R. v. Latif, 2016 ONCJ 109

CITATION: R. v. Latif , 2016 ONCJ 109 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — SHAN LATIF, RUBINA LATIF AND MOHAMMAD LATIF Before Justice Bloomenfeld Ruling on Charter Application E. Rokach ……………………………………………………...……………………for the Crown J. Lockyer ………………………...…………………………….………for the accused Shan Latif D. Frost ………………………………...……………………….……for the accused Rubina Latif J. Lopes ……………………………………...………………….for the accused Mohammad Latif BLOOMENFELD J.: (

I) INTRODUCTION [ 1 ] Shan Latif, Rubina Latif and Mohammad Latif face an array of criminal charges relating to their alleged possession of a loaded 9 mm Smith & Wesson semi-automatic pistol, ammunition, a magazine and a taser. Police found the items in the Latifs’ residence at 46 Huntingwood Drive in Toronto and seized them pursuant to a search warrant. [ 2 ] The police had obtained the search warrant for the residence as well as a 2007 white Cadillac Escalade motor vehicle with Ontario Licence plate BKEM065, registered to Shan Latif, on February 12, 2013.

The next day, February 13, 2013, at 5:52 p.m., police observed Shan Latif leaving 46 Huntingwood Drive in the Escalade. They stopped the vehicle a short distance away and detained Mr. Latif. The vehicle was subsequently searched but nothing relevant was found. [ 3 ] The search warrant was executed at the 46 Huntingwood Drive residence at 6:10 p.m. Rubina Latif and Shan Latif’s brother, Babur Latif, were in the home at the time and both were detained. There was a combination-locked safe in a closet off of Rubina Latif and Mohammad Latif’s master bedroom. Rubina Latif gave the police the combination for the safe.

The police opened it and found a grey plastic bag containing a Smith & Wesson 9 mm handgun with two rounds in an overcapacity magazine, eighteen 9 mm rounds of ammunition, a magazine and a taser. There was also another bag containing Shan Latif’s passport and two documents relating to criminal charges that Shan Latif had faced in 2009. The police seized these items and arrested Shan Latif, Rubina Latif and Babur Latif. Mohammad Latif was arrested when he arrived at the residence a short time later.

All four members of the Latif family were charged with criminal offences arising from their alleged possession of the seized items. [1] [ 4 ] The affidavit sworn in support of the application for the search warrant was heavily redacted because it contained numerous references to information provided by a confidential informant. [2] The accused contend that the search warrant was improperly issued and that the redactions in the ITO undermine their right to make full answer and defence. Accordingly, they allege breaches of their rights under s. 8 , s. 7 and s. 11(

d) of the Canadian Charter of Rights and Freedoms . They ask me to apply s. 24(2) and s. 24(1) of the Charter to remedy the breaches by excluding the evidence of the items seized at trial. [ 5 ] I have concluded that there were no Charter breaches in this case and the application is dismissed. [3] (II) CHARTER S. 8 A.

The Test on a Charter s. 8 Review [ 6 ] The parameters of a judicial review of an ITO on a Charter challenge to the validity of a search warrant have been exhaustively examined and documented within the jurisprudence. [4] A judicially authorized search warrant is presumptively valid and the accused have the onus of demonstrating there was no basis for its issuance. [5] The applicant accused bear the burden of establishing on a balance of probabilities that the search in this case violated their Charter rights and that any evidence seized as a result should be excluded pursuant to s. 24(2) . [ 7 ] A trial judge reviewing the sufficiency of the ITO may not substitute his or her view for that of the issuing justice.

The question is not whether the trial judge would have issued the warrant but whether the issuing justice could have issued it, based on the record as amplified on review. [6] As stated by the Supreme Court of Canada in the leading case of R. v. Garofoli ,

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 concludes that 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, rather than 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. [7] [ 8 ] An ITO is sufficient to support a search warrant if, in the totality of the circumstances, it reveals reasonable grounds for the affiant to believe that the suspect committed an offence and evidence of that offence will be found at the target location. “Reasonable grounds” has both a subjective and an objective component.

The objective component, as described recently by Campbell, J. in R. v. Boussoulas , “does not require proof beyond a reasonable doubt or even the establishment of a prima facie case. Rather, this standard is one of credibly based probability, and requires proof of reasonable probability or reasonable belief. At the same time, it requires more than an experience-based “hunch” or reasonable suspicion. In other words, if the inferences of criminal conduct and the recovery of evidence are reasonable on the facts disclosed in the ITO, then the search warrant could have issued.” [8] B.

The Test Where the ITO Relies on a Confidential Informer [ 9 ] Assessing reasonable grounds where the affiant relies on information from a confidential informer requires additional considerations tailored to the particular pitfalls of informer “tips.” Those considerations were first authoritatively prescribed by the Supreme Court of Canada in R. v. Debot [9] and continue to govern every case where the ITO includes confidential informer information. The court’s task in evaluating an informer tip was succinctly summarized in R. v.

Boussoulas as follows: “[W]hen the police rely upon information from a confidential informer to meet this standard, consideration must be given to whether the information from the informer is compelling, credible or corroborated by other aspects of the police investigation. These are not discrete, isolated inquiries, however, and weaknesses in one area may be offset by strengths in another.” [10] In the instant case, the confidential informer tip formed the foundation of the affiant’s grounds.

Accordingly, the evaluation of the sufficiency of ITO and the validity of the warrant requires an assessment of whether the informer and the information that he or she provided were compelling, credible and/or corroborated. C. Where the ITO is Redacted to Protect Informer Privilege – “Step Six” [ 10 ] The identity of the confidential informer in this case is protected by informer privilege. [11] As a result, the ITO provided to defence counsel was heavily redacted. Crown counsel conceded that, in its redacted form, the ITO cannot sufficiently support issuance of the search warrant.

The Supreme Court of Canada set out the procedure for reviewing and evaluating an ITO where the Crown has withheld part of its contents in R. v. Garofoli . [12] The Garofoli procedure has six steps, the first five of which endeavour to adjust the redactions to determine whether the Crown can support the authorization on the basis of the edited ITO. Where steps one through five fail to disclose sufficient detail in the ITO to justify the issuance of the search warrant, the Crown has the option of using “step six” to apply to the court to review redacted portions of the ITO.

Step six is set out by Sopinka J. as follows: 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. [13] [ 11 ] As specified by Sopinka J., the Crown’s step six application may only be granted if the trial judge is satisfied that the accused has enough information about the nature of the redacted parts of the ITO to challenge the warrant with argument, evidence or both. To that end, the trial judge should provide defence counsel with a

summary of the redacted parts of the ITO. The judicial

summary must be carefully crafted to protect informer privilege. If the Crown is concerned that the

summary and / or the disclosure would jeopardize informer privilege or prejudice public interest, it can abandon the attempt to adduce the seized items into evidence. D. The Challenge to the Warrant in this Case [ 12 ] As indicated, the ITO in the instant case was heavily redacted to protect the identity of the confidential informer. The applicants submit that the materials disclosed to the defence in the case do not support a search of their residence or car that meets s. Charter s. 8 standards. Crown counsel concedes that the redacted ITO could not support the issuance of the warrant.

