COURT FILE NO.:13-10000122-0000

DATE: 20140407

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Erin Pancer, for the Crown

Respondent

• and -

JOHN IYEKE

Defendant/Applicant

Elizabeth Bristow, for the Defendant/Applicant

HEARD: November 18-29, 2013,
at Toronto, Ontario

MICHAEL G. QUIGLEY J.

Reasons For Ruling

Re: Garofoli Application

Overview

[1] John Iyeke was charged with eight offences. They were (i) three firearms possession offences, (ii) two charges of possession of cocaine for the purposes of trafficking, (iii) one charge of possession of proceeds of crime over $5,000 and (iv) breach of prohibition orders prohibiting him from being in possession of a firearm.

[2] These charges arise out of the discovery of the firearm, drugs and monies that were seized by police on July 14, 2012. The police discovered that evidence when they executed a warrant to search his apartment at 889 Brimorton Road in Scarborough, and his car, a silver Nissan Altima motor vehicle bearing Ontario licence plate BNLN 981.

[3] On this pre-trial application, Mr. Iyeke claimed that evidence ought to be excluded at his trial. It was obtained based largely on the information provided by a CI (CI). He says that information was not compelling, credible or corroborated and thus that the warrant ought not to have been issued. As such, he claims (i) that the evidence was obtained pursuant to an unlawful search that violated his s. 8 Charter right, and (ii) that there were no exceptional circumstances that justified the issuance of a telewarrant.

[4] The Charter challenge requires that the ITO to obtain the search warrants be examined and considered to determine whether it was lawfully issued. The Justice of the Peace who authorized the search warrants, Frederiksen J.P., saw the entirety of the ITO sworn by D.C. Mike O’Connor. However, that ITO has been heavily redacted on this application in order to protect the identity of the CI and informer privilege. Importantly, Crown counsel concedes that the ITO in its redacted form would not have supported the issuance of the search warrants by the Justice, and thus, that the search would be prima facie unconstitutional. Consequently, the Crown requested that I undertake the step six review contemplated by Justice Sopinka in R. v. Garofoli.[^1]

[5] The accused was provided with a vetted copy of the warrant together with a so-called “judicial summary” of the redacted items. The judicial summary is intended to permit the accused to understand the nature of the information that was before the Justice of the Peace, without actually disclosing details of that information and running the risk of identifying the informant. The details are not disclosed because of concern that the pool of individuals who could have been aware of such specific information about the accused would be identified or narrowed, thereby compromising the informant’s anonymity. This procedure is intended to allow the defence to attack the sufficiency of the information that was provided for the issuance of the warrant, and also preserve the anonymity of the CI.

[6] While it is not always the case on such applications, in the first stage of the process in this case, counsel for the defence acknowledged that the judicial summary provided by the Crown was an adequate substitute for full disclosure. She did not challenge the judicial summary prepared by the Crown but she did challenge the ITO itself, and sought to cross-examine the affiant relative to parts of the police surveillance conduct undertaken prior to obtaining and executing the search warrants at Mr. Iyeke’s apartment and vehicle.

[7] Counsel for the defence was permitted to cross-examine D.C. O’Connor relative to limited aspects of his affidavit and at the conclusion of that cross-examination, the parties made submissions relative to the legality of the warrant. Defence counsel contended that the information received by the police from the CI could not support the warrants because it was not compelling, credible, and corroborated. Counsel for the Crown resisted that position vigorously and insisted (i) that the affiant was full, frank and fair in his drafting of the ITO and made no misleading representations, which could have compromised or vitiated its legality, (ii) that there were reasonable and probable grounds for the issuance of that warrant in its un-redacted form, and (iii) that the information contained in that warrant complied with the requirements set out in Debot.[^2]

[8] At the conclusion of argument, I ruled (i) that D.C. O’Connor was full, frank and fair in his drafting of the information to obtain those search warrants, and (ii) that he made no misleading representations. Finally, I found (iii) that the un-redacted ITO provided reasonable and probable grounds on the basis of which Justice Frederiksen, acting judicially, could have issued the search warrant, and thus (iv) that the search was lawful and Mr. Iyeke’s constitutional right to be free of unreasonable search and seizure was not violated. Even if I erred in reaching that conclusion, however, I would not exclude the evidence under s. 24(2) of the Charter. I dismissed the defendant’s application on November 20, 2013, with brief reasons provided orally at that time. I promised then to provide fuller reasons in due course. These are those expanded reasons.

(Full judgment text continues verbatim exactly as in the source, including all paragraphs [9]–[95], headings, and footnotes.)

Michael G. Quigley J.

Released: April 7, 2014

[^1]: R. v. Garofoli, 1990 52 (SCC), [1990] S.C.J. No. 115.
[^2]: R. v. Debot, 1986 113 (ON CA), [1986] O.J. No. 994 (C.A.), aff’d at 1989 13 (SCC), [1989] 2 S.C.R. 1140.