Her Majesty the Queen v. Demetre Hibbert and Raquel Williams
Court File No.: 818/17 Date: 2019-03-18 Superior Court of Justice – Ontario
Between: Her Majesty the Queen S. Stackhouse, for the Crown
And: Demetre Hibbert and Raquel Williams M. Luft for Demetre Hibbert and M. Salih for Raquel Williams
Heard: February 15, 2019
Ruling
Re: Disclosure of Handler’s Notes of Confidential Informant for Step Five of the Garofoli Process
Before: Dennison J.
Overview
[1] The applicants brought an application pursuant to s. 8 of the Charter to challenge the issuance of three search warrants. They seek to have the firearm and drugs that were seized pursuant to two of those warrants excluded at their trial pursuant to s. 24(2) of the Charter.
[2] The search warrants in this case rely, in part, on information provided by a Confidential Informant (CI) in the body of the Information to Obtain (ITO) as well as in Appendix “D”. This information was redacted in the ITO disclosed to the applicants.
[3] I was appointed as case management judge pursuant to s. 551.1 of the Criminal Code, R.S.C., 1985, c. C-46 for the purpose of the pre-trial Charter applications in this case. In an earlier ruling, I ordered that the applicants be provided with a judicial summary of the excised information allowing them to appreciate the nature of the redactions pursuant to step two of the Garofoli process.
[4] The Crown seeks to have the warrants upheld under step five of the Garofoli process. Under step five, the Crown is not relying on the redacted information contained in the ITO to uphold the validity of the warrants but rather argues that based on the unredacted information, the issuing justice could have issued the warrants.
[5] The applicants seek disclosure of the handler’s notes that contain information from the CI. They submit that although the Crown is not relying upon any information provided by the CI, to support the issuance of the warrants, the handler’s notes are relevant. If the notes reveal a material omission or contain misleading information, that was done deliberately or recklessly they may argue that even if there is a sufficient basis to grant the search warrants, the conduct of the police was subversive and the warrants should nonetheless be set aside.
Facts
[6] Mr. Hibbert was believed to be the shooter in a drive by shooting on December 2, 2016.
[7] On March 9, 2017, search warrants were issued to search Mr. Hibbert’s BMW vehicle, the residence at unit 201, 8 Newhaven Manner, Brampton and unit 107, 7340 Goreway Drive, Mississauga. The items to be searched for were the gun, ammunition, a white spring jacket with dark designs all over it and a blue hooded sweatshirt.
[8] PC Sherwin swore the ITO in support of the issuance of the warrants. As noted, the ITO contained information from a CI. This information was largely contained in Appendix “D” to the ITO. There were also some references to CI information in the body of the ITO. The CI information did not form the bulk of the information in the ITO. There was information received from a person who witnessed the shooting and identified the shooter as “Meechie.” There was also information that police conducted further investigation and believed that “Meechie” was Mr. Hibbert. From this information police received information about the BMW associated to Mr. Hibbert. The ITO also relied upon a surveillance tape from a Tim Horton’s the day of the shooting that showed the victim’s car directly prior to the shooting beside another vehicle with the passenger window down. It appeared like there was some sort of communication between the vehicles. The affiant compared the vehicle in the surveillance tape and was of the view that this was Mr. Hibbert’s vehicle. The ITO also contained information regarding surveillance of Mr. Hibbert that the affiant relied upon in support of his grounds to obtain the warrants for the residence.
[9] At stage two of the Garofoli application, the applicants submitted that they required a judicial summary of Appendix “D” and the other redacted information in the ITO to appreciate the nature of the deletions. I ordered that a judicial summary be prepared for this purpose. An in camera hearing took place where the handler was questioned about the judicial summary. After hearing his evidence, revisions were made to the judicial summary and it was provided to the applicants.
[10] Crown counsel also disclosed an email dated December 4, 2016 that contained a draft Appendix “D”. This email was sent from PC Angevine, who was the handler of the CI to PC Sherwin, the affiant of the ITO. As well, there was an email from PC Angevine dated March 4, 2017 to PC Sherwin that contained an updated draft Appendix “D”.
