R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 SCR 343

                                                 SUPREME COURT OF CANADA

Between:

Francisco Batista Pires

Appellant

and

Her Majesty The Queen

Respondent

‑ and ‑

Attorney General of Ontario, Attorney General of British

Columbia and Criminal Lawyers’ Association (Ontario)

Interveners

and between:

Ronaldo Lising

Appellant

and

Her Majesty The Queen

Respondent

‑ and ‑

Attorney General of Ontario, Attorney General of British

Columbia and Criminal Lawyers’ Association (Ontario)

Interveners

Coram: McLachlin C.J. and Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ.

______________________________

R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343, 2005 SCC 66

Francisco Batista Pires                                                                                    Appellant

v.

Her Majesty The Queen                                                                               Respondent

and

Attorney General of Ontario, Attorney General of British

Columbia and Criminal Lawyers’ Association (Ontario)                             Interveners

- and -

Ronaldo Lising                                                                                                 Appellant

v.

Her Majesty The Queen                                                                               Respondent

and

Attorney General of Ontario, Attorney General of British

Columbia and Criminal Lawyers’ Association (Ontario)                             Interveners

Indexed as:  R. v. Pires; R. v. Lising

Neutral citation:  2005 SCC 66.

File Nos.:  30151, 30240.

2005:  May 18; 2005:  November 17.

Present:  McLachlin C.J. and Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for british columbia

Criminal law — Interception of private communications — Entitlement of accused to cross‑examine on affidavits — Accused denied leave to cross‑examine peace officer who filed affidavit in support of wiretap authorizations — Whether accused entitled as of right to cross‑examine affiant — Whether Garofoli approach should be abandoned.

Constitutional law — Charter of Rights  — Unreasonable search or seizure — Right to full answer and defence — Interception of private communications — Accused denied leave to cross‑examine peace officer who filed affidavit in support of wiretap authorizations — Whether requirement that leave be granted to cross‑examine affiant consistent with Charter  principles.

 In a police investigation, M, a self‑admitted drug dealer and petty criminal, agreed to “wear a wire” and act as police agent.  Based on their agreement with M, the police applied for a consent wiretap authorization under s. 184.2  of the Criminal Code .  The required affidavit was sworn and the authorization was granted permitting the interception of the private communications of both accused and other associates when any of them was speaking with M.  The accused were subsequently charged with a number of drug‑related offences.  At trial,  the accused challenged the admissibility of the tapes of conversations intercepted.  They contended that the statutory preconditions for the authorization had not been met and that their right under s. 8  of the Canadian Charter of Rights and Freedoms  had been violated.  In support of this Charter  application, the accused sought leave to cross‑examine the peace officer on his affidavit.  Relying on  R. v. Garofoli, [1990] 2 S.C.R. 1421, the trial judge denied leave to cross‑examine the affiant and ultimately ruled the wiretap evidence to be admissible.  The Court of Appeal upheld the trial judge’s ruling, concluding that leave to cross‑examine was properly denied.

Held:  The appeals should be dismissed.

The Garofoli approach to cross‑examination is consistent with Charter  principles.  The Garofoli threshold test requires that the defence show a reasonable likelihood that cross‑examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewing judge.  It is grounded in two basic principles of evidence:  relevance and materiality. It is also borne out of concerns about the prolixity of proceedings and, in many cases, the need to protect the identity of informants.  The rule does not infringe the right to make full answer and defence.  There is no constitutional right to adduce irrelevant or immaterial evidence.  The Garofoli threshold test is nothing more than a means of ensuring that, when a s. 8  Charter  challenge is initiated, the proceedings remain focussed and on track. [3] [31]

There is no need to revisit Garofoli in view of subsequent legislative amendments and jurisprudential developments.  The leave requirement to cross‑examine strikes an appropriate balance between the entitlement to cross‑examination as an aspect of the right to make full answer and defence, and the public interest in the fair, but efficient, use of judicial resources and the timely determination of criminal proceedings.  While the right to cross‑examine is of fundamental significance to the criminal trial process, it is neither unlimited nor absolute.  The extent to which it becomes a necessary adjunct to the right to make full answer and defence depends on the context.  An important contextual factor is the accused’s right to full disclosure.  The defence not only has access to all the documents relating to the authorization, but is also entitled to all material in the possession or control of the Crown that is potentially relevant to the case.  Another relevant contextual factor is the important distinction between the right to test evidence introduced at the trial on the merits and the threshold evidentiary hearing to determine the admissibility of that evidence.  The Garofoli review hearing is not intended to test the merits of any of the Crown’s allegations in respect of the offence.  The truth of the allegations asserted in the affidavit as they relate to the essential elements of the offence remain to be proved by the Crown on the trial proper.  Rather, the review is simply an evidentiary hearing to determine the admissibility of relevant evidence about the offence obtained pursuant to a presumptively valid court order.  The statutory preconditions for wiretap authorizations will vary depending on the language of the provision that governs their issuance.  The reviewing judge on a Garofoli hearing only inquires into whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed.  There is thus only a relatively narrow basis for exclusion.  Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory preconditions.  In the end analysis, the admissibility of the wiretap evidence will not be impacted under s. 8  if there remains a sufficient basis for issuance of the authorization. [3] [25‑30]

