ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. Lindsay, 2015 ONSC 1369

COURT FILE NO.: 1987/13

DATE: 2015/03/03

BETWEEN:

HER MAJESTY THE QUEEN

Darren Anger, for the respondent

Respondent

and -

IAN LINDSAY

V. J. Singh, for the applicant/accused

Applicant

HEARD: June 26, 27, 30, July 2, 2014, February 9-12, 2015

J.W. Quinn J.: ─

I. INTRODUCTION

[1] This is a pre-trial application by Ian Lindsay (“the accused”) alleging a breach of his rights under s. 8 (unreasonable search and seizure) of the Canadian Charter of Rights and Freedoms (“Charter”) and seeking relief pursuant to s. 24(2) (exclusion of evidence). Within that application, the accused seeks leave to cross-examine the affiant of the Information to Obtain which led to the issuance of a search warrant.

[2] In the period February-July of 2012, police received multiple reports from five confidential informants about the accused trafficking in crack cocaine and, as a result, conducted physical surveillance.

[3] A Controlled Drugs and Substances Act search warrant was issued on July 17, 2012 by a Justice of the Peace allowing police to search the residence of the accused, being apartment #2, at 14 Oblate Street, St. Catharines, a two-story multi-unit apartment building.

[4] On that date, at 11:30 a.m., the accused was observed leaving 14 Oblate Street in a motor vehicle. He was followed and arrested. Fourteen minutes later, the search warrant was executed and police entered the apartment of the accused where they found 12.4 grams of cocaine under a computer desk, $1,640 in Canadian Currency near this desk and 8.5 grams of marijuana in a dryer vent outside the door to apartment #2.

[5] During the search, police were approached by a neighbour who advised that the accused would attend at various places in the backyard of 14 Oblate Street before meeting with people at his back fence. Police searched the backyard and discovered a Ziploc bag and black box buried in two separate locations, containing, for both, 55.7 grams of crack cocaine, bringing the total seized to 68.1 grams.

[6] The accused was on bail at the time of his arrest.

[7] He now is charged, on a five-count indictment, with the following offences:

▪ possession of cocaine, for the purpose of trafficking, contrary to s. 5(3)(a) of the Controlled Drugs and Substances Act;

▪ possession of marihuana, for the purpose of trafficking, contrary to s. 5(4) of the Controlled Drugs and Substances Act;

▪ possession of money of a value not exceeding five thousand dollars, knowing that same had been derived directly or indirectly from an offence punishable by indictment, contrary to s. 355(b) of the Criminal Code of Canada;

▪ failure to comply with a term of a recognizance that he abstain completely from the use, possession or consumption of non-medically prescribed drugs, contrary to s. 145(3) of the Criminal Code of Canada; and,

▪ failure to comply with a term of a recognizance that he possess only one cell phone, the number for which was to be provided to the Uniform Staff Sergeant, NRP, 68 Church Street, St. Catharines, contrary to s. 145(3) of the Criminal Code of Canada.

[8] In these Reasons, I will set out some relevant passages from the Information to Obtain, then deal with the request for leave to cross-examine the affiant and, finally, address s. 8 of the Charter and, very briefly, s. 24(2).

II. THE INFORMATION TO OBTAIN (“ITO”)

[9] The ITO for the Warrant to Search was sworn by Detective Constable Kaegan Sherriff (“Det. C. Sherriff”). It consists of three parts, one of which, the heart of the ITO, is Appendix “A”.

[10] In Appendix “A” to the ITO, Det. C. Sherriff swears that he believes, on reasonable and probable grounds: (1) that the offence of possession of a controlled substance for the purpose of trafficking has been, and is currently being, committed by the accused; (2) that there are reasonable grounds to believe that the itemized things to be seized will afford evidence of the offence; and, (3) that the things to be seized will be found at 2-14 Oblate Street.

[11] The ITO sets out the various investigative sources used, consisting of information and data from computerized police information networks (CPIC, VERSADEX).

[12] The ITO then identifies the “involved persons,” including four police officers: Constables Glenn CHAMBERS and Shawn DONOVAN, along with Detective Constables Dave SANTO and Paul JACKSON.

[13] The ITO goes on to make reference to five confidential informants, with many redactions:

Confidential Informant #1 wishes to remain anonymous for fear of their safety. This person will now be referred to as CI#1. [redacted] however, CI#1 has been proven reliable in the past. Information provided by CI#1 has led to the arrest of several individuals and the seizure of Crack Cocaine. CI#1 has knowledge of Ian LINDSAY and his involvement in possessing and trafficking cocaine from 2-237 Church Street, in the City of St. Catharines. CI#1 has provided Detective Constable SHERRIFF with information in the past that has always been proven reliable. CI#1 has always been accurate and has never provided information that has been exaggerated. CI#1 should be considered reliable.

[14] Thus, Confidential Informant #1 wishes to remain anonymous for fear of safety and redacted comments are made about his or her reliability. Confidential Informant #1 has provided information that has led to the arrest of several individuals and the seizure of crack cocaine. There is reference to the accused trafficking cocaine from 2-237 Church Street (which is not the address for the warrant that was issued). Det. C. Sherriff states that past information from this informant has proven reliable.

[15] In respect of Confidential Informant #2, the ITO reads:

Confidential Informant #2 wishes to remain anonymous for fear of their safety. This person will now be referred to as CI#2. CI#2 does have a criminal record but does not have any convictions for perjury or deceit. CI#2 has provided Constable Glenn CHAMBERS with information in the past that has always been proven reliable. CI#2 has knowledge of Ian LINDSAY and his involvement in possessing and trafficking cocaine from 2-237 Church Street, in the City of St. Catharines. CI#1 should be considered reliable.

[16] Confidential Informant #2 also wishes to remain anonymous for fear of safety. He or she has a criminal record, but does not have any convictions for perjury or deceit, and has provided reliable information to Constable Glenn Chambers. Confidential Informant #2 also mentions having knowledge that the accused trafficked cocaine from 2-237 Church Street.

[17] The ITO then speaks of Confidential Informant #3 who wishes to remain anonymous for fear of safety and who is a drug user, has a criminal record and is a registered informant:

Confidential Informant #3 wishes to remain anonymous for fear of their safety. This person will now be referred to as CI#3. CI#3 is a drug user and member of the St. Catharines drug subculture. As CI#3 is a drug user they are often in a position to have knowledge of detailed information regarding drug activities in the City of St. Catharines. CI#3 has a criminal record but has not been arrested or charged with Public Mischief or Perjury. [redacted] They are a registered informant in accordance with Niagara Regional Police policy and procedure. Confidential Informant provides information to the Police on an ongoing and regular basis, their motivation is for [redacted] monetary gain. CI#3 has provided the police with information that has been proven accurate and reliable in the past. Information provided by this individual has lead to the execution of three separate Controlled Drugs and Substances Act search warrants. As a result of these search warrants and investigations, several persons were arrested and charged and a quantity of cocaine was seized. [redacted]

[18] The motivation for Confidential Informant #3 is partially redacted and the concluding passage in this part of the ITO is entirely redacted.

[19] The remaining two Confidential Informants are described as not having a criminal record for perjury or deceit and having knowledge of the accused involved in trafficking cocaine from 14 Oblate Street. The ITO reads:

Confidential Informant #4 wishes to remain anonymous for fear of their safety. This person will now be referred to as CI#4. CI#4 may or may not have a criminal record but does not have any convictions for perjury or deceit. CI#4 has not provided Constable Shawn DONOVAN with information in the past. CI#4 has knowledge of Ian LINDSAY and his involvement in possessing and trafficking cocaine from 14 Oblate Street, in the City of St. Catharines. Information provided by CI#4 has been corroborated with information provided by other confidential informants and should therefore be considered reliable.

Confidential Informant #5 wishes to remain anonymous for fear of their safety. This person will now be referred to as CI#5. CI#5 may or may not have a criminal record but does not have any convictions for perjury or deceit. CI#5 has not provided Constable Shawn DONOVAN with information in the past. CI#5 has knowledge of Ian LINDSAY and his involvement in possessing and trafficking cocaine from 14 Oblate Street, in the City of St. Catharines. Information provided by CI#5 has been corroborated with information provided by other confidential informants and should therefore be considered reliable.

[20] At this point, the ITO outlines the grounds to believe an offence has been committed consisting of information from the confidential informants and from physical surveillance (the paragraphs in the ITO are not numbered):

On February [redacted], 2012, I received information from CI#1. CI#1 advised me of the following:

• CI#1 purchased [redacted] crack cocaine from Ian LINDSAY, [redacted] in the City of St. Catharines.

I am familiar with Ian LINDSAY. I believe Ian LINDSAY uses the nickname “T” when conducting his drug dealing. It is very common for a drug dealer not to use their first name to avoid being identified by police.

On March [redacted], 2012, I received information from CI#1. CI#1 advised me of the following:

• CI#1 purchased crack cocaine from Ian LINDSAY [redacted] in St. Catharines. [redacted]

On May [redacted], 2012, I received information from CI#1. CI#1 advised me of the following:

• CI#1 purchased crack cocaine from Ian LINDSAY, [redacted] in St. Catharines.

On May [redacted] 2012, I received information from CI #1. CI#1 advised me of the following:

• CI#1 has been purchasing [redacted] crack cocaine from Ian LINDSAY [redacted] in St. Catharines.

On May [redacted], 2012, CI#1 purchased [redacted] crack cocaine from Ian LINDSAY, [redacted] in St. Catharines.

• Later that day, [redacted], CI#1 purchased [redacted] crack cocaine from Ian LINDSAY.

• [redacted]

On May [redacted], 2012, I received information from CI#1. CI#1 advised me of the following:

• CI#1 purchased [redacted] crack cocaine from Ian LINDSAY, [redacted] in the City of St. Catharines.

