Court File and Parties

COURT FILE NO.: CR-19-50000017-0000 DATE: 20190618

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – LEONE BRUNO Applicant

Counsel: Philip Enright, for the Crown Lisa Jørgensen and Cosmo Galluzzo, for the Applicant

HEARD: April 15, 16 and 17, 2019

Davies J.

REASONS FOR DECISION

(GAROFOLI APPLICATION)

A. Introduction

[1] Acting on information from a confidential informant, the Toronto Police obtained a warrant to search Mr. Bruno’s house and vehicle. The police searched the house and found 21 licensed handguns and 44 licensed long-guns, some of which were stored in an unsafe manner. The Police also found ammunition and four illegal handguns. Mr. Bruno was charged with a number of firearms related offences based on the items found in his home.

[2] Mr. Bruno brought an application to exclude all the evidence found during the search of his residence on the grounds that the Information to Obtain (“ITO”) failed to disclose a proper basis upon which the warrant could have been issued and, as a result, the search of his house constitutes a breach of his rights under s. 8 of the Charter.

[3] The ITO disclosed to the defence was heavily redacted to protect the identity of the confidential informant. The Crown conceded that the redacted ITO cannot withstand Charter scrutiny. Nonetheless, the Crown argued that the unredacted warrant, which was before the issuing justice, does disclose reasonable and probable grounds to believe that an offence had been committed and evidence would be located in Mr. Bruno’s residence. Relying on the sixth step articulated in R. v. Garofoli, [1990] 2 S.C.R. 1421, the Crown asks me to consider the information that has been redacted from the ITO when I assess the validity of the warrant. Before I can consider any of the redacted information, Mr. Bruno is entitled to a judicial summary of the redactions. I must be satisfied that, based on the judicial summary and other information available to the defence, Mr. Bruno is “sufficiently aware of the nature of the excised material to challenge it in argument or by evidence”; Garofoli, at para. 79. In other words, Mr. Bruno must have enough information about the content of the redactions to allow him to mount a facial or sub-facial challenge to the ITO.

[4] Counsel for Mr. Bruno sought to cross-examine the affiant on a number of issues. Some of the issues were relevant to the validity of the warrant. Others were relevant only to the issue of whether the evidence should be excluded under s. 24(2) of the Charter if Mr. Bruno’s rights were violated. In an oral ruling given during the course of the hearing, I granted leave to question the affiant on one issue relevant to the validity of the warrant, namely whether the affiant took steps to identify the source of second hand information that was provided to the police by the confidential informant. I deferred my ruling on the defence request to cross-examine the affiant on issues related only to the s. 24(2) argument until after I ruled on the validity of the warrant.

[5] To avoid any risk of breaching confidential informer privilege, I directed that the permitted questions be put to the affiant in writing. His answers were put in a supplementary affidavit that was filed as an exhibit on the application; see R. v. Greaves-Bissesarsingh, 2014 ONSC 4900.

[6] Notwithstanding the additional information contained in the supplementary affidavit, counsel for Mr. Bruno argues that the judicial summary provided is insufficient. As a result, counsel has argued I cannot consider any of the redacted information. Counsel further argues that, in light of the Crown’s concession that the redacted ITO is insufficient to uphold the warrant, I must find that Mr. Bruno’s rights under s. 8 of the Charter have been violated.

[7] There are two issues for me to decide:

a. Does the judicial summary, when considered together with the redacted ITO and other information available to the defence, provide Mr. Bruno with enough information about the redacted information to permit him to challenge the validity of the warrant in argument or by evidence?

b. If the defence has sufficient information to challenge the warrant, does the unredacted warrant disclose reasonable grounds to believe that an offence was committed and evidence of that offence would be found in Mr. Bruno’s home?

[8] For the reasons set out below, I am satisfied that the judicial summary provides the defence with sufficient information to allow them to evaluate whether the preconditions for issuing the warrant were met and to challenge the validity of the warrant through argument or evidence. I am, therefore, entitled to consider the full ITO that was before the issuing justice. Having considered the unredacted ITO, I am satisfied that it discloses grounds on which the warrant could issue. On that basis, I find that Mr. Bruno’s s. 8 rights have not been violated.

B. Applicable Legal Principles

[9] The question on this application is whether the ITO contained sufficient credible and reliable evidence to establish reasonable grounds to believe that an offence had been committed, and that evidence of that offence would be found in Mr. Bruno’s residence and vehicle. This is not a de novo review of the ITO. If, based on the record that was before the authorizing justice, as amplified on review, I conclude that the warrant could have been issued, I must not interfere; Garofoli, at para. 56.