[11] It was agreed by the parties that a judicial summary would be prepared and disclosed to the applicants that outlined the differences, if any, between the two drafts and the final version of Appendix “D”.
[12] I prepared the judicial summary. I then heard submissions from Crown counsel in camera regarding concerns about identifying the CI. The judicial summary was then provided to the applicants. The final version of Appendix “D” in the ITO did not contain all of the information that was provided in the draft Appendix “D”.
[13] I was then asked to clarify if there were any inconsistencies in the information provided by the CI between the drafts of Appendix “D”. It was disclosed to counsel for the applicants that there were no material inconsistencies.
[14] I was also advised that PC Angevine was asked a question about Appendix “D”. I was not told what the question was, but his answer to the question was that “I reviewed the edits made by Sherwin in person and approved the edits prior to Sherwin submitting the ITO” to the issuing justice.
Position of the Parties
Applicants
[15] The applicants seek disclosure of the handler’s notes of the information he received from the CI in their effort to challenge the issuance of the search warrants. They submit the handler is a co-affiant because he drafted Appendix “D” to the ITO and he reviewed the revised Appendix “D” to the affidavit and “approved” it before it was put before the issuing justice. In the alternative, they argue disclosure should be provided because they have demonstrated that there is a reasonable possibility that the notes will be relevant to an issue related to the issuance of the warrants.
[16] The applicants recognize that the Crown is seeking to uphold the warrants under step five of the Garofoli process, as opposed to step six, and as such the Crown is not relying on Appendix “D”. They nonetheless submit that they are entitled to argue that the information contained in Appendix “D” contains material omissions or falsehoods that were deliberate or reckless. This would allow them to argue that the actions of the police in obtaining the warrants were subversive such that the court may set aside otherwise valid warrants, even where the Crown is not relying on the redacted portion of the warrants: see R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321; R. v. Edwardsen, 2015 BCSC 705, [2015] B.C.J. No. 875, at para. 25; R. v. Durette, [1994] 1 S.C.R. 469.
Crown’s Position
[17] Crown counsel submits that disclosure of the handler’s notes should not be ordered. She submits that the handler was not a co-affiant of the warrants. There is no indication that he had any other involvement with the ITO. He did not swear to the ITO. He provided information in the form of a draft Appendix “D” related to the information he received from the CI and the actions he undertook in the investigation. The affiant determined what should be put in the Appendix “D”. The handler may have approved the changes but that does not mean he is a co-affiant.
[18] Crown counsel also submits that the applicants have not met the test of demonstrating that there is a reasonable possibility that the handler’s notes will be relevant to the determination of whether the warrants should have been issued. There is no basis to assert that the handler made any material omissions or deliberate falsehoods in the drafts of Appendix “D” that PC Angevine provided to the affiant.
[19] The Crown also urges the court to consider the fact that the ITO in this case is not heavily dependent on information from the CI and that the applicants already have significant disclosure in the form of judicial summaries. They have a judicial summary of Appendix “D” and a judicial summary of any differences between the drafts of Appendix “D” provided by PC Angevine and the Appendix “D” that was relied upon by the affiant in the ITO. The Crown asks the court to remember the importance of protecting CI privilege and submits that there is a legitimate concern that should more disclosure be ordered there will be a mosaic effect that the additional information disclosed may tend to identify the CI.
Analysis: The Governing Legal Principles
[20] Disclosure is essential to ensuring that an accused person can make full answer and defence, which is a constitutionally guaranteed principle of fundamental justice pursuant to s. 7 of the Charter. The Crown has an obligation to disclose any information in its possession that might reasonably be useful to an accused person in making full answer and defence: R. v. Stinchcombe, [1991] 3 S.C.R. 326.
[21] This right to disclosure not only applies at trial but also applies at evidentiary hearings, including a Garofoli application where the issuance of the search warrant is challenged. However, the scope of the right to disclosure at an evidentiary hearing is somewhat different as it occurs in a different context.
