Court File and Parties

COURT FILE NO.: CR-17-30000369-0000 DATE: 20170510 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – MICHAEL MAJEED Applicant

COUNSEL: J. Hanna, for the Respondent C. Bottomley, for the Applicant

HEARD: May 9, 2017

JUSTICE NAKATSURU: (Orally)

Endorsement

[1] The applicant, Michael Majeed stands charged with a series of fraud-related offences that were laid as a result of a police investigation named Project Terrier. The police obtained a search warrant to enter the applicant’s home and seize an internet router. The defence challenges the validity of the search warrant under s. 8 of the Charter as an unreasonable search and seizure.

[2] The applicant seeks leave to cross-examine the affiant, D.C. Sarath Thayalan, on the Information to Obtain (ITO) that he swore in order to obtain the search warrant. He submits that the affiant misled the issuing justice. He seeks to have the warrant set aside as being subversive of the process.

[3] The respondent opposes the application. He submits that no basis has been shown for me to exercise my discretion to permit such cross-examination.

[4] I am mindful of my proper role as a reviewing judge. This is clearly set out in the seminal case of R. v. Garofoli, [1990] 2 S.C.R. 1421 at p. 1452:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[5] The test for leave to cross-examine has been stated in this way in R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343 at para. 40:

As discussed earlier, the Garofoli leave requirement is simply a means of weeding out unnecessary proceedings on the basis that they are unlikely to assist in the determination of the relevant issues. 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 [page367] just a narrow basis upon which an authorization can be set aside. Hence, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focussed on the question to be determined on a Garofoli review -- whether there is a basis upon which the authorizing judge could grant the order. If the proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted. However, if the proposed cross-examination falls within the narrow confines of this review, it is not necessary for the defence to go further and demonstrate that cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization. Such a strict standard was rejected in Garofoli. A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown.

[6] In this case, the Crown has pointed out that the applicant does not challenge the fact that even apart from the alleged deficiencies in the ITO, the remaining grounds are sufficient to sustain a basis for the issuance of the search warrant.

[7] Of course, I am alert to this fact. However, the defence challenge is based upon a residual discretion on my part to set aside a search warrant that is otherwise found to be valid. The existence of this discretion was made clear by the Ontario Court of Appeal in the recent decision of R. v. Paryniuk, 2017 ONCA 87, [2017] O.J. No. 474 at paras. 68 - 69. After a discussion of some of the leading and perhaps contradictory authorities on this issue, Watt J.A. stated:

The respondent may also be right about the Araujo court's use of the decision in Morris. Araujo contains no explicit adoption of the residual discretion of which Cromwell J.A. wrote in Morris. Nor for that matter, a consideration of how such a discretion squares with the Garofoli edict that the sole impact of fraud and non-disclosure is to determine whether there continues to be any basis for the decision of the authorizing judge.

What is clear, however, is that previous authority in this court has recognized a residual discretion to set aside a warrant despite the presence of a proper evidentiary predicate for its issuance where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like: Colbourne, at para. 40; R. v. Kesselring (2000), 145 C.C.C. (3d) 119, at para. 31; Lahaie, at para. 40; Vivar, at para. 2. Courts of appeal in other provinces have reached the same conclusion: Bacon, at para. 27; Evans, at paras. 17, 19; R. v. McElroy, 2009 SKCA 77, 337 Sask. R. 122, leave to appeal refused, [2009] S.C.C.A. No. 281, at para. 30; Morris, at paras. 90, 92.

