Court File and Parties
Court File No.: Toronto
Ontario Court of Justice
Between:
Her Majesty the Queen
Ms. C. Lindo-Butler, for the Crown/Respondent
— And —
Jonathan McLean
Mr. D. Berg, for the Accused/Applicant
Heard: October 9, 2012
Decision
NAKATSURU J.:
Overview of the Information to Obtain
[1] The applicant, Jonathan McLean, is charged with a number of offences: possession of a restricted firearm with ammunition, possession of a controlled substance for the purpose of trafficking, two counts of unauthorized possession of a firearm, two counts of careless storage of a firearm, two counts of careless storage of ammunition, two counts of possession of a firearm knowing its possession is unauthorized and two counts of possession of a firearm obtained by the commission of an offence. He has elected trial before a judge and jury. This is the preliminary inquiry that he has requested.
[2] Mr. McLean has brought an application for leave to cross-examine the informant who swore the information to obtain (the "ITO") the search warrant issued on January 23, 2011, for the dwelling house located at 288 Ryding Avenue in the city of Toronto.
[3] I would like to thank both counsel for their thorough presentation of the issues. Despite the able submissions of counsel for the applicant, the application for leave to cross-examine the informant is dismissed.
Overview of the Information to Obtain
[4] The informant for the search warrant is Detective Constable Maurizio Ceresoli. He is assigned to the Organized Crime Enforcement- Guns and Gangs Task Force. D.C. Ceresoli avers that there are reasonable and probable grounds that in the dwelling house of Jonathan McLean at 288 Ryding Avenue, there is a firearm and ammunition which will afford evidence that in January of 2011, Mr. McLean possessed a firearm without proper authorization.
[5] The grounds for the belief are set out in Appendix C to D.C. Ceresoli's ITO. The grounds for his belief have been heavily edited by the Crown. What is left unedited can be briefly summarized. D.C. Ceresoli avers that he is involved in the investigation of a person whose identity has been edited. Information was provided by a confidential source. Sometime in January of 2011, a police officer, whose name has been edited, spoke to this confidential source regarding a male whose identity has been edited. There are then discrete references to "firearms" amongst heavily edited paragraphs. Then there is a description of a house. D.C. Ceresoli states that the confidential source has been advised that there would be criminal consequences to lying to the police. D.C. Ceresoli avers that he believes the information from the source is true and accurate, the source has been cautioned, and the source has no reason to lie. The officer further states that the information has been corroborated and that the target is believed to be Jonathan McLean.
[6] In the ITO, D.C. Ceresoli sets out the investigative checks he did and the surveillance conducted on January 22, 2011. The investigative checks involved searching police data bases. The searches indicated that the applicant lived at 288 Ryding Avenue with other individuals sharing his last name. In addition, they revealed Mr. McLean had previously been investigated for loitering in a high crime area and that in 2009 there was an occurrence where he had been shot in his groin.
[7] The surveillance conducted on January 22, 2011, was at the address of 288 Ryding Avenue. At approximately 7:02 p.m., D.C. Qubaia detected the applicant at the rear of the address in the backyard area. He was observed standing outside for several minutes and then entering the home. At approximately 9:35 p.m., D.C. Mitchell telephoned the number provided by the applicant during an investigation on April 10, 2010, when the applicant was investigated in a vehicle. During the conversation, the male identified himself as Jonathan McLean.
[8] In conclusion, D.C. Ceresoli states he believes that by entering the premise at 288 Ryding Avenue, he will locate a quantity of firearms in the dwelling house.
Issues and Positions of the Parties
[9] The applicant seeks leave to cross-examine D.C. Ceresoli in the following areas:
The reliability of the confidential source. It is submitted that there is nothing in the ITO beyond the bald statement that the source has no reason to provide false information.
The relationship between the information provided by the confidential source and the address of 288 Ryding Avenue. The applicant argues that there is no connection in the ITO between the unedited information provided by the source and the target address. Further, no particulars are provided regarding whether any firearms would be found there.
The efforts made by the police to corroborate the information provided by the source. It is submitted that the data base searches lack detail and reveal little else than the fact the applicant resided at 288 Ryding Avenue in early 2010.
The surveillance conducted on January 22, 2011, and the identification of the applicant by the police. It is argued that the surveillance is very brief and there is no indication how the applicant was identified.
