RULING

Ontario Court of Justice (Toronto Region)

Between: Her Majesty the Queen -and- Daniel Martin

Justice: B. Knazan Date: April 17, 2014

Counsel:

• Niall Gilks, Counsel for the Respondent
• Daniel Moore, Counsel for Applicant

Introduction

This is an interim ruling within an application by Mr. Martin to exclude evidence during his trial for possession of narcotics for the purpose of trafficking. The ruling arises part way through the procedure that the Supreme Court of Canada established in R. v. Garofoli, [1990] 2 SCR 1421 and involves an application by Crown counsel put in the form of a question. The answer will, in this case at least, define the scope of the judicial summary of an edited information-to-obtain – the sixth step in the Supreme Court's Garofoli procedure.

Procedural History Giving Rise to the Question Posed

At the outset of the trial Mr. Martin applied under s. 24(2) of the Charter to exclude the evidence that the police found when they executed a search warrant at his apartment. He also applied to cross-examine the affiant of the information-to-obtain. As is usual, on consent, the Crown arranged for the unsealing of the search warrant and the information-to-obtain on which it was based.

As the case involves a confidential informant, Crown counsel edited the information-to-obtain, then disclosed it to Mr. Martin.

As soon as the trial began, Crown counsel advised the Court that he was not opposing the application for leave to cross-examine on the information-to-obtain, the necessity for which the court also established in Garofoli and upheld in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343.

The Garofoli Procedure

In order to understand what followed, I must first set out the process that the Supreme Court approved in Garofoli:

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.

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 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.

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.

4. After the determination has been made in (3), the packet material should be provided to the accused.

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

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.

Application to This Case

In this case, Crown counsel, after providing the edited copy of the information-to-obtain, conceded at the outset that no matter what occurred in the first five steps, the required editing would render the warrant insupportable, and proposed that the Court proceed directly to step six. Mr. Martin did not oppose this method of proceeding.

Crown counsel then provided the unedited information-to-obtain to the Court along with a proposed summary. After reviewing both, I provided my views to Crown counsel in a closed hearing from which, with the agreement of Mr. Martin, Mr. Martin and counsel were absent. Up until this point this Court, apart from the exclusion of the defence, followed the procedure described by Justice Kelly in R. v. Farrugia, 2012 ONCJ 830.

After reviewing the proposed summary, I proposed changes to Crown counsel's summary, thus creating a draft judicial summary. I also was of the opinion that parts of the summary referring to four edited portions were not sufficient because those parts of the summary were so general as to not amount to any summary at all. I could not be satisfied that the accused was sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.

However, I did not propose my own summary of those four parts because I am further of the opinion that any summary that would satisfy me that the accused was sufficiently aware of the excised material to challenge it in argument or by evidence, would risk disclosing the identity of the confidential informer on whom the affiant relied.

Crown counsel then submitted that he was content that the unsummarizeable parts of the information-to-obtain be removed from consideration when I consider whether the justice had grounds to issue the warrant. He calls this a line by line application of the sixth step in the Garofoli procedure and urges this approach upon the Court, so that the prosecution is not put in the position of having to concede the search is unreasonable because it is unable to provide any different edited version without disclosing the identity of the confidential informant.

Mr. Martin, for his part, characterizes this as a piece-meal approach to the sixth step in Garofoli and says that it is not authorized by the Supreme Court decision and would not comply with the requirement that the court be satisfied that "the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence".

The Question Posed to the Court

Whatever one chooses to call the prosecution's proposal the question posed in this ruling is this:

Does the sixth step in R. v. Garofoli allow the prosecution to choose to not rely on the excised parts of an information-to-obtain that cannot be summarized without disclosing the identity of a confidential informant and continue to try and support the warrant on the basis of the remaining contents that have been either disclosed or are the subject of a judicial summary?

Answer

Both the prosecution and the defence agree that there is no precedent for what Crown counsel seeks as well as no authority preventing it. In those cases where the Crown was not satisfied with the Court's judicial summary, it has chosen not to rely on the edited information. Justice Korrick's ruling in R. v. Ivy, 2013 ONSC 4581, [2013] O.J. No. 3647 is an example: paragraph 9. What Justice Greene describes happening in R. v. Halley, [2012] O.J. No. 1021, appears similar.

The Starting Point

The starting point in trying to answer the question is Justice Sopinka's introduction to the sixth Garofoli step. At paragraph 79, he stated:

The following outline is the procedure, which in my view, should be followed. It is not intended to be exclusive or exhaustive.

Therefore the words used by the Supreme Court in step six are neither exclusive nor exhaustive. This court is at least entitled to consider altering the procedure from an all or nothing situation where either all of the information can be summarized or the Crown must concede a violation of the right to be secure against unreasonable search and seizure, to a process, if there is one, that better balances the competing values that Garofoli and the jurisprudence following promote. This consideration must, I emphasize, also give effect to the words that the Supreme Court used in outlining step six.

