Court Information

Ontario Court of Justice

Date: August 7, 2020

Court File No.: Brampton 19-10750

Between:

Her Majesty the Queen

— and —

Shawn Downey-Smith

Before: Justice M.M. Rahman

Heard: July 28, 2020

Written reasons for ruling released on: August 7, 2020

Counsel

R. Alexander Cornelius — counsel for the respondent

Elizabeth Bristow — counsel for the applicant

Decision

RAHMAN J.:

1. Introduction

[1] The applicant, Shawn Downey-Smith, is charged with a number of firearm-related offences. Most of the charges relate to a firearm seized from a home by Peel Regional Police during the execution of a search warrant. The applicant challenges the validity of the warrant. As part of that challenge, the applicant seeks leave to cross-examine the affiant of the information to obtain (ITO) the warrant.

[2] The ITO in this case is heavily redacted. The Crown had provided a summary of the redacted information to the defence in advance of the trial. On July 24, 2020, the court conducted an in camera, ex parte hearing by videoconference with Crown counsel to review the Crown's editing of the ITO. As a result of that process, some of the redacted material was either revealed verbatim or re-summarized to provide more information about the nature of the redacted material. The new judicial summary was then provided to applicant's counsel and the court.

[3] Applicant's counsel, Ms Bristow, has outlined five areas of cross-examination that she wishes to pursue. Ms Bristow does not rely on any extrinsic evidence to support her application to cross-examine the affiant, with the exception of the affiant's heavily-redacted notes.

[4] The Crown opposes the application for leave to cross-examine principally on the grounds that the applicant has not established a basis that cross-examination would likely undermine any of the pre-conditions for issuing the warrant. Crown counsel, Mr. Cornelius, argues that the applicant is really seeking to explore various areas in hopes of getting helpful evidence. He says that the applicant has not pointed to any evidence, or otherwise shown, that there is a reasonable likelihood that the proposed cross-examination will undermine any of the pre-conditions for the issuance of the warrant.

2. The Test for Granting Leave to Cross-examine

[5] The threshold for granting leave to cross-examine is not onerous. The application need only establish some basis that cross-examination could undermine one of the pre-conditions for issuance of the warrant.[^2] It is not necessary for the defence to establish that cross-examination will be successful in undermining one of the statutory pre-conditions.[^3] The defence need only establish "a reasonable likelihood that the proposed cross-examination will assist in determining whether the necessary grounds existed for the issuance of the search warrant." The focus of the inquiry is on the reasonableness and honesty of the affiant's belief and not on whether the information the affiant relied on is accurate.[^4] Cross-examination may undermine the grounds for the warrant by contradicting information that is in the ITO, or by adding information that was left out.[^5] However, cross-examination "that can do no more than show that some of the information relied on by the affiant is false" will not likely be helpful unless the proposed cross-examination can also support the inference that the affiant knew or ought to have known it was false.[^6]

[6] Granting leave is a discretionary decision requiring a court to take into account factors such as the need to protect informer privilege, and the court's obligation to make effective use of its resources by avoiding unnecessary proceedings.[^7] Cross-examination will generally not be granted where the particular area of cross-examination will do nothing more than underscore an attack on facial validity that can be addressed by making submissions about the ITO's facial deficiencies.[^8] That is not to say that facial insufficiency is irrelevant in deciding whether a court should order cross-examination. There are circumstances where facial insufficiency may serve as a basis for cross-examination.[^9] As Hill J. observed in R. v. Pham, an accused seeking to cross-examine an affiant may use facially insufficient aspects of an affidavit where the facial deficiency "itself establishes a reasonable likelihood that the affiant has withheld source facts, or advanced bald conclusory inferences or apparently illogical factual assertions."[^10]

3. The Proposed Areas of Cross-examination

[7] I will deal, in turn, with each of the five areas that the applicant seeks leave to cross-examine.

3.1. The overall credibility of the confidential informer

[8] Ms Bristow says that the lack of any heading titled "credibility of the informer" is concerning. She argues that there is no information about whether the confidential informer (CI) was under arrest when he or she provided information, or was under any other such pressure. She also argues that it is unclear whether the affiant stated whether the CI is involved in the criminal subculture, and that the affiant does not address whether he made any inquiries whether the CI had any animus against her client. Ms Bristow says that this area of cross-examination can be conducted without disclosing any information that would tend to identify the CI. Relying on Forestell J.'s decision in R. v. Debartolo,[^11] Ms Bristow proposes that she be permitted to ask whether the affiant made attempts to obtain complete and detailed information about the CI, including whether the CI had any animus, and whether the CI was involved in ongoing criminal activity.

[9] Mr. Cornelius resists cross-examination on two main grounds. First, he repeats his overarching submission that the defence has offered no basis to support the position that cross-examination will tend to undermine any pre-condition. He says that the defence simply wants to explore this area hoping to uncover helpful information, rather than being able to point to anything specific that would demonstrate a reasonable likelihood that one of the pre-conditions for issuance will be undermined. Second, Mr. Cornelius cautions that any cross-examination in this area will risk exposing privileged information because much of what the defence wants to explore is about the CI. Asking questions that go to the CI's very background may narrow the pool and provide information that could reveal his or her identity.

