



COURT OF APPEAL FOR ONTARIO

CITATION: R v. Reid, 2016 ONCA 524

DATE: 20160630

DOCKET: C59670

Juriansz, Watt and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Erik Reid

Appellant

John Norris, Breese Davies and Owen Goddard, for the
    appellant

Alexander Hrybinsky, for the respondent

Heard: December 17, 2015

On appeal from the convictions entered on June 13, 2013 and
    the sentence imposed on June 20, 2013 by Justice Eugene G. Ewaschuk of the
    Superior Court of Justice, sitting without a jury.

Watt J.A.:

[1]

Ian McCulloch had some guns.  He kept them lawfully in a storage locker
    in Port Perry.

[2]

Lawrence Wray had some guns too.  He kept his guns lawfully in a storage
    locker in Port Perry.

[3]

In late October one year, somebody broke into both storage lockers.  And
    stole about thirty guns, most of them handguns.

[4]

About a week later, police found about three dozen guns in another
    locker.  Erik Reids locker.  Along with 5,000 rounds of ammunition.  All the
    guns came from the Port Perry lockers.  So did two other handguns found in
    Reids home, along with some more ammunition and Ian McCullochs coin
    collection and identification.

[5]

Police charged Reid with nearly 100 firearms offences.  At Reids trial,
    his lawyer asked the judge to exclude all the evidence found in his storage
    locker and at his home.  Reids lawyer said that the searches were unreasonable
    and the evidence gathered, inadmissible.

[6]

The trial judge did not agree with Reids lawyer.  The search was
    lawful.  The evidence found during the searches was admissible.  A little
    later, the judge convicted Reid of more than three dozen firearms offences on
    the basis of an Agreed Statement of Facts prepared by Reids lawyer and the
    trial Crown.

[7]

Erik Reid asks us to set aside his convictions, or, if we are not
    prepared to do so, to substantially reduce the lengthy penitentiary sentence
    the trial judge imposed upon him.

[8]

These reasons explain why I would dismiss the appeal from conviction,
    but allow the appeal from sentence to the extent of awarding enhanced credit to
    Reid for pre-disposition custody, thereby reducing the
remanet
of his sentence.

The Background

[9]

The issues raised on the appeal from conviction do not require any
    elaboration of the circumstances underpinning the offences charged beyond those
    necessary for an understanding of the grounds of appeal advanced.

The Unrelated Arrest

[10]

About a week after the Port Perry gun thefts, police arrested Reid on an
    unrelated and outstanding warrant.  When searched incident to his arrest, Reid
    had several .22 calibre bullets in his pocket.  He was not charged in
    connection with this ammunition.

The Locker Search Warrant

[11]

The day after Reids unrelated arrest, police obtained a warrant to
    search a storage locker leased to him at a Toronto address.  In that locker,
    officers found 22 handguns, 13 long guns, and over 5,000 rounds of ammunition. 
    All the handguns and six of the long guns came from the storage lockers in Port
    Perry.

[12]

The information to obtain (ITO), which provided the basis for the warrants
    issuance, recited the circumstances of Reids recent arrest and what he told
    investigators in a post-arrest interview.  He denied any knowledge of the
    ammunition in his pocket but admitted a familiarity with firearms through his
    deceased father.

[13]

The core of the ITO consisted of information provided by a confidential
    informant (CI) known to the Toronto Police Service.  In the copy of the ITO
    provided to defence counsel, the trial Crown redacted not only biographical
    details of the CI but also all the information the CI had provided.

[14]

The balance of the ITO disclosed observations a police officer made of
    the storage facility unit leased to Reid.  Through a slim door opening, the
    officer could see cases of razors stacked on the floor along with something
    else covered with a dark tarp.  Some of this paragraph was also redacted.

The Search Warrant for Erik Reids
    Home

[15]

After police had executed the search warrant for Reids storage locker
    and found the cache of stolen guns and ammunition there, they sought and
    obtained a second warrant to search the home Reid occupied with his mother. 
    Execution of that warrant yielded two more stolen handguns, more ammunition, and
    various items belonging to Ian McCulloch.  The issuance of this warrant was not
    directly challenged at trial.

The Challenge
    at Trial

[16]

Trial counsel for Reid challenged the issuance of the search warrant for
    the storage locker.  He invoked s. 8 of the
Canadian Charter of Rights and
    Freedoms

and contended that under
R. v. Garofoli
, [1990] 2
    S.C.R. 1421, the warrant could not have issued on the basis of the material
    included in the ITO.

[17]

As part of the appellants s. 8 application, trial counsel sought leave
    to cross-examine the author of the ITO.  Counsel sought to establish that the
    police had not been forthcoming in the ITO about the timing of the information
    received from the CI as well as about the CIs reliability and criminal
    antecedents.  After all, trial counsel argued, the redacted ITO made it clear
    that issuance of the warrant depended entirely on the reliability of the
    information provided by the CI.

