COURT FILE AND PARTIES
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JESSICA CREVIER
Applicant
Erin Pancer, for the Crown
Nathan Gorham, for the Applicant
HEARD: March 25, 26, 27 and April 2, 3, 4, 2013
L.A. PATTILLO J.:
Introduction
1The Applicant, Jessica Crevier, is charged with five gun and three drug related offences arising from items found during a search conducted by members of the Toronto Police Services (“TPS”) on February 6, 2012 at apartment 704, 125 Lawton Blvd., in the City of Toronto (the “Apartment”).
2At the beginning of the trial on March 25, 2013, the Applicant brought an Application challenging the validity of the authorization of the search warrants (the “Application”) and sought leave to cross-examine the affiant. The Application sought an order excluding from evidence at trial all of the items seized by the TPS on their search of the Apartment pursuant to ss. 8 and 24(2) of the Charter of Rights and Freedoms (the “Charter”).
3In response, the Crown applied to have the Court consider as part of the Application, the unredacted affidavit filed in support of the authorizations in accordance with step six of the procedure set out by Sopinka J. in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 (S.C.C.) at para. 79 (the “Cross-Application”). The Crown opposed the Applicant’s application for leave to cross-examine the affiant.
4On March 27, 2013, I granted leave to the Applicant to cross-examine the affiant. On April 8, 2013, following the cross-examination and argument, I gave brief oral reasons in the interests of time allowing the Crown’s Cross-Application and dismissing the Application. I advised the parties at the time that I would provide subsequent written reasons for my decision. These are those reasons.
Background
5In order to deal with the issues raised on the Application and Cross-Application, it is necessary to set out some background leading to the authorizations and the various procedural steps which have taken place subsequent to the charges.
6On February 6, 2012, the TPS Drug Squad obtained two warrants from a Justice of the Peace pursuant to s. 11 of the Controlled Drugs and Substances Act and s. 487 of the Criminal Code authorizing them to search the Apartment for, among other things, guns, magazine, ammunition, crack cocaine and drug paraphernalia.
7The Information to Obtain (“ITO”) filed in support of the authorization contained the affidavit of Detective Constable Daniel Morgan which set out the details of the investigation concerning the Applicant and the Apartment. The affidavit contained information obtained from two confidential informants as well as Officer Morgan’s checks of various police data bases.
8The Applicant was arrested outside 125 Lawton Blvd. on the evening of February 6, 2012. Shortly thereafter, the TPS entered and searched the Apartment pursuant to the search warrants. During the search the police found a loaded .40 calibre Smith & Wesson handgun, a large quantity of cocaine, drug paraphernalia for making crack cocaine and in excess of $4,900 in cash. The Applicant was subsequently charged with the offences before the court.
9As part of its disclosure obligations, the Crown produced the ITO to the Applicant with a significant part of Officer Morgan’s affidavit redacted on the ground of informer privilege to protect the identities of the two informants.
The Redacted ITO
10The redacted affidavit in the ITO provides Officer Morgan’s background and sets out the data base checks that he did on the Applicant and some, but not all of the information obtained. As noted, it also contains information obtained from two confidential informants (“CI 1” and “CI 2”). The redacted affidavit states the in 2012 (month and day redacted), Officer Morgan received information from Constable Steve Kerr of the Gun & Gang Task Force who, in turn received information from CI 1, who is described as a “proven Confidential Source” as follows: the Applicant is known to CI 1: the Applicant is dealing drugs and keeps a loaded handgun; the Applicant is described as a white female, about 5’2” with a medium build, green eyes and blonde/red/brown hair and uses “Jen”; there are multiple references to the Applicant and an apartment at 125 Lawton Blvd. #704 in the Yonge and Davisville area of Toronto; the Applicant is in possession of a handgun and (redacted) crack cocaine in the Apartment. The affidavit also refers to subsequent information received by Officer Kerr from CI 1, again in 2012 (the month and day redacted), confirming that the Applicant is still at the Apartment.
11The redacted ITO states that CI 1 has been used by TPS in the past and has been proven to be “extremely credible”. CI 1 is in the criminal underworld and has previously provided information that has led to arrests, drug seizures and a firearm and has also provided valuable intelligence in the Toronto area.
12The redacted ITO further states that on Monday February 6, 2012, Detective Constable Mark Tan of the Gun & Gang Task Force attended at 125 Lawton Blvd. to gather information. At that time, he spoke with CI 2 who agreed to speak on the condition of anonymity. CI 2 identified a photograph of the Applicant and confirmed she lived in apartment 704; believed the Applicant was taking part in criminal activity; and advised that the Applicant used to park a Jeep at the back of the building but lately had been driving a silver van which was parked in spot #32. Officer Tan also attended at the 7th floor of the building and viewed the door to apartment 704 but could hear no noise inside.
