Court Information

Court of Appeal for Ontario

Date: October 13, 2017

Docket: C58794

Panel: Doherty, Huscroft and Miller JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Larkland Bennett Appellant

Counsel

For the Appellant: Diana M. Lumba and Carlos F. Rippell

For the Respondent: John Patton

Hearing and Appeal

Heard: March 23, 2017

On appeal from: The conviction entered by Justice John R. Sproat of the Superior Court of Justice, sitting with a jury, on February 14, 2014.

Decision

Huscroft J.A.:

OVERVIEW

[1] The police executed a search of Larkland Bennett's apartment pursuant to a telewarrant issued on April 15, 2011, looking for drugs. No drugs were found, but a loaded firearm and ammunition were found in the pocket of a white fur coat in the closet. The handgun – its serial number defaced – had one bullet in the chamber and six in the clip.

[2] Bennett brought a pre-trial application challenging the validity of the warrant, alleging a breach of s. 8 of the Canadian Charter of Rights and Freedoms and seeking to exclude the firearm under s. 24(2). He also alleged breaches of his s. 8 and s. 9 Charter rights flowing out of a second search, this search incident to his arrest, and sought to have evidence found during that second search excluded.

[3] The trial judge found that the information to obtain the warrant (the "ITO") was, on its face, insufficient to support the warrant and that s. 8 had been breached. However, he refused to exclude the evidence under s. 24(2). The trial judge also found that the search incident to arrest violated Bennett's s. 8 and s. 9 Charter rights. Evidence obtained pursuant to that search – including keys to his apartment, cell phone, and a CD case – was excluded from his trial.

[4] Bennett testified at trial and denied knowledge of the firearm and ammunition. He maintained a recording studio in his apartment and other rap artists visited on a regular basis. There was evidence that Bennett's ex-girlfriend and sister had keys to the apartment, and that his sister sometimes used the apartment with her ex-boyfriend. There was also evidence that the white fur coat in which the firearm was found had been worn by the appellant as a prop and for promotional appearances.

[5] Bennett was found guilty by a jury of possession of a loaded, restricted firearm and sentenced to 30 months' imprisonment. He appeals from conviction, contending that the trial judge erred by (i) denying the bulk of his request for disclosure of information related to the issuance of the warrant; (ii) denying leave to cross-examine the affiant on the ITO; and (iii) refusing to exclude the firearm pursuant to s. 24(2) despite the breach of s. 8 of the Charter.

[6] I would dismiss the appeal for the reasons that follow.

THE SECTION 8 APPLICATION

(1) Background: the ITO

[7] The search warrant was obtained on the basis of an ITO sworn by Constable Ian Hazell of the Peel Regional Police Major Drugs and Vice Bureau. The ITO alleged that the appellant was dealing crack cocaine from his residence at 265 North Service Road #504 in Mississauga. The affiant's belief was based on information provided by a confidential informant ("CI"). Constable Hazell was the CI's handler as well as the affiant.

[8] Paragraph 8 of the ITO set out the CI's past performance. It described the CI as a "proven and reliable informant" who had "never provided false or faulty information", and stated that the CI had provided information to the affiant on "several occasions resulting in numerous search warrants being executed and the seizure of [redacted] quantities of crack cocaine". The ITO stated that the CI knew that he or she would receive no consideration if the information provided was not proven to be true.

[9] The appellant received a redacted version of the ITO prior to trial. Extensive redactions were made in order to protect the identity of the CI.

(2) The Garofoli "step six" application

[10] The Crown conceded that the redacted version of the ITO did not disclose sufficient information to make out the reasonable and probable grounds required to justify the issuance of the warrant and invoked the "step six" procedure from R. v. Garofoli, [1990] 2 S.C.R. 1421. The step six procedure allows the trial judge to support the issuance of the warrant based on the unredacted ITO, despite the accused's inability to access it, so long as a summary of the redacted portions of the ITO is provided and the accused is sufficiently aware of the nature of the redacted material to challenge it in argument or by evidence: R. v. Crevier, 2015 ONCA 619, 339 O.A.C. 120, at paras. 2, 23-25.

