Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211112 DOCKET: C67078

Doherty, Pardu and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

David Paul Hunter Bain Appellant

Counsel: Craig Zeeh, for the appellant Andrew Hotke, for the respondent

Heard and released orally: November 10, 2021

On appeal from the conviction entered on January 18, 2018 and the sentence imposed on August 17, 2018 by Justice G.D. Lemon of the Superior Court of Justice.

Reasons for Decision

[1] The appellant submits that the application judge should have allowed cross-examination of the affiant on his failure to include in his affidavit information from a source suggesting the appellant had a residence other than the residence identified by the affiant in his affidavit.

[2] We do not accept this submission. The information went no further than to suggest the appellant was at or could be found at a location other than the place identified as his residence in the affidavit. This is hardly surprising. People can routinely be found in different places. That information did not, in our view, detract from the assertion in the affidavit that the appellant lived at the named residence. Nor was it sufficiently cogent to provide a basis upon which the trial judge should have allowed cross-examination. The decision to allow cross-examination of the affiant is a discretionary one. We would not interfere with the manner in which the application judge exercised that discretion.

[3] The appellant next submits that the information provided by CI#1 should have been redacted from the affidavit and, that absent that information, there were inadequate grounds upon which to issue the warrant. CI#1 sent a text message to a police officer in which CI#1 included a comment suggesting he regularly lied to the police. This comment was a general one and made no reference to any specific investigation or any specific information.

[4] The affiant was aware of the text message, but did not include the information in his affidavit. The application judge permitted cross-examination of the affiant on the text message. In that cross-examination, the affiant readily acknowledged that he should have included the information in his affidavit. The officer did not consider the comment as being made in reference to this investigation and the text message simply “slipped his mind”.

[5] The trial judge accepted the affiant’s explanation. She was satisfied there was no attempt to mislead the court. She also accepted the affiant’s evidence that he did not interpret the comment in the text as a recantation of the very specific information CI#1 had given him about the appellant in relation to this particular investigation.

[6] Given the application judge’s findings, there was no basis upon which to excise the information provided by CI#1. It was open to the application judge to consider the content of the ITO affidavit amplified by the cross-examination when determining whether there was and remained a basis upon which the warrant could properly have issued.

[7] The application judge found that the information in the affidavit was detailed and specific. CI#1 had seen the gun in the place to be searched and provided details to that effect. There was evidence corroborating the evidence provided by CI#1. It was open to the application judge to conclude that the information in the affidavit, considered in its entirety, provided a basis upon which the issuing judge could have been satisfied there was reliable evidence that might reasonably be believed justifying the issuance of the warrant. That is as far as the application judge could go on the application to quash the warrant.

[8] The appeal is dismissed.

“Doherty J.A.”

“G. Pardu J.A.”

“J.A. Thorburn J.A.”