ONTARIO COURT OF JUSTICE
DATE: 2023 05 09 COURT FILE No.: Windsor 21-736
BETWEEN:
HIS MAJESTY THE KING
— AND —
SHELDON BAYLIS
Before: Justice S. G. Pratt
Heard on: 28, 29 March 2023 Reasons for Judgment released on: 9 May 2023
Counsel: Nicole Stortini..................................................................................... Counsel for the Crown Bobby Russon.......................................................................... Counsel for the Defendant
RULING ON SUB-FACIAL VALIDITY OF A SEARCH WARRANT
Pratt J.:
[1] Sheldon Baylis, hereinafter the Applicant, has asked this Court to quash the search warrant executed on apartment 305 at 333 Glengarry Avenue, Windsor, on 4 May 2021. In this sub-facial challenge to the warrant’s validity, he says once certain additions and deletions are made to the Information to Obtain the warrant (the “ITO”), what remains provides no basis on which the warrant could have been issued. The Crown opposes the application. The Applicant further argues that even if the warrant is upheld on review, it should nonetheless be set aside as the conduct of police subverted the pre-authorization process. These reasons explain why the application will be dismissed.
The Facts
[2] Only a brief summary of the facts is necessary for this application. On 4 May 2021, the Windsor Police Service obtained a search warrant for the residence noted above. Execution of the warrant led to the seizure of two firearms, ammunition, and a knife. The Applicant and his co-accused, Colleen Cloutier, were charged as it is alleged they were both residing in the apartment at the time.
[3] The warrant was supported by an ITO authored by PC Harrison Young. It was based largely on information obtained from a confidential informant, identified as “Source A”. Source A provided information about the Applicant, his connection to the residence, and his alleged possession of a firearm.
The Law
[4] The Applicant is challenging the content of PC Young’s affidavit. He says certain aspects of it should be excised and certain other information should be added in. Once those changes are made, he argues, there is no basis in what remains on which the warrant could have been issued.
[5] In a challenge to a warrant’s facial validity, a reviewing court looks only at what is written in the ITO, minus whatever may have been redacted by the Crown. Nothing is added or removed. The question to be answered is whether, on its face, the ITO provided sufficient evidence that the warrant could have been issued. The test is not whether the reviewing court would have issued it.
[6] In a sub-facial challenge, the test remains the same but the information that is considered does not. A court is not limited to what is written on the page; it can and should consider the underlying veracity and completeness of what was presented to the issuing justice. It goes beyond the form of the affidavit to attack its content (see: R. v. Araujo 2000 SCC 65, [2000] 2 S.C.R. 992 at paragraph 50). The burden is on the Applicant to show the warrant is invalid.
[7] The record before the reviewing court may end up being different from the record before the issuing justice. That is because the law permits amplification of the grounds presented. That is, additional information can be given to the reviewing court that was not given to the issuing justice. Similarly, information in the original ITO can be excised and removed from consideration by the reviewing court. The result is the reviewing court could end up with a very different ITO than the issuing justice had. Nonetheless, the test remains the same: on the basis of the amplified record, could the issuing justice have granted the authorization?
[8] Search warrant applications are made on an ex parte basis. The target of the warrant receives no notice of the application and has no chance to respond. Consequently, police have a duty to be full, frank, and fair in their presentation to the issuing justice. It would be all too easy to present a one-sided view of the investigation and only include information that strengthens the application. This is not the duty of an informant. As noted by Justice Fish at paragraph 58 of R. v. Morelli 2010 SCC 8, [2010] 1 S.C.R. 253:
In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosure to the justice. When seeking an ex parte authorization such as a search warrant, a police officer -- indeed, any informant -- must be particularly careful not to "pick and choose" among the relevant facts in order to achieve the desired outcome. The informant's obligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed. (Emphasis in original)
[9] And, as stated by Justice Paciocco in R. v. Booth [2019] O.J. No. 2639 (C.A.) at paragraph 54:
Obviously, it is imperative that issuing judges or justices have an accurate understanding of the material, known facts available to the affiant officer. If the ITO contains erroneous, incomplete, or dishonest information relating to known information, an issuing judge or justice could be misled, and provide an authorization that should not have been provided. To ensure accuracy, anyone seeking an ex parte authorization, such as a search warrant, is required to make full and frank disclosure of material facts: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 46. This is because an ex parte warrant application is not adversarial. As a corollary of the privilege of being the only party permitted to present evidence in an ex parte application, a search warrant affiant bears the burden of presenting the facts accurately and fairly, from the perspectives of both sides.
