COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Crevier, 2015 ONCA 619

DATE: 20150916

DOCKET: C57742

Hoy A.C.J.O., Feldman and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jessica Crevier

Appellant

Nathan Gorham and Breana Vandebeek, for the appellant

Susan Magotiaux, for the respondent

Heard: March 19, 2015

On appeal from the conviction entered by Justice Laurence A. Pattillo of the Superior Court of Justice, sitting with a jury, on May 1, 2012, and from the sentence imposed on May 17, 2013, with reasons reported at 2013 ONSC 2630.

Rouleau J.A.:

I.             Overview

[1]          When an accused challenges a search warrant that police obtained using information from confidential informers, tension arises among three important principles or interests: the interest of law enforcement, the common-law principle of informer privilege, and the accused’s constitutionally-protected right to make full answer and defence. This appeal focuses on balancing those interests at the sixth and final step of the information-editing process set out by the Supreme Court of Canada in R. v. Garofoli, [1990] 2 S.C.R. 1421.

[2]          The appellant in this case challenged the validity of the search warrants police executed to search the apartment she was occupying and to seize the cocaine and gun found within it. To obtain these warrants, police used information from two confidential informers. As a result, the materials the appellant received were heavily redacted to protect informer privilege. The Crown conceded that the redacted materials were insufficient to support the warrants, and asked the trial judge to proceed to step six of Garofoli, which would allow the trial judge to rely on the information that had been redacted despite the appellant’s inability to access it.

[3]          The reviewing judge determined that the combination of what the appellant did have access to – the redacted materials and a summary outlining the nature of the information that had been redacted – was enough to allow her to challenge the warrants’ facial validity, such that her right to full answer and defence was not impaired. He proceeded to step six and, in the end, upheld the warrants. The drug and gun evidence was admitted, and the appellant was convicted and sentenced to a global prison term of six years, which included four years for one of the firearm offences and two years consecutive on the cocaine conviction.

[4]          The appellant appeals her conviction and seeks leave to appeal her sentence.

[5]          On the conviction appeal, the appellant argues the trial judge erred in his interpretation of the test under step six. She says the right to full answer and defence includes the right to mount a sub-facial attack, particularly on the truth and reliability of the information about and from the confidential informers, which had been redacted. She also submits the trial judge should not have proceeded to step six in this case, because the summary of the redacted information was vague and did not allow her to challenge the warrants or the claim of confidentiality for one of the informers. Additionally, she argues the trial judge erred in dismissing her application to exclude evidence of her prior drug convictions.

[6]          On her sentence appeal, the appellant submits the trial judge erred by imposing a consecutive sentence for the cocaine conviction while treating the combination of the firearm and drugs as an aggravating factor on the firearm conviction. She says this constituted impermissible double-counting.

[7]          For the reasons that follow, I would dismiss both appeals. I have concluded that the trial judge in fact allowed the appellant to mount a sub-facial challenge as well as a facial challenge and that he did not err in concluding the search warrant was valid. I also see no error in the trial judge’s dismissal of the appellant’s application to exclude evidence of her prior drug convictions or in the sentence he imposed.

[8]          These reasons first address the step six issue in its entirety, it being the focus of this appeal. The background and analysis of the remaining issues is set out afterward.

II.           The step six issue

A.           FACTS

(1)         The search and seizure

[9]          On February 6, 2012, officers from the Gun and Gang Task Force of the Toronto Police Service obtained search warrants for 704-125 Lawton Blvd., a one-bedroom apartment in Toronto that the appellant, Jessica Crevier, occupied. The warrants were issued pursuant to s. 487 of the Criminal Code, R.S.C. 1985, c. C-46, and s. 11 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, based on a single information to obtain (“ITO”) that contained information from two confidential informers, as well as details of police efforts to confirm the information received from the informers.

[10]       After obtaining the warrants, police attended at the 125 Lawton Blvd. apartment building that same evening. They arrested the appellant outside the building, as she drove a van out of its parking lot. She had $1,308.43 in cash on her person and a small amount of marijuana hidden in her bra. Police took the appellant’s keys and used them to enter the apartment. No one was there.

[11]       Police searched the apartment, and found and seized a firearm, drugs, and cash from various areas within it. The apartment contained a bedroom, kitchen, bathroom, and combined living room and dining room. The firearm – a .40 calibre Smith & Wesson semi-automatic handgun containing a 15-round capacity magazine (an over-capacity magazine) with eight bullets – was found in the bedroom, in a night table drawer. The gun was wrapped in a sock and glove. In the same drawer, both on top of and under the gun, police found six pictures of the appellant as well as personal documents belonging to her, dated 2011 and 2012. These documents included provincial offence tickets, a statement of benefits, and notices of impending conviction and driver’s licence suspension.

[12]       Police seized a total of 89.4 grams of powder and crack cocaine from the bedroom and kitchen. The estimated street value of these drugs was about $10,000. Police also found a box under the kitchen sink that contained drug paraphernalia: utensils for cooking powder cocaine into crack, and a pot and beaker with cocaine residue on them. Additionally, they found a total of $4,920 cash in the bedroom.

(2)         The apartment

[13]       Although the lease to 704-125 Lawton Blvd. was not in the appellant’s name, it was apparent she was occupying the apartment. Her photos and personal documents were found throughout the apartment, including on top of and below the wrapped gun in the night table drawer, in the dining room, and on the fridge in the kitchen. On the fridge, there was an autographed picture of a rap artist addressed to “Jen”, which was the appellant’s alias, as well as an appearance notice in her name and pictures of her. The bedroom and hallway closets contained women’s clothing.

[14]       Jetoia Blair was the named tenant on the lease of the apartment and the appellant’s friend. Blair was also one of the defence witnesses. She maintained that, although she made the lease payments, her ex-boyfriend, Kareem Keane-Dawes, provided the money for the lease. Blair testified that Keane-Dawes was involved in drug trafficking and illegal firearms, and that they rented the apartment in part to keep his criminal activity away from her children. She testified to staying in the apartment two to three times per week and said that at other times she stayed in a different apartment with her grandfather, brother, and two children. She said Keane-Dawes stayed at the Lawton Blvd. apartment as he pleased until his incarceration in November 21, 2011, a little more than two months before the search. He remained in custody until he was deported, in 2013.

[15]       Blair testified that she let the appellant stay at the Lawton Blvd. apartment and that the appellant was adamant she would stay only on the couch in the living room, as she did not want to invade Blair’s privacy by using her bedroom. Blair said the appellant would store her belongings in the living room. Blair said that the items in the bedroom were hers, not the appellant’s, and that although the drugs, gun, and money did not belong to her, she was not surprised they were in the apartment given Keane-Dawes’s activities.

(3)         The tips and investigation leading to the warrants

[16]       Detective Constable Daniel Morgan swore the ITO used to obtain the search warrants. He has been a member of the Toronto Police Service since 2006 and had prepared many ITOs before the one at issue. As indicated, the ITO contained information from two confidential informers. Although D.C. Morgan prepared the ITO, he did not speak to either of these informers. The first informer (“CI1”) spoke with Detective Constable Steve Kerr, and the other informer (“CI2”) spoke with Detective Constable Mark Tan. The version of the ITO disclosed to defence counsel was heavily redacted to protect informer privilege. The information from one of the informers suggested the appellant was storing cocaine inside the apartment and possessed a handgun for protection.

(a)         Confidential informer tips

[17]       CI1 is described in the redacted ITO as a “proven Confidential Source” who had been used by the Toronto Police Service in the past and who had “proven to be extremely credible.” The ITO indicates that CI1 is involved in the criminal underworld, has provided “valuable intelligence”, and has given information that has led to arrests as well as seizures of drugs and a firearm. Information provided by CI1 to D.C. Kerr included a description of the appellant’s physical appearance, as well as information that the appellant is known to CI1, is dealing drugs, keeps a loaded handgun, uses the name “Jen”, and possesses crack cocaine in her apartment at 704-125 Lawton Blvd. Subsequent information from CI1, obtained in 2012 (month and day redacted), confirmed the appellant was still at the apartment.

