Her Majesty the Queen v. Gero

[Indexed as: R. v. Gero]

Ontario Reports Court of Appeal for Ontario Feldman, Tulloch and Hourigan JJ.A. January 27, 2021

154 O.R. (3d) 190 | 2021 ONCA 50

Case Summary

Charter of Rights and Freedoms — Search and seizure — Exclusion of evidence — Police obtaining search warrant for accused's apartment based on information provided by confidential informant — Summary of police notes inadvertently disclosed to defence revealed that information about accused's car and uncertainty about accused's apartment number had been redacted from version of information to obtain provided to defence — Trial judge dismissing accused's motion for disclosure and challenges under ss. 7 and 8 of Charter — Accused's appeal from conviction dismissed — "Step six" procedure relied upon by Crown to defend the warrant balanced accused's right with needs of law enforcement and did not deprive accused the right to make full answer and defence or deny a meaningful assessment of credibility — Warrant was properly issued as information was credible, compelling and corroborated — Canadian Charter of Rights and Freedoms, ss. 7, 8.

Charter of Rights and Freedoms — Fundamental justice — Full answer and defence — Police obtaining search warrant for accused's apartment based on information provided by confidential informant — Summary of police notes inadvertently disclosed to defence revealed that information about accused's car and uncertainty about accused's apartment number had been redacted from version of information to obtain provided to defence — Trial judge dismissing accused's motion for disclosure and challenges under ss. 7 and 8 of Charter — Accused's appeal from conviction dismissed — "Step six" procedure relied upon by Crown to defend the warrant balanced accused's right with needs of law enforcement and did not deprive accused the right to make full answer and defence or deny a meaningful assessment of credibility — Warrant was properly issued as information was credible, compelling and corroborated — Canadian Charter of Rights and Freedoms, ss. 7, 8.

Criminal law — Search and seizure — Search warrants — Validity — Information to obtain — Exclusion of evidence — Police obtaining search warrant for accused's apartment based on information provided by confidential informant — Summary of police notes inadvertently disclosed to defence revealed that information about accused's car and uncertainty [page191] about accused's apartment number had been redacted from version of information to obtain provided to defence — Trial judge dismissing accused's motion for disclosure and challenges under ss. 7 and 8 of Charter — Accused's appeal from conviction dismissed — "Step six" procedure relied upon by Crown to defend the warrant balanced accused's right with needs of law enforcement and did not deprive accused the right to make full answer and defence or deny a meaningful assessment of credibility — Warrant was properly issued as information was credible, compelling and corroborated.

Police received a tip from a confidential informant who recently purchased drugs from the accused at his apartment. The informant identified the accused by his nickname and advised the police about the drugs being sold. The street address of the accused's apartment building was given, but there was some uncertainty as to the apartment number. The police filed an information to obtain (ITO) in support of a search warrant to be executed on the accused's apartment. The ITO indicated that the informant had provided information to the police in the past and had a criminal record, although no details of that record were provided. A Community Inquiry Report identified to police that the accused's apartment number was 602. The search warrant was executed and the police found two scales, a grinder covered in drug residue, a drug press, cocaine, Oxycocet pills and $80 in Canadian currency. A summary of the notes taken by police when interviewing the informant was inadvertently disclosed to defence counsel. The summary indicated that the accused drove a red car and lived in apartment 601 or 602. In the version of the ITO provided to the defence, references to the red car and to apartment 601 had been redacted. The accused challenged the validity of the search warrant pursuant to s. 8 of the Canadian Charter of Rights and Freedoms. The Crown engaged the "step six" procedure to defend the warrant and provided the trial judge with a copy of the unredacted ITO and a proposed judicial summary. The accused brought a motion for disclosure of the details of the facts presented in the proposed summary. On the motion, the Crown did not concede that the red car tip would have remained undisclosed in the judicial summary but for the accidental disclosure, but did concede that the police could not corroborate the existence of the red car. The Crown also conceded that the ITO incorrectly identified apartment 602 as being the first, rather than the second, door on the right after exiting the elevator. The trial judge, after reviewing the redacted ITO, the unredacted ITO and the Crown summary, dismissed the disclosure motion. The s. 8 application was also dismissed, as was a s. 7 challenge to the step six procedure. The accused was convicted of two counts of possession of a controlled substance for the purpose of trafficking and one count of possession of the proceeds of crime. He appealed his conviction.

Held, the appeal should be dismissed.

The step six procedure did not infringe s. 7 of the Charter. The accused argued that the procedure deprived him of the right to make full answer and defence, but that argument appeared to be premised on the basis that the only interests engaged in the procedure were those of the accused. The procedure had been designed by the Supreme Court of Canada to balance the Charter rights of the accused, including the right to make full answer and defence, against the needs of law enforcement, including the obligation to protect confidential informants. The accused's submission also ignored that the content of the right to make full answer and defence was informed by context. The framework for challenging a warrant questioned the validity of an evidence-gathering tool; it was not a trial on the merits with guilt or innocence at stake. The accused further argued that the step six procedure did not permit a meaningful assessment of credibility in situations where police fabricated or deliberately misstated in an affidavit [page192] information obtained from an informant. While it was open to a police officer to deliberately mislead the issuing justice and possible for an affiant to make a mistake in good faith, that potential existed for all witnesses. There was nothing in the record to support the accused's assertion that the affiant fabricated or exaggerated the evidence. At its highest, the revelation about the red car permitted the accused to establish through cross-examination that the affiant was unable to verify the information about the vehicle. The mistake about the apartment's precise location was acknowledged and clarified. Each of the accused and the intervenor, the Criminal Lawyers' Association of Ontario, proposed the establishment of a new step six procedure, but with no Charter breach, there was no constitutional imperative to do so.

