The Application

[1] On Monday, February 6, 2012, members of the Gun and Gang Task Force were granted a Criminal Code and Controlled Drugs and Substances Act search warrant for 1409-45 Wynford Heights Crescent (“the apartment”) and a 1999 black Chevrolet Z24, license plate BKCX 607 (“the vehicle”). The warrant was valid from 1:25 p.m. to 11:59 p.m. on February 6, 2012.

[2] Calvin Prosser brings this application seeking the exclusion of evidence pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms. He alleges that his section 8 Charter rights were infringed when the police executed the search warrants on the apartment where he was residing with his mother and grandmother, and upon the vehicle registered in the name of the applicant’s father at a different address. The police were searching for a firearm and drugs, as well as ammunition and drug paraphernalia.

[3] The information in the Information to Obtain (“the ITO”) largely came from two confidential informants involved in the drug culture who provided recent personal information about purchasing cocaine from a drug dealer known on the street as “Ghost” who trafficked at times from a vehicle and had a firearm with him for protection. “Ghost” was subsequently identified as Mr. Prosser as a result of police data searches and the identification of CI#1 from a police photograph.

[4] On February 6, 2012 the police obtained four separate warrants to search the apartment and the vehicle. After the warrants were authorized, the police were conducting surveillance in anticipation of executing the warrants outside the apartment building. Mr. Prosser was observed outside 45 Wynford Heights Crescent The police followed Mr. Prosser into the apartment building, into the elevator and to the 14th floor where he was placed under arrest for possession of a firearm and possession of cocaine for the purpose of trafficking. The police then executed the search warrant on the apartment at 6:52 p.m.

[5] In the apartment, the police located a loaded .25 calibre Lorcin semi-automatic pistol with a detachable box cartridge magazine, various ammunition, 81.78 gm of separately packaged cocaine, $3680.00 in cash and various drug paraphernalia. Nothing of interest of was located in the vehicle.

[6] The applicant argues that the redacted version of the ITO with the excisions and amplifications is insufficient because it does not provide sufficient information for counsel to make full answer and defence and also does not disclose reasonable and probable grounds to believe that the police would find drugs and a firearm in the apartment or in the vehicle. The defence argues that applying the criteria in R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, aff’g (1986), 1986 113 (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.), the requirement of credible, compelling evidence that has been corroborated by the two confidential informants has not been met. Therefore, the search of the apartment was in breach of section 8 of the Charter and the defence argues that this evidence should be excluded under section 24(2) as admitting it would bring the administration of justice into disrepute.

The Garofoli Step 6 Procedure

[7] The Crown agrees that I should proceed directly to a step 6 analysis in accordance with R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1461, as adapted by R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, to apply to confidential informants. In R. v. Garofoli, Sopinka J. described the process p. 1461:

[T]he 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] In R. v. Learning, at paras. 100-109, Code J. concluded that the step 6 procedure outlined in R. v. 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. R. v. Learning permits the reviewing judge to consider as much of the unredacted ITO as required to support the authorization of the search warrant. At para. 107, Justice Code confirms that the dilemma of the competing demands of R. v. Debot and R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281, may be met by adapting the Garofoli procedure to circumstances such as those in this case.

[9] The Ontario Court of Appeal’s decision in R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at paras. 54-59, endorsed Justice Code’s decision in R. v. Learning using the adapted Garofoli step 6 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.

[10] Sopinka J. summarized the principles for dealing with informant material in a wiretap affidavit (now applied by extension to an ITO with confidential informants) in R. v. Garofoli, at pp. 1456-57:

(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;

(iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information.

[11] The step 6 procedure must balance the interests of the accused to make full answer and defence by testing and questioning the reliability of an informant’s evidence with the confidential informant’s need for anonymity.

Step 6 procedure followed in this case

[12] The first informant was an untested new confidential informant. DC Binning was the handler of CI#1 and provided the information from CI#1 to DC Fougere, who was designated as the affiant to begin to prepare the ITO and conduct the relevant searches. By chance, DC Fougere had a discussion with DC Hind and explained that he was preparing an ITO investigating a drug dealer known as “Ghost” who carried a firearm. DC Hind was the handler of CI#2 and confirmed that he had received information from CI#2 about a drug dealer known as “Ghost” who carried a firearm. DC Hind then contacted CI#2 to get further information to provide to DC Fougere.

