Court File and Parties
Ontario Court of Justice
Date: June 27, 2018
Court File No.: Brampton 16-934-01 and 16-934-02
Between:
Her Majesty the Queen
— and —
Antonio Mediati and Sultana Dineff
Before: Justice A.R. Mackay
Heard on: December 11 and 12, 2017
Ruling on: Constitutionality of Step Six of Garofoli
Released on: June 27, 2018
Counsel
Victoria Rivers — counsel for the Crown
Sonya Shikhman — counsel for the applicant Antonio Mediati
Norm Stanford — counsel for the applicant Sultana Dineff
MACKAY J.:
Introduction
[1] The applicants are jointly charged with five counts of possession for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA"). Ms. Dineff is charged additionally with possession of cocaine contrary to s. 4(1) of the CDSA and Mr. Mediati is also charged with possession of methamphetamine for the purpose of trafficking contrary to s. 5(2) of the CDSA.
[2] The applicants seek to challenge the constitutional validity of step six of Garofoli which they submit offends s. 7 of the Charter. I have rejected that challenge with written reasons to follow. These are those reasons.
Background
[3] On January 3, 2015, a warrant was issued authorizing the search of Mr. Mediati's home. The home was searched and police located, in the applicant's basement, a locked steel door controlling a cold room. In this room they located seven and a half kilograms of cocaine. The applicant's material states that a small quantity of heroin, ecstasy (MDMA), and crystal meth were also found.
[4] The merits of the case have not yet been tried. The defence brought a Garofoli application. The hearing before me of that application has been a very protracted one with various defence sub-applications being brought at different stages and during final submissions. The hearing commenced on November 9, 2016.
[5] After a successful application by defence counsel to excise an arrest of a third party from the ITO, the Crown acknowledged that the redacted version of the ITO was insufficient to meet the criteria set out in R. v. Debot, [1989] 2 S.C.R. 1140. The Crown then invoked step six of Garofoli. As part of its response, the defence has brought this application to challenge the constitutional validity of the step six procedure.
Position of the Parties
[6] The applicants argue that the step six procedure under Garofoli is incompatible with the Charter in that it violates their right to a fair hearing as guaranteed by s. 7; that it prevents an accused from making full answer and defence by not permitting them to know the case they have to meet.
[7] While each paragraph in the appendices of the ITO have been summarized and provided to the applicants, a number of the paragraphs give very little detail except to say "specific details about Mediati's drug dealing practices." It is the applicants' position that such a phrase tells them nothing about the redacted information. In addition, many of the other paragraphs provide them with only a very general idea about the redacted information. Given the lack of disclosure they have no way of ensuring that the "three C's" as set out in Debot were established. Where an informer tip is relied on in support of a search warrant, it must be compelling, credible and corroborated by police investigation: R. v. Crevier, 2015 ONCA 619 at para. 67.
[8] The Crown's position is that the constitutional issue raised has been decided or effectively decided by the Court of Appeal in Crevier and R. v. Reid, 2016 ONCA 524, which have already analyzed the step six procedure in the context of s. 7 of the Charter. These decisions are binding on this Court and no further analysis of step six is therefore required or even open to this Court.
[9] I agree with the Crown that litigation of this issue is foreclosed for this Court by the cases cited. However, if I am wrong in this, I would in any event come to the same conclusion for the reasons that follow and hold that the step six procedure is constitutionally valid.
The Applicants' Argument
[10] Before analyzing the applicants' argument, I note that what is under attack here is not a statutory provision but rather a judge-made rule or recommended procedure developed by the Supreme Court of Canada itself in a post-Charter case, Garofoli. In that case the Court attempted to strike a balance between the Charter rights of the accused and the needs of law enforcement and the protection of confidential informants. It drew a procedural path to be followed to best accommodate these competing interests. It must be assumed that the Court did not create an unconstitutional procedure. In a sense Garofoli itself is conclusive authority that the Garofoli procedure is Charter compliant. The applicants face a very steep uphill battle.
The Right to Make Full Answer and Defence
[11] But to turn to the argument: An accused's right to make full answer and defence, is a principle of fundamental justice and is constitutionally protected under s. 7 of the Charter. The constitutionally protected right to make full answer and defence includes other fundamental rights such as "the right to make full and timely disclosure, the right to know the case to meet, the right to challenge the admissibility of the evidence proffered for admission by the Crown and the right to cross-examination": Crevier, at para. 52; and Reid, at para. 77. The applicants contend that step six is inconsistent with this fundamental right. Reliance is placed substantially on R. v. Charkaoui, 2007 SCC 9, [2007] 1 S.C.R. 350, and accordingly that decision must be closely examined.