[18]

The trial judge dismissed the application to cross-examine the author of
    the ITO.  The trial judge concluded:

In this case, it seems to me that the proposed
    cross-examination is essentially directed at undermining the reliability of the
    CI.  At the same time, it also seems to me that the proposed cross-examination
    would likely tend to narrow the class of possible informants, given the short
    timeframe involved and thereby tend to indirectly identify the CI.  The need to
    protect the identity of confidential informers remains a valid ground for
    denying cross-examination of the affiant in this area.

In the end, the accused has failed to satisfy me that the
    proposed cross-examination as to the CIs information would tend to undermine
    one of the statutory preconditions to the issuance of the search warrant. 
    Alternatively, there is no basis indicating that the affiants own credibility
    is material to undermining one of the statutory preconditions to the issuance
    of the search warrant.  Accordingly the application for leave to cross-examine
    the affiant is hereby dismissed.

[19]

After the trial judge ruled on trial counsels application to
    cross-examine the author of the ITO, the trial Crown acknowledged that the
    redacted ITO could not support the issuance of the warrant to search the
    storage locker.  The Crown invoked step six of
Garofoli
and provided the
    trial judge with a draft summary of the redacted parts of the ITO.  The trial
    judge reviewed the draft and provided it to defence counsel.

[20]

Defence counsel complained that the summary was so devoid of information
    that he could not make any submissions on his
Garofoli
application. 
    Counsel did not challenge the constitutional validity of step six in
Garofoli
under s. 7 of the
Charter
or on any other basis.

The Ruling of the Trial Judge

[21]

The trial judge was satisfied that the summary provided to trial counsel
    was adequate to permit Reid to make full answer and defence on his
Garofoli
application. The trial judge relied on the redacted portions of the ITO and
    found that the warrant could have been issued in reliance upon them.  The judge
    dismissed the application to exclude the evidentiary fruits of the search of
    Reids storage locker.

The Trial Proceedings

[22]

After the trial judge had dismissed the s. 8 application, counsel
    prepared an Agreed Statement of Facts that summarized the Crowns case.  Reid
    pleaded not guilty and agreed that findings of guilt could be recorded on about
    three dozen of the 98 counts: one count of possession of a firearm for the
    purpose of trafficking, one count of possession of an unregistered firearm with
    ammunition readily accessible, and 35 counts of possession of unlicensed
    firearms.  The trial judge recorded the findings of guilt, entered convictions
    on those counts, and subsequently sentenced Reid to a net sentence of nine
    years in the penitentiary.  The Crown withdrew the remaining counts.

The Grounds of Appeal

[23]

Erik Reid (the appellant) appeals his convictions and seeks leave to
    appeal his sentence.

[24]

On the appeal from conviction, the appellant seeks to challenge, for the
    first time in this court, the constitutional validity of step six of
Garofoli
which he says offends s. 7 of the
Charter
.  In the alternative, he
    submits that the trial judge erred in dismissing the
Garofoli
application
    at trial by relying on redacted portions of the ITO when the judicial summary provided
    to him (the appellant) did not make him sufficiently aware of the nature of the
    excised material to permit him to effectively challenge it by evidence or
    argument.

[25]

On the appeal from sentence, the appellant says that the trial judge
    imposed a demonstrably unfit sentence because of his singular focus on
    denunciation and deterrence and his failure to accord appropriate weight to
    various mitigating factors and the appellants rehabilitative prospects.  The
    appellant contends that the trial judge also erred in failing to award him
    adequate credit for time spent in pre-disposition custody by granting credit on
    a 1:1 rather than a 1.5:1 basis.

The Appeal from Conviction

Ground #1: The Constitutional Validity of Step Six of
Garofoli

[26]

In accordance with the directions of the case management judge, counsel
    filed written submissions on whether the appellant should be permitted to raise
    the constitutional validity of step six of
Garofoli

in this court, for the first time.  We
    permitted brief oral submissions on the issue then retired to consider whether
    we would permit the appellant to advance the argument.  We concluded that we
    would not permit the appellant to pursue the constitutional challenge.

[27]

It is sufficient in these circumstances to summarize briefly the
    positions of the parties, set down the governing principles, and explain why
    the application of those principles yielded the conclusion we reached.

The Arguments on Appeal

[28]

The appellant begins with an acknowledgement of the incontrovertible. 
    As a general rule, appellate courts will not entertain grounds that were not
    raised at trial.  This general prohibition applies equally to constitutional
    and non-constitutional arguments that see their first sunrise in the appellate
    court.

[29]

But, the appellant continues, the rule is general, not universal or
    unyielding.  Appellate courts have the discretion to permit pursuit of new
    arguments, constitutional or otherwise, for the first time on appeal.  New
    arguments are more likely to be countenanced where those arguments can be
    fully, fairly, and effectively addressed on the record of the trial court that
    is before the appellate court.

