R. v. Tekleab, 2023 MBPC 51

CITATION: R. v. Tekleab, 2023 MBPC 51 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) ) Bryton Moen and Erin Dunsmore ) ) for the Crown (Respondent) - and – ) ) ) Abel Tekleab ) ) Shimon Segal for the Accused (Applicant) ) ) ) ) Reasons for Decision on Application to Cross- Examine Affiant ) Delivered: October 13, 2023 Corrected Judgment: An Erratum was filed on November 7, 2023. The text of the Erratum is appended at the end of the reasons of the initial judgment, which is reproduced here with corrections. CARLSON, P.J.

Introduction [ 1 ] The Applicant is charged with sexual assault and sexual interference. [ 2 ] It is alleged that on August 12, 2020, the Applicant picked up 12 year old S.M., who was walking in the area of Main Street and Redwood Avenue, in Winnipeg, Manitoba, drove her to a house at **** Avenue, used a key to get into a room there on the second floor, which he locked once he and S.M. were inside, briefly used his cellular phone, and then put his penis inside S.M.’s vagina and had sexual intercourse with her, before giving her $15 cash and telling her to leave.

S.M. walked to a nearby 7-11 store, and used a bystander’s phone to call police. Police attended, and the investigation into the offences began. [ 3 ] In the course of the police investigation, three production orders were granted on the strength of an Information to Obtain (“ITO”).

After information was provided pursuant to the production orders, and after forensic evidence was analyzed from exhibits taken during S.M.’s sexual assault protocol exam, a further ITO was submitted, based on which a warrant was granted permitting police to take a DNA sample from the Applicant. [ 4 ] The Applicant has filed applications challenging the sub-facial and facial validity of the three production orders and the DNA warrant.

He argues that the taking of his DNA amounted to an unlawful search and seizure and a breach of his s.8 right guaranteed by the Canadian Charter of Rights and Freedoms (the “ Charter ”). The Applicant ultimately seeks exclusion of the DNA evidence pursuant to s. 24(2) of the Charter . [ 5 ] The Applicant has applied for leave to cross-examine Winnipeg Police Services (“WPS”) Detective Emily Meronyk, the affiant of the ITOs filed in support of the production orders and the DNA warrant. [ 6 ] This is the decision on the application seeking leave to cross-examine Detective Meronyk on the ITOs.

Issue [ 7 ] The issue on this application is whether the Applicant should be granted leave to cross-examine Detective Meronyk on the ITOs she filed in support of the three production orders and on the ITO she filed in support of the DNA warrant.

[8] Although it is ultimately the DNA evidence that the Applicant seeks to exclude, since the obtaining of the DNA warrant wasbased on an ITO that included information obtained in response to the production orders, on this application, it is really the ITO filed insupport of the production orders that is targeted for cross-examination. The Production Orders and DNA Warrant [9] Three production orders were granted on October 9, 2020 by Justice of the Peace Jowett (which will be referred to collectivelyas the “production orders”) based on Detective Emily Meronyk’s ITO sworn on October 9, 2020.

These orders required TELUSCommunications (“TELUS”) to provide certain information relative to phone number ***-***-**** (the “specified phone number”), forthe period on August 12, 2020, from 2:00 p.m. to 5:00 p.m. [10] The production orders are: 1. A Production Order pursuant to s. 487.014 of the Criminal Code requiring TELUS to provide subscriber information for thespecified phone number, including the client name, address and associated IMEI numbers; 2.

A Production Order pursuant to s. 487.016 of the Criminal Code requiring TELUS to provide transmission data for accountsassociated to the specified phone number including communication logs, incoming/outgoing calls and texts (excluding the substance ofcommunications); and 3.

A Production Order pursuant to s. 487.017 of the Criminal Code requiring TELUS to provide tracking data pertaining to thespecified phone number, including all cell towers associated with incoming/outgoing communications. [11] After information was provided to police pursuant to the production orders, and after results were available from exhibits takenduring S.M.’s sexual assault protocol exam, Detective Meronyk submitted another ITO, on February 4, 2021, seeking a warrantpermitting the taking of a DNA sample from the Applicant. That DNA warrant was issued on February 4, 2021 by Judge Heinrichs.

ThatDNA warrant was executed and a DNA sample was taken from the Applicant. What is the test for leave to cross-examine an affiant? [12] A Garofoli hearing is narrow in scope. Its purpose is not to test the merits of the Crown’s case. The truth of any allegations inan ITO, upon which the Crown wants to rely, has to be proved by the Crown in the trial proper. A Garofoli review is only to determinewhether relevant evidence obtained pursuant to a presumptively valid authorization is admissible (R. v. Garofoli, (SCC),[1990] 2 SCR 1421; R. v. Pires; R. v.

