Overview

[1] Toronto Police Services (TPS) received confidential information from a confidential informant (CI) stating that Christopher Brady was in possession of a firearm.

[2] Following receipt of the CI information, the police, including Detective Constables Fazal Haffejee (the “Affiant”) and Mike O’Connor (“DC O’Connor”), conducted an investigation that included surveillance of Christopher Brady’s residence on two occasions.

[3] On April 19, 2015, the Affiant submitted an Information to Obtain a Search Warrant (the “ITO”), seeking warrants to search Christopher Brady’s vehicle and residential home located at 19 Ballantyne Drive, Ajax (the “Residence”).

[4] An authorizing Justice granted both warrants (the “Warrants”) based on the ITO. Christopher Brady was the Warrants’ target; their underlying grounds, as the ITO sets out, are based primarily on the CI-obtained information.

[5] On April 19, 2015, the police executed the Warrants and arrested Christopher Brady and his brother Walter Brady with a number of firearms offences, possession of cocaine and possession of other contraband.

The Defendants’ Pre-Trial Applications

[6] Christopher and Walter Brady (the “Applicants”) brought an application challenging the constitutional validity of the search conducted at the Residence, where police located the items.

[7] The Applicants submit that the search of the Residence violated their rights under s. 8 of the Charter. As a result, any evidence obtained from the search should be excluded pursuant to s. 24(2).

[8] The Applicants submit that the following three preliminary steps must be taken to assess the Warrants’ sufficiency:

a. First, the Applicants seek an order for relevant disclosure requiring the Crown to produce certain requested items, including the Affiant’s complete investigative file in relation to the Warrants, and—once disclosure is received—they seek leave to amend or expand their applications as required;

b. Second, the Applicants request that the Court embark upon steps two, three and four of the procedure set out in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421. In this regard, the Applicants request that:

i. the Court conduct a judicial review of the Crown summary and provide disclosure of a judicial summary sufficient for the Applicants to make full answer and defence, pursuant to Garofoli’s step two; and

ii. the Court conduct a judicial review of the Crown’s redactions to the ITO and provide disclosure of a judicially finalized version of the redacted ITO, pursuant to Garofoli’s steps three and four; and

c. Third, the Applicants seek leave to cross-examine the ITO’s Affiant. The Applicants submit that cross-examination on certain areas will provide information tending to discredit the preconditions for the Warrants’ issuance.

[9] Following completion of any cross-examination, the Applicants seek an order quashing the Warrant and excluding the evidence seized pursuant to ss. 8 and 24(2) of the Charter on the following grounds:

a. The ITO does not contain sufficient information to establish reasonable and probable grounds on which the authorizing Justice could have issued the Warrants;

b. The CI information was insufficiently corroborated for the authorizing Justice to rely on it in authorizing the Warrants; and

c. The CI provided no credible or compelling information regarding the existence of a firearm at the Residence.

[10] Last but not least, if the s. 8 application is unsuccessful and/or the evidence is not excluded pursuant to s. 24(2) of the Charter, the Applicants seek a stay of the proceedings or such other remedy as may be just pursuant to ss. 7 and 24(1) of the Charter.

The Crown’s Pre-trial Application

[11] The Crown denies the Applicants’ entitlement to their relief claimed, but conceded the following points:

a. The Applicants are entitled to cross-examine the Affiant about the entry contained in the ITO’s page 10, paragraph 7 which reads “I noted from the most recent occurrence (GO #2015-33650)…” and ask what the Affiant meant by “most recent occurrence?”; and

b. The ITO as edited cannot support issuance and as such the Crown has brought an application to proceed directly to Garofoli’s step six. The Crown submits that the Court will be positioned to consider the excised portions of the ITO, once satisfied the accused are sufficiently aware of the nature of the redactions. The court need only to determine if any basis exists upon which the Warrants could have been issued.