[18]       The information provided by CI2 stems from a meeting with police on the same day as the search. D.C. Tan, who attended the Lawton Blvd. apartment building to gather information, spoke to CI2, who identified two photos of the appellant, confirmed the appellant lived at apartment 704, said he or she believed the appellant was involved in criminal activity, and advised that the appellant used to park a Jeep at the back of the building but had lately been driving a silver van. There is no information about CI2’s reliability or background in the redacted ITO.

(b)         Police investigation

[19]       The redacted ITO also sets out information police learned from their own investigations, all conducted on the day of the search. It states the appellant “is well known to police as a drug dealer and is also known to associate with many violent and dangerous individuals.”

[20]       The ITO affiant detailed the results of his database searches in relation to the appellant. The searches revealed multiple interactions between the appellant and police, including 48 hits on the Unified Search[1] database (some related to the same event). Five occurrences in particular are noted between 2008 and 2012, where police stopped, arrested, or investigated the appellant. In one of these occurrences, on January 5, 2012, the appellant was stopped in a Jeep registered in her name for driving under suspension. She provided an address of 44 Hoover Crescent. On February 27, 2011, the appellant was investigated “in the company of several well know[n] drug dealers, many with a history of firearms” in relation to “a suspicious incident” in which cocaine was seized but no one was charged. One occurrence from 2008, in which the appellant was listed as a witness to an assault, noted that the appellant used the alias “Jen”. Her most recent drug arrest was in 2007, although there were several dating back to 2004. A criminal record search revealed 13 convictions, including four drug-related convictions, two of which were for trafficking. The searches turned up no connection between the appellant and the Lawton Blvd. apartment, and no related reports on file for that apartment either. Two photos of the appellant were found in the database (these were the photos shown to CI2).

[21]       D.C. Tan, in addition to speaking to CI2, went inside the Lawton Blvd. apartment building on the day of the search. He went up to the seventh floor and viewed the door to unit 704, but could not hear any noise within the apartment. He noted the location of the unit in relation to the elevator. He also noted that when looking at the apartment from the outside, only green curtains that were closed could be seen.

[22]       That same day, another officer of the Gun and Gang Task Force conducted a Canadian Firearms Registry Online search of both the appellant and the 704-125 Lawton Blvd. apartment. The search revealed no firearms were registered to either.

B.           PROCEEDINGS BELOW

(1)         The s. 8 application

[23]       At the start of the trial on March 25, 2013, the defence brought a pretrial application pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms to challenge the validity of the warrants and seek exclusion of the evidence seized. The Crown acknowledged the redacted ITO did not disclose sufficient information to make out the reasonable and probable grounds required to support the issuance of the search warrants. However, the Crown could not disclose the redacted details because of confidential informer privilege: information that may reveal an informer’s identity is not to be disclosed unless the innocence of the accused is at stake. The appellant had conceded that the “innocence at stake” exception did not apply in this case.

[24]       The Crown, therefore, brought a cross-application to have the court consider the redacted portions of the ITO in accordance with step six of the procedure set out in Garofoli. The Supreme Court of Canada in Garofoli outlined the steps to be followed in reviewing an ITO when the Crown objects to disclosure of part of the material it contains. Those six steps are outlined at p. 1461 of Garofoli and are as follows:

1.       Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.

2.       The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.

3.       After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.

4.       After the determination has been made in (3), the packet material should be provided to the accused.

5.       If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.

6.       If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.

[25]       In line with step six, the Crown provided the trial judge with a copy of the unedited ITO and a proposed judicial summary of the redacted portions for the judge’s approval. At the urging of the appellant, however, the trial judge first reviewed the appropriateness of the edits that the Crown had made to the ITO, as per steps two and three.

[26]       The s. 8 application continued over eight days and involved rulings on outstanding disclosure, the propriety of the claim of confidentiality for CI1, the appropriateness of the editing of the ITO carried out by the Crown, the adequacy of the summary of the information redacted from the ITO, leave to cross-examine the affiant, and the Crown’s cross-application pursuant to step six of Garofoli to have the trial judge consider the unredacted ITO.

(a)         Disclosure

[27]       Throughout the s. 8 hearing, the trial judge heard and ruled on several disclosure requests the appellant had made in relation to source documents, records reviewed by the affiant, underlying police records not reviewed by the affiant, and details of the criminal history of CI1. Those rulings, other than those related to CI1 that are addressed in the section that follows, are not challenged on appeal.

(b)         Claim of confidentiality with respect to CI1

[28]       The defence challenged the appropriateness of the confidentiality claim advanced over CI1 and requested production of that informer’s criminal record. The appellant alleged CI1 had been acting as an agent of the police and suspected CI1 was one of her friends who had enticed her into a meeting at the apartment shortly before the warrants were executed. The appellant proposed to tender evidence in support of this claim on the conditions that it not be disclosed to the Crown and that she not be cross-examined. This request came toward the end of the lengthy s. 8 application. The trial judge dismissed it, noting that the time for further evidence had passed and that defence counsel had earlier stated he would not be calling further evidence, despite being aware of his client’s allegations and suspicions regarding CI1. The trial judge added that it would probably be inappropriate to allow the appellant to “embark on … a guessing game in the face of informer privilege.” Since the Crown had stated on the record that CI1 was in fact an informer and there was no evidence to suggest otherwise, the trial judge accepted that informer privilege applied.

(c)         Garofoli step two/three – review of the editing of the ITO

[29]       At the appellant’s request, the trial judge reviewed the Crown’s edits to the ITO, as contemplated in steps two and three of the Garofoli procedure. This involved his reviewing the unredacted ITO, comparing it to the redacted ITO, and assessing the appropriateness of the Crown’s edits. After carrying out the review, the trial judge concluded that all the redactions had been properly made to protect informer privilege.

(d)         Review of the Crown’s proposed judicial summary of the redactions

[30]       The trial judge then reviewed the Crown’s proposed judicial summary to confirm it properly reflected the information contained in the redacted portions. The trial judge made a proposal for one amendment to the summary with respect to the informer’s motivation for speaking to police. The Crown consulted the police handler and submitted that the proposed amendment would tend to reveal the identity of the confidential source. The trial judge determined it was appropriate to defer to the Crown’s decision on this issue. He concluded that, as required by Garofoli, the Crown’s proposed summary provided a general summary or outline of the nature of the information that had been redacted to enable the appellant to challenge the warrants. The trial judge sealed the proposal he had made and filed it as an exhibit to preserve a record of the exchange he had shared with the Crown.

(e)         The cross-examination

[31]       The appellant had earlier sought leave to cross-examine the ITO affiant. The trial judge granted leave on March 27, 2013, and the affiant was cross-examined over two days on the various checks police had conducted. The affiant was also cross-examined on the basis for a statement in the ITO that the appellant was “well known to police”. After cross-examination, the appellant requested and was given disclosure of records relating to an electronic search conducted by the affiant. The trial judge offered to permit the appellant to reopen her cross-examination based on the new disclosure, but the appellant chose not to do so. She requested, however, further disclosure and permission to call another officer, but this request was denied on the basis that the additional disclosure and evidence of the officer were of no relevance.

(f)          Step six Crown cross-application for review of the unedited ITO

[32]       Finally, having conceded that it could not support the warrants solely on the basis of the edited ITO, the Crown made a cross-application pursuant to step six of Garofoli to have the trial judge consider the unredacted ITO. The trial judge reviewed the law on step six, noting, at para. 45 of his reasons on the application,[2] that Garofoli provides the court should consider the unredacted ITO “only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.”

