ONTARIO COURT OF JUSTICE

DATE: 2023 12 08 COURT FILE No.: Brampton 3111 998 21 17707 and 17708

BETWEEN:

HIS MAJESTY THE KING

— AND —

KINGSLEE CHRISTIE

Before Justice G.P. Renwick

Heard on 05 December 2023 Reasons for Judgment released on 08 December 2023

Counsel: M. Gaspar and E. Taggart..... counsel for the Public Prosecution Service of Canada R. Rusonik................................................... counsel for the Defendant Kingslee Christie

RULING ON GAROFOLI APPLICATION RE: FACIAL VALIDITY

RENWICK J.:

INTRODUCTION

[1] The Applicant is charged with various drug offences on a four-count Information and seven firearm related charges on another Information in respect of a cache of drugs and three handguns seized from an apartment allegedly associated to the Applicant, pursuant to a search warrant executed on 27 October 2021.

[2] Though there have been several court appearances prior to the hearing of this Application for the purpose of discussing and commencing other possible challenges to the Information to Obtain a search warrant (“ITO”), for this ruling the court will confine itself to the submissions received on 05 December 2023 respecting the facial validity of the ITO which has been heavily redacted to protect two confidential informers (“CI’s”).

[3] This hearing was conducted almost entirely on a sealed record, in camera, on consent of the parties. An in-camera hearing is not generally warranted for this type of Application, but given that this Application arose after the Defendant had already commenced another application respecting a sub-facial challenge to the ITO, at the Defendant’s request it was agreed that the hearing could take place on a sealed record to safeguard privileged information (discussed in camera on the earlier date).

[4] During the preparation of a judicial summary, the court and the prosecutor openly engaged in cryptic discussions respecting the contents of the redactions to the ITO. For the most part, the Applicant and counsel were present for discussions such as, “can the first three words of that redaction be disclosed.” On consent, some discussions involved notes passed between the court and the prosecutor. These notes were sealed and made an exhibit on the proceeding. On no more than five occasions during the full-day hearing, in order to expedite these discussions, the Applicant and counsel were briefly excused while the court and prosecutor momentarily spoke on the sealed record.

[5] Once the judicial summary was completed, at the Applicant’s request, oral submissions were immediately heard to supplement written submissions previously filed.

[6] This Application involves facial validity: could the warrant have issued in respect of the Applicant’s apartment on the basis of the evidence presented in the ITO. The Applicant alleges a singular flaw in the ITO: there was an insufficiency of evidence to meet the test for the issuance of the search warrant for the Applicant’s address. There does not appear to be any contest respecting the governing legal principles. Rather, the parties part company on the application of the law to the evidence that was put before the issuing justice and the import of material in the ITO which remains hidden from view.

GOVERNING LEGAL PRINCIPLES

[7] Garofoli hearings involve the determination of the admissibility of evidence. Constitutional considerations involving disclosure, the right to cross-examination, and full answer and defence are contextualized and balanced with other considerations.

[8] The point of a Garofoli hearing is to determine whether the warrant authorizing a search and seizure was valid. The admissibility of the evidence obtained from executing the warrant is in issue. The context involves a challenge to a court order that is presumed to be lawfully made by a judicial officer. The test for the trial judge reviewing a prior authorized search is well settled:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization then he or she should not interfere. [emphasis added]

[9] It must also be kept in mind that the purpose of the ITO is to establish a reasonably grounded belief that the offences alleged were committed and that the requested search would afford evidence of the offence. The ITO must contain reasonable grounds to believe that these statutory preconditions have been met. The ITO affiant is not required to establish the statutory preconditions beyond a reasonable doubt, or even to establish a prima facie case. The threshold for the issuance of a warrant is low. Reasonable grounds exist at the point that "credibly based probability replaces suspicion."

[10] The reviewing court must consider whether the entirety of the affidavit in support of the requested search contains reliable information upon which the authorizing justice could have granted the order; i.e., “some evidence that might reasonably be believed on the basis of which the authorization could have issued.” The ITO must include full, fair, and frank disclosure, but:

…there is no need for it to be as lengthy as À la recherche du temps perdu, as lively as the Kama Sutra, or as detailed as an automotive repair manual…Ideally, an affidavit should be not only full and frank but also clear and concise. It need not include every minute detail of the police investigation over a number of months or even of years.