[11] The judicial summary worked out by the Crown and the trial judge provided extensive information, including that the CI had purchased crack cocaine from the accused, had been to his building, and had called his cell phone. The CI knew the details of the car the appellant drove as well as his license plate, which police investigation confirmed. The affiant's investigation also confirmed, among other things, the appellant's previous record for drug offences; that he lived at 265 North Service Road #504 in Mississauga; and that he had been identified by both the CI and the property manager of the appellant's apartment by a mug shot.

[12] The appellant was provided with a copy of the redacted ITO and judicial summary. No objection was taken to the sufficiency of the summary. The trial judge ruled that the summary was sufficient for the purpose of informing the defence of the nature of the redacted material and to allow a challenge to the ITO in argument or by evidence.

(3) The disclosure application

[13] Beyond the information provided, the appellant sought disclosure of the CI handler's notes concerning his meetings with the CI as well as the CI file – that is, the police file detailing the performance of the CI in prior cases. He argued that disclosure of this information was required in order to assess the truthfulness of the affiant's assertions about the CI's past performance and to ensure that the CI was not a phantom. Defence counsel conceded that the vast majority of the file would likely be redacted to protect informer privilege, but insisted that it would at least be valuable for the court to look at the file and verify its existence.

i. The initial disclosure order

[14] The Crown argued that the defence was trying to make a sub-facial attack on the ITO without any basis for doing so, characterizing the disclosure request as a "fishing expedition". Defence counsel was seeking an order that the Crown could not fulfill, given the imperative of protecting CI anonymity, in the hope that the Crown would choose not to proceed rather than risk disclosure. The Crown argued that disclosure of the CI notes and CI files ran counter to the purpose of Garofoli.

[15] Defence counsel offered to abandon the disclosure application if the Crown undertook that the court could not consider any portions of the affidavit dealing with the CI's past performance and reliability. In particular, he stated:

If [the Crown] undertook or said that the court cannot consider any portions of the affidavit, the, the – that talk about the track record, I would abandon my application, because then it wouldn't be relevant.

[16] Defence counsel acknowledged that he did not have anything particular to suggest that the CI handler was incredible or unreliable, but said that quality control was needed to ensure that this was not a case of a "bad apple". He repeated that he was prepared to make arguments on the validity of the warrant immediately without disclosure if the Crown was willing to abandon reliance on the CI's past performance:

[I]f [the Crown] was prepared to say that she does not want to rely in any way shape or form on the [CI's] past performance, I'm prepared to make arguments on the warrant immediately. But if my friend wants to rely on the past performance, then in my submission there has to be some disclosure….

[17] The trial judge ordered the requested disclosure. This was a "bottom line" ruling, without reasons given at the time. The trial judge stated simply that the defence was entitled to disclosure of the CI handler's notes and CI file, redacted as necessary to protect informer privilege, "in accordance with Stinchcombe principles".

ii. The modified disclosure order

[18] The trial judge's disclosure order prompted the Crown to reconsider its position. The following day, Crown counsel advised the trial judge that the Crown would not be relying on the portion of the ITO that concerned the reliability of the CI, and invited the court to excise the relevant passage. She stated:

[A]fter careful review and consultation with Senior Crowns, at this time, it's the Crown's position that I will do what my friend suggested yesterday. Basically, the Crown is not going to be relying on the reliability portion of the unedited ITO. So, essentially, then excising paragraph eight and the Crown would be making submissions that the tip is compelling and corroborated enough that the warrant would still stand. And I understand that based on my friend's submissions yesterday that certainly if the Crown was abandoning that portion then there would no longer be a basis in relevance for the disclosure that has been ordered.

