ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-90000234/0000

DATE: 20131127

BETWEEN:

HER MAJESTY THE QUEEN

– and –

EDDY GRANT

Defendant

Peter Campbell, for the Crown
Peter Bawden, for Eddy Grant

HEARD: November 6, 2013

goldstein j.

SUPPLEMENTARY REASONS FOR JUDGMENT

Background

1On October 30, 2013 I dismissed an application on behalf of Mr. Grant to exclude evidence pursuant to sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms: R. v. Grant, 2013 ONSC 6792. The evidence consisted of cash and drugs. The evidence was seized from Mr. Grant’s home pursuant to a search warrant obtained by the Toronto Police Service.

2The information to obtain the warrant was heavily dependent upon information supplied by a confidential informant. A significant amount of that information was edited from the ITO prior to disclosure. Crown counsel, Mr. Campbell, supplied a draft judicial summary of the edited information to Mr. Bawden. Counsel agreed that I was to apply Step 6 of the Garofoli process: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 at para. 68.

3In my ruling I found that there was sufficient material placed before the issuing justice such that the warrant could have been issued. I also found that the draft judicial summary was sufficient for Mr. Bawden to make full answer and defence on behalf of Mr. Grant.

4After my ruling, Mr. Bawden asked me to issue a subpoena to the TPS to obtain the informant file. His position was that since he could not view the material in the file, it was incumbent on me, as the trial judge, to do so in order to ensure that the police had complied with their own informant procedures and to be sure that there continues to be a basis upon which the issuing justice could have issued the warrant. It is also, he argues, incumbent on me to ensure that the police had not misled the issuing justice about the reliability, or otherwise, of the informant.

5Mr. Bawden did not make this suggestion in his original argument and he was quick to say that he did not quibble with the Court’s ruling. His position was that since the procedures for dealing with Step 6 of the Garofoli process are evolving, this is a natural step in that evolution. I agree with Mr. Bawden that the process is evolving, which is why I agreed to let him make the argument after I had issued my ruling. I certainly do not fault him for bringing the application in this manner.

6I heard the supplementary application for a subpoena on November 6, 2013. Mr. Bawden’s position is that Step 6 of Garofoli represents a fundamental shift in the law of search and seizure towards a quasi-inquisitorial approach. Mr. Bawden suggests that because an accused person otherwise has no ability to test the information, it is the Court’s responsibility to do so.

7I respectfully disagree with Mr. Bawden. Step 6 of the Garofoli process is not a revolution that substantially alters the adversarial system. Step 6 conforms to the classic response of the common law to the tension between competing rights and values. I find that in the absence of a basis upon which a court could order disclosure, I would simply be subjecting the police to a form of random virtue testing. That is not the Court’s role. The Court’s role remains to try cases based on evidence and submissions brought forward by the parties. The application is therefore dismissed for the reasons set out below.

Analysis

8Boiled to its essence, Mr. Bawden says that previous cases dealing with this issue are not binding because Step 6 of the Garofoli process was not engaged. He very specifically disavows any intention of seeking disclosure of anything that might tend to identify the informant. In fact, he says he does not want to see anything at all in the informant file. He asks, instead, that the Court review the file to determine whether the sub-affiants provided the affiant with correct information about the informant. He argues that Step 6 of the Garofoli process represents a revolution in the law of search and seizure. The role of the trial judge, he argues, has fundamentally changed from neutral arbiter to inquisitor because there is no other way to ensure fairness to the accused since the right to make full answer and defence is so attenuated.

9I have not considered the minimal pre-requisite for the issuance of a subpoena, because it does not engage the real issues. The real issues would undoubtedly be litigated on a more substantive basis upon the return of the subpoena. Those issues are:

(1) Is there a basis upon which a judge should decide to review an informant file?

(2) Should a trial judge take on an inquisitorial role and examine the material in the informant file?

1. Is there a basis upon which a judge should decide to review an informant file?

10The threshold question raises the equivalent of a disclosure issue. In my view, unless the defence can demonstrate that the material could be useful to the defence, a judge should go no further. A judge should not conduct an in camera review of the material sought.

