New & Notable: A call to use step 6 of Garofoli

Jason Rocha was investigated in 2008 by the Toronto Police Service for drug and weapon offences. In pursuit of their investigation, the police sought search warrants for Rocha’s restaurant and residence. This issuance of these warrants was almost exclusively based on information provided by a single confidential informant (CI). At trial, the defence challenged whether the warrants should have issued and sought  the exclusion of evidence due to a breach of section 8 of the Charter.

The decision of the Ontario Court of Appeal released on October 24, 2012 highlights the very real difficulties facing trial courts called upon to review the merits of an information to obtain a search warrant where it is based on information from a CI: 2012 ONCA 707.

The concurring decision by Juriansz J places a bold challenge at the feet of Crown counsel to make best use of the vastly underutilised tool available to them:  step 6 from Garofoli.


A search warrant based on a confidential informant

The two informations to obtain the search warrants (ITOs) in this case set out the information provided by the CI. It disclosed in a relatively detailed fashion that the accused and his brother were selling cocaine from their restaurant, a sports bar. In addition to the information regarding activity at the restaurant, the CI told police that most of the cocaine was kept at the residence of Jason Rocha’s brother.

The police sought to confirm some of the information provided by the CI and set these efforts out in the ITOs. The efforts consisted of conducting brief surveillance of the premises and doing some computer checks of the targets of the search regarding prior police contact.

Consistent with typical police practice, the ITO disclosed some of the background of the CI in order to establish his (or her) credibility.

The search warrants for the house and the restaurant issued and were executed by the police. At the house the police found cash, drugs and weapons including a firearm. The search of the restaurant resulted in the seizure of a small amount of cocaine.


The issuance of the warrant challenged at trial

At trial, the defence alleged the search warrants were improperly issued and sought the exclusion of the evidence obtained pursuant to the warrants at both the restaurant and the house. BA Allen J of the Ontario Superior Court reviewed the issuance of the warrants based upon the contents of the ITOs available to her as amplified on the review.

Significantly, and as is almost always the case, the ITOs reviewed by the trial judge were edited to protect the identity of the CI.

The trial judge applied the test enunciated in Debot to the information provided by the CI. She found that the ITO contained very little or no information regarding the existence of drugs in the house and the efforts of the police to corroborate the information from the CI were insufficient. She was also critical of the fact that in attempting to establish the credibility of the CI, the ITO did not disclose whether the CI had a criminal record for dishonesty beyond the offences of perjury or public mischief and did not state the informer’s motivation for providing the information to the police. In the final analysis, she found that the warrant should not have issues for the house.


In relation to the ITO for the restaurant, the trial judge held that while the deficiencies in the ITO regarding the restaurant were less serious, that nonetheless there was not much in it that would compel a reasonable expectation that drugs or drug transactions would be found in the restaurant at the time the warrant was executed. Allen J again had concerns regarding the lack of information either corroborating information provided by the CI in relation to the restaurant or the information establishing the reliability of the CI. Allen J concluded that the section 8 rights of the accused were violated in relation to the restaurant as well.

In considering the question of exclusion of evidence, the judge concluded that to admit the evidence would bring the administration of justice into disrepute and therefore had to be excluded pursuant to section 24(2). She would have admitted the fruits of the evidence from the restaurant.  Following the trial judge’s ruling, the Crown called no further evidence and Rocha was acquitted of all charges.

The Crown appealed against the acquittal on the charges related to the residence.


At the Court of Appeal: The breach

Rosenberg J began his analysis by setting out the test in Debot [para 16]. Rosenberg  J then assessed the evidence in accordance with the well-known three Cs standard: compelling, credible and corroborated.

In relation to whether the CI’s information was credible he wrote:


Contrary to the finding of the trial judge, the information predicting that drugs would be found in the restaurant was compelling. The informer had personally observed 10 to 15 drug transactions in the restaurant. The informer described in detail where the drugs were stored, how they were packaged, how the drugs were obtained by the respondent’s brother for clients of the restaurant and where the clients used the drugs. The information did not take the form of bald conclusory statements or mere rumour or gossip: R. v. Debot, at 1168-69 [para 18].


He had this to say regarding the credibility of the CI:


I agree with the trial judge, that the information concerning the credibility of the informer was weak. I say this primarily because of the awkward wording of the ITO. The critical paragraph in the ITO is this:


The SOURCE in this matter is a registered human asset of the Toronto Police Service for over two years. The information they provided is of such detail, timing and geographic specifics that it goes beyond mere chance and/or coincidence. In some cases the information has been corroborated, by Handlers or investigators forming Reasonable Grounds to Believe. The SOURCE has no convictions for Perjury or Public Mischief. The SOURCE previously provided information to police that has led to persons arrested/charged in addition to the seizure of illegal narcotics and stolen property. The SOURCE acknowledges that they will face criminal charges for making false reports to police regarding information on past, present and future investigations. The SOURCE understands that there [sic] assistance is only “eyes and ears” and they are not to participate in any criminal activity whatsoever as a Confidential Source.