[19] Despite the Crown's concession, defence counsel maintained that the contents of the ITO were fabricated or exaggerated – that the CI was a phantom and/or the past performance of the CI did not exist – and that this was relevant to the application of s. 24(2) of the Charter. Defence counsel submitted that the Crown's concession was relevant to the request for disclosure of the complete CI file but not to the request for the file concerning this specific investigation:

[E]ven if it's an anonymous tipster in my submission, I should still receive the notes from this particular investigation because you would get that even if it was a Crime Stoppers tip, you would get that edited even for an unknown person for the specific tip. So, in my submission, my friend's concession goes to the full informant file, but not the one in relation to this specific investigation because that would be disclosed even with my friend's concession. So as long as it's crystal clear that's my position with respect to a Charter breach. As I said, it would lose its relevancy but for the bad faith aspect.

[20] The trial judge invited him to narrow his disclosure request.

[Y]esterday, I think, you indicated, you know, a lot of what you were requesting would not be an issue but for the Crown wanting to rely – – but for the Crown arguments on reliability. So, presumably, your request has narrowed so what specifically are you now asking for?

[21] Defence counsel returned to the argument that he had made earlier: the CI did not exist and disclosure was required to allow him to support his argument.

[22] The trial judge found that the Crown's concession rendered much of the requested disclosure irrelevant. However, he concluded that defence counsel was entitled to production of three pages of the CI handler's notes, fully redacted except for a date in April 2011 – the timeframe in which the Crown said the CI provided the information – and reference to the appellant's address, in order to address the defence concern that the CI was a phantom.

(4) The application to cross-examine the affiant

[23] Defence counsel also sought leave to cross-examine the affiant concerning several matters, including:

• his use of the telewarrant procedure rather than attending at the courthouse to obtain the warrant;
• his omission of information concerning whether the CI had a criminal record;
• his omissions concerning the appellant's criminal record;
• his omission concerning the association of the appellant's car with another address; and
• his failure to conduct surveillance to corroborate the CI's tip.

[24] The trial judge dismissed the application to cross-examine the affiant, reasoning that none of the areas in which cross-examination was proposed had a reasonable likelihood of undermining the validity of the warrant.

(5) The trial judge's ruling on the ITO

[25] The trial judge considered whether, on the basis of the unredacted ITO, the warrant could have been granted. This involved an assessment of whether: (i) the information in the ITO was compelling, (ii) the CI was credible and reliable, and (iii) the information in the ITO was corroborated: R. v. DeBot, [1989] 2 S.C.R. 1140, at p. 1168.

[26] The trial judge found that, although the CI's tip was "quite compelling", as a result of the Crown's concession that paragraph 8 of the ITO should be excised the ITO contained no information that the CI was credible or reliable. The Crown therefore failed to satisfy the second criterion from DeBot. Moreover, the corroboration of the ITO was limited to commonplace details that almost anyone could be aware of, such as the appellant's residence, type of car, and license plate. The trial judge concluded that the ITO was "facially invalid" – insufficient, on its face, to support issuance of the warrant: Crevier, at para. 73. Consequently, the search was warrantless and the appellant's right against unreasonable search and seizure under s. 8 of the Charter was violated.

Exclusion of evidence under s. 24(2)

[27] The trial judge refused to exclude the evidence under s. 24(2) of the Charter, relying on this court's decision in R. v. Blake, 2010 ONCA 1, 257 O.A.C. 346. He found that although the breach of s. 8 was serious because it involved the search of the appellant's home, the police acted in good faith and the evidence obtained in breach of the right was reliable and crucial to the case.

DISCUSSION

(1) Did the trial judge err in denying the disclosure request?

[28] The appellant argues that the trial judge denied him meaningful disclosure by rescinding the original disclosure ruling requiring disclosure of both the CI handler's notes and CI file. The appellant asserts that the Crown's decision to excise the reliability portion of the ITO did not render the disclosure sought irrelevant; it remained relevant to the appellant's sub-facial attack on the warrant and to the bad faith inquiry under s. 24(2). The disclosure ultimately provided – three pages of the CI handler's notes, fully redacted except for a date in April 2011 and a reference to the appellant's address – was meaningless in the circumstances and undermined both the appellant's motion for leave to cross-examine the affiant and his application to exclude the evidence under s. 24(2).

