COURT FILE NO.: 13-40000263-0000

DATE: 2014/03/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ROGER ALI

Accused

Counsel: Henry Poon, for the Crown Hilary Dudding, for the Accused

HEARD: February 3 – 7, February 10, 2014

REASONS FOR DECISION

(Ruling on a voir dire on s. 8 and s. 24(2) of the Charter)

B.A. ALLEN J. (Orally)

BACKGROUND

[1] On July 28, 2012, Roger Ali was arrested and charged with unauthorized possession of a firearm and breach of a condition on a recognizance that prohibited him from possessing a weapon. At the time of the current charges Mr. Ali was facing firearm charges pursuant to an arrest on May 24, 2010 and was released on recognizance.

[2] The police obtained a search warrant from a justice of the peace to enter his home at 30 Dombey Rd. in Toronto where they located and seized a 732 (.32 calibre) Harrington and Richardson revolver.

[3] The police made two telewarrant applications for a warrant. A confidential informant (“the CI”) provided information to support the warrant applications. D.C. McBride was the affiant on the affidavit in the information to obtain and acted as the informant handler to receive information for the applications. Justice of the Peace Grover denied the first application made on July 27, 2012. The second application was granted on July 28, 2012 by another justice of the peace.

THE LAW

General Principles on Issuance and Review of a Warrant

[4] Mr. Ali argues his rights under s. 8 of the Charter to be secure from unreasonable search and seizure were violated when the police entered his residence on April 28, 2012 and he asks the court to exclude the firearm under s. 24(2) of the Charter on the basis of the violation of his rights.

[5] Statutory pre-conditions for obtaining a search warrant on a property are set out in s. 487(1) of the Criminal Code. To obtain the court’s authorization for a warrant to search the property of a person suspected of committing a criminal offence, the police must satisfy the issuing judge or justice of the peace there are reasonable grounds to believe an offence has been committed or will be committed at the property. The issuing court must be satisfied by the information sworn in an affidavit in support of the warrant and must act on reasonable and probable grounds in authorizing a warrant.

[6] A warrant executed outside the rules can result in the exclusion of seized evidence. The execution of a warrant on a private residence is subjected to extra scrutiny as incursions on the private domain of a person’s life are considered more serious breaches than interferences in less private spheres [R. v. Grant, 2009 SCC 32 , 2009 SCC 32, [2009] 2 S.C.R. 353 , at para.76, (S.C.C.); and R. v. Debot 1989 13, p. 17, (S.C.C.)].

[7] Rules also govern the reviewing court’s review of the issuing court’s grant of the warrant. The question the reviewing court must ask is whether it can conclude based on the record before the issuing judge or justice, amplified on review, that the issuing court could have granted the authorization [R. v. Araujo, [2000] S.C.R. 992, at para. 54, (S.C.C.)]. If the answer is affirmative, the reviewing judge should not disturb the decision. The reviewing judge should not substitute their own decision for that of the issuing court [R. v. Garofoli, 1990 52 (S.C.C.), (1990), 60 C.C.C. (3d) 161, at para. 56, (S.C.C)]. The question is not whether the reviewing judge would have issued the warrant but rather whether there was sufficient credible and reliable evidence that would allow the issuing court to find reasonable and probable grounds to believe that an offence was being committed, had been committed or would be committed and that evidence of the offence would be found at the specified time and place [R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40, (S.C.C.)].

Use of a Confidential Informant

[8] When the police use information from confidential informants to support the application for a warrant, critical considerations come into play. The law extends special privilege to a confidential informant. The privilege is based on the crucial role informants can play in police investigations. Due to potential danger to a confidential informant, the police and Crown have a positive obligation to protect the identity of a confidential informant [R. v. Leipert, 1997 367 (S.C.C.), [1997] 1 S.C.R. 281 (S.C.C)]. The courts are not exempt from guarding the privilege.

[9] Information in the information to obtain that could potentially identify the informant is redacted to protect the privilege. This raises the question of how the defence can resist a warrant when information that might be material to a challenge could lay behind the redaction making it inaccessible for full answer and defence. While informer privilege is paramount there must be sufficient information available in the information to obtain upon which the issuing court can assess the credibility and reliability of the informant and the information provided [R. v. Debot, at pp. 215-216].

[10] As other courts have observed, competing interests are engaged – the accused’s right to make full answer and defence, on one hand, and the police and Crown’s legal obligation to protect the confidential informant, on the other. The nub of the question is in the requirement that the warrant application must contain sufficient credible and reliable information to satisfy the issuing court’s task. The reality is that sometimes the most potentially probative information in the information to obtain comes from the informant and it stands to reason that the more detailed and precise the informant’s information the greater the possibility that the issuing court would regard that information as credible and reliable.