[10] In the present case, the Applicant sought leave to cross-examine PC Young in an attempt to show that by him not being full, frank, and fair in his disclosure to the issuing justice, a precondition to the issuance of the warrant was invalid. After a hearing, that leave was granted on certain specific areas. Based primarily on the evidence thus obtained, the Applicant seeks several additions and excisions.
The test for amplification
[11] Justice Paciocco defined amplification at paragraph 59 of Booth, supra:
Erroneous information that would have been appropriate for inclusion in the ITO if presented accurately will sometimes be corrected by "amplification" so that it can be considered during the sufficiency review. Amplification entails adding information that should have been disclosed in order to give an accurate picture or replacing mistakenly inaccurate information with accurate information. When material information that would hinder a finding of reasonable and probable grounds has been improperly omitted, the ITO must be amplified to include it. However, amplification relating to information that could advance the warrant application is permissible only if the error in not making full and frank disclosure is: (1) a "minor, technical error"; and (2) made in "good faith": Araujo, at para. 59; Morelli, at para. 41.
[12] Amplification cannot be used to correct deliberate attempts to mislead the issuing justice (see: Morelli, supra, at paragraph 41).
[13] As I read the caselaw, there are two aspects to amplification: correcting minor, good faith errors in the ITO, and adding material evidence that should have been in the ITO to begin with.
The test for excision
[14] If the ITO contains information that it shouldn’t, that information should be excised on review. It is thereby removed from consideration by the reviewing court. This includes information that is erroneous or misleading and goes beyond being minor or technical.
[15] Excision is not the remedy for information that is simply contradicted by other information, or for information with which the reviewing court does not agree (see: R. v. Sadikov 2014 ONCA 72, [2014] O.J. No. 376 (C.A.)).
[16] Once all additions and excisions are made, the reviewing court must look at what remains to determine if the issuing justice could have granted the warrant. Again, the reviewing court does not substitute its own view for that of the issuing justice, nor is it a de novo consideration of the merits of the application. The only question is whether there is some basis on which the warrant could have been granted.
Residual discretion
[17] Even in cases where the validity of the warrant is confirmed, a reviewing court retains the residual discretion to set aside the warrant in certain limited circumstances. If the ITO as presented to the issuing justice is so misleading, either through the deliberate inclusion of false statements or the omission of material statements that it subverts the search warrant process and amounts to an abuse of process, a reviewing court can quash an otherwise valid warrant. The threshold for setting aside a warrant in these circumstances is high (see: R. v. Paryniuk 2017 ONCA 87; R. v. Vivar 2009 ONCA 433).
The Evidence
[18] The Court heard from one witness and received several documents in the hearing of this application. The witness, as noted, was PC Young, the affiant of the warrant.
[19] The documents filed included an agreed statement of facts related to other officers involved in surveilling the Applicant, copies of weapons prohibitions relevant to certain counts on the information, and a copy of the Applicant’s criminal record. All documents were made exhibits on the application.
[20] In the course of PC Young’s testimony, it became necessary for me to review two unredacted portions of his affidavit. Those two pages were made sealed exhibits. I will address this part of the application later in these reasons.
[21] PC Young’s cross-examination was limited to three areas:
(1) Whether Source A had ever provided information that proved to be inaccurate or incorrect;
(2) Of the times Source A provided accurate information to police, how many times were with PC Young, and how many times were with the previous handler; and
(3) Why certain facts found in PC Young’s notes were not included in the ITO.
