)) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 7323

CITATION: R. v. Grant, 2013 ONSC 7323 COURT FILE NO.: 13-90000234/0000 DATE: 20131127 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – EDDY GRANT Defendant )))))))) ) ) Peter Campbell, for the Crown Peter Bawden, for Eddy Grant HEARD: November 6, 2013 goldstein j. SUPPLEMENTARY REASONS FOR JUDGMENT Background [1] On October 30, 2013 I dismissed an application on behalf of Mr. Grant to exclude evidence pursuant to sections 8 and 24(2)of the Canadian Charter of Rights and Freedoms: R. v. Grant, 2013 ONSC 6792 . The evidence consisted of cash and drugs. The evidence was seized from Mr.

Grant’s home pursuant to a search warrant obtained by the Toronto Police Service. [2] The information to obtain the warrant was heavily dependent upon information supplied by a confidential informant. Asignificant amount of that information was edited from the ITO prior to disclosure. Crown counsel, Mr. Campbell, supplied a draftjudicial

summary of the edited information to Mr. Bawden. Counsel agreed that I was to apply Step 6 of the Garofoli process: R. v.Garofoli, (SCC), [1990] 2 S.C.R. 1421 at para. 68. [3] In my ruling I found that there was sufficient material placed before the issuing justice such that the warrant could have beenissued. I also found that the draft judicial

summary was sufficient for Mr. Bawden to make full answer and defence on behalf of Mr.Grant. [4] After my ruling, Mr. Bawden asked me to issue a subpoena to the TPS to obtain the informant file. His position was thatsince he could not view the material in the file, it was incumbent on me, as the trial judge, to do so in order to ensure that the police hadcomplied with their own informant procedures and to be sure that there continues to be a basis upon which the issuing justice could haveissued the warrant.

It is also, he argues, incumbent on me to ensure that the police had not misled the issuing justice about thereliability, or otherwise, of the informant. [5] Mr. Bawden did not make this suggestion in his original argument and he was quick to say that he did not quibble with theCourt’s ruling. His position was that since the procedures for dealing with Step 6 of the Garofoli process are evolving, this is a naturalstep in that evolution. I agree with Mr. Bawden that the process is evolving, which is why I agreed to let him make the argument after Ihad issued my ruling.

I certainly do not fault him for bringing the application in this manner. [6] I heard the supplementary application for a subpoena on November 6, 2013. Mr. Bawden’s position is that Step 6 ofGarofoli represents a fundamental shift in the law of search and seizure towards a quasi-inquisitorial approach. Mr. Bawden suggeststhat because an accused person otherwise has no ability to test the information, it is the Court’s responsibility to do so. [7] I respectfully disagree with Mr. Bawden. Step 6 of the Garofoli process is not a revolution that substantially alters theadversarial system.

Step 6 conforms to the classic response of the common law to the tension between competing rights and values. Ifind that in the absence of a basis upon which a court could order disclosure, I would simply be subjecting the police to a form of randomvirtue testing. That is not the Court’s role. The Court’s role remains to try cases based on evidence and submissions brought forward bythe parties. The application is therefore dismissed for the reasons set out below.

Analysis [8] Boiled to its essence, Mr. Bawden says that previous cases dealing with this issue are not binding because Step 6 of theGarofoli process was not engaged. He very specifically disavows any intention of seeking disclosure of anything that might tend toidentify the informant. In fact, he says he does not want to see anything at all in the informant file. He asks, instead, that the Courtreview the file to determine whether the sub-affiants provided the affiant with correct information about the informant.

He argues thatStep 6 of the Garofoli process represents a revolution in the law of search and seizure. The role of the trial judge, he argues, hasfundamentally changed from neutral arbiter to inquisitor because there is no other way to ensure fairness to the accused since the right tomake full answer and defence is so attenuated. [9] I have not considered the minimal pre-requisite for the issuance of a subpoena, because it does not engage the real issues. The real issues would undoubtedly be litigated on a more substantive basis upon the return of the subpoena. Those issues are:

(1) Is there a basis upon which a judge should decide to review an informant file?

(2) Should a trial judge take on an inquisitorial role and examine the material in the informant file? 1. Is there a basis upon which a judge should decide to review an informant file? [10] The threshold question raises the equivalent of a disclosure issue. In my view, unless the defence can demonstrate that thematerial could be useful to the defence, a judge should go no further. A judge should not conduct an in camera review of the materialsought. [11] Wein J.’s decision in R. v. D.D.F., [2006] O.J. No. 358 (Sup.Ct.) is of great assistance in deciding this threshold question.

