ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: Alexis, Funes & Kelly v. HMQ, 2015 ONSC 936

COURT FILE NO.: CRIM J (P) 479/13

DATE: 2015 03 13

B E T W E E N:

HER MAJESTY THE QUEEN

R. Alexander Cornelius for the Crown

Respondent

• and -

MARCUS ALEXIS AND BRIAN FUNES AND KMAR KELLY

Adele Monaco for Marcus Alexis; Mary Cremer for Brian Funes, and Cydney Israel for Kmar Kelly

Applicants

HEARD: November 10 and 12, 2014

RULING RE: LEAVE TO CROSS-EXAMINE AFFIANT

Information contained herein is prohibited from publication by order of The Honourable Mr. Justice Joseph Michael Fragomeni

Fragomeni J.

[1] The Applicant Brian Funes seeks an order for leave to cross-examine the Affiant of Part VI authorizations to intercept the private communication of numerous targeted individuals issued by the Honourable Mr. Justice Durno on December 12, 2011, February 9, 2012 and April 4, 2012. Constable Kurtis Vaughan is the Affiant of the Information to obtain for all three authorizations.

OVERVIEW OF THE ALLEGATIONS

[2] The Applicant, along with his co-accused and other individuals, are alleged to be involved in a robbery using a firearm of a banquet hall called “Rozz Restaurant and Entertainment Complex,” located at 200 Advance Boulevard, Unit 20, Brampton, Ontario, on April 16, 2011. During the course of this robbery, Mr. Sam Parker was injured and Mr. Kearn Nedd was shot to death.

[3] In the course of their investigation of the robbery and shooting of April 16, 2011, the Peel Regional Police identified Mr. Gabriel Owusu (“Owusu”) as a potential suspect. Owusu had presented at the Trillium Hospital in Mississauga with a gunshot wound in his back. After giving a false name and misleading physicians and Peel Regional Police officers about his identity for several hours, Owusu admitted his true identity and told police that he had lied about his name because he was on the run. Owusu was placed under arrest.

[4] In the course of their arrest of Owusu, Peel Regional Police officers seized his cell phone, among other items.

[5] On April 18, 2011, a telewarrant search warrant was obtained for a search of the contents of Owusu’s cell phone seized at the Trillium Hospital. This included text messages, call details, photos, and any and all details.

[6] Based on the information obtained from the aforementioned telewarrant, the investigators obtained a number of Production Orders and tracking recorder numbers concerning the cell phone activity of a number of individuals, including the Applicant, as well as a tracking recorder warrant for the vehicle believed to belong to the Applicant.

[7] On December 12, 2011, the investigators applied for and obtained a Part VI authorization to intercept the private communications of numerous targeted individuals, including the Applicant. In addition, further applications were sought including:

(a) Application for a one-person consent authorization to intercept communications;

(b) A consent general (video) warrant to make observations by means of video camera or other similar electronic devices where one of the persons has consented;

(c) A number recorder warrant;

(d) A production of telephone records order;

(e) A general warrant;

(f) A tracking warrant; and

(g) Assistance Order.

The affiant in support of this application was Police Constable Kurtis Vaughan. The application was granted by the Honourable Mr. Justice Durno of the Superior Court of Justice on December 12, 2011.

[8] On February 9, 2012, the investigators sought a subsequent Part VI authorization to intercept private communications. The affiant of the information to obtain was again Police Constable Curtis Vaughan. This authorization of February 9, 2012, was a renewal and expansion of the original authorization of December 12, 2011.

[9] On April 4, 2012, the investigators sought a subsequent Part VI authorization to intercept private communications. The affiant of the information to obtain was again Police Constable Curtis Vaughan. This authorization of February 9, 2012, was a renewal and expansion of the two preceding authorizations.

[10] The information to obtain with respect to the three authorizations (December 12, 2011; February 9, 2012; and April 4, 2012) adduced evidence in support of the applications from various sources, including:

(a) The use of a state agent, Nirmalan Satkunananthan (“Satkunananthan”);

(b) The investigation and arrest of S.G. (“S.G.”);

(c) The investigation of Andy Owusu;

(d) Results of forensic testing from the Centre of Forensic Sciences (“CFS”);

(e) The Applicant’s criminal record and reputation;

(f) The investigation and arrest of the Applicant and Joseph Magdangal (“Magdangal”) for firearms offences on February 22, 2012.

