R. v. Duarte, 2019 ONCJ 441

CITATION: R. v. Duarte , 2019 ONCJ 441 DATE: June 12, 2019 COURT FILE No.: Toronto Region, Old City Hall Court ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Mr. Tom Goddard ) for the Crown ) — AND — ) ) Silverio Renato Carneiro Duarte ) ) Mr. Harval Bassi ) for the Defendant ) ) Heard: May 16, 2019 ) ) K.J. caldwell J.: [ 1 ] Mr. Duarte has applied for leave to cross-examine Detective Constable Mike Taylor, the affiant of the search warrant that led to the search of Mr.

Duarte’s home and car and the discovery of two firearms, a 9mm Ruger handgun and an SKS rifle. [ 2 ] The subject areas of cross-examination are quite narrow and I am granting the application. Overview [ 3 ] Three warrants were granted in this case though the first warrant was not acted upon. All warrants were based in part upon confidential information received from two informants. The original June 2018 warrant was for Mr. Duarte’s home address, 65 Bremner Blvd. That warrant was not executed due to “operational needs”. The police then applied for two further warrants in October, 2018. Those warrants were for Mr.

Duarte’s new address, 36 Howard Park Avenue, Unit 421, and for his car. [ 4 ] Mr. Duarte argues that the warrants should be quashed given alleged

section 8 Charter violations. [ 5 ] Mr. Bassi, counsel for Mr. Duarte, wishes to question the officer about the following areas: • Month or months the confidential sources provided their information to the police; • Meaning of “operational needs” that resulted in the failure to execute the first warrant. The Law [ 6 ] The Supreme Court of Canada outlined the test for granting leave in R. v.

Garofoli . [1] The onus is on the applicant to demonstrate that cross-examination is necessary to obtain testimony that will tend to call into question the existence of one of the authorization pre-conditions, most commonly the existence of reasonable and probable grounds. [ 7 ] The test does not go so far as to require that a prima facie case must be made for fraud, misleading disclosure, or material non-disclosure. Justice Rosenberg has noted that the test is not a stringent one, and that the applicant simply must establish relevancy.

On the other hand, it must not be merely a speculative “fishing expedition”. [2] [ 8 ] In assessing whether cross-examination should be permitted, the Court must remain focussed on the central issue to be determined on review – namely, whether there is a basis upon which the authorizing judge could have granted the order. [3] [ 9 ] Finally, Justice Dambrot in R. v. Riley [4] cautioned against confusing apparent weaknesses in the affidavit with a valid basis to cross-examine in order to undermine the warrant.

He noted that affidavit weaknesses already provide a potential basis to undermine the warrant and that further cross-examination is not necessary in order to achieve that end. Such weaknesses should be the subject of argument, not further examination. Application of the Law [ 10 ] I find that both areas proposed by the applicant are relevant to the issue before me. Neither are mere fishing expeditions as

both areas are raised by specific statements in the warrant. [ 11 ] Stale dated informant information can undermine the grounds for issuing the warrant. [5] At my request, the Crown already has contacted the affiant and learned that revealing the month or months when the information was received will not compromise the informants. [ 12 ] The basis for asking about the meaning of “operational needs” is less clear-cut. It is a vague term and led to the non- execution of the first warrant which is unusual.

The most likely meaning of the term is simply staffing issues which would be innocuous and not undermine the basis for the warrants. That is a speculative conclusion, however. [ 13 ] I grant leave to ask about the meaning given that those needs, whatever they are, appear to have caused both the non- execution of the first warrant and a delay in obtaining the second set of warrants.

Whether the reasons for the delay and non-execution actually undermine the grounds for any of the warrants remains to be seen but the applicant does not need to demonstrate that the answers will undermine the warrants but only that they could undermine the warrants. [ 14 ] The application to cross-examination as outlined above is granted. ADDENDUM : After providing a written copy of the judgment above to counsel, I learned that I had misunderstood the Crown information from the affiant and the nature of proposed cross by counsel regarding the timing of CI information. Mr.

Bassi was only interested in whether further CI information was received between June, 2018 and October 2018. The affiant told the Crown that no further info was received. Further, revealing the months in which the previous information had been received might compromise the informant but Mr. Bassi was not interested in those dates. This line of questioning therefore was irrelevant. Released : June 12, 2019 Signed : K.J. Caldwell J.