Ontario Court of Justice

Date: March 29, 2021 Court File No.: Brampton 19-14346

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SANVEER SINGH

Before: Justice Hafeez S. Amarshi

Heard on: February 26, 2021 Oral decision: March 12, 2021 Written reasons for judgment released on: March 29, 2021

Counsel: T. Sarantis, for the Crown M. Sodhi, for Sanveer Singh

H.S. Amarshi J.:

RULING ON THE ADEQUACY OF THE JUDICIAL SUMMARY

A. Introduction

[1] The Applicant Sanveer Singh has brought a pre-trial application alleging that a search warrant executed at a residence he is associated with had been issued in violation of section 8 of the Charter.[^1] He is seeking exclusion of a handgun and drugs that were seized by police during the search, pursuant to s. 24(2) of the Charter.

[2] The search warrant relies substantially on information provided by a confidential informant (CI), and as a result large portions of the Information to Obtain (ITO) have been redacted in order to protect informant privilege.

[3] The Crown concedes that the redactions that have been applied to the search warrant in this case have rendered it unsupportable, and it cannot in its present form be upheld.

[4] Mr. Sarantis has applied that this Court rely on the unedited affidavit in assessing the sufficiency of the search warrant.[^2]

[5] As part of this procedure, a court is to draft a judicial summary which outlines information relevant to assessing the sufficiency of the ITO. This is achieved via a summary of the nature of the deletions.

B. Procedural Background

[6] On February 10, 2021, the Applicant was provided a judicial summary. In addition, a number of redactions were lifted. I found the initial redacted ITO as disclosed to the defence had been over-edited. This is not meant to be a criticism of the Crown but during a review of the ITO, which was conducted in camera, it was determined that some excisions could be lifted while maintaining informant privilege. This is not an unusual occurrence. For example, details that may been sensitive at the time the affidavit was drafted by police can over the passage of time be safely released.

[7] Before the summary was released, the Crown reviewed the proposed draft prepared by this Court. Mr. Sarantis consulted with both the CI handler and the affiant. The Crown was satisfied that the summary provided to the defence did not encroach upon privilege.

[8] Mr. Sodhi was then given an opportunity to make submissions on the adequacy of the summary. His position is that the judicial summary is an “adequate summary,” in that it provides him a sufficient understanding of the contents that have been redacted, however, that is not universally the case, and there are certain portions of the summary which he has deemed inadequate, such that he has insufficient disclosure to allow him to meaningfully challenge the issuance of the search warrant.

[9] In response to Mr. Sodhi’s submissions, I reviewed the judicial summary and made further revisions and a second version was released to the Applicant.[^3] I note, the summary is not meant to be a static document and as additional issues come to light it may be supplemented.[^4]

[10] One of Mr. Sodhi’s concerns for example, was related to the quality of police corroboration. He noted the nature of the corroboration could be deemed trivial and therefore not particularly meaningful when considering the Debot factors. He sought additional detail to be able to assess the relative value of the corroboration.

[11] Although the purpose of a judicial summary is meant to make the defence aware of the nature of the redacted material, I accepted his argument on this discrete issue and additional contextual information was provided.

[12] The matter returns today for a ruling on the adequacy of the summary. This morning, I released a third version of the judicial summary dated March 12, 2021. The changes to the summary between version two and three are not significant. They do, however, take into account defence submissions made on the last occasion.[^5]

C. Applicant’s Position

[13] Before I render my conclusion, I will summarize the Applicant’s concerns. It is not meant to be an exhaustive summation.

[14] Mr. Sodhi points to the judicial summary starting at page 21, paragraph 10 of the ITO.[^6] At that paragraph the affiant details information received by the CI. The actual date the information was received from the CI is redacted and replaced with a date range, specifically, “within 60 days of July 4, 2019,” which is the date the search warrant is executed in this case. The paragraph detailing the informant’s tip is fully redacted for obvious reasons. A summary of that paragraph indicates it contains information about Mr. Singh’s criminal activity. The specific type of criminality is not revealed. Whether this information is first-hand, or hearsay is apparent. The summary also provides additional details, specifically, information about a vehicle(s) associated to Singh. The make and model of the vehicle(s) is not revealed.

[15] Mr. Sodhi submits that additional details about the vehicle(s) are required to assist in challenging the ITO. He has an additional concern in that the details regarding the nature of corroboration are sparse. This latter issue has been addressed in the revised summary. The summary now reveals that the corroboration of the informant’s tip was “via a direct observation by police of a vehicle the CI says is associated to Mr. Singh.”

[16] At page 21 at 6, the judicial summary refers to information provided by the CI about Mr. Singh’s movements, “within 60 days of July 4, 2021.” Whether this is first or second-hand information is revealed in the ITO. Mr. Sodhi submits that this time period is too broad for the defendant to recall where he was or what he did over an entire 60-day period.

[17] It is open to the defence, however, to call evidence at the voir dire about Mr. Singh’s movements during the range of time identified in the summary when the CI is providing information to police. For example, if the Applicant was out of the province during this period or a portion of this period that may be a relevant consideration for this Court. Such evidence if accepted, may have bearing on the overall reliability of the ITO.

