Court File and Parties

Ontario Court of Justice

Date: 2018-02-02

Court File No.: Newmarket 14 09038

Between:

Her Majesty the Queen

— and —

Richard Glen Allison

Before: Justice David Rose

Heard on: January 12 and 18, 2018

Reasons for Judgment released: February 2, 2018

Counsel

Mr. L. O'Neill — counsel for the Crown

Mr. N. Stanford — counsel for the accused Richard Allison

Judgment

David Rose J.:

[1] Introduction

[1] On January 12 and 18 Mr. Stanford applied for leave to cross-examine Det. Quibell of York Regional Police (YRP) on his Information to Obtain (ITO) a Production Order to seize bank records. On January 18 Mr. O'Neill asked that the balance of Mr. Allison's Charter Application be dismissed because it is frivolous. After hearing oral argument on both issues I granted the Crown's request with reasons to follow. These are those reasons.

Background

[2] Mr. Allison appeared before me for trial on an 11 Count Information alleging the following:

i. Defrauding No Panic Computing Over $5000 between 19 March 2014 and 16 September 2014;

ii. Knowing a summary invoice to be forged, using it as if it were genuine between 19 March 2014 and 16 September 2014;

iii. Obtaining Merchandise from Larry Keating over $5000 by false pretence and with intent to defraud from 19 March 2014 and 16 September 2014;

iv. Make a false statement in writing for purposes of paying himself $91,875.00 between 19 March 2014 and 16 September 2014;

v. Using money with intent to convert it knowing that it has been obtained by the offence of Fraud Over $5000.00 from 11 July 2014 and 18 July 2014;

vi. On 30 October 2013 use money with intent to conceal or convert it knowing that it has been obtained by commission of Fraud Over $5000;

vii. Between 13 May 2013 and 12 November 2013 defraud Replicon of more than $5000.00;

viii. Between 13 May 2013 and 12 November 2013 knowingly use a forged sales agreement as if it were genuine;

ix. Between 13 May 2013 and 12 November 2013 Defraud Replicon of money exceeding $5000.00 in value;

x. Between 13 May 2013 and 12 November 2013 use a false sales document for the purpose of paying himself $11,527.14;

xi. Between 10 October 2014 and 11 October 2014 defraud Bank of Montreal of more than $5000.

[3] At the conclusion of the Crown case, Mr. O'Neill directed a stay of Counts 6 – 11 under s. 579 of the Criminal Code. Mr. Stanford asked for a directed verdict on Count 5, which Mr. O'Neill did not oppose. Therefore, only Counts 1 – 4 are still before me.

[4] Three Production Orders were sought in this prosecution by Det. Quibell. The first was September 23, 2014, the second October 5, of 2017, and the third in November of 2017. The first two Production Orders were obtained under s. 487.013 of the Criminal Code, and the third under s. 487.014. Between the granting of the second and third Production Orders, Mr. Allison filed an Application dated October 16, 2017 alleging that his rights under s. 8 of the Charter were violated because Det. Quibell obtained the first two Production Orders under the wrong section of the Code. The Charter Application says that the first two Production Orders should have been granted under s. 487.014 and not 487.013.

[5] Mr. Allison filed a second Charter Application dated December 14, 2017 alleging that the procedure outlined above was an abuse of process. To quote Mr. Allison's Charter Application:

The actions of the police and Crown strongly suggest that, after reviewing the Applicant's October 16, 2017 Charter Application, they felt the first two production orders would be found invalid. Rather than attempting to defend the admissibility of the bank records under s. 24(2), the Crown did not file a response to the Applicant's Charter application and instead played an active role in obtaining a new, simultaneous production order.

The Charter Application – Leave to Cross-Examine

[6] On January 11, 2018 I dismissed the limb of the Charter Application which alleged an abuse of process on the part of the Crown see R. v. Allison, 2018 ONCJ 33. Mr. Stanford then moved to cross-examine Det. Quibell on the following topics:

i. Whether it was deliberate on the part of the affiant not to include the first two production orders in the ITO for the third;

ii. Whether he reviewed the Applicant's Charter Application to prepare for the ITO on the third Production Order;

iii. Why the officer did not disclose that he reviewed the Applicant's Charter application in the third ITO;

iv. Did Det. Quibell receive legal advice for the third Production Order;

v. Why he applied for the third Production Order;

vi. What motivated the officer to make the amendments that he ultimately did to ITO;

vii. What use the affiant made of the bank records post seizure;

viii. Once Det. Quibell found out that the previous ITO's were not valid did he hold on to the bank records;

ix. What was Det. Quibell's role within the professional standards bureau of YRP.

