WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

( b ) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2021 02 09 Court File No.: Central West Region 998 19WYD 3662

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

C.S. (No. 2)

Before: Justice J. De Filippis

Heard on: January 14, 2021 Reasons for Ruling released on: February 9, 2021

Counsel: Mr. T. Morris......................................................................................... counsel for the Crown Mr. S. Buchanan................................................................... counsel for the young person

De Filippis, J.:

INTRODUCTION

[1] The defendant is charged with numerous offences with respect to one complainant, including assault, sexual assault, forcible confinement, firearms offences, and child pornography. This trial is scheduled before me in March 2021. The defendant and complainant are now adults. The defendant is charged as an adult with child pornography charges. That trial is scheduled before me in July 2021.

[2] The list of charges and procedural history to these cases is set out in a prior ruling I issued with respect to a disclosure motion brought by the Defence; see R v C.S., 2020 ONCJ 5255. Like my previous ruling, this one applies to both the youth and adult trials.

[3] What follows is not a statement of fact. It is an account of allegations and information, including hearsay. It is taken from the material filed by the parties with respect to the present motion.

[4] PC Kaufamn responded to the complainant’s initial call to police. The complainant said the defendant forced her to have intercourse and threatened her with violence if she did not submit. On two occasions she attended the hospital to deal with injuries caused by the defendant, including a cut to the face, requiring five stiches. She also told PC Kaufman that the defendant had left threatening messages on her phone. The officer listened to one such message. The complainant added that the defendant had distributed naked images of her on the internet, some of which were seen by a mutual friend. PC Kaufman contacted this third party and he confirmed having seen the naked images. The officer provided this initial report to the sexual assault squad.

[5] The complainant later provided a more detailed video recorded statement. In this statement she also revealed that the defendant had threatened her with a gun and posted a photograph of himself holding a gun on facebook. The police obtained an image of a masked man holding a gun. They interviewed the mutual friend who had seen the naked image. The complainant’s father was also interviewed. He confirmed the relationship between his daughter and the defendant and repeated what she had told him about physical abuse. Hospital records were obtained that confirmed the complainant had sought medical attention on two occasions.

[6] PC Murphy was assigned the task of presenting an Information to Obtain (ITO) to a judicial officer in support of a request for a search warrant of the defendant’s home. I have reviewed that 104-paragraph document. The affiant sets out her understanding of the complainant’s allegations as well as the information provided by her father, the mutual friend, other reports filed by investigators. The ITO also references the facebook images and hospital records.

[7] The present ruling responds to a Defence request for leave to cross-examine the affiant, PC Murphy, and sub-affiants, PC Mander and PC Richardson, with respect to the ITO. This motion was argued virtually. Counsel and the defendant appeared by zoom. Prior to the oral argument, I received written submissions from the parties.

[8] Having regard to the manner in which this motion was initially presented and subsequently pleaded, I will begin with a statement of the relevant law. This is well established and not in dispute in this case.

LEGAL PRINCIPLES

[9] It will be helpful to begin with a definition of certain basic terms. A Garofoli Motion is a challenge to a search warrant (or wiretap authorization), pursuant to section 8 of the Charter of Rights and Freedoms. Challenges to the judicial orders address the sufficiency of the information set out in the Information to Obtain (ITO). This is known as an attack on facial validity. In such cases, the reviewing judge must determine whether there is a basis upon which the authorizing judge could be satisfied that the preconditions for the granting of the authorization existed. In order to resolve such challenges, it is generally enough to examine the relevant documents and to assess their sufficiency on their face. Cross-examination of an affiant is relevant only with respect to sub-facial validity. Thus, if it is shown that statements by the affiant in the ITO or affidavit may not be accurate or pertinent information that could have affected issuance of the order was omitted, cross-examination will be relevant.

[10] It is important to always keep in mind that judicial orders are presumptively valid. A sub-facial challenge to a search warrant attacks the underlying reliability of the order. The basis upon which the order may be quashed is set out in Garofoli, at paragraph 56:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[11] The reviewing judge will excise false, misleading or erroneous information from the affidavit; R v Ebanks, 2009 ONCA 851, 249 C.C.C. (3d) 29 at para. 28. Where the erroneous information is due to simple error, rather than a deliberate attempt to mislead the issuing justice, amplification may be permitted to correct these technical or minor mistakes. After excising any erroneous facts and/or amplifying the record the reviewing judge must determine if there continues to be reliable information upon which the issuing judge could have granted the authorization. The Supreme Court explained in R v Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, that"In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued."