11Wein J.’s decision in R. v. D.D.F., [2006] O.J. No. 358 (Sup.Ct.) is of great assistance in deciding this threshold question. In that case, defence counsel argued that the court should review confidential material relating to the reliability of the informant in order to determine what use defence might be able to make of it. Wein J. succinctly rejected that view:

34 With respect to the separate argument that there is a potential use of the information on any of the Charter applications to be brought, the defence speculates that the information might affect the assessment of credibility of Constable Barnett. For example, he might be shown to be lying about the informant's giving of information in other cases. This is pure speculation that cannot properly form a basis for overriding the privilege. See R. v. Chiarantano, [1990] O.J. No. 2603 (C.A.) at para. 20, aff'd 1991 101 (SCC), [1991] 1 S.C.R. 906, where it was stated that "informer privilege is subject only to one exception, known as the innocence at stake exception". Chiarantano was referred to with approval in Liepert, where the court noted (at paragraph 21) that "if speculation sufficed to remove the privilege, little if anything would be left of the protection which the privilege purports to accord".

12In R. v. Ahmed 2012 ONSC 4893 the defence sought the underlying notes of informant handlers in a large and complex wiretap investigation. MacDonnell J. summarized the reason for the defence request as follows:

14…. the Applicants “wanted to confirm that the affidavit accurately, authentically, and reliably summarizes the information allegedly obtained from the CS’s [confidential sources].” With disclosure of the notes, the Applicants “will be able to ensure that information allegedly provided by the 28 CS’s is accurately reflected in the affidavit”…

13In a very thorough and detailed analysis, MacDonnell J. dismissed the application. He noted that the right to disclosure is a component of the right to make full answer and defence. The right to make full answer and defence certainly does apply at a Garofoli hearing, but it may not have the same content and meaning as the right to full answer and defence at a trial on the merits:

29To say that the right to disclosure applies to a Garofoli hearing is not to say that the content of the right and the circumstances under which it will be triggered will be the same as at trial. The right to disclosure is a component of the broader constitutional right to make full answer and defence. The right to cross-examine witnesses is also a component of that broader right. What was in issue in Pires was whether the Garofoli leave requirement unjustifiably limited the right to make full answer and defence. In holding that it did not, Justice Charron explained that the content of the right to full answer and defence will depend on the context in which it is invoked…

14MacDonnell J. found that the approach to disclosure should mirror the approach to the right to cross-examine an affiant: the defence must show some basis for believing that there is a reasonable possibility that the disclosure will be of assistance on the application. In dismissing the application, MacDonnell J. relied on the following comment from the British Columbia Court of Appeal’s decision in R. v. Barzal, 1993 867 (BC CA), [1993] B.C.J. No. 1812, 33 B.C.A.C. 161, 84 C.C.C. (3d) 289 (C.A.):

44 In this case the accused wanted access to the debriefing notes in order to test the reliability of the informers. A detailed inquiry into police files is not required for that purpose. Sufficient reliability is established, or is not established, by reference to the material filed in support of an application for an authorization. The right to make full answer and defence in this context is a right to the disclosure of material which had been before the authorizing judge. It is not a right to embark on a fishing expedition of all the material in the possession of the police. Such an enquiry could be endless, including access to police files, cross examination of police officers, cross examination of informants (which is not permitted; Garofoli at p. 1465), and consideration of the details of each case in which the informer had been involved.

15The defence could show no basis for the disclosure request, other than a desire to check what the police files contained. MacDonnell J. therefore dismissed the application. Trotter J. came to the same result in R. v. Ali, 2013 ONSC 2629, [2013] O.J. No. 2074 (Sup.Ct.), where he adopted the analysis and result reached by MacDonnnell J. in Ahmed.

16In my respectful view, therefore, the Court should require that the accused demonstrate a reasonable possibility that the material will be useful. The accused has not been able to do so in this case. A disclosure request without a reasonable possibility that the material will be of use on the Garofoli application is simply a fishing expedition. A request to have the judge review the material sought without a reasonable possibility that the material will be of use is also a fishing expedition. The only difference is the identity of the fisherman.

