Court Information

Between:

Her Majesty the Queen

— And —

J.J. Felix

Before: Justice Hall

Heard on: January 9, 10, 30, 31, February 8, February 15, February 26, 2013

Reasons for Judgment released: May 14, 2013

Counsel:

• S. Olver for the Crown
• R. Posner for the accused J.J. Felix

HALL J.:

INTRODUCTION

[1] This is a case in which a search warrant was executed at the accused's apartment, where a firearm and ammunition were found. The accused argued that the search was illegal because it was based on an invalid search warrant that ought not to have been issued, therefore rendering the search and seizure unreasonable. Counsel for the accused seeks to exclude the evidence on the grounds that the client's Charter right under section 8 was breached by the unauthorized search and seizure.

OVERVIEW

[2] On May 31, 2012, D.C. Morgan obtained a Criminal Code search warrant from a Justice of the Peace for the accused's home. The Gun and Gang Task Force attempted to execute this initial warrant, but their efforts were rebuffed as they were unable to locate the accused on that day. This warrant expired.

[3] A second warrant was obtained the next day by D.C. Taylor on the strength of the same information that D.C. Morgan had presented to the issuing justice. This search warrant was executed on the 1st of June 2012 on the accused's home around 7:13 p.m., whereupon the police discovered a firearm located in an office area and ammunition was found in various parts of the apartment including what is believed to be the accused's bedroom. The accused was seen exiting the apartment at the time of the execution of the search warrant, and was arrested and charged with the following offences:

(a) Possession of prohibited firearm with ammunition;

(b) Firearm careless storage;

(c) Unauthorized possession of firearm;

(d) Possession of a firearm obtained by the commission of an offence;

(e) Weapon dangerous;

(f) Careless storage ammunition.

[4] The information to obtain ("ITO") the search warrant revealed that the police investigation was initiated as a result of information received from a confidential informant. The informant claimed that the accused was in possession of a firearm that, when not on his person, would be kept in his home at 125 Bamburgh Circle, unit 702, in the City of Toronto.

[5] The defence filed a Charter motion seeking to have the evidence excluded on the following ground: that the information to obtain was insufficient to justify the issuance of the search warrant. Without proper authorization, the accused's section 8 right under the Charter was violated, and evidence obtained through this violation should be excluded under section 24(2).

THE ISSUE

[6] The issue to be decided is whether the ITO presented to the Justice of the Peace revealed sufficient grounds to have authorized the issuing of the search warrant.

[7] At the start of the trial the defence argued the search warrant is not valid because the edited ITO, as disclosed, did not provide any or sufficient premise on which a justice of the peace could have issued a search warrant. Thus it was argued that given the absence of a valid search warrant, the search of the accused's residence was a breach of his section 8 Charter rights.

[8] The Crown acknowledged that the ITO was "heavily vetted" and concedes that the redacted ITO does not, on its face, disclose reasonable and probable grounds to believe that a firearm and ammunition would be found in the accused's residence. The Crown however insisted that the ITO was heavily edited not to subvert the requirements of prior judicial authorization but rather to protect the identity and safety of the confidential informant ("CI").

[9] As a result of this concession, the Crown argued that the court should engage the "Step 6" procedure as set out by the Supreme Court in R. v. Garofoli, (1991), 60 C.C.C. (3d) 161. The defence did not oppose this approach.

[10] There is a recognized tension between the right to full answer and defence and the need to protect police confidential informants: R. v. Learning (2010), 2010 ONSC 3816, 258 C.C.C. (3d) 68. In the context of the admissibility of evidence obtained pursuant to a warrant, the Supreme Court struck a balance between these two interests in R. v. Garofoli, supra. Specifically, the Court set out a series of steps a defendant can take in order to challenge the validity of a judicially authorized search. The last step of the procedure is an option for Crown counsel to apply for a review of as much of the un-redacted ITO as is necessary to ascertain the authorization's validity:

6. If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it [the nature of the excised material] in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.