R. v. Charkaoui
[12] In Charkaoui, the Supreme Court held that the procedure in the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), for determining the reasonableness of a certificate infringes s. 7 of the Charter and that it was not saved by s. 1. The appellant was arrested and held on a security certificate based on allegations of terrorist involvement. The process could result in a certificate declaring that a foreign national or permanent resident is inadmissible to Canada on the grounds of security. Section 7 was engaged as this included the detention and removal of that individual from Canada without a right of appeal. Under that legislation judges presiding over these cases were entitled to review information relied on by the government. Where confidentiality was claimed for national security reasons, the judge was unable to share the material with the named person. Part of the hearing could be held in camera, without the named person or their counsel present. If the decision of the judge was that the certificate was reasonable there was no right of appeal.
[13] The Supreme Court found that while national security may be at stake by the disclosure of allegations when there are serious intrusions placed on a detainee's liberty, fundamental justice requires substantial compliance with s. 7 of the Charter. A detainee must have the right to know the case put against him or her and the right to answer that case. C.J.C. McLachlin as she then was held that either a person must be given the necessary information relied upon to uphold the certificate or a substantial substitute for that information must be found.
[14] The applicants in the present case argue that the step six procedure fails to provide an effective substitute for informed participation. Chief Justice McLachlin found that a judge under the IRPA proceedings could not replace an informed advocate. At para. 63, the Court wrote:
I agree with the appellants. The issue at the s. 7 stage, as discussed above, is not whether the government has struck the right balance between the need for security and individual liberties; that is the issue at the stage of s. 1 justification of an established limitation on a Charter right. The question at the s. 7 stage is whether the basic requirements of procedural justice have been met, either in the usual way or in an alternative fashion appropriate to the context, having regard to the government's objective and the interests of the person affected. The fairness of the IRPA procedure rests entirely on the shoulders of the designated judge. Those shoulders cannot by themselves bear the heavy burden of assuring, in fact and appearance, that the decision on the reasonableness of the certificate is impartial, is based on a full view of the facts and law, and reflects the named person's knowledge of the case to meet. The judge, working under the constraints imposed by the IRPA, simply cannot fill the vacuum left by the removal of the traditional guarantees of a fair hearing. The judge sees only what the ministers put before him or her. The judge, knowing nothing else about the case, is not in a position to identify errors, find omissions or assess the credibility and truthfulness of the information in the way the named person would be. Although the judge may ask questions of the named person when the hearing is reopened, the judge is prevented from asking questions that might disclose the protected information. Likewise, since the named person does not know what has been put against him or her, he or she does not know what the designated judge needs to hear. If the judge cannot provide the named person with a summary of the information that is sufficient to enable the person to know the case to meet, then the judge cannot be satisfied that the information before him or her is sufficient or reliable. Despite the judge's best efforts to question the government's witnesses and scrutinize the documentary evidence, he or she is placed in the situation of asking questions and ultimately deciding the issues on the basis of incomplete and potentially unreliable information. [Emphasis added]
[15] In my opinion Charkaoui is clearly distinguishable. The procedure under the IRPA and a step six Garofoli are two very different types of hearings. Under the former procedure of the IRPA, the end result of the hearing was that individuals would be detained, deported and thereafter potentially face dire consequences without a right of appeal. A step six hearing can only result in a finding that a presumptively valid search warrant was issued based on reasonable and probable grounds or that the search warrant should not have been issued.
[16] The Garofoli step six is part of an evidentiary hearing to determine the admissibility of items seized under a warrant as evidence. It is not a trial or a hearing which ultimately determines someone's guilt or innocence. The judicial summaries have to do with a pre-trial procedure the purpose of which is to determine the admissibility of evidence.
[17] Because a Garofoli hearing deals with the admissibility of evidence and not the guilt or innocence of the accused, the right to make full answer and defence needs to be viewed in context and balanced against other interests, primarily informer privilege: R. v. Crevier, supra, at paras. 56 to 59; R. v. Lising, 2005 SCC 66 [hereinafter Pires], at para. 24.
