Court File and Parties

Ontario Court of Justice

Date: 2020-12-17

Court File No.: Toronto 18-15006961-00

Between:

Her Majesty the Queen

— and —

Joshua Hill

Before: Justice Newton-Smith

Heard on: December 3, 2020

Ruling released on: December 17, 2020

Counsel

Kerry Benzakien and Christina Malezis — counsel for the Crown

Nate Jackson — counsel for the accused Joshua Hill

Ruling Re: The Availability of Step 6 on an Entrapment Application

Newton-Smith J.:

I. Overview

[1] Following a trial that took place before me in the fall of 2019 Mr. Hill was convicted of a variety of offences related to trafficking in crystal meth and other drugs.

[2] Mr. Hill now brings an Application for a stay of proceedings on the basis that he was entrapped by the police.

[3] After Mr. Hill's conviction the Supreme Court of Canada released its decision in the companion cases of R. v. Ahmad and R. v. Williams, 2020 SCC 11. In that decision the Court considered the application of the doctrine of entrapment in dial-a-dope investigations.

[4] Ahmad affirmed that, prior to offering a person answering a cell phone the opportunity to commit an offence, the officer must first have formed a reasonable suspicion that the person using the phone, or the phone number, is engaged in criminal activity: Ahmad at para 4.

[5] The police investigation into Mr. Hill was a dial-a-dope investigation. The police received information that a white male named Josh Hill was selling crystal meth using the phone number 437 770 8756. Officer Patterson called the number and arranged to purchase $200 worth of crystal meth from "Josh".

[6] During the call Officer Patterson said, "My friend said that I could call you for Tina". Tina being slang for crystal meth. The Crown concedes that in saying this the officer was providing Mr. Hill with an opportunity to traffic.

[7] On this Application Mr. Hill contends that, prior to providing him with this opportunity, the officer did not have reasonable suspicion.

[8] In responding to the Application the Crown seeks to rely on information from a confidential informant that was provided to Officer Patterson prior to her placing the call to Mr. Hill. Because of its obligation to protect the identity of a confidential source the Crown is unable to disclose the information to the defence in an unredacted form. As a result, the Crown seeks to enter into a Step Six procedure in which the defence is provided with a summary of the redacted information and the Court is able to consider the unredacted information.

[9] The defence is opposed to the Application of Step 6 in this case.

II. The Garofoli Step Six Procedure

[10] In R. v. Garofoli, [1990] 2 S.C.R. 1421 the Supreme Court of Canada set out a procedure which allows the Crown to resort to reliance on unredacted materials not disclosed to the defence, provided that the defence has been given a summary of the redacted material. The summary, referred to as a judicial summary, must permit the accused to be sufficiently aware of the nature of the redacted material to challenge it in argument or in evidence.

[11] Garofoli was a warrant review case where the redacted material was contained in a sworn affidavit supporting the prior judicial authorisation under review. Garofoli applications are concerned with the admissibility of evidence obtained pursuant to a presumptively valid judicially authorised search. They are evidentiary hearings where the redacted information is not being used to directly incriminate the accused at trial.

III. Step Six Beyond Garofoli

[12] Despite the fact that Garofoli was released in 1990, the Step Six procedure was rarely employed until a 2012 decision of the Ontario Court of Appeal, R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742 (C.A.).

[13] In Rocha Juriansz J.A. questioned why Crowns so infrequently resorted to the procedure and concluded with the following:

I have added these concurring reasons to highlight the dilemma raised in such cases and to encourage attention being paid to it in future cases. I appreciate there may be practical questions about the procedure to be followed in applying step six of Garofoli and about the content of the judicial summary. However, only resort to the procedure will lead to the development of jurisprudence to resolve these questions.

Rocha, at para 59.

[14] Following Rocha resort to Step Six has become common place in warrant review cases and a line of jurisprudence has developed surrounding the use of the procedure and the creation of judicial summaries.

[15] There is also emerging jurisprudence at the trial level expanding the use of Step Six beyond the original warrant review context. I am aware of six such cases, all of which involved resort to Step Six to support the grounds for a warrantless arrest.

