ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
COURT FILE NO.: M331/13
DATE: 20140930
B E T W E E N:
JAMUAR SHARAT VIJAYA
S. Hutchison, for the applicant
Applicant
- and -
HER MAJESTY THE QUEEN
R. Hubbard & M. Asma, for the respondent
Respondent
HEARD: September 22, 2014
Nordheimer J.:
[1] Following on my decision dated March 14, 2014, a further issue arises in this application, brought by the applicant pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, to quash search warrants that were obtained by the Toronto Police Service and pursuant to which they seized certain computers and hard drives, owned by the applicant, on which it is alleged child pornography is stored.
[2] I concluded, in my earlier decision, that this application is governed by the principles in R. v. Garofoli, [1990] 2 S.C.R. 1241. The issue that now arises is whether the applicant can satisfy the threshold to obtain leave to cross-examine on the basis of counsel’s submissions or whether the applicant must adduce some evidence in support of that request. If the court concludes that the latter is required, then the applicant seeks an order permitting him to examine two witnesses in order to meet the applicable threshold.
[3] The applicant’s position is, at its core, that as long as counsel has a good faith basis for asserting a factual foundation that might lead the court to conclude that cross-examination ought to be permitted, that is a sufficient basis for the court to grant leave assuming, of course, that counsel can also identify relevant lines of inquiry to be pursued. The applicant refers to certain statements in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 in support of his position, most particularly where Charron J. said, at para. 34:
For example, counsel have referred us to R. v. Vukelich (1996), 1996 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.), leave to appeal refused, [1997] 2 S.C.R xvi, where the importance of avoiding the inefficient use of court time was emphasized by McEachern C.J.B.C. Chief Justice McEachern suggested the following approach at para. 17:
Generally speaking, I believe that both the reason for having, or not having, a voir dire, and the conduct of such proceedings, should, if possible, be based and determined upon the statements of counsel. [emphasis added]
[4] As is often the case, general observations, especially as they apply to procedural matters or “best practices”, are not meant to be taken either literally or absolutely. I do not believe that Chief Justice McEachern intended his suggestion, made in an effort to avoid the inefficient use of court time, to trump the requirement for there to be an evidentiary foundation present for any decision made. Rather, I view the Chief Justice’s suggestion as having been intended to suggest that, in most instances, issues raised by way of a voir dire in a criminal proceeding could likely be resolved on the basis of a summation of the evidence captured by counsel’s submissions without the need for drawn-out evidentiary hearings. Adopting a summary process to resolve pre-trial issues is very much different than concluding that the necessary evidentiary foundation can be dispensed with.
[5] I agree with Chief Justice McEachern’s suggestion that a summary procedure not only can be, but ought to be, applied to the question of whether the threshold is met for the purpose of leave being granted to cross-examine on a Garofoli type of application. I therefore accept that, in assessing whether an applicant’s request for leave to cross-examine has met the threshold, the court ought to be able to rely on statements by counsel as to any basis that is revealed in the available evidence that suggests that cross-examination will assist in determining the admissibility of the evidence. Such a process, however, does not carry with it the result that counsel’s statements can simply come out of the air with no foundation in any of the material disclosed or in any other evidence revealed in the prosecution. By way of example, I accept that counsel can make submissions to the court based on an officer’s notes without the need for the court to actually have the officer called as a witness to simply then repeat the contents of his/her notes. Similarly, counsel can make submissions based on the content of a witness statement without the need to call the witness to repeat his/her statement. None of this, however, legitimizes the proposition that counsel can simply outline a factual scenario, that would justify granting leave to cross-examine, without being able to point to any material that would support the probable existence of that factual scenario.
[6] The distinction that I have drawn, as it applies to this case, will perhaps be clearer if I briefly set out some of the background facts of this case.
[7] On October 10, 2013, officers of the Toronto Police Service attended at the home of the applicant and his wife located in the North York area of Toronto. They were responding to a report from the applicant’s wife that, while she had been copying material from the applicant’s computers, located in the family home, she came upon pictures and other items that she believed constituted child pornography. The applicant’s wife had been copying material from the applicant’s computers because she was in the process of leaving the applicant, as a result of a marital breakdown, and she wished to have copies of various family items stored on the computers, such as photographs of their children. All of this took place while the applicant was on holidays in another Province.
