COURT FILE NO.: CR-12-2572-00
DATE: 2014-10-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. Leising, for the Respondent
Respondent
- and -
TRISTAN THOMAS
C. Israel, for the Applicant
Applicant
HEARD: January 6-7, 9-10, 13, May 20-23, 26, 2014
REASONS FOR JUDGMENT
Barnes, J.:
INTRODUCTION
[1] Mr. Tristan Thomas is charged with possession of marijuana x 3; possession for the purpose of trafficking (cocaine) x 1; possession of cocaine x 1. All offences are described in the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
[2] These charges arise from the arrest of Mr. Thomas on May 3, 2011, and the search of his residence at 62 Sheldrake Court in Brampton, Ontario. The search yielded a quantity of marijuana and cocaine.
[3] The search was conducted pursuant to a search warrant (“telewarrant”). Mr. Thomas challenges the telewarrant, pursuant to s. 8 of the Charter, on the basis that there were no reasonable and probable grounds to support issuance of the warrant.
[4] Mr. Thomas seeks leave of this court to cross-examine the affiant and sub-affiant of the information to obtain (“ITO”) the telewarrant.
[5] I have carefully considered the submissions of counsel and the evidence; however, I only refer to portions of the submissions or evidence as is necessary to provide context for and to explain reasons for the conclusions I have reached.
BACKGROUND FACTS
[6] On May 3, 2011, Constable Brady McEachern of the Peel Regional Police Service applied for a telewarrant to search 62 Sheldrake Court in Brampton, Ontario.
[7] Constable McEachern submitted an ITO at 3:33 p.m. (“First ITO”) but it was rejected by the reviewing Justice of the Peace. At 5:38 p.m. he submitted a second ITO (“Second ITO”) and then a third ITO at 6:42 p.m. (“Third ITO”). The Third ITO was approved, and the telewarrant was granted. It was valid from 7:30 p.m. on May 3, 2011, to 9:00 p.m. on May 4, 2011.
[8] On May 3, 2011, at 8:10 p.m. Mr. Thomas was arrested by the police. At 9:10 p.m. the warrant was executed and his residence at 62 Sheldrake Court was searched. The items found in the residence include 33 grams of crack cocaine and 82 grams of marijuana. In a vehicle parked in the garage, the police found 132 mature marijuana plants and 60 marijuana seedlings.
LAW
[9] The law governing the cross-examination of an affiant and/or sub-affiant to an ITO can be succinctly summarized as follows:
(a) A search warrant is presumed to be valid. The applicant has the burden of establishing that there is no basis for its authorization: R. v. Campbell, 2010 ONCA 588 at para. 45, [2010] O.J. No. 3767;
(b) There is no automatic right to cross-examine the affiant, leave of the court is required: R. v. Garafoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115;
(c) To obtain leave to cross-examine, the applicant must demonstrate that cross-examination is necessary for the applicant to make full answer and defence: Garafoli, at p. 1465;
(d) The ability to make full answer and defence means that the cross-examination is relevant to a material issue. It is a test about relevancy to a material issue: R. v. Pires; R v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343;
(e) Relevant to a material issue means relevant to the existence of one of the preconditions to the authorization, for example reasonable and probable grounds: Garafoli, at 1465; Pires and Lising, at para. 31;
(f) Thus, the applicant must satisfy the court that the cross-examination of the affiant 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”: Garafoli, at 1421;
(g) The applicant is not required to prove that the cross-examination will elicit testimony “tending to discredit the existence of one of the preconditions to the authorization” rather the applicant is required to demonstrate that there is a “reasonable likelihood that the [cross-examination] will assist the court to determine a material issue [which is an issue tending to discredit the existence of one of the preconditions to the authorization]: Garafoli; Pires and Lising, at para. 40;
(h) If the cross-examination is not likely to elicit testimony that is likely to “discredit the existence of one of the preconditions to the authorization” it should not be permitted: Pires and Lising, at para. 40; and
(i) Within the context of the fact that the applicant must only raise [not prove] that there is a reasonable likelihood that cross-examination may elicit testimony “discrediting the existence of one of the preconditions of the authorization”, the practical effect of Garafoli, and Pires and Lising is that the court must consider the following questions: If the applicant’s cross-examination of the affiant is successful in eliciting the evidence described, will that evidence tend to discredit one of the preconditions for granting the authorizations? If the answer is yes: cross-examination should be permitted; if the answer is no, cross-examination should not be permitted.
[10] The preconditions for granting the telewarrant are set out in s. 487.1 of the Criminal Code which governs the issuance of telewarrants.
