Court File and Parties
Ontario Court of Justice
Date: 2018-06-14
Court File No.: Ottawa 17-F5485-01, 17-F5485-02
Between:
Her Majesty the Queen
— and —
Salim Glasner and Tara Dewache
Before: Justice Jacqueline V. Loignon
Dawson Application Ruling
Counsel
Ms. K. Mohr — counsel for the Federal Crown
Mr. J. Legault — counsel for the Applicant, Salim Glasner
Mr. D. Baum — counsel for the Applicant, Tara Dewache
Decision
LOIGNON J.:
[1] Background and Charges
The Applicants are charged with a number of drug offences under the Controlled Drugs and Substances Act and Criminal Code arising out of the alleged sale of fentanyl. The charges were laid following a search of the accused Glasner's residence at 475 Richardson Avenue, Ottawa, authorized by a warrant granted by Justice Alder pursuant to the Controlled Drugs and Substances Act.
[2] Application for Leave to Cross-Examine
The Applicants have elected to be tried in the Superior Court of Justice and now seek leave, at this preliminary inquiry, to cross-examine the Affiant who swore the Information to Obtain (ITO) in support of the search warrant. The basis of the application is that there is a reasonable likelihood that the outcome of the cross-examination will have an impact on a forthcoming challenge to the constitutionality of the search and the admissibility of its fruits.
Standing: Tara Dewache
[3] Standing Analysis
Counsel for Ms. Dewache argues that she ought to have standing to challenge the constitutionality of the search notwithstanding the absence of any evidence of residency at 475 Richardson Avenue on the basis of the Supreme Court of Canada decision in R v. Marakah, 2017 SCC 59. That decision dealt with a text message sender's standing to argue a section 8 violation with regard to the recipient's phone. In my view, the standing argument made in both Marakah and its companion case R v. Jones, 2017 SCC 60, is circumscribed to the technological context, namely, cell phones. There is nothing in either decision which suggests that R v. Edwards, [1996] 1 S.C.R. 128, has been revisited in the dwelling house context. As a result, given the absence of evidence regarding Ms. Dewache having a direct interest in the subject matter (the residence), the absence of any evidence that she had a subjective expectation of privacy in the house or that this expectation was reasonable, I find that she has no standing in the present application.
Salim Glasner Application
[4] Issues for Cross-Examination
The Applicant seeks leave to cross-examine the ITO affiant on the following issues, as set out in the notice of application:
Paragraph 2.05
a) How did the Affiant find that the confidential informer (CI) had no motive to fabricate information in relation to this investigation? Did he consider that the CI is financially motivated?
b) At what point did the CI get compensated? How desperate was the CI for money? Did this factor get taken into consideration when stating that the CI had no motive to fabricate?
c) Why was the CI not questioned about his knowledge of fentanyl?
Paragraph 2.06
a) Does the confidential informer have a criminal record for offences of dishonesty?
Paragraph 3.02
a) Why did the Affiant omit the fact that the CI observed fentanyl in Mr. Glasner's bedroom in the initial ITO?
b) Conceded
c) Was any information gathered from the CI as to what the fentanyl looked like?
d) What was observed by the CI? What was hearsay?
e) Was anything done to try to corroborate the phone number given by the CI?
Paragraph 3.04
a) Was any surveillance conducted in this investigation and not included in this ITO and if so, why was it left out of the ITO?
Paragraph 3.06
a) Why did the Affiant omit the fact that 225 Lebreton is a multiunit dwelling?
b) Abandoned
c) How does the Affiant believe that the unknown male leaving with a clenched fist had just picked up fentanyl? Was any follow-up done in regards to the unknown male?
d) How does the Affiant believe that surveillance on July 13, 2017 helps to corroborate that Salim Glasner will use "Spencer's" place to deal drugs from?
Paragraph 3.08
a) How does the Affiant believe that a confirmed drug transaction had taken place on July 17, 2017? Was any follow-up done in relation to the Hyundai Tucson?
