R. v. Welcome, 2015 ONSC 201

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. Welcome, 2015 ONSC 201

COURT FILE NO.: CRIMJ(P) 531/13

DATE: 2015 01 09

BETWEEN:

HER MAJESTY THE QUEEN

C. Henderson for the Crown

• and -

Kemando Welcome

B. Crothers for the Defendant

HEARD: January 6-8, 2015

Ruling on Admissibility of Firearm Seized Pursuant to Search Warrant

Baltman J. (orally)

Background

1After receiving information from a confidential informant, police obtained a warrant to search the apartment where the Defendant lived. There the police found a .22 calibre handgun, with ammunition. The Defendant has been charged with illegal possession of a handgun and several related offences.

2The Defendant maintains there were insufficient grounds for a Justice of the Peace to issue a warrant in this case, and that consequently the resultant search of his home was a breach of s. 8 of the Charter of Rights and Freedoms. He argues that the gun should not be admitted into evidence under s. 24 (2) of the Charter.

The Legal Framework

The Requirements for Authorizing the Issuance of a Warrant

3The Justice issuing the warrant must have reasonable grounds to believe that an offence has been committed. The material in support of the warrant must demonstrate a reasonable probability that evidence of the crime will be obtained through the search: R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140.

4Where the application for the warrant is based largely on information coming from a confidential informant (CI), the court must make three inquiries:

• Was the information predicting the crime compelling?

• Was the source of the information credible?

• Was the information corroborated by the police before conducting the search?

5These are not discrete inquiries; a judge is to consider the “totality of the circumstances”, such that weakness in one area may be compensated for by strength in another. Thus where, as in this case, police rely on information from a previously untried confidential source, the quality of the information and the degree of corroboration may compensate for the inability to properly assess the source’s trustworthiness: Debot; R. v. MacDonald 2012 ONCA 244.

6In any case, police are not obliged to confirm the very criminality alleged by the CI; they do not even have to establish a prima facie case of possession of the firearm in issue. A credibly based probability is sufficient: R. v. Iyeke 2014 ONSC 2208, para. 54; R. v. Sanchez, 1994 5271 (ON SC), [1994] O.J. No. 2260 (Ont. Gen. Div.) para. 28.

7A judge reviewing the authorization of the issuance of a warrant has a limited mandate. Where, as here, the challenge is essentially to the facial validity of the affidavit supporting the warrant, the reviewing judge does not go behind the information disclosed, or substitute her view for that of the authorizing judge. Nor does she review the authorization de novo. The test as established in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, para. 56, is now well known: if, based on the record which was before the authorizing judge as amplified on review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then she should not interfere.

Application of the Step Six Garofoli Procedure

8As part of the disclosure in this case, the Crown provided defence with a copy of the Information to Obtain (ITO) the search warrant. In accordance with the law governing informant privilege, and the Crown’s consequent duty to protect the identity of the informant, portions of the ITO were redacted: R. v. Leipert (1997), 1997 367 (SCC), 112 C.C.C. (3d) 385 (S.C.C.).

9The Crown concedes that the ITO is so extensively vetted that, on its face, it lacks sufficient grounds to be able to support the issuance of a search warrant. The Crown applied to have me consider the redacted portions in order to support the search warrant, along with a “judicial summary” of the redactions. This is known as the “step six” procedure, as outlined at para. 79 of Garofoli, where Sopinka J. stated:

The Trial Judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function.

10The judicial summary has two important purposes: first, to provide the accused with as much information as possible about the nature of the redacted materials, so that he can participate meaningfully in the process (Debot), and second, at the same time, to maintain secret the identity of the confidential informant (Leipert).

11As noted by Code J. in R. v. Learning, 2010 ONSC 3816, at para. 103, this is a “rational solution” to the conflict “between the demands of Debot and the dictates of Leipert”. In R. v. Rocha 2012 ONCA 707 our Court of Appeal encouraged the use of “step six” more frequently, noting it is the “only legal mechanism available to resolve the dilemma created by the competing demands of the Crown’s obligation to provide reasonable and probable grounds for a search and its obligation to protect the identity of confidential informants” (para. 54). Since Rocha, numerous judges have taken up the challenge: R. v. Boussoulas 2014 ONSC 5542 (K.L. Campbell J.); Iyeke (M.G. Quigley J.); R. v. Farrugia 2012 ONCJ 830 (R. Kelly J.), et al.

12In that vein, and with the consent of defence counsel, Crown counsel drafted a “proposed” judicial summary for my consideration. Alongside that I also reviewed the compIete, original and unredacted ITO. I then ruled, on a preliminary basis, that the summary was both a) accurate, and b) sufficient to allow the defence to challenge the excised information. A copy of the summary was then provided to defence counsel for his review.

13Next, with the consent of all counsel, I agreed to re-open the issue of the adequacy of the judicial summary, so that defence could make submissions on that point. Defence counsel argued that the summary was inadequate, as it gave him insufficient additional information upon which to challenge the warrant. I rejected his argument, as in my view the summary provided considerable and meaningful additional information beyond the redacted ITO, sufficient to permit him to properly challenge it.

14Importantly, in performing that exercise, I kept in mind that the Garofoli “step six” procedure does not envisage extensive detail in the summary. As Sopinka J. observed, a trial judge should accede to the Crown’s request to consider excised materials if she is satisfied that the accused is “sufficiently aware of the nature of the excised material to challenge it in argument or by evidence” (emphasis added). Accordingly, it is not the specific details of the redacted materials that should be included in the summary, but rather a description of the “nature” or type of information that has been excluded: Boussoulas, para. 68;

15In this case, I concluded that the summary provided the Defendant with a lot of important information relevant to any challenge he might mount to the ITO. In particular, the summary confirmed that the redacted portions of the ITO contained the following information:

• The informant’s knowledge of, and relationship to, the target of the search warrant;

• The length of time that the informant has known the target;

• How the informant and the target first came into contact with one another;

• The frequency of the contact between them;

• A detailed basis for the informant’s belief that the target was in possession of a handgun in his apartment; in other words, precisely how the informant acquired that knowledge;

• Whether the informant’s knowledge is first-hand or hearsay and, if hearsay, the source of that information;

16In addition, the summary confirms that the redacted information is specific, precise and detailed. Finally, it establishes that the information is neither remote nor stale.

17In sum, while the judicial summary does not explain in detail how the CI learned that the Defendant was in possession of a firearm, it does demonstrate that the CI had an informed basis for that belief, the precise details of which were before the JP when he evaluated the unredacted ITO.

18For those reasons, I concluded that the judicial summary provided an adequate substitute for full disclosure.

Were there Sufficient Grounds to Issue the Warrant?

19I turn now to consider whether the original, unredacted ITO disclosed reasonable and probable grounds and whether, in particular, the CI’s information was compelling, credible and corroborated. Given that some of the important information that I have considered remains redacted in order to protect the anonymity of the informant, I am limited in my ability to explain my findings. This is particularly so with respect to the first inquiry, namely whether the information is compelling.

20What I can say is that the ITO is highly compelling, containing significant detail regarding how and when the CI came to know the Defendant, the nature of their relationship and the frequency of their contact. Importantly, it identifies with considerable specificity the basis for the informant’s knowledge that the Defendant was in possession of a handgun and where it was located. Moreover, the information given is internally consistent; in other words, the report overall makes sense. Finally, the information is current and was acted upon promptly.

21For all those reasons, I find the ITO to be very compelling.

22As for the credibility component, the result is very mixed. As the Agreed Statement of Fact makes clear, the CI is a first time informant, and therefore has no proven track record of reliability. I am somewhat troubled by the wording used in this regard in the ITO; the topic is addressed under the heading “Past Information with proven results”, and states that the CI “has proven to be reliable through corroboration of the detail of the information provided”.

23In fact, the CI was not part of any “past” investigation; this was the only one. And, as I make clear below, at that point only some of the information provided had been corroborated by the police, and even that was mostly biographical information rather than anything that supported criminality. However, in this case I consider that wording to be more reflective of sloppy or rushed draftsmanship rather than a deliberate attempt to mislead, particularly given that the remainder of the ITO refers to the CI solely in the context of this investigation and carefully sets out what information from the CI has been corroborated. When the ITO is considered in its totality I believe there is no risk that the issuing justice would have been misled by the statement.

24The redacted ITO also establishes that the CI has never been charged with any “obstruct or perjury related offences”. And, as noted in the summary, the unredacted version addresses whether the informant has a criminal record, or was before the court on any charges at the time the warrant was sought.

25The redacted ITO further advises that the CI is “monetarily motivated”, and that s/he understands that a financial reward is contingent on a “successful result” to the investigation. However, there is no indication the CI was warned about the consequences of deliberately misleading the police. This arrangement therefore cuts both ways; it provides an incentive for truth but no deterrence for lies.

26All in all, I assess the CI’s credibility here as modest; s/he has some motivation to give reliable information but is largely an unproven first time informant.

27Finally, on the issue of corroboration, the ITO provides some assurance, albeit limited. The CI’s physical description of the target, including his tattoo, was accurate, as was a nickname that he goes by online. Through their own observations the police verified that the CI correctly identified the target’s vehicle and residence, including how he accessed his apartment within the building.

28I recognize that this information is of a general nature, which may be readily available; it does not corroborate the specific element of gun possession. However, when dealing with a possessory offence of this nature, where the weapon in question is often concealed from public view, that is not surprising. The courts have made it clear that corroboration of otherwise innocent details can serve to enhance the overall reliability of the informant: R. v. Caissey, 2007 ABCA 380, [2007] A.J. No. 1342 (C.A.), aff’d, 2008 SCC 65, [2008] 3 S.C.R. 451.

29When I consider the information from the CI in its totality, I find that while it was only modestly credible it was highly compelling and somewhat corroborated. On balance, even after factoring in the deficiencies I have identified, the information before the JP clearly allowed him to conclude that there were reasonable and probable grounds to believe that a handgun would be found in the Defendant’s residence.

30I am therefore satisfied the JP had sufficient grounds upon which to issue the warrant. However, in case I am wrong in that regard and there was a s.8 breach, I will briefly address whether the evidence should be excluded under s. 24(2) of the Charter.

Assuming there was a s. 8 breach, should the evidence be excluded under s. 24(2)?

31Applying the analysis from R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, under the first branch if there was a s. 8 breach, it was not serious. The police did their best to corroborate what they could. The misstatements I have identified in the ITO were not deliberate, and when seen in the context of the entire document would not have misled the JP. This factor favours inclusion.

32On the second branch of Grant, the Crown rightly accepts that the search of the Defendant’s residence amounts to a serious invasion of his privacy. This factor therefore supports exclusion of the evidence.

33On the third branch, the evidence (a handgun and ammunition) is reliable and necessary for the Crown to prove a serious crime. Consequently, there is a strong societal interest in having the case tried on its merits.

34When balancing all three factors, I am satisfied that the gun should be admitted into evidence.

Conclusion

35For the preceding reasons, I find a) there was no breach of s. 8; b) even if there was, the evidence should not be excluded under s. 24(2).

Baltman J.