COBOURG COURT FILE NO.: 13-378

DATE: 20140428

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NICHOLAS NASCIMENTO

Defendant/Applicant

Mark Moorcroft, for the Crown/ Respondent

Ariel Herscovitch, for the Defendant/Applicant

HEARD: February 10, 11, 12 and 13, 2014, and by written submissions

REASONS FOR DECISION ON RULING

MULLIGAN J.:

Introduction

[1] The Applicant, Nicholas Nascimento, is charged on a multi-count indictment with counts relating to possession and storage of a loaded prohibited weapon. The charges arose from the execution of a search warrant on May 2, 2013. He applies to exclude evidence obtained pursuant to the search warrant as a violation of his s. 8 rights and seeks to exclude the evidence pursuant to s. 24(2) of the Charter on the following bases:

i) the search warrant ought not to have been issued by the justice of the peace. The information provided to him was not sufficiently compelling or credible and not substantially corroborated through police investigation;

ii) the information provided to the defence in its redacted form is not sufficient to enable the applicant to make full answer and defence;

iii) the evidence, the fruits from the search, should further be excluded after consideration of the factors articulated by the Supreme Court of Canada in R. v. Grant, https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html, [2009] 2 S.C.R. 353.

[2] The Crown submits that the application should be dismissed. The Crown argues that the information provided to the justice of the peace in its unredacted version was more than sufficient to authorize the issuance of the search warrant. With respect to the issue of whether the information was credible, compelling or corroborated the Crown submits that weaknesses in one area can be more than overcome by strengths in other areas. The Crown also submits in the alternative that if the search warrant should not have been authorized, the fruits of the search should still be admitted under the three-part analysis suggested in Grant.

The “Step Six” Garofoli Analysis

[3] The Crown submitted that this court ought to follow the “step six” process outlined in Garofoli to determine whether the warrant was valid.

[4] In R. v. Garofoli, [1992] S.C.R 1421 the Supreme Court of Canada suggested a procedure that reviewing courts could follow when the Crown relies on a heavily redacted Information to Obtain (ITO) to obtain a search warrant. As the court stated at p.1461:

6. If however the editing renders the authorization unsupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence”.

[5] In R. v. Rocha, https://www.canlii.org/en/on/onca/doc/2012/2012onca707/2012onca707.html, [2012] O.J. No. 4991 Juriansz J.A. gave further encouragement to the courts use of the “step six” procedure in Garofoli. As the court noted at paras. 49 and 51:

… That the court reviews an issuing justice’s decision to authorize a search without looking at all the information before the justice may make the process of review appear somewhat artificial to the ordinary citizen… There is reason to believe that, in many cases, the information excised from the ITO may well be the most pertinent. An informant who can be easily identified by the accused is more likely to be able to provide detailed and reliable information about the accused’s activities”.

[6] At para. 55 Juriansz J.A. gave this further guidance:

The procedure based on “step six” in Garofoli permits the Crown to apply to have the reviewing 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” to attempt to ensure “the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence”. [Citations omitted.]

[7] The procedure elaborated on in Rocha is the procedure that was followed in this case. The defence was provided with a judicial summary. In addition the defence applied for leave to cross-examine the affiant. The Crown opposed this application on the grounds that it might tend to identify the confidential human source (CHS). Leave was granted to cross-examine the affiant provided that there would be no questions or answers which would tend to identify the CHS.

[8] The defence then moved for further disclosure on the basis that the information provided including the redacted ITO and the judicial summary, were not sufficient to enable the defence to fully ague its application. That application was dismissed pursuant to oral reasons given. The defence and Crown then made submissions as to the application by the defence to exclude the evidence resulting from the search.

[9] The final submissions began by way of oral submissions but unfortunately due to illness on the part of the Applicant the matter was adjourned and both counsel, with the consent of the applicant, agreed to complete submissions in writing. Those submissions have been received.

[10] On May 2, 2013 Detective James Wright sought and received a search warrant to search the residence of Nicholas Nascimento at 170 Cowie Road Castleton, Ontario on the grounds that there was a restricted firearm there. The ITO contained an “Appendix C” consisting of about nine pages of information under the following headings:

(i) Introduction

(ii) Sources of Information

(iii) Criminal Code Sections

(iv) Overview of Investigation

(v) Involved Persons

(vi) Grounds to believe an offence has been committed

(vii) Grounds to believe things to be seized will afford evidence of the offence

(viii) Grounds to believe that the things to be seized will be at the place to be searched

(ix) Conclusion

(x) Sealing Order

Appendix C was provided to defence in its redacted form. However, prior to the hearing, defence was provided an unredacted version of Appendix C. The ITO contained a sealed packet known as “Appendix A”. The Crown provided a redacted copy of Appendix A to defence counsel prior to the hearing. As a result of the “step six” approach in Garofoli the defence was provided with a judicial summary of the redacted information. Appendix B, Mr. Nascimento’s criminal record, was also provided to the justice of the peace.