[11] The validity of the Step 6 procedure has been confirmed in obiter by the Court of Appeal in R. v. Blake, [2010] O.N.C.A. 1, and more recently in R. v. Rocha, [2012] O.N.C.A. 707. In Rocha, Juriansz J.A. encourages Crowns and trial courts to resort to Step 6 of Garofoli so that its contours and procedures can be properly explored by jurisprudence.

[12] Juriansz J.A. points out that policy rationale militates towards the use of Step 6. He argues that without Step 6, the warrant authorization process would seem "artificial" to the general public – as there would be unreasonably one test for the authorization of the search warrant, and another for its subsequent affirmation (Rocha at paras 49-50). This divide subsequently undermines the public's confidence in the justice system by unfairly suggesting that the police have acted improperly and violated the privacy of the accused, even though they may have had proper justification. Setting aside a properly obtained search warrant, moreover, would be to waste the resources that went into both its execution and investigative hours that furnished the initial authorization.

[13] Further, Code J. notes in Learning that the Garofoli procedure is situated in a context where the merits of the case are not what is being decided. Rather, the Garofoli procedure is a process designed to test the admissibility of the seized evidence via the validity of the warrant. As such, the accused's rights to full answer and defence at the admissibility stage is reduced comparatively than the subsequent trial on its merits. Step 6 is therefore a supportable mechanism, as at this stage the "attenuated rights" of the accused to have full and answer and defence must yield to the necessity of protecting police informants and confidential sources. In this context, it is unsurprising that trial courts have been increasingly willing to resort to the use of such a procedure: see R. v. Farrugia, [2012] O.N.C.J. 830, and R. v. Herdsman, [2012] O.N.C.J. 739.

[14] The cases above have made it clear that under the dictates of Step 6, a trial judge can review the un-redacted ITO to examine if sufficient grounds were before the authorizing justice. However Step 6, as its name implies, is a method of last resort. In a desire to provide the accused with as much disclosure as possible, Step 6 should only be resorted to once Steps 1 through 5 outlined in Garofoli have been exhausted. It is only when these preceding procedures fail to create a discloseable and supportable search warrant that the Crown should invite the trial judge towards the use of the Step 6 mechanism.

[15] As a matter of policy, Crown counsel should not automatically resort to Step 6 where a CI is used as the source of the information. To do so would unacceptably tip the balance solely towards the protection of police informants at the cost of the accused's rights to disclosure. If a scenario presents itself where even the creation of the edited affidavit or the judicial summary would compromise the identity of the CI, the solution would not be Step 6 but rather a withdrawal of the wiretap evidence or an attempt at inclusion through section 24(2).

[16] Put another way, a trial judge can only properly look behind the face of the edited authorization if they are satisfied that the accused is "sufficiently aware of the nature of the excised material to challenge it in argument or by evidence". In my view, such awareness is achievable through a good faith adherence to the procedure set out in steps 1 through 5 of Garofoli.

[17] The Crown in the instant case provided me with a proposed draft judicial summary of the redacted contents of the ITO. I endorsed this judicial summary, and a copy of it was delivered to the defence. Upon its receipt, counsel for the defence desired more information as part of the judicial summary, arguing specifically that information on past performance and reliability of the confidential informant should be made available. In response, some additional information was provided to the defence along those lines. However, further information, in my view, would have run the risk of exposing the identity of the informant.

[18] Marshalling this disclosed information, counsel for the defence was able to advance several arguments before me relating to the validity of the ITO. Specifically, he attacked the reliance and reference to a series of YouTube videos depicting the accused rapping about criminal conduct. This information is found in paragraph 3.05 of the ITO. Moreover, he pointed out that the informant provided no details regarding the two dogs that were present in the accused's apartment. Through these lines of questioning, counsel questioned the validity of the search warrant by suggesting that the informant's allegations was inadequately corroborated and insufficiently compelling to formulate reasonable grounds for authorization.

