R. v. Green (M.), (2015) 337 O.A.C. 72 (CA)

• Judge: Hoy, A.C.J.O., Doherty and Benotto, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 19, 2015
• Jurisdiction: Ontario
• Citations: (2015), 337 O.A.C. 72 (CA);2015 ONCA 579

R. v. Green (M.) (2015), 337 O.A.C. 72 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AU.020

Her Majesty the Queen (respondent) v. Michael Green (appellant)

(C54449; 2015 ONCA 579)

Indexed As: R. v. Green (M.)

Ontario Court of Appeal

Hoy, A.C.J.O., Doherty and Benotto, JJ.A.

August 24, 2015.

Summary:

The accused appealed from his convictions of firearms offences and possession of marijuana. The charges arose out of the execution of a search warrant at the accused's residence. The warrant was granted largely on the basis of information provided to the police by a confidential informant. The accused claimed that the search was unconstitutional (Charter, s. 8) and unsuccessfully moved to exclude the gun and the marijuana from evidence (Charter, s. 24(2)). The grounds of appeal were: (1) the redacted version of the information to obtain the search warrant (ITO) did not provide a basis upon the warrant could issue; and (2) the trial judge erred in refusing cross-examination of the ITO affiant.

The Ontario Court of Appeal dismissed the appeal on both grounds.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - [See Criminal Law - Topic 3183 ].

Criminal Law - Topic 3117

Special powers - Setting aside search warrants - General - Cross-examination of affiant - The trial judge refused leave to cross-examine the affiant of the information to obtain the search warrant - On appeal, the accused sought to expand the grounds upon which cross-examination could be allowed - He argued that when the attack on the warrant was premised on an alleged breach of s. 8 of the Charter and the motion to exclude the evidence was brought under s. 24(2), factors relevant to the s. 24(2) analysis could justify cross-examination of the affiant even though the accused could not justify cross-examination on any issues relevant to the validity of the warrant - The Ontario Court of Appeal rejected the argument - "Cross-examination on issues relevant to s. 24(2) goes well beyond considerations relevant to the validity of the warrant. ... An expansion of the grounds upon which an affiant may be cross-examined to include issues relevant to s. 24(2) when those issues are entirely irrelevant to the proceedings, absent a finding that the warrant should not have been granted, is not an effective and efficient use of judicial resources. Expanding the ambit of cross-examination of the affiant to encompass issues relevant to s. 24(2) when there is no basis to permit cross-examination on the validity of the warrant itself, is in reality an attempt to justify cross-examination for one purpose - to establish grounds to exclude under s. 24(2) - in the hope that the cross-examination will uncover a basis upon which to attack the validity of the warrant, demonstrate a breach of s. 8, and thereby make s. 24(2) relevant. This approach seems to put the proverbial cart before the horse." - See paragraphs 37 to 41.

Criminal Law - Topic 3117

Special powers - Setting aside search warrants - General - Cross-examination of affiant - The trial judge refused leave to cross-examine the affiant of the information to obtain the search warrant - On appeal, the accused sought to expand the grounds upon which cross-examination of the affiant could be allowed - He argued that when the attack on the warrant was premised on an alleged breach of s. 8 of the Charter and the motion to exclude the evidence was brought under s. 24(2), factors relevant to the s. 24(2) analysis could justify cross-examination of the affiant even though the accused could not justify cross-examination on any issues relevant to the validity of the warrant - The Ontario Court of Appeal stated that "While I do not accept that the potential relevance of cross-examination to s. 24(2) is a stand-alone ground for permitting cross-examination of the affiant, I would not foreclose a trial judge from exercising her discretion to allow cross-examination on matters relevant to s. 24(2) if the trial judge was satisfied that there was a basis to cross-examine the affiant on matters relevant to the validity of the warrant. ... [I]t may be an effective use of judicial resources to allow cross-examination on issues relevant to s. 24(2) at the same time as the affiant is cross-examined on matters relevant to the validity of the warrant." - See paragraph 42.

Criminal Law - Topic 3117

Special powers - Setting aside search warrants - General - Cross-examination of affiant - The search warrant was granted largely on the basis of information provided to the police by a confidential informant - The trial judge refused leave to cross-examine the affiant of the information to obtain the warrant - On appeal, the accused argued that when the attack on the warrant was premised on an alleged breach of s. 8 of the Charter and the motion to exclude the evidence was brought under s. 24(2), factors relevant to the s. 24(2) analysis could justify cross-examination of the affiant even though the accused could not justify cross-examination on any issues relevant to the validity of the warrant - The Ontario Court of Appeal held that "s. 24(2) issues do not provide a gateway to cross-examination of the affiant", and addressed only those areas of potential cross-examination that could go to the validity of the warrant - In the end result, the Court deferred to the trial judge's ruling - "The three areas of potential cross-examination ... would not have affected either the cogency of the information provided by the confidential informant or the presence of independent confirmatory evidence. The trial judge was also entitled, as he did, to give weight to the need to protect the identity of the confidential informant in determining whether to permit cross-examination. ... Some judges may, in the exercise of their discretion, have permitted limited cross-examination of the affiant on the three areas. ... I count myself in that group. I cannot, however, say that the trial judge failed to exercise his discretion judicially in choosing the more cautious course and refusing cross-examination." - See paragraphs 43 to 54.

Criminal Law - Topic 3183

Special powers - Setting aside search warrants - Grounds - Information - Sufficiency of form and content - The accused appealed from his convictions of various firearms offences and possession of marijuana - The charges arose out of the execution of a search warrant at the accused's residence - The warrant was granted largely on the basis of information provided to the police by a confidential informant - The trial judge concluded that the redacted version of the information to obtain the search warrant (ITO) contained sufficiently credible and reliable evidence to justify a finding that there were reasonable and probable grounds to believe that there was a handgun in the accused's residence - The Ontario Court of Appeal upheld the ruling - The trial judge applied the governing principles - "He concluded that while the ITO provided little information that could enhance the credibility of the confidential informant, the confidential informant's information was compelling principally because it was based on firsthand observations. Finally, the trial judge held that the confidential informant's information was confirmed in significant ways by information provided from independent sources." - See paragraphs 14 to 18.

Cases Noticed:

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 15].

R. v. Chan (K.L.), [1998] O.A.C. Uned. 455 (C.A.), refd to. [para. 18].

R. v. Sadikov (S.) et al. (2014), 314 O.A.C. 357; 305 C.C.C.(3d) 421; 2014 ONCA 72, refd to. [para. 25].

R. v. Caissey (L.M.), [2008] 3 S.C.R. 451; 382 N.R. 198; 446 A.R. 397; 442 W.A.C. 397; 2008 SCC 65, affing. (2007), 422 A.R. 208; 415 W.A.C. 208; 227 C.C.C.(3d) 322; 2007 ABCA 380, refd to. [para. 29].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1, refd to. [para. 31].

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 32].

R. v. Greaves-Bissesarsingh (2014), 314 C.C.C. (3d) 493; 2014 ONSC 4900, refd to. [para. 33].

R. v. Daniels, 2014 ONSC 6542, refd to. [para. 33].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 38].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 8]; sect. 24(2) [para. 2].

Counsel:

Jonathan Dawe and Michael Dineen, for the appellant;

Susan Magotiaux, for the respondent.

This appeal from convictions was heard on May 19, 2015, before Hoy, A.C.J.O., Doherty and Benotto, JJ.A., of the Ontario Court of Appeal. In reasons written by Doherty, J.A., the Court delivered the following judgment, released on August 24, 2015.