Court File and Parties

Court File No.: 4090/13 Date: 2016/08/26

Ontario Superior Court of Justice

Between:

Her Majesty the Queen Peter B. Wenglowski, for the Respondent Respondent

- and -

James DiBenedetto Steven M. Fishbayn, for the Applicant Applicant

Application Heard at Welland, Ontario: May 24, 25 & 26, 2016 The Honourable Justice T. Maddalena

Rulings on Application for Leave to Cross-Examine Affiant of ITO

The Issues

[1] The applicant in this application seeks leave to cross-examine Detective Jay Howe, the affiant in relation to warrants executed against 85014 Creek Road, Wainfleet, Ontario (“the barn”) and 49 Foresthill Crescent, Fonthill, Ontario (“the residence”).

[2] The applicant also seeks leave to cross-examine sub-affiants, Sgt. Frank Mossuto, P.C. James, Det. Cook, Sgt. Dave Shennan and Sgt. Todd Stevenson.

[3] This application was heard on May 24, 25 and 26 of 2016. This is the fifth ruling in a series of pretrial motions concerning Mr. DiBenedetto.

[4] The applicant, in his factum, has raised 42 specific areas in which he is seeking leave to cross-examine either the affiant and/or sub-affiants. In oral argument, the applicant added one additional area for leave to cross-examine.

[5] Finally, in paragraph 27, page 13, of the applicant’s factum, there are a series of 16 general areas in which the applicant seeks to cross-examine.

[6] I propose to, therefore, deal with all specific areas in which the applicant is seeking leave to cross-examine and will utilize the same numbering and reference as in the applicant’s factum. Finally, I will also generally deal with those general areas outlined in paragraph 27 of the applicant’s factum.

The Legal Test

[7] The legal test for the granting of leave to cross-examine an affiant of an ITO is set out in R. v. Garofoli, [1990] 2 S.C.R. 142.

[8] In paras. 88 and 89 of Garofoli, the court noted as follows:

88 … 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.

89 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. …

[9] Further in R. v. Pires and Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, the Court held in para. 10 as follows:

10 … With respect to the affiant, the Court recognized the need to circumscribe the cross-examination within reasonable limits. First, there would need to be a threshold showing of a basis for embarking on an enquiry and second, when permitted, the cross-examination should be confined to questions directed to the issue for consideration by the court. …

[10] Further in Pires and Lising, at para. 41, the Court held as follows:

“… 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. …”

[11] In R. v. Green, 2015 ONCA 579, [2015] O.J. No. 4428 (Ont. C.A.), the Court held that the trial judge, in deciding whether to grant leave, must have regard to the accused’s right to make full answer and defence, the Crown’s and the court’s obligation to protect the identity of the CIs, and the court’s obligation to make effective use of limited judicial resources by avoiding unnecessary and time-consuming proceedings (see para. 31).

[12] In R. v. Ngo, 2011 ONSC 6676, [2011] O.J. No. 5023, the court held as follows in paras. 34 and 35. Paragraph 34 is a summary of guidelines that have been applied by the courts, which include as follows:

(1) The warrant is presumptively valid unless the challenging party establishes that there was no basis for its issuance: R. v. Campbell, 2010 ONCA 558, at para. 45. (aff’d, 2011 SCC 32).

(2) “[T]he review is not an exercise in examining the conduct of the police with a fine-toothed comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application”: R. v. Nguyen, 2011 ONCA 465, at para. 57.

(3) As noted in R. v. Cunsolo, [2008] O.J. No. 3754 (S.C.J.) (QL), at para. 135:

The appropriate approach for judicial review of the facial validity of a search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, a common sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question: R. v. Grant (1999), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No. 168 (Q.L.), 150 C.C.C. (3d) vi); R. v. Chan, [1998] O.J. No. 4536 (Q.L.) at para. 4, 40 W.C.B. (2d) 143 (C.A.); R. v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558 (Q.L.) at para. 15-18, 19 W.C.B. (2d) 194 (C.A.); Simonyi Gindele et al. v. British Columbia (Attorney General) (1991), 2 B.C.A.C. 73 (C.A.) at 79.

(4) Police officers are not legal draftspersons and cannot, in an ITO, be expected to “spell out things with the same particularity of counsel”: Re Lubell and the Queen (1973), 11 C.C.C. (2d) 188 (Ont. H.C.), at p.190; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 19; R. v. Sanchez (1994), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364; Re Chapman and the Queen (1983), 6 C.C.C. (3d) 296 (Ont. H.C.), at p. 297.

(5) It will not be surprising that an ITO will have some flaws – “[f]ew applications are perfect”: Nguyen, at para. 58. The question remains whether the core substance of the ITO could support the justice of the peace’s exercise of discretion to issue the warrant.

(6) While it is expected that an ITO will present reliable, balanced and material facts supporting the asserted grounds of belief, an ITO affiant need not attempt to replicate a Crown disclosure brief – the document should be clear, concise, legally and factually sufficient, and “need not include every minute detail of the police investigation”: C.B.C. v. New Brunswick (Attorney General) (1991), 67 C.C.C. (3d) 544 (S.C.C.), at p. 562; R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.), at p. 470; R. v. Ling (2009), 2009 BCCA 70, 241 C.C.C. (3d) 409 (B.C.C.A.), at para. 43 (leave to appeal refused, [2009] S.C.C.A. No. 165).

[13] Further in Ngo, the court held in para. 35 the following additional principles:

(1) The application must disclose reasonable grounds or credibly-based probability regarding the essential statutory prerequisites. This standard of reasonable probability does not equate to proof beyond a reasonable doubt or to a prima facie case (R. v. Debot (1989), 52 C.C.C. (3d) 193 (S.C.C.), at p. 213) “or even on a balance of probabilities”: R. v. Jacobson (2006), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22. Accordingly, reasonable grounds “are not proof absolute” though they must be more than mere suspicion: R. v. Smith (1998), 126 C.C.C. (3d) 62 (Alta. C.A.), at p. 77.

(2) Whether an ITO affiant subjectively had grounds of belief, and whether those grounds reasonably existed in an objective sense, is a fact-specific determination in each case.

(3) Grounds of belief are to be considered in their totality, not isolated out for independent evaluation. The point was made in Campbell, at para. 57:

Considered independently each of these grounds may not have justified the authorization. However, a justice of the peace could have found from their cumulative effect that there were reasonable grounds to issue the warrant.

See also R. v. Nguyen, 2007 ONCA 24, at para. 4: (“The cumulative effect of the information demonstrated the existence of reasonable and probable grounds to believe that a grow operation would be found inside the house”).

(4) “It is trite law that an applicant for a search warrant has a duty to make full, frank and fair disclosure of all material facts in the ITO supporting the request” for a search warrant: Nguyen (2011), at para. 48. In R. v. N.N.M. (2007), 223 C.C.C. (3d) 417 (Ont. S.C.J.), at para. 320, the court stated:

Because a search warrant application is generally an ex parte application, there is a "legal obligation" to provide "full and frank disclosure of material facts" with the relevant facts set out "truthfully, fully and plainly ": Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at 469-470 (emphasis of original). A justice can only perform the judicial function of issuing a warrant if "provided with accurate and candid information": R. v. Hosie (1996), 107 C.C.C. (3d) 385 (Ont. C.A.) at 399; R. v. Agensys International Inc. (2004), 187 C.C.C. (3d) 481 (Ont. C.A.) at 491. The "requirement of candour is not difficult to understand; there is nothing technical about it": R. v. Morris (1998), 134 C.C.C. (3d) 539 (N.S.C.A.) at 551. An affiant for a warranted search is under a duty to avoid drafting which attempts to trick the reader, for example by the use of boiler-plate language, or which could mislead the court "by language used or strategic omissions": Araujo, at 470. Careless language in an ITO "deprives the judicial officer of the opportunity to fairly assess whether the requirements of a warrant have been met" and "strikes at the core of the administration of justice": Hosie, at 398-400.

