Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230123 DOCKET: C67190

van Rensburg, Thorburn and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

Daniel Castellano Appellant

Counsel: Breana Vandebeek and Nathan Gorham, for the appellant Andrew Cappell, for the respondent

Heard: October 17, 2022

On appeal from the convictions entered by Justice Jennifer Broderick of the Ontario Court of Justice on April 30, 2019.

van Rensburg J.A.:

[1] The appellant appealed his convictions for various offences. At the oral hearing the court dismissed his appeal with reasons to follow.

A. The Offences

[2] The appellant was identified as a suspect after a pipe bomb exploded inside a pick-up truck at a tractor repair business. The investigating police officer applied for and obtained a warrant to search various locations associated with the appellant. In their search of the appellant’s residence and his truck, the police seized marijuana, handguns, pipe bombs, pipe bomb components, and stolen property. The appellant was arrested and eventually charged with multiple criminal offences. Following his arrest, and after he spoke with legal counsel, the appellant was interviewed by the investigating officer at the police station.

[3] The appellant pleaded not guilty to all of the offences. He challenged his arrest and the search warrant, seeking to exclude the seized items from evidence at trial. He also argued that his police statement was involuntary. The challenged evidence was ruled admissible and admitted as part of the Crown’s case at trial. The appellant was convicted of mischief to property, careless storage of a loaded firearm, possession of property obtained by crime, possession of marijuana, possession of explosives, possession of a weapon for a dangerous purpose, and using an explosive with intent to damage property. He was sentenced to five years and four months in jail.

B. Issues on Appeal

[4] The appellant raised two grounds of appeal: (1) that the trial judge erred in concluding that his police statement was voluntary; and (2) that the trial judge erred in dismissing his application to cross-examine the affiant on the information to obtain the search warrant (the “ITO”). I address each ground of appeal in turn.

(1) Voluntariness of the Appellant’s Police Statement

[5] The appellant was arrested and informed of his rights and cautioned by the investigating officer. He was transported to the Campbellford OPP detachment where he was provided with a meal and a pair of pants, and where he spoke with legal counsel by phone. Shortly thereafter, the same officer commenced a videotaped interview. The appellant did not confess in the course of the two-hour interview; rather, he repeatedly denied his involvement in all of the offences.

[6] The trial judge provided detailed reasons on each of the pre-trial applications. In her reasons for determining that the appellant’s police statement was voluntary, she began by identifying what was in dispute. Defence counsel acknowledged there were no threats, promises, or oppressive circumstances. The issue was whether the officer made “subtle inducements” in respect of the charges and bail that raised a reasonable doubt about whether the statement was voluntary. The appellant focussed on two aspects of the interview: first, the officer’s statement near the beginning of the interview that he would take into consideration what the appellant had to say, after telling the appellant he was under arrest and not yet charged; and second, the officer’s response to the appellant’s question near the end of the interview about whether he would be released, when the officer left the interview room, indicating he needed to get further information, and on his return, invited the appellant to “work with” him.

[7] The trial judge concluded that nothing that was said by the officer during the interview could be characterized as an inducement. She noted that there was no evidence of a quid pro quo offer and, referring to passages from the interview, she observed that the appellant’s own comments demonstrated that he did not interpret what was said by the officer as a quid pro quo. The trial judge, again referring specifically to what the appellant said during the interview, concluded that, even if there had been an inducement, there was no evidence that the appellant’s will, at any point, was overborne.

[8] On appeal, the appellant submitted that the trial judge erred by focussing on the two statements by the officer in isolation, and not considering them together in the overall context of the interview. The appellant pointed to the headings the trial judge used in her reasons, “Distinction between Arrest and Charge” and “Discussion Regarding Release”, as indicating that she took a piecemeal approach. The appellant also argued that the trial judge erred by focussing on the officer’s intent, rather than the effect of the officer’s statements on the appellant. Finally, and as an overriding theme of counsel’s oral argument on appeal, it was submitted that there was an available inference from passages highlighted by counsel that the appellant believed that if he talked, he would not be charged, or at least that he would be released on bail.

