Court File and Parties

Court File No.: CR-18-9270 Date: 2020-02-28 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Xiao Chen, Applicant

Counsel: Faiyaz Alibhai, for the Crown Kim Schofield, for the Applicant

Heard: February 28, 2020 Before: Leibovich J.

Ruling on Request to Cross-Examine the Affiant

[1] The applicant challenges the tracking warrants, the general warrant and the search warrant that were issued in this case, arguing that the search was unreasonable and that the evidence obtained pursuant to the search warrant should be excluded. The applicant first seeks leave to cross-examine the one affiant on the information to obtain (ITO) for the tracking warrants, the general warrant and the search warrant. The applicant has provided a list of proposed areas and proposed questions that he wishes to cross-examine. The list is contained at exhibit 4. The applicant also wishes leave to cross-examine the applicant with respect to the confidential informant. For the reasons set out below I will not deal with the confidential informant issue at this time. These reasons address the other areas, referenced in the list contained at exhibit 4.

The Legal Principles

[2] An accused does not have an automatic right to cross-examine the affiant of an ITO in aid of a motion to exclude evidence obtained as a result of the execution of a warrant. The accused must obtain leave from the trial judge. In R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1465, Sopinka J. held that cross-examination of the affiant should be allowed where:

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

[3] This approach was confirmed in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 where Charron J. provided the following useful guidance at para. 40:

[T]he 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 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. [Emphasis added]

[4] Doherty J.A. stated in R. v. Green, 2015 ONCA 579, [2015] O.J. No. 4428 at para. 34 that:

Cross-examination of the affiant will be allowed when the trial judge is satisfied that there is a reasonable likelihood that the proposed cross-examination will assist in determining whether the necessary grounds existed for the issuance of the search warrant.

[5] The ultimate reliability of the information in the ITO is not in issue on a motion to cross-examine the affiant. It is not necessary for the defence to demonstrate that the cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization. As stated by Justice Doherty in R. v. Shivrattan, 2017 ONCA 23, [2017] O.J. No. 210 at para. 49:

The trial judge erred in taking into account his own assessment of the confidential informant's reliability based on his reading of the unredacted ITO to refuse the application to cross-examine the affiant. The ultimate reliability of the information in the ITO is not in issue on a motion to cross-examine the affiant. The trial judge is only concerned with whether there is a reasonable likelihood that the proposed cross-examination would assist in determining whether the grounds existed for the issuance of the warrant. The defence is not required to show that the cross-examination will succeed in demonstrating that unreliability: Green, at paras. 34-36; and Garofoli, at pp. 1463-1465.

[6] A further review of the case law demonstrates that:

1. The proposed cross-examination may be directed at the credibility or reliability of the affiant;
2. Cross-examination that only shows that the information relied upon was false is not likely to be useful unless an inference can be raised that the affiant knew or ought to have known that the information was false. Simply pointing to omissions, inconsistencies, or conclusory or inaccurate statements is not a sufficient basis to permit cross-examination. Put another way, “The focus is on the reasonableness and honesty of the affiant's belief as to the existence of the requisite grounds, and not on the ultimate accuracy of the information relied on by the affiant”;
3. Cross-examination may "undermine" the grounds set out in the ITO either by contradicting information in the ITO or by adding information that was not in the ITO. “The honesty and/or reasonableness of the affiant's grounds for believing that the warrant should issue are the ultimate target of the cross-examination”; and
4. Cross-examination may be allowed on a wider basis 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.

R. v. Sadikov, 2014 ONCA 72 at para. 40, R. v. Pires at paras. 41-43, 60, R. v. Green at paras. 34-36, R. v. Reid 2017 ONCA 430, [2017] O.J. No. 2758 at para. 17.

