Court Information
Ontario Court of Justice
Date: September 3, 2020
Court File No.: Brampton 19-10750
Parties
Between:
Her Majesty the Queen
Respondent
— and —
Shawn Downey-Smith
Applicant
Before the Court
Justice: M.M. Rahman
Heard: July 28, August 6, and 10, 2020
Reasons for ruling released: September 3, 2020
Counsel
R. Alexander Cornelius — counsel for the respondent
Elizabeth Bristow — counsel for the applicant
Judgment
RAHMAN J.:
1. Introduction
[1] The applicant, Shawn Downey-Smith, is charged with seven firearm-related offences. He applies to this court for an order excluding evidence seized during the execution of a search warrant on a home at 21 Graham Crescent in Brampton.
[2] The applicant says that the search warrant ought to be set aside because it does not contain sufficient grounds. The applicant argues that the search warrant's information to obtain (ITO) is replete with inaccurate statements and improper generalizations and opinions. The applicant also says that the affiant's testimony during cross-examination demonstrates that he was not being truthful when he said he independently confirmed information that he had been given about the confidential informer (CI). The applicant says that after this court disregards the misleading and inaccurate statements the remaining information would not support the issuance of the warrant.
[3] The Crown, respondent, argues that although the warrant may not be perfect, and could have contained more information, the grounds contained within it are sufficient to pass the narrow review that this court must perform. The respondent says that the CI is credible and that the information that the CI provided is compelling. Though the respondent acknowledges that there is no real corroboration of the CI's information, the respondent's position is that the warrant could have issued without it. The respondent also disagrees that there are any misleading or inaccurate statements or generalizations in the ITO. The respondent says, to the extent that there are some inaccurate statements in the ITO, they were apparent to the issuing justice.
[4] I find that the applicant has failed to show that his s. 8 rights were breached. Despite a number of deficiencies in the ITO, there remains a basis on which the issuing justice could have issued the warrant.
2. The Section 8 Application
[5] Before dealing with the sufficiency of the ITO itself, I will deal with the additional evidence called on the voir dire that expanded the evidentiary record beyond the ITO and written application record. Because the applicant alleges that the affiant gave contradictory answers during cross-examination, and challenges his credibility based on those answers, I will provide some details about the affiant's testimony, including the actual answers that he gave when cross-examined.
2.1. The Affiant's Cross-examination
[6] The applicant had applied for leave to cross-examine the ITO's affiant, Cst. Jeff Gardner, on five different areas. I granted leave to cross-examine on one of those areas, specifically the affiant's assertion about the CI's past reliability. Though much of the information under the heading "Reliability of the Confidential Source" has been redacted, the applicant's cross-examination was mainly directed at two assertions that were under this heading. The assertions, as disclosed to the applicant in the judicial summary, are set out below (the portions taken verbatim, and unedited, from the ITO appear in quotation marks, just as they do in the judicial summary):
"The confidential source is registered with [police agency] and has been successfully [used in the past]. The information provided by the source has proven to be very accurate and has been corroborated by police investigation."
"The confidential source has provided information which has been used to obtain [number] of search warrants," leading to the seizure of contraband.
[7] Applicant's counsel, Ms Bristow, cross-examined Cst. Gardner about his sources of information for the CI's past assistance, and whether he independently confirmed any of the information. Cst. Gardner said that the CI's handler was his source of information for the particulars of the CI's past assistance, including the number of times the CI had provided information. He testified that the CI handler gave him specifics of the CI's past information. That information was communicated orally. Cst. Gardner also said that he did not ask the CI's handler any question about the information the handler provided, nor did he review the CI's file himself.
[8] When asked how he corroborated the information the CI handler gave him, Cst. Gardner said that he did checks through computer databases to confirm the information. He said that his checks consisted of checking all the occasions he had been told by the handler that the CI had provided assistance. Cst. Gardner said that he did not check the specifics of the information against any database. Rather, he simply checked the database to confirm whether a particular thing had been seized that the CI had provided information on. In answer to a question from the court, the officer confirmed that, if the CI had provided information that an apple was hidden in a bedroom, he would have confirmed that an apple had been seized but not that it had been located in the bedroom.
