R. v. Lebel, 2026 ONSC 4025

CITATION: R. v. Lebel, 2026 ONSC 4025

COURT FILE NO.: CR-25-140

DATE: 2026-07-09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Crown/Respondent

– and –

BRIAN LIONEL DONALD LEBEL

Accused/Applicant

Philipe Hamann, for the Federal Crown/Respondent

Jaimee Washburn, for the Accused/Applicant

HEARD: July 6, 2026

DECISION ON APPLICATION

Cullin j.

Overview

1The applicant, Brian Lionel Donald Lebel (“the applicant”), appears before the court charged with possession of fentanyl for the purpose of trafficking. That charge was issued following a search of premises located at 11 Lang Avenue, Kapuskasing, (“the premises”) on January 2, 2024.

2The search of the premises was conducted under the authority of a search warrant (“the warrant”). The applicant seeks leave to cross-examine D/C J. Morandin, the affiant of an information to obtain the warrant. This relief is sought in the context of a Garofoli review.

3The Crown objects to the applicant’s request. They argue that cross-examination is not necessary to enable the applicant to make full answer and defence, and that cross-examination will not assist the court in determining whether there was a basis upon which the authorizing Justice of the Peace (“J.P.”) could have issued the warrant.

The Test for Leave to Cross-Examine

4An accused does not have an absolute right to cross-examine an affiant of an information to obtain a search warrant (“ITO”). Leave to cross-examine must first be obtained.

5The requirement to obtain leave serves three objectives: ensuring the relevance of the cross-examination; managing the risk that cross-examination will inadvertently identify a confidential informant; and, circumventing unnecessary delays and the misuse of court resources: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 127.

6The test for granting leave was defined by the Supreme Court of Canada in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1465; namely, the Court should exercise its discretion to grant leave where it is satisfied that cross-examination is necessary to enable an accused to make full answer and defence.

7The threshold for demonstrating that cross-examination is necessary is not onerous, although the circumstances in which it may be granted are often narrow. An accused is not required prove that cross-examination will actually assist the court in its examination of the ITO. Conversely, a bare assertion that cross-examination will elicit helpful information is insufficient. The court must be satisfied that there is a “reasonable possibility” or a “reasonable likelihood” that evidence will be elicited which will assist it in determining whether there was a basis upon which the warrant could be granted: Garofoli, at pp. 1462-1466; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 SCR 343, at para. 40.

8If leave is granted, the permitted scope of cross-examination will necessarily depend upon the circumstances of the presenting case. Among other things, cross-examination may be directed at the credibility or reliability of an informant or the affiant. It may address the accuracy or the insufficiency of the ITO. The court must be satisfied, however, that the proposed cross-examination will not merely undermine a witness’ credibility or reliability, or expose errors, omissions, or overstatements in the ITO. It must be satisfied, considering the ITO as a whole, that the likely effect of the cross-examination will be to undermine the basis of the judicial authorization: Garofoli, at p. 1465; Pires, at paras. 41-44, 69; R. v. Camara, 2005 BCCA 639, at paras. 31-32; R. v. Ellard, [2004] BCJ No. 2915, at para. 20.

Positions of the Parties

The Applicant

9The applicant seeks to cross-examine D/C Morandin regarding the following issues:

a. D/C Morandin’s knowledge of a vehicle search disclosed in the ITO and his decision-making regarding the information disclosed about that search. The impetus for seeking the warrant was, in part, a traffic stop and a subsequent warrantless search of a vehicle and the subsequent discovery of a large quantity of drugs in a duffel bag in the back seat. Shortly before the traffic stop, the vehicle had been parked in front of the premises, and its occupants had visited the premises. The applicant seeks to cross-examine D/C Morandin about the information available to him about the warrantless search and the legality of the warrantless search (including a subsequent stay by the Crown of charges against the occupants of the vehicle), about his decision not to include further information about the nature or legality of the search in the ITO, and about the items seized in the warrantless search and the conclusions drawn about them.

b. D/C Morandin’s disclosure of information regarding a statement to police provided by Jim Lalonde. The applicant seeks to cross-examine the affiant regarding information disclosed in the ITO about a statement provided to police by an individual named Jim Lalonde. Specifically, he seeks to elicit evidence about D/C Morandin’s failure to disclose that the source of the information was a police summary of the statement and not the statement itself.

c. D/C Morandin’s reliance on information from a confidential informant (“CI”) in preparing the ITO. The applicant seeks to cross-examine D/C Morandin about how the credibility and reliability of CI information was corroborated, about the absence of information regarding issues such as CI compensation, and about the nature of the information that was redacted from the ITO and included in a tearaway appendix to the ITO.

