R. v. N.J., 2017 ONSC 857

CITATION: R. v. N.J., 2017 ONSC 857

COURT FILE NO.: CR-15-9000496

DATE: 20170203

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

N.J.

Defendant/Applicant

COUNSEL:

Chris De Sa, for the Crown

Stephen Bernstein, for the Defendant/Applicant

HEARD: January 9-11 and 13, 2017 at Toronto

RULING

GILMORE J.:

Overview

[1] The Applicant is charged with four counts of Possession for the Purpose of Trafficking and two counts of Possession of the Proceeds of Crime, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) and s. 354(1) of the Criminal Code, R.S.C. 1985, c. C-46 respectively.

[2] There are two applications before the court in this matter. First, the Applicant seeks a ruling that the procedure set out by the Supreme Court of Canada in step six of R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 is inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms as the procedure does not permit the defence to know the case to be met. The procedure violates the “open court” principle and undermines public confidence in the administration of justice. A notice of constitutional issue has been filed by the Applicant.

[3] In the second application, the Applicant challenges the search warrant in this case on the basis that the Information to Obtain (ITO) lacks sufficient detail to justify its issuance. The Applicant’s position is that the warrant cannot be sustained and therefore infringes the applicant’s right to be secure from unreasonable search and seizure pursuant to s. 8 of the Charter. The Applicant seeks to exclude evidence seized under the warrant pursuant to s. 24(2) of the Charter, as its admission would bring the administration of justice into disrepute.

Background Facts

[4] On June 24, 2014 a warrant was issued authorizing the search of 1 De Boers Drive, Penthouse 3 in Toronto (the “residence” or “De Boers”). Appendix “A” of the warrant indicated that the search was for “cocaine” and “packaging.”

[5] The warrant was supported by an ITO sworn by Detective Constable Matthew Oliver (“the affiant”). The same ITO was relied upon to authorize the search of the Applicant’s two vehicles: a 2014 white Jeep Cherokee and a grey 2007 Lexus.

[6] Police had received detailed information from a “reliable” confidential source (“CS”) regarding the Applicant trafficking in cocaine. The informant was known to police and had proven reliable on a number of occasions in the past. The informant was advised of the consequences of being untruthful and that consideration sought by him/her would not be forthcoming if the information did not prove to be fruitful.

[7] Observations made by the CS and included in the ITO included;

• Observing the Applicant in possession of cocaine and having knowledge that the Applicant was in possession of and trafficked in cocaine. Information was provided as to the informant’s source of this knowledge.
• Details about the Applicant’s dealings with the informant including dates and locations.
• Information that the Applicant’s possession of cocaine was recent.

[8] The information from the CS lead to police confirming the identity of the Applicant and linking him to the 1 De Boers Drive address. Police conducted surveillance on June 22, 2014 and observed the Applicant at the De Boers Drive address. They followed him from that address to an address on College Street where he appeared to engage in a hand-to-hand drug transaction with two females. He was observed leaving and returning to De Boers at short intervals.

[9] On June 23, 2014, police confirmed with Building Management that the Applicant resided in Penthouse 3 at the De Boers Drive address. Based on surveillance and the information provided by the CS concerning the Applicant’s alleged possession and trafficking of cocaine, the police executed a search warrant at the De Boers Drive penthouse on June 24, 2014.

[10] Once inside the dwelling, the police located 811.67 grams of cocaine, 24.91 grams of crack cocaine and 203.01 grams of MDMA. The police observed cocaine encrusted cooking tools in the kitchen along with other drug paraphernalia. Documents in the Applicant’s name were located throughout the dwelling. Immediately prior to the execution of the search warrant, the Applicant was arrested outside of the residence on the trafficking offences.

[11] The version of the ITO disclosed to the defence was heavily redacted to protect the identity of the CS. The Crown acknowledged that the redacted version of the ITO was insufficient to meet the criteria set out in R. v. Debot, 1989 13 (SCC), [1989] 2 SCR 1140. A Judicial Summary of the redacted information was provided to the Applicant and marked as Exhibit “D” on the application. After review and submissions by the Applicant’s counsel, a supplement to the judicial summary was provided to the Applicant and marked as Exhibit “E”. After discussions between counsel during the cross-examination of the affiant, further supplemental information was given to the Applicant’s counsel and marked as Exhibit “F.” Notwithstanding the supplements to the judicial summary, the Applicant continues his challenge of the redacted ITO and the Step Six process.

[12] In summary, the Applicant’s concerns with the redacted ITO focused on the following areas:

• A lack of detail regarding the reliability of the CS;
• A lack of information as to how the CS was able to identify the Applicant;
• Insufficient information to support a reasonable belief that the Applicant was in possession of cocaine on June 24, 2014 or that there was cocaine in the residence;
• A lack of detail regarding investigative steps taken to determine the identity of the two females involved in the alleged “hand-to-hand” drug transaction on June 22, 2014;
• Inconsistencies on the part of the affiant as to where the cocaine may be stored (i.e. in one or both vehicles and/or at the residence); and
• The request for an extended time frame to conduct the search (i.e. a search for cocaine that “would be” at the residence as opposed to “at” the residence) cannot be authorized pursuant to s. 11 of the CDSA.

