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September 28, 2015

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Page 2 SePTeMBeR 28, 2015 • LaW TIMeS www.lawtimesnews.com NEWS Appeal court clarification Guidance on disclosure requirements for search warrants welcomed BY SHANNON KARI For Law Times T he Ontario Court of Appeal has outlined the gatekeeping role of trial judges when determining the admissibility of evidence obtained through search warrants based on confi- dential informants. The decision issued Sept. 16 in R. v. Crevier sets out what courts should consider when dealing with a so-called Step 6 motion by the Crown in cases where the edited information to obtain disclosed to the defence isn't sufficient to justify the grounds for the warrant. Step 6 is a reference to the procedures set out by the Su- preme Court of Canada in its decision in R. v. Garofoli in 1990 in cases where the courts con- sider edited warrant documents to protect informant privilege. A judicial summary could suf- fice if it ensures that "the ac- cused 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 Ap- peal 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 suf- ficiently aware of the nature of the redacted information so that step six can be employed," wrote Justice Paul Rouleau with Jus- tices Kathryn Feldman and Al- exandra Hoy concurring. The Court of Appeal in- cluded a list of categories of the type of information that should be in the summaries, such as the source of the informant's infor- mation and that person's rela- tionship 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 privi- lege," wrote Rouleau. While the decision in Garofo- li dates back 25 years, the Crown rarely used Step 6 motions in the subsequent years, noted Supe- rior 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 Jus- tice 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 reli- ance on Step 6," says lawyer Mi- chael Dineen, who describes the procedure as a catch-22 situation for defendants. "Sometimes, vir- tually 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 in- formation," says Dineen, a part- ner 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 admis- sibility and not guilt or inno- cence. However, "there are other important but competing inter- ests at play, including the inter- est of maintaining informant privilege," wrote Rouleau. One of the concerns with the Step 6 process is that "it effec- tively immunizes any challenge to the truthfulness," of what's in the information to obtain, says Nathan Gorham, who was de- fence counsel for the appeal in Crevier. Police handlers will usually obtain the statements of infor- mants and then pass them on to another officer who's the affi- ant for a warrant, says Gorham, a partner at Rusonik O'Connor Robbins Ross Gorham & Ange- lini LLP in Toronto. As well, the redacted docu- ments or summaries often "don't include basic informa- tion," says Gorham. Even the specific criminal offences that an informant has been convict- ed of or arrested for aren't often disclosed because the Crown says it could breach informant privilege. Richard Fedorowicz, a To- ronto 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 improp- erly listed one person as a confi- dential informant and were neg- ligent 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 dis- closed is no more than a title of a subject area, such as "the infor- mant described the location," he says. A defence lawyer in these situations has to rely on the Crown to carry out its obliga- tions as a judicial officer and the trial judge to ensure a fair trial. The decision in Crevier, though, may provide some guid- ance to the lower courts on those issues. 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Visit www.carswell.com or call 1-800-387-5164 for a 30-day, no risk evaluation Untitled-3 1 2015-08-20 8:36 AM 'Sometimes, virtually all information related to the informant is redacted,' says Michael Dineen. CORRECTION Cosgrove Associates Inc. should have appeared under the Law Firm Profitability and Management Consultants categories in the legal suppliers guide section that ran in the Sept. 21, 2015, edition of Law Times. The contact information for Cosgrove Associates is: 208 Evans Ave., Suite 217 Toronto, Ont. • M8Z 1J7 Telephone: 416-762-8241 Fax: 416-252-4064 Web site: www.cosgrove-associates.com E-mail: catherine.moffitt@cosgrove-associates.com Check out lawtimesnews.com for insight from our regular online columnists Monica Goyal discusses the latest gadgets and trends in legal technology in Bits & Bytes

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