Paragraph 3.09
a) How does the Affiant believe that two confirmed drug transactions took place at the residence of 475 Richardson Avenue on July 19, 2017? Was any follow-up done with the driver of the Dodge Ram (license plate number AJ89012). Was any follow-up done with Thomas McCarthy?
b) Was Glasner ever observed either entering or leaving 475 Richardson Avenue?
c) Does the Affiant have any reason to believe that Glasner was at 475 Richardson Avenue on July 19, 2017?
Paragraph 3.10
a) Why did the Affiant's omit the fact that Glasner was only seen arriving at 475 Richardson Avenue at 6:15 PM on July 25, 2017? Does the Affiant have any reason to believe that Glasner was at 475 Richardson Avenue before 6:15 on that date?
b) How does the Affiant believe that three confirmed drug transactions took place at the residence of 475 Richardson Avenue on July 25, 2017?
c) Why is Steven Nelson believed to be a drug user? Where does this information come from?
Paragraph 3.11
a) How does the Affiant believe that Glasner conducted a hand to hand transaction on August 18, 2017? Was any follow-up done with the male referred to at 2:25 PM? Was any follow-up done in relation to the gold Cadillac? Was any follow-up done in relation to the person who went into the stairwell?
b) Abandoned
c) Who observed the male leaving and trying to inject the product?
Paragraph 3.12
a) Was anyone else listed as residing at 475 Richardson Avenue in the RMS query? If so, why was this not mentioned in the ITO?
b) Why was the RMS query not included as a source debrief?
Paragraph 3.13
a) Abandoned
b) Why was the new warrant ITO not brought back to JP Baum?
c) What time was a warrant brought to Justice Alder?
d) Was the initial warrant provided to Justice Alder?
e) Abandoned
f) What steps were taken by the Affiant to further corroborate the CI's statements after the first warrant was denied?
Paragraph 4.01
a) How the observations of short meets were consistent with drug transactions taking place?
Paragraph 4.02
a) What in terms of experience as an undercover operator led the Affiant to believe that there was fentanyl inside 475 Richardson Avenue?
Paragraph 5.01
a) What is the basis for the Affiant's belief that Glasner is a trafficker in fentanyl?
Paragraph 6.01
a) What are the Affiant's observations of seeing people picking up drugs directly from 475 Richardson Avenue? Does the Affiant consider whether there were innocent explanations for people attending 475 Richardson Avenue?
b) Does the conclusion that otherwise innocent behaviour is drug dealing come only from the information provided by the CI?
[5] Purpose of Cross-Examination
The Applicant seeks leave to cross-examine in order to challenge the existence of the preconditions to the authorization being granted including the existence of the requisite reasonable and probable grounds and the existence of any police misconduct in securing the warrant to search.
Legal Framework
[6] Dawson and Garofoli Applications
A Dawson application, or application to cross-examine an Affiant within the context of a preliminary inquiry, operates on the same principles as a Garofoli application. Such applications have a narrow focus; they are not intended to explore matters going directly to the guilt or innocence of the accused. As was stated by the Court in R v. Pires and R v. Lising, 2005 SCC 66, [2005] 3 SCR 343, at paragraphs 29-31:
At trial, the guilt or innocence of the accused is at stake. The Crown bears the burden of proving its case beyond a reasonable doubt. In that context, the right to cross-examine witnesses called by the Crown "without significant and unwarranted constraint" becomes an important component of the right to make full answer and defence: [citations omitted]
The Garofoli review hearing is not intended to test the merits of any of the Crown's allegations in respect of the offence. The truth of the allegations asserted in the affidavit as they relate to the essential elements of the offence remain to be proved by the Crown on the trial proper. Rather, the review is simply an evidentiary hearing to determine the admissibility of relevant evidence about the offence obtained pursuant to a presumptively valid court order.
The reviewing judge on a Garofoli hearing only inquires into whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed. (…) Even if it is established that information contained within the affidavit is inaccurate or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory preconditions.
It is in this narrower context that the right to cross-examine, as an adjunct as a right to make a full answer and defence, must be considered. There is no point in permitting cross-examination if there is no reasonable likelihood that it will impact on the question of the admissibility of the evidence.
