Court Information

Date: 2019-10-21

Toronto Region

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— And —

Tyrell Stewart & Alexia Richardson

Judicial Information

Before: Justice L. Feldman

Heard on: September 18, 19, 2019

Reasons for Judgment released on: October 21, 2019

Counsel

M. MacKinnon — for the Crown

A. Pinnock, J. Struthers — for the accused Tyrell Stewart

E. Rolfe — for the accused Alexia Richardson

Judgment

FELDMAN J.:

[1] Tyrell Stewart and Alexia Richardson are charged with a number of firearms offences arising from a search of their residence, where a Taurus 9 mm. handgun was seized, along with an over-capacity magazine. At the time, Mr. Stewart was subject to a Code s. 109 Weapons Prohibition Order. Officers from the Guns and Gangs Task Force entered the home on the basis a search warrant granted by a Justice of the Peace.

[2] Mr. Stewart and Ms. Richardson apply in a Garofoli hearing to have the evidence seized excluded because of what they allege is a breach of their s. 8 Charter rights. They say that the Information to Obtain (ITO) relied on to support the issuing of the search warrant was legally deficient, that is, there was insufficient "credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search…".

[3] The test for the reviewing court during what is a "pretrial, threshold evidentiary hearing" is "whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued". In effect, I cannot substitute my own view over that of the issuing justice.

[4] In assessing the information provided by the confidential source contained in the ITO, I must consider whether that information is compelling, credible, or corroborated by police investigation prior to the decision to conduct the search.

[5] In R. v. Greaves-Bissesarsingh, Justice Code clarifies the application of the Debot factors, at para. 35: "It appears from Wilson J.'s reasons in Debot, and from the subsequent jurisprudence, that 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. The term "credibility" would appear to capture considerations such as the informer's motivation, criminal antecedents, and any past history of providing reliable information to the police. The term "corroboration" refers to supporting information uncovered by the police investigation."

[6] In relation to these factors, weaknesses in one area may be offset by strengths in another. These are not discrete inquiries. Rather, it is in the "totality of circumstances" that the standard of reasonableness is determined.

[7] The ITO prepared here by the affiant police officer was heavily redacted to protect the identity of the confidential informant, vulnerable to retribution should his or her identity be even implicitly revealed by disclosure. The Crown concedes that there is insufficient information in the redacted ITO to justify authorizing the warrant.

The Judicial Summary

[8] Ms. MacKinnon, for the prosecution, asks that in the circumstances we proceed to an in-camera step six process in which I will initially review, absent defence counsel, the unredacted ITO relied on by the issuing Justice of the Peace. I will have the opportunity to question her with regard to the content of a judicial summary she has prepared to determine if more information can be safely disclosed. I have done so and am satisfied with the answers I have received. Subsequently, I heard submissions from counsel on the information in the summary they suggest was lacking in relation to satisfying the Debot factors and in assisting them in asserting their clients' right to make full answer and defence.

[9] In R. v. Reid, Justice Juriansz characterized the content of the judicial summary as general, not detailed. He said, "it must provide an accused with a meaningful basis on which to challenge whether the author of the ITO made full and frank disclosure of the Debot factors relating to the confidential informant". It need only make the defence aware of the nature of the redacted material, not its substance.

[10] I permitted release of a revised judicial summary, with additions made on consent of the Crown. Some of the information provided by the confidential informant that is contained in the summary relates to the credibility and reliability of the informant and includes whether this source has a criminal record or outstanding charges; his or her motivation; the number of occasions the source provided information to the police and whether or not the investigation resulted in seizures and led to charges.

[11] As well, in relation to the question of the compelling nature of the information, the summary includes, in part, the following significant details that speak to the character of the redacted material: the dates information was provided to the handler; that the most recent information was within one month; details as to how the informant knows Mr. Stewart and that the latter's nickname is 'Cinco', who is a rapper and makes videos; that Cinco has a brother 'BT'; details of Cinco's firearm possession within one month, where it was, whether the possession was once or more than once and how that information was obtained; that Cinco is staying at 35 Durant Cres. and is connected to 7 Portrush Cres., his mother's home, including details of that knowledge; that Cinco has driven a Honda Accord; that he is involved in the sale of cocaine and firearms, including details of that knowledge; and that the informant is associated with persons involved in criminal activity.

[12] Corroborating information is scant and includes observation of Mr. Stewart driving the Honda, details regarding one of the addresses, and two positive and two negative features of the informant. The Crown submits that urgency in removing firearms from the community helps explain a seemingly truncated investigation. There is some logic in that claim.

[13] I am satisfied that the judicial summary sufficiently informs the defence of the nature of the redacted material and speaks in a general way to the credibility of the informant, the reliability and compelling nature of his or her information and any corroboration, in this way allowing the accused "to mount a challenge to the redacted material by argument or challenge". Given this finding, it is open to the court to consider the unredacted ITO in determining whether the issuing justice could have found reasonable and probable grounds that an offence was committed by the accused.

