ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-10-0024 and CR-12-0024
DATE: 2014-07-25
B E T W E E N:
Her Majesty The Queen,
Vern Brewer, for the Respondent
Respondent
- and -
Marcel Donald Breton,
Paul Erskine, for the Applicant
Applicant
HEARD: April 23, 2014,
at Thunder Bay, Ontario
Platana J.
Reasons On Application Seeking Leave to Cross-Examine
[1] In an earlier pre-trial application, I denied the Applicant leave to cross-examine in an oral ruling, and indicated that I would later provide reasons, which follow.
[2] The Applicant seeks leave to cross-examine the affiant, D/Cst. Roger Gagné along with the sub-affiant, D/Cst. Kevin Veillieux on the information initially sworn on November 30, 2009 and again sworn on December 1, 2009, in support of the search warrant issued December 1, 2009.
[3] The Applicant submits that the warrant was obtained without reasonable and probable grounds, in particular that the information of the confidential informants did not provide credible and reliable information to support a claim that an unauthorized firearm would be found at the residence or in the possession of the Applicant.
[4] The Applicant submits that the proposed cross-examination presents a reasonable likelihood that it will assist in the determination of whether there was a basis upon which the authorizing judge could grant the order.
[5] The Applicant acknowledges that there is no right to cross-examine. It is a discretionary decision. He relies on the decision in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R 1421, 60 C.C.C. (3d) 161 at para. 88 [Garofoli], where the court notes that “a basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds.” The Applicant submits that in this case, based on the degree of reliance by the police on the confidential informers, if the informants are discredited, then the factual basis for the authorization is undermined.
[6] Counsel acknowledges that the onus to establish a basis for such cross-examination lies on the Applicant. “A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown”: see R. v. Pires; Lising, 2005 SCC 66, 2005 S.C.C. 66, [2005] 3 S.C.R. 343 at para. 40 [Pires].
[7] Mr. Erskine submits that there is potentially false information, which the affiant must have known, or ought to have known. Further, he submits that the affiant misled the issuing justice by including information from confidential informers which he should have known was not corroborated.
[8] In anticipation of the Crown’s position, he submits that if the Crown argues that some of the information sought to be cross-examined is not material, then the information should not have been included in the first place.
[9] He further anticipates that the Crown’s position will be that to permit cross-examination will result in the identity of the confidential informant being revealed.
[10] Counsel seeks to establish three elements in the cross-examination; (1) to attack the credibility of the confidential informants, which affects the reasonable and probable grounds for issuing the warrant; (2) to determine what investigative steps were taken, if any, to determine corroboration of the information reviewed; and, (3) the affiant’s own drafting.
[11] As noted in the Factum filed on this issue, the Applicant relies on the facts that in the ITO:
The confidential informant is referred to as a “proven reliable informant.” However there is no detail offered as to how this confidential informant has shown to be proven reliable in the past. For example there is no listing of past investigations when this informant might have given information that has proven to be reliable. Also, as no date is provided as to when this informant might have provided the information used in the ITO, or the informant’s source of the information, it cannot be reasonably asserted that this was current, reliable information.
[12] Counsel further relies on the fact that:
The ITO discloses no information as to the whether the confidential information has been charged in the past with crimes of dishonesty or whether he or she was facing charges at the time he provided the information and whether this information was given based on consideration for any charges or for financial compensation so that the approving justice could assess this aspect of the confidential informant’s motivation or reliability.
[13] He notes that:
A second confidential informant is stated to be a “proven reliable informant.” However even the informant’s handler cannot supply any information as to how this informant has proven to be reliable. It is asserted that the second confidential informant has “provided reliable information in the pass [sic] which has been corroborated by the police” however there is no statement as to what that information might have been or whether the information led to the laying of charges.
[14] Counsel also argues that the:
Information to Obtain contained statements which were either untrue, inflammatory or deliberately misleading and did not constitute full, fair and frank disclosure. To support the information provided by the confidential informant, D/Cst. Gagné drafted a number of statements which he knew or ought to have known were either untrue, inflammatory or deliberately misleading:
(i) In paragraph 29 of the ITO D/Cst. Gagné states that P/C Maggrah stated that the Applicant identified himself as the owner of the property and that this occurrence “confirms Informant #1 information that BRETON is residing at 9082 Mapleward Road, Thunder Bay. … When questioned on this specific statement during the preliminary inquiry D/Cst. Gagné stated “he identified himself as the complainant.”
