Court File and Parties
Court File No.: 13-3897 Newmarket Date: 15 July 2014 Ontario Court of Justice
Between: Her Majesty the Queen — and — Adrian Mohamed
Ruling on Application to Cross-Examine Affiant
Counsel: Ms. Frances Monardo for the Crown Mr. Peter Lam for Mr. Mohamed
KENKEL J.:
Introduction
[1] The accused is charged with marijuana production and possession of marijuana for the purpose of trafficking. The trial commenced with a defence application for leave to cross-examine the affiant on the search warrant.
[2] To challenge the sub-facial validity of the warrant, the defence wishes to cross-examine the affiant on the following points:
- The specifics of the observations made on April 19, 22, 24 2013
- The tip from CHS (Confidential Human Source)
- The significance of the Hydro readings
- The significance of the FLIR observations
- The absence of confirming observations on the day of the arrest May 3, 2013
[3] In support of this application, the defence relies upon the Information to Obtain (ITO). No extrinsic contradictory evidence has been tendered.
Leave to Cross-Examine
[4] The defence bears the burden in this application to show that there is a reasonable likelihood that cross-examination will elicit testimony of a probative value to the issue for consideration. That issue is strictly focused – whether there is any basis on which an issuing justice could have been satisfied there were reasonable grounds to issue the warrant. See: R. v. Pires 2009 SCC at paras. 35, 40.
[5] If the proposed questioning falls within that narrow scope, then the applicant need not demonstrate that cross-examination will be successful in discrediting one or more of the statutory preconditions. A reasonable likelihood that it will assist the court in determining a material issue is all that's required. Pires at para. 30-31, 40.
[6] Although the likely effect of cross-examination must be assessed in light of the affidavit as a whole, the threshold question of whether cross-examination should be allowed is separate from the ultimate question of whether the warrant is valid. The court cannot deny leave on the basis that the remainder of the ITO may support the warrant. The focus is on the effect of the proposed cross-examination, and whether there is a reasonable likelihood that it will undermine the basis of the warrant. Pires at para. 69.
The Proposed Questions and Reasonable Likelihood
[7] The specifics of the observations in April are set out in the ITO. The defence submits that further questions such as where the officer was standing, what was the time of day would produce details relevant to the issue before the court and the defence also wishes to challenge the officer's experience in relation to observations such as the smell of marijuana.
[8] The affiant includes in the ITO the specifics mentioned by the defence – date, time and location of observation. The officer doesn't specifically state his ability to recognize the smell of vegetative marijuana but he does mention that he was assigned to the marijuana grow operation team 6 years ago and has attended at over 180 grow operations since.
[9] As for the tip from a confidential human source the Affiant explicitly placed no weight on that tip other than to explain the starting point for the investigation.
[10] The affiant explains the inference he drew from the pattern in the Hydro readings. The defence wishes to challenge his expertise in that regard and suggest alternate scenarios that might also lead to the same pattern. The Affiant did not claim any expertise in the ITO. The inference the affiant drew in relation to a pattern of consumption at the exact same level every day at the exact same times as being consistent with timers as used in grow operations is explained. It was one point among many in the investigation that led to the affiant's belief. The possibility of other explanations for the same pattern would not affect the affiant's inference in the ITO.
[11] The FLIR observation along with a photo showing "thermal anomalies" on one side of the residence and at the roof vents is set out in the ITO. The purpose of ordering that FLIR audit is set out in the ITO along with the relevance to the officer of the heat observation. I agree with the defence that there is a lack of context as to why the pattern observed of heat coming from the residence roof vents and one side of the house was cited in the ITO as anomalous.
[12] The ITO sets out the circumstances on May 3rd where the police attended and ultimately arrested the accused as he drove away from the location under investigation. The fact that other investigative steps were not undertaken at that time (such as police walking back and forth to detect odours while the accused was in the residence) is already set out in the ITO.
Conclusion
[13] The defence does not assert that the affiant has withheld material facts, failed to identify sources, made conclusory assertions or drawn illogical inferences. There's nothing in the record that shows that the affiant has unfairly presented information or withheld relevant information which he ought to have been aware of.
[14] I find that the defence has not shown a reasonable likelihood that cross-examination on points 1, 2, 3, and 5 would assist the court in determining the material issue. With respect to point 4 the FLIR observation, I find that the defence has shown there's a reasonable likelihood that cross-examination would be relevant to the material issue. I therefore grant leave to the defence to ask questions on that point.
Delivered 15 July 2014
Justice Joseph F. Kenkel