[18] Also at page 21 at 7(b), the defence submits the summary which refers to “detail(s) of criminal activity about associates of Singh” is lacking.[^7] Further Mr. Sodhi cites a lack of specificity about a vehicle that is associated with the Applicant, but the make and model are not identified. Counsel seeks to understand, as he noted in his written materials, “whether the information is common knowledge or something only a select number of people would know.”

[19] At page 22 of the ITO, the Applicant seeks to clarify a difference in the content between versions of the judicial summary. Upon review, the February 12 version provides additional detail which is now replicated in the final March 12 version. With the additional detail: “Non-criminal, police corroboration of confidential source tip via “PQT and Niche queries” about associate(s) of Singh,” it should be obvious that corroboration was conducted via a computer records check and is different than the observational police corroboration contained at page 21 at 10. In other words, the specific type or manner of corroboration is now revealed.

[20] At page 31 at 3, in response to defence submissions, I have revised the judicial summary to read: “Details about the nature of possession, specifically the circumstances under which the firearm was possessed. A repeat of detail(s).” To clarify the word “nature’’ in this context can refer to the type or means of possession.

D. Use of Hypotheticals

[21] At this juncture I will address what can be characterized as Mr. Sodhi’s main concern regarding the adequacy of the judicial summary, specifically he cites a lack of detail in the summary as drafted by this Court and a deficient disclosure of the portions of the ITO that remain redacted. Mr. Sodhi identifies multiple instances which I have referenced in this ruling, and in which he argues, he is prevented from being able to reasonably make submissions on the sufficiency of the ITO. He submits the summary be supplemented with additional details and further redactions be lifted.

[22] Upon careful review of the unredacted ITO and the final version of the judicial summary I have concluded that no further details can be furnished without infringing informant privilege.

[23] That said, counsel can avail himself of arguments made in the alternative. The Applicant could argue the sufficiency of the grounds on a hypothetical basis. In this case the means of the CI’s knowledge is redacted, however the defence could argue that if the tip about the firearm was current and based on firsthand knowledge, then it was "compelling." If the tip was however based on secondhand hearsay, then it would clearly be much less "compelling.”[^8]

[24] By way of another example, the defence being unaware if the CI has a criminal record, because such detail would be an identifying factor, could argue that this Court assume the informant has a criminal record and if it contains entries for acts of dishonesty for instance, then such entries would have a direct bearing on the assessment of the Debot criteria in this case.

[25] Submissions made in this manner could address many of the Applicant’s concerns, especially as it relates to the summary of information contained at “Appendix D” of the ITO, which refers to the CI’s history and motivation for providing information to police. Argument on the basis of hypotheticals will allow the defence to make fulsome submissions on the s. 8 issue without infringing informant privilege.[^9]

[26] The Applicant identified one area in the “Addendum” of the judicial summary where he seeks further clarification. Specifically, a paragraph which provides summarized details about a search warrant that was granted and not executed. The reaction is necessary because the timing of the application for that search warrant is deemed sensitive.

[27] The summary reads in part: “Details about this unexecuted search warrant are contained in two different paragraphs. It is obvious in the unredacted ITO that a material detail contained in one paragraph differs from detail(s) in a subsequent paragraph although both paragraphs refer to the same search warrant.”

[28] The material detail relates to the vehicle(s) listed. When both paragraphs are read together, the only reasonable conclusion that can be drawn is that the information contained in one paragraph is incorrect.

[29] The Applicant seeks further information about the nature of this conflict or error.

[30] This redaction has been subject to much attention during the drafting of the judicial summary and I have concluded that further details cannot be released without piercing informant privilege.

[31] In this instance Mr. Sodhi should rely on the use of hypotheticals. To be clear, information contained in one paragraph conflicts with information contained in a second paragraph although both paragraphs refer to the same search warrant. This may, for example, be a drafting error or sloppiness and inattention on the part of the affiant. At the other end of the continuum the defence is open to argue that the paragraphs were drafted by the affiant to purposely mislead the issuing justice and that as a result, the reliability of the ITO is undermined.

[32] I further note as a final statement on this issue as to the types of arguments available to the Affiant to challenge the warrant based on the three Debot criteria. These include highlighting 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.[^10]

E. Applicable Principles

[33] The Crown seeks that this Court rely on the information that has been redacted to support the authorization of a search warrant of a residence where the Applicant was found.

[34] As the Supreme Court stated in R. v. Garofoli, [1990] 2 S.C.R. 1421, at para. 79: “The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.”

[35] In other words, I must be satisfied that the judicial summary provided to the defence, combined with the redacted ITO, must be enough to ensure the Applicant is in a proper position to exercise his right to make full answer and defence.

[36] The step six procedure as developed by the court in Garofoli allows for the meaningful litigation of the search warrant by the defence while protecting the safety of the informants.

