R. v. Stewart, 2017 ONSC 7193
CITATION: R. v. Stewart, 2017 ONSC 7193
COURT FILE NO. 13899/15
DATE: 20171101
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Thomas Stewart
Applicant
COUNSEL:
George Hendry, for the Crown
Mark Jacula, for the accused
Heard: August 10, September 12, October 11, 12, 14, 17, 18, 19, 20, and 21, 2016
Reasons for Decision
Bale J.:
Introduction
[1] Following the execution of search warrants issued under the Controlled Drugs and Substances Act, and the Criminal Code, the accused was charged with a number of drug and weapons offences. The warrants authorized searches of two units, in an apartment building, at the Town of Whitby.
[2] The accused challenged the validity of the search warrants, and applied under sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms, for an order that the evidence obtained upon execution of the warrants be excluded from the evidence to be given at trial.
[3] For each of the two apartment units, there were two informations to obtain, one under the Code, and one under the CDSA. As each of the four informations to obtain were the same, I will refer to them collectively as “the ITO”. The ITO relied upon information provided by two confidential informants, and as a result, they were heavily redacted.
[4] The Crown conceded that the vetted ITO disclosed to the accused would not support issuance of the warrants, but argued that the unvetted ITO submitted to the issuing justice was sufficient. In the result, the application proceeded under the sixth step of the procedure provided for in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421.
Procedure followed
[5] At the outset of the hearing, I heard submissions from Crown and defence counsel with respect to the procedure to be followed.
[6] Crown counsel then provided me with a copies of both the vetted and unvetted ITOs, together with a draft judicial summary, and notes explaining the reason for each redaction.
[7] Following my review of the ITOs, I held an ex parte hearing with Crown counsel, at the conclusion of which, at my request, Crown counsel agreed to make a number of changes to the judicial summary. The agreed-upon changes were intended to increase the usefulness of the summary to the defence. I was satisfied from my review of the ITOs, and the submissions of counsel, that all of the redactions had been properly made to protect informer privilege.
[8] Defence counsel then moved for an order allowing him to cross-examine the affiant of the ITO, on certain defined issues. For oral reasons given at the time, I granted leave to cross-examine on some, but not all of those issues.
[9] Following the cross-examinations, I heard argument with respect to the adequacy of the judicial summary. I also heard argument with respect to material in the ITO that defence counsel argued should be excised, and as a result, a number of excisions were made.
[10] At the conclusion of the hearing, I dismissed the defence motion, with written reasons to follow. The trial then proceeded, and on December 22, 2016, I found the accused guilty of possession of a prohibited or restricted firearm with ammunition, possession of marijuana for the purpose of trafficking, and possession of cocaine for the purpose of trafficking.
[11] Following his conviction, and pending an application to revoke his bail, the accused absconded, and has not been seen (at least by me) since. On September 21, 2017, after a number of adjournments of his sentence hearing, the accused was sentenced in absentia.
[12] The following are my reasons for dismissing the defence application for an order that the evidence obtained upon execution of the warrants be excluded from the evidence to be given at trial.
Standing
[13] Because the defence took the position that the accused had nothing to do with one of the two apartments searched, Crown counsel argued that the accused did not have standing to challenge the warrant relating to that apartment. However, it could just as easily be argued that the Crown was not entitled to challenge the accused’s standing, because the Crown counsel took the position that the accused was, in fact, in possession of the apartment. I ruled that since the accused’s possession of the apartment was put in issue by the Crown, the accused did have standing to challenge the warrant.
Scope of review
[14] On a review of the issuance of a search warrant, the reviewing justice does not substitute his or her opinion for that of the issuing justice. Rather, the question is whether there was some evidence that might reasonably be believed, upon the basis of which the warrant could have issued: R. v. Araujo, 2000 SCC 65, at para. 51.
Excision of information contained in redacted ITO
[15] Defence counsel argued for a number of excisions of the information contained in the redacted ITO.
[16] At the end of a mostly redacted paragraph in the overview to Appendix C, the deponent made the following statement: “Surveillance was conducted on numerous occasions, and much of the Confidential Source’s information was corroborated.” Defence counsel argued that this statement should be excised, because there was only evidence of two occasions of surveillance, and very little evidence of actual surveillance. Crown counsel did not oppose the requested excision, but responded by saying that the statement was conclusory only, and that the issuing justice would have come to his own conclusions, based upon the contents of the ITO. While I agreed with Crown counsel’s analysis, both the frequency of the surveillance, and the amount of corroboration, were overstated, and the statement was therefore excised.