[11] It is not unexpected that some or all of the precise and detailed information could potentially identify the informant. From the defence’s view, standing in the way of an accused’s right to more fully answer and defend is the defence’s inability to test information that might have been sufficiently compelling to persuade the issuing court to authorize the warrant.

[12] The reviewing court must juggle the requirement to prevent disclosure of privileged information with the defence’s disclosure rights against the background consideration of whether the issuing court had sufficient information to support a reasonable belief an offence was being committed at the specified time and place.

The Debot Criteria

[13] Debot provides guidance on the factors to be considered in determining whether the reasonable grounds to believe standard is satisfied. Regard must be had to whether the information in the information to obtain is sufficiently reliable to support a reasonable belief, reliability going to the accuracy and trustworthiness of the informant and the informant’s information to be assessed in the totality of the circumstances. Three enquiries are pertinent to this determination:

(a) Was the source credible?

(b) Was the information predicting the commission of the offence compelling?

(c) Did the police do an investigation to corroborate the information before conducting the search?

[R. v. Debot, pp. 215-216]

[14] Thus, the reviewing court must balance the informer privilege interest in Leipert against the interest expressed in Debot of having available sufficient reliable information. Code, J. addressed this challenge in R. v. Learning:

The extensive editing of [the officer’s] grounds in the case at bar was driven by the fact “Informer privilege prevents not only disclosure of the name of the informant, but of any information which might implicitly reveal his or her identity”, as McLachlan J. (as she then was) put it in Leipert, supra, at p. 393. The conundrum in which the police and Crown find themselves, in cases like the one at bar, is that Debot and s. 9 require disclosure of the informer’s means of knowledge and disclosure of as much detail as possible, as well as past history of reliability. The more that these matters are disclosed the more likely it is that the tip will rise to the statutory and constitutional standard of reasonable and probable grounds. And yet the more these matters are disclosed, the more likely it is that the details and the means of knowledge will implicitly identify the informer.

[R. v. Learning, 2010 ONSC 3816, [2010] O.J. No. 3092, at para. 100, (Ont. S.C.J.)]

[15] Sharpe, JA., for the Ontario Court of Appeal, spoke of the precariousness in deciding whether the disclosure of certain information in an information to obtain will identify the informant or narrow the pool of whom the informant might be:

The informer had provided the police with very detailed information about where the respondent would be found, what he would be wearing, the very car he would be driving, and the precise location in the car where a gun would be found. The pool of people who would be privy to that precise and detailed information must be very small. The individuals in that pool are likely known to the respondent. 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), 2007 ONCA 117, 218 C.C.C. (3d) 242, at 255, (Ont. C.A.)]

[16] A balance must be struck between the interest in Leipert to protect against disclosure of informant identifying information against the competing interest in Debot to ensure there is sufficient information to satisfy the credibility, compelling and corroboration criteria. The disclosure process for wiretaps as set out in Garofoli is proposed as a means to achieve some balance. Code, J., in Learning and Juriansz, JA., in R. v. Rocha have encouraged the use of Step 6 set in the Garofoli wiretap application process [R. v. Learning, supra, and R. v. Rocha, 2012 ONCA 707, [2012] 112 O.R. (3d) 742, at paras. 55-59, (Ont. C.A.)].

The Garofoli Step 6 Procedure

[17] Sopinka, J. proposed a six-step process for considering the validity of a wiretap application. These steps are being adapted to challenges to the validity of search warrants. The first five steps involve editing or redacting of information in the information to obtain.

[18] At Step 1 only the Crown has the affidavit and advises the defence whether it objects to disclosing information. At Step 2, the Crown provides the court with a copy of the information to obtain containing the proposed redactions which the court reviews. Once the reviewing judge has reviewed the redacted information to obtain and is satisfied with the edits and the Crown’s explanation of the basis for them, a redacted version of the information to obtain is provided to the defence. At this step, the defence is invited to make submissions on the effect of the redactions on the accused’s ability to challenge the reliability of the authorization and the court will hear reply submissions from the Crown. At Step 3, the judge will make the final determination about the redactions. At Step 4, the defence is provided with the redacted information to obtain. At Step 5, if the Crown is of the opinion the authorization can be supported by the redacted information to obtain, the authorization will be confirmed.

[19] At Step 6, if the Crown believes the warrant cannot be supported by the redacted information to obtain, the Crown may apply to the judge to request the court consider so much of the excised material as necessary to support the warrant. The court should allow the request only if it satisfied the accused is sufficiently aware of the redacted material to challenge it in argument or by evidence [R. v. Garofoli, pp, 194-195].