On May [redacted], 2012, I received information from CI#1. CI#1 advised me of the following:

• CI#1 purchased [redacted] crack cocaine from Ian LINDSAY, [redacted] in the City of St. Catharines.

• [redacted]

• CI#1 described Ian LINDSAY, as a black male, 5’8”, slim build 40-50 years of age with short black hair and a scruffy face.

[21] The ITO continues with a reference to a VERSADEX check having been made:

On May 29^th, 2012, I performed a VERSADEX check on Ian LINDSAY with a date of birth of 1966-09-25. The check revealed that Ian LINDSAY had a Niagara Regional Police mugshot photograph. I have had previous involvement with Ian LINDSAY and I believe that Ian LINDSAY is the same male with a date of birth of 1966-09-25 as compared in the Niagara Regional Police mug shot photograph. The check also revealed that Ian LINDSAY has been the subject of 13 drug related investigations since March 6^th, 2006.

[22] The role of the accused in each of the just-mentioned 13 drug-related investigations is not mentioned. The ITO goes on and refers to a CPIC check and the fact that the accused has a criminal record with 11 convictions:

On May 29^th, 2012, I conducted a CPIC check on Ian LINDSAY with a date of birth of 1966-09-25. The check revealed that Ian LINDSAY had a criminal record with eleven convictions dating back to 2003. The check also revealed that Ian LINDSAY is currently accused for Fail to Comply With Recognizance x 2, Possession Of a Schedule I Substance for the Purpose of Trafficking and Possession Of Property Obtained By Crime.

On May 29^th, 2012, I reviewed incident #10-39322 authored by Detective Constable Dave SANTO. I received information that on May 7^th, 2010, judicial authorization was granted to enter and search the residence Ian LINDSAY with a date of birth of 1966-09-25, at 49 Haig Street, in the City of St. Catharines. Upon search of the residence 4.10 grams of crack cocaine was located along with numerous cell phones, scales, debt lists, and a quantity of Canadian and American currency. Ian LINDSAY was arrested and charged with Possession for the purposes of Trafficking.

[23] The ITO continues:

On May 29^th, 2012, I reviewed the VERSADEX report authored by Constable Glenn CHAMBERS with regards to drug activity occurring at 2-237 Church Street in the City of St. Catharines. The report was submitted under incident #12 [redacted]. The report is summarized as follows:

• CI#2 advised that a male by the alias of “T” has been dealing large quantities of crack cocaine from a unit above Pete’s Pizza on Queenston Street.

• “T” is described as a black male, approximately 5’9”, in his late 40’s with short hair.

• The informant has purchased crack cocaine [redacted].

On July 11^th, 2012, I performed a VERSADEX check on 2-14 Oblate Street, in the City of St. Catharines. The check revealed that Ian LINDSAY with a date of birth of 1966-09-25 had the current address of 2-14 Oblate Street, in the City of St. Catharines.

[24] The ITO describes information received from Det. C. Santo:

On July [redacted], I spoke to Detective Dave SANTO in regards to drug activity occurring at 2-237 Church Street in the City of St. Catharines, Detective Constable Dave SANTO received information from CI#3. CI#3 advised Detective Constable Dave SANTO of the following:

• Ian LINDSAY uses the street name “T”.

• Ian LINDSAY sells crack cocaine from a residence on Oblate Street which is situated near a park and an apartment above Pete’s Pizza located beside the Delta Bingo in St. Catharines.

• Ian LINDSAY is busy and sells to local prostitutes and drug users from the apartment above Pete’s Pizza and does not have many people attend his residence on Oblate.

• Ian LINDSAY has a younger white male named Harley who delivers crack cocaine for him.

• July [redacted], 2012, CI#3 went to the apartment above Pete’s Pizza and describes it as up the stairs and to the left, possibly apartment number 1. This apartment is rented by a white male named Darren who also used to sell crack cocaine for Ian LINDSAY. Darren is described as a scruffy looking male. [redacted]

• [redacted]

• Ian LINDSAY usually keeps the crack cocaine on his person and weighs the desired amount for the buyer when one will attend the apartment above Pete’s Pizza.

• July [redacted], 2012, CI#3 contacted Ian LINDSAY [redacted] to purchase [redacted] crack cocaine. CI#3 then went to a park nearby Oblate Street and met Harley to purchase the drugs.

• [redacted]

[25] The ITO refers to a VERSADEX report:

On July 10^th, 2012, I reviewed the VERSADEX report authored by Constable Shawn DONOVAN with regards to drug activity occurring at 14 Oblate Street in the City of St. Catharines. The report was submitted under incident #12 [redacted]. The report is summarized as follows:

• Cocaine is being sold actively from the residence of 14 Oblate Street in the City of St. Catharines.

• A black male who is described as 35 years of age, 5’10”, 175lbs and a white female described as 30 years of age reside in the downstairs apartment.

• The black male attends the east side of the backyard and conducts his drug transactions by exchanging product for money through a fence to the individual waiting in a rear parking lot.

• The black male typically waits in a rusty white shed in his backyard.

• [redacted]

• CI#4 has witnessed the drug activity on more than one occasion [redacted].

A supplemental report under the same incident #12 [redacted] was submitted by Constable Shawn DONOVAN and is summarized as follows:

• [redacted] unknown individuals attend the rear fence of 14 Oblate Street to purchase cocaine or crack cocaine.

• [redacted]

[26] The ITO continues:

On July [redacted], 2012, I received information from CI#1. CI#1 advised me of the following:

• At [redacted], CI#1 purchased [redacted] crack cocaine from Ian LINDSAY at Pearson Park, in the City of St. Catharines.

On July [redacted], 2012, I received information from CI#1. CI#1 advised me of the following:

• At [redacted], CI#1 purchased [redacted] crack cocaine from Ian LINDSAY, in apartment 2 above Pete’s Pizza on Queenston Street in the City of St. Catharines.

• [redacted]

• Access to apartment 2 is gained by way of a side door, which leads up a set of stairs to the apartment door.

[27] The ITO mentions further information received in the month of July:

On July [redacted], 2012, I received information from CI#1. CI#1 advised me of the following:

• [redacted]

• [redacted] purchased [redacted] crack cocaine from him. [redacted]

Information received to date shows that Ian LINDSAY is currently residing at 2-14 Oblate Street, in the City of St. Catharines, [redacted] he sells cocaine from that residence. The information also shows that Ian LINDSAY sells cocaine from 2-237 Church Street, in the City of St. Catharines, which is the residence of Darrin MATHIESON.

[28] The ITO then outlines observations made by Det. C. Sherriff in the course of physical surveillance:

On July 12^th, 2012, I conducted physical surveillance in the area of Pearson Park in the city of St. Catharines. Pearson Park is located at the corner of Carlton Street and Niagara Street and is situated between 14 Oblate Street and 339 Niagara Street. During this time I observed the following:

• At 2:44 p.m., Ian LINDSAY who was wearing a grey tank top and dark shorts walked south bound from the area of 339 Niagara Street and met with an unknown white male wearing a yellow shirt and camouflage shorts at the South end of the park behind a soccer field on a bench.

• Ian LINDSAY conversed with the male briefly and subsequently conducted a hand to hand transaction. The unknown male provided Ian LINDSAY with what appeared to be an unknown amount of money and in exchange, Ian LINDSAY provided the male with an item. The unknown male left the area walking South bound on Niagara Street and Ian LINDSAY left the area walking Northbound on Niagara Street. Ian LINDSAY was then observed sitting on the front porch of 339 Niagara Street.

• At 3:00 p.m., Ian LINDSAY attended back to the same area he met the unknown male at and at 3:16 p.m., he met with an unknown white female who was wearing a yellow shirt and brown shorts. The female wearing the yellow shirt conversed with Ian LINDSAY briefly and conducted a hand to hand transaction with him by providing him with an unknown amount of money and in exchange, Ian LINDSAY provided the female with an item. The female left the area riding a bicycle South bound on Oblate Street.

• At 3:17 p.m., Ian LINDSAY met another unknown white female who was wearing beige top and black Capri pants. The female wearing the beige top conversed with Ian LINDSAY briefly and conducted a hand to hand transaction with him by providing him with an unknown amount of money and in exchange, Ian LINDSAY provided the female with an item. The female left the area walking South bound on Oblate Street.

• At 3:19 p.m., Ian LINDSAY began walking South bound on Oblate Street and stopped at the corner of Oblate Street and Carlton Street where he met with another unknown white female wearing a black tank top and black shorts. The female wearing the black tank top conversed with Ian LINDSAY briefly and conducted a hand to hand transaction with him by providing him with an unknown amount of money and in exchange, Ian LINDSAY provided the female with an item.

• After conducting the hand to hand transaction with the female in the black tank top, Ian LINDSAY continued walking South bound where he subsequently entered 2-14 Oblate Street in the City of St. Catharines.

• At 3:45 p.m., Ian LINDSAY was observed entering brown Toyota sedan. The vehicle proceeded to Carlton Street where I lost sight of it due to heavy vehicular traffic.

It is my belief that these observations are consistent with those conducting hand to hand drug transactions. Furthermore these observations corroborate the information provided by confidential informants who indicated that Ian LINDSAY conducts drug transactions in various locations away from his residence which is a safe place [redacted].

[29] The ITO describes a conversation between Det. C. Sherriff and Const. Glenn Chambers:

On July [redacted], 2012, I spoke to Constable Glenn CHAMBERS in regards to drug activity occurring in the area of Pearson Park and Oblate Street, in the City of St. Catharines. Constable Glenn CHAMBERS received information from CI#2. CI#2 advised Constable Glenn CHAMBERS of the following:

• On July [redacted], 2012, CI#2 advised Ian LINDSAY resides on Oblate Street, in the City of St. Catharines and sells crack cocaine from there and from Pearson Park.

