Superior Court of Justice - Ontario

Court File No.: 11/1411

Date: 2013-03-27

RE: R. v. TERRENCE ROESLER

Before: Honourable Justice Timothy Ray

Counsel:
Peter Barnes, Counsel, for the Crown

Giuseppe Cipriano Counsel, for the Mr. Roesler

Heard: March 25-27, 2013

Garifoli application ENDORSEMENT

[1] There are three applications before me. They are as follows: an order for disclosure of the affiant’s notes concerning the ITO, secondly an order for leave to cross-examine the affiant, and finally an order to exclude the search by reason of a breach of s. 8, Charter of Rights and Freedoms.

[2] The defendant’s application for disclosure of the affiant’s notes is opposed by the Crown because the informant was a confidential informant. The Garifoli application is opposed by the Crown on the ground that as a preliminary matter, the defendant has failed to establish standing to bring this application; which requires evidence that the defendant has a proprietary interest in either the places searched or the items seized

[3] The defendant’s application reveals that he brings this application for leave to cross-examine Cst. Elizabeth Van Massenhoven of the Ontario Provincial Police on her affidavit sworn the 4th day of July 2011 in respect of a general warrant to search pursuant to section 487.01 of the Criminal Code of Canada granted on July 4th, 2011. The defendant challenges the constitutional validity of the initial general warrant permitting covert entry onto the said properties. The basis of the application is that the general warrant was based entirely on the ITO; and the ITO was defective in that it failed to contain the requisite reasonable and probable grounds, did not contain full fair and frank disclosure, had misleading and prejudicial information and did not contain or was not executed in accordance with the mandatory conditions.

[4] The Crown further takes the position that if the defendant establishes standing to bring this application that the applications should be dealt with in the following order: the application for debriefing notes and costs; the application for leave to cross examine the affiant of general search warrant and costs; and, the application to exclude evidence.

Disclosure of the affiant’s notes of conversations with her informant

[5] I first heard the defendant’s application for disclosure of the affiant’s investigation notes, more specifically her notes of her conversations with the informant. In point of fact the defendant had cross-examined the affiant at the preliminary hearing and thereby amplified portions of the ITO. He had also elicited some contradictory information. The defendant pointed to particular portions of the ITO as evidence of misleading statements which required disclosure of her notes. These portions included references or the absence of references as amplified by her cross-examination at the preliminary hearing that demonstrated the following: no specific grounds were advanced in the ITO that the informant was a ‘confidential’ informant; a misleading statement that she had attended the municipal office and had authoritatively confirmed that a barn fire had taken place in 2007, when in fact she had not; that the ITO neglected to note that the informant felt revenge towards the defendant, which was then established at the preliminary hearing, and that the informant had a criminal record but had not explicitly noted it in her ITO.

[6] The Crown suggested an ex parte hearing in the absence of the defendant to conduct essentially an amplification hearing on the single issue of the confidential character of the informant.[^1] The defendant clarified that he acknowledged the informant was a ‘confidential’ informant but had referenced the omission in the ITO only as evidence of an inadequate ITO which required the granting of a Garifoli order. The Crown conceded the defendant’s application for disclosure but suggested that I should review the officer’s notes and perform the redaction necessary to conceal the identity of the CI before disclosing them to the defendant.

[7] I ruled that the notes should be disclosed to the defendant subject to redaction by the Crown to protect the identity of the CI; and that it was not appropriate for the trial judge to review the un-redacted notes[^2]. The application briefly adjourned in order for the Crown to comply with my ruling.

Cross-examination of the ITO affiant

[8] On resumption, the defendant indicated that he had received the notes and had no further submissions, but wished to continue with his Garifoli application. The Crown confirmed that for the purpose of this application, he was conceding the defendant’s standing. Standing therefore ceased to be an issue.

[9] The defendant seeks an order to permit him to cross-examine the affiant in five specific areas:

a. False or misleading information in relation to the Confidential Informant;

b. The absence of compelling, credible and corroborated information of the informant;

c. The Affiant’s understanding of full, fair and frank disclosure;

d. Reasonable and Probable Grounds

e. The absence of the mandatory notice;

[10] The Crown submits that the order should not be granted since the defendant had fully cross-examined the affiant at the preliminary inquiry, and further that the ITO and the cross-examination were sufficient.

[11] The threshold test for permitting cross-examination of an affiant is not a high one. I must be satisfied that there is a reasonable likelihood that the further evidence from the affiant elicited by the defendant’s cross-examination will be of assistance to me in dealing with the defendant’s attack on the general warrant, and his Charter application.[^3] If granted though the order must be limited to described purposes on a material issue.

[12] I accept the defendant’s submission that the affiant relied entirely on the CI (confidential informant), and that she had negligible corroborating evidence, nor any personal investigative corroboration. While raising concerns about the absence of corroboration by an independent police investigation, this also brings into sharp focus the reliability of the CI.

[13] The affiant’s investigation was in many respects inadequate. These inadequacies highlight the reliability concerns of the CI. For example, the CI told the affiant that he knew of a barn on property implicating the defendant which had burned down in 2007 because of an electrical malfunction, precipitated by a ‘grow op’ but that the police were never called. In the ITO the affiant gave the impression that she had confirmed this information somewhat authoritatively by going to the local municipal office and was able to confirm this fact. It later transpired in her cross-examination at the preliminary inquiry that it was simply local gossip, that it had not been confirmed as fact by anyone at the municipal office, and further that she had not followed up with the local fire department. No reasons were given. I don’t accept the Crown’s submission in argument that the affiant would have betrayed her investigation had she enquired at the local fire. Firstly no evidence was before me that that was her reason in not pursuing the investigation, and secondly good investigative procedures could have been adopted with the fire department without disclosing the target of the investigation. In other words she could simply have reviewed all the fire records for 2007 at the fire department and confirmed or otherwise the information from the CI. She did not.