[13] The defence argues:

• that the initial redacted ITO is virtually devoid of information and that counsel is unable with the limited disclosed information to make full answer and defence;

• that there is no credible evidence linking drugs or a gun to 45 Wynford Heights Crescent, or to the apartment subject to the search warrants;

• that CI#1 was an untested informant and was therefore unreliable;

• that the ITO failed to disclose the existence and details of the criminal records of CI#1 and perhaps CI#2;

• that the police did not take adequate steps to corroborate the information provided by way of conducting surveillance or following up on the phone number provided by CI#1 before applying for a search warrant based almost solely on the information received from the two informants.

[14] The Crown provided me with a draft judicial summary of the redacted portion of the Information to Obtain, along with the unredacted Information to Obtain. The first version of the proposed judicial summary provided inadequate information and was overly limiting in approach.

[15] The defence sought clarification and details of the redacted materials on a line by line basis. After submissions, and several drafts, a Final Judicial Summary marked Exhibit E was prepared, taking into account my comments to counsel and submissions made by the defence.

[16] The major concern of defence counsel was that there was no disclosure in the redacted ITO of evidence from the informants linking either drugs or a firearm to 45 Wynford Heights Crescent, and in particular apt. 1409. In response to this valid concern, in a discussion with the Crown, not in the presence of the defence counsel and the accused, an addendum was prepared after the Crown discussed the issue of protecting the identity of the confidential informants with the police handlers. The addendum is attached to the Judicial Summary and confirms:

• CI#1 and/or CI#2 provided timed, personal information that Calvin Prosser is in possession of a firearm at the address of 45 Wynford Heights.

• CI#1 and/or CI#2 provided timed, personal information that Calvin Prosser is in possession of illicit substances at the address of 45 Wynford Heights.

[17] These additions to the Judicial Summary confirm the presence of a firearm and drugs at 45 Wynford Heights Crescent, but not in the apartment where Mr. Prosser was residing with his mother and grandmother.

[18] Defence counsel continued to assert that to obtain a warrant to search an apartment required evidence from the informants or other sources linking the drugs and a gun to not just the address of the apartment building, but to the apartment itself.

[19] The defence challenged the relevance and potential prejudicial aspects of certain evidence contained in the ITO. Crown counsel agreed to delete the references found on pages 7 and 8 of the ITO to a charge of threatening to kill a former girlfriend that was resolved by a peace bond. She also agreed to delete the reference to the police records finding 17 previous hits in a CPIC search, when the evidence is clear that Mr. Prosser has no criminal record (page 7).

[20] These portions of the ITO were excised as potentially prejudicial and unnecessary. The following explanatory statement was left after excising reference to these two issues from para 7 i) and 7) iii and 7) iv:

As a result of prior criminal charge in 2010 that was resolved by a 820 peace bond, the police had a photograph of Mr. Prosser that was shown to CI#1 for the purposes of identification of Mr. Prosser as “Ghost”. This photograph was also shown to the superintendent of the apartment building 45 Wynford Heights Cres. to identify Mr. Prosser, and to confirm that Mr. Prosser was residing in apartment 1409, 45 Wynford Heights Crescent with his mother and grandmother.

The police records contained a description of Mr. Prosser as “a male white, 6’1”, 150 lbs, and blond hair” This description contained in the police records is also relevant as it confirms the description given by the confidential informants of the person they refer to as “Ghost”.

[21] The Crown explained the relevance of this information contained in the ITO was not to suggest that Mr. Prosser was a person of bad character as a result of the 17 hits, as the ITO made it clear that he had no criminal record, but rather to explain how the police were able to identify Mr. Prosser as the gun-carrying drug dealer known as “Ghost” from the information given by CI#1 and CI#2.

[22] In my view, these concessions by the Crown do not indicate that the deletions were prejudicial to the point of influencing the issuing justice of the peace, as it was clear in the ITO that Mr. Prosser had no criminal record, and that the charge related to a former girlfriend had been resolved by a peace bond.