Values to be Promoted and Balanced

What are the values that the procedure, and in particular step six, seeks to promote and balance? In my opinion it is obvious that they are:

1. To have the limited review that a reviewing judge is permitted to conduct, proceed on the basis of the same information that was before the issuing judge or justice insofar as that is possible.

2. To completely protect the confidential informer privilege. To state the obvious, every reference to disclosing identity includes anything which could indirectly disclose or lead to discovery of the confidential informant's identity.

3. To enable an accused person to fairly and fully challenge any search as unreasonable.

Justice Jurianz discussed the first principle in R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, where he wrote:

Code J., in thoughtful reasons in R. v. Learning, [2010] O.J. No. 3092, 2010 ONSC 3816, 258 C.C.C. (3d) 68 (S.C.J.), at para. 107, remarked that it is unfortunate that the procedure in "step six" in R. v. Garofoli, [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115 is the only legal mechanism available to resolve the dilemma created by the competing demands of the Crown's obligation to provide reasonable and probable grounds for a search and its obligation to protect the identity of confidential informants. Yet, he observed, the mechanism "is simply not being tried or tested". [page 760]

The procedure based on "step six" in Garofoli permits the Crown to apply to have the reviewing judge consider as much of the excised material as is necessary to support the search warrant, which the trial judge may do upon providing the accused with "a judicial summary of the excised material" to attempt to ensure "the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence": Garofoli, at p. 1461 S.C.R.

It is difficult to understand why the Crown does not request the court to employ "step six" of Garofoli more frequently. There may be many cases in which the Crown considers the redacted information to be inconsequential, but there must be cases in which the information is significant. In such cases, there can be no advantage to the Crown in defending the issuance of a warrant on less than all the information that supports it. It may be that the Crown believes that any summary of the redacted information whatsoever will risk betraying the confidential informant's identity. Judges too may be reluctant to prepare judicial summaries of the excised material lest they unwittingly betray the identity of the informant.

Perhaps because of such concerns, the Supreme Court of Canada crafted the last element of the "step six" procedure. Where the Crown is dissatisfied with the judicial summary the judge proposes to provide to the accused, it can decline to rely on the excised information to support the search warrant.

Strictly, Justice Jurianz's comments with which Associate Chief Justice O'Connor concurred, were obiter because Rocha did not deal with step six. But, this passage demonstrates clearly that it is desirable that the reviewing judge have access to the information that was before the issuing judge. It also addresses the second concern that must be balanced, the given that the confidential informant's identity cannot be disclosed.

Protection of the Accused's Right to Challenge

The third concern that must be addressed is the protection of the accused's right to challenge the warrant or authorization set out in step six. If I am to adopt the novel approach proposed by Crown counsel I must still follow Garofoli, that is, I must be satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.

This is the strongest objection to following the procedure of summarizing what has been redacted and allowing the Crown to rely on that while also allowing the Crown to decline to rely on excised material that cannot be summarized without disclosing the informer's identity and it is a substantive objection. Mr. Martin submits that he at least needs a summary of everything; he will already be at a disadvantage working with an edited version of the information-to-obtain and my judicial summary of that which can be summarized has been arrived at after my hearing Crown counsel in his absence.

The Crown's declining to rely on the excised information that cannot be summarized goes far in addressing this concern though not all the way. Goes far because by not relying on those portions that cannot be summarized, the Crown is agreeing to try to support the issuing of the search warrant on less information than the justice had, making its own task more difficult and permitting the accused to entirely succeed in having me disregard some information that the justice had.

But not all the way, because as defence counsel rightly argues, I am not him, I do not have the defence brief and I do not know what creative arguments he might make with respect to the excised material in an attempt to show, for example, that the confidential informant was unreliable or that the affiant was not fully forthcoming to the justice. He cites as an example Garofoli itself where the authorization stated Garofoli was in one place and the defence was in a position to prove on the hearing that he was in another place.

This submission raises real concerns. Justice Green anticipated them in R. v. Herdsman, 2012 ONCJ 739, [2012] O.J. No. 5598 when dealing with a Crown application under step six, though not with the question I am attempting to answer, when he wrote, with respect to practical questions about the procedure that Justice Jurianz raised in Rocha:

As to "practical questions about the procedure", I add only that "step 6" provides a less than perfect resolution of the conflicting interests where, as here, a trial judge crafting judicial summaries can only speculate about the challenges an applicant may contemplate bringing to the veracity or significance or the "facts" set out in a redacted ITO or those that may emerge following the summarization process. (paragraph 8)

Justice Green went on to determine the application based on the original Information-to-obtain but with the full text of the redactions for which the defence has only judicial summaries. He explained:

Simplified, only Crown counsel and I have access to the full text of the unedited, original ITO. As it is this document less any appropriate factual amendments and excisions, upon which I am to determine the adequacy of the grounds to issue the constitutionally impugned search warrant. (See R. v. Sahid, 2011 ONSC 979, [2011] O.J. No. 653 (S.C), at paras. 28-32) (paragraph 10)

Although it is not clear what the remaining excisions were after the step 6 judicial summary had been provided, it appears that the Herdsman hearing may have proceeded on the basis of a combined judicial summary and portions of the information to obtain on which the Crown was not relying, that is very close to what the Crown is requesting here.