The reviewing judge made no error in upholding the issuance of the warrant. The accused argued that the warrant should not have been issued because the information in the ITO was not credible, compelling and corroborated, and as such evidence obtained from the warrant should have been excluded. At trial, the accused sensibly conceded that the tip was compelling based on the specific details the recent drug purchases, plus the fact that the informant knew the accused's nickname, where he lived and his apartment's layout. There was also a basis for concluding that the informant was credible as the affiant was able to provide evidence that the informant had in the past provided extremely accurate information to police. The affiant ought to have included a copy of the informant's criminal record, but the issuing justice and the reviewing judge would have taken into consideration the lack of detail. Police confirmation of the accused's nickname, general description, approximate age and residence constituted meaningful corroboration.

Cited Cases

Legislation:

Canadian Charter of Rights and Freedoms, ss. 7, 8, 24(2)
Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 11
Immigration and Refugee Protection Act, S.C. 2001, c. 27

Case Law:

Counsel

Sonya Shikhman, for appellant. Anil K. Kapoor and Victoria M. Cichalewska, for intervenors the Criminal Lawyers Association. Jennifer Conroy and Alexis Mulvenna, for respondent.

The judgment of the court was delivered by

HOURIGAN J.A. : —

(i) Introduction

[1] Mr. Gero was convicted of two counts of possession of a controlled substance for the purpose of trafficking and one count of possession of the proceeds of crime. His primary submission on appeal is that step six of the framework for challenging a search warrant or wiretap authorization established by the Supreme Court of Canada in R. v. Garofoli, [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115 violates s. 7 of the Canadian Charter of Rights and Freedoms. In the alternative, if the current step six framework is constitutional, he submits that the trial judge erred in finding that the warrant to search his residence could have been issued because, [page194] he argues, the information supporting the Information to Obtain ("ITO") was not credible, corroborated, or compelling. Therefore, the appellant submits that the evidence obtained from the warrant should have been excluded under s. 24(2) of the Charter.

[2] In these reasons, I will briefly review the facts of the case, and the positions of the parties and the intervenor in the appeal, the Criminal Lawyers' Association of Ontario ("CLA"). I will then consider the process mandated by Garofoli and some of the related jurisprudence. Next, I will consider the leading case on the step six procedure from this court, R. v. Crevier, [2015] O.J. No. 5109, 2015 ONCA 619, 330 C.C.C. (3d) 305. This review will be followed by an analysis of the arguments raised by the appellant and the CLA.

[3] For the reasons outlined herein, I would dismiss the appeal. In summary, the appellant's submissions ignore the fact that the Garofoli process is designed to achieve the appropriate balance between the accused's s. 7 rights and police needs to protect confidential informants ("CIs"). The current step six procedure strikes the right balance between these competing policy imperatives. The alternative procedures proposed by the appellant and the CLA would irreparably damage the existing policy balance and would not meaningfully increase the protection against the provision of false information in the Garofoli process.

(ii) Facts

(a) The charges

[4] In March 2015, the Toronto Police Service received a tip from a CI that the CI had recently purchased drugs from the appellant at his apartment. The CI provided this information in exchange for consideration, and the CI was cautioned about criminal charges for providing false information.

[5] The CI identified the appellant by his nickname "Boston" and advised the police about the drugs being sold and his purchases from the appellant. He/she reported that Boston lived at 3847 Lawrence Avenue East in the first apartment on the right after exiting the elevator on the sixth floor, which he/ she identified as either apartment 601 or 602. The CI also described the layout of the apartment.

[6] The police filed an ITO in support of a search warrant to be executed on the appellant's apartment pursuant to s. 11 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Appendix D of the ITO contained details about the information provided by the CI. There was a reference to the fact that the CI had provided information to the police in the past, but there were no details regarding whether that information led to any arrests or seizures. [page195] The fact that the CI had a criminal record was disclosed, but the details of that record were not provided.

[7] According to the ITO, the CI described the appellant as being 35 to 40 years old, six-foot-one to six-foot-two tall, with a larger build, dark brown hair in a crew cut and balding on the top. In the ITO, the police stated that the CI selected the appellant's picture out of a photo lineup. However, at trial, the photos used to form the lineup could not be located, nor could the original notes of the affiant, DC Kellar, on any part of the investigation, including the administration of the lineup.

[8] The police's corroboration efforts were also summarized in the ITO. A Community Inquiry Report, dated May 18, 2013, indicated that the appellant's address was apartment 602 at 3847 Lawrence Avenue East. That report records his date of birth as December 31, 1974, which would have made him 40 on the date of the ITO. The report described the appellant as being five-foot-ten. The police also reviewed an "Intellibook" photo of the appellant, dated January 10, 1998, which gave descriptors of the appellant as being six feet tall, weighing 210 pounds, with dark brown hair and a birthplace of Boston, Massachusetts. The ITO only referenced the appellant's height as indicated in the Intellibook photo. The five-foot-ten reference was not included in the ITO.

