Court File and Parties
Ontario Court of Justice
Between:
His Majesty the King
— and —
Andrew Dainard and Sara Manchisi
Before: Justice J. De Filippis
Heard on: October 23, 2024
Reasons for Rulings on Pretrial Motions released on: November 7, 2025
Counsel
Ms. S. Ford — counsel for the Crown
Mr. R. McCourt — counsel for the accused A. Dainard
Mr. J. Lloyd — counsel for the accused S. Manchisi
De Filippis, J.:
INTRODUCTION
1The defendants face a trial on charges that include possession for the purpose of trafficking and firearms offences. The charges stem from the execution of a search warrant. This, in turn, was part of a larger investigation involving several police forces in several cities in Ontario. On the day set for a motion for leave to cross-examine an affiant, the Defence requested an order that the Crown provide further disclosure. I dismissed that request and heard the scheduled motion. I have concluded that leave should not be granted to cross-examine the affiant. These reasons explain why both motions failed.
2In December 2023, the Provincial Joint Forces Cannabis Enforcement Team (PJFCET) began an investigation into the illegal sale of cannabis and tobacco from various storefronts using the brand name 'Indige Smoke'. None of these establishments were licenced to sell these products under Provincial or Federal regulations. On March 7, 2024, a series of authorizations were granted for the search of addresses in Thorold, Welland, and Fort Erie related to the 'Indige Smoke' businesses. Approximately $250,000 worth of illegal cannabis and tobacco products were seized because of the execution of these warrants.
3Shortly after these seizures, the police became aware that the 'Indige Smoke' locations had reopened and resumed sale of illicit products at additional locations and identified people, including Andrew Dainard, believed to be involved in the transport and sale of the contraband. May 6, 2024, police were granted a TDR warrant and tracking warrant for the cellular device and vehicle associated to Mr. Dainard.
4On May 30, 2024, investigators applied for judicial authorization to search various locations. The application was denied. The next day, a revised application was submitted. This was denied. Several days later, a third application was submitted. This was denied. On June 4, 2024, a fourth Information To Obtain (ITO) was submitted and judicial authorization to enter and search nine (9) locations in relation to six (6) persons of interest was granted. Locations #1 to #6 were 'Indige Smoke' storefronts. Location #7 was a storage unit where Mr. Dainard was seen attending. Location #8 was the shared residence of two of the suspects. Location #9 was identified as the residence of Mr. Dainard located at 7739 Shaw Street, Niagara Falls.
5The Crown alleges that the execution of the search warrant at 7739 Shaw Street resulted in the seizure of these items: approximately 75 grams of suspected cocaine, digital scales, $1,400 in Canadian currency, a Canuck 12 gauge shotgun, a Keltec Lugar P11 handgun, and approximately 170 rounds of ammunition. Mr. Dainard and his common law spouse, Sara Manchisi were present inside the residence and placed under arrest.
6Following several judicial pretrials, these dates were fixed:
- October 23 – Defence motion for leave to cross-examine the affiant who applied for the search warrant
- November 7 & 17 – Cross-examination of the affiant (if leave is granted) and Garofoli motion
- December 8 to 10 – Trial
7I received written material from the parties with respect to the first motion. On October 20, 2025, I communicated with counsel as follows:
The content of this email will be put on the record on October 23. I do not invite a response to this email from counsel.…..My purpose in communicating with you is to assist counsel by advising how I intend to proceed with the motion on October 23 so that the day is effectively used and delay avoided. I have read the material filed by the Applicant and Respondent. At paragraph 40 of the Respondent's material is a chart setting out a response to each of the grounds relied upon by the Applicant in seeking leave to cross-examine the affiant. It appears to me that the Respondent has fairly set out each of the grounds and I stand to be corrected by the Applicant. In any event, I propose that the motion begin with the Applicant replying to each response provided by the Respondent in paragraph 40.
DISCLOSURE MOTION
8On October 22, one day before the first scheduled motion, the Defence brought a disclosure motion asking for all source documents for all facets of the investigations. The purpose is to investigate whether the affiant has made full, fair, and frank disclosure and if the ITO can support the judicial authorization to search. I understand that there are about 50 police officers involved in the investigations.