[7] Basis for Cross-Examination
A basis must be shown by the accused 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" (R v. Garofoli (1990), 60 CCC (3rd) 161 p. 198). Within that narrow focus for the inquiry, there will of course be concerns of protecting informants, which will inevitably inform the parameters of cross-examination.
[8] Scope of Cross-Examination
Still in R v. Pires and R v. Lising, the following principles were put forward with respect to the scope of cross-examination:
i. The Garofoli leave requirement is simply a means of weeding out unnecessary proceedings on the basis that they are unlikely to assist in the determination of the relevant issues.
ii. The reason that the test will generally leave just a narrow window for cross-examination is not because the test is onerous – it is because there is just a narrow basis upon which an authorization can be set aside.
iii. In determining whether cross-examination should be permitted, Counsel and the reviewing Judge must remain strictly focused on the question to be determined on a Garofoli review – whether there is a basis upon which the authorising Judge could grant the order.
iv. If the proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted.
v. Importantly, if the proposed cross-examination falls within the narrow confines of this review, it is not necessary for the Defence to go further and demonstrate that cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization.
vi. A reasonable likelihood that it will assist the Court to determine a material issue is all that must be shown.
[at para. 36; as set out in Wiretapping and other Electronic Surveillance: Law and Procedure, vol 2 (Toronto: Canada Law Book, 2011) at p. 8-36.5]
[9] Unsupported or Conclusory Statements
Where the Applicant points to unsupported or conclusory statements which may have been misleading to the issuing justice, a basis may be demonstrated for cross-examination. (see R v. Pires and R v. Lising, supra at para 44, citing R v. Williams (2003), 181 CCC (3d) 414 (OCA)). Indeed, a line of cross-examination that has a tendency to show that the Affiant did not accurately state the knowledge or belief upon which their information was based will be relevant as it may support that the Affiant ought to have known that the information was not accurate. Also relevant is cross-examination, which demonstrates either the intentional or accidental omission of material information that ought to have been before the issuing justice, given the requirement for full and frank disclosure. The Applicant must establish a threshold showing that the Affiant failed to include information that was known to him or her (R v. Pires and R v. Lising, supra at paras 41, 43-44; R v. Reid, 2017 ONCA 430 at para 17).
[10] Limited Scope of Preliminary Inquiry
Within the above principles, it's also important to note that the courts have recognized the limited scope of the preliminary inquiry process. This is relevant when considering an application to cross-examine. R v. McLean, 2012 ONCJ 695. In R v. On, [2015] O.J.No. 6226, Justice Duncan observed the following in relation to the distinction between the application at a preliminary inquiry as opposed to a trial:
(7) I agree with the analysis in McLean and suggest that the following points are relevant to the distinction between the application of the test at preliminary (Dawson) as opposed to trial (Garofoli):
(a) An accused at a preliminary does not make answer and defence. At most he prepares to do so for trial. The requested cross-examination is for discovery purposes only. The accused's interests are less than where guilt or innocence is at stake.
(b) The purpose of a preliminary inquiry is to determine whether sufficient evidence exists to put the accused on trial. The discovery function is only ancillary to that purpose. The cross-examination is not relevant or material to the central purpose of the preliminary inquiry proceeding.
(c) The preliminary inquiry justice has no Charter jurisdiction to make a relevant ruling on the sufficiency of the preconditions for the warrant or the admissibility of the evidence obtained. There is no jurisdiction to review or engage in the editing or summarization of the ITO as contemplated in Garofoli.
(d) As for prolixity, every Dawson application must be repeated at trial as a Garofoli application. Whatever the anticipated length of the leave argument and, if granted, the cross-examination, it is doubled by the redundant Dawson application.
(e) The risk of identification of confidential informers is always present with cross-examination. Attempts to prevent such damage are notoriously fallible. Assuming the risk on two separate occasions is generally unacceptable when the only interest being served is that of discovery, particularly when the rewards are bound to be minimal if CI identity is properly shielded. In short, the proposed cross examination in aid of discovery is likely to be either dangerous to the CI or almost useless to the accused.
