Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240418 DOCKET: COA-23-CR-0519

Fairburn A.C.J.O., Rouleau and Trotter JJ.A.

BETWEEN

His Majesty the King Respondent

and

Joshua Shirley Appellant

Counsel: Joshua Shirley, acting in person Dan Stein, appearing as duty counsel Nicholas Cooper, for the respondent

Heard: February 6, 2024

On appeal from the conviction entered by Justice Russell Wood of the Ontario Court of Justice, dated February 3, 2023.

Reasons for Decision

Overview

[1] This is an appeal from conviction for three counts of possession of a Schedule I substance for the purpose of trafficking, and one count of possession of property obtained by crime.

[2] The Crown’s case rested entirely on the seizures made at the time of the appellant’s arrest. The trial judge concluded that these seizures constituted breaches of s. 8 of the Charter, but dismissed the appellant’s request to have the evidence excluded under s. 24(2).

[3] This appeal turns on whether the trial judge erred in his s. 24(2) analysis. We conclude that he did not.

Background Facts

[4] The police received information from two separate confidential informants that a person using a specified phone number was trafficking in drugs in the Peterborough area.

[5] An Ontario Provincial Police officer prepared an Information to Obtain (“ITO”) for a tracking warrant pursuant to s. 492.1(2) of the Criminal Code, R.S.C., 1985, c. C-56 and a transmission data recorder warrant pursuant to s. 492.2(1). The ITO described the “involved person” as an “unknown male” who was believed to be involved in trafficking in drugs and using a specified telephone number “to facilitate the dealing.”

[6] The affiant set out the fact that two confidential informants had provided their handlers with information about what appeared to be the same “unknown male” who was selling Schedule I drugs in the Peterborough area. The informants both provided to their police handlers the same phone number used by the unknown male. To protect the identity of the confidential informants, the affiant included all relevant information about the informants in Appendix “B” to the ITO. That appendix provided information that was said to support the credible, compelling, and corroborated nature of the information they had provided.

[7] The ITO also addressed why it was said that tracking the telephone corresponding to the number both informants had provided, as well as obtaining data pertaining to the use of that telephone, would assist in the drug investigation. Among other things, these investigative measures would assist in determining the identity of the drug trafficker, as well as his whereabouts.

[8] Once the warrants were obtained, a surveillance team was able to track the phone over a number of days and ultimately the police were able to determine the appellant’s identity and confirm his activities as a drug trafficker.

[9] The appellant was eventually arrested while driving a vehicle. Fentanyl, cocaine, crystal methamphetamine, drug paraphernalia, and cash were located when the vehicle was searched incident to arrest. The phone corresponding to the number that the confidential informants had provided was also located in the vehicle.

The Charter Application

[10] As was his obligation, the trial Crown redacted the ITO to protect the identity of the confidential informants. This resulted in the redaction of most of Appendix B. This was no surprise, as the appendix had made clear that, should disclosure be required one day, the appendix would not be disclosed because it contained “information about these informants that would tend to reveal the identity of [them]”. In its place, the trial Crown provided a “Crown Summary of Appendix B”. That summary included reference to the following types of information:

• Sources #1 and #2 were not state agents, but known confidential informants with separate police handlers.
• Both sources had provided information to the police on numerous prior occasions, which had “proven reliable”, including having led to the “seizure of illegal items” that were specified in the confidential appendix.
• Source #1 had previously given information about drug trafficking that led to certain delineated police actions.
• The informants had provided the source of their information about the unknown male.
• The appendix referred to whether the informants had or did not have criminal records and outstanding charges.
• Both sources were providing information for consideration.

[11] The appellant brought a s. 8 Charter application, claiming that the redacted ITO contained insufficient grounds to support the issuance of the warrants. The appellant argued that the issuing justice could not have issued the warrant given the insufficiency of the grounds as reflected in the redacted Information: R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452.

[12] The parties agreed that, without the tracking and transmission data recorder warrants, the appellant’s identity would not have been discovered. Had his identity not been discovered, there would not have been an arrest. And if there had not been an arrest, there would have been no search incident to arrest. Accordingly, the appellant argued that the evidence seized at the point of arrest was obtained in a manner that breached the appellant’s s. 8 Charter rights and was subject to exclusion under s. 24(2).

[13] Whether there existed reasonable grounds to believe that the tracking warrant would assist in the investigation (s. 492.1(1)) or reasonable grounds to suspect that the transmission data would assist in the investigation (s. 492.2(1)), relied almost wholly upon the strength of the information provided by the confidential informants. This in turn required an assessment as to whether the informants were credible and whether the information they provided was compelling and corroborated: R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 28.

[14] This left the Crown with the option of trying to justify the issuance of the warrants based upon the redacted ITO, often referred to as step five of Garofoli, or proceeding under step six and asking the trial judge to review unredacted information: Garofoli, at pp. 1460-61.

[15] The trial Crown was clearly not inclined to proceed under step six. Instead, the trial Crown was prepared to proceed under step five and have the court assess the adequacy of the grounds for issuance on the basis of the redacted ITO, as supplemented by the Crown Summary of Appendix B. The appellant was prepared to accept that the summary was accurate and could be used for this purpose.

