



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shivrattan, 2017 ONCA 23

DATE: 20170117

DOCKET: C60067 and C60484

Doherty, Hourigan and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jermin Shivrattan and Stanley Silvera

Appellants

Faisal Mirza, for the appellant Jermin Shivrattan

Eva Taché-Green, for the appellant Stanley Silvera

John Neander, for the respondent

Heard:  October 6, 2016

On appeal from the convictions entered by Justice Todd
    Ducharme of the Superior Court of Justice on October 27, 2014 and the sentence
    imposed on the appellant, Stanley Silvera, on December 4, 2014.

Doherty J.A.:




I



overview

[1]

On August 4, 2011, the police executed a telewarrant at units 904 and 504
    in a condominium at 2464 Weston Road in Toronto.  They found the appellant,
    Silvera, in apartment 904 and the appellant, Shivrattan, in apartment 504.  The
    police discovered firearms, ammunition, cocaine and marihuana in both
    apartments.

[2]

At trial, the appellants unsuccessfully challenged the telewarrant
    alleging a breach of s. 8 of the
Charter
(the s. 8 application).  On
    the trial proper, both appellants argued that the Crown had failed to prove
    they were in possession of the guns, ammunition and drugs found in the units in
    which they were arrested.  Shivrattan testified that he was dog sitting for a
    friend in unit 504 when the police arrived and had no knowledge of the contents
    of the unit.  Silvera did not testify.

[3]

The trial judge found that Shivrattan was in possession of a loaded
    handgun found lying at his feet when the police entered the apartment bedroom. 
    The trial judge found Shivrattan guilty on various counts relating to that
    firearm.  He acquitted Shivrattan on the charges relating to the other contraband
    found in unit 504.  The trial judge found that Silvera was in possession of the
    firearms, ammunition and drugs found in apartment 904.  He found Silvera guilty
    on all counts.

[4]

Silvera received an effective sentence of 10 years: five years in
    custody with five years credit for presentence custody.  Shivrattan received an
    effective sentence of six years: one year, two months in custody with four
    years and 10 months credit for presentence custody.

[5]

The appellants conviction appeals focus on the trial judges rulings on
    the s. 8 application.  They do not challenge their convictions on any other
    ground.  Silvera also appeals his sentence.  Shivrattan does not appeal
    sentence.


II



the section 8 application at trial

[6]

The telewarrant was issued on August 4, 2011, on the basis of an
    Information to Obtain (ITO) sworn by Detective Constable Correia (the
    affiant).  The affiant swore that he had reasonable and probable grounds to believe,
    and did believe, that cocaine and related material would be found in units 904
    and 504.  The ITO alleged that Silvera was using both apartments to further his
    drug trafficking activity.  The ITO did not mention Shivrattan.  The grounds
    for the affiants belief came almost exclusively from information provided to
    him by a confidential informant (CI).

[7]

Prior to the trial, the Crown gave the defence a heavily redacted
    version of the ITO.  With a few minor and, for present purposes, irrelevant
    exceptions, the redactions were made to protect the identity of the CI.

[8]

On the s. 8 application, the defence filed the transcript of the
    cross-examination of the affiant at the preliminary inquiry.  Although the
    defence could not challenge the warrant at the preliminary inquiry, they could
    seek to cross-examine the affiant under the authority of
R. v. Dawson
(1998), 39 O.R. (3d) 436 (C.A.).  The Crown had agreed that the affiant could
    be cross-examined on parts of the ITO at the preliminary inquiry. The
    preliminary inquiry judge carefully controlled the questions which could be put
    to the affiant to protect the CIs identity.

[9]

On the s. 8 application, the defence also filed a transcript of Sally-Ann
    Doomans preliminary inquiry testimony.  Dooman was the property manager of 2464
    Weston Road until August 5, 2011.  According to the affiant, Dooman supplied corroboration
    connecting Silvera to units 904 and 504 and connecting unit 904 to ongoing drug
    activity.  The affiants summary of his conversation with Dooman was one of the
    few parts of the ITO that had not been redacted.

[10]

The Crown conceded that the redacted version of the ITO did not reveal
    grounds upon which a justice, acting judicially, could be satisfied that there
    were reasonable grounds to search the two units.  In other words, the Crown
    conceded that without the CIs information, the warrant could not have issued.

