Court Information

Ontario Court of Justice

Date: February 18, 2020

Court File No.: Hamilton 18-2631

Parties

Between:

Her Majesty the Queen

— And —

Douglas Burley

Before the Court

Justice: J.P.P. Fiorucci

Heard: January 23, 2020

Ruling Released: February 18, 2020

Counsel

For the Crown (Federal Prosecutor): T. Mimnagh

For the Accused Douglas Burley: J. Alsbergas and J. Read

Ruling on Application for Leave to Cross-Examine the Affiant on the ITO

FIORUCCI J.:

Introduction

[1] On March 21, 2018, a Justice granted a section 11 Controlled Drugs and Substances Act search warrant authorizing the police to search the residence at 186 Glassco Avenue North, in the City of Hamilton (the "Residence"). Detective Constable A. Knickle of the Hamilton Police Service was the affiant of the Information to Obtain ("ITO") the search warrant for the Residence.

[2] The police executed the search warrant at the Residence, which resulted in Douglas Burley being charged with three counts of Possession of a Controlled Substance for the Purpose of Trafficking and one count of Possession of Canadian currency not exceeding $5,000.00 knowing that all or part of the currency was obtained or derived, directly or indirectly, by commission of a crime in Canada.

[3] Mr. Burley has challenged the issuance of the warrant that permitted the search of the Residence. His section 8 Charter application asserts that there was insufficient credible and reliable evidence upon which the issuing Justice could have granted the warrant. Mr. Burley seeks exclusion of the evidence seized at the Residence.

[4] Mr. Burley filed a notice of application seeking leave to cross-examine the affiant of the ITO. Mr. Burley's counsel and Crown counsel made submissions with respect to the application for leave to cross-examine. The only evidence on the leave application was the redacted ITO and the notebook notes of Det. Cst. Knickle relating to surveillance that he conducted at the Residence on March 8, 2018 and March 20, 2018. The redacted information in the ITO relates primarily to information received from a confidential informant (CI), and from two Crime Stoppers tips.

[5] The Crown has given notice of its intention to proceed to "Step Six" of Garofoli to have me consider the redacted portions in the ITO to support the authorization, if I find that the redacted ITO is insufficient to support the search warrant. However, at this point in the proceedings, both the Crown and Mr. Burley made submissions on the application for leave to cross-examine based solely on the redacted ITO. This is my ruling relating to Mr. Burley's application for leave to cross-examine the affiant on certain subjects and paragraphs in the redacted ITO.

The Test for Leave to Cross-Examine the Affiant

[6] A judicial authorization to search a place complies with section 8 of the Charter if, prior to conducting the search, the police establish upon oath, reasonable and probable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the search. The search warrant is presumptively valid. The question for the reviewing Court is not whether it would have issued the warrant, but whether there was sufficient credible and reliable evidence to permit the issuing Justice to authorize the warrant. The test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could have issued.

[7] "Reasonable and probable grounds" means a "credibly based probability" and does not mean "proof beyond a reasonable doubt" or even the establishment of a prima facie case. An accused bears the burden of demonstrating that the ITO is insufficient by showing that the minimum standard required for authorizing the search was not established in the ITO.

[8] An accused must obtain leave to cross-examine the affiant of the ITO. The test for granting leave to cross-examine an affiant was explained by the Supreme Court of Canada in R. v. Garofoli:

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 establish that there was no basis upon which the authorization could have been granted.

[9] In World Bank Group v. Wallace, the Supreme Court of Canada described the three justifications for limiting cross-examination of the affiant:

In Pires, this Court upheld the constitutionality of the requirement that leave be sought to cross-examine the affiant, as well as the applicable threshold. The Court did so for three reasons. First, only a limited range of questioning will be relevant to the test on a Garofoli application (Pires, at paras. 40-41). The threshold primarily ensures that the cross-examination will be relevant (paras. 3 and 31). Second, cross-examination creates a risk of inadvertently identifying confidential informants (para. 36). Third, cross-examination can create waste and unnecessary delays. The threshold is "nothing more than a means of ensuring that ... the proceedings remain focussed and on track" (para. 31).

