Her Majesty the Queen v. Dinish Barnes, 2015 ONSC 6462

COURT FILE NO.: 26010/14

DATE: 2015/10/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DINISH BARNES

E. Marrocco, for the Crown

B. Crothers, for the Accused

Heard: September 14-18, 2015

RULING ON SS. 8 and 24(2) charter application

GARTON J.:

Background and Overview

[1] The accused, Dinish Barnes, is charged with possession of a loaded prohibited firearm, contrary to s. 95(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46 (Count 1), and an offence contrary to s. 92(1), which relates to the same firearm (Count 2). In addition, Mr. Barnes faces two counts of possession of a firearm while prohibited from doing so by reason of an order made under s. 109 (Counts 3 and 4), and possession of a firearm while prohibited from doing so by reason of an order made under s. 110 (Count 5).

[2] The charges arose from the execution of a search warrant at the basement apartment at 126 Downsview Avenue, Toronto, on October 5, 2013. On that day, at 2:50 a.m., the police obtained a telewarrant to search the residence pursuant to s. 487.1 of the Code. Det. Cst. Jason Lennon was the affiant of the information to obtain the warrant (ITO), which contained information received from a confidential informant (CI).

[3] The warrant authorized the police to enter the residence at night in order to search for firearms, ammunition, firearm documentation, receipts for ammunition/firearms, rental agreements or deeds for the address, and cellular phones containing images of Mr. Barnes in possession of a firearm.

[4] On October 5, 2013, at 3:30 a.m., the police, who had been conducting ongoing surveillance of Mr. Barnes, stopped him and a female, Samantha Lee, in a vehicle at a Macdonald’s restaurant in the area of Jane Street and Finch Avenue. The police detained Mr. Barnes pursuant to the grounds in the search warrant, and informed him that they would be executing the warrant at the Downsview address. The police then attended at the apartment after seizing a ring of keys from Mr. Barnes’ front pocket.

[5] The police used one of the seized keys to gain entry, and another smaller key to unlock a safe inside the residence. Inside the safe, the police located a loaded 45 calibre Glock handgun, and a sock containing several rounds of ammunition. Four digital scales, two rounds of ammunition in a plastic container, a photograph of Mr. Barnes, paperwork in his name and some other personal effects believed to belong to him were also found in the apartment.

[6] Mr. Barnes has brought an application pursuant to ss. 8 and 24(2) of the Charter of Rights and Freedoms to exclude as evidence the handgun and other items seized. It is alleged that there were insufficient grounds to justify the issuance of the warrant and that the search was therefore unreasonable.

[7] The version of the ITO disclosed to the defence was heavily edited in order to protect the identity of the CI. Crown counsel, Ms. Marrocco, concedes that based on the redacted ITO and other disclosure provided, the requirement of reasonable and probable grounds for the issuance of the warrant has not been met. Thus, the Crown brought a cross-application to have the court consider the redacted portions of the ITO in accordance with the “step six” procedure set out in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, S.C.J. No. 115, at para. 79.

[8] In anticipation of this proceeding, the Crown re-vetted and re-disclosed the ITO to defence counsel, Mr. Crothers, on August 26, 2015. Some redactions were removed. In addition, the Crown provided the defence with a draft judicial summary in an attempt to disclose the nature of the redacted information while still protecting informer privilege.

[9] In accordance with the step six procedure, I reviewed the draft judicial summary, as well as the unredacted ITO. With the consent of counsel, I held an in camera hearing in the absence of the accused and Mr. Crothers. I proposed various changes and additions to the draft, which Crown counsel adopted. An amended judicial summary was then provided to Mr. Crothers.

[10] After reviewing the amended judicial summary, Mr. Crothers prepared a list of questions seeking further information/clarification (Exhibit 4). Crown counsel responded to these questions. Another in camera hearing was then held, in which I made some suggestions regarding the Crown’s responses, which the Crown adopted. The Crown then provided further responses to the defence (Exhibit 4(a)), and disclosed a time frame within which the CI was formally registered as a confidential informant. The Crown also clarified two entries for drug convictions on Mr. Barnes’ criminal record that were referred to in the ITO.

Application to cross-examine the affiant

[11] After reviewing the amended judicial summary, the Crown’s responses to his questions, and the additional disclosure, Mr. Crothers produced a list of 46 questions that he wished to put to the affiant in cross-examination (Exhibit 5). During his submissions, he added a supplementary question to that list. Most of the issues on which the defence sought leave to cross-examine were resolved by the Crown answering the questions or providing further disclosure by way of Exhibit 6. The two remaining areas concerned i) the affiant’s experience in preparing ITO’s, and ii) the affiant’s training in handling confidential informants, his knowledge of police protocols in that regard, and his knowledge of the handler’s experience in this case in dealing with confidential informants. Following counsels’ submissions, I dismissed the application to cross-examine the affiant in these areas as in my view the threshold requirement/leave test, as set out in Garofoli at para. 88, and in R. v. Pires and Lising (2005), 2005 SCC 66, 201 C.C.C. (3d) 449, at paras. 3 and 31-40 had not been met. My reasons for dismissing the leave application are as follows.

[12] Cross-examination of an affiant is only permitted with leave of the court. In deciding whether to grant leave, the court must have regard to various interests, including the accused’s right to make full answer and defence, the obligation to protect the identity of confidential informants, and the obligation to make effective use of limited judicial resources by avoiding unnecessary and time consuming proceedings.

[13] Leave is only granted if a basis can be shown that the cross-examination would tend to discredit one of the preconditions for issuance of the warrant, or demonstrate intent to mislead the issuing justice. There is no allegation in the present case that Det. Cst. Lennon deliberately attempted to mislead the justice of the peace.

[14] In Pires, at para. 40, the court observed that the reason the test will generally leave just a narrow window for cross-examination is not because the test is onerous but because there is just a narrow basis upon which a search warrant can be set aside. Thus, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focussed on the question to be determined on the Garofoli review – whether there is a basis upon which the issuing justice could have granted the warrant. If the proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted. The court continued:

However, if the proposed cross-examination falls within the narrow confines of this review, 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. Such a strict standard was rejected in Garofoli. A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown.

[15] In the present case, defence counsel sought to cross-examine Det. Cst. Lennon with respect to his experience in writing ITOs, including how many he had written, whether he had ever been cross-examined at a hearing as an ITO affiant, and whether he had ever taken any courses or formal training with respect to swearing an affidavit for a search warrant. Defence counsel submitted that the officer’s experience is relevant to the question of how the issuing justice would have assessed the information set out in the ITO; for example, if an affiant has no experience in preparing ITOs, the issuing justice would likely be more skeptical of the ITO’s contents than if the affiant had extensive experience.

[16] Since the ITO in this case makes no reference to the affiant’s experience, it is clear on its face that the issuing justice was not informed of his experience and thus would not have been in a position to make the assessment that the defence submits is very important in these kinds of applications. This argument can be made on the face of the affidavit and would not be further advanced through cross-examination. In these circumstances, leave to cross-examine should not be granted. See R. v. Ahmed, 2012 ONSC 528, at para. 12, where MacDonnell J. observed that when the point sought to be made through cross-examination can be made with equal force on the face of the affidavit, cross-examination is unnecessary.

[17] I note that the defence has not made any complaint about the specific wording in the ITO or the way in which it was written; for example, that certain passages are confusing or that their meaning is unclear. If there were such complaints, then the experience of Det. Cst. Lennon in writing ITOs may have come into play. In the absence of such complaints, questioning the officer about his experience just to see what he says does not constitute a sufficient basis on which to grant leave to cross-examine. As Crown counsel put it, Det. Cst. Lennon’s experience in writing ITOs – including whether this is his first or his 100th warrant, or his first “good” or his first “bad” warrant – is not likely to assist in determining whether the warrant could have issued. Questions in that regard are more akin to a general discovery-type of inquiry. If this were a basis for granting leave, then leave to cross-examine an affiant with respect to his or her experience in writing ITOs would be granted in every case.

[18] I agree with defence counsel that Det. Cst. Lennon’s experience and training in preparing ITOs could be a relevant consideration in a s. 24(2) analysis if the court were to find that there had been a s. 8 Charter breach. However, the test for granting leave to cross-examine the affiant does not encompass s. 24(2) considerations: Pires makes it clear that the focus of the leave requirement is on the question to be determined on the Garofoli review – that is, whether there is a basis upon which the issuing justice could have granted the warrant.