[8] The Crown has queried whether an opportunity to cross-examine an affiant should exist when the specific allegations that are central to the existence of reasonable grounds necessary to justify the granting of the warrant are not targeted and the attack is only based upon this residual discretion to exclude. In my view, I cannot see why in principle it should be different. While I appreciate that cross-examination on issues only relevant to the admissibility of the evidence pursuant to s. 24(2) of the Charter is not permitted (see R. v. Green (2015), 2015 ONCA 579, 22 C.R. (7th) 60 (Ont. C.A.) at para. 41), cross-examination directed at proving the subversion of the search warrant process challenges the validity of the warrant as much as the existence of reasonable grounds. Further, in Green, supra, at para. 36, Doherty J.A. acknowledged that leave to cross-examine an affiant can be permitted even when the grounds for the warrant are not directly challenged:

Sometimes the motion to cross-examine the affiant is made on a wider basis. An accused may argue that the ITO contains statements that are deliberately misleading and sufficiently significant to place the credibility of the entire ITO in issue. Pires, at para. 63, holds that if there is a reasonable basis to believe that an affiant has deliberately attempted to mislead the authorizing judge in some part of the ITO, cross-examination should generally be allowed.

[9] The respondent further argued that the areas where the applicant seeks leave to cross-examine does not raise any realistic concern that the affiant deliberately attempted to mislead the justice of the peace. On the other hand, the applicant submits he requires cross-examination to establish this. Furthermore, he points to some comments made by the court in R. v. Kesselring (2000), 145 C.C.C. (3d) 119 (Ont. C.A.) at para. 32 that seems to suggest that even apart from deliberate deception, there may be cases where a lack of care will be sufficiently serious that an otherwise valid search warrant could be set aside.

[10] To assess these submissions, I must have regard to the three areas that leave is being sought:

• The applicant alleges that the issuing justice was misled when he was told by the affiant that he received a physical description of the applicant from a Halton Regional Police officer.
• The applicant alleges that the issuing justice was deceived when he was told by the affiant that a distant relative had received money from the applicant that was directly obtained from a loan fraud.
• The applicant alleges that the issuing justice was deceived when he was told by the affiant that the applicant was seen multiple times by a contractor at the home of another person who was alleged to be in the top tier of the fraud scheme.

[11] Regarding the first area of cross-examination, the Crown submits that this is simply the applicant misreading the ITO since the affiant avers that he not only received this information from the said Halton police officer but also from various law enforcement databases. The defence counters that at the preliminary inquiry, the affiant said nothing about receiving the information of the description from the Halton officer. Nor did he make a note of it in his police notes. The material relevance of potential deception is that it is alleged that subsequent identification processes were based at least in part on this description. While the Crown may well be right there may be an innocent explanation for why the affiant testified as to the way he did at the preliminary inquiry. I find there is a realistic likelihood that cross-examination would assist me in my determination. It may be just a misinterpretation of the affidavit. On the other hand, cross-examination could reasonably lead to evidence justifying an inference that the affiant attempted to mislead the issuing justice of the peace when he phrased the averment in the manner that he did.

[12] With regards to alleged deception about the relative receiving fraudulent funds from the affiant, the materiality of this information for the issuance of the search warrant is obvious. However, again the Crown responds that this is a misinterpretation of the averment. That the affiant never said nor did he intend to say that this information was anything but information based upon hearsay told to the relative as to the source of the funds. The applicant has provided me portions of the interview by the police of this relative where it is revealed that he had no firsthand knowledge that the funds came from the applicant’s loan fraud. In my view, it is a reasonable interpretation of the ITO that the information provided to the police by this relative was that the fraudulent funds were directly given to him by the affiant. This was potentially a misleading and deceptive statement. Cross-examination on this point would further my determination whether it was in fact deceptive or meant to be deceptive by the affiant.

[13] Finally, with respect to the last area, the interview with the police revealed that rather than multiple times, the witness stated he only saw the affiant at the home of the co-conspirator “one or two” times. The applicant also argues that the interview shows the affiant improperly leading this witness to a state of certainty about this belief. While I must say this is a more minor point, I must consider it in the context of the other two areas of cross-examination that is being sought. In my opinion, there is a realistic potential that cross-examination could support an inference relevant to the existence of a deceptive pattern of conduct or a significantly careless attitude on the part of the affiant.

