R. v. Belleus, 2016 ONSC 6509

R. v. Belleus, 2016 ONSC 6509

CITATION: R. v. Belleus, 2016 ONSC 6509

COURT FILE NO.: 13-M7873

DATE: 2016/10/21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

– and –

MICHAEL BELLEUS

Applicant

Matthew Geigen-Miller and Fara Rupert, for the Respondent/Crown

Anne London-Weinstein, for the Applicant/Accused

HEARD: In writing

RULING WITH RESPECT TO APPLICATION FOR LEAVE TO CROSS-EXAMINE THE AFFIANT

PHILLIPS J.

1Michael Belleus is charged with the first degree murder of Levy Kasende, which is alleged to have occurred on August 25, 2012. Presently, Mr. Belleus applies for leave to cross-examine the affiant who swore an Information to Obtain a warrant authorizing the interception of private communications. As well, Mr. Belleus applies for leave to cross-examine another affiant who swore an ITO with respect to a general warrant.

The Authority to Grant Leave to Cross-Examine an Affiant

2The authority for leave to cross-examine the affiant on a search warrant or wiretap authorization is found in the Supreme Court of Canada’s decision of R. v. Garofoli and its progeny. The Court in Garofoli made clear that there is no automatic right to cross-examine a wiretap affiant:

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 cross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions 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.

R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421 at paras 88-89

3The statutory preconditions to the issuance of the wiretap authorizations granted in this case are found in section 186 of the Criminal Code:

186(1) An Authorization under this section may be given if the judge to whom the application is made is satisfied;

(a) that it would be in the best interests of the administration of justice to do so; and

(b) that other investigative procedures have been tried and failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

4The phrase “best interests of the administration of justice” in section 186(1)(a) has been judicially interpreted as requiring that the authorizing judge be satisfied that there are reasonable and probable grounds to believe that an offence has been or is being committed and that the authorization will elicit evidence of that offence.

R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421 at para 33

R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 SCR 30 at para 24

5The statutory preconditions for the issuance of a general warrant are found in section 487 of the Criminal Code. Generally speaking, those preconditions are the same as with section 186, except that they do not involve considerations of investigative necessity.

6Accordingly, the test for leave to cross-examine can be summarized as follows:

A basis must be shown by the accused that the cross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions, that is:

a) reasonable and probable grounds to believe that an offence has been or is being committed;

b) the authorization will elicit evidence of that offence; and

c) with respect to a s.186 warrant only: investigative necessity as set out in section 186(1)(b) of the Criminal Code.

7All the while, the Court must be alive to issues relating to the confidentiality of any police informants, as well as reducing undue prolixity by maintaining a focus on relevance and materiality. As well, it must be kept in mind that the task is a discrete one, involving determination of the appropriateness of cross-examination of affiants and not determination of the validity of the warrants themselves.

The Applicant’s Position

8Mr. Belleus’ arguments are multifaceted to say the least. His written submissions contain a myriad of complaints about the way both affiants characterized the investigation to the issuing Justice (mostly on the part of Detective Benson). At the risk of mixing metaphors, I will say that I have done my best to separate the wheat from the chaff and will focus only on those areas where it could be reasonably argued that cross-examination is likely to bear relevant fruit. This triage function is necessary because, in my view, most of the Applicant’s submissions have less to do with the likely relevance of potential cross-examination, than with a sort of dry-run of the Garofoli application itself. Of course, I will hear all arguments in due course when I decide the ultimate validity of the warrants. For present purposes, however, I shall focus on whether the Applicant has shown it to be likely that any cross-examination on any particular headings will provide any relevant evidence beyond what is already available on the record tending to discredit the existence of one of the preconditions to the authorization.

9As I see it, the Applicant proposes cross-examination on these arguably allowable subjects which are entitled to careful consideration:

(a) that cross-examination of Detective Benson with respect to his note-taking abilities will likely provide evidence relevant to his credibility and reliability as an investigator and informant;

(b) that cross-examination of Detective Benson will likely elicit evidence about the extent to which he mischaracterized the evidence of Ms. Sarah Labib, in particular whether Mr. Belleus could be said to be the only suspect when her evidence is considered reasonably and in its totality;

(c) that cross-examination of Detective Benson will likely elicit evidence that he attributed incorrect information to Ms. Kayla Lalonde, including whether she described people involved in the murder as a close-knit community;

(d) that cross-examination of Detective Benson will likely elicit evidence that he failed to adequately describe how the telephone number 613-617-2988 was received from Natalie Daniels;