2. Should a trial judge take on an inquisitorial role and examine the material in the informant file?

17What of the argument that Step 6 makes it incumbent on a trial judge to review the informant file? In my respectful view, the argument misconstrues the nature and purpose of the Garofoli review, which is to determine whether there was a basis upon which the authorizing justice could have issued the search warrant. It is not, as I have stated, a form of random virtue testing of the police by the judiciary.

18I am sympathetic to Mr. Bawden’s point that defence counsel have a difficult job of making full answer and defence during the Step 6 process. Nonetheless, as I indicated in my original ruling the process accommodates the right of full answer and defence to the extent compatible with informant privilege. I cannot accept that the role of the judge has fundamentally changed. Step 6 of Garofoli was not a revolution in the law of search and seizure. Garofoli simply consolidated all of the various procedures that had arisen in response to two developments: the Canadian Charter of Rights and Freedoms, and the introduction of the wiretap provisions in Part VI of the Criminal Code. I do not see how Garofoli changes the basic role of the judge and the parties.

19Step 6 seemed like a new procedure at the time of Garofoli, and lately has been used more frequently. In fact, Step 6 is about dealing with competing rights and values. Dealing with competing rights and values is one of the classic functions of a judge under our adversarial system. Step 6 seeks to balance the right of the accused to make full answer and defence against the super-ordinate value of informant privilege. That balance had often come down on the side of the exclusion of evidence in cases where there was an ample basis upon which a justice could have issued a search warrant. Code J. summarized the problem in R. v. Learning, 2010 ONSC 3816, [2010] O.J. No. 3092, 258 C.C.C. (3d) 68 (Sup.Ct.):

103 In cases like the one at bar, where the police have reasonable and probable grounds to arrest or search, based substantially on an informer’s tip, and where they are compelled to act quickly in the public interest, there must be a rational solution to the conflict that arises between the demands of Debot and the dictates of Liepert.

20See: R. v. Liepert 1997 367 (SCC), [1997], 1 S.C.R. 281, 143 D.L.R. (4th) 38, 112 C.C.C. (3d) 385; R. v. Debot 1989 13 (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193.

21Code J.’s solution was to breathe new life into Step 6. See: R. v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991, 112 O.R. (3d) 742, 292 C.C.C. (3d) 325 (C.A.); R. v. Sahid, 2011 ONSC 979, [2011] O.J. No. 653, 230 C.R.R. (2d) 239 (Sup.Ct.).

22The potential pitfalls of the inquisitorial approach are illustrated by R. v. Omar, 2007 ONCA 117, [2007] O.J. No. 541, 84 O.R. (3d) 493, 218 C.C.C. (3d) 242 (C.A.). In that case a “carded” informant provided detailed information to the police regarding possession of a gun. Based on the tip, the accused was arrested. Prior to trial the accused requested disclosure of the confidential informant file maintained by the police. The Crown took a somewhat confusing position at trial, and a heavily edited version of the file was disclosed to the defence. (On appeal, the Crown essentially admitted that an error had been made by the trial Crown and that the informant file should not have been disclosed.) The defence sought further documents from the file. The trial judge directed that the Crown produce the documents. She then edited the documents and provided them to the Crown for further comment before she produced them to the defence. The Crown objected and invoked s. 37 of the Canada Evidence Act (which permits a minister of the Crown to object to disclosure on a specified ground of public interest). The Crown also called expert evidence to show that there was a real prospect that the edited documents would identify the informant and actually jeopardize his or her personal safety. The trial judge dismissed the s. 37 application. The Crown appealed. Sharpe J.A. noted that informant privilege is not something that can be balanced against other competing rights and privileges. Accordingly, the edited file should not have been disclosed. Sharpe J.A. was also critical of the way that the process unfolded:

31… The trial judge was not required to proceed with the disclosure motion on the basis of an abstract theory of relevance that had no foundation in the evidence or anticipated evidence and the positions of the parties, or based on a legal argument that was doomed inevitably to failure…

23Mr. Bawden relies on R. v. Eagle, [1996] O.J. No. 2867 (Gen.Div.). In that case, Trafford J. examined the TPS informant file. As a result of that examination he found that the investigating officer had failed to fully follow the TPS procedures relating to informants. Trafford J. also found that there had been material non-disclosure and that the investigating officer had behaved with a reckless disregard for the truth.

