R. v. Garofoli, 2017 MBPC 38

Cite: 2017 MBPC 38 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) C. Vanderhooft and ) M. Lavitt,- and – ) for the Crown ) Guido Paul Amsel, ) S. Zaman and Accused ) J. Kostiuk, ) ) ) ) for the Accused Judgment delivered: September 19, 2017 ) TRACEY LORD, P.J. Ruling on Application to Cross Examine the Affiant and Sub-Affiants re: Information to Obtain DNA Warrant Introduction [1] This is a sub facial challenge to the DNA warrant authorizing the taking of a blood sample from the accused. The applicantMr. Amsel seeks to challenge the sufficiency of the evidence before the issuing judge, alleging a breach of

section 8 of the CanadianCharter of Rights and Freedoms (the “Charter”) and the exclusion of the resulting evidence obtained pursuant to section 24(2). [2] The applicant alleges that the Information to Obtain the DNA warrant contained incorrect and or misleading information as aresult of material non disclosures by the affiant, and further raises the potential of fraud, bad faith, strategic non disclosure or willfulblindness on the part of the affiant and investigating officers or “sub affiants”.

Leave to Cross Examine the Affiant and Sub Affiants [3] The applicant is seeking leave of the court to cross examine the affiant who prepared the Information to Obtain for the DNAwarrant, as well as “sub affiants” who provided information to the affiant. [4] To satisfy the threshold test for granting leave to cross examine an affiant, the applicant is required to show a reasonablelikelihood that cross examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewingjudge. [5] In determining if the threshold test has been met, the focus must be on the likely effect of the proposed cross examination andon whether there is a reasonable likelihood that it would undermine the basis for the authorization. [6] The test to be followed in a sub facial challenge to a warrant is set out in the R. v.

Garofoli, (SCC), [1990] 2S.C.R. 1421. (page 24 of Tab 1 of the applicant’s casebook) The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before theauthorizing judge as amplified on review, the reviewing judge concludes that the authorizing judge could have granted the authorization,then he or she should not interfere.

In this process, the existence of fraud, non disclosure, misleading evidence and new evidence are allrelevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for thedecision of the authorizing judge.

[7] And further in the R. v. Araujo, 2000 SCC 65 , 2000 S.C.C. 65, at paragraph 51, the court also said: . . . the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which theauthorization could have issued. [8] The Garofoli review hearing is not intended to test the merits of the Crown’s case, or the truth of the allegations contained inthe affidavit; that remains for the trial proper.

The review is simply a hearing to determine the admissibility of relevant evidence aboutthe offences; in this case a DNA sample taken from the accused, obtained pursuant to a presumptively valid court order. [9] In the R. v. Pires; R.v.Lising, 2005 SCC 66 , [2005] 3 S.C.R., 343 at paragraph 41, the Court noted: Upon further investigation, the grounds relied upon in support of the authorization may prove to be false.

That does not retroactivelyinvalidate what was otherwise a valid authorization.” [10] As the reviewing judge I am inquiring only into whether there was any basis upon which the authorizing judge could besatisfied that the relevant statutory preconditions for issuing the warrant existed. [11] That is the very specific focus of a challenge to the validity of a warrant or authorization.

The principles noted above providethe overall context and framework that informs the decision as to whether to grant leave to cross examine. [12] When leave to cross examine is granted, the scope of the examination should be limited to questions that are directed toestablish that there was no basis upon which the authorization could have been granted. [13] In coming to my decision I have reviewed the materials filed and specifically considered the notes and letters of SergeantTakatch and the notes of Constable Neumann, as well as the two reports that are specifically at issue here: 1.

The RCMP forensic lab report prepared by Dr. Nigel Hearns dated August 25, 2015 referencing file number C150139825. This is thereport that relates to the analysis of swabs taken from the hands of the accused Mr. Amsel; 2. The FBI report prepared by Peter J. Belcastro Jr. on August 26th, 2015 which relates to handwriting analysis and comparison ofvarious samples.

Cross Examination of “Sub-affiants” [14] With respect to the cross examination of “sub affiants’, courts have permitted such examination in circumstances where the“sub affiants” were the operating mind behind the obtaining of the authorization, and the affiant themselves had little knowledge orinvolvement in the investigation, serving only as a conduit for the information in the affidavit. [15] In this case while it is clear that Detective Miser, the affiant was not directly involved in the investigation himself, he wasactively involved in the gathering of information for the purpose of applying for various warrants and authorizations. [16] It is also clear from the notes submitted, that Sergeant Takatch and Constable Neumann were dealing with identification andforensic evidence related duties, while others like Sergeant Patts were overseeing other aspects of this rather large investigation.