Accordingly, the Crown applies to rely on “step six” of the Garofoli procedure and asks me to incorporate some of the redacted information into my consideration of the sufficiency of the ITO and the legal propriety of the issuance of the warrant. [ 13 ] The accused resist the use of “step six,” contending that the record as a whole and the judicial

summary in particular do not make them sufficiently aware of the nature of the excised material to challenge the warrant in argument or by evidence. They submit that the risk of identifying the confidential informer by narrowing the pool was overused by the Crown to exclude all substantive information relevant to all three of the Debot requirements from the ITO and the judicial

summary. [14] Further, the accused impugn the investigative approach and attitude of the affiant, D.C. O’Connor, alleging a lack of assiduousness, excessive casualness and insufficient respect for the privacy interests of the applicants. Finally, the accused contend that the process leading to the finalization of the judicial

summary was unfair in that D.C. O’Connor was allowed to “play a material role” and make “significant ‘evidentiary submissions’” to the court during ex parte proceedings. E. Sufficiency of the Judicial

Summary – Legal Parameters: From Garofoli to R. v. Crevier : [15] (

i) Crevier’s contribution to step six jurisprudence: [ 14 ] Garofoli ’s brief, succinct direction for employing “step six” has engendered an extensive body of jurisprudence

attempting to flesh out the ingredients of a sufficient judicial

summary. The practical and procedural challenges of balancing the applicable interests, including the accused’s right to make full answer and defence, informer privilege and the open courts principle within the context of the adversarial trial process have created a complex labyrinth of legal issues. As the case law has multiplied, the labyrinth has expanded, continually spawning further nuances and more questions than answers. [ 15 ] Many of those questions were addressed in the recent, authoritative decision of the Ontario Court of Appeal in R. v.

Crevier . [16] Crevier squarely raised one of the central issues at stake in the instant case, framing the question as follows: 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 . [17] As squarely acknowledged in Crevier , the form and content of the judicial

summary are crucial to application of step six. Accordingly, Crevier detailed guidance on the principles and criteria to be used in assessing the sufficiency of the judicial

summary on a step six application. [ 16 ] Crevier was released by the Court of Appeal after the submissions in this case were completed. Counsel in the instant case were offered the opportunity to make further submissions in the wake of Crevier. All counsel declined. (ii) Applicable Principles on a Step Six Application: [ 17 ] As distilled in Crevier , the determination of a step six application requires the balancing of, (1) society’s interest in law enforcement; (2) informer privilege; and (3) the accused’s right to make full answer and defence.

Law Enforcement [ 18 ] The Court in Crevier cited the efficacy and utility of search warrants as tools of crime detection, evidence gathering and apprehension and conviction of criminals. [18] The Court characterized the Garofoli hearing as a process to assist in confirming the legality of searches “where the proper procedure was followed and the statutory requirements for issuing the search warrant were met.” [19] The Court noted that, in the absence of a step six application, redactions protecting the identity of a confidential informant may force the reviewing court to assess the sufficiency of the ITO on the basis of an incomplete picture.

Thus, a search may be deemed to violate s. 8 of the Charter even where the issuing justice made no error. Accordingly, the Court of Appeal directed that, “[p]rovided the accused’s right to full answer and defence is protected, an otherwise sufficient ITO should not … 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.” [20] Informer Privilege [ 19 ] As observed in Crevier , informer privilege is nearly absolute, subject only to the “innocence at stake” exception.

The deep and encompassing protection offered by informer privilege acknowledges the “vital” role that informers play in law enforcement and the corollary risk of retribution from criminal actors. [21] Specifically, informer privilege prohibits disclosure of “any information which might tend to identify an informer, including any information that might implicitly reveal his or her identity.” [22] Notably, granting the protection of informer privilege is not

an act of discretion by the individual judge: “[a]bsent the innocence at stake exception, the court does not have the discretion to disclose any information that could reveal the informer’s identity.” [23] The caveat is that informer privilege does not nullify or devalue other pertinent principles.

Rather, the court “must nonetheless uphold other principles, such as the open courts principle, to the greatest extent possible without disclosing the informer’s identity.” [24] Harmonizing informer privilege with other principles in the Garofoli context incudes editing the ITO affidavit as minimally as possible to protect the informer’s identity while ensuring that the accused’s right to full answer and defence is respected. [25] Full Answer and Defence [ 20 ] The Court of Appeal put to rest the suggestion made in some of the lower court jurisprudence that the right to full answer and defence is somehow “attenuated” in the context of a Garofoli admissibility hearing. [26] The Court traced the misuse of the notion of an “attenuated” right to a misinterpretation of the Supreme Court of Canada’s decision in R. v.

Pires; R. v. Lising . [27] Pires confirmed that the need to properly contextualize the right to full answer and defence depends on the nature of the proceeding. Accordingly, in 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.” [28] The other interests in a Garofoli hearing include protection of the identity of informers. [29] As established in R. v. Mills, [30] an accused is not entitled to the “most favourable” possible procedure.

Rather, the fairness of the trial process must be assured from the perspective of both the accused and the community. In the Garofoli context, fairness requires balancing the right to make full answer and defence with the interests of law enforcement, which includes the protection of informer privilege.

The task of the Garofoli application judge is therefore to give the fullest possible effect to the right to make full answer and defence while protecting a confidential informer’s identity. [31] (iii) Protecting the right to full answer and defence in “step six” cases: [ 21 ] Crevier highlights five particular contextual elements to be considered in ascertaining whether full answer and defence has been protected on a Garofoli hearing: [32] First: In addition to the judicial

summary and the redacted ITO, an accused will have all of the Stinchcombe disclosure materials and possibly third party disclosure materials, the results of cross-examination of the affiant and/or any evidence that he or she has chosen to lead; [33] Second : A Garofoli hearing is a pre-trial, threshold evidentiary hearing, not a trial on the merits where guilt or innocence is at stake; [34]

Third: Proof that an informer provided inaccurate or false information to the police does not automatically invalidate the issuance of the warrant. It is only relevant to the extent that the ITO affiant knew or should have known it was false, because that would negate the statutory precondition of reasonable belief in the existence of the necessary statutory grounds; [35] Fourth: The search warrant is presumptively valid.

The question on a Garofoli application is whether the issuing justice had reasonable and probable grounds to believe that an offence had been committed and there was evidence to be found at the place of the search. [36] Fifth: The ITO must contain sufficient details about the informer’s reliability to satisfy the Debot [37] requirement that the tip is compelling, credible and corroborated. The affiant’s duty to make full and frank disclosure mandates that details unfavourable to the informer also be included.

