



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lowe, 2018 ONCA 110

DATE: 20180206

DOCKET: C58720 and C58721

Rouleau, Pepall and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ishmael Lowe and Elijah Lowe

Appellants

Paul J.I. Alexander, for the appellants

David Quayat, for the respondent

Heard: November 16, 2017

On appeal from the conviction entered on November 29,
    2013 by Justice Alison Harvison Young of the Superior Court of Justice, sitting
    without a jury, with reasons reported at 2014 ONSC 396, 118 W.C.B. (2d) 363.

Rouleau J.A.:

A.

OVERVIEW

[1]

The appellants were both convicted of possession of a controlled
    substance for the purpose of trafficking and possession of proceeds of crime
    over $5000. Elijah was also convicted of possession of proceeds of crime under
    $5000.

[2]

The central issue at trial was the validity of the search warrant
    authorizing the search of Elijahs residence where drugs and money were found. The
    warrant had been obtained using information from a confidential informant (CI).
    As a result, the information to obtain (ITO) had been edited by redacting
    information that might have revealed the informants identity. The redacted ITO
    was insufficient to support the issuance of the warrant. The Supreme Court of
    Canada explained in
R. v. Garofoli
,
    [1990] 2 S.C.R. 1421, at p. 1461,
what can be done in these
    circumstances. The Crown can apply to have the trial judge consider so much of
    the excised material as is necessary to support the authorization. To assist,
    the accused is to be given a judicial summary of the redacted material. This is
    the step six procedure outlined in
Garofoli
. Using the step six
    procedure in this case, the trial judge upheld the validity of the warrant and
    determined that the search was lawful.

[3]

On appeal, it is argued that the trial judge erred in both allowing the
    Crown to use the
Garofoli
step six procedure and in the manner she
    applied it. It is also argued that the CIs tip should not have been relied on
    as it did not satisfy the criteria for assessing reliability outlined in
R.
    v. Debot
,
[1989] 2 S.C.R.
    1140. The appellants also contend that the execution of the warrant at night
    was unreasonable.

[4]

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

B.

FACTS

[5]

Based partly on information from a confidential informant regarding a
    firearm, the police tried to obtain a warrant for the search of Elijah Lowes
    residence at 10 Turntable Crescent, unit 1. After the initial warrant
    application was denied, a new warrant application was submitted which contained
    additional information regarding possession of a handgun by Elijah, his
    vehicle, and the CIs reliability. The warrant was granted.

[6]

On April 15, 2010 at 9:46 p.m., police executed the warrant. Emergency Task
    Force officers entered Elijahs home after using a distractionary device and
    breaching the door. The appellants were present at the scene. Police found approximately
    300 grams of cocaine and $46,000 in cash, but no gun. Before trial, the
    appellants sought to exclude the evidence under ss. 8 and 24(2) of the
Charter
.

C.

Decision below

[7]

The appellants were given a heavily redacted version of the ITO. After
    conceding that the redacted ITO could not support the issuance of the warrant,
    the Crown sought and obtained consideration of the unredacted ITO by the trial
    judge pursuant to step six of the
Garofoli
procedure.

[8]

The unredacted ITO related considerable information obtained from a CI
    that pointed to Elijah being in possession of a firearm. It also contained
    observations made by the affiant, DC Armstrong, and another police officer.
    They observed Elijah keying his entry to 10 Turntable Crescent, unit 1. The ITO
    also contained information drawn from two community information reports (CIR).

[9]

Prior to testifying, the affiant advised the Crown that the summary of
    one of the two CIRs contained a significant error. The summary in the redacted ITO
    erroneously reported that Elijah had previously provided 10 Turntable Crescent,
    unit 1 as his address. In fact, it was Elijahs brother, Ishmael who had given
    the 10 Turntable Crescent, unit 1 address as his own. The CIR was produced to
    the defence and the error was put to the affiant in cross-examination. The
    affiant confirmed the error and had no explanation as to why or how it had been
    made. Given this error, the trial judge excised the portion of the ITO
    containing this reference.