[9] The applicant alleges that Cst. Gardner was inconsistent on whether he, himself, independently corroborated the CI handler's information through computerized checks. The applicant says that Cst. Gardner initially testified that the CI handler was his only source of information, and that he did not mention doing any computer checks. As the cross-examination progressed, Cst. Gardner included the fact that he had done computerized database checks to corroborate the information that the CI handler had given him. When applicant's counsel, Ms Bristow, asked Cst. Gardner why he had originally said that the CI handler was his only source, he said that he did not understand "the totality of the question" and that he was making sure he did not say anything that would reveal the identity of the CI.
[10] Ms Bristow says that, Cst. Gardner's failure to initially mention the computerized checks is telling and suggests that he did not conduct them. Ms Bristow relies heavily on the fact that, when confronted with his failure to mention the computer checks initially, Cst. Gardner said that he was concerned about identifying the CI. She says that answer does not make sense because Cst. Gardner was not otherwise reluctant to alert the court when he was concerned his answer might breach informer privilege. Ms Bristow says that the court should conclude from his answers, and the explanation he gave for his initial incomplete answer, that Cst. Gardner was not telling the truth about corroborating the CI handler's information through computer checks.
[11] I cannot find that Cst. Gardner's answers show he was being untruthful. After reviewing the entirety of his cross-examination, it does not seem to me he was being untruthful or that his answers were inconsistent. I also do not find that his answer about trying to protect privilege was simply an excuse he made after the fact for answering the earlier questions the way that he did. To understand my reasoning, it is helpful to set out how the cross-examination actually unfolded.
2.1.1. How the cross-examination unfolded
[12] When the affiant initially took the stand, it was revealed that he had not reviewed the ITO's most recently disclosed Appendix D, nor had he reviewed the judicial summary. Both of those documents revealed much more information than the originally disclosed versions of those documents. After asking some initial questions about his notes, Ms Bristow asked the applicant the following questions about the source of his information about the CI:
Q. You received information about the CI's past information that they had provided previously?
A. Correct.
Q. Was the information that you received about the past information only from the handler in this case?
A. Correct.
Q. So you didn't receive information from the confidential informer themselves about their past history?
A. Correct.
Q. You didn't look at or investigate further the confidential informer's past history on your own other than what the confidential informant handler had said to you, right?
A. [after pausing a few seconds] Uh. Correct.
Q. I understand that could be a little bit confusing, why don't I ask that in a more clear way. The only way that you had received info about confidential informer's past history in terms of providing information and it being accurate was through the handler?
A. That is correct.
[13] I pause here to note that these were the first questions put to Cst. Gardner whether he had done his own checks or his own investigation. To be fair, the first question asked whether Cst. Gardner looked at or investigated the informer's history on his own. I appreciate that this question could be read as asking whether the officer performed checks. However, the way the question is worded, it can also be understood as asking whether the officer looked further into the informer's past. Ms Bristow quite fairly acknowledged that the first question was confusing. When she re-asked the question, she phrased the question in the passive voice, asking about the only way the officer "had received information." Again, one reading of the question is that it is directed at all the places from which the affiant received information about the CI's past history. However, the use of the passive voice about what information the officer "received" could be understood as asking what information someone else provided to him, as opposed to what active steps he took himself. The issue came into sharper focus later during the cross-examination.
[14] Ms Bristow continued to seek clarification from the officer about his sources of information. In the next series of questions, she asked Cst. Gardner about whether he asked the CI's handler any questions about the information the handler provided:
Q. So is it fair to say you personally did not review the confidential informer's file?
A. I did not.
Q. Without disclosing any dates or number of dates or number of times information was provided in the past, did you inquire about that information from the handler?
A. Sorry specifically?
Q. [Counsel clarified she was not asking for specific dates] Did you make any inquiries with the handler about those numbers?
A. No I did not.
Q. So specifically when I'm speaking about numbers you didn't ask any questions about the number of times?
A. I can't answer that question, to give you the answer you're looking for I can't specifically I'll apologize.
Q. Are you saying that you can't advise as to whether or not you asked the handler about that information?
A. I was provided information regarding accuracy and number of times however I didn't specifically ask.
Q. So information was provided to you but you didn't ask further questions?
A. Correct
Q. You just took what the handler had told you about accuracy and number of times for what it was worth?
A. Correct.
[15] The final question and answer in this excerpt (in bold) come at the end of a series of questions about whether Cst. Gardner asked the CI's handler further questions. In fairness, I did not understand Ms Bristow to suggest that this last answer was inaccurate or untruthful, but it is worth including to understand the context of all the questions and answers on this topic.