[10] In this case, the grounds are based almost entirely on information provided to the police by a confidential informant. I must, therefore, consider whether the informant is credible, whether the information provided is compelling and whether the police corroborated the information provided by the informant; R. v. Debot, [1989] 2 S.C.R. 1140, at para. 53.

[11] In assessing whether the informant is credible, the reviewing court should consider whether the informant has provided information to the police in the past and, if so, whether that information provided proved to be accurate. The court should also consider whether the informant has a criminal record or any outstanding criminal charges that are relevant to their credibility. It is also important to consider the informant’s motivation for providing information to the police, and any benefit they hope to receive; Greaves-Bissearsingh, at para. 35, R. v. Fermah, 2019 ONSC 753, at para. 11.

[12] Whether the information provided by the informant is compelling will depend on a number of factors including: the level of detail provided; whether the information is based on first hand observations or hearsay; whether the information provided is current; and, whether the information provided is likely known by many or just a few people; Fermah, at para. 10.

[13] Finally, the court must consider whether the police took steps to corroborate the information provided. The police are not required to corroborate every detail provided by the informant. However, corroboration of more specific, exclusive information will be more persuasive than corroboration of commonly known information; Fermah, at para. 12.

[14] As set out above, the Crown seeks to rely on the redacted information to support the warrant in this case. This is an exceptional procedure. I am being asked to rely on information that has not been disclosed to the accused. And, as is often the case, the information that has been redacted from the ITO in this case is the most pertinent to the court’s assessment of the validity of the warrant; R. v. Rocha, 2012 ONCA 707, at para. 51. Before acceding to the Crown’s request, the defence is entitled to a judicial summary of the redacted information and I must be satisfied that the defence has enough information about the redacted information to be in a position to effectively challenge the warrant; R. v. Crevier, 2015 ONCA 619, at paras. 89-90. Given that a confidential informer was involved in this case, the judicial summary should include information that speaks to whether the information was compelling and corroborated, and whether the informer was credible.

[15] Given the exceptional nature of the sixth step in Garofoli, it is important not to lose sight of the interests that are at stake. First and foremost, Mr. Bruno has a constitutionally protected right to make full answer and defence, which included the right to full disclosure and the right to challenge the admissibility of evidence tendered by the Crown; Crevier, at para. 52. However, this right is not without limits. Balanced against it is the need to scrupulously protect the identity of confidential informants, given the vital role they play in effective law enforcement: Named Person v. Vancouver Sun, 2007 SCC 43, at paras. 26–27.

[16] The key to protecting an accused’s right to make full answer and defence in the context of a step six Garofoli application is ensuring that the accused has sufficient information about the content of the warrant to permit both a facial and sub-facial attack on its validity. The judicial summary of the redactions must contain as much information as possible without compromising informer privilege; Crevier, at para. 83.

[17] In R. v. Reid, the Court of Appeal noted that the reviewing court is entitled to consider all the information known to the accused, not just the content of the judicial summary, in deciding whether it is appropriate to resort to step six of Garofoli:

[R]ecall that the judicial summary is not the only means available to an accused to challenge the issuance of the warrant. An accused may seek leave to cross-examine the author of the ITO, may rely on other information that has been the subject to Crown disclosure, or may adduce other evidence.

[18] The Court of Appeal provided important guidance to trial judges for assessing the adequacy of a judicial summary in Crevier. The Court held, at para. 72, that the accused is entitled to know “only the nature of the redacted details, not the details themselves”; see also In R. v. Reid, 2016 ONCA 524, at para. 90.

[19] In Crevier at para. 77, the Court held that the accused’s inability to know the redacted details of what an informant told the police will not necessarily prevent the accused from mounting a meaningful sub-facial attack on the warrant:

Despite not having access to the redacted information, the accused, using a well‑crafted judicial summary as well as the disclosure received, the redacted ITO, and any cross-examination of the affiant and evidence tendered, will nonetheless be in a position to mount a sub-facial attack and challenge the adequacy of the ITO. The accused can, for example, highlight areas of omission for the reviewing court, attack the steps (or lack thereof) taken to corroborate the information received from the informer, and make arguments in the alternative and on general principles of informer reliability.

