COURT FILE NO.: CR-20-69

DATE: 20210111

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

C. Agatiello, for the Crown

Respondent

• and -

JOSHUA ANSAH and ALEXANDER MILLS-SMITH

R. Rusonik, R. Mwangi, N. Sookram and E. Lam for the Applicants

Applicants

HEARD: October 9, 13-16, 19-21, 23, 27, 28, November 3, 9, 16, 18, 20, 23, 25, 26, December 1, 4, 7, & 11, 2020

REASONS on s. 8 CHARTER APPLICATIONS

RESTRICTION ON PUBLICATION

Pursuant to s. 517(1) and 522(5) of the Criminal Code, these reasons shall not be published in any document, or broadcast or transmitted in any way before such time as: (a) if a preliminary inquiry is held, the accused is discharged; or (b) if the accused is tried or committed for trial, the trial is ended. This prohibition is subject to an exception that permits a lawyer to circulate these reasons to another lawyer or to rely on them before any court.

Baltman J.

Introduction and Overview

[1] The Applicants face various charges related to the possession of loaded firearms, found within a private residence. Both applicants were located inside the residence when police executed the telewarrant, and, during the raid, Mr. Ansah was seen holding two of the weapons that were recovered. Within a few days after the arrest, police gained access to Mr. Mills-Smith’s Instagram account, which they used to link him to a third firearm and ammunition found within a safe in one of the bedrooms of the residence.

[2] The applicants moved to quash the telewarrant and exclude the evidence obtained by the police under s. 24(2) of the Charter (a “Garofoli application”, as described in R. v. Garofoli, 1990 SCC 52, [1990] 2 S.C.R. 1421). In support of their application the applicants brought two motions:

1. A motion seeking further disclosure from the Crown; and

2. A motion seeking leave to cross-examine the affiant of the Information to Obtain (ITO).

[3] In addition, should the joint application by both applicants to strike the telewarrant be unsuccessful, Mr. Mills-Smith has brought a separate application to have the search of his Instagram account declared unlawful under s. 8 of the Charter, with the resultant evidence excluded under s. 24(2).

[4] The ITO supporting the telewarrant was largely dependent upon information provided to the police by two confidential sources. The primary attack by the defence on the validity of the warrant was that one of the two “confidential informants” was in fact a police agent. That sub-facial attack on the warrant was the prevailing theme of the materials the defence filed in advance of the hearing and the evidence it called during the hearing. While the defence adjusted that theory somewhat later in the hearing, the driving theme throughout these proceedings was that someone acting at the direction of the police set the applicants up for a raid. As I explain below, that agency theory had no merit at its inception and continues, to this day, to be meritless.

[5] At counsel’s request, due to COVID-19-related concerns the majority of this hearing proceeded over Zoom. The accused, who are in custody, participated by telephone. The ex parte portion of the hearing, discussed below, was conducted in person.

[6] Over several days I heard evidence and submissions from the parties, which was adduced to support both motions (disclosure and cross-examination of the affiant) and both applications (Garofoli and the Instagram search). Counsel agreed that any evidence heard on one matter was applicable to all.

[7] At the necessary points, I issued rulings on both the disclosure motion and the motion to cross-examine the affiant. Each motion was denied, with reasons to follow. As much of the evidence and some of my reasons on the various motions and applications overlap to some degree, they are all contained within this decision.

[8] My reasons below begin with a review of the factual background to the case. I have then set out a summary of the evidence relevant to all four matters (disclosure, cross-examination of the affiant, the Garofoli application, and the Instagram application). That is followed by a separate analysis of each individual motion and application, each containing a review of the relevant law and my analysis.

[9] Ultimately, for the reasons set out below, I have found that:

i. No further disclosure was warranted;

ii. Leave to cross-examine the affiant was not justified;

iii. The issuance of the warrant did not breach s.8;

iv. The Instagram search did not breach s. 8.

Factual Background

[10] The facts described here are largely undisputed.[^1]

[11] On Sunday, November 4, 2018, at approximately 8:15 p.m., members of the Peel Regional Police executed a search warrant at 18 Keirstead Trail (“the Keirstead house”) in Brampton. Based on information received from two sources, police believed that Mr. Ansah resided at that address and was in possession of a firearm. Officers who were being supported by the Tactical Unit began execution of the warrant by breaching the front door of the residence and calling on the occupants to exit. At that point, a second police unit at the rear of the house observed Mr. Ansah break the rear upper bedroom window and throw out a firearm (later determined to be loaded).

[12] Officers then observed Mr. Ansah at the broken window with a second firearm. He then retreated back inside the home with the firearm still in his hand. The residence was eventually cleared of all nine occupants, who were all arrested. Three of those individuals, including the two applicants, were committed to stand trial.

[13] A search of the interior of the residence resulted in seizure of an unloaded firearm located inside the attic of the bedroom with the broken window. In one of the upstairs bedrooms police located a safe, inside which they discovered the following items:

a. A loaded Jericho 9 mm handgun;

b. Shopping receipts from various stores inside Vaughan Mills plaza, dated October 24, 2018, including one from a Sport Chek clothing store, time-stamped 4:24 pm;

c. An “Air Jordan” Satchel;

d. $2,700 in Canadian currency;

e. A gold grill for teeth; and

f. Two cell phones and an iPhone charger.

[14] The warrant which authorized the search and seizure of these items was issued by Justice of the Peace Mora at 7:25 p.m. on November 3, 2018. The warrant allowed a three-day window for execution, expiring at 6:59 a.m. on November 5, 2018.

[15] Officer Thomas Canning was the affiant of the Information to Obtain (“ITO”). The ITO consisted in large part of information from two sources, referred to therein as “CI1” (Confidential Informant #1) and CI2” (Confidential Informant #2). It is undisputed that the critical and most compelling information came from CI1 and that CI2’s information would not, on its own, have supported the issuance of the warrant sought.

[16] As noted above, one of the sales receipts seized from the safe inside the Keirstead house was from Sport Chek, and was dated October 24, 2018. On November 5th or 6th of 2018, police visited the Sport Chek at the Vaughan Mills mall and viewed security video corresponding to the time the Sport Chek receipt seized from the safe was generated. Police came to believe the person in the video matched a picture of the applicant, Mills-Smith. It is conceded that person was in fact Mr. Mills-Smith.

[17] On November 7, 2018, Detective Scott Smith, using what he described as a “covert” account, gained access to and examined the contents of Mr. Mills-Smith’s Instagram account. Within the account, Det. Smith found what he believed were pictures of Mr. Mills-Smith, including two pictures of him wearing a cosmetic grill and three pictures of him with a black Jordan-brand satchel similar to the one located in the safe in the Keirstead house. Det. Smith’s findings are contained in his report, which he prepared for the Street Level Organized Crime (SLOC) Unit on November 7, 2018 (“Det. Smith’s report”).

[18] The Defence admits that Mr. Mills-Smith had possession of the firearm found in the safe. The Defence further admits that a) the Instagram account in issue belongs to Mr. Mills-Smith; b) the Jordan satchel Mr. Mills-Smith is wearing in the video from his Instagram account is the same satchel found in the safe; and c) the gold grill Mr. Mills-Smith is wearing in the photos from his Instagram account is the same gold grill found in the safe.

[19] As noted above, the Defence’s primary attack was to persuade the court that one of the informants – presumably CI1 – was not a true confidential informant but was rather a police agent who conspired with the police to ensnare Mr. Ansah. The three key arguments advanced by the Defence in support of this theory, and elaborated upon later in this decision, are as follows:

1. Similar fact patterns in two other cases allegedly involving the same agent, who orchestrated the acquisition by the accused of a firearm to coincide with the execution of the warrant by police, as presented through the evidence of the accused in those cases – Shawn Downey-Smith and Troy Moulton;

2. The failure by the police to execute the warrant on the Saturday night, after they claimed in the ITO that it was urgent, because they needed to time the raid with their agent’s confirmation that the gun was in the residence;

3. Det. Smith’s use of an agent to access Mr. Mills-Smith’s private account in order to circumvent the requirement of obtaining a warrant for that purpose.