[11]

The Crown did not, however, concede the s. 8 application.  Instead, the
    Crown resorted to what has come to be known as a Step Six procedure.  That
    procedure was first described in
R. v. Garofoli
, [1990] 2 S.C.R. 1421,
    and has been discussed at some length by this court in
R. v. Crevier
, 2015
    ONCA 619, 330 C.C.C. (3d) 305; and
R. v. Reid
, 2016 ONCA 524, 132 O.R.
    (3d) 26, leave to appeal filed, [2016] S.C.C.A. No. 432.  When the Crown
    invokes Step Six, the trial judge gives defence counsel a judicial summary of
    the redacted parts of the ITO.  Defence counsel, using that summary, the redacted
    ITO and whatever additional information it has available to itsuch as Crown trial
    disclosure or preliminary inquiry transcriptsattempts to convince the trial
    judge that the contents of the unredacted ITO, which defence counsel has not
    seen, could not justify the issuance of the search warrant:
Garofoli
,
    at p. 1461; and
Reid
, at paras. 84-86.

[12]

The Crown prepared a proposed summary of the redacted parts of the ITO. 
    The trial judge went through that summary in open court, in the presence of
    defence counsel, comparing it with the unredacted version of the ITO, while at
    the same time being careful to not reveal the contents of the redacted parts of
    the ITO.  The trial judge ultimately accepted many, but not all, of the
    proposed redactions.  Some he found were unnecessary to protect the CIs identity. 
    The trial judge also modified some of the Crowns proposed summaries of the
    redacted parts of the ITO to include additional information for the defence.

[13]

The Crown accepted the trial judges summary and his modifications to
    the redactions.  Defence counsel received a copy of the ITO as ultimately redacted
    by the trial judge and the trial judges summary of the redactions.

[14]

Defence counsel advanced four motions on the s. 8 application.  First, relying
    on
R. v. Garofoli
, counsel argued that the judicial summaries of the
    redacted portions of the ITO did not adequately inform the defence of the contents
    of the redacted portions of the ITO to permit the defence to properly challenge
    the ITO.  Counsel submitted that under
Garofoli
, absent adequate
    judicial summaries, the redacted parts of the ITO could not be considered in
    assessing the adequacy of the grounds set out in the ITO.  Defence counsel,
    relying on the Crowns concession, submitted that without the information in
    the redacted portions of the ITO, there was no basis upon which the warrant
    could be issued.

[15]

Second, counsel argued that
amicus
should be appointed and allowed
    to see the unredacted ITO to assist the trial judge in determining what
    redactions were necessary and how best to summarize the redactions to maximize
    the information available to defence counsel without compromising the
    confidential informant privilege.

[16]

Third, defence counsel sought leave to cross-examine the affiant on
    certain specified parts of the ITO, including the information Dooman supplied
    to the affiant.

[17]

Fourth, counsel argued that even if the trial judge could consider the
    unredacted parts of the ITO, the ITO did not justify the issuance of the
    warrant based exclusively on information from a CI.  In support of the
    argument, counsel argued that some of the statements in the ITO were false or,
    at least, materially misleading.

[18]

The trial judge ruled first on the defence motions that the judicial
    summaries were inadequate and that
amicus
should be appointed to
    assist the trial judge in providing a more detailed summary.  He dismissed both
    motions.

[19]

The trial judge dealt next with the motion to cross-examine the
    affiant.  He dismissed that motion.  I will address the trial judges reasons
    in more detail below.

[20]

Lastly, the trial judge considered the submission that the ITO,
    including the redacted portions, could not justify the issuance of the
    warrant.  In rejecting that submission, the trial judge observed that he had
    reviewed the unredacted ITO and that it contained ample grounds to justify the warrant.