[20] In Crevier, at para. 84, the Court provided the following list of types of information that might be included in the judicial summary:

• The source of the informer’s information (first-hand, hearsay, and if hearsay, the source of that hearsay)
• The informer’s relationship with/to the accused and how they first came into contact
• The length of time the informer has known the accused and the frequency of contact between them
• Whether the informer has previously provided information to police
• Whether previous information provided (if any) has led to arrests, seizures, or convictions
• Whether past information provided by the informer has ever been proven unreliable or false
• Whether the informer has a criminal record and, if yes, whether the unredacted ITO includes details of the convictions or charges or whether a copy of the criminal record was appended
• Whether the informer has convictions for offences of dishonesty or against the administration of justice
• The informer’s motivation for speaking to police, including whether consideration was sought or arranged
• Whether the informer was instructed on the penalties for giving false information
• Whether descriptions provided by the informer match the accused or the target location
• The degree of detail of the information that the informer provided to police
• The recency or timing of the information that the informer provided to police
• Any discrepancies between the information of one informer and another
• Any aspects of the informer’s information that are contradicted by police investigation or otherwise detract from its credibility
• Any errors or inaccuracies that exist in the ITO, and their nature (e.g. typographical errors)

[21] The Court was clear that this list was neither prescriptive nor exhaustive: a failure to include one or more of the points listed will not necessarily make the summary inadequate.

[22] As Campbell J. held in R. v. Boussoulas, 2014 ONSC 5542, at para. 69, under the step six procedure, defence counsel may be required to approach their argument with greater creativity, considering the potential factual scenarios that are left open by the information contained in the summary. The fact that the defence may only be able to make submissions on a hypothetical basis based on the limited information contained in the summary is not fatal to the Crown request to resort to step six of Garofoli. In fact, it is an inevitable feature of this type of proceeding.

C. Adequacy of the Judicial Summary

[23] The Crown prepared a draft judicial summary in this case, which was disclosed to the defence in advance of the Application. Through careful and at times cryptic discussion with the Crown, which took place in open Court, some of the original redactions were lifted and a number of additions were made to the judicial summary. As set out above, the defence was also granted leave to question the affiant on what efforts, if any, were made to corroborate hearsay information provided by the confidential informant to the police.

[24] As recommended by the Court of Appeal for Ontario in Crevier, at para. 85, the judicial summary tracked the redactions in the ITO, paragraph by paragraph and describes the nature of information behind each redaction.

[25] However, the fact that the judicial summary follows the suggested format is not determinative. Defence counsel argued that the summary was little more than a table of contents of the redactions, and does not provide sufficient information to allow them to make meaningful submissions. The issue for me to decide is whether the judicial summary, coupled with the supplementary affidavit from the affiant and other information available to the defence, provides Mr. Bruno with a meaningful basis to challenge the sufficiency of the ITO, including whether the information from the Informant is credible, compelling and corroborated. For the reasons set out below, I am satisfied it does.

i. Credibility of the Affiant

[26] The defence argues that there is insufficient information to allow them to make submissions about the credibility of the informant. I disagree.

[27] In relation to the informant’s motive, the defence knows that the informer is a concerned citizen who has a criminal record but was not facing any charges or in custody at the time she/he spoke to the police. This excludes a number of possible motives in this case. The defence also knows that the informer’s criminal record was appended to the ITO and his/her actual motive for providing this information was disclosed to the issuing justice. This permits the defence to make submissions, perhaps in the alternative, about how the informant’s motive and criminal record might impact his/her credibility.

[28] While the defence does not know the source of each piece of information provided, they do know that the information provided about the illegal gun is second hand. They also know that the source of that information is identified. They also know that second hand information detailed in a number of specific paragraphs in the ITO came from the same source. Based on the questioning I permitted of the affiant, the defence also knows that the police do not know and did not take steps to find out the precise identity of the person or people who gave information to the informant. As a result, the police have no information about the reliability of the person or people who gave information to the informant about Mr. Bruno.

[29] The judicial summary confirms that the ITO contains information about whether or not the informant has previously provided information to the Toronto Police Service. The paragraph of the redacted ITO that deals with this issue is a single sentence which reads as follows: “The Source has [redacted] to the Toronto Police in the past.” There are only two options in relation to this issue. If the informant has not provided information to the police in the past, there would be nothing further for the affiant to disclose. If the informant has provided information to the police in the past, it is clear that no further information was provided in the ITO about the reliability or accuracy of any previously provided information. The defence can easily make alternative arguments about this issue without the actual content of that redaction.

