COURT FILE NO.: 818/17
DATE: 2019 03 18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
S. Stackhouse, for the Crown
- and -
DEMETRE HIBBERT AND RAQUEL WILLIAMS
M. Luft for Demetre Hibbert and M. Salih for Raquel Williams
HEARD: February 19, 2019
RULING ON APPLCIATION FOR LEAVE TO CROSS-EXAMINE THE AFFIANT ON THE ITO
Dennison J.
Overview
[1] The applicants seek leave to cross-examine PC Sherwin, the affiant of the Information to obtain the search warrants. They seek to challenge the issuance of the warrants that were executed at 107-7340 Goreway Drive, Mississauga, Ontario; 201-8 Newhaven Manor, Brampton; and a 2007 BMW with Ontario Licence plate BZLK466.
[2] Briefly, by way of background, Mr. Hibbert was charged on March 10, 2017 with a number of offences relating to the possession of a firearm. It is alleged that Mr. Hibbert was involved in a drive by shooting on December 2, 2016. Search warrants were executed in relation to that investigation and a firearm was located in the BMW.
[3] Ms. Williams resided at 201-8 Newhaven Manor, Brampton. As a result of the search of that apartment, Ms. Williams was charged with possession of marijuana, possession for the purpose of trafficking in methamphetamines and possession for the purpose of trafficking in heroin.
[4] At this point in the proceedings, the Crown seeks to argue that the issuing justice could have authorized the search warrants without relying on the redacted material in the Information to Obtain (“ITO”) pursuant to step five in a Garofoli application. The redacted information relates to information received from a confidential informant (“CI”) that was mainly contained in Appendix “D” to the ITO. The applicants seek leave to cross-examine the affiant at this stage.
[5] I was appointed as the case management judge pursuant to s. 551.1 of the Criminal Code, R.S.C., 1985, c. C-46 for the purpose of the pre-trial Charter applications. Previously, I ordered that a judicial summary of the redacted material be provided to the applicants pursuant to an application under step two of the Garofoli application. In addition, the applicants were provided with a judicial summary of any differences that existed between three drafts of Appendix “D”. The applicants also bought an application for disclosure of the handler’s note relating to the CI, which I dismissed.
The Test for Leave to Cross-Examine
[6] Cross-examination of an affiant of a search warrant is not an absolute right. Leave to cross-examine must be obtained. Leave should be granted where it is necessary to enable the applicants to make full answer and defence. The test for granting leave to cross-examine an affiant was explained by the Supreme Court of Canada in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at paras. 88 and 89:
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.
[7] The requirement for leave to cross-examine an affiant to challenge the issuance of a search warrant is based on three principles. First, it ensures that the cross-examination will be relevant. Second, it recognizes that cross-examination creates a risk of inadvertently identifying a CI and third, it precludes unnecessary delays and waste of court resources: see World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 127.
[8] The threshold for granting leave to cross-examination is not onerous. It requires the applicants to demonstrate that there is a reasonable likelihood that the cross-examination will assist the court in determining whether there is a basis upon which the authorizing judge could grant the order. As explained by the Supreme Court of Canada in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 SCR 343, 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 focused on the question to be determined on a Garofoli review — whether there is a basis upon which the authorizing judge could grant the order. 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] A bald assertion that the cross-examination will illicit helpful information is not sufficient. The applicants must provide a “reasonable possibility” or “reasonable likelihood” that it would assist. There is, however, no requirement that the applicants prove that the cross-examination will actually assist: see R. v. Pires, at para. 60; R. v. Jacobson, [2004] O.J. 649 (Ont. S.C.), at paras. 7-8; R. v. Garofoli, at paras. 81 and 90; R. v. Washington, 1997 3968 (ON CA), [1997] O.J. No. 4163 (C.A.), at paras. 10-11.
[10] Cross-examination of an affiant may be relevant to a number of areas in challenging the issuance of a search warrant. For example, cross-examination may be directed at the credibility or reliability of an informant. That is not at issue in this stage of the Garofoli application. Cross-examination may also be used to try to show that the affiant knew or ought to have known that some of the information was not credible or reliable: see Garofoli, at para. 41. In other instances, cross-examination relating to the affiant’s own credibility that is material to establish the statutory preconditions for the issuance of the warrant is warranted: R. v. Lachance, 1990 53 (SCC), [1990] 2 S.C.R. 1490. The insufficiency of the ITO on its face, such as where there is the use of conclusory language, may also be a basis to permit cross-examination where it is reasonably possible that cross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions to the issuance of the search warrant: R. v. Williams (2003), 2003 18484 (ON CA), 181 C.C.C. (3d) 414 (Ont. C.A.).