[16] Ms Bristow continued her cross-examination, and probed exactly what information Cst. Gardner had been given.
Q. And so, again not getting into details about times or dates, were dates provided to you, date or dates, provided to you about when past information was provided?
A. I was given a specific outline of previous information as to the specifics of that information I cannot.
[The affiant is asked whether the handler provided the information orally or in writing and the affiant said it was provided orally.]
Q. Orally were you told about the date or dates of past information that was provided?
A. I was given specifics regarding past information
Q. It's fair to say that you didn't do your own investigation into date or dates to confirm what the handler had told you?
A. I can't answer that accurately, sorry, without revealing specifics
[17] The final question and answer (in bold) is the first time in the cross-examination where Cst. Gardner was asked directly whether he did his own investigation. He was clearly concerned that his answer might breach informer privilege, even though it would not have. At this point in the cross-examination, Crown counsel asked that the officer be excluded. Again, it is important to note that the officer did not have the most recent version of the judicial summary and would not have been aware exactly how much information the defence had. After a brief exchange between the court and counsel (in the officer's absence) to determine exactly what counsel was trying to ask, the officer returned and Ms Bristow continued her cross-examination.
Q. Other than the information that the handler had given to you orally, you didn't check anywhere else on your own, for information?
A. Um, I corroborated some information, but I didn't check.
Q. Sorry you said you corroborated?
A. Correct.
Q. Specifically with respect to the source's past information that's what I'm referring to?
A. Yes
Q. Just so that I'm clear on your answer, you indicated that the handler orally gave you some information about the source's past use or past information provided and you corroborated some of that information?
A. Correct
Q. After the handler provided you oral information, did you ask any other questions of the handler in regards to the source's past information?
A. I did not.
Q. Just a moment ago when I was asking you questions I had asked you about the information you received about the confidential informer's past information, that the only source of that was the handler. Do you recall saying that?
A. Yes
Q. Before you had stepped out I had asked you about information you received about confidential informer's past information and you indicated that your only source of that was through the confidential informer's handler themselves?
A. Correct
Q. And then since you've come back into the room, I've asked you about information received from the handler orally about the past information and if you did anything else to check and you said you corroborated that information or corroborated some of the information?
A. Correct.
Q. So…did you corroborate through handler again since it was your only source of information?
A. Yes and I have uh, I could. I can't I don't want to, I don't know if I, there's specifics, I could source it through, previous info I could source through, they're sourced from the handler and you're able to check that source.
Q. I'm having a little difficulty understanding. I understand you're being very cautious.
[Ms Bristow explains to affiant what information is public.]
Q. When you say there was a way you could corroborated that information…is that an oral task or a computerized task?
A. I, both, I did both.
Q. And so if it's the handler providing you the oral information…where does the computerized source come in?
A. [Slight pause] The previous information has occurrence numbers attached to it so I can verify that the information is gleaned that result from the occurrence.
[18] At this point in the cross-examination, because I noticed that Cst. Gardner appeared to be concerned about answering questions that might breach informer privilege, and because it was creating a barrier to Ms Bristow's cross-examination, I suggested a short break to allow him to review the judicial summary so he was fully aware what information had been revealed. After the break, Ms Bristow resumed her cross-examination by again confronting the officer with what she considered were inconsistent answers. It is the following exchange that Ms Bristow relies on to suggest that Cst. Gardner was not being candid with the court.
Q. The difficulty I'm having, officer, is that you previously had indicated that the handler was your only source of information with respect to past information provided for the confidential informer and now you're indicating that there were also searches done or computerized ways that you were able to verify the information. So when I asked you previously if the handler was your only source of information, why didn't you also include that there was computerized sources of information as well?
A. I'm sorry maybe I didn't understand the totality of the question
Q. You didn't understand the question when I asked you were there any other sources of information you used?
A. Yes I was making sure I wasn't revealing anything that would provide any indication regarding the source.
[19] As mentioned above, Ms Bristow urged the court to find that the officer was not being truthful in his testimony because he invoked the rationale of trying to protect informer privilege for what she says were his incorrect answers about his sources of information. She argues that the final answer above (in bold) was a made-up justification, and that it was not the real reason that Cst. Gardner answered earlier questions the way he did. As I explained earlier, I cannot accept this submission.