9Mr. Dainard was initially represented by a different lawyer. Months later, he retained current counsel. On August 11, 2025, a final judicial pretrial was held between present counsel and Justice Calderwood. During discussion of this disclosure motion, I was provided with an email sent by Justice Calderwood to the parties right after the meeting on August 11. The email notes, among other things, that "Disclosure is now complete" and that Defence counsel had expressed concerns about delay in the proceedings. This case was subsequently spoken to in court on August 15, September 19 and September 24, 2025. On the latter date, the parties confirmed readiness to proceed with the schedule of dates set out above.
10The Crown's ongoing disclosure obligation is of critical importance to the criminal justice system. Where the parties cannot resolve disputes, the Defence has a duty to bring any non-disclosure to the attention of the trial judge in a timely manner: Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (Queen's Printer for Ontario; 1993) at p. 148.
11This disclosure request is a last minute one. It comes after a judicial pretrial that determined disclosure was complete, and after the parties confirmed they were ready to proceed to trial. The request follows the recent disclosure by the Crown of certain tracking data. More significant, perhaps, it comes after the Crown's written response to the Defence motion for leave to cross-examine the affiant and my email to the parties setting out how I proposed to deal with that motion. In any event, the disclosure motion, filed in support of a request for leave to cross-examine an affiant with respect to a judicial order that is presumptively valid, lacks focus. To grant this motion would upset the schedule of dates fixed for this trial and cause delay in a case that is already 17 months old.
12In R v Cody, 2017 SCC 31, the Supreme Court of Canada emphasized the importance of preventing delay to "effect real change", as well as the role to be played by all actors in the justice system to achieve that goal. The Court stated: "All justice system participants—defence counsel included—must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11(b) of the Charter." The Court also noted the important role of trial judges in "changing court room culture", given their case management powers and control over the conduct of trials.
13I dismissed the disclosure motion.
MOTION FOR LEAVE TO CROSS-EXAMINE THE AFFIANT
14Section 8 of the Charter of Rights and Freedoms provides that, "Everyone has the right to be secure against unreasonable search or seizure". Statutory provisions authorizing search or seizure must conform to this minimum constitutional requirement; namely, "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of search; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253. The affiant's subjective belief in these grounds must be objectively reasonable; Storrey v. The Queen (1990), 1990 CanLII 125 (SCC), 53 C.C.C. (3d) 316 (S.C.C.).
15The application of this standard means that "the state's interest in detecting and preventing crime begins to prevail over the individual's interest in being left alone at the point where credibly-based probability replaces suspicion". "Mere suspicion, conjecture, hypothesis or 'fishing expeditions' fall short of the minimally acceptable standard from both a common law and constitutional perspective;" R. v. Sanchez (1994), 1994 CanLII 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.). On the other hand, "If the inference of specific criminal activity is a reasonable inference from the facts, the warrant could be issued;" R. v. Jacobson, 2006 CanLII 12292 (ON CA), [2006] O.J. No. 1527 (Ont. C.A.).
16Most challenges to search warrants address the sufficiency of the information set out in the ITO. This is known as an attack on facial validity. In such cases, the reviewing judge must determine whether there is a basis upon which the authorizing judge could be satisfied that the preconditions for the granting the warrant existed. This inquiry focusses on the ITO itself. Cross-examination of an affiant is relevant only with respect to sub-facial validity. If it is shown that statements by the affiant in the ITO may not be accurate, or pertinent information that could have affected issuance of the order was omitted, cross-examination will be relevant.
17Judicial orders are presumptively valid. In challenging a search warrant, there is no right to cross-examine the affiant. In Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, the court held, at paragraphs 88-89:
Leave must be obtained to cross-examine. The granting of leave must be left to the exercise of the discretion of the trial judge. Leave should be granted when the trial judge is satisfied that 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.
18The law does not require an applicant to present a prima facie case in support the assertions or make a substantial preliminary showing of fraud or recklessness on the part of the affiant. However, an applicant must point to the evidentiary basis to justify cross-examination: R. v. Ambrose, 1994 CanLII 1378 (ON CA), [1994] O.J. No. 1457 (OCA). This prevents "fishing expeditions". Merely pointing to omissions, inconsistencies, and conclusory statements, does not justify cross-examination. The applicant must show how these errors discredit the original grounds for issuance of the warrant. Where there is an error in the ITO, the applicant must also demonstrate that there is a basis to support the inference that the affiant knew or ought to have known that the information was false in preparing the ITO. Similarly, it is not sufficient for the applicant to merely question the credibility of the affiant. Such a challenge must be in relation to an essential element of the ITO and cast such doubt that the reliability of the affidavit is tainted: R. v. Reid, 2017 ONCA 430, at para. 17 ; R. v. Lucas, 2014 ONCA 561, at para. 147 .