[21]

The order in which the motions were argued and decided on the s. 8
    application merits a comment.  Counsel argued the adequacy of the judicial
    summaries on the Step Six motion before the trial judge ruled on the defence
    motions to appoint
amicus
and to cross-examine the affiant.  Both of
    those motions, if successful, may have provided the defence with additional
    information to assist in their challenge to the adequacy of the judicial
    summary and ultimately the ITO:
Crevier
, at paras. 63, 74, 77.  The
    motions to appoint
amicus
and to cross-examine the affiant should have
    been argued and decided before counsel addressed the adequacy of the judicial
    summary and ultimately the adequacy of the ITO.  As it turns out, the order in
    which the motions were brought and decided did not matter as the trial judge
    dismissed the motion to appoint counsel and the motion to cross-examine the
    affiant.


III



the arguments on appeal

[22]

The four arguments outlined above are renewed on appeal.  Counsel for
    Shivrattan further submits that the ITO did not contain grounds that could reasonably
    justify a night search.  Counsel contends that without proper justification for
    a night search, the execution of the warrant at night renders the searches
    unreasonable and a violation of s. 8.  Counsel for Silvera also makes one
    additional submission.  She argues that the trial judges reasons for holding that
    the warrant was properly issued are so inadequate as to constitute a
    freestanding error in law.

[23]

I will first address the argument that the trial judge erred in law in
    refusing to allow the defence to cross-examine the affiant.  I think this
    submission succeeds and is fatal to the convictions.

A.

the refusal to permit cross-examination of the affiant

(i)

Challenging the validity of a search warrant

[24]

At trial, the defence may challenge the constitutionality of a search conducted
    under the authority of a search warrant by demonstrating that the contents of
    the ITO relied on to obtain the warrant could not justify its issuance.  If the
    challenge is successful, the search is treated as warrantless, rendering it unreasonable
    and contrary to s. 8 of the
Charter
.  The defence must then
    demonstrate that the fruits of the search should be excluded under s. 24(2) of
    the
Charter
:
R. v. Pires
, 2005 SCC 66, [2005] 3 S.C.R. 343,
    at para. 8.

[25]

On a challenge to the validity of the warrant, the reviewing judge does
    not make a
de novo
assessment of the ITOs contents.  Rather, he or
    she decides whether those contents provide a basis upon which the issuing justice,
    acting judicially, could find reasonable and probable grounds to believe that
    an offence has been committed and that evidence of the offence would be found
    at the specified place:  see
R. v. Morelli
, 2010 SCC 8, at para. 40;
Garofoli
,
    at p. 1452;
Pires
, at para. 8;
R. v. Hosie
, [1996] O.J. No.
    2175, at para. 18 (C.A.); and
Reid
, at para. 73.

[26]

Challenges to the validity of a warrant are described as facial or
    sub-facial.  On a facial challenge, counsel argues that the ITO, on its face,
    does not provide a basis upon which the issuing justice, acting judicially,
    could issue the warrant.  A sub-facial validity challenge involves placing
    material before the reviewing judge that was not before the issuing justice. 
    On a sub-facial challenge, counsel argues that the material placed before the
    reviewing judge should result in the excision of parts of the ITO that are shown
    to be misleading or inaccurate.  The warrants validity must then be determined
    by reference to what remains in the ITO.  On a sub-facial challenge, counsel
    may also argue that the augmented record placed before the reviewing judge
    demonstrates that the affiant deliberately, or at least recklessly, misled the
    issuing judge, rendering the entire ITO unreliable as a basis upon which to
    issue a warrant:  see
Morelli
, at paras. 40-41;
R. v. Sadikov
,
    2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 37-38;
Crevier
, at para.
    74; and
R. v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 57.

[27]

The reviewing judge, when determining whether the warrant should have
    been granted, must consider the totality of the circumstances as set out in the
    ITO and as amplified by any additional material placed before him or her.  When,
    as in this case, the information to support the warrant comes almost entirely
    from a CI, the totality of the circumstances inquiry focuses on three
    questions.  Does the material before the reviewing judge demonstrate that the CIs
    information was compelling?  Does the material demonstrate that the CI was
    credible?  And does the material demonstrate that the CIs information was
    corroborated by a reliable independent source?  See
R. v. Debot
,
    [1989] 2 S.C.R. 1140, at p. 1168;
Hosie
, at para. 12; and
R. v. Rocha
,
    2012 ONCA 707, 112 O.R. (3d) 742, at paras. 16-18.