[11] The process of providing a judicial summary has been followed in a number of cases from the Superior Court of Justice of Ontario after Rocha.

[12] In R. v. Crevier, <https://www.minicounsel.ca/scj/2013/1880 [2013] O.J. No. 5833, Pattillo J. reviewed a draft judicial summary prepared by the Crown and ultimately adopted the Crown’s judicial summary. As the court stated at para. 40:

After careful review of the both the unredacted ITO and the redactions in the ITO generally and the specific paragraphs identified by the Applicant, and having regard to the factors set forth by Sopinka J. at paragraph 78 of Garofoli I was satisfied that all of the redactions in the ITO were necessary to protect the identities of the confidential informants and that their life or safety may be compromised if the ITO was unredacted in any manner. In other words I was satisfied that the redactions were appropriate to protect informer privilege.

[13] Similarly in R. v. Sahid, https://www.canlii.org/en/on/onsc/doc/2011/2011onsc979/2011onsc979.html, [2011] O.J. No. 653 Low J. accepted a draft judicial summary prepared by the Crown and acknowledged that the life and safety of the informant would be compromised if the draft were to be further redacted. As she concluded at para. 17, “For that reason, I concluded that an editing revealing additional details would not be appropriate in the circumstances.”

[14] In R. v. Brown, https://www.canlii.org/en/on/onsc/doc/2011/2011onsc6223/2011onsc6223.html, [2011] O.J. No. 4624, O’Marra J. reviewed a judicial summary provided by the Crown and directed that additional information be included in the judicial summary.

[15] In R. v. Farrugia, <https://www.minicounsel.ca/oncj/2012/830 [2012] O.J. No. 6341, Kelly J. of the Ontario Court of Justice provided an extensive review of the governing principals of search warrants. Kelly J. prepared a judicial summary and gave leave for the defence to cross-examine the applicant. Kelly J. then considered the search warrant and the individual facts to determine whether the information was compelling, the source credible, or the information corroborated.

[16] In R. v. Grant, <https://www.minicounsel.ca/scj/2013/6792 [2013] O.J. No. 4968 R.F. Goldstein J. considered a search warrant as well as a judicial summary which provided the defence with further information. At para. 25 Goldstein J. posed the following question:

What happens where the police set out compelling information from an informant in an ITO but the Crown cannot subsequently use that information to justify the issuance of the warrant without compromising the identity of the informant? Sopinka J. identified “the tension between the competing interests of law enforcement and the right of the accused to make full answer and defence.” [Citation omitted.]

[17] Goldstein J. made reference to “step six” in Garofoli and the procedure endorsed by the Court of Appeal in Rocha. As Goldstein J. noted at para. 40 and 42:

The content of the right to make full answer and defence is not static, but means different things in different contexts. In this case the content of full answer and defence consists of the right to know the basis upon which the search warrant was granted. The draft judicial summary satisfies that right…In my respectful view, the answer to that dilemma lies in the application of first principles. The protection of informant privilege is a value of superordinate importance. The right to make full answer and defence does not extend so far as to provide information that may compromise the identity of the informant.

[18] In this case, the information to obtain a search warrant was supported by Appendix C of the affidavit of Detective James Wright, who was cross-examined by the defence in connection with this application. The affidavit indicates that Wright has served as a police officer for twenty-seven years and is currently a detective in the gun and gang enforcement unit of the York Regional Police Service with extensive experience as a firearms investigator. He received information from a handler that a confidential human source (CHS) provided information that the Applicant was in possession of a MAC 10 Machine pistol at 170 Cowie Road, Castleton, Ontario. It should be noted that for the purpose of this hearing the defence acknowledged that the Applicant did reside at that residence at the relevant time.

[19] The information provided by the CHS was detailed in Appendix A and sealed in a packet after the warrant was issued. The defence received a redacted version of Appendix A. The information in the redacted version can be summarized in part as follows:

• “Nick” is approximately 6’4 inches with a medium build and is light skinned.