19In R v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R 343 the Supreme Court of Canada provided guidance on the test for leave to cross-examine. The Court explained that the Garofoli review did not involve testing the merits of the case or the truth of the allegations. Rather, the review was an evidentiary hearing to determine the admissibility of evidence obtained pursuant to a presumptively valid court order. There is only a narrow set of circumstances in which a valid judicial authorization will be set aside. As a result, leave to cross-examine will only be permitted in similarly narrow cases: "The reason that the test will generally leave just a narrow window for cross-examination is not because the test is onerous -- it is because there is just a narrow basis upon which an authorization can be set aside". The Court also noted that the leave requirement strikes an appropriate balance between the entitlement to cross-examination as an aspect of the right to make full answer and defence, and the public interest in the fair, but efficient, use of judicial resources and the timely determination of criminal proceedings: paragraphs 3, 30, 31, and 40.
20Where leave is granted to cross-examine an affiant, it must be restricted to questions that will elicit evidence tending to undermine one or more of the preconditions for the issuance of the warrant. This necessarily excludes cross-examination on peripheral matters unrelated to the grounds for issuance. As the Supreme Court in Pires and Lising explained, at paragraph 10 : "When permitted, the cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted…"
21The record before me on the motion for leave to cross-examine the affiant includes the 87-page ITO in question as well as the three tracking data analyst reports and surveillance reports for March 26 – 27, April 23, and May 9, 2024, that are referenced in that ITO.
22Below is a chart prepared by the Crown setting out its response to each the grounds relied upon by the applicants. In addition, I have the benefit of a further written reply by the applicants and oral submissions by the parties.
| # | Paragraphs | Challenge by the Applicants | Crown Response |
|---|---|---|---|
| 1 | Appendix A P. 14- 15 Location #9 | The affiant had no basis for opining that electronic devices as outlined in the terms and conditions would afford evidence because the physical surveillance and tracking evidence made it clear that there was no video storage at Location #9 | This portion of the affidavit seeks authorization to search the cellular device(s), computers, or other media storage devices belonging to the accused for evidence of involvement with the illicit sale of cannabis. In particular, it targets devices capable of being used to "facilitate orders from the illicit online dispensary". It is not restricted to a search for CCTV. |
| 2 | Appendix C Para 3 | "Master Case" as a term of art. The Applicant proposes to amplify the record to show that "Master Case" is not a term of art which can confirm illegality pursuant to s.121.1(1) of the CC and resulted in the issuing justice being mislead regarding whether a legal violation had occurred. | The Crown could find no reference to this term in Appendix C at para. 3. This paragraph appears to set out the past training of the Affiant. |
| 3 | Para 13 | Daman Bhutta provides a number of charts with color coded designations and time assessments which do not disclose the manner in which the tracking occurs and which are not supported by sourcing documents sufficient to explain the color coding, the time signatures, or the justification for why certain time signatures do not match physical surveillance testified to by other sub-affiants including an assertion that Andrew Dainard was not in Canada for a period of the tracking warrant. As such, the interpretation of the tracking data by the affiant is conclusory and speculative without explanation. | Paragraph 13 contains only two sentences, identifying that a previous TDR and tracking warrant was authorized in relation to Andrew DAINARD. The Applicant may be speaking of paragraphs 58-60. These paragraphs contain two charts of tracking data associated to DAINARD's cellular device. The charts are sourced to reports authored by OPP Analyst Daman Bhutta on May 29 and 30, 2024. An affiant's note following paragraph 60 explains that there is a gap in the data between May 13 and 20, 2024 as police had reason to believe DAINARD was out of the jurisdiction on those dates. The Applicant had provided no evidentiary basis to conclude any of this evidence was misleading or included material inconsistencies. There are no observations of DAINARD in the ITO which conflict with the Affiant's stated belief that he was not in the jurisdiction between May 13-20, 2024 The charts are coloured coded for ease of review and the affiant does not proport to attribute any meaning to the colours utilized. There is no basis to believe questioning the affiant on the colour scheme could undermine the grounds for issuance. The Applicants assert that the tracking data, obtained under judicial authorization, is 'conclusory and speculative without explanation'. Merely asserting a statement is conclusory, without demonstrating material errors or identifying how the grounds for issuance are discredited, is insufficient. |