[20] Step 6 offers a compromise between two uneasy options, one of just proceeding with the redactions in place and the other of completely uncovering the information behind the redactions. A middle option is a judicial summary which is a summary of the redacted material, to be provided if it will fulfill the function of making the accused sufficiently aware of the redacted material. Courts are grappling with how to apply Step 6 to a redacted information to obtain, an especially challenging exercise the more extensive the redactions. The use of this procedure for search warrant applications is currently in its infancy.

[21] The practical application of the italicized words poses one of the challenges in Step 6. As I observed earlier, when information behind redactions is before the issuing justice, particularly in persuasive detail, it would have reasonably been a motivating factor in authorizing the warrant. The reviewing court is required to consider what was before the issuing justice and any relevant additional information in amplification and determine if the warrant could issue. There is thus a tension between the reviewing court’s task and the accused’s ability to raise a full defence, to challenge the warrant by evidence or argument. Although not a complete answer to the weighing of these concerns, the Supreme Court of Canada has suggested, on Charter admissibility proceedings where the merits of guilt or innocence are not being determined, that the right to full answer and defence is somewhat attenuated [R. v. Pires and Lising, 2005 SCC 66, [2005] S.C.J. No. 67, at paras. 29-30, 463 (S.C.C.)]. This would have the effect of somewhat lessening the weight on the accused’s side of the balance of interests.

[22] Another question that arises is whether the reviewing court should consider both the redacted and unredacted portions in determining the reasonableness of issuing the warrant. It stands to reason this is the only logical approach to considering what was before the issuing justice [R. v. Brown, [2013] O.J. No. 5954, at para. 37, (Ont. S.C.J.); R. v. Brown, 2011 ONSC 6223, [2011] O.J. No. 4624, at para. 36, (Ont. S.C.J.); and R. v. Sahid, 2011 ONSC 979, [2011] O.J. No. 653, at para. 29, (Ont. S.C.J.)]. The Crown and the court therefore would have information not accessible to the defence.

[23] It then falls to looking at the judicial summary to determine if the requirements of the italicized words are met. This puts a finer point on the problem I alluded to earlier. It is possible that the contents of the judicial summary are required to be restricted because the redacted areas are so detailed that even an attempt to summarize or provide general descriptions of some of redacted areas could risk identifying the informant. This concern lies at the heart of the defence’s ability to challenge the warrant and at the core of the obligation to protect the informer when an information to obtain is heavily redacted. The answer to this conundrum cannot be simply to discard the information to obtain or require the Crown to not rely on the redacted information because the extent of the redactions restricts the defence from the fullest challenge to the warrant. If this were the answer, what would happen to the reviewing court’s task of seeing if the warrant could issue based on what was before the issuing justice? What would happen to the police’s obligation to provide information sufficient to satisfy the statutory pre-conditions?

[24] Logically, this could lead to the perverse result of discarding the most detailed and potentially probative information of criminal activity occurring at a particular time and place. This of course would defeat the statutory obligation that the police provide information sufficient to establish reasonable grounds to believe a crime has been or is being committed.

Cross-Examination of Affiant Officer

[25] A tool available to the defence to resist the warrant is cross-examination of the affiant officer and, when appropriate, the sub affiant officer(s). Cross-examination however is not an automatic right. The defence is required to apply for leave. The Supreme Court of Canada addressed the reason for this observing that the right to test evidence at trial on the merits is more fulsome than at an evidentiary hearing into admissibility. As well, the evidentiary burden at an admissibility hearing is not as great as the Crown’s onus at trial R. Garofoli, at para. [23]. The right to cross-examine is restricted to the defence showing a basis for embarking on the enquiry and the cross-examination is limited to the issue for consideration by the court:

With respect to prolixity, I am in favour of placing reasonable limitations on the cross-examination. Leave must be obtained to cross-examine. The granting of leave must be left to the exercise of the discretion of the trial judge. Leave should be granted when the trial judge is satisfied cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds.

R. v. Garofoli, at para. [23]

The limitation is also mindful of the possibility that unfettered cross-examination could risk inadvertently disclosing information that could identify the informant.

[26] The basic principle that a party seeking an ex parte court order has the obligation to make full, frank and fair disclosure to the court of material facts applies to warrant applications [R. v. Moore (1993), 1993 17 (BC CA), 81 C.C.C. (3d) 161 (B.C.C.A.) aff'd on appeal, 1995 131 (SCC), [1995] 1 S.C.R. 756 and R. Araujo, at para. 46]. Within the limitations on cross-examination, the defence can test the extent to which there was full, frank and fair disclosure before the issuing judge. As well, cross-examination on the three Debot criteria can assist the reviewing court in its assessment of whether the informant is credible and whether the information provided is compelling and corroborated.