[10]

The
    appellants also cross-examined the affiant on contradictory information
    contained in the redacted ITO regarding the colour of Elijahs vehicle. In
    portions of the redacted ITO, the affiant had stated that the CI and a police
    officer had reported observing Elijahs vehicle and indicated that it was blue.
    In other portions of the redacted ITO, however, the affiant reports that
    Elijahs car had been observed and was grey. Other than the difference in
    colour, the car was consistently reported as being a 4-door Honda Civic with
    licence plate ATBS 297. The trial judge noted the differences in reports as to
    the colour of Elijahs car but concluded that the issue of the car colo[u]r in
    this case was a red herring as there was no doubt about what car was referenced
    due to the other descriptors and identifying details such as the licence plate
    number.

[11]

Another
    issue at trial was the content of the second CIR. The portion of the ITO in
    which that CIR had been summarized was heavily redacted. A judicial summary of
    that portion had been provided and stated as follows:

The redacted information discloses more background details
    regarding the location/circumstances of the observations of the firearm which
    bear on Lowes
modus operandi

and
    of details given by the source which were subsequently corroborated in the
    course of the investigation.

[12]

At
    the end of the hearing on the s. 8 challenge, the trial judge invited the Crown
    to tender the second CIR. Because it contained information that might reveal
    the identity of the CI, it was tendered under seal and not disclosed to the
    defence. Following the production of the CIR itself, the trial judge determined
    that the judicial summary should be amended. After exchanges with the Crown,
    the following sentence was added to the judicial summary:

Part of this corroboration consisted of a C.I.R., where an
    independent police investigation corroborated information which the affiant had
    received from the CI.

[13]

The
    trial judge ultimately concluded that the warrant should be upheld and she
    dismissed the appellants
Charter
application.

[14]

The
    parties then tendered an agreed statement of facts and the appellants were
    found guilty.

D.

ISSUES

[15]

The
    appellants raise four issues:

1.

Did the trial judge err by allowing the Crowns step six application and
    relying on redacted portions of the ITO that the appellants were not able to
    challenge in argument or by evidence;

2.

Did the trial judge err by inviting the Crown to produce new undisclosed
    evidence during the
Garofoli
hearing;

3.

Did the CIs tip meet the
Debot
criteria and was it sufficient
    to justify the issuance of the warrant; and

4.

Was the night search unreasonable?

E.

ANALYSIS

[16]

In
    cases such as the present where it is conceded by the Crown that an authorization
    cannot be supported by the ITO as edited, the Crown may ask the judge to apply
    for step six of the
Garofoli
procedure. This final step in the
Garofoli
procedure allows the trial judge to consider so much of the unredacted
    version of the affidavit as necessary to support the authorization. The Supreme
    Court explained that the trial judge may only consider the redacted information
    if satisfied that the accused is sufficiently aware of the nature of the
    excised material to challenge it in argument or by evidence:
Garofoli
,
    at p. 1461.

[17]

The
    judicial summary plays an important role in providing sufficient information to
    the accused about the nature of the redacted information. However, its function
    is not to reveal all the details as to what was redacted, but to communicate only
    the nature of what has been redacted.

[18]

As
    this court noted in
R. v. Crevier
,
    2015 ONCA 619, 330 C.C.C. (3d) 305,
at para. 72, the trial judge
    must ensure that the accuseds awareness gained through the judicial summary
    and other available information is:

sufficient to allow the accused to mount a challenge of the
    redacted details both in argument
and by evidence
. In other words,
    the accused must, through the judicial summary, cross-examination of the
    affiant, or the leading of evidence, be in a position to mount both a facial
    and sub-facial attack on the warrant, including a challenge to those parts of
    the ITO that are redacted, but relied on by the trial judge. [Emphasis in
    original.]