[14] I am mindful that it remains difficult, absent the redacted portions, for the defence to contest the sufficiency of the ITO. Nonetheless, the authorities suggest that the defence is not without resource. It may use a combination of the judicial summary, any disclosure, the redacted ITO, cross-examination of the affiant and evidence tendered to "mount a sub-facial attack and challenge the adequacy of the ITO". The applicant can, in this way, "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".

Cross-Examination of the Affiant

[15] The defence was provided an opportunity to conduct a limited cross-examination of the affiant. Its focus was on what it suggests were wilfully misleading statements by the affiant that were prejudicial and intended to bolster thin corroboration of the confidential source's information. Aspects of the officer's testimony were troublesome.

[16] D.C. Canning chose to include information regarding 24 interactions between the police and Mr. Stewart. There were no details provided. He made no effort to take out benign or prejudicial information, for example, that 22 of the "hits" were at a time the applicant was a youth, information that by law ought not to have been disclosed. Ostensibly included to connect the applicant to 7 Portrush, D.C. Canning conceded he had other means of doing so and gave little or no thought to its prejudicial effect. That indifference somewhat diminishes the fairness of this officer's product. This information was excised from the ITO.

[17] Less impressive was his inclusion of Mr. Stewart having been investigated in a domestic occurrence over access at 35 Durant Cres that involved Ms. Richardson, her child and the child's father. That was factually wrong. It was prejudicial and an irresponsible mistake. It was excised.

[18] More troubling was that the officer included information about Mr. Stewart having been arrested in 2013, following a search for drugs by the Guns and Gangs Task Force. P.C. Canning did not disclose that the charges were withdrawn. It was neither frank, nor fair to omit this material information, although as Ms. MacKinnon notes, the issuing justice would be aware there was also no indication of a conviction. In his evidence, the officer claimed this information was used for the purpose of linking the applicant to 7 Portrush. He had other means of doing so. This was unnecessary and prejudicial. It was also careless and irresponsible. The officer ought to have known better. The information was excised.

[19] The defence also challenged the use of Mr. Stewart's criminal record for theft and assault. It has limited relevance but suggests questions of character. I am inclined not to exclude it but to give it little weight.

[20] Ultimately, on all the evidence, the court need inquire into "whether there was any basis on which the authorizing judge could be satisfied that the relevant pre-conditions to issuing an authorization or warrant existed". This would include consideration of the unredacted portion of the ITO to determine if the information provided by the confidential informant satisfied the Debot factors.

[21] I have reviewed information in paragraphs 1, 2 and 5 of the unredacted portion regarding the credibility of the informant that is detailed and specific. Paragraph 9 contains full and specific detail with regard to the reliability of the source in the past. I am satisfied that on the question of the informant's credibility and reliability, the information provided meets the Debot standard.

[22] With regard to whether the information of the source is compelling, particularly concerning how he or she knows Mr. Stewart and for how long, information about the applicant's firearm possession, including location and how often and information about his residence and use of cars. This is referenced in paragraph 33 of the judicial summary and set out in significant detail in paragraphs 1-56 of the unredacted ITO. This degree of detail would also satisfy the Debot standard in this regard, as amplified in Greaves-Bissesarsingh.

[23] The corroboration is weak in terms of linking the applicant to residences and cars, but is compensated for by the informational strength in the other two factors. I am satisfied that after the excisions noted earlier, there remains sufficient reliable evidence that would support the issuance of the search warrant.

Residual Discretion

[24] The applicants submit that the tendering of prejudicial information by the affiant was wilful, intended to mislead and threatened the integrity of this process, warranting the quashing of the search warrant. In R. v. Paryniuk, Watt J.A. explained that the authorities supported such a remedy where the affiant has included "irrelevant and improper references in an ITO", conduct that "has been so subversive of the search warrant process as to, in effect, amount to an abuse of process and require that the warrant be quashed". This conduct would include non-disclosure or misleading disclosure. Justice Watt was of the view that subversion or corruption of the pre-authorization process may, depending on the circumstances, be an abuse of process for which there is a residual discretion in the court to act.

[25] On the issue of the use of residual discretion, this is a close case. The "hits" were irrelevant. It was irresponsible of the affiant to include them without taking the time to assess their worth. That he would insert a mistaken fact about the applicant having been investigated in the domestic case is careless and unimpressive. To not indicate charges were withdrawn in 2013 indicates indifference to the officer's obligation to be careful to avoid prejudicing the Justice of the Peace and maintaining a principled approach to his work. By these choices, the affiant has raised questions about his judgment and brings a degree of discredit to his work.

[26] Nonetheless, I am not persuaded that in the context of the entirety of the evidence, in relation to which I am satisfied that two of the Debot factors were amply met, the prejudice occasioned by the officer's inclusions rises to the level of an abuse of process requiring a setting aside of the warrant. In the result, the s. 8 application is dismissed.

Released: October 21, 2019

Signed: "Justice L. Feldman"