COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Green, 2015 ONCA 579
DATE: 20150824
DOCKET: C54449
Hoy A.C.J.O., Doherty and Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Michael Green
Appellant
Jonathan Dawe and Michael Dineen, for the appellant
Susan Magotiaux, for the respondent
Heard: May 19, 2015
On appeal from the convictions entered by Justice Thomas A. Bielby of the Superior Court of Justice, sitting without a jury, on September 20, 2010.
Doherty J.A.:
I
[1] The appellant was convicted of various firearms offences and possession of marihuana. The charges arose out of the execution of a search warrant at the appellant’s residence in Brampton, Ontario. The police found and seized approximately 200 grams of marihuana from a bureau in the dining room and a loaded semi-automatic pistol hidden in the fireplace in the living room.
[2] On a pretrial motion, the appellant unsuccessfully moved to exclude the marihuana and gun from evidence pursuant to s. 24(2) of the Charter. The trial proceeded on an Agreed Statement of Facts in which the appellant admitted possession of the guns and the drugs. The trial judge convicted on all charges. Some of the firearm-related convictions were stayed.
[3] The appellant appeals from his convictions. He renews his claim that the search of his residence was unconstitutional and that the evidence should have been excluded under s. 24(2). He advances two grounds of appeal:
The information to obtain the search warrant (“ITO”) as redacted did not provide a basis upon which a justice could conclude that there were reasonable and probable grounds to believe there was a gun in the residence; and
The trial judge erred in refusing to permit cross-examination of the ITO affiant in support of the appellant’s contention that the warrant should not have been granted.
[4] I would dismiss the appeal for the reasons that follow.
II
the challenge to the search warrant at trial
[5] The search warrant was granted largely on the basis of information provided to the police by a confidential informant. Without that information, a warrant could not have been granted.
[6] Appendix “B” of the ITO made extensive reference to information provided by the confidential informant to Constable Sills, who had in turn passed that information on to Constable Adams, the affiant of the ITO. The ITO also contained an Appendix “C”, setting out “all information that may compromise the informant’s confidentiality”.
[7] At trial, the Crown relied on an edited version of the ITO. Appendix “B” contained many redactions and Appendix “C” was entirely removed. The redactions and the removal of Appendix “C” were justified as necessary to protect the identity of the confidential informant.
[8] The appellant alleged at trial that the search warrant should not have been granted and that the subsequent search of his residence and seizure of the gun and drugs contravened his rights under s. 8 of the Charter. The appellant claimed that the evidence should be excluded under s. 24(2).
[9] Counsel for the appellant brought a motion seeking disclosure of the confidential informant’s police file in support of the s. 8 motion. Counsel argued that given the centrality of the information provided by the confidential informant to the granting of the warrant, the right to full answer and defence required that the defence be given information about the confidential informant’s history with the police to the extent possible without disclosing the confidential informant’s identity. Counsel did not suggest that the appellant was entitled to any information that might identify the confidential informant. Counsel invited the trial judge to examine and edit the police file to protect the confidential informant’s identity. The Crown argued that disclosure of any of the contents of the file risked exposing the identity of the confidential informant.
[10] The trial judge concluded that the “innocence at stake” exception to the informer privilege was not engaged and that it would be “virtually impossible” for him to edit the contents of the file in a way that would ensure the protection of the confidential informant’s identity. The trial judge declined to examine the file or to order any part of the file produced to the defence: 2010 ONSC 2907, [2010] O.J. No. 6237. This ruling is not appealed.
[11] The appellant next sought to cross-examine the affiant of the ITO. Counsel identified specific areas of the affidavit on which she sought to cross-examine the affiant. The trial judge refused to allow cross-examination: [2010] O.J. No. 6238. This ruling is challenged on appeal.
[12] The appellant ultimately argued that the redacted version of the ITO could not, on its face, provide a basis upon which a justice could be satisfied that there were reasonable and probable grounds to issue the warrant. Counsel advanced several specific arguments in support of this contention. The trial judge rejected those arguments. This ruling is challenged on appeal.