[12] The Crown seeks to proceed to Garofoli’s step six and provided the Court with the following at their application’s commencement:

a. An un-redacted copy of the ITO, highlighting where redactions were made. This document is to be made a sealed exhibit;

b. A draft of the judicial summary with a column outlining the Crown’s position on why more cannot be disclosed. This document is to be made a sealed exhibit; and

c. A redacted copy of the ITO.

[13] The Crown provided the Applicants with a copy of the draft judicial summary minus the explanation column. The Crown argues that their draft of the judicial summary was adequate as it provided the Applicants with the general nature of the information behind the redactions in order for them to challenge the Warrants.

[14] The Crown submits that, if the Court wishes to provide further edits, it will need to rule on the procedure for crafting the judicial summary with the Crown.

The Proceedings to Date

[15] This matter came before me on February 26, 2018. This matter—including determination of all pre-trial applications, the jury selection with a Parks challenge, and the trial’s hearing by the jury—was scheduled to be completed within three weeks.

[16] Within this timeframe, the pre-trial applications were to be heard and determined within the first week. On review of the application records, factums, and books of authorities, it was apparent that the pre-trial applications required more time than was scheduled.

[17] I invited initial submissions from the Crown and the Applicants as to the proposed order of the applications’ argument. Following those, I determined that the applications would proceed in the manner contemplated by the Applicants, namely:

a. Disclosure;

b. Garofoli’s step two;

c. Garofoli’s step three;

d. Garofoli’s step four;

e. Leave to cross-examine;

f. Argument re Garofoli’s step six;

g. Sufficiency of ITO (ss. 8 and 24(2) of the Charter); and

h. Sections 7 and 24(1) of the Charter.

[18] Following my determination of the applications’ order, the Applicants argued the disclosure application and the Crown responded.

Disclosure Application

[19] In oral reasons regarding the disclosure application, I ordered the Crown to disclose those items requested by the Applicants forming part of the investigative file which had not yet been disclosed. If the Affiant could not obtain or recreate the documents relied upon in preparing the ITO, I ordered the Affiant to provide an updated “will-say” statement. I also ordered that the TPS protocol relating to the preparation of warrants be produced to the Applicants, including protocol 05-21 relating to firearms.

[20] Crown counsel diligently attended to gathering the disclosure and production ordered. As of today, the Crown appears to have satisfied the disclosure order, save and except those documents that are no longer available. It also appears that production of the 2015 version of the 04-35 Memo remains outstanding, although efforts were made to obtain it.

Application Regarding Garofoli’s Steps Two, Three, and Four

[21] On February 27, 2018, the Applicants and Crown made submissions concerning the sufficiency of the Crown summary and Crown redactions to the ITO, pursuant to Garofoli’s steps two, three, and four.

[22] Following those submissions, I granted the Applicants’ request in my oral reasons and I embarked on the following:

a. Conducting a judicial review of the Crown summary, and providing disclosure of a judicial summary pursuant to Garofoli’s step two;

b. Conducting a judicial review of the Crown’s ITO redactions, and providing disclosure of a judicially finalized version of the redacted ITO, pursuant to Garofoli’s steps three and four.

[23] The judicial review of the Crown summary and the Crown’s ITO redactions were undertaken over a period of several days. I reviewed the initial Crown summary and Crown redactions, and I prepared and submitted a document detailing proposed revisions to the Crown summary and the Crown redactions for the Crown’s review.

[24] The Crown provided a written response to my proposed revisions. The exchange of my proposed summaries and the Crown’s response was conducted in open court, utilizing sealed packages. Following exchange of the sealed envelopes and review of the contents by the Crown and/or the Court, submissions were made by the Crown and/or the Court regarding the proposed revisions and/or responses in open court. Where a response by either the Court or the Crown could not be made in a manner that would ensure protection of the CI’s identity, these submissions were made in writing through the exchange of sealed envelopes.

[25] All documents exchanged between the Court and Crown—including proposed revisions to the summary and ITO and any written submissions or responses exchanged—were made sealed lettered exhibits to the pre-trial applications.

