



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gero, 2021 ONCA 50

DATE: 20210127

DOCKET: C64561

Feldman, Tulloch and Hourigan
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Gero

Appellant

Sonya Shikhman, for the appellant

Anil K. Kapoor and Victoria M. Cichalewska,
    for the interveners the Criminal Lawyers Association

Jennifer Conroy and Alexis Mulvenna,
    for the respondent

Heard: November 30, 2020, by video conference

On appeal from the conviction entered on
    July 17, 2017 and the sentence imposed on November 6, 2017, by Justice Cory A. Gilmore
    of the Superior Court of Justice, sitting without a jury, with reasons for
    sentence report at 2017 ONSC 7048.

Hourigan J.A.:

(i)

Introduction

[1]

Mr. Gero was convicted of two counts of
    possession of a controlled substance for the purpose of trafficking and one
    count of possession of the proceeds of crime. His primary submission on appeal
    is that step six of the framework for challenging a search warrant or wiretap
    authorization established by the Supreme Court of Canada in
R. v. Garofoli
,
    [1990] 2 S.C.R. 1421 violates s. 7 of the
Charter
. In the alternative,
    if the current step six framework is constitutional, he submits that the trial
    judge erred in finding that the warrant to search his residence could have been
    issued because, he argues, the information supporting the Information to Obtain
    (ITO) was not credible, corroborated, or compelling. Therefore, the appellant
    submits that the evidence obtained from the warrant should have been excluded
    under s. 24(2) of the
Charter
.

[2]

In these reasons, I will briefly review the
    facts of the case, and the positions of the parties and the intervener in the
    appeal, the Criminal Lawyers Association of Ontario (CLA). I will then consider
    the process mandated by
Garofoli
and some of the related
    jurisprudence. Next, I will consider the leading case on the step six procedure
    from this court,
R. v. Crevier
, 2015 ONCA 619, 330 C.C.C. (3d) 305.
    This review will be followed by an analysis of the arguments raised by the
    appellant and the CLA.

[3]

For the reasons outlined herein, I would dismiss
    the appeal.  In summary, the appellants submissions ignore the fact that the
Garofoli
process is designed to achieve the appropriate balance between the accused's s.
    7 rights and police needs to protect confidential informants ("CIs).  The
    current step six procedure strikes the right balance between these competing
    policy imperatives. The alternative procedures proposed by the appellant and
    the CLA would irreparably damage the existing policy balance and would not
    meaningfully increase the protection against the provision of false information
    in the
Garofoli
process.

(ii)

Facts

(a)

The Charges

[4]

In March 2015, the Toronto Police Service
    received a tip from a CI that the CI had recently purchased drugs from the
    appellant at his apartment. The CI provided this information in exchange for
    consideration, and the CI was cautioned about criminal charges for providing
    false information.

[5]

The CI identified the appellant by his nickname Boston
    and advised the police about the drugs being sold and his purchases from the
    appellant. He/she reported that Boston lived at 3847 Lawrence Avenue East in
    the first apartment on the right after exiting the elevator on the sixth floor,
    which he/she identified as either apartment 601 or 602. The CI also described
    the layout of the apartment.

[6]

The police filed an ITO in support of a search
    warrant to be executed on the appellants apartment pursuant to s. 11 of the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19.  Appendix D of the ITO
    contained details about the information provided by the CI. There was a
    reference to the fact that the CI had provided information to the police in the
    past, but there were no details regarding whether that information led to any
    arrests or seizures. The fact that the CI had a criminal record was disclosed,
    but the details of that record were not provided.

[7]

According to the ITO, the CI described the
    appellant as being 35 to 40 years old, six-foot-one to six-foot-two tall, with
    a larger build, dark brown hair in a crew cut and balding on the top. In the
    ITO, the police stated that the CI selected the appellant's picture out of a
    photo lineup. However, at trial, the photos used to form the lineup could not
    be located, nor could the original notes of the affiant, DC Kellar, on any part
    of the investigation, including the administration of the lineup.

[8]

The polices corroboration efforts were also summarized
    in the ITO. A Community Inquiry Report, dated May 18, 2013, indicated that the
    appellants address was apartment 602 at 3847 Lawrence Avenue East. That report
    records his date of birth as December 31, 1974, which would have made him 40 on
    the date of the ITO. The report described the appellant as being five-foot-ten.
    The police also reviewed an Intellibook photo of the appellant, dated January
    10, 1998, which gave descriptors of the appellant as being six feet tall,
    weighing 210 pounds, with dark brown hair and a birthplace of Boston, Massachusetts.
    The ITO only referenced the appellants height as indicated in the Intellibook
    photo. The five-foot-ten reference was not included in the ITO.

[9]

The target addresss property manager provided
    information regarding the general layout of the unit consistent with what the
    CI described and confirmed that the appellants name was on the lease for
    apartment 602. The police did not ask to see a copy of the lease. They also attended
    at the building to ascertain the location of the apartment. The sub-affiant told
    DC Kellar that apartment 602 was the first door on the right once off the
    elevator. In fact, it was   the second apartment on the right. The ITO
    incorrectly maintained that apartment 602 was the first door on the right.

