Court File and Parties
Between:
Her Majesty the Queen
And
Andrew Bonito
Charter Section 8 Judgment
(Reasons for Judgment released on January 20th, 2016)
Counsel:
- Ms. E. Marrocco for the Crown
- Ms. A. Monaco for the Defence
Background
[1] The defendant and Applicant on the Motion, Andrew Bonito, is charged that on March 18, 2015 he did possess a loaded restricted firearm contrary to s. 95(1) of the Criminal Code and five other related firearms and ammunition offences; two counts of possession cocaine for the purpose of trafficking, one count of possession marijuana for the purpose of trafficking, one count of possession MDA for the purpose of trafficking, one count of possession proceeds ($6440 CDN) and three counts of possession prohibited weapon. All of the charges arise from the execution of a Criminal Code search warrant on the Applicant's residence on March 18th, 2015.
[2] The search warrant was based on information received from two confidential informants, which information lead the police to decide to apply for a warrant ostensibly on the grounds that the Applicant was in unlawful possession of a firearm at a particular residence. The primary issues in this application are: (1) Can this Court be satisfied that the Judicial Summary prepared in accordance with Step 6, R. v. Garofoli, [1990] 2 S.C.R. 1421, in combination with the redacted ITO and other information provides the Applicant with enough knowledge of the nature of the redactions to permit the Applicant to challenge them by argument or by evidence? (2) Did the police have reasonable and probable grounds to obtain the warrant? (3) If the search warrant was constitutionally invalid, are the drugs, prohibited weapons, proceeds and a firearm seized when the search warrant was executed, admissible under s. 24(2) of the Charter of Rights?
The Facts
[3] On March 18, 2015, Toronto police officers executed a Criminal Code search warrant — in respect to the offence of possession of a firearm — at 1976 Victoria Park Avenue unit 14, a dwelling house and also, in accordance with the authorization, searched 2 vehicles, a dark-coloured Acura, license BTRY 959 and a silver Mercedes license BTSS 523. Nothing of interest was located in the two vehicles. Drugs, money, a loaded handgun and three prohibited weapons were found in the residence.
[4] In the ITO in support of the requested authorization to search, (Exhibit 1), the Affiant P.C. Richard Haines indicated that two confidential informants provided information to police handlers and that in combination with police surveillance and police database investigations, provided reasonable and probable grounds to believe that Andrew Bonito was in possession of a firearm and that it could be located at the address or in the automobiles indicated.
[5] In terms of surveillance, on Monday, March 16 Detective Constable Blake attended 1976 Victoria Park Avenue to conduct surveillance on Andrew Bonito and observed that the residence is in a low-rise townhouse complex located near Lawrence Avenue East in Toronto and the above-noted Mercedes motor vehicle was parked in a lot for that address as well as a dark-colored motor vehicle license plate BTRY 959. (The latter Acura motor vehicle was erroneously referred to as an Audi motor vehicle in this part of the ITO).
[6] Additionally at approximately 4:10 PM on that date Andrew Bonito was observed "exiting 1956 Victoria Park Avenue and entering the Mercedes motor vehicle" after which he left the complex and drove southbound on Victoria Park Avenue. Further, database checks on Andrew Bonito showed that he had no criminal record and was not before the courts on any criminal charges, he did not own a firearm and had no firearms licenses, and that on four dates in the past (August 3, 2012, September 14, 2012, August 15, 2013, and October 5, 2014), Andrew Bonito had come in contact with investigating officers and provided the address 1976 Victoria Park Avenue, unit 14 as his home address. In respect to two other contacts with police in 2012 and in 2014, Mr. Bonito provided police with a home address in Marmora Ontario. An MTO check indicated that on February 12, 2015 Mr. Bonito changed his address in MTO records to 1976 Victoria Park unit 14 Toronto. CPIC searches confirmed that both the Mercedes and Acura motor vehicles were registered to Andrew Bonito at 1976 Victoria Park Avenue unit 14, Toronto.
Procedure on the Motion
[7] Mr. Bonito applies pursuant to s. 8 and 24(2) of the Charter of Rights and Freedoms to exclude the seized evidence: marijuana, cocaine, MDA, the handgun and ammunition and three prohibited weapons. It is argued that there were insufficient grounds to justify the issuance of the warrant and that the search was therefore unreasonable and a violation of his section 8 rights under the Charter.
[8] The ITO was disclosed to the defence after being heavily redacted to protect the identity of the confidential informants and Crown counsel, Ms. Marrocco, conceded that based on the redacted ITO and other disclosure, reasonable and probable grounds for the issuance of the warrant would not have been established. The Crown then applied to have the court consider the redacted portions of the ITO in accordance with the "step six" procedure set out in R. v. Garofoli, [1990] 2 S.C.R. 1421, S.C.J. No. 115, at para. 79. The redacted copy of the ITO is marked Exhibit 1 on the voir dire and it is summarized above in paragraphs 3, 4, 5, and 6 and under the Confidential Information heading below. The Crown prepared a draft judicial summary in accordance with the Garofoli 'step six' practice with a view to having the court adopt the summary as a reasonable balance between sufficient disclosure of the nature of the redacted information to permit a full and meaningful defence on this admissibility hearing while still protecting informer privilege. A Judicial Summary was prepared and marked Exhibit 5.