[27] Debot sets out some ground rules for the application of the three enquiries:

• The factors in the enquiries should not be treated as separate tests. The ‘totality of the circumstances’ must meet the standard of reasonableness.

• Weaknesses in one enquiry area may to some extent be compensated by strengths in the other two. Bald or conclusory statements and statements amounting to gossip are not sufficient.

• A mere statement by an affiant that an informant told him that contraband would be found in a particular place is insufficient to constitute reasonable grounds to issue a warrant. More is required.

• The underlying circumstances given by the informant for his or her conclusion must be set out in the information to obtain to provide the issuing justice sufficient information to satisfy himself or herself there are reasonable grounds for believing what the informant has alleged.

• The source and quality of the information provided at the time the search was executed must be examined in determining the validity of the warrant.

[R. v. Debot, 1986 113, at p. 5, (On CA)].

[28] The reviewing court’s scrutiny is not limited to the information in the information to obtain that was before the issuing court. The reviewing court must consider any amplification or additional information presented at the admissibility hearing to correct minor errors. Recourse should only be had to correction and amplification to rectify good faith errors by the police in preparing the information to obtain rather than deliberate attempts to mislead the issuing justice R. v. Araujo, at para. 58 and R. v. Morelli, at para. [41]. The court in Araujo, in considering the balance that must be struck between state interests and individual privacy interests, held:

Since a prior authorization is fundamental to the protection of everyone’s privacy interests, amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. On the other hand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity[^1] but had, in good faith, made some minor, technical error in the drafting of their affidavit material [R. v. Araujo, at para. 59].

[29] The rules that govern the drafting of the information to obtain are not strict. The information to obtain is not expected to be drafted to perfection. Flaws are to be expected [R. v. Nguyen, 2011 ONCA 57, 2011 ONCA, at para. 57, (Ont. C.A.)]. Inaccuracies or material facts not disclosed do not necessarily detract from the satisfaction of the statutory pre-conditions R. v. Pires and Lising, at para. [30]. Errors in the information, "whether advertent or even fraudulent, are only factors to be considered in deciding whether to set aside the authorization and do not by themselves lead to automatic vitiation of the authorization" [R. v. Bisson, 1994 46 (SCC), [1994] 3 S.C.R. 1097, p. 1098, (S.C.C.)]. The Ontario Court of Appeal in R. v. Nguyen remarked:

… the review is not an exercise in examining the conduct of the police with a fine tooth comb, fastening on their minor errors or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application [at paras. 57-58].

[30] It is not proper for a warrant application to contain incomplete, misleading or misrepresentations of information in relation to the investigation. The warrant will typically be invalid if the misstatement or omission was deliberate or there is a finding of bad faith [R. v. Melenchuk (1993), 1993 1011 (BC CA), 24 B.C.A.C. 97 (B.C.C.A.)]. However, where the justice could have granted the warrant regardless of the deception, it may still be valid [R. v. Bisson, p. 1097 and R. v. Garofoli].

Determination by the Reviewing Court

[31] After considering the unredacted and redacted information to obtain, the judicial summary and any amendments to it, evidence obtained through cross-examination of the affiant officer on the Debot criteria and the fullness and frankness of disclosure and any other relevant consideration, the reviewing court will decide if the warrant could reasonably have issued.

APPLICATION OF PRINCIPLES TO THIS CASE

The Information to Obtain

[32] Officer Ray McBride was tasked to prepare both the July 27^th and July 28^th, 2012 warrant applications, to handle the CI, and to be the affiant on the ITOs.

[33] Officer McBride received word from another officer that an informant had information about 30 Dombey. Officer McBride met with the CI on one occasion for about one hour. He had had no previous involvement with the CI and the CI was not “carded” or registered with the police as an informer. Officer McBride made memo notes of that interview and those notes were before the court in a redacted form. The court was provided with the unredacted notes. Information similar to that redacted in the ITO was redacted in the memo notes.

[34] The first warrant application sought a three-day window, July 27 to July 30, 2012, to execute the warrant. Justice of the Peace Glover refused the first warrant application at 11:58 a.m. on July 27, 2012. At the bottom of page 1 of the July 27^th telewarrant is a written notation that appears to be Justice Glover’s writing which states:

1. Only evidence from an unproven confidential source

2. Paragraph 21 refers to narcotics night grounds appear to be a “cut paste”. Unsure what other parts may not specifically apply to this application. It would appear that this document was not read completely before being signed and sworn to

3. Paragraph 26 asks for a 3 day window to allow investigation …

Only part of the third point is visible on page 1 as the balance appears to have been cut off with photocopying.

