COURT FILE AND PARTIES

COURT FILE NO.: 13-90000234/0000
DATE: 20131031

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

EDDY GRANT

Defendant

Peter Campbell, for the Crown
Peter Bawden, for the Defendant

Heard: October 28, 2013

goldstein j.

REASONS FOR JUDGMENT

[1]

Introduction

This is another case where the Court is asked to apply the so-called Step-6 of the Garofoli process.

2The police seized drugs and cash from Mr. Grant’s home pursuant to a Controlled Drugs and Substances Act search warrant. Mr. Bawden, Mr. Grant’s counsel, says that the police violated Mr. Gant’s rights under s. 8 of the Charter. Mr. Bawden says that the information to obtain the warrant did not disclose reasonable grounds to believe that Mr. Grant was in possession of illegal drugs, or that evidence would be found in his home. He applies to the Court on behalf of Mr. Grant to exclude the drugs from evidence.

3Crown and defence Counsel, who together presented the case with great efficiency, agree that I should apply Step 6. Crown counsel, Mr. Campbell, supplied me with an un-redacted version of the Information to Obtain and a draft judicial summary. The draft judicial summary was disclosed to Mr. Bawden.

4In my view, there is sufficient material in the un-redacted portion of the ITO to support the issuance of the warrant. I am also of the view that the draft judicial summary sufficiently informs the accused of the contents of the un-redacted portion for the purposes of making full answer and defence. There was no violation of s. 8 of the Charter. The Application is dismissed.

FACTS

[5]

Facts

Detective Constable Wallace of the Toronto Police swore an Information to Obtain a CDSA Search Warrant on August 10, 2011. The informant told police that Mr. Grant lived and worked in the area of The Esplanade in Toronto, and distributed drugs in the downtown core. The informant provided a “detailed description” of Mr. Grant, including his address, age, and description.

6The ITO contains a page of detailed information supplied by the informant. The Crown redacted much of the information when the ITO was disclosed to the defence. The redacted version was filed in the application records of both parties.

7The redacted ITO indicates that the informant provided the following information:

• Members of Toronto Police received information from the informant regarding a male trafficking large amounts of a controlled substance (the type of substance is redacted) from 117 Scadding Avenue, Unit 117, in the area of The Esplanade, Toronto;

• The informant uses Eddy Grant has his main (redacted);

• Eddy Grant always provides (redacted);

• According to the informant, Eddy Grant always provides (redacted);

• The informant purchased (redacted);

• Eddy Grant sells (redacted);

• The informant once again purchased (redacted).

8Appendix “D” of the ITO set out information regarding the informant. It was heavily redacted but stated the following:

• The informant has no convictions for obstruct peace officer, obstruct justice, or perjury;

• The informant is “providing information that has been corroborated by the Police investigation to weigh the accuracy of the events related.”

9A will-state for D.C. Wallace was later disclosed to the defence. It provided some further information about the informant. The salient information disclosed that:

• The informant has no convictions for crimes of dishonesty;

• The informant was advised that consideration would only be given based on the accuracy of the information;

• The informant is a carded informant with the Toronto Police and has proven reliable in the past; and,

• The informant provided information to the Toronto Police handler (not D.C. Wallace) who followed police protocol.

10According to the ITO, on August 9 and August 10, 2011, D.C. Hoeller made observations of 117 Scadding Avenue. He observed a male matching the description of Mr. Grant exiting 117 Scadding Avenue. He tried to conduct further observations but was approached by young men who demanded to know what the police were doing in the area. D.C. Hoeller learned from the property manager at 117 Scadding Avenue that Unit 117 was registered to Debra Grant and Eddy Grant. According to the ITO, the property manager told D.C. Hoeller that “property management constantly receives community complaints regarding Unit 117 and excessive drug usage”.

11D.C. Wallace also conducted database searches. He set out the results in the ITO. He confirmed that Mr. Grant lived at 117 Scadding and generally matched the description given by the informant. D.C. Wallace also indicated that Toronto Police arrested Mr. Grant in 2002 for possession of crack cocaine and possession of a weapon. D.C. Wallace further indicated that in 2008 Mr. Grant was arrested following a search warrant at 117 Scadding. D.C. Wallace did not indicate what Mr. Grant was arrested for on that occasion. D.C. Wallace did not set out the result of the arrests, or even whether charges were laid. At the preliminary inquiry he stated that he only referenced the charges in order to demonstrate Mr. Grant’s address. Pursuant to an Agreed Statement of Facts filed at the trial before me, none of the arrests resulted in criminal convictions.