[18] This contextual distinction and inapplicability of Charkaoui, has been authoritatively recognized in Reid at para 49:
…… In a similar way, the invocation of the principles elucidated in Charkaoui, Re, 2007 SCC 9, [2007] 1 S.C.R. 350 (S.C.C.), is of little value in this context since that case makes it clear that s. 7 does not require a particular type of process but one that is fair in light of the nature of the proceedings and the interests at stake: Charkaoui, at para. 20.
[19] Further, in Charkaoui the Supreme Court was of the view that a substantial substitute for information not disclosed to the named person could result in compliance with s. 7: Charkaoui, at para. 61. While there was no such substantial substitute in that case and hence a finding of unconstitutionality, there is such a substitute with respect to the step six procedure. In R. v. J. (N.), 2017 ONSC 857, Gilmore J. found, at para. 45, that in the context of a Garofoli step six hearing, summaries of redacted information can provide an adequate substitute for that lack of disclosure. I found her decision to be persuasive and I come to the same conclusion.
Court of Appeal Decisions
[20] As mentioned at the start of these reasons, the Court of Appeal has dealt with many of the underlying issues and concerns arising in Garofoli hearings both generally and specifically in relation to step six.
Full Answer and Defence
[21] While the right to make full answer and defence includes the right to full disclosure and the right to know the case to meet, the Court of Appeal reminds us that neither the right to make full answer and defence nor the right to disclosure is absolute. In Reid Justice Watt wrote, at paras. 78 and 79:
78 On the other hand, neither the right to make full answer and defence nor the right to disclosure is absolute. For example, however fundamental, the right to make full answer and defence does not reach so far that it issues a blank cheque to an accused to pursue any and every conceivable tactic and line of inquiry in service of defending him or herself against an allegation of crime: Crevier, at para. 53; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 64. Context and the presence and influence of other competing interests are of importance in establishing the outer boundaries of the right: Crevier, at para. 53.
79 Nor is an accused's right to disclosure absolute. It is subject to the discretion of the Crown, a discretion which extends to the enforcement of CI privilege: R. v. Stinchcombe, [1991] 3 S.C.R. 326, at pp. 335-36 and 339.
CI Privilege
[22] The Court goes on to explain the critical importance of informant privilege at paras. 80 to 83:
80 Confidential informant privilege is a class privilege. The rule is of fundamental importance to the workings of our criminal justice system: Bisaillon c. Keable, [1983] 2 S.C.R. 60, at p. 105; R. v. Leipert, [1997] 1 S.C.R. 281, at para. 10.
81 Informer privilege is of such importance that, once established, a court is not entitled to balance the benefit that enures from the privilege against countervailing considerations: Leipert, at paras. 12 and 14. The only exception to the rule is innocence at stake. No exception exists for the right to make full answer and defence: Application to proceed in camera, Re, 2007 SCC 43, [2007] 3 S.C.R. 253 [hereinafter Vancouver Sun], at para. 28.
82 Preservation of the near absolute nature of CI privilege has significant implications for the redaction process as well as for requests for further disclosure about the informant's sources of knowledge or the nature of the information provided. It is virtually impossible for a court to know what details may reveal the identity of a CI: Leipert, at para. 28; World Bank Group v. Wallace, 2016 SCC 15, 395 D.L.R. (4th) 583, at para. 129.
83 An absolute CI privilege rule, subject only to the innocence at stake exception, is consistent with the protection the Charter accords to the right to a fair trial: Leipert, at para. 24; Vancouver Sun, at para. 28.
The Step Six Garofoli Procedure Described
[23] In Crevier, Rouleau J.A. described step six as follows, at para. 45:
Step six of the process allows the court to meaningfully assess the ITO as it was prepared by the affiant and presented to the authorizing judicial officer, without redaction, in order to determine the accused's claim that it did not meet the statutory requirement of reasonable and probable grounds for the issuance of a warrant.
[24] Defence counsel, however, never sees the un-redacted version.
[25] When the Crown invokes step six, the trial judge gives defence counsel a judicial summary of the redacted parts of the ITO. Defence counsel, using that summary, the redacted ITO and whatever additional information it has available to it – such as Crown trial disclosure or preliminary inquiry transcripts – attempts to convince the trial judge that the contents of the un-redacted ITO, which defence counsel has not seen, could not justify the issuance of the search warrant: Garofoli, at p. 1461; and Reid, at paras. 84-86.
[26] Step six can only be used if the court is satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence: Garofoli at p. 1461; R. v. Shivrattan, 2017 ONCA 23.
[27] The summary must allow the accused to challenge the reliability of the informant information and the extent to which the affiant was full, fair and frank in addressing the Debot factors: Crevier, at para. 67.