The Cases Considering Step Six Outside of Warrant Review

[16] Juriansz J.A.'s remarks in Rocha drew on an earlier decision, R. v. Learning, 2010 ONSC 3816, 2010 O.J. No. 3092 (S.C.J.), wherein Code J. remarked that, "It is unfortunate that 'step six' in Garofoli is the only legal mechanism available, to resolve the conflict between the competing demands of Debot and Leipert, and yet it is simply not being tried or tested.": Learning, at para 107.

[17] The Step Six issue in Learning did not arise in the warrant review context, rather Code J. considered the use of the procedure in determining whether an arresting officer had reasonable and probable grounds for a warrantless arrest. In Learning a search warrant was authorised following the warrantless arrest. The ITO supporting the warrant, authored by the arresting officer, outlined the grounds that the officer relied on for the arrest. Code J. invited the use of the procedure in determining the section 9 issues arising from the warrantless arrest, although ultimately the Crown did not resort to it.

[18] In R. v. DaCosta, 2014 ONSC 4126, [2014] O.J. No. 3288 (S.C.J.) a similar situation arose. A warrantless arrest was followed by a search warrant in which the grounds for belief leading to the arrest were set out in the ITO. Following Juriansz J.A.'s endorsement of Learning in Rocha, Garton J. found that:

In my view, there is no reason to confine the "step six" procedure to situations where a prior search or arrest warrant has been obtained, bearing in mind the primary principle underlying the "step six" procedure – that is, that it offers a rational solution to the conflict that arises between the demands of Debot with respect to disclosure to the defence, and the dictates of R. v. Liepert (1997), 112 C.C.C. (3d) 385 (S.C.C.) with respect to the law of informant privilege.

DaCosta, at para 51.

[19] In R. v. Douale, [2016] O.J. No. 3349 (S.C.J.) the same circumstances arose again. Mr. Douale was arrested without a warrant. The grounds relied upon for the arrest were set out in an ITO for a search warrant granted after the arrest. In that case there was also a section 8 challenge and the warrant was already under review. The Crown did not seek to go to Step Six. However, in his analysis Quigley J. considered Learning and DaCosta and endorsed the use of Step Six in those circumstances: Douale, at paras 39-40.

[20] In R. v. Iraheta, 2017 ONSC 2467, a warrantless arrest was again followed by a search warrant. Himel J. relied on the Step Six procedure for both the section 8 and the section 9 issues. Mr. Iraheta was convicted and appealed to the Court of Appeal. One of the grounds of appeal related to whether Step Six could be applied when considering the sufficiency of grounds for arrest. In her reasons on a bail application Fairburn J.A. made the following comments with respect to the proposed ground of appeal:

The appellant maintains that this issue is yet to be commented upon in this court. He also argues that there is a live issue about whether, even if step six can be invoked in this context, evidence gathered incident to the arrest can be admitted at trial. I accept that the appellant's argument in this regard is somewhat novel and to be developed. On the basis of the law as it currently stands, though, the appellant will have to persuade this court of the correctness of his position. In other words, there is no authority that currently supports the suggestion of an error.

R. v. Iraheta, 2018 ONCA 229, at para 19.

[21] Iraheta was recently argued and the issue was not considered by the Court: R. v. Iraheta, 2020 ONCA 766 at para 25.

[22] In R. v. Williams, [2018] O.J. No. 3217 (S.C.J.), the issue arose again in the context of a warrantless arrest, although this time there was no subsequent warrant and ITO. In commenting on the use of Step Six, Hill J. found that:

Nevertheless, where the officer who arrested without warrant has the grounds for belief committed to writing, as in the instance of Const. Mullinder's notebook, sworn in oral testimony to have been a basis for the arrest decision, the Step Six review process may well strike the appropriate balance to the competing interests of full answer and defence, and, the public interest in CI protection in the course of criminal investigation evidence gathering.

Williams, at para 119.

[23] And most recently, in R. v. McCalla, [2019] O.J. No. 2764 (S.C.J.), the situation arose. Again in the context of a warrantless arrest followed by a search warrant. Monahan J. considered Fairburn J.A.'s comments in the Iraheta bail application and found that, "in my view the same logic which led the Supreme Court in Garofoli to permit the reviewing judge to examine the unredacted ITO in considering the validity of a search warrant, applies equally in cases where an unredacted ITO sets out the grounds for a warrantless search.": McCalla, at para 21.

