ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-15-40000194-0000

DATE: 20150929

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHAUN BLAKE

Applicant

Phil Tsui, for the Crown

Trevin David, for the Defendant/Applicant

HEARD: September 10, 2015 at Toronto, Ontario.

RULING Re: Application to terminate Sealing Order under s. 487.3(4) of the Criminal Code

M. G. Quigley, J.

Background

[1] On August 19, 2014, the applicant, Sean Blake, was arrested and charged with firearm possession offences. Those charges arose from the discovery of a firearm on the execution of a search warrant at 2304 Weston Rd., Apt. 501 in Toronto, Ontario. Prior to the authorization and execution of the search warrant on that date, the police had obtained an earlier search warrant that made reference to the applicant. It was authorized on August 4, 2014, with respect to a dwelling unit located at 302 Grandravine Dr., Unit 159 in Toronto.

[2] Although it was authorized and issued by Justice Brownell as a telewarrant on August 4, 2014, that earlier warrant was never executed. It lapsed because, as it turned out, the Toronto Caribana Festival and the July 1 Canada Day statutory holiday intervened. As well, additional search warrants executed by members of the Guns and Gangs Unit, and subsequent information received and its subsequent investigation, caused police to obtain a new warrant that included that information and thus superseded the initial August 4, 2014 warrant. Two weeks later, the August 19, 2014 search warrant was executed based on the Information to Obtain (“ITO”) sworn by Detective Constable Amanda Annetts. When the earlier unexecuted August 4, 2014 warrant was issued, however, it was subject to a Sealing Order. That Sealing Order remains in place to this day.

[3] Shaun Blake's trial will commence on September 21, 2015 before a judge and jury. In this application, he seeks to terminate the Sealing Order issued by Justice of the Peace Brownell on the basis that the preconditions justifying the continuance of that order under section 487.3(1) of the Criminal Code, R.S.C., 1985, c. C-46, and referenced in section 487.3 (2), no longer exist.

[4] Defence counsel claims that there is no longer any need for the Sealing Order to remain in place, but that there is a direct connection between the material contained in the ITO for that earlier warrant, and the charges that have been brought against Shaun Blake. The August 4, 2014 search warrant was the product of the same investigation with respect to Mr. Blake by the same investigating force, the Toronto Police Gun and Gang Unit, on the same type of charges that Mr. Blake faces, but at the 302 Grandravine Dr. Unit 159 address that was one of the two addresses referenced in the August 19, 2014 search warrant. As defence counsel notes, the Grandravine Dr. address referenced in the August 4 warrant and again included in the August 19 ITO. However, it is evident from the ITO that the existence of that prior authorized search warrant was clearly known to Justice of the Peace Hendricks on August 19, 2014 when he authorized the second warrant.

[5] Defence counsel claims that what was contained in the earlier warrant and the earlier ITO is critical to the applicant's right to make full answer and defence. He claims to need to see how the police characterized information gleaned from the confidential informant or informants in that earlier ITO. Defence counsel argues that if there were to be a variation or deviation found in the earlier warrant from what was contained in the August 19, 2014 ITO, that would be important to an assessment of the credibility of the informant, the subsequent investigation, and its relation to the requirements established in R. v. Debot[^1] that the information of confidential informants be compelling, credible and corroborated.

[6] It is argued that distinctions between those two ITO's might demonstrate whether there were deficiencies in the earlier ITO, which necessitated further investigation or if there were incorrect details or weaknesses in the information contained in the earlier ITO as provided by the confidential informant on or prior to August 4, 2014. It is claimed this would all impact on the question of whether Detective Constable Annetts was making full, fair and frank disclosure when she prepared the August 19, 2014 ITO, which led to the issuance of the August 19 warrant, or whether salient details were omitted or misrepresented before Justice Hendricks. In defence counsel's view, all of this bears on a material issue, namely, the admissibility of the evidence seized as a result of the execution of the August 19, 2014 search warrant.

[7] Against this background, the applicant seeks the termination of the Sealing Order currently in place and disclosure of the August 4, 2014 search warrant and the Information to Obtain that warrant in order to make full answer and defence. It is claimed that the materials are properly first party disclosure and that the burden falls on the Crown to prove that it is irrelevant or otherwise privileged.

