ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.:CRIMJ(F)575/14

DATE: 2015 11 19

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CHASE SAMUELS and SADE SMITH

Applicants

Sidney Thompson, for the Crown

Jason Bogle, Counsel for Chase
Samuels, Applicant

Cenk Bilgen, Counsel for Sade
Smith, Applicant

HEARD: November 17-19, 2015

REASONS FOR JUDGMENT

Ruling on application to cross-examine the affiant and sub-affiants

WOOLLCOMBE J.

A Introduction

[1]

Introduction

The accused are to be tried by me, with a jury, on charges of trafficking in narcotics and possession of property obtained by crime. The charges follow the execution of a search warrant at a residential apartment and the attached balcony on August 22, 2015. Both accused were in the apartment, as were their two children.

2The Crown proposes to lead evidence as to what was found when the search warrant was executed. The search of the apartment revealed the following: a bag on the balcony with 48 oxycodone pills, 23 grams of heroin and 16.9 grams of heroin; a large bag in the master bedroom closet with 248 grams of marijuana and $29,340.00 cash.

3The accused have brought an application to exclude that evidence pursuant to s. 24(2) of the Charter, pursuant to a Garofoli application and alleged s. 8 violation. As a preliminary matter, they seek an order permitting cross-examination of three police officers. They seek to cross-examine Constable Fraser, who swore an affidavit in support of the search warrant. They also seek to cross-examine two sub-affiants: Constables Robitaille and Cranley in relation to the Information to Obtain (ITO) prepared in support of the search warrant.

B. Grounds for the Application to Cross-examine

[4]

Grounds for the Application to Cross-examine

In the Notice of Application dated November 2, 2015, the applicants provided virtually no information as to the grounds relied upon in support of their application to cross-examine the affiant and sub-affiants. The material was generic and of little assistance to either the Crown in responding to the application, or to me in trying to determine whether the threshold for cross-examination had been met.

5As a result, counsel were ordered to provide an amended notice of application setting out the grounds relied upon in support of the application to cross-examine each of the three officers and how the proposed areas of cross-examination would undermine the validity of the issuance of the warrant.

6In the amended notice, the applications suggest the following grounds for cross-examination, which I have cross-referenced to their notice of application:

• Cross-examine will establish that the warrant was deficient in meeting the minimum requirements for the issuance of a warrant (paras. 49, 50);

• Cross-examination will establish that the information provide by C#1 was inaccurate and not-specific and will establish bad faith on the part of the police (para. 51);

• Cross-examination will establish whether the information from the informants was recent or dated (para. 52);

• Cross-examination will clarify the basis for the assertion that CI #1 and CI #2 were not aware that the other was providing information (para. 53)

• Cross-examination will establish whether the police followed procedures for handling informants (para. 54)

• Cross-examination will establish that the police made no attempts to establish specific information regarding “distribution signatures” or “modus operandi” of the applicants with the informants (para. 55);

• Cross-examination will establish whether there was information as to whether the drugs were stored (para. 56);

• Cross-examination will provide information about the apparent benefits offered to the informants for cooperation (para. 57);

• Cross-examination will reveal the absence of police observations confirming that the applicant Mr. Samuels was using the apartment (paras. 58-59)

• Cross-examination will reveal what information Constable Fraser had about the February 2, 2012 entry into the applicants’ residence (para. 60);

• Cross-examination will provide information about the Toronto Police Service (“TPS”) documents that were provided to the affiant and how this was used in preparing the ITO (para. 61);

• Cross-examination of Constable Brayvant will reveal information about the filing of the Report to a Justice (para. 62)

• Cross-examination of Constable Mavity will relate to decisions as to timing of the application, execution, delegation of roles and follow-up (para. 62);

• Cross-examination of the officers “could lead to issues regarding credibility” including issues related to information received from the TPS and information about the applicants’ previous involvement with the TPS (paras 63-64).

7These grounds were amended and refined somewhat during the oral argument. In addition, new arguments were advanced in support of other areas of cross-examination.

C. The Legal Test for Cross-examination of an affiant or sub-affiant

[8]

The Legal Test for Cross-examination of an affiant or sub-affiant

The test for when cross-examination is permitted is clear. In R. v. Pires; R. v. Lising (2005), 2005 SCC 66, 201 C.C.C. (3d) 449 (S.C.C.) at para. 10, Charron J., for the Court, reaffirmed the test first developed by Sopinka J. in R. v. Garofoli (1990), 1990 52 (SCC), 60 C.C.C. (3d) 161 (S.C.C.):

Leave should be granted when the trial judge is satisfied that 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. [emphasis added]

9As the Court explained at para. 40 of Pires and Lising,

As discussed earlier, the Garofoli leave requirement is simply a means of weeding out unnecessary proceedings on the basis that they are unlikely to assist in the determination of the relevant issues. The reason that the test will generally leave just a narrow window for cross-examination is not because the test is onerous — it is because there is just a narrow basis upon which an authorization can be set aside. Hence, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focused on the question to be determined on a Garofoli review — whether there is a basis upon which the authorizing judge could grant the order. If the proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted. However, if 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.

10There is, therefore, an onus on the applicants to show a basis or a reason for cross-examination before leave to cross-examine should be granted. I am to consider whether the applicants have shown a reasonable likelihood that cross-examination will elicit testimony that is probative to the issue I need to decide. After summarizing the relevant authorities, Justice Hill in R. v. Pham [2009] O.J. 4296 at para. 14 pointed out that deficiencies such as inaccurate information or omission of a material fact will not necessarily detract from the statutory pre-conditions for issuance of a warrant. Accordingly, a mere showing of error, omission, lack of precision, or overstatement will not always suffice to establish the case for leave to cross-examine. 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. (Pires, at para. 41).

11In this case, the ITO contains information provided by two confidential informants, CI #1 and CI #2. Informant privilege is an ancient and hallowed protection” that belongs to the informer. It protects not only the informer’s name, but also “any information which might implicitly reveal his or her identity”. (R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281, 112 C.C.C. (3d) 385 at paras. 9 and 18; R. v. Omar (2007) 2007 ONCA 117, 84 O.R. (3d) 493 (C.A.) at paras. 36-44). Subject to the “innocence at stake” exception, both the Crown and the court are required to protect the informer’s identity.

(continues verbatim in the same structure)

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Woollcombe J.