[23] I conclude that the Final Judicial Summary, with the addendum as well as the excisions and amplifications in the ITO, supplemented by the permitted cross-examination as outlined below, provides sufficient information to defence counsel to enable him to make full answer and defence on behalf of his client, without compromising the identity of the confidential sources.

Permitted Cross-Examination

[24] Defence counsel sought the right to question the affiant Detective Constable Fougere, who prepared and swore the ITO for the search warrants in three discrete areas relevant to the issues of credibility, reliability and corroboration of these confidential informants. The Crown, quite fairly, did not oppose these specific requests.

[25] I granted leave to defence counsel to question in the following areas:

• Efforts made to corroborate the evidence of the informants;

• Why the criminal records of the CIs, if any, were left out of the ITO;

• The basis for the belief of the affiant on pages 14 to 15 of the ITO that drugs or a gun would be found in the apartment, without referring to the evidence, but with reference to his experience as a police officer.

[26] Defence counsel also sought leave to question DC Hind, who provided information to the affiant with respect to CI#2. The scope of the anticipated cross-examination was to ascertain whether the information provided by CI#2 was rumour or first-hand information, and why no efforts were made to act on the information obtained by DC Hind with respect to the individual identified by CI#2 as “Ghost”. Defence counsel did not proceed with his application to cross-examine DC Billings, the handler of CI#1.

[27] I granted leave to defence counsel to cross-examine in these discrete areas, subject to the right of the Crown to object to any specific question that arose that might narrow the pool of potential informants.

Cross-examination of DC Fougere

Adequacy of police investigation of corroboration

[28] Defence counsel argued that the police did not take sufficient steps to corroborate the evidence of the informants. DC Fougere confirmed that the police independently corroborated the evidence of both informants as to the shooting. The police corroborated where Mr. Prosser was living with the apartment superintendent, and corroborated the evidence of Mr. Prosser’s identity with CI#1 and with the apartment superintendent. The officers also corroborated the evidence of the informants as to the vehicle used by Mr. Prosser to conduct business, and in fact saw the vehicle parked in the space allocated for the apartment.

[29] DC Fougere confirmed that before the search warrant was obtained, no police officer had ever seen Mr. Prosser in person, and had only seen Mr. Prosser’s photograph. The police were able to identify Mr. Prosser through a sequence of events I have outlined, but DC Fougere acknowledged that surveillance to confirm observations of Mr. Prosser at the apartment was not conducted.

[30] The affiant also acknowledged in cross-examination that he had not sought a General Warrant, had not sought to place a tracking device in the vehicle and did not seek the right to put a room probe or surveillance camera in the apartment to gather surveillance information. He also acknowledged that he had not checked the cell phone records for the phone number provided by CI#1.

[31] Both CI#1 and 2 confirmed that “Ghost” had been shot and provided a time frame for the shooting. DC Binning was able to locate an occurrence report of a male shot in the area of Woodbine and Danforth Avenue in the timeframe provided by the informants to confirm this information. The victim of the shooting was Mr. Prosser, born 1993.04.07. Once the police had the name of the person who had been shot, the police took steps to ascertain whether the person who had been shot, was one and the same person known on the street as “Ghost”. The police were able to obtain a RICI photo of Mr. Prosser from his 2010 arrest. This photo was in turn shown to CI#1 who confirmed that the individual in the photo was the person he knew as “Ghost”. The affiant acknowledged that the photo was not shown to CI#2.

[32] The superintendent at the apartment block at 45 Wynford Heights Crescent confirmed with the police from the photograph that Mr. Prosser stayed in the apartment with his mother and grandmother, and that he parked the vehicle in the designated underground parking place for the apartment. The officer confirmed on that date when he spoke to the superintendent that the vehicle was in the underground parking space assigned to the apartment. The officer went to the apartment outside the apartment door and heard a male and a female voice within.

