Court of Appeal for Ontario

Date: 2021-02-26 Docket: C61879

Before: Strathy C.J.O., Watt and Zarnett JJ.A.

Between: Her Majesty the Queen, Respondent and Jeffrey Ronald Brown, Appellant

Counsel: Paul J. I. Alexander, for the appellant Jeffrey E. Pearson, for the respondent

Heard: November 9, 2020

On appeal from the convictions entered by Justice Paul M. Taylor of the Ontario Court of Justice, on July 30, 2013, and from the sentence imposed on September 26, 2013.

Strathy C.J.O.:

A. Overview

[1] This appeal concerns the application of “Step Six” in R. v. Garofoli, [1990] 2 S.C.R. 1421.

[2] The appellant was arrested and charged with various firearms offences. At trial, the Crown’s case turned primarily on the handgun evidence that had been found by police during their execution of a search warrant on the appellant’s car. The warrants, one for the appellant’s car and one for a dwelling at 121 Dollery Court, were issued on the basis of an “Information to Obtain” (“ITO”) that relied heavily on the tips of a confidential informant (“CI”).

[3] The appellant brought an application to challenge the validity of the warrants. He asserted that if the warrants were quashed, the resulting warrantless search of his car violated his rights under s. 8 of the Canadian Charter of Rights and Freedoms, and that the handgun evidence should be excluded under s. 24(2) of the Charter.

[4] At the request of the Crown, the trial judge applied “Step Six” of Garofoli and produced a judicial summary of the portions of the ITO that had been redacted in order to protect the CI’s identity. The trial judge determined that the redacted ITO and the judicial summary disclosed “reasonable grounds” for the warrants to be issued. The trial judge rejected the appellant’s application, upheld the warrants, and admitted the handgun evidence.

[5] After the ensuing trial, the trial judge convicted the appellant of all charges and imposed a global sentence of six years, less the credit for pre-sentence custody. The appellant has since served that sentence.

[6] The appellant appeals his convictions on the ground that the trial judge erred in upholding the warrants. The appellant submits that: (a) the ITO did not meet the criteria set out in R. v. Debot, [1989] 2 S.C.R. 1140; (b) the judicial summary was inadequate; and (c) the trial judge erred in relying on redacted information that he could not challenge. The appellant argues that if the warrants were erroneously authorized, the subsequent search of his car constituted a serious breach of his Charter rights, and that the admission of the handgun evidence would bring the administration of justice into disrepute. Because the handgun evidence was essential to the Crown’s case, the appellant requests that his convictions be set aside, and acquittals entered.

[7] For the reasons that follow, I would dismiss the appeal.

B. Background

[8] On June 13, 2011, Toronto police obtained two warrants under s. 487 of the Criminal Code, R.S.C. 1985, c. C-46, to search a 1997 Acura motor vehicle that allegedly belonged to the appellant, and a residence at 121 Dollery Court.

[9] The following day, at about 8:41 p.m., a police officer, conducting surveillance of the appellant, observed him walking to his car, which was parked at another location in Toronto. The officer noted that the appellant was “holding onto something underneath his shirt at waistband level … an object that appeared to have some weight.”

[10] The officer observed the appellant enter his car on the driver’s side, still holding onto the object. Once seated, the appellant reached over to the passenger-side airbag compartment, “manipulat[ed] something up in that area,” and closed the lid of the compartment by banging down on it with his fist. The officer then observed the appellant start his car and drive off.

[11] Several police surveillance vehicles followed the appellant’s car, ultimately making the decision to stop it on Black Creek Drive in Toronto. They arrested the appellant, and searched his car pursuant to the warrant issued on the previous day. They found a loaded semi-automatic handgun in the passenger-side airbag compartment. They charged the appellant with various firearms offences.