[11] In R. v. Ngo, 2011 ONSC 6676, at para. 34, Hill J. provided some helpful guidelines to apply when considering the validity of search warrants. These principles are helpful to keep in mind when assessing if leave to cross-examine should be granted:
(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), 1999 3694 (ON CA), 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 5765 (ON CA), [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), 1991 984 (BC CA), 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), 1973 1488 (ON SC), 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), 1994 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont. Ct. Gen. Div.), at p. 364; Re Chapman and the Queen (1983), 1983 3587 (ON SC), 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. A.-G. for New Brunswick (1991), 1991 50 (SCC), 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)
[12] In considering whether cross-examination is appropriate, the likely effect of the cross-examination must be considered in light of the affidavit as a whole. This is, however, a separate and distinct issue from the ultimate question of whether the authorization is valid. As such, the judge cannot decide whether cross-examination is appropriate by finding that other parts of the ITO would support the issuance of the search warrant. Rather, the focus is on “the likely effect of the proposed cross-examination and on whether there is a reasonable likelihood that it will undermine the basis of the authorization”: see R. v. Pires; R. v. Lising, at para. 69.
Analysis
[13] The applicants raise three areas that they wish to cross-examine the affiant on in relation to his ITO in support of the search warrants:
A. Cross-examination establishing contradictory or misleading information;
B. Cross-examination probing the validity of conclusory statements;
C. Cross-examination to undermine the subjective grounds for the warrant.
[14] In support of their arguments seeking leave to cross-examine the affiant, the applicants rely upon the ITO, the notes of PC Sherwin and an email from PC O’Connor to PC Sherwin about information from a CI.
[15] In this application, the applicants provided a helpful chart that sets out the various areas that they seek leave to cross-examination the affiant and on what basis that say leave should be granted. I will deal with each category raised by the applicants and the specific issues the applicants raised below. I have structured my reasons to mirror the chart provided by the applicants as much as possible so it is clear to the parties where cross-examination of the affiant is and is not permitted.
A. Cross-examination regarding contradictory or misleading information
[16] Under this category, the applicants seek leave to cross-examine the affiant to show that aspects of the ITO are deliberately misleading, contain omissions or are inaccurate to demonstrate that the conduct of the affiant was subversive such that the warrant should not be upheld, even if sufficient grounds existed to grant the authorization: R. v. Debartolo, 2018 ONSC 916, 406 C.R.R. (2d) 216, at para. 19; see also R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321. The applicants raise fourteen issues under this category which are addressed below.
1. Boiler plate language at the start of the ITO
[17] The applicants seek leave to cross-examine the affiant about whether he drafted the opening part of the ITO himself or took the information from other ITOs. The applicants submit that cross-examination in this area will demonstrate whether PC Sherwin understood his role as an affiant and his role to be full, fair and frank.
[18] I fail to see how this cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization or assist in demonstrating that the warrant should not have been issued based on the conduct of the affiant. The issue in reviewing the issuance of the search warrant is whether the affiant was full, fair and frank in the ITO, not what he understood his role to be. Leave is not granted to cross-examine on this point.
2. Zariah Lewis information
[19] The applicants make several submissions with respect to how the information that Zariah Lewis provided to the affiant is stated in the ITO.
a. Failure to advise the Justice of the Peace (“JP”) of the source of Lewis’ information that the shooter’s nickname as “Meechie”
[20] The applicants submit that the failure of the affiant to provide the source of Lewis’ information that the shooter’s nickname was “Meechie” creates the impression that this was first-hand information. Paragraph 10(b) of the ITO states “Zariah believed that the suspect has a nickname of ‘Meechie’”.
[21] I do not find that that it is reasonably possible that cross-examination on this issue will illicit evidence that would undermine one of the pre-conditions for the issuance of the warrants, including that this was misleading. This is an argument to be made at the Garofoli application, not in cross-examination.
[22] In R. v. Riley (2008), 182 C.R.R. (2d) 89 (Ont. S.C.), at paras. 10-11, Dambrot J. explained that the lack of sourcing, when it relates to confidential informant information contained in the ITO, does not provide a basis for cross-examination but rather is an argument on the Garofoli application. As Dambrot J. explained;
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.
[11] 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.