[10] I have decided against granting leave to cross-examine the affiant on this area. I agree with the Crown's submission that the applicant has not provided any basis to support a reasonable likelihood that cross-examination would tend to undermine any pre-conditions for the issuance of the warrant. Rather, the applicant's focus in this area is directed at exploring what the affiant did or did not do in hopes of uncovering something helpful. I also would not permit cross-examination because any cross-examination in this area, however limited, could easily reveal information that might breach informer privilege. This is not a case where the affiant has clearly omitted relevant information, such as the CI's motivation or background. Questions about what precise inquiries were made about the CI's background could serve to narrow the pool based on what information is already in the ITO.

3.2. Reliability of the CI's past information

[11] Ms Bristow argues that, while the ITO contains information about the CI having provided information in the past, there is no indication that anyone was convicted as a result of the information. More importantly, the ITO does not reflect whether the CI's information actually proved to be true, or whether the CI's information ever rendered negative results or proved to be inaccurate or false. Ms Bristow says that she does not wish to ask about the details of past results, because she recognizes that could breach informer privilege. However, she says that being able to ask whether the police did any kind of investigation or made inquiries about the information could detract from its reliability. Ms Bristow says that such cross-examination would reveal whether the affiant was diligent in his presentation of the CI's past assistance and, if the affiant did not make any such inquiries, whether the affiant was wilfully blind. Ms Bristow says that, in this case, the affiant's notes are very brief about the investigation that he did and that it may show that the affiant was not full, fair and frank in what he did or did not depose in the ITO.

[12] Mr. Cornelius again opposes cross-examination because it may reveal information which could identify the CI because it could serve to narrow the pool of people who could have informed. He also says that this is a submission that the defence can make based on the face of the ITO. To the extent that the affiant's information is unclear or not specific enough, Ms Bristow can attack the warrant without cross-examining the affiant.

[13] I would grant limited cross-examination in this area. The ITO has a very general statement about the CI's past information. As the judicial summary outlines, the ITO simply asserts that the information was used to obtain a certain number of search warrants and that those search warrants led to the seizure of contraband. This very general statement does not say whether the information actually proved to be accurate or whether it proved to be inaccurate in some way but nonetheless allowed for a search warrant to be obtained and contraband seized. I also note that the affiant asserts that the CI's past information "has proven to be very accurate and has been corroborated by police investigation."[^12] Nonetheless, the affiant only uses a very general statement to detail the extent of the corroboration and verification. That general statement does not actually say that the information was corroborated or verified, just that it was used.

[14] Moreover, since the affiant's notes seem to reflect a relatively brief investigation of the CI's background performance, it may support an inference that he was unclear about what type of information he ought to have included to demonstrate the CI's reliability, and to support his assertion that the CI's information as having proven to be accurate. That apparent lack of inquiry combined with the very general statement about the past use of the CI's information, supports the inference that the affiant may not have understood what kinds of inquiries he ought to have made about the CI's reliability before asserting that the CI's past information "has proven to be very accurate." This is a situation where one would have expected the affiant to make those inquiries or at least include that information if it was available to him, especially if he was going to depose that the "information provided by the source has proven to be very accurate." There is nothing suggesting he made those inquiries given the very general statement about the use of the CI's past information. If he did make those inquiries and did not include them, it would suggest that he did not see the need to make full disclosure of those results.[^13] If he did not make those inquiries, or have that information, it may suggest that the general statement that he did make could be misleading.

[15] I am mindful that specific information about what search warrants were obtained, and what was seized, may reveal information that might narrow the pool. In my view, any concern that cross-examination in this area might reveal too much information about the CI can be dealt with by carefully circumscribing the types of questions that the applicant may ask. The applicant will be permitted to ask what specific inquiries the affiant made regarding the CI's past information, and whether that the specific information had actually been verified, or whether it was inaccurate in some way. The applicant is also entitled to ask what the affiant's source(s) of information were (that is whether he spoke with the CI's handler and/or reviewed reports). The applicant may not ask any questions that would reveal the number of times that the CI provided information, or what specifically was seized as a result of the information that was provided. Nor may the applicant ask any questions that might reveal the police force with whom the CI is a registered informer. The affiant's answers will very likely be quite general, but they will at least reveal whether his concern was to ensure that the CI's information was verified or "prove[d] to be very accurate" as opposed to simply being used to obtain what turned out to be successful warrants.

3.3. The affiant's experience

[16] Ms Bristow argues that she should be permitted to cross-examine the affiant on his police experience (including his experience writing ITOs) and the evidentiary basis for his assertion that people keep firearms for a long time, especially if firearms are well-maintained. She characterizes this statement by the affiant as inflammatory and says that the affiant does not explain the source of his information.

[17] Mr. Cornelius says that there is nothing inflammatory about the statement and that it amounts to nothing more than a common sense proposition. No particular expertise would be required to make this assertion.

