Court File and Parties

COURT FILE NO.: CR-19-50000106-0000 DATE: 20200415 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – MICHAEL ST. CLAIR Defendant

Counsel: David Tice, for the Crown Misha Feldmann, for the Defendant

HEARD: January 6, 7, 8 2020

Goldstein J.

[1] On February 16, 2018 Toronto Police officers executed a search warrant at 30 Flastaff Avenue, Apartment 1605. They executed the warrant at 9:40 pm. The police found a sawed-off shotgun and five rounds of shotgun ammunition. They found the shoebox in the front hall closet of the apartment. Candace Snow was the lessee of the apartment. The police found Ms. Snow in the apartment when they executed the warrant.

[2] The target of the search warrant was Michael St. Clair. The police arrested him in the parking lot of 30 Falstaff shortly before they executed the warrant. The police also executed a warrant on Mr. St. Clair’s Dodge pickup truck. The pickup was parked in the lot at 30 Falstaff. The Crown does not seek to tender any evidence seized from the pickup truck.

[3] The police charged Mr. St. Clair with several offences relating to the possession of the firearm. They allege it belonged to him.

[4] During the investigation the police seized surveillance video from locations relevant to the case. They subsequently lost that evidence. Everyone agrees that it was relevant and should have been disclosed.

[5] The police also relied on information from a confidential informant. The information to obtain was initially sealed, but a redacted copy was provided to defence counsel.

[6] Mr. St. Clair says that the warrant was not valid. His counsel, Mr. Feldmann, sought to have the shotgun excluded from evidence at his trial. If that happened, it would effectively have ended the Crown’s case.

[7] After hearing oral evidence and reviewing the information to obtain the warrant (which I will refer to as “the ITO”), I dismissed the application. On January 10, 2020, I made the following oral ruling:

I will provide more extensive written reasons at a later date. Accordingly, I will only provide a brief ruling at this point.

I make three basic findings:

First, the police violated Mr. St. Clair’s s. 7 Charter rights by losing the video from 79 Clearview Heights. They were, therefore, unable to disclose it. The Crown has conceded that this was a violation. The violation, however, caused a minimal level of prejudice. I disagree with Mr. Tice’s argument that the proper remedy was to allow cross-examination of DC Sgroi. Rather, I find that the appropriate remedy is to edit the observation by Detective Constable Sgroi that Mr. St. Clair was exhibiting the characteristics of an armed person from the Information To Obtain. That is an observation that defence was unable to test. The defence was, however, able to test the other relevant aspects of the video through the timeline.

Second, the editing of this observation is of no practical effect. There is enough material in the ITO such that the issuing justice could find that there were reasonable grounds to believe that Mr. St. Clair was in possession of a gun even without that observation.

Third, there was a basis upon which the issuing justice could have issued the warrant for 30 Falstaff Avenue, Apartment 1605. The police had reasonable grounds to believe that the gun would only have been either in Mr. St. Clair’s personal possession; in his pickup truck; or at the Falstaff apartment. There is, therefore, no need to engage in an analysis of whether the evidence ought to be excluded.

The application to exclude the gun and ammunition from Mr. St. Clair’s trial is dismissed.

[8] The following are my more extensive reasons.

BACKGROUND

[9] On December 15, 2017, the Toronto Police attended at 79 Clearview Heights to investigate a report of gunshots fired. The police were unable to confirm that any shots were fired.

[10] A confidential informant, or CI, provided information to the police regarding December 15, 2017 incident. Detective Constable Steven Sgroi was assigned to investigate. DC Sgroi reviewed the informant information. An officer provided a USB key to DC Sgroi. The USB key contained surveillance video from 79 Clearview Heights and nearby buildings. DC Sgroi burned a CD of the video. He then placed the CD into the police file. DC Sgroi subsequently returned the USB key to the officer who gave it to him. As I will deal with in more detail later in these reasons, the police lost the CD. They have been unable to locate it.

[11] DC Sgroi did produce a “timeline” that included several still photos taken from the video.

