ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 7562/15
DATE: 2015-07-10
BETWEEN:
HER MAJESTY THE QUEEN
– and –
WILLIAM LAWRENCE FLEMING
Applicant
M. Jones for the Crown
T.P. Waltenbury, for the Applicant
HEARD: June 29, 2015
REASONS ON APPLICATION FOR LEAVE
TO CROSS-EXAMINE THE AFFIANT OF THE I.T.O.
A.D. KURKE, J.
[1] The Applicant is charged with five counts of trafficking cocaine, and four counts of Possessing Property Obtained by Crime. Evidence for the charges before the Court derives from interactions between a police agent and the Applicant that were recorded by police pursuant to a Part VI consent Authorization.
[2] The Applicant applies for leave to cross-examine Cst. Richard Crema of the Sault Ste. Marie Police Service, the affiant of the Information to Obtain (ITO) that resulted in the Authorization, for use on an intended Garofoli application.
Background
[3] The Authorization to intercept interactions between the Applicant and police agent Denis Bruyere was developed and obtained as part of the Sault Ste. Marie Police Service’s “Project Cooper”, which focused on the Applicant as a police target. Cst. Crema drafted the ITO that led to the Authorization being granted on March 31, 2014.
[4] A preliminary inquiry into this matter was held over five days, resulting in the Applicant’s committal to trial in the Superior Court of Justice on February 18, 2015. Pursuant to a Dawson application at the preliminary inquiry, Cst. Crema has already been subject to cross-examination in areas permitted by the presiding judge in the Ontario Court of Justice.
[5] Bruyere testified at the preliminary inquiry, and offered further evidence about his personal issues and conduct pre- and post-Authorization, among other things.
[6] It is the position of the Applicant that Bruyere presented with such reliability issues that the police failed 1) in their duties to investigate him properly themselves before relying on his evidence; 2) in not seeking corroboration for his claims; and 3) in not presenting his reliability issues fully, fairly, and frankly to the authorizing judge.
[7] The Applicant asserts that reliability concerns with respect to the police agent, coupled with these police failures, detract from the reasonableness of the grounds offered in the ITO, resulting in a breach of the Applicant’s Charter rights. The Applicant seeks the opportunity to cross-examine Cst. Crema again, in order to develop evidence for the attack on the Authorization.
The legal framework
[8] Leave to cross-examine the affiant of an ITO may be granted where it is necessary to enable an accused to make full answer and defence. The guiding question of an application for leave to cross-examine must be on the central focus of the Garofoli review itself: is there a basis upon which the authorizing judge could grant the order?: R. v. Pires, R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 40.
[9] Therefore, the applicant for this relief must show a reasonable likelihood that cross-examination of the affiant will assist the court by eliciting evidence tending to discredit one of the preconditions to the authorization, such as reasonable and probable grounds: R. v. Garofoli, 1990, [1990] 2 S.C.R. 1421, at paras. 88-89; R. v. Pires, R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 25-32, 40.
[10] Cross-examination that can only show that some of the information relied upon by the affiant is false is likely to be insufficient. Rather, to be useful, the cross-examination should produce evidence to also support an inference that the affiant knew or ought to have known that the evidence relied upon was false: R. v. Garofoli, 1990, [1990] 2 S.C.R. 1421, at para 90; R. v. Pires, R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 40-41, 69.
[11] Thus, speculative hope that something might turn up through cross-examination will not suffice: R. v. Washington (1997), 1997, 104 O.A.C. 210 (C.A.), at para. 11; R. v. Bouchard, 2013 ONCA 229, at para. 2.
[12] Arguments based on minor issues may well not suffice to permit cross-examination. Slight exaggerations by the affiant, or nuanced opinions about the weight of evidence where counsel for the accused might have views about evidence that differ from the reasonable views of the affiant may not suffice to allow cross-examination: R. v. Pires, R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 68.
