Court File and Parties

Court File No.: Toronto Date: 2014-12-11 Ontario Court of Justice

Between: Her Majesty the Queen — and — Jeffery Mowatt

Before: Justice Mara Greene

Reasons for Judgment released: December 11, 2014

Counsel:

• K. Benzakein, for the Crown
• M. Leitold, for Jeffery Mowatt

Introduction

[1] Mr. Mowatt is charged with a number of drug related offences in relation to narcotics found in what is alleged to be his residence. The narcotics were found while the police were executing a search warrant at this residence. Prior to trial, Mr. Mowatt filed materials arguing that there were no grounds to issue the warrant and as such Mr. Mowatt's rights as guaranteed by section 8 of the Charter were breached. The information sworn in support of the warrant is heavily redacted as much of the information in support of the warrant comes from a confidential source whose identity needs to be protected. The Crown, in response to the application has asked the court to rely on step six from R. v. Garafoli, [1990] S.C.J. No. 115. Defence counsel opposes this request. The section 8 argument has been adjourned so as to allow the court to deal with the step six issue.

Background

[2] Defence counsel filed a notice of application seeking to cross-examine the affiant. He also filed a notice of application arguing that Mr. Mowatt's rights, as guaranteed by section 8 of the Charter were violated because there were insufficient grounds to issue the warrant. On the first date of trial, the Crown and defence counsel advised the court that the Crown was seeking to have the court rely on the un-redacted information to obtain pursuant to step six from R. v. Garafoli, supra. The information to obtain (hereinafter ITO) that was disclosed to defence counsel is heavily redacted in order to protect the identity of the confidential source. The vast majority of the information relied upon for the warrant came from the confidential source.

[3] The Crown helpfully prepared a summary of the redacted portions of the ITO. In many cases this is the starting point for a judicial summary. It is often very helpful for the Crown to start this process as it gives the court some indication as to what information may serve to identify the informant. In the vast majority of cases where the Crown has started the summary process, the judge makes whatever changes are necessary to the summary to ensure that it provides sufficient detail about the nature of the excised information so that defence counsel can still argue about the validity of the warrant. In the case at bar, however, Crown counsel candidly advised the court that even though the step six process anticipates a judicial summary, she had drafted a summary of her own and that it was her position that any additional information would identify the informant. Despite this assertion, I attempted to draft a summary that was slightly more informative. This summary was rejected by the Crown as it included information that would tend to identify the CI. After receiving the court's summary of the redacted information, the Crown did, however, provide a new summary of her own. She also disclosed some additional information from the information to obtain.

[4] It was defence counsel's position that the summary provided along with the additional disclosure did not provide him with sufficient information to make proper argument on the validity of the warrant. As a result, I was asked to determine whether this was an appropriate case to resort to step six.

[5] Prior to determining whether the judicial summary (which is really a Crown summary in the case at bar) is sufficient, I decided to first allow defence counsel to cross-examine the affiant. In my view, the determination of the sufficiency of the summary should only be considered once the court has the fullest record possible about the contents of the information to obtain. Very little cross-examination of the affiant was permitted, however, in light of the informer privilege issue.

[6] The section 8 issue has been put on hold to await a determination of whether the step six process from R. v. Garafoli, supra, can be utilized in this case.

Relevant Legal Principles

[7] The step six process being considered in this case originated in R. v. Garafoli, supra. The step six process was described in Garafoli as follows:

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.

[8] Since Garafoli, many courts have recognized the true value of the step six process. As Justice Code elegantly put it in R. v. Learning, 2010 ONSC 3816, [2010] O.J. No. 3092 (SCJ) at paragraph 100:

…The conundrum in which the police and the Crown find themselves, in cases like the one at bar, is that Debot and s.9 require disclosure of the informer's means of knowledge and disclosure of as much detail as possible, as well of the informer's means of knowledge and disclosure of as much detail as possible, as well as any past history of reliability. The more that these matters are disclosed, the more likely it is that the tip will rise to the statutory and constitutional standard of reasonable and probable grounds. And yet the more these matters are disclosed, the more likely it is that the details and the means of knowledge will implicitly identify the informer…

[9] In R. v. Brown, 2012 ONSC 6210 (SCJ), O'Marra J. made similar comments, he stated:

The ITO has to be heavily edited in order to fulfill their obligation to maintain the informer privilege, yet in the process of doing so, redact the very information before the issuing justice that supported the statutory requirement of reasonable and probable grounds – the informer's means of knowledge. In my view, it would be an absurd proposition for the Court not to take into account the specific information that was before the issuing justice and that the applicant has been provided by way of a general characterization in the summary, which I approved on review.

In this instance, the Crown is asking the Court to consider only a portion of the redacted information. Where a warrant cannot be supported on the basis of the redacted information to obtain, it would lead to the perverse result of finding a charter breach and the warrant unlawful even though there may have been ample reasonable grounds provided to the issuing justice. I am prepared to accede to the Crown's request to review the specific redacted information to assess whether the Debot criteria have been met.

