Court File and Parties

Court File No.: Toronto 998-23-10002014 Date: 2024-06-18 Ontario Court of Justice

Between: His Majesty The King — And — Mark Thompson

Before: Justice Christine Mainville

Counsel: Chris Kalantzis, for the Crown Alana Page, for the accused

Heard: June 17 and 18, 2024 Reasons for Judgment Released: June 18, 2024

Reasons for Judgment

Mainville J.:

[1] Mr. Thompson is charged with possession of several Schedule 1 substances and one Schedule 3 substance for the purpose of trafficking, under the Controlled Drugs and Substances Act (CDSA). He is also charged with being in possession of the proceeds of crime under $5,000.

[2] Mr. Thompson filed a Charter application that challenges the arresting officer’s grounds for his warrantless arrest and search incident to arrest, arguing that his arrest and search were in violation of his s. 9 right against arbitrary detention and his s. 8 right not to be subjected to unreasonable searches and seizures.

[3] Mr. Thompson’s arrest and search were conducted primarily though not exclusively on the basis of information obtained by the police from a confidential informant (CI).

[4] The defence has not disputed this status and the privilege that attaches to CIs is thus engaged.

[5] Given that this was a warrantless arrest and search, the Crown will bear the onus of establishing that the arrest and search incident to arrest were lawful. It proposes to call two officers involved in the accused’s arrest to establish the necessary grounds.

[6] However, some information forming the basis for these grounds is subject to the Crown’s CI privilege claim. The Crown has accordingly disclosed a written account of the arresting officer’s grounds, based on information from the source’s handler, redacted for CI privilege. This document has been filed as Exhibit 1 in these proceedings.

[7] The Crown does not contend that this account, as redacted, would be sufficient to meet the Debot test that it must meet. When an arrest is made based on CI information, based on that test, the information must be assessed to determine the extent to which it is compelling, credible and corroborated – to determine whether the CI tip is reliable: R. v. Debot, 1989 2 S.C.R. 1140 at para. 53.

[8] The Crown instead invokes Step 6 of the procedure set out in R. v. Garofoli, [1990] 2 S.C.R. 1421, to enable me to go behind the redactions and consider the redacted information, provided that the defence receives a sufficient judicial summary of the information contained therein.

[9] While this measure is typically raised in the context of a challenge to an Information to Obtain a Warrant (ITO), the courts have had recourse to the procedure in cases akin to this one, where the defence challenges warrantless grounds for arrest: see, for e.g. R. v. Iraheta, 2017 ONSC 2467 (appeal dismissed, though not on this ground); R. v. Williams, 2018 ONSC 3654. The defence does not dispute the Crown’s recourse to this procedure in the case at bar.

[10] The Crown provided a draft judicial summary for my review and consideration, along with the unredacted version of Exhibit 1, the CI tip. The summary tracks the redactions in Exhibit 1 and provides some descriptor of the nature of the redacted information.

[11] I reviewed this proposed summary and, on the consent of both parties, conducted an ex parte and in camera hearing with Crown counsel to question some of the summaries put forward and canvass edits to these summaries. This hearing was recorded and is currently sealed.

[12] As a result of this exchange, I produced a judicial summary to the defence that contained more information than the Crown’s proposed judicial summary. The Crown confirmed that the information disclosed does not tend to identify the CI and therefore can be disclosed.

[13] I then heard submissions on Step 6 and the sufficiency of this judicial summary.

[14] Defence counsel argues that the summary remains insufficient to enable the accused to properly challenge the grounds put forward by the Crown.

[15] The Crown provided further clarifications during argument and a final, revised, judicial summary was produced. Crown counsel argues that this summary is sufficient to permit the defence to respond to it and that I may therefore consider – for the purpose of the defence’s Charter application – the excised information that underlies the summaries provided to the defence.

Facts relating to the CI tip

[16] Exhibit 1, as redacted to protect the identity of the CI, makes clear that the information provided by the CI was from first-hand knowledge (para. 2(a)). It also states that the informer was cautioned about providing false information and how this may constitute an offence.

[17] The exhibit also relays that the informer is immersed in the drug subculture (para. 3(b)) and indeed has been deeply involved in the illegal drug trafficking community (para. 5(a)).

