Court File and Parties
COURT FILE NO.: CR-21-101265 DATE: 2022/06/20 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Ousmane Kromah
BEFORE: G. E. Taylor, J.
COUNSEL: Alyssa Bain and Katherine Enns, Counsel for the Crown Malcolm McRae and Cooper Lord, Counsel for Ousmane Kromah
HEARD: June 13 and 14, 2022
ENDORSEMENT
Leave to cross-examine Affiant of Information to Obtain general Warrant
Introduction
[1] Ousmane Kromah is charged with manslaughter, aggravated assault and firearms offences in connection with events that occurred on December 15, 2019.
[2] On December 31, 2019, Waterloo Regional Police Service sought and obtained a general warrant to detain Ousmane Kromah and seize his cell phone. That general warrant is subject to a challenge as being an unreasonable detention, search and seizure. Ousmane Kromah seeks to have excluded at his trial, the evidence obtained during the course of executing the general warrant. Ousmane Kromah wishes to cross-examine the affiant of the Information to Obtain the general warrant (“ITO”) and other police officers who were involved in the planning and execution of the general warrant.
Background
[3] On December 15, 2019, Yafiet Rezene, was shot and killed. Two other persons were shot and wounded. Ousmane Kromah became a person of interest to the police in their investigation of the shootings.
[4] Investigators made a decision to seek to obtain authorization to seize Ousmane Kromah’s cell phone and to analyze its contents. Cst. James Christie of the Waterloo Regional Police Service was assigned the responsibility to draft the ITO for the general warrant. Cst. Christie received input from a number of officers and completed a draft of the ITO by December 29, 2019.
[5] An Operational Plan was prepared for the execution of the general warrant, if it was granted. In a section of the Operational Plan entitled “Deliberate Action Plan” the following is stated:
At an appropriate time and location, considering everyone’s safety, ERU will detain Kromah in accordance with the terms and conditions of the General Warrant and seize his cell phone. The decision to detain Kromah will be made by the ERU Tactical Commander. … Major Crime Investigators will read Kromah his RTC [right to counsel] and C [caution] and serve a copy of the General Warrant. Major Crime Investigators will attempt to obtain a Cautioned Statement from Kromah.
[6] On December 29, 2019, Cst. Christie sent a copy of the draft ITO to the lead investigator, Det. Cst. Andrew Kroetsch, who provided feedback. On December 31, 2019, Cst. Christie attended a meeting with Det. Cst. Kroetsch, a superintendent and other police officers at which time the warrant and its execution was discussed. The Operational Plan was signed by the superintendent on January 2, 2020.
[7] In the ITO it was proposed that the terms and conditions of the general warrant include that the warrant be executed in a public place, that Ousmane Kromah be given a copy of the warrant, that he be advised that he is under no obligation to make any statement or respond to any questions, that he be detained only as long as reasonably necessary to seize his cell phone and to be immediately released. The ITO also set out the investigative plan which included that Ousmane Kromah be advised of his right to speak to counsel but that implementation of that right only take place if specifically requested. The rationale for this was said to be to minimize the period of detention.
[8] Reference was made in the ITO to the Operational Plan (para 62). The ITO referred to several aspects of the Operational Plan. The ITO stated that Mobile Surveillance officers would follow Ousmane Kromah to a location where he could be safely stopped and detained while in possession of his mobile phone. Because the officers would be wearing plain clothes they would identify themselves to Ousmane Kromah as police officers and provide him with a copy of the warrant as soon as practicable. Ousmane Kromah would only be detained for as long as reasonably necessary to search his person and seize any mobile phone in his possession. Ousmane Kromah would be advised of his right to speak to counsel but implementation of that right would not take place unless specifically requested in which case police would facilitate that request but would seize any cell phones before contact with counsel was made.
[9] The general warrant was issued on December 31, 2019 to be executed between January 2 and January 9, 2020. The terms of the warrant included the following:
The police officers executing the warrant shall readily identify themselves as such and provide Kromah with a copy of the warrant at the time of execution. The subject shall be advised of his rights and that he is under no obligation to make any statement to police nor respond to any questions.
The warrant shall authorize police to detain Kromah at the time of execution, but only for so long as is reasonably necessary under the circumstances. Afterwards, the subject shall be immediately released, unless some other lawful authority for detention or arrest has arisen. Police shall only use as much force as is reasonably necessary under the circumstances to facilitate this detention and execution of the warrant.
