CITATION: R. v. Kerr, 2017 ONSC 7252

COURT FILE NO.: CR-16-30000096-0000

DATE: 2017-12-08

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R. v. Brian Kerr, Applicant/Accused

BEFORE: S.F. Dunphy J.

COUNSEL: Craig Bottomley and Sharif Foda, for the Applicant/Accused Rob Fried, for the Respondent/Crown

HEARD at Toronto: October 30 and 31, November 1, 2 and 3, 2017

DECISION ON VOIR DIRE (Garofoli and s.7)

[1] This is a Garofoli application about a warrant to intercept communications based on information from an informer. The twist is that the informer was not confidential, but came with a lengthy record and was in custody when he first approached authorities with his information. The applicant takes the position that the failure to disclose an alleged “plea deal” received by the informer on the day the ITO was sworn fundamentally undermined the review process and the warrant could not and should not have issued had the full picture been fairly painted. The evidence obtained under the authority of the warrant was a recording of a call made by the accused to an undercover police officer introduced to the accused by the informer which contains allegedly incriminating evidence.

[2] It is conceded that the ITO failed to make full plain and true disclosure of the consideration given by the Crown for the benefit of the informer (who was by then a police agent). The applicant goes further and alleges that the omission was a deliberate attempt at deception done for the purpose of subverting the warrant review process. In addition to the Garofoli application, the applicant asks that the entire proceeding be stayed by reason of the alleged deception as well as the failure of the police adequately to preserve audio or video evidence of all their interactions with the witness which failure the applicant alleges has deprived him of the ability to make full answer and defence and resulted in a breach of his s.7 Charter rights necessitating a remedy.

[3] This application is brought pursuant to s. 7, 8, s. 24(1) and 24(2) of the Canadian Charter of Rights and Freedoms. As this was a judge-alone trial, the parties consented to my hearing the trial evidence and the voir dire evidence on a blended basis. I am rendering my decision separately from my trial reasons in order to keep the strands of evidence admissible to the trial separate from those admissible on this voir dire.

[4] The accused is charged with (i) attempting to obstruct justice by attempting to dissuade a witness from coming to court contrary to s. 139(2) of the Criminal Code; (ii) counseling “Richard” (the witness referred to above) to commit the indictable offence of murder which offence was not committed contrary to s. 464(a) of the Criminal Code and (iii) with counseling an undercover police officer to commit the indictable offence of murder which offence was not committed contrary to s. 464(a) of the Criminal Code.

[5] For the reasons that follow, I am dismissing this application.

[6] The affiant of the ITO has admitted (and I agree) that the nature of the sentencing consideration given to the (until then) in-custody witness ought to have been disclosed. The evidence of this witness initiated and underpinned the entire police investigation. The sentencing consideration was relevant information going to his possible motive to fabricate and thus his credibility. Nevertheless, the only assistance given to this witness by police was of a routine “good word” nature and was neither discussed nor given until long after the investigation had begun and the witness had disclosed substantially all he had to disclose. The undisclosed evidence regarding motive was, on closer examination, evidence of ex post facto motive only and of limited utility in the analysis required to assess the existence of reasonable grounds. There can be no doubt that the warrant could have issued even if the ITO were amplified by the inclusion of the omitted information regarding motive of the witness.

[7] Richard was not a “jailhouse informant” or “in-custody informant” as those terms are defined in R. v. Brooks[^1] or in the Kaufman Commission[^2] even if there are some parallels that can fairly be drawn. While there were grounds to be quite cautious regarding his credibility, it cannot be said that the credibility of his information was fatally undermined either by his criminal history or the prospect of police speaking well of his assistance to the Crown. His information was sufficiently compelling, credible and corroborated to be relied upon, along with all of the other evidence, in forming reasonable grounds to believe. Further, the failure to disclose the evidence of sentencing consideration was not deliberate. It was simply the result of a want of diligence in following up with the Crown on what was essentially “late breaking” information that needed to be added to an ITO that was weeks in preparation. The affiant has candidly admitted his fault, but the fault was neither deliberate nor reasonably expected by him to be consequential. There is no basis to exclude the intercepted communication.

[8] The accused has in no way been deprived of the opportunity to make full answer and defence. There has been no police deception and there has been no failure to preserve evidence. The police are not required to surround an in-custody agent or witness with a surveillance bubble recording every syllable uttered at all times while he or she is in the presence of police for any purpose. The witness gave two detailed statements that were video recorded both of which were made available to the judge who issued the warrant and were also available to the defence for purposes of trial. Police notes recorded all significant information received during the course of their interactions with the witness. These notes were also fully available to the defence.

Background facts

[9] This case concerns two former inmates of the now-closed Toronto West Detention Centre in 2014. On February 19, 2014, Richard was admitted to Toronto West and was assigned to unit 4B, cell #12. In the same unit, the accused Mr. Brian Kerr occupied cell #14. From March 22, 2014 until April 1, 2014 both of them were assigned to the same cell (#13). They remained on unit 4B until May 1, 2014, when both were relocated to unit 1C (Mr. Kerr in cell #13, Richard in cell #14). The two were thus on the same range and, for a period of time at least, in the same cell.

[10] On April 8, 2014, Richard made statements to a correctional services officer and left a voice mail with police alleging that a fellow inmate, Mr. Kerr, was seeking to arrange the murder of Mr. Kerr’s ex-girlfriend Tina. A police investigation ensued in the course of which Richard gave two video-recorded statements and was eventually enrolled as an agent to assist in obtaining further information from Mr. Kerr implicating him in the alleged plot. An authorization to intercept communications from Mr. Kerr to Richard and either of two undercover police agents was made on July 31, 2014. That same day, Richard was released from detention on the charges he faced following a guilty plea and a joint submission on sentence. The warrant was granted on August 1, 2014. Acting as a police agent, Richard sent two postcards to Mr. Kerr in language dictated to him by police. These contained the purported phone number of a fictitious associate of Richard named “Stuart”. Richard had told Mr. Kerr that “Stuart” was someone who would help in carrying out the plot. Mr. Kerr phoned the number on September 4, 2008, and carried on a conversation with the undercover officer that was recorded. The contents of that conversation are not material to this voir dire application beyond the fact that they are probative and the defence seeks to exclude from evidence at trial both the recording of it and the viva voce evidence of the undercover officer who was a party to it.