III
the grounds of appeal
[13] The ruling refusing cross-examination of the affiant came before the ruling that the redacted ITO provided a basis upon which the warrant could issue. I will, however, address the two grounds of appeal in the order in which counsel advanced them.
A. Did the redacted ITO provide a basis upon which a warrant could issue?
[14] The trial judge concluded that the redacted ITO contained sufficiently credible and reliable evidence to justify a finding that there were reasonable and probable grounds to believe that there was a handgun in the appellant’s residence. He said, at para. 71:
While the ITO could have been better drafted and contained further or more precise information, I have concluded that even the redacted ITO provides sufficient information to justify the authorization of the warrant.
[15] R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1168, instructs that when information relied on comes from a confidential informant, the court, in considering the adequacy of the information, must have regard to:
Information relevant to the credibility or reliability of the confidential informant;
The degree to which the information is compelling or cogent; and
The degree to which the confidential informant’s information is confirmed or supported in material matters by credible independent information.
These factors do not each form a separate test; rather, the reliability of the confidential informant’s information is assessed by looking at the totality of the circumstances.
[16] The trial judge applied these principles. He concluded that while the ITO provided little information that could enhance the credibility of the confidential informant, the confidential informant’s information was compelling principally because it was based on firsthand observations. Finally, the trial judge held that the confidential informant’s information was confirmed in significant ways by information provided from independent sources.
[17] The appellant contends that the trial judge erred in finding that the confidential informant’s information was compelling. He submits that the trial judge went beyond the information provided in the redacted ITO by holding that the confidential informant’s assertion that the appellant had a semi-automatic handgun in his residence was based on firsthand observation and not merely rumour, hearsay or gossip. He further argues that even if the trial judge could find that the information was based on the confidential informant’s observations, there was no evidence about the currency of those observations, and therefore no reasonable and probable grounds to believe that there was a handgun in the appellant’s residence at the time of the search warrant application. Lastly, the appellant submits that the trial judge wrongly held that certain information was potentially confirmatory, and overstated the confirmatory value of other information.
[18] In considering the appellant’s submissions, the ITO must be read as a whole in a common sense manner and having regard to its author. Police officers are not wordsmiths and the ITO is not to be parsed as though produced by a meticulous solicitor: see e.g. R. v. Chan, 1998 CanLII 5765 (ON CA), [1998] O.J. No. 4536 (C.A.), at para. 4. No doubt, this ITO, like most, could have been more felicitously drawn and organized. Those failings do not, however, mean that the ITO as redacted did not provide sufficient grounds for the issuance of the warrant. I address each of the appellant’s three complaints bearing in mind the need to read the document as a whole in a common sense manner.
(i) Did the trial judge err in reading the ITO as including the claim that the confidential informant had seen the appellant in possession of the handgun?
[19] Paragraph 1 of Appendix “B” of the redacted ITO under the heading “Investigation” refers to a conversation between Constable Sills and the affiant of the ITO. The affiant sets out several pieces of information which he says he learned as a result of that conversation. The information includes the assertion that “Marvin [i.e. the appellant] was in possession of a semi automatic pistol”. Viewed in isolation, para. 1 does not indicate the source of Constable Sills’s information, and assuming that information came from the confidential informant, para. 1 does not indicate the source of the confidential informant’s information. On its own, para. 1 could not justify the conclusion that the confidential informant had seen the appellant in possession of a handgun.
[20] Paragraph 1 does not, however, stand alone. Under the heading “Reasonable grounds to believe the offence has been committed”, the affiant states:
On January 11th, 2008, I spoke to Constable SILLS #2830 who received information from a confidential informant indicating that a male named “Marvin”, who was later identified as Michael GREEN October 10th, 1957, was in possession of a semi automatic handgun at his residence located at 189 Queen Street East in the City of Brampton. The C/I has knowledge that Michael GREEN hosts after hours parties on the weekend and the C/I has been in attendance [redacted] in the past.
