Superior Court of Justice – Ontario

COURT FILE NO.: CR- 21-30000455-0000

DATE: 20220207

RE: HER MAJESTY THE QUEEN, Respondent

AND: Jabril ABDIRAHMAN, Abdullahi ABDIKARIM, Abdinaim Hussein, Applicants

BEFORE: S.F. Dunphy J.

COUNSEL: James Damaskinos and Bari Crackower (PPSC) and Philip Enright (MAG), for the Crown/Respondent Saul Moshé-Steinberg, David Newton and Jamil Sawani, for the Defendants/Applicants

HEARD at Toronto: January 30, 2022

REASONS FOR DECISION – Garofoli Step 6

[1] The three co-accused applicants collectively face twenty counts under an indictment that alleges unlawful possession of two loaded prohibited handguns, various breaches of weapons and firearm prohibition orders, various breaches of release conditions and possession of fentanyl and cocaine for the purposes of trafficking (the three co-accused face differing combinations of the twenty counts included). I am in the process of hearing a joint pre-trial application brought by the accused seeking relief under s. 24(2) of the Canadian Charter of Rights and Freedoms for various alleged violations of their rights under s. 7, 8, 9, 10(a), 10(b) and 11(d) thereof.

[2] Substantially all of the counts in the indictment rely directly or indirectly upon the admissibility of evidence seized during the execution of a search warrant by Toronto Police Services on May 25, 2020 on a Mercedes automobile and a condominium unit on McMahon Drive in North York.

[3] Among other rulings sought by the accused is a ruling that the search warrant in question ought never to have been issued such that the search conducted under it was a breach of the s. 8 Charter rights of the accused. The Information to Obtain (“ITO”) upon which the warrant was based relied very substantially upon certain information outlined therein that was sourced from a Confidential Informant (or “CI”). This preliminary ruling concerns the Confidential Informant privilege asserted by the Crown, the redactions made by the Crown to the ITO for the purposes of this review and the adequacy of the proposed judicial summary of those redactions.

[4] These are my reasons for decision on the “Step 6 Garofoli” aspect of this application. For the purposes of this ruling, I have reviewed the warrant, the ITO upon which the decision to issue the warrant was based as redacted by the Crown, a proposed judicial summary of those redactions prepared by the Crown and a copy of the original ITO with the redactions highlighted for my benefit. The defence has of course not had access to the last of these documents.

[5] The issues before me on this step 6 preliminary ruling are concisely summarized by Watt J.A. in R. v. Reid, 2016 ONCA 524 at para. 86 as follows:

[86] Step six adopts a quid pro quo approach to this balancing process. This involves, on the one hand, permitting the Crown to rely upon the unredacted ITO, which has not been disclosed to the defence, to support the issuance of the warrant. And on the other hand, permitting the defence to challenge the issuance of the warrant, and thus the reasonableness of the search, on the basis of the redacted ITO and a judicial summary of the nature of the redacted material. The Crown may only invoke step six, however, where the summary makes the accused sufficiently aware of the nature of the excised material to challenge it in argument or by evidence: Crevier, at para. 43; Garofoli, at p. 1461 S.C.R. A summary that fails to meet this standard disentitles the Crown to rely on the unredacted ITO to sustain the issuance of the warrant as the enabling search authority.

[6] Does the proposed judicial summary satisfy the requirement of making the accused “sufficiently aware of the nature of the excised material to challenge it in argument or by evidence”? In my view it does and the Crown may appropriately rely upon the unredacted ITO to support the issuance of the warrant and the reasonableness of the search that followed.

[7] The adequacy of the proposed summary must be considered in light of the purposes to which it will be put. This is a pre-trial application, the object of which is not to establish the guilt or innocence of the accused but to establish “whether there is any basis upon which the issuing justice could have been satisfied that the statutory preconditions to the issuance of the warrant had been met”: Reid para. 94. My task in conducting that review is not to substitute my judgment for that of the issuing justice, but to inquire whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have been issued. Where that evidence includes information obtained from one or more CI’s, such evidence must be assessed in the context of the additional requirements (compelling information, a credible source and degree of corroboration through police investigation) required by the case law: R. v. Debot, 1989 SCC 13, [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 11 and R. v. Araujo, 2000 SCC 65, [2000] 2 SCR 992.

[8] The redactions most certainly exclude significant categories of evidence that the defence might otherwise wish to comb through to seek flaws or deficiencies in this or any other warrant. These include such things as the identification of the police force with which the CI dealt, the criminal antecedents, if any, of the CI, personal characteristics of the CI including gender, the motivation of the CI, identifying details of prior instances where the CI has provided information leading to an arrest, the means by which the CI came into possession of the information and the specific date or dates when such information was acquired.

[9] Having reviewed the redacted material, I have no hesitation in concluding that such redactions were necessary in the sense that the logical connection between the redacted information and the reasonable potential for the disclosure to narrow materially the universe of persons who may have been the source of the information has been made out as having the necessity of preserving the confidentiality of the source. The redactions are neither arbitrary nor tenuous – they are reasonably necessary to advance the purpose (the protection of CI privilege) for which they were made.

