BRACEBRIDGE COURT FILE NO.: CR-17-021-00

DATE: 20191025

CORRIGENDA: 20191025

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BRIAN COLDIN

Applicant

M. Flosman, for the Crown

D. Kayfetz, for the Applicant

HEARD: August 15, 2019

REVISED REASONS FOR DECISION

The text of the original Reasons for Decision has been corrected with the text of the corrigendum (released October 25, 2019)

HEALEY, J.:

Overview

[1] Brian Coldin was charged on September 9, 2015 on a 12-count Indictment containing the following counts: arson for a fraudulent purpose x 2; arson x 2; counselling the commission of an offence not committed x 2; possession of a firearm contrary to an order; careless storage of a firearm x 2; and possession of property obtained by crime x 2. The Crown withdrew three of those counts - careless storage and charges of possession of stolen property that pertained to a wood chipper and a Kubota tractor – before the trial began.

[2] Mr. Coldin re-elected to be tried by judge alone. The trial is in progress; the Crown has closed its case. The last sitting day on this trial was May 3, 2019, followed by a hiatus to allow applications to be brought by the defence.

[3] The defence has made 4 applications, seeking the following relief:

1. Quashing a one-party authorization made pursuant to s. 184.2 of the Criminal Code for interception of communications and excluding the evidence obtained by that authorization;

2. Excluding the evidence of a police agent, Ken Shearer, for failing to comply with “standards of conduct”;

3. Excluding the evidence of Ken Shearer due to abusive conduct by the investigators, Det. Randy Graham and Det. Peter Marshall; and,

4. Staying the charges due to abuse of process caused by late disclosure.

Background to the Charges

[4] The genesis of the charges stems from an informant, Ken Shearer, who was an acquaintance of Brian Coldin. The two men had known one another for several years, possibly since 1999, although Shearer has provided widely divergent answers on that subject.

[5] Coldin owns the High Falls Resort located in the Town of Bracebridge. The resort includes a motel, cabins, and a camping area in addition to several other buildings. Shearer performed various jobs at the resort and he regularly went there to pick up cans and bottles for recycling.

[6] The Muskoka River borders the north end of High Falls Resort. Situated on the edge of the river are five privately-owned cottages. Access to the cottages is across a deeded right of way crossing the resort property, on a road called Fallsview Road. The cottage closest to the resort, being the first one reached when using the right of way, is owned by John Walker. Its municipal address is 50 Fallsview Road. The middle cottage is occupied by Anita Ramsay, at 60 Fallsview Road. The last cottage of the five is referred to as the Seegar cottage, at 76 Fallsview Road.

[7] In 2010 a cabin at the High Falls Resort burned to the ground. The investigation led the authorities to finding flammable liquids and torches in two other cabins adjacent to the one consumed by fire. The Fire Marshall’s Office ruled the fire to be arson. Coldin was not at the resort at the time of the fire. He received an insurance payout for that fire in the amount of $57,692.

[8] Three years later, in July, 2013, the Seegar cottage was destroyed by fire. The cause of the fire was never determined.

[9] In November, 2013, John Walker discovered a gasoline can and a partially burned piece of wood in the crawlspace of his cottage. That crime remained listed as unsolved.

[10] In November, 2014, Shearer told a police officer, Det. Randy Graham, that Coldin was responsible for the 2010 fire. Shearer was contemplating acting as a police agent, and offered to wear a wire to capture conversations with Coldin about the arson. No further action was taken at that time.

[11] In June, 2015, Shearer spoke with Det. Graham again, this time telling him that Coldin had been calling him “to get the guys that burned the cabin for him to do it again”, and that Coldin now wanted the main building at the resort “torched”. Thereafter, the investigation unfolded as Project Dareton.

[12] Shearer is not a confidential informant in relation to Project Dareton, having waived such status.

Application #1: Quashing the Authorization

Overview

[13] In this first application, Mr. Coldin seeks to exclude the audio/video evidence obtained through a one-party consent authorization issued pursuant to s. 184.2 of the Criminal Code. Interceptions were permitted in respect of the offences of arson, fraud, and conspiracy to commit, attempting to commit or counselling in relation to those two offences. The authorizing justice also issued a general (video) warrant, a transmission data recorder warrant and an assistance order, as authorized by s. 184.2(5).

[14] The consent authorization permitted the interception of private communications between an undercover operator named Mark Johnston, Shearer and Coldin. The investigative plan was to have Shearer introduce Coldin to Johnston, posing as an arsonist, and that Johnston would thereafter obtain evidence directly from Coldin.

[15] Mr. Coldin submits that the authorization and warrants should not have been issued, arguing that the police did not have reasonable grounds to believe that the proposed interceptions and other seizures would produce information about the past or future commission of criminal offences. In particular, he argues that the affidavit filed in support of the authorization and warrants was incomplete or misleading in some significant respects, in that it failed to fully disclose all of the information known to the police bearing on Shearer’s credibility and reliability. Mr. Coldin maintains that if full, fair and frank disclosure had been made, there would have been no basis on which the authorization or warrants could properly have been issued. Accordingly, this is a Garofoli application that requires this court to determine whether the statutory prerequisites to the granting of the authorization were met: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421.

[16] It is undisputed that the authorization and warrants at issue here allowed the police to do things that interfered with Mr. Coldin’s reasonable expectation of privacy, and accordingly engaged his s. 8 Charter rights. If the authorization and warrants were not lawfully issued, this interference with Mr. Coldin’s privacy rights will have been unreasonable and his rights under s. 8 of the Charter will have been violated.

[17] Mr. Coldin also challenges the way in which the authorization was carried out, arguing that the scope of the authorization was exceeded.

The Guiding Legal Principles

[18] The authorization is presumed to be valid. Mr. Coldin bears the onus of establishing that the authorization was not constitutionally valid.

[19] Consent authorizations require that the issuing justice be satisfied that there are reasonable grounds to believe that an offence has been or will be committed, and that there are reasonable grounds to believe that information concerning the offence will be obtained through the interception sought: s. 184.2(3).

[20] The standard for establishing reasonable grounds is where “credibly based probability replaces suspicion”: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 115; R. v. Sadikov, 2014 ONCA 72, 300 C.R.R. (2d) 308, at para. 81. This is a lower standard than a balance of probabilities: R. v. Amare, 2014 ONSC 4119, at para. 83, aff’d 2015 ONCA 673.

[21] The affidavit sworn to obtain the authorization (the “ITO”) must address both prongs of the inquiry: the basis upon which the affiant has formed reasonable grounds to believe that an offence has been or will be committed; and the basis upon which he or she has formed reasonable grounds to believe that evidence of the offence will be obtained through the interception. The affiant must personally believe in the existence of reasonable and probable grounds and the belief must be objectively reasonable: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241 (S.C.C.), at p. 250.

[22] The grounds for an application for an authorization intercepting private communications must be set out in a sworn affidavit, the content of which must be full, frank, clear and concise: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at paras. 46-47.

[23] The affiant must take care to consider all available information, even that which detracts from the existence of reasonable and probable grounds: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-251; R. v. Wu, 2015 ONCA 667, 127 O.R. (3d) 494 at paras. 55-57 and 64. The rule is that no relevant information adverse to the interests of the accused may be withheld: Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3 at paras. 27. It is also improper to include irrelevant information that is unfavorable to the accused: R. v. Campbell, 2010 ONCA 588, 216 C.R.R at para. 74. The existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant to a determination as to whether an information expunged of its offending parts could properly result in issuance of a search warrant: Garofoli, at para. 68.

[24] The test on this review is whether, following excision and amplification, there is any reliable evidence that might reasonably be believed on the basis of which the authorization could have issued: Araujo, at paras. 51-53. The issuing justice’s decision must be given deference unless the defence meets the burden of establishing that there was no basis on which the authorization could have been granted: Morelli, at para. 8. The review has nothing to do with whether this court would have issued the authorization, as a Garafoli application at trial must not become a hearing de novo: Garofoli at para. 67.

[25] The first step of the review for this court is to assess whether there actually are material omissions in the ITO, and whether the information provided in it fairly and accurately conveys what was known to the affiant, either personally or through other sources such as other investigators, at the time that the ITO was sworn. Any facts found to have been omitted must be taken into account: R. v. Bisson, 1994 CanLII 46 (SCC), [1994] 3 S.C.R. 1097, at p. 1098.

[26] Additionally, this court must assess whether the information conveyed, or the manner in which it was conveyed, was misleading to the issuing justice. If so, any erroneous or misleading information must be removed from the affidavit: Araujo, at para. 56, R. v. Morelli, 2010 SCC 8, 2010 S.C.J. No. 8, at paras. 41, 44-45. Where, as in this case, trial evidence is being relied on, the reviewing judge is required to assess the evidence placed before the justice in the light of the evidence brought out at trial in order to determine whether, after expunging any misleading or erroneous information, sufficient reliable information remains to support the warrant: R. v. Monroe (1997), 1997 CanLII 3034 (BC CA), 8 C.R. (5th) 324 (B.C. C.A.), at p. 333, Araujo, at para. 53.

[27] The affiant of the ITO was Det. Brent Elbers. Mr. Kayfetz did not seek to conduct a Garofoli voir dire to cross-examine Det. Elbers at trial. Several police officers testified at trial, including Det. Inspector Martin Graham, the officer in charge of Project Dareton (not to be confused with Det. Randy Graham). Ken Shearer also testified.

[28] It will not necessarily be dispositive of the Garofoli application for the defence to establish that Det. Elbers’ affidavit was inaccurate or misleading, or even that a material fact was not disclosed: Garofoli, at p. 1452; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30. It will depend on the particular factual context. In a consent-based authorization, the ITO must meet the same “totality of the circumstances” test as other affidavits filed in support of warrants: R. v. Gyles, [2003] O.J. No. 1922 (S.C.J.). In the final analysis, there will be no breach of the applicant’s s. 8 Charter rights if there remains a sufficient basis for issuance of the authorization: Lising, at para. 30. As stressed in Araujo, at p. 1019, the totality of the circumstances must be examined to determine whether sufficient reliable information exists, in order to balance the competing needs of judicial finality and the protection of prior authorization systems.

[29] The primary basis of the affiant’s belief that arsons have been and will be committed by Coldin comes from Shearer’s information that he had arranged two previous fires on behalf of Coldin, in 2010 and 2013, and that Coldin had approached him again to do the same in 2015.

[30] Because the bulk of the information in the ITO came from authorities acting on a tip from Shearer, the principles set out in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140apply. Det. Elbers was aware of this, as he addressed the Debot criteria in the ITO. The court in Debot outlined three particular concerns to be addressed in weighing evidence relied on by police (at p. 215):

1. Was the information compelling?

2. Where the information was based on a “tip” originating from a source other than the police, was that source credible?

3. Was the information corroborated by police investigation prior to making the decision to seek authorization?

[31] While it can be quite proper and necessary for the police to act on tips, the credibility and reliability of those informants must be carefully weighed when they are the main source of information for the ITO. In R. v Herta, 2018 ONCA 927, 143 O.R. (3d) 721, at para. 39, Fairburn, J. noted that the purpose of considering the Debot criteria is “to determine the overall reliability of what the CI has said”. Also see R. v. Shivrattan, 2017 ONCA 23, 346 C.C.C. (3d) 299, at para. 27, and R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742, at para. 16. The principles in Debot apply to both known and confidential informers: R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281.

The Information from Shearer

[32] There are 4 main bodies of information from Shearer:

(a) statements that he made to Det. Randy Graham in November, 2014 and June and July, 2015;

(b) an assessment by the OPP Witness Protection Informant Control Unit on June 23, 2015;

(c) a Subjects Under Investigation – Criminal Activity Statement, referred to as the “KGB statement”, taken by Det. Peter Marshall on July 1, 2015; and

(d) A Lifestyle Statement, taken by Shearer’s handlers, Det. Bill Fitzpatrick and Det. Jay Hutton on July 15, 2015.

[33] The statements made to the police by Shearer at each of those times is set out in Appendix A to these Reasons. I have included only the information that I find important to the analysis to be undertaken on this review.

