ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 646/13
DATE: 20140424
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DEVON BROWNE
Gabriel Ho, for the Crown
Pharrah Bacchus, for the accused
HEARD: April 23, 2014
K.L. Campbell J.:
Ruling on Request to Cross-Examine Affiant
on Application to Quash Search Warrant
A. Overview
[1] The accused, Devon Browne, currently faces an indictment that charges him with five offences, all flowing from his alleged possession of a loaded prohibited handgun in Toronto on December 31, 2012. Members of the Toronto Police Service (TPS) discovered and seized this firearm when they executed a search warrant, issued that same day, at apartment premises on Queen Street East in Toronto where the accused allegedly resides.
[2] The accused has brought an application to quash the search warrant. The accused contends, essentially, that the impugned search warrant was issued in the absence of the “reasonable grounds” required by s. 487(1) of the Criminal Code, R.S.C. 1985, chap. C-46. The accused claims that, in the result, the search of the apartment premises was in violation of s. 8 of the Charter of Rights, and the evidence of the finding of the firearm should be excluded under s. 24(2) of the Charter.
[3] The Information to Obtain (ITO) the search warrant, which was sworn by Det. Robert Whalen of the TPS, was based, in significant measure, upon information obtained from a confidential informant. The Crown has provided the accused with a copy of this ITO that has been significantly redacted in order to protect the identity of the confidential informant. The accused now seeks leave to cross-examine the affiant on certain aspects of the redacted ITO. The Crown is opposed to this request. The only evidence that has been provided by the parties on this application is a copy of the redacted ITO.
B. The Threshold Legal Standard
[4] The parties are agreed as to the threshold legal standard that must be applied in determining whether leave should be granted to permit an accused to cross-examine the affiant in relation to his or her preparation of an ITO. They disagree only as to its application in the circumstances of the present case.
[5] According to the governing authorities, the accused is not entitled to cross-examine an affiant in relation to a search warrant or wiretap authorization as of right. Rather, the accused must first satisfy the court that the proposed cross-examination is necessary to enable the accused to make full answer and defence. More specifically, the accused must show that there is basis to conclude that the proposed cross-examination will elicit testimony tending to discredit the existence of one or more of the preconditions to the issuance of the search warrant or wiretap authorization (e.g. the existence of reasonable and probable grounds), or tending to demonstrate a subversive intention to mislead the issuing justice or authorizing judge. See: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at pp. 1462-1466; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 3, 9-10, 30-31, 40, 65, 69; R. v. Araujo, 2000 SCC 65, [2000] 2 SCR 992, at para. 54; R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.), at p. 553; R. v. Colbourne (2001), 2001 4711 (ON CA), 157 C.C.C. (3d) 273, [2001] O.J. No. 3620 (C.A.), at para. 40.
[6] While this is the threshold that the accused must meet in order to be permitted to cross-examine an affiant, this is not an especially heavy or stringent burden. The accused need not make a substantial preliminary showing of any deliberate falsehood or reckless disregard for the truth, as required in the United States. See: Franks v. Delaware, 438 U.S. 154 (1978), at pp. 155-156. Rather, the purpose of this threshold is simply to avoid unnecessary proceedings that are unlikely to assist the court in the determination of the material issues. Moreover, if there is a “reasonable likelihood” that the proposed cross-examination will assist the court in the determination of one or more of the material issues, the accused need not show that the proposed questioning “will be successful” in undermining the basis of the search warrant or wiretap authorization. See: R. v. Pires, 2005 SCC 66; R. v. Williams (2003), 2003 18484 (ON CA).
C. The Proposed Areas of Cross-Examination
[7] During the course of her submissions, defence counsel sought permission to cross-examine the affiant on a wide variety of potential topics. For purpose of convenient analysis, I would summarize these proposed lines of questioning as falling within the following categories:
(1) Details About the Gun From the Confidential Informant: The accused argues that the redacted ITO fails to provide any specific and compelling details as to the nature of the information provided by the confidential informant to the police about the accused’s unlawful possession of the firearm. Accordingly, the accused wants to question the affiant about: (a) when the accused allegedly had the firearm in his possession; (b) if the confidential informant ever saw the accused with the firearm; (c) if the accused was ever seen in possession of the firearm in the apartment searched; (d) where the accused stored the firearm in the apartment; (e) any detailed description of the firearm; (f) how the confidential informant came to possess his or her knowledge about the firearm and its alleged connection to the accused and the apartment; and (g) when the police obtained the information from the confidential informant.