In a passage relevant to defence counsel's main argument here, Justice Green went on to note that:

"defence counsel several times expressed frustration with the review process and protested his inability to mount an informed challenge to the contents of some seemingly critical paragraphs in the ITO upon which the Crown appeared to rely (if, necessarily, by way of cryptic allusion only) because of his lack of access to other than succinct judicial summaries of those portions. (paragraph 12)

In this case, Crown counsel is attempting to take step six a step further. He is "trying and testing the procedure" to use Justice Code's words in Learning that Justice Jurianz approved in Rocha above. He is declining to rely on the portions that I cannot summarize without risking disclosure of the identity of the confidential informant. That removes part of the problem in Herdsman because the Crown will not rely on those portions which the accused cannot challenge.

As for the strongest part of Mr. Martin's submission, that he cannot show that the information is wrong if he has neither the information nor a meaningful summary, the test in step six remains my being satisfied that he the accused is sufficiently aware of the excised material and I emphasize "sufficiently". Although the argument has proceeded on the basis that because the Crown is not relying on the unsummarizable portions, they will not appear in the judicial summary, there will be a reference to them as incapable of being summarized without disclosing the informant's identity. The document as a whole will leave Mr. Martin sufficiently aware of the excised material, its nature if not its content. He knows that there is material coming from the confidential informant that the justice relied on, but that the case will be considered on the basis that the justice could not have. I interpret the word "sufficiently" as Justice Sopinka used it in step six in the spirit of Justice La Forest's general observation about fundamental justice in s. 7 of the Charter in R. v. Lyons, [1987] 2 S.C.R. 309: paragraph 88.

s. 7 of the Charter entitles the appellant to a fair hearing; it does not entitle him to the most favourable procedures that could be imagined.

Stage of Proceedings

The stage of the proceedings is also relevant and informs my decision to interpret Garofoli as allowing what Crown counsel is requesting. We are not at this point trying the merits but rather litigating a motion to exclude evidence.

In R. v. Pires; R. v. Lising, supra the Court stressed this difference in the context of upholding Garofoli and the requirement for leave to cross-examine the affiant and drew a distinction between an accused's absolute right to cross-examine in the trial proper when the elements of the offence and innocence are in play and on a motion to exclude evidence by showing that a warrant or authorization should not have been issued.

I see a parallel here. The confidentiality of the informer is established and inviolable except when innocence is at stake. When that confidentiality prevents a summary of part of the information-to-obtain and the Crown agrees not to rely on those parts, then the motion to exclude can proceed fairly. It is not as if the Crown is being permitted to say that they will not rely on certain information that might be helpful to the accused if he knew it at trial.

Because the Crown will not rely on the material that cannot be summarized and because the accused will be aware that it cannot be summarized because any summary could risk revealing the identity of the confidential informant, I have concluded that Mr. Martin will be sufficiently aware of the excised material to challenge it in argument or by evidence. Added to this is my responsibility to protect the interests of the accused given that he is not being shown the material on which the Crown is not relying and he was not present when I heard Crown counsel on the judicial summary. Although I cannot raise all of the arguments that his counsel might, I can supervise the application so as to ensure he is not misled in any way as to what else was before the justice. If as the application progresses, there is any suggestion of bad faith, or false information in the portions on which Crown counsel declines to rely, I can further adjust the process to eliminate or minimize any disadvantage to the defendant. As Justice Jurianz and Justice Code recognized, step six will not be useful if it is not tried.

Summary

(1) step six is neither exhaustive nor exclusive,

(2) there is no authority that prevents allowing the Crown to decline to rely on part of the excised material and try to justify the issuing of the warrant on the basis of my judicial summary,

(3) there is an advantage to the accused in the Crown not relying on the excised material,

(4) it cannot be summarized without risking the prohibited disclosure of the confidential informer's identity,

(5) I can continue supervising the process to address any unfairness to the accused because he is unable to show that information he does not know was false but before the justice.

Conclusion

The answer to the question is yes; the Crown may proceed on a judicial summary of those edited parts that can be summarized and decline to rely on these edited portions of the information to obtain that cannot be summarized without risking disclosure of the confidential informant's identity.

Brent Knazan April 17, 2014