[22] As to the first area, PC Young testified that there were several times that Source A provided him with information that he did not act upon. He was asked if there were occasions where information was provided that he could not verify. He said yes but could not estimate how many times that happened. He was specifically asked if there were times the source gave him information that he could not verify, despite his attempts to do so. He said yes. Again, he could not state how many times that happened.
[23] Despite that answer, he then provided this evidence:
WITNESS: To the best of my knowledge, whenever I investigated anything provided by Source A, it turned out to be accurate, corroborated, truthful. There are certainly times when you receive source information where you’re just unable to corroborate it. Whether that has happened with this source, I’m sure it has. (Emphasis added)
[24] It is not clear to me how those answers can co-exist. PC Young first says there have been times when he could not corroborate what Source A told him, despite his attempts. He then said whenever he investigated information from Source A, it was found to be accurate, corroborated, and truthful. He then says he’s “sure” there have been times when he couldn’t corroborate what Source A told him. I’m left with no clear answer on this point.
[25] As to the second area of cross-examination, PC Young testified that of the nine instances where Source A provided accurate information that led to arrests, charges, or the issuance of authorizations, eight were with Source A’s previous handler. For context, the source had been working with PC Young for the preceding 11 months. Prior to that, the source had been working with the previous handler for 17 months. I can take from that evidence that eight of the nine times the source gave accurate information were at least 11 months before the information provided in the present case.
[26] Finally, he was questioned on the things he did not include in the ITO. This formed the bulk of the cross-examination. He was first asked how he determined what he would include. He said:
WITNESS: Any information that I feel will provide reasonable grounds to whatever offence I’m seeking, obviously we’re very careful about what information is used to not identify the source, so some of those, anything that might tend to identify the source is typically left out or vetted out.
COUNSEL: The only reason you’d leave something out is because it’s irrelevant, correct?
WITNESS: Yeah if I don’t feel like it’s going to assist me with reasonable grounds then I won’t use it.
[27] This response is problematic. An informant should not only include evidence that assists him or her in establishing reasonable grounds for the issuance of the authorization. The duty to be full, frank, and fair requires inclusion of all material facts so as not to risk misleading the issuing justice. PC Young’s response here raises a concern that he was engaged in exactly the kind of one-sided presentation Justice Paciocco warned against in Booth, supra, and Justice Fish warned against in Morelli, supra.
[28] In his handler notes from April 2021, PC Young had Source A telling him, “Always carries one around on him”. It was confirmed that the “him” was the Applicant and that “one” referred to a firearm. When asked why he didn’t include information that the Applicant always carried a firearm around with him, he responded that he didn’t think it added anything to his reasonable grounds. That is, in a warrant alleging illegal possession of a firearm, PC Young did not think information that the target always carried a firearm with him would add to his reasonable grounds. Respectfully, I can’t see how it wouldn’t. It would be evidence of the offence itself.
[29] He also testified that it may well be in the unredacted ITO, which he hadn’t seen since he’d vetted it with the Crown in February 2023. Crown counsel examined the unredacted ITO and advised as an officer of the Court that it was not.
[30] The handler notes from May 2021 included the sentence, “Been on a rampage lately robbing everyone”. This was also not included in the ITO. He gave two reasons for its omission. One, that he did not think it strengthened his grounds for the offence of possession of a firearm, and two, part of his training included the recommendation that he not include evidence that would “paint the target in a bad light for the Justice”.
[31] He also confirmed he was unable to corroborate the claim that the Applicant was robbing people.
[32] On the issue of PC Young including in the ITO a mention of the Applicant engaging in robbery, the Crown unredacted a portion of paragraph 6(g) of the ITO. Following this additional unredaction, the paragraph read “Sheldon has the gun to protect himself and intimidate people. Specifically, Sheldon [redacted] rob”. It remained unclear if PC Young had, in fact, mentioned the information in the handler notes. If he had, his evidence on that point would have been contradictory. I directed the Crown to provide me with an entirely unredacted copy of paragraph 6(g) (and also paragraph 9 as it related to information obtained from Source A in May 2021) for my review. I provided an oral summary of paragraph 6(g) on the record to counsel. Paragraph 6(g) did not reflect information about the Applicant being on a rampage and robbing everyone. Further, paragraph 9 made no mention of robbery at all. In the result, PC Young’s evidence on that point was not inconsistent with the content of the ITO.