[26] Following numerous exchanges between the Court and Crown, I was satisfied with the proposed revisions to the Crown’s summary and ITO redactions.

[27] I prepared a judicial summary titled “Judicial Summary Provided to Defence #1” (the “First Summary”). The First Summary was provided to the Applicants for review and made an exhibit to the pre-trial applications.

[28] The Crown prepared the revised ITO with the un-redacted edits as the Court and Crown agreed. This document was provided to the Applicants for review and made an exhibit to the pre-trial applications.

[29] Following the Applicant’s receipt of the First Summary and revised ITO, the Applicants made further submissions about the sufficiency of the First Summary and the ITO’s redactions.

[30] I undertook a review of the First Summary and revised ITO in response to the Applicants’ submissions.

[31] The procedure for the review of the First Summary and revised ITO mirrored the procedure outlined above.

[32] After reviewing the First Summary and revised ITO, I submitted to the Crown a document detailing further proposed revisions to both the First Summary and ITO. The Crown provided a written response regarding each; the proposals were exchanged in open court utilizing sealed packages. The Crown made submissions regarding the revisions in open court. The Court responded to the Crown’s submissions in open court. Where a response or submission by either the Court or the Crown could not be made in a manner that ensured protection of the CI’s identity, these submissions and/or responses were made in writing through the exchange of sealed envelopes.

[33] Following this further exchange of documents, and after another draft summary, I completed the latest version to date of the judicial summary, titled Judicial Summary Provided to Defence #3 (the “Third Summary”). A copy of the Third Summary was provided to the Applicants and made an exhibit to the pre-trial applications.

[34] The Crown finalized a revised ITO with further edits as the Court and Crown agreed. A copy of the revised ITO was provided to the Applicants and made an exhibit to the pre-trial applications.

[35] The hearing and final determination of Garofoli’s step two, three, and four was completed on March 6, 2018. I delivered my reasons for decision regarding the judicial editing process on an ongoing basis throughout the editing process.

Application for Leave to Cross-Examine the ITO’s Affiant

[36] This brings us to the next and current step in these proceedings: the Applicants seek leave to cross-examine the ITO’s Affiant. The Applicants submit that cross-examination on the following areas will provide information tending to discredit the preconditions for the Warrants’ issuance:

a. The Affiant’s failure to maintain a proper investigative file or notes;

b. Misstatements in the ITO as follows:

i. DC O’Connor’s surveillance;

ii. The GO Report #2015-33650 (the “GO Report”) reference to Christopher Brady;

iii. The GO Report’s suggestion that Christopher Brady is an accused; and

iv. Reference to a townhouse complex in the grounds justifying a night entry request.

c. Omissions in the ITO as follows:

i. Brady & Brady Home Renovations;

ii. Whether the CI’s full criminal record was included, including crimes of dishonesty;

d. Unsubstantiated claims and editorial comments in the ITO as follows:

i. Reference to drug dealing;

ii. Where guns are typically located;

iii. Guns as prized possessions.

e. The Existence of reasonable and probable grounds:

i. Corroboration

Failure to investigate animus between the CI and Christopher Brady;
Only innocent details were corroborated; and
Reliance on a “show-up lineup”.

ii. The CI’s reliability

The 04-35 Memo reference to three levels of sources;
The promise of confidentiality and caution to the CI.

f. No basis for the night entry request.

Issues on Leave to Cross-Examine the Affiant

[37] The issues are as follows:

a. Should leave be granted to the Applicants to allow the Affiant’s cross-examination respecting the ITO he swore in support of the Warrants; and

b. If leave to cross-examine is granted, upon what terms and conditions should it be permitted?

The Law

[38] The test for leave to cross-examine was set out by Sopinka J. of the Supreme Court of Canada in Garofoli at p. 1465 (reaffirmed by Charron J. in R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 at para. 10):

Leave must be obtained to cross-examine. The granting of leave must be left to the exercise of the discretion of the trial judge. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as, for example, the existence of reasonable and probable grounds.

