ONTARIO COURT OF JUSTICE
DATE: 2025 01 06
COURT FILE No.: Toronto 23-48117812 & 23-48117813
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
SHAGGHARRY SCOTT
Before Justice Patrice F. Band
Reasons re. s. 8 Charter Application – “Step 6 Garofoli” and s. 9 Charter
Ms. C. Josic .............................................................................................. counsel for the Crown [1]
Mr. C. Zeeh......................................................................... counsel for the Applicant, Mr. Scott
BAND J.:
I. Background
1On September 19, 2023, members of the Toronto Police Service obtained Criminal Code search warrants for two residential addresses and one motor vehicle believed to be associated with Mr. Scott. He was required by judicial interim release to live at one of those addresses (in Scarborough). The warrants were executed on September 20.
2The warrants were based on information received from a confidential source (CS) and other investigative measures. On the strength of the information police had received, they decided to place Mr. Scott under arrest at a gas station that he attended with his co-accused, Mr. Cassells-Watson. When they searched Mr. Scott incident to arrest, police found a loaded Glock handgun in his satchel along with a quantity of cocaine, marijuana and cash. Police found more cocaine and a scale in plain view on his bedroom desk when they executed the warrant at the Scarborough home.
3On behalf of Mr. Zeeh, Mr. Scott applied to quash the search warrants on the basis that they were founded on insufficient grounds, contrary to s. 8 of the Charter. If the warrant could not have issued, then Mr. Scott’s arrest was arbitrary, contrary to s. 9 of the Charter.
4I have already advised the parties of my finding that the warrants in this case met the required standard and complied with s. 8 of the Charter. These are my reasons for that conclusion.
II. Procedure
5This was a straight-forward Garofoli hearing [2]. The ITO relied heavily on the information provided by the CS. As such, it was heavily redacted. On behalf of the Crown, Ms. Josic conceded that the warrant, as redacted, could not have issued and sought to rely on “Step 6” as described in Garofoli. To that end, Ms. Josic created draft judicial summaries of the redacted portions of the ITO and provided them to Mr. Zeeh prior to the hearing. After a series of exchanges between Ms. Josic and me, which were held in camera or by email, additional versions of the judicial summaries were created. Mr. Zeeh was invited to make submissions and his comments led to changes in the creation of a final Judicial Summary. At the end of that procedure, Mr. Zeeh conceded that the Summary was sufficient to make him aware of the nature of the excised material and to enable him to challenge the warrant in submissions or by evidence. He did not seek leave to cross-examine the affiant or call evidence.
III. The Issue
6Mr. Zeeh did not allege any material errors, omissions or misrepresentations. As he put it in oral submissions, the real question here is whether police were in possession of reasonable and probable grounds to believe that Mr. Scott was in current possession of a firearm on his person or at the Scarborough address. That question turns on whether the CS’s information was credible, compelling and corroborated.
IV. Applicable Legal Principles
7I have reminded myself of the guiding principles set out in R. v. Crevier, 2015 ONCA 619 at paras. 62-90. They include:
- A search warrant is presumptively valid, and the challenging party bears the onus of demonstrating, on a balance of probabilities, that it should not have issued.
- A Garofoli hearing is a pre-trial, threshold evidentiary hearing challenging the validity of an evidence-gathering tool. It is not a trial.
- Where, as here, the warrant depends on confidential informants, the reliability of those informants must be assessed using the “three Cs” discussed in R. v. Debot: the tip must not only be compelling, it must come from a credible source and be corroborated by police investigation. These three factors are assessed on a totality of circumstances, keeping in mind that weaknesses in one factor may, to some extent, be compensated by strengths in the other two factors.
- As the reviewing judge, I am to consider the totality of the circumstances and the context in which the hearing took place, including the fact that the accused has been unable to directly challenge the redacted portions of the ITO.
8The test on warrant review was explained by Justice Watt in R. v. Sadikov, 2014 ONCA 72, at para. 84:
The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge…The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search…Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued.
9I must also consider the fact that authorizing justices, like triers of fact at trial, are entitled to draw reasonable inferences from the contents of the ITO: see Sadikov, supra, at paras. 81-82, citing R. v. Vu, 2013 SCC 60 at para. 16, among others. So, too, can officers rely on their training and experience to arrive at their reasonable and probable grounds: R. v. Wu, 2013 SCC 60 at paras. 55-57 and 64.
V. The Arguments
10Mr. Zeeh was able to help me by pointing to potential concerns with the CS’s information. He argued that the police surveillance corroborated Mr. Scott’s mundane daily activities. With respect to credibility, he asked me to consider the CS’s track record for accuracy. Did the affiant mention occasions when the CS’s information did not lead to an arrest or seizure of contraband? The idea, here, being analogous to an “error rate.” He also inquired about what was disclosed concerning the CS’s motivation – considerations on sentence or outstanding charges being a stronger concern.