Lising, 2005 SCC 66 , [2005] 3 SCR 343 at para 30). [13] There is no automatic right to cross-examine the affiant of an ITO filed in support of an authorization granted (Pires; Lising atpara 38). In fact, cross-examination of an affiant “will not generally be granted” (R. v.

Damianakos, (MBCA) at p. 9). [14] The onus is on the Applicant to show an evidentiary basis for cross-examination of the affiant (Pires; Lising at para 31). [15] Cross-examination of an affiant should only be allowed when the judge is satisfied there is a reasonable likelihood that theproposed cross-examination will elicit testimony tending to discredit one or more of the preconditions for the issuance of theauthorization (Garofoli, at p. 1465). [16] The Supreme Court of Canada made it clear in Pires and Lising that a purposive approach must be used when a court isdeciding whether to permit cross-examination of an affiant, and noted: …The reason that the test will generally leave just a narrow window for cross – examination is not because the test is onerous- it isbecause there is just a narrow basis upon which an authorization can be set aside.

Hence, in determining whether cross-examinationshould be permitted, counsel and the reviewing judge must remain strictly focused on the question to be determined on a Garofoli review– whether there is a basis upon which the authorizing judge could grant the order. (para 40) [17] The test for leave to cross-examine balances the competing interests of an accused’s right to make full answer and defence withthe court’s obligation to make effective use of limited judicial resources by avoiding unnecessary and time-consuming proceeding(Garofoli, at p. 1465). [18] The focus on an application to cross-examine is on the reasonableness and honesty of the affiant’s belief as to the existence ofthe requisite grounds at the time of taking the ITO, and not on the ultimate accuracy of the information relied on by the affiant (Pires, atparas. 41-43). [19] The same test relative to the issuance and review of search warrants applies to production orders. (R. v.

Wahabi, 2021 MBQB266 at para 41) [20] If an affiant is not warranted in her belief that information contained in an ITO was true, then the basis for one or more of thestatutory conditions for an authorization to be issued could disappear. Cross-examination should be permitted if it would go to the affiantnot being honest in her statements in an ITO (Garofoli, at p. 1466). If cross-examination is to be permitted on the basis the affiant mayhave been dishonest or known information in the ITO was false, the applicant must provide an evidentiary basis for the judge to makethat finding or inference. (R. v.

Petit, 2009 MBQB, unreported decision of McCawley J.)

Statutory preconditions for the issuance of the production orders [ 21 ] Since leave to cross-examine on the ITOs is only to be granted where it would likely elicit evidence as to whether the preconditions for their issuance were met, it is critical to set out what the preconditions for the issuance of each of the three production orders are. [ 22 ] For a production order for subscriber information to have been validly authorized, it is required that the affiant of the ITO demonstrate she has reasonable and probable grounds to believe that: (

i) an offence has or will be committed; and (ii) that the document or data is in the possession or control of the party and will afford evidence of the offence ( s. 487.014 Criminal Code ). [ 23 ] For a production order for transmission data to have been validly authorized, it is required that the affiant demonstrate she has reasonable grounds to suspect: (

i) an offence has or will be committed that; and (ii) that a document or data is in the possession of the party and will assist in the investigation of the offence ( s. 487.016 Criminal Code ). [ 24 ] For a production order for tracking data to have been validly authorized, it is required that the affiant demonstrate she had reasonable grounds to suspect that: (

i) an offence has or will be committed; and (ii) that the tracking data in possession of the party will assist in the investigation of the offence ( s. 487.017 Criminal Code ). [ 25 ] There is no precondition for any of the orders that the affiant have grounds to believe, or even suspect, that a particular person was involved in the offence.

The information in the ITOs going to grounds for the production orders As to reasonable and probable grounds to believe (or suspect) that an offence has or will be committed [ 26 ] The valid issuance of all three production orders requires that Detective Meronyk had reasonable and probable grounds, either to believe (as to the subscription data order) or to suspect (as to the other two production orders) that an offence has or will be committed. [ 27 ] In the ITO, Detective Meronyk sets out details in the report of Constable Stubler, who interviewed S.M. shortly after the incident on the same day, when he met with her starting at 5:04 p.m.

That report recites details given by S.M., including that she was 12 years old, that she was picked up by an unknown male in a black car, and taken to a residence where he sexually assaulted her.