[9] A trial judge’s application of the voluntariness test is a question of mixed fact and law entitled to appellate deference, absent an error of law or principle: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 22. No such error has been demonstrated in this case.

[10] First, the trial judge did not take the statements alleged to be inducements out of context. To the contrary, after explicitly indicating that she would consider the two specific areas identified by defence counsel with reference to other relevant portions of the interview, the trial judge did just that. The fact that she set out her analysis under two headings simply reflects how the matter was argued, with counsel at first instance (as on appeal) identifying two specific points at which the officer was alleged to have implicitly offered an inducement. In assessing the effect of each alleged inducement, the trial judge considered what was said in context – what preceded and followed each impugned statement by the officer, as well as the entire discussion between the officer and the appellant, including the appellant’s own comments, questions, and assertions during the interview.

[11] Nor, as the appellant argued, did the trial judge decide voluntariness based on her conclusions about the officer’s intentions. While the trial judge stated that she accepted the officer’s voir dire evidence that he made an accurate distinction between arrest and charges that was not intended to induce the appellant to give a statement, the officer’s intention was not the determinative factor. Rather, the trial judge went on to consider the effect of what was said on the appellant. Referring to specific passages in the interview, she concluded that there was no evidence the appellant was confused, and he appeared to appreciate the difference between his arrest and charges. The trial judge noted that the appellant was assertive and not hesitant to ask questions, which were, at times, pointed. In respect of the second alleged inducement, the trial judge’s focus was on its impact on the appellant. Based on a careful examination of what was said by both the officer and the appellant, she concluded that the appellant did not perceive the officer’s “work with me” comment as a quid pro quo; indeed, the appellant continued to deny his involvement and repeatedly stated that the officer had lied to him and could not be trusted.

[12] Finally, I turn to the overriding argument made by appellant’s counsel on the first issue: that various parts of the interview, when considered together, necessarily suggested that the appellant cooperated in the interview because he believed he would not be charged or that he would be released on bail. Counsel linked together the following “facts”: the officer’s statement that the appellant was not yet charged but only arrested; his assertion that he would take what the appellant said into consideration in his investigation; the fact that the appellant spoke to the officer; his question later in the interview, “Am I getting released?”; the officer’s silence and then the invitation to “work with” him; the appellant’s surprise when the officer told him he was not going to be released; and, the officer’s subsequent apology for having lied to the appellant. The problem, however, is that this approach is itself piecemeal, with the various statements taken out of context and divorced from the entire record of the interview.

[13] When read in context, these “facts” do not support the idea that the officer induced the appellant to speak, or in any way affected the voluntariness of his statement. For example, in telling the appellant he was under arrest, and not charged, the officer also explained that the search warrant was being executed and that the paperwork had not yet been filed for the charges. Similarly, the appellant expressed surprise that he was being held due to his lack of a criminal record, not because he had made statements to the officer. And, contrary to the appellant’s submission, the officer did not apologize for not releasing him. Throughout the interview the appellant complained that the officer had lied to him by using a ruse to effect his arrest. The officer’s apology near the end of the interview related to the ruse, as the officer attempted, without any apparent success, to persuade the appellant that he could be trusted, and to encourage him to speak about the offences.

[14] The question is not, as the appellant’s counsel suggested, simply whether isolated passages can support a reasonable inference that an inducement was offered, thereby raising a reasonable doubt about the voluntariness of a statement. The court must determine whether what was said constituted an inducement, and then consider its effect. As Deschamps J. stated in R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at para. 15, “while a quid pro quo is an important factor in establishing the existence of a threat or promise, it is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement”. The trial judge adopted the correct approach, considering the alleged inducements in the overall context of the interview, the appellant’s circumstances, and what was said in his statement. Her determination that the appellant’s statement was voluntary reveals no error.