12The warrant was executed on August 10, 2011. The police seized crack cocaine, powder cocaine, ecstasy pills, powdered ecstasy, marijuana, and cash.

13D.C. Wallace and D.C. Hoeller testified at the preliminary inquiry. Committal was not an issue. Justice Cavion granted a “Dawson” application, permitting D.C. Wallace to be cross-examined on the ITO: R. v. Dawson, 1997 12348 (ON SC), [1997] O.J. No. 2188, 44 C.R.R. (2d) 359 (Gen.Div.).

14Some of the key points of D.C. Wallace’s testimony included:

• D.C. Wallace was seconded to the street crime unit as a six-month training opportunity. The ITO was not his first, but his appearance at the preliminary inquiry was the first time he had testified as an affiant. He had received no formal training in writing ITO’s, other than on-the-job training from other members of the street crime unit.

• D.C. Wallace did not mean to include crimes such as fail to comply or fail to appear as crimes of dishonesty. His definition of a crime of dishonesty included offences like perjury, obstruction of justice, or fraud.

• D.C. Wallace was aware that there are Toronto Police protocols regarding informant handling. He did not check to make sure that the informant handler followed the protocols. He relied on his fellow police officers.

• D.C. Wallace was not the handler of the particular informant in this case. The Intelligence Bureau is responsible for maintaining centralized records for carded informants. He did not contact the Intelligence Bureau to obtain information about the informant. He relied on the informant handler.

• In his notes, D.C. Wallace wrote “consistent complaints re: unit and drug usage”.

15D.C. Hoeller, the sub-affiant, also testified at the preliminary inquiry:

• He did not observe much traffic going in and out of 117 Scadding Avenue, Unit 117.

• The property manager indicated that her staff had received complaints of marijuana smoking in Unit 117. His precise note stated: “Further that their office received several complaints regarding 117 for marijuana smoking”.

16Prior to the trial, the Crown provided a draft judicial summary of the redacted portions of the ITO. The judicial summary provided the following further information:

• The informant provided information to the handler(s) recently.

• The informant set out Mr. Grant’s modus operandi of trafficking and personal circumstances.

• The date that the information was received by the informant handlers.

• The length of time that the informant has known Mr. Grant, the location(s) where the informant has purchased controlled substance(s) from Mr. Grant, and the quantum and frequency (if any) of purchases of controlled substance(s).

• A description of the packaging material (of lack thereof) of the controlled substances.

• The location and a modus operandi that suggests controlled substance(s) will be found at the place to be searched.

• The informant is an unsavoury person familiar with the drug subculture.

• The informant has provided reliable information in the past.

• The type of consideration that the informant expects to receive.

I examined an un-redacted version of the ITO. I am satisfied that the draft judicial summary contains no inaccuracies.

ANALYSIS:

[17]

Analysis

The trial before me proceeded on the basis of the filed material and submissions. No viva voce evidence was heard.

18There are four issues to be determined on this application:

(a) Does the redacted ITO disclose reasonable and probable grounds?

(b) Does the excised material provide enough evidence to support the warrant?

(c) Is the judicial summary sufficient to permit the defence to challenge the affidavit?

(d) What is the effect of the misleading material in the ITO?

(e) Should the evidence be excluded pursuant to s. 24(2) of the Charter?

(a) Does the redacted ITO disclose reasonable and probable grounds?

[19]

Does the redacted ITO disclose reasonable and probable grounds?

The redacted ITO is totally inadequate to support the issuance of a warrant.

20The preconditions for the issuance of a search warrant under the CDSA require the police to show that there are reasonable grounds to believe that there is a controlled substance or precursor, anything in which a controlled substance or precursor is contained or concealed, offence related property, or anything that will afford evidence of an offence under the CDSA, is in a place: CDSA, s. 11(1). See also: Criminal Code s. 487(1); Director of Investigation and Research v. Southam, 1984 33 (SCC), [1984] 2 S.C.R. 145.

21Realistically, the evidence in the redacted ITO can be boiled down to this conclusory statement: Eddy Grant deals drugs from his residence at 117 Scadding Avenue.

22There is no indication in the redacted ITO that any controlled substance, precursor, or evidence of an offence will be found in the location to be searched. In the absence of a judicial summary it is not even necessary to analyze the informant’s tip to determine if it meets the criteria of being compelling, credible, and corroborated: R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140.