[7] Aside from cross-examining Det. Quibell on his ITO for the third Production Order Mr. Stanford advised in oral submissions that he wished to call Mr. O'Neill to be cross-examined on whether it is the Crown policy to review production orders and search warrants with a view to determining if evidence is lawfully obtained absent a defence Charter Application, and also whether the Crown was aware in this case that the evidence obtained from the first two production orders was unlawfully obtained. Mr. Stanford said that if the Charter Application is permitted to proceed that is all the evidence he would call, other than the Application record itself.

[8] The Charter Application contains the ITO for the third Production Order. In it Det. Quibell refers to the first two Production Orders, when they were granted, by whom and what was obtained. He then included the following paragraph:

The informant subsequently realized that these 2 production orders were inadvertently submitted under s. 487.013 of the Criminal Code of Canada. The informant is now swearing to this Production Order pursuant to section 487.014 of the Criminal Code of Canada which the informant now believes is the proper section of the Criminal Code for obtaining these documents and data. However, the informant is seeking the exact same data as previously provided by the Bank of Montreal following the granting of the Production Order on October 5, 2017.

[9] Mr. Stanford said in argument that he will not be alleging that this paragraph is incorrect. He wants to argue that it is materially incomplete. He would not argue that the bank records were irrelevant to the prosecution as it was at the time the third Production Order was granted, nor does he allege that there is an ulterior motive at play in the application and issuance of the third Production Order. Mr. Stanford argued that the gist of Mr. Allison's Charter Application is that the police used the first defence Charter Application to get another Production Order. The abuse of process occurred, therefore, before the issuance of the third Production order. The abuse of process is that the Crown did not review the first two production orders for lawfulness. The Crown, as Mr. Allison alleges, can never lead evidence which it believes to be unlawfully obtained.

[10] The Charter Application therefore alleges that, since there is no evidence before the Court which might be exposed to an exclusionary remedy under s. 24(2), the manner in which the Third Production Order was granted should yield a stay of the remaining charges, even if they have nothing or little to do with the Production Order.

Leave to Cross-Examine – Jurisdiction

[11] I am quite doubtful that I have jurisdiction to entertain an Application for leave to Cross-examine Det. Quibell in the circumstances. There is no Charter Application sounding in Section 8 and leave to cross-examine is not being sought on that basis. When Mr. O'Neill stayed Counts 6 – 11 he extinguished any need to call evidence gathered from any of the three Production Orders. While the Production Orders may have been relevant at a point in time, they no longer play a part in the evidence gathering for the remaining charges.

[12] The test for leave to cross-examine is rooted in the ability of the defence to mount a challenge under s. 8 of the Charter to quash a prior judicial authorization. I do not read any of the authoritative pronouncements on the topic of leave to cross-examine as flowing from any other issue. When granted, leave to cross-examine must be narrowly focused on the Charter Application's allegation that the authorization must be quashed. Sopinka J.'s words from R. v. Garofoli, [1990] 2 S.C.R. 1421 at paras. 111 and 112 were clear on this:

Leave must be obtained to cross-examine. The granting of leave must be left to the exercise of the discretion of the trial judge. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as, for example, the existence of reasonable and probable grounds.

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

Emphasis added.

[13] Subsequent reviews by the Supreme Court have upheld this standard, see for example R. v. Pires, R. v. Lising, 2005 SCC 66 at par. 10. Evidence of fraud, material non-disclosure, or misleading information are all relevant to this inquiry but the inquiry is still whether there is any basis on which the judicial authorization could be granted. See Garofoli (supra) at par. 113 or more recently R. v. Paryniuk, 2017 ONCA 87 at par 60.

[14] Efforts to expand the inquiry beyond s. 8 have not met with success. In R. v. Green, 2015 ONCA 579, the accused sought leave to cross-examine the affiant of a search warrant for purposes relevant to the admissibility inquiry under s. 24(2) of the Charter. This was denied. As Doherty J. put it:

Garofoli and Pires speak to the possibility of cross-examination going to the "basis upon which the authorizing judge could grant the order". Section 24(2) considerations have nothing to do with "the basis upon which" a justice could grant the warrant.