[33] He was then asked if he thought the suggestions that the Applicant always carried a firearm with him, and that he was robbing everyone, would support the inference that he was in possession of a firearm. This time, he agreed it would.
[34] He was asked again why he didn’t include the information that the Applicant had been on a rampage and was robbing everyone. He said he didn’t think it was necessary to form his grounds. It was suggested to him that it really had nothing to do with protecting the Applicant’s character. He agreed.
[35] PC Young then said he left other irrelevant information out, like the Applicant’s criminal record. When counsel pointed out the record was referred to in paragraph 8(b) of the ITO, he said that wasn’t the entire record. That paragraph referred to 10 prior convictions. The record filed on this application and accepted by the parties as complete also has 10 convictions. Paragraph 8(g) does appear to refer to the entirety of the Applicant’s criminal record.
[36] PC Young was asked about efforts made to put the Applicant under surveillance. He was asked about police action on 29 April and 3 May 2021. On each occasion, the police surveilled the apartment. On each occasion, the Applicant was not seen on the premises. He was seen by officers the following day (the 4th), which was the day the warrant was obtained and executed. That he was not seen at the apartment on 29 April or 3 May was not included in the ITO. PC Young testified that as no observations were made, he did not think it was relevant. Further, he said that another authorization, submitted to the same justice, did include that information so he assumed the justice knew. He testified to deleting that information from the evidence when drafting the current ITO. I will have more to say about this point later in these reasons.
[37] The documentary evidence provided confirmed that at the time of his arrest, the Applicant was bound by one, not two, weapons prohibitions. The Crown agreed this meant some of the counts should be withdrawn. The record provided evidence of the Applicant’s criminal history.
[38] The agreed statement of facts included observations made on 4 May by Sgt. Thompson and PC Langlois. These observations included seeing a male leaving apartment 305, travelling in a cab for a short time, and then returning to the apartment and opening the door with a key. Officers described his clothing, including a camouflage pattern balaclava. Later that day, police saw the same male exit the apartment and lock the door behind him. He was wearing different clothing but the same balaclava. The agreed statement says the officers identified the male as the Applicant after having seen a briefing photo of him earlier that day. It falls short of saying exactly how they knew the male was the Applicant, especially given that he was apparently wearing a face covering.
Proposed Amplifications and Excisions
[39] Based on the evidence led in the application, the Applicant proposes several amplifications and excisions. The Crown does not take issue with the evidence the Applicant seeks to add to the ITO but does take issue with some of the changes in wording the Applicant requests.
Amplifications
[40] The Applicant proposes the following additions to the ITO:
(1) Paragraph 5: “On a number of occasions I do not know, Source A gave information I tried to corroborate but couldn’t”;
(2) Paragraph 5, at line 6: restate the beginning of the sentence as “With a prior handler, Source A provided information related to” and change the number of Criminal Code search warrants from 3 to 2;
(3) Paragraph 5, second to last line on page 2: add the word “some” to have the sentence read, “Source A has received some information…”;
(4) Paragraph 5: change references to Source A’s possible drug use or trafficking to read, “Source A may or may not be a user or trafficker of drugs”;
(5) Paragraph 5: change references to Source A’s possible criminal record and outstanding charges to read, “Source A may or may not have a criminal record or outstanding charges”;
(6) Paragraph 6: add paragraph 6(l) to read, “Sheldon always carries a firearm with him”;
(7) Paragraph 8(a): should read one prohibition, not two;
(8) Paragraph 8(b): should read, “Sheldon Baylis has criminal record that contains a total of 10 convictions from 2006-2011”;
(9) Paragraph 9: add paragraph 9(c) to read, “Sheldon always carries a firearm with him”;
(10) Paragraph 9: add paragraph 9(d) to read, “Sheldon has been on a rampage lately robbing everyone”;
(11) Add a paragraph that discloses surveillance was conducted at 305-333 Glengarry Avenue, Windsor on 29 April and 3 May 2021, and that the Applicant was not seen at the residence on those days; and
(12) Paragraph 10: should read like the agreed statement of facts filed.