| 4 | Para 16- 21 | The Applicant intends to amplify the record to show that the affiant deliberately adjusted the ITO in a manner that resulted in the issuing justice being mislead regarding the grounds. For example, the temporal link between the Applicant's residence and the impugned activity was significantly weaker than outlined in the ITO but the affiant writes in the final ITO that they agree with the prior Justice regarding sufficiency of grounds on a separate location | The Affiant clearly sets out the history of prior, rejected applications in accordance with his obligations. The Affiant demonstrates good faith by acknowledging certain weaknesses in the previous omnibus application and amending the authorization sought accordingly. The Affiant further attempts to respond to the concerns of the Justice by supplementing the information provided in the affidavit. This is entirely consistent with the purpose of the procedure: to ensure potential deficiencies identified by the Issuing Justice have been rectified. |
| 5 | Paras 22(b), 29(i), 30(b), 34(a) | The sub-affiants did not observe any unstamped or unpackaged tobacco. The affiant alters the language in s.121.1 to impugn any "tobacco" with the proviso that certain tobacco is "illegal or unlicensed tobacco" without any explanation of how s.121.1 of the CC has been violated. The sub-affiants do not describe any illegal tobacco whatsoever and the affiant does not explain this. | The Affiant makes clear that the 'Indige Smoke' locations, frequented by DAINARD, publicly advertise the sale of cannabis and tobacco products: see affiant note following para. 33(c), 74. These stores were not authorized vendors of cannabis products pursuant to Health Canada or the Alcohol and Gaming Commission of Ontario (AGCO): para. 14, 70-71. Warrants previously executed at the same storefronts resulted in location of large quantities of illicit tobacco and cannabis products: paras. 12, 75(b). Surveillance revealed persons leaving the storefronts in possession of tobacco products: para. 34(a), 48(b), 75(c). Photographs are included to permit the Issuing Justice to undertake his/her own analysis. The Affiant explicitly sets out the provisions of the Criminal Code and addresses the question of whether the tobacco products are stamped: para. 75 (a)- (d), 80 , affiant note following 45(n). In addition to the paragraphs identified by the Applicants, the Affiant further sets out surveillance observations of DAINARD carrying apparent cannabis into the 'Indigo Smoke' locations at 264 King St, Welland and 30 Albert St. East, Thorold: see para. 53(g) and 53(j). It should be noted the subject address was not being searched for tobacco products (see Appendix A, Location #9). |
| 6 | Para 37(b)- (f) | The Applicant proposes to amplify the record to show that these paragraphs are unreliable and inaccurate: • the sub-affiants could not have seen what the affiant describes because the affiant swears to an employee entrance to a premises without any such entrance, describes boxes as "heavy" with no justification from sub-affiant notes or reports, and describes losing a subject in an area where visibility extends for kilometers in all directions. • Despite, these comments, the Affiant proposes that the only explanation for the physical surveillance is Andrew Dainard's involvement in a trafficking operation. • The Applicant proposes to amplify the record to show that the discrepancies in physical surveillance and what was ultimately communicated to the issuing justice resulted in extreme confusion for the issuing justice | The Applicant has not tendered any supporting evidence to demonstrate inconsistencies between the source document (Surveillance Report of DC Bezzo, dated March 26, 2024) and the content of the Affidavit. This report reads, in part: At 10:46am, Andrew DAINARD is observed exiting the employee doors of Indige Smoke Thorold with a box that appears heavy. DAINARD is observed wearing an orange construction shirt and loads the box into the rear driver's side of the Black Acura KAS 85. This is the very language impugned by the Applicants. It has been taken verbatim from the Surveillance Report source document. No inconsistency has been demonstrated. An affiant is permitted to rely on the reports of other officers as accurate and trustworthy. The source document further reads: "11:04 – DAINARD observed exiting the rear of Indige Smoke St. Catharines, enters KAS 85 Acura and away" "11:30 – DAINARD lost in surveillance in the area of Clendenning Street at Dores Drive, Niagara Falls" The report makes it clear that mobile surveillance is being undertaken. A target may be 'lost' even in areas of high visibility. Any cross-examination on this point would be wholly unrelated to the grounds for issuance and may well violate investigative technique privilege. The Applicants have demonstrated no inconsistencies between the surveillance reports and the affidavit. |