Confidential Information in the I.T.O. (Exhibit 1)
[9] Appendix E of the ITO, the confidential source information, was heavily redacted and referred to two confidential sources. Confidential source no. 1 was said to have been registered with the police and was advised that no benefit would be provided should his/her information turn out to be misleading or false. That source indicated that Andrew Bonito is a dealer in crack cocaine and firearms and resides in the area "Victoria Park and Lawrence Avenue East, Toronto." The source described Bonito as a black male with light skin, tall with a ponytail. It was said that he drove an Acura with tinted windows. He/she was shown a photograph of Andrew Bonito and he/she confirmed that to be the same male as he/she described in the source information. It was indicated by the affiant officer that none of the information provided by the source in the past has proven to be false.
[10] Confidential source no. 2 spoke to police in 2015. That source was also registered with police. The affiant stated that the source was told that no benefit would be received if the information turned out to be false or misleading. That source referred to Mr. Bonito as selling marijuana and cocaine and confirmed the identity of Mr. Bonito in a photograph that was shown to that source. That source indicated Mr. Bonito was driving a dark colored Acura and made reference to Mr. Bonito in relation to a firearm and a gun. The source also indicated Mr. Bonito sells crack cocaine. The Affiant indicated that none of the information provided by the source was proven to be false.
The Judicial Summary (Exhibit 5)
[11] In accordance with the usual procedure in a "step six" Garofoli proceeding, the unredacted ITO was reviewed by the Court, with the consent of counsel. That document was then sealed in an envelope and marked Exhibit 2. Crown counsel then produced a Draft Judicial Summary that was reviewed and marked Exhibit 3. In the usual fashion, a written confidential communication system was instituted between the Court and Crown Counsel. Suggestions were made by the Court and responses were provided by Crown counsel. These documents were placed in a sealed envelope and marked Exhibit 4. The final product of this discourse, the Official judicial Summary, was reduced to writing and marked Exhibit 5 which includes Appendix A, a subsequent amendment to the Summary provided by Crown counsel in response to questions from the bench. Both counsel were given a full opportunity to make further submissions in relation to both the Summary and the Appendix that followed. The Judicial Summary, Exhibit 5, is set out below: (Additions to the Summary resulting from confidential discussions are underlined in bold typeface)
Official Judicial Summary of the Information to Obtain – R v BONITO
Appendix E
Confidential Source #1
Discloses the month and date that the source provided information. In any event, Source #1 provided his/her information within 75 days of the date of search.
Discloses that the source provided information to a handler, who provided it to a second police officer, who relayed it to the affiant
Reliability of the Confidential Source
Paragraphs 1 and 2: Disclose whether or not the source has any outstanding charges or criminal convictions, including the nature of any outstanding charges or criminal convictions. The criminal history of each source, if any, was revealed to the issuing justice.
Paragraphs 3-5: Discloses with whom the source is registered and whether or not the source has provided reliable information in the past. Both sources have provided information to police on prior occasions that proved to be correct and resulted in arrests and seizures. Neither source has ever provided any false information as far as the affiant is aware.
Motivation of the Confidential Source
Paragraph 7: Discloses the source's motivation for providing information. The motivation for each source was revealed to the issuing justice. Each source was motivated by self-interest and the possibility of a benefit. Whether or not either source received a benefit for past information is not included in the ITO.
Compelling Nature of the information provided by the confidential informer
Paragraph 9: Discloses whether or not the source information was first hand. Each source provided some first hand information.
Paragraph 10: Discloses how long the source has known or known of Mr. Bonito. The issuing justice was aware of the period of time over which each source acquired their knowledge.
Paragraph 11: Discloses source information in relation to Mr. Bonito's illegal activities and whether or not that information is first hand
Paragraph 12: Outlines the affiant's conclusion as to the level of detail in the source information
Information Provided by Source #1
Paragraph 13: Discloses whether the source knows or knows of Mr. Bonito
Paragraph 15: Discloses descriptive information relating to Mr. Bonito provided by the source
Paragraph 16: Discloses descriptive information relating to Mr. Bonito provided by the source. Both sources provided accurate descriptive information about Mr. Bonito. Each source identified Mr. Bonito from a single photo.
Paragraph 17-18: Discloses how long the source has known or known of Mr. Bonito and information relating to Mr. Bonito provided by the source. Both sources provided information about the area in which Mr. Bonito resided.