[30] The defence also argues that they cannot ascertain the recency of the information provided by the informant. It is true that the defence does not know the precise date on which the informant spoke to the police, or the precise age of the information provided. Disclosing precise dates to the defence would very likely identify the informant in this case. Nevertheless, the defence does know that the informant spoke to the police twice in January 2018. They also know that the redacted information discloses the date on which Mr. Bruno is said to have bought a handgun. The defence, therefore, knows that the issuing justice would have had some indication of the recency of the information. Again, knowing this information permits the defence to make meaningful submissions based on a number of reasonable alternatives: that the information is recent, that it is somewhat dated, or that it is stale.

[31] Finally, the defence argues that they have insufficient information to make meaningful submissions about the nature of the relationship between Mr. Bruno and the informant and how that might impact on my assessment of the validity of the ITO. This is a difficult and common concern. Clearly, the nature of the relationship between the informant and the accused can be highly relevant to an assessment of whether the information provided is compelling and whether the informant is credible. But if details of their relationship are disclosed, Mr. Bruno would almost certainly be able to identify the informant. The defence does know that the informant had at least one interaction with Mr. Bruno personally, and the date of that interaction is disclosed. They also know the informant received information about Mr. Bruno from a number of other people. With this information, the defence is able to make meaningful submissions on how I should assess the nature of their relationship and how that might impact on the credibility of the informant.

[32] Based on the totality of information known to the defence, I am satisfied that the defence is able to make meaningful submissions about the credibility of the informant and the information provided by this person to the police.

ii. Compelling Nature of the Information Provided

[33] The defence asked me to excise one paragraph from Appendix “D” to the redacted ITO, namely paragraph 2(g). The summary of this paragraph reads as follows:

The redacted words from this paragraph (which comprises 2 sub-paragraphs) detail particular pieces of information about [Mr. Bruno’s residence]. The paragraphs do not directly identify the means by which the source came to know about these details. But when read in conjunction with the previous paragraphs set out earlier in the Information to Obtain (particularly paragraph 1(m)), the means by which the source learned the information can be inferred.

The information contained in paragraph 2(g) of Appendix “D” is relevant to an assessment of whether the information provided by the informant is compelling.

[34] I am satisfied that none of the other details from this paragraph can be disclosed without compromising the identity of the informant in this case. Nonetheless, I also agree that the summary of this paragraph does not provide the defence with enough information to permit them to make meaningful submissions. As the Court held in Crevier, at para. 87, to the extent that the summary makes the accused sufficiently aware of the nature of only some of the redacted information, the reviewing judge should “disregard those redacted portions the nature of which could not be summarized and provided to the accused.” I will, therefore, not consider the content of paragraph 2(g) of Appendix “D” in my assessment of the warrant as a whole.

[35] Nonetheless, I am satisfied that the balance of the redacted ITO, together with the judicial summary provide the defence with sufficient information to make submissions about whether the information provided should be considered compelling or not.

[36] A number of the redacted paragraphs contain information about an illegal handgun. The defence knows from the ITO and the judicial summary that some of the information provided by the informant about the illegal firearm was second hand information, and that no steps were taken to investigate the credibility of the person who provided that information to the informant.

[37] In addition, the judicial summary discloses a significant amount about the level of detail provided by the informant to the police. For example, the defence knows that the informant provided information about when Mr. Bruno bought the handgun, why he bought it, and the consideration exchanged for it. The informant also provided information about other guns that Mr. Bruno owns. The informant described Mr. Bruno’s residence and who lives there. Finally, the informant described at least one personal interaction with Mr. Bruno. Taken together, this provides the defence with sufficient information to make submissions on whether the information provided by the informant should be considered compelling.

iii. Corroboration

[38] The ITO details a number of investigative steps taken by the police before requesting a warrant to search Mr. Bruno’s residence and vehicle. They performed a number of database checks for information about Mr. Bruno, including the Canadian Police Information Centre database (CPIC), the Canadian Firearms Registry Online, the Ministry of Transportation of Ontario database and the Criminal Information Processing System. Based on these searches, the police confirmed Mr. Bruno’s address and obtained information about a vehicle associated with Mr. Bruno. They also learned that Mr. Bruno had a valid firearms license and 21 registered firearms. They also obtained information about two previous occurrences in which Mr. Bruno was the complainant. Finally, they learned that Mr. Bruno was charged with fraud in 2000 but the charges were withdrawn. These occurrence reports were provided to the defence by way of disclosure.