[14] The failure of the affiant to fairly and frankly deal with this issue raises concerns about the rest the ITO.

[15] Two specific areas are troubling and go to the root of the CI’s reliability in this case. They are the CI’s criminal record, and the ‘revenge’ the CI felt towards the defendant. Neither was contained in the ITO in the ex parte application, leaving open the suggestion that she attempted to misrepresent the reliability of the CI as a trusted and reliable source. If this were intentional then bad faith may be found to be evident. Neither has been amplified and disclosed to the defendant.

[16] The evidence of the CI concerning the defendants alleged drug history predates the year of the investigation. While it may be sufficient to prompt an investigation, serious questions are raised about the value of this information to obtain a search warrant. In the same vein, reliance on gossip in the community is insufficient to obtain a warrant.

[17] The affiant’s reference to hydro records is a further troubling example of a possible attempt to mislead. While she purported to show hydro usage at the premises over a period of time, she failed to obtain an interpretation of these records.. She then baldly stated that it is a known practice for grow ops to use a hydro by-pass. She had conducted no investigation to determine the likelihood of a by-pass. Clearly she intended the reader to conclude that the defendant’s hydro usage was for nefarious purposes, yet provided no evidence.

[18] In the ITO, the affiant claimed to have converted GPS coordinates to map out the properties in question, yet in cross-examination, she clearly demonstrated she had no idea. She had misrepresented what she had done, but had implied in the ITO that she had skills that she didn’t have. It also puts in question the reliability of the map that was appended to the ITO.

[19] Implicit in the foregoing is why the ITO is deficient. It raises the questions as to the affiant’s understanding of full, frank and fair disclosure in order to determine whether the deficiencies were as a result of bad faith. A finding of bad faith may well be fatal.

[20] Finally, the objective component of the ‘reasonable and probable grounds’ standard required as a basis for a search warrant must be met. It requires more than mere speculation.[^4] Cross-examination of the affiant would hopefully clarify whether a reasonable person would be able to come to the same conclusion or not.[^5]

[21] Without disclosing the identity or facts that may disclose the identity of the CI, the defendant is permitted to cross-examine the affiant. The following areas are permitted:

a. Information relevant to the CI’s reliability and credibility,

b. Absence of information and/or misinformation in the ITO, and if so the reasons therefor.

[22] I acknowledge the Crown’s undertaking at the opening of argument that he would not discuss the case with the affiant who has been present in the courthouse but not in the courtroom during this application.

Sufficiency of the ITO and the warrant

[23] The cross-examination of the affiant demonstrated that she had a fundamental misunderstanding of her obligations in the preparation of an ITO. She was of the view that it was her subjective opinion concerning reasonable and probable grounds that was important for the ITO, and that was what had guided her in its preparation. Implicit in her misunderstanding was that she was not aware of the objective component. She had no information current to 2011 (year of the ITO and warrant) concerning evidence of an offence. Similarly, she conceded that the CI had no current information either.

[24] Specifically, with respect to the barn fire, she said she just didn’t want to enquire of the fire department – “pure and simple”. She said the hydro information was in the ITO because she had it, but she said she didn’t think there was a grow op on the property, and admitted she had no evidence of a grow op. She described the inclusion of the map in the ITO as only for the emergency response team, and not because it informed her evidence of an offence. The affiant paraphrased previous dated occurrence reports in her ITO, but only those that referenced drugs, and did not speak to any of the officers involved to learn why they considered the defendant suspicious. She mis-stated in at least one case that the defendant was ‘the’ suspect when in fact he was ‘a’ suspect, and she had no idea why he was a suspect. She made no enquiries of the police officer involved in the report, because she said she had been too busy.

[25] I find the ITO totally inadequate and in many important examples inexcusably misrepresented facts as evidence of nefarious activity.[^6] It fails to meet the minimum requirement to enable a reasonable person to conclude there were reasonable and probable grounds. To put it another way, there was insufficient “reliable evidence that might reasonably be believed on the basis of which the authorization could have issued”.[^7]

[26] I find that the defendant has met the onus that there was an insufficient basis for granting the general warrant.[^8] The warrant is therefore set aside. The search that was conducted was therefore a warrantless search.

[27] I am not convinced that the affiant’s shortcomings were as a result of bad faith. To give the affiant the benefit of the doubt, the inadequacies and misstatements in the ITO look to be as a result of inadequate training and supervision.

[28] At the request of the defendant and with the consent of the Crown, the application was adjourned to continue on June 4, 2013.

Honourable Justice Timothy Ray

Date: March 27, 2013

[^1]: R v. Basi, 2009 SCC 52.
[^2]: R v. Leipert, 1996 471 (BC CA), [1996], BCJ No. 764 @paragraph 34, BCCA, appealed to the SCC on different issues.
[^3]: R v. Pires; R v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 at para. 40. (SCC)
[^4]: R v. Sanchez, 1994 5271 (ON SC), [1994] OJ No. 2260 at para 29. ( S.C.J.)
[^5]: R v Pires, , 2005 SCC 66, [2005] 3 S.C.R. 343 (S.C.C.)
[^6]: R. v. Rocha 2012 ONCA 707, [2012] O.J. No. 4991 at para. 29 (Ont. C.A.)
[^7]: R v. Araujo, 2000 SCC 65 @ para 54. (SCC)
[^8]: R. v. Campbell 2010 ONCA 588, [2010] O.J. No. 3767 at para. 45 (Ont. C.A.)