[20] It is evident from the excerpted cross-examination that, when asked directly if he did his own investigation, he initially did not answer because he was concerned about "revealing specifics." In light of that answer, I cannot find that this was a late-breaking justification. It was not late-breaking at all. It was also given at a point in his testimony where he did not know the full extent of the information that had been disclosed to the defence in the most recent judicial summary. Further, Cst. Gardner's comment (in the first answer in the last excerpt, above) that he did not "understand the totality of the question" about whether the CI's handler was his only source of information, was a fair answer. As I have explained above, the questions put to him were capable of more than one meaning, when read in context. I find it apparent from his answers that he did not understand the earlier questions about whether the handler was his only source to also be directed at whether he had done anything to corroborate the information. The questions were not explicit enough in asking him directly what he did (as opposed to asking him what he received). In saying that, I am not being critical of Ms Bristow's cross-examination. It was apparent that she was trying very hard to formulate her questions carefully to both get the information she wanted while respecting the limits that had been placed on her cross-examination to protect informer privilege. However, as I have explained, given the ambiguity in some of the questions, and the way the cross-examination unfolded, I am not prepared to find that Cst. Gardner was untruthful in his answers.
2.2. Does the ITO Contain Sufficient Grounds?
[21] The applicant's attack on the search of 21 Graham Crescent is focused only on the adequacy of the information in the ITO. The applicant acknowledges that if the ITO provides sufficient grounds then the search was reasonable.
[22] The Crown relies on the redacted, privileged portions of the ITO in its defence of the warrant. Consequently, the review of the warrant followed the so-called Step 6 procedure set out in R. v. Garofoli. The applicant took no issue with the adequacy of the judicial summary, so the Crown was able to rely on the entirety of the ITO in defending the warrant.
[23] Because my reasons are based on a review of the unredacted ITO, I must refer to some of the redacted portions of the ITO in these reasons. On occasion, I have kept my comments quite general and purposely not been as specific as I might otherwise have been. Where it is necessary for me to refer to redacted portions of the ITO, or otherwise refer to privileged information, I have indicated that I have made a redaction. I have tried to keep editing to a minimum so that it is clear why I have decided this application as I have. The publicly available version of these reasons will have those redactions. The full, unredacted reasons will be sealed and placed in the court file. The Crown will also receive a copy of those unredacted reasons.
2.2.1. Parties' Positions
2.2.1.1. Applicant's Position
[24] The applicant says that the ITO does not contain sufficient grounds to justify its issuance. Ms Bristow takes aim at several alleged deficiencies in the ITO.
[25] First, she argues that the identification process used here – a single photo shown to the CI – is inherently unreliable, and that the police should have used a properly constituted photo line-up.
[26] Second, Ms Bristow says that the affiant ought to have advised the issuing justice that he knew of a second address associated to the applicant. That address is listed in the affiant's notes as an address associated to the applicant, and she says that advising the justice about it may have impacted the grounds to search 21 Graham Crescent.
[27] Third, Ms Bristow alleges that the affiant's assertion that people tend to retain firearms for long periods is an inflammatory statement, and the affiant provided no source for this opinion. Moreover, she argues that the affiant made no mention of people storing guns at locations other than their residences (such as stash houses), and that the failure to mention this made the affiant's opinion evidence misleading.
[28] Fourth, Ms Bristow argues that the CI's tip is not credible because there is no indication that the CI was cautioned about the consequences of providing false information. The failure to caution the CI meant that there was no downside to the CI providing false information. There is also no mention whether the affiant inquired into whether the CI may have had any animus against the applicant.
[29] Fifth, she argues that the history of the CI's past performance is both lacking in detail and is misleading. She argues that the ITO in this case misstates or overstates the CI's reliability because all the affiant did was confirm whether or not the contraband seized under various warrants was the same as what the CI said would be found. Ms Bristow says that this is a far cry from describing the information as having proven to be "very accurate" or having been corroborated. The affiant twice asserts in the ITO that the CI proved to be reliable and that the CI's information had been corroborated, despite the fact that the affiant had not independently verified that the information in the CI's past tips had been reliable. Ms Bristow says that, by not explaining how the information had been corroborated, the affiant effectively usurped the issuing justice's role to determine whether there was sufficient corroboration. The ITO also does not mention if the CI's assistance led to convictions. Moreover, even if the court accepts that the affiant in fact did his own checks to ensure that the CI's past tips led to seizures, those efforts did not constitute corroboration or verification of the CI's past information.
