




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brown, 2021 ONCA 119

DATE: 20210226

DOCKET: C61879

Strathy C.J.O., Watt and Zarnett
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Ronald Brown

Appellant

Paul J. I. Alexander, for the appellant

Jeffrey E. Pearson, for the respondent

Heard: November 9, 2020

On appeal from the convictions entered
    by Justice Paul M. Taylor of the Ontario Court of Justice, on July 30, 2013,
    and from the sentence imposed on September 26, 2013.

Strathy C.J.O.:


A.

OVERVIEW

[1]

This appeal concerns the application of Step Six
    in
R. v. Garofoli
, [1990] 2 S.C.R. 1421.

[2]

The appellant was arrested and charged with
    various firearms offences. At trial, the Crowns case turned primarily on the
    handgun evidence that had been found by police during their execution of a
    search warrant on the appellants car. The warrants, one for the appellants
    car and one for a dwelling at 121 Dollery Court, were issued on the basis of an
    Information to Obtain (ITO) that relied heavily on the tips of a
    confidential informant (CI).

[3]

The appellant brought an application to
    challenge the validity of the warrants. He asserted that if the warrants were
    quashed, the resulting warrantless search of his car violated his rights under
    s. 8 of the
Canadian Charter of Rights and Freedoms
, and that the
    handgun evidence should be excluded under s. 24(2) of the
Charter
.

[4]

At the request of the
    Crown, the trial judge applied Step Six of
Garofoli
and produced a judicial summary of the
    portions of the ITO that had been redacted in order to protect the CIs
    identity. The trial judge determined that the redacted ITO and the judicial
    summary disclosed reasonable grounds for the warrants to be issued. The trial
    judge rejected the appellants application, upheld the warrants, and admitted
    the handgun evidence.

[5]

After the ensuing trial, the trial judge
    convicted the appellant of all charges and imposed a global sentence of six
    years, less the credit for pre-sentence custody. The appellant has since served
    that sentence.

[6]

The appellant appeals his convictions on the
    ground that the trial judge erred in upholding the warrants. The appellant
    submits that: (a) the ITO did not meet the criteria set out in
R. v. Debot
,
    [1989] 2 S.C.R. 1140; (b) the judicial summary was inadequate; and (c) the
    trial judge erred in relying on redacted information that he could not
    challenge. The appellant argues that if the warrants were erroneously
    authorized, the subsequent search of his car constituted a serious breach of
    his
Charter
rights, and that the admission of the handgun evidence
    would bring the administration of justice into disrepute. Because the handgun
    evidence was essential to the Crowns case, the appellant requests that his
    convictions be set aside, and acquittals entered.

[7]

For the reasons that follow, I would dismiss the
    appeal.

B.

BACKGROUND

[8]

On June 13, 2011, Toronto police obtained two
    warrants under s. 487 of the
Criminal Code
, R.S.C. 1985, c. C-46, to
    search a 1997 Acura motor vehicle that allegedly belonged to the appellant, and
    a residence at 121 Dollery Court.

[9]

The following day, at about 8:41 p.m., a police
    officer, conducting surveillance of the appellant, observed him walking to his car,
    which was parked at another location in Toronto. The officer noted that the
    appellant was holding onto something underneath his shirt at waistband level 
    an object that appeared to have some weight.

[10]

The officer observed the appellant enter his car on the drivers
    side, still holding onto the object. Once seated, the appellant reached over to
    the passenger-side airbag compartment, manipulat[ed] something up in that
    area, and closed the lid of the compartment by banging down on it with his
    fist. The officer then observed the appellant start his car and drive off.

[11]

Several police surveillance vehicles followed the appellants car,
    ultimately making the decision to stop it on Black Creek Drive in Toronto. They
    arrested the appellant, and searched his car pursuant to the warrant issued on
    the previous day. They found a loaded semi-automatic handgun in the
    passenger-side airbag compartment. They charged the appellant with various
    firearms offences.

C.

