Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Emmanuel Farrugia
Before: Justice Robert Kelly
Ruling on Application for Leave to Cross-examine in Search Warrant Review Hearing
Heard: April 10 and 12, 2012
Released: April 30, 2012
Counsel:
Mr. S. Aujla — for the Crown
Mr. L. Adler — for the defendant Emmanuel Farrugia
KELLY J.:
1:0 OVERVIEW
1Emmanuel Farrugia is charged with four drug-related offences arising out of the execution of three search warrants on January 30, 2011 – one on his residence and two on industrial units.
2Shortly after the police entered Mr. Farrugia's home under warrant, he arrived in a vehicle. The police arrested him and searched his person and the vehicle without warrant.
3The search warrants were based on Informations to Obtain ("ITOs") that were identical except for the items sought and offences alleged. More particularly, the grounds for belief in Appendices C and D were the same in each ITO. Since those grounds relied heavily on information from a confidential informer ("CI"), the issuing justice ordered that the ITOs be sealed.
4After the charges, the sealing order was varied and the Crown vetted the ITOs to protect the CI's identity and then disclosed an edited copy of the documents to the defence.
5Mr. Farrugia has applied under the Charter for a stay of proceedings or exclusion of evidence, contending that:
the warranted seizures of the dwelling house and industrial units infringed his s. 8 right to be secure against unreasonable search or seizure;
his arrest violated his s. 9 right not to be arbitrarily detained; and
the warrantless seizures from his person and the vehicle infringed s. 8.
6The Crown has conceded that:
the seizure of evidence from the vehicle breached s. 8; and
as part of its onus to demonstrate the reasonableness of the warrantless seizure of evidence from Mr. Farrugia's person, the prosecution has the burden of establishing reasonable grounds for the arrest.
7Mr. Farrugia attacks the "facial validity" of the search warrants and also seeks to challenge their "sub-facial validity": R. v. Araujo, 2000 SCC 65 at paras. 19, 36, 40, 50-54. To that end, the defence has sought leave to cross-examine five police officers in relation to the ITOs: Constables Hill, Shadlock, Robinson, Robitaille, and Langdon. For convenience, I will occasionally refer to Constable Hill as the "affiant" and the other officers as "sub-affiants."
8The Crown intends to call Constables Hill, Shadlock, Robinson (the exhibits officer), and Dyson-Smith (the arresting officer) at trial.
9In making its request for leave to cross-examine, the defence relied on:
the edited ITOs that appear in the Application Record at tabs 3, 4, and 5; and
the affidavit of Mr. Adler's assistant which summarizes some information received in disclosure.
10The proceedings began on April 10, 2012. By the end of that day, the Crown had conceded that, based on the ITOs as edited to protect the CI's identity, none of the three search warrants could meet the test applicable on a review hearing. The prosecution acknowledged, in other words, that the ITOs, as originally vetted, do not provide a basis on which a justice could have issued the warrants: R. v. Garofoli (1991), 60 C.C.C. (3d) 161 at pages 187-89 (S.C.C.), Araujo at paras. 51-54, R. v. Blake, 2010 ONCA 1 at para. 18, R. v. McDonald, 2012 ONCA 244 at paras. 9-10.
11In light of this concession, the Crown took the position that the court should follow the procedure that has come to be known as "step 6 in Garofoli." Mr. Aujla submitted that when I assess the validity of the search warrants, I should consider the original unedited ITOs and that the defence should be apprised of the nature of the redacted information through "judicial summaries": see Garofoli at page 195. In support of this submission, Mr. Aujla cited a number of recent Ontario authorities which are collected at pages 26 to 30 of his Memorandum of Law: see, for example, Blake at paras. 15-17, R. v. Learning, 2010 ONSC 3816 at paras. 96-108, R. v. Sahid, 2011 ONSC 979 at paras. 10-19, 28-32. Mr. Adler raised no objection to the use of the "step 6 procedure."
12Crown counsel provided a draft "judicial summary" for my review. After some discussion, we settled on a version of the summary document that was given to the defence. I then heard further submissions from both counsel on the issue of leave to cross-examine.
13Mr. Adler's proposed areas of cross-examination appear at paragraphs 40 to 41 of his factum and he expanded on his request during in-court submissions. Mr. Aujla's position on the various areas is set out at paragraph 11 of his written response and he too elaborated in oral argument.