[18] Whether or not the informer has a criminal record has been redacted. Exhibit 1 does indicate that they have never been charged or convicted of perjury or obstruct justice. The judicial summary conveys that whether the informer has a criminal record and whether they face any outstanding charges is addressed in the unredacted version.

[19] The informer’s tip related to a male named “Juicy Black”, known to the source’s handler as the accused Mark Thompson. The informer described Juicy Black as being roughly 5’8”. The judicial summary indicates that a description of Juicy Black’s clothing was provided, but this description is not disclosed. According to Exhibit 1, the informer was shown a photo of Mark Thompson and confirmed him to be Juicy Black.

[20] The tip indicates that Juicy Black uses 389 Church Street. The judicial summary adds that this is in relation to Juicy Black’s drug trafficking modus operandi.

[21] The tip sets out types of drugs that Juicy Black has – i.e. Tina, coke and car fentanyl. The judicial summary indicates that the quantities and modus operandi relating to some of these drugs is specified in the tip but has been redacted to protect informer privilege.

[22] Exhibit 1 does not contain any information about the informer’s relationship with or to the accused or Juicy Black, other than stating that the informer purchased fentanyl from Juicy Black. The judicial summary makes clear that the quantity of fentanyl purchased was included in the tip but has been redacted, and that this purchase occurred within 30 days of the date of the tip. (Because the tip is said to have been provided within 60 days of the accused’s arrest, it should be noted that the drug transaction could have occurred anywhere up to 90 days prior to the accused’s arrest). The tip does not contain any information about how they first came into contact and the length of time the informer has known the accused or “Juicy Black” and the frequency of the contact between them.

[23] The tip also provided three addresses that Juicy Black is known to frequent: 40 Asquith Ave, 220 Oak St, and 389 Church St. It advises that Juicy Black uses taxis to commute between the addresses and has all his drugs in his backpack. The judicial summary indicates that the type of taxi used was redacted. The tip sets out that Juicy Black sells to everyone in the building.

[24] The judicial summary indicates that the informer provided personal identifying information relating to Juicy Black, which information was known to the handler and was as such corroborated.

[25] Exhibit 1 indicates that the informer has been proven reliable on previous occasions and the information provided to peace officers has proven to be fruitful (para. 2(a)). The judicial summary indicates that Exhibit 1 contains information about previous information provided by the informer that has led to arrests and seizures. More specifically, it states that the source has provided information to police in their capacity as a source and been proven reliable by giving information that has led to seizures and arrests between five and ten times, and within six months of this case (Exhibit 5, para. 6).

[26] Exhibit 1, para. 2(a), also states that there have been no documented occasions of the CI providing misleading or unreliable information.

[27] Further, the summary addresses the fact that the informer had a motivation for providing the information, though it does not identify what that is. Indeed, Exhibit 1 includes a section called “Motivation of CS1 in Providing Information”. What the confidential source is seeking has been redacted. The judicial summary makes clear that the motivation is what has been redacted.

[28] Exhibit 1 adds that the CI was advised that they will only receive consideration for the information they provide so long as the information provided is proved to be accurate, and once the investigation has been successfully completed. It also states that the CI has not made a demand for upfront financial compensation for the information provided. The tip indicates that the handler has discussed with the CI that they may be financially compensated at the completion of any investigation that involved the use of the information they provided.

[29] Finally, the judicial summary addresses the recency of the information that the informer provided to police. It states that the tip was provided within 60 days of the accused’s arrest on March 13, 2023.

[30] Aside from the timeframe relating to the informer’s drug transaction with the accused and for the prior tips provided, the summary does not provide further timelines.

[31] The summary tracks the redactions, in accordance with the best practice set out at para. 85 of R. v. Crevier, 2015 ONCA 619.

Step 6 of Garofoli

[32] Garofoli establishes that the court should consider the unredacted information “only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.”: Garofoli, as cited in Crevier, at para 71.

[33] The court is to consider whether the judicial summary, crafted in such a way as to not compromise informant confidentiality, assists with this objective.

[34] The court must be mindful of the precariousness of deciding what to disclose, taking care not to reveal information that could identify the informant or narrow the pool of who the informant might be. As the Court of Appeal for Ontario cautions: “Even the slightest piece of information about the informer gleaned from the police files could serve to eliminate some members of the pool or identify the informer”: R. v. Omar, 2007 ONCA 117, at para. 40.

