Court File and Parties
Date: June 27, 2018
Court File No: 17-1412
Ontario Court of Justice
Between:
Her Majesty the Queen
-and-
Collin Kaseke
Before: Justice Michael G. March
Heard on: June 27, 2018
Reasons released on: June 27, 2018
Counsel:
Timothy McCann – Counsel for the Crown
Tyler Botten – Counsel for the Accused
Reasons for Decision
March, M.G., J.:
Introduction
[1] The Applicant, Mr. Kaseke, brings a Dawson application seeking leave to cross-examine the affiant, Detective Constable St. Cyr on his ITO a search warrant to search Kaseke's residence sworn October 30, 2017. The warrant was issued by the review justice and is thus a presumptively valid court order.
The Test
[2] In every Dawson application, the test is whether there is a reasonable likelihood that the proposed cross-examination will assist the court in determining a material issue. Of course, one such material issue is the sufficiency of the grounds for issuance of the search warrant. The reasonableness and the honesty of the affiant's belief in such grounds are highly relevant. In turn, the affiant's belief is formed through, in many instances, and particularly in this case, the credibility and reliability of the two C.I.'s consulted by the affiant, Detective Constable St. Cyr.
[3] The Applicant's counsel thus specifically seeks to cross-examine the affiant on the following areas:
- (i) unclear terms used by Detective Constable St. Cyr;
- (ii) clarification of potentially misleading statements used by the affiant, and
- (iii) affiant's means for concluding the C.I.'s were credible and reliable.
[4] The Crown asks me, rightfully so, to be guided by four governing principals; namely:
- (i) the avoidance of prolix proceedings;
- (ii) the need to protect C.I. privilege;
- (iii) amplification; and
- (iv) the proper test for determination of the sufficiency of the ITO.
The Areas of Cross-Examination
[5] The first area the defence seek to cross-examine on is the reference in Detective Constable St. Cyr's ITO to "producing cocaine". It is mentioned at paragraphs 23, 51 and 65 of his affidavit. At paragraph 31 of Detective Constable St. Cyr's affidavit, there is reference to "cutting" and "cooking" cocaine.
[6] Clearly, the defence should be entitled to probe whether, in a generic sense, that is what is meant by "production". C.I. No. 1 refers to what appears to be first hand information of the processing of the cocaine that takes place within Mr. Kaseke's residence and who engages in it. If something else is meant by "producing", the defence should be entitled to seek clarification of the meaning of "producing".
[7] The second area deals with Detective Constable St. Cyr's reference in Paragraph 39 of the ITO to 154 police occurrences Mr. Kaseke has had between 2003 and 2017. He then goes on to list five incidents related to the current investigation of Mr. Kaseke.
[8] Neither Crown nor defence disagree that CDSA investigations are what is relevant in this case. The reference to 154 was presumably made for a purpose, but the defence, certainly can attempt to establish that only five prior incidents had any possible bearing on the statutory proceedings for issuance of the search warrant.
[9] The third area for cross-examination addresses the honesty and reasonableness of the affiant's belief in the credibility and reliability of the two C.I."s utilized. Specifically, the defence wishes to ask about the length of time the C.I.'s were assigned numbers by the Ontario Provincial Police. I will allow such questions. It is generic information. It does not jeopardize C.I. privilege. It certainly helps the court to understand somewhat. Detective Constable St. Cyr's claim that the C.I.'s are "proven and reliable". Equally, it fulfils more so the duty of the affiant to be full, fair and frank.
[10] In paragraph 22 of his ITO, Detective Constable St. Cyr refers to the execution of CDSA warrants at Mr. Kaseke's residence in the past. Later at paragraphs 41 to 45 – Detective Constable St. Cyr lists five specific incidents where Mr. Kaseke was either present at the scene, in possession of drugs, or a suspect in an investigation. The defence seeks to establish which, if only, previous CDSA warrants were executed at Mr. Kaseke's residence or residences. Those questions shall be permitted. Again, any attempt to misinform the issuing justice violates the duty to be full, frank and fair.
[11] Lastly, the defence counsel seeks to cross-examine on specific questions set out at paragraphs 22 and 23 of his Factum.
First Question – Paragraph 22(a):
(a) Have search warrants ever been granted based solely, or in part, on information provided by confidential informer #1, and if not, why was that information not included in the ITO?
In my view, this is not potentially useful evidence to the defence. It does not assist in the basis of assessing the Justice's grounds for issuing the search warrant granted in this case. It goes beyond the totality of the evidence put before the issuing Justice.
Second Question – Paragraph 22(b):
(b) Has confidential informer #1 previously provided information that lead to any arrests, charges, seizures, or convictions, and if not, why was that information not included in the ITO?
I will not allow that question. It may be a useful point for the defence to make submissions at a later stage, but not at this juncture.
Third Question – Paragraph 22(c):
(c) How long has confidential informer #1 been a numbered informer with the Ontario Provincial Police, and why was that information not included in the ITO?
Already dealt with earlier in these Reasons. The question will be allowed.
Fourth Question – Paragraph 22(d):
(d) Upon what basis does the affiant make the assertion at paragraph 8 of the ITO that "Informer #1's information revealed to be credible"?
I will allow this Question. This conclusory statement needs to be clarified.
Fifth Question – Paragraph 22(e):
(e) Has informer #1 provided information "in excess of five times" prior to this investigation, or does that number include the information provided in this investigation, and if so, why was that not made clear in the ITO?
I will allow this Question. It is ambiguous. How it informs the affiant's belief in CI #1's credibility and reliability must be clarified.
Sixth Question – Paragraph 23(a):
(a) What is meant by the assertion at paragraph 13 of the ITO that "information provided by Informer #2 has been used in previous Controlled Drugs and Substances Act", and why was no further detail as to the meaning of that phrase included in the ITO?
I will allow this Question. As worded, it makes no sense. It certainly goes to the issue of the affiant's belief in the C.I.'s credibility and reliability based on a supposed, proven track record.
Seventh Question – Paragraph 23(b):
(b) Has confidential informer #2 previously provided information that led to any arrests, charges, seizures, or convictions, and if not, why was that information not included in the ITO?
I will not allow this Question. It may be a useful point for the defence to make in submissions at a later stage, but not at this juncture.
Eighth Question – Paragraph 23(c):
(c) How long has confidential informer #2 been a numbered informer with the Ontario Provincial Police, and why was that information not included in the ITO?
Already dealt with earlier in these Reasons. Question will be allowed.
Ninth Question – Paragraph 23(d):
(d) Upon what basis does the affiant make the assertion at paragraph 13 of the ITO that "Informer #2's information revealed to be credible"?
I will allow this Question. This conclusory statement needs to be clarified.
Tenth Question – Paragraph 23(e):
(e) How many times has confidential informer #2 provided information to police prior to this investigation, and why was that information not included in the ITO?
I will allow this Question. Again, where the claim is made by Detective Constable St. Cyr that C.I. 2 is proved and reliable, a more specific explanation of C.I. 2's history of use by police is called for. It will inform, or correct perhaps, Detective Constable St. Cyr's claim that C.I. 2 was proven and reliable.
Conclusion
[12] I will permit the Federal Crown to review this Dawson ruling with Detective Constable St. Cyr with a view to preparing him for testifying later today at the P.I. and to safeguarding C.I.'s privilege. Clearly, C.I. privilege is paramount. Nothing can be mentioned in evidence by Detective Constable St. Cyr which may tend to identify either C.I. 1 or C.I. 2.
Dated: June 27, 2018
The Honourable Mr. Justice M. March