Court File and Parties

Ontario Court of Justice

Date: November 4, 2020

Court File No.: Central East Region: Oshawa Court: File No. 19-A37430

Between:

Her Majesty the Queen – Respondent

— And —

Matthew Cecchetto, Dylan Paquette and Carly Almon – Applicants

Before: Justice Peter C. West

Heard: October 19, 2020

Reasons for Judgment Released: November 4, 2020

Counsel

• Mr. G. Raven – counsel for the Crown
• Mr. C. Amodeo – counsel for the accused Matthew Cecchetto
• Mr. M. Jacula – counsel for the accused Dylan Paquette
• Mr. P. Affleck – counsel for the accused Carly Almon

Judgment

WEST J.

Introduction

[1] The Applicants are charged with:

1. possession of fentanyl for the purpose of trafficking;
2. possession of methamphetamine for the purpose of trafficking;
3. possession of cocaine for the purpose of trafficking; and
4. possession of oxycontin.

[2] An application has been brought by Matthew Cecchetto on October 19, 2020, to cross-examine the sub-affiants of a search warrant to search Room 122 of the Travel Lodge Motel, as part of a Garofoli application attacking the issuing of a search warrant to search the above-noted motel room 122. Dylan Paquette joined in this application, but Carly Almon did not, although she and her counsel were present during the application.

[3] No evidence by way of affidavits, either from a representative of Mr. Cecchetto's counsel or from Mr. Cecchetto were filed with the application until the morning the application was to be heard, when a brief affidavit by Matthew Cecchetto was filed. Further, the Information to Obtain (ITO) the Search Warrant obtained by telewarrant was also not provided until October 19, 2020 when the matter was called in court.

[4] Mr. Amodeo filed an application pursuant to Form 1 pursuant to the Criminal Rules of the Ontario Court of Justice, which was filed on September 30, 2020, alleging that the sub-affiants, P.C. Roffey and P.C. Wilson, made assertions in their police arrest reports that were false and deliberately misleading. I was not provided through an affidavit of a student or clerk in defence counsel's office or by the Crown, with the police arrest reports and/or notes of these two officers. As a result I am only aware of what was contained in the two police officers' reports and notes from what counsel have put in their factums and what was put into the ITO by the affiant, D.C. Naccarato.

[5] Mr. Cecchetto testified in-chief on the application and was cross-examined by the Crown. No further evidence was led by any other party to this application. I heard submissions from Mr. Amodeo and Mr. Jacula for the defence and from the Crown, Mr. Raven. I reserved my ruling on the application by Mr. Cecchetto to cross-examine the sub-affiants, as part of the Garofoli application, and advised counsel I would provide written reasons no later than November 20, 2020. The matter is returning to court on November 23, 2020 to deal with the Garofoli application.

Factual Circumstances Leading to a Request for a Telewarrant

Based on the facts disclosed in the Factums filed by counsel and the Information to Obtain (ITO) affidavit of D.C. Naccarato:

[6] On September 9, 2019, P.C. Roffey and P.C. Wilson were tasked with investigating Dylan Paquette in respect of an allegation that he assaulted a woman on September 4, 2019, which resulted in her suffering a broken jaw. Based on the statement of the complainant, the officers had reasonable grounds to arrest Mr. Paquette for assault causing bodily harm, simple assault and uttering threats to an animal. The police had information that Mr. Paquette was known to stay in various motels in the area of the Whitby/Oshawa border.

[7] The drug charges arose as a result of P.C. Roffey and P.C. Wilson attending the Travel Lodge Motel on September 9, 2019, located at 940 Champlain Avenue, Oshawa to determine if Dylan Paquette was renting a room at that motel. Both officers were in uniform. The officers were advised by the clerk on duty that Dylan Paquette had rented Room 122 the previous day.

[8] When P.C. Roffey and P.C. Wilson attended Room 122 to see if Dylan Paquette could be located, P.C. Roffey knocked repeatedly on the door to the room from the 1st Floor hallway but no one responded. Other officers had been requested to attend the Motel as the officers had been advised Mr. Paquette could potentially be armed with a firearm. P.C. Wilson went to the patio door of the motel unit and observed the curtain was drawn. P.C. Wilson could hear P.C. Roffey knocking on the front door. She observed a male person slide the curtains by the patio door open and she believed he might have been attempting to lock the patio door. She was in uniform and she knocked on the patio door and requested the male person to open the door, which he did.

