R. v. Baird, 2013 MBPC 67

CITATION: R. v. Baird, 2013 MBPC 67 Date: 20131128 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) C. Sholdice and K. Sharma, ) for the Crown ) and ) ) ) Marcus Baird ) E. Roitenberg and L. Robinson, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) orally November 28, 2013 ) Heinrichs P.J. INTRODUCTION [1] Counsel for Marcus Baird seeks leave of the Court to cross-examine the affiant of an Information To Obtain A Search Warrant(or “ITO”, as it will be referred to later on), which resulted in a search warrant being granted on July 15, 2011. The Supreme Court ofCanada, in R. v.

Garofoli, (SCC), [1990] 2 S.C.R. 1421, stated that there is no automatic right to cross-examine theaffiant of a search warrant. However, if the Court is satisfied “that the cross-examination will elicit testimony tending to discredit theexistence of one of the preconditions for the issuance of the search warrant”, then leave is to be granted. In Garofoli, the Supreme Courtof Canada specifically referred to “the existence of reasonable and probable grounds” as an example of a precondition that might becalled into question.

That is precisely what counsel for Marcus Baird has argued and is what he is wanting leave to cross-examine withrespect to. Without being able to do this, counsel argues that Marcus Baird’s right to give full answer and defence will be blunted. [2] If leave is granted, counsel asks, as well, that this Court make a ruling preventing or restricting Crown counsel from speakingto or preparing Detective Arndt, the affiant of the ITO, prior to his testifying in court.

As the court proceedings will be at the stage of theproceedings where defence counsel will be cross-examining this witness, counsel argues that the law precludes counsel from speakingfurther to their witness. THE LAW ON OBTAINING LEAVE TO CROSS-EXAMINE [3] The Garofoli test, just summarized, was explained in more detail by the Supreme Court of Canada, 15 years later, in R. v.Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343. In different places in that decision, they stated the following: There is no question the right to cross-examine is of 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 and defence depends on thecontext. The Garofoli threshold test requires that the defence show a reasonable likelihood that cross-examination of the affiant will

elicit testimony of probative value to the issue for consideration by the reviewing judge. It is grounded in two basic 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 the admissibility of the evidence. The Garofoli threshold test is nothing more than a means of ensuring that, when a s. 8 challenge is initiated, the proceedings remain focussed and on track. (para. 31) . . . . . The Garofoli threshold test is all about relevancy.

If the proposed cross-examination is not relevant to a material issue, within the narrow scope of the review on admissibility, there is 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 that they are unlikely to assist in the determination of the relevant issues. The reason that the test will generally leave just a narrow window for cross- examination is not because the test is onerous - it is because there is just a narrow basis upon which an authorization can be set aside.

Hence, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focussed on the question to be determined on a Garofoli review - whether there is a basis upon which the authorizing judge could grant the order. If the proposed cross-examination is not likely to assist in the determination 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 go further 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) [ 4 ] It is important to bear in mind that prior to the Supreme Court of Canada giving its decision in Garofoli in 1990, two concerns had arisen in the lower courts; these concerns were a factor in the Court of Appeal decision which had restricted the right to cross– examine. Those two concerns were: ensuring the protection of the identity of informers, and the prolongation of court proceedings. In Marcus Baird’s case, they are not relevant factors.

This is an ITO which did not rely on any informants, and counsel has already arranged for two days, December 5 and 6, 2013, which should be sufficient to call the evidence and give submissions on this search warrant, on whether or not there was a Charter breach with respect to it. There should be no delay in proceeding to trial in February, 2014, as scheduled. THE BASIS FOR THE DEFENCE REQUEST TO CROSS-EXAMINE [ 5 ] Exhibit “A” of Detective Richard Arndt’s Information to Obtain a Search Warrant contains 30 paragraphs. Defence seeks leave to cross-examine the following paragraphs, or parts thereof: 1, 2, 3(d), 4(

g) and (h), 6(

g) and (h), 10(

c) and (d), 11(

b) and (d), 12(

a) and (b), 14, 15, 16, 18, 19, 20, 21, 24 – 30. The Introduction and Overview Paragraphs: [ 6 ] Paragraph 1 is an introduction in which Detective Arndt summarizes his background and experience as an officer. Defence counsel will want to question him with respect to his experience in preparing Informations and affidavits for warrants, both generally and specifically with respect to this ITO. [ 7 ] Paragraph 2 is Detective Arndt’s overview of the allegations against Marcus Baird. These are broad statements which come from his grounds for belief which follow.

