ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-731/13
DATE: 20151013
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
CHRIS MCKENZIE
Kene Canton, for the Crown
Nathan Gorham, for the accused
HEARD: October 5-9, 2015
K.L. Campbell J.:
Pre-Trial Ruling
Procedural Issues on “Step Six” of Garofoli Application
A. Overview
[1] The accused, Chris McKenzie, currently faces an indictment that charges him with three offences, all flowing from his alleged unlawful possession of a prohibited firearm, namely, a Hi-Point 9 mm. handgun and a box of ammunition. All three offences were allegedly committed in Toronto on or about April 29, 2012. On that date, members of the Toronto Police Service (TPS) arrested the accused and executed a telewarrant at his apartment premises on the seventh floor of an apartment building located at 335 Driftwood Avenue. It was in this apartment that the police discovered the firearm and the ammunition.
[2] The accused has brought an application to quash the telewarrant and exclude the evidence obtained by the police under s. 24(2) of the Canadian Charter of Rights and Freedoms. The Information to Obtain (ITO) the telewarrant was largely dependent upon information allegedly provided to the police by a confidential source.
[3] Pursuant to its disclosure obligations, the Crown has provided the accused with a vetted copy of the ITO. Significant portions of this ITO have been redacted on the basis that disclosure of that information would violate confidential informant privilege as it would tend to disclose the identity of the confidential informant.
[4] The Crown concedes that the redacted ITO cannot support the issuance of the telewarrant. In the result, the Crown has applied under “step six” of the procedure outlined in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1461, to have the court “consider so much of the excised material as is necessary” to support the telewarrant. The accused is opposed to this “step six” application by the Crown, and argues that the lack of “reasonable grounds” in support of the telewarrant is a violation of s. 8 of the Charter and should result in the exclusion of the evidence of the finding of the firearm and ammunition.
[5] The accused also contends that contrary to s. 487.1(1) of the Criminal Code, R.S.C. 1985, chap. C-46, there was no evidence before the issuing justice to justify resort to the telewarrant procedure that was employed in this case in order to obtain prior judicial authorization for the search. The accused claims that, in the result, the police search of his apartment premises was in violation of s. 8 of the Charter of Rights, and provides an additional reason justifying the exclusion of the evidence under s. 24(2) of the Charter.
B. The Procedural History of the Application To-Date
[6] The proceedings on this pre-trial application began with the Crown providing the court with a copy of the original, unredacted ITO, and a proposed judicial summary of the vetted information. Both documents were provided to the court under seal. Defence counsel had already filed, as part of his application, the vetted copy of the ITO that had been provided to the accused by the Crown pursuant to its disclosure obligations.
[7] Thereafter, the court and the Crown exchanged a series of sealed drafts of the proposed judicial summary of the information redacted from the original ITO. These drafts dealt not only with how best to describe and summarize the information redacted from the original ITO, but also with whether some of the redactions were necessary at all to protect the identity of the confidential informant.
[8] The goal of this process was to endeavour to provide the accused with as much information as possible as to the substantive contents of the ITO, to allow the accused to potentially mount both a facial and sub-facial attack on the impugned ITO, while nonetheless ensuring that the confidential informer privilege was maintained and the anonymity of the confidential informant was not compromised. See R. v. Crevier, 2015 ONCA 619, [2015] O.J. No. 5109, at para. 83.
