CITATION: R. v. Travassos, 2015 ONSC 965
COURT FILE NO.: CR-13-50000101-0000
DATE: 20150212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
OCTAVIO TRAVASSOS
Defendant/Respondent
Erin Pancer, for the Crown/Applicant
Maurizio Stellato, for the Defendant/Respondent
HEARD: February 9-11, 2015
McCombs J.
[1] Mr. Travassos faces an eight-count indictment accusing him of various weapons and narcotics-related offences. As a result of information furnished by a confidential informant (“CI”), the police swore identical Informations to Obtain (“ITO”) on the strength of which they were granted warrants to search Mr. Travassos’ residence as well as his motor vehicle. Those searches resulted in the seizure of a large quantity of drugs, a loaded handgun, and roughly $20,000 in cash.
Redaction of the ITO to Protect the Identity of the CI
[2] In order to protect the confidentiality of the identity of the CI, the ITO was heavily redacted by the Crown before providing it to the defence.
[3] As part of a series of Charter applications relating to the ITO, the defence seeks greater disclosure of the redacted portions of the ITO.
Dismissal of the Application to Cross-Examine the Affiant
[4] In furtherance of the defence application for greater disclosure, the defence sought to cross-examine the affiant who swore the ITO. In his able submissions, Mr. Stellato stressed that he understood and respected the need for protection of the identity of the CI, while at the same time striking a fair balance between that need and the entitlement of his client to a fair trial in accordance with his Charter rights. He submitted that a fair balance of the two competing principles would be struck if he were to be permitted to cross-examine in only four discreet areas. In oral reasons, I dismissed Mr. Stellato’s application to cross-examine the affiant. For clarity and context, I will briefly refer to this issue now.
[5] The defence sought to ask questions of the affiant with respect to four discreet areas that, in Mr. Stellato’s submission, were carefully circumscribed in order to respect CI privilege concerns. I ruled that the first three proposed areas of questioning carried the risk of identifying the CI and that Mr. Travassos’ s. 7 rights were not materially undermined by denial of leave to cross-examine the affiant. I also held that the fourth proposed area of questioning did not engage the CI privilege, but instead pertained to the ITO’s disclosure of the accused’s prior interactions with the police and whether this information might have misled the justice of the peace. With respect to this issue, I held that the unredacted portions of the ITO showed that the affiant had been sufficiently full, frank and fair in his disclosure of the accused’s antecedents, and that the proposed questioning would not provide any further relevant information.
Crown Concession that Redacted ITO Could Not Support Issuance of Search Warrants
[6] The Crown fairly and rightly conceded that the redacted ITO could not, by itself, support the issuance of the search warrants. As a result, the Crown has applied to proceed to Step 6 – the final step – of the process outlined by the Supreme Court of Canada in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, 60 C.C.C. (3d) 161.
[7] In explaining my conclusion, I will start with the language of Step 6, from Garofoli at para. 79:
If, however, the editing renders the authorization insupportable, then 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. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.
[8] The quoted passage instructs that the Crown’s request may not be granted unless the court is satisfied that the accused and his counsel, through a combination of the redacted ITO and judicial summaries of the excised portions, “is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.”
[9] Mr. Stellato, in his able argument, submitted that the redacted ITO and the judicial summaries, when taken together, do not provide sufficient information to ascertain whether the criteria identified by the Supreme Court in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 at para. 53, have been met. Briefly stated, the Debot criteria require that the information in an ITO be compelling, credible, and corroborated. Mr. Stellato asserts that his client’s right to make full answer and defence requires that he be provided sufficient information to challenge the contents of the ITO by argument or by evidence. He takes the position that the redactions and judicial summaries do not permit him to do so in this case.
[10] Ms. Pancer, on behalf of the Crown, submits that the combination of the redacted ITO and the judicial summaries does meet the minimum threshold set out in Step 6 of Garofoli. The Crown’s position is that the judicial summaries indicate the nature of the redactions with sufficient precision to permit the defence to challenge the sufficiency of the ITO. In the submission of the Crown, the judicial summary shows that the redacted material contains information concerning all relevant factors: whether the CI has a criminal record; the nature of that criminal record, if any; the CI’s motivation for disclosing information to the police; the fact that the CI has never been charged or convicted of obstructing police, public mischief, or perjury. The Crown also points to the fact that the judicial summary shows that the redacted portions contain information confirming adherence to the Debot criteria.
[11] The Crown relied on two trial decisions: R. v. Crevier, 2013 ONSC 1880, and R. v. Thompson, 2014 ONSC 250. In Thompson, at paras 69-77, Patillo J. provided a helpful discussion of the proper analytical framework to be employed when addressing Step 6 of Garofoli. I adopt his analysis in addressing the issues in the case before me.
[12] I am sympathetic to the defence position. However, I am persuaded that the combination of the redacted ITO and the judicial summaries does provide the defence with sufficient awareness of the nature of the excised material to challenge the ITO by evidence or argument. The Crown’s application to proceed to Step 6 of Garofoli is therefore granted.
McCombs J.
Released: February 12, 2015
CITATION: R. v. Travassos, 2015 ONSC 965
COURT FILE NO.: CR-13-50000101-0000
DATE: 20150212
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
OCTAVIO TRAVASSOS
REASONS FOR JUDGMENT
McCombs J.
Released: February 12, 2015