The references to the applicant being investigated for loitering in a high crime area and having been the victim of a shooting. The applicant submits these references are not compelling evidence of any criminal activity and are misleading, irrelevant, and prejudicial.
[10] The test for leave to cross-examine an affiant or informant is set out in R. v. Garofoli, [1990] 2 S.C.R. 1421. The case of R. v. Dawson (1998), 123 C.C.C. (3d) 385 (Ont. C.A.) held that the same procedure and threshold test for leave to cross-examine an informant applies at the preliminary inquiry.
[11] The Crown responds with two arguments. First of all, she argues that the case of Dawson has been overtaken by the jurisprudence and the amendments to the Criminal Code with respect to the conduct of a preliminary inquiry. She forcefully submits that Dawson should not be followed and that there is no jurisdiction on the part of a preliminary inquiry justice to grant leave to cross-examine an informant. The Crown argues that the case law from the Supreme Court of Canada since Dawson has narrowed the scope and function of a preliminary inquiry justice. In addition, the disclosure obligation of the Crown has diminished the discovery function of a preliminary inquiry. The concern for valueless duplication of procedures, pointless prolixity in court proceedings, and needless risk to confidential informers has paved the way for the re-consideration of Dawson. The preliminary inquiry justice's jurisdiction should be confined to issues relevant to committal; cross-examination of an informant is beyond the scope of this purpose. It is further submitted that Bill C-15A which came into force in 2004 was a legislated response to establish more effective and efficient preliminary inquiries. These amendments support the view that applications for leave to cross-examine an informant on an ITO should be reserved for the trial judge.
[12] Alternatively, the Crown submits that if there is jurisdiction, leave should not be granted in this case. The applicant, she argues, has not met the test required for leave to be granted.
[13] The applicant in reply submits that Dawson remains good law and no authority has ever doubted its wisdom.
Jurisdiction to Grant Leave to Cross-Examine an Informant
[14] In Dawson, Carthy J.A. speaking for the court held that the granting of leave to cross-examine witnesses pursuant to the case of Garofoli was not the sole preserve of the trial judge. He held that the legitimate discovery purpose of a preliminary inquiry meant that such applications did not have to wait until trial. He was not persuaded that the discovery function of a preliminary inquiry should be given less emphasis in light of the Crown's obligation to disclose as set out in R. v. Stinchcombe, [1991] 3 S.C.R. 326.
[15] The Crown has relied heavily on the cases of R. v. Hynes, 2001 SCC 82, [2001] 3 S.C.R. 623 and R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 to persuade me that it is open for me not to follow the binding decision of Dawson. The Crown contends that the role of the preliminary inquiry justice has been diminished by these judicial pronouncements and that the foundation underlying the decision in Dawson has, over the course of time, weakened to the point that a lower court could decline to accept the direction of binding appellate authority.
[16] The short answer to this argument is that it is not my role to "overrule" Dawson. Recently, the Supreme Court of Canada has chastised lower courts that jeopardize the legal hierarchy by not following precedent, even when there are strong grounds to criticize such precedent: see Craig v. Canada, 2012 SCC 43 at paras. 18 – 22. The appropriate response in such a circumstance is limited to the court writing reasons why a binding precedent is problematic.
[17] Having said that, I have not been persuaded that Dawson is wrong and has been eclipsed by legal developments in the last decade and a half. In my opinion, neither Hynes nor Pires have altered the fundamental purposes of a preliminary inquiry. Its primary role has always been to determine whether the prosecution has sufficient evidence to warrant committing an accused to trial. However, the ancillary discovery role remains intact. I disagree with the Crown that committal is now the only function at a preliminary inquiry; the rationale behind the decision in Dawson is still approved of by the Supreme Court of Canada.
[18] The issue in Hynes was whether a justice presiding at a preliminary inquiry had the power to exclude statements obtained in violation of the accused's Charter rights. McLachlin C.J. for the majority concluded that a preliminary inquiry justice was not a court of competent jurisdiction to exclude evidence pursuant to s. 24(2) of the Charter. In coming to this conclusion, the Chief Justice in applying the functional and structural test for identifying a court of competent jurisdiction reviewed the purposes of a preliminary inquiry. In doing so, McLachlin C.J. commented (at para. 31):
Overtime, the preliminary inquiry has assumed an ancillary role as a discovery mechanism providing the accused with an early opportunity to discover the Crown's case against him or her: Skogman, supra, at pp. 105-6. Nonetheless, this discovery element remains incidental to the central mandate of the preliminary inquiry as clearly prescribed by the Criminal Code; that is, the determination of whether "there is sufficient evidence to put the accused on trial" (s. 548(1)(a)).