[23] The same analysis applies to the summary of this witness’ evidence in the ITO. The lack of specificity in the wording in the ITO is an argument that may be made at the Garofoli application based on the ITO. In addition, the applicants have not demonstrated that there was a reasonable possibility that the affiant was attempting to mislead the issuing justice. Leave to cross-examine on this issue is denied.
b. Misrepresentation about what Lewis told the affiant about driving past the apartment building and what is stated in the ITO
[24] PC Sherwin’s notes state that Lewis told him that Brandon, her boyfriend, had driven past the building and seen Meechie a couple of times. The note states that she went by today with Brandon to get him to show her the car, but it was not there. The ITO states that Ms. Lewis had driven past an apartment building since the shooting and observed the suspect vehicle parked in front of the building.
[25] As noted by the Court of Appeal in R. v. Reid, 2017 ONCA 430, at para. 17, “simply pointing to omissions, inconsistencies, or conclusory or inaccurate statements is not a sufficient basis to permit cross-examination”. The applicants have pointed to nothing to suggest that there was a reasonable possibility this error was deliberate. I also fail to see how cross-examination on this point could impact the preconditions for the issuance of the authorization.
[26] In this case, the applicants have not shown that it is reasonably possible that cross-examination will elicit evidence that will tend to discredit one of the preconditions for the authorization or will tend to show the affiant was deliberately misleading. Cross-examination on this point is not permitted.
c. Failure to advise source of information from Lewis that the shooting was in relation to a feud between two gangs
[27] The ITO states that Lewis “believed that the shooting was in relation to a feud between two gangs” – the “Ave” boys and the “MGB”. During the confrontation in the vehicle she was in, Lewis heard the shooter say “are you repping the Ave boys?” For the same reasons with respect to 2a), I do not find that there is a reasonable possibility that cross-examination will illicit evidence that will assist in challenging the issuance of the search warrant, or will assist in demonstrating that there was a material omission or falsehood. In this particular example, Lewis heard the shooter talk about gangs. Any argument about the source of this information can be made in the argument on the Garofoli application. Cross-examination is not permitted on this point.
d. Failure to advise Lewis’ source of information that MBG group lives in the building across from MacDonald’s
[28] The applicants make a similar argument that the failure to advise the JP of Lewis’ source of information that the MBG group lived in the building across from the McDonalds at Derry Road and Goreway Drive in Mississauga is misleading and that cross-examination should be granted. For the same reasons as set out in 2a), I find that there is not a basis to grant leave to cross-examine the affiant on this point.
e. ITO does not include the information that Lewis provided regarding the name of the shooter
[29] I agree with the applicants that there is a reasonable possibility that cross-examination on the fact that the ITO did not contain information from Ms. Lewis that that the shooter’s name was Mendell or Manzell would tend to discredit one of the preconditions to the authorization. There is no evidence that Mr. Hibbert went by either of these names, so this information tends to point to someone else as the shooter which would be relevant to the sufficiency of the grounds to issue the warrant. Cross-examination is permitted on this issue.
f. Lewis described the shooter as having a tear drop tattoo under his left eye. Mr. Hibbert does not have this tattoo but this is not stated in the ITO
[30] I do not agree with the applicants’ submission that cross-examination as to why the officer did not explicitly state that Mr. Hibbert did not have a tear drop tattoo under his eye is reasonably likely to elicit testimony that would tend to undermine the prerequisites for the issuance of the warrant or show a deliberate or material omissions that would undermine the issuance of the warrant. While Lewis describes the shooter as having a tear drop tattoo, the ITO also contains a description of Lewis. Paragraph 21(e) of the ITO states that a PTQ check listed Mr. Hibbert as a black male, 23 years old, approximately 5’8” with a brush cut. The police records do not describe him as having a tattoo under his eye. There is no basis to find that the ITO is misleading in describing Mr. Hibbert. The fact that the ITO does not state that Mr. Hibbert does not have a tear drop tattoo under his left eye may be a weakness in the ITO that the applicant may raise on the Garofoli application. It is not a basis upon which to grant leave to cross-examine.
g. Surveillance did not corroborate hair style described by Ms. Lewis
[31] Ms. Lewis described the shooter as having dreads down to his temple. The applicants seek to cross-examine on the fact that the ITO does not state that surveillance did not corroborate Ms. Lewis’ description of the shooter’s hair. I do not see how cross-examination will illicit information that would assist in undermining any of the pre-conditions for the issuance of the warrant, including that the affiant was deliberately misleading in the ITO. As noted above, the ITO provides a description of Mr. Hibbert. In addition, there is a great deal of surveillance information that provides observations of Mr. Hibbert. The fact that the ITO does not state that surveillance did not corroborate Ms. Lewis’ description of the shooter’s hair may be argued as a weakness in the ITO on the Garofoli application. It is not a sufficient basis to grant cross-examination.