[35] The second warrant was issued at 4:50 p.m. on July 28, 2012 by Justice of the Peace Carol Seglins and a two-day window was allowed for execution. On July 28^th, the police executed the warrant at approximately 5:50 p.m. Mr. Ali was present, the revolver was seized and Mr. Ali placed under arrest.

[36] The principal changes in the second redacted ITO were the addition of information about the findings from surveillance on 30 Dombey, information supporting the identification of Mr. Ali, the identity of his surety and the grounds for the request for night time execution. A bail compliance check by the police on July 28 confirmed Mr. Ali’s residence and presence at 30 Dombey.

[37] Through a CPIC computer search Officer McBride learned the CI was currently before the court on outstanding charges, and had previous Criminal Code and drug charges but had no criminal record. Officer McBride stated he did not recall if the CI’s charges were withdrawn charges, or were resolved by judicial stays or exclusions. The nature of the CI’s previous criminal charges was not included in the ITO. His memo notes do not contain this information. However Officer McBride testified he knew from the CPIC search the nature of the previous charges and what offences were outstanding. He concluded that the CI’s offences were not crimes of deceit that would impact the CI’s trustworthiness.

[38] The ITO contains information about the CI’s motivation for providing information for the warrant. They were motivated by the possibility of monetary gain and consideration on their outstanding charges if they provided information.

[39] The CI provided identification information for Mr. Ali, his age, eye and hair colour, height, size, race and detail about facial hair and information about the exterior of the house. The ITO indicates a RICI programme search disclosed a photograph of a Roger Ali, dob 1990.02.01. The photograph was shown to the CI who identified the person as Roger Ali living at 30 Dombey. Surveillance confirmed the address and location of the house and the description of the exterior of the premises.

[40] The ITO also contains the results of a police data base search on Mr. Ali. It states Mr. Ali has outstanding charges from May 24, 2010 for possession of a firearm, discharge firearm, careless storage of a firearm and that he is on recognizance of bail under house arrest on a condition that he cannot be away from 30 Dombey without his mother who is his surety and is not to possess a firearm.

[41] The ITO states the police computer search revealed 276 returns for 30 Dombey, among them numerous returns for bail compliance checks. Although not stated in the ITO, Officer McBride testified there were 205 returns for compliance checks and in no case was Mr. Ali found to be in non-compliance.

[42] The ITO also states Mr. Ali has previous charges for possession of marijuana and cocaine, carrying a concealed weapon, possession of a prohibited weapon, weapons dangerous and assault with a weapon. The ITO does not specify the details of these offences or the disposition of the charges. The ITO does not expressly state Mr. Ali does not have a criminal record.

The Judicial Summary

[43] The defence received disclosure of the redacted ITO and memo notes. The ITO and notes are heavily redacted. As noted earlier, the information in the redacted areas of the memo notes is similar to redactions in the ITO. The Crown conceded the redacted ITO lacks sufficient information to justify the issuance of the warrant. The Crown’s position is however that the unredacted ITO that was before the issuing justice contains sufficient information to support the justice’s decision to issue the warrant.

[44] The Crown applied to have a draft judicial summary prepared which request the defence did not dispute. I acceded to the Crown’s request. The Crown provided the unredacted ITO and a draft judicial summary of the redacted information. I engaged with the Crown in a necessarily cryptic discussion about the redacted areas with a view to considering the possibility of disclosing further information to the defence. With the exception of a few minor areas where I required the redaction be removed, I was satisfied as to why the Crown sought protection from disclosure of the remaining redacted information. The Crown agreed that the aspects of the information where redaction was removed would not identify the informant or narrow the pool of persons of whom the informant might be. The final draft of the judicial summary was presented to the defence.

[45] The defence challenged the judicial summary. It argued the summaries of the various redacted portions of the ITO were not particular enough, such as the lack of precise details as to the currency of the information, to allow an effective challenge to the warrant application. The judicial summary in the defence’s view does not permit a test of the reliability of the information to allow it to challenge the warrant by evidence or argument.

[46] After considering the defence’s submissions and the nature of the redacted information I determined that allowing further disclosure of redacted areas would risk disclosing privileged information and create the potential of putting the CI at risk. The judicial summary is clearly not a complete answer to full disclosure. It cannot be when privilege concerns are also in the balance. With that in mind I however accept the Crown’s position that the judicial summary allows the defence to be sufficiently aware of the nature of the redacted material to challenge it in argument or by evidence.

[47] In deciding to proceed with the final iteration of the judicial summary I was mindful of the Supreme Court’s suggestion in Pires and Lising that the defence’s right to full answer and defence on admissibility applications is somewhat attenuated. I was also mindful of the defence’s opportunity through cross-examination to test Officer McBride’s credibility on the fullness and frankness of disclosure and on the reliability of the unredacted information in the ITO and memo notes.