[19]

In
Crevier
,

at para. 83, this court explained that: 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
. In assessing
    whether sufficient detail is provided by the summary, the trial judge should
    examine whether it contains information that could be relevant and does not
    risk revealing the identity of the informer:
Crevier
, at
    para. 84. Examples of this are the sources information, the sources
    relationship with the accused, whether the source previously provided information
    to the police, etc.

[20]

In
    the present case, the appellants mounted a sub-facial challenge to the ITO. As
    explained in
R. v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 50,
    a sub-facial challenge is where the accused goes behind the ITO to attack the
    reliability of its content. As part of that challenge, the appellants
    cross-examined the ITO affiant. They sought to demonstrate that the information
    supporting the issuance of the warrant received from the CI was neither
    compelling nor corroborated, and that he/she was not credible.

[21]

On
    appeal from a reviewing judges decision, the court must be mindful of the test
    that a reviewing judge applies when considering the record for the
    authorization of the search warrant and mindful of the deference owed to the
    reviewing judges decision. The reviewing judges role is to assess whether
    there was at least some or sufficient evidence, as may be amplified on review,
    that might reasonably be believed and on the basis of which the authorization
    of the search warrant could have issued:
Araujo
, at para. 51
; R.
    v. Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 38 and
R. v.
    Lising
, [2005] 3 S.C.R. 343, at para. 8. The reviewing judges decision is
    entitled to deference and, absent an error of law, misapprehension of evidence,
    or a failure to consider relevant evidence, an appellate court should not
    interfere:
Sadikov
, at para. 89.

[22]

I
    turn now to the four grounds of appeal raised by the appellants.

(1)

Did the trial judge err in allowing the Crown to use the step six procedure?

[23]

The
    ITO in this case was heavily redacted. The trial judge provided the appellants
    with a judicial summary of the redacted information. The summary tracked the
    redactions from the ITO but, in four instances, stated that no summary of what
    had been redacted could be provided to the appellants.

[24]

The
    appellants argue that, after acknowledging that certain portions of the
    redacted ITO could not be adequately summarized and disclosed, the trial judge
    nonetheless relied on these portions in confirming the validity of the warrant.

[25]

This,
    they submit, clearly contravened the direction in
Crevier
, at para. 87,

that

when assessing the validity
    of the warrant, the trial judge should disregard those redacted portions the
    nature of which could not be summarized and provided to the accused.

[26]

In
    support of this submission, the appellants point to paras. 44 and 45 of the
    trial judges reasons where she agreed with and cited
R. v. Browne
,
    2013 ONSC 5874, 294 C.R.R. (2d) 57, at para. 37: [t]he reviewing court should
    not set aside the search warrant unless the applicant establishes
on the
    whole of the material presented
that there was no basis upon which it
    could have been issued (emphasis added). This, the appellants maintain,
    demonstrates that the trial judge relied on all of the unredacted ITO in
    reaching her decision to confirm the warrant, including the parts that were not
    summarized.

[27]

I
    would reject this ground of appeal for two reasons. First, the trial judge was
    satisfied that the content or nature of the four passages where she stated that
    nothing more can be released were adequately disclosed by other parts of the
    judicial summary to allow for a sub-facial challenge. In fact, at para. 45 of
    her reasons, she explained that:

The unredacted text surrounding the redacted paragraphs of the
    ITO about which the judicial summary states nothing more can be released does
    and can appropriately be relied upon to provide the defence with sufficient
    information as to the nature of the redacted information. As I have stated
    above, I am satisfied that the redacted ITO as well as the judicial summary
    (and the evidence from the agreed statement of fact and cross examination of DC
    Armstrong) did make the defence sufficiently aware of the nature of the
    redacted information.

As this passage shows, the trial judge did not say
    that the information could not and had not been summarized, despite the
    appellants contention to the contrary.