(5) The affiant’s experience is relevant to the assembly of investigative facts and their promotion as affording reasonable grounds of belief. This principle was described at para. 68(6) of the Cunsolo case in these terms:

Because a trained officer is entitled to draw inferences and make deductions drawing on experience (R. v. Jacques and Mitchell (1996), 110 C.C.C. (3d) 1 (SCC) at 12), a reviewing court must take these factors into account: R. v. Lawes, 2007 ONCA 10, [2007] O.J. No. 50 (C.A.) at para. 4; R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501; R. v. Juan (2007), 222 C.C.C. (3d) 289 (BCCA) at para. 19; R. v. Tran, 2007 BCCA 491, [2007] B.C.J. No. 2341 (C.A.) at para. 12; R. v. Mouland, 2007 SKCA 105, [2007] S.J. No. 532 (C.A.) at paras. 26-27; R. v. Ingle, [2007] B.C.J. No. 2024 (C.A.) at para. 53; R. v. Rajaratnam (2006), 214 C.C.C. (3d) 547 (Alta. C.A.) at 559; R. v. Grotheim, 2001 SKCA 116, [2001] S.J. No. 694 (C.A.) at para. 30; R. v. Quillian, [1991] A.J. No. 1211 (Q.B.) at para. 56.

The soundness of this approach has been specifically recognized in the context of marihuana grow-op investigations: “The officer’s observations, filtered through his experience with marijuana cultivation operations, provided sufficient information upon which the justice could have issued the warrant”: Jacobson, at para. 22.

(6) An issuing justice is entitled to draw reasonable inferences from stated facts and an informant is not obliged to underline the obvious: Lubell, at p. 190.

(7) A court considering the issuance of a search warrant is entitled to draw “reasonable inferences:” R. v. Schiers, 2003 NSCA 138, [2003] N.S.J. No. 453 (C.A.) at para. 15; R. v. Durling (2006), 2006 NSCA 124, 214 C.C.C. (3d) 49 (N.S.C.A.), at para. 20, 27; R. v. Jackson (1984), 9 C.C.C. (3d) 125 (B.C.C.A.) at p. 131; Re Lubell, at p. 190; R. v. Sanchez (2004), 93 C.C.C. (3d) 357 (Ont. Ct.-Gen. Div.), at pp. 365, 370; R. v. Church of Scientology (No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.), at pp. 514-5 (leave to appeal refused, [1989] 1 S.C.R. vii).

(8) Only infrequently is an ITO affiant required to discuss things not observed at the suspected site of a marihuana crow-op: Nguyen (2011), at para. 50. It is implicit that the surveillance did not observe other indicia of the existence of a grow-op: Nguyen (2011), at para. 50. “There is no obligation” on a warrant applicant “to explain away in advance, every conceivable indicia of crime they did not see or sense”: Nguyen (2011), at para. 51.

(9) While a dwelling-house attracts a high level of expectation of privacy, there is no investigative necessity pre-requisite to the issuance of a warrant to search a house in the way there might be for a law office, media premises or a church. As noted in Nguyen (2011), at para. 51, “[t]here is no obligation” on the police in applying for a search warrant to explain “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”.

Confidential Informant #1

Applicant’s Factum - Page 14(i)

[14] The applicant states that Det. Jay Howe (“Howe”) does not appear to swear to his belief in the reliability or credibility of confidential informant #1 (“CI#1”) in the information to obtain (“ITO”). Specifically, the affiant does not say he believes the information from CI#1 is accurate, true and reliable. He proposes to cross-examine Howe in this area.

[15] I find that the ITO affiant does swear as to “reasonable grounds” for his belief in the first few pages of the ITO. He further states that he has reviewed a number of documents including confidential informant debriefing reports, surveillance reports, other reports and notes, and ultimately swears that “the information provided in this application is accurate and true” (para. 5 ITO).

[16] The affiant confirms that, based on the totality of all of the information, he believes there is a methamphetamine lab in the barn.

[17] Cross-examination in the area as proposed will be of no assistance to the court in determining whether the warrant should have issued. Thus, the cross-examination on this area is declined.

Applicant’s Factum - Page 15(ii) – Re: Bentiviglio Issue

[18] Howe’s notes produced by the Crown make reference on November 8, 2010 to information received from Det. Mossuto regarding “James Bentiviglio” and his son “Michael Bentiviglio”.

[19] There is reference in the same note shown at 11:20 (not clear on what day due to the redaction) that Det. Mossuto advised that the corrected names are “James DiBenedetto” and “Michael DiBenedetto”.

[20] The applicant proposes to cross-examine on why this information correction was omitted from the ITO that was placed before the issuing justice.

[21] It is clear that the original information provided was in error and was subsequently corrected in accordance with the notes of Howe. What is important is that the correct information was placed before the issuing justice in the ITO.

[22] The initial error in the police notes was disclosed in those notes, corrected by Det. Mossuto, as evidenced by his notes, and properly reflected by Det. Howe to the issuing justice in the ITO, i.e. the ITO reflected the correct name of DiBenedetto.

[23] Cases have held that the ITO need not disclose every minute detail of police investigative notes, in this case, the correction of an error. What is of paramount importance is that the ITO that went before the issuing justice had the corrected information.

[24] I am not persuaded that cross-examination in this area will in any way assist the court in the determination of reasonable grounds. This was a mistake properly disclosed in officers’ notes and thereafter corrected. The issuing justice had the corrected information. Cross-examination in this area is declined as it would be of no benefit.

Applicant’s Factum - Page 15(iii) - Re: “Grow house”

[25] The applicant states that Det. Howe’s notes make reference to CI#1 being shown a “grow house”. (This reference is to a marijuana production facility.)

[26] The applicant states that this is inconsistent with the other CIs’ information, raises doubts with respect to CI#1’s reliability and credibility, and was specifically omitted from the ITO by Det. Howe.

[27] The ITO and the judicial summary show clearly the issuing justice had sufficient information before him. There is no evidence that this was deliberately omitted from the ITO. Again, an ITO need not disclose every minute detail of the police investigation. Thus, cross-examination in this area is declined as it is of no assistance.

Applicant’s Factum – Page 15(iv) – Re: DiBenedetto Senior and Junior

[28] The applicant proposes to cross-examine Det. Howe in order to distinguish James DiBenedetto Sr. and James DiBenedetto Jr. as referenced in the ITO.

[29] This request is simply not relevant. The correct information was placed before the issuing justice, and the justice could not have confused which DiBenedetto was being referenced. There is no basis for this cross-examination. This proposed cross-examination is a fishing expedition, unnecessary, and not relevant.

Applicant’s Factum – Page 15(v) – Typographical Errors re: dates in ITO

[30] Paragraph 59 of the ITO makes reference to police surveillance on December 2, 2010. Paragraph 60 of the ITO makes reference to police surveillance on January 4, 2010. Paragraph 61 of the ITO makes reference to a continuing investigation on January 5, 2010. Paragraph 62 of the ITO makes reference to continuing surveillance on January 11, 2011. Paragraph 63 of the ITO makes reference to continuing surveillance on January 13, 2011.

[31] The applicant proposes to cross-examine the affiant on paras. 60 and 61, as well as the affiant’s notes claiming “this predates the investigation”.

[32] I find these are clear and obvious typographical errors, both in the ITO with respect to paragraphs 60 and 61, and in Det. Howe’s notes. Cross-examination in this area is prolix, unproductive, and clearly of no benefit. There is no likelihood that cross-examination here could even remotely impact the reasonable grounds issue.