[11] Confidential Informant Principles
Concerning the request to cross-examine an Affiant with respect to a confidential informant, the following additional principles are important:
• There is no requirement to corroborate every aspect of a CI's tip, including the criminality alleged. Strengths in one area (information compelling, source credible, corroboration) may compensate for weakness in another. (R v. Reid, 2017 ONCA 430 at para 28 relying on R v. Debot, [1989] 2 SCR 1140 at p. 1168 para 66 and 70; R v. MacDonald, 2012 ONCA 244 at para 20.) It is reliability within the context of the information which is at issue on this review and not reliability at large. In other words, the three part test above will assist in assessing reliability within the confines of the exercise at hand, namely whether the pre-conditions for the issuance of the warrant are met.
• Information which tends to narrow the pool of individuals who could have provided the information infringes on confidential source privilege. (R v. Browne, 2014 ONSC 2563 at para 13)
• Informer privilege is an ancient and hallowed protection that plays an important role in law enforcement, recognizing the difficulties of drug investigations and the dangers to which informants are exposed. (R v. Leipert, [1997] 1 S.C.R. 281; R v. Scott, [1990] 3 S.C.R. 979 at 994)
• In the absence of a claim of innocence at stake, which cannot arise at a preliminary inquiry, informer privilege is immutable and cannot be waived by the Court. (Leipert, supra at para 28)
Analysis
[12] Informer Privilege Assertion
In submissions, the Crown highlighted that informer privilege is being asserted in this case and that the Applicant should not be permitted to ask any questions in relation to the informer. On the other hand, the Applicant argues that the questions being proposed would in no way tend to identify the CI and therefore are permissible. Counsel for the Applicant argues that the credibility and reliability of the informer will be key considerations at trial and that this line of inquiry goes to both issues.
[13-16] Paragraph 2.05 Analysis
Paragraph 2.05
a) How did the Affiant find that the confidential informer (CI) had no motive to fabricate information in relation to this investigation? Did he consider that the CI is financially motivated?
b) At what point did the CI get compensated? How desperate was the CI for money? Did this factor get taken into consideration when stating that the CI had no motive to fabricate?
c) Why was the CI not questioned about his knowledge of fentanyl?
Concerning paragraph 2.05, question a) seeks information about the belief of the absence of a motive to fabricate on the part of the CI. Anything more than generalities could tend to identify the CI. In addition, when looking at the tri-partite considerations of compelling information, credible source and corroboration, the Affiant makes clear that the information being provided is first-hand information of observations and conversations with the accused. Not only does this make the information compelling, but it also heightens any concerns of inadvertent disclosure of information tending to identify the CI. The questions will not be permitted.
Concerning questions b), some of the questions being proposed are quite personal to the CI and therefore could tend to identify him or her. Beyond that, the timing of compensation is irrelevant. Compensation in and of itself is not suspect and is quite common with CIs (see R v. Scott, supra). Also, it is possible to infer that given the wording that "no monies will be paid for false or misleading information", compensation is provided after the fact. No questions will be permitted.
With respect to paragraph c) the proposed question suggests a desire to know rather than a question that would go towards the existence of the pre-conditions for the warrant. The Affiant clearly set out the CI's knowledge in relation to different aspects of the drug-subculture and different types of substances. Whether specific questions were or were not asked in relation to the CI's personal experience with fentanyl is immaterial in my view and does not advance the current inquiry and could run afoul the obligation to safeguard the CI's identity. That the CI gave information about the accused and fentanyl is the real focus. The question will not be permitted.
[17] Paragraph 2.06 Analysis
Paragraph 2.06
a) Does the confidential informer have a criminal record for offences of dishonesty?
This is not a case where the CI's criminal record was excerpted or summarized for the issuing justice but rather it was attached in a confidential appendix. As such, this case is distinguishable from R v. So, unreported, Ottawa: (ONCJ June 13 2013) where the excerpting was viewed as selective and therefore with potential relevance to the existence of the pre-conditions. There can be no argument made that the issuing justice may have been misled here as she had access to all information contained in Confidential Appendix E1. Furthermore, disclosure of information that may or may not be contained in the criminal record could tend to identify the CI. The question will not be permitted.