THE ITO and the judicial summary

[12]

As the ITO relied on information provided by a CI, it had been heavily
    redacted before its disclosure to the trial judge and defence counsel. The
    redacted ITO contained the following information about the appellant and his
    alleged offences:

·

In March 2011, the affiant of the ITO learned
    from the CIs handler that a male by the name of Jeffrey Brown was currently
    in possession of a firearm and was dealing drugs. The CI described Mr. Brown as
    male, black, in his twenties, 57 in height, with a medium build. The CI
    disclosed that Mr. Brown owned a four-door green Acura and hung out in the
    Jane and Finch area.

·

The affiant confirmed through investigation that
    the appellant owned a 1997 four-door green Acura.

·

In April 2011, the affiant was informed that the
    appellant was receiving welfare cheques at 121 Dollery Court.

·

In May 2011, police officers conducted
    surveillance at 121 Dollery Court on two occasions, and observed the appellant
    and his Acura vehicle at that location.

·

In May 2011, the affiant learned from the CIs
    handler that Mr. Brown was still in the possession of a firearm.

·

The affiant conducted additional database searches,
    and he ascertained that the appellant was prohibited from the possession of firearms
    due to a conviction for first-degree murder; that the appellant had three
    convictions, including second-degree murder; and that both the appellants
    drivers license and his Acura were registered to an address in Ajax.

·

The affiant discovered from reports in Field
    Information cards that the appellant had been investigated on three occasions
    between 2010 and 2011 in and around the Jane and Finch area. Those reports
    matched the CIs description of Mr. Brown and his car.

[13]

The Crown subsequently produced a second redacted version of the
    ITO, which disclosed portions that had previously been redacted. In particular,
    the new ITO revealed that, on a redacted date in June, the CI had told his
    handler that, Jeffrey Brown has a gun on him.

[14]

The redacted ITO contained the following information about the CI:

·

The CI had worked with police in the past and
    had been assigned a confidential source number.

·

The CI had previously provided information to
    police in relation to drug trafficking, homicides, and shootings. The CIs
    information had led to the seizure of firearms.

·

The CI provided information that he saw Mr.
    Brown in the possession of a firearm and drugs.

·

The CI had no convictions, to date, for
    perjury-related offences.

[15]

The affiant stated that he had no reason to believe the CIs tips
    about the appellant were false or malicious in nature.

[16]

The Crown asked the trial judge to apply
Garofoli
Step
    Six and provided the judge with a summary of the information that had been
    redacted from the ITO. After reviewing the summary and the unredacted ITO, the
    trial judge approved the summary. That summary, in its entirety, read as
    follows:

·

The information provided by the confidential
    informant is current.

·

The confidential informant is a carded and
    registered informant of the Toronto Police Service.

·

The information provided by the confidential
    informant has lead [
sic
] to the seizure of several firearms.

·

The information provided by the confidential
    informant is detailed and specific as it relates to Jeffrey Browns firearm.

·

The means of the confidential informants
    knowledge is disclosed.

·

The confidential informant advised that Jeffrey
    Brown confirmed that wherever Jeffrey Brown is, the firearm is.

·

The confidential informant has been in Jeffrey
    Browns presence many times.

[17]

The defence was provided with this summary. The defence applied for
    and was granted leave to cross-examine the affiant of the ITO.

D.

THE TRIAL JUDGES RULING

[18]

After hearing the submissions of counsel, the trial judge reserved
    judgment. He subsequently dismissed the appellants application to quash the
    warrants and exclude the handgun evidence.

[19]

The trial judge began his analysis by summarizing the jurisprudence
    on judicial review of an authorizing judges decision to grant a warrant. He correctly
    stated that the question before him was whether the search warrants, as
    amplified on review, could have been issued:
R. v. Grant
, [1993] 3
    S.C.R. 223, at p. 251, citing
Garofoli
, at p. 1452.

[20]

The trial judge appreciated that in a case involving a confidential
    informant, the sufficiency of the ITO must be assessed according to the three
Debot
factors: whether the tip is compelling, whether the CI is credible, and whether
    the tip has been confirmed by independent police investigation:
R. v. Rocha
,
    2012 ONCA 707, 112 O.R. (3d) 742, at para. 16, citing
Debot
, at p. 1168.