It seems that the affiant is attempting to convey the idea that information from the informer has led to the finding of contraband but this assertion is confused with the assertion that the informer’s information has merely led to the laying of charges. Also the phrase, “In some cases the information has been corroborated, by Handlers or Investigators forming Reasonable Grounds to Believe” is confusing. The fact that police officers have formed reasonable grounds is not the kind of corroboration required to confirm the reliability of a confidential informer. That said, there is some indication of credibility of the informer [paras 19-20].


Finally, regarding the third “c”—corroboration, Rosenberg J stated the following:


I disagree with the trial judge about the independent confirmation of the information in the informer’s tip. The error in the trial judge’s approach is found in this statement:


As I noted earlier, officer Naidoo conceded at the preliminary inquiry that he had not corroborated the information provided in paragraph 19 about the layout of the restaurant or about drug use and drug transactions at the restaurant. Nor is there evidence any other officer corroborated the information about drug transactions at the restaurant, although the ITO states the restaurant was under surveillance before the warrant was executed.


The police will rarely be able to confirm the tip to the extent of having observed commission of the offence and that level of confirmation is not required. In a very short judgment in R. v. Caissey, 2008 SCC 65 (CanLII), [2008] 3 S.C.R. 451. the Supreme Court of Canada said the following:


The dissenting judge advanced the view that only corroboration of some criminal particular of the offence offered the necessary assurance for the issuance of the warrant. This is the question of law that brings the appeal before us. On this issue, we agree with the test adopted by the majority.


In the Alberta Court of Appeal, the majority described the independent confirmation as: “the police independently confirmed a number of details, including the identity of the respondent and his residential address, that no children lived in the home, the name of his roommate, and the description of his vehicle”: R. v. Caissey, 2007 ABCA 380 (CanLII), 2007 ABCA 380 at para. 22. In that case, the informer claimed to have seen a large quantity of drugs in the appellant’s apartment. Thus, the details confirmed by the police tended to show that the informer had actually been in the apartment even though they did not on their own show that the appellant was in possession of drugs.

In this case, the police had confirmed the address and layout of the interior of the restaurant and the involvement of the respondent and his brother in the restaurant. While not as compelling as the independent confirmation in Caissey, this information could not be disregarded.

Considering the totality of circumstances and particularly the compelling nature of the informer’s tip, the ITO concerning the restaurant was sufficient [paras 21-25].


The foregoing paragraphs provide an excellent, straightforward example of the analysis that is to be applied to the information provided by a CI in support of a search warrant. It also helpful that it reinforces the idea that confirmation of the some of the information of the CI is not to be equated with actually observing the commission of the offence.

While Rosenberg J, writing for the panel, disagreed with the conclusions of the trial judge regarding the sufficiency of the CI information for the restaurant he agreed with the conclusion of the trial judge about the sufficiency of the grounds for warrant for the house:


I do, however, agree with the trial judge that the ITO was not sufficient to justify granting a warrant to search the respondent’s home. Unlike the restaurant, the information in the informer’s tip was not compelling. It was a mere conclusory statement that drugs were stored at the house. While it was apparent that the informer had personally observed drug transactions in the restaurant, the source of the informer’s information about the house is completely unknown. Given the weaknesses in the credibility of the informer and independent confirmation, the totality of circumstances could not support granting the warrant [para 26].


At the Court of Appeal: The section 24(2) analysis

One of the most interesting aspects of the Rocha decision is the 24(2) analysis in the context of a search warrant having been sought and obtained but where it was later found by a reviewing court that the warrant should not have issued.

At the beginning of his analysis, Rosenberg J turns to a consideration of what he views as key finding by the trial judge in the s. 24(2) inquiry:


The key finding by the trial judge on the first Grant inquiry was that the breach was not technical or inadvertent “as it was deliberate in the sense it was planned in advance and obtained through the warrant authorization process”. In my view, this was not the correct approach. The touchstone of analysis of this first inquiry is whether admission of the evidence would bring the administration of justice into disrepute by sending a message that the courts “effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of the unlawful conduct”: R. v. Grant, at para. 72.  Police conduct that shows “a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute”: R. v. Grant, at para. 74 [para 27].