23It is not my duty to determine whether the issuing justice should have issued the warrant. It is my duty to determine whether the issuing justice could have issued the warrant: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 at paras. 55-56. No issuing justice could possibly have issued the warrant based on the redacted ITO. In the absence of a Step 6 process, this application would swiftly result in a finding that Mr. Grant’s rights under s. 8 of the Charter were violated. No s. 24(2) analysis could possibly save the warrant. That, however, is not the end of the matter.

(b) Does excised material provide enough evidence to support the warrant?

[24]

Does the excised material provide enough evidence to support the warrant?

Sopinka J. in Garofoli summarized the principles for dealing with informant material in a wiretap affidavit (or, by extension, an ITO) at para. 68:

(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.

(ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:

(a) the degree of detail of the "tip";

(b) the informer's source of knowledge;

(c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources.

(iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information.

25What happens where the police set out compelling information from an informant in an ITO but the Crown cannot subsequently use that information to justify the issuance of the warrant without compromising the identity of the informant? Sopinka J. identified the tension between the competing interests of law enforcement and the right of the accused to make full answer and defence: Garofoli, para. 72.

26Code J. admirably summarized the dilemma in R. v. Learning, 2010 ONSC 3816, [2010] O.J. No. 3092, 258 C.C.C. (3d) 68 (Sup.Ct.). His solution was to resort to Step 6, a process blessed by the Supreme Court of Canada 23 years earlier in Garofoli, but rarely invoked since:

107It is unfortunate that "step six" in Garofoli is the only legal mechanism available, to resolve the conflict between the competing demands of Debot and Leipert, and yet it is simply not being tried or tested. The result is that we encourage officers like D.C. Connor to carefully prepare detailed and thorough grounds to arrest and search, that will meet the Debot criteria, and then we reward him with a declaration that he violated s. 9 of the Charter because Leipert prevents the court from relying on those grounds. This does not seem right.

27Code J.’s approach was endorsed by the Ontario Court of Appeal in R. v. Rocha (2012), 112 (3d) 742 (C.A.).

28Sopinka J. set out the Step 6 process in Garofoli at para. 79:

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.

29It is clear that Step 6 has two purposes: first, to determine whether the redacted material can support the authorization; and second, to make the accused sufficiently aware of the nature of the redacted material so that it can be challenged by evidence or argument.

30Thus, my first task is determine whether the excised material can support the warrant: R. v. Sahid, 2011 ONSC 979, 2011 CarswellOnt 2011, 230 C.R.R. (2d) 239 (Sup.Ct.); R. v Browne, 2013 ONSC 5874, [2013] O.J. No. 4414 (Sup.Ct.); R. v. Brown, 2011 ONSC 6223, [2011] O.J. No. 4624 (Sup.Ct.)

31As is well known, three questions must be asked when reviewing an ITO based on an informant’s tip: first, was the informant’s information compelling? Second, was the informant credible? Third, did the police corroborate the information provided by the informant? The three questions do not each posit a separate test. A judge must examine the totality of the circumstances. Weakness in one area may be compensated by strengths in another: Debot, at para. 53.

32In this case, I am satisfied that the informant’s information was compelling. The informant was able to provide detailed information regarding purchases of a controlled substance from Mr. Grant, and Mr. Grant’s method, price, quantum, and packaging for the sale of a controlled substance. The informant also provided information to suggest that Mr. Grant operates from his home. It was open to the issuing justice to find that a controlled substance would be found in Mr. Grant’s home.

33I am also satisfied that the informant was credible. As an unsavoury person, the informant’s credibility is obviously subject to question. It is not unusual that informants are unsavoury. The reason that they are in possession of information about a drug dealer is that they are familiar with drug dealers, usually because they deal or use drugs (or both) themselves. I am satisfied that D.C. Wallace made full disclosure of the unsavoury aspects of this informant, particularly the fact that the informant was not a good Samaritan but rather a person seeking consideration in exchange for providing information. The excised material set out information regarding the informant’s past performance in providing information to the police. There was information upon which the issuing justice could evaluate the credibility of the informant and the information provided.

34Finally, I am satisfied that it was open to the issuing justice to find that the informant’s information was corroborated to the extent possible by the police investigation. The affiant, D.C. Wallace, conducted police database checks and confirmed that Mr. Grant lived at the address provided by the informant. D.C. Hoeller conducted observations on the address and observed a male matching Mr. Grant’s description. D.C. Hoeller also confirmed with the property management office that the unit described by the informant was rented to Debra and Eddy Grant. D.C. Hoeller also confirmed that there had been complaints about drug use in the unit (although the material on that point in the ITO was slightly misleading, of which more below).

