R v Pilbeam, 2018 MBCA 128

Citation: R v Pilbeam, 2018 MBCA 128 Date: 20181206 Docket: AR17-30-08942 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN: ) E. J. RoitenbergHER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) M. V. P. Cornick ) for the Respondent- and - ) ) Appeal heard:matthew john pilbeam ) October 22, 2018 ) (Accused) Appellant ) Judgment delivered: ) December 6, 2018 mainella JA Introduction [1] This is an appeal about the review of a search warrant.

It also provides an opportunity to clarify how disclosure ofinformation from a confidential informant to the authorising judge or justice should occur. [2] The accused appeals his conviction for possession of cocaine for the purpose of trafficking after a trial in theProvincial Court. Drugs and related drug-trafficking paraphernalia were seized from his residence pursuant to a drug search warrant.

The substance of the four-page information to obtain the search warrant (the ITO) was based entirely on information provided by aconfidential informant (the CI) to a police officer with the Winnipeg Police Service (the officer). [3] The accused alleged that the issuance of the search warrant was an unreasonable search contrary to

section 8 of theCanadian Charter of Rights and Freedoms. The trial focussed on a facial challenge to the search warrant as to whether the record beforethe authorising justice was sufficient to make out the statutory pre-conditions (see World Bank Group v Wallace, 2016 SCC 15 at para120). The evidence on the voir dire consisted of the unredacted ITO without any amplification evidence (see R v Morelli, 2010 SCC 8 atparas 41-43).

The accused conceded that the ITO established that the officer had a subjective belief of reasonable grounds to believethat, if issued, the search warrant would afford evidence of a drug offence.

In dispute was whether an objective assessment of thegrounds relied on by the officer in the ITO justified the issuance of the search warrant. [4] In his decision on the Garofoli review (see R v Garofoli, (SCC), [1990] 2 SCR 1421 at 1452), thetrial judge concluded that, based on his assessment of the totality of circumstances disclosed in the ITO, the authorising justice “couldhave found reasonable grounds” to issue the search warrant. The accused says that the trial judge erred in coming to that conclusion foressentially two reasons.

First, he argues that, on its face, the ITO failed to disclose sufficient information to establish the necessary“reasonable grounds” to issue the search warrant (section 11(1) of the Controlled Drugs and Substances Act, SC 1996, c 19). Second, hesubmits that deficiencies in the officer’s drafting of the ITO undermined the weight that should have been given to the CI’s information. [5] For the following reasons, I would dismiss the appeal.

Discussion and Conclusion Nature of a Garofoli Review and the Standard of Review on Appeal [6] The deferential nature of a Garofoli review is well known (see R v Deol, 2006 MBCA 39 at paras 6-8). There is apresumption of validity as to a search warrant and the sworn information supporting it (see R v Collins (1989), (ONCA), 48 CCC (3d) 343 at 356 (Ont CA)).

The accused bears the burden of demonstrating, on balance, that the ITO is insufficient toestablish reasonable grounds (see R v Campbell, 2011 SCC 32 at para 14). [7] Warrant review “involves a contextual analysis, not a piecemeal approach to individual items of evidence shorn oftheir context” (R v Beauchamp, 2015 ONCA 260 at para 85). Like a painting or photograph, an ITO’s meaning can only be properlyunderstood if it is considered as a whole. Reviewing judges should be skeptical of attempts to deconstruct an ITO by looking at itsaspects in isolation. Such an approach is an error in principle.

Rather, the reviewing judge is to assess the facts and the reasonableinferences available by taking a “practical, non-technical, and common-sense” assessment of the totality of the circumstances (R vWhitaker, 2008 BCCA 174 at para 42, leave to appeal to SCC refused, 32657 (30 October 2008); see also R v Evans (ED), 2014 MBCA44 at para 10). [8] The reviewing judge’s important, but limited, responsibility is to decide whether the record before the authorisingjudge or justice, as corrected and amplified on the review, provides “any basis upon which the authorizing judge [or justice] could besatisfied that the relevant statutory preconditions existed” (R v Pires; R v Lising, 2005 SCC 66 at para 30; see also Garofoli at p 1452; Rv Araujo, 2000 SCC 65 at para 51; Morelli at paras 40-43; Campbell at para 14; and R v Vu, 2013 SCC 60 at para 16). [9] Appellate deference will be afforded to a decision made on a Garofoli review absent a failure to apply the correctstandard or other error in principle, a misapprehension of the evidence, or a failure to consider relevant evidence (see Evans at para 20; Rv K (T), 2014 MBCA 97 at para 8; and R v Do, 2018 MBCA 50 at para 16).