[34] On July 13, 2015 Shearer was approved to be used as a police agent and entered into a service provider’s agreement with the OPP.

The Position of the Parties

[35] Mr. Flosman submits that the applicant’s arguments overlook the fact that Shearer volunteered to wear a wire and participate in the investigation, which is not the conduct of someone attempting to deceive the police, and that the police did a thorough vetting of him that included a psychiatric assessment. But these facts, while part of the totality of circumstances that this court must take into consideration, do not overcome the necessity to establish “reasonable grounds to believe”.

[36] The primary challenge from the defence is that the ITO omitted information or made misleading statements that impact on the credibility of Shearer. Mr. Kayfetz argues that if all the material information known to the police had been fully and fairly cited in the affidavit, this would have eroded the existence of objectively reasonable belief that an offence had been committed or will be committed by Mr. Coldin. Mr. Kayfetz points out several pieces of information that were presented in a way that was misleading, and two items of information that were missing from the ITO altogether.

[37] I will deal with the omissions first. The first of these was that the ITO omitted to disclose that the police had investigated whether an insurance policy was in force in June and July, 2015, and had been unable to conclude one way or the other. The police were also aware, as disclosed in the ITO, that Coldin had received an insurance payout from the 2010 fire, and the affiant included multiple references by Shearer to Coldin’s need for money. At trial, Inspector Graham testified that by the time the ITO was sworn, he had established that the company that insured the resort in 2010 was no longer providing insurance, but he had not determined whether the resort was in fact insured. It was the affiant, Det. Elbers, who informed him on July 29, 2015 that the police had been unable to identify insurance for the resort. At the time of giving his testimony on May 3, 2019, Inspector Graham had still not determined whether the property was insured. He conceded that, had it been determined that there was no insurance, that would have affected “accepting the pitch of Ken Shearer that Brian wanted to burn down his property for insurance”.

[38] This information is not contained anywhere in the ITO. One of the investigative goals stated in the ITO is to obtain further information about Coldin’s intention to have another building at the resort burned. The ITO suggests that insurance was the most likely motive for the anticipated arson. As Inspector Graham admitted, had there been no insurance he would have had to re-evaluate Shearer’s story.

[39] The uncertainty surrounding insurance coverage was relevant information that should have been available to the issuing justice. However, this omission alone is not enough to require the authorization to be set aside.

[40] Even if Det. Elbers had included the uncertainty about the existence of insurance in the ITO, there was other information in the ITO from which it would have been reasonable for the issuing justice to draw the inference that insurance might be in place. An issuing justice is permitted to draw reasonable inferences from stated facts: R. v. Nero, 2016 ONCA 160 (Ont. C.A.), at para. 71. This information includes the existence of a first and second mortgage to Bank of Nova Scotia and Parklane Investments Inc. It could reasonably be inferred that these mortgagees would require proof of valid fire insurance coverage. The ITO also provides information that the High Falls Resort was listed for sale with Century 21 for the price of $3.39M, and included 15 cottages, 8 motel rooms, a main office and reception hall. Again, it is a reasonable inference that an asset of this value would likely be insured. Accordingly, even if the information about the insurance had been included, which was strictly inconclusive, the issuing justice could still assess that there was a basis to believe that Coldin had a financial motive to want one of his buildings destroyed in 2010.

[41] However, the fact that coverage could not be confirmed should still have been included in the ITO in order to assist the issuing justice to assess the totality of the information as it related to the arson allegedly contemplated in 2015.

[42] The second alleged omission is from the psychiatric assessment of Shearer. The ITO provides that the psychiatrist “asserted that there is no major psychiatric reason why he cannot be utilized, on a short-term and limited basis”. Mr. Kayfetz argues that it was important for the court to also know that the psychiatrist cautioned as follows: “he, however, will have to be handled closely as he kept talking about his other function as an agent, which is to rid the community of fentanyl”. Furthermore, Inspector Graham’s note dated June 29, 2015 contains the following statement: “no concern of agent if use is limited intro. Bigger role there may be concerns”. Neither of these concerns were repeated in the ITO.

[43] This additional information adds nothing to the analysis. The ITO sets out the agent’s past and present circumstances, his criminal antecedents and outstanding charges. Based on the investigative plan presented to the issuing justice, the omission of these comments would not have misled. They may, however, be a consideration when looking at the additional question of whether the scope of authority in the ITO was exceeded.

[44] There are additional omissions from the ITO which I find are significant, which I will discuss as I deal with the allegations made by Shearer with respect to his involvement in the fires.

[45] The second area of attack on the ITO was the way in which significant information from the agent regarding his involvement in the 2010 and 2013 fires was conveyed. Specifically, it is argued that the ITO failed to clearly outline inconsistencies in the information provided to the police by Shearer. Had this been done adequately, the defence argues, the issuing justice would not have been left with the impression that the information provided by Shearer was credible.

[46] It cannot be disputed that Shearer’s information is inconsistent. The question is whether the issuing justice could have been misled by how it was conveyed in the affidavit, such that his considerations of the Debot factors were affected.

The 2010 Arson

[47] The ITO initially addresses the alleged crimes at paragraphs 5-7, as follows:

5. This is an unsourced overview of the investigation known as Project Dareton. This Counsel to Commit Arson investigation commenced after George Shearer approached Detective Constable Randy Graham with information that Brian Coldin, the owner of High Falls Cottage Resort, was attempting to get Shearer to arrange an arson at High Falls Cottage Resort. High Falls Cottage Resort is located in Bracebridge, Ontario. It is a large resort-type property that has privately owned cottages within its boundaries. In the material I have read, I have seen many variations of the High Falls name. I checked the website www.highfalls.ca and learned that the proper name is High Falls Cottage Resort and Water Park. For the purposes of this paper, I will remain consistent and refer to it as High Falls Cottage Resort.

6. Shearer told police that he had arranged two previous fires, in 2010 and 2013, on behalf of Coldin at High Falls Cottage Resort. In addition to the two fires, three attempted arsons have been discovered during the same time frame. Shearer has told Coldin that because he had not been compensated for the two previous fires, Coldin needed to make arrangements for this fire on his own.

7. In the previous arrangement, Coldin was to pay Shearer $5,000 for the first fire. When Coldin did not come up with the money, Shearer was forced to pay persons representing the arsonist. Because Shearer had no money, he paid the persons in marijuana from his own supply. Shearer has agreed to become a police agent and introduce an undercover officer to Coldin. This undercover officer will be introduced as the proposed arsonist.

[48] These statements could have misled the justice in a material way right from the outset. There is misinformation given about the privately-owned cottages being within the boundaries of the resort. As set out in paragraph 5 of the ITO, the affiant describes High Falls Cottage resort as a “large resort-type property that has privately owned cottages within its boundaries”. That is not the case. The privately-owned cottages share common property lines with the resort, but they are not within its boundaries. As correctly explained in the ITO, they are accessed by the right-of-way crossing the resort property.

[49] The reason that it is important not to blur the events occurring on the resort versus at the privately-owned cottages is that there was no financial motivation alleged in the ITO for Mr. Coldin to burn down his neighbour’s cottages. Financial gain was the alleged motivation for the 2010 fire in the cabin on the resort. But a different motivation underlies the officer’s belief that Coldin conspired with Shearer in 2013.

[50] Paragraph 6 of the ITO is therefore incorrect. The 2013 Seegar fire was not at the resort. Nor was the attempted arson at the Walker cottage.

[51] This mistake is repeated. Under “History and Chronology of the Investigation” the ITO states at paragraph 23:

The information contained in this Affidavit relates to the investigation of Brian Coldin and his request of George Shearer to have a building burned at High Falls Cottage Resort. Also under investigation are two previous suspicious fires, one of which was classified as arson, that have taken place at Coldin’s resort. The goal of this investigation is to gather information regarding his attempts to have another building at the premises burned.

[52] Paragraph 23 is incorrect because there have not been “two previous suspicious fires … that have taken place at Coldin’s resort”. As the ITO describes, other than the 2010 fire, the only other fire was the one occurring at the Seegar cottage.

[53] At paragraph 34 the affiant indicates that he reviewed a map provided by the District of Muskoka Geographic Information Services showing that there are five private properties within the property boundaries of High Falls Cottage Resort. This map was attached to the ITO, but the officer’s interpretation of it is incorrect.

[54] Before the affiant begins to discuss the 2013 fire at the Seegar cottage, the heading deceptively reads “Fire #2 - 2013 at High Falls Cottage Resort”. Similarly, the heading “Arson Attempt #3 - 2013 at High Falls Cottage Resort” appears before the affiant’s description of the discovery in the crawlspace under the Walker cottage. Neither of these events occurred on resort property.

[55] This mistake is full-blown in paragraph 38 of the ITO, which states:

Since 2010, there have been two fires that caused damage and three suspected arsons that caused damage on the property of High Falls Cottage Resort. As detailed below, the Office of the Fire Marshal conducted investigations into the two fires that caused damage, one in 2010 and the other in 2013. The 2010 fire was found to be arson. As a result of this fire, Coldin was paid $40,786 for the building loss and $16,906 for content loss. These amounts total $57,692. The 2013 fire was declared “undetermined - unable to establish origin”.

[56] This mischaracterization of the location of the 2013 events is particularly problematic in paragraph 38, where it is tied in with a description of the amounts received by Coldin for the 2010 fire loss. The ITO attempts to link these events together by erroneously stating that they all occurred on resort property. These misstatements make innocent coincidence seem less likely.

[57] I am aware that the affidavit must be considered as a whole and that a microscopic examination of individual components of the ITO are not permitted on a Garofoli review: Nero, at para. 84. Applying that principle, the ITO contains enough additional information for the justice to have gained an understanding that the privately-owned cottages are just that, and that Coldin has no ownership interest in them. Yet the statements are false and tend to paint a picture of repeated suspicious wrong-doing on the resort property. After much deliberation, I do not consider it necessary for the statements to be excised on review.

[58] The ITO then goes on to provide a description of the investigation into the 2010 fire in the cabin on the resort (#22), and the discovery of the attempted arsons in the two adjacent cabins (#20 and #21). Following the descriptions of the fires, the affiant summarizes the comments made by Shearer during his contact with police.

[59] The ITO also contains a significant omission with respect to the 2010 fire. As Shearer reported in his KGB statement, it was Coldin himself who was responsible for the police being recalled to the scene after discovering the signs of the arson attempts in the adjacent cabins. The ITO makes no reference to this fact.

[60] Appendix A shows that Shearer has provided several versions of what happened with respect to the 2010 arson:

(a) In November, 2014 Shearer told Det. Randy Graham that Coldin paid Hells Angels members to burn down cottages at his resort. Shearer conveyed that Coldin called him, Shearer gave him a name to contact to burn the cottages, and the cottages burned. On this version of events, Coldin would have dealt with the arsonist directly.

(b) Later he told Det. Graham that Coldin had been calling to “get the guys that burned the cabin for him to do it again”. In the version he provided during his KGB statement, Shearer’s role in 2010 was lining somebody up to do it. Shearer asked his friend for the phone number of somebody who could do this. Shearer then received a call, he met the person, said it was a burn and drew a map. In his lifestyle statement he provided a more extensive version, relaying that he met two individuals on two separate occasions after a friend gave him a number. He did not know either of these individuals. The first time he met a guy and gave him a drawing. On another occasion he met a second guy at Home Depot, after his friend gave him a number and said to call to make an arrangement. There is also an obvious inconsistency here with respect to whether Shearer received a call or placed a call to initiate the crime in 2010.