(2) The Trial Judge’s Refusal to Permit Cross-examination of the ITO Affiant

[15] The appellant’s main argument in his application to challenge the search warrant was in relation to 15 police occurrence report summaries and associated notes set out by the affiant. The appellant argued that, while the police occurrence reports were attached to the ITO, the affiant had deliberately included in his summaries editorial comments to the effect that the occurrences showed that the appellant was the type of person who reacted aggressively in the context of disputes with others.

[16] The trial judge’s written reasons denying leave to cross-examine are a model of clarity. She began by explicitly identifying the areas of proposed cross-examination. First, defence counsel wanted to cross-examine the affiant on inconsistencies between the police occurrence report summaries in the ITO and the actual police occurrence reports. Second, he proposed to question the affiant on the inclusion of reports where charges were not laid or withdrawn, focussing on: (i) why the affiant included police occurrence reports where charges were not laid or were subsequently withdrawn, (ii) what investigation he performed as to why the charges were withdrawn, and (iii) how a dated incident where charges were not laid or were withdrawn was relevant to whether the appellant was the person who put a pipe bomb in the vehicle. Third, counsel was seeking an explanation for why the affiant included a conclusory statement at the end of each police occurrence report summary such as: “this occurrence shows Daniel Castellano’s behaviour escalates very quickly and shows a tendency to seek revenge by damage resulting in financial loss and retribution towards business that he was in conflict with.” Defence counsel argued that the affiant’s explanation for the notes would assist the court in determining whether he had overstated his grounds in the ITO.

[17] The trial judge articulated the applicable test to obtain leave to cross-examine the affiant of an ITO, citing R. v. Garofoli, [1990] 2 S.C.R. 1421, and R. v. Pires; R v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343. She noted that 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 justice could grant the search warrant. She also recognized that cross-examination should be ordered if there was a reasonable likelihood that it would assist the court to determine a material issue.

[18] In her analysis, the trial judge addressed the reasons identified by the appellant for wanting to cross-examine the affiant. She concluded that the affiant’s explanation as to why he included or omitted certain information from the police reports in the summaries did not assist her in determining whether the information should have been included. She was in a position to compare the summaries to the actual police reports to determine whether there were material omissions and inconsistencies, and to assess how they impacted the reasonable and probable grounds set out in the ITO. She observed that knowing why the affiant included summaries of police reports where charges were not laid or withdrawn and what investigation he performed about such charges would not assist her: her task was to determine whether the police reports in relation to withdrawn charges supported the inferences the affiant drew from them. Irrespective of the reason for their inclusion, the summaries of the police reports would be excised if they did not support the affiant’s inferences. The trial judge also noted that she could determine, based on the police occurrence reports and summaries, what weight, if any, to give to the affiant’s conclusory statements. The affiant’s explanation for how he reached his conclusions would not assist her in determining whether they were reasonably supported. She was able to assess whether the statements should be excised because they were based on propensity reasoning and were therefore prejudicial.

[19] For these reasons, the trial judge dismissed the application to cross-examine the ITO affiant. Ultimately, she excised the majority of the police occurrence report summaries from the ITO because they were irrelevant or engaged in improper propensity reasoning, before concluding that the ITO disclosed reasonable grounds for the issuance of the search warrants.

[20] On appeal, the appellant asserted that the trial judge erred in her application of the test for granting leave to cross-examine. Specifically, the appellant argued that, when determining whether there was a reasonable likelihood that cross-examination would assist the court in determining a material issue, the trial judge considered the only material issue to be whether the edited ITO disclosed reasonable and probable grounds. While the appellant did not take issue with the trial judge’s conclusion that cross-examination would not assist in determining the issue of reasonable grounds, he argued that another material issue was whether the affiant subverted the pre-authorization process. Leave to cross-examine should have been granted so that the appellant could make the argument that the affiant’s inclusion of the editorial comments about the offence summaries was a deliberately deceptive strategy.