C. The ITO and the Judicial Summary

[12] As the ITO relied on information provided by a CI, it had been heavily redacted before its disclosure to the trial judge and defence counsel. The redacted ITO contained the following information about the appellant and his alleged offences:

• In March 2011, the affiant of the ITO learned from the CI’s handler that a male by the name of Jeffrey Brown was “currently” in possession of a firearm and was dealing drugs. The CI described Mr. Brown as male, black, in his twenties, 5’7” in height, with a medium build. The CI disclosed that Mr. Brown owned a four-door green Acura and “hung out” in the Jane and Finch area.
• The affiant confirmed through investigation that the appellant owned a 1997 four-door green Acura.
• In April 2011, the affiant was informed that the appellant was receiving welfare cheques at 121 Dollery Court.
• In May 2011, police officers conducted surveillance at 121 Dollery Court on two occasions, and observed the appellant and his Acura vehicle at that location.
• In May 2011, the affiant learned from the CI’s handler that Mr. Brown was still in the possession of a firearm.
• The affiant conducted additional database searches, and he ascertained that the appellant was prohibited from the possession of firearms due to a conviction for first-degree murder; that the appellant had three convictions, including second-degree murder; and that both the appellant’s driver’s license and his Acura were registered to an address in Ajax.
• The affiant discovered from reports in “Field Information cards” that the appellant had been investigated on three occasions between 2010 and 2011 in and around the Jane and Finch area. Those reports matched the CI’s description of Mr. Brown and his car.

[13] The Crown subsequently produced a second redacted version of the ITO, which disclosed portions that had previously been redacted. In particular, the new ITO revealed that, on a redacted date in June, the CI had told his handler that, “Jeffrey Brown has a gun on him.”

[14] The redacted ITO contained the following information about the CI:

• The CI had worked with police in the past and had been assigned a confidential source number.
• The CI had previously provided information to police in relation to drug trafficking, homicides, and shootings. The CI’s information had led to the seizure of firearms.
• The CI provided information that he saw Mr. Brown in the possession of a firearm and drugs.
• The CI had no convictions, to date, for perjury-related offences.

[15] The affiant stated that he had no reason to believe the CI’s tips about the appellant were false or malicious in nature.

[16] The Crown asked the trial judge to apply Garofoli “Step Six” and provided the judge with a summary of the information that had been redacted from the ITO. After reviewing the summary and the unredacted ITO, the trial judge approved the summary. That summary, in its entirety, read as follows:

• The information provided by the confidential informant is current.
• The confidential informant is a carded and registered informant of the Toronto Police Service.
• The information provided by the confidential informant has lead [sic] to the seizure of several firearms.
• The information provided by the confidential informant is detailed and specific as it relates to Jeffrey Brown’s firearm.
• The means of the confidential informant’s knowledge is disclosed.
• The confidential informant advised that Jeffrey Brown confirmed that wherever Jeffrey Brown is, the firearm is.
• The confidential informant has been in Jeffrey Brown’s presence many times.

[17] The defence was provided with this summary. The defence applied for and was granted leave to cross-examine the affiant of the ITO.

D. The Trial Judge’s Ruling

[18] After hearing the submissions of counsel, the trial judge reserved judgment. He subsequently dismissed the appellant’s application to quash the warrants and exclude the handgun evidence.

[19] The trial judge began his analysis by summarizing the jurisprudence on judicial review of an authorizing judge’s decision to grant a warrant. He correctly stated that the question before him was whether the search warrants, as amplified on review, could have been issued: R. v. Grant, [1993] 3 S.C.R. 223, at p. 251, citing Garofoli, at p. 1452.

[20] The trial judge appreciated that in a case involving a confidential informant, the sufficiency of the ITO must be assessed according to the three Debot factors: whether the tip is compelling, whether the CI is credible, and whether the tip has been confirmed by independent police investigation: R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at para. 16, citing Debot, at p. 1168.

[21] The trial judge determined that the redacted ITO contained “some information” on the credibility of the CI, but omitted details such as the CI’s criminal record. He noted that the ITO was sloppily drafted and used “remarkably similar” language to the phraseology this court criticized in Rocha. However, he found that there was “confirmatory evidence” of the CI’s tips in the form of police observations and street checks. Furthermore,

The Judicial Summary indicates that the Informant’s information is detailed and specific, the means of his knowledge is disclosed, the informant has been in the Applicant’s presence many times, and the Informant confirms that the Applicant is always in possession of the firearm.

[22] The trial judge held that, based on the redacted ITO and the judicial summary, the Debot factors for the issuance of the warrants had been satisfied. In the alternative, he mentioned that if he had erred in his analysis, his review of the unredacted ITO and the search warrants met the Debot standard.

E. Parties’ Submissions

(1) The Appellant’s Submissions

[23] The appellant submits that the trial judge erred in finding that the ITO satisfied the Debot criteria, in applying the Garofoli Step Six procedure, and in admitting the handgun evidence.