Those details pertinent to the Debot analysis are potentially the most persuasive portions of the ITO, yet they must often be redacted in order to protect informer privilege. [38] [ 22 ] The Court of Appeal also stated, definitively, that preserving the right to full answer and defense in the Garofoli step six context requires that the accused be able to mount both a facial and a sub-facial attack on the warrant, including those parts of the ITO that have been redacted but are relied upon by the trial judge. [39] The ability of the defence to attack the warrant sub-facially is contingent on a well-crafted judicial

summary of the redacted portions of the ITO. For example, the combination of a well-crafted judicial

summary, the disclosure, the ITO, any cross-examination of the affiant and any evidence tendered can position the defence to “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.” [40] Accordingly, the adequacy of the judicial

summary plays a critical role in determining whether the accused is sufficiently aware of the redacted information. [41] F. Criteria for Assessing the Sufficiency of the Judicial

Summary at Step Six (

i) Content of the

Summary: [ 23 ] As affirmed in Crevier , the judicial

summary of the redacted portions of the ITO cannot simultaneously protect informer privilege and provide a complete substitute for full disclosure. Within that limitation, the trial judge’s task is to prepare a judicial

summary that provides 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. ” [42] The purpose of the

summary is to allow the accused to “meaningfully argue whether the information contained in the ITO is sufficient to meet the Debot criteria.” [43] [ 24 ] To this end, the Court of Appeal in Crevier offered the following non-prescriptive, non-exhaustive list illustrating the types of information that the trial judge should consider including in the

summary. The Court was careful to specify that “failure to include one or more of these points” would not render a

summary inadequate: • 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 the contact between them; • Whether the informer has previously provided information to the 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 is 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 the police; • The recency or timing of the information that the informer provided to the police; • Any discrepancies between the information of one informer and another; and • Any errors or inaccuracies that exist in the ITO and their nature (e.g. typographical errors). [44] [ 25 ] Crevier also settles any debate as to whether the

summary must include substantive content of redacted details or whether it is sufficient to indicate the nature of the details. [45] According to Crevier , the

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” (emphasis added). [46] An accused “need be aware of only the nature of the redacted details, not the details themselves” (emphasis in original). [47] (ii) Format of the

Summary: [ 26 ] Crevier recommends that the judicial

summary track the redactions in the ITO. An accused should be able to identify not

only what kind of information the redactions contain but also where within the ITO the redacted information appears. If a particular redacted passage or paragraph of the ITO cannot be summarized for informer privilege reasons, this should also be clearly marked and identified by the judicial

summary. [48] (iii) Cross-Examination of the Affiant: [ 27 ] In the event that the reviewing judge has previously denied an accused’s application to cross-examine the affiant on the ITO, that decision should be reconsidered once the accused has the judicial

summary. Further cross-examination should also be considered if requested by the accused. [49] (iv) Ongoing Protection for Full Answer and Defence if the Step Six Application is Granted: [ 28 ] The reviewing judge’s gate-keeping function does not end with the step six decision. The accused’s right to full answer and defence must continuously be protected. In this regard, Crevier offers two specific directives:

(1) Disregard any unsummarized redacted portions of the ITO [ 29 ] Redacted portions of the ITO that cannot be sufficiently summarized must not be considered by the reviewing court in applying step six or in assessing the validity of the search warrant. The guiding question is always whether the accused is sufficiently aware of the redacted information to challenge it in argument or by evidence. [50]

(2) Adjust or attenuate the weight of redacted passages according to the accused’s ability to challenge them directly [ 30 ] The weight assigned to the redacted passages that the court does rely on must be calibrated according to the accused’s ability to directly challenge them. The court analogized this approach with cases where a witness’s cross-examination cannot be completed because of an intervening event such as illness or death.

In such cases, the lack of opposing counsel’s opportunity to fully test the witness’s testimony in cross-examination must factor into the court’s assessment of the evidence’s weight. Thus, “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.” [51] (

v) Summary of Crevier’s Guidance for Step Six Judicial Summaries: [ 31 ] Crevier offers principled, detailed, concrete, versatile and context-responsive guidance for crafting judicial summaries and evaluating whether they, along with the other evidence and disclosure available to the accused, are sufficient to grant a Crown’s application to rely on step six. The guidance in Crevier is intended to balance the crucial intersecting interests of law enforcement, informer privilege and full answer and defence that distinguish step six applications.

Further, in addition to offering direction in drafting and evaluating judicial summaries, Crevier asserts that the protection of full answer and defence necessarily continues as a governing precept where step six is ultimately employed in determining the validity of a search warrant. The principles utilized in drafting judicial summaries and ascertaining their sufficiency continue to apply in any ensuing review of the warrant.

Thus, in assessing the ITO for Charter compliance, the court should exclude unsummarized redactions from consideration and assign an adjusted or attenuated weight to unredacted sections that cannot be directly challenged through submissions or evidence. (vi) Two Outstanding Issues Post-Crevier: Procedure for Drafting the Judicial

Summary and the Use of Amicus: [ 32 ] While Crevier supplies needed assistance for courts in drafting and evaluating the content of judicial summaries, some issues are still in the more vestigial stages of jurisprudential development. Two such issues arose in the instant case: (1) the implementation of Crevier principles in the practical mechanics of crafting a judicial

summary that protects informer privilege while simultaneously providing the accused with as much information as possible about the redacted portions of the ITO; and (2) the defence request that amicus be appointed to assist the reviewing court in drafting the

summary and making submissions relating to the redacted portions that the accused will never see. G. The Path to Step Six on this Application [52] (

i) In General: [ 33 ] The process of finalizing the judicial

summary in this case was arduous, lengthy and occasionally contentious. Crevier, had it been available, would have assisted greatly in determining the form and content of the judicial

summary. There remains, however, a dearth of jurisprudential guidance on the nuts and bolts mechanics of crafting judicial summaries in this context. To the extent that the process is described at all in the ever-expanding body of case law, there appears to be a proliferating range of practices and ad hoc procedures as courts struggle to rationalize occasionally conflicting priorities, principles, practical exigencies and new applications of the judicial skill set . [ 34 ] The most pressing and challenging task is to find a way to craft a judicial

summary that includes as much detail about the redacted portions of the ITO as possible without violating informer privilege. The court necessarily operates in an informational vacuum, without the contextual or factual details possessed by the Crown and the police about the nature of the informer and the source of his or her information. As a result, the court must rely to some extent on the Crown to ensure that informer privilege is not inadvertently breached. If the court is to exercise a judicial function in crafting the

summary in a manner that protects both informer privilege and the right to full answer and defence, there will be occasions when some form of communication with the Crown is necessary. The extent and manner of that communication may depend on case-specific variables, such as the complexity of the case, the nature of the information and the informant, the positions of counsel and the contents of the ITO. In some cases, all counsel and the court are content with an initial draft judicial

summary created by Crown counsel and satisfied that the

summary fulfills the requirements of Garofoli step six. Where that is not so, the range of techniques that could be or appear to have been employed by the courts to finalize the

summary include:

• exchanges of sealed, written drafts of the

summary between the Crown and the court; • sealed, written submissions by the Crown as to why the court’s editing suggestions may or may not breach informer privilege; • “coded,” in-court oral submissions on various drafts drawing from sealed, written materials; • ex parte and/or in camera meetings between the Crown and the court, with or without the presence of the affiant and with or without a recording; • ex parte proceedings in which the Crown makes oral submissions on whether or how aspects of the proposed judicial

summary could breach informer privilege; and • the appointment of amicus to assist the court in some permutation or combination of these approaches. [ 35 ] All of these techniques have practical limitations and many of them may appear dissonant from the basic, essential principles of open court proceedings, an accused’s right to be present during the whole of his trial [53] and the adversarial paradigm upon which our justice system is based. Courts must, nevertheless, meet the challenge of meaningfully adjudicating step six applications within the fundamental tenets of our legal system.

As the use of step six has grown, so has the body of jurisprudence guiding the application of the legal principles for drafting and assessing judicial summaries. There is now a pressing and concomitant need for guidance in developing judicial tools and practical methodologies for crafting the summaries in a manner consistent with and fulfilling those principles. [ 36 ] The process that was ultimately utilized in this case combined some of the practices described above.