[11] Whereas the authorizing justice is asked to consider the probability of finding evidence in a particular place, the review conducted herein is a possibility analysis – could the warrant have issued on the basis of what was submitted to the issuing justice. The test for review is exacting and permits no variance:

While different judges asked to grant an authorization on the same evidence might reasonably and properly come to different conclusions as to whether to grant the authorization, the decision of the reviewing judge as to whether the authorization could have been granted is a question of law, which admits of only one correct answer. [emphasis added]

[12] A challenge to a warrant on its face involves examining whether the grounds supporting the warrant meet the test for issuance and/or did the warrant authorize the search that was conducted. A facial validity challenge is fairly simple. The scope of review is fixed: “it is the ITO, not an amplified or enlarged record.” Whereas, “[s]ubfacial challenges to an affidavit go behind the form of the affidavit to attack the reliability of its content,” facial validity attacks are one dimensional: is there a sufficiency of credible evidence supporting the theory that a search of the target location will bear evidential fruit.

[13] Where the reviewing court determines that the search warrant ought not to have been granted, the search warrant is quashed and the evidence seized is deemed the product of a warrantless search. Unless there is any other lawful basis for the seizure at issue, the court will undoubtedly find a breach of s. 8 of the Charter and have to determine whether evidence should be excluded from the defendant’s trial pursuant to s. 24(2).

[14] CI’s and the privilege that attaches to their identity are a necessary evil in the detection and prosecution of criminal offences. Police require informers to solve crimes. The privilege is so vital, it provides almost absolute immunity from disclosure, even “beyond the discretion of a trial judge.” Courts must be alert to improper attempts to discover the identity of CIs and must thwart such attempts.

[15] The redaction of warrants that contain CI information is an exception to the broad disclosure rights of a defendant. The Garofoli six steps provide a procedure for prosecutorial reliance upon protected information:

1. Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.
2. The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.
3. After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.
4. After the determination has been made in (3), the packet material should be provided to the accused.
5. If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.
6. If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. 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. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.

[16] To clarify, not all six steps will be followed in every warrant challenge where there has been reliance upon CI material in the ITO. Some ITOs will contain enough non-CI material to justify the issuance of the warrant. Step five accounts for this. The prosecutor is still required to justify redactions made to protect CI privilege and to summarize the contents of these edits with the trial judge’s approval, but given that no reliance is placed on these portions of the ITO in a step five situation, the first four steps, as in this case, are usually uncontested.

[17] Where, as here, the prosecution must rely upon some of the redacted material to meet the Garofoli test upon review (a sufficiency of evidence, reasonably believed, which could have supported the issuance of the warrant), resort to step six is inevitable and the first four steps take on greater significance. Only where the redactions placed to protect CI privilege have taken away so much of the grounds that the affiant’s beliefs are no longer objectively reasonable is the prosecutor required to apply under step six for the court to consider some or all of the privileged contents while providing judicial summaries.

[18] The judicial summary process (whether the court engages in the process of summarizing the redactions or simply approves of the prosecutorial draft of summaries) is a critical waypoint along the step six journey. The step six analysis is predicated upon the utility of the summaries to assist an applicant in challenging the privileged content.

[19] A well-crafted summary of redacted information is essential to permit a defendant to exercise the right to make full answer and defence. The purpose of the judicial summary is to include “as much information as is possible to allow the accused to mount both a facial and a sub-facial attack on the ITO while nonetheless ensuring that informer privilege is maintained.” The summary must provide a defendant with a meaningful basis to challenge whether the CI material meets the ‘three Cs’ criteria (credible, compelling, and corroborated). A weakness in one area can be compensated for in the other two.

