ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-1390000440

DATE: 20140321

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

-and -

DEMARIA IZZARD
Applicant

J. Mitschelle, for the Crown Respondent

J. Miglin, for the Applicant

HEARD: March 10, 11,12, 2014

J. Wilson J.

RULING ON GAROFOLI APPLICATION

The application

[1] Demaria Izzard brings this application seeking the exclusion of evidence found when the police executed a search warrant in her apartment. The search warrant was for a firearm, ammunition and firearm related material. They did not locate a firearm, but located 135.02 gm of powder cocaine and 101.70 gm of crack cocaine, along with $1625.00 in Canadian currency located in the bedroom. They also recovered drug related items including scales and an alleged debt list. Ms. Izzard is charged with possession of cocaine for the purpose of trafficking, and possession of the proceeds of crime.

[2] The defence seeks to set aside the search warrant, arguing that this is a warrantless search. The defence challenges the adequacy of the Information to Obtain the Search Warrant (the ITO) sworn in support of the Search Warrant granted May 23, 2012, and executed on May 24, 2012. The information in the ITO alleges that the applicant is a drug dealer that uses a firearm to protect her established territory. The information in the ITO largely came from two confidential informants involved in the drug culture with criminal records. The applicant argues that the redacted version of the ITO with the excisions and amplifications is insufficient and does not disclose reasonable and probable grounds to believe that the police would find a firearm in Ms. Izzard’s apartment. The defence argues that applying the criteria in R. v. Debot, [1989] 2 S.C.R. 1140, the requirement of credible, compelling evidence that has been corroborated for the two confidential informants has not been met.Therefore the search of Ms. Izzard’s apartment was in breach of section 8 of the Charter and the defence argues that admitting the evidence pursuant to section 24(2) of the Charter would bring the administration of justice into disrepute.

[3] As a result of a potential conflict of interest that has arisen with counsel for the defence, at the conclusion of this application and after advising of my ruling with reasons to follow, a mistrial was declared. However, the parties have both agreed to be bound by the result of this preliminary application.

Step 6 of Garofoli

[4] The defence concedes that the redacted ITO provides cogent evidence that the applicant is a drug dealer, but challenges the quality of the evidence that the applicant had a handgun in her residence.

[5] The defence challenges the sufficiency of the redacted ITO. The crown agrees that I should proceed directly to a step 6 analysis in accordance with R. v. Garofoli, [1990] 2 S.C.R. 1421 at p. 1461 as adapted by R. v. Learning, 2010 ONSC 3816, [2010] O.J. No. 3092. R. v. Learning permits the reviewing judge to consider as much of the information provided by a confidential informant contained in an unredacted ITO as required to support the authorization of the search warrant.

[6] In approaching the application in this manner the crown acknowledges that the redacted version of the ITO would not be sufficient to support a search warrant without consideration of the information in the unredacted ITO. The defence did not oppose this approach proceeding directly to the step 6 analysis.

[7] In Garofoli, Sopinka J. confirmed at p. 1461 as follows:

... 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

[8] Sopinka J. summarized the principles for dealing with informant material in a wiretap affidavit now applied by extension, an ITO at p. 1456:

(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.

[9] In R. v. Learning, Code J. concluded that the "step six" procedure outlined in Garofoli could be adapted to situations where the crown needs to redact the ITO to protect the identity of confidential informants, but where the redacted ITO does not provide reasonable grounds for the purpose of obtaining a search warrant. Justice Code confirms the dilemma of the competing demands of Debot and Leipert, [1997] 1 S.C.R. 281 at para 107.

[10] The step 6 procedure must balance the interests of the accused to make full answer and defence and to be able to test and question the reliability of an informant’s evidence, with the confidential informant’s need for protection as to his or her identity.

[11] The Ontario Court of Appeal's decision in R. v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991, endorsed Justice Code's decision in Learning using the adapted Garofoli "step six” procedure. The crown should apply to have the judge consider as much of the excised material as is necessary to support the search warrant, which the trial judge may do upon providing the accused with a judicial summary of the excised material. The judicial summary should attempt to ensure the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence, while still protecting the identity of the confidential informant.

The Step 6 procedure in this case

[12] The crown provided me with the unredacted ITO and a draft judicial summary of the unredacted ITO.

[13] I made three preliminary observations about the judicial summary, which the crown considered and resulted in the submission of a second draft judicial summary. The defence sought clarification on some of the redacted statements in the judicial summary as well as information about the timing and location of incidents involving a handgun reported by CS#1 and CS#2. After submissions, a final judicial summary was prepared taking into account my comments to counsel and submissions made by the defence.