[18-20] Paragraph 3.02 Analysis
Paragraph 3.02
a) Why did the Affiant omit the fact that the CI observed fentanyl in Mr. Glasner's bedroom in the initial ITO?
b) Conceded
c) Was any information gathered from the CI as to what the fentanyl looked like?
d) What was observed by the CI? What was hearsay?
e) Was anything done to try to corroborate the phone number given by the CI?
With respect to item a), this information was not completely absent from the original ITO. Indeed, paragraph 2.03 averts to the fact that the CI made first hand observations "and/or conversations with one or more of the persons being investigated and that the information was received first hand." In other words, the information was present in the first ITO. The information was simply made more evident for the issuing justice. The question will not be permitted.
With respect to items c) and d), these again go to specifics of the information which would narrow the pool of persons having the opportunity to observe thus putting the CI at risk of identification. The question will not be permitted.
As noted above, not every detail coming from a CI need be corroborated. The fact that it was not corroborated does not entitle the Applicant to ask why. It was not and this aspect remains open for the Applicant to challenge before the trial judge. Question e) will not be permitted.
[21] General Principles on Omissions and Disclosure
Many of the proposed questions that follow in the application concern the sufficiency of the information presented and whether more exists and whether avenues of inquiry were followed. The following principles are relevant to this review:
• As stated in R v. Alizadeh, 2014 ONSC at para 12-13:
The duty of full, frank and fair disclosure is intended to ensure that the issuing justice is presented with a clear and concise summary of the evidence. In virtually every case, it will be possible for counsel to argue that the Affiant ought to have included more details or more information. Ultimately in assessing an Affiant's candour, the Court must evaluate any argument that the Affiant ought to have included more detail in the affidavit by asking whether such an omission was material. Stated otherwise, would the justice have had reason to be concerned about issuing the warrant had he or she been made aware of these other facts? Alternatively, would the accumulation of individual errors or omissions have left the issuing justice with a skewed or inaccurate understanding of the information being placed before the Court? If either of these questions compels an affirmative answer then there would be grounds upon which a Court could find that cross-examination would be of assistance in determining whether the Affiant complied with the duty to make full, fair and frank disclosure for the purposes of the Garofoli hearing.
• Cross-examination may be permitted where there is a contradiction in the evidence adduced on the motion; where there is evidence contradicting the facts stated by the Affiant, or where the ITO itself discloses contradictions rendering the drafting suspect. (R v. Helmer, [2018] OJ No. 1063 (ONSC) at para 20)
• Where the submissions rely on suggested inconsistencies, omissions and conclusory statements, these matters standing alone may not show a basis for the view that cross-examination will elicit testimony tending to discredit the existence of one or more of the pre-conditions. (Helmer ibid at para 21)
[22] Paragraph 3.04 Analysis
Paragraph 3.04
a) Was any surveillance conducted in this investigation and not included in this ITO and if so, why was it left out of the ITO?
This is a discovery question. This is not a question based on evidence but a search for evidence. In any event, the Affiant need not detail every single observation made but rather is required to condense and select material information that furthers the request being made. The question will not be allowed.
[23-24] Paragraph 3.06 Analysis
Paragraph 3.06
a) Why did the Affiant omit the fact that 225 Lebreton is a multiunit dwelling?
b) Abandoned
c) How does the Affiant believe that the unknown male leaving with a clenched fist had just picked up fentanyl? Was any follow-up done in regards to the unknown male?
d) How does the Affiant believe that surveillance on July 13, 2017 helps to corroborate that Salim Glasner will use "Spencer's" place to deal drugs from?
With respect to issue a), the Applicant has filed a Google image of 225 Lebreton. It is clearly a multi-unit building. The surveillance documented in the ITO details comings and goings from the 225 Lebreton to support the conclusion that there is drug trafficking from that building. The surveillance reports note unit 101 being the unit of interest thus this was information squarely within the Affiant's knowledge. The significance of multiple persons coming and going from an address is lessened when the building in question is a multi-unit building, unless the information is specific to a unit. Here, the lack of specificity regarding the type of building may have been misleading and is relevant to the pre-condition. The question will be permitted.