[20] While there is a paradox in having an applicant challenge information which may be largely redacted, it must always be remembered that the defendant does not appear at a Garofoli hearing empty-handed. The defendant will have Stinchcombe disclosure (the entirety of the investigative file that is not clearly irrelevant or privileged), additional Garofoli disclosure (documents or information underlying the contents of the ITO), evidence adduced by the prosecution by way of amplification, evidence tendered by the defendant, the testimony of any affiant/sub-affiant following cross-examination, the redacted ITO, and judicial summaries of the nature of the hidden information. The step six process also includes a failsafe protective mechanism: to the extent that redacted information cannot be summarized (without tending to reveal the identity of the CI), it cannot be taken into account during the step six review.

[21] The Garofoli six steps make it clear that the provision of a well written judicial summary is the mechanism that ensures that the right to make full answer and defence exists when challenging a heavily redacted ITO. The trial judge must make a qualitative assessment of a defendant’s ability to challenge the redacted portions and the weight to be given to them:

Similarly, in assessing the weight to be given to the redacted information, the reviewing judge should consider the nature of the information, the extent to which the judicial summary allowed the accused to challenge it, and whether its nature is such that it was susceptible to being challenged by cross-examination or otherwise.

[22] Many of the attacks upon step six reliance involve an assessment of whether the judicial summary actually fulfills its purpose: does the defendant have a sufficiency of information to challenge the veracity of the CI privilege-protected information.

[23] The Ontario Court of Appeal has found that the step six procedure is both fair and constitutional. The appropriate balance between the needs of law enforcement (the overriding goal of protecting CIs) and the ability to make full answer and defence is struck by the provision of judicial summaries that enable an applicant to challenge privileged information by argument or evidence. Reducing the weight to be given to redacted portions of the ITO is another judicial tool to reduce the disclosure disparity.

[24] If the judicial summary is found wanting (i.e., does not provide a sufficiency of information about the nature of the redacted portions of the ITO to permit the applicant to challenge the contents), the prosecutor may not be able to rely upon some redacted portions of the ITO and the warrant may fail.

[25] The well-armed defendant can make hypothetical and alternative arguments respecting redacted information that is summarized. Though the step six procedure is somewhat opaque, it has been said that “it can provide the defence with the ability to meaningfully and effectively mount a challenge to a redacted ITO.”

OVERVIEW

[26] For the purposes of the instant Application, the Defendant has not alleged fraud, non-disclosure, or an attempt to mislead on the part of the ITO affiant. The argument is uncomplicated: there was an insufficient basis upon which to ground a reasonable belief that evidence of the suspected crimes would be found in the residence allegedly visited once by the target of the investigation. From the Defendants’ perspective, the ITO did not establish that the initial suspect (not the Defendant) had any association to the Defendant’s residence which could ground any suspicion (let alone a reasonable belief) that the residence was used to store drugs or firearms, or any other evidence relating to the suspect’s apparent drug trafficking enterprise.

[27] It will be helpful to offer a brief review of the contents of the ITO to contextualize the arguments advanced.

[28] The Toronto Police Gun and Gang Task Force received CI information about a male believed to be in possession of an illegal firearm and believed to be trafficking in illegal narcotics. The police sought a warrant to search two residences and two vehicles believed to be associated to the male and a female suspect.

[29] Police conducted surveillance five times over six days and observed the male (and sometimes the female suspect) drive between the first residence, where they appeared to be living, and other residences, where visits were short. On two occasions, police believed that activity consistent with drug trafficking had taken place (paras. 35-42).

[30] Based on police experience, the affiant claimed to believe that residences, vehicles, storage lockers, and “in this case” a “stash” location (see para. 46 of the ITO) are places utilized by suspects to store their contraband (paras. 44-47 and 50). From the judicial summary of paragraph 48, the affiant even offered an opinion about the male suspect’s role in the hierarchy of drug trafficking.

[31] Appendix D of the ITO included specific information provided by two CI’s about the male suspect’s drug trafficking business.

[32] CI #1 spoke to police several times (edits #2 and 4). The CI’s motivation for offering information was to receive some form of consideration (edit #5). Police advised the informer that only accurate information would be rewarded with a benefit and the CI was cautioned about providing false or unreliable information (edits #6, 16, and 17).

[33] The information received from CI #1 was from “firsthand observations and interactions with the suspects.” Redacted information detailed how the CI knew the male suspect (edit #9).