3. Affiant omits information that he received from Tyler Edwards that Mr. Edwards is not in a gang
[32] I do not find that there is a reasonable possibility that cross-examination on the fact that the affiant did not include Tyler Edward’s statement to police that he was not in a gang will illicit evidence that would tend to undermine any of the pre-conditions to the issuance of the warrant, including assisting in demonstrating that the omission was deliberate. The information contained in the ITO makes it clear that the police believed that Mr. Edwards was lying about how he was shot. There was no requirement for the affiant to include all of the information received from Mr. Edwards, particularly if he did not believe the information. What was relevant to the issuance of the warrant was that Mr. Edwards attended the hospital with a gunshot wound shortly after there was a report to police of a shooting.
4. Affiant omits from ITO that he received an email from Constable O’Connor that contained information from a CI
[33] This email states that PC O’Connor received a call from an informant that “your shooter is Tyree Fuller Johnson and Demetre Hibbert” and asks for the affiant to call him. The applicants submit that the omission of this information in the ITO violates the affiant’s duty to be full, fair and frank.
[34] Again, I fail to see how it is reasonably possible that cross-examination on this issue would assist in discrediting one of the preconditions for the issuance of the search warrant and there is no basis to assert that the omission was deliberate. Moreover, if the CI information was not credible, then the affiant should not have relied upon the information he provided. If the information was credible, it would provide further grounds to justify the issuance of the warrants as it provides further information of Mr. Hibbert’s involvement in the shooting. The fact that another person was also involved would not detract from the grounds to issue the warrants. Cross-examination is not permitted on this issue.
5. ITO states that Mr. Hibbert has “recently” been seen with a satchel and this is misleading
[35] The applicants submit that it is misleading to state in the ITO that Mr. Hibbert was “recently” seen with a satchel. I disagree. A line by line or word by word dissection of the ITO is not appropriate. The whole paragraph states: “Demetre has been observed recently carrying a satchel (See E-29-c and E-14-c) with him”. These references take the reader back to portions of the ITO that state that Demetre was observed carrying a satchel on December 9th and December 13, 2016. The use of term “recently” may viewed as a shortcoming in the drafting of the ITO but it does not provide a basis to grant leave to cross-examine on this point as it not reasonably possible that cross-examination will illicit evidence that would assist the court in finding the affiant was trying to mislead the issuing justice.
6. Use of the word “Investigators” in ITO
[36] The applicants seek to cross-examination the affiant as to whether his reference to the term “investigators” in the ITO. They submit that the language of the affiant is misleading, as the affiant is trying to suggest to the issuing justice that his own belief is more widely held by “investigators”.
[37] The applicants pointed to paragraph 35 of the ITO as an example. That paragraph states that Khadeem Brown-Ramkisson was interviewed by police and he said that he was with his close friend Demetre Brown. He described Demetre as 23 years old with a birthday in October who drives a four door grey BMW. Khadeem stated that Demetre lives with his girlfriend in Brampton. It then states that “Investigators believe that Demetre Brown is in fact Demetre Hibbert.”
[38] The applicants state there is nowhere in the affiant’s notes that he state that he believes Demetre Brown is Demetre Hibbert and it is reasonably possible that cross-examination on this issue will tend to demonstrate that the affiant was deliberately trying to mislead the issuing justice. I disagree. The applicants have pointed to nothing to suggest that the affiant was trying to mislead the issuing justice. There were other investigators involved in this investigation. The affiant would have considered the views of other investigators to forming his grounds in support of the issuance of the search warrants.
[39] The applicants may argue that the words used are a shortcoming in the drafting of the ITO which may be raised in the Garofoli application but there is no reasonable possibility to that this will illicit evidence that tends to show that the affiant was deliberately misleading the issuing justice.
7. Omission about the February 25, 2017 Victory Court shooting
[40] The applicants seek to cross-examine the affiant on the summary of the information contained in the ITO in relation to the shooting on February 25, 2017. They assert that the affiant was misleading the issuing judge by not including the fact that Demetre Hibbert/Brown was not in the residence at the time of the shooting; that Mr. Tyree Johnson Fuller was seen at Victory Court walking with Mr. Hibbert on February 25, 2017; that the witness Khadeem stated there would be no reason for anyone to have an issue with Demetre Brown; and that Mr. Brown works.