[33]       The appellant argued she was entitled to launch a sub-facial attack on the excised material: she asserted she should be able to obtain full details of the excised material to challenge its accuracy and reliability as part of her right to make full answer and defence, which is a principle of fundamental justice. Since she was unable to obtain these full details, she was unable to test the reliability or credibility of the evidence on review. She said the judicial summary provided her with insufficient details to allow her to respond and defend. She argued that as a result, the court should not look at the unredacted affidavit and the warrants should be set aside.

[34]       The Crown submitted that the appellant was not entitled to launch a sub-facial attack, behind the face of the redacted ITO, on the credibility and reliability of the excised material. The Crown maintained that the redacted ITO and judicial summary provided to the appellant met the requirements set out in Garofoli.

[35]       The trial judge agreed with the Crown’s submission. He concluded that, given the strict requirements of informer privilege and the fact that the “innocence at stake” exception did not apply in this case, the appellant would not be able to access the redacted information. He further concluded that the challenge available to the appellant with respect to the information from and about CI1 and CI2 was a facial challenge relating to the three criteria outlined in R. v. Debot, [1989] 2 S.C.R. 1140: whether, in the totality of the circumstances, the confidential informers’ tips were compelling, credible, and corroborated. The trial judge stated, at paras. 51-52:

Accordingly, the test to be applied in determining whether the court can consider the unredacted affidavit in the ITO in the Application, is whether, having regard to the redacted ITO and the Judicial Summary, the Applicant has received sufficient disclosure of the information before the authorizing justice to enable her to challenge whether the Debot criteria have been met.

I am also of the view that, in the absence of some evidence raising the “innocence at stake” exception, a facial validity challenge in respect of the information from the informants is sufficient given the nature of the review taking place. As was pointed out by Charron J. in R. v. Pires & Lising, [2005 SCC 66, [2005] 3 S.C.R. 343,] at para. 30, the Garofoli review is an evidentiary hearing to determine the admissibility of relevant evidence obtained pursuant to a presumptively valid court order. It is not the trial where the guilt or innocence of the accused is at stake. In addition to the Judicial Summary, the Applicant has also had full disclosure of the documents relied upon by the police to obtain the warrant[s] in question here and has cross-examined the affiant of the ITO in respect of the steps he took. In the circumstances, I am satisfied the Applicant has had ample opportunity to challenge the validity of the warrant[s]. I do not consider that her right to full answer and defence has been interfered with.

[36]       In the trial judge’s view, the redacted ITO, judicial summary, and other information the appellant had received were sufficient to allow the appellant to challenge the redacted material in argument or by evidence. A facial validity challenge in respect of the information from the informers, based on the three Debot criteria, was possible. The trial judge thus held he could consider the unredacted ITO in determining whether the warrants could have issued, and accordingly allowed the Crown’s cross-application.

(2)         The ruling on the s. 8 application

[37]       The trial judge dismissed the appellant’s s. 8 Charter application. He found the affiant to be “very credible” (at para. 56). He found that none of the affiant’s statements were inaccurate or misleading, except for two: that the appellant “is well known to police as a drug dealer and is also known to associate with many violent and dangerous individuals”; and that, during the “suspicious incident” in February 2011, the appellant was found “in the company of several well known drug dealers”. He excised those two statements, finding, at para. 64, that they were “a result of over exuberance rather than an improper motive.”

[38]       The trial judge was satisfied that the unredacted ITO as a whole, with the two statements excised, “easily” met the totality of the circumstances test for reasonable and probable grounds to believe an offence had been committed and that evidence would be found at the place of the search (at para. 65). The arguments had focused on the information from and about CI1. The trial judge determined that this information was compelling in detail and that the source of CI1’s knowledge was provided. There was some police corroboration of CI1’s information through information received from CI2, as well as some information confirming CI1’s reliability.

[39]       The trial judge therefore dismissed the appellant’s application and ruled that the evidence obtained pursuant to the warrants was admissible.

C.           ANALYSIS

[40]       The appellant argues the trial judge erred in interpreting and applying the Garofoli step six procedure. Before turning to this issue, I will outline step six of Garofoli and the various interests at play when it is invoked, including the interest of law enforcement, informer privilege, and the accused’s right to make full answer and defence. I will then discuss how a trial judge is to give effect to the accused’s right to make full answer and defence when defence counsel is unable to view the unredacted ITO on which the trial judge is relying.

(1)         The Garofoli step six procedure

[41]       In Garofoli, in the context of a challenge to a wiretap authorization, Sopinka J. set out a non-exclusive and non-exhaustive procedure to be followed when editing the materials in the sealed packet containing the affidavits on which the authorization was granted. This procedure has been determined to also apply to search warrants: see e.g. R. v. Blake, 2010 ONCA 1, 257 O.A.C. 346, at para. 15; R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742. Although the six steps were set out earlier in these reasons, I will repeat steps five and six here for convenience. They are as follows:

5.       If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.

6.       If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.

[42]       When applying the sixth step, the objective is a balancing of conflicting interests. On the one hand are the interests of law enforcement and the protection of informers, and on the other is the accused’s right to make full answer and defence: see Garofoli, at p. 1458. Step six allows the Crown to rely on the unredacted ITO in defending the warrant’s validity, provided adequate steps are taken to preserve the accused’s right to make full answer and defence. Step six provides the Crown with another option where it would otherwise have to concede a s. 8 breach because the warrant’s ITO, after redactions are made to protect a confidential informer’s identity, does not disclose reasonable and probable grounds.

[43]       Garofoli explains that a judge can accede to a Crown request to proceed to step six as long as the accused is “sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.” Put another way, the judicial summary of the redacted material provided to the accused, combined with the redacted ITO, must be enough to ensure the accused is in a position to exercise his or her right to make full answer and defence. Only then can step six be employed. In assessing the summary’s sufficiency, however, account is to be taken of the fact that the accused has received disclosure, that he or she can, with leave, cross-examine the affiant, and that he or she can lead evidence on the application. And, as I will explain, the right to make full answer and defence is to be assessed taking into account that a Garofoli hearing is an admissibility hearing, not a trial on the merits.

(2)         The various interests at play

(a)         The interest of law enforcement

[44]       Society has a strong interest in effective crime detection, gathering of evidence, and apprehension and conviction of criminals. Search warrants help accomplish these goals. They are tools of efficient and effective law enforcement, and thus enhance public protection. They are “weapon[s] in society’s never-ending fight against crime”: see Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, at pp. 180, 184. Therefore, it is important that where the information on which warrants are obtained is sufficient to support them, these properly-issued warrants survive later review by courts. Where proper procedure was followed, and the statutory requirements for issuing a warrant were met, courts should not later interfere.

[45]       The Garofoli hearing is a process that assists in this respect. Step six of the process allows the court to meaningfully assess the ITO as it was prepared by the affiant and presented to the authorizing judicial officer, without redaction, in order to determine the accused’s claim that it did not meet the statutory requirement of reasonable and probable grounds for the issuance of a warrant.

[46]       When an ITO references information from and about a confidential informer and step six of Garofoli is not engaged, the reviewing court is deprived of the opportunity to examine the full, unredacted ITO in reaching its decision. As a result, the court may be forced to artificially determine, based on an incomplete picture, that the warrant could not have issued, even though it very well could have issued based on the complete picture that was before the issuing justice. The affiant police officer may have carefully prepared a detailed and thorough ITO that met the statutory requirements, setting out reasonable and probable grounds for the search and addressing the three Debot criteria for assessing the reliability of informer tips. But the search will nonetheless be found to have violated the accused’s Charter rights because the reviewing court is prevented from relying on the redacted portions of the ITO. Similarly, the issuing justice may have carefully assessed the sufficiency of the ITO before authorizing the issuance of the warrant and correctly concluded that the ITO was adequate, but will nonetheless be found to have erred because the reviewing court cannot rely on the redacted portions of the ITO. See Rocha, at paras. 49-50.