AREAS OF CROSS-EXAMINATION

[11] The Applicant identifies the areas of cross-examination that he submits will be reasonably likely to assist the court in determining the validity of the authorizations as follows:

RE: NIRMALAN SUTKUNANANTHAN

i) What drew Nirmalan Satkunananthan to the attention of the police on June 22, 2011? What was the nature of the discussions that occurred between Cst Duncan, Cst Devlin and agent of the state Nirmalan Satkunananthan when police arrived at his residence on June 22, 2011? How long did police spend questioning Nirmalan at his residence? Why did police want Nirmalan to come down to the police station to give a statement? What was said to Nirmalan to get him to come down to the police station to give a statement? Was Nirmalan escorted to the police station by officers or did he attend by himself? If he was escorted what conversation ensued between Nirmalan and the police on the way to the police station?

ii) Why was the audio statement of June 22, 2011 not included in the first authorization?

iii) Since Nirmalan Satkunananthan lied and misled officers in his audio taped statement of June 22, 2011, what prompted the police to turn him into an agent of the state? When did police first approach Nirmalan about being an agent of the state? Who approached Nirmalan? What was said to Nirmalan? Were these interactions recorded either in written format, audio or video taped? If so, how were these interactions recorded? If not, why were these interactions not recorded? How many meetings occurred between Nirmalan and the police before Nirmalan agreed to become an agent of the state?

iv) Since Nirmalan lied and misled officers in his audio taped statement of June 22, 2011. what was it that led police to believe that they could be assured of his reliability? What steps did police take to ascertain his credibility and reliability?

v) In the audio taped statement of Nirmalan to Cst King on August 3, 2011, what discussions occurred before recording the interview? At what point did police become aware that Nirmalan was present at the poker tournament? What prompted the change in Nirmalan’s version of the events from June 22, 2011 to August 3, 2011?

vi) Were there any occasions where police met with Nirmalan between June 22, 2011 to August 3, 2011? If so, what was said? Were any of these meetings recorded?

vii) At the end of the audio taped statement of Nirmalan and Cst Philip King on August 3, 2011 Nirmalan indicates to the officer that he does not want anyone to know that he is at the police station. Cst King says he will deal with that concern off camera. What is said between Nirmalan and Cst King after the conclusion of the audio taped interview on August 3, 2011?

viii) During the audio taped interview of August 3, 2011, Cst King asks Nirmalan about the nature of his gambling debts and he advises that the police could assist him with those debts — what assistance would the police offer Nirmalan? How did Nirmalan know prior to the interview of August 3, 2011 that the police could help him with his debts? What did the police believe was the amount of debt that Nirmalan had accumulated? Did Nirmalan communicate any concerns about his physical safety or overall well-being in regards to his debts? Did police ever end up paying some or all of Nirmalan’s debts as part of the consideration in acting as agent of the state?

ix) When did discussions about an immunity agreement first start with Nirmalan and the police? Who brokered those discussions?

x) Did police review the intercepts of Nirmalan’s meetings when he was on assignment by police? When Nirmalan failed to disclose to officers the entirety of what he discussed with the targets when he was in a debriefing interview, why did police continue to use him as an agent? If the affiant articulated concerns about the truthfulness of the agent, why was he continued to be used as agent of the state?

RE: ANDY OWUSU

i) What investigative measures were taken that assured police Andy Owusu was in British Columbia at the time of the murder of Kearn Nedd? How did police confirm Andy Owusu had checked in with his probation officer before and after the murder? What were the dates? Did police conduct an actual interview with the probation officer or did they rely upon paperwork? Did Andy Owusu meet in person with his probation officer or did he check in by telephone?

ii) If police concluded that Andy Owusu was not a suspect and was not involved in the Nedd homicide why were the police waiting at Pearson airport when Andy Owusu arrived in Toronto on May 2, 2011? Why was Andy Owusu escorted back to the airport by police on October 11, 2011?

iii) During the time that Andy Owusu was in Ontario from May 2, 2011 to October 11, 2011, were police following him? Did he in fact stay at his mother’s house for the entire duration of his visit or did he stay at the residence of other people? Did he ever stay at the residences of S.G.? Did Andy Owusu and Gabriel Owusu stay together and / or travel around together while Andy Owusu was in Ontario?

iv) What charges did Andy Owusu get arrested for during his visit in Ontario from May 2, 2011 to October 11, 2011? When was he arrested? How long was he incarcerated? What led to his release such that he boarded a plane on October 11, 2011?

v) What was the purpose of Andy Owusu’s visit from May 2, 2011 to October 11, 2011?