24In my view, Eagle is distinguishable from this case. In Eagle, the search warrant affiant had been cross-examined. Although it is not clear from the reported decision, it is obvious that Trafford J. already had access to the informant file. I also point out that Trafford J. was not engaged in a Step 6 Garofoli process.

25In R. v. Doucette, [2009] O.J. No. 5917 (Sup.Ct.) Conway J. was presented with a similar request for the TPS informant file. She distinguished Eagle on the grounds that it was decided by prior to either Omar or Liepert.

26In R. v. Ebanks, 2009 ONCA 851, [2009] O.J. No. 5168, 249 C.C.C. (3d) 29, 97 O.R. (3d) 721 (C.A), the defence argued that a wiretap agent had a duty to conduct an independent review of the investigation prior to applying for an authorization. MacPherson J.A. emphatically rejected that suggestion, on the basis that it would transform Crown counsel into an independent investigator and blur the distinction between the Crown and the police, who have independent functions in the criminal justice system: paras. 48, 49.

27It is obvious that an important principle of our system is that all of the parties – Crown, police, defence – perform their important functions fearlessly and independently. Crown counsel must be in a position to say “no” to the police. Turning Crown counsel from a quasi-judicial officer into a second investigator would undermine that independence. What applies to Crown counsel applies with even greater force to a judge. Turning a judge into an inquisitor or yet another investigator also risks blurring functions and undermining judicial independence.

28If there is to be such a revolution (and leaving aside issues of constitutionality) it is for Parliament to specifically give that role to judges. Even where the role of a judge has been at issue, Parliament has specifically chosen not to alter the judiciary’s traditional role.

29In Application Under s. 82.28 of the Criminal Code, 2004 SCC 42, [2004] 2 S.C.R. 248, 240 D.L.R. (4th) 81, 184 C.C.C. (3d) 449 the Supreme Court considered the constitutionality and purpose of some sections of the anti-terrorism legislation enacted after the shocking events of September 11, 2001. Section 82.28 created a judicial investigative hearing where a named person could be compelled to provide evidence outside the context of a trial. The Crown sought an order that a named person be compelled to provide evidence in relation to the terrorist attacks against Air India aircraft that took place on June 23, 1985. In upholding the constitutionality of the legislation the Court re-affirmed the traditional role of a judge:

80 Judicial independence is the "lifeblood of constitutionalism in democratic societies": Beauregard v. Canada, 1986 24 (SCC), [1986] 2 S.C.R. 56, at p. 70…

82 The twin aspects of judicial independence and impartiality are relevant to this appeal. The first is the requirement that the judiciary function independently from the executive and legislative branches of government: Beauregard, supra, at pp. 72-73. The second is the recognition that judicial independence is necessary to uphold public confidence in the administration of justice: Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13…

30The Court was very clear that even where a judge is empowered in relation to an investigative tool, the judge does not become an investigator or inquisitor:

84 One of the criticisms levied against s. 83.28 is that it co-opts the judiciary into performing executive, investigatory functions in place of its usual adjudicative role: see, e.g., Paciocco, supra, at p. 232. Essentially, the assertion is that judges acting under s. 83.28 lack institutional independence or impartiality…

85 The role of the judge was described by this Court in Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35, at para. 108:

The judicial function is absolutely unique. Our society assigns important powers and responsibilities to the members of its judiciary. Apart from the traditional role of an arbiter which settles disputes and adjudicates between the rights of the parties, judges are also responsible for preserving the balance of constitutional powers between the two levels of government in our federal state. Furthermore, following the enactment of the Canadian Charter, they have become one of the foremost defenders of individual freedoms and human rights and guardians of the values it embodies ... . Accordingly, from the point of view of the individual who appears before them, judges are first and foremost the ones who state the law, grant the person rights or impose obligations on him or her.