[24] Of those six cases all but one were cases where the grounds for the arrest relied on CI information that was set out in a subsequent ITO for a search warrant. Only in Williams was there no subsequent ITO. There the grounds for belief were committed to writing in the officer's notebook.

[25] In all six cases the use of Step Six was endorsed. And as Fairburn J.A. noted in Iraheta, there is no authority which suggests that this is an error.

IV. Step Six in the Entrapment Context

[26] Like in the above cases, the Crown here seeks to resort to Step Six in order to demonstrate that the requisite grounds existed for the police action in question.

[27] Where this case differs is in the context. All of those cases were Charter hearings dealing with the admissibility of evidence. As was Garofoli.

[28] In those cases the question was whether or not the officer had reasonable and probable grounds for an arrest. The question in Garofoli turned on the affiant's reasonable grounds for belief.

[29] As noted by Rouleau J.A. in R. v. Crevier, 2015 ONCA 619, [2015] O.J. No. 5109 (C.A.), the context is significant:

It should be recalled that the Garofoli hearing is a pretrial, threshold evidentiary hearing challenging the validity of an evidence-gathering tool. It is not a trial on the merits where guilt or innocence is at stake. It involves an inquiry into whether there was any basis on which the authorizing judge could be satisfied that the relevant preconditions to issuing an authorization or warrant existed.

Crevier, at para 64.

[30] Here we are dealing with a different context, an entrapment hearing.

[31] An entrapment hearing is a post-conviction application of the abuse of process doctrine. As in Garofoli and the warrantless arrest cases, the inquiry is not into the guilt or innocence of Mr. Hill but the conduct of the state.

[32] As noted by Code J. in Learning, the Supreme Court of Canada in R. v. Pires and Lising (2005), 2005 SCC 66, 201 C.C.C. (3d) 449, suggested that full answer and defence rights are more attenuated on Charter admissibility hearings where the guilt or innocence of the accused is not at stake.: Learning, at para 106, Pires and Lising, at 463-6.

[33] It follows that a similar attenuation of the right to make full answer and defence would apply in the entrapment context where a conviction has already occurred.

[34] The purpose of the doctrine of entrapment is to, "shield individuals from state conduct that society regards as intolerable". The remedy, a stay of proceedings, is only to be granted in the clearest of cases: Ahmad, at paras 112-113.

[35] Without recourse to Step Six in this case the Crown would be left without the ability to rely on what is likely the most pertinent information going to the officer's reasonable suspicion. And in turn, the Court would be left with a record that is not reflective of the very police conduct under review.

[36] The broad discretion of trial judges to craft remedies to deal with issues relating to informant privilege has been endorsed by the Supreme Court. Fish J., speaking for the Court in R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, noted that:

An ex parte procedure is particularly troubling when the person excluded from the proceeding faces criminal conviction and its consequences. In order to protect these interests of the accused, trial judges should adopt all reasonable measures to permit defence counsel to make meaningful submission regarding what occurs in their absence. Trial judges have broad discretion to craft appropriate measures in this regard.

Basi, at paras 54-55.

[37] Allowing the Crown to resort to Step Six in the context of this entrapment hearing, where the officer's reasonable suspicion depends on confidential source information, seems to me to be an appropriate use of this broad discretion.

V. Conclusion

[38] Here I am told that the officer's grounds for belief are contained in an email which she received from the confidential source's handler. While what is committed to writing is not the officer's own words, the information contained in the written communication is what the officer grounded her belief on. There is therefore a contemporaneous record from which a judicial summary can be crafted.

[39] The officer has already testified at trial and is available for further examination with respect to those grounds for belief. Issues relating to her understanding of the information that was communicated to her in the email, and any steps which she took with respect to it, can be addressed through further evidence or argument.

[40] I see no reason why a judicial summary that makes Mr. Hill sufficiently aware of the nature of the information contained in the email to challenge the officer's reasonable suspicion in argument or by evidence, is any less of an appropriate procedure in this proceeding than it is in the context of a review of an officer's grounds for belief in a threshold evidentiary hearing.

Released: December 17, 2020

Signed: Justice A. Newton-Smith