The report also indicates that during S.M.’s sexual assault protocol exam conducted at the hospital shortly after the incident, a vaginal tear was observed, a stain on S.M.’s groin/thigh crease was located, and that that S.M.’s injuries appeared to be recent. [ 28 ] This is the information Detective Meronyk puts forward in the ITO to support that she believed a male had committed the offences of sexual assault and sexual interference against S.M.

The court will ultimately have to decide if that information could have supported the issuing judge finding that Detective Meronyk did have reasonable and probable grounds to believe (and to suspect) an offence had been committed. [ 29 ] The question has to be determined whether cross-examination of Detective Meronyk will likely elicit evidence that would discredit this ground having been found by the issuing justice to have been established.

As to reasonable and probable grounds to believe (or suspect) that documents or data in the possession of TELUS Communications will afford evidence of the offence” (as to the subscriber information) or “will assist in the investigation of the offence” (as to the tracking and transmission date) [ 30 ] Detective Meronyk in the ITO sets out information that ultimately leads to the specified telephone number.

Detective Meronyk requested information from an officer with the WPS Technological Surveillance Unit who advised the specified phone number was an active number assigned to TELUS Communications Inc. and provided the address of TELUS. [ 31 ] Detective Meronyk explains in the ITO that the production of subscriber information, transmission data and tracking data for the specified phone number on August 12, 2020 between 2:00 p.m. and 5:00 p.m. would afford evidence of the offences and would assist in the investigation.

Subscriber data would confirm the identity of the subscriber of the specified phone number at the time the offences were being committed. Transmission data for that period for the specified phone number, to include incoming and outgoing calls and text messages, would aid in identifying any witnesses. Tracking data for that time frame for the specified phone number, to include all cell

towers associated with the incoming and outgoing communications for that number, would allow investigators to place the phone in the area at the time of the offences and could allow investigators to track the movements of the phone prior to, during and following the sexual assault. [ 32 ] The real challenge on this application is as to the information Detective Meronyk puts in the ITO that ultimately leads to the specified phone number being the phone number about which data is sought. [ 33 ] In that regard, a

summary of the information Detective Meronyk puts forward in the ITO to support seeking data relative to the specified phone number includes: • T he details given by S.M. in her videotaped statement and to police about the incident – including that on the date in question she was walking in the area of Main Street and Redwood Avenue; a male pulled up in a black car and asked her how old she was; she said she was 12; he told her to get in the car, which she did; he drove them to a residence and took her inside; they went to a suite on the second floor which he unlocked with a key and locked once they were inside; he used his cell phone briefly; he took his clothes off and then hers; he put his penis in her vagina; something came out of his penis; he then told her she had to leave and gave her $15; she walked to the 7-11, called police and then gave them these details when police arrived.

S.M. provided police with a basic description of a black car she says her attacker picked her up in, and drove her to the residence where the attack took place, and provided a very general description of her attacker. She was not able to identify her attacker from a photo lineup. • The next day, S.M. and a worker from her home were driving around the area and S.M. identified the residence where the sexual assault took place. The address of that residence was **** Avenue.

Police were advised. • An officer observed that a couple days after the incident a small black four-door car was observed on the street in front of **** Avenue. • Manitoba Public Insurance checks on the license number of that vehicle showed an active registration to the Applicant, and indicated his date of birth and his address as **** Avenue. • Police records showed that on three prior occasions, police had been contacted from the specified phone number by a person who identified himself as the Applicant and relative to disputes with females.

On those occasions he identified he was at home at **** Avenue and on one occasion police attended there to meet with him, at ****. On a fourth occasion, March 2, 2020, police used the specified phone number to contact the Applicant after a female contacted police and accused the Applicant of taking her phone and wallet. The specified phone number is the one for which information was requested in the ITO. The Applicant was not arrested on any of these contacts with police.

Detective Meronyk states her belief that the Applicant uses the specified phone number. • Detective Meronyk obtained information from the property manager of **** Avenue that **** Avenue is upstairs, and that **** had a lease agreement from February 2019 to January 31, 2020 with three occupants on the lease. One of the occupants was listed as the Applicant, who had the specified phone number.

The information, as at the date Detective Meronyk spoke to the property manager on October 7, 2020, was that the Applicant still resided in **** Avenue, although the lease had expired. [ 34 ] The question has to be determined whether cross-examination of Detective Meronyk will likely elicit evidence that would discredit that she had reasonable and probable grounds to believe that the information requested relative to the specified phone number would afford evidence of the offences, and that she had reasonable grounds to suspect such information would assist in the investigation of the offences.

