



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Green, 2015 ONCA 579

DATE: 20150824

DOCKET:
C54449

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

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Green

Appellant

Jonathan Dawe and Michael Dineen, for the appellant

Susan Magotiaux, for the respondent

Heard:  May 19, 2015

On appeal from the convictions entered by Justice Thomas
    A. Bielby of the Superior Court of Justice, sitting without a jury, on
    September 20, 2010.

Doherty J.A.:


I



[1]

The appellant was convicted of various firearms offences and possession
    of marihuana.  The charges arose out of the execution of a search warrant at
    the appellants residence in Brampton, Ontario.  The police found and seized approximately
    200 grams of marihuana from a bureau in the dining room and a loaded
    semi-automatic pistol hidden in the fireplace in the living room.

[2]

On a pretrial motion, the appellant unsuccessfully moved to exclude the
    marihuana and gun from evidence pursuant to s. 24(2) of the
Charter
. 
    The trial proceeded on an Agreed Statement of Facts in which the appellant
    admitted possession of the guns and the drugs.  The trial judge convicted on
    all charges.  Some of the firearm-related convictions were stayed.

[3]

The appellant appeals from his convictions.  He renews his claim that
    the search of his residence was unconstitutional and that the evidence should
    have been excluded under s. 24(2).  He advances two grounds of appeal:

·

The information to obtain the search warrant (ITO) as redacted
    did not provide a basis upon which a justice could conclude that there were
    reasonable and probable grounds to believe there was a gun in the residence;
    and

·

The trial judge erred in refusing to permit cross-examination of
    the ITO affiant in support of the appellants contention that the warrant
    should not have been granted.

[4]

I would dismiss the appeal for the reasons that follow.


II



the challenge to the search warrant at trial

[5]

The search warrant was granted largely on the basis of information
    provided to the police by a confidential informant.  Without that information,
    a warrant could not have been granted.

[6]

Appendix B of the ITO made extensive reference to information provided
    by the confidential informant to Constable Sills, who had in turn passed that
    information on to Constable Adams, the affiant of the ITO.  The ITO also
    contained an Appendix C, setting out all information that may compromise the
    informants confidentiality.

[7]

At trial, the Crown relied on an edited version of the ITO.  Appendix
    B contained many redactions and Appendix C was entirely removed.  The
    redactions and the removal of Appendix C were justified as necessary to protect
    the identity of the confidential informant.

[8]

The appellant alleged at trial that the search warrant should not have
    been granted and that the subsequent search of his residence and seizure of the
    gun and drugs contravened his rights under s. 8 of the
Charter
.  The
    appellant claimed that the evidence should be excluded under s. 24(2).

[9]

Counsel for the appellant brought a motion seeking disclosure of the confidential
    informants police file in support of the s. 8 motion.  Counsel argued that
    given the centrality of the information provided by the confidential informant
    to the granting of the warrant, the right to full answer and defence required
    that the defence be given information about the confidential informants
    history with the police to the extent possible without disclosing the confidential
    informants identity. Counsel did not suggest that the appellant was entitled
    to any information that might identify the confidential informant.  Counsel
    invited the trial judge to examine and edit the police file to protect the confidential
    informants identity.  The Crown argued that disclosure of any of the contents
    of the file risked exposing the identity of the confidential informant.

[10]

The
    trial judge concluded that the innocence at stake exception to the informer privilege
    was not engaged and that it would be virtually impossible for him to edit the
    contents of the file in a way that would ensure the protection of the confidential
    informants identity.  The trial judge declined to examine the file or to order
    any part of the file produced to the defence: 2010 ONSC 2907, [2010] O.J. No.
    6237. This ruling is not appealed.

[11]

The
    appellant next sought to cross-examine the affiant of the ITO.  Counsel
    identified specific areas of the affidavit on which she sought to cross-examine
    the affiant.  The trial judge refused to allow cross-examination: [2010] O.J.
    No. 6238.  This ruling is challenged on appeal.

[12]

The
    appellant ultimately argued that the redacted version of the ITO could not, on
    its face, provide a basis upon which a justice could be satisfied that there
    were reasonable and probable grounds to issue the warrant.  Counsel advanced
    several specific arguments in support of this contention.  The trial judge
    rejected those arguments. This ruling is challenged on appeal.


