CITATION: R. v. White, 2018 ONCJ 176
COURT FILE No: 17-1014
DATE: February 7, 2018
O N T A R I O C O U R T OF J U S T I C E
B E T W E E N :
HER MAJESTY THE QUEEN
-AND-
RONALD WHITE
Before Justice Michael G. March
Heard on February 2, 2018
Ruling released on February 7, 2018
TIMOTHY MCCANN.……………………………………………….Counsel for the Crown
ADRIAN CLEAVER ……………………………………………….Counsel for the Accused
M.G.March, J. :
Introduction:
The Defence has brought a Dawson application seeking leave to cross-examine on the affidavit of Cst. Longo of the Upper Ottawa Valley Ontario Provincial Police (“UOVOPP”) – an Information to Obtain (“ITO”) – sworn July 19, 2017. The preliminary inquiry of the accused, Ronald White, has been scheduled for March 2, 2018.
The ITO sets out the reasonable and probable grounds the officer had for believing that an offence under the Controlled Drugs and Substances Act had been committed. Fundamentally, it is the basis upon which the warrant to search the accused’s residence at 3260 Lake Dore Road in Golden Lake was judicially authorized. Defence counsel has identified essentially four issues upon which he seeks to cross-examine the affiant. They are:
(1)(a) What inquiries the affiant, Cst. Longo, would have made about the criminal record of the confidential informant (“CI”) to satisfy himself of the CI’s credibility?
(b) What types of entries on a criminal record would cause Cst. Longo to have concerns about the CI’s credibility?
(2)(a) What concerns, if any, did Cst. Longo have about the CI’s inability to name the suspected drug trafficker?
(b) What impact, if any, did the CI’s belief the suspect lived alone have on his assessment of the CI’s credibility or reliability?
(3) In respect of two incidents where there was police involvement with the suspect’s residence, namely September 30, 2016 and November 13, 2007, why did Cst. Longo not explain the outcome of them in the ITO?
(4) Whether there was any exchange between Cst. Longo and the presiding Justice of the Peace between the seeking of authorization for the subject search warrant and its issuance?
The Law
Since Garfoli[^1] and Dawson[^2], the law has been clear that there is no right to cross-examine an affidavit on an ITO at either the preliminary inquiry or the trial. Leave of the Court must first be obtained. The ultimate test in deciding whether to grant leave is whether the intended areas of cross-examinations are necessary for the accused to make full answer and defence. Evidence elicited by such cross-examination that would tend to discredit the existence of one of the pre-conditions to the issuance of a search warrant would be a prime example of one of the manners in which to make full answer and defence. Put another way, will the proposed cross-examination have a reasonable likelihood of assisting the Court in determining a material issue?[^3] The test is not a stringent one.[^4]
Of course, the cross-examination must have probative value and be grounded in relevance and materiality. The proceedings, in this case a preliminary inquiry, cannot become prolix. Nor can the Court permit evidence to be elicited during cross-examination which would tend to identify the CI. The protection of CI privilege is always of paramount concern to the Court. An appropriate balance must be struck between the right to make full answer and defence, and the public interest in fair, efficient use of judicial resources and a timely determination of criminal proceedings. It must be borne in mind as well that the authorization to grant a search warrant is a Court Order and thus is presumptively valid.
Analysis
I do not see that the defence’s proposition to probe issues (1)(a) and (b) above will jeopardize CI privilege – even in the slightest. An argument may be made by the defence eventually about an abdication of responsibilities to another officer of the UOVOPP to investigate the criminal background of the CI. One may query Cst. Longo’s conclusion that the CI was “proven reliable” when he did little, if anything, to substantiate, on his own, the track record of the CI in question. It certainly would have some relevance to the adequacy of the ‘reasonable and probable grounds’ put before the presiding Justice of the Peace in seeking authorization for the warrant.
With respect to delving into issues (2)(a) and (b), an inability on the part of the CI to be able to name the suspect does discredit to a degree the CI’s claim to have been to the suspect’s house “numerous times”. One might expect the CI to at least have committed a first name for the suspect to his or her memory, if that were the case. Equally, the CI’s belief that the suspect lived alone, if in fact the suspect did not live alone for a lengthy period of time, would undermine the CI’s claim to having frequented the suspect’s residence. Again, this type of cross-examination on the affiant, Cst. Longo, would not touch upon any areas, in my view, which might reveal the identity of the CI.
Regarding issue (3), the failure of the affiant, Cst. Longo, to elaborate more fully on what the outcome of police involvement with the suspect was on September 30, 2016 and November 13, 2007 may serve to challenge the affiant, Cst. Longo’s obligation to be full, fair and frank. It is, of course, the totality of the ‘reasonable and probable grounds’ set out in the ITO which must be reviewed at the end of the day. If reference to those incidents ought to be excised altogether, the reviewing justice at trial on a Charter challenge, not I as a preliminary inquiry judge, could be assisted with knowing what the full scope of that additional information is. However, there is nothing wrong with the defence attempting to explore this area at the preliminary inquiry.
In connection with issue (4), the possible exchange between the authorizing Justice of the Peace and Cst. Longo when he picked up the signed search warrant, I do not expect this line of questioning by the defence will take long. If the Justice of the Peace had difficulties with Cst. Longo’s grounds, considered collectively, I would expect in this instance, Her Worship, Justice of the Peace Mitchell, would have refused to authorize the search. I anticipate no time will be wasted by allowing defence to explore this area, although much may turn on the answer obtained. In any event, I will allow the question.
Conclusion
- The defence shall be permitted to cross-examination on all of the identified areas. I will, of course, be ever vigilant to ensure that the questions remain relevant and material. I will be keenly protective over CI privilege; however, as earlier stated, I fail to see how it could be jeopardized in any possible way.
The Honourable Justice M. March
Footnotes:
[^1]: R v. Garfoli 1990 CanLII 52 (SCC), [1990] 2 SCR 1421 (SCC) at para. 88.
[^2]: R v. Dawson 1998 CanLII 1010 (ON CA), [1998] O.J. No. 1039 (Ont. C.A.) at para. 18; R v. Pires and Lising, 2005 SCC 66, [2005] SCJ No. 67 9SCC at paras. 9, 10 and 40.
[^3]: R v. Hurley [2009] ONCJ 342 at paras. 20 to 24
[^4]: R v. Williams 2003 CanLII 18484 (ON CA), [2003] O.J. No. 5122 (Ont. C.A.) at para. 11.