14By the end of our dialogue over two days, Mr. Aujla had agreed that Mr. Adler should be allowed to cross-examine Constable Hill in the following areas:
whether or not he received any judicial assistance or input in connection with his drafting of the ITOs [see Applicant's Factum, para. 41, item vii];
whether or not he provided any additional information to the issuing justice in connection with the ITOs [see Applicant's Factum, para. 41, item vii];
his grounds for seeking a telewarrant as opposed to applying in person before a justice [Applicant's Factum, para. 41, item iv];
whether or not Constable Hill smelled marijuana during surveillance at the industrial units on January 28, 2011; and
how Constable Hill came to receive the information in Appendix D about the CI's track record of providing information to the police (Mr. Aujla agreed that if Constable Langdon was the source of the track record information, then defence counsel could question that officer about how he came to receive the information).
15Crown counsel also conceded that the court should excise Constable Hill's assertion about employment at paragraph 23 of the ITO since it was unsourced.
16With respect to Constable Shadlock, the prosecutor acknowledged that the defence should be allowed to cross-examine him about whether he was trespassing when he smelled marijuana during surveillance at the industrial units on January 28 and 30, 2011.
2:0 LEGAL PRINCIPLES
17In their written materials, counsel have set out the principles governing a request for leave to cross-examine the affiant and sub-affiants on a wiretap authorization or search warrant in the context of a review hearing. I cannot improve on the detailed and helpful summaries of the law prepared by both Mr. Aujla and Mr. Adler. I will simply highlight, in brief terms, a few points:
There is no right to cross-examine the affiant; leave must be granted;
To grant leave, the trial judge must be satisfied that cross-examination is necessary to enable the accused to make full answer and defence. The applicant must show a basis for the view that cross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions to the warrant, such as the requisite reasonable grounds for belief: Garofoli at page 198. Put another way, the defence must show a reasonable likelihood that cross-examination will elicit testimony of probative value to the issue for consideration by the reviewing judge: R. v. Pires; R. v. Lising, 2005 SCC 66 at paras. 3, 35, 40;
In approaching a request for leave, the court must keep in mind that a search warrant review hearing is not a trial; it is an evidentiary inquiry aimed at determining the admissibility of relevant evidence obtained under a presumptively valid court order. In deciding the issue of leave, the court must remain strictly focused on the test applicable on a search warrant review – whether there is any basis on which the issuing justice could have been satisfied that the statutory prerequisites for issuance existed. If the requested cross-examination is unlikely to assist on this question, it should not be permitted. But if the proposed questioning falls within the narrow confines of this review, the applicant is not required to go further and demonstrate that the cross-examination will be successful in discrediting one or more of the relevant statutory preconditions for the warrant. A reasonable likelihood that it will assist the court in determining a material issue is all the defence must show: Pires; Lising at paras. 30-31, 40;
Although the likely effect of the proposed cross-examination must be assessed in light of the ITO as a whole, the threshold test for leave is separate from the ultimate question of whether the warrant is valid. The trial judge cannot deny leave to cross-examine simply on the basis that other parts of the ITO would support the warrant. The focus, rather, must be on the likely effect of the requested cross-examination and whether there is a reasonable likelihood it will undermine the basis of the order: Pires; Lising at para. 69;
The insufficiency of the ITO, on its face, may suffice to show a basis for cross-examination: Pires; Lising at para. 44. As Hill J. explained in R. v. Pham, [2009] O.J. No. 4296 at para. 33 (S.C.J.):
[A]n applicant, in order to make a preliminary showing for leave to cross-examine respecting subject matter which will impact on the admissibility of evidence, may not require as robust a record as contradictory or other evidence where the face of the affidavit itself establishes a reasonable likelihood that the affiant has withheld source facts, or advanced bald conclusory inferences or apparently illogical factual assertions. In other words, an applicant, in defining its threshold case for leave may point to factors which equally support a facial invalidity submission in the absence of cross-examination.
3:0 ANALYSIS
18I will first address the request for leave to cross-examine Constable Hill.