It was continuously adapted as the issues and positions of counsel developed and represented an entirely case-specific effort to harmonize competing principles. Within this context, the aim was a process that balanced the interests of law enforcement, informer privilege [54] and full answer and defence. [55] The objective was to attempt to craft a judicial

summary that enabled the accused to challenge the warrant through submissions or evidence without violating informer privilege. Inherent in the undertaking of that task was the understanding that it would not necessarily be possible to achieve a process and / or a result that satisfied all of the applicable and sometimes opposing principles equally or flawlessly. (ii) Redacted ITO: [ 37 ] The Crown provided the redacted ITO to the Court along with a copy of the unredacted ITO.

I reviewed the two documents to determine whether portions of the edited version could be unredacted to ensure full compliance with Stinchcombe [56] disclosure principles, subject to informer privilege. My suggestions for disclosing some redactions were addressed through a combination of written, sealed communications and in-court, “coded” submissions. At the end of this process, there remained one word that the defence sought to be unredacted.

The Crown resisted and asserted that she could not explain her resistance in open court without violating informer privilege and sought to make her submissions ex parte . (iii) Judicial

Summary of the Redactions: [ 38 ] In order to make the most effective use of court time, the process of preparing and finalizing the judicial

summary of the redacted portions of the ITO [57] was undertaken concurrently with evaluating whether the additional word in the ITO could be disclosed. The Crown prepared a draft judicial

summary that was given to the Court and the applicants for review. I proposed changes and additions with a view to supplying the defence with as much information about the redacted portions as possible without violating informer privilege. Suggested changes were communicated to Crown counsel in writing. [ 39 ] As with the remaining, contested, redacted word in the ITO, The Crown contended that she could only make submissions about the proposed editorial revisions to the judicial

summary on an ex parte , in camera basis, [58] because any other path would risk identifying the confidential informer. The applicants vigorously resisted this approach. After submissions from all parties, I accepted the Crown’s position and submissions were made in the courtroom with the recording equipment running and all parties excluded except me, Crown counsel and a police officer assisting the Crown. The Crown relayed her position as to why open court submissions concerning the ITO and the judicial

summary could jeopardize informer privilege. A transcript of the in camera proceeding, edited to protect the informer’s identity, was provided to all counsel. [59] Counsel for the applicants brought a mistrial application, alleging that the ex parte communications were premature, had short-circuited the defence opportunity to make submissions, represented a “breakdown of the adversarial system” and compromised the appearance of fairness. The mistrial application was dismissed. [60] [ 40 ] I reformatted the draft judicial

summary so that the redacted portions of the ITO were parallel to the corresponding passages in the

summary in order to maximize the utility of the judicial

summary and to facilitate any further submissions on editing. I also colour coded proposed changes for the benefit of counsel. [61] The defence had filed a lengthy list of substantive questions about the ITO for consideration in drafting the finalized judicial

summary. Ultimately, after further submissions, I determined that the only way to ensure that the judicial

summary was as comprehensive as possible and that the defence questions were thoroughly canvassed without breaching informer privilege was to conduct an ex parte, in camera proceeding [62] . At my request, the applicants’ questions were revised and resubmitted so that they could be addressed during the in camera submissions. The revised list of questions also reflected the latest version of the draft judicial

summary. [63] [ 41 ] During the in camera submissions, I reviewed proposed modifications to the

summary that the Crown had rejected on the basis of informer privilege in order to ascertain whether the Crown’s objections were justified and to include as much information as possible. I also requested submissions on how the Crown could answer the questions posed by the applicants, either directly or by incorporating information into the judicial

summary. In accordance with the suggestion of counsel for the applicants, the affiant, D.C. Mike O’Connor, attended the in camera proceeding to provide Crown counsel with any relevant, necessary details concerning the confidential informer and the ITO. The finalized judicial

summary [64] and transcripts of the in camera submissions were given to all counsel. [65] At my request, Crown counsel also provided a written response to applicants’ list of questions about the ITO. [66] The applicants brought a second mistrial application, protesting the exclusion of the accused and their counsel from the ex parte proceedings

and alleging that D.C. O’Connor participated too directly in the process. The mistrial application was dismissed. [67] (iv) Other Evidence: [ 42 ] In addition to the redacted ITO, the edited transcripts of the in camera proceedings, the judicial

summary of the redacted portions of the ITO and the Crown written responses to the applicants’ questions about the ITO, the applicants were granted the opportunity to cross-examine D.C. O’Connor. Subsequently and finally, Crown counsel adduced the testimony of P.C. Steven MacNeil, who had assisted in the surveillance of 46 Huntingwood Drive at the request of D.C. O’Connor prior to the application for the search warrant. P.C. MacNeil was called by Crown counsel in response to testimony from D.C. O’Connor about the timing of the surveillance and the search warrant as recorded in his notes. H.

Information Provided to the Defence About the Redacted Portions of the ITO [ 43 ] In my view, the judicial

summary, in combination with the redacted ITO, the disclosure, the cross-examination of the affiant and D.C. MacNeil, the edited transcript of the ex parte submissions and the Crown’s written response to the defence questions, provided the accused with sufficient information to challenge the ITO in argument or by evidence. The following is a

summary of the information made available to the defence, organized according the three Debot criteria. [68] The

summary also identifies which items are also contained in the Ontario Court of Appeal’s illustrative list in Crevier . [69] (

i) Information Pertinent to Whether the Tip was Compelling: “ Crevier ” Information [ 44 ] The source of the informer’s information (first-hand, hearsay, and if hearsay, the source of that hearsay): The judicial

summary indicates that, “The basis of the CI’s knowledge regarding this male’s possession of the gun is outlined. It is based on direct knowledge. The CI has first-hand knowledge of the male’s possession of a firearm.” [70] The

summary also states that, “The CI has first-hand knowledge of the male’s possession of the handgun. Information about how and where the CI gained first-hand knowledge of the gun is provided.…Further details of when and how the CI gained first-hand knowledge of the gun are provided.” [71] The

summary also discloses that the informer has actually seen the handgun and indicates that the redacted portion provides information about when that occurred. [72] [ 45 ] The informer’s relationship with/to the accused and how they first came into contact: While the redacted version of the ITO is silent on this issue, the judicial

summary advises that the informer provided specific information about the male, including how long he had known him, where he knew him from and the source of his knowledge about him. [73] [ 46 ] The length of time the informer has known the accused and the frequency of the contact between them: The redacted ITO indicates only that, “The confidential source has known this suspect …” and “The CI knows a male.” The

summary, however, fleshes out that the informer provided specific information about how long he had known the male and the nature of their relationship. [74] [ 47 ] The degree of detail of the information that the informer provided to the police: The redacted ITO discloses little of the actual content of the information that the CI gave to the police. Further, the redacted references to crucial information concerning the identity of the target and the alleged illegal activity, (i.e., the handgun and trafficking in an illegal drug), are sparse, vague and generic. For example, the redacted ITO states that the male is “dealing a large amount of *** and in possession of a handgun.” The judicial

summary sheds substantial light on the degree of detail included in the unredacted ITO. Although the

summary does not replicate the details themselves, it does reveal that the informer provided the following information to the affiant: • the male was dealing a specific amount of an illegal drug; • the type of illegal drug; • the length of time that the male had been a drug dealer; • the quantity of drug transactions conducted with the male; • the nature of the drug operation; • the locations of drug deals and the reason(

s) for conducting them at those locations; • the method of the drug dealing and drug delivery; • the length of time for which the informer had knowledge of the male; • the nature and origins of the informer’s knowledge of the male; • a physical description of the male; • information about the male’s vehicle; • the source of the informer’s knowledge about the vehicle; • the fact that the handgun was possessed by the male for protection in relation to his drug business; • the colour and type of the gun and when and where the informer had seen the gun; and • the month, date and year that the male was in possession of the firearm. [75]