[14] I agree with the Crown that after cross-examination, the evidence may not show actual deception given the potential innocent explanations for these inaccuracies or contradictions. But cross-examination may lead me to a different conclusion. A conclusion more favourable to the applicant. That is the whole point of cross-examination. At this point, based on the record, I am satisfied that the foundation has been laid to permit the leave application.

[15] However, even beyond that response to the Crown argument, there is an even more fundamental one. The applicant is not required to show there is a reasonable likelihood that cross-examination will show deceit. Rather the test is that there is a reasonable likelihood that cross-examination will assist me in making that determination. Sitting on a Garofoli review, I appreciate that the scope of that review is limited. However, if the issues fall properly within that scope of review, what matters is whether cross-examination will help me properly conduct that review, not whether cross-examination will ultimately benefit the party challenging the validity of the judicial authorization.

[16] I also agree that given the overall nature of the ITO, these discrete matters challenged by the affiant do not easily support a proposition that the affiant deliberately tried to deceive the issuing justice of the peace on material matters. In other words, simply pointing to these three areas of potential deception is not something that is likely to readily invalidate the search warrant. That said, the results of cross-examination cannot be predicted. Further the applicant is not required to make his submissions now without being given a reasonable opportunity to create the record upon which to argue his case. What I can say is that I am satisfied that the test for leave to cross-examine, which is characterized as a threshold that is not onerous, has been met in this application.

[17] Let me conclude by saying that I am sensitive to the fact that an overly liberal approach to leave when an applicant seeks to anchor his challenge to a search warrant in this residual discretion rather than, more traditionally, based upon the lack of reasonable grounds, does raise the underlying concerns which supports the rationale for the leave requirement in the first place. Such concerns are the prolixity of the proceedings, the protection of judicial resources, and the need to protect informants. Further, I recognize that this residual discretion potentially expands the relatively narrow basis for exclusion that generally is permitted by the authorities. Indeed, in most cases even inaccuracies, falsehoods, or material non-disclosure will not necessarily detract from the existence of statutory pre-conditions.

[18] However, balanced against this is the fact that challenges to the validity of the warrant in this manner are still permitted on the present state of the law. Where there is a reasonable likelihood that cross-examination will impact on the question of admissibility, cross-examination should be permitted although it may involve broader questions regarding the effect of the reliability and credibility of affiant’s statements. To me, it makes no sense to impose stricter considerations on cross-examination when the attack is based on a subversion of the search warrant process than when a more technical challenge is made regarding the existence of reasonable and probable grounds.

[19] All that being said, given the potential for abuse of such applications for leave, any application must be properly scrutinized. To ensure the objective of the leave requirement to weed out unnecessary proceedings is met, I must remain focused on the question of the test to be applied in the Garofoli review.

[20] Here the applicant seeks a focused cross-examination in three discrete areas of the ITO. The cross-examination is not likely to be long. The applicant has provided a factual foundation that raises a reasonable likelihood that the cross-examination will assist me in determining a material issue. This is not a fishing expedition. He has pointed to sources extraneous to the ITO that supports his position of deception. The issue I need to decide on this Garofoli review is whether I should exercise my discretion in the fashion the applicant ultimately wishes me to. It is not required that the applicant persuade me at this point that he can. After all, that is the very reason why he seeks cross-examination. To determine whether the evidence will be able to meet the high threshold required to set aside this search warrant on that basis. In my conclusion, to deny the applicant an opportunity to do so, in the specific circumstances of this case, would work an injustice.

[21] Therefore, leave to cross-examine P.C. Thayalan is granted in those three areas requested by the applicant.

Justice S. Nakatsuru Released: May 10, 2017

COURT FILE NO.: CR-17-30000369-0000 DATE: 20170510 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – MICHAEL MAJEED

REASONS FOR JUDGMENT NAKATSURU J. Released: May 10, 2017