(c) Despite first telling Det. Marshall that the Hells Angels were giving Terrence Macdonald a hard time, during his lifestyle statement he changed that completely to deny that they were approaching Terrence Macdonald, saying instead they were giving Coldin a hard time

(d) He has given divergent payment amounts, first saying that Coldin owed the arsonist $9,000 for the job but was not paying, and that Shearer was on the hook for making the connection. On June 22, 2015 the details about the payment arrangement changed. The original deal was that Coldin was to pay $6,000 to Shearer, and Shearer was going to pay $5,000 to the unknown associates for burning the cottages. In his KGB statement Shearer said Coldin was to pay a total of $6,000 for the arson. Of that $6,000 the arsonist was to get $5,000 for burning the cottages down and Shearer was to get $1,000 for making the arrangements. But in his lifestyle statement Shearer said he was expecting to get paid $5,000 which the arsonist would receive after he had been paid. Shearer said that he changed “it” (the additional $1,000), after he didn’t get paid, but he never told Coldin

(e) He first said he had paid most of the money to burn the cabin. Shearer later told Det. Graham that he paid the arsonists in marijuana for the 2010 job, and that Coldin still owed Shearer for the arsonist’s payment. According to Shearer, despite being out of product and unpaid, he then asked Coldin what he wanted done now and Coldin said the first one “down there” and mentioned that the woman was a “real bitch”.

(f) He first said that a year after the cottage burned an unknown male came to Shearer’s home and started asking him for the money for the job. But in his KGB statement he said that there were two males, not one, that attended his residence to collect.

(g) At no time during the KGB or lifestyle statements does Shearer say that the person or persons he met or the alleged arsonists were Hells Angels as conveyed to Det. Graham in 2013. Although questioned about their appearance, he could not even definitively say whether they were associated with any gangs or that they were bikers, and saw no patches on the individuals he met.

(h) Any discrepancies between what he told Det. Graham on earlier occasions and his later statements were explained by Shearer as being recording mistakes made by Det. Graham.

[61] These differing versions are grossly simplified in paragraph 7 of the ITO, which advised the issuing justice that Coldin was to pay Shearer $5,000 for the first fire. When Coldin did not come up with the money, Shearer was forced to pay persons representing the arsonist. Because Shearer had no money, he paid the persons in marijuana from his own supply.

[62] Further, despite all these inconsistencies, at paragraph 145 of the ITO the affiant writes only:

Shearer has provided two explanations of how the arrangements for the first fire took place. After seeking out a friend, he has said that he called a number he was provided, and has also said that he received a call to meet someone. Despite Shearer’s inability to recall how the meeting was arranged, I think the important thing to take from the statements is Shearer’s admission to arranging for the arsonist.

[63] This sentence is misleading because it sought to draw the attention of the justice to only one of many inconsistencies. Shearer’s “admission” to arranging for the arsonist is not the only important thing in a scenario where it is essential to question whether he is providing believable information. What is important is whether his story is credible and reliable.

[64] None of these inconsistencies are laid out in the ITO in the section where the Debot criteria are discussed, other than the single line “Shearer has varying degrees of recalling information”.

The 2013 Fire and Attempted Arson

[65] I now turn to the 2013 Seegar cottage fire and the arson attempt found under the Walker cottage.

[66] The ITO provides the cause of the 2013 fire could not be determined, and the Centre of Forensic Sciences did not find any volatile ignitable materials on the exhibits seized from the structure. The objective evidence does not suggest that a crime occurred.

[67] The ITO appears to try to advance the proposition that Coldin would have a motive to burn these cottages by an entire section titled “History with Neighbours”. The affiant lists the number of calls for service relating to the municipal addresses of the cottages. Although the affiant states that he believes that the volume of the previous incidents “provides a background that captures the nature of the relationship between Coldin and his neighbours”, no details are provided. The description of the calls states only that they “involved neighbour disputes”. There is nothing in the relevant paragraph of the ITO, paragraph 37, that explicitly states or from which can be inferred that these disputes are all between Coldin and his neighbours. Further, when interviewed Mr. Walker told the police that he “had no suspects and has an amicable relationship with all of his neighbours”.

[68] Of particular relevance, the same paragraph notes that there were only three calls for service from 76 Fallsview Road, which is the Seegar cottage. One of these calls was for the fire. When interviewed by the police, Seegar told the investigating officer that there was a road allowance issue and that the lawyers were trying to “register the property” and that “papers were to be served on Brian Coldin recently about it”. Seegar’s father said that Coldin wanted to purchase the cottage but he had refused. No further details are provided about either of these matters, even though they are obviously included to suggest that Coldin would have a motive to commit arson.

[69] That is the extent of the information available for the issuing justice to assess whether there are objectively reasonable grounds to believe that Coldin had motive and intent to set fire to the Seegar cottage. As for the affiant’s personal belief, he simply says at para. 208 that, based on the information contained in his affidavit, he believes that Coldin asked Shearer to arrange two previous fires on his behalf.

[70] Additionally, there is a material omission. ITO does not include any of the information conveyed by Shearer in his KGB statement about his initial thought that Coldin wanted Anita Ramsay’s cottage burned when Coldin talked about the “real bitch”, or that Coldin had had “zillions of problems” with her.

[71] Anita Ramsay is mentioned at paragraph 31 of the ITO, where the affiant notes that there are three different instruments (in the Land Registry records) relating to disputes over right-of-way access between three different parties: Linda Johnston, Anita Ramsay and Jamie Ann Morrison and 1387881 Ontario Inc. The latter is Coldin’s company, which operates the resort and is the registered owner of the resort property. The ITO notes that the instruments are all dated May 4, 2004. No particulars were given to substantiate these “disputes” that were supposedly evidenced by instruments that were at that time 11 years old.

[72] There is another reference to Anita Ramsay at paragraph 61 of the ITO, where one of the cottage owners, Barry Street, reported that Coldin was ranting about Anita Ramsay, and that Coldin told him that his electrician had offered to burn down her cottage for him. Street said that Coldin clarified that he did not tell the electrician to do it.

[73] The information available in the ITO establishes that Ken Shearer conveyed information to the police about his involvement in the 2013 events for the first time on July 1, 2015 when he gave his KGB statement. Despite the numerous opportunities that Shearer had to mention this to Det. Graham in the preceding month, the affidant drew no attention to that delayed disclosure. Instead, Shearer’s disclosure of his involvement in the two fires is described in para. 6 as occurring simultaneously: “Shearer told police that he had arranged two previous fires, in 2010 and 2013, on behalf of Coldin…”.

[74] In his material, Mr. Kayfetz argues repeatedly that the police knew in 2015, and should have explicitly stated in the ITO, that Shearer’s information about the 2013 fire could not have been factually correct. But that knowledge, at least as of the date the ITO was sworn, has not been established on the evidence.

[75] When Shearer gave his lifestyle statement, his handlers brought up the timing of the Seegar and Walker events, asking Shearer whether those two fires were done at the same time. Shearer’s answer indicates that he was hypothesizing that the arsonist misunderstood his instruction, which was to burn the “first one”, such that the arsonists had initially attempted to start the fire at the wrong cottage. All of this is contained in the ITO. The timing of the 2013 fire at the Seeger cottage was correctly stated as occurring on July 27, 2013. With respect to the discovery by the Walkers of an attempted burn in their crawlspace, it is noted in the ITO that the Walkers made this discovery on November 30, 2013, the date that it was reported to the police. The additional information in the ITO was that the gas can found by Mr. Walker in the crawlspace was normally kept in a shed and no one had been at the cottage since October 6, 2013.

[76] The source of the affiant’s information about the Walker attempt derives from the General Occurrence Report authored by Officer Gilbert. Constable Gilbert testified at trial. Her testimony did not add any additional facts to this scenario. The General Occurrence Report was not tendered, nor was an affidavit sworn by Mr. Walker that was referred to by Mr. Kayfetz in his application. Although Mr. Kayfetz argues otherwise, the evidence provided by Constable Gilbert at trial does not firmly establish that the attempt on the Walker cottage occurred well after the Seeger fire in July. It is also clear from Inspector Marshall’s trial testimony that he was unaware of when the attempt on the Walker cottage occurred in relation to the Seeger fire.

[77] During the trial an Agreed Statement of Facts was filed. That exhibit provides additional information about the timing of the discovery of the Walker attempt. These additional facts establish that the last time Mr. Walker saw the gas can that he found in the crawlspace was on October 6, 2013 and at that time it was in his shed. When the Walkers attended their cottage for the purpose of closing it down for the season on November 30, 2013, it was then that Mr. Walker noticed that the door to the crawlspace under the cottage was open. These additional facts tend to establish that the Walker attempt occurred several months after the Seegar fire, leaving it unconnected to the 2013 Seegar fire in the way surmised by Shearer and characterized in the ITO.

[78] I am not aware how that information was obtained from Walker, or when, but it is not in the documents available when the ITO was created. The fact remains that the evidence that was available to the police at the time the ITO was sworn does not establish that the police knew that these two events were temporally unrelated and had likely occurred in reverse order from that described in the ITO.

The Proposed 2015 Arson

[79] Shearer told police that Coldin had approached him again to arrange for an arson, as set out in paragraphs 5 and 6 of the ITO. In his KGB statement, Shearer detailed that Coldin had told him that he wanted the “main” building on the resort burned, and that he had moved all of his belongings out of the residence and into the apartment above the office. He advised Shearer that the main building was prepped and ready with the doors unlocked and he would be away for a week. Shearer said that the main house is on the left-hand side, as soon as you get to the gate on the property.

[80] Shearer indicated to Det. Graham on June 21, 2015 that Coldin told him he was going to be away “this week”, indicating that this would be a good time for it to happen. Shearer reported that Coldin said that “it’s all ready to go”. Yet the detective’s notes record that Coldin called Shearer to come over to the resort on June 24, and Shearer saw Coldin on June 25 at Shearer’s house, on June 29 in a restaurant and on June 30 at the resort. The June 29 note indicates that “Shearer hasn’t been out to see Coldin yet”. The information about seeing Coldin and his girlfriend in a restaurant on June 29 is not contained in the ITO.

[81] On June 22, 2015, Shearer told Detective Graham that about two months earlier Coldin started to talk about finding someone to burn down the main house and office. In his lifestyle statement Shearer said “that must’ve been an error it was just the main house not the office”.

[82] In para. 158 of the ITO the affiant sets out information intended to corroborate Shearer’s information about the contemplated arson:

Sergeant Selvage attended High Falls Cottage Resort on June 28^th, 2015. He stated that the building where he has known Coldin to reside in the past was in darkness. Coldin was in a second-floor apartment above the main office. This apartment had two couches and a large screen television. This is consistent with Coldin moving his belongings out of his past residence.

[83] The affiant makes no other statements about his belief that a crime is going to be committed other than at para. 208:

Based on the information contained in this affidavit, I believe that Brian Coldin asked George Shearer to arrange to previous arsons on his behalf. I believe that Coldin has recently asked Shearer to arrange a third one.

The Debot Factors

[84] It is important to understand how the Debot criteria were addressed in the ITO. Det. Elbers outlined them as follows:

Compelling Nature of the Information

• I believe the information provided by George Shearer is compelling. It is first-hand information directly from Brian Coldin. The information is compelling because Shearer has admitted his role in past fires and other crimes, putting himself in jeopardy of being charged. Shearer has been a conspirator with Coldin in committing previous arsons. Shearer’s approach to police following the request from Coldin to assist in committing another arson speaks to the compelling nature of the information.