[37] The content of the judicial summary as the court noted R. v. Reid, 2016 ONCA 524, at para. 90, "need only make the accused aware of the nature of the redacted material, not its substance and not its details."

[38] In assessing the adequacy of a judicial summary, the Ontario Court of Appeal in R. v. Crevier, 2015 ONCA 619, provides a template and instructs a trial judge where possible to “inform the accused not only of what was redacted but also where in the ITO the redacted information is contained. As well, the judicial summary should state if the nature of a redaction in a specific paragraph of the ITO cannot be summarized.”[^11]

[39] This is the ideal scenario, however, there may be occasions where closely tracking paragraphs contained within the ITO and a summary of the deletion may be problematic, as the nature of the redacted information can be obviously surmised from details that remain unredacted in the surrounding paragraphs.

[40] In this case the judicial summary tracks where in the ITO the information is contained as recommend by the court in Crevier. Although in at least once instance, location tracking was deemed problematic and the relevant summary of the deletion is contained elsewhere in the document released to the defence.

[41] Of note, there were sentences and at times paragraphs that could not be meaningfully summarized because concerns related to identifying the CI could not be mitigated. These sections are specifically identified in the summary and cannot be relied upon to uphold the warrant.[^12]

[42] At paragraph 84 of Crevier, the Court of Appeal outlines a non-exhaustive list of types of information that the trial judge ought to consider when preparing or approving the summary. This includes information, for example, about any errors or inaccuracies in the ITO, whether the informer has previously provided information to police, and the informants motivation for speaking to police.

[43] Rouleau J.A. goes on to state, “I do not suggest that the failure to include one or more of these points will necessarily make the summary inadequate. A sufficient summary should let the accused know the nature of the information behind the redactions, provided this would not breach informer privilege. He or she should know what went into the ITO and what did not.”[^13]

[44] This list as the court pointed out is not determinative of the adequacy of the judicial summary as each step six process is unique to the proceedings, the information available to the defence and the contours of the affidavit.

[45] I note, however, many of the points outlined by the court in Crevier in assessing the sufficiency of the summary and ITO at step six of Garofoli are present in the contents of the judicial summary as provided to the Applicant in this case.

F. Conclusion

[46] I have concluded that the information in possession of the defence – that is a summary of the nature of the information that has been redacted, the redacted ITO and disclosure received by the defence allow the Applicant to meaningfully challenge the issuance of the warrant. Further, the defence has had, albeit on a limited basis, an opportunity to cross-examine the affiant. I am satisfied that the judicial summary includes as much information as can be safely released without undermining informant privilege. Accordingly, the step six review is to be permitted.

H.S. Amarshi J

Footnotes

[^1]: On March 12, 2021, an oral ruling was rendered in this matter. On that date, I indicated the following: “Today’s reasons will be delivered orally. In the event a written decision is released, that version takes precedence over the oral reasons in the event of any discrepancy. That said, any changes contained in the decision would only relate to grammar and written clarity and not the underlying analysis and conclusion.” [^2]: See step six at R. v. Garofoli, [1990] 2 S.C.R. 1421, at para. 79 (S.C.C.). [^3]: A second version of the judicial summary was released to the defence on February 12, 2021, which was the last day set aside for the step six procedure in this case. On February 26, 2021 this matter returned for continuing pre-trial argument. On that day, the defence made further submissions concerning the adequacy of the judicial summary. Mr. Sodhi helpfully provided a written guide to outline his areas of concerns, which was made an exhibit. [^4]: See for example, R. v. Lowe, 2018 ONCA 110. [^5]: The third and final version of the judicial summary, which was released on March 12, 2021, takes precedence over previous versions of the judicial summary. [^6]: This ruling should be read in conjunction with the judicial summary released by this Court and the redacted ITO to understand the context of Mr. Sodhi’s arguments. [^7]: Also, at page 21 a revision was made to the last version of the judicial summary at page at 7(c) to address the Applicant’s concern that the summary contained at 7(a) and 7(c) uses the same language and therefore requires differentiation. [^8]: See R. v. Iyeke, 2016 ONSC 7120. See also R. v Crevier, 2015 ONCA 619. [^9]: See R. v. Greaves-Bissesarsingh, 2014 ONSC 4900. [^10]: Crevier, supra at note 8 at para. 77 [^11]: Ibid. at para. 85 [^12]: Ibid. at para. 87 [^13]: Ibid. at para. 84 Additional Notes 1. The Applicant has concerns about the lack of detail in the summary for pages 26, 34, 35 and 36 of the ITO. The ITO I note, is highly repetitive and the information contained on those pages is found elsewhere in the judicial summary and it is adequately summarized. 2. In many instances, I have indicated where the information in the summary is repetitive and initially located – see for example, the summary of page 29 of the ITO at 3. However, this is not universally the case, and in some instances, I have declined to indicate where that information is first referenced in the ITO because the location of the detail is sensitive. 3. Mr. Sodhi alerted me to page 37 and points out that the summary at 17 and 18 is the same. This is because both redacted sentences contain the same detail. I have included a clarifying note in the final version of the judicial summary by way of explanation.