court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADORGENERAL DIVISION Citation: R. v. Phillips, 2018 NLSC 25 Date: February 8, 2018Docket: 201601G6760 Her Majesty The Queen v. BraNdon Phillips Before: Justice Valerie L. MarshallReasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: September 20, 21, 22, 25 and 26, 2017 Date of Judgment: October 10, 2017

Summary: The Defence filed a pre-trial Charter application claiming the Accused’s

section 8 Charter rights had been breached, and seeking to exclude evidence seized pursuant to warrants. HELD: The application was dismissed. Appearances: Shauna MacDonald and Mark Heerema Appearing on behalf of the Crown Jeffrey Brace and Mark Gruchy Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421; R. v. Pires; R. v. Lising, 2005 SCC 66; R. v. Collins, (SCC), [1987] 1 S.C.R. 265; R. v. Campbell, 2010 ONCA 588,aff’d 2011 SCC 32; R. v. Sadikov, 2014 ONCA 72; Hunter v. Southam, (SCC), [1984] 2 S.C.R. 145; R. v.

Parsley, 2016 NLCA 51; World Bank Group v. Wallace, 2016 SCC 15; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Araujo, 2000 SCC 65; R. v. Paryniuk, 2017 ONCA 87; R. v. Bisson, [1990] 2 S.C.R. 142; R. v. Morris (1998), 1998 NSCA 229 , 134 C.C.C. (3d) 539 (N.S.C.A.)); R. v.Browne, 2012 ONSC 3942; R. v. Debot, (SCC), [1989] 2 S.C.R. 1140; R. v. Plant, (SCC), [1993] 3 S.C.R. 281; R. v. Greffe, (SCC), [1990] 1 S.C.R. 755; R. v. Prosser,2016 ONCA 467. STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms, s. 11,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c.11. REASONS FOR JUDGMENT Marshall, J.:[1] On October 10, 2017, the Court dismissed a pre-trial application with written reasons to follow. These are the Court’s written reasons. INTRODUCTION[2] Brandon Phillips was charged with first-degree murder. The Defence filed an application seeking to exclude evidence seized pursuant to warrants, on the basis of an alleged violation of the Accused’s

section 8rights under the Canadian Charter of Rights and Freedoms, s. 11,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (the “Charter”).

Section 8 of the Charter protects anaccused from unreasonable search and seizure.

[3] The claim for breach of the Accused’s

section 8 Charter rights was based upon the contents of the informations to obtain (the “ITOs”) which were sworn in support of issued warrants, including a generalwarrant, and a warrant to search the Accused’s residence. Specifically, the Accused alleged that the ITOs were insufficient to support the requests for those warrants.BACKGROUND[4] The charge arose from an incident which occurred on October 3, 2015. The Crown alleged that just before midnight on October 3, 2015, a masked man entered the Captain’s Quarters, which is a bar in St.John’s.

The masked man allegedly demanded money, at gunpoint, from the bartender. Mr. Lawrence Wellman, a bystander and a bar patron, attempted to intervene. The Crown alleged that in the course of thatintervention the masked man shot and killed Mr. Wellman.

Some of the circumstances surrounding the alleged offence were captured on video and audio footage from the CCTV videos retrieved from the Captain’sQuarters. [5] The police subsequently obtained three search warrants: a search warrant for the Accused’s residence; a general warrant to seize his clothing; and a DNA warrant.[6] According to the Crown, the execution of the warrants led to the discovery of evidence which included the alleged murder weapon, as well as sneakers which allegedly had DNA matching that of the Accusedand Mr. Wellman. [7] One of the main issues for trial was identity.

Specifically, whether the Accused was the perpetrator of the offence.POSITION OF THE DEFENCE[8] The Defence took the position that the search warrants were invalid, and that all evidence seized under the warrants should be excluded from the trial. The grounds for the Charter application were described atpages 2 and 3 in the application filed by the Defence, as follows:“The Applicant seeks an order that the search warrant to search his residence at 30 Quidi Vidi, St.

John’s, NL on October 10, 2015, the simultaneous general warrant to detain him and seize items from his person onOctober 10, 2015 based on an identical Information to Obtain, and the DNA warrant built upon the fruits of the search of his residence and other information contained within the original informations to obtain wereinvalid in that they: 1. Failed to provide full and frank disclosure of material facts, certain key facts being materially incorrect and misrepresented to the point of possible fraudulent presentation in the

summary of evidence providedpersonally by the affiant, in particular, the video surveillance showing the events of the night of October 3, 2015 at the Captain’s Quarters Hotel. 2. Included irrelevant information unrelated to the offense in question which was prejudicial to the applicant and should not have been included in the Information to Obtain. 3. Failed to provide full and frank disclosure of the strength and source of the knowledge of Source A, or in the alternative, presented same in a confusing or misleading manner. 4.

Failed to disclose reasonable and probable grounds overall, in particular, but not limited to, by providing no source of the knowledge of Source A, the crucial confidential informant in the Information to Obtain, andby failing to disclose the criminal record of Source A, same being redacted in the Information to Obtain provided to the Applicant, and same at this point remaining so pending a determination by the Crown if they wish toevoke Step 6 of the Garofoli procedure. And: 5.

That the searches of the Applicant’s residence and related searches of his person were therefore warrantless, therefore prima facie unreasonable and the Applicant seeks an order that all evidence seized from hishome and person or otherwise flowing from these searches be excluded under s. 24 of the Charter as a remedy for breach of s. 8 of the Charter of Rights and Freedoms, the right to be free of unreasonable search andseizure.”THE POSITION OF THE CROWN[9] The Crown sought dismissal of the application. The Crown submitted that the ITOs, in their redacted form, were sufficient to support issuance of the warrants.

EVIDENCE AT THE CHARTER HEARING[10] Several consent exhibits were submitted in evidence at the hearing of the Charter application, including: the redacted ITOs supporting the three warrants; surveillance photos; the CCTV video footage (withaudio) from the Captain’s Quarters; still images of the video; and various photographs.[11] Further, cross-examination of the affiant of the ITOs, Constable Jordan McEntegart, was permitted with limited scope.

Included in this decision are the Court’s reasons for permitting such cross-examination.[12] The ITOs had been redacted for the purpose of protecting the identity of confidential informers. For the most part the ITOs filed in support of the warrant to search the Accused’s residence, and the generalwarrant, were the same. The ITO for the DNA warrant was expanded, and included references to the “fruits” of the other searches and the investigation. As a result, throughout this decision, the word “ITOs” hereinafterrefers to the ITOs filed in support of the warrant to search the residence, and the general warrant.

If it becomes necessary to refer to the ITO filed in support of the DNA warrant, then it shall be expressly identified as such.ANALYSIS: Request to Cross-Examine the Affiant of the ITOs[13] The Defence sought to cross-examine the affiant of the ITOs, Constable McEntegart, respecting some of the comments he made in the ITOs, which Defence Counsel submitted were relevant to the issue of thevalidity of the warrants, and to the admissibility of the evidence gained from the execution of the warrants. [14] In R. v.

Garofoli, (SCC), [1990] 2 S.C.R. 1421 the Supreme Court of Canada indicated that leave had to be obtained to cross-examine an affiant of an ITO; and leave should be granted if such isnecessary to enable an accused to make full answer and defence. Further, if leave is granted, then the trial judge may limit the scope of the cross-examination. This was stated in Garofoli, at paragraphs 88 and 89, asfollows:88 With respect to prolixity, I am in favour of placing reasonable limitations on the cross-examination. Leave must be obtained to cross-examine.