Failure to deal with criminal record, if any, of CI#1

[33] DC Fougere acknowledged that in preparing the ITO he failed to inquire of DC Binning whether CI#1 had a criminal record. He confirmed that that was a mistake on his part. With respect to CI#2, the affiant confirmed in cross-examination that a criminal record was not disclosed to the issuing justice of the peace.

[34] I accept the evidence of DC Fougere that he genuinely forgot to make this relevant inquiry with respect to CI#1. This failure was sloppy and unacceptable, but was not made in bad faith, or in any attempt to bolster CI#1’s credibility. I note that CI#1 was advised that if he provided false information, he could be charged with perjury.

[35] CI#2 had been used successfully in the past on two occasions, and his motivation for providing accurate information was monetary. Whether or not CI#2 had a criminal record or any convictions for crimes of deceit was disclosed to the issuing justice. Although not disclosed in the ITO, the Crown confirmed during argument that CI#2 was a carded informant.

Cross-examination as to the reasonable belief of affiant

[36] In the section for grounds to believe that items will be in the place to be searched, DC Fougere was cross-examined as to his statement in the ITO that he was “confident that evidence pertaining to possession of illegal drugs and firearms are present inside the apartment”. The affiant was cross-examined specifically on paragraphs 5 and 6 under this section. In the ITO he stated his belief that the items of interest would be found in the apartment as “it would stand to reason that when the vehicle is parked in the underground and unattended, Prosser would keep his valuables (ie drugs, money and firearms) and his cell phone with him” in case of a break in. The defence challenged this assertion as unsubstantiated, exaggerated puffery.

[37] DC Fougere testified in cross-examination about these assertions in the ITO. Based upon his personal experience preparing and executing over 100 search warrants over 13 years, in the majority of cases drugs and a firearm were found in the person’s residence and that drug dealers keep these items close to where they are physically located. In support of this belief and based upon his experience, DC Fougere testified it was reasonable to believe that the firearm and drugs would be located in the vehicle with Mr. Prosser when he was in the vehicle conducting his drug business based upon the evidence from the informants that Ghost at times conducted his drug transactions from his vehicle while armed. When the vehicle was parked underground at 45 Wynford Heights, the affiant stated that he believed that these items would be located in the apartment where Mr. Prosser was living when Mr. Prosser was in the apartment. In his experience a drug dealer would not leave drugs and guns unattended in a vehicle, and these important items would accompany him.

[38] DC Fougere testified that warrants were requested for both the vehicle and for the apartment, as he did not know when or where Mr. Prosser would be when he was arrested for possession of drugs and a firearm. Dependent upon the location of arrest, the likelihood would be enhanced that the items being sought were in either the vehicle or the apartment, but close at hand wherever Mr. Prosser was located at the time of his arrest.

[39] Mr. Prosser was arrested on the 14th floor of 45 Wynford Heights Crescent outside the apartment, and the gun and drugs were located in the apartment in the bedroom of Mr. Prosser.

[40] In my view these assertions by the affiant are reasonable and make sense and are relevant in assessing the subjective component of reasonable belief as to whether there were reasonable and probable grounds to believe that drugs and a firearm would be found in the apartment or the vehicle.

Cross-examination of DC Hind

[41] DC Hind was cross-examined very briefly.

[42] He confirmed that he took no steps after receiving the information about a drug dealer named “Ghost”, as there was no information as to identity.

[43] Further, DC Hind testified that CI#2 did not provide any information linking “Ghost’s” activity to any neighborhood. This evidence was in direct contradiction to the information in the Judicial Summary amplifying the redacted ITO that “CI#2 provided timely information regarding “Ghost” living in an apartment building in the Wynford Drive area.”

[44] This contradiction was pointed out by defence counsel. DC Fougere was not questioned about this issue as he testified before DC Hind. I allowed the Crown to get in touch with both officers to review their notes to determine whether DC Hind had forgotten about information being conveyed to DC Fougere about the neighourhood, or whether there was a misrepresentation in the ITO prepared by DC Fougere, which would obviously be a serious matter.

[45] The officers returned with their notebooks and counsel cooperated to determine that DC Hind had in fact forgotten the information he had conveyed to the affiant about the neighborhood contained in the ITO, as this information was reflected in both officers’ notes. Defence counsel very fairly conceded that the information about neighborhood had been conveyed by DC Hind to the affiant.