Sufficiency of the ITO [10] A search warrant is valid where the totality of the circumstances set out in the ITO discloses reasonable grounds tobelieve that an offence has been committed and that evidence of that offence will be found at the specified time and place (see Whitakerat para 41; Morelli at para 40; and Campbell at para 14). [11] The concept of ‘reasonable grounds to believe’ is a compromise for accommodating the differing interests of privacyand law enforcement. This legal standard is grounded in objective facts that stand up to independent scrutiny (R v MacKenzie, 2013 SCC50 at para 74).

Reasonable grounds to believe is something more than mere suspicion but something less than the existence of a primafacie case, proof on a balance of probabilities or the standard required for a conviction (see R v Debot, (SCC), [1989] 2SCR 1140 at 1166; R v Shinkewski, 2012 SKCA 63 at para 13; and R v Jacob (JA), 2013 MBCA 29 at para 34).

As was explained inMugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40, “reasonable grounds will exist where there is an objectivebasis for the belief which is based on compelling and credible information” (at para 114). [12] A judge conducting a Garofoli review must be mindful that there is no clearly defined formula as to when “credibly-based probability replaces suspicion” (Hunter v Southam Inc, (SCC), [1984] 2 SCR 145 at 167). It is a threshold thatcannot be measured in the same way as other phenomena, such as the freezing point of water or the speed of sound.

Judges canreasonably disagree as to whether a particular set of facts is sufficient to establish reasonable grounds to believe (for example, comparethe disagreement between the four judges in the majority (see para 49) and the three judges in the minority (see paras 82-85) in R vMacDonald, 2014 SCC 3, as to whether, on the facts of that case, there were reasonable grounds to believe a suspect was armed anddangerous).

That is why the standard on a Garofoli review is deferential. [13] The reviewing judge should also be wary of placing too much weight on prior decisions as to whether a particular set ofcircumstances was sufficient or insufficient to establish reasonable grounds to believe. As Cory J observed in Canadian BroadcastingCorporation v New Brunswick (Attorney General), (SCC), [1991] 3 SCR 459, “all factors should be evaluated in light ofthe particular factual situation presented. The factors which may be vital in assessing the reasonableness of one search may be irrelevantin another” (at p 478).

I agree with the comment of Huband JA in R v Blackbird (1988), (MB CA), 44 CCC (3d) 95(Man CA), that, “Each case must be decided on its own particular facts” (at p 96). [14] Where the reasonableness of a search rests on the sufficiency of information provided by a confidential informant, theassessment of whether the totality of the circumstances provides reasonable grounds requires consideration of: (

i) whether the information predicting the commission of a criminal offence was compelling; (ii) whether the source of that tip is credible; and (iii) whether the information has been corroborated by police investigation prior to making the decision to conduct the search (seeDebot at p 1168; and R v Pilkington (C), 2016 MBCA 80 at para 29). This is not a “formulaic test” (Garofoli at p 1457).

No one factor is determinative; weakness in one of the three areas can, to someextent, be compensated for by strength in the other two (see Debot at p 1168; and R v Burke, 2011 NBCA 51 at paras 18-19). [15] Based on my review of the trial judge’s reasons, I am satisfied that he applied the correct deferential standard to reviewthe sufficiency of the ITO.

He also properly directed himself on the factors to weigh to assess the reliability of the CI’s information inhis assessment of the totality of the circumstances. [16] In terms of how compelling was the CI’s tip, I see no basis to interfere with the trial judge’s finding that this was not acase where “rumor or gossip from the street [was] being passed on to the police.” The information could be considered compelling

because it was first-hand, recent and had a degree of detail. The CI was knowledgeable about the drug sub-culture and its practicesbecause of his or her involvement in it which is a relevant contextual fact (see R v Caravaggio, 2012 ONCA 248 at para 4; and R vRocha, 2018 ONCA 84 at para 24). While the ITO contains the general assertion from the CI that the accused was regularly sellingcocaine for the last six months, without an explanation of how the CI knew that fact, the CI provided more specific sourced informationof criminality.