Inthat case, defence counsel argued that the court should review confidential material relating to the reliability of the informant in order todetermine what use defence might be able to make of it. Wein J. succinctly rejected that view: 34 With respect to the separate argument that there is a potential use of the information on any of the Charter applications to bebrought, the defence speculates that the information might affect the assessment of credibility of Constable Barnett. For example, hemight be shown to be lying about the informant's giving of information in other cases.

This is pure speculation that cannot properly forma basis for overriding the privilege. See R. v. Chiarantano, [1990] O.J. No. 2603 (C.A.) at para. 20, aff'd (SCC), [1991]1 S.C.R. 906, where it was stated that "informer privilege is subject only to one exception, known as the innocence at stake exception".Chiarantano was referred to with approval in Liepert, where the court noted (at paragraph 21) that "if speculation sufficed to remove theprivilege, little if anything would be left of the protection which the privilege purports to accord". [12] In R. v.

Ahmed 2012 ONSC 4893 the defence sought the underlying notes of informant handlers in a large and complexwiretap investigation.

MacDonnell J. summarized the reason for the defence request as follows: [14] …. the Applicants “wanted to confirm that the affidavit accurately, authentically, and reliably summarizes the informationallegedly obtained from the CS’s [confidential sources].” With disclosure of the notes, the Applicants “will be able to ensure thatinformation allegedly provided by the 28 CS’s is accurately reflected in the affidavit”… [13] In a very thorough and detailed analysis, MacDonnell J. dismissed the application. He noted that the right to disclosure is acomponent of the right to make full answer and defence.

The right to make full answer and defence certainly does apply at a Garofolihearing, but it may not have the same content and meaning as the right to full answer and defence at a trial on the merits: [29] To say that the right to disclosure applies to a Garofoli hearing is not to say that the content of the right and the circumstances underwhich it will be triggered will be the same as at trial. The right to disclosure is a component of the broader constitutional right to makefull answer and defence. The right to cross-examine witnesses is also a component of that broader right.

What was in issue in Pires waswhether the Garofoli leave requirement unjustifiably limited the right to make full answer and defence. In holding that it did not, JusticeCharron explained that the content of the right to full answer and defence will depend on the context in which it is invoked… [14] MacDonnell J. found that the approach to disclosure should mirror the approach to the right to cross-examine an affiant: thedefence must show some basis for believing that there is a reasonable possibility that the disclosure will be of assistance on theapplication.

In dismissing the application, MacDonnell J. relied on the following comment from the British Columbia Court of Appeal’sdecision in R. v. Barzal, (BC CA), [1993] B.C.J. No. 1812, 33 B.C.A.C. 161, 84 C.C.C. (3d) 289 (C.A.): 44 In this case the accused wanted access to the debriefing notes in order to test the reliability of the informers. A detailed inquiry intopolice files is not required for that purpose. Sufficient reliability is established, or is not established, by reference to the material filed insupport of an application for an authorization.

The right to make full answer and defence in this context is a right to the disclosure ofmaterial which had been before the authorizing judge. It is not a right to embark on a fishing expedition of all the material in thepossession of the police.

Such an enquiry could be endless, including access to police files, cross examination of police officers, crossexamination of informants (which is not permitted; Garofoli at p. 1465), and consideration of the details of each case in which theinformer had been involved. [15] The defence could show no basis for the disclosure request, other than a desire to check what the police files contained. MacDonnell J. therefore dismissed the application. Trotter J. came to the same result in R. v. Ali, 2013 ONSC 2629 , [2013]O.J.

No. 2074 (Sup.Ct.), where he adopted the analysis and result reached by MacDonnnell J. in Ahmed. [16] In my respectful view, therefore, the Court should require that the accused demonstrate a reasonable possibility that the

material will be useful. The accused has not been able to do so in this case. A disclosure request without a reasonable possibility that thematerial will be of use on the Garofoli application is simply a fishing expedition. A request to have the judge review the material soughtwithout a reasonable possibility that the material will be of use is also a fishing expedition. The only difference is the identity of thefisherman. 2.