[47]       Provided the accused’s right to full answer and defence is protected, an otherwise sufficient ITO should not, therefore, be found inadequate simply because of redactions made to preserve informer privilege. This would frustrate the utility of many search warrants and the interest of law enforcement.

(b)         Informer privilege

[48]       In R. v. Leipert, [1997] 1 S.C.R. 281, at paras. 9-10, the Supreme Court explained that “informer privilege is an ancient and hallowed protection which plays a vital role in law enforcement … [and] is of fundamental importance to the workings of a criminal justice system.” If police are to rely on informers and informers are to continue to supply needed information, informers must be protected from retribution from those involved in crime.

[49]       The protection of informers is broad to ensure it is adequate. This protection prevents disclosure of “any information which might tend to identify an informer”, including any information that might implicitly reveal his or her identity: Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at para. 26 (emphasis in original). See also Leipert, at para. 18.

[50]       Informer privilege is near absolute. It admits only one exception, referred to as the “innocence at stake” exception: Named Person, at para. 27. Importantly, “the rule does not allow an exception for the right to make full answer and defence”: Named Person, at para. 28. To raise the “innocence at stake” exception to informer privilege, the evidence must provide a basis for concluding that disclosure of the informer’s identity is necessary to demonstrate the accused’s innocence. Absent “innocence at stake”, the court does not have the discretion to disclose any information that could reveal the informer’s identity: see Named Person, at para. 30.

[51]       That said, the court must nonetheless uphold other principles, such as the open courts principle, to the greatest extent possible, without disclosing the informer’s identity: see e.g. Named Person, at para. 45. In the Garofoli context, the court is thus called on to fashion a procedure that, while protecting informer privilege, ensures the accused’s right to full answer and defence is respected. This will invariably mean that editing of the affidavit should be kept to the minimum necessary to protect the informer’s identity.

(c)         The right to make full answer and defence

[52]       An accused’s right to make full answer and defence is one of the principles of fundamental justice and is constitutionally protected under s. 7 of the Charter. It includes the right to full and timely disclosure, the right of cross-examination, the right to know the case to be met, and the right to be given an opportunity to challenge the admissibility of the evidence tendered by the Crown: see R. v. Rose, [1998] 3 S.C.R. 262, at para. 98; and R. v. Durette, [1994] 1 S.C.R. 469, at p. 494.

[53]       Though fundamental, the right to make full answer and defence is not without limit. It is not “a right to pursue every conceivable tactic to be used in defending oneself against criminal prosecution”: R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 64. Precisely what an accused is entitled to in the exercise of the right will vary depending on the context and other competing interests at play. An accused, therefore, who is deprived of relevant information is not automatically deprived of his or her right to make full answer and defence. Other public interests may limit the accused’s ability to access potentially relevant information. In R. v. Stinchcombe, [1991] 3 S.C.R. 326, for instance, the Court held that the Crown’s disclosure obligation is subject to a privilege exception.

[54]       Some trial courts, such as in R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at para. 106, have interpreted the Supreme Court’s decision in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, as standing for the proposition that, in a Garofoli hearing, the right to full answer and defence is “attenuated” because the hearing is one of admissibility and not a trial on the merits.[3]

[55]       Although I am not suggesting that cases that have referred to the right to make full answer and defence as being “attenuated” are wrongly decided, in my view such a reference is misleading. It suggests the right is “reduce[d in] strength, effect, or value” (Concise Oxford English Dictionary, 11th ed., sub verbo “attenuate”), when in fact what Pires explains is that, because it is a hearing on the admissibility of evidence, the right to full answer and defence needs to be viewed in context and balanced against other interests: at para. 24.

[56]       Pires involved a challenge to the requirement, set out in Garofoli, that an accused seek and obtain leave to cross-examine the affiant of an ITO. It was argued this leave requirement unconstitutionally limited the accused’s right to make full answer and defence. Charron J. found the leave requirement was justified. She stated that the extent to which the right to cross-examine is a necessary adjunct to the right to make full answer and defence depends on the context (at para. 3), and that at a Garofoli hearing, as at any stage in the proceeding, the right to cross-examine is limited by relevancy. She explained, at para. 31:

Even on the trial proper, the right to cross-examine is not unlimited. In [R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 44] the court reiterated the principle that counsel are “bound by the rules of relevancy and barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their probative value. [Emphasis in original.]

[57]       Although the right to cross-examine is central to the right to make full answer and defence, the context of a Garofoli hearing is that it is an admissibility hearing and there are other important but competing interests at play, including the interest of maintaining informer privilege.

[58]       The Pires decision is consistent with R. v. Mills, [1999] 3 S.C.R. 668 where the Supreme Court explained, at paras. 72 and 73, that an accused is not entitled to the most favourable procedure that could possibly be imagined. The fairness of the trial process must be assured from the point of view of the community as well as of the accused. Although Mills entailed a balancing between Charter-protected rights, and informer privilege is not a Charter-protected right, I nonetheless view the balancing contemplated in Mills as applying in the same way where informer privilege is involved. As discussed, informer privilege is of “fundamental importance” to our system of criminal justice: Leipert, at para. 10. Sopinka J. in Garofoli stated that, in the editing process, a balance must be struck between the right to make full answer and defence and the interests of law enforcement, including protecting informer privilege: at p. 1460.

[59]       Leipert and Named Person make clear that the accused’s right to full answer and defence does not override informer privilege. The only exception to informer privilege is where the accused establishes innocence is at stake. As noted earlier, it was conceded that such an exception did not arise in the present case.

[60]       As in Mills, the question is how to define the right to make full answer and defence in context. In doing so, courts must give the fullest effect possible to the right while protecting a confidential informer’s identity: see R. v. Hunter (1997), 59 O.R. (2d) 364 (C.A.)

(3)         Protecting the right of full answer and defence

[61]       I turn now to an analysis of what is necessary to give effect to the right of full answer and defence in the context of a Garofoli hearing at step six. I first examine the context of the hearing at step six and then determine that an accused is entitled to mount both a facial and sub-facial challenge at that stage.

(a)         The context of Garofoli step six

[62]       As I have explained, it is important to place the right to full answer and defence and its exercise in context. Five aspects of the step six context are of particular import.

[63]       First, an accused, in challenging the warrant’s validity and making full answer and defence, has more than just the judicial summary and redacted ITO in his or her possession. An accused will also have all material in the possession or control of the Crown that is potentially relevant to the case, subject to privilege, as per the Stinchcombe disclosure requirements and may also have third party disclosure materials. Further, in some cases, the accused will have cross-examined the affiant and elicited evidence from that cross-examination that will assist in formulating an attack on the warrant’s validity. The accused may also have chosen to lead evidence.

[64]       Second, it should be recalled that the Garofoli hearing is a pretrial, threshold evidentiary hearing challenging the validity of an evidence-gathering tool. It is not a trial on the merits where guilt or innocence is at stake. It involves an inquiry into whether there was any basis on which the authorizing judge could be satisfied that the relevant pre-conditions to issuing an authorization or warrant existed. As explained in R. v. Sadikov, 2014 ONCA 72, 314 O.A.C. 357, at para. 86, citing R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 21, leave to appeal to SCC refused, [2010] S.C.C.A. No. 84, “[w]arrant review is an integral part – a first step – in an inquiry into admissibility of evidence proposed for reception. It is not a trial and must not take on the trappings of a trial in which the truth of the allegations contained in the indictment is explored.”

