COURT FILE NO.: 1876-16

DATE: 20180209

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

James Clark, for the Crown

• and -

GREG MCLAREN GUTHRIE

Paul M. Cooper and Lalitha Ramachandran for Greg Guthrie

RULING

RE: LEAVE TO CROSS-EXAMINE AFFIANT CONSTABLE HARDEEP GIDDA FOR INFORMATION TO OBTAIN SEARCH WARRANT

Fragomeni J.

[1] The Applicant, Greg Guthrie, seeks to exclude evidence seized from his home situated at 202-123 Twenty Fourth Street, Toronto, Ontario, as a result of the execution of a Search Warrant issued on October 27, 2014.

[2] Officer Gidda set out that there were reasonable grounds for believing that the following items would afford evidence of the importations and conspiracy charges:

(a) illegal drugs

(b) drug processing agents and packaging materials

(c) cash

(d) debt list

(e) courier list

(f) travel documents

(g) scales

(h) suitcase/luggage

(i) drug paraphernalia

(j) materials and equipment for fabricating false compartments in suitcases/luggage

(k) electronic storage devices, including computers, flash drives, camera and mobile phones and devices.

[3] The Applicant, Greg Guthrie, seeks leave to cross-examine Constable Hardeep Gidda with respect to the Information to Obtain sworn October 29, 2014.

[4] The Applicant seeks to cross-examine Constable Gidda in the following areas:

1. Surveillance;

2. Misrepresentations;

3. The lack of any connection to the Applicant’s residence;

4. The travel pattern and travel history of the Applicant with specific concern relating to non-disclosure to the issuing justice of the Applicant not being in Grenada at the relevant time of the third importation, namely October 27, 2014.

[5] The Applicant’s position is that there is no reasonable basis to establish that there are reasonable grounds to believe that a search of the Applicant’s residence will locate evidence relating to the three importations and the conspiracy count set out in the Indictment.

[6] The Crown submits that none of the concerns raised by the Applicant would have any impact on the grounds set out in the Information to Obtain and that even in the absence of the impugned paragraphs, the Information to Obtain would have been sufficient for the issuing justice to authorize the warrant.

Test for Leave – Governing Legal Principles

[7] In R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 S.C.C., the Court set out the following at paras. 88 and 89:

With respect to prolixity, I am in favour of placing reasonable limitations on the cross-examination. Leave must be obtained to cross-examine. The granting of leave must be left to the exercise of the discretion of the trial judge. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds.

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

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

As discussed earlier, the Garofoli leave requirement is simply a means of weeding out unnecessary proceedings on the basis that they are unlikely to assist in the determination of the relevant issues. The reason that the test will generally leave just a narrow window for cross-examination is not because the test is onerous - it is because there is just a narrow basis upon which an authorization can be set aside. Hence, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focussed on the question to be determined on a Garofoli review - whether there is a basis upon which the authorizing judge could grant the order. If the proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted. However, if the proposed cross-examination falls within the narrow confines of this review, it is not necessary for the defence to go further and demonstrate that cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization. Such a strict standard was rejected in Garofoli. A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…cross-examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false. (Pires, at para. 41)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[13] In Riley, Justice Dambrot also noted the following at paras. 18 and 23:

18. The applicants assert a desire to explore the reliability of the confidential informants through cross-examination. Once again, this misses the point of the task I must undertake, and the purpose of cross-examination. I must assess the informant information as it is described in the affidavits, not as it might be described by the affiant four years later. It is not open to the applicants to simply pick a relevant category of evidence out of the affidavits and assert a desire to test it through cross-examination. There must be some basis beyond a desire to know more about the content of the affidavit or explore it further to justify cross-examination. The bar for cross-examination is not a high one. But there is some space between the bar and the ground. This argument is premised on there being no bar at all. It provides no basis for cross-examination.

19. Wisdom argues that cross-examination would permit him to ask about the significance of certain pieces of evidence in the affidavits. Undoubtedly it would. But that is not a basis for concluding that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization. There is the possibility in every fishing expedition that helpful testimony will be elicited. But that is not good enough to meet the test for cross-examination on the affidavits. It presumes that the requirement to secure the leave of the trial judge to cross-examine is a pro forma exercise. It is not. Accordingly, this ground provides no basis for cross-examination. I rely once again on R. v. Washington, if authority is needed.

[14] I am satisfied that a limited cross-examination is warranted in the areas identified by the Applicant in his oral submissions. The law is clear that an accused is not entitled to cross-examine the affiant as of right, but should be permitted to do so when there is a reasonable likelihood that the proposed cross-examination would generate evidence discrediting of one or more of the grounds for the issuance of the warrant.

[15] Cross-examination will, therefore, be permitted in the following areas:

Para. 16 - With respect to suspicious activity identified by Cst. Gidda.

Para. 17 – Guthrie was observed handing an unknown male a package at a restaurant. The surveillance notes at Tab E of the Applicant’s Record at 13:16 set out that Guthrie handed a man a large brown paper bag that was very full.

The notes of Cst. McCutcheon make no mention of this bag.

I will permit cross-examination in this area.

Para. 23 - The Information to Obtain states that a pattern of Guthrie’s travel to and from Port of Spain was noted.

I will permit cross-examination with respect to the pattern of travel and travel history relating to Guthrie.

Para. 24-30 - I will permit cross-examination with respect to this surveillance and why the affiant was of the view it was suspicious.

I will also permit cross-examination re: the Affiant’s belief Guthrie was engaged in counter-surveillance techniques.

Paras. 32-37 - Regarding previous authorizations sought, granted or denied with respect to Guthrie’s residence, I will permit cross-examination on this issue.

Para. 56(d) - I will permit cross-examination on the issue of plastic as opposed to paper being noted on surveillance.

Para. 79 - There is no mention of Guthrie never travelling to Grenada. I will permit cross-examination in this area. The October 27, 2014 importation with Grey and Miller related to Grenada. Grey stated she had been to Grenada on three occasions.

Paras. 80-81 - I will permit cross-examination with respect to the affiant’s belief that there are reasonable grounds to believe that a search of Guthrie’s residence will afford evidence supporting the counts on the indictment.

[16] The Applicant will be limited to these areas of cross-examination as identified by him in his oral submissions and as permitted by this ruling.

Fragomeni J.

Released: February 9, 2018

COURT FILE NO.: 1876-16

DATE: 20180209

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

and –

GREG MCLAREN GUTHRIE

RULING

RE: LEAVE TO CROSS-EXAMINE

AFFIANT CST. HARDEEP GIDDA FOR

INFORMATION TO OBTAIN SEARCH WARRANT

Fragomeni J.

Released: February 9, 2018