[21]

The trial judge determined that the redacted ITO contained some
    information on the credibility of the CI, but omitted details such as the CIs
    criminal record. He noted that the ITO was sloppily drafted and used
    remarkably similar language to the phraseology this court criticized in
Rocha
.
    However, he found that there was confirmatory evidence of the CIs tips in
    the form of police observations and street checks. Furthermore,

The Judicial Summary indicates that the
    Informants information is detailed and specific, the means of his knowledge is
    disclosed, the informant has been in the Applicants presence many times, and
    the Informant confirms that the Applicant is always in possession of the
    firearm.

[22]

The trial judge held that, based on the redacted ITO and the
    judicial summary, the
Debot
factors for the issuance of the warrants
    had been satisfied. In the alternative, he mentioned that if he had erred in
    his analysis, his review of the unredacted ITO and the search warrants met the
Debot
standard.

E.

PARTIES SUBMISSIONS

(1)

The Appellants submissions

[23]

The appellant submits that the trial judge erred in finding that the
    ITO satisfied the
Debot
criteria, in applying the
Garofoli
Step Six procedure, and in admitting the handgun evidence.

[24]

With respect to the
Debot
criteria, the appellant contends
    that the CIs tips were neither credible nor corroborated. He argues that the
    ITO disclosed minimal information about the CIs credibility in order to create
    a veneer of honesty, but failed to include essential details, such as the
    CIs motive and full criminal record. The trial judge properly acknowledged
    these omissions, but failed to explain why he concluded that the CI was
    credible. The appellant also submits that the trial judge failed to conduct a
    meaningful analysis of whether the ITO was corroborated. Most of the
    corroborative information obtained by police investigation concerned commonplace
    details about the appellant, and the only other source relied upon by the
    affiant was a dated and unrelated youth criminal record. While the appellant
    also disputes the trial judges finding that the CIs tips were compelling, he asserts
    that in the absence of credibility and corroboration, the ITO cannot stand.

[25]

The appellant further submits that the trial judge erred in his
    application of
Garofoli
Step Six because the judicial summary did not
    provide a reasonable basis on which to challenge the ITO. Moreover, the trial
    judge based his decision to uphold the warrants on redacted information that
    had not been summarized.

[26]

The appellant contests the Crowns argument that if the ITO is quashed,
    the police had reasonable and probable grounds to carry out a warrantless
    arrest and a search incident to that arrest. The appellant maintains that the
    Crown did not adduce any evidence at trial as to whether the arresting officer
    had subjective grounds to justify a warrantless arrest, and that this court
    should not make that inference from the officers evidence.

[27]

The appellant consequently submits that the trial judge should have
    excluded the handgun evidence under s. 24(2) of the
Charter
. The
    affiants sloppy drafting of the ITO, with its omissions, exaggerations, and
    misleading statements, discussed below, pushed the
Charter
breach to
    the serious end of the spectrum. In addition, the impact on the appellants
Charter
rights was significant. The appellant claims that the public interest in
    prosecuting the case cannot tip the balance towards admission of the handgun
    evidence when the other two branches of the s. 24(2) test favour its exclusion.

(2)

The Crowns submissions

[28]

The Crown submits that the trial judges decision is entitled to
    deference. While some of the appellants criticisms of the ITO may be fair, the
    Crown asserts that they do not undermine the basis for the issuance of the
    search warrants. The trial judge was aware of the need to balance the interest
    in protecting the CIs identity with the appellants fair trial rights. The
    trial judge analyzed the
Debot
factors in that context, and found that
    the CIs tips were credible, corroborated and compelling.

[29]

The Crown submits that the trial judge correctly applied
Garofoli
Step Six. He could not have allowed more information to be disclosed, either in
    the judicial summary or in the cross-examination of the affiant by defence
    counsel, without exposing the CIs identity. When the judicial summary is read
    together with the redacted ITO, it demonstrates that the warrants
could
have been issued.