[28]

Second, the trial judges comment has to be read in the pre-
Crevier
context. Had the trial judge been assisted by the
Crevier
decision
, she likely would have used
    slightly different language in these four instances.
Crevier
instructs
    that a trial judge should provide a summary that, where possible, tracks the
    redactions in the ITO. The judicial summary should inform the accused not only
    of what was redacted but also where in the ITO the redacted information is
    contained. As well, the judicial summary should say if the nature of a
    redaction in a specific paragraph of the ITO cannot be summarized:
Crevier
,
    at para. 85. This was the context for the quotation from
Crevier
relied
    on by the appellants to the effect that redacted portions, the nature of which
    could not be summarized, should be disregarded. The trial judge did not say
    that the nature of what was redacted in those four instances could not be
    summarized, but rather that nothing more can be released.
Nor did the trial judge state that she would rely on
    the redacted parts even if they could not be summarized.

[29]

This court
having reviewed the unredacted
    ITO, it is apparent that there was no prejudice to the appellants ability to
    challenge the redacted information in those four instances in argument or by
    evidence. In two of the instances, the information consisted largely of information
    already summarized in other parts of the judicial summary. In the third
    instance, the redacted text relates to information received by the CI. The
    affiant inquired into that information, but it proved to be of no assistance. Had
    the trial judge had the benefit of
Crevier
,

she may well have
    summarized it in this way even though this would have added nothing useful. In
    any event, this portion of the unredacted ITO would have been essentially
    disregarded or ignored by the issuing justice and by the trial judge.

[30]

With
    respect to the fourth instance of redacted text where the trial judge indicates
    that nothing more could be released, specific information from the CI is
    reported. That information cannot be disclosed without running the risk of
    disclosing the CIs identity. A generic description might have been formulated,
    although it would have added little to the generic descriptions provided in
    other parts of the judicial summary. The addition of generic information in
    lieu of saying nothing more can be released would not, however, have assisted
    the appellants in their sub-facial challenge. They were not prejudiced by the
    trial judges failure to do so.

[31]

As
    for the appellants submission that the trial judges comment in her reasons that
    the right to full answer and defence was attenuated at the pre-trial stage constituted
    an error, this comment must be viewed in its context. The trial judge
    referenced Code J.s similar statement in
R. v. Learning
,

2010
    ONSC 3816, 258 C.C.C. (3d) 68,
a pre-
Crevier
decision.
As explained in
Crevier
,
    at para. 102, the cases using the attenuated phrase did not use it in the
    sense of lessening the right but rather as an acknowledgment that the right is
    of necessity adapted taking into account that it is an admissibility hearing
    and because of the need to maintain [the informer] privilege. I view the trial
    judges reference to the right to make full answer and defence being somewhat attenuated
    in the same sense.

(2)

Did the trial judge err by inviting the Crown to produce a CIR that was
    not disclosed to the accused?

[32]

The
    ITO contained the summary of a CIR. The information it contained corroborated
    critical information provided by the CI. This CIR was viewed by the trial judge
    as being important to her corroboration analysis.

[33]

The
    appellants maintain that the trial judge was not content to rely on the summary
    of the information from the CIR reproduced in the ITO. As a result, she
    requested that the CIR itself be produced by the Crown and provided to her.
    Because it contained information that could serve to reveal the CIs identity,
    it could not be provided to the accused.

[34]

The
    appellants argue that this was an unprecedented expansion of the use of secret
    evidence in a criminal court. It was, in their view, both inappropriate for the
    judge to embark on an evidence-gathering process and to have done so in
    circumstances where that evidence is not disclosed to the accused.

[35]

The
    appellants also maintain that, even if new secret evidence could be introduced,
    the judicial summary of that evidence was inadequate. The accused had no idea
    as to the nature of the information in the CIR, its source, whether it was
    dated, gathered unconstitutionally, or if the affiant had taken any steps to
    confirm its accuracy.