• On July [redacted], 2012, at [redacted] CI#2 purchased [redacted] crack cocaine from Ian LINDSAY at Pearson Park.

[30] The ITO continues with a description of physical surveillance conducted by Det. C. Paul Jackson:

On July 16^th, 2012, Detective Constable Paul JACKSON conducted physical surveillance at 14 Oblate Street, in the City of St. Catharines. Detective Constable Paul JACKSON observed the following:

• At 3:58 p.m., an unknown white male attended 14 Oblate Street on a bicycle and attended to the South side of the residence.

• At 4:07 p.m., the male left the residence and rode towards Garnet Street.

• At 4:12 p.m., the male appeared from the apartments on Carlton Street which are directly behind 14 Oblate Street, which is separated by a fence.

• The male is described as white, shaved head, skinny, in his early 30’s wearing a beige shirt, jean shorts and sun glasses.

[31] Finally, the ITO refers to information received by Det. C. Sherriff from Confidential Informant #1:

On July [redacted], 2012, I received information from CI#1. CI#1 advised me of the following:

• CI#1 met [redacted] 14 Oblate Street, in the City of St. Catharines and purchased [redacted] crack cocaine from Ian LINDSAY.

• At [redacted], CI#1 [redacted] 14 Oblate Street, in the City of St. Catharines and purchased [redacted] crack cocaine from Ian LINDSAY.

• CI#1 advised they would be returning to see Ian LINDSAY as he always has product on hand and that they have never been turned away.

The information provided by CI#1 on July [redacted], 2012, is corroborated by Detective Constable Paul JACKSON’s observations on the same date.

On each occasion where Police have conducted physical surveillance on Ian LINDSAY, they have observed behavior which is consistent with drug transactions. Police have corroborated these observations with information provided by 5 confidential informants.

[32] The above information received from Confidential Informant #1 concluded the police investigation and the ITO goes on to describe the location to be searched:

The location to be searched is 2-14 Oblate Street in the City of St. Catharines. 14 Oblate Street is described as 2 story multi unit residence. 14 Oblate Street is comprised of red brick and stucco siding. 14 Oblate Street is located on the east side of Oblate Street between Carlton Street and Garnet Street. A side door is located on the south side of the building which leads up a set of stairs. Once at the top of the stairs access to apartment 2 is gained through a door labeled “2”.

[33] The ITO ends by summarizing the grounds to believe that a search warrant should be issued, referring to the various confidential informants and the physical surveillance.

III. LEAVE TO CROSS-EXAMINE

[34] The accused contends that there were no reasonable and probable grounds for the issuance of the search warrant. For the purposes of the inquiry to be conducted under s. 8 of the Charter, counsel for the accused wishes to cross-examine Det. C. Sherriff, the affiant of the ITO. The entitlement to, and, if leave is granted, the extent of, that cross-examination now must be determined.

[35] Leave to cross-examine an affiant or sub-affiant may be sought at either the preliminary inquiry stage or at trial.

[36] The accused relies only on the affidavit of Det. C. Sherriff and has not filed any supporting affidavit material of his own.

[37] As worded in the factum of the accused, he seeks leave to cross-examine Det. C. Sherriff “in relation to his observations and assertions made within the [ITO]” and to cross-examine him “on errors or omissions in the [ITO] that are clear now or become apparent during the course of the trial.” Further areas of cross-examination proposed by the accused include the criminal records, motivation and reliability of the confidential informants and the relationship of those informants with police.

[38] In an application challenging a warrant, an accused does not have an automatic right of cross-examination.

1. The Garofoli test

[39] The test for leave to cross-examine an affiant was first set out by Sopinka J. in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at paras. 88 and 89: [Underlining and footnote added]

. . . I am in favour of placing reasonable limitations on the cross-examination. Leave must be obtained to cross-examine. The granting of leave must be left to the exercise of the discretion of the trial judge. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds.

When permitted, the cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted . . .[^1]

[40] It is not sufficient to show that the cross-examination might elicit such evidence: see R. v. Washington (1997), 1997 CanLII 3968 (ON CA), 104 O.A.C. 210 210 (C.A.) at para. 11.

[41] The cross-examination must relate to something that is likely “to alter the character of the supportive affidavit”: see R. v. Land (1990), 1990 CanLII 10969 (ON SC), 55 C.C.C. (3d) 382 (Ont. H.C.J.) at p. 417 and adopted in R. v. Nguyen, 2011 ONCA 465.

[42] “The Garofoli threshold test requires that the defence show a reasonable likelihood that cross-examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewing judge. It is grounded in two basic principles of evidence: relevance and materiality”: see R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343, 2005 SCC 66 at para. 3.

[43] “The reason that the test will generally leave just a narrow window for cross-examination is not because the test is onerous – it is because there is just a narrow basis upon which an authorization can be set aside”: see R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343, 2005 SCC 66 at para. 40.

[44] “. . . cross-examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false”: see R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343, 2005 SCC 66 at para. 41.

[45] “. . . the threshold test for determining whether cross-examination should be allowed is separate and distinct from the ultimate question of whether the authorization is valid . . . [The focus is on] the likely effect of the proposed cross-examination and on whether there is a reasonable likelihood that it will undermine the basis for the authorization” see R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 at para. 69.

2. Evidentiary Burden

[46] Although the evidentiary burden is on the accused, “it is not necessary for the defence to go further and demonstrate that cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization . . . A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown”: see R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 at para. 40.

[47] “The insufficiency of the affidavit, on its face, may suffice to show a basis for cross-examination”: see R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 at para. 44.

[48] “A judge has discretion to permit cross-examination of the affiant of a search warrant, but the onus is on the [accused] to establish that cross-examination will assist in undermining the factual basis for the authorization”: see R. v. Brown, 2013 ONSC 2528 at para. 3.

[49] “. . . an applicant, in order to make a preliminary showing for leave to cross-examine respecting subject matter which will impact on the admissibility of evidence, may not require as robust a record as contradictory or other evidence, where the face of the affidavit itself establishes a reasonable likelihood that the affiant has withheld source facts, or advanced bald conclusory inferences or apparently illogical factual assertions . . . In other words, an applicant, in defining its threshold case for leave, may point to factors which equally support a facial invalidity submission in the absence of cross-examination”: see R. v. Pham, [2009] O.J. No. 4296 at para. 33.

[50] Mere speculation or a bare request will not be sufficient to meet the evidentiary burden. The accused must demonstrate a factual basis in the evidence before the reviewing court will grant leave.

[51] A “fishing expedition” is not permitted: see R. v. Washington (1997), 1997 CanLII 3968 (ON CA), 104 O.A.C. 210 210 (C.A.) at para. 11.

[52] A trial judge “refused leave to cross-examine at large on issues relating to information provided by [a] confidential informant.” It was concluded by the trial judge that the “proposed grounds for cross-examination were speculative and amounted to a request for a fishing expedition.” On appeal, the Court held that the trial judge did not err: see R. v. Bouchard, 2013 ONCA 209 at para. 2.

[53] If the only thing that will be revealed by the cross-examination is that the affiant overstated the value of a piece of evidence, it may be insufficient for leave to be granted: see R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 at para. 68.

[54] “. . . cross-examination on the credibility of an informant . . . would only be of value to the court if it could be shown that the affiant knew or ought to have known that the informant’s information was false. An affiant is entitled to rely on apparently credible information even if it is shown to be false by subsequent investigation”: see R. v. Brown, 2013 ONSC 2528 at para. 9.

[55] It would be wrong for a court to hold that it was “necessary to demonstrate that cross-examination will cause a deponent to concede he did not have reasonable grounds that an offence has occurred,” as that would be “a practically impossible task.” All the defence must show “is a reasonable likelihood that [the cross-examination] will assist the court in assessing the basis of the warrant”: see R. v. Vi, 2010 BCCA 496 at para. 6.

3. Sub-affiants

[56] Generally, leave to cross-examine a sub-affiant will not be granted unless the defence persuades the trial judge that there is a factual basis in the evidence for concluding that the affiant is a “straw man” and that the sub-affiant is therefore the “true affiant”: see R. v. Durette (1992), 1992 CanLII 2779 (ON CA), 72 C.C.C. (3d) 421 (Ont. C.A.) at pp. 453-4; rev’d on other grounds at 1994 CanLII 123 (SCC), [1994] 1 S.C.R. 469.

4. Confidential informants

[57] The involvement of a confidential informant raises special considerations.

(a) confidential informant privilege

[58] The confidential informant privilege is a rule of “ancient and hallowed protection which plays a vital role in law enforcement”: see, for example, R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281 at para. 9 and R. v. Omar, 2007 ONCA 117.

[59] It is well-settled that confidential informant privilege “belongs to the informant and not to the police or to the Crown or the courts”: see R. v. White, 2008 CanLII 46360 (ON SC) at para. 23.

[60] Confidential informant privilege not only safeguards the individual informer but also is a signal to others that they will be similarly protected: see Named Person v. Vancouver Sun, 2007 SCC 43 at para. 18.

[61] “Informant privilege is not to be balanced against other competing rights, but is subject only to the innocence at stake exception”: see R. v. White, 2008 CanLII 46360 (ON SC) at para. 23.

[62] “It is undisputed that the privilege protects not only the name of the informant, but also any information which might directly or indirectly reveal his or her identity”: see R. v. White, 2008 CanLII 46360 (ON SC) at para. 23.

[63] “. . . not everybody who provides information to the police thereby becomes a confidential informant”: see R. v. Barros, 2011 SCC 51 at para. 31.

