COURT FILE NO.: 21-24

DATE: 2022/08/16

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Devon Brown, Applicant

COUNSEL:

Andre White, counsel for the Provincial Crown and Andrew McAllister for the Federal Crown

Cedric Nahum, counsel for the Defendant

HEARD: July 13, 2022

Ruling on Application to cross-examine an affiant pursuant to r. V. garofoli

Bramwell, j.

Introduction

[1] The Applicant seeks leave to cross-examine D/Cst. Dave Langlois (“Affiant”) regarding the evidence relied on by the Affiant in swearing the Informations to Obtain (“ITO”) in support of three search warrants. While the Notice of Application and Factum reference seeking leave to cross-examine on all four search warrants that were authorized in this case, the Applicant clarified in oral submissions that he is only seeking to cross-examine on the ITOs for three of the four warrants.

[2] For the reasons that follow, the Application is dismissed.

Facts

[3] There was no viva voce or affidavit evidence tendered by either party. The evidence consisted of documentary exhibits.

[4] What follows is the timeline relating to the facts relevant to this application, disclosed by a review of the documentary evidence.

[5] Between May 24 and 25, 2020, the Applicant is alleged to have sent, using Facebook Messenger, audio text messages to his ex-girlfriend that contained threats directed at her and other members of her family, including her stepfather, David Johnson. It is alleged that David Johnson was made aware of these messages and that he and the Applicant then began messaging each other back and forth over Facebook Messenger.

[6] At approximately 1:19 a.m. on May 25, 2020, the Applicant and David Johnson met up outside of 55 Race Street in Cornwall to engage in a consent fight. Witnesses were present who videotaped at least part of the ensuing altercation.

[7] During the altercation, the Applicant stabbed David Johnson in the neck with a silver bladed knife, causing serious injuries.

[8] The Applicant was noted to be wearing grey jogging pants, a black hoodie, and white shoes.

[9] After the altercation, the Applicant was seen running to his nearby apartment at 85 Race Street, Cornwall.

[10] Police were notified shortly after the stabbing. They arrived at 85 Race Street at approximately 1:28 a.m. and, shortly thereafter arrested the Applicant, when he emerged from his apartment at their request.

[11] The Applicant was wearing different clothing and shoes upon his arrest than he was wearing at the time of the altercation with David Johnson. The Applicant did not have a knife nor any cellphone or electronic device in his possession upon his arrest.

[12] The police secured the scene of the altercation at 55 Race Street. They also secured the scene at 85 Race Street, Apartment #2 (“Applicant’s Apartment”).

[13] At approximately 4:52 a.m., police escorted Thomas Vriesendorp, the Applicant’s roommate, to the Applicant’s Apartment to retrieve some belongings. Officers Brush and Blakeley entered the Applicant’s Apartment, which was a secure scene being held by police, retrieved the belongings and gave them to Vriesendorp.

[14] At 5:30 a.m. Officers Dupuis and Carpenter reviewed the scene of the stabbing at 55 Race Street. No knife was located at that scene.

[15] At 9:08 a.m., the interview of the Applicant by Officer Dupuis began.

[16] At 10:02 a.m., the Affiant dropped off the warrant packages for review by a justice. One warrant package was for a s. 487 search warrant for the Applicant’s Apartment (“Warrant #1”) and the other was for a s. 487 search warrant for the phone seized from and belonging to David Johnson (Warrant #2). The Applicant is not seeking to cross-examine the Affiant on the ITO for Warrant #2.

[17] At 10:45 a.m., the Affiant reattended at the courthouse to pick up the signed warrants for Warrant #1 and Warrant #2.

[18] At approximately 10:48 a.m., the Applicant advised Officer Dupuis during the interview that had been ongoing since 9:08 a.m., that the knife he’d used to stab David Johnson was in a bin in his closet.

[19] At approximately 10:56 a.m., the Applicant was shown Warrant #1. The Applicant was told that police would be searching the Applicant’s Apartment. He was asked whether there was anything in it that the police should be aware of. He said no.

[20] At approximately 10:57 a.m., the Applicant told Officer Dupuis, during the still ongoing interview, that the clothing he was wearing at the time of the stabbing was in the bin in his closet. He also said that he didn’t know where his phone was but that it might be in his bedroom.

[21] At approximately 11:15 a.m., the Affiant attended the Applicant’s Apartment with Officer Carpenter, who was the Forensic Identification Section Officer.

[22] At approximately 11:30 a.m., Officer Carpenter entered the Applicant’s Apartment and executed Warrant #1. Prior to attending the Applicant’s Apartment, Office Carpenter was advised by Officer Blakeley that “the knife is said to be in the apartment, in a blue bin.”

