R. v. Garofoli, 2016 MBPC 67

Cite #2016 MBPC 67 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Raegan Rankin, for the Crown ) - and - ) ) Shawn Skrabek ) Kristen Jones, for the Accused ) ) Judgment delivered: November 16 2016 CORRIN, P.J. INTRODUCTION [1] Counsel for the accused seeks leave of the court to cross-examine the affiant of an Information to Obtain a Search Warrant(ITO) which resulted in a search warrant being granted by a Judicial Justice of the Peace on July 3, 2014.

The accused argues that thisright to cross-examination is of fundamental significance to the criminal trial process and is necessary for the defence to demonstratehow the issuing justice was mislead by the affiant and that such evidence received at a voir dire will provide a basis for exclusion of theevidence seized as a result of the search warrant pursuant to s. 24(2) of the Charter. [2] In R. v. Garofoli, (1990) (SCC), 2 S.C.R. 1421 the Supreme Court of Canada stated that there is no automaticright to cross-examine the affiant of a search warrant. A later decision of the Supreme Court, R. v. Pires; R. v.

Lising (2005) 2005 SCC66 , 3 S.C.R. 343 suggests that there must be a reasonable likelihood that the cross-examination of the affiant will elicittestimony of probative value to the issue before the reviewing judge (see para. 3). The court goes on to say that a Garafoli leaveapplication provides only a narrow window for cross-examination, not because the test is onerous but rather because the basis uponwhich an authorization can be satisfied is very narrow.

Therefore, if the proposed cross-examination is not likely to assist thedetermination respecting the issue of whether there is a basis on which the authorizing Justice could have granted the search warrantordered, it should not be permitted (see para. 8). The following excerpts from the Pires and Lising decision amplify these principles: • There is no question the right to cross-examine is a fundamental significance to the criminal trial process. However, it is neitherunlimited nor absolute. The extent to which it becomes a necessary adjunct to the right to make full answer in defence depends on thecontext.

The Garafoli threshold test requires that the defence show a reasonable likelihood that cross-examination of the affiant willelicit testimony of probative value to the issue for consideration by the reviewing judge. It is grounded in two principles of evidence:relevance and materiality. (para. 3) …. • There is no point in permitting cross-examination if there is no reasonable likelihood that it will impact on the question of theadmissibility of the evidence.

The Garafoli threshold test is nothing more than the means of ensuring that, when a s. 8 challenge isinitiated, the proceedings remain focused and on track. (para. 31) …. • The Garafoli threshold test is all about relevance if the proposed cross-examination is not relevant to a material issue, within thenarrow scope of the review on admissibility, there’s no reason to permit it. (para. 31) …. • As discussed earlier, the Garofoli leave requirement is simply a means of weeding out unnecessary proceedings on the basis thatthey are unlikely to assist in the determination of the relevant issues.

The reason that the test will generally leave just a narrow windowfor cross-examination is not because the test is onerous — it is because there is just a narrow basis upon which an authorization can beset aside. Hence, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictlyfocussed on the question to be determined on a Garofoli review — whether there is a basis upon which the authorizing judge could grantthe 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 gofurther and demonstrate that 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 . (para. 40 – italics are mine) [ 3 ] In Garafoli , the Supreme Court of Canada stated as follows at pp. 1465-66: “ When permitted the cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted.

The discretion of the trial judge should not be interfered with on appeal except in cases in which it has not been judicially exercised. While leave to cross-examine is not the general rule, it is justified in the circumstances in order to prevent an abuse of what is essentially a ruling on the admissibility to evidence.” [ 4 ] Defence therefore need not actually demonstrate that cross-examination will be successful in discrediting one of more of the statutory preconditions for the authorization.

All that must be shown is that there is a reasonable likelihood that cross-examination will assist the court in determining the material issue on review. [ 5 ] It is the accused’s position that the affiant omitted, exaggerated or mischaracterized information provided in his ITO. The defence argues that certain paragraphs of the ITO were inaccurately described or alternatively, that significant information was omitted there from.