[13] The Crown’s position is that the combined effect of the judicial summary, the supplementary judicial summary, the further supplemental information and the redacted ITO will allow the defence a meaningful review pursuant to the Debot criteria. In this case, the information available to the Applicant in the judicial summary includes specific reference to appendices and pages of the ITO. Further, the information available to the Applicant sets out the nature of the redacted information in the ITO, including the following:

• The motive for the source and the nature of the consideration sought.
• The source had proven reliable on prior occasions which are listed in the ITO. The nature of any information provided in the past, the results of that information and whether seizures resulted from that information.
• The source has a criminal record which does not include any crimes of dishonesty.
• The source was advised of the consequences of providing false information, both in terms of possible criminal consequences and the consideration sought. Police had no information from this investigation which would demonstrate that the source’s information was false or misleading.
• The source observed the Applicant in possession of cocaine and knew he trafficked in cocaine. The source of the CS’s knowledge is included in the affidavit.
• The source’s knowledge of the Applicant’s connection to 1 De Boers Drive. While there are no direct observations of the accused in possession of drugs at the De Boers address, the affiant’s belief that drugs would be located there is outlined in the affidavit and is based partially on information from the source.
• Details as to the date and location of the source’s observations of the Applicant in possession of cocaine including recent dates.
• The source provided detailed and first-hand information related to the nature of the accused’s drug dealing and possession of cocaine, including amounts.
• The ITO references the context in which the source knows the Applicant.
• Nothing in the source information indicates that the Applicant kept drugs in his vehicles.

[14] Cross-examination of the affiant took place to allow the Applicant to explore inconsistencies in the ITO and to flesh out certain issues. The Crown was given notice of the intended areas of cross-examination and the Applicant’s leave to cross-examination was not opposed by the Crown. Crown and defence cooperated effectively to ensure a minimal number of objections.

[15] The report of Detective Michael Brammall was received on consent. That report sets out the types of drugs found at 1 De Boers as well as both their street and wholesale value. The report concludes that the amounts of cocaine, crack cocaine, MDMA and marihuana are consistent with possession for the purpose of trafficking and the amount of cash found is consistent with possession of the proceeds of crime.

The Section 7 Challenge

[16] The Applicant by way of his application and Notice of Constitutional Issue argues that the Step Six procedure under Garofoli is incompatible with the Charter in two ways. First, the Step Six procedure violates the right to a fair hearing as guaranteed by s. 7. The process does not comply with the common law requirement of full disclosure of all information presented to the trial judge with respect to a decision affecting the accused’s liberty. As such, the defence cannot know the case to be met. Second, the Step Six procedure violates the “open court” principle and undermines public confidence in the administration of justice in that the court must base its decision with respect to Charter compliance on information not disclosed to the defence.

[17] The Crown’s position is that in R. v. Crevier, 2015 ONCA 619, the Ontario Court of Appeal has already analyzed the Step Six process in the context of s. 7 of the Charter. The decision is binding on the court and no further analysis of Step Six is therefore required. Alternatively, the Crown submits that the Step Six procedure is a fair one which is more helpful to the defence than previous processes involving search warrant challenges.

The Step Six Garofoli Procedure

[18] In Garofoli, the Supreme Court of Canada set out a six step process for situations in which the Crown objects to the disclosure of certain redacted portions of an ITO due to informant privilege. In the case at bar, it is conceded that only Step Six is engaged. That is, the Crown concedes that the redacted ITO on its own is insufficient to support the authorization of the warrant. This step is described at p. 1461 of Garofoli as follows:

6. 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.

[19] While Garofoli dealt with a wiretap authorization, case law since that decision has made it clear that Step Six applies to search warrants as well: see R. v. Blake, 2010 ONCA 1, and R. v. Rocha, 2012 ONCA 707.

[20] The redaction of the ITO is based on the requirement to protect the identity of the CS. The only exception to informant privilege is when an accused’s “innocence is at stake”, that is, the information from the CS would tend to prove the innocence of the accused. Such an exception is not claimed in this case.

[21] The use of Step Six was essentially dormant until R. v. Learning, 2010 ONSC 3816, at para. 107, in which Code J. stated;

It is unfortunate that “step six” in Garofoli is the only legal mechanism available, to resolve the conflict between the competing demands of Debot and Leipert, and yet it is simply not being tried and tested. The result is that we encourage officers like D.C. Connor to carefully prepare detailed and thorough grounds to arrest and search, that will meet the Debot criteria, and then we reward him with a declaration that he violated s.9 of the Charter because Leipert prevents the court from relying on the grounds. This does not seem right.

[22] Since Learning, there has been a proliferation of applications under Step Six and consideration of the process by the Ontario Court of Appeal in the recent cases of Crevier and R. v. Reid, 2016 ONCA 524.

[23] There is no doubt that the Step Six process involves the balancing of a number of competing interests including the right to make full answer and defence, informant privilege, law enforcement and the role of both the Crown and the trial judge. The balance is a delicate one involving both fairness to the accused, protection of police informants, common law principles related to the openness of our court system and protection of the public with respect to allegations of serious drug offences.

[24] It is this court’s view that the sought after but, easily fracturable, balance can be properly achieved through the Step Six process without infringing the accused’s s. 7 rights or offending any common law principles. My reasons are set out below.

The Right to Full Answer and Defence

[25] The right to full answer and defence is a fundamental principle of justice. Broken down, the right to full answer and defence includes the right to a hearing before an independent and impartial judge, a decision by the judge on the facts and the law, the right to know the case put against one and the right to answer that case. Of necessity, the right to full answer and defence cannot be unlimited. Contextual issues and competing interests dictate that such a principle is not immutable.

[26] In R. v. Pires; R. v. Lising, 2005 SCC 66 the Court described a Garofoli hearing as one in which the accused’s right to full answer and defence is “attenuated” because the determination relates to the admissibility of evidence and not the guilt or innocence of the accused. In that case, the accused challenged the requirement that leave be sought before cross-examination of the ITO affiant. In the Pires case, the Supreme Court of Canada did not view such a limit as unconstitutional and Charron J. indicated that even cross-examination at trial is necessarily limited by such important factors as relevance, hearsay, and solicitor-client privilege (at para. 37).

[27] It must not be ignored that the Garofoli hearing is one which engages only a narrow test with respect to whether the warrant could have issued on the information before the issuing justice. The evidence is not being presented to impugn the accused, but rather to determine the admissibility of a presumptively valid order.