When permitted, the cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted. The discretion of the trial judge should not be interfered with on appeal except in cases in which it has not been judicially exercised. While leave to cross-examine is not the general rule, it is justified in these circumstances in order to prevent an abuse of what is essentially a ruling on the admissibility of evidence [emphasis added].

[39] The Supreme Court of Canada held in Lising at para. 3 that while “[t]here is no question that the right to cross-examine is of fundamental significance to the criminal trial process … it is neither unlimited nor absolute.”

[40] The Ontario Court of Appeal, in R. v. Green, 2015 ONCA 579, [2015] O.J. No. 4428, held that leave to cross-examine should only be granted where the applicants demonstrate a basis for a claim that the cross-examination will elicit testimony to discredit the existence of reasonable and probable grounds for issuance of the warrant. Motions to cross-examine usually target specific factual allegations central to the existence of reasonable and probable grounds, but may also advance a more expansive ground such as an attack on the entire ITO’s credibility.

[41] Leave should not be granted to cross-examine on factors relevant to the exclusion of evidence under s. 24(2), at least where those factors are not relevant to the impugned warrant’s validity.

[42] It should be remembered that a Garofoli review hearing is simply an evidentiary hearing to determine admissibility of relevant evidence about the offence obtained pursuant to a presumptively valid court order. The reviewing judge on a Garofoli hearing only asks if there was any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed.

[43] For example, in this case, the reviewing judge must determine if a basis existed for the authorizing judge to be satisfied that:

a. The Affiant had reasonable grounds for believing and did believe that an offence has been or will be committed; and

b. The Affiant had reasonable grounds for believing and did believe that evidence of an offence would be found at the locations subject to the Warrants (particularly here, the Residence).

[44] With respect to the night entry request requirement, the reviewing judge must determine if a basis existed for the authorizing judge to be satisfied that:

a. Reasonable grounds existed for the search to be executed at night;

b. Those reasonable grounds are included in the ITO; and

c. The Warrants authorize that it be executed at night.

[45] At the hearing to obtain leave to cross-examine, the judge does not determine the ultimate Garofoli issue; however, it is important that the judge keep the standard of review in mind when determining if the applicants demonstrated a basis for the cross-examination. There is no point in permitting cross-examination of an affiant if there is no reasonable likelihood that it will impact on the question of admissibility of the evidence (Lising, at paras. 30-31).

[46] The Garofoli approach to cross-examination is consistent with Charter principles. Under Garofoli, applicants must show a reasonable likelihood that cross-examination of the affiant will elicit testimony of probative value to the issue the reviewing judge must decide before leave may be given to cross-examine. The standard is grounded on two basic principles of evidence, relevance and materiality. It also reflects concerns about the prolixity of proceedings and—in the present case—the need to protect informants’ identities.

[47] The Garofoli threshold test does not infringe the right to make full answer and defence. The test is nothing more than a means of ensuring that proceedings remain focused and on track when challenges are initiated under the Charter’s section 8. There is no constitutional right to adduce irrelevant or immaterial evidence.

[48] According to World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, applicants must show that cross-examination is reasonably likely to be useful on the application. Cross-examination will only be of value if it has the potential to show that the material information relied upon or omitted by the informant was false or misleading and that the affiant knew or ought to have known that this was so. If cross-examination is incapable of supporting such an inference, it is irrelevant on a Garofoli application.

[49] According to R. v. Shivrattan, 2017 ONCA 23, 35 C.R. (7th) 143, the ultimate reliability of information contained in the ITO is not in issue on a motion to cross-examine its affiant. The trial judge is only concerned with whether there is a reasonable likelihood that the proposed cross-examination would help determine if grounds existed for the warrant’s issuance. The defence is not required to show that the cross-examination will succeed in demonstrating that unreliability. Further, any cross-examination is subject to the overriding need to protect the identity of the confidential informant.

Analysis

a. The Affiant’s failure to maintain a proper investigative file or notes

[50] The Applicant seeks leave to cross-examine the Affiant on his alleged failure to maintain a proper investigative file or notes.