[30]

Here, the appellant says, the proposed ground relates to the basis on
    which the case for the Crown was challenged at trial.  The appellant contested
    the constitutional validity of the search of the storage locker and seizure of
    its contents.  The ITO was targeted.  The attack was both facial and
    subfacial.  The constitutional challenge proposed on appeal fastens upon the
    procedural mechanism invoked by the Crown to rebuff the challenge.  The nexus
    is sufficient to oust the operation of the general rule and to permit
    consideration of the proposed argument made here for the first time.

[31]

Besides, the appellant contends, the trial record is adequate to permit
    advancement of the argument and adjudication of its considerable merit.  The
    respondent will suffer no prejudice.

[32]

The respondent rejects any suggestion that we should depart from the
    general rule, invoke the exception, and take on the constitutional challenge
    proposed by the appellant.

[33]

The respondent submits that the evidentiary record before this court is
    inadequate. It is not the functional equivalent of what would have been put in
    place had the argument been advanced at trial. The respondent reminds us that
    the constitutional infringement alleged at trial was a breach of s. 8, not a
    claim that a procedural component of the inquiry offended s. 7.  The argument
    advanced was highly contextual.  The argument proposed here is of a more
    general nature, seeking to strike down step six on the ground it fails to
    accord with the principles of fundamental justice.  What is proposed is an
    entirely new argument, and one that cannot be advanced, much less decided, in
    the abstract.  What is required is a record compiled to reflect the highly
    contextual nature of the challenge and including s. 1 materials. This argument cannot
    be legitimately characterized as supplementary to that advanced at trial.

[34]

The respondent points out that whether an argument proposed for the
    first time on appeal is important is not dispositive of whether the general
    rule should give way to the exception.  This is not an issue that will escape
    appellate review if not heard in this case.  It will emerge in future cases in
    which
Garofoli
applications are mounted and step six is involved: its
    constitutional validity will be assailed, the necessary evidentiary foundation developed.

[35]

The respondent also notes that the s. 7 challenge to step six of
Garofoli
invites us to overturn, as unconstitutional, a procedural step created by the
    Supreme Court of Canada in
Garofoli
and considered by this court
    recently in a decision that contained no query about constitutional
    vulnerability.  Nothing has occurred since either decision was rendered to
    warrant further consideration.

[36]

The respondent concludes by questioning the claim of merit advanced by
    the appellant.  The essence of the argument for the appellant rests on a claim
    that invokes the disclosure obligations of the Crown, the right to make full
    answer and defence, and authorities involving national security and security
    certificates.  The right to make full answer and defence is not absolute. 
    Neither it nor an accuseds entitlement to disclosure can trump CI privilege. 
    What will be required to meet the commands of s. 7 will vary with the context
    in which the claim arises.

The Governing Principles

[37]

The principles that control whether an appellate court will entertain on
    appeal an argument not raised at trial are not controversial.

[38]

The general rule is preclusive but not unyielding.

[39]

The general rule is that courts of appeal will not permit an issue to be
    raised for the first time on appeal:
R. v. Warsing
, [1998] 3 S.C.R.
    579, at para. 16,
per
LHeureux-Dubé J. (dissenting in part);
R.
    v. Brown
, [1993] 2 S.C.R. 918, at pp. 923-924,
per
LHeureux-Dubé
    J. (dissenting);
Kaiman v. Graham
, 2009 ONCA 77, 245 O.A.C. 130, at
    paras. 18-19; and
R. v. Roach
, 2009 ONCA 156, 246 O.A.C. 96, at para.
    6.

[40]

The general rule arises out of several concerns that include but are not
    limited to the following:

i.

prejudice caused to the other side which lacks the opportunity to
    respond and adduce evidence at trial;

ii.

the absence of a sufficient record from which to make findings of fact
    essential to a proper determination of the issue;

iii.

societal interest in finality and the expectation that criminal cases
    will be disposed of fairly and fully at first instance; and

iv.

the important responsibility of defence counsel to make decisions that
    represent a clients best interests and to advance all appropriate arguments
    throughout the trial.

See
Warsing
, at paras. 16-17 and
Brown
,
    at pp. 923-924.

[41]

The general rule applies to constitutional arguments or challenges
    raised for the first time on appeal, regardless of whether an appellant invokes
    the remedial powers of s. 24 or the declaratory or nullifying authority of s.
    52(1):
Roach
,
at para.
    6.

[42]

The burden is on the party who seeks to raise the new issue on appeal to
    bring the argument to be advanced within the exception to the general
    prohibition.  It is incumbent on that party to demonstrate that all the facts
    necessary to address the proposed issue are as fully before the appellate court
    as they would have been had the issue been argued at trial:
Kaiman
, at
    para. 18.  As the evidentiary disputes generated by the materials first filed
    on appeal mount, the likelihood that an appellate court will hear the argument
    diminishes:
Roach
, at paras. 7-8.

