R. v. Ronald, 2016 ONSC 1692
CITATION: R. v. Ronald, 2016 ONSC 1692
COURT FILE NO.: CR14-2310
DATE: 2016/03/09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Gurpreet Ronald and Bhupinderpal Gill
Defendant
Brian Holowka and Jason Neubauer, for the Crown
Ronald Michael Smith and Jessica Abou-Eid, for the Defendant, Gurpreet Ronald
James Harbic, for the Defendant Bhupinderpal Gill
HEARD: February 8, 2016
Decision re leave to cross examine an affiant
(Garofoli application)
Parfett J.
[1] The Applicant, Ms. Gurpreet Ronald, seeks leave to cross-examine the affiant on a general warrant issued February 25, 2014. This warrant led to the collection of DNA evidence from Ms. Ronald.
[2] For the reasons set out below, leave to cross-examine is granted.
Background
[3] The Applicant, Gurpreet Ronald and the co-accused, Bhupinderpal Gill are charged with the first degree murder of Jagtar Gill, wife of Mr. Gill.
[4] It is alleged that on January 29, 2014, Mr. Gill left the family home in the company of his daughter to run some errands. It was Mr. Gill’s day off and his daughter was not at school due to the fact it was exam period.
[5] They left Jagtar Gill at home. She was recovering from surgery, was sedated and was lying on the living room couch. Mr. Gill was gone from the home for approximately two hours. When he returned, his daughter and his nephew – who they had picked up from school earlier in the morning – entered the home. They discovered the body of Jagtar Gill. It appeared she had been beaten and stabbed.
[6] Police quickly learned that Mr. Gill and Ms. Ronald had been having an affair. They also established there was DNA from an unknown female left at the scene. Shortly after the homicide was discovered, Ms. Ronald was interviewed as part of a neighbourhood canvass. At that time, the officer speaking to Ms. Ronald noticed she had a cut on her hand that had been bandaged. Surveillance was conducted on Ms. Ronald in an effort to obtain cast-off DNA. They also collected garbage bags from the Ronald residence. The police were unsuccessful in obtaining an appropriate DNA sample and applied to the Court for a general warrant pursuant to s. 487.01 of the Criminal Code[^1]. This warrant permitted the police to enter on Ms. Ronald’s property and use a ruse to obtain a DNA sample that was later linked to the DNA left at the scene of the crime.
[7] Ms. Ronald now seeks leave to cross-examine the Affiant in relation to this warrant.
Positions of the parties
[8] Defence counsel argues that the Affiant made material omissions in the information to the issuing Justice with respect to the efforts made by the surveillance team to collect the Applicant’s DNA. Consequently, he alleges the duty on the Affiant to make full and frank disclosure was not met. Defence contends the absence of full and frank disclosure undermined the precondition of s. 487.01(1)(b) of the Code – that the issuing judge be satisfied it was in the best interests of the administration of justice to issue the warrant.
[9] Crown counsel contends that the non-disclosure the Applicant alleges would negate a precondition for the issuance of the warrant is peripheral at best and could not have any impact on the issuance of the warrant.
Legal Principles
[10] The test for leave to cross-examine an affiant on an information to obtain a warrant is set out in the seminal case, R. v. Garofoli[^2]. It states,
Leave [to cross-examine] 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.[^3]
[11] This test is reaffirmed in R. v. Pires; R. v. Lising[^4] where the Supreme Court of Canada reminds the reviewing judge that,
...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. (...) A reasonable likelihood that [the cross-examination] will assist the court to determine a material issue is all that must be shown.[^5]
[12] A review of the relevant caselaw establishes the following principles to guide the reviewing judge’s determination of the question of leave to cross-examine:
- The test for leave to cross-examine is narrow, but not onerous or stringent;[^6]
- The areas the Applicant wishes to cross-examine must relate to the merits or substance of the issuance of the warrant, and not its form or some other peripheral matter;[^7]
- The Applicant does not have to show that the cross-examination will be successful in discrediting a precondition to the issuance of the warrant. A reasonable likelihood that it will assist the court to determine a material issue is sufficient;[^8]
- Areas that may give rise to the need for cross-examination, if they also relate to a precondition to the issuance of the warrant, are:
- Material factual claims made by the Affiant that may not be accurate;
- Material factual claims made by others to the Affiant that s/he ought to have known were inaccurate; and
- Failure to disclose information known to the Affiant that should have been disclosed pursuant to the obligation to make full, frank and fair disclosure.