(e) that cross-examination of Detective Benson will likely elicit evidence that he failed to adequately describe the circumstances of the photo identification of “Tyson” by Roch Leduc;

(f) that cross-examination of Detective Benson will likely elicit evidence that he failed in his duty to give a full and candid account when he described both Roch Leduc and Natalie Daniels as mere drug users and not crack cocaine addicts;

(g) that cross-examination of Detective Benson will likely elicit evidence that he mischaracterized the evidence of Ms. Dayna Majeau about whether the driver of the van was also the shooter; and

(h) that cross-examination of Detective Benson will likely elicit evidence about interpretation of call log dated February 8, 2012 between Mr. Fara Mohamed and the automatic recording device at Mr. Bienvenue’s number that would test the logical premises of the conclusion that Mr. Bienvenue was involved with the murder weapon.

10There are many other arguments advanced by the Applicant in his submissions. In my view, however, that remainder consists of assertions that fall below a minimal threshold; they are not propositions about which it could reasonably be contemplated that cross-examination of either affiant would elicit any evidence relevant to the ultimate Garofoli hearing. For example, the appropriateness of the drawing of adverse inferences from behavior possibly based on the voodoo belief system is an argument that can be advanced, but it is not one which would be enhanced by any cross-examination. Equally, whether use of the term “fuck boy” means that the declarant knows the person so described is an argument unlikely to be enriched by cross-examination of anyone.

The Crown’s Position

11The Crown argues that no cross-examination should be allowed on any subject.

Analysis

12I shall deal with the Applicant’s primary arguments in the order that I have set them out, above:

(a) Police officers have a duty to prepare accurate, detailed and comprehensive notes as soon as practicable during and after an investigation. In some cases, cross-examination of an affiant on the breadth and quality of his notes could be necessary to meaningfully give effect to the right to make full answer and defense. The nature of the notes compiled by an officer can be relevant to his reliability and credibility.

I have reviewed the alleged deficiencies with respect to Detective Benson’s notes outlined in the non-exhaustive list at Appendix “A” of the Applicant’s written submissions. I have also considered the important fact that for the overwhelming majority of the content of the ITO, Detective Benson was speaking as a file coordinator or informational conduit with respect to the work of others. That is to say that Detective Benson was primarily relating the work of others and explaining what that independent body of work meant to him. In my view, note taking on his part is of diminished importance in this context.

I conclude that cross-examination with respect to Detective Benson’s note-taking shall be allowed, but only with respect to his direct involvement in the police attempts to contact Mr. Belleus. That specific subject is relevant to the question of whether Mr. Belleus was indeed on the run, or otherwise difficult to locate and, as such, I will allow limited cross-examination on it as it relates, even if tangentially, to some of the preconditions of the authorization – to wit, the existence of reasonable and probable grounds and possibly investigative necessity.

I have not, however, been persuaded that more general cross-examination of Detective Benson on his note-taking with respect to the remainder of his investigative conduct would likely result in any relevant evidence. I fail to see how the presence or absence of notes would bear on the reasonableness of those of Detective Benson’s conclusions in the ITO which are explicitly attributed to the work of his colleagues. Accordingly, I decline to authorize general cross-examination on Detective Benson’s notes beyond his attempts to contact Mr. Belleus. I do not see a strong enough link between that general subject and the preconditions to the authorization. Such cross-examination would add to prolixity of the proceedings without adding value anywhere else.

(b) I have also been persuaded that cross-examination of Detective Benson should be allowed on the subject of whether he fairly conveyed Ms. Labib’s evidence on the subject of whether Mr. Kasande felt fear of Mr. Belleus, or whether he equally felt that way in respect of others too. In addition, I agree that cross-examination should occur with respect to the difference between “his friend did it” and “Mills asked his friend to do it” as outlined in the Applicant’s submissions.

While not every fact needs to be mentioned in an affidavit presented for judicial authorization, factors which bear on the target of the warrant being the only suspect are material to the issues which a justice reviewing an application for a warrant must determine. Arguably, full and frank disclosure by the affiant could have revealed that protection was sought by Mr. Kasende not just from Mr. Belleus but from a number of people who might have been a threat. As such, cross-examination on this subject shall be allowed as it could elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization, as for example, reasonable or probable grounds or that the authorization will elicit evidence of the offense.

(c) I have not been persuaded that cross-examination of Detective Benson will likely elicit evidence of sufficient relevance on the subject of whether he attributed incorrect information to Ms. Kayla Lalonde. In my view, that is an argument that can be made on the evidentiary record that presently exists. It is unlikely that any cross-examination will supplement that record enough to warrant it. In any case, the alleged deficiencies with respect to Detective Benson’s treatment of Ms. Lalonde’s evidence are of such little weight that cross-examination on them would be unlikely to have any potential to discredit the existence of one of the preconditions to the authorization.