[51] The cross-examination is sought with respect to the Affiant’s duty to make full, frank and fair disclosure. In particular, it is submitted that cross-examination is reasonably likely to be useful on the application because it has the potential to show that the alleged failure to maintain the file was a deliberate act intended to frustrate a legitimate review of his affidavit and/or was the result of gross carelessness.

[52] In the circumstances, I am content to allow limited cross-examination in this area restricted to specific questions about whether the alleged failure to maintain the file was a deliberate act intended to frustrate a legitimate review of his affidavit, whether it was the result of carelessness or misadventure, an explanation of the retention and recovery efforts to obtain the investigative file in this case, whether the Affiant’s procedure in maintaining his file this case differed from his usual procedure, and if it differed, how and why. However, cross-examination in this area shall not evolve into an examination in chief about the Affiant’s training, general file preparation and maintenance of files or his experience generally.

b. Misstatements in the ITO

i. DC O’Connor’s surveillance

[53] The Applicants seek to cross-examine the Affiant on the difference between DC O’Connor’s self-recorded notes, compared to the statements the Affiant attributed to DC O’Connor contained in the ITO’s page 10, paragraphs 8 and 10. The Applicants claim that cross-examination on this area is necessary to test the Affiant’s duty to make full, fair and frank disclosure, and otherwise goes to corroboration and reasonable grounds for the Warrants’ issuance.

[54] Cross-examination will only be of value if it has the potential to show that the material information relied upon or omitted by the informant was false or misleading and that the Affiant knew or ought to have known that this was so. If cross-examination cannot support such an inference, it is irrelevant on a Garofoli application.

[55] Having reviewed DC O’Connor’s notes and the Affiant’s statements attributed to DC O’Connor, I find no potential to show that the material information relied upon or omitted (the colour and make of the car) can support an inference that it is false or misleading or that the Affiant knew or ought to have known that this was so. As such cross-examination on this area is denied.

ii. The GO Report reference to Christopher Brady

[56] The Applicants seek to cross-examine the Affiant on the ITO’s page 10, paragraph 7 which references the GO Report that “noted” that Christopher Brady was “approximately” 5’11” and weighed “about” 140 pounds. They wish to cross-examine about whether that reference refers to the document contained at Tab 4 of the Applicants’ Leave to Cross-Examine Compendium (the “Compendium”), if that document was recreated after the event documented in the GO Report document contained at Tab 3 of the Compendium, and why and what the Affiant is referencing in the ITO’s page 10, paragraph 7 about approximate height and weight when the document at Tab 4 lists a specific height and weight.

[57] The Applicants claim that this area goes to full, frank, and fair disclosure, and to reasonable and probable grounds relating to issuance of the Warrants and corroboration.

[58] I am of the opinion that cross-examination of the specific items referenced at paragraph 56 above has the potential to show that the material information relied upon or omitted by the informant was false or misleading and that the Affiant knew or ought to have known that this was so. As such, cross-examination shall be allowed on this area restricted on the restricted basis as outlined at paragraph 56 with the addition of the Crown’s concession that the Applicants can ask what the Affiant meant by the “most recent occurrence”.

iii. The GO Report’s suggestion that Christopher Brady is an accused

[59] The Applicants seek to cross-examine the Affiant on why the ITO’s page 10, paragraph 7 was drafted in a manner that implies Christopher Brady was a suspect or an offender, when the occurrence report is actually about Walter Brady and his brother being assaulted after acting as good samaritans. The Applicants claim that the cross-examination goes to full, frank, and fair disclosure.