[33] In Pires and Lising, the Court held in para. 30 that “… 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 preconditions.”

[34] Further in R. v. Cook, 2008 ONSC 63139, the court held in para. 28(8) as follows:

“… a mere showing of error, omission, lack of precision or overstatement will not suffice to establish the case for leave to cross-examine:…”

Applicant’s Factum – Page 15(vi) – CI#1 Assertions in Paras. 19 and 50 of ITO

[35] In para. 19 of the ITO, there is reference to a date in early November 2010 where CI#1 advised through Det. Frank Mossuto that James DiBenedetto was involved in methamphetamine production.

[36] Paragraph 50 of the ITO deposes that in late November 2010, Sgt. Mossuto advised Det. Howe that CI#1 confirmed that, “DiBenedetto is involved in methemphetamine and heroin production” (Appendix B ITO). The applicant proposes to cross-examine Howe in this area.

[37] The issuing justice assessed paras. 19 and 50 in reference to the totality of the information in the sworn ITO.

[38] The grounds for belief should be considered not in isolation of each paragraph, but with the cumulative effect of the entire ITO. Cases have noted that the focus should not be limited to a critique of isolated paragraphs in an ITO.

[39] Having regard to the entirety of the ITO, there is no reasonable likelihood that cross-examination as proposed would assist the court in determining if the warrant should have issued. Therefore, this proposed cross-examination is declined as prolix, unnecessary, and unhelpful.

Applicant’s Factum – Page 16(vii) – Re: Debot Factors

[40] The applicant proposes to cross-examine the affiant with respect to CI#1 in relation to two of the three Debot considerations.

[41] I have already ruled at least twice on this issue in prior rulings. The proposed area of cross-examination is covered by clear and absolute informer privilege. Cross-examination in this area, I have concluded, will risk confidential informant disclosure.

[42] I also have noted that the Court held in Garofoli in para. 146 as follows:

… Cross-examination is much more likely to reveal the details of investigative operations and the identity of informers than affidavits, which can be carefully drafted to avoid such pitfalls. How can one cross-examine an officer on the reliability of an informant without probing details that might reveal that informant's identity, for example? Once a damaging statement is made in answer to a question in cross-examination, editing is to no avail. Attempts to restrict the scope of cross-examination are notoriously fallible. Since effective cross-examination usually depends on considerable latitude in questioning, a restricted cross-examination may be of little value. Moreover, it is often difficult to predict when a particular question will evoke a response that trenches on a prohibited area. Finally, cross-examination may lead to unduly lengthening trials on collateral evidentiary matters.

[43] Thus, the Court in Garofoli concluded that cross-examination posed risks of disclosure of confidential police information and of lengthening the proceedings to no purpose. In these circumstances, the balance clearly favours rejection of the right to cross-examine (para. 154).

Confidential Informant #2

Applicant’s Factum – Page 16(i)

[44] The applicant proposes to cross-examine Howe with respect to the reliability of confidential informant #2 (“CI#2”) and whether Howe subjectively believes CI#2.

[45] This is similar to the response under CI#1, in that Howe swears to his belief in the entirety of the ITO which is before the issuing justice.

[46] Further, the issue of the protection of the informer applies, and the court has an obligation to ensure that this privilege is maintained. I have also ruled on this issue previously.

[47] Therefore, in order to properly protect the confidential informer privilege, the applicant cannot cross-examine in relation to the proposed areas.

Applicant’s Factum – Page 16(ii)

[48] The applicant proposes to cross-examine Howe on his decision to include CI#2’s confidential informant information in the ITO, given that there is no allegation from CI#2 that the applicant is involved in methamphetamine production. He further states there is no allegation that the applicant is involved in trafficking drugs from CI#2.

[49] With respect to CI#2, I note there is an unredacted statement that “he is trafficking drugs now”.

[50] The redacted ITO has been expanded by the judicial summary. The judicial summary discloses on page 5 that included in the information that went before the issuing justice is “the basis of the knowledge that the accused is trafficking drugs.”

[51] Therefore, the issuing justice had the necessary information with which to make his decision. The proposed cross-examination by the applicant clearly risks breach of confidential informer privilege and cannot be permitted.

Applicant’s Factum – Page 17(iii) – Re: Carmen Barillaro DOB July 24, 1994

[52] The applicant suggests the information provided by CI#2 in Appendix B of the ITO is many years old. He proposes to cross-examine Howe on his knowledge of the age of the information.

[53] The ITO states in Appendix B: “November 8, 2010: the CI (reference CI#2) met James DiBenedetto several years ago …”.

[54] The information with respect to CI#2 is heavily redacted to protect informer privilege.

[55] Under CI#2, in the ITO there is a reference to the applicant’s association with a “Carmen BARILLARO (born July 24, 1994 and now deceased).”

[56] Carmen Barillaro is described in the ITO as a figure in the “traditional organized crime” (commonly referred to as Mafia) world.”

[57] The applicant suggests that Carmen Barillaro referred to herein died in 1997. The applicant states this information came about by way of a Google search (the Crown did not oppose the submission of this information). Thus, the applicant submits that the information provided by CI#2 is stale-dated, 13 years old, and worthless.

[58] Firstly, the Crown submits that the date of birth of Carmen Barillaro, as shown in the ITO as 1994, is an obvious typographical error.

[59] An unredacted portion of Appendix B merely states that “DiBenedetto was also good friends with Carmen Barillaro”. There is no suggestion in unredacted Appendix B that any information utilized by the affiant was 13 years old.

[60] Further, the information sought by the applicant pertaining to CI#2 that was before the issuing justice is reflected in the judicial summary. The issuing justice would have been aware of the recency of all of the information in the ITO.

[61] The proposed cross-examination, while adding nothing of value, could have the potential to breach CI#2 informer privilege for reasons already stated. Thus, cross-examination as proposed is not permitted.

Applicant’s Factum – Page 17(iv)

[62] The ITO states in para. 25 that CI#2 states that the applicant is associated with Jason Barr, and that Jason Barr “used to be a cocaine dealer”.

[63] The applicant proposes to cross-examine Howe on whether the police investigated and confirmed this allegation regarding Jason Barr as received from CI#2.

[64] I note the ITO outlines in paras. 26 through to 27 inclusive, the police investigation with respect Jason Barr, all of which was before the issuing justice.

[65] I conclude therefore that the proposed cross-examination is prolix and adds nothing to the issues before the court and is, therefore, not permitted.

Applicant’s Factum – Page 17(v) – Debrief Report of Howe and Initials “J.B.”

[66] Det. Howe is the handler for CI#2. In that capacity, he prepared a debrief report dated “November - , 2010-2011”.

[67] In this debrief report there are references to “J.B.”

[68] The applicant suggests that there are two other J.B.s in connection with this investigation, i.e. Jason Barr and James Bentiviglio, and thus proposes to cross-examine Howe with respect to the initials “J.B.” The applicant suggests that Howe misrepresented the information given to him by CI#2 in the ITO.

[69] It appears clear from the CI information in Appendix B that the initials “J.B.” and the “J.B.” in the debrief report is intended to be James DiBenedetto, the accused.

[70] The name “James Bentiviglio” does not come into the ITO at all. This was a correction made in the police investigation prior to the swearing of the ITO.

[71] Further, where the reference is to Jason Barr, that is also clear in the ITO.

[72] I do not agree that there was misrepresentation to the issuing justice. The ITO and redacted debrief report are very clear where the reference is to James DiBenedetto or to Jason Barr. There can be no confusion. The proposed cross-examination is therefore declined.