[39] The ITO also describes surveillance conducted by the police.

[40] Importantly, the defence also knows that the police did not attempt to identify the source that provided the affiant with the second-hand information reported.

[41] Of course, it is not possible to disclose whether any of the investigative steps yielded corroborating evidence without disclosing the information provided by the informant. Nonetheless, the defence knows what investigative steps were taken and can make submissions about whether they were sufficient given the nature of the information provided by the informant, including the fact that some of the information provided was second-hand.

iv. Conclusion

[42] In my view, a sufficient level of detail was provided in the ITO, judicial summary, supplementary affidavit, and disclosure to enable the defence to make meaningful submissions on the facial and sub-facial validity of the warrant. Accordingly, I will consider the full ITO, with the exception of paragraph 2(g), in my assessment of whether the warrant discloses reasonable grounds to believe an offences has been committed and evidence of the offence would be found in Mr. Bruno’s house and vehicle.

D. Validity of the Warrant

[43] The defence argues that the information disclosed by the informant in this case is not credible or compelling. The defence also argues that the police did not do enough to corroborate the information provided by the informant, particularly in light of the fact that much of it was second-hand information. Finally, the defence attacked the facial validity of the warrant, arguing that the affiant failed to make full, fair, and frank disclosure in the ITO when he summarized the earlier occurrence reports involving Mr. Bruno.

[44] The Crown argues that, when read as a whole, the ITO provides enough information to permit the issuing justice to assess whether the information provided by the confidential informant was compelling, credible, or corroborated. The Crown acknowledged that the information about the informant’s credibility was limited, but argued that any weakness in that area is compensated for by the compelling nature of the information and the extent of the police efforts to corroborate the information; Debot, at para. 53. The Crown also argues that the police did not mislead the issuing justice about the occurrence reports.

[45] Having reviewed the full content of the ITO, minus the details in paragraph 2(g) of Appendix “D”, I am satisfied that the issuing justice could reasonably have concluded that there were reasonable grounds to support the issuance of the warrant.

i. Credibility of the Informant

[46] I agree with the Crown that the informant’s credibility is the weakest of the three Debot criteria in this case. Nonetheless, the ITO does contain some important information that would have allowed the issuing justice to assess the credibility of the informant. For example, the ITO discloses the informant’s full criminal record, including whether the informant has been convicted of any “crimes of dishonesty.” The ITO also discloses that the informant was not facing any outstanding charges at the time this person spoke to the police, and was not in custody. The issuing justice, therefore, knew that the informant was not motivated by a request or hope for leniency in relation to their own involvement in criminal activity. The ITO discloses the informant’s motivation, which the issuing justice was able to assess based on the other information in the ITO.

[47] What is missing from the ITO is information about the true nature and extent of the informant’s relationship with Mr. Bruno. The ITO describes one encounter between them. There is also a small amount of other information about how they know each other and whether they have interacted with each other beyond the one instance described. However, the true nature and extent of their relationship is not clear.

[48] More significantly, some of the information provided to the police by the informant is second hand information. One of the sources is described in the ITO but is not specifically identified. The other sources are not identified in any manner. The police made no efforts to identify the sources. As a result, the issuing justice was not in a position to assess the credibility of the people from whom the informant received information that was relayed to the police.

[49] To be clear, none of the information contained in the ITO should have caused the issuing justice to question the informant’s credibility. Rather, it is the paucity of information about a number of important issues – including the credibility of second hand information and the extent of his/her relationship with Mr. Bruno – that would have limited the ability of the issuing justice to fully assess the credibility of the informant and the information he/she provided. Nonetheless, I am of the view that any weakness in this area is made up for by the compelling nature of the information provided and the nature of the information the police were able to corroborate.

ii. Compelling Nature of Information

[50] While some of the information in the ITO is not particularly compelling, there is enough information that is compelling that would justify relying on the information provided by the informant. I cannot catalogue the details provided by the informant without compromising the privilege. I can, however, make some general comments about the nature of the information in the ITO.