III



the grounds of appeal

[13]

The
    ruling refusing cross-examination of the affiant came before the ruling that
    the redacted ITO provided a basis upon which the warrant could issue.  I will,
    however, address the two grounds of appeal in the order in which counsel
    advanced them.

A.

Did the redacted ITO provide a basis upon which a warrant could
    issue?

[14]

The
    trial judge concluded that the redacted 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 appellants residence.  He
    said, at para. 71:

While the ITO could have been better drafted and contained
    further or more precise information, I have concluded that even the redacted
    ITO provides sufficient information to justify the authorization of the
    warrant.

[15]

R.
    v. Debot
, [1989] 2 S.C.R. 1140, at p. 1168, instructs that when
    information relied on comes from a confidential informant, the court, in
    considering the adequacy of the information, must have regard to:

·

Information relevant to the credibility or reliability of the confidential
    informant;

·

The degree to which the information is compelling or cogent; and

·

The degree to which the confidential informants information is
    confirmed or supported in material matters by credible independent information.

These factors do not each form a separate test; rather,
    the reliability of the confidential informants information is assessed by
    looking at the totality of the circumstances.

[16]

The
    trial judge applied these principles.  He concluded that while the ITO provided
    little information that could enhance the credibility of the confidential
    informant, the confidential informants information was compelling principally
    because it was based on firsthand observations.  Finally, the trial judge held
    that the confidential informants information was confirmed in significant ways
    by information provided from independent sources.

[17]

The
    appellant contends that the trial judge erred in finding that the confidential
    informants information was compelling.  He submits that the trial judge went
    beyond the information provided in the redacted ITO by holding that the confidential
    informants assertion that the appellant had a semi-automatic handgun in his
    residence was based on firsthand observation and not merely rumour, hearsay or
    gossip.  He further argues that even if the trial judge could find that the
    information was based on the confidential informants observations, there was
    no evidence about the currency of those observations, and therefore no
    reasonable and probable grounds to believe that there was a handgun in the
    appellants residence at the time of the search warrant application.  Lastly,
    the appellant submits that the trial judge wrongly held that certain
    information was potentially confirmatory, and overstated the confirmatory value
    of other information.

[18]

In
    considering the appellants submissions, the ITO must be read as a whole in a
    common sense manner and having regard to its author.  Police officers are not
    wordsmiths and the ITO is not to be parsed as though produced by a meticulous
    solicitor: see e.g.
R. v. Chan
, [1998] O.J. No. 4536 (C.A.), at para.
    4.  No doubt, this ITO, like most, could have been more felicitously drawn and
    organized.  Those failings do not, however, mean that the ITO as redacted did
    not provide sufficient grounds for the issuance of the warrant.  I address each
    of the appellants three complaints bearing in mind the need to read the
    document as a whole in a common sense manner.

(i)

Did the trial judge err in reading the ITO as including the claim that
    the confidential informant had seen the appellant in possession of the handgun?

[19]

Paragraph 1 of Appendix B of the redacted ITO under the heading
    Investigation refers to a conversation between Constable Sills and the
    affiant of the ITO.  The affiant sets out several pieces of information which
    he says he learned as a result of that conversation.  The information includes
    the assertion that Marvin [i.e. the appellant] was in possession of a semi automatic
    pistol.  Viewed in isolation, para. 1 does not indicate the source of
    Constable Sillss information, and assuming that information came from the confidential
    informant, para. 1 does not indicate the source of the confidential informants
    information.  On its own, para. 1 could not justify the conclusion that the confidential
    informant had seen the appellant in possession of a handgun.

[20]

Paragraph
    1 does not, however, stand alone.  Under the heading Reasonable grounds to
    believe the offence has been committed, the affiant states:

On January 11
th
, 2008, I spoke to Constable SILLS #2830
    who received information from a confidential informant indicating that a male
    named Marvin, who was later identified as Michael GREEN  October 10
th
,
    1957, was in possession of a semi automatic handgun at his residence located at
    189 Queen Street East in the City of Brampton.  The C/I has knowledge that
    Michael GREEN hosts after hours parties on the weekend and the C/I has been in
    attendance [redacted] in the past.

The C.I. indicated that the after hours parties have attracted
    people who are sometimes armed with firearms.  As such, the suspect [the
    appellant] has acquired a gun [redacted].