[19] In the present case, at the end of counsels’ submissions with respect to the Garofoli review, I inquired as to whether defence counsel wished to renew his application to cross-examine Det. Cst. Lennon in the event that I found there had been a s. 8 breach. Mr. Crothers did not seek to renew his application. He submitted, however, that since the ITO makes no mention of Det. Cst. Lennon’s experience in preparing ITOs, it may be inferred that his experience was not extensive. He submitted that in these circumstances, the officer’s experience or lack thereof should be regarded as a neutral factor in the s. 24(2) analysis – that is, that neither good faith nor bad faith should be inferred from any error or omission he may have made. Crown counsel agreed with this approach.

[20] Defence counsel also sought to cross-examine Det. Cst. Lennon with respect to his training, if any, in handling confidential informants; whether he was aware of a Peel Regional Police Service handbook and/or a Toronto Police Service handbook regarding confidential informants; if so, whether he was aware at the time that he wrote the ITO in this case that these handbooks contained rules and regulations to be followed by police when dealing with confidential informants; and whether the affiant was aware that the Organized Crime Enforcement Unit, to which he had been seconded at the time of this investigation, had its own handbook regarding the handling of confidential informants.

[21] In terms of relevance, I note that the particular police force or forces with which the CI was registered have not been disclosed in this case. Thus, the relevance of any CI protocols that may be in place at the two police forces named by the defence is questionable. Cross-examination of the affiant with respect to the procedures followed by those forces could potentially have no bearing whatsoever on what transpired in this case.

[22] Counsel for Mr. Barnes submitted that Det. Cst. Lennon’s ability to gauge the reliability of the CI’s information, which he received via the CI’s handler, would be affected by his own knowledge of the rules and regulations that govern the handling of informants and his own level of experience in that regard. It would also be affected by his knowledge of the interactions that took place between the handler and the CI, and the handler’s level of experience in dealing with informants. For example, was Det. Cst. Lennon aware of whether the handler follow established protocols? Did the handler elicit information from the CI by asking leading questions or making suggestions to him or her? Defence counsel submitted that all of this information would have assisted the justice of the peace in assessing the reliability of the CI’s information and determining whether the warrant should be issued.

[23] The ITO is silent on all of these matters. There is no reference to protocols or handbooks for handling confidential informants. There is no mention of Det. Cst. Lennon’s knowledge of such protocols, or his training or experience in dealing with confidential informants. Nor did Det. Cst. Lennon reference the handler’s training with respect to any protocols. It is apparent on the face of the ITO that the issuing justice did not have before him any of this information, which the defence submits would have been important in terms of his ability to gauge the credibility and reliability of the CI’s information. Thus, any argument that the defence wishes to address in terms of these omissions or deficiencies can be made on the face of the warrant and would not be further advanced through cross-examination. As stated earlier, leave to cross-examine should not be granted when the point sought to be made through cross-examination can be made with equal force on the face of the affidavit.

[24] Counsel for Mr. Barnes expressed concern about search warrant applications when the affiant is not the CI’s handler. Mr. Crothers submitted that in these situations, it is more difficult to expose any potential frailties in the handler’s dealings with the informant. He referred to Trafford J.’s findings in R. v. Eagle, [1996] O.J. No. 2867 (Ont. Ct. (Gen. Div.)) as examples of such frailties. It was submitted that when the information received by the affiant is second-hand – that is, passed on to him through the CI’s handler – there is a particular need to explore in cross-examination the affiant’s experience in dealing with CIs, and how the affiant came to believe that the CI’s information was reliable.

[25] I would first observe that in the present case, where the identification of the handler could lead to the identification of the CI, the need for the affiant to be an officer other than the handler is abundantly clear.

[26] Secondly, the facts in Eagle were very different from this case in the sense that very important information, such as the CI’s criminal record, was omitted from the ITO. The defects on the face of the warrant led to an allegation of deliberate attempts by the affiant, who was also the handler, to mislead the issuing justice by withholding relevant information. This in turn led to what proved to be a very problematic cross-examination of the handler. In the present case, the ITO does not, on its face, lend itself to an argument that there was a deliberate attempt to mislead the justice of the peace, nor is that a basis on which the defence seeks leave to cross-examine Det. Cst. Lennon.

[27] Thirdly, it is important to bear in mind that second-hand information in the context of a search warrant application, where one officer passes on information to another officer, is different from second-hand source information. Police officers often rely on each other’s information or grounds to further a police investigation. That fact does not mean that the information cannot constitute or form part of reasonable and probable grounds. An officer may rely on the information of another officer without questioning or interrogating them. What happens in the context of a search warrant application, where a handler passes on CI information to the affiant, is, as Crown counsel put it, “forward driven”: the affiant will move forward with an investigation, including surveillance, in an attempt to corroborate the tip to a reasonable degree such that the affiant has a basis to place it before an issuing justice. What is material to explore is not so much the affiant’s own experience in dealing with CIs, or what the affiant knew about the handler’s experience in that regard, but rather what happened after receipt of the tip, in terms of the investigation, to get the affiant to the point where he or she believed there were reasonable and probable grounds to support the issuance of a warrant.

[28] A further consideration in determining whether the defence should be granted leave to cross-examine the affiant concerns the court’s obligation to protect the CI’s identity. Where a search warrant is based on information from a confidential informant, the court must be alert to the potential danger that cross-examination may elicit information that discloses or tends to disclose the identity of the informant. As noted by McLachlin J. (as she then was) in Garofoli, at para. 146, once a damaging statement is made in answer to a question in cross-examination, editing is to no avail. Attempts to restrict the scope of cross-examination are notoriously fallible. Moreover, it is often difficult to predict when a particular question will evoke a response that encroaches on a prohibited area.

[29] In the present case, where the identification of the handler could possibly lead to the identification of the CI, the concerns expressed by McLachlin J. are very real. Questions that explore what the affiant knew about the handler’s experience in dealing with CIs, which would include the handler’s interactions with the CI in this case, and whether those interactions complied with various protocols, could very easily stray into the area of the nature of the relationship between the handler and the CI, such as where, when, or how often they met. Such information could identify or tend to identify the handler and the CI. For this reason alone, the proposed cross-examination ought not to be allowed.

[30] Similar applications to the one before this court were brought by the accused in Ahmed and in R. v. Greaves-Bissesarsingh, 2014 ONSC 4900. In Greaves-Bissesarsingh, the accused sought leave to cross-examine the affiant on his general understanding of proper protocols for handling confidential informants. Code J., at para.18, found that such questioning fell into the category of general discovery that could apply in any case involving confidential informants. If allowed, it would effectively convert the leave requirement in Garofoli and Pires into cross-examination as of right in any such case. Code J. dismissed the application.

[31] MacDonnell J. came to a similar conclusion in Ahmed, where the accused sought leave to question the affiant about procedures that were followed in obtaining and handling CI information. In dismissing the application, he found that although the proposed cross-examination might be interesting, there was no basis to show that it may assist in undermining the grounds for the authorization. In substance, the applicants were seeking to be allowed to cross-examine in order to explore whether grounds for cross-examination existed. To permit that to occur would essentially dispense with the Garofoli requirement.

[32] I have come to the same conclusion in the present case. It has not been shown that the proposed questioning is likely to discredit the preconditions for the issuance of the warrant. For the reasons stated, the application to cross-examine the affiant is dismissed.

The Information to Obtain the Search Warrant

[33] Certain paragraphs of the edited ITO sworn by Det. Cst. Lennon, along with the judicial summary relevant to those paragraphs, are reproduced below. The excerpts from the judicial summary appear in italics.

Introduction of the Affiant

[34] Under the heading, “Introduction of the Affiant,” Det. Cst. Lennon states that he has been employed by the Peel Regional Police Service since August 2003, and is currently seconded to the Organized Crime Enforcement – Guns and Gang Task Force, working with the Toronto Police Service.

[35] At para. 2, Det. Cst. Lennon states:

I am the lead investigator into a complaint [redacted] located at 126 Downsview Avenue in Toronto. I have personal knowledge of the facts hereinafter deposed to, except where it is expressly stated.

Discloses some particulars concerning the genesis and focus of the investigation in relation to a firearm.