[24] With respect to the Debot criteria, the appellant contends that the CI’s tips were neither credible nor corroborated. He argues that the ITO disclosed minimal information about the CI’s credibility in order to create a “veneer of honesty,” but failed to include essential details, such as the CI’s motive and full criminal record. The trial judge properly acknowledged these omissions, but failed to explain why he concluded that the CI was credible. The appellant also submits that the trial judge failed to conduct a meaningful analysis of whether the ITO was corroborated. Most of the “corroborative” information obtained by police investigation concerned commonplace details about the appellant, and the only other source relied upon by the affiant was a dated and unrelated youth criminal record. While the appellant also disputes the trial judge’s finding that the CI’s tips were compelling, he asserts that in the absence of credibility and corroboration, the ITO cannot stand.

[25] The appellant further submits that the trial judge erred in his application of Garofoli Step Six because the judicial summary did not provide a reasonable basis on which to challenge the ITO. Moreover, the trial judge based his decision to uphold the warrants on redacted information that had not been summarized.

[26] The appellant contests the Crown’s argument that if the ITO is quashed, the police had reasonable and probable grounds to carry out a warrantless arrest and a search incident to that arrest. The appellant maintains that the Crown did not adduce any evidence at trial as to whether the arresting officer had subjective grounds to justify a warrantless arrest, and that this court should not make that inference from the officer’s evidence.

[27] The appellant consequently submits that the trial judge should have excluded the handgun evidence under s. 24(2) of the Charter. The affiant’s “sloppy” drafting of the ITO, with its omissions, exaggerations, and misleading statements, discussed below, pushed the Charter breach to the serious end of the spectrum. In addition, the impact on the appellant’s Charter rights was significant. The appellant claims that the public interest in prosecuting the case cannot “tip the balance” towards admission of the handgun evidence when the other two branches of the s. 24(2) test favour its exclusion.

(2) The Crown’s Submissions

[28] The Crown submits that the trial judge’s decision is entitled to deference. While some of the appellant’s criticisms of the ITO may be fair, the Crown asserts that they do not undermine the basis for the issuance of the search warrants. The trial judge was aware of the need to balance the interest in protecting the CI’s identity with the appellant’s fair trial rights. The trial judge analyzed the Debot factors in that context, and found that the CI’s tips were credible, corroborated and compelling.

[29] The Crown submits that the trial judge correctly applied Garofoli Step Six. He could not have allowed more information to be disclosed, either in the judicial summary or in the cross-examination of the affiant by defence counsel, without exposing the CI’s identity. When the judicial summary is read together with the redacted ITO, it demonstrates that the warrants could have been issued.

[30] The Crown submits that if the ITO is struck down, there were exigent circumstances to justify the arrest of the appellant and the search of the Acura incident to arrest. As a result, the handgun evidence was properly admitted at trial.

F. Analysis

(1) Applicable Principles

(a) The Requirements for Issuing a Warrant

[31] A justice issuing a search warrant must have reasonable grounds to believe that an offence has been committed. The material in support of the warrant must raise a reasonable probability of discovering evidence of the crime at the place of the proposed search: R. v. MacDonald, 2012 ONCA 244, at para. 6; R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 20, citing Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 167-68.

[32] Debot confirms that where the ITO is based primarily on the information obtained from a CI, the authorizing justice must make three inquiries: whether the information about the crime was compelling; whether the source of the information was credible; and whether the information was corroborated by the police before applying for a search warrant. These are not watertight inquiries. Weaknesses in one of the factors may be compensated by the strength of others. The “totality of the circumstances” must be considered in order to meet the standard of reasonable probability: Debot, at p. 1168; MacDonald, at paras. 6-7.

(b) The Test for the Sufficiency of a Warrant

[33] A warrant is presumptively valid: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 83; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30. A party challenging the issuance of a warrant bears the onus of demonstrating that it was not validly issued.

[34] The trial judge correctly identified the test for the sufficiency of a warrant. A reviewing court is not entitled to conduct a rehearing of the application for the issuance of a warrant, or to substitute its opinion for that of the authorizing justice. As stated by Sopinka J. in Garofoli, at p. 1452, “[i]f, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere” (emphasis added). See also R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51; R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 73, leave to appeal refused, [2016] S.C.C.A. No. 432.