Within the last [redacted] Michael GREEN was observed to be in
    possession of a semi-automatic handgun within the residence of 189 Queen Street
    East in the City of Brampton.

[21]

Later
    in the ITO under the heading Grounds to believe that the items to be seized
    are at the place to be searched, the affiant asserts:

The C/I has provided police with information about a male named
    Michael GREEN.

The C/I has [redacted] seen Michael GREEN in possession of a
    semi-automatic handgun.

Michael GREEN hosts after hours parties on the weekends, at
    his residence, which have attracted people armed with firearms, as well as
    street gang members from Brampton, Mississauga and Toronto.  Michael GREEN has
    acquired a gun according to the C/I. [redacted].

He stores the handgun within his residence [redacted].

[22]

Under
    the heading Conclusion, the affiant alleges:

The C/I provided Constable Jeromie SILLS #2830 information
    pertaining to a male party by the name of Michael GREEN.  GREEN organizes an
    after hours party at his residence and has [redacted] acquired a gun.

The C/I was able to identify [redacted] the firearm.  The C/I
    was able to refer to the firearm as a semi automatic pistol.



The C/I was able to identify the [redacted].  This information
    goes beyond mere suspicion that the suspect is in possession of a gun.



The C/I was able to state to Constable SILLS #2830 that
    [redacted] has seen the gun within the last [redacted] within the residence at
    189 Queen Street East, Brampton.  The information is believed to be both
    current and accurate.

[23]

Reading
    the ITO as a whole, it was reasonably open to the interpretation that Constable
    Sills told the affiant on January 11, 2008 that the confidential informant had
    told him that he had seen the person who resided at 189 Queen Street East in
    Brampton in possession of a semi-automatic handgun while both were in the
    residence.  It was equally open to the interpretation that Constable Sills told
    the affiant that the confidential informant had explained that the individual
    had the handgun for personal protection because some of the people who attended
    his after-hours parties carried and used firearms while in his home.  I do not
    think the trial judge speculated about material that had been redacted from the
    ITO.  He simply read the redacted ITO as a whole.

(ii)

Did the trial judge err in failing to hold that the information provided
    by the confidential informant did not provide reasonable grounds to believe
    that there was a handgun in the appellants residence when the police applied
    for a search warrant?

[24]

There
    is no direct evidence in the redacted ITO as to when the confidential informant
    saw the handgun in the appellants possession.  However, the information
    provided by the confidential informant indicated that the appellant had the gun
    for protection from those who brought guns to his parties.  This was accompanied
    by information in the ITO from the Peel Regional Police Service databank that revealed
    there had been several past incidents at parties at the appellants residence
    in which guns had been produced and used by attendees.  In at least one
    incident, attendees had threatened the appellant with guns.  One gun-related
    incident had occurred only a week before the application for the search
    warrant.

[25]

It
    was open to the trial judge to conclude that the issuing justice could
    reasonably infer from the information in the ITO that the appellant had a gun
    in his residence for protection against persons who attended his parties while
    armed.  The trial judge could further conclude that the issuing justice could
    reasonably find that as the appellant continued to host the same kinds of
    parties, his perceived need to keep a gun in his residence for protection
    continued as of the time of the search warrant application: see
R. v.
    Sadikov
, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 81-84.

(iii)

Did
    the trial judge err in concluding that the information provided by the confidential
    informant was confirmed by independent information?

[26]

The
    trial judge dealt with the extent to which the confidential informants
    information was confirmed or corroborated at some length.  The appellant is
    correct in his assertion that the trial judge erred in characterizing the
    information that the appellant did not have a licence for any handgun as
    confirmatory of the confidential informants information.  This error was,
    however, minor when placed beside the substantial body of information that was
    confirmatory of the confidential informants information.

[27]

The
    confidential informant described the person who was in possession of the
    handgun as residing at 189 Queen Street East, Brampton, with his girlfriend. 
    The appellant resided at that address with his girlfriend.  The appellant
    described the person as going by the names Marvin and Nervous.  Information
    in the ITO independent of the confidential informant confirmed that the
    appellant used the street name Nervous.