[30]

The Crown submits that if the ITO is struck down, there were exigent
    circumstances to justify the arrest of the appellant and the search of the Acura
    incident to arrest. As a result, the handgun evidence was properly admitted at trial.

F.

analysis

(1)

Applicable principles

(a)

The requirements for issuing a warrant

[31]

A justice issuing a search warrant must have reasonable grounds to
    believe that an offence has been committed. The material in support of the
    warrant must raise a reasonable probability of discovering evidence of the
    crime at the place of the proposed search:
R. v. MacDonald
, 2012 ONCA
    244, at para. 6;
R. v. Herta
, 2018 ONCA 927, 143 O.R. (3d) 721, at
    para. 20, citing
Hunter v. Southam Inc.
, [1984] 2 S.C.R. 145, at pp.
    167-68.

[32]

Debot
confirms that where the ITO is
    based primarily on the information obtained from a CI, the authorizing justice
    must make three inquiries: whether the information about the crime was compelling;
    whether the source of the information was credible; and whether the information
    was corroborated by the police before applying for a search warrant. These are
    not watertight inquiries. Weaknesses in one of the factors may be compensated
    by the strength of others. The totality of the circumstances must be
    considered in order to meet the standard of reasonable probability:
Debot
,
    at p. 1168;
MacDonald
, at paras. 6-7.

(b)

The test for the sufficiency of a warrant

[33]

A warrant is presumptively valid:
R. v. Sadikov
, 2014 ONCA
    72, 305 C.C.C. (3d) 421, at para. 83;
R. v. Pires; R. v. Lising
, 2005
    SCC 66, [2005] 3 S.C.R. 343, at para. 30. A party challenging the issuance of a
    warrant bears the onus of demonstrating that it was not validly issued.

[34]

The trial judge correctly identified the test for the sufficiency of
    a warrant. A reviewing court is not entitled to conduct a rehearing of the
    application for the issuance of a warrant, or to substitute its opinion for
    that of the authorizing justice. As stated by Sopinka J. in
Garofoli
,
    at p. 1452, [i]f, based on the record which was before the authorizing judge
    as amplified on the review, the reviewing judge concludes that the authorizing
    judge
could have
granted the authorization, then
    he or she should not interfere (emphasis added). See also
R. v. Araujo
,
    2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51;
R. v. Reid
, 2016 ONCA
    524, 132 O.R. (3d) 26, at para. 73, leave to appeal refused, [2016] S.C.C.A.
    No. 432.

(c)

Garofoli
Step Six

[35]

In
R. v. Crevier
, 2015 ONCA 619, 330 C.C.C. (3d) 305,
    Rouleau J.A. provided a detailed description of the
Garofoli
Step
    Six procedure. Step Six arises in the context of an accuseds challenge to a
    search warrant that is issued on the basis of a CIs tips. In order to protect
    the CIs identity, the ITO containing the CIs tips is redacted before its
    disclosure to the accused. The ITO may consequently become incapable of
    supporting the warrants authorization. Step Six allows the Crown to rely on
    the unredacted ITO to defend the warrants validity. In so doing, Step Six
    attempts to address the underlying tensions between the courts duty to protect
    the confidential communications of CIs and police officers, and the
    constitutional right of the accused to make full answer and defence.

[36]

When Step Six is invoked, the trial judge provides defence counsel
    with a summary of the redacted portions of the ITO:
Garofoli
, at p.
    1461. The summary is usually drafted by the Crown and is then vetted by the
    judge before it is provided to the defence.

[37]

A summary is just that: By its very nature, a summary is general,
    not detailed. Its predominant characteristics are conciseness and brevity:
Reid
(2016), at para. 88. However, the summary must provide the accused with
    sufficient information to mount both a facial and sub-facial challenge to the
    ITO, and to question whether the affiant made full and frank disclosure
    regarding the reliability of the CI and of their tips:
Crevier
, at
    para. 83. This would also include information related to the three
Debot
factors, namely whether the CI is credible, and whether the information is
    compelling and corroborated:
Crevier
, at para. 84.