[8] The applicant further claims the preconditions for the release of the Sealing Order under section 487.3(4) of the Code have been met. He argues that disclosure of the information, properly vetted, would not compromise the identity of a confidential informant, would not compromise an ongoing investigation, would not reveal any particular intelligence gathering techniques or endanger the interests of an innocent person. The investigation regarding the applicant ended with his arrest on August 19, 2014, and as such, defence counsel claims no Sealing Order continues to be required for the earlier documentation.

[9] Interestingly, after the applicant was arrested and as the case started to proceed through the courts, the applicant made a disclosure request in January of 2015, seeking disclosure relating to the confidential informants who were referenced in the August 19 search warrant. At a pretrial held on June 11, 2015 in Superior Court, the applicant again reiterated his request for disclosure, along with a request for the earlier ITO to be provided. At the time of that judicial pretrial, the Crown undertook to provide it.

[10] About 10 days later, however, Crown counsel informed defence counsel that upon further review, he would not be disclosing the earlier warrant, or the ITO relative to the material that gave rise to the issuance of that earlier warrant, because that was not before the issuing justice in the August 19, 2014 search warrant application. Crown counsel's earlier undertaking was based upon a mistaken belief that the undisclosed ITO was issued on the same day as the August 19, 2014 search warrant, and therefore was before the issuing justice at the time that the warrant was issued on that date. On that date, however, the only reference to the earlier warrant contained in the ITO sworn by the affiant was paragraph 7, in boldface type, indicating that a Criminal Code search warrant had been applied for and granted by Justice William Brownell in North Bay on August 4, 2014, that it had been valid between 2:00 a.m. on August 4 and 11:59 p.m. on August 8, 2014, that it was for the address of 302 Grandravine Dr., Unit 159, in the City of Toronto, and that it was sealed.

[11] From the outset of this matter, defence counsel has indicated his intention to challenge the issuance of the warrant based upon the alleged failure of the information of the confidential informant to qualify as a basis upon which the Justice of the Peace, acting reasonably, could have issued the subsequent warrant. He bases this challenge on his position that the information of the confidential informant has not been proven to be credible, compelling and corroborated.

[12] Nevertheless, a vetted copy of the ITO relative to the August 19 search warrant that gave rise to the apprehension of the firearms and the laying of charges in this case was disclosed to the applicant in 2014. Moreover, a draft judicial summary of the redacted portions of that ITO has been disclosed to the applicant to permit him to prepare for trial. That draft judicial summary was provided in August of 2015.

[13] Consequently, it is the Crown's position that the applicant has properly been given all of the disclosure to which he is entitled, namely the materials which were reviewed by the authorizing justice and which gave rise to the charges before the court. The Crown submits that is all the information that the applicant is entitled to relative to the Garofoli application he intends to bring to challenge the issuance of the August 19 warrant. The Crown resists the defence claim for further disclosure of the August 4, 2014 materials because they were never before the authorizing justice who issued the actual warrant whose execution yielded the firearms which gave rise to the criminal charges/ He also opposes it because defence counsel has provided no articulation of likely relevance of those materials.

Disclosure Obligations in a Garofoli context

[14] The applicant argues that the Crown is required to disclose the August 4, 2014 ITO because it is not clearly irrelevant, privileged or beyond the Crown’s control. I disagree. The disclosure required under R. v. Stinchcombe[^2] is much more narrowly circumscribed in the context of a Garofoli application. With respect to the authorization materials themselves, I agree with Crown counsel that the Stinchcombe disclosure duty is discharged once the Crown discloses the material that was placed before the issuing judge.

[15] That would normally include the contents of the sealed packet, including the Authorization, any judicial endorsements concerning the issuance of the Authorization, the affidavit filed in support of the Authorization for the Warrant and any appendices that were attached to that affidavit. That sealed packet of material that is finally disclosed to the defence can be edited or summarized so as to protect informer privilege or third-party privacy interests. The proposition that this disclosure obligation is limited in this way is well-established on the authorities.[^3]

[16] The leading authority on this point is the decision of the British Columbia Court of Appeal in R. v. Barzal. In that case, the applicant sought disclosure of handlers debriefing notes for three confidential informants who were given information that had been used to formulate grounds that provided support to the issuance of several search warrants and a wiretap authorization. Counsel for the accused argued that the police officers debriefing notes were necessary to "attack the validity of the search warrants and the wiretap authorizations on the basis that the reliability of the informers was an issue." The trial judge ordered disclosure of the debriefing notes without editing, but that Order was set aside and reversed by the British Columbia Court of Appeal who stated as follows at paragraph 44:

In this case, the accused wanted access to debriefing notes in order to test reliability of the informers. A detailed inquiry into police files is not required for that purpose. Sufficient reliability is established, or is not established, by reference to the material filed in support of an application for an authorization. The right to make full answer and defence in this context is a right to the disclosure of the material which had been before the authorizing judge. It is not a right to embark on a fishing expedition of all the material in the possession of the police. Such an inquiry could be endless, including access to police files, cross-examination of police officers, cross-examination of informants (which is not permitted; see Garofoli at paragraph 1465), and consideration of the details of each case in which the informer had been involved. [my emphasis]

[17] This position has been cited with approval in a similar case in this court. In R. v. Ahmed, above, the Crown voluntarily disclosed vetted debriefing reports prepared by the handlers of certain confidential informers. They had provided information that was used in support of a wiretap authorization. The defence requested disclosure of the handwritten notes upon which the typewritten reports were based. Having reviewed the existing law, Justice MacDonnell applied the decision in Barzal and concluded:

That where the defence is seeking a court order obliging the Crown to disclose material that was not before the authorizing judge, that the affiant did not rely on, and that is outside of the borders of what is relevant for the trial itself, the defence has to do something more than demand the material.[^4]

[18] Even though I agree that the Crown’s obligation under Stinchcombe does not extend to producing this ITO for the August 4, 2014 warrant to the defence as a matter of basic disclosure, it is nevertheless possible for defence to obtain additional disclosure beyond what is obtained in the sealed packet. But consistent with the decision in Barzal, the applicant must establish the relevance of the additional material sought before he or she will be entitled to obtain it.

[19] Justice MacDonnell described that test in Ahmed as "an onus to establish a reasonable possibility that the material will actually assist." “Likely relevance” has its normal meaning as set out in R. v. Egger and R. v. Dixon[^5], but importantly, in the context of a Garofoli application, the judge must keep a "weather eye" on the ultimate issue on the application. Relevance must be attenuated by those considerations. That means that the disclosure that is sought must be likely to be relevant to the issue of whether the authorizing judge could have granted the order.[^6]

[20] I agree with Crown counsel that Barzal, Ahmed, Hazelwood and Cater were all cases where the defence failed to "link" the issues that necessarily arise on the Garofoli application with the probative value of the disclosure that was being requested. In those cases, as here, general assertions that the requested material could shed light on the reliability of informers, the reliability of the affiant, investigative necessity, or material in the omissions from the affidavit (respectively) were all insufficient in those cases and disclosure was refused.

[21] In Ahmed, MacDonnell, J. addressed the issue of material that is “outside of the investigative file”. Referring to R. v. Pires and R. v. Lising[^7], the defence cannot proceed on the basis that there is no distinction between what is necessary to fulfill a full answer and defence right for the purposes of trial, as compared to disclosure that is necessary for the purposes of a hearing focused on the admission of evidence. While an accused is entitled to all of the information in possession of the Crown that is potentially relevant to the trial, that is the entire investigative file, information that falls outside of the investigative file is not disclosable because the request for its disclosure reaches beyond what was before the authorizing judge who issued the August 19 warrant, and it is beyond the investigative file. In this case, that includes the ITO relative to August 4, 2014. As such, since it was not before the authorizing judge, any presumption of relevance is significantly attenuated.

[22] In summary, and put simply, the discovery aspect of Garofoli disclosure must be limited in a manner that is consistent with other limits imposed on similar "discovery" tools, including the right to cross-examine affiants on such hearings. The defence is not entitled to use a disclosure request to conduct a "fishing expedition" in relation to the affidavit that was the foundation for the issuance of the warrant, or its source material, any more than it is entitled to cross-examine the affiant of the ITO at large on a Garofoli hearing without leave of the court. [^8]

[23] In this case, the materials that were before the issuing judge have been disclosed to the defence. Defence counsel speaks vaguely and in general terms about the “need to verify the accuracy of information contained in the subsequent ITO”, but in fact has no foundation to believe that there is anything contained in the August 19 ITO that was not contained in the earlier ITO. It was plain to me from the manner in which the motion was argued that defence counsel simply hoped that if the court were to grant release of the earlier ITO by releasing the Sealing Order, that there might be some grist for the Garofoli mill, the application that will occupy the first few days of the trial set to commence next week as part of the defence's efforts to undermine the validity of the search warrant that gave rise to the discovery of firearms in the apartment inhabited by the accused.