[8] When the police arrived at the residence, the applicant’s wife, along with a friend who was present and who had been assisting in the copying of the material, told the police what they had found on the computers and/or hard drives. They said that they had found pictures of naked teenaged (or younger) females along with stories and videos with sexually suggestive names. The applicant’s wife told the officers that she did not want the material in the home as she was concerned that their very young children might be exposed to it. As a consequence, the applicant’s wife asked the officers to remove the computers and hard drives from the home.
[9] The officers took possession of four computers and four external hard drives. The officers took these items to 32 Division where they were placed into two property lockers. Approximately three weeks later, on November 1, 2013, the police were granted two Criminal Code search warrants for these items – one for each of the property lockers. It is these search warrants that the applicant now challenges.
[10] In support of his application for leave to cross-examine, the applicant asserts the following material facts will be revealed if cross-examination is permitted:
(i) that the applicant’s wife deliberately set out to search the computers in an effort to find material that would incriminate her husband;
(ii) that the applicant’s wife, prior to this search, inquired of the Toronto Police whether she had the right to search her husband’s computers and an officer told her she was lawfully entitled to do so;
(iii) that, prior to giving her statement to the police, a detective told the applicant’s wife not to disclose the true circumstances surrounding her search of the computers, and;
(iv) neither the applicant’s wife nor her friend actually saw any child pornography on the computers but set out to mislead the police by saying otherwise.
[11] The problem, of course, is that I have not been referred to anything in the record before me that would allow me to conclude that there is a reasonable prospect that the applicant will be able to establish that these events actually happened if he is given leave to cross-examine. Normally, in concluding that cross-examination is necessary, the court is referred, for example, to inconsistencies between an officer’s notes and certain material facts set out in the ITO. A similar example is where the defence can point to inconsistencies between a witness’ statement and the facts detailed in the ITO. Yet another example is where there are inconsistencies involving information provided by confidential informants. If none of these situations readily present themselves, another route could be the filing of affidavits from persons who have information attributed to them in the ITO that they say is inaccurate. While that is said to be the situation in this case, the fact is that I do not have an affidavit either from the applicant’s wife or from her friend attesting that the differing events, that I have set out above, did, in fact, occur nor do I have any other source of evidence of those facts.
[12] Counsel advises that neither the applicant’s wife nor her friend will provide an affidavit for fear of possible repercussions for them given the conflict between the above recited facts and what the police were told originally. However, in an effort to establish the bona fides of these assertions, counsel does say that the lawyer for the applicant’s wife has told him that the applicant’s wife has admitted to these facts. The lawyer, however, is also not prepared to provide an affidavit to that effect.
[13] An obvious alternative to affidavits being provided is, of course, for the applicant’s wife and/or her friend to be subpoenaed to give evidence on this application. That route, though, is not so clear in this case, for the following reasons. The applicant says that he would have subpoenaed the applicant’s wife and her friend to give evidence on this application but did not do so because Crown counsel took the position that the applicant’s wife and her friend were sub-affiants and, therefore, the applicant could not examine them without first getting leave, thus bringing the applicant right back to the starting position that he is now in.
[14] I must say that, in the particular circumstances of this case, I agree with Crown counsel on this point. The applicant’s wife and her friend are clearly sub-affiants in these circumstances. Their information, as relayed to the police, was the very foundation for the granting of the search warrants. As a result, the applicant’s wife and her friend are in the same position as were the witnesses in R. v. Rutigliano, [2011] O.J. No. 5742 (C.A.) where the court said, at para. 5:
The witnesses had provided information relevant to the judicial pre-authorizations and the appellants wanted to examine them for that reason. The witnesses had no relevance to the preliminary inquiry on any other basis. The fact that the witnesses were not police officers is no basis for not characterizing them as sub affiants.
Sub-affiants are subject to the same requirement for leave to cross-examine as are affiants: R. v. Durrette (1992), 1992 2779 (ON CA), 9 O.R. (3d) 557 (C.A.).