[19] During this hearing the Crown agreed to make available Detective Peterson for cross-examination. In addition, leave was granted by the court for the affiant, Detective Morgan, to be cross-examined. The defence argued that based on this evidence, the judicial summary, the redacted ITO and the other disclosure given to the defence, that paragraph 3.05 of the ITO was erroneous. It was argued that this erroneous information and lack of disclosure to the issuing Justice renders the warrant invalid because the police attempted to mislead the judicial officer.

[20] Based on the arguments presented and the information disclosed, the court is satisfied in this case that counsel for the accused was made sufficiently aware of the nature of the excised material to permit a resort to Step 6. But before the court can assess the validity of the un-redacted warrant, it must first address the merits of counsel's argument on paragraph 3.05 of the ITO.

THE IMPUGNED PARAGRAPH IN THE ITO

[21] Detective Constable Peterson's evidence can be summarized as follows. He testified that he provided certain information to D.C. Morgan who is the affiant on the search warrant regarding the accused and his involvement in, or his control of, the drug trade in the Tuxedo Court Community. This information was included in paragraph 3.05 of the Information to obtain. D.C. Peterson in cross-examination testified that the source of this information came from school children some three years back when he was working the streets in the Scarborough area, before he was assigned to the Gun and Gang Unit.

[22] While testifying he acknowledged that in June of 2012 he did not know whether the accused had any control or even involvement in the drug trade in Tuxedo Court Community. However, later in his evidence D.C. Peterson changed that view and then asserted that in June of 2012 he remained of the opinion that the accused controlled the drug trade in the Tuxedo Court community.

[23] There was no factual basis presented to the court for this opinion. As a result, the court finds that at its highest this information was at least three years old and was the product of gossip from school children.

[24] D.C. Morgan, the affiant on the search warrant, testified he tasked P.C. Peterson to confirm the accused's address. D.C. Morgan as well acknowledged receiving the information from P.C. Peterson regarding his belief that the accused controlled the drug trade or to use his words was a "big player" in the drug trade in the Tuxedo Court community.

[25] This information became part of what constituted paragraph 3.05 of the ITO. The second portion of paragraph 3.05 described a rap video that D.C. Morgan located on "YouTube" of the accused in the company of a number of other young people delivering a rap performance. It is the evidence of P.C. Morgan that, from his experience, individuals in Toronto that are rapping about guns are generally involved with guns.

[26] D.C. Morgan admitted he should have been more scrupulous with regard to this information from D.C. Peterson. However, he points out that this case was not a drug investigation, but rather was an investigation about illegal gun possession. More importantly, he asserted that the information did not form part of the grounds for the search warrant. D.C. Morgan, after being pressed by counsel for the defence, agreed this section of the ITO played some part in informing the grounds even if it's a small part.

[27] In the court's view paragraph 3.05 of the ITO, particularly the segment that claimed the accused was in control of the drug trade in the Tuxedo Court Community is three years old and outdated. Furthermore, the source of the information was from unknown school children. The court finds this information not to be reliable. The age and nature of this information was never disclosed to the issuing Justice and should have been, in the court's view.

[28] The YouTube video in which the accused was rapping about guns, when considered in combination with the assertion that the accused was heavily involved in the drug trade, might reasonably be seen as a form of corroboration. However, given the court's finding on the validity of the information regarding the accused's involvement in the drug trade, such a view would lose its potency. The YouTube video of the accused and company by itself, or combined with the outdated information, is of little consequence in this analysis, because its content does not demonstrate the presence of reasonable and probable grounds.

[29] It is important to note that non-disclosure to the issuing justice, in certain circumstances, may lead, by itself, to the invalidation of a search warrant. This was discussed by the Supreme Court of Canada in R. v. Araujo, [2000] S.C.C. 65. At paragraph 54, citing R. v. Morris, [1998] 1344 (N.S. C.A.) with authority, the Court says the following:

These cases stress that errors, even fraudulent errors do not automatically invalidate the warrant.

