R. v. Francis, 2015 ONSC 614
COURT FILE NO.: M 003/15
DATE: 20150127
ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
B E T W E E N:
HER MAJESTY THE QUEEN
E. Winocur, for the respondent
Respondent
- and -
DUVANE FRANCIS
Applicant
G. Grill, for the applicant
HEARD: January 26, 2015
Nordheimer J.:
[1] Duvane Francis brings this application for an order pursuant to ss. 7 and 24(1) of the Canadian Charter of Rights and Freedoms to compel the Crown to disclose edited portions of an Information to Obtain a search warrant.
[2] On October 9, 2013, the Toronto Police obtained a telewarrant to search the applicant’s vehicle and apartment. The search warrant was executed and a loaded firearm was found in the vehicle. The applicant was charged with firearms offences.
[3] As part of the disclosure, the Crown provided the applicant with an edited copy of the ITO. The edits were made to protect the identity of an informer under informer privilege. As a result of a defence request, the Crown subsequently provided a summary of the nature of the edits made.
[4] The preliminary hearing of this matter commenced before Libman J. The defence needed to decide whether to bring a Dawson application for leave to cross-examine the affiant of the ITO.[^1] However, the applicant says that, because of the extent of the edits made to the ITO, and notwithstanding the Crown summary provided, he has been deprived of the information necessary to make an informed decision regarding any Dawson application. As a consequence, the applicant seeks, in effect, to have this court review the edits made and determine if they are justified. The preliminary hearing has been adjourned pending the determination of this application.
[5] The issue raised by this application is whether this court should entertain the applicant’s challenge to the Crown’s editing of the ITO, or whether that challenge should have to await a decision by the trial judge, assuming that the applicant is committed for trial. The issue arises out of what the applicant asserts is a conflict between the decision in R. v. Dawson (1998), 1998 1010 (ON CA), 39 O.R. (3d) 436 (C.A.) and the decision in R. v. Girimonte (1997), 1997 1866 (ON CA), 37 O.R. (3d) 617 (C.A.).
[6] I begin with the decision in Girimonte. In that case, the accused sought additional disclosure not provided by the Crown. The preliminary hearing judge found that he did not have jurisdiction to order the further disclosure. The accused sought an order of mandamus from the Superior Court to compel the preliminary hearing judge to order the further disclosure. The application for mandamus was dismissed, but the application judge did order the Crown to make some very limited further disclosure, relying on his authority under s. 24(1) of the Charter. The accused appealed to the Court of Appeal.
[7] The appeal was dismissed. In his reasons for the court dismissing the appeal, Doherty J.A. made it clear that issues regarding the adequacy of the Crown’s disclosure did not fall within the purview of a preliminary hearing judge. He said, at para. 22(QL):
Applications challenging the Crown’s disclosure decisions are largely, but not exclusively, Charter based. Any statutory or common law power a court has to make a disclosure order is all but subsumed in the broad remedial powers of s. 24(1) of the Charter. The resolution of disclosure disputes in the trial court is consistent with the primary role assigned to the trial court in the determination of constitutional issues which arise in the course of criminal proceedings: R. v. Seaboyer, supra, at pp. 412-413. If those applications can be brought in the course of the preliminary inquiry, the risk of prolonged and fragmented preliminary proceedings is increased: see R. v. Mills, supra, R. v. Seaboyer, supra.
[8] Doherty J.A. encapsulated the end result, at para. 26(QL), where he said:
Quite simply, the preliminary inquiry has nothing to do with a Crown’s obligation to make full disclosure to the defence. Consequently, judicial review of Crown disclosure cannot be seen as a manifestation of the justice’s power to regulate the course of the inquiry.
[9] That said, Doherty J.A. did recognize that there existed a discretion in a Superior Court judge to address disclosure issues in advance of a trial, but in limited circumstances, as the application judge had done in that case. In referring to any review of the Crown’s disclosure obligations in those circumstances, Doherty J.A. said, at para. 18(QL):
In making that determination, the Crown must exercise the utmost good faith and be guided by the spirit and the letter of Stinchcombe. The Crown’s determination is subject to judicial review. The trial judge may exercise that reviewing authority and, in exceptional cases where the circumstances require, a judge of the superior court, may under the authority of s. 24(1) of the Charter, review the adequacy of the disclosure provided by the Crown: R. v. Stinchcombe, supra, at pp. 11-12; R. v. Laporte (1993), 1993 9145 (SK CA), 84 C.C.C. (3d) 343 (Sask. C.A.); R. v. Connell, [1996] O.J. No. 4530, (Ont. Ct. (Gen. Div.)). If the disclosure made by the Crown does not meet Stinchcombe standards, the court can require the Crown to make the appropriate disclosure.
[10] The decision in Girimonte was released after Dawson was argued but before the decision in Dawson was released. In Dawson, the issue was whether the accused had any right to cross-examine the affiant of an ITO at a preliminary hearing and, if so, whether the right was unfettered or subject to leave. The Court of Appeal in Dawson determined that leave to cross-examine was required, in accordance with the decision of the Supreme Court of Canada in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421.