[20] For ease of reference, throughout this hearing the alleged agent was referred to as “AA”, and with the masculine pronouns “he” and “his”. The same terminology is used in this decision.

Summary of Relevant Evidence

[21] Counsel agreed that any evidence adduced in this matter applies to all the motions before me.

a) Joshua Ansah

[22] Mr. Ansah testified that when these events occurred, he and Mr. Mills-Smith were both residing at the Keirstead house. On Saturday, November 3, 2018, he called AA in order to purchase a firearm. They initially arranged to meet for the exchange that same day, but later on in the day AA postponed the meeting until the next day, Sunday.

[23] On Sunday, shortly after he and Mr. Mills-Smith had purchased guns from AA and returned to the Keirstead house, he received a FaceTime call from AA, during which each of them “flashed” his gun at the other. Within an hour of that call ending, police showed up and stormed the house.

[24] Mr. Ansah also recalled a similar incident in August 2018, when on the same day he acquired a firearm from AA, the police raided his home shortly after he returned from meeting AA. He was able to evade police on that occasion by running out the back of the house. Police found a firearm wedged into the backyard fence. As a result of that incident, a warrant was issued for his arrest and was outstanding on November 3, when police arrested him at the Keirstead house.

b) Shawn Downey-Smith

[25] For many years Mr. Downey-Smith was a mutual friend of Mr. Ansah and AA. He considered AA to be a longstanding, close friend.

[26] Mr. Downey-Smith has a criminal record, which includes a conviction for possession of a loaded firearm and numerous failures to comply with probation orders.

[27] Mr. Downey-Smith testified that on the evening of February 12, 2019, AA brought a firearm over to Mr. Downey-Smith’s home and left it there “in storage”. The following day (February 13), AA phoned him. During their conversation AA confirmed that Mr. Downey-Smith was at home and still had the firearm there. AA then told Mr. Downey-Smith that he was coming to pick him up and retrieve the firearm. Instead, ten minutes later, the police showed up and arrested him.

[28] Mr. Downey-Smith’s trial proceeded in September 2020. The principal charge was for possession of the firearm that AA “left” at his home. He did not testify at that proceeding and, according to his evidence at this hearing, he was acquitted because the Crown could not establish that he was in possession of the firearm at the relevant time. The alleged involvement of AA was not raised as an issue at that trial.

c) Troy Moulton

[29] Mr. Moulton has known AA for many years. Until August 2019, when he was arrested, Mr. Moulton sold illegal narcotics out of an apartment in Brampton that he maintained for that purpose. He sold primarily to “trusted buyers”, which included AA.

[30] Mr. Moulton testified regarding the circumstances leading up to his arrest on August 6, 2019. On July 1, 2019, AA came over to purchase cocaine. While there, AA showed Mr. Moulton photos of firearms (on his cellphone) that he was offering for sale, which Mr. Moulton declined.

[31] A few weeks later, AA again attended Mr. Moulton’s apartment to procure cocaine. This time he purchased it on consignment. He displayed to Mr. Moulton a firearm he had in his possession and offered it for sale. Mr. Moulton again declined.

[32] According to Mr. Moulton, AA kept delaying paying him the money owed for the cocaine. Then, on August 5, 2019, AA set up a meeting at Mr. Moulton’s apartment. However, rather than coming in person, AA sent his friend, “D Rich”. Mr. Moulton observed that D Rich was carrying with him the same “man purse” that AA had with him on July 1st. D Rich asked for more cocaine, explaining that AA was getting ready to make some big sales very soon, whereupon Mr. Moulton would be paid for all the drugs sold. D Rich removed a gun from the purse and told Mr. Moulton to hold it as “collateral”. He assured Mr. Moulton that AA would repay all the outstanding monies within 24 hours.

[33] However, the next day (August 6, 2019), instead of AA or D Rich bringing the monies promised, the police showed up and raided Mr. Moulton’s apartment. He now faces outstanding charges related to both the narcotics and the firearm found in his apartment.

d) Dr. Rhonda McEwen

[34] Dr. McEwen is an expert on the use and functionality of Instagram. Her evidence was tendered by the applicants to demonstrate that Det. Smith procured the images for his report from an undisclosed police agent, rather than on his own, as well as to support Mr. Mills-Smith’s claim that the Instagram search violated s. 8 of the Charter. In preparing her opinion, Dr. McEwen obtained permission to access and review the contents of Mr. Mills-Smith’s private Instagram account.

[35] The main points of her evidence were:

1. Instagram is a social media platform that is “hyper visual”, i.e., based primarily on images and videos;

2. A user can have public and/or private accounts – the former is accessible to anyone, the latter only to those who have been granted permission to follow;

3. This account holder had 781 followers, which is a relatively small number – that factor, along with other indicators, causes her to believe this is a private rather than a public account;

4. It is difficult to download or capture images or videos from another person’s account without significant distortion;

5. Some of the images in Det. Smith’s report appear to have been “skewed” or “cropped” when compared to how they present in the Instagram account;

6. It is likely that the images in Det. Smith’s report are not authentic recaptures from the original Instagram account, but rather have been captured, resized and then reassembled; and

7. She is “very certain” that the video contained in Det. Smith’s report is a second or third generation recording, meaning it’s “a videotape of a videotape”.

e) Detective Scott Smith

[36] In November 2018, when these events unfolded, Det. Smith was part of the SLOC unit in Peel Region. He is specifically trained to conduct “online” investigations. On November 7, 2018, he was provided with the surveillance photos from the Sport Chek video and recognized Mr. Mills-Smith from two previous encounters: the first was Mr. Mills-Smith’s prior involvement with the Down Bottom Gang in 2015 (which Det. Smith investigated at the time), and the second was Mr. Mills-Smith’s arrest in 2016 for break and enter (Det. Smith was one of the arresting officers).

[37] Det. Smith testified that from 2016 onwards he was a follower on Mr. Mills-Smith’s Instagram account. He initially identified Mr. Mills-Smith’s Instagram account by reviewing both his Twitter account and the accounts of people associated with Mr. Mills-Smith. Then, through his covert account, Det. Smith put in a request to follow Mr. Mills-Smith, which was granted.

[38] For this investigation, Det. Smith used two cellphones to compile the images for his report: the first phone was used to access and recover the video directly from Mr. Mills-Smith’s Instagram account. Det. Smith then used a second phone to capture specific still images by snipping and saving them from the video on the first phone. Those are the screenshot images reproduced in his report. The images of particular importance to this investigation reveal Mr. Mills-Smith wearing a Jordan satchel or sporting a gold grill on his teeth.

[39] Det. Smith explained that the entire process took approximately 1.5 hours. He agreed that the images in the report appear somewhat compressed compared to the original, which he attributed to the process of cutting, pasting, and downloading them to fit within his report. He did not notice that the video was dated 5 days earlier, whereas the screenshots were dated from 4 days earlier, and he could not explain that discrepancy. However, he vehemently denied that he “hid the true origins” of those images in order to conceal the fact that the alleged CI was in fact a police agent, or that his role was to “launder” materials supplied by such agent.

[40] Det. Smith kept a record of when he viewed, captured, and saved the images in question. The record was filed as Ex. 13K in these proceedings, titled “Dates and Times of Preservation”, and it indicates he viewed and saved all the images – be they videos or stills – between 8:15 a.m. and 9:48 a.m. on November 7, 2018.

The Ex Parte hearing

[41] After the evidence was completed and the Applicants made submissions in support of the disclosure motion, I acceded to the Crown’s request to call evidence and make submissions in an in person, in camera, ex-parte hearing.[^2] The Crown insisted this measure was necessary to protect the identity of the individuals identified by the Crown as confidential informants.

[42] After the ex parte hearing concluded, and at the request of the defence, I provided counsel with a summary of the proceeding, along with my ruling[^3] that none of the disclosure sought by the defence was warranted. My summary included the following:

1. Detective Tom Canning, the affiant, testified that:

• In preparing the ITO, he relied in part on information provided by the main handler for each of the two informants;

• For this investigation, Officer Frape was the central note taker on Saturday November 3, 2018 – when the warrant was issued – and was responsible for taking the “run” notes for the surveillance team;

• Search warrants involving firearms generally require use of tactical officers; and

• The timing of the execution of a warrant depends on a variety of factors, including the number of officers available and the number of persons under investigation.

