ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-1590000494-0000
DATE: 20150915
BETWEEN:
HER MAJESTY THE QUEEN
– and –
INEZ GAYLE
Sam Siew, for the Crown
Christine Roth for the Defendant
HEARD: September 14, 2015
RELEASED: September 15, 2015
Allen J.
REASONS FOR JUDGMENT
(Application for Leave to Cross-Examine on a Search Warrant Affidavit)
BACKGROUND
Overview
[1] The accused Inez Gayle was arrested and charged with two counts of possession of cocaine for the purpose of trafficking and four counts of possession of proceeds obtained from crime.
[2] The charges arise from a police investigation of the Island Grill restaurant located at 119 River St. in Toronto. The police had received word from four individual confidential informants (“CIs”) and five Crime Stopper tips that various persons were trafficking drugs at this restaurant. A woman referred to variously as “Inez”, “Girly/Girlie” and “Gail” was identified as a person involved in the drug trafficking. The police later identified that person as Inez Gayle and also confirmed that Inez Gayle was the owner of the restaurant.
[3] Ms. Gayle is described in the warrant as a black female, black skin, 5′ 5″ tall, age 45, with glasses, short curly black hair, chubby [healthy] build.
[4] Four warrants were executed, one on the restaurant, one on Ms. Gayle’s home and one on each of two vehicles registered in her name, a gray Honda and a green Honda. The warrants were obtained and issued simultaneously on July 5, 2015 by Cavion, J. of the Ontario Court. They were executed on the same day, the warrant on the home being issued shortly before execution on the restaurant. Ms. Gayle was not at home at the time.
[5] At the Island Grill, the police located 12.46 grams of cocaine in the kitchen inside a false bottom container. At her home at 51 Butterworth Ave. in Scarborough the police located 122.95 grams of cocaine inside a container with a false bottom. At the home, the police also found money amounting to $4,785 (CDN) and $285 (US), $5,070 when converted to Canadian currency. One of Ms. Gayle’s charges was for money found in the gray Honda. The Crown withdrew that charge at trial and the indictment was amended accordingly.
The Investigation
[6] The police conducted computer searches of police data bases and obtained information related to Ms. Gayle, the other persons alleged to be involved in drug trafficking and information related to the restaurant. The Crime Stopper tips were also obtained from the data base searches.
[7] The police conducted surveillance on the restaurant and the home. On June 6, 2012 the police observed foot traffic in and out of the restaurant that was consistent with five drug transactions that were observed. At 8:35 a.m. on June 25, 2012, the police saw a female matching the description of Ms. Gayle enter a green Honda in the driveway of her home and drive away. The police followed the car to the restaurant which arrived at 8:55 a.m. which Ms. Gayle parked a short distance from the restaurant. The police observed the woman enter the restaurant. A further observation was made at the restaurant on July 5, 2012. The police observed that out 20 people they saw enter and exit the restaurant 15 people left the restaurant in less than a minute without any food.
[8] P.C. Amanda Annetts, one of the officers involved in the investigation, is the affiant on the warrants. She prepared the affidavit in the information to obtain (“the ITO”) based on information she received through her part in the investigation, from the Crime Stopper tips, and from other officers who received information from the CIs.
Use of Confidential Informants
The Law
[9] The law extends a special privilege to confidential informants. The privilege is based on the crucial role informants play in police investigations. Due to potential danger to a confidential informant the police and Crown have a positive obligation to protect the identity of a confidential informant: R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281 (S.C.C). The courts too must safeguard the privilege.
[10] Information in an information to obtain that could potentially identify the informant is redacted to protect the privilege. The ITO in the case at hand is redacted in several areas and the redaction is not substantial. The Crown prepared a summary of the redacted information which was provided to the defense and the court before the hearing. The court takes no issue with the redactions or the Crown’s summary, nor does the defence and, as such, there is no need to conduct a Garofoli Step 6 proceeding: R. v. Garofoli, 1990 52 (S.C.C.), (1990), 60 C.C.C. (3d) 161 (S.C.C.).
The Confidential Informants and Tipsters
[11] CI#1 was a registered informant who provided reliable information in the past. This source was used by the police previously and the information led to several arrests and convictions. CI#1 has no criminal record related to offences of obstruct justice, perjury or other crimes of deceit. The motivation for the information was monetary gain and this informant was warned of the consequences of providing false information and that compensation would only be forthcoming if the information is proven truthful.
[12] CI#2 and CI#3 were also registered informants who provided reliable information on one occasion. CI#2’s information led to the arrest of two people for drug trafficking and CI#3’s information led to a search warrant yielding drugs and money. CI#2 had no criminal record related to offences of obstruct justice, perjury or other crimes of deceit and CI#3 had one dated conviction for a crime of dishonesty. Both of these informants were also motivated by monetary gain and were warned of the consequences of providing false information and that no compensation would be given if the information was proven false.
[13] CI#4 was also a registered informant who provided information previously which was not corroborated. This source had no criminal record for offences of obstruct justice, perjury or other crimes of deceit. The motivation for the information was monetary gain and this informant was warned of the consequences of providing false information and that compensation would only be forthcoming if the information is proven truthful.
[14] The Crime Stopper tips were given on June 2012, November 2011, January 2011, November 2006 and October 2006. Three of the tips speak of drug dealing occurring at the restaurant. One tip implicates the female owner of the restaurant in the drug dealing but the source of that belief is not given. The female is not identified. Other tips speak of the drug dealers being Jamaican and mention a male on the premises. No descriptions are given of the persons mentioned.
Cross-Examination of the Affiant
The Law
[15] At the hearing the defence indicated the focus of her application was on the search warrant on the home. She provided no materials or submissions on the other target locations. The defence seeks leave to challenge the ITO by cross-examining Officer Annetts.
[16] Cross-examination of an affiant is not an automatic right. The defence must seek leave of the court and must demonstrate a basis for the cross-examination. R. v. Garofoli addresses the rationale for the leave requirement.
The granting of leave must be left to the exercise of the discretion of the trial judge. Leave should be granted when the trial judge is satisfied 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.
[17] Competing interests are engaged when considering whether to grant leave to cross-examine the affiant. The accused’s right to make full answer and defence has to be balanced against the obligation to protect the confidential informant. Caution must be exercised due to the possibility that unfettered cross-examination could risk inadvertently disclosing information that could identify the informant. While informer privilege is to be assiduously protected there must be sufficient information available in the information to obtain upon which the issuing court can assess the credibility and reliability of informants and the information provided: R. v. Debot 1989 13, at pp. 215-216, (S.C.C.).
[18] As with any ex parte application, a party seeking a search warrant has the obligation to make full, frank and fair disclosure to the court of material facts: [R. v. Araujo, [2000] S.C.R. 992, at para. 46, (S.C.C.)]. If leave is granted, the defence can test the extent to which there was full, frank and fair disclosure before the issuing judge.
[19] When allowed cross-examination should be limited by the review judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted R. v. Pires and Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 10, (S.C.C.). The burden is on the defence to establish a basis for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization, as for example, the existence of reasonable and probable grounds that the police would find evidence of the crime at the premises to be searched: R. v. Garofoli, at paras. 88-89.
[20] The statutory pre-conditions for obtaining a search warrant are found in s. 487(1) of the Criminal Code. To obtain the court’s authorization for a warrant to search the property of a person suspected of committing a criminal offence, the police must satisfy the issuing court there are reasonable grounds to believe there is in a building, receptacle or place,
• anything in which an offence has been committed or is suspected to have been committed, or
• anything there are reasonable grounds to believe will reveal the whereabouts of a person who is believed to have committed an offence.
[21] The test for leave is not onerous. The defence need not make out a prima facie case of fraud, misleading disclosure or material non-disclosure in an affidavit: [R. v. Garofoli, at pp. 83-84]. The defence’s obligation is limited to demonstrating “a reasonable likelihood that [the cross-examination] will assist the courts to determine a material issue …”: R. v. Pires and Lising, at para. 40
The Grounds on Which the Defence Seeks to Cross-Examine
Grounds on Which Leave Not Granted
[22] I have reviewed the grounds on which the defence seeks to cross-examine. For the following reasons, I find that all but one of the proposed grounds for cross-examination do not meet the test of establishing that cross-examination will tend to elicit evidence to discredit a ground for the issuance of the warrant.
[23] For the most part, I find the grounds on which the defence seeks to question are with respect to what she has styled as errors or flaws on the face of the ITO. They are not matters that go to the substance of discrediting that the police had reasonable grounds to believe drugs would be found or drug offences would be committed at the target places. Cross-examination along this line would not assist the courts task of assessing the credibility and reliability of informants and their information.