[43]

A party who seeks to escape the grip of the general prohibition against
    raising issues for the first time on appeal must meet or satisfy three
    preconditions:

i.

the evidentiary record must be sufficient to permit the appellate court
    to fully, effectively and fairly determine the issue raised on appeal;

ii.

the failure to raise the issue at trial must not be due to tactical
    reasons; and

iii.

the court must be satisfied that no miscarriage of justice will result
    from the refusal to raise the new issue on appeal.

See
Brown
, at p. 927,
per

LHeureux-Dubé
    J. (dissenting).

[44]

A final point.  The decision whether to grant or refuse leave to permit
    a new argument is a discretionary decision informed by a balancing of the
    interests of justice as they affect all parties:
Kaiman
, at para. 18.

The Principles Applied

[45]

In combination, several reasons persuaded us that this was not a case in
    which we should depart from the general injunction against permitting issues to
    be raised for the first time on appeal.

[46]

First, we are not satisfied that the facts are as fully developed as
    they would have been had the constitutionality of step six been raised at first
    instance.

[47]

For all practical purposes, the evidentiary record consists of the
    redacted ITO and the judicial summary of the redacted portions of the ITO
    provided to defence counsel.  The focus of the inquiry at trial was on whether
    the judicial summary provided made the appellant sufficiently aware of the
    nature of the excised material that he was able to challenge it in argument or
    by the introduction of evidence. The issue was whether the Crown could invoke step
    six or was confined to the admittedly inadequate redacted ITO. An evidentiary
    record adequate for this purpose provides no such nourishment to sustain a
    claim that step six is constitutionally impotent because it fails to accord
    with the principles of fundamental justice.

[48]

Second, the proposed argument is not supplementary to the position
    advanced at trial. There, trial counsel contended that the Crown could not rely
    on step six, not because it was unconstitutional, but because the summary
    provided did not meet its requirements. The proposed argument is a claim that step
    six has no place in a
Garofoli
application because this step is itself
    constitutionally flawed.

[49]

Third, to the extent that the proposed argument is grounded on a claim
    that the right to make full answer and defence trumps confidential informer
    privilege, such a claim is unsustainable. In a similar way, the invocation of
    the principles elucidated in
Charkaoui v. Canada

(Citizenship
    and Immigration)
,

2007
    SCC 9, [2007] 1 S.C.R. 350, is of little value in this context since that case
    makes it clear that s. 7 does
not
require a particular type of process
    but one that is fair in light of the nature of the proceedings and the
    interests at stake:
Charkaoui
, at para. 20.

[50]

Finally, the appellant invites a reassessment of a common law procedure
    put in place by the Supreme Court of Canada to deal with applications to
    exclude evidence allegedly obtained by a breach of s. 8 of the
Charter
.
    A part of the procedure  the conditions precedent to obtaining leave to
    cross-examine the affiant  has been held constitutionally sound under s. 7:
R.
    v. Pires
;
R. v. Lising
, 2005 SCC 66, [2005] 3 S.C.R. 343, at
    para. 38. Besides, step six has received extensive analysis recently in this
    court without any suggestion of constitutional infirmity:
R. v. Crevier
,
    2015 ONCA 619, 330 C.C.C. (3d) 305.

GROUND #2: The Inadequacy of the Judicial Summary

[51]

The appellant targets the judicial summary provided to defence counsel
    at trial. He says that the summary fell short of what step six in
Garofoli
requires.
    An assessment of this complaint requires a brief sketch of some features of the
    ITO and judicial summary and a snapshot of the trial judges ruling on the
Garofoli

application.

The ITO

[52]

The core of the ITO was the information provided by the CI. Absent this
    information, the trial Crown conceded, the warrant could not have issued.

[53]

The copy of the ITO provided to defence counsel at trial was redacted,
    barren of the information provided by the CI.

The Judicial Summary

[54]

The trial Crown provided the trial judge with a proposed summary of the
    redacted portions of the ITO. In open court, in the presence of defence
    counsel, the trial Crown and the trial judge discussed the adequacy of the
    summary. The trial judge was satisfied with its adequacy and provided a copy to
    defence counsel.  The trial Crown and trial judge retained a copy of the
    unredacted ITO.

[55]

The summary tracked the paragraphs and subparagraphs of the ITO in language
    that was, of necessity, somewhat general in order not to disclose information
    that might reveal the identity of the CI. Among other things, the summary made
    it clear that the ITO contained no information about:

·

the
    criminal record, if any, of the CI;

·

any
    outstanding charges the CI may have been facing; and

·

the
    CIs prior involvement, if any, in providing information to a police force.

[56]

The summary describes the currency of the information provided by the CI
    by reference to the same season of the same year in which the ITO was completed
    and the warrant issued. Further, the summary discloses that the ITO includes
    specific facts relating to a storage facility at a disclosed location. The
    facts include description of specific objects in the storage facility, how the facts
    became known to the CI and when those facts became known. Additional parts of
    the summary explain the basis upon which the author of the ITO undertook
    certain investigations and discuss corroboration of the information provided by
    the CI.