Cross-examination on issues relevant to s. 24(2) goes well beyond considerations relevant to the validity of the warrant. Cross-examination on s. 24(2) issues at a point in time when the accused has not shown any basis upon which to challenge the validity of the warrant is at odds with the judicial economy rationale underlying Garofoli and Pires. An expansion of the grounds upon which an affiant may be cross-examined to include issues relevant to s. 24(2) when those issues are entirely irrelevant to the proceedings, absent a finding that the warrant should not have been granted, is not an effective and efficient use of judicial resources. Expanding the ambit of cross-examination of the affiant to encompass issues relevant to s. 24(2) when there is no basis to permit cross-examination on the validity of the warrant itself, is in reality an attempt to justify cross-examination for one purpose - to establish grounds to exclude under s. 24(2) - in the hope that the cross-examination will uncover a basis upon which to attack the validity of the warrant, demonstrate a breach of s. 8, and thereby make s. 24(2) relevant. This approach seems to put the proverbial cart before the horse.

[15] The Court of Appeal was not willing to recognize jurisdiction for leave to cross-examine for purposes of furnishing evidence useful to s. 24(2) of the Charter. It strikes me that the Applicant asks me to go even further than that and hear a leave to Cross-Examine Application for an even more distant purpose, namely establishing an overarching abuse of process.

[16] Part of the problem with this Application for leave to cross-examine is what the test is in the circumstances. Garofoli and its progeny provide an established roadmap for the test to applied when there is s. 8 Application namely, that "cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as, for example, the existence of reasonable and probable grounds" (supra). That is inapplicable when the Application does not in s. 8 of the Charter because the validity of the warrant, in this case a Production Order, is not in dispute. Again, there are no charges which rely on any of the documents obtained from any of the Production Orders. I would describe the three Production Orders as only distantly related to the charges before me, if not complete strangers.

[17] I therefore find that I have no jurisdiction to entertain an Application for leave to cross-examine an affiant which is not grounded in a s. 8 Charter Application.

Abuse of the Search Warrant Process

[18] An Application for prior judicial authorization may be exposed to attack as an abuse of process. This includes situations where the police have an ulterior motive which is not disclosed to the issuing justice. All reported decisions consider this as a basis upon which to quash a warrant. In R. v. Colbourne (2001), 157 C.C.C. (3d) 273, Doherty J. found that an attempt to mislead a justice by not disclosing the true purpose of the search warrant would still speak to whether on review there still exists grounds upon which the warrant could be issued. As DeLuca J. put it, the Applicant would have to show that "…the police hid the true purpose of the search warrants from the issuing justice and that if the true purpose had been disclosed no issuing justice could issue the warrants". See R. v. Ricciardi, 2017 ONSC 2788 at par. 33. In R. v. Powell, 2017 ONSC 6482, the affiant failed to disclose to the justice that the search warrant was sought merely for a tactical advantage. The affiant in that case admitted that there was no need to obtain the warrant, and the real purpose for the prior judicial authorization was merely to demonstrate at trial that the evidence was discoverable. As K. Campbell J. said, at para. 100:

This abuse of the search warrant process should not have been undertaken — and should not be repeated. Search warrant applications, like any similar prior judicial authorization process, must be pursued in good faith, and brought for the purpose for which the process was designed — to provide judicial authorization for police evidence-gathering investigative endeavours.

[19] I am therefore prepared to find that, in law, an abuse of the search warrant process will have occurred if the applicant has an ulterior motive for the authorization and that ulterior motive is not disclosed to the issuing justice.

[20] Cast against that jurisprudence, in the case at Bar there is no allegation of an ulterior motive. The Applicant concedes, fairly in my view, that Det. Quibell was seeking the production of documents which were relevant to the charges which were then before the Court. Furthermore, the true purpose of the Third Production order was plainly disclosed, namely to correct a procedural mistake in the identified section of the Criminal Code which yielded the first two. There is no suggestion that that paragraph is incorrect. It may have been, as Mr. Stanford argues, that the paragraph outlining the reason for the third Production Order failed to include ancillary information such as the reason why Det. Quibell came to believe that the first two Production Orders proceeded under the wrong section number. But nothing in the Application even approaches the level of a lack of good faith, or ulterior or oblique motive.