Paragraph 19: Discloses vehicle information relating to Mr. Bonito provided by the source. Neither source provided any licence plate information. Source #1 advised that Bonito drives a 2002 Acura TL with tinted windows.
Paragraphs 20-22: Discloses source information relating to crack cocaine and a firearm and whether or not that information is first hand. Whether or not each source made first hand observations with respect to drugs or a gun was revealed the issuing justice.
Paragraphs 23-29: Discloses some detailed source information relating to Mr. Bonito, including descriptive information, and information concerning criminal activities, and whether or not the source information is first hand. The reference to the Audi in para 26 is a type-o. In fact, the surveillance officers viewed the Acura in the parking lot.
Paragraphs 31: Discloses some police corroboration of the source information
Paragraph 34: Discloses the affiant's belief as to the reliability of the source
Confidential Source #2
Discloses the date and month when the source provided information to the handler and the date and month when the handler relayed the source information to the affiant. In any event, Source #2 provided his/her information within 60 days of the date of search.
Reliability of the Confidential Source
Paragraph 40: Discloses whether or not the source has outstanding charges or criminal convictions and the nature of any outstanding charges or criminal convictions, if they exist. The criminal history of each source, if any, was revealed to the issuing justice.
Paragraph 41-42: Discloses with whom the source is registered and whether or not the source has provided reliable information in the past. Both sources have provided information to police on prior occasions that proved to be correct and resulted in arrests and seizures. Neither source has ever provided any false information as far as the affiant is aware.
Paragraph 43: Discloses the affiant's belief as to the reliability of the source.
Motivation of Confidential Source
Paragraph 45: Discloses the source's motivation for providing information. The motivation for each source was revealed to the issuing justice. Each source was motivated by self-interest and the possibility of a benefit. Whether or not either source received a benefit for past information is not included in the ITO.
Compelling Nature of the information provided by the confidential informer
Paragraph 47: Discloses whether or not the source information was first hand. Each source provided some first hand information.
Paragraph 48: Discloses how long the source has known or known of Mr. Bonito. The issuing justice was aware of the period of time over which each source acquired their knowledge.
Paragraph 49: Discloses source information in relation to Mr. Bonito's illegal activities and whether or not that information is first hand
Paragraph 50: Outlines the affiant's conclusion as to the level of detail in the source information
Information Provided by Confidential Source #2
Paragraph 51: Discloses personal information relating to Mr. Bonito provided by the source
Paragraph 52: Discloses personal information relating to Mr. Bonito provided by the source
Paragraph 53: Discloses descriptive information relating to Mr. Bonito provided by the source. Both sources provided accurate descriptive information about Mr. Bonito. Each source identified Mr. Bonito from a single photo.
Paragraph 54: Discloses some first hand source information
Paragraph 55: Discloses source information relating to an Acura motor vehicle, and whether or not it is first hand. Neither source provided any licence plate information. Source #2 advised that Bonito drives a dark coloured Acura motor vehicle.
Paragraph 56: Discloses how long the source has known or known of Mr. Bonito. Both sources provided information about the area in which Mr. Bonito resided.
Paragraph 57: Discloses some information relating to Bonito and a firearm, including whether or not the information is first hand
Paragraph 58: Discloses some additional source information relating to Bonito and a firearm, including whether or not the information is first hand
Paragraph 59: Discloses some recent source information relating to Mr. Bonito's illegal activities, including whether or not the information is first hand
Paragraphs 60-61: Discloses source information relating to Mr. Bonito and crack cocaine, including whether or not the information is first hand
Paragraph 62: Discloses some first hand source information. Whether or not each source made first hand observations with respect to drugs or a gun was revealed the issuing justice.
Paragraph 65: Discloses the affiant's belief as to the reliability of the source
Appendix A to the Official Judicial Summary
Jan 7 2016
At least 50% of the information provided by each source was first hand.
The specific basis upon which each source believed that Mr. Bonito possessed a firearm was disclosed to the issuing justice.
Whether or not each source made first hand observations with respect to drugs or a gun was disclosed to the issuing justice.
Preliminary Matters
[12] As noted above, the ITO is marked Exhibit 1. In accordance with the 'step six procedure', I conducted the review and read the unedited search warrant that was before the issuing Justice of the Peace and which is now sealed and marked Exhibit 2. The original draft Judicial Summary is marked Exhibit 3 on the voir dire. The confidential exchange of memos with Crown Counsel, in which I made suggestions about some areas of the ITO in which I believed the editing could be lifted without identifying the confidential informant, is sealed and marked Exhibit 4. After conferring with the officers, the Crown agreed to make some revisions. Exhibit 5 is the revised Judicial Summary, with Appendix A, attached. Counsel made full submissions in respect to the Judicial Summary and Appendix.