[10]

On March 30, 2015, the search warrant was executed.
    During a search of the appellants apartment, the police found packaging
    materials, two digital scales, an electrical grinder covered in drug residue, a
    drug press, 18.2 grams of cocaine, 186.68 grams of Oxycocet pills, and Canadian
    currency in the amount of $80.

(b)

Decision Below

[11]

DC Kellar drafted a one-page document after speaking with the CI,
    which summarized his notes of his discussions with the CI. DC Kellar
    inadvertently destroyed the original notes after he transferred departments. This
    summary contained details that could potentially reveal the CIs identity.

[12]

The summary was inadvertently disclosed to defence counsel the
    morning of the preliminary inquiry
.
It contained
    information that the CI had advised that the appellant drove a red car with a
    tall antenna that was usually parked in the apartment buildings underground parking
    lot. It also disclosed that the CIs tip was that Mr. Gero lived in apartment
    601 or 602. In the redacted ITO provided to the defence, the fact that the CI
    said that the accused drove a red car was entirely redacted.
The
    ITO also only mentioned apartment 602. A
t the
    preliminary hearing, counsel for the appellant cross-examined the affiant DC
    Kellar regarding the red car and adduced evidence that the police could not
    corroborate the information regarding the vehicle. DC Kellar also conceded on
    cross that the police did not investigate apartment 601.

[13]

The appellant challenged the validity of the
    search warrant pursuant to s. 8 of the
Charter
. The Crown engaged the
    step six procedure to defend the warrant and provided the trial judge with a
    copy of the un-redacted ITO and a proposed judicial summary, which included
    information regarding the red car. The appellant brought a motion for
    disclosure seeking the details of the facts that were presented in the proposed
    summary. The appellant wanted to know what personal details the CI knew about
    the appellant, precisely what he said about the "drug dealing
    business," exactly how long the CI claimed to have known the appellant and
    wanted to learn more about their alleged drug transactions. The Crown objected
    to this disclosure on the basis that it would compromise the identity of the CI.

[14]

On the motion, the
Crown did not concede
    that the red car tip would have remained undisclosed in the judicial summary
    but for the accidental disclosure. The Crown explained that, while disclosing
    the red car tip would not be automatic, it may have nevertheless come out
    following discussions between DC Kellar and the Crown assigned to the case. The
    Crown did, however, concede by way of amplification that the police checked the
    appellants garage for a red car and could not corroborate its existence. The Crown
    also conceded that apartment 602 is the second door to the right of the
    elevator.

[15]

The trial judge
    reviewed the redacted ITO, the unredacted ITO and the Crown summary. She
    dismissed the disclosure motion and found that the summary, as amplified on
    review, provided sufficient information to allow the appellant to meaningfully
    challenge the ITO. In the course of her ruling regarding additional disclosure,
    the trial judge
found that it was not
    clear whether the information about the red car would have been disclosed in
    any event:

The Defence points out that had it not been
    for their accidental discovery of certain information which allowed it to
    cross-examine on certain points at the preliminary inquiry, the Defence would
    never have known about this information and lack of corroboration. It is
    unclear if this information would have been disclosed in any event...

[16]

As part of the s. 8 application, counsel
    cross-examined the affiant with the Crown's consent, and the preliminary
    inquiry transcripts of the cross-examination of the affiant and sub-affiant
    were tendered. The validity of the warrant was upheld, and the s. 8 application
    was dismissed. The trial judge held that minor omissions in the ITO would not
    have made a difference in whether the warrant was issued. Further, she found
    that the police were acting in good faith, and there were sufficient grounds to
    believe that narcotics would be located in the place searched. After the
    dismissal of the s. 8 application, the appellant admitted the case against him
    and findings of guilt  subject to the outcome of the remaining motions  were
    registered.

[17]

The appellant also challenged the step six
    procedure's constitutional validity as a violation of s. 7 of the
Charter
.
    The trial judge had previously heard a similar constitutional challenge in
R.
    v. N.J.,
2017 ONSC 857, 346 C.C.C. (3d) 269. The parties agreed that the
    reasons in
N.J.
adequately responded to the issues raised by the
    appellant and that the trial judge could simply adopt her prior reasons. She
    did so.

[18]

In
N.J.,
the applicant challenged the
    constitutionality of
Garofoli
step six on the basis that the procedure
    does not permit the defence to know the case to be met, offends the open court
    principle, and undermines public confidence in the administration of justice.
    The Crown relied on
Crevier
, arguing that this court had already
    determined that step six complies with s. 7 of the
Charter
. In the
    alternative, the Crown argued that step six provides a fair and
    constitutionally sound process.

[19]

The constitutional challenge in
N.J.
was dismissed. The trial judge recognized that the Step Six process involves the
    balancing of a number of competing interests including the right to make full
    answer and defence, informant privilege, law enforcement and the role of both
    the Crown and the trial judge and held that the appropriate balance could be
    achieved through this process without infringing the accuseds
Charter
rights.