(2) Reliability of the Confidential Informant: The accused argues that the redacted ITO provides no clear information that supports the alleged reliability of the confidential informant. In the redacted ITO the affiant stated that the confidential informant “has not provided information to the police in the past,” has “no known history” in this regard, and does not have an official “source number.” The affiant also stated that he corroborated the information provided by the confidential informant “through surveillance and police records,” that “[n]one of the information” from the confidential informant has been “shown to be misleading or wrong in any way,” and that his information was believed to be “credible, accurate and compelling, going beyond mere chance.” Nevertheless, the accused wants to question the affiant about: (a) whether the confidential informant sought financial compensation for his information, and whether he was, in fact, paid for his anonymous information; (b) whether the confidential informant has a criminal record, whether any such record discloses the commission of any crimes of deceit or dishonesty, and whether the details of any potential criminal record was disclosed to the justice who issued the search warrant; (c) whether the confidential informant was immersed or entrenched in the criminal lifestyle or subculture; (d) whether the confidential informant has any motive to fabricate false allegations of criminality against the accused; and (e) the details of the alleged corroboration in support of the perceived reliability of the confidential informant.
(3) Selling Drugs: The ITO stated that the accused, known by his nickname “Beanz,” “sells crack cocaine, cocaine, cocaine powder, and heroin.” The accused argues that the redacted ITO provides no details surrounding this conclusory allegation. Accordingly, the accused wants to question the affiant about: (a) when, where and how the drugs were allegedly sold; (b) how long the accused has allegedly been selling illicit drugs; (c) how the drugs were packaged and the price of the drugs for sale; and (d) whether the confidential informant ever purchased drugs from the accused.
(4) Wooden Fence at the Apartment: In the redacted ITO, the affiant described how he was able to confirm that there was a “wooden fence erected in front of the back door” of the apartment the police wanted to search. The accused contends that, because the redacted ITO is “very unclear” as to whether the confidential informant ever told the police about this fence, the accused wants to question the affiant as to whether, in fact, the confidential informant ever provided this factual information to the police.
(5) Unsuccessful Search Warrant Request – And More Investigation: In the redacted ITO the affiant stated that a search warrant for a firearm had earlier been requested for this same apartment on December 30, 2012 by another police officer, but was refused. Thereafter, according to the affiant, he reviewed the initial application and “conducted more investigation.” Given the relatively short time period between the earlier refusal of the search warrant, and the completion of “more investigation” by the affiant, the accused wants to question the affiant about the additional investigative steps that he took after the initial refusal. The accused also wants to question the affiant about how long it took him to draft the ITO, and the nature of his understanding of the legal requirements that the ITO be compelling, credible and corroborated.
D. Analysis
1. Details About the Gun From the Confidential Informant
[8] As I have indicated, the accused contends that the redacted ITO disclosed to him fails to provide any details as to the nature of the information provided to the police by the confidential informant regarding the accused’s alleged unlawful possession of a firearm. The accused wants to question the affiant about those details in order to ascertain whether there is anything compelling about them. Defence counsel argues that, notwithstanding the redactions that have been made to the ITO on the basis of confidential informant privilege, the affiant should be able to explain, in cross-examination, what is compelling or inherently reliable or credible about the details of the information provided by the confidential informant. I disagree. I decline to allow the accused to cross-examine the affiant in this area for two reasons.
[9] First, the accused is simply not entitled to cross-examine the affiant about the details of the information provided to the police by the confidential informant to the extent that those details may tend to disclose the identity of that confidential informant. The privilege is not merely a discretionary measure to be balanced against other considerations, but is a substantive rule of law that is virtually absolute in its operation, being subject only to the “innocence at stake” exception – an exception that the accused concedes has no application in this case. This privilege prevents not only disclosure of the name of the informant, but it also prevents disclosure of any information that might tend to reveal, even implicitly, the identity of the confidential informant.
[10] I have no hesitation in concluding that to permit the accused to question the affiant about such topics as when, and in what circumstances, the confidential informant may have personally seen the accused in possession of the firearm in the apartment searched by the police, is precisely the kind of inquiry that would inevitably lead to the disclosure of information apt to identify the confidential informant in violation of this important privilege.