In the circumstances of this case, the trial judge did not err in denying the accused leave to cross‑examine the affiant.  There was no reasonable likelihood that cross‑examination  would elicit evidence of any probative value to the issue for consideration on a review of the authorization.  The material issue for consideration on the voir dire in this case is whether at the time of granting the authorization there existed, on an objective basis, reasonable grounds to believe that:  (a) an offence was or will be committed and (b) information concerning the offence will be obtained by the proposed interception.  There is no contention that the information provided to the affiant by M, if reasonably credible, is insufficient to establish the requisite grounds.  Although the affiant’s own credibility may be material on a Garofoli hearing, the proposed cross‑examination could, at best, reveal that the affiant overstated the potential value of polygraph results in support of his belief in M’s truthfulness.  This is insufficient to meet the Garofoli threshold. [4] [61‑68]

 The threshold test for determining whether cross‑examination should be allowed is separate and distinct from the ultimate question of whether the authorization is valid.  Hence, in determining whether the threshold test has been met, the trial judge cannot decide the question simply on the basis that other parts of the affidavit would support the authorization.  The focus, rather, must be on the likely effect of the proposed cross‑examination and on whether there is a reasonable likelihood that it will undermine the basis of the authorization.  If the test is met, it is only at the conclusion of the voir dire that the trial judge will determine whether, on the basis of the amplified record, there still remains a basis for the authorization.  However, the trial judge’s apparent collapse of the two tests was of no consequence  in this case. [69]

Cases Cited

Applied:  R. v. Garofoli, [1990] 2 S.C.R. 1421; referred to:  R. v. Parsons (1977), 37 C.C.C. (2d) 497, aff’d [1980] 1 S.C.R. 785 (sub nom. Charette v. The Queen); Wilson v. The Queen, [1983] 2 S.C.R. 594; R. v. Chesson, [1988] 2 S.C.R. 148; R. v. Duarte, [1990] 1 S.C.R. 30; Franks v. Delaware, 438 U.S. 154 (1978); Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Bordage (2000), 146 C.C.C. (3d) 549; R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; R. v. Lyttle, [2004] 1 S.C.R. 193, 2004 SCC 5; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Vukelich (1996), 108 C.C.C. (3d) 193, leave to appeal refused, [1997] 2 S.C.R. xvi; R. v. Durette (1992), 72 C.C.C. (3d) 421; R. v. Mohan, [1994] 2 S.C.R. 9; R. v. Lachance, [1990] 2 S.C.R. 1490; R. v. Williams (2003), 181 C.C.C. (3d) 414; R. v. Silvini (1997), 96 O.A.C. 310; R. v. Bernshaw, [1995] 1 S.C.R. 254.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 8 , 24 .

Criminal Code, R.S.C. 1970, c. C‑34, ss. 178.11(2)(a), 178.12(1)(e), 178.13(2)(c),  178.16.

Criminal Code, R.S.C. 1985, c. C‑46, ss. 184.2 , 185 , 187(1.4) , 189(5) , 254(3) , 276(1) , 278.2 .

APPEAL from a judgment of the British Columbia Court of Appeal (Finch C.J. and Southin and Newbury JJ.A.) (2004), 193 B.C.A.C. 42, 316 W.A.C. 42, 183 C.C.C. (3d) 232, 116 C.R.R. (2d) 100, [2004] B.C.J. No. 83 (QL), 2004 BCCA 33, upholding the accused’s convictions on conspiracy and drug‑related charges.  Appeals dismissed.

Kenneth S. Westlake and Eric V. Gottardi, for the appellant Pires.

Gregory P. DelBigio, for the appellant Lising.

