R. v. [REDACTED]
Ontario Superior Court of Justice
Heard: March 4, 2016.
Oral judgment: March 4, 2016.
 O.J. No. [REDACTED]
Between Her Majesty the Queen, and [REDACTED]
Criminal law — Procedure — Crown's duties — Disclosure — Application by accused for additional disclosure allowed — Accused sought disclosure of information related to two ITOs used in unsuccessful search warrant applications — Parties resolved application subject to vetting and redaction to protect confidential informant's identity — Material sought was relevant to reliability and credibility of affiant on successful application — Use of information to fact check or challenge credibility was legitimate — Use of information in context of a challenge to admissibility of evidence did not narrow Crown's disclosure obligation.
[REDACTED], Ms., Counsel for the Crown.
[REDACTED], Esq., Counsel for the Accused.
1 Yes. This Defence application originally for a significant amount of additional disclosure has now largely resolved, save for two areas. Whether the Crown has an obligation to disclose, subject to vetting and redaction to protect the identity of the confidential informant, the notes of the handler, and the two Informations to Obtain used on the two unsuccessful attempts to obtain a search warrant, prior to the warrant ultimately issued and executed.
2 I commend Counsel for cooperating to resolve the balance of the issues originally raised in the application.
3 In my view, the request for disclosure of the foregoing documents is proper. And the Crown obligation to make disclosure is governed by the principle in Stinchcombe,  3 S.C.R. 326 that all relevant information be disclosed. See paragraph 21.
4 In my view, the material sought is relevant. The notes of the handler insofar as they relate to the offences with which the accused is charged, stand in no different position for disclosure purposes than the notes of any police officer receiving information from a member of the public who is not a confidential informant.
5 If the notes pertain to the offences, they are relevant. Because these notes pertain to interaction with and information received from a confidential informant privilege is engaged and the notes will be subject to vetting and redaction to protect the identity of the informant. This did not, however, diminish the relevance of the notes. The two Informations to Obtain used on the two prior attempts to have a search warrant issued are, in my view, relevant. They were made by the same affiant pertaining to the same subject matter. They are therefore prior sworn statements of the affiant upon the same issues placed ex parte before the Court on the successful search warrant application, and are therefore potentially pertinent to the reliability or credibility of the affiant on successful application. On a sub-facial challenge of the search warrant, the reliability, credibility, and bonafides of the affiant can be engaged.
6 In my view, the Informations to Obtain are disclosable. Again, subject to vetting, either under the general obligation to disclose relevant information and material, or as a result of the Defence having shown their pertinence to the Garofoli,  2 S.C.R. 1421 Application.
7 In this respect, Defence has drawn to the Court's attention two instances where the narrative concerning activity at the barbershop set out in the Information to Obtain is not supported by the surveillance reports, nor by the evidence of the surveillance officers at the preliminary inquiry.
8 I do not say that it was a prerequisite to disclosure of the two Informations to Obtain for the Defence to have shown that there is, on the face of the existing material, reason to believe that there has been mischaracterization of the surveillance in the successful ITO. It is apparent that there is a basis for a sub-facial challenge. And the prior sworn statements are therefore pertinent.
9 It has been suggested by the Crown, relying on Regina v. Blake, 2015 ONSC 6008, that there is no obligation to disclose the ITOs used in the unsuccessful search warrant applications. In Blake, the earlier application was successful, but the search warrant was for a different address and the search warrant was not executed. It is not apparent from the reasons whether the affiants were one and the same.
10 More significantly, however, it appears to me, with respect, that the decision appears to hold that the right to disclosure is circumscribed by the Defence motive in seeking it. See paragraph 27.
11 In this, I am not in agreement. If the test of relevance is met, it matters not whether the Defence intends to use the material to fact check, or indeed to challenge credibility. These are legitimate uses of the information disclosed.
12 Nor do I accede to the suggestion that because the request for disclosure arises in the context of a challenge to the admissibility of evidence, that the ambit of the Crown's disclosure obligation is narrowed. Cases may arise where what the defendant seeks to have disclosed does not, under the Stinchcombe criterion, cross the threshold of relevance, but is nevertheless sought on the basis that a likely relevance to the particular application can be shown. It is there that the onus shifts.