Applicant’s Factum – Page 18(vi) – Re: NRP Protocol General Order – 141.04

[73] The applicant submits the debriefing report of Det. Howe does not contain an assessment of one of the three statements as required by NRP protocol:

“C/R” = confirmed reliable “B/R” = believed reliable “U/K” = unknown

[74] The applicant proposes to cross-examine Howe on whether this assessment is either missing or redacted from his debrief report and, if redacted, the reasons for the redaction.

[75] First, the debrief report is very heavily redacted to protect confidential informant privilege.

[76] The substantive information relevant to the legal test for issuing the warrant is not in the debrief report, but within the totality of the sworn ITO.

[77] The issuing justice made his decision on the totality of the sworn ITO, not the unsworn debrief report which he did not see or have before him.

[78] Howe swears that he believes all of the information in the ITO to be true, including the information provided by CI#2. This is the relevant information that was before the issuing justice.

[79] Cross-examination as proposed by the applicant is not relevant, is prolix, and adds nothing to the issues before the court. It is a fishing expedition in the hopes that cross-examination might disclose some evidence that could be of some assistance. This is not the legal test for the issue before the court.

[80] Further, there is always the continuing danger that the cross-examination proposed will breach CI privilege and also for this reason, the proposed cross-examination is declined.

Applicant’s Factum – Page 18(vii) – Debrief Report

[81] The applicant proposes to question Howe as to why there was only one debrief report which was disclosed. This is in view of the fact that the ITO and Appendix B makes reference to two dates, i.e. November 8, 2010 and November 10, 2010, with respect to CI#2.

[82] The applicant proposes to cross-examine Det. Howe as to whether a further debrief report exists and why there is a reference in the debrief report disclosed to information in 2011 but this report has not been produced.

[83] The Crown has confirmed that there is only one debriefing report of Howe with respect to CI#2 and it has been produced to the applicant in redacted form.

[84] The debrief report is not sworn and not provided to the issuing justice.

[85] Howe has clearly stated in an affidavit sworn on April 4, 2016 in para. 5 as follows:

“With respect to CI#2, I created and relied upon my CI handler notes. A debriefing report exists but was not relied upon.”

[86] Thus, in the court’s view, this is not a proper area for cross-examination. The debrief report was not relied upon for the ITO. Thus, I conclude cross-examination on a debrief report that was clearly not relied upon for the ITO is not relevant, and a fishing expedition.

Applicant’s Factum – Page 19(vii) – Re: Appendix B and CI#2

[87] The applicant states that in Appendix B it states that CI#2 told Howe that “he is actively trafficking drugs now”. This phrase appears among heavy redaction in the ITO with respect to CI#2.

[88] The notes of Det. Howe disclosed to the applicant, at page 121, suggest that CI#2 “has heard from others that he is selling drugs now.”

[89] The applicant suggests that the fact that this is hearsay, and not firsthand evidence, is not reflected in the ITO. The applicant suggests this was a deliberate and serious omission, such that the affiant misled the issuing justice.

[90] A reading of the ITO with respect to CI#2 and Appendix B clearly does not present the information as firsthand information. It is correct that the ITO is heavily redacted to protected informant confidentiality, but there is nothing in the ITO that would lead the issuing justice to conclude that the information was firsthand information instead of hearsay. Thus, there is no omission that would mislead the issuing justice.

[91] What the issuing justice knew at the time is covered also in the judicial summary. The importance and significance of all of this is that the issuing court had the correct information and was not misled. What is unredacted shows that it was presented as neither hearsay nor firsthand.

[92] The proposed cross-examination adds nothing to the issues before the court. Cross-examination could also lead to the inadvertent narrowing of the pool of confidential informants and ultimately could breach confidential informant privilege. It is, therefore, not permitted.

Applicant’s Factum – Page 19(viii) – Unredacted Occurrence Reports Re: Jason Barr’s Address

[93] The applicant, as part of the Crown disclosure, has received police occurrence reports concerning Jason Barr with his residence address redacted.

[94] The applicant seeks to unredact the occurrence reports pertaining to Jason Barr’s address and submits that if the reports show an address different from 49 Foresthill Crescent, Fonthill, the applicant proposes to question Det. Howe as to why that information was not included in the ITO.

[95] The CI#2 information given to Howe references that in early November 2010, in para. 25 of the ITO, that James DiBenedetto lives at 49 Foresthill Crescent, Fonthill with his daughter and Jason Barr.

[96] Further, in para. 85 of the ITO, police surveillance corroborates that DiBenedetto and Barr travelled back and forth between 49 Foresthill Crescent, Fonthill to 85014 Creek Road, Wainfleet.

[97] In para. 101 of the ITO, police surveillance indicates that police have observed Jason Barr leave 49 Foresthill Crescent and attend the barn in Wainfleet.

[98] Police have further observed DiBenedetto attend at the barn, pick up Barr, and drive him to 49 Foresthill Crescent in Fonthill.

[99] By January 15, 2011, there is no doubt in the mind of the affiant that DiBenedetto and Barr are responsible for the production of methamphetamine in the barn in the Wainfleet location.

[100] Therefore, I conclude, the ITO has a number of references to connect Jason Barr to the Foresthill Crescent residence.

[101] Therefore, the proposed cross-examination is prolix and adds nothing to the issues before the court.

Applicant’s Factum – Page 19(ix) – Reference to “Stuff”

[102] CI#2 states in Appendix B that DiBenedetto is “very hands on, and will keep his stuff in one of his buildings”.

[103] The debrief note of Howe disclosed to the applicant states “J.B. is hands on and will do things himself. He keeps stuff in his buildings”.

[104] The applicant wishes to cross-examine Howe on whether the informant, CI#2, specifically implied that “stuff” references drugs and why the difference in wording of the ITO and debrief notes.

[105] Firstly, the ITO does not reference “stuff” as drugs. It utilizes the same word used by CI#2 since that word is in quotations. The word “stuff” appears in both the debrief note and in the ITO. I do not find any intent to mislead. The issuing justice would have drawn his own inferences as to the meaning of “stuff” from the totality of the ITO.

[106] I conclude there is no basis to cross-examine here. This is nothing but a word-by-word dissection of the ITO to see whether something may come out of the proposed questioning. I conclude that this is none other than a fishing expedition.

Reference in Oral Submissions to Joey Passero

[107] This ground for leave to cross-examine is not outlined in the factum of the applicant, but was raised in oral submissions. Paragraph 62 of the ITO (bullet point no. 4) references a meeting between James and Michael DiBenedetto and a Joey Passero on January 11, 2011.

[108] Appendix B, page 2, under CI#2 references one Gino Passero, born October 4, 1948, of Fort Erie, who is known to Howe through police information and investigations.

[109] The applicant submits that the references in the ITO and Appendix B are not even to the same person, so that the surveillance of the lunch is “worthless” as to criminal acts.

[110] In paragraph 62 of the ITO, the police are reporting what their surveillance discloses.

[111] CI#2 made a reference in the ITO Appendix B to “the Passero’s from Fort Erie”.

[112] The affiant in the ITO makes reference to a Gino Passero of Fort Erie who is known to him as being involved in the Niagara drug trade.

[113] This is the information before the issuing justice. The lunch surveillance in paragraph 62 (bullet 4) is one piece of a larger puzzle. The issuing justice would have had all this information and would be able to draw his own inferences from the totality of the ITO information before him.

[114] There is no basis for cross-examination and, indeed, cross-examination in this area would add nothing of benefit to the determination of the issues before the court.

Confidential Informant #3

Applicant’s Factum – Page 20(i)

[115] The applicant proposes to cross-examine Det. Howe as to why he has no specific notebook entry relating to a review of a versadex report from P.C. James regarding CI#3. The applicant states Howe is required by Niagara Regional Police regulation to document all information he receives from an investigation.