Positions of Counsel

[7] The applicant wishes to cross-examine on a number of areas to show that misstatements, omissions, exaggerations undermine the grounds necessary to issue the respective orders and that they show a failure to provide full, frank and fair disclosure. This failure is a purposeful attempt to undermine the pre-authorization process; R. v. Strauss, 2017 ONCA 628 at para. 25, R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, leave to appeal refused, [2017] S.C.C.A. No. 81, at para. 66. The Crown argues that the applicant’s attacks are really facial attacks on the ITOs and can be made without any cross-examination. Furthermore, given that the initial warrants merely required that the affiant have reasonable grounds to suspect, a low threshold, the applicant cannot be successful in challenging the warrants, therefore it is a waste of time to allow the applicant to cross-examine the affiant. It would be a fishing expedition.

Analysis

[8] I disagree with Crown’s counsel’s view that leave to cross-examine should be denied because the applicant cannot successfully challenge the warrants. Many of Crown counsel’s submissions were really tailored to the ultimate issue that must be decided, whether the warrants were defective, resulting in an unreasonable search and the exclusion of evidence. It is not necessary at this stage for the defence to demonstrate that the cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization. All I need to be satisfied of is that there is a reasonable likelihood that the proposed cross-examination will assist in determining whether the necessary grounds existed for the issuance of the warrants. In my view, there is a reasonable likelihood that the proposed cross-examination will assist, with respect to the following areas:

1. The description of the applicant’s attendance on Feb 2, 2018 at the “Rebel Night Club”;
2. The description of the applicant having locked eyes on February 22, 2018 with the officer;
3. What the officer meant when he stated that members of the Asian community that are involved in the drug trade tend to transport drugs in gift bags;
4. The potential limits on the Ion scan used at 5 Denby Court on June 6, 2018;
5. The tracking data to support the affiant’s claim that the applicant made short stops in his car; and
6. The omission of the earlier 2016-2017 investigation in the ITO for the tracking warrants.

The description of the applicant’s attendance on Feb 2, 2018 at the “Rebel Night Club”

[9] The police obtained a tracking warrant but their request for an extension was initially denied. In their request after the initial denial, the affiant referenced the observations of the applicant on Feb 2, 2018 at the “Rebel Night Club”. The affiant stated that the applicant was dressed like a 40 year old and not like the other patrons and that the club has been linked to five drug overdoses. The applicant asserts that the affiant, after being denied the extension, inappropriately pumped up the grounds by misleading the justice. The applicant wants to cross-examine the affiant on why this attendance was not mentioned in the first extension request and why he omitted to mention that the applicant attended the club with his wife and another couple. The applicant also wants to know why the proper date for a news article on the club was not included. Cross-examination in this area is appropriate as there is a reasonable likelihood that the proposed cross-examination will assist in determining whether the necessary grounds existed for the issuance of the tracking warrant.

The description of the applicant having locked eyes on February 22, 2018

[10] In ITO #4 the affiant stated that the applicant had become surveillance conscious as exhibited by an incident on February 22, 2018 where the applicant locked eyes with one of the undercover officers that was following him. The applicant states that this observation is not contained in any of the police officers’ notes or anywhere. A willsay by officer Reid that was produced this past month recalling this incident, without any documentation, makes the matter even more suspicious. In my view, brief cross-examination on this ground is appropriate.

What the officer meant when he stated that members of the Asian community that are involved in the drug trade tend to transport drugs in gift bags

[11] I agree that cross-examination in this area would assist for the simple reason of understanding what the affiant meant by this comment, specifically who is captured by the reference to “Asian”.

The potential limits on the Ion scan used at 5 Denby Court on June 6, 2018

[12] The police executed a general warrant at 5 Denby Court on June 6, 2018. The police utilized an Ion scan in which different items at the location were tested positive for cocaine and ketamine. The applicant wishes to cross-examine the officer on the limits of the scan and states that there was evidence led at the preliminary inquiry that such findings are not uncommon. I have not been provided with a copy of the preliminary inquiry evidence on this point. [Crown counsel has a different recollection of the evidence]. It is the applicant’s onus to establish the basis for leave and it would have been helpful to have that evidence before me. However, I will allow the cross-examination as I do find that ultimately it would assist me in resolving the issues.

