



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Thompson, 2017 ONCA 204

DATE: 20170309

DOCKET: C59957

MacFarland, van Rensburg, and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daron Anthony Thompson

Appellant

Jennifer Penman, for the appellant

John Neander, for the respondent

Heard: February 17, 2017

On appeal from the convictions entered by Justice Brian P.
    OMarra of the Superior Court of Justice, sitting with a jury, on April 23,
    2014.

ENDORSEMENT

[1]

The appellant was convicted of several offences involving the possession
    of a firearm and a dangerous weapon. The convictions followed a trial by judge
    and jury after the appellants
Charter
applications under ss. 7, 8,
    and 9 were dismissed. The application reasons of Pattillo J. are reported at
    2014 ONSC 250.

[2]

This appeal concerns the appellants s. 8 application to exclude
    evidence obtained pursuant to search warrants obtained under the
Controlled
    Drugs and Substances Act
,
S.C.
    1996, c. 19,

and the
Criminal Code
,
R.S.C., 1985, c. C-46
. The warrants were based on information
    provided by a confidential informant (CI), computer checks of police
    databases, and several hours of surveillance of the appellant.

[3]

The appellant challenged the validity of the warrants. The Crown
    conceded that even with the judicial summary of the redacted material in the
    ITO, it could not support the authorization of the warrants. The Crown then brought
    an application to have the application judge consider the unredacted ITO
    pursuant to step six of the procedure established in
R. v.

Garofoli
,
    [1990] 2 S.C.R. 1421. The Crowns application was granted, the s. 8 application
    was dismissed, the evidence obtained in the searches was admitted, and ultimately
    the appellant was convicted of the offences.

[4]

The appellant submits that the application judge erred in two ways:
    first, by not permitting the appellant to challenge the sub-facial validity of
    the redacted portions of the ITO; and second, by denying the appellants
    request for the appointment of
amicus curiae
during the
ex parte
process.

[5]

The appeal is dismissed for the reasons that follow.

A.

Was a sub-facial challenge permitted?

[6]

The principles governing step six of
Garofoli
were elaborated by
    this court in
R. v. Crevier
, 2015 ONCA 619, 330 C.C.C. (3d) 305. There
    is no need to repeat the analysis here.

[7]

Some comments made by the application judge suggest that the appellant
    was not permitted to make a sub-facial challenge. However, when the application
    judges reasons are read as a whole, it is clear that the appellant was
    permitted to make, and did make, the sub-facial challenge to the warrant he was
    entitled to make.

[8]

The appellant used the judicial summary, the unredacted portions of the ITO,
    and information obtained from cross-examining the investigating officers and
    the CIs handler at the preliminary inquiry and as part of his s. 7
    application, in arguing that the ITO contained misleading statements and
    material omissions. He was thus permitted to go behind the ITO to challenge the
    reliability of its content, with a view to excising parts that were misleading
    or inaccurate.

[9]

The application judge dismissed the appellants sub-facial challenge. He
    accepted the evidence of Officers Spencer, Warrener, and Edgar concerning the
    surveillance of the appellant and found that the ITO neither omitted any
    material facts concerning that surveillance nor was the information it provided
    misleading. The application judge specifically addressed the defence submission
    that the appellant was associated with a second address. He found that the ITO
    was not misleading in this regard and that the police conducted an adequate
    investigation to corroborate the CIs tip. The appellant was seen leaving and
    using a key to lock the apartment that was subject to the warrant. Although
    there was evidence that the appellant was associated with another address, the application
    judge found that the police were not required to investigate further and that
    evidence as to where the appellants car was parked at another address was not
    a material fact that needed to be disclosed.

[10]

The
    appellant submits that the judicial summary was inadequate to permit him to
    mount a sub-facial challenge. He provided an extensive list of information that
    he asserted required clarification. For example, the appellant says that there
    was no information as to the source of the CIs alleged knowledge, the CIs motivations,
    how the CI knew the appellant, if at all, and how the CI connected the
    appellant with the apartment in question.

[11]

The
    application judge dismissed the appellants request for additional information
    because he was satisfied that further disclosure could and would likely
    disclose the CIs identity.
The appellants application
    to cross-examine the sub-affiant on issues relating to the CI was dismissed for
    the same reason.

