COURT FILE NO.: CR-21-30000071

DATE: 20230418

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

AYUUB JAMA

Applicant

John Navarrete, for the Crown

Jennifer Penman, for the Applicant

HEARD: April 4, 2023

B.A. Allen J.

REASONS FOR DECISION

(On a Garofoli Application under section 8 of the Charter of Rights and an Application

under section 24(2) of the Charter of Rights)

BRIEF FACTUAL BACKGROUND

[1] On July 8, 2020, Ayuub Jama was charged with the following offences: possession of a restricted or prohibited firearm knowingly not holding a license and registration certificate; possession of a prohibited firearm with a barrel less than 105 mm while knowingly not being the holder of a license; careless storage of a firearm; careless storage of ammunition; possession of a firearm knowing that such firearm was obtained by the commission of an offence; possession of a loaded prohibited firearm; possession of a firearm knowing the serial numbers had been removed; and failure to comply with a recognizance.

[2] The charges arise from the execution of search warrants issued on July 7, 2020 by a justice of the peace of the Ontario Court of Justice. The police were authorized to search a residence in Unit 709 in an apartment building at 3533 Derry Road East, Mississauga, Ontario and a silver 2006 Nissan with the license plate CMJT 984 ("the Nissan"). During the search, the police recovered a firearm and ammunition in a drawer inside one of the bedrooms at the residence. Police also found a quantity of currency in the residence. The Applicant was arrested near the residence.

[3] A potential standing issue concerning the Applicant’s residence arises in this case. The Crown’s position on this application is that 3533 Derry Road East, Unit 709 was the Applicant’s residential address at the time the search warrant was executed. A different address, 2067 Islington Ave., Apt 314, came up in the police’s investigation of the Applicant.

[4] The Applicant takes the position that he has standing to bring this application. He adopts the 3533 Derry Road East, Unit 709 address to challenge the warrant for the purposes of this application as he is entitled to do at law. The Supreme Court of Canada has held that an accused mounting a s. 8 challenge may ask the court to assume as true any facts the Crown alleges or will allege in the prosecution without adducing evidence probative of those facts in the application. I accede to the Applicant’s request: [R. v. Jones, 2017 SCC 60, at para. 60, (S.C.C.)].

THE APPLICATIONS

Brief Overview

[5] The overarching issue in search warrant cases is whether the Information to Obtain ("the ITO") prepared by the police contained sufficient grounds for the issuance of the search warrants. The Crown brings a Garofoli Step 6 application for a determination on the sufficiency and hence the validity of the search warrants on the Applicant's residence and vehicle. The Applicant brings an application challenging the police execution of the warrant as a violation of his s. 8 Charter right to be secure from unreasonable search and seizure. The Applicant seeks an order that the seized items be excluded under s. 24(2) of the Charter.

[6] The Applicant takes the position that the police failed to make full, frank and fair disclosure in the ITO which he contends renders the search warrants invalid. He further submits that the ITO fails contrary to s. 487(1) of the Criminal Code to establish the requisite reasonable and probable grounds to believe that a crime was committed or was being committed at the residence and that the evidence sought would be located there at the time of the search.

[7] It is the Applicant’s burden on a balance of probabilities to prove the police lacked reasonable and probable grounds. A warrant is presumptively valid. The party challenging the validity of a warrant bears the onus of demonstrating it was not validly issued: [R. v. Crevier, 2015 ONCA 619, at para. 66, (Ont. C.A.)].

THE LAW

Statutory Preconditions for Grant of a Search Warrant

[8] Section 487(1) of the Criminal Code provides the statutory preconditions for obtaining a search warrant. To obtain the court’s authorization for a warrant to search the property of a person suspected of committing a criminal offence, the police must satisfy the issuing court that there are reasonable and probable grounds to believe an offence has been committed or is being committed at the property.

[9] The Supreme Court of Canada further clarified that the issuing court must consider whether the police demonstrated reasonable and probable grounds to believe: (a) that an offence was being committed, had been committed, or would be committed, and (b) that evidence of the offence would be found at the specified time and place: [R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 42, (S.C.C.)]. The information to obtain must provide reasonable and probable grounds both that a crime has been committed and that evidence of the crime will be located at the proposed search address: [Hunter and Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 168, (S.C.C.)].

[10] A voir dire is conducted to determine the admissibility of the evidence seized under the warrant which involves a review of the warrant to determine whether the evidence proposed by the Crown for admission satisfies the preconditions set out under s. 487(1).

The Information to Obtain

[11] Under s. 487(1) of the Criminal Code, the affiant on the warrant affidavit, DC Ryan Dance, prepared the ITO warrant to search 3533 Derry Road East, Unit 709 and the Nissan. DC Dance believed that the Applicant was in possession of a firearm and that evidence of possession of a firearm would be found in those locations based on tips from two confidential sources and the investigations that were conducted. On July 7, 2020, the Applicant is observed leaving the building at 3533 Derry Road East carrying a black box and getting into the Nissan, and driving away.

Confidential Informants

[12] As noted, the police acted on information provided by two confidential informants or sources ("CS #1 and CS #2"). The strict rules that govern police use of information provided by confidential sources to support an application for a search warrant are well-known. A special privilege is extended to a confidential informant. Informants are critical to many police investigations as they put themselves in possible jeopardy if information is disclosed that could identify them. The police, the Crown and the court have a positive obligation to secure the identity of a confidential informant: [R. v. Leipert, 1997 367, [1997] 1 S.C.R. 281 (S.C.C.)].

[13] Information in an information to obtain capable of potentially identifying the informant is redacted to protect the privilege. This raises a tension around the defence's ability to resist a warrant when information that might be material to the challenge could be shrouded by redactions which could impact the defence's right to full answer and defence. The implication here is that some of the precise and detailed information that could identify the informant is unavailable to the defence to challenge the warrant.

[14] While informer privilege is paramount, sufficient information must be accessible in the information to obtain for the issuing court to assess the credibility and reliability of the informant and the information provided: [R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, at pp. 215-216, (S.C.C.)]. This creates a situation where the defence's ability to test the reliability and credibility of the informant and their information and to test whether the information is compelling and corroborated can be restricted by protecting the informant.

General Framework of the Admissibility Voir Dire

[15] An inquiry is held to consider the evidence the Crown seeks to adduce of things found and seized during the search of a person, place, or thing. Items found and seized during a search that are relevant and material are prima facieadmissible. This remains true whether police conduct during the search that yielded the evidence was lawful or unlawful: [R. v. Sadikov, 2014 ONCA 72, at para. 34, (Ont. C.A.)].

[16] The general framework comprises a two-stage admissibility inquiry where the accused (the applicant) may apply at the first stage for a determination on whether contrary to s. 8 of the Charter their right to be secure from unreasonable search and seizure has been violated; and if so, at the second stage, for a decision on whether the violation is such that the applicant is entitled to an order under s. 24(2) of the Charter excluding the seized items. At each stage, the applicant has the burden of proof on a balance of probabilities. The first stage is an inquiry into whether constitutional rights were violated by the state conduct: [R. v. Sadikov, at para. 35].

THE GAROFOLI STEP 6 PROCEDURE

The Crown's Application

[17] Where the validity of the warrant is at issue, the Crown may bring an application seeking a determination by the trial court that the warrant is sufficient to meet the statutory preconditions, The Supreme Court of Canada and the Ontario Court of Appeal have established a procedural framework by which the trial court can review the sufficiency and validity of the warrant.

[18] R. v. Garofoli sets down a six-step procedure for considering the validity of a wiretap: [R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 (S.C.C.)]. R. v. Rocha held that the six-step procedure can be adapted to assessing the validity of a search warrant: [R. v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991 (Ont. C.A.)]. At Step 6, if the Crown concedes the warrant cannot be supported solely based on the information as redacted, the Crown may apply to have the reviewing judge consider the unredacted ITO.

Application for Leave to Cross-Examine the Affiant

[19] The validity of an information to obtain can be challenged both facially and sub-facially. A facial challenge requires the reviewing judge to examine the information to obtain and determine whether, on the face of the information disclosed, the justice could have issued the warrant: [R. v. Araujo, [2000] 2 S.C.C. 992, at para. 91, (S.C.C.)]. A sub-facial challenge looks behind the warrant to challenge the credibility and reliability of its contents. A tool available to the defence to attack the warrant sub-facially is cross-examination of the affiant officer.

