ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 10-90000470-0000
DATE: 20121024
BETWEEN:
NEEV TAPIERO Applicant – and – HER MAJESTY THE QUEEN Respondent
Ron Marzel for Mr. Tapiero
Kevin Wilson for the Crown
HEARD: October 11, 2012
THORBURN J.
RULING ( Disclosure Application)
[ 1 ] The Applicant, Neev Tapiero, is charged with having committed 23 offences pursuant to the Controlled Drugs and Substances Act and the Criminal Code . The charges stem from the execution of search warrants at a storefront operation called Cannabis as Living Medicine (CALM) an organization that purports to serve those with an asserted therapeutic need for cannabis, and at the Applicant’s home. The Applicant is charged with possession of cannabis for the purpose of trafficking, possession of GHB, psilocybin and various cannabis products for the purpose of trafficking, and possession of the proceeds of crime.
[ 2 ] The Applicant seeks further disclosure from the Crown in order to challenge the issuance of the search warrants. A request for ten different sources of information is sought in the Notice of Application but during the course of his submissions, the Applicant modified his request such that he now seeks:
a. a judicially vetted copy of Detective Scott’s notes pertaining to the acquisition of the Cannabis as a Living Medicine (CALM) membership card,
b. a judicially vetted copy of steno notes referred to in Detective Brons’ notes from March 17, 2010 (to determine whether the confidential informant Larry Bleasdale who identified himself, swore an affidavit in support of this Applicant and claims he was coerced, was in fact coerced to give information or not),
c. a judicially vetted copy of all centrally recorded and/or dispatched communications by Toronto Polices Services pertaining to the arrest of Messrs. Kevin Shear and Mitchell Amaral on January 18 and Larry Bleasdale on March 17, 2010, (to see if they pertain to this investigation or another),
d. judicially vetted copies of occurrence reports involving Larry Bleasdale (again to determine if he was coerced or not into giving information), and
e. portions of the Toronto Police Services manual pertaining to the invocation of Confidential Informer Status.
[ 3 ] The Applicant claims this disclosure is relevant and material to his ability to make full answer and defence. The Applicant seeks this information so that he may cross examine the affiant in order to challenge the validity of the search warrant whereby the evidence against him was obtained. He claims it is relevant to the credibility of the affiant officer who swore the affidavits in support of these search warrants.
[ 4 ] The Crown disputes this request for further disclosure on the basis that it is neither relevant nor material to the validity of the search warrant. The Crown contends that the affidavits are not misleading and even if the affidavits in support of the search warrants were misleading, the credibility of the affiant is irrelevant in this case because the underlying information referred to in the affidavits satisfies the requirements for issuance of the search warrants.
[ 5 ] The following information contained in the affidavits is not challenged on this Application:
a. a CALM card is attached showing the website address, email address and telephone number for the organization. The card stipulates that CALM is an organization for “members who had presented medical documentation for a severe or terminal condition for which cannabis is beneficial”,
b. the affiant lists CALM’s address as 106 Queen Street East, Toronto, and
c. observations were made of drugs being purchased at this unlicensed facility.
[ 6 ] The test to determine whether a search warrant is valid or not is “whether – after excising any offending portions of the ITO, there remains sufficient basis on the record before the issuing justice, as amplified on the review, for issuance of the warrant.” ( R. v. Nguyen 2011 ONCA 465 at paras. 23 and 24 .) In other words, could the issuing justice have granted the order? ( R. v. Pires , 2005 SCC 66 () , [2005] 3 S.C.R. 343 at para. 40 .)
[ 7 ] Charron J. said in R. v. Pires , 2005 SCC 66 () , [2005] 3 S.C.R. 343 at para. 30 ,
Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context. In the end analysis, the admissibility of the wiretap evidence will not be impacted under s. 8 if there remains a sufficient basis for issuance of the authorization.
[ 8 ] In R. v. Mahal 2012 (O.C.A.) at paras 43 to 44, Watt J.A. for the Court held that “…the basis upon which an authorization may be set aside is very circumscribed…The circumstances in which leave to cross-examine may be granted are varied. The proposed cross-examination may be directed at the credibility or reliability of an informant who has provided information included in the affidavit, but must show more than that some of this information is false. Cross-examination may be permitted where the affiant’s own credibility is material to establish the statutory pre-conditions. The facial insufficiency of the affidavit may also provide a basis upon which to grant leave to cross-examine the affiant.”
[ 9 ] The case of R. v. Hosie 1996 450 (ON CA) , [1996] 107 C.C.C. (3d) 385 referred to me by the Applicant does not assist in the circumstances of this case as the sufficiency of the information in that case depended largely upon information supplied by a confidential source and inferences to be drawn from evidence provided by that source whom it was alleged was highly unreliable. As such, it was material to the statutory pre-conditions for issuance of a search warrant. Moreover, that case involved an appeal from conviction on the basis that relief sought in that case was obtained by virtue of a breach of the appellant’s section 8 Charter right and that to admit the evidence would bring the administration of justice into disrepute pursuant to section 24(2) of the Charter .
[ 10 ] In this case, the issuing judge could have granted the order to permit the searches based on the name and address of CALM, and the observations made about the activities being conducted. The statutory pre-conditions for the issuance of the search warrants are therefore satisfied without the need to make any determination as to the affiant officer’s credibility. There is therefore no basis to order further disclosure based on the material provided to me.
[ 11 ] For these reasons the Application for further disclosure is dismissed.
Thorburn J.
Released: October 24, 2012
COURT FILE NO.: CR 10-90000470-0000
DATE: 20121024
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
NEEV TAPIERO Applicant – and – HER MAJESTY THE QUEEN Respondent
Ruling (Disclosure Application) Thorburn J.
Released: October 24, 2012