[13] Ms. Monaco, on behalf of the Applicant, Mr. Bonito, then challenged the adequacy of the Judicial Summary in a number of respects and submitted that the Judicial Summary provided insufficient information about the nature of the redacted ITO material such that the right to fully defend Mr. Bonito on this application, had been effectively nullified. I will deal with that issue first.
Issue 1: The Adequacy of the Judicial Summary
[14] The central issue on this application is whether the judicial summary, redacted ITO and other information disclosed to the defence is sufficient to enable the Applicant to challenge the warrant such that his right to make full answer and defence is not impaired. The position of the defence is that the test in step six has not been met — that is, Mr. Bonito is not sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. It is argued, on the authority of R. v. Garofoli, [1990] 2 S.C.R. 1421 (SCC), the court therefore cannot consider the unredacted ITO in determining whether there has been a breach of Mr. Bonito's section 8 Charter rights. Should the Court be precluded from taking into consideration the unredacted ITO, this Application would necessarily succeed inasmuch as Crown counsel in this case agrees that the redacted ITO would not provide the requisite reasonable and probable grounds to support the issuance of the warrant.
[15] In R. v. Crevier, 2015 ONCA 619, at para. 43, the Court of Appeal considered what constitutes an adequate Judicial Summary:
A judge can accede to a Crown request to proceed to step six as long as the accused is "sufficiently aware of the nature of the excised material to challenge it in argument or by evidence." Put another way, the judicial summary of the redacted material provided to the accused, combined with the redacted ITO, must be enough to ensure the accused is in a position to exercise his or her right to make full answer and defence. Only then can step six be employed. However, in assessing the summary's sufficiency, account is also to be taken of the fact that the accused has received disclosure, that he or she can, with leave, cross-examine the affiant, and that he or she can lead evidence on the application. In addition, the right to make full answer and defence is to be assessed taking into account that a Garofoli hearing is an admissibility hearing, not a trial of the merits.
[16] At para. 101 in Crevier, Rouleau J.A., pointed out that the purpose behind the step six process is to balance conflicting interests. He stated: "Step six involves a balancing between the need to maintain informer privilege and the accused's right to challenge the ITO. Properly applied, step six achieves this balance without "attenuating" the right to full answer and defence. The right is defined in context; it is not limited or reduced."
[17] At paras. 70-74, the Court in Crevier affirms that an accused must be able to mount a facial and sub-facial challenge at step six:
[70] To give effect to the right to make full answer and defence at step six, the accused must be able to mount an effective challenge of the ITO and, in particular, challenge in argument or by evidence whether the Debot criteria of compellability, credibility, and corroboration have been met. At the same time, informer privilege must be protected. It could be argued that it is impossible for an accused to meaningfully challenge whether the three Debot factors were met if the accused does not have access to the redacted information.
[71] Step six of Garofoli, however, clearly contemplates this situation. In step six, some information provided by or concerning the informer is not revealed to the accused but is nonetheless available to the judge in assessing the validity of the warrant. The only caveat is that the accused must be "sufficiently aware of the nature of the excised material to challenge it in argument or by evidence."
[72] Two aspects of this caveat are worth highlighting. One is that the accused need be aware of only the nature of the redacted details, not the details themselves. The other is that the accused's awareness, gained through the judicial summary and other available information, must be sufficient to allow the accused to mount a challenge of the redacted details both in argument and by evidence. In my view, this means an accused's attack on an ITO and the validity of a search warrant can be made on either a facial or sub-facial basis, or both. In other words, the accused must, through the judicial summary, cross-examination of the affiant, or the leading of evidence, be in a position to mount both a facial and sub-facial attack on the warrant, including a challenge to those parts of the ITO that are redacted but relied on by the trial judge.
[73] A facial challenge simply looks to whether the ITO, on its face, was sufficient to support the warrant. The statements in the ITO are accepted as reliable and accurate, and there is a presumption that the search warrant is facially valid, which the accused has the onus of rebutting: Québec (Procureur général) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 68. The court asks whether, by its terms, the warrant authorized the search and seizure and whether the authorizing justice, acting judicially, could have issued the warrant based on the contents of the ITO. See Araujo, at paras. 19 and 44; and Sadikov, at para. 37. In other words, does the ITO on its face provide sufficient grounds for believing evidence of an offence would be found at the target address?
[74] On a sub-facial challenge, the burden likewise rests on the accused to establish the warrant's invalidity. A sub-facial challenge, however, goes behind the ITO "to attack the reliability of its content": Araujo, at para. 50. Any errors and inaccuracies in the ITO are excised, but can be amplified by evidence as long as the errors or inaccuracies were made in good faith. In determining the sub-facial validity of a warrant, the reviewing judge inquires into whether, based on the record as amplified on review, "there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued" (Araujo, at para. 51).