The granting of leave must be left to the exercise of the discretion ofthe trial judge. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence.

A basis must be shown by the accused for the view thatthe cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as, for example, the existence of reasonable and probable grounds. 89 When permitted, the cross-examination should be limited by the trial judge to questions that are directed to establishing that there was no basis upon which the authorization could have been granted. The discretionof the trial judge should not be interfered with on appeal except in cases in which it has not been judicially exercised.

While leave to cross-examine is not the general rule, it is justified in these circumstances in order toprevent an abuse of what is essentially a ruling on the admissibility of evidence.[15] The Garofoli leave requirement was further examined by the Supreme Court of Canada in the case of R. v. Pires; R. v.

Lising, 2005 SCC 66 (hereinafter referred to as “Pires”), and they explained that thethreshold test for leave to cross-examine is not an onerous one (see paragraphs 40 to 44 of Pires). [16] Further, the Supreme Court of Canada stated at paragraph 40 of Pires that “in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focussed on thequestion to be determined on a Garofoli review – whether there is a basis upon which the authorizing judge could grant the order”.

Also, at paragraph 40 they stated that there need only be a “reasonable likelihood” thatthe proposed cross-examination will assist the court in determining a material issue. [17] In this case, the Defence sought to cross-examine the affiant for the purpose of challenging the affiant’s credibility, and particularly with respect to certain statements made by the affiant.

On this point, I refer toparagraph 68 of Pires, where the Supreme Court of Canada stated, as follows: 68 The appellants contend however that the impugned statement brought Detective Richards' own credibility into question and that cross-examination was necessary to explore this further. There is no doubt that theaffiant's own credibility may be material on a Garofoli hearing. Indeed, if the officer reported a certain result in the face of a contrary conclusion by the polygraph examiner, one would hope that cross-examination wouldbe permitted.

However, as the material reveals in this case, the proposed cross-examination, at best, could reveal that Detective Richards overstated the potential value of the polygraph results. On this point, I agree withthe following opinion expressed by Finch C.J.A. (para. 83): In my view, the appellants have not met this threshold. At most, the appellants have shown a basis to believe that cross-examination will elicit testimony that tends to discredit Detective Richards' credibility on theperipheral matter of the polygraph examination results. This, however, is insufficient.

The appellants have not shown any basis to conclude that cross-examination will tend to impugn Detective Richards' credibility on anyof the statements in his affidavit that form the essential basis for issuing the authorization. Nor does the misleading statement in para. 11 create any reasonable possibility that cross-examination of Detective Richardswould elicit testimony that casts so much doubt on his credibility that the reliability of his entire affidavit would be tainted. Accordingly, and unlike Garofoli, supra, the misleading statement in para. 11 does not go to thefoundation of the authorization.

It is, rather, as in Vukelich, supra, unrelated to "the essence of the case".[18] Based on the foregoing excerpt, cross-examination would be permissible if it may adduce evidence impacting the credibility of the affiant’s statements in the ITOs which “form the essential basis for issuing theauthorization”; or if there is a reasonable likelihood the cross-examination would “elicit testimony that casts so much doubt on his credibility that the reliability of his entire affidavit would be tainted”.[19] Further, in accordance with the Pires decision, leave cannot be denied on the basis that other parts of an ITO would support issuance of the warrants.

On this point I refer to paragraph 69 of the Pires decision, asfollows:69 Although the likely effect of the proposed cross-examination must be assessed in light of the affidavit as a whole, I also agree with Finch C.J.A. that the threshold test for determining whether cross-examination

should be allowed is separate and distinct from the ultimate question of whether the authorization is valid. Hence, in determining whether the threshold test has been met, the trial judge cannot decide the question simplyon the basis that other parts of the affidavit would support the authorization. The focus, rather, must be on the likely effect of the proposed cross-examination and on whether there is a reasonable likelihood that it willundermine the basis of the authorization.

If the test is met, it is only at the conclusion of the voir dire that the trial judge will determine whether, on the basis of the amplified record, there still remains a basis for theauthorization. However, the trial judge's apparent collapse of the two tests is of no moment in this case. Having correctly refused leave to cross-examine, the next step was to determine the authorization's validity on thebasis of the material before him. The fact that he proceeded to do so without considering para. 11 is of no consequence to the appellants.

I therefore see no reason to interfere with the trial judge's ruling.[20] After considering Garofoli and Pires, I concluded that cross-examination of Constable McEntegart was necessary in order for the Accused to make full answer and defence. Such would be permitted in a limitedscope.

Specifically, cross- examination was permitted with respect to certain of his statements in the ITOs in order to ascertain whether such statements were misleading; and, if so, whether the statements could possibly bemisleading to the extent that the credibility of Constable McEntegart would be in doubt such that the “reliability of his entire affidavit would be tainted”, or the “essential basis for issuing” the warrants would beundermined, (Pires, paragraph 68).

As a result, cross-examination was allowed with respect to three areas that were potentially misleading in this regard. [21] To elaborate, there were statements by the affiant in the ITOs relevant to the material issue of identity. The Court accepted the Defence position that there were certain of these statements that may have beenmisleading on the issue of identity, which, in turn, formed the basis for issuing the warrants.

Further, these statements could impact the credibility and reliability of Constable McEntegart’s ITOs. [22] One area of concern was the affiant’s claim in the ITOs that the perpetrator was wearing blue faded jeans, and that the Accused was subsequently photographed in similar jeans. As Defence counsel submitted,the colour of the perpetrator’s jeans is unclear in the video. [23] A second area of concern was with respect to the affiant’s comments regarding a “tuque”. Specifically, a tuque which had been found outside, close to the Captain’s Quarters, and which appeared bright royalblue in photos.

In the ITOs, the affiant said that the perpetrator in the video wears a similar coloured tuque. As submitted by the Defence, it is unclear how the affiant determined that the tuque worn by the perpetrator inthe video was similarly coloured to that depicted in the photos.[24] Finally, the affiant in the ITOs referred to surveillance information revealing that the Accused had worn black and red high top Air Jordan sneakers. In the ITOs, the affiant suggested that he could see red on thesole of the perpetrator’s sneakers in the video.

However, the colour red was not at all evident in the video.[25] In effect, the affiant’s comments in the ITOs on the jeans, tuque and sneakers seemed to possibly contradict that which is portrayed in the video and photos. In my view, there was a reasonable likelihood thatcross-examination would assist in determining whether such purported contradictions impacted the affiant’s credibility.

The affiant’s comments in the ITOs with respect to the jeans, tuque and sneakers do relate to thematerial issue of identity, and whether there were reasonable and probable grounds for issuance of the warrants. [26] For these reasons, leave was granted to the Defence to conduct cross- examination of the affiant of the ITOs limited to questions pertaining to the jeans, the tuque and the sneakers depicted in the photos in theconsent exhibits, the video exhibits, and as referenced in the ITOs.

In accordance with Garofoli, cross-examination was to be limited to questions directed to establishing that there was no basis upon which the warrantscould have issued. [27] For clarity, before deciding to grant leave to cross-examine on a limited basis, I considered the submissions of all Counsel, and I considered whether there were other areas of cross-examination that should bepermitted to assist the Court in the determination of the validity of the authorizations. The Defence had requested a much broader scope of cross-examination than what was granted.