With respect to questions c) and d), the statements at issue within the ITO are conclusory. These are self-evident without the need for further cross-examination. The Applicant will be able to make the submission that there is no basis for the Affiant's conclusion as to Fentanyl being clutched in the course of the trial. Given the absence of information supporting this conclusion, the issuing justice cannot have been misled by the information. The questions will not be permitted.
[25] Paragraph 3.08 Analysis
Paragraph 3.08
a) How does the Affiant believe that a confirmed drug transaction had taken place on July 17, 2017? Was any follow-up done in relation to the Hyundai Tucson?
The Applicant will be able to make the submission that there is no basis for the Affiant's conclusion in the course of the trial. The question will not be permitted.
[26] Paragraph 3.09 Analysis
Paragraph 3.09
a) How does the Affiant believe that two confirmed drug transactions took place at the residence of 475 Richardson Avenue on July 19, 2017? Was any follow-up done with the driver of the Dodge Ram (licence plate number AJ89012)? Was any follow-up done with Thomas McCarthy?
b) Was Glasner ever observed either entering or leaving 475 Richardson Avenue?
c) Does the Affiant have any reason to believe that Glasner was at 475 Richardson Avenue on July 19, 2017?
Matters b) and c) are discovery questions. They are not questions based on evidence but a search for evidence. The Applicant will be able to make the submission that there is no basis for the Affiant's conclusion in the course of the trial. The questions will not be permitted. With respect to question a) and the Affiant's belief, this is based on the observations detailed and inferences drawn in the course of the Affiant's experience as a drug investigator detailed in the introductory paragraphs. The Affiant is entitled to hold the belief set out. At most, the statement may go to facial validity. Without more, there is nothing to suggest that the issuing justice was misled or that the officer failed in his obligation of full and frank disclosure as the basis for his conclusions is set out above. The balance of the questions in paragraph a) are discovery questions. The questions will not be permitted.
[27] Paragraph 3.10 Analysis
Paragraph 3.10
a) Why did the Affiant omit the fact that Glasner was only seen arriving at 475 Richardson Avenue at 6:15 PM on July 25, 2017? Does the Affiant have any reason to believe that Glasner was at 475 Richardson Avenue before 6:15 on that date?
b) How does the Affiant believe that three confirmed drug transactions took place at the residence of 475 Richardson Avenue on July 25, 2017?
c) Why is Steven Nelson believed to be a drug user? Where does this information come from?
The conclusion drawn by the Affiant with respect to July 25th was that three drug transactions took place. The Affiant did not include that the Applicant was only seen arriving at the residence as of 6:15. Here, the absence of this information lends itself to the inference that the Applicant was present at the time of the transactions. The lack of information regarding the Applicant's time of arrival and equally available inference as to his absence from the residence at the time of the transactions may have been misleading to the issuing justice and is relevant to the pre-conditions. Question a) will be permitted.
[28-29] Paragraph 3.10 Continued
Concerning questions b), the Affiant's belief is based on the observations detailed and inferences drawn in the course of the Affiant's experience as a drug investigator detailed in the introductory paragraphs. The Affiant is entitled to hold the belief set out. Any argument in relation to the conclusions reached will be available to application in the course of the trial. The question will not be permitted.
Steven Nelson's status as a drug user is not sourced. That he is a drug user lends support to the theory that he attended the residence to purchase drugs such that drug trafficking was taking place at the residence. The omission of information is material and may go to the pre-conditions. The questions in relation to Steven Nelson will be permitted.
[30-31] Paragraph 3.11 Analysis
Paragraph 3.11
a) How does the Affiant believe that Glasner conducted a hand to hand transaction on August 18, 2017? Was any follow-up done with the male referred to at 2:25 PM? Was any follow-up done in relation to the gold Cadillac? Was any follow-up done in relation to the person who went into the stairwell?
b) Abandoned
c) Who observed the male leaving and trying to inject the product?