[18] Ms. Monaco, counsel for the defendant/Applicant, submitted that taken together, the redacted ITO materials (Ex.1), the Judicial Summary (Ex 5) and Appendix to exhibit 5 are insufficient to permit a meaningful challenge to the warrant's facial and sub-facial validity; consequently the court is precluded from considering the unredacted ITO according to Garofoli; as a result the warrant cannot be upheld. Finally, she argues, the search should be deemed warrantless and the evidence ruled inadmissible under section 24(2) of the Charter.
[19] Essentially then, the defence takes the position that it was effectively prevented from challenging the warrant because the redacted ITO and the Judicial Summary were substantially deficient in a number of areas. Some of the concerns expressed were the following:
(1) It was argued that information from the C.I.s provided within 60 or 75 days of the issuance of the warrant is not "recent" or "fresh." However I would interpret this reference in the Judicial Summary to mean any time within the previous 60 or 75 days, and generally that the information is relatively current.
(2) The reference to the "dark-colored Acura" in the ITO left the impression that any observation of the defendant's activities in relation to the vehicle was only hearsay, otherwise the color would have been noted. It is submitted that the reference to the same car as an "Audi" speaks to the lack of care in preparing the ITO.
(3) There was no corroboration of either source's information by way of surveillance to confirm the drug and gun trafficking allegations being made by the sources, according to counsel for the defendant. Even observations of suspicious activity would have offered some confirmation. The police investigation did not add any more information than what a neighbor in the vicinity of the residence would have known: this is referred to in the case law as "innocent information." The reference on p. 15 of the ITO that "much has been corroborated" is simply incorrect according to the defendant.
(4) It was clear from the databank searches police undertook that the defendant was using an address in Marmora, Ontario from December 2012 to February 2015. Counsel argues that neither of the sources appeared to be aware of the Marmora address and this fact calls into question the reliability of the source information.
(5) On page 7 of the ITO paragraphs 12 to 19 are missing and this fact leaves the unmistakable impression that much of the rhetoric in this ITO was cut and pasted into the document without concern for the accuracy of its content according to counsel.
(6) Without any related criminal record or antecedents that could suggest that Mr. Bonito had access to a firearm, it is submitted that any statement that a firearm could be found in his residence is nothing more than fanciful speculation.
(7) As a result of the failure to specify the sources' criminal records and the specific track record (reliability) of each in respect to prior investigations with which they assisted, and the failure to warn the sources of the specific criminal consequences of any false or misleading statements, it is argued that the credibility of both confidential informants is greatly diminished.
(8) The failure to supply an explanation as to how each confidential informant acquired knowledge and the failure to provide meaningful detail as to the defendant's activities and lifestyle (the pattern of business, where he sold and stored drugs, etc.), renders the conclusory statements about the defendant's alleged criminality, less than compelling. Neither the redacted ITO nor the judicial summary, offer any explanation as to how the sources knew the defendant, his family, his lifestyle, or any features of his residence and his neighborhood. It is argued that CI no. 1 is incorrect in referring to the defendant as "tall". There is even a serious question as to whether either source could identify the defendant, the police having removed the question from consideration by showing each source a photo of the defendant.
(9) Most importantly according to the defendant, there is no way of assessing the reliability of these confidential informants when there is no reference made as to the type of benefit being sought and received in exchange for the information or any appreciation of the legal implications of false statements. On the basis of the foregoing it is argued it is not possible to meaningfully challenge the authorization to search without an understanding of the sources' motivation and what controls, if any, were applied to prevent "no-risk speculation" on their part.
Analysis
(a) Defence Challenges to the Judicial Summary
[20] The ground rules for 'step six' decision-making are found in R. v. Crevier at para 83, where the Court points out that "In either preparing the summary or approving the Crown's proposed summary, the trial judge must be satisfied that the summary includes as much information as is possible to allow the accused to mount both a facial and a sub-facial attack on the ITO while nonetheless ensuring that informer privilege is maintained. This means the summary must provide the accused with a meaningful basis upon which to challenge whether the affiant made full and frank disclosure regarding the reliability of the informer and his or her tips, as required by Debot. The context, however, will always be one where the summary will never be a complete substitute for full disclosure, given the need to protect informer privilege."
[21] Further, at para. 84 the Court of Appeal specified the nature of the information required when confidential informants are involved: "The judicial summary should, therefore, provide the accused with sufficient information to evaluate whether the preconditions for issuing the warrant were met. Since confidential informers are involved, this would naturally include information that speaks to the three Debot factors: whether the information was compelling and corroborated, and whether the informer was credible."
[22] Finally, it should be noted that at para. 72 of Crevier, the Court states: "the accused need be aware of only the nature of the redacted details, not the details themselves." As well, para 89 points out that limitations to a challenge to a redacted ITO are inherent in the step six process: "The need to strike a balance between the interest of law enforcement, informer privilege, and the accused's right to full answer and defence will result in a challenge that is less direct than it otherwise could be." And further at para. 98: "Admittedly, as I have explained, the challenge is inevitably less focused than if she had access to all of the details contained in the redacted ITO."