The redacted ITO and the judicial

summary were further supplemented by the Crown’s written response to the defence questions after the ex parte hearing, advising that, “The male knows how many types of drugs he is dealing, other persons may not know which types and if more than one type of drug is being dealt. The male would know which person knows which type of drug he is dealing.” [76] [ 48 ] The recency or timing of the information that the informer provided to the police: Neither the redacted ITO nor the judicial

summary pinpointed when the informer made the observations or gained the knowledge shared with the police. The

summary, however, discloses that the dates when the male was in possession of the firearm are specified and that they are “relatively current to this incident.” [77] The defence factum points out that no actual dates are provided and that it is “unclear” what “this incident” means. As submitted by the Crown, however, the obvious inference is that “this incident” refers to the execution of the search warrant.

Other (“Non- Crevier ”) Information [ 49 ] The specificity of the informer’s identification of Shan Latif : The redacted ITO states that, “The affiant conducted checks on the name provided by the CI and numerous police reports were revealed. On January 20, 2013, Shan Latif was stopped driving and [sic] 2007 Cadillac Escalade white in color. The licence plate on the truck was BKEM 065. Shan Latif was described as a male brown, short black hair, facial hair, 5 foot 8 inches tall, 165 pounds.

The address given was 46 Huntingwood Drive.” The only logical inference from a plain and comprehensive reading of this passage and the redacted ITO as a whole is that the CI specifically identified the target “male” as “Shan Latif.” Was the Step Six Threshold Met? [ 50 ] The materials indicate that the ITO contains extensive information and detail provided by the confidential informer concerning Shan Latif, his drug dealing business, the firearm, how the firearm was used in the drug dealing business, the relationship between the confidential informer and Shan Latif and the vehicle that he was alleged to drive.

The applicants also know that the male was described as possessing the firearm at a date relatively current to the application for the search warrant. Further, the

summary makes it clear that the source of the confidential informer’s information is first-hand. Cumulatively, the materials easily meet the requirement of informing the applicants sufficiently of the nature of the relevant information to challenge the ITO by argument or evidence.

In particular, the applicants are well situated to argue whether the types of information and details provided in the ITO attain the standard of “compelling” as conceived in Debot and the ensuing jurisprudence. (ii) Information Pertinent to Whether the Source was Credible: “ Crevier ” (“Non-Crevier”) Information [ 51 ] Whether the informer has previously provided information to the police: The redacted ITO is silent on this point but the judicial

summary advises that, in the unredacted ITO, the affiant outlines whether or not the informer’s information has or not been used in the past. [ 52 ] Whether previous information provided (if any) has led to arrests, seizures or convictions: Neither the redacted ITO nor the judicial

summary provides any indication of the outcome of any information that the informer may or may not have previously given to the police. [ 53 ] Whether past information provided by the informer has ever been proven unreliable or false: Neither the redacted ITO nor the judicial

summary comments on the reliability of information that the informer may or may not have previously given to the police. [ 54 ] 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 is appended : The judicial

summary discloses that, in the unredacted ITO, “the affiant states whether the CI has a criminal record and / or is presently before the courts.” [78] [ 55 ] Whether the informer has convictions for offences of dishonesty or against the administration of justice: Neither the

summary nor the redacted ITO indicates whether the informer’s history does or does not include convictions or charges for offences of dishonesty or against the administration of justice. [ 56 ] The informer’s motivation for speaking to police, including whether consideration was sought or arranged: The redacted ITO does not elaborate on the nature of the informer’s motivation for speaking to the police. The

summary, however, advises that “The affiant indicates whether the CI is motivated by consideration and, if so, what kind of consideration.” [79] Further, the Crown’s written response to defence questions after the ex parte hearing advises that, “If the consideration was not money this would narrow the pool to those persons facing charges. If it was money, the CI would be in possession of a large sum of money shortly after the male’s arrest.” [80] [ 57 ] Whether the informer was instructed on the penalties for giving false information: The judicial

summary advises that the unredacted ITO indicates what the informer was told about the consequences of providing inaccurate information. [81] Other Information [ 58 ] Whether the informer was a registered source with the police: The redacted ITO does not reveal any information about the CI’s status with the Toronto Police Force. The judicial

summary advises that, “The affiant states whether the CI is a registered source with the TPS.” [82] The Crown’s written response to the defence questions about the ITO provided after the ex parte hearing goes further and discloses that, “The CI is a registered source with the TPS.” [83] Was the Step Six Threshold Met? [ 59 ] Although the judicial

summary and other materials did not provide the defence with an abundance of information to use

in challenging the reliability of the source, I am satisfied that it was enough to meet the step six standard. There was a dearth of actual detail, and the defence was not ideally equipped to vigorously argue whether the confidential informer was reliable. Nevertheless, the defence was able to make submissions based on reasonable hypotheses. For example, the

summary indicates that the issuing justice would have known whether the confidential informer was motivated by consideration and, if so, what kind of consideration. Armed with this information, the defence was positioned to submit what inferences the court could or should draw from whatever consideration, if any, the confidential informer received.

The submission and the inference could be adjusted to cover, hypothetically, large sums of money or withdrawal of criminal charges. (iii) Information Pertinent to Whether the Tip Was Corroborated: “ Crevier” Information [ 60 ] Whether descriptions provided by the informer match the accused or the target location: The unredacted portions of the ITO contain some specific details provided by the informer to the affiant about the “male’s” physical description and address.

In particular, they indicate that the male lives in the city of Toronto and is approximately 5’8” tall, clean-shaven and 29-30 years old and has brown skin, short black hair, a fair complexion and a medium build. The ITO also discloses that the affiant conducted checks on the name given by the informer and discovered numerous police reports. Those reports led to details about the vehicle registered to Shan Latif’s address and his licence plate number, the address of 46 Huntingwood Drive, Toronto, and a physical description of Mr.

Latif as “male brown, short black hair, facial hair, 5 foot 8 inches tall, 165 pounds.” The judicial

summary expands on this information by disclosing that the unredacted ITO indicates whether the description of Shan Latif matched the description given by the informer and that the informer confirmed that a photo of the male matched a photo located on the MTO/Paris data base. The defence submitted that it was not known whether the male in the photograph shown to the informer was Shan Latif. A review of the redacted ITO and the

summary as a whole, however, makes it clear that this is exactly what the ITO indicates. The redacted ITO also discloses that police reports show that Shan Latif was stopped driving the 2007 Cadillac Escalade, plate # BKEM 065 on January 20, 2013. Police reports further indicated that Shan Latif had been stopped in the same vehicle five times in the City of Toronto between January 1, 2011 and February 12, 2013. Each time, he had provided the same 46 Huntingwood Drive address. Cross-examination of the affiant, D.C.