[36]

I
    would dismiss this ground of appeal. Admittedly, the circumstances in which the
    CIR was produced were quite unusual. The affiant had made reference to two CIRs
    in the ITO. He had realized prior to testifying that the summary he had
    included in the ITO for one of the CIRs contained a significant mistake. He
    advised the Crown of the mistake. As noted by the trial judge, the CIR was
    provided to the appellants and they cross-examined the affiant quite
    effectively on the error as well as on other issues.

[37]

The
    trial judge took the unusual step of asking that the second CIR itself be
    provided to her. Contrary to the appellants submission, I do not see this as
    the trial judge taking steps to supplement the record. Rather, it was to ensure
    that information contained in the ITO, the nature of which had been disclosed
    in the judicial summary, was an accurate summary of the CIR. It does not
    constitute amplification in the usual sense, as no new information of
    significance was obtained by the trial judge having access to the CIR itself.

[38]

In
    any event, even if it were considered as amplification evidence, in the unusual
    circumstances of this case I do not consider that the trial judge acted
    improperly in ensuring that the information found in the ITO was an accurate
    summary of the CIR. Amplification evidence may be used to correct good faith
    errors of the police in preparing the ITO, as long as it was available at the
    time of the warrant application:
R. v. Morelli
, 2010 SCC 8, [2010] 1
    S.C.R. 253, at paras. 41-43. In this case, the CIR was available to police
    when it applied for the warrant.

[39]

The
    trial judge considered it appropriate to have the Crown produce the second CIR
    itself. This was due in part to the fact that the affiant had made an error in
    summarizing the first CIR and because much of the detail from this second CIR was
    redacted. Further, the second CIR could not be disclosed to the appellants so
    that they could confirm the accuracy of the summary. Had it been unable to
    support the information contained in the ITO, the reference to the CIR would
    have been excised. As it did support the information contained in the ITO, the
    trial judge was satisfied that the summary could be relied on. The additional
    relevant information drawn from her review of the CIR was added to the judicial
    summary.

[40]

I
    turn now to the appellants concerns regarding the nature of the information in
    the CIR, their inability to cross-examine the affiant on it, its source,
    whether it was dated, gathered unconstitutionally, or if the affiant took any
    steps to confirm the accuracy of the CIR.

[41]

In
    my view, the trial judge was careful to provide a useful judicial summary of
    the information drawn from the CIR that had been redacted from the ITO. She
    supplemented it after the CIR was provided to her. The amended judicial summary
    disclosed that the impugned CIR was obtained in an independent police
    investigation. The affiant testified that he played no role in that
    investigation nor did he follow up with the officers who did. The appellants
    were therefore able to argue that the affiant took inadequate steps to confirm
    the information contained in the CIR, but there would have been little, if any,
    ability to cross-examine the affiant on the contents of the impugned CIR. As
    for the other concerns, a review of the unredacted information clearly
    demonstrates that it was obtained in a constitutional manner during the
    relevant time period.

[42]

The
    appellants also argue that, had the CIR not been provided, the trial judge
    would have been left with a doubt as to the accuracy of the summary contained
    in the unredacted ITO. The appellants then explain that because this
    information was critical to the corroboration element of
Debot
and but
    for its inappropriate production, the trial judge would have found the
    corroboration element to be weak and would have struck the search warrant.

[43]

I
    disagree. It is apparent to me that the trial judge, conscious that an error
    occurred with respect to the one CIR, felt it was prudent and in the accuseds
    interest to verify the accuracy of the summary of the second CIR referenced in
    the ITO. But for its confidential nature, the CIR may well have been provided
    to the accused who could have verified the accuracy of the summary themselves.

[44]

The
    trial judges request that the CIR be produced does not signal disbelief in the
    affiant or in the summary. In fact, the trial judge specifically found that the
    affiant was a credible witness, had not failed in his duty to make full and
    frank disclosure, and had provided reliable information. Given that prior to
    testifying, the affiant had himself identified the error in the first CIR,
    there was no reason to reject his sworn testimony regarding the second CIR even
    in the absence of the supporting document.

