COURT FILE NO.: 18-117

DATE: 20191023

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHELDON CAMPBELL

Defendant

Amber Meiners for the Crown

Kevin Kaczmara for Mr. Campbell

HEARD: October 22, 2019

ruling No. 1 on pre-trial applications

boswell j.

OVERVIEW

[1] Sheldon Campbell is on trial for possessing crack cocaine for the purpose of trafficking, possessing a prohibited weapon (brass knuckles) and several other offences. His detection and arrest by officers of the Barrie Police Service appear to have been matters of serendipity for the police. I will explain what happened in a moment. Suffice it to say, by way of introduction, that the circumstances surrounding Mr. Campbell’s arrest have given rise to a number of pre-trial applications, under the Charter and otherwise.

[2] This ruling deals with a discrete issue on a defence application challenging the validity of a warrant obtained by the police to search cellular telephones seized from Mr. Campbell at the time of his arrest. More specifically, this ruling addresses whether, and to what extent, defence counsel may cross-examine the affiant of a sworn “Information to Obtain” (“ITO”) filed in support of the application filed by the police to obtain the search warrant.

[3] Before getting to the substance of the application, I will provide a very brief explanation of the circumstances leading to Mr. Campbell’s arrest and the application for the warrant to search his cell phones.

The LCBO Theft

[4] On October 4, 2016, an LCBO in the south end of Barrie called the police to report that a black male wearing a Captain America t-shirt and sunglasses had walked out of the store with a basketful of alcohol without paying for it. A police radio call went out regarding the incident at roughly 10:45 a.m. The suspect was reported running off in the direction of an East Side Mario’s restaurant. It is helpful to know that the LCBO faces south. Immediately outside of it is a large parking lot. On the south side of the parking lot is a Super 8 hotel. Immediately south of the Super 8 is the East Side Mario’s.

[5] Four police officers converged on the Super 8 hotel. One testified that he asked the front desk clerk if anyone matching the description of the suspect had entered the hotel. He said he was told that there was someone staying in a room on the third floor who matched the description. More specifically, he was staying in either room 313 or 315, both of which were rented to a female.

The Arrest of Mr. Campbell

[6] The police officers knocked on the door to room 313 and got no answer. They then knocked on room 315. A female answered the door. Immediately, all four officers entered the room, led by Sergeant Henderson. Mr. Campbell was arrested within seconds for possession of crack cocaine for the purpose of trafficking.

[7] I am led to understand that the justification for the warrantless entry into room 315 is that Sergeant Henderson+ saw, in plain view, a set of brass knuckles, which are a prohibited weapon. Once in the room, Sergeant Henderson saw, again in plain view, a bag containing crack cocaine. I have yet to hear, however, any testimony from Sergeant Henderson.

[8] In any event, a number of items were seized from room 315 following Mr. Campbell’s arrest, including five cellular telephones.

The Warrant Application

[9] The police wanted to search the telephones to see if they could locate within them communications consistent with drug trafficking. On January 8, 2017 they applied for a warrant for that purpose. The warrant application was supported by an affidavit sworn by PC Breedon. Affidavits filed with warrant applications are generally referred to as “Informations to Obtain” or ITOs, which is the acronym I will use in this ruling. The warrant was granted.

The Sub-Facial Challenge to the Warrant

[10] Counsel for Mr. Campbell challenges the validity of the warrant. He contends that the ITO did not provide a sufficient basis to support the issuance of the warrant. Applications of this nature are generally referred to as “Garofoli applications”, in reference to the Supreme Court case that remains the controlling authority in relation to them. See R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421.

[11] In this instance, the defendant mounts a sub-facial challenge to the warrant, which means that he asks the court to consider materials that were not before the issuing justice, in an effort to demonstrate that there were errors or other deficiencies in the ITO that should result in the excision of certain parts, or alternatively its complete rejection.

[12] As part of his sub-facial challenge, defence counsel moves for an order permitting him to cross-examine the affiant of the ITO, PC Breedon.

THE LEGAL FRAMEWORK

[13] Counsel do not have a right to cross-examine affiants of ITOs on Garofoli applications. They require leave of the court to do so. To obtain leave they must demonstrate that there is a reasonable likelihood that the proposed cross-examination will yield evidence discrediting the existence of one or more of the grounds for the issuance of the warrant. See R. v. Garofoli, at para. 88.

[14] Even where cross-examination is permitted, reasonable limits are to be placed on the scope of the examination in order to prevent prolixity and to ensure that it remains focused on matters that are relevant and material. See R. v. Garofoli, at para. 89.