In such regard defence seeks leave to cross-examine Winnipeg Police Service Detective Brad Balagus, the affiant, with respect to the following paragraphs, or parts thereof: 7, 9(b), 12(b), (c), (f), (g), 13, 16(b), 18 and 19. The paragraphs that provide a description of the accused [ 6 ] The affiant details at paragraph 7 the information relayed to him by Detective Sergeant Anastacio regarding the anonymous tip.

Defence counsel argues that on the face of the affidavit it is apparent that Detective Balagus relied on the reliability of the tipster’s evidence even though there was no way of knowing the source of the tipster’s knowledge and belief. It is defence’s contention that Balagus’s assertion that the other evidence is corroborative of the tip is inaccurate.

In such respect defence counsel cited a three inch discrepancy respecting the height of the accused and also an incorrect assertion that the house in question was white, a fact that was contradicted by photographs incorporated in Detective Balagus’s notes. [ 7 ] Crown counsel submitted that the tipster’s error with respect to height was essentially innocuous as it was similar. She also contended that the police authorities were not precluded from acting on information that may subsequently turn out not to be provable beyond a reasonable doubt.

The paragraphs that provide a description of the residence [ 8 ] These include paragraphs 12(b), (c), (

f) and (g). [ 9 ] These sub-paragraphs contain detailed descriptions respecting physical observations made by Detective Balagus about the residence. Balagus indicates that the residence is similar to the description provided by the anonymous tipster. Defence counsel observes that such is not actually the case as the house in question is not a two-story white house as related by the tipster but is rather a house with dark siding as shown in the officer’s notes and that the affiant is therefore providing a misleading opinion.

Defence counsel also asserts that cross-examination is required in this regard as same would be relevant in order to determine the reliability of the observations detailed therein. Similarly, defence asserts that cross-examination on this paragraph is relevant to determine the validity of the inference that is drawn with respect to an upstairs window being covered (see para. 12(f)). Defence also contends that observations made by the affiant with respect to yellow discoloration on the west-side of the residence are misleading with respect to the nature and significance of the discoloration.

The defence wishes to be permitted to cross-examine Detective Balagus with respect to his opinion that he believed staining was attributable to humidity and mould growth generated by a marihuana grow-op. Defence counsel is of the view that the officer’s conclusions regarding the cause of the staining requires more information. She also asserts that no discoloration was visible in the video taken by officers after the execution of the search warrant and that the description of where the discoloration was was inconsistent with the affiant’s notes.

FLIR conclusions [ 10 ] Defence asserts that she should be allowed to cross-examine in this area with respect to the assertion that the heat signatures were abnormal. It is her position that there is insufficient information contained in the ITO to establish the basis of such an opinion. Weather conditions prevailing on June 27, 2014 [ 11 ] As per paragraph 16(b)(

d) the affiant provided details relating to weather conditions when he detected an odour of marihuana immediately north of the subject residence. Defence asserts that the failure of the affiant to include information pertaining to the possibility that it was raining at the time created a misleading impression that he could actually observe such odours in the air. In such regard it was her assertion that falling rain would necessarily impede the officer’s ability to be able to do so.

Defence counsel also contended that she wished to cross examine the affiant in order to determine his ability to discern the difference in odour in growing and harvested marihuana. It was her contention that the affiant may have deliberately misled the Justice of the Peace in such respect in order to support a suspicion of a marihuana grow-operation as opposed to the existence of harvested marihuana. Paragraph 18 – July 4 th observations [ 12 ] At paragraph 18 the affiant provides details of observations made on July 4, 2014.

Defence observes such date to be an impossibility as the warrant was obtained on July 3, 2014. It is defence’s contention that cross-examination on this paragraph will be relevant to the over-all veracity of the ITO and the degree of care taken in drafting and reviewing same.

Paragraph 19 [13] Defence contends that there’s no basis for the affiant’s conclusion that there is “recent” anonymous information indicating theresidence in question contains a marihuana grow-operation. In such regard defence asserts that there’s no evidence respecting when suchinformation was obtained and that consequently this statement by Detective Balagus is materially misleading. Defence counsel assertsher right to cross-examine the affiant in order to determine why he described the information being “recent”.