[24] The defence seeks to inquire in the following areas:
[25] At paragraph 6 (a) of her application for leave, the defence indicates a wish to cross-examine to ascertain whether the sources have personal knowledge of the defendant’s involvement in drug trafficking. The face of the warrant at paragraph 1(g) indicates CI#1 has first-hand experience and buys drugs from the restaurant and the Crown summary indicates CI#1 does this regularly. On CI#1 the warrant provides details on how the drugs are dealt and packaged.
[26] The information on CI#2, at paragraph 2 (e) of the warrant, and on CI#3 at paragraph 3 (f) of the warrant, indicates these informants also have first-hand experience buying drugs at the restaurant. The Crown’s summary indicates that CI#2 purchased from a woman. I agree with the Crown that there is no evidence of CI#1 buying drugs from the defendant and that the court will have to weigh this evidence in the context of all the evidence on the s. 8 application. However, I find the level of detail and the consistency among the CIs on some of their information distinguishes this information from mere rumour or gossip: R. v. Debot, 1986 113, at p. 5, (Ont. CA).
[27] I find cross-examination on this ground will not assist to undermine the police’s reasonable and probable grounds. Leave to cross-examine is not granted.
[28] In relation to the ground at paragraph 6 (a) of the leave application, the Crown concedes a weakness with respect to the information provided by CI#4 in that the warrant does not specify if CI#4’s information came from first-hand information or not. The Crown accepts as held in R. v. Riley that information where the source is unknown can be accepted as no more than mere gossip: [R. v. Riley, [2008] O.J. No. 4893, at para. 10, (Ont. S.C.J.)]. The strength or weakness of information on the face of the warrant speaks to the sufficiency of the warrant and is the proper subject matter for the s. 8 application. As R. v. Riley held, cross-examination on this type of information can do nothing to discredit the existence of one of the pre-conditions to the authorization.
[29] There is no basis for cross-examination on the ground the defence sets out in paragraph 6 (a) of her application. Leave to cross-examine is not granted.
[30] At paragraph 6 (b) of the leave application, the defence seeks to cross-examine on the fact that CI#2 did not provide a physical description for the female who deals drugs, which according to the defence, makes it unclear whether it was Ms. Gayle or another woman. This again is a concern that also goes to the sufficiency of the warrant. The Crown concedes the ambiguity of this information and the fact that Crime Stopper tip #2 also did not disclose a description of the female.
[31] There is no sound basis established for cross-examination. Cross-examination in this area will not elicit testimony that would discredit one of the pre-conditions for the issuance of the warrant. Leave to cross-examine is not granted.
[32] At paragraph 6 (c) of the leave application, the defence requests to cross-examine on the fact the police did not detail the nature of all six of Ms. Gayle’s contacts with the police as disclosed in the police data base. The warrant only specifies that in one contact Ms. Gayle was a victim and witness to an incident at the restaurant. The defence submits this is misleading as it leaves the suggestion that the other five contacts could involve criminality on Ms. Gayle’s part. The Crown makes two points on this proposed ground of cross-examination which I accept.
[33] The first point is when we consider if the issuing court might have been misled as the defence suggests, one must keep in mind that it was an Ontario Court judge who issued the warrant and that as a judge he would be familiar with language like “contact with the police” and would not infer the meaning suggested by the defence.
[34] The Crown’s second point has been expressed by other courts. This is regarding whether the omission of information, like the information on the other five police contacts, indicates a breach of the defence’s right to full and fair disclosure. For an omission to be impugned as a breach of full and fair disclosure it would have to be a material non-disclosure that goes to the substance of the application: R. v. Land (1990), 1990 10969 (ON SC), 55 C.C.C. (3d) 382, at p. 417, (Ont. H.C.J.). The Ontario Court of Appeal in R. v. Nguyen observed:
There is no obligation on the warrant applicant to anticipate, and to explain away in advance, 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.
R. v. Nguyen, 2011 ONCA 465, at para. 51, (Ont. C.A.)
[35] The omission of the information is not a material non-disclosure and thus the intent of the omission was not to mislead the issuing court on a material fact. Cross-examination on this ground would not elicit testimony directed at discrediting a pre-condition for the issuance of the warrant. Leave to cross-examine is not granted.