11With respect to the degree to which the CS’s information was compelling, Mr. Zeeh reminded me to consider how the information came to be known (First hand? On social media?); whether it was generic or specific; and whether it was timely. The point being to determine whether it was strong enough to support a reasonable belief that Mr. Scott was in possession of a firearm at the time on his person, in the motor vehicle or at the Scarborough address. He reminded me of the concern for “roving grounds” discussed in R. v. Herta, 2018 ONCA 927, [2018] O.J. No. 6429 (C.A.) and others. In passing, I note that Mr. Zeeh’s arguments concerning the Scarborough address were written when the security footage of that building had yet to be disclosed to him. He fairly walked them back a great deal in oral argument. The surveillance footage is said to show Mr. Scott accessing the unit “a plethora of times, approximately 30” between September 17 and 19, 2023, at times using a key to lock and unlock the door. This, together with his long-standing obligation to reside there by virtue of a bail and some bail checks during that period, supports the inference that he resided there, despite the fact that he had a connection to a different residence in North York.
12Ms. Josic relied on her factum, in which she detailed the degree to which, in her view, the CS’s information was credible, compelling and corroborated and supported the issuance of the warrant. Her approach was a very cautious one, which depended on my ability to review the unredacted ITO, for obvious reasons.
VI. Analysis
13Justice Code provided a useful explanation of the Debot criteria in R. v. Greaves-Bissesarsingh [2014] O.J. No. 3892 at para. 35 (S.C.J.):
It appears from Wilson J.’s reasons in Debot, and from the subsequent jurisprudence, that the term “compelling” refers to considerations that relate to the reliability of the informer’s tip such as the degree of detail provided and the informer’s means of knowledge, that is, whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip. The term “credibility” would appear to capture considerations such as the informer’s motivation, criminal antecedents, and any past history of providing reliable information to the police. The term “corroboration” refers to supporting information uncovered by the police investigation.
14I agree with Mr. Zeeh that the police were not able to corroborate much of what the CS told them and that what did constitute corroboration was largely mundane with few exceptions, including information about Mr. Scott’s satchel. But in this case, I found that the credible and compelling nature of the information compensated for the relatively weak degree of corroboration. For this reason, I focus on the CS’s credibility and the extent to which their information was compelling. Also, given that the warrants in this case depended on only one CS and that the redactions were so comprehensive, I have decided that, like Ms. Josic, I must also be very cautious in my approach.
The Compelling nature of the CS’s information
[15] Much of the information provided by the CS was based on first-hand knowledge. Because the information provided takes up just over one page, there seems little point in providing paragraph references. Instead, I have chosen to provide a brief explanation of why it is compelling, which will be redacted in the version that is accessible to the parties and the public. An unredacted version will be kept under seal with the court file.
xxx xx xx xxxxxxx xxxxx xx xx. xxxxx xxx xxxxx xxxxxxxxx xxxxxxxxxxxxxxxxxxxxxx. xxxx xxxx xxxx xx. xxxxx xx xxxxxx xxxxx xxx xxxx xxxx xxx. xx. xxxxx xxxx xxxx xx. xxxx xxxx xxxx xx. xxxxx xxxxx xxxx xxxxx xxxxxxx xx xxxxx xxxx xxx xxxx xxx xx xxx xxxxxxxxxx. xxxx, xxxx xxx xxx xxxxxxx xx xxxxx xx xxxxx, xxxxxxxxx xxxxxxxx: xx xxxxxxxxx xx xxx xx xxxxxxxxx xx, xxxx xxxx xxx xxx xxxxxx xx xxx xxxxxxx xxxx xx. xxxxx
16It was open to the issuing justice to find that the CS’s information was compelling. It was not conclusory or based on rumour or gossip, but detailed and based on first-hand knowledge. The issuing justice also had before them what they needed to make a judicious determination as to its currency.
Credibility of CS
17The unredacted ITO that was before the issuing justice contains information about the CS’s involvement with the criminal justice system (including a criminal record or outstanding charges, if any) and put them in a position to assess its impact on the CS’s credibility. The ITO also discloses the CS’s motivation as an informant, as well as the fact that they were cautioned about giving false information. (Whether this included advising them that there would be no consideration until the results of the investigation were substantiated, as asserted in Ms. Josic’s factum at para. 135, is not entirely clear, but it does not cause me concerns in the particular facts of this case.) xxxx xxx xxx xxxxxxxxx xxxxxx xxx xxxxxx. xxxx, xxxx xxx “xxxxxxxxxx xxxxxxx xxxxxx xx.”
18In some circumstances, an affiant’s failure to indicate whether a CS had provided information that proved fruitless in the past might raise concerns about their reliability; however, in this case, the issuing justice was in a position to make a judicious determination of the CS’s reliability as an informant on the basis of the information provided in the ITO, seen in its totality. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. It was open to the issuing justice to find that the CS’s information was credible.
VII. Conclusion as to Validity of the Warrants and Arrest
19It is true that the police surveillance and security footage in this matter do not corroborate the very criminal activity at issue per se. This, of course, is rarely possible and is not required: see R. v. Herta, 2018 ONCA 927 at para. 38. Nor do other aspects of the investigation corroborate much that is not mundane or likely to be known more broadly. However, the CS’s credibility and the compelling nature of their information compensate for the limited corroboration provided by the police investigation.
20Viewed in its totality and from a commonsense perspective, the ITO provided reliable and credible evidence on the basis of which the warrants could have issued. For the same reasons, Mr. Scott’s arrest was also justified.
Released: January 6, 2025
Justice P.F. Band
1These reasons have been reissued to correct a mistake as to Ms. Josic’s office.
[2] R. v. Garofoli, 1990 SCC 52, [1990] 2 S.C.R. 1421.
https://www.minicounsel.ca/scc/1990/52