• “Nick” used to live at 333 French Avenue, Unit 8, Oshawa and now lives at 170 Cowie Road near Cobourg

• “Nick” did a nine-year stint in jail

• “Nick” drives a black dodge pick-up truck licence plate 6264TM

• “Nick” used to deal in coke but recently finished doing nine years

• “Nick’s” old partners name is Trevor Bolganol

• Gun in Nick’s possession is a MAC 10 or 11. The gun looks like an Uzi has no handle or butt and is a hand-held machine gun

• “Nick” considers himself to be a Freeman on the Land

• The MAC 10 will be found at 170 Cowie Road

[20] With respect to this information the redacted portion of Appendix A indicates that the police did the following corroboration:

• “Nick” refers to Nicholas Nascimento date of birth 4 September 1967

• There have been many contacts between police and Nick Nascimento, according to his criminal record

• The address on French Avenue was actually 337 French Avenue

• Nicholas Nascimento does reside at 170 Cowie Road

• Among his criminal record entries Mr. Nascimento has a criminal record including a sentence of five years and ten months plus twenty-six months pretrial custody

• Nick drives a black dodge pick-up truck with licence plate 2624TM

• Mr. Nascimento’s old partner was Trevor Bogdanow who is in custody at the time

• The police conducted surveillance on April 30 and May, 1, 2013

[21] The Appendix C contains a more detailed overview of the investigation conducted by the police. The appendix had an extensive review of descriptions of individuals who may consider themselves “Freeman on the Land”. In my view, this generic information is not well supported by the corroboration conducted by the police and merely seems an attempt to pad the information provided to the justice of the peace. Therefore, I will excise this information in my review of the authorization of the search warrant.

[22] However the report confirms the surveillance of the Applicant on April 30, and May 1st, 2013. On April 30, 2013 the police followed a black pickup truck licence 2624TM leaving 170 Cowie Road. They later saw the vehicle at a gas station and observed the driver to be Nicholas Nascimento. They were able to identify the driver because they had a photograph of him in their possession. The vehicle returned to 170 Cowie Road picked up other occupants and drove to French Avenue, Oshawa.

[23] On April 30, 2013 police surveillance indicated that Mr. Nascimento drove away from the residence at 170 Cowie Road in a black pickup truck eventually travelling to 337 French Avenue Oshawa. The surveillance team observed what they thought were hand-to-hand drug transactions and then later they observed driving movements which they perceived as an attempt to determine if the vehicle was being followed.

[24] The police obtained a search warrant and executed it at 170 Cowie Road during daylight hours. No one was at the address. The police seized a number of items including a loaded MAC 11 pistol and ammunition.

The Judicial Summary

[25] The Crown submitted a draft judicial summary for consideration through my judicial secretary. I responded through my judicial secretary, and I suggested that the judicial summary provide additional information to expand on the redacted ITO. The Crown considered these suggestions and provided a revised judicial summary which I accepted. The revised judicial summary was provided to defence counsel. The earlier drafts were sealed in the court file.

[26] The judicial summary is four pages and addresses the reasons for the vetting of words or sentences which would tend to identify the CHS. However the defence was provided with further information in the summary which could be summarized as follows:

• The handler received the information from the confidential human source within 45 days of the ITO;

• There was a first-hand relationship between the handler and the CHS;

• The CHS had a criminal record but not for perjury related offences’

• There was consideration arranged between the handler and the CHS;

• The handler received information and conducted checks. Those checks were listed on the unredacted portion of the ITO, and include a criminal record check, an address check indicating that the actual former address was 337 French Avenue, and a vehicle check, which indicated that Mr. Nascimento was the registered owner of a 2003 black Dodge truck, and the actual plate number was 2624TM.

[27] From a review of the redacted ITO and the judicial summary it becomes apparent that the tip was not an anonymous tip from Crime Stoppers but from a CHS whose criminal record the police were aware of.

Analysis

What is the role of the reviewing judge when reviewing a search warrant?

[28] In R. v. Ngo, https://www.canlii.org/en/on/onsc/doc/2011/2011onsc6676/2011onsc6676.html, [2011] O.J. No. 5023, C. Hill J., at para. 34, provided the following summary of general principles gleaned from a number of decisions:

(1) The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance.

(2) The review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts 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.

(3) The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, a common sense review not a line-by-line, word-by-word dissection, provides the fair and reasonable context for the assertions in question.

(4) Police officers are not legal draftspersons and cannot, in an ITO, be expected to “spell out things with the same particularity of counsel”.

(5) It will not be surprising that an ITO will have some flaws – “few applications are perfect”. The question remains whether the core substance of the ITO could support the justice of the peace’s exercise of discretion to issue the warrant.

(6) While it is expected that an ITO will present reliable balanced and material facts supporting the asserted grounds of belief, an ITO affiant need not attempt to replicate a Crown disclosure brief – the document should be clear, concise, legally and factually sufficient and “need not include every minute detail of the police investigation”.

[All citations omitted.]

[29] As the Supreme Court of Canada noted in Garafoli, at p.1452:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.