The test for setting aside the issuance of the warrant

[46] 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.

[47] 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.

[48] Deference has to be shown for the authorizing justice of the peace, as confirmed by LeBel J. in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51:

The reviewing judge does not stand in the same place and function as the authorizing judge. He or she does not conduct a rehearing of the application for the wiretap. This is the starting place for any reviewing judge, as our Court stated in Garofoli, supra, 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. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[49] The Supreme Court of Canada in R. v. Morelli confirms the issue for me as 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 the 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.

The meaning of the test for reasonable grounds

[50] The issue on a review of the 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, 299 D.L.R. (4th) 432, at para. 23, aff’d 2008 SCC 65, [2008] 3 S.C.R. 451.

[51] The obligation on the affiant on an ex parte application is to provide full and frank disclosure of material facts: R. v. Araujo, at para. 46.

[52] Carelessness on the part of the affiant in preparing the ITO is not sufficient to undermine the validity of the search warrant. There must be an intentionally false statement or omission. See R. v. Villa, 1988 CarswellOnt 1641 (H.C.J.), at para 14.

[53] Even if there is an intentional fraud, omission or misrepresentation established by the applicant, this does not automatically vitiate the warrant. As Justice Sopinka stated in R. v. Garofoli, at p. 1452, “fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge”. These principles were confirmed in R. v. Pires, at para. 8.

[54] Reasonable grounds have both a subjective, as well as an objective, element.

[55] The subjective test is met when the affiant honestly believes that the suspect has committed an offence, and that evidence of the offence will be found in the place to be searched. The objective aspect of reasonable grounds is on a continuum of standards of proof. It may be described as when credibly based probability replaces suspicion. It is less than proof on a balance of probabilities, but more than a guess or a hunch based upon experience or suspicion. See E.G. Ewaschuk, Criminal Pleadings & Practice in Canada, 2nd ed., loose-leaf (March 2013 Rel.) (Toronto: Canada Law Book, 2013), vol. 1, at para. 3:1090, and the cases cited therein.

Assessment of the evidence of the informants applying the Debot criteria

[56] I must assess whether the information provided in this case from the two confidential informants, supplemented by the police corroboration, provide reasonable grounds for the issuance of a search warrant, assessing both the subjective and the objective grounds. I must assess the confidential informants’ credibility, whether the information provided was compelling and reliable and whether the information was corroborated by the police investigation.

[57] As confirmed in R. v. Debot, at p. 1168, weakness in one area may, to some extent, be compensated for 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 reasonable grounds.

Evidence of CI#1 applying the Debot criteria

[58] Defence counsel points out that CI#1 is an untested informant with no prior track record for reliability. Further, defence counsel points out that the affiant failed to disclose information about the criminal record of CI#1 to the justice of the peace, and that this was a mistake.

[59] CI#1 provided evidence that the source has purchased drugs from “Ghost” and has personal first-hand knowledge of “Ghost’s” possession of a firearm, including circumstances surrounding the observation of a firearm. “Ghost” is known to sell from a car in the Broadview Danforth area. The source has had contact with “Ghost” at 45 Wynford Heights, and had personal first-hand information about Ghost’s home address at 45 Wynford Heights and living arrangements. This personal knowledge included information about parking the vehicle. CI#1 gave a description of “Ghost”, described the vehicle and conveyed Mr. Prosser’s cell phone number. CI#1 provided significant detailed first-hand information about the firearm as well as Mr. Prosser’s methodology as a drug dealer. I find that the details contained in the unredacted version of the ITO are detailed first-hand observations and are both credible and compelling. There are no conclusive statements that are mere rumours.

[60] CI#1 confirmed that “Ghost” was recently shot sometime in the summer of 2011.

[61] The most recent police contact with Mr. Prosser according to the ITO is in relation to a shooting incident on September 15, 2011, when Mr. Prosser was shot in the chest by two unknown black males in Woodbine Avenue and Merrill Avenue in Toronto. The search revealed that Mr. Prosser sustained non-life threatening injuries, and still has bullet fragments located in his torso. The police occurrence report indicates that Mr. Prosser refused to cooperate and that no charges have been laid. This information confirms aspects of the evidence provided by both informants.