[21] Whether to permit cross-examination on an ITO involves the exercise of judicial discretion. Absent an error in principle, a material misapprehension of evidence, or an unreasonable determination, an appellate court should decline to interfere with the reviewing judge’s decision: R. v. Shivrattan, 2017 ONCA 23, 346 C.C.C. (3d) 299, at para. 55, leave to appeal refused, [2017] S.C.C.A. No. 93. There was no such error here.

[22] Cross-examination of an ITO affiant is appropriate when it is established that there is a reasonable likelihood it will assist the court to determine a material issue: Pires; Lising, at paras. 31, 40. In most cases, the material issue is whether the statutory preconditions were met to authorize the requested search or seizure. Hence the Supreme Court’s guidance in Pires; Lising that, in determining whether cross-examination should be permitted, counsel and the reviewing judge “must remain strictly focussed on … whether there is a basis upon which the authorizing judge could grant the order”: at para. 40.

[23] Contrary to the appellant’s submissions, the trial judge accurately determined whether the proposed cross-examination would assist in her determination of the material issues in this case. It is true that, even when the statutory preconditions for an authorization remain, a reviewing justice has residual discretion to set aside a warrant for subversion of the prior authorization process where police have deliberately provided false material statements or deliberately withheld material facts, with the intention of misleading the issuing justice: see R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at paras. 62, 69, leave to appeal refused, [2017] S.C.C.A. No. 81. However, the issue of subversion was not advanced at first instance in this case. In addition, the trial judge noted that the appellant had not demonstrated that the ITO contained any false or misleading information that was material to the grounds in the ITO. Accordingly, and unlike other cases where cross-examination was permitted for such purpose (see e.g., R. v. Majeed, 2017 ONSC 2912, and R. v. Kabanga-Muanza, 2018 ONSC 6514), there would have been no basis here for alleging subversion of the pre-authorization process.

[24] The appellant also argued that the trial judge cited and applied the wrong legal test in refusing leave to cross-examine the affiant of the ITO. At various points in her reasons, the trial judge used language similar to the Supreme Court’s articulation of the test in Garofoli, where Sopinka J. said that an accused must show “[a] basis … for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization”: at p. 1465. The appellant argued that this meant that the defence would have to show a likelihood that cross-examination would generate evidence favorable to the accused. By contrast, the Court in Pires; Lising required the accused to show only a “reasonable likelihood that [cross-examination] will assist the court to determine a material issue”: at para. 40.

[25] I do not agree with the appellant’s position. The trial judge did not, as alleged by the appellant, require that the proposed cross-examination generate evidence favorable to the defence. The trial judge stated specifically at para. 37, citing para. 40 of Pires; Lising, that “it is not necessary for the defence to … show that cross-examination will be successful in discrediting one or more grounds for the search warrant. A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown”. Applying the reasonable likelihood test, the trial judge concluded that the proposed areas of cross-examination were unnecessary for her to determine the material issue: whether there were reasonable and probable grounds on which the warrant could have been issued. Nor, in my view, did Pires; Lising change the Garofoli test. In Garofoli, the Supreme Court rejected any onus on the defence to prove a prima facie case to obtain leave to cross-examine at pp. 1463-65. The Court in Pires; Lising upheld Garofoli and cited with approval passages from the decision respecting cross-examination: see paras. 3, 10, 40 and 42. I see no material difference in the tests articulated in each case. Indeed, this court has continued to use the language of Garofoli when articulating the test post-Pires; Lising: see e.g., R. v. Victoria, 2018 ONCA 69, 359 C.C.C. (3d) 179, at para. 74; R. v. Reid, 2017 ONCA 430, at para. 15; and R. v. Sadikov, 2014 ONCA 72, 314 O.A.C. 357, at para. 39.