[30] Finally, Ms Bristow notes that there is no independent confirmation or corroboration of the CI's information. She observes that there are two bald assertions that the information had been corroborated without providing any details. She also points to the fact that the affiant asserted that police surveillance had corroborated the tip despite the absence of any information in the ITO about what police observed during that surveillance. Significantly the police said nothing about seeing the applicant at the residence.
2.2.1.2. Respondent's Position
[31] Crown counsel, Mr. Cornelius, argues that the warrant could have issued based on the information in the ITO, despite some deficiencies. Mr. Cornelius acknowledges that the ITO suffers from some shortcomings and that the police could have included more information, or used language more precisely. However, he says that the ITO still provides ample basis to support the issuance of the warrant.
[32] On the issue of identification, Mr. Cornelius says that the frailties of identification evidence do not have the same relevance they do at a trial. The police are seeking to establish the low threshold of reasonable grounds, not trying to prove guilt beyond a reasonable doubt. The issuing justice would have been aware of the relative weakness of such an identification. Moreover, there is other information supporting the CI's identification in the redacted part of the ITO. Mr. Cornelius notes that the affiant was not required to independently verify the CI's information. Mr. Cornelius accepts that the information about corroboration of the CI's past performance is "sparse," but he says that it is enough and that it is not so deficient or misleading that the court cannot rely on it.
[33] Regarding the lack of a caution, Mr. Cornelius submits that, though the CI's credibility might have been strengthened with a caution, a caution is not a legal requirement and its absence does not make the CI less credible. Mr. Cornelius says that the tip is sufficiently compelling because it provided sufficiently detailed information that took the police from knowing nothing to knowing something and being directed to a specific place.
[34] Finally, regarding the issue of corroboration, Mr. Cornelius fairly acknowledges that there is little if anything in the ITO that could be considered as corroborative of the tip. He notes that the issuing justice is presumed to know the law, and would have appreciated that corroboration was lacking.
[35] In conclusion, though Mr. Cornelius acknowledges that the ITO could be better, he says that it contains sufficient information that a justice could have issued it. He argues that the combination of a credible informer and a compelling tip provided a basis for the issuing justice to conclude that there were reasonable grounds to believe that there was a handgun at 21 Graham Crescent.
2.3. Analysis
[36] An accused who complains that the police unconstitutionally searched his home, because of an improperly issued warrant, is not entitled to a robust judicial review of the warrant application. A trial judge reviewing an investigative order works "within a narrow jurisdictional compass." The reviewing judge does not engage in a de novo review of the ITO, nor does the reviewing judge substitute her own view for that of the issuing justice. As Watt J.A. observed in R. v. Sadikov, "the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued." Because judicial orders are presumptively valid, the applicant bears the burden of showing that the ITO is insufficient and could not have been granted.
[37] In addition to this deferential standard of review, Garofoli reviews tend to be forgiving of police when they state things inaccurately or falsely when swearing an affidavit or ITO in support of a warrant application. Inaccurate statements in ITOs do not provide a basis, on their own, to set aside a warrant, or find that the police acted in bad faith or had an intent to mislead. Since the Supreme Court's decision in Garofoli, courts have emphasized that fraud, non-disclosure, and misleading evidence are not determinative of the warrant's validity. A trial court has a residual discretion to set aside a warrant if the ITO contains false or misleading statements, but only if those statements subvert the pre-authorization process. Otherwise, false, misleading, or inaccurate statements are simply excised, and the trial court examines the remaining information to see if there remains a basis on which the warrant could (not would) have issued.
[38] A trial judge reviewing an ITO must take a "common-sense and holistic approach" and decide whether there is "sufficient 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."