Involved Persons and Addresses

Officers

[36] At para. 14, under the heading “Officers,” Det. Cst. Lennon states:

[Redacted] is the source handler in this investigation.

Identifies the source handler.

In Exhibit 4(a), counsel for Mr. Barnes queried whether the source handler was in good standing, whether the handler had any discipline issues, whether the affiant had any knowledge as to whether the handler had followed his or her police agency’s respective CI handbook, and whether the affiant acknowledged the existence of a CI handbook and the rules and guidelines that must be followed. Crown counsel advised that the ITO did not contain any of this information. She also advised that the affiant was aware of whether the handler was in good standing with his/her police agency. The Crown did not provide any further details in this regard, as information about the handler may tend to identify the CI.

[19] Paragraph 15 of the ITO states that members of the Gun and Gang Task Force – Team 1B conducted the surveillance in this investigation.

Confidential Source

[37] At para. 16, under the heading, “Confidential Source”, Det. Cst. Lennon states:

The source in this investigation is registered [redacted]. The source provided recent, detailed and corroborated information pertaining to Dinish Barnes and the address associated to him. See Appendix “D” for further details in relation to the source.

Discloses details concerning the source’s registration.

In Exhibit 4(a), the Crown confirmed that the source was a registered CI. The Crown also indicated that the ITO does not indicate how long the source had been registered, whether the affiant’s knowledge about the CI’s registration was direct or based on hearsay, or whether the affiant had any direct dealings with the CI.

Target

[38] At para. 17, under the heading, “Target”, Det. Cst. Lennon states:

Dinish Barnes with a date of birth of 1985-12-05 is the only target within the investigation. Barnes [redacted] currently living in the basement of 126 Downsview Avenue in Toronto.

Discloses the affiant’s summary of certain details in the source information.

[39] Paragraphs 18 and 19, under the respective headings of “Address” and “Vehicles”, state:

126 Downsview Avenue in Toronto is the only address being investigated in the matter. The address is a detached brick home and Barnes is currently residing in the basement.

BPBL556 is a black Chrysler 200 rental car belonging to Enterprise Rent a Car in London that is being used by Dinish Barnes and that has been observed pulling into the driveway of the residence and used by Barnes.

Background to the Investigation

[40] Paragraph 20 states:

The affiant received confidential source information. The source had recent, detailed [redacted] knowledge in regards to Dinish Barnes.

Discloses the affiant’s summary concerning the nature and quality of the source information, as well as some additional particulars provided by the source.

In Exhibit 4(a), the defence queried whether para. 20 is an accurate reflection of the information about the CI in Appendix D, and whether it reminds the reader of “the source of the summary (i.e. direct from the CI, or hearsay from the handler)?” The Crown responded “yes” to these questions.

[41] Paragraphs 21 and 22 state:

The affiant was able to further research and corroborate the information provided by the confidential source using Police database queries and surveillance.

The confidential source in this matter is registered and proven reliable in past investigation(s) and has been deemed reliable. The information provided was found to be detailed, accurate and believed to be credible.

[42] Paragraph 23 states:

Based off [sic] information provided, Barnes is believed to be in possession of a firearm [redacted] identified address.

Discloses the affiant’s belief concerning matters related to the address sought to be searched.

[24] Paragraph 24 states:

As a result, a Criminal Code search warrant is being sought for the identified residence in order to locate and recover the items listed in Appendix A, which will afford evidence towards the offences listed in Appendix B.

Investigative Chronology

Overview of the Confidential Source Information

[43] Under the heading, “Overview of Confidential Source Information”, para. 25 states:

[Redacted] 2013, I received information from [redacted] that had been relayed [redacted] from a Confidential Informant. All information provided by the informant, including their identity is deemed confidential. For the purpose of this affidavit, all mention of this Confidential Informant will be referred to as CI. (See Appendix “D” for details concerning CI’s history and reliability and all specific details like dates, times and locations.)

A summary of the information provided from the CI is as follows:

[Redacted] Dinish Barnes [redacted] a gun. [Redacted]

Barnes is a black male who is about 5’10” tall with a medium build.

Barnes [redacted] 126 Downsview Avenue in Toronto. [Redacted]

The CI was shown a mug shot photograph of Dinish Barnes with a date of birth of 1984-12-05 and identified Barnes as the same person known to him.

Discloses the month and date when the affiant received the source information from the handler. Discloses the work experience of the handler, who has several years of policing experience.

• Sets out specific source information in relation to Barnes and a firearm

• Sets out specific source information in relation to Barnes’ physical description

• Sets out specific source information in relation to Barnes and the address of 126 Downsview Avenue

• Sets out additional specific source information in relation to Barnes’ lifestyle activities

• Sets out how the source identified Barnes

In response to defence counsel’s query in Exhibit 4(a) as to whether the CI’s knowledge was based on first-hand information, Crown counsel indicated that there is some first-hand information in the ITO. The Crown also disclosed that there is a time period provided in the ITO during which the CI had the opportunity to gather the information purporting that a firearm might be found at 126 Downsview, and that the ITO is silent as to whether the CI’s handler had any experience handling other CIs.

Investigative Checks

[44] Paragraph 26 of the ITO sets out the results of Det. Cst. Lennon’s police database queries with respect to Mr. Barnes.

[45] Paragraph 26 (a)(i) states:

(a) C.P.I.C. queries on Barnes reveal:

i) Dinish Barnes with a date of birth of 1984-12-05 is currently on charges with Toronto Police Service for conspiracy to commit an indictable offence and robbery while armed with a firearm. Barnes is currently on a recognizance of bail with numerous conditions in relation to these charges.

[46] At the time that Det. Cst. Lennon prepared the ITO, CPIC was still showing the conspiracy and robbery charges as outstanding – the Crown has produced the source document upon which the officer relied. However, Mr. Barnes was actually discharged on these offences in September 2013, following the preliminary hearing. Thus, at the time of this investigation, Mr. Barnes was not facing any outstanding charges and was not bound by any bail conditions. The Crown concedes that other than the reference to Mr. Barnes date of birth, this paragraph should be excised from the ITO.

[47] Para. 26(a)(iii) repeats the above error, indicating that Mr. Barnes was currently bound by a bail condition to reside at 14 Sir Jacob Crescent in Brampton. Thus, this paragraph must also be excised. I agree with defence counsel’s submission that “14 Sir Jacob Crescent in Brampton” should remain as a reference to Mr. Barnes’ last known address.

[48] In paras. 26 (a)(ii), (iv) and (v), Det. Cst. Lennon states that the CPIC checks described Mr. Barnes as a non-white male, 5 feet 11inches tall, 166 pounds, with black hair and brown eyes, and who uses the alias “Grizz.” He was prohibited for life from possessing firearms as a result of convictions on June 22, 2006, for robbery with a firearm and forcible confinement, which were laid by the Caledon detachment of the Ontario Provincial Police.

[49] Paragraph 26(a)(vi) states that Mr. Barnes has ten criminal convictions as an adult for the following offences:

1. Fail to comply with recognizance (2005-01-27 conviction with Peel Regional Police Service)

2. Uttering threats (2005-10-05 conviction with Peel Regional Police Service)

3. Fail to comply with recognizance (2005-10-05 with Peel Regional Police Service)

4. Traffic in a scheduled substance (2005-12-23 conviction with Peel Regional Police Service)

5. Fail to comply with a recognizance (2006-03-24 conviction with Maplehurst Correctional Facility)

6. Possession of a scheduled substance (2006-03-24 conviction with Maplehurst Correctional Facility)

7. Fail to comply with probation (2006-03-24 conviction with Maplehurst Correctional Facility)

8. Robbery (2006-06-22 conviction with Caledon Ontario Provincial Police)

9. Forcible confinement (2006-06-22 conviction with Caledon Ontario Provincial Police)

10. Possession of a scheduled substance (2007-10-23 conviction with Fernbrook Correctional Institution)

[50] In para. 26(b) of the ITO, Det. Cst. Lennon states that U.C.R. queries (Peel Regional Police) have 32 documented contacts where Mr. Barnes “has been accused, victim, witness, suspect or other.” He then lists some of those occurrences as follows:

i) 3 occurrences were weapons related and 5 occurrences were drug related.

ii) I reviewed Peel Regional occurrence (05-228703) which occurred on 2005-11-21 in relation to drug trafficking and learned the following:

1. Plain clothes police officers were in the area of Lilly Crescent and Peelton Heights in Brampton and observed Barnes.

2. Barnes was observed meeting with another male in the area and what was believed to be a hand to hand drug transaction was observed.