The Positions of the Parties at Trial

[57]

Trial counsel for the appellant focused his submissions on the adequacy
    of the judicial summary. He contended that the summary was so generic that he
    could not make submissions about whether the requirements of
R. v.

Debot
,
    [1989] 2 S.C.R. 1140, for information from informants  compelling information,
    a credible source, and corroboration by police investigation  had been met.

[58]

The summary provided no information about the degree of detail and was
    significantly deficient because it omitted, deliberately, any information about
    the CIs criminal record, outstanding charges, and previous involvement with
    law enforcement. In the end, counsel said, the summary failed to provide him
    with adequate information to challenge the ITO.

[59]

The trial Crown emphasized the nature of the judicial summary required
    by step six of
Garofoli
. The summary must be such that it makes the
Garofoli
applicant sufficiently aware of the
nature
of the excised material to challenge it in argument or by evidence:
Garofoli
,
    at p. 1461. The summary need not provide the specifics of the excised material.
    To impose such a requirement or standard would be at once unfaithful to the
    benchmark mandated by
Garofoli
and disloyal to the near absolute
    nature of the CI privilege.

[60]

Further, the trial Crown argued, the ultimate issue on the hearing was
    whether, on the basis of the ITO, as amplified on review, the warrant could have
    been issued. This test and the nature of the inquiry itself  a hearing to
    determine the admissibility of evidence  help to define the scope of
    disclosure required. It is in this narrower context, a threshold evidentiary
    hearing to determine the admissibility of items seized under a warrant as
    evidence, that the nature and scope of the judicial summary must be considered.

[61]

In the end, the trial Crown said, the summary was adequate. It pointed
    out the defects in the ITO  the absence of any mention of the CIs criminal
    record and prior history  and demonstrated a sufficient basis upon which trial
    counsel could argue and the trial judge decide whether the information was
    reliable and sufficiently corroborated by police investigation to overcome the
    effect of the omissions.

The Ruling of the Trial Judge

[62]

The trial judge described that the nature of his task at the threshold
    stage was to determine whether the judicial summary of the redacted portions
    met the standard required by step six of
Garofoli
. He concluded that
    the summary met this standard by its references to the following:

·

the
    background of the CI;

·

the
    CIs motivation;

·

the
    shortcomings in connection with the CIs criminal record (if any) and prior
    history as an informer;

·

the
    currency of the information about the storage locker and the accuseds
    circumstances;

·

the
    description of the contents of the storage locker; and

·

the
    source of the CIs knowledge.

[63]

The trial judge went on to consider whether, on the basis of the
    unredacted ITO, the warrant could have been granted. He concluded as follows:

In this case, I find the
    information provided by the CI, and in turn by the affiant, to the issuing
    judge to have been highly detailed and compelling. The information was current
    within a tight timeframe. Furthermore, the police corroborated the CIs
    information as to the location of the storage locker, its description, and
    various items found in or on the locker.  The CI also indicated how he/she came
    to be aware of the information, that is whether it was first or second hand
    information.  The police verified with the facility manager that the accused,
    Reid, had indeed rented the locker.  The locker was, furthermore, padlocked.

In the end, I find that there was
    a sufficient evidentiary foundation for the judge to have issued the search
    warrant, based on the compelling detail provided by the CI in corroboration of
    much of that detail.

The Arguments on Appeal

[64]

The appellant begins with a reminder that the Crowns resort to step six
    of
Garofoli
is circumscribed. To take advantage of this extraordinary
    step, which allows recourse to materials that have not been disclosed to an
    accused, Crown counsel must satisfy the reviewing judge that the judicial
    summary makes the accused sufficiently aware of the nature of the excised
    material that she or he may challenge it in argument or by evidence. In this
    case, the appellant says, the summary falls short of what is required.

[65]

The appellant acknowledges the difficulty in including any specifics
    about the information provided by the CI in the summary since those specifics,
    even what appears to be an innocuous detail, may tend to reveal the identity of
    the CI, thus impermissibly breach the CI privilege. But the appellant says that
    the compromise reflected in step six does not eradicate an accuseds right to
    make full answer and defence by challenging the admissibility of evidence
    proposed for admission by the Crown.

[66]

What happened here had that effect. The summary, generic in nature, left
    the appellant unaware of the source of the CIs information  first hand
    observation, hearsay, or rumour  as well as his or her motivation. For all
    practical purposes, the appellant lacked the ability to challenge, by argument
    or evidence, whether the
Debot
requirements

had been satisfied.
    The trial judge should not have permitted the Crown to rely on step six because
    the judicial summary failed to meet the standard required to invoke this
    extraordinary procedure.

[67]

The respondent rejects the appellants claim that the judicial summary
    fell short of what is required by step six of
Garofoli
.

[68]

The respondent says the very term used in step six of
Garofoli
 summary  recognizes that what is supplied does not replicate the fine
    details of the unredacted version. And besides, an ITO that contains
    information from a CI must pay heed to the CI privilege with the inevitable
    consequence that the summary cannot include anything that may reveal the
    identity of the CI.