[65]       Third, although it may be germane, the ultimate issue is not the truth of a confidential informer’s tips on a sub-facial warrant challenge. The fact that an informer provided inaccurate or false information to police will be relevant only to the extent the ITO affiant knew or should have known it was false, because then one of the preconditions for issuing the warrant would not have been met: reasonable belief in the existence of the necessary statutory grounds. In Pires, Charron J. explains as follows, at para. 41:

In some cases, the proposed cross-examination may be directed at the credibility or reliability of an informant. However, cross-examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false. We must not lose sight of the fact that the wiretap authorization is an investigatory tool. At that stage, a reasonable belief in the existence of the requisite statutory grounds will suffice for the granting of an authorization. Upon further investigation, the grounds relied upon in support of the authorization may prove to be false. That fact does not retroactively invalidate what was an otherwise valid authorization. [Emphasis added.]

[66]       Fourth, a warrant is presumptively valid: see Pires, at para. 30; and R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45, aff’d 2011 SCC 32, [2011] 2 S.C.R. 549. The party challenging the validity of a warrant bears the onus of demonstrating it was not validly issued. Therefore, the issue on a Garofoli hearing is whether the minimum standard required for authorizing a search and seizure was established in the ITO. That standard is reasonable and probable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the search: see Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 168.

[67]       Finally, 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 informer and where the informer’s identity must be protected. Because reliance is placed on the information received from the informer, the reliability of that informer and information is important and must be assessed. As explained by the Supreme Court in Debot, where a confidential informer’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. These three factors are assessed on a totality of circumstances, keeping in mind that weaknesses in one factor may, to some extent, be compensated by strengths in the other two factors.

[68]       An ITO affiant must, therefore, include details about the confidential informer’s reliability and what makes the tip compelling to satisfy the Debot factors. The ITO affiant must also include details unfavourable to the informer, as part of the affiant’s duty to make full and frank disclosure: see R. v. Morelli, 2010 SCC 8, [2010] 2 S.C.R. 253, at para. 58; and R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 46. Yet, the above details will often risk identifying the informer and will thus be redacted on warrant review, even though they are potentially the most persuasive portions of the ITO.

[69]       How then to give effect to the right of full answer and defence in such a context?

(b)         An accused must be able to mount a facial and sub-facial challenge at step six

[70]       To give effect to the right to make full answer and defence at step six, the accused must be able to mount an effective challenge of the ITO and, in particular, challenge in argument or by evidence whether the Debot criteria of compellability, credibility, and corroboration have been met. At the same time, informer privilege must be protected. It could be argued that it is impossible for an accused to meaningfully challenge whether the three Debot factors were met if the accused does not have access to the redacted information.

[71]       Step six of Garofoli, however, clearly contemplates this situation. In step six, some information provided by or concerning the informer is not revealed to the accused but is nonetheless available to the judge in assessing the validity of the warrant. The only caveat is that the accused must be “sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.”

[72]       Two aspects of this caveat are worth highlighting. One is that the accused need be aware of only the nature of the redacted details, not the details themselves. The other is that the accused’s awareness, gained through the judicial summary and other available information, must be sufficient to allow the accused to mount a challenge of the redacted details both in argument and by evidence. In my view, this means an accused’s attack on an ITO and the validity of a search warrant can be made on either a facial or sub-facial basis, or both. In other words, the accused must, through the judicial summary, cross-examination of the affiant, or the leading of evidence, be in a position to mount both a facial and sub-facial attack on the warrant, including a challenge to those parts of the ITO that are redacted but relied on by the trial judge.

[73]       A facial challenge simply looks to whether the ITO, on its face, was sufficient to support the warrant. The statements in the ITO are accepted as reliable and accurate, and there is a presumption that the search warrant is facially valid, which the accused has the onus of rebutting: Québec (Procureur général) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 68. The court asks whether, by its terms, the warrant authorized the search and seizure and whether the authorizing justice, acting judicially, could have issued the warrant based on the contents of the ITO. See Araujo, at paras. 19, 44; and Sadikov, at para. 37. In other words, does the ITO on its face provide sufficient grounds for believing evidence of an offence would be found at the target address?

[74]       On a sub-facial challenge, the burden likewise rests on the accused to establish the warrant’s invalidity. A sub-facial challenge, however, goes behind the ITO “to attack the reliability of its content”: Araujo, at para. 50. Any errors and inaccuracies in the ITO are excised, but can be amplified by evidence as long as the errors or inaccuracies were made in good faith. In determining the sub-facial validity of a warrant, the reviewing judge inquires into whether, based on the record as amplified on review, “there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued” (Araujo, at para. 51). An accused might, for instance, challenge the credibility and reliability of the ITO affiant through cross-examination. This could serve to undermine the reliability of the affiant’s statements in the ITO, including the information attributed to the confidential informer: see e.g. R. v. Brown, 2013 ONSC 2848, 282 C.R.R. (2d) 220, at para. 115.

[75]       An accused might also argue, for example, that statements in the ITO describing police observations of hand-to-hand drug transactions between the accused and others are inaccurate because of evidence led showing that the accused was in another jurisdiction at the time these observations were allegedly made. Such inaccurate statements would be excised and would not be considered in determining whether the warrant could have issued. The Crown, however, may be able to amplify the record by introducing evidence that police made the observations on a different date and that the ITO affiant, acting in good faith, mistakenly provided the wrong date in the ITO.

[76]       As mentioned, however, at step six, the very details about the confidential informer that satisfied the Debot requirements are often contained in the redacted portions of the ITO. How then can an accused mount a sub-facial attack to challenge whether the redacted details are compelling, credible and corroborated? Such an attack is possible although the information on which the attack is based must be tailored so as not to breach informer privilege, which is near absolute. In other words, an accused is not precluded from launching a sub-facial attack at step six; he or she is simply precluded from accessing the redacted portions of the ITO beyond the description of their general nature set out in the judicial summary.

[77]       Despite not having access to the redacted information, the accused, using a well-crafted judicial summary as well as the disclosure received, the redacted ITO, and any cross-examination of the affiant and evidence tendered, will nonetheless be in a position to mount a sub-facial attack and challenge the adequacy of the ITO. The accused can, for example, highlight areas of omission for the reviewing court, attack the steps (or lack thereof) taken to corroborate the information received from the informer, and make arguments in the alternative and on general principles of informer reliability.

[78]       The precise contours of the challenge will vary in each case. For example, if the judicial summary reveals that the authorizing justice was not informed of a confidential informer’s criminal record and motivation for speaking to police, if any, the accused could argue there was insufficient information about the credibility of the informer to justify the warrant’s issuance. The challenge could be strengthened if the accused cross-examined the affiant to establish either that he never enquired as to the criminal record and motivation or, if he had the information, he withheld it from the authorizing justice. See for example R. v. Green, 2015 ONCA 579.

[79]       Another example is where a confidential informer tells police he or she participated in hand-to-hand drug transactions with an accused on certain dates and although the specific dates are redacted, the month in which it is said to have occurred is contained in the summary. There, a sub-facial challenge may take the form of the accused’s leading evidence showing that he or she was in custody on other charges during a certain timeframe and the police knew or ought to have known this was the case; the trial judge would be able to determine whether that timeframe overlaps with the redacted dates.

[80]       The above helps clarify why the accused’s inability to access the redacted details of what the informer told police does not necessarily prevent the accused from meaningfully challenging the warrant’s sub-facial validity. Knowledge of these details may not be required to prove by argument or evidence that police knew or should have known the informer’s tips were false or unreliable, or that police took inadequate steps to corroborate the informer’s tips. Furthermore, awareness of the general nature of the redactions, provided by a judicial summary, meaningfully assists the accused by providing a basis for challenging whether the Debot criteria had been met.