[35] In Crevier, at para. 72, the Court of Appeal noted that “the accused need be aware of only the nature of the redacted details, not the details themselves.” The accused must also be in a position to mount a challenge on the information, including on those parts that are redacted but relied on by the trial judge. In particular, the accused must be able to “challenge in argument or by evidence whether the Debot criteria of compellability, credibility, and corroboration have been met”: Crevier, at para 70.

[36] This case does not relate to a challenge of an ITO. Rather, the accused challenges the lawfulness and constitutionality of his warrantless arrest and related search. More specifically, it challenges the sufficiency of the grounds on which the police arrested and searched the accused. The police may arrest without a warrant where they have reasonable and probable grounds to believe that the accused committed (or is about to commit) an indictable offence. The reasonable and probable grounds standard includes subjective and objective elements. Under the subjective element, the officer must genuinely believe, on the requisite standard, that the accused is implicated in the criminal offence under investigation. The objective component of the test requires that the officer’s belief be objectively reasonable in light of the information in his or her possession at the time of the arrest.

[37] As indicated, the grounds relied on in this case rested significantly on information provided by a confidential source. When the police rely on information from a confidential source, consideration must be given to whether the information is compelling, credible and/or corroborated by other aspects of the police investigation. These are not discrete categories and are not to be treated as silos. Weaknesses in one area may be offset by strengths in another: Debot; R. v. Charles, 2024 SKCA 8.

[38] These criteria inform the analysis of the sufficiency of the information provided in the judicial summary.

[39] At para. 83, the Court in Crevier discussed the balance between providing the defence with sufficient awareness of the excised material to challenge it in argument or by evidence, while at the same time ensuring informer privilege is maintained. It stated that “the summary will never be a complete substitute for full disclosure, given the need to protect informer privilege.”

[40] The parties agree that if some of the redacted information cannot be summarized in a sufficient way, then the Crown cannot ask the court to consider it: Crevier, at para. 87.

Sufficiency of the judicial summary

[41] The defence submissions focused on the following general areas of concern.

[42] First, recency of the information. I agree that this sort of information is important to enable a proper challenge to the information and to determine the reliability of the tip provided.

[43] This was addressed in a couple of respects further to defence counsel’s submissions. A timeframe was indeed provided in respect of when the tip was provided by the informant to police (within 60 days of arrest) and of when the informer states he engaged in a drug transaction with the accused (within 30 days of this tip).

[44] I deem these timeframes to be sufficient to enable the accused to mount a challenge to the information.

[45] Indeed, in Crevier, one example specifically provided by the court was that of a CI telling the police that he or she participated in a hand-to-hand drug transaction with the accused and although the specific date might be redacted, the month in which it is said to have occurred is contained in the summary. The Court deemed such information to be sufficient to mount a sub-facial challenge: Crevier, at para. 79.

[46] Here, the window is admittedly wider. Given the information that the transaction would have occurred within 30 days of the tip being provided to the police, which tip was provided within 60 days of arrest, this places it in time within 90 days of the accused’s arrest of March 13, 2023.

[47] Nevertheless, the window of time is not so wide as to not afford the accused the ability to comment about its recency. It does help identify a relevant timeframe in relation to when the police acted on the information. Further, as pointed out by the Crown, the defence may argue in alternatives: that the farther removed from the time of arrest, the weaker the tip becomes.

[48] The defence was also informed of the level of specificity that was included in the tip – that is, that the CI’s information does indicate with specificity the exact date on which the transaction would have taken place.

[49] The above in my view sufficiently places the event in time to enable the accused to mount a challenge to the information.

[50] The defence also points to para. 8(i) as lacking information as to the time period during which Juicy Black would have been seen with some quantity of specified drugs. However, there is no summary to be provided in respect of that event or indeed any timeframe relating to the remaining information conveyed by the informant, as this information is not included in the unredacted version. This can be a matter for argument on the Charter application proper.

[51] Second, the defence raised deficiencies in respect of the information provided as to whether the informer has a criminal record or not, and if so, its nature.

[52] Rouleau J.A. in Crevier provided an illustrative list – neither prescriptive nor exhaustive – of what may be contained in a judicial summary. This included “whether the accused has a criminal record and, if yes, whether the unredacted [information] includes details of the convictions or charges or whether a copy of the criminal record was appended” and “whether the informer has convictions for offences of dishonesty or against the administration of justice”: Crevier, at para. 84.

