Court of Appeal for Ontario

Date: 2017-03-09 Docket: C59957

Judges: MacFarland, van Rensburg, and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Daron Anthony Thompson Appellant

Counsel

Jennifer Penman, for the appellant John Neander, for the respondent

Heard: February 17, 2017

On appeal from: The convictions entered by Justice Brian P. O'Marra of the Superior Court of Justice, sitting with a jury, on April 23, 2014.

Endorsement

Introduction

[1] The appellant was convicted of several offences involving the possession of a firearm and a dangerous weapon. The convictions followed a trial by judge and jury after the appellant's Charter applications under ss. 7, 8, and 9 were dismissed. The application reasons of Pattillo J. are reported at 2014 ONSC 250.

[2] This appeal concerns the appellant's s. 8 application to exclude evidence obtained pursuant to search warrants obtained under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and the Criminal Code, R.S.C., 1985, c. C-46. The warrants were based on information provided by a confidential informant ("CI"), computer checks of police databases, and several hours of surveillance of the appellant.

[3] The appellant challenged the validity of the warrants. The Crown conceded that even with the judicial summary of the redacted material in the ITO, it could not support the authorization of the warrants. The Crown then brought an application to have the application judge consider the unredacted ITO pursuant to step six of the procedure established in R. v. Garofoli, [1990] 2 S.C.R. 1421. The Crown's application was granted, the s. 8 application was dismissed, the evidence obtained in the searches was admitted, and ultimately the appellant was convicted of the offences.

[4] The appellant submits that the application judge erred in two ways: first, by not permitting the appellant to challenge the sub-facial validity of the redacted portions of the ITO; and second, by denying the appellant's request for the appointment of amicus curiae during the ex parte process.

[5] The appeal is dismissed for the reasons that follow.

A. Was a Sub-Facial Challenge Permitted?

[6] The principles governing step six of Garofoli were elaborated by this court in R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305. There is no need to repeat the analysis here.

[7] Some comments made by the application judge suggest that the appellant was not permitted to make a sub-facial challenge. However, when the application judge's reasons are read as a whole, it is clear that the appellant was permitted to make, and did make, the sub-facial challenge to the warrant he was entitled to make.

[8] The appellant used the judicial summary, the unredacted portions of the ITO, and information obtained from cross-examining the investigating officers and the CI's handler at the preliminary inquiry and as part of his s. 7 application, in arguing that the ITO contained misleading statements and material omissions. He was thus permitted to go behind the ITO to challenge the reliability of its content, with a view to excising parts that were misleading or inaccurate.

[9] The application judge dismissed the appellant's sub-facial challenge. He accepted the evidence of Officers Spencer, Warrener, and Edgar concerning the surveillance of the appellant and found that the ITO neither omitted any material facts concerning that surveillance nor was the information it provided misleading. The application judge specifically addressed the defence submission that the appellant was associated with a second address. He found that the ITO was not misleading in this regard and that the police conducted an adequate investigation to corroborate the CI's tip. The appellant was seen leaving and using a key to lock the apartment that was subject to the warrant. Although there was evidence that the appellant was associated with another address, the application judge found that the police were not required to investigate further and that evidence as to where the appellant's car was parked at another address was not a material fact that needed to be disclosed.

[10] The appellant submits that the judicial summary was inadequate to permit him to mount a sub-facial challenge. He provided an extensive list of information that he asserted required clarification. For example, the appellant says that there was no information as to the source of the CI's alleged knowledge, the CI's motivations, how the CI knew the appellant, if at all, and how the CI connected the appellant with the apartment in question.

[11] The application judge dismissed the appellant's request for additional information because he was satisfied that further disclosure could and would likely disclose the CI's identity. The appellant's application to cross-examine the sub-affiant on issues relating to the CI was dismissed for the same reason.