[34] Redacted content provided the issuing justice with information about the CI’s involvement (if any) in criminal conduct, including any information about prior convictions or any outstanding charges (edits #12-14).

[35] In the past, CI #1 had provided police with accurate and reliable information (edits #18-21). This human source is a registered CI (edit #22). The ITO made clear that the affiant believed that CI #1 had never provided unreliable information to police (edit #21).

[36] CI #1 knows the male suspect, T.B., as “Yung Drilla” (edit #24). The source provided several pieces of information about the suspect’s drug operation, criminal activity (possession/distribution of drugs and possession of a firearm), drug quantities involved, and information about how Yung Drilla stored his drugs (edits #23, 27, 29, 30-33, 35, 36, 41, and 45-52). Much of the information provided by CI #1 was corroborated by the police (edits # 24, 26, 27, 34-37, 43, 45-47, and 52).

[37] CI #2 provided information about alleged fentanyl possession by “Yung Drilla,” who was also known to possess a firearm (edits #58 and 76). On several occasions (edits #76, 80, 87, and 90), CI #2 provided police with information about Yung Drilla’s on-going criminal activities, drug trafficking on multiple occasions, storage of drugs, and quantities of drugs possessed (edits # 77, 80-85, and 87-93).

[38] The CI’s motivation for offering the information was to receive some form of consideration (edit #60). Police advised the informer that only accurate information would be rewarded with a benefit and the CI was cautioned about providing false or unreliable information (edits #61, 70, and 71).

[39] Redacted content provided the issuing justice with information about the CI’s involvement (if any) in criminal conduct, including any information about prior convictions or any outstanding charges (edits #66-68).

[40] In the past, CI #2 had provided accurate and reliable information to police (edits #72 and 73). This human source is a registered CI (edit #75). The affiant believed that CI #2 had never provided unreliable information to the police (edit #74).

POSITIONS OF THE PARTIES

The Applicant

[41] Counsel for the Applicant took no issue with the ITO generally, or the other address or vehicles included in the ITO for which search warrants were also granted. Issue was taken with the alleged lack of any actual evidence to establish a reasonable probability that contraband would be found at the residence allegedly associated to the Applicant. The Applicant argued that the redacted ITO provided no basis for grounding a belief that drugs or a firearm would be found at his residence. As far as the Applicant could tell, only one piece of information connected the investigation to his address: surveillance on one occasion where the suspect attended the Applicant’s building (paras. 39-41 of the ITO).

[42] Ancillary to this position is the claim that the redacted information (even judicially summarized) was so impenetrable that there was no way to challenge the protected information. Accordingly, the Applicant cannot make full answer and defence. If this position is accepted, any redacted information that fills the hiatus to establish the probability of finding evidence at the Applicant’s residence must be removed from consideration of whether the search warrant could have been granted.

The Respondent

[43] The prosecution submitted that the warrant was properly issued and reliance was placed on the content of all of the redactions as judicially summarized, and specifically those numbered 35, 36, 45, 48, 52, 84, and 85 in Appendix D, in order to meet the test on review. From its perspective, the judicial summaries, answers to questions asked during the judicial summary process, and arguments made during the hearing demonstrated a vigorous challenge to the privileged material. When the totality of the evidence known coupled with the protected information is considered, there was an abundance of grounds underpinning the search warrant for the Applicant’s residence.

ANALYSIS

[44] There are two main issues for resolution: does the redacted ITO permit a meaningful challenge by the Applicant of the CI information relied upon by the prosecution to support the issuance of the warrant; and, only if the answer to the first issue is positive, taking into account the information fully disclosed in the ITO along with the additional information within the judicial summaries, could the search warrant have lawfully issued to authorise a search of the Applicant’s home.

[45] Concessions by the prosecution contextualized the issues for consideration. First, it was conceded that without reliance on the redacted portions of the ITO the warrant could not be found to have been properly issued in respect of the Applicant’s address. Second, neither of the two CI’s provided this address to the police.