[14] The crown confirmed that in the unredacted ITO, there is an incident involving a handgun in the possession of the applicant reported by CI#1 that was undated. The crown confirmed that this incident did not take place in Ms. Izzard’s apartment.

[15] Further, the crown confirmed that in the unredacted ITO there was an incident that was timely involving CI #2 where the informant was in the applicant’s apartment and CI #2 observed the applicant in possession of a handgun. The crown initially was not prepared to specify the location of the incident for CI#2 as it may narrow the pool, but it is clear in the redacted ITO that CI# 2 made observations of a firearm in Ms. Izzard’s residence.

[16] Paragraph 26 of the redacted ITO confirms under the section “Grounds to believe that articles to be searched for are at the said location”. “CI #2 has been inside of 130 Linsmore Crescent #6, in Toronto, the address of Ms. Izzard and saw a Black 9 mm Handgun.”

[17] I note that paragraph 25 refers to apartment #3, but I conclude that this is a typo. This is not the only typographical error in the ITO, and all references in the ITO refer to the applicant’s residence as 130 Linsmore Crescent #6, Toronto, Ontario.

[18] I conclude that any further written disclosure beyond what is contained in the Final Judicial Summary as revised and marked E would compromise the safety and identity of the confidential informants and would breach the principles of informer privilege.

[19] Defence counsel sought the right to question the affiant of the Information to Obtain in three discrete areas relevant to the issues of credibility, reliability and corroboration of these confidential informants including:

• The criminal record of the confidential informants, including any crimes of dishonesty, not related to the police or perjury, as the affiant confirmed that although the confidential informants had criminal records, they had no convictions for obstruct justice or perjury. The crown was reluctant to allow questioning as it may narrow the pool.

• Clarification of when the confidential informants had provided information in the past, and whether that information was reliable, without asking questions that may narrow the pool.

• As the confidential informants were providing information in exchange for money, the affiant asserts that this adds to the reliability of the information provided. Defence counsel wished to explore this assertion.

[20] I ruled that defence counsel could raise issues with respect to these areas so long as the questions did not narrow the pool and compromise the identity of the confidential informants. The process proceeded on a question by question basis.

The Cross-examination of the affiant

[21] The affiant of the ITO, DC Preston Scott, has been transferred from 51 Division in Toronto, to the Kingston municipal police force. He was not permitted to take his notebooks with him when he was transferred, and at the present time they are lost. The affiant testified that efforts to locate his notebooks related to this investigation, and other investigations have to date been unsuccessful.

[22] The affiant had an independent recollection of this investigation, although he was unable to remember some of the finer details which would have been in his notebook. Given the limited scope of the cross-examination that I permitted, and after hearing submissions from counsel when the problem with the notebook was disclosed, steps were taken to ensure that available evidence was brought forward to compensate for the unfortunate loss of the officers notes. In any event, obviously the officers notes would not have been produced, as confidential information relevant to identity of the informants would be contained in the notes.

The criminal records of the informants

[23] The criminal records of CI#1 and CI#2 was an issue that defence counsel wished to explore in cross-examination. As the affiant was able to remember the names of CI #1 and 2, the investigating officer was able to obtain a copy of the criminal record redacting out the informants name which was sealed and made available to me for my review.

[24] The criminal records of CI #1 and CI #2 had not been filed with the issuing justice of the peace. The affiant testified that it was not the practice at the time (May, 2012) as directed by Covert Operations to file the criminal records of confidential informants with the ITO unless asked for by the issuing justice.

[25] The affiant confirmed that filing of the criminal record is now mandatory when an ITO is prepared. The crown confirmed that the judicial landscape changed with R v. Rocha, 2012 ONCA 707 which made it clear in October, 2012, that affiants are required to include the criminal record of confidential informants be filed as part of the information in the ITO. This ITO was prepared in May, 2012, before this clear direction was given by the Court of Appeal.

[26] The fact that each informant had several criminal convictions and was known to the finger print system was disclosed in the redacted ITO. The fact that the informants were very involved in the drug culture over a lengthy period of time was also disclosed. Further, the affiant stated for both informants that “The confidential source has never been charged with, or to the best of the affiant’s knowledge, tried to mislead the police in any way. The confidential source has never been charged with crimes of dishonesty towards the police or in regards to the obstruction of justice”.

[27] The crown was very concerned about defence counsel asking specific questions about the nature of the criminal record as it may narrow the pool and tend to identify the informant. Taking into account this submission, I ordered that the criminal records be filed and sealed to help me assess whether the statements contained in the ITO about the criminal records of the informants were fair and whether their criminal records impact on the assessment of reliability and credibility of each informant.