[24] Evidentiary hearings are not trials. Garofoli hearings are convened for the purpose specifically of determining the admissibility of evidence that has been obtained by way of a judicial authorization that is itself presumptively valid.[^9] Thus, the need to assess relevance must be with an eye to the ultimate issues that are to be decided on the Garofoli application and its relevance looked at from that perspective. That assessment needs to provide appropriate and logical safeguards to prevent Garofoli hearings from taking over trials and developing into prolix proceedings. As the Supreme Court said in Pires, “the Garofoli threshold test is nothing more than a means of ensuring that, when a section 8 challenge is initiated, the proceedings remain focused and on track.” [^10]

[25] To return to the defence position, the defence argues that the material sought is necessary in order to permit him to "develop" his position with respect to the Garofoli application. However, the defence has tendered no evidence and proffers no argument with respect to the propriety of the authorization process itself. He merely asserts entitlement to the disclosure under the rubric of Stinchcombe to permit defence counsel to do a "check" against each aspect of the affidavit for the authorization that resulted in an executed search warrant against another one which was never reviewed by the authorizing justice.

[26] Plainly, this is not permitted. The applicant argues that they are entitled to look for variations or deviations that may prove significant without first stipulating how or why they might be significant. I agree with Crown counsel that the defence counsel's position on this application never rises above the contention that something might be found in the supporting affidavit for an authorization that was never executed. Moreover, Justice MacDonnell was specifically critical of this "discovery approach” in R. v. Ahmed. He stated as follows at paragraph 45:

What they (the applicants) want to do, they have made clear, is to compare the source reports with the notes that were used to prepare them to determine if the authors of the reports accurately perform the transposition. The hope, and on the record it cannot be put any higher than that, is that they may find an inaccuracy or omission that might be characterized as significant. What is proposed is purely a fishing expedition.

[27] In light of this, I find that a broad "as of right" disclosure request for source documents which appears to have as its sole purpose providing the defence with the opportunity to allegedly check the "correctness" of what an affiant has written in an Information to Obtain a search warrant, is prima facie overly broad and does not satisfy the "likely relevance" onus.

[28] Finally, in my view the decision of the Nova Scotia Provincial Court in R. v. Cater, above, where Justice Derrick dealt with similar requests for "informational disclosure" relative to a Garofoli application, is also dispositive of the applicant’s request here.

[29] In that case, the court declined to order the Crown to answer the defendant’s questions because it ruled that to do so would effectively subvert the rules that must apply on the Garofoli hearing itself. The request made by counsel sought answers to questions that would be more appropriately posed during a cross-examination of an affiant on a Garofoli hearing, but that of course would only be possible if the defence were first to be granted leave by the presiding judge at trial. If disclosure has been ordered ahead of time, however, there is no need to seek leave to cross-examine the affiant of the ITO on the Garofoli application and the requirement that such leave be sought and granted would be rendered superfluous.[^11]

[30] The information sought by the applicant in this case would be more properly dealt with by the presiding judge on the Garofoli application since it is simply in the nature of questions that might be put to an affiant on a Garofoli hearing if leave to cross-examine were granted. However, disclosure requests are not an opportunity to cross-examine by proxy. Garofoli clearly establishes that no cross-examination of the affiant or sub-affiant’s for an ITO is to take place unless the defence can first establish on an evidentiary basis that the cross-examination will elicit testimony that will tend to discredit the existence of one of the necessary preconditions for the authorization of the warrant. Plainly, the onus on the defence at a Garofoli hearing to meet that requirement would be rendered meaningless if the same information associated with such a cross-examination was also obtainable through the less-stringent legal test of court-ordered disclosure.

[31] Finally, reference should be made to the applicant’s arguments based on the Sealing Order provisions of the Code themselves. Stated simply, I do not find that they provide any greater support for the disclosure arguments than those listed above. Subsection 487.1(4) of the Code contemplates that the Sealing Order may be lifted where no longer required, provided that the party seeking the lifting of the order can show that the ends of justice require the continued sealing of the warrant. The continuance of the Sealing Order may be required where the disclosure of the warrant would compromise the identity of a confidential informant, compromise an ongoing investigation, endanger a person engaged in intelligence gathering, or prejudice the interests of an innocent person. Here, I agree that provided it was vetted, none of those interests would seem to be offended by the unsealing of the first warrant. But that is not enough.