[9] P.C. Wilson advised the male person who opened the patio door that the police were looking for Dylan Paquette and the male person advised her Dylan Paquette was not present, as he had left earlier. The male person who answered and opened the patio door verbally identified himself to P.C. Wilson as Matthew Cecchetto. P.C. Wilson observed someone sleeping on one of the two beds in the room and asked who that person was. Mr. Cecchetto advised this person was a female and not Dylan Paquette. According to P.C. Wilson, Mr. Cecchetto then told her she could come into the room and see for herself that Mr. Paquette was not present.

[10] Both the Crown's factum and the ITO indicated that P.C. Wilson, after being invited into the motel room by Mr. Cecchetto, "observed, in plain view a number of items that appeared to be drugs and drug paraphernalia within the motel room" (Crown's factum, paragraph 9) and in the ITO, paragraph 8 and 9, "PC Wilson observed equipment that she believed was indicative of drug possession and possibly production." The defence factum alleges (paragraph 7(b)) "after she [P.C. Wilson] entered, she observed drugs and drug paraphernalia in plain view." The ITO at paragraph 15, states, "Upon entry of the room, Cst. Wilson observed the following items in plain view on the desk:

a) Black plate with a white powder believed to be cocaine.

b) A bent silver prepaid Visa card with white powder residue believed to be cocaine.

c) White powder scattered throughout the top of the desk believed to be cocaine.

d) A black plastic basket with what appeared to contain cell phones and digital pay scales.

e) Small clear plastic dime baggy.

f) A small metal measuring cup with handle with white powder residue believed to be cocaine.

[11] P.C. Wilson also noted a topless green bin in front of the television that was on a dresser, which contained the following items:

a) Duct tape,

b) A metal cooking pot,

c) A glass measuring cup with white powder residue,

d) 2 butane canisters

[12] Mr. Cecchetto and the female person, Carly Almon, who had been sleeping on one of the beds, were arrested for possession of controlled substances. P.C. Roffey contacted a superior officer in the Criminal Investigative Branch while at the motel room and he received instructions to exit the motel room as a judicial authorization would be sought to search and seize any further evidence. An ITO was prepared by D.C. Naccarato seeking a search warrant to search Room 122 at the Travel Lodge Motel. Uniformed police officers remained outside Room 122 maintaining continuity and control of the motel room.

[13] Mr. Cecchetto testified on the defence application to cross-examine the sub-affiants, as part of the Garofoli application challenging the issuance of the search warrant issued to search Room 122 of the Travel Lodge Motel.

Mr. Cecchetto's Testimony

[14] He testified he had arrived at Room 122 around 10 or 11 pm the night before September 9, 2019, and he was staying with his friend, Dylan Paquette. The night before he hung out in the room with Dylan and Carly Almon. They watched TV and hung out as most people do. At one point he was sleeping on one of the beds, but he could not recall what time he fell asleep. He was on the bed closest to the patio door. He was awakened by knocking on the door. He opened the door and saw a police officer. She asked if he could open the front door of the motel room. He said, "yes man." This was the only thing she said to him. He went to the front door of the motel room and opened the door.

[15] Mr. Cecchetto testified he opened the patio door no more than a foot. He did not give the police officer permission to come into the room. The front door was at least 10-12 feet from the patio door. Someone was knocking on that door. When he opened the front door he was greeted by 5 or 6 police officers. He did not know which of the officers spoke to him. This officer asked if Dylan Paquette was there. He said "No, he was not." Mr. Cecchetto testified he noticed after a couple of minutes the female officer had made her way into the motel room from the patio door. He imagined she had to push the patio door open to get into the room.

[16] He did not want her to come into the room. He did not give anyone permission to enter the room. He was a guest in the motel room. He believed he had a right to determine who could come into the room, as he was in the room and they were not.

[17] He could not say what time the police were knocking on the doors. He thought he was arrested around 11 am. He could not disagree the officers were present at the doors at 10 am. He was awakened by the door knock. He could agree they were knocking for some time because it was loud. He opened the patio door after a minute or two of knocking. When he heard a knock on the door his first instinct is not to jump up and open the door. He agreed he had been using substances, alcohol and drugs, the night before. He did not know when he fell asleep. Eight hours before waking up he was using cocaine. He agreed this can impair a person's judgment. It can impair a person's memory.