[38]

In determining whether or not to uphold a warrant, the trial judge
    can consider the unredacted ITO, but only if satisfied that the accused is
    sufficiently aware of the nature of the redacted material such that they can
    mount a challenge in argument or by evidence. Put another way, the judicial
    summary of the redacted material provided to the accused, combined with the
    redacted ITO, must be enough to ensure that the accused is in a position to
    exercise his or her right to make full answer and defence. Only then can step
    six be employed:
Crevier
, at para. 43.

[39]

Once in receipt of the judicial summary, the defence, using evidence
    from Crown disclosure, evidence from the preliminary hearing, and/or evidence
    from other sources, such as cross-examination of the ITOs affiant, may attempt
    to persuade the trial judge that the unredacted ITO cannot justify the issuance
    of the warrant.

(d)

The standard of review on
Garofoli
applications

[40]

A trial judges decision on a
Garofoli
application is
    entitled to deference. An appellate court should not interfere with that
    decision in the absence of an error of law, a misapprehension of the evidence,
    or a failure to consider relevant evidence:
R. v. Reid
, 2017 ONCA 430,
    at para. 8.

(2)

Application of the principles

[41]

It is important to contextualize this case in the evolution of the
Garofoli
Step Six jurisprudence. This courts judgment in
Rocha
was released
    more than a year after the ITO was sworn on June 13, 2011. Thus, while the
    trial judge had the benefit of
Rocha
when he heard the application in late
    2012 and early 2013, and when he issued his reasons on July 30, 2013, the
    affiant of the ITO did not have the benefit of
Rocha
s guidance when
    he swore the ITO. Moreover, the development of the
Garofoli
jurisprudence
    was at a relatively early stage at the time the application was heard. As
    defence counsel put it, they were in a new frontier of the law.

[42]

I now turn to the requirements of
Debot
, set out earlier.

(1)

The
Debot
Factors

(i)

Was the CI credible?

[43]

While the three Cs of
Debot
are to be considered
    together, I agree with the appellant that if the CIs credibility is weak, it
    can impact the assessment of the other two factors. Evidence that appears to be
    compelling may be rendered less so if the credibility of the CI is weak. Corroboration
    of evidence of low credibility obviously carries less weight than corroboration
    of evidence of high credibility.

[44]

Typically, the authorizing justice will be concerned to know the
    CIs criminal record, their track record in providing useful information to
    police, and whether they had a particular motive for providing the information
    to police.

[45]

Here, the appellant notes that the affiant did not disclose the full
    criminal record of the CI, or whether there were any outstanding charges, to
    the authorizing justice. The affiant simply stated that the CI had no
    convictions, to date, for perjury related offences. The affiant testified that
    at the time of drafting the ITO, it was not his practice to inquire about the
    CIs criminal record, and that he obtained the information stated above from
    the CIs handler. He candidly acknowledged, on cross-examination, that the
    language he had used to describe the CIs criminal record was no longer part of
    the acceptable lexicon.

[46]

The appellant argues that in light of
Rocha
, the affiants
    odd language and omissions with respect to the CIs criminal record made the
    CIs credibility weak. The appellant emphasizes that the Crown counsel at trial
    had conceded the ITOs insufficient details, and that the trial judge had criticized
    the same in his decision. The appellant asserts that the trial judge failed to
    explain how he came to his conclusion about the CIs credibility, and draws our
    attention to the affiants other omissions.

[47]

In particular, the appellant submits that the affiant failed to disclose
    any motive the CI might have had for assisting police, such as financial or
    other consideration, public spiritedness, or some form of
animus
.
    There was also no meaningful information as to the CIs reliability, whether
    the CI had previously provided false or unreliable information, or whether the
    CIs tips had led to convictions in the past.

[48]

The Crown acknowledges that there is some merit to the appellants
    submissions about the embarrassing shortcomings in the ITO. The language is
    sloppy, referring, for example, to the appellant having a previous conviction
    for first-degree murder when, in fact, he had been charged with first-degree
    murder, but convicted of second-degree murder. In addition, the Crown noted
    that the affiants failure to disclose the CIs criminal record was
    inexcusable. However, unlike the trial Crown, the appeal Crown did not concede
    that the CIs credibility was weak. He submitted that the trial judge was alive
    to all these shortcomings, and yet he made no finding that the affiant
    deliberately misled the authorizing justice.