[41] They submit that it was misleading not to include this information and for the affiant to then go on and state that “investigators believe that Demetre Hibbert was the real target of the shooting and that it was done in retaliation for the shooting on December 2, 2016 (See E-35-e, E-35-f.).”
[42] As noted previously, there is no requirement that the affiant put in every piece of evidence in the affidavit. In addition, there should not be a word by word dissection of the information contained in the ITO. The applicants have not pointed to any basis to assert that the affiant was trying to mislead the issuing justice, particularly when paragraph E-35-e and E-35-f are read along with the other information in the ITO. These paragraphs state:
E. On February 25, 32017 at approximately 1:15 am, shots were fired into the residence located at 3234 Victory Crescent, Mississauga. Investigators located multiple pullet holes in the front window of the house. Inside the house were 4 occupants including Khadeem Brown-Ramkisson and Jahlania Brown-Ramkisson (See E-2—b)
F. On February 25, 2017 Constable Paschalis #3045 interviewed Khadeem Brown-Ramkisson in relation to the shooting in his residence. Khadeem advised that prior to the shooting he was out with his close friend Demetre Brown. He described Demetre as 23 years old, has a birthday in October and drives a 4 door grey BMW. Khadeem state that Demetre lives with his girlfriend in Brampton. Investigators believe that Demetre Brown is in fact Demetre Hibbert.
[43] The paragraph does not suggest that Mr. Hibbert was in the house at the time of the shooting. It states that Mr. Hibbert was with Khadeem Brown prior to the shooting. I do not find that it is reasonably possible that cross-examination regarding the omitted information would tend to discredit one of the preconditions to the authorization or would tend to show that the affiant was trying to mislead the issuing justice. Whether or not the inference made by the affiant was reasonable based on the information contained in the ITO is a matter the applicants can raise on the Garofoli application. Cross-examination is not permitted on this issue.
8. Assertion that Mr. Hibbert is entrenched in criminal lifestyle in the ITO
[44] The applicants seek to cross-examine the affiant on the basis that the ITO creates a misleading impression that Mr. Hibbert is entrenched in a criminal lifestyle. They point out that the ITO does not state that Mr. Hibbert does not have a criminal record and does not state that, despite surveillance being conducted over a number of days, Mr. Hibbert was never observed committing a criminal offence. The applicants state that it is misleading to state that Mr. Hibbert is engaged in a criminal lifestyle.
[45] I do not find that cross-examination is reasonably likely to illicit evidence that will tend to undermine one of the pre-conditions of the issuance of the warrants, including whether the affiant made deliberate omissions to mislead the issuing justice.
[46] The ITO defines the Canadian Police Information Centre (“CPIC”) database and states that it includes information about persons currently charged with offences, persons on probation or prohibition orders and criminal records of convicted persons. The affiant states at paragraph 22 of the ITO that he conducted a CPIC check and learned that Demetre Hibbert is currently accused of criminal charges relating to possession of a controlled substances and filing to comply with a recognizance. He was released on a recognizance. While the affiant does not specifically say that Mr. Hibbert does not have a criminal record, the affiant stated what he learned from CPIC which contains criminal convictions: see Paryniuk. Cross-examination is not permitted on this basis.
[47] Similarly, while the affiant does not explicitly state that Mr. Hibbert is not seen engaged in criminal activity, the ITO goes through, in detail, the surveillance that the police conducted and the summary of that evidence does not overstate what police observed.
[48] The ITO also includes other information that suggests that Mr. Hibbert is involved in a gang, which supports the affiant’s inference that Mr. Hibbert is engaged in a criminal lifestyle.
[49] Any argument about overstating Mr. Hibbert’s involvement in a criminal lifestyle may be made based on the ITO as it currently reads. There is no basis to grant leave to cross-examine on this point.
9. Reason for not executing the search warrant in January 2017 when Mr. Hibbert was out of the country
[50] The applicants submit that they should be granted leave to cross-examine the affiant with respect to why the warrant was not executed in January 2017 given that, months later, the affiant stated that the firearm would still be in Mr. Hibbert’s possession.
[51] I fail to see why the reasons the search warrant was not executed in January will likely assist in determining whether the pre-conditions for the issuance of the warrant in March are satisfied. What is relevant is whether the affiant had reasonable grounds to believe at the time the warrant was issued in March 2017 that Mr. Hibbert would still be in possession of the gun, not why the police did not execute the warrant in January. Cross-examination on this issue is not permitted.