(ii) D/Cst. Gagné intentionally attempted to mislead the approving justice by stating as he did in paragraph 33 of the ITO where he states that “Serge Gallant has been paying the Hydro usage since 2006. As D/Cst. Gagné knew or ought to have known, the only information gleaned from the discussions between Hydro 1 Security and DC Veillieux was that the account was in the name of Serge Gallant who was the previous owner of the property. …
(iii) In paragraph 34 of the ITO D/Cst. Gagné outlines a connection between Serge Gallant and the Hell’s Angles Motorcycle Club. … There is no evidence provided linking the Serge Gallant whose name is on the Hydro 1 account and the individual identified as being associated with the Hell’s Angels. There is also no basis given for the assertion that Mr. Gallant is a close associate with the Hell’s Angels with the exception of the fact that on November 9, 2009 Mr. Gallant attended to a bar and was observed “accompanying a well-known full patch Hell’s Angels member.
(v) Under the “Grounds To Believe Items To Be Searched For Will Afford Evidence of Offence That Has Been Committed”, D/Cst. Gagné states “This firearm was seen by Informant #1 inside the residence, outside the residence and in control of Marcel Donald Breton.” In fact however, the redacted version of the affidavit says none of these things.
(vi) Under the heading “Conclusion” D/Cst. Gagné makes a number of inflammatory statements that are unsupported by facts set out earlier in the affidavit. The section refers to the close association between the Applicant and Mr. Gallant, though no evidence in the affidavit is even remotely linking the two let alone connecting them in a close relationship. …
[15] Mr. Brewer, for the Respondent Crown, submits that the determination of this question must begin with the presumption that the warrant is valid because it was issued by a court officer.
[16] He submits that evidence is the foundation for the Information to Obtain. He argues that the affiant is entitled to draw inferences from facts and to present those inferences to the issuing justice, who in turn is entitled to draw inferences from facts as accepted by the justice in the ITO. He submits if there are omissions, or mistaken facts, they must be found to be misleading. Mr. Brewer argues that the Applicant has not presented any evidence to show that any of the facts stated in the ITO are incorrect, nor anything to establish that the facts relied upon support any inference of an intention to mislead.
[17] The Crown’s position is that the fundamental purpose behind the Applicant’s wish to cross-examine is to determine the identity of the confidential informers. He submits that the Applicant has not met the test for granting leave to cross-examine D/Cst. Gagné or D/Cst. Veillieux set forth in Pires and in Garofoli, (that there is some reason to believe that cross-examination will elicit testimony tending to discredit one of the pre-conditions to the issuance of the search warrants). The Respondent also submits that a number of the issues identified for cross-examination by the Applicant are not material, in that they do not go to the evidentiary foundation for the issuance of the warrant, and therefore cross-examination should not be permitted on these points. In Garofoli the Supreme Court of Canada defined the threshold that an accused must meet before he or she will be permitted to cross-examine an affiant on the affidavit filed in support of an authorization to intercept private communications, however the principles established apply to search warrants as well.
[18] Counsel notes that the Ontario Court of Appeal decision, in R. v. Sadikov, 2014 ONCA 72, 314 O.A.C. 357 at paras. 39 and 40, summarized the applicable principles governing the granting of leave to cross-examine an affiant of an ITO in the following terms:
One method of attacking the reliability of the content of the ITO is to cross-examine its author, the affiant. An accused does not have an absolute right to cross-examine the affiant. Leave to cross-examine is required. And leave is not granted, just for the asking: Garofoli, at p. 1465; and R. v. Pires; R. v. Lising, 2005 SCC 66, 2005 S.C.C. 66, [2005] 3 S.C.R. 343, at paras. 3 and 31. To obtain leave to cross-examine the affiant, an accused must show that the proposed cross-examination will elicit testimony that tends to discredit the existence of a pre-condition to the issuance of the warrant, as for example, reasonable and probable grounds: Garofoli, at p. 1465; and Pires; Lising, at para. 40.
The proposed cross-examination may be directed at the credibility or reliability of the affiant. But cross-examination that can do nothing more than show that some of the information relied upon by the affiant is false is not likely to be useful unless an applicant can raise an inference that the affiant knew or ought to have known that the information was false; Pires; Lising, at para. 41.