(iii)

Positions on Appeal

(a)

Appellants Position

[20]

The appellant submits that the constitutionality
    of step six has not been determined by this court or the Supreme Court. He
    argues that the current step six framework is constitutionally flawed because
    an accused cannot challenge the truthfulness and accuracy of the affiant
    swearing the ITO. His position is that it does not provide a mechanism for
    testing whether the affiant fairly summarized the CIs information when
    applying for a warrant. To remedy this constitutional flaw, the appellant
    proposes a new process, which includes the use of special advocates.

[21]

In the alternative, the appellant submits that
    if the current step six process is found to be constitutionally valid, the
    trial judge erred in holding that the warrant could issue. His position is that
    the informant was not credible, the information was not adequately
    corroborated, and the tip was not compelling.

(b)

Interveners Position

[22]

The CLAs position is that special advocates
    were created by an amendment to the
Immigration and Refugee Protection Act
,
    S.C. 2001, c. 27 (
IRPA
) in response to the Supreme Courts decision
    in
Charkaoui v. Canada (Citizenship and Immigration)
, 2007 SCC 9,
    [2007] 1 S.C.R. 350.  It submits that special advocates are
sui generis
to the
IRPA
context and should not be imposed in other contexts.

[23]

According to the CLA, special counsel should be
    appointed at the accuseds request when an accused sub-facially challenges a
    warrant. The CLA also offers standard terms of appointment that could be used
    when
amicus
or special counsel are appointed.

(c)

Crowns Position

[24]

The Crown submits that the warrant was properly
    issued and that the step six procedure is constitutionally sound. Further, the
    Crown argues that the appellants and interveners proposed new
Garofoli
procedures are impracticable and ineffective.

(iv)

Analysis

(a)

Background on
Garofoli

[25]

Garofoli
outlines six steps to follow when the Crown objects to disclosing part of an
    affidavit filed in support of an application for authorization. The same
    procedure applies to an ITO relied upon to support a search warrant:
R. v.
    Reid
, 2016 ONCA 524, 132 O.R. (3d) 26, at para. 84, leave to appeal to
    S.C.C. refused, 37214 (February 9, 2017). The procedure, which was not intended
    to be exclusive or exhaustive, was articulated by the Supreme Court in
Garofoli
as follows, at p.1461:

[Step] 1: Upon opening of the packet, if the
    Crown objects to disclosure of any of the material, an application should be
    made by the Crown suggesting the nature of the matters to be edited and the
    basis therefor. Only Crown counsel will have the affidavit at this point.

[Step] 2: The trial judge should then edit the
    affidavit as proposed by Crown counsel and furnish a copy as edited to counsel
    for the accused. Submissions should then be entertained from counsel for the
    accused. If the trial judge is of the view that counsel for the accused will
    not be able to appreciate the nature of the deletions from the submissions of
    Crown counsel and the edited affidavit, a form of judicial summary as to the
    general nature of the deletions should be provided.

[Step] 3: After hearing counsel for the
    accused and reply from the Crown, the trial judge should make a final
    determination as to editing, bearing in mind that editing is to be kept to a
    minimum and applying the factors listed above.

[Step] 4: After the determination has been
    made in step 3, the packet material should be provided to the accused.

[Step] 5: If the Crown can support the
    authorization on the basis of the material as edited, the authorization is
    confirmed.

[Step] 6: If, however, the editing renders the
    authorization insupportable, then the Crown may apply to have the trial judge
    consider so much of the excised material as is necessary to support the
    authorization. The trial judge should accede to such a request only if
    satisfied that the accused is sufficiently aware of the nature of the excised
    material to challenge it in argument or by evidence. In this regard, a judicial
    summary of the excised material should be provided if it will fulfill that
    function. It goes without saying that, if the Crown is dissatisfied with the
    extent of disclosure and is of the view that the public interest will be
    prejudiced, it can withdraw tender of the wiretap evidence.

[26]

The
Garofoli
procedure has particular
    utility when a search warrant is issued  as in this case  primarily based on CI
    information. CIs enjoy the near-absolute class privilege. No identifying
    information about the CI may be disclosed to the defence:
Reid,
at paras.
    79-80; and
Crevier
, at paras. 48-50. The privilege is designed to
    protect CIs from retaliation, and, as a corollary, to encourage CIs to come
    forward with valuable information:
Crevier
, at para. 48.

[27]

CI privilege creates a dilemma for Crowns
    defending the warrant on review when CI information forms the grounds for a
    search warrant. The CI information may have entirely justified the warrant
    because it meets the three C's criteria from
R. v. Debot
, [1989] 2 S.C.R.
    1140, being credible (from a reliable source), compelling (sufficiently
    detailed and current, not based on rumour), and corroborated (by independent
    police investigation). However, due to CI privilege, the Crown may be barred
    from tendering this evidence because it may reveal the CIs identity.