[22] The Supreme Court of Canada in Garofoli discussed the different context in which a Garofoli evidentiary hearing takes place and why there are limits on cross-examination. The court considered the limited purpose of the Garofoli application at paragraphs 30-31:
The Garofoli review hearing is not intended to test the merits of any of the Crown’s allegations in respect of the offence. The truth of the allegations asserted in the affidavit as they relate to the essential elements of the offence remain to be proved by the Crown on the trial proper. Rather, the review is simply an evidentiary hearing to determine the admissibility of relevant evidence about the offence obtained pursuant to a presumptively valid court order. (I say “relevant” evidence because, if not relevant, its inadmissibility is easily determined without the need to review the authorization process.) As indicated earlier, the statutory preconditions for wiretap authorizations will vary depending on the language of the provision that governs their issuance. The reviewing judge on a Garofoli hearing only inquires into whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed. For example, in this case, where the authorization relates to participant or consent surveillance, the reviewing judge must determine whether there was a basis for the authorizing judge to be satisfied that:
(a) there are reasonable grounds to believe that an offence has been or will be committed;
(b) either the originator or the intended recipient of the private communication has consented to the interception; and
(c) there are reasonable grounds to believe that information concerning the offence will be obtained by the interception.
Hence, there is a relatively narrow basis for exclusion. Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context. In the end analysis, the admissibility of the wiretap evidence will not be impacted under s. 8 if there remains a sufficient basis for issuance of the authorization.
It is in this narrower context that the right to cross-examine, as an adjunct to the right to make full answer and defence, must be considered. There is no point in permitting cross-examination if there is no reasonable likelihood that it will impact on the question of the admissibility of the evidence. The Garofoli threshold test is nothing more than a means of ensuring that, when a s. 8 challenge is initiated, the proceedings remain focussed and on track. Even on the trial proper, the right to cross-examine is not unlimited. In Lyttle, the Court reiterated the principle that counsel are “bound by the rules of relevancy and barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their probative value” (para. 44 (emphasis added)). The Garofoli threshold test is all about relevancy. If the proposed cross-examination is not relevant to a material issue, within the narrow scope of the review on admissibility, there is no reason to permit it.
[23] The right to disclosure at a Garofoli evidentiary hearing is defined in the purpose of the evidentiary hearing - to determine if there is any basis upon which an issuing justice could be satisfied that the relevant statutory preconditions existed. As noted in R v. Pires: R v. Lising, at para. 26, at a Garofoli application the defence has virtually automatic access to all the documents that were before the authorizing judge. The court was also of the view that under the principles established in Stinchcombe, the defence is also entitled to all potentially relevant material in the investigative file to challenge the issuance of the warrant.
[24] There has been significant disagreement within the jurisprudence as to what constitutes the “investigative file” that must be disclosed for the purpose of a Garofoli application. Campbell J. in R. v. McKenzie, 2016 ONSC 242 reviewed three different judicial approaches and discussed their benefits and limitations. In the first approach, disclosure is limited to what was placed before the issuing justice: see R. v. Barzal, [1993] B.C.J. No. 1812 (C.A.), at pp. 300-302; and R. v. Blake, 2015 ONSC 6008, at paras. 14-15, 22, 27, 35-36. Campbell J. found that this approach was too narrow as it denied the accused the opportunity to challenge the warrant by way of argument and by evidence as there could be a wealth of other material in the investigative file that would assist in arguing that the warrant should not have been issued.
[25] The second approach interprets “investigative file” very broadly such that disclosure of information that was not considered by the affiant should be disclosed: see R. v. Edwardsen, at paras. 32-35, 43-48; and R. v. Little, 2012 NSSC 402, [2014] N.S.J. No. 744, at paras. 3, 8, 13-15. Campbell J. found that this approach failed to put sufficient weight on the importance of maintaining focus in these evidentiary hearings and preventing them from becoming “unmanageable, resource-draining exercises”. He also noted that several courts have persuasively rejected this approach.