(c) Garofoli Step Six

[35] In R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, Rouleau J.A. provided a detailed description of the Garofoli “Step Six” procedure. Step Six arises in the context of an accused’s challenge to a search warrant that is issued on the basis of a CI’s tips. In order to protect the CI’s identity, the ITO containing the CI’s tips is redacted before its disclosure to the accused. The ITO may consequently become incapable of supporting the warrant’s authorization. Step Six allows the Crown to rely on the unredacted ITO to defend the warrant’s validity. In so doing, Step Six attempts to address the underlying tensions between the court’s duty to protect the confidential communications of CIs and police officers, and the constitutional right of the accused to make full answer and defence.

[36] When Step Six is invoked, the trial judge provides defence counsel with a summary of the redacted portions of the ITO: Garofoli, at p. 1461. The summary is usually drafted by the Crown and is then vetted by the judge before it is provided to the defence.

[37] A summary is just that: “By its very nature, a summary is general, not detailed. Its predominant characteristics are conciseness and brevity”: Reid (2016), at para. 88. However, the summary must provide the accused with sufficient information to mount both a facial and sub-facial challenge to the ITO, and to question whether the affiant made full and frank disclosure regarding the reliability of the CI and of their tips: Crevier, at para. 83. This would also include information related to the three Debot factors, namely whether the CI is credible, and whether the information is compelling and corroborated: Crevier, at para. 84.

[38] In determining whether or not to uphold a warrant, the trial judge can consider the unredacted ITO, but only if satisfied that the accused is sufficiently aware of the nature of the redacted material such that they can mount a challenge in argument or by evidence. Put another way, “the judicial summary of the redacted material provided to the accused, combined with the redacted ITO, must be enough to ensure that the accused is in a position to exercise his or her right to make full answer and defence. Only then can step six be employed”: Crevier, at para. 43.

[39] Once in receipt of the judicial summary, the defence, using evidence from Crown disclosure, evidence from the preliminary hearing, and/or evidence from other sources, such as cross-examination of the ITO’s affiant, may attempt to persuade the trial judge that the unredacted ITO cannot justify the issuance of the warrant.

(d) The Standard of Review on Garofoli Applications

[40] A trial judge’s decision on a Garofoli application is entitled to deference. An appellate court should not interfere with that decision in the absence of an error of law, a misapprehension of the evidence, or a failure to consider relevant evidence: R. v. Reid, 2017 ONCA 430, at para. 8.

(2) Application of the Principles

[41] It is important to contextualize this case in the evolution of the Garofoli Step Six jurisprudence. This court’s judgment in Rocha was released more than a year after the ITO was sworn on June 13, 2011. Thus, while the trial judge had the benefit of Rocha when he heard the application in late 2012 and early 2013, and when he issued his reasons on July 30, 2013, the affiant of the ITO did not have the benefit of Rocha’s guidance when he swore the ITO. Moreover, the development of the Garofoli jurisprudence was at a relatively early stage at the time the application was heard. As defence counsel put it, they were in “a new frontier of the law”.

[42] I now turn to the requirements of Debot, set out earlier.

(i) Was the CI Credible?

[43] While the “three Cs” of Debot are to be considered together, I agree with the appellant that if the CI’s credibility is weak, it can impact the assessment of the other two factors. Evidence that appears to be compelling may be rendered less so if the credibility of the CI is weak. Corroboration of evidence of low credibility obviously carries less weight than corroboration of evidence of high credibility.

[44] Typically, the authorizing justice will be concerned to know the CI’s criminal record, their track record in providing useful information to police, and whether they had a particular motive for providing the information to police.

[45] Here, the appellant notes that the affiant did not disclose the full criminal record of the CI, or whether there were any outstanding charges, to the authorizing justice. The affiant simply stated that the CI had “no convictions, to date, for perjury related offences.” The affiant testified that at the time of drafting the ITO, it was not his practice to inquire about the CI’s criminal record, and that he obtained the information stated above from the CI’s handler. He candidly acknowledged, on cross-examination, that the language he had used to describe the CI’s criminal record was no longer part of the acceptable lexicon.