[69]

The respondent invites our consideration of the purpose of the summary as
    a factor informing our assessment of the adequacy of the summary challenges
    here.  Summaries are intended to provide an accused with as much information
    about the nature of the redacted material as is necessary to permit meaningful
    participation by an accused in the evidentiary challenge but not so much as to
    compromise the near absolute nature of CI privilege.

[70]

Further, according to the respondent, our assessment of the sufficiency
    or, more accurately, adequacy of the judicial summary cannot ignore the reality
    of the challenge to admissibility. The appellant was not unarmed but for the
    summary. He also had the Crown disclosure. He had the opportunity to adduce
    defence evidence and to advance hypothetical and alternative arguments on the
Debot
issues, especially whether the omissions in the ITO negated the credibility of
    the CI and the compelling nature requirement of
Debot
.

[71]

The respondent reminds us about the purpose and place in the trial process
    occupied by the summary.  Summaries have to do with a pre-trial procedure the
    purpose of which is to determine the admissibility of evidence.  They are not
    concerned with the trial on the merits or the adequacy of the Crowns proof of
    guilt.  In this case, the summary satisfied the
Garofoli
step six
    requirement and permitted a challenge based on the
Debot
criteria.

The Governing Principles

[72]

Several principles have their say in our determination of this ground of
    appeal.  Some have to do with the scope of review, confidential informant
    privilege, and the right of those charged with a crime to make full answer and
    defence.  Others focus more directly on step six of
Garofoli
.

The Scope of Warrant Review

[73]

The reviewing judge does not stand in the same place and perform the
    same function as the issuing justice.  The reviewing judge does not conduct a
    rehearing of the application for the warrant.  He or she does not substitute
    his or her view for that of the issuing justice.  The task of the reviewing
    judge is to determine whether, based on the record that was before the issuing
    justice  the ITO  as amplified by any evidence adduced on the review, the
    issuing justice
could
have issued the warrant.  Provided the reviewing
    judge is satisfied on the basis of these materials that the warrant
could
have issued, then the reviewing judge must not interfere:
Garofoli
, at
    p. 1452;
R. v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51.

[74]

It is essential that the reviewing judge base his or her decision on
    reliable information.  In other words, the test or standard is whether there
    was reliable evidence that might reasonably be believed on the basis of which
    the warrant could have issued:
Araujo
, at para. 54.

[75]

A further point about what the
Garofoli
review does not do.  A
Garofoli
review is an evidentiary hearing.  Its purpose is to determine whether a
    judicial order, a warrant or authorization, can sponsor state activity that,
    without it, would offend the s. 8 guarantee against unreasonable search or
    seizure.  The hearing is not intended to test the merits of any of the Crowns
    allegations in respect of the offence charged.  The truth of the allegations in
    the ITO as they relate to the essential elements of the offence and an
    accuseds participation in it remain to be established by the Crown on the
    basis of admissible evidence adduced at trial:
Pires
;
Lising
,
    at para. 30.

[76]

As the
Garofoli
hearing commences, the reviewing judge will
    have a copy of the ITO, the warrant, and any materials filed in support of the
    application.  When the ITO includes reference to information provided by a CI,
    that information will be redacted to guard against any breach of CI privilege. 
    The record may become expanded by further information as, for example, by
    cross-examination of the author of the ITO.  But cross-examination does not
    follow as a matter of right, an invariable component of the right to make full
    answer and defence.  A requirement that the defence meet a threshold test
    before engaging in cross-examination, pursuing a specific line of inquiry, or
    eliciting evidence in support of a full answer and defence is neither unique to
    a
Garofoli
application nor anomalous within the criminal justice
    system:
Pires
;
Lising
, at para. 37.

The Right to Disclosure and CI
    Privilege

[77]

An accuseds right to make full answer and defence, a principle of
    fundamental justice constitutionally protected under s. 7 of the
Charter
,
    includes the right to full and timely disclosure, the right to know the case to
    meet, the right to challenge the admissibility of the evidence proffered for
    admission by the Crown, and the right to cross-examination:
Crevier
,
    at para. 52.

[78]

On the other hand, neither the right to make full answer and defence nor
    the right to disclosure is absolute.  For example, however fundamental, the
    right to make full answer and defence does not reach so far that it issues a
    blank cheque to an accused to pursue any and every conceivable tactic and line
    of inquiry in service of defending him or herself against an allegation of
    crime:
Crevier
, at para. 53;
R. v. Quesnelle
, 2014 SCC 46,
    [2014] 2 S.C.R. 390, at para. 64.  Context and the presence and influence of
    other competing interests are of importance in establishing the outer
    boundaries of the right:
Crevier
, at para. 53.

[79]

Nor is an accuseds right to disclosure absolute.  It is subject to the
    discretion of the Crown, a discretion which extends to the enforcement of CI
    privilege:
R. v. Stinchcombe
, [1991] 3 S.C.R. 326, at pp. 335-36 and
    339.