3. Both males were arrested and Barnes was charged with trafficking crack cocaine to the other male party.

4. 1.5 grams of crack cocaine was recovered.

5. Barnes was convicted on 2005-12-23 of trafficking a controlled substance and sentenced to 90 days in custody + 18 months of probation and a firearms prohibition.

[Redacted] Discloses the affiant’s belief based on the database checks and how the checks corroborate the source information.

[51] In para. 26(b)(iii), Det. Cst. Lennon states that he reviewed Peel Regional Police occurrence 05-228778, dated November 22, 2005, in relation to possession of marijuana for the purpose of trafficking, and learned the following:

1. On November 22, 2005, Barnes was investigated in the area of Steeles Avenue and Kennedy Road in Brampton and found to be in breach of a recognizance. He was arrested.

2. A search incident to arrest revealed a concealed pack containing 25.5 grams of marijuana.

3. Barnes was charged with possession for the purpose of trafficking.

4. Barnes was convicted on December 23, 2005, of possession for the purpose of trafficking and sentenced to 90 days in custody + 18 months of probation and a firearms prohibition.

[52] During the course of this motion, Crown counsel clarified the timing of Mr. Barnes’ arrests and convictions with respect to the two above-named drug offences. Mr. Barnes was arrested on November 21, 2005, on the charge of trafficking cocaine and released on a Promise to Appear. The following day, that is, on November 22, 2005, he was arrested on the charge of possession of marijuana for the purpose of trafficking and detained. Both drug charges were resolved on December 23, 2005, at which time concurrent sentences of 90 days, in addition to 30 days of pre-trial custody, were imposed, plus probation for 18 months.

[53] At para. 26(c), Det. Cst. Lennon states that the Toronto Police Service has eight documented contacts where Mr. Barnes has been “accused, victim, witness, suspect or other.” In paras. 26(c)(i) and (ii), he itemizes some of these contacts, including the allegations regarding the charges on which Mr. Barnes was discharged in September 2013 at the preliminary hearing but which Det. Cst. Lennon believed were still outstanding. Thus, paras. 26(c)(i) and (ii) are inaccurate and must be excised. Those paragraphs state as follows:

i) 2 of the occurrences are firearms related.

ii) I reviewed Toronto Police Occurrence # 4139739, which occurred on 2011-07-30 in relation to a robbery and learned the following:

1. On July 30, 2011, between 5:15 am – 5:30 am, the two victims, both from Brooklyn, New York, were in their hotel room at the Delta Chelsea located at 33 Gerrard Street West in Toronto.

2. The victims, both male, had met 4 females at a Carribana party and invited them back to their hotel room.

3. Once in the room, one of the females got on her phone and, shortly after, between 5 and 7 males showed up and forced their way into the victims’ room.

4. One of the suspects then pulled out a hand gun and held the victims while the others robbed the victims of cash, jewelry, and identification.

5. All suspects fled the scene and police were contacted and attended.

6. Statements were taken and video surveillance was collected at the scene.

7. Surveillance footage and further investigation led to Barnes being identified as one of the males involved in the robbery.

8. As a result, on July 12, 2013, Barnes was located while in custody on other charges in London, Ontario, and charged with Conspiracy to commit an indictable offence and robbery with a firearm.

9. Barnes is still before the courts for this matter.

[Redacted] Discloses the affiant’s belief based on the database checks, namely that the affiant believes that Barnes’ past involvement in robberies/firearms possession and his involvement in the drug trade would, in the affiant’s experience, lead to the need for protection due not only to previous crimes committed against others, but also to avoid being the target of a robbery oneself, as being involved in the drug trade is a cash-based illicit activity, and robberies for product or money are frequent.

[54] Det. Cst. Lennon also conducted queries using the Police Automated Registration Information System (PARIS). At para. 26(d), he states that he learned that Mr. Barnes’ driver’s licence was suspended on April 15, 2006, that his last listed address was 9 Lilly Crescent in Brampton, and that he is currently unlicenced.

[55] At para. 26(e), Det. Cst. Lennon states that a query regarding the licence plate BPLB556 revealed that it was registered to a 2013 black Chrysler (2TR) 4-door automobile. The registered owner was Enterprise Rent-A-Car, located at #1-845 Bradley Avenue in London. The Vehicle Identification number is 1C3CCBBB8DN500130. [Redacted]

Discloses the affiant’s belief based on the database checks, including the affiant’s belief that Barnes has been surveilled operating the vehicle and attending at the address [see revised redaction]

In Exhibit 4(a), defence counsel raised the following questions with respect to the judicial summary: Was the affiant’s belief that Mr. Barnes has attended the residence at 126 Downsview supported by direct police observation? If so, over what time period? Is the affiant’s belief that he has been attending/living at the address of 126 Downsview explained? Does it state living, or attending? Is the affiant full, fair and frank with the statement of his belief, or does he leave open the possibility that the target has only merely attended the residence once? Is the affiant’s belief a “declaration” which gives the reader no other option, or is it framed fairly which offers alternative explanations?

The Crown’s response to these questions was that the police observations at 126 Downsview are contained in para. 27, which is set out below.

Surveillance

[56] At para. 27, Det. Cst. Lennon sets out the observations of members of the Integrated Gun and Gang Task Force, who set up surveillance on 126 Downsview Avenue on October 4, 2013. Those observations were as follows:

a. The residence is a large 2-storey detached house with a 2-car garage.

b. The residence is a light coloured brick with a double door main entrance and with two doors located off to the right side of the garage.

c. There were no vehicles observed within the driveway. [Redacted] Sets out specific source information.

d. Members of the Integrated Gun and Gang Task Force are currently conducting static surveillance on the residence.

e. At 12:05 a.m., a black Chrysler 200 bearing Ontario licence #BPLB556 pulled into the driveway of the residence and 2 male blacks were observed exiting the vehicle and walking up to the side entrance of the residence and entering.

f. Barnes was identified as one of the males entering the residence.

g. Surveillance is being continued pending the approval of this affidavit.

Note: The ITO was vetted and disclosed to the defence shortly after Mr. Barnes’ arrest as part of the disclosure. The disclosure included a note clarifying an error made by Det. Cst. Lennon with respect to the two males who exited the Chrysler. One of those individuals was actually a female with black hair, who was later identified as Samantha Lee. Det. Cst. Lennon explained that he wrote down what he thought he heard over the police radio at the time that he was drafting the ITO. He subsequently learned after the search warrant was executed that the people observed were Mr. Barnes and Ms. Lee. Counsel agree that the reference in the ITO to the second individual as a male should be excised.

Grounds to believe that the items to be seized are at the place to be searched

[57] At para. 28, Det. Cst. Lennon states:

As a result of information obtained from a proven Confidential Informant (C.I.), and through subsequent Police investigation, I believe that Dinish Barnes is currently living at 126 Downsview Avenue in Toronto and that he is currently in possession of a firearm [redacted].

The information provided by the informant is very detailed and compellable.

[Redacted]

The information provided by the informant has been examined and independently corroborated through Police records checks and surveillance.

Discloses the affiant’s belief concerning Barnes’ association to 126 Downsview. Discloses the affiant’s belief concerning criminal activities of Barnes [see revised redaction]

• Sets out information which also appears in paragraph 25 and has been redacted [see revised redaction in para. 25], including the fact that the source information is recent

• Sets out information which also appears in Appendix D and has been redacted

In Exhibit 4(a), defence counsel raised the question as to whether the statement that “the information provided by the informant has been examined and independently corroborated through Police records checks and surveillance” could be considered as “a bold declaration that embellishes the accuracy and level of corroboration of the CI’s information.” The Crown responded that the extent of the police corroboration is clear.

Grounds to Believe that the Warrant should be Sealed

[58] Under the heading, “Grounds to Believe that the Warrant should be Sealed”, Det. Cst. Lennon states:

This affidavit [redacted] detailed information from a confidential informant. This information is provided on the basis that their identity will not be revealed. [Redacted] I believe that the disclosure of this warrant application and related documents would compromise the identity of the confidential informant and that it is in the best interest for their safety that the documents pertaining to this application be sealed from public view.