[12] The investigation encompassed more than one person. Mr. St. Clair was one of those people. The CI indicated that the incident was the result of an argument between Mr. St. Clair and some other individuals. The CI described the incident. He indicated that some of the men, including Mr. St. Clair, had firearms.

[13] The CI also provided information that was redacted from the subsequent information to obtain, or ITO.

[14] DC Sgroi reviewed the video from 79 Clearview Heights. Much of the information that the CI provided about the individuals and the incident on December 15, 2017, was consistent with the surveillance video.

[15] The CI also provided some specific information about Mr. St. Clair (and I take this material from the redacted version):

He drives a black Dodge Ram pickup truck;
He does not live at Clearview but is always there; and,
He works construction.

[16] DC Sgroi learned a number of things about Mr. St. Clair from various databases:

He had no criminal record and had never been arrested;
He was the registered owner of a black GMC pickup (licence AR71094);
He had two other vehicles registered in his name, including a Nissan sedan (licence CCRF-448);
According to the Ministry of Transportation, his registered address is 1-275 Old Homestead Road, Keswick, Ontario; and,
He did not have a licence to possess firearms.

[17] Police conducted surveillance of Mr. St. Clair on several days. The police observed him at 79 Clearview Heights on January 8, 9, 25, 25, 26, 30, and February 12, 2018. The police also observed him at 30 Falstaff Avenue on January 8, 9, 25, 30, and February 12, 2018. The police also observed Mr. St. Clair’s pickup truck parked at 30 Falstaff Avenue on January 9, 2018.

[18] Candace Snow lived at 30 Falstaff Avenue, Apartment 1605. The police observed Ms. Snow and Mr. St. Clair together at least once, along with a small child. She was driving a car registered to Mr. St. Clair.

[19] On February 15, 2018 DC Sgroi applied for a search warrant. The application was rejected by Justice of the Peace Forfar. She wrote (in part):

I can understand that the investigation has been comprehensive and as written that the officer clearly believes that this accused is in possession of a gun. But I cannot independently assess this. “Exhibiting the characteristics of an armed person” is not sufficient grounds. The information from the CI (bullet 28) seems to me that the information from this person may not be first hand.

[20] In the first, rejected ITO, DC Sgroi wrote:

Police reviewed surveillance video from 79 Clearview Heights, Toronto, on December 15, 2018. In that video, police observed the subject exhibiting the characteristics of an armed person. Further, the video displayed the subject opening the rear, driver-side door of his motor vehicle (2007 Dodge pickup), immediately before the firearm discharge that night. The subject changed his clothing, and then attended to where the firearm discharge occurred. After the discharge of the firearm, the subject returned to the backseat (driver-side) of his truck. During this chain of events, the subject was exhibiting the characteristics of an armed person.

[21] DC Sgroi included that paragraph in his second application. He expanded on it in the second application. It was his view that the entire chain of events observed on video led to reasonable grounds to believe that Mr. St. Clair was in possession of a firearm on December 15, 2017.

[22] DC Sgroi also asked the informant handler for further information in response to Justice of the Peace Forfar’s comment that the information from the CI was not first-hand. The informant handler provided further information. The un-redacted portion of the ITO indicates that the CI confirmed that Mr. St. Clair “is in possession of a real, working firearm.” The judicial summary of the redacted portion of the ITO described the nature of the information in the ITO. That information included the reason for Mr. St. Clair’s possession of a firearm; the recency of the observations; and detail and location of the possession of the firearm.

[23] I reviewed the judicial summary as well as the unredacted portion of the ITO. I was satisfied that the redacted materials as well as the judicial summary allowed Mr. St. Clair to make full answer and defence.

THE “STEP SIX” APPLICATION

[24] Because the ITO contained information from a confidential informant (a “CI”), the Crown applied to conduct what is known as a “Step Six” application.

[25] A Garofoli Step Six application is an attempt to resolve the basic tension between the right of an accused person to make full answer and defence, and the responsibility of the Crown and court to protect the identity of a CI: R. v. Garofoli, [1990] 2 S.C.R. 1421; R. v. Learning, 2010 ONSC 3816; R. v. Crevier, 2015 ONCA 619; R. v. Reid, 2017 ONCA 430.