Defence counsel would like to ask questions with respect to his grounds for belief that the assailant was Marcus Baird. The Paragraphs That Provide a Description of the Assailant: [ 8 ] This includes paragraph 3(

d) and 6(

g) and (h). Paragraph 3(

d) is part of Detective Arndt’s

summary of what he learned from reading the report of Constable David MacLean. This sub-paragraph contains a detailed description of how the complainant in the April 5, 2011 allegations described her attacker. The constable’s notes reportedly state that the complainant described the male as “Caucasian”. Counsel’s concern is that Detective Arndt’s

summary does not include this part of the description. Furthermore, paragraph 6(

g) and (

h) is the portion of Detective Arndt’s

summary of the video statement of the complainant, which he had viewed, where he summarizes the description the complainant gave of her assailant. Details as to height, weight, clothing and facial features are summarized, but there is no mention of the fact that the complainant reportedly described the attacker as being “white” in her video statement. [ 9 ] It is not disputed that the photographs that the police have on file for Marcus Baird characterize him as being Aboriginal and/or show him as being darker skinned than a Caucasian male. The Paragraph that summarizes the DNA Evidence: [ 10 ] This includes paragraph 4(

g) and (

h) and paragraph 21(j). Counsel notes that these references to the DNA found on the hoody seized on February 26, 2011 leave the impression that there is no doubt it was Marcus Baird’s DNA, without clarifying how good a sample or match it actually is. Counsel suggested that there are significant questions about how good a match it actually is. The Paragraphs That Deal with Police Observations of the Vehicle on April 5, 2011: [ 11 ] Paragraph 10(

c) and (d); paragraph 14 and paragraph 15(

e) and (

d) are where Detective Arndt summarizes Detective Bevan’s attendance at Marcus Baird’s residence the morning of April 5, 2011 and the police evidence concerning the tire treads observed that

morning at the rear of the complainant’s residence. Counsel has two concerns. Detective Arndt, in summarizing Detective Bevan’s report from April 5, 2011 has stated that Detective Bevan attended to Marcus Baird’s residence that morning and felt the hood of the vehicle he believed belonged to Marcus Baird. While his report states that the hood was “warm”, Detective Arndt summarizes that the hood felt “hot”.

This may only be a slight distinction, but counsel notes that this exaggeration may have significant implications to the person who reads this paragraph. [ 12 ] Additionally, counsel takes issue with the impression left by Detective Arndt about how good a match the photographs taken by Detective Lisi are with the tread pattern of Marcus Baird’s vehicle tires. Again, as the affiant did not attach a copy of these photographs to the ITO, the reader is left to assume that Detective Arndt is correct in his assessment. The Paragraphs That Deal with the Alleged Sexual Assaults on April 15, 2011: [ 13 ] Paragraph 11(

b) and (d) – also noted in paragraph 12(

b) and 23(d). Counsel points to the inaccurate

summary of the facts, as only one of the two females stated that the attacker had a knife while she was being attacked, not both of them. While counsel conceded that this may only be a minor point, and it is only the

summary of another matter not related directly to this search warrant, it is another place where counsel says that Detective Arndt has the facts wrong. [ 14 ] Additionally, the

summary reads as if Marcus Baird committed these sexual assaults, and paragraph 23 can be read to imply that he is now serving time in Headingly Correctional Centre as a result of the charges. Counsel points out that in fact he was found not guilty of both sexual assaults. The Paragraphs That Deal With the April 16, 2011 Search of the Vehicle: [ 15 ] This includes paragraphs 12(

a) and (b), 15, 18, 19 and 20. In paragraph 12(a), counsel notes that this Court has already heard evidence in this case that Detective Sergeant Janine Keen was in fact involved in the “Marcus Baird project” prior to April 16, and not just on April 16, as stated by Detective Arndt. Again, counsel says that Detective Arndt had the facts wrong. [ 16 ] Defence counsel points out that paragraph 12(