[29] I would not give effect to this submission. As I will explain, although the trial judge erred in making his initial disclosure order, his error changed the nature of the challenge to the ITO in a manner that ultimately enured to the benefit of the appellant.

[30] The principles governing disclosure are well established and there is no need to review them here: see R. v. Stinchcombe, [1991] 3 S.C.R. 326, at pp. 332-336, 338-346, R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at paras. 17-25.

[31] The Stinchcombe disclosure duty is broad, but it is not absolute. The Crown is not required to disclose information that is "clearly irrelevant, such that it is not of any use to the defence": R. v. Davey, 2012 SCC 75, [2012] 3 S.C.R. 828, at para. 45. Nor is the Crown required to disclose information that is protected by informer privilege; indeed, it is prohibited from doing so: see Stinchcombe, at pp. 336, 339.

[32] The starting point in determining relevance for purposes of a Garofoli review is that Garofoli is a pre-trial threshold evidentiary hearing, not a trial on the merits: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 94. It is concerned with the conduct of the police investigation rather than the guilt or innocence of the accused, and the right to full answer and defence that informs the Stinchcombe disclosure duty is limited accordingly.

[33] The ultimate question for a reviewing judge on a Garofoli application is whether, based on the ITO and any other evidence adduced on the review, the authorizing justice could have issued the warrant: Reid at para. 73, citing Garofoli, at p. 1452; and R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51. What matters on a subfacial challenge is what the affiant knew, or ought to have known, in applying for the warrant – the affiant's reasonable belief when the affidavit was sworn: Crevier at paras 55, 64; World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at paras. 119-121. Relevance is determined for this limited purpose.

[34] Applying these principles, in my view the CI handler's notes were relevant to the adequacy of the grounds for the affiant's belief that the CI was reliable. That is, they could reasonably be expected to assist the appellant in making his case against issuance of the warrant on the basis that the CI was not reliable. The affiant and the CI handler were one and the same, and it would be artificial to conclude that the information in the notes he made as handler did not inform the ITO that he drafted as affiant. The trial judge did not err in requiring the CI handler's notes to be disclosed, subject to the requirement to protect informer privilege.

[35] The situation concerning the CI file is different.

[36] The affiant's belief in the CI's credibility came from his personal experience with the CI on prior cases. He stated as follows in paragraph 8 of the ITO:

Confidential Informant #1 has never provided false or faulty information. Confidential Informant #1 has provided information to me in the past on several occasions resulting in numerous search warrants being executed and the seizures of [redacted] quantities of crack cocaine….

[37] This made the CI's track record and prior relationship with the affiant relevant to the reliability of the CI in this case. Thus, the CI handler's notes and documents relating to communication between the affiant and the CI about other cases they had worked on should also have been disclosed, again, subject to the requirement to protect informer privilege.

[38] But that was the extent of the disclosure from the CI file that was required. The burden was on the accused to establish that the CI file was relevant to something at issue in order to obtain additional disclosure from the CI file – third party information held by the police. As the Supreme Court explained in World Bank, at para. 124, requests for the production of third party documents are to be treated in the same manner as requests for cross-examination:

[W]here an accused asserts that third party documents are relevant to a Garofoli application, he or she must show a reasonable likelihood that the records sought will be of probative value to the issues on the application. The fact that the documents may show errors or omissions in the affidavit will not be sufficient to undermine the authorization. They must also support an inference that the affiant knew or ought to have known of the errors or omissions. If the documents sought for production are incapable of supporting such an inference, they will be irrelevant on a Garofoli application (Pires, at para. 41).

This approach reflects the nature and limited purpose of a Garofoli hearing. It also reflects the court's concern with ensuring that "sweeping disclosure requests" do not result in inordinate pre-trial delay: World Bank, at para. 130.

[39] Defence counsel's argument that the entire CI file should be disclosed was speculative – it was simply a bald challenge to the existence of the CI and his or her track record. It was, in short, the very sort of "fishing expedition" that must be discouraged. The CI handler's notes and documents relating to communication between the affiant and the CI about other cases they had worked on should have been disclosed, subject to informer privilege, but there was no basis for ordering disclosure of the entire CI file.