10The applicant argues that the proposed cross-examination is necessary if he is to make full answer and defence to the charges before the court. He submits that the ITO is misleading and contains inaccurate statements and material omissions. He submits that the ITO fails to corroborate CI information and that it provides no meaningful information with which to assess CI credibility and reliability.

The Crown

11The Crown submits that the ITO as disclosed provides all the necessary information to mount a full answer and defence. In response to the issues raised by the applicant, they submit the following:

a. Issues regarding the legality of the underlying vehicle search are not within the domain of the ITO affiant. Rather, the affiant’s obligation is to provide sufficient facts for the issuing J.P. to determine whether it is appropriate to grant the warrant. The Crown also argues that their decision to stay the charges against the occupants of the vehicle is irrelevant in the context of a Garofoli analysis.

When questioned in submissions, the Crown conceded that there may be a basis for limited cross-examination regarding the connections drawn by the affiant between the drugs found in the vehicle, and the applicant and his residence.

b. The applicant has provided no basis upon which to question the accuracy or thoroughness of the synopsis of the Jim Lalonde statement.

c. The information sought regarding the CI infringes upon CI privilege. In their submissions, the Crown identifies CI privilege as a focal issue of concern. They note the tension in the context of an ITO between providing adequate information upon which to obtain the authorization and providing information so detailed that it would tend to identify the CI.

Analysis

The ITO and the Warrant

12The warrant was issued by Justice of the Peace Ann Johnson on January 2, 2024, and authorized the Ontario Provincial Police (“OPP”) to search the residence of 11 Lang Avenue, Kapuskasing, Ontario anytime between January 2, 2024 at 6:30 p.m. and January 3, 2024 at 11:59 p.m.

13The ITO was sworn by D/C J. Morandin of the OPP on January 2, 2024. It included the following:

a. Appendix A: List of items to be searched for and seized including cocaine and methamphetamine.

b. Appendix B: List of suspected offences to be investigated. With respect to Mr. Lebel, the offences listed were possession of methamphetamine and cocaine for the purpose of trafficking.

c. Appendix C: Affidavit establishing factual foundation for requesting the warrant.

14Also before the J.P. was a tearaway appendix providing particulars regarding the CI, including information regarding criminal record (if any), outstanding charges (if any), particulars regarding prior involvement in investigations, and particulars regarding their handlers.

15The materials before me consist of the warrant and the ITO including Appendix A, Appendix B, and a redacted version of Appendix C. I did not receive a sealed, unredacted version of Appendix C, the tearaway appendix, or any proposed judicial summaries.

D/C Morandin’s knowledge of a vehicle search disclosed in the ITO and his decision-making regarding the information disclosed about that search

16As previously noted, the impetus for seeking the warrant was, in part, a traffic stop and subsequent search of a vehicle that led to the discovery of a large quantity of drugs. Shortly before the traffic stop, the vehicle had been parked in front of the premises, and its occupants had visited the premises. This information, combined with the statement provided to the police by Jim Lalonde and CI information, implicating the applicant in drug possession and trafficking, formed the basis for the warrant request.

17The applicant is critical of the fact that D/C Morandin failed to disclose in the ITO that the vehicle search was warrantless. He argues that the search was tainted by Charter issues, as evidenced by the fact that the charges against the occupants of the vehicle were subsequently stayed by the Crown. He argues that D/C Morandin ought to have disclosed the constitutional basis for the search.

18The applicant is also critical of D/C Morandin’s failure to establish a clear connection between the vehicle and its occupants, and the applicant. He notes that there is no information that the applicant was observed in the vehicle. The ITO relies instead on the fact that the occupants of the vehicle visited the applicant’s residence for approximately one and a half hours shortly before the traffic stop.