I concluded that cross-examinationwas only necessary in the three areas described, being the affiant’s comments with respect to the jeans, the sneakers and the tuque.[28] Cross-examination accordingly proceeded. The relevant evidence adduced in cross-examination shall be referenced in the analysis of the sufficiency of the ITOs.ANALYSIS: The challenge to the sufficiency of the ITOs –

Summary of the Law[29] As stated, the Defence alleged a breach of

section 8 of the Charter.

Section 8 of the Charter states that everyone has the right to be secure against unreasonable search and seizure.[30] In R. v. Collins, (SCC), [1987] 1 S.C.R. 265, at paragraph 23, the Supreme Court of Canada stated that a search is reasonable “if it is authorized by law, if the law itself is reasonable and if themanner in which the search is carried out is reasonable”.[31] A search conducted pursuant to a warrant is authorized by law.[32] The warrants issued in this matter were presumed valid; the Defence had the onus of displacing this presumption (see R. v.

Campbell, 2010 ONCA 588 at paragraph 45; affirmed 2011 SCC 32). As stated, theDefence alleged that the warrants were not valid because the ITOs were not sufficient to support the issuance of the warrants.[33] If the warrants were to be invalidated, then the onus would shift to the Crown to establish that the warrantless searches were reasonable (see R. v.

Collins, at paragraph 22).[34] An ITO filed in support of a request for a search warrant must establish the statutory standard of “reasonable grounds to believe” that an offence has been committed, and that evidence will be found at the placeproposed to be searched. This was clearly stated in R. v. Sadikov, 2014 ONCA 72, at paragraph 81, as follows:81 The statutory standard - "reasonable grounds to believe" - does not require proof on the balance of probabilities, much less proof beyond a reasonable doubt. The statutory and constitutional standard is one ofcredibly-based probability: Hunter v.

Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 167; and R. v. Law, 2002 BCCA 594, 171 C.C.C. (3d) 219, at para. 7. The ITO must establish reasonable grounds tobelieve that an offence has been committed and that there is evidence to be found at the place of the proposed search: Hunter, at p. 168. If the inferences of criminal conduct and recovery of evidence are reasonable on thefacts disclosed in the ITO, the warrant could be issued: R. v. Jacobson (2006), (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22.[35] Further, as noted in Sadikov, in Hunter v.

Southam, (SCC), [1984] 2 S.C.R. 145, at page 167, the Supreme Court of Canada indicated that reasonable grounds to believe exist when “credibly-based probability replaces suspicion”.[36] In R. v. Parsley, 2016 NLCA 51, the statutory standard was described as consisting of both a subjective prong and an objective prong. At paragraph 10 the Court of Appeal stated this, as follows:10 The reasonable grounds standard set out in R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, 53 C.C.C. (3d) 316 (S.C.C.) applies to determining whether the grounds set out in an ITO are sufficient toissue a search warrant.

That standard composes both a subjective prong and an objective prong. In practice, that means that the officer swearing the ITO must have a subjective belief that on the basis of the stated grounds,the search requested will yield evidence respecting the commission of an offence and also that objective assessment of the grounds justifies issuance of the warrant. The test is the same for determining grounds for arrest,although the objective component has been applied in a less exacting manner in reviewing grounds for arrest than in reviewing the issuance of an ITO (R. v.

Golub (1997), (ON CA), 34 O.R. (3d) 743(Ont. C.A.) at 750).[37] When reviewing errors in ITOs, it is an affiant’s reasonable belief which is relevant, not the “ultimate truth”. This was recently stated by the Supreme Court of Canada in World Bank Group v. Wallace, 2016 SCC15, at paragraph 122 as follows:122 Smart J.'s comments apply equally to a Garofoli application (see R. v. McKinnon, 2013 BCSC 2212, at para. 12 ; see also Grant, at p. 251; R. v.

Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 40-42).They accord with this Court's observation in Pires that an error or omission is not relevant on a Garofoli application if the affiant could not reasonably have known of it (para. 41). Testing the affidavit against the ultimatetruth rather than the affiant's reasonable belief would turn a Garofoli hearing into a trial of every allegation in the affidavit, something this Court has long sought to prevent (Pires, at para. 30; see also R. v.

Ebanks, 2009ONCA 851, 97 O.R. (3d) 721, at para. 21).[38] Further, a judge considering the validity of a search warrant must only determine if the authorizing judge “could” have granted the warrant. A reviewing judge does not substitute her opinion. In R. v. Garofoli,Justice Sopinka clearly stated this at paragraph 56, as follows:56 The reviewing judge does not substitute his or her view for that of the authorizing judge.

If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludesthat the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, ratherthan being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.[39] The Supreme Court of Canada summarized the review process in R. v.

Morelli, 2010 SCC 8 , [2010] 1 S.C.R. 253, where they stated at paragraphs 39 to 41, as follows:39 Under the Charter, before a search can be conducted, the police must provide "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to befound at the place of the search" (Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, at p. 168).

These distinct and cumulative requirements together form part of the "minimum standard, consistent withs. 8 of the Charter, for authorizing search and seizure" (p. 168). 40 In reviewing the sufficiency of a warrant application, however, "the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have [page272]issued" (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original)).

The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credibleand reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place. 41 The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, "the reviewing court must exclude erroneous information" included in theoriginal ITO (Araujo, at para. 58).

Furthermore, the reviewing court may have reference to "amplification" evidence -- that is, additional evidence presented at the voir dire to correct minor errors in the ITO -- so long asthis additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.[40] Applying Morelli, it was necessary in this case to determine if there was sufficient credible and reliable evidence in the ITOs to permit the issuing judge to find reasonable and probable grounds to believe that theAccused committed the offence, and that evidence of the offence would be found pursuant to the manner of search proposed.

In doing so, according to Morelli, erroneous information is to be excised from the ITOs. Further, “amplification evidence” may be considered for the purpose of correcting minor errors made in good faith. [41] If errors in the ITOs were not made in good faith, amplification is not permitted after excising the erroneous information (see R. v. Araujo, 2000 SCC 65 at paragraph 57). [42] If there was a deliberate attempt to mislead by an affiant of an ITO, then a warrant may be set aside, particularly if the affiant’s conduct may be considered subversive. This was pointed out by Justice Watt in R.v.

Paryniuk, 2017 ONCA 87, where he stated, as follows, at paragraph 62:62 In this province, courts, including this court, appear to have recognized a discretion to set aside a warrant, despite the presence of reasonable and probable grounds for its issuance, where non-disclosure was forsome improper motive or to mislead the issuing judicial officer: R. v. Colbourne, (ON CA), [2001] O.J. No, 3620, 157 C.C.C. (3d) 273 (C.A.), at para. 40.

Where an affiant has been shown to havedeliberately provided false material statements, or to have deliberately omitted material facts from an ITO, with the intention of misleading the issuing judicial officer, the warrant may be set aside. But the threshold forsetting aside the warrant in these circumstances is high: Lahaie v. Canada (Attorney General) (2010), 101 O.R. (3d) 241, [2010] O.J. No. 3100, 2010 ONCA 516, at para. 40, leave to appeal to S.C.C. refused [2010]S.C.C.A. No. 371.

In at least one brief endorsement, this court has described the conduct necessary to engage [page336] this discretion as "so subversive of the search warrant process as to, in effect, amount to an abuse of

process and require that the warrant be quashed": R. v. Vivar, [2009] O.J. No. 2126, 2009 ONCA 433, at para. 2. See, also, R. v. Evans, [2014] M.J. No. 129, 2014 MBCA 44, 306 Man.