O’Connor, revealed that occurrence reports of those vehicle stops were disclosed to the defence. [84] The redacted ITO describes surveillance by D.C. MacNeil on February 11, 12:30 a.m., at 46 Huntingwood Drive in Toronto. D.C. MacNeil observed the target vehicle backed into the driveway and also saw a male who appeared to be Shan Latif come out the front door of the house without a jacket and retrieve something from the driver’s side of the vehicle. D.C. Pala surveilled 46 Huntingwood Drive at 1:00 a.m. on February 12, 2013, and observed the target vehicle parked on the driveway. [85] The judicial

summary indicates that the affiant provided information about whether the description of Shan Latif given by the CI matched the description in the police checks [86] and also the effect of the observations by the surveillance officers on the believability and credibility of the informer. [87] Other (“Non- Crevier ”) Information [ 61 ] Comparison of the CI’s account about the target male’s drug business with police information: The redacted ITO reveals little or nothing pertinent to the informer’s knowledge of the details of the male’s drug business. The judicial

summary, however, advises that the informer provided information that the male was dealing a specific amount of an illegal drug, the length of time that the male had been a drug dealer, what kind of drug(

s) the male sold, the quantity of drug transactions, the drug operation, methods used by the male in drug dealing, the quantity and price of the drugs, the price paid specifically by the informer for drugs, the locations of the drug deals between the male and the informer, whether the male was a successful drug dealer, the location of the drug deals, the delivery method of the drugs and the fact that the male had the handgun for protection of his drug business. The judicial

summary also discloses that, “The affiant compared the information provided by the informer about the male’s drug business with police knowledge and experience of the drug business in that jurisdiction.” [88] [ 62 ] Additional, undisclosed corroborative efforts: In cross-examination, the affiant, D.C. O’Connor, testified that the unredacted ITO includes information about other corroborative investigation undertaken by police that was not disclosed due to informer privilege. [89] Was the Step Six Threshold Met? [ 63 ] The materials as a whole adequately equip the defence to challenge the ITO through argument or evidence. Together, the disclosure, the ITO, the judicial

summary and the testimony of D.C. O’Connor and D.C. MacNeil provide extensive and explicit details of the corroborative investigative work done by the police. The affiant and D.C. MacNeil were both vigorously cross-examined by the defence. The sufficiency of the corroborative work done by the police and presented to the issuing justice were subjected to rigorous scrutiny and spirited attack in the defence submissions. I. Conclusion on Step Six [ 64 ] As articulated by Campbell J. in Boussoulas , “[t]here is no gainsaying the fact that the judicial

summary did not provide the accused with all, or even most, of the specific details that were in the redacted portions of the ITO.” [90] Those details were necessarily withheld in order to protect informer privilege. In the context of a Garofoli application involving information provided by a confidential informer, disclosure must balance full answer and defence, informer privilege and law enforcement. To achieve this balance, the judicial

summary need not disclose more than an indication of the nature of the redactions in the ITO. The content of the redactions is not required, as long as the judicial

summary, in combination with the other material provided to the defence, informs the accused sufficiently of the nature of the redacted material to challenge the ITO in argument and / or evidence. [91] In this case, the

summary fulfills that function. The format of the

summary enables the applicants to discern not only what kinds of details are contained within the ITO but also the location of those details within the affidavit. Further, the

summary supplies the defence with information about the redacted contents of the ITO in relation to all three of the Debot criteria. It therefore meets the Garofoli step six test. In

reaching this conclusion, I have borne in mind the additional protections recommended by Crevier in assessing an ITO that has been redacted to protect informer privilege. Consequently, I will not include any unsatisfactorily summarized details in my assessment of the sufficiency of the ITO. [92] Further, I will calibrate the weight assigned to specific components of the ITO according to the relative ability of the defence to challenge them. [93] J.

Is the ITO Sufficient to Support the Search Warrant in this Case? [ 65 ] In my view, there were reasonable grounds for the affiant to believe that Shan Latif committed the offence of unauthorized possession of a firearm and that evidence of that offence would be found at 46 Huntingwood Drive and/or the vehicle registered to Rubina Latif. The issuing justice could have issued the telewarrant on the basis of the ITO. I reach this conclusion after assessing whether the tip meets the Debot criteria.

In conducting that evaluation, I have, in accordance with my finding on step six, included information contained in the unredacted ITO. My reasons are therefore framed circumspectly and cautiously. I have also, as indicated above, restricted and calibrated my reliance on the unredacted ITO in accordance with the limitations in the judicial

summary. (

i) Was the Information Compelling? [ 66 ] As I have previously explained, the cumulative effect of the redacted ITO, the judicial

summary, the disclosure, the cross-examination of the affiant and the Crown’s response to the written questions provided by the defence gave the applicants an ample and entirely sufficient foundation upon which to argue this aspect of the Debot test. As a result, I gave full weight to the unredacted portions of the ITO in evaluating whether the tip was compelling. [ 67 ] The confidential source provided very specific, detailed first-hand knowledge of Mr. Latif’s possession of the handgun. The informer’s knowledge was gained at a time relatively current to the application for the search warrant. The nature of the information is described in the judicial

summary and included a description of the handgun and the date(

s) and location(

s) of Mr. Shan’s possession of the gun. In addition, the confidential informer gave the affiant extensive and specific information about Mr. Latif’s drug dealing business and how Mr. Latif used the handgun in relation to that business. The informer described Mr. Latif’s car and physical appearance and identified him in a photograph and disclosed the length and origins of his or her relationship with Mr. Latif. The combination of first-hand knowledge of the gun, descriptions of the drug dealing business in which it was used and the specific date(

s) and time(

s) when Mr. Latif was alleged to possess it easily fulfills the “compelling” component of the Debot criteria. [94] (ii) Was the Source Credible? [ 68 ] Although the information available to the applicants concerning the credibility of the source was sufficient to meet the step six threshold, the

summary was frugal in its details in order to protect informer privilege. As a result, the applicants were not able to make submissions, even on the basis of reasonable hypotheticals, on the following topics: • Whether previous information provided by the confidential informer, if any, has led to arrests, seizures or convictions; • Whether any previous information that may have been given by the informer has been proven unreliable or false; and • Whether any criminal record that the informer may have includes convictions or charges for offences of dishonesty or against the administration of justice. [ 69 ] On the other hand, the judicial

summary did advise the applicants of the following: • The unredacted ITO states whether the informer has a criminal record and/or is presently before the courts; • Whether the informer was motivated by consideration and, if so, what kind; • What the informer was told about the consequences of providing inaccurate information; and • The fact that he informer was a registered source with the Toronto Police Force. [ 70 ] The relatively sparse amount of information in the judicial

summary attenuated the weight that I was prepared to accord the unredacted ITO in assessing the credibility of the informer. I also refrained from considering any redacted information that was not adequately summarized. With that in mind, after reviewing those discrete portions of the ITO that were sufficiently summarized or otherwise disclosed, I find that the credibility of the tip is weak. I do not, however, suggest that the informer was patently unreliable or that his or her credibility was deeply suspect. This informer falls towards the weaker end of the credibility scale.