19By way of context, I emphasize the following:
The Crown has conceded that the search warrants are invalid based on the ITO's as originally edited to protect the CI's identity;
The Crown has asked me to consider the original unedited ITOs in assessing the validity of the search warrants. Crown Counsel and I have seen the unedited ITOs. The defence has not;
The defence received a "judicial summary" of the information redacted from the ITOs. This document was finalized after in-court discussion between the Crown and me. Crown Counsel and I have seen the first two draft versions of the summary document. The defence has not;
The Crown has acknowledged that:
(a) the defence should be allowed to cross-examine Constable Hill in a number of areas,
(b) one of this officer's assertions at paragraph 23 of the ITO should be excised,
(c) the source of the information in Appendix D about the CI's track record is unclear, and
(d) the defence should be permitted to question Constable Shadlock about whether he was trespassing when he smelled marijuana at the industrial units;
The Crown has conceded that it bears the burden of establishing reasonable grounds for Mr. Farrugia's arrest as part of its onus to demonstrate the reasonableness of the warrantless seizure of evidence from his person; and
The Crown intends to call Constables Hill, Shadlock, and Robinson at trial.
20In seeking to challenge the search warrants, the defence is at a disadvantage. The Crown's position is that I should uphold the orders on the basis of information in the ITOs that the defence has not seen and that has been summarized during a process in which the defence could not participate. The reality is that defence remains in the dark about some of the information on which the prosecution will rely in defending these warrants. In these circumstances, I am concerned that undue curtailment of cross-examination of the affiant risks undermining trial fairness. In my view, it is necessary to allow the defence some latitude in questioning Constable Hill on the ITOs in order to ensure that Mr. Farrugia is able to make full answer and defence.
21In addition, the Crown has agreed that the defence should be permitted to cross-examine Constable Hill in some but not all of the proposed areas. While the case law requires that the court impose reasonable limits on cross-examination in order to ensure that it is reasonably likely to elicit evidence relevant to a material issue, it is difficult to draw up a list of precisely defined permissible areas of questioning before the questioning has even begun. Even if this could be accomplished, it may be even more difficult to decide whether a proposed line of questioning does or does not fall within a pre-defined area. I envisage the court becoming embroiled in a series of debates about whether defence counsel is trying to cross one of these preordained lines. This would hardly advance the public interest in efficient use of court time.
22Any cross-examination has a flow. Often, one series of questions leads to another. The cross-examiner must be given a reasonable degree of freedom to do his or her job. In the circumstances of this case, it would, in my view, be neither feasible nor fair to try and settle at the outset on a precise list of areas and questions that defence counsel is permitted to cover with the affiant.
23I have also taken into account that there are, on the face of the ITO, some "drafting issues" which lend further support to the request to cross-examine Constable Hill. I will give three examples:
Paragraph 23 of the ITO is, at the very least, unsourced. In fact, the Crown has conceded that part of the paragraph should be excised;
Given the somewhat unusual opening words of Appendix D – "Constable Michael Langdon #2727 can advise…" – it is unclear how Constable Hill came to include the confidential information in the ITO. In addition, some of the language used in the appendix raises questions – for example"an industrial grow labs" or "a industrial grow labs"; or "the confidential informant(s)", when seen in light of the fact that the informer is referred to as "informant A" in Appendix D and "CI #1" in Appendix C;
The structure and wording of paragraph 15 leaves at least some ambiguity about which information is said to have been received from the CI and which information is said to have been confirmed through police investigation.
24Another relevant consideration is the fact that, as part of its burden to establish the reasonableness of the warrantless search of Mr. Farrugia's person, the Crown is required to show reasonable grounds for the arrest. The prosecution will, in other words, have to call evidence to demonstrate the existence of reasonable grounds and the defence will be entitled to challenge that evidence. Although I do not know how the evidence will unfold, it may be that in questioning the grounds for the arrest as part of its attack on the warrantless seizure from Mr. Farrugia's person, the defence will be able to cover, as of right, at least some of the ground it seeks to cover in its application for leave to cross-examine on the ITOs as part of its challenge to the warranted seizures.
25As the court explained in Pires; Lising, at paragraph 3, the threshold test for leave is grounded in two basic principles of evidence: relevance and materiality. It is also borne out of concerns about the prolixity of proceedings and, in many cases, the need to protect the identity of confidential informers. In the particular circumstances of this case – where the Crown has applied for resort to "step 6 of Garofoli"; where the Crown has agreed to cross-examination of the affiant in a number of areas; where the Crown bears the burden to establish reasonable grounds for the arrest in order to uphold a warrantless seizure; and where the Crown intends to call Constables Hill, Shadlock, and Robinson at trial in any event – I do not see "prolongation of proceedings" concerns as driving the analysis. If prolixity becomes an issue, I can address it as part of my obligation to ensure that the cross-examination remains properly focused and likely to elicit testimony relevant to a material issue.