[81]       Clearly, a well-crafted judicial summary is essential if the accused is to be in a position to mount a sub-facial attack and exercise his or her right to make full answer and defence. The adequacy of the summary, therefore, plays a key role in the court’s assessment of whether the accused is sufficiently aware of the nature of the redacted information so that step six can be employed.

(4)         Assessing the sufficiency of the summary and ITO at step six of Garofoli

[82]       I turn now to how a court is to assess whether the judicial summary is sufficient to ensure that the right of full answer and defence, including the possibility of a sub-facial challenge, is protected such that the court can accede to the Crown’s request to have the trial judge consider the redacted material.

[83]       First, the reviewing judge must carefully prepare a judicial summary or carefully review the proposed judicial summary prepared by the Crown. Although Garofoli sets out that a “judicial summary” must be provided to the accused, in practice the Crown prepares a proposed judicial summary for the trial judge to approve, if satisfied it is sufficient. In either preparing the summary or approving the Crown’s proposed summary, the trial judge must be satisfied that the summary includes as much information as is possible to allow the accused to mount both a facial and a sub-facial attack on the ITO while nonetheless ensuring that informer privilege is maintained. 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.

[84]       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. In preparing or approving the summary, the trial judge should consider whether the summary ought to indicate that the redacted material includes the following types of information, to the extent they are relevant and will not risk revealing the identity of the confidential informer. What will be contained in the summary will vary from case to case. The list is illustrative only; it is neither prescriptive nor exhaustive:

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

·        The informer’s relationship with/to the accused and how they first came into contact

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

·        Whether the informer has previously provided information to police

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

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

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

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

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

·        Whether the informer was instructed on the penalties for giving false information

·        Whether descriptions provided by the informer match the accused or the target location

·        The degree of detail of the information that the informer provided to police

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

·        Any discrepancies between the information of one informer and another

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

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

I do not suggest that the failure to include one or more of these points will necessarily make the summary inadequate. A sufficient summary should let the accused know the nature of the information behind the redactions, provided this would not breach informer privilege. He or she should know what went into the ITO and what did not. Possessing this information will allow the accused to meaningfully argue whether the information contained in the ITO is sufficient to meet the Debot criteria.

[85]       Where possible the summary should track the redactions in the ITO. That is, the judicial summary should inform the accused not only of what was redacted but also where in the ITO the redacted information is contained. As well, the judicial summary should say if the nature of a redaction in a specific paragraph of the ITO cannot be summarized.

[86]       If prior to proceeding to step six of Garofoli the reviewing judge has already ruled that the accused would not be allowed to cross-examine the affiant, the reviewing judge should be open to reconsidering this ruling once the judicial summary is provided to the accused. Similarly, if cross-examination of the affiant already occurred, the reviewing judge could consider whether the accused should be allowed to recall the affiant for further cross-examination.

[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 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]       Once the reviewing judge has determined that the accused is sufficiently aware of the nature of some or all of the redacted information, he or she can then assess the adequacy of the ITO with the help of that information. This assessment must be made in context. 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. The exercise here is somewhat akin to the admission of testimony that is not subject to complete and full cross-examination because of a witness’s intervening illness or death (R. v. Cameron (2006), 208 C.C.C. (3d) 481 (Ont. C.A.), at paras. 36-37). In those cases, the lack of testing by cross-examination is taken into account in weighing what is otherwise admissible evidence. Similarly, 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.

(5)         Summary of the Garofoli step six procedure

[89]       Step six of Garofoli is an exceptional procedure, in that the trial judge sees and relies on information that has not been disclosed to the accused because of the need to protect informer privilege. This procedure arises in the pre-trial process, which does not go directly to the accused’s guilt or innocence. Yet, in many cases, the outcome of the challenge to the warrant will dictate the outcome of the trial and the accused must still be able to mount a sub-facial challenge to the warrant, as part of his or her right to make full answer and defence. The need to strike a balance between the interest of law enforcement, informer privilege, and the accused’s right to full answer and defence will result in a challenge that is less direct than it otherwise could be.

[90]       Faced with this reality, trial judges must strike an appropriate balance so as to ensure the accused’s right to full answer and defence is adequately protected. This is done by preparing a carefully-crafted judicial summary and giving appropriate weight to the redacted details that were not directly challenged. With respect to the judicial summary, the trial judge must be satisfied that the summary, together with other information available to the accused, provides the accused with enough knowledge of the nature of the redactions to be able to challenge them in argument or by evidence. 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.

[91]       I now turn to the appellant’s specific submissions on the step six issue.

(6)         Did the trial judge err on the Garofoli ruling?

[92]       The appellant argues the trial judge erred in his interpretation and application of the Garofoli step six procedure. Specifically, the appellant argues the trial judge erred in

(a)       limiting the appellant to a facial validity challenge of the ITO, which led to the trial judge interpreting step six in a manner that infringes the s. 7 right to make full answer and defence;

(b)       finding the right to make full answer and defence is attenuated at step six of Garofoli; and

(c)       failing to consider relevant factors in granting the Crown’s step six application.

(a)         Did the trial err in limiting the appellant to a facial validity challenge of the ITO?

[93]       The appellant argues the trial judge erred in ruling that when step six of Garofoli is invoked, the accused is not entitled to launch a sub-facial attack on the ITO. The appellant further argues that a sub-facial challenge to the ITO was not possible because the judicial summary of the redacted portions of the ITO lacked sufficient detail to allow for an effective challenge.

[94]       I would not give effect to these submissions. As I explained earlier, I agree with the appellant that an accused must be allowed to mount a sub-facial attack on an ITO even when step six of Garofoli is applied. I also agree that some of the trial judge’s comments suggest he may have foreclosed the possibility of such a sub-facial challenge. A fair reading of his reasons as a whole, however, leads me to conclude the trial judge did in fact allow the appellant to advance a sub-facial challenge. The appellant fully explored the adequacy of the ITO in her cross-examination of the affiant and in submissions. The trial judge excised two inaccurate or misleading statements from the ITO. He then considered and rejected the appellant’s sub-facial challenge to the whole of the ITO, including the redacted portions.

[95]       The concerning part of the trial judge’s reasons is his comments, at para. 52, that “in the absence of some evidence raising the ‘innocence at stake’ exception, a facial validity challenge in respect of the information from the informants is sufficient given the nature of the review taking place”, and, at para. 53, that the redacted ITO and judicial summary “enable[d] [the appellant] to challenge the facial validity of the warrant in respect of the informants based on the Debot criteria.” Between his making of these comments, however, the trial judge in fact considers the appellant’s sub-facial attack on the ITO. He specifically refers to the evidence elicited by the appellant in the course of the application, including the cross-examination of the affiant and the documents produced.

[96]       As I read the trial judge’s apparent limiting of the appellant to a facial attack, it is simply a response to the appellant’s submission that her right to full answer and defence entitled her to obtain and directly challenge the redacted details of the information from and about the confidential informer, a submission the appellant has also advanced in this court. On this point, the trial judge concluded, correctly in my view, that the detailed information redacted from the ITO could not be provided to the appellant. To do so would risk revealing the identity of the confidential informer. Absent “innocence at stake”, which is not alleged in this case, the court and the Crown cannot disclose this information to the appellant. It must remain redacted.

[97]       When outlining step six in Garofoli, the Supreme Court clearly contemplated that an accused would not be privy to all the information contained in the ITO despite the fact it would be reviewed and relied on by the reviewing judge. By its very nature, step six involves a disparity in the information available to and relied on by the judge on one hand, and the information available to the accused on the other. The accused is limited to receiving only a summary of the redacted material, provided that this summary allows the accused to be “sufficiently aware of the nature of the excised material to challenge it in argument or by evidence.”