[19] Counsel references the 1994 decision of R. v. Ambrose, 78 O.A.C. 135, where the Ontario Court of Appeal considered the Garofoli principles governing the cross-examination of ITO affiants with respect to a line of questioning based only on “suggested inconsistencies, omission and conclusory statements” in the affiant’s affidavit and upon evidence given by the affiant at trial, without any evidence in support of the application. The Court held that a line of questioning without the appropriate evidentiary foundation to support the allegations did not meet the Garofoli test for the granting of leave to cross-examine.
[20] Counsel also notes that Dambrot J. dealt with some of the deficiencies that the Respondent submits inform this Application in R. v. Riley (2008), 182 C.R.R. (2d) 89 (Ont. Sup. Ct) [Riley]. The applicants in Riley identified what they believed were weaknesses in the affidavit used to obtain a wiretap authorization and submitted that they were entitled to cross-examine on those weaknesses. Dambrot J. disagreed, stating at para. 11:
The weaknesses in the affidavits are matters for argument upon the Garofoli application. They are not, of themselves, grounds for cross-examination. Only where some basis exists, however meagre, that cross-examination on the point will elicit testimony tending to discredit the existence of one of the preconditions to the authorization will cross-examination be permitted. In this case, the job is done without cross-examination. The shortcoming in the affidavit is clear. It will not be “improved” by cross-examination. Accordingly, the test for cross-examination is not met. This ground provides no basis for cross-examination. All that remains is argument on the Garofoli application.
[21] Further, Mr. Brewer argues that Clark J. enunciated the applicable principles governing the granting of leave to cross-examine an affiant of a wiretap authorization in R. v. Arviko, 2013 ONSC 5327 at paras. 31-34 [Arviko]:
[31] It is well settled, on an application of this sort, that “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”: Garofoli, at p. 1465; see also Pires, at para. 65; and R. v. Ambrose (1994), 1994 1378 (ON CA), 73 O.A.C. 135 (C.A.), at para. 6.
[32] It is also clear that “[a] basis must be shown by the accused for the view that cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds”: Garofoli at p. 1465. It is not sufficient to show that the cross-examination might elicit such evidence: R. v. Washington (1997), 1997 3968 (ON CA), 104 O.A.C. 210 (C.A.), at para. 11.
[33] As stated in R. v. Land (1990), 1990 10969 (ON SC), 55 C.C.C. (3d) 382 (Ont. H.C.J.), at p. 417, the cross-examination must relate to “a matter of such significance as to be likely to influence the determination of the dual conditions precedent of probable cause and investigative necessity or to alter the character of the supportive affidavit. The essence of the materiality requirement, in other words, is the nexus which the applicant must demonstrate between the facts which were or not wrongly disclosed and the dual requirements of probable cause and investigative necessity” (emphasis in original). That statement was recently adopted by the Court of Appeal for Ontario in R. v. Nguyen, 2011 ONCA 465, 273 C.C.C. (3d) 37, where, speaking for the court, Blair J.A. stated, at para. 51, “’Materiality’ is something that bears on the merits or substance of the application rather than on its form or some other inconsequential matter.”
[34] It is also well established that, while the applicant bears an evidentiary burden, it is not an onerous one. As Charron J. stated in Pires, at para. 40:
[I]f the proposed cross-examination falls within the narrow confines of this review, it is not necessary for the defence to go further and demonstrate that cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization. Such a strict standard was rejected in Garofoli. A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown.
Discussion
[25] The application to cross-examine proceeded on the strength of the respective Application Records of the parties. Neither party called any viva voce evidence.
[26] As I noted earlier, Mr. Erskine sought to establish three elements in the cross-examination. The first of these is to attack the credibility of the confidential informants. As noted in Hemmings and Beckford, a court should act carefully in allowing counsel to do so. There is a risk that permitting such cross-examination increases the risk of revealing the identity of the informant.
[27] Applying the test in R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193, I must consider whether in the totality of the circumstances the “tip” was compelling, credible, and corroborated. Weakness in one area may be compensated by strengths in the other two. In determining the circumstances, an issuing justice is entitled to rely on the information originally provided, which in this case includes details which were ultimately redacted from the ITO in order to protect the identity of the informer.