[28] The Ontario Court of Appeal, while not yet dealing squarely with whether step six offends s. 7 of the Charter, has recognized that the procedure is a mechanism which seeks to balance competing interests at play whenever the Crown edits an affidavit: Crevier, at para. 89, Reid, at para. 85, and Shivrattan, at para. 65.
[29] Justice Watt in Reid stated as follows at para. 85:
The step six procedure attempts to balance conflicting interests. On the one hand, the interests of law enforcement, including the duty to ensure the protection of informers and preserve the near-absolute sanctity of CI privilege. On the other hand, the right of every person charged with a crime to make full answer and defence: See Garofoli, at p. 1458. The balancing is not a weighing of absolutes for, as we have already seen, neither the right to make full answer and defence nor CI privilege is absolute.
[30] Throughout the various steps in a Garofoli hearing, a balance is struck between the right of an accused to make full answer and defence, the interests of law enforcement and the near absolute privilege of a confidential informers. Such balancing is evidenced in the first instance with a redacted ITO being disclosed to defence and during leave applications to cross-examine affiants. This balancing of the accused's s. 7 Charter interests and informer privilege continues to be applied at the step six stage.
[31] In Reid, Justice Watt summarized the various steps of a Garofoli as follows, at para. 76:
As the Garofoli hearing commences, the reviewing judge will have a copy of the ITO, the warrant, and any materials filed in support of the application. When the ITO includes reference to information provided by a CI, that information will be redacted to guard against any breach of CI privilege. The record may become expanded by further information as, for example, by cross-examination of the author of the ITO. But cross-examination does not follow as a matter of right, an invariable component of the right to make full answer and defence. A requirement that the defence meet a threshold test before engaging in cross-examination, pursuing a specific line of inquiry, or eliciting evidence in support of a full answer and defence is neither unique to a Garofoli application nor anomalous within the criminal justice system: Pires; Lising, at para. 37.
[32] The ability to cross-examine an affiant is also circumscribed recognizing the important balance of the right to make full answer and defence and informer privilege. The onus is on the defence to establish a proper basis for the proposed cross-examination; that it will elicit evidence tending to discredit the existence of one of the preconditions for the authorization, the obvious being the existence of reasonable and probable grounds: Garofoli, at p. 1465; Pires, at para. 31; Crevier, at paras. 54-57.
[33] The reason that the test will generally leave just a narrow window for cross-examination is not because the test is onerous – it is because there is just a narrow basis upon which an authorization can be set aside: Pires at para. 40.
[34] While the constitutionality of step six has not been squarely determined by an appellate court, the Court of Appeal ruled that the leave requirement to cross-examine the affiant as part of the Garofoli process is constitutional in Pires.
Step Six and the Right to Make Full Answer and Defence
[35] In Crevier, Justice Rouleau concluded that judicial summaries along with other tools allow an accused to mount a sub-facial attack and challenge an ITO, at para. 77:
Despite not having access to the redacted information, the accused, using a well-crafted judicial summary as well as the disclosure received, the redacted ITO, and any cross-examination of the affiant and evidence tendered, will nonetheless be in a position to mount a sub-facial attack and challenge the adequacy of the ITO. The accused can, for example, highlight areas of omission for the reviewing court, attack the steps (or lack thereof) taken to corroborate the information received from the informer, and make arguments in the alternative and on general principles of informer reliability.
The Constitutionality of Step Six
[36] In Reid, the Court of Appeal was asked to find step six unconstitutional, however, given the Charter challenge was not argued at trial, the Court was not prepared to hear the application. Had a factual foundation been laid for the constitutional challenge they may have entertained it. The appeal then focused on the adequacy of the summary. The Court unanimously concluded that the summary "struck an appropriate balance between the right to make full answer and defence on the one hand, and the preservation of the near absolute nature of the CI privilege on the other." Reid, para. 95.
[37] However, the Court in Reid did say the following at paras. 49 and 50 with respect to the constitutionality of step six:
49 Third, to the extent that the proposed argument is grounded on a claim that the right to make full answer and defence trumps confidential informer privilege, such a claim is unsustainable. In a similar way, the invocation of the principles elucidated in Charkaoui, Re, 2007 SCC 9, [2007] 1 S.C.R. 350 (S.C.C.), is of little value in this context since that case makes it clear that s. 7 does not require a particular type of process but one that is fair in light of the nature of the proceedings and the interests at stake: Charkaoui, at para. 20.