[28] The defence argues that the importance of the hearing should not be minimized in that there is a “clear causal connection between a decision on the admissibility of evidence and a decision on the ultimate issue of guilt or innocence. Any proceeding determining the admissibility of evidence must therefore be fundamentally fair.”[^1]

[29] However, the often cited principle in R. v. Mills, 1999 637 (SCC), at para. 72, is also engaged in this case in that “...the principles of fundamental justice do not entitle the accused to the ‘most favorable procedures that could possibly be imagined’: R. v. Lyons, 1987 25 (SCC)… at para. 32. This is because fundamental justice embraces more than the rights of the accused.”

[30] The defence relies on Charkaoui v. Canada (Minister of Citizenship and Immigration), 2007 SCC 9 and Mission Institution v. Khela, 2014 SCC 24 for the proposition that the subject persons in those cases had liberty interests similar to the Applicant but were afforded more rights in terms of s. 7 and the case they were required to meet.

[31] In Charkaoui, the Appellant, Mr. Charkaoui, was a permanent resident of Canada who was arrested and held on a security certificate based on allegations of terrorist involvement. Mr. Charkaoui successfully challenged the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) procedure for determining the reasonableness of the certificate on the basis that it infringed s. 7 of the Charter. The possibility of detention during the certificate process and deportation potentially to torture engaged s. 7.

[32] At that time, judges presiding over such cases were entitled to review the material relied upon by the government. Where the government claimed confidentiality for national security reasons, the judge was unable to share the material with the named person. Part of the procedure could be held in camera without the named person or their counsel present. The presiding justice was the sole avenue of review of the decision to issue the certificate. If the decision of the judge was that the issuance of the certificate was reasonable there was no appeal and no avenue for judicial review.

[33] The Supreme Court had serious concerns with the process including a concern that the judge would be perceived to be in the camp of the government, would function more as an investigator than an adjudicator and finally that the judge would unconsciously take on a form of “defence” role and become associated with the named person’s interests.

[34] The Court held that the named person could not know the case they had to meet and that “... the judge’s efforts, however conscientious, cannot provide an effective substitute for informed participation” (at para. 62). The procedure under the IRPA was found to be contrary to the principles of fundamental justice afforded by s. 7 and was not saved by s. 1. Parliament was given one year to amend the law. The law was ultimately amended to allow the appointment of special counsel to assist the named person and ensure, within the constraints of national security concerns, that a fair hearing was held.

[35] In Khela, the Supreme Court considered, among other things, the scope of the duty of fairness in relation to a maximum security prisoner who had applied for a transfer to a medium security facility. The Court held that, if challenged on an application for habeas corpus, the correctional facility should provide to the judge a sealed envelope containing both the information disclosed to the inmate and the information not disclosed with reasons for the non-disclosure (at para. 87). As well, if anonymous tips were being relied upon by the correctional facility, information must be given in the sealed affidavit as to why the tips were reliable (at para. 88). In citing Charkaoui, the Court held, “When liberty interests are at stake, procedural fairness also includes measures to verify the evidence being relied upon” (at para. 88). If an individual is to suffer a form of deprivation of liberty, “procedural fairness includes a procedure for verifying the evidence adduced against him or her” (at para. 88). The Supreme Court of Canada agreed with the trial judge that the prison Warden’s failure to disclose information about the reliability of sources and specific statements made by them as well as the scoring matrix upon which Mr. Khela’s security classification was based, rendered the transfer decision procedurally unfair (at para. 93).

[36] The defence draws an analogy between the circumstances of the accused in a Step Six procedure and the rights afforded to detainees on a security certificate under the IRPA after Charkaoui and Mr. Khela, a convicted murderer in a maximum security facility.

[37] The defence makes the point that the s. 7 challenge in Re Harkat, 2014 SCC 37, was not successful because by the time that case was decided, the IRPA had been amended and special advocates were available to certificate detainees. The defence argues that the individuals in those cases were afforded more rights than his client or any accused under the Step Six procedure. The defence ponders why it is that defence counsel or amicus could not be trusted to agree not to reveal certain information to the accused. The defence submits that the law has changed since Charkaoui and that should be reflected in the Step Six process. The current process results in a form of “secret” trial with judges taking on a more inquisitorial than impartial role.

[38] I agree with the Crown that the defence concerns in this area and their reliance on Charkaoui is misplaced. In Charkaoui, the Court was being asked to determine if the issuance of the certificate was reasonable. Some of the information used as a basis to issue the certificate was withheld from the reviewing judge. The decision of the reviewing justice was final and without any avenue for appeal or review. The decision of the reviewing judge directly impacted on Mr. Charkaoui’s liberty in that he could be deported if the certificate was found to be reasonable.

[39] Of note, the Supreme Court observed that there are substitutes for full disclosure in some cases. At para. 59:

Similarly, in Chiarelli, the Court upheld the lack of disclosure on the basis that the information disclosed by way of summary and the opportunity to call witnesses and cross-examine the RCMP witnesses who testified in camera satisfied the requirements of fundamental justice. And in Ruby, the Court held that substitute measures provided by Parliament satisfied the constitutional requirements of procedural fairness (para. 42). Arbour J. stated, “In such circumstances, fairness is met through other procedural safeguards such as subsequent disclosure, judicial review and rights of appeal” (para. 40).

[40] In the case at bar, the Applicant’s request for leave to cross-examine the affiant was not contested. The cross-examination was fruitful and highlighted some potential problems with the ITO. A comprehensive judicial summary as well as two additional summaries, provided more information about the nature of the redacted information in the ITO and were provided after submissions by counsel, and urging from the court. At the time of the hearing, the defence had complete disclosure for the entire case. Rights of appeal for the defence exist with respect to this ruling. This factual background appears to be consistent with other cases involving Step Six such as R. v. Grant, 2013 ONSC 6792.