2. Detective Frape provided a Will Say statement (Ex. 17), as follows:

• The warrant in this case was not executed on Saturday, November 3, 2018 for the following reasons:

o Limited officer availability;

o The tactical team was not readily available; and

o The target was lost during surveillance between 8:11 p.m., when he was believed to be in a vehicle in a plaza, and 9:00 p.m., when observations were terminated.[^4]

[43] Beyond what is contained in the summary, the ex parte hearing was largely unhelpful to the court. Little of the evidence adduced by the Crown assisted the court with the disclosure issue. Instead, it appeared to be aimed at reinforcing the Crown’s position that informant privilege applies to the sources. To the extent the Crown addressed the disclosure issue, it mostly did so improperly, by continually trying to elicit opinion evidence to the effect that the sources were not police agents. As I explained to the Crown repeatedly, I give no weight to that evidence as it was entirely untested through cross-examination.

[44] The upshot is that I have not used anything from the in camera hearing anywhere in my analysis on this case.

THE DISCLOSURE MOTION

The Documents Sought, and Why

[45] The Applicants maintained that in advance of and in preparation for step six of the Garofoli motion, they required further disclosure from the Crown. In particular, the Applicants sought disclosure of the handler’s notes; contact/debriefing reports and informant ledger reports; and all central or “run” notes leading up to and including the arrest. They sought all those documents to support their assertion that the source that the police relied upon was in fact a police agent and not a true confidential informant.

[46] The Applicants conceded that, if such disclosure was ordered, the documents may have to be redacted in order to protect the informant privilege being alleged. Nonetheless, they maintained that it was critical for at least the court to view those materials in order to make an informed decision on the Garofoli application.

The Legal Framework

[47] It is undisputed that the materials sought by the applicants fall outside the “investigative file”. Consequently, for disclosure to be ordered, the applicants must demonstrate that there is a “reasonable likelihood” or “reasonable possibility” that the materials sought will assist the court in relation to a material issue on the application to quash the search warrant. A mere fishing expedition will not suffice: R. v. McKenzie, 2016 ONSC 242, at para. 53; R. v. Pires; R. v. Lising, 2005 SCC 66, at para. 40; R. v. Ally, 2017 ONSC 5375, at paras. 20, 26.

[48] In this case, the Applicants based their request for additional disclosure primarily on the hypothesis that AA was in fact an agent of the police and not a true confidential informant. A police agent is someone who acts on the direction of the police. He goes into the field at their behest and participates in the illegal transaction in some way. In contrast, a confidential informant provides information about the transaction on his own initiative and does not act at the direction of the police.

[49] It is not enough that what AA did had the effect of assisting the police or even that he orchestrated the arrest – the defence must demonstrate that AA was acting on “the direction of” the police (i.e., that they requested or actively encouraged his involvement). Ultimately, whether a person is an agent or merely a confidential informant is a mixed question of law and fact: R. v. Aravena, 2015 ONCA 250, at paras. 138-39; R. v. G.B., 2000 ONCA 16820, [2000] O.J. No. 2963 (C.A.), at para. 10.

Submissions and Analysis: Why I Found No Evidence of Agency

[50] As noted above, the Applicants advanced primarily three arguments in support of their assertion that at least one of the alleged confidential informants was in fact a police agent:

1. Similar fact patterns in two other cases allegedly involving the same agent, as presented through the evidence of the accused in those cases – Shawn Downey-Smith and Troy Moulton;

2. The postponement by police of the execution of the warrant from Saturday to Sunday – despite having claimed in the ITO that it was urgent – because they needed to time the raid with their agent’s confirmation that the gun was in the residence; and

3. Det. Smith’s presumed use of an agent to access Mr. Mills-Smith’s private Instagram account, in order to circumvent the requirement of obtaining a warrant.

[51] For the following reasons, none of those arguments, either on their own or combined, demonstrate even the reasonable possibility that either of the CIs was a police agent.

Similar Fact Patterns in Multiple Cases

[52] Dealing first with the allegedly similar fact patterns in the cases involving Mr. Downey-Smith and Mr. Moulton, any argument that AA was operating as an agent in all these cases is utterly speculative and unsupported by the evidence.

[53] The most the evidence shows is that AA repeatedly conveyed reliable information to the police. He told police that individuals had firearms in their possession. He knew that because he had given the persons the guns. The police then got a warrant and recovered the weapons, and following a successful raid AA presumably received some benefit.

[54] In particular, there is no evidence that AA went “into the field” and investigated at the behest of the police, or that he was directed by the police to attend a particular location, speak to a specific individual or engage in a particular way with someone. Nor is there evidence of any type of agreement between the police and the source to support the idea that he took the big step of becoming a police agent: R. v. McKenzie, 2016 ONSC 244, at para. 18

[55] Even assuming, as the defence maintains, that AA was in fact the seller of the weapons recovered, that does not make him an agent unless there is evidence he and the police coordinated their approach in a deliberate fashion. No such evidence exists here. On the contrary, the information flow appeared to be one way – AA set up the sales ahead of time, and then alerted his handler as to who was in possession of a weapon and where. The police received and acted upon his information. After the raid proved AA’s information accurate, he received a benefit from the police. That may make AA conniving and self-serving, but it does not amount to working at the direction of the police.

[56] Moreover, that the same pattern recurred on several occasions with several different purchasers does not amount to evidence that AA was working as an agent of the police. As Campbell J. observed at para. 19 of McKenzie, 2016 ONSC 244:

Confidential informants are often selfishly motivated in providing information to the police about the criminal activities of others. They often seek monetary compensation for the confidential information they provide to the police. Confidential informants often provide information to the police about such criminal activities on multiple occasions over time. Indeed, common sense suggests that the more reliable they are proven to be over time, the more likely the police are to continue to rely upon their confidential information. [Emphasis added.]

[57] Similarly, in this case AA was a motivated seller whose information usually led to the recovery of weapons. That encouraged the police to rely upon him the next time. In return, following each successful raid AA received a benefit. But without evidence that he was acting in tandem with or at the direction of the police, there is no agency.

[58] In short, none of this evidence supports the bare assertion by defence counsel that the source of information in this case was an agent of the police.

Postponement of Execution of Warrant to Sunday

[59] The Applicants maintain that the postponement of the execution of the warrant from Saturday, November 3rd to Sunday, November 4th is indicative of the involvement of an agent. In their written submissions, they claim the following:

• The warrant was sought on a “rush” basis by telewarrant on the Saturday because the evidence would otherwise be “lost”, and yet the execution of the search warrant was delayed until the next day; and

• Mr. Ansah’s evidence that he only came into possession of the firearms with which he is charged mid-afternoon on the Sunday is “uncontradicted”.

[60] The defence asserts that together these two factors mean that the police intended to search the Keirstead house on November 3rd, immediately after obtaining judicial approval to do so, but did not “because the deal with the agent did not go ahead as originally scheduled.”

[61] I disagree, for three reasons. First, the Applicants have misdescribed the telewarrant. The words “rush” and “lost” appear nowhere in that document. It was sought as a telewarrant for the very practical reason – as set out on the front page of the ITO – that because it was Saturday it was being submitted “outside the normal operating hours of a sitting Justice of the Peace”.

[62] Second, while the ITO stipulated that given the circumstances described within it was “impractical to wait until November 4th, 2018 for the preservation of evidence”, it also requested a three-day window for its execution. It identified two factors in particular for a possible delay in execution. The first concerns the obvious need to ensure that the target is physically present in the home before police enter. As the ITO states, at p. 11:

Extended authorization to enter and search the said dwelling-house for a period of 3 days but on one occasion only will allow police a window to execute the said warrant when they may be able to verify that Joshua ANSAH is physically present in the area and will be able to be arrested.

[Italics and underlining in original, bold emphasis added.]

[63] That statement in itself indicates that police anticipated the possibility that the warrant could not be executed immediately, and for a very practical reason – the need to ensure Mr. Ansah is inside the residence before they swoop in.