[11] Section 487.1(1) reads:
Where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make application for a warrant in accordance with section 256 or 487, the peace officer may submit an information on oath by telephone or other means of telecommunication to a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter.
[12] The peace officer (“affiant”) seeking the telewarrant is required to include a statement that all the information contained in the ITO is true. This statement is deemed to be a statement under oath: Criminal Code, s. 487.1(3).
[13] The essential preconditions for issuing the telewarrant are set out in s. 487.1(4):
It must set out the circumstances that make it impracticable for the peace officer to appear personally before a justice;
It must include a statement of the indictable offence alleged, of the place to be searched and the items to be seized;
There should be a statement of the peace officer’s grounds that the items to be seized will be found in the premises to be searched; and
It must disclose any prior applications for a warrant under s. 487.1 or other search warrant, for the same matter.
[14] The telewarrant in this case was executed at night. Section 488 requires that all warrants issued under 487 or 487.1 shall be executed during the day, subject to these exceptions:
(a) the justice is satisfied for it to be executed at night;
(b) the reasonable grounds are included in the information; and
(c) the warrant authorizes that it be executed by night.
[15] Therefore another precondition, in the present case, is that the affiant must include a statement about the reasons why the night time execution of the telewarrant is necessary.
[16] To be successful the applicant must satisfy the court that there is a “reasonable likelihood” that the cross-examination of the affiant will elicit evidence that would likely discredit one of the preconditions for the issuance of the warrant: Garafoli; Pires and Lising.
ANALYSIS
[17] In applying the test articulated in Garafoli, Pires and Lising the reasons proffered by the applicant for cross-examining the affiant are assessed in the context of all the information contained in the ITO.
(a) URGENCY
[18] The affiant sent a total of three telewarrants to the justice for review. The First ITO was refused by the justice on four articulated reasons, which are unnecessary to reproduce here.
[19] A Second ITO was sent by the affiant at 5:38 p.m. and a Third ITO was sent to the justice for review at 6:32 p.m. The First ITO was sent during regular business hours and there is no explanation from the officer in the First and Second ITO as to why it was impractical to appear personally before a justice. Further, the reasons why it was impractical to appear before the justice only appeared in the Third ITO which was faxed at 6:42 p.m.
[20] Each ITO was sent to the justice by fax. The parties agree that each fax cover sheet had the words “not urgent” written on it.
[21] The Crown agreed that, for the purposes of the application, between the Second ITO and Third ITO there was contact between the affiant and the reviewing justice.
[22] The applicant submits that cross-examination is likely to elicit testimony which could discredit the precondition of “impracticality of appearing personally before a justice”: Criminal Code, s. 487.1(4)(a).
[23] The Crown submits that there is no requirement in the Criminal Code that telewarrants only be issued when there are circumstances of urgency, and therefore whether there was urgency or no urgency is irrelevant. The court is also asked to take judicial notice that after the hours of 4:30 p.m. there is no Justice of the Peace available in the jurisdiction to facilitate personal contact with the peace officer.
[24] The term “impractical” under s. 487.1(1) of the Criminal Code has been interpreted using a functional approach dependent on the circumstances. As Saunders, J. A. observed in R. v. Erickson, 2003 BCCA 693, at para. 33, [2003] B.C.J. No. 2982:
33 "Impracticable" is not a word commonly used as a legal standard. More common words include reasonable, urgent, emergent, exigent, necessary, and reasonably necessary. Parliament has chosen to use the word "impracticable", and clothed the process with extra protection for an accused through the requirement to file a transcription of the conversation. It is reasonable to conclude that "impracticable" means something less than impossible and imports a large measure of practicality, what may be termed common sense.
[25] In effect, “impractical” is not limited to circumstances which are exigent or urgent. Reasons which demonstrate that under the circumstances no justice was available will suffice: R. v. Robinson, 2011 ONSC 1388, at paras. 19-24, [2011] O.J. No. 2527.
[26] The existing record is clear: the affiant failed to explain why it was “impractical” to see a “Justice in person” when he sought the first telewarrant during regular business hours. The reviewing Justice of the Peace refused the First ITO without reference to the failure to provide reasons for the use of the telewarrant; the justice communicated the reasons for refusal in writing; and the Second ITO did not include reasons why it was “impractical to appear before a justice”. However, although the ITO was submitted after 5:00 p.m., I take judicial notice that it would be impractical to see a justice after the courts have closed for the day. It is conceded by the Crown that there was contact between the justice and the affiant which prompted the submission of the Third ITO because it resulted in the issuance of the telewarrant and contained the following reason for the use of the telewarrant: “there is currently no justice of the peace available in the Region of Peel”.
