



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bain, 2021 ONCA 811

DATE: 20211112

DOCKET: C67078

Doherty, Pardu and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Paul Hunter Bain

Appellant

Craig Zeeh, for the appellant

Andrew Hotke, for the respondent

Heard and released orally:
    November 10, 2021

On appeal from the conviction entered on
    January 18, 2018 and the sentence imposed on August 17, 2018 by Justice G.D.
    Lemon of the Superior Court of Justice.

REASONS FOR DECISION


[1]

The appellant submits that the application judge
    should have allowed cross-examination of the affiant on his failure to include in
    his affidavit information from a source suggesting the appellant had a
    residence other than the residence identified by the affiant in his affidavit.

[2]

We do not accept this submission. The
    information went no further than to suggest the appellant was at or could be
    found at a location other than the place identified as his residence in the
    affidavit. This is hardly surprising. People can routinely be found in
    different places. That information did not, in our view, detract from the
    assertion in the affidavit that the appellant lived at the named residence. Nor
    was it sufficiently cogent to provide a basis upon which the trial judge should
    have allowed cross-examination. The decision to allow cross-examination of the
    affiant is a discretionary one. We would not interfere with the manner in which
    the application judge exercised that discretion.

[3]

The appellant next submits that the information
    provided by CI#1 should have been redacted from the affidavit and, that absent
    that information, there were inadequate grounds upon which to issue the
    warrant. CI#1 sent a text message to a police officer in which CI#1 included a
    comment suggesting he regularly lied to the police. This comment was a general
    one and made no reference to any specific investigation or any specific
    information.

[4]

The affiant was aware of the text message, but did
    not include the information in his affidavit. The application judge permitted
    cross-examination of the affiant on the text message. In that
    cross-examination, the affiant readily acknowledged that he should have
    included the information in his affidavit. The officer did not consider the
    comment as being made in reference to this investigation and the text message
    simply slipped his mind.

[5]

The trial judge accepted the affiants explanation.
    She was satisfied there was no attempt to mislead the court. She also accepted
    the affiants evidence that he did not interpret the comment in the text as a
    recantation of the very specific information CI#1 had given him about the
    appellant in relation to this particular investigation.

[6]

Given the application judges findings, there
    was no basis upon which to excise the information provided by CI#1. It was open
    to the application judge to consider the content of the ITO affidavit amplified
    by the cross-examination when determining whether there was and remained a
    basis upon which the warrant could properly have issued.

[7]

The application judge found that the information
    in the affidavit was detailed and specific. CI#1 had seen the gun in the place
    to be searched and provided details to that effect. There was evidence
    corroborating the evidence provided by CI#1. It was open to the application
    judge to conclude that the information in the affidavit, considered in its
    entirety, provided a basis upon which the issuing judge could have been
    satisfied there was reliable evidence that might reasonably be believed
    justifying the issuance of the warrant. That is as far as the application judge
    could go on the application to quash the warrant.

[8]

The appeal is dismissed.

Doherty
    J.A.

G.
    Pardu J.A.

J.A.
    Thorburn J.A.