Credibility of George Shearer, from a positive perspective

• Shearer has come forward voluntarily and provided information with no guarantee of anonymity

• during a psychiatric assessment, there were no major psychiatric reasons why Shearer could not be utilized on a short-term and limited basis for the purpose of this project

• Shearer has completed the assessment required to attain agent status for an OPP investigation, which included an interview related to his upbringing, lifestyle and past criminal transgressions, drug and alcohol use. During this interview Shearer was very candid, admitting to the commission of criminal offences for which he has never been arrested or charged

• Shearer provided a detailed statement, under oath and admitted to arranging to previous arsons. The fact that the statement was taken under oath lends credibility to it

• despite his lengthy criminal record, Shearer has never been convicted of perjury or public mischief

• Shearer has agreed to act as a police agent, knowing his communications with the target of the investigation will be recorded. If his information was not truthful, I do not think he would agree to having his information tested in this nature

• Shearer understands that he may have to testify in court and that his identity and position within the investigation will be disclosed

Credibility of George Shearer, from a negative perspective

• Shearer does have an extensive criminal record with a 1986 conviction for obstruct police. He has obstruct peace officer and obstruct justice charges that were marked withdrawn in 1977 and 1988 respectively

• in the early 80s, Shearer has admitted to being part of an operation that smuggled drugs from Jamaica to Montréal. He has been involved in a violent home invasion where someone was tied up and assaulted. He has also threatened another person with a firearm and assaulted someone who stole his marijuana plants

• in early July 2015, Shearer was convicted of possession of marijuana and cannabis resin. He has an upcoming trial scheduled for his refusal to provide a breath sample

• Shearer has admitted to smoking 15-20 joints a day of marijuana and has admitted to growing marijuana

• Shearer has varying degrees of recalling information

• Shearer has provided more than one motivation for his involvement. He has expressed a dislike for the target of the investigation, Brian Coldin. Coldin has ripped him off and got him in trouble. Shearer has agreed it is revenge

• Shearer will receive financial compensation. Some may view this as a negative trait; however, a person motivated by money is aware they must provide accurate and reliable information in order to meet the requirements of the agreement and receive full payment.

Corroboration of the Information Provided by Shearer

• Many details provided by Shearer have been corroborated. Most significantly, Shearer talked about the previous fires at High Falls Cottage Resort. I can corroborate the information provided by Shearer regarding the fires he arranged in 2010 and 2013. Shearer has provided details of his observations of being at the arson after the police left

• Shearer provided information about these incidents in the statement taken under oath after he acknowledged a detailed warning about making a false statement. The fact that this statement was taken under oath lends credibility to it

• Shearer was aware of money that Coldin received from the previous fire. I know he was paid $40,786 for the building loss and $16,906 for content loss. These amounts total $57,692

• Shearer and Coldin’s relationship provides corroboration to the events detailed. As recent as late June 2015, Shearer loaned him money, helped him with his hot tub and was aware of Coldin changing his cellular phone number. He has detailed that they have been friends for some time. Their relationship has survived, despite the past fires that occurred at the business

• Sergeant Selvage attended High Falls Cottage Resort on June 28, 2015. He stated that the building where he has known Coldin to reside in the past was in darkness. Coldin was in a second-floor apartment above the main office. This apartment had two couches and a large screen television. This is consistent with Coldin moving his belongings out of his past residence

Analysis of the Debot Factors

[85] I will deal first with credibility.

[86] As set out above, the positives and negatives of Shearer’s credibility are listed at paragraph 153 of the ITO, where the affiant suggests that the details listed should be considered.

[87] As previously stated, none of the inconsistencies in Shearer’s statements that should have been apparent to Det. Elbers as of July 29, 2015 were listed.

[88] Even though most of the various pieces of conflicting information are contained in other sections spread out throughout the ITO and presumed to have been read by the issuing justice, in the interests of full, frank, clear and concise disclosure, those inconsistencies should have been drawn to the attention of the issuing justice at this most obvious point in the ITO.

[89] The affiant makes clear that his affidavit contains information summarized by other police officers. He was not one of the agent’s handlers, did not conduct the KGB or lifestyle statement interviews and appears to have had no direct interaction with the agent. As his affidavit indicates, he was assigned as the Technical Support Branch investigator for Project Dareton on June 22, 2015. Of the eight team meetings held, the briefing summaries show that he attended five. I believe that this has led to some of the problematic ways in which the material was presented. As set out in Araujo, at p. 1015:

Finally, while there is no legal requirement for it, those gathering affidavit material should give consideration to obtaining affidavits directly from those with the best first-hand knowledge of the facts set out therein, like the police officers carrying out the criminal investigation or handling the informers. This would strengthen the material by making it more reliable.

[90] Further, the affiant lists as one of Shearer’s “negatives” his 1986 conviction for obstructing police, and two similar charges that were withdrawn. However, Shearer’s 1987 conviction for conspiracy to commit fraud is not mentioned. This is another crime of dishonesty that should have been drawn to the issuing justice’s attention at this point in the ITO. It was also omitted from a summary of Shearer’s life contained at paragraph 84.

[91] One negative listed is that Shearer has provided more than one motivation for his involvement, expressing a dislike for Coldin and a desire for revenge. Not included is the fact that Shearer has identified two additional motivators: helping to save lives, which makes little sense in this scenario, and recouping his losses. The latter was particularly important given the terms of the service provider agreement, which were set out in another section of the ITO.

[92] The terms of the service provider agreement are that Shearer would receive payments of $100 per week during the operational phase to a maximum of $500. Once the operational phase was concluded or the agreement otherwise terminated by the police, Shearer would receive $4,000. Additional compensation of $6,000 would be paid to Shearer at the conclusion of the prosecution phase if Shearer was not in default. These terms show that Shearer’s compensation during the operational phase did not hinge on an arrest being made. Given the investigative plan, all that Shearer was expected to do was make an introduction between Coldin and the undercover operator. In the circumstances of this case, it is not clear how the affiant’s comments apply, as he wrote: “a person motivated by money is aware they must provide accurate and reliable information in order to meet the requirements of the agreement and receive full payment”. The terms of the service provider agreement show that, at least during the operational phase, Shearer’s payment was not contingent on truthful statements or an arrest.

[93] Had all the information impacting Shearer’s credibility been summarized in this section of the ITO, as it should have been, it is difficult to imagine that the issuing justice could have reached the conclusion that Shearer was a credible informant. However, I recognize that it is all contained elsewhere in the ITO or its appendices, and there for the issuing justice to have read. Similarly, Shearer’s full criminal record was attached as an appendix, and does list the conviction for conspiracy to commit fraud.

[94] There are some objective, albeit weak, facts supporting Shearer’s credibility, which are that he came forward with no guarantee of anonymity and volunteered to have his conversations with Coldin recorded.

[95] The issuing justice would have had to consider not only the inconsistencies in Shearer’s information, but those aspects of it are incapable of reasonable belief. For example, whether it makes sense that, having been visited by one or more men intent on collecting payment, having had to part with his marijuana and not receiving his $1,000, Shearer would apparently initiate work on the 2013 arson by asking Coldin “what he wanted done now”. He was asked during the lifestyle statement what he believed would have been the end result if he had not made some sort of payment and his answer was “oh I’d get beat up for sure oh yes”. That information is omitted from the ITO and should be added. Second, the issuing justice would have to consider Shearer’s statement about how he was able to swing a deal with these people to have the 2013 fire done for free, despite them not having received their promised cash and having to attend at Shearer’s home to collect on this debt on two occasions. The premise of Shearer’s story was that the 2013 fire would be included in the price of the first, because only one, rather than three cabins were burned the first time as planned.

[96] The issuing justice would have had to consider the inconsistencies in core parts of Shearer’s information, as well as the parts of it that are logically incapable of belief. He would have to consider Shearer’s delay in revealing his role in the 2013 fire, and his poor memory of when that participation took place. He would have to consider that there is no evidence that Shearer has given reliable tips to the police in the past. In the result, the issuing justice would have had to have placed Shearer’s credibility well toward the lower end of the spectrum, which is where it should land.

[97] The totality of the circumstances are to be considered, and strength in one or more of the Debot criteria may overcome weaknesses in the other: Debot, at para. 60; Shivrattan at para. 28. With that in mind, I turn to the issue of corroboration.

[98] The reliability of an informer with whom the police have had no previous dealings was considered in R. v. Zammit (1993), 1993 CanLII 3424 (ON CA), 81 C.C.C. (3d) 112 (Ont. C.A.). Labrosse, J.A. explained that where an informer possesses facts that would be known to anyone familiar with the target of the investigation, this does not make the informer credible with respect to information predicting criminal activity: at p. 121.

[99] In the section of the ITO titled “corroboration of the information provided by Shearer”, Det. Elbers states at para. 154: “Many details provided by Shearer have been corroborated. Most significantly, Shearer talked about the previous fires at High Falls Cottage Resort. I can corroborate the information provided by Shearer regarding the fires he arranged in 2010 and 2013. Shearer has provided details of his observations of being at the arson after the police left”.

[100] What this paragraph misses is that all the details of the 2010 and 2013 fires were within the knowledge of Shearer because of his long-standing relationship with Coldin and his ongoing attendance at the resort. He was there two to three times a week to collect recycling. Shearer described his relationship with Coldin as evolving into friendship; Shearer loaned him money, did odd jobs, helped him with his hot tub, used his hot tub when his back was sore, took his girlfriend there, and was aware of Coldin changing his cellular phone number. Shearer was aware of details such as how Coldin felt about Anita Ramsay, and that his girlfriend’s mother was in the hospital and he would be visiting her. In these circumstances, the timing, details and existence of the fires themselves have little corroborative effect on the question of whether Shearer played the role that he claims. Factually, there is nothing in Shearer’s information about the fires that would have been known only to someone involved in arranging one or more arsons.

[101] The statement at para. 154 of the ITO tries to infer that only someone involved in the arsons could have had the information about them that Shearer possessed.

[102] Further, para. 154 is incorrect in that, while Det. Elbers was able to confirm (not corroborate as he states) the existence of the 2010 and 2013 fires, that does not help in an analysis of corroboration. The ITO does not provide any suggestion from the affiant that he had confirmed any of the information provided by Shearer about his role in arranging the fires at Coldin’s behest.

[103] The affiant points to the fact that Shearer reported a trailer fire occurring on the resort, which had been in the police records, as corroborative information. Again, this is anecdotal information that would have been available to someone attending the resort as frequently as Shearer.

[104] Even the very scant details that Shearer has provided about these crimes has not been independently corroborated. Shearer reported that Coldin said he would leave a red gas can by the cabins at the time of the 2010 fire. No gas can was found at the scene, and in fact the police located two vessels containing minor amounts of gasoline mixed with mineral or biological oil. One was a spring water container and the other was a bleach container.

[105] The fact that Coldin was away at the time of the 2010 fire is a fact that Shearer would easily know given their relationship.

[106] Shearer knew the approximate amount that Coldin received from insurance, but thought that it was for the building and some boats, rather than the building and its contents. But again, for someone who spent significant time in Coldin’s company and with whom he may have discussed financial matters, Shearer’s knowledge of the insurance payout does not signal intimate knowledge of a crime.

[107] Shearer was also present at the scene of the 2010 fire, describing to the police how he entered the two cabins after the police left and observed the evidence of other arson attempts. There is no corroborative value to this information, although it has been included in paragraph 154.

[108] The fact that the 2013 fire occurred in a cottage without electricity is a detail that could easily have been obtained through neighbourhood or resort gossip. Shearer’s statements all make clear that he had a very tenuous grasp on the timing of that fire.

[109] As stated by Di Luca, J. in R. v. Coluccio, 2019 ONSC 4559, at para. 36:

… The assessment of corroboration is case and fact specific. The corroboration need not be about the core criminality revealed in the tip, though as the corroborative information moves away from the core criminality toward facts that are commonly known or readily discovered, the value or corroborative effect of the information may be diminished; see R. v. Caissey, 2008 SCC 65 (S.C.C.), affirming 2007 ABCA 380 (Alta. C.A.) at para. 25 R. v. Eftekhari, 2012 ONSC 5140 (Ont. S.C.J.) at para. 24 and R. v. Boussoulas, 2014 ONSC 5542 (Ont. S.C. J.), at para. 35.

[110] The existence of the 2013 fire and attempted arson provides no corroboration that the 2010 fire was arranged by Shearer and Coldin. Despite the misleading statements in the ITO about all of these events taking part at the High Falls Resort, they did not. The only link between them comes from Shearer’s information.

[111] When Shearer made his second contact with Det. Graham about Coldin on June 5, 2015 the information he conveyed was that Coldin wanted his main building torched, that there was a $5,000 deductible on the building for fire, and that Coldin wanted Shearer to call people he met in jail to have them contact Shearer and burn Coldin’s building. This information came totally from Shearer. The only part of that information that could be independently verified, being the existence of insurance, has not been.