The key paragraph of the ITO stated: Within the past 72 hours, [the CI] was inside of [the accused’s] residence of 634 Chalmers Avenue at which time he/she observedapproximately 2 ounces of cocaine within the residence. [The CI] provided me with the exact location of the cocaine, however this willnot be disclosed in fear of identifying [the CI]. [17] It was also open to the trial judge to view the CI as a credible source. The CI was not anonymous or untried; he or shewas a proven reliable informant. According to the ITO, there were indicia of the CI’s reliability (see Garofoli at p 1457).

Previously,the CI had “never” provided information that turned out to be “false or unreliable.” In the past, the CI had provided general informationabout the drug trade in Winnipeg known by police to be “true and accurate” because it had been confirmed from other investigativesources.

As well, the CI had given specific information that had led to “several arrests, seizures of drugs and Canadian currency.” In acase where police rely on an anonymous or untried informant, the quality of the information provided and the existence of corroborativeevidence will be of greater concern on the Garofoli review than in the case where the informant has a proven track record, as is the casehere (see Debot at pp 1170-71; R v Duncan (W), 2004 MBCA 64 at para 29; R v Pilkington (No 1), 2013 MBQB 79 at paras 57-58; andR v Zettler, 2015 ONCA 613 at para 7). [18] The one concern I would raise is the trial judge made the observation that it was “[i]mplicit in that relationship”between the officer and the CI that the CI would “only receive consideration for providing accurate information.” That may be the case,it also may not be; the ITO is silent on this point.

Reasonable inferences may be drawn when reading an ITO but an inference must havesome evidentiary basis in the ITO (see Vu at para 16). It does not strike me as “obvious” (ibid) as to what the historic relationship wasbetween the CI and the officer in the absence of more particulars. That said, my concern does not rise to the level of a palpable andoverriding error by the trial judge in misapprehending the evidence.

The ITO provides ample evidence reasonably supporting hisconclusion that the CI was a credible source. [19] I am also not persuaded by the submission that the trial judge erred in determining that the steps the police took toconfirm the CI’s information was, in part, as he put it, “further evidence” of the reliability of the information despite that the facts in theITO from the police about the accused were of a “non-criminal” nature. [20] The starting point is that the police are not expected to confirm every aspect of a confidential informant’s tip (see Debotat p 1172).

Nor is it necessary that police corroborate the very criminality of the information given by the tipster (see R v Lewis (1998), (ON CA), 122 CCC (3d) 481 at para 22 (Ont CA); and R v Dunkley, 2017 ONCA 600 at para 15). What is relevant iswhether the nature of the confirmatory evidence is such that it is reasonably open to the authorising judge or justice to infer that, becausethe confidential informant is proven correct on some details, it is safe in the circumstances to rely on other information provided (see R vCaissey, 2007 ABCA 380 at para 24, aff’d 2008 SCC 65).

If evidence “build[s] trust” in the confidential informant or his or herinformation, it may be considered confirmative (Pilkington (No 1) at paras 68-74). [21] Leaving aside the fact that the CI had recent first-hand knowledge of criminal activity in the accused’s residence andhad a proven track record of providing true and accurate information about drug crimes, the steps police took to confirm the CI’sinformation reasonably allowed for further trust to be given to the CI and his or her information.

Through searches of two computerdatabases containing police or government information, the officer confirmed that the accused’s most recent address was where the CIsaid the accused lived. The officer drove to that address and confirmed it matched the description the CI provided. The CI identified aknown picture of the accused. While none of these confirmatory facts implicated the accused in drug trafficking, they were confirmativeof the CI and his or her information, albeit to a limited degree, as opposed to discrediting the CI or his or her information. [22] In

summary, it was reasonably open to the trial judge to find that the ITO, when read as a whole, disclosed acompelling tip of criminal activity at the accused’s residence from a credible source despite there being minimal police corroboration ofthe tip. Alleged Deficiencies in the Drafting of the ITO [23] I have also not been convinced by the argument that the officer’s drafting of the ITO was contrary to his duty of full,fair and frank disclosure of the material facts in support of the ex parte application (see Araujo at para 46; Morelli at para 58; and Evansat para 18).