[18] When he went to open the front door he looked around the room. Only himself, Paquette and Carly were in room the night before, Paquette was not there when the police were knocking on the door. He said hello to the female police officer when he opened the patio door. She told him to answer the front door. He did not recall if she did or didn't ask him if Dylan Paquette was in room.

[19] Mr. Cecchetto agreed the curtains on the patio door were drawn and were obstructing the view of the inside of the motel room. Mr. Cecchetto had to move them aside to open the patio door when the police officer was knocking on the door. He testified he only moved the curtain slightly.

[20] Mr. Cecchetto could not recall if he told P.C. Wilson that Paquette was not in the room. Mr. Cecchetto testified the female officer did not ask him if the person sleeping on the bed was Mr. Paquette. He knows that did not happen.

[21] Mr. Cecchetto then testified the officer might have thrown out that at the start of their conversation, about whether the person in bed was Mr. Paquette. He only remembered her distinctly asking him to go to the front door and answer it. He testified he did not tell P.C. Wilson the person in bed was not Paquette. He did not say to the female officer she could come in to look around and she would see Paquette was not there. He did not get frustrated being wakened by the knocking on the door. He did not say this sarcastically to the officer.

[22] Mr. Cecchetto was asked to draw a diagram of the motel room. He could not say how wide the patio door is. He then pointed to two doors coming into the courtroom and testified the sliding door could be seven feet wide. On the diagram he drew of the motel room, the desk was against the wall, a short distance from the sliding patio door that Mr. Cecchetto opened. According to the diagram, marked as Exhibit 1, the patio door slid into the end of the wall the desk was against and the desk would be just a few feet in front of where P.C. Wilson would have been standing at the patio door.

[23] He went to the front door of the motel room and opened the door. He never gave anyone permission to enter. The officer and other officers at the hallway front door came into the motel room later on. It was five to ten minutes before all the officers came in the room. They were asking general information, who he was, what he was doing there, who else was in room, where was Dylan. The officer at front door asked if Dylan was there and Mr. Cecchetto said no.

[24] It was when he was conversing with the officers at the front door that he noticed P.C. Wilson was inside the motel room. He did not ask her to leave as it was too late. She was scoping the place out when he saw her inside the room. Mr. Cecchetto testified there were no drugs or drug paraphernalia in plain sight. He then testified he did not know about plain sight, but they were not sprung or sprawled or strewn out across the room. He testified he did not scan the room to see where things were. He did not know where things were when he fell asleep. He agreed he could not disagree the officer saw things in plain sight. Mr. Cecchetto then said he disagreed with that. He had not noted if drugs were visible in the room but maintained there was nothing in plain view. When he was questioned how he could say there was nothing in plain view when he had not taken note of what was around, Mr. Cecchetto testified plain view was plain view, but he could not say if there was a crumb in a corner, but he could say there was nothing sprawled out across the room.

[25] There was only one desk. It was Mr. Cecchetto's evidence that P.C. Wilson was mistaken about the numerous items described in paragraph 10 being on the desk in plain view. He recalled a green bin, but it was not in front of the TV when he woke up, it was closer to the desk. In Exhibit 1 the TV on the dresser is just a short distance away from the desk against the same wall. He testified he did not know what was in the green bin.

[26] Mr. Cecchetto believed he was talking to the police officers at the front door for 10-15 minutes, which is just a guess. He did not recall any specific conversation he had with the police officers at the front door.

[27] Mr. Cecchetto disagreed he invited the female officer into the motel room to check for herself whether Mr. Paquette was there. He also did not invite the officers at the front door to come into the motel room either.

Challenging the Validity of a Search Warrant

[28] In R. v. Shivratten, 2017 ONCA 23, at para. 24, Justice Doherty held:

At trial, the defence may challenge the constitutionality of a search conducted under the authority of a search warrant by demonstrating that the contents of the ITO relied on to obtain the warrant could not justify its issuance. If the challenge is successful, the search is treated as warrantless, rendering it unreasonable and contrary to s. 8 of the Charter. The defence must then demonstrate that the fruits of the search should be excluded under s. 24(2) of the Charter: R. v. Pires, 2005 SCC 66, at para. 8.

[29] The reviewing judge does not make a de novo assessment of the ITO's contents. Rather, he or she decides whether those contents provide a basis upon which the issuing justice, acting judicially, could find reasonable and probable grounds to believe that an offence has been committed and that evidence of the offence would be found at the specified place: see R. v. Morelli, 2010 SCC 8, at para. 40; Garofoli, at p. 1452; and Pires, supra, at para. 8.