[10] In light of this, courts have made extensive efforts in the last few years to find some balance that allows the Crown to benefit from good and proper police work while also protecting the identity of confidential sources yet still enabling the defendant to make full answer and defence.

[11] While courts should make every effort to resort to a judicial summary and thereby allow the Crown to rely on the original, unedited information to obtain, this process may only be engaged where the judicial summary contains sufficient information so as to make the defendant sufficiently aware of the excised material to challenge it in argument or by evidence (see R. v. Garafoli, supra, and R. v. Rocha, 2012 ONCA 707, [2012] 112 O.R. (3d) 742 (CA)).

[12] To that end, in assessing whether or not the judicial summary, or as in this case, the crown drafted summary, discloses sufficient information about the nature of the information provided by the confidential source so as to put counsel in a position to make full argument, the court must keep in mind that during an admissibility hearing the right to make full answer and defence is attenuated as innocence is not at stake.

Application to the Case at Bar

[13] In the case at bar, the grounds for the warrant come from a confidential source. To that end, when the section 8 issue is eventually addressed, the court will have to consider the Debot criteria. It is therefore, in my view, important that the summary of the redacted portions of the ITO include information relevant to the Debot criteria, in order to provide defence counsel with sufficient information to argue about the validity of the warrant. That is the issuing justice must have considered the credibility of the confidential source, if the information provided was corroborated and the compellability of the information received.

[14] In my view in assessing the sufficiency of the judicial/crown summary, the question the court must ask is whether there is sufficient information in the summary to make it known to the defence how these three factors were considered and to argue or call evidence in relation to the redacted information that has bearing on these three criteria. The court must also keep in mind that the test for reviewing the validity of a warrant at trial.

Credibility of the Informant

[15] The redacted ITO and summary of the redactions indicates that the confidential source is a carded informant, who is registered with the Toronto Police Service. The defendant also knows that the issuing justice was told that the confidential source has provided information in the past that was proven reliable because it led to the seizure of contraband. The nature of the contraband has been excised. The issuing justice knew these details when he/she signed the warrant.

[16] All information relating to the presence or absence of a criminal record for the confidential source has been redacted. The defendant has been advised in the summary that the issuing justice was told about the presence or absence of his/her criminal record.

[17] The issuing justice was also advised that the confidential source is receiving some kind of personal benefit for providing the information. The details of this benefit, however, have been redacted.

[18] In my view the redacted ITO and the summary provide sufficient information about the nature of the information that was redacted so as to argue about the credibility of the confidential source.

Corroboration

[19] According to the redacted information to obtain, at some point after receiving the information from the confidential source (time frame unknown), the police checked data bases and discovered that Mr. Mowatt lived at 5 Harding Avenue. This was the address that the confidential source attributed to Mr. Mowatt. The police also noted that Mr. Mowatt has a criminal record for possession of an unregistered firearm, robbery, aggravated assault and use of a firearm during the commission of an offence. He also has multiple convictions for trafficking in cocaine and a number of firearm prohibitions.

[20] The data base searches also yielded a description for Mr. Mowatt from 2010 that had Mr. Mowatt weighing 45 pounds less than the weight provided by the confidential source. Cross-examination of the affiant established that the officers saw Mr. Mowatt prior to obtaining the warrant. Mr. Mowatt was described by the surveillance officers as weighing 45 pounds less than that described by the CI too. This latter information did not make its way into the ITO.

[21] The police also confirmed that Mr. Mowatt uses the alias of Miami. This is the same street name provided by the confidential source.

[22] According to the ITO, the police conducted surveillance on one day only. On this date Mr. Mowatt was seen entering a white Honda civic that was located in the garage at 15 and 25 Harding Avenue. He drove to a motel on Janet Street and stayed there until surveillance concluded. According to the ITO, this information corroborated information received from the confidential source.

[23] In my view there is sufficient information between cross-examination of affiant, the redacted ITO and the summary to make the defendant sufficiently aware of the nature of the edited information on the corroboration criteria to challenge it in argument or by evidence.