[64] The second factor concerns the need to ensure sufficient police resources were available to launch a raid on this residence. In this particular case, considerable caution was needed in entering the home because Mr. Ansah was already wanted for various firearm related offences from the preceding August.

[65] What goes along with that is the obvious fact that a) a significant sized team of tactical officers would be needed to storm the house and secure the occupants and any firearms found, and b) the ability to assemble that team at any given point in time must depend on what other urgent firearm-related cases police are juggling within Peel region. Again, these very practical and compelling contingencies were identified in the ITO itself, at p. 11:

An extended period of 3 days but on one occasion only for entry is also required because of the nature of how the Peel Regional Police Street Crime Gang Unit operates on a day to day basis. Information is often received regarding illegal possession of firearms throughout the Region of Peel and surrounding area. It is the job of members of the Street Level Organized Crime unit to assess each piece of information and decide what action to take based on a number of factors, the most important factor being safety to the community.

[Italics and underlining in original, bold emphasis added.]

[66] Those two factors, on their own, provide a plausible explanation for why the execution of the warrant was delayed for one day. Beyond that, and the third reason why I reject the defence theory, is Mr. Ansah’s evidence that he initiated this gun purchase, not AA. He phoned AA on the Saturday, seeking to buy a gun. Although AA had previously let Mr. Ansah know he had guns for sale, this particular purchase was instigated by Mr. Ansah. That is inconsistent with AA being directed by the police.

[67] Finally, I found other aspects of Mr. Ansah’s evidence vague or perplexing. In particular:

a) Mr. Ansah claimed he could not recall what reason AA gave for allegedly postponing the meeting from the Saturday until the Sunday;

b) He has no record of any of the numerous cell-phone calls or Facetime calls that he claims occurred between himself and AA on the Saturday and Sunday;

c) He could not recall when on the Sunday AA told him to come by and pick up the gun;

d) He could not recall his own phone number that he was using to communicate with AA at that time; and

e) Mr. Ansah only began to suspect AA of having “set him up” after reviewing the Crown’s disclosure in this case and conferring with Mr. Downey-Smith and Mr. Moulton.

[68] For those reasons, I reject Mr. Ansah’s evidence of a delayed purchase and conclude that the ITO contains, on its face, a highly credible explanation for why the search was postponed for one day.

Police used an agent to access Mr. Mills-Smith’s Instagram Account

[69] This argument relies primarily on the evidence given by Dr. McEwen, and in particular her conclusion that the images in Det. Smith’s report were skewed or inaccurate recaptures from the original Instagram account. Based on that, the Defence wants the court to infer that the police used an agent to initially access the account, who captured and then sent the images over to Det. Smith. According to the Defence, this transfer by the agent, and the ensuing delay, explains both the poor quality of the images in Det. Smith’s report and the discrepancy of the video being five days old, whereas the screenshots were four days old.

[70] While I take no issue with Dr. McEwen’s expertise, the inference that the defence urges the court to draw from her evidence is highly problematic. This became clear from Det. Smith’s evidence, who testified after Dr. McEwen, and in my view proffered a highly plausible explanation for why the images in his report appeared to be skewed or cropped when compared to the originals in Mr. Mills-Smith’s Instagram account. As described above, Det. Smith testified that he used two cellphones to generate the images in his report. The officer explained that using two phones of similar size made it easier to capture the video and obtain the stills shots: the first phone recorded the video directly from Mr. Mills-Smith’s Instagram account. Det. Smith then used a second phone to capture specific images from the video on the first phone.

[71] This is highly consistent with Dr. McEwen’s evidence that the images appeared to be “recaptures” and the video was at least a second-generation recording, i.e., a videotape of a videotape. Thus, while Dr. McEwen may well be correct in finding that the images were regenerated, the explanation here is not about some outside agent, but rather Det. Smith’s methodology. His technique may not be good practice where it is important to assiduously maintain the purity of the original image. But where, as here, the intent was simply to re-create a viable version of the original image, some alteration in the quality does not detract from goal of creating an acceptable investigative report.

[72] Those factors may not explain the discrepancy in the dates on the images. However, Det. Smith testified he was unaware of it, and I found him to be a credible witness. Moreover, defence counsel did not direct Dr. McEwen – their expert – to comment on what that specific anomaly might mean. I conclude that that variance, either on its own or combined with any other evidence in this case, does not create some unknown agent, or even raise the reasonable possibility of one.

THE GAROFOLI APPLICATION

Introduction and Legal Framework

[73] The Garofoli hearing is a pre-trial, threshold evidentiary hearing challenging the validity of an evidence-gathering tool, namely the warrant. The court must determine whether there was any basis upon which the authorizing judge could be satisfied that the relevant pre-conditions to issuant a warrant existed: R. v. Crevier, 2015 ONCA 619, at para. 64.

[74] The warrant is presumptively valid. The party challenging the warrant has the onus of demonstrating it was not validly issued. The issue on a Garofoli hearing is whether the minimum standard for authorizing a search and seizure was established in the ITO. That standard is reasonable and probable grounds to believe that an offence has been committed and there is evidence to be found at the place of the search: R. v. Debot, 1989 SCC 13, [1989] 2 S.C.R. 1140, at pp. 1165-66; Crevier, at para. 66.

[75] Where, as here, the application for the warrant is based largely on information coming from confidential informants, the court must make three inquiries:

➢ Was the information predicting the crime compelling?

➢ Was the source of the information credible?

➢ Was the information corroborated by the police before conducting the search?

[76] These are not discrete inquiries; a judge is to consider the “totality of the circumstances”, such that weakness in one area may be compensated for by strength in another: Debot, at p. 1168; R. v. MacDonald, 2012 ONCA 244, at para. 7; Crevier, at paras. 67, 107.

[77] As part of its disclosure obligations, the Crown provided the accused with a vetted copy of the ITO. Significant portions of this ITO were redacted by the Crown on the basis that disclosure of the information would violate confidential informant privilege, as it may reveal the identity of the sources.

[78] The Crown concedes that the redacted ITO cannot support the issuance of a search warrant. The parties agreed that in order to determine whether the search warrant could be supported, I needed to consider the redacted portions along with a “judicial summary” of the redactions. This accords with the “step six” procedure outlined at p. 1461 of Garofoli, where Sopinka J. stated:

The Trial Judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function.

[79] The trial judge must be satisfied that the summary “includes as much information as is possible to allow the accused to mount both a facial and a sub-facial attack on the ITO while nonetheless ensuring that informer privilege is maintained”: Crevier, at para. 83. A facial attack alleges that the ITO, on its face, does not provide a sufficient basis upon which the issuing judge could issue the warrant. A sub-facial challenge goes behind the ITO to attack the reliability of its content, and asserts that, based on the record as amplified on review, there was insufficient evidence to support the affiant’s assertions: World Bank Group v. Wallace, 2016 SCC 15, at para. 120; Crevier, at paras. 73-74; R. v. Shivrattan, 2017 ONCA 23, at para. 26.

[80] In either case the summary must provide the accused a meaningful basis upon which to challenge whether the affiant made full and frank disclosure regarding the reliability of the informer and his or her tips. However, given the need to protect informer privilege, it cannot be a substitute for full disclosure: Debot; Crevier, at para. 83.

[81] The court should consider whether the summary ought to include the following types of information, to the extent they are relevant and will not risk revealing the identity of the confidential informer (Crevier, at para. 84):

• The source of the informer’s information (first-hand, hearsay, and if hearsay, the source of that hearsay);

• The informer’s relationship with the accused and how they first came into contact;

• The length of time the informer has known the accused and the frequency of contact between them;

• Whether the informer has previously provided information to police;

• Whether previous information provided (if any) has led to arrests, seizures, or convictions;

• Whether past information provided by the informer has ever been proven unreliable or false;

• Whether the informer has a criminal record and, if yes, whether the unredacted ITO includes details of the convictions or charges or whether a copy of the criminal record was appended;

• Whether the informer has convictions for offences of dishonesty or against the administration of justice;

• The informer’s motivation for speaking to police, including whether consideration was sought or arranged;

• Whether the informer was instructed on the penalties for giving false information;

• Whether descriptions provided by the informer match the accused or the target location;

• The degree of detail of the information that the informer provided to police;

• The recency or timing of the information that the informer provided to police;

• Any discrepancies between the information of one informer and another;

• Any aspects of the informer’s information that are contradicted by police investigation or otherwise detract from its credibility; and

• Any errors or inaccuracies that exist in the ITO, and their nature (e.g. typographical errors).