[23] Officer Carpenter observed blood on the doorknob of the exterior door to the building as well as on the doorknob to the Applicant’s Apartment. In the living room of the Applicant’s Apartment, she observed a Ziplock baggie and several dime bags on the couch and a pill press in the console of the couch. There were three cell phones, one of which was constantly ringing, and a computer found in the living room.

[24] Officer Carpenter noted several areas of blood staining on the floor and walls in another area of the apartment. In a bedroom, she noted a Rubbermaid bin in the closet that appeared to contain dirty laundry. On the couch in the same bedroom was a box for a small scale. There was a BB gun that looked like an assault rifle, Ziplock bags and a knife. Near the closet was a pair of white running shoes with blood staining on them. There was a pair of grey jogging pants on or near the bed with blood staining on them.

[25] Beside the bed were two shoeboxes. Officer Carpenter opened one box to check for cell phones as she heard one ringing in the bedroom. In the box, she found a large bag of white pills. In the other box, she found psilocybin mushrooms and marijuana.

[26] In the bathroom, Officer Carpenter found visible blood in the sink that had been “wiped and swiped.” She noted “the same existed on the floor in the bathroom, hallway and previous bedroom.” She found a navy-blue sweatshirt on the floor of the bathroom with bloodstaining on it.

[27] In the dining area, Officer Carpenter noted a gaming computer and a laptop.

[28] In a second bedroom, Officer Carpenter noted a gaming computer, a box containing drug paraphernalia and several bongs.

[29] Officer Carpenter then returned to the first bedroom to go through “the blue bin, as the knife was believed to be in there.” She located a tactical style knife with a folding blade with staining on it.

[30] At 12:19 p.m. Office Carpenter sent a text attaching two photos of the drugs she had located in the first bedroom in the shoe boxes to the Affiant and asked him to attend. The Affiant then entered the Applicant’s Apartment, observed the drugs and left to draft a Controlled Drugs and Substances Act (“CDSA”) search warrant.

[31] At 2:05 p.m. the Affiant attended at the courthouse to drop off a warrant package for a CDSA search warrant as a result of the drugs found in the Applicant’s Apartment during the execution of Warrant #1. The Affiant returned to the courthouse at 3:30 p.m. to pick up the signed CDSA warrant (Warrant #3).

[32] At 4:00 p.m., the Affiant returned to the Applicant’s Apartment and showed Warrant #3 to Officer Carpenter who reviewed it. A detailed search of the Applicant’s Apartment was subsequently conducted, and various quantities of various drugs were seized.

[33] On May 27, 2020, the Affiant submitted a warrant package seeking authorization pursuant to s. 487 to search five cell phones and four computers seized during the execution of Warrants #1 and 3. The s. 487 search warrant relating to the phones and computers was granted on May 27, 2020, at 2:55 p.m. (Warrant #4).

The Applicant’s Position

[34] The Applicant seeks leave to cross-examine the Affiant on the ITOs sworn in support of Warrant #1, #3 and #4. According to the Applicant’s Factum, he seeks to question the Affiant on “his pre-existing knowledge of other offences alleged to have been committed by the Applicant and the existence of facts learned in the investigation that were omitted from the ITOs that could have impacted the issuance of the search warrants.”

[35] The Applicant asserts that the Affiant is a crucial witness and that the Applicant being able to cross-examine him is essential for the Applicant to make full answer and defence.

[36] The Applicant asserts that the Affiant did not include in any of the ITOs the statements made by the Applicant during his interview with the Affiant on May 25, 2020. The Applicant asserts that the Applicant told the Affiant that his phone was in his bedroom and that the knife used to stab David Johnson was in a blue bin in the closet of his bedroom, along with the clothes he wore at the time of the incident.

[37] The Applicant asserts that the search authorized by Warrant #1 was far more extensive than was necessary. Specifically, the Applicant takes issue with the fact that the entire residence was thoroughly searched, and multiple boxes were opened even though the Applicant had told police that the clothing he was wearing at the time of the stabbing and the knife he used in the stabbing could be found in a bin in his closet.

[38] The Applicant argues that in not including in the ITO the information provided by the Applicant to police during his statement, the Affiant breached his duty to be full, frank, and fair in drafting and swearing the ITO.

[39] The Applicant submits that the Affiant improperly assumed that the Facebook Messenger communications sent by the Applicant to David Johnson were sent using the Applicant’s iPhone 7 and that the Affiant lacked reasonable and probable grounds to believe that evidence of the communications would be found on the iPhone 7.