[80]

Confidential informant privilege is a class privilege.  The rule is of
    fundamental importance to the workings of our criminal justice system:
Bisaillon
    v. Keable
, [1983] 2 S.C.R. 60, at p. 105;
R. v. Leipert
, [1997] 1
    S.C.R. 281, at para. 10.

[81]

Informer privilege is of such importance that, once established, a court
    is not entitled to balance the benefit that enures from the privilege against
    countervailing considerations:
Leipert
, at paras. 12 and 14.  The only
    exception to the rule is innocence at stake.  No exception exists for the right
    to make full answer and defence:
Named Person v. Vancouver Sun
, 2007
    SCC 43, [2007] 3 S.C.R. 253, at para. 28.

[82]

Preservation of the near absolute nature of CI privilege has significant
    implications for the redaction process as well as for requests for further
    disclosure about the informants sources of knowledge or the nature of the
    information provided.  It is virtually impossible for a court to know what
    details may reveal the identity of a CI:
Leipert
, at para. 28;
World
    Bank Group v. Wallace
, 2016 SCC 15, 395 D.L.R. (4th) 583, at para. 129.

[83]

An absolute CI privilege rule, subject only to the innocence at stake
    exception, is consistent with the protection the
Charter
accords to
    the right to a fair trial:
Leipert
, at para. 24;
Vancouver Sun
,
    at para. 28.

Step six of
Garofoli

[84]

In
Garofoli
, which involved a challenge to a conventional
    authorization under what is now Part VI of the
Criminal Code
, Sopinka
    J. set out a procedure to be followed when the Crown objects to disclosing part
    of the affidavit filed in support of an application for authorization: see
Garofoli
,
    at p. 1461.  The same procedure applies to an ITO relied upon to support
    issuance of a search warrant:
R. v. Blake
, 2010 ONCA 1, 251 C.C.C.
    (3d) 4, at para. 15;
R. v. Rocha
, 2012 ONCA 707, 112 O.R. (3d) 742, at
    para. 56.

[85]

Step six of
Garofoli
may be invoked when the editing of the
    supportive affidavit or ITO to ensure compliance with the CI privilege rule
    renders the affidavit or ITO incapable of satisfying the conditions precedent
    for issuance of the warrant or authorization.  Step six is in these terms, at
    p. 1461:

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.

The step six procedure attempts to balance conflicting
    interests.  On the one hand, the interests of law enforcement, including the
    duty to ensure the protection of informers and preserve the near-absolute sanctity
    of CI privilege.  On the other hand, the right of every person charged with a
    crime to make full answer and defence: see
Garofoli
, at p. 1458.  The
    balancing is not a weighing of absolutes for, as we have already seen, neither the
    right to make full answer and defence nor CI privilege is absolute.

[86]

Step six adopts a
quid pro quo
approach to this balancing
    process. This involves, on the one hand, permitting the Crown to rely upon the
    unredacted ITO, which has not been disclosed to the defence, to support the
    issuance of the warrant.  And on the other hand, permitting the defence to
    challenge the issuance of the warrant, and thus the reasonableness of the
    search, on the basis of the redacted ITO and a judicial summary of the nature
    of the redacted material.  The Crown may only invoke step six, however, where
    the summary makes the accused sufficiently aware of the nature of the excised
    material to challenge it in argument or by evidence:
Crevier
, at para.
    43;
Garofoli
, at p. 1461.  A summary that fails to meet this standard
    disentitles the Crown to rely on the unredacted ITO to sustain the issuance of
    the warrant as the enabling search authority.

[87]

Three points about the judicial summary are worthy of reminder.

[88]

First, what is provided is a
summary
.  By its very nature, a
    summary is general, not detailed.  Its predominant characteristics are
    conciseness and brevity.  A summary eschews detail.  Indeed, were a summary to
    contain the last detail, it would not only exceed what is required by step six
    but also, in all likelihood, breach CI privilege.

[89]

Second, and despite its general nature, the summary must provide an
    accused with a meaningful basis on which to challenge whether the author of the
    ITO made full and frank disclosure of the
Debot
factors relating to
    the CI:
Crevier
, at para. 83.

[90]

Third, the summary need only make the accused aware of the
nature
of the redacted material, not its substance and not its details.  The summary
    must be sufficient to allow the accused to mount a challenge to the redacted
    material by argument or evidence.  But recall that the judicial summary is not
    the only means available to an accused to challenge the issuance of the
    warrant.  An accused may seek leave to cross-examine the author of the ITO, may
    rely on other information that has been the subject of Crown disclosure, or may
    adduce other evidence:
Crevier
, at paras. 72, 77 and 83.

The Principles Applied

[91]

Several reasons persuade me that we should not give effect to this
    ground of appeal.