[40] In summary, the trial judge properly ordered disclosure of the CI handler's notes, but erred in ordering production of the entire CI file. What follows from this?

[41] The Crown's decision to concede that paragraph 8 should be excised from the ITO appears to have been based on the entirety of the trial judge's initial disclosure order, rather than simply the requirement that the CI file be disclosed. That being so, it is appropriate to treat the Crown's concession as unaffected by the trial judge's error in requiring disclosure of the entire CI file. The Crown did not want any of the material subject to the trial judge's order to be disclosed and would have conceded that paragraph 8 should be excised from the ITO in any event.

[42] Once paragraph 8 was excised from the ITO, the appellant's concerns about the reliability of the CI were rendered moot. Disclosure was no longer relevant to anything at issue. Not only was the appellant's disclosure request moot, but the excision of paragraph 8 from the ITO led the trial judge to conclude that s. 8 was violated. This was all that the appellant could have hoped to achieve in challenging the issuance of the warrant.

[43] For these reasons, I would not give effect to this ground of appeal.

(2) Did the trial judge err in refusing leave to cross-examine the affiant?

[44] The appellant submits that cross-examination should have been permitted in the following areas:

(i) the affiant's use of the telewarrant procedure;

(ii) the affiant's omission of whether the CI had a criminal record;

(iii) the affiant's omissions concerning the appellant's criminal record;

(iv) the affiant's omission of the different address on the appellant's vehicle registration; and

(v) the affiant's failure to conduct surveillance to corroborate the CI's tip.

[45] The appellant submits that there was a reasonable likelihood that cross-examination would have assisted in determining both the facial and sub-facial validity of the search warrant, as well as the admissibility of the evidence under s. 24(2).

[46] I would reject this ground of appeal.

[47] The narrow issue on a Garofoli application is whether there was a basis on which the authorizing judge could have issued the warrant. As the Supreme Court explained in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 41:

[C]ross-examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false.

[48] The Supreme Court emphasized the narrowness of the test for cross-examination in World Bank, at para. 132, in which the Court linked the test for cross-examination to third party disclosure applications.

[49] It is well established that cross-examination is a matter for the exercise of the trial judge's discretion, and the trial judge's decision is entitled to deference: R. v. Green, 2015 ONCA 579, 337 O.A.C. 72, at para. 52. There is no right to cross-examine the affiant on an ITO, as the appellant asserts. As the Supreme Court explained in R. v. Pires; R. v. Lising at paras. 33-36, there are two countervailing interests that must be considered: the concern over the prolixity of proceedings and the need to protect informants. The need to protect the identity of the CI is a central concern in deciding whether to permit cross-examination, given the real risk of disclosure that attends cross-examination.

[50] It was the appellant's burden to satisfy the trial judge that cross-examination would assist in determining whether there was any basis on which the warrant could have been issued: Green, at para. 34. He failed to do so, and there is no basis to interfere with the trial judge's decision on appeal.

[51] Even if the appellant had satisfied the narrow test for cross-examination, the trial judge's conclusion that s. 8 was violated renders the appellant's request for leave to cross-examine the affiant moot. All that the appellant could have hoped to achieve in cross-examining the affiant – the undermining of the ITO – was achieved.

[52] The appellant argues that he should have been granted leave to cross-examine the affiant not only to challenge the warrant, but also in order to establish police misconduct, which was relevant to his argument that the evidence should have been excluded under s. 24(2).

[53] However, as Doherty J.A. explained in Green, at para. 41, factors relevant to the s. 24(2) analysis cannot, on their own, justify cross-examining the affiant on a Garofoli application:

Expanding the ambit of cross-examination of the affiant to encompass issues relevant to s. 24(2) when there is no basis to permit cross-examination on the validity of the warrant itself, is in reality an attempt to justify cross-examination for one purpose – to establish grounds to exclude under s. 24(2) – in the hope that the cross-examination will uncover a basis upon which to attack the validity of the warrant, demonstrate a breach of s. 8, and thereby make s. 24(2) relevant. This approach seems to put the proverbial cart before the horse.