50 Finally, the appellant invites a reassessment of a common law procedure put in place by the Supreme Court of Canada to deal with applications to exclude evidence allegedly obtained by a breach of s. 8 of the Charter. A part of the procedure - the conditions precedent to obtaining leave to cross-examine the affiant - has been held constitutionally sound under s. 7: R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 [hereinafter Pires], at para. 38. Besides, step six has received extensive analysis recently in this court without any suggestion of constitutional infirmity: R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305.
Summary of Analysis
[38] In summary, the following features of the step six procedure which were set out in Crevier, Reid, and J.(N.) lead me to find that it does not breach the applicants' s. 7 Charter rights.
[39] The step six procedure is not a hearing to determine the guilt or innocence of an accused. It is part of a pre-trial hearing to determine the admissibility of evidence.
[40] The standard of proof in a step six proceeding is not the standard at trial of "beyond a reasonable doubt." Rather, the hearing is to establish whether "the minimum standard required for authorizing a search and seizure was established in the ITO". The search warrant is presumptively valid: Crevier at para. 66.
[41] Whether or not a CI's information is reliable or even true does not presumptively invalidate the issuing of the warrant. However, information from a CI is not accepted carte blanche by a trial judge. That information must be assessed in the context of the Debot criteria to ensure that it is compelling, credible and corroborated. Further, information about the reliability of the confidential source, both positive and negative, must form part of the ITO: Crevier, at para. 69.
[42] An accused's right to make full answer and defence is not absolute, especially in the context of a hearing to determine admissibility of evidence stemming from a confidential informer. CI privilege is close to absolute. The only exception to the rule is innocence at stake. No exception exists for the right to make full answer and defence: Application to proceed in camera, Re, (2007) S.C.C. 43 [Vancouver Sun], para. 28.
[43] Step six can achieve the appropriate balance of an accused's s. 7 Charter rights and CI privilege when great care is taken in drafting judicial summaries. In appropriate cases, leave to cross-examine and the appointment of counsel would provide a further check and balance to the process.
[44] Crevier has given very detailed guidance in what should be included in judicial summaries: at paras. 83-85.
[45] It is clear as well that the Court of Appeal encourages that leave to cross-examine affiants be granted when a proper foundation has been laid: Crevier, at para 86.
[46] Unlike Charkaoui, the step six procedure of the Garofoli hearing permits a right of appeal.
[47] In addition, counsel may use the disclosure of the case, the cross-examination of the affiant where leave was given, a preliminary hearing where one was held, and evidence tendered to assist in mounting a facial and or sub-facial attack on an ITO. The defence can challenge the lack of steps to corroborate information. Very importantly they can and should argue in the alternative.
[48] The step six procedure also has the following integral safeguards designed to prevent an unjust balance of interests:
If the summary fails to provide sufficient information to the defence, the step six procedure will be disallowed, and the Crown will be unable to rely on the un-redacted affidavit in defence of the authorization: Garofoli at p. 1461.
Further, the trial judge can put little weight on summaries of redacted portions which make it impossible for counsel to make submissions about whether the information provided can meet the Debot criteria: Crevier at para. 88.
A redacted information which cannot be included in the summary (for instance because its mere inclusion in the summary could compromise informer privilege) will not be considered by the trial judge in determining the sufficiency of the un-redacted affidavit, Crevier, at para. 87.
A trial judge is permitted to tailor a procedure which best ensures the balance in a particular case.
In "particularly difficult cases" the trial judge's discretion extends to the appointment of amicus to assist in the consideration of issues relevant to confidential informants: R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, at para. 57; Shivrattan, para. 65.
Conclusion
[49] In the case before me, judicial summaries were provided along with additional summaries and further information during the course of submissions. The applicants were permitted to cross-examine the affiant. The defence had complete disclosure of the case. In addition, I was prepared to entertain an application for leave to cross-examine the sub-affiant, but counsel withdrew their application. I am satisfied that counsel is sufficiently armed to mount an effective challenge to the ITO.
[50] I am mindful that the step six procedure involves a balancing of competing interests primarily involving the accused's right to make full answer and defence, the right to know the case to meet, the right to challenge the admissibility of the evidence and the protection of police informants. I find in all the circumstances that this important balance was achieved in the context of the Garofoli hearing and that the step six procedure does not offend the principles of fundamental justice nor did the procedure breach the applicants' s. 7 Charter rights.
Released: June 27, 2018
Signed: Justice A. R. Mackay