[39] Because the ITO in this case is based on information provided by a confidential informer, this court's review of whether there is sufficient credible and reliable evidence must consider the so-called "three Cs" referred to in R. v. Debot. Both the issuing justice and the reviewing court, consider the credibility of the informer, whether the tip is compelling, and whether the tip is corroborated. The informer's information need not provide a strong case on all three of these criteria. Reasonable grounds must be assessed against the totality of circumstances. Weakness in one area may be compensated for by strength in another.
2.3.1. General Observations About the ITO
[40] Before explaining my reasons for finding that the warrant survives the Garofoli review, I will make a few comments about the ITO and its deficiencies.
[41] First, the form of the ITO leaves a lot to be desired. There are no page or paragraph numbers. With one exception, the headings are not highlighted in any way. That lack of highlighting could make it appear that some of the headings are actual statements of fact that the affiant is relying on (one example: "The [source] handler has reviewed this application and acknowledged its contents as being a true and an accurate reflection of the information provided."). I appreciate that the affiant was likely working from a precedent that was meant to ensure that he properly addressed certain topics. However, the failure to highlight these topic headings may have the effect of misleading the issuing justice. It is sloppy and reflects an attitude of carelessness on the affiant's part.
[42] Second, the substance of the ITO, including the language the affiant uses, is problematic. As I will explain further below, the affiant relies on boilerplate and the repeated use of ritualistic phrases. The affiant repeatedly mentions that information has been corroborated or verified without giving many (or any) details or without explaining what has been corroborated. The word "corroborated" appears many times in the ITO without any explanation how something has been corroborated. The affiant also uses conclusory statements to provide corroboration, without explaining the evidence or information those statements are based on. As I explain below, because of the limited (and very forgiving) nature of search warrant review, these deficiencies do not ultimately render the warrant invalid, because the issuing justice could have issued the warrant. But if this warrant application had been presented to me, I would not have issued it.
2.3.2. The Warrant Could Have Issued
[43] I agree with the Crown that, despite the lack of corroboration, the ITO presents sufficiently credible and compelling information on which a justice could have issued the warrant. Again, given the very limited nature of the Garofoli review, this warrant application passes muster.
2.3.2.1. CI's Credibility
[44] The ITO establishes that the CI in this case was credible. This is not a case where the police were using an anonymous or untested informer. Rather the CI here had been used on other occasions. And the CI's use on other occasions had led to the seizure of contraband. It would have been open to the issuing justice to conclude that the CI was a credible informer based on the following:
(1) The CI was a registered informer with a police agency.
(2) The CI had provided information on [redacted] previous occasions that had led to the seizure of specified contraband.
(3) [Redacted]
[45] The fact that the police could have provided more details about the CI does not detract from the information that is in the ITO. It is quite possible that, had the police included more information, it would have enhanced the CI's credibility.
[46] The ITO sets out information that detracts from the CI's credibility. In my view, even taking into account that information, the issuing justice could have found that the CI was credible.
[47] In finding that there was a basis to find the CI credible, I agree with the applicant that there were some problems with the affiant's language. I agree with Ms Bristow that the affiant's use of the phrase "proven to be very accurate and corroborated by police investigation" is problematic, since it may have suggested that the CI's information had been verified in other ways apart from being used to obtain previous warrants. It shows the problems that arise when police simply repeat boilerplate phrases that they think should appear in the ITO. However, even taking the bare information that is present – that the CI's information had been used in the past to obtain warrants used to seize contraband – the ITO established some degree of credibility. I also see no need to explain whether convictions were obtained based on search warrants that the CI helped with. There was also no need for the affiant to go further and detail whether the CI's information was instrumental in obtaining the previous warrants, or whether the CI was the only informer to provide information for those warrants. There was no need for the affiant to go as far as independently verifying whether every detail of the CI's previous tips had been accurate. There was also no need for the affiant to do an independent investigation of the information he had been given by the handler, so long as the handler provided him with the required information. The bottom line is that his statement about the CI's past history, though not detailed, was not incorrect. A CI's information can be considered corroborated if the CI says that a certain item of contraband will be found in a place and it ends up being seized at that place.
[48] I also agree with Ms Bristow that the CI should have been cautioned about the consequences of providing false information. That caution would have strengthened the CI's credibility. But the absence of any such caution does not mean that the CI is not credible, and the absence of a caution here does not detract from the CI's credibility. Moreover, the absence of any reference to a caution in the ITO would have been apparent to the issuing justice. Thus, any concern about the CI having no downside risk, and potentially providing speculative information to the police, would have been clear to the issuing justice.