R. (2d) 9, at paras. 17, 19.[43] Further, at paragraph 66 of Paryniuk, Justice Watt also stated that he agreed “a trial judge has a residual discretion to set aside a properly issued search warrant or authorization where the judge is satisfied that theconduct of the police has been subversive of the pre-authorization process leading to the issuance of the search authority”.[44] For clarity, I add that fraudulent errors, in and of themselves, do not automatically invalidate a warrant; see R. v. Bisson, [1990] 2 S.C.R. 142, at paragraph 2.

Rather, a contextual analysis, and the totality of thecircumstances is to be considered when determining if a warrant is to be set aside due to subversive conduct. I conclude this based on the following excerpt from R. v. Araujo, at paragraph 54 (which, in turn, referred to R.v. Morris (1998), 1998 NSCA 229 , 134 C.C.C. (3d) 539 (N.S.C.A.)), as follows:54 The authorities stress the importance of a contextual analysis.

The Nova Scotia Court of Appeal, while reviewing the cases from our Court cited above, explains this in a judgment dealing with problems arising outof errors committed in good faith by the police in the material submitted to the authorizing justice of the peace. These cases stress that errors, even fraudulent errors, do not automatically invalidate the warrant. This does not mean that errors, particularly deliberate ones, are irrelevant in the review process. While not leading to automatic vitiation of the warrant, there remains the need to protect the prior authorization process.

Thecases just referred to do not foreclose a reviewing judge, in appropriate circumstances, from concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive ofthat process that the resulting warrant must be set aside to protect the process and the preventive function it serves. [Emphasis added.] (R. v.

Morris (1998), 1998 NSCA 229 , 134 C.C.C. (3d) 539 (N.S.C.A.), at p. 553.) An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems.

Again, the test iswhether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been grantedat all by the authorizing judge.[45] Further, as stated by Defence Counsel, all material facts, favourable or not, must be presented by a police officer when swearing an ITO.

This necessity of full and frank disclosure was referred to in Morelli, atparagraph 58, as follows:58 In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosure to the justice. When seeking an ex parte authorization such as a search warrant, apolice officer -- indeed, any informant -- must be particularly careful not to "pick and choose" among the relevant facts in order to achieve the desired outcome. The informant's obligation is to present all material facts,favourable or not.

Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure.

This means that an attesting officer must avoid incomplete recitationsof known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.[46] As well, at paragraph 60 of Morelli, the Supreme Court of Canada stated that amplification evidence at a voir dire can be used to fill in gaps in an original ITO, if there has not been full and frank disclosure ofmaterial facts.[47] I add that a judicial authorization may be invalidated by a material misrepresentation, or a material nondisclosure: R. v.

Browne, 2012 ONSC 3942, at paragraph 86.[48] Finally, in accordance with Garofoli, if the Crown can support the issuance of the warrants on the basis of the redacted ITOs, then the search warrants are to be confirmed. However, in the event that the warrantscould not be supported on the basis of the redacted ITOs, then the Crown can choose to apply to have the Court consider the redacted information. This is in accordance with step 6 of the procedure of Garofoli, which isdescribed at paragraph 79 of R. v. Garofoli, as follows:79 … 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 trialjudge 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 excisedmaterial 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 withdrawtender of the wiretap evidence.[49] In this matter, the Crown and Defence Counsel agreed that the Crown need not elect to invoke step 6 of the Garofoli procedure, unless the Court first made a ruling that the ITOs, in their redacted versions, wereinsufficient to support issuance of the warrants.

ANALYSIS: Were the ITOs sufficient?[50] As submitted by the Crown, the Defence challenged the redacted ITOs in four areas, which were described by the Crown as: (

i) the alleged misrepresentations in the ITOs when describing the video; (ii) thealleged unreliability of source “A”; (iii) the inclusion of allegedly prejudicial material; and (iv) other concerns raised by the Defence.(

i) The alleged misrepresentations in the ITOs when describing the video[51] The Defence suggested that in the ITOs, Constable McEntegart misled the issuing justice by misstating, or over-stating, the contents of the video; and by misrepresenting the contents of the video in a manner,and for the purpose of, increasing the likelihood of getting the search warrants issued.

The Defence specifically cited the affiant in the ITOs referring to the incident as a “shooting”; and the affiant’s comments in the ITOson the height, complexion and hair of the perpetrator, the white markings on the perpetrator’s jacket, the perpetrator’s jeans, the perpetrator’s tuque, and the perpetrator’s sneakers.The reference to a shooting[52] In the ITOs, the affiant described the perpetrator “shooting” the victim. The Defence took issue with the characterization of the video as depicting a shooting. [53] Rather, the Defence suggested that the video depicted a robbery, and resistance to the robbery by Mr.

Wellman. Specifically, the Defence submitted that the video depicts the firearm, which had been held by theperpetrator, being struck with an object simultaneous with the discharge of the weapon. Mr. Wellman was hit when the weapon discharged. In essence, the Defence therefore suggested that the reference to a “shooting”was misleading as such precluded consideration of the possibility of anything other than intentional discharge of the weapon.[54] On this point, the Crown noted that the affiant accurately described the video, at paragraph 76(

l) of the ITOs, as follows:76(1) Larry then picks up a small table and throws it at the suspect; he is approximately 3-4 feet away from him. Larry then, almost in the same motion, picks up a stool in his left hand and pulls his arm back to throw it,and there is a loud bang, at which point, Larry gets thrown backwards approximately 6 feet and begins bleeding profusely on the floor.”[55] Further, the Crown submitted that in the ITOs, there is a reference to an eyewitness’ interview in which the eyewitness described Mr.

Wellman as having been “shot” (paragraph 13 of the ITOs). [56] A review of the video leads to the conclusion that what actually happened at the point of discharge is not readily discernible on the video. Specifically, whether Mr. Wellman was intentionally “shot” by thegunman, or whether the discharge of the gun was accidental, or otherwise, is not clearly visually portrayed in the video.

Indeed, there was reference in the ITOs to another eyewitness interview which implicitly suggestedthe possibility of accidental discharge (paragraph 17 of the ITOs).[57] Having said that, however, based on the contents of the ITOs and the video, I find the affiant could indeed have reasonably interpreted, and described, the incident as having been a “shooting”. It is one of thepossible

interpretations of the video footage.[58] Alternatively, the affiant could have stated that what happened at the point of discharge was not clearly visually portrayed in the video. However, even though there were alternative ways the affiant could havedescribed the incident portrayed in the video, I find that his description of a “shooting” was not an attempt by the affiant to cherry pick words to enhance the likelihood of obtaining the warrant. Rather, the full informationdescribing the incident was before the issuing judge. As stated, the affiant’s description of a “shooting” was one of the possible reasonable

interpretations of the contents of the video, and the information before theaffiant.[59] I therefore concluded that the affiant’s description of the incident was not a misrepresentation by the affiant, nor was it an attempt to mislead.The height, complexion and hair of the masked gunman[60] The Defence took issue with the affiant describing the perpetrator in the video as tall. The Defence also took issue with the affiant referring to the video as depicting the perpetrator as having a fair complexion atthe neck and hands. The Defence submitted that such a description is very generic.