[20] The applicant may apply to cross-examine the affiant on the warrant. However, cross-examination of the affiant is not provided as of right. A test must be satisfied. To obtain leave, an applicant must show that the proposed cross-examination will elicit testimony tending to discredit the existence of one or more of the statutory preconditions under s. 487(1).

[21] The focus of a search warrant challenge is narrow. So, the window for cross-examination will generally be narrow as well. Cross-examination is denied or limited to avoid unnecessary proceedings that are not likely to assist the reviewing judge in deciding whether there is a basis upon which the search authority could be granted. The threshold for leave to cross-examine requires an applicant to show a reasonable likelihood that cross-examination of the affiant will elicit testimony of value to deciding whether there is a basis upon which the authorizing judge or justice could have granted the order.

[22] The applicant need not show that the proposed cross-examination will be successful in discrediting the conditions precedent for the authorization. There need only be a showing that there is a reasonable likelihood that the proposed cross-examination will assist the reviewing judge to determine a material issue: [R. v. Pires; R. v Lising, 2005 SCC 66, at para. 65, (S.C.C.)].

[23] The Applicant indicated that he would reserve on whether to seek leave to cross-examine the affiant until after I have reviewed the unredacted and redacted ITOs and the contents of the final Judicial Summary are known.

The Use of Summaries of Redacted Areas

[24] At Step 6, the Crown may seek to provide a summary of the redacted areas for the reviewing court's consideration in conjunction with the unredacted information to obtain – a summary the Crown believes will enlarge the information available to the defence without compromising informant confidentiality. R. v. Garofoliadvances this oft-quoted proposition, that the court should consider the unredacted information to obtain “only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence”. This involves the reviewing court considering whether the Crown’s summary assists with this objective.

[25] The court may accede to the Crown's request to review the redacted information to obtain and the Crown summary together with the fully unredacted information to obtain. The court can accept the Crown summary as sufficient or raise inquiries and recommend amendments to its contents. This can involve removing redactions or expanding on the information in the summary. If the court finds it appropriate it may refer the Crown summary to be further edited.

[26] The reviewing court must be mindful of the precariousness of deciding what to disclose taking care not to reveal information that could identify the informant or narrow the pool of whom the informant might be. As the Ontario Court of Appeal cautions: “Even the slightest piece of information about the informer gleaned from the police files could serve to eliminate some members of the pool or identify the informer”: [R. v. Omar,[2007] CarswellOnt 218, at p. 255, (Ont. C.A.)].

[27] It is the function of Step 6 to offer a compromise between two conflicting interests - having all redactions remain intact, which in many cases would prevent a fair challenge to the warrant, and removing all redactions, which would jeopardize informant confidentiality.

[28] R. v. Crevier discusses the practical meaning of an accused being provided sufficient awareness of the nature of the excised material to challenge it in argument or by evidence.

This means the summary must provide the accused with 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, as required by Debot. The context, however, will always be one where the summary will never be a complete substitute for full disclosure, given the need to protect informer privilege.

[29] R. v. Crevier goes on to specify the importance of a judicial summary in ensuring the right to full answer and defence:

• The judge should keep in mind that the right of full answer and defence includes the right to know the basis on which the search warrant was granted, as this is needed to challenge the admissibility of the seized evidence

• The judicial summary should provide the accused with sufficient information to evaluate whether the preconditions for issuing the warrant were met.

• This would naturally include information that speaks to the three Debotfactors: whether the information was compelling and corroborated, and whether the informer was credible.

• To the extent that the summary makes the accused sufficiently aware of the nature of only some of the redacted information to be able to challenge it in argument or by evidence, the judge should, when assessing the validity of the warrant, disregard those redacted portions the nature of which could not be summarized and provided to the accused.

• The judge will consider the extent to which the accused’s inability to directly challenge the redacted portions should affect the weight to be given to those portions.

• In assessing the weight to be given to the redacted information, the reviewing judge should consider the nature of the information, the extent to which the judicial summary allowed the accused to challenge it, and whether its nature is such that it was susceptible to being challenged by cross-examination or otherwise.

• The trial judge will, when determining the weight to be given to the redacted information in deciding whether the warrant could have issued, take into account that the accused could not see it and directly challenge it.

[R. v. Crevier, at paras. 83, 84, 88, and 90]

THE ITO BEFORE THIS COURT

[30] As pointed out earlier, the ITO is heavily redacted. I have provided below some relevant portions of the ITO. I have used square brackets to indicate areas of redaction. However, because of the space that would be required for the brackets to capture the extent of redactions, many of the bracketed areas are much less extensive than the redactions that appear on the ITO.

CONFIDENTIAL SOURCE # 1

Reliability of the Confidential Source(s)

73. The confidential source has not provided information to the Toronto Police in the past.

Motivation and Caution

74. The confidential source was cautioned that they must not knowingly provide false information and that in doing so may constitute an offence, and where a confidential source is seeking some kind of benefit, that no benefit will occur if the information given is not reliable.

75. The confidential source's [ ]. The confidential source [ ].

Summary: The redacted portions from these two sentences identify the motivation behind the Source providing information.

Confidential Source's Current Charges

76. [ ].

Summary: The information redacted from this paragraph discloses information regarding any criminal record and/or any current criminal charges.

Track Record of Reliability from Previous Information Provided

77. The confidential source has never acted as a confidential source. The confidential source is now in the process of becoming a registered confidential source with the Toronto Police Service.

The Information Provided to the Confidential Source (CS#1) and the Corroboration by the Police

78. On [ ] 2020 [ ] provided me with the following information that was given by the confidential source:

Summary: The first redaction from the opening sentence identifies a specific date in 2020. The second redaction identifies the name and rank of the police officer who provided the information. Footnote 17 identifies the full name and badge number of the police officer handler and the police service with which he/she is employed.

a) [The redacted portions from this sentence provide details about the source of the information by CI 1];

b) [The redacted portion from this sentence identifies a time period for which the CI has known the target];

c) [The redacted portion from this sentence provides information about the work and residence of the CI]

d) [The redacted portion from this sentence provides information about one aspect of the target's identity].

e) the CI was shown a photograph of Ayuub Jama and confirmed that the same male lives in 3533 Derry Road #709;

f) On [ ] 2020 the CI advised of the following information:

Summary: The redacted portion from this opening clause identifies a specific date in 2020. That date precedes the date redacted in paragraph 78.

i. the target is known to live at 3533 Derry Road unit 709 [ ]

Summary: The second sentence is redacted. It provides additional information related to the target residing at 3533 Derry Road unit 709.

ii. The target is known to drive different vehicles [ ] the target [ ]

Summary: Portions of the second sentence are redacted. They detail additional features related to the target's driving.

iii the target [ ]

Summary: The redacted portions of this sentence describe an activity conducted by the target on an unspecified date.

Police conducted surveillance on July 7, 2020 and observed Ayuub exit 3533 Derry Road East, in the region of Peel [ ].

Summary: The second and third sentences in bold italic print following paragraph 78(f)(iii) are redacted. They provide additional details regarding the police surveillance described in the first sentence. Those redacted details include similar details that were redacted above in paragraphs 78(f)(ii) and (iii).

g) On [ ] 2020, the CI advised of the following information:

Summary: The redacted portion of this sentence identifies a specific date in 2020. It is the same date that was previously redacted from the opening clause of paragraph 78.

i.[The redacted sentence describes an activity conducted by the target on a particular date and time]

ii. [The redacted sentence describes another activity conducted by the target on a particular date and time.]

h) [a page and a half of redactions]. The information redacted from this paragraph provides additional detail regarding the activities described in paragraphs g(i) and (ii)].

79. This concludes the information that the confidential source provided [ ] Summary: The redacted portion of this sentence identifies the name of the police officer handler, the same name that was redacted from paragraph 78 and footnote 17. The additional redacted portions describe police activities undertaken that verify some of the information contained in paragraph h.]

Compelling Nature of the Information Provided by the Confidential Source

80. The confidential source's information is compelling [ ] it has been corroborated at least in part by police surveillance.

Summary: The redacted portions from the sentence describe a feature of the confidential source's information that was also redacted from paragraph 78(a).

Confirmation

81. provided me with the information regarding confidential source #1.

Summary: The redacted portion identifies the name of the police officer handler; the same name that was redacted from paragraphs 78, 79, and footnote 17.

Concluding Overview in Relation to the Confidential Source:

Positive and Negative Features of the confidential source and his/her information:

82. The confidential source is providing information about Ayuub Jama residing at 3533 Derry Road East in the region of Peel Ontario. The confidential source [ ]. The information is compelling [ ]. Police surveillance has been able to confirm Ayuub Jama being at 3533 Derry Road East, in the Region of Peel.