[41] The defence, again relying on Charkaoui, submits that the use of special counsel or amicus would better ensure that the accused is able to make full answer and defence. This court has a concern about the risks associated with such appointments, as recently articulated in R. v. Shivrattan, 2017 ONCA 23. In that case, trial counsel requested that amicus be appointed to assist the trial judge with the ITO redactions and the drafting of the judicial summaries. The motion was dismissed. On appeal, the Court cited R. v. Basi, 2009 SCC 52 for the proposition that a trial judge’s discretion could extend to the appointment of amicus to assist with issues relating to confidential informants in “particularly difficult cases” (at para. 65).

[42] In upholding the trial court’s decision to refuse the appointment of amicus, the Court of Appeal commented about the risks associated with the inadvertent disclosure of “apparently innocuous” facts to the accused which could identify the CS (at para. 69). The appeal court also commented that defence counsel at trial offered no plan as to how to avoid such inadvertent disclosure.

[43] As such, Shivrattan may be interpreted as not closing the door entirely on the appointment of amicus or special counsel, but only in the most difficult cases. This case, while important to this Applicant, is not one involving multiple co-accused or warrants. It is a case which is not atypical with respect to a search warrant challenge. Many cases fall into that category and would therefore not require such exceptional steps.

[44] In Khela the Court was being asked to determine whether Mr. Khela’s transfer to another correctional facility was lawful. Issues of procedural fairness were engaged when prison authorities sought to withhold certain information in the inmate’s file for security reasons. Obviously, Mr. Khela continued to be detained as a convict throughout the review process. His liberty interests were never engaged as he was already deprived of his liberty.

[45] In Charkaoui, the Court found that the security certificate review procedure in issue breached the named person’s right to make full answer and defence because it allowed a reviewing judge to consider information that was not included in the judicial summary provided to the person (at paras. 55, 139). At para. 63, McLachlin C.J.C. wrote, “If the judge cannot provide the named person with a summary of the information that is sufficient to enable the person to know the case to meet, then the judge cannot be satisfied that the information before him or her is sufficient or reliable.” However, if a summary is provided as an adequate substitute to the disclosure of evidence, then s. 7 may be satisfied (at para. 61).

[46] In her conclusion, McLachlin C.J.C. suggests that adequate solutions have already been “devised that protect confidential security information and at the same time are less intrusive on the person’s rights” (at para. 139). In my view the Step Six procedure as laid out in Crevier provides such a solution.

[47] Unlike the process contemplated in Charkaoui, the Court in Crevier explicitly says that the reviewing judge must not consider any information that could not be summarized for the applicant when considering the validity of a warrant at Step Six (at para. 87). The summary must be such it allows the applicant to challenge the information in argument or by evidence (at para. 87). Therefore, the conclusion in Charkaoui may be interpreted to mean that the judicial summaries provide an adequate substitute for full disclosure in the Step Six process.

[48] In the case at bar, the court is being asked whether there was a basis upon which to issue the warrant based on the Debot criteria. The redacted ITO is not being relied upon to convict the Applicant or deport him, nor is the Applicant already detained. The liberty interests of the Applicant are not engaged in the process because the court is dealing with a presumptively valid order. The Applicant attacks the lawfulness of the search and the admissibility of the evidence in support of the ITO. The warrant on its own, however, is far from being sufficient to ground a conviction.

[49] As the Ontario Court of Appeal described in Crevier, at paras. 63-67, there are five important aspects to the right to full answer and defence in the context of a Step Six procedure which I would summarize as follows:

• The accused has more than just the redacted ITO and judicial summary in order to challenge the warrant. An accused will also have all of the required disclosure pursuant to R. v. Stinchcombe, 1991 45 (SCC) as well as any evidence gathered from the cross-examination of the affiant.
• The Step Six process is an evidentiary hearing which does not explore the truth of allegations in the indictment. The guilt or innocence of the Applicant is not at stake.
• Whether or not an informant’s information is reliable or even true does not presumptively invalidate the issuing of the warrant.
• The standard of proof in a Step Six proceeding is not the standard at trial of “beyond a reasonable doubt.” Rather, the hearing is to establish whether “the minimum standard required for authorizing a search and seizure was established in the ITO” (at para. 66).
• Information which comes from a CS must be assessed in the context of the Debot criteria to ensure that it is compelling, credible and corroborated. Information about the reliability of the CS (positive and negative) must form part of the ITO insofar as it does not reveal the identity of the CS.

[50] Given the above, I do not agree with the defence that the ITO is being used to “prosecute” the Applicant in the context of a form of secret trial. Rather, the Step Six process affords the Applicant the right to full answer and defence in context. I agree with Goldstein J. in Grant that the right to make full answer and defence is not a static one (at para. 40). Rather, it must be evaluated differently in different factual and contextual situations.

[51] The Step Six process is not a perfect one. Indeed, questions may be raised about the information obtained from confidential sources and the extent to which this is controlled by the police. Perhaps there should be a random review of ITOs by an independent third party from time to time to ensure that confidential sources are not imbued with police “hunches” which then form part of an ITO. However, those concerns are not for this court to resolve. The question to be asked is whether or not the process as it exists is a fair one and complies with the principles of fundamental justice.

