Court File and Parties

COURT FILE NO.: 818/17 DATE: 2019 03 18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

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 12 to 15, 2019

RULING

Re: Judicial Summary under Step two of Garofoli Process & Judicial Summary of Comparison between Drafts of Appendix “D”

Dennison J.

Overview

[1] On March 10, 2017, police executed three search warrants. Upon executing a search warrant to search a 2007 BMW with Ontario license plate BZLK466, police discovered a loaded firearm. Mr. Hibbert was charged with various firearm offences. Police also executed two search warrants at homes located at 107-7340 Goreway Drive, Mississauga and 201-8 Newhaven Manor, Brampton. Drugs including methamphetamine, heroin and marijuana, were discovered at 201-8 Newhaven Manner where Ms. Williams resided. She was charged with various drug offences.

[2] The case against the applicants turns largely upon the admissibility of the firearm and drugs that were seized by Peel Police during the execution of search warrants in the course of this investigation.

[3] The information to obtain (“ITO”) the search warrants was based, in part, on information police received from a Confidential Information (“CI”) that was largely set out in Appendix “D” to the ITO. Appendix “D” was redacted from the ITO that was disclosed to the applicants. In addition, certain paragraphs in the body of the ITO were redacted on the basis of CI privilege.

[4] Prior to the commencement of trial, the applicants brought a challenge to all three search warrants, submitting that there was insufficient grounds to obtain the warrants and, therefore, the items that were seized should be excluded from trial pursuant to s. 24(2) of the Charter. I was appointed as the 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.

[5] The applicants brought several preliminary applications related to the Charter challenge. First, they requested judicial summaries of the redacted parts of the ITO under step two of the Garofoli application as they submitted the Crown had provided insufficient reasons for the redactions. The applicants also requested disclosure of the notes of the handler of the CI and for leave to cross-examine the affiant and sub-affiant on the ITO. This is the first of several decisions dealing with the applications and relates to the disclosure of the judicial summary under step two of the Garofoli application and a related disclosure request that required a judicial summary.

The Supreme Court Decision in R. v. Garofoli: The Six Steps

[6] In the seminal case of R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, Sopinka J., for the majority, provided the following outline of the procedural steps generally to be taken in cases where a wiretap authorization (or search warrant) is attacked by an accused. Sopinka J. noted that this procedural outline was neither exclusive nor exhaustive:

1. Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.
2. The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.
3. After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.
4. After the determination has been made in (3), the packet material should be provided to the accused.
5. If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.
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.

Step Two of Garofoli: Judicial Summary

[7] As noted above, the applicants sought a judicial summary of the reasons for the redactions at step two of the Garofoli application. All of Appendix “D” was redacted and there are some redactions in the main body of the ITO.

[8] The applicants submit that they are entitled to a more detailed explanation for the redactions aside from the assertion that the redactions contained information that was protected CI privilege. The applicants submit that the starting point is full disclosure and the Crown must justify any proposed editing. They also argued that if they did not raise their concerns now this may adversely impact any arguments they may make in the s. 8 Charter motion with respect to the s. 24(2) Charter analysis. In support of this position, they relied upon R. v. McKenzie, 2015 ONSC 6289, at paras. 12-16; R. v. Blake, 2010 ONCA 1, 204 C.R.R. (2d) 156, at paras. 25 and 27; see also R. v. Burgher, 2014 ONSC 4527.

[9] The Crown submitted that this was not a situation where a judicial summary was necessary at this stage in the Garofoli application. She submitted that it was clear that the reason for the redactions was to protect CI privilege. The Crown submitted that this was sufficient for the applicants to appreciate the “nature of the deletions” as required by step two in a Garofoli application.

[10] These reasons expand on the brief oral reasons I gave for ordering that that a judicial summary be provided under step two of the Garofoli application.

Analysis for Requiring Judicial Summaries under Step Two

[11] Both step two and step six in a Garofoli application provide that the court may prepare judicial summaries and provide them to the applicants.

[12] The purpose of providing summaries in step two in a Garofoli application to is to ensure that the applicants “will be able to appreciate the nature of the deletions”. What does that require? Is it enough for the Crown to simply say the matter is deleted to protect CI privilege, or is more required?

[13] It is my view that more is required than simply providing the basis for the deletion. The purpose of the judicial summary is to enable the applicants’ counsel to make submissions to the trial judge regarding what should be included in the final edited version of the ITO. The applicants must be able to meaningfully participate in that exercise. The trial judge must bear in mind that editing must be kept to a minimum but must protect the CI privilege. I agree with Campbell J.’s comment in R. v. Burgher at para. 16 that “[t]he only deletions that should be judicially approved are those that are necessary to properly protect the identity of the confidential informant.”

[14] The purpose of the judicial summaries in step two and step six are different. In step two, the purpose of the judicial summary is to ensure that the applicants are is aware of the nature of the deletions so that the applicants may make submissions to the judge regarding the judicial summary. In contrast, in step six of the Garofoli process, the judicial summary is to contain the “nature of the excised material”: R. v. Burgher, at para. 24. At step six, the judicial summary is provided to permit the applicants to challenge, by means of evidence or argument, the excised materials in furtherance of the applicants’ challenge to the original ITO that supported the issuance of the warrant.

[15] The fact that the purpose of the judicial summaries in step two and step six are different may result in the judicial summaries being different. However, the summaries may also be very similar or the same, as discussed by Campbell J. in Burgher. This may arise if there is no issue between the parties as to the propriety of the manner in which the Crown redacted the ITO, or if the trial judge approves without alteration the Crown-created version of the judicial summary: see R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at para. 96.

[16] For the above reasons, I determined that a judicial summary was appropriate in this case to permit the applicants to meaningfully participate in step three of the Garofoli application as opposed to simply informing the applicants that Appendix “D” was redacted to protect CI privilege.

The Judicial Summary Provided in this Case (Steps Two, Three and Four)

[17] After I ordered that a judicial summary was to be provided, the parties agreed that Crown counsel would draft the judicial summary for my consideration and provide it to me via email. Crown counsel and I would communicate in writing with respect to the judicial summary. This approach has been used in other cases: see R. v. McKenzie, 2015 ONSC 6289.

[18] Crown counsel provided me with the draft judicial summary. Upon review of the material, I determined that I needed to hear evidence from the handler of the CI in camera with respect to the information contained in the draft judicial summary and whether or not it would tend to identify the CI. I was of the view that written questions and answers to and from the Crown would not sufficiently address my concerns given the breadth of my concerns. This approach has also been used in other cases: see R. v. Debartolo, 2018 ONSC 916, 406 C.R.R. (2d) 216.

[19] In conducting the in camera hearing, I kept two principles in mind: first, the importance of protecting information that may tend to identify the CI; and the importance of the open court principle.

[20] Once the trial judge is satisfied that the privilege exists, a complete and total bar on any disclosure of the CI’s identity applies, absent the innocence at stake exception: Re Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at para. 21; R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281, at para. 12.

[21] On the other hand, it is essential to ensure that the open court principle is respected to the greatest extent possible without compromising the CI privilege. The importance of the open court principle was stated by the Supreme Court of Canada in Re Vancouver Sun, 2004 SCC 43, [2004] 2 S.C.R. 332, at para. 25,

Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and the public’s understanding of the administration of justice. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts.

[22] The court is obligated to ensure that the open court principle is respected to the maximum effect possible by requiring that CI privilege be protected but that all other information is not. It is necessary to ensure that as much information as possible is made public and that disclosure and publication are restricted only for that information which might tend to reveal the CI’s identify: see Re Named Person, at para. 41.

[23] At the in camera hearing, the handler of the CI was questioned regarding the need to protect the identity of the CI in specific paragraphs in the judicial summary that he and Crown counsel drafted. After his evidence was completed, Crown counsel requested an opportunity to provide a revised version of the draft judicial summary based on the answers the handler gave to my questions. She provided me with this revised judicial summary. I then provided her a copy of my changes and she provided some further submissions with respect to why the information may tend to identify the CI in camera, which I considered. I then finalized the judicial summary.