[53] Justice Rouleau does go on to state that he does “not suggest that the failure to include one or more of these points will necessarily make the summary inadequate.”

[54] While it would have been preferable to include more information in this regard, the Crown takes the position that confirming or denying the existence of a criminal record would tend to unduly narrow the pool and thereby tend to identify the informant.

[55] As such, the judicial summary expressly excludes information as to whether the accused has a criminal record or not but indicates that this is addressed therein. Exhibit 1 does indicate that the informer has never been convicted of perjury or obstruct justice. As pointed out by defence counsel, it does not indicate whether the informant has a criminal record for other crimes of dishonesty, to enable it to make argument regarding the CI’s credibility.

[56] As highlighted in Crevier, however, the accused can do such things as “highlight areas of omission …, 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”: Crevier, at para. 77 [emphasis added].

[57] The defence here can therefore argue in the alternative – in particular, if the informer has a record, the impact of such a record on their ultimate reliability. Similarly, it may argue that if the informer has convictions related to other crimes of dishonesty or against the administration of justice, that this may factor in the ultimate analysis.

[58] I therefore deem the summary to be sufficient to enable the accused to address the topic.

[59] Thirdly, the defence deemed insufficient the details upon which the CI’s credibility has been assessed, as it relates to previous information provided by the CI.

[60] Following a further revision made in response to submissions from counsel, the judicial summary now states that the following has been redacted: “Between 5 and 10 occasions where the source has provided information to police in their capacity as a source and proven reliable by giving information that has led to seizures and arrests within 6 months of this case”.

[61] This addresses a central aspect of the defence’s complaint. The defence also contended that there is no information as to how reliable the information provided was. The summary does not provide “any information as to whether there are details – whether the arresting officer received details – about what is considered to be corroboration.”

[62] However, providing the details would tend to identify the informant and is not required under this procedure. The nature of the details omitted have been provided, in my view in a relatively substantial manner.

[63] The defence questioned whether the arresting officer, officer Gill, had this information when he decided to arrest the accused. The fact that this information is included in Exhibit 1 suggests that he did. In any event, this can be asked of the officer on the Charter application itself.

[64] I appreciate that the defence may not be able to test the level of reliability of the information provided by the CI in these other cases. However, they may argue that the court should be alive to these details and the strength of the corroboration put forward.

[65] Fourth, the defence contends that the mention in paragraph 8(c) that the CI provided “personal identifying information” to the police, which was corroborated by the police to the extent that this was information known to the handler, is wholly insufficient.

[66] After submitting that the previous summary, which referred to “personal information” was “so vague as to be completely without meaning” and that it should provide some indication of what the information is about, such as family relationships or associates, the summary was revised to refer to personal identifying information.

[67] While this remains somewhat vague, the defence can understand from the judicial summary that the CI provided some identifying information about Juicy Black, and that that information was known to the police such that it was deemed to be corroborated.

[68] Certainly, there is personal identifying information that is more or less broadly available and easily verifiable.

[69] Confirmation of innocuous, general information is only of limited value. Information that could be easily gathered by anyone familiar with the target of the investigation provides no confirmation that the target has been engaged in the criminal activities alleged: see Debot, at pp. 218-219; R. v. Zammit (1993), 13 O.R. (3d) 76 (C.A.), at p. 117.

[70] The defence here will be in a position to argue the matter based on the possible type of information that might constitute personal identifying information, and about how compelling or not it is based on how widely known or not such information might be.

[71] Providing more information about the type of personal information that this relates to would ultimately reveal the details. And as stated in Crevier, what is to be provided to the accused is a “description of the general nature” of the redacted information – not the details themselves: paras. 76 and 72.

[72] Fifth, the accused contends that the information in paras. 8(b), (e) and (g) of Exhibit 4 regarding the accused’s modus operandi is too lacking to enable him to respond by refuting the information.

[73] For instance, in reference to paragraph 8(g), which has the CI advising that Juicy Black does not leave his drugs anywhere, the defence argues that without more details such as where the accused is said to store the drugs, or gets them from, the statements that the tip contains information about his modus operandi is lacking because the defence cannot challenge the information, in particular by relying on available surveillance footage.