[30] In this case the defence brought an application to cross-examine the sub-affiants of the ITO, the two uniform officers whose evidence was relied upon by the affiant in advance of the Garofoli application. An accused does not have an automatic right to cross-examine the affiant or sub-affiants in an ITO, leave must be obtained from the trial judge. And leave is not granted, simply by asking for it. In R. v. Garofoli, supra, at p. 1465, Sopinka J. held that cross-examination of the affiant should be allowed where:

[T]he trial judge is satisfied that the cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds. [Emphasis added.]

[31] Sopinka J. added that the trial judge should limit the scope of cross-examination to questions that seek to establish that there was no basis on which the authorization could have been granted: R. v. Garofoli, at p. 1465.

[32] In a recent Ontario Court of Appeal case, R. v. Phan, 2020 ONCA 298, Strathey, C.J.O. held:

67 The focus on a motion for leave to cross-examine "is on the reasonableness and honesty of the affiant's belief about the existence of the requisite grounds, and not on the ultimate accuracy of the information the affiant relies upon": R. v. Victoria, 2018 ONCA 69, 359 C.C.C. (3d) 179, at para. 80. A proposed cross-examination directed to show only that some of the information relied upon by the affiant is false is unlikely to warrant leave unless it can also support an inference that the affiant knew or ought to have known it was false: Pires; Lising, at para. 41. [Emphasis added]

68 When an accused seeks evidence in support of a Garofoli application, that narrow test must be kept in mind. In R. v. Imam, 2012 O.J. No. 6543, at para. 14, Paciocco J., as he then was, indicated that an accused must demonstrate a "threshold factual basis ... raising a reasonable likelihood that cross-examination will produce probative evidence tending to discredit a material precondition to the authorization being granted or tending to show significant police misconduct in securing the search order".

[33] In Phan, the trial judge allowed limited cross-examination of the affiant of the ITO but refused cross-examination of two other officers (sub-affiants), whose investigative reports the affiant relied upon in the ITO, which the defence alleged to be false. These reports purported to have observed Mr. Phan involved in a bag exchange, from which a reasonable inference of drug trafficking was available. The defence asserted the affiant was aware the investigative reports were false and had conspired with these two officers to make the case stronger than it appeared in order to secure the search warrant.

[34] The Court of Appeal in Phan, at para. 72, dismissed the appeal and upheld the trial judge's decision to not allow cross-examine of the sub-affiant officers, holding:

72 …Even assuming that the sub-affiants deliberately tailored their reports to make it appear that there was a direct drug transaction with the appellant (and there is no evidence of this), there is no factual basis to indicate that the affiant was aware that they had done so, ignored signs, or was wilfully blind to indications of impropriety. [Emphasis added]

[35] Further, in R. v. Victoria, supra, at para. 80, the Ontario Court of Appeal held on a motion for leave to cross-examine the affiant or sub-affiant, "the focus of the inquiry is on the reasonableness and honesty of the affiant's belief about the existence of the requisite grounds, and not on the ultimate accuracy of the information the affiant relies upon," citing R. v. Green, 2015 ONCA 579, at para. 34. (See also World Bank Group v. Wallace, 2016 SCC 15, at paras. 121-123.)

[36] The defence in the instant case did not allege that D.C. Naccarato conspired with P.C. Wilson and P.C. Roffey to falsely indicate Mr. Cecchetto had invited the officers to enter the motel room to look and see if Mr. Paquette was present. Mr. Amodeo conceded he was not attacking the veracity of D.C. Naccarato. It was Mr. Amodeo's position that P.C. Wilson and P.C. Roffey entered the motel room of their own volition and falsely indicated in their police arrest reports that they were invited into the motel room by Mr. Cecchetto. Mr. Amodeo relies solely on the evidence given by Mr. Cecchetto that he did not invite P.C. Wilson into the motel room to see for herself Mr. Paquette was not there to support his motion for leave to cross-examine the two sub-affiants. There was no allegation by the defence that D.C. Naccarato believed or knew the information contained in these two officers' arrest reports was false.