[51] Some of the information provided about Mr. Bruno was of a general nature and was likely known to a number of people. For example, the informant knows Mr. Bruno’s address and described his house as a raised bungalow. The informant knows who lives with Mr. Bruno. The informant also knows that Mr. Bruno owns a cement company and could describe the type of truck he owned. Finally, the informant told the police that Mr. Bruno’s car was shot at and had a hole in the driver’s side door. None of this information was redacted from the ITO. This must mean that this information is widely known. Otherwise, disclosing to the defence that the confidential informant had shared this information with the police could have narrowed the pool of people who could be the informant, thereby threatening the identity of the informant. However, information of that sort – general and widely known – is less compelling.

[52] Some of the information provided by the informant was second hand information from unknown sources and is, therefore, less compelling. In relation to other pieces of information provided, it is not clear whether they are based on personal observation or second hand information. However, some of the second hand information shared by the confidential informant with the police was also confirmed by first hand observations made by the informant. This increases the persuasiveness of the information provided when considered in its totality.

[53] Most importantly, however, the redacted information is very detailed and compelling, particularly in terms of connecting Mr. Bruno with the illegal handgun and connecting the handgun to Mr. Bruno’s residence and his vehicle. Based on the information that has been redacted from the ITO, the issuing justice was able to determine precisely how current the information was.

[54] Overall, there is sufficient information disclosed in the ITO to allow the issuing justice to assess how compelling the information was and how much reliance could be placed on it for the purpose of assessing whether there were reasonable grounds to support the issuance of the warrant.

iii. Corroboration

[55] The police did not obtain any information that would corroborate the criminal activity described by the confidential informant. This is not fatal to the validity of the warrant. In Rocha, at para. 22-23, the Court of Appeal noted that the police will “rarely be able to confirm the tip to the extent of having observed commission of the offence.” The Court also confirmed that that level of confirmation is not required.

[56] Similarly, in R. v. Behzad Eftekhari, 2012 ONSC 5140, at para. 24, Campbell J. noted that the quality of corroborating information can differ:

First, the personal information from the confidential informer as to the physical description and identity of the accused, his date of birth, the whereabouts of his apartment residence, and the fact that he had a motor vehicle were all subsequently confirmed by the police, through their own investigative efforts, to be entirely accurate. This adds at least some limited credibility and reliability to the information from the confidential source. Information may be confirmed and corroborated without necessarily providing evidence of the criminality alleged by the confidential informant. See: R. v. Lewis (1998), 38 O.R. (3d) 540 (C.A.) at para. 22; R. v. Koppang, [2004] A.J. No. 1300 (C.A.); Leave denied: [2005] 1 S.C.R. xi; R. v. Caissey (2007), 227 C.C.C. (3d) 322 (Alta. C.A.) at para. 12-25; Affirmed: 2008 SCC 65, [2008] 3 S.C.R. 451. On the other hand, the corroboration of innocent and general information is of only limited consequence in this analysis. Such public information could be gathered by nearly anyone familiar with the accused, and provides little insight into whether the accused was engaged in criminal activities. See: R. v. Zammit (1993), 81 C.C.C. (3d) 112 (Ont. C.A.) at para. 12, 26-28; R. v. Castillo, [2011] O.J. No. 2525 (S.C.J.) at para. 24-28. Indeed, in argument the Crown fairly conceded that, if this was the only corroboration of the information from the confidential informer, it would be insufficient to justify the issuance of the search warrant.

[57] Again, I cannot catalogue what details provided by the informant were corroborated by the police without breaching informer privilege. Nonetheless, it is clear, and would have been clear to the issuing justice, what information was corroborated by the police, and the nature of the corroboration. Some of the steps taken by the police corroborated only innocent and general information. This is of limited value in assessing the strength of the information provided. However, the police were able to confirm at least one very specific piece of information provided by the confidential informant about something that happened in the past that would not likely be known to many people. This significantly increases the credibility of the informant and the overall strength of the information provided.

iv. Facial Validity

[58] Counsel for Mr. Bruno also argued that the affiant failed to make full, fair, and frank disclosure in this case. In particular, counsel argues that the affiant mischaracterized two incident reports in the ITO. Both involve incidents in which Mr. Bruno was a victim of criminal conduct. Defence counsel argued that the summary in the ITO failed to mention that Mr. Bruno himself called the police, thereby suggesting that when he has a concern about illegal activity, he contacts the police. Counsel also argues that the summaries are written in a way to appear to be more corroborative than they actually are. Counsel filed the original incident reports as evidence on the Application.