[28]

The first question addresses the quality of the CIs information.  For
    example, did he purport to have first-hand knowledge of events or was he
    reporting what he had been told by others?  The second question examines the
    CIs credibility.  For example, does he have a long record which includes
    crimes of dishonesty, or does he have a motive to falsely implicate the target
    of the search?  The third question looks to the existence and quality of
    information independent of the CI that offers some assurance that the CI
    provided accurate information.  The answers to each of the questions are
    considered as a whole in determining whether the warrant was properly issued in
    the totality of the circumstances. For example, particularly strong
    corroboration may overcome apparent weaknesses in the CIs credibility:  see
Crevier
,
    at paras. 107-108.

(ii)

The motion to cross-examine the affiant

[29]

In this case, counsel mounted a sub-facial validity challenge, relying
    on the affiants and Doomans preliminary inquiry testimony, the affiants
    notes of his conversation with Dooman, and an email Dooman sent the affiant on
    August 4, 2011 summarizing her knowledge of units 504 and 904 and unlawful
    activity in the building.  Counsel sought to cross-examine the affiant in aid
    of their sub-facial challenge.

[30]

The heavily redacted nature of the ITO left defence counsel with little
    to go on, either in respect of the cogency of the CIs information or the CIs
    credibility.  The defence did however have the information said by the affiant
    to corroborate the CI.  That information came from Dooman and was summarized in
    para. 12 of Appendix C to the ITO.  That paragraph was not redacted.

[31]

The affiant, in his testimony at the preliminary inquiry, had referred
    to Doomans information as providing the corroboration I needed.  Not
    surprisingly, the defences motion to cross-examine the affiant, and more
    generally its overall challenge to the telewarrants validity, focused largely on
    the corroboration Dooman allegedly provided.

[32]

In the ITO, the affiant swore that he spoke with Dooman about an hour
    before he applied for the telewarrant.  He summarized his conversation with
    Dooman as follows:

·

She
    had previously expressed concern to Toronto Police about drug dealing from unit
    904, the unit Silvera had lived in for the previous year.  There were many
    people in and out of unit 904 (Appendix C, paras. 12(a),(b) and (c)).

·

She
    had been advised by the superintendent of the condominium that Silvera had been
    seen accessing unit 504 with a key.  She did not know who rented unit 504 (Appendix
    C, paras. 12(d) and (e)).

[33]

The defence moved to cross-examine the affiant on para. 12(a) of the ITO,
    arguing that there were significant inconsistencies between what the affiant
    had attributed to Dooman in that paragraph and what other sources indicated Dooman
    had said.  Counsel argued that there was a direct contradiction between para.
    12 of the ITO and Doomans testimony at the preliminary inquiry. In her
    evidence, she denied speaking to the police about drug dealing in unit 904.

[34]

The defence also relied on the cross-examination of the affiant at the
    preliminary inquiry, which had produced testimony indicating there were reasons
    to question the reliability of the contents of para. 12 of the ITO.  Counsel submitted
    that even the affiant expressed uncertainty as to what Dooman said to him.  He
    referred to having three versions of the conversation by the time he
    testified at the preliminary inquiry.

[35]

The defence further argued that it should be permitted to cross-examine
    the affiant about Doomans statement that the superintendent had seen Silvera
    use a key to enter apartment 504 (paras. 12(d) and (e)).  The defence submitted
    that it should be entitled to know what details, if any, the affiant had
    sought, and Dooman had provided, about her conversation with the
    superintendent.  The defence maintained that depending on the inquiries made
    and the level of detail provided, the statement may have had very little
    corroborative value.

[36]

Lastly, the defence argued that the alleged statements from Dooman in
    para. 12 of the ITO were crucial to the warrants sustainability.  Without her
    information there was no corroboration.  In fact, argued the defence, without
    her information, the affiant did not believe he had reasonable grounds to
    obtain the telewarrant.  Absent that subjective belief, the telewarrant could
    not stand.

[37]

The trial judge refused to permit cross-examination of the affiant.  He
    correctly observed that the defence did not have a right to cross-examine the
    affiant but had to demonstrate that there was a reasonable likelihood that the
    proposed cross-examination would generate evidence discrediting the existence
    of one or more of the grounds for the issuance of the warrant:
Garofoli
,
    at p. 1465; and
R. v. Green
, 2015 ONCA 579, 337 O.A.C. 72, at para.
    34.