[60] This request is denied. The Applicants must show that cross-examination is reasonably likely to be useful on the application. Cross-examination will only be of value if it has the potential to show that the material information relied upon or omitted by the informant was false or misleading and that the affiant knew or ought to have known that this was so. If cross-examination incapable of supporting such an inference, it is irrelevant on a Garofoli application. The ITO’s page 10, paragraph 7 notes an occurrence report referencing Christopher Brady. Paragraph 7 nowhere suggests that Christopher Brady is an accused and there exists no potential to show that the material information relied upon or omitted was false or misleading and that the Affiant knew or ought to have known that this was so.

iv. Reference to a townhouse complex in the grounds justifying a night entry search

[61] The ITO’s page 12 contains information detailing the night entry request. The Residence is described here as a “townhouse complex that has a history of being unfriendly to police”. The Applicants seek cross-examination with reference to the Affiant’s duty to make full, fair and frank disclosure. The Applicants assert that the Residence subject to the warranted search is a freehold residence—not a townhouse with any history of being unfriendly to police. The Applicants seek to determine whether the statement was intentionally made to mislead, a misstatement, or sloppy draftsmanship.

[62] Cross-examination is granted as to the basis of whether reasonable and probable grounds existed to issue the night entry request.

c. Omissions in the ITO

i. Brady & Brady Home Improvements

[63] The Applicants seek leave to cross-examine on the Affiant’s failure to disclose that there was a registered business at the premises which goes to full, fair and frank disclosure.

[64] Cross-examination on this area is denied. Tab 11 of the Compendium includes a copy of the “investigative file” disclosed to the Applicants. The investigative file contains three documents, one of which is a map pinpointing the Residence’s address with the notation “Brady & Brady Home Improvement and Decking”, “Construction Company” (“Brady & Brady”).

[65] If this information about Brady & Brady was not provided to the issuing justice or disclosed by the ITO, the Applicants can argue that failure to include the evidence goes to full, fair and frank disclosure. There is no need to cross-examine on this point.

ii. Whether the CI’s full criminal record was included, including crimes of dishonesty

[66] Cross-examination on this area is denied. The Third Summary at Edit #19 states “Criminal History: The edit reveals the entire criminal history or lack thereof of the CI including whether or not the CI has any convictions for offences against the administration of justice [emphasis added].” The question has been answered.

d. Unsubstantiated Claims and Editorial comments in the ITO

i. Reference to drug dealing; b. where guns are typically located; and c. guns as prized possessions

[67] The Applicants’ proposed areas of cross-examination assert that the ITO’s page 11 references a “Mr. Brady” as a drug dealer and contains prejudicial statements concerning where guns are typically located and guns as prized possessions. Although it is conceded that no “Mr. Brady” is named on page 11, the Applicants allege that such a reference can be inferred.

[68] Cross-examination on this area is denied. Page 11 makes no mention of Christopher Brady, Walter, or any Mr. Brady as being a drug dealer. The information referenced is based on the Affiant’s training and experience as an officer. This request for cross-examination is akin to a “fishing expedition” and does not conform to the narrow test required for cross-examination on Garofoli applications.

e. The Existence of Reasonable and Probable Grounds

i. Corroboration

1. Failure to investigate animus between the CI and Christopher Brady

[69] The Applicants seek to cross-examine on the failure to investigate animus between the CI and Christopher Brady. They argue that animus goes to the existence of reasonable and probable grounds for the Warrants’ issuance.

[70] Cross-examination on this area is denied. There is no need to establish this information and any cross-examination would be irrelevant.

2. Only innocent details were corroborated

[71] The Applicants seek to cross-examine on the failure to corroborate evidence of criminality.

[72] Cross-examination on this area is denied. There is no requirement to corroborate evidence of criminality and any cross-examination would be irrelevant.

3. Reliance on a “show-up lineup”

[73] The Applicants allege that the Affiant relied on a “show-up lineup” noted at page 13, paragraph 16 of the ITO and that this amounted to identification of Christopher Brady that required corroboration.