Application of the Debot Criteria

[48] It is the Crown’s burden in applying the three enquiries to establish reasonable grounds to believe. I share a concern expressed by R. Kelly, J. of the Ontario Court of Justice on applying the Debot analysis where there is a substantially redacted information to obtain. Like Kelly, J., I find the redactions in the ITO make it difficult at points to fully explain some findings and the bases for the findings which, I note, has necessitated some conclusions that are rather blunt in tone [R. v. Farrugia, 2012 ONCJ 830, [2012] O.J. No. 6341, at para. 104, (Ont. C.J.)].

Is the Source Credible?

[49] The Crown concedes the weakness of the evidence supporting the credibility of the CI. The Crown relies on the proposition expressed in Debot that weaknesses in one enquiry area may be compensated by strengths in the other two enquiries and that the totality of the circumstances must be considered.

[50] The Crown acknowledges the CI was previously unknown and is not a registered or “carded” informant. The Crown also acknowledges the CI was induced with a promise of monetary reward and consideration on current charges and the effect this could have on the CI’s credibility. The Crown asserts however that the influence of the inducements on credibility would be minimized by the warnings that consideration would only be given if there were fruitful results and that criminal consequences could result if false information were provided.

[51] The focus of the Crown’s position is on the compelling nature of the CI’s information and the corroboration of the information by the police. The court has to consider whether in the totality of the circumstances the requirements of the other two enquiries are sufficiently satisfied such that weaknesses in credibility is compensated for.

Is the Information Compelling?

[52] Some factors to consider when determining whether information is sufficiently compelling to support the issuance of the warrant are for instance:

• whether the information is of such detail and precision so as to distinguish it from mere common knowledge, gossip or rumour, falsehood, coincidence or error; whether there are conclusory statements; whether the information inspires confidence that the source has knowledge of the target’s criminal activity and that the activity has occurred or will occur at the target address;

• whether the information is based on first-hand knowledge or on hearsay from another source; or

• whether the information is current or past; whether it is offered in relation to recently occurring or current events or events that happened in the past

[53] Officer McBride confirmed the information he received was obtained directly from the CI and not from a secondary source. I find considering the totality of the information before the issuing justice that she could have reasonably regarded the information in the ITO as sufficiently compelling.

Is the Information Corroborated?

[54] The Crown’s position, with which I agree, is that the police corroborated the information from the source to the extent they were able to.

• The CI provided information that Mr. Ali possessed a firearm. Police searches disclosed Mr. Ali’s past drug and firearm charges and details surrounding current firearm charges from May 24, 2010 with bail conditions including house arrest.

• The CI provided Mr. Ali’s name and detailed information describing Mr. Ali physically. A RICI search produced a photograph for a Roger Ali with a birth date of February 1, 1990 that meets the description the CI gave.

• The CI provided the 30 Dombey address and its location, a description of the exterior of the house and Mr. Ali’s connection to the address. The police investigation confirmed the address, location of the house and the description of the exterior of the house and that Mr. Ali resides there. The police compliance check on July 28^th established Mr. Ali met his bail condition to be present at the address and the likelihood he would be present when the warrant was executed.

• The CI provided other details that were redacted due to their privileged nature.

[55] The defence argues the information was not sufficiently corroborated to provide a reasonable basis for the issuance of the warrant. Defence counsel questioned why the police did not do more searches and why they did no further investigation of the CI. She also raised questions why police did not provide a photo array for the CI to identify Mr. Ali instead of a single photo.

[56] The police were able to confirm information in the unredacted ITO that due to the cloak of privilege I am not at liberty to discuss. I find on all the information in the unredacted ITO that the CI’s information was sufficiently corroborated by the police to reasonably allow the issuing justice to issue the warrant.

Full, Frank and Fair Disclosure

[57] The defence takes the position the police did not provide full, frank and fair disclosure to the issuing justice.

[58] As noted earlier, the affiant is required to make full, frank and fair disclosure of all information known to the officer relevant to the matter before the issuing justice. But this does not mean there is an obligation to disclose every fact that might possibly be relevant [R. v. Chambers (1983), 1983 245 (BC CA), 9 C.C.C. (3d) 132 (B.C.C.A.), p. 143; aff'd (1986), 1986 22 (SCC), 26 C.C.C. (3d) 353 (S.C.C.)]. As Pires and Lising and Debot remind us, inaccurate information or deceptive information in a warrant or non-disclosure of a material fact will not necessarily detract from the satisfaction of the statutory pre-conditions of establishing a reasonable belief of occurring or pending criminal activity in a particular place at a particular time. It will depend on the factual context whether the proposed challenge will likely have an impact on the admissibility of the evidence.