[38]

After referring to the controlling case law, the trial judge turned specifically
    to para. 12(a) of Appendix C to the ITO, and the conflict between Doomans
    evidence and the contents of para. 12(a).  In rejecting the motion to cross-examine
    on para. 12(a), the trial judge said:

The only possible basis, it seems to me, that could take on the
    sort of significance that is stated in
Garofoli
would be if I were to
    conclude that in fact Officer Correia was misrepresenting the information he
    was putting in the information to obtain and
had either created the
    confidential informant out of whole cloth or had fabricated the elements of
    what it was the confidential informant had told him.
In all of the
    circumstances of this case, I am not prepared, having seen the evidence I have
    seen, to conclude that that is the case.  [Emphasis added.]

[39]

The trial judge also refused to allow cross-examination of the affiant about
    any conversations he had with Dooman concerning her information that Silvera had
    a key to apartment 504 (paras. 12(d) and (e)).  The trial judge reasoned that because
    the affiant had identified Doomans information about the key as hearsay from
    the superintendent, there was no value in any cross-examination on that part of
    the affidavit.

(iii)

The trial judges errors

[40]

The trial judge misconstrued the purpose of the proposed
    cross-examination of the affiant on para. 12(a).  The cross-examination did not
    seek to demonstrate that the CI did not exist or that the CI had not given
    information to the affiant.  The cross-examination aimed to undermine the affiants
    assertion that Dooman had corroborated the CIs story.  The existence and quality
    of any corroboration of the CI was important to the warrants validity.

[41]

In para. 12(a), the affiant asserted that Dooman told him she had
    previously gone to the police with specific concerns about drug dealing at unit
    904.  The affiants contemporaneous notes of his conversation with Dooman on
    August 4, 2011 do not support this assertion.  In the notes, he indicates that
    Dooman talked to the police about a problem tenant she thought was dealing
    drugs.  The notes also refer to many people coming in and out of unit 904. 
    The notes do not indicate that Dooman connected unit 904 with drug
    trafficking.

[42]

Doomans August 4, 2011 email to the affiant (which was not available to
    the affiant when he prepared the ITO) also makes no reference to Dooman
    speaking to the police about drug trafficking in unit 904.  In the email,
    Dooman refers to Silvera as being involved in some illegal activity and as
    associating with unsavoury looking people.  Although Dooman refers to drugs
    being trafficked in the condominium building, she does not connect drug dealing
    to Silvera.

[43]

Doomans preliminary inquiry testimony is in direct conflict with para.
    12(a).  She testified that she spoke to the police about unit 904 in May or
    June of 2011.  Defence was not permitted to inquire as to the reason for
    speaking to the police.  Dooman further testified, however, that she had never
    previously expressed any concern to the Toronto Police about drug dealing
    specifically out of unit 904.  Her only issue with Silvera involved his parking
    in the wrong spot.

[44]

The uncertainty over what Dooman said to the affiant about drug dealing
    and apartment 904 is best captured by the affiants own testimony at the
    preliminary inquiry.  When being pressed in cross-examination about what Dooman
    had said, the affiant replied:

Well to be honest I have three different versions of what she
    said.  Bear with me because its the email  my notes and the ITO that I was
    drafting.

[45]

The various versions of what Dooman said to the affiant provided ample
    grounds justifying cross-examination of the affiant on his conversation with
    Dooman as it related to drug trafficking by Silvera in unit 904 (paras. 12(a),
    (b) and (c)).  The material raised the real possibility that general comments
    made by Dooman about Silveras connection to illegal activities and unsavoury
    people had somehow morphed into an assertion by her of a specific prior
    complaint to the police about drug dealing in the unit where Silvera lived.  The
    potential difference in the probative value of the general comments compared to
    the very specific allegation in para. 12(a) of the ITO could be significant in
    determining whether the ITO revealed reasonable and probable grounds for a
    search of unit 904.

