WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) FAILURE TO COMPLY WITH ORDER

Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2019-04-15

Court File No.: Halton 18-504

Parties

Between:

Her Majesty the Queen

— And —

Devaine Nelson

Judicial Officer and Counsel

Before: Justice D.A. Harris

Heard on: March 26, 2019

Reasons for Judgment released on: April 15, 2019

Counsel:

• Maureen McGuigan — counsel for the Crown
• Craig Bottomley — counsel for the accused Devaine Nelson

Reasons for Judgment

Introduction

[1] Devaine Nelson is charged with six offences. Five allege that he was in possession of a handgun and the sixth alleges that he was in possession of marihuana. Crown counsel elected to proceed by indictment with respect to five offences. The sixth is an indictable offence.

[2] Mr. Nelson elected to be tried by a Superior Court Judge sitting with a jury and to have a preliminary hearing.

[3] At the commencement of that preliminary hearing he applied to cross-examine the affiant of the Information To Obtain (ITO) a warrant to search the residence where the gun and the marihuana were found.

Areas of Proposed Cross-Examination

[4] Counsel for Mr. Nelson seeks leave to cross-examine the affiant in the following areas:

(a) The obligation to corroborate Confidential Informant (CI) information;

(b) The steps taken to corroborate the CI information (or lack thereof);

(c) The route by which the second CI provided information (i.e. was it sheer happenstance that the CI happened to come forward with information about Mr. Nelson, or did the police reach out for information?); and,

(d) If the police reached out to the second CI, to what extent did that contaminate the information provided?

Legal Framework

The Garofoli Test

[5] The test for leave to cross-examine an affiant or informant during a trial is set out by the Supreme Court of Canada in R. v. Garofoli. A trial judge may grant leave to permit such cross examination if it is necessary to enable the defendant to make full answer and defence. A basis must be shown by the defendant that the cross-examination will elicit testimony tending to discredit one of the preconditions to the authorization, usually, the existence of reasonable and probable grounds. Relevance, materiality, the need to protect confidential informers and the need to avoid prolixity of proceedings are relevant considerations on the application.

Application at Preliminary Inquiry

[6] The Ontario Court of Appeal held in R. v. Dawson that the same procedure and threshold test for leave to cross-examine an affiant applies at the preliminary inquiry.

[7] Like Justice Duncan in R. v. On, I agree with the analysis of Justice Nakatsuru in R. v. McLean.

Distinction Between Preliminary Inquiry and Trial

[8] I also agree with Justice Duncan that the following points are relevant to the distinction between the application of the test at preliminary (Dawson) as opposed to trial (Garofoli):

(a) An accused at a preliminary does not make answer and defence. At most he prepares to do so for trial. The requested cross examination is for discovery purposes only. The accused's interests are less than where guilt or innocence is at stake.

(b) The purpose of a preliminary inquiry is to determine whether sufficient evidence exists to put the accused on trial. The discovery function is only ancillary to that purpose. The cross examination is not relevant or material to the central purpose of the preliminary inquiry proceeding.

(c) The preliminary inquiry justice has no Charter jurisdiction to make a relevant ruling on the sufficiency of the preconditions for the warrant or the admissibility of the evidence obtained. There is no jurisdiction to review or engage in the editing or summarization of the ITO as contemplated in Garofoli.

(d) As for prolixity, every Dawson application must be repeated at trial as a Garofoli application. Whatever the anticipated length of the leave argument and, if granted, the cross examination, it is doubled by the redundant Dawson application.

(e) The risk of identification of confidential informers is always present with cross-examination. Attempts to prevent such damage are notoriously fallible. Assuming the risk on two separate occasions is generally unacceptable when the only interest being served is that of discovery, particularly when the rewards are bound to be minimal if CI identity is properly shielded. In short, the proposed cross examination in aid of discovery is likely to be either dangerous to the CI or almost useless to the accused.

Competing Principles: Law Enforcement, Informer Privilege, and Full Answer and Defence

[9] With respect to the last point I note the opening comments in the Ontario Court of Appeal ruling in R. v. Crevier:

When an accused challenges a search warrant that police obtained using information from confidential informers, tension arises among three important principles or interests: the interest of law enforcement, the common-law principle of informer privilege, and the accused's constitutionally-protected right to make full answer and defence.

[10] The Court of Appeal elaborated on all three principles or interests.

Law Enforcement Interest

[11] Society has a strong interest in effective crime detection, gathering of evidence, and apprehension and conviction of criminals. Search warrants help accomplish these goals. They are tools of efficient and effective law enforcement, and thus enhance public protection.

[12] Provided the accused's right to full answer and defence is protected, an otherwise sufficient ITO should not, therefore, be found inadequate simply because of redactions made to preserve informer privilege. This would frustrate the utility of many search warrants and the interest of law enforcement.

Informer Privilege

[13] "Informer privilege is an ancient and hallowed protection which plays a vital role in law enforcement ... [and] is of fundamental importance to the workings of a criminal justice system." If police are to rely on informers and informers are to continue to supply needed information, informers must be protected from retribution from those involved in crime.

[14] The protection of informers is broad to ensure it is adequate. This protection prevents disclosure of "any information which might tend to identify an informer", including any information that might implicitly reveal his or her identity.