S. David Frankel, Q.C., and Ronald C. Reimer, for the respondent.

Alexander D. Smith and Scott C. Hutchison, for the intervener the Attorney General of Ontario.

M. Joyce DeWitt‑Van Oosten, for the intervener the Attorney General of British Columbia.

Michael Code, for the intervener the Criminal Lawyers’ Association (Ontario).

The judgment of the Court was delivered by

Charron J. —

1.         Introduction

1                                   The appellants were convicted of several drug-related charges.  Their trial before judge and jury occupied 77 days.  The sole issue on this appeal is whether the appellants were wrongfully denied leave to cross-examine the affiant who filed in support of the first of several wiretap authorizations utilized during the investigation. The appellants sought leave to cross-examine the peace officer in support of their challenge to the admissibility of the wiretap evidence obtained pursuant to the judicial authorization. The trial judge, applying the law set out in R. v. Garofoli, [1990] 2 S.C.R. 1421, held that the appellants had not made out a basis for the cross-examination. He dismissed their application to cross-examine the peace officer and, at the conclusion of the hearing, confirmed the validity of the authorization.  His ruling was affirmed on appeal ((2004), 193 B.C.A.C. 42, 2004 BCCA 33).

2                                   The appellants urge this Court to abandon the approach adopted in Garofoli and to hold that an accused, on a challenge to the admissibility of wiretap evidence, is entitled as of right to cross-examine the affiant who filed in support of the authorization.   They submit that the Garofoli leave requirement is no longer justified and constitutes an unconstitutional limitation on the right to make full answer and defence.  Alternatively, they submit that the courts below interpreted the Garofoli standard too strictly in denying them leave to cross-examine the affiant even though, in the opinion of the trial judge, part of the affidavit contained what “appear[ed] to be” misleading evidence.

3                                   There is no question that the right to cross-examine is of fundamental significance to the criminal trial process.  However, it is neither unlimited nor absolute. The extent to which it becomes a necessary adjunct to the right to make full answer and defence depends on the context.  The Garofoli threshold test requires that the defence show a reasonable likelihood that cross-examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewing judge.  It is grounded in two basic principles of evidence:  relevance and materiality.  It is also born out of concerns about the prolixity of proceedings and, in many cases, the need to protect the identity of informants.  The rule does not infringe the right to make full answer and defence.  There is no constitutional right to adduce irrelevant or immaterial evidence. Further, the leave requirement strikes an appropriate balance between the entitlement to cross-examination as an aspect of the right to make full answer and defence, and the public interest in the fair, but efficient, use of judicial resources and the timely determination of criminal proceedings.

4                                   I therefore conclude that the Garofoli threshold test meets constitutional standards.  Further, I am not persuaded that the trial judge erred in denying the appellants leave to cross-examine the affiant in the circumstances of this case.  I would therefore dismiss the appeal.

5                                   I will first review the principles established in Garofoli.  Next, I will deal with the alleged unconstitutionality of the leave requirement.  Finally, I will review the proceedings below and give my reasons for concluding that this Court should not intervene with the trial judge’s ruling.

2.         The Garofoli Leave Requirement

6                                   In the years leading up to Garofoli and its companion cases, the law with respect to testing the admissibility of wiretap evidence had become what Sopinka J. described as a “procedural quagmire” (Garofoli, at p. 1445). The various procedures, each addressing a discrete procedural challenge and drawing on different bases for jurisdiction, had generally become known by the name of the cases that initiated them. They were the following:

(1)               a Parsons voir dire before the trial judge to determine whether the authorization is valid on its face whether the interception was executed within its terms, and whether statutory terms were complied with, the remedy being exclusion under the former s. 178.16  of the Criminal Code  (R. v. Parsons (1977), 37 C.C.C. (2d) 497 (Ont. C.A.), aff’d [1980] 1 S.C.R. 785 (sub nom. Charette v. The Queen));

(2)               a Wilson application before the issuing court to determine the substantive or subfacial validity of the affidavit, the remedy being the setting aside of the authorization (Wilson v. The Queen, [1983] 2 S.C.R. 594);

(3)               a Garofoli hearing before the trial judge to determine whether the authorization complies with s. 8  of the Canadian Charter of Rights and Freedoms , the remedy being a determination of whether the evidence should be excluded under s. 24(2)  of the Charter ; and

(4)               a Vanweenan hearing before the trial judge to determine whether the authorization names all “known” persons as required by the former ss. 178.12(1) (e) and 178.13(2) (c) of the Criminal Code , the remedy being exclusion under the former s. 178.16  (R. v. Chesson, [1988] 2 S.C.R. 148).