[52] Given the above, I find that the Step Six process is a fair one and does not offend the principles of fundamental justice for the following reasons:

• While the unredacted ITO is not available to the Applicant, this does not mean that the proceeding can be labelled “secret” nor can one go so far as to suggest it offends the open court principle. Rather, the redactions are meant to protect informer privilege. Such an exception to the usual disclosure requirements must be balanced with the public interest in law enforcement techniques. Particularly in drug cases, it is difficult for police to gather evidence in the drug underworld without a connection to that world. A CS can provide information that may otherwise be unattainable.
• The guilt or innocence of the Applicant is not engaged at this stage. It is an evidentiary hearing related to whether or not the evidence in support of the warrant was sufficient for it to have been issued.
• “Fairness” must be interpreted in context. As per Mills, the Applicant is not entitled to the best possible hearing. As recognized in Crevier, one cannot lose sight of what is at stake which is the validity of the warrant. The Applicant cannot be convicted based on the result of the Step Six hearing. Fairness of the hearing must be interpreted in that context. Fairness need not include, for example, the appointment of amicus to ensure full answer and defence: see Shivrattan.
• A fair hearing includes the right to cross-examine. However, in an evidentiary hearing such as this one, competing interests may necessarily limit that right. The most important competing interest is that of informant privilege which has been described as a near absolute privilege. In the case at bar, cross-examination of the affiant was permitted. Important information was obtained in the course of that cross-examination despite the Crown claiming informant privilege in relation to certain questions.
• The Applicant is able to mount a facial and sub-facial attack on the warrant through the use of the redacted ITO, the judicial summary, previously provided disclosure and the results of cross-examination (where permitted). The defence may, as it did in the case at bar, attack the steps taken to corroborate the validity of the CS’s information. The defence may argue in the alternative or challenge times and dates of transactions based on the whereabouts of the accused at relevant times. As per Crevier, the defence does have tools to mount both a facial and sub-facial challenge even in the face of informant privilege.
• In the context of the facial and sub-facial attack, the judicial summary is intended to provide sufficient information about the nature of the redacted information in the ITO to satisfy the defence that the criteria in Debot have been met while at the same time protecting informant privilege. Referring again to the context of the hearing, this is one in which full disclosure cannot be provided: see Crevier, at para. 83. The properly crafted judicial summary provides the necessary liaison between what cannot be disclosed to the defence and what is required to ensure the necessary degree of fairness.
• There will always be concerns about police fabrication and false information coming from informants. Those concerns transcend the analysis in this case. However, the issue in a Step Six procedure is narrowed to whether the police were reasonable in relying on the information provided. The informant information can be challenged based on the Debot criteria. If the information provided is false, it is unlikely to withstand a facial challenge based on Debot.
• I agree with the Crown that Crevier provides an analysis of s. 7 which cannot be ignored by this court. The protections afforded the accused in the Step Six procedure as set out above and as reviewed in detail in Crevier are sufficient to ensure that the accused can make full answer and defence. If those procedures are not followed, the accused may attack the warrant pursuant to s. 8.
• I do not agree that the trial judge’s role is compromised by the Step Six procedure. The trial judge does not assume an inquisitorial role as suggested by the defence. Rather, the trial judge acts as a gatekeeper to ensure that the balancing of competing interests is appropriate and fair. The fact that such balancing includes the trial judge having access to information that the accused may not, does not mean that the entire process is unfair. As set out in this ruling, the process can be broken down into various avenues of enquiry and information available to the accused while ensuring that law enforcement principles and informant privilege remain intact.

[53] Given all of the above, the application is dismissed. I do not find that the Step Six procedure in Garofoli is inconsistent with s. 7 of the Charter.

The S. 8 Challenge

Overview

[54] The defence submits that the Applicant’s s. 8 rights were violated when drugs and cash were seized from his home at 1 De Boers Drive. The defence argues, among other things, that the ITO did not disclose reasonable grounds to believe that drugs would be found in the Applicant’s home.

[55] As per R. v. Morelli, 2010 SCC 8, at para. 40, as reviewing judge, I do not engage in a review of the warrant issuance de novo. Instead, I must determine if the contents of the ITO (including the redacted portions) granted a justice with reasonable and probable grounds to issue a warrant and that evidence of an offence would be found at a specified place. As the reviewing judge, I am entitled to review all of the relevant material including the un-redacted ITO, the judicial summaries and evidence flowing from the evidence of D.C. Oliver. As most of the information contained in the ITO was from a CS, an analysis of that information must be done using the Debot criteria.

[56] The Crown agrees that this is a case in which Step Six should be engaged. However, the defence has challenged the constitutional validity of the Step Six process. Although that challenge was articulately and efficiently argued, it was not successful. Therefore, Step Six will be engaged in the usual manner.

[57] As indicated above, the defence was provided with the redacted ITO as well as a judicial summary and two supplementary summaries. Cross-examination of the affiant took place. The court was provided with the un-redacted ITO. Defence counsel in this case argues that even with the use of judicial summaries, he is unable to properly mount a sub-facial challenge.

[58] It is this court’s view that there was sufficient information in the ITO to support the issuance of the warrant. The judicial summaries adequately summarized the nature of the information protected by informant privilege thereby permitting full answer and defence. There was therefore no violation of s. 8 and the application is dismissed.

Facts

[59] Some of the background facts and an overview of the judicial summaries have already been set out for the purpose of the s. 7 challenge. A more detailed summary of the redacted ITO is set out below.

[60] Appendix “C” to the ITO states that Detective Constable Oliver has been a member of the Toronto Police Service since 1999. He has been with the Gun and Gang Task Force since January 2010. He works in an undercover capacity investigating persons to be in possession of illegal firearms. He also processes search warrants under the Criminal Code and the CDSA. D.C. Oliver stated that in the course of the investigation he read police reports, spoke with other officers, accessed police data banks and conducted various investigative techniques. He indicated that at the beginning of his affidavit he provided facts to support a search warrant for 181 Village Green Square, #1221, Toronto and a grey 2010 Honda Civic. In cross-examination, D.C. Oliver agreed that the description of the car and residence was wrong. He did not catch this when reviewing the ITO and agreed this was a careless mistake.

[61] D.C. Oliver deposed that he obtained information for this investigation from CPIC (an automated index to police agency records), ECOPS (an electronic record of incidents investigated by the Toronto Police Service), CIR (hard copy files of notes compiled by field officers) and CIPS (a computer database of all cases compiled for court by the Toronto Police Service).

[62] D.C. Oliver worked with D.C. Allan Racette and D.C. Paul Askin, experienced police officers who also worked in the Gun and Gang Task Force.