The Applicant Meaningfully Challenged the Redactions to the ITO

[46] Our Court of Appeal has clarified the nature of the Applicant’s challenge and the Respondent’s predicament:

Garofoli explains that a judge can accede to a Crown request to proceed to step six as long as the accused is "sufficiently aware of the nature of the excised material to challenge it in argument or by evidence." Put another way, the judicial summary of the redacted material provided to the accused, combined with the redacted ITO, must be enough to ensure the accused is in a position to exercise his or her right to make full answer and defence. Only then can step six be employed. In assessing the summary's sufficiency, however, account is to be taken of the fact that the accused has received disclosure, that he or she can, with leave, cross examine the affiant, and that he or she can lead evidence on the application. And, as I will explain, the right to make full answer and defence is to be assessed taking into account that a Garofoli hearing is an admissibility hearing, not a trial on the merits.

[47] There are several ways an applicant can meaningfully challenge CI information:

i. Highlight areas of omission in the ITO; ii. Attack the steps taken to corroborate the CI information; iii. Make general arguments about CI reliability; iv. Make alternative arguments; v. Argue that there is an insufficiency of information with which to assess the CI’s credibility; vi. Produce evidence to undermine the CI information; and vii. Suggest hypothetical areas where there may be gaps in the CI information reducing any sense that the information is particularly compelling.

[48] In this case, the Applicant did not lead any evidence to undermine the CI information that Drilla was a drug trafficker who possessed a firearm and used a stash house. Instead, the Applicant relied on alternative arguments and hypotheticals.

[49] It must also be remembered that the Applicant participated, meaningfully in the creation of the judicial summaries. This was an all-day process. The Respondent fielded questions about the length of redactions, the number of words they contained, the similarity or differences between similar redactions relative to each CI, and hypotheticals used by the Applicant to challenge the summarized information. Although the Applicant (and counsel) were excluded from notes passed between the court and the prosecutor, and on several occasions they were physically excluded from brief exchanges between the court and the prosecutor, there can be no legitimate complaint about the judicial summary process. The Applicant played a meaningful role in the hearing.

[50] Simply put, the Applicant’s concern is that in the absence of the actual content of the redacted content there can be no meaningful challenge to that information, thus the Applicant is deprived of the opportunity to make full answer and defence.

[51] Respectfully, this is misguided. The caselaw is clear in respect of the right to make full answer and defence and the scope of disclosure to be provided by judicial summaries:

To give effect to the right to make full answer and defence at step six, the accused must be able to mount an effective challenge of the ITO and, in particular, challenge in argument or by evidence whether the Debot criteria of compellability, credibility, and corroboration have been met. At the same time, informer privilege must be protected. It could be argued that it is impossible for an accused to meaningfully challenge whether the three Debot factors were met if the accused does not have access to the redacted information.

Step six of Garofoli, however, clearly contemplates this situation. In step six, some information provided by or concerning the informer is not revealed to the accused but is nonetheless available to the judge in assessing the validity of the warrant. The only caveat is that the accused must be "sufficiently aware of the nature of the excised material to challenge it in argument or by evidence."

Two aspects of this caveat are worth highlighting. One is that the accused need be aware of only the nature of the redacted details, not the details themselves. The other is that the accused's awareness, gained through the judicial summary and other available information, must be sufficient to allow the accused to mount a challenge of the redacted details both in argument and by evidence. In my view, this means an accused's attack on an ITO and the validity of a search warrant can be made on either a facial or sub-facial basis, or both. In other words, the accused must, through the judicial summary, cross-examination of the affiant, or the leading of evidence, be in a position to mount both a facial and sub-facial attack on the warrant, including a challenge to those parts of the ITO that are redacted but relied on by the trial judge.

[52] After a consideration of the totality of circumstances, I am satisfied that the Applicant has meaningfully challenged the redacted information for several reasons.

[53] First, throughout this Application, I have considered my obligation to minimize redactions in the ITO to ensure that the Applicant had a meaningful basis to challenge the grounds for issuance of the warrant. The court made many substantive changes to improve the quality and breadth of information conveyed by the prosecutor’s draft of the judicial summaries. I was guided by my own awareness of where there might be questions of substance connected with the three evaluative criteria in R. v Debot.