[10] In R. v. Pires; R. v. Lising, the Supreme Court of Canada set out the threshold for granting leave to cross-examine:

As discussed earlier, 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. 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. Hence, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focussed on the question to be determined on a Garofoli review -- whether there is a basis upon which the authorizing judge could grant the order. If the proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted. However, 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. Such a strict standard was rejected in Garofoli. A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown.

[11] In Pires and Lising, the Supreme Court of Canada set out areas of cross-examination that may be relevant to an accused's challenge to the issuance of a search warrant or wiretap authorization, and the threshold for permitting cross-examination in those areas.

[12] For instance, the Court said the following about cross-examination directed at the credibility or reliability of an informant:

In some cases, the proposed cross-examination may be directed at the credibility or reliability of an informant. However, cross-examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false. We must not lose sight of the fact that the wiretap authorization is an investigatory tool. At that stage, a reasonable belief in the existence of the requisite statutory grounds will suffice for the granting of an authorization. Upon further investigation, the grounds relied upon in support of the authorization may prove to be false. That fact does not retroactively invalidate what was an otherwise valid authorization.

The fact situation in Garofoli itself provides a good example of a situation where the proposed cross-examination was directed not only at the lack of credibility of the informant but at the affiant's likely awareness of that fact. The informant alleged that he had been approached by Garofoli and another individual in Hamilton with an offer to supply him with two kilograms of cocaine. In his affidavit, Garofoli stated that he lived in Florida at the relevant time. He further stated that the officer in charge of the case was well aware that he was living in Florida and that he only travelled back to Hamilton in connection with his court appearances. Furthermore, information from the informant person was critical to establishing the requisite reasonable grounds. Sopinka J., for the majority, found that the appellant had shown a basis for the cross-examination:

In my opinion, the appellant has shown a basis for the cross-examination here. In view of the degree of reliance by the police on the informant in this case, if the informant is discredited then the factual basis for the authorization is undermined. If it is shown that the informant lied, then it could raise the inference that the police knew or ought to have known that he lied. If the police were not warranted in their belief that the information was true, then the basis for belief that a crime was to be committed disappears. Accordingly, the appellant should have been permitted to cross-examine. Cross-examination having been denied, there must be a new trial [emphasis added].

[13] The Court in Pires and Lising held that leave to cross-examine may be granted in situations where the affiant's own credibility becomes material to establish the statutory preconditions for the issuance of the warrant. The Court cited the case of R. v. Lachance as an example.

[14] In Lachance, the affiant swore an affidavit to obtain a wiretap authorization to intercept private communications. The affidavit contained information from an informant. The affiant stated his belief in the affidavit that the only practical investigative technique would be to intercept the private communications of the targets. However, through evidence led at the trial, it could be inferred that the informant was working as a state agent. The affiant failed to disclose in the affidavit that the police in fact had this undercover informant who was acting as a state agent. Sopinka J. stated:

I am of the opinion that the Court of Appeal erred in refusing to permit cross-examination of Sergeant Lamont. The appellant had established a basis for cross-examination. From the evidence at trial it can be inferred that Hollett is the informant referred to in the affidavit. The affidavit of Sergeant Lamont treats the informant and Hollett as two different people. This is misleading on a matter which relates to the basis of the decision of the authorizing judge. It bears directly on the issue as to whether the only practical investigative technique available is to intercept the private communications of the subjects [emphasis added].

[15] While there was evidence to suggest that continued use of the undercover state agent in Lachance was difficult because he had been avoiding the targets, the Court stated that it did not know what the affiant's belief was in this regard. As the Court noted, "[c]ross-examination may very well have revealed that [the undercover state agent] could still perform that role". If cross-examination of the affiant impeached his statement in the affidavit as to the use of other investigative techniques, there would be no basis for granting the authorization, since section 178.13(1)(b) required that the authorizing judge be satisfied that "other investigative procedures are unlikely to succeed".