19The Crown argues that the warrantless nature of the vehicle search was a reasonable inference to be drawn on the facts disclosed, and that it was not necessary to explicitly state in the ITO that the vehicle search was, in fact, warrantless.

20It is trite law that an authorizing J.P. is permitted to draw reasonable inferences from the evidence in an ITO: R. v. Vu, 2013 SCC 60, at para. 16. The existence of other possible inferences on the same evidence does not necessarily negate reasonable grounds: R. v. Anderson, 2024 ONSC 5489, at para. 25. Opinion evidence from an ITO affiant regarding the possible or intended inferences to be drawn from facts or evidence is irrelevant: R. v. Riley, 2008 CanLII 63219 (ON SC), at para. 14.

21While the applicant is permitted to challenge the reasonableness of any inferences relied upon by the Crown on the face of the ITO, I am not satisfied a cross-examination is reasonably likely to elicit evidence that will assist the Court in determining that issue or in examining the role of inferences in grounding the warrant. In the circumstances, cross-examination regarding the affiant’s failure to explicitly disclose that the vehicle search was warrantless will not be permitted.

22I am also not persuaded by the applicant’s argument that cross-examination should be permitted regarding D/C Morandin’s failure to disclose the constitutional basis for the vehicle search. The role of an ITO affiant is to state facts and disclose evidence, not to opine on constitutional issues. Such opinion evidence would not have assisted the J.P. in reviewing the ITO, and it will not assist this Court in examining the grounds for the resulting warrant. Cross-examination will not be permitted on this issue.

23I would note as an aside that the Crown raised the issue of the applicant’s standing to advance arguments regarding the constitutionality of the vehicle search in the context of a Garofoli application. It is not necessary that I determine that issue at this stage of the application. It can be addressed after cross-examination (if any), when the applicant addresses his requested excisions (if any) to the ITO.

24In my view, there is merit to the applicant’s submission that the ITO provided limited information regarding the connection between the duffel bag of drugs found during the vehicle search and the applicant. The ITO discloses that the occupants of the vehicle were observed visiting the applicant’s residence however, there is no evidence establishing either that the duffel bag or any of the contents of the duffel bag were observed entering the applicant’s residence. At paragraph 30 of the ITO, however, D/C Morandin expresses the belief that cocaine from the duffel bag had been delivered to the applicant during the visit. As noted, the Crown conceded in argument that this is in appropriate subject for cross-examination. This is an issue on which cross-examination will be permitted.

25Specifically, I am prepared to grant leave to cross-examine regarding the following issues:

a. D/C Morandin’s knowledge, either personally known or related to him by third parties, regarding the connection between the duffel bag found in the back seat of the vehicle, or any of its contents, and the applicant’s residence.

b. D/C Morandin’s knowledge, either personally known or related to him by third parties, regarding the connection between the duffel bag found in the back seat of the vehicle, or any of its contents, and the applicant personally.

c. D/C Morandin’s basis for the belief expressed in paragraph 30 of the ITO that the occupants of the vehicle gave drugs to the applicant to sell.

D/C Morandin’s disclosure of information regarding a statement to police provided by Jim Lalonde

26The ITO disclosed that, while investigating an incident that occurred on December 16, 2023, police interviewed Jim Lalonde as a suspect. During that interview, Mr. Lalonde advised police that he had delivered drugs to the applicant. The ITO disclosed that police had subsequently interviewed the applicant, who denied receiving drugs from Mr. Lalonde.

27The applicant is critical of the fact that D/C Morandin reviewed only a written synopsis of the witness statement provided by Jim Lalonde, rather than the statement itself, and presented information regarding the statement in the ITO without disclosing that limitation.

28There is no requirement that an affiant limit themselves to information within their personal knowledge when preparing an ITO. The affiant of an ITO is entitled to rely upon the information of other officers, unless there is a reasonable cause to doubt the credibility and reliability of that information: World Bank Group, at para. 123; R. v. Ahmad, 2020 SCC 11, [2020] 1 SCR 577, at para. 82.

29The Crown argues, and I agree, that the applicant alleges no basis upon which D/C Morandin ought to have questioned the credibility or reliability of the synopsis that he received from other officers regarding the statement of Jim Lalonde. There is no evidence of any actual or potential errors, omissions, or misinformation in the synopsis that ought to have triggered a further level of inquiry by D/C Morandin.

