ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v Podurgeil, 2015 ONSC 54
COURT FILE NO.: CR-14-0013-MO
DATE: 2015-01-05
B E T W E E N:
Her Majesty The Queen,
Kevin Matthews, for the Respondent
Respondent
- and -
Ronald Podurgeil,
Michael A. Hargadon, for the Applicant
Applicant
HEARD: October 23, 2014,
at Thunder Bay, Ontario
Fitzpatrick J.
Reasons On Application Seeking Leave to Cross-Examine
[1] Prior to the commencement of trial, the Applicant sought leave to cross-examine an affiant, D/Sgt Brad Duce of the Nishnawbe-Aski Police Service (NAPS), on an Information to Obtain a Search Warrant (“ITO”) sworn May 15, 2012, during the trial of this matter. I denied the application and indicated written reasons would follow. These are the reasons for my decision.
[2] During the course of argument on the application, the Applicant submitted that D/Sgt. Duce failed to provide sufficient information in his affidavit on the ITO so as to permit the issuing justice to make an independent assessment of the cogency, trustworthiness, and reliability of informant information. The Applicant argued D/Sgt Duce failed in his obligation to provide full, frank, and fair disclosure. Also, the applicant submitted D/Sgt. Duce failed in his obligation to engage in a fulsome credibility and reliability assessment of the informant information provided to him by D/C Dan Bartol, the ITO sub-affiant, thus undermining the requirement of full, frank, and fair disclosure.
[3] The Applicant identified four specific areas upon which he sought to cross-examination D/Sgt Duce namely;
a) NAPS procedure in drafting search warrant authorizations;
b) The statutory and constitutional obligations of search warrant affiants, including the requirement that an affiant provide full, frank, and fair disclosure;
c) What he knew of the Applicant at the time he drafted the ITO, and what information he included in it; and,
d) How the affiant assessed the credibility and reliability of informant information, specifically the content of conversations he had with D/C Bartol, the true handler of the informants.
[4] The Applicant expressly agreed that no information would be sought on cross-examination that would tend to identify the two confidential informants relied upon in the ITO.
[5] The Applicant submitted that the proposed cross-examination would uncover how, in consultation with D/C Bartol, D/Sgt Duce assessed the credibility and reliability of the informants and the procedure he followed in drafting the authorization. The Applicant argued D/Sgt Duce breached the obligation of full, frank, and fair disclosure, and characterized the informants as entirely credible and trustworthy without sufficiently examining their past performance to make that assertion thereby depriving the issuing justice of the opportunity to act judicially.
[6] The Applicant acknowledged that there is no right to cross-examine. It is a discretionary decision. Counsel further acknowledged that the onus to establish a basis for such cross-examination lay on the Applicant. The Applicant relied primarily on the decision of R v. Garofoli 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 as the basis for granting the relief requested on the Application.
[7] The Crown argued that the Applicant had not met the onus of establishing that cross-examination on the narrow issues presented would provide a reasonable likelihood that the Court would be assisted in determining a material issue. The Crown argued within the four squares of the affidavit of D/Sgt Duce were contained reasonable and probable grounds that an offence was committed by the Applicant in his home and that there was investigative necessity demonstrated to permit a search. It was submitted there was no reason to believe that cross-examination would elicit testimony tending to discredit one of the pre-conditions to the issuance of the search warrants. The Crown argued that the cross-examination contemplated in this application would be a waste of the Court’s time.
The Law
[8] Within the past year, the Ontario Court of Appeal in R. v. Sadikov, 2014 ONCA 72, 314 O.A.C. 357, succinctly summarized the applicable principles governing the granting of leave to cross-examine an affiant of an ITO in cases such as the one before the Court. Justice Watt writing for the panel stated at paras. 39 and 40:
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.
[9] 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.
[10] In R. v. Nguyen, 2011 ONCA 465, 281 O.A.C. 118, the Ontario Court of Appeal considered at length the concept of “materiality” in the context of a Garofoli review. The Court acknowledged at paragraph 48 that it was trite that an applicant for a search warrant has a duty to make full, frank, and fair disclosure of all material facts, which includes the duty not to omit material facts. The Court adopted the Supreme Court’s statements in Pires, that the existence of materially misleading statements or omissions in an ITO do not “necessarily detract from the existence of the statutory pre-conditions” for the issuance of the search warrant. At paragraph 51, the Court stated:
There is no obligation on applicants to anticipate, and to explain away in advance, every conceivable indicia of crime that they did not see or sense and every conceivable investigative step they did not take at the time in order to counter the creative arguments of able defence counsel on a review hearing many months or years after the event.