(a) Facts relevant to s. 8 Charter application

[11] On August 1, 2014, O’Donnell J. issued an order for an authorization to intercept communications where one of the parties has consented pursuant to s. 184.2 of the Criminal Code. The order was granted based upon the application in writing of D.C. Christopher Hunt pursuant to an ITO sworn by him and upon the written consent to the proposed interception of Richard, the undercover agent and another police officer prepared to substitute for the undercover agent if needed.

[12] The following is a summary of the information contained in the detailed ITO (which contained 31 pages plus appendices and two attached video statements of Richard):

(a) On April 8, 2014, Det. Waters of 11 Division in Toronto received a voicemail message from a male identifying himself as Richard stating that his cell mate Brian Kerr wanted his girlfriend killed;

(b) On April 9, 2014, Det. Hamilton advised the team of police assigned to investigate this matter that Mr. Kerr had a long history of domestic-type arrests and incidents and was known as someone who was very violent and jealous;

(c) On April 9, 2014, Constable Martin contacted Richard by telephone and learned the following from him:

i. Richard and Mr. Kerr were cell mates at Toronto West;

ii. Mr. Kerr asked Richard to kill his girlfriend approximately one month prior;

iii. Mr. Kerr provided Richard with a handwritten note to give his girlfriend that he had not read as well as information about her name, address and phone number;

iv. Mr. Kerr initially wanted his girlfriend kidnapped. He then wanted to put heroin in her coffee and, when she passed out, to inject her with heroin to kill her;

v. Richard provided details of gold in the girlfriend’s apartment, but no exact amount for completing the job was specified; and

vi. Mr. Kerr continued to ask Richard about the job and wanted the job done before his preliminary inquiry so his girlfriend would not be able to testify.

(d) On April 10, 2014, Corrections Officer (now Sergeant) Watson forwarded to Toronto police copies of the handwritten letters and phonebook pages that Richard had turned over to security at Toronto West. These included:

i. A handwritten letter in very large, block type containing a Hamilton address and phone number for “Tina”;

ii. A handwritten note apparently intended for “Tina” professing love for her, asking her to go with “these two people here” who are “very good friends of mine” who have agreed to come for her “because we all feel it better if you were not to show for court” and the two people “will keep you safe for a couple of weeks, they’ll feed you and the animals”; and

iii. A further handwritten letter addressed to “Tina” asking her to contact a named psychotherapist who will help in reconciling Tina and the author and asking Tina to advise the therapist that she is not afraid of him, but made up the accusations against him due to depression and overmedication, adding “please do this as I have asked. No excuses”.

(e) The addresses and phone numbers for Tina and the psychotherapist contained were subsequently confirmed as being apparently accurate by independent investigation;

(f) On May 5, 2014, Richard provided D.C. Martin with a video statement (a copy of which was attached to the ITO) that included the following information:

i. Richard said that he had become friends with Mr. Kerr at “the West” after meeting him there;

ii. Richard learned from Mr. Kerr that he was a long-term offender, that he had been at the Keele Centre, that he had been brought in on a parole violation because of a woman named Tina giving false statements about Mr. Kerr threatening her life and that Mr. Kerr had been arrested by the ROPE Squad in 11 Division;

iii. At first, Mr. Kerr asked Richard if he would talk to Tina after he was released. After a time, he asked if Richard would take Tina away for a couple of days during his preliminary hearing. He gave Richard a letter for Tina;

iv. After learning from his lawyer that Tina would not recant, he was upset and told Richard that he wanted her dead and asked if Richard knew another guy who could help him;

v. Mr. Kerr wanted Tina to be killed with an overdose of heroin described as a “Hot Shot” and described Tina as an ex-heroin addict;

vi. When Mr. Kerr continued to ask about the plan, Richard told him that his buddy “Stuart” would be able to help – “Stuart” being an invented name;

vii. Mr. Kerr received a further call from a lawyer who advised him that the Crown would be seeking a dangerous offender application, which news greatly upset Mr. Kerr who renewed his inquiries about “Stuart” and the plan;

viii. Mr. Kerr wanted Richard to retrieve a gold “Gucci” bracelet of his from Tina to prove she was dead;

ix. Mr. Kerr described the plan to kill Tina in more detail to Richard: Richard would acquire either heroin or sleeping pills and put it in a coffee for Tina to drink. After she passed out, Richard and “Stuart” would give her a heavy dose of heroin and make it look like suicide;

x. Mr. Kerr told Richard that he wanted his phone, a Playstation and the Gucci bracelet for himself from Tina’s apartment. Richard would be paid with gold from Tina’s place and potentially with some money from her bank account if money expected from her father in Winnipeg came in (Mr. Kerr told Richard he had the PIN number for the account);

xi. Mr. Kerr then expected Richard to be released in 4-6 weeks.

(g) Immediately following this interview, Richard advised D.C. Murray that if he was not released from custody, he could approach Mr. Kerr about setting up a meeting with “Stuart”.

(h) On June 24, 2014, Richard spoke to D.C. Martin, one of the investigators, and told him he had been contacted by Mr. Kerr that day and the plan to kill Tina M. was still on;

(i) On July 14, 2014, Richard gave his second video statement (in this case, to D.C. Hunt) in which he stated:

i. Mr. Kerr had approached him several times with respect to the plot to kill Tina M. including the day prior where he had told Richard “You’re gonna kill that bitch and get me free”;

ii. Mr. Kerr indicated to Richard that if he were committed, it would be for a long time;

iii. Mr. Kerr intended to pay them both (Richard and Stuart) for the job. Mr. Kerr would arrange to get 56 grams of cocaine or crystal meth that Richard estimated had a street value of about $6,000 supplied to him. After selling the drugs, Richard would keep some of the money for himself and for Stuart and give some to Mr. Kerr;

iv. If the drugs deal did not go through, Mr. Kerr told Richard that Tina would have items at her residence for them to take;

v. Mr. Kerr advised Richard that Tina lived across the street from a Tim Hortons where she went to walk her dog. Richard was to tell Tina he was with Hamilton police there to talk about Mr. Kerr’s case, give her the coffee containing a drug and, when she passed out, give her a shot of heroin;

vi. Mr. Kerr spoke of sneaking into a window with a knife and described how he had stabbed a man;

(j) On July 25, 2014, Richard was advised by police that he had been officially approved to act as an agent and he was tasked to approach Mr. Kerr and assist in arranging a meeting with “Stuart”;

(k) On July 29, 2014, Richard reported to D.C. Fernandes that he spoke to Mr. Kerr earlier that day and that Mr. Kerr was irritated about the proposal for a meeting with Stuart and told Richard “just stick with the f***ing plan”.