[28]

Garofoli
offers
    two routes for addressing this problem. First, the Crown can opt to redact all
    the information which could identify the CI. It may then rely on step five of
Garofoli
and justify the issue of the warrant solely on the basis of
    the information contained in the redacted ITO:
R. v. Boussoulas
, 2014
    ONSC 5542, 320 C.R.R. (2d) 64, at paras. 16-17, aff'd 2018 ONCA 222, 407 C.R.R.
    (2d) 44. The risk with this approach is that a heavily redacted ITO may not
    provide reasonable and probable grounds for the issuance of a warrant. As a
    result, a court may deem the warrant invalid and the searches unlawful based on
    the redacted ITO, even though the unredacted ITO demonstrates that the warrant
    was properly issued:
Crevier
, at para. 46.

[29]

Alternatively, the Crown may rely on step six.  If
    the redacting process renders the search warrant unsupportable, the Crown can
    apply to have the reviewing judge consider as much of the redacted ITO as is
    necessary to support the search warrant. The court should only accede to this
    request if the accused receives a judicial summary of the nature of the
    redacted information, and that summary allows the accused to challenge the
    excised material in argument or by evidence:
Crevier
, at para. 72. If
    the redacted material cannot be properly summarized, that material should not
    be considered:
Crevier
, at para. 87,
Boussoulas
(ONSC), at para.
    18.

[30]

Step six received virtually no attention in the
    jurisprudence until 2010 when Code J. released his decision in
R. v.
    Learning
, 2010 ONSC 3816, 258 C.C.C. (3d) 68.  Code J. questioned why step
    six was not relied on more frequently by the Crown. He succinctly summarized
    the dilemma police face during CI cases and considered step six an innovative
    solution to this problem. Crowns began to rely on step six with increased
    frequency. Then, in 2015, this court released its decision in
Crevier
,
    which set out a comprehensive framework for step six proceedings.

(b)

Crevier

[31]

The facts of
Crevier
mirror most step six
    cases. The accused challenged the validity of search warrants executed to
    search her apartment and seize cocaine and a gun found within it. The police
    used information from two CIs to obtain the warrant. The Crown conceded that
    the redacted materials were insufficient to support the warrants and asked the
    trial judge to proceed to step six. The trial judge did so and provided the
    accused with a judicial summary of the redacted material. Ultimately, he dismissed
    the accused's s. 8 challenge and upheld the warrants.

[32]

The accused appealed on the basis that the trial
    judge deprived her of her right to make full answer and defence. She argued
    that she was entitled to launch a sub-facial attack on the excised material
    and, to do so, she required full details of the excised material. Since she was
    only provided with a summary, she was unable to test the reliability and
    credibility of the evidence under review. As a result, she submitted, the court
    should not have considered the unredacted affidavit, and the warrants should be
    set aside.

[33]

Rouleau J.A., writing for the court, dismissed
    the appeal. He concluded that
Garofolis
step six procedure, when
    properly exercised, appropriately balanced the accuseds right to make full
    answer and defence with the needs of law enforcement and the values behind CI
    privilege. In the course of reaching this conclusion, he offered several
    valuable insights regarding the step six procedure.

[34]

First, Rouleau J.A. stressed that the accuseds
    right to make full answer and defence must be considered in the context of a step
    six proceeding, which is a pretrial, threshold evidentiary hearing and not a
    determination of guilt or innocence:
Crevier
, at para. 64.

[35]

Second, Rouleau J.A. clarified that while an
    accused is precluded from accessing the redacted portions of the ITO, they are
    not stopped from launching a facial and sub-facial attack against the ITO. A
    facial challenge looks to whether the ITO, on its face, was sufficient to
    support the warrant. All the statements in the ITO are accepted as reliable and
    accurate. Based on the stated facts in the ITO, the court simply asks whether
    an authorizing judge could have issued the warrant. The record is not enlarged
    or amplified by any additional evidence:
Crevier
, at para. 73.

[36]

A sub-facial challenge goes behind the ITO and
    attacks the reliability of its content. Any errors and inaccuracies revealed by
    this sub-facial attack must be excised and excluded from consideration.
    However, the reviewing court may consider additional evidence available to the
    police investigators when the ITO was sworn to correct good faith errors:
Crevier
,
    at para. 74.

[37]

Rouleau J.A concluded that the current step six
    procedure allowed for meaningful sub-facial challenges. Armed with a
    well-drafted judicial summary, Crown disclosure, the redacted ITO, and any
    cross-examination of the affiant and evidence tendered, an accused could
    meaningfully challenge the underlying adequacy of the ITO. For example, the
    accused could highlight areas of omission for the reviewing court, attack the
    steps (or lack thereof) taken to corroborate the information received from the
    informer, and make arguments in the alternative and on general principles of
    informer reliability:
Crevier
, at para. 77. See also paras. 78-80.

