COURT OF APPEAL FOR ONTARIO

DATE: 20220715 DOCKET: C68541

Trotter, Harvison Young and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Brian Glen Kerr Appellant

Counsel: Anil K. Kapoor, for the appellant Joan Barrett, for the respondent

Heard: June 16, 2022

On appeal from the conviction entered on December 8, 2017 by Justice Sean F. Dunphy of the Superior Court of Justice, with reasons at 2017 ONSC 7305.

REASONS FOR DECISION

[1] The appellant was convicted of attempting to obstruct justice and two counts of counselling to commit murder. The central plank of the Crown’s case came from his one-time cell mate, Richard Busch. Before this court, the appellant raises several issues with the trial judge’s findings on a voir dire and in his reasons for conviction. All relate to the evidence of Mr. Busch, and the appellant’s arguments that he was acting as a jailhouse informant.

[2] For the reasons that follow, the appeal is dismissed.

(1) Factual Background

[3] The appellant met Mr. Busch when they shared a range and, for a time, a cell at a detention centre in Toronto. The appellant was in custody for threatening his ex-girlfriend’s life in breach of his parole. Mr. Busch has an unenviable record, showing over 100 convictions spanning from 1981 to 2014. His pattern has been to plead guilty and generally receive sentences of time served in presentence custody.

[4] In April 2014, Mr. Busch contacted police alleging that the appellant was seeking to arrange the murder of his ex-girlfriend. Mr. Busch claimed that the appellant had told him to administer a fatal dose of heroin to his ex-girlfriend after sedating her with a drugged coffee. He was to take a stereo and gold from the appellant’s apartment as payment.

[5] To substantiate his allegations, Mr. Busch provided police with a letter containing the purported victim’s address and phone number, as well as a note asking her to “go” with “two very nice people…because we all feel it better if you were not to show up for court”. Independent investigation confirmed that the letter referred to the victim’s actual address and phone number.

[6] Police officially approved Mr. Busch as an agent in July 2014. He was tasked to arrange a meeting between the appellant and “Stuart”, who Mr. Busch had invented to facilitate discussions of the plan with the appellant. Police swore an information to obtain (“ITO”) days later for a warrant to intercept communications between the appellant and Mr. Busch or an undercover police officer posing as “Stuart”, which they received.

[7] Police then sent a letter of consideration to the office of the Crown acknowledging Mr. Busch’s assistance in the investigation. Mr. Busch then pled guilty to his outstanding charge and was sentenced to time served. The appellant submits that this sentence amounted to a benefit of 3.75 months in custody.

[8] In September, the appellant called the undercover officer at a number provided by Mr. Busch. He told the undercover officer, posing as “Stuart”, to “do the hot coffee thing” and to take the purported victim’s jewelry as “a bonus…if you go to that extent”.

[9] At first instance, the trial judge dismissed the appellant’s application according to R. v. Garofoli, [1990] 2 S.C.R. 1421, to discard the recorded conversation between the appellant and the undercover officer pursuant to ss. 7 and 8 of the Canadian Charter of Rights and Freedoms. He found that, while the Crown should have disclosed the sentencing considerations it gave to Mr. Busch, there was no reason to speculate that Mr. Busch fabricated his allegations to solicit these considerations. He gave detailed reasons in support of his conclusion that the information provided by Mr. Busch was credible, compelling, and corroborated by other evidence. Accordingly, the trial judge found the appellant guilty of counselling to commit murder on the evidence generated by the warrant.

(2) The Intercepted Telephone Call

[10] Before this court, the appellant argues that the warrant should not have issued because it was not based on compelling, credible, and corroborated evidence. He further submits that even if the warrant had been found to be valid, the trial judge should have exercised his residual discretion pursuant to R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, and excluded the conversation on the basis of the ITO affiant’s “gross negligence” in failing to advise the issuing justice of the peace of the consideration proffered for Mr. Busch’s cooperation. For the following reasons, we do not agree.

[11] The appellant’s first argument is that as a jailhouse informant, Mr. Busch’s evidence was subject to a special scrutiny. Despite recognizing that he was required to approach Mr. Busch’s evidence with great caution, the trial judge failed to accord the required degree of heightened scrutiny to the information provided by Mr. Busch as set out in the ITO. In addition, the appellant argues that the failure of the affiant to include the consideration offered to Mr. Busch was “grossly negligent” at the least, and that the ITO should not have been amplified to reflect it. In any event, the appellant submits that the circumstances of Mr. Busch’s allegations – as a jailhouse informant – raised serious concern as to his credibility and that the trial judge erred in underemphasizing this concern, and by failing to find that the warrant was invalid. As a result, the intercepted taped conversation between “Stuart” and the appellant should not have been admitted.

[12] To begin with, we do not accept the argument that there is a distinct category of scrutiny owed to “jailhouse informants” as opposed to other sorts of informants. As Binnie J. (concurring) wrote at para. 129 of R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237: “The trigger for caution is not so much the label ‘jailhouse informant’ as it is the extent to which these underlying sources of potential unreliability are present in a particular case.” In all cases in which the sub-facial validity of a warrant is the subject of a Garofoli application, the application judge must apply the criteria from R. v. Debot, [1989] 2 S.C.R. 1140, and consider whether the information is credible, compelling and corroborated: at p. 168.