[64] Informer privilege “arises where a police officer, in the course of an investigation, guarantees protection and confidentiality to a prospective informer in exchange for useful information that would otherwise be difficult or impossible to obtain”: see R. v. Basi, 2009 SCC 52 at para. 36.

[65] “Once a police informer goes into the ‘field’ and acts as a police agent, the informer privilege is no longer applicable to prevent disclosure of his or her identity in respect of the events in which he or she acted as an agent”: see R. v. Broyles, 1991 CanLII 15 (SCC), [1991] 3 S.C.R. 595, at pp. 607-609.

[66] “A claim to informer privilege is always open to challenge by the defence. The Crown is better able to meet the challenge if it can point to clear evidence of informer status being conferred explicitly rather than after-the-fact supposition”: see R. v. Barros, 2011 SCC 51 at para. 32.

[67] The informer privilege rule is of fundamental importance to the workings of the criminal justice system. As described in Basaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60 at p. 105, 7 C.C.C. (3^rd) 385, 2 D.L.R. (4^th) 193:

The rule gives a peace officer the power to promise his informers secrecy expressly or by implication, with a guarantee sanctioned by the law that this promise will be kept even in court, and to receive in exchange with this promise information about which it would be extremely difficult for him to carry out his duties and ensure that the criminal law is obeyed.

(b) the risk of identifying the confidential informant

[68] “. . . when confidential informants are involved, utmost care must be exercised to ensure that their identifies are not unwittingly revealed through providing information about them or their stories which appears innocuous but which in fact is significant to the accused. In the criminal justice system, the informant’s handlers have the best information as to what information may put the informers, or their family members, at risk (R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281)”: see R. v. Bouchard, 2011 ONSC 4994 at paras. 17 and 18.

[69] In R. v. Thompson et al., 2014 ONSC 250, the court declined a request for leave to examine a police officer affiant about information previously provided by the confidential informant and its reliability and to ask other miscellaneous questions relating to the confidential informant, stating, at para. 68:

. . . all of the areas the applicants intended to examine on were prohibited territory having regard to informer privilege. There is no question in my mind that the areas the applicants sought to examine Officer Edgar on would or could identify the [confidential informant].

[70] Leave to cross-examine will be refused where the “questions might jeopardize the identity of the confidential informant”: see R. v. Opoku-Mensah, 2012 CanLII 98268 (ON SC) at para. 25.

[71] “The ultimate question to be asked with respect to the confidential informants, that would allow the accused to know the vantage point of each confidential informant, and make full answer and defence, is, ‘Who were the confidential informants?’ That question, and any tending to the same end, can never be asked. I can see no other legitimate area of cross-examination concerning the informants, or any of them, that would reasonably tend to undermine a necessary precondition of the authorization”: see R. v. McGee et al., 2008 ONCJ 436 at p. 29.

[72] In R. v. Arviko, 2013 ONSC 5327, the court, in considering an application for leave to cross-examine the affiant of an ITO and certain sub-affiants who relied extensively on what were termed “confidential sources,” stated, at para. 57:

I have some difficulty accepting that merely knowing the jurisdiction in which the handler works could reduce the pool of possible people who could have provided the information in question. However, not knowing the investigation in the way the investigators and prosecutors do, I am not prepared to say categorically that this knowledge could not reduce the pool for the cognoscenti. Obviously, if there is any possibility at all that this knowledge could reduce the pool, then it is not appropriate to disclose it. What, then, is the downside of not disclosing the information? As I see it, there is absolutely no utility to the defence in knowing the police service by which the handler is employed and, by extension, I fail to see how this information could assist the court to decide that what was put before the issuing justice was insufficient to warrant granting the authorization. Accordingly, cross-examination is not warranted on this basis.

[73] Informer privilege prevents not only disclosure of the name of the informant, but any information which might implicitly reveal his or her identity. Courts have acknowledged that the smallest details may be sufficient to reveal identity. In R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 at p. 1460, Sopinka J. suggested that trial judges, when editing a wiretap packet, consider:

. . . Whether the identities of confidential police informants, and consequently their lives and safety, may be compromised, bearing in mind that such disclosure may occur as much by reference to the nature of the information supplied by the confidential source as by the publication of his or her name . . .

(c) reliability

[74] On the issue of the “past performance” of a confidential informant, cross-examination is not necessary where the material provided to the defence is sufficient in that regard: see R. v. Opoku-Mensah, 2012 CanLII 98268 (On SC) at para. 21.

(d) motivation

[75] “. . . it is of some significance to clarify whether [the] confidential informant . . . was motivated by consideration other than money, as well as to determine the nature of that consideration . . . so long as informer privilege is not encroached upon”: see R. v. McGee et al., 2009 CanLII 62069 (ON SC) at para. 38.

(e) striking a balance

[76] “It is understandable that the police may need to protect a confidential source and therefore may not be in a position to reveal certain information. However, sufficient information must be revealed to justify the granting of the search warrant or to justify a warrantless search on the basis of reasonable and probable grounds. A warrantless search can never be justified on the basis of unrevealed information”: see R v. Zammit (1993), 81 C.C.C. (3d) 113 at 120 (Ont. C.A.).

5. Criminal record of a confidential informant

[77] In R. v. Rocha (2012), 2012 ONCA 707, 112 O.R. (3d) 742 (C.A.), the accused was charged with drug and weapons charges. Evidence was seized following execution of search warrants at the residence where the accused, his brother and parents lived and at a restaurant operated by the accused and his brother and owned by the parents. The search of the restaurant led to the seizure of a small amount of cocaine and the search of the residence resulted in a more substantial seizure of prohibited weapons and drugs. The trial judge held that the ITOs were insufficient and that, in respect of the residence, the right of the accused to protection against unreasonable search and seizure guaranteed under s. 8 of the Charter was violated and excluded the evidence pursuant to s. 24(2). The evidence found in the restaurant was not excluded. The crown unsuccessfully appealed against the acquittal on the charges in relation to the search of the residence.

[78] At paragraphs 6 and 8 the Court stated:

There is some odd wording in the ITOs. For example, they describe the informer as having no convictions for perjury or public mischief. The ITOs do not set out whether the informer otherwise has a criminal record. They indicate that the informer has previously provided information to the police that led to persons being ‘arrested/charged’ and illegal narcotics and stolen property seized. The ITOs do not clearly indicate that any person was convicted as a result of the information provided by the informer.

The ITO did not indicate whether the informer had a criminal record for crimes of dishonesty besides perjury and public mischief and did not state the informer’s motivation for providing the information to the police.

[79] At paragraph 19, the Court agreed with the trial judge that “the information concerning the credibility of the informer was weak . . . primarily because of the awkward wording of the ITO” and at paragraph 20 stated:

It seems that the affiant is attempting to convey the idea that information from the informer has led to the finding of contraband but this assertion is confused with the assertion that the informer’s information has merely led to the laying of charges.

[80] At paragraph 33, the Court again addressed the record of the informer:

The entire [criminal] record was not placed before the justice of the peace; rather, there was the oddly worded statement that the informer did not have a record for perjury and public mischief. This paragraph was drafted by D.C. Naidoo and was obviously intended to leave the impression of honesty on the part of the informer. But, perjury and public mischief are not the only types of offences that would bear on the honesty and hence credibility of a confidential informer. The preliminary inquiry evidence of D.C. Naidoo shows that this was a deliberate decision. It was also a decision rooted in a systemic practice on the part of D.C. Naidoo, at least where he was the sub-affiant.

[81] “. . . the judicial landscape changed with R. v. Rocha . . . which made it clear in October, 2012, that affiants are required to include the criminal record of confidential informants be filed as part of the information in the ITO. This ITO was prepared in May, 2012, before this clear direction was given by the Court of Appeal”: see R. v. Izzard, 2014 ONSC 1821 at para. 25.

[82] The ITO in the case at bar also pre-dates R. v. Rocha.

[83] R. v. Izzard went on to state, at para. 27:

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

and, at para. 29:

. . . that the consideration of the criminal records of the [confidential informants] could be taken into account . . . as evidence amplifying the unredacted ITO considered by the [issuing justice].

[84] In R. v. Izzard, the crown acknowledged that the redacted version of the ITO would not be sufficient to support a search warrant. At the request of the crown and with the consent of the defence, the court proceeded directly to a step 6 analysis in accordance with R. v. Garofoli, so as to consider the information in the unredacted ITO.

[85] In R. v. Brown, 2013 ONSC 2528 the defence sought leave to cross-examine the affiant of an ITO, a police officer. The officer disclosed in the ITO that a confidential informant had a criminal record, but did not provide particulars, other than that there were no convictions or charges for obstruction of justice or perjury. The accused argued that he should have disclosed the complete criminal record, as this was necessary to give the issuing justice “a full picture of the reliability of [the informant].” The court held, at paragraph 11, that this was “a submission that could be made on the ITO itself.” The court was not satisfied that “that cross-examination was likely to provide evidence that would undermine the basis for the issuance of the search warrant” and further held that “disclosure of [the informant]’s criminal record would serve to identify him or her or to narrow the pool.”