26Concerns about informer privilege, however, are very real in this case. I am obligated to prohibit any cross-examination that risks revealing information that could lead to discovery of the CI's identity. I will not permit questions that carry that risk.
27For these reasons, I grant the defence leave to cross-examine Constable Hill in all of the areas set out at paragraph 41 of the Applicant's Factum as expanded during oral submissions. I am concerned, however, that questioning in the area captured in item 41(a)(i) at page 16 of the factum (relating to the CI's reliability) may raise informer privilege concerns, so cross-examination in this area may well be restricted. Based on the information before me at this stage, however, I will permit Mr. Adler to question Constable Hill about:
the source of the information in Appendix D concerning the CI's track record of providing information to the police – in other words, how Constable Hill came to receive this information and include it in the ITO; and
whether or not Constable Hill received, in addition to the information he included in Appendix D, any other information about the CI's reliability – but not the content of that information.
28I turn to the sub-affiants.
29The Crown agrees that the defence should be able to cross-examine Constable Shadlock about whether he was trespassing when he smelled marijuana during surveillance at the industrial units. As I understood Mr. Aujla's submissions, however, he opposes questioning about the circumstances under which Constable Shadlock detected the odour of marijuana on the basis that, on the search warrant review hearing, the issue will be the reasonableness of Constable Hill's belief that his colleague smelled marijuana, not the ultimate reliability of the observation made by Constable Shadlock.
30While Mr. Aujla's point has merit, I am satisfied that Mr. Adler should be permitted to question Constable Shadlock about the circumstances under which he made his olfactory observations, given:
the importance of the affiant's belief that his colleague smelled marijuana to the validity of the warrants;
the fact that it may be difficult to sever cross-examination on the trespass issue from questions about the circumstances in which the sub-affiant detected an odour of marijuana; and
the fact that questioning in this area is not likely to prolong unduly the cross-examination of Constable Shadlock, who, again, the prosecution intends to call as a trial witness.
31The applicant also seeks leave to cross-examine Constables Robinson and Robitaille about their observations during surveillance and, in particular, the circumstances surrounding Constable Shadlock's detection of an odour of marijuana at the industrial units. On the information before me, the defence has not shown a basis for cross-examination of these sub-affiants. To repeat Mr. Aujla's submission, the issue on the warrant review is whether it was reasonable for Constable Hill to have relied on the information from his colleague, Constable Shadlock, that he smelled marijuana at the industrial units. I am not satisfied that the proposed questioning of Constables Robitaille and Robinson is likely to yield testimony relevant to this issue. I deny leave to cross-examine these two officers.
32The request to cross-examine Constable Langdon arises in part because of the structure and wording of Appendix D, the opening words of which I repeat: "Constable Langdon #2727 can advise that the confidential informant(s) has provided information in the past …" I also make the observation that the font in which Appendix D is typed is obviously different than that used for Appendix C.
33As previously mentioned, the source of the information in Appendix D about the reliability of the CI is not clear. Presumably, Constable Hill received this information in some form from Constable Langdon. Assuming that to be the case, it is unclear where Constable Langdon, who has been with the Peel Regional Police since 2003, received the information about the reliability of the CI, who has apparently been providing "information to police" since 1991.
34As stated earlier, the defence may cross-examine Constable Hill about the source of the information included in Appendix D. If that source is Constable Langdon, then the defence may question this officer about the source of his information about the CI's track record of providing reliable information to the police, subject of course to informer privilege restrictions.
35I close with two points. First, while it is possible that some of the testimony elicited during cross-examination will ultimately have little bearing on the assessment of the validity of the search warrants under the Garofoli test for review, I am nevertheless satisfied, in the particular context and circumstances of this case, that reasonable latitude in the cross-examination of Constable Hill as well as some cross-examination of Constable Shadlock are necessary to enable Mr. Farrugia to make full answer and defence.
36Second, issues of informer privilege remain very much alive. As the cross-examinations proceed, I will prohibit questions that risk disclosing the CI's identity.
Released: April 30, 2012
Justice Robert Kelly