30I am not satisfied that the proposed cross-examination is reasonably likely to elicit testimony tending to undermine the existence of one of the preconditions to the authorization, or that is reasonably likely to assist in the court in determining whether there was a basis upon which the warrant could be issued. Leave is not granted to cross-examine on this point.

D/C Morandin’s reliance on information from a confidential informant (“CI”) in preparing the ITO

31The applicant is also critical of the limited information provided regarding the reliability of the CI referenced in the ITO. He notes that the ITO discloses that the CI’s information has been acted on once by police with no further particulars regarding the results of that investigation. He notes that the ITO fails to disclose any compensation, monetary or otherwise, provided to the CI. He notes that the ITO fails to disclose the independent investigative steps, if any, taken to corroborate the CI’s information in relation to this investigation.

32In argument, however, the applicant failed to reconcile the fact that the ITO also included a tearaway appendix which included detailed information regarding the CI and their involvement in the investigation. While this information is not available to the applicant, it was available to the authorizing J.P.

33CI privilege is recognized as a rule of “ancient and hallowed protection which plays a vital role in law enforcement”: R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, at p. 289. There is no right to CI disclosure, and the application of CI privilege is not subject to the exercise of judicial discretion: Garofoli, at pp. 1457-1462; R. v. Omar, 2007 ONCA 117, at para. 38. The use of redactions and tearaway appendices are sanctioned tools that protect the identities of CI’s from disclosure during the process of reviewing warrants.

34When an accused seeks to challenge the credibility and reliability of redacted CI information, cross-examination is often not the most suitable approach for eliciting evidence. As noted in R. v. DeSantis, 2017 ONSC 5883, at para. 31:

It would be difficult to draw the line required under R. v. Garofoli to protect the identity of the CI, or to guard against questions that would narrow the pool of those persons who would likely be known to the accused as the CI. The scope of the cross-examination in this case would be so narrow, in fact, that the danger of infringing on those limits would essentially negate its utility.

35Garofoli applications provide procedures through which an accused may seek access to redacted information; specifically, at steps 2 and 6. Often, these procedures result in judicial summaries which can be used by the accused in argument to challenge the warrant.

36While it is not a foregone conclusion that the applicant will be successful in accessing additional details about redacted information through the Garofoli application, it is my view that, in this case, that route is preferable to cross-examination. In the absence of particulars about the information contained in the redactions and the tearaway appendix, it is difficult for the court to establish parameters for a cross-examination that would remain within the boundaries of CI privilege. Such particulars would be available in other steps of the Garofoli application and, as noted, would allow the court to manage disclosure (if any) with more confidence.

37In the circumstances, leave is not granted to cross-examine. This determination is made without prejudice to the ability of the applicant to seek disclosure of redacted information or summaries of redacted information in the balance of the Garofoli application.

Disposition

38For the reasons given, the applicant’s request for leave to cross-examine is hereby disposed of as follows:

1The applicant is granted leave to cross-examine D/C J. Morandin, the affiant of the Information to Obtain a Search Warrant, sworn January 2, 2024 (“the ITO”), regarding the following issues:

a. His knowledge, either personally known or related to him by third parties, regarding the connection between the duffel bag found in the back seat of the Kia vehicle bearing Ontario plate CSVR754, or any of its contents, and the applicant’s residence.

b. His knowledge, either personally known or related to him by third parties, regarding the connection between the duffel bag found in the back seat of the Kia vehicle bearing Ontario plate CSVR754, or any of its contents, and the applicant personally.

c. The basis for his belief expressed in paragraph 30 of the ITO that the occupants of the Kia vehicle bearing Ontario plate CSVR754 gave drugs to the applicant to sell.

2Leave to cross-examine is granted without prejudice to any submissions or objections by the Crown regarding issues of confidential informant privilege.

3All other requests by the applicant for leave to cross-examine are dismissed. This determination is made without prejudice to the ability of the applicant to seek disclosure of redacted information or summaries of redacted information in the Garofoli application.

Cullin, J.

Released: July 9, 2026

CITATION: R. v. Lebel, 2026 ONSC 4025