b) reads as if Marcus Baird was guilty of two sexual assaults from April 15, 2011, not that he was the suspect in these sexual assault allegations. As well, reference is made to Detective Sergeant Ed Chalmers obtaining the search warrant. Counsel believes that Detective Arndt would have had access to his notes, even though this is not mentioned, and would like to ask Detective Arndt about this. [ 17 ] In paragraphs 15(c), (

e) and (f), 18, 19 and 20, reference is made to photographs of the vehicle which were taken by Constable Danielle Aessie and what Detective Arndt was able to observe in the vehicle himself and in her photographs. After reviewing Detective Sergeant Keen’s notes and speaking to Detective Greg Keith, another member that had assisted in the search of the vehicle, Detective Arndt draws some conclusions on what had occurred during the search and what could now be seen in the photographs. Copies of these photographs were not attached to his ITO.

Counsel wishes to ask some questions with respect to the conclusions the Detective made on this evidence. The Paragraph that deals with the Vehicle Impoundment: [ 18 ] Paragraph 15(

b) describes the efforts of Dr. Hook to contact Marcus Baird in May, 2011, and their steps to now obtain and sell the vehicle. Counsel suggests that this paragraph leaves the impression that the vehicle has been abandoned, while failing to mention that Marcus Baird has been in custody since his arrest on April 15, 2011, and not likely aware of Dr. Hook attempting to contact him. To be fair, counsel did acknowledge that in other places in the ITO mention is made of Marcus Baird being incarcerated at Headingly Correctional Centre as of July 5 (in paragraph 16) and on July 11, 2011 (in paragraph 23(d)).

The paragraph that deals with Detective Bambrick’s investigation of a February 26, 2011 incident: [ 19 ] Paragraph 21 contains more information than Detective Bambrick’s notes have concerning the investigation and counsel would like to question Detective Arndt about this. In particular, there is reference to some NICHE records which were searched. Counsel believes that those records do not support the way in which Detective Arndt has summarized the information in this paragraph.

The Paragraphs that Deal with Detective Arndt’s Conclusions: [ 20 ] Paragraphs 24 – 30 are Detective Arndt’s conclusions and reasons for why he is requesting the search warrant. As a result of what counsel believes will have been shown to be errors, omissions or exaggerations in the earlier paragraphs, counsel will be challenging the assumptions that are the foundation for these conclusions.

HAS THE THRESHOLD OF BEING ALLOWED TO CROSS-EXAMINE BEEN SATISFIED? [ 21 ] Will defence counsel’s proposed areas of cross-examination assist the Court with the upcoming task of determining on a Garofoli review that the authorizing judge could have granted the order? Counsel for Marcus Baird has pointed to omissions, exaggerations and mischaracterizations that they believe exist in this ITO.

This, they argue, affects the strength of the affiant’s case in satisfying the authorizing judge of the fact that Marcus Baird is the correct suspect or that his vehicle was likely involved in the alleged sexual assault on April 5, 2011. This is not the time or place for this Court to determine, if some or all of counsel’s assessment of this is correct, whether the authorizing judge would have granted the order, as counsel does not have to satisfy this Court of that at this stage of the proceedings. It is a low threshold, but focussed specifically on whether it will help the reviewing judge determine this issue.

Based on what has been outlined with respect to this Information to Obtain a Search Warrant, the Court is satisfied that cross-examination on the following areas will be relevant and material: 1. The strength of the evidence concerning whether Marcus Baird is the correct suspect with respect to the April 5, 2011 allegation. This includes, as well, the suggestion, in paragraph 21, that Marcus Baird has been involved in other similar offences. This includes both the descriptions of the suspect or suspects and the DNA evidence referred to.

2. The strength of the evidence concerning whether Marcus Baird’s vehicle was at the rear of the complainant’s residence around the time of the alleged sexual assault. This includes both the evidence surrounding the tire tracks found and what Detective Bevan observed about Marcus Baird’s vehicle on the morning of April 5, 2011. 3. The basis of Detective Arndt’s introduction (paragraphs 1 and 2) and conclusions (paragraphs 24 to 30). A number of other inaccuracies, as noted in the comments on a number of the other paragraphs, may undermine the reliability of all that Detective Arndt has sworn to in this ITO.