Summary: The redacted portion from the second sentence repeats some of the motivation factors that were redacted from paragraph 75. The redacted portions from the third sentence repeat the same feature of the confidential source's information that was redacted from paragraphs 78(a) and 80.

Negative

83. This is the first time the confidential source has provided information to the police.

CONFIDENTIAL SOURCE # 2

Reliability of the Confidential Source's

85. The confidential source is a new carded confidential source with the Toronto Police Service.

86. The confidential source has provided information in the past to the Toronto Police Service.

Motivation and Caution

87. The confidential source was cautioned that they must not knowingly provide false information and that in doing so may constitute an offence, and where a confidential source is seeking some kind of benefit, that no benefit will occur if the information given is not reliable.

88. The confidential source [ ].

Summary: The redacted portion of his sentence identifies the motive behind the Source providing information.

Confidential Source's Current Charges/Criminal Record

89. [ ].

90. [ ].

Summary: For paragraphs 89 and 90. The information redacted from these paragraphs disclose information regarding any criminal record and/current criminal charges

Track Record of Reliability from Previous Information Provided

91. The confidential source has provided information in the past that has been proven credible on one occasion [ ] The confidential source. [ ].

a) [ ].

b) [ ].

92. This concludes [ ] were the source provided information.

Summary: For Paragraphs 91 and 92. The information redacted from these paragraphs provides details of two occasions when the source provided credible information to the police. The details provided include the month and year the information was used, the types of investigation used, the types of investigations involved and the results that flowed from the investigation.

The Information Provided by the Confidential Source and Corroboration by the Police

93. On [ ] 2020, the confidential source provided [ ] with the following information.

Summary: The first redaction from the opening sentence identifies a specific date in 2020. The second redaction identifies the name and rank of the police officer who received the information from the source. Footnote 18 identifies the full name and badge number of the police officer handler and the police service with which he is employed

a) A male [ ] in possession of [ ] handgun

Summary: The redacted portions from these two sentences provide details regarding the male's identity, a gun, plus two additional items.

b) He is also a [ ] dealer [ ].

Summary: The redacted portions from this sentence modify "dealer" and describe an activity attributed to the "He".

c) [ ]. [ ]. [ ].

Summary: The redacted portions from the first three sentences identify a time frame and the means by which the source came to know about the information regarding the male. The redacted portions also provide details about an address and an event connected to the male. Sentences four and five (which are wholly redacted) describe police activities undertaken that verify some of the information contained in the first three sentences.

d) [ ]. [ ].

Summary: The redacted portions of these two sentences provide general non-specific information regarding historical activities by the male.

e) [ ] He has a bunch of cars.

Summary: The redacted portions from these three sentences provide additional details regarding the male and cars.

Officers conducted surveillance on July 7, 2020 and observed Ayuub Jama driving a 2006 Nissan automobile with Ontario Licence plates CMJT 984. This vehicle is owned by a company called Kofi's Marketing Team Inc. This company owns 16 passenger vehicles.

f) [ ] gun. [ ] gun. [ ].

Summary: The redacted portions from these two sentences provide details about the male and a gun.

g) [ .] [ ] 709- 3533 Derry Road East, Malton, Ontario]. [ ] [ ].

Summary: The redacted portions from these four sentences provide occupancy details related to the address of 709-3353 Derry Road East Malton, Ontario.

h) [The single sentence is redacted wholly. It articulates a remark attributed to the male.]

i) [The two sentences are redacted wholly. They provide further occupancy details regarding the address in paragraph g above.]

j) Source advised [ ] [ ]709-3533 Derry Road East, Malton. [ ]

Summary: The redacted portions from these two sentences provide further information regarding the male, the address at 709-3533 Derry Road East, Malton Ontario and cars.

k) Source [ ] the source reported [ ] to the handler. [ ] the firearm [ ]

[ ] gun [ ]

Summary: The redacted portions from these four sentences provide details relating to the male and a gun. The details identify a time frame and the means by which the source came to know about the information provided.

Compelling Nature of the Information provided by the Confidential Source

94. The confidential source's information is compelling [ ] has been corroborated at least in part by police surveillance [ ].

Summary: The first redacted portion from this sentence describes the confidential source's information. The second redacted portion identifies an additional means by which some information was corroborated.

Confirmation

95. provided me with the information regarding confidential source #2.

Summary: The redacted portion identifies the name of the police officer handler; the same name that was redacted from paragraph 93, and footnote 18.

Positive and negative features of the confidential source and his/her information

96. The confidential source is providing information [ ] a firearm [ ]

3533 Derry Road East unit 709, in the Region of Peel, Ontario. The confidential source has provided credible information to the police in [ ]. The information is compelling [ ]. Police surveillance [ ] confirm some of the information provided by the source.

Summary: The redacted portions from the first sentence summarize some of the same details that were redacted from paragraphs 93(a), (g), and (k). The redacted portion from the second sentence is the same month and year that was redacted from paragraph 91. The redacted portions from the third sentence describe the same feature of the confidential source's information that was redacted from paragraph 94. The redacted portion from the fourth sentence identifies the same additional means by which some of the information was corroborated that was redacted from paragraph 94.

Negative

97. [ [

Summary: The information redacted from this paragraph is relevant to the issuing Justice's assessment of the source and his/her information.

Appendix "E"

Criminal record of confidential source # 1

[Full page redaction] Summary: The fully redacted page contains either the full contents of the Source's criminal record or a statement that the Source does not have a criminal record.

Criminal record of the confidential source #2

[Full page redaction Summary: The fully redacted page contains either the full contents of the Source's criminal record or a statement that the Source does not have a criminal record.

APPLICATION OF STEP 6 TO THE CASE BEFORE THIS COURT

[31] As discussed earlier, keeping the right to full answer and defence in mind, special attention must be given to circumstances where the defence is faced with a highly redacted information to obtain. As can be seen, the ITO before this court is heavily redacted. The Crown conceded that it could not support the warrant based solely on the ITO as redacted.

[32] Much of the detail of the investigation and most of the personal and other information about the informants and their activities, information that forms the basis of the application for the warrant, have been redacted. The Crown prepared a summary (which going forward, I will call the "Proposed Judicial Summary") of information underlying the redactions. The Crown also provided an Explanation of Redactions to the court that contains brief rationales for the content of each of the summarized areas. The Crown's position is that the redactions are necessary and the summary skeletal because of the belief that if the protected information is disclosed the informants' identities could be at risk.

[33] Again, as R. v. Garofoli stipulates, the process must leave the accused sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. The review court's ultimate decision rests in a finding on whether reasonable and probable grounds exist after the review is completed.

THE DEBOT FACTORS

[34] The Garofoli process is followed in cases where the reasonable grounds justifying the search originate, at least in part, from information provided by a confidential source and where the source's identity must be protected. This being the case, where reliance is placed on the information received from the confidential source, the credibility of that source, and the reliability their information are important and must be assessed. Where a confidential source’s tip is relied on in support of a search warrant, the tip must not only be compelling, it must come from a credible source and be corroborated by police investigation: [R. v. Crevier, at para. 67].

[35] The Supreme Court in R. v. Debot sets down three factors to consider in determining whether the reasonable grounds to believe the standard is satisfied, and whether the information in the information to obtain is sufficiently reliable to support a reasonable belief. Reliability goes to the accuracy and the trustworthiness of the informant and their information to be assessed in the totality of the circumstances. The three factors are:

a) Was the source credible?

b) Was the information predicting the commission of the offence compelling?

c) Did the police do an investigation to corroborate the information before conducting the search?

[R. v. Debot, pp. 215 - 216]

[36] The three factors must be weighed, and in doing so, the factors are not to be treated as separate. It is the “totality of the circumstances” that must meet the standard of reasonableness. Weaknesses in one factor may, to some extent, be compensated by strengths in the other two: [R. v. Debot, at p. 215]. A balance must be struck between the interest in Leipert to protect against disclosure of informant-identifying information and the competing interest in Debot to ensure there is sufficient information to satisfy the credibility, compelling and corroboration factors.

[37] The grant of a search warrant must be based on "credibly-based" probability and not on mere conclusory statements. [Hunter v. Southam, at p. 167]. Where the source of an affiant's knowledge is another person, the source of the information must be revealed and the credibility of the source must be established: [R. v. Araujo, at para. 47 and R. v. Debot, at p. 3, para. 1].