[112] With respect to the contemplated fire in 2015, the only evidence of corroboration comes from Sgt. Selvedge, who saw the building in darkness and found Coldin in the apartment over the main office, which had two couches and a large screen television. This is not evidence that the target cottage was empty of valuables, as its “darkness” suggests only that lights were not on and the officer could not see its interior. The fact that the apartment had some furnishings and that Coldin was found in it neither establishes that Coldin had moved into it or, more significantly, is reasonably probative of a contemplated arson.

[113] Further, Shearer’s information on June 22, 2015 that Coldin was going away “this week” and wanted the job done at that time is contradicted by Shearer’s further information that Coldin remained in the area on June 24, 25, 29 and 30.

[114] In the circumstances of this case, the existence of the 2010 and 2013 fires cannot be used as any degree of corroboration. There is no other corroboration of Shearer’s information about Coldin’s criminal behaviour. Corroboration is non-existent and no reliance could be placed by the issuing justice on the affiant’s belief that corroboration exists on the core parts of Shearer’s information.

[115] With minimal credibility and no corroboration, the issuing justice would have to be duly impressed by the compelling nature of the information to be in a position to issue the authorization.

[116] However, the compelling nature of the information is not strong. In the single paragraph in the ITO dealing with the compelling nature of Shearer’s evidence, the affiant finds it so in part because it is first-hand information from Coldin. This assumes that Shearer is telling the truth about what Coldin said, which has a low guarantee in light of the credibility problems presented by Shearer.

[117] The paragraph also states that the information is compelling because Shearer has admitted to his role in past fires and other crimes, putting himself in jeopardy of being charged. While that may be true, Shearer presented the option to act as a police agent from his very first approach to Det. Graham. In that initial 2013 discussion, Shearer demanded $10,000 for his participation. This must be weighed together with the various motivations suggested, one of which is his animus toward Coldin, and being compensated for his losses. This motivation would have been clouded for the issuing justice had the additional motivation (helping to save lives), been included in the ITO.

[118] The paragraph also states that the information is compelling because Shearer has been a conspirator with Coldin in committing previous arsons. This statement is conclusory and, as I have found, about which there is no corroboration.

[119] Last, the affiant states that Shearer’s approach to police following the request from Coldin to assist in committing another arson speaks to the compelling nature of the information. Given his various motivations, his own admitted need for money and the terms of the service provider agreement, it is not clear that this information could be compelling.

[120] In assessing the compelling nature of the information regarding the 2010 fire, the issuing justice had evidence of financial motive from the insurance payout. But the information omitted from the ITO, which was that it was Coldin who drew the signs of the arson attempts in the adjacent cabins to the attention of the authorities, must now be included in this consideration. Had it been included, the issuing justice would have had to consider whether someone who arranges an arson on his own property is likely to call the authorities to engage them in further investigation of the crime. This information erodes the reasonable belief of the affiant that Coldin had a part in arranging the 2010 fire.

[121] In assessing the compelling nature of the information about the 2013 fire, the issuing justice would have to consider the lack of compelling reason on Coldin’s part to arrange the Seegar fire, and the lack of any suspect in the mind of Walker. He would have to consider that the only specific information about problems between Seegar and Coldin were a legal dispute over the right of way and a denied request to purchase the cottage. The information about these disputes was vague and did not suggest criminality. Information omitted from the ITO, which was that that the neighbour with whom Coldin had the most problems was Anita Ramsay, and whom Shearer first identified as the likely “target” of the 2013 fire, must be added to the analysis.

[122] In assessing the compelling nature of the information regarding alleged future arson contemplated by Coldin, the issuing justice would consider the absence of reliable evidence that Coldin moved out of the main building and into the apartment over the office. The fact that the police had not established insurance coverage in 2015 should be taken into account. In the final analysis, all that could be offered to the issuing justice was Shearer’s statement that Coldin was asking Shearer to arrange another arson. That bald statement cannot provide reasonable grounds to believe that Coldin was planning an arson on his resort.

[123] Taken all together, I am not satisfied that the ITO, as amplified by the information added on review, reveals a basis on which the issuing justice could have been satisfied with the compelling nature of Shearer’s information about fires, past or future.

[124] In my view, a correct application of the Debot criteria could not lead the issuing justice, acting judicially, to an assessment that the information from Shearer was sufficiently reliable to justify the authorization and warrants requested. The totality of the circumstances could not allow the conclusion that the statutory prerequisite of reasonable grounds to believe required by s. 184.2(3) had been met. There was no reliable evidence that might reasonably be believed, either that crimes had been committed or were being contemplated, or that the authorization would lead to further evidence of such past and future crimes, on the basis of which the authorization and warrants could issue.

[125] It follows that the search was unreasonable within the meaning of s. 8 of the Charter. This leads to the question of admissibility and the need to consider whether the evidence obtained by the authorization should be excluded under s. 24(2) of the Charter.

Section 24(2) Analysis

[126] The first prong of the test set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 74, requires consideration of the seriousness of the Charter-infringing conduct. Significantly, the police did first seek out the authorization, and an independent judicial officer did authorize the search. In these circumstances, the approach that should be taken is to look at the ITO and consider first if it is misleading in any way. If so, the court should then consider where it lies on the continuum from the intentional use of false and misleading information at one end to mere inadvertence at the other end.: Rocha, at para. 29.

[127] There is nothing to suggest intentional police misconduct, but there were also items of information that tended to discount Coldin’s involvement, as I have pointed out, that were omitted.

[128] The affiant knew there was a duty due to the ex parte nature of the proceeding to place all information that impacted on reasonable grounds before the issuing justice, even if it did not support the authorization. He failed to do that with respect to both the insurance and Coldin’s participation after the 2010 fire, even though he knew or should have been aware of these details. Further, the affiant failed to give due attention to the real nature of the “corroborative” evidence, which cannot be characterized as corroborative at all. Had the police done so, that exercise should have led them to give closer scrutiny to the problems with Shearer’s varying versions and the impact on his credibility. Conversely, while the police do not have to verify every piece of information at the investigative stage, where there are serious problems with the credibility of the informant it behooves the police to give greater attention to whether evidence of corroboration exists. I find that the affiant and other involved investigators failed to do so. Overall, I find that this first factor weighs slightly toward exclusion.

[129] The second prong of Grant examines the impact of the breach on the Charter-protected interests of the accused. An unreasonable search contrary to s. 8 of the Charter may impact on protected privacy interests: Grant, para. 78. The authorization allowed for intrusive state intervention in the private conversations of Coldin with Shearer, most occurring on the resort property, which was also Coldin’s home. Some occurred in Shearer’s vehicle. Where the resort is concerned, this was a serious intrusion into a place where there is a high expectation of privacy. The evidence obtained then became part of the basis for the search of the apartment over the main office. This factor strongly favours exclusion of the evidence.

[130] In considering the last part of the Grant test, society’s interest in an adjudication on the merits, the Court cautioned that the exclusion of relevant and reliable evidence can undermine the truth-seeking function of the justice system, “thus bringing the administration of justice into disrepute”: Grant, at para. 81. The court will also consider the importance of the evidence: R. v. Grant, at para. 83. In this case the exclusion of the wiretap evidence will likely end the prosecution’s case and result in acquittal. Having said that, the evidence obtained by the wiretap during the plays is far from conclusive on the issue of Coldin’s guilt. Still, given the impact on the prosecution’s case, this prong favours inclusion.

[131] The balancing of the various s. 24(2) factors requires a “qualitative” assessment: Grant, at para. 140.

[132] I find that this case is very similar to Rocha, in which a violation of s. 8 occurred. The court concluded, at para. 41:

In my view, both the seriousness of the violation and impact on the Charter-protected interests favour exclusion. As to the latter, this was a serious intrusion into a domain that carries a very high expectation of privacy. As to the former, the apparent good faith of the police in resorting to the warrant process is undermined by the misleading and careless wording of the ITO.

[133] This comment reflects my assessment of this case, but to which I would add the failure of the police to turn their minds to the weakness of the corroborative evidence, the need for which was significantly heightened by Shearer’s lack of credibility raised by his conflicting accounts. There is no evidence that Shearer had provided reliable tips to the police in the past, which should have caused them to have increased vigilance. This further weighs in favour of excluding the evidence. The fact that Coldin’s privacy interests were so seriously invaded on the basis of unreliable and uncorroborated evidence tips the scales in terms of exclusion.

[134] Accordingly, this court orders that the evidence obtained from the authorization granted by Justice Harris on July 31, 2015 shall be excluded.

Executing the Intercept

[135] The failure of the police to adhere to the conditions in a warrant may result in a finding that the execution was unreasonable and contrary to s. 8 of the Charter. Here, however, there is no evidence the police exceeded that authorization.

[136] The investigative plan set out in the ITO contained two possible scenarios. The one constant was that Shearer would tell Coldin that he had someone willing to commit the arson on his behalf. An undercover officer would portray the role of the proposed arsonist. It was anticipated that Coldin would meet with this undercover officer for the purpose of discussing his plans to have one of the resort buildings burned down.

[137] In the first scenario Coldin would receive a phone number from Shearer and make a call to the proposed arsonist to discuss meeting in person and finalize the details of the proposed arson. The second possible scenario involved Coldin travelling with Shearer to meet the proposed arsonist at an agreed upon public location.

[138] However, during the first recorded conversation between Coldin and Shearer on August 4, 2015, Shearer informed Coldin that “buddy called” and “we can go to Barrie and meet him halfway just for the arrangements”. As the conversation progressed, Coldin indicated that he did not want to meet directly with this individual.

[139] The investigative team then made the decision to continue to have Shearer meet with Coldin to attempt to elicit evidence about a proposed arson.

[140] There are a further six plays in which recordings are made of the conversation between Shearer and Coldin.

[141] The defence argues that the investigative plan presented to the issuing justice involved Shearer playing the limited role of introducing Coldin to the undercover officer. Given the concerns voiced by the psychiatrist and Det. Graham with respect to the need to handle the agent closely and use him for a limited purpose, it is submitted that the investigation should have halted when it became apparent that Coldin was not willing to meet or speak to the undercover police agent. The defence submits that the evidence obtained as a result of the authorization should be excluded as it went above the scope of the proposed investigative plan.

[142] This argument ignores the fact that video and audio recordings were made of each of the conversations between Shearer and Coldin. All of Shearer’s reports of what Coldin said and did during those conversations can be checked for verification. The handlers videotaped their interactions with Shearer both before and after each play. Mr. Kayfetz does not explain how these later plays have resulted in a breach of s. 8, or even prejudiced the defence.

[143] I cannot find there was an infringement of Mr. Coldin’s s. 8 Charter rights on this basis.

[144] Although not necessary to deal with the second and third application given that both seek the same relief granted in the first, for the sake of completeness I will provide a determination.

Application #2: Failing to Comply with Standards of Conduct

[145] This application is brought on multiple grounds: Ken Shearer was not properly supervised by his handlers because he went to the resort and had contact with Coldin when he was not wearing a wire and not being monitored by his handlers, contrary to the instructions given to him; Shearer was not properly vetted to act as an agent; and, Shearer’s handlers did not report Shearer’s lies to the rest of the investigative team.

[146] Dealing first with the allegation that Shearer was not properly vetted, the evidence of Inspector Graham was that the decision about whether the OPP will engage an individual as an agent is made by a joint management team. That process was set out in the ITO at paragraph 106. Any individual who is being assessed for police agent status in an OPP investigation undergoes a witness protection unit assessment, a police agent lifestyle statement and a criminal activity statement, as well as a psychiatric assessment by a forensic psychiatrist. The ITO discloses the results of these assessment interviews for Shearer. I cannot agree that Shearer was not properly vetted.

[147] With respect to the allegation that Shearer’s handlers failed to report lies or inconsistencies to the rest of the investigative team, what the defence seems to be referring to is that, in the debriefing meetings with the handlers following the “plays”, Shearer discusses scenarios not heard or seen on the recordings. These are submissions that do not support the relief sought. In order to exclude the evidence, the defence would have to show how an unfair trial would result from the admission of this evidence. I am aware that it is the trial judge’s duty to properly exercise his or her judicial discretion to exclude evidence that would result in an unfair trial: R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, at para. 21. As the trial judge, I would have been able to evaluate any differences between the recordings and Shearer’s evidence. Trial fairness would not have been compromised.