[86] In R. v. Browne, 2014 ONSC 2563 the defence applied for leave to cross-examine an affiant as to the reliability of a confidential informant. The redacted ITO did not mention a criminal record for the informant and it did not suggest that the informant sought to be paid for his or her information. At paragraph 12, the court stated that the accused “wants to question the affiant about whether the confidential informant sought financial compensation from the police, the nature of any potential criminal record possessed by the confidential informant, whether the confidential informant maintained a criminal lifestyle and whether the confidential informant might have any motive to manufacture allegations against the accused.” The court held, at paragraph 13:

I decline to permit the accused to conduct this proposed cross-examination of the affiant. MacDonnell J. dealt with a very similar issue in R. v. Ahmed et al., [2012 ONSC 5282] at paras. 19-21. The accused in that case wanted to cross-examine the affiant about some of the personal characteristics of the confidential sources, including ‘whether any consideration provided was dependent on accuracy,’ whether the source was in custody, whether the source was involved in the alleged criminal activities with the accused, and whether the source had a criminal record for crimes of dishonesty. MacDonnell J. concluded that it was manifest that much of this proposed cross-examination was ‘capable of narrowing the pool of individuals who could have provided the information,’ and thus was ‘capable of infringing on confidential source privilege’ . . . These conclusions apply equally to the circumstances of the present case. Accordingly, in order to properly protect the confidential informant privilege . . . the accused cannot cross-examine the affiant in relation to these issues.

[87] In R. v. McGee et al., 2009 CanLII 62069 (ON SC), the criminal record of a confidential informant was inconsistently described in two police affidavits. The court stated, at paragraph 37:

It would be useful to clarify, for the record, whether Confidential Informant #3 has a record for dishonesty-related offences, although it will not be possible to probe into the exact nature of such convictions.

At paragraph 54, leave to cross-examine was granted in respect of “the reliability of the confidential informants, specifically limited to . . . the clarification of Confidential Informant #3’s criminal record for offences of a dishonest nature . . .”

6. Summary of leave-to-cross-examine principles

[88] Hill J., in R. v. Cook, 2008 CanLII 63139 (ON SC), in his typically thorough fashion, usefully summarized some of the “overarching” principles in considering requests for leave to cross-examine affiants and sub-affiants in ITOs, at para. 28:

(1) a [Controlled Drugs and Substances Act] search warrant is presumptively a valid court order;

(2) the right of cross-examination is of fundamental significance to the criminal process: R. v. Pires (2005), 2005 SCC 66, 201 C.C.C. (3d) 449 (S.C.C.) at para. 3;

(3) the right to cross-examine is not unlimited or absolute and, with respect to cross-examination of the affiant of a sworn application for a search/seizure order, ‘leave to cross-examine is not the general rule’: Pires, at para. 3; R. v. Garofoli (1990), 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 161 (S.C.C.) at para. 89;

(4) because there is no untrammelled right to cross-examine an affiant (R. v. Martin, [2000] O.J. No. 1362 (C.A.) at para. 2), leave to cross-examine should be given only where ‘necessary’ to enable an accused to make full answer and defence: Garofoli, at para. 88;

(5) there is an onus, albeit not an onerous one (Pires, at para. 40), on an accused seeking cross-examination ‘to show’ a basis (Pires, at para. 3), to ‘show a reason’ (Martin, at para. 2), for cross-examination before leave will be granted for an evidentiary hearing with cross-examination;

(6) the leave question, involving an exercise of discretion by a trial judge (Pires, at para. 46), considers whether the applicant has established ‘a reasonable likelihood’ that cross-examination of the applicant will elicit testimony of probative value to an issue under consideration, for example, a challenge to the accuracy of an affidavit insofar as inaccuracy or omissions impact on the existence of reasonable grounds for issuance of the search order: Pires, at para. 3, 65; Martin, at para. 2;

(7) because an application for a search order is an ex parte application, the affiant is obliged to provide accurate, truthful, full and frank disclosure of material facts (see cases cited at R. v. M.(N.) (2008), 2007 PESCAD 17, 223 C.C.C. (3d) 1 (Ont. S.C.J.) at para. 320-2);

(8) because deficiencies such as inaccurate information or omission of a material fact ‘will not necessarily detract from the existence of the statutory preconditions’ for issuance of the search order (Pires, at para. 30; R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.) at para. 51, 54; R. v. Lajeunesse, 2006 CanLII 11655 (ON CA), [2006] O.J. No. 1445 (C.A.) at para. 8; R. v. Ambrose, 1994 CanLII 1378 (ON CA), [1994] O.J. No. 1457 (C.A.) at para. 7), a mere showing of error, omission, lack of precision or overstatement will not suffice to establish the case for leave to cross-examine:

…cross-examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false. (Pires, at para. 41)

(9) recognizing that leave to cross-examine ought not to be given where there is no reasonable likelihood that it will impact on the admissibility of the evidence (Pires, at para. 31; R. v. Camara, 2005 BCCA 639, [2005] B.C.J. No. 2803 (C.A.) at para. 32; R. v. Durette et al. (1992), 1992 CanLII 2779 (ON CA), 72 C.C.C. (3d) 421 (Ont. C.A.) at 454-5 (rev’d on a different basis (1994), 1994 CanLII 123 (SCC), 88 C.C.C. (3d) 1 (S.C.C.)), it is necessary to examine the nature of the alleged errors (Lajeunesse, at para. 8) in light of the affidavit as a whole (Pires, at para. 69) to determine whether they are relevant to a central or foundational issue underlying the existence of reasonable grounds;

(10) in the exercise of discretion to grant leave to cross-examine, including consideration of efficient use of judicial and court resources and the timely determination of criminal proceedings (Pires, at para. 3), the court may have regard to whether the applicant has earlier cross-examined the affiant on the same issues: R. v. Oliynyk; R. v. Lepage (2008), 2008 BCCA 132, 232 C.C.C. (3d) 411 (B.C.C.A.) at para. 18 (leave to appeal denied to Oliynyk [2008] S.C.C.A. No. 252; leave to appeal denied to Lepage [2008] S.C.C.A. No. 249].

7. The proposed questions

[89] Recognizing that the cross-examination of an ITO affiant has a greater risk of inadvertently revealing privileged information as to a confidential informant than would an affidavit (and without, at that point, deciding whether there was a basis for cross-examination), I requested Mr. Singh, counsel for the accused, to draft the questions that he would like to ask of Det. C. Sherriff and Det. C. Santo (the latter being a sub-affiant). In respect of Det. C. Sherriff, Mr. Singh tendered 78 questions and, for Det. C. Santo, 44 questions, relating to what were described as “introductory” matters and “ITO, notes and inconsistencies.”

[90] Examples of introductory questions for Det. C. Sherriff are as follows:

Was July 12, 2012 the first date that you conducted physical surveillance on [the accused] in relation to this matter?
Did you go to Pearson Park to look for [the accused]?
Did you request Detective Santo to attend with you?
Was Detective Santo there because Pearson Park is a very large area and it would be easier for two of you to make observations and notes?
This was to assist on observations?
Can you draw a diagram, not to scale, of the layout of Pearson Park and where you were located?
Were you in an unmarked cruiser?
Did you remain in the cruiser throughout?
Was detective Santo in an unmarked cruiser?
Did you communicate with Detective Santo in real time using a mobile radio?
How does that system work?

[91] Mr. Singh had received disclosure of the notes of Detective C. Santo and he wanted to question Det. C. Sherriff on what he termed “inconsistencies,” one of which related to observations made by the officers at 2:44 p.m. on July 12, 2012. The ITO reads (and I mentioned this earlier): [Underlining added]

[92] The notes of Det. C. Santo state: [Underlining added]

2:44 [The accused] walks from North position park wearing grey tank top and dark shorts meet with white male wearing yellow (bright) shirt and camouflage shorts female appears to be waiting on park bench for the males . . . both males conversed and sat in shade under a tree in close proximity to each other may have been passing items back and forth on the grass or low to the ground. Both left after approx. 2 minutes of short conversation [the accused] away north bound toward the way he came . . .

[93] Based upon this inconsistency, Mr. Singh wished to question Det. C. Sherriff, in part, as follows:

Would you agree that there is a difference between these two versions?
Would you agree that according to his notes, Det. C. Santo does not see a hand-to-hand?
Would you also agree that Det. C. Santo does not see money handed to [the accused]?
Isn’t it true that you were a long way from this area?
You never relayed in real time that you witnessed a hand-to-hand, did you?
Would you agree there is more detailed observations in Det. C. Santo’s description than both the ITO and your notes?
It was Det. C. Santo communicating the actual details to you, isn’t it?

[94] The proposed questions for Det. C. Sherriff continued in this vein and dealt with other matters that were recorded in more detail or differently in the notes of Det. C. Santo.

[95] Mr. Singh tendered another batch of questions for vetting (102 of them) dealing with the criminal records of the confidential informants, their motivation, their relationship with police and their reliability.

8. Conclusion re leave to cross-examine

[96] Although I would be interested to hear the answers to Mr. Singh’s questions, my mere curiosity is insufficient to warrant leave being granted. Evidence is needed, not curiosity. Here, there is no evidentiary basis for leave being granted to cross-examine the affiant, Det. C. Sherriff, and insufficient particularization of the basis upon which the ITO may be impugned by way of cross-examination.

[97] The inconsistencies in the 2:44 p.m. observations of the two officers on July 12, 2012, are not material.

[98] I agree with Mr. Singh that the manner in which the ITO deals with the criminal records of Confidential Informants #2-#5 is similar to the “odd wording” identified in R. v. Rocha. However, I am satisfied that disclosing the full criminal records would at least “narrow the pool,” if not identify the informants.

[99] As the accused has not tendered any evidence, we are concerned here with a judicial review of the facial validity of the ITO. Accordingly, I must have regard to the whole document and not focus upon isolated paragraphs. The ITO withstands that scrutiny. There is nothing on its face to suggest the presence of erroneous, misleading or omitted statements.

[100] I think the desire to cross-examine the affiant is based upon speculation that perhaps something useful will be revealed that would undermine the legitimacy of the warrant. The cases hold that this is not a proper basis for the granting of leave. The ITO provides ample evidence that the relevant statutory pre-conditions existed. There is no evidence, and no reasonable likelihood, that cross-examination would discredit the existence of one of the pre-conditions.