7                                   This Court in Garofoli consolidated these hearings, wiping away much of the complexity created by the earlier litigation, by using the overriding constitutional nature of the challenge to the admissibility of the evidence as the relevant framework of analysis.  In adopting this approach, jurisdictional issues were resolved and any court authorized to entertain a Charter  challenge has jurisdiction to conduct a full substantive review of the authorization.

8                                   The admissibility of wiretap evidence is therefore governed by the following principles.

(1)               Wiretaps constitute a search or seizure within the meaning of s. 8  of the Charter  (R. v. Duarte, [1990] 1 S.C.R. 30).  Therefore, the statutory provisions authorizing them must conform to the minimum constitutional requirements demanded by s. 8 . 

In Duarte, at p. 60 the Court held that the wiretap provision of the Criminal Code  authorizing the interception of private communications under judicial authorization (the former s. 178.12 , now s. 185  of the Criminal Code, R.S.C. 1985, c. C-46 ),  was consonant with the rights guaranteed by s. 8  of the Charter .  However, the Court held that the interception of private communications by the state, with the consent of the originator or intended recipient thereof but without prior judicial authorization, infringed s. 8 .  In response to Duarte, s. 184.2 was enacted permitting the interception of private communications with the consent of a participant under judicial authorization.  As will be discussed later, the authorization in this case was obtained under s. 184.2 .  The appellants challenged the constitutionality of s. 184.2  at trial; the trial judge rejected their argument and his ruling was not challenged on appeal.

(2)               Without substantive compliance with the statutory regime, the wiretap is illegal and, given the consonance between the statutory provisions and the constitutional requirements, also unconstitutional.

The statutory preconditions for wiretap authorizations will vary depending on the language of the provision that governs their issuance.  The application for an authorization is made ex parte and in writing to a judge.  The authorizing judge must be satisfied on the basis of affidavit evidence that the applicable statutory conditions have been met.

(3)               When an accused later asserts that the wiretap infringed his s. 8  Charter  right, the reviewing judge must determine whether the interception constitutes an unreasonable search or seizure.  This involves an inquiry into whether the statutory preconditions have been met.

The review is based on the documents relating to the authorization (available to the defence upon request under s. 187(1.4)  of the Criminal Code ) and the submissions of counsel.  Further evidence may be adduced at the review hearing.  If the reviewing judge concludes that, on the material before the authorizing judge as amplified by any evidence taken on review, there was no basis upon which the authorizing judge could be satisfied that the preconditions for the granting of the authorization existed, the reviewing judge will conclude that the search or seizure contravened s. 8  of the Charter .  The review is not a hearing de novo.  The proper standard of review was explained in Garofoli as follows:

The reviewing judge does not substitute his or her view for that of the authorizing judge.  If, based on the record which was before the authorizing judge as amplified on the 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 all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.  [p. 1452]

(4)               In cases where the wiretap contravened s. 8  of the Charter , the reviewing judge determines whether the evidence should be excluded under s. 24(2)  of the Charter .

The absolute statutory exclusionary rule in the former s. 178.16  avoided any need to address s. 24(2) .  The automatic statutory exclusion has since been repealed in 1993 and any remedy resulting from a finding of unconstitutionality must be determined in accordance with s. 24(2)  of the Charter .  The appellants rely in part on these 1993 amendments in support of their contention that Garofoli should be revisited. I will deal with this argument later.

9                                   It is within this overarching review of the “procedural quagmire” that the cross-examination issue was considered in Garofoli.  In Garofoli, as in this case, the defence argued that an accused on a review hearing was entitled, as of right, to cross-examine the affiant who filed in support of a judicial authorization.  The Crown, on the other hand, relying on the leading authority of Franks v. Delaware, 438 U.S. 154 (1978), at pp. 155-56, contended that an accused must first make “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit”.   This Court resolved the issue by adopting a middle ground between the two competing positions advanced by the parties.