The omission of the earlier 2016-2017 investigation in the ITO for the tracking warrants

[13] The affiant referenced this earlier investigation in the ITO for the general warrant and the subsequent search warrant but not for the earlier tracking warrants. The applicant wishes to cross-examine the affiant as to why it wasn’t included and states that this is a failure to provide full, frank and fair disclosure. I agree that this is an appropriate area to canvass.

Cross-examination on the tracking data

[14] The applicant wishes to cross-examine the affiant on the source tracking data to show that it does not support the inferences the affiant claims. If this were the only area of proposed cross-examination I would not allow it as Counsel for the applicant can simple use the tracking data and make the requisite oral submissions. However, I do feel that it would be of assistance to myself in keeping track of the various points of information if Counsel for the applicant explored this area, if she wishes, in cross-examining the affiant. This is not a license for counsel to put forward alternate explanations for the stops. This can be done in oral submissions.

No cross-examination with respect to question 3, 6 and 7

[15] I will not allow cross-examination of the affiant with respect to question 3, 6 and 7. I do not think they would assist me in addressing the issues at trial and they are in my view facial challenges to the ITO, which can be done just as easily through oral submissions. For example, I see no benefit in allowing cross-examination of the affiant on the screenshots of the applicant, also contained in the ITO, to challenge the affiant’s conclusion that the applicant’s backpack looked weighted. Similarly, it would not assist me to allow cross-examination on the affiant that the applicant’s stops could be for other non drug trafficking reasons or that a person could visit the back of a plaza without a sinister purpose. Again, these points can be made during oral submissions.

The Confidential Informer

[16] The applicant also seeks leave to cross-examine the affiant with respect to the confidential informant that was used. The redacted ITO contains information respecting the tip provided by the confidential informant but no information regarding their background. The affiant states that Appendix A to the ITO contains complete and detailed information provided by the confidential informant. Appendix A to the ITO has not been disclosed.

[17] The defence seeks to cross-examine the affiant on the confidential informant because they do not have any information about the informant and they state that there is not enough information to satisfy the Debot criteria. Crown counsel resists the ultimate application to set aside the warrant(s) and exclude the evidence obtained by the search on the basis of the redacted ITOs but in the alternative would seek to invoke part 6 of Garofoli and ask the court to follow the procedure set out in R. v. Crevier, 2015 ONCA 619. In anticipation of this, Crown counsel is already working on a proposed judicial summary.

[18] Any ruling I make with respect to leave to cross-examine the affiant on the confidential informant will have to be revisited after the production of the judicial summary, as stated by Rouleau J.A. in R. v. Crevier at para. 86:

If prior to proceeding to step six of Garofoli the reviewing judge has already ruled that the accused would not be allowed to cross-examine the affiant, the reviewing judge should be open to reconsidering this ruling once the judicial summary is provided to the accused. Similarly, if cross-examination of the affiant already occurred, the reviewing judge could consider whether the accused should be allowed to recall the affiant for further cross-examination.

[19] This makes sense, as the landscape for any defence request, if there is one, to cross-examine the affiant will be significantly different with a judicial summary. I do not see any benefit to any party to decide now whether leave should be given to cross-examine the affiant with respect to the confidential informant just to later revisit the issue.

[20] It is not for me to tell the Crown when to invoke part 6 of Garofoli but, as set out above, I have granted the applicant leave to cross-examine the affiant on other issues. The affiant is not currently available to testify because of medical issues. Assuming that this issue is resolved, invoking part 6 after the affiant is cross-examined, risks the possibility that the affiant will have to be cross-examined twice, which is less than ideal in these circumstances.

Justice H. Leibovich Released: February 28, 2020