Reasons for Decision on Pretrial Motions

Court File No.: 16441/24
Date: 2025-01-21
Court: Ontario Superior Court of Justice
Between:
His Majesty the King – and – Chard Patrick

Appearances:
T. Boodoosingh / A. Mavridis, for the Crown
E.M. Battigaglia, for the Defendant

Heard: January 6, 9, 2025

Judge: H. Leibovich

Overview

[1] Mr. Patrick is charged with the second-degree murder of Arun Vigneswararajah. Mr. Arun Vigneswararajah was killed on October 15, 2022. Mr. Patrick’s trial is set to start on February 3, 2025.

[2] Mr. Patrick has brought the following pre-trial motions:

1. An application under s. 8 of the Canadian Charter of Rights and Freedoms to set aside various search warrants and to have the following pieces of evidence excluded:

   • (a) Mr. Patrick’s DNA sample, which was compared to the DNA found on a blue Infiniti at the scene;
   • (b) A video of the victim rapping which was found on Mr. Patrick’s phone;
   • (c) Mr. Patrick’s medical records obtained from Sunnybrook Hospital; and
   • (d) The victim’s medical records also obtained from Sunnybrook Hospital.

2. An application to prohibit the Crown from eliciting in-dock identification from a witness, Mr. Vigneswaralingam; and

3. An application to prohibit Mr. Vigneswaralingam from testifying or an order precluding the Crown from relying on Mr. Vigneswaralingam’s statements to the police or preliminary inquiry evidence during the course of the Crown’s examination of Mr. Vigneswaralingam at trial.

[3] The Crown has brought an application to introduce the victim’s ante mortem statement to Mr. Vigneswaralingam at the scene as a dying declaration exception to the hearsay rule.

[4] The Crown also filed a notice that it intends to seek a post offence conduct instruction at the end of the trial with respect to its anticipated evidence that Mr. Patrick fled the scene and discarded his clothes and a knife. During the course of the pre-trial motions, the defence properly conceded that the Crown was entitled to call the relevant evidence at trial. All agreed that what instruction I ultimately give the jury will be decided at the end of the trial and after hearing submissions during the pre-charge conference. Nothing more needs to be said on the issue at the moment.

[5] For the reasons set out below, I find as follows:

1. The s. 8 application and the request to exclude pieces of evidence is dismissed.
2. The application to exclude the in-dock identification is dismissed.
3. The application to prohibit Mr. Vigneswaralingam from testifying at trial is dismissed. Any request to refresh the witness’ memory, to cross-examine a witness, or to allow the Crown to make substantive use of a past statement, during the course of the trial, may only be done with the court’s approval. I will deal with any such requests if and when they arise. It is premature to address those issues now.
4. The application to introduce the victim’s ante mortem statement is allowed.

The Section 8 Application

[6] In the early morning hours of October 15, 2022, the victim was stabbed in the chest in the parking lot of the King’s Castle bar in Ajax, Ontario. He died shortly thereafter. The following warrants were sought and obtained:

1. An October 15, 2022 warrant to search a black Toyota Highlander motor vehicle parked at 79 Barnes Drive, Ajax. This car was registered to Norisa Codrington.
2. An October 15, 2022 warrant to search 103-700 Dunlop Street, Whitby, the residence of Ms. Codrington.
3. An October 18, 2022 warrant to search: (1) the contents of a cell phone found at the scene associated with Mr. Patrick. The defence seek to exclude a video of the victim rapping that was found on the phone. (2) the contents of a cell phone found associated with Mr. Vigneswaralingam; and (3) a blue Infiniti owned by Mr. Vigneswaralingam.
4. An October 27, 2022 warrant to have the victim’s medical records produced from Sunnybrook and to have Ms. Codrington’s Text Now messages produced. Mr. Patrick seeks to exclude the victim’s medical records.
5. A November 7, 2022 warrant to obtain the applicant’s medical records. Mr. Patrick seeks to exclude his medical records; and
6. A February 27, 2023 warrant to obtain the applicant’s DNA, which was compared to the DNA taken from the Infiniti. Mr. Patrick seeks to exclude his DNA sample.

The Limited Granting of Leave

[7] Officer Bryce was the affiant for all the above warrants. The applicant sought leave to cross-examine the affiant on three areas:

1. Her knowledge of the existence and contents of Mr. Vigneswaralingam’s statements to the police;
2. Her knowledge of the cause of death; and
3. Her knowledge of the contents of surveillance footage of King's Castle and 103-700 Dunlop Street.

[8] The applicant submitted that the affiant’s failure to provide full, frank and fair disclosure was a purposeful attempt to undermine the pre-authorization process: R. v. Strauss, 2017 ONCA 628, para 25; R. v. Paryniuk, 2017 ONCA 87, para 66.

[9] I allowed cross-examination on only the first area, her knowledge of Mr. Vigneswaralingam’s statements to the police, but not the other areas. I will explain why.

[10] An accused does not have an automatic right to cross-examine the affiant of an information to obtain [ITO] in aid of a motion to exclude evidence obtained as a result of the execution of a warrant. The accused must obtain leave from the trial judge. In R. v. Garofoli, [1990] 2 S.C.R. 1421, p. 1465, Sopinka J. 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.]

[11] This approach was confirmed in R. v. Pires; R. v. Lising, 2005 SCC 66, 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. [Emphasis added]

[12] Doherty J.A. stated in R. v. Green, 2015 ONCA 579, para 34:

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.

[13] The ultimate reliability of the information in the information to obtain a judicial authorization is not in issue on a motion to cross-examine the affiant. It is not necessary for the defence to demonstrate that the cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization. As stated by Doherty J. in R. v. Shivrattan, 2017 ONCA 23, para 49:

…The trial judge is only concerned with whether there is a reasonable likelihood that the proposed cross-examination would assist in determining whether the grounds existed for the issuance of the warrant. The defence is not required to show that the cross-examination will succeed in demonstrating that unreliability: Green, at paras. 34-36; and Garofoli, at pp. 1463-1465.

[14] A further review of the case law demonstrates that:

1. The proposed cross-examination may be directed at the credibility or reliability of the affiant;
2. Cross-examination that only shows that the information relied upon was false is not likely to be useful unless an inference can be raised that the affiant knew or ought to have known that the information was false. Simply pointing to omissions, inconsistencies, or conclusory or inaccurate statements is not a sufficient basis to permit cross-examination. Put another way, “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”;
3. 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. “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”; and
4. Cross-examination may be allowed on a wider basis if there is a reasonable basis to believe that an affiant has deliberately attempted to mislead the authorizing judge in some part of the ITO.

(R. v. Sadikov, 2014 ONCA 72, para 40; R. v. Pires, 2005 SCC 66, paras 41-43, 60; Green, paras 34-36; R. v. Reid, 2017 ONCA 430, para 17.)

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[1] In his notice, the applicant complained that the affiant set out Officer Woodcock’s description of watching the CCTV surveillance from 700 Dunlop Street and seeing Mr. Patrick exit the car. The applicant submits that it is impossible to see who exited the car. The applicant did not pursue this complaint during the oral hearing. I note that the impugned reference is only found in the warrant to obtain the victim’s medical records. As stated, the applicant does not have standing with respect to the victim’s medical records.