[101] Therefore, leave to cross-examine is denied.

IV. SECTION 8

[102] The places searched here were the residence (that is, the apartment) of the accused in the apartment building at 14 Oblate Street and the backyard to that apartment building. Was there a violation of the rights of the accused under s. 8 of the Charter?

[103] I will outline some of the evidentiary and other legal principles to be applied.

1. Privacy interest in backyard of 14 Oblate Street?

[104] An issue to be considered is whether the backyard at 14 Oblate Street was an included place under the search warrant.

[105] Initially, the Crown took the position that the accused did not have standing to assert a s. 8 Charter breach regarding the search of the backyard at 14 Oblate Street because he personally had no reasonable expectation of privacy in relation to the backyard. The accused can only gain access to the exclusionary remedy under s. 24(2) of the Charter by establishing a breach of his Charter rights and, as has been succinctly said many times, s. 8 of the Charter protects people not places. The onus of establishing a reasonable expectation of privacy is on the accused.

[106] The Crown is now satisfied that, because of the small size of the apartment building at 14 Oblate Street, the few residents living there and the nature of the use that all residents of the building were entitled to make of the backyard (to which the landlord was prepared to testify and which the Crown could not refute), the accused did have a reasonable expectation of privacy therein, albeit a diminished expectation. The privacy interest of the accused in the backyard is a diminished one that overlaps the privacy interests of the other occupants of 14 Oblate Street.

[107] The Crown had argued that the search of the backyard was caught by the curtilage principle, described in R. v. Le (T.D.), 2011 MBCA 83, so as to extend the scope of the warrant to that part of 14 Oblate Street. I regard such an argument as recognition of the existence of a privacy interest in the backyard.

[108] In any event, I do not understand the Crown to be pressing the privacy-interest issue, which facilitates my finding that one exists, such that I will treat the search of the backyard and apartment unit occupied by the accused as one event for Charter purposes.

[109] I will now review some of the legal principles governing this much-travelled area of the law.

2. General

[110] Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search and seizure.”

[111] Section 8 is deceptively vague. From the wording, it is not identifiable as a protection of privacy; however, this has been its effect since Hunter v. Southam Inc. (1984), 1984 CanLII 33 (SCC), 14 C.C.C. (3d) 97 (S.C.C.). In that historic decision, the Court reached these conclusions regarding s. 8:

(a) s. 8 offers a broad protection against unreasonable search and seizure;

(b) s. 8 is engaged where there is a reasonable expectation of privacy;

(d) to avoid infringing s. 8, any interference with a reasonable expectation of privacy either must be pursuant to a warrant or must fall within some exceptional circumstance.

[112] Section 8 of the Charter is triggered where it is established that a “search” or “seizure” has occurred. If a search warrant was not properly issued, the court must determine whether the search or seizure was unreasonable under s. 8 and, where unreasonable, decide if evidence should be excluded pursuant to s. 24(2). Breach of s. 8 does not automatically mean that evidence must be excluded from a trial.

[113] The purpose of s. 8 is to protect individuals from unjustified state intrusions upon their privacy. Section 8 does not guarantee individual privacy as inviolable. Instead, it protects one’s reasonable expectation of privacy and it does so only to the point where the right to privacy must yield to proper and effective law enforcement. Section 8 protects people, not places: see Hunter v. Southam Inc., supra, at p. 108.

[114] Determining whether there has been a breach of s. 8, a triggering of s. 24(2) and the need for an exclusion of evidence pursuant to the latter, is a complex, multi-faceted and fact-driven exercise.

3. Search warrants

[115] A search warrant is a fundamental tool of law enforcement. It allows police to discover and preserve relevant evidence: see Canadianoxy Chemicals Ltd. v. Canada (A.-G.) (1999), 1999 CanLII 680 (SCC), 133 C.C.C. (3d) 426 at para. 22 (S.C.C.). However, the fact that warrants are important to police investigation must be balanced with a recognition of the conflicting privacy interests of individuals. Such a balance is achieved by means of the prior judicial authorization required before search warrants are issued. It was put this way in Hunter v. Southam Inc., supra, at p. 110:

The purpose of the requirement of prior authorization is to provide an opportunity, before the event, for the conflicting interests of the state and the individual to be assessed, so that the individual’s right to privacy will be breached only where the appropriate standard has been met, and the interests of the state are demonstrably superior.

[116] As a search warrant was issued here, the accused bears the burden of demonstrating that the ITO was insufficient: see R. v. Campbell, 2011 SCC 32, [2011] 2 S.C.R. 549 at para. 14.

[117] A Justice of the Peace who issues a search warrant is performing a judicial act: see A.-G.(N.S.) v. MacIntyre (1982), 1982 CanLII 14 (SCC), 65 C.C.C. (2d) 129 at 141 (S.C.C.).

[118] A search warrant will stand or fall on the supporting ITO as amplified on the pre-trial application, including testimony from the preliminary hearing.

4. Presumptive validity

[119] A search warrant is considered to be presumptively valid. The Crown need not prove validity. It is for the defence to challenge the warrant and demonstrate its deficiencies. This is done by means of a Charter application: see R. v. Feldman (1995), 1994 CanLII 37 (SCC), 93 C.C.C. (3d) 575 (S.C.C.).

5. Some legal principles

(a) R. v. Edwards

[120] In R. v. Edwards (1996), 1996 CanLII 255 (SCC), 104 C.C.C. (3d) 136 at 150-51 (S.C.C.) we find the proper general framework for a s. 8 inquiry: (Underlining added)

(a) A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed.

(b) Like all Charter rights, s. 8 is a personal right. It protects people and not places.

(c) The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated.

(d) As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably.

(e) A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.

(f) The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:

(i) presence at the time of the search;

(ii) possession or control of the property or the place searched;

(iii) ownership of the property or item;

(iv) historical use of the property or item;

(v) the ability to regulate access, including the right to admit or exclude others from the place;

(vi) the existence of a subjective expectation of privacy; and

(vii) the objective reasonableness of the expectation.

(g) If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.

(b) reasonable expectation of privacy

[121] In R. v. Silveira, 1995 CanLII 89 (S.C.C.) at para. 148, the Court stated: “. . . it is hard to imagine a more serious infringement of an individual’s right to privacy” [than a search of their dwelling-house] . . . The unauthorized presence of agents of the state in a home is the ultimate invasion of privacy.”

[122] The search here being in respect of a private residence, there is no issue as to the reasonable expectation of privacy.

(c) reasonable search

[123] A search or seizure is reasonable, “if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable”: see Collins v. The Queen (1987), 1987 CanLII 84 (SCC), 33 C.C.C. (3d) 1 at 14 (S.C.C.).

(d) evidence obtained by breach eligible to be excluded

[124] Only evidence obtained by the breach of personal rights under s. 8 is eligible to be excluded pursuant to s. 24(2). Thus, there must be a connection between the Charter breach and the evidence sought to be excluded sufficient to justify the exclusion. The connection, for example, may be temporal as it was in R. v. Grant (1993), 1993 CanLII 68 (SCC), 84 C.C.C. (3d) 173 (S.C.C.).

(e) looking for deficiencies in the ITO

[125] Primarily, what a reviewing court is looking for are deficiencies in the ITO relating to the facts: the overstating of facts; the misstating of facts; or the failure to state material facts. Any one of these deficiencies may lead to a finding that the search warrant is invalid.

(f) after improper evidence excised, could the rest support issuance?

[126] Evidence that is found to have been improperly before the issuing court should be excised by the reviewing court in determining the sufficiency of the ITO: see R. v. Plant (1993), 1993 CanLII 70 (SCC), 84 C.C.C. (3d) 203 at 216 (S.C.C.). Once the offending evidence has been excised or expunged, the question becomes whether that which remains could properly result in the issuance of the warrant. In R. v. Grant, supra, at p. 195, Sopinka J. stated:

However, in circumstances such as the case at bar where the information contains other facts in addition to those obtained in contravention of the Charter, it is necessary for the reviewing courts to consider whether the warrant would have been issued had the improperly obtained facts been excised from the information sworn to obtain the warrant: Garofoli, supra. In this way, the state is prevented from benefiting from the illegal acts of police officers, without being forced to sacrifice search warrants which would have been issued in any event.

(g) reviewing court not to substitute own view or weigh evidence

[127] The test to be applied by a court, when reviewing the sufficiency of an ITO, was laid down in R. v. Garofoli (1990), 1990 CanLII 52 (SCC), 60 C.C.C. (3d) 161 at 188 (S.C.C.): (underlining added)

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, nondisclosure, 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.

[128] Thus, it is not the responsibility of the reviewing court to weigh evidence to determine whether the search warrant should have been issued: see R. v. Berger (1989), 1989 CanLII 4468 (SK CA), 48 C.C.C. (3d) 185 at 188 (Sask. C.A.).

[129] “. . . the purpose of a Garofoli review is . . . [for] the reviewing court [to inquire] about whether there was any basis on which the authorizing court could have granted the order”: see R. v. McGee et al., 2009 CanLII 62069 (ON SC) at para. 10.

[130] Sometimes it is difficult (and almost unnatural) to ask a trial judge to resist substituting his or her opinion for that of the issuing justice; nevertheless, no such substitutions are permitted.

(h) reviewing court not to consider matter de novo

[131] The reviewing court does not consider de novo whether the search warrant should have been issued: see R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.).