[38] The following principles offer guidance for the assessment of reliability when the source of the information is a confidential informant:

a) The reliability of the information cannot be established from the information itself;

b) The reliability of the information is to be assessed on the totality of the circumstances, including,

i) The degree of detail in the information

ii) The source of the informer's knowledge, and

iii) Indicia of reliability, such as past performance of the informer, or confirmation of his/her information;

c) The evidence must be discovered subsequent and cannot be used to prove ex post facto that the information was reliable; and

d) The tip must be confirmed by independent police investigation.

[R. v. Rocha, at para. 16]

[39] The task of the credibility assessment is to address the trustworthiness of the source of the information in the ITO. This involves considerations such as the informer's motivation, their criminal history and any past history in providing information to the police: [R. v. Greaves-Bissesarsingh, 2014 ONSC (Ont. S.C.J.) and R. v. Crevier, at para. 84].

[40] As observed in R. v. Rocha, the inquiry into the compelling factor is applicable not to the source of the information but rather to the information itself and whether it has characteristics that lead to the conclusion that it is reliable. A tip can be regarded as compelling if it is detailed and based on first-hand observations that are reasonably current. The inquiry involves consideration of whether "the informer's tip contains sufficient detail to ensure it is based on more than mere rumour or gossip" and "whether the informer discloses his or her source or means of knowledge": [R. v. Greaves-Bissesarsingh, at para. 40 and R. v. Rocha, at para. 26].

[41] Not unexpectedly, the police will rarely be able to confirm the tip to the extent of having observed the commission of the offence. It is reasonable that that degree of confirmation is not required. On the other hand, meaningful corroboration requires more than confirmation of neutral or easily discernible facts: [R. v. Rocha, at para 22; R. v. Herta 2018 ONCA 927, at para. 38, (Ont. C.A.); and R. v. Crevier, at para. 84].

Other Governing Principles

[42] The following principles can assist the reviewing judge:

• The review is not a de novo hearing of the ex parte application before the issuing court, nor an opportunity for the reviewing judge to substitute their view for that of the issuing court: [R. v. Garofoli, at p. 1452];

• The role of the review is to determine whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could — not would — have issued. There has to be some evidence that might reasonably be believed on the basis of which the warrant could have issued: [R. v. Morelli, at para. 40; R. v. Araujo, at paras. 19, 44 and 58 and R. v. Garofoli, [1990] 2. S.C.R. 1421, at p. 1452, (S.C.C.)];

• Warrant review requires a contextual analysis. Reference to all the information contained within the four corners of the information in the ITO provides a fair and reasonable context. The review must involve scrutiny of the whole of the document and not a limited focus on an isolated passage or paragraph: [R. v. Garofoli, at p. 1452];

• An authorization may be set aside on the grounds of fraud, material non-disclosure, misleading disclosure or the discovery of new evidence that shows that the actual facts are different from those upon which the authorization was granted: [R. v. Garofoli, at p. 1399].

• Non-disclosure arising from an improper motive or intention to mislead the issuing justice may, standing alone, invalidate the warrant despite the existence of requisite grounds to issue the warrant: [R. v Colbourne, 2001 4711 (ON CA), [2001] OJ No 3620, at para. 40, (Ont. C.A.); R. v Kesselring 2000 2457 (ON CA), [2000] OJ No. 1436 (Ont. C.A.)].

• The review is not an exercise in examining the conduct of police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial: [R. v. Nguyen, 2011 ONCA 465, [2011] O.J. No. 2787, at para. 57, (Ont. C.A.)] and

• The reviewing judge must take into account that authorizing justices may draw reasonable inferences from the evidence in the information to obtain: [R. v. Vu, 2013 SCC 60, at para. 16, (S.C.C.)].

• It is not the review court's role to draw inferences or to prefer one inference over another: [R. v. Sadikov, at para. 88].

• Corroboration of the informant’s tip does not require the police to confirm the very criminality alleged by the tipster: [R. v. MacDonald, 2012 ONCA 244, [2012] O.J. No. 1673, at para. 20, (Ont. C.A.).

OTHER POLICE INVESTIGATIONS

Surveillance

[43] In 2020, before the search, a date disclosed to the issuing justice of the peace, officers from the Toronto Police Service began an investigation into a male believed to be in possession of a firearm. As set out above, this was based on information the police had obtained from confidential sources which included that the Applicant resided at 3533 Derry Road East, Unit 709, Mississauga, Ontario.

[44] DC Dance learned from officers conducting surveillance that on Tuesday, July 7, 2020, DC Sgroi attended 3533 Derry Road East at 1:30 p.m. The Applicant was observed exiting the building at 3533 Derry Road East. He was carrying a black box and walking towards a vehicle parked in the visitor's parking lot. He got into the driver seat of a Silver Nissan with Ontario licence plate CMJT 984. A description of the Applicant was provided.

Police Database Checks

[45] After the surveillance was conducted, DC Dance undertook various police database checks on the Applicant. A CPIC check disclosed that the Applicant was currently before the courts on charges of sexual assault, uttering threats, sexual assault with a weapon, and gang sexual assault. The offence date of those offences was February 21, 2019. The residential address disclosed related to those offences was 2067 Islington Ave., Apt 314. Also disclosed was that the Applicant has a criminal record for failure to comply and possession of property obtained by crime under $5000. There are no firearms offences charged.

[46] From the Applicant's perspective, and I agree, the only relevant information captured in the CPIC check is that the Applicant's address is listed as 2067 Islington Ave., Apt. 214, Toronto. This information could tend to impact the reasonable grounds a firearm would be located at 3533 Derry Road. The sexual and other offences are irrelevant to a determination of whether the police had reasonable and probable grounds to believe a firearm would be located at 3533 Derry Road, Unit 709.

[47] DC Ryan also accessed the Versadex database which also contained detailed information about the Applicant's outstanding charges. Crown disclosure revealed an Occurrence report containing information that on February 24, 2019, a Criminal Code search warrant had been executed by Toronto Police in connection with those charges at the 2067 Islington Avenue address where the Applicant was arrested on those charges. The police were searching for a firearm at 2067 Islington Avenue that was never located. Also from disclosure, it was learned that the Applicant was released on bail to 2067 Islington Ave., Apt. 314. There was no reference in the Peel Region and Toronto Versadex databases to the target address, 3533 Derry Road East, Unit 709, Mississauga.

[48] DC Ryan also searched the Ministry of Transportation ("MTO") and the Canadian Firearm Registry ("CFR") databases. The officer learned that the Applicant had a registered address of 2067 Islington Avenue, Apt 314, Toronto, Ontario, and that the 2006 Silver Nissan with plate CMJT 984 was registered to Kofi's Marketing Team Inc. in London, Ontario. It was also learned that the Applicant does not have a firearm license to purchase or possess firearms in Canada.

CROSS-EXAMINATION OF THE AFFIANT

[49] The Applicant takes the position that the information available on the redacted ITO and the Proposed Judicial Summary is insufficient to meaningfully challenge the validity of the warrant. He requests leave to cross-examine DC Dance to challenge the search warrant to elicit testimony tending to discredit the existence of one or more of the statutory preconditions. Through cross-examination, the Applicant seeks to assist the court with its determination on the validity of the warrant.

[50] The Applicant sought to question the officer about whether there was an investigation of whether there were other tenants at 3533 Derry Road East, Unit 709, and if so, whether there was an investigation into whether there was an association with the Applicant. I refused questioning in that area being persuaded by the Crown that information could expose the identity of CS #2.

[51] The Applicant sought to question why CS #1 was shown a single photo of the Applicant based on the concern with the frailties of identification evidence and the issues that arise when photo arrays are not utilized. I also declined to allow questions about those matters given the particular factual context. Answers to questions on this could reveal protected information.

[52] I found the questions seeking specific information justifying the request for four days for the execution of the warrant and the request for specific information that would provide evidence of the Applicant possessing a firearm would not assist with determining reasonable and probable grounds that a firearm would be located in the target address.

[53] I did allow the Applicant to ask questions about the lack of effort to corroborate the information from the confidential sources. The question about the relevance of the sexual assault charges from February 2019 came up with the Applicant's queries about corroboration of the information in the ITO before this court.

[54] DC Dance acknowledged that in seeking authorization for the search warrants, the police relied almost entirely on the information from the confidential sources. He conceded there was only limited surveillance and initial investigation. He agreed he was aware of the importance of the police providing information to support the Debot factors, that the police are required to provide independent corroboration for the sources' information.