[10] The ITO referred to information from Det. Michelle Selby regarding her dealing with Ousmane Kromah in an investigation in 2011 at which time Ousmane Kromah was under the age of 18. The information from Det. Selby was that she had learned from that investigation that Ousmane Kromah was known by the name of “Ouzzy” or “Uzi”.
[11] The general warrant was executed on January 3, 2020 and Ousmane Kromah’s cell phone was seized. The detention of Ousmane Kromah began at 3:52 p.m. At 4:01 p.m., Det. Sgt. Aaron Mathias advised Ousmane Kromah of his right to counsel and silence. Det. Jesse Kingscote was with Det. Sgt. Mathias at this time. Det. Sgt. Mathias recorded the right to counsel and caution being given to Ousmane Kromah.
[12] After the recording device was turned off, Det. Sgt. Mathias and Det. Kingscote had a conversation with Ousmane Kromah during which he agreed to voluntarily attend at the police station for an interview. This was as contemplated in the Operational Plan.
Discussion
[13] At this stage of the proceeding, I am only dealing with the issue of cross-examination of Cst. Christie and the sub-affiants.
[14] Based on the evidence on the application it could be concluded that some of the information contained in the Operational Plan was not made known to the authorizing judge. The authorizing judge was not told that the detention of Ousmane Kromah would be considered “high risk”. The authorizing judge was not told that the plan was to have the detention effected by members of the Emergency Response Unit as opposed to the Mobile Surveillance Unit. The authorizing judge was not told that an attempt would be made during or following the detention to obtain a statement from Ousmane Kromah.
[15] In R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S. C. R. 1421, the Supreme Court of Canada held that to cross- examine the affiant of an affidavit or ITO, leave must be obtained. The granting of leave to cross- examine is in the discretion of the trial judge. Leave to cross-examine should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. It must be shown that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization (para 88).
[16] In R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S. C. R. 343, the Supreme Court of Canada held that the requirement that the Crown provide full disclosure of the investigative file is a factor to be considered in deciding whether leave to cross-examine an affiant should be granted. It was pointed out that the defence can compare the contents of the investigative file with the content of the affidavit (para 26).
[17] The defence position is that by failing to advise the authorizing judge of the plan to attempt to obtain a statement from Ousmane Kromah, the authorizing judge was deprived of relevant information necessary to decide if it was in the best interest of the administration of justice to grant the authorization requested. Similarly, it can be argued that the authorizing judge should have been alerted to the intention to have the detention effected by the Emergency Response Unit.
[18] In my view, there is evidence presently before the court on the application from which it can be argued that information relevant to whether it was in the best interest of the administration of justice to issue the general warrant was withheld from the authorizing judge. The argument can be made, based on the affidavit and the other evidence on the application, that the affiant knew, or ought to have known, that the authorizing judge should have been told about the intention to seek to obtain a statement from Ousmane Kromah and that the detention would be affected by the Emergency Response Unit in what was to be a high-risk situation. Based on the present evidence, it can be argued that these omissions directly impact on the best interest of the administration of justice requirement for the issuance of a general warrant.
[19] In my view, it is not necessary that the affiant and sub-affiants be cross-examined on this issue.
[20] The ITO states that Det. Selby took part in a robbery task force investigation in the course of which she learned that Ousmane Kromah goes by the nicknames “Ouzzy” or “Uzi”. In a report dated April 9, 2021, Det. Selby stated that during the task force investigation a list of Persons of Interest was created. She relied on that document to support her memory that Ousmane Kromah was known as “Uzi”.
[21] The position of the defence is that Det. Selby relied on a Youth Criminal Justice Act record which should have been destroyed. It is sought to cross-examine Det. Selby on the document which she referenced in order to establish that it was a “record” to which the Youth Criminal Justice Act retention provisions apply.
[22] In my view, cross-examination of Det. Selby is not necessary. Based on the evidence currently before the court on the application, the argument can be made that Det. Selby relied on a document which should not have been available to her.
Conclusion
[23] For the foregoing reasons, permission to cross-examine the affiant, Cst. Christie, and the sub-affiants, Det. Sgt. Mathias, Det. Kingscote and Det. Selby is denied.
G. E. Taylor, J.
Date: June 20, 2022