[9] The target address's property manager provided information regarding the general layout of the unit consistent with what the CI described and confirmed that the appellant's name was on the lease for apartment 602. The police did not ask to see a copy of the lease. They also attended at the building to ascertain the location of the apartment. The sub-affiant told DC Kellar that apartment 602 was the first door on the right once off the elevator. In fact, it was the second apartment on the right. The ITO incorrectly maintained that apartment 602 was the first door on the right.

[10] On March 30, 2015, the search warrant was executed. During a search of the appellant's apartment, the police found packaging materials, two digital scales, an electrical grinder covered in drug residue, a drug press, 18.2 grams of cocaine, 186.68 grams of Oxycocet pills and Canadian currency in the amount of $80.

(b) Decision below

[11] DC Kellar drafted a one-page document after speaking with the CI, which summarized his notes of his discussions with the CI. DC Kellar inadvertently destroyed the original notes after he transferred departments. This summary contained details that could potentially reveal the CI's identity.

[12] The summary was inadvertently disclosed to defence counsel the morning of the preliminary inquiry. It contained information [page196] that the CI had advised that the appellant drove a red car with a tall antenna that was usually parked in the apartment building's underground parking lot. It also disclosed that the CI's tip was that Mr. Gero lived in apartment 601 or 602. In the redacted ITO provided to the defence, the fact that the CI said that the accused drove a red car was entirely redacted. The ITO also only mentioned apartment 602. At the preliminary hearing, counsel for the appellant cross-examined the affiant DC Kellar regarding the red car and adduced evidence that the police could not corroborate the information regarding the vehicle. DC Kellar also conceded on cross that the police did not investigate apartment 601.

[13] The appellant challenged the validity of the search warrant pursuant to s. 8 of the Charter. The Crown engaged the "step six" procedure to defend the warrant and provided the trial judge with a copy of the un-redacted ITO and a proposed judicial summary, which included information regarding the red car. The appellant brought a motion for disclosure seeking the details of the facts that were presented in the proposed summary. The appellant wanted to know what "personal details" the CI knew about the appellant, precisely what he said about the "drug dealing business", exactly how long the CI claimed to have known the appellant and wanted to learn more about their alleged drug transactions. The Crown objected to this disclosure on the basis that it would compromise the identity of the CI.

[14] On the motion, the Crown did not concede that the red car tip would have remained undisclosed in the judicial summary but for the accidental disclosure. The Crown explained that, while disclosing the red car tip would not be "automatic", it may have nevertheless come out following discussions between DC Kellar and the Crown assigned to the case. The Crown did, however, concede by way of amplification that the police checked the appellant's garage for a red car and could not corroborate its existence. The Crown also conceded that apartment 602 is the second door to the right of the elevator.

[15] The trial judge reviewed the redacted ITO, the unredacted ITO and the Crown summary. She dismissed the disclosure motion and found that the summary, as amplified on review, provided sufficient information to allow the appellant to meaningfully challenge the ITO. In the course of her ruling regarding additional disclosure, the trial judge found that it was not clear whether the information about the red car would have been disclosed in any event:

The Defence points out that had it not been for their accidental discovery of certain information which allowed it to cross-examine on certain points at the preliminary inquiry, the Defence would never have known about this information and lack of corroboration. It is unclear if this information would have been disclosed in any event . . . [page197]

[16] As part of the s. 8 application, counsel cross-examined the affiant with the Crown's consent, and the preliminary inquiry transcripts of the cross-examination of the affiant and sub-affiant were tendered. The validity of the warrant was upheld, and the s. 8 application was dismissed. The trial judge held that minor omissions in the ITO would not have made a difference in whether the warrant was issued. Further, she found that the police were acting in good faith, and there were sufficient grounds to believe that narcotics would be located in the place searched. After the dismissal of the s. 8 application, the appellant admitted the case against him and findings of guilt -- subject to the outcome of the remaining motions -- were registered.

[17] The appellant also challenged the step six procedure's constitutional validity as a violation of s. 7 of the Charter. The trial judge had previously heard a similar constitutional challenge in R. v. J. (N.), [2017] O.J. No. 505, 2017 ONSC 857, 346 C.C.C. (3d) 269 (S.C.J.). The parties agreed that the reasons in J. (N.) adequately responded to the issues raised by the appellant and that the trial judge could simply adopt her prior reasons. She did so.

[18] In J. (N.), the applicant challenged the constitutionality of Garofoli step six on the basis that the procedure does not permit the defence to know the case to be met, offends the open court principle and undermines public confidence in the administration of justice. The Crown relied on Crevier, arguing that this court had already determined that step six complies with s. 7 of the Charter. In the alternative, the Crown argued that step six provides a fair and constitutionally sound process.

[19] The constitutional challenge in J. (N.) was dismissed. The trial judge recognized that [at para. 23] "the Step Six process involves the balancing of a number of competing interests including the right to make full answer and defence, informant privilege, law enforcement and the role of both the Crown and the trial judge" and held that the appropriate balance could be achieved through this process without infringing the accused's Charter rights.

(iii) Positions on Appeal

(a) Appellant's position

[20] The appellant submits that the constitutionality of step six has not been determined by this court or the Supreme Court. He argues that the current step six framework is constitutionally flawed because an accused cannot challenge the truthfulness and accuracy of the affiant swearing the ITO. His position is that it does not provide a mechanism for testing whether the affiant fairly summarized the CI's information when applying for [page198] a warrant. To remedy this constitutional flaw, the appellant proposes a new process, which includes the use of special advocates.

