Reliance on Unredacted and Undisclosed Materials

Criminal law can be differentiated from civil proceedings, where both sides are obligated to provide all relevant evidence, in that there is an inherent asymmetry in the information the Crown possesses. This is particularly important given the burden of proof that is imposed on the Crown.

 

The B.C. Court of Appeal stated in R. v. C. (M.H.),

 [29] …there is a general duty on the part of the Crown to disclose all material it proposes to use at trial and especially all evidence which may assist the accused even if the Crown does not propose to adduce it. If the Crown does not make a timely disclosure of evidence it proposes to tender at trial it may have to suffer an adjournment or worse.

This duty is not absolute though, as the Supreme Court of Canada explained in in R. v. Stinchcombe,

While it is a harsh reality of justice that ultimately any person with relevant evidence must appear to testify, the discretion extends to the timing and manner of disclosure in such circumstances. A discretion must also be exercised with respect to the relevance of information. While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant. The experience to be gained from the civil side of the practice is that counsel, as officers of the court and acting responsibly, can be relied upon not to withhold pertinent information. Transgressions with respect to this duty constitute a very serious breach of legal ethics. The initial obligation to separate “the wheat from the chaff” must therefore rest with Crown counsel. There may also be situations in which early disclosure may impede completion of an investigation. Delayed disclosure on this account is not to be encouraged and should be rare. Completion of the investigation before proceeding with the prosecution of a charge or charges is very much within the control of the Crown. Nevertheless, it is not always possible to predict events which may require an investigation to be re-opened and the Crown must have some discretion to delay disclosure in these circumstances.

This disclosure is essential for the accused to know the case they have to meet, and to make a full answer and defence to any offence charged.

The common law also allows for the Crown to resort to unredacted materials not disclosed to the defence, as long as the defence has been provided a summary. These are known as a judicial summary, and can come up in evidentiary hearings where the reacted information is not used to directly incriminate the accused. The inquiry in these proceedings is the not guilt or innocence of the accused, but the conduct of the state.

The procedure for this was first set out in R. v. Garofoli in 1990, and are therefore known as “Step Six Garfoli” applications, but was rarely used until 2012 in R. v. Rocha. Justice Juriansz pondered in that case why this procedure wasn’t used, stating,

[59] 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 six 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.

Since that time, these have become far more common in warrant review cases, and expanding their use for a warrantless arrest as well. Their use was justified in 2020 in an entrapment hearing in R. v. Hill, on the basis that the officer’s reasonable suspicion depends on confidential source information.

A similar rationale was used in a recent case before the Ontario Court of Appeal, in R. v. Brown. The “Information to Obtain” (“ITO”) in that case was primarily derived from tips of a confidential informant (“CI”), which led to warrants that discovered a handgun in the accused’s car.

The accused brought an application challenging the validity of the warrants, and the Crown resorted to a “Step Six Garfoli” application to provide a judicial summary of the ITO with redacted information to protect the CI’s identity. The basis of the appeal was:

  • (a) the ITO did not meet the criteria set out in R. v. Debot1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140;
  • (b) the judicial summary was inadequate; and
  • (c) the trial judge erred in relying on redacted information that he could not challenge.

The Ontario Court of Appeal dismissed this appeal, noting that a Garfoli application is entitled to deference, unless there is an error of law, misapprehension of evidence, or failure to consider relevant evidence.

The criteria in Debot are often referred to as the “3 c’s,” described as follows,

At least three concerns must be addressed in weighing whether or not the evidence relied on by the police justified a warrantless search.
First, was the information predicting the commission of a criminal offence compelling?
Second, where a “tip” originating from a source outside the police, was that source credible?
Finally, was the information corroborated by police investigation prior to making the decision to conduct the search?
Each factor does not form a separate test. Rather, it is the “totality of the circumstances” that must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
[emphasis added]

Central to this determination was the credibility of the CI. There were numerous omissions and errors made, including an omission of the CI’s criminal record. Shortcomings in this factor, and rather inconclusive findings around the compelling nature of the information, were bolstered by some unusual basis for corroboration,

[52] The appellant submits that the police only corroborated the CI’s information in relation to “neutral” details that would have been known to anyone. Specifically, the police “corroborated”:

  • the colour and make of the appellant’s vehicle – a four-door green Acura;
  • the description of the appellant’s appearance – a black male in his twenties, 5’ 7” tall, medium build; and
  • the fact that the appellant was a drug dealer and “hung out” in the Jane and Finch area of Toronto.

[53] I agree with the respondent that the corroborative effect of some of this information is minimal when viewed in isolation. However, the information cannot be viewed in isolation. When taken together, as it must be, the information of the CI was corroborated by the police’s independent inquiries. A police database check confirmed the appellant’s birth date, and the fact that he owned a four-door green Acura. The ITO also disclosed that the affiant had obtained police “Field Information cards,” indicating that the appellant had been observed on March 23, 2010, February 15, 2011, and April 2, 2011 in the Jane Street area. On one of those occasions, the appellant produced his driver’s licence as identification, and on two of those occasions, he was observed in the Acura registered under his name.
[emphasis added]

What the court effectively has done here is condoned the use of carding, and allowed for it to be used to corroborate otherwise questionable information from a CI in order to obtain a warrant.

As I noted previously in my commentary on Le, treatment of police practices like carding, which themselves promote systemic discrimination, should not be provided curial deference. The justice system in its entirety must work towards removing these practices and assumptions in order for racism to properly be addressed.

Upholding a Garfoli application in situations like this sends the message to law enforcement that the over policing of neighbourhoods with high numbers of racialized residents can bolster their investigative approaches because the courts not only tolerate but even reward such practices.

These discussions are also relevant given the anticipated opening at the Supreme Court of Canada, where many are indicating that the new bilingualism requirements are likely to exclude any minority appointments.

The need for the Court to have a more robust analysis of how race is treated in our justice system has probably never been so dire, but this also requires the appointment of a racialized judge who also has lived experiences with discrimination and harassment by the police. The number of candidates meeting all of those combined criteria becomes very slim indeed.

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