[63] In Part IV of Appendix C, D.C. Oliver provided an overview of the case, including particulars of the accused (d.o.b. October 11, 1981) and some background information including the fact that the accused has no criminal record and no outstanding charges; that he has a youth record for assault for which he received 12 months’ probation; that his driver’s license shows an address of 67 Ferdinand Avenue in Maple, Ontario; that he owns a 2007 grey Lexus (plate BSLF781); that the white Jeep Cherokee he was seen driving is owned by WTH Car Rentals; that a surveillance report dated November 7, 2014 showed the accused’s name on a tenant directory at 525 Wilson Avenue, Toronto; that he was observed entering the 525 Wilson Avenue building on November 18, 2014 and shortly thereafter the lights went on in unit #723. In cross examination, D.C. Oliver agreed that the police did no further surveillance of the Maple address to determine if there was any suspicious drug activity there. He also agreed that the November 2014 dates were wrong as they post-dated the warrant. The year should have read as “2013”. He agreed this was also a careless mistake on his part.

[64] D.C. Oliver received the following information from D.C. Racette on June 21, 2014. Based on redacted information from the CS which identified the accused’s connection to the address at De Boers Drive, D.C. Racette attended the De Boers Drive address to attempt to locate the accused. On June 20, 2014 at 1502 hours, he observed a person matching the description of the accused driving the white Jeep Cherokee. The person parked the vehicle in a visitor parking spot, opened the trunk and unloaded a dark coloured bag. D.C. Racette contacted AVIS rental who advised that the vehicle had been rented by the accused who gave the 67 Ferdinand Avenue address.

[65] On Sunday June 22, 2014, the accused was observed driving the Jeep Cherokee to College and Crawford Street in Toronto. He parked the vehicle, went into a restaurant and met two women and a man. They all walked out together and the accused then retrieved something from the vehicle, returned to the two women and conducted a hand-to-hand transaction for which he received a quantity of cash. The accused then left in the Jeep. D.C. Oliver confirmed in cross-examination that no further surveillance of the accused or the two women was done after the transaction.

[66] On June 23, 2014 D.C. Oliver spoke with D.C. Askin who advised that surveillance of the accused revealed that he was listed on the address list of 1 De Boers Drive. Building management confirmed he had leased two-bedroom penthouse #3 commencing April 23, 2014. The lease included one underground parking spot which was registered to the Lexus. Surveillance confirmed that the Lexus was parked in the designated spot. During surveillance, the accused arrived in the Jeep and parked in the visitor parking area and went into the De Boers address.

[67] Based on the information in Appendix C, D.C. Oliver deposed that he had reasonable grounds to believe that the accused was in possession of cocaine and that it was stored at the De Boers residence, in the Lexus and in the Jeep. Corroboration of the grounds is found in Appendix D. D.C. Oliver also deposed that the information in Appendix C supplied reasonable grounds to believe that the seized items would support the offence of trafficking and that the items to be seized were at the places to be searched. D.C. Oliver requested a three to four day window of time for execution of the warrant to ensure that the accused was present at the residence at the time of execution.

[68] Appendix D was heavily redacted to protect the identity of the CS. The reliability of the source information indicated that the CS was a carded police informant who was cautioned regarding the importance of telling the truth and aware of the consequences of failing to do so, including possible criminal charges of public mischief or obstructing a police officer. The ITO indicated that there was no evidence of the CS being misleading. The CS was advised that the information provided once acted upon must be reliable and fruitful before any consideration could be given. The CS did not agree to testify and provided information on a confidential basis only. Further information regarding the nature of the reliability of the CS was provided in the judicial summaries.

[69] The summary of information provided by the CS in Appendix D is almost entirely redacted. The judicial summaries indicate that the nature of the information contained dates, how the CS knew the accused, how the CS knew the accused was trafficking in cocaine, details about the drug dealing, first hand detailed information of the accused in possession of cocaine and information connecting the accused to the De Boers address. My examination of the judicial summary and the two supplementary summaries reveal no inaccuracies.

[70] Page 6 of Appendix D provides details of police information obtained in September 2013 via Project RX. The Crown is not relying on this as part of the grounds to obtain the warrant. At page 9 of Appendix D, details of police surveillance on June 22, 2014 are set out, including the accused leaving 1 De Boers in the Jeep, circling back, returning to his building, then driving the Jeep to the underground lot where the Lexus was kept. D.C. Oliver indicates “Unfortunately there is limited footage of [N.J.] actions in the underground however one cannot rule out that he went to his grey 2007 Lexus, BSLF781.” A short time later, the accused is seen leaving the parking lot, returning and then leaving again to go to Crawford Street where the alleged hand-to-hand drug transaction was observed.

[71] D.C. Oliver deposed that the accused’s conduct was consistent with someone actively selling drugs who must constantly return to their stash, which he believed was in the grey Lexus, the Jeep Cherokee and the 1 De Boers residence.

[72] D.C. Oliver was cross-examined in the course of the application. The Crown did not oppose this and Crown and defence worked together to come up with parameters for questions which would not result in constant objections in relation to informant privilege.

[73] Some of the key points of the cross-examination included the following:

• D.C. Oliver conceded that the reference to the wrong address and car on page 1 of Appendix C was sloppy and careless. He was embarrassed when he discovered the error later.
• He agreed that reference to the accused’s youth record and fingerprint number suggested a degree of criminality, but he felt this information was part of his obligation to provide full and frank disclosure. He did not realize he required a court order to include the youth record details.
• While agreeing that drug dealers often used “stash houses” for their product, he was unaware of any surveillance having been done on the 525 Wilson Avenue address with respect to suspicious drug activity.
• There was no physical surveillance of the accused’s penthouse at De Boers for suspicious behaviour.
• D.C. Oliver’s reasonable belief that drugs would be at the De Boers residence was based in part on the CS and in part on his own surmise based on information given to him of the surveillance of the accused including the hand-to-hand drug transaction. He agreed that no one investigated the two women who allegedly bought the drugs, nor was the accused followed to see if he went back to 1 De Boers. D.C. Oliver agreed that if this information had been obtained it would have been important.
• D.C. Oliver agreed that when the accused was seen leaving De Boers, there is no information as to where he had been in the building and whether he had been in another condo unit. He agreed that the surveillance on June 22, 2014 could not confirm that the accused actually went to penthouse #3 during the time he was being observed.