[21] In the alternative, the appellant submits that if the current step six process is found to be constitutionally valid, the trial judge erred in holding that the warrant could issue. His position is that the informant was not credible, the information was not adequately corroborated, and the tip was not compelling.

(b) Intervenor's position

[22] The CLA's position is that special advocates were created by an amendment to the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") in response to the Supreme Court's decision in Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, [2007] S.C.J. No. 9, 2007 SCC 9. It submits that special advocates are sui generis to the IRPA context and should not be imposed in other contexts.

[23] According to the CLA, special counsel should be appointed at the accused's request when an accused sub-facially challenges a warrant. The CLA also offers standard terms of appointment that could be used when amicus or special counsel are appointed.

(c) Crown's position

[24] The Crown submits that the warrant was properly issued and that the step six procedure is constitutionally sound. Further, the Crown argues that the appellant's and intervenor's proposed new Garofoli procedures are impracticable and ineffective.

(iv) Analysis

(a) Background on Garofoli

[25] Garofoli outlines six steps to follow when the Crown objects to disclosing part of an affidavit filed in support of an application for authorization. The same procedure applies to an ITO relied upon to support a search warrant: R. v. Reid (2016), 132 O.R. (3d) 26, [2016] O.J. No. 3554, 2016 ONCA 524, at para. 84, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 432. The procedure, which was not intended to be "exclusive or exhaustive", was articulated by the Supreme Court in Garofoli as follows, at p. 1461 S.C.R.:

[Step] 1: Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.

[Step] 2: The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is [page199] of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.

[Step] 3: After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.

[Step] 4: After the determination has been made in [step 3], the packet material should be provided to the accused.

[Step] 5: If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.

[Step] 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 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.

[26] The Garofoli procedure has particular utility when a search warrant is issued -- as in this case -- primarily based on CI information. CIs enjoy the near-absolute class privilege. No identifying information about the CI may be disclosed to the defence: Reid, at paras. 79-80; and Crevier, at paras. 48-50. The privilege is designed to protect CIs from retaliation, and as a corollary, to encourage CIs to come forward with valuable information: Crevier, at para. 48.

[27] CI privilege creates a dilemma for Crowns defending the warrant on review when CI information forms the grounds for a search warrant. The CI information may have entirely justified the warrant because it meets the three Cs criteria from R. v. Debot, [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118, being credible (from a reliable source), compelling (sufficiently detailed and current, not based on rumour) and corroborated (by independent police investigation). However, due to CI privilege, the Crown may be barred from tendering this evidence because it may reveal the CI's identity.

[28] Garofoli offers two routes for addressing this problem. First, the Crown can opt to redact all the information which could identify the CI. It may then rely on "step five" of Garofoli and justify the issue of the warrant solely on the basis of the information contained in the redacted ITO: R. v. Boussoulas, [2014] O.J. No. 4525, 2014 ONSC 5542, 320 C.R.R. (2d) 64 (S.C.J.), at paras. 16-17, affd [2018] O.J. No. 1163, 2018 ONCA 222](https://www.canlii.org/en/on/onca/doc/2018/2018onca222/2018onca222.html), 407 C.R.R. (2d) 44. The risk with this approach is that a heavily redacted ITO may [page200] not provide reasonable and probable grounds for the issuance of a warrant. As a result, a court may deem the warrant invalid and the searches unlawful based on the redacted ITO, even though the unredacted ITO demonstrates that the warrant was properly issued: Crevier, at para. 46.

[29] Alternatively, the Crown may rely on step six. If the redacting process renders the search warrant unsupportable, the Crown can apply to have the reviewing judge consider as much of the redacted ITO as is necessary to support the search warrant. The court should only accede to this request if the accused receives a judicial summary of the "nature" of the redacted information, and that summary allows the accused to challenge the excised material in argument or by evidence: Crevier, at para. 72. If the redacted material cannot be properly summarized, that material should not be considered: Crevier, at para. 87, Boussoulas (ONSC), at para. 18.

[30] Step six received virtually no attention in the jurisprudence until 2010 when Code J. released his decision in R. v. Learning, [2010] O.J. No. 3092, 2010 ONSC 3816, 258 C.C.C. (3d) 68 (S.C.J.). Justice Code questioned why step six was not relied on more frequently by the Crown. He succinctly summarized the dilemma police face during CI cases and considered step six an innovative solution to this problem. Crowns began to rely on step six with increased frequency. Then, in 2015, this court released its decision in Crevier, which set out a comprehensive framework for step six proceedings.

(b) Crevier

[31] The facts of Crevier mirror most step six cases. The accused challenged the validity of search warrants executed to search her apartment and seize cocaine and a gun found within it. The police used information from two CIs to obtain the warrant. The Crown conceded that the redacted materials were insufficient to support the warrants and asked the trial judge to proceed to step six. The trial judge did so and provided the accused with a judicial summary of the redacted material. Ultimately, he dismissed the accused's s. 8 challenge and upheld the warrants.

[32] The accused appealed on the basis that the trial judge deprived her of her right to make full answer and defence. She argued that she was entitled to launch a sub-facial attack on the excised material, and to do so, she required full details of the excised material. Since she was only provided with a summary, she was unable to test the reliability and credibility of the evidence under review. As a result, she submitted, the court should [page201] not have considered the unredacted affidavit, and the warrants should be set aside.