[49]

I am inclined to agree with the Crowns position. The redacted ITO
    stated that:

The [CI] has provided information to police in
    the past and has been assigned a confidential source number. There is no
    indication that the information provided would be false or malicious in nature
as the confidential source has been proven in the past to be
    reliable
. [Emphasis added.]

[50]

Moreover, the judicial summary disclosed that the [CI] is a carded
    or registered informant of the Toronto Police Service, and that the
    information provided by the [CI] has lead [
sic
] to the seizure of
    several firearms. The fact that the CI was formally registered on police records
    spoke to their reliability, as did the fact that the CI had previously provided
    information leading to the seizure of firearms  the very crime at issue here. While
    it would have been preferable for the affiant to have included information
    about the CIs motive, it can be inferred that the CI had some motive for
    providing the information, although no motive for providing false or misleading
    information, and a history of providing reliable information.

[51]

In summary, while the trial judge did not thoroughly explain why he
    found the CI to be credible, and while there were some shortcomings in the
    affiants disclosure of the CIs criminal record, track record, and motive,
    these were balanced by the CIs history as a registered police informant with
    a record of providing reliable information that had led to the seizure of
    firearms. Deference is owed to the trial judges conclusion on this factor.

(ii)

Was the CIs information corroborated?

[52]

The appellant submits that the police only corroborated the CIs
    information in relation to neutral details that would have been known to
    anyone. Specifically, the police corroborated:

·

the colour and make of the appellants vehicle 
    a four-door green Acura;

·

the description of the appellants appearance 
    a black male in his twenties, 5 7 tall, medium build; and

·

the fact that the appellant was a drug dealer
    and hung out in the Jane and Finch area of Toronto.

[53]

I agree with the respondent that the corroborative effect of some of
    this information is minimal when viewed in isolation. However, the information
    cannot be viewed in isolation. When taken together, as it must be, the
    information of the CI was corroborated by the polices independent inquiries. A
    police database check confirmed the appellants birth date, and the fact that
    he owned a four-door green Acura. The ITO also disclosed that the affiant had obtained
    police Field Information cards, indicating that the appellant had been
    observed on March 23, 2010, February 15, 2011, and April 2, 2011 in the Jane
    Street area. On one of those occasions, the appellant produced his drivers
    licence as identification, and on two of those occasions, he was observed in the
    Acura registered under his name.

[54]

In addition, on two occasions in May 2011, police observed the
    appellant at 121 Dollery Court, the location where his welfare payments were
    sent. On the first occasion, May 17, he was observed leaving the dwelling,
    entering the Acura which was parked in the driveway, and driving away. On the
    second occasion, May 30, he was observed leaving the dwelling, walking up to
    the drivers side of the vehicle, removing something from the front of the
    vehicle, placing it under his sweater, and returning to the dwelling.

[55]

As this court explained in
MacDonald
, at para. 20, police
    are not obliged, before conducting the search, to confirm the very criminality
    alleged by the tipster. There was, therefore, corroboration of the CIs information
    on the appellant. The police confirmed the fact that the appellant drove a
    four-door green Acura, and that he hung out in the Jane and Finch area.
    Although the CI was not able to identify the appellants residence, police were
    able to corroborate the appellants ownership of the Acura and his connection
    to 121 Dollery Court, where they observed both the appellant and his Acura.

(iii)

Was the CIs information compelling?

[56]

The appellant submits that he has limited ability to assess whether
    the CIs information was compelling because the redactions were substantial,
    and the judicial summary was thin. He argues that, based on the information
    available to him, there was no compelling evidence to indicate that a firearm
    would be found in either the Acura or the residence at 121 Dollery Court at the
    time of the search. He relies on
Herta
, at para. 51, in which this
    court found that the CIs statement that the accused would not go anywhere
    without the gun was not sufficiently compelling to justify a search at any
    location the accused had attended as [t]his would have turned [the accused]
    into walking, ready-made grounds for belief.