The Defence further submitted that comments on the perpetrator’s hair, including hair length, should be considered in light of the factthat the perpetrator had a full mask.[61] As submitted by the Crown, and upon considering the contents of the video, I accepted that these descriptions by the affiant were reasonable, and cannot be characterized as misrepresentations. I agree that thegeneric reference to the perpetrator being tall is not of particular assistance to the issuing judge.

However, it is not an unreasonable comment, and it would be recognized by the issuing judge as a generic comment.[62] While the comments on the perpetrator’s complexion were also generic, these were also supported by the reference in the ITOs to notes of an interview with an eyewitness, who described the gunman as “white”or “light skinned” (paragraph 17 of the ITOs). [63] Further, it was established at the hearing that the affiant’s comments on the perpetrator’s hair were reasonable, again based on the contents of the video.The white markings on the jacket[64] The Defence submitted that the affiant’s reference to white markings being visible on the jacket of the perpetrator in the video, and the affiant comparing the jacket to a “North Face” jacket, was anoverstatement.

[ 65 ] On this point, I again agree with the Crown’s submission that this is not an overstatement, misrepresentation, error or misleading in any manner. Rather, the video confirmed the visible presence of white markings on the perpetrator’s jacket, as was referenced by the affiant at paragraph 20(

c) of the ITOs. Further, based on the information relayed in the ITOs, it was not unreasonable for the affiant to compare the perpetrator’s jacket to a North Face jacket. The affiant referred to information from an interview described in the ITOs which implicitly suggested that the perpetrator possibly wore a North Face jacket (paragraph 72(ee) of the ITOs). The affiant also referred to another officer checking jackets in a store, and confirming that the style of the Accused’s jacket was similar to a North Face jacket (Schedule B, at paragraph 1(f)).

The jeans [ 66 ] As submitted by the Defence, the affiant in the ITOs claimed that the perpetrator in the video was wearing medium blue faded jeans. The affiant stated in the ITOs that the Accused was subsequently seen, and photographed during surveillance, in a “similar style of faded jeans”. [ 67 ] The Defence submitted that the jeans of the perpetrator in the video were of an uncertain faded colour, and a slim fit, whereas the Accused was photographed in blue faded jeans, which were baggy. [ 68 ] As noted, cross-examination of Constable McEntegart was permitted with respect to his comments on the jeans.

The surveillance photos and video were referred to Constable McEntegart during his cross- examination. He confirmed and explained his view that the jeans appear blue to him in the video, and he remained of the view that the jeans were similar to those depicted in the surveillance photos. [ 69 ] Considering the contents of the video, the surveillance photos, the evidence adduced in cross-examination, and the submissions of Counsel, I find that the comments of Constable McEntegart in the ITOs regarding the jeans are fair and reasonable.

Although I agree that the colour of the perpetrator’s jeans is not readily discernible in the video, I accept the affiant’s evidence regarding how he reached this conclusion that they were blue. I accept that he believed this to be true. Further, I agree with his representation of the jeans in the video and the photos as being a faded style of jeans. [ 70 ] His comments in the ITOs that the jeans “appear to be a medium faded blue colour” (paragraph 76(

a) of the ITOs) are not misleading, and cannot be considered a misrepresentation. The most that could be said is that the colour blue is not readily discernible in the video, and this was a minor overstatement made in good faith. This is remedied by excising the affiant’s reference in the ITOs to the jeans appearing to be “blue” in the video. Amplification would, at most, clarify that the colour of the jeans is not readily discernible in the video. The bright royal blue tuque [ 71 ] In the ITOs (at paragraph 1(

h) of

Schedule B), the affiant described the perpetrator in the video footage as wearing “a blue tuque as a mask with eye holes cut out”. The affiant said in the ITOs that he differentiated the blue colour of the tuque in the video by comparing it to the perpetrator’s black jacket. He also says a “similar colored tuque with two eye holes cut out was discovered by Constable Lisa Anderson the next morning…”.

This tuque was discovered outside, in the vicinity of the crime scene, and “and along the likely route of the perpetrator” (Schedule B of the ITOs, at paragraph 1(h)). [ 72 ] The Defence referred to the photos of the blue tuque found by Constable Anderson. The tuque in the photos appears to be a bright royal blue colour.

While the video does indeed depict, in parts, a contrasting colour between the perpetrator’s jacket and the perpetrator’s hat, the colour of bright royal blue is not at all discernible in the video. [ 73 ] Cross-examination of Constable McEntegart was permitted in relation to his comments on the tuque in the ITOs. Specifically, in cross-examination, Constable McEntegart was questioned on his reference in the ITOs to a “similar colored” tuque.

He explained, as he did in the ITOs, that he discerned the colour blue in the tuque worn by the perpetrator in the video, due to the visible contrasting colour with the jacket. The jacket appears black in the video. His evidence was that he saw a shade of blue in the tuque portrayed in the video. He discerned the colour blue based on what he perceived to be the best camera angle, and shot of the tuque.

Further, his evidence was that he never saw Constable Anderson’s photo, but he knew that she had described the hat as blue. [ 74 ] As stated, the royal blue colour depicted in the photo of the tuque found by Constable Anderson cannot, in my view, be discerned in the video. The tuque worn by the perpetrator in the video appears dark in colour. However, based on the evidence, including the evidence from cross-examination, I am satisfied it was indeed fair for Constable McEntegart to assert in the ITOs that the tuque in the video was a “similar colour” to the tuque discovered by Constable Anderson.

He believed the hat worn by the perpetrator was blue, and he gave a reasonable explanation of how he reached that conclusion. [ 75 ] Further, Constable McEntegart did not say in the ITOs that the blue colour of the tuque seen in the video was the “same blue” as that of the tuque described by Constable Anderson. He couldn’t because, as stated, his evidence was he did not see the photo of the tuque prior to his swearing the ITOs. Rather, he relied on Constable Anderson’s notes; and blue is blue. Officers can rely on other officers’ notes while preparing an ITO (see R. v.

Paryniuk , at paragraph 77 , and World Bank Group v. Wallace , at paragraph 123 ). In this case, the affiant reviewed Constable Anderson’s continuation report. Constable McEntegart’s description was therefore fair and reasonable based on his belief and information at the time he swore the ITOs. [ 76 ] I therefore find that there was no attempt by Constable McEntegart to mislead the issuing judge with respect to the description of the colour of the tuque. At most, the reference to the tuque being similarly coloured could be considered a good faith error.

As such, I will consider the ITOs to be excised of any references to the tuque in the video being “similarly colored” to the tuque found near the Captain’s Quarters.

Amplification would, at most, include reference to the fact that the affiant was of the view the tuque portrayed in the video was blue; and that a tuque was found outside in the vicinity of the crime scene, with two eye holes cut out, but that Constable McEntegart had not seen the photo to compare the shade of blue. [ 77 ] Further on the tuque, the Defence commented on the fact that the tuque discovered by Constable Anderson had no mouth opening; whereas the ITOs indicate that witnesses referred to the perpetrator’s tuque as having a mouth opening. However, this was not misrepresented in the ITOs.

Rather, the reference to a mouth opening being observed by an eyewitness is contained in the ITOs (paragraph 17(i)). That information was before the issuing judge, along with the affiant’s description of the hat described in Constable Anderson’s notes. At most, the failure of the affiant to specifically refer to this contrasting information is a minor omission; and easily resolved by amplification identifying that there was eyewitness information describing a mouth opening in the perpetrator’s tuque, but there was no mouth opening in the tuque described in Constable Anderson’s notes.

