Focus On

SEARCH WARRANTS - Reasonable grounds - Informer’s tip - Setting aside

Tuesday, March 23, 2021 @ 6:22 AM  

Lexis Advance® Quicklaw®
Appeal by the accused from conviction for possession of a controlled substance for the purpose of trafficking and possession of the proceeds of crime. Based on a tip from a confidential informant who recently purchased drugs from the appellant at his apartment, police filed an Information to Obtain (ITO) in support of a search warrant to be executed on the appellant’s apartment. The ITO contained details about the information provided by the informant and the police’s corroboration efforts. During a search of the appellant’s apartment, the police found drug paraphernalia and controlled substances. The appellant challenged the validity of the search warrant pursuant to s. 8 of the Canadian Charter of Rights and Freedoms (Charter). 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 informant’s criminal record and information about past performance, and that there was a mistake in the ITO regarding the location of the appellant’s apartment. 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. The trial judge held that minor omissions in the ITO would not have made a difference in whether the warrant was issued, that the police were acting in good faith, and there were sufficient grounds to believe that narcotics would be located in the place searched. The appellant argued that the Garofoli framework for challenging a search warrant or wiretap authorization breached s. 7 of the Charter because an accused could not challenge the truthfulness and accuracy of the affiant swearing the ITO. To remedy this constitutional flaw, the appellant proposed a new process which included the use of special advocates. In the alternative, the appellant argued the trial judge erred in finding that the warrant to search his residence could have been issued.

HELD: Appeal dismissed. The right of an accused to make full answer and defence had to be viewed in the context of an evidentiary hearing that balanced the rights of the accused against law enforcement’s needs. With this context in mind, a constitutionally appropriate balance was struck when the accused received a judicial summary outlining the nature of the redactions in the ITO prior to the court relying on those redactions. The Garofoli process was designed to achieve the appropriate balance between the accused’s s. 7 Charter rights and police needs to protect confidential informants. The process had built-in safeguards to ensure that the accused had sufficient information to challenge whether the issuing justice could have been satisfied that the statutory conditions for the issuance of the warrant were met. There was nothing in the record to support the appellant’s assertion that the affiant fabricated or exaggerated the evidence. The alternative procedures proposed by the appellant would irreparably damage the existing policy balance and would not meaningfully increase the protection against the provision of false information in the Garofoli process. The information in the ITO in this case was compelling, credible and corroborated. The informant’s tip was compelling. There was also a basis for concluding that the informant was credible. There was meaningful corroboration of the tip. While there might have been issues regarding the informant’s 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.

R. v. Gero, [2021] O.J. No. 351, Ontario Court of Appeal, K.N. Feldman, M.H. Tulloch and C.W. Hourigan JJ.A., January 27, 2021. Digest No. TLD-March222021004