[13] Here, the trial judge reviewed each criterion in great detail. In finding that the information was compelling, he reviewed the details set out in the ITO of the plan to kill the appellant’s ex-girlfriend, where she could be found and how payment might be effected, as well as the motive of the accused and the exigencies of timing. He acknowledged that there were some details that remained uncertain but concluded that the seriousness and urgency of the appellant’s alleged intentions were conveyed with detail and clarity.

[14] The trial judge went on to consider whether Mr. Busch’s information was credible. He noted that Mr. Busch had “more convictions to his name than cents in a dollar”, and that his evidence should be approached with caution. He carefully considered the nature of Mr. Busch’s offences, which included many thefts, break and enters and breach of release conditions. He also noted that the sentences and nature of his offences were broadly on display, that he was in custody at the time of his original disclosure to police and that he was only released on the day the ITO was sworn. In short, the issuing justice would have been well aware that a desire for lenient treatment could have played a role in his motivations.

[15] That said, the trial judge rejected the appellant’s characterization of the consideration received by Mr. Busch for his evidence as a “plea deal”. Rather, he found that Mr. Busch did not ask the police to let the Crown know of the assistance he was providing them until some time after he had provided almost all the information which the ITO attributed to him. Moreover, he received only a very limited and qualified commitment from police to consider providing a consideration letter. The trial judge concluded that Mr. Busch’s information as disclosed in the ITO was sufficiently credible to satisfy the reasonable grounds standard, and that the omitted information did not materially detract from its credibility.

[16] Finally, the trial judge considered whether the information provided by Mr. Busch had been sufficiently corroborated. Again, he carefully considered this question and found that the ITO offered significant independent corroboration of Mr. Busch’s information. This included details such as the appellant’s relationship with his ex-girlfriend, her address and her phone number. Most significantly, the letters provided to Mr. Busch, apparently in the appellant’s handwriting, corroborated the evolution of the plan as Mr. Busch had described it. The trial judge also specifically noted that one of the letters was written in large block print which made sense because Mr. Busch has a visual impairment.

[17] The issue on a Garofoli application is whether there were reasonable grounds upon which the search warrant could have issued. While the scrutiny to which the credibility of individual witnesses will certainly vary depending upon their background and circumstances, there are no particular categories, such as jailhouse informants, which attract special rules. The Debot analysis suffices, in the course of which the application judge must consider the three “c’s” to determine whether the warrant could reasonably be granted. The trial judge carefully applied those factors, and we find no basis for interfering with his conclusion that the warrant as amplified could have issued.

(3) The Amplification of the ITO

[18] Second, the appellant says that the warrant should be set aside according to Paryniuk. At para. 69, Paryniuk preserves a narrow discretion for judges to set aside warrants “where police conduct has subverted the pre-authorization process through”, among other grounds, non-disclosure. Here, the appellant argues that the failure to include the consideration Mr. Busch received for his participation in the ITO was so “grossly negligent” that the warrant should be set aside.

[19] With respect, we disagree. First, as discussed above, the trial judge approached Mr. Busch’s credibility cautiously and thoroughly. In doing so, he agreed that the ITO affiant should have disclosed the sentencing considerations extended to Mr. Busch, and considered these considerations as part of the requisite credibility analysis pursuant to Debot. He remarked on the extent of Mr. Busch’s criminal record and his reduced sentence, but also emphasized the risk a career criminal turned police agent would face on the “reasonably high likelihood” that he would return to custody. We see no error on his part on this point.

[20] We agree that the ITO affiant should have included the information relating to Mr. Busch’s sentencing considerations. However, the standard to set aside an otherwise valid warrant is high, and meeting it may require conduct amounting to an abuse of process: Paryniuk, at para. 70. The trial judge heard the affiant’s testimony and cross-examination and found that this omission was inadvertent rather than deliberate. His finding is entitled to deference, and we see no reason to intervene.

[21] Consequently, the amplified ITO does not undermine the reasonable grounds on which the warrant could have issued, much less subvert the pre‑authorization process through something akin to an abuse of process. Accordingly, the trial judge did not err in accepting the recorded phone call between the appellant and the undercover officer.

[22] In any event, the undercover officer could have testified to his conversation with the appellant, and refreshed his memory using contemporaneous notes, even if the recorded conversation was inadmissible. As Binnie J. states, at para. 45 of R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535, in these circumstances, it is the officer’s “recollection, not the stimulus [that would rekindle his recollection] that becomes evidence.”

[23] In this case, the undercover officer recorded detailed notes of his conversation with the appellant shortly after the phone call. His testimony at trial confirmed many material aspects of Mr. Busch’s allegations, including that the appellant wanted “Stuart” to “[d]o the hot coffee thing.” Accordingly, the evidence was sufficient to ground the appellant’s conviction, regardless of whether the tapes were admitted.

(4) The Conviction Appeal

[24] Finally, we see no error in the trial judge’s reasons for conviction. The phone call between the appellant and the undercover agent corroborated several material aspects of Mr. Busch’s allegations. In particular, it alluded to the appellant’s plan to kill his ex-girlfriend by administering a fatal dose of drugs, and to using her belongings to pay the purported killers. It was reasonable for the trial judge to conclude that this evidence pushed the plot beyond simple obstruction, into the realm of counselling to commit murder.

Disposition

[25] The appeal against conviction is dismissed. Leave to appeal against sentence is allowed, but the appeal is dismissed.

“Gary Trotter J.A.”

“A. Harvison Young J.A.”

“J.A. Thorburn J.A.”