COURT FILE AND PARTIES

COURT FILE NO.: 11-50000-774
DATE: 20120712

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent - and - FRANK OPOKU-MENSAH Applicant

Tanya Kranjc , for the Respondent/Crown

Richard Posner , for the Applicant

HEARD: July 9 and 10, 2012

Kelly j.

Ruling #1: Cross-Examination of the Affiant [1]

[ 1 ] On March 14, 2011 Mr. Opoku-Mensah was charged with 16 offences relating to two firearms. The firearms were seized following the execution of a search warrant on a vehicle in the parking lot of an apartment complex in Toronto.

[ 2 ] Detective Constable Steven MacNeil drafted an information to obtain a search warrant (the “ITO”). The ITO was based, in part, on information provided by a confidential informant. The warrant issued permitted a search on a “2000 black Acura Motor Vehicle with an Ontario Licence Plate BKFA339”. What was searched was a dark green Honda with licence plate BKFA339. [2]

[ 3 ] The defendant has brought an application alleging that his section 8 rights pursuant to the Charter have been violated. He seeks the exclusion of the two firearms seized following the execution of the warrant.

[ 4 ] At the commencement of the application, Counsel agreed that I should review the unredacted ITO and judicial summaries prepared by Crown Counsel. I reviewed both and concluded that the judicial summaries were sufficient to allow Counsel for the defendant to make his submissions regarding the Charter violations.

[ 5 ] Counsel for the defendant next applied to cross examine the affiant and raised the following four areas for questioning:

a. Whether there were reasonable and probable grounds to search the Honda.

b. Information regarding the past performance of the confidential informant.

c. On what basis “Stutters” is known to the affiant as “Frank Opoku-Mensah” (the defendant).

d. The corroboration of the information from the confidential informant that “Stutters” trafficks in crack cocaine.

[ 6 ] Following submissions, I allowed Counsel for the defendant to cross examine the affiant on the issue of reasonable and probable grounds to search the Honda. I denied him the right to cross examine on the other three issues. What follows are my reasons.

Analysis

[ 7 ] The parameters for cross examination of an affiant were set out by the Supreme Court of Canada in the case of R. v. Garofoli [3] commencing at paragraph 88. Those requirements for cross examination of an informant in these circumstances may be summarized as follows:

a. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the defendant to make full answer and defence;

b. A basis must be shown by the defendant for the view that cross examination will elicit testimony tending to discredit the existence of one or more preconditions to the authorization such as the existence of reasonable and probable grounds; and

c. 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.

[ 8 ] Bearing these principles in mind, I will now deal with the issues raised by Counsel.

a. Questions Relating to the Vehicle to be Searched

[ 9 ] The police were provided with information from a confidential informant. I am advised that a briefing was attended by seven police officers before the ITO was drafted and the search warrant obtained. At that briefing, it appears that officer received information that they were looking for an “older model Honda” vehicle driven by “Stutters”.

[ 10 ] The ITO was drafted after the meeting with the officers. In it, Officer MacNeil states that “STUTTERS was driving an older model Acura or Honda with an Ontario licence plate of BKFA 339”. [Emphasis added]

[ 11 ] The ITO further states that the defendant was observed driving a black Acura four door vehicle on December 21, 2010 (approximately three months before the firearms were seized). This information was gathered from police checks following the meeting.

[ 12 ] Under the heading “OBSERVATIONS”, the ITO states:

ON Monday March 14 th 2011 at approximately 4:30 p.m. Detective Constable Liam WAUCHOPE #8056 of the Toronto Police Gun and Gang Task Force attended in the area of 44 Willowridge Road. Once on scene WAUCHOPE attended in the underground parking lot of 44 Willowridge in order to locate the 2000 Black 4 Door Acura with the licence plate BKFA339. WAUCHOPE located the vehicle parked in spot #124. The vehicle was unattended at this time .

Officers are currently still on scene at 44 Willowridge Road conducting observations on the vehicle and OPOKU-MENSAH. [Emphasis added]

[ 13 ] In concluding the ITO, Officer MacNeil said that he believes there is “compelling” and “corroborating” evidence that a handgun with be located in “the black Acura with an Ontario licence plate of BKFA339 located in the underground parking lot at 44 Willowridge Road”.

[ 14 ] The warrant issued permitted the search of a “2000 black Acura Motor Vehicle with Ontario License Plate BKFA 339”. The vehicle searched was a green Honda Accord bearing Ontario License Plate BKFA 339 [4] .