[18] I am not satisfied that cross-examination about the affiant's experience or basis for this assertion should be permitted. Ms Bristow has not pointed to anything that would undermine the truth of this statement. I also agree with Mr. Cornelius that the statement is somewhat common sense. It would be fair to infer that an illegal firearm (unlike a fast-selling commodity like cocaine) would be something that a person would keep for an extended period of time.

3.4. Showing the CI a single photo to identify the applicant

[19] Ms Bristow argues that showing the CI a single photo to identify her client was an inherently unreliable identification process. She says it is especially unreliable here because the CI identified her client by an alias. Ms Bristow also wants to cross-examine the affiant about whether he was aware of frailties of this kind of identification and if so why he used it. Relying on the Court of Appeal's decision in R. v. Adler,[^14] Ms Bristow argues that a constitutional challenge to police conduct should permit questioning about what the police believed the law to be. She also says that this cross-examination goes beyond a mere facial defect because she would be able to ask the affiant what he may have said to the CI when the applicant's photograph was shown. If the affiant used a suggestive phrase such as "is this the guy" it may undermine the reliability of the identification.

[20] Mr. Cornelius opposes cross-examination on this area because the identification process was apparent to the issuing justice. Cross-examination of the affiant will not add anything. The defence is free to attack the use of the single photo in submissions. Further, Mr. Cornelius also notes that the identification process here was used to obtain a search warrant. This is not an identification process that the police or Crown are relying on to prove an accused's identity at trial. Therefore, the police's failure to adhere to a more rigorous identification process required at a trial would not undermine any preconditions to the issuance of a warrant.

[21] I agree with Mr. Cornelius that cross-examination is not necessary in this area because the defence is able to make submissions on the presence or absence of the procedure used to identify the applicant. The defence is aware that a single photo was used here. While the defence may not be aware of any instructions given, it is apparent that the police did not show the CI more than one photo. The defence is able to make submissions on whether the process used here was proper in the circumstances. Further, I find that the defence's reliance on Adler is misplaced. In Adler, the Court of Appeal held that the trial judge ought to have permitted the defence to ask questions about a police witness' knowledge of the law, because such questions would be relevant to the seriousness of any Charter breach. However, the Court of Appeal's comments were not made in the context of an application to cross-examine a police witness, but rather the propriety of questions directed at a police witness who was already on the witness stand. In that case, both parties agreed that evidence was required on the voir dire.[^15] Consequently, there was no contested application for leave to cross-examine the affiant, and ostensibly no limits on the areas on which the police witnesses could be cross-examined.

3.5. The Second Address

[22] Ms Bristow argues that she should be permitted to cross-examine the affiant about an address that appears in his notes in addition to the address where the search warrant was executed. She says that she should be permitted to cross-examine the affiant about why no information about this second address was mentioned in the ITO. She also asks to cross-examine the affiant about what the affiant did to confirm that the address was not relevant.

[23] Mr. Cornelius says that if an ITO otherwise outlines a basis to believe the items will be found in a certain place, the police are not obliged to list other addresses that a target is associated with. He also opposes cross-examination in this area because he says that it would also tend to narrow the pool of potential informers, and therefore might breach the informer privilege.

[24] I would not grant leave to cross-examine in this area. I am not satisfied that there is a reasonable likelihood that cross-examination would assist in undermining the pre-conditions for issuance of the warrant. The mere reference to a second address in the affiant's notes, without more, does not support a basis for cross-examination. Also, as the Crown observes, other information that is in the ITO meant that the police's failure to investigate the second address in this case was not consequential. I also agree with the Crown that cross-examination about this area could reveal information that would identify the CI.

4. Conclusion

[25] The application to cross-examine the affiant is allowed in part to permit the application to cross-examine the affiant regarding the extent to which he attempted to obtain information about the CI's provision of past information. The application to cross-examine on the other four areas described above is dismissed.

Released: August 7, 2020

Justice M.M. Rahman

Footnotes

[^1]: On August 6, 2020, I gave brief oral reasons on this application so the parties would understand why the application had been allowed in part. I explained that my full written reasons would be released shortly. These are those reasons.

[^2]: R. v. Pires; R. v. Lising, 2005 SCC 6 at paras. 42-44.

[^3]: Lising, supra, para. 40.

[^4]: Lising, supra at para. 41.

[^5]: R. v. Green, 2015 ONCA 579 at para. 35.

[^6]: Lising, supra at para. 41.

[^7]: Green, supra at paras. 31 and 52.

[^8]: R. v. Riley at para. 11.

[^9]: Lising, supra, at para. 44; R. v. Pham.

[^10]: Pham, supra, at para. 33.

[^11]: R. v. Debartolo, 2018 ONSC 916.

[^12]: This language is taken verbatim from the judicial summary.

[^13]: Even though the results may have been helpful to the warrant application.

[^14]: R. v. Adler, 2020 ONCA 246.

[^15]: Adler, supra, at para. 27.