Discloses the affiant’s belief concerning whether or not the source information is detailed [see revised redaction].

Conclusion

[59] Under the heading “Conclusion”, Det. Cst. Lennon states:

Based on all the information presented, I believe [redacted] I request that a Criminal Code search warrant be granted for the residence located at 126 Downsview Avenue (basement) in Toronto in order for Police Officers to enter, search and seize the aforementioned items, which will afford evidence of the offence of unauthorized possession of a firearm, contrary to section 91(1) of the Criminal Code of Canada.

Discloses detailed information concerning the affiant’s beliefs about the address, namely that there is a firearm at the identified residence.

Appendix D

[60] Appendix D, which sets out information regarding the CI, has been entirely redacted except for the following statement:

The CI is aware that it is an offence to provide false information to Police.

[61] The judicial summary of Appendix D is as follows:

• Sets out the length of time that the handler has known the source

• Discloses that the source has given reliable information to the handler in the past, including details of other investigation(s). Note: This entry in the judicial summary answers the supplementary question posed by the defence in Exhibit 6 – that is, whether the handler had first-hand knowledge of the case or cases that the CI was involved in. The handler did, in fact, have first-hand knowledge of the case or cases.

• Discloses whether or not the source has a criminal record or outstanding charges, including any charges or convictions for crimes of dishonesty

• Discloses the source’s motivation for providing information

• Discloses personal information in relation to Barnes provided by the source

• Discloses source information in relation to Barnes’ activities

• Discloses source information in relation to Barnes’ criminal activities

• Discloses source information in relation to the address of 126 Downsview Ave.

• Sets out some first-hand source information

• Sets out some detailed and specific source information

• Sets out some recent source information in relation to Barnes and a firearm

[62] The following is a list of the questions posed by defence counsel regarding Appendix D, and the answers (in italics) provided by the Crown in Exhibit 4(a):

a) Does the affiant explain how long the handler has been the actual handler of the CI, as opposed to just “knowing” him/her? No differentiation is made. The Crown later verbally disclosed that the handler had known the CI since the date the CI was registered. That precise period of time was not disclosed, but a range of six months to five years was provided. Det. Cst. Lennon was aware of the length of time that the CI had been a registered informant, and had asked the handler this question.

b) Is the CI’s history of providing past information an exhaustive list? Does it explain the results of all tips the CI has provided? All tip(s) acted on by police are in the ITO. To the affiant’s knowledge, the CI has not provided unreliable information in the past.

c) Does it describe over what time period the CI has provided information to the police? Yes

d) Does it explain if the CI has had any other handler? Not in the ITO

e) Does the affiant explain the definition of “crimes of dishonesty”? Is the record, if it exists, of the CI actually listed? The record, if one exists, is provided.

f) Does the affiant include the details of the CI’s contact with the police, under any circumstances, as he has in relation to Mr. Barnes, see 26(b), 26(d)? May tend to identify CI.

g) Does the affiant, if a record exists, list the record the same way he did for Mr. Barnes (each individual entry separate)? The record, if it exists, is provided.

h) Does the affiant state if the CI’s information for each entry is based on first-hand knowledge, or hearsay? Yes

i) Is there clarification of the “first-hand source information” compared to other information which is NOT “first-hand”? – that is, is it plain for the reader to tell the difference? It is plain for the reader.

j) Does the affiant refer to whether the CI provided a first-hand account, or not, with respect to information of a firearm existing in 126 Downsview? Yes, the affiant refers to whether the information is first-hand or not.

k) Does the affiant stipulate the difference between first-hand knowledge and hearsay regarding knowledge of a gun in the residence? Yes.

l) If the affiant refers to corroboration (completely unknown), is it made clear to the reader what details the police have corroborated which could be considered commonplace details, ordinary every day information? Or were the police able to corroborate distinctive features which remove the CI information from ordinary innocent conduct? The extent of the corroboration is clear.

m) Whatever corroboration is listed, does the affiant’s reference to the information gathered by police “conform sufficiently to what one would have anticipated based on the CI’s information, such that the possibility of coincidence, mistake, or falsehood is reduced to a degree that is tolerable in the context of the reasonable grounds standard?” (R. v. Farrugia, 2012 ONCJ 830, at para. 110) The extent of the corroboration is clear.

n) Could the statement at para. 28 that the “information provided by the informant has been examined and independently corroborated through police records checks and surveillance” be considered to be a bold declaration that embellishes the accuracy and level of corroboration of the CI’s information. The extent of the corroboration is clear.

Conclusion in Appendix D

[63] The conclusion in Appendix D has been entirely redacted. The judicial summary of the conclusion is as follows:

• Sets out the basis for the affiant’s belief that the source is credible and that the source information is compelling. Specifically, the affiant believes that the source’s past and current attributes strengthened the reliability and credibility of the source and further enforce the compelling nature of the information provided.

• Sets out the affiant’s belief that the source is truthful and accurate and that this is the reason police are seeking a search warrant

The Law and Analysis applicable to the s. 8 Motion

Issue # 1: Whether the judicial summary and other information disclosed to the defence are sufficient to enable the accused to mount a challenge to the warrant such that his right to make full answer and defence is not impaired

[64] In Garofoli, Sopinka J. described the step six procedure as follows:

The Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. 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. [Emphasis added].

[65] The position of the defence is that the test in step six has not been met – that is, Mr. Barnes is not sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In other words, it is submitted that Mr. Barnes is not able to make full answer and defence. Thus, the court cannot consider the unredacted ITO in determining whether there has been a breach of Mr. Barnes’ s. 8 Charter rights.

[66] In the recent decision of the Court of Appeal in R. v. Crevier, 2015 ONCA 619, at para. 42, Rouleau J.A., in speaking for the Court, emphasized that the objective in applying the sixth step is to balance conflicting interests. On the one hand are the interests of law enforcement and the protection of informers, and on the other is the accused’s right to make full answer and defence.

[67] A judge can accede to a Crown request to proceed to step six as long as the accused is “sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.” Put another way, the judicial summary of the redacted material provided to the accused, combined with the redacted ITO, must be enough to ensure the accused is in a position to exercise his or her right to make full answer and defence. Only then can step six be employed. However, in assessing the summary’s sufficiency, account is also to be taken of the fact that the accused has received disclosure, that he or she can, with leave, cross-examine the affiant, and that he or she can lead evidence on the application. In addition, the right to make full answer and defence is to be assessed taking into account that a Garofoli hearing is an admissibility hearing, not a trial of the merits: Crevier, at para. 43.

[68] Rouleau J.A., at paras. 54-60, took exception to the description of an accused’s right to make full answer and defence on a Garofoli application as “attenuated.” He found that this term is misleading as it suggests that the right is “reduce[d in] strength, effect, or value.” He went on, however, to state that because a Garofoli hearing is a hearing on the admissibility of evidence, the right to full answer and defence must be viewed in context and balanced against other interests. At para. 101, he stated:

As I have explained, I do not consider that the constraints imposed when step six of Garofoli is invoked attenuate or impair the right of full answer and defence. Step six involves a balancing between the need to maintain informer privilege and the accused’s right to challenge the ITO. Properly applied, step six achieves this balance without “attenuating” the right to full answer and defence. The right is defined in context; it is not limited or reduced.

[69] At paras. 70-72, Rouleau J.A. notes that although it could be argued that it is impossible for an accused to meaningfully challenge whether the three factors set out in R. v. Debot, 1986 113 (ON CA), [1986] O.J. No. 994, (1986), 30 C.C.C. (3d) 207 (Ont. C.A.); aff’d at 1989 13 (SCC), [1989] 2 S.C.R. 1140, S.C.J. No. 118, have been met if the accused does not have access to the redacted information, step six of Garofoli clearly contemplates this situation. The only caveat is that the accused must be “sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.” He observed that there are two important aspects of this caveat. One is that the accused need be aware of only the nature of the redacted details, not the details themselves. The other is that the accused’s awareness, gained through the judicial summary and other available information, must be sufficient to allow the accused to mount a challenge of the redacted details both in argument and by evidence.