(b) Assessment of the Defence Challenges to the Judicial Summary
[23] In reference to the arguments raised by the defence in para 19 above, I would offer the following comments: (the paragraphs below correspond with the numbered paragraphs in paragraph 9):
(1) In terms of timeliness, it seems to me that it 'goes with the territory' that the information received from confidential informants will always be referred to as having been received during the few months before the search because anything more specific would likely narrow the pool of possible informants;
(2) I cannot assume that innocuous detail like the color of the car is necessarily hearsay. It may just as well be a matter of no interest whether the car was dark blue, dark gray or black. To say this is hearsay is as much a matter of speculation as it would be to suggest the informant may be colorblind. The reference to an Audi motor vehicle is clearly nothing more than an inconsequential typographical error.
(3) I will respond to the concern expressed about the lack of police corroboration in the form of surveillance in paragraph 24 below.
(4) On the basis of the MTO searches I cannot assume Mr. Bonito lived at the Marmora address just because that was an address listed as his residence until February 2015 with MTO. It could just as likely be a mail-drop address belonging to a relative, particularly if one is changing addresses quite often.
(5) The inference that a firearm 'may likely be at a residence' will be a fair inference if the evidence of possession is credible and the person in possession needs to be out of his/her residence for innocent pursuits like shopping and meeting friends.
(6) The cut-and-paste problem in the preparation of ITO's is both prevalent and problematic because it leads to the inclusion of inaccurate information from prior warrants and less than adequate scrutiny of whether the text pasted accurately reflects reality. However, the fact that 8 paragraph numbers are missing does not support a necessary assumption that any of the content in the ITO is accurate or misleading. One simply has to be mindful that expressions like: "much has been corroborated" (page 15, Exhibit 1) constitute boilerplate rhetoric that is used over and over in these warrant applications.
(7) It is axiomatic that the credibility of any source will be diminished without a clear indication of the criminal record and a complete history of prior police assistance by that source. It is apparent from the wording of the judicial summary that the Crown and police in this case believe that such information could serve to identify the source and I am required to accept that premise: R. v. Leipert, [1997] 1 S.C.R. 281 at para. 32. In the end, the over-arching determination is whether the three Debot criteria have been satisfied.
(8) I understand the concern expressed concerning lack of detail in many aspects of the ITO. This would be a valid complaint in respect to a regular section 8 Charter challenge. However the case authorities regarding step six proceedings are clear: the accused need be aware of only the nature of the redacted details, not the details themselves: R. v. Leipert, R. v. Crevier, supra.
(9) Where there are no specifics as to benefits received by sources and no warning given to sources as to potential jeopardy for false or misleading statements, there are serious and weighty concerns as to reliability. One can only imagine the damage that could be done to innocent persons as a result of unsavory informants providing false information to obtain some advantage in another prosecution. This along with other concerns expressed will be weighed and balanced in determining whether the Crown has ultimately satisfied the three Debot criteria.
[24] I share the concern expressed regarding the police failure to conduct surveillance to corroborate the C.I.'s information about drug and gun trafficking. Nevertheless, it should be recognized that there are inherent risks in extensive surveillance: the target could become aware of the scrutiny and dispose of highly moveable drugs or handguns or decide to use a particular firearm putting the community in peril. Secondly, as noted in Crevier, (para. 107) even though corroboration may be weak in a particular case: "the assessment of the reliability of an informer's tip is to be made on the basis that weaknesses in one of the Debot factors may, to some extent, be compensated for by strengths in the other two factors." Thirdly, in Crevier, police conducted no confirmatory investigation, aside from database checks, yet the Summary was deemed adequate and the warrant upheld. Finally, the Supreme Court has affirmed an Alberta Court of Appeal dictum that holds that "it is not necessary for the police to corroborate the core criminality alleged by the informant:" R. v. Caissey (2007), 2007 ABCA 380, 227 C.C.C. (3d) 322 at paras. 12-25 (Alta. C.A.), aff'd at (2008), 2008 SCC 65, 237 C.C.C. (3d) 289 (S.C.C.). In this case there were database checks and surveillance that confirmed facts relating to the neighbourhood, the vehicles, and Mr. Bonito's use of the target address and the Mercedes vehicle. While the corroboration in this case is minimal, it appears to be offset by sufficient information in the nature of credibility and 'compellingness.'
[25] At para. 84 in R. v. Crevier, the Court provides a non-exhaustive, non-prescriptive list of what could constitute Judicial Summary sufficiency. Based on the Crevier discussion, the following information in a Judicial Summary would be some evidence of sufficiency in the sense of adequate information to evaluate whether the preconditions for issuance of the warrant are met:
In the redacted ITO source 1 provides information that Andrew Bonito is a dealer in crack cocaine and firearms. In the redacted ITO, source no. 2 provided information that: "Bonito sells crack cocaine" and at paras. 57 and 58 of the ITO, the C.I.'s information is said to be: "Bonito firearm" and "gun Bonito." The Judicial Summary indicates that at least 50% of the source's information was first hand and disclosed the basis upon which each source believed Mr. Bonito possessed a firearm and the period of time during which they acquired their information and that they spoke to police on specific dates, sometime within 60 or 75 days of the search.