[30] In this case, the officers obtained a great deal of information from the confidential informant. In these circumstances, courts have often repeated that the information must be credible, compelling and corroborated: see R. v. Debot (1989), https://www.canlii.org/en/ca/scc/doc/1989/1989canlii13/1989canlii13.html, S.C.J. No. 118 at para. https://www.canlii.org/en/ca/scc/doc/1989/1989canlii13/1989canlii13.html. The three questions to be addressed can be formulated as follows, adapted from Debot:

(i) Was the information predicting the commission of a criminal offence compelling?

(ii) Where that information was based on a “tip” originating from a source outside the police, was that source credible?

(iii) Was the information corroborated by police investigation prior to making the decision to conduct the search?

[31] I will address each question in turn, acknowledging that both Crown and defence have made written submissions with respect to each question.

Is the information compelling?

[32] The CHS provided information that in part, could be considered biographical information known to others. His height, his former address at French Avenue, his current address at Cowie Road, his pick-up truck, could be considered information of a general nature. But the CHS provided information about Mr. Nascimento’s time in jail and previous involvement about dealing in “coke”. More significantly, the CHS described the firearm in very specific terms, “Gun is a MAC 10 or 11. The gun looks like an Uzi, has no handle or butt, and is a hand-held machine gun.” I am satisfied that the information provided by the CHS was timely because the CHS was aware of the previous address and the current address for Mr. Nascimento.

Was the informant credible?

[33] Information about the CHS, as expanded by the judicial summary, indicated that the CHS had a record and may have entered into a consideration agreement with the police. The Crown acknowledges that the credibility issue is the weakest of the three issues to be considered. The defence questions whether the CHS had a motive to fabricate. However, I note that this was not an anonymous tip from Crime Stoppers. In my view, a CHS seeking a consideration agreement with the police is less likely to make a false report than an anonymous tipster.

Was there corroboration?

[34] The police indicated to the justice of the peace that they conducted database searches on Nicholas Nascimento and provided his criminal record to the justice of the peace. They confirmed his former address as 337 French Avenue and his current address at 170 Cowie Road. They confirmed that he was the owner of a Dodge pick-up truck, license plate 2624TM, only slightly different from the number 6264TM provided by the CHS. Prior to the execution of the search warrant, they conducted surveillance of Mr. Nascimento, confirming his comings and goings from 170 Cowie Road, and confirming his identity by visual observation based on a photograph provided to the officers. I am satisfied that the police corroborated the CHS information.

Conclusion

[35] As noted earlier, I excised from the warrant the information about “Freeman on the land” when reviewing the justice of the peace decision to issue the search warrant. However, even when acknowledging some weaknesses in the area of credibility of the CHS, I am satisfied on balance that the information provided to the justice of the peace was compelling. The confidential human source provided a very specific description of the weapon, a MAC 10 machine pistol. As the officer said in Schedule “A” to his affidavit:

The MAC 10 is a formidable firearm with a rate of fire of approximately 1,000 rounds per minute, depending on the size of the round, as it comes in different capacities from 9 mm to .45 cal rounds.

Mr. Nascimento’s extensive criminal record indicating numerous incarcerations was also provided to the justice of the peace.

[36] I am satisfied that the justice of the peace acted judicially in issuing the search warrant. He received an unredacted version of the affidavit and appendices. Both Crown and defence acknowledged the importance of protecting confidential sources. I am satisfied that the judicial summary provided to defence provides additional information to assist in its submissions while continuing to protect the CHS. I conclude that the search warrant was validly issued and the evidence seized as a result of that search warrant may be admissible at trial.

Should the Evidence be Excluded Pursuant to s. 24 of the Charter?

[37] The defence submits that the search warrant was invalid and therefore contrary to Mr. Nascimento’s Charter rights and seeks to have the evidence excluded under s. 24(2). I have come to a different conclusion, but in the event that I am wrong, I will briefly review this issue, focusing on the steps suggested by the Supreme Court of Canada in R. v. Grant, https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html, [2009] 2 S.C.R. 353. The Court suggested that the factors that must be taken into account are as follows:

(i) the seriousness of the Charter infringed state conduct;

(ii) the impact of the breach on the Charter protected interest of the accused;

(iii) society’s interest in the adjudication on its merits.

[38] I am not satisfied that the material filed by the police was misleading in any material way. They proceeded under the authority of a presumptively valid warrant. However, if the search warrant were to be considered invalid, then Mr. Nascimento’s Charter protected interests would have been compromised. A person’s home attracts a high degree of privacy and an unauthorized search may lend itself to excluding evidence seized from a person’ residence. However, the evidence seized was reliable. It was real evidence, including a gun and ammunition. The evidence seized is crucial to the Crown’s prosecution of this case. Under all the circumstances here, the societal interest in the adjudication of these charges on their merits would be seriously undercut by excluding this reliable and essential evidence.

Disposition

[39] The application is dismissed.

MULLIGAN J.

Released: April 28, 2014