[33] Justice Rouleau, writing for the court, dismissed the appeal. He concluded that Garofoli's step six procedure, when properly exercised, appropriately balanced the accused's right to make full answer and defence with the needs of law enforcement and the values behind CI privilege. In the course of reaching this conclusion, he offered several valuable insights regarding the step six procedure.

[34] First, Rouleau J.A. stressed that the accused's right to make full answer and defence must be considered in the context of a step six proceeding, which is a pre-trial, threshold evidentiary hearing and not a determination of guilt or innocence: Crevier, at para. 64.

[35] Second, Rouleau J.A. clarified that while an accused is precluded from accessing the redacted portions of the ITO, they are not stopped from launching a facial and sub-facial attack against the ITO. A facial challenge looks to whether the ITO, on its face, was sufficient to support the warrant. All the statements in the ITO are accepted as reliable and accurate. Based on the stated facts in the ITO, the court simply asks whether an authorizing judge could have issued the warrant. The record is not enlarged or amplified by any additional evidence: Crevier, at para. 73.

[36] A sub-facial challenge goes behind the ITO and attacks the reliability of its content. Any errors and inaccuracies revealed by this sub-facial attack must be excised and excluded from consideration. However, the reviewing court may consider additional evidence available to the police investigators when the ITO was sworn to correct good faith errors: Crevier, at para. 74.

[37] Justice Rouleau concluded that the current step six procedure allowed for meaningful sub-facial challenges. Armed with a well-drafted judicial summary, Crown disclosure, the redacted ITO and any cross-examination of the affiant and evidence tendered, an accused could meaningfully challenge the underlying adequacy of the ITO. For example, the accused could "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": Crevier, at para. 77. See also paras. 78-80.

[38] Third, Rouleau J.A provided directions for drafting judicial summaries. In practice, the Crown will prepare the first draft of the judicial summary. When reviewing the summary, the judge should ensure that the summary provides the accused with sufficient information to evaluate whether the preconditions for [page202] issuing the warrant were met. With CIs, this requires information going to the three Debot factors. The court provided a non-exhaustive list of the type of information that could go into judicial summaries: Crevier, at para. 84. If the nature of the redacted information cannot be summarized, the judge should disregard those redacted portions when reviewing the warrant's propriety: Crevier, at para. 87.

[39] Fourth, given the asymmetry of information necessitated by step six, Rouleau J.A. also reasoned that the weight given to undisclosed information in the ITO might be reduced. He analogized this procedure to the admission of testimony not subject to full cross-examination because of a witness's intervening illness or death. In those situations, the lack of testing by cross-examination is taken into account when determining the weight given to otherwise admissible evidence: Crevier, at paras. 88 and 90.

(c) Constitutionality of step six

[40] The appellant submits that the fundamental problem with the current step six procedure is that it deprives the accused of the ability to challenge the truthfulness of the affiant -- a state agent. There is, he argues, nothing that precludes a police officer from engaging in significant exaggeration, recalibration or outright fabrication in recording the information that comes from a CI. He relies heavily on Charkaoui, where the Supreme Court held that IRPA procedures that limited an accused's right to sensitive information during security certificate reviews infringed s. 7 of the Charter.

[41] As I understand it, the appellant's submission boils down to two arguments. First, he submits that the current procedure deprives the accused of the right to make full answer and defence. Second, he advances an argument that the procedure precludes an assessment of the credibility and accuracy of the information in issue because it is impossible to determine whether the affiant has made full, frank and fair disclosure. I will consider these submissions in turn below.

[42] Regarding the right to make full answer and defence, it is worth reiterating that the Garofoli procedure was designed by the Supreme Court to balance the Charter rights of the accused, including the right to make full answer and defence, against the needs of law enforcement, including the obligation to protect CIs: Garofoli, at p. 1458 S.C.R. The appellant's submission in this regard appears to be premised on the basis that the only interests engaged in the Garofoli procedure are those of the accused. Of course, when the analysis is undertaken on this basis, it will [page203] be almost impossible for the Garofoli procedure to pass constitutional muster.

[43] The appellant's submission also ignores that the content of the right to make full answer and defence is informed by context; it is not static. As the Supreme Court stated in R. v. Mills, [1999] 3 S.C.R. 668, [1999] S.C.J. No. 68, at para. 72. "the principles of fundamental justice do not entitle the accused to 'the most favourable procedures that could possibly be imagined'" because "fundamental justice embraces more than the rights of the accused".

[44] Context is important in a Garofoli review. It is an evidentiary admissibility hearing designed to determine whether there was any basis upon which an authorization could have been ordered: R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343, [2005] S.C.J. No. 67, 2005 SCC 66, at para. 30. The Garofoli hearing questions the validity of an evidence-gathering tool; it is not a trial on the merits where guilt or innocence is at stake: Crevier, at para. 64. The right of the accused to make full answer and defence needs to be viewed in the context of an evidentiary hearing that balances the rights of the accused against law enforcement's needs. With this context in mind, a constitutionally appropriate balance is struck when the accused receives a judicial summary outlining the nature of the redactions in the ITO prior to the court relying on those redactions: R. v. Dhesi, [2019] O.J. No. 3493, 2019 ONCA 569, 439 C.R.R. (2d) 348, at para. 11; Crevier, at para. 87.