[26] In order for a warrant to issue on the basis of information supplied by a CI, that information must be credible, compelling, and corroborated: R. v. Debot, [1989] 2 S.C.R. 1140. Typically, the more detailed the information from (and about) the CI, the more likely it is that he or she can be identified. As a result, the ITO is usually sealed. After the execution of the warrant, and upon charges being laid, the accused person has a right to disclosure of the ITO, consistent with the need to protect the identity of the CI. The procedure was set out by Sopinka J. at paragraph 79 of Garofoli. Briefly, the steps are as follows:

Step 1: Crown counsel obtains a copy of the unredacted ITO from the sealed packet and edits it to protect the identity of the CI. Crown counsel provides the copy with the suggested edits to the trial judge. As a practical matter, Crown counsel may provide a copy of the draft edited ITO to defence counsel. Step 2: The trial judge edits the ITO in accordance with the Crown’s suggestions and provides it to the counsel for the accused. Counsel may then make submissions as to whether he or she is able to appreciate the nature of the deleted material. A judicial summary of the deletions may be provided. As a practical matter, Crown counsel may provide a draft judicial summary to the trial judge. Crown counsel may also provide it to defence counsel. Step 3: The trial judge makes final edits after hearing submissions. Step 4: The trial judge provides the final edited material (the edited ITO and the judicial summary) to defence counsel. Step 5: The Crown may choose to try and support the issuance of the authorization on the basis of the redacted ITO. If so, then the trial judge will entertain submissions, and make a determination. Step 6: If the redacted ITO is insufficient – in other words, if the redacted ITO fails to show that there was a basis upon which the warrant could have been issued – then the Crown may ask the trial judge to consider “so much of the excised material as is necessary to support the authorization”: Garofoli, at para. 103. The accused must be sufficiently aware of the nature of the excised material to make an argument.

[27] Prior to Code J.’s decision in Learning, it was common for Crown counsel simply to make arguments at Step 5 without resort to Step 6. Since Learning, and related Court of Appeal decisions such as Crevier, the Step 6 procedure has become common.

[28] There is some debate about whether it is appropriate for Crown counsel to provide a draft edited copy and a draft judicial summary to defence counsel prior to the Step 6 hearing. Some judges and some counsel take the view that the trial judge should do the editing and provide the judicial summary. In my respectful view, however, it is a good practice for Crown counsel to do the editing, prepare a draft judicial summary in advance, and provide it to defence counsel. At this stage, only Crown counsel, advised by the police, will have a full appreciation of the information that might tend to reveal the identity of the CI.

[29] A good, practical job of editing the ITO along with a meaningful judicial summary can provide a basis for a focussed hearing. That is what happened in this case – Crown counsel provided the drafts to defence counsel. Both counsel, who are knowledgeable and experienced in these matters, then conducted a practical hearing that focussed on the key issues.

[30] In this case, Mr. Feldmann was satisfied, after Step 6, that he had sufficient material to enable him to challenge the warrant. I agree that was an appropriate concession. In my respectful view, Mr. Feldmann was sufficiently aware of the excised material that he was able to point to weaknesses in the ITO and properly evaluate the material.

ISSUES

[31] There are three issues to be determined:

(a) Did the police breach Mr. St. Clair’s s. 7 rights when they lost the Clearview Heights video? (b) Was there a basis upon which the justice of the peace could have issued the warrant? (c) What should be the remedy, if any?

ANALYSIS

(a) Did the police breach Mr. St. Clair’s s. 7 rights when they lost the Clearview Heights video?

[32] Mr. Feldmann argues that the police breached Mr. St. Clair’s rights when they lost the video from 79 Clearview Heights. His argument is straightforward: the Crown has the burden of showing that the video was not lost through unacceptable negligence. The Crown cannot show that. There is no evidence of any steps taken to remedy the problem. Nobody can say where it was lost, how it was lost, where it ended up, or what steps were taken to preserve the video. Although stills from the video were disclosed, they are insufficient for the purpose of evaluating the assertions in the ITO that Mr. St. Clair was “exhibiting the characteristics of an armed person.” Mr. Feldmann argues that the proper remedy is the excision of all information coming from the video in the ITO.

[33] The Crown has a duty to preserve evidence for the purpose of disclosure: R. v. La, [1997] 2 S.C.R. 680. The court must consider all of the circumstances surrounding the loss, including whether the evidence was perceived to be important at the time. Where the evidence has not been lost due to unacceptable negligence, there has been breach of the duty to make disclosure: La, at para. 20.

[34] Crown counsel, Mr. Tice, does not dispute that the video was lost through unacceptable negligence. Rather, Mr. Tice focusses on the issue of prejudice. He argues that the application must be seen in context. A Garofoli application is not a trial on the merits. The truth or falsity of the information in the ITO is not the issue. Rather, the issue is whether DC Sgroi has a reasonable belief in the existence of the grounds for the issuance of the warrant: World Bank v. Wallace, 2016 SCC 15 at para. 119. The main remedy here was to permit cross-examination of DC Sgroi. Cross-examination is not a right: R. v. Araujo, [2000] 2 S.C.R. 992. There must be a basis for the cross-examination. The cross-examination must go to the basis for the issuance of the warrant: Garofoli, at paras. 112-114. Here, Crown counsel did not oppose cross-examination. Mr. Feldmann, Mr. Tice argues, was able to cross-examine DC Sgroi and test whether there was a basis to assert that Mr. St. Clair was “exhibiting the characteristics of an armed person”.

[35] Notwithstanding Mr. Tice’s compelling argument, I cannot fully agree. There is no question that the video evidence was perceived as important at the time. The video from Clearview Heights formed an important basis for the subsequent investigation. This was not a situation where the evidence only became important in retrospect.

[36] It is true that the video evidence does not go to the merits of the case against Mr. St. Clair. At its highest, the video evidence only goes to whether the police had grounds to obtain a search warrant. In that respect, this case is not unlike R. v. Ricketts, 2014 ONSC 3210. In that case, the police lost a folder that may have contained some evidence relevant to the reliability of a CI. My colleague Spies J. agreed with the defence that the loss of the folder violated the accused’s s. 7 rights. Spies J. found that the proper remedy was to permit cross-examination of the investigating officers. Mr. Tice argues that cross-examination fulfills the same role here.

[37] I cannot fully agree. In Ricketts the police tried to replicate the lost folder. They were, ultimately, unable to say whether the folder even contained documents that were subject to disclosure. That was because many, if not all, of the documents in the folder would have been subject to informant privilege. Here, we know exactly what was lost and we know exactly how the evidence fit into the application for the search warrant.

[38] As well, although the video does not go to the merits of the case the validity of the search warrant is the key issue here. If the search warrant falls, the Crown’s case collapses. Likewise, if the evidence is admitted, it is difficult to see what defence Mr. St. Clair could raise.

[39] Moreover, I agree with Mr. Feldmann that the police did breach the duty of disclosure when they lost the video. I also agree with him that the negligence is unacceptable. The explanation – or non-explanation – is not satisfactory. The police simply do not know what happened. Mr. Feldmann does not argue that the police acted maliciously, or that there was bad faith. I agree. There is no evidence of bad faith, or a deliberate pattern of disregarding Mr. St. Clair’s rights. There is no evidence the police tried to cover up the error. It is reasonably clear that this is case of a large bureaucratic organization making a bureaucratic error. I am not sure why the police did not place a copy of the video in the divisional locker, where there is a record of items deposited and retrieved. I am also not sure why the video was not provided to Video Services, a part of the Toronto Police that copies and stores video. Neither of those things was done. The inescapable conclusion is that the police failed in their duty to preserve evidence. Regrettably, given the lack of explanation, I must characterize the negligence as unacceptable.

[40] Mr. Feldmann was not fully able to test the assertion that Mr. St. Clair was “exhibiting the characteristics of an armed person” on the video. The still photographs simply do not illustrate that one way or the other. Furthermore, the assertion in the ITO is exactly that – it is an assertion. It is a conclusion based on observations by the affiant. It cannot be tested. If, for example, an observation officer had been watching a suspect without video, the officer would be required to describe those characteristics for the justice of the peace. The officer would, one would hope, write down those characteristics in a police notebook. The notes would be disclosed.

[41] In my view, therefore, the proper remedy is to excise reference to the “characteristics of an armed person” on the night of December 15, 2018 from the ITO. The stills (containing images of Mr. St. Clair) need not be excised.

(b) Was there a basis upon which the justice of the peace could have issued the warrant?

[42] Mr. Feldmann argues that without the excised material from the video there was no basis upon which the affiant could swear that he had reasonable grounds to believe that Mr. St. Clair was in possession of a gun on December 15, 2017. Further, he also argues that the information from Clearview Heights was stale. It was more than two months prior to the execution of the warrant, and the observations were not sufficient to show that Mr. St. Clair had a gun. Mr. Feldmann also argues that the information provided by the CI failed the Debot test: it was not credible, compelling, or corroborated. He argues, in particular, that the information tying the gun to 30 Falstaff is lacking. There is simply insufficient evidence, he argues, either in the unredacted ITO or as set out in the judicial summary, to support the ITO in respect of that residence. The police were aware that Mr. St. Clair listed his residence in Keswick. They failed to do enough to investigate his ties to that residence, and eliminate it as a possible location for the firearm.

[43] I must respectfully disagree with Mr. Feldmann’s argument.

[44] My role when reviewing an ITO is not to determine whether I would have issued the warrant; rather, my role is to determine whether there was sufficient credible evidence upon which the justice of the peace could have issued the warrant. Where evidence has excised from the ITO, my role is to determine whether the continues to be a basis for the issuance of the warrant: Garofoli at para. 68; Araujo, at para. 51; R. v. Morelli, 2010 SCC 8 at paras. 40, 130.

[45] I will deal first with the video from Clearview Heights. The stills from the video are sufficient to show that Mr. St. Clair was present at Clearview Heights on the night when gunshots were fired. That corroborates the CI’s information that Mr. St. Clair was present.

[46] As noted, I exclude the conclusion that he was exhibiting the “characteristics of an armed person”. In my view, however, the assertion that Mr. St. Clair was “exhibiting the characteristics of an armed person” added little to the ITO. That is an observation that can be ambiguous. Observations of that nature can be very subjective and can lead to a type of confirmation bias – an officer may unconsciously look for things that can confirm the hunch. That is a very human reaction. Moreover, even if correct it occurred two months prior to the application for the ITO. That assertion was simply not fresh.

[47] I do not wish to be taken as saying that the observations of an experienced police officer should be disregarded. There is an important distinction between an officer reviewing a video and drawing a conclusion for an ITO, and an officer dealing with a dynamic situation where a person may possess a gun. The officer reviewing the video has time and need not make a split-second decision. In a dynamic situation, where an officer has a hunch, the officer’s hunch may well be right, and a hunch should not be discounted where there is a potential danger to public safety (such as the presence of a gun). Courts should hesitate to second-guess an officer making a quick decision involving public safety. Courts should be less hesitant where an officer is viewing something on video after-the-fact.

[48] I turn back to the officer’s observations of Mr. St. Clair on the video as set out in the ITO. As noted, at their highest they can only corroborate the CI’s information that Mr. St. Clair was present at Clearview Heights.

[49] What is left, therefore, is the redacted information available to Mr. Feldmann, and the unredacted information.

[50] The redacted information indicated that the officer went back to the CI’s handler after Justice of the Peace Forfar rejected the first application. The key information from the informant is the following:

1(i)v. The CS [confidential source] reaffirmed that Mikey is in possession of a real, working firearm.
vi. CS Advised that he/she is educated in firearms from the internet, and has seen firearms in person, multiple times, and has seen them fired.