[41] I remind myself that amplifications should accomplish one of two things: they should either correct minor technical errors or add material facts not otherwise disclosed. The amplification process is not used to adjust otherwise innocuous wording to something more advantageous to the Applicant.
[42] In my view, amplifications 1, 2, 3, 6, 7, 9, 10, 11, and 12 provide material evidence that was not before the issuing justice. They are the proper focus of amplification. The changes and additions requested will be read into the ITO.
[43] In addition, to complete the original thought conveyed by PC Young at amplification 2, the following sentence will be added: “To me, Source A has provided information that led to the execution of one Criminal Code search warrant where the item(s) sought were located and the parties involved were arrested.”
[44] Amplifications 4, 5, and 8 reflect wording that may well be more palatable to the Applicant. But that is not the test for amplification. Those changes do not correct minor errors or add material evidence. The request to make those changes will be denied.
Excisions
[45] The Applicant proposes the following excisions:
(1) Paragraph 4, second sentence: “The firearm is being kept in apartment 305 at 333 Glengarry Avenue.”;
(2) Paragraph 5: “If Source A is a user or trafficker of controlled substances, the details will be provided in Appendix B.”;
(3) Paragraph 6(b): “Source A was able to describe the firearm.”;
(4) Paragraph 6(i): “Source A believes Sheldon keeps the guns inside apartment 305 at 333 Glengarry Avenue.”;
(5) Paragraph 7(d), first sentence: “Sheldon has 30 listed contacts with the Windsor Police Service dating back to 2006.”;
(6) Paragraphs 11(b) and 12(b): “Ammunition: Source A observed Sheldon BAYLIS in possession of ammunition for the firearm. Ammunition for the firearm will also afford real evidence for the offense of possession of a firearm knowingly not holding a license.”; and
(7) Paragraph 12, second sentence: “…including the description of the firearm…”
[46] The Applicant seeks excisions 1, 4, and 6 on the basis that they only disclose, at best, Source A’s belief rather than Source A’s direct experience.
[47] Regarding excision 1, the second sentence of paragraph 4 is a bald statement: “The firearm is being kept in apartment 305 at 333 Glengarry Avenue.” The affiant is silent on where that information came from, other than the implication he received it from Source A. Is this second-hand information being passed on by Source A, or is it something they saw for themselves? It’s impossible to tell without any kind of context being provided. It is a key point asserted as a fact without any support. It is prejudicial and will be excised.
[48] Excision 2 is related to proposed addition 4. I have no issue with how this sentence is worded. It will not be excised.
[49] Excision 3 is sought as the information provided is so incomplete as to be meaningless. Without additional detail as to the description of the firearm, what is provided is misleading as it suggests more than is actually known. Respectfully, I disagree. Each sentence of the ITO should not be viewed in a vacuum. Certainly, there is no detail provided in the unredacted portion of paragraph 6(b), but paragraph 6(a) says the officer received information from Source A that the Applicant has a firearm, and paragraph 6(c) says Source A saw the Applicant in possession of the firearm in the preceding 6 days. Paragraph 6(d) says the Applicant was in possession of ammunition “for the firearm”. It is clear the source is talking about the same firearm throughout as only the singular of the word is used and no mention is made of a second firearm. It is to be expected that Source A could describe the firearm. That no detail of the description is provided (e.g. it’s a long gun or a handgun) does not make the statement that a description was given subject to excision. Paragraph 6(b) will not be excised.