[116] In Det. Howe’s affidavit sworn April 4, 2016, in para. 6, Howe states as follows:

“With respect to CI#3 I reviewed and relied upon a confidential informant debriefing report which was submitted in the form of a versadex report.”

[117] Howe swears in the ITO that he considers the versadex report to be credible, trustworthy, and reliable (paragraph 4). He is entitled further to rely on information received by and from other officers carrying out the investigation.

[118] This “line-by-line dissection” of every part of the police investigation is of no assistance. The test requires the applicant to show a reasonable likelihood that cross-examination in this area will elicit testimony of a probative value. The lack of existence of a notebook entry is irrelevant and of no probative value to the issues before this court.

[119] In Pires and Lising the Court held in para. 3:

… The Garofoli threshold test requires that the defence show a reasonable likelihood that cross-examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewing judge. It is grounded in two basic principles of evidence: relevance and materiality. It is also born out of concerns about the prolixity of proceedings and, in many cases, the need to protect the identity of informants. The rule does not infringe the right to make full answer and defence. There is no constitutional right to adduce irrelevant or immaterial evidence. Further, the leave requirement strikes an appropriate balance between the entitlement to cross-examination as an aspect of the right to make full answer and defence, and the public interest in the fair, but efficient, use of judicial resources and the timely determination of criminal proceedings.

Applicant’s Factum – Page 20(ii)

[120] In paragraph 29 of the ITO, Howe states that CI#3 provided information to Constables James and Koole. Information from CI#3 was both from hearsay and firsthand.

[121] Appendix B of the ITO, with respect to CI#3, states in part, “… the CI also said they believe that Mike is supplied heroin by his father who lives in Fonthill, off South Pelham Road …” [underlining added] The applicant states there is no indication in the ITO if this is hearsay or personal observation.

[122] In the very heavily redacted versadex report disclosed to the applicant, there is an unredacted statement that reads as follows: “… Mike most likely receives his heroin from his father who lives in Fonthill off of South Pelham Road …” [underlining added]

[123] The applicant proposes to cross-examine Det. Howe as to whether Howe made it clear in the ITO that the only allegation from CI#3 about the applicant was based on hearsay and, if not, then the reason for the change in wording from the versadex report to the ITO.

[124] The heavy redaction in the versadex report is required to protect confidential informant privilege. This is the same for the redaction in Appendix B of the ITO.

[125] The applicant has the benefit of the judicial summary. Again, cross-examination with respect to CI#3 is not permitted, as this will clearly jeopardize informant privilege. The issuing justice would have considered his beliefs and made his inferences from all of the information in the ITO. A cross-examination on the difference between “believe”, referenced in the ITO, and “most likely”, referenced in the versadex report, cannot be of assistance even by a stretch of the imagination. Therefore, cross-examination in this area is declined.

Confidential Informant #4

Applicant’s Factum – Page 21(i)

[126] The ITO references in para. 30 that in August 2009 Det. Cook received information from CI#4.

[127] Det. Howe’s notes for November 30, 2010, in part, state: “Spoke with Det. Martin Cook STC street crime. Previous info in 2007 that James DiBenedetto Jr. was selling crystal meth …”

[128] Det. Howe’s notes for December 7, 2010, in part, state: “Spoke to Det. Martin Cook re: DiBenedetto CI’s …” This is confirmed in Howe’s affidavit sworn April 4, 2016, paragraph 7.

[129] The applicant states that it is unclear where the documentation of the source of CI#4’s allegation is located.

[130] The applicant further submits that perhaps the allegations of CI#3 and CI#4, since they are similar, have been confused or conflated by Howe. Also, the applicant submits that given there is no reference to CI#4 in Appendix B of the ITO, this suggests the information from CI#4 has been mistaken.

[131] Therefore, the applicant proposes to cross-examine Det. Howe and Det. Cook on all these issues.

[132] This cross-examination is not permitted. Firstly, cross-examination in this area will likely breach CI privilege and lead to the identification of CI#4. I have previously ruled on this.

[133] Secondly, the issue raised by the applicant of Det. Howe having been confused, conflated, or mistaken is nothing but pure speculation with no basis in evidence.

[134] Thirdly, para. 30 of the ITO with respect to CI#4, states that this CI was considered reliable and credible and has been sourced in several search warrants in which drugs and property were seized and persons arrested.

[135] This is the sworn record put before the issuing justice.

[136] Therefore, I conclude that the proposed area of cross-examination for both Howe and Cook is based on speculation and is not relevant to the issues before the court.

Confidential Informant #5

Applicant’s Factum – Page 22(i)

[137] The applicant states that CI#5 does not mention the applicant in the ITO.

[138] In para. 47 of the ITO there is a reference to Det. Martin Cook receiving information from CI#5 in February 2007.

[139] The applicant wishes to cross-examine Howe on why the information with respect to CI#5 was included in the ITO, given that this was information some four years prior to the issuance of the warrant. He further wishes to question Howe with respect to CI#5 relating to the general areas outlined in para. 27 of the applicant’s factum which will also be dealt with herein.

[140] Firstly, the area of proposed cross-examination is protected clearly by informer privilege.

[141] Further, Det. Howe states in his affidavit sworn April 4, 2016 with respect to CI#5 as follows: “With respect to CI#5 I reviewed and relied upon a confidential informant debriefing report which was submitted in the form of a versadex report. I spoke with Det. Martin Cook on December 7, 2010.”

[142] The versadex report is heavily redacted to protect CI privilege.

[143] The fact that the ITO deposes that Howe spoke with Cook is accurately reflected in Howe’s notes dated December 7, 2010.

[144] The issuing justice was best in a position to assess all of the information in the ITO, including the recency of the information, and to give proper weight to all of the contents and draw his own appropriate inferences from the totality of the ITO.

[145] Therefore, the proposed cross-examination is not permitted.

All of the Confidential Informants

Applicant’s Factum – Page 13, para. 27 – General Proposed Areas of Cross-examination for Each of the Five CIs

[146] The applicant has proposed some general areas of cross-examination for each of the CIs, including the following:

− The reliability of CI information; − Whether a CI had ever been proven unreliable; − Whether CI information was firsthand or hearsay; − Recency of CI information; − Whether CI was instructed on penalties for giving false information; − Whether descriptions provided by the CIs matched accused or the location; − The degree of detail provided by CIs to the police; − Recency of information given to police; − Discrepancies between information of one informer and another; − Any aspects of informer’s information that contradict the police investigation or detract from credibility; − Errors or inaccuracies in the ITO and their nature.

[147] I decline to permit this proposed cross-examination relating to the CIs for reasons already given in my two prior rulings, one written, dated April 15, 2016, and one oral, given May 24, 2016.

Additional Areas of Proposed Cross-Examination

Applicant’s Factum – Page 22, para. 28 – Det. Sgt. Shennan’s Investigation

[148] Paragraph 33 of the ITO states that Det. Sgt. Shennan advised Howe that he (i.e. Shennan) was not able to establish “any current employment or legitimate source of income for DiBenedetto …”

[149] In para. 101 of the ITO Howe deposes, in part, that “this investigation has been unable to determine any legitimate source of income, or occupation for DiBenedetto.”

[150] Howe’s notes disclosed to the applicant indicate at page 127, under the date November 10, 2010, that in regards to this issue, “Shennan conducted previous investigation this year”.

[151] The applicant proposes to cross-examine both Howe and Shennan regarding:

− The recency of Shennan’s investigations; − Attempts to update information in the ITO; and − The process undertaken by the police to ascertain or confirm if one is legitimately employed.

[152] Firstly, the grounds for belief are to be considered in their totality, not through isolated or limited phrases or paragraphs. The issuing justice had before him the totality of the information.