10. Reference to Mr. Hibbert being in possession of “a firearm” after describing “the firearm”
[52] The applicants seek to cross-examine the affiant about the use of the words “a firearm” and “the firearm” that are referred to in the ITO as they say it is unclear which firearm the police are searching for. The warrant was issued for the purpose of searching for evidence in relation to the commission of the offence alleging that the Mr. Hibbert discharged a firearm contrary to s. 244(1) of the Criminal Code, R.S.C., 1985, c. C-46 on December 2, 2016. As noted by Hill J. in Ngo, at para. 34, “[p]olice officers are not legal draftspersons and cannot, in an ITO, be expected to ‘spell out things with the same particularity of counsel’”.
[53] I do not find that there is a reasonable possibility that cross-examination on the use of the term “a firearm” versus “the firearm” would undermine one of the pre-conditions for the issuance of the warrants, particularly if the affiant was attempting to mislead the issuing justice. Cross-examination is not permitted on this issue.
[54] The applicants also stated that they should be permitted to cross-examine the affiant on the basis that he repeatedly states that Mr. Hibbert is currently in possession of a firearm. I will address this issue under the second and third categories for which they seek cross-examination, as it is more appropriately addressed there.
11. Comparison of images from Tim Horton’s security camera and surveillance photo of Mr. Hibbert’s vehicle
[55] The applicants submit that the affiant’s statement that he believes the vehicle shown on Tim Horton’s video surveillance footage from the day of the shooting is Mr. Hibbert’s vehicle is misleading as he does not describe how far away the vehicle was in the video surveillance tape, nor does it say where the cameras were.
[56] The affiant’s conclusion that the vehicle is the same is found in paragraph 18, which states:
On Friday December 16, 2016 I compared the video surveillance of the second vehicle (see E-17-c) with the surveillance photo taken (see E-16-c) of Demetre Hibbert’s silver BMW and believe them to be the same vehicle.
[57] In reading this paragraph, one must refer back to the paragraphs the affiant explicitly references – paragraphs 16 and 17. These paragraphs state:
E-16-C: I reviewed the surveillance photo taken of the silver BMW bearing Ontario plate BZLK466. The vehicle is a silver 4 door car with dart window tinting and dark coloured wheels and rims. The vehicle has a unique vehicle skirting.
17 The affiant states that he reviewed the video surveillance from Tim Horton’s located at 3650 Derry Rd. East, Mississauga. He reviewed the video surveillance and learned the following:
a. The exterior video camera captures eastbound Derry Rd east in front of the business. The victim vehicle is believed to have travelled through this area.
b. On December 2, 2016 at approximately 4:29 pm (directly prior to the shooting) the victim vehicle is observed driving east on Derry Rd. Directly beside the victim vehicle is another vehicle driving with the passenger window open. It appears as though there is some sort of communication occurring between the two vehicles.
c. The second vehicle is described as a silver car with dark wheels and rims and dark window tinging. There also appears to be vehicle skirting on the car.
[58] Having regard to the wording of the relevant paragraphs, I do not find that there is a reasonable possibility that cross-examination about information about the Tim Horton’s video surveillance tape that was not included in the ITO would assist in undermining the preconditions for the issuance of the warrant, including demonstrating that the affiant deliberately intended to mislead the issuing justice.
[59] Moreover, counsel can make arguments on the Garofoli application by filing the video surveillance footage and the photo in support of their argument that it was not reasonable for the affiant to infer it was the same car. Cross-examination on this issue is not permitted.
12. Difference between PC Sherwin’s notes about information from Shawn Kitty and what is in the ITO
[60] The applicants submit that the ITO is misleading in how it summarizes information the affiant received from Shawn Kitty when one looks at PC Sherwin’s notes. They submit that it is not clear from PC Sherwin’s notes that state “believe that this is where Mr. Hibbert is actually living” if this is what Mr. Kitty said or this is PC Sherwin’s belief. They submit that they should be permitted to explore if this was deliberate attempt to mislead the issuing justice.
[61] PC Sherwin’s notes also state that “kitty pulled out personal cell phone and asks ‘is this the car’ and shows picture of Hibbert’s car and license plate – said moved in less than 2 months ago. – poss. 2 males and 2 females in apartment 109.” It is clear from PC Sherwin’s notes that Mr. Kitty believes that Mr. Hibbert was staying at the apartment based on this statement.