The Air Jordan sneakers [ 78 ] In the ITOs, (at paragraph 69), the affiant referred to Constable Nolan’s surveillance notes, from which the affiant stated that he learned that the Accused was wearing black and red high top Air Jordan sneakers during surveillance. The affiant also referred to the surveillance photos (which were entered in evidence at the hearing) depicting the Accused wearing red and black sneakers. [ 79 ] Further, in the ITOs (at paragraph 74), the affiant referred to the investigative results from the footwear impressions found in the victim’s blood at the crime scene.

Specifically, the affiant said that the footwear impressions were sent to SICAR. He stated that after reviewing the results from SICAR, the finding was that “the footwear impression is an Air Jordan basketball brand”. The affiant also noted that the video depicted the perpetrator stepping next to the victim as the victim lay on the floor bleeding. [ 80 ] In the ITOs, the affiant suggested that he could see in the video a red colour along the sole of the perpetrator’s sneakers. For example, at paragraph 1(

f) of

Schedule “B” of the ITO, the affiant stated, as follows: 1(f). The perpetrator in the CCTV footage of the crime wore black Nike Air Jordan sneakers with red coloring along the sole. Brandon Phillips was seen in photograph wearing similar Black Nike Air Jordan sneakers with red coloring along the sole on October 8, 2015, as referred to in paragraph 70a,

Schedule “A”. (See Apendix (sic)“A”) … [ 81 ] The Defence took issue with Constable McEntegart indicating in the ITOs that he could see in the video the colour red on the soles of the sneakers of the perpetrator. The Defence conceded that it was possible the reference to the red colour was as a result of a video artifact. In any event, the Crown conceded, and I agree, that the red on the soles of the sneakers of the perpetrator is not, by any means, readily apparent in the video. [ 82 ] Cross-examination on this issue was permitted.

After considering the evidence from the cross-examination of Constable McEntegart, I concluded that the representation of the colour “red” being visible on the sneakers of the perpetrator was a clear error, and a misrepresentation. However, I am satisfied it was neither a fraudulent misrepresentation, nor was it an attempt to mislead. Further, I am satisfied that it is not a material misrepresentation. [ 83 ] To elaborate, in cross-examination, Constable McEntegart pointed out to the Court the part of the video footage where he discerned the colour red to be on the soles of the perpetrator’s sneakers.

I was not satisfied with his evidence, as I still could not discern in the video any prospect of the colour red being on the perpetrator’s sneakers. Although I could not see the red in the video, I was satisfied that Constable McEntegart honestly believed that he saw the colour red in the video. [ 84 ] Further, as stated, while this error is a misrepresentation, it is neither material nor deliberate.

What is material is that the SICAR report identified the brand of sneakers from a bloody footprint, and that brand is what the Accused was seen wearing when photographed. [ 85 ] Again, the error can be dealt with by excising from the redacted ITOs any reference to the colour red being on the perpetrator’s sneakers.

The amplification would be a reference in the ITOs to the fact that the colour red on the perpetrator’s sneakers is not discernible in the video; whereas the colour red is discernible in the surveillance photos. (ii) The alleged unreliability of Source “A” [ 86 ] The Defence position was that the redacted form of the ITOs did not contain sufficient information to allow the Court to assess the reliability of the allegations attributable to one of the confidential informants referred to in the ITOs as Source “A”.

The Defence submitted that Source A is the most important source, as the warrants would not have issued without Source A’s purported voice identification of the Accused, from the video. [ 87 ] In the ITOs, portions are redacted in relation to Source A. As well, there was an appendix, or

Schedule “D”, attached to the ITOs which contained information on the confidential sources but which had been either fully redacted, or torn away. That redacted, or torn away, information was provided to the issuing judge, but it was not before the Court at the Charter hearing. [ 88 ] As already stated, at this stage of the Garofoli application, the redacted versions of the ITOs were to be assessed for sufficiency. Counsel agreed that if there was to be a ruling by the Court that the redacted ITOs were not sufficient, only then would the Crown determine if a step 6 Garofoli procedure would be requested.

It was therefore necessary for the Court to first determine whether the ITOs, in their redacted form, provided sufficient information to assess the reliability of Source A. [ 89 ] In the redacted ITOs, the information on Source A’s qualifications is portrayed at paragraph 8, as follows: SOURCE QUALIFICATIONS 8. a. Source “A” . This

Schedule is based, in part, on information received from a confidential Police source (Source “A”). I had a conversation with Constable Scott Haye, a member of the RNC Criminal Intelligence Unit, on October 6, 2015, at which time he confirmed the following: I. Constable Scott Haye (Constable Haye), a member of the RNC Criminal Intelligence Unit (CIU) has found Source “A” to be a reliable source. The Source is an admitted user of controlled drugs and substances which affords the Source the opportunity to gather information on the illicit drug trade.

II. Source “A” has been spoken to by Constable Haye on a weekly basis regarding Controlled Drugs and Substances Act and Criminal Code matters. Constable Haye has utilized Source “A” between two and threeyears and was previously utilized by other members of the RNC for one year prior to speaking with Constable Haye. III. The Source provides information/intelligence on an ongoing and regular basis regarding criminal activity in St. John’s, NL. Source “A” provides information/intelligence which is consistent with informationprovided by other coded sources the police utilize on a regular basis. IV.

Source “A” has been paid between 10 and 15 occasions which have led to the arrest and convictions of between 10 and 15 individuals relating to Criminal Code and/or Controlled Drugs and Substances Actoffences. V.

Source “A” has a criminal record ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________[90] The Defence submitted that Source A’s information consisted of a bald conclusory statement respecting identification of Brandon Phillips’ voice from the video.

The Defence further submitted that Source A hasa criminal record, but the redacted ITOs did not indicate if this criminal record included crimes of dishonesty.

Further, nothing in the ITOs indicated Source A’s motivation, or if Source A received any money; and nothingindicates Source A’s source of knowledge. [91] As well, the Defence submitted that the reference in the ITOs to the number of times Source A provided information is imprecise, as such is referenced as being between “10 and 15 occasions”.[92] The Defence also suggested that Source A’s information must be considered in light of the fact that the ITOs indicate other people were identified from other sources as potential suspects; and that the ITOssuggest known criminals had been intimidating the Accused and his girlfriend.[93] When conducting reliability assessments of a confidential source, R. v.

Debot, (SCC), [1989] 2 S.C.R. 1140 requires the Court to assess the compelling nature of the information provided, thecredibility of the source, and the extent of corroboration of that information. The Supreme Court of Canada stated this at paragraph 53 in Debot, as follows:53 In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offencecompelling?

Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to makingthe decision to conduct the search? I do not suggest that each of these factors forms a separate test.

Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness.Weaknesses in one area may, to some extent, be compensated by strengths in the other two.[94] According to Debot, it is the “totality of the circumstances” which must be considered when assessing the reliability of the information from Source A in this case. It is worth repeating that Justice Wilson statedthat: “Weaknesses in one area may, to some extent, be compensated by strengths in the other two”.

Before conducting the Debot assessment in this matter, I will briefly refer to some of the other case authorities thatprovided guidance in this analysis.[95] In R. v. Plant, (SCC), [1993] 3 S.C.R. 281, the Supreme Court of Canada applied the Debot criteria and determined that even if it is impossible to assess the credibility of an informant, theinformation may be deemed reliable due to the extent of corroboration and the compelling nature of a tip. At paragraph 28, they stated this, as follows:28 In R. v.