[12] In challenging a search warrant, there is no right to cross-examine the affiant. In Garofoli the court held, at paragraphs 88-89:

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

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

[13] Although a judge considering an application for leave to cross-examine does not at that stage determine the ultimate Garofoli issue, the latter informs the former. The limited role of the reviewing judge means there is no point in permitting cross-examination if it is unlikely to affect the admissibility of the evidence. Thus, leave to cross-examine may be denied even if it would reveal factual inaccuracies, material omissions, or overstatement. In R v Cook, 2008 ONSC 4764, [2008] O.J. No. 4764 Sup. Ct.), Justice Hill noted that:

recognizing that leave to cross-examine ought not to be given where there is no reasonable likelihood that it will impact on the admissibility of the evidence ... it is necessary to examine the nature of the alleged errors...in light of the affidavit as a whole to determine whether they are relevant to a central or foundational issue underlying the existence of reasonable grounds.

[14] Non-disclosure can be a basis for cross-examination of an affiant. In this regard, it is helpful to recall what Justice Galligan (then a trial judge) had to say about the affiant's duty to make full, fair, and frank disclosure [R v Ho, [1987] O.J. No. 925]:

. . . . I think it worth saying that the police in preparing affidavits in support of the applications for wiretap authorizations have to be somewhat selective. They cannot put into it their whole investigation. To disclose everything is not practically feasible, and in the area of opening the packet it may be inimical to the public interest.

In my opinion what they must do is give sufficient highlights of the investigation ... much of the investigation need not be disclosed, and the bare fact of some non-disclosure cannot be grounds for setting aside the authorization. It is only non-disclosure of a matter material to the judicial decision that could satisfy setting aside the authorization.

[15] The foregoing observations should not be seen to place an undue burden on the Applicants. Cross-examination should be permitted where there is a reasonable likelihood that it would elicit evidence of probative value to reviewing judge: R v Williams, 2003 ONCA 5122, [2003] O.J. No. 5122 (OCA). In this regard, the law does not require an Applicant to present a prima facie case in support his/her assertions or make a substantial preliminary showing of fraud or recklessness on the part of the affiant. However, an Applicant must do more than merely suggest inconsistencies and make conclusory statements. The Applicant must point to the evidentiary basis to justify cross-examination: R v Ambrose, 1994 ONCA 1457, [1994] O.J. No. 1457 (OCA). This foundation can be demonstrated on the face of the affidavit, without additional extrinsic evidence. However, as a practical matter, this may not suffice because if there are deficiencies on the face of the affidavit, they will speak for themselves and do not require cross-examination. In any event, the requirement for an adequate evidentiary record prevents "fishing expeditions".

[16] Leave may also be granted to cross-examine "sub-affiants", that is, those who provided information to the affiant. These are usually other police officers. It may be that the test for such cross-examination is higher; in R v Durette, 1992 ONCA 1044 at paragraph 101, [1992] O.J. No. 1044 at paragraph 101, the Court of Appeal for Ontario held that the Applicant must articulate "the utility of cross-examining" the sub-affiants.

[17] In presenting an ITO, an affiant has the duty "to make full and frank disclosure" to the issuing justice. In R v Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, it was held that,

... When seeking an ex parte authorization such as a search warrant, a police officer -- indeed, any informant -- must be particularly careful not to "pick and choose" among the relevant facts in order to achieve the desired outcome. The informant's obligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.

[18] Garofoli did not hold that an otherwise valid warrant could be set aside on the basis that the affiant had deliberately misled the judicial officer. However, that issue was later revisited. As pointed out by the Court of Appeal for Ontario in R v Paryniuk, 2017 ONCA 87, a reviewing justice has a discretion, in such cases, to set aside a warrant:

[69] What is clear, however, is that previous authority in this court has recognized a residual discretion to set aside a warrant despite the presence of a proper evidentiary predicate for its issuance where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like…..

[70] These same authorities, both in Ontario and elsewhere, describe the standard to be met to invoke this discretion as high. Indeed, some require that the conduct amount to an abuse of process….

THE ISSUES

[19] The motion for leave to cross-examine the affiant asserts that cross-examination would undermine the reasonable and probable grounds (RPG) upon which the search warrant rests and, also that the affiant deliberately misled the issuing justice and, as such, the warrant must be set aside. The written material filed by both parties is thorough and helpful. However, the Crown response is a complete answer to claim that the first assertion about RPG. I have carefully reviewed the ITO and I accept the Crown submissions on point. I need not dwell on this as the written material is part of the record. Moreover, that issue was effectively conceded by the Defence in oral argument; that is, in its initial application, the Defence listed information that is said to have been improperly included or excluded but, later, the Defence argued that even if cross-examination about these matters would not tend to undermine RPG, it should be allowed because the cumulative effect of the impugned material amounts to fraud upon the court.

[20] The balance of these reasons will deal with the Defence claim that cross-examination should be permitted to explore whether the affiant failed to make full, fair and frank disclosure to the authorizing justice, such that she obtained the search warrant by deception.