| 7 | Para 51(c), (j) | The Applicant proposes to amplify the record to show: • The conclusory and unsourced nature of the term "Master Case" and the replacement of this term later in the ITO with "cardboard box" without explanation. • The affiant swears that no direct surveillance is possible at 7739 Shaw but here concludes with certainty that Dainard attends at this location with no support from the tracking data or sub-affiant notes. | The Applicants have provided no evidentiary basis to assert inconsistencies striking at the heart of issuance. The term "master case" is taken directly from the language used in the source documents, the Surveillance Reports of DC Cole and DC Sebaaly. The term "master case" is used in three paragraphs of the ITO: paras. 45(n, v, x), 51(c), and 54(c, f). The first time the term is used, the Affiant provides the following description: At 1319 hrs Sadiku and Nikanorov arrived at "lndige Smoke" located at 1318 Dominion Road, in the city of Fort Erie. They are observed carrying two cardboard "master cases" , the grey rubber tote and toilet paper from the car into the store. The Affiant goes on to note that similar boxes had been located during the previous warrant executions at 'Indige Smoke' locations: para. 45(n) Affiant note. The term "master case" is used a second time in para. 45(v). A photograph of the box is included for review by the Issuing Justice: para. 45. The term is again used in para. 51. Again, a photograph accompanies the description to permit the Justice to come to his/her own determination. The term is finally used in para. 54. Again, a photograph accompanies the description. There is no reasonable possibility the Justice was misled or confused by the use of this term. In all cases, the use of the term "master case" is accompanied by a photograph depicting a large, rectangular cardboard box. The Affiant's use of this term had no impact on the grounds for issuance. Further, the Applicant has shown no inconsistency on the issue of surveillance. At para. 51(j), the Affiant notes that DAINARD returned to his residence. The Surveillance Report source document reads in part: At 1218hrs DAINARD returns to his residence where he is seen parking in the garage before closing it behind him The Affiant does not swear that no direct surveillance is possible at 7739 Shaw St, he states that continuous surveillance is difficult and risks compromising the integrity of the investigation: affiant note following para. 58(s). |
| 8 | Paras 53(g)(j) 54(c)(f)(h) 58(g)(h)(i)(k) (n)(o)(p)(s) | The Applicant proposes to amply the record to show: • the Affiant failed to indicate that in fact the individual under surveillance had attended at a fully legal and licensed cannabis store rather than an "unlicensed and illegal" cannabis store and that this failure to disclose misled the issuing justice; • The affiant failed to explain what "master case" means and later alters the description to suggest that any item, including heavy items, could be in the cardboard boxes without explanation. • reasons for misstatement • the misstatement/failure to clarify was intentional/negligent • the Affiant misstated what was observed | The Respondent has already addressed the references to "Master Case" and inclusion of photographs. As it relates to the first bullet point, surveillance showing the individual under surveillance (DAINARD) had attended a licenced establishment, the Applicants have led no evidence to support this assertion. The Affiant sets out DAINARD's attendance at 264 King St, Welland, 30 Albert St East, Thorold, and 363 Vine Street, St. Catharines. These addresses are identified as 'Indige Smoke' storefronts. The ITO sets out that none of these locations is authorized to sell cannabis or tobacco products: paras. 14, 70-71. Paragraph 59(k) of the Affidavit states that DAINARD attended Canna Cabana Store, located at 7555 Montrose Rd, Niagara Falls. No suggestion is made that this store was involved in illicit activities. The affidavit is consistent with the source documents, namely the Surveillance Report of DC Walsh. The disclosure is full, frank, and fair. The Applicant has not articulated any way in which inclusion of this observation undermines the grounds for issuance. |
| 9 | Para 59 | These charts are not based on any disclosed sourcing material and contain amendments which are unclear – we don't know whether the sub-affiant or the affiant highlighted these or who made the calculations regarding location and time including variance settings for the location settings given the proximity of the subject's gym to the impugned locations. The Applicant seeks to amplify the record to show that a significant portion of the impugned "visits" to cannabis stores were in fact visits to a gym based on the material in Bhutta's report. | The Applicant has demonstrated no material misrepresentations or errors by the Affiant or sub-affiant. The Applicants have not provided an evidentiary basis for asserting that the data included at para 59 is inaccurate or misleading. Seeking to question the Affiant or sub-Affiants about the data in the hopes of discovering an inconsistency is the definition of a fishing expedition. In particular, the Applicants assert that the Tracking Warrant data may be inaccurate because DAINARD's gym was located in close proximity to other target locations. First, this is purely speculative. Second, it is important to note that only one (1) of the nine (9) locations identified in the ITO was located in the same city as DAINARD's gym (St. Catharines). On at least one occasion, contemporaneous surveillance confirmed the accuracy of the Tracking Data in relation to that specific location (383 Vine St, STC): see Surveillance Report dated May 9, 2024. The Applicants have tendered nothing in support of the assertion that the Tracking Data may be inaccurate or incapable of discerning between locations (ie. No affidavit from an expert, etc.). The Respondent respectfully submits that, to the extent the Applicants were missing source documentation, the appropriate action would be a disclosure request. |