[21] Mr. Stanford argued that the gist of the abuse of process in this case is that the Crown and police used Mr. Allison's Charter Application to discover a flaw in the case against Mr. Allison – namely that the first two Production Orders were issued under the wrong section of the Criminal Code. This, he argues, was not open to them. As he argued, the Crown has an independent obligation to scrutinize the evidence in a case, and cannot lead any evidence which is obtained unlawfully. This misconstrues the nature of Charter litigation. Firstly, it is for a Court to determine if evidence is unlawfully obtained and then determine what if any remedy should follow. The Crown may make its own determination about how to present a case, but the Crown does not have the final say. Secondly, the onus of establishing a Charter violation is on the Accused, not the Crown. Absent an Application to exclude evidence because of a Charter violation the Crown is entitled to present its case on the basis that the constitutionality of its evidence is not in dispute. One obvious example of this comes to mind. In drinking and driving cases, breath sample evidence is commonly presented in court on the basis of a warrantless seizure. This is presumptively unreasonable in law, see Hunter v. Southam, [1984] 2 S.C.R. 145, but the lawfulness of the seizure is only a trial issue if the defendant files a Charter Application: see R. v. Haas (2005), 76 O.R. (3d) 737 (C.A.). Absent a Charter Application by the accused the Crown need not prove the lawfulness of a seizure: see R. v. Alex, 2017 SCC 37.

Calling the Crown Attorney to Testify

[22] Mr. Stanford submitted that the Charter Application would include evidence from Mr. O'Neill himself to testify viva voce about whether it is Crown policy to review productions orders and search warrants with an eye to determining whether evidence is lawfully obtained absent a defence application, and was the Crown aware that the evidence obtained by the first two Production Orders was unlawfully obtained.

[23] Calling opposing counsel to testify in a proceeding is possible but uncommon. I take the threshold for permitting such a procedure to be high. In R. v Sungalia, [1992] O.J. No. 3718, A. Campbell J. said:

Crown counsel and defence counsel are subject to the process of the court. They are not immune from subpoena.

As a practical matter, however, criminal litigation would be impossible if Crown counsel had the unrestricted right to call defence counsel as a witness or if defence counsel had the unrestricted right to call Crown counsel as a witness.

There is a persuasive burden on the lawyer who seeks to force opposing counsel to go into the witness box and relinquish his role as counsel. The persuasive burden is to show relevance and necessity.

[24] I would not permit such a procedure in this Charter Application. The first point Mr. Stanford wants to ask Mr. O'Neill about is a matter of public policy which could be established any number of ways other than calling opposing counsel. The second is of dubious relevance given my ruling above about the nature of an abuse of the search warrant process. It is certainly not necessary for that evidence to come from Mr. O'Neill. Mr. Stanford declined the opportunity to call any other viva voce evidence on the Charter Application other than cross-examining Det. Quibell, and from Mr. O'Neill.

Ultimate Disposition

[25] Mr. O'Neill argues that the test for a stay of proceedings, which is the only remedy being sought by Mr. Allison, is extremely high, see R. v. Babos, 2014 SCC 16 at paras 30 – 32. There is no dispute that the remaining charges in this trial do not touch on the impugned Production Orders. The Crown has stayed all of those counts. He asks that the Charter application be dismissed because there is no basis upon which the application could succeed, or is frivolous: see R. v. Cody, 2017 SCC 31, R. v. Jordan, 2016 SCC 27. For the foregoing reasons I agree. The balance of the Charter Application is dismissed.

Obiter Comments

[26] Given the result, it is not necessary for me to consider the relevance of the proposed questions in the Application for leave to cross-examine Det. Quibell. However, since time was spent arguing the point in Court I would make the following comments. Question i. is directed at whether the Affiant's disclosure of the first two production orders in the third was sufficiently full. I find it of dubious relevance to a stay application. Questions ii. and iii. are directed at why Det. Quibell came to know that the first two Production Orders proceeded under the wrong section of the Criminal Code. This too I would find irrelevant to the application to stay the proceedings, as are questions iv. and vi. Question v. might potentially be relevant if there was a basis for a finding that there was an abuse of process, but there isn't, see R. v. Rutigliano, 2015 ONCA 452. Questions vii. and viii. are directed at events which followed the issuance of the third Production Order. I do not understand how an affiant could be cross-examined on events subsequent to an affidavit. Question ix is completely irrelevant to anything having to do with the trial issues as they have arisen so far or identified.

Released: February 2, 2018

Signed: Justice David S. Rose