13In paragraph 3.04 of the affidavit, which is unredacted, Officer Morgan sets out the information he learned from a search of the Toronto Police database Unified Search on February 6, 2012. He provides the Applicant’s date of birth and states the Applicant is “well known to police” and notes there were a total of 48 hits in respect of her on Unified Search. He refers to five occurrences between August 2008 and January 2012 when the Applicant was either stopped by police, arrested or investigated by police. With respect to an investigation involving the seizure of cocaine where no one was arrested, Officer Morgan states that she was “investigated in the company of “several well known drug dealers, many with a history of firearms.” He notes that she was arrested in the company of a male who was charged with robbery with a firearm and was investigated in a vehicle with a male having a history of carrying a gun. Officer Morgan notes that the Applicant was arrested several times dating back to 2004, including four drug trafficking charges. The most recent drug arrest was in 2007. Officer Morgan also did a criminal record search which indicated 13 registered convictions including four drug related convictions, two for trafficking and a 2002 conviction for robbery. In 2011 and 2012, she gave her address as 44 Hoover Crescent in Toronto. Officer Morgan could not find a connection to 125 Lawton Blvd. or the Apartment.
14On February 23, 2013, defence counsel wrote to the Crown and requested disclosure of all the source documents relied upon by Officer Morgan as part of his investigation leading up to the swearing of his affidavit. On March 15, 2013, the Crown produced the source information utilized by Officer Morgan which was the police database checks done by him. The information also contained some redactions of the names and/or addresses of persons other than the Applicant which were revealed by the searches.
15The Application Record filed by the Applicant contains the Notice of Application and the redacted ITO. No affidavit was filed by the Applicant.
16At the start of the trial, Officer Morgan advised the Crown that, apart from relying on the database checks he did for the statements he had made in his affidavit concerning the criminality of the Applicant and people found in her company, he relied on his personal knowledge in respect of four of the individuals whose names appeared with the Applicant’s in the data base checks and he also checked out the criminal record of one other individual who he was not familiar with. The Crown immediately relayed this information to counsel for the Applicant.
17On March 26, 2013, at the request of the Applicant, I ordered that the Crown produce the CIPIC records for the four individuals Officer Morgan indicated he recognised in the database checks he did on the Applicant and the FIR report and criminal record he checked and relied upon concerning the individual he was not familiar with. The Crown also produced a less redacted copy of the occurrence report of an incident involving the Applicant which was one of the database documents relied upon by Officer Morgan and which had been previously produced in a more redacted form on March 15, 2013.
18As noted in the introduction, on March 27, 2013, I granted the Applicant leave to cross-examine Officer Morgan. Given the statements in the affidavit by Officer Morgan concerning the criminality of both the Applicant and some of the individuals she was found in the company of coupled with the Crown’s recent information concerning Officer Morgan’s sources and the subsequent production in relation thereto, I considered the Applicant’s proposed cross-examination of Officer Morgan to be relevant to an assessment of his overall credibility. Accordingly, I was satisfied that cross-examination was necessary to enable the Applicant to properly challenge the authorizations: Garofoli, para 88. The cross-examination was limited to the following areas: the database checks done and relied upon by Officer Morgan for the ITO; the basis for his statements in the affidavit that the Applicant was well known to the police; and the training Officer Morgan had received in respect of drafting and investigation.
19Officer Morgan was cross-examined at length on his affidavit on March 27 and 28, 2013.
20At the conclusion of the cross-examination, counsel for the Applicant requested disclosure of the screenshot of the Unified Search conducted by Officer Morgan on the Applicant and referred to in his affidavit. The Crown undertook to produce it and did so on the evening of March 28, 2013. I advised counsel for the Applicant at the time that if he wished to re-open cross-examination of Officer Morgan in respect of the information disclosed by the screen shot, I would allow it for that limited purpose only.
21When the trial resumed on April 2, 2013, the Applicant made two further disclosure requests. The first involved disclosure of the individual database reports behind each of the 48 hits shown on the screen shot of the Unified Search done by Officer Morgan and the second sought disclosure of the first confidential informant’s criminal record and charges. For oral reasons given on April 2, 2013, I dismissed both requests. Based on the evidence and the lack thereof, I held that the first request was neither relevant nor “possibly” relevant to the Application and the second request was covered by informer privilege.
The Issues
22The issues raised by the parties in the Application and the Cross-Application are:
a. What is the procedure to be followed in respect of a Garofoli Application;
b. What is the test to be applied in respect of the Cross-Application pursuant to step six of Garofoli and has it been met in this case; and,
c. Having regard to the information that may be considered by the court on a review of the original authorizations, were the warrants properly authorized?
23I begin with a brief discussion of the legal principals involved.
The Review of Search Warrants
24A search warrant is presumptively valid court order. The onus is on the Applicant to establish, on a balance of probabilities, that there was no basis for the authorization: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.).