[62] DC Binning confirmed that CI#1 identified the photograph of Mr. Prosser taken at the time of the police investigation in 2010 as being the person he referred to as “Ghost”. Defence counsel points out that the photograph was not shown to CI#2 and the only evidence identifying Mr. Prosser as “Ghost” is by an untested first time informant.

[63] Defence counsel argues that the police failed to carry out adequate surveillance to confirm the information of CI#1.

[64] On February 6, 2012 a police officer met with the superintendent of 45 Wynford Heights Crescent, who identified Mr. Prosser from the police photograph as a person living with his grandmother and mother in apartment 1409. He also confirmed the vehicle driven by Mr. Prosser which was usually parked in the underground parking lot of the building. He also confirmed that Mr. Prosser was seen walking a pug dog in the vicinity of the apartment block. The evidence of the superintendent corroborates aspects of the evidence of CI#1 and CI#2.

[65] The police observed the vehicle parked in the underground parking lot that day, and when standing outside the apartment heard a male and a female voice coming from within.

[66] There are weaknesses with CI#1 with respect to established credibility as this person is an untested informant. However, the affiant was not relying solely on the information from CI#1. As pointed out in R. v. Debot, 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 reasonable grounds.

[67] In this case, there are two informants. CI#2 was carded and had proved to be reliable on two prior occasions. The evidence of CI#1 was both compelling and corroborated by the police as well as by evidence of CI#2. The information from each source corroborates much of the information from the other informant in significant detail.

[68] Had the police been relying solely on the information provided by CI#1 it may have been prudent to conduct further surveillance. However, I note that the essentials of CI#1’s information were corroborated, although very efficiently and easily with the assistance of the apartment superintendent. As well, the police observed the vehicle matching the description given by the informants in the underground parking spot allocated to the apartment.

[69] The affiant was a credible witness. He was candid and did not exaggerate. He acknowledged that he had made an error in failing to inquire about CI#1’s criminal record, which is not an insignificant error, but I find there was no male fides. The investigation and arrest moved quickly. CI#1 was warned that he may be charged with perjury for providing false information. The circumstances for providing the information were disclosed in the unredacted ITO. For CI#2 the evidence of the presence or absence of a criminal record was obliquely canvassed in the ITO: “Whether or not the second CI has a criminal record or not and crimes for deceit was noted”.

[70] I find that considering all of the circumstances, that the information provided by CI#1 was credible, compelling and corroborated.

[71] As outlined previously, I conclude that the failure to deal with whether or not CI#1 had a criminal record by the affiant was a mistake and oversight, not an attempt to mislead. The Crown expressed concern about providing information about whether CI#1 or 2 had criminal records because of its potential to to narrow the pool.

[72] The Court of Appeal decision in R. v. Rocha decided in October 2012, after this investigation, is very critical of failure to file the criminal record before the issuing justice. I understand that post-Rocha it is standard procedure to provide a full copy of an informant’s criminal record, if any, to the issuing justice to enable him or her to assess credibility. This is good practice, but these documents must be zealously protected, with the names properly redacted and sealed to ensure informant confidentiality is respected.

[73] Providing details of a criminal record, if any, to the defence can significantly narrow the pool of potential confidential informants. The police handlers are often very cautious about divulging any details of a record. In this case, defence counsel to his credit stopped certain discussions about criminal records, if any, during the submissions, as there was a concern about narrowing the pool and potentially compromising the identity of the confidential informant.

[74] The Crown agreed that the consideration of the criminal record(s), if any, could amplify the record by me examining the contents, if any, of sealed exhibit #3. I have done so and conclude that the criminal record/s, if any, of CI#1 and/or CI# 2 do not impact significantly in a negative way on the credibility of the confidential informants.

Evidence of CI#2 applying the Debot criteria

[75] CI#2 is a carded informant who has provided reliable information on two occasions in the past that has led to the arrest and conviction of two individuals. As disclosed, this source was providing information for monetary gain.