[82] As the Court of Appeal noted in Crevier, that list is neither prescriptive nor exhaustive.

[83] The Court of Appeal in Crevier also stipulated that, where possible, the summary should track the redactions in the ITO, so that the accused will know not only what was redacted, but also where in the ITO the redacted information is contained. As well, the judicial summary should say if the nature of a redaction in a specific paragraph of the ITO cannot be summarized: para. 85.

Process and Observations re the Judicial Summary

[84] On November 16, the Crown provided the first draft of its proposed summary to the court and defence counsel. On November 18, defence counsel made submissions regarding the Crown’s first version. Later that day, the Crown sent out its second draft of the proposed summary.

[85] On November 20, the court and the Crown met ex parte regarding the Court’s proposed changes. Later that day, the Crown provided the court with a third draft of the proposed summary, which incorporated most but not all of the court’s proposed changes.

[86] On November 23, the court and Crown again met ex parte. The Crown incorporated additional changes proposed by the court. The Crown then provided the court and Defence counsel with the fourth draft of proposed summary.

[87] On November 25, Defence counsel requested that various redactions be lifted, and that the summary be expanded. I subsequently conferred ex parte with the Crown and then made further additions to the summary. Later that day, the fifth and final version of the summary was provided to counsel. While the Defence maintained that the summary remained inadequate, I rejected that argument as, in my view, the final summary provided considerable and important information beyond the redacted ITO sufficient to permit any attack on the warrant, including whether the information was compelling and corroborated, and whether the informer was credible.

[88] Importantly, in performing that exercise, I kept in mind that the Garofoli “step six” procedure does not envisage extensive detail in the summary. As Sopinka J. observed, a trial judge should accede to the Crown’s request to consider excised materials if she is satisfied that the accused is “sufficiently aware of the nature of the excised material to challenge it in argument or by evidence” (emphasis added). Accordingly, it is not the specific details of the redacted materials that should be included in the summary, but rather a description of the “nature” or type of information that has been excluded: R. v. Boussoulas, 2014 ONSC 5542, at para. 68.

[89] In this case, I concluded that the final version of the summary provided to the Applicants with the necessary information for any challenge they might mount to the ITO. In particular, the summary confirmed that the redacted portions of the ITO contained the following information:

• The names of the handlers who received the information from the confidential informants, and that the information was relayed by the handlers directly to the affiant;

• When the handlers received the information from their sources (including an error made with respect to one of the dates) and when they conveyed it to the affiant;

• The nature of the source’s motivation for providing information to the police;

• That the sources had been advised that no benefit would be provided should the information turn out to be misleading or false;

• Whether the sources had previously provided information to the police and, if so, whether that information was proven to be accurate or corroborated through police investigation;

• Whether the sources were involved in a criminal lifestyle;

• Whether either of the sources has a criminal record and, if so, that a verified and complete copy thereof was included;

• Whether either of the sources has outstanding charges, and if so, their specifics;

• To what extent previous information provided by the sources (if any) has corresponded with any previous seizures and arrests made by the police;

• How each of the sources identified or described the target;

• That CI1 gave a description of the target’s residence;

• A detailed basis for CI1’s belief that the target was in possession of a handgun in his residence and whether the information is first-hand or hearsay, and if hearsay, the source of that hearsay;

• When CI1 became aware of the target being in possession of a firearm;

• A detailed basis for CI2’s belief that the target is dealing in narcotics and whether the information is first-hand or hearsay, and if hearsay, the source of that hearsay; and

• Where information was corroborated by police, the basis for that corroboration.

[90] In sum, while the judicial summary does not detail how CI1 and CI2 acquired their information about Mr. Ansah being in possession of a firearm and dealing narcotics, it does demonstrate that they had an informed basis for that belief – the precise details of which were before the JP when he evaluated the unredacted ITO. The summary also indicates not only what was redacted but also where in the ITO the redacted information is contained. Finally, the summary identifies the two brief portions of the ITO that could not be summarized, and, in accordance with para. 87 of Crevier, I have disregarded those portions.

[91] For those reasons, I concluded that the judicial summary provided an adequate substitute for full disclosure.

Additional Disclosure Request by Defence re Affiant’s Notes

[92] On November 26, following the release of the finalized judicial summary, the court and counsel reconvened to organize dates for submissions regarding the proposed cross-examination of the affiant and arguments on the s. 8 Instagram issue. Defence counsel then asked for additional production; in particular, the unredacted notes of the affiant or a summary thereof. Defence counsel had not requested these documents at any point earlier – including during the actual disclosure motion that it previously initiated. The Defence argued that the notes were necessary to address the contrast between the small amount of space the notes occupied in the affiant’s notebook (less than a page) and the significant amount of information produced in the ITO.

[93] The Crown objected to producing these notes on the basis that it might expose the informant. After further ex parte discussions with the Crown regarding this late disclosure request, I ordered the Crown to produce a summary of the affiant’s notes pertaining to November 3, when the ITO was issued. The summary identified the times at which the affiant received information from various officers regarding the pending ITO, and when he first contacted the telewarrant centre. In particular, the summary indicates that, with reference to a shift that began at 1600 hrs. on Saturday, November 3, 2018 the affiant’s notes reveal that:

• He spoke with officers regarding the pending ITO at 16:55, 13:15, and 17:10 (those times are recorded in that order in the notes);

• Between 17:10 and 18:31, he received information from two other officers regarding the pending ITO; and

• At 18:31, he sent the initial email to the telewarrant centre.

[94] Along with the summary the Crown produced a Will Say from the affiant, wherein he indicated that upon receipt of information from the handlers for each of the informants, he typed that information directly into the corresponding Appendix of the ITO.

[95] Following receipt of that information the defence moved to cross-examine the affiant.

Motion to Cross-examine the Affiant

The Legal Test

[96] There is no absolute or unrestricted right to cross-examination. Our Supreme Court has identified three reasons why leave is required: a) concern for the prolixity of proceedings; b) the need to protect the identity of informants, and c) a means of ensuring that s. 8 challenges remain focused and on track: Pires; Lising, at paras. 31, 33-34.

[97] While the test on a leave application is not onerous, there is generally only a narrow window allowed for cross-examination: the accused must show a “reasonable likelihood” that the proposed cross-examination will assist the judge in determining whether there was a basis upon which the authorizing judge could have granted the warrant: Pires; Lising, at para. 40; R. v. Victoria, 2018 ONCA 69, at paras. 76, 79, 85; R. v. Green, 2015 ONCA 579, at paras. 34-36; McKenzie, 2016 ONSC 244, at paras. 8-11.

[98] Put more specifically, the applicant must demonstrate a reasonable likelihood that cross-examination will help to determine the honesty and/or reasonableness of the affiant’s grounds for believing the warrant should issue. Importantly, the focus is on the honesty and reasonableness of the affiant’s belief as to the existence of the requisite grounds, and not on the ultimate accuracy of the information relied on by the affiant. Cross-examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful, unless it can also support the inference that the affiant knew or ought to have known that it was false: Victoria, at paras. 80, 85; Green, at para. 34.

Submissions and Analysis

[99] Mr. Rusonik argued that given the timing and method of the affiant’s transfer of the information he received into the ITO, there is a “reasonable possibility” that the affiant here was “negligent” in recording the information he received. Mr. Rusonic repeatedly referred the court to the Shivrattan decision for support. He relies in particular on the statement at para. 26 that “on a sub-facial challenge, counsel may also argue that the augmented record placed before the reviewing judge demonstrates that the affiant deliberately, or at least recklessly, misled the issuing judge, rendering the entire ITO unreliable as a basis upon which to issue a warrant” (emphasis added).