25It is now well settled that in order to obtain a search warrant, the police must demonstrate, upon oath, reasonable and probable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the search. Reasonable and probable grounds amounts to credibility based probability: Hunter v. Southam, 1984 33 (SCC), [1984] 2 S.C.R. 145 (S.C.C.) at p. 168. In establishing reasonable and probable grounds, the affiant may rely on information from an informant where the informant is credible, the information is compelling and there is corroboration for the informer’s tip: R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193 (S.C.C.).
26A review of the issuance of a warrant does not entitle me to substitute my own decision for that of the authorizing justice. Rather, the question for determination is whether there was sufficient credible and reliable evidence to permit the authorizing justice to find reasonable and probable grounds to believe an offence had been committed and that evidence of that offence would be found at the specified time and place: Moreilli, at para. 40.
27The review of a search warrant may take the form of either a “facial validity” challenge and/or a “sub facial validity” challenge. The former involves a consideration of the material presented to the authorizing justice without regard to the evidence called on the voir dire to determine whether the essential requirements necessary for the issuance of the search warrant have been met. See: R. v. Sanchez (1994), 93 C.C.C. (3d) 468 (Ont. Ct. Gen. Div.). By contrast, a sub facial challenge utilizes the evidence on the voir dire to attack the reliability of the material presented to the authorizing justice: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R 992; 149 C.C.C. (3d) 449 (S.C.C.) at para. 50.
28The standard of review involving a sub facial challenge was set out by Sopinka J. in Garofoli at para. 56:
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. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
29Where it is established that the ITO contained misleading information or omitted material facts, the reviewing judge must consider the sufficiency of the grounds after removing the offending text or, in the case of an omission, adding in the missing fact or facts. Erroneous information must also be excised. See: Morelli, at para 41; Araujo, at paras. 54 to 59.
30As noted, hearsay statements of an informant can provide reasonable and probable grounds to justify a search. The reliability of the information provided by the informant must be assessed by the “totality of circumstances” test which involves a number of factors including: the degree of detail of the tip; the informer’s source of knowledge; and indicia of the informer’s reliability such as past performance or confirmation from other investigative sources. No one factor is determinative. See: Garofoli, at para. 68; Debot, at para. 53.
Informer Privilege
31The rule of informer privilege operates to prevent disclosure of any information which might identify an informer. It is broad in its scope and subject only to the “innocence at stake” exception. See: R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281 (S.C.C.).
32In Leipert, at paras 26 and 27, McLaughlin J. (as she then was), discussed informer privilege in relation to challenges to search warrants:
26 Where the accused seeks to establish that a search warrant was not supported by reasonable grounds, the accused may be entitled to information which may reveal the identity of an informer notwithstanding informer privilege "in circumstances where it is absolutely essential": Scott, supra, at p. 996. "Essential" circumstances exist where the accused establishes the "innocence at stake” exception to informer privilege. Such a case might arise, for example, where there is evidence suggesting that the goods seized in execution of the warrant were planted. To establish that the informer planted the goods or had information as to how they came to be planted, the accused might properly seek disclosure of information that may incidentally reveal the identity of the informer.
27 Absent a basis for concluding that disclosure of the information that may reveal the identity of the informer is necessary to establish the innocence of the accused, the information remains privileged and cannot be produced, whether on a hearing into the reasonableness of the search or on the trial proper.
The Procedure to be Followed in Respect of Garofoli
33Although Garofoli was a review of a wiretap authorization and the supporting affidavit, it has evolved over time to govern the review of all judicially authorized searches. In Garofoli at para. 79, Sopinka J., on behalf of the Court, set out six steps to be followed in determining the validity of an authorization in circumstances where the information relied upon for the authorization is in whole or in part based upon a confidential informant or informants. They are:
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.
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.
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.
After the determination has been made in (3), the packet material should be provided to the accused.
If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.
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.
34The Applicant and the Crown both agreed that, because the ITO in this case is based primarily on the evidence of confidential informants, the procedure that should be followed on the Application was as set out by Sopinka J. at paragraph 79 of Garofoli. They did not agree, however, on which of the six steps should be the starting point.
35Since the decision in Garofoli, the practice of unsealing the package containing the search warrant material and editing the affidavit has evolved from that set out by Sopinka J. in step one and the first sentence of step two. I am advised by counsel for the Crown that the practice which has developed and which was followed in this case is that the Crown obtains an order unsealing the package well in advance of trial. The Crown then reviews the search warrant material and makes any edits/redactions it considers are required based on informer privilege and then produces the redacted ITO to the defence as part of the Crown disclosure. As a result, the material has already undergone an initial edit prior to the trial beginning.
36The Applicant took issue with the Crown’s editing of the ITO and submitted that she should be allowed to make submissions concerning the editing in accordance with the second sentence of Garofoli step two.
37It was the Crown’s position that the matter should proceed directly to step six. As noted, the Crown conceded that the