[16] In Pires and Lising, the Court noted that "[t]he insufficiency of the affidavit, on its face, may suffice to show a basis for cross-examination". The Court cited the case of R. v. Williams, a wiretap case, as an example. In Williams, "the statements in the affidavit concerning the utility of undercover operations were conclusory only and arguably understated the progress of the investigation". There was evidence to suggest that the "strict statutory requirement of showing investigative necessity" had not been met. Therefore, in Williams, the Ontario Court of Appeal held that "the appellant showed a basis for the view that the cross-examination would elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization, namely the investigative necessity requirement".

[17] In R. v. Green, the Ontario Court of Appeal succinctly stated that, on the motion for leave to cross-examine the ITO affiant, "[t]he focus is on the reasonableness and honesty of the affiant's belief as to the existence of the requisite grounds, and not on the ultimate accuracy of the information relied on by the affiant". Doherty J.A. noted that, "the honesty and/or reasonableness of the affiant's grounds for believing that the warrant should issue are the ultimate target of the cross-examination". Cross-examination should generally be allowed "if there is a reasonable basis to believe that an affiant has deliberately attempted to mislead the authorizing judge in some part of the ITO".

[18] There must be an evidentiary foundation to support an application for leave to cross-examine an ITO affiant. This evidentiary foundation can be established in many ways. For instance, the applicant may file his or her own affidavit or that of a third party. There can be viva voce evidence led on the application, or the applicant may be able to point to material from the disclosure provided to establish a basis for cross-examination. The ITO itself may provide a basis for cross-examination of the affiant.

[19] As Lacelle J. stated in R. v. Helmer, "[t]he point is simply that a factual foundation of some kind will be necessary to show a reasonable likelihood that cross-examination will produce evidence that will assist the court to determine whether the necessary grounds existed for the issuance of the search warrant".

[20] Cross-examination will only tend to discredit the existence of a pre-condition to the issuance of a warrant if it can show that the affiant knew or ought to have known that the information contained in the ITO was false. As the Ontario Court of Appeal recently stated in R. v. Victoria, "[c]omplaints about an affiant's inferences, like claims of omissions, inconsistencies or conclusory or inaccurate statements afford no basis for cross-examination".

[21] In R. v. Sadikov, the Ontario Court of Appeal noted that "refusal of leave to cross-examine the affiant does not foreclose a challenge to the sub-facial validity of the warrant". The Court went on to state:

Refusal of leave to cross-examine the affiant precludes the availability of evidence that might be elicited on cross-examination as a source of evidence to impeach the reliability of the information contained in the ITO. However, refusal of leave to cross-examine the affiant does not deprive the applicant of the right to advance a sub-facial challenge to attack the reliability of the ITO, only of the use of evidence that might have been elicited in cross-examination of the affiant to do so.

Analysis

[22] Mr. Burley sought leave to cross-examine the affiant on a variety of subjects. Counsel referenced groups of paragraphs when making submissions with respect to the proposed areas of cross-examination. I will use the same groupings of paragraphs in my ruling.

Paragraphs 1 and 2 of the ITO

[23] These paragraphs relate specifically to the CI. The CI is referred to as Source A in the ITO. These paragraphs contain redactions to protect the identity of the CI. What remains in the redacted ITO does not permit the reader to determine whether the affiant disclosed to the issuing Justice such things as the CI's criminal record, if any, or the CI's motivation for providing information to the police.

[24] The redacted ITO merely describes the CI as a Confidential Human Source, who is a numbered informant with the Hamilton Police Service. The redacted ITO also states that the CI has provided information in the past, but this is the first time Det. Cst. Knickle received information from the CI.

[25] Mr. Burley seeks leave to cross-examine the affiant about various alleged deficiencies in the redacted ITO, specifically relating to the CI. Counsel for Mr. Burley contends that the information in the redacted ITO pertaining to the CI is misleading, which calls into question the credibility and reliability of the affiant.