[45] The unique context of step six distinguishes it from the procedures impugned in Charkaoui. The IRPA procedures at issue in Charkaoui allowed a designated judge to effectively determine the named person's guilt or innocence by deciding whether the security certificate was issued on reasonable grounds. During this process, the judge could consider confidential information not included in the judicial summary: Charkaoui, at para. 55. Those features necessarily shaped the type of procedures required to satisfy the accused's right to make full answer and defence. In the context of step six, however, Charkaoui is of little value "since that case makes it clear that s. 7 does not require a particular type of process but one that is fair in light of the nature of the proceedings and the interests at stake": Reid, at para. 49. As the Supreme Court explained in Charkaoui, at para. 20:

Section 7 of the Charter requires not a particular type of process, but a fair process having regard to the nature of the proceedings and the interests at stake: United States of America v. Ferras, [2006] 2 S.C.R. 77, 2006 SCC 33, at para. 14; R. v. Rodgers, [2006] 1 S.C.R. 554, 2006 SCC 15, at para. 47; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, at pp. 656-57. The procedures required to meet the demands of fundamental justice depend on the context (see Rodgers; R. v. Lyons, [1987] 2 S.C.R. 309, at p. 361; Chiarelli, at [page204] pp. 743-44; Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, 2001 SCC 41, at paras. 20-21). Societal interests may be taken into account in elucidating the applicable principles of fundamental justice: R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, at para. 98.

[46] In addition to the context of a Garofoli review, it is also essential to recognize that the process has built-in safeguards to ensure that the accused has sufficient information to challenge whether the issuing justice could have been satisfied that the statutory conditions for the issuance of the warrant were met. An accused challenging the warrant's validity has more than the judicial summary and redacted ITO in his or her possession. They will also have access to general Crown disclosure, and they may also have access to third party disclosure material and an opportunity to cross-examine the affiant. The accused may also lead evidence: Crevier, at para. 63. Further, the accused also has the benefit of the assistance of the trial judge, who acts as a gatekeeper, balancing the competing interests in an appropriate and fair manner.

[47] In my view, an accused's right to make full answer and defence is not compromised by the existing step six procedure. It properly balances the competing interests of the accused and the state. Indeed, this case demonstrates how the process fairly protects the accused's rights. The appellant's position is that without the unintended disclosure, he would not have known to challenge the truthfulness of the affiant. As the trial judge correctly found it is unclear if this is accurate. In any event, the judicial summary, the fruits of the cross-examination and the amplified facts provided by the Crown demonstrated that the affiant failed to provide details about the CI's criminal record and information about past performance, and that there was a mistake in the ITO regarding the location of the apartment. The defence was also able to establish that the police tried and failed to corroborate the information about the red car. I am satisfied that the appellant was able to meaningfully challenge the ITO.

[48] The second part of the appellant's argument is that the step six procedure does not permit a meaningful assessment of the credibility criteria in Debot. He submits that the question of the compellability of the information as informed by the characteristics of the information provided should not be confused with the question of whether the information in the ITO was actually provided by the CI. The former questions an informant's state of mind and reliability; the latter addresses the affiant's credibility, specifically whether the affiant has provided full, frank and fair disclosure. In other words, he argues that the process offers no [page205] protection in situations where the police fabricate or deliberately misstate in an affidavit the information provided by the CI.

[49] It is well established that an affiant seeking a judicial authorization has to make full, frank and fair disclosure and cannot mislead the issuing justice through the language used or strategic omissions: R. v. Araujo, [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65, 2000 SCC 65, at para. 47. An affiant must also disclose details that are unfavourable to the CI: Crevier, at para. 68. Police officers who swear such affidavits are well aware that they are subject to professional and criminal sanctions if they mislead the court. Further, they know that the evidence they provide in affidavits will be closely scrutinized.

[50] In the case at bar, there is nothing in the record to support the appellant's assertion that the affiant fabricated or exaggerated the evidence. At its highest, the revelation about the red car permitted the appellant to establish through cross-examination that the affiant attempted to verify the information about the vehicle but was unable to do so. The mistake about the apartment's precise location on the sixth floor was acknowledged and clarified by way of amplification. The trial judge had all of this information available to her regarding the problems with the ITO.

[51] I acknowledge that under the current Garofoli procedure, it is open to a police officer to mislead the issuing justice deliberately. It is also possible that, in good faith, an affiant makes an error in the ITO or omits relevant information. However, the potential for fabrication of evidence, misleading the court, or good faith errors exists with all witnesses. It should also be remembered that a warrant is presumptively valid.

[52] Further, as will be discussed below, the new procedures proposed by the appellant and the CLA would not meaningfully reduce the potential for fabricating or misleading evidence filed in support of an authorization.

(d) The proposed new step six process

[53] Based on the foregoing, I conclude that the step six procedure does not breach s. 7 of the Charter. Usually, alternative procedures are only considered where an existing common law rule infringes s. 7 of the Charter: R. v. Swain, [1991] 1 S.C.R. 933, [1991] S.C.J. No. 32, at pp. 978-80 S.C.R. Thus, there is no constitutional imperative requiring the establishment of a new step six procedure. I also note that the appellant never raised the issue of the appointment of special advocates in the court below. Nonetheless, for the sake of completeness and to address the argument that the proposed procedures would be more equitable, [page206] I will consider the new procedures recommended by the appellant and the CLA.