[153] Secondly, the affiant Howe is entitled to rely on other officers’ investigation and information, as in this case with Det. Shennan.

[154] It is not appropriate to consider isolated phrases or paragraphs in the ITO for independent evaluation (R. v. Ngo, para. 35 (3)).

[155] Further, courts have held that the warrant is presumptively valid and the review is not to be an exercise in examining the conduct of police with a fine-toothed comb to the point where police are on trial rather than the sufficiency of the evidence in support of the warrant (R. v. Ngo, para. 34). The review is not intended to be a dissection of police notes on a phrase-by-phrase basis to pick out whatever flaws or minor inconsistencies that might exist.

[156] I am not satisfied that permitting cross-examination in those areas requested by the applicant herein will elicit any evidence of probative value that would assist in ascertaining if the warrant should issue. It would prolong proceedings unnecessarily. In addition, there are no inconsistencies in the notes or the ITO that would affect the issues before the court. Cross-examination is therefore declined.

Applicant’s Factum – Page 22, para. 29 – Basis for Farm as a Drug Lab

[157] In para. 101 of the ITO the affiant states, in part, as follows:

“Informants have identified DiBenedetto’s farm in Wainfleet as being the location of a drug lab that only he and Jason Barr attend.”

[158] The applicant proposes to cross-examine Howe regarding the grounds, if any, for such a statement.

[159] The issue for the court is whether this proposed cross-examination will elicit material information to call into question whether the warrant ought to have issued.

[160] Firstly, this involves confidential informants and the court has the concern that cross-examination here will breach informant privilege as already recited numerous times.

[161] Secondly, part of the function of the issuing justice is to ascribe proper weight, if any, to any and all statements in the ITO, within the context of the entire document. The issuing justice would have made that assessment when issuing the warrant.

[162] I have concluded that the proposed cross-examination will not elicit evidence to discredit the existence of preconditions to the authorization of the warrant.

Applicant’s Factum – Page 23 – Re: Burning of Chemicals

[163] In the ITO, at para. 39, as part of police surveillance on November 11, 2010, Howe states (in the third bullet point), in part, as follows:

“… Sgt. Stevenson observed that the ignition of the substance was intense and immediate and that the flames produced were orange, yellow, green and blue in colour …”

[164] At para. 42 of the ITO, Howe references his training and experience and states that leftover chemicals and/or chemical by-products must be removed. One method is to burn the chemicals and this usually produces multi-coloured flames. Howe states further that “an intense and immediate ignition is indicative of a liquid or dry chemical”.

[165] The notes of Det. Howe for November 11, 2010 indicate that Howe was advised by Officer Pat McCready (“McCready”) that Det. Todd Stevenson “saw male at barn possibly burn chemicals behind barn”.

[166] McCready’s notes for the observation state: “male back of building lit fire in barrel, different coloured flames, advised J.H. (Jay Howe).”

[167] The applicant states there are no notes that the ignition was “intense and immediate” as described in para. 42 of the ITO. The applicant, therefore, proposes to cross-examine Howe on his training and experience that permits him to make such claims and why there are no notes sourcing the claim of “intense and immediate” ignition. Further, the applicant proposes to cross-examine Howe as to why a “possible” chemical burn was described with more certainty in the ITO.

[168] Firstly, the training and experience of police is relevant to the investigations undertaken by them and an officer is clearly expected to draw on his training and experience.

[169] Secondly, it is plain and obvious that the applicant is attempting to pick apart every minute aspect of the ITO and the investigation with a fine-toothed comb in an attempt to locate any inconsistencies or errors that might exist.

[170] As cases have already stated, it is rare for an ITO or investigation to be flawless. Thus, the picking apart and exposing of minor inconsistencies or flaws does not assist in the issue before the court. Further, isolating a passage or phrase in an ITO for independent evaluation is not helpful to discredit the preconditions to the authorization of the warrant. This is not sufficient to meet the test for cross-examination.

[171] Further, the issuing justice is permitted to draw his own inferences and conclusions from all the information.

Applicant’s Factum – Page 23, para. 31 – Blue Bag and Laundry Basket

[172] As part of police surveillance on November 30, 2010, in para. 52 of the ITO (third bullet point) Howe stated that Mr. Di Benedetto and Jason Barr left the farm in a truck and drove to the Fonthill residence.

[173] Howe deposed that, once at the Fonthill residence, Jason Barr removed a large, heavy blue bag and a plastic clothes bin containing unidentified items out of the back seat of the truck and brought them into the house. There are photos of the blue bag and laundry bin taken as a result of the surveillance.

[174] In para. 53 of the ITO, Howe deposed that all of the observations noted on November 30, 2010 confirm that items were transported from the barn to DiBenedetto’s residence in Fonthill.

[175] Howe’s notes disclosed to the applicant for November 30, 2010 confirm that Barr, “got blue bag and laundry basket out of the back seat of the truck and brought the bin and bag into the house”.

[176] The applicant submits that nowhere in the ITO or in Howe’s notes is there information that the “blue bag” and “bin” came from the barn and was brought into the truck.

[177] The applicant submits that Howe deliberately exaggerated the observation regarding the blue bag and laundry basket to manufacture grounds for searching the residence. He states the issuing justice was misled and, therefore, wishes to cross-examine on this observation regarding the blue bag and laundry basket.

[178] Firstly, I note that para. 52 of the ITO is part of the disclosure of the surveillance reporting. The items referred to as the “blue bag” and “plastic clothes bin” do exist and are described both in Howe’s notes, and in the ITO. These items were transported in the truck from the farm property to the home in accordance with the observation on the surveillance report.

[179] Para. 85 of the ITO is a summary of Howe’s belief, based on the entire police investigation, not just the “blue bag” and “plastic bin”. Similarly, para. 101 of the ITO is a summary of his reasonable grounds belief.

[180] Howe’s conclusions as to his reasonable belief do not come from the blue bag and laundry bin incident viewed in isolation, but from the totality of the police investigation, including all the surveillance, all the CI information, information from other officers, his knowledge and experience, as well as the police tools such as outlined in para. 4 of the ITO.

[181] The issuing justice, however, is able to draw his own reasonable inferences from all of the information in the ITO, not just the one incident on its own. To focus only on the blue bag and laundry basket in isolation would be incomplete and inappropriate.

[182] I do not agree with the applicant that the observation of Howe in para. 52 of the ITO is misleading. The blue bag and laundry basket is a small piece of a larger picture presented in the entire ITO.

[183] Therefore, I conclude that cross-examination here is declined as it will not assist on the issue of the reasonable grounds for the authorization.

Applicant’s Factum – Page 24, para. 32 – Re: Opinion of Sgt. Rick Hawley

[184] In para. 48 of the ITO the affiant makes reference in mid-November 2010 to a conversation between Det. Sgt. Rick Hawley and Det. Sgt. Todd Stevenson. There were no notes of this conversation, as this conversation was informal at a police conference.

[185] Paragraph 48 of the ITO ends with the statement by the affiant that, “Det. Sgt. Hawley gave his opinion that in his experience, this investigation is correct in the belief that there is a drug lab in the northwest barn at 85014 Creek Road, Wainfleet.”

[186] Det. Howe’s notes of January 13, 2011 at 14:40 reflect the above-mentioned conversation in the following manner: “TS – spoke to sergeant from OPP drug unit in mid-November. Described information and observations in great detail. Sgt. agreed that it’s consistent with an active meth lab.”

[187] The applicant proposes to cross-examine Howe, Hawley and Stevenson.

[188] Specifically, the applicant proposes to cross-examine Howe on the following:

− Did Howe determine the basis that Hawley relied on for his opinion? − Did he review the file? − Was the affiant aware the conversation was only an informal conversation with no notes? − Why did he change “consistent with” to “this investigation is correct”?