Debot, (SCC), [1989] 2 S.C.R. 1140, at p. 1168, this Court determined that the reliability of the tip of an informant depends on an assessment of the totality of the circumstances andspecified three areas of concern: First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally,was the information corroborated by police investigation prior to making the decision to conduct the search?

While that case related to the decision of the police to conduct a warrantless search pursuant to the tip of a known informant, the factors enunciated demonstrate principled concerns with the use of informants in generaland are equally applicable to the anonymous tip in the case at bar. The information given by the anonymous informant was compelling in that it identified the location of the cultivation operation and located the appellant'shouse in a fairly specific geographic region, albeit without specifying an exact street address.

It is impossible to determine whether the source was credible except by reference to the fact that the information wassubsequently corroborated by a police reconnaissance which resulted in identification of the exact address of the residence described by the informant. The tip itself, therefore, was compelling enough in its specification ofthe place in which [page298] the offence was occurring for the police to readily locate the exact address of the appellant's residence and corroborate the report of the informant.

I conclude that the anonymous tip, althoughmade by an unknown informant, was sufficiently reliable to have formed part of the reasonable grounds asserted in the information to obtain the warrant. Therefore, I would not excise that piece of evidence from thewarrant.[96] The Garofoli decision also canvassed what to consider when assessing the reliability of information from a confidential source. Reference was made to Debot and R. v.

Greffe, (SCC), [1990] 1S.C.R. 755 and the Supreme Court of Canada stated, in Garofoli, at paragraphs 67 and 68, as follows:67 Lamer J. also referred with approval to the following passage from Martin J.A.'s judgment in R. v. Debot (1986), (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.), at pp. 218-19, as the test for assessingconfidential informer's information: I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search ....

Highly relevant ... are whether the informer's"tip" contains sufficient detail to ensure it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability,such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance. 68 Although Greffe concerns admissibility under s. 24(2), in my opinion the discussion has a bearing on the sort of information that must be put before a judge issuing an authorization for electronic surveillance.

I seeno difference between evidence of reliability of an informant tendered to establish reasonable and probable grounds to justify a warrantless search (the issue in the cases cited by Lamer J.) and evidence of reliability of aninformant tendered to establish similar grounds in respect of a wiretap authorization. Moreover, I conclude that the following propositions can be regarded as having been accepted by this Court in Debot and Greffe. (

i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probablegrounds. (ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including: (

a) the degree of detail of the "tip";(

b) the informer's source of knowledge;(

c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information.[97] Further, I refer to R. v. Prosser, 2016 ONCA 467, where the Ontario Court of Appeal stated that the information from a confidential source need not be the only basis to establish the reasonable grounds requiredfor issuance of a warrant.

At paragraph 17 in Prosser, they stated this as follows:17 Third, neither the statutory enactments nor the common law requires that information from a CI be the exclusive source or bear the entire burden of establishing the necessary evidentiary foundation for a finding ofa reasonably grounded belief of the presence of the evidence sought in the place proposed to be searched. To be sure, information from an informant services this requirement in many instances.

But it is not a legalrequirement any more than we demand that a single item of evidence prove an essential element of an offence…[98] The reliability assessment of Source A was undertaken in light of the foregoing authorities, the submissions of Counsel, and the contents of the redacted ITOs.[99] First, in applying the Debot criteria, I found the information from Source A in the redacted ITOs to be compelling.

Source A was the only voice identification evidence; and such was material identificationinformation supporting the issuance of the warrants. [100] Specifically, according to the ITOs, upon hearing an audio portion of the video footage, Source A identified the Accused’s voice as being that of the gunman. As well, the ITOs indicate that Source A hadcommented he/she “had never heard Brandon Phillips use that tone of voice” and advised “some of the phrases that the suspect used are used by Brandon Phillips” (paragraph 42 of the ITOs).

Further, there was referencein the ITOs as Source A being confident that the perpetrator’s voice was that of the Accused on a “9/10” basis (paragraph 43 of the ITOs).

Source A also believed that the Accused was the person depicted in the photo ofthe gunman which had been released (paragraph 40 of the ITOs). [101] Further, the compelling nature of Source A’s information was demonstrated by the extent of Source A’s detail regarding the Accused’s personal information, suggesting Source A’s familiarity not only with theAccused’s voice, but also with the Accused’s living arrangements and residence, the type of car the Accused drove, and the ownership of that car. Source A also identified the Accused’s cell number, and that the Accused

shared the phone with his girlfriend. Source A further indicated that the Accused had a North Face jacket, or Helly Hansen jacket, the type and colour of the perpetrator. He also indicated that the Accused was a major drug user, and that he had been told the Accused had a gun. [ 102 ] With respect to Source A’s credibility, the redacted ITOs revealed that Source A was not a new source, and that he or she had been used in the past by other members of the RNC for a year, and by Constable Haye for two or three years. Further, Source A provided information consistent with other sources on a regular basis.

In addition, Source A had been paid between 10 and 15 occasions for information leading to arrests. This information is an indicator of the reliability and credibility of Source A. [ 103 ] On the other hand, Source A was described in the redacted ITOs as a drug user, with a criminal record. It was unknown if Source A had a conviction for crimes of dishonesty. Further, it was unknown how Source A knew the information that he, or she, had provided to the RNC.

In addition, the ITOs suggested that there had been other potential suspects; and that the Accused had been subject to intimidation. [ 104 ] Given that there were challenges in assessing Source A’s credibility, and considering the Debot analysis, corroboration of Source A’s information was crucial to the analysis. [ 105 ] In the Crown’s written submissions, the Crown presented a persuasive

summary of corroboration in the ITOs of much of the information provided by Source A. For example, Source A indicated that the Accused owned a Helly Hansen or North Face jacket, the type and colour worn by the perpetrator in the photograph from the video.

As noted in the Crown’s brief, corroboration of this information came from another person identified in the ITOs as having advised the RNC that the Accused had possession of a black North Face jacket. [ 106 ] There was also corroboration by other persons (in the ITOs) of Source A’s information that the Accused was a drug user, and that he lived at 30A Quidi Vidi Road. It was also corroborated that the Accused drove a vehicle that belonged to his girlfriend, and that the vehicle was a white Audi, as was indicated by Source A.

The cell phone number indicated by Source A was corroborated as being that of the Accused’s girlfriend. Further, Source A had indicated that he believed the person in the photo of the perpetrator (which had been released to the media) was the Accused, and the ITOs indicated that another person had also thought that the masked gunman in the photo looked like the Accused. [ 107 ] What was not corroborated was Source A’s information that upon entrance to 30A Quidi Vidi Road, it was necessary to go up a flight of stairs.

It was also not corroborated that the Accused had a gun; and as stated, the only voice identification was that of Source A. [ 108 ] On this latter point, however, as stated, the ITOs suggested that Source A’s familiarity with the Accused’s voice could reasonably be inferred. Specifically, the familiarity could be inferred by the detail of Source A’s corroborated information about the Accused. For example, Source A even knew the Accused’s cell number, the car he drove, and who actually owned the car.