[13] The ITO contained information about the extensive criminal record of Richard. This record extends to more than 100 convictions, mostly for theft, break and enter and similar crimes. It revealed the fact that he was in custody when he approached police and that he had just been released on July 31, 2014 (the same day the ITO was sworn by D.C. Hunt). It also contained information about Mr. Kerr’s record, the long-term supervision order he had been released under in April 2013 and reasons why Tina feared for her safety even before Richard approached police.

[14] The defence sought to cross-examine the affiant of the ITO, D.C. Christopher Hunt. The request was not opposed by the Crown. Given the admission by the Crown that the ITO did not include relevant information concerning the consideration given to Richard in connection with his release on July 31, 2014, I gave leave to cross-examine him.

[15] The Crown and the affiant (D.C. Hunt) conceded that the ITO failed to make full, plain and true disclosure in that it did not contain information in respect of (i) a request for sentencing consideration made by a principal witness (Richard) upon whose information much of the ITO was based and (ii) the Consideration Letter that was ultimately drafted by police and provided to the Crown in connection with Richard’s sentencing on July 31, 2014.

[16] The following admissions relating to the consideration received by Richard were made:

(a) Toronto Police Services sent a “Consideration Letter” to the Assistant Crown at College Park dated July 29, 2014;

(b) The Consideration Letter indicated:

i. That Richard had pleaded guilty on July 29, 2014 of his own volition and was scheduled to be sentenced on July 31, 2014;

ii. That Richard had provided witness information regarding a murder for hire plot and that Mr. Kerr would be arrested on a charge of counselling to commit murder;

iii. That Richard has not been financially reimbursed for his assistance;

iv. That Toronto Police Service understood “the Crown’s position independent of a request for consideration, is to suggest a sentence of 12 months less time served” and that “TPS supports the Crown’s position on sentence and asks that the assistance [Richard] provides on an on-going basis be weighed by the Crown when considering its position on sentence”; and

v. That any consideration given by the Crown is to be attributed to sentence on the matter currently before the Court and not in relation to any potential subsequent charge should [Richard] be charged in future.

[17] The following additional information relative to the ITO emerged at the voir dire relating to these issues:

(a) On July 10, 2014 Richard voiced frustration at the amount of time he had spent in custody for a minor charge and raised with D.C. Fernandes the question of whether police might speak to the Crown in his favour. He was advised by D.C. Fernandes that police may be in a position to inform the Crown about his assistance, but no commitment could be made. D.C. Fernandes was not surprised by this request having formed the conclusion that such a motive may have been present from the beginning of his involvement in the investigation on April 9, 2014. He informed his superiors of this request and recorded it in his notes.

(b) On July 14, 2014, Richard signed an Acknowledgement Letter in connection with his potential enrollment as a police agent. Although he was unable to read it, it was read out loud to him and he acknowledged his full understanding of it in a short video statement that included his re-statement of that understanding in his own words. The letter provided his acknowledgement that he has “spoken to a member of Toronto Police Services and made inquiries regarding the possibility of receiving some form of court consideration in relation to [the pending charges he faced] due to my participation in Project Hot Shot. I clearly understand that the only undertaking by Toronto Police Services is that Covert Operations – Source Management “Controller” may consider drafting and forwarding a court consideration request letter to the appropriate crown attorney. If this were to be the case the appropriate crown attorney may then decide whether or not to grant some form of compensation in respect of these charges”.

(c) D.C. Hunt was aware of the Acknowledgement Letter when he interviewed Richard and took his statement on July 14, 2014.

(d) D.C. Hunt attended an internal meeting on July 29, 2010 where the subject of a consideration letter to the Crown regarding Richard’s assistance with the on-going investigation of Mr. Kerr was discussed.

(e) Also on July 29, 2014, Richard pleaded guilty without condition and a sentencing hearing was fixed for July 31, 2014 to proceed with or without a letter from police to the Crown.

(f) On July 30, 2014, D.C. Beadman spoke to the responsible Assistant Crown Attorney (Ms. Krigas) about the Consideration Letter. He also spoke to D.C. Hunt about certain clarifications requested by the Crown. Later that day he arranged to have the Consideration Letter hand-delivered to the Crown’s office. I infer from this evidence that the Consideration Letter, although dated July 29, 2014, was completed and delivered on July 30, 2014.

(g) On July 31, 2014, Richard was sentenced following a joint submission made without direct mention of the Consideration Letter. The ITO accurately disclosed that he was given a suspended sentence and released.

(h) Following his release, Richard spent several hours with police being briefed on his role as an agent. D.C. Hunt was at that meeting, but there was no discussion of the Consideration Letter.

(i) Although D.C. Hunt was aware of discussions leading up to the preparation and finalization of the Consideration Letter, he was never advised (nor did he inquire) about whether it was in fact delivered to the Crown. Neither he (nor Richard) ever saw the letter.

(j) D.C. Hunt maintained that the information regarding the Consideration Letter did not alter his belief that reasonable grounds for a warrant existed as stated in the ITO although he acknowledged that the information should have been disclosed and he should have followed up to obtain confirmation the letter had been finalized and sent.

(b) Additional information relevant to s. 7 Charter application

[18] The defence cross-examined D.C. Hunt, (the ITO affiant) as to whether his omission of details relating to the issue of sentencing consideration was deliberate on his part and done with the purpose of ensuring that the warrant would in fact issue. D.C. Hunt maintained that the omission was an oversight on his part in relation to a matter that he ought to have followed up on, but failed to do when completing an ITO that had been weeks in preparation. He also maintained that he did not believe there was a danger the warrant would not have issued had he included the omitted information.