[45]

In
    all of the circumstances, I do not consider it to have been improper for the
    judge to have sought production of the CIR and, in any event, the appellants
    were not prejudiced by its production.

(3)

Did the CIs tip meet the
Debot
criteria?

(a)

Did the redactions make it impossible to mount a proper challenge?

[46]

The
    appellants first argument with respect to the
Debot
criteria is that
    the ITO relied heavily on the CIs tip and that the redactions made it
    virtually impossible to mount a proper challenge to it. In
Crevier
, at
    para. 70, this court explained that to give effect to the right to make full
    answer and defence, the accused must be able to mount an effective challenge
    to the ITO and, in particular, challenge in argument or by evidence whether the
Debot
criteria of compellability, credibility and corroboration have
    been met.

[47]

In
    the present case, the focus of the appellants sub-facial challenge of the ITO
    was on whether, in the totality of the circumstances, the CIs tip upon which
    the ITO affiant relied was compelling, credible and corroborated:
Debot
, at p.1168
.

[48]

At
    the outset, it is important to recall, as this court noted in
Crevier
,
    at para. 65, that the ultimate issue in a sub-facial challenge is

not the truth of a confidential informers tips . The fact
    that an informer provided inaccurate or false information to police will be
    relevant only to the extent the ITO affiant knew or should have known it was
    false, because then one of the preconditions for issuing the warrant would not
    have been met: reasonable belief in the existence of the necessary statutory
    grounds.

[49]

In
    my view, the nature of the information redacted is sufficiently clear in the
    judicial summary so as to allow the appellants to pursue their challenge. It,
    together with the redacted ITO, revealed:

a.

That the
    information was based on the informants own observations;

b.

The currency of
    the information (i.e., 2010);

c.

That the
    informant had previously provided information to the Toronto Police Service (in
    cross-examination it was revealed that the informant had provided information
    twice before);

d.

That the
    informant had a criminal record;

e.

That the
    informant had identified a photograph of Elijah Lowe shown by the informants
    handler; and

f.

The degree
    of detail of the information provided by the informant (i.e., particulars
    regarding the locations/circumstances of the observation of a firearm as well
    as description of the nature of the firearm). The summary ultimately
    characterized the information as providing great detail.

[50]

The
    judicial summary also helpfully points out not only what was contained in the
    redacted information, but also what was absent. For example, it advises that the
    unredacted ITO did not disclose whether the criminal record included crimes of
    dishonesty, nor whether other tips received by the CI had proved useful. In
    cross-examination, the affiant also revealed that he did not make any inquiries
    of the officer who prepared one of the CIRs that served to corroborate the
    informants tip.

(b)

Did the CIs tip satisfy the
Debot
factors?

[51]

Alternatively,
    the appellants argue that the CIs tip did not meet the three
Debot
factors. As a result, the trial judge erred in concluding that the issuance of
    the search warrant was supported by the unredacted ITO.

[52]

As
    I will explain, I agree with the trial judges findings that the information
    was highly compelling and corroborated, and that this overcame the weakness in
    the CIs credibility. Her conclusion that in the totality of the circumstances
    the warrant could have issued is well supported:
Canada (Commissioner of
    Competition) v. Falconbridge Ltd.
(2003), 173 C.C.C. (3d) 466 (Ont. C.A.),
    at para. 35;
R. v. Reid
, 2017 ONCA 430, 139 W.C.B. (2d) 115, at para.
    28 and
Debot
, at p. 1168.

(i)

Was the tip compelling?

[53]

It
    was not seriously contested that the tip provided by the CI was compelling. As
    explained by the trial judge:

The CI provided specific information that set out first-hand
    knowledge indicating that he/she had recently observed a firearm. The firearm
    was described with precision. The CI provided a very detailed account regarding
    the date(s), circumstances, location(s) and timing of the observation(s). The
    CI also provided various background particulars about the applicant, including
    his description, and information about the vehicle he drove (a blue four-door
    Honda Civic). The CI also identified or recognized Elijah Lowe from a RICI
    photo that he was shown as the person about whom he/she was providing
    information and stated that he supplied cocaine to bars near Dupont Street and
    Lansdowne Avenue in Toronto.