[100] In Shivrattan, there were significant inconsistencies between what the affiant attributed to the accused’s landlord in the ITO (concerns regarding accused drug dealing from the apartment) and what other sources indicated she said and her own testimony at the preliminary inquiry. There is nothing in the record in our case to support anything like that. In particular, there is no evidence to suggest that anything our affiant relied upon from the sources was contradicted by other information. Moreover, Shivrattan involved an affiant who “deliberately, or at least recklessly, misled the issuing judge,” whereas here Mr. Rusonik postulates that simple “negligence” is sufficient: at para. 26

[101] Even if the principle from Shivrattan is expanded to include mere “negligence”, there is no evidence here to suggest the affiant was careless. Mr. Rusonik argued that given the affiant “made no notes” of the information he received, and he received some of that information before his shift even began that day, there is a reasonable possibility that his presentation of that information in the ITO was negligent. As for the affiant’s Will Say explaining he typed the information from the source handlers “directly” into the ITO, Mr. Rusonik argued that “cure” is ex post facto and, therefore, “must withstand cross-examination”[^5].

[102] I agree with the Crown that that approach turns the test on its head. With or without Officer Canning’s Will Say, Mr. Rusonik must first point to something in the existing record that shows that the information in the ITO was false (or recklessly recorded) and that the affiant knew that. No such thing exists. The defence is merely speculating that it likely exists based on nothing more than that the affiant a) typed his notes directly into the ITO, and b) received some of the information a few hours before his shift started that day.

[103] These concerns do not arise from the ITO itself, but rather from the timing of the affiant’s notebook entries. How will cross-examination about the manner and timing of the affiant’s recording of the information help the court to determine whether there was a sufficient basis upon which the authorizing judge could have granted the warrant? At para. 85, Victoria tells us it will be of no help:

“…to obtain leave, the appellant was required to show that the proposed cross-examination was likely to assist in the determination of the single question to be decided on the Garofoli review – whether there is a basis upon which the authorizing justice could issue the warrant. Cross-examination will only tend to discredit the existence of a precondition to the issuance of the warrant if it can show that the affiant knew or ought to have known that the information contained in the ITO was false. There was no evidence before the trial judge to suggest this was the case. The appellant’s quarrel was with the inferences the affiant drew from the primary facts about which there was no dispute. Complaints about an affiant’s inferences, like claims of omissions, inconsistencies or conclusory or inaccurate statements afford no basis for cross-examination. [Emphasis added.]

[104] This echoes the approach taken by the Court of Appeal of Ontario in R. v. Ambrose, 1994 ONCA 1378, [1994] O.J. No. 1457 (C.A.), at para. 7:

The appellants adduced no evidence in support of their application but rather relied upon suggested inconsistencies, omissions and conclusory statements in Cst. Cousins’ affidavit and upon evidence given by her at the trial. In our view, those matters, standing alone, did not show a basis for the view that the proposed cross-examination, either of Cst. Cousins or Sgt. Gulkiewich (even assuming the latter to be appropriate), “will elicit testimony tending to discredit the existence of one of the preconditions to the authorization”. We are therefore not persuaded that the trial judge erred in refusing leave to cross- examine. [Emphasis added.]

[105] Similarly, defence counsel’s assertions here about errors or omissions that must have occurred are irrelevant unless the defence can demonstrate on the evidence that they must have eroded the affiant’s ability to rely on that information. Here the defence has not adduced or referred to any such evidence. Nor is it anything more than conjecture that the officer might have been negligent or reckless. In other words, any proposed cross-examination is merely a “fishing expedition”: see R. v. Washington, 1997 ONCA 3968, [1997] O.J. No. 4163 (C.A.), at paras. 10-11.

[106] The speculative nature of this motion became apparent when Mr. Rusonik specified for the court the areas of questioning he would pursue if cross-examination was permitted. He identified them as follows:

1. Where was the affiant before he began his shift?

2. How was he able to record the information he received directly into the ITO if he was not on shift at the time?

3. As some of the information he received was likely investigated further by the police, what notes did he make of that?

[107] The third question merely speculates that there was further investigation, in the absence of any evidence that there was – in other words, a fishing expedition. As for the first two questions, I agree with the Crown that they address nothing more than the mechanics by which the affiant recorded and transferred the information that he received from the handlers into the ITO. Put another way, what Mr. Rusonik is really attacking here is the accuracy and/or the reliability of what the affiant recorded in the ITO, based on his timing and method of recording. This is the same as saying that the affiant made errors or omissions in the recording, which the Court of Appeal for Ontario has repeatedly said is not a basis for cross-examination unless there is evidence to show that the affiant must have known what he was recording was actually false.

[108] As no such evidence has been adduced, the only purpose for such questions is to potentially illustrate omissions or inaccuracies in the affiant’s capture and recording of the information – the very things appellate authorities have repeatedly said do not, on their own, afford a basis for cross-examination.

[109] The motion was therefore dismissed.

Decision on the Garofoli Application: Were there Sufficient Grounds to Issue the Warrant?

The Applicants’ revised Agency Theory

[110] Following receipt of my ruling dismissing their motion for disclosure, Applicants’ counsel advised the court that they intended to “rethink” their sub-facial challenge to the ITO. Later, when asked by the court whether they were still pursuing the “agency” theory, they advised the court that they had “abandoned” their initial understanding of “what happened here”. However, during final submissions, counsel advised they still believed a police agent was involved in this transaction, but were now of the view that he was someone other than one of the informants – i.e., that while the claimed informants here were not themselves agents, they were merely “straw affiants” or “funnels through which the agent’s information was passed.”

[111] This alternate theory (more like a “Hail Mary” pass) is as specious as the original. Defence counsel offered no new or additional evidence to support it. They rely on the same evidence that I have already determined failed to raise even a reasonable possibility that there was an agent at work here. It does not matter whether they go with their original theory (that one of the sources was in fact an agent) or their revised theory (that the agent was working behind the scenes). There is no evidence whatsoever that an agent was at play in this investigation, in any way, shape, or form.

Submissions and Analysis

[112] I turn now to consider whether the original, unredacted ITO disclosed reasonable grounds to believe that evidence of illegal firearms would be obtained through the search and whether, in particular, the information from the sources was compelling, credible and corroborated.[^6] As noted above, the test for the reviewing court is whether, based on the material before the authorizing judge (as amplified on the review), he or she could have granted the search warrant: Crevier, at para. 74; Victoria, at para. 76.

Was the information compelling?

[113] The information received from both sources is compelling in both its detail and accuracy. With respect to CI1, the issuing justice was clearly made aware of:

• Details the source provided regarding Mr. Ansah’s physical description;

• The source identified Mr. Ansah from a photograph as the person known to them;

• The specified name the source knew Mr. Ansah to go by;

• Detailed source information in relation to Mr. Ansah’s criminal activities;

• The description the source provided of Mr. Ansah’s residence;

• Disclosure of certain aspects of Mr. Ansah’s residence that were corroborated by police;

• A specified time frame with respect to when the source became aware that Mr. Ansah was in possession of a firearm; and

• The specific basis on which the source believed that Mr. Ansah possessed a firearm and whether the information provided was first or second-hand.

[114] With respect to CI2, the issuing justice was clearly made aware of:

• Details the source provided regarding Mr. Ansah’s physical description;

• The specified name the source knew Mr. Ansah to go by, the fact the information was corroborated by the source handler, and the basis of that corroboration;

• Detailed source information in relation to Mr Ansah’s drug trafficking activities;

• A specified time frame with respect to when the source became aware of Mr. Ansah being involved in drug trafficking;

• Information provided by the source in relation to Mr. Ansah dealing drugs;

• The specific basis on which the source believed Mr. Ansah was dealing drugs and whether the information provided was first or second-hand.

[115] The unredacted ITO contains information with respect to each of the above categories that is detailed and specific. The Applicants were informed through the judicial summary that the types of information set out above were before the issuing justice. The summary also identifies the presence of an error with respect to the date on which the handler for CI1 received information from the source. In my view, that error does not detract from the compelling nature of the information, particularly given that the information was acted upon within a reasonable time.

Were the informants credible?