[15] Informer privilege is near absolute. The only exception is the "innocence at stake" exception. There is no exception for the right to make full answer and defence. To raise the "innocence at stake" exception the evidence must provide a basis for concluding that disclosure of the informer's identity is necessary to demonstrate the accused's innocence.

Right to Full Answer and Defence

[16] That said, the court must nonetheless uphold other principles, such as the right to full answer and defence.

[17] The right to make full answer and defence is one of the principles of fundamental justice and is constitutionally protected under section 7 of the Charter. It includes the right to full and timely disclosure, the right of cross-examination, the right to know the case to be met, and the right to be given an opportunity to challenge the admissibility of the evidence tendered by the Crown.

[18] Though fundamental, the right to make full answer and defence is not without limit. It is not "a right to pursue every conceivable tactic to be used in defending oneself against criminal prosecution". Precisely what an accused is entitled to in the exercise of the right will vary depending on the context and other competing interests at play. Other public interests may limit the accused's ability to access potentially relevant information.

Application to This Case

[19] All this is relevant in this case.

[20] The ITO has been redacted so as to remove several pages of materials pertaining to two CI's.

[21] What is left is clearly insufficient to justify issuing the warrant.

[22] I do not, however, have the jurisdiction as preliminary hearing judge to make that determination. That will have to be done by the trial judge.

[23] Counsel for Mr. Nelson argued that he wishes to cross-examine the affiant with respect to certain limited areas only and that he does not wish to obtain information that would identify a CI. He is fully aware of the privilege and will be asking nothing that would infringe upon it. Further, Crown counsel and I will be there to ensure that this is so.

[24] It is an interesting argument but runs contrary to statements from the Supreme Court of Canada and the Ontario Court of appeal which point out that it is virtually impossible for a court to know what details may reveal the identity of a CI and attempts to restrict the scope of cross-examination are notoriously fallible.

[25] A preliminary hearing is definitely not the best venue to embark on such an undertaking.

[26] The law is clear that the police informant privilege will prevail unless disclosure is required to demonstrate the innocence of the accused. An accused cannot claim that his or her innocence is at stake during a preliminary inquiry. Whatever the result of that proceeding, it will not be determinative of his guilt or innocence.

[27] It is of course very different before the trial judge.

[28] Further, the trial judge has at his or her disposal the sixth step in the procedure outlined in R. v. Garofoli.

Conclusion

[29] I am not satisfied that the proposed cross-examination will elicit testimony tending to discredit one of the preconditions to the authorization.

[30] I am satisfied that it might lead to disclosure of information which might tend to identify a CI.

[31] As for prolixity, I am satisfied that any cross-examination that I permit here must be repeated at trial as part of a Garofoli application and that the trial judge will be much better able to deal with the issues surrounding this.

[32] For these reasons, the application is dismissed.

Released: 15 April 2019

Signed: Justice D.A. Harris

Footnotes

[1] R v Garofoli, [1990] 2 S.C.R. 1421 (S.C.C.) per Sopinka J. at para. 88; see also R. v. McLean, [2012] O.J. No. 5321 (Ont.C.J.) per Nakatsuru J., as he then was, at para. 10; and R. v. On, [2015] O.J. No. 6226 (Ont. C.J.) per Duncan J. at para. 5.

[2] R. v. Dawson, [1998] O.J. No. 1039 (Ont. C.A.) per Carthy J.A. at para. 18; R. v. McLean, supra at para. 10; R. v. On, supra, at para. 6.

[3] R. v. On, supra, at para. 6.

[4] Ibid, at para. 7.

[5] R. v. McLean, supra at para. 32.

[6] Ibid.

[7] Ibid, at paras. 23 and 33.

[8] Ibid, at paras. 34 to 36.

[9] R. v. Crevier, 2015 ONCA 619, [2015] O.J. No. 5109 (Ont. C.A.) per Rouleau J.A. at para. 1.

[10] Ibid, at para. 44.

[11] Ibid, at para. 47.

[12] Ibid, at para. 48, quoting R. v. Leipert, [1997] 1 S.C.R. 281, at paras. 9 to 10; R. v. McLean, supra at para. 34.

[13] R. v. Crevier, supra, at para. 49; R. v. Leipert, supra at para. 18; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at para. 26.

[14] R. v. Crevier, supra, at para. 50; Named Person, supra at paras. 27 to 30; R. v. Reid, 2016 ONCA 524, [2016] O.J. No. 3554 (Ont. C.A.) per Watt J.A. at paras. 80 to 81.

[15] R. v. Crevier, supra, at para. 51.

[16] R. v. Crevier, supra, at para. 52; R. v. Reid, supra at para. 77.

[17] R. v. Crevier, supra, at para. 53; R. v. Reid, supra at paras. 78 to 80; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 64.

[18] R. v. Leipert, supra, at para. 28; R. v. Reid, supra at para. 82; World Bank Group v. Wallace, 2016 SCC 15, at para. 129.

[19] R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 34 at para. 36.

[20] R. v. Richards, [1997] 34 O.R. (3d) 244 (Ont. C.A.); R. v. McLean, supra at para. 34.