The Crown’s response [14] The Crown submits that the defence allegations of weaknesses in the ITO content are not of themselves grounds for cross-examination. In such respect the Crown quoted from paragraph 11 of R. v. Riley, (ONSC) wherein Drambot, J.considered whether to allow cross-examination of an affiant in circumstances that the Crown feels were similar to the presentcircumstances:

(11) This ground for cross-examination exemplifies much of the approach of the applicants. They argue, in effect, that where there is aweakness in the affidavits, they should be entitled to cross-examine. I do not agree. The weaknesses in the affidavits are matters forargument upon the Garofoli application. They are not, of themselves, grounds for cross-examination. Only where some basis exists,however meager, that cross-examination on the point will elicit testimony tending to discredit the existence of one of the pre-conditionsto the authorization will cross-examination be permitted. Tipster Information – Paragraphs 7 and 9 [15] In

summary, the Crown therefore submits that any alleged weaknesses within the ITO are matters for argument upon theGarofoli hearing i.e. whether the search warrant should have been granted by the Justice of the Peace.

The Crown reminded the Courtthat the reliability of information, including an informant’s tip, must be determined by considering the totality of the circumstance, withspecific reference to three areas: 1) Was the information provided compelling as opposed to being simply a bold conclusory statement or mere rumour or gossip? 2) Was the source credible? 3) Was the information generally corroborated in any way by police investigation? [16] I was reminded by the Crown that weakness in one area may, to some extent, be compensated by strengths in the other twoareas. [17] In the present case, the Crown described the anonymous tip as being compelling because it provided the exact address, namedthe accused and generally described the accused.

The Crown argued that the affiant was, on the basis of the tip, able to corroborate sameand then conduct further investigation leading him to have reasonable grounds to believe that a marihuana grow-operation was indeedpresent at the address provided by the tipster. It was the Crown’s further submission that the tipster’s error with respect to the accused’sheight was somewhat innocuous as the over-all description was confirmed by comparing same to the police database.

She also arguedthat the anonymous tip respecting the description of the house, although it was partially incorrect because only the west and north sidesare painted white was still partially corroborated by Detective Balagus’s investigation. The Crown also reminded the Court that thetipster also provided the specific address of the grow-operation and that subsequent investigation ultimately corroborated thisinformation as well.

The Crown also emphasized that the residence description provided by the tipster was clearly similar to theresidence which was ultimately determined to be 583 Magnus avenue, the premises specified in the ITO. Court was also reminded thatthe officer’s investigation further found that although there was no actual house number on the residence that information found on theCity of Winnipeg Assessment and Taxation Database confirmed that the unmarked residence was indeed the same numbered addressthat was provided by the tipster.

Court was further reminded that the accused was determined by Detective Balagus through reference tothe Manitoba Driver’s License database to possess an active Manitoba driver’s license showing an address of 583 Magnus Avenue aswell as three vehicles registered to him at the same address. The Crown argued that the anonymous tip was compelling because itultimately provided not only the exact address of the grow-op but also a generally similar description of the house, the name of theaccused and a description of the accused, all of which were corroborated by the affiant when he conducted further investigation.

Paragraph 12(g), re: location of staining on house [18] Crown counsel submitted that defence has failed to provide any evidence that suggested that the cross-examination of theaffiant with respect to this subject matter set out in paragraphs 12(

c) and (

g) will elicit testimony that will undermine the basis uponwhich the authorizing Justice of the Peace could grant the warrant. The Court was reminded that the only evidence put before me in thisrespect was that of defence counsel and that defence counsel was not legally competent to provide testimony in such respect. Paragraph 12(f) – The Covered Second Level Window [19] This subject matter relates to the defence submission that Detective Balagus failed to provide sufficient detail for his conclusionthat the covered second story window was consistent with drug grow-op light regulation.

The Crown takes the position that the affiantsupported his reasons for providing his opinion based on details of his training and experience and cross-examination of the affiant inthis respect was not likely to be useful as there is really no question that Detective Balagus was, on the basis of his professionalbiography, able to render and provide such an opinion.

Paragraph 12(g) – Siding Staining [ 20 ] The Crown submitted that there was no factual foundation laid by the defence respecting the subject matter, as the defence had only referred to a video that she didn’t put before the Court as evidence.