[54] Second, despite the invisibility of the information relied upon by the prosecutor, the Applicant made pertinent suggestions, questions, and hypothetical arguments about the potential shortcomings in the ITO. This demonstrates that the step six process, though laborious, is not necessarily unfair or ineffectual. In this case, the Applicant was able to know the nature of the redacted material and consequently made meaningful, potentially persuasive, forensic challenges to the unknown information.

[55] Last, the ITO was well-drafted. It permitted the Applicant to focus on one issue: the sufficiency of information respecting the credibly based probability that evidence of the suspected offences would be found at the Applicant’s residence. From the Applicant’s perspective, the facial validity attack involved only two simple questions: was the CI information credible, compelling, and sufficiently corroborated; and were there any grounds to believe that evidence of the suspected crimes would be found at his home.

[56] Granted, much of the information in respect of the background and motivations of the CI’s was unknown to the Applicant, this in and of itself is not problematic: in fact, it is emblematic of the tension between the necessity of police to rely on CI information and the almost impenetrable nature of the CI privilege. In light of the judicial summary process, the actual summaries, and other information provided during the hearing, I am satisfied that there can be no realistic suggestion that the Applicant’s lack of disclosure prejudiced the Applicant from meaningfully challenging both the reliability and the value of the information provided by the CI’s.

The CI Information was Credible, Compelling, and Corroborated

[57] The affiant went to some lengths to persuade the issuing justice that the two CI’s were credible. Each had been successfully used in the past. As well, the issuing justice would have had a complete picture of the character of the CI’s (their motivation for assisting the police, their criminal histories, if any, their status as registered informants, their lack of ever having provided unreliable information, the fact that they were cautioned about the consequences of misleading police, and that they could not benefit from providing false or unreliable information). This would have put the issuing justice in a good position to assess the credibility (strengths and weaknesses) of the CI’s.

[58] The Applicant can never know how compelling was the information provided by the CI’s. Suffice it to say, there were several paragraphs of information, some detailed, some more generic, relating to the suspect’s drug trafficking as well as information about his personal circumstances. In the case of CI #1, the information provided was first-hand. The information in some cases was quite specific and unlikely to be the product of rumour or general knowledge. This too was not an area of weakness in the ITO.

[59] Corroboration of CI information permits the issuing justice to evaluate the reliability of the CI’s. This assists to determine if the affiant’s grounds for belief are viable. That said, there is no requirement for the police to corroborate every aspect of the CI information, much less the criminality alleged. Indeed, in most cases, the alleged crimes will be difficult to corroborate, providing necessity for the reliance upon CI information.

[60] All the same, much of the information provided by the two CI’s was corroborated by the police:

i. Police corroborated some of the CI information relating to the suspect’s drug dealing business (edits #27, 35, 36, 45, 46, 47, 52, 84, and 85 in App. D); ii. Police corroborated some of the CI information relating to the personal circumstances of the suspect (edits #24, 26, 34, 37, 43, 78, and 79 in App. D); and iii. Police made observations consistent with some of the CI information (paras. 35, 36, 37, 39, and 42 of the ITO).

[61] I am satisfied that there was a sufficiency of evidence in the ITO with which the issuing justice would have been able to assess the value of the CI information. It appears (by having issued the warrant) that the justice was satisfied that all three of the Debot criteria were met. In the circumstances, I find that this was a reasonable conclusion.

The Search Warrant was Lawfully Issued for the Applicant’s Home

[62] The Applicant made several arguments about the ITO’s apparent roving grounds, consonant with the attack upon the problematic ITO in the case of R. v. Herta. Without any full account of Drilla’s movements in the few days he was under police surveillance, how could there be any credibly based belief that evidence would be found at a location the suspect briefly visited only once.

[63] Although the Applicant cannot know exactly what was written to lead the issuing justice to conclude that there was a credibly based probability that this address would contain evidence of the suspect’s alleged criminality, the binary nature of the problem admits of an elegant truth: either there was or was not sufficient information to connect Drilla’s crimes to the Applicant’s residence.

[64] It is important to remember that reasonable grounds to believe is an intermediate threshold of certainty. It is more than a bald suspicion (prejudice), or a reasonable suspicion (which is a state of possibility in respect of a given fact). It is less than proof on a balance of probabilities yet involves a state of probability.