Should a trial judge take on an inquisitorial role and examine the material in theinformant file? [17] What of the argument that Step 6 makes it incumbent on a trial judge to review the informant file? In my respectful view, theargument misconstrues the nature and purpose of the Garofoli review, which is to determine whether there was a basis upon which theauthorizing justice could have issued the search warrant. It is not, as I have stated, a form of random virtue testing of the police by thejudiciary. [18] I am sympathetic to Mr.

Bawden’s point that defence counsel have a difficult job of making full answer and defence duringthe Step 6 process. Nonetheless, as I indicated in my original ruling the process accommodates the right of full answer and defence tothe extent compatible with informant privilege. I cannot accept that the role of the judge has fundamentally changed. Step 6 of Garofoliwas not a revolution in the law of search and seizure.

Garofoli simply consolidated all of the various procedures that had arisen inresponse to two developments: the Canadian Charter of Rights and Freedoms, and the introduction of the wiretap provisions in

Part VI ofthe Criminal Code. I do not see how Garofoli changes the basic role of the judge and the parties. [19] Step 6 seemed like a new procedure at the time of Garofoli, and lately has been used more frequently. In fact, Step 6 is aboutdealing with competing rights and values. Dealing with competing rights and values is one of the classic functions of a judge under ouradversarial system. Step 6 seeks to balance the right of the accused to make full answer and defence against the super-ordinate value ofinformant privilege.

That balance had often come down on the side of the exclusion of evidence in cases where there was an ample basisupon which a justice could have issued a search warrant. Code J. summarized the problem in R. v. Learning, 2010 ONSC 3816, [2010] O.J.

No. 3092, 258 C.C.C. (3d) 68 (Sup.Ct.): 103 In cases like the one at bar, where the police have reasonable and probable grounds to arrest or search, based substantially on aninformer’s tip, and where they are compelled to act quickly in the public interest, there must be a rational solution to the conflict thatarises between the demands of Debot and the dictates of Liepert. [20] See: R. v. Liepert (SCC), [1997], 1 S.C.R. 281, 143 D.L.R. (4th) 38, 112 C.C.C. (3d) 385; R. v. Debot (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193. [21] Code J.’s solution was to breathe new life into Step 6. See: R. v.

Rocha, 2012 ONCA 707 , [2012] O.J. No. 4991,112 O.R. (3d) 742, 292 C.C.C. (3d) 325 (C.A.); R. v. Sahid, 2011 ONSC 979 , [2011] O.J. No. 653, 230 C.R.R. (2d) 239(Sup.Ct.). [22] The potential pitfalls of the inquisitorial approach are illustrated by R. v. Omar, 2007 ONCA 117 , [2007] O.J. No.541, 84 O.R. (3d) 493, 218 C.C.C. (3d) 242 (C.A.). In that case a “carded” informant provided detailed information to the policeregarding possession of a gun. Based on the tip, the accused was arrested. Prior to trial the accused requested disclosure of theconfidential informant file maintained by the police.

The Crown took a somewhat confusing position at trial, and a heavily editedversion of the file was disclosed to the defence. (On appeal, the Crown essentially admitted that an error had been made by the trialCrown and that the informant file should not have been disclosed.) The defence sought further documents from the file. The trial judgedirected that the Crown produce the documents. She then edited the documents and provided them to the Crown for further commentbefore she produced them to the defence.

The Crown objected and invoked s. 37 of the Canada Evidence Act (which permits a ministerof the Crown to object to disclosure on a specified ground of public interest). The Crown also called expert evidence to show that therewas a real prospect that the edited documents would identify the informant and actually jeopardize his or her personal safety. The trialjudge dismissed the s. 37 application. The Crown appealed. Sharpe J.A. noted that informant privilege is not something that can bebalanced against other competing rights and privileges. Accordingly, the edited file should not have been disclosed.

Sharpe J.A. wasalso critical of the way that the process unfolded: [31] … The trial judge was not required to proceed with the disclosure motion on the basis of an abstract theory of relevance that had nofoundation in the evidence or anticipated evidence and the positions of the parties, or based on a legal argument that was doomedinevitably to failure… [23] Mr. Bawden relies on R. v. Eagle, [1996] O.J. No. 2867 (Gen.Div.). In that case, Trafford J. examined the TPS informantfile.