[38]

Third, Rouleau J.A provided directions for
    drafting judicial summaries. In practice, the Crown will prepare the first
    draft of the judicial summary. When reviewing the summary, the judge should
    ensure that the summary provides the accused with sufficient information to
    evaluate whether the preconditions for issuing the warrant were met. With CIs,
    this requires information going to the three
Debot
factors. The court
    provided a non-exhaustive list of the type of information that could go into
    judicial summaries:
Crevier
, at para. 84. If the nature of the
    redacted information cannot be summarized, the judge should disregard those redacted
    portions when reviewing the warrants propriety:
Crevier
, at para. 87.

[39]

Fourth, given the asymmetry of information
    necessitated by step six, Rouleau J.A. also reasoned that the weight given to
    undisclosed information in the ITO might be reduced. He analogized this
    procedure to the admission of testimony not subject to full cross-examination
    because of a witnesss intervening illness or death. In those situations, the
    lack of testing by cross-examination is taken into account when determining the
    weight given to otherwise admissible evidence:
Crevier
, at paras. 88
    and 90.

(c)

Constitutionality of Step Six

[40]

The appellant submits that the fundamental
    problem with the current step six procedure is that it deprives the accused of
    the ability to challenge the truthfulness of the affiant  a state agent. 
    There is, he argues, nothing that precludes a police officer from engaging in
    significant exaggeration, recalibration or outright fabrication in recording
    the information that comes from a CI. He relies heavily on
Charkaoui
,
    where the Supreme Court held that
IRPA
procedures that limited an
    accuseds right to sensitive information during security certificate reviews
    infringed s. 7 of the
Charter.

[41]

As I understand it, the appellants submission
    boils down to two arguments. First, he submits that the current procedure
    deprives the accused of the right to make full answer and defence. Second, he
    advances an argument that the procedure precludes an assessment of the
    credibility and accuracy of the information in issue because it is impossible
    to determine whether the affiant has made full, frank and fair disclosure.  I
    will consider these submissions in turn below.

[42]

Regarding the right to make full answer and
    defence, it is worth reiterating that the
Garofoli
procedure was
    designed by the Supreme Court to balance the
Charter
rights of the
    accused, including the right to make full answer and defence, against the needs
    of law enforcement, including the obligation to protect CIs:
Garofoli
,
    at p. 1458. The appellants submission in this regard appears to be premised on
    the basis that the only interests engaged in the
Garofoli
procedure
    are those of the accused. Of course, when the analysis is undertaken on this
    basis, it will be almost impossible for the
Garofoli
procedure to pass
    constitutional muster.

[43]

The appellants submission also ignores that the
    content of the right to make full answer and defence is informed by context; it
    is not static. As the Supreme Court stated in
R. v. Mills
, [1999] 3
    S.C.R. 668, at para. 72. the principles of fundamental justice do not entitle
    the accused to the most favourable procedures that could possibly be
    imagined because fundamental justice embraces more than the rights of the
    accused.

[44]

Context is important in a
Garofoli
review. It is an evidentiary admissibility hearing designed to determine
    whether there was any basis upon which an authorization could have been ordered:
R. v. Pires; R. v. Lising,
2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30. The
Garofoli
hearing questions the validity of an evidence-gathering tool;
    it is not a trial on the merits where guilt or innocence is at stake:
Crevier
,
    at para. 64. The right of the accused to make full answer and defence needs to
    be viewed in the context of an evidentiary hearing that balances the rights of
    the accused against law enforcement's needs. With this context in mind, a
    constitutionally appropriate balance is struck when the accused receives a
    judicial summary outlining the nature of the redactions in the ITO prior to the
    court relying on those redactions:
R. v. Dhesi
, 2019 ONCA 569, 439
    C.R.R. (2d) 348, at para. 11;
Crevier
, at para. 87.

[45]

The unique context of step six distinguishes it
    from the procedures impugned in
Charkaoui
. The
IRPA
procedures
    at issue in
Charkaoui
allowed a designated judge to effectively
    determine the named persons guilt or innocence by deciding whether the security
    certificate was issued on reasonable grounds. During this process, the judge could
    consider confidential information not included in the judicial summary:
Charkaoui,
at para. 55.  Those features necessarily shaped the type of procedures
    required to satisfy the accuseds right to make full answer and defence. In the
    context of step six, however,
Charkaoui
is of little value since that
    case makes it clear that s. 7 does
not
require a particular type of
    process but one that is fair in light of the nature of the proceedings and the
    interests at stake:
Reid
, at para. 49. As the Supreme Court explained
    in
Charkaoui
, at para. 20:

Section 7 of the
Charter
requires not
    a particular type of process, but a fair process having regard to the nature of
    the proceedings and the interests at stake:
United States of America v.
    Ferras
, [2006] 2 S.C.R. 77, 2006 SCC 33, at para. 14;
R. v. Rodgers
,
    [2006] 1 S.C.R. 554, 2006 SCC 15, at para. 47;
Idziak v. Canada (Minister
    of Justice)
, [1992] 3 S.C.R. 631, at pp. 656-57. The procedures required
    to meet the demands of fundamental justice depend on the context (see
Rodgers
;
R. v. Lyons
, [1987] 2 S.C.R. 309, at p. 361;
Chiarelli
, at pp.
    743-44;
Mount Sinai Hospital Center v. Quebec (Minister of Health and
    Social Services)
, [2001] 2 S.C.R. 281, 2001 SCC 41, at paras. 20-21). Societal
    interests may be taken into account in elucidating the applicable principles of
    fundamental justice:
R. v. Malmo-Levine
, [2003] 3 S.C.R. 571, 2003 SCC
    74, at para. 98
.