[19] In my view, the majority of the court re-affirms the existing state of the law. There is nothing in Hynes in either the majority or minority decision that undermines the jurisdiction of the preliminary inquiry justice to grant leave to cross-examine an informant of a search warrant.
[20] The case of Pires does not advance the Crown's position either. In that appeal, the Supreme Court of Canada was asked to re-visit the Garofoli requirement for leave to cross-examine the affiant of a wiretap authorization. The appellants argued that cross-examination should be a right. The Supreme Court of Canada rejected the challenge and found the Garofoli approach to cross-examination was consistent with Charter principles even with the statutory amendments to the wiretap provisions. There is nothing in the judgment that touches upon the jurisdiction of a preliminary inquiry justice to grant leave to cross-examine. That being said, there are some passages in Pires on the approach that should be taken on a leave application that are useful in the case at bar. I will comment upon these later in my judgment.
[21] Finally, the Crown position is not improved by consideration of the legislative amendments. There is no question that the intent of Parliament was to streamline preliminary inquiries. Nevertheless, fairness to the accused was also accommodated by the changes. There has now developed in several jurisdictions a body of jurisprudence at the appellate level that have held that the amendments to the Criminal Code have not reduced the ancillary exploratory role or discovery function of the preliminary inquiry: see R. v. Francis (2005), 202 C.C.C. (3d) 147 (Ont. S.C.J.); R. v. P.M. (2007), 2007 QCCA 414, 222 C.C.C. (3d) 393 (Que. C.A.) at para. 78; R. v. Gallant (2009), 2009 NBCA 84, 250 C.C.C. (3d) 29 (N.B.C.A.) at para. 35; R. v. Rao (2012), 2012 BCCA 275, 94 C.R. (6th) 109 (B.C.C.A.).
[22] In conclusion, I find that I do have jurisdiction to entertain an application for leave to cross-examine the informant.
The Approach to a Dawson Application at a Preliminary Inquiry
[23] While I have rejected the Crown's argument on jurisdiction, I do appreciate that some of the arguments she has made are not without merit. To put it bluntly, it seems incongruous and improvident that a preliminary inquiry justice will hear a leave application and potential cross-examination of an affiant or informant when the same efforts will have to be duplicated at trial. Obviously, I recognize that there are many issues touched upon at a preliminary inquiry which are material only to discovery and preparation for trial. These include Charter issues: see Re Cover and the Queen (1988), 44 C.C.C. (3d) 34 (H.C.J.) and R. v. George (1991), 69 C.C.C. (3d) 148 (Ont. C.A.). In my estimation, there is nothing wrong in utilizing the preliminary inquiry for such purposes and often times the process has significant benefit by sharpening the focus of the parties as to the legal issues to be litigated at trial. Nevertheless, the concern about the prolixity of proceedings which informs the Garofoli test for leave is significant when a Dawson application is brought at the preliminary inquiry and then, later, the same application is brought at trial.
[24] Before turning to the analysis that I believe should govern at a preliminary inquiry, I would like to make the following observation. Instead of removing jurisdiction from the preliminary inquiry justice, the concern about prolixity and the efficient use of judicial resources can be addressed, not only more informally but also more effectively by the promotion of the narrowing of issues and the encouragement of mutually agreeable positions regarding cross-examination. Rather than litigating whether the threshold for cross-examination has been met, something that invariably takes up a great deal of time and effort, if the Crown and the defence are able to come to an agreement, the administration of justice is invariably better served. This agreement could be accomplished by establishing specific questions or narrow areas of cross-examination of the informant or affiant. As well, better out-of-court disclosure by the Crown in response to specific defence requests could eliminate the need for cross-examination altogether. Of course, any agreement would be without prejudice to the position the parties may take at trial. Let me emphasize, without some cooperation by the Crown, the accused is often in a poor position to satisfy himself or herself that there was a proper basis for the search warrant or wiretap authorization in the absence of an opportunity to cross-examine on key points or further disclosure responsive to specific defence concerns. If given that information or opportunity to cross-examine, not only would an application at the preliminary inquiry stage be unnecessary, but also it is foreseeable that the defence may decide a leave application to cross-examine at trial is meritless or tactically unworthy of pursuit. On the other hand, from the perspective of the Crown, surely it would be in keeping with the Crown's role as a minister of justice that if there is information that could undermine the validity of a warrant or order, it would be in the interests of justice to have this disclosed.