[76] CI#2 confirmed that Mr. Prosser was a dealer in cocaine and crack cocaine who was in a possession of a firearm. The source provided personal, timely and detailed information regarding observations of Mr. Prosser as a drug dealer and information about Mr. Prosser with a firearm. There are specific details in the unredacted version that are compelling. CI#2 provided timely information regarding “Ghost” living in an apartment building in the vicinity of 45 Wynford Heights Crescent.

[77] Many of the details about trafficking in drugs and the possession of the firearm in the unredacted information given by each source confirm the information provided by the other. Both CI#1 and CI#2 knew that “Ghost” had been shot.

[78] I reiterate my observations and conclusions outlined above with respect to the issue of criminal records, if any.

[79] I reiterate my observations about police corroboration of the information provided by the informants as to identity, where Mr. Prosser lived, his living arrangements, and the vehicle he used to conduct business.

[80] I find that considering all of the circumstances, that the information provided by CI#2 was credible, compelling and corroborated.

No evidence linking the firearm and drugs to the apartment

[81] 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 and drugs in the apartment or vehicle. The defence argues that applying the criteria in R. v. Debot, 1989 13 (SCC), [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 the 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.

[82] For the reasons outlined above, I disagree with the arguments of defence counsel. In particular he argued that to underpin a search warrant of the apartment, that there was a requirement to have information provided by CI#1 and/or CI# 2 linking the firearm and drugs to the actual apartment, not just to the apartment block.

[83] Counsel were not able to provide me with any case that requires that degree of specificity of the underlying information to justify a search warrant. I conclude in the facts of this case, that providing credible information linking the items being sought to an apartment building, although not to a specific apartment number where a suspect lives, is sufficient proximity to underpin reasonable and probable grounds that items will be found in the apartment to grant a search warrant to search a suspect’s apartment.

[84] It must be remembered that the degree of detail of the tip is one factor to be taken into account in assessing its reliability. It does not impose invariable rules that an informant must always provide a particular detail (such as an apartment number) in order to be considered reliable. For example, in R. v. Gobire, 2013 ONSC 2921, 2013 CarswellOnt 6274, an informer identified the accused as being in possession of specific type of handgun. This tip was sufficiently compelling in detail to authorize the issuance of a warrant for the accused’s apartment, notwithstanding that the informer had not identified the specific apartment, or even the apartment building. The firearm was linked to the person, not specifically to his apartment. In my view the same principles of compelling evidence by CI#1 and CI#2 about the gun applies in the facts of this case.

Conclusions with respect to the section 8 Charter arguments

[85] By way of summary, I conclude in this case I am satisfied that the informants’ information was credible. Each informant was able to provide specific, detailed information based upon firsthand experience and observations.

[86] I am also satisfied that the informants were reliable and compelling. Admittedly both informants were involved in the drug culture and may or may not have had criminal records. CI#2 was a carded informant with a track record.

[87] Finally, I am satisfied that the informants’ information was reasonably corroborated by the police investigation. The police could have done more, but the essentials of the identity of Mr. Prosser, the shooting incident, the living arrangement and vehicle used by Mr. Prosser were all corroborated.

[88] For these reasons I conclude that there was no section 8 Charter breach.

Section 24(2) Charter Analysis

[89] If I am wrong in my conclusion that there was no section 8 Charter breach, I will briefly outline a section 24(2) analysis.

[90] The principles and framework for excluding evidence under s. 24(2) of the Charter were revised in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The three part test emphasizes the need to consider the broad social implications of admitting or excluding evidence obtained by way of a Charter breach on the administration of justice and clarifies what factors should be taken into consideration when doing so. The Supreme Court in Grant described the test at para. 71:

A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

The Seriousness of the Charter-Infringing State Conduct

[91] The objective of the first factor in Grant is to preserve public confidence in and ensure state adherence to the rule of law. Paragraph 72 of R. v. Grant considers whether the police conduct is “severe” or “deliberate,” which is relevant to whether “courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct”.