[59] The first report relates to an arson on October 22, 2016. Mr. Bruno’s truck was set on fire while it was parked in his drive way. The report says that Mr. Bruno was alerted to the fire by a family member. He went out to the driveway and started to extinguish the fire using a hose. When the Toronto Fire Service arrived, a jerry can with a small amount of gasoline was found at the scene. The driver’s side window of the truck was smashed. Mr. Bruno gave a statement to the police. He told the police he owns a construction company. He said he thought he was being targeted because of competition in the industry. He also gave a description of a vehicle he saw driving away when he went out to extinguish the fire.

[60] This incident was summarized by the affiant in the ITO as follows:

In this report Leone BRUNO …noticed his 2013 Ford F-150 bearing Ontario marker 4054XJ on fire. When Leone exited his residence to extinguish the fire, he observed both front windows smashed and the fire in the front cabin. Leone also observed a red jerry can with a small amount of gasoline next to the vehicle.

The affiant mistakenly said that both windows of the truck were smashed. This error is inconsequential in terms of the overall content of the summary. Otherwise, the summary is accurate and fairly describes the incident. The details omitted by the officer would not have been relevant to the ability of the issuing justice to assess whether the ITO disclosed reasonable grounds to believe an offence had been committed and evidence of the offence would be found in Mr. Bruno’s house and vehicle. In fact, the omitted details about his company and disputes he was having with people in his industry would tend to corroborate information provided by the informant. Had they been included, that would have only made the ITO stronger.

[61] The second report relates to an incident on May 22, 2017. According to the report, Mr. Bruno’s wife heard two loud bangs. She reviewed the video captured by their security system and saw someone shooting at her husband’s truck, which was parked in the driveway. She called the police and her husband to tell them what had happened. When the police came to investigate, both Mr. Bruno and his wife spoke to the police. Mr. Bruno told the police about the earlier arson involving his truck. He told the police that he owns a business called Supreme Concrete. He also told the police about problems he was having with someone he had done some work for in the past. Mr. Bruno described this person as having connections to organized crime in Montreal. He also described how this individual refused to pay Mr. Bruno for work he had done and still owed him a significant amount of money. Mr. Bruno also told the police that this individual was claiming that Mr. Bruno owed him money, and was also trying to extort money from Mr. Bruno. He also said this individual tried to lend him money for his business and that he “wanted in” on Mr. Bruno’s company. Mr. Bruno told the police he thought that the individual who was trying to extort him was behind the shooting, although he was having problems with a few other people as well.

[62] Counsel for Mr. Bruno complains that the affiant did not include in the summary of this incident that it was Mr. Bruno who called the police and that Mr. Bruno declined the offer of a loan. The occurrence report says that Mr. Bruno’s wife called the police and both she and Mr. Bruno provided statements to the officers who attended. The summary makes it clear that Mr. Bruno spoke to the police so is not in any way misleading. In addition, the information contained in the summary of this occurrence in the ITO is accurate. The affiant did leave out the detail about how Mr. Bruno refused to accept an offer from this individual to loan him a significant amount of money for his business. The omission of this detail does not, however, meaningfully change the tenor of the summary. The crux of the information provided is that Mr. Bruno was having problems with the individual he believed shot at his car related to money and extortion attempts. That was conveyed in the summary. The inclusion of the additional detail about the loan offer that was refused would not have undermined the strength of the grounds set out in the ITO or the credibility of the informant.

[63] Notwithstanding the minor differences between the occurrence reports and the summaries in the ITO, I am satisfied that the affiant complied with his duty to provide full, fair, and frank disclosure.

v. Conclusion

[64] The unredacted ITO provided the issuing justice with ample information to assess whether the information provided by the confidential informant was credible and compelling. It also disclosed what efforts were made to corroborate the information provided. It is clear from the ITO as a whole that some information was corroborated and some was not.

[65] Having reviewed the full record that was before the issuing justice (with the exception of the one excised paragraph noted above), I am satisfied that it contained sufficient detail to allow the issuing justice to conclude that there were reasonable grounds to believe that Mr. Bruno was in possession of an illegal firearm and that evidence of that offence would likely be found in his house and/or vehicle. I, therefore, find the search warrant is valid and the search of Mr. Bruno’s residence and vehicle did not violate his rights under s. 8 of the Charter.

B. Davies J. Released: June 18, 2019

COURT FILE NO.: CR-19-50000017-0000 DATE: 20190618 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN V. LEONE BRUNO REASONS FOR DECISION (GAROFOLI APPLICATION) B. Davies J. Released: June 18, 2019