As a result of that examination he found that the investigating officer had failed to fully follow the TPS procedures relating toinformants. Trafford J. also found that there had been material non-disclosure and that the investigating officer had behaved with areckless disregard for the truth. [24] In my view, Eagle is distinguishable from this case. In Eagle, the search warrant affiant had been cross-examined. Althoughit is not clear from the reported decision, it is obvious that Trafford J. already had access to the informant file.

I also point out thatTrafford J. was not engaged in a Step 6 Garofoli process. [25] In R. v. Doucette, [2009] O.J. No. 5917 (Sup.Ct.) Conway J. was presented with a similar request for the TPS informant file.She distinguished Eagle on the grounds that it was decided by prior to either Omar or Liepert. [26] In R. v. Ebanks, 2009 ONCA 851 , [2009] O.J. No. 5168, 249 C.C.C. (3d) 29, 97 O.R. (3d) 721 (C.A), the defenceargued that a wiretap agent had a duty to conduct an independent review of the investigation prior to applying for an authorization.

MacPherson J.A. emphatically rejected that suggestion, on the basis that it would transform Crown counsel into an independentinvestigator and blur the distinction between the Crown and the police, who have independent functions in the criminal justice system:

paras. 48, 49. [27] It is obvious that an important principle of our system is that all of the parties – Crown, police, defence – perform theirimportant functions fearlessly and independently. Crown counsel must be in a position to say “no” to the police. Turning Crowncounsel from a quasi-judicial officer into a second investigator would undermine that independence. What applies to Crown counselapplies with even greater force to a judge.

Turning a judge into an inquisitor or yet another investigator also risks blurring functions andundermining judicial independence. [28] If there is to be such a revolution (and leaving aside issues of constitutionality) it is for Parliament to specifically give that roleto judges.

Even where the role of a judge has been at issue, Parliament has specifically chosen not to alter the judiciary’s traditional role. [29] In Application Under s. 82.28 of the Criminal Code, 2004 SCC 42 , [2004] 2 S.C.R. 248, 240 D.L.R. (4th) 81, 184C.C.C. (3d) 449 the Supreme Court considered the constitutionality and purpose of some sections of the anti-terrorism legislationenacted after the shocking events of September 11,

Section 82.28 created a judicial investigative hearing where a named personcould be compelled to provide evidence outside the context of a trial. The Crown sought an order that a named person be compelled toprovide evidence in relation to the terrorist attacks against Air India aircraft that took place on June 23, 1985. In upholding theconstitutionality of the legislation the Court re-affirmed the traditional role of a judge: 80 Judicial independence is the "lifeblood of constitutionalism in democratic societies": Beauregard v.

Canada, (SCC), [1986] 2 S.C.R. 56, at p. 70… 82 The twin aspects of judicial independence and impartiality are relevant to this appeal. The first is the requirement that the judiciaryfunction independently from the executive and legislative branches of government: Beauregard, supra, at pp. 72-73. The second is therecognition that judicial independence is necessary to uphold public confidence in the administration of justice: Mackin v.

NewBrunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13… [30] The Court was very clear that even where a judge is empowered in relation to an investigative tool, the judge does not becomean investigator or inquisitor: 84 One of the criticisms levied against s. 83.28 is that it co-opts the judiciary into performing executive, investigatory functions inplace of its usual adjudicative role: see, e.g., Paciocco, supra, at p. 232.

Essentially, the assertion is that judges acting under s. 83.28 lackinstitutional independence or impartiality… 85 The role of the judge was described by this Court in Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35, at para. 108: The judicial function is absolutely unique. Our society assigns important powers and responsibilities to the members of its judiciary.Apart from the traditional role of an arbiter which settles disputes and adjudicates between the rights of the parties, judges are alsoresponsible for preserving the balance of constitutional powers between the two levels of government in our federal state.

Furthermore,following the enactment of the Canadian Charter, they have become one of the foremost defenders of individual freedoms and humanrights and guardians of the values it embodies ... . Accordingly, from the point of view of the individual who appears before them, judgesare first and foremost the ones who state the law, grant the person rights or impose obligations on him or her. 86 We find that the substance of such a criticism is not made out in the context of the s. 83.28 judicial investigative hearing.

Judgesroutinely play a role in criminal investigation by way of measures such as the authorization of wire taps (s. 184.2 of the Code), searchwarrants (s. 487 of the Code), and in applications for DNA warrants (s. 487.05 of the Code). The thrust of these proceedings is theirinvestigatory purpose, and the common underlying thread is the role of the judge in ensuring that such information is gathered in aproper manner.