[25] In past cases, I have had such collaboration between the parties and from my experience the process has worked to the satisfaction of all and has expedited matters significantly.
[26] Additionally, I point out that Parliament's amendments regarding the conduct of a preliminary inquiry have now better equipped a preliminary inquiry justice to facilitate those discussions and agreements. Section 536.4 of the Criminal Code now empowers the justice to order even on the justice's own motion, a focus hearing whereby issues can be narrowed, witnesses identified, and parties encouraged to consider matters that would promote a fair and expeditious inquiry. Dispensing with a formal Dawson application would fall squarely into s. 536.4.
[27] In this case, agreement could not be reached. As a result, the Crown and the defence are entitled to my decision based upon the application of the law to the facts of this case. Before launching into the specifics of that application, I will address what is in my view, the proper approach a preliminary inquiry justice should take to such a leave application; an approach, depending on the particular facts of the case, potentially different from that taken by a trial judge.
[28] First of all, I recognize that Dawson accepts the Garofoli test and applies it to the preliminary inquiry. The case does not distinguish between the approach by the trial judge and a preliminary inquiry justice. However, the core issue considered by the court in Dawson was jurisdiction. It did not involve the question of how the Garofoli test should be applied in the context of the preliminary inquiry.
[29] Before assessing that contextual factor, I hasten to point out that the Garofoli test is not different in terms of threshold or scope per se at a preliminary inquiry. Rather it may be dissimilar in its application. Whether this amounts to any practical effect will depend on the specific facts of the individual case.
[30] Hearkening back to my earlier comment, it is here that I will make more particular reference to the Supreme Court of Canada's decision in Pires. In rejecting the appellants' argument in Pires that Garofoli should be reconsidered and that there should be a right to cross-examine the affiant without a leave requirement, Charron J. emphasized the importance of the context in which cross-examination was being requested (at para. 3 and para. 24):
There is no question that the right to cross-examine is of fundamental significance to the criminal trial process. However, it is neither unlimited nor absolute. The extent to which it becomes a necessary adjunct to the right to make full answer and defence depends upon context. The Garofoli threshold test requires that the defence show a reasonable likelihood that cross-examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewing judge. It is grounded in two basic principles of evidence: relevance and materiality. It is also born out of concerns about the prolixity of proceedings and, in many cases, the need to protect the identity of informants. [Emphasis added]...the accused's right to an evidentiary hearing must be considered in context. It must be balanced against countervailing interests, including the need to ensure that the criminal trial process is not plagued by lengthy proceedings that do not assist in the determination of the relevant issues. As I will explain, the appellants' argument ignores important contextual factors. When the proposed cross-examination of an affiant is considered in the context of the review hearing and its narrow scope, it is my view that the Garofoli leave requirement strikes an appropriate balance between those competing interests.
[31] Charron J. then reviewed the contextual factors at play at a s. 8 challenge at trial: the right to full disclosure, the difference between the right to test evidence at trial on the merits and the threshold evidentiary hearing to determine the admissibility of evidence, the concern for the prolixity of proceedings and the need to protect informers. The latter two factors were most pertinent to the additional requirement of leave on top of the proper limits with respect to the scope of cross-examination.
[32] All these contextual factors are also prevalent at the preliminary inquiry. At the same time, there are significant differences. Overarching is the fact that the requested cross-examination is being sought only for discovery purposes. The preliminary inquiry justice has no jurisdiction to offer a remedy for a Charter breach. The interest of the accused is substantially diminished from his or her interest at a Garofoli application brought at trial which involves the admissibility of evidence; which in turn is even less than the right to cross-examine engaged at trial where the guilt or innocence of the accused is at stake. In other words, since the right to make full answer and defence and the attendant right of cross-examination are more attenuated at a Charter hearing on the admissibility of evidence than at the trial on the merits, then using the same logic, the same rights at a preliminary inquiry where only the ancillary discovery purpose is involved, must be even more attenuated. Thus, in principle, there is no reason why a greater restriction upon cross-examination cannot be tolerated at a preliminary inquiry.