Proposed areas of cross-examination [ 35 ] The Applicant’s counsel set out in submissions a list of the areas in which he proposed to cross-examine Detective Meronyk. [ 36 ] As well as the specific areas of proposed cross-examination, the Applicant argues that Detective Meronyk in her ITOs did not make full, fair and frank disclosure, that she deliberately did not include some relevant information that she was aware of, and that she included some information, which she ought not to have. [ 37 ] The areas of the ITOs on which the Applicant says cross-examination of Detective Meronyk is necessary are as follows: • Detective Meronyk’s experience writing search warrants; • The fact Detective Meronyk did not name the Applicant in the ITO as the alleged perpetrator when it is clear that she had his identification, and was focused on him as the accused; • The inclusion of information as to the Applicant’s phone number, name and address based on prior calls from the Applicant to police seeking assistance, and the call from someone else about the Applicant that necessitated police calling him and attending to his residence; • The inclusion of the statement that the Applicant “targets unknown females”; • Including that the Applicant’s past involvements with police are “similar in nature to the sexual assault S.M. described”; • The exclusion of the words “low functioning” in relation to S.M., and that she functioned at the age of a 7 or 8 year old, according to information given to Constable Stubler by staff at S.M.’s residence; • The exclusion that S.M. described the house where she was sexually assaulted as being a three storey house when the residence at **** might be described as being two storeys; • Failure to indicate certain items of information in the ITO as being hearsay;

• Stating that she “heard” S.M. say, in her interview, the address of **** (when in fact S.M. did not specify the address in the interview, and the address was determined after she went with a staff member and located the residence); • Excluding that the police had the name of “Elaine”, S.M.’s staff that went with S.M. to locate the house the day after the offence, but took no statement from her, nor got her last name; • That Detective Meronyk did not follow up with other staff members of S.M.’s residence; • Including that police intended to do further investigation and interview other people when it never happened and should have been done before seeking he production orders; • Excluding that when E. took S.M. to the **** address, there was no car present there; • Excluding from the description of the property at ****, that one could not park at the front versus the back on the grass; • Including that S.M. said the male parked at the rear of the house while excluding that S.M. actually told the interviewer that he parked in the front yard on the grass; • Excluding details of the description of the property, surrounding grass and parking areas at ****; • Failing to include photos of the residence at ****, so the judge could determine if there is consistency between what is described and the actual location; • Excluding that the police took an unrecorded statement from Mike Mahone (a staff member from S.M.’s residence who brought her to have her statement taken) just after taking a recorded statement from S.M.; • Excluding that S.M. was unable to describe the inside of the car other than saying it was blank, basically and light grey; • Excluding S.M. said the car was small, pure black and kind of like a police car but smaller; • Excluding a fulsome description of the vehicle that does belong to the Applicant; • Including the words S.M. used in her interview of “in a threatening way”, to describe the attacker telling her to get in the car, but not including that S.M. also said in her interview that she did not hear the “or else” part (which words she had earlier agreed with the 911 operator were said by the attacker); • Excluding that later police learned perhaps a condom was not worn by the offender; • Excluding that police had no evidence the Applicant was driving his vehicle on the day of the offence; • Excluding that she spoke to the property manager of **** and was provided with information about tenants; • Excluding there were other tenants of the property at ****, and at least two other tenants of ****, at least during the time of the lease. • Excluding that the lease for ****that included the Applicant as a tenant was expired; • Excluding a copy of the lease for ****; • Excluding information as to what cars the other tenants drive; • Excluding information as to what guests if any were being housed by the tenants of ****and descriptions; • Excluding any descriptor of the Applicant or any other resident at ****; • Including the Applicant’s phone number without any evidence as to whether it was known as being a shared phone number or not, and what, if any, steps police took to determine that; • Explaining what tool enabled police to know the number was associated with TELUS before seeking the production order; • Excluding that S.M. was shown a photo pack, including a photo of the Applicant, and said “I don’t know if any of those are him”; • Excluding if the Applicant’s roommates at **** were or were not included in the photo lineup shown to S.M.; • Excluding if anyone from **** or the basement was in any lineups shown to S.M.; • Excluding that the police did not investigate other tenants; and • Including the contention that the tracker information would assist in the investigation.