[16] At one point in the trial Crown’s oral submissions on the compelling and corroborated nature of the confidential source information, the trial judge asked if he would necessarily be speculating about those issues. The trial Crown responded that the defence had conceded the accuracy of the summary, but that if the trial judge had any concerns over its accuracy, he could open the sealed packet and verify the accuracy of the summaries.

[17] At no point did the trial judge open the sealed packet. Instead, he concluded in his ruling that he could not give the police “credit” for what “may have been provided to the issuing justice.” He expressed dissatisfaction with the trial Crown’s decision not to proceed to a full-blown step six procedure and, ultimately, concluded that a s. 8 breach had been made out because the redacted ITO contained insufficient grounds to support the issuance of the warrants.

[18] The trial judge then turned to s. 24(2). He found that this case was very similar to this court’s decision in R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, where the trial Crown had proceeded only under step 5 and the grounds in the redacted ITO were insufficient to survive s. 8 review. The trial judge seemed to think that Blake stood for the proposition that “it would be very difficult” to succeed in excluding evidence under s. 24(2) in a case like this, where the Crown had only attempted to defend a s. 8 challenge on the basis of step five.

[19] At the same time, the trial judge noted that since Blake, there have been numerous authorities that reinforce what was said in Garofoli, that where necessary, the Crown can proceed under step six and ask the reviewing court to look behind the redactions to determine whether the issuing justice “could” have issued the warrant.

[20] The trial judge seemed to suggest some conflict between Blake and those newer authorities:

In my view, the debate between Blake and R. v. Learning, 2010 ONSC 3816 remains largely unresolved. Blake remains binding authority. Despite the encouragement by courts for the Crown to resort to step six to uphold the work of law enforcement, I see no mechanism to force them to do so.

[21] To the trial judge, the only way to “reconcile” the authorities was to do a case-specific analysis by applying the criteria from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. He did just that and, ultimately concluded that the admission of the evidence would not bring the administration of justice into disrepute.

Analysis

[22] The appellant argues that the trial judge erred by analogizing this case to Blake. Specifically, the appellant points to the fact that in Blake, Doherty J.A. concluded that even though the Crown proceeded under step five, the accused did nothing to put a full version of facts before the court. This augured against a successful s. 24(2) application, because it could not be said that the police had acted in bad faith. He said, at para. 17:

In summary, the Crown was content to have the reasonableness of the search determined exclusively on the basis of the redacted information. The defence did not challenge the validity of the confidential informant claims, seek access to the identity of those informants nor challenge the editing done by the Crown to protect the identity of those informants. In my view, these positions taken on the voir dire have significance in the s. 24(2) analysis.

[23] The appellant argues that the trial judge erred in this case by analogizing to Blake, because in this case the defence did not merely acquiesce in what was tantamount to a Crown concession of a s. 8 breach. Instead, the appellant proactively consented to the Crown relying upon the summary of information contained in the redacted appendix. He says that this defence approach distinguishes this case from Blake because here the defence did all that they could to have the relevant information properly placed before the court.

[24] The appellant says that he finds support for his position in this court’s decision in Herta. He maintains that Herta stands for the proposition that if the Crown elects to defend an ITO under step five of Garofoli alone, and fails on the Garofoli standard of review, then the first prong of Grant, involving the seriousness of the state conduct, cannot resolve in a finding of good faith. The appellant argues that in these circumstances, the seriousness of the state conduct will fall in the middle of the seriousness spectrum.

[25] We do not read Herta in this way. While the trial Crown in Herta also failed to defend a heavily redacted ITO on the basis of step six of Garofoli, the s. 24(2) holding did not turn on that litigation choice. Rather, the s. 24(2) holding in Herta, and more specifically the holding on the seriousness of the police conduct, turned on what was specifically described as “sloppy” and “careless” drafting of the ITO. It had nothing to do with the Crown’s litigation choices.

[26] We emphasize that it is entirely for the Crown to decide how to proceed on a Garofoli review. There will be times where the Crown will quite reasonably, with a view to efficiency and maximizing protection for confidential informants, decide not to proceed under step six. This was one of those cases. Here, the Crown did not simply “mail in” a s. 8 breach. Rather, the Crown took active steps to produce a Crown summary that, at a minimum, described features of the confidential appendix that would have assuaged the issuing justice’s concerns over the strength of the information provided by the informants. The Crown obtained the defence consent to proceed on the basis of that summary, along with the redacted information. The defence was prepared to agree with its accuracy. And the trial judge was invited to look behind the redactions if he had any concern over the accuracy of the summary.

[27] If anything, the Crown’s actions demonstrated a carefully thought-out, responsible litigation plan that was designed to efficiently respond to the s. 8 application, all the while protecting the informants. The fact that the trial judge was not prepared to consider the summary on the s. 8 application did not mean that the police should have been found to have acted in bad faith under s. 24(2). Nor did it mean that they could not have been found to have acted in good faith. While it is true that the appellant cooperated on the s. 8 motion, such that the summary was placed before the reviewing judge, that summary demonstrated the care with which the affiant had approached his responsibilities, by providing information that addressed the strength of the information provided by the informants.

[28] In the end, the trial judge knew that he had to conduct a “case specific” analysis. He did just that and concluded that the s. 24(2) application should be dismissed. We see no reason to interfere in that decision.

Conclusion

[29] The appeal is dismissed.

“Fairburn A.C.J.O.” “Paul Rouleau J.A.” “G.T. Trotter J.A.”