[13] Moreover, as the focus is properly on what was available to the authorizing judge, an affiant is entitled to rely on apparently credible information, even if it is discovered to be false after the issuance of the authorization. Even if the grounds relied upon for the authorization prove to be false on further investigation, “[t]hat fact does not retroactively invalidate what was an otherwise valid authorization”: R. v. Pires, R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 41; R. v. Brown, 2013 ONSC 2528, at para. 9.
[14] The question of whether there is actually a need for cross-examination must take into account the reality of disclosure in the post-Stinchcombe world. Cross-examination of the affiant may add nothing to what is already known from other sources, including the evidence of witnesses at preliminary inquiry, and the contents of the investigative file: R. v. Garofoli, 1990, [1990] 2 S.C.R. 1421, at para. 84; R. v. Pires, R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 26-27.
The circumstances of this case
[15] In the discussion that follows, I refer to the Applicant’s arguments according to the lettering in his Factum, at paragraph 15. By inadvertence, the Applicant repeated the letters “d” “e” and “f” in his list of proposed points justifying cross-examination. With those duplications, the Applicant’s list runs from “a” to “q”.
Minor issues that do not justify cross-examination
[16] Several arguments raised by the Applicant relate to aspects of information in the ITO that the Applicant believes were unfairly or incompletely cast, and which could have been misleading to the authorizing judge. In my respectful view, these issues relate to matters of perspective. The fact that someone else might have drafted the ITO differently or with different emphases, does not invalidate Cst. Crema’s work:
a. The Applicant submits that the authorizing judge would be misled by the ITO’s claim (page 13, paragraph 10) that Bruyere was “cultivated” from informer to agent, when this was not the case. In fact, at page 13, paragraph 10 ff., the ITO explains Bruyere’s background as informer, his eagerness to provide information against the Applicant, and his willingness to transition to police agent for financial consideration. The authorizing judge can have been under no illusion that “cultivation” here meant tending a plant that was quite ready to bloom. Disagreement over the choice of the word “cultivated” does not justify cross-examination of the affiant.
b. The Applicant submits that the ITO should have made clear that “the drug unit didn’t even know who [Bruyere] was until January 10, 2014” (para. 15b). Nothing in the ITO claims otherwise. In fact, page 13, para. 10 of the ITO of March 24, 2014 indicates that Bruyere was “cultivated” “over the past few months”. Cross-examination on this issue will not develop evidence capable of affecting the grounds in the ITO.
c. The Applicant submits that the ITO should have been clearer that “Bruyere was the one that approached police with a plan for him to act as a police agent to try to buy drugs from Mr. Fleming” (para. 15c). The ITO states that Bruyere provided information about Fleming to police prior to the development of his role as agent. Whose was the initial approach to the subject of agency is not relevant to the existence of reasonable and probable grounds, particularly once Bruyere’s financial interest has already been set out so clearly in the ITO.
d. Likewise, it is argued that it should have been highlighted that “Bruyere wanted financial compensation in exchange for” acting as an agent (para. 15d). Bruyere’s financial interest was made plain to the authorizing judge in paras. 10, 13, and 15, and 24 of the ITO. Cross-examination on this point, while it may yield further details, would not affect the issuance of the Authorization.
e. Similarly, it is submitted that it should have been made more clear that “the police had provided [Bruyere] with financial compensation in relation to the Fleming investigation even before Cst. Crema swore” the ITO which claimed Bruyere’s altruism as motivation for his participation (para. 15e). In fact, in para. 15, on page 15 of the ITO, altruism is secondary to financial assistance as Bruyere’s motivation. As indicated, the authorizing justice was clearly advised about Bruyere’s financial interest in “Project Cooper”. The police “Service Provider’s Contract” with Bruyere, which has been disclosed to the defence, can be put into evidence at the Garofoli hearing to make this point, if more evidence is needed. Cross-examination of Cst. Crema is not justified.
f. Bruyere “omitted some of his prior convictions and charges when explaining his background to the police” (para. 15d – the second time in the Applicant’s list). The ITO includes at Appendix “D” the full criminal record and an indication of outstanding charges for the authorizing judge. The summary of Bruyere’s March 24, 2014 interview at ITO p. 18, para. 19b sets out Bruyere’s discussion of an outstanding charge in February 2014 that had concluded with a peace bond, and which had not been mentioned in the initial police interviews, and on which there was cross-examination of Cst. Crema at the preliminary inquiry. No cross-examination is warranted on this point, as nothing would develop to subvert the grounds in the ITO.
g. Contrary to direction from a police handler not to do anything until instructed to do so by police, Bruyere contacted the Applicant and set up a meeting for March 26, 2014, at which the purchase of cocaine was discussed. Accordingly, this first meeting could not be recorded, as the recording body pack had not yet been provided to Bruyere (para. 15p). This meeting between Bruyere and the Applicant, about which Cst. Crema learned from “debriefing notes” of Detective Sergeant Chiapetta on March 27, 2014, was set out for the authorizing judge in the ITO at page 18, para. 20. The fact that the meeting was not authorized by police does not merit cross-examination of Cst. Crema.
h. The Applicant complains that police did not check with the Ottawa Police Service for information about Bruyere’s credibility and reliability, even though Bruyere had spent most of his life there, and accumulated most of his criminal record there (para. 15q). The authorizing judge already had sufficient data to work from about Bruyere’s background without input from the Ottawa police. Whatever the Ottawa police have to say is, in any event, either a matter of speculation, or can be proffered at the Garofoli application if it has been the subject of disclosure.
Conduct of Bruyere after the granting of the Authorization
[17] The bulk of the Applicant’s proposed areas of cross-examination relates to testimony teased from Bruyere at the preliminary inquiry into this matter. The Applicant suggests that this further evidence could and should have been known by police at the time of the drafting of the ITO, and that police failure to investigate Bruyere properly or corroborate his account, represents, in essence, wilful blindness on their part that should invalidate the ITO.
[18] However, police cannot be held to a standard of prescience in the drafting of an ITO. In general, the ITO sets out very clearly the kind of person that Bruyere was, and the personal issues that beset him. In what follows, the arguments are again summarized from paragraph 15 of the Applicant’s Factum:
a. “[A]s time went on Mr. Bruyere was requesting more financial compensation” (para. 15f). While this may be relevant on the trial, Bruyere’s post-Authorization conduct is not relevant to an assessment of the grounds existing at the time of the Authorization.
b. Bruyere struggled with addiction issues and used marijuana during the execution of the Authorization (para. 15e – the second time in the Applicant’s list). Bruyere testified at the preliminary inquiry that he used marijuana during the investigation, but did not tell police that he was doing so. Even if the police should have been aware of this, which I specifically do not find, Bruyere’s marijuana use during the course of the investigation postdates the Authorization, and is not relevant to its issuance.
c. Bruyere “had an extensive gambling problem and was losing more money gambling during the course of this investigation than he was taking in” (para. 15f – the second time in the Applicant’s list). Once again, Bruyere’s gambling issue post-Authorization has no bearing on the issuance of the Authorization.
d. Bruyere was selling rented electronic equipment as if he owned it, at rock bottom prices (para. 15g). This issue apparently arose post-Authorization and has no bearing on the issuance of the Authorization.
e. While in an interview with police which was summarized into the ITO at page 15, para. 17, Bruyere claimed to have known the Applicant for three years. However, that time period decreased to a year and a half at the preliminary inquiry. The preliminary inquiry long post-dated the Authorization; Cst. Crema was not aware of Bruyere’s testimony at the preliminary inquiry when he drafted the ITO. Cross-examination is not justified on that point.
f. At the preliminary inquiry, Bruyere indicated that he had no “relationship of trust” with the Applicant (para. 15i). This is said to contradict a statement summarized into the ITO from an interview with police on February 11, 2014, where Bruyere stated: that “he can go to [the Applicant] and buy drugs from [him] because [he] trusts Bruyere (ITO, p. 16, para. 17h). An exploration of this “inconsistency” by cross-examination, even if it can be called an inconsistency, and even if Cst. Crema could have anticipated Bruyere’s testimony, could have no effect on the issuance of the Authorization.
g. In his testimony at the preliminary inquiry, Bruyere limited his pre-Authorization knowledge of the Applicant to offering greetings at occasional NA or AA meetings, and seeing him at the home of a mutual friend once or twice (para. 15j). This information came from Bruyere at the preliminary inquiry, and was not known to Cst. Crema at the time of the ITO. Certainly, the officer seems not to have enhanced the extent of the contact between Bruyere and the Applicant in the ITO. Cross-examination is not justified on this point.
h. Bruyere had never seen the Applicant with drugs or money (para. 15k). Concerning drugs, this is, in fact, consistent with the ITO (ITO, p. 16, para. 17d). While in his statement to police, summarized at ITO, p. 16, para. 17n, Bruyere claims to have seen the Applicant with money, his denial of seeing the Applicant with money derives from the preliminary inquiry, and was not available to Cst. Crema at the time of the drafting of the ITO.
i. The Applicant complains that Bruyere asserted at the preliminary inquiry that his only information about the Applicant’s drug dealing comes from a conversation with Kevin Robinson shortly before Christmas 2013, in which Robinson told Bruyere that he dealt drugs, and the Applicant was his supplier (para. 15l).
Certainly, in his statements to police, Bruyere appears to have more knowledge of ongoing transactions between the Applicant and Robinson. However, the questioning at the preliminary inquiry related to how Bruyere found out that the Applicant was dealing drugs, and not apparently what further information he had about that topic. And again, the evidence at the preliminary inquiry long postdates the ITO.
j. “[A]t the time of this supposed discussion with Mr. Robinson, Mr. Bruyere was under the influence of marihuana” (para. 15m). This again is evidence that derives from the preliminary inquiry, and was not known by Cst. Crema at the time of the ITO. The issue can be further explored with Bruyere on the trial of the matter.
k. At the preliminary inquiry, Bruyere was asked when he advised the Applicant’s drug colleague Joshua Fogg about Robinson’s claims that the Applicant dealt drugs (para. 15n).
In his statements to police, Bruyere had claimed that he went to Fogg, who used to be his boss at the gold mine, and gave him this information, and Fogg told him “thanks we’ll take care of it”. At the preliminary inquiry, Bruyere testified that “I think” this discussion with Fogg took place while he was at work at Detour Gold, a job he last held in October 2013. The Applicant points out that this plays havoc with Bruyere’s claim that he learned of the Applicant’s drug dealing from Robinson only in December 2013.
Leaving aside the fact that Bruyere’s answer as to the time of his discussion with Fogg was qualified by the introductory words “I think”, Bruyere’s testimony at the preliminary inquiry long post-dated the ITO.
l. Bruyere acted contrary to direction from his police handlers by contacting the Applicant without advising police that he was going to do so, or had done so (para. 15o). Again, this was information from the preliminary inquiry, of which police were unaware at the time of the ITO.
[19] I find no reasonable likelihood that cross-examination of Cst. Crema on any of the issues raised in paragraph 15 of the Applicant’s factum will elicit evidence tending to discredit any pre-conditions of the Authorization in this case.
[20] Accordingly, leave to cross-examine Cst. Crema for the purpose of the Garofoli application is denied.
A.D. KURKE J.
Released: 2015-07-10
COURT FILE NO.: 7562/15
DATE: 2015-07-10
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
WILLIAM LAWRENCE FLEMING
Applicant
REASONS ON APPLICATION
Justice A.D. Kurke
Released: July 10, 2015