[19] An agreed summary of correspondence between Crown and police that was made an exhibit at the hearing included a reference dated July 11, 2014 to the effect that Assistant Crown Attorney Alan Spiegel had spoken to D.C. Martin who advised him that Richard “had been most helpful on an unrelated matter and would be sending a letter of consideration on the sentence for the matter Mr. Spiegel was case managing” (i.e. Richard’s break and enter charges). D.C. Martin had no note of such a conversation and, when cross-examined about the matter, had no memory of it either. He had some doubts as to the accuracy of the notation by Mr. Spiegel since the Consideration Letter was the responsibility of an entirely different team (Covert Operations) that he was not a member of.

[20] Richard had a number of meetings with police both before and after his release from custody, only some of which were subject to audio or video recording. All of the police involved took notes in the usual course of important events pertaining to the on-going investigation. I shall not review each and every interaction between Richard and the police. They may broadly be described as follows:

(a) Richard’s initial contact with police was by way of a voice mail left at 11 Division on April 8, 2014. That message was reviewed by Det. Waters who made notes of it and contacted superiors resulting in the initiation of this investigation. However, the actual recording of the voice mail was ultimately lost. The follow-up phone call to Richard made on April 9, 2014 by D.C. Martin was also recorded only by police notes.

(b) Richard provided two formal statements to police (May 5, 2014 and July 14, 2014). Both of these were videotaped, the former following a KGB warning, the latter with a KGB warning and under oath. There is no audio or video recording of interactions with Richard while he was being escorted to the police station and back, during the few minutes before and after each statement at the station, and during the calls preceding the statement where Richard’s consent to a judge’s order authorizing him to be taken from detention for this purpose was obtained;

(c) Richard was eventually approved to be enrolled formally as an agent of the police in respect of the on-going investigation of Mr. Kerr and was notified of that fact on July 25, 2014. In this connection, police had a number of meetings with him to permit him to review a proposed Acknowledgement Letter governing that relationship, to obtain independent legal advice in respect of it, to receive instruction on procedures and safety and to perform certain tasks delegated to him by the police. There were some video and audio records made of these meetings – recording Richard receiving instructions and signifying his agreement – but the recordings made were not comprehensive (i.e. they did not include the full time Richard was interacting with police).

Issues to be decided

[21] During the course of the hearing, the applicant conceded the facial validity of the ITO, but maintained that with disclosure of the information known or available to D.C. Hunt with proper diligence the warrant could not properly have been issued.

[22] The following issues were raised for decision at the hearing:

(a) In light of the non-disclosure, did the issuance or execution of the warrant violate the s. 8 Charter rights of Mr. Kerr?

(b) Was there deliberate non-disclosure by police in relation to the warrant and, if so, is there a basis to exercise the court’s residual discretion to exclude evidence from a validly obtained intercept?

(c) Has the applicant established a breach of his s. 7 Charter rights by reason of the alleged failure of police to preserve information and the alleged deception of police witnesses?

Discussion and analysis

(i) In light of the non-disclosure, did the issuance of the warrant violate the s. 8 Charter rights of Mr. Kerr?

[23] The legal issues raised by this aspect of the application and the principles applicable are for the most part straightforward and uncontroversial. For the sake of convenience, I shall re-iterate some of the main points of particular application in this case:

(a) While the privacy interest of an in-custody detainee such as the applicant is attenuated, there is no dispute that Mr. Kerr had a reasonable expectation of privacy attaching to his phone calls made from prison;

(b) Section 8 of the Charter protects against an unreasonable search, but a search will be considered to be reasonable if it is authorized by law, if the law is itself reasonable and if the search is carried out in a reasonable manner: R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 at p. 1160;

(c) There is no allegation in this case that s. 184.2 of the Criminal Code violates the Charter or that the interception of the communication from Mr. Kerr to the undercover officer on September 4, 2014 was carried in a manner not authorized by the warrant issued on August 1, 2014 or that such manner was unreasonable;

(d) The issue is therefore whether the interception of the call from Mr. Kerr to the undercover officer was pursuant to a valid legal authorization (the warrant issued under s. 184.2 of the Criminal Code);

(e) The standard of “reasonable grounds to believe” in s. 184.2 of the Criminal Code requires neither “proof beyond a reasonable doubt” nor even proof to the standard of a “prima facie case”, but can be equated to “reasonable probability”: Debot at p. 1166;

(f) “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”: R. v. Garofoli, [1990] 2 SCR 1421, 1990 CanLII 52 (SCC) at p. 1452;

(g) “If the reviewing judge concludes that, on the material before the authorizing judge as amplified by any evidence taken on review, there was no basis upon which the authorizing judge could be satisfied that the preconditions for the granting of the authorization existed, the reviewing judge will conclude that the search or seizure contravened s. 8 of the Charter. The review is not a hearing de novo”: R. v. Pires; R. v. Lising, [2005] 3 SCR 343, 2005 SCC 66 at para. 8;

(h) “The review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application”: Nguyen at para. 57

(i) When weighing evidence relied upon by police, the reviewing judge should review whether the information was compelling, credible and corroborated, but bearing in mind that these factors do not form a separate test and weakness in one area may to some extent be compensated by strengths in another: Debot at p. 1168;

[24] It is also trite to observe that “reasonable grounds to believe” requires proof that rises beyond mere suspicion and that any assessment of the grounds must be based upon the totality of the evidence presented in the ITO (as amplified if required or subject to excisions that are required to be made) and not merely upon the reliability of a single piece of evidence in isolation.

[25] The latter point is of particular relevance given that the focus of the applicant’s attack is upon the credibility of Richard whose information was a material building block of the conclusion that reasonable grounds to believe existed. It is not necessary that Richard’s evidence be accepted as true beyond reasonable doubt at this stage. The exercise is one of assessing that evidence along with all evidence – including in this case the evidence that ought to have been presented in the ITO but was not – to determine whether the ITO establishes a credible-based probability that the statutory requirements in s. 184.2 of the Criminal Code are satisfied.

