Her Majesty the Queen ) V. Cornick, ) for the Crown - v. –, 2019 MBPC 17

Cite: 2019 MBPC 17 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) V. Cornick, ) for the Crown - and – ) ) Leona Claeys, ) M. Schwartz Accused ) for the Accused (Claeys) and ) ) Jamie Melnyk, ) M. Gould and M. Wire, Accused ) for the Accused (Melnyk) ) ) ) ) ) Reasons for Decision delivered on the 13 th day of March 13, 2019 A.D. at the City of Winnipeg in the Province of Manitoba TRACEY M. LORD, P.J. Ruling on Application for Leave to Cross-Examine Constable D.

Flock [ 1 ] The applicants seek leave to cross-examine Constable Flock, the affiant of the information to obtain (ITO) the search warrant in this case. The ITO requested the granting of a warrant for 560 Cote Street as well as the garage. [ 2 ] The applicants wish to cross-examine on two specific areas: 1) In the ITO Constable Flock included the fact that Mr. Melnyk had been previously arrested for a drug related offence. He did not mention in the ITO that the charges were ultimately stayed.

The Crown has conceded that this reference should be excised from the ITO; therefore there is no longer a basis for cross-examination on this point. 2) The remaining area on which the applicants seek to cross-examine is with respect to the address targeted in the ITO. Constable Flock requested the search warrant issue for 560 Cote Street rather than specifically with respect to the upper suite where the applicants reside. [ 3 ] The applicants argue that Constable Flock’s failure to appropriately specify the residence of Mr. Melnyk and Ms.

Claeys should be viewed as a material nondisclosure impacting on the statutory prerequisites for the warrant to have issued. [ 4 ] The applicants contend that Constable Flock either knew or ought to have known the applicants’ residence had a legal address different than simply 560 Cote Street and that it is the affiant’s responsibility to provide perfect information in the ITO. They rely on three facts to support their argument: 1) In the ITO Constable Flock references a prior call for service to 560 Cote Street.

The dispatch information provided in disclosure indicates that the officer who responded to the call on July 12, 2015 spoke to Ms. Claeys in what is referred to as the “ suite upstairs”. (emphasis added) 2) The front of 560 Cote Street displays two mailboxes. This is evident in the Google photo of the residence, Exhibit 2.

3) In January 2019, a search of the Assessment and Taxation page of the City of Winnipeg website and a call to 311 by Mr. Yarish ofMr.

Gould’s office revealed that the residence is zoned R2, having two residence units. [5] In support of the motion the applicants filed google photos of the front of 560 Cote Street as of August 2016, and a documentconfirming the zoning information. [6] The Crown is opposed to leave being granted to cross-examine Constable Flock and argues that the Applicants have notestablished that cross-examination of the affiant would elicit any information that could be of probative value regarding thepreconditions required for the search warrant to have issued. [7] In support, the Crown argues that Constable Flock included all the information known to him about the residence and theoccupants’ living space.

With the exception of there being two mailboxes on the front of the residence, there was nothing in theinvestigation he conducted that would have alerted him to the necessity of making further inquiries about the nature of address. [8] Flock included in the ITO information from the confidential informant that: • Jamie lives at the red house second from the intersection of Evans Street. • Jamie lives upstairs with his girlfriend Leona Claeys. • Jamie’s parents live on the main floor. • Jamie keeps some of the cocaine in a safe in the upstairs spare bedroom and the rest of the cocaine along with cash in the garage. [9] The Crown argues that from the description given by Constable Flock it is clear that he understood the applicants live on thesecond level while Mr.

Melnyk’s parents live on the main level. [10] Further, Constable Flock did checks of the Winnipeg Police Service (“WPS”) Records Management System as well as a searchof Mr. Melnyk’s and Ms. Claeys’ driver licence information. [11] The WPS records search indicated an address for Mr. Melnyk of 560 Cote Street and although his licence was not valid, theaddress associated with Mr. Melnyk’s driver’s licence was also 560 Cote Street. [12] Similar checks for Ms.

Claeys yielded the same results. [13] The driver licencing information is significant because the information associated to the licence holders does not indicate a unitdesignation for either of the applicants in their address information. [14] This is a subfacial challenge to the search warrant in this case. The right to cross-examine is not absolute. Cross-examination ofan affiant is unusual. [15] The applicant must establish that cross-examination of the affiant will elicit evidence probative of one of the preconditions forthe warrant to issue. (R. v.

Garofoli, (SCC), [1990] 2 S.C.R. 1421) [16] There is no information before the Court as to the physical lay out of 560 Cote Street, but it is apparent from the photos filedthat there is only one entry door at the front of the residence. [17] The checks that Constable Flock conducted in preparation for requesting the warrant did not yield any information thatcontradicted the informant’s information. He is not required to conduct every possible check available to him. [18] While it is clear from the ITO that the targets of this investigation, Mr. Melnyk and Ms.

Claeys, lived on the second level of560 Cote Street, the warrant requested by Constable Flock and granted by the issuing judge was for the entirety of 560 Cote Street. [19] Given the contradictory evidence regarding the nature of the living space at 560 Cote Street, I will allow cross-examination ofConstable Flock on this point. “Original signed by” JUDGE TRACEY M. LORD, P.J.