[40] The Applicant submits that the real intention of the Affiant in seeking Warrant #1 was to search the Applicant’s Apartment in the hopes of finding drugs and that, because there was no mention of any offence other than attempt murder in the ITO, the Applicant should be allowed to cross-examine the Affiant as to whether he had any knowledge of other criminal offences committed by the Applicant and, more specifically, of drug-related offences.

[41] The Applicant specifies that he wishes to cross-examine the Affiant on the role played by statements made by neighbours of the Applicant to Officer Brush at approximately 2:20 a.m. on May 25, 2020, to the effect that there was constant in and out traffic from the Applicant’s Apartment; the identity of the visitors was unknown, and they would visit for very short periods of time.

[42] The Applicant submits that because Warrants #3 and #4 were obtained on the strength of evidence gathered during the execution of Warrant #1, he should be permitted to cross-examine the Affiant on the ITOs for Warrant #3 and #4 as well as on the ITO for Warrant #1.

[43] The Applicant submits that he does not have to establish that a breach of s. 8 of the Charter is likely to be found nor that it is likely that any evidence would be excluded pursuant to s. 24(2) of the Charter. The Applicant asserts that the issue is whether there is a reasonable likelihood that the cross-examination of the Affiant would help determine whether there was a breach.

[44] In oral argument, the Applicant advanced an argument not set out in his Notice of Application or Factum that the Affiant also breached his duty to be full, frank, and fair in his ITO by failing to inform the issuing justice that the Applicant was on release conditions at the time of the alleged offence on charges relating to alleged possession of drugs for the purpose of trafficking.

The Respondent’s Position

[45] Mr. White, of the Cornwall Crown Attorney’s Office took the lead in oral argument on behalf of the Respondent. Mr. McAllister as agent for the PPSC indicated that he adopted Mr. White’s submissions.

[46] The Respondent submits that the Applicant has failed to meet the requisite threshold for leave to cross-examine with respect to the areas of proposed cross-examination. The Respondent asserts that the Applicant has not shown any basis for the assertion that there is a reasonable likelihood that cross-examination of the Affiant will elicit testimony that tends to discredit the existence of a condition precedent for the granting of any of the authorizations in this matter.

[47] The Respondent submits that the Applicant has provided an insufficient evidentiary basis to support the need for cross-examination of the Affiant for Warrant #1, #3 or #4. The Respondent argues that in seeking to cross-examine the Affiant, the Applicant is seeking to engage in a “fishing expedition” in which the Applicant will attempt to find some basis to undermine one or more of the warrants.

[48] The Respondent submits that the Applicant has not proposed any specific questions for cross-examination and only suggested broad stroke areas for cross-examination. The Respondent submits that nothing turns on the proposed broad stroke areas.

Relevant Legal Principles

[49] In R. v. Green, 2015 ONCA 579, the Ontario Court of Appeal succinctly set out, at paragraphs 31-35 the legal principles applicable to the present application. Doherty, J.A. wrote:

An accused who seeks to cross-examine the affiant of an ITO in aid of a motion to exclude evidence obtained as a result of the execution of a search warrant must obtain leave from the trial judge. In deciding whether to grant leave, the trial judge will have regard to various competing interests, including the accused’s right to make full answer and defence, the Crown and the court’s obligation to protect the identity of confidential informants, and the court’s obligation to make effective use of limited judicial resources by avoiding unnecessary and time-consuming proceedings. In R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1465, Sopinka J. articulated an approach which balanced those competing interests. He held that cross-examination of the affiant should be allowed where:

[T]he trial judge is satisfied that the 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. [Emphasis added.]

In R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, the Court confirmed the Garofoli approach in the context of a Charter challenge. Charron J. emphasized the relatively narrow focus of the Garofoli inquiry, at para. 40:

[T]he 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 the 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. [Emphasis added.]

Garofoli and Pires were wiretap cases. However, the same approach is apposite when search warrants are challenged: see Sadikov, at paras. 39-41; R.v. Greaves-Bissesarsingh, 2014 ONSC 4900, 314 C.C.C. (3d) 493; R. v. Daniels, 2014 ONSC 6542.

Cross-examination of the affiant will be allowed when the trial judge is satisfied that there is a reasonable likelihood that the proposed cross-examination will assist in determining whether the necessary grounds existed for the issuance of the search warrant. The focus is on the reasonableness and honesty of the affiant’s belief as to the existence of the requisite grounds, and not on the ultimate accuracy of the information relied on by the affiant: Pires, at paras. 41-43; Sadikov, at para. 40.