Paragraph 13(b) – The FLIR Scan [ 21 ] The Crown reminded the Court that an affiant is permitted to rely on hearsay evidence regarding another investigator’s qualifications and observations and that Detective Lund was described to have observed abnormally high heat signatures on the overhead Hydro-service as well as a white plastic vent on the top north-facing floor area of the residence. The Crown submitted that there was no obligation on Detective Balagus to relay Detective Lund’s detailed findings i.e. that there’s no basis to conclude that Balagus edited the actual information imparted to him by Lund.

Paragraph 16(b) – Weather conditions and odour of fresh-growing marihuana [ 22 ] The Crown conceded that the affiant did not include an Environment Canada record of rain proximate to his observations made on June 27, 2014. The Crown, however, submitted that the defendant had failed to place any factual foundation before the Court that rain would impair the smell of marihuana. The Crown thus concluded that defence had failed to provide the necessary foundation for cross- examination of the affiant on this point.

Paragraph 16(d) – Odour of fresh-growing cannabis marihuana [ 23 ] The Crown submitted that no factual foundation has been established that the cross-examination of the affiant with respect to the difference between the odour of fresh-growing and harvested marihuana will elicit testimony that will undermine the basis upon which the authorizing Justice of the Peace could grant the search warrant. The Crown argues that the affiant appropriately set out his training and experience associated with and supporting his reasons for making such observation.

The Crown also observed that the execution of the search warrant had yielded both freshly-growing as well as harvested cannabis marihuana. It was the Crown’s contention that such a finding was indicative that Detective Balagus’s observations were not capable of being categorized as misleading exaggeration.

Paragraph 18 – Reference to July 4, 2014 [ 24 ] The Crown submitted that this was clearly only a clerical typographical error, that page 19 of the officer’s notes, which were filed with the Court, clearly indicate that the observations related in this paragraph were actually made on July 3, 2014 at 11:20am and not July 4 th . Paragraph 19 – The “recent” anonymous tip [ 25 ] The Crown argued that the affiant was entitled to describe the anonymous tipster information as “recent” as he had indicated that he was assigned to investigate such tip on June 19, 2014.

It was the Crown’s submission that there was nothing misleading in using the term “recent” in relation to when he was assigned given that the search warrant was only sought on July 3, 2014, only two weeks later. The Crown further argued that no factual foundation had been established by defence that the cross-examination of the affiant with respect to his use of the term “recent” in reference to the anonymous tip could have undermined the basis upon which the authorizing Justice of the Peace could grant the search warrant.

HAS THE THRESHOLD FOR BEING ALLOWED TO CROSS-EXAMINE BEEN SATISFIED? [ 26 ] The Court must now ask itself whether defence counsel’s proposed areas of cross-examination will assist the Court with the task of determining on a Garofoli review that the authorizing Justice of the Peace could have granted the order. At this stage defence counsel does not have to satisfy me whether the authorizing judge would have granted the order. At this stage the Court is focused specifically on whether such cross-examination will help the reviewing judge, myself, determine such issue.

Based on what has been outlined previously with respect to this ITO, this Court is satisfied that very little of the cross-examination proposed by defence counsel will be either relevant or material. It is the Court’s opinion that a basis for alleging outright error or exaggeration in this respect has only been made out in reference to the yellow discoloration that Detective Balagus said he observed on the white siding on the west side of the residence.

The Court agrees with defence that his conclusion that the staining resulted from a grow-operation certainly seems to be problematic as the affiant failed to refer to any air vents or fans that would allow the indoor/outdoor exchange he referred to in paragraph 12(g). In such regard the Court notes that the only vent or indoor/outdoor opening that was referred to in the ITO was described as being on the top floor, north face of the residence, not on the west side. [ 27 ] This Court therefore finds that counsel for the accused can cross-examine Detective Balagus on his ITO but only with respect to paragraph 12(g).

Such order is made because this Court has found that questioning in this area may be relevant and material as it may have changed how the authorizing Justice of the Peace viewed the application over-all. “Original signed by”

CORRIN, P.J.