[55] DC Dance acknowledged that he was aware that not only was criminality to be established but that also to be established was evidence of the crime being investigated, that a firearm, would be located at the target address. He further acknowledged that the police database turned up the 2067 Islington Ave. address as connected to the Applicant in 2019, not 3533 Derry Road East. DC Dance conceded that on the face of the redacted ITO, there was no corroboration that there would be evidence of the offence at the target address.

[56] DC Dance acknowledged that the investigation related to the February 2019 sexual assault offences involved the Applicant’s girlfriend alleging a threat with a firearm by the Applicant. The officer indicated he did not know one way or the other whether he had seen the information to obtain from that investigation. The Applicant's counsel showed DC Dance the February 2019 information to obtain. That did not assist with the officer's memory, but he agreed with the suggestion that no firearm was found in the 2019 investigation despite the threat allegation.

[57] DC Dance conceded that the February 2019 investigation does not corroborate the likelihood that the Applicant would have a firearm in his possession at 3533 Derry Road East, Unit 709. He acknowledged that nothing in the investigation connected the Applicant to the target address or indicated that he would have a firearm at his residence.

[58] DC Dance agreed there was an approximately one-minute long surveillance by the police where they observed the Applicant leave the building at 3533 Derry Road East without knowing where the Applicant had come from in the building. He agreed that all the police saw was the Applicant carrying a black box, getting into the Nissan in the visitors' parking lot, driving away, and that the Applicant did not return to the target address. He agreed that the police did not follow him or check whether he was going to another residence.

[59] I find the cross-examination of DC Dance provided important information for the court’s consideration.

THE REVIEW PROCEDURE IN THE CASE BEFORE THIS COURT

[60] As noted, the Crown's position is that the ITO and Proposed Judicial Summary allow the Applicant sufficient awareness of the nature of the excised material to challenge it in argument or by evidence. Again, this is an ITO where there is almost exclusive reliance on the information from the two confidential sources.

[61] The Applicant submits that given the dearth of unredacted information, he has not been provided with sufficient information to achieve the task of discovering whether the statutory preconditions for issuing the warrant were met.

[62] Outside the courtroom, I conducted a review of the redacted ITO and the unredacted ITO, together with the Proposed Judicial Summary and Explanation for Redactions. My task was to assess whether further information could safely be unredacted, whether any further editing or amplification of the information in the redacted ITO could be undertaken, and whether the summaries of the redacted areas might be better summarized.

[63] I reviewed the areas protected by the redactions together with the Proposed Judicial Summary and found the redacted information to be rather detailed regarding both CS #1 and CS #2, particularly CS #2. Except for a few areas, I found the nature of the details to be capable of disclosing information about the sources' identities and activities.

[64] I identified seven areas of the redacted ITO related to CS #1 that I thought could be expanded upon in the final Judicial Summary and three areas related to CS #2 that the same applied. My approach to addressing my review was to return to the courtroom and address my conclusions in the presence of both parties. I advised the parties that the Crown and I could use somewhat cryptic language to discuss the redacted areas at issue. I indicated that the Crown and I could communicate by passing notes if cryptic communication was not adequate. That was the approach that was used. The Crown consulted with the affiant outside the courtroom about the redacted areas I identified.

[65] At the end of the discussion in the courtroom, I was persuaded that most of the edits I suggested would possibly jeopardize the confidential sources. I was persuaded regarding CS #1 that Paragraph 76 could be unredacted disclosing that CS #1 "does not have a criminal record and is not before the court on any criminal charges". Also unredacted was Paragraph 78(d) which states that CS #1 "advised that the target was not known by name".

[66] Regarding CS #2, in Paragraph 91, the words after the first redaction "Toronto Police Service" were unredacted.

[67] The Applicant raised an issue about various paragraphs, particularly paragraphs 44 to 54, in the redacted ITO, that contain DC Dance's opinions based on his experience about the illegal possession of firearms and persons known to possess firearms. There are also paragraphs 8 -19 where he offers opinions on cellphones and other electronic devices and documents often found in target residences and their connection to persons who possess illegal firearms. There is also general information about past convictions set out in Paragraph 36.

[68] The Applicant described these areas and other areas of the redacted ITO as boilerplate and irrelevant as adding nothing to resolving the issue before this court. As well, the information about past convictions the Applicant describes as irrelevant to establishing his possession of a firearm.

[69] I agreed with the Applicant's submissions, and DC Dance conceded, that there is no evidence that the Applicant was in the habit of, or based on the information available to him, ever possessed a firearm.

[70] I exclude the information in those paragraphs in my determination as not assisting with establishing the statutory preconditions. I also disregard the contents in paragraphs 8 - 19 and 36 as being irrelevant to my determination. As well, as DC Dance conceded, and I find, the fact the police searched for a firearm at 2067 Islington Ave. on February 24, 2019, and in fact did not locate one, does not support the view that the Applicant would be in possession of a firearm when the warrant was executed at 3533 Derry Ave. East, Unit 709 on July 7, 2020.

THE PARTIES' FINAL ARGUMENTS

The Crown

[71] The Crown centres its argument on the pivotal issue of whether there is at least some evidence that might reasonably be believed on the basis of which the search warrant could have issued: [R. v. Morelli, at para. 40; R. v. Araujo, at paras. 19, 44 and 58 and R. v. Garofoli, at p. 1452, (S.C.C.)]. It is the Crown's view that the unredacted ITO together with the final Judicial Summary allow the Applicant to be sufficiently aware of the excised information to challenge it in argument or by evidence.

[72] The Crown used as the foundation of its argument the factors set out in R. v. Crevier: [R. v. Crevier, at para. 84]. Crevier provides that the reviewing judge, in assessing the Crown's judicial summary, should consider whether the summary ought to indicate that the redacted material includes the factors in the non-exhaustive list that the court identifies. These factors, Crevier states, should be considered to the extent they are relevant and will not risk disclosing the identity of the confidential informer.

[73] Looking at some of the Crevier factors, the Crown makes the following submissions concerning the sufficiency of the content of the redacted and unredacted ITOs and the Judicial Summary:

• Whether the sources' information is hearsay or first-hand information: the Crown concedes that the ITO does not clearly set down whether the information is first-hand or second or third-hand hearsay.

• The source's relationship with/to the accused and how they came into contact: this information was disclosed to the issuing justice;**the final Judicial Summary indicates CS #1 does not know the accused's name.

• The length of time the source has known the accused and the frequency of their contact: this information was disclosed to the issuing justice.

• Whether the source has previously supplied information to the police: the unredacted information indicates that CS #1 is a first-time source; and that CS #2 is a new carded source with the TPS and has provided information in the past that has been credible on one occasion.

• Whether previous information if any has led to arrests, seizures, or convictions: the Judicial Summary indicates that CS #2 provided details such as the month and year the information was used, the types of investigations conducted, and the results of the investigations;

• Whether past information provided by the informer has been proven unreliable or false: the Judicial Summary states that past information provided by CS #2 has been proven credible.

• Whether the source has a criminal record and if so whether the unredacted ITO includes details of the convictions or charges or whether a copy of the criminal record was appended; the Judicial Summary indicates this information is not disclosable; but the information was disclosed to the issuing justice; **the final Judicial Summary has unredacted that CS #1 does not have a criminal record or charges before the court;

• Whether the source has convictions for offences of dishonesty or against the administration of justice: the Judicial Summary indicates that the issuing justice would be aware of this.

• The source's motivation for speaking to the police, including whether consideration was sought or arranged: the ITO discloses that the motivation for providing information was disclosed to the issuing judge, and sets out that no consideration was provided at the time the information was given and would not be provided until the results of the investigation are substantiated.

• Whether the source was instructed on the penalties for giving false information: the ITO indicates both sources were informed of the penalties for giving false information.

• Whether the descriptions provided by the source match the accused or the target location: the ITO and Judicial Summary indicate that CS #1 provided information relating to the Applicant residing at 3533 Derry Road, Unit 709; if CS #2 provided information about the target address, that information would have been provided to the issuing justice.

• The degree of detail in the information that the source provided to the police: the Judicial Summary provides details regarding the accused, his criminal activities, and the firearm; and whether the information was first-hand or second-hand hearsay was provided to the issuing justice along with any specific and detailed information.

• The recency or timing of the information that the informer provided to the police: the Judicial Summary indicates that time frame was provided by the source; the Crown limits its submission to the information to say the information was provided in the last six months.

• Any discrepancies between the information of one source and another: there are no discrepancies in information about the target address and firearm.