[26] Mr. Burley seeks leave to cross-examine the affiant about the CI's criminal record, the CI's past reliability or unreliability, and whether the affiant provided the issuing Justice with information about the CI's past reliability, or unreliability. If the affiant did not provide the issuing Justice with information about the CI's reliability, Mr. Burley wants to know the reason why this information was withheld. Mr. Burley also seeks permission to ask the affiant whether the CI provided first-hand or second-hand information, and what motivated the CI to provide information to the police about Mr. Burley.

[27] Mr. Burley suggests that the affiant's failure to provide the issuing Justice with these details about the CI was misleading and calls into question the credibility of the affiant himself. Mr. Burley also complains that the affiant described the CI as "a numbered informant" in the ITO, which on its face may have given the issuing Justice the impression that the CI was reliable. Therefore, Mr. Burley also wants to ask the affiant what "numbered informant" means, and why the affiant did not explain its meaning in the ITO.

[28] I deny Mr. Burley's application for leave to cross-examine on the above subjects. I find that cross-examination of the affiant on the CI's criminal record, the CI's motivation for providing information, and whether the CI provided first-hand or second-hand information should not be permitted in order to protect the CI's identity. These areas of questioning may evoke information that serves to eliminate some members of the pool, or to identify the informer. I deny Mr. Burley's request to question the affiant regarding the CI's past reliability or unreliability, as cross-examination in this area also risks eliciting information that could narrow the pool or identify the CI.

[29] Furthermore, Mr. Burley's request to cross-examine on these subjects is based partly on the dearth of information in the redacted ITO to support the CI's credibility. This is not a proper basis to permit cross-examination. Any alleged deficiencies in the sufficiency of the grounds for the issuance of the search warrant can be argued on the Garofoli application.

[30] I also reject Mr. Burley's argument that cross-examination in this area is necessary to determine how misleading the affiant was in his drafting of the ITO, which Mr. Burley says is relevant to section 24(2) of the Charter. I am not satisfied that there is a basis to cross-examine the affiant on matters relevant to the validity of the warrant. Section 24(2) issues do not provide a gateway to cross-examination of the affiant where the accused does not show any basis upon which to cross-examine on issues related to the validity of the warrant.

[31] I deny Mr. Burley's request for leave to cross-examine the affiant on the meaning of "numbered informant", and the reason why the affiant did not explain its meaning in the ITO. There is no evidence to support Mr. Burley's claim that the affiant described the CI as "a numbered informant" to cloak him or her with an unwarranted aura of credibility. On the evidentiary record before me, the affiant received information from a confidential human source registered with the Hamilton Police Service and embarked on an investigation as a result of receiving that information.

[32] Mr. Burley's counsel made much of the fact that cross-examination on this subject, and on the CI's motivation, is crucial to determining whether the CI was, in fact, a state agent. Firstly, questioning in this area poses the same risk of disclosing the CI's identity. Furthermore, there is no evidentiary foundation for a claim that the affiant described the CI as a confidential human source when he knew or ought to have known that the CI was a state agent. Questioning in this area would do nothing to 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.

Paragraphs 3, 4, 5 and 6 of the ITO

[33] These paragraphs of the ITO contain information received from two Crime Stoppers tips. Source B provided information to Crime Stoppers sometime in June of 2016 and Source C provided information to Crime Stoppers sometime in October of 2017. These paragraphs contain certain redactions.

[34] Mr. Burley seeks leave to question the affiant on the following subjects:

1. What did he know about Crime Stoppers tips generally?
2. Did he do anything to investigate whether Source B and Source C were the same person?
3. Did he know how to find out whether they were the same person?
4. If he knew there was a way to determine whether Source B and Source C were the same person, why did he not include that in the ITO?

[35] On the evidentiary record before me, there is no basis to grant leave to cross-examine on these subjects. In the ITO, the affiant provides information about Hamilton Crime Stoppers. He states that it is an incorporated agency that operates independently of the Hamilton Police Service. He states that each Crime Stoppers report is given an individual report number. He states that the person providing the information is advised of that report number. He states that any subsequent updated information provided by the same tipster, that relates to the same incident is added to the original report, which prevents the tipster from providing duplicate information with respect to the same tip.