[27] These facts speak for themselves and cross-examination of the affiant will illicit no new information likely to discredit “the impracticality” precondition.
(b) NIGHT TIME SEARCH
[28] The First ITO and the Second ITO did not include reasons for why the telewarrant should be executed at night. It is conceded that there was contact between the justice and the affiant prior to the preparation of the Third ITO which included the following two paragraphs in support of the request for a night time search:
(a) Police currently have the address of 62 Sheldrake Court, Brampton under surveillance waiting for a signed criminal search warrant; and
(b) Tristan Thomas is currently out of the residence, and in order to prevent the loss or movement of evidence other parties possibly within the residence police will attempt to arrest the accused prior to the execution of the warrant.
[29] For reasons already articulated, we know from the concession made by the Crown that the Third ITO came into being after contact between the justice and the affiant. The paragraphs explain why, in the affiant’s opinion, the warrant has to be executed at night. The ITO was submitted after 6:00 p.m.; the police were waiting for the warrant. These facts speak for themselves and the cross-examination of the affiant on this point is not likely to elicit any new information relevant to night time search precondition: see Criminal Code, s. 488.1.
(c) FAILURE TO DISCLOSE INVOLVEMENT IN FIRST ITO PREPARATION
[30] The applicant submits that cross-examination of the affiant is necessary to elicit an explanation as to why he failed to include in the Second and Third ITO that he was involved in the preparation of the First ITO. In the Third ITO the affiant disclosed that the First ITO was rejected. He detailed the reasons provided by the Justice of the Peace for the refusal. Under these circumstances, I find it is not reasonably likely that the cross-examination of the affiant may likely discredit a pre-condition for the issuance of the telewarrant, one of which is disclosure of prior applications: see Criminal Code, s. 487.1(4)(d).
(d) INADEQUATE EXPLANATION OF URGENCY
[31] In all the ITOs the affiant described that the police were conducting surveillance on the applicant in the ITOs. The affiant provides a description of 62 Sheldrake Court in Brampton; observations of persons outside the residence including the applicant; observations of the applicant working on a vehicle of interest, namely a black BMW; driving the black BMW away from and to the residence and expresses the opinion that overall surveillance confirms that the applicant owned a black BMW and lives at 62 Sheldrake Court in Brampton, Ontario.
[32] In the Third ITO, the affiant includes, for the first time, that surveillance revealed that the applicant was currently out of the residence, and in order “to prevent the loss of movement of evidence by other parties possibly within the residence the police will attempt to arrest the accused prior to execution of the warrant”.
[33] The applicant submits that within the context of the surveillance previously described, the affiant should have explained why the surveillance description inserted in the Third ITO created a need to execute the search warrant at night: see Criminal Code, s. 488.1.
[34] The applicant explains there is a reasonable likelihood that cross- examination will elicit testimony which may discredit the precondition to explain why a night time search was necessary. It is argued the cross-examination will shed light on why previous surveillance did not raise concerns of urgency but the most recent surveillance did.
[35] I find that the affiant explains that the surveillance is currently under way; police were waiting for the telewarrant; and there was a concern that evidence may be discarded. Accordingly, there is no reasonable likelihood that cross-examination of the affiant may likely yield evidence that will tend to discredit the precondition. Cross-examination to determine what the affiant may possibly say amounts to impermissible speculation short of the “reasonable likelihood” test.
CONFIDENTIAL INFORMANT #2
[36] In the ITOs the affiant identifies a Police Officer who received information from a Confidential Informant (“CI#1”). The affiant further explained that as a result of speaking to CI#1, further information was received from two additional Confidential Informants CI#2 and CI#3.
[37] The applicant submits that the affiant should be cross-examined on the steps taken by the police to corroborate the information provided by CI#1 which led to CI#2 and CI#3 as well as that taken to corroborate the information provided by CI#2 and CI#3.
[38] In the ITOs the affiant outlines steps taken to corroborate the information provided by the CI’s and why the CI’s were found to be reliable and credible.
[39] Those facts speak for themselves and allow a reviewing court to assess their sufficiency. Thus, there is no reasonable likelihood that cross-examination of the affiant on this point will elicit any further information that is likely to discredit the preconditions of corroboration and reliability of the confidential information provided.