[26] I turn now to consider whether the warrant could have issued with the addition of the information disclosed on the voir dire regarding Richard’s request for sentencing consideration and the Consideration Letter that was either known to the affiant D.C. Hunt or that was readily discoverable by him through the exercise of due diligence having regard to the information he did know. In this regard, I find that D.C. Hunt had some grounds to know of the question of Richard possibly receiving sentencing consideration as early as July 14, 2014, and knew that a consideration letter was being actively considered if not actually drafted as of July 29, 2014. He did not know it had been finalized and delivered when he completed the ITO on July 31, 2014 only because he did not turn his mind to it or follow up.

[27] The focus of the applicant’s attack was upon the credibility of Richard. In the applicant’s submission, Richard was a jailhouse informant whose information could not reliably be given any weight (once supplemented with the omitted information) having regard to the Debot “three C’s” (compelling, credible and corroborated). I shall therefore consider the evidence in relation to Richard under those three headings.

Was Richard’s evidence compelling?

[28] Richard provided first-hand information about conversations that he held directly with the accused. The information he provided described details of a plan to kill Tina. It described where she could be found and how the murder should take place. It described how payment might be effected. It described the motive of the accused. It described the requirements of timing. Richard’s information also provided reason to believe that others might be approached to execute this plan should Richard not do so.

[29] It is true that there were details that remained uncertain. Which drug was to be delivered (cocaine or crystal meth.) to make partial payment? The precise amount of payment remained in the air – was it to be limited to what could be found for the stealing in Tina’s apartment? Nevertheless, the seriousness and urgency of Mr. Kerr’s alleged intentions were conveyed with detail and clarity.

[30] I find that Richard’s information was compelling.

Was Richard’s evidence credible?

[31] The ITO did not sugar coat Richard’s criminal past. He had more convictions to his name than there are cents in a dollar. His sentences were disclosed and indicate that he has spent a large portion of his adult life in custody. The nature of his offences was also plainly on display – a large number of theft, break and enter and breach of release conditions. There were also unlawfully at large or escape custody charges. All of these may broadly be described as crimes of dishonesty.

[32] The ITO also disclosed that Richard was in custody at the time of his original disclosure to police and, in fact, was only released the same day the ITO was sworn (July 31, 2014) as a result of a guilty plea.

[33] The broad circumstances from which the examining judge could have inferred that Richard’s criminal history impacted negatively upon his credibility and inferred that a desire for lenient treatment might play a role in his motivations were quite fully disclosed in the ITO as submitted. D.C. Fernandes had reached a similar conclusion from his first day on the investigation before meeting Richard and with much less information.

[34] The ITO also contained information that mitigated to some degree the credibility deficit that Richard’s record suggested. His lengthy record contains little in the way of actual violence, a factor that lent some credibility to the motive he stated in his two video statements. In these, he stated that he wanted to prevent Tina from being hurt. Mr. Kerr’s alleged request to murder Tina went far beyond anything Richard had yet been charged or convicted of at least.

[35] The ITO attached as an appendix both video statements of Richard (May 5, 2014 and July 14, 2014). These give the viewer some opportunity to judge his demeanor and consider the totality of his statements rather than the summary of them contained in the body of the ITO. Having reviewed these, I cannot say that a reviewing judge would have been in error in finding Richard appeared sincere, including when he described his motives.

[36] There is another factor supporting his credibility that was patent on the face of the ITO as submitted. Richard was a frequent offender. A very frequent offender. While hope frequently triumphs over reason when it comes to explaining human actions, Richard faced a reasonably high likelihood that he would be back in custody at some point in the future. He provided his evidence knowing that it might have to be repeated publicly in court – he was neither offered nor asked for confidential informer status. The prospect of being returned to custody as an identified police informer would entail significant risk to Richard. That risk offers a powerful counter-weight to whatever prospect of favourable treatment for these relatively minor charges he might have privately hoped to receive.

[37] All of this was patent on the face of the ITO even without the additional disclosure that I have found ought to have been present to satisfy the full frank and fair disclosure obligation.

[38] The evidence at the voir dire regarding Richard’s potential motive of self-interest did not materially alter the picture. The evidence that emerged was relevant and material, but ultimately equivocal.

[39] I begin this analysis by dismissing the applicant’s attempt to characterize the omitted evidence as amounting to an undisclosed “plea deal”. That is a vast overstatement. Richard pleaded guilty on July 29, 2014 without condition. The judge was advised by defence counsel of “equitable considerations” going to sentencing that he hoped would result in a letter from police to the Crown, but specifically said that the sentencing hearing should go forward on July 31, 2014 regardless. There was no evidence of any “deal” having been reached in consideration of the guilty plea. The idea is an unlikely one as Richard adamantly maintained that his firm intention was to plead guilty and his unbroken record of having done so on more than 100 prior occasions lends considerable weight to that assertion.

[40] Richard did in fact voice a desire for police to intercede with the Crown to let the Crown know of the assistance he was providing in the matter of Mr. Kerr. However, he did not make that request until July 2014 - weeks and indeed months after he had provided almost all of the information that the ITO attributed to him. Further, when he made the request, he received only a very limited and qualified commitment from police to consider providing a consideration letter to the Crown.

[41] The end result of that request was the Consideration Letter that was delivered to the Crown after his guilty plea and on the eve of his sentencing.

[42] The logic that ties this relatively low level of consideration requested and received in July to Richard’s decision to approach police in April with information about Mr. Kerr’s alleged plot to arrange to kill Tina is not compelling.

[43] It is not necessary for me to conclude that Richard’s credibility was stellar or even strongly demonstrated in order to conclude that his evidence could reasonably bear some weight and be considered credible to some degree. The Debot analysis of the three “C’s” is not performed in isolation and does not prescribe a minimum standard for each. Rather, deficiencies in one may be supplemented by strength in another. Compelling and partially corroborated information from a witness of suspect credibility may be sufficient where vague and uncorroborated evidence from a perfectly credible witness may not. Richard’s information as disclosed in the ITO was sufficiently credible to sustain reasonable grounds to believe and the omitted information did not materially detract from that credibility – as subject to caveats and question marks as it may have been.