[46]

The trial judge also erred in foreclosing cross-examination on the
    affiants conversation with Dooman about Silveras connection to apartment 504
    (paras. 12(d) and (e)).  While it is true that the affiant clearly identified
    the hearsay nature of Doomans information about Silveras use of a key to
    enter unit 504, there were potentially several questions that could have been
    put to the affiant that would have had significant impact on the probative
    value of that hearsay evidence.  Not all hearsay is created equal.

[47]

For example, the affiant might have been asked on cross-examination
    whether he questioned Dooman about when she spoke to the superintendent and
    whether she received any details from him.  If Dooman spoke to the
    superintendent months earlier and if the superintendent referred to a single
    event, those details would significantly undermine the corroborative value of
    the superintendents comments.  Furthermore, if the affiant indicated that he
    had not questioned Dooman about her conversation with the superintendent, the
    affiants failure to follow up on the statement would potentially diminish the
    probative value that could reasonably be attached to Doomans statement about
    the information she had received from the superintendent.

[48]

At the end of his reasons for refusing cross-examination, the trial
    judge said:

As for the informers status and reliability, I am of the view
    that the confidential informants reliability is made out in the ITO.  I
    appreciate it is difficult for the defence, who have not seen everything that I
    have seen, to accept my say-so on that regard and to the extent that the
    concern was raised with respect to Ms. Dooman, I view it as, again, something
    that would not go to the preconditions for the search warrant.  So, I will not
    permit that cross-examination either.

[49]

The trial judge erred in taking into account his own assessment of the
    confidential informants reliability based on his reading of the unredacted ITO
    to refuse the application to cross-examine the affiant.  The ultimate
    reliability of the information in the ITO is not in issue on a motion to
    cross-examine the affiant.  The trial judge is only concerned with whether
    there is a reasonable likelihood that the proposed cross-examination would
    assist in determining whether the grounds existed for the issuance of the
    warrant.  The defence is not required to show that the cross-examination will succeed
    in demonstrating that unreliability:
Green
, at paras. 34-36; and
Garofoli
,
    at pp. 1463-1465.

[50]

Crown counsel, in arguing that the trial judge properly exercised his
    discretion to refuse cross-examination, submits that the trial judge could (but
    not necessarily did) take into account the fact that the affiant had been
    cross-examined at the preliminary inquiry.  Crown counsel reasons that the
    trial judge was entitled to consider whether any further cross-examination was
    necessary to permit full answer and defence.

[51]

Crown counsel refers to
R. v. Oliynyk
, 2008 BCCA 132, 232
    C.C.C. (3d) 411, at paras. 16-18.  He reads
Oliynyk
as holding that
    when the affiant has been cross-examined at the preliminary inquiry, further
    cross-examination at trial would be permitted only if the defence could demonstrate
    that the further cross-examination will elicit additional information from the
    affiant relevant to the validity of the warrant.

[52]

I think
Oliynyk
could be read as the Crown reads it.  However,
    with respect, I cannot agree with that approach.  The affiants
    cross-examination at the preliminary inquiry was part of the s. 8 application
    record at trial.  To the extent that the affiants preliminary inquiry
    testimony, combined with the other material before the trial judge, revealed a
    basis upon which cross-examination of the affiant should be permitted, the
    affiants preliminary inquiry testimony supported the defence motion to
    cross-examine the affiant.

[53]

I know of no basis upon which the defence can be obligated to accept
    cross-examination at the preliminary inquiry as a substitute for
    cross-examination at trial.  It is one thing to encourage counsel to agree to
    use preliminary inquiry transcripts to expedite trial proceedings, and quite
    another for a trial judge to foreclose cross-examination based on his or her
    assessment of whether cross-examination at trial will add anything to the
    cross-examination conducted at the preliminary inquiry.

[54]

When the defence shows a reasonable likelihood that cross-examination of
    the affiant on the s. 8 application at trial will generate evidence tending to
    discredit the existence of one or more of the grounds for the issuance of the
    warrant, the defence is entitled to conduct that cross-examination as part of
    the s. 8 application at trial regardless of whether that cross-examination will
    add to the cross-examination conducted at the preliminary inquiry.