Based on that level of familiarity, in my view the ITOs suggested that Source A had a sufficient basis to identify the Accused’s voice; and such identification was not merely a bald conclusory statement. [ 109 ] I add that a finding of Source A’s familiarity with the Accused’s voice is consistent with the nature of the comments made by Source A regarding the tone of voice, and phrases, used by the suspect in the video. [ 110 ] Based on the foregoing, and after considering the “totality of the circumstances” ( Debot , paragraph 53), I was satisfied there was sufficient information in the redacted ITOs to find that Source A’s information was reliable.

There was some weakness in the area of credibility, due to lack of information, as noted. However, the strength of the corroboration, and the compelling nature of the information provided compensated for any weakness in the area of credibility ( Debot , at paragraph 53). Therefore, the redacted ITOs provide sufficient information to allow a reliability assessment of Source A; and to find that the information provided was “sufficiently reliable to have formed part of the reasonable grounds” (see Plant at paragraph 28 ).

As a result, I determined that the information from Source A should not be excised from the ITOs; and it was not necessary to consider step 6 of Garofoli . (iii) The inclusion of allegedly prejudicial materials in the ITOs [ 111 ] The Defence also raised concerns over the fact that the ITOs did not disclose the limited nature of the Accused’s criminal record. Specifically, there is no reference to the fact that the Accused did not have a record for crimes of violence or robbery.

On this point, I agree with the Crown’s submission that the failure to state such would not have led the issuing judge to conclude that the Accused had a criminal record for violence, or a propensity for the crimes alleged. [ 112 ] The Defence further suggested that reference in the ITOs to the Accused’s father as a convicted murderer was prejudicial, and such information is in the ITOs simply for the purpose of raising unfair, speculative inferences. [ 113 ] On this point, I agree with the Crown that these comments of the affiant must be viewed in the context they were presented in the ITOs.

Specifically, the Accused’s father’s criminal history was contained in recitals of information provided to Sergeant Tom Warren, in the course of an interview with a witness. At paragraph 72(gg), the affiant stated: 72 (gg) Mr. Ball said Brandon Phillips is a very volatile person and he is the son of Eric Squires, who is currently serving time for a murder that occurred in the late 1990’s. [ 114 ] I agree with the Crown’s submission that the inclusion of this information was necessary to provide full, frank and fair disclosure.

Otherwise, the police could be accused of concealing information which may suggest a potential witness bias. [ 115 ] The Defence further took issue with the ITOs having provided dated information from another confidential informant who suggested that the Accused was responsible for one, and possibly two, robberies of the Captain’s Quarters in 2010. Two persons, other than the Accused, were charged for the second robbery in 2010.

With respect to the first robbery, the affiant, Constable McEntegart, identified in the ITOs what he considered to be similarities between the first 2010 robbery, and the October 2015 robbery of the Captain’s Quarters. [ 116 ] The Crown submitted that the information with respect to the first armed robbery in 2010 is arguably similar fact evidence; and that the net effect of the information was to outline the strength, or weakness, of the evidence connecting the Accused to the first robbery, and how such could link him to the October, 2015 robbery. [ 117 ] In my view, the references in the ITOs to the two previous robberies in 2010 for which the Accused was a suspect, but never charged, were indeed unnecessary and irrelevant.

The comparisons have little, if any, probative value. In my view, such evidence could only be construed as an attempt to show propensity based on similarities of little, if any, significance. [ 118 ] However, I recognize that because the Accused was not charged with the 2010 robberies, in my view, the issuing judge would have given no weight, whatsoever, to that information. Further, I do not consider the affiant’s inclusion of the information as suggesting an attempt to mislead. It was included in error, and such is a minor error of no significance, or prejudice.

As a result, I would excise all information in the ITOs relating to the 2010 robberies of the Captain’s Quarters. [ 119 ] Finally, the Defence also took issue with the ITOs having described the Accused as having been in a car with a person whose name is in bold, but who had nothing to do with the case. The Defence asserted that the person whose name is in bold is known to Provincial Court.

On this point, I agree with the Crown, however, that the use of bold font cannot reasonably be construed as suggesting guilt by association. (iv) Other concerns raised by the Defence [ 120 ] The Defence also suggested that the affiant of the ITOs attempted to leave the erroneous impression that text messages had been allegedly received from the Accused, and that the messages suggested an admission.

However, on the contrary, in my view the affiant clarified in the ITOs that the messages suggested an admission of theft, not an admission of murder (at paragraph 72 (aa) of the ITOs). [ 121 ] Finally, the Defence noted that in

Schedule C of one of the ITOs, the affiant said: “Source A has also identified Brandon Phillips as likely being the person responsible for the murder, as did Brandon Phillips’ girlfriend’s father, Dwight Ball”. Defence Counsel submitted that this was an overstatement, or misrepresentation. I agree. The ITOs indicated that what Dwight Ball said in an interview with Sergeant Warren was that “it could have been him” (paragraph 72(dd) of the ITOs), not that the Accused was likely the person responsible. [ 122 ] However, I consider this to be a minor overstatement.

There is nothing in the ITOs to suggest it was anything other than a good faith error, or overstatement. The remedy is excision of the words “as did Brandon Phillips’ girlfriend’s father, Dwight Ball”. Further on this point, I adopt and apply the reasoning of the Ontario Court of Appeal in R. v. Campbell , where they stated, as follows, at paragraph 44: 44 As I have indicated earlier, there were statements in the

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section that were inaccurate. However, the accurate information is set out so clearly in the ITO as a whole, the inaccurate statements alone do not support the inference they were made with the intention to mislead. Therefore, I would exclude these statements from the ITO, and carry out the analysis on the balance of the ITO. CONCLUSION [ 123 ] Based on the foregoing analysis, I found that there were no material misrepresentations, no material overstatements, no material omissions, no fraudulent misrepresentations, and no attempts to mislead by the affiant.

There were some minor errors, minor misrepresentations, minor overstatements and minor omissions, all of which were made in good faith. I therefore considered the contents of the redacted ITOs after excising the errors, overstatements, omissions and misrepresentations.

I considered the totality of the information remaining in the ITOs, with amplifications, as described in the foregoing analysis. [ 124 ] As a result, and as submitted by the Crown, the information remaining in the newly excised and amplified redacted ITOs included, but was not limited to, the following: information that the masked gunman in the video looked like the Accused; information that the masked gunman in the video sounded like the Accused; information that the masked gunman wore clothes like those possessed by the Accused; information that the masked gunman in the video wore Air Jordan sneakers, and that the Accused was seen wearing Air Jordan sneakers after the incident; information that the masked gunman said he needed money, and that the Accused needed money at the time of the shooting; information that the masked gunman used a firearm, and information that the Accused was in possession of a gun; and information that a tuque with eye holes cut out was found, subsequent to the incident, along the path which may have been taken by the masked gunman after the robbery, and in the direction of the Accused’s nearby residence. [ 125 ] In my view, this above information, along with the remaining contents of the newly excised and amplified redacted ITOs, supported the finding that the issuing judge could have granted the warrants.

The redacted ITOs, even with the excisions and amplifications, had “sufficient credible and reliable evidence” to permit the issuing judge to find “reasonable and probable grounds to believe that an offence had been committed” by the Accused, and that “evidence of that offence would be found at the specified time and place” (see Morelli , paragraph 40 ). [ 126 ] After considering all the submissions of Counsel, the evidence from the hearing, and the case law, I therefore concluded that the redacted ITOs contained sufficient information to permit the issuance of the warrants, in accordance with the law. [ 127 ] The Application was therefore dismissed. _____________________________ Valerie L.

Marshall Justice