2.3.2.2. The CI's Tip was Compelling
[49] The CI's tip in this case can be described as compelling, although not very compelling. The ITO describes aspects of the tip that could have supported a finding by the issuing justice that the tip was compelling.
[50] [Redacted]
[51] To be sure, the tip in this case could have been more compelling [Remainder of paragraph redacted].
[52] Even though the tip could have been more compelling, it had enough aspects of a compelling tip that it qualifies as compelling.
2.3.2.3. Lack of Corroboration
[53] I agree with the Crown's concession that there is no corroboration of the CI's tip. The affiant purports to corroborate the tip, but only does so with a one-sentence bald assertion of fact, without explaining any of the details that support that assertion. It is for that reason that the Crown can only rely on two of the three Cs in attempting to uphold the warrant.
[54] I should also note that the affiant quite carelessly commented that the police had corroborated aspects of the tip by doing surveillance on 21 Graham Crescent. As Crown counsel acknowledged during submissions, there was no aspect of the CI's tip that had been corroborated by police doing surveillance. Because I find that there is no corroboration, this misstatement is of no consequence. It also would have been apparent to the issuing justice that the ITO contained no information that the police had corroborated through surveillance. There were no details of surveillance included at all in the ITO. As I said above, had this warrant application been presented to me, I would have rejected it. This very obvious defect is one of the reasons. An issuing justice reviewing an ITO should take some steps to ensure that the assertions the police make about corroborating the CI's tip actually line up with what the ITO says about that tip. While there may be an innocent explanation for such a discrepancy, it is not something that an issuing justice should overlook. The police were seeking authorization to go into someone's home. I appreciate that the presence of guns may create a sense of urgency that some other crimes may not. I also appreciate the frequent admonition that police officers are not legal draftspersons, and that search warrant applications should be reviewed with that caveat in mind. But a search warrant for a dwelling authorizes a serious invasion of privacy. As in this case, it may involve the forced and dynamic entry into that home. Search warrant applications should not be approved unless they show a degree of care that a reasonable person would expect from the state when it seeks to forcibly enter someone's home.
[55] Before dealing with my conclusion on the sufficiency of the ITO, I will address the other arguments Ms Bristow made that touch on the lack of corroboration.
[56] First, regarding the identification procedure used here, I cannot agree with Ms Bristow that it affects the grounds to issue the ITO. I agree with Mr. Cornelius that showing the single photo in these circumstances does not render the CI's identification inherently unreliable. The identification in this case is not like one taking place at a trial. The identification made was only for the purpose of establishing reasonable grounds. Moreover, there was other information in the ITO that made the identification process here less unreliable.
[57] Second, regarding the failure to mention the second address listed next to the applicant's name, I cannot find that this failure was a material omission. Nor do I find that it would have impacted the grounds to issue the warrant. The mere fact that this address was listed next to the applicant's name does not mean it was relevant and ought to have been included. There was also other information in the ITO that supported grounds to believe that the firearm would be found at 21 Graham Crescent.
[58] Finally, I cannot agree with Ms Bristow that the affiant's assertion that "firearm owners tend to retain their firearms for long periods of time" is inflammatory and that the affiant should have sourced this information. I agree with the Crown that, to some extent, the affiant was simply stating a common sense proposition that guns are not a commodity like drugs that are moved around a lot, and bought and sold frequently. It is like the oft-cited proposition that because large amounts of drugs are a valuable commodity, a drug dealer would only allow a trusted associate to hold or transport them. I also note that, even without this assertion, there remained a sufficient basis for the issuing justice to conclude that a firearm would be found at 21 Graham Crescent.
2.3.3. Conclusion on the Sufficiency of the ITO
[59] This is a close case. The ITO discloses that the CI has been used in the past and is credible. The ITO also discloses a compelling tip. However, the ITO discloses no corroboration of the tip. In my view, given the high bar that the applicant must meet here – showing that the warrant could not have issued – I find that the ITO does show a basis of issuance, even if that basis is not strong. The issue here is not whether I would have issued the warrant, but whether there is any basis on which the issuing justice could have issued it.