[74] In my view, the nature of the information in relation to paragraph 8(g) has been disclosed in sufficient fashion to enable the defence to challenge it in argument or by evidence.

[75] Exhibit 1 at paragraph 8(f) states that Juicy Black “will have all of his drugs in his back pack”. Paragraph (g) then states that he does not leave his drugs anywhere. The tip also indicates the three addresses that he is known to the informer to frequent and how he travels between each.

[76] In my view, providing further details regarding the modus operandi relating to specific drugs and the description provided of such drugs would tend to expose the informer and is not necessary to enable the defence to respond.

[77] Defence counsel argued that if, for example, the suggestion is that the accused always carried the drugs in his backpack, the defence could look for footage of other days when he was at that building and not carrying a backpack, in order to refute the strength of the information, and argue that the police could also have looked into it.

[78] Given the information set out above regarding how the accused operates, at least in part, and the information relating to the backpack that is said to contain all of his drugs, the defence in my view is able to conduct this very exercise. Granted, if they had all the details regarding the alleged modus operandi, the defence may be in a position to refute it more fully – but the necessary balance is in my view appropriately struck.

[79] As stated in Crevier, at para. 89, “The need to strike a balance between the interest of law enforcement, informer privilege, and the accused’s right to full answer and defence will result in a challenge that is less direct than it otherwise could be.”

[80] The defence also argues that without more details regarding the nature of the modus operandi redaction made to paragraph 8(b), which relates to 389 Church St, the defence is unable to make arguments about whether the police’s observations at this address are corroborative.

[81] I note that in Crevier, at para. 110, the Court set out some of the statements made in the judicial summary that it deemed sufficient. This included, for example, “the source of the CI’s knowledge about the appellant and her criminal activity” – without in fact detailing what that source was. Or “further details of the information about the appellant provided by the CI”, again without detailing what that information was.

[82] This is akin to the summarized statement made here about Juicy Black’s modus operandi as it relates to specific drugs.

[83] The defence does appropriately argue that some further details relating to this information is important as it goes to providing the accused with a sense of the level of detail that the CI provided. This, in turn, enables an assessment of whether the informer is sufficiently compelling, credible, and corroborated.

[84] It is fair to say that the degree of detail contained in the information the informer provided to the police is a factor that ought to be contained in a judicial summary, where possible: Crevier, at para. 84.

[85] As noted by Martin J.A. in R. v. Debot (1986), 54 C.R. (3d) 120 (Ont. C.A.) (Debot (ONCA)) at p. 219, and later adopted by Wilson J. on appeal, “Highly relevant to whether information supplied by an informer constitutes reasonable grounds” are considerations involving whether “the informer’s ‘tip’ contains sufficient detail to ensure it is based on more than mere rumour or gossip” and “whether the informer discloses his or her source or means of knowledge”. Bald conclusory statements cannot support the veracity of CI information: Debot (SCC), at pp. 1168-69; R. v. Rocha, 2012 ONCA 707, at para. 26.

[86] As indicated, the judicial summary tracks the redactions in Exhibit 1. The redactions to the tip itself, found in paragraph 8 of Exhibit 1, are fairly limited in scope. The limited nature of those redactions, in conjunction with the summaries provided, provides the defence a fairly good sense of the breadth of the information conveyed or not by the source.

[87] For instance, it does inform the defence of the types of drugs that Juicy Black was said to be in possession of, but also that quantities of these same drugs were provided by the source. The exhibit also informs the defence that Juicy Black used taxis to commute between three separate addresses, and that he sells to everyone in the building. It indicates that he would have all his drugs in his backpack and does not leave his drugs anywhere.

[88] The defence can argue that I consider the level of detail provided regarding the accused’s modus operandi, and whether it accords or not with the police’s observations, or whether the information was followed up on at all.

[89] Altogether, I am satisfied that the updated judicial summary contains enough information to allow Mr. Thompson to challenge the grounds for his arrest, while at the same time protecting the identity of the confidential informer. The summary allows Mr. Thompson to know the nature of the information behind the redactions, and what went into the grounds for arrest and what did not.

[90] The above is subject to argument as to whether less weight should be afforded to any given piece of information provided by the CI, as per Crevier, at para. 88.

Released: June 18, 2024 Signed: Justice Mainville