[46]

In addition to the context of a
Garofoli
review, it is also essential to recognize that the process has built-in
    safeguards to ensure that the accused has sufficient information to challenge
    whether the issuing justice could have been satisfied that the statutory
    conditions for the issuance of the warrant were met. An accused challenging the
    warrants validity has more than the judicial summary and redacted ITO in his
    or her possession. They will also have access to general Crown disclosure, and
    they may also have access to third party disclosure material and an opportunity
    to cross-examine the affiant. The accused may also lead evidence:
Crevier
,
    at para. 63. Further, the accused also has the benefit of the assistance of the
    trial judge, who acts as a gatekeeper, balancing the competing interests in an
    appropriate and fair manner.

[47]

In my view, an accuseds right to make full
    answer and defence is not compromised by the existing step six procedure. It properly
    balances the competing interests of the accused and the state. Indeed, this
    case demonstrates how the process fairly protects the accuseds rights. The
    appellants position is that without the unintended disclosure, he would not
    have known to challenge the truthfulness of the affiant. As the trial judge
    correctly found it is unclear if this is accurate. In any event, the judicial
    summary, the fruits of the cross-examination and the amplified facts provided
    by the Crown demonstrated that the affiant failed to provide details about the
    CIs criminal record and information about past performance, and that there was
    a mistake in the ITO regarding the location of the apartment. The defence was
    also able to establish that the police tried and failed to corroborate the information
    about the red car. I am satisfied that the appellant was able to meaningfully
    challenge the ITO.

[48]

The second part of the appellants argument is
    that the step six procedure does not permit a meaningful assessment of the
    credibility criteria in
Debot
. He submits that the question of the compellability
    of the information as informed by the characteristics of the information
    provided should not be confused with the question of whether the information in
    the ITO was actually provided by the CI.  The former questions an informants
    state of mind and reliability; the latter addresses the affiants credibility,
    specifically whether the affiant has provided full, frank and fair disclosure. In
    other words, he argues that the process offers no protection in situations
    where the police fabricate or deliberately misstate in an affidavit the
    information provided by the CI.

[49]

It is well established that an affiant seeking a
    judicial authorization has to make full, frank and fair disclosure and cannot
    mislead the issuing justice through the language used or strategic omissions:
R.
    v. Araujo
, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 47.  An affiant must
    also disclose details that are unfavourable to the CI:
Crevier
, at
    para. 68. Police officers who swear such affidavits are well aware that they
    are subject to professional and criminal sanctions if they mislead the court.
    Further, they know that the evidence they provide in affidavits will be closely
    scrutinized.

[50]

In the case at bar, there is nothing in the
    record to support the appellants assertion that the affiant fabricated or
    exaggerated the evidence.  At its highest, the revelation about the red car
    permitted the appellant to establish through cross-examination that the affiant
    attempted to verify the information about the vehicle but was unable to do so. The
    mistake about the apartments precise location on the sixth floor was acknowledged
    and clarified by way of amplification. The trial judge had all of this
    information available to her regarding the problems with the ITO.

[51]

I acknowledge that under the current
Garofoli
procedure, it is open to a police officer to mislead the issuing justice
    deliberately. It is also possible that, in good faith, an affiant makes an
    error in the ITO or omits relevant information. However, the potential for
    fabrication of evidence, misleading the court, or good faith errors exists with
    all witnesses. It should also be remembered that a warrant is presumptively
    valid.

[52]

Further, as will be discussed below, the new
    procedures proposed by the appellant and the CLA would not meaningfully reduce
    the potential for fabricating or misleading evidence filed in support of an
    authorization.

(d)

The Proposed New Step Six Process

[53]

Based on the foregoing, I conclude that the step
    six procedure does not breach s. 7 of the
Charter
.  Usually,
    alternative procedures are only considered where an existing common law rule
    infringes s. 7 of the
Charter
:
R. v. Swain
, [1991] 1 S.C.R.
    933, at pp. 978-980. Thus, there is no constitutional imperative requiring the
    establishment of a new step six procedure.  I also note that the appellant
    never raised the issue of the appointment of special advocates in the court
    below. Nonetheless, for the sake of completeness and to address the argument
    that the proposed procedures would be more equitable, I will consider the new
    procedures recommended by the appellant and the CLA.