The accused points to several missing facts from the ITO that he says are material and should have caused the trial judge tohave concern about the strength of the CI’s information. [24] First, in terms of the compelling nature of the tip, the accused says, instead of refusing to disclose in the ITO where inthe accused’s residence the CI saw the cocaine due to a fear of compromising the identity of the CI, the officer could have put theinformation in the ITO and then moved to seal it pursuant to

section 487.3 of the Criminal Code (the Code). [25] Second, in terms of the reliability of the source, while the officer mentioned in the ITO that the CI’s prior informationhad led to “several arrests,” the accused argues that he failed to mention if that prior information had led to the issuance of searchwarrants or convictions. He also criticises the refusal of the officer to disclose whether the CI had a criminal record.

The officer statedin the ITO, “I cannot confirm if [the CI] does or does not have a criminal record as this may identify and endanger [the CI].” Again, theaccused submits that a sealing order could have addressed any concern about compromising the CI’s identity.

Notwithstanding thecomments of the Ontario Court of Appeal in R v Medina-Mena, 2007 ONCA 377 at para 1, the accused asserts in his factum, “whether aperson has or does not have a criminal record will rarely be an identifying feature.” Finally, he says the officer deposed that the CI was“requesting consideration” for the information provided but the officer did not specify the nature of that consideration in the ITO. [26] In my view, it is unnecessary to address each of the alleged shortcomings of the ITO.

As is not uncommon, with thebenefit of hindsight and the insight of an experienced legal mind, it can be confidently stated that the officer could have provided more

information in the ITO, been more precise and improved the ITO’s overall drafting (see James A Fontana & David Keeshan, The Law ofSearch and Seizure in Canada, 10th ed (Toronto: LexisNexis, 2017) at 119). [27] I agree with counsel for the accused that the officer could have taken a different approach to protect the CI’s identity bydisclosing more information about the CI and his or her information in the ITO and moving to seal it pursuant to

section 487.3 of theCode.

The reticence of a police officer in sharing information about a confidential informant with the authorising judge or justice forreasons of an informer’s safety can lead to “serious problems” in the review of the warrant where the credibility of the police officer willlikely be impugned because of the non-disclosure (Robert W Hubbard, Peter M Brauti & Scott K Fenton, Wiretapping and OtherElectronic Surveillance: Law and Procedure (Toronto: Thomson Reuters, 2017) (loose-leaf updated 2018, release 61), ch 4 at 4-73 to 4-75; and R v Lucas, 2009 CarswellOnt 3082 at para 23 (Sup Ct J), aff’d 2014 ONCA 561). [28] The state of the law after many years of litigation about the treatment of informant information in a Garofoli reviewboils down to the simple reality that the state cannot have its cake and eat it too in matters such as this.

The authorising judge or justiceis part of the “circle” of informant privilege (R v Brassington, 2018 SCC 37 at para 41; see also R v Barros, 2011 SCC 51 at para 37). They are entitled to access the information and are legally obligated to safeguard it (see R v Y (X), 2011 ONCA 259 at para 1). [29] If the police make the choice to pursue prior judicial authorisation to conduct an investigative search based oninformation from a confidential informant, the consequence is that the material information about or from the confidential informantmust be disclosed to the authorising judge or justice.

The obligation of making full, fast and frank disclosure requires that theauthorising judge or justice knows the “true state of affairs” (R v Thomson (K), Thomson (R), Hately (S), Farrington, Guilbride, Hately(

J) and Goyer, 2006 BCCA 392 at para 50). There is no good reason that that should not occur because the procedure described inGarofoli (see p 1461) is designed to reconcile the interests of law enforcement, the protection of informers and the accused’s right tomake full answer and defence (see R v Crevier, 2015 ONCA 619 at paras 41-90). [30] I share the view articulated by both counsel on this appeal that an ITO drafted as it was in this case should not becommonplace.