13 But while the first test of relevance is met, as I find is the case at bar, the disclosure obligation is engaged without more. I have made the order yesterday. And Madam Crown, may I ask whether you were successful in having the documents retrieved from Old City Hall?
14 MS. [REDACTED]: Yes, I was, Your Honour.
15 THE COURT: Very good. And you have done the redaction?
16 MS. [REDACTED]: I'm working on them.
17 THE COURT: Or have you had time to do that?
18 MS. [REDACTED]: I've been working on them.
19 THE COURT: All right. All right, let me ask again what, if anything, are Counsel ready to deal with at this point?
20 MS. [REDACTED]: Well, there's two ways of going about it. I can continue vetting the other - the earlier ITOs. Or we could just take a shorter recess, I can - one of the things I did yesterday afternoon was take a look at the - the ITO on the application that was successful, the November 18th...
21 THE COURT: Yes.
22 MS. [REDACTED]: ...warrant. And I want to just review it one more time before I apply the final redactions to make sure I haven't missed anything; a fresh set of eyes. And double check the judicial summaries and propose judicial summaries corresponds with it.
23 We could then perhaps look at the vets with respect to that particular one. Because then it may assist in terms of the vets on the earlier applications as well. So that's one way of approaching it.
24 Or I could simply continue redacting on the earlier authorizations that were not successful and provide that all to my friend and then we can start with all three.
25 I'm not sure which is more efficient. I think the - the fir - the earlier - the first one is because then I can simply make sure the redactions are consistent with the earlier ITOs.
26 THE COURT: Mr. [REDACTED], any submissions as to how we should proceed this morning?
27 MR. [REDACTED]: Subject of course to Your Honour, my thoughts are, the more efficient way to do it is to get the vetting done on everything. Get it to us. It may remove issues that are down the road. It may add to them. I don't know. But given the amount of the disclosure and the nature of it, before we start talking about warrant number three, I believe I should see one and two and have a chance to consider it and go over it with Mr. [REDACTED], who hasn't seen any of it and doesn't know the contents.
28 And then there are the handler's notes and the - the will-states with respect to - or notes with respect to the meetings of surveillance.
29 So, I - I think that while it's not necessarily ideal, the better way to do it is to forge ahead in getting the material to us so that we can then pick up from there, as opposed to starting with other submissions. Disclosure is ongoing.
30 THE COURT: Yes.
31 MR. [REDACTED]: And potentially then we have to re-visit things. So that - those are my thoughts.
32 THE COURT: Well, all right. I agree with that. I am going to give Crown then, a chance to continue and complete the vetting, present the disclosure to Mr. [REDACTED], and we will take it from there. You may or may not have a request for the Court to re-visit the vetting. You will have to take a look at it...
33 MR. [REDACTED]: That's right.
34 THE COURT: ...before you make that decision. How long would you like, Ms. [REDACTED]?
35 MS. [REDACTED]: I'm going to suggest, perhaps, Your Honour, if we came back at 12:30, I can apprise the Court as to whether it's all complete and I can hand everything over?
36 THE COURT: Very well. We will adjourn then until 12:30.
37 MS. [REDACTED]: All right. Thank you.
38 THE COURT: Thank you.
39 MS. [REDACTED]: Oh, I should add, Your Honour, I'm sorry.
40 THE COURT: Yes.
41 MS. [REDACTED]: I always do this changing gears. You're just about to rise and then I think of something that crosses my mind. When we come back, I also - I can bring the un-redacted packages as well for Your Honour.
42 THE COURT: Yes.
43 MS. [REDACTED]: If you would like, at that point in time.
44 THE COURT: All right.
45 MS. [REDACTED]: Because that may be of assistance depending on where we go.
46 THE COURT: Yes.
47 MS. [REDACTED]: For you to have the opportunity to compare.
48 THE COURT: Good. Thank you.
49 MS. [REDACTED]: Okay.