[28]

More
    importantly, evidence independent of the confidential informant confirmed the confidential
    informants information that the appellant operated after-hours parties at 189
    Queen Street East in Brampton, and that some attendees at those parties brought
    guns and used those guns to threaten others  including the appellant.  This
    independent information was capable of confirming the confidential informants
    information that he had attended those parties and seen the appellant with a
    gun he kept to protect himself against those who came to the parties armed.

[29]

There
    was no independent evidence directly putting a gun in the possession of the
    appellant.  However, confirmatory evidence need not go that far:
R. v.
    Caissey
, 2008 SCC 65, [2008] 3 S.C.R. 451, affg 2007 ABCA 380, 227 C.C.C.
    (3d) 322, at para. 25.  The entirety of the evidence referred to in the ITO
    independent of the confidential informant offered confirmation of the confidential
    informants information that the appellant had a gun to protect himself from
    armed and dangerous people who attended his after-hours parties.

[30]

I
    would not interfere with the trial judges holding that the redacted ITO
    provided a basis upon which the search warrant could issue.

B.

Did the trial judge err in refusing leave to cross-examine the
    ITO affiant?

[31]

An
    accused who seeks to cross-examine the affiant of an ITO in aid of a motion to
    exclude evidence obtained as a result of the execution of a search warrant must
    obtain leave from the trial judge.  In deciding whether to grant leave, the
    trial judge will have regard to various competing interests, including the
    accuseds right to make full answer and defence, the Crown and the courts obligation
    to protect the identity of confidential informants, and the courts obligation
    to make effective use of limited judicial resources by avoiding unnecessary and
    time-consuming proceedings.  In
R. v. Garofoli
, [1990] 2 S.C.R. 1421,
    at p. 1465, Sopinka J. articulated an approach which balanced those competing
    interests.  He held that cross-examination of the affiant should be allowed
    where:

[T]he trial judge is satisfied that the cross-examination is
    necessary to enable the accused to make full answer and defence.
A basis must be shown
    by the accused for the view that the cross-examination will elicit testimony
    tending to discredit the existence of one of the preconditions to the
    authorization, as for example the existence of reasonable and probable grounds.
[Emphasis added.]

[32]

In
R. v. Pires
;
R. v. Lising
, 2005 SCC 66, [2005] 3 S.C.R. 343,
    the Court confirmed the
Garofoli
approach in the context of a
Charter
challenge.  Charron J. emphasized the relatively narrow focus of the
Garofoli
inquiry, at para. 40:

[T]he
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 of 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 the
    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. [Emphasis
    added.]

[33]

Garofoli
and
Pires
were wiretap cases.  However, the same approach is apposite
    when search warrants are challenged:  see
Sadikov,
at paras. 39-41;
R.
    v. Greaves-Bissesarsingh
,
2014
    ONSC 4900, 314 C.C.C. (3d) 493;
R. v. Daniels
,
2014 ONSC 6542.

[34]

Cross-examination
    of the affiant will be allowed when the trial judge is satisfied that there is
    a reasonable likelihood that the proposed cross-examination will assist in
    determining whether the necessary grounds existed for the issuance of the
    search warrant.  The focus is on the reasonableness and honesty of the
    affiants belief as to the existence of the requisite grounds, and not on the
    ultimate accuracy of the information relied on by the affiant:
Pires
,
    at paras. 41-43;
Sadikov,
at para. 40.

[35]

Motions
    to cross-examine affiants most often target specific, factual allegations in
    the ITO that are central to the existence of the reasonable grounds necessary
    to justify the granting of the warrant.  The accused on the motion to
    cross-examine, either by reference to other parts of the ITO, or extraneous
    evidence (often material provided by Crown disclosure) attempts to demonstrate
    that there is a reasonable likelihood that cross-examination of the affiant on
    certain parts of the ITO will undermine the grounds upon which the warrant
    was granted: see
Pires
,
at paras. 68-69. Cross-examination may undermine the grounds set out in the
    ITO either by contradicting information in the ITO or by adding information
    that was not in the ITO.  In either case, the honesty and/or reasonableness of
    the affiants grounds for believing that the warrant should issue are the
    ultimate target of the cross-examination.