(ii)

Is the informant credible?

[54]

The
    judicial summary explained that the informant had a criminal record. The summary
    did not, however, disclose whether the criminal record included crimes of
    dishonesty. The summary also revealed that the confidential informant provided
    the information in hopes of receiving some consideration.

[55]

The
    record was amplified to include information that the CI had been used twice in
    the past. The amplification did not, however, give any indication as to how the
    reliability of these additional tips had been assessed.

[56]

Given
    the limited information regarding the CI, the trial judge acknowledged that
    this element of the
Debot
analysis was weak.

(iii)

Has the information been corroborated?

[57]

Given
    the weakness of the second
Debot
criteria, corroboration was of
    particular importance. Here, the appellants attack centered on two points. The
    first is the affiants error in summarizing the CIR. As explained earlier, the
    affiant indicated in the ITO that a CIR revealed that on August 8, 2008 Elijah
    had given 10 Turntable Crescent, unit 1, as his address. However, under
    cross-examination, the affiant acknowledged that it was Ishmael and not Elijah who
    had given this address. This, the appellants argue, constituted a significant
    error and as a result, it was not safe to rely on other details in the unredacted
    ITO which were insulated from challenge.

[58]

The
    trial judge was aware of this error and the fact that the affiant had drawn it
    to the Crowns attention after realizing the error had been made. The trial
    judge correctly determined that the reference to the CIR should be excised from
    the ITO. She determined, however, that this was an inadvertent error by the
    affiant which did not raise issues as to the affiants credibility or
    reliability. This was her assessment to make and I see no basis to interfere
    with it.

[59]

The
    trial judge also considered the second major concern raised by the appellants.
    That concern was that the ITO contains conflicting references to the colour of Elijahs
    car. The registration for Elijahs vehicle shows that it is silver in colour.
    The CI and a police officer who reported observing Elijahs car both described
    it as blue.

[60]

Again,
    I would not interfere with the trial judges conclusion that little weight should
    be placed on this discrepancy in colour. In her view, the affiant properly
    included all of the details reported to him concerning the car even though
    there were inconsistencies. The discrepancy in colour, however, did not
    undermine the central corroborative claim that Elijah drove a four-door Honda
    Civic with licence plate number ATBS 297.

[61]

Moreover,
    the trial judge relied on the fact that the details of the CIs tip about the
    circumstances of the observation of Elijah with a firearm were corroborated by
    a CIR. The contents of that CIR were summarized in the judicial summary. As noted
    earlier, the CIR related information obtained from an independent police
    investigation. Although the details of the CIR were redacted, the nature of its
    contents was disclosed.

[62]

As
    mentioned above, the appellants were not prejudiced by their inability to
    cross-examine the affiant on the CIRs content. The affiant indicated that he
    played no role in the investigation related to that CIR nor had he followed up
    with the officers who prepared it. As a result, there was virtually no basis for
    cross-examination of the affiant on the contents of the CIR. The appellants
    could, however, argue that less weight should be placed on it because of the
    affiants failure to make enquiries of the officers involved.

[63]

When
    the trial judge weighed all of the factors, she concluded as follows:

In this case, the tip was compelling. While the credibility of
    the informant was not strongly established in the ITO, the investigation
    corroborated a number of details, some significant, which, particularly when
    considered cumulatively, compensate for the weakness in the credibility of the
    CI as evidenced by the ITO.

The trial judges conclusion in this regard is
    supported by the record and I see no basis to interfere.

(4)

Was the night search unreasonable?