[57]

To assess whether the information was compelling, it is necessary to
    examine both the redacted ITO and the judicial summary. The summary indicates
    that the CI had been in the appellants presence many times; that the CIs
    information about the firearm was detailed and specific; that the means of
    the CIs knowledge was disclosed; and that the CIs information was current. The
    summary also mentioned that the CI had advised his handler that wherever
    Jeffrey Brown is, the firearm is.

[58]

This information is compelling because it established that the CI
    was familiar with the appellant, that the CIs observations were first-hand,
    and that the information was current. The CI was able to give a detailed and
    specific description of the firearm, which indicated that the CI had personally
    seen it. Furthermore, the appellant confirmed to the CI that he always had the
    firearm with him. Read together, the redacted ITO and the judicial summary established
    that the CIs information was compelling.

[59]

Despite the appellants submissions, I do not regard this as a case
    similar to
Herta
. In
Herta
, there was little information
    about the CIs credibility, and the court found that corroboration was weak.
    The court rejected the proposition that if a CI has seen someone with a gun at
    some point in the past, [it] means a search warrant can necessarily [be issued]
    for any place attended by that person in the future. In this case, the CIs similar
    statement was based not on speculation, but on what the appellant had said
    about his own possession of his weapon: effectively, I carry it wherever I
    go.

(iv)

Conclusion on the
Debot
factors

[60]

In conclusion, the trial judge was alive to the shortcomings in the
    ITO, and appropriately recognized that some of them were attributable to the lack
    of judicial guidance at the time of its preparation. The trial judge applied
    the
Debot
factors and did not find that the shortcomings reflected a
    deliberate attempt by the police to mislead the authorizing justice. The trial
    judge concluded that the information in the ITO was credible, compelling, and
    corroborated. The trial judges reasons demonstrate no misunderstanding of the
    evidence and no error of law. The trial judges decision is entitled to
    deference. I would not give effect to this ground of appeal.

(a)

Garofoli
Step
    Six

[61]

The appellant submits that the trial judge committed two additional
    errors in applying
Garofoli
Step Six. First, the trial judge failed to
    appreciate that the judicial summary was inadequate; and second, the trial
    judge relied on information that was contained in the unredacted ITO and was
    not summarized. I do not accept either submission.

[62]

On the first point, I note that the appellant not only had the
    benefit of the judicial summary, but also of a cross-examination of the
    affiant, which was conducted with leave of the trial judge. More importantly,
    the judicial summary complied with the suggestions set out in
Crevier
.
    It described the
nature
of the redacted
    information. The appellant, armed with the ITO, the judicial summary, and the
    cross-examination, had sufficient information to mount a facial or subfacial
    challenge to the ITO, and to argue that the requirements of
Debot
had
    not been met. That his challenge failed was not due to his inability to effectively
    challenge the ITO.

[63]

On the second point,
Crevier
, at para. 90, states that [t]o
    the extent that the accused is not sufficiently equipped to challenge certain
    redactions, the trial judge must not consider them. The trial judge followed
Crevier
and made it clear that his reference to the unredacted ITO was an alternative
    in case he erred in his analysis of the
Debot
factors. As I would
    uphold his analysis on the
Debot
factors, I consider it unnecessary to
    address this submission.

(b)

Other issues

[64]

Although the trial judge suggested a Step Seven to
Garofoli
,
    which would permit an appellate court to review the unredacted ITO, I do not
    find it necessary to address that issue, and have not opened the sealed ITO
    packet.

[65]

Nor do I find it necessary to address the respondents alternative
    submission that exigent circumstances permitted the police to conduct a
    warrantless search of the appellants car, pursuant to ss. 487.11 and 495(1)(a)
    and (b) of the
Criminal Code
.

G.

Disposition

[66]

For these reasons, I would dismiss the appeal.

Released: February
    26, 2021  G.R.S.

George R. Strathy C.J.O.

I agree. David Watt J.A.

I agree. B. Zarnett J.A.