86 We find that the substance of such a criticism is not made out in the context of the s. 83.28 judicial investigative hearing. Judges routinely play a role in criminal investigation by way of measures such as the authorization of wire taps (s. 184.2 of the Code), search warrants (s. 487 of the Code), and in applications for DNA warrants (s. 487.05 of the Code). The thrust of these proceedings is their investigatory purpose, and the common underlying thread is the role of the judge in ensuring that such information is gathered in a proper manner. The place of the judiciary in such investigative contexts is to act as a check against state excess.

31To engage in random virtue testing of the police by engaging in inquisitorial procedures risks blurring the line between judge and investigator and making the police into an arm of the Court. Proceeding in this manner also risks undermining the critical role played by defence counsel as fearless advocates standing apart from the machinery of the state.

32I also note that it there are potential practical dangers for a trial judge to take on an inquisitorial role. What if there are ambiguities in the informant file that cannot be resolved by a simple perusal? Should the judge also review police officer notes to be sure that the informant reports in the file are accurate? And if there is a discrepancy, what is the next step? Is the judge to have an in camera hearing where he or she questions a police officer? Or the officer’s supervisor? Or the informant? A judge could find him or herself caught in an endless series of collateral inquiries that have nothing to do with the main function of the court on a Garofoli application, which is to decide whether the accused’s rights under s. 8 of the Charter have been breached.

33In my view, the process that I am asked to undertake is not dissimilar to the so-called Pre-Franks hearing in the United States. It is, therefore, useful to consider the American experience and the Canadian reaction.

34There is no American equivalent to Step 6 of Garofoli. In United States v. Roviaro, 353 U.S. 53 (1957) the United States Supreme Court confirmed that informant privilege must give way where the informant is actually an agent of the state and participates in the criminal transaction at issue. The Canadian position is identical: R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979, 61 C.C.C. (3d) 300 at paras. 38-39, where the Court cites Roviaro in support. The rule stated in Roviaro is that “where the disclosure of an informant’s identity, or of the contents of his communication, is relevant and helpful to the defence of an accused, or is essential to the fair determination of a cause, the privilege must give way.” It is important to understand that the Court was speaking of the defence on the merits, which is equivalent to our “innocence at stake” exception: United States v. Fields, 113 F.3d 313 (2nd Cir. 1997). The government may redact informant information where disclosure would identify the informant. A defendant has no right to the redacted material. Where suppression of evidence is sought, if the government chooses to support the warrant or authorization without regard to the redacted material, a court determines the validity of the warrant based on the remaining material: Roviaro, supra; United States v. Forrester, 592 F.3d 972 (9th Cir. 2010). This, of course, is not unlike the Canadian position in steps 1 to 5 of Garofoli.

35Instead of Step 6, the American procedure is set out in Franks v. Delaware, 438 U.S. 154 (1978). Where an accused is able to show as a preliminary matter that the government’s affidavit contains inaccuracies or omissions as a result of the affiant’s falsehood or reckless disregard for the truth, and that the statements were material to the issuing of the authorization, a full evidentiary hearing is held: United States v. Rajaratnam, 719 F.3d 139 (2nd Cir. 2013). This preliminary hearing is conducted ex parte and in camera in order to determine the threshold issue where there is an inquiry into the history and reliability of a confidential informant: United States v. Reeves, 210 F.3d 1041 (9th Cir. 2000). That procedure can include an examination of the police and even of the informant him or herself: Fields, supra, at para. 51. The full Franks hearing is then required to determine whether there has in fact been perjury or a reckless disregard for the truth and whether the authorization can still be supported.

36As noted, there are some similarities to the approach that Mr. Bawden urges me to take, and to the ex parte and in camera threshold hearing that is part of the Franks procedure. The majority in Garofoli examined Franks in the context of an application to cross-examine a wiretap affiant and rejected the requirements for leave as too restrictive. The Court could have adopted the Franks procedure for dealing with wiretap authorizations based on informant information. Instead, the Court opted for the procedure set out at para. 79 of Garofoli, of which Step 6 is at issue here.

Disposition

37I therefore conclude that it would be an error of law to proceed with a subpoena to the TPS in this case and to examine the informant file. The application is dismissed.

Goldstein J.

Released: November 27, 2013