[17] In paragraph 10 of the ITO, the deponent included information relating to an incident involving Suzette Campbell-Morrison that occurred in 2013. Subparagraphs 10(a) and 10(b), contained information relating to the possession and use of marijuana by Ms Campbell-Morrison. Defence counsel argued that this information was prejudicial to the accused, suggested a propensity to use drugs, and would have been of no assistance to the issuing justice, since the accused was not involved in the incident. Crown counsel did not oppose the requested excision, which therefore was made.
[18] Paragraph 11 of the ITO contained information that the accused, who has no criminal record, was arrested in 2008 for possession of a controlled substance for the purpose of trafficking, and that in 2010, he was wanted by Durham police. Defence counsel argued that this information should be excised, because it had no relevance, had been included to show a general propensity for criminal wrongdoing, and was misleading, given that the accused did not have a criminal record. Crown counsel argued that the issuing justice would not have been misled, because it was disclosed in the ITO that the accused had no record, and he submitted that the evidence of contact with the police should remain, because it included details that would help establish a link, between the accused and the apartment units in question. I agreed, in part, with both counsel, and made the following excisions from paragraph 11:
• subparagraph (a): the words “the arrest of”;
• subparagraph (b);
• subparagraph (c): the word “arrested”;
• subparagraph (d): the words “upon arrest”;
• subparagraph (f): the final sentence;
• subparagraph (h)(iii); and
• subparagraph (h)(iv).
[19] Defence counsel argued that paragraphs 12, 15 and 16 should be excised because they were records of searches made of the Toronto Police Service Versadex system relating to persons not otherwise referred to in the redacted ITO, and that resulted in null returns. However, these searches were part of the police investigation, and were in no way prejudicial to the accused.
[20] Defence counsel argued that paragraph 14 should be excised because it was a record of a search made of the Toronto Police Service Versadex system relating to Suzette Campbell-Morrison, and not of the accused, and was therefore not relevant. However, the results of the search were findings that Ms Campbell-Morrison was not then facing any charges, and that she did not have a firearms license or any registered firearms. The first of these two results is not prejudicial to the accused, and the second is relevant to the question of whether a weapons offence was being committed at the premises in question.
[21] Paragraph 21 of the ITO contained a statement that “Due to the behaviours of the targets in this investigation, surveillance on these addresses is quite difficult”, which statement is followed by a redaction, and then the statement: “It is for this reason that it was decided further, more detailed surveillance would be a hindrance to this investigation rather than a benefit.” Defence counsel argues that this paragraph should be excised, because the information could only have come from the confidential sources, and is unverified, uncorroborated, and therefore unreliable. However, as will be dealt with in further detail below, I was of the view that the confidential sources were credible, and that the information given by them was reliable.
[22] The judicial summary indicated that some of the redacted information could not be summarized. The redacted information that could not be summarized was not relied upon by the Crown, and was excised.
Sufficiency of judicial summary
[23] Where the Crown relies upon redacted information to support the validity of a search warrant, the court must determine whether the judicial summary allowed the accused to be sufficiently aware of the nature of the redacted information to allow him to effectively challenge it with evidence, or by argument: Garafoli, at para. 79.
[24] Defence counsel took objection to various phrases repeated in the judicial summary that he says do not provide him with sufficient information to be able to challenge the redacted information. He argues that the redacted information should either be disclosed, or I should not rely upon it in reviewing the issuance of the search warrants. However, the requirement that the accused be sufficiently aware of the nature of the redacted material requires only that the accused be aware of the nature of the redacted details, and not the details themselves: R. v. Crevier, 2015 ONCA 619, at para. 72. In the present case, the nature of each redaction was disclosed in the summary.
[25] In the result, I was satisfied that the judicial summary allowed the accused to be sufficiently aware of the nature of the excised material to challenge it in argument, and by evidence.
Whether warrant could have issued
[26] The core of the ITO was the information provided by the confidential informants. Virtually all of this information was redacted in the copy of the ITO produced to the accused. As indicated at the outset of these reasons, the Crown had conceded that the warrants could not have issued solely based on the redacted ITO.
[27] Where evidence of confidential informers is relied upon in support of a search warrant, the evidence must be not only compelling, it must come from a credible source, and be corroborated by police investigation. These three factors are assessed on a totality of circumstances, keeping in mind that weaknesses in one factor may, to some extent, be compensated for by strengths in the other two: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at para. 53; Crevier, at para. 67.