[60] A credible informer providing compelling information to the police, can provide a basis for a justice to find credibly-based probability. As Juriansz J.A. noted in R. v. Campbell, the standard of reasonable grounds is a qualitative one, and reasonable people can differ about whether an authorization should have been granted. Because reasonable people can differ on this threshold, the question is not whether the reviewing judge would have issued the warrant. And that is an important aspect of review that a trial judge must keep in mind. A reviewing judge cannot yield to the temptation to set aside a warrant simply because that judge would not have issued it. As should be apparent from my comments throughout this ruling, I was unimpressed by the police's efforts in this case and would have set aside this warrant had this been a de novo review. But since that is not the test, this warrant survives.
[61] Because there was no breach of the applicant's s. 8 Charter rights, I need not consider s. 24(2) and the R. v. Grant inquiry.
3. Conclusion
[62] The application to set aside the warrant and exclude evidence seized from 21 Graham Crescent is dismissed.
Released: September 3, 2020
Justice M.M. Rahman
Footnotes
[1] There are two versions of this ruling. One is being released under seal because it contains privileged information. The other, public version will have the privileged material redacted.
[2] R. v. Downey-Smith, 2020 ONCJ 350.
[3] The contraband seized is specified in the unredacted ITO.
[4] R. v. Garofoli, [1990] 2 SCR 1421. The Step 6 procedure permits the Crown to rely on privileged information that the accused cannot see, as long as the information is summarized so that the accused can appreciate the nature of the deletions.
[5] This is the approach followed in other cases including R. v. Woo, 2017 ONSC 7655 and R. v. Simpson, 2020 ONCJ 40.
[6] R. v. Ebanks, 2009 ONCA 851 at para. 20.
[7] R. v. Sadikov, 2014 ONCA 72 at para. 84.
[8] R. v. Campbell, 2011 SCC 32 at para. 14; Sadikov, supra, at para 83.
[9] R. v. Araujo, 2000 SCC 65 at para. 54.
[10] Sadikov, supra, at para. 87; Ebanks, supra, at para. 20; Araujo, supra, at para. 54.
[11] R. v. Paryniuk, 2017 ONCA 87 at para. 69. At least two such cases suggest that this subversion must amount to an abuse of process: R. v. Bacon, 2010 BCCA 135 at para. 27 and R. v. Vivar, 2009 ONCA 433 at para. 2 (both cited in Paryniuk, supra at para. 70).
[12] Araujo, supra, at para. 57.
[13] R. v. Herta, 2018 ONCA 927 at para. 21.
[14] Sadikov, supra, at para. 84.
[15] R. v. Debot, [1989] 2 S.C.R. 1140.
[16] Debot, supra, at p. 1168.
[17] I appreciate that in R. v. Rocha, 2012 ONCA 707, the Court of Appeal appeared to suggest (at para. 6) that the failure to mention whether any convictions were obtained because of the informer's past information was problematic. It is difficult to understand how, in most circumstances, the fact that convictions were obtained would have any bearing on an informer's reliability. An informer's information could be reliable even if an accused is not convicted, since an accused can be acquitted for reasons unrelated to the sufficiency of an ITO. Conversely, an informer's unreliable tip may still result in a conviction if there was other information supporting the issuance of the warrant, or the Crown's case was otherwise strong without evidence obtained pursuant to a warrant. The result at an accused's trial has no necessary connection to the reliability of informer's tip.
[18] As a practical matter, I also note the difficulty the police would have proving that the CI knowingly provided false information. Information that does not pan out is not necessarily false at the time an informer supplies it. Also, I have never heard of police laying a charge against an informer for providing false information, and there are likely very compelling policy reasons why police would be reluctant to charge anyone except the most demonstrably deceptive informers. Many informers, even if they are not schooled in the criminal justice system, would likely be able to figure this out. And informers who understand their importance to the police, and the privilege they hold, would probably not fear prosecution.
[19] Characteristics that will lead to a tip being considered compelling include the following: it is detailed, it is based on first-hand observations (not rumour or gossip), and it is reasonably current: see R. v. Greaves-Bissesarsingh, 2014 ONSC 4900 at paras. 40-42.
[20] R. v. Campbell, 2010 ONCA 588, aff'd 2011 SCC 32, at para. 54.
[21] R. v. Grant, 2009 SCC 32.