[24] Counsel for the applicants were advised of the general nature of what occurred in camera. All of the communications that occurred between myself and Crown counsel have been filed with the court and are under seal subject to further order of the court. The recordings proceedings were also sealed subjected to further order of the court. I provided oral reasons explaining the reasons for why the judicial summary was drafted in the manner in which it was finalized that were ordered sealed given that my reasons would tend to identify the CI.

[25] The judicial summary provided to counsel was drafted in such a way as to ensure that the information contained in the judicial summary did not tend to identify the CI and information that did not tend to identify the CI was disclosed. Counsel for the applicants had an opportunity to review the judicial summary. Upon review, they advised that they had no further submissions with respect to any further editing under step three of the Garofoli application. The final editing of the ITO was complete and counsel has the final package as set out in step four in a Garofoli application.

Disclosure of Draft Appendix “D”s

[26] Upon receipt of the judicial summary of Appendix “D”, the applicants requested further disclosure from the Crown of the draft summaries of Appendix “D”. PC Angevine, the CI handler, prepared draft summaries of Appendix “D” and provided them to the affiant, PC Sherwin.

[27] The parties agreed that it was appropriate that I prepare a judicial summary of the differences between the drafts of Appendix “D” provided by PC Angevine on December 11, 2016, March 4, 2017 and the final version of Appendix “D” that was sworn on March 9, 2017 by PC.

[28] It was agreed that I would review the various drafts to determine what the differences were and to provide a judicial summary of any differences. I would then hear submissions from Crown counsel in camera about the draft judicial summary that was prepared and whether it tended to identify the CI.

[29] I prepared a draft judicial summary. I then heard from the Crown in camera regarding her concerns that the judicial summary disclosed information that may tend to identify the CI. I considered her submissions and made some revisions to the judicial summary. She was then provided with the revised version of the judicial summary and had no further submissions.

[30] Counsel for the applicants were aware that I heard submissions from Crown counsel in camera about her concerns that some of the information may tend to identify the CI and that I made some changes to the judicial summary based on those submissions. Again, all copies of the communications between myself and Crown counsel were made as exhibits to the in camera proceedings and ordered sealed. Counsel for the applicants were also advised that I provided oral reasons in camera explaining the reasons for why I accepted or did not accept the Crown’s submissions regarding the wording of the judicial summary, which were ordered sealed as my reasons may tend to identify the CI. Once again, judicial summary was drafted in a way so as to no reveal information that would tend to identify the CI but to disclose all other information.

[31] Counsel for the applicants were provided with the judicial summary. They had two questions. First, was there any contradictions between the parts that were redacted from the draft Appendix “D” dated December 11, 2016 compared to the Appendix “D” in the March 9, 2017 ITO? The applicants also wanted to know whether the information from PC Angevine was contained in Section B of the Information provided in Appendix “D”. Crown counsel reviewed the material and provided a one sentence judicial summary. In camera, we briefly discussed her one sentence summary. I made one grammatical change to it. I then added the second paragraph. Crown counsel made the changes and this judicial summary was provided to counsel. The applicants were advised of the process that took place in camera and that the draft materials were made exhibits to the proceedings which were sealed subject to further order of the court.

[32] Counsel for the applicants advised that they were content with the judicial summaries provided for the purpose of the arguments that would be made at step five of the Garofoli application and were prepared to proceed to the next motion dealing with disclosure of the CI handler’s notes.

Conclusion

[33] I ordered disclosure of a judicial summary of Appendix “D” to the ITO as well as a summary of information contained from the CI in the body of the ITO under step two of the Garofoli application. In addition, with the consent of all parties a judicial summary was provided to the applicants of any differences between the drafts of Appendix “D” which were provided by PC Angevine to the affiant, PC Sherwin.

Dennison J. Released: March 18, 2019