| 10 | Para 63(b) | The affiant changes the language for "master case" without explanation resulting in confusion and potentially misleading the issuing justice. The Applicant also seeks excision if amplification is not sufficient to cure the defect. | The Respondent has already addressed the issue of the term "master case" above. In each instance, the Affiant was borrowing the language of the source document author. In paragraph 63, the Affiant describes the item in his own words as "a box". There is no material inconsistency in this. The multiple photographs embedded in the ITO make clear what item(s) are being referred to. |
| 11 | Para 71(a) | There is no query regarding the Applicant's licensure and no inquiry regarding whether or not licensing existed for the storage of cannabis or tobacco at the Applicant's home. The affiant's material here misleads the issuing justice and the Applicant seeks to amplify the record to show that no inquiry at all was made regarding 7739 Shaw and whether cannabis or tobacco was allowed to be stored there | The Affiant dedicates an entire section of the ITO to this issue, under the heading: "Health Canada Licence and Registration Inquiries": paras. 70-71. This section clearly sets out which locations and individual licences had been checked with Health Canada. Nothing in the contents of these paragraphs is misleading. The Affiant was made aware of correspondence from Heath Canada advising that Andrew DAINARD was not authorized to sell cannabis products. The application seeks to search the target residence at 7739 Shaw St for various items related to the illicit sale of cannabis, not storage. The building at 7739 Shaw St is a private residence, not a commercial property. It would not meet the criteria necessary to obtain a commercial sale licence. |
| 12 | Para 72- 74 | The Applicant proposes to amplify the record to show that no sourcing documentation occurred to substantiate who the owner of the website was and whether the terms "tobacco products" actually constituted an offence under s.121.1 despite the affiant's characterization and use of the words "unlicenced/illegal" rather than the clear language in s.121.1. | The Applicant does not point to any material misrepresentation, omission, or error. The Affidavit includes a screenshot of the website for 'Indige Smoke', offering the sale of tobacco and cannabis products. The image also includes a list of the company's locations, none of which hold Health Canada licences: paras. 70-74. The Affiant further provides additional screenshots from the website at Appendix D. The Affiant does not purport to attribute ownership of the website to any specific, named individual. The ownership of the domain does not factor into the grounds for issuance and thus seeking to elicit evidence about same could not risk undermining the decision of the Issuing Justice. The ITO must be read as a whole, including the paragraphs which explain the Affiant's belief that unlicenced cannabis and tobacco will be found at the storefront locations, and the Affiant's belief the documentation and other evidence associated to the sale of cannabis will be found at the residence on Shaw Street. |
| 13 | Para 75(b)(c) | The Applicant will seek to amplify the record to show that master case is not a term of art and does not create an offence under s.121.1. | The Respondent has addressed these issues above. |
| 14 | Para 185- 196 | The basis for the seizure of electronic devices is overbroad and does not support reasonable grounds. The Applicant seeks to excise or amplify this material. | This is not a basis to seek cross-examination of the Affiant. |
| 15 | Paras 241- 250 | The Applicant will seek to amplify the record to show that the sealing order was unnecessary and misled the issuing justice regarding the "secrecy" of the materials in the ITO. | Informations to Obtain are filed with the Court as part of an ongoing investigation. These documents can, and must, remain private until the successful execution of the issued warrants. Disallowing sealing orders, especially in complex, multi-jurisdictional investigations, would seriously and unnecessarily risk the integrity of police efforts. Even if a sealing order were deemed unnecessary in a particular case, questioning an Affiant on their opinion as to the need for a sealing order could in no way undermine or alter a finding of reasonable and probable grounds to believe evidence will be found. |
| 16 | Appendix D | Website – The Applicant will seek to amplify the record or to excise these materials on the basis that no sourcing documents exist. | The Appendix contains screenshots of the website http://indigesmoke.com . This is identified by the Affiant at paragraphs 72- 74. |
23I conclude that the response by the Crown correctly explains why leave should not be granted to cross-examine the affiant; that is, the applicants have not identified any area in which the affiant failed in his obligation to be full, frank, and fair or demonstrated that the ITO contained material misrepresentations, errors, or omissions which risked undermining the grounds for issuance or the order.