[15] As difficult as these circumstances may appear for the applicant’s efforts to obtain this evidence, that difficulty does not alter the requirement that the applicant must be able to point to evidence to substantiate his asserted grounds for obtaining leave to cross-examine. I find support for this conclusion in the many references in the case law to the requirement that, in order to obtain leave to cross-examine, the applicant must point to something in the record that would justify leave being granted. Simply put, counsel’s assurances or submissions alone are not sufficient. While I am prepared to acknowledge that there may be no clear cut statement to that effect, that result may simply arise from the fundamental principle, that I do not believe would be open to any debate, that support for any conclusion of fact must be found in the evidence. It is a conclusion that is also consistent with statements such as the following from Pires, where Charron J. said, at para. 27:
Hence, the defence does not arrive empty-handed at the evidentiary hearing. More importantly, if no basis can be shown for questioning the validity of the authorization on the strength of the disclosed material, it is generally unlikely that cross-examination of the affiant will provide further material information. [emphasis added]
[16] Another example is found in R. v. Garofoli 1990 52 (SCC), [1990] 2 S.C.R. 1421 where Sopinka J. said, at para. 88:
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. [emphasis added]
[17] Yet another example is found in R. v. Pham, [2009] O.J. No. 4296 (S.C.J.) where Hill J. said, at para. 18:
That said, as a general rule, mere pleading and argument, or an asserted “good faith basis to cross-examine” [citation omitted] do not afford a sufficient evidentiary foundation for an exercise of discretion to permit an affiant’s cross-examination: [citation omitted].
[18] The applicant says that, if this is the requirement that he must meet, he is put in a situation that is the functional equivalent of the complaint that was made in Garofoli (at para. 83). In Garofoli, the complaint was that an accused needed access to the witnesses to lay the foundation for obtaining leave to cross-examine but he could not get access to the witnesses because he did not have leave to cross-examine. The accused was then left in a stereotypical catch-22 situation.
[19] While that complaint was recognized as legitimate in Garofoli, I do not find that it has application here. First, there is nothing that precludes either the applicant’s wife or her friend from voluntarily providing an affidavit telling what is now contended to be the true story. Just because these two individuals do not wish to do so for their own personal reasons does not rise to the level of the conundrum that was discussed in Garofoli. In fact, the situation here is not appreciably different from the one that confronted the court in Durette where the accused complained that the police would not provide him with the necessary evidence. In rejecting that complaint, Finlayson J.A. said, at p. 588:
Defence counsel complain that the police officers will not permit interviews and accordingly they have no option but to subpoena their testimony. This is a reflection on the increasingly adversarial nature of criminal proceedings, but it is not enough to warrant what was asked for in this case.
[20] Further, there is also nothing that prevents the applicant from filing an affidavit of his own, or from someone in his counsel’s office, attesting to what the lawyer for the applicant’s wife told counsel for the applicant. While the hearsay nature of such an affidavit may be problematic, depending on the contents of such an affidavit, it might be admissible for the purpose of trying to meet the threshold for obtaining leave to cross-examine. That will very much depend on the exact contents of the affidavit. While I do not mean to conclude whether it would in this case, I will go so far as to caution, on this point, that the applicant would not only have to establish that the applicant’s wife and her friend have given this contradictory version of events but that there are grounds to believe that the police knew, or ought to have known, that what they were told was untrue. As Charron J. said in Pires at para. 41:
However, cross-examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false.
[21] In summary, I have concluded that the applicant must be able to point to material in the record that would establish a foundation upon which the court could be satisfied that granting leave to cross-examine either the affiant or the sub-affiants is warranted. Counsel’s submissions or assurances that such a foundation exists are not, by themselves, sufficient. I would add that, in the particular circumstances of this case, given their position as sub-affiants, the applicant cannot compel either his wife or her friend to attend to give evidence on this application without first obtaining leave to cross-examine. I would conclude by pointing out that this restriction on what otherwise might be seen as an accused’s right to elicit evidence, is justified because of the narrow issue that is currently before the court. As Charron J. point out in Pires, at para. 30:
However, the Garofoli review hearing is not intended to test the merits of any of the Crown's allegations in respect of the offence. The truth of the allegations asserted in the affidavit as they relate to the essential elements of the offence remain to be proved by the Crown on the trial proper. Rather, the review is simply an evidentiary hearing to determine the admissibility of relevant evidence about the offence obtained pursuant to a presumptively valid court order. [original emphasis]
[22] In light of my conclusions, the parties should make arrangements for this matter to be spoken to before me at 9:30 any day in order to discuss the scheduling of the next steps in this application.
NORDHEIMER J.
Released: September 30, 2014
COURT FILE NO.: M331/13
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
JAMUAR SHARAT VIJAYA
Applicant
REASONS FOR DECISION
NORDHEIMER J.
RELEASED: