Court of Appeal for Ontario
Date: 2017-01-17
Docket: C60067 and C60484
Justices: Doherty, Hourigan and Roberts JJ.A.
Between
Her Majesty the Queen Respondent
and
Jermin Shivrattan and Stanley Silvera Appellants
Counsel
Faisal Mirza, for the appellant Jermin Shivrattan
Eva Taché-Green, for the appellant Stanley Silvera
John Neander, for the respondent
Heard
October 6, 2016
Appeal
On appeal from the convictions entered by Justice Todd Ducharme of the Superior Court of Justice on October 27, 2014 and the sentence imposed on the appellant, Stanley Silvera, on December 4, 2014.
Doherty J.A.:
I. Overview
[1] On August 4, 2011, the police executed a telewarrant at units 904 and 504 in a condominium at 2464 Weston Road in Toronto. They found the appellant, Silvera, in apartment 904 and the appellant, Shivrattan, in apartment 504. The police discovered firearms, ammunition, cocaine and marihuana in both apartments.
[2] At trial, the appellants unsuccessfully challenged the telewarrant alleging a breach of s. 8 of the Charter (the "s. 8 application"). On the trial proper, both appellants argued that the Crown had failed to prove they were in possession of the guns, ammunition and drugs found in the units in which they were arrested. Shivrattan testified that he was dog sitting for a friend in unit 504 when the police arrived and had no knowledge of the contents of the unit. Silvera did not testify.
[3] The trial judge found that Shivrattan was in possession of a loaded handgun found lying at his feet when the police entered the apartment bedroom. The trial judge found Shivrattan guilty on various counts relating to that firearm. He acquitted Shivrattan on the charges relating to the other contraband found in unit 504. The trial judge found that Silvera was in possession of the firearms, ammunition and drugs found in apartment 904. He found Silvera guilty on all counts.
[4] Silvera received an effective sentence of 10 years: five years in custody with five years' credit for presentence custody. Shivrattan received an effective sentence of six years: one year, two months in custody with four years and 10 months' credit for presentence custody.
[5] The appellants' conviction appeals focus on the trial judge's rulings on the s. 8 application. They do not challenge their convictions on any other ground. Silvera also appeals his sentence. Shivrattan does not appeal sentence.
II. The Section 8 Application at Trial
[6] The telewarrant was issued on August 4, 2011, on the basis of an Information to Obtain ("ITO") sworn by Detective Constable Correia (the "affiant"). The affiant swore that he had reasonable and probable grounds to believe, and did believe, that cocaine and related material would be found in units 904 and 504. The ITO alleged that Silvera was using both apartments to further his drug trafficking activity. The ITO did not mention Shivrattan. The grounds for the affiant's belief came almost exclusively from information provided to him by a confidential informant ("CI").
[7] Prior to the trial, the Crown gave the defence a heavily redacted version of the ITO. With a few minor and, for present purposes, irrelevant exceptions, the redactions were made to protect the identity of the CI.
[8] On the s. 8 application, the defence filed the transcript of the cross-examination of the affiant at the preliminary inquiry. Although the defence could not challenge the warrant at the preliminary inquiry, they could seek to cross-examine the affiant under the authority of R. v. Dawson. The Crown had agreed that the affiant could be cross-examined on parts of the ITO at the preliminary inquiry. The preliminary inquiry judge carefully controlled the questions which could be put to the affiant to protect the CI's identity.
[9] On the s. 8 application, the defence also filed a transcript of Sally-Ann Dooman's preliminary inquiry testimony. Dooman was the property manager of 2464 Weston Road until August 5, 2011. According to the affiant, Dooman supplied corroboration connecting Silvera to units 904 and 504 and connecting unit 904 to ongoing drug activity. The affiant's summary of his conversation with Dooman was one of the few parts of the ITO that had not been redacted.
[10] The Crown conceded that the redacted version of the ITO did not reveal grounds upon which a justice, acting judicially, could be satisfied that there were reasonable grounds to search the two units. In other words, the Crown conceded that without the CI's information, the warrant could not have issued.
[11] The Crown did not, however, concede the s. 8 application. Instead, the Crown resorted to what has come to be known as a "Step Six" procedure. That procedure was first described in R. v. Garofoli, and has been discussed at some length by this court in R. v. Crevier; and R. v. Reid. When the Crown invokes "Step Six", the trial judge gives defence counsel a judicial summary of the redacted parts of the ITO. Defence counsel, using that summary, the redacted ITO and whatever additional information it has available to it—such as Crown trial disclosure or preliminary inquiry transcripts—attempts to convince the trial judge that the contents of the unredacted ITO, which defence counsel has not seen, could not justify the issuance of the search warrant.
[12] The Crown prepared a proposed summary of the redacted parts of the ITO. The trial judge went through that summary in open court, in the presence of defence counsel, comparing it with the unredacted version of the ITO, while at the same time being careful to not reveal the contents of the redacted parts of the ITO. The trial judge ultimately accepted many, but not all, of the proposed redactions. Some he found were unnecessary to protect the CI's identity. The trial judge also modified some of the Crown's proposed summaries of the redacted parts of the ITO to include additional information for the defence.
[13] The Crown accepted the trial judge's summary and his modifications to the redactions. Defence counsel received a copy of the ITO as ultimately redacted by the trial judge and the trial judge's summary of the redactions.
[14] Defence counsel advanced four motions on the s. 8 application. First, relying on R. v. Garofoli, counsel argued that the judicial summaries of the redacted portions of the ITO did not adequately inform the defence of the contents of the redacted portions of the ITO to permit the defence to properly challenge the ITO. Counsel submitted that under Garofoli, absent adequate judicial summaries, the redacted parts of the ITO could not be considered in assessing the adequacy of the grounds set out in the ITO. Defence counsel, relying on the Crown's concession, submitted that without the information in the redacted portions of the ITO, there was no basis upon which the warrant could be issued.
[15] Second, counsel argued that amicus should be appointed and allowed to see the unredacted ITO to assist the trial judge in determining what redactions were necessary and how best to summarize the redactions to maximize the information available to defence counsel without compromising the confidential informant privilege.
[16] Third, defence counsel sought leave to cross-examine the affiant on certain specified parts of the ITO, including the information Dooman supplied to the affiant.
[17] Fourth, counsel argued that even if the trial judge could consider the unredacted parts of the ITO, the ITO did not justify the issuance of the warrant based exclusively on information from a CI. In support of the argument, counsel argued that some of the statements in the ITO were false or, at least, materially misleading.
[18] The trial judge ruled first on the defence motions that the judicial summaries were inadequate and that amicus should be appointed to assist the trial judge in providing a more detailed summary. He dismissed both motions.
[19] The trial judge dealt next with the motion to cross-examine the affiant. He dismissed that motion. I will address the trial judge's reasons in more detail below.
[20] Lastly, the trial judge considered the submission that the ITO, including the redacted portions, could not justify the issuance of the warrant. In rejecting that submission, the trial judge observed that he had reviewed the unredacted ITO and that it contained ample grounds to justify the warrant.
[21] The order in which the motions were argued and decided on the s. 8 application merits a comment. Counsel argued the adequacy of the judicial summaries on the "Step Six" motion before the trial judge ruled on the defence motions to appoint amicus and to cross-examine the affiant. Both of those motions, if successful, may have provided the defence with additional information to assist in their challenge to the adequacy of the judicial summary and ultimately the ITO. The motions to appoint amicus and to cross-examine the affiant should have been argued and decided before counsel addressed the adequacy of the judicial summary and ultimately the adequacy of the ITO. As it turns out, the order in which the motions were brought and decided did not matter as the trial judge dismissed the motion to appoint counsel and the motion to cross-examine the affiant.
III. The Arguments on Appeal
[22] The four arguments outlined above are renewed on appeal. Counsel for Shivrattan further submits that the ITO did not contain grounds that could reasonably justify a night search. Counsel contends that without proper justification for a night search, the execution of the warrant at night renders the searches unreasonable and a violation of s. 8. Counsel for Silvera also makes one additional submission. She argues that the trial judge's reasons for holding that the warrant was properly issued are so inadequate as to constitute a freestanding error in law.
[23] I will first address the argument that the trial judge erred in law in refusing to allow the defence to cross-examine the affiant. I think this submission succeeds and is fatal to the convictions.
A. The Refusal to Permit Cross-Examination of the Affiant
(i) Challenging the Validity of a Search Warrant
[24] At trial, the defence may challenge the constitutionality of a search conducted under the authority of a search warrant by demonstrating that the contents of the ITO relied on to obtain the warrant could not justify its issuance. If the challenge is successful, the search is treated as warrantless, rendering it unreasonable and contrary to s. 8 of the Charter. The defence must then demonstrate that the fruits of the search should be excluded under s. 24(2) of the Charter: R. v. Pires.
[25] On a challenge to the validity of the warrant, the reviewing judge does not make a de novo assessment of the ITO's contents. Rather, he or she decides whether those contents provide a basis upon which the issuing justice, acting judicially, could find reasonable and probable grounds to believe that an offence has been committed and that evidence of the offence would be found at the specified place: see R. v. Morelli; Garofoli; Pires; R. v. Hosie; and Reid.
[26] Challenges to the validity of a warrant are described as facial or sub-facial. On a facial challenge, counsel argues that the ITO, on its face, does not provide a basis upon which the issuing justice, acting judicially, could issue the warrant. A sub-facial validity challenge involves placing material before the reviewing judge that was not before the issuing justice. On a sub-facial challenge, counsel argues that the material placed before the reviewing judge should result in the excision of parts of the ITO that are shown to be misleading or inaccurate. The warrant's validity must then be determined by reference to what remains in the ITO. On a sub-facial challenge, counsel may also argue that the augmented record placed before the reviewing judge demonstrates that the affiant deliberately, or at least recklessly, misled the issuing judge, rendering the entire ITO unreliable as a basis upon which to issue a warrant: see Morelli; R. v. Sadikov; Crevier; and R. v. Araujo.
[27] The reviewing judge, when determining whether the warrant should have been granted, must consider the totality of the circumstances as set out in the ITO and as amplified by any additional material placed before him or her. When, as in this case, the information to support the warrant comes almost entirely from a CI, the totality of the circumstances inquiry focuses on three questions. Does the material before the reviewing judge demonstrate that the CI's information was compelling? Does the material demonstrate that the CI was credible? And does the material demonstrate that the CI's information was corroborated by a reliable independent source? See R. v. Debot; Hosie; and R. v. Rocha.
[28] The first question addresses the quality of the CI's information. For example, did he purport to have first-hand knowledge of events or was he reporting what he had been told by others? The second question examines the CI's credibility. For example, does he have a long record which includes crimes of dishonesty, or does he have a motive to falsely implicate the target of the search? The third question looks to the existence and quality of information independent of the CI that offers some assurance that the CI provided accurate information. The answers to each of the questions are considered as a whole in determining whether the warrant was properly issued in the totality of the circumstances. For example, particularly strong corroboration may overcome apparent weaknesses in the CI's credibility: see Crevier.
(ii) The Motion to Cross-Examine the Affiant
[29] In this case, counsel mounted a sub-facial validity challenge, relying on the affiant's and Dooman's preliminary inquiry testimony, the affiant's notes of his conversation with Dooman, and an email Dooman sent the affiant on August 4, 2011 summarizing her knowledge of units 504 and 904 and unlawful activity in the building. Counsel sought to cross-examine the affiant in aid of their sub-facial challenge.
[30] The heavily redacted nature of the ITO left defence counsel with little to go on, either in respect of the cogency of the CI's information or the CI's credibility. The defence did however have the information said by the affiant to corroborate the CI. That information came from Dooman and was summarized in para. 12 of Appendix C to the ITO. That paragraph was not redacted.
[31] The affiant, in his testimony at the preliminary inquiry, had referred to Dooman's information as providing "the corroboration I needed." Not surprisingly, the defence's motion to cross-examine the affiant, and more generally its overall challenge to the telewarrant's validity, focused largely on the corroboration Dooman allegedly provided.
[32] In the ITO, the affiant swore that he spoke with Dooman about an hour before he applied for the telewarrant. He summarized his conversation with Dooman as follows:
She had previously expressed concern to Toronto Police about drug dealing from unit 904, the unit Silvera had lived in for the previous year. There were many people in and out of unit 904 (Appendix C, paras. 12(a),(b) and (c)).
She had been advised by the superintendent of the condominium that Silvera had been seen accessing unit 504 with a key. She did not know who rented unit 504 (Appendix C, paras. 12(d) and (e)).
[33] The defence moved to cross-examine the affiant on para. 12(a) of the ITO, arguing that there were significant inconsistencies between what the affiant had attributed to Dooman in that paragraph and what other sources indicated Dooman had said. Counsel argued that there was a direct contradiction between para. 12 of the ITO and Dooman's testimony at the preliminary inquiry. In her evidence, she denied speaking to the police about drug dealing in unit 904.
[34] The defence also relied on the cross-examination of the affiant at the preliminary inquiry, which had produced testimony indicating there were reasons to question the reliability of the contents of para. 12 of the ITO. Counsel submitted that even the affiant expressed uncertainty as to what Dooman said to him. He referred to having "three versions" of the conversation by the time he testified at the preliminary inquiry.
[35] The defence further argued that it should be permitted to cross-examine the affiant about Dooman's statement that the superintendent had seen Silvera use a key to enter apartment 504 (paras. 12(d) and (e)). The defence submitted that it should be entitled to know what details, if any, the affiant had sought, and Dooman had provided, about her conversation with the superintendent. The defence maintained that depending on the inquiries made and the level of detail provided, the statement may have had very little corroborative value.
[36] Lastly, the defence argued that the alleged statements from Dooman in para. 12 of the ITO were crucial to the warrant's sustainability. Without her information there was no corroboration. In fact, argued the defence, without her information, the affiant did not believe he had reasonable grounds to obtain the telewarrant. Absent that subjective belief, the telewarrant could not stand.
[37] The trial judge refused to permit cross-examination of the affiant. He correctly observed that the defence did not have a right to cross-examine the affiant but had to demonstrate that there was a reasonable likelihood that the proposed cross-examination would generate evidence discrediting the existence of one or more of the grounds for the issuance of the warrant: Garofoli; and R. v. Green.
[38] After referring to the controlling case law, the trial judge turned specifically to para. 12(a) of Appendix C to the ITO, and the conflict between Dooman's evidence and the contents of para. 12(a). In rejecting the motion to cross-examine on para. 12(a), the trial judge said:
The only possible basis, it seems to me, that could take on the sort of significance that is stated in Garofoli would be if I were to conclude that in fact Officer Correia was misrepresenting the information he was putting in the information to obtain and had either created the confidential informant out of whole cloth or had fabricated the elements of what it was the confidential informant had told him. In all of the circumstances of this case, I am not prepared, having seen the evidence I have seen, to conclude that that is the case. [Emphasis added.]
[39] The trial judge also refused to allow cross-examination of the affiant about any conversations he had with Dooman concerning her information that Silvera had a key to apartment 504 (paras. 12(d) and (e)). The trial judge reasoned that because the affiant had identified Dooman's information about the key as hearsay from the superintendent, there was no value in any cross-examination on that part of the affidavit.
(iii) The Trial Judge's Errors
[40] The trial judge misconstrued the purpose of the proposed cross-examination of the affiant on para. 12(a). The cross-examination did not seek to demonstrate that the CI did not exist or that the CI had not given information to the affiant. The cross-examination aimed to undermine the affiant's assertion that Dooman had corroborated the CI's story. The existence and quality of any corroboration of the CI was important to the warrant's validity.
[41] In para. 12(a), the affiant asserted that Dooman told him she had previously gone to the police with specific concerns about drug dealing at unit 904. The affiant's contemporaneous notes of his conversation with Dooman on August 4, 2011 do not support this assertion. In the notes, he indicates that Dooman talked to the police "about a problem tenant she thought was dealing drugs." The notes also refer to many people coming in and out of unit 904. The notes do not indicate that Dooman connected unit 904 with drug trafficking.
[42] Dooman's August 4, 2011 email to the affiant (which was not available to the affiant when he prepared the ITO) also makes no reference to Dooman speaking to the police about drug trafficking in unit 904. In the email, Dooman refers to Silvera as being involved in "some illegal activity" and as associating with "unsavoury looking" people. Although Dooman refers to drugs being trafficked in the condominium building, she does not connect drug dealing to Silvera.
[43] Dooman's preliminary inquiry testimony is in direct conflict with para. 12(a). She testified that she spoke to the police about unit 904 in May or June of 2011. Defence was not permitted to inquire as to the reason for speaking to the police. Dooman further testified, however, that she had never previously expressed any concern to the Toronto Police about drug dealing specifically out of unit 904. Her only issue with Silvera involved his parking in the wrong spot.
[44] The uncertainty over what Dooman said to the affiant about drug dealing and apartment 904 is best captured by the affiant's own testimony at the preliminary inquiry. When being pressed in cross-examination about what Dooman had said, the affiant replied:
Well to be honest I have three different versions of what she said. Bear with me because it's the email … my notes and the ITO that I was drafting.
[45] The various versions of what Dooman said to the affiant provided ample grounds justifying cross-examination of the affiant on his conversation with Dooman as it related to drug trafficking by Silvera in unit 904 (paras. 12(a), (b) and (c)). The material raised the real possibility that general comments made by Dooman about Silvera's connection to illegal activities and unsavoury people had somehow morphed into an assertion by her of a specific prior complaint to the police about drug dealing in the unit where Silvera lived. The potential difference in the probative value of the general comments compared to the very specific allegation in para. 12(a) of the ITO could be significant in determining whether the ITO revealed reasonable and probable grounds for a search of unit 904.
[46] The trial judge also erred in foreclosing cross-examination on the affiant's conversation with Dooman about Silvera's connection to apartment 504 (paras. 12(d) and (e)). While it is true that the affiant clearly identified the hearsay nature of Dooman's information about Silvera's use of a key to enter unit 504, there were potentially several questions that could have been put to the affiant that would have had significant impact on the probative value of that hearsay evidence. Not all hearsay is created equal.
[47] For example, the affiant might have been asked on cross-examination whether he questioned Dooman about when she spoke to the superintendent and whether she received any details from him. If Dooman spoke to the superintendent months earlier and if the superintendent referred to a single event, those details would significantly undermine the corroborative value of the superintendent's comments. Furthermore, if the affiant indicated that he had not questioned Dooman about her conversation with the superintendent, the affiant's failure to follow up on the statement would potentially diminish the probative value that could reasonably be attached to Dooman's statement about the information she had received from the superintendent.
[48] At the end of his reasons for refusing cross-examination, the trial judge said:
As for the informer's status and reliability, I am of the view that the confidential informant's reliability is made out in the ITO. I appreciate it is difficult for the defence, who have not seen everything that I have seen, to accept my say-so on that regard and to the extent that the concern was raised with respect to Ms. Dooman, I view it as, again, something that would not go to the preconditions for the search warrant. So, I will not permit that cross-examination either.
[49] The trial judge erred in taking into account his own assessment of the confidential informant's reliability based on his reading of the unredacted ITO to refuse the application to cross-examine the affiant. The ultimate reliability of the information in the ITO is not in issue on a motion to cross-examine the affiant. The trial judge is only concerned with whether there is a reasonable likelihood that the proposed cross-examination would assist in determining whether the grounds existed for the issuance of the warrant. The defence is not required to show that the cross-examination will succeed in demonstrating that unreliability: Green; and Garofoli.
[50] Crown counsel, in arguing that the trial judge properly exercised his discretion to refuse cross-examination, submits that the trial judge could (but not necessarily did) take into account the fact that the affiant had been cross-examined at the preliminary inquiry. Crown counsel reasons that the trial judge was entitled to consider whether any further cross-examination was necessary to permit full answer and defence.
[51] Crown counsel refers to R. v. Oliynyk. He reads Oliynyk as holding that when the affiant has been cross-examined at the preliminary inquiry, further cross-examination at trial would be permitted only if the defence could demonstrate that the further cross-examination will elicit additional information from the affiant relevant to the validity of the warrant.
[52] I think Oliynyk could be read as the Crown reads it. However, with respect, I cannot agree with that approach. The affiant's cross-examination at the preliminary inquiry was part of the s. 8 application record at trial. To the extent that the affiant's preliminary inquiry testimony, combined with the other material before the trial judge, revealed a basis upon which cross-examination of the affiant should be permitted, the affiant's preliminary inquiry testimony supported the defence motion to cross-examine the affiant.
[53] I know of no basis upon which the defence can be obligated to accept cross-examination at the preliminary inquiry as a substitute for cross-examination at trial. It is one thing to encourage counsel to agree to use preliminary inquiry transcripts to expedite trial proceedings, and quite another for a trial judge to foreclose cross-examination based on his or her assessment of whether cross-examination at trial will add anything to the cross-examination conducted at the preliminary inquiry.
[54] When the defence shows a reasonable likelihood that cross-examination of the affiant on the s. 8 application at trial will generate evidence tending to discredit the existence of one or more of the grounds for the issuance of the warrant, the defence is entitled to conduct that cross-examination as part of the s. 8 application at trial regardless of whether that cross-examination will add to the cross-examination conducted at the preliminary inquiry.
[55] The decision to allow or refuse cross-examination of the affiant involves the exercise of discretion by the trial judge. Absent an error in principle, a material misapprehension of the evidence or an unreasonable determination, this court will defer to the trial judge: Garofoli. The errors set out above constitute errors in principle justifying appellate intervention. The appellants were entitled to cross-examine the affiant on his conversations with Dooman. That cross-examination would of course be subject to the overriding need to protect the identity of the confidential informant.
[56] I am satisfied that the failure to permit cross-examination requires a new trial. There is a realistic possibility that had cross-examination been permitted, the reviewing judge may have determined that para. 12 should be excised from the affidavit, or that at least it should be given very little weight. Had the trial judge taken that approach, the validity of the warrant would be an open question.
B. The Other Grounds of Appeal
[57] It is unnecessary to address the submissions relating to the adequacy of the judicial summary and the trial judge's ultimate assessment of the adequacy of the grounds relied on for the issuance of the telewarrant. Both issues, as well as any others that may arise on the s. 8 application, will be for the judge at the new trial to decide based on the record placed before that judge. Unlike this trial judge, the judge at the new trial will have the advantage of the recent jurisprudence from this court setting out in some detail the procedures to be followed on a "Step Six" motion: see Reid; and Crevier.
[58] I also see no reason to consider the submission that the trial judge's reasons for upholding the warrant were so inadequate as to constitute an error in law. Nothing said on that ground would assist at the new trial. The other two grounds of appeal do however warrant some comment.
(i) The Night Time Execution of the Telewarrant
[59] The telewarrant was executed at about 10:50 p.m. on August 4, 2011. Counsel for Shivrattan submits that the Criminal Code requires that if a warrant is to be executed at night (after 9:00 p.m., see Criminal Code, s. 2), the night time execution must be justified under the terms of s. 488 of the Criminal Code. He argues that this ITO provides no such justification.
[60] Crown counsel submits that the telewarrant was issued under the authority of s. 11 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA") and not under the Criminal Code. Crown counsel points out that s. 11(1) of the CDSA provides that warrants may be executed "at any time". Counsel also notes that s. 488 of the Criminal Code is not made applicable to warrants and telewarrants issued under s. 11 of the CDSA. The Crown's submission finds considerable support in the case law: R. v. Saunders, affirmed on other grounds; R. v. Dueck; and R. v. Newell.
[61] I would follow those authorities. Unlike warrants issued under the Criminal Code, there is no statutory presumption that warrants issued under s. 11 of the CDSA are to be executed before 9:00 p.m. unless night time execution is justified under s. 488 of the Criminal Code. That does not mean that the time at which a warrant is executed may not factor into the reasonableness of the manner in which the warrant is executed. It means only that when considering the reasonableness of the manner in which a warrant issued under s. 11 of the CDSA was executed, the Criminal Code distinction between warrants executed before and after 9:00 p.m. has no application.
[62] There is nothing in this record to suggest that the execution of the warrant at 10:47 p.m., as opposed to sometime earlier, had any additional adverse effect on the privacy or security interests of the appellants. In fact, I do not understand defence counsel at trial to have challenged the reasonableness of the manner in which the warrant was executed.
(ii) The Motion to Appoint Amicus to Assist the Trial Judge at Step Six
[63] At trial, during his submissions on the adequacy of the judicial summary prepared by the trial judge, counsel for Shivrattan submitted that the trial judge should appoint amicus to assist the trial judge in deciding how the ITO should be redacted and in the preparation of the judicial summaries of the redacted portions. Counsel's submissions were very brief and came at the end of his arguments about the adequacy of the judicial summary. Counsel provided no specifics as to the role of amicus or the procedure to be followed to protect the CI's identity.
[64] The trial judge summarily dismissed the request, indicating that it came too late in the s. 8 proceeding. He also held that he was confident that any informed person reviewing the unredacted ITO would make the same redactions as he had to protect the CI's identity.
[65] The "Step Six" procedure is designed to balance the need to protect the identity of the confidential informant and the accused's right to make full answer and defence at trial. It falls to the trial judge to tailor a procedure which best achieves that balance in each individual case. R. v. Basi establishes that in "particularly difficult cases" the trial judge's discretion extends to the appointment of amicus to assist in the consideration of issues relevant to confidential informants.
[66] The appointment of amicus on a "Step Six" procedure is the exception rather than the rule. It is incumbent on the defence to demonstrate why the specific circumstances of the case require the appointment of amicus. It is equally the responsibility of the defence to set out a proposed procedure which will allow amicus to perform the role anticipated by the defence while protecting the confidentiality of the CI's identity. It is not enough to rely on the bromide that two heads are always better than one and that the appointment of amicus will inevitably enhance at least the appearance of the fairness of the "Step Six" procedure. To accept those arguments is to make the appointment a routine part of the procedure.
[67] Because of the nature of the confidential informant privilege and the very real risk associated with the breach of that privilege, there are many sensitive issues that would have to be resolved before the trial judge could appoint amicus on a "Step Six" procedure. I offer one example.
[68] Experience teaches that the disclosure of apparently innocuous facts, particularly to an accused, can reveal a CI's identity. When editing the unredacted ITO and preparing a summary of those edits, the trial judge has the benefit of submissions from Crown counsel who, in turn, has the benefit of information supplied by the investigating police. The trial judge quite properly relies heavily on the Crown to identify facts which could inadvertently identify the CI.
[69] If amicus were to be appointed, would amicus be allowed to consult with the defence after reading the unredacted ITO and listening to the Crown's comments about proposed redactions? If so, what steps could be taken to ensure that amicus did not inadvertently disclose, through some apparently innocuous comment, a fact that would reveal the identity of the CI to the defence? Amicus would, of course, not have the benefit of the presence of Crown counsel during his discussions with the defence. This risk may not arise in some situations and there may be ways to avoid the risk while maintaining the value of amicus in other situations. I raise the problem only as an example of the kind of issue which must be considered and resolved before amicus can be appointed.
[70] Counsel's very brief submissions offered no basis upon which the case could be characterized as one of those "particularly difficult cases" meriting the appointment of amicus. Nor did counsel provide a plan for how they would minimize the risk of inadvertent disclosure should amicus be appointed. The motion was properly dismissed.
IV. Conclusion
[71] I would allow the appeals, quash the convictions and order a new trial on all counts on which the appellants were convicted. I would also lift the conditional stays entered by the trial judge on the authority of R. v. Kienapple, and order new trials on those counts as well. The acquittals entered by the trial judge stand.
Released: January 17, 2017
Doherty J.A.
I agree C.W. Hourigan J.A.
I agree L.B. Roberts J.A.
Footnote
[1] The court was referred to two trial decisions from this province in which motions were brought to appoint amicus on a "Step Six" procedure. The trial judge refused to appoint amicus in both cases: see R. v. Marakha (September 17, 2014), Toronto, 13-30000622-0000 (Ont. Sup. Ct.), at paras. 49-54; and R. v. Thompson, at paras. 55-60. The court was not referred to any case in which amicus was appointed by the trial judge on the "Step Six" procedure.