(d) I have not been persuaded that cross-examination of Detective Benson will likely elicit evidence of sufficient relevance on the subject of precisely how the 613-617-2988 phone number was received from Nathalie Daniels. The way in which that information came into the hands of the police is well described in the disclosure. The argument that Detective Benson failed to give a full and candid account in describing things the way he did is therefore available on the record as is. In my view, it is unlikely that any cross-examination will meaningfully supplement that record. In any event, I cannot conceive that the fact that Detective Benson did not mention the precise mechanism by which the phone number was communicated to the police would be a subject on which cross-examination could elicit testimony tending to discredit the existence of one of the preconditions to the authorization.

(e) I have not been persuaded that cross-examination of Detective Benson will likely elicit evidence of sufficient relevance on the subject of the photo identification of “Tyson” by Roch Leduc. In fact, it would appear that the Applicant’s position in respect of that photo identification process arises chiefly out of a transcription error. In any event, while argument can be made in respect of it at the ultimate Garofoli hearing, on the present evidentiary landscape there is no point in cross-examination as it is so unlikely to add anything to the mix. I foresee a similar inability to make any hay out of Mr. Leduc’s evidence of whether Mr. Belleus drove the van away or followed in his car. In my view, those subjects simply could not matter to the existence of one of the preconditions to the authorization.

(f) I have not been persuaded that cross-examination of Detective Benson will likely elicit evidence of any relevance on the subject of the description of both Roch Leduc and Natalie Daniels as mere drug users and not crack cocaine addicts. Certainly, that is an argument that can be made down the line. However, in my view, cross-examination of the affiant will add nothing to the Court’s forthcoming assessment of the merits of that argument.

(g) I have been persuaded that cross-examination of Detective Benson will likely elicit relevant evidence on whether he mischaracterized the evidence of Ms. Dayna Majeau about whether the driver of the van was also the shooter. I permit cross-examination as to how Detective Benson came to the content of his ITO on that subject given the content of Ms. Majeau’s evidence. That issue, even if perhaps only in combination with others, could tend to discredit the existence of one of the preconditions to the authorization as for example, the existence of reasonable and probable grounds.

(h) I have been persuaded that cross-examination of Detective Benson will likely elicit relevant evidence on the subject of how he interpreted communications between Mr. Fara Mohamed and the automatic recording device at Mr. Bienvenue’s number. I accept defense counsel’s submission that such cross-examination could test the logical premises of Detective Benson’s conclusion that Mr. Bienvenue was involved with the murder weapon. While this point is perhaps not much if viewed in isolation, the right to full answer and defense should include the ability to chase down threads which could if interwoven with others amount to evidence tending to discredit the existence of one of the preconditions to the authorization.

(i) I have been persuaded that cross-examination of Detective Benson should be allowed on the subject of investigative necessity with respect to the ITO dated April 2, 2013. In particular, I allow cross-examination with respect to why efforts were not made to seize a firearm from Fara Mohamed as I agree that securing the firearm could have provided meaningful evidence and that cross-examination on that subject could elicit testimony tending to discredit the existence of one of the preconditions to the authorization. I decline the Crown’s invitation to speculate about the reasons for the police failure to further investigate or otherwise act on this lead. That said, counsel are advised that should the answer(s) under this heading tread into identification of any confidential informant, the appropriateness of cross-examination will be re-assessed. For what it’s worth, as I now see it, the value of the potential information is nowhere close to warranting infringement on informer privilege (of course I could be persuaded otherwise).

13I shall close by reiterating that I have been focused solely on the subject of whether cross-examination of the affiant should be allowed. I should not be taken to have any opinion with respect to the merits of the Garofoli application itself. In that respect, I note again that the arguments outlined in the Applicant’s submissions that I have not touched upon remain available to him notwithstanding whatever decision I made herein on the discrete subject of cross-examination of the affiant.

14I shall also indicate that I have decided to defer my decision with respect to proposed cross examination of Detective Taillefer until the completion of Detective Benson’s evidence. It seems to me that an assessment of whether cross-examination of her will elicit testimony tending to discredit the existence of one of the preconditions to the authorization she swore an ITO for is best done after hearing from Detective Benson as she appears to have based many of her conclusions on his conclusions. In any event, I am informed that no evidence was obtained by the police as a result of the general warrant obtained by Detective Taillefer.