[33] Furthermore, the rationales for the two countervailing factors mentioned by Charron J., the concern for the prolixity of proceedings and the need to protect informers, are heightened at a preliminary inquiry. On the subject of the concern about prolixity and the constructive use of judicial resources, Parliament has spoken on the matter with the new amendments. While they do not fundamentally change the purposes of a preliminary inquiry, unquestionably they have changed the manner in which they are conducted. In promoting more efficient and expeditious proceedings, preliminary inquiry justices are encouraged to exercise greater control over them. Parties must now request a preliminary inquiry and the issues and witnesses must be identified. Credible and trustworthy evidence may be received. A justice has now been expressly empowered to terminate any examination or cross-examination that is abusive, too repetitive, or otherwise inappropriate.
[34] In my judgment, it is the factor pertaining to the need to protect confidential informers that has the most significant practical effect on a Dawson application. The need to protect the identity of confidential informers is well-recognized and established: see R. v. Liepert, [1997] 1 S.C.R. 281 at paras. 9, 12, 14, 23 – 25. The fact that this privilege along with other evidentiary privileges is being asserted at a preliminary inquiry rather than at trial has noteworthy ramifications. In R. v. Richards (1997), 115 C.C.C. (3d) 377 the Ontario Court of Appeal recognized the restricted nature of the powers of a preliminary inquiry justice when it came to the resolution of privilege claims. Firstly, the court held that a police informant privilege claim made at a preliminary inquiry was always effective if disclosure of the information could directly or indirectly identify a police informant. This was because the only exception to the prohibition against disclosure, the "innocence at stake" exception, cannot operate at a preliminary inquiry since an accused could only claim his or her innocence was at stake at trial. The privilege at issue in Richards was the qualified privilege of police investigative privilege. The court held that a preliminary inquiry justice had the jurisdiction to consider this and to make an evidentiary ruling in this regard. Then again, the court acknowledged that the trial judge would be in a better position to adjudicate the issue by balancing the public interest in non-disclosure against the accused's right to make full answer and defence. In concluding this, it was significant that the interests of the accused at a preliminary inquiry amounted to whether the requested disclosure could affect the issue of committal and/or whether the disclosure could provide timely discovery of information that could ultimately be ordered disclosed at trial and be used to assist the accused in making full answer and defence. While the court accepted the validity of the latter interest, it held that in most cases, disclosure of a police investigative technique would be refused at the preliminary inquiry stage (at para. 13):
Here, there was some public interest demonstrated in the non-disclosure of the information sought by the appellant, particularly as that information related to the location of the observation post. Balanced against that consideration, there could be no claim that disclosure of the information would lead to the discharge of the accused. He was going to be committed for trial regardless of whether that information was disclosed. Nor, in these circumstances, would delaying the disclosure until the matter was before a trial judge cause any prejudice to the appellant. While it can be safely said that the earlier disclosure is made the better, the appellant's interests could be adequately protected by a pre-trial motion for disclosure brought before the trial judge. On such a motion, the trial judge would address the competing interests based on the circumstances as they existed at the time of the motion. Indeed, the passage of time may obviate the need for the Crown to advance the claim in some cases.
[35] In my opinion, in most cases, the trial judge hearing a Garofoli application is in a superior position to a preliminary inquiry justice in deciding whether the threshold for leave has been met and what scope should be afforded to cross-examination when the accused wishes to cross-examine the affiant or informant in this sensitive area. To start, significant risks to confidential informers can arise from even the slightest piece of information elicited in questioning if it narrows the pool of people who may have the same characteristics or identifiers as the informer: see R. v. Omar (2007), 2007 ONCA 117, 218 C.C.C. (3d) 242 at para. 44 (Ont. C.A.). Secondly, the very nature of cross-examination increases the risk that the informer's identity will be revealed. In Pires, the following passage from McLachlin J.'s (as she then was) dissenting judgment in Garofoli was approved of (at para. 36):
Cross-examination is much more likely to reveal the details of investigative operations and the identity of informers than affidavits, which can be carefully crafted to avoid such pitfalls. How can one cross-examine an officer on the reliability of an informant without probing details that might reveal that informant's identity, for example? Once a damaging statement is made in answer in cross-examination, editing is to no avail....Attempts to restrict the scope of cross-examination are notoriously fallible. Since effective cross-examination usually depends on considerable latitude in questioning, a restricted cross-examination may be of little value. Moreover, it is often difficult to predict when a particular question will evoke a response that trenches on a prohibited area.