None ofthese officers or “sub affiants” in my view could be said to be the operating minds behind the investigation, such that their crossexamination is warranted. [17] I will deal specifically with Sergeant Takatch and Constable Neumann because these two officers were the focus of theapplicant’s submission. [18] While Sergeant Takatch’s notes indicate that he was responsible for the submission of handwriting samples for analysis to theFederal Bureau of Investigation (“FBI”), on July 23, 2015 and August 20, 2015, there are no further entries regarding this investigationby Sergeant Takatch after August 20, 2015 until June 30, 2017. [19] The handwriting report that is at issue here dated August 26th, 2015 was not specifically addressed to him; it is rather addressedin a very general way to “Winnipeg MB police service”.

There is nothing in the material provided to suggest that Sergeant Takatchreceived it or had anything to do with its dissemination upon receipt.

As a result, I am not satisfied that there is a reasonable likelihoodthat cross examination of Sergeant Takatch will elicit testimony of probative value on the issue of what the affiant knew or ought to haveknown at the time the Information to Obtain was submitted. [20] The notes of Constable Neumann in the applicant’s book of materials, volume 2, Tabs 1-3, show no entries by ConstableNeumann between the dates of August 20, 2015 and August 28, 2015. [21] The Royal Canadian Mounted Police (“RCMP”) report relating to the lab results of the swabs taken from the accused’s hands upon arrest is dated August 25th, 2015, and is addressed specifically to the attention of Constable Neumann. [22] The entry in Constable Neumann’s notes at Volume 2 Tab1 page 70 from August 28, 2015 at 0750 hours, says “obtain hard copies of RCMP Bio Reports from Sgt Office-all items opened - scanned into C150138922 on 2015-08-28”. [23] His notes then go on to specifically reference a report bearing the number C150139825 as one of the reports received and

scanned into the police computer system. While the report is referred to as a bio report rather than a trace report, based on the materials before me I am satisfied that this is the report at issue. [ 24 ] Based on the notes of Constable Neumann, his first contact with the report is on August 28, 2015, well after the submission of the Information to Obtain by Detective Misir.

There is nothing to suggest that Constable Neumann had knowledge of this report prior to that date and certainly not in advance of the submission of the information to obtain. [ 25 ] I am also not persuaded based on the notes submitted that there is anything to suggest that Constable Neumann ought to have passed on the content of his conversation of July 8, 2015 with Dr. Hearns to the affiant. According to his notes Volume 2, Tab 1, page 57, it is in this conversation that he was advised by Dr. Hearns that the testing in question is “only presumptive” and must be confirmed by the lab.

The applicant is asking the Court to infer from this entry that Constable Neumann must have concluded as a result of this conversation that the results of the presumptive testing were somehow deficient, and neglected to advise anyone, and specifically the affiant about this fact. [ 26 ] There is nothing in the notes to indicate he was told in that conversation that the tests were inconclusive, inaccurate or misleading.

After this conversation the swabs were submitted to the RCMP lab for further testing as directed. [ 27 ] As a result of Constable Neumann’s involvement with the analysis of these items and the timing of his receipt of the report, based on my conclusions from his notes, I am not satisfied that there is a reasonable likelihood that cross examination of him will elicit testimony of probative value to the issue of what the affiant knew or ought to have known when the Information to Obtain was submitted. [ 28 ] I am not granting leave to cross examine any of the sub affiants identified by the applicant. [ 29 ] The affiant is however, in a somewhat different position.

Detective Misir did not keep notes regarding his information gathering in preparation to submit the Information to Obtain for the DNA warrant, and likewise no supplementary report or timeline was prepared that would allow for conclusions to be drawn as to when and in what manner the information was gathered from the various officers involved.

All that is known is what is contained in the actual Information to Obtain itself, which chronicles many conversations with various officers to gather information that ends on August 24, 2015. [ 30 ] It is his knowledge that is at issue here, or alternatively his ability to be in possession of information in order to discharge his duty to make full fair and frank disclosure in the Information to Obtain. [ 31 ] As a result, I am prepared to allow cross examination of the affiant, Detective Misir, but only on the very limited basis relating to his knowledge of or his ability to have knowledge of the existence of the RCMP Forensic Services Report dated August 25 th , 2015. [ 32 ] I am not prepared to allow cross examination on his knowledge of the FBI handwriting report dated the same day as his Information to Obtain, as I am not persuaded that it is reasonable to expect that he would know of its existence or that he ought to have known of its existence as the report is issued on the same day as his submission was made. “Original signed by” TRACEY LORD, P.J.