ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Parr, 2015 ONSC 90
COURT FILE NO.: 13-1136
DATE: January 6, 2015
B E T W E E N:
HER MAJESTY THE QUEEN
Tim McCann, for Her Majesty the Queen
Respondent
- and -
ALAN PARR
Mark Lazarovitz, Solicitor for the Applicant
Applicant
HEARD: January 5, 2015
RULING
JAMES J.
[1] The applicant seeks leave to cross-examine Constable Paul Hicks on the affidavit he swore in support of a request for a search warrant respecting property at 33 Cabby’s Trail in the Town of Laurentian Hills.
[2] The applicant resided in a trailer located on the property. The applicant’s trailer was part of, or adjacent to, a mobile home park.
[3] The applicant is charged with three offences pursuant to the Controlled Drugs and Substances Act relating to the production of marijuana and possession of cannabis resin.
[4] The applicant intends to bring a Charter application under section 8 at the trial of this action and in anticipation of that application, seeks leave to cross-examine the police officer that prepared the information to obtain the search warrant.
[5] The applicant seeks to cross-examine the affiant on five discreet issues. They are as follows:
a. In regard to the information provided by the confidential informant, the applicant seeks to cross-examine the affiant on the source of that information, the timeliness of that information, and the efforts made to corroborate that information;
b. In regard to the occurrence report that the applicant seeks to cross-examine on, the detail provided in the report and the accuracy of the information;
c. In regard to the information provided by the confidential informant, the applicant seeks to cross-examine the affiant on the source of that information, the timeliness of that information, and the efforts made to corroborate that information;
d. In regard to the anonymous tips, the applicant seeks to cross-examine on the detail provided and the timeliness of the information; and
e. In regard to the reliability and credibility of the informant, the applicant seeks to cross-examine the affiant on their (sic) efforts to corroborate the information provided by the informant and the information provided by the affiant to the issuing Justice about the credibility and reliability of the informant including information related to past use of the informant and the criminal record of the informant.
[6] The respondent does not oppose the request to cross-examine the affiant where the questions are directed to discrepancies between the occurrence reports and the information respecting those occurrence reports that was provided in the information to obtain.
[7] The respondent does not oppose any questions relating to the affiant’s assertions that he was able to view marijuana plants growing near the trailer in question while observing the property from the roadside.
[8] In particular, the respondent is opposed to permitting any cross-examination which may tend to identify a confidential informant.
[9] The affidavit in question indicates that the affiant received information from a confidential source that the applicant was growing marijuana and producing hash oil at his residence at 33 Cabby’s Trail. The confidential informant provided information that included information regarding the applicant’s vehicle and his current address.
[10] The affiant subsequently was able to confirm that the applicant resided at the indicated location, that he had an old conviction for cultivation of a narcotic.
[11] The affiant attended at the location in question and viewed it from what he described as a private road that was adjacent to the main house or office building of the mobile home park.
[12] The affiant noted the presence of a vehicle that was registered to the applicant at 33 Cabby Trail. He said that he could see marijuana growing near the trailer in question from his viewpoint at the roadside.
[13] The affiant also referred to hearsay information that he received from a fellow officer from an anonymous source to the effect that there were marijuana plants growing behind a mobile home located at 33 Cabby’s Trail in the Town of Laurentian Hills.
[14] The issue for determination on this application is whether there was a basis upon which the authorizing judge could grant the search warrant in question. The applicant does not have an unfettered right to cross-examine the affiant on the information to obtain and has the onus of demonstrating the requested cross-examination will be successful in discrediting one or more of the statutory pre-conditions for the authorization (R. v. Pires 2005 SCC 66, [2005] S.C.J. No. 67 at para. 40). The test for leave is not an onerous one. The applicant must show a reasonable likelihood that cross-examination will assist the court to determine a material issue.
[15] Here the affiant obtained specific information a registered confidential informant with respect the applicant, his place of residence and the cultivation of marijuana at his place of residence. He took steps to confirm the reliability of the information provided. This included ascertaining the identity of the resident at the premises in question and ownership of a vehicle he observed located at the premises in question that turned out to be registered to the applicant. Moreover, he was able to corroborate the information provided to him by observing marijuana plants growing near the applicant’s trailer.
[16] I am not persuaded that the request to cross-examine the affiant with respect to details of the confidential informant(s) will assist the trial judge to determine a material issue at trial. Firstly, care must be taken not to inadvertently allow evidence to be adduced that may tend to identify a confidential informant. Secondly, the reliability of the informant’s information was tested by the affiant and found to be reliable. Thirdly, the affiant swore that he was able to observe marijuana plants growing at the place where the applicant resided by observing the premises from the roadside.
[17] I accept the Crown’s acknowledgement that it would be appropriate for the affiant to be cross-examined with respect to the information he included in his affidavit from the occurrence reports to which he referred when requesting the authorization. These occurrence reports apparently have not yet been disclosed to the applicant but ought to be disclosed promptly.
[18] In addition, in my view cross-examination of the affiant ought to be permitted with respect to the particulars of the “roadside” from which the affiant made his observations. There is a reference in the affidavit to Cabby’s Trail being a private road. It is not clear to me whether this road is a public area or maybe treated as a public area with a low level of any expectation of privacy. There is a lack of evidence with respect to whether Cabby’s Trail has other residences located on it, whether municipal services are provided to the residences of this private road and what signage, if any, may be present in the area indicating that it is a private road or prohibiting public passage or trespassing. Also, the affiant may be questioned through cross-examination of what he was able to observe from the roadside.
[19] Accordingly, limited cross-examination confined to the areas enumerated herein will be permitted.
Mr. Justice Martin James
DATE RELEASED: January 6, 2015
CITATION: R. v. Parr, 2015 ONSC 90
COURT FILE NO.: 13-1136
DATE: January 6, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
ALAN PARR
Applicant
RULING
James J.
DATE RELEASED: January 6, 2015