[148] The last basis for this application is that after these plays began, the defence alleges that Shearer attended the resort when he was not wearing a wire or being monitored by the police, even though he admitted that he was instructed not to do so.

[149] It is alleged that he attended the resort to continue to collect the recycling. Shearer’s evidence at trial on this point was ambiguous. At one point he testified that during the summer of 2015 preceding Coldin’s arrest he went to the resort to pick up the recycling, sometimes two to three times a day. Shearer was not examined about whether he spoke with Coldin during those attendances. Shearer later testified that the only time he went to the resort was when he was instructed to go there by the police.

[150] Shearer also gave evidence that he used one of the cabins on the resort to occasionally meet up with a female friend. There is some evidence that he arranged with Coldin to have this friend live in one of the cabins on a temporary basis, although Shearer denied that to be true at trial. The information about moving this friend onto the resort was relayed to Det. Graham in a phone call from Shearer dated August 22, 2015; there is no evidence that the detective passed this information on to the rest of the investigative team, even though Det. Graham knew that the next play would take place during the week of August 24, 2015. But Shearer was not examined about how frequently he went to this cabin between August 22 and the date of Coldin’s arrest on September 9, and whether he had any interaction with Coldin on those occasions.

[151] Shearer also attended Coldin’s family reunion at the resort, and he came to the resort to pick up legal documents from Coldin’s spouse and to pick up his own belongings. These events occurred a few days prior to the execution of the search warrant at the resort. Shearer admitted that he did not tell the police about going to pick up the legal documents or his belongings, but claims to have had permission from Det. Marshall to attend the family reunion. Again, Shearer was not examined about what contact or discussions, if any, were had with Coldin during these events.

[152] The defence argues that the protection of the investigation requires the agent not to meet with or speak with the target unless he is being recorded. This protects the integrity of the investigation so that the agent cannot script, direct or otherwise interfere with the investigation at a time when no record exists of those interactions.

[153] While these points are true, in my view the potential for unmonitored interactions would have become part of the facts in this case to be examined in deciding the value of Shearer’s evidence. But the allegation that Shearer is an “uncontrolled agent” is overstated given the lack of evidence regarding his encounters with Coldin during the relevant time period.

[154] For these reasons this application is dismissed.

Application #3: Abusive Police Conduct

[155] This application overlaps entirely with the last application brought by the defence, which seeks to stay the charges due to delayed disclosure. The “abusive conduct” identified in this application all stems from the failure of the OPP to produce all of the “fruits of the investigation” in a timely way. Accordingly, these last two applications will be considered and decided together.

Application #4: Abuse of Process

[156] This application is the continuation of an application originally heard in November, 2018, in which Mr. Coldin was seeking a stay or exclusion of evidence on the basis of alleged police misconduct. In that application, the defence asserted that Det. Graham was knowingly and deliberately blind to the fact that Shearer gave him inconsistent information about Coldin’s contact with an arsonist, that he failed to confront Shearer on his inconsistent statements, and that he was complicit in permitting an unreliable and dishonest person to assist them to collect evidence.

[157] The defence further asserted that Det. Marshall was also knowingly and deliberately blind to the fact that Shearer was dishonest about the information provided to the police regarding the chronology of the arson and the attempted arson the took place on the neighbouring cottages in the summer and fall of 2013. In these reasons I have set out why this court cannot attribute to the police knowledge of the accurate chronology of these events at the time they were being reported by Shearer.

[158] The defence also raised the issue of unrecorded conversations between Shearer and Coldin while Shearer was acting as agent for the police, which I have now dealt with in application #2.

[159] When this application was first argued, I concluded that it would be premature to rule on the motion, without prejudice to the defence seeking a final determination on the motion at the close of the Crown’s case, or at another point in the trial once the evidence had been commenced. In this regard I was guided by the law as set out in R. v. Dikah (1994), 1994 CanLII 8722 (ON CA), 20 C.R.R. (2d) 193 aff’d 1994 CanLII 43 (SCC), [1994] 3 S.C.R. 1020, leave to appeal dismissed; R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680; and R. v. Burke, [2002] S.C.C. 55, [2002] S.C.R. 857.

[160] In that ruling, I concluded that the evidence presented by the defence did not persuade me that a ruling could or should be made at that stage about whether an abuse of process can ultimately be established. The evidence proffered by the defence on that application to show abusive conduct failed to establish police misconduct.

[161] One of the reasons for that conclusion was that I determined that the evidence indicated that the contrast in Shearer’s stories about who gave direction to an arsonist in 2010 arose for the first time on the evidence at the preliminary hearing. I wrote “there is no evidence that the police knew or could have known about such an inconsistency prior to that stage, obviously well after they had used Ken Shearer as their agent”.

[162] What has occurred since that time is that significantly more disclosure has been produced, which is one of the grounds for the renewed application.

[163] The other ground is Mr. Coldin’s assertion that the Crown’s decision to seek a direct indictment after the third day of the preliminary inquiry was done to “protect its key witness” (Shearer), and to stop Coldin, who was self-represented during the preliminary inquiry, from finding further evidence that Shearer had lied under oath to the police. The defence also argues that the Crown did not comply with the mandatory requirement set out in the Crown Practice Memoranda issued by the Attorney General – Crown Law Office that disclosure be complete before seeking a direct indictment.

[164] There is no basis upon which to attribute such motives to Crown counsel. Mr. Flosman, who has been the assigned Crown counsel throughout, explained that the decision to seek a direct indictment arose out of the fact that the presiding judge terminated Coldin’s cross-examination of Shearer on the last day of the preliminary hearing pursuant to s. 537(1.1) of the Code. The justice explained that he was doing so because the cross-examination was repetitive and much of it irrelevant. Coldin had given Mr. Flosman a list of 32 witnesses that he asked to have subpoened for the preliminary hearing, and at least six additional days were being contemplated. The preliminary hearing had already lasted three days and the court and parties were engaged in discussions during the last day that indicated there would be no further dates scheduled before August, 2017. Given all these facts, which are apparent from the transcript, I accept the Crown’s submission that the direct indictment was sought to move this matter forward more expeditiously.

[165] I now turn back to the issue of disclosure.

[166] At an appearance on June 7, 2016, Mr. Flosman advised that disclosure was substantially complete, save and except for a couple of items. However, even at the preliminary inquiry Mr. Coldin took the position that disclosure was not complete, although he was not specific about what he believed to be missing. As of September 29, 2017 Mr. Flosman advised the court that, from the Crown’s perspective, disclosure was complete.

[167] The trial started on February 19, 2019, with the Crown putting in its case on that date and February 20 and 21, April 30, May 1, 2, and 3, 2019. Shearer’s evidence started on April 30.

[168] The following documents were produced by the Crown after the trial began:

(a) The handwritten notes of Det. Randy Graham between November 13, 2014 to July 20, 2015 pertaining to his discussions with the agent Shearer;

(b) The confidential informant debriefing reports (“CIDR”) covering the period November 13, 2014 to July 1, 2015;

The above two documents were disclosed on February 10, 2019.

(c) The interview of Shearer by his handlers on July 15, 2015 in which he was questioned about each of the past fires and Coldin’s request to involve him in having another building burned (the “lifestyle statement”);

(d) The notes of the handlers, Det. Fitzpatrick and Det. Hutton;

(e) The notes of the officer in charge of the investigation, Inspector Martin Graham, for the period June 22, 2015 to October 6, 2015; and,

(f) The Briefing Summaries produced from the briefing meetings of the investigative team for the period June 22, 2015 to August 13, 2015.

[169] In the result, complete disclosure was not made by the Crown until April 16, 2019.

[170] In R. v. Rajalingam, 2003 CarswellOnt 540 (Ont. S.C.), aff’d 2004 CanLII 31362 (ON CA), [2004] 190 O.A.C. 270, a case in which late disclosure after the start of trial resulted in a stay, Whealy, J. stated at para. 18:

Disclosure of material, long in the possession of the Crown, at the last minute, that is, during the trial is the same as no disclosure at all. That is why in R. v. Stinchcombe (1991), 1991 CanLII 45 (SCC), 68 C.C.C. (3d) 1 (S.C.C.), at p. 13-14, Sopinka J. stated:

...that initial disclosure should occur before the accused is called upon to elect the mode of trial or to plead.... Such a request may be made at any time after charge. Provided the request for disclosure has been timely, it should be complied with so as to enable the accused sufficient time before election or plea to consider the information.

[171] Mr. Flosman concedes that Mr. Coldin was entitled to all this information. However, he argues that the timing of the disclosure did not adversely affect Mr. Coldin’s ability to defend against the charges.

[172] Mr. Flosman explained that there are two sets of notes authored by Det. Randy Graham. He had his “regular” notebook and his “confidential informant” notebook, as it is common to segregate the two notebooks to avoid inadvertent disclosure. The regular notes were disclosed many years ago and contain very little in the way of information. During the period of this proceeding Det. Graham was off on medical leave and was not available for consultation about his notes. The police believed they had all of Det. Graham’s notes and that they had been disclosed. It was only later in the proceeding, as a result of the defence’s inquiries, that they discovered the CI notebook.

[173] The argument of the Crown is that a description of the conversations contained within the documents first produced on February 10, 2019 can be found in the ITO and the willstate of Det. Graham, both of which were produced in March, 2017 at the latest. A comparison of the ITO, the willstate of Det. Graham, his handwritten notes, and the CIDR shows that all the same information - not just its substance but the exact information - was available to Mr. Coldin by March, 2017.

[174] Similarly, the Crown argues that the content of the lifestyle statement of George Shearer has been in the hands of defence counsel since the ITO was provided.

[175] The Crown argues that the notes of Dets. Hutton and Fitzpatrick contain the same information that was captured on video in the briefings and debriefings before and after each play. These videos and transcripts were disclosed long before the trial.

[176] The notes of Inspector Graham were produced on March 22, 2019. He testified on May 3, 2019. During the execution of the search warrant a .22 calibre rifle was seized from the main office on the resort. During the testimony of another officer it became clear that the Crown had been mistaken about the identity of the officer who seized that rifle. It turns out that it was Inspector Graham who found the rifle. It was only thereafter, presumably because Inspector Graham would now be required to testify, that it was discovered that his notes had not been disclosed.

[177] With respect to the team Briefing Summaries, they are a record of meetings between the investigators where evidence was discussed and assignments handed out. The Crown argues they are regurgitations of information already in existence and disclosed elsewhere, and not original evidence.

[178] The explanations offered by Crown counsel on behalf of the police for this piecemeal and sloppy disclosure are not satisfactory. A review of the ITO shows that the handwritten notes of Det. Graham between November 13, 2014 to July 20, 2015 pertaining to his discussions with Shearer, the CIDR, and the lifestyle statement are all referenced in its footnotes. How it could be that these central documents were never produced is difficult to understand or justify.

[179] Similarly, late production of the notes of the handlers who dealt directly with the agent, as well as the notes of the Inspector Graham as the officer in charge, is difficult to understand or justify. These officers were obviously central to this investigation, as was Det. Randy Graham.

[180] Finally, the Briefing Summaries contain ongoing information about this investigation as it unfolded that is not located in any other material.

[181] The record in this case shows that Mr. Coldin, while self-represented, had been continuously asking for production of those of these items that he was aware existed, particularly the original notes of Det. Graham. He kept being met with the response that no notes existed, and that Det. Graham played a peripheral role in this investigation. He was told that disclosure was complete. That was obviously incorrect.

[182] Once Mr. Kayfetz was retained in 2018, it was only through his diligence and repeated requests for proper disclosure that these six categories of documents were produced.