[70] In the present case, the defence has been provided with the following material:

i) the revised redacted ITO;

ii) the judicial summary;

iii) the amplification of the judicial summary (Exhibit 4(a));

iv) answers to the questions posed by the defence in Exhibit 6;

v) the initial disclosure; and

vi) additional disclosure, which provided details regarding the accused’s arrest and release on a promise to appear on November 21, 2005, for trafficking in cocaine, his arrest and detention the following day on a charge of possession of marijuana for the purpose of trafficking, and the concurrent sentences imposed for both offences on December 23, 2005. The document that led to Det. Cst. Lennon’s mistaken belief that Mr. Barnes was on bail for conspiracy and armed robbery was also disclosed. In addition, the Crown provided a range of time – six months to five years – in terms of how long the CI had been registered and had known the handler.

[71] Rouleau J.A. found that “despite not having access to the redacted information, the accused, using a well-crafted judicial summary as well as the disclosure received, the redacted ITO, and any cross-examination of the affiant and evidence tendered, will nonetheless be in a position to mount a sub-facial attack and challenged the adequacy of the ITO. The accused can, for example, highlight areas of omission for the reviewing court, attack the steps (or lack thereof) taken to corroborate the information received from the informer, and make arguments in the alternative and on general principles of informer reliability”: Crevier, at para. 77. In the present case, defence counsel canvassed all of these areas and addressed alternative arguments in challenging the validity of the warrant.

[72] For example, as outlined earlier in these reasons, defence counsel highlighted areas of omission, such as the failure of the ITO to outline Det. Cst. Lennon’s experience in preparing ITOs. It was argued that without this type of information, the issuing justice was not in a position to properly assess the information that Det. Cst. Lennon included in the ITO, or its thoroughness. The ITO also made no reference to Det. Cst. Lennon’s training or experience, if any, in dealing with confidential informants. It was therefore submitted that the issuing justice would not have been able to properly assess the affiant’s ability to gauge the CI’s information when attesting to its reliability. An affiant officer who is very experienced in dealing with informants would be more likely to have a better sense of what is reliable CI information than would an officer who has no such experience. By referencing these omissions in his submissions, defence counsel was able to point to potential frailties in the ITO.

[73] Defence counsel was also able to attack the adequacy of the police efforts to corroborate the CI’s information, submitting that it did little to corroborate any substantial information beyond what was easily attainable through common knowledge. The brevity of the surveillance did not allow the police to determine whether Mr. Barnes regularly attended or lived at 126 Downsview Avenue, or if the black Chrysler observed pulling into the driveway at 12:05 a.m. on October 5, 2013, regularly parked there. The police were unable to ascertain which apartment Mr. Barnes entered when he attended at the address. Defence counsel pointed out that there was no surveillance of 14 Sir Jacob Crescent in Brampton, where Mr. Barnes was required to live while on bail for the conspiracy and armed robbery charges – a bail order that Det. Cst. Lennon mistakenly believed was still in force at the time of this investigation.

[74] Defence counsel was also able to make arguments based on alternative and/or hypothetical scenarios, and on general principles of informer reliability. For example, although the judicial summary indicates that the ITO discloses the CI’s motivation for providing information, it does not disclose what that motivation was. Defence counsel, however, referred to various possible motivations, such as competition, financial gain, or consideration for outstanding criminal charges. He then addressed how each of these motivations might affect the weight that could be accorded to the CI’s information.

[75] Defence counsel took a similar approach regarding the judicial summary’s disclosure that the CI had given reliable information to the handler in the past, including details of other investigation(s). Defence counsel asked the court to consider both the nature and number of the other investigation(s). It was submitted, for example, that if a prior investigation(s) involved and led to the recovery of a firearm, it would potentially have more weight in terms of supporting the reliability of the CI’s information than if it involved a fraud or theft. The reliability of the CI’s information might also be enhanced if the CI was ingrained in the criminal subculture, where he or she would more likely have access to information about a firearm than if the CI was involved strictly in white collar crime.

[76] Defence counsel submitted that the reliability of the CI’s information may be enhanced if the CI had been providing information to the handler for a year or two. However, he submitted that anything less than that time frame should be regarded as a neutral factor.

[77] Defence counsel submitted that Mr. Barnes’ criminal record was of limited value in terms of corroborating the CI’s information, given the age of the record (the last conviction was in 2007), and the absence of any convictions for firearms offences. He submitted that in these circumstances, the only way in which Mr. Barnes’ record could constitute corroboration would be if the CI knew or was familiar with it; for example, if the CI knew that Mr. Barnes had been in custody in London, Ontario.

[78] The judicial summary does not disclose whether the CI has a criminal record. Rather, it states that the ITO discloses whether or not the CI has a criminal record or outstanding charges, including any charges or convictions for crimes of dishonesty. Again, in his submissions, defence counsel addressed various alternative scenarios and how certain convictions or pending charges could affect the credibility of the CI’s information. For example, crimes of dishonesty, such as theft, fraud, uttering a forged document, obstruct police, obstructing justice, or perjury, would raise more serious concerns than a conviction for assault. Defence counsel also submitted, however, that a lengthy criminal record for offences not involving dishonesty could detract from the credibility of the CI’s information – especially if the CI’s motivation for providing the information was consideration with respect to outstanding charges, yet he or she continued to get into trouble and accumulate criminal convictions.

[79] The judicial summary and Exhibit 4(a) indicate that the ITO sets out “some first-hand information” from the CI. They also indicate that it is clear to the reader as to what information is first-hand and what is hearsay, and that the difference between first-hand and hearsay knowledge is stipulated with respect to the core information regarding the firearm. Again, defence counsel was able to make his submissions as to the adequacy of the ITO based on various alternative scenarios. These scenarios varied from one in which the CI provided information about direct observations he or she made of Mr. Barnes in possession of a firearm in the residence at a particular time, to a hearsay statement or bald assertion by the CI about the presence of a firearm at the address. Unlike the information provided in the latter scenario, the information in the first scenario, especially if given by a CI who has been reliable in the past, could be considered compelling.

[80] In Crevier, at para. 78, Rouleau J.A. noted that the precise contours of a challenge to the adequacy of the ITO, based on a judicial summary and other material, will vary in each case. At para. 79, he provides an example where a confidential informant tells police that he or she participated in hand-to-hand transactions with an accused on certain dates and, although the specific dates are redacted, the month in which it is said to have occurred is contained in the summary. There, a sub-facial challenge could take the form of the accused’s leading evidence showing that he or she was in custody on other charges during a certain time frame and the police knew or ought to have known this was the case; the trial judge would be able to determine whether that time frame overlaps with the redacted dates.

[81] The above example bears some similarity to a particular aspect of the present case. In his submissions, defence counsel noted that Mr. Barnes was arrested in London, Ontario, at the end of January 2013. On July 12, 2013, he was about to be released but was “gated,” arrested on the conspiracy and robbery charges, and transported to Toronto, where he remained in custody until July 19, 2013, when he was released on bail. Given this information, I am able to determine whether the time frame from late January 2013 to July 19, 2013 overlaps with any redacted dates in the ITO regarding information received from the CI.

[82] As stated in Crevier at paras. 83 and 84, a judicial summary will never be a complete substitute for full disclosure, given the need to protect informer privilege. However, the judicial summary should provide the accused with sufficient information to evaluate whether the preconditions for issuing the warrant were met. Since confidential informers are involved, this would naturally include information that speaks to the three Debot factors: whether the information was compelling and corroborated, and whether the informer was credible.

[83] What is contained in a summary will vary from case to case. At para. 84, Rouleau J.A. lists a number of items as illustrative of what a judicial summary may contain. He does not suggest that failure to include one or more of these points would necessarily make the summary inadequate. The list, which is neither prescriptive nor exhaustive, is as follows:

• The source of the informer’s information (first-hand, hearsay, and if hearsay, the source of that hearsay)

In the present case, the judicial summary indicates that the ITO sets out “some first-hand information” from the CI. In addition, Exhibit 4(a) states that it is plain or clarified in the ITO as to what information is first-hand and what is hearsay. In particular, the difference between first-hand and hearsay knowledge is stipulated with respect to the core information given by the CI regarding the firearm

• The informer’s relationship with/to the accused and how they first came into contact

In this case, the CI’s relationship with Mr. Barnes has been addressed in the judicial summary by outlining the categories of information that the CI provided about Mr. Barnes. The CI gave personal information about Mr. Barnes, including his physical description, lifestyle activities, and criminal activities. This effectively summarizes the nature of the CI’s relationship with/to Mr. Barnes, without specifically naming that relationship which would, in almost every case, lead to the source being identified.