[36] Mr. Burley has adduced no evidence on this application to establish that the affiant knew or ought to have known that Source B and Source C were the same person, and that he failed to disclose that fact in order to mislead the issuing Justice. The record discloses that the affiant relied on the information provided in the two Crime Stoppers tips, and the CI information, to embark on an investigation.

Paragraphs 12 and 13 of the ITO

[37] In these paragraphs of the ITO, the affiant sets out observations he made of the Residence when he conducted surveillance there on March 8, 2018. He describes how he observed a male who had "the appearance of a drug user" arrive at the home at 11:20 a.m., and how Mr. Burley walked from the Residence and entered the passenger side front door of this male's vehicle. The vehicle then drove away, only to return a short time later at 11:45 a.m. At that time, Mr. Burley got out of the vehicle and entered the Residence. The affiant states that Mr. Burley was not carrying any items, such as bags or beverages. Based on his observations, the affiant states in the ITO that he believes the male picked Mr. Burley up and drove him to meet another party for a drug transaction.

[38] Mr. Burley says that he should be permitted to cross-examine the affiant about what it means for someone to have "the appearance of a drug user", and what it was about this male that made him have the "appearance of a drug user". Mr. Burley wants to question the affiant about the location from which he was making his observations, and any potential obstructions. He also seeks to question the affiant about his belief that the male drove Mr. Burley to meet someone for a drug transaction.

[39] Mr. Burley contends that questioning in these proposed areas has a reasonable likelihood of showing that the affiant was misleading in his drafting of the ITO. Mr. Burley's counsel notes that there could have been many other explanations for Det. Cst. Knickle's observations.

[40] I deny the request for leave to cross-examine on these subjects. In this investigation, Det. Cst. Knickle was the surveillance officer and the affiant of the ITO. Det. Cst. Knickle's surveillance notes were tendered as part of the evidentiary record on the application for leave to cross-examine him. There are no material contradictions between how Det. Cst. Knickle described his observations in his notebook notes and how he described them in the ITO.

[41] Mr. Burley, who was the target of the surveillance, has not tendered any evidence, such as his own affidavit for instance, to raise the prospect that the affiant did not accurately record in the ITO what happened at the Residence between 11:20 a.m. and 11:45 a.m. on March 8, 2018. Mr. Burley essentially seeks to embark on cross-examination of Det. Cst. Knickle to challenge his claim that he observed what he says he observed, both in his notes and in the ITO. There is no evidentiary foundation on this application for leave to support the notion that Det. Cst. Knickle did anything other than record and report in his notes and in the ITO what he observed. The proposed cross-examination will not assist the Court in determining a material issue, namely whether the warrant could have issued.

[42] Furthermore, Mr. Burley quarrels with the inferences that the affiant drew from his observations. Such "[c]omplaints about an affiant's inferences, like claims of omissions, inconsistencies or conclusory or inaccurate statements afford no basis for cross-examination". Mr. Burley is entitled to make arguments on the Garofoli application that the affiant drew unreasonable inferences and thereby misled the issuing Justice or overstated the strength of the primary facts he observed. The cross-examination requested in this area will not advance the issue.

Paragraphs 15 and 16 of the ITO

[43] In these paragraphs of the ITO, the affiant details surveillance observations he made later in the day on March 8, 2018. He notes that, at 2:20 p.m., a white female in her 20's arrives at the Residence in a taxi. She was seated in the back seats of the cab. Mr. Burley arrived on a mountain bike. The female opened the rear passenger door of the cab. When she did so, Mr. Burley leaned in to the female, and Det. Cst. Knickle states in the ITO that he "observed a hand-to-hand transaction in the rear of the taxi cab". The female then got out of the cab, and she and Mr. Burley entered the front door of the Residence.

[44] In the ITO, the affiant states that, based on his training and experience, it is common for drug traffickers to sell to their customers and then have the user consume the product at the stash location to reduce the chances of being detected by the police, to reduce suspicion of members of the public, and to make the visit appear to be social in nature. The affiant states his belief in the ITO that Mr. Burley sold drugs to the female and that he invited her into the Residence to consume the drugs.