Motions to cross-examine affiants most often target specific, factual allegations in the ITO that are central to the existence of the reasonable grounds necessary to justify the granting of the warrant. The accused on the motion to cross-examine, either by reference to other parts of the ITO, or extraneous evidence (often material provided by Crown disclosure) attempts to demonstrate that there is a reasonable likelihood that cross-examination of the affiant on certain parts of the ITO will “undermine” the grounds upon which the warrant was granted: see Pires, at paras. 68-69. Cross-examination may “undermine” the grounds set out in the ITO either by contradicting information in the ITO or by adding information that was not in the ITO. In either case, the honesty and/or reasonableness of the affiant’s grounds for believing that the warrant should issue are the ultimate target of the cross-examination.

Analysis

[50] The Respondent seeks to question the Affiant on “his pre-existing knowledge of other offences alleged to have been committed by the Applicant.” The Respondent tendered no evidence to suggest that the Affiant had any pre-existing knowledge of other offences alleged to have been committed by the Applicant at the time he swore the ITO for Warrant #1. The ITO for Warrant #3 was sworn on the strength of the drugs that were found and seen by the Affiant during the execution of Warrant #1. There was no argument advanced about the Affiant’s possible pre-existing knowledge of other offences regarding Warrant #4. This argument about “pre-existing knowledge of other offences” must fail due to the complete lack of an evidentiary foundation to make it.

[51] Further, even assuming for the sake of argument, that the Affiant did have pre-existing knowledge of other offences alleged to have been committed by the Applicant, I fail to see how that would be relevant to the analysis of whether the issuing justice could have issued the authorizations on the evidentiary record before him or her. Put another way, if the Affiant had, in fact, had knowledge that the Applicant possessed various quantities of various drugs, in my view, that would have been either irrelevant to his grounds in seeking the authorization to search the Applicant’s Apartment for evidence relating to the stabbing or if not irrelevant, it might have strengthened his grounds. I fail to see how knowledge of other criminal activity on the part of the Applicant would weaken the grounds for seeking a search warrant on the facts of this case.

[52] The Applicant argues that the Affiant omitted facts from the ITO that were learned in the investigation. This argument fails for several reasons. First, the Respondent asserts that the Affiant was required to include in the ITO the information provided by the Applicant about the whereabouts of his phone, the clothing he was wearing at the time of the stabbing and the knife used in the stabbing. However, a review of the timeline reveals that this information was not provided to police until after the ITO for Warrant #1 was sworn by the Affiant and after the warrant package was left for the issuing justice to review. In other words, the Affiant couldn’t have included this information, because it wasn’t yet known. As an aside, contrary to the Applicant’s assertion, it was not the Affiant who interviewed the Applicant. It was Office Dupuis.

[53] Second, the Applicant asserts that the Affiant should have included in the ITO the information obtained from the neighbours about in and out traffic from the Applicant’s Apartment because the Applicant asserts that this was evidence that that scene had not been secured by police. The Applicant points to those statements by the neighbours and the fact that Thomas Vriesendorp was taken into the apartment in alleging that the scene was not secure and asserts that the issuing justice should have been told that the scene was not secure. However, when Cst. Brush’s report and notes are reviewed, it becomes clear that the scene was secure. Thomas Vriesendorp was not taken in to retrieve his belongings; they were retrieved by police. Further, Cst. Brush intercepted someone trying to enter the Applicant’s Apartment through a rear window while he was guarding the scene and he turned that person away. It is therefore clear that the neighbour’s comments about constant in and out traffic at the Applicant’s Apartment are in reference to a time prior to police having that scene secured. The scene was secured from the time of the Applicant’s arrest inside his apartment.

[54] Even if I am incorrect in my interpretation of the neighbours’ comments, there is no evidence that the Affiant was aware of them when he swore the ITO and, most importantly, there is no connection between those comments and the ultimate issuance of the warrant. The test is whether cross-examination of the Affiant on this subject matter would likely assist in determining whether the issuing justice could have issued the warrant based on the evidence provided in the ITO. In my view, cross-examination on the Affiant’s knowledge of what the neighbours told Cst. Brush or said in their statements would not assist in determining whether the issuing justice could have issued the warrant. It is not reasonable to think that the issuing justice would have refused to issue the warrant even if information had been provided to him or her that other people had been seen in or at the scene.