Was Richard’s evidence corroborated?

[44] The ITO provided information that offered significant corroboration of aspects of Richard’s story as he related it to police. Mr. Kerr’s relationship with Tina, her address in Hamilton, her phone number and that of the psychotherapist were all verified by independent investigation.

[45] Richard’s evidence regarding aspects of Mr. Kerr’s record (and the facts underlying it) as well as the motive he attributed to Mr. Kerr was also corroborated to some degree by independent investigation.

[46] Most importantly, Richard provided police with letters that were apparently in Mr. Kerr’s hand that corroborated Richard’s evidence of the evolution of Mr. Kerr’s plan before Tina’s murder was decided. One of the letters was in very large block print containing Tina’s address. Richard’s vision handicap would make his possession of a paper with Tina’s address allegedly from Mr. Kerr and printed in such a fashion logical. The text of one of the letters refers to two emissaries delivering it who would not be known to Tina. The letter to Tina supports the existence of Mr. Kerr’s motive to remove the risk of Tina’s testimony.

[47] The ITO contains significant elements of corroboration of the information relayed by Richard to police.

[48] The sufficiency of the reasonable grounds to believe related in an ITO is not judged in hindsight or by a micro-analysis of one aspect of the ITO to the exclusion of the rest. It would be an error to approach the task from the perspective of determining whether a source is credible in the abstract or in isolation without assessing whether the information provided was compelling and the degree to which it was corroborated. It would also be an error to approach the task from the perspective of looking for conclusive proof of the reliability of a particular source of information – even an important source with as many indicia of bad character as Richard has. While there were certainly grounds to question Richard’s credibility and motives, there were also reasonable grounds to attach some weight to his information and those reasonable grounds were not materially diminished by the information D.C. Hunt omitted.

[49] The applicant appears to have proceeded from the erroneous assumption that the ITO had to justify attributing any weight to the evidence of Richard in the ITO by reason of the type of witness Richard is alleged to be. It is not generally helpful to “pigeon-hole” witnesses into particular categories in advance, an approach that Dickson J. rejected in Vetrovec v. The Queen, [1982] 1 SCR 811, 1982 CanLII 20 (SCC) at p. 823. The appropriate response is to examine the evidence, albeit carefully, against the required standard of proof which in this case is “reasonable grounds to believe”. It must be recalled that a warrant is issued in furtherance of an investigation. It flows from this that an investigation may result in the determination that the suspected crime was not in fact committed and the belief – although reasonable at the time – was ultimately proved to be unfounded. That subsequent discovery does not retroactively invalidate the warrant: R. v. Pires; R. v. Lising, at paras. 40-42.

[50] As supplemented with the omitted information, the ITO contains information on the basis of which the warrant could have issued. I therefore conclude that the interception and recording of Mr. Kerr’s conversation with the undercover officer was validly authorized and did not breach Mr. Kerr’s rights pursuant to s. 8 of the Charter.

[51] Even if the warrant were found to be improperly obtained, it does not follow that the evidence of the conversation itself should be excluded from evidence pursuant to s. 24(1) of the Charter even if the actual recording of it were excluded. Mr. Kerr’s reasonable expectation of privacy under s. 8 of the Charter extends only to the warrantless recording of that conversation (were the warrant to be found invalid). Mr. Kerr can have had no reasonable expectation that the person he is speaking to will not listen to him or remember what he says. There is no reasonable expectation of privacy of the speaker attaching to a conversation as recalled by the person who was a party to it. No warrant was required for an undercover officer to have a discussion with Mr. Kerr nor was one required to authorize the officer to record his own recollections of that call by way of notes made immediately after the call ended. The officer would at all events be able to testify as to his personal recollections of the call, including his memory as refreshed by reference to his own notes.

(ii) Was there deliberate non-disclosure by police in relation to the warrant and, if so, is there a basis to stay proceedings altogether or to exercise the court’s residual discretion to exclude evidence from a validly obtained intercept?

[52] The applicant submitted to me that the omissions from the ITO by D.C. Hunt were deliberate. The applicant relies upon R. v. Paryniuk, 2017 ONCA 87 to submit that such deliberate omissions engage the court’s jurisdiction to protect the integrity of the approval process by staying proceedings or excluding the evidence arising even if the warrant is found to be otherwise valid after applying the Garofoli analysis.

[53] In Paryniuk, Watt J.A. recognized (at para. 69) “a residual discretion to set aside a warrant despite the presence of a proper evidentiary predicate for its issuance where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like”. The standard to invoke this jurisdiction was said to be “high” and may indeed require conduct amounting to abuse of process (at para. 70).

[54] In my view, it is not necessary to explore the limits of my jurisdiction under Paryniuk or whether conduct amounting to an abuse of process has been made out because I am unable to agree with the applicant’s core submission that D.C. Hunt has been deliberately deceptive or dishonest. Having carefully reviewed all of the evidence, I come to the opposite conclusion. I found D.C. Hunt to be a careful, honest and candid witness.

[55] I come to this conclusion from multiple angles.

[56] I listened to the evidence of D.C. Hunt and his demeanor and considered it carefully in the context of all of the other evidence I heard. It was believable evidence, naturally and consistently recounted. He was not shaken on cross-examination. I found it to be worthy of belief.

[57] The suggested motive for deception – ensuring the issuance of the warrant that was otherwise have been in danger of being refused – does not bear scrutiny. D.C. Hunt made notes of the internal meeting on July 29, 2014 where the subject of Richard’s request for consideration came up. His own notes record this and, as an experienced officer, he knew very well that his notes would be disclosed to counsel and could form the basis for an attack upon the warrant. Further, the information not included was of only limited relevance. D.C. Hunt did not believe that the omitted information would have had any impact upon the issuance of the warrant. That belief was a reasonable one.

[58] I find that the omission of the information regarding Richard’s request for consideration and the subsequent dealings with that request by police from the ITO was inadvertent on D.C. Hunt’s part and caused none of the claimed prejudice to the Charter rights of the applicant.

