Ontario Court of Justice

Date: 2024 08 16 Court File No.: Toronto 998-23-48103098-00

Between:

HIS MAJESTY THE KING

— AND —

PAUL GREENBERG

Before: Justice Christine Mainville

Heard on: July 29, 2024 Reasons for Decision on Leave to Cross-Examine Affiant released on: August 16, 2024

Counsel: Jessica Cheng..................................................................................... counsel for the Crown Howard Cohen................................................................................. counsel for the accused

Mainville J.:

[1] The Applicant is charged with dangerous driving. After the car he was driving collided with a truck in front of him on the Don Valley Parkway (DVP), resulting in significant damage to his vehicle, the police seized the car and sought a warrant to obtain and analyze the dash cam and Event Data Recorder (EDR) inside his vehicle.

[2] The Applicant has brought an application to exclude the evidence seized pursuant to the warrant, based on an alleged violation of s. 8 of the Charter. He intends to challenge the sub-facial validity of the warrant, in addition to its facial validity. In support of his challenge, he seeks leave to cross-examine the affiant of the Information to Obtain (ITO) the warrant, Officer Franczak, as well as the sub-affiants, Officer Osborne and arresting Officer Uchman.

[3] The Crown opposes the application.

The Law

[4] A warrant, like any court order, is presumed valid. The burden is on the accused to prove the ITO was insufficient: R. v. Campbell, 2011 SCC 32, at para. 14.

Test on Review

[5] The test for review of a search warrant is “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge”: R. v. Vu, 2013 SCC 60, at para. 16; R. v. Araujo, 2000 SCC 65, at para. 51.

[6] The standard of review for an authorization is deferential. If the authorizing justice “could have” issued the warrant, then the reviewing judge should not interfere: Araujo, at para 51. Stated differently, the reviewing judge must be satisfied that there is “no justifiable basis” upon which the justice could have granted the warrant.

[7] A facial challenge to the warrant alleges “that the record before the authorizing judge was insufficient to make out the statutory preconditions.” An attack on facial validity involves an examination of the ITO by itself, not involving amplification or record evidence, and determining whether a justice could have issued the warrant: R. v. Sadikov, 2014 ONCA 72, at para. 37.

[8] A sub-facial challenge alleges that “the record did not accurately reflect what the affiant knew or ought to have known”: World Bank Group v. Wallace, 2016 SCC 15, at para. 120. An attack on sub-facial validity involves an examination of the form of the ITO with a view to “impeaching the reliability of its content” and to determining “whether, on the record before the authorizing justice as amplified on the review, the authorizing justice could have issued the warrant.”: Sadikov, at para. 38; Araujo, at para. 50; Wilson, at para. 40.

[9] The process is one of testing the accuracy of the ITO against the reasonable belief of the affiant, not against the ultimate truth of what was asserted: R. v. Paryniuk, 2017 ONCA 87, at para. 77.

[10] The assessment is based on what the affiant knew or ought to have known when the ITO was sworn: Paryniuk, at para. 77.

Leave to Cross-Examine the Affiant

[11] When conducting an attack on the sub-facial validity of the warrant, the accused may therefore seek leave to cross-examine the affiant who swore the ITO for the purpose of questioning the affiant’s reliability and credibility: Sadikov, at para. 39.

[12] The general rule is that leave should be granted where the judge is “satisfied that cross-examination is necessary to enable the accused to make full answer and defence”: R. v. Garofoli, [1990] 2 S.C.R. 1421, at para. 88. The accused must establish that there is a “reasonable likelihood” that cross-examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewing judge, including the discrediting of one or more of the preconditions to issue the warrant: R. v. Pires; R. v. Lising, 2005 SCC 66, at paras. 3, 40; Garofoli, at paras. 88-89; R. v. Soltan, 2019 ONCA 8, at para. 6.

[13] Phrased differently, “[c]ross-examination of the affiant will be allowed when the trial judge is satisfied that there is a reasonable likelihood that the proposed cross-examination will assist in determining whether the necessary grounds existed for the issuance of the search warrant”: R. v. Green, 2015 ONCA 579, at para. 34.

[14] Generally, this would only include issues of credibility and reliability of the affiant and their sources: Sadikov, at para. 40. The focus on the examination should be on the reasonableness and honesty of the affiant’s belief, not the ultimate accuracy of the information: Green, at para. 34; Pires, at paras. 41 to 43.

[15] Cross-examination should not be permitted where “there is no reasonable likelihood that it will impact on the question of admissibility of the evidence”: Pires, at para. 31.

[16] The question is: Has the defence in this case shown a basis for the view that cross-examination is likely to elicit testimony tending to discredit the existence of reasonable and probable grounds for the warrant?

The Facts

[17] The ITO sets out the fact that moments prior to the collision, a Collision Reconstruction Squad that happened to be travelling northbound on the DVP to reach another collision site, observed four to five vehicles also travelling northbound in a dangerous manner, all travelling at high speed and weaving through lanes of traffic. One of the vehicles was observed to be a grey Volkswagen. The ITO reports that this Volkswagen subsequently struck the rear of a large truck in the curb lane. Significant damage was caused to the front end of the Volkswagen.