ANALYSIS

[21] The failure to make full, frank, and fair, disclosure is said to arise because of the affiant did the following with respect to the ITO:

(1) Included the fact that the police records show 31 prior occurrence reports about the defendant (five of which dealt with interactions between the defendant and complainant);

(2) Omitted to mention that the complainant faced charges of violence [she later pleaded guilty to some of these charges];

(3) Omitted to mention the criminal record of the mutual friend who said he saw the naked image of the complainant on the internet;

(4) Omitted to mention that the complainant’s father, whose second-hand account of the complainant’s allegations is referenced in the ITO, has a criminal record;

(5) Relied on a summary of the complainant’s allegations without reviewing the entire recorded statement she provided to police. In this regard, it is asserted that there is repeated reference to forced intercourse in the ITO, but in the subsequent interview, the complainant said it happened once;

(6) Failing to mention that although the complainant told police the hospital staff said they knew the defendant had caused her injuries, this fact was not noted in the medical records;

(7) Included the fact the assertion that at the hospital the defendant answered all medical questions about the complainant – “to support the dominance theory” – but omitted to mention that the complainant was screaming and would only give one-word answers;

(8) Included the assertion by the complainant and the mutual friend the defendant had distributed an intimate image of the complainant, but did not look at that image herself to confirm the allegation;

(9) Relied on a summary of what the complainant’s father had said without reviewing the entire recorded statement he provided to the police;

(10) Relied on an initial statement by PC Kaufman without confirming the “broad details” against subsequent information received;

(11) Included a report by PC Mander to support the belief that the defendant was holding a gun, although the photograph in question shows a person with his face covered;

(12) Including PC Mander’s report that the defendant had denied he was the person in the aforementioned photograph but failing to “highlight” this denial;

(13) Failing to disclose what the affiant asked PC Richardson to “evoke” his response that the gun in question would still be present in the defendant’s home;

(14) Incorrectly described a threatening “voice memo” as “voice mail” and did not mention the former had not been preserved;

[22] The Crown says the residual discretion is Paryniuk to stay for abuse of process based upon deliberate deception is a high bar. This is true. However, I accept the Defence reply that on this motion, the question is not whether abuse of process has been established but whether cross-examination would show a reasonable basis to believe the affiant’s want of duty could set up such a claim. That said, I am not persuaded that the Defence has laid this necessary foundation.

[23] Items 1 to 4 can be grouped together. The Defence position is that it was deceptive for the affiant to reference occurrence reports about the defendant and omit outstanding charges and convictions with respect to the complainant, her father, and the mutual friend. The occurrence reports themselves are not part of the ITO. On my reading of the ITO, their existence merely serves to introduce that fact that the defendant has a youth record, was on probation at the time, and was flagged as “violent” on CPIC. I note that the Defence does not take issue with these facts in this application.

[24] The fact that the complainant faced outstanding charges at the time she reported the allegations to the police, in the circumstances of this case, is irrelevant. It cannot be seriously suggested that this fact would have caused the issuing justice to reject the application for the search warrant or that the omission of this information was intended to prevent this result.

[25] The information attributed to the mutual friend of the defendant and complainant confirms the latter’s report that the defendant posted intimate images of her on the internet. The complainant’s father repeats hearsay about some of his daughter’s allegations and confirms certain other facts. That they have criminal records should have been disclosed to the issuing justice – as was the criminal record of the defendant. This omission is a matter that may be relevant to any argument about the validity of the search warrant, but it is plain and obvious, and does not offer a basis to cross-examine the affiant.

[26] Items 5 to 14 are without merit. There is no basis to conclude this information amounts to a failure to make full, fair and frank disclosure and cross-examination could not show otherwise. In this regard, the aforementioned comments by Justice Galligan in Ho are instructive. The duty upon an affiant does not include presenting a ‘trial transcript’ to the authorizing justice. Of necessity, the affiant must be selective – provided always, that the account is full, fair, and frank. In this regard, it is also worth noting that the police do not always have the luxury of time. In the present case, for example, the allegations included these; the defendant had physically and sexually abused the complainant and had pointed a gun at the complainant’s head, along with the threat to kill her if she went to the police.

[27] There are additional considerations with respect to item 5: The complainant told PC Kaufman, the initial responding officer, that the defendant had forced her to have sexual intercourse with him on a number of occasions. She repeated this in her video recorded interview with the police. However, Defence counsel asserts, because of the disclosure in his possession, that later in the video interview, the complainant clarified that the forced sex happened once. The affiant deposed that she relied on a summary of the video interview and watched parts of it. Cross-examination of the affiant is presumably sought to determine if the affiant was aware of the complainant’s later clarification and, if so, this fact was not included the ITO. Such cross-examination is pointless. I am confident the affiant did not review the relevant portion of the recorded interview. My confidence rests on the fact that the she could not be in any doubt that both statements by the complainant – it happened many times and only once – would be obvious to all through disclosure. Moreover, the affiant would know that for the purposes of the ITO, it matters not whether the complainant claimed to be raped many times, or once.

[28] The motion for leave to cross-examine the affiant and sub-affiants is dismissed.

Released: February 9, 2021 Signed: Justice De Filippis