[54]

The first part of the appellants new procedure
    is to restrict the availability of step six drastically. The appellant submits
    that it should only be relied on when independent corroboration of a CIs tip
    is impossible or impractical. Examples of such situations would be limited to
    cases where independent corroboration cannot be carried out due to the nature
    of the alleged criminality or pressing time constraints to ensure public
    safety. In all other circumstances, according to the appellant, the police
    should corroborate the CI tip through independent investigation and should not
    be permitted to rely on step six.

[55]

The second component of the appellants new procedure
    is that when the Crown invokes step six, the accused should be permitted to
    apply to the trial judge to have a special advocate appointed. The special
    advocate should have access to the entire unredacted ITO and all relevant
    documents according to the appellant. After receiving the material, the special
    advocate may request permission to cross-examine the affiant and the current
    rules regarding leave to cross-examine the affiant would apply. If the court
    grants leave to cross-examine, the special advocate will do so in the absence
    of the accused and their counsel. Afterward, the special advocate and the Crown
    would make submissions on the areas of the ITO to be excised and/or amplified.
    Following that, defence counsel and the accused would return and be advised of
    the new content of the ITO. Defence counsel could then make meaningful
    submissions on the validity of the warrant.

[56]

The CLA proposes a different process. It argues
    that special counsel should be appointed at the accuseds request when an
    accused sub-facially challenges a warrant.  Special counsel would review
    confidential information to determine the viability of a sub-facial challenge and,
    if viable, advance a sub-facial challenge in
ex parte
proceedings (
i.e.
,
    without the accused). The accused should be permitted to select their appointed
    counsel.

[57]

Regarding
amicus
, the CLA submits that
    they may be appointed when the court drafts a judicial summary of the redacted
    information in the ITO. The decision to appoint an
amicus
should be
    discretionary.
Amicus
should be appointed when factors such as the
    complexity and volume of the confidential information and the nature of the
    privilege claims advanced favour their use.

[58]

In my view, both new procedures are
    fundamentally flawed and should not be adopted.

[59]

The appellants proposed procedure is based on
    the special advocates' procedure under the
IRPA,
which he suggests
    should serve as a template for a new step six procedure. I disagree. Special
    advocates are typically appointed under the
IRPA
in security certificate
    hearings, which are very different proceedings from
Garofoli
applications: See
Canada (Citizenship and Immigration) v. Harkat
, 2014
    SCC 37, [2014] 2 S.C.R. 33, at paras. 30-37. As noted above, in security
    certificate hearings, the designated judge effectively determines the named
    person's guilt or innocence by determining whether the certificate was issued
    on reasonable grounds. The judge is also permitted to consider confidential
    information that is not included in the judicial summary:
Charkaoui
, at
    para. 55.  This is an entirely different context from
Garofoli
applications, where the guilt or innocence of the accused is not at stake.
    Further, in a
Garofoli
application, it is impermissible for the judge to
    rely on privileged information that cannot be sufficiently summarized:
Crevier
,
    at para. 87.

[60]

A review of the jurisprudence regarding the
    appointment of an
amicus
is also helpful in evaluating the efficacy of
    the proposed new procedures. Trial judges have the discretion to tailor a procedure
    in a
Garofoli
application that best balances trial fairness and the
    protection of CIs in the circumstances of the individual case. This discretion
    includes the ability to appoint
amicus
in particularly complex
    matters:
R. v. Basi
, 2009 SCC 52, [2009] 3 S.C.R. 389, at para. 57.
    However, the appointment of an
amicus
is the exception and not the
    rule:
R. v. Shivrattan
, 2017 ONCA 23, 346 C.C.C. (3d) 29, at paras.
    65-66, leave to appeal to S.C.C. refused, 37491 (July 20, 2017), and
R. v.
    Thompson
, 2017 ONCA 204, at paras. 23, 25.

[61]

As Doherty J.A. observed in
Shivrattan,
at paras. 67-69,

there are good reasons why
amicus
is not
    routinely appointed:

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.

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.

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.

[62]

The concern about the protection of CIs is
    heightened in narcotics investigations where CIs play a critical role in
    helping the police gain knowledge of drug trafficking operations, and the
    potential for retribution is increased:
R. v. Scott
, [1990] 3 S.C.R.
    979, at p. 994.

[63]

The mandatory or routine appointment of an
amicus
shifts the delicate balance between the rights of the accused and the
    protection of CIs that underlies
Garofoli
applications in favour of
    the accused. For this reason,
amicus
will only be appointed in
    exceptional cases where the complexity of the circumstances requires the
    appointment to ensure that the rights of the accused are adequately protected. In
    other words,
amicus
is only appointed where it is necessary to restore
    the proper balance between the competing policy imperatives. To make the
    appointment of
amicus
routine would result in the
Garofoli
process being permanently imbalanced in favour of the accused.