[183] In an affidavit filed in support of this application, Mr. Coldin has deposed that:

(a) had he known about the information contained in disclosure he could have better prepared for the preliminary hearing and the trial;

(b) had he known about the conflicting statements of Shearer found in Det. Graham’s notes and CIDR, he could have called Det. Graham as a witness, to question him not only about the conflicts, but also about why he never confronted Shearer regarding those conflicts;

(c) had he known about the lifestyle statement, he could have questioned Shearer’s handlers during the preliminary hearing about why they never confronted Shearer about the factual impossibility of his claim that the attempted arson on the Walker cottage was a “mistake” before the Seegar cottage burned;

(d) had he known there were briefings between the investigative team, he could have questioned Inspector Graham during the preliminary hearing about why no one confronted Shearer about his claim regarding the 2013 fire and attempt;

(e) had he known that Det. Graham had informed other officers at those briefings about Shearer telling him that his brother, Danny, helped to facilitate the alleged arsons, he could have questioned him about this information also;

(f) had he known that Inspector Graham depended on Shearer’s statement that he was seeking to have another building burned down for insurance, he could have cross-examined Shearer during the preliminary hearing about what knowledge he had about insurance;

(g) had he known that Shearer had informed his handlers that his motive in coming to the police was revenge, he could have questioned them about that motive; and,

(h) had he known that Shearer told Det. Graham that his brother helped facilitate the arson, he could have questioned Shearer about this during the preliminary hearing.

[184] I find that these statements involving Shearer’s brother, Danny, are factually incorrect. The only reference in the ITO about Shearer’s brother’s involvement in any of these fires is found at paragraph 96 of the ITO where Shearer’s remarks to Det. Graham on June 21, 2015 are summarized: “Coldin thought that the guy that burned the cottages last time was coming to burn the house because Shearer told him that Shearer’s brother could set it up and the guy wanted to come and stay at the resort for a little while for a few days”. This statement is an accurate reflection of Det. Graham’s notes. The statement does not reflect what Shearer alleges to have happened, but rather what Shearer told Coldin after becoming an agent. And there is nothing additional in the briefing summaries about Danny.

[185] In R. c. Piccirilli, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 30-47, the Supreme Court reviewed the law of abuse of process and stay of proceedings, starting with its decision in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411. Generally, there are two categories of cases, the first or “main” category, where state conduct compromises the fairness of an accused’s trial, and the second or “residual” category, occurring where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process.

[186] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

1. There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”;

2. There must be no alternative remedy capable of redressing the prejudice; and

3. Where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”.

[187] I agree with the Crown’s submission that all the relevant content of the six categories of documents is repeated in the ITO, and the information therefore available to Mr. Coldin, as far back as the preliminary hearing, other than the Briefing Notes. The Briefing Notes summarize information from officers found elsewhere and otherwise record the investigation steps and plan. Most importantly, however, the information about the authorities’ search for insurance is not contained in the ITO or in any of the documents disclosed to Coldin prior to the trial.

[188] This information might have been important to mounting a defence. The entire theory of the police, based primarily on the information provided by Shearer, was that Coldin was in dire need of money. In the Briefing Summary dated July 20, 2015, information from Inspector Graham was summarized as follows: “it is believed through the agent that Coldin is still looking for someone to burn all or part of his resort down so he can profit from it”. The issue of insurance was raised during the briefing meetings, for example on June 22, 2015. Further, in the Briefing Summary of August 4, 2015 the following information is attributed to Inspector Graham: “evidence that business is poor would support this request and evidence of motive as to why he wants his business burned down”.

[189] It is apparent from Inspector Graham’s notes that he made inquiries or received information about insurance on June 22 and 24, July 16 and 29, 2015. As he testified at trial, as of July 29, 2015 the police had still not been able to locate the particulars of insurance.

[190] Again, there is nothing mentioned in the ITO about the inconclusive attempts to find out whether the buildings were insured. Nor is this information about the presence or absence of insurance in 2015 contained in any of the other disclosure that was provided before the trial began.

[191] I find that this information, both in the Inspector’s notes and in the Briefing Reports, is relevant to one of the primary issues in this case, which is whether Coldin would have had the ascribed motive to undertake conspiracy to commit arson. As stated by Laskin, J. in R. v. Dulude (2004), 2004 CanLII 30967 (ON CA), 122 C.R.R. (2d) 165, at para. 22, the case law from the Supreme Court of Canada has repeatedly emphasized that the relevance threshold is very low. In this case I find that threshold has been met.

[192] Applying the test confirmed in Picirilli, a stay because of the Crown’s failure to disclose relevant evidence is justified only if the non-disclosure irreparably prejudices either the accused’s ability to make full answer and defence, or the integrity of the administration of justice.

[193] I must recognize that a stay is a remedy of last resort, rarely granted because both the accused and the community are entitled to a verdict on the merits.

[194] This is a case that invokes the main category, where state conduct compromises the fairness of an accused’s trial. Both at the preliminary hearing and the trial, Mr. Coldin had the right to know the importance played by the existence of insurance and the resort’s financial position in the basis of the charges and the Crown’s theory of the case so that he could prepare his defence. Still, I find that his ability to make full answer and defence was not irreparably prejudiced by this late disclosure.

[195] I find that there was enough information in the ITO to alert Coldin to the fact that the police believed his motivations to be financial. Paragraph 38 reports on the amount of money received by Coldin from the first cabin fire under a policy held by Coldin in 2010. At paragraph 94 is information from Shearer that Coldin allegedly told him that he wanted the main building torched in 2015 because it was “beat”, needed a new furnace, and that Coldin has a $5,000 deductible on the building for fire. At paragraphs 95 and 97 there is more information about the 2010 insurance proceeds. At paragraph 123, during his KGB statement Shearer, in speaking of the contemplated arson, is quoted as saying “obviously it’s for money”. Accordingly, it cannot be said that Coldin’s s. 7 Charter rights were violated, as he was sufficiently alerted to the issue to be able to know that such motivation was part of the Crown’s case.

[196] If I am incorrect about the lack of violation of Mr. Coldin’s s. 7 rights, I will consider the second part of the test, which is whether another remedy short of a stay is readily available to alleviate any prejudice. If an adjournment would be enough to remedy this prejudice, I must consider how any adjournment would impact on the integrity of the justice system.

[197] Mr. Coldin was charged on September 5, 2015. He has already brought an application for a stay pursuant to s. 11(b) of the Charter, heard on August 9, 2018. At that time, I determined that defence delay in the case amounted to 15 months, and accounting for that deduction, the delay was 27 months. The defence did not meet its onus of establishing unreasonable delay in the period still below the threshold of 30 months (R. v. Coldin, 2018 ONSC 4916).

[198] We are now well beyond that. Although Mr. Coldin waived his s. 11(b) rights in the period prior to the trial, the trial has not concluded. These applications could not be scheduled before August 15, 2018. Any adjournment that could be granted, or certainly the ordering of a new trial, will create delay now entirely attributable to the Crown, and certainly will push the case over the 30-month ceiling set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 46.

[199] Jordan makes clear that delay (minus defence delay) that exceeds the ceiling is presumptively unreasonable. The Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances: para. 68. There are no discrete events that help the Crown here. In terms of whether this case has complexities caused by the nature of the evidence or the nature of the issues, requiring an inordinate amount of trial or preparation time such that the delay is justified, it will be impossible for the Crown to rely on the failure to disclose in a timely manner. In my earlier ruling I commented on the complexities of this case, in obiter, stating in part (para. 55):

Mr. Coldin has been focused on obtaining what he considers to be missing disclosure; the Crown’s repeated assertions that Det. Graham was not a central participant in this investigation, and that no further notes are available, have not assuaged Mr. Coldin’s concerns. I make no finding in this regard as Mr. Coldin has a motion before this court to be heard at a later date - the point is not that his motion is frivolous or to attribute fault to one side or the other, but rather, to indicate how this one issue has complicated matters.

[200] Now that all of the facts surrounding the late disclosure have come to light, it is clear that any resulting complexity is not inherent in the nature of the evidence or the issues, but created by the failings of the police and the Crown.

[201] Accordingly, had I found that the late disclosure violated Mr. Coldin’s Charter rights, I would have found a stay to be an appropriate remedy.

Disposition

[202] This court orders that application #1 is granted, and the remaining applications are dismissed.

Madam Justice S.E. Healey

Released: October 25, 2019

Appendix A

Shearer told Det. Randy Graham:

On November 13, 2014

• Coldin paid Hells Angels members to burn down cottages at his resort
• Coldin called Shearer and got Shearer to give him a name to contact to burn the cottages. The cottages burned
• Coldin owes the arsonist $9,000 for the job, and he isn’t paying
• Shearer is on the hook for making the connection
• Coldin’s old security guard Terrence Macdonald had Hells Angels giving him a hard time
• Shearer is considering being an agent. Shearer says that he can provide conversation with Coldin about arsons if wearing a wire
• Shearer will consider and talk again at later time

On June 5, 2015

• Brian from High Falls burned a trailer the other night; he had promised the axle from it to a friend
• Brian has been calling to get the guys that burned the cabin for him to do it again. Brian wants his main building torched, he said the building is beat, it needs a furnace
• Brian wants to show ongoing harassment by the building burning
• Brian has a $5,000 deductible on the building for fire
• he paid most of the money he owes to the guys that burned the cabin
• Brian is broke and getting desperate; he’s got cash from lawsuits but it’s gone
• Brian wants Shearer to call people that Shearer met in jail to have them contact Shearer and burn Brian’s building

On June 17, 2015

• Brian borrowed $2,000 a week ago because he was broke
• Brian got $60,000 from an insurance claim when he had the cottage burned
• Shearer has a brother Danny. Shearer told Brian that Danny met a guy that said he did a job for Brian at the resort
• Brian is constantly complaining about being broke
• when Shearer meddled between Brian and others to burn cottages, Shearer was on the hook for the payment for the arson
• Shearer paid the arsonists in marijuana for the job
• Brian still owes Shearer for the arsonists’ payment

On June 21, 2015

• Brian is going away this week. Brian wants the house burned; he has moved all his valuables out and put them in the apartment above the office. Brian wants to be out of town when it happens
• Brian thinks that the guy that burned the cottages last time is coming to burn the house because Shearer told him that Shearer’s brother could set it up and the guy wants to come and stay at the resort for a little while first, for a few days
• Shearer is willing to be an agent by introducing an undercover officer to Brian if necessary
• Brian wants it done as soon as possible

On June 22, 2015

• Shearer met Brian when he was doing “Ken Cans”, collecting beer cans for charity in 2006
• Shearer was doing odd repair jobs thereafter around the resort, including collecting the garbage around the resort 2-3 times a week. Shearer has only ever been paid $400 for his work at the resort
• Shearer uses the hot tub occasionally at the resort for his back pain and would use a room at the resort once in a while with his girlfriend
• Brian told Shearer that he was awarded $65,000 in damages from one lawsuit and another $275,000 for a failed real estate deal on the resort
• Brian told Shearer that he is sick of the cottages at the resort down the hill, and that they’re worth more burned than standing
• two weeks later Brian reiterated his comments that he was sick of those cottages and made a motion with his hand like he was lighting a cigarette lighter
• another week later Brian told Shearer that it was worth $5,000 to have the cottages burned down
• Shearer made a drawing of the cottages to be burned and passed it on to an unknown male associate to have the cottages burned
• this took place 4-5 years ago
• three cottages were supposed to be burned, only one burned
• a year after the cottage burned an unknown male started asking Shearer for the money for the job. Shearer went to Brian for the money and Brian stated that he is not paying because only 1 cottage was burned rather than all 3
• the original deal was that Brian was to pay $6,000 to Shearer, and Shearer was going to pay $5,000 to the unknown associates for burning the cottages
• Brian informed Shearer that he got $60,000-$65,000 for the burned cottage and some damaged boats
• Shearer wants to introduce someone to deal directly with Brian this time
• about two months ago Brian started bringing up finding someone to burn down the main house and office
• Brian kept asking Shearer to find someone to do the job, burn down the house
• Shearer told Brian that he hasn’t paid for the last job and that Shearer won’t be in the middle again, but Shearer will find someone for him to deal with directly
• Shearer was informed by Brian that he has moved all his valuables out of the main house, into the apartment above the office
• Brian made a big deal telling Shearer that he was going to be away for about a week, indicating that this would be a good time for it to happen. Brian told Shearer that it’s all ready to go.
• Brian is living at the resort full time
• Brian’s mother’s house is being sold currently for $1.2 million. Brian’s sister is trying to block him from getting any more money from his parent’s estate
• Shearer last talked to Brian on June 20, 2015
• Shearer would like to receive $10,000 for helping the police with Brian
• Shearer said that Brian has already cost him $6,000, and that Shearer owes money on his credit cards and needs a house repair
• Shearer has no relatives in the area, owns a home and his only other debt is $5,000 on his Canadian Tire credit card