[40] The affiant included information about CI#2 in the first version of the ITO. This first attempt at obtaining a telewarrant was rejected. The judicial reasons provided for the rejection were that the name of the police officer providing the information was not disclosed; the words “personal benefit” in relation to the confidential informant should be defined; and there was insufficient information to assess the credibility of the confidential informants.
[41] After receiving this response the affiant prepared two further ITOs and explained that he was not relying on information provided by CI#2. The applicant submits that the affiant must be cross-examined to explain why he included information about CI#2 when he did not intend to rely on it. It is submitted it was unfair for the officer to include information about a confidential informant he did not intend to rely on.
[42] While this is an interesting line of inquiry, the applicant has failed to explain why there is a reasonable likelihood that cross-examination of the affiant is likely to discredit a pre-condition for issuing the telewarrant. When the ITO is reviewed as a whole, it is clear that information received from CI#1 resulted in further information being received from CI#2 and CI#3. Further, as part of full and frank disclosure it was prudent for the affiant to disclose the existence and nature of information received from CI#2 and CI#3. Failure to include this information could be interpreted as a failure to make full and frank disclosure.
[43] Therefore, the applicant has failed to demonstrate that the cross- examination of the affiant on why he included information received from CI#2 would likely elicit information tending to discredit a pre-condition for issuing the authorization.
ITEMS TO BE SEARCHED FOR
[44] Section 487.1(4) requires the affiant’s ITO to include a statement about the place to be searched and items to be seized and to provide a reason why he believes that the items sought will be found in the premises to be searched.
[45] The applicant submits that the affiant should be cross-examined to explain why the ITO did not list marijuana and a shot gun even though the CIs indicated that the applicant carried a shot gun and sold marijuana.
[46] The ITO identified the items to be searched for at 62 Sheldrake Court, Brampton, Ontario, as firearms and ammunition; it is within the context of these items to be searched for that the ITO was prepared and reviewed. It would be interesting to find out why the police exercised their discretion not to include the items described by the applicant; however, the applicant has failed to demonstrate that there is a reasonable likelihood that testimony to be elicited from the affiant is relevant to a precondition for issuing the authorization.
[47] The ITO is reviewed in the context of the sufficiency of the reasonable and probable grounds to search for the items listed. Therefore, I am not satisfied that cross-examination of the affiant, on why he did not list other items the police were not seeking an authorization to search for, will raise a reasonable likelihood to discredit one of the preconditions for issuing the authorization.
FAILURE TO INDICATE ACQUITTAL
[48] The applicant submits that the failure of the affiant to clarify that the applicant had been previously acquitted of robbery where a gun was used is misleading.
[49] The affiant states in a previous ITO that the applicant’s robbery charges were “dismissed”. He then states that CI#1 had seen the applicant with a gun recently but it is unknown whether that gun was in fact the same gun that had been the subject of the robbery charges.
[50] The affiant explains what happened to the previous robbery charges; describes a possible previous link between the applicant and a gun; and provides information to describe the strength of the link between the affiant and the gun. An interpretation of that paragraph is that without the observations of the CI#1 there is no credible link to the gun. The use of the word “dismissed” instead of “acquitted” is not misleading in the context of the paragraph, and the ITO as a whole. The applicant has failed to demonstrate that there is a reasonable likelihood that the evidence elicited by cross-examination on this point will tend to discredit any of the pre-conditions for issuing the telewarrant.
WHEN DID THE AFFIANT KNOW THE NAME TRISTAN THOMAS?
[51] In the ITO under the heading background to the investigation, the affiant describes information from the CIs that Tristan Thomas is a drug dealer in possession of multiple firearms that are currently in 62 Sheldrake Court.
[52] Under the same heading, the affiant states that Tristan Thomas is a mid-level marijuana dealer who operates a BMW for the purpose of selling marijuana and is often armed with a hand gun. The applicant submits that, based on the testimony provided at the preliminary inquiry, it will appear that there is no way the affiant could have known the name Tristan Thomas prior to April 30, 2011.
[53] In addition, it is not accurate for the affiant to describe Mr. Tristan Thomas as having multiple weapon firearms.
[54] The affiant also describes Mr. Tristan Thomas as a person with a violent criminal history, which it would appear, is not supported by the information provided by the CI or in possession of the police.
[55] These are matters relevant to the credibility of the affiant and to the duty to provide full and frank disclosure of the grounds relied on to obtain the authorization. There is a reasonable likelihood that the testimony elicited in these areas may discredit a precondition for granting the authorization.