This does not mean that errors, particularly deliberate ones, are irrelevant in the review process. While not leading to automatic vitiation of the warrant, there remains the need to protect the prior authorization process. The cases just referred to do not foreclose a reviewing judge, in appropriate circumstances, from concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventive function it serves.

[30] The court is of the view that the case before it is not one which the extent of the error or lack of disclosure to the issuing Justice would justify invalidating the search warrant. Rather, the better course of action on the court's part is to excise paragraph 3.05 of the ITO for the reasons indicated above.

THE LAW ON REVIEWING SEARCH WARRANTS

[31] Now that the court has excised paragraph 3.05 from the ITO it must decide whether or not the remainder of the information found in the ITO provides the necessary reasonable and probable grounds to justify the issuance of the search warrant. Clear guidance on this point has been provided by the Ontario Court of Appeal in R. v. Ebanks (2009), 2009 ONCA 851, 249 C.C.C. (3d) 29 at para. 28 (emphasis added):

It is settled law that a reviewing Judge must exclude erroneous information from an affidavit supporting a wiretap authorization; see R v Arujo, (2000) 2000 SCC 65, 2 S.C.R. 992 at paragraphs 56-58. However, there is no authority for the reviewing Judge to exclude correct information. Instead, the proper approach is for the reviewing judge, after excluding the erroneous information, to assess the affidavit as a whole to see whether there remains a basis for the authorization in the totality of the circumstances.

[32] Further, in R. v. Campbell, [2010] O.N.C.A. 588, para. 23 (affirmed by the Supreme Court of Canada in 2011) said the following:

The warrant is to be examined as a whole that is with respect to the totality of the circumstances. The court is not to analyze isolated passages, for to do so would be inconsistent with the legal requirement that the issuing justice must act judicially, which would include that he or she 'diligently and independently' review the entire information to obtain (ITO) and consider all of its content.

[33] Search warrants are generally presumed to be valid. A search warrant becomes invalid if the applicant is able to demonstrate on the balance of probabilities that there is an absence or insufficient reasonable grounds to support or justify the authorization. In R. v. Brown, 2011 ONSC 6223, [2011] O.J. No. 4624 (S.C.J.), at para. 7, O'Marra J., dealing with similar issue to the one the court is addressing in this case noted:

Under s. 487 (1) of the Criminal Code an authorizing Justice must be satisfied based on the information presented that there was reasonable grounds to believe that evidence will be found of a criminal offence. Where a search warrant has judicially authorized pursuant to s. 487, as in this case, it is to be considered presumptively lawful by the reviewing justice. As a lawful search the onus is on the applicant to establish that the pre-condition have not been met, that is there is no basis for the authorization of the warrant.

[34] The court's task is additionally guided by R. v. Campbell, supra at para. 45, which states that the presumption in this context means that the decision of the authorizing Justice must be upheld unless the applicant meets the burden of demonstrating the invalidity of the warrant. In other words, "[t]he reviewing judge on a Garofoli hearing only inquires into whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed": see R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] S.C.J. No. 67.

[35] The test to be applied by the reviewing judge on the question of the issuing of the search warrant was set out by the Supreme Court of Canada in R. v. Garofoli, supra. The Court says the following:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, 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. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[36] Further guidance is found in R. v. Nguyen, [2011] O.N.C.A. 465 at para 23, where the Court of Appeal stated:

The ultimate test is whether – after excising any offending portions of the ITO – there remains a sufficient basis on the record before the issuing justice, as amplified on the review, for issuance of the warrant

[37] At para 57, Nguyen, supra, provides further directions as to the nature of review the court must conduct. The focus must be on what is the "heart" of the application:

However, the review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application.