[18] It appears that the Reconstruction Squad did not in fact observe how the collision happened, although the ITO is somewhat unclear in that regard.

[19] The ITO sets out that an officer – unidentified in the affidavit – notified dispatch of the accident and indicated that speed was a factor in the collision. It is unclear whether this statement is based on the earlier observations made by the Reconstruction Squad.

Analysis

[20] The defence argues that had the investigation at the roadside been fulsome and obvious points regarding the accident addressed and put in the ITO, the issuing justice would not have been satisfied that there were reasonable and probable grounds to charge dangerous driving and to issue the warrant.

[21] I note that for the purpose of a Garofoli analysis challenging a warrant, it is generally accepted that the police “are to be judged on what they did, not what they could have done”. The failure to take further investigative steps before seeking a warrant will not invalidate the warrant: R. v. Vu, 2011 BCCA 536, at paras. 44, 45.

[22] A failure to take investigative steps is only relevant as it relates to whether the ITO discloses sufficient grounds to authorize the warrant: R. v. Morley, 2013 BCSC 463, at paras. 21 to 22.

[23] There would therefore be limited value in ascertaining, through cross-examination, the additional steps the police could have taken in this case, given my role in reviewing the validity of the judicial authorization.

[24] Some of the arguments raised by defence counsel can also be made on the face of the warrant and ITO, without any need to cross-examine the affiant and sub-affiants.

[25] In particular, as I understand the defence’s argument with respect to the building or location to be searched identified in the ITO as being the police facility as opposed to the vehicle, this is best characterized as a facial attack on the validity of the warrant, and it can be made on the face of the ITO.

[26] Similarly, the defence argument relating to the absence of any information in the ITO that the dash cam was in working order can be made on the face of the ITO and the warrant, without any need to cross-examine the affiant. Any explanation proffered by the officers would not assist the defence in discharging its burden on the Charter challenge.

[27] Still, the Applicant does point to certain elements that, if not known to the affiant, it argues ought to have been known, and which would constitute material omissions that could directly impact the grounds to issue the warrant.

[28] For instance, the defence argues that the ITO does not contain information relating to the possible involvement of a third vehicle in the collision. The defence argues that this information tends to undermine the statement in the ITO that the collision was caused by the Applicant speeding. The Body Worn Camera (BWC) video of an officer at the scene of the collision and introduced on this application shows the Applicant telling the officer that he attempted to pass the truck but a car matching his speed boxed him in.

[29] The ITO also sets out a diagram composed by Officer Steuer, originating from the officer’s Motor Vehicle Collision Report, showing the two vehicles involved in the collision. These are identified with boxes containing the numbers 1 and 2 respectively. It also shows the “estimated dynamics” of the collision, with the Applicant’s vehicle going from the curb lane into the centre lane (of a three-lane highway) and back behind the truck in the curb lane. Less apparent on the face of the diagram is a number 3 – not framed by a box – that apparently designates a third vehicle in the centre lane and near where the truck would have been around the time of the collision. No explanation of this diagram is offered in the ITO, nor is there any indication in the ITO that there was apparently no reconstruction of the accident completed in this case.

[30] The defence argues that the above, in addition to not having made mention of the truck’s slow speed or of skid marks on the road over a distance of approximately 35 metres – that it says support the Applicant’s awareness and arguably his actions in trying to avoid a collision, as opposed to driving dangerously – are material omissions regarding how the collision in fact transpired.

[31] The defence also points to the fact that there was no mention of the light traffic on the highway, which is a fact noted in Officer Ushman’s notes, and which it argues could inform whether speed was a major factor in the collision or not.

[32] The defence also argues that the observations relating to the four to five vehicles relate to a general aggregate of about five vehicles going above the speed limit, but there is no specific indication of the speed estimate or of which car was going what speed.

[33] The ITO also doesn’t provide the names of the officers that sourced the information relating to the Applicant’s driving.

[34] Basically, the defence argues that there were significant additional facts relating to the driving and what would have led to the collision that should have been set out in the ITO, and that ultimately would bear on whether the warrant could have issued.

[35] Certainly, the police’s stated grounds to believe that the accused was speeding and that the speeding caused the collision are central aspects of the ITO and ground the belief that he committed the offence of dangerous driving.

[36] The ITO makes no mention of a third car potentially driving in a dangerous fashion in relation to the collision, despite the fact that the number 3 on the diagram could have alerted the affiant to the presence of a third vehicle in the vicinity. The fact that there were other apparently-racing vehicles means that they could have occasioned the collision.

[37] There is a basis for this line of questioning given the fact that the Applicant’s statement was known to at least one of the officers. Indeed, to challenge the suggestion in the ITO that speed was an issue in the collision, the defence points to the information known to the police (or at least to Officer Steuer) that a third vehicle was involved and had forced the Applicant to reverse his decision to change lanes and pass the truck in front of him. This may have been known to the affiant or arguably should have been known.

[38] Given the timing of the racing observations as immediately preceding the collision, it does seem reasonable to infer that the grounds to believe that speed was a factor in the collision stem at least in part from those observations. This may well be sufficient to conclude that the warrant could have issued. I must however be cautious about pre-judging the issue, given the information the defence points to that may undermine this inference.