[32] First, the warrant was never executed, and it seems plain on a reading of Re Duru-Obisi[^12] and the authorities referenced there that it is executed warrants that ought to be released to the public, not warrants that were never acted upon. After referring to the Supreme Court’s decision in Toronto Star Newspapers v. Ontario[^13] and R. v. CBC[^14] and the principle that a warrant and the information upon which it is based must be made available to the public, after the warrant has been executed, unless it is demonstrated that the ends of justice would be subverted, Borenstein J. continued at para. 26:

Accordingly, while there exists valid reason to seal a search warrant and I.T.O. prior to execution, that rationale evaporates once the warrant has been executed subject to necessary redactions or sealing Orders as prescribed by section 487.3 in the context of the test in Dagenais/Mentuck1 test. Apart from those restrictions in that context, the rationale prohibiting public access following execution where nothing is seized does not apply and certainly does not apply to the occupier of the residence searched.

It is only once the search warrant has been executed that it is to be made available to the public.

[33] R. v. Audette[^15] was a Quebec case where the applicant appears to have wanted to achieve exactly what the applicant seeks here, again in the context of a Garofoli application. As in this case, the warrant had not been executed. Vauclair J.C.Q. denied the application. At paras. 24 and 26 he states:

24 In the present case, it is readily apparent that the application can easily be confused with an application for disclosure of evidence. The applicant asks the Court both to review the Crown's discretionary decision regarding what information it will disclose to the defence and when it intends to do so and to rule on the existence of a privilege that authorizes the Crown to refuse to disclose evidence.

26 The procedure created by s. 487.3(4) Cr. C. allows a forum to review a situation that may change over time and where the grounds that existed before the execution of the warrant no longer exist. Judges must exercise their discretion judicially and their role is limited.

[34] Once again, it seems plain that it is where the search warrant has been executed that the lifting of a s. 487.3 Sealing Order becomes important, and that the use of the unsealing request procedure is not meant to be, nor should it be used as a collateral method to achieve disclosure that should properly be granted only in the context of the Garofoli application itself.[^16]

[35] In R. v. Abdullahi[^17], Clark J. observed in the context of a pre-Garofoli disclosure motion like this one, that the application for additional material is ancillary to the Garofoli process itself. As such, just as a party must demonstrate that it is appropriate that leave be granted before the ITO affiant will be permitted to be cross-examined, so too an applicant for additional disclosure ought reasonably to be able to demonstrate the relevance of what is sought before the disclosure is ordered. This follows where the disclosure is sought through the mechanism of an order unsealing a previously sealed issued but unexecuted warrant, under s. 487.3, or though other procedures.

[36] Given that reality, the onus will remain on the applicant to demonstrate reasonable relevance for disclosure being sought before it will be ordered, but here the applicant has failed to discharge that burden of persuasion. The paragraphs of the August 19 ITO preceding paragraph 7 show plainly what was there before the August 4 warrant was issued. Here, the applicant has failed to show any reasonable relevance or that the content of the issued but unexecuted August 4 ITO has any bearing whatsoever on the legality of the August 19 warrant. It is nothing more than a dressed up fishing expedition. Barzal definitively shows that the right to make full answer and defence in this context is a right to the disclosure of the material which had been before the authorizing judge. Nothing more or less. This is dispositive. The application is dismissed.

M. G. Quigley, J.

Released: September 29, 2015

Footnotes

[^1]: 1989 13 (SCC), [1989] 2 S.C.R. 1140.
[^2]: 1991 45 (SCC), [1991] 3 S.C.R 326.
[^3]: R. v. Barzal 1993 867 (BC CA); R. v. Ahmed, 2012 ONSC 4893; R. v. Hazelwood, [2000] O.J. No.459; R. v. Cater, [2011] N.S.J. No. 624; R. v. Basi, 2010 BCSC 26.
[^4]: See Ahmed above at para. 44.
[^5]: 1993 98 (SCC); 1998 805 (SCC).
[^6]: See R. v. Garofoli and R. v. Mahal.
[^7]: 2005 SCC 66.
[^8]: See R. v. Pires; R. v. Barzal; R. v. Ahmed; R. v. Basi; R. v. Ebanks.
[^9]: See R. v. Ebanks.
[^10]: See R. v. Pires.
[^11]: R. v. Cater.
[^12]: [2015] O.J. No. 2011 (O.C.J.).
[^13]: 2005 SCC 41.
[^14]: 2008 ONCA 397.
[^15]: [2009] Q.J. No. 9595, Court of Quebec.
[^16]: See also R. v. Burgher, 2014 ONSC 3239.
[^17]: 2014 ONSC 3981.