[36] It is true that this risk is posed by cross-examination whether it is at trial or at a preliminary inquiry. However, it seems to me that to assume this risk on two separate occasions unreasonably invites potential calamity to the safety of a confidential informer; especially when at the preliminary inquiry the only interest being served is a discovery function.
[37] In addition to this potential risk to informers, the decision in this area is, in some ways, premature and could cause harm to the trial process. As in case before me, ITOs are often heavily edited to protect the identity of confidential informers or other privileged information. There is no jurisdiction on the part of a preliminary inquiry justice to review the editing done and to order disclosure. On the other hand, the trial judge at a Garofoli hearing has at his or her disposal the six step procedure outlined in Garofoli (at para. 79):
Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefore. Only Crown counsel will have the affidavit at this point.
The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.
After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.
After the determination has been made in (3), the packet material should be provided to the accused.
If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.
If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.
[38] It is the trial judge who reviews the editing. Again, in Garofoli, the court sets out the appropriate considerations in the editing process (at para. 78):
The question remains as to the extent of editing and the procedure to be followed. Since there will be more than one method of striking a proper balance between the interests of law enforcement and of the right to make full answer and defence, I would not wish to place trial judges in a "strait-jacket" by laying down iron-clad rules with respect to editing. In deciding what to edit, the following factors outlined by Watt J. in R. v. Parmar (1987), 34 C.C.C. (3d) 260 (Ont. H.C.), at pp. 281-82, commend themselves to me:
(a) whether the identities of confidential police informants, and consequently their lives and safety, may be compromised, bearing in mind that such disclosure may occur as much by reference to the nature of the information supplied by the confidential source as by the publication of his or her name;
(b) whether the nature and extent of ongoing law enforcement investigations would thereby be compromised;
(c) whether disclosure would reveal particular intelligence-gathering techniques thereby endangering those engaged therein and prejudicing future investigation of similar offences and the public interest in law enforcement and crime detection, and
(d) whether the disclosure would prejudice the interests of innocent persons.
[39] On a Dawson application, should the accused seek leave to cross-examine in areas that may directly or indirectly touch upon an edited portion of the ITO, the trial judge's review and balancing function may well be pre-empted and adversely affected. In short, the ITO could in effect be de-edited by allowing the cross-examination. This may not identify the confidential informer or cause harm in other ways since it may well be that edits were overbroad or unnecessary. Nevertheless, such cross-examination surely goes beyond the limited role of a preliminary inquiry and intrudes into what should be the jurisdiction of the trial judge tasked with the review of the editing.
[40] It could be asked what the prejudice is since the informant or affiant could simply refuse to answer on the basis that the answer could compromise the edits done. However, such an answer itself can furnish information about what has been edited and may cause irreparable injury to the interests the edits were meant to protect.
[41] Conversely, from the perspective of the accused, waiting until the trial judge reviews the editing process, provides judicial summaries, or even engages in step 6 of the Garofoli procedure, could very well lend support to obtaining leave to cross-examine the informant or affiant and assist in determining areas worthy of pursuit for cross-examination. As it often stands before a preliminary inquiry justice, a heavily edited ITO provides little beyond a speculative basis to seek leave to cross-examine. Thus, to defer cross-examination until trial does not always work to the accused's disadvantage.
[42] In bringing together the strands of the contextual analysis of the right to cross-examine, the limited ambit of a preliminary inquiry justice in dealing with privilege issues as reflected in Richards, and the heightened countervailing factors of the concern for the prolixity of proceedings and the need to protect informants, it seems to me that there remains little scope for cross-examination in areas which involve privilege. Even the most cautious and conservative of questioning in such sensitive areas would only prolong the proceedings and raise significant risks to important public interests. Conversely, to defer these issues until trial would not cause any significant prejudice to the accused who will be permitted to bring the same application at trial.
[43] In a nutshell, the trial judge who can deal with the Garofoli application in a wholistic manner will be in the best position to address the question of leave to cross-examine on issues relating to confidential informers or other forms of privilege.
Application of the Approach to the Case at Bar
[44] In Garofoli, Sopinka J. articulated the test for leave in the following manner (at para. 88):
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 pre-conditions to the authorization, as for example the existence of reasonable and probable grounds.
[45] The threshold test is not an onerous one. The Garofoli leave requirement is a screening mechanism to weed out unnecessary proceedings on the basis that they are unlikely to assist in the determination of the relevant issues: see Pires at para. 40. While the applicant did not present any evidence on this application, it is not always essential to do so: see R. v. Williams, [2003] O.J. No. 5122 (C.A.) at para. 11.