[65] An ITO affiant must consider all information presented to her and she cannot disregard information unless it is inherently untrustworthy, unworthy of belief, or known to be false. The information must only be reasonably believed. And there is an objective component: the information must reasonably give rise to the stated belief.

[66] An ITO affiant is entitled to rely on hearsay, proclivities, and personal experience, unless she has a reason to doubt the accuracy or truth of the information upon which she relies. Obtaining reasonable grounds is not about perfection or even perfect accuracy. Like reasonable grounds in other contexts (warrantless searches or arrests), police reliance on imperfect information cannot be faulted unless it was unreasonable to accept the information at face value:

We must not lose sight of the fact that the wiretap authorization is an investigatory tool. At that stage, a reasonable belief in the existence of the requisite statutory grounds will suffice for the granting of an authorization. Upon further investigation, the grounds relied upon in support of the authorization may prove to be false. That fact does not retroactively invalidate what was an otherwise valid authorization.

[67] Similarly, the Supreme Court reminds us in R. v. Crevier that it is not the ultimate truth of the CI information that is at issue during a Garofoli application. Rather, the value of that information must be qualitatively assessed using the Debot criteria.

[68] The final general point I would make about the test for issuance involves the role played by inferential reasoning. In the absence of direct evidence, an issuing justice is entitled to draw reasonable inferences from the evidence presented in an ITO.

[69] The key question becomes whether it was an available inference on the information presented in the ITO for the issuing justice to find that there was a credibly based belief that Drilla was using the Applicant’s residence to store his drugs.

[70] The following primary facts were revealed in the ITO:

i. Drilla was a drug trafficker; the redacted portions of the ITO contained information about the quantities of drugs he possessed (paras. 46 and 48 of the ITO and edits #23, 87, and 88 in App. D); ii. The affiant believed that drugs are routinely found in locations where suspects reside, or vehicles they use, “and in this case a ‘stash’ location” (para. 46 of the ITO); iii. Both CI’s provided information in respect of how the suspect stores his drugs (edits #35, 36, 45, 48, 52, 84, and 85 in App. D); and iv. Police observed the suspect travel to the building and the floor where the Applicant is thought to be living; the suspect entered the secure building (presumably using a key or a fob) after parking in one of the tenant spaces; during this observation, the police believed the behaviour of the suspect was consistent with drug dealing activity (paras. 39-41 of the ITO).

[71] The Applicant compared this investigation and the conclusions of the affiant with the circumstances in R. v. Herta. In that case, there was a lack of information linking the belief that the suspect, who was known to possess a rifle, would have kept the rifle in Mr. Herta’s home, where he was seen walking toward on one occasion, empty-handed.

[72] The comparison fails. There are reasonable inferences to be drawn from the known facts consistent with the suspect’s use of the Applicant’s apartment as a location to store his drugs.

[73] In light of the following, I find that the ITO contains a sufficiency of information respecting reasonable grounds to believe that the target residence would contain evidence of the suspected offences:

i. The ITO contained information about the quantities of drugs possessed by the suspect; ii. The suspect was known to use a stash house; iii. The suspect used a satchel when visiting the residence (presumably to carry drugs or other contraband to and/or from the residence); iv. There was a tangible linkage between the suspect and the target residence: a. It is reasonable to infer that the suspect had a key/fob to gain access to the building, given that the unknown male had to use a fob while inside the building; and b. It is also reasonable to infer that the suspect had the right to use parking spot GOV26 (presumably a tenant’s spot); v. The behaviour of the suspect at the residence was consistent with drug trafficking activity; and vi. The residency was known to be temporary, a fact that lends itself to a reasonable inference that this benefits the drug dealing enterprise because stash houses are occasionally changed to avoid detection or robbery.

[74] When this court considers the evidence presented and appropriately summarized in the redacted portions of the ITO, the belief that there would be drugs found in the Applicant’s home becomes most reasonable. In considering all of the redacted CI information, the belief becomes almost irresistible. I have no difficulty in concluding that the test for the issuance of the warrant was easily met after a full consideration of the investigation and the CI information found within the ITO.