RE: JOSEPH MAGDANGAL

i) When Joseph Magdangal is arrested for possession of the firearm on February 22, 2012 after the execution of a search warrant on his residence he gave a statement to police. In this statement he told the officer that the gun belongs to Brian Funes and that he was storing the firearm for him at his house. Joe Magdangal was released on bail. Did any police officer speak to Joe Magdangal before he gave his videotaped statement? If so, what was said? Were any of these discussions recorded either in written form or otherwise? If not, what was the reason? Was Magdangal ever promised immunity from being implicated in the Nedd homicide prior to giving his videotaped statement? Was Magdangal ever promised bail was he promised assistance in getting bail prior to giving the videotaped statement of February 22, 2012?

ii) Did police ever get involved in the resolution discussions when Joe Magdangal pled guilty to possession of a firearm before the Honourable Justice McLeod where he was sentenced to nine months in custody?

S.G.

i) When was it decided that the Peel Police and the Hamilton police would work together in the execution of the search warrants involving S.G. in Hamilton and Mississauga?

ii) When S.G. tells Cst Langdon and Cst Lennon during his statements on and off camera on June 9, 2011 that the firearms located in the storage lockers belong to Andy Owusu, did police conduct a parallel investigation into this? Did police subject Andy Owusu to any police surveillance since he was in Ontario during the time of the arrest of S.G.? Did police make any efforts to obtain a separate Part VI authorization for the cell phone of Andy Owusu while he was present in Ontario from May 2, 2011 to October 11, 2011? What were the results of these investigations?

iii) When S.G. offers to work with the police and provide them with information on homicides in the area do police ever use S.G. either as an agent or as a civilian witness for this purpose?

POSITION OF THE CROWN

[12] The Crown seeks to tender communications intercepted pursuant to s. 184.2 of the Criminal Code. The Crown submits that the three pre-requisites have been met namely (a) reasonable grounds to believe an offence had been committed; (b) Consent – on August 23, 2011 Nirmalan Satkunananthan consented to becoming an agent of the state for the purpose of one party consent authorization; (c) reasonable grounds to believe that Information about the offence will be obtained.

[13] The Crown is not seeking to make use of any interceptions or one party consent interceptions for the period the April 4, 2012 warrant was in force.

[14] The Crown submits that Justice Durno had sufficient information in the ITO to satisfy himself that grounds existed for the authorization, that being one of “reasonable probability” based on the “totality of circumstances”.

[15] The Crown argues that the Applicant has not established a basis for granting leave to cross-examine the Affiant. The Crown submits that a basis must be shown by the Applicant that the cross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization.

[16] In reviewing the proposed areas of cross-examination, as set out by the Applicant at paragraph 143 of his Factum, the Crown submits that none of those concerns would have the effect of discrediting any of the three pre-conditions for issuance of the authorizations.

[17] The Crown acknowledges that the Affidavit must be frank, full and fair in complying with the statutory pre-conditions for an authorization, however, that does not require the affiant to regurgitate to the issuing Justice the entire history of the investigation.

[18] The Crown argues further that even if there are omissions and material facts not disclosed that does not automatically result in the pre-conditions not being met. The authorization will not be invalidated if there remains a sufficient basis for the issuance of the authorization. Even misleading or fraudulent information will not automatically vitiate an authorization. This also applies to inaccurate information.

[19] In summary the Crown contends that the concerns raised by the Applicant are not borne out when the ITO is considered in its totality. However, even if these concerns were present and that material was excised from consideration there is still sufficient information contained in the ITO to satisfy the pre-conditions for the authorizations to have been issued.

ANALYSIS AND THE LAW

[20] As set out by the Supreme Court of Canada, there is no automatic right to cross-examine a wiretap affiant. In R. v. Garafoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 60 C.C.C. (3d) 161, the Court stated the following at paragraphs 112 to 114:

With respect to prolixity, I am in favour of placing reasonable limitations on the cross-examination. Leave must be obtained to cross-examine. 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 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.

When permitted, the cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted. The discretion of the trial judge should not be interfered with on appeal except in cases in which it has not been judicially exercised. While leave to cross-examine is not the general rule, it is justified in these circumstances in order to prevent an abuse of what is essentially a ruling on the admissibility of evidence.

In my opinion, the appellant has shown a basis for the cross-examination here. In view of the degree of reliance by the police on the informant in this case, if the informant is discredited then the factual basis for the authorization is undermined. If it is shown that the informant lied, then it could raise the inference that the police knew or ought to have known that he lied. If the police were not warranted in their belief that the information was true, then the basis for belief that a crime was to be committed disappears. Accordingly, the appellant should have been permitted to cross-examine. Cross-examination having been denied, there must be a new trial.

[21] This issue was again dealt with by the Supreme Court in R. v. Pires; R. v. Lising, 2005 SCC 66, 2005 S.C.C. 66, 201 C.C.C. (3d) 449. Charron J. stated the following at para. 40:

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 focussed 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.

[22] Charron J. also stated this at para. 30:

However, the Garofoli review hearing is not intended to test the merits of any of the Crown's allegations in respect of the offence. The truth of the allegations asserted in the affidavit as they relate to the essential elements of the offence remain to be proved by the Crown on the trial proper. Rather, the review is simply an evidentiary hearing to determine the admissibility of relevant evidence about the offence obtained pursuant to a presumptively valid court order. (I say "relevant" evidence because, if not relevant, its inadmissibility is easily determined without the need to review the authorization process.) As indicated earlier, the statutory preconditions for wiretap authorizations will vary depending on the language of the provision that governs their issuance. The reviewing judge on a Garofoli hearing only inquires into whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed. For example, in this case, where the authorization relates to participant or consent surveillance, the reviewing judge must determine whether there was a basis for the authorizing judge to be satisfied that:

(a) there are reasonable grounds to believe that an offence has been or will be committed;

(b) either the originator or the intended recipient of the private communication has consented to the interception; and

(c) there are reasonable grounds to believe that information concerning the offence will be obtained by the interception.

Hence, there is a relatively narrow basis for exclusion. Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context. In the end analysis, the admissibility of the wiretap evidence will not be impacted under s. 8 if there remains a sufficient basis for issuance of the authorization.

[23] In 2009, the Honourable Mr. Justice Hill dealt with this issue in R. v. Pham, 2009 56738 (ON SC) in a Ruling dated October 21, 2009. At para. 14 of his Ruling Justice Hill reviews the relevant overarching principles and it is instructive and informative to set those out. At para. 14 Justice Hill states:

Before turning to the case for leave to cross-examine in this prosecution, recognition of the relevant overarching principles may be helpful:

(i) a Part VI Criminal Code authorization is presumptively a valid court order: R. v. Lachance, 1990 53 (SCC), [1990] 2 S.C.R. 1490 at para. 14

(ii) the right of cross-examination is of fundamental significance to the criminal process: R. v. Pires, (2005), 2005 SCC 66, 201 C.C.C. (3d) 449 (S.C.C.) at para. 3

(iii) the right to cross-examine is not unlimited or absolute and, with respect to cross-examination of the affiant of a sworn affidavit for an order to wiretap, “leave to cross-examine is not the general rule”: Pires, at para. 3; R. v. Garofoli (1990), 1990 52 (SCC), 60 C.C.C. (3d) 161 (S.C.C.) at para. 87, 89

(iv) because there is no untrammelled right to cross-examine an affiant (R. v. Martin, [2000] O.J. No. 1362 (C.A.) at para. 2), leave to cross-examine should be given only where “necessary” to enable an accused to make full answer and defence: Pires, at para. 3; Garofoli, at para. 88

(v) there is an onus, albeit not an onerous one (Pires, at para. 40), on an accused seeking cross-examination “to show” a basis (Pires, at para. 3), to “show a reason” (Martin, at para. 2), for cross-examination before leave will be granted for an evidentiary hearing with cross-examination

(vi) the leave question, involving an exercise of discretion by a trial judge (Pires, at para. 46), considers whether the applicant has established “a reasonable likelihood” that cross-examination of the applicant will elicit testimony of probative value to an issue under consideration, for example, a challenge to the accuracy of an affidavit insofar as inaccuracy or omissions impact on the existence of reasonable grounds for issuance of the search order: Pires, at para. 3, 65; Martin, at para. 2

(vii) because deficiencies such as inaccurate information or omission of a material fact “will not necessarily detract from the existence of the statutory preconditions” for issuance of the search order (Pires, at para. 30; Araujo, at para. 51, 54; R. v. Lajeunesse, 2006 11655 (ON CA), [2006] O.J. No. 1445 (C.A.) at para. 8; R. v. Ambrose, 1994 1378 (ON CA), [1994] O.J. No. 1457 (C.A.) at para. 7 (leave to appeal refused [1995] S.C.C.A. No. 28); R. v. Camara, 2005 BCCA 639, [2005] B.C.J. No. 2803 (C.A.) at para. 32, 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)

[24] Justice Hill then states the following at paras. 18 to 26:

That said, as a general rule, mere pleading and argument, or an asserted “good faith basis to cross-examine” (R. v. Jacobson and Hall, [2004] O.J. No. 649 (S.C.J.) at para. 7-8), do not afford a sufficient evidentiary foundation for an exercise of discretion to permit an affiant’s cross-examination: see Garofoli, at para. 81, 90 (2 affidavits filed suggesting informant lied); Lachance, at para. 28 (sworn evidence giving rise to inference of misleading representation in affidavit); Pires, at para. 60 (“assertions [of counsel] did not give reason to embark on an evidentiary hearing”); R. v. Chow, 2009 BCCA 328, [2009] B.C.J. No. 1421 (C.A.) at para. 4-6 (production of evidence of witnesses including the affiant taken in a separate proceeding); Ambrose, at para. 7 (applicant “adduced no evidence”); R. v. Morey, [1999] O.J. No. 5491 (S.C.J.) at para. 19 (aff’d [2003] O.J. No. 1562 (C.A.)) (transcript of affiant’s preliminary inquiry evidence).

The defence must, as a threshold matter, “show a reasonable likelihood that cross-examination of the affiant will elicit testimony of probative value” to an issue before the court: Pires, at para. 3, 35, 40, 65, 69.

Rule 6.03(d) requires an applicant in a case such as this to state “the documentary, affidavit and other evidence to be used at the hearing of the application”. In the present case, on the application for leave to cross-examine, that evidence is limited to the face of the affidavits themselves.

In order to supplement an attack on a Part VI authorization, the applicant for leave to cross-examine an affiant must, as said, establish a preliminary or threshold of a basis for being permitted to do so. Relevance and materiality stand as essential criteria. The applicant need not, however, produce “prima facie proof” or a substantial preliminary showing of the substance of what is alleged to contradict the specific contents of the affidavit, for example false or reckless disregard for the truth: Garofoli, at para. 82-88.

In the Ambrose case, at para. 7, the court observed:

The appellants adduced no evidence in support of their application but rather relied upon suggested inconsistencies, omissions and conclusory statements in Cst. Cousins' affidavit and upon evidence given by her at the trial. In our view, those matters, standing alone, did not show a basis for the view that the proposed cross-examination, either of Cst. Cousins or Sgt. Gulkiewich (even assuming the latter to be appropriate), "will elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization". We are therefore not persuaded that the trial judge erred in refusing leave to cross-examine.

In the Martin decision, at para. 3, the court noted that:

The appellant sought leave to cross-examine the affiant, a police officer, on several areas including…the possibility of material non-disclosure. The appellant did not establish an evidentiary basis for these lines of cross-examination.

In R. v. Washington, 1997 3968 (ON CA), [1997] O.J. No. 4163 (C.A.) at para. 10-11, the court upheld the trial judge’s denial of leave to cross-examine the informant, noting that at trial “defence counsel called no evidence to support its motion for leave to cross-examine”.