[28] In R. v. Martin (2000), 2000 5690 (ON CA), 132 O.A.C. 50 (Ont. C.A.), referencing R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281, 112 C.C.C. (3d) 385, the court stated at para. 7: “A right to cross-examine does not include the right to have the disclosure of information that reveals the identity of an informant unless it is necessary to establish the innocence of an accused”.
[29] The fact that some details relied on by the issuing justice contain information as to the identity of the confidential informer are later redacted is not sufficient to come to the conclusion that the test has not been met.
[30] I find that there is sufficient information in the ITO as a whole, that the Applicant cannot succeed on this ground of his argument.
[31] Secondly, Mr. Erskine argues that cross-examination is necessary to determine what, if any, investigative steps were taken to corroborate the information provided. Investigative necessity, while clearly an element to consider when attempts are made to obtain a wiretap authorization is not of significance in establishing reasonable and probable grounds for the issue of a search warrant.
[32] In this case, the redacted information would appear to give sufficient information as to time and place that determining the identity of the informer becomes an easier task.
[33] The third element sought to be established by the Applicant is that the matter in which the ITO was drafted contains statements that were untrue, inflammatory or deliberately misleading, and did not constitute full, fair and frank disclosure. He further argues that the affiant relied on inferences he drew, and asked the issuing justice to rely on those inferences. In this regard I reference again the decision of Dambrot J., in Riley, where he comments that any inferences relied on by the affiant are irrelevant, and that it was for the authorizing justice to decide whether or not to draw that inference.
[34] In commenting on some of the deficiencies in the application in Riley, Justice Dambrot concluded that weaknesses themselves are not grounds for cross-examination, and that shortcomings in the affidavit would not be improved with cross-examination. The shortcomings were clear, and that aspect could be raised in any subsequent attack to the issuance of the warrant on the grounds of no reasonable and probable cause.
[35] In Garofoli, at para. 88, “Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence.” While the Applicant has challenged the reliance on the information given by the C.I.s as unreliable with insufficient background, there is nothing in the evidentiary basis of the ITO to dispute that the information was anything other than reliable.
[36] Further, the proof of the allegations asserted in the affidavit as they relate to the essential elements of the offence remain to be proved by the Crown at the trial. The review of the ITO is an exercise for me to determine whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed.
[37] The Applicant remains free to elicit relevant evidence on whether the warrant constitutes an unreasonable search and seizure within the meaning of s. 8.
[38] Dambrot J., in Riley, stated:
[6] The test is clear. In R. v. Pires; R. v. Lising (2005), 2005 SCC 66, 201 C.C.C. (3d) 449 (S.C.C.) at para. 10, Charron J., for the Court, reaffirmed the test first developed by Sopinka J. in R. v. Garofoli (1990), 1990 52 (SCC), 60 C.C.C. (3d) 161 (S.C.C.), namely:
Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds.
[14] In other words, my task is to consider the sufficiency of the affidavits placed before the authorizing judges. I will not be assisted in this task by a cross-examination of Det. Comeau with respect to these aspects of his affidavits. Whatever he could have said, but failed to say in his affidavits to justify the conclusion that the interception of any of the private communications of any of the persons named in the authorization three months after the murder would assist the investigation, and whatever he could say now with the benefit of the passage of time, is of no moment. It is the information within the four corners of the affidavits that informs this issue. Any views that might be elicited from Det. Comeau under cross-examination about how the inference could be drawn from the information in his affidavits that the interception of private communications pursuant to the authorizations would assist the investigation of the offences are entirely irrelevant. It was for the authorizing judges, and not Det. Comeau, to decide whether or not to draw that inference. It is my simple task to determine if the affidavits provided them with a basis for doing so. I will not be assisted by any opinion Det. Comeau may have to offer about the sufficiency of the affidavits. Accordingly, this ground provides no basis for cross-examination.
[39] The Applicant has not satisfied me that cross-examination of the affiant and sub-affiant is necessary for the Applicant to make full answer and defence and this application is dismissed.
___”original signed by”
Mr. Justice T. A. Platana
Released: July 25, 2014
COURT FILE NO.: CR-10-0024 and CR-12-0024
DATE: 2014-07-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent
- and -
Marcel Donald Breton,
Applicant
REASONS ON APPLICATION SEEKING LEAVE TO CROSS-EXAMINE
Platana J.
Released: July 25, 2014
/mls