ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-40000194 and 193
DATE: 20140731
RE: Her Majesty the Queen v. Jason Burgher
BEFORE: K.L. Campbell J.
COUNSEL:
Stephen Sterling, for the Crown
David Bayliss, for the accused
HEARD: July 24-25, 2014
Pre-trial Ruling
The Procedure Pursuant to R. v. Garofoli
A. Overview
[1] The accused, Jason Burgher, currently faces two indictments alleging the commission of a variety of offences arising from his alleged illegal possession of two loaded firearms and significant quantities of cocaine and heroin. These offences are all alleged to have been committed in Toronto on January 8, 2012. The trial of this case is scheduled to commence on September 15, 2014.
[2] I have been appointed, pursuant to s. 551.1 of the Criminal Code, R.S.C. 1985, chap. C-46, as the case management judge for the purpose of the pre-trial proceedings in this case.
[3] The case against the accused turns largely upon the admissibility of the firearms and the drugs, which were seized by members of the Toronto Police Service during the execution of a search warrant at 375 Westmount Avenue, apartment 107, in Toronto. The accused seeks to quash this search warrant and exclude the evidence of the firearms and drugs under s. 24(2) of the Canadian Charter of Rights and Freedoms, on the basis that his constitutional rights under s. 8 of the Charter were violated by the police.
[4] The information to obtain (ITO) the search warrant was based, in large part, upon information the police received from a confidential informant. Earlier, the accused sought further disclosure in relation to the confidential informant so that he might be better able to attack the search warrant. In an earlier decision, I held that the accused had the necessary standing to challenge the search warrant, and I resolved the outstanding disclosure issues between the parties in relation to the confidential informant. See: R. v. Burgher, 2014 ONSC 3239.
[5] One of the disclosure issues resolved by this decision was whether the accused was entitled to a copy of the ITO that was redacted only as necessary to preserve the identity of the confidential informant. The accused had already been provided with a copy of the ITO that was both redacted and edited by the Crown. In the result, the Crown was ordered to provide the accused with a fresh copy of the original ITO that was redacted so as to protect the identity of the confidential informant, but without the editorialized editing found in the earlier disclosed version. See: R. v. Burgher, at paras. 79-85.
[6] In complying with this direction, the Crown has provided the accused with a heavily redacted version of the original ITO. The accused challenges the Crown’s redactions, arguing that they are excessive and unnecessary. As we embarked upon a hearing to try to finalize the content of the redacted version of the ITO to be disclosed to the accused, and the preparation of a judicial summary of the general nature of the content of the excised materials, it became apparent that the parties were far from agreed as to the appropriate procedure to be undertaken in following the various steps outlined by the Supreme Court of Canada in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1461. This ruling resolves that important procedural issue, so that the parties can govern themselves accordingly in the pending trial proceedings, subject of course to any further direction by the trial judge.
B. The Supreme Court Decision in R. v. Garofoli – The Six Steps
[7] In its landmark decision in R. v. Garofoli in 1990, Sopinka J., delivering the judgment of the majority of the Supreme Court of Canada, at p. 1461, provided the following outline of the procedural steps to be generally followed in cases where a wiretap authorization (or search warrant) is attacked by an accused. Sopinka J. noted that this procedural outline was neither exclusive nor exhaustive:
Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.
The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.
After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.
After the determination has been made in (3), the packet material should be provided to the accused.
If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.
If, however, the editing renders the authorization insupportable, 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.
C. The Positions of the Parties
[8] It is apparent that judicial summaries are contemplated at both steps two and six of the Garofoli procedure. The parties disagree as to the purpose and significance of these summaries.
[9] The accused argues that these summaries are designed to serve different purposes and should, accordingly, contain different content. More particularly, the accused argues that the judicial summary contemplated in step two is only a summary of the “general nature of the deletions” that the Crown has made to the original ITO for disclosure purposes. The purpose of this summary is to permit the accused to follow and participate in the redaction-review process, which is designed to result in a judicially finalized version of the redacted ITO (at step three) for disclosure purposes (at step four). Therefore, the accused argues, this step two judicial summary will be adequate if it provides the accused with simply a generic description of the types of information that have been excised from the ITO by the Crown. More importantly, this step two judicial summary, according to the accused, is not designed to form any part of the evidentiary record that may be considered in potential support of the search warrant.
[10] The accused argues that the judicial summary contemplated in step six is similarly of no evidentiary significance in determining the validity of the search warrant, but must be somewhat more detailed in its content as it must, if the Crown is to be permitted to rely upon the original, unredacted ITO in support of the search warrant, be detailed enough to make the accused “sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.”
[11] The Crown argues, on the other hand, that the judicial summaries in steps two and six are, essentially, the same. At each step, the purpose of the judicial summary is to provide disclosure to the accused as to the nature of the redacted material while, at the same time, maintaining the secrecy of the identity of the confidential informant. Further, the Crown contends that the judicial summary that is created in step two is substantively admissible at step five, in that the judicial summary forms part of the record upon which the Crown may seek to support the search warrant “on the basis of the material as edited.”