[11] Second, to the extent that this kind of detailed information is missing from the redacted ITO, the accused can argue that the ITO is deficient. The position of the accused, as I understand it, is that the redacted ITO fails to provide any compelling and specific detailed information as to what the confidential informant provided to the police about the accused’s unlawful possession of the gun in the apartment. To the extent that the affiant, theoretically, might be able to disclose any of those details without breaching the privilege of secrecy surrounding the confidential informant, such additional details would not provide any assistance to the accused in advancing this argument. Indeed, such details would undermine that position. On the other hand, if the affiant is unable to provide any further details, the accused would be no further ahead in advancing his position. I simply do not see how this proposed line of cross-examination is necessary to enable the accused to make full answer and defence.
2. Reliability of the Confidential Informant
[12] The redacted ITO makes no mention of any criminal record for the confidential informant, nor does it make any suggestion that the confidential informant sought to be paid for his or her information. Yet, the accused wants to question the affiant about whether the confidential informant sought financial compensation from the police, the nature of any potential criminal record possessed by the confidential informant, whether the confidential informant maintained a criminal lifestyle, and whether the confidential informant might have any motive to manufacture allegations against the accused.
[13] I decline to permit the accused to conduct this proposed cross-examination of the affiant. MacDonnell J. dealt with a very similar issue in R. v. Ahmed et al., at paras. 19-21. The accused in that case wanted to cross-examine the affiant about some of the personal characteristics of the confidential sources, including “whether any consideration provided was dependent on accuracy,” whether the source was in custody, whether the source was involved in the alleged criminal activities with the accused, and whether the source had a criminal record for crimes of dishonesty. MacDonnell J. concluded that it was manifest that much of this proposed cross-examination was “capable of narrowing the pool of individuals who could have provided the information,” and thus was “capable of infringing on confidential source privilege.” While accepting that it was not the intention of the accused to infringe the privilege, MacDonnell J. observed that “it is the effect not the intention that is relevant to the question of whether the cross-examination should be permitted.
[14] The accused also proposes to cross-examine the affiant about the details of the alleged corroboration in support of the perceived reliability of the confidential informant. In my view cross-examination on this issue is simply not reasonably apt to advance the position of the accused as to whether the information of the confidential informant was corroborated or not.
3. Selling Drugs
[15] Under the heading “Confidential Source Information” in the redacted ITO the affiant outlined the details of the information provided to the police by the confidential informant about the accused, who is known to the confidential informant as “Beanz.” Significant portions of this aspect of the ITO have been redacted. Indeed, of the 14 items of information listed in the ITO under this heading, only two of these items have not been redacted. One of these two items stated: “Beanz sells crack cocaine, cocaine, cocaine powder, and heroin.” The accused argues that this is a conclusory allegation without any details, and he wants to cross-examine the affiant about the details of this alleged drug trafficking.
[16] I decline to permit the accused to cross-examine the accused on this topic. It is apparent from the redacted ITO that this particular allegation of drug trafficking by the accused comes from the confidential informant.
4. Wooden Fence at the Apartment
[17] In the redacted ITO, the affiant described how he was able to confirm that there was a “wooden fence erected in front of the back door” of the apartment. The accused contends that, because the redacted ITO is “very unclear” as to whether the confidential informant ever told the police about this fence, the accused wants to question the affiant as to whether, in fact, the confidential informant ever provided this factual information to the police.
[18] In my view, it is not at all unclear from the redacted ITO that the confidential informant told the police about this “wooden fence.” That was precisely why the police were investigating whether this wooden fence, in fact, existed – to determine whether this aspect of the information provided by the confidential informant could be confirmed or corroborated.
[19] Accordingly, as there is nothing to be gained by any potential cross-examination on this relatively minor point, I decline to permit the accused to cross-examine the affiant on this topic.
5. Unsuccessful Search Warrant Request – And More Investigation
[20] As I have indicated, the redacted ITO noted that, on December 30, 2012 a search warrant had been requested by another police officer to search for a firearm at this same apartment, and that this request was refused by a named justice. The affiant then indicated that he had “reviewed the initial application” and had “conducted more investigation.”
[21] I accept that there was a relatively brief period of time between the initial refusal of the search warrant request on December 30, 2012, and the subsequent search warrant request that was granted on December 31, 2012. In my view, however, that fact alone does not justify leave being granted to the accused to cross-examine the affiant.
E. Conclusion
[22] In the result, the application by the accused seeking the leave of the court to cross-examine the affiant is dismissed.
Kenneth L. Campbell J.
Released: April 24, 2014
COURT FILE NO.: 646/13
DATE: 20140424
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
DEVON BROWNE
RULING
On Request to Cross-Examine Affiant on Application to Quash Search Warrant
K.L. Campbell J.
Released: April 24, 2014