Court Information

Court File No.: Not specified

Location: London, Ontario

Date: August 29, 2014

ONTARIO COURT OF JUSTICE

Parties

BETWEEN

HER MAJESTY THE QUEEN Respondent

and

STEVEN DASILVA Applicant

Counsel

M. Hourigan for Crown

J. Zegers for the Applicant

Decision

GEORGE J.:

Background and Charges

[1] The applicant is charged with marijuana possession, marijuana production, careless use of a firearm, and two counts of unauthorized possession of a weapon. The Crown has proceeded by indictment and the applicant has elected to have a trial in the Superior Court. He requests a preliminary hearing, which is scheduled to proceed on September 10, 2014.

[2] The charges arise from a search warrant executed at the applicant's residence. At the preliminary hearing the applicant seeks to cross-examine the affiant of the Information to Obtain (ITO) the search warrant.

Legal Framework for Dawson Applications

[3] There is no right to cross-examine on an affidavit sworn in support of a search warrant application. Leave must be granted. At the preliminary hearing stage the leave application is commonly referred to as a Dawson Application. This is a reference to the Ontario Court of Appeal decision in R. v. Dawson (1998), 123 C.C.C. (3d) where it was determined that a preliminary hearing justice has jurisdiction to permit cross-examination of an ITO affiant. The leave test, as set out in the Supreme Court decision of R. v. Garofoli (1990), 60 C.C.C. (3d) 161, applies at the preliminary hearing stage.

[4] Only if leave is granted, and only upon completion of the permitted cross-examination, does the reviewing judge then consider either modifying the ITO (adding or excising information) and, if at a trial, determining the attendant issue of Charter compliance.

Facts Underlying the Investigation

[5] First, a review of the background. The Strathroy-Caradoc Police Service (SCPS) began an investigation into the applicant and his property at 23153 Christina Road in Mt. Brydges. This was prompted by information received from a confidential human source who alleged marijuana possession and its production. Police follow up, according to the affidavit of Detective Gilles Philion, confirmed the applicant owned and occupied the premises at 23153 Christina Road and that the applicant had before been charged with marijuana possession.

[6] Further police action led to, according to Detective Philion, confirmation of much what was imparted by the informant, including details about the residence such as its colour and size, the presence of a dog on the property, the phone number associated with that particular address, the presence of outbuildings, and the fact the applicant drives a work truck and blue Toyota.

[7] Hydro consumption records were obtained which showed what police believed to be unusually high energy readings. According to the ITO, this was determined after a comparison with the consumption records of adjacent homes.

Applicant's Concerns with the ITO

[8] The applicant is concerned with, and highlights the following within the ITO:

• the lack of information respecting the confidential source's motivation;
• the fact this source had never before worked for the police;
• the fact the affiant doesn't consider alternative explanations for the high energy readings;
• that no people were observed at the residence during police surveillance; and
• the precise number of times the police drove by the residence is absent from the ITO.

[9] The applicant contends the information received is only minimally corroborated, and that the source is unproven. His position is this should lead me to grant permission to cross-examine. He argues that to deny this application would amount to an infringement of his ability to make full answer and defence.

Legal Analysis of the Dawson Test

[10] The defence must show a reasonable likelihood that cross-examination will elicit testimony of probative value to the issue for consideration by the reviewing judge (R. v. Pires; R. v. Lising, 2005 SCC 66 at paras. 3, 35 and 40). Some take the view this stands for the proposition that Dawson is no longer good law. The argument being this - that the "issue for consideration" for a preliminary hearing judge is whether or not there is sufficient evidence to warrant a committal to stand trial. This is a relatively low threshold and is one which requires the judge to take the Crown's case at its highest and to, in only certain circumstances, engage in a limited weighing of the evidence. The logical extension of this being, because a preliminary hearing judge cannot find Charter violations, this is not an "issue for consideration"; at least not at this stage, and not for this particular court. This starkly put position has not yet been adopted by an appeal court, but it is not an unreasonable interpretation. I don't adopt this reasoning, but I understand it.

[11] The court in Pires & Lising defines the "issue for consideration" as whether, on the ITO as a whole, there is any basis on which the issuing Justice could have been satisfied there were reasonable grounds to issue the warrant (see para. 40). If the proposed questioning falls within the narrow confines of this review, the applicant doesn't need to demonstrate that the cross-examination will be successful in discerning at least one of the statutory preconditions for issuance. What must be established is a 'reasonable likelihood' that the examination will assist the court.

[12] As the reviewing judge, I must be mindful of two things. First, that this is not an onerous test. Second, that I shouldn't refuse leave simply because other portions of the ITO would support the warrant. I must focus on the likely effect of the requested cross-examination and to specifically consider whether there is a reasonable likelihood it will undermine the basis of the order.

Court's Reasoning and Conclusion

[13] The application fails for the following reasons:

• first, the applicant has not tendered extrinsic contradictory evidence (as was the case in Garofoli).
• second, he has not persuaded me that the ITO has facial validity issues.
• third, he has not pointed to any part of the record which would tend to show the affiant has inaccurately or unfairly presented the information.

[14] None of the proposed questions, as set out in Part IV of the applicant's factum, fit within the scope elaborated upon by Justice Sopinka in Garofoli (paras 112-113):

….when permitted, the cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted

[15] What the applicant seeks to do is, in part, ask questions and learn more about the confidential human source. He otherwise seeks to establish dates of phone calls and emails; to seek clarification on the police surveillance; and to, I believe, uncover certain redacted portions of the ITO. The position is basically to suggest possible inconsistencies and to highlight omissions.

[16] I reject the applicant's argument. I have heard nothing to suggest the proposed areas of cross-examination would tend to undermine the precondition for the issuance of the CDSA search warrants issued in this case. I agree with the Crown's assertion that there appears to be a certain level of confusion between the general notion of relevance and the purpose of examining the affiant of an ITO.

[17] The application is dismissed.

August 29, 2014

Justice Jonathon C. George