[59] Full, frank and fair disclosure requires the information provided by the affiant to be balanced, balanced in the sense that it must include information both favourable and unfavourable to the issuance of the warrant R. v. Morelli, at para. [58]. The defence argues the ITO is not balanced with respect to some areas of the information. There is not, in the defence’s view, symmetry in the treatment of facts that would tend to support the warrant and those that would tend not to.

[60] One of the areas the defence challenges is the information related to the treatment of the CI’s contact with the criminal justice system as compared to how the defendant’s contact is treated. The circumstances giving rise to Mr. Ali’s May 24, 2010 firearm charges and details of the types of offences are provided. Mr. Ali’s earlier charges which include a firearm charge are also included. There is no express statement that Mr. Ali does not have a criminal record. Officer McBride explained that the issuing justice could infer from the absence of convictions on those charges that Mr. Ali does not have a criminal record. In contrast, the nature of the CI’s current and outstanding charges is not provided, although that information was available to Officer McBride. The ITO explicitly states that the CI has no criminal record.

[61] The defence also raises the unfairness of Officer McBride neglecting to provide details about Mr. Ali’s past weapons, drug and assault charges that would have cast those offences in a less serious light. This, the defence argues, might have unfairly led the issuing justice to an inaccurate view of the defendant.

[62] For instance, the ITO mentions the past charges but does not indicate the charges occurred when Mr. Ali was a young person at ages 13, 14 and 15. The synopses related to the charges show that the assault with a weapon and weapons dangerous charges involve Mr. Ali at age 13 standing in the window of his home with a knife yelling at the complainant who was outside the house and that the firearm charge involved Mr. Ali at age 14 in possession of an air pistol and a small knife. With the drug possession charge at age 15, the white powder in Mr. Ali’s possession was not tested and determined to actually be cocaine.

[63] A more balanced view of the defendant, the defence also argues, would have also included the fact that of the 276 search returns on 30 Dombey, 205 were bail compliance checks all of which found Mr. Ali in compliance. What the ITO indicates is that of the numerous returns for bail compliance checks, on the majority of the checks he presented himself in person to the officers.

[64] I will deal with my determination in relation to the facts around criminal offences later in the decision.

[65] Officer McBride was further cross-examined on the bases of the refusal of the first application and Officer McBride’s communication of the reason for the refusal to the issuing justice. The prospect of the police “judge-shopping” was also raised. The defence argues Officer McBride did not provide full and frank information to the issuing judge.

[66] Officer McBride testified that he informed the issuing justice that the reason the first application was denied was for the first reason set out in handwriting on page 1, because the source was unproven. He testified he therefore focused for the second application on conducting further investigations into the CI information and on conducting surveillance and dispatching an officer to do a compliance check on July 28.

[67] Officer McBride testified he did not tell the issuing justice of the first justice’s concern that the narcotics night grounds, and possibly other parts of the application, seemed to be “cut and pasted.” [I will not deal with the third handwritten item on page 1 since a portion of it is cut off at the bottom of the page.] Officer McBride testified he saw the second reason as being in regard to an ancillary order and not as critical as the comment about the unproven source. He admitted he did not turn his mind to the further comment about other areas of the application. The defence says he was not completely frank with the issuing justice.

[68] Officer McBride explained he is aware of the prohibition against judge-shopping. Public interest in the integrity and repute of the criminal justice system would be compromised by such a practice [R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979 (S.C.C.)]. Officer McBride pointed out that both the first and second applications were made by telewarrant. He explained with a telewarrant application there is no way of knowing which justice will be assigned to decide the application. I accept that testimony as reasonable and apart from making the allegation, the defence has provided nothing to persuade me that the police judge-shopped.

[69] I do not find the fact Officer McBride did not inform the issuing justice of the second reason for refusing the warrant to be a critical consideration. It is understandable that he placed his focus on the concern about the unproven source. Corroborating the CI’s information bears directly on satisfying the statutory pre-conditions with respect to a firearm offence, whereas the ancillary request for night entry does not.

[70] I did allow the defence to cross-examine Officer McBride on the request for the narcotic night ground order, at first unaware of whether this line of enquiry might disclose information pertinent to the statutory pre-conditions. However, nothing was disclosed that assisted with the critical area of my review. I find therefore any deficiencies in that area of the ITO would not detract in any meaningful way from the statutory obligation to satisfy a reasonable belief of an existing or unfolding firearm crime.