[28] The crown agreed that the consideration of the criminal records of CI#1 and CI#2 could be taken into account by me as evidence amplifying the unredacted ITO considered by the justice of the peace.

[29] The defence suggests that this failure to file the criminal records was a deliberate attempt to guild the credibility of the informants to mislead the issuing justice of the peace.

[30] I disagree.

[31] I conclude, having had the opportunity to review the details of the criminal convictions of CI#1 and CI#2, that the statements made in the ITO about the criminal record of the informants are fair and accurate, and that there was no attempt to mislead the issuing justice of the peace as to the facts. There was no attempt to bolster the credibility of the informants by failing to file the criminal record of these individuals. The affiant was simply following a direction from Covert Operations about what was appropriate to disclose in a search warrant at that time. The summary provided in the ITO was accurate.

[32] I note that the criminal record of the applicant, who has some 27 prior convictions, was not filed with the justice of the peace, and the affiant, similarly did a summary of the highlights of her criminal record in the ITO confirming that she had two prior drug convictions and a conviction for robbery with a penitentiary sentence of three years.

Evidence as to the reliability of the informants

[33] The affiant asserted in the ITO that both the informants were reliable and had been used in the past.

[34] The affiant was the handler of CI#1 and had used this person successfully on one occasion in the past. This personal knowledge and experience is outlined in the redacted ITO. In the redacted version, the affiant confirms that he has used CI#1 on one occasion and that he provided reliable information relating to the sale of crack cocaine, resulting in a search warrant being granted and executed, drugs being found, and charges laid. The affiant could attest to the reliability of CI #1 based upon his personal experience.

[35] The affiant did not have personal prior experience with CI#2 and any details supporting his assertion of reliance were contained in his lost notebook.

[36] To overcome the problem with the affiant not having access to his notebook, he made inquiries with Covert Operations about reports received with information from other officers, about CI#1 and CI#2. The purpose of the inquiry was to determine whether there was any information available in those reports or in the Covert Operations data base system about the reliability of CI #1 and CI #2 as informants.

[37] Covert Operations confirmed to the affiant that both CI #1 and #2 were carded informants, that there were reports in their files, but there was no information in their files available about the reliability of the information provided by either informant.

[38] In the redacted version of the ITO the affiant confirms that CI#2 was reliable based upon experience with other officers and that “it has been reported to me that the information was accurate”.

[39] The affiant has no present memory of any information with respect to reliability of CI#2. The affiant could not answer questions about where or from whom he obtained the information from about the reliability of the evidence previously provided by CI#2, although he did have the name of the handler of CI#2 who was not called as a witness.

[40] As the affiant was not in a position to testify about the reliability of CI#2 without the benefit of his notes, and as CO upon a review of their records could not assist on the question of reliability other than the informant was carded and reports existed, the crown agreed to excise from the ITO the statements as to the reliability of CI #2 on the third paragraph on page 13.

[41] The evidence confirms that CI#2 was carded, but I have no information as to his past reliability. In this application, this is the only excision from the ITO conceded by the crown, amplified by the evidence provided by Covert Operations that reports exist, and that the informant was carded.

[42] The excising of this information by the crown is not an acknowledgment that CI #2 was not reliable, but rather an acknowledgment that due to the loss of the notebook the affiant was unable to provide specific evidence as to the reliability of CI#2. The affiant was able to confirm that CI#2 had another handler, and the crown chose not to try to call that officer as a witness.

Reliability of tip if monetary gain

[43] The officer included a statement in the redacted ITO with respect to both informants that they “used Monetary Gain as the motive for providing the police with the information. From my experience when money is the motive, the information provided tends to be accurate because good information will supply that motive.”

[44] I allowed the defence to cross-examine on this statement.

[45] The affiant testified that monetary gain, in exchange for reliable information in his experience tends to produce good information, as a CI is not paid unless the evidence provided is confirmed.

[46] In cross-examination the affiant confirmed that the same principle of enhanced reliability of evidence applies to the motive of getting a crown letter, as would apply to monetary payment.

[47] I understand that if a CI receives something of benefit to him or her if the tip provided is subsequently confirmed with reliable evidence that may tend to produce a motive to provide accurate information. The disclosure of payment to a CI is appropriate and should be made in the ITO, and was properly made. The officer’s experience that the informant is not paid unless the tip pans out, and that this arrangement may tend to encourage reliability, is a fair statement based upon the experience of this police officer. Not a lot turns on this assertion, and I do not agree that this is a statement to mislead the issuing justice.

The test for setting aside the issuance of the warrant

[48] Section 487(1) of the Criminal Code provides that a justice may issue a search warrant if he or she is satisfied that there are reasonable grounds to believe that evidence of a criminal offence will be found at a specified location.