Of course, the police are, by obtaining prior judicial authorization for a search, doing exactly the right thing. It cannot fairly be described as an aggravating factor to seek a warrant because it was planned in advance and therefore not technical or inadvertent. Rosenberg J clarified this first branch of the test in the context of a situation where the police took the steps to obtain a warrant:


Applying for and obtaining a search warrant from an independent judicial officer is the antithesis of wilful disregard of Charter rights. The search warrant process is an important means of preventing unjustified searches before they happen. Unless, the applicant for exclusion of evidence can show that the warrant was obtained through use of false or deliberately misleading information, or the drafting of the ITO in some way subverted the warrant process, the obtaining of the warrant generally, as I explain below, tells in favour of admitting the evidence. In this case, the police submitted the fruits of their investigation to a justice of the peace who granted the warrants. I have held that the warrant was properly granted in relation to the restaurant. The warrant should not have been granted in relation to the house, but it must be remembered that an independent judicial officer did authorize the search.

I should not be taken as holding that whenever a search warrant has been granted, the first Grant inquiry favours admission of the evidence. But the approach is not, as held by the trial judge, to hold in favour of exclusion because obtaining a search warrant is a deliberate process. The approach rather should be to look at the ITO and consider first if it is misleading in any way. If so, the court should then consider where it lies on the continuum from the intentional use of false and misleading information at one end to mere inadvertence at the other end…. [paras 28-29].


Given the trial judge’s erroneous approach to the seriousness of the violation inquiry, the appellate court panel was called upon to apply the proper test bearing in mind the factual findings of the trial judge. In the context of the police having appropriately sought to obtain a warrant, the task of the reviewing court was to situate the conduct of the police on a continuum in terms of the care, diligence and skill applied to the warrant drafting process.

After citing R v Morelli, [2010] 1 SCR 253 (SCC) Rosenberg J assessed the failings of the ITO and concluded that the errors and misstatements in the ITO were such that although the police took steps to obtain a warrant, much like the situation in Morelli, the conduct of the police put it at the serious end of the continuum. After considering the other two factors (the impact of the breach on Charter-protected interests of the accused and society’s interest in the adjudication of the case on its merits), the Court concluded that the evidence from the house should be excluded:


In my view, both the seriousness of the violation and impact on the Charter-protected interests favour exclusion. As to the latter, this was a serious intrusion into a domain that carries a very high expectation of privacy. As to the former, the apparent good faith of the police in resorting to the warrant process is undermined by the misleading and careless wording of the ITO.

In R. v. Blake, the court found that the evidence should be admitted, although because of the editing of the ITO there was not sufficient information to sustain the granting the warrant.  In doing so, the court noted the following at para. 33:


Absent any claim of police misconduct or negligence in the obtaining of the initial search warrant, and absent any attempt to go behind the redacted information, it would be inappropriate to proceed on any basis other than that the police conducted themselves in accordance with the applicable legal rules. If there were a taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused's legitimate privacy interests. I can see none. The evidence is admissible under the approach to s. 24(2) set out in Grant.

This case is different. There was at least negligence in the obtaining of the search warrant. Counsel for the respondent did attempt to go behind the redacted information by cross-examining both the affiant and sub-affiant. The Crown was unable to provide a summary of the unedited ITO that could serve as a judicial summary. While there was no impropriety or bad faith, there was a sufficient inattention to constitutional standards to tip the scales in favour of exclusion given the deleterious effect on the respondent’s privacy interests. Notwithstanding the significant public interest in a trial on the merits, I would uphold the trial judge’s decision to exclude the evidence, despite her error in approach to the first Grant inquiry [paras 41-43].


The challenges of defending a warrant based on CI information

The  reality is that defending search warrants in court that are based on CI information is a very difficult task. Prior to disclosure to the defence and ultimately to the court for review, the ITO must be carefully edited to remove any information that could reveal the identity of the CI. Even inadvertent breaches of the CI privilege can have extremely serious consequences. That being said, the consequences of redacting the ITO in the manner that results in a document, that upon review is often significantly less impressive and complete than the one placed before the judge or justice who made the initial determination to issue the warrant. Upon review at trial and here on appeal the respective courts are called upon to assess the care, diligence and good faith of the police who drafted the ITO based upon what must be an incomplete record. 

In the Rocha case, like many challenges to search warrants, the review was not based solely on the written text of the ITO. Rather, the facts contained in the ITO were “amplified” by the testimony of the affiant and sub-affiants. While it appears that the testimony of these officers played a significant role in the decision arrived at by the Court of Appeal, the fact remains that the ITO at trial remained redacted throughout and therefore the record before the court was incomplete and the defence of the search warrant was very likely rendered more difficult.