Does the Redacted ITO Disclose Reasonable and Probable Grounds?

[74] The redacted ITO in this case could not support the issuance of a warrant. Save for the Step Six process, the judicial summaries and the cross-examination, there would be no choice for this court but to find a violation of the Applicant’s s. 8 rights under the Charter. A s. 24(2) analysis would be of no assistance. However, this is only the beginning of the required analysis.

Does the Redacted Material Provide Enough Evidence to Support the Warrant?

[75] The background and an analysis of the Step Six process was previously set out in this ruling. Therefore, I proceed directly to the requirements set out at page 1168 of Debot with respect to the questions to be asked when reviewing an ITO based on CS information. As per Debot, the three well-known questions to be asked on the review of a warrant based on an informant’s tip are: first, was the informant’s information compelling? Second, was the informant credible? Third, did the police corroborate the information provided by the informant? As is also well known, the test is to be considered in context of all of the circumstances and weakness in one area may be compensated by strength in another: see Debot at p. 1168.

[76] The CS information in this case can be considered as no less than compelling. Details were provided relating to the identification of the Applicant, knowledge of his trafficking and how the drugs were trafficked; timing, amounts and dates were provided as well as information connecting the Applicant to the De Boers address. The information is specific and based on first- hand knowledge.

[77] The defence raised concerns about the fact that there was no evidence of the accused in possession of drugs at the De Boers residence. However, I am satisfied that the information provided by the CS combined with the affiant’s belief is sufficient. If this part of the Debot test is weakened somewhat by the lack of a specific observation of the Applicant leaving his apartment with drugs it is more than made up by the compelling nature of the CS information as well as its credibility and the degree of corroboration, as will be set out below.

[78] Detailed information as provided by the CS is by its very nature more reliable than vague or unspecific references. Further, the direct observations of the CS are more compelling and reliable than rumour and tend to reduce the possibility of fabrication.

[79] As to credibility, a CS is an easy target when it comes to concerns about credibility. Informants live in a world of criminal activity in which one may think it is easy to “blur” lines when it comes to truth telling. However, in this case I am satisfied that the CS was reliable. First, Exhibit E reveals that the CS has a criminal record but not for crimes of dishonesty. The defence questions what type of crime may come under this category and that it is broader than one might think at first glance. However, any concerns about the definition of crimes of dishonesty is overcome by the listing of information the CS provided in the past, the results of the information and whether that information led to seizures. Additionally, the CS was not known to have provided misleading information in the past. It was not hidden from the Applicant that the CS was seeking something in return for the information. Indeed, it would be the rare CS who would seek nothing. In this court’s view, there was information upon which the issuing justice could evaluate the credibility of the CS.

[80] Finally, I find that the information provided by the CS was corroborated by the police insofar as possible. After receiving information connecting the Applicant to the De Boer’s address, the police set up surveillance which allowed them to identify the Lexus as belonging to the Applicant and the Jeep being his rental car. The police were able to follow the Applicant and view what was alleged to be a hand-to-hand drug deal with the Applicant receiving cash. Police were able to confirm that the Applicant had leased penthouse #3 at 1 De Boers Drive and that he had an underground parking space for his Lexus.

[81] The defence is critical of the police corroboration, highlighting that no further investigation was done concerning the 525 Wilson Avenue address as a possible stash house, no follow-up investigation was done in relation to the two women who allegedly purchased drugs from the Applicant, nor was he followed after the transaction to confirm he returned to De Boers. Finally, there was no surveillance corroborating that drugs were actually located at the De Boers address.

[82] The defence submits that one cannot infer that just because the Applicant lived at the De Boers address that he kept drugs there. This would lead to a floodgates argument that would make the search of people’s homes the rule as opposed to the exception.

[83] The Crown relies on R. v. Nguyen, 2015 ONCA 753. In that case, the Court drew a reasonable inference that because the accused kept drugs at one residence, one could reasonably infer she kept drugs at another residence to which she had access. I agree with the Crown on this point. The Applicant was seen removing what appeared to be drugs from his car in order to sell them. It could reasonably inferred that he also kept drugs at his home. His home was known to be at De Boers based on the CS information and police checks and surveillance.

[84] The ITO as a whole reveals that various information provided by the CS was corroborated by both police checks and surveillance. The source information identified the Applicant and connected him to the De Boers address. Police surveillance and investigation at De Boers and elsewhere were consistent with drug transactions. While there was not corroboration of every detail, there was sufficient corroboration to meet the test in Debot.

Is the Judicial Summary Sufficient for the Defence to Challenge the Affidavit?

[85] The drafting of judicial summaries is not an exercise in perfection. Crevier helpfully provides a list of the type of information which may be found in a summary, although the list is meant to be illustrative only (at para. 84).

[86] In the case at bar, there were effectively three judicial summaries. The initial and most lengthy summary tracked the ITO by page and paragraph and provided information as to the nature of the redacted information. After hearing submissions on the summary, and at the suggestion of the court, a supplementary summary was provided which gave more expansive information about reliability of the CS, the basis for the belief that drugs were at De Boers and the nature of specific and first-hand information given by the CS regarding the Applicant’s possession and trafficking of drugs. Finally, during the cross-examination of the affiant, a further supplementary judicial summary was provided; namely that the CS gave no specific information about the Applicant keeping drugs in his car and that police had no information from the Project RX investigation which would demonstrate that the CS information was false or misleading.