As to credibility and reliability, the Judicial Summary notes that the criminal history and outstanding charges, if any, in respect to both sources, was disclosed to the issuing justice. Further, it was indicated that both sources were "registered" and provided assistance to police in the past that resulted in arrests and seizures and that neither source had provided any false information as far as the affiant is aware. The sources' motivation (self-interest) for providing information was disclosed without indicating whether any benefit was received.
As to the compelling quality of the information provided, in the ITO source 1 provided information about the general area in which Mr. Bonito lived, a description, the type of car he drove and identified him from a photograph. Source 2 described his vehicle and identified him from a photograph. According to the Judicial Summary, the affiant comes to a conclusion about the level of detail and the quality of descriptive information provided by the sources. As well, the sources of knowledge with respect to drugs or a gun were disclosed and whether or not it was first hand. It was indicated in the Judicial Summary that both sources provided accurate information about Mr. Bonito, the area in which he resided and both sources accurately described the make of his vehicle. There were no discrepancies between either source in terms of information provided. Both identified him from a single photo.
[26] The Crevier list is of assistance in determining what may be missing from an adequate Judicial Summary in the instant case even though the list is said to be "non-prescriptive." Still, some areas of "deficiency" can be identified: (see para. 84, Crevier)
(2) The informer's relationship with/to the accused and how they first came into contact; (not indicated in Bonito Summary)
(3) The length of time the informer has known the accused and the frequency of contact between them; (not indicated)
(5) Whether previous information provided (if any) has led to arrests, seizures, or convictions; (no information about convictions)
(7) Whether the informer has a criminal record and, if yes, whether the unredacted ITO includes details of the convictions or charges or whether a copy of the criminal record was appended; (criminal record not appended)
(8) Whether the informer has convictions for offences of dishonesty or against the administration of justice; (criminal record not specified)
(9) The informer's motivation for speaking to police, including whether consideration was sought or arranged; (details about consideration not provided)
(10) Whether the informer was instructed on the penalties for giving false information; (no instruction given)
(16) Any errors or inaccuracies that exist in the ITO, and their nature (e.g. typographical errors) (ITO refers to an Audi motor car (incorrect) and describes Mr. Bonito as "tall" which is "incorrect" according to counsel)
[27] I have considered the above 'deficiencies' in the Judicial Summary and still believe there is a meaningful basis upon which the defence could argue the information provided is not compelling, not corroborated and not credible. The above "deficiencies" do not prevent the Applicant from being aware that there are two registered sources corroborating each other that provided some detailed information (including vehicle, neighborhood and criminal activities) relating to Mr. Bonito, in respect to drugs and a firearm. The information was fairly recent and 50% first hand. The database checks and surveillance corroborated, to some degree, the information from confidential sources. The Applicant would be aware that the motivation for providing information on the part of both was disclosed and both had been successful in assisting the police in the past. I accept that points (2) to (9), above, could potentially make it easier to identify the informants and are matters that could be left undisclosed to protect the identity of the sources. Points (10) and (16) are problematic "deficiencies" but not necessarily fatal in terms of sufficiency. A stern "consequences" warning is an important protection for a potential search warrant target; I cannot consider the "tall" reference to be incorrect in the absence of an evidentiary foundation. However, in my view, the above-noted "deficiencies" do not render the Judicial Summary inadequate or insufficient.
[28] I acknowledge that much of the Judicial Summary is empty, conclusory, rhetoric that lacks detail and renders the task of challenging the reliability of the C.I. more difficult. However, according to Crevier, supra, "the accused need be aware of only the nature of the redacted details, not the details themselves." Secondly, the binding authority from the Supreme Court (R. v. Leipert, [1997] 1 S.C.R. 281 at para. 32) is that in cases "where it is impossible to determine which details of the information provided by an informer will or will not result in that person' identity being revealed, then none of those details should be disclosed." Finally, it is my view that the defendant is still able to make argument to challenge the Summary and redacted material and address what should be before the reviewing court to satisfy the three Debot factors. To quote from Crevier, "While the judicial summary could have been more fulsome and does not cover all of the categories, I am satisfied that the summary made the appellant sufficiently aware of the nature of the redacted material to challenge it in argument or by evidence as envisaged by Garofoli." In my view, the Applicant is in a position to make general or hypothetical arguments about the validity of the warrant and the adequacy/sufficiency test has been met in this case.
Issue 2: Did the Police Have Reasonable and Probable Grounds to Obtain the Warrant?