[92] In this case, I have concluded that there is no evidence of bad faith by the police. In February, 2012 it was not a prerequisite to disclose the criminal record in the ITO as now appears to be the case as clarified in the R. v. Rocha decision. Prior to R. v. Rocha the police were concerned that details in a criminal record could be used to identify the accused, contrary to the principles respecting informer confidentiality for their protection, and simply did not disclose the criminal record to the issuing justice. What appears now to be the law, post-Rocha, is that the criminal record if any must be shown to the issuing justice, to aid him or her in assessing the credibility of a confidential informant. This does not mean that the criminal record will be disclosed to defence counsel, as providing details of the record would have a dangerous effect of narrowing the pool.

[93] I have concluded that the affiant was a credible, honest witness who did not in any way attempt to mislead the issuing justice. Any excisions to the ITO were minor and the ITO was a fair summary of the evidence available.

[94] I conclude that if there was a breach, it was a technical one that was not serious.

The Impact of the Breach on the Charter-Protected Interests of the Accused

[95] It is important to determine not only how the right was breached, but what impact the violation had on the Charter-protected interests of the accused. This is explained in para. 76 of Grant:

This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

[96] The crown concedes that the intrusive nature of executing a search warrant particularly in a person’s home is a profound intrusion on Charter-protected interests. Mr. Prosser lived with his mother and grandmother, and their protected Charter rights were also affected. I note that the issuing justice provided a narrow time period in which to execute the warrant, to midnight on February 6, 2011, and did not grant the night entry as necessary or reasonable in the circumstances. The warrant was in fact executed shortly before 7 pm, immediately after Mr. Prosser’s arrest, using the key obtained from Mr. Prosser to open the door. This was not a case of a frightening “dynamic entry” in the middle of the night.

Society’s Interest in the Adjudication of the Case on its Merits

[97] The third question this Court must assess and balance is whether the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits.

[98] As the Supreme Court observed in R. v. Grant, at para. 81, the “exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.”

[99] Many cases confirm the important public interest in pursuing drug and gun related offences. R. v. Greffe, 1990 143 (SCC), [1990] 1 S.C.R. 755; R. v. Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297; R. v. Nguyen [2005] O.J. No. 1948 (S.C.J.); R. v. Brown, 2009 ONCA 563, 251 O.A.C. 264, at para. 33; R. v. Brown, [2007] O.J. No. 5659 (S.C.J.), at para. 20; R. v. Smickle, 2013 ONCA 678, 304 C.C.C. (3d) 371, at paras. 28-30. If the evidence of the drugs and firearm is excluded, then the Crown would have no case. To exclude this essential, reliable evidence would be contrary to the public interest.

[100] In all of the circumstances, weighing the three factors in R. v. Grant, if I had concluded there was a Charter breach (which was not my conclusion), I would have concluded that the drugs, and other drug related items found, as well as the firearm and ammunition should be admitted into evidence. To do so would not bring the administration of justice into disrepute. To the contrary, on the facts of this case to exclude the drugs and the firearm as admissible evidence would undermine the bona fide, although not perfect, efforts of the police in the investigation of crime, and would bring the administration of justice into disrepute.

[101] I thank counsel for their professionalism and assistance.

J. Wilson J.

Released: May 27, 2014

COURT FILE NO.: 13-70000425-0000

DATE: 20140527

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Crown / Respondent

– and –

CALVIN PROSSER

Accused /Applicant

RULING ON STEP 6 GAROFOLI APPLICATION

J. Wilson J.

Released: May 27, 2014

Her Majesty the Queen v. Calvin Prosser, 2014 ONSC 2645

Case Summary

The Application

The Garofoli Step 6 Procedure

Step 6 procedure followed in this case

Permitted Cross-Examination

Cross-examination of DC Fougere

Cross-examination of DC Hind

The test for setting aside the issuance of the warrant

The meaning of the test for reasonable grounds

Assessment of the evidence of the informants applying the Debot criteria

Evidence of CI#1 applying the Debot criteria

Evidence of CI#2 applying the Debot criteria

No evidence linking the firearm and drugs to the apartment

Conclusions with respect to the section 8 Charter arguments

Section 24(2) Charter Analysis

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 3

Legislation 5