[46] The appellant argues that in light of Rocha, the affiant’s “odd language and omissions” with respect to the CI’s criminal record made the CI’s credibility weak. The appellant emphasizes that the Crown counsel at trial had conceded the ITO’s insufficient details, and that the trial judge had criticized the same in his decision. The appellant asserts that the trial judge failed to explain how he came to his conclusion about the CI’s credibility, and draws our attention to the affiant’s other omissions.

[47] In particular, the appellant submits that the affiant failed to disclose any motive the CI might have had for assisting police, such as financial or other consideration, public spiritedness, or some form of animus. There was also no meaningful information as to the CI’s reliability, whether the CI had previously provided false or unreliable information, or whether the CI’s tips had led to convictions in the past.

[48] The Crown acknowledges that there is some merit to the appellant’s submissions about the “embarrassing” shortcomings in the ITO. The language is “sloppy,” referring, for example, to the appellant having a previous conviction for first-degree murder when, in fact, he had been charged with first-degree murder, but convicted of second-degree murder. In addition, the Crown noted that the affiant’s failure to disclose the CI’s criminal record was inexcusable. However, unlike the trial Crown, the appeal Crown did not concede that the CI’s credibility was weak. He submitted that the trial judge was alive to all these shortcomings, and yet he made no finding that the affiant deliberately misled the authorizing justice.

[49] I am inclined to agree with the Crown’s position. The redacted ITO stated that:

The [CI] has provided information to police in the past and has been assigned a confidential source number. There is no indication that the information provided would be false or malicious in nature as the confidential source has been proven in the past to be reliable. [Emphasis added.]

[50] Moreover, the judicial summary disclosed that “the [CI] is a carded or registered informant of the Toronto Police Service”, and that “the information provided by the [CI] has lead [sic] to the seizure of several firearms.” The fact that the CI was formally registered on police records spoke to their reliability, as did the fact that the CI had previously provided information leading to the seizure of firearms – the very crime at issue here. While it would have been preferable for the affiant to have included information about the CI’s motive, it can be inferred that the CI had some motive for providing the information, although no motive for providing false or misleading information, and a history of providing reliable information.

[51] In summary, while the trial judge did not thoroughly explain why he found the CI to be credible, and while there were some shortcomings in the affiant’s disclosure of the CI’s criminal record, track record, and motive, these were balanced by the CI’s history as a “registered” police informant with a record of providing reliable information that had led to the seizure of firearms. Deference is owed to the trial judge’s conclusion on this factor.

(ii) Was the CI’s Information Corroborated?

[52] The appellant submits that the police only corroborated the CI’s information in relation to “neutral” details that would have been known to anyone. Specifically, the police “corroborated”:

• the colour and make of the appellant’s vehicle – a four-door green Acura;
• the description of the appellant’s appearance – a black male in his twenties, 5’ 7” tall, medium build; and
• the fact that the appellant was a drug dealer and “hung out” in the Jane and Finch area of Toronto.

[53] I agree with the respondent that the corroborative effect of some of this information is minimal when viewed in isolation. However, the information cannot be viewed in isolation. When taken together, as it must be, the information of the CI was corroborated by the police’s independent inquiries. A police database check confirmed the appellant’s birth date, and the fact that he owned a four-door green Acura. The ITO also disclosed that the affiant had obtained police “Field Information cards,” indicating that the appellant had been observed on March 23, 2010, February 15, 2011, and April 2, 2011 in the Jane Street area. On one of those occasions, the appellant produced his driver’s licence as identification, and on two of those occasions, he was observed in the Acura registered under his name.

[54] In addition, on two occasions in May 2011, police observed the appellant at 121 Dollery Court, the location where his welfare payments were sent. On the first occasion, May 17, he was observed leaving the dwelling, entering the Acura which was parked in the driveway, and driving away. On the second occasion, May 30, he was observed leaving the dwelling, walking up to the driver’s side of the vehicle, removing something from the front of the vehicle, placing it under his sweater, and returning to the dwelling.

[55] As this court explained in MacDonald, at para. 20, police are “not obliged, before conducting the search, to confirm the very criminality alleged by the tipster.” There was, therefore, corroboration of the CI’s information on the appellant. The police confirmed the fact that the appellant drove a four-door green Acura, and that he “hung out” in the Jane and Finch area. Although the CI was not able to identify the appellant’s residence, police were able to corroborate the appellant’s ownership of the Acura and his connection to 121 Dollery Court, where they observed both the appellant and his Acura.