THE USE OF CONFIDENTIAL INFORMANTS IN SEARCH WARRANTS

[38] R. v. Debot, [1989] S.C.J. No. 118 at para. 53 directs the reviewing judge to ask three questions to ascertain whether the information relied upon by the police is capable of justifying the search:

1. Was the information predicting the commission of a criminal offence compelling?

2. Where that information was based on a "tip" originating from a source outside the police, was that source credible?

3. Was the information corroborated by police investigation prior to making the decision to conduct the search?

[39] These factors are not to be analysed and evaluated each in isolation, weakness in one factor can be offset by the strength in another. The reviewing judge must consider the totality of the circumstances, the balance of the information in the ITO and determine if the standard of reasonable grounds to believe justifying the granting of the search warrant were met. As noted in R. v. Campbell, supra, at para. 57:

Considered independently each of these grounds may not have justified the authorization. However, a justice of the peace could have found from their cumulative effect that there were reasonable grounds to issue the warrant.

ANALYSIS

[40] From the case law, it is clear that a degree of deference is owed to the authorizing justice: absent jurisdictional error, his decision will not be interfered with, regardless of what the court would have done. Thus, in determining if the search warrant is valid in the context of this analysis and given the court's ruling above, the remaining issue is whether there remains a justifiable basis for the issuance of the warrant.

[41] As noted earlier, the edited ITO does not, by itself, present valid grounds to justify a search warrant. As a result, the Crown requested that the court engage in the Step 6 mechanism developed by the Supreme Court in R. v. Garofoli, supra, at para. 79. This procedure allows the court to examine and assess the un-redacted portion of the ITO that was presented to the issuing Justice. Thus, the court's analysis will be premised on the unredacted version of the ITO and will determine whether the full gamut of information from the confidential informant was sufficiently credible, compelling and corroborated. In other words, whether the Debot requirements had been met.

[42] The court shall be assessing each factor separately. However, the court is mindful that the test is the totality of the circumstances, and the information in the ITO must be considered in its entirety to determine whether there were reasonable grounds for the search warrant's authorization. It is important to note that the details with respect to the court's findings will be restricted because of the sensitive nature of the information being assessed and the court's obligation to protect the identity of the confidential informant.

1. WAS THE INFORMATION COMPELLING?

[43] The first question the court must ask is whether the information was compelling.

[44] The following are relevant questions to be asked in order to determine if indeed the information was compelling.

(a) Was the CI's information firsthand knowledge or hearsay?

(b) Was the information common knowledge, easily obtained or was it suggested by the very nature of the information that the CI had personal knowledge of the accused's criminal activities?

(c) Was the information provided by the CI precise, detailed and specific about the firearm to be found in the accused's home, i.e., type, colour, and size of the firearm?

(d) Was the nature of the information such that it could be said to be based on more than just rumours and gossip? And did the CI have specific information about the accused and the other individual connected to the apartment?

(e) Was the information from the CI such that it clearly reveals how he or she had the opportunity to obtain the knowledge of the firearm and of the accused's connection to the firearm?

(f) Was the information from the CI relative to the accused and the firearm current or not?

[45] The un-redacted information the court reviewed led to the conclusion that the justice could have found that the information from the CI viewed in its entirety to be compelling in nature. It was greatly detailed and descriptive in its details, revealing a significant breadth of knowledge on the subject.

[46] Unfortunately, for the court to provide further reasons for its finding, the court is of the view that it would run the risk of exposing the identity of the CI.

2. WAS THE INFORMANT CREDIBLE?

[47] In order to determine this issue the court is of the view that the following questions must be asked:

(a) Did the CI ever provide reliable information to the police in the past?

(b) Does the CI have a criminal record with entries of dishonesty, fraud, perjury or obstruction of justice?

(c) Does the CI have some particular motivation, i.e., outstanding charges or receiving benefits for the information provided to the police?