[56] Therefore, the applicant is permitted to cross-examine the affiant to determine:
(a) When the affiant / sub-affiant learned of the name Tristan Thomas in relation to the preparation of the ITO;
(b) Why the affiant described the applicant as having a violent criminal history; and
(c) Why the affiant described the applicant as being in possession of multiple firearms.
FAILURE TO DISCLOSE THE FORD EXPLORER
[57] The applicant submits that surveillance checks revealed the he was also linked to a Ford Explorer, and the failure to disclose this in the ITO overly bolstered the CI’s credibility in regards to CI information linking the applicant to a black BMW.
[58] The affiant referred to police surveillance linking the applicant to a black BMW. Within that context, it would appear that the affiant had provided a reason he believed that the CI’s link of the applicant to a black BMW was confirmed, rendering reference to the Ford Explorer unnecessary.
[59] However, given the importance of assessing the credibility of the CI and the need for full and frank disclosure by the affiant, this information has some relevance to the assessment of the CI’s credibility. Therefore, the Garafoli and Pires and Lising test is satisfied and the affiant may be cross-examined on why information on the Ford Explorer was omitted.
FAILURE TO CHECK ON OTHER ADDRESSES
[60] The CIs linked the applicant to the Sheldrake Court address, and the police conducted surveillance to link the applicant to the Sheldrake Court address. The police sought a telewarrant to search the Sheldrake Court address.
[61] The applicant wishes to cross-examine the affiant on why the police failed to check other addresses they had, and why they failed to disclose this in the ITO.
[62] The information provided was in relation to Sheldrake Court, the investigation conducted to confirm was in relation to Sheldrake Court, and applying the Garafoli and Pires and Lising test, this area of cross-examination is simply not relevant.
FAILURE TO REPORT THAT NO TRAFFICKING OBSERVED
[63] The applicant submits that the affiant should explain why he failed to report that police observations of Sheldrake Court did not include any observations consistent with trafficking. This is a red herring and the absence of any mention of actions consistent with trafficking is obvious by its absence. It is not misleading. There is no obligation, on these facts, to report that which is not seen.
URGENCY AND SURVEILLANCE
[64] The Applicant submits that police conducted surveillance on 62 Sheldrake Court on April 29, 2011 and April 30, 2011 and there was no suspicious activity observed and surveillance done only twice is insufficient to corroborate the information received from the CI’s. The applicant seeks to cross examine the affiant on what steps were taking to corroborate the information provided by the CIs and why it suddenly became necessary to search the residence.
[65] In the Third ITO the affiant explains that the affiant is currently under surveillance while the police wait for the warrant. He expresses the police’s desire to arrest the applicant prior to the search in order to avoid the potential for destruction or concealment of evidence at the home. The timing of the surveillance; the reason why this surveillance is different from the others i.e. it is being conducted in anticipation of the imminent arrest of the applicant; and the execution of a warrant is all set out in the ITO.
[66] Under these circumstances the applicant has failed to meet the test set out in Pires and Lising.
SEARCHING THE PREMISES AFTER APPLICANT ARRESTED
[67] The applicant submits that the CIs said the applicant always had a hand gun on his person, and within that context it is submitted that the affiant should be cross-examined to explain why it was still necessary to search the house.
[68] While the reason for this may be quite obvious from reading the entirety of the ITO, I have already noted the concern with the basis for the affiant’s description of the applicant as being in possession of multiple weapons. Therefore, I conclude that the Pires and Lising test has been met and the applicant is permitted to cross-examine the affiant on the basis for concluding that there were still guns in the premises after the arrest of the applicant.
[69] After considering the documentary evidence tendered and hearing the submissions of counsel The applicant is granted leave to cross-examine the affiant in these areas:
(a) The applicant is granted leave to cross-examine the affiant and leave shall be restricted to these areas:
(i) When did the affiant and sub-affiant learn of the name Tristan Thomas?
(ii) Why did the affiant describe the applicant as having a violent criminal record?
(iii) Why did the affiant describe the applicant as being in possession of multiple firearms?
(iv) Why did the affiant not disclose that the applicant had also been linked to a Ford Explorer vehicle?
(v) Why did the affiant still believe/request an authorization to search 62 Sheldrake Court, Brampton when the applicant was outside the residence and could be arrested? This is permitted in the context of CI information that the firearm would be on the applicant’s person.
Barnes, J.
Released: October 07, 2014
COURT FILE NO.: CR-12-2572-00
DATE: 2014-10-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E N:
HER MAJESTY THE QUEEN
Respondent
- and –
TRISTAN THOMAS
Applicant
REASONS FOR JUDGMENT
Barnes, J.
Released: October 07, 2014