[ 15 ] It is my view that the defendant has provided a basis for the view that the cross-examination of the affiant on the issue of the vehicle to be searched will illicit testimony tending to discredit the existence of one of the pre-conditions to the authorization. For instance, did the police have reasonable and probable grounds to believe that the green Honda contained the firearms? Was the information provided by the confidential informant credible or corroborated? It is on this basis that leave was granted to Counsel to cross examine the affiant on the information regarding the Acura and Honda.

b. Information Regarding the Past Performance of the Informant

[ 16 ] Counsel submits that it is important to know whether the affiant complied with the rules regarding confidential informants. Such questioning is intended to amplify whether the officer exercised due diligence to ensure that the information provided by the confidential informant was credible and/or corroborated.

[ 17 ] Crown Counsel submits that cross examination of the affiant on such an area is not necessary because Counsel has the requisite information to make such an argument about the credibility of the informant. I agree.

[ 18 ] An admission filed by Crown Counsel states that the affiant did not include the following information in the ITO:

a. Whether or not the confidential information has provided information to police in the past;

b. Whether or not the confidential information is reliable and/or unreliable based on past performance; and

c. Whether or not the confidential informant was carded.

[ 19 ] Further, the ITO does not describe the confidential informant as reliable but provides a basis as to why he finds the confidential informant to be credible at the conclusion of the ITO. The affiant states: “I find the information provided by the CI to be credible based on the investigation to date including police data base checks, observations, surveillance”. The ITO also included an Appendix “D” which is information in relation to the confidential informant “concerning the existence or non-existence of a criminal record and/or the existence of contact with the police”.

[ 20 ] Lastly, the judicial summary provided to the defendant advises that the ITO includes details regarding “reprisal(s) if the confidential informant’s identity were discovered and the confidential informant’s motivation for providing information is to receive consideration/compensation. They type(s) of consideration/compensation is/are noted”.

[ 21 ] In light of the information already provided to Counsel, I am of the view that cross examination of the affiant with respect to his past performance is not necessary. This, of course, does not preclude argument on the ultimate issues raised in this application. It may be apparent from the materials available that a pre-condition to granting the warrant was not met in these circumstances. The credibility of the confidential informant may be a significant issue that may be argued without the necessity of cross-examining the affiant.

c. “Stutters” is known to the affiant as “Frank Opoku-Mensah”

[ 22 ] In the ITO, the affiant states: “Stutters is known to me as Frank OPOKU-MENSAH with a date of birth of April 13 th , 1990”. Counsel submits that he should be entitled to cross examine the affiant as to how he knows that “Stutters” is “Frank Opoku-Mensah”.

[ 23 ] Firstly, I accept the submission that cross examination of the affiant as to how the affiant knows “Stutters” as “Frank Opoku-Mensah” might jeopardize the identity of the confidential informant. Secondly, I do not believe that such cross examination is necessary to enable the defendant to make full answer and defence. Thirdly, I do not believe that the defendant has provided a basis to show that such cross examination on this issue will elicit testimony tending to discredit one or more of the preconditions to the authorization.

d. Trafficking in Crack Cocaine

[ 24 ] The ITO contains a paragraph that states: “The C.I. advised that he/she knows STUTTERS to sell crack cocaine in the Willowbridge complex area”. Counsel submits that he should be able to cross examine the affiant to determine whether the police corroborated this information from the confidential informant.

[ 25 ] It is my view that the judicial summary provided to the defendant indicates that a basis for this paragraph was provided in the unredacted ITO. More importantly, it is my view that such questions might jeopardize the identity of the confidential informant. As such, cross examination on this issue should not be permitted.

Conclusion

[ 26 ] For the reasons set out above, leave was granted to Counsel for the defendant to cross-examine the affiant on the reasonable and probable grounds for searching the Honda.

Kelly J.

Released: July 12, 2012

[^1]: The reasons regarding this ruling were provided to Counsel on July 11, 2012. At the commencement of the proceeding today, July 12, 2012, Crown Counsel brought to my attention that there were some typographical errors regarding the license plate. On occasion, I had referred to the license plate number as “BFKA 339” which is incorrect. Those have now been changed to reflect the accurate license plate number of “BKFA 339”.

[^2]: The reference to the vehicle searched as being a “dark green Honda” was included in my reasons dated July 11, 2012 and provided to Counsel. At the commencement of the proceedings on July 12, 2012 as well, Crown Counsel restated the Crown position that she is not conceding that the vehicle searched was a “dark green Honda”.

[^3]: R. v. Garofoli, 1990 52 (SCC) , [1990] S.C.J. No. 115 (S.C.C.) — https://www.canlii.org/en/ca/scc/doc/1990/1990canlii52/1990canlii52.html

[^4]: See footnote 2 above.