[116] On the credibility component, there was ample information provided to the issuing justice permitting him to determine whether the sources were proven and credible. In particular, with respect to each of the sources, the issuing justice was made aware of:

• The nature of the source’s motivation for providing information;

• That the sources were advised that no benefit would be provided should the information turn out to be misleading or false;

• Whether the sources had previously provided information to the police and, if so, whether that information was proven to be accurate or corroborated through police investigation;

• Whether previous information provided by the sources led to arrests, seizures, or convictions, and to what extent information provided actually corresponded with any seizures or arrests made by the police;

• Whether or not the sources had a criminal record, including crimes of dishonesty, and, if so, that a verified and complete copy was provided;

• Whether either of the sources had outstanding charges, including crimes of dishonesty, and if so, their specifics.

[117] I do not agree with the Applicants’ assertion at paras. 9-10 of their factum that the affiant was obliged to investigate and disclose details relating to each informant regarding their “character, mental health, employment status, and whether or not they harboured a specific animosity toward the Applicants.” Absent any indication to the contrary, the affiant was permitted to rely on information as relayed to him by each handler, and was under no obligation to conduct his own investigation with respect to the information he received: World Bank Group, at para. 123.

[118] Moreover, some of the assertions made by defence counsel on this issue in their factum are incorrect. At para. 15 of their factum, counsel state:

There is no indication of the amount of times that CI#1 had provided information and the amount of times that they had been proven correct, including whether the particular information of criminality provided match the criminality found and if it led to charges and convictions.

[119] In fact, as the summary makes clear (at p. 3, para. 6), the ITO discloses whether previous information provided by the source has led to “arrests, seizures or convictions” and “specifies to what extent previous information provided by the source has corresponded with previous seizures and arrests made by the police” (emphasis added).

[120] Further, at para. 16 of their factum, counsel state:

The fact that CI#2 has no proven track record must also be taken into account. In fact, in this case the affiant impermissibly used misleading language to indicate that the information provided by CI #2 is reliable, in the absence of a track record… [Emphasis added.]

[121] Again, this is inaccurate. Nowhere in the summary is it suggested that CI2 has “no proven track record”. At p. 5, para. 6 the summary indicates that the ITO discloses whether previous information provided by the source has led to “arrests, seizures or convictions” and “specifies to what extent previous information provided by the source has corresponded with previous seizures and arrests made by the police” (emphasis added). Defence counsel has chosen, without foundation, to infer from that statement that CI2 has “no track record”.

[122] Having regard to the particulars contained in the unredacted ITO, I am satisfied there is a strong basis on which the issuing justice could determine whether the tips from both CI1 and CI2 were credible.

Was the information corroborated?

[123] Finally, turning to the corroboration component, the result is somewhat mixed. I agree with the Applicants that there was limited surveillance conducted before the raid. However, this is similar to the situation in Crevier, where the ITO relied greatly upon information from two confidential sources with surveillance limited to a few hours. There the Court of Appeal noted, at para. 109:

…[U]nlawful possession of a firearm in a person’s home is difficult to corroborate through surveillance. Additionally, it could be irresponsible for police to wait until independent investigation alone provides the sufficient grounds for a search when they already have the requisite reasonable and probable grounds based on compelling and reliable information from a confidential informer. Delaying a search in such circumstances would allow an illegal handgun to remain at large and pose a threat to the community. [Emphasis added.]

See also R. v. Barnes, 2015 ONSC 6462 (Garton J.), at paras. 95-96.

[124] Moreover, given the time constraints, police made reasonable efforts to corroborate the information that was provided by both informants, and were able to do so to a meaningful degree, as outlined in Appendix C of the ITO. They observed Mr. Ansah exit and return through the front door of the Keirstead house after participating in what was believed to be a drug transaction. It was open to the affiant to indicate to the issuing justice that based on his experience, firearms, and drugs go hand in hand – an association that could easily be found to be objectively reasonable: R. v. Lakan, 2018 ONSC 3649, at para. 75.

[125] To the extent that the surveillance may be lacking, as in Crevier, I find that the strengths in the other two Debot factors compensated for the limited amount of corroboration: Crevier, at para. 108.

Did the affiant deliberately mislead the issuing justice?

[126] In their written submissions,[^7] defence counsel returned to their theme that the ITO is unreliable because there were “problems with the affiant’s note-taking.” To buttress that argument, Mr. Rusonik noted several cases as supporting his position, and identified what he considered to be the relevant paragraphs thereof, as follows:

• R. v. Mulvenna, [2020] O.J. No. 1242 (C.J.), at paras. 75-78;

• R. v. Debartolo, 2018 ONSC 916, at paras. 96-97;

• R. v. Eagle, [1996] O.J. No. 2867 (C.J.), at paras. 12, 15 and 19; and

• Wood v. Schaeffer, 2013 SCC 71, at paras. 62-68.

[127] The Wood decision contains strong comments regarding police note taking in general, but it was not made in a Garofoli context, where an affiant may need to expeditiously transfer relevant information into an ITO.

[128] As for the three remaining decisions, I agree they all address reliability concerns arising out of the affiant’s failure to take notes. But the particular paragraphs cited by Defence counsel ignore the vital context in which those concerns arose. In Mulvenna, the court found that in addition to several proven misrepresentations in the ITO, the affiant “lied under oath” about a report he claimed to have reviewed: paras. 60-68. In Debartolo, Forestell J. concluded that the affiant made numerous “deliberate” misrepresentations which were “calculated” to mislead the issuing justice: paras. 94-95. And in Eagle, after finding intentional omissions of a very serious nature, the court concluded that the affiant “displayed a reckless disregard for the truth”: para. 18. Here, by contrast, there is no reliable evidence that the affiant deliberately or recklessly misled the issuing justice.

Conclusion on the Garofoli application

[129] For the reasons set out above, I am satisfied there was a proper basis on which the issuing justice could have issued a warrant to search the Keirstead house. There was no violation of Mr. Ansah’s s. 8 Charter rights.

Section 24(2) Charter Analysis

[130] In case I am wrong in finding there was no s. 8 Charter violation, I will briefly set out my views on the admissibility of the firearms under s. 24 (2).

[131] In R. v. Grant, 2009 SCC 32, the Supreme Court identified three lines of inquiry relevant to determining whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute, namely:

1. The seriousness of the Charter-infringing state conduct;

2. The impact of the breach on the Charter-protected interests of the accused; and

3. Society’s interest in the adjudication of the case on its merits.

Inquiry 1: Seriousness of the Charter-infringing State conduct

[132] If there was a Charter breach in this case wherein the police actively engaged an agent who participated in the gun purchase, which the affiant knew of (or recklessly disregarded), then the state must disassociate itself from what would be a clearly misleading ITO. That factors pulls strongly in favour of exclusion.

Inquiry 2: Impact on the accused’s Charter-protected interests:

[133] This inquiry requires the court to consider the seriousness of the breaches from the perspective of the accused.

[134] It is well established that a dwelling house attracts a high expectation of privacy. A Charter violation in this case would be serious because it involved a search of the applicants’ residence in the absence of reasonable and probable grounds. This factor therefore also supports exclusion of the evidence.

Inquiry 3: Society’s interest in an adjudication on the merits

[135] This factors clearly favors inclusion of the evidence, given a) the evidence regarding multiple firearms is highly reliable, b) the evidence is essential to the Crown’s case, and c) the risk to human safety posed by handguns. Those considerations favour admission in order to promote the public interest in having the case adjudicated on its merits.

[136] However, as the Supreme Court observed in R. v. Paterson, 2017 SCC 15, at para. 55, the third Grant factor cannot be allowed to prevail over all other considerations, particularly where the impugned conduct is serious and has had a substantial impact on Charter protected interests. In that case, the evidence must be excluded.

Conclusion on Garofoli application

[137] For the preceding reasons, I find that a) there was no breach of s. 8 in the issuance of the warrant, and b) if there was a breach involving the concealment of an agent, the evidence should be excluded under s. 24(2).

CHARTER APPLICATION re INSTAGRAM SEARCH

Introduction

[138] Mr. Mills-Smith seeks to exclude the contents of his Instagram account, which were accessed by police after his arrest. He alleges that this information was found and seized pursuant to an unreasonable search, contrary to s. 8 of the Charter.