[55]

The decision to allow or refuse cross-examination of the affiant
    involves the exercise of discretion by the trial judge.  Absent an error in
    principle, a material misapprehension of the evidence or an unreasonable
    determination, this court will defer to the trial judge:
Garofoli
, at
    p. 1465.  The errors set out above constitute errors in principle justifying
    appellate intervention.  The appellants were entitled to cross-examine the
    affiant on his conversations with Dooman.  That cross-examination would of
    course be subject to the overriding need to protect the identity of the
    confidential informant.

[56]

I am satisfied that the failure to permit cross-examination requires a
    new trial. There is a realistic possibility that had cross-examination been
    permitted, the reviewing judge may have determined that para. 12 should be
    excised from the affidavit, or that at least it should be given very little
    weight.  Had the trial judge taken that approach, the validity of the warrant
    would be an open question.

B.

the other grounds of appeal

[57]

It is unnecessary to address the submissions relating to the adequacy of
    the judicial summary and the trial judges ultimate assessment of the adequacy
    of the grounds relied on for the issuance of the telewarrant.  Both issues, as
    well as any others that may arise on the s. 8 application, will be for the
    judge at the new trial to decide based on the record placed before that judge. 
    Unlike this trial judge, the judge at the new trial will have the advantage of
    the recent jurisprudence from this court setting out in some detail the
    procedures to be followed on a Step Six motion: see
Reid
, at paras.
    84-96; and
Crevier
, at paras. 82-90, 104-112.

[58]

I also see no reason to consider the submission that the trial judges
    reasons for upholding the warrant were so inadequate as to constitute an error
    in law.  Nothing said on that ground would assist at the new trial.  The other
    two grounds of appeal do however warrant some comment.

(i)

The night time
    execution of the telewarrant

[59]

The telewarrant was executed at about 10:50 p.m. on August 4, 2011.  Counsel
    for Shivrattan submits that the
Criminal Code
requires that if a
    warrant is to be executed at night (after 9:00 p.m., see
Criminal Code
,
    s. 2), the night time execution must be justified under the terms of s. 488 of
    the
Criminal Code
.  He argues that this ITO provides no such
    justification.

[60]

Crown counsel submits that the telewarrant was issued under the
    authority of s. 11 of the
Controlled Drugs and Substances Act
, S.C.
    1996, c. 19 (CDSA) and not under the
Criminal Code
.  Crown counsel
    points out that s. 11(1) of the CDSA provides that warrants may be
    executed at any time.  Counsel also notes that s. 488 of the
Criminal
    Code
is not made applicable to warrants and telewarrants issued under s.
    11 of the CDSA.  The Crowns submission finds considerable support in the case
    law:
R. v. Saunders
, 2003 NLCA 63, 181 C.C.C. (3d) 268, at paras. 27,
    31-32, affirmed on other grounds, 2004 SCC 70, [2004] 3 S.C.R. 505;
R. v.
    Dueck
, 2005 BCCA 448, 200 C.C.C. (3d) 378, at paras. 17-21; and
R. v.
    Newell
, [2007] O.J. No. 2348, at para. 47 (Ont. S.C.).

[61]

I would follow those authorities.  Unlike warrants issued under the
Criminal
    Code
, there is no statutory presumption that warrants issued under s. 11
    of the CDSA are to be executed before 9:00 p.m. unless night time execution is
    justified under s. 488 of the
Criminal Code
.  That does not mean that
    the time at which a warrant is executed may not factor into the reasonableness
    of the manner in which the warrant is executed.  It means only that when
    considering the reasonableness of the manner in which a warrant issued under s.
    11 of the CDSA was executed, the
Criminal Code
distinction between
    warrants executed before and after 9:00 p.m. has no application.

[62]

There is nothing in this record to suggest that the execution of the
    warrant at 10:47 p.m., as opposed to sometime earlier, had any additional
    adverse effect on the privacy or security interests of the appellants.  In
    fact, I do not understand defence counsel at trial to have challenged the
    reasonableness of the manner in which the warrant was executed.

(ii)

The

motion

to

appoint

amicus

to assist the trial judge at step six

[63]

At trial, during his submissions on the adequacy of the judicial summary
    prepared by the trial judge, counsel for Shivrattan submitted that the trial
    judge should appoint
amicus
to assist the trial judge in deciding how
    the ITO should be redacted and in the preparation of the judicial summaries of
    the redacted portions.  Counsels submissions were very brief and came at the
    end of his arguments about the adequacy of the judicial summary.  Counsel
    provided no specifics as to the role of
amicus
or the procedure to be
    followed to protect the CIs identity.