[37] Mr. Cecchetto did not recall most of his conversation with P.C. Wilson at the patio door. The only thing he specifically recalled was P.C. Wilson saying to him to go open the front door leading to the hallway. He testified he did not recall any questions about Mr. Paquette. In fact his evidence on this flip flopped between P.C. Wilson did not ask about Mr. Paquette to he did not recall if she had. In my view this does not accord with logic given this was why the officers were knocking on Room 122 at the Travelodge Motel. They were looking to arrest Mr. Paquette for an assault causing bodily harm charge in respect of an allegation Mr. Paquette had fractured a woman's jaw. There is someone under the covers on one of the beds in the motel room, which could be seen from the patio door. Mr. Cecchetto does not recall anything being said about Mr. Paquette or who was lying under the covers on the bed. This does not accord with common sense. Mr. Cecchetto later testified he was sure P.C. Wilson did not ask if the person sleeping on the bed was Mr. Paquette and then he testified she might have thrown that out when he was first talking to her. Mr. Cecchetto then testified he did not tell the female officer the person sleeping was not Mr. Paquette. I found his evidence on these issues to be inconsistent, deliberately selective and evasive.

[38] Mr. Cecchetto's evidence respecting whether the drugs and drug paraphernalia were in plain view was also inconsistent and did not make sense. He agreed he did not know what items were on the desk when he fell asleep. He had used cocaine the night before, which he agreed impairs his judgment and memory. He was awakened from being asleep by loud knocking. He went to the patio door and saw a uniformed officer. When he opened the door she asked him to go open the front door, which he said he did and he did not take note of anything in the room, including whether Mr. Paquette was still there until after he had spoken to the police officers at the front door for five or ten minutes. This was when he first became aware of P.C. Wilson being inside the motel room. When he was challenged by the Crown on his evidence that there were no drugs or drug paraphernalia in plain view Mr. Cecchetto testified plain view is plain view, he can't say whether there were crumbs in a corner, but he knows nothing was sprawled around the room. The Crown was putting to him the items observed by P.C. Wilson in plain view on the desk and in a green bin and in a cardboard box. I found Mr. Cecchetto's evidence on this issue to be incredible and in my view he did not want to answer the questions put to him and he was evasive in the answers he gave. In my view Mr. Cecchetto's evidence is not sufficient to persuade me he did not invite P.C. Wilson to come into the motel room to see for herself that Mr. Paquette was not there.

[39] Further, Mr. Cecchetto's evidence only indicates, if I accept it, which I do not, that some of the information within the arrest reports of P.C. Wilson and P.C. Roffey relied upon by the ITO affiant, D.C. Naccarato, might be inaccurate or false, which according to the caselaw I have reviewed above is not sufficient to grant leave to cross-examine the sub-affiants.

[40] Mr. Amodeo sought to cross-examine both of the sub-affiants, the two uniformed police officers, P.C. Roffey and P.C. Wilson, who attended the Travel Lodge Motel, Room 122, looking for Dylan Paquette to arrest him for the offence of assault causing bodily harm. The defence alleged P.C. Wilson and P.C. Roffey, falsely indicated in their typed arrest reports that they were invited into Room 122 to look for Dylan Paquette, which information was relied upon by D.C. Naccarato, the ITO affiant, in seeking the search warrant. Cross-examination that only shows that the information relied upon by the ITO affiant was false is not likely to be useful in determining the issues raised in a Garofoli application unless there is a reasonable inference based on the evidence that the affiant knew or ought to have known that the information was false. Simply pointing to omissions, inconsistencies, or conclusory or inaccurate statements is not a sufficient basis to permit cross-examination. Put another way, "The focus is on the reasonableness and honesty of the affiant's belief as to the existence of the requisite grounds, and not on the ultimate accuracy of the information relied on by the affiant" (See R. v. Chen, [2020] O.J. No. 4045; R. v. Pires, at paras. 41-43; R. v. Green, at paras. 34-36; R. v. Phan, at para. 72 and R. v. Victoria, at para. 80.

[41] In the circumstances of this case, there is no factual basis to indicate and the defence does not argue there is any evidence upon which a reasonable inference could be drawn that D.C. Naccarato was aware or was wilfully blind as to P.C. Wilson and/or P.C. Roffey providing inaccurate or false information in their arrest reports. There is good reason for this, given the evidence presented by the defence did not even satisfy me that these two officers were not invited in to the motel room. As a result, I am dismissing the application seeking leave to cross-examine the sub-affiants, P.C. Wilson and P.C. Roffey.

Released: November 4, 2020

Signed: Justice Peter C. West