[46] Let me then address the first two areas of proposed cross-examination: the reliability of the confidential source and the relationship between the information provided by the confidential source and the address of 288 Ryding Avenue. This area of cross-examination falls squarely into the above analysis regarding the approach to be taken at a preliminary inquiry. Without commenting on whether such questioning should be permitted at trial and without prejudice to the applicant renewing his request at trial, I find that the onus for leave to cross-examine with respect to these proposed lines of questioning has not been discharged.
[47] The applicant seeks leave to cross-examine D.C. Ceresoli on his references to the applicant being investigated for loitering in a high crime area and having been the victim of a shooting. He submits that they are not compelling evidence of any criminal activity and are misleading, irrelevant, and prejudicial. I should note that these references came up during investigative checks done on the address of 288 Ryding Avenue and the name Jonathan McLean. It was during the checks that the officer came across these occurrences connecting the name and the address. The only probative value of these statements is that connection between the applicant and address. The alleged prejudicial details are merely the background to the contacts between the police and the applicant.
[48] I agree that if one took the references beyond the appropriate limits of their use, this would be irrelevant and even prejudicial. However, this is apparent on the face of the ITO. These weaknesses can be readily addressed in submissions on the s. 8 application and I cannot see how cross-examination would advance the inquiry. With respect to any alleged misleading aspect, there is nothing before me to suggest they are misleading. The applicant has not proffered any evidence, aside from an affidavit attaching the ITO, in support of his request for leave to cross-examine. Further, there is nothing within the body of the ITO that suggests that these references are somehow inaccurate or misleading. Simply alleging potential weaknesses in the ITO does not establish grounds for cross-examination. They may be fruitful points to make on argument but standing alone in these circumstances, they do not meet the threshold test: see R. v. Riley, [2008] O.J. No. 4893 (S.C.J.) at para. 11; R. v. Pham, [2009] O.J. No. 4296 (S.C.J.); R. v. Ahmad, [2009] O.J. No. 6161 (S.C.J.).
[49] The final area of proposed cross-examination deals with the police efforts to confirm the applicant resided at 288 Ryding Avenue. It is unclear to me exactly why the applicant wishes to cross-examine D.C. Ceresoli regarding this. It is alleged in his notice of application that the search of the police data bases revealed the applicant resided at the address in question in early 2010. However, the staleness of this information is self-evident on the face of the ITO. This submission suffers from the same frailty as noted above. Secondly, it is argued that the police telephoned a number whose relationship to the address is not evident. This is not accurate. The ITO states that the telephone number was provided by the applicant during the investigation by the police on April 10, 2010, when he was stopped in a motor vehicle. Finally, the applicant argues that during the surveillance of 288 Ryding Avenue on January 22, 2011, the applicant was observed at the rear of the address in the backyard area. The applicant submits that the ITO does not reveal how the applicant was identified.
[50] I recognize that this last observation by the police purports to be very recent information tying the applicant to the address the police wanted to search. In other cases, this could be a fruitful area for cross-examination. If the identification of the individual said to be the accused was unreliable, then this may sever the connection between the subject of the investigation and the target address. After some deliberation, I have concluded that the applicant has not met the threshold for leave for this final area of cross-examination.
[51] To begin with, D.C. Ceresoli did not make these observations. It was D.C. Qubaia who observed the applicant at 7:02 p.m. The applicant has not requested leave to cross-examine D.C. Qubaia, a sub-affiant.
[52] Secondly, it must be remembered that even if the identification made by D.C. Qubaia was successfully challenged, the search warrant was being sought at an investigative phase. Provided that D.C. Ceresoli made full and frank disclosure, he was entitled to rely on information provided to him, even if that information in hindsight turns out to be inaccurate. Of course, the defence could suggest that D.C. Ceresoli's own credibility may be undermined by cross-examination on this: see Pires at paras. 65 – 69. However, the applicant has not pointed to any material or ground that indicates any reasonable likelihood that cross-examination would advance this inquiry or impact on the question of the admissibility of the evidence: see Pires at para. 31.