The C.I. indicated that the after hours parties have attracted people who are sometimes armed with firearms. As such, the suspect [the appellant] has acquired a gun [redacted].
Within the last [redacted] Michael GREEN was observed to be in possession of a semi-automatic handgun within the residence of 189 Queen Street East in the City of Brampton.
[21] Later in the ITO under the heading “Grounds to believe that the items to be seized are at the place to be searched”, the affiant asserts:
The C/I has provided police with information about a male named Michael GREEN.
The C/I has [redacted] seen Michael GREEN in possession of a semi-automatic handgun.
Michael GREEN hosts “after hours” parties on the weekends, at his residence, which have attracted people armed with firearms, as well as street gang members from Brampton, Mississauga and Toronto. Michael GREEN has acquired a gun according to the C/I. [redacted].
He stores the handgun within his residence [redacted].
[22] Under the heading “Conclusion”, the affiant alleges:
The C/I provided Constable Jeromie SILLS #2830 information pertaining to a male party by the name of Michael GREEN. GREEN organizes an “after hours” party at his residence and has [redacted] acquired a gun.
The C/I was able to identify [redacted] the firearm. The C/I was able to refer to the firearm as a semi automatic pistol.
The C/I was able to identify the [redacted]. This information goes beyond mere suspicion that the suspect is in possession of a gun.
The C/I was able to state to Constable SILLS #2830 that [redacted] has seen the gun within the last [redacted] within the residence at 189 Queen Street East, Brampton. The information is believed to be both current and accurate.
[23] Reading the ITO as a whole, it was reasonably open to the interpretation that Constable Sills told the affiant on January 11, 2008 that the confidential informant had told him that he had seen the person who resided at 189 Queen Street East in Brampton in possession of a semi-automatic handgun while both were in the residence. It was equally open to the interpretation that Constable Sills told the affiant that the confidential informant had explained that the individual had the handgun for personal protection because some of the people who attended his after-hours parties carried and used firearms while in his home. I do not think the trial judge speculated about material that had been redacted from the ITO. He simply read the redacted ITO as a whole.
(ii) Did the trial judge err in failing to hold that the information provided by the confidential informant did not provide reasonable grounds to believe that there was a handgun in the appellant’s residence when the police applied for a search warrant?
[24] There is no direct evidence in the redacted ITO as to when the confidential informant saw the handgun in the appellant’s possession. However, the information provided by the confidential informant indicated that the appellant had the gun for protection from those who brought guns to his parties. This was accompanied by information in the ITO from the Peel Regional Police Service databank that revealed there had been several past incidents at parties at the appellant’s residence in which guns had been produced and used by attendees. In at least one incident, attendees had threatened the appellant with guns. One gun-related incident had occurred only a week before the application for the search warrant.
[25] It was open to the trial judge to conclude that the issuing justice could reasonably infer from the information in the ITO that the appellant had a gun in his residence for protection against persons who attended his parties while armed. The trial judge could further conclude that the issuing justice could reasonably find that as the appellant continued to host the same kinds of parties, his perceived need to keep a gun in his residence for protection continued as of the time of the search warrant application: see R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 81-84.
(iii) Did the trial judge err in concluding that the information provided by the confidential informant was confirmed by independent information?
[26] The trial judge dealt with the extent to which the confidential informant’s information was confirmed or corroborated at some length. The appellant is correct in his assertion that the trial judge erred in characterizing the information that the appellant did not have a licence for any handgun as confirmatory of the confidential informant’s information. This error was, however, minor when placed beside the substantial body of information that was confirmatory of the confidential informant’s information.
[27] The confidential informant described the person who was in possession of the handgun as residing at 189 Queen Street East, Brampton, with his girlfriend. The appellant resided at that address with his girlfriend. The appellant described the person as going by the names “Marvin” and “Nervous”. Information in the ITO independent of the confidential informant confirmed that the appellant used the street name “Nervous”.
