R. v. On, 2015 ONCJ 668

CITATION: R. v. On , 2015 ONCJ 668 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- SIMON ON REASONS FOR RULING Duncan J. 1 . This is a Dawson application [1] . 2 . The defendant is charged with possession of marijuana for the purpose of trafficking, possession of a controlled substance and possession of proceeds of crime. He has elected trial by judge and jury. This application is being heard in advance of the preliminary hearing scheduled to be before me in February. Background: 3 .

A search warrant was issued on July 2 2014 authorizing a search for marijuana and other items commonly related to drug trafficking at two dwellings - one in Toronto, the other in North York - and a car. The warrant was issued on the strength of a single Information to Obtain (ITO) prepared and sworn on July 2 by Peel police officer Sarah Horton. 4 . PC Horton’s information and belief was based substantially on what she had learned from other officers. In particular,

a) Cst. Osborne had received information from a confidential informant with whom he had a relationship that the defendant was trafficking in large amounts of marijuana. Details and descriptions of the defendant, his vehicle and the premises involved were provided

and confirmed by checking various police data bases.

b) Acting on this information, police took up surveillance and saw the defendant arrive in his car at the North York address. He enteredthe underground parking garage with a pass key. There he was seen to unload a large box from his car and take it into the building, into the elevator and up to the 6th floor. They saw the defendant return to his car with a trolley and remove two more large boxes. He enteredthe building and the elevator. The police got into the elevator with him. They arrested him for possession of marijuana for the purpose oftrafficking.

The boxes were found to contain a large amount of marijuana in vacuum sealed packages. The defendant was in possession ofa key to apartment 609. Police attended that apartment to secure it pending a search warrant and found a further large quantity ofpackaged marijuana within. The defendant gave an inculpatory statement admitting that there was further marijuana, packing materialand proceeds of crime at the other address, in Toronto. Garofoli: 5.

A defendant has no right to cross-examine the affiant of an ITO used to obtain a search warrant that has resulted in evidence beingfound and seized for use against him in a criminal proceeding. However a trial Judge may grant leave to permit such cross examination ifit is necessary to enable the defendant to make full answer and defence. A basis must be shown by the defendant that the cross-examination will elicit testimony tending to discredit one of the preconditions to the authorization, usually, the existence of reasonableand probable grounds.

Relevance, materiality, the need to protect confidential informers and the need to avoid prolixity of proceedingsare relevant considerations on the application: R v Garofoli (SCC), [1990] 2 SCR 1421. Dawson: 6. The same rules apply at a preliminary inquiry: R v Dawson supra. However, as has been pointed out in R v McLean [2012] OJNo 5321, the Dawson case dealt only with the question of the jurisdiction of a preliminary inquiry justice to grant leave to cross examinean affiant. It did not deal with the question of how the Garofoli test should be applied in the context of a preliminary inquiry.

NakatsuruJ. in McLean went on to discuss a number of distinctions between the two proceedings, the sum of which tended to favour refusal ofleave at preliminary in circumstances where leave might be granted at trial. 7. I agree with the analysis in McLean and suggest that the following points are relevant to the distinction between the application ofthe test at preliminary (Dawson) as opposed to trial (Garofoli):

a) An accused at a preliminary does not make answer and defence. At most he prepares to do so for trial. The requested crossexamination is for discovery purposes only. The accused’s interests are less than where guilt or innocence is at stake.

b) The purpose of a preliminary inquiry is to determine whether sufficient evidence exists to put the accused on trial. The discoveryfunction is only ancillary to that purpose. The cross examination is not relevant or material to the central purpose of the preliminaryinquiry proceeding.

c) The preliminary inquiry justice has no Charter jurisdiction to make a relevant ruling on the sufficiency of the preconditions for thewarrant or the admissibility of the evidence obtained. There is no jurisdiction to review or engage in the editing or summarization of theITO as contemplated in Garofoli.

d) As for prolixity, every Dawson application must be repeated at trial as a Garofoli application. Whatever the anticipated length of theleave argument and, if granted, the cross examination, it is doubled by the redundant Dawson application.

e) The risk of identification of confidential informers is always present with cross-examination. Attempts to prevent such damage arenotoriously fallible. Assuming the risk on two separate occasions is generally unacceptable when the only interest being served is that ofdiscovery, particularly when the rewards are bound to be minimal if CI identity is properly shielded. In short, the proposed crossexamination in aid of discovery is likely to be either dangerous to the CI or almost useless to the accused. Application to this case:

8 . The above points are applicable to most if not all Dawson applications. In the present case there is a further important consideration. 9 . It is readily apparent from the

summary of the contents of the ITO, that the information provided by the CI (paragraph 4 (

a) above) was corroborated - in spades- by the evidence summarized in paragraph 4(b). Cross examination of the affiant of the ITO could not possibly discredit the reasonable grounds precondition to the granting of the search warrant. 10 . Defence counsel Mr. Cohn readily concedes this but argues that he also intends to show that the arrest was made without reasonable grounds and therefore the warrantless search incident thereto infringed

section 8 of the Charter. If successful, the evidence in paragraph (

b) would be excised from consideration of the sufficiency of the ITO: R v Wu [2015] OJ No 5106 (CA) [2] The balance would then be either facially insufficient or vulnerable to being discredited if leave were granted for cross examination of the affiant. 11 . It can be seen from this submission that the sufficiency of the ITO in this case will only become an issue if and when the defence secures a favourable ruling on an issue that only the judge at trial can address. This Dawson application is therefore even further removed than most from being relevant and material to the preliminary inquiry.

The defendant is seeking an order in aid of discovery on an issue that is only potentially relevant, contingent on a ruling to be made by another court in the future. 12 . For these reasons, the Dawson application for leave to cross examine the affiant and sub affiant of the ITO is dismissed. 13 . However, to be clear, there is nothing about this ruling that forbids or limits cross examination of any witness at the preliminary inquiry about the circumstances or grounds for arrest.

No leave is required for such cross-examination – it does not fall within the Garofoli/ Dawson rules, which are directed at searches authorized by warrant and involve questions of the permissible scope and procedure for collateral attack of a judicial order. The warrantless arrest and search in this case stands on no different legal footing than cross examination of an officer in a drink drive case as to his grounds for arrest.

Of course it goes without saying that such cross examination is subject to any other statutory or common law limitation such as the limit on prolix or inappropriate cross examination (s 537(1.1) or, importantly, the prohibition against questioning that encroaches on CI privilege. November 26, 2015 B Duncan J. David Cohn for the defendant Ostap Melnick for the Crown