In R. v. Riley, [2008] O.J. No. 4893 (S.C.J.) at para. 10-11, the court stated:

In Det. Comeau's affidavit, there are many occasions when he refers to informer information, but, for whatever reason, in several cases, he does not disclose the source of the informer's information. Standing alone, such information stands no higher than mere rumour or gossip. When it comes to evaluating the significance of such information, without knowing the source of the information, I can afford it no greater significance than I would if Det. Comeau had actually said in his affidavit that it was rumour or gossip. It will be a matter for argument on the Garofoli application whether or not other considerations elevate the reliability of any of that information. However, I cannot see how cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization. At best, Comeau might confirm that some of the information was mere rumour or gossip. As I have just explained, that would have no impact on the way that I treat it. Alternatively, Comeau might reveal that some of the information stands higher than mere rumour or gossip or, most likely, that he doesn't know the particular informer's source. The first of these answers might actually enhance the existence of one of the preconditions to the authorization. The second answer would leave the status of the preconditions to the authorization unchanged. No answer could discredit any of the preconditions to the authorization.

This ground for cross-examination exemplifies much of the approach of the applicants. They argue, in effect, that where there is a weakness in the affidavits, they should be entitled to cross-examine. I do not agree. The weaknesses in the affidavits are matters for argument upon the Garofoli application. They are not, of themselves, grounds for cross-examination. Only where some basis exists, however meagre, that cross-examination on the point will elicit testimony tending to discredit the existence of one of the preconditions to the authorization will cross-examination be permitted. In this case, the job is done without cross-examination. The shortcoming in the affidavit is clear. It will not be "improved" by cross-examination. Accordingly, the test for cross-examination is not met. This ground provides no basis for cross-examination. All that remains is argument on the Garofoli application.

In the Jacobson decision, at para. 31, 42 and 44, the court stated:

Hall contends that the affidavits did not satisfy the pre-condition of investigative necessity because there were numerous alternative investigations which had not yet been pursued. He listed a number by reference to various pieces of information set out in the affidavit itself. I do not understand how this can justify cross-examination. If it is apparent from the affidavit itself that the pre-condition is not met then there is no need for cross-examination. In any event, I am not satisfied that the content of the affidavit supports Hall's assertion that the subject was unfairly dealt with and therefore find this provides no basis for cross-examination.

Hall contended that cross-examination might reveal that there were other factors justifying an earlier undercover operation which were not disclosed. He also argues that one or more of the affidavits were misleading because they did not disclose the fact that the police had considered an undercover operation earlier. Hall has shown no basis for these assertions.

I accept that discrediting the credibility of the deponent could also tend to discredit the existence of pre-conditions. However, I conclude that Hall has not shown a basis for cross-examination on the subject of the credibility of the affiant.

[25] It is important when reviewing the Garofoli decision to keep in mind the factual context that formed the basis of the analysis. In Garofoli the accused attacked certain statements in the wiretap affidavit as being untrue. The accused filed two affidavits asserting that the informant information relied on by the affiant was false because the accused was out of the country when he was alleged to have engaged in the specific acts of trafficking. On this basis the Supreme Court held that the accused had shown a basis for cross-examination. In Garofoli the court found that the applicant did show that cross-examination would elicit evidence going to one of the preconditions of the warrant.

[26] The threshold issue of whether leave should be granted to cross-examine the affiant is of course, a separate and distinct issue from the question of whether the judicial authorizations are valid. On the evidentiary record before me I am satisfied that the Applicants have demonstrated and set out an evidentiary foundation that the proposed cross-examination points to a reasonable likelihood that it will assist the Court in assessing the basis of the authorizations. I am satisfied it will elicit testimony of probative value to an issue under consideration, in this case, the challenge to the accuracy of the ITO insofar as the inaccuracy or omissions impact on the existence of reasonable grounds for the issuance of the search order. Having said that I wish to note what Justice Hill stated at para. 36 in Pham:

I remain mindful of the observation of the court in Pires at para. 69:

Although the likely effect of the proposed cross-examination must be assessed in light of the affidavit as a whole, I also agree with Finch C.J.B.C. that the threshold test for determining whether cross-examination should be allowed is separate and distinct from the ultimate question of whether the authorization is valid. Hence, in determining whether the threshold test has been met, the trial judge cannot decide the question simply on the basis that other parts of the affidavit would support the authorization. The focus, rather, must be on the likely effect of the proposed cross-examination and on whether there is a reasonable likelihood that it will undermine the basis of the authorization. If the test is met, it is only at the conclusion of the voir dire that the trial judge will determine whether, on the basis of the amplified record, there still remains a basis for the authorization.