CONCLUSION

[75] In view of my conclusions above, the Application is dismissed.

Released: 08 December 2023 Justice G. Paul Renwick

Footnotes

1. R. v. Garofoli, [1990] 2 SCR 1421.
2. Hereafter, for the sake of simplicity, I will refer to the site of the search at issue as the Applicant’s residence.
3. This procedure is specifically endorsed in chapter 4: “Charter Issues in Drug Cases” of Prosecuting and Defending Drug Cases: A Practitioner’s Handbook, by Nathan Gorham, Jeremy Streeter, and Breana Vandebeek (2019: Emond Professional, Toronto) at page 109.
4. R. v. Pires and R. v. Lising, 2005 SCC 66 at paras. 28-31. See also R. v. Crevier, 2015 ONCA 619 at paras. 54-60 and 99-102. At para. 101 of Crevier, the Court of Appeal clarifies that the right to make full answer and defence during a Garofoli application is “defined in context; it is not limited or reduced.”
5. Garofoli, supra, at para. 56.
6. Hunter v. Southam Inc., [1984] 2 SCR 145.
7. R. v. Araujo, 2000 SCC 65 at para. 51.
8. Araujo, supra, at para. 46.
9. R. v. Meddui, 2021 ONCA 249 at para. 5.
10. Araujo, supra, at para. 19 and Crevier, supra, at para. 73.
11. R. v. Sadikov, 2014 ONCA 72 at para. 37.
12. Araujo, supra, at para. 50.
13. Pires, supra, at para. 8. In egregious cases of police misconduct in the pre-authorization process, a stay of the charges may be appropriate. See R. v. Paryniuk, 2017 ONCA 87.
14. Bisaillon v. Keable, [1983] 2 SCR 60 and R. v. Leipert, [1997] 1 SCR 281 at paras. 9-12.
15. R. v. Basi, 2009 SCC 52 at para. 37 and Bisaillon, supra.
16. Bisaillon, supra, as cited in Garofoli, supra, at para. 73.
17. R. v. Stinchcombe, [1991] 3 SCR 326 at paras. 16-17 and 20-25.
18. Garofoli, supra, at para. 79.
19. Crevier, supra, at para. 83.
20. R. v. Debot, [1989] 2 SCR 1140 at para. 53.
21. Crevier, supra, at para. 107.
22. Crevier, supra, at para. 87.
23. Crevier, supra, at para. 88.
24. R. v. Gero, 2021 ONCA 60 at paras. 40-53.
25. The court in Crevier suggests possible challenges that could arise under step six at paras. 77-79.
26. Crevier, supra, at paras. 88 and 90.
27. See R. v. Iyeke, 2016 ONSC 6900 at paras. 18-20, for example.
28. Gorham, Streeter, Vandebeek, supra, at p. 111.
29. Here, I will refer to the actual contents of the ITO as well as the judicial summaries of redacted content.
30. There are actually two identical ITO’s (one for alleged Criminal Code offences and one for alleged Controlled Drugs and Substances Act offences).
31. Redactions in Appendix D are numbered identically in both ITO’s.
32. Crevier, supra, at para. 43.
33. Crevier, supra, at paras. 77-80.
34. This is not to suggest that the prosecutor provided an answer to every question asked.
35. Crevier, supra, at paras. 70-72.
36. R. v. Caissey, 2007 ABCA 380 at paras. 23-25.
37. R. v. Herta, 2018 ONCA 927 at para. 51.
38. R. v. Keshavarz, 2022 ONCA 312 at para. 28.
39. R. v. Storrey, [1990] 1 SCR 241 at para. 17.
40. Pires, supra, at para. 41.
41. Crevier, supra, at para. 65.
42. R. v. Kalonji, 2022 ONCA 415 at paras. 24 and 25 and R. v. Hamouth, 2023 ONCA 518 at para. 11.
43. A draft of this judgment was produced to the prosecutor on 07 December 2023 to seek input respecting any contents which may (inadvertently) tend to identify a confidential informant. After obtaining that input, no changes were required, however, I performed my last editorial review of the judgment (changes were made for diction, readability, and factual accuracy) before its release to all parties.