(iii) Was the CI’s Information Compelling?

[56] The appellant submits that he has limited ability to assess whether the CI’s information was compelling because the redactions were substantial, and the judicial summary was “thin.” He argues that, based on the information available to him, there was no compelling evidence to indicate that a firearm would be found in either the Acura or the residence at 121 Dollery Court at the time of the search. He relies on Herta, at para. 51, in which this court found that the CI’s statement that the accused “would not go anywhere without the gun” was not sufficiently compelling to justify a search at any location the accused had attended as “[t]his would have turned [the accused] into walking, ready-made grounds for belief.”

[57] To assess whether the information was compelling, it is necessary to examine both the redacted ITO and the judicial summary. The summary indicates that the CI had been in the appellant’s presence “many times”; that the CI’s information about the firearm was “detailed and specific”; that the means of the CI’s knowledge was disclosed; and that the CI’s information was current. The summary also mentioned that the CI had advised his handler that “wherever Jeffrey Brown is, the firearm is.”

[58] This information is compelling because it established that the CI was familiar with the appellant, that the CI’s observations were first-hand, and that the information was current. The CI was able to give a detailed and specific description of the firearm, which indicated that the CI had personally seen it. Furthermore, the appellant confirmed to the CI that he always had the firearm with him. Read together, the redacted ITO and the judicial summary established that the CI’s information was compelling.

[59] Despite the appellant’s submissions, I do not regard this as a case similar to Herta. In Herta, there was little information about the CI’s credibility, and the court found that corroboration was weak. The court rejected the proposition that if “a CI has seen someone with a gun at some point in the past, [it] means a search warrant can necessarily [be issued] for any place attended by that person in the future.” In this case, the CI’s similar statement was based not on speculation, but on what the appellant had said about his own possession of his weapon: effectively, “I carry it wherever I go.”

(iv) Conclusion on the Debot Factors

[60] In conclusion, the trial judge was alive to the shortcomings in the ITO, and appropriately recognized that some of them were attributable to the lack of judicial guidance at the time of its preparation. The trial judge applied the Debot factors and did not find that the shortcomings reflected a deliberate attempt by the police to mislead the authorizing justice. The trial judge concluded that the information in the ITO was credible, compelling, and corroborated. The trial judge’s reasons demonstrate no misunderstanding of the evidence and no error of law. The trial judge’s decision is entitled to deference. I would not give effect to this ground of appeal.

(3) Garofoli Step Six

[61] The appellant submits that the trial judge committed two additional errors in applying Garofoli Step Six. First, the trial judge failed to appreciate that the judicial summary was inadequate; and second, the trial judge relied on information that was contained in the unredacted ITO and was not summarized. I do not accept either submission.

[62] On the first point, I note that the appellant not only had the benefit of the judicial summary, but also of a cross-examination of the affiant, which was conducted with leave of the trial judge. More importantly, the judicial summary complied with the suggestions set out in Crevier. It described the nature of the redacted information. The appellant, armed with the ITO, the judicial summary, and the cross-examination, had sufficient information to mount a facial or subfacial challenge to the ITO, and to argue that the requirements of Debot had not been met. That his challenge failed was not due to his inability to effectively challenge the ITO.

[63] On the second point, Crevier, at para. 90, states that “[t]o the extent that the accused is not sufficiently equipped to challenge certain redactions, the trial judge must not consider them.” The trial judge followed Crevier and made it clear that his reference to the unredacted ITO was an alternative in case he erred in his analysis of the Debot factors. As I would uphold his analysis on the Debot factors, I consider it unnecessary to address this submission.

(4) Other Issues

[64] Although the trial judge suggested a “Step Seven” to Garofoli, which would permit an appellate court to review the unredacted ITO, I do not find it necessary to address that issue, and have not opened the sealed ITO packet.

[65] Nor do I find it necessary to address the respondent’s alternative submission that exigent circumstances permitted the police to conduct a warrantless search of the appellant’s car, pursuant to ss. 487.11 and 495(1)(a) and (b) of the Criminal Code.

G. Disposition

[66] For these reasons, I would dismiss the appeal.

Released: February 26, 2021 “G.R.S.” “George R. Strathy C.J.O.” “I agree. David Watt J.A.” “I agree. B. Zarnett J.A.”