[98]       Contrary to her submission, by using the summary as well as all of the other information available to her, the appellant had sufficient information to enable her to mount a sub-facial challenge of the redacted portions and she was not prevented from making such a challenge. Admittedly, as I have explained, the challenge is inevitably less focused than if she had access to all of the details contained in the redacted ITO.

(b)         Did the trial judge find the appellant’s right to full answer and defence was attenuated?

[99]       The appellant submits the trial judge misinterpreted the decision in Pires as supporting the notion that the right to make full answer and defence is “attenuated” in search warrant challenges when Garofoli step six is invoked. She further submits this misinterpretation of the law led the trial judge to disallow a sub-facial challenge of the redacted information.

[100]    Contrary to the appellant’s submission, nowhere in his reasons does the trial judge suggest the appellant’s right of full answer and defence was attenuated. The trial judge referred to Pires for the proposition that the Garofoli hearing is an evidentiary hearing on the admissibility of evidence.

[101]    As I have explained, I do not consider that the constraints imposed when step six of Garofoli is invoked attenuate or impair the right of full answer and defence. Step six involves a balancing between the need to maintain informer privilege and the accused’s right to challenge the ITO. Properly applied, step six achieves this balance without “attenuating” the right of full answer and defence. The right is defined in context; it is not limited or reduced.

[102]    As I have discussed earlier, several lower-court decisions have suggested that, at step six, the right of full answer and defence is “attenuated”. That interpretation is supported by the Crown who in its submissions argues Pires has “conclusively determined that … the right to full answer and defence is attenuated on a Garofoli hearing”. In my view, referring to the right as being “attenuated” implies it is somehow lessened on a Garofoli hearing. This, I suggest, misinterprets Pires. That case simply acknowledges that the way in which the right to make full answer and defence is exercised where informer privilege is involved will be adapted taking into account that it is an admissibility hearing and because of the need to maintain that privilege.

[103]    The trial judge’s limits on the disclosure of redacted information were appropriate and necessary to prevent the informers’ identities from being revealed. He did not err by limiting disclosure of the redacted information as he did, and the appellant’s right to full answer and defence was not impaired. I would not, therefore, give effect to this ground of appeal.

(c)         Did the trial judge fail to consider relevant factors in granting the Crown’s step six application?

[104]    In support of this ground of appeal, the appellant first argues the trial judge ought to have found that the ITO’s affiant did not make full, fair, and frank disclosure to the issuing justice. I would not give effect to this submission. The trial judge considered the inaccuracies and misleading portions of the ITO in the context of all the evidence and concluded that there were two errors and that they were made in good faith. In the trial judge’s view, these errors did not impair the affiant’s credibility and honesty.

[105]    The appellant also argues that where, as here, the requisite reasonable and probable grounds to obtain a warrant heavily depend on redacted information, two difficulties arise. First, the appellant is deprived of the very information needed to challenge whether the Debot criteria - compelling, credible, and corroborated - were met. The absence of this information makes the judicial summary inadequate. Second, minimal effort is expended to corroborate the information obtained from the informer. In this case, for instance, police essentially conducted no confirmatory investigation apart from database checks. In the light of these concerns, the trial judge should not have proceeded to step six. Allowing the Crown’s step six cross-application despite this dearth of information means police in the future will conduct little, if any, independent investigation to corroborate informer tips; police will know that on later warrant review, trial judges can rely on information from and about a confidential informer and that most of it will be redacted and difficult to challenge. In other words, the appellant says police will rely more on informers and less on independent investigation.

[106]    In my view, this argument is misplaced. Trial judges will continue to assess all the Debot criteria in the totality of the circumstances. Step six of Garofoli does not weaken the application of these criteria. The real issue at step six is to ensure the judicial summary is adequate, such that the right to full answer and defence is not interfered with.

[107]    As set out in Debot, the assessment of the reliability of an informer’s tip is to be made on the basis that weaknesses in one of the Debot factors may, to some extent, be compensated for by strengths in the other two factors. The trial judge acknowledged that corroboration was a weakness in this case, as police had not directly confirmed the appellant’s criminal conduct through independent investigation. Still, there was some corroboration of CI1’s information through CI2.

[108]    Moreover, the trial judge found that the strengths in the other two Debot factors compensated for the limited amount of corroboration. He found the information received from CI1 compelling in its detail. CI1 gave an accurate description of the appellant, her nickname, and her connections to and activities in the Lawton Blvd. apartment. And, CI1 was a proven and credible source based on information previously provided to police. CI1 spoke to police twice in the five weeks before the warrant was issued and had provided information to police in the past that had led to arrests and seizures of drugs and a firearm. The above demonstrates that the trial judge made the required Debot assessment in the totality of the circumstances, and I see no basis to interfere with it.

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

[110]    I also see no basis to interfere with the trial judge’s finding that the nature of the information provided in the summary was adequate. The summary informed the appellant that the following types of information were included in the material before the issuing justice but redacted from disclosure:

·        CI1’s involvement in criminality;

·        more details of CI1’s reliability in relation to previous police investigation(s);

·        CI1’s motivation for providing information, including whether compensation or consideration was sought;

·        the information provided by CI1 in relation to other investigations;

·        the source of CI1’s knowledge about the appellant and her criminal activity;

·        the specific basis on which CI1 believed that the appellant possessed a firearm and was dealing drugs;

·        the exact dates in 2012 that CI1 provided information;

·        further details of the information about the appellant provided by CI2; and

·        CI2’s source of knowledge about the appellant.

[111]    While the judicial summary could have been more fulsome and does not cover all of the categories in the way I have set them out earlier in these reasons, I am satisfied that the summary made the appellant sufficiently aware of the nature of the redacted material to challenge it in argument or by evidence as envisaged by Garofoli.

[112]    Finally, the appellant argues that because she suggested CI1 might be a police agent, the trial judge ought to have provided a fair procedure to challenge the claim of confidentiality over CI1 and acknowledged that the inadequacy of the judicial summary undermined the appellant’s ability to challenge this claim. In my view, the trial judge was correct to dismiss the appellant’s request to inquire into the confidentiality claim and prevent cross-examination of the affiant on this point. The appellant advised the trial judge that she thought she knew who CI1 was and that she should be permitted to ask the affiant if she was correct in her guess. Such an inquiry should not be pursued unless the accused provides a basis for the challenge to the claim of informer privilege. The Crown, police, or courts are not to confirm or deny a suspicion of the accused, communicated through counsel without evidence. To do so would be an obvious breach of the duty to maintain confidentiality.

(d)         Conclusion on the step six issue

[113]    Although the trial judge did not explicitly follow the procedure I have outlined in these reasons, I am satisfied that his failure to do so in this case did not affect the outcome. The trial judge’s conclusion is well supported by the record.

III.         THE REMAINING ISSUES ON APPEAL

[114]    The appellant argues the trial judge erred in:

(a)       dismissing the appellant’s application pursuant to R. v. Corbett, [1988] 1 S.C.R. 670, and admitting the appellant’s criminal record if she chose to testify; and

(b)       treating the drug conviction as an aggravating factor for the firearm offences and then imposing a consecutive sentence for the drug conviction.

A.           THE CORBETT APPLICATION

(1)         The trial judge’s ruling on the application

[115]    The appellant has a criminal record, which at the time of trial consisted of youth convictions for theft, possession of property obtained by crime, failure to stop at the scene of an accident, failure to attend, robbery, and trafficking in a Schedule 1 substance. Her adult convictions were for failure to comply (x2), possession of a Schedule 1 substance (x2), trafficking in a Schedule 1 substance, and failure to comply with a recognizance. She brought a Corbett application at trial, seeking to excise the drug convictions and edit the robbery conviction to theft. The Crown conceded only the editing of the robbery to theft, which the trial judge accepted for credibility reasons.