[26] The third, middle ground, approach requires disclosure of what was put before the issuing justice and the investigative file. The parties agree middle ground approach taken by Campbell J. in R. v. McKenzie should be applied in determining the issue of what disclosure should be ordered. I agree this is the proper approach. This requires disclosure at a Garofoli evidentiary hearing to determine the validity of the authorization of a search warrant and whether the evidence should be excluded pursuant to s. 24(2) of the Charter of (1) all documents that were put before the authorizing or issuing judge and (2) all other relevant materials in the “investigative file” concerning the accused.
[27] Campbell J. explained at para. 30 that the “investigative file”,
… encompasses all materials accumulated by the investigating police agency in its investigation and relied upon in the search warrant materials targeting the accused. Typically, this includes the information received by the affiant about what the confidential informant said regarding the involvement of the suspect in the alleged offence, but does not include background personal information about any confidential informant or the details of his previous activities in confidentially providing information to the police.
[28] Requiring disclosure of the investigative file at a Garofoli application balances the competing interests that are at play in an application to challenge the issuance of the search warrant and the exclusion of evidence seized pursuant to the search warrant.
[29] First, this approach recognizes the importance of the accused’s right to make full answer and defence at an evidentiary hearing. The evidentiary hearing may often be the determinative factor in a case. If the evidence is admitted, then the accused may be found guilty. If the evidence is excluded there may not be a case against the accused. However, an “accused is not entitled to the most favourable procedure that could possibly be imagined” at an evidentiary hearing: R. v. McKenzie, at para. 20. The accused must have access to disclosure that provides the accused with a meaningful procedural mechanism by which they can challenge the issuance of the search warrant on both a facial and sub facial basis: see R. v. Crevier, at paras. 52-60: R. v. Mills, [1999] 3 S.C.R. 668, at paras. 72-73; and R. v. Ahmed, 2012 ONSC 4893, at paras. 28-30.
[30] Second, it must be remembered that the evidentiary hearing is not the trial. The guilt or innocence of the accused is not at issue. The accused has the right to have sufficient disclosure to challenge the grounds to issue the warrant. The accused can also challenge whether the affiant has made any material omissions or deliberate falsehoods that would warrant either excising portions of the ITO or finding that the conduct was subversive and, therefore, that the warrant should not have otherwise been issued. The ultimate truth of the allegations in the ITO still remains to be established. The evidentiary hearing is not the trial and should not become one by adopting all of the “criminal trappings of a criminal trial”. As the jurisprudence has noted, this would result in unnecessary delays in the criminal process creating needless complexity and delay: see R. v. McKenzie, at para. 21; R. v. Pires: R. v. Lising, at paras. 24, 27-30, 33-35; R. v. Crevier, at para. 64; and R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 86.
[31] As explained by Campbell J. in R. v. McKenzie, at para. 41, requiring disclosure of information not relied upon by the affiant is not relevant to the task of determining if there was a sufficient basis to grant the search warrant, and in particular if the affiant was full fair and frank in outlining the information contained in the ITO,
I do not understand how documentation neither reviewed nor relied upon by the affiant can become part of the “investigative file” against the target of the ITO, which then must be disclosed by the Crown unless clearly irrelevant. Such documentation cannot properly be employed by the accused to undermine the impugned search warrant. As the affiant had not reviewed the documentation, there can be no realistic complaint that the affiant did not accurately outline the information in a full, fair and frank manner in the ITO.