[39] The Applicant filed an affidavit on this application stating that Officer Uchman advised him “in no uncertain terms that the damage to the vehicle as evidence of excessive speed served as his affirmation to lay the criminal charge of Dangerous Operation.” This points to the possibility that speed may have been inferred based on the damage occasioned, as opposed to the earlier observations of the four to five vehicles. If accurate, this may undermine the account that the earlier observations informed the grounds that the Applicant’s vehicle was one of the ones speeding and weaving through traffic.

[40] Moreover, the Applicant was not immediately arrested upon the Reconstruction Squad stopping to assess the collision scene. Nor does it appear that the other four vehicles were intercepted, or that any direction was dispatched in respect of these racing vehicles.

[41] Given the fact that the sub-affiants apparently did not observe the collision and given the Applicant’s affidavit, as well as the centrality of these issues to the grounds to believe that the Applicant was driving dangerously, I think it appropriate in this case to enable cross-examination of the affiant and sub-affiants on these points.

[42] These elements do go to the foundation of the authorization. They are not peripheral to the issue of the grounds to believe that the Applicant was driving dangerously.

[43] While the warrant may otherwise appear sufficient, I must be cautious not to pre-judge the ultimate issue. As stated in Pires, at para. 69:

Although the likely effect of the proposed cross-examination must be assessed in light of the affidavit as a whole, … the threshold test for determining whether cross-examination should be allowed is separate and distinct from the ultimate question of whether the authorization is valid. Hence, in determining whether the threshold test has been met, the trial judge cannot decide the question simply on the basis that other parts of the affidavit would support the authorization. The focus, rather, must be on the likely effect of the proposed cross-examination and on whether there is a reasonable likelihood that it will undermine the basis of the authorization. [Emphasis added.]

[44] I note that the insufficiency of the affidavit, such as a conclusory statement, or an apparent understatement of the progress of the investigation, on its face may suffice to show a basis for cross-examination: Pires, at para. 44. Other relevant considerations in determining whether to grant leave to cross-examine the affiant include whether there are ambiguities in the ITO that could alter the determination of reasonable grounds; whether the affiant provided bald conclusions about the grounds for belief; whether there are material omissions; and whether there is any basis in the record to reasonably expect that the proposed cross-examination will have a tendency to show that the affiant has not accurately and fairly presented the investigative information.

[45] Certainly, there is no need to include every single piece of information in an ITO: R. v. Nguyen, 2011 ONCA 465, at para. 51. Only “material facts” must be included: Araujo, at para. 46.

[46] Nevertheless, the affiant, in drafting the ITO, must “make full, frank and fair disclosure of all material facts in the ITO supporting the request”: R. v. Nguyen, 2007 ONCA 24, at para. 48; R. v. N.N.M. (2007), 223 CCC (3d) 417 (Ont. S.C.), at para. 320. The facts must be set out “truthfully, fully and plainly”: N. N.M., at para. 320.

[47] A failure to draft an ITO that is full, fair and frank may be a breach of s. 8 of the Charter: R. v. Rocha, 2012 ONCA 707.

[48] The defence here points to some potential gaps in the affidavit that warrant cross-examination.

[49] The Supreme Court in Pires makes clear that the threshold for leave is not onerous: paras. 40 and ff. The Applicant does not have to establish that cross-examination will be successful in disturbing the foundation for the granting of the warrant: “A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown”. Pires, at para. 40.

[50] The purpose of requiring leave to cross-examination the affiant and sub-affiants is to avoid prolixity, and the need to protect confidential informants: Pires, at para. 33. The latter consideration is not relevant in the present case, and the very brief ITO at issue here as well as the focused nature of the issues relating to the requisite grounds for the warrant to issue do not raise prolixity concerns.

[51] As stated by the Supreme Court in Pires, at para. 31: “The Garofoli threshold is all about relevancy”. The proposed line of cross-examination here is directed at the grounds to believe the Applicant was driving dangerously when he collided with the truck. This is clearly the crux of the issue, and he should be able to canvass this with the affiant and sub-affiants given the apparent availability of a broader scope of information than was reflected in the ITO, and the ambiguities in statements that were made in the ITO.

[52] Ultimately, I believe there is a “reasonable likelihood that the proposed cross-examination will elicit evidence that tends to discredit the existence of a condition precedent to the issuance of the warrant”: Sadikov, at para. 45.

Scope of the Permitted Cross-Examination

[53] Where cross-examination is permitted, it should be restricted to “questions that are directed to establish that there was no basis on which the authorization could have been granted”: Garofoli, at paras. 88-89. The judge may further limit the area of cross-examination to specific issues of controversy: Pires, at para. 10.

[54] I propose to adjudicate any issues as to the scope of the cross-examination as they arise. For the sake of clarity, however, I do note that to enable the defence to test the credibility and reliability of the affiant and sub-affiants, cross-examination may also include some of the themes referenced above relating to arguments that are otherwise ones that can be argued on the face of the warrant and ITO.

Released: August 16, 2024 Signed: Justice Mainville