[10] What the proposed judicial summary does provide is a line-by-line summary of each and every redaction with such relevant particulars of the nature of the information redacted as can be provided without tending to identify the CI. What is required for the purposes of the step 6 analysis is a summary which, by its nature, is general. Nevertheless, the summary “must provide an accused with a meaningful basis on which to challenge whether the author of the ITO made full and frank disclosure of the Debot factors relating to the CI”: Reid at para. 89. As well, the summary must provide a description of the nature of the redacted evidence “sufficient to allow the accused to mount a challenge to the redacted material by argument or evidence”: Reid at para. 90.

[11] My approach to the sufficiency of the summary was two-fold. I first considered each of the redactions in light of the issues raised by counsel during argument and in light of my review of the redacted information. Second, I examined the overall impact of the redactions. My goal was to consider whether alone or in combination the summary of the redactions enabled the defence to challenge through argument or evidence whether the Debot (and Araujo) requirements were met in this case.

[12] The applicants raised a number of questions in their factum regarding the redactions and the impact of the redactions upon their ability to address the compelling or reliable nature of the information provided by the CI. Although the applicants’ factum was prepared prior to the proposed judicial summary being received, it provides me with a convenient template to consider the adequacy of that summary in relation to each of the identified issues.

(i) The track record of the CI

[13] The combination of the unredacted portions of the ITO and proposed judicial summary discloses that the CI “has provided information in the past” to an unidentified police service and “has been registered as a source” with an unidentified police service. In addition, the redacted ITO addresses the number of previous matters in respect of which the CI has provided information (without disclosing the number of such matters) and provides information about two matters where “as a result of information provided by the confidential source…the following investigation(s) took place”. The “as redacted” ITO informs the reader that “as a result of the information provided” in both cases one or more unidentified individuals were arrested. The summary indicates that the redactions have removed references to the police force involved, the specific charges relating to the arrested party, the relevant dates and generally details concerning the criminal activities alleged.

[14] The combination of the redacted ITO and the summary provided the defence with an opportunity to make arguments regarding the importance of “track record” of a CI as a factor to be included in the assessment of the credibility and reliability of a CI. There is of course no cut and dry rule that a CI must have a track record – credibility and reliability are factors assessed based on all of the circumstances and not merely from a review of this or that strand of evidence viewed in isolation. The ITO in combination with the summary enabled arguments to be directed to the potential importance of considering the number of instances where information has been provided by the CI relative to the two instances where a concrete result obtained as a result of the information provided as well as to the presence – or absence – of information relative to the qualitative nature of the information provided. I am satisfied that the redacted ITO, as amplified by the proposed judicial summary, enables the relevant Debot questions in relation to the track record of the CI to be raised and examined in reasonable depth and to relate those questions to the central issue of the credibility and reliability of the CI. The unredacted ITO provides the reviewing judge with the means to consider and answer the questions raised. While the duration of the relationship between the CI as a registered source and police was not specified, questions in relation to this and similar issues can readily be raised on a hypothetical basis and submitted to the reviewing justice.

(ii) Motivation of CI and prior record if any

[15] The propensity of disclosure regarding the criminal record, if any, of a CI to facilitate the identification of a CI down is plain and obvious in many cases including this one. This ITO contains in Appendix E a section devoted to this very subject even if its entire content has been redacted. The redacted information in paragraph 2 of Appendix D to the ITO clearly discloses that information regarding the CI’s motivation for providing information was provided to the issuing justice as was the subject of what would occur if the information was used in a successful investigation. The same paragraph also advised that no consideration had yet been given to the CI and that the CI was made aware that no consideration would be given “unless illegal items were seized and/or arrests made as a result” of the information provided. This information in combination is plainly sufficient to enable the applicants to make detailed argument regarding the questions that need to be addressed in relation to this area and the impact of the answers to them on the credibility and reliability of the CI. The subject and areas for inquiry are adequately raised to enable the defence to mount a challenge in this area while the reviewing judge has access to the data actually provided to assess the conformity of the ITO to the required standards. Once again, the missing information as to the possible existence of criminal antecedents or the nature of any prior charges or convictions and the potential impact of these matters on credibility is a question that can readily be raised on a hypothetical basis and just as readily be considered and compared to the unredacted ITO by the reviewing justice.

(iii) Identification of Mr. Abdirahman

[16] Paragraph 5 of Appendix D to the redacted ITO contains no redactions to the sentence that attributes to the CI information that Mr. Adbirahman was known to him or her, that he was a Somalian male approximately 5’8” in height with short braids or cornrows. The redactions effected to the relevant portion of this paragraph excised “additional identification” in relation to Mr. Abdirahman. The redacted paragraph 5 of Appendix D attributes to the CI significant additional information regarding the identification of Mr. Abdirahman: he lives in the subject condominium unit, is a dealer in cocaine and fentanyl and was then in possession of one or more semi-automatic handguns (the redactions preclude any conclusions regarding the number of handgun(s) or other distinguishing features of it or them). While the redactions remove granular details about these subject-matters, the information provided clearly stakes out the claim that the CI was in possession of significant information regarding Mr. Abdirahman. In combination with the summary of the redactions made from paragraph 5, this information clearly provides sufficient information to enable the defence to challenge or raise questions regarding the credibility or reliability of the information provided by the CI.