[13] As noted in R. v. Ebanks[^9],
The failure of an Affiant police officer to investigate a case with due diligence may have adverse consequences on the admissibility of evidence obtained under an authorization.[^10]
Analysis
[14] The Applicant argues that the evidence reveals the police had opportunities to gather cast-off DNA but did not take them. Specifically, during the course of the surveillance and when the police seized the garbage, they could have acquired the DNA sample they wanted without having to trespass on Ms. Ronald’s property or her privacy rights. According to the Applicant, this failure to use the opportunities provided to the police undermines the issuing judge’s conclusion that the warrant was in the best interests of the administration of justice.
[15] The Applicant alleges that the cross-examination of the Affiant will provide meat to the bones of this allegation. Ultimately, the Applicant hopes the evidence will provide the grounds for a s. 8 Charter[^11] application. On the other hand, the Crown contends that finding out more details concerning why the police failed to obtain any cast-off DNA will be immaterial. The ‘why’ of the failure will not change the fact there was a failure. Therefore, according to Crown counsel the issuing judge could still have issued the warrant with that information. I disagree.
[16] Section 487.01(1)(b) of the Criminal Code is a precondition for the issuance of a general warrant. It requires the issuing justice to balance the privacy rights of a suspect against the need to properly investigate a serious crime.
[17] As noted by the Crown, there is no requirement for investigative necessity before a warrant can be issued pursuant to s. 487.01. In addition, there is no requirement that a general warrant be issued only as a last resort as suggested by defence. However, a general warrant does require the issuing justice to determine whether it is in the best interests of the administration to issue the warrant.
[18] As noted by defence counsel, part of that decision making process necessarily involves balancing the competing rights to privacy and to investigate serious crime. It therefore matters whether there were available and less intrusive alternatives. This is precisely the area that the Applicant wishes to explore.
[19] Defence counsel has indicated that he wishes to cross-examine only on the issue of whether cast-off DNA could have been obtained without the necessity of a general warrant. This area of cross-examination is narrowly focussed and in my view, necessary to ensure Ms. Ronald’s right to full answer and defence.
[20] Consequently, I will permit cross-examination of the Affiant on the surveillance reports and the garbage collection with respect to the availability of DNA belonging to Ms. Ronald.
[21] The application is granted.
Madam Justice Julianne Parfett
Released: March 9, 2016
CITATION: R. v. Ronald, 2016 ONSC 1692
COURT FILE NO.: CR14-2310
DATE: 2016/03/09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
Gurpreet Ronald and Bhupinderpal Gill
Defendant
REASONS FOR JUDGMENT
Parfett J.
Released: March 9, 2016
[^1]: R.S.C. 1985, c. C-46. [^2]: 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421. [^3]: Ibid. at paras. 88-89. [^4]: 2005 SCC 66, [2005] 3 S.C.R. 343. [^5]: At para. 40. [^6]: Garofoli, at para. 88; R. v. Pires and Lising, 2005 SCC 66, [2005] S.C.J. No. 67 at para. 40; R. v. So, decision of Paciocco, J (OCJ) released June 13, 2013 at para. 17; R. v. Williams, 2003 CanLII 18484 (ON CA), [2003] O.J. No. 5122 (CA) at para. 11. [^7]: Garofoli, at para.198; R. v. Land, 1990 CanLII 10969 (ON SC), [1990] O.J. No. 624, (H.C.) at pp. 30-31. [^8]: Pires and Lising at para. 40 [^9]: [2007] O.J. No. 2412 (SCJ). [^10]: At para. 32. [^11]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.