[54] The first part of the appellant's new procedure is to restrict the availability of step six drastically. The appellant submits that it should only be relied on when independent corroboration of a CI's tip is impossible or impractical. Examples of such situations would be limited to cases where independent corroboration cannot be carried out due to the nature of the alleged criminality or pressing time constraints to ensure public safety. In all other circumstances, according to the appellant, the police should corroborate the CI tip through independent investigation and should not be permitted to rely on step six.

[55] The second component of the appellant's new procedure is that when the Crown invokes step six, the accused should be permitted to apply to the trial judge to have a special advocate appointed. The special advocate should have access to the entire unredacted ITO and all relevant documents according to the appellant. After receiving the material, the special advocate may request permission to cross-examine the affiant and the current rules regarding leave to cross-examine the affiant would apply. If the court grants leave to cross-examine, the special advocate will do so in the absence of the accused and their counsel. Afterward, the special advocate and the Crown would make submissions on the areas of the ITO to be excised and/or amplified. Following that, defence counsel and the accused would return and be advised of the new content of the ITO. Defence counsel could then make meaningful submissions on the validity of the warrant.

[56] The CLA proposes a different process. It argues that special counsel should be appointed at the accused's request when an accused sub-facially challenges a warrant. Special counsel would review confidential information to determine the viability of a sub-facial challenge, and if viable, advance a sub-facial challenge in ex parte proceedings (i.e., without the accused). The accused should be permitted to select their appointed counsel.

[57] Regarding amicus, the CLA submits that they may be appointed when the court drafts a judicial summary of the redacted information in the ITO. The decision to appoint an amicus should be discretionary. Amicus should be appointed when factors such as the complexity and volume of the confidential information and the nature of the privilege claims advanced favour their use.

[58] In my view, both new procedures are fundamentally flawed and should not be adopted.

[59] The appellant's proposed procedure is based on the special advocates' procedure under the IRPA, which he suggests should [page207] serve as a template for a new step six procedure. I disagree. Special advocates are typically appointed under the IRPA in security certificate hearings, which are very different proceedings from Garofoli applications: See Canada (Citizenship and Immigration) v. Harkat, [2014] 2 S.C.R. 33, [2014] S.C.J. No. 37, 2014 SCC 37, at paras. 30-37. As noted above, in security certificate hearings, the designated judge effectively determines the named person's guilt or innocence by determining whether the certificate was issued on reasonable grounds. The judge is also permitted to consider confidential information that is not included in the judicial summary: Charkaoui, at para. 55. This is an entirely different context from Garofoli applications, where the guilt or innocence of the accused is not at stake. Further, in a Garofoli application, it is impermissible for the judge to rely on privileged information that cannot be sufficiently summarized: Crevier, at para. 87.

[60] A review of the jurisprudence regarding the appointment of an amicus is also helpful in evaluating the efficacy of the proposed new procedures. Trial judges have the discretion to tailor a procedure in a Garofoli application that best balances trial fairness and the protection of CIs in the circumstances of the individual case. This discretion includes the ability to appoint amicus in particularly complex matters: R. v. Basi, [2009] 3 S.C.R. 389, [2009] S.C.J. No. 52, 2009 SCC 52, at para. 57. However, the appointment of an amicus is the exception and not the rule: R. v. Shivrattan, [2017] O.J. No. 210, 2017 ONCA 23, 346 C.C.C. (3d) 299, at paras. 65-66, leave to appeal to S.C.C. refused [2017] S.C.C.A. No. 93, and R. v. Thompson, [2017] O.J. No. 1221, 2017 ONCA 204, at paras. 23, 25.

[61] As Doherty J.A. observed in Shivrattan, at paras. 67-69, there are good reasons why amicus is not routinely appointed:

Because of the nature of the confidential informant privilege and the very real risk associated with the breach of that privilege, there are many sensitive issues that would have to be resolved before the trial judge could appoint amicus on a "Step Six" procedure. I offer one example.

Experience teaches that the disclosure of apparently innocuous facts, particularly to an accused, can reveal a CI's identity. When editing the unredacted ITO and preparing a summary of those edits, the trial judge has the benefit of submissions from Crown counsel who, in turn, has the benefit of information supplied by the investigating police. The trial judge quite properly relies heavily on the Crown to identify facts which could inadvertently identify the CI.

If amicus were to be appointed, would amicus be allowed to consult with the defence after reading the unredacted ITO and listening to the Crown's comments about proposed redactions? If so, what steps could be taken to ensure that amicus did not inadvertently disclose, through some apparently innocuous comment, a fact that would reveal the identity of the CI to the defence? Amicus would, of course, not have the benefit of the presence of [page208] Crown counsel during his discussions with the defence. This risk may not arise in some situations and there may be ways to avoid the risk while maintaining the value of amicus in other situations. I raise the problem only as an example of the kind of issue which must be considered and resolved before amicus can be appointed.

[62] The concern about the protection of CIs is heightened in narcotics investigations where CIs play a critical role in helping the police gain knowledge of drug trafficking operations, and the potential for retribution is increased: R. v. Scott, [1990] 3 S.C.R. 979, [1990] S.C.J. No. 132, at p. 994 S.C.R.