• The length of time the informer has known the accused and the frequency of contact between them

In terms of the length of time that the CI knew Mr. Barnes and the frequency of contact between them, Item 14 in Exhibit 4(a) discloses that the ITO provides a time period during which the CI had the opportunity to gather the information purporting that a firearm might be found in the Downsview address.

• Whether the informer has previously provided information to police

Mr. Barnes is aware through the judicial summary and other disclosure that the CI is registered. The period of time from the registration date to the date on which the ITO was sworn is the same period of time over which the handler had known and acted as the CI’s handler. A range of this time frame – from six months to five years – was provided to the defence.

• Whether previous information provided (if any) has led to arrests, seizures, or convictions

Mr. Barnes is aware through the judicial summary that the CI has provided reliable information to the handler in the past, and that the unedited ITO includes details of other investigation(s). All the tip(s) given by the CI that the police acted on are in the ITO.

• Whether past information provided by the informer has ever been proven unreliable or false

To Det. Cst. Lennon’s knowledge, the CI had not provided unreliable information in the past (See Items 19(a), (b) and (c) in Exhibit 4(a)).

• Whether the informer has a criminal record and, if yes, whether the unredacted ITO included details of the convictions or charges or whether a copy of the criminal record was appended

• Whether the informer has convictions for offences of dishonesty or against the administration of justice

The judicial summary in this case indicates that Appendix D discloses whether or not the CI has a criminal record or outstanding charges, including any charges or convictions for crimes of dishonesty

• The informer’s motivation for speaking to police, including whether consideration was sought or arranged

The judicial summary indicates that Appendix D discloses the CI’s motivation for providing the information. The judicial summary, however, does not identify what that motivation is. As noted earlier, defence counsel, in his submissions regarding the sufficiency of the ITO, addressed the issues pertaining to the CI’s criminal record, if any, and the CI’s motivation, on the basis of alternative/ hypothetical situations.

• Whether the informer was instructed on the penalties for giving false information

Appendix D states that the CI is aware that it is an offence to provide false information to the police. This statement was not redacted from the ITO.

• Whether descriptions provided by the informer match the accused or the target location

The CI’s description of Mr. Barnes was not redacted from the ITO. The CI identified Mr. Barnes from a mug shot.

• The degree of detail of the information that the informer provided to police

• The recency or timing of the information that the informer provided to police

In terms of the degree of detail of the information provided by the CI, the judicial summary indicates that Appendix D sets out “some detailed and specific source information.” The judicial summary also indicates that the information in Appendix D with respect to the core allegation is recent, stating that it “sets out some recent source information in relation to Mr. Barnes and a firearm.”

There are also references to the detail and recency of the CI’s information in the redacted ITO. For example, para. 16 states that the source provided “recent, detailed and corroborated information pertaining to Dinish Barnes and the address associated to him.” Paragraph 20 states that the source had “recent, detailed [redacted] knowledge in regards to Dinish Barnes.” Paragraph 28 states that the “information provided by the informant is very detailed and compellable.” The judicial summary indicates that para. 28 “sets out information which also appears in paragraph 25 and has been redacted …, including the fact that the source information is recent.”

• Any discrepancies between the information of one informer and another

There was only one CI involved in this case.

• Any aspects of the informer’s information that are contradicted by police investigation or otherwise detract from its credibility

• Any errors or inaccuracies that exist in the ITO, and their nature (e.g. typographical errors)

Paragraph 27 of the ITO sets out the surveillance conducted on October 4/5, 2013, on 126 Downsview Avenue, which was the only address that was investigated in this matter. The Crown has acknowledged that the reference to the arrival of two males in the black Chrysler at 12:05 a.m. is in error, as one of those individuals was Ms. Lee. (Mr. Barnes was identified as the other individual.) The Crown has also acknowledged that Mr. Barnes was not on bail at the time of this investigation as he had been discharged at the preliminary hearing on the conspiracy and robbery charges in September 2013. He was therefore not obliged to reside at 14 Sir Jacob Crescent in Brampton. The Crown agrees that these inaccurate portions of the ITO must be excised.

[84] In summary, having taken into account the totality of the material provided to the defence in this case, and using the above-listed items as a guide in assessing the adequacy of the judicial summary, I am satisfied that Mr. Barnes is sufficiently aware of the nature of the excised material to enable him to challenge the warrant’s validity in argument or by evidence as envisaged in Garofoli. In other words, I am satisfied that Mr. Barnes is in a position to exercise his right to make full answer and defence. In coming to this conclusion, I bear in mind that this hearing is an admissibility hearing, not a trial of the merits. Mr. Barnes’ right to full answer and defence must be viewed in this context and balanced against the need to maintain informer privilege. In light of this conclusion, I will consider the unedited ITO in determining whether the warrant could have issued.

Issue #2: The Challenge to the Warrant: Was there a basis upon which the issuing justice could have found that reasonable and probable grounds existed to issue the warrant?

[85] The standard of review on a s. 8 Charter application, where a search warrant has been issued at first instance, is deferential. As stated by Sopinka J. in Garofoli, at para. 56:

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, non-disclosure, 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. [Emphasis added.]

[86] In Debot, the Supreme Court provided a framework for analyzing whether reasonable and probable grounds exist when those grounds are based on a confidential informant’s tip. The factors to be considered include whether the tip is compelling, credible, and corroborated by police investigation. At p. 215, Wilson J. stated:

In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. 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 the 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.

[87] As observed by Code J. in Greaves-Bissesarsingh, at para. 35, it appears from Wilson J.’s reasons in Debot and subsequent case law that the term “compelling” refers to considerations that relate to the reliability of the informer’s tip such as the degree of detail provided and the informer’s means of knowledge, that is, whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip. The term “credibility” appears to capture considerations such as the informer’s motivation, criminal antecedents, and any past history of providing reliable information to the police. The term “corroboration” refers to any supporting information uncovered by the police investigation. In R. v. Caissey (2007), 2007 ABCA 380, 227 C.C.C. (3d) 322 at paras. 12-25 (Alta. C.A.), aff’d at (2008), 2008 SCC 65, 237 C.C.C. (3d) 289 (S.C.C.), the Court made it clear that it is not necessary for the police to corroborate the core criminality alleged by the informant. See also R. v. Rocha (2012), 2012 ONCA 707, 292 C.C.C. (3d) 325, at paras. 22-25.

Was the information compelling?

[88] The information provided by the CI in this case contained details and had a number of different facets to it, as is apparent from the judicial summary of para. 25 and Appendix D of the ITO. The information certainly constituted much more than a general statement that there was a man with a gun at a certain place. The information included details regarding Mr. Barnes’ physical description, lifestyle and criminal activities, an address and a firearm. The CI identified Mr. Barnes from his mug shot as the person known to them.

[89] Some of the information was first-hand. It would have been clear to the Justice of the Peace from reading the ITO as to what information was first hand and what was not. Hearsay, of course, is less compelling. The ITO clearly indicates whether the core of the information – that is, the information relating to Mr. Barnes and possession of a firearm – is first or second-hand. (See Exhibit 6, question 33).

[90] The information was, generally speaking, recent. The judicial summary of Appendix D also indicates that the information relating to Mr. Barnes and a firearm was recent. The answer to question 14 in Exhibit 4(a) affirms that the ITO includes a specific time-frame over which the CI had the opportunity to gather the information purporting that a firearm might be found at 126 Downsview Avenue.

[91] The unredacted ITO contains categories of information that are detailed and specific. The information provided by the CI was clearly compelling.

Was the CI credible?

[92] The information provided to Det. Cst. Lennon did not come from an anonymous tipster but from a registered CI. The handler had known the CI and had acted as his or her handler for a period of time – the range of time disclosed to the defence was six months to five years – and thus had time to develop a rapport or relationship with the CI. The CI had provided reliable information to this handler in the past. Details of prior investigation(s) are included in the ITO. To Det. Cst. Lennon’s knowledge, the CI had not provided unreliable information in the past. These matters speak to the credibility of the CI.

[93] The issuing justice was made aware through Appendix D as to whether or not the CI has a criminal record or outstanding charges, including any charges or convictions for crimes of dishonesty. The CI’s motivation for providing the information is also included in Appendix D.

[94] Having regard to the particulars contained in the unredacted ITO, there is a strong basis on which the Justice of the Peace could find that the CI’s tip was credible.