[45] Mr. Burley, again, wants to cross-examine the affiant about the location from which the officer was making his observations, and any potential obstructions, the distance between the officer and the cab when he made his observations, whether the cab had tinted windows, whether the door of the cab was open or closed when Mr. Burley leaned in to do the hand-to-hand transaction, and how long the female stayed at the Residence.

[46] Mr. Burley also contends that there is a material difference between the notebook notes of the officer and what is contained in the ITO. He points to the fact that Det. Cst. Knickle's notebook notes state that he "could not see what was exchanged" in the hand-to-hand transaction with the female. Therefore, Mr. Burley submits that he should be entitled to ask the affiant why he did not tell the issuing Justice that he could not see what was exchanged. Mr. Burley also seeks to question the affiant about the belief he expressed in the ITO that Mr. Burley sold drugs to the female and invited her in to consume the drugs in the Residence, which the affiant described as a stash location.

[47] I deny the request for leave to cross-examine on these subjects. Again, I find that there are no material contradictions between how Det. Cst. Knickle described his observations in his notebook notes and how he described them in the ITO. Det. Cst. Knickle did not swear in the ITO that he had seen what was exchanged in the hand-to-hand transaction between Mr. Burley and the female. It was not incumbent on him to specify in the ITO what he had not seen, but rather to accurately report what he did see.

[48] Again, Mr. Burley was the target of the surveillance. He did not tender any evidence that suggests that the affiant did not accurately record in the ITO what happened at the Residence between the female and Mr. Burley, starting at 2:20 p.m. There is no evidentiary foundation on this application for leave to support the notion that Det. Cst. Knickle did anything other than record and report in his notes and in the ITO what he observed.

[49] The proposed cross-examination will not assist the Court in determining a material issue, namely whether the warrant could have issued. This is yet another example of Mr. Burley complaining about the inferences that the affiant drew from his observations, and about alleged omissions, inconsistencies or conclusory or inaccurate statements. The proposed cross-examination will not advance the issue of whether the affiant drew unreasonable inferences from what he observed, and thereby misled the issuing Justice or overstated the strength of the primary facts he observed.

Paragraphs 17 and 18 of the ITO

[50] In paragraphs 17 and 18 of the ITO, Det. Cst. Knickle sets out surveillance observations he made at the Residence starting at 2:40 p.m. on March 8, 2018. He observed a female arrive and walk up the driveway of the Residence. She was texting and appeared to be waiting for a response before walking up to the Residence. She was also looking around and then proceeded to the front door of the Residence. At 2:43 p.m., she knocked on the front door. At 2:44 p.m., the door to the Residence opened and she entered. Within one minute, the female exited the Residence and walked away. Det. Cst. Knickle characterized this as a meeting of short duration which, based on his training and experience, was not indicative of a social visit but rather indicative of a drug transaction. The affiant expressed his belief in the ITO that this female attended the Residence to purchase drugs from Mr. Burley.

[51] Mr. Burley is troubled that the affiant characterized both a short visit, as seen on this occasion, and a longer visit, as described in paragraphs 15 and 16 of the ITO, as drug transactions. He submits that he should be permitted to cross-examine the affiant about this stark contradiction. Mr. Burley also wants to ask the affiant whether the female had the appearance of a drug user, and whether she was carrying anything when she arrived, or left with anything.

[52] Mr. Burley's request to cross-examine in these areas fails for the same reasons as his requests for leave on paragraphs 12, 13, 15, and 16. Firstly, the lack of an evidentiary foundation to suggest that the affiant included false or inaccurate information in the ITO which he knew or ought to have known was false or inaccurate. Furthermore, Mr. Burley's complaint about the inferences that the affiant drew from his observations, and about alleged omissions, inconsistencies or conclusory or inaccurate statements goes no further to support cross-examination on these paragraphs than it did in relation to the previous paragraphs on which he sought leave.