Consideration of the proposed areas of cross-examination [ 38 ] None of the proposed areas of cross-examination are likely, in my view, to elicit evidence that could impact whether a reviewing judge could find Detective Meronyk had reasonable and probable grounds to believe (and to suspect) a sexual assault and sexual interference had been committed by someone. There is no evidentiary basis provided to even suggest that an offence was not committed.

[39] The crux of the consideration is whether one or more of the proposed areas of cross-examination is likely to elicit evidence thatcould discredit whether Detective Meronyk had, at the time she swore the ITO, reasonable and probable grounds to believe that TELUShad subscriber information that would afford evidence of the offences and had reasonable grounds to suspect that TELUS hadinformation, in the manner of transmission and tracking data, that would assist in the investigation of the offences. [40] It is important to remember that an ITO is not evidence on a trial.

An ITO, and orders granted based thereon, are investigatorytools. Each item of information in an ITO has to be taken in the context of all the other information in the ITO, and the ITO has to beconsidered in its totality to determine whether the requisite grounds for authorization are established. [41] I have considered each of the areas proposed by the Applicant carefully.

Each of the proposed items of cross-examination fitsinto one of the general areas with respect to which I make the following comments. [42] Detective Meronyk’s experience with warrants is irrelevant to the considerations on this application. [43] Matters that might go to the reliability or credibility of S.M.’s evidence (such as information as to whether S.M. was lowerfunctioning, whether she was unable to provide a more detailed description of the perpetrator or the vehicle than she did, and whethershe could accurately recall everything the perpetrator said to her during the commission of the offences) are in my view irrelevant to theconsiderations on this application.

None go to the requisite grounds for any of the production orders. [44] As to the various items of hearsay evidence Detective Meronyk provides in the ITO, an affiant in an ITO is entitled to rely onhearsay evidence as long as she provides information as to who said it and that she believes it to be true.

Detective Meronyk identifiesthe sources of the hearsay information and makes that statement at the start of her affidavit attached as Appendix A to the ITOs that “Ibelieve the information contained in this affidavit to be true and accurate, whether I learned it first hand or from others”. [45] As to the fact Detective Meronyk in the ITO says that she heard S.M. say to the interviewer that the attack took place at ****Avenue, when in fact S.M. did not say the specific address during that interview, while that is indeed the case, an affiant in an ITO isentitled to synthesize material in an investigation in order to draft an ITO concisely (R. v.

Plant (SCC), [1993] 3 SCR281 at p. 298). [46] The Applicant takes great exception to Detective Meronyk including in the ITO information gleaned by police during their fourcontacts with the Applicant, either when he called police for assistance or when a complainant called police about the Applicant.

Policeacquired information as to the fact the Applicant resided at **** Avenue, and as to the same specified phone number during each ofthese contacts. [47] As to these matters raised by the Applicant, although Detective Meronyk perhaps oversteps to say that the Applicant “targetsunknown females” based on the incidents described, and that the incidents described are “similar in nature” to the offences beinginvestigated, Detective Meronyk does say that the Applicant was not arrested or convicted relative to any of these incidents and she doesset out the specifics of each incident.

The issuing justice would be able to determine whether this information impacts the detective’sgrounds for the authorization. There is no authority I was provided with, nor am aware of, that would preclude the information as to theApplicant’s phone number or address obtained or used in an interaction with police from being used in an ITO as part of a differentinvestigation. Certainly, police are entitled to use their own databases in the course of investigations.

Further, I cannot see how cross-examining on this area could elicit evidence impacting whether Detective Meronyk had the requisite grounds for the authorization. [48] Some of the areas of proposed cross-examination deal with further steps in the investigation that Detective Meronyk said policewere going to take, or that the Applicant suggests should have been taken but had not taken by the time of the ITO.

These areas includefollowing up with “E.” and other staff members of S.M.’s residence, following up with Mike Mahone, doing further investigation as tothe other tenants at **** and specifically at ****, including whether any of the residents there had any guests at the time of the allegedoffences, any descriptions of any other residents at ****, whether there was any evidence the Applicant was driving his vehicle on theday of the offence and /or if anyone else was, and failing to include photos of the residence at ****, so the justice or judge coulddetermine if it is possible that there are consistencies between what is described and the actual location. [49] Production orders are investigatory tools.

That is why the requisite grounds to obtain them only require that they will “affordevidence of the offence” or simply will “assist in the investigation of the offence”.

Cross-examination as to what police might have donelater, even if they anticipated to do it at the time the ITO was done, and whether photos were included or not, will not likely elicitevidence to impact whether a justice could have granted the authorizations. [50] There were some areas dealing with information the Applicant argues were improperly omitted from the ITO, including thatS.M. said the male parked at the back of the house while excluding her actual evidence which was that it was at the front, and that S.M.described the house as being three storeys (when information about the house at **** suggests it may be two storeys above ground).