[64]

The trial judge summarily dismissed the request, indicating that it came
    too late in the s. 8 proceeding.  He also held that he was confident that any
    informed person reviewing the unredacted ITO would make the same redactions as
    he had to protect the CIs identity.

[65]

The Step Six procedure is designed to balance the need to protect the
    identity of the confidential informant and the accuseds right to make full
    answer and defence at trial.  It falls to the trial judge to tailor a procedure
    which best achieves that balance in each individual case.
R. v. Basi
,
    2009 SCC 52, [2009] 3 S.C.R. 389, at para. 57, establishes that in
    particularly difficult cases the trial judges discretion extends to the
    appointment of
amicus
to assist in the consideration of issues
    relevant to confidential informants.

[66]

The appointment of
amicus
on a Step Six procedure is the
    exception rather than the rule.
[1]
It is incumbent on the defence to demonstrate why the specific circumstances of
    the case require the appointment of
amicus
.  It is equally the
    responsibility of the defence to set out a proposed procedure which will allow
amicus
to perform the role anticipated by the defence while protecting the
    confidentiality of the CIs identity.  It is not enough to rely on the bromide
    that two heads are always better than one and that the appointment of
amicus
will inevitably enhance at least the appearance of the fairness of the Step
    Six procedure.  To accept those arguments is to make the appointment a routine
    part of the procedure.

[67]

Because of the nature of the confidential informant privilege and the
    very real risk associated with the breach of that privilege, there are many
    sensitive issues that would have to be resolved before the trial judge could
    appoint
amicus
on a Step Six procedure.  I offer one example.

[68]

Experience teaches that the disclosure of apparently innocuous facts,
    particularly to an accused, can reveal a CIs identity.  When editing the
    unredacted ITO and preparing a summary of those edits, the trial judge has the
    benefit of submissions from Crown counsel who, in turn, has the benefit of
    information supplied by the investigating police.  The trial judge quite
    properly relies heavily on the Crown to identify facts which could
    inadvertently identify the CI.

[69]

If
amicus
were to be appointed, would
amicus
be
    allowed to consult with the defence after reading the unredacted ITO and
    listening to the Crowns comments about proposed redactions?  If so, what steps
    could be taken to ensure that
amicus
did not inadvertently disclose,
    through some apparently innocuous comment, a fact that would reveal the
    identity of the CI to the defence?
Amicus
would, of course, not have
    the benefit of the presence of Crown counsel during his discussions with the
    defence.  This risk may not arise in some situations and there may be ways to
    avoid the risk while maintaining the value of
amicus
in other
    situations.  I raise the problem only as an example of the kind of issue which
    must be considered and resolved before
amicus
can be appointed.

[70]

Counsels very brief submissions offered no basis upon which the case
    could be characterized as one of those particularly difficult cases meriting
    the appointment of
amicus
.  Nor did counsel provide a plan for how
    they would minimize the risk of inadvertent disclosure should
amicus
be appointed.  The motion was properly dismissed.


IV



CONCLUSION

[71]

I would allow the appeals, quash the convictions and order a new trial
    on all counts on which the appellants were convicted.  I would also lift the
    conditional stays entered by the trial judge on the authority of
R. v.
    Kienapple
, [1975] 1 S.C.R. 729, and order new trials on those counts as
    well.  The acquittals entered by the trial judge stand.

Released: JAN 17 2017 DD

Doherty J.A.

I agree C.W. Hourigan J.A.

I agree L.B. Roberts J.A.





[1]
The court was referred to two trial decisions from this province in which
    motions were brought to appoint
amicus
on a Step Six procedure.  The trial judge refused to appoint
amicus
in both cases: see
R. v. Marakha
(September 17 2014),
    Toronto, 13-30000622-0000 (Ont. Sup. Ct.), at paras. 49-54; and
R. v. Thompson
, 2014 ONSC 250, [2014]
    O.J. No. 138, at paras. 55-60.  The court was not referred to any case in which
amicus
was appointed by the trial
    judge on the Step Six procedure.