[50] Excision 4 is similar to excision 1 but arguably more complete. Rather than a bald statement, paragraph 6(i) says Source A “believes” the Applicant keeps the guns (now using the plural) in the apartment. The Applicant argues for excision on the basis that the statement only reflects the source’s belief, not their direct experience. It would certainly have been preferable to explain, even in general terms, why the source believes this to be true. That the affiant did not include that information is not, however, fatal. It is clear that the statement does not come from Source A’s direct knowledge. It was open to the issuing justice to determine how much weight should be put on this belief. The fact that it asserts a state of affairs based only on what Source A believes to be true may weaken the power of that claim, but it does not necessitate excision on the basis of being unfair or misleading.
[51] I would, however, question use of the word “guns” in paragraph 6(i). Nowhere else in the ITO is it even suggested that the Applicant possesses multiple firearms. No support for this contention is ever given. Alleging possession of multiple firearms is significantly different from alleging possession of one firearm. Use of the plural is unsupported and prejudicial. Absent evidence to the contrary and considering this is the only paragraph in the ITO where the plural is used, I will take this to be a typographical error. The word “guns” will be replaced with the word “gun”. Strictly speaking, this could be considered an amplification to correct a minor error. In any event, the change will be made.
[52] Excision 5 is sought on the basis that it is unnecessarily prejudicial and puts the Applicant in a negative light without adding anything substantive to the ITO. I agree. The first sentence of paragraph 7(d) will be excised.
[53] Excision 6 targets the affiant’s assertion in two paragraphs that Source A observed the Applicant in possession of ammunition for the firearm. On this point, the Crown concedes that it should instead read that Source A believes the Applicant is in possession of ammunition. Is this a case for an amplification? That is, would changing “observed” to “believes” simply be correcting a minor, technical error made in good faith? Respectfully, I don’t see how it could be. That seemingly small change significantly alters the strength of the entire paragraph. It takes the possession of ammunition from direct observation to an unsupported belief. While I do not ascribe bad faith to the affiant, I find I cannot make the amplification suggested. This is not a minor, technical error. It is serious, and it is misleading. Paragraph 11(b) will be excised in its entirety and the first sentence of paragraph 12(b) will also be excised.
[54] For the same reason excision 3 was denied, excision 7 will also be denied.
Consideration of the Amplified, Excised Warrant
[55] Having determined the changes to be made to the warrant, I must now consider if it could have been issued by the issuing justice.
[56] Again, it is not a question of whether I would have issued the authorization. It is whether the justice could have. Based on the ITO as amended, could the justice have found reasonable and probable grounds to issue the warrant?
[57] The answer is yes.
[58] Based on what remains in the ITO, and what has been added through amplification, there are reasonable and probable grounds based on which the issuing justice could have issued the warrant. I note the following:
(1) The Applicant was said to possess a firearm that the source was able to describe;
(2) The Applicant was seen in possession of that firearm in the preceding six days before the source spoke with the affiant;
(3) The Applicant had recently moved to the target residence from 412 Elliott Street East;
(4) In May 2021 (necessarily between 1-3 May, as the warrant was executed on the 4th), the source saw the Applicant in possession of the firearm and told the affiant again that the Applicant was residing in the target residence;
(5) The Applicant always carried a firearm with him; and
(6) The Applicant was, according to the source, on a “rampage” and robbing everyone.
[59] The standard of reasonable grounds does not equate to proof beyond a reasonable doubt, or even to proof on a balance of probabilities. While the test is not meaningless, it is also not unduly onerous. As stated by my brother Justice West at paragraph 51 of R. v. Williams 2021 ONCJ 630, [2021] O.J. No. 6858 (C.J.):
The standard of reasonable and probable grounds lies somewhere between "reasonable suspicion" and "proof beyond a reasonable doubt." Accordingly, the requirement of reasonable and probable grounds does not require proof beyond a reasonable doubt or even the establishment of a prima facie case. See: R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (C.A.), at para. 36-37. See also: R. v. Censoni, [2001] O.J. No. 5189; R. v. Suntharalingham, 2012 ONSC 6207, [2012] O.J. No. 5145 (Ont. Sup. Ct.); and R. v. Notaro, [2018] O.J. No. 2537 (C.A.). It also not require the officer to establish on a balance of probabilities his reasonable grounds.
