Court of Appeal for Ontario

Date: 20230214 Docket: C69326

Simmons, Paciocco and Zarnett JJ.A.

BETWEEN

His Majesty the King Respondent

and

Donovan Shah Appellant

Counsel: Chris Rudnicki and Karen Lau-Po-Hung, for the appellant Victoria Rivers, for the respondent

Heard: February 8, 2023

On appeal from the convictions entered on November 13, 2020 by Justice Cathy Mocha of the Ontario Court of Justice.

Reasons for Decision

[1] Donovan Shah challenges his convictions for possession of heroin, methamphetamine, and fentanyl for the purpose of trafficking, as well as his conviction for possession of proceeds of crime. We dismissed his appeal at the end of oral argument, with reasons to follow. These are our reasons.

Did the trial judge err in denying leave to Mr. Shah to cross-examine the search warrant affiant?

[2] Mr. Shah argued that the trial judge erred in denying him leave to cross‑examine the affiant of the Information to Obtain (“ITO”) used to secure the search warrant that led to the discovery of crucial evidence against him. The rules that govern this ground of appeal are clear:

• In determining whether to grant leave to cross-examine, a reviewing judge is to decide whether there is a “reasonable likelihood” that the cross‑examination will impact on the question of the admissibility of the evidence obtained using the search warrant: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 30-31, 40.
• The standard of review on appeal from a reviewing judge’s decision whether to grant leave to cross-examine is deferential. “Absent an error in principle, a material misapprehension of the evidence, or an unreasonable determination, an appellate court should decline to interfere with the reviewing judge’s decision”: R. v. Castellano, 2023 ONCA 45, at para. 21 (citations omitted).

[3] Mr. Shah’s argument before us focused on the trial judge’s decision to deny him leave to cross-examine the affiant on the inclusion in the ITO of information relating to Mr. Shah’s dismissed 2017 drug charges. [1] The ITO detailed that Mr. Shah was the target of a 2017 drug investigation in which he was discovered to be in possession of “a large amount of heroin” on his person, as well as further “amounts of heroin, cocaine and dextrose” and a firearm in his residence. This investigation led to charges against Mr. Shah, but those charges were dismissed after the key evidence against him was excluded because of a Charter ruling. After summarizing this information, the affiant stated “(Shah’s charges were dismissed, not convicted of above)”. However, the affiant made no mention that the charges were dismissed because the evidence had been obtained in violation of the Charter.

[4] Before the trial judge, Mr. Shah argued that it is improper for an affiant to include reference to unconstitutionally obtained information in a search warrant ITO, a proposition that finds support in the decisions of R. v. Plant, 1993 SCC 70, [1993] 3 S.C.R. 281, at p. 291; R. v. Grant, 1993 SCC 68, [1993] 3 S.C.R. 223, at p. 251. See also: R. v. Mawick, 2021 ONCA 177, at para. 5; R. v. Barton, 2021 ONCA 451, 493 C.R.R. (2d) 101, at para. 7. He argued on this basis that he should be granted leave to cross‑examine the affiant to determine whether the affiant deliberately included this impermissible information for the purpose of prejudicing Mr. Shah, or whether he was reckless in doing so. The trial judge denied this request after finding that Mr. Shah had not provided a foundation showing a realistic likelihood for the theories he wished to advance.

[5] Mr. Shah argued before us that the trial judge erred in principle in coming to this decision because she misapprehended Mr. Shah’s submissions. Mr. Shah was seeking the cross-examination in support of a request to set aside the warrant pursuant to R. v. Paryniuk, 2017 ONCA 87, 347 C.C.C. (3d) 82, at para. 69, on the basis that the police subverted the pre-authorization process through the improper inclusion of this prejudicial information in the warrant. He also argued, more forcefully on appeal than at trial, that there is a reasonable likelihood that the cross‑examination would show that the affiant deliberately failed to disclose the fact that the 2017 charges were dismissed as the result of a Charter ruling, which if disclosed would require the excision of this information from the ITO.

[6] We see no basis for concluding that the trial judge misapprehended the relevance of the proposed cross-examination.

[7] First, it is evident that the trial judge appreciated Mr. Shah’s theory that there is a reasonable likelihood that cross-examination would show that the affiant included the 2017 charges to prejudice Mr. Shah. In her decision to deny leave to cross-examine the affiant the trial judge identified “legitimate reasons” other than a desire to prejudice Mr. Shah for why the affiant would have included this information. The only relevance those legitimate reasons have is to undercut Mr. Shah’s prejudice theory. This alone demonstrates that the trial judge understood this submission.

[8] With respect to Mr. Shaw’s desire to cross-examine the affiant to explore whether the affiant intentionally or recklessly included impermissible information found to have been secured in breach of the Charter, the trial judge held that, “There is no basis upon which to believe that the affiant was aware that there was a finding of a Charter breach”. This finding provides a direct answer to this submission.

[9] There is therefore no basis for finding that the trial judge misapprehended the submissions.