[92]

First, the trial judge stated and applied the proper test in concluding
    that the judicial summary provided to the appellant made him sufficiently aware
    of the excised material so that he could (and did) challenge it.  The inquiry
    in which the trial judge was involved is a fact-specific examination of all the
    circumstances.  Inherent in this analysis are findings of fact and an
    assessment of whether those findings satisfy the legal standard required of
    them.  These findings are owed deference on appellate review.

[93]

Second, the arguments advanced by the appellant are largely generic,
    more apt to a constitutional challenge to the procedure mandated by step six, a
    challenge we declined to hear for reasons already expressed, than a focused
    submission on the alleged deficiencies here.

[94]

Third, it is important not to lose sight of the nature of the inquiry of
    which step six may be a part.  The hearing is a pre-trial, threshold
    evidentiary hearing in which an accused challenges the constitutional integrity
    of an evidence-gathering device or technique.  Guilt or innocence is not at
    stake.  In the end, what the judge must decide is whether there is any basis
    upon which the issuing justice could have been satisfied that the statutory
    preconditions to the issuance of the warrant had been met.

[95]

Fourth, the judicial summary provided in this case struck an appropriate
    balance between the right to make full answer and defence, on the one hand, and
    the preservation of the near absolute nature of CI privilege on the other. The
    innocence at stake exception was not invoked. The summary contained meaningful
    information that permitted the appellant to argue that the
Debot
requirements had not been met. These three factors are assessed on the totality
    of the circumstances, bearing in mind that a weakness in one, say the
    credibility of the source, may be made up in others, such as the compelling
    nature of the information or its corroboration by law enforcement authorities.

[96]

A final point concerns the factors a trial judge should consider in
    assessing the adequacy of the judicial summary.  There is no closed list of
    factors that require consideration.  And whichever factors are considered, all
    sides must recognize that nothing is to be included in the summary that risks
    revealing the identity of the CI.

The Appeal from Sentence

[97]

The appellant also seeks leave to appeal sentence.  He received an
    effective sentence of 9 years after the trial judge had taken into account the
    principle of totality and awarded 36 months credit for time spent in
    pre-disposition custody.

[98]

The appellant says that the trial judge made three errors in determining
    the sentence he imposed:

i.

he erred in principle by placing undue emphasis on denunciation and
    deterrence and excluding from consideration the appellants rehabilitative prospects
    and the fact that he had not previously received and served a penitentiary
    sentence;

ii.

he erred in imposing a sentence that was demonstrably unfit; and

iii.

he erred in failing to award appropriate credit for time spent in
    pre-disposition custody.

[99]

Although I would not give effect to either of the appellants first two
    complaints, it is common ground that the trial judge gave inadequate credit for
    the time the appellant spent in pre-disposition custody in settling upon the
    net sentence he imposed.

[100]

The trial judge
    was satisfied beyond a reasonable doubt that the appellant had the 37 firearms
    in his possession for the purpose of selling them to others engaged in unlawful
    activities.  These firearms, especially the handguns, together with over 6,000
    rounds of ammunition had no legitimate purpose.  Handguns intimidate.  Handguns
    injure.  Handguns kill.  This arsenal was capable of wreaking havoc in any
    community into which it made its way.

[101]

Handgun crimes
    warrant exemplary sentences.  Deterrence and denunciation must be and remain
    the predominant sentencing objectives.  Realistic rehabilitative prospects
    cannot be ignored but must be subordinate to denunciation and deterrence. 
    Here, the appellants circumstances  a mature, 40 year old recidivist who has
    accumulated four dozen convictions over about two decades  equally warrant
    assignment of rehabilitation to a subservient place in the determination of a
    proportional sentence. Even accepting that the appellants initial acquisition
    of the guns was fortuitous, the indelible fact remains that he was prepared to
    put them out on the street in the hands of those bent on unlawful activities. 
    The inference that financial gain was at the root of this plan is irresistible.

[102]

It may well be
    that the sentence initially mentioned by the trial judge  15 years  was
    beyond the range of sentences appropriate for this offence and offender.  But
    that is somewhat beside the point because the trial judge recognized the
    modifying effect of the totality principle.  I would not characterize 12 years
    as unfit and that was what the application of the totality principle yielded.

[103]

The parties
    agree that the trial judge should have awarded the appellant credit for the
    entire 31.5 months of pre-disposition custody at a rate of 1.5:1 to give effect
    to the decision in
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575, a
    judgment of which the trial judge did not have the benefit at the time of
    sentencing.  The application of the
Summers
principles reduces the net
    sentence by 11 months, to eight years and one month.

Conclusion

[104]

I would dismiss
    the appeal from conviction, grant leave to appeal sentence, and allow the
    appeal from sentence by reducing the nine-year sentence imposed by the trial
    judge to a sentence of eight years, one month to reflect appropriate credit for
    pre-disposition custody.

Released: June 30, 2016 (RGJ)

David Watt
    J.A.

I
    agree R.G. Juriansz J.A.

I
    agree L.B. Roberts J.A.