[29] A warranted search and the information to obtain sworn in support of the issuance of the warrant is presumptively valid. The Applicant bears the burden of proof on a balance of probabilities to demonstrate that the search of his residence was unreasonable by challenging the ITO or the warrant itself. The question for a reviewing judge is not whether he or she would have issued the warrant, but whether, on the permissible record before him or her, the issuing justice could have properly issued the warrant. In other words the reviewing judge considers the record before the issuing justice, the ITO, and after deleting any unconstitutionally obtained information determines whether there remains sufficient credible and reliable evidence to permit the justice to issue the warrant: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253.
[30] According to section 487(1) of the Criminal Code the test of whether or not the police have a sufficient basis to obtain a warrant has three elements. The police must establish to the satisfaction of the issuing justice that there are, among other things: (a) reasonable grounds to believe that an offence has been committed; (b) reasonable grounds to believe that certain items will be found at a particular place; and (c) reasonable grounds to believe that those items will afford evidence with respect to the commission of an offence. The test to be applied by the reviewing justice on a section 8 Charter application is whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed. That is, whether there is "reliable evidence that might reasonably be believed" that (1) an offence has been committed and (2) that evidence of the offence exists in the places to be searched: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (SCC) at para. 40.
[31] The appropriate standard in terms of whether reasonable grounds exist for a search is one of "reasonable probability" based on the "totality of the circumstances." In Debot, Justice Wilson stated that:
The question as to what standard of proof must be met in order to establish reasonable grounds for a search may be disposed of quickly. I agree with Martin J. A. that the appropriate standard is one of "reasonable probability" rather than "proof beyond a reasonable doubt" or "prima facie case." The phrase "reasonable belief" also approximates the requisite standard.
[32] After a careful review of the "totality of the circumstances" that must meet the standard of reasonableness, I have concluded that the standard has been met in this case. Based on the material before the issuing justice, I am satisfied that there were reasonable grounds upon which a warrant could have issued to search the vehicles and residence on Victoria Park Avenue. While I have concerns about source reliability, the fact there were two sources that corroborated each other and both were proven accurate by police checks and surveillance to some degree, lends sufficient assurance about the possession of a handgun at the named residence that the reasonable probability test has been met in all the circumstances. There was no violation of Mr. Bonito's section 8 Charter rights.
[33] I arrive at this conclusion by reference to R. v. Greaves – Bissesarsingh [2014] ONSC 4900 (SCJ), a decision in which the Court interpreted the three Debot factors. According to Code J. the term "compelling" refers to considerations that relate to the reliability of the informer's tip such as the degree of detail provided and the informer's means of knowledge, that is, whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip. In the present case the C.I.s have provided at least 50% first hand observations involving some detail that was received by police within 60 or 75 days of the search and is therefore reasonably current. As Code J. states at para. 40:
In terms of analyzing whether the informer's tip was "compelling", Mr. Rados correctly conceded that a detailed tip, based on first hand observations that are reasonably current, has generally been regarded as "compelling" in the case law.
[34] I am satisfied there was a basis upon which the Justice of the Peace could find that the confidential informants in this case were "compelling".
[35] The Court in R. v. Greaves – Bissesarsingh stated that the term "credibility" entailed considerations such as the informer's motivation, criminal antecedents, and any past history of providing reliable information to the police. In the present case the C.I.s' motivation, criminal antecedents or lack thereof, and past history of providing information that has led to arrests, warrants and seizures, all have been outlined in the material. The credibility of these sources was diminished by the lack of clarity as to criminal records, the absence of information about whether convictions resulted from past assistance, their unstated motivation and the fact neither were warned about the consequences of false statements. Still, it must be noted that they at least had some 'track records' with police - unlike the tipster in Greaves – Bissesarsingh (where the warrant was upheld). There was a basis upon which the Justice of the Peace could find that the confidential informants in this case were credible.
[36] The term "corroboration" refers to any supporting information uncovered by the police investigation. While corroboration by way of investigation was fairly minimal in this case, it was more than what the Court in Crevier found was sufficient. The Court in Debot was clear that all three factors are not equally weighted and deficiencies in one area can be compensated for in other areas. The combination of fairly compelling confidential informants, some level of credibility and some "corroboration" provided the Justice of the Peace with a proper basis to find that the "reasonable and probable grounds" standard had been met. Accordingly, based on the record before the authorizing justice, having concluded that the authorization could have been granted, I have no further role in this review process: R. v. Morelli, supra at para. 40.
[37] I conclude that there was a proper basis on which the Justice of the Peace could have issued a warrant to search Mr. Bonito's residence. Accordingly, I find there was no violation of s. 8 of the Charter. As a result, there is no need to address the section 24(2) remedy. The application is dismissed. The drugs, proceeds, prohibited weapons, and the firearm are therefore ruled admissible.
Peter A. J. Harris J.
January 20, 2016