[15] In R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, Justice Charron confirmed that while the right to cross-examine is of fundamental importance to the criminal trial process and more specifically, the right to make full answer and defence, it is neither unlimited nor absolute. She concluded that the right to make full answer and defence is contextually informed, saying, at para. 3:

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

[16] On a Garofoli application, the reviewing judge is not conducting a de novo hearing about the merits of the ITO. The reviewing judge is only inquiring about whether there was any basis on which the authorizing judge could have granted the order authorizing the warrant. That generally engages the question of whether the authorizing judge could have found that the statutory prerequisites had been met, namely that there were reasonable and probable grounds to believe that an offence had been committed and that the proposed search would afford evidence of that offence.

[17] On sub-facial challenges, however, as Justice Doherty observed in R. v. Sivrattan, 2017 ONCA 23, at para 26, “counsel may also argue that the augmented record placed before the reviewing judge demonstrates that the affiant deliberately, or at least recklessly, misled the issuing judge, rending the entire ITO unreliable as a basis on which to issue the warrant.” In fact, in this case, that is exactly what defence counsel is asserting.

[18] The narrow scope of permissible cross-examination must, therefore, reflect the position of counsel and be limited to matters probative of a deliberate or reckless disregard on the part of the affiant for the truth or accuracy of what was placed before the issuing justice in the ITO.

[19] Having said that, while the test leaves only a narrow window for cross-examination, it is not an otherwise onerous test. It is not necessary for defence counsel to demonstrate that the cross-examination will inevitably be successful. He or she need only demonstrate that there is a reasonable likelihood that the cross-examination will elicit evidence that will be of assistance to the court in determining a material issue.

THE PROPOSED SCOPE OF CROSS-EXAMINATION

[20] Defence counsel identified the following discrete areas he wishes to cross-examine PC Breedon on:

(a) His experience in authoring ITOs for warrant applications;

(b) His understanding of the responsibilities of the affiant of an ITO;

(c) The materials he reviewed, and alternatively did not review, in the preparation of the ITO in issue here;

(d) Whether he spoke to the first officer to arrive at the Super 8 hotel – PC Lamont – when preparing the ITO;

(e) Why he deposed that “a male matching the suspect description immediately concealed himself behind a wall and between two beds to avoid police detection”;

(f) The source of his information that Sgt. Henderson entered the hotel room “to confront the suspect”; and

(g) The affiant’s basis for saying that persons involved in drug trafficking use scales to weigh the drugs they are selling.

[21] In counsel’s view, these areas are probative of the affiant’s approach to the drafting of the ITO in issue and will demonstrate the reckless misleading of the reviewing justice.

[22] Crown counsel generally did not object to the court granting leave to defence counsel to conduct limited cross-examination and I think that position reasonable. Her concern was that the specific areas of permissible examination be clearly delineated so that the cross-examination did not stray from what is probative of the live issues.

DISCUSSION

[23] The Garofoli application is one of two significant pre-trial applications brought by the defence. The other is an application to exclude evidence under. S. 24(2) of the Charter based on alleged breaches of ss. 8, 9 and 10(b).

[24] The position of the defence is that the police officers who knocked on the door to room 315 of the Super 8 hotel had no lawful justification for entering the hotel room.

[25] Put simply, Mr. Campbell does not match the description of the LCBO thief, save for the fact that he is a black male. If Sgt. Henderson’s justification for entering room 315 without a warrant was to pursue a person matching the suspect, then he may very well have made a grave mistake.

[26] Candidly, I consider some of the areas of proposed cross-examination much more relevant and probative of the live issues on the application to exclude evidence than they are to the Garofoli application. Ultimately, the issuing justice had information in the ITO that a bag of crack cocaine, weigh scales and five cellular telephones were found in room 315. The defence does not challenge that information. Unless counsel is successful in arguing that the entire ITO should be disregarded due to a reckless misleading of the issuing justice, then the Garofoli application cannot succeed.

[27] That said, I am satisfied that most of the areas identified by defence counsel are at least capable of supporting an argument that there was misleading information in the ITO. In my view, counsel should be permitted to cross-examine on those areas. Moreover, the areas are distinct, and a focused cross-examination will, I expect, be relatively brief.

[28] The one area that I would not permit cross-examination on is the affiant’s indication that weigh scales are frequently associated with drug trafficking. In no way could that statement have misled the issuing justice. It is a widely known fact.

[29] In the result, leave is granted to the defendant to cross-examine PC Breedon on the areas identified by counsel and referenced at paragraphs 20 (a) to (f) above.

Boswell J.

Released: October 23, 2019