• Any aspects of the source's information that are contradicted by police investigation or otherwise detract from its credibility: none of the sources' information was contradicted by the police investigation.

• Any errors or inaccuracies that exist in the ITO, and their nature (ie. typographical errors: None were located.

[74] The Crown submits that applying the Crevier factors to the information provided in the redacted and unredacted ITOs and final Judicial Summary, and keeping in mind the information available to the issuing justice, the information is sufficient to satisfy the statutory preconditions: (a) that an offence was being committed, had been committed or would be committed, and (b) that evidence of the offence would be found at the specified time and place: [R. v. Morelli, at para. 42]; as well as sufficient to establish that the Debotfactors are satisfied.

[75] The Crown advances the view that despite the dearth of substantive detail available to the Applicant, in absence of information, the Applicant is at liberty to argue in the alternative. If I understand the Crown’s point, what the Crown suggests is that the accused can make a form of conditional argument based on assumptions about what underlies redacted areas. For instance: "If X, Y, and Z information is contained in the redacted information, then I (the accused) make submissions A, B, and C about that assumed information.

[76] The Crown argues that, given the information in the final redacted ITO, the final Judicial Summary, police corroboration, keeping in mind the information before the issuing justice, the search warrants are valid and could have issued.

The Applicant

[77] The Applicant submits that the police action in entering, searching, and seizing items in the residence and vehicle was a violation of his right under s. 8 of the Charter to be secure from unreasonable search and seizure. On the basis of the violation, the Applicant seeks, under s. 24(2) of the Charter, the exclusion of all evidence seized by the police.

[78] The Applicant raises alternative arguments.

[79] The Applicant’s first argument addresses his inability to fairly challenge the warrant to exercise his right to full answer and defence. The Applicant grounds this position on guidance from R. v. Crevier and asks this court to find the search warrants invalid based on the marked insufficiency of the information accessible to him. The court, in the Applicant's submission, should disregard areas of the redacted ITO, particularly those areas that do not allow him to challenge whether the information contained in it meets the requirements of the statutory preconditions and Debot factors.

[80] The Applicant's alternative argument comes from a different orientation. He posits that the information accessible to him from the confidential sources, Crown disclosure, surveillance, police checks, and cross-examination of the affiant does not rise to the level of satisfying the statutory preconditions. And his further contention is that the information in the final redacted ITO and final Judicial Summary is weak on all three Debot factors - the credibility and compelling factors and especially the corroboration factor.

[81] The Applicant first addresses the Crown's argument that the Applicant can argue in the alternative, the suggestion that the Applicant is free to argue in the alternative regarding redacted areas. The Applicant points out what this would mean in practice in this case.

[82] The Applicant submits that the final redacted ITO is so extensively redacted that even with the final Judicial Summary, the cross-examination of the affiant, and the disclosure there is insufficient accessible information. This, the Applicant points out, would mean the entirety of his argument on the final redacted ITO would have to be made in the alternative. This, he submits, is not in keeping with R. v. Garofoli's caution that there must be sufficient information available to the accused to challenge the ITO by evidence or argument. This brings the Applicant to argue that under those circumstances the accused's right to full answer and defence cannot be protected.

[83] The Applicant submits that it is important to keep in mind that the police investigation in this case relies almost entirely on information from confidential sources so the credibility and reliability of the confidential sources are key. The Applicant contends that the redacted ITO contains little to no accessible information going to this factor that would allow a fair challenge.

[84] For instance, whether CS #2 has a criminal record for crimes of dishonesty is not known to the Applicant. What the sources' motivations are for providing information is unknown as well. There is evidence of one of two situations where CS #2 provided useful information to the police. There is information that this is the first time CS #1 has provided information as a confidential source. The final redacted ITO discloses that CS #1 does not have a criminal record or outstanding charges. The Applicant submits that the information available to him is an inadequate basis upon which to challenge the sources' credibility.

[85] The Applicant points out another barrier to an effective challenge to the warrant. That is, the police investigation did not engage sufficient corroborative efforts and the affiant does not in the accessible information disclose the basis for his belief that the Applicant possessed a firearm that would be at the target address. No disclosed evidence asserts that the firearm would be in the residence. And for this reason, in the Applicant's view, the warrant should not have issued: [R. v. Herdsman, 2012 ONCJ 739, 2012 O.J. No 5598, at paras. 70-73, (Ont. S.C.J.)]

[86] On the corroboration factor, available to the Applicant is only a one-minute surveillance of him carrying a black box out of the target building and database searches that were absent any information that could establish reasonable and probable grounds in relation to 3533 Derry Road East, Unit 709. Information going to satisfy the statutory preconditions, in the Applicant's view, is woefully insufficient to mount a fair attack on the warrant. Generalized assertions that the sources are credible and that the information provided is compelling are not enough: [R. v. Coluccio, [2019] O.J. No. 4044, at para. 73, (Ont. S.C.J.)].

[87] The Applicant cites R. v. Crevier to support the argument that the heavily redacted areas that the Crown contends meet the statutory preconditions and Debot factors should be disregarded by this court. The Applicant refers to paragraphs 87, 89, and 90 in Crevier where the court holds:

87. The reviewing judge exercises a gatekeeping function and must ensure the judicial summary strikes the appropriate balance. To the extent that the summary makes the accused sufficiently aware of the nature of only some of the redacted information so as to be able to challenge it in argument or by evidence, the judge should, when assessing the validity of the warrant, disregard those redacted portions the nature of which could not be summarized and provided to the accused.

88. This context includes the fact that the accused could not directly challenge those portions of the ITO that were redacted and that support the warrant’s issuance. The judge will consider the extent to which the accused’s inability to directly challenge the redacted portions should affect the weight to be given to those portions.

89. To the extent that the accused is not sufficiently equipped to challenge certain redactions, the trial judge must not consider them. For the redacted information, the trial judge does consider, he or she will, when determining the weight to be given to that information in deciding whether the warrant could have issued, take into account that the accused could not see it and directly challenge it. In my view, step six of Garofoli must implicitly include these protections for a proper balance to be achieved.

[88] The Applicant directs the court's attention to the following heavily redacted areas of the final reacted ITO.

[89] Regarding CS #1 the Applicant highlights the following from the redacted ITO:

• the information in Paragraph 75 about motive is redacted and cannot be challenged by the Applicant;

• the accessible information in Paragraphs 78 (g) and (h) refers to undetailed activities;

• the accessible information in Paragraph 79 refers to certain undetailed activities of the police;

• the information in Paragraphs 80 and 82 repeat redacted information from other paragraphs

[90] Regarding CS #2, the Applicant draws the court's attention to the following paragraphs:

• Paragraph 88 is redacted in its substantive part and refers to motivation and provides no details;

• the information in Paragraphs 89 and 90 are completely redacted and are summarized as concerning whether or not there is a criminal record and charges before the court;

• Paragraphs 91 and 92 are almost entirely redacted with no substantive details and are summarized as referring to two occasions when the source provided information to the police and summarized as containing details of the month and year the information was used, the types of investigations and the results;

• Paragraph 93 involves information provided by the confidential source and through police corroboration; the substantive part of this paragraph is redacted; the summary only discloses general information referring to a gun with no details; a male with no details; a time frame and how the source obtained the information with no details; it mentions cars and the target address.

• Paragraph 96 repeats already redacted information and is summarized as referring to information relevant to the justice's assessment of the source and their information.

• Paragraph 97 entitled "Negative" is completely redacted.

[91] The Applicant submits it is clear there is too little substantive information accessible to him to make full answer and defence and thus asks the court to disregard the redacted information and declare the warrant invalid.

[92] On the Applicant's alternative argument, he scrutinizes what he regards as insufficiency in some of the assertions DC Dance makes in the redacted ITO that the officer says go to establishing the validity of the warrants.

• DC Dance does not specifically attest to a belief that an offence has been committed. There is no section in the redacted ITO where he sets out why, based on the entirety of the investigation, he believes an offence has been committed.

• DC Dance relies on a bald assertion that "the confidential source's information is compelling", but gives no basis for this statement and how it assists with the question of reasonable grounds to believe evidence would be found at Unit 709, 3533 Derry Road East.

• DC Dance indicates in one line that he believes an illegally possessed firearm will be located, but he does not tie that to any information contained in the rest of the affidavit.

• The redacted ITO is largely composed of boilerplate, irrelevant information that adds nothing to the question of whether an offence has been committed, or the existence of reasonable grounds to believe evidence would be found at the target address.

