R. v. DaSilva, 2014 ONCJ 556

Court File No.: at London, Ontario August 29, 2014 Citation: R. v. DaSilva , 2014 ONCJ 556 ONTARIO COURT OF JUSTICE BETWEEN HER MAJESTY THE QUEEN Respondent and STEVEN DASILVA Applicant REASONS FOR DECISION ON DAWSON APPLICATION M. Hourigan for Crown J. Zegers for the Applicant GEORGE J.: [ 1 ] The applicant is charged with marijuana possession, marijuana production, careless use of a firearm, and two counts of unauthorized possession of a weapon. The Crown has proceeded by indictment and the applicant has elected to have a trial in the Superior Court. He requests a preliminary hearing, which is scheduled to proceed on September 10, 2014.

[2] The charges arise from a search warrant executed at the applicant’s residence. At the preliminary hearing the applicant seeks tocross-examine the affiant of the Information to Obtain (ITO) the search warrant. [3] There is no right to cross-examine on an affidavit sworn in support of a search warrant application. Leave must be granted. At thepreliminary hearing stage the leave application is commonly referred to as a Dawson Application. This is a reference to the OntarioCourt of Appeal decision in R. v.

Dawson (1998), 123 C.C.C. (3d) where it was determined that a preliminary hearing justice hasjurisdiction to permit cross-examination of an ITO affiant. The leave test, as set out in the Supreme Court decision of R. v. Garofoli(1990), (SCC), 60 C.C.C. (3d) 161, applies at the preliminary hearing stage. [4] Only if leave is granted, and only upon completion of the permitted cross-examination, does the reviewing judge then considereither modifying the ITO (adding or excising information) and, if at a trial, determining the attendant issue of Charter compliance. [5] First, a review of the background.

The Strathroy-Caradoc Police Service (SCPS) began an investigation into the applicant and hisproperty at 23153 Christina Road in Mt. Brydges. This was prompted by information received from a confidential human source whoalleged marijuana possession and its production.

Police follow up, according to the affidavit of Detective Gilles Philion, confirmed theapplicant owned and occupied the premises at 23153 Christina Road and that the applicant had before been charged with marijuanapossession. [6] Further police action led to, according to Detective Philion, confirmation of much what was imparted by the informant, includingdetails about the residence such as its colour and size, the presence of a dog on the property, the phone number associated with thatparticular address, the presence of outbuildings, and the fact the applicant drives a work truck and blue Toyota. [7] Hydro consumption records were obtained which showed what police believed to be unusually high energy readings.

According tothe ITO, this was determined after a comparison with the consumption records of adjacent homes. [8] The applicant is concerned with, and highlights the following within the ITO: -the lack of information respecting the confidential source's motivation; -the fact this source had never before worked for the police; -the fact the affiant doesn't consider alternative explanations for the high energy readings; -that no people were observed at the residence during police surveillance; and -the precise number of times the police drove by the residence is absent from the ITO. [9] The applicant contends the information received is only minimally corroborated, and that the source is unproven.

His position isthis should lead me to grant permission to cross-examine. He argues that to deny this application would amount to an infringement of hisability to make full answer and defence. [10] The defence must show a reasonable likelihood that cross-examination will elicit testimony of probative value to the issue forconsideration by the reviewing judge (R. v. Pires; R. v. Lising, 2005 SCC 66 at paras. 3, 35 and 40). Some take the view this stands forthe proposition that Dawson is no longer good law.

The argument being this - that the "issue for consideration" for a preliminary hearingjudge is whether or not there is sufficient evidence to warrant a committal to stand trial. This is a relatively low threshold and is onewhich requires the judge to take the Crown's case at its highest and to, in only certain circumstances, engage in a limited weighing of theevidence. The logical extension of this being, because a preliminary hearing judge cannot find Charter violations, this is not an “issue forconsideration”; at least not at this stage, and not for this particular court.

This starkly put position has not yet been adopted by an appealcourt, but it is not an unreasonable

interpretation. I don’t adopt this reasoning, but I understand it.

[ 11 ] The court in Pires & Lising defines the "issue for consideration" as whether, on the ITO as a whole, there is any basis on which the issuing Justice could have been satisfied there were reasonable grounds to issue the warrant (see para. 40). If the proposed questioning falls within the narrow confines of this review, the applicant doesn't need to demonstrate that the cross-examination will be successful in discerning at least one of the statutory preconditions for issuance.

What must be established is a 'reasonable likelihood' that the examination will assist the court. [ 12 ] As the reviewing judge, I must be mindful of two things. First, that this is not an onerous test. Second, that I shouldn't refuse leave simply because other portions of the ITO would support the warrant.

I must focus on the likely effect of the requested cross-examination and to specifically consider whether there is a reasonable likelihood it will undermine the basis of the order. [ 13 ] The application fails for the following reasons: -first, the applicant has not tendered extrinsic contradictory evidence (as was the case in Garofoli ). -second, he has not persuaded me that the ITO has facial validity issues. -third, he has not pointed to any part of the record which would tend to show the affiant has inaccurately or unfairly presented the information. [ 14 ] None of the proposed questions, as set out in

Part IV of the applicant's factum, fit within the scope elaborated upon by Justice Sopinka in Garofoli (paras 112-113 ): ….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 [ 15 ] What the applicant seeks to do is, in part, ask questions and learn more about the confidential human source. He otherwise seeks to establish dates of phone calls and emails; to seek clarification on the police surveillance; and to, I believe, uncover certain redacted portions of the ITO.

The position is basically to suggest possible inconsistencies and to highlight omissions. [ 16 ] I reject the applicant’s argument. I have heard nothing to suggest the proposed areas of cross-examination would tend to undermine the precondition for the issuance of the CDSA search warrants issued in this case. I agree with the Crown's assertion that there appears to be a certain level of confusion between the general notion of relevance and the purpose of examining the affiant of an ITO. [ 17 ] The application is dismissed. August 29, 2014 “Justice Jonathon C. George” Date Justice Jonathon C. George