With respect to the questions at a), this is a conclusion that the Affiant has drawn based on the information detailed and his experience. He is entitled to come to this conclusion. With respect to the balance of the questions at paragraph a) these are discovery questions and will not be permitted. Any arguments on the shortcomings of the investigation may be made on the face of the ITO.
Concerning question c), the Affiant states that staff spoke with Detective Renwick and gave him information about a male with a syringe being moved along out of 2249 Carling Avenue. The impression left with this paragraph is that there was direct contact with a person who spoke with a male with a syringe. The surveillance reports in relation to that date detail the observation made by Detective Renwick, but do not mention a conversation. There appears to be a contradiction as between the report and the ITO. This may have been misleading to the issuing justice in terms of the quality of the information received. The question will be permitted.
[32-34] Paragraph 3.12 Analysis
Paragraph 3.12
a) Was anyone else listed as residing at 475 Richardson Avenue in the RMS query? If so why was this not mentioned in the ITO?
b) Why was the RMS query not included as a source debrief?
With respect to question a), this is a discovery question. The belief that the Applicant was a resident at 475 Richardson Avenue was the information obtained and corroborated through RMS. The possibility of other residents is neither here nor there in the current exercise. The questions will not be permitted.
With respect to question b), the information was sourced and provided to the issuing justice. Nothing more is required. This question will not be permitted.
[35] Paragraph 3.13 Analysis
Paragraph 3.13
a) Abandoned
b) Why was the new warrant ITO not brought back to JP Baum?
c) What time was a warrant brought to Justice Alder?
d) Was the initial warrant provided to Justice Alder?
e) Abandoned
f) What steps were taken by the Affiant to further corroborate the CI's statements after the first warrant was denied?
With respect to questions b)-d), there is a connotation of judge shopping. To begin with, there is no obligation to bring a warrant back to the same issuing justice. There is no negative inference to be drawn unless of course the fact of the refusal and basis were not highlighted for the issuing justice as in R v. Bui, 2014 ONSC 8. Here, the information for the refusal was included in the second ITO at paragraph 3.13, including what information was added in order to overcome the identified shortcomings. Furthermore, additional information was provided by the Affiant detailing what the issuing justice was given with the updated warrant and notice of refusal. Whether the original warrant was given to Justice Alder is therefore immaterial. Accordingly, there having been full and frank disclosure of the refusal and the reasons therefore, there is no basis for the connotation of misconduct or judge shopping. The questions will not be permitted.
Concerning paragraph f), the Affiant did not suggest that he further corroborated information from the CI. Rather, what is obvious is that the Affiant made plain certain available inferences based on the introductory paragraphs about the CI. Any shortcomings as to corroboration will be available for argument before the trial judge. The question serves no purpose but discovery, an impermissible purpose.
[37] Paragraphs 4.01, 4.02, 5.01 and 6.01 Analysis
Paragraphs 4.01; 4.02; 5.01 and 6.01
All of the above paragraphs challenge the Affiant's conclusions or beliefs. The basis for the officer's beliefs are set out in the ITO. As to the officer's experience, it is found in the introductory paragraphs. The officer is permitted to draw certain inferences and make deductions based on his experience. Indeed, this is not specific to the search warrant process but runs throughout a police officer's duties. Where there is a component of reasonableness, it is to be assessed on both a subjective and objective basis. The objective basis is one "as seen from the perspective of a reasonable person standing in the shoes of a police officer with comparable experience to that of the arresting officer." (R v. Anang, [2016] OJ No. 5789 at para 14.) The existence or not of a non-criminal explanation for the activities alleged and whether it was considered by the officer does not advance the inquiry as to the pre-conditions for the issuance of the warrant and whether the Affiant ought to explain himself. Rather, argument can be made at trial in this regard. The questions will not be permitted.
Ruling
[38] Permitted Cross-Examination
The Applicant will be allowed to cross-examine the Affiant in the following areas:
- Para 3.02 b)
- Para 3.06 a)
- Para 3.10 a) and c)
- Para 3.11 c)
[39] Dismissal of Balance
The balance of the application is dismissed.
Released: June 14, 2018
Signed: Justice Jacqueline V. Loignon