As a result, this Court finds that questioning in these areas may be relevant and material; it may have changed how the authorizing judge viewed the application overall. [ 22 ] This Court, therefore, finds that counsel for Marcus Baird can cross-examine Detective Arndt on his Information to Obtain a Search Warrant, sworn on July 15, 2011. Counsel will be allowed to cross-examine on the three issues just noted; this will include questioning Detective Arndt on his information and sources of information in all of the paragraphs reviewed: namely 1, 2, 3(d), 4(

g) and (h), 6(

g) and (h), 10(

c) and (d), 11(

b) and (d), 12(

a) and (b), 14, 15, 16, 18 to 21 and 24 to 30. THE CROWN’S PREPARATION OF DETECTIVE ARNDT [ 23 ] Defence counsel has argued that if leave to cross-examine is granted, the Court is at the stage in the proceedings where the Crown would not be able to speak to this witness until the cross-examination is done. They argue that the sworn ITO is akin to his testimony in direct examination, and that the Court is now past that stage.

This is significant, in defence counsel’s view, as they were asked by this Court to disclose where they are going with respect to cross-examination and why; it was necessary to do this in order to satisfy the Court that they should be allowed to cross-examine the affiant at all. In a normal proceeding the Crown would not have this information; they would not have defence counsel’s “road map” of where counsel was going in cross-examination.

To now allow the Crown to discuss all of this with the detective, in preparation of his testimony, could be significantly detrimental to defence counsel’s ability to cross-examine effectively. The Crown had given their undertaking to not talk to Detective Arndt about the details of what defence counsel had argued in this motion, but in doing so, had pointed out that they had already noticed and discussed some of the discrepancies in the ITO with Detective Arndt.

What should they be allowed to say to Detective Arndt between now and when he takes the stand on December 5 or 6? [ 24 ] The current Code of Professional Conduct, last revised by the Law Society of Manitoba as of January 1, 2011, sets out the following in the

section called “ Communication with Witnesses Giving Evidence ”: 5.4-2 Subject to the direction of the tribunal, the lawyer must observe the following rules respecting communication with witnesses giving evidence: (

a) during examination-in-chief, the examining lawyer may discuss with the witness any matter; (

b) during cross-examination of the lawyer’s own witness, the lawyer must not discuss with the witness the evidence given in chief or relating to any matter introduced or touched on during the examination-in-chief; (

c) upon conclusion of cross-examination and during any re-examination the lawyer may discuss with the witness any matter. As well, the first part of Commentary [2] states: The term “cross-examination” means the examination of a witness or party adverse in interest to the client of the lawyer conducting the examination.

It therefore includes an examination on an affidavit. [ 25 ] The Rules of Professional Conduct vary from province to province; some have more detailed rules concerning what discussion is allowed prior to, during and after cross-examination, but Manitoba’s rules, briefer than some others, are in general accordance with what exists across Canada. [ 26 ] Of note is the reference to the examination on an affidavit in the Commentary.

The swearing of an Information to Obtain a Search Warrant is very similar to the swearing of an affidavit; this does support defence counsel’s argument that examination-in-chief, so to speak, has already taken place and we are now proceeding to cross-examination. While there seem to be no cases directly on point, this line of reasoning makes sense.

This Court can’t order the Crown to not speak to their witness, but the Court does ask that the Crown not speak to Detective Arndt about the specifics of what defence counsel’s questions will be during his testimony on cross-examination. [ 27 ] However, given that Detective Arndt prepared the ITO after reviewing notes and reports of other officers, after speaking to other officers and after reviewing the photographs of other officers, it is only fair that he be aware, generally, of what he might need to review in order to be able to answer questions during cross-examination.

Therefore, Crown counsel should be allowed to tell Detective Arndt that questions may be asked about paragraphs 1 – 4, 6, 10- 12, 14 – 16, 18 – 21 and 24 – 30. The particular subparagraphs that defence counsel has raised as concerns in his submission in this motion should not be mentioned. As well, Crown Counsel can advise Detective Arndt that the cross-examination will include details about the sources of his information as outlined in those paragraphs and he will need to be familiar with what was in those notes, reports, interviews and photographs.

If the Court finds that more than this is discussed with Detective Arndt between now and his testimony on cross-examination, the Court will take that into consideration in considering the credibility of his evidence and what weight should be attached to it. NOTE: After the decision was read, defence counsel pointed out that the complainant referred to the suspect as being “white” in her interview with the officer and not during the video statement she gave. Original signed by Judge R. Heinrichs

P.J.