[36] The same principle applies to a request to cross-examine on another ground that the defence raised at the hearing. The defence indicated she proposed to cross-examine the affiant on the information in the warrant about the 133 entries found in the police data base that reference the restaurant. The warrant only mentions some of the entries and those entries refer to two other alleged drug dealers known to frequent the restaurant, but does not mention Ms. Gayle. The defence submits leaving out information on Ms. Gayle is misleading.
[37] I agree with the Crown that various inferences might be drawn from the omission: that Ms. Gayle is not mentioned in the 133 entries; she is mentioned but there is no criminality implied; or there is information that is inconsequential to the warrant application. As R. v. Nguyen held:
In most cases, the absence of a reference to something not seen, not heard, or not done, will lead to the sensible inference that whatever it is was not seen, not heard, or not done.
[R. v. Nuygen, at para. 50]
[38] I cannot see how cross-examination on the omission with respect to the 133 entries about the restaurant will elicit testimony that would tend to discredit one of the pre-conditions to the authorization. Again, the intention of omitting this evidence was not to mislead the issuing court on a material fact. Leave to cross-examine is not granted.
[39] At paragraph 7 of the leave application, the defence seeks to cross-examine the affiant very broadly to “canvass the reliability of various confidential sources.”
[40] First, the warrant contains considerable information going to the reliability of the warrants. There is nothing preventing the defence from raising arguments on the s. 8 application on the sufficiency of information establishing reliability.
[41] The other concern here is that this broad type of inquiry runs counter to the defendant’s obligation to specify the basis for their view that the cross-examination will elicit testimony tending to discredit a pre-condition. An ill-defined, wide ranging inquiry cannot satisfy this test and cannot be allowed. Moreover, questions along those vague lines run the risk of violating informer privilege by eliciting sensitive information even inadvertently that could identify the CIs. Courts have warned that cross-examination is not an opportunity for the defence to go on a fishing expedition for information to help with its attack on the warrant: [R. v. Washington (1997), O.A.C. 210, at para. 11, (Ont. C.A.)]
[42] I conclude the defence has not met its burden on the grounds proposed for cross-examination to establish a reasonable likelihood that cross-examination will assist the court to determine a material issue. The defence has failed to show the court that cross-examination on those grounds will tend to elicit testimony that will discredit the grounds for the issue of the warrant.
A Ground Where Leave to Cross-Examine is Granted
[43] At paragraphs 6 (d) and (e) of the leave application the defence proposes to cross-examine the affiant on the following opinion she expressed in the affidavit:
It is well known and found to be true in many of the drug investigations I have taken part in, that drug traffickers will divide their assets of drugs, money and other items associated with their trade, at various locations in order to minimize their losses if they are arrested or a search warrant is executed on one of their addresses, or further to downgrade their involvement.
[44] This opinion evidence is critical as it purports to establish a pre-condition for the search warrant on the home, that there is a nexus between the commission of the offence of drug trafficking at the restaurant and Ms. Gayle’s home and provides the basis of her belief contraband would be found at the home. In this regard, it is also important to keep in mind that a warrant on a private residence is subject to extra scrutiny as incursions on the private domain of a person’s life are considered more serious intrusions than interferences in less private spheres: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 76, (S.C.C.); and R. v. Debot, at p. 17, (S.C.C.).
[45] As noted earlier, pursuant to s.487 (1) of the Criminal Code, the warrant must satisfy the issuing court there are reasonable grounds to believe that in a premises or place there is something that indicates an offence has been committed or something that will reveal the whereabouts of a person who is believed to have committed an offence.
[46] In the introduction of the affidavit Officer Annetts speaks of her experience as a drug squad investigator gathering information, executing Controlled Drugs and Substances Act and Criminal Code search warrants, doing investigations, conducting surveillance and preparing cases for court purposes. Officer Annetts is not specific about the number of years as an investigator with the drug squad or about the number of search warrant cases she has been involved in.
[47] I will allow the defence to cross-examine Officer Annetts on the narrow area of her experience with the drug squad and her reasonable grounds to believe drugs and money would be found at 51 Butterworth Ave.
DISPOSITION
[48] Leave is granted only to cross-examine Officer Annetts in the area of her experience with the drug squad and her reasonable grounds to believe drugs and money would be located at 51 Butterworth Ave.
Allen J.
Released: September 15, 2015
COURT FILE NO.: CR-1590000494-0000
DATE: 20150915
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
INEZ GAYLE
REASONS FOR JUDGMENT
(Application for Leave to Cross-Examine on a Search Warrant Affidavit)
Allen J.
Released: September 15, 2015