[139] Much of the relevant factual background is set out above (see paras. 13, 16-18) and in the ASF (Ex. 26A). To briefly recap:

1. During the search of the Keirstead house, police found various items inside a safe in one of the bedrooms, including a loaded handgun, an Air Jordan satchel, a gold grill for teeth, and a sales receipt from Sport Chek;

2. Police viewed security footage from the Sport Chek store which depicts Mr. Mills-Smith;

3. Det. Smith testified that through the use of a covert account he accessed Mr. Mills-Smith’s private Instagram account on November 7, 2018, and created his report;

4. The Instagram account at issue in this application belongs to Mr. Mills-Smith, and the video and photos contained within that account depict Mr. Mills-Smith wearing the same Air Jordan satchel and same gold grill found in the safe; and

5. Mr. Mills-Smith was in possession of the firearm found in the safe.

The Legal Framework

[140] It is undisputed that the search of Mr. Mills-Smith’s Instagram account was a warrantless search, and thus presumptively unreasonable under s. 8. The burden would therefore normally be on the Crown to establish on a balance of probabilities that the search was authorized by law, the law is reasonable, and the search was carried out in a reasonable manner: R. v. Collins, 1987 SCC 84, [1987] 1 S.C.R. 265, at p. 278.

[141] However, the parties agree that the accused must first establish standing to argue that the evidence should be excluded, i.e., that he had a reasonable expectation of privacy in the information at issue. As stipulated by the Supreme Court in R. v. Marakah, 2017 SCC 59, at paras. 11-12, this involves four considerations:

1. The subject matter of the search;

2. Whether the Applicant had a direct interest in the subject matter;

3. Whether the Applicant had a subjective expectation of privacy in the subject matter; and

4. Whether the Applicant’s subjective expectation of privacy is objectively reasonable.

[142] The parties further agree that it is the fourth prong that is in issue here, namely whether Mr. Mills-Smith’s subjective expectation of privacy was objectively reasonable. Their oral submissions were confined to that question.

Was Mr. Mills-Smith’s subjective expectation of privacy objectively reasonable?

[143] Counsel for Mr. Mills-Smith did not address this specific issue in his written submissions. Counsel’s factum focused on whether Mr. Mills-Smith had a subjective expectation of privacy in his Instagram account (which the Crown has conceded), but not on whether this subjective expectation was objectively reasonable.

[144] Defence counsel was not aware of any authority supporting his assertion that an accused’s subjective expectation of privacy in his IG account is objectively reasonable. During oral submissions counsel submitted that the argument here turns on whether Mr. Mills-Smith “let a stranger into his account”. He conceded that if the applicant had admitted a stranger, that eroded any reasonable expectation of privacy. Counsel maintained, however, that Det. Smith “did not come across as a stranger”, but instead “usurped the identity of someone that Mr. Mills-Smith knew and trusted” or “posed as a real person who was known to Mr. Mills-Smith”. That, argues the Defence, is how he “tricked” his way into the account without Mr. Mills-Smith realizing it.

[145] There are three problems with that argument. First, at no point during cross-examination did defence counsel confront Det. Smith with that impersonation theory, thus violating the rule in Browne v. Dunn, [1893] J.C.J. No. 5 (U.K. H.L.).

[146] Second, Det. Smith’s uncontradicted evidence is that he used a “covert” account to access Mr. Mills-Smith’s Instagram account, which by definition implies that the access was through a fictitious, undercover account, rather than the account of an actual person. There is no evidence whatsoever that Det. Smith engaged in trickery by impersonating one of Mr. Mills-Smith’s friends or followers, or that he used an account belonging to one of Mr. Mills-Smith’s followers.

[147] Third, if there was a crack in the vault that is the responsibility of Mr. Mills-Smith. While he labelled the account as “private”, he did a poor job maintaining it as such. He carelessly granted access to his account to a stranger, without taking precautions to insure their identity. Defence counsel pointed to Dr. McEwen’s evidence that 781 followers are a relatively small number as proof that the applicant was selective and took precautions to secure his users. While that number may support his subjective expectation of privacy, it does not mean it was objectively reasonable. The moment he accepted Det. Smith as a follower, without ascertaining his identity, he waived any expectation of privacy he might have had in the contents. As the Supreme Court stated in Marakah, at para. 30, “[t]he question always comes back to what the individual, in all of the circumstances, should reasonably have expected” (emphasis added).

[148] I find this is not “trickery” by the officer, as the defence maintains, but rather negligence by the account holder. By communicating online with a person he had never met before, Mr. Mills-Smith opened himself up to the risk that the other person was a police officer. As the Supreme Court has stated repeatedly, the Charter cannot be invoked “to protect us against a poor choice of friends”: R. v. Mills, 2019 SCC 22, at para. 50; R. v. Duarte, 1990 SCC 150, [1990] 1 S.C.R. 30, at p. 57.

[149] In sum, while other individuals may safeguard their private Instagram accounts carefully, in this case it is clear that Mr. Mills-Smith did not adequately vet who he let in. He therefore had no objective reason to be surprised that a police officer using an undercover account could get access.

[150] In those circumstances, I find it was not objectively reasonable for Mr. Mills-Smith to expect his account would remain private. I therefore find that the search of his Instagram account did not breach s. 8 of the Charter.

Section 24(2) Charter Analysis

[151] In case I am wrong in finding there was no s. 8 Charter violation, I will briefly set out my views on the admissibility of the contents of Mr. Mills-Smith’s Instagram account under s. 24 (2).

[152] Applying the analysis from Grant, under the first branch if there was a breach of s. 8, it was not serious. I find Det. Smith acted in good faith and did not deliberately or knowingly circumvent the law. The law surrounding privacy interests in electronic communications is in an evolving state, and Det. Smith followed what he believed to be the law. This factor favours inclusion.

[153] On the second branch of Grant, given the minimal safeguards the applicant exercised over his Instagram account, and that hundreds of people already had access to it, any invasion of his privacy is on the low end. This factor also supports inclusion.

[154] On the third branch, the evidence (a loaded handgun) is reliable and necessary for the Crown to prove a serious crime. Consequently, there is a strong societal interest in having the case tried on its merits.

[155] In conclusion, all three factors satisfy me that the evidence should be admitted.

Conclusion on Instagram Application

[156] For the preceding reasons, I find that a) there was no breach of s. 8, and b) even if there was, the evidence should not be excluded under s. 24(2).

OVERALL CONCLUSIONS

[157] For the reasons set out above, I have concluded:

1. The motion for disclosure is dismissed;

2. Leave to cross-examine the affiant is denied;

3. The issuance of the warrant did not breach s. 8; and

4. The Instagram search did not breach s.8.

[158] Consequently, both applications are dismissed.

Baltman J.

DATE: January 11, 2021

COURT FILE NO.: CR-20-69

DATE: 20210111

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Ansah & Mills-Smith

BEFORE: Baltman J.

COUNSEL: C. Agatiello for the Crown

R. Rusonik, R. Mwangi, N. Sookram and E. Lam for the Applicants

Reasons on s. 8 Charter Applications

Baltman J.

DATE: January 11, 2021

[^1]: Many of these facts are “admissions” contained in the Agreed Statement of Fact (Ex. 26A) [^2]: October 23, 27-28, and November 3, 9. In the course of the ex parte hearing, I ordered the Crown to produce various documents to the court. The Crown complied. That production order, along with the resultant documents and any other materials considered during the ex parte hearing, were filed as sealed exhibits within that hearing. [^3]: R. v. Ansah, 2020 ONSC 6905, at para. 9 [^4]: Also disclosed to the defence was Det. Frape’s notes (Ex. 19), which log Mr. Ansah’s movements from 7:30 p.m. onward, and state that police followed Mr. Ansah driving away from the Keirstead house, weaving through several streets, and ultimately arriving at a plaza where other people entered his car. The notes further state that shortly after 8:00 p.m. police lost track of Mr. Ansah, and discontinued observations. [^5]: Ex. 32: Defence’s reply to Crown’s Oral submissions with respect to cross examination. [^6]: In this section of the decision, certain portions of the Crown’s written submissions have been reproduced, sometimes verbatim. However, the reasoning throughout is my own. [^7]: Final Submissions from Mr. Rusonik dated Dec. 9, 2020, p. 20, para. 49 (Ex. 34).