(iii) Has the applicant established a breach of his s. 7 Charter rights by reason of the alleged failure of police to preserve information and the alleged deception of police witnesses?

[59] The applicant alleges that rights under s. 7 of the Charter were breached by reason of (i) the allegedly deliberate deception and dishonesty of police witnesses; and (ii) the failure of police to create and preserve a video or audio record of all dealings with Richard. The remedy sought for these alleged breaches is a stay of proceedings or an exclusion of evidence.

[60] Section 7 of the Charter guarantees to everyone “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.

[61] I shall examine the foundation of each of the two circumstances (dishonesty and preservation of evidence) alleged to amount to a breach of the applicant’s s. 7 Charter rights.

[62] Has there been deliberate deception or dishonesty of police witnesses? Could any such dishonesty have the effect of depriving the applicant of liberty except in accordance with the principles of fundamental justice?

[63] I start with the conceptual problem of how police testimony at trial where the accused’s right to liberty is at stake can amount to a deprivation of anything. If the evidence is found to be false or unreliable, then it will not be relied upon and may give rise to adverse inferences. At all events, such evidence would play no role in depriving the individual of liberty. There is a certain circularity to the proposition.

[64] As interesting as the debate might be to pursue, the applicant has failed to discharge the onus upon him to establish a factual foundation for the claim. The applicant relied upon two instances of police conduct that were said to rise to the threshold of a s. 7 Charter breach.

[65] Firstly, it is alleged that D.C. Hunt’s failure to disclose the details of Richard’s request for police assistance and the Consideration Letter was deliberate and designed to deceive the issuing judge.

[66] I have already dealt with that issue above and need not repeat my findings here. The failure to disclose was not deliberate and the omission was inadvertent. D.C. Hunt did not believe – and my analysis of the issue confirms – that the omission would have any impact upon the decision to issue the warrant sought. There was more than sufficient evidence to ground a reasonable belief in the predicates to issue the warrant and the evidence of relatively slight consideration sought, considered and granted months after the witness had already provided the greater part of the information upon which the request for a warrant was grounded added only marginally to the credibility question.

[67] Secondly, it is alleged that D.C. Martin lied at trial. I cannot agree with that assertion and find that he was open, candid and honest in his testimony at trial.

[68] The basis of the applicant’s claim is that there was an admission at trial given by the Crown regarding correspondence between the Crown and police in relation to Richard. The admission includes the assertion that Assistant Crown Attorney Spiegel recorded a note on July 11, 2014 to the effect that he spoke to D.C. Martin that day and was advised by him that Richard had been “most helpful” on a matter unrelated to the charges he was facing and that he would be sending a letter for consideration on the sentence. D.C. Martin had neither a note in his book nor any memory of such a discussion with Mr. Spiegel. He also thought that it would be unlikely that he should have said that he would be sending a letter for consideration since such letters are the responsibility of an entirely different group within Toronto Police Services (the letter would be the responsibility of Covert Operations – the group specifically mentioned in the July 14 Acknowledgement Letter signed by Richard as considering the issuance of such a letter).

[69] The existence of such an unexplained and minor conflict in the evidence does not lead to an inference of deliberate dishonesty. D.C. Martin’s perplexity when confronted with this issue was genuine and requires no mental gymnastics to comprehend. D.C. Martin in fact had no role in agreeing to issue the Consideration Letter or in the actual drafting of it. He was not present when Richard raised the subject the day before with D.C. Fernandes. The entire issue was outside his field of responsibility. If he had heard of the matter from others around the water cooler and later mentioned it to Mr. Spiegel, it does not stretch credulity that such a routine communication between police and Crown might not be recalled or recorded in police notes. D.C. Martin had no reason or motive to suppress mention of sentencing consideration for Richard from his notes still less did he have reason to expect that an ITO that he was not drafting and would not be completed for two more weeks might or might not mention it.

[70] Whether Mr. Spiegel was in error in making his own note or whether D.C. Martin has forgotten a routine discussion on a matter outside of his sphere of responsibility three years in the past is a question that cannot now be answered. However, dishonesty and deception are the least likely conclusions to be drawn from these facts and I decline to do so.

[71] Some perspective is required here. While the applicant seeks to attribute considerable importance to it in hindsight, the Consideration Letter was not an object of secrecy or mystery or even particular importance to the investigation in July 2014. There were certainly procedures to be followed and D.C. Fernandes, who received the request, initiated them. However, there is no reason to expect that Richard would have been treated differently if there was no such letter and his lawyer had instead simply brought up Richard’s co-operation with police in sentencing submissions as a mitigating factor. The transcript of the proceedings on July 29 and July 31, 2014 makes it quite clear that this is precisely what Mr. Berg expected to do if the letter was not forthcoming on time.

[72] The applicant has failed to demonstrate that there has been any police dishonesty or deliberate deception in this case. I have no reason whatsoever to credit the suggestion. I therefore turn to consider the second ground of the applicant’s s. 7 claim being the alleged failure of police to preserve evidence.

[73] There is no dispute that police had numerous interactions with Richard between April 2014 and his re-arrest in September 2014. I have summarized these above. Police involved in such interactions took notes in the usual course – these were variously detailed and sparse depending upon what occurred. It is not surprising that small talk during a two-hour car ride generated nothing of sufficient importance to be recorded in notes, for example.

[74] The applicant is critical of police for failing to ensure that all rather than merely some of those interactions were made the object of video or audio recordings in addition to police notes of relevant details. These, it is suggested, would enable the defence to scrutinize Richard’s demeanor throughout, to test the officers’ notes for completeness (particularly as regards the matter of consideration sought by or given to Richard) or to determine whether there were any noteworthy inconsistencies in the narrative related by Richard. Lacking these tools at trial to test Richard’s credibility, the defence submits that Mr. Kerr’s right to make full answer and defence has been seriously impaired to the point that his s. 7 Charter rights have thereby been violated.

[75] In support of the applicant’s position that police had a duty to make such a video or audio record, the applicant relies upon the recommendations of Commissioner Kaufman following his investigation of the circumstances of the conviction of Guy Paul Morin. In his report, Commissioner Kaufman recommended that all contacts between police and “in-custody informers” should be videotaped absent exceptional circumstances: F. Kaufman, “The Commission on Proceedings Involving Guy Paul Morin”, (1998), Recommendation 58. The same report discussed at some length the risks associated with reliance upon the testimony of such “in-custody informers”.