[32] Third, the importance of CI privilege must be considered. Disclosure cannot be made of any information that may tend to identify the CI, absence innocence at stake. Regardless of the application of the rules concerning disclosure in evidentiary hearings, when dealing with CI privilege this privilege cannot be compromised. As a result, even if disclosure is provided, it must be redacted to protect the anonymity of the CI. That is not to say that the redacted disclosure has no benefit as the redacted disclosure may be used at some stage by the trial judge to verify the accuracy of the ITO and to ensure that the affiant provided full, fair and frank disclosure: R. v. Stinchcombe, at pp. 335-336; R. v. Leipert, [1997] 1 S.C.R. 281, at paras. 9-10; R. v. Pires: R. v. Lising, at paras. 29-33, 36-37; R. v. Crevier, at paras. 48-60; R. v. Ahmed, at paras 28-31; R. v. Burgher, 2014 ONSC 3239, at para 71.
[33] Requiring disclosure to the accused of any documentation relied upon by the affiant to obtain the warrant means that if the affiant is the handler of the CI or had direct communication with the CI about the involvement of the suspect in the investigation, then the notes of those communications have to be disclosed, subject to redaction to protect the CI privilege: see R. v. McGean, 2016 ONSC 1456, 348 C.R.R. (2d) 370, at paras. 26-27.
[34] Similarly, where the affiant has been provided with information from another police officer about information provided by a CI, that information is disclosable, subject to redaction for privilege: R. v. McKenzie, at para. 33; and R. v. Ahmed.
[35] The parties are in agreement that disclosure may also be granted in relation if the applicants demonstrate that there is a reasonable possibility or reasonable likelihood that disclosure will assist the court in determining whether there is a basis upon which the authorizing judge could issue the order: R. v. Pires; R. v. Lising, at para. 40; World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para 125.
Application of the Law to this Case
[36] Disclosure in this case may be granted on two bases. First, if PC Angevine is found to be a co-affiant of the ITO, then his CI handler’s notes should be disclosed as they are part of the investigative file. PC Angevine would have relied upon them to create Appendix “D”. Alternatively, if PC Angevine is not found to be a co-affiant, then his notes may still be ordered disclosed if the applicants can demonstrate that there is a reasonable possibility that the disclosure of his notes would assist the applicants in challenging the issuance of the search warrants.
Is PC Angevine a Co-Affiant?
[37] The applicants submit that PC Angevine is a co-affiant because he drafted Appendix “D” to the ITO and he reviewed the revised Appendix “D” to the affidavit and “approved” it before it was put before the issuing justice. They submit that because PC Angevine provided the information in a form of a draft Appendix “D”, it can be inferred that he intended it to be inserted into the ITO and that this required him to be full, fair and frank. They submit that this puts him in the category of a co-affiant as opposed to a sub-affiant and his notes must be disclosed.
[38] I do not find that PC Angevine is a co-affiant of the ITO for the reasons set out below.
[39] First, PC Angevine provided a draft document titled “Appendix D”. The judicial summaries that have been disclosed show that this draft contained information from the CI that was relevant to this investigation. The judicial summaries also show that PC Angevine included information about the actions he took in the investigation. While the summary of this information was provided in the form of a document titled “Appendix “D”, the information contained in this document as summarized in the judicial summary is the type of information that one would expect a handler to pass on to the affiant for consideration in preparing the ITO. I do not find that the fact that he prepared a summary of the information obtained from the CI in the form of a draft Appendix “D” as opposed sending the affiant an email, his direct notes or briefing reports to be a sufficient basis on its own to make him a co-affiant.
[40] I do not see a significant difference from what Officer Angevine did in drafting a summary of the information he received from the CI and his involvement in the investigation to that of officers who prepare reports based on their notes that are in turn provided to the affiant to put into the ITO. For example, officers involved in surveillance may provide surveillance reports of their involvement in an investigation. Similarly, when dealing with CI’s handlers make notes but then provide a source report of the information that was provided. Affiants in drafting ITOs have relied upon these types of reports without a requirement that there be disclosure of the underlying documents: see R. v. Ahmed, at para. 9 as an example. All officers are required to make accurate, detailed and comprehensive notes in an investigation. It is expected that the officer will provide to the affiant all relevant information to the investigation. I do not think that the fact that PC Angevine put the title “Appendix ‘D’” on the summary of information he obtained from the CI in relation to the investigation to the affiant is determinative that he is a co-affiant.