The place of the judiciary in such investigative contexts is to act as a check against state excess. [31] To engage in random virtue testing of the police by engaging in inquisitorial procedures risks blurring the line between judgeand investigator and making the police into an arm of the Court. Proceeding in this manner also risks undermining the critical roleplayed by defence counsel as fearless advocates standing apart from the machinery of the state. [32] I also note that it there are potential practical dangers for a trial judge to take on an inquisitorial role.

What if there areambiguities in the informant file that cannot be resolved by a simple perusal? Should the judge also review police officer notes to besure that the informant reports in the file are accurate? And if there is a discrepancy, what is the next step? Is the judge to have an incamera hearing where he or she questions a police officer? Or the officer’s supervisor? Or the informant?

A judge could find him orherself caught in an endless series of collateral inquiries that have nothing to do with the main function of the court on a Garofoliapplication, which is to decide whether the accused’s rights under s. 8 of the Charter have been breached. [33] In my view, the process that I am asked to undertake is not dissimilar to the so-called Pre-Franks hearing in the United States. It is, therefore, useful to consider the American experience and the Canadian reaction. [34] There is no American equivalent to Step 6 of Garofoli. In United States v.

Roviaro, 353 U.S. 53 (1957) the United StatesSupreme Court confirmed that informant privilege must give way where the informant is actually an agent of the state and participates inthe criminal transaction at issue. The Canadian position is identical: R. v. Scott, (SCC), [1990] 3 S.C.R. 979, 61 C.C.C.(3d) 300 at paras. 38-39, where the Court cites Roviaro in support.

The rule stated in Roviaro is that “where the disclosure of aninformant’s identity, or of the contents of his communication, is relevant and helpful to the defence of an accused, or is essential to thefair determination of a cause, the privilege must give way.” It is important to understand that the Court was speaking of the defence on the merits, which is equivalent to our “innocence at stake” exception: United States v. Fields, 113 F.3d 313 (2nd Cir. 1997). Thegovernment may redact informant information where disclosure would identify the informant. A defendant has no right to the redactedmaterial.

Where suppression of evidence is sought, if the government chooses to support the warrant or authorization without regard tothe redacted material, a court determines the validity of the warrant based on the remaining material: Roviaro, supra; United States v. Forrester, 592 F.3d 972 (9th Cir. 2010). This, of course, is not unlike the Canadian position in steps 1 to 5 of Garofoli.

[ 35 ] Instead of Step 6, the American procedure is set out in Franks v. Delaware , 438 U.S. 154 (1978). Where an accused is able to show as a preliminary matter that the government’s affidavit contains inaccuracies or omissions as a result of the affiant’s falsehood or reckless disregard for the truth, and that the statements were material to the issuing of the authorization, a full evidentiary hearing is held: United States v. Rajaratnam , 719 F.3d 139 (2 nd Cir. 2013).

This preliminary hearing is conducted ex parte and in camera in order to determine the threshold issue where there is an inquiry into the history and reliability of a confidential informant: United States v. Reeves , 210 F.3d 1041 (9 th Cir. 2000). That procedure can include an examination of the police and even of the informant him or herself: Fields , supra , at para. 51.

The full Franks hearing is then required to determine whether there has in fact been perjury or a reckless disregard for the truth and whether the authorization can still be supported. [ 36 ] As noted, there are some similarities to the approach that Mr. Bawden urges me to take, and to the ex parte and in camera threshold hearing that is part of the Franks procedure. The majority in Garofoli examined Franks in the context of an application to cross-examine a wiretap affiant and rejected the requirements for leave as too restrictive.

The Court could have adopted the Franks procedure for dealing with wiretap authorizations based on informant information. Instead, the Court opted for the procedure set out at para. 79 of Garofoli, of which Step 6 is at issue here. Disposition [ 37 ] I therefore conclude that it would be an error of law to proceed with a subpoena to the TPS in this case and to examine the informant file. The application is dismissed. _______________________________ Goldstein J. Released: November 27, 2013 CITATION : R. v.

Grant, 2013 ONSC 7323 COURT FILE NO.: 13-90000234/0000 DATE: 20131127 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – EDDY GRANT Defendant

SUPPLEMENTARY REASONS FOR JUDGMENT Goldstein J.