[62] I do not see a material difference from what is in PC Sherwin’s notes and what is stated in the ITO that would provide a reasonable possibility that cross-examination on this point will illicit evidence that will assist in undermining the preconditions for the issuance of the warrant, including demonstrating that the affiant was misleading the issuing justice. There is no basis to permit cross-examination on this point
13. Previous submissions to JP Florence
[63] The applicants seek to cross-examine the affiant regarding how he addressed the concerns raised by JP Florence who refused to issue the search warrant for the Goreway address and Newhaven Manor address on March 6, 2017. The affiant stated that JP Florence found that there was an insufficient description of the Goreway Drive address and that there was insufficient evidence to issue the warrant for the Newhaven Manor.
[64] The applicants submit that it is unclear if the March 6, 2017 ITO was put before the issuing justice on March 9, 2017 and they want to question the affiant about whether there was any additional evidence put into the March 9, 2017 ITO as the affiant swore that he addressed the concerns of Justice Florence in the “below paragraphs” contained in his affidavit.
[65] In addition, the applicants submit that the affiant added the term “girlfriend” in describing Ms. Williams and that this was not in the March 6, 2017 ITO. The applicants submit that this use of the term “girlfriend” was intended to support the grounds to believe that persons leave guns in the homes of their family and girlfriends and they wish to cross-examine on this point.
[66] Again, I do not see how it is reasonably possible that cross-examination on why the affiant put in the ITO that Williams was Mr. Hibbert’s girlfriend would assist in undermining one of the preconditions to the issuance of the warrant, including attempting to mislead the issuing justice. The applicants have not pointed to any basis to assert that the affiant was trying to mislead the issuing justice.
[67] It is open to the applicants to challenge on the Garofoli application if it was a reasonable inference that Ms. Williams is Mr. Hibbert’s based on the information contained in the ITO. There is information that Ms. Williams rented 3533 Derry Road apartment 109-C and Mr. Hibbert was seen coming and going from that apartment. Similarly, there is information in the ITO that Ms. Williams rented 201-8 Newhaven Manor and there is surveillance of Mr. Hibbert attending at that housing complex.
[68] In addition, it is open to the applicants to put the March 6, 2017 ITO and compare it against the March 9, 2017 ITO to suggest that there was no difference between the two ITO’s and argue that the affiant’s statement that he addressed these concerns was misleading. There is no need for cross-examination on this issue.
14. Not all the information from the fob records was in the ITO creating a misleading impression
[69] The applicants submit that the ITO creates a misleading impression that Mr. Hibbert used the fob numerous times a day in paragraph 26 (e) of the ITO to enter 3533 Derry Road. The applicants did not suggest that the times of the fob use and surveillance of Mr. Hibbert are incorrect in the ITO, rather, it is their position that the fob records were also used at times that were not connected to Mr. Hibbert.
[70] Again, I do not find that there is a reasonable possibility that cross-examination on this point will assist in undermining the preconditions for issuance of the warrant, including assisting in demonstrating that the affiant was misleading. The applicants have the fob records. They can provide them to the court and contrast that information with what is in the ITO to demonstrate that the information in the ITO was misleading, if indeed that is the case.
B. Cross-examination concerning conclusory statements in the ITO
[71] The applicants submit that there are many conclusory statements contained in the ITO. They would like to cross-examine the affiant about these statements, which include:
A. people in criminal activity will rent apartments in other’s people’s names and reside in multiple locations to avoid detection;
B. people entrenched in gang lifestyle will often stay and use the residences of family members and girlfriends to hide weapons;
C. Satchels are a means for those involved in crime to carry their guns;
D. Prior case involving a gun in a satchel; and
E. Because of Demetre’s concern for his safety, the gun will be close to him.
[72] Related to this issue is the applicants’ request to question the affiant with respect to his experience and training, particularly as it relates to his training with respect to gang activity.
[73] Crown counsel submits that this is the strongest ground on which to seek cross-examination. She asks the court to be mindful of the importance of protecting any CI privilege or other privilege that arise in response to questions asked about the affiant’s statements.
[74] In Pires; Lising, at para. 44, the Supreme Court held that cross-examination of the affiant may be granted based on the insufficiency of the affidavit on its face,
The insufficiency of the affidavit, on its face, may suffice to show a basis for cross-examination. In R. v. Williams (2003), 2003 18484 (ON CA), 181 C.C.C. (3d) 414, the statements in the affidavit concerning the utility of undercover operations were conclusory only and arguably understated the progress of the investigation. When considered in the context of the strict statutory requirement of showing investigative necessity, the Court of Appeal for Ontario held that the trial judge had erred in refusing leave to cross-examine the affiant:
In short, the appellant showed a basis for the view that the cross-examination would elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization, namely the investigative necessity requirement. Investigative necessity is a stringent requirement, requiring demonstration that there is, “practically speaking, no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry” (emphasis in original): R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.), at para. 29. There was a basis for believing that this exacting standard had not been met. The same might be said here of the use of the undercover officers and police agents. [para. 14]
[75] I am satisfied that the conclusory statements set out in ITO on their face are a sufficient basis to grant leave to cross-examine the affiant. The conclusory statements in the ITO directly relate to the objective sufficiency of the grounds to believe where the firearm may be located and that it would still be in Mr. Hibbert’s possession.