[63] The mandatory or routine appointment of an amicus shifts the delicate balance between the rights of the accused and the protection of CIs that underlies Garofoli applications in favour of the accused. For this reason, amicus will only be appointed in exceptional cases where the complexity of the circumstances requires the appointment to ensure that the rights of the accused are adequately protected. In other words, amicus is only appointed where it is necessary to restore the proper balance between the competing policy imperatives. To make the appointment of amicus routine would result in the Garofoli process being permanently imbalanced in favour of the accused.

[64] The concerns identified regarding the appointment of amicus would be exacerbated under either of the new procedures proposed in the case at bar. Special counsel or special advocates would be appointed not by the court but by the accused. The appellant suggests that defence counsel would provide the special advocate with all necessary information upfront, such that there would be no need for further communications after the special advocate viewed the unredacted ITO. The CLA proposes that special counsel may continue to communicate with defence counsel even after reviewing the unredacted ITO, provided that counsel maintains privilege. I agree with the Crown's submission that the process proposed by the appellant would offer little benefit to the accused because special counsel could not communicate with the defence and that the CLA proposal would increase the risk of inadvertent disclosure to unacceptable levels.

[65] Finally, the whole purpose of a new procedure under Garofoli is to enable the accused to make full answer and defence by challenging whether the affiant has made full, frank and fair disclosure. Even if an affiant is required to turn over to independent counsel all of the documents that support an affidavit, there is no guarantee that proper disclosure will be made. If an affiant is determined to fabricate or exaggerate evidence, the fact that the state is required to turn over the underlying CI notes is of no moment. Simply put, if a police officer is [page209] prepared to give false evidence in an affidavit, there is no reason to believe that the officer will not similarly fabricate the underlying documentation.

(e) Basis for issuing the warrant

[66] In the alternative, the appellant argues that the warrant should not have been issued because the information in the ITO was not compelling, credible and corroborated.

[67] A judge's role on a Garofoli application is to determine whether there was any basis to grant the authorization. In R. v. Sadikov, [2014] O.J. No. 376, 2014 ONCA 72, 305 C.C.C. (3d) 421, Watt J.A. described the scope of warrant review at para. 84 this way:

The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge: Garofoli, at p. 1452; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 84, [2010] 1 S.C.R. ix; and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search: Morelli, at para. 40. Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could -- not would -- have issued: Morelli, at para. 40; Araujo, at para. 54; and Garofoli, at p. 1452.

[68] The question in the case at bar is whether there was reliable evidence that might reasonably be believed to issue the warrant having regard to the Debot criteria. At trial, the appellant conceded that the tip was compelling. This was a sensible concession. The tip was detailed as the CI recounted two recent drug purchases, including the type of drug purchased, along with the quantity, price and packaging. The CI also knew the appellant by his nickname, where he lived and his apartment's layout.

[69] There was also a basis for concluding that the CI was credible. It would have been preferable for the affiant to detail the past performance of the CI. However, the affiant was able to provide evidence that the CI was known to the police and had in the past provided information that was "extremely accurate". The affiant also should have included a copy of the CI's criminal record instead of merely noting that he had a criminal record but had no outstanding charges. I am confident that both the issuing justice and the reviewing judge would have considered the lack of detail regarding the criminal record. I also note that the CI was cautioned about providing false information to the police. [page210]

[70] Finally, I am satisfied that there was meaningful corroboration of the tip. The police confirmed through their resources the appellant's nickname, general description and approximate age. They were also able to verify through the property manager that the appellant lived in one of the two apartments identified by the CI and that the apartment's physical layout matched the CI's description.

[71] In considering the Debot criteria, the court must look at the totality of the circumstances to determine whether a warrant could have issued. Weakness in one factor may be compensated by strength in the other two: Debot, at p. 1168 S.C.R. In the present case, this was a highly compelling tip, and the police made sufficient efforts to corroborate the information. While there may have been issues regarding the CI's credibility because of omissions in the affidavit, there was a reasonable basis to find him credible. In all the circumstances, the reviewing judge made no error in upholding the issuance of the warrant. Given this conclusion, it is unnecessary to consider the appellant's s. 24(2) argument.

(v) Disposition

[72] I would dismiss the conviction appeal.

[73] In the appellant's notice of appeal, he also appeals, in the alternative, his sentence. I would also dismiss this ground of appeal. The appellant's factum does not address sentencing or identify any errors in the trial judge's sentencing reasons. In any event, I see no basis to interfere with the sentence imposed. The appellant was sentenced to a 90-day intermittent sentence with 24 months' probation, as requested by defence counsel at trial. This is far below the 12 to 15 months of custody sought by the Crown.

Appeal dismissed.

End of Document

R. v. Gero, 2021 ONCA 50

Case Summary

Her Majesty the Queen v. Gero

Case Summary

Cited Cases

Counsel

(i) Introduction

(ii) Facts

(a) The charges

(b) Decision below

(iii) Positions on Appeal

(a) Appellant's position

(b) Intervenor's position

(c) Crown's position

(iv) Analysis

(a) Background on Garofoli

(b) Crevier

(c) Constitutionality of step six

(d) The proposed new step six process

(e) Basis for issuing the warrant

(v) Disposition

Cited By (2 cases)

R. v. Thompson, 2024 ONSC 686

R v. Morias, 2023 ONSC 1299

Judges

Counsel

Parties

Areas of Law