On June 24, 2015

• Coldin called and left a message, advising Shearer to come by because he had something for Shearer

On June 25, 2015

• Coldin came to Shearer’s house for lunch on Wednesday, June 24 and paid Shearer $2,000 that he had borrowed
• Coldin left the house and came back about five minutes later and asked what was going on for the arson
• Shearer told Coldin that his guy’s car broke down and said he was going to go with his brother to pick him up
• Shearer told Coldin that the guy wants to come up for a few days
• Coldin doesn’t want it done on the weekend because he makes money at the resort on the weekends
• Coldin’s mother’s house sold and she still lives there for 18 months
• Coldin didn’t say where he got the money from

On June 29, 2015

• Shearer saw Brian and his girlfriend at a restaurant today
• a friend of Shearer’s was trying to find Coldin to try to buy the resort

On June 30, 2015

• Brian’s girlfriend’s mother is in the hospital and Brian’s on his way to visit her. Shearer is going to Brian’s later today to help him with his hot tub

On July 1, 2015

• Brian got a new cell telephone number, which he passed on to the officer
• Brian got $100,000 from a private investor recently

Shearer told the officers who interviewed him on June 23, 2015:

• he has a grade 9 education and collects an income from WSIB
• he smokes 15-20 joints of marijuana per day to relieve his chronic back pain
• his main motivation for assisting the police was to help save lives

Shearer told Det. Marshall during his KGB statement on July 1, 2015:

• Shearer had a can collecting business called “Ken Cans” and would donate them to the Society for the Prevention of Cruelty to Animals
• Shearer met Coldin when he attended the High Falls Resort and inquired about garbage collection
• Shearer could not say how long ago that was or recall the timeframe
• over time, Coldin and Shearer developed a business relationship as well as a friendship and Coldin would ask Shearer to conduct odd jobs
• after a number of years Coldin asked Shearer “I’ve got a couple of cabins down below did you know do you know anybody that likes to light fires?” At that point in the interview Shearer made a motion with his fingers and thumb like lighting a lighter
• Shearer explained the Coldin will use hand gestures and talk in code as a means of expressing what he wants done
• Shearer told Coldin that he knows people who would set a fire and would inquire if Coldin was serious. Coldin stated he was serious as there were a “couple bad ones down there”.
• Shearer contacted a person, who he cannot name, about setting up fire. Coldin wanted all 3 of his cottages on the resort burned
• Coldin and Shearer discussed how the cottages should be burned, with Coldin telling Shearer that there would be a red gas can down beside the buildings
• Shearer arranged for someone to attend and burn down the cottages and approximately 1 month later the task was completed however only one of the 3 cottages completely burned
• this person made attempts to burn down the other 2 cottages however, they did not burn down
• Coldin told Shearer that he wanted to be away when the cottages were burned down and he told Shearer what week he would be away
• the week Coldin was away was the week the 1 cottage burned and there were attempts on the other 2 cottages
• the day after the fire Shearer attended the resort. Coldin told him that 1 of the cottages burned down. Shearer said the other 2 cottages did not burn and that the torches did not “go”.
• Shearer entered the other 2 cottages after police left and observed burn marks in the floors. He also noticed that liquid was poured over the couches and on the floor
• the insurance company investigators arrived at the resort and Coldin showed the investigators the attempts in the 2 cottages and police were called back in
• Coldin was to pay a total of $6,000 for the arson. Of that $6,000 the arsonist was to get $5,000 for burning the cottages down and Shearer was to get $1,000 for making the arrangements
• Coldin advised that before he could pay Shearer, he would have to receive the payout from the insurance company
• afterwards, Shearer had an unknown male attend his residence and asked for payment for the job
• when Shearer asked Coldin for the money he was told the insurance payout hadn’t come in yet
• Shearer could not remember if it was right close to that time, but Coldin said “well what about getting another one done”. Shearer said “well that one hasn’t been paid”
• Shearer admitted that his memory is not good
• he was confronted again maybe a couple months later and had to make a payment to “them” himself. It was half paid. He paid in marijuana that he grows himself, as he has a license.
• Coldin told Shearer that the insurance company had been stalling but Shearer later found out that was untrue
• Shearer was on the hook for the balance owing and he paid the balance by way of marijuana when he was eventually confronted again
• Shearer then asked Coldin what he wanted done now and Coldin said the first one “down there” and mentioned that the woman was a “real bitch” and he didn’t want her in there
• Shearer believed the woman Coldin was referencing was Anita Ramsay (who he called Anita Bryant during the interview)
• Coldin has had “like zillions of trouble” with Anita
• Coldin corrected Shearer and said no it was the first cottage
• Coldin said the person who comes to burn the cottage down could come across the river and wouldn’t have to access Coldin’s property.
• because three cabins were supposed to burn the first time, but only one did, Coldin wanted this cottage to be included in the deal, Shearer stating “so that kinda went in to the same price see”. He later mentioned that would be included in the $5,000 price.
• there was a mistake made and an attempt was made on the wrong cottage. The error was corrected and the cottage that was supposed to burn did burn
• when Shearer gave the instructions to the arsonist, he told them the one to be burned had no hydro
• approximately six months later, Coldin told Shearer that something was found in the cottage where the mistake was made and there was an attempt to burn down the wrong cottage
• Shearer guessed that it was his mistake because he said “the first one”
• Coldin wants to have his “main house” burned because it needs too much work and the furnace is not good. Shearer believes that Coldin needs the money because he cannot afford to fix the building
• Coldin told Shearer that he borrowed $100,000 to get through the summer, and Shearer is unsure if that is true. He later said that Coldin was getting the money from “private guys” but speculated that maybe he didn’t receive it
• Coldin approached Shearer approximately 3 ½ months prior (to giving the statement) with this request (to burn the main house down)
• Coldin told Shearer that he had moved all his belongings out of the residence and into the apartment above the office. He advised Shearer that the main building was prepped and ready with the doors unlocked and he would be away for a week. Shearer said that the main house is on the left-hand side, as soon as you get to the gate to the property
• Shearer loaned Coldin $2,000 because they came to cut his hydro off and Coldin promised to pay him back. Shearer got the money from when his truck burned in his driveway two days before it was supposed to go back in for recall
• Coldin came to Shearer’s house to give him his money back. He left, and then came back and asked what’s going on “with that” and made the “lighter motion”. Shearer told Coldin that he couldn’t reach the “guy” yet
• Coldin didn’t tell him why he wanted the main building burned. He later corrected himself and said that Coldin said the furnace was no good and he couldn’t afford it. He stated “obviously it’s for money”.
• Shearer told Coldin that he never got paid and that Coldin had to do the deal this time
• Coldin uses hand signals to communicate and would sit on his phone or move it away. He said Coldin knows “not to talk that way”.
• Coldin burned a trailer at the resort. Shearer said it was not an insurance claim, he was just trying to get rid of it.
• During this interview Shearer and Det. Marshall prepared a diagram of the offence. While preparing the map in discussing the second fire he arranged, Shearer talked about the confusion about which of the private cottages was the “first one”. Coldin didn’t like the woman in the one that burned. There had been a confrontation between her and Coldin.
• He thought the fire at the woman’s cottage occurred maybe 1½ years after the first one, and thought it was done in the summer.
• Coldin is now living in an apartment above the office and that he had taken tools and anything of value out of the main house
• the payment was to be $5,000 for the arsonist and he agreed to $6,000 to get $1,000 for himself. At first he didn’t care if he got $1,000, but thought otherwise after the trouble.

Shearer told Dets. Fitzpatrick and Hutton on July 15, 2015:

• he suffered a back injury in 1987 and has used marijuana since, smoking 10 to 15 joints a day depending on availability.
• he has a lengthy criminal record, which they discussed. He also offered details of other criminal activity for which he has never been charged
• Shearer had difficulty remembering when he first met Coldin, saying it was 1999, then said it was between 4 to 6 years prior to 2010.
• In discussing the first arson, Shearer was asked if he knew anybody that would burn a couple of cottages. Coldin never gave him a reason, he just wanted to get rid of them
• Coldin knew Shearer knew people and he would check and see. Shearer’s role was lining somebody up to do it. Shearer asked his friend for a number for somebody that could do that. He said that he needed a job done but didn’t say what it was. Shearer then received a call, he met them, said it was a burn, and drew a map. He had never met the person before.
• Shearer was expecting to get paid $5,000 which the arsonist would receive after he had been paid. Shearer changed it after he didn’t get paid, but he never told Coldin
• when Det. Graham recorded in November 2014 that Brian paid the Hell’s Angels, that was a mistake because Coldin never paid. Similarly, Det. Graham’s notation that Coldin owes $9,000 was also a “miswriting or something”.
• Shearer also corrected his earlier version by saying that the Hell’s Angels were not giving Terrence McDonald a hard time, but rather were giving Coldin a hard time
• with respect to the lawsuits mentioned to Det. Graham on June 22, 2015, Coldin told him that once he won the lawsuits, $60,000 was released to him
• when he told Det. Graham on June 25 that Coldin said he didn’t want it done on the weekends, Coldin also said he was going to his mom’s on Monday and would not be back until Friday
• Shearer was asked about the fire from July 2013. Shearer said that he didn’t know the date, but it was the “next one” that was done.
• After that one burned, he thought it was four or five months later, Coldin told him that they found the attempt at the other place. He thinks Coldin said it was underneath the house.
• Shearer thought maybe they got the first one wrong because that wasn’t in on the deal, they weren’t supposed to do that one.
• Shearer didn’t draw a picture of the second time, just said the first one down by the water.
• Shearer’s motive is to get his money back. He hasn’t been paid. Coldin lied and he found out that Coldin got paid and didn’t pay him and doesn’t like people lying to him.
• Coldin told him that he would get his $2,000 back because there were investors that are going to give him $100,000
• with respect to the 2010 arson, Shearer said, when asked who he called, that he didn’t know the person’s name, he just had a number. He was to get a meeting so that he could talk to them, somebody else gave him the number and Shearer called him. Shearer met one guy. The first time he met the guy at his car and talked. Shearer does not know who he was. Shearer gave him a drawing of where the cottage was.
• Shearer didn’t “have a clue” who this guy was associated to. Shearer was asked by his handlers if he thought the person was associated to bikers or organized crime and he said yes, somebody dangerous. He saw no patches.
• Shearer then met a second guy, having made arrangements to meet him at Home Depot. His friend gave him a number, said to call this guy and make an arrangement. Shearer does not know the guy, but said he looked pretty tough, had tattoos on his arms but he “might not be a biker even”
• when they came to his house it was two guys, but neither of them were the people he met regarding the fires.

This statement appears to indicate that both of these meetings were with respect to the 2010 fire. Shearer is not asked to explain why he needed two meetings, or whether these two individuals knew one another.

• with respect to Coldin’s request to have the main house and the office burned, as he indicated to Det. Graham on June 17, 2015, Shearer said “that must have been in error it was just the main house not the office”.
• he has not been involved with any other criminal activity with Coldin

CORRIGENDA

1. Paragraph [128] – the second last sentence in this paragraph has been corrected to add the following words “failed to do so”, thus completing the sentence as follows:

… investigators failed to do so.

2. Paragraph 183 – the third line of that sentence has been amended to add the word “the” and remove the possessive “s” on Walker and now reads as follows:

… on the Walker cottage…

3. Paragraph [187] – the third sentence has been amended to add the word “however: and now reads as follows:

Most importantly, however, the information about …