[60] There are other portions of the amended ITO that could weaken the case for reasonable and probable grounds, such as the unsuccessful surveillance on 29 April and 3 May. It is possible another justice may not have issued the authorization. But I find the issuing justice could have issued the warrant on the basis of the ITO as it now stands.
[61] The validity of the warrant is therefore confirmed.
Residual Review
[62] Even in cases where an authorization is found to be valid, there exists a residual discretion for a court to nonetheless set it aside. Justice Watt summarized this discretion at paragraph 69 of Paryniuk, supra:
What is clear, however, is that previous authority in this court has recognized a residual discretion to set aside a warrant despite the presence of a proper evidentiary predicate for its issuance where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like…
[63] This discretion was confirmed in the recent case of R. v. Castellano [2023] O.J. No. 329 (C.A.).
[64] Is there a basis for setting the warrant aside despite my finding that it is valid? This is not an easy question to answer. I have serious issues with the evidence of PC Young.
[65] Firstly, his evidence on key points was not consistent. As one example, he was asked if there had ever been a time where he tried to corroborate information provided by the source but was unable to do so. At various times in his cross-examination, he answered both yes and no.
[66] He was also asked why he did not include a statement from Source A that the Applicant always carried a firearm around with him. Initially he said he did not include that information in the ITO because he felt it didn’t add to his reasonable grounds. Later, however, when asked if information that the Applicant always carried a firearm with him and that he’d been robbing people would add to his reasonable grounds, he said yes.
[67] He was asked why he did not include a reference to the source’s claim that the Applicant was “on a rampage lately robbing everyone”. He first said he did not include that information as it did not add to his reasonable grounds and also that he’d been trained not to include information that put the subject in a negative light. On further cross-examination he admitted the omission had nothing to do with protecting the Applicant’s character or reputation before the issuing justice.
[68] In a similar vein, he said he left out portions of the Applicant’s criminal record as it wasn’t entirely relevant to the investigation. The difficulty is that he didn’t leave out portions of the record. It is agreed between the parties that the record mentioned in the ITO is the entire criminal record of the Applicant.
[69] The impression I’m left with is of a witness who was taking pains to appear scrupulously fair to the Applicant. But the agreed facts, and his own evidence, do not bear that out.
[70] PC Young was repeatedly unresponsive and evasive in his answers. He invoked informer privilege to explain his unresponsiveness in situations where the privilege really didn’t seem to apply. At times he seemed to be using the privilege as a sword rather than a shield.
[71] All of this leads me to the conclusion that PC Young was an unsatisfactory witness. Concerning as that is, however, it does not factor into the test set out in Paryniuk, supra. To set aside an otherwise valid authorization, I must find that his conduct before the issuing justice so subverted the pre-authorization process that it amounted to an abuse of process. The quality of his testimony before me is not part of that consideration. It is what he said or didn’t say to the issuing justice that I must assess.
[72] On that point, I look at the amplifications and excisions I have made to the ITO.
[73] PC Young should have included information related to being unable to corroborate some information provided by Source A, the relative staleness of some of Source A’s accurate tips, and the fact that some of Source A’s information came from belief rather than direct experience. He should also have included mention that the Applicant always carried a firearm around with him, and that he’d been on a rampage and robbing everyone. PC Young should also have included the surveillance results from 29 April and 3 May, and the specifics of the 4 May surveillance.
[74] He should not have included the bald statement that a firearm was being kept in the target apartment. He should not have included the fact that the Applicant has 30 contacts with the Windsor Police Service since 2006. He should not have included the claim that Source A observed the Applicant in possession of ammunition for the firearm.
[75] I must consider if the conduct of PC Young before the issuing justice, taken in its entirety, amounts to “deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like” (see: Paryniuk, supra).