[54] The trial judge considered the appellant's concerns about the ITO to be "relatively trivial or peripheral" and found that the police acted in good faith. He found there was no evidence of police impropriety – no basis on which to impugn the conduct of the affiant in seeking the warrant, and as a result no basis to permit cross-examination. In these circumstances, there is nothing more than speculation that cross-examination would have mattered on a s. 24(2) argument. The trial judge did not err in refusing the appellant leave to cross-examine the affiant.

(3) Did the trial judge err by failing to exclude the firearm under s. 24(2) of the Charter?

[55] The appellant submits that the trial judge erred in admitting the evidence under s. 24(2) in three different ways. First, the trial judge misapprehended the appellant's position, wrongly finding that he did not seek disclosure for purposes of establishing that the police acted in bad faith by fabricating and/or exaggerating the contents of the affidavit. Second, the trial judge erred in finding that the search was not intrusive and extensive. Third, the trial judge erred in considering the search incident to arrest separately from the search of the appellant's residence, where he had a much higher expectation of privacy.

[56] This submission must be rejected.

[57] The exclusion of evidence is governed by s. 24(2) of the Charter, which directs that evidence obtained in a manner that infringes a right guaranteed by the Charter, "shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute."

[58] The law governing the exclusion of evidence was set out by the Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71. The court is required to consider:

(1) the seriousness of the Charter-infringing state conduct;

(2) the impact of the breach on the Charter-protected interests of the accused; and

(3) society's interest in the adjudication of the case on its merits.

[59] The Grant test was recently elaborated on by this court in R. v. Ansari, 2015 ONCA 575, 337 O.A.C. 207, at paras. 66-72 and R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 60-64. The key point for present purposes is that the decision of the trial judge is entitled to deference on appeal. There is no basis for this court to intervene unless the trial judge made an error in principle, a palpable and overriding factual error, or an unreasonable determination.

[60] The trial judge reviewed the requirements in Grant, as applied by this court's decision in Blake. In brief reasons, he found on the first branch of the test that there was no evidence of police impropriety and that the police acted in good faith in applying for the warrant. On the second branch, the trial judge found that the breach of the appellant's rights was very serious, given that his home was searched. On the third branch, the trial judge found, as in Blake, that the exclusion of reliable evidence in these circumstances would have a negative impact on the administration of justice.

[61] The trial judge does appear to have misstated the appellant's position on the first branch of the test. He appears to have assumed that the defence did not attempt to establish police misconduct because it would have caused the Crown to change its position and argue its defence of reliability in the ITO, rather than abandoning it. But this error is of no consequence. The trial judge found no evidence of police impropriety, and found, specifically, that the police acted in good faith in obtaining the warrant. Accordingly, the first branch of the test pointed towards admission of the evidence.

[62] On the second branch of the Grant test, there was no evidence as to the nature of the search conducted by the police – no evidence that it was in any way abusive. In any event, there can be no complaint that the trial judge did not take the s. 8 breach seriously. The trial judge properly characterized the breach of the s. 8 right as "very serious", because it involved a search of the appellant's residence. This branch of the test pointed towards exclusion.

[63] On the third branch of Grant test, the trial judge considered that society's interests in an adjudication on the merits was undercut when relevant and important evidence is excluded, although he recognized that the seriousness of the charge cuts both ways. The third branch of the test pointed towards admission of the evidence.

[64] The trial judge's discretionary decision not to exclude the evidence is entitled to deference. I see no basis for this court to interfere with it. The police were found to have acted in good faith in obtaining the warrant. There was no evidence of impropriety. The evidence – a handgun in a coat worn by the appellant, found in the closet of his apartment – was both reliable and crucial, and I agree that its exclusion would have brought the administration of justice into disrepute.

CONCLUSION

[65] I would dismiss the appeal.

Released: October 13, 2017 ("D.D.")

"Grant Huscroft J.A."

"I agree. Doherty J.A."

"I agree. B.W. Miller J.A."