10                               A majority of the Court rejected the restrictive American approach.  Subject to the protection of the identity of informants and the concern with respect to the prolongation of proceedings, Sopinka J. saw no reason for such a drastic curtailment of the right to cross-examine.  The defence position was also rejected. With respect to informants, the Court held that there is no right to cross-examine.  The informant is not a witness and, in the case of a confidential informant, cannot be identified unless the accused brings himself within the “innocence at stake” exception.  With respect to the affiant, the Court recognized the need to circumscribe the cross-examination within reasonable limits.  First, there would need to be a threshold showing of a basis for embarking on an enquiry and second, when permitted, the cross-examination should be confined to questions directed to the issue for consideration by the court.  Sopinka J. described the test as follows:

With respect to prolixity, I am in favour of placing reasonable limitations on the cross-examination.  Leave must be obtained to cross-examine.  The granting of leave must be left to the exercise of the discretion of the trial judge.  Leave should be granted when the trial judge is satisfied that 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.

When permitted, the cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted.  The discretion of the trial judge should not be interfered with on appeal except in cases in which it has not been judicially exercised.  While leave to cross-examine is not the general rule, it is justified in these circumstances in order to prevent an abuse of what is essentially a ruling on the admissibility of evidence.  [p. 1465]

3.         Constitutionality of the Leave Requirement

3.1       The Appellants’ Argument

11                               As noted earlier, the appellants contend that the Garofoli requirement of showing a basis for the cross-examination of an affiant is no longer justifiable and that cross-examination should be permitted as of right.  They advance three main arguments in support of their position.  I will deal with each in turn.

3.1.1    Have the 1993 Criminal Code Amendments Changed the Legal Landscape?

12                               First, the appellants contend that the current regime under Part VI of the Criminal Code  is “quite different” from the statutory scheme that was in place when Garofoli was decided.  Under the previous statutory scheme, the general rule in respect of wiretap evidence was exclusionary.  The evidence was inadmissible unless the Crown could bring it within one of the statutory exceptions and show that “the interception was lawfully made”.  Hence, if the wiretap did not meet the statutory preconditions, the evidence could not be admitted against the accused.  Under the present regime, it is the accused who bears the burden on a s. 24  Charter  application of  proving that his rights were violated and the remedy, rather than being an automatic exclusion, is left to be determined under s. 24(2)  of the Charter .  The appellants argue that the repeal of the former exclusionary rule has effectively shifted the onus in relation to the admissibility of wiretap evidence from the Crown to the accused.  Hence they submit that under the current statutory scheme, where the accused bears the onus of proof, it is inconsistent with the right to make full answer and defence that the accused also bear an evidentiary burden to demonstrate that the cross-examination of the affiant on the supporting affidavit is necessary.

13                               I am not persuaded by this argument.  As I will explain, the alleged effect of these amendments on who bears the ultimate onus of proof in respect of the admissibility of the evidence is more illusory than real.

14                               The repeal of the “lawful interception” statutory precondition to the admissibility of the intercepted communications removed the need for the Crown to prove two of the three matters which had been the subject of the Parsons voir dire:  the facial validity of the authorization, and whether it had been implemented in accordance with its terms (see Garofoli, p. 1445).  (The obligation to prove reasonable notice of the intention to introduce the evidence remains by virtue of s. 189(5)  of the Criminal Code .) 

15                               Insofar as the facial validity of the authorization is concerned, the 1993  amendments have no real practical effect on the accused’s onus.  The first question to be determined on a Charter  challenge is whether the search is authorized by law.  In order to answer this question, the reviewing judge must determine whether the Criminal Code  provisions have been satisfied.  While the accused bears the onus of proving the alleged Charter  violation, in answer to the accused’s challenge, the evidentiary burden of producing a facially valid authorization will inevitably remain on the Crown, failing which the accused will have met his persuasive burden on this point with ease.

16                               The second amendment (removing the need to prove as a precondition for admissibility that the authorization was implemented according to its terms) can have no bearing on whether cross-examination of the affiant ought to be permitted.  The affidavit filed in support of the authorization will necessarily relate to the period of time preceding the application for an authorization, not its implementation.  Hence, cross-examination on the affidavit would not assist the accused on this point.

17                               The manner in which the authorization was implemented, of course, is still subject to inquiry by the reviewing court on a Charter  challenge.  In order to be reasonable and hence constitutional, the search must not only be made in accordance with legal authority that is itself reasonable, it must be carried out in a reasonable manner:  Hunter v. Southam Inc., [1984] 2 S.C.R. 145.  However, on this question of whether the authorization was implemented in a reasonable manner, the defence is not left empty-handed as a result of the 1993 Code amendments.  As the Crown aptly points out, the more significant post-Garofoli development is the comprehensive disclosure of investigative materials now required by R. v. Stinchcombe, [1991] 3 S.C.R. 326.  Stinchcombe mandates a level of investigative transparency such that it provides the accused with the relevant evidence on how the authorization was implemented, as well as other details of the investigation.  This development can only have enhanced the accused’s ability to meet the Garofoli threshold requirement for cross-examination.