[28] The evidence of the confidential informants was compelling, by virtue of the level of detail provided.
[29] With respect to the credibility of one of the two confidential informants, the following information was disclosed:
• whether he or she had a criminal record;
• whether he or she was currently facing any charges;
• whether he or she had previously provided information to Toronto Police Services;
• his or her motivation for providing information to the police; and
• how he or she obtained the information given to the police.
[30] With respect to the credibility of the other confidential informant, the following information was disclosed:
• whether he or she had previously provided information to Toronto Police Services;
• his or her motivation for providing information to the police; and
• how he or she obtained the information given to the police.
[31] Based upon the information about the informants referred to in the preceding paragraphs, and the level of detail provided, I was satisfied that their evidence was credible and reliable.
[32] The weak factor in the present case was corroboration. However, possession of unlawful items in a person’s home is often difficult to corroborate through surveillance. In addition, where police have reasonable and probable grounds to believe that a suspect is in unlawful possession of a firearm, based upon compelling and reliable information from a confidential informant, it may be irresponsible for them to wait for corroboration. Delaying a search in such circumstances may pose a threat to public safety: Crevier, at para. 109. In all of the circumstances, I was satisfied that the weakness in corroboration was compensated for by the strength of the other two factors.
“Judge-shopping”
[33] The search warrants in question were issued by Brownstone J. of the Ontario Court of Justice. However, prior to the application to him, a justice of the peace had refused to issue telewarrants to search, based upon an almost identical ITO. The only difference between them was the disclosure in the latter ITO of the refusal of the justice of the peace to issue the telewarrants.
[34] Defence counsel argued that in re-submitting the search warrant applications relying upon ITOs virtually identical to those considered by the justice of the peace, the police engaged in impermissible “judge-shopping”. I disagreed.
[35] There is nothing wrong with the police re-submitting a search warrant application to a judge, based upon substantially the same ITO as was submitted to a justice of the peace who has refused to issue the requested warrant, provided that the prior application is disclosed to the judge, together with a summary of the reasons for the refusal: R. v. Campbell, [2014] O.J. No. 6541 (S.C.J.).
[36] In refusing to issue the warrants, the justice of the peace made two endorsements containing reasons for the refusal. One of the endorsements was on a pre-printed section of the “telewarrant fax cover sheet” under the heading “Reply from a Justice of the Peace”, and one was on the first page of the ITO. The first of these two endorsements was disclosed in the ITO submitted to Brownstone J., but the second was not. On this basis, defence counsel argues that the reasons for refusal were not fully disclosed, and that as a result, the conduct of the police officer was improper.
[37] However, there is nothing in the omitted endorsement that was not contained in the disclosed endorsement – the former appears to be a brief summary of the reasons contained in the latter. I allowed defence counsel to cross-examine the officer on his reason for not including the former – his evidence was that he did not know why the former was not included, and I can therefore only assume that the failure to include it was a result of inadvertence. In the result, I was satisfied that there was no material failure to disclose.
[38] It should also be mentioned that other than on the question of why the second endorsement was not included in the information submitted to Brownstone J., I refused to allow cross-examination on the judge-shopping issue. Defence counsel had sought to cross-examine the officer on why the particular judge was chosen to consider the application. In my view, it would be wrong to allow cross-examination on this issue solely on the basis of the fact that two successive applications were made, in the absence of any case-specific evidence that there was anything untoward about the second application. To do so would allow cross-examination of the deponent of the ITO in every such case, which would undermine one of the reasons why leave to cross-examine is required – a concern for judicial economy. In addition, I considered the fact that at the preliminary inquiry, defence counsel cross-examined the officer on the past frequency of his use of Brownstone J. for search warrant applications.
Disposition
[39] In the end result, I was satisfied that the judicial summary was sufficient to allow the accused to challenge the redacted material, and that the challenged warrants could have issued in reliance upon the unredacted ITO considered by the issuing judge (minus the material excised during the hearing), and the accused’s application for an order excluding the evidence was therefore dismissed.
“Bale J.”
Released: November 1, 2017
CITATION: R. v. Stewart, 2017 ONSC 7193
COURT FILE NO. 13899/15
DATE: 20171101
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
THOMAS STEWART
REASONS FOR DECISION
Bale J.
Released: November 1, 2017