35The ITO does not disclose any checks on the informant beyond receiving information from the informant handlers, in either the redacted or un-redacted portions. In cross-examination at the preliminary inquiry, D.C. Wallace confirmed that he did not check with the Intelligence Bureau in order to see that the informant handlers had followed police protocols or whether there was other information about the informant. He relied on other police officers. Mr. Bawden argues that D.C. Wallace was under a duty to ensure that the informant’s handlers had followed proper police protocols and to set out the results of his inquiries in the ITO.

36Notwithstanding Mr. Bawden’s able submissions, I respectfully disagree. Police officers are entitled to rely on information provided by their fellow officers. It seems to me that it would be a duplication of effort and a waste of resources to require that police officers independently confirm information that they receive from other police officers. The law does not require it: R. v. Regan, [2005] O.J. No. 2355 (Sup.Ct.); R. v. Carlse-Brown, [2013] O.J. No. 2899 (Sup.Ct.).

(c) Is the judicial summary sufficient to permit the defence to challenge the affidavit?

[37]

Is the judicial summary sufficient to permit the defence to challenge the affidavit?

Mr. Bawden argues that the judicial summary does not meet the requirements of Step 6. He says that it does not permit him to challenge the affidavit. He contends that the summary merely alerts the defence to the nature of the redactions. He says that there is no meaningful way to mount a challenge. For example, he says that he is unable to determine whether there was a meaningful avenue of investigation that the police might have taken (but did not) which would corroborate or undermine the informant’s information.

38The obvious challenge at all stages of the disclosure process is to disclose enough to facilitate making full answer and defence without revealing the identity of the informant. It would have been open to me, as it would to any judge on Step 6 of a Garofoli application, to write my own judicial summary and provide it to the parties. I was reluctant to do that in the absence of a draft judicial summary provided by Crown counsel. There are obviously cases where a judge may perform the editing function him or herself, as Code J. did in Learning. In the particular circumstances of this case, where Crown counsel provided a draft judicial summary (that was disclosed to counsel for the defence), the process was appropriate.

39Again, despite Mr. Bawden’s able submissions, I respectfully disagree. The draft judicial summary does provide enough information to challenge the affidavit. It must be recalled that a defence attack can only be successful if it can undermine the preconditions for the issuance of the authorization. If, for example, the draft judicial summary gave no indication that there was evidence of the existence of a controlled substance in a particular place that would clearly be a basis upon which a defence attack could be mounted.

40The content of the right to make full answer and defence is not static, but means different things in different contexts. In this case, the content of full answer and defence consists of the right to know the basis upon which the search warrant was granted. The draft judicial summary satisfies that right. The draft judicial summary provides information that the defence can use to evaluate whether or not the preconditions were met. Indeed, Mr. Bawden did mount an effective, albeit unsuccessful challenge.

41In the event that I am correct that the excised material was sufficient to support the warrant, but incorrect that the judicial summary of the excised material was not sufficient to permit the defence to mount a challenge, the next step is unclear. Garofoli, Learning, and Rocha do not answer this question. This issue is an example of what Jurianz J.A. called “practical questions about the procedure to be followed in applying step 6 of Garofoli and about the content of the judicial summary”: Rocha, para. 58. In Sahid, Low J. referred to this area as “uncharted territory”.

42In my respectful view, the answer to that dilemma lies in the application of first principles. The protection of informant privilege is a value of superordinate importance. The right to make full answer and defence does not extend so far as to provide information that may compromise the identity of the informant: R. v. Liepert, [1987] 1 S.C.R. 281. The only basis upon which the identity of the informant may be revealed is where the accused’s innocence is at stake. Furthermore, the right to make full answer and defence on a Charter motion where the evidence sought to be excluded has been seized pursuant to a judicial authorization is more attenuated than at a trial on the merits: Learning, at para. 106. This is not to discount the importance of Charter rights. There may well be a point where the judicial summary so completely attenuates the right to make full answer and defence that the balance shifts against the Crown, which must then decide whether or not to tender the seized evidence: Garofoli, para. 79. That said, the right to make full answer and defence is not unlimited but must be balanced against other values of equal or greater importance in our system of justice. At the end of the day, it may simply be that the right of the accused on this type of application does not extend further than the right to know the basis upon which the warrant was granted.

(d) What is the effect of the misleading material in the ITO?

[43]

What is the effect of the misleading material in the ITO?