[27] In Pires and Lising the Court considered the aspect of this discussion as it relates to the reliability of an informant. At para. 41 the court stated:

In some cases, the proposed cross-examination may be directed at the credibility or reliability of an informant. However, 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. We must not lose sight of the fact that the wiretap authorization is an investigatory tool. At that stage, a reasonable belief in the existence of the requisite statutory grounds will suffice for the granting of an authorization. Upon further investigation, the grounds relied upon in support of the authorization may prove to be false. That fact does not retroactively invalidate what was an otherwise valid authorization.

[28] From this statement it is important to note that the Court is focusing on the credibility and reliability of the affiant and the affiant’s reliance on informant information. In Pires and Lising the Court referred to the fact situation in Garofoli as a good example of where the proposed cross-examination was properly allowed. At para. 42:

The fact situation in Garofoli itself provides a good example of a situation where the proposed cross-examination was directed not only at the lack of credibility of the informant but at the affiant's likely awareness of that fact. The informant alleged that he had been approached by Garofoli and another individual in Hamilton with an offer to supply him with two kilograms of cocaine. In his affidavit, Garofoli stated that he lived in Florida at the relevant time. He further stated that the officer in charge of the case was well aware that he was living in Florida and that he only travelled back to Hamilton in connection with his court appearances. Furthermore, information from the informant person was critical to establishing the requisite reasonable grounds. Sopinka J., for the majority, found that the appellant had shown a basis for the cross-examination (p. 1466):

In my opinion, the appellant has shown a basis for the cross-examination here. In view of the degree of reliance by the police on the informant in this case, if the informant is discredited then the factual basis for the authorization is undermined. If it is shown that the informant lied, then it could raise the inference that the police knew or ought to have known that he lied. If the police were not warranted in their belief that the information was true, then the basis for belief that a crime was to be committed disappears. Accordingly, the appellant should have been permitted to cross-examine. Cross-examination having been denied, there must be a new trial.

[29] In R. v. McLaughlin, [2005] O.J. No. 1156 (S.C.J.) Justice Dawson stated the following on that point:

The legal principles that govern a review such as this require that I edit out of the affidavit material which I find to be erroneous or misleading: R. v. Bisson, 1994 46 (SCC), [1994] 3 S.C.R. 1097, 94 C.C.C. (3d) 94 (S.C.C.) If I find that there are material omissions that alone or cumulatively impact whether or not the authorization could issue I am to consider the affidavit as if those material omissions had not been made: R. v. Araujo, supra, para. 57; R. v. Church of Scientology No. 6 (1987), 31 C.C.C. (3d) 449 (Ont. C.A.). At the end of the day I am to assess whether the affidavit so modified could support the issuance of the authorization. Errors, even if advertent or fraudulent are only factors to be considered in determining whether an authorization should be set aside: R. v. Bisson, supra. However, it may be appropriate to set aside an authorization in circumstances where the edited affidavit could support its issuance where the conduct of the police has been so subversive that the authorization must be set aside to protect the preauthorization process: R. v. Morris (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.); R. v. Colbourne (2001), 2001 4711 (ON CA), 157 C.C.C. (3d) 273 (Ont. C.A.).

[30] In Pires; Lising Justice Charron made it clear that “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.”

[31] As Justice Hill stated in Pham “a mere showing of errors, omissions, lack of precision or overstatement will not always suffice to establish the case for leave to cross-examine”.

[32] With these legal principles in mind and having reviewed the limited areas of inquiry set out by the Application, I am satisfied that the Applicant has met his onus to establish that cross-examination will be of assistance to the Court.

[33] Leave is hereby granted to cross-examine Constable Kurtis Vaughan, the Affiant of the Information to obtain for these authorizations pursuant to Part VI. The cross-examination shall be restricted and limited to the questions identified by the Applicant in his Factum at Tab. 36 at paragraph 143.

Fragomeni, J.

Released: March 13, 2015

CITATION: Alexis, Funes & Kelly v. HMQ, 2015 ONSC 936

COURT FILE NO.: CRIM J (P) 479/13

DATE: 2015 03 13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and –

MARCUS ALEXIS and BRIAN FUNES and KMAR KELLY

Applicants

RULING RE: LEAVE TO CROSS-EXAMINE AFFIANT

Fragomeni, J.

Released: March 13, 2015