[11] Overstatement by an affiant of an ITO, in and of itself, is not a sufficient basis to grant leave to cross-examine the affiant. To support an application to cross-examine an affiant, the overstatement, like misleading statements or omissions, must go to the evidentiary foundations of the application for the warrant – the essence of the case: See Pires at para. 68.
Discussion
[12] This matter was somewhat unique as the Applicant was already able to cross-examine D/Sgt Duce at the preliminary hearing on issues which touched on matters for which he sought leave to cross-examine at trial. Portions of that preliminary transcript were placed before this Court. Also, the Applicant freely admitted that the search arising from the ITO led to the police seizing a quantity of marijuana in the Applicant’s home. However, it was the items that were not recovered, which lead the Applicant to assert that the information from confidential informants set out in D/Sgt Duce’s affidavit was clearly wrong. Therefore, the Applicant’s argument went that the informants could not be said to have been “proven reliable”, leading to a conclusion that full, frank, and fair disclosure was not given to the issuing Justice.
[13] In the ITO D/Sgt Duce deposed, based on information obtained from the confidential informants, that the Applicant was a major drug dealer in the Nakina area and was supplying marijuana, oxycontin and morphine. The search did not locate any of the following items that would be expected to be located in the home of a major drug dealer:
a) Baggies, tin foil, pill bottles, or other “primary containers used to store, preserve, or conceal” controlled substances;
b) Dispensing equipment such as “weighing devices, grinders, pill cutters, measuring devices,” and so forth;
c) Quantities of currency consistent with trafficking in drugs;
d) Cell phones, pagers, scanners, and the like “that are commonly used by traffickers of controlled substances to further their trade”;
e) Debt lists; or
f) Any quantity of oxycontin, hydromorphone, or other opiate narcotics, or any evidence that the Applicant had ever been in possession of these items.
In argument, counsel for the Applicant quantified the degree of accuracy of the confidential informants as being “charitably 90% incorrect”. While I do not accept that particular assertion, it is clear that only one of the three types of drugs the Applicant was allegedly dealing was found in the Applicant’s home. This was among the reasons the Crown has since dropped the trafficking charge against the Applicant.
[14] However, even if I accept the assertion that the majority of the information from the confidential informants was incorrect, the issue before me was whether cross-examination was necessary to elicit testimony that would tend to discredit the existence of a pre-condition to the issuance of the warrant.
[15] The fact is the search did lead to a seizure of a quantity of illegal drugs. The information of the confidential informants did not go to the issue of investigative necessity. In my view, the ITO contained full, fair, and frank disclosure of facts material to the statutory tests, that is to say, it did disclose reasonable and probable grounds that an offence was or was to be committed and was there an investigative necessity disclosed which would authorize the search. I do not accept that the failure of the officer to elaborate on the degree to which the confidential informants had “proven reliable” in the past, took away from the fact that the information did lead the police to conduct a search of a premises where illegal drugs were indeed found. There was a basis for the issuing justice of the peace to be satisfied that the relevant statutory preconditions existed.
[16] I found that there was sufficient information in the ITO, as a whole, that the Applicant could not succeed in demonstrating that the issuing justice was deprived of the opportunity to act judicially by this alleged deficiency in the ITO. In my view, further cross examination would have been a waste of the Court’s time and would not impact on the accused right to make full answer and defence. The Applicant remained free to elicit evidence on whether the warrant and the method of execution of the warrant constituted an unreasonable search and seizure within the meaning of section 8 of the Charter.
[17] The application was accordingly dismissed.
___”original signed by”
Mr. Justice F. B. Fitzpatrick
Released: January 5, 2015
CITATION: R. v Podurgeil, 2015 ONSC 54
COURT FILE NO.: CR-14-0013-MO
DATE: 2015-01-05
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent
- and -
Ronald Podurgeil,
Applicant
REASONS ON APPLICATION SEEKING LEAVE TO CROSS-EXAMINE
Fitzpatrick J.
Released: January 5, 2015
/mls