[11] In reaching its decision in Dawson, Carthy J.A., speaking for the court, referred to the decision in Girimonte but rejected that it had any implication for the issue that was raised in Dawson. Carthy J.A said, simply, at para. 14(QL):
I can see nothing in the reasons of Doherty J.A. that impinges upon the issues in the present case. That case concerns the regulation of the Crown’s disclosure obligations.
[12] Consequently, it is clear that a preliminary hearing judge cannot review the adequacy of the Crown’s disclosure. Normally that is a matter that only the trial judge can address.[^2] However, a Superior Court judge may engage in that review, in advance of the trial, if exceptional circumstances exist. The question then becomes what constitutes an exceptional case that warrants a judge of this court exercising his/her authority under s. 24(1) of the Charter to review the extent of the Crown’s disclosure. It is not clear from a reading of the reasons in Girimonte what it was that satisfied the application judge, in that case, to order the limited further disclosure. It would seem obvious, though, that not just any dispute over the degree of disclosure could satisfy the threshold, otherwise any case, where disclosure was at issue, would do so.
[13] In this case, the applicant says that his right to be able to make an informed decision as to whether to bring a Dawson application is sufficient to make this an exceptional case. I do not agree. There may be cases where the editing process is so extensive that it would amount to non-disclosure. For example, if all but the introductory paragraph of an ITO were to be blacked out. There may be cases where editing is made and the Crown refuses to provide a summary of the edited material. There may be the extreme case where the Crown refuses to provide any disclosure at all. Any one of those instances might be sufficient to constitute that case as an exceptional one. However, that is not the situation here.
[14] In this case, there is significant editing regarding the nature of the firearm and where it was located within the applicant’s home. The Crown’s summary of the edits makes all of this clear. Superficially, at least, it would seem to be information that has been reasonably edited to protect the identity of the informer. However, the edits do not obscure the facts upon which the search warrant was granted. It obviously turns on the reliability of the informer. To the degree that any of the information provided by the informer has been corroborated by the police, and admittedly that is quite limited, the nature of that corroboration is evident from the ITO.
[15] It may be that a trial judge, faced with a challenge to the search warrant, would find that the editing was overbroad, when the trial judge compares the edited and unedited versions of the ITO. However, whether that is so is clearly a question for the trial judge to determine. On that point, it is important to remember that a judge, at a preliminary hearing, cannot make any determination of whether the authorization was, or was not, validly granted. That is because a judge, at a preliminary hearing, is not a court of competent jurisdiction for the purposes of s. 24 of the Charter: Girimonte at para. 21. This limitation on a preliminary hearing judge’s authority directly informed the approach taken by Watt J., who was the application judge in Dawson[^3], where he justified a limitation on the right to cross-examine at a preliminary hearing by saying, at para. 63(QL):
It seems somewhat anomalous to afford a wider scope of cross-examination to an accused, cross-examination as of right, in proceedings where its purpose, the introduction of evidence to support a case of constitutional infringement and exclusion, is beyond the authority of the presiding judicial officer.
[16] Further, the analysis of this issue must be undertaken against the backdrop of the purpose of a Dawson application. A Dawson application is a discovery exercise, as a reading of the authorities, including Dawson itself, make clear. It may well be that the extent of the editing of an ITO by the Crown, at the time of the preliminary hearing, may impinge on the accused’s ability to cross-examine, and thus restrict the accused’s ability to unearth evidence that may be of assistance at a trial, when the validity of the authorization can be challenged. While that may be an unfortunate result, it is a result that does not impinge on the accused’s right to make full answer and defence – it merely postpones that right. The accused retains the right to make the same request, and advance the same arguments, at the trial on any voir dire challenging the authorization. This may be seen as a necessary limitation to avoid the risk of prolonged and fragmented preliminary proceedings, a concern to which Doherty J.A. referred in Girimonte. It also reflects the limited role of a preliminary hearing judge, which does not extend to ensuring that the accused is able to make full answer and defence. As Doherty J.A. also said in Girimonte, at para. 32(QL):
Certainly, none of these cases suggest that a justice has any supervisory authority over the Crown’s overall conduct of the prosecution or any responsibility to safeguard the accused’s right to make full answer and defence at trial.
[17] Viewed in this context, it does not appear to me that there is, in fact, a conflict between the decisions in Girimonte and in Dawson. However, if there is such a conflict, it is one that only the Court of Appeal can resolve.
[18] I conclude, therefore, that this case does not rise to the level of an exceptional case where it would be appropriate for me to embark on a review of the adequacy of the Crown’s disclosure in terms of their editing of the ITO.
[19] For these reasons, I have concluded that the application must be dismissed.
NORDHEIMER J.
Released: January 27, 2015
CITATION: R. v. Francis, 2015 ONSC 614
COURT FILE NO.: M 003/15
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
DUVANE FRANCIS
Applicant
REASONS FOR DECISION
NORDHEIMER J.
RELEASED:
[^1]: A Dawson application refers to the decision in R. v. Dawson (1998), 1998 1010 (ON CA), 39 O.R. (3d) 436 (C.A.).
[^2]: This restriction would now be subject to the case management provisions recently added to the Criminal Code in Part XVIII.1.
[^3]: R. v. Dawson, 1997 12348 (ON SC), [1997] O.J. No. 2188 (Gen. Div.)