[116]    On the drug convictions, the trial judge accepted that previous drug offences in a case of drug charges are highly prejudicial and would normally outweigh probative value. However, he noted that the appellant had attacked the credibility of the police officers: one of the theories of the defence was that police officers executing the warrants had moved evidence in the apartment to make it seem as if the appellant was occupying the entire apartment as opposed to just the living room. The appellant had also alleged that a third party who had enjoyed access to the apartment (Keane-Dawes) was involved in dealing drugs, specifically those found in the apartment.

[117]    The appellant pointed to R. v. Brown (2002), 162 O.A.C. 17 (C.A.), arguing that if the accused cross-examines police officers in terms of their credibility on the events surrounding the offences and does not put their character or criminal record in issue, Corbett is not engaged. The trial judge rejected this argument, holding as follows:

If all that was happening here was an attack on the credibility of the police officers within the investigation they did, I would agree with the result in Brown. Here, it’s more than that. There’s an allegation of a third party being responsible and in those circumstances the landscape switches.

The suggestion that a third party who was known to deal drugs was responsible for the items seized from the apartment increased the probative value of the appellant’s prior drug convictions. The trial judge therefore decided that if the appellant were to testify, he would permit the drug offences to be raised to achieve fairness in the circumstances of this case. As a result of this decision, the appellant decided not to testify.

(2)         Analysis

[118]    The appellant argues the trial judge’s reasons for dismissing the Corbett application reflect two errors in principle. First, he failed to apply the principle that drug convictions have no probative value in relation to credibility, but present a significant risk of unfair prejudice. Second, he erred in finding the nature of the defence attack required admission of the appellant’s criminal convictions. In the appellant’s submission, she had not mounted an attack against a third party during cross-examination of Crown witnesses. In fact, the appellant points to submissions made on the Corbett application where she expressly stated that if her drug convictions were excised, she would not introduce evidence of the criminal past of third parties. She further submits that, as in Brown, the defence attack was limited to the officers’ credibility as it related to the offences before the court and did not involve an attack on their character.

[119]    I would not give effect to these submissions. The trial judge properly exercised his discretion to permit cross-examination on the appellant’s prior drug convictions to protect the fairness of the trial process.

[120]    With respect to the first argument, the trial judge expressly acknowledged that previous drug offences in cases involving drug charges are highly prejudicial. His careful reasons show he applied this principle.

[121]    On the second argument, the trial judge did not err in finding the nature of the appellant’s attack required that her drug convictions remain available for cross-examination if she were to testify. One prong of the defence’s position at trial was that the appellant was a temporary guest of the apartment where the search was conducted and that the regular occupant and her boyfriend were in fact responsible for the drugs, money, and gun located by police. Both the regular occupant, Blair, and her ex-boyfriend, Keane-Dawes, had prior history with drugs. It would have been misleading to go to the jury with two other potential suspects, each with prior drug histories and a connection to the apartment, while presenting the appellant as someone with no drug history.

[122]    The appellant’s commitment on the application – that she would not raise Blair’s and Keane-Dawes’s history with drugs if her own drug convictions were excised – came too late. In this case, before the Corbett application was heard, the defence had already raised the drug-related history of these third parties. In cross-examining the Crown’s drug expert, defence counsel had asked a series of questions about the plausibility of a scenario where Blair (whose name he put to the expert) and her ex-boyfriend travel back and forth to Windsor, where she strips and he traffics cocaine in strip clubs, and the ex-boyfriend then returns to “cook” the cocaine at the apartment, storing some cocaine there and taking some with him. In the light of this, the appellant’s commitment amounted to only a commitment not to raise the issue further.

[123]    The trial judge determined that, because the appellant had already raised this scenario with the Crown’s expert, allowing the appellant to testify without allowing the Crown to raise her prior drug history would have left the jury with an unbalanced picture.

[124]    A trial judge’s decision on the balancing of interests on a Corbett application is owed significant deference: R. v. Paul, 2009 ONCA 443, 249 O.A.C. 199, at paras. 10, 13-15, 18-19, leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 450. Corbett clearly emphasizes the importance of creating a fair picture for the jury. Where the criminal backgrounds of witnesses are raised, and the accused is permitted to withhold her own criminal past, the jury may be misled.

[125]    Furthermore, the appellant’s attack on the police officers’ credibility was not the basis for dismissing the application. The trial judge agreed with the appellant that an attack on the police officers’ credibility that was directly connected to their investigation of the offences would not lead to a dismissal of her application. The basis for his decision was the third-party attack. In his words, the appellant was making an “allegation of a third party being responsible and in those circumstances the landscape switches.”

[126]    I view this as a close call. The trial judge might have ruled the other way and then taken steps in the drafting of his charge and in the giving of directions to the parties so as to address the Crown’s concern. However, I do not consider that he erred in law in his ruling and I see no basis to interfere with the trial judge’s exercise of discretion in deciding that he would permit cross-examination of the appellant on her prior drug convictions and that he would also provide a strong mid-trial and final instruction to ensure the jury did not misuse this evidence.

B.           The sentence appeal

[127]    The jury returned a verdict of guilty and convictions were entered on seven charges. In sentencing the appellant for these convictions, the trial judge considered the totality principle and imposed a global sentence of six years. He awarded 1.5:1 credit for 14.5 months of pre-sentence custody, resulting in a remaining sentence of four years, 2.75 months. The convictions and sentence consisted of:

·        possession of a loaded restricted firearm not being the holder of a licence and registration certificate – four years;

·        possession of a restricted firearm knowing that she was not the holder of a licence and registration certificate – 1.5 years concurrent;

·        possession of a prohibited device without being the holder of a licence – six months concurrent;

·        possession of cocaine for the purpose of trafficking – two years consecutive;

·        possession of proceeds of crime exceeding $5,000 – six months concurrent; and

·        possession of marijuana – 10 days concurrent.

Although the appellant was also convicted of possession of a restricted firearm without having a licence and registration certificate, this conviction was stayed pursuant to the principle in R. v. Kienapple, [1975] 1 S.C.R. 729.

[128]    In reaching his conclusion that the appropriate sentence on the loaded restricted firearm offence was four years, the trial judge found that the combination of possessing drugs and a firearm was one aggravating factor of many. The appellant submits, as she did on sentencing, that the combined effect of relying on the joint possession of the firearm and drugs as an aggravating factor, while also imposing a consecutive term for the cocaine conviction, amounts to double-counting and is harsh in the circumstances.

[129]    I would not interfere with the sentence imposed. Contrary to the appellant’s submission, the trial judge did not double count in reaching the sentence he imposed. He set the appropriate sentence for both the drug and gun offences based on the jurisprudence, and came to a proper global sentence. He imposed a consecutive sentence for the cocaine conviction because it constituted a different legally-protected interest from the gun offences.

[130]    In his reasons, the trial judge described the circumstances of the offences fully and appropriately considered the serious safety concerns surrounding possession of a firearm alongside illicit drugs: see R. v. Wong, 2012 ONCA 767, [2012] O.J. No. 5250, at paras. 11, 13. Importantly, he went on to consider the totality principle and whether six years was an appropriate global sentence. He concluded that it was. The trial judge committed no error in principle, and the overall term he imposed lies well within the acceptable range for similar offences.

IV.         DISPOSITION

[131]    For these reasons, I would dismiss the conviction appeal, allow leave to appeal sentence, and dismiss the sentence appeal.

Released: (AH) September 16, 2015

“Paul Rouleau J.A.”

“I agree Alexandra Hoy A.C.J.O.”

“I agree K. Feldman J.A.”