[48] An examination of the disclosed ITO and the judicial summaries revealed the following. The CI provided information in the past to the police as disclosed in the judicial summary. The CI has a record of past performance. Whether or not the CI has a criminal record and what it entails was disclosed to the issuing justice and this information was included in the judicial summary provided to the defence. The motivation of the CI for providing the information to the police was disclosed by the affiant to the justice and if what or any consideration was sought by the CI.

[49] The CI was well known to the police to be entrenched in the criminal sub-culture. Further, there is additional information in the un-redacted portion of the ITO on the question of credibility as it relates to past conduct of the CI that the court is not able divulge as part of this analysis but have nevertheless taken into consideration.

[50] As already indicated, counsel for the defence argued the failure of the CI to mention the presence of dogs in the apartment brings into question the credibility of the informant. After careful examination of the un-redacted ITO, the court does not share that view. The court finds that in combination with the disclosed information, there is other information found in the ITO that diminishes counsel's argument and speaks strongly to the credible nature of the information.

[51] From the court's perspective relying on the information that was presented to the justice, the court concludes that the CI was a credible source of information.

3. WAS THERE CORROBORATION?

[52] To conduct this prong of the analysis the following questions are crucial:

(a) Were the police able to verify any information beyond that which is ordinarily available to anyone?

(b) Was the information collected by the police able to confirm the criminal conduct being investigated?

[53] In this case the police were able to verify a significant amount of biographical information that was provided by the CI. These included the specific apartment number, the persons with whom the accused resided (namely Ms. Samantha Santos, and their three children) and that the apartment was leased to both of them as tenants. The court hasten to note by itself that such biographical detail represents little in terms of corroboration. In other words it is somewhat weak.

[54] Given the nature of the alleged offence – possession of a firearm in an apartment unit – it appears to the court that there were limited opportunities for corroboration of the alleged offence, i.e. to confirm the actual presence of a firearm in the accused's apartment. As the court understands the case law, there need not be confirmation of a crime being committed for the question of sufficiency to support the issuance of a warrant, what is required as noted in R. v. Caissey, 2007 ABCA 380, [2007] A.J. No 1342, at para. 23; aff'd [2008] 3 S.C.R. is that:

The issue on review is whether there is some evidence that might reasonably be believed to support the issuance of a warrant, not whether there is some guarantee that the informant is telling the truth when he makes the allegation of criminal activity. Information of a crime being committed does not have to be confirmed: Koppang, [2004] A. J. No. 1300, at para 8. I agree with the comments of Doherty J. A. in R.v. Lewis (1998), 38 O.R. (3d) 540, 107 O.A.C. at para.22: In concluding that the totality of the circumstances did not provide reasonable grounds for the arrest, I do not suggest that there must be confirmation of the very criminality of the information given by the tipster. The totality of the circumstances approach is inconsistent with elevating one circumstance to an essential prerequisite to the existence of reasonable grounds.

[55] The corroboration in this case was weak; however, given the nature of the alleged criminality, the court is of the view not much more could have been done short of going into the apartment to confirm the presence of the firearm. Weakness in one factor can be strengthened by the other factors, when the evaluation is done in the context of the totality of the circumstances. In this case the informant provided information that was not only detailed, but credible as well. In the context of the totality of the circumstances, the court concludes that there were sufficient reasonable grounds that could justify the Justice issuing the search warrant.

[56] At this point, the court wishes to add that the court is aware that the reasons provided are not as detailed and robust as one would expect. However, when assessing the criteria the court has just mentioned, the court is limited in the reasons that can be given because there is a risk that any further comments may very well disclose the identity of the informant. The sparseness of the court's sentence underscores the need for the Garofoli Step 6 procedure to be one of last resort.

CONCLUSION

[57] After considering the totality of the information and disregarding the excised paragraph, the court is of the view that the applicant has not proven on a balance of probabilities that his rights pursuant to section 8 of the Canadian Charter of Rights and Freedoms has been breached. As a result the application is denied. The search on the accused's home was executed pursuant to a properly authorized warrant.

Released: May 14, 2013

Signed: "Justice Hall"