Was the information corroborated?

[95] Defence counsel submits that the police surveillance in this case was insufficient, and queried why at least one more day of surveillance was not carried out. However, as noted by Rouleau J.A. in Crevier, at para. 109, the unlawful possession of a firearm in a person’s home is difficult to corroborate through surveillance. Unlike an allegation of drug-trafficking, where the police may be able to observe the suspect engaging in behaviour consistent with that activity, there may be very little that the police can do to corroborate the possession of a firearm in a residence. Rouleau J.A. also recognized that there is some urgency from a public safety perspective when police are investigating firearms-related tips:

Additionally, it could be irresponsible for police to wait until independent investigation alone provides the sufficient grounds for a search when they already have the requisite reasonable and probable grounds based on compelling and reliable information from a confidential informer. Delaying a search in such circumstances would allow an illegal handgun to remain at large and pose a threat to the community.

[96] In Crevier, the police maintained surveillance for only a few hours on the apartment where the appellant was allegedly in possession of a firearm. During the course of that surveillance, the police did not observe the appellant at the apartment or see any activity there that suggested criminality. In addition, none of the database checks connected the appellant to the apartment. Despite this lack of corroboration, the warrant was upheld.

[97] In the present case, the police surveillance confirmed Mr. Barnes’ connection to the address referred to in the CI’s information, that is, 126 Downsview Avenue. Mr. Barnes arrived there and entered through a side door shortly after the police set up surveillance on the residence. Crown counsel pointed out that the police database checks did not link Mr. Barnes to 126 Downsview. The address on his expired 2006 driver’s licence was 9 Lilly Crescent in Brampton. More recently, as of July 19, 2013, he was required as a term of his bail to reside at 14 Sir Jacob Crescent in Brampton until he was discharged on the conspiracy and robbery charges at the preliminary hearing. In these circumstances, the fact that Mr. Barnes showed up at the address provided by the CI constituted fairly strong corroboration. It was certainly stronger than if the database checks had linked Mr. Barnes to 126 Downsview for a long period of time. For example, if Mr. Barnes had been living there for a number of years, one would expect that many members of the community would be aware of that fact, and his attendance at the residence would not be particularly remarkable or significant.

[98] The database checks confirmed the CI’s physical description of Mr. Barnes.

[99] The database checks also disclosed Mr. Barnes’ criminal history, including convictions for crimes of violence: the conviction on October 5, 2005, for uttering threats, and the convictions for robbery and unlawful confinement on June 22, 2006. Although the ITO indicates that Mr. Barnes was the subject of two weapons prohibition orders, there were actually three such orders in place. Two arose from the above-named convictions, and the third from the drug convictions on December 23, 2005. Although the drug convictions are somewhat dated, they are noteworthy in light of the fact that drugs and guns often go hand in hand. Overall, Mr. Barnes’ criminal antecedents are somewhat corroborative of the CI’s information.

[100] Defence counsel submitted that paras. 26(b)(i) and the first sentence of para. 26(c) should be excised. (As previously indicated, the balance of para. 26(c) must be excised as the information it contains regarding Mr. Barnes being on bail for conspiracy and robbery charges is in error.) Para. 26(b)(i) states that the Peel Regional Police have 32 documented contacts where Mr. Barnes “has been accused, victim, witness, suspect or other”, and that three occurrences were weapons-related and five occurrences were drug-related. Paragraph 26(c) states that the Toronto Police Service has eight documented contacts where Mr. Barnes has been “accused, victim, witness, suspect or other.” These paragraphs are of negligible corroborative value. However, their limitations in that regard are obvious on their face and would have been obvious to the issuing justice, who presumably took that into account in determining whether there were reasonable and probable grounds to issue the warrant. In the circumstances, I decline to excise either para. 26(b)(i) or the first sentence of para. 26(c).

[101] A review of the unredacted ITO discloses further corroboration of the CI’s information in a number of areas.

[102] As stated in Debot, each of the factors to be considered in determining whether there were reasonable and probable grounds for the issuance of the warrant – that is, whether the information from the CI was compelling, credible and corroborated – do not form a separate test. Rather, it is the “totality of the circumstances” that must meet the standard of reasonableness. In my view, that standard has clearly been met in this case. Based on the material before the issuing justice, as edited by me, I am satisfied that there was a proper basis on which he could have issued a warrant to search the apartment at 126 Downsview Avenue. There was no violation of Mr. Barnes’ s. 8 Charter rights.

Section 24(2) Charter Analysis

[103] In the event that I have erred in finding that there was no s. 8 Charter violation, I will briefly set out my views on the admissibility of the firearm under s. 24(2).

[104] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court identified three lines of inquiry relevant to the determination of whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute. They are:

(1) the seriousness of the Charter-infringing state conduct;

(2) the impact of the breach on the Charter-protected interests of the accused; and

(3) society’s interest in the adjudication of the case on its merits.

[105] These lines of inquiry are to be viewed in a long-term, forward-looking, and societal perspective: Grant, at para. 71.

Inquiry 1: Seriousness of the Charter-infringing State conduct

[106] At this stage, the court must consider the nature of the police conduct that infringed the Charter and led to the discovery of the firearm. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law and risk bringing the administration of justice into disrepute: Grant, at para. 74; and R. v. Blake, 2010 ONCA 1, [2010] O.J. No. 48.

[107] If there was a Charter breach in this case, it was not deliberate or the result of wilful or reckless disregard by the police of Mr. Barnes Charter rights. Det. Cst. Lennon attempted to corroborate the CI’s information and conducted some independent investigation. His efforts in this regard must be viewed in the context of the inherently urgent nature of an investigation involving an unauthorized firearm. There was no deliberate misleading of the issuing justice. The error with respect to Mr. Barnes being on bail for the conspiracy and robbery charges stemmed from Det. Cst. Lennon’s reliance on CPIC information that had not been updated. As noted earlier, counsel agree that Det. Cst. Lennon’s experience, or lack thereof, is a neutral factor in the sense that neither good faith nor bad faith should be inferred from any error or omission he may have made.

[108] In my view, the Charter-infringing behaviour in this case is at the lower end of the spectrum.

Inquiry 2: Impact on the accused’s Charter-protected interests

[109] The second line of inquiry involves a consideration of the seriousness of the breaches from the perspective of the accused.

[110] The Charter violation in this case was serious from Mr. Barnes perspective as it involved a search of his residence in the absence of reasonable and probable grounds. It is well-established that a dwelling house attracts a high expectation of privacy and that an illegal search of a person’s home constitutes a significant breach of that person’s right to be free from unreasonable search and seizure. An unreasonable search that intrudes on an area in which the individual enjoys a high expectation of privacy is more serious than one that does not: R. v. Dhillon (2010), 2010 ONCA 582, 260 C.C.C. (3d) 53, [2010] O.J. No. 3749 (C.A.), at paras. 56-58. This factor favours exclusion.

Inquiry 3: Society’s interest in an adjudication on the merits

[111] In this third line of inquiry, the court must consider factors such as the reliability of the evidence and its importance to the Crown’s case.

[112] The evidence of the firearm is highly reliable and essential to the Crown’s case; without it, there is no case. These considerations favour admission because to do so would promote the public interest in having the case adjudicated on its merits.

Balancing the factors under the three lines of inquiry

[113] According to Grant, the balancing of the factors under the three lines of inquiry is qualitative in nature and not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favours exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[114] Taking into account and weighing all of the factors, I find that the admission of the firearm would not, on balance, bring the administration of justice into disrepute. The impact of the breach on Mr. Barnes’ Charter rights was serious and weighs in favour of exclusion. However, society’s interest in having this case adjudicated on its merits strongly favours the admission of the evidence, which is highly reliable and essential to the Crown’s case. This, plus the fact that the Charter-infringing police conduct was not wilful and falls at the lower end of the spectrum in terms of seriousness tips the balance in favour of admission. The repute of the justice system would not suffer from allowing the evidence to be admitted at Mr. Barnes’ trial.

Conclusion

[115] As the accused has not established on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute, the application is dismissed. The firearm is admissible.

GARTON J.

Released: October 20, 2015

COURT FILE NO.: 26010/14

DATE: 2015/10/20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

DINISH BARNES

RULING ON SS. 8 and 24(1) CHARTER APPLICATION

GARTON J.

Released: October 20, 2015