[49] Where a search warrant has been judicially authorized it is presumed to be valid. On an application to challenge a search warrant under section 8 of the Charter the applicant must establish that there was no basis for the authorization of the search warrant: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para. 131; R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343 at para. 30.

[50] The issue on review of granting the search warrant is whether there was some evidence that might reasonably be believed to support the issuance of the search warrant, not whether there is some guarantee the confidential informant was telling the truth about the alleged criminal activity: R. v. Caissey, 2007 ABCA 380, [2007] A.J. No. 1342 (Alta. C.A.) at para. 23, affirmed 2008 SCC 65, [2008] 3 S.C.R. 451

[51] The Supreme Court of Canada in Morelli confirms the issue for the reviewing court is not whether I would have issued the search warrant on the information provided to the justice but whether there was sufficient credible and reliable evidence to permit the justice to find reasonable and probable grounds that an offence had been committed and that evidence of that offence would be found at the specified location. At paragraph 40, Fish J. confirmed the test on review as follows:

In reviewing the sufficiency of a warrant application, however, "the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued" ... The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.

[Emphasis in Original, Citations Omitted]

[52] I must assess whether the tips provided in this case from the two confidential informants provide reasonable grounds for the issuance of a search warrant assessing the confidential informant's credibility, whether the tips were compelling and reliable and whether the tips were corroborated by the police investigation.

[53] As confirmed in R. v. Debot, [1989] 2 S.C.R. 1140 at para. 53 weakness in one area may be compensated by strengths in the other two. The assessment of credibility, reliability and corroboration are not separate assessments as it is the totality of the circumstances that must meet the standard of reasonableness.

Matters raised in argument

[54] I am satisfied that the final judicial summary supplemented by information provided by the crown, and the limited cross examination that I allowed, ensures that Ms. Izzard is sufficiently aware of the nature of the information that has been redacted from the ITO to be able to challenge the sufficiency and reliability of the information provided by the confidential informants.

[55] Defence counsel made comprehensive arguments and raised several issues including:

• The affiant included misleading, selective, erroneous information that should be excised from the ITO. These small points cumulatively create a deliberately misleading impression designed to bolster the reliability and credibility of the informants

• The failure to attach the criminal records of the informants to the ITO was a deliberate decision and the direction from Covert Operations. Not to include the criminal record of informants in an ITO unless requested is an illustration of bad faith and a serious systemic problem of not the affiant, but the police force in general.

• The incident disclosed by CS#1 involving a gun is undated, and should therefore be ignored. The incident disclosed by CS#2 is by an untested informant and is insufficient to provide the necessary grounds for the search warrant

• The incident recorded on video in March 2012 at a convenience store relates to the sale of drugs, and no gun was present. The hand gesture and threat of a gun was not made by the applicant. The suggestion that the applicant “surrounds herself” with violent individuals in the drug culture is misleading, as the video is a single incident.

[56] The crown argues that the affiant was honest, straightforward and credible. He did not in any way exaggerate or misrepresent any of the facts either in his viva voce evidence or the contents of the ITO. He was unshaken in cross-examination. There were two compelling detailed tips provided by two informants that are more than adequate to provide the necessary grounds to grant a search warrant.

Conclusions with respect to the section 8 Charter arguments

[57] I agree with the crown that the affiant was unshaken in cross-examination. He was candid, did not exaggerate and when he could not remember he was clear.

[58] I conclude that there is no merit in the defence suggestions that the ITO was cumulatively misleading or exaggerated or designed to mislead the issuing justice.

[59] There was an incident captured on video on March 4, 2012, in a convenience store on Sherbourne Street where drugs were being sold involving the applicant. She was clearly visible and was identified by the affiant as being involved in this incident. A male in the group threatened the convenience store owner making a gun gesture with his right hand stating “I told you already, do not come between us if you will come in our way, it will be very bad for you”.

[60] The affiant confirms that this incident confirms evidence given by CI#2 that the applicant is involved in the drug trade, but “it also shows that she surrounds herself with potentially violent associates who use the threat of gun violence as a way to intimidate ... citizens”. Defence counsel does not challenge that his client was captured on the video. Defence challenges the statement on the basis that “it shows that she surrounds herself with potentially violent associates”. The ITO outlines one incident, and the statement by the affiant must be taken in that context. This statement that the applicant surrounds herself with potentially violent associates would not have misled the issuing justice.

[61] On the issue of the failure to file the actual criminal records with the justice of the peace, I conclude that there was adequate disclosure of the criminal records, the circumstances of the informants, and that the summary provi