[87] In my view the process was appropriate and allowed the defence access to more information than simply the nature of the redactions, but achieved the necessary balance in the Step Six process. The defence argues that the summaries and the redacted ITO do not allow it to mount a realistic challenge to the warrant. Further, without any reference to drugs being observed at the De Boers residence, no warrant could be obtained for the address.

[88] However, the judicial summaries make it clear that the Applicant was observed in the possession of and trafficking cocaine over a period of time. There was no information that drugs were stored at any other location (as there was in Nguyen). The Applicant was observed coming in and out of the address, going to his own parking spot, and driving the Jeep to and from the address. Police confirmed with building management that he leased an apartment there. He was seen conducting a hand-to-hand drug transaction very close in time to the issuance of the warrant.

[89] At all times, first principles with respect to the Step Six process must be kept in mind. That is, to what degree must the right to full answer and defence be “attenuated” in order to take into account the principles of law enforcement and informant privilege? This question has been considered in the context of the s. 7 challenge earlier in this ruling. However, it must be repeated that the right to make full answer and defence in the context of an evidentiary hearing with competing interests at play will be less than the fully formed right at trial.

[90] Finally, are the judicial summaries in this case so deficient as to tip the balance against the Crown? In my view, no. The defence is entitled to know the basis on which the warrant was granted and the judicial summaries provide this answer. The summaries by their very nature cannot answer all of the defence questions, but they do confirm the salient information that a person identified as the accused, who lived at 1 De Boers Drive in penthouse #3 was seen in possession of and trafficking cocaine on more than one occasion.

What, if any, is the Effect of the Errors in the Redacted ITO?

[91] In cross-examination the following errors in the ITO were noted by the defence:

• At page 1 of Appendix C, there is a reference to a request to search 181 Village Green Square, #1221 and a grey 2010 Honda Civic, license plate BHMT431. D.C. Oliver agreed that this was an error on his part and that he did not notice it when reviewing his affidavit.
• At page 8 of Appendix C paragraph 1 under section VI, D.C. Oliver makes reference to cocaine being stored at the De Boers Drive residence, the grey Lexus “or” in the Jeep Cherokee. At page 9 of the Appendix C paragraph 1 under section VIII, D.C. Oliver makes reference to his belief that the Applicant has cocaine stored at the De Boers Drive residence “and” in his vehicles (the Lexus and the Jeep). It was suggested to him that he should have put “and/or” in both references. It was further suggested to him that the reason he used “or” was because he was not sure where the drugs were and that he had no reasonable grounds to believe the drugs were in the house. D.C. Oliver testified that this was an oversight and that he should have used “and/or” in both references.
• At page 5 of Appendix C, sub paragraphs (h) and (i) reference surveillance reports on 525 Wilson Avenue dated November 7 and 14, 2014. D.C. Oliver conceded that the surveillance reports were dated November 7 and 14, 2013 as they could not have post-dated the warrant. He agreed this was also an oversight on his part.

[92] The defence does not contend that these errors were intended to mislead the issuing Justice. Rather, that the court should disassociate itself from such blatant sloppiness. The carelessness in the affidavit is highlighted by D.C. Oliver’s wavering from saying that cocaine was in one of the three locations (the “or”) reference to saying that cocaine was in all three places (the “and”). These inconsistencies suggest that the police were acting on a mere hunch as opposed to having reasonable grounds.

[93] The task for this court is to determine whether the warrant could have issued in the face of the misleading or inconsistent information. The obvious errors (the surveillance year recorded as 2014 instead of 2013 and the reference to a different address and car) could have been corrected through the amplification process if requested by the Crown. No such request was made. This is likely because it is clear on their face that these were inadvertent errors, although undeniably they entail a degree of sloppiness on the part of the officer. As such, amplification is not necessary.

[94] The more difficult consideration is whether the inconsistent use of “and” and “or” affects whether there were reasonable grounds to suspect cocaine was in the residence or the vehicles. In my view, it does not. In my view, the ITO read as whole is not affected by this inconsistency. That is, it would still have been open to the issuing justice to authorize the warrant in the face of this inconsistent use of conjunctive words.

Should the Evidence be Excluded Pursuant to [s. 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[95] As there was no violation of s. 8, a Grant analysis is not required. However, if I am wrong and such a violation is found to exist, I provide below a brief analysis of why a consideration of the factors in Grant would not result in any exclusion of evidence.

[96] In R. v. Grant, 2009 SCC 32, the Supreme Court of Canada redefined the s. 24(2) analysis. The focus of Grant entails a balancing of Charter breaches against maintaining confidence in the administration of justice. At para. 68 of Grant, the Court specified that

... s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence.

[97] The well-known factors to be considered in Grant are as follows:

• The seriousness of the Charter-infringing conduct;
• The impact of the breach on the Charter-protected interests of the accused; and
• Society’s interest in the adjudication of cases on their merits.

[98] If any Charter-infringing conduct occurred in this case, it cannot be described as serious. First, the police acted in good faith. There were errors in the ITO which were conceded to be careless but insufficiently egregious to affect the test required to issue the warrant.

[99] There is no doubt that the search of the Applicant’s house had a severe impact on his Charter protected rights. Such a search is at the high end of the scale with respect to individual privacy interests.

[100] As for the final part of the Grant test, it cannot be ignored that a large quantity of drugs was seized in this case. If it is proven that the Applicant possessed 800 grams of cocaine for the purpose of trafficking, he could face a jail sentence of seven years. It is this court’s view that society’s interest in the adjudication of this case on its merits outweighs the less serious nature of the state conduct. Therefore, the s. 24(2) analysis would result in the admission of the seized drugs and cash.

Madam Justice C.A. Gilmore

Released: February 3, 2017

CITATION: R. v. N.J., 2017 ONSC 857

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

N.J.

Defendant/Applicant

Ruling

Madam Justice C.A. Gilmore

Released: February 3, 2017

[^1]: Factum of the Defence, at para. 27.