[28] More importantly, evidence independent of the confidential informant confirmed the confidential informant’s information that the appellant operated after-hours parties at 189 Queen Street East in Brampton, and that some attendees at those parties brought guns and used those guns to threaten others – including the appellant. This independent information was capable of confirming the confidential informant’s information that he had attended those parties and seen the appellant with a gun he kept to protect himself against those who came to the parties armed.
[29] There was no independent evidence directly putting a gun in the possession of the appellant. However, confirmatory evidence need not go that far: R. v. Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451, aff’g 2007 ABCA 380, 227 C.C.C. (3d) 322, at para. 25. The entirety of the evidence referred to in the ITO independent of the confidential informant offered confirmation of the confidential informant’s information that the appellant had a gun to protect himself from armed and dangerous people who attended his after-hours parties.
[30] I would not interfere with the trial judge’s holding that the redacted ITO provided a basis upon which the search warrant could issue.
B. Did the trial judge err in refusing leave to cross-examine the ITO affiant?
[31] An accused who seeks 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 search warrant must obtain leave from the trial judge. In deciding whether to grant leave, the trial judge will have regard to various competing interests, including the accused’s right to make full answer and defence, the Crown and the court’s obligation to protect the identity of confidential informants, and the court’s obligation to make effective use of limited judicial resources by avoiding unnecessary and time-consuming proceedings. In R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1465, Sopinka J. articulated an approach which balanced those competing interests. He 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.]
[32] In R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, the Court confirmed the Garofoli approach in the context of a Charter challenge. Charron J. emphasized the relatively narrow focus of the Garofoli inquiry, 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. 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 the 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. [Emphasis added.]
[33] Garofoli and Pires were wiretap cases. However, the same approach is apposite when search warrants are challenged: see Sadikov, at paras. 39-41; R. v. Greaves-Bissesarsingh, 2014 ONSC 4900, 314 C.C.C. (3d) 493; R. v. Daniels, 2014 ONSC 6542.
[34] 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. 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: Pires, at paras. 41-43; Sadikov, at para. 40.
[35] Motions to cross-examine affiants most often target specific, factual allegations in the ITO that are central to the existence of the reasonable grounds necessary to justify the granting of the warrant. The accused on the motion to cross-examine, either by reference to other parts of the ITO, or extraneous evidence (often material provided by Crown disclosure) attempts to demonstrate that there is a reasonable likelihood that cross-examination of the affiant on certain parts of the ITO will “undermine” the grounds upon which the warrant was granted: see Pires, at paras. 68-69. 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. In either case, 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.
[36] 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.
[37] Counsel for the appellant seek to expand the grounds upon which cross-examination of the affiant can be allowed. They submit that when the attack on the warrant is premised on an alleged breach of s. 8 of the Charter and the motion to exclude the evidence is brought under s. 24(2), factors relevant to the s. 24(2) analysis can justify cross-examination of the affiant even though the accused cannot justify cross-examination on any issues relevant to the validity of the warrant.
[38] On this approach, cross-examination of the affiant would be allowed if there was a reasonable likelihood that the cross-examination would produce evidence that could assist the accused in the s. 24(2) analysis as to the admissibility of the evidence. For example, evidence of a single misstatement in the ITO might provide a basis upon which an accused could successfully argue that there was a reasonable likelihood that further cross-examination would reveal other examples of carelessness in the affiant’s preparation of the ITO. In turn, this carelessness could figure in a trial judge’s assessment of the seriousness of the police misconduct under s. 24(2), the first of the three factors identified in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
[39] This argument was not made before the trial judge and I would be inclined to reject it on that basis alone. However, I would also reject the argument on its merits. Garofoli and Pires speak to the possibility of cross-examination going to the “basis upon which the authorizing judge could grant the order”. Section 24(2) considerations have nothing to do with “the basis upon which” a justice could grant the warrant.