[9] As the governing judicial authorities suggest, during this process it is important for the court to remain cognizant of the fact that the disclosure of the smallest factual details may, depending upon the circumstances, implicitly tend to reveal the identity of the confidential informant by narrowing the pool of individuals who might be the confidential informant. Courts must exercise great care and caution not to unwittingly deprive a confidential informant of the privilege accorded them by law. See R. v. Leipert (1996), 1996 471 (BC CA), 106 C.C.C. (3d) 375 (B.C.C.A.), at para. 35, affirmed, 1997 367 (SCC), [1997] 1 S.C.R. 281, at para. 18; R. v. Omar, 2007 ONCA 117, 84 O.R. (3d) 493, at paras. 40-44; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at paras. 26, 30; X.Y. v. United States of America, 2013 ONCA 497, 116 O.R. (3d) 548, at paras. 9-12; R. v. Parmar (1987), 1987 6867 (ON SC), 34 C.C.C. (3d) 260 (Ont.H.C.J.), at p. 281; R. v. Browne, 2014 ONSC 2563, [2014] O.J. No. 2100, at para. 9; R. v. Bell, 2014 ONCA 665, [2014] O.J. No. 4520, at paras. 1-3.
[10] Eventually, the judicial summary was finalized and provided to defence counsel.
C. The Defence Argument
[11] Once he had an opportunity to consider the judicial summary, defence counsel argued that there needed to be a more robust procedure undertaken to ensure that the original ITO was redacted no more than necessary by the Crown in order to preserve the confidential informant privilege. In the particular circumstances of this case, for the following reasons, I agree with defence counsel that a more elaborate procedure is necessary in order to permit the court to better assess the appropriateness of the redactions of the ITO made by the Crown.
D. Analysis – The Crown’s Justification for the Proposed Redactions
[12] As I understand the first three steps of the procedure outlined in R. v. Garofoli, at p. 1461, if the Crown objects to the disclosure of any of the information contained in the ITO on the basis of confidential informant privilege, the Crown should edit the ITO as it believes is necessary to preserve the privilege, and that the vetted ITO should be provided to the accused. Defence counsel is then permitted to make submissions as to the propriety of the editing undertaken by the Crown. If necessary, the court may provide the accused with a judicial summary of the general nature of the deletions to permit the accused to better appreciate the nature of the deletions. After hearing the submissions of counsel on the topic of the editing process, “the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum” and considering the appropriate factors. In short, the Crown proposes what editing is necessary in order to preserve the privilege, but it is the trial judge who must make the “final determination” as to what redactions are necessary to preserve the privilege. See R. v. Burgher, 2014 ONSC 4527, [2014] O.J. No. 6449, at para. 16.
[13] In the absence of any expressed justification for the proposed editing of the ITO, however, the trial judge is left to reach the “final determination” on the editing issue based only upon: (1) the contents of the original, unredacted ITO; (2) the contents of the redacted ITO; and (3) the contents of the proposed judicial summary. In some circumstances it may be patently obvious as to why a redaction is necessary in order to preserve the anonymity of the confidential informant. But there will undoubtedly be other circumstances when the need for a redaction is not nearly so self-evident, and an explanation by the Crown seeking to justify the proposed redaction might well prove to be very helpful to the trial judge. After all, at an early stage of the trial proceedings, the Crown is apt to have a broader base of factual knowledge as to the scope of the police investigation and the other circumstances of the case, and will have ready access to consultation with the investigating police officers, the confidential informant’s police “handler” or main police liaison, and potentially (at least indirectly) the confidential informant him or herself. In short, if there is any justification for the proposed editing of the ITO, the Crown is in the best position to provide that explanation. Once advised of any proposed justification, the trial judge will then be in a better position to assess the merits of the justification and the corresponding need for the proposed editing.
[14] This is not, however, only an issue of practical efficacy and common sense. The Crown bears the legal burden of justifying any proposed editing. In R. v. Durette (1992), 1992 2779 (ON CA), 9 O.R. (3d) 557 (C.A.), at para. 151, Doherty J.A., in a dissenting judgment, ultimately endorsed by the Supreme Court of Canada (R. v. Durette, 1994 123 (SCC), [1994] 1 S.C.R. 469, at paras. 36, 43-45), made it clear that full disclosure of an ITO is the “starting premise” and any redaction that may interfere with the ability of the accused to make full answer and defence “must be justified by the Crown in accordance with established principles.” More specifically, Doherty J.A. suggested that the editing of an ITO is best viewed as a “necessary evil” even when justified by “public interest concerns” and it follows that the Crown initially, and the court ultimately, must endeavour to minimize any editing. On further appeal, Sopinka J., delivering the judgment of the majority of the Supreme Court of Canada, confirmed, at para. 45, that “full disclosure should be the rule, subject only to certain exceptions based upon overriding public interests which may justify non-disclosure,” and suggested that a supporting affidavit or ITO “should only be edited to the extent necessary to protect those overriding public interests.”