There are two materially misleading statements in the ITO:

• The ITO referenced two instances where Mr. Grant had been arrested. One of those arrests was for illegal drugs and a prohibited weapon. D.C. Wallace did not check to see whether the arrests had resulted in convictions or even charges. In fact, Mr. Grant was not convicted of any criminal offences arising out of those arrests. The statements in the ITO were capable of giving a misleading impression regarding Mr. Grant’s alleged previous criminal activities.

• The ITO indicated that the property management of 117 Scadding “constantly receives community complaints regarding unit 117 and excessive drug usage.” In fact, the note taken by Cst. Hoeller states that “further that their office received several complaints regarding 117 for marijuana smoking.” There are obvious differences between what the property management communicated and what the ITO disclosed to the issuing justice. The ITO is capable of giving a misleading impression of the nature and extent of the drug usage at unit 117.

44Mr. Bawden was able to deal with these issues by means of disclosure and by cross-examination of the affiant, which goes some way towards alleviating the dilemma of the draft judicial summary. Nonetheless, his argument that the ITO is misleading has merit. Mr. Bawden did not suggest that the misleading statements by D.C. Wallace were the result of dishonesty or laziness. Rather, he characterized D.C. Wallace as an officer who was trying to do his best but inadequately trained. He faulted the training of the Toronto Police, rather than the officer himself. I agree. There were failures but I agree with Mr. Bawden that they were institutional, rather than personal failures. It is clear that better training – and it must be remembered that D.C. Wallace was working with the street crime unit for training purposes – might have obviated these errors. Be that as it may, it is the effect of the misleading statements that must be evaluated. The good faith or otherwise of the officer is not relevant to this portion of the analysis.

45Misleading statements, or even fraud, do not automatically vitiate an ITO or wiretap affidavit. Misleading statements are relevant, obviously, but the reviewing judge must determine whether there continues to be any basis upon which the authorization or warrant could have been granted: Garofoli, para. 56; R. v. Bisson, 1994 46 (SCC), [1994] 3 S.C.R. 1097. The reviewing judge, after excising the misleading information, then determines whether there is enough material left in the affidavit to support the warrant: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992.

46In this case, I am satisfied that after excising the misleading information that there continues to be a basis for the authorization. It still would have been open to the justice to issue the warrant.

47It would have been open to me to correct D.C. Wallace’s error regarding the drug usage if I had found that it was an error made in good faith through the amplification process: Araujo, para. 58. The Crown did not request that the Court embark on that process. I have not been asked to use D.C. Wallace’s will-state for that purpose. In any event, I am satisfied that amplification is not necessary.

(d) Should the evidence be excluded pursuant to s. 24(2) of the Charter?

[48]

Should the evidence be excluded pursuant to s. 24(2) of the Charter?

Since I am satisfied that there was no violation of s. 8 of the Charter, it is not necessary for me to embark on an analysis of s. 24(2). In case I am wrong, however, I will do so briefly.

49In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 the Supreme Court of Canada re-formulated the s. 24(2) analysis. The focus of the analysis is the maintenance of the reputation of the administration of justice. The Court specifically said:

68 The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

50The Court in Grant set out the factors that must be taken into account:

1. The seriousness of the Charter-infringing state conduct;

2. The impact of the breach on the Charter-protected interests of the accused;

3. Society's interest in the adjudication on its merits.

51The Charter-infringing state conduct, if there was any, cannot be characterized as serious. The police did not conduct a warrantless search. Other than the misleading statements that I have mentioned, which, it seems, were training failures rather than deliberate, there is no suggestion that the police failed to make full, fair, and frank disclosure to the issuing justice. I appreciate that Mr. Bawden is somewhat hamstrung in that regard, but he did have the opportunity to cross-examine the affiant and he did so effectively, obtaining damaging admissions. If the ITO did not disclose reasonable and probable grounds, it certainly came very close. It is also relevant that there was no bad faith on the part of the police officers.

52The impact on Mr. Grant’s Charter-protected interests was very severe. The police conducted a search of his home, the most intrusive type of search imaginable. A person’s dwelling house is entitled to a very high degree of protection.

53Society has a strong interest in adjudication on the merits. The evidence is real evidence. A very significant amount of drugs was seized. It is not a situation where a statement was taken in violation of the Charter and the accused is being conscripted against himself.

54In my opinion, the significant impact on Mr. Grant’s Charter-protected interest in the sanctity of his home is outweighed by the less serious nature of the state conduct, and the strong societal interest in a trial on the merits. The s. 24(2) analysis, if required, would result in the admission of the evidence.

DISPOSITION

[55]

Disposition

The application is dismissed.

Goldstein J.

Released: October 31, 2013