(i) totality of circumstances to be considered

[132] The reviewing court must look at the totality of the circumstances that were before the issuing court: see R. v. Borowski (1990), 1990 CanLII 10973 (MB CA), 57 C.C.C. (3d) 87 at 91 (Man. C.A.). It was put this way by Wilson J., in R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 at 215 (S.C.C.):

. . . First, was the information predicting the commission of a criminal offence compelling? Secondly, where that information was based on a ‘tip’ originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making a decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.’s view that the ‘totality of the circumstances’ must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

(j) reasonable and probable grounds

[133] Prior authorization, where it is feasible to obtain, is a pre-condition for a valid search and seizure. Reasonable and probable grounds, established upon oath, to believe that an offence has been committed or is being committed and that there is evidence to be found at the place of the search, constitutes the minimum standard (consistent with s. 8 of the Charter) for authorizing a search and seizure: see Hunter v. Southam Inc., supra, at p. 115.

[134] Determining the existence of reasonable and probable grounds for the search warrant cannot be delegated to the police officer applying for the warrant. It is not enough that the officer swears he has reasonable and probable grounds for believing the facts he or she states to be true; there must be facts given on oath from which the issuing court can be judicially satisfied that there are rational grounds for the belief: see R. v. Pastro (1988), 1988 CanLII 214 (SK CA), 42 C.C.C. (3d) 485 at 511 (Sask. C.A.)

[135] The appropriate standard of proof required of a police officer, to establish that an offence has been committed and that there is evidence to be found at the place of the search, is “reasonable probability” rather than “proof beyond a reasonable doubt” or “prima facie case”: see R. v. Debot, supra, at p. 213.

[136] The standard of proof required to obtain a search warrant was described by Dickson J., in Hunter v. Southam Inc., ibid: (Underlining added)

The State’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshold for subordinating the expectation of privacy to the needs of law enforcement.

(k) no fixed formula for reasonable grounds

[137] There is no fixed formula for determining what constitutes reasonable grounds to believe. Whether grounds exist depends on the factual circumstances present in each case. No one fact can predominate. As I have already mentioned, the sufficiency of the grounds will depend on the totality of the circumstances.

[138] The concept of reasonable grounds involves the application of common sense, as well as practical and non-technical principles. The process does not deal with hard certainties, but with probabilities. The concept is a fluid one, turning on an assessment of probabilities in particular factual situations; it is not readily, or even usefully, reduced to a neat set of legal rules.

(l) subjective and objective basis to believe

[139] The police officer swearing the affidavit in support of an application for a search warrant must have both a subjective and an objective basis to believe that reasonable grounds exist for the search.

(m) mere suspicion insufficient

[140] Mere suspicion, on the part of the police, that an offence has been committed is not sufficient. The ITO must disclose the cause of the suspicion before the issuing court can be satisfied that reasonable grounds exist for believing that there is, in the place to be searched, evidence of the alleged offence: see R. v. Turcotte (1987), 1987 CanLII 984 (SK CA), 39 C.C.C. (3d) 193 at 205 (Sask. C.A.).

[141] Where the police have nothing but suspicion and no legal way to obtain other evidence, they must leave the suspect alone: see R. v. Kokesch, (1990), 1990 CanLII 55 (SCC), 61 C.C.C. (3d) 207 at 227 (S.C.C.).

[142] It is not sufficient if there is only a possibility of finding evidence. This would be “a very low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions”: see Hunter v. Southam Inc., supra, at pp. 114-5.

(n) ex post facto justification prohibited

[143] The results of a search cannot be used to show the reliability of the evidence that was before the issuing court. Ex post facto justification of searches by their results is not permitted: see R. v. Kokesch, ibid.

(o) full, fair and frank disclosure

[144] Full, fair and frank disclosure is required in the ITO: see R. v. Lukaniuk, [1989] O.J. No. 33 (C.A.); as is particularity. This is because search warrants usually are obtained ex parte. Disclosure should include facts: that are exculpatory; that reveal police misconduct; and, generally, that might affect the reliability of the reasonable and probable grounds held by the officer seeking the warrant.

[145] Without a full and fair outline of all of the information that the police have or that is reasonably within their grasp, how is the issuing justice able to act judicially?

[146] Nevertheless, the material in support of a warrant is not required to set out every “minute step taken in the course of the investigation”: see C.B.C. v. New Brunswick (A.-G.) (1991), 1991 CanLII 50 (SCC), 67 C.C.C. (3d) 544 at 562 (S.C.C.).

(p) hearsay permitted

[147] The police officer seeking the warrant is entitled to rely upon hearsay and to make statements that are not based on personal knowledge. However, he or she should clearly state the source of the hearsay with sufficient particulars in order that the issuing court is able to assess its reliability.

(q) erroneous material may colour the rest

[148] “Where . . . the erroneous . . . material [in an ITO] is sufficiently misleading, its character may colour the material that remains”: see R. v. Sismey (1990), 1990 CanLII 1483 (BC CA), 55 C.C.C. (3d) 281 (B.C.C.A.).

(r) omission of relevant information

[149] The omission of relevant information might well give a wrong impression to the issuing justice, leading to the issuance of a search warrant in circumstances where it ought not to have been issued.

(s) amplification on review

[150] Erroneous information before the issuing court (so long as it is not part of a deliberate attempt by the police to mislead) may be amplified on review, thereby permitting the error to be corrected: see R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 at 556 and 568 (N.S.C.A.). There, the Court further stated at p. 568: (Emphasis in original text)

[I]n . . . challenging a warrant issued pursuant to an Information to Obtain which is valid and adequate on its face, evidence is admissible to explain non-deliberate errors or omissions on the review provided that the information was known to the police officers involved in obtaining the warrant at the time it was obtained and subject, of course, to the requirement that unconstitutionally obtained evidence cannot be considered. Although it is not, strictly speaking, necessary for me to do so for the purposes of this case, I am inclined to accept the Crown’s position that deliberately false and misleading material placed before the authorizing justice is not subject to amplification.

[151] Where a misstatement or omission in the ITO is the product of inadvertent or good-faith police error, the Crown may rely upon the “amplified record” (that is, the record disclosed through examination of witnesses in the voir dire or pre-trial application and at the preliminary hearing) to “correct” the document.

[152] A summary of some of the principles (drawn from such cases as R. v. Garofoli, supra,[^2] R. v. Araujo, supra,[^3] and R. v. Allain (1998), 1998 CanLII 12250 (NB CA), N.B.J. No. 436 (N.B.C.A.)) applicable when determining whether the record that was before the issuing or authorizing court should be permitted to be amplified on review,[^4] is as follows:

(a) Only erroneous or false information need be excluded when considering whether there was any reasonably believable evidence that could have formed a basis for issuing the warrant or giving the authorization.

(b) Where sufficient reliable information remains after erroneous or false information has been excised, there is no need to amplify the record in order for the warrant or authorization to be sustained.

(c) Where erroneous or false information stems from inadvertent errors (that is, errors with no deliberate attempt to mislead), it can be amplified and corrected.

(d) Where erroneous or false information is the result of intentional errors, fraudulent misrepresentations or deliberate attempts to mislead the issuing or authorizing court, the same cannot be corrected by the amplification process.

(e) While amplification cannot go so far as to remove the requirement that the police must make their case to the issuing or authorizing court, it can serve to correct minor, technical or other inadvertent errors in the supporting material. In this way, amplification can ensure that minor defects in form do not triumph over substance.

[153] The language used in an ITO is important. Boiler-plate phrases such as “a reliable source” and “the investigation has revealed,” are to be avoided. In R. v. Hosie (1996), 1996 CanLII 450 (ON CA), 107 C.C.C. (3d) 385 at 399 (Ont. C.A.), Rosenberg J.A. said:

Blind reliance upon ritualistic phrases without regard to the facts of the particular case robs the judicial officer of the ability to perform [his or her] vital function in the administration of justice.

[154] It is to be remembered that the purpose of the ITO is to allow the issuing court to decide for itself whether the purported reasonable and probable grounds, in fact, exist.

(u) errors not necessarily fatal

[155] Although much is desired from an ITO, perfection is not expected. Errors are not necessarily fatal. Errors, “whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the [search warrant] and do not by themselves lead to automatic vitiation”: see R. v. McClure, [2001] O.J. No. 13 at para. 47 (S.C.J.).

[156] The ultimate question is whether, after excising all improper material from the ITO, there remains at least some evidence reasonably capable of belief on the basis of which the warrant could have issued.

[157] However, as to the form of the ITO itself and the usual appendices, the reviewing court must not be overly picky. In R. v. Dellapenna (1995), 1995 CanLII 428 (BC CA), 31 C.R.R. (2d) 1 at 13 (B.C.C.A.), it as stated:

While a skilled conveyancer would not draft a document in this form, constables are not to be held to the standard of skilled conveyancers.

[158] I have reached the point where I am starting to disagree with that statement. When one considers that the enormous resources expended in drug investigations and prosecutions can be wasted because of a poorly crafted ITO, the expense and effort to transform police officers into “skilled conveyancers” would be reasonable and doable, respectively.

(v) unconstitutional conduct

[159] Evidence that is obtained by unconstitutional means must be excised from the ITO by the reviewing court: for example, where police trespass upon private property to make visual observations that, in turn, are used to support a warrant or authorization: see R. v. Kokesch, supra; R. v. Grant, supra; R. v. Plant, supra; and R. v. Wiley (1993), 1993 CanLII 69 (SCC), 84 C.C.C. (3d) 161 (S.C.C.).

(w) evidence of a tip as reasonable and probable grounds

[160] In the case at bar, police were relying on information provided to them by five informants.

[161] It is well-settled law that “the test for sufficiency of an ITO that is based on an informer’s tip is . . . dependent upon whether the tip is compelling, whether the informer is credible and whether the tip has been confirmed by independent police investigation . . . weaknesses in one area may be compensated by strengths in the other two areas: see, for example, R. v. Rocha (2012), 2012 ONCA 707, 112 O.R. (3d) 742 (C.A.) at para. 16, relying upon earlier decisions.

[162] “The police will rarely be able to confirm the tip to the extent of having observed commission of the offence and that level of confirmation is not required: see R. v. Rocha, supra, at para. 21.

[163] “As a general rule, an informer’s report limited to an allegation of criminal wrong-doing by an identified party is, in and of itself, insufficient to discharge the reasonable grounds standard of persuasion”: see R. v. Okeke, [1999] O.J. No. 3693 (S.C.J.) at para. 24.

[164] In R. v. Garofoli, supra, at p. 191, Sopinka J. summarized certain propositions as having been established in earlier cases in respect of tipsters or informants:

(a) 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.

(b) 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:

(i) the degree of detail of the ‘tip’;

(ii) the informer’s source of knowledge;

(iii) indicia of the informer’s reliability such as past performance or confirmation from other investigative sources.

[165] Accordingly, the particulars from a tipster must be set out in the ITO and must be sufficient to allow the issuing justice to determine whether there are reasonable grounds for believing that evidence of a crime exists in the place to be searched.

[166] The following passage appears in the judgment of Sopinka J. in R. v. Plant, supra, at pp. 215-16:

In R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3d) 193 at p. 215, this court determined that the reliability of the tip of an informant depends on an assessment of the totality of the circumstances and specified three areas of concern:

First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a ‘tip’ originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? Each factor does not form a separate test. Rather, it is the ‘totality of the circumstances’ that must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

[167] Although R. v. Debot concerned the decision of police to conduct a warrantless search pursuant to the tip of a known informant, the factors enunciated demonstrate principled concerns with the use of informants in general.

[168] While on this point, it might be useful to set out a portion of the Reasons of Martin J.A., in R. v. Debot, (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 at 218 (Ont. C.A.), subsequently approved by the Supreme Court of Canada, in R. v. Debot, supra:

Unquestionably, information supplied by a reliable informer, even though it is hearsay, may in some circumstances provide the necessary reasonable grounds to believe, to justify the granting of a search warrant . . . On an application for a search warrant the informant must set out in the Information [to Obtain] the grounds for his or her belief in order that the justice may satisfy himself or herself that there are reasonable grounds for believing what is alleged . . . Consequently, a mere statement by the informant that he or she was told by a reliable informer that a certain person is carrying on a criminal activity, or that drugs would be found at a certain place would be insufficient basis for the granting of the warrant. The underlying circumstances disclosed by the informer for his or her conclusion must be set out, thus enabling the justice to satisfy himself or herself that there are reasonable grounds for believing what is alleged . . . Highly relevant to whether information supplied by an informer constitutes reasonable grounds to justify a warrantless search or arrest without warrant are whether the informer’s tip contains sufficient detail to ensure it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance. I do not intend to imply that each of these relevant criteria must be present in every case provided that the totality of the circumstances meets the standard of the necessary grounds for relief.

[169] Where a tipster provides information to the police, the officer seeking to obtain a search warrant must set out, in as much detail as possible, the basis of the tipster’s knowledge. As well, the officer must substantiate the credibility, veracity or reliability of the tipster and disclose how knowledge of any facts was acquired by the tipster: see R. v. Pastro, supra, at pp. 517-18.

[170] The cases seem to support the general proposition that failure to disclose the basis upon which an informer came to his or her knowledge is a defect in substance sufficient to render a search warrant invalid.

[171] The level of verification required by the police in respect of a tip may be higher where the informer is one whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater: see R. v. Debot, supra, at p. 2l8. In such circumstances, the validity of the warrant depends upon the sufficiency of the police investigation to corroborate the informer’s tip: see R. v. Hosie (1996), 1996 CanLII 450 (ON CA), 107 C.C.C. (3d) 385 at 392 (Ont. C.A.).

[172] “Absent confirmation of details, other than details which describe innocent and commonplace conduct, information supplied by an untested, anonymous informant cannot, standing alone, provide reasonable grounds for an arrest or search”: see R. v. Lewis (1998), 1998 CanLII 7116 (ON CA), 122 C.C.C. (3d) 481 at 490 (Ont. C.A.).

[173] “In the case of second-hand information, the justice must be satisfied that the information communicated was true and accurate. He must therefore examine the information provided to the informant by the source to determine the means by which he came into the knowledge, the reliability and veracity of the informant. There must be sufficient evidence to enable the justice to test the reliability of the information to be satisfied that the requisite grounds exist for the granting of the warrant”: see R. v. Pastro, 1988 CanLII 214 (SK CA) at page 11; 42 C.C.C. (3d) 485 (Sask. C.A.).

[174] In the circumstances of “an anonymous tip or untried informant . . . the quality of the information and corroborative evidence may have to be such as to compensate for the inability to assess the credibility of the source”: see R. v. Debot, supra, at p. 217.

[175] Thus, compelling particulars from a tipster, if shown to be reliable, may form part of the reasonable grounds in the ITO.

[176] When all has been said, tips from informants vary greatly in their value and reliability.

(x) protecting the identity of informants

[177] When dealing above with the issue of leave to cross-examine, I addressed the matter of informants.

5. Section 8 conclusion

[178] The evidence of the confidential informants is important in this case.

[179] Confidential Informants #1, #2 and #3 are reliable and credible based upon past performance with police. The information that they gave to police is compelling.

[180] Although Confidential Informants #4 and #5 have never previously supplied information to police, this does not mean that they are not to be believed. Their credibility is established to some degree by the fact that they are generally corroborative of the other confidential informants.

[181] Mr. Singh, counsel for the accused, submits that police did not sufficiently investigate and corroborate the information provided by the confidential informants. For example, he argues that the surveillance at 14 Oblate Street was too brief. However, Mr. Anger, for the Crown, correctly points out that the accused did his trafficking elsewhere. Further surveillance at 14 Oblate Street would have yielded little, if any, corroborative evidence.

[182] Looking at the ITO in its entirety, it cannot be said that any facts were overstated or otherwise misstated or that any material facts were omitted. I find that there was full, fair and frank disclosure. There is nothing to be excised from the ITO.

[183] It is always important for a reviewing court to remember its circumscribed function where determining the sufficiency of an ITO. I am not to substitute my view for that of the issuing justice. This is not a hearing de novo.

[184] There was ample basis for the Justice of the Peace to have issued the search warrant for apartment #2. I think that the backyard, in the circumstances of this case, should be considered as covered by the warrant, on the curtilage principle.

[185] In the end, it is my conclusion that the police conducted an investigation, including physical surveillance, that corroborated confidential informant-based information and demonstrated a link between the accused and drug trafficking. The Information to Obtain was sufficient to justify issuance of the search warrant.

V. SECTION 24(2)

[186] Section 8 was not breached. Thus, there is no need for me to go on to consider s. 24(2) of the Charter.

[187] However, should I be wrong in my view that the backyard was not covered by the search warrant, I would find that the search of the backyard was reasonable and that to admit into evidence the items seized would not bring the administration of justice into disrepute. Indeed, I think that to exclude the items found in the backyard would have that effect.

VI. RESULT

[188] The application of the accused is dismissed. I thank Mr. Anger and Mr. Singh for their meticulous submissions.

The Honourable Mr. Justice J.W. Quinn

RELEASED: March 3, 2015

CITATION: R. v. Lindsay, 2015 ONSC 1369

COURT FILE NO.: 1987/13

DATE: 2015/03/03

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and -

IAN LINDSAY

Applicant

REASONS FOR JUDGMENT

J.W. Quinn J.

Released: March 3, 2015

[^1]: This statement has been repeated many times, such as in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 at para. 45.

[^2]: Although R. v. Garofoli was concerned with a wiretap authorization, it is applicable to cases involving search warrants.

[^3]: R. v. Araujo also involved a wiretap authorization, but the comments of the Court apply equally to cases dealing with search warrants.

[^4]: It seems that the concept of amplification was first articulated by Sopinka J. in R. v. Garofoli, supra, where, at p. 188, His Lordship stated: (Emphasis added) “If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge . . .”

ONTARIO

SUPERIOR COURT OF JUSTICE

I. INTRODUCTION

II. THE INFORMATION TO OBTAIN (“ITO”)

III. LEAVE TO CROSS-EXAMINE

1. The Garofoli test

2. Evidentiary Burden

3. Sub-affiants

4. Confidential informants

(a) confidential informant privilege

(b) the risk of identifying the confidential informant

(c) reliability

(d) motivation

(e) striking a balance

5. Criminal record of a confidential informant

6. Summary of leave-to-cross-examine principles

7. The proposed questions

8. Conclusion re leave to cross-examine

IV. SECTION 8

1. Privacy interest in backyard of 14 Oblate Street?

2. General

3. Search warrants

4. Presumptive validity

5. Some legal principles

(a) R. v. Edwards

(b) reasonable expectation of privacy

(c) reasonable search

(d) evidence obtained by breach eligible to be excluded

(e) looking for deficiencies in the ITO

(f) after improper evidence excised, could the rest support issuance?

(g) reviewing court not to substitute own view or weigh evidence

(h) reviewing court not to consider matter de novo

(i) totality of circumstances to be considered

(j) reasonable and probable grounds

(k) no fixed formula for reasonable grounds

(l) subjective and objective basis to believe

(m) mere suspicion insufficient

(n) ex post facto justification prohibited

(o) full, fair and frank disclosure

(p) hearsay permitted

(q) erroneous material may colour the rest

(r) omission of relevant information

(s) amplification on review

(t) blind reliance on ritualistic phrases

(u) errors not necessarily fatal

(v) unconstitutional conduct

(w) evidence of a tip as reasonable and probable grounds

(x) protecting the identity of informants

5. Section 8 conclusion

V. SECTION 24(2)

VI. RESULT

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 6

Legal Tests 3

Legislation 2