[76] On PC Young’s own evidence, there was deliberate non-disclosure of material information. Despite acknowledging a duty to be full, frank, and fair, he did not include information that he felt did not advance his claim of reasonable and probable grounds. As I’ve already noted, this is not appropriate in an ex parte application. An informant has a duty to be candid and complete in their presentation of the evidence. They cannot select only those pieces of evidence that help their case.
[77] His repeated claim that he did not want to portray the Applicant in a bad light clashes with his inclusion of the fact that the Applicant had 30 “contacts” with the Windsor Police. He provided no context for those contacts. Was the Applicant a suspect, a victim, a complainant, or a witness? He does not say. All the issuing justice knows is the Applicant is someone with whom police are apparently very familiar. This paints him in exactly the negative light he claimed he wanted to avoid. He provided incomplete information that was prejudicial to the Applicant. The nature of those contacts was surely easily available to him as a police officer, but he chose not to include it. This violates the duty to be full, frank, and fair. It is deliberate non-disclosure that borders on bad faith deception.
[78] He did not include the unsuccessful surveillance attempts from 29 April and 3 May. I reject his explanation for deleting that information from the ITO that it had been included in a previous ITO so he assumed the issuing justice knew about it. Even in cases where multiple authorizations are sought, each application must stand on its own. It will not be evaluated as one of many, with the accumulated knowledge of the issuing justice being considered. When an application is submitted, there is no guarantee it will go to the same justice who read prior applications. I cannot accept PC Young’s reasoning as to why the surveillance information was omitted from the ITO. This was deliberate non-disclosure, but with an explanation that moves it towards sloppiness and away from bad faith.
[79] As to the 4 May surveillance, while the issuing justice should have been told, for example, that the target was wearing a face covering at the time of observation, I find that could be chalked up to sloppiness as well.
[80] Sloppiness is serious. It can rise to the level of negligence. It can have the effect of misleading the issuing justice. But it does not reflect an intention to mislead (see: R. v. Patel [2021] O.J. No. 7534 (S.C.J.)).
[81] The claim that Source A observed the Applicant in possession of ammunition is a conclusory statement that was not substantiated in the ITO. There was no support for it. Even the Crown acknowledged that it should have read “believed” rather than “observed”. Why was that conclusion included when there was no evidence to support it? Given the ITO as it stands after amplification and excision, I can only find that this was deliberately misleading.
[82] In summary, then, I have found deliberate non-disclosure of material information borne of a failure to be full, frank, and fair with the issuing justice. I have found that deliberately misleading information was included in the ITO. These are very serious findings of impropriety.
[83] At the same time, I must note that omitting some of the material information, such as the source saying the Applicant always carried a firearm with him, or that he was robbing people, likely worked to the Applicant’s benefit. Had that information been included it would only have strengthened the grounds for the warrant. In my view, this mitigates the seriousness of the non-disclosure.
[84] Taken as a whole, can I say the conduct of PC Young subverted or corrupted the pre-authorization process?
[85] This is a very close case. I have given it much consideration and deliberation. Recognizing the high standard for this test set in Paryniuk, supra, I find the evidence does not meet this demanding threshold. The warrant will not be set aside on this basis.
[86] I do not want my refusal to set the warrant aside to be taken as an exoneration. My reasons should make it very clear that PC Young’s presentation to the issuing justice, and his testimony before me, were sorely deficient. Parliament has allowed the state to obtain authorizations to seize documents, enter premises, eavesdrop on private communications, and even take bodily samples, all without the affected party being given a right to be heard. It is crucial that when a state actor seeks authorization to do something that would otherwise be a violation of a person’s Charter rights, their actions be beyond reproach. The duty to be full, frank, and fair in seeking an ex parte authorization stretches back to before Confederation. It cannot be ignored.
Result
[87] On the basis of the ITO as it now stands, there are reasonable and probable grounds on which the issuing justice could have issued the warrant. Further, given the high threshold for setting aside an otherwise valid warrant, I decline to do so. The warrant is therefore confirmed to be valid.
Released: 9 May 2023 Signed: Justice S. G. Pratt