In what appears to be an area gaining recognition, Juriansz J in a concurring decision raises the alarm and calls upon Crown counsel to use what is known as “step 6” of Garofoli.  Juriansz J articulated the real problem as follows:


However, I wish to expand on an observation Rosenberg J.A. made about a feature of this case. He points out early in his reasons that the version of the ITO considered by the trial judge, and in the record before this court, was redacted by the Crown to protect the identity of the confidential informant. Rosenberg J.A. points out that the Crown did not propose that a judicial summary of the redacted information be provided to the defence.

There are several redactions in the ITO. One redaction is located where one would expect to see set out the basis of the informant's allegation that the drugs sold at the respondent’s restaurant were kept in his home. 

This case is not unique. It is not at all uncommon that the question of whether the warrant should have been issued is decided on the basis of a redacted ITO. Deciding whether the warrant should have been issued on the basis of a redacted ITO has several disadvantages.

Reviewing a judicial decision without the complete record that was before the decision maker seems inimical to the appellate process. That the court reviews an issuing justice's decision to authorize a search without looking at all the information before the justice may make the process of review appear somewhat artificial to the ordinary citizen. The ordinary citizen might think there are two standards for assessing a search warrant: one for deciding whether a search warrant should be issued, and another for deciding, after the fact, whether the search warrant should have been issued.

The process unfairly reflects on the work of the issuing justice and the police. The police may include sufficient credible and reliable information in the ITO and the issuing justice may authorize the warrant on the basis of that information, only to have the reviewing court decide, on the basis of an incomplete ITO, the warrant should not have been issued. Without the redactions for context, the reviewing court may even find some of the statements made by the drafting police officer in the ITO to be groundless or even misleading.

There is reason to believe that, in many cases, the information excised from the ITO may well be the most pertinent.  An informant who can be easily identified by the accused is more likely to be able to provide detailed and reliable information about the accused’s activities…. [paras 46-51].


Juriansz J then called upon Crown counsel to utilize the perhaps meager tool available to them to address this unacceptable situation:


Code J., in thoughtful reasons in R. v. Learning, 2010 ONSC 3816 (CanLII), 2010 ONSC 3816, 258 C.C.C. (3d) 68, at para. 107, remarked that it is unfortunate that the procedure in “step six” in Garofoli, 1990 CanLii 52 (SCC), [1990] 2 S.C.R. 1421,is the only legal mechanism available to resolve the dilemma created by the competing demands of the Crown’s obligation to provide reasonable and probable grounds for a search and its obligation to protect the identity of confidential informants. Yet, he observed, the mechanism “is simply not being tried or tested.”

The procedure based on “step six” in Garofoli permits the Crown to apply to have the reviewing judge consider as much of the excised material as is necessary to support the search warrant, which the trial judge may do upon providing the accused with “a judicial summary of the excised material” to attempt to ensure “the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence”: Garofoli, at p. 1461.

It is difficult to understand why the Crown does not request the court to employ “step six” of Garofoli more frequently. There may be many cases in which the Crown considers the redacted information to be inconsequential, but there must be cases in which the information is significant. In such cases, there can be no advantage to the Crown in defending the issuance of a warrant on less than all the information that supports it. It may be that the Crown believes that any summary of the redacted information whatsoever will risk betraying the confidential informant's identity. Judges too may be reluctant to prepare judicial summaries of the excised material lest they unwittingly betray the identity of the informant.

Perhaps because of such concerns, the Supreme Court of Canada crafted the last element of the “step six” procedure. Where the Crown is dissatisfied with the judicial summary the judge proposes to provide to the accused, it can decline to rely on the excised information to support the search warrant.

The Crown in this case did not request the trial judge to consider the excised information. And this court has found there was insufficient information in the ITO to support the issuance of the warrant to search the respondent's home, without considering all the information upon which the warrant was issued in the first place. 

I have added these concurring reasons to highlight the dilemma raised in such cases and to encourage attention being paid to it in future cases. I appreciate there may be practical questions about the procedure to be followed in applying step 6 of Garofoli and about the content of the judicial summary. However, only resort to the procedure will lead to the development of jurisprudence to resolve those questions [paras 54-59].

Even prior to Juriansz J’s comments encouraging use of “step 6”, greater openness has being shown by Crown prosecutors to consider using “step 6” to more fully defend search warrants and wiretap authorizations. Good examples can be seen in R v Brown, 2011 ONSC 6223 and R v Sahid, 2011 ONSC 979. In spite of the significant uncertainties in the law flowing from a lack of guiding jurisprudence in the area and the practical difficulties of using “step 6” , Juriansz J’s comments will surely accelerate this nascent trend.