[64]

Where
    police seek to conduct a night search, s. 488 of the
Criminal Code
provides that the ITO is to include reasonable grounds for the search to be
    executed by night. In the absence of any basis being provided in the ITO for
    the night search, the appellants submit that the search was unreasonable and in
    violation of the s. 8
Charter
rights. A night search is only meant to
    be invoked exceptionally: see
R. v. Sutherland
(2000), 150 C.C.C. (3d)
    231 (Ont. C.A.), at para. 25.

[65]

The
    appellants argue that the ITO provided no basis upon which a night search of
    the premises could be authorized. Under the heading request for night grounds
    in the ITO, there is only one basis listed in support of the request. That
    basis is the belief that evidence is currently located in the premises and that
    delay could result in the potential loss of that evidence. Nothing in the rest of
    the redacted ITO or judicial summary, however, gave any reason to believe that
    the evidence would in fact be lost. As a result, the trial judge ought to have
    found the search to have been unreasonable.

[66]

I
    disagree. The trial judge acknowledged that the record did not support the
    concern that the evidence may be lost if it was not seized in a timely manner.
    She went on, however, to find that the ITO clearly showed that there was a
    basis for the police being concerned about public safety. Although those
    concerns were not specifically articulated as the basis for the request for
    night entry, the circumstances described in the ITO as a whole were sufficient
    to support and justify a night time entry into the targeted address on the
    basis of public safety. As found by the trial judge:

The imminence related not to any evidence that the firearms
    were going to be disposed of or moved, but to the imminence of a threat to
    public safety arising from the firearms as described in the ITO. The ITO set
    out the grounds for believing that there was a firearm in the residence. The
    ITO specifically requested night time authorization and it was granted. The
    requirements of s. 488 were met.

[67]

Therefore,
    in my view, when the circumstances are viewed in their totality, there existed
    reasonable grounds justifying the warrant being executed by night, and the
    trial judges conclusion that the requirements of s. 488 were met is supported
    by the record:
Sutherland
, at para. 27. That conclusion is also owed
    deference by this court, which should decline to interfere with the reviewing
    judges decision absent an error of law, misapprehension of evidence, or
    failure to consider relevant evidence:
Sadikov
, at para. 89.

F.

CONCLUSION

[68]

As
    explained in
Crevier
, the Supreme Court of Canada clearly contemplated
    that an accused would not be privy to all of the information contained in the unredacted
    ITO when it provided for the sixth step of the
Garofoli
procedure. This,
    despite the fact that the information contained in the unredacted ITO would be
    reviewed and relied on by the reviewing judge. This is permissible when the
    summary of the redacted material allows the accused to be sufficiently aware
    of the nature of the excised material to challenge it by argument or by
    evidence:
Crevier
, at para. 97. In the present case, the nature
    of the redacted information was adequately summarized in the judicial summary.

[69]

Where
    step six is followed, the accuseds sub-facial challenge to the ITO is inevitably
    less focused than if the accused had access to all of the details contained in
    the redacted ITO. It is, however, important not to lose sight of the fact that
    a sub-facial challenge attacks the reasonableness and honesty of the affiants
    belief as to the existence of reasonable and probable grounds, and not the
    ultimate accuracy of the information relied on by the affiant. In other words,
    did the affiant know or ought to have known that the information in the ITO was
    false or misleading?

[70]

Taking
    the contested CIR as an example, the challenge is not to the truth of its
    contents, but to the reasonableness of the affiants reliance on it. Here, the
    affiant admitted that he did not follow up on the accuracy of the CIR. The
    appellants can and did argue that the failure to follow up rendered the affiants
    reliance on the contents of the CIR unreasonable. It is then up to the trial
    judge who has access to the unredacted ITO to consider those submissions.

[71]

In
    conclusion, therefore, I see no basis to interfere with the trial judges
    decision and would dismiss the appeals.

Paul Rouleau J.A.

I agree S.E. Pepall
    J.A.

I agree B.W. Miller J.A.

Released: February 6, 2018