Compellability

[24] The redacted ITO and summary combined relate the following information about the defendant's drug dealing:

• The defendant uses the alias of "Miami".
• The defendant is a drug trafficker dealing in cocaine.
• The confidential source provided additional identifiers for the defendant, but the actual identifiers have been excised.
• The confidential source provided some details about the defendant's dealing in less than one sentence but the details have been excised.
• The confidential source provided a physical description of the defendant. This description was not excised.
• The issuing justice was given additional personal information about the defendant as provided by the confidential source. This information has been excised. The summary does not provide any information as to what this personal information may relate.
• The issuing justice was advised of the length of time the confidential source has known the defendant. The actual information was excised.
• The ITO states that the confidential source told his/her handler that the defendant drives a white older model white Honda civic with tinted windows and that he will use this vehicle to deal crack. Other identifiers of the vehicle are included in the ITO but excised in the redacted ITO.
• Additional details about how Mr. Mowatt conducts his drug dealing business were provided by the confidential source and included in the ITO but excised in the version provided to the defendant. This information amounts to almost an entire page of information. The summary provides no guidance as to what the details refer to. One paragraph remains. This paragraph states that on a date that is within one month of the ITO being sworn, in an identified geographical area (that was excised in the ITO) Mr. Mowatt was inside his vehicle and the confidential source believed that he was in possession of a specified amount of crack cocaine.
• On page 13 of the ITO, the officer lists his grounds to believe that an offence has been committed. The summary and ITO combined indicate that the confidential source provided information that Mr. Mowatt, known as "Miami" deals drugs and that he was in possession of a particular amount of crack cocaine on a specific date. Other details were included but the summary provides no guidance as to what these details are.

[25] As can be seen from the review above, many details about Mr. Mowatt's alleged illegal activities have been excised from the ITO and the summary provides little insight into the nature of many of the details provided. The summary, as it relates to many of the redactions in the key passages in the ITO does not, in my view, meet the standard of providing sufficient information about the nature of the redacted material so as to allow the defendant to argue or call evidence on it. Generally, the summary only indicates that the confidential source gave information about Mr. Mowatt's alleged drug dealing. How specific the details are, whether they were obtained first hand or by others and the timeliness of most of the information cannot be ascertained.

[26] I appreciate that in a number of cases, even where the ITO is heavily redacted, judges have been able to find a way to successfully use step six. In my view, however, this case can be distinguished from those cases.

[27] In R. v. Dacosta, 2014 ONSC 4126, [2014] O.J. No. 3288 (SCJ), Justice Garton allowed for the use of a judicial summary over the objection of defence counsel. In that case however, substantially more information was disclosed. The defence was informed that:

a) That source is carded and has given information in past leading to seizure of four firearms and the arrest of more than one person;

b) While the defendant was not advised of the source's record, he did know that he had no convictions for crimes of dishonesty;

c) The source gave general description of Mr. Dacosta, where he lived, school he attends, his affiliation to gangs;

d) While the details of the relationship between the source and Mr. Dacosta were not disclosed, the defendant knew that the issuing justice was told these details;

e) The source gave the officer the description and number of guns in Dacosta's possession, the purpose for having these guns, that the defendant always carries a firearm, that the source knew this information first hand and saw the defendant with firearms.

f) The information provided by the source was very recent.

[28] In R. v. Grant, 2013 ONSC 6792, the court also allowed a judicial summary to be used in a case where the information to obtain was heavily redacted. In that case, however, the summary noted that the source told the officer Mr. Grant's modus operandi for selling drugs, and that the source personally purchased drugs from Mr. Grant. The summary also notes that the ITO included reference to the amount of drugs purchased and the frequency of the purchases. The fact of the purchases was included, the details were excised.

[29] In my view, the case at bar can be distinguished from both the case of Dacosta and Grant in that far less information has been provided in the summary. In both Dacosta and Grant, the defendant knew that the information came first hand, that the source saw the contraband in question and were given some insight into just how detailed the information provided by the source was. In the case at bar, no such information has been disclosed in the redacted ITO, the summary or from cross-examination of the affiant.

Conclusion

[30] In my view, the summary provided, does in places provide sufficient information such that the defendant is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. Other portions of the summary, however, do not. In my view, the use of the summary is not an all or none proposition. That is, where the excised material can be properly summarized, then it is incumbent on the court to allow for the use of a summary. It is only where the information cannot be properly summarized that I should resort to looking solely at the redacted information (see R. v. Martin, [2014] O.J. No. 1934 (OCJ)).

[31] With that said, given my findings outlined above, I find that given the quality of the information in the summary provided by the Crown, the following paragraphs from the original, unredacted ITO may be used during the section 8 argument:

• All the redactions related to the credibility of the informant – page 1, 5 and paragraph 28 on page 6.
• Paragraph 29a, 29b and 29i
• Portions of paragraph 29e (redactions W, X and Y but not redaction Z and AA)
• Paragraph 32
• Paragraph 61
• Paragraph 62
• Portions of Paragraph 65 (redactions AAA and BBB but not CCC)
• Paragraph 67
• Paragraph 68

[32] In my view, the summary provided does sufficiently describe the nature of the material excised from the above sections such that the defence can address the issues in argument or by evidence.

[33] In relation to the remaining redactions, the summary provided even taking into consideration the evidence obtained through cross-examination of the affiant, does not provide sufficient details as to the nature of the information provided to put defence counsel in a position to question the ITO and I will therefore only consider the redacted ITO on these remaining passages.

Released: December 11, 2014

Justice Mara Greene