[41] Second, PC Sherwin made changes to the information contained in the draft Appendix “D”. PC Sherwin determined what material should be contained in Appendix “D”. The judicial summaries show that PC Sherwin did not include all of the information that PC Angevine provided in the draft Appendix “D”. It is also clear that PC Sherwin put some information he received regarding the CI into the body of his ITO. There is no evidence that PC Angevine had anything to do with drafting the body of the ITO. Had PC Sherwin simply put in the draft Appendix “D” into the ITO, without any review and/or changes, then the applicants’ argument that PC Angevine was a co-affiant would have been stronger, but that is not what happened in this case.
[42] Third, there is no evidence that PC Angevine had any involvement in any other part of the ITO. There is no evidence that he drafted Appendix “A”,”B”, or “C” or was involved in drafting the grounds that the affiant relied upon to support his application to obtain the search warrants. It is also worth noting that this was not the case where the majority of the ITO relied upon Appendix “D”. There was a great deal of information from many other sources that was relied upon to support the issuance of the warrants.
[43] Forth, PC Sherwin swore to the truthfulness of the contents of the ITO. PC Angevine did not.
[44] Fifth, I do not find that the fact that PC Angevine reviewed the edits and “approved” them prior to the ITO being submitted to the issuing justice, means that he is a co-affiant. There is no evidence before me as to what the officer meant when he used the word “ approved”. The ordinary definition of “approved” in Merriam-Webster’s dictionary includes three meanings: i) to have or express a favourable opinion; ii) to accept as satisfactory or iii) to give formal or official sanction: online: Merriam-Webster Dictionary. The applicants ask that I find that he approved the edits in the sense that he had the final say as to what was presented to the issuing justice in the ITO. I am not prepared to draw that conclusion in light of all the other factors I have outlined above, including:
- the fact that he did not swear the ITO;
- there is no evidence that he had any other involvement in drafting the ITO; and
- PC Sherwin made changes to Appendix “D” and included information from the CI in the body of the ITO.
[45] I do not see anything wrong in an officer “approving” or ensuring that the information he provided is being presented to an issuing justice in a truthful manner. The fact that the officer was diligent in ensuring that the information was accurate should not be used as a basis to find that he is a co-affiant. As noted in R. v. Adbirahim, 2013 ONSC 7420, at para. 26, it is “good practise” to ensure that the summary of the information is accurate before the ITO is submitted to the issuing justice for consideration: see also R. v. Ahmed, at para 8.
[46] After considering the above factors cumulatively, I am not of the view that PC Angevine was a co-affiant of the ITO. I find that PC Sherwin was the affiant in this case and, therefore, the applicants are entitled to disclosure of the material that he relied upon in creating the ITO. This includes the draft summary of Appendix “D” which was prepared by PC Angevine. The applicants have disclosure of a judicial summary of Appendix “D” as well as a judicial summary of any differences between the drafts of Appendix “D” and the final version of Appendix “D” that was relied upon in the ITO. The applicants are not entitled to disclosure of the handler’s notes as the affiant did not rely on the notes to create the ITO and they are, therefore, not part of the investigative file.
Is there a Reasonable Possibility that the Notes will tend to assist in Challenging the Issuance of the Search Warrants?
[47] The applicants also submit that they are entitled to disclosure of Officer Angevine’s handler notes as they can demonstrate that there is a “reasonable likelihood” or “reasonable possibility” that the handler notes will assist the court in relation to a material issue on the application to challenge the issuance of the search warrants under step five of the Garofoli process.
[48] The reasonable possibility standard is not an onerous standard to meet. It is, however, a fair threshold to meet as it prevents fishing expeditions and ensures efficient use of judicial resources: see R. v. Pires; R. v. Lising, at paras. 30-31, 40; R. v. Ahmed, at paras. 29-33; World Bank Group v. Wallace, at paras. 127,128, 133.