Paragraphs 21 and 25 of the ITO

[53] I deny leave to cross-examine the affiant on his surveillance observations at the Residence on March 20, 2018, which are contained in paragraphs 21 and 25 of the ITO. Again, there is no reasonable likelihood that the proposed cross-examination regarding Trevor McIsaac's attendance at the Residence that day will show that a material or significant portion of the ITO is erroneous and could lead to an excision of that portion, and that without it, the reasonable and probable grounds standard is not met.

[54] The proposed areas of questioning will not assist the inquiry I am engaged in as a reviewing Justice. For instance, it will not assist me to have the officer explain what he meant by "nervous mannerisms", or to tell me whether he knew about any previous connection between Mr. Burley and Mr. McIsaac, or whether it's possible that Mr. McIsaac could have been visiting other people who may live at the Residence. There is no evidentiary foundation to support a claim that anything contained in this portion of the ITO is inaccurate, and that the affiant knew or ought to have known it was inaccurate when he included it in the ITO.

[55] Similarly, I deny Mr. Burley's request to cross-examine the affiant regarding the inferences that he drew from the primary facts he observed, including the officer's observations of Mr. McIsaac visually scanning the area nervously as he left the Residence and placing a small item in his right hand into his right coat pocket before entering the vehicle. Questions about the officer's ability to observe what he says he observed are irrelevant. No evidence has been tendered on this application to contradict the accuracy of the affiant's recital of these observations in the ITO.

Paragraphs 26 and 27 of the ITO

[56] Cross-examination of the affiant is denied with respect to his observations of a female, who had the appearance of a drug user, attending the Residence on March 20, 2018 and leaving fifteen minutes later with a bald male in his 30's. No contradictory evidence exists on the application to dispute the accuracy of what the affiant placed before the issuing Justice regarding this visit.

[57] For similar reasons as those outlined above, Mr. Burley will not be permitted to ask the affiant what made this female look like a "drug user", and whether the bald male might live at the Residence, and whether the affiant did anything to investigate whether he did. Mr. Burley's request to ask the affiant about the inferences he drew from his observations, and any omissions, such as not seeing anything "actually indicative" of a drug transaction, are not proper areas of cross-examination.

Paragraphs 28, 29 and 30 of the ITO

[58] Mr. Burley advances the same argument for his request to cross-examine the affiant regarding Mr. Burley's interactions with a male who attended the Residence in a red SUV at 5:20 p.m. on March 20, 2018. Questioning about the officer's observations of this hand-to-hand transaction at the vehicle, and the officer's ability to make those observations is denied on the same basis as outlined above, that being the lack of an evidentiary foundation to support the proposed cross-examination. Again, Mr. Burley's dispute about the inferences that the affiant drew from his observations is not a proper ground upon which to grant leave to cross-examine.

[59] Mr. Burley submits that he should be permitted to challenge the affiant's statement in the ITO that the PARIS query and NICHE query regarding the SUV "did not locate anything of obvious evidentiary value". Mr. Burley suggests that perhaps these queries revealed something positive that could assist him with his challenge to the search warrant. Therefore, he should be permitted to ask the affiant what was contained in the queries. Mr. Burley submits that cross-examination will assist him in determining whether the affiant complied with his duty to be full, frank and fair when he drafted the ITO.

[60] Cross-examination is denied in this area. During oral submissions, Crown counsel provided Mr. Burley's counsel with redacted copies of the queries. Mr. Burley submits that I should permit cross-examination of the affiant on the information contained in the redacted queries. He contends that whatever information is in the queries may be of assistance on the inquiry I am conducting. At this stage, there is no evidentiary foundation to support the claim that the affiant's statement in the ITO about the results of the queries is a false or inaccurate statement which was intended to mislead the issuing Justice. The proposed cross-examination is a fishing expedition. Mr. Burley hopes that questioning in the area might disclose some evidence that could be of assistance. This is not a proper basis upon which to grant leave to cross-examine.

Conclusion

[61] Mr. Burley's application for leave to cross-examine the affiant is dismissed with respect to all proposed areas of cross-examination.

Released: February 18, 2020

Signed: Justice J.P.P. Fiorucci