• DC Dance indicates he believes the Applicant resides at 3533 Derry Road East, Unit 709 and that a firearm would be found there. However, the surveillance officers saw the Applicant exit the 3533 Derry Road East apartment building on one occasion. And there is no evidence as to where the Applicant might have been in the building. There is no indication that he was ever observed there again. Information was available that the Applicant resided at 2067 Islington Avenue, Apartment 314.

[93] The Applicant contends that the final Judicial Summary is of limited to no assistance in supplementing information covered by the redactions and makes the following further submissions.

[94] Again, the information about CS #1 in the redacted ITO and the final Judicial Summary include little detail as to the source of their information and whether it is based on first-hand observation or rumour, or hearsay.

[95] Regarding CS #2, despite the bald statement by DC Dance, the combined information in both the redacted ITO and final Judicial Summary lacks detail that would suggest the tip is compelling. The documents lack information as to whether a photo line-up with a photo of the Applicant was ever shown to CS #2 to confirm the identity of the person in question.

[96] The Applicant again points out based on the available information that the credibility and reliability of both confidential sources and their information are largely unknown. After the court's review was conducted it is disclosed in the final redacted ITO that CS #1 does not have a criminal record or outstanding charges. However, again, the Applicant points out, whether or not CS #2 has a criminal record or outstanding charges is entirely redacted in the final redacted ITO. There is thus, in the Applicant’s view, no indication whether there are convictions and if so what kind of convictions there may be, including whether there are any crimes of dishonesty or against the administration of justice.

[97] The Applicant requests the court to find that the disclosed information available to him does not satisfy the statutory preconditions and is insufficient to allow him to challenge it in argument or by evidence.

[98] It is the Applicant's view that although the affiant has asserted that the information provided by the confidential sources is credible and compelling and has been corroborated, the Applicant is not in a position to mount fair challenges to those assertions. The substance of the final redacted ITO that, in the Applicant's view, purports to support reasonable and probable grounds and the three Debot factors, is inaccessible to him. This compromises his right to full answer and defence.

[99] In both arguments, the Applicant asks the court to find the search warrants illegal as executed in violation of his s. 8 Charter rights. He accordingly requests that all evidence seized under the searches of the residence and vehicle be excluded.

COURT'S ANALYSIS

[100] I am no doubt faced with a heavily redacted ITO and a final Judicial Summary that does not disclose much of the information covered by the redactions due to the possibility of jeopardizing the confidential informants. It is common in search warrant cases to have ITOs that have information excised. However, what is not so common in my experience is to have ITOs with excisions as extensive as the one before me. I have seen the information in the unredacted ITO and reviewed the information the Crown seeks not to disclose due to confidential source privilege. This of course puts the defence in the unenviable position of not having access to information the Crown and the court have.

[101] In arriving at a determination on the sufficiency of the warrant, the reviewing judges must engage in the rather thorny exercise of keeping the confidential information in mind while at the same time putting themselves in the shoes of an accused who does not have the benefit of potentially relevant information to use in their defence. As Crevier proposes the reviewing court should take into account that the accused could not see the redacted information and directly challenge it: [R. v. Crevier, at para. 90]. This is where the rubber meets the road on the tension between protecting confidential sources and protecting the accused's Charter-secured right to full answer and defence.

[102] There is also the tension between a pronouncement in R. v. Araujo and some stipulations in Crevier on challenging the warrant. What I am referring to here is the caution by Araujo that the focus of the review, based on the information before the issuing judge, is whether the warrant could have issued: [R. v. Araujo, at para. 54]; while Crevier provides that redacted information (that was before the issuing judge) that does not permit a fair challenge by the defence should be disregarded: [R. v. Crevier, at para. 87].

[103] Crevier seems to expand on the Garofoli principle that the court should consider the unredacted information to obtain “only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.” This suggests disregarding the unredacted material if it does not offer an opportunity for the accused to fairly challenge it.

[104] This tension is at the heart of the differences between the Crown and the Applicant's positions. The Crown rests on the fact that the redacted information was before the issuing judge. The Applicant's argument, on the other hand, is that fairness to the defence requires that the accused be able to challenge the information related to the statutory preconditions and Debot criteria, and if not, the information should be disregarded.

[105] Starting with the question of the Applicant's ability to mount a fair challenge to the redacted ITO, in the circumstances of this case I do not find helpful the Crown's suggestion that the Applicant is free to argue in the alternative based on assumptions in the face of substantial redaction. I take the Applicant's point that given the extent of the redactions, he would be restricted to solely alternative arguments in his challenge. I do not think that form of argument would be helpful to the determination the court is required to make.

[106] But also important is the stipulation expressed in Crevier and other cases that regard must be had to the accused's ability to directly challenge the sufficiency of the warrant. On this point, I repeat a portion of paragraph 88 in Crevier cited earlier:

88. This context includes the fact that the accused could not directly challenge those portions of the ITO that were redacted and that support the warrant’s issuance. The judge will consider the extent to which the accused’s inability to directly challenge the redacted portions should affect the weight to be given to those portions. [emphasis added]

[107] An argument in the alternative in the nature proposed by the Crown is the opposite of a direct challenge. It is the extent of the alternative argument that would be required in this case that is of concern here, not alternative arguments in general. I take it from Crevier that the more restricted the accused's ability to mount a direct challenge to a redaction the lower the weight that may be attributed to that portion of a redacted ITO.

[108] R. v. Crevier emphasizes that with the use of confidential sources there is a need to ensure the defence can challenge the information with respect to the Debot factors:

In carrying out this review, the judge should keep in mind that the right of full answer and defence includes the right to know the basis on which the search warrant was granted, as this is needed to challenge the admissibility of the seized evidence: see Durette, at para. 41. The judicial summary should, therefore, provide the accused with sufficient information to evaluate whether the preconditions for issuing the warrant were met. Since confidential informers are involved, this would naturally include information that speaks to the three Debot factors: whether the information was compelling and corroborated, and whether the informer was credible.

[109] Without repeating the entirety of the Applicant's arguments on the limits to challenging the warrant, I can say I accept the applicability of the stipulations stated in Crevier.

[110] Critical substantive information that goes to the credibility of the confidential sources is redacted: information that goes to the motivations of both sources; whether or not CS #2 has a criminal record or outstanding charges, and if so, whether there are crimes of dishonesty or against the administration of justice; and whether CS #2 has given false or misleading information to the police in the past. The Applicant does not have a reasonable foundation from which to attack the affiant's view that the confidential sources are credible and reliable.

[111] The most substantial redactions, especially related to CS #2, are to the areas of the final redacted ITO that the Crown submits contain details that support the view that the information is compelling. I find the final Judicial Summary does little to enhance whether the redacted information is compelling or not. There is little basis for the Applicant to challenge the affiant's assertions.

[112] The unredacted ITO contains more detail purported to be compelling than the information related to the credibility and corroboration factors. As set out earlier, following my review of the redacted and unredacted ITOs and Proposed Judicial Summary, I acknowledged, except for the small areas I identified that might be unredacted, that substantial redactions are necessary to avoid compromising the confidential sources.

[113] This left the Applicant in substantially the same position he was in before my review - without access to information to mount a meaningful challenge to the information purporting to satisfy the statutory preconditions and the three Debot factors.

[114] The Applicant was granted leave to cross-examine DC Dance on the corroboration issue. DC Dance as much as conceded that the one-minute surveillance and the police database checks were the extent of the police efforts. He conceded that the police did not know where the Applicant came from in the target apartment building when they saw him leave the building. He conceded they saw him carrying a black box. They did not see him with a firearm and DC Dance also conceded that there was no reason to believe the Applicant had a history with firearms. He further agreed that the police did not follow him or ever see the Applicant again at 3533 Derry Road East.

[115] A critical weakness in establishing the statutory preconditions is the failure of the police to corroborate a link between the Applicant and a firearm and a link between him and 3533 Derry Road, East, Unit 709. The information the police garnered from the database checks, the Occurrence report and bail materials connected the Applicant to a different address, 2067 Islington Ave., Apt. 314.

[116] Corroboration is the weakest factor. As Debot held, the three factors must be considered together in the context of the totality of the evidence. Weakness in one factor can compensate weakness in the other factors. Corroboration of purported compelling details can strengthen their compelling nature. This is not so in this case. There was little or no corroboration of the detailed information that lay behind the abundant redactions.