The first matter does appear to be an error, or omission, in Detective Meronyk’s recitation of the facts. There is no evidence provided tosuggest this was a deliberately made false statement. Simple errors in an ITO do not, alone, give rise to a right to cross-examine theaffiant (R. v. Camara, 2005 BCCA 639 at paras 31-32). The second is a matter of

interpretation but I cannot see that eliciting furtherinformation about it, in the context of all the other information in the ITO, could impact a finding as to whether the grounds for theauthorizations to be issued were present. [51] The Applicant takes exception to the fact in the ITO, the perpetrator is referred to as the “unknown male” when by the time theITO is written, it was obviously clear (says the Applicant) to Detective Meronyk that it is the Applicant who is the target ofinvestigation.

S.M. did not know her assailant and could not identify him from a photo pack – hence, the use of the term “unknownmale” does not seem inappropriate. Detective Meronyk sets out the information that led her, based on information about the residenceidentified as the site of the offences, and upon further investigation, to a phone number linked to a resident of the relevant suite at thataddress, to make it clear the Applicant is of interest.

There is no evidence put forward to suggest Detective Meronyk was not beinghonest or forthright in setting out this information. [52] The Applicant seeks to cross-examine on issues relative to S.M.’s descriptions of the car in which she was taken, and of the

perpetrator.

The descriptions are indeed not particularly detailed, but the information provided will speak for itself and be the information upon which the issuing justice had available in making a decision to issue the authorizations. [ 53 ] In my view, given all of that information in its totality, without examining each individual piece of information in the ITO, cross-examination is simply not likely to elicit evidence that would impact a determination as to whether there were reasonable grounds to believe that information from TELUS as to who the subscriber was to the specified phone number, as to its location (within a specified area) during the specific timeframe, and whether calls were made or incoming during that time, would afford evidence of the offence ( as to subscriber information), or could assist in the investigation (as to the tracking and transmission data). [ 54 ] The information provided in the ITO establishes a link between the offences, a specific suite at a specific address, a vehicle, and then a phone number that is linked to both to that address and to a vehicle consistent with the vehicle described by S.M. and registered to a resident of that address.

Ultimately, will it help police to know if a person who was said to be on his cell phone in a certain area at a certain time was in fact, based upon information from cell towers, actually in that area? Will it help in the investigation to know who the owner of that cell phone used just before the offence was committed, is? And will it help in the investigation to know who the person using that number called or called him during that time frame?

I am not persuaded that cross-examination in any of the proposed areas will likely elicit evidence that will impact a decision as to whether or not the justice who granted the authorizations had the requisite grounds to answer those questions in the affirmative. [ 55 ] Further, I am not satisfied on the evidence before me that there is any evidentiary basis provided or relied on by the Applicant to establish that Detective Meronyk has included any information in her ITOs that she knew to be untrue, or from which I can draw an inference that she knew to be untrue.

Decision as to the production orders [ 56 ] For the foregoing reasons, I am not satisfied that there is a reasonable likelihood that by allowing cross-examination of Detective Meronyk, evidence would be elicited that would impact the ultimate finding as to whether the issuing justice could have lawfully issued the production orders.

Decision as to the DNA warrant [ 57 ] The statutory preconditions for a DNA warrant to validly issue are set out in s. 487.05(1) of the Criminal Code . [ 58 ] If the production orders are ultimately found to have been validly issued (which is the subject of a separate application, still to be argued), and I consider the Applicant’s submissions relative to the ITO for the DNA warrant, I am, for the same reasons stated above, not persuaded that cross examination on that ITO would likely elicit evidence that would impact the ultimate finding as to whether the issuing judge could have lawfully issued the DNA warrant. [ 59 ] If the production orders are ultimately found not to have been validly issued, I anticipate other applications made by the Applicant will proceed which would not involve cross-examination on the ITO for the DNA warrant.

Conclusion [ 60 ] The application for leave to cross-examine Detective Meronyk on the ITOs is dismissed. “Original signed by” CARLSON, P.J.

Carlson, P.J. E R R A T U M There are corrections in the above judgement, as follows: 1) The accused’s telephone number and address have been redacted; 2) Victim’s name is referenced as S.M. throughout. Dated this 8 th day of November, 2023. “Original signed by Judge C. Carlson” Judge C. Carlson