Court of Appeal for Ontario

Date: 2019-07-05 Docket: C64531

Judges: Doherty, MacPherson and Benotto JJ.A.

Between

Her Majesty the Queen Respondent

and

Manjot Singh Dhesi Appellant

Counsel

Melanie J. Webb, for the appellant

Tanit Gilliam, for the respondent

Heard: July 3, 2019

Appeal Information

On appeal from the conviction entered on September 6, 2017 and the sentence imposed on November 10, 2017 by Justice Nyron Dwyer of the Ontario Court of Justice, sitting without a jury.

Reasons for Decision

Conviction and Charges

[1] The appellant was convicted on one count of possession of cocaine for the purpose of trafficking and one count of possession of the proceeds of crime ($20,710). He received a sentence of two years less a day, concurrent on both charges. The appellant appeals conviction and sentence.

[2] The police executed a search warrant at the appellant's home and discovered the cocaine and the cash. As in many drug prosecutions, the appellant's factual guilt was never in dispute. He argued at trial, however, that violations of his constitutional rights warranted either the exclusion of the evidence and an acquittal, or a stay of the charges. The trial judge rejected those arguments. Counsel renews them in this court.

The Information to Obtain and Confidential Informants

[3] The information to obtain the search warrant ("ITO") relied heavily on information provided by two confidential informants ("CIs"). The Crown provided the defence with a copy of the ITO redacted to protect the identity of the two CIs. The Crown conceded at trial that the issuance of the warrant could not be justified on the basis of the redacted ITO.

[4] The Crown invoked what is referred to as "step six" in R. v. Garofoli, [1990] 2 S.C.R. 1421. According to step six, the Crown is entitled to rely on the unredacted version of the ITO to justify the issuance of the warrant, even though the accused does not have access to the unredacted version, so long as the court can provide the accused with a judicial summary of the redacted portions that is sufficient to make the accused aware of the nature of the redacted content of the ITO so as to allow the accused to challenge the validity of the warrant: R. v. Reid, 2016 ONCA 524, at para. 86.

Trial Judge's Ruling

[5] The trial judge held that the judicial summary, combined with the redacted ITO and the other information available to the appellant on the warrant, allowed the appellant to engage in a meaningful challenge to the warrant. The trial judge held that the appellant's right to make full answer in defence was not compromised by allowing the Crown to rely on the unredacted ITO. There was no s. 7 breach and no grounds for a stay of proceedings [para. 14].

[6] The trial judge went on to conclude that the contents of the unredacted ITO provided a basis upon which the warrant could properly issue. There was no breach of s. 8 of the Charter, and the evidence was admissible [paras. 24-26].

[7] The appellant challenges both the ruling on the adequacy of the judicial summary, and the ruling on the ultimate validity of the warrant.

Did the trial judge err in holding that the judicial summary was sufficient?

[8] The trial judge identified and applied the correct principles summarized in R. v. Reid. His application of those principles to the specific circumstances before him is due deference in this court: R. v. Reid, at para. 92.

[9] In applying the legal principles, the trial judge referred to the contents of the summary at length. He noted several parts of the summary, which allowed the accused to make informed submissions about the CIs' credibility (e.g. the CI's involvement in the drug subculture, and the involvement in prior cases with the police), and the cogency of the CI's information (e.g. some, but not all, of the information was based on first-hand knowledge and observation). The summary also referred to information which had come from other sources and was said to corroborate aspects of the CI's information (e.g. the appellant's address, and the model of his automobile).

[10] In our view, it was open to the trial judge to reach the conclusion that the judicial summary, combined with the other information available to the appellant, put him in a position where he could meaningfully challenge the basis upon which the warrant issued even though he had not seen the unredacted ITO. Step six in Garofoli contemplates that an accused will have sufficient information as to the nature of the information in the ITO to permit meaningful submissions even though the specifics of the content of the ITO are not available. Step six does not envision a summary that will actually inform an accused as to the contents of the redacted portions of the ITO. That kind of summary would seriously compromise the CI's privilege.

[11] Obviously, an accused operating with a summary rather than a copy of the full ITO is at a disadvantage in attempting to show that the warrant should not have issued. The step six procedure, however, seeks to balance inherently conflicting interests. That balancing inevitably puts some limits on the accused that are not present in the normal course of litigation. Those limits do not amount to a per se violation of s. 7. The violation arises only if an adequate summary cannot be provided.

[12] The trial judge was satisfied that the information the appellant had allowed him to make informed submissions, which would direct the trial judge to matters that were relevant to the CIs' credibility and the cogency of the information provided to the police. We see no basis upon which to interfere with the trial judge's ruling.

Did the ITO justify the issuance of a warrant?

[13] A court reviewing the validity of a warrant starts with the presumption that the warrant – a judicial order – was lawfully issued. The review of the issuing of the warrant is limited to a determination of whether there was a basis upon which the warrant could properly issue: R. v. Garofoli, [1990] 2 S.C.R. 1421, at 1452.

[14] The ultimate validity of the warrant depended on the contents of the unredacted ITO. The trial judge could not, of course, refer to the redacted portions of the ITO in explaining why he was satisfied that the warrant would issue. His reasons consequently may seem somewhat cursory. The trial judge did, however, consider whether the ITO provided information that was germane to the credibility of the CIs, the cogency of the information they provided, and whether the information they provided was corroborated. He ultimately described the CIs' information as "sufficiently current", "very detailed" and confirmed "significant portions" by information from other sources.

[15] Our review of the unredacted ITO satisfies us that it was open to the trial judge to make those assessments.

[16] This ground of appeal fails, the warrant stands.

The Fitness of the Sentence

[17] The trial judge imposed concurrent sentences of two years less a day. His reasons demonstrate that he took into account all of the relevant mitigating and aggravating factors. The sentence imposed was within the range suggested in R. v. Woolcock, [2002] O.J. No. 4927.

[18] The appellant can point to no error in principle in the reasons. Nor do we see any material misapprehension of the relevant evidence. The sentence is not manifestly excessive. We see no reason to interfere with the sentence imposed.

Conclusion

[19] The appeal from conviction is dismissed. The appeal from sentence is dismissed.

"Doherty J.A."

"J.C. MacPherson J.A."

"M.L. Benotto J.A."