[117] Regarding the credibility and reliability of the sources and their information, the disclosed information is scant. It appears from what is accessible to the Applicant that there is moderate credibility with respect to CS # 2 in that he is a carded source with the Toronto Police Service and has had some success on one occasion in assisting the police although there is no information available to the Applicant on how the source assisted. The credibility of CS #1 from the disclosed information is weaker given the fact they were new to providing information to the police. There would also seem to be a lack of familiarity with the Applicant in that his name is unknown to CS #1.

[118] Then there is the interplay among the three Debot inquiries. Even looking at the final unredacted ITO, information that appears to be compelling on its face for its detail is only compelling to the extent it has been corroborated. As for the credibility and reliability criteria, an inability or failure to corroborate information provided by a source would tend to adversely affect their credibility and the reliability of the information they have provided.

CONCLUSION

[119] I find on the totality of the evidence and for the reasons I have set out that the search warrants on the residence at 3533 Derry Road East, Unit 709, Mississauga and the Nissan, Ontario Licence plate CMJT 984 are invalid. The police violated the Applicant's right to be secure from unreasonable search and seizure.

WHETHER TO ADMIT EVIDENCE UNDER SECTION 24(2) OF THE CHARTER

[120] Section 24(2) of the Charter allows the court to exclude evidence obtained in breach of Charter rights if the admission of the evidence would bring the administration of justice into disrepute. This requires a balancing of the effect that admitting the evidence would have on society’s confidence in the justice system.

[121] The balancing exercise involves considering three inquiries set out in R. v. Grant: (a) the seriousness of the Charter-infringing state conduct; (b) the impact of the breach on Charter-protected interests of the accused; and (c) society’s interest in the adjudication of the case on its merits.

[122] The seriousness of the breach falls along a spectrum where on one end are violations that are inadvertent or minor in nature and on the other end, violations that demonstrate a reckless and deliberate disregard of Charter rights: [R. v. Grant, 1993 68 (SCC), [1993] 3 S.C.R. 223, at paras. 72 and 74, (S.C.C.)].

Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence.

[R. v. Grant, at para.75]

[123] The first two factors are meant to work "in tandem" as they both pull towards the exclusion of evidence, while the third factor pulls in the opposite direction towards the interest of admitting the evidence: [R v McGuffie, 2016 ONCA 365, at paras. 62 - 63, (Ont. C.A.)]

The First Inquiry

[124] I do not regard police conduct, in this case, as on the most serious end of the seriousness scale. However, the police entering a person's residence without sufficient reasonable and probable grounds constitutes a violation of the Applicant's Charter protection from unreasonable search and seizure in the private sphere of his residence.

[125] Further, the police entered without adequately corroborating the information from the confidential sources. The police's independent investigation provided information that the Applicant was connected to 2067 Islington Avenue, Apt. 314, not the target address. They did not learn about that address until they conducted database searches following the surveillance at 3353 Derry Road East. There is no information that the police investigated the Islington address.

[126] Failure to adequately corroborate information intended to support the statutory preconditions can lead to the unfortunate consequence of the police entering the wrong address. Great care must be taken to establish the proper location for the search. In saying this I do recognize that a person can be associated with more than one residential address.

[127] I do not find this to be a minor infringement. Nor do I find bad faith in the police conduct. A court sitting on a search warrant case where confidential sources are utilized appreciates the precarious work police do in investigations where they are obligated to balance information to justify a warrant while at the same time protecting a source who is helping them with their investigation.

[128] While not evidence of bad faith, I find the police conduct was more in the nature of carelessness and negligence, particularly in drafting an ITO so heavily redacted while not demonstrating the need for further investigation and corroboration of the information. Doing this would have enhanced fairness to the Applicant in advancing a defence and assisted the court in arriving at a more informed determination.

[129] DC Dance was no novice officer. He was an officer with some 18 years of experience with the Toronto Police Service when he became the affiant on the search warrant before this court. He testified that he had been an affiant on search warrants between 50 and 100 times by July 2020. This is an officer who from his experience would appreciate the importance of corroborating information through a more thorough investigation. DC Dance did not provide a reason for the lack of corroboration. But I must say that I appreciate the officer's candour in conceding that the police could have done more to confirm the information they had.

[130] This is the type of conduct I believe the court should dissociate from. The court cannot be seen to condone this.

The Second Inquiry

[131] The second inquiry considers the impact of breaches on the Charter-protected interests of the accused. The Applicant's s. 8 Charter right was significantly violated by the police action.

[132] The police made an unjustified entry into the Applicant's private domain. This goes to the core concern underlying s. 8 protection. A violation of the right to be secure from unreasonable and unjustified searches of one's home by state agents is most frequently far along the spectrum of seriousness. As the court in R. v. Silveira observed: "There is no place on earth where persons can have a greater expectation of privacy than within their 'dwelling-house'":[R. v Silveira, 1995 89 (SCC), [1995] 2 S.C.R. 297, at para. 140, (S.C.C.)]. As R. v. Grant observed the intrusiveness of a home search only ranks behind the search of one's person: [R. v. Grant, at para. 66].

[133] The police conduct on this inquiry is on the more serious end of the spectrum. Police must be assiduous when deciding to enter a person's home and take great care in their investigation and in drafting the warrant to prevent unjustifiable intrusions. The court must also dissociate from this type of police conduct.

The Third Inquiry

[134] The third inquiry becomes important when either the first or the second factor, but not both, push "strongly toward the exclusion of the evidence." However, where both factors favour exclusion, the third factor will "seldom, if ever, tip the balance in favour of admissibility": [R. v. McGuffie, at para. 63].

[135] This inquiry requires the court to consider the seriousness of the offence. The Supreme Court of Canada in R. v. Harrison requires the reviewing court to balance the implications of excluding evidence of an offence against the effect on the administration of justice if the prosecution of a serious crime is not pursued because evidence that could provide conclusive proof is not admitted.

[136] The firearm was recovered as a result of an unjustified search of the Applicant’s residence. That points toward exclusion. On the other hand, admitting the firearms cannot be regarded as operating unfairly in the court’s search for the truth at trial: [R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 81 and 82, S.C.C.)]. The firearm is without question central to the Crown's ability to prosecute this case. Its exclusion will effectively gut the Crown’s capacity to adjudicate a very serious crime, the possession of a loaded firearm with available ammunition inside a home.

[137] The court can take judicial notice of gun crime incidents in the Greater Toronto Area. This is often raised by the prosecution as a factor to be weighed in the balance of the seriousness of the offence. This is a valid concern that should not be discounted. Reports of homicides and threats to the lives of people in urban centres like Toronto in homes, schools, malls, and parks, and on the streets, are all too common. I have taken this into account.

[138] However, in the circumstances of this case, I follow the path of the courts that have time and again weighed serious crimes like firearm and drug offences against serious breaches involving unlawful entries into homes and have found that this type of serious violation of constitutional rights takes primacy in their determinations.

The Balancing

[139] I am required to balance public concern over the type of crime against the serious infringement of the Applicant’s rights. I am required to balance the seriousness of the crime against the implications to the administration of justice if a serious crime is not addressed because evidence that could provide conclusive proof is not admitted.

[140] It is a fact-based balancing of the three lines of inquiry. The exercise is not simply a quantitative evaluation of whether the majority of the factors favours exclusion. There is no special calculus or formula. The question to be considered is what effect on the long-term repute of the administration of justice would result from admitting the evidence: [R. v. Harrison, at para. 36].

[141] The police were seeking to locate a firearm in a residence. There is no question about the seriousness of the crime the police were investigating. The seriousness of the violation, the police making an unjustified entry into the privacy of a person's home, should attract some consternation by the public. Most members of the public can relate to having private spaces they cherish and where they go for safety and security and understand the need for protection from the chilling effect of unchecked and unjustified incursions by police.

[142] In keeping with R. v. McGuffie, when I weigh the seriousness of the crime against the strength of my findings on the other two inquiries that support exclusion, I find on the whole of the evidence that the long-term interest of the administration of justice would not be served by admitting the evidence in this case. As R. v. Morelli put it:

The repute of the administration of justice will be "significantly undermined" where evidence is included at trial which was obtained "from the most private 'place' in the home on the basis of misleading, inaccurate, and incomplete Informations" that formed the foundation of the warrant.

[R. v. Morelli, at para. 109]

DISPOSITION

[143] The application to exclude evidence is granted.

Allen J.

Released: April 18, 2023

COURT FILE NO.: CR-21-30000071

DATE: 20230418

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

AYUUB JAMA

Applicant

REASONS FOR JUDGMENT

(Ruling on a Garofoli application under section 8 and an application and section 24(2) of the Charter of Rights)

Allen J.

Released: April 18, 2023