24In coming to this conclusion, I am not troubled by the reply to that response by the applicants. I will note a few specific areas of concern that the applicants focussed upon in their reply, before dealing with their primary, more general, submission.
25The applicants' reply to the Crown response in point no. 1 is that there is no physical surveillance that connects Mr. Dainard to the assertions in the ITO with respect to Location # 9 and that the affiant knew there was no such link. This ignores the context for the affiant's assertions as set out in paragraph 191 of the ITO as well as the surveillance report dated April 23, 2024 at 2:15 pm; Mr. Dainard is seen with a clear bag that appears to contain cannabis and there is a camera monitoring the residence.
26With respect to points no. 2, 7, and 8, the applicants maintain that the phrase "master case" is a term of art the affiant was not entitled to use. The phrase was taken directly from the surveillance reports of DC Cole and DC Sebaaly. As such, whether there is a reasonable possibility that the issuing justice could have been confused by this phrase is a matter for argument with respect to facial validity, not cross-examination with respect to sub-facial validity.
27In point no. 3, the applicants question how the colour coded charts in the ITO are presented and what they refer to. These charts are also referenced in point no. 9. They are explained by the tracking data and the conversion of the GPS coordinates to municipal addresses. In their reply, the applicants quarrel with the fact that this conversion was conducted. They also assert that this tracking data is at odds with statements in the ITO and misleading in that it does not clarify that Mr. Dainard could have been at a gym adjacent to the place under surveillance. I do not understand why converting the data to municipal addresses and linking it to the surveillance reports is an issue. In any event, whether the impugned statements in the ITO can be reasonably inferred from the surveillance reports is a matter that is properly addressed in the attack on facial validity.
28The applicants reply, with respect to point no. 5, that the affiant misled the issuing justice by referring to s. 121.1 of the Criminal Code when "he knew that he was really describing a provincial stamping offence". However, the ITO, at paragraph 75, reproduces s. 121.1 for the judicial officer to read and consider. The applicants also maintain that the photographs referenced in point no. 5 do not support the affiant's assertions – that the boxes carried by Mr. Dainard were "heavy" and that he was subsequently lost in surveillance. However, again, these statements are taken from the surveillance reports.
29The primary reply by the applicants to the Crown response goes back to the disclosure motion. Counsel for both applicants repeated the need for all source documents for all facets of the several investigations. Their submission, in other words, is that this could enable them to successfully reply to Crown response and show why leave should be granted to cross-examine the affiant. I have explained why the disclosure motion failed.
30The second motion fails because the applicants have not shown that the proposed cross-examination could elicit evidence tending to discredit the preconditions for the issuance of the search warrant. That they identified areas they hoped would accomplish this objective is not enough. In this regard, I note the comments of the Court of Appeal for Ontario in R. v. Washington, 1997 CanLII 3968 (ONCA):
In our view, the trial judge was correct in denying the request for leave to cross-examine the affiant and the sub-affiants. The purpose of the request was to enable the defence to see whether the proposed cross-examinations might disclose evidence that would be of assistance in their ultimate attack on the Watt J's authorization. This was in the nature of a "fishing expedition".
31My comments in this decision are not necessarily relevant to the attack on facial validity. That motion will be heard at the next stage of these proceeding.
Released: November 7, 2025
Signed: Justice J. De Filippis
1The formal release date of this decision is November 7, 2025 (the date it will be filed on the record). However, it was released to counsel on October 30, 2025, so that they can prepare for the next step in these proceedings.