[64]

The concerns identified regarding the
    appointment of
amicus
would be exacerbated under either of the new
    procedures proposed in the case at bar.  Special counsel or special advocates
    would be appointed not by the court but by the accused. The appellant suggests
    that defence counsel would provide the special advocate with all necessary
    information upfront, such that there would be no need for further
    communications after the special advocate viewed the unredacted ITO. The CLA
    proposes that special counsel may continue to communicate with defence counsel
    even after reviewing the unredacted ITO, provided that counsel maintains
    privilege. I agree with the Crowns submission that the process proposed by the
    appellant would offer little benefit to the accused because special counsel
    could not communicate with the defence and that the CLA proposal would increase
    the risk of inadvertent disclosure to unacceptable levels.

[65]

Finally, the whole
    purpose of a new procedure under
Garofoli
is to enable the accused to make full
    answer and defence by challenging
whether the affiant
    has made full, frank and fair disclosure. Even if an affiant is required to
    turn over to independent counsel all of the documents that support an
    affidavit, there is no guarantee that proper disclosure will be made.
If an affiant is determined to fabricate or
    exaggerate evidence, the fact that the state is required to turn over the
    underlying CI notes is of no moment. Simply put, if a police officer is
    prepared to give false evidence in an affidavit, there is no reason to believe
    that the officer will not similarly fabricate the underlying documentation.

(e)

Basis for Issuing the Warrant

[66]

In the alternative, the appellant argues that
    the warrant should not have been issued because the information in the ITO was
    not compelling, credible and corroborated.

[67]

A judge's role on a
Garofoli
application
    is to determine whether there was any basis to grant the authorization. In
R.
    v. Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d), Watt J.A. described the scope
    of warrant review at para. 84 this way:

The scope of warrant review is narrow. The
    review is not a
de novo
hearing of the
ex parte
application. The
    reviewing judge does not substitute his or her view for that of the issuing
    judge:
Garofoli
, at p. 1452;
R. v.

Ebanks
, 2009 ONCA
    851, 97 O.R. (3d) 721, at para. 20, leave to appeal to S.C.C. refused, [2010] 1
    S.C.R. ix; and
R. v.

Morelli
, 2010 SCC 8, [2010] 1 S.C.R.
    253, at para. 40. The standard is whether there is sufficient credible and
    reliable evidence to permit a justice to find reasonable and probable grounds
    to believe that an offence has been committed and that evidence of that offence
    would be found at the specified time and place of search:
Morelli
, at
    para. 40. Said in another way, the test is whether there was reliable evidence
    that might reasonably be believed on the basis of which the warrant could  not
    would  have issued:
Morelli
, at para. 40;
Araujo
, at para.
    54; and
Garofoli
, at p. 1452.

[68]

The question in the case at bar is whether there
    was reliable evidence that might reasonably be believed to issue the warrant
    having regard to the
Debot
criteria. At trial, the appellant conceded
    that the tip was compelling. This was a sensible concession. The tip was
    detailed as the CI recounted two recent drug purchases, including the type of
    drug purchased, along with the quantity, price and packaging. The CI also knew
    the appellant by his nickname, where he lived, and his apartments layout.

[69]

There was also a basis for concluding that the
    CI was credible. It would have been preferable for the affiant to detail the
    past performance of the CI. However, the affiant was able to provide evidence
    that the CI was known to the police and had in the past provided information
    that was extremely accurate.  The affiant also should have included a copy of
    the CI's criminal record instead of merely noting that he had a criminal record
    but had no outstanding charges. I am confident that both the issuing justice
    and the reviewing judge would have considered the lack of detail regarding the
    criminal record.  I also note that the CI was cautioned about providing false
    information to the police.

[70]

Finally, I am satisfied that there was
    meaningful corroboration of the tip. The police confirmed through their
    resources the appellant's nickname, general description and approximate age. They
    were also able to verify through the property manager that the appellant lived
    in one of the two apartments identified by the CI and that the apartments
    physical layout matched the CIs description.

[71]

In considering the
Debot
criteria, the
    court must look at the totality of the circumstances to determine whether a
    warrant could have issued. Weakness in one factor may be compensated by
    strength in the other two:
Debot
, at p. 1168. In the present case,
    this was a highly compelling tip, and the police made sufficient efforts to
    corroborate the information. While there may have been issues regarding the CIs
    credibility because of omissions in the affidavit, there was a reasonable basis
    to find him credible. In all the circumstances, the reviewing judge made no
    error in upholding the issuance of the warrant.  Given this conclusion, it is
    unnecessary to consider the appellants s. 24(2) argument.

(v)

Disposition

[72]

I would dismiss the conviction appeal.

[73]

In the appellants notice of appeal, he also
    appeals, in the alternative, his sentence. I would also dismiss this ground of
    appeal. The appellants factum does not address sentencing or identify any
    errors in the trial judges sentencing reasons. In any event, I see no basis to
    interfere with the sentence imposed. The appellant was sentenced to a 90-day
    intermittent sentence with 24 months probation, as requested by defence
    counsel at trial. This is far below the 12 to 15 months of custody sought by
    the Crown.

Released: K.F. January 27, 2021

C.W. Hourigan J.A.

I Agree. K. Feldman
    J.A.

I Agree. M. Tulloch
    J.A.