[74] Cross-examination on this area is denied. The Affiant did not identify Christopher Brady through a show-up lineup. The ITO at page 13 details the following facts:

a. The CI knows a “Chris” Brady (paragraph 1);

b. The CI provided Chris Brady’s residential address (paragraphs 2 and 4);

c. The CI described Chris Brady including his height, weight, and the fact that he has a “sleeve” tattoo (paragraph 4);

d. The CI provided a description of Chris Brady’s vehicle, including make, colour and model (paragraph 7); and

e. The CI added that Chris Brady also owns a motorcycle (paragraph 8).

[75] The reference at paragraph 16 that the CI was shown Christopher Brady’s photograph was not evidence of “identification” but rather confirmed that the person known and described by the CI was the same person in the photograph. Cross-examination on this point would be irrelevant. I find that there is no basis that the proposed cross-examination on this issue will elicit testimony tending to discredit the existence of one of the preconditions to the authorization.

ii. The CI’s Reliability

1. The 04-35 Memo reference to three levels of sources

[76] The Applicants seek to cross-examine the Affiant on the 04-35 Memo to determine which “level” the CI would qualify as a source.

[77] Cross-examination on this point is denied. It would be akin to an examination for discovery and otherwise would be an irrelevant fishing expedition.

2. The promise of confidentiality and caution to the CI.

[78] The Applicants seek to cross-examine the Affiant on the ITO’s page 10 references to a promise of confidentiality and a caution to the CI. The Applicants assert that the Affiant did not meet directly with the CI so the information must have come from the handler, if it was provided. The Applicants claim that such information is not contained in the “handler’s notes” and seek to cross-examine on the basis for the Affiant’s claims on the grounds of full, fair and frank disclosure.

[79] Cross-examination on this ground is denied. The Applicants do not dispute the fact that the person who provided the information that forms the ITO’s basis was a confidential informant. The handler’s notes form no part of the investigative file and are not generally disclosed. Further, if the handler’s notes are disclosed they are usually heavily redacted. The Affiant is entitled to rely upon the advice of other officers.

[80] Justice Dambrot, in R. v. Riley, [2008] O.J. No. 4893 (Ont. S.C.) at para. 46, indicated that where no basis exists for believing that errors and/or omissions were made in order to mislead the authorizing judge there is no ground for cross-examination. In the present case I find that there are no grounds to allow cross-examination on this area.

f. No Basis for the night entry request

[81] This area of cross-examination has already been covered in paragraph 61 above.

[82] Cross-examination is permitted on the ITO’s page 12 restricted to the section pertaining to the night entry request.

Justice Susan J. Woodley

R. v. Brady and Brady, 2018 ONSC 1605

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Walter Brady and Christopher Brady

REASONS FOR JUDGMENT

Justice Susan J. Woodley

Released: March 8, 2018

R. v. Brady and Brady, 2018 ONSC 1605

Case Summary

Overview

The Defendants’ Pre-Trial Applications

The Crown’s Pre-trial Application

The Proceedings to Date

Disclosure Application

Application Regarding Garofoli’s Steps Two, Three, and Four

Application for Leave to Cross-Examine the ITO’s Affiant

Issues on Leave to Cross-Examine the Affiant

The Law

Analysis

a. The Affiant’s failure to maintain a proper investigative file or notes

b. Misstatements in the ITO

i. DC O’Connor’s surveillance

ii. The GO Report reference to Christopher Brady

iii. The GO Report’s suggestion that Christopher Brady is an accused

iv. Reference to a townhouse complex in the grounds justifying a night entry search

c. Omissions in the ITO

i. Brady & Brady Home Improvements

ii. Whether the CI’s full criminal record was included, including crimes of dishonesty

d. Unsubstantiated Claims and Editorial comments in the ITO

i. Reference to drug dealing; b. where guns are typically located; and c. guns as prized possessions

e. The Existence of Reasonable and Probable Grounds

i. Corroboration

1. Failure to investigate animus between the CI and Christopher Brady

2. Only innocent details were corroborated

3. Reliance on a “show-up lineup”

ii. The CI’s Reliability

1. The 04-35 Memo reference to three levels of sources

2. The promise of confidentiality and caution to the CI.

f. No Basis for the night entry request

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 1