The Ontario Court of Appeal has outlined the gatekeeping role of trial judges when determining the admissibility of evidence obtained through search warrants based on confidential informants.
Step 6 is a reference to the procedures set out by the Supreme Court of Canada in its decision in R. v. Garofoli in 1990 in cases where the courts consider edited warrant documents to protect informant privilege. A judicial summary could suffice if it ensures that “the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence,” wrote the late justice John Sopinka on behalf of the top court.
In Crevier, the Court of Appeal stated that a “well crafted judicial summary is essential” for defendants to exercise their right to make full answer and defence. “The adequacy of the summary, therefore, plays a key role in the court’s assessment of whether the accused is sufficiently aware of the nature of the redacted information so that step six can be employed,” wrote Justice Paul Rouleau with Justices Kathryn Feldman and Alexandra Hoy concurring.
The Court of Appeal included a list of categories of the type of information that should be in the summaries, such as the source of the informant’s information and that person’s relationship with the accused.
The decision stressed that what goes into a summary will vary from case to case. “The context, however, will always be one where the summary will never be a complete substitute for full disclosure, given the need to protect informer privilege,” wrote Rouleau.
While the decision in Garofoli dates back 25 years, the Crown rarely used Step 6 motions in the subsequent years, noted Superior Court Justice Michael Code in 2010 in R. v. Learning. Code cited the need to test them more often in court, a view supported by Ontario Court of Appeal Justice Russell Juriansz two years later in a concurring decision in R. v. Rocha. Only a “resort to the procedure” will help develop the jurisprudence in this area to balance the competing rights, wrote Juriansz.
Prior to those rulings, if the edited information to obtain wasn’t sufficient to justify the warrant, the Crown would often concede a breach and possibly argue the court should admit the evidence from the search under s. 24(2) of the Charter of Rights and Freedoms.
Since these decisions, “there has been an explosion in reliance on Step 6,” says lawyer Michael Dineen, who describes the procedure as a catch-22 situation for defendants. “Sometimes, virtually all information related to the informant is redacted. The defence can’t get leave to cross-examine the affiant to get more information without showing a likelihood of undermining the issuance of the warrant, which is almost impossible, with no information,” says Dineen, a partner at Dawe Dineen in Toronto.
The Court of Appeal upheld convictions for drug and firearm offences as well as the sentence imposed in Crevier. It found the summary was sufficient in that case and the defendant was able to make a “sub-facial” challenge to the reliability of the content in the information to obtain.
The three-judge panel also stated that when deciding on a Step 6 motion, the right to make full answer and defence doesn’t suffer because it’s about admissibility and not guilt or innocence. However, “there are other important but competing interests at play, including the interest of maintaining informant privilege,” wrote Rouleau.
One of the concerns with the Step 6 process is that “it effectively immunizes any challenge to the truthfulness,” of what’s in the information to obtain, says Nathan Gorham, who was defence counsel for the appeal in Crevier.
Police handlers will usually obtain the statements of informants and then pass them on to another officer who’s the affiant for a warrant, says Gorham, a partner at Rusonik O’Connor Robbins Ross Gorham & Angelini LLP in Toronto.
As well, the redacted documents or summaries often “don’t include basic information,” says Gorham. Even the specific criminal offences that an informant has been convicted of or arrested for aren’t often disclosed because the Crown says it could breach informant privilege.
Richard Fedorowicz, a Toronto defence lawyer, echoes the concern about being able to challenge the credibility of the information that led to the granting of a search warrant. In a Step 6 case he argued in late 2012, the trial judge ultimately found that police had improperly listed one person as a confidential informant and were negligent in leaving out information about another informant.
The process is “antithetical” to the normal role of a defence counsel, says Fedorowicz, a partner at Robinson Chartier Taraniuk Owoh & Fedorowicz in Toronto. Often, what’s disclosed is no more than a title of a subject area, such as “the informant described the location,” he says. A defence lawyer in these situations has to rely on the Crown to carry out its obligations as a judicial officer and the trial judge to ensure a fair trial.
The decision in Crevier, though, may provide some guidance to the lower courts on those issues. “Hopefully, there will be more consistency” in terms of what information must be provided, says Fedorowicz.