[76] With respect to the affiant’s experience and training, the questions are limited to experience and training that is relevant to the grounds for making the statements that are outlined in paragraphs “a” to “e”. This is not to become a wide-ranging challenge to the officer’s experiences in criminal investigations or in drafting ITOs.
[77] I am also cognizant of the concern about questions related to information that may tend to identify the CI. No questions that relate to or touch on CI information in this case may be asked without leave of the court.
C. Cross-examination undermining subjective grounds
[78] Finally, the applicants seek to cross-examine the affiant on his subjective belief that Mr. Hibbert will still be in possession of the firearm from the December 2, 2016 shooting, and whether the affiant believes that people will sometimes discard evidence including a firearm after it is used in a shooting, as well as why this was not included in the ITO. They submit that this will show that he was not full, fair and frank.
[79] The affiant’s subjective beliefs are not relevant in challenging the issuance of the warrants. Questions related to the use of conclusory language in the ITO are different than asking the subjective belief of the affiant. The irrelevancy of the affiant’s subjective believe in challenging the issuance of a warrant was explained eloquently by Dambrot J. in R. v. Riley, at paras. 12-14:
As I have noted, the applicants wish to cross-examine Det. Comeau in an effort to demonstrate that there was little or no evidence that would justify the conclusion that interception of private communications would assist the investigation of the offences named in the authorization, and in particular, (1) that there is no basis for a conclusion that the persons intercepted would speak about a now three-month old murder, and (2) there is no basis to include Wisdom and many of the other named persons as targets of interception.
This argument appears to conflate the basis for cross-examination with the test on the Garofoli application itself. The task of the judge on a Garofoli application was explained by Sopinka J. in Garofoli, at 187-188. He stated:
The correct approach is set out in the reasons of Martin J.A. in this appeal. He states, at p. 119:
If the trial judge concludes that, on the material before the authorizing judge, there was no basis upon which he could be satisfied that the pre-conditions for the granting of the authorization exist, then, it seems to me that the trial judge is required to find that the search or seizure contravened s. 8 of the Charter.
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
In other words, my task is to consider the sufficiency of the affidavits placed before the authorizing judges. I will not be assisted in this task by a cross-examination of Det. Comeau with respect to these aspects of his affidavits. Whatever he could have said, but failed to say in his affidavits to justify the conclusion that the interception of any of the private communications of any of the persons named in the authorization three months after the murder would assist the investigation, and whatever he could say now with the benefit of the passage of time, is of no moment. It is the information within the four corners of the affidavits that informs this issue. Any views that might be elicited from Det. Comeau under cross-examination about how the inference could be drawn from the information in his affidavits that the interception of private communications pursuant to the authorizations would assist the investigation of the offences are entirely irrelevant. It was for the authorizing judges, and not Det. Comeau, to decide whether or not to draw that inference. It is my simple task to determine if the affidavits provided them with a basis for doing so. I will not be assisted by any opinion Det. Comeau may have to offer about the sufficiency of the affidavits. Accordingly, this ground provides no basis for cross-examination. [Emphasis added]
[80] The applicants have not pointed to anything to suggest that the affiant was deliberately trying to mislead the issuing justice in stated that it was his belief that Mr. Hibbert was still in possession of the firearm. As such, I do not find that there is a reasonable possibility that cross-examination of the affiant on his subjective belief that Mr. Hibbert would still be in possession of the firearm will elicit testimony tending to discredit one of the preconditions to the authorization or tend to show that affiant deliberately misled the issuing justice.
CONCLUSION
[81] Cross-examination of the affiant will be permitted in accordance with the reasons in this decision.
Dennison J.
Released: March 18, 2019
COURT FILE NO.: 818/17
DATE: 2019 03 18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E N:
HER MAJESTY THE QUEEN
- and -
DEMETRE HIBBERT AND RAQUEL WILLIAMS
RULING ON APPLCIATION FOR LEAVE TO CROSS-EXAMINE THE AFFIANT ON THE ITO
Dennison J.
Released: March 18, 2019