[15] Requiring the Crown to provide some explanation for its proposed editing of an ITO has other incidental, but not insignificant, systemic benefits.
[16] First, requiring the Crown to provide the court with an explanation for its proposed redactions of an ITO is likely to ensure that the Crown will approach the editing process with the appropriate degree of professional discipline and intellectual rigour. Given the fine balance that must be sought in the editing process, between disclosure of as much information as possible to the accused and maintaining the anonymity of the confidential informant, and appreciating the real risks and dangers inherent in compromising the confidential informant privilege, the Crown may be inclined, at least subconsciously, to adopt an inordinately cautious approach to the editing process if no explanation ever need be provided for any proposed redactions. However, if the Crown had to undertake the editing process knowing that it might be obliged to explain to the court the perceived justification for any proposed redactions, this would likely ensure that any perceived justification could be fairly articulated by the Crown.
[17] Second, requiring the Crown to provide the trial judge with an explanation justifying the proposed redactions may often provide a clearer and more transparent evidentiary basis for the trial judge’s decision-making process in relation to the editing process. While any such explanation could not be provided in the presence of the accused or defence counsel, as it would likely compromise the anonymity of the confidential informant, it could be conveniently provided to the court in writing in a sealed document. This document would not be available to defence counsel or the accused, but it would be reviewed by the trial judge and, as part of the trial court record, would be available for review on any subsequent appeal.
E. Providing Written Justification for Proposed Redactions
[18] Accordingly, in the particular circumstances of this case, I consider it appropriate to require the Crown to provide the court with a written explanation and/or justification for each of the proposed redactions to the ITO in this case. As I have suggested, this written document from the Crown will be filed under seal with the court, will be made a lettered exhibit for the record, and will be for my eyes only. It will not be made available to defence counsel or the accused. I note that this very procedure (i.e. the Crown filing sealed written submissions with the court, fully addressing issues concerning confidential informant privilege), was accepted as legally appropriate by the Court of Appeal for Ontario in R. v. Dell (2005), 2005 5667 (ON CA), 195 O.A.C. 355, 194 C.C.C. (3d) 321, at para. 66, leave denied, [2005] S.C.C.A. No. 524.
[19] The substantive content of this document will be for the Crown to determine. I will not dictate how it should be prepared, or who might be consulted in relation to its preparation, but I expect it to contain the specific rationale or reasons why each redaction is necessary in order to properly preserve the confidential informant privilege in this case.
[20] In the event that, in preparing this explanatory document, it becomes apparent to the Crown that any portion of the currently proposed redactions are not, upon further reflection, necessary in order to preserve the confidential informant privilege, the Crown should so indicate. However, to the extent that a portion of the altered proposed redaction remains, the Crown should provide its explanation justifying the proposed remaining redaction.
F. The Existence of Any Confidential Informant Privilege
[21] Defence counsel argues that the Crown should also be required to file sealed written evidentiary materials that establish, if possible, that the person who provided the information to the police about the alleged criminal conduct of the accused is, in fact, a confidential informant, and provided this information to the police on a confidential basis. On this application, defence counsel has expressly challenged the assertion by the Crown that the information in this case was provided by a confidential informant.
[22] In my opinion, in these circumstances, the Crown must provide some evidence that establishes the existence of the claimed privilege. After all, according to the Supreme Court of Canada decision in R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, at para. 39, “[i]n determining whether the privilege exists, the judge must be satisfied, on a balance of probabilities, that the individual concerned is indeed a confidential informant.” See also R. v. Lucas, 2014 ONCA 561, 121 O.R. (3d) 303, at paras. 44, 47-48, 60.