There is nothing inherently trustworthy about the individual to enhance the general quality or reliability of the tip. This was not, on this record, a “reliable informer.” [95] At the same time, there is nothing in the record that would or should have led the issuing justice to repudiate the informer tip out of hand. On its own, the credibility of the informer adds little or nothing to the reasonableness of the grounds for issuing the search warrant.

Its validity, therefore, depends on the strength of the other two Debot factors and the record as a whole. [96] (iii) Was the Information Corroborated? [ 71 ] Although ideal, it is not essential that the specific criminality alleged be corroborated in order to satisfy the Debot test. In fact, unlike, for example, drug cases, it may be difficult or impossible for police investigation to expressly confirm firearms possession. As stated by the Ontario Court of Appeal in R. v.

Rocha , [97] “[t]he police will rarely be able to confirm the tip to the extent of having observed the commission of the offence and that level of confirmation is not required.” At the same time, confirmation of generic, innocuous, innocent, or easily or commonly known details cannot fulfill the corroboration requirement. [98] [ 72 ] In this case, several relatively distinctive details about Shan Latif provided by the informer were confirmed by

independent police investigation. Those details included specific information about the appearance of Mr. Latif and the vehicle he used. That information was confirmed in five police reports documenting Mr. Latif driving the vehicle and giving 46 Huntingwood Drive as his home address, as well as through a police database photograph matching the description of Mr. Latif and identified by the informer. Surveillance of the residence at 46 Huntingwood Drive showed Mr. Latif coming out of the front door and retrieving something from the vehicle described by the informer.

Finally, the police compared the informer’s description of Mr. Latif’s drug business with their knowledge and experience of the drug trade in that jurisdiction. While police confirmations of general descriptions of Mr. Latif’s physical appearance and the vehicle he drove would not, on their own, lend much corroborative force to the tip, in this case, the information provided by the informer was more than innocuous. Combined with the police assessment of the informer’s description of the way Mr.

Latif conducted his drug business in comparison with local drug trade patterns, these details elevate the investigative corroboration above the generic and innocent to at least the standard of reasonableness. This determination derives in part from my review of segments of the unredacted ITO but does not incorporate any information which the judicial

summary failed to summarize sufficiently to enable the applicants to challenge it in evidence or submissions. In particular, I did not consider the “other” corroborative investigation alluded to by D.C. O’Connor in cross-examination but not disclosed in the redacted ITO for informer privilege reasons. [99] [ 73 ] The applicants alleged that the police investigation, as illustrated most starkly by the extent and nature of their efforts to corroborate the tip, was tarnished by a casual, cavalier and lax attitude. This submission analogized the police investigation in this case with the one conducted in R. v.

Sutherland . [100] In Sutherland , [101] the police committed multiple, serious oversights in their investigation and preparation of the warrant that betrayed a “pattern of laxity” or a “syndrome of lassitude,” generated by: a casual attitude towards a search warrant and a failure to be attentive to the public responsibility associated with ex parte permission to enter a dwelling, particularly, as will be referred to below, at 2:30 a.m. The familiar words “proven reliable informant” were probably inserted because they were jargon – words that a Justice of the Peace is accustomed to seeing.

When this is combined with the lack of notes as to the criminal record of the informer, the mistakes concerning both the ring and the two Michael Sutherlands and their differing records, and the failure to investigate whether the informer may have learned from the break and enter from the newspapers, the overall appearance is that truly important police work lay elsewhere.

The suggestion is that warrants can be obtained by going through the motions with the thought that if nothing is found there will be no scrutiny of the process and if evidence is found, it will be non- conscriptive and will be admitted under s. 24(2). [102] [ 74 ] To support this characterization, the applicants levelled several specific criticisms against the police investigation.

Those criticisms fell into four general categories: (1) “failure” to seek corroboration through other members of Shan Latif’s household, (2) inaccuracies in the dates and times in the officers’ surveillance notes, (3) lack of attempt to use an undercover officer to try to purchase drugs from Shan Latif and (4) the finite scope of the police corroborative investigative efforts.

For the reasons summarized below, I have concluded that those criticisms were inapt or, ultimately, not detrimental to the integrity of the investigation. (1)“Failure” to seek corroboration through other members of Shan Latif’s household:” [ 75 ] I agree with Crown counsel that this does not represent a flaw in the investigation. It was Shan Latif and not his parents or his brother who was the target of the investigation and the subject of the informer’s tip. There was no reason for the police to investigate “around” Shan Latif.

(2) Inaccuracies in the dates and times in the officers’ surveillance notes : [ 76 ] The applicants made much of what could be interpreted as discrepancies in the timing of the surveillance by P.C. Pala and P.C. MacNeil and when they communicated the results of the surveillance to D.C. O’Connor. Further, the applicants alleged that P.C. MacNeil perjured himself about his notes and the dates after learning that they had become an issue on this application. After intensive scrutiny of the notes in question and the testimony of D.C. O’Connor and P.C. MacNeil, I am satisfied that there was nothing sinister about the drafting of the notes, the police

interpretation of the notes or the explanations provided in court for the errors. The mistakes were minor recording errors based on oversights such as forgetting to write one number or writing the wrong number. The notes were not letter perfect, but the substance of the information communicated from one officer to the other and relied upon by the affiant was accurate. Though unfortunate, these errors were not, in my view, fatal to the integrity of the investigation. Moreover, they did not and could not skew or distort the record available to the issuing justice.

(3) The investigation did not include using an under cover officer to attempt to purchase drugs from Shan Latif : [ 77 ] This was a gun investigation, not a drug investigation. Also, as D.C. O’Connor testified, it was not appropriate to risk assigning an undercover officer to try to purchase drugs when the police believed that Mr. Latif had a handgun. [103] D.C. O’Connor’s response was reasonable and appropriate.

(4) Finite scope of the corroborative efforts made by the police : [ 78 ] The cross-examination of D.C. O’Connor contained several references to things that he did not do. He did not, for example, limit corroborative investigation with a view to protecting information from disclosure because he was using a confidential informer. [104] He did not seek out more corroboration because the target location was a dwelling house. [105] There is no question that D.C.

O’Connor could have made further corroborative efforts and his statement that he did not intensify his investigation out of respect for the enhanced privacy of a dwelling house is unfortunate. [106] On the other hand, D.C. O’Connor maintained, fairly, that the degree of investigation, corroborative or otherwise, that he undertook in pursuing the tip that Shan Latif possessed a firearm, was proportionate to the scope of that tip and the alleged criminal conduct that it alleged. Further, on multiple occasions during his cross-examination, D.C.

O’Connor suggested that he took additional corroborative steps but could not disclose them in court at the risk of narrowing the pool and breaching informer privilege. [ 79 ] I conclude that, while the police investigatory and corroborative efforts may not have been exhaustive, they also did not demonstrate a pattern of laxity, neglect or dishonesty. There is nothing about the manner in which the corroboration relied upon by the

affiant was obtained or presented that could or should have detracted from its reasonableness in the issuing justice’s consideration of the Debot factors. (iv) The ITO is Sufficient to Support the Search Warrant: [ 80 ] I am satisfied that there was sufficient information in the ITO to permit the Justice of the Peace to conclude that there were reasonable grounds to justify the issuance of the warrant. The credibility of the tip was weak and the corroboration was adequate. The content of the tip was, however, extremely compelling.

The ITO, contextualized within the totality of the circumstances, enabled the Justice to properly conclude that there was a credibly based probability that Shan Latif possessed a firearm at the residence and in the vehicle.