[12]

As
Crevier
makes clear at para. 83, the
summary
    must provide the accused with a meaningful basis upon which to challenge
    whether the affiant made full and frank disclosure regarding the reliability of
    the informer and his or her tips, as required by
Debot
 (
R. v. Debot
, [1989] 2 S.C.R. 1140).
    A summary is not a complete substitute for disclosure, given the need to
    protect informer privilege. It is, by its very nature, general rather than
    detailed:
R. v. Reid,
2016 ONCA 524, 132 O.R. (3d) 26, at para. 88,
    leave to appeal refused, [2016] S.C.C.A. No. 432. A summary is sufficient if it
    provides an accused with sufficient knowledge about the
nature
of the
    redactions to enable them to be challenged in argument or by evidence:
Crevier
,
    at para. 72.

[13]

In
    this case, the judicial summary explains the nature of the redacted information
    using the same headings, page numbers, and paragraph numbering and lettering as
    the redacted ITO. It was sufficient to permit the appellant to challenge, by
    argument or evidence, whether the CI was credible, whether the information
    provided by the CI was compelling, and whether the CIs information was
    corroborated, as required by
Debot
. Indeed, during his submissions on
    the warrants validity, the appellant challenged aspects of the redacted material
    such as the currency of the CIs information and how the CI came upon his or
    her knowledge.

[14]

This
    ground of appeal must be rejected.

B.

Should
amicus curiae
have been appointed?

[15]

The
    appellant submits that
amicus curiae
should have been appointed in
    this case. The appellant submits, further, that
amicus
should be
    appointed in the vast majority of cases because it is by and large a
    constitutional necessity to step six.

[16]

These
    submissions must be rejected.

[17]

As
    this court noted in
R. v. Shivrattan,
2017 ONCA 23, at paras. 65-66,
the

trial judge has discretion
    to appoint
amicus
to assist in the consideration of issues relevant to
    confidential informants in particularly difficult cases.
But
the appointment of
amicus
on
    a step six procedure is the exception rather than the rule. It is incumbent on
    the defence to demonstrate why the appointment of
amicus
is necessary in
    a particular case and to set out a proposed procedure for the use of
amicus
that protects the confidentiality of the CIs identity.

[18]

The
    application judge accepted that
amicus
could be appointed but rejected
    the appellants proposal that
amicus
be appointed in this case. He was
    satisfied that the information the appellant had  the judicial summary, along
    with unredacted information in the ITO and the information obtained from
    cross-examinations of the affiant and sub-affiant  was sufficient to enable
    the appellant to argue and to call evidence to establish that the warrants were
    not properly issued. The application judges primary reason for rejecting the
    appointment of
amicus
was that it was unnecessary in the circumstances
    of this case.

[19]

This
    was the application judges decision to make and we see no basis to interfere
    with the exercise of his discretion.

[20]

The
    appellant takes issue with a second reason proffered by the application judge
    for rejecting the appointment of
amicus
: that
amicus
would be
    effectively clothed with the duties of the appellants counsel and would cease
    to be a friend of the court. The appellant submits that
amicus
would
    owe obligations to the court, not to defence counsel or the accused.

[21]

However,
    as the court noted in
Shivrattan
, at
    para. 67,


there are many sensitive issues that would have to be
    resolved before the trial judge could appoint
amicus
on a Step Six procedure, including the
    relationship between
amicus
and
    defence counsel. Steps would have to be taken to ensure that
amicus
did not inadvertently disclose anything that would
    reveal the identity of the CI.

[22]

Given
    the application judges finding that the appointment of
amicus
was
    unnecessary in this case, nothing further need be said about this concern.

[23]

We
    note simply that the appellants submission that
amicus
should be
    appointed in the vast majority of cases must be rejected. Nothing in the case
    law requires or supports this approach.

[24]

It
    is wrong to assert, as the appellant does, that the step six process is
    tantamount to a secret trial.
A
Garofoli
review is an evidentiary hearing, and as such is concerned with the
    admissibility of evidence obtained pursuant to a search warrant that is
    presumptively valid:
Reid
, at para. 94. The essential premise underlying
    the step six procedure is that it may be used only if an accused is
    sufficiently aware of the nature of the excised material to challenge it in
    argument or by evidence:
Garofoli
, at p. 1461.

[25]

Although
    in exceptional circumstances
amicus
may have a role to play in a step
    six procedure, no basis has been shown for interfering with the application
    judges decision not to appoint
amicus
in this case.

[26]

The
    appeal is therefore dismissed.

J. MacFarland J.A.

"K. van Rensburg
    J.A."

Grant Huscroft J.A.