CONCLUSION

[71] The reviewing judge’s task is to determine whether the warrant application provided reasonable grounds to believe a crime was being committed or unfolding or would be committed at the target address at the authorized time. The guiding consideration in applying the three Garofoli enquiries and in assessing the fullness, frankness and fairness of the disclosure is the extent to which the information in the application supports or detracts from the satisfaction of the statutory pre-conditions. Reviewing judges’ determinations are necessarily case specific. No two cases are likely to present with the same facts situation. How the Garofoli factors are weighed and how strengths or deficiencies in disclosure are regarded in a case is dependent on the particularities of the case. The reviewing judge must make their determination on the totality of the facts before their court.

[72] Looking at the Garofoli enquiries, I accept the Crown’s position based on all the facts before this court, that the weakness in the credibility of the CI is adequately compensated by the compelling and corroboration criteria. I have found that the CI’s information was sufficiently compelling and corroborated in the second application to provide reasonable grounds for the issuing justice to have issued the warrant.

[73] I accept that the ITO had disclosure deficiencies but I do not find they are such as to invalidate the warrant. As Nguyen holds, the information to obtain is not expected to be drafted to perfection. The defence alleges the ITO was not in some parts balanced or sufficiently fulsome, such as in the area of disclosing the details of Mr. Ali’s past criminal charges.

[74] The Ontario Court of Appeal upheld the trial judge’s decision to decline to invalidate a warrant because the affidavit did not set out the details of the suspect’s criminal antecedents. The court held that an affiant is not obliged to describe the suspect's antecedents in the information to obtain where there are ample grounds set out to justify the issuance of the warrant R. v. Pratas, [2000 14730](https://www.canlii.org/en/on/onca/doc/2000/2000canlii14730/2000canlii14730.html), at para. [2], (Ont. C.A.)]. The Supreme of Canada also affirmed there is no obligation to disclose every fact that might possibly be relevant [R. v. Chambers (1983), 1983 245 (BC CA), 9 C.C.C. (3d) 132 (B.C.C.A.), p. 143; aff'd (1986), 1986 22 (SCC), 26 C.C.C. (3d) 353 (S.C.C.)].

[75] The omission of the criminal antecedent facts might be somewhat misleading as not presenting a full picture, but I find there is sufficiently compelling and corroborated information in the ITO to support the issuing justice granting the warrant.

[76] I find the same to be true of the omission to expressly state Mr. Ali had no criminal record and the inclusion of an express statement in this regard in relation to the CI. Even though this creates some imbalance, I find, given the availability to the issuing justice of sufficient information to satisfy the statutory pre-conditions that this omission is not such that it would have altered the issuing justice’s decision.

[77] Regarding the defence’s assertion that full and frank disclosure required Officer McBride to specifically state that 205 of the bail compliance checks showed Mr. Ali in compliance, I find Officer McBride need not have been so precise. The ITO was not as specific as citing numbers but did state that on the majority of the checks Mr. Ali presented himself to the officers.

[78] I found no fabrications or false statements in the ITO but rather some incomplete information and omitted facts. The case law has demonstrated there are no hard and fast rules for assessing the likely impact of a potential challenge to a warrant application. Even when the application contains inaccurate or deceptive information or omits material facts this will not necessarily detract from satisfaction of the statutory pre-conditions. Whether any misleading was advertent or inadvertent is a factor for the reviewing judge to consider but neither will automatically make the warrant unlawful. The factual context determines whether the challenge will likely have an impact on the admissibility of the evidence.

[79] It is not for the reviewing court to substitute its decision for that of the issuing justice but rather to determine if the issuing justice could on reasonable belief have issued the warrant based on the information in the warrant application. Overall, I find the issuing justice had sufficient information before her to form the reasonable belief that a criminal offence was being committed at 30 Dombey during the authorized period. The defence was not able to establish to my satisfaction that sufficient grounds exist to find the search warrant ought not to have issued.

DISPOSITION

[80] I find no breach of Roger Ali’s s. 8 Charter right to not be subjected to unreasonable search and seizure. Accordingly, I allow the 732 (.32 calibre) Harrington and Richardson revolver into evidence at trial. Therefore I need not address the application under s. 24(2) of the Charter of Rights.

B.A. Allen J.

Released: March 20, 2014

COURT FILE NO.: 13-40000263-0000

DATE: 2014/03/20

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ROGER ALI

REASONS FOR JUDGMENT

B.A. Allen J.

Released: March 20, 2014

[^1]: This is a requirement that must be met to obtain an authorization for a wiretap. To establish investigative necessity the issuing judge must be satisfied that all other methods of investigation have been ineffective, are not likely to be effective or are not practical in the circumstances. The court in R. v. Araujo, supra, held the court’s approach to amplification should be similar to that applied to errors on an application for a wiretap