[49] This application for disclosure is being considered in the context of step five of the Garofoli process where the Crown is submitting that there was a sufficient basis upon which the warrants could be issued without reliance on the redacted material.
[50] The applicants submit that despite the fact that the redacted information from the CI is not considered in determining whether the search warrants could have been issued, the disclosure of the handler’s notes is still relevant to their challenge to the issuance of the warrants. They submit that they can demonstrate that there is a reasonable possibility that disclosure of the handler’s notes will reveal a material omission and/or deliberate or negligent falsehood in Appendix “D”. They submit that if either PC Angevine or PC Sherwin were aware of the omission or falsehood or ought to have been aware of the omission or falsehood this would permit them to argue that the actions of the police in obtaining the warrants were subversive such that, even if the warrants are otherwise valid, they should not stand: see Paryniuk.
[51] The applicants submit that, as a sub-affiant, PC Angevine had an obligation to be full, fair and frank with respect to what was included in Appendix “D”, as he drafted the appendix for the purpose of it being included in ITO and, therefore, disclosure should be ordered. I have already addressed this argument in the context of finding that PC Angevine was not a co-affiant. I am not prepared to create an enhanced category of a sub-affiant that in essence places PC Angevine in the same position as an affiant.
[52] The applicants’ right to a fair evidentiary hearing is satisfied by having the applicants demonstrate that there is a reasonable possibility or a reasonable likelihood that the disclosure they seek will assist in their argument that the warrants should not have been issued as the conduct of the affiant was subversive in obtaining the warrants. There has to be more than a bald assertion that the disclosure will assist. I recognize that that the applicants are not required to demonstrate that the disclosure will prove their assertion but more then a simple statement that the evidence would be relevant is required: R. v. Pires; R. v. Lising, at para. 40.
[53] An example of where the court was satisfied that the accused had raised a reasonable possibility that the information would be relevant was found in Garofoli, in the context of granting leave to cross-examine the affiant. The Supreme Court of Canada permitted cross-examination on the basis that the accused sought to show that the affiant was aware of the CI’s lack of credibility, which was relevant to the issuance of the search warrant. The CI alleged that he had been approached by Garofoli and another individual to purchase two kilograms of cocaine. The affiant was aware that the accused resided in Florida at the relevant time and that he only travelled back to Hamilton in connection with court appearances. In addition, the court found that this information was “critical to establishing the requisite reasonable grounds”. Sopinka J. held that if the information was discredited, then the factual basis for the authorization was undermined. Moreover, if it was shown that the CI lied then the accused could raise the inference that police knew or ought to have known that the CI lied.
[54] The applicants submit that the email from PC O’Conner provides a reasonable possibility that the disclosure of the handler’s notes will illicit evidence probative to the challenge to the issuance of the search warrants. The email from PC Gregory O’Connor dated December 8, 2016 states that a CI gave him a call and said that the shooter is Tyree Johnson-Fuller and Demetre Hibbert. The applicants submit that it is reasonable to infer that this is the same CI as the CI referred to in Appendix “D”. They argue that the omission of Johnson being involved in the shooting with Hibbert would be a material omission that would impact the issuance of the warrants. It is my view that it is speculative to infer that it is the same CI providing the information, particularly given that the information was received six days after the shooting.
[55] Moreover, this email does not suggest that the affiant was attempting to mislead the issuing justice. It does not say that there was another shooter, rather it states that Mr. Hibbert was one of the shooters. If the CI information was credible then it would further support the issuance of the warrants.