(iv) Relationship of Mr. Abdirahman to the subject condominium

[17] The redacted ITO attributes to the CI information that Mr. Abdirahman “lives in a condominium at” McMahon Drive, identifying the building address and unit number very precisely. It also states that Mr. Abdirahman “has lived there” with the remaining details redacted and summarized in the proposed judicial summary as “two details in relation to Jabril Abdirahman and the noted address”. The connection of Mr. Abdirahman to the subject condominium unit is obviously an issue of central importance – the ITO reveals that Mr. Abdirahman was not listed as the registered owner or tenant of the unit in the building records nor was he listed as the owner of the Mercedes automobile found parked in the parking space allocated to that unit. The substance of the information conveyed by the CI – that Mr. Abdirahman lived in the unit at the time – was clearly conveyed. The ability to raise questions regarding the credibility and reliability of that information was clearly present, as was the presence of potentially contradictory information elsewhere in the ITO suggesting that Mr. Abdirahman was neither owner nor tenant of the unit. Obviously having a CI testify and be cross-examined would provide a better foundation to challenge the credibility and reliability of a CI and information provided by him or her. That is not the test. In my view the redacted ITO and the summary provide the defence with an adequate basis to challenge the sufficiency of the information in the ITO in relation to this central question.

(v) Nexus between firearm(s) and the subject condominium

[18] The applicants’ factum asserts that the ITO as redacted reveals “no nexus between a firearm and [the subject condominium unit]” nor any nexus between Mr. Abdirahman and the residence. That assertion plainly goes too far. The information provided in Appendix D (as redacted) attributed to the confidential source plainly states that Mr. Abdirahman lived in the subject unit and was “presently in possession” of one or more semi-automatic handgun(s). The proposed judicial summary of the redactions indicates that the information was provided to the police handler by the CI in “the Spring of 2020” and that the CI provided information about the condominium unit including how the CI came to have the information and “the precise day and month in the Spring of 2020 when the information was acquired” thereby supplying a reasonably concise time window within which to consider the currency and utility of the information. Given an ITO dated May 25, 2020, the time window of “Spring 2020” amounts to just over two months in length which provides a reasonable, if intentionally non-precise (for identification reasons), indicator of the currency of the information in question. In combination, this level of disclosure gave the defence sufficient information to raise specific issues that might tend to challenge the credibility and reliability of the information provided by the CI in relation to the subject of the nexus between Mr. Abdirahman, the firearm(s) and the condominium unit.

(vi) Nexus between firearm(s) and the subject Mercedes automobile

[19] The applicants suggested that the redactions precluded them from examining whether the CI provided information establishing a nexus between the Mercedes automobile (that the ITO also sought authority to search) and Mr. Abdirahman or any firearms. The proposed judicial summary is silent on this issue. The Crown confirmed on the record that the redacted information obtained from the CI makes no mention whatsoever of an automobile.

(vii) Overall result of redactions

[20] In the foregoing section, I considered the various areas where the applicants suggested that the redactions read in combination with the proposed judicial summary left them with insufficient information to challenge or present evidence to challenge the ITO on an issue-by-issue and paragraph-by-paragraph basis. As a reality check, I also re-read the “as redacted” ITO together with the summary to consider whether the overall result is a fair one in the sense of providing the defence with the means to review and challenge the sufficiency of the ITO. As noted earlier, that review must necessarily be undertaken with an eye quite firmly fixed on the nature of the examination at this stage in the trial process. The overall question being examined is whether the information provided to the issuing justice could have justified the issuance of the warrant. The truth of the facts alleged in the charges laid in consequence of the search is a matter for the trial to determine.

[21] I am satisfied that the summary provides sufficient and specific indications of the areas of potential interest to the defence for the purpose of a challenge and provides enough information to enable the relevant questions to be raised – even if only on a hypothetical basis in some cases. What is required in the Step 6 analysis is an informed balancing of interests recognizing that neither the right of the defence to disclosure nor the CI privilege is absolute. In my view, the proposed judicial summary offers a fair and reasonable picture to the defence of the redacted material sufficient to enable a detailed review and challenge process. That is, in fact, what has occurred and is continuing to occur as the remainder of this application is presented to me.

Disposition

[22] In the result, I have concluded that the Crown shall be permitted to amplify the redacted ITO with the proposed judicial summary which is approved pursuant to “Step 6” of the Garofoli process. I have found the proposed summary sufficiently alerts the defence to the nature of the redacted information to permit the warrant to be challenged by argument or by evidence. The Crown is therefore authorized to request me as reviewing judge to consider the redacted material for the purposes of this application and the proposed judicial summary is approved.

[23] To the extent necessary, the parties are reminded that this is an interim ruling regarding the Step 6 issue only. The hearing continues as to the remaining issues raised in the application.

S.F. Dunphy J.

Date: February 7, 2020