[40] Counsel correctly point out that Garofoli and Pires were wiretap cases and the evidence was subject to its own set of statutory exclusionary rules. Under those rules, non-compliance with the preconditions to the granting of the warrant required exclusion of the evidence obtained as a result of the warrant. In that sense, the inquiries described in Garofoli and Pires addressed the ultimate admissibility of the evidence.
[41] Cross-examination on issues relevant to s. 24(2) goes well beyond considerations relevant to the validity of the warrant. Cross-examination on s. 24(2) issues at a point in time when the accused has not shown any basis upon which to challenge the validity of the warrant is at odds with the judicial economy rationale underlying Garofoli and Pires. An expansion of the grounds upon which an affiant may be cross-examined to include issues relevant to s. 24(2) when those issues are entirely irrelevant to the proceedings, absent a finding that the warrant should not have been granted, is not an effective and efficient use of judicial resources. Expanding the ambit of cross-examination of the affiant to encompass issues relevant to s. 24(2) when there is no basis to permit cross-examination on the validity of the warrant itself, is in reality an attempt to justify cross-examination for one purpose – to establish grounds to exclude under s. 24(2) – in the hope that the cross-examination will uncover a basis upon which to attack the validity of the warrant, demonstrate a breach of s. 8, and thereby make s. 24(2) relevant. This approach seems to put the proverbial cart before the horse.
[42] While I do not accept that the potential relevance of cross-examination to s. 24(2) is a stand-alone ground for permitting cross-examination of the affiant, I would not foreclose a trial judge from exercising her discretion to allow cross-examination on matters relevant to s. 24(2) if the trial judge was satisfied that there was a basis to cross-examine the affiant on matters relevant to the validity of the warrant. Trial judges must be given wide latitude in controlling the specifics of any cross-examination that may be allowed. Depending on the issues raised and the nature of the cross-examination sought, it may be an effective use of judicial resources to allow cross-examination on issues relevant to s. 24(2) at the same time as the affiant is cross-examined on matters relevant to the validity of the warrant. In other circumstances, a trial judge may deem it appropriate to address only the matters related to s. 8, leaving potential cross-examination on s. 24(2) to be addressed when and if the trial judge finds a s. 8 breach.
[43] Counsel for the appellant relied primarily on the relevance of the proposed cross-examination to s. 24(2) issues to support the claim that the trial judge should have allowed cross-examination of the affiant on the specific areas identified by trial counsel. Counsel candidly acknowledged that cross-examination in respect of some of those matters had little or no relevance to the validity of the warrant. I agree with that concession. As I would hold that s. 24(2) issues do not provide a gateway to cross-examination of the affiant, I will address only those areas of potential cross-examination that could go to the validity of the warrant.
[44] Counsel for the appellant submit that the trial judge erred in refusing to permit cross-examination of the affiant on matters relevant to the credibility and/or reliability of the information provided by the confidential informant. Counsel submit that this cross-examination would have gone to the validity of the warrant and was properly the subject of cross-examination even on a narrow reading of Garofoli and Pires.
[45] Counsel point to three areas in which they sought to cross-examine the affiant. First, the affiant says nothing in the ITO about the confidential informant’s motive for assisting the police. Counsel argue that cross-examination of the affiant concerning his knowledge, if any, of the confidential informant’s motive and his reasons for not including any reference to that motive in his affidavit, assuming he was aware of one, could well impact on the affiant’s credibility and/or the reasonableness of his reliance on information provided by the confidential informant.
[46] Second, counsel refer to the affiant’s description of the prior assistance to the police provided by the confidential informant. The affiant stated that the confidential informant had provided information “in the past” and that the information had been “accura[te]”. There is no elaboration or explanation offered. Counsel submit that cross-examination of the affiant could well disclose whether the affiant had any real basis upon which to describe the confidential informant as having provided accurate information.