[23] In the present case the ITO consistently and repeatedly described the person who provided the information to the police as a “confidential source,” and expressly stated that the confidential source is a “registered resource of the Toronto Police Service.” The use of the descriptive term “confidential source” is certainly an assertion that the individual providing the police with information is a confidential informant. However, it is a conclusory assertion without any factual details in support of the assertion. Further, while describing this individual as a “registered resource of the Toronto Police Service” impliedly suggests that the individual is a confidential informant, this is not the only reasonable interpretation of this description and, again, is somewhat conclusory in nature.
[24] In my view, in these circumstances, where this assertion of privilege is clearly in dispute between the parties, the alleged privilege provides the only potential justification for the redaction of the ITO, and the ITO itself does not establish the existence of the privilege, the Crown should be required to provide some evidentiary materials establishing the existence of the claimed privilege. More particularly, in my opinion, the Crown should provide some evidentiary materials establishing that the person, in providing the information to the police, was given some assurance of confidentiality, or that the individual’s relationship with the police was such that confidentiality was inherently coincident with the providing of information. Again, these evidentiary materials will be filed under seal with the court, will be made a lettered exhibit for the record, and will be for my eyes only. It will not be made available to defence counsel or the accused.
G. Alternative Procedural Means
[25] I have required the Crown to provide the court with: (1) a sealed written explanation justifying the proposed redactions to be made to the ITO; and (2) sealed evidentiary materials that establish the existence of the confidential informant privilege. In my view, in the circumstances of the present case, filing sealed written materials addressing these two issues is likely to be the most convenient and efficient manner of addressing these contentious issues.
[26] This is not, however, the only appropriate procedural mechanism that might properly permit the Crown to establish the existence of the asserted confidential informant privilege and/or the need for any proposed redactions to the original ITO. More particularly, in some cases courts have conducted in camera, ex parte hearings permitting the Crown to lead evidence and make oral submissions in the absence of the accused and defence counsel. See, for example, R. v. Choi, 2013 ONSC 291, [2013] O.J. No. 3587, at para. 11; R. v. Lucas, at para. 19-20, 43-70. Of course, just such a procedure was endorsed as appropriate by the Supreme Court of Canada in R. v. Basi, at paras. 3-5, 7-11, 34, 41-44, 53-58. Nevertheless, given the importance of the “open court principle” as a hallmark of our democratic society and the importance of criminal trial proceedings taking place in the presence of the accused and his or her counsel, such in camera, ex parte hearings should only be conducted as a “last resort.” See Named Person v. Vancouver Sun, at paras. 31, 40-41, 47, 55.
H. Conclusion
[27] In summary, the Crown is required to provide the court with: (1) a sealed document outlining the explanation and/or justification for each of the proposed redactions to the ITO; and (2) sealed evidentiary materials establishing the existence of the claimed confidential informant privilege.
[28] Finally, I would not wish to be taken to have held that such orders are required in all cases where the Crown has brought a “step six” application pursuant to R. v. Garofoli. Cases in which the very existence of the confidential informant is directly challenged are relatively rare in practice. Further, courts may often be able to address the appropriateness of the Crown’s proposed editing of the ITO without requiring a detailed explanation from the Crown as to why such editing is required in order to preserve the anonymity of the confidential informant. In addition, in many cases the precision of the proposed edits may not be of much consequence given the nature of the judicial summary that will eventually accompany the finalized redacted ITO. I have held only that, in the particular circumstances of the present case, such orders are required.
Kenneth L. Campbell J.
Released: October 13, 2015
COURT FILE NO.: CR-731/13
DATE: 20151013
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
CHRIS MCKENZIE
PRE-TRIAL RULING
Procedural Issues on
“Step Six” of Garofoli Application
K.L. Campbell J.
Released: October 13, 2015