[76] I cannot agree with the applicant that there is a Charter right to cause the police to create a more extensive record of their dealings with a particular witness by reason of his or her presumed status or that failure to do so results in a trial that fails to conform to the principles of fundamental justice.

[77] The applicant does not go so far as to suggest that there is a general duty upon police to create such a record for the use of the defence in the case of all witnesses. The duty alleged is predicated upon allegedly higher obligations recognized by the Kaufman Report in the case of “in-custody informers” by reason of their allegedly toxic and dangerous nature.

[78] The applicant’s position is founded on a false premise. The Kaufman Report did not consider witnesses in the situation of Richard nor do its recommendations apply to him. The term “in-custody informer” was very specifically defined in the Kaufman Report. That definition (at p. 601) applies to someone who:

(a) allegedly receives nor or more statements from an accused

(b) while both are in custody, and

(c) where the statements relate to offences that occurred outside the custodial institution.

The accused need not be in custody for, or charged with, the offences to which the statements relate. (Emphasis added.)

[79] Unlike the situation under investigation in the Kaufman Commission, Richard was a direct witness of the alleged offence – in this case Mr. Kerr’s alleged attempt to encourage or solicit him to carry out the murder of Tina. The crime in question thus occurred in prison. Further, he was engaged as an agent of police and was to provide further services in that capacity. The investigation plan contemplated his continued active assistance in arranging for undercover officers to communicate directly with Mr. Kerr regarding the plan.

[80] The applicant also cited R. v. Brooks, 2000 SCC 11 as providing additional support for recognizing the greater risks posed by jailhouse informers and implying a duty to create a more fulsome record of dealings with such witnesses. In my view, Brooks is no support for this proposition as regards Richard at least. In Brooks, Bastarache J. cautioned against “pigeon-holing” witnesses into particular categories (at para. 5) and defined “jailhouse informant” as an “inmate, usually awaiting trial or sentencing, who claims to have heard another prisoner make an admission about his case”: Brooks, at para. 7.

[81] Brooks is no authority for considering all in-custody witnesses to be presumptively toxic or dangerous to the extent of requiring blanket video or at least audio recording of all encounters, no matter the reason for the encounter or the subject-matter to be discussed.

[82] I do not find it necessary to comment upon whether the recommendations in the Kaufman report can be considered to have acquired the weight of constitutionally-protected minimum standards of fundamental justice.

[83] Secondly, there is a fundamental difference between having an obligation to preserve evidence and an obligation to create evidence. This application implies a Charter-imposed obligation to create evidence where none presently exists.

[84] Police may create various types of evidence for any number of reasons. Confessions or statements of complainants who are minors are but two examples that come to mind. They may also have professional obligations to fulfill, such as the requirement to make and preserve notes of important events that occur while on duty. There is no general obligation upon police to create evidence in the form of video or audio recordings of all dealings with all witnesses even if such a record might be useful to the defence, still less a Charter-protected right to compel them to do so.

[85] In the present case, the record is entirely adequate to the task of permitting an assessment of the credibility of Richard. He provided two detailed statements voluntarily, both of which were videotaped. He provided a recorded statement acknowledging the very limited degree of police assistance that he might receive. He was subjected to cross-examination at a preliminary inquiry and before me at trial. In all of this, there was ample opportunity to probe for inconsistent evidence, to challenge motive or otherwise to look for grounds to attack his credibility.

[86] All of the encounters with police that were not video or audio recorded were encounters with officers under a professional obligation to record important facts relating to the investigation. The request for sentencing consideration made by Richard on July 10, 2014 was recorded in D.C. Fernandes’ notes and was relayed up the chain of command almost immediately. It was the object of further internal discussions among police including with D.C. Hunt, which discussions resulted in further notes. The finalization of the consideration letter was the object of further notes of D.C. Beadman. There is simply no basis to infer from this ample record that there were prior requests for consideration by Richard that somehow escaped being recorded in notes by the officers who would have either heard such a request or have had to deal with it. The existence of these notes puts paid to the suggestion that there was some sort of dark conspiracy to suppress evidence of any consideration having been requested, considered or granted. The same reasoning applies to the prospect of finding evidence of an inconsistency in the narrative. The subject-matter of each encounter with Richard was the object of careful examination by the defence of the officers involved. Each was under an acknowledged obligation to record in their notes important events relating to the investigation. There is no basis to infer that anything has been lost.

[87] There is simply no demonstrated basis to conclude that proceeding with Mr. Kerr’s trial in these circumstances has deprived Mr. Kerr of a trial that is in accordance with the principles of fundamental justice.

[88] The onus of establishing a breach of s. 7 lies upon the applicant in this case and the applicant has failed to establish that Richard falls within the category of witness to whom the alleged higher minimum standard of evidence creation applies or that there has been a failure to preserve any evidence. I do not find it necessary to address the question of whether duties in relation to creation of enhanced records may exist in other contexts, including those contemplated by the Kaufman Commission.

[89] There being no demonstrated breach of s. 7 of the Charter, I do not find it necessary to consider the arguments advanced in relation to remedy under s. 24 thereof.

Disposition

[90] For the foregoing reasons, the applications of the accused are dismissed. I find that the recording of the call made on September 4, 2014 was made pursuant to a lawfully obtained warrant without breaching any of the Charter rights of Mr. Kerr. I find that there has been no breach of the applicant’s rights under s. 7 of the Charter by reason of any alleged failure to preserve evidence nor by any alleged dishonest or deception on the part of police. The applicant having failed to establish the factual or legal foundations for any of the claimed breaches of his s. 7 or s. 8 Charter rights, it is not necessary to consider applicable remedies under s. 24(1) or s. 24(2) of the Charter.

S.F. Dunphy J.

Date: December 8, 2017

[^1]: R. v. Brooks, 2000 SCC 11 [^2]: F. Kaufman, “The Commission on Proceedings Involving Guy Paul Morin”, (1998), Vol 1, p. 601