There was, accordingly, no breach of s. 8 of the Charter . (III) CHARTER S. 24(2) [ 81 ] In the event that I have erred in my s. 8 conclusion, I will briefly address whether the fruits of the search should be excluded pursuant to s. 24(2) of the Charter . [ 82 ] The applicants bear the burden of establishing that, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. In determining whether that burden has been met, I must assess the long-term effect of admitting the evidence on the public’s confidence in the justice system.

To do so, I must balance the seriousness of the Charter -infringing state conduct, the impact of the breach on the accused’s Charter -protected interests and society’s interest in adjudication on the merits. [107] A. Seriousness of the Charter -infringing State Conduct [ 83 ] The quality and diligence of the police investigation and conduct were vigorously challenged by the applicants. That challenge exposed some flaws in the investigation and errors in notes. [108] As indicated above, the mistakes were minor and inadvertent.

The applicants also correctly emphasized that the ITO was heavily redacted and informer privilege was invoked to leave some portions of the ITO unsummarized and opaque. I have found, however, that the police never intentionally presented or relied upon false or misleading information. While the investigation was imperfect, it did not display a pattern of laxity, carelessness or negligence. The redactions and unsummarized portions of the ITO were essential to protect informer privilege.

Thus, in the circumstances of this case, if the ITO was deficient, it “missed the mark by very little.” [109] The search was conducted pursuant to a presumptively valid warrant, obtained and executed in good faith. [110] I would therefore place the seriousness of the Charter-infringing state conduct towards the more minor end of the scale. [111] Accordingly, this branch of the test favours admission of the evidence. B. Impact of the Breach on the Charter - Protected Interests of the Accused [ 84 ] The search breached the privacy of the applicants’ home.

The safe where the contraband items were found was located in Rubina and Mohammad Latif’s bedroom. The violation of that residential sanctity significantly affected the applicants’ s. 8 interests. The impact of the breach would therefore militate strongly in favour of exclusion of the evidence. [112] C. Society’s Interest in Adjudication on the Merits [ 85 ] As appropriately conceded in the applicants’ factum, “[t]he discovery of the loaded firearm, the ammunition and the prohibited devices is reliable and strong evidence of the Applicant Shan Latif’s guilt in particular on one or more of the offences charged.

In light of the seriousness of the offences, society’s interest in the adjudication of the case favours the admission of the evidence.” [113] D. Balancing [ 86 ] The negative impact of the police intrusion of the Latifs’ home on their Charter -protected privacy interests is deeply significant in determining the effect of admitting the evidence on the repute of the administration of justice. At the same time, the police were acting in good faith on the basis of a presumptively valid warrant. The evidence seized was highly reliable and vital to the prosecution case.

To exclude the evidence in these circumstances would, in my view, adversely affect the public’s confidence in the administration of justice. Accordingly, in the event that the applicants’ s. 8 rights were violated, I would admit the evidence pursuant to s. 24(2) of the Charter . (IV) CHARTER s. 7, s. 11(

d) AND s. 24(1) [ 87 ] The applicants submit that the extensive redactions in the ITO violate their right to full answer and defence. As a remedy, they contend that I should either refuse to entertain the step six application or exclude the results of the search. This submission must fail, given my conclusion that the judicial

summary was sufficient to support resort to step six. The applicants had enough information to challenge the ITO in evidence and submissions. There was no violation of their s. 7 or s. 11(

d) Charter rights. (

V) AMICUS [ 88 ] The applicants proposed the use of amicus to assist the court with all areas of the Garofoli application, including attending any in camera hearings, making submissions in relation to the judicial

summary and considering lines of cross-examination of the affiant. The premise was that amicus would be armed with knowledge of the applicants’ case and the defence brief.

[ 89 ] The jurisprudential foundation for the proposal was Fish, J.’s assertion in R. v. Basi [114] in the context of an informer privilege hearing, that In appropriate cases, fairness may require the court to provide the defence with a redacted or summarized version of the evidence presented ex parte – edited to eliminate any possibility of disclosing the informant’s identity – so as to permit the trial judge to receive additional submissions from the defence on whether the privilege applies in the particular circumstances of the case.

In particularly difficult cases, the trial judge may appoint an amicus curiae to attend the ex parte proceeding in order to provide assistance in assessing the claim of privilege. In the present case, permitting defence counsel to make submissions and to propose questions to be put by the court to the witnesses at the ex parte hearing might well have been appropriate. The trial judge, however, will be in a better position to decide how best to craft safeguards that mitigate any potential unfairness arising from the ex parte nature of the proceedings.

The adoption of appropriate initiatives is therefore best left to the trial judge. [115] The applicants contended that this was a “particularly difficult case” due to the extent of the editing of the ITO, justifying appointment of amicus as envisioned in Basi . [ 90 ] I determined that this was not a “particularly difficult case.” Rather, this case presented an assortment of challenges typical to Garofoli step six applications. The ITO was heavily redacted to protect informer privilege. It was therefore necessary to craft a judicial

summary as a tool in ascertaining whether the defence had a sufficient foundation to challenge the ITO in evidence and / or submissions. The process of finalizing the

summary required caution and customization to avert the risk of narrowing the pool or identifying the informer. The judicial function of crafting summaries, as set out by the Ontario Court of Appeal in Crevier , [116] is one that trial judges are increasingly called upon to perform. The intersection of the rights to full answer and defence, informer privilege and Charter s. 8 reviews of search warrants are ubiquitous in criminal trials.

The jurisprudence, as furthered by Crevier, [117] has created an expectation that trial judges take on the challenge of navigating this complex terrain within the context of step six applications. There may be cases where the issues are so polarized or the circumstances are so distinctive that amicus is essential to the performance of this judicial function. Such cases will be rare and this is not one of them. [ 91 ] In reaching this conclusion, I was assisted by the analysis employed by Patillo, J, in R. v. Thompson [118] in similar circumstances.

The accused in Thompson suggested the appointment of amicus to assist the court in determining whether the information before the issuing justice was sufficient to issue the search warrants. Patillo, J. explained his reasons for rejecting the suggestion as follows: First, I did not consider such appointment to be essential to enable me to discharge my judicial function on the Application. While the task is not without its challenges, in my view, the procedure set out in Garofoli is satisfactory. Further, and as pointed out in Ontario v.

Criminal Lawyers Association of Ontario , 2013 SCC 43 (S.C.C.) , the appointment of an amicus is to be used sparingly and with caution in response to specific and exceptional circumstances. Given the procedure set out in Garofoli , I am not sure what role an amicus could play. Secondly, … the amicus would effectively be clothed with the duties and responsibilities of Applicants' counsel. Once that happens, in my view the amicus ceases to be a friend of the court.

In such a situation, because informer privilege is involved, the amicus would then be outside the circle of privilege and not entitled to obtain the information he or she was appointed to obtain. [119] As in Thompson , [120] I am not persuaded that appointing amicus in the instant case would assist the court in any significant or pertinent way in discharging its judicial function of adjudicating the step six application. (VI) CONCLUSION [ 92 ] There was no breach of the applicants’ Charter rights. Even if there had been a breach, I would not have granted a remedy pursuant to s. 24 of the Charter.

Released: February 29, 2016 “Justice M.H. Bloomenfeld”