[189] With respect to Hawley, the applicant proposes to cross-examine as to the following:

− Was he aware that an informal conversation at a conference would end up as his opinion in an ITO?

[190] Thirdly, with respect to Stevenson, the applicant proposes to cross-examine as follows:

− Did he make Hawley aware his information was going into an ITO?

[191] I decline to permit the cross-examination as requested.

[192] This is yet another example of the applicant dissecting police information line-by-line to try to “fasten on minor errors or acts or omissions and embellishing those flaws to the point where it is the police conduct on trial rather than the sufficiency of the evidence in support of the application.” (R. v. Ngo, para. 34)

[193] There is no evidence whatsoever that the issuing justice was misled, as suggested by the applicant. Hawley gave an opinion. This was not represented as an expert opinion. This conversation was properly reflected as a conversation in para. 48 of the ITO, not as an expert opinion.

[194] Hawley is permitted to rely on his experience. This is also reflected in para. 48 of the ITO.

[195] Further, the discussion is reflected in Howe’s notes as a conversation between Det. Sgt. Stevenson and Det. Sgt. Hawley. There is not a scintilla of evidence of misrepresentation to the issuing justice. I am not persuaded that cross-examination on the various points here will in any way affect the issues before this court. I conclude, therefore, that cross-examination here is unnecessary, is a fishing expedition, and will not yield probative evidence.

Applicant’s Factum – Page 25, para. 33 – Telephone Conversation with JP Clarke

[196] The applicant proposes to cross-examine Howe on the following:

− What was discussed between Howe and JP Clark; − Were statements recorded and under oath? − What did he (Howe) advise the justice? Was the new information in the application? − The source and meaning of marks in the margin of para. 39 of the ITO.

[197] I have already ruled on this on one prior occasion in a written decision April 12, 2016. My ruling remains unchanged and the cross-examination is declined for reasons already provided to the applicant.

Applicant’s Factum – Page 26, paras. 34, 35, 36, 37 & 38 – Re: Officers’ Experience

[198] The applicant proposes to cross-examine the affiant with respect to claims of experience referenced in paras. 58, 59, 60 and 63 of the ITO.

[199] I have already stated that an officer is entitled to and expected to draw on his own experience and training. In my view, the reference to experience in those paragraphs of the ITO cannot simply be taken in isolation and out of context, but in conjunction with the totality of all of the sworn information in the ITO.

[200] Further, the issuing justice is able to draw his own inferences from the statements made regarding Howe’s experiences in the ITO. The experience referenced by the officer is one of many pieces of information which the issuing justice would have before him in order to draw his own inferences and conclusions. Cross-examination as proposed on the experience of the affiant will not assist the court in the determination of reasonable and probable grounds, and will unduly lengthen proceedings. The proposed cross-examination is declined.

Applicant’s Factum – Page 26, para. 39 – Backpack Issue

[201] In para. 59 of the ITO, as part of police surveillance on December 2, 2010, the ITO states as follows:

“At 8:30 a.m. DiBenedetto came out of the house and removed a red gym bag from the trunk of the Mercedes and put it in the cab of the truck. He then removed a backpack from the car, which he also put into the truck. [it is my experience that drug traffickers often leave money and/or drugs in the trunks of parked cars as a form of safekeeping.]”

[202] The actual surveillance report synopsis for December 2, 2010 reads in part as follows:

“Surveillance was set up on the target’s residence at 0730 hrs. At 0830 hrs T1 exits his home with a young girl (daughter). T1 enters the trunk of V2 and removes a red gym-bag. T1 then places the gym-bag inside V1. T1 returns to V2 and removes a school knap sack from the back seat. T1 places that in V1. The child and T1 get into V1 and leave the area.”

[203] The further details of the actual surveillance report state as follows:

“0730hrs Surveillance set up on residence. The Mercedes and Dodge pick up are in the driveway. (3) 0830hrs The lights flash on the truck. (3) 0833hrs The target is out to the Mercedes and grabs a red gym bag from the trunk. He puts the gym bag in the front of the truck. The target also grabs a knapsack from the Mercedes that possibly belongs to the child. (3)”

[204] The applicant suggests that the omission in the ITO of the phrase that the knapsack “possibly belongs to the child” is “deliberate and sinister” and intending to mislead the court.

[205] Thus the applicant wishes to cross-examine the affiant regarding the omission of that phrase in the ITO.

[206] I do not agree that the omission is misleading, nor was it intended to mislead anyone. In a perfect world and in a perfect ITO, one may conclude the phrase ought to have been in the ITO. However, its absence is not misleading, nor significant.

[207] Firstly, an ITO is not meant to include, nor should it include, every single detail of the police investigation.

[208] This omission does not impact on the reasonable grounds issue. The ITO is accurate when compared with the surveillance notes. The red gym bag was, in fact, removed from the trunk of the Mercedes and placed in the cab (front) of the truck. The backpack (knapsack) was, in fact, removed from the Mercedes and placed into the truck.

[209] The JP was not misled as he had sworn information that the red gym bag came from the trunk of the Mercedes and was placed in the truck and that the backpack came from the Mercedes and was also placed in the truck.

[210] The ITO affiant is able to refer to his own experience, training, plus other police investigative tools, including surveillance, to ascertain an emerging pattern with respect to the applicant’s behaviour. It is the cumulative effect of the information that is ultimately placed for consideration before the issuing justice for his own conclusion.

[211] I conclude that cross-examination here is of no benefit, and is a fishing expedition, and will not assist the court on the reasonable grounds issue.

Applicant’s Factum – Page 27, para. 40 – Re: Burning of Chemical Waste

[212] In para. 71 of the ITO, Det. Howe states, in part:

“Once again the above observations are consistent with Barr operating a clandestine drug lab in the northwest barn and burning the chemical waste which generally burns hotter and faster than other combustible materials like a wood fire….”

[213] The applicant submits that no source is given for the assertion that chemical wastes burn hotter and faster than other combustibles, and thus the applicant proposes to cross-examine the affiant on the source of his assertion.

[214] However, paras. 9 through 14 of the ITO deal with information about clandestine methamphetamine labs. This information, along with Appendix C of the ITO, was placed before the issuing justice.

[215] In paras. 9-14 of the ITO, there is reference to the following:

• Chemicals used and by products created are highly volatile, toxic substances (para. 9 ITO); • Reference in North America to numerous occurrences of fires, explosions and persons overcome by toxic fumes (para. 10 ITO); • Reference to methamphetamine product as sensitive and volatile (para. 12 ITO) • Most dangerous period is the cooking period where small mistakes or disturbances to the process could result in fire, explosion, or severe chemical burns to people (para. 13 ITO);

[216] In Appendix C there is reference to the primary cause of harm of clandestine methamphetamine labs described as “physical injury from explosions, fires, chemical burns and toxic fumes”. There is substantial risk from chemical exposure.

[217] Based on all this material, as well as what is referenced in Appendix C, the issuing justice could draw his own conclusions as to the burning of chemical wastes.

[218] A common sense reasonable approach to the ITO is not “a line-by-line dissection”. It is the cumulative effect of the information that must be considered.

[219] I find the proposed cross-examination is irrelevant, is a fishing expedition, and cannot assist in the determination of the issues before the court. Therefore, the proposed cross-examination is not permitted.

Applicant’s Factum – Page 27, para. 41 – Re: Appendix C

[220] There is in the ITO an attachment as Appendix C entitled “Background information/ Points of Interest of Clandestine Methamphetamine Labs …” There is a reference to the source as the U.S. Department of Justice – Clandestine Methamphetamine Labs 2nd Edition by Michael Scott and Kelly Dedel.