[51] The redacted ITO provides further details. The judicial summary indicated that the ITO contained information regarding the currency of Mr. St. Clair’s possession of the firearm; the reason for his possession; the recency of his possession including the timeframe; whether or not the CI provided information that was first-hand; the location of the possession of the firearm; and the most recent observation by the CS.

[52] I find that after reviewing the unredacted ITO, the redacted ITO, and the judicial summary that the information provided by the CI is compelling. The tip is detailed. The tip also contains information that is reasonably fresh.

[53] I also find that the ITO is corroborated. The police conducted surveillance on Mr. St. Clair. The surveillance indicated a pattern of life that was consistent with that described by the CI. The stills from Clearview also corroborate the CI’s information, at least to some degree. It was not necessary for the police to corroborate the alleged criminality; it was only necessary for the police to corroborate those things that are not open and available to any member of the public. Based on my review of the redacted ITO, I find that the police did so.

[54] I also find that the credibility of the CI was sufficient to support the issuance of the ITO. The CI is a carded informant of the Toronto Police. The CI had previously provided “true and reliable information” to the police. The ITO contains no further details about the information provided in the past. The unredacted information contains information regarding the expectation, if any, that the CI had of consideration. That consideration is dealt with in paragraphs 7 and 8 of the ITO. The judicial summary notes that the type of consideration is indicated; and the substance of the consideration is detailed.

[55] The credibility of the CI was probably the weakest of the three areas, but strength in one area can make up for weakness in another. The tip was compelling. Any frailties in the credibility of the CI were made up for by the compelling information in the tip.

[56] Based on the redacted information in the ITO (reinforced by the unredacted information) there was no question that the justice could find that Mr. St. Clair was strongly associated with 30 Falstaff Avenue, Apartment 1605. There was also no question that he was closely associated with Candace Snow. The police observed Mr. St. Clair entering Apartment 1605 with a key. He met with Ms. Snow and a small child on February 12, 2018. Ms. Snow was driving the Nissan registered to Mr. St. Clair. Ms. Snow was the tenant at 30 Falstaff Avenue, Apartment 1605. Police observed him there. They observed his pickup truck parked there several times. There was no indication from surveillance that Mr. St. Clair actually lived in Keswick, or lived at 79 Clearview Heights.

[57] Ultimately, I find that there was a basis for the justice to issue the warrant for 30 Falstaff. The police had grounds to believe that Mr. St. Clair had a gun. The police had grounds to believe that he kept it with him or close to him. As DC Sgroi stated in the ITO, a firearm is portable and valuable. As a single item, it also cannot be in more than one place at any one time – it is not like documents or drugs or ammunition, which can be copied or divided (it is true that many firearms can be broken into their constituent parts but there was no evidence that Mr. St. Clair had done that). The police had evidence that Mr. St. Clair frequented three locations: Falstaff, Clearview, and his pickup truck. They had no grounds to believe that he kept the gun at Clearview. While conducting surveillance the police had not seen Mr. St. Clair attend the Keswick location. Logically, therefore, it was available to the justice to find that there were grounds that the gun would be found either on him, in his truck, or at his residence. No warrant was needed to arrest Mr. St. Clair and search him incident to arrest, but since the gun could not be in more than one place when the warrants were executed, a warrant had to be issued for both places. It would be impractical to require that the police eliminate all possible locations for a thing sought. The law does not require that; rather the law requires that there be evidence connecting that thing with the place to be searched.

[58] It would also be impractical for another reason. Imagine that the police had only sought a search warrant for the pickup truck. They would have arrested Mr. St. Clair and searched him incident to arrest. They would have searched the pickup truck. They would have found nothing. There is no doubt that Mr. St. Clair would then have then taken steps to dispose of or hide the gun, since the police did not search the apartment. It would make no sense to permit a suspect to do that, unless the police had specific information that he never kept the gun in the apartment.

[59] I therefore find that there was a basis upon which the justice of the peace could have issued the warrant for the Falstaff location.

[60] It is unnecessary for me to consider the remedy for a violation of s. 8.