[12] As Crevier makes clear at para. 83, "the summary must provide the accused with a meaningful basis upon which to challenge whether the affiant made full and frank disclosure regarding the reliability of the informer and his or her tips, as required by Debot" (R. v. Debot, [1989] 2 S.C.R. 1140). A summary is not a complete substitute for disclosure, given the need to protect informer privilege. It is, by its very nature, general rather than detailed: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 88, leave to appeal refused, [2016] S.C.C.A. No. 432. A summary is sufficient if it provides an accused with sufficient knowledge about the nature of the redactions to enable them to be challenged in argument or by evidence: Crevier, at para. 72.

[13] In this case, the judicial summary explains the nature of the redacted information using the same headings, page numbers, and paragraph numbering and lettering as the redacted ITO. It was sufficient to permit the appellant to challenge, by argument or evidence, whether the CI was credible, whether the information provided by the CI was compelling, and whether the CI's information was corroborated, as required by Debot. Indeed, during his submissions on the warrant's validity, the appellant challenged aspects of the redacted material such as the currency of the CI's information and how the CI came upon his or her knowledge.

[14] This ground of appeal must be rejected.

B. Should Amicus Curiae Have Been Appointed?

[15] The appellant submits that amicus curiae should have been appointed in this case. The appellant submits, further, that amicus should be appointed in the "vast majority of cases" because it is "by and large a constitutional necessity to step six".

[16] These submissions must be rejected.

[17] As this court noted in R. v. Shivrattan, 2017 ONCA 23, at paras. 65-66, the trial judge has discretion to appoint amicus to assist in the consideration of issues relevant to confidential informants in "particularly difficult cases". But the appointment of amicus on a step six procedure is the exception rather than the rule. It is incumbent on the defence to demonstrate why the appointment of amicus is necessary in a particular case and to set out a proposed procedure for the use of amicus that protects the confidentiality of the CI's identity.

[18] The application judge accepted that amicus could be appointed but rejected the appellant's proposal that amicus be appointed in this case. He was satisfied that the information the appellant had – the judicial summary, along with unredacted information in the ITO and the information obtained from cross-examinations of the affiant and sub-affiant – was sufficient to enable the appellant to argue and to call evidence to establish that the warrants were not properly issued. The application judge's primary reason for rejecting the appointment of amicus was that it was unnecessary in the circumstances of this case.

[19] This was the application judge's decision to make and we see no basis to interfere with the exercise of his discretion.

[20] The appellant takes issue with a second reason proffered by the application judge for rejecting the appointment of amicus: that amicus would be effectively clothed with the duties of the appellant's counsel and would cease to be a friend of the court. The appellant submits that amicus would owe obligations to the court, not to defence counsel or the accused.

[21] However, as the court noted in Shivrattan, at para. 67, "there are many sensitive issues that would have to be resolved before the trial judge could appoint amicus on a 'Step Six' procedure," including the relationship between amicus and defence counsel. Steps would have to be taken to ensure that amicus did not inadvertently disclose anything that would reveal the identity of the CI.

[22] Given the application judge's finding that the appointment of amicus was unnecessary in this case, nothing further need be said about this concern.

[23] We note simply that the appellant's submission that amicus should be appointed in the vast majority of cases must be rejected. Nothing in the case law requires or supports this approach.

[24] It is wrong to assert, as the appellant does, that the step six process is "tantamount to a secret trial". A Garofoli review is an evidentiary hearing, and as such is concerned with the admissibility of evidence obtained pursuant to a search warrant that is presumptively valid: Reid, at para. 94. The essential premise underlying the step six procedure is that it may be used only if an accused is "sufficiently aware of the nature of the excised material to challenge it in argument or by evidence": Garofoli, at p. 1461.

[25] Although in exceptional circumstances amicus may have a role to play in a step six procedure, no basis has been shown for interfering with the application judge's decision not to appoint amicus in this case.

[26] The appeal is therefore dismissed.

J. MacFarland J.A. K. van Rensburg J.A. Grant Huscroft J.A.