[12] It is apparent that the parties also disagree on the nature and application of steps five and six of Garofoli.
[13] The accused argues that at the conclusion of step four, when the judicially finalized redacted ITO is provided to the accused, the Crown must “elect” whether to try to support the issuance of the search warrant on the basis of: (1) the judicially finalized redacted ITO disclosed to the accused in step four; or (2) the original, unredacted ITO, through resort to an application under step six. The accused argues that these are, in effect, the two alternatives that are open to the Crown, not successive steps.
[14] The Crown, on the other hand, argues that steps five and six are successive steps that may be taken sequentially in seeking to uphold the impugned search warrant. The Crown may, at step five, seek to uphold the search warrant on the basis of the redacted ITO, and may, at step six, seek to uphold the search warrant on the basis of the original, unredacted ITO. The Crown argues that it may employ steps five and six sequentially, or cumulatively, as the trial judge may direct, but the Crown may, one way or another, take both of these steps.
D. Analysis
1. The Judicial Summaries at Steps Two and Six
[15] The judicial summaries in steps two and six may be somewhat different in their substantive content for the very practical reason that they are created at different stages of the Garofoli procedure and may, therefore, be summarizing different excised information.
[16] In step two, the judicial summary is created to ensure that the accused is aware of the “general nature of the deletions” that the Crown made to the ITO in seeking to protect the anonymity of the confidential informant. However, according to step three, it is for the trial judge to make the “final determination” as to this “editing” process, keeping in mind that this “editing” must be “kept to a minimum.” The only deletions that should be judicially approved are those that are necessary to properly protect the identity of the confidential informant. Accordingly, at the conclusion of step three, the judicially-finalized version of the redacted ITO for purposes of disclosure to the accused may well contain fewer redactions than the Crown-created version of the redacted ITO at step two.
[17] In the result, the judicial summary created at step six of the Garofoli process, providing a summary of the “nature of the excised material” may, of necessity, have to be somewhat different than the judicial summary created at step two, as the excised material to be summarized at each step may, in fact, be different.
[18] That is not to say that the judicial summaries at steps two and six will always be different. Indeed, they may contain precisely the same content. For example, if there is no issue between the parties as to the propriety of the manner in which the Crown redacted the ITO, or if the trial judge approves without alteration the Crown-created version of the redacted ITO, then the judicial summary at step two may prove to be exactly the same as the judicial summary at step six. In both cases, the judicial summary will seek to summarize the nature of the same excised material, without disclosing the identity of the confidential informant. See: R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at para. 96.
[19] There is another reason why the judicial summaries contemplated at steps two and six of Garofoli may be different. As the language used by Sopinka J. in Garofoli suggests, the judicial summary contemplated in step two may be more “general” than the summary contemplated in step six. This is perhaps not surprising given that the only consequence of the process at step two is disclosure of a summary that leads (at step three) to a judicially-finalized redacted ITO. It is only subsequently, at step six, that the practical consequences of the judicial summary become more significant. It is only at step six that providing an adequate judicial summary to the accused permits the Crown to rely upon the contents of the original, unredacted ITO in seeking to uphold the validity of the search warrant. Accordingly, it may well be that, in practice, the judicial summary for purposes of step six is somewhat more detailed than the more generic judicial summary contemplated by step two.
2. The Purpose of the Judicial Summaries – Fair Process, Not Evidence
[20] It is important to appreciate, however, that regardless of whether the judicial summary in question is created at step two or step six of Garofoli, the purpose of the summary is the same. It is created for the purpose of permitting the accused to participate as fully as possible in the processes contemplated at those different procedural steps. At step two, the judicial summary is provided to permit the accused to participate in the “editing” process that leads, at step three, to the judicially-finalized version of the redacted ITO that is disclosed to the accused at step four. At step six, the judicial summary is provided to permit the accused to challenge, by means of evidence or argument, the excised materials in furtherance of the accused’s challenge to the sufficiency of the original, unredacted ITO that was used to obtain the impugned search warrant.
[21] This explains why these judicial summaries are not part of the evidentiary record upon which the sufficiency of the ITO is determined at either step five or step six of the Garofoli procedure. These judicial summaries are not created to serve as evidence. Rather, they are created to serve as a substitute for full disclosure to the accused, in order to allow the accused a greater and more meaningful participation in the process. In other words, they are a means of ensuring the adoption of a fair process by means of summarizing information that has not been disclosed.
[22] As the Supreme Court in Garofoli stated, the judicial summary contemplated by step two is created in cases where the trial judge is of the view that defence counsel “will not be able to appreciate the nature of the deletions” that have been made to the ITO by the Crown. Accordingly, the purpose of this judicial summary is to permit defence counsel to make meaningful submi