[53] Finally, I am of the view that nothing is likely to be gained by the cross-examination even if it elicited information useful to the defence about the surveillance. This is so because there is no reasonable likelihood that it would undermine the basis of the search warrant. To sustain the warrant there must be reasonable grounds that an offence has been committed and that the search of 288 Ryding Avenue will afford evidence of that offence. This ITO has been heavily edited. What is left are mere conclusory statements and D.C. Ceresoli's belief that a search of the target address would reveal a firearm. There is no stated relationship between 288 Ryding Avenue and Jonathan McLean and any information provided by the confidential source. Indeed, there is no information about any criminal offence having been committed. As it stands, the edited ITO provides no basis for the search warrant. This highlights the rationale why the question of leave to cross-examine and the scope of that cross-examination are best addressed at trial when the parties and the trial judge, after a review of the editing, will be in a superior position to assess what is required for the conduct of a Garofoli application.
[54] As an aside, it seems to me that this area of proposed cross-examination is one that would be most conducive to a further disclosure request. D.C. Qubaia's notes could furnish the defence with all the information required as to how the man in the backyard was identified to be the applicant.
[55] The last point that needs to be attended to is the applicant's submission that cross-examination is required for discovery of the s. 24(2) issue at trial. In other words, even if the edited ITO does not pass constitutional scrutiny at trial, the defence must still prove under s. 24(2) that the admission of the evidence would bring the administration of justice into disrepute. To do so, it is argued, requires an evidentiary foundation to be laid through cross-examination of the informant.
[56] I have considerable sympathy to the applicant's position. The analysis in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 requires the trial judge to consider the seriousness of the Charter-infringing state conduct. Whether the informant failed in his or her duty to make full and frank disclosure may be a critical. In R. v. Blake (2010), 2010 ONCA 1, 251 C.C.C. (3d) 4 (Ont. C.A.), a heavily edited ITO was held to be insufficient to support the issuance of a search warrant. However, when it came to the s. 24(2) analysis, the Court of Appeal held that the first line of inquiry under s. 24(2) favoured admissibility since the reason the search was found to be unreasonable was that the ITO was unsustainably edited to protect confidential informers. It did not fall because of any police misconduct. Doherty J.A. stated (at para. 32 and 33):
The impact on the appellant's s. 8 rights points strongly toward exclusion. How does one balance these directly conflicting assessments? Without diminishing the important negative impact on the appellant's legitimate privacy interests occasioned by the unreasonable search, I find compelling the argument that the exclusion of reliable crucial evidence in circumstances where the propriety of the police conduct stands unchallenged would, viewed reasonably and from a long-term perspective, have a negative effect on the repute of the administration of justice.
Absent any claim of police misconduct or negligence in the obtaining of the initial search warrant, and absent any attempt to go behind the redacted information, it would be inappropriate to proceed on any basis other than that the police conducted themselves in accordance with the applicable legal rules. If there were a taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused's legitimate privacy interests. I can see none. The evidence is admissible under the approach to s. 24(2) set out in Grant.
See also R. v. Learning (2010), 2010 ONSC 3816, 258 C.C.C. (3d) 68 (Ont. S.C.J.) at paras. 111 – 114.
[57] Where the accused challenges the edits or cross-examines the informant and demonstrates that the drafting of the ITO was not reasonably diligent or sufficiently mindful of the duty to make full and frank disclosure, the seriousness of the Charter-infringing conduct may support exclusion of the evidence: see R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at paras. 99-103; R. v. Rocha, 2012 ONCA 707, [2012] O.J. No. 4991 (C.A.) per Rosenberg J.A. These cases highlight the potential importance of a sub-facial attack when it comes to the ultimate question of the admissibility of the evidence.
[58] All that being said, I am of the view that the applicant has failed to show any basis for me to permit cross-examination for discovery with respect to s. 24(2). Of course, given the heavily edited ITO, the task of the applicant is difficult. It would only be speculative to suggest that D.C. Ceresoli provided to the justice of the peace inaccurate or misleading information to secure the search warrant. No materials have been submitted suggesting he did. This accentuates the significance of the editing review at trial. Indeed, Doherty J.A. was influenced in his s. 24(2) analysis by the defence decision at trial not to even request a review of the edits. Without such a review or some other evidentiary basis, either arising from the wording or structure of the ITO itself or from some extrinsic material, it is my conclusion that this application for cross-examination is without merit. While there remains a discovery function to a preliminary inquiry, when leave is required for cross-examination, the preliminary inquiry should not become a fishing expedition for potential s. 24(2) issues at trial.
[59] For these reasons, the application is dismissed.
Released: November 13, 2012
Signed: Nakatsuru J.