[47] Third, counsel point to the affiant’s description of the confidential informant’s criminal record as not involving “crimes of deception”. Counsel contend that cross-examination of the affiant could bring clarity to the vague phrase used by the affiant and might well provide insight into the affiant’s candor and the reasonableness of his belief in the truthfulness of information coming from the confidential informant.
[48] The trial judge ultimately declined to allow cross-examination on any of the areas relevant to the confidential informant’s reliability or credibility. He was properly concerned about permitting cross-examination on matters that might identify the confidential informant. In concluding that none of the proposed areas of cross-examination that were relevant to the confidential informant’s reliability or credibility justified cross-examination, the trial judge focused on whether there was reason to question the accuracy of any of those parts of the ITO.
[49] There is merit in the submissions made by counsel for the appellant. The affiant’s belief in the truth of the information that purportedly came from the confidential informant was crucial to the existence of reasonable grounds for the warrant. Steps taken by the affiant to inquire into the confidential informant’s reliability and credibility and what he did and did not know about matters relevant to the confidential informant’s credibility were germane to the affiant’s belief that reasonable grounds existed for the warrant.
[50] It may be that a carefully controlled cross-examination of the affiant would have allowed counsel for the accused at trial to explore at least to some degree the three areas outlined above without risking identification of the confidential informant. For example, cross-examination of the affiant as to his knowledge of the confidential informant’s motive for assisting the police, apart entirely from what that motive may have been, could, depending on the answers, negatively impact on the affiant’s credibility or the reasonableness of his belief in the information provided by the confidential informant. It is not apparent to me how that kind of focused questioning could have risked identifying the confidential informant.
[51] Some might describe my hypothetical cross-examination of the affiant as “a fishing expedition”. It is hard, however, to know what additional information an accused could possibly produce to support the claim to cross-examine the affiant on his knowledge of the confidential informant’s motives for co-operating with the police. The affiant chose to say nothing about the confidential informant’s motives in the ITO. One can safely assume that a confidential informant has a motive for co-operating with the police. Putting these two factors together seems to me to be enough to justify cross-examination of the affiant as to his knowledge of the confidential informant’s motives as long as that cross-examination does not risk identifying the confidential informant.
[52] In the end however, what I may or may not have done had the motion to cross-examine been before me is not determinative of the appeal. A trial judge’s ruling permitting or refusing cross-examination of the affiant is an exercise of the trial judge’s discretion. This court must defer to the trial judge absent demonstration that the discretion was not exercised judicially: Pires, at paras. 46-47.
[53] The appellant has not convinced me that the trial judge’s refusal to permit cross-examination in the three areas described above falls outside the proper exercise of his judicial discretion. It was open to the trial judge to conclude, in the absence of any material extraneous to the ITO itself, and having regard to the entirety of the ITO, that there was not a reasonable likelihood that cross-examination of the affiant on the areas set out above was likely to assist the court in determining whether the warrant should have issued. In this respect, I think it is significant that the grounds advanced in this ITO in support of the warrant emphasized the cogency of the confidential informant’s information and the presence of independent confirmation of that evidence. As noted by the trial judge, there was very little in the ITO to support the credibility of the confidential informant. The three areas of potential cross-examination outlined above would not have affected either the cogency of the information provided by the confidential informant or the presence of independent confirmatory evidence. The trial judge was also entitled, as he did, to give weight to the need to protect the identity of the confidential informant in determining whether to permit cross-examination: see Pires, paras. 33 and 36.
[54] Some judges may, in the exercise of their discretion, have permitted limited cross-examination of the affiant on the three areas described above. I count myself in that group. I cannot, however, say that the trial judge failed to exercise his discretion judicially in choosing the more cautious course and refusing cross-examination.
IV
conclusion
[55] I would dismiss the appeal.
RELEASED: “AH” “AUG 24 2015”
“Doherty J.A.”
“I agree Alexandra Hoy A.C.J.O.”
“I agree M.L. Benotto J.A.”