[56] The applicants submit that even if they cannot provide a specific example to provide a basis for disclosure, that if any material misrepresentation would be relevant to challenging the issuance of the warrants, then disclosure should be ordered. As I have already noted, more than a bald assertion is required. The disclosure request must be based on more than speculation. Their submission disregards the minimal threshold the applicants are required to satisfy - a reasonable possibility or reasonable likelihood that the disclosure will assist. The minimal threshold is there to prevent evidentiary hearings from becoming unmanageable and turning them into trials. As explained in World Bank Group v. Wallace, at para. 124, in considering disclosure of third party records, it is not enough that the accused show that the there is a reasonable likelihood that there are material omissions but that the affiant was aware of the errors or omissions,
Specifically, where an accused asserts that third party documents are relevant to a Garofoli application, he or she must show a reasonable likelihood that the records sought will be of probative value to the issues on the application. The fact that the documents may show errors or omissions in the affidavit will not be sufficient to undermine the authorization. They must also support an inference that the affiant knew or ought to have known of the errors or omissions. If the documents sought for production are incapable of supporting such an inference, they will be irrelevant on a Garofoli application (Pires, at para. 41).
See also McKay, at para 141.
[57] The applicants have not demonstrated that there is a reasonable possibility that the disclosure of the handler’s notes would show a material omission or falsehood that was deliberate or reckless in the draft Appendix “D” that was prepared by PC Angevine that was misleading. There is even less of a reasonable possibility that the affiant was aware of any material omission or deliberate falsehood and mislead the issuing justice. It is also worth noting that it has already been disclosed to the applicants that there are no material inconsistencies between the draft summaries of information that PC Angevine provided to PC Sherwin and the final version of Appendix D”.
[58] The applicants rely on R. v. Debartolo, 2018 ONSC 916, 406 C.R.R. (2d) 216 in support of their position that disclosure of the handler’s notes should be ordered in this case. I find that the facts in that case are distinguishable from the present facts in two material aspects. Therefore, R. v. Debartolo does not assist their argument.
[59] In R. v. Debartolo, Forestell J. ordered disclosure of the handler’s notes. The handler was the sub-affiant. The accused wanted to argue that there were serious omissions in the ITO and that the police deliberately misled the issuing justice and, therefore, the entire ITO was undermined. At the time disclosure was ordered, it was believed that the affiant had relied upon the handler’s notes in preparing the ITO. It was discovered during the cross-examination of the affiant that this was not the case, but rather the information was shared through an email. That is distinguishable from the facts in the present case as there is no issue that the handler’s notes were not reviewed by the affiant in preparing the ITO. Moreover, in ordering disclosure, Forestell J. found at para. 15 that the CI information was the foundational material in the ITO and that the notes “meet the threshold even if they are not strictly speaking part of the investigative file.” This appears to be a broader approach than contemplated in R. v. McKenzie. The facts in this case are also different. Appendix “D” forms part of the material relied upon in support of the issuance of the search warrants, but it is certainly not the only information that is relied upon.
[60] Crown counsel submits that in considering whether to order disclosure of the handler notes, there is a real concern that providing further disclosure may tend to identify the informant, particularly in light of the judicial summaries that have already been disclosed. The Crown reminds the court that “a seemingly innocuous detail could be all that someone familiar with the matter needs to identify the informant”: see Leipert. She also raised concerns about the mosaic effect of disclosure that may lead to the identity of the CI being revealed in this case as two judicial summaries have already been disclosed: see McKay, at paras. 155- 157.
[61] While the protection of CI information is one of the considerations that is kept in mind in determining the extent to which disclosure should be granted in a Garofoli application, as discussed by Campbell J., this factor does not weigh in my determination of whether disclosure should be ordered. If I ordered disclosure, the Crown would have an opportunity to make submissions as to whether any part of the handler’s notes could be disclosed and then the court would have an opportunity to review the redactions to ensure that they are necessary. It may be at the end of the day that very little or nothing could be disclosed, as it may tend to identify the CI in light of the other information that has already been disclosed. It is my view that it would be premature to deny disclosure on the basis that none of the notes should be disclosed because they are privileged without first reviewing the documents: see McKay, at paras. 149 and 158.
Conclusion
[62] The applicants’ application for disclosure of the handler’s notes is dismissed. I do not find that PC Angevine was a co-affiant of the ITO, I am also not satisfied that there is any reasonable likelihood or reasonable possibility that disclosure of the handler’s notes will assist the court in determining a material issue on the application to challenge the issuance of the search warrants.