[55] The Applicant also argued that in not setting out the details of the statements provided by the neighbours to police, the Affiant breached his duty to be full, frank, and fair in his ITO. First, as stated above, there is no evidence that the Affiant was aware of or reviewed the neighbours’ statements before swearing the ITO for Warrant #1. But even if he was or had, the statements do not disclose much, if anything, related to the alleged attempt murder. Each of the three neighbours documented their observations once police arrived on scene and arrested the Applicant. There is nothing in any of the neighbours’ statements that would have lead the issuing justice to refuse authorization, had the Affiant sworn to it in the ITO. Cross-examination of the Affiant on his knowledge of the subject matter of the neighbours’ statements and why it was not in the ITO for Warrant #1 would not likely assist in determining whether the issuing justice could have issued the warrant.

[56] The Applicant asserts that the Affiant is a crucial witness and that the Applicant being able to cross-examine him is essential for the Applicant to make full answer and defence. The Respondent confirms that the Affiant will be called at trial with respect to the seizure of items during execution of the search warrant. If a challenge is mounted to the manner in which the search was executed, the Affiant can also be called in a s. 8 pre-trial motion. However, the way the search was executed is not a relevant consideration on an application to cross-examine the Affiant on the contents of the ITO.

[57] The Applicant asserts that the search authorized by Warrant #1 was far more extensive than was necessary. Specifically, the Applicant takes issue with the fact that the entire residence was thoroughly searched, and multiple boxes were opened even though the Applicant had told police that the clothing he was wearing at the time of the stabbing and the knife he used in the stabbing could be found in a bin in his closet. As stated in the last paragraph, the way the search was executed is not a relevant consideration on an application to cross-examine the Affiant on the ITO.

[58] The Applicant submits that the Affiant improperly assumed that the Facebook Messenger communications sent by the Applicant to David Johnson were sent using the Applicant’s iPhone 7. In fact, Appendix “A” to the ITO sworn in support of the application for Warrant #1 lists, as one of the things to be searched for within the Applicant’s Apartment “any electronic device capable of accessing Facebook Messenger.” Under the heading “Property of Interest” in the “Overview” section of the ITO, the Affiant lists, located within the Applicant’s Apartment, among other items of interest: the cell phone belonging to the Applicant and any laptop or computer device capable of accessing Facebook Messenger. It is clear therefore that the Affiant did not assume that the communications in question were made using an iPhone 7.

[59] In oral argument, the Applicant advanced an argument not set out in his Notice of Application or Factum that the Affiant had also breached his duty to be full, frank, and fair in his ITO by failing to inform the issuing justice that the Applicant was on release conditions at the time of the alleged offence for possession of drugs for the purpose of trafficking. This argument fails because even assuming, for the sake of argument, that cross-examination of the Affiant revealed that he was indeed aware of the fact that the Applicant was on release for alleged drug trafficking allegations, that evidence would be of no assistance to this Court in determining whether the issuing justice could have issued the warrant based on the evidence before him or her. I fail to see how the Applicant’s outstanding drug charges or release conditions could be relevant to the Affiant’s reasonable and probable grounds to search the Applicant’s Apartment for evidence relating to an attempt murder. Indeed, there are cases in which courts are critical of affiants including such information as it can be considered prejudicial to the target of the investigation. Further, to the extent that it might be relevant, in my view, it could only serve to strengthen the Affiant’s reasonable and probable grounds. Even if there was evidence that the Affiant was aware of the outstanding charges and release conditions, a failure to disclose them to the issuing justice would not constitute a breach of the duty to be full, frank, and fair.

[60] The overall thrust of the Applicant’s main argument is an assertion, unsupported by any evidence, that the Affiant’s true intention in seeking the authorization to search the Applicant’s Apartment was to find drugs. What is clear from the evidence filed on the motion is that the Applicant stabbed David Johnson and the stabbing was preceded by electronic communications between the two of them. After the stabbing, the Applicant fled to the Applicant’s Apartment where he was arrested shortly thereafter. Upon his arrest, he was wearing different clothing, was not in possession of any device capable of electronic communications or a knife. The Affiant swore to his grounds to believe that evidence relating to the stabbing would be found in the Applicant’s Apartment, which was the place the Affiant was seeking authorization to search.

[61] None of the evidence filed or the arguments made by the Applicant have satisfied me that the proposed cross-examination of the Affiant is likely to 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 or that the Affiant breached his duty to be full, frank, and fair in the ITO.

[62] Given the nature of the Applicant’s arguments and the fact that Warrants #3 and #4 flowed from the evidence seized during the execution of Warrant #1, the application to cross-examine the Affiant on the ITOs for Warrants #3 and #4 rises or falls on the success of the application as it relates to Warrant #1.

[63] I find that the Applicant has not met the onus upon him on this Application and it is dismissed.

The Honourable Justice Lia Bramwell

Released: August 16, 2022