In coming to that conclusion, I am sensitive to the fact that it is not for this Court to play armchair detective from thetranquility of the courthouse and dictate requirements as to how a clear and concise ITO is to be drafted that fulfills a police officer’sduty of full, fair and frank disclosure because the drafting of an ITO requires the exercise of significant judgement, often incircumstances of some urgency (see R v Ebanks, 2009 ONCA 851 at paras 43, 54). [31] However, what the Courts expect is that any information that may tend to identify a confidential informer be protectedin an ITO in such a way that maximises “accountability and accessibility” (R v McKay, 2016 BCCA 391 at para 150).

This means thatall of the material information about or from the confidential informant relevant to the statutory pre-conditions to issue a search warrantneeds to be disclosed, unedited, to the authorising judge or justice and, later, after input is sought from the police by the Crown, aredacted version of the ITO will be disclosed to the defence upon request.

The failure of the police to follow such an approach is notgrounds by itself for a successful challenge to a search warrant, but likely will invite such a challenge given what is typically expected ofthe police. [32] However, in this case, none of the suggested flaws raised by the accused with the ITO means that, as it was drafted, itfailed to provide sufficient reasonable grounds to issue the search warrant when it is read as whole in a practical, non-technical andcommon-sense manner (see Pires at para 30; and R v Green, 2015 ONCA 579 at para 18).

There was no subfacial challenge to thesearch warrant that the record before the authorising justice “did not accurately reflect what the [officer] knew or ought to have known,and that if it had, the [search warrant] could not have issued” (World Bank Group at para 120).

The fatal flaw with the accused’ssubmission is that there is a complete absence of any evidence in the record establishing that any of the omitted information complainedof was consequential to the statutory preconditions to issue the search warrant such that the officer was not “honest and diligent” in thedrafting of the ITO (Evans at para 18; see also R v Hebert, 2002 CarswellOnt 2786 at para 5 (CA)). [33] I also disagree with the submission that the trial judge abdicated his responsibility to undertake a meaningful review ofthe ITO by accepting the officer’s claim of informant privilege over some of the information provided by the CI and his or her criminalbackground (if any).

It is well accepted that a valid concern about revealing the identity of a confidential informant can arise from eventhe “smallest details” (R v Leipert, (SCC), [1997] 1 SCR 281 at para 18). [34] In my view, the trial judge did not err in accepting that the officer’s sworn assertion of informer privilege in the ITOwas anything but valid and done in good faith. There was no evidence to the contrary.

The printed word of the ITO does not reasonablysupport a conclusion that the officer was deliberately artful in his description of the CI’s background or information so as to deprive theauthorising justice of “the ability to independently assess the sufficiency of the ITO” (R v Rocha, 2012 ONCA 707 at para 35). Heexplained the nature of the information that was not being disclosed and the lawful reason for non-disclosure.

Ultimately, he ran the riskthat over-editing the information about or from the CI, before the search warrant was issued, could have caused the authorising justice torefuse the application because of insufficiency. [35] There is also no evidentiary basis to conclude that facts that bore on the substance of the application for the searchwarrant were withheld from the authorising justice such that it could be said that there was a material non-disclosure (see Pilkington (C)at para 25).

In the absence of cogent supporting evidence that a material non-disclosure did occur, to make such an assumption would beentirely speculative and contrary to the presumption of validity of a search warrant. [36] Ultimately, I have come to the conclusion that the accused’s appeal must fail because of the appellate standard ofreview.

The comments of Watt JA in R v Nero, 2016 ONCA 160, leave to appeal to SCC refused, 36984 (14 July 2016), apply equallyhere (at para 84): Finally, the standard of review applied on appeal from findings made on a Garofoli application does not permit a microscopic re-examination of individual components of the ITO as the appellant urges. The motion judge was required to consider the ITO as a wholeand to determine whether the ITO contained sufficient reliable evidence that might reasonably be believed on the basis of which theproduction order could have issued.

An appeal from that finding is not Garofoli nouveau or Garofoli redux. Absent an error in the

statement of the test, a misapprehension of relevant evidence or a misapplication of principle, an appellate court is disentitled to intervene. That is this case. [ 37 ] In the result, I would dismiss the appeal. JA I agree: JA I agree: JA