[221] However, the applicant submits that what is attached at Appendix C is not the entire article, but a “cut and paste” document downloaded from the Internet. The applicant seeks to cross-examine the affiant about the source of the document at Appendix C. The applicant also seeks to cross-examine the affiant on the information contained in Appendix C.

[222] The applicant suggests that Appendix C is in the ITO to give it “a sheen of scientific expertise”. Moreover, the applicant submits that Howe has excerpted only parts of the full document and the limitations on its use were not provided to the issuing justice. The result, the applicant suggests, is that the document has been “manipulated to mislead the court”.

[223] Firstly, Appendix C is referenced in para. 14 of the ITO. In para. 14 the ITO references that “many of the points listed will be shown to exist in the information below”.

[224] The ITO refers, in para. 14, to a document outlining the “typical methamphetamine lab”. It is clear the entire document was not included.

[225] Appendix C was not represented to the issuing justice as “clear scientific evidence”, but simply characterizing a typical methamphetamine lab.

[226] Appendix C appears to be a summary of an entire article that is 63 pages long. The Appendix C summary is six pages long. There is no legal requirement that the full article must be appended. Appendix C adequately represents the authors of the article as Michael Scott and Kelly Dedel.

[227] While it is correct that portions of Appendix C are excised, the excision, I find, is not for nefarious reasons as suggested by the applicant, but merely to provide to the issuing justice some information with respect to methamphetamine labs, the cooking methods, the risks posed to the environment and persons, and the risks in the disposal.

[228] I do not find any attempt to manipulate and/or mislead. I am not persuaded that the cross-examination as proposed will assist in discrediting the preconditions of the reasonable grounds.

Applicant’s Factum – Page 27, para. 42 – Grounds for Belief

[229] In para. 101 of the ITO, Howe states that he has reasonable grounds for belief that a methamphetamine lab is operating in the northwest barn in Wainfleet and that a quantity of methamphetamine and heroin is at the residence in Fonthill. His grounds for belief are summarized in para. 101 of the ITO.

[230] The applicant wishes to cross-examine Howe on “the subjective and objective basis for this sworn belief”.

[231] The issuing justice had the benefit of all the information in the ITO. The issuing justice did draw his own conclusions based on the sworn document. Ultimately, he determined that reasonable grounds were substantiated since he issued the warrant.

[232] There is no probative value to an examination of Howe’s subjective and objective basis for his belief.

[233] The proposed cross-examination of the affiant is prolix, speculative, and adds nothing to assist the court. It does not meet the threshold test and is, therefore, declined.

Applicant’s Factum – Page 28, para. 43 – Re: Eastern European Organized Crime Issue

[234] The ITO, under Part V – Sealing Orders Request, states in part:

“Further Eastern European organized crime involvement in this Investigation increases the perceived level of threat to these informants …”

[235] The Crown has acknowledged that the above-referenced phrase in the ITO is in error and ought to be excised. The applicant proposes to cross-examine Howe on the reasons for this information’s inclusion in the ITO.

[236] The applicant further submitted in oral argument that if this phrase came from another ITO, he wishes to see that very ITO. Clearly, the issue of viewing another ITO is not relevant to the matters before the court and will not be permitted.

[237] Further, I find this to be an inadvertent error on the part of the ITO affiant. Also, it comes into the ITO under the heading of a sealing order and not with respect to the issue of reasonable grounds to believe. Again, few applications are perfect. This does not affect the core of the ITO.

[238] The proposed cross-examination is, therefore, not permitted.

Sub-Affiants

Applicant’s Factum – Page 28, para. 44

[239] The applicant proposes to cross-examine Det. Mossuto with respect to CI#1 in the following areas:

− Circumstances surrounding the name “Bentiviglio”; − Whether Mossuto had a basis for concluding that CI#1 was credible or reliable; − Whether CI#1 was a registered or a “carded” informant; − Whether any of these areas of information were conveyed to Howe; − Whether Howe asked Mossuto to confirm credibility or reliability of CI#1.

Applicant’s Factum – Page 28, para. 45

[240] The applicant proposes to cross-examine Det. Stephen James regarding his involvement with respect to CI#3. Further, the applicant proposes to cross-examine Det. Martin Cook regarding CI#’s 4 and 5. The specific areas pertaining to the proposed cross-examination are outlined in the applicant’s factum at para. 27, which I have already dealt with herein.

[241] Also, the applicant proposes to cross-examine both Mossuto and Cook on those other areas outlined in para. 45 of the factum, including whether certain information was hearsay or not, recency of information regarding CI#4, and whether Howe conflated information from CI#3 and CI#4.

Applicant’s Factum – Page 29, para. 46

[242] The applicant proposes to cross-examine Det. Cook in relation to CI#5 with regard to the specific areas outlined in para. 27 of the factum which I have already dealt with.

[243] I will deal with the request the applicant’s factum in paras. 44, 45 and 46 together.

[244] Firstly, I reiterate, it is appropriate for Howe, as the affiant of an ITO, to rely on information from fellow officers gathered in the course of a police investigation, including versadex reports, officers’ notes, etc. Further, I have addressed issues surrounding the CI privilege many times already.

[245] I, again, conclude that the proposed areas of cross-examination outlined in paras. 44, 45 and 46 brings the risk of identifying the confidential informants and cannot be permitted.

[246] As the court noted in R. v. Boucher, 2011 ONSC 4994, at para. 18 as follows:

“As well, when confidential informants are involved, utmost care must be exercised to ensure that their identities are not unwittingly revealed through providing information about them or their stories which appears innocuous but which in fact is significant to the accused. In the criminal justice system, the informant’s handlers have the best information as to what information may put the informers, or their family members, at risk (R. v. Leipert, 1997 SCC 367, [1997] 1 S.C.R. 281).”

[247] Thus, I again conclude that cross-examination as proposed is not possible without disclosing information likely to lead to the identity of the confidential informants. Further, the proposed cross-examination of sub-affiants adds nothing to the issues before the court and is not permitted.

[248] I further also rely on those reasons given in my prior written decision on April 15, 2016, dealing with pre-Garofoli disclosure, and in my oral decision on May 24, 2016, dealing with the sufficiency of the judicial summary.

Applicant’s Factum – Page 29, para. 47 – Cross-examination of Sgt. Todd Stevenson

[249] The applicant proposes to cross-examine Det. Sgt. Todd Stevenson regarding his discussion with O.P.P. Sgt. Hawley. He also seeks to cross-examine as to whether Howe followed N.R.P. procedures regarding the documenting of involvement with the confidential informants. For reasons already stated, this area of cross-examination is not permitted. The proposed cross-examination regarding the informal discussions between Stevenson and Hawley adds nothing to the issues, as I have already ruled. It is a fishing expedition.

[250] Further, cross-examination on N.R.P. procedures is not relevant to the ITO and to the issues before the court. It does not meet the test for cross-examination. It is a mere speculative hope that something may arise from the questions.

Applicant’s Factum – Page 29, para. 48

[251] The applicant seeks to cross-examine Det. Shennan in the areas outlined in his factum, page 22, paragraph 28. This is not permitted for reasons already provided herein. (See paragraphs 148 to 156 herein)

Applicant’s Factum – Page 29, para. 49 – Re: Issues Arising Pursuant to R. v. Lajeunesse

[252] The applicant proposes that the court direct that Det. Howe not be advised of the nature or content of this application to ensure integrity of evidence called upon in the application. I have ruled on this in a prior oral ruling dated May 9, 2016. However, given my rulings, this request is now moot.

Ruling and Orders Made

[253] The application of the applicant for leave to cross-examine the ITO affiant is dismissed.

Maddalena J. Released: August 26, 2016