[10] Although he did not cast it in these terms, Mr. Shah also suggested that the trial judge’s decision was “unreasonable”. He effectively made this submission by identifying four facts that, in his view, show a realistic likelihood that the cross‑examination would assist in resolving the search warrant challenges that he was contemplating. We will not rehearse those submissions here. Suffice it to say that these four arguments were not advanced before the trial judge with the same particularity with which they were presented to us and, in any event, are not compelling enough to demonstrate that the trial judge’s decision was unreasonable.

[11] As indicated, deference is to be given to the decision of a reviewing judge whether to grant leave to cross-examine an affiant. We see no basis for interfering with the trial judge’s decision not to grant leave to cross-examine in this case.

Did the trial judge err by using Mr. Shah’s pretrial silence in assessing his credibility?

[12] Mr. Shah testified in his defence, claiming that the drugs found in a bedroom that he occupied in an apartment he rented belonged to a guest who he allowed to stay over. In cross-examination, the Crown challenged the credibility of that testimony, inappropriately, by confronting Mr. Shah with his failure to provide this account to the police prior to trial so that they could investigate. Mr. Shah’s trial counsel objected before Mr. Shah responded to the inappropriate question. The trial judge did not make a ruling on the objection because after the colloquy between the trial judge and Mr. Shah’s trial counsel the Crown abandoned this line of inquiry.

[13] During the colloquy, when defence counsel said that Mr. Shah’s defence is not an alibi defence (where such questioning would be appropriate), the trial judge agreed, saying, “Right. And that’s why I say it’s akin to an alibi.”

[14] When evaluating Mr. Shah’s credibility in her Reasons for Judgment, the trial judge said:

Now, in assessing the credibility of Mr. Shah’s testimony, I must examine consistencies and inconsistencies. Mr. Shah only provided his version of events yesterday. There were no text messages filed. His uncle, his mother, and Ali did not testify. They were not called by the defence or the Crown.

There is no requirement to call any of this evidence and I draw no adverse inference from this but simply point out that the only way to examine the credibility of Mr. Shah’s testimony is to look for internal inconstancies or consistencies, and also to look at consistency or inconsistency with the agreed facts, and whether or not what Mr. Shah testified to accords with common sense. [Emphasis Added.]

[15] Mr. Shah argues that when the trial judge said, “Mr. Shah only provided his version yesterday”, she erred by considering Mr. Shah’s pretrial silence when evaluating his credibility, which is an error of law: R. v. Rhode, 2009 ONCA 463, 246 C.C.C. (3d) 18, at paras. 13-21. Mr. Shah argues that this improper use is made plain in the context of the trial judge’s comment during defence counsel’s objection to the cross-examination, that Mr. Shah’s defence is “akin to an alibi.”

[16] We rejected this ground of appeal because we are not persuaded that the trial judge relied upon Mr. Shah’s pretrial silence in evaluating his credibility.

[17] First, the trial judge’s comments in response to the objection to the Crown’s cross-examination, including that Mr. Shaw’s third-party suspect defence was “akin to an alibi”, do not support the conclusion that she mistakenly believed that she could consider Mr. Shah’s pretrial silence in evaluating his credibility. When Mr. Shah’s trial counsel submitted that it is not an alibi situation, and that Mr. Shah did not have to say anything to the police, the trial judge agreed. The trial judge then stated explicitly that Mr. Shah does not have to give the police an opportunity to investigate.

[18] Moreover, we are not persuaded that when the trial judge made the impugned comment in her Reasons for Judgment – “Mr. Shah only provided his version of events yesterday” – she was relying on his pretrial silence as a credibility consideration. She made this comment when discussing the evaluation of consistencies or inconsistencies, while describing the evidence that was available for consideration. In this context, it is more likely that she was recognizing that there were no prior statements available to compare to his testimony in order to evaluate consistency or inconsistency. The fact that she also mentioned the absence of text messages immediately after disclosing that there was only one relevant account by Mr. Shah reinforces this interpretation.

[19] Then, the trial judge immediately noted in the following paragraph of her Reasons for Judgment that “[t]here is no requirement to call any of this evidence”. This suggests recognition on her part that, like the other missing evidence she described, proof of prior statements relating to this version of events is not required.

[20] Finally, in the paragraph following the comment - “Mr. Shah only provided his version yesterday”, - the trial judge listed the ways that were open to her to evaluate the credibility of Mr. Shah’s testimony, prefacing that list by saying, “the only way to examine the credibility of Mr. Shah’s testimony is to ….” Pretrial silence is not included in the list of the “only” available ways to examine Mr. Shah’s credibility that the trial judge itemizes.

[21] For these reasons we were unpersuaded by either ground of appeal, and dismissed Mr. Shah’s appeal.

“Janet Simmons J.A.”

“David M. Paciocco J.A.”

“B. Zarnett J.A.”

[1] In his factum, Mr. Shah also challenged the decision of the trial judge to deny him leave to cross-examine the affiant about his inclusion of 2014 narcotics charges that had also been dismissed. He did not press this argument on appeal. On its merits, this ground of appeal would also fail on the following analysis.