R. v. BURZYNSKI, 2020 MBPC 20

CITATION: R. v. BURZYNSKI, 2020 MBPC 20 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Vanessa Gama and Georgia Couturier, ) ) for the Crown - and – ) TED JOHN BURZYNSKI, ) ) ) Barry Sinder, Keith Chadwick-Garrett and Chad Sutherland, Accused ) ) for the Accused ) ) ) Reasons for Decision ) Delivered: May 4, 2020 SHARMA, K., P.J. INTRODUCTION [ 1 ] Ted Burzynski is charged with a number of weapon offences related to discharging a firearm on April 6, 2019 at the Windsor Hotel located at 187 Garry Street in Winnipeg, Manitoba.

The trial is set to take place June 15-19, 2020. [ 2 ] The accused has brought a pre-trial motion challenging the sub-facial validity of the warrant authorizing the search of suite 210-187 Garry Street.

As part of the motion, the applicant seeks leave to cross-examine Constable Keith Pitura, the affiant of the Information to Obtain (ITO) the search warrant. [ 3 ] The applicant specifically wants to question Constable Pitura on why he failed to include certain portions of a witness statement in the ITO that suggested the applicant no longer resided at the address of interest and where a firearm was ultimately recovered.

He argues that this omission shows that the officer was not “full, frank and fair” in the information he gave to the issuing judge. [ 4 ] In support of his motion, the applicant filed a two-page excerpt from Detective Rahn’s police narrative that contains a

summary of witness Frank Bale’s statement. Although the affiant states in the ITO that he received information from a briefing with Detective Rahn, the applicant is relying on the underlined portions from the narrative that were not included in the ITO, as the evidentiary foundation to cross-examine the affiant.

The excerpt from Detective Rahn’s narrative reads: Frank advised the following: • In his room at approximately 14:30 hrs, he was dozing/sleeping • He heard yelling in the hallway at the far end of the hall • He recognized the voice as Ted in suite #210 • Ted used to live at suite 210 but believes he no longer does • Ted is white, in his 50s, salt and pepper hair, ponytail, and was wearing a baseball cap • He has knowns [sic] Ted for about 2 years from the building • He couldn’t make out what Ted was yelling about • Got up and looked out in the hallway and saw Ted • Saw Ted holding something, thought it was long and looked like a broom handle

• Went back into his room and heard a bang coming from the end of the hall where Ted had been • He heard Ted say “now everyone has to suffer without power • He then left his room via the fire escape and saw Ted at the far end of the hall • Left out the fire escape because he didn’t want to risk getting hurt if Ted had a gun • Walked around to Mitzis and saw police responding and told them to go to the second floor • Ted has friends in the Windsor hotel and is normally a nice guy • Ted hangs[1] out at his old suite with new tenants. [5] The applicant argues that by leaving out the underlined portions, the affiant was trying to suggest there was a strongerconnection between the accused and suite 210 than actually existed.

He argues that had the issuing Justice known this omittedinformation, she would not have granted the warrant. As such, this omission goes to the very heart of the existence of a pre-condition tothe authorization. As he states in his motion’s brief, “Specifically, in this case, whether there were reasonable grounds to believe andreasonable grounds to suspect that Suite 210 was the residence of Ted Burzynski.” [6] Crown counsel agree that this information was not contained in the ITO but point out that not only is it irrelevant but it isminor in nature.

More importantly, as it does not affect a precondition to the issuance of the search warrant, the omission does not merit anorder permitting cross-examination of the affiant. [7] Crown counsel argue that the information provided in the ITO establishes the affiant’s reasonable and probable grounds that afirearm used in the commission of an offence was located in suite 210. Adding in the underlined portions of Mr. Bale’s summarized statement would notundermine these grounds. In fact, the two pieces of information neutralize one another because although Mr.

Bale believes the applicantno longer lives in suite 210, he also believes the applicant still “hangs out” there with the new tenants. [8] They further argue that the totality of Frank Bale’s evidence links the applicant to suite 210 as he “recognized the male in thehallway as Ted from 210.” The firearm is linked to that suite because “the police observe a firearm in suite 210.” Crown counsel submitthese facts were sufficient for the police to obtain a search warrant independent of where the applicant resides. [9] Crown counsel maintain that the affiant was full, frank and fair as he included information in the ITO that pointed away fromthe applicant residing in suite 210.

For example, the ITO also contained information that based on police computer checks, the applicanthad a second address on Young Street listed since March, 2019, and that “another individual had been registered to suite 210.” [10] Lastly, they argue that the applicant is conflating the issue of reasonable and probable grounds for issuance of a search warrantwith the element of control on the charge of possession of a firearm. The former is relevant to this motion, while the latter is only neededfor trial.

THE LAW [11] Although this is an application for leave to cross-examine the affiant, it must be assessed in the context of the broader challengeto the search warrant. As stated in the seminal case of R. v. Garofoli (1990) (SCC), 2 S.C.R. 1421, and affirmed insubsequent cases, the common law does not give an applicant an automatic right to a voir dire to challenge a warrant. As the warrant is ajudicially authorized document, the Court must start the inquiry by assuming that it is valid in all respects, including the underlyinginformation used to obtain the warrant.

Where the challenge involves the sub-facial validity of a warrant, the Court must determine ifthe warrant meets the statutory and constitutional requirements for issuance making the contents of the ITO and cross-examination of theaffiant potential issues. [12] However, there is no automatic right to cross-examine a search warrant affiant. In R. v. Pires; R. v. Lising,

(2005) S.C.C. 66,the Supreme Court of Canada affirmed the Garofoli test for seeking leave to cross-examine. They stated at paragraph 40: As discussed earlier, the Garofoli leave requirement is simply a means of weeding out unnecessary proceedings on the basis that they areunlikely 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 onthe question to be determined on a Garofoli review — whether there is a basis upon which the authorizing judge could grant the order.

Ifthe proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted. [13] The onus is on the applicant to demonstrate an evidentiary basis for cross-examination of the affiant. This is not a fishingexpedition.

Cross-examination cannot be allowed without an evidentiary foundation establishing its relevance and connection to thechallenge of the search warrant. [14] Trial judges have a duty to ensure the administration of justice is orderly, and the hearing regarding the issuance of a warrantremains focussed, not becoming bogged down in irrelevant considerations, or straying too far afield from the issue at hand.

ANALYSIS [ 15 ] A warrant is used as an investigative tool to seize evidence of the commission of a crime, which the officers had reasonable grounds to believe had been committed. In this case, the evidence that establishes a connection between the firearm and suite 210 is a shotgun blast adjacent to the suite and observations of a firearm in that suite made by police officers.

These last two pieces of evidence are independent of where the applicant resides. [ 16 ] In the context of all the evidence that was provided in the ITO, and the circumstances of the alleged offence, where the applicant lives is not as important as the fact that he was seen by several witnesses in and around the relevant place at the relevant time. Even Mr.

Bale who told the police that the applicant “used to live at suite 210 but believes he no longer does” saw the applicant near that suite right before he heard “gunshots.” [ 17 ] The applicant’s residency is at the heart of defence counsel’s argument as to why cross-examination of the affiant is necessary but it is not relevant to a precondition for the authorization.

The purpose of the warrant is not to determine residency of suite 210, but rather to seize an item the police believe was in that location and used in the commission of an offence. [ 18 ] The applicant has not shown that there is a reasonable likelihood that cross-examining the affiant will impact the question of admissibility of the firearm by undermining the preconditions that allowed the issuance of the warrant. As such, leave to cross-examine the affiant is denied. K. Sharma, P.J.