Court File and Parties
COURT FILE NO.: 18-0552 DATE: 2019 04 30 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN Respondent – and – RAJA DOSANJH Applicant
COUNSEL: J. Forward, for the Crown B.J. Greenshields and J. Greenspan, for the Applicant
HEARD: April 17, 2019
LEMON J.
RULING RE: LEAVE TO CROSS-EXAMINE
RESTRICTION ON PUBLICATION
A Non-Publication Order is made pursuant to ss. 645(5) and 648(1) of the Criminal Code of Canada that publication of this ruling is prohibited.
Background
[1] Mr. Dosanjh is charged with first degree murder. This is one of a series of rulings with respect to pre-trial motions brought by the Crown and defence. To set the context for this motion, I can simplify the current status of the outstanding pre-trial issues as follows.
[2] Of greatest significance is the defence motion to exclude Crown evidence as a result of alleged breaches of Mr. Dosanjh’s s. 8 rights.
[3] The evidence in dispute is electronic evidence taken from a motor vehicle “infotainment system.” That is to say, the on board computer within the vehicle’s dashboard. The Crown submits that this electronic information is powerful evidence to identify Mr. Dosanjh as the killer. The defence seeks to have that evidence excluded pursuant to a number of arguments.
[4] Most importantly, the defence asks that I find that the warrant to obtain the evidence in dispute was invalid. That is still to be argued.
[5] On the evidence to date, it appears that the police obtained the disputed electronic evidence, intentionally or inadvertently, before obtaining the warrant. The defence submits that the details of obtaining that information prior to the warrant are not set out in full, frank and fair detail in the Information to Obtain the warrant.
The Issue
[6] As part of the defence application to set aside the warrant and exclude the evidence, the defence seeks to cross-examine the investigating officer, D/Cst Brian Welsh, the affiant of the Information to Obtain, Julie Meier and a further witness, Constable Michael Ryder.
[7] Welsh and Meier are with the Guelph Police Service. Ryder is with the Ontario Provincial Police. He was an investigator who was involved with the search of the infotainment system. Another officer, Jeremy Dupuis, was a special constable; he carried out the electronic search of the system.
[8] The Crown agrees that Welsh may be cross-examined but objects to the cross-examination of Meier and Ryder. Both parties agree that the transcript of the preliminary inquiry testimony of Dupuis can be relied upon by the defence in its application to attack the warrant. Neither Meier nor Ryder were examined at the preliminary inquiry.
[9] In particular, the defence seeks leave to cross-examine Meier on
i. whether she had reasonable and probable grounds to believe that data existed in the searched infotainment system taken from the target motor vehicle;
ii. whether she had reasonable and probable grounds to believe that the evidence sought would be found in that data source, and
iii. whether she had such grounds without reliance on any information obtained from a prior warrantless search.
[10] Further, the defence submits that the ITO was materially misleading with respect to the prior warrantless search. It therefore seeks leave to cross-examine Ryder on any communications with that he had with Welsh, Dupuis, Meier and the Crown regarding the infotainment system (other than any privileged issues).
[11] Finally, the defence seeks to cross examine Meier on the same issue with respect to any communications with Welsh, Dupuis, Ryder, or the Crown regarding the infotainment system in preparation for the January 12, 2018 ITO and a further November 15th, 2018 ITO, written by Meier.
[12] In order to keep the motions on schedule, I advised counsel that the request was granted for written reasons to follow. These are those reasons.
Positions of the Parties
[13] The defence submits that the warrant may be found invalid based on the Court’s residual discretion to quash an otherwise valid warrant, where police conduct has subverted the pre-authorization process through non-disclosure, bad faith, deception or fraudulent misrepresentation. The defence relies upon R. v. Paryniuk, 2017 ONCA 87 to support that argument.
[14] The defence raises two prongs to that argument. First, that Meier’s knowledge was different than set out in her affidavit; she did not have the necessary reasonable and probable grounds. Second, that the process of the pre-warrant search was materially misrepresented to the justice.
[15] The defence relies upon R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343. The defence submits that there is a “relatively modest onus” to show that the cross-examination will assist either the reviewing Judge, or the defence, with respect to the determination of admissibility. Accordingly, it submits that the evidence of Meyer and Welsh will be relevant to determine whether there has been material non-disclosure or misleading disclosure. Further, since Ryder was involved in the discussions leading up to the warrant, his evidence will be relevant.
[16] In response, the Crown submits that the cross-examination may only be allowed if the defence can demonstrate that it “is likely to elicit specific testimony tending to discredit the existence of a specified pre-condition to the issuance of a warrant.” The Crown denies that there is any suggestion in the affidavits that the issuing justice was materially mislead. Alternatively, the Crown submits that there should be clear limits to any allowed cross examination.
Authorities
[17] Both parties rely upon Pires and Lising. There, Charron J said:
. . . 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.
In some cases, the proposed cross-examination may be directed at the credibility or reliability of an informant. 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. . .
Analysis
[18] In my view, the defence should have the opportunity to cross-examine as requested. The issue to be examined is whether the issuing justice was materially mislead by the ITO. If so, did that undermine the integrity of the process that led to the issuance of the warrant?
[19] The Crown’s primary submission is that the defence argument cannot succeed. That is for the argument stage not the evidentiary record stage.
[20] The defence has pointed to what could be inconsistencies between the affidavits and with some of the documents referred to in those affidavits. Those possible inconsistencies are relevant to the defence theory of a misleading or other otherwise unsatisfactory ITO.
[21] All of these officers were involved in the process of the warrant. Some of the steps taken were discussed between the officers without notes being taken. All of the officers were mentioned in the Welsh affidavit and it is agreed that Welsh can be cross-examined. If I were to only hear from Welsh, I would only know part of the conversation.
[22] The defence request is focussed on narrow points relevant to a specific argument. As such, the order requested will not allow for an open ended examination.
Result
[23] Accordingly, I granted the order as requested.
“Justice Lemon”
Lemon J.