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The Ontario Court of Appeal dismissed Jesse Egan’s appeal from a conviction for possession of fentanyl for trafficking, upholding the vehicle warrant and refusal to allow cross-examination of the affiant.
The Ontario Court of Appeal dismissed Michael Dalia’s appeal, upholding the warrant, refusing relitigation of the cross-examination issue, and admitting the evidence despite a s. 10(b) delay.
The appeal is dismissed. The trial judge did not misapprehend the appellant's submissions and reasonably concluded there was not a realistic likelihood that cross‑examination of the affiant would establish deliberate or reckless inclusion of impermissible Charter‑breached material warranting excision or setting aside; appellate deference applies. The trial judge did not impermissibly rely on the appellant's pretrial silence in assessing credibility, but rather noted the absence of prior statements as a lack of material for consistency analysis and expressly stated there was no obligation to d…
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The court partly granted leave to cross-examine the ITO affiant on specified paragraphs, denied leave on others, and limited the examination to three hours.
The court granted leave to cross-examine the affiant only on one limited BMO-safety-deposit-box inference, and dismissed the rest of the application.
The appellate court held the trial judge erred in law by exceeding the permissible scope of warrant review—reweighing evidence, drawing preferential inferences, and relying on evidence from a separate voir dire without incorporation—requiring that the acquittals based on the quashed warrant for 306 Adelaide be set aside and a new trial ordered; the court also held that denial of leave to cross‑examine the affiant does not, by itself, preclude a sub‑facial challenge.
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The court granted leave in part to cross-examine a wiretap affiant on specific factual issues, but refused broad challenges to investigative necessity and other general objections.
Appellate court dismisses the appeal: (1) appellant cannot complain about refusal to grant leave to cross-examine where he abandoned the application at trial and such leave is a discretionary Garofoli exercise; (2) the appellant was properly named as a "known" person because s.185(1)(e) requires only identity and reasonable grounds to believe interception may assist the investigation and s.186(1) conditions apply to the investigation as a whole rather than to each named individual; (3) paragraph 6(c)'s minimization/live monitoring obligation is properly read to require live monitoring only at…
Source excerpt
The application for additional disclosure was dismissed because the material sought was largely irrelevant to the authorization and the charges or would risk disclosure of confidential informant identities protected by absolute informer privilege; no evidentiary basis was shown for a Charter breach or the grant of leave to cross-examine the affiant under Garofoli, and a stay was unjustified.
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The court upheld a DNA warrant after finding a disclosure omission, but no invalid warrant or basis to exclude the sample under s. 24(2).
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