[36]

Sometimes
    the motion to cross-examine the affiant is made on a wider basis.  An accused
    may argue that the ITO contains statements that are deliberately misleading and
    sufficiently significant to place the credibility of the entire ITO in issue.
Pires
,
at para. 63, holds that if there is a
    reasonable basis to believe that an affiant has deliberately attempted to mislead
    the authorizing judge in some part of the ITO, cross-examination should
    generally be allowed.

[37]

Counsel
    for the appellant seek to expand the grounds upon which cross-examination of
    the affiant can be allowed.  They submit that when the attack on the warrant is
    premised on an alleged breach of s. 8 of the
Charter
and the motion to
    exclude the evidence is brought under s. 24(2), factors relevant to the s.
    24(2) analysis can justify cross-examination of the affiant even though the
    accused cannot justify cross-examination on any issues relevant to the validity
    of the warrant.

[38]

On
    this approach, cross-examination of the affiant would be allowed if there was a
    reasonable likelihood that the cross-examination would produce evidence that
    could assist the accused in the s. 24(2) analysis as to the admissibility of
    the evidence.  For example, evidence of a single misstatement in the ITO might
    provide a basis upon which an accused could successfully argue that there was a
    reasonable likelihood that further cross-examination would reveal other
    examples of carelessness in the affiants preparation of the ITO. In turn, this
    carelessness could figure in a trial judges assessment of the seriousness of
    the police misconduct under s. 24(2), the first of the three factors identified
    in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353.

[39]

This
    argument was not made before the trial judge and I would be inclined to reject
    it on that basis alone.  However, I would also reject the argument on its
    merits.
Garofoli
and
Pires
speak to the possibility of
    cross-examination going to the basis upon which the authorizing judge could
    grant the order.  Section 24(2) considerations have nothing to do with the
    basis upon which a justice could grant the warrant.

[40]

Counsel
    correctly point out that
Garofoli
and
Pires
were wiretap
    cases and the evidence was subject to its own set of statutory exclusionary
    rules.  Under those rules, non-compliance with the preconditions to the
    granting of the warrant required exclusion of the evidence obtained as a result
    of the warrant.  In that sense, the inquiries described in
Garofoli
and
Pires
addressed the ultimate admissibility of the evidence.

[41]

Cross-examination
    on issues relevant to s. 24(2) goes well beyond considerations relevant to the
    validity of the warrant.  Cross-examination on s. 24(2) issues at a point in
    time when the accused has not shown any basis upon which to challenge the
    validity of the warrant is at odds with the judicial economy rationale
    underlying
Garofoli
and
Pires
.  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.

[42]

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.  Trial judges must be given wide
    latitude in controlling the specifics of any cross-examination that may be
    allowed.  Depending on the issues raised and the nature of the
    cross-examination sought, it 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. 
    In other circumstances, a trial judge may deem it appropriate to address only
    the matters related to s. 8,  leaving potential cross-examination on s. 24(2)
    to be addressed when and if the trial judge finds a s. 8 breach.

[43]

Counsel
    for the appellant relied primarily on the relevance of the proposed
    cross-examination to s. 24(2) issues to support the claim that the trial judge
    should have allowed cross-examination of the affiant on the specific areas
    identified by trial counsel.  Counsel candidly acknowledged that cross-examination
    in respect of some of those matters had little or no relevance to the validity
    of the warrant.  I agree with that concession.  As I would hold that s. 24(2)
    issues do not provide a gateway to cross-examination of the affiant, I will
    address only those areas of potential cross-examination that could go to the
    validity of the warrant.

[44]

Counsel
    for the appellant submit that the trial judge erred in refusing to permit
    cross-examination of the affiant on matters relevant to the credibility and/or
    reliability of the information provided by the confidential informant.  Counsel
    submit that this cross-examination would have gone to the validity of the
    warrant and was properly the subject of cross-examination even on a narrow
    reading of
Garofoli
and
Pires
.

[45]

Counsel
    point to three areas in which they sought to cross-examine the affiant.  First,
    the affiant says nothing in the ITO about the confidential informants motive
    for assisting the police.  Counsel argue that cross-examination of the affiant
    concerning his knowledge, if any, of the confidential informants motive and
    his reasons for not including any reference to that motive in his affidavit,
    assuming he was aware of one, could well impact on the affiants credibility
    and/or the reasonableness of his reliance on information provided by the confidential
    informant.

[46]

Second,
    counsel refer to the affiants description of the prior assistance to the
    police provided by the confidential informant.  The affiant stated that the
    confidential informant had provided information in the past and that the
    information had been accura[te].  There is no elaboration or explanation
    offered.  Counsel submit that cross-examination of the affiant could well
    disclose whether the affiant had any real basis upon which to describe the confidential
    informant as having provided accurate information.

[47]

Third,
    counsel point to the affiants description of the confidential informants
    criminal record as not involving crimes of deception.  Counsel contend that
    cross-examination of the affiant could bring clarity to the vague phrase used
    by the affiant and might well provide insight into the affiants candor and the
    reasonableness of his belief in the truthfulness of information coming from the
    confidential informant.

[48]

The
    trial judge ultimately declined to allow cross-examination on any of the areas
    relevant to the confidential informants reliability or credibility.  He was
    properly concerned about permitting cross-examination on matters that might
    identify the confidential informant.  In concluding that none of the proposed
    areas of cross-examination that were relevant to the confidential informants
    reliability or credibility justified cross-examination, the trial judge focused
    on whether there was reason to question the accuracy of any of those parts of
    the ITO.

[49]

There
    is merit in the submissions made by counsel for the appellant.  The affiants
    belief in the truth of the information that purportedly came from the confidential
    informant was crucial to the existence of reasonable grounds for the warrant. 
    Steps taken by the affiant to inquire into the confidential informants
    reliability and credibility and what he did and did not know about matters
    relevant to the confidential informants credibility were germane to the
    affiants belief that reasonable grounds existed for the warrant.

[50]

It
    may be that a carefully controlled cross-examination of the affiant would have
    allowed counsel for the accused at trial to explore at least to some degree the
    three areas outlined above without risking identification of the confidential
    informant.  For example, cross-examination of the affiant as to his knowledge
    of the confidential informants motive for assisting the police, apart entirely
    from what that motive may have been, could, depending on the answers,
    negatively impact on the affiants credibility or the reasonableness of his
    belief in the information provided by the confidential informant.  It is not
    apparent to me how that kind of focused questioning could have risked
    identifying the confidential informant.

[51]

Some
    might describe my hypothetical cross-examination of the affiant as a fishing
    expedition.  It is hard, however, to know what additional information an
    accused could possibly produce to support the claim to cross-examine the
    affiant on his knowledge of the confidential informants motives for
    co-operating with the police.  The affiant chose to say nothing about the confidential
    informants motives in the ITO.  One can safely assume that a confidential
    informant has a motive for co-operating with the police.  Putting these two
    factors together seems to me to be enough to justify cross-examination of the
    affiant as to his knowledge of the confidential informants motives as long as
    that cross-examination does not risk identifying the confidential informant.

[52]

In
    the end however, what I may or may not have done had the motion to
    cross-examine been before me is not determinative of the appeal.  A trial
    judges ruling permitting or refusing cross-examination of the affiant is an
    exercise of the trial judges discretion.  This court must defer to the trial
    judge absent demonstration that the discretion was not exercised judicially:
Pires,
at paras. 46-47.

[53]

The
    appellant has not convinced me that the trial judges refusal to permit
    cross-examination in the three areas described above falls outside the proper
    exercise of his judicial discretion.  It was open to the trial judge to
    conclude, in the absence of any material extraneous to the ITO itself, and
    having regard to the entirety of the ITO, that there was not a reasonable
    likelihood that cross-examination of the affiant on the areas set out above was
    likely to assist the court in determining whether the warrant should have
    issued.  In this respect, I think it is significant that the grounds advanced
    in this ITO in support of the warrant emphasized the cogency of the confidential
    informants information and the presence of independent confirmation of that
    evidence.  As noted by the trial judge, there was very little in the ITO to
    support the credibility of the confidential informant.  The three areas of
    potential cross-examination outlined above 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: see
Pires
,

paras. 33 and 36.

[54]

Some
    judges may, in the exercise of their discretion, have permitted limited
    cross-examination of the affiant on the three areas described above.  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.


IV



conclusion

[55]

I
    would dismiss the appeal.

RELEASED:   AH  AUG 24 2015

Doherty J.A.

I agree Alexandra Hoy A.C.J.O.

I agree M.L. Benotto
    J.A.