18                               Finally, there is nothing in the Court’s reasoning in Garofoli suggesting that the automatic exclusionary rule in existence at the time influenced the decision to impose a threshold requirement for an evidentiary hearing.  It is also relevant to note that the automatic exclusionary rule under the former regime was not absolute.  The evidence could nonetheless be admitted where the judge was of the opinion that it was relevant to an issue in the proceedings and was inadmissible by reason only of a defect of form or an irregularity in procedure that was not substantive in nature:  see former s. 178.16(3).  Further, evidence obtained directly or indirectly as a result of information acquired by the interception of a private communication was not inadmissible by reason only that the private communication itself was inadmissible in evidence:  former s. 178.16(1).

19                               I therefore conclude that the appellants’ contention that the 1993 amendments to the Criminal Code  had “a significant and lasting impact on the ability of accused persons to challenge the sub-facial validity of wiretap authorizations” cannot be accepted.

3.1.2    Does the Statutory Authorization Process Provide Adequate Procedural Safeguards?

20                               Second, the appellants contend that the ex parte and in camera wiretap authorization process lacks sufficient procedural safeguards and that the procedure in Part VI of the Criminal Code  (containing the provisions on invasion of privacy) does not strike the appropriate balance between the individual’s privacy interest and the public’s interest in crime detection.  Hence, they submit that allowing an applicant to cross-examine, as a matter of right, the deponent of an affidavit filed in support of the wiretap authorization would provide a further counterbalance and enhance the appearance of fairness.

21                               In essence, this aspect of the appellants’ argument strikes at the constitutionality of the entire statutory scheme authorizing the interception of private communications.  In general terms, prior judicial authorization may be obtained for “traditional” third-party surveillance and, since 1993, for “participant” or “consent” surveillance, i.e., interception of communications with the consent of the originator or recipient of the communication.  As noted earlier, the latter provisions allowing for participant surveillance under judicial authorization were enacted in answer to this Court’s decision in Duarte.  In Garofoli, the statutory requirements relating to traditional third-party surveillance were found to be identical to those demanded by s. 8  of the Charter  and, hence, constitutional.  The constitutionality of the participant surveillance provisions was upheld by the Quebec Court of Appeal in R. v. Bordage (2000), 146 C.C.C. (3d) 549.  At trial, the appellants attacked the constitutional validity of the participant surveillance provisions.  It was not made clear before this Court on what basis they did so.  However, their application was dismissed at trial and the issue was not pursued in the Court of Appeal or in their leave application before this Court.  Therefore, to the extent that the appellants’ argument purports to attack the constitutional validity of the underlying legislation, the question is not before us and I do not find it necessary to comment further on it.

22                               I wish to note however that the appellants’ description before this Court of the authorization process and the passive role of the authorizing judge in that process is inaccurate.  On the role of the authorizing judge, the comments of LeBel J. in R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65, bear repeating:

Thus, the authorizing judge stands as the guardian of the law and of the constitutional principles protecting privacy interests.  The judge should not view himself or herself as a mere rubber stamp, but should take a close look at the material submitted by the applicant.  He or she should not be reluctant to ask questions from the applicant, to discuss or to require more information or to narrow down the authorization requested if it seems too wide or too vague.  The authorizing judge should grant the authorization only as far as need is demonstrated by the material submitted by the applicant.  [para. 29]

3.1.3    Is the Garofoli Leave Requirement Consistent With Subsequent  Charter Jurisprudence?

23                               Third, the appellants submit that three important principles, repeatedly enforced by this Court in its Charter  jurisprudence, favour the abolishment, or alternatively, the relaxation of the Garofoli leave requirement.  These principles are: the recognized importance of a broad right to cross-examination; the lower standard generally applicable to the admissibility of defence evidence; and the need to ensure access to the remedial scheme in the Charter .

24                               There is no debate that these important principles are relevant both in the formulation of an appropriate standard for allowing cross-examination and in its application.  However, the accused’s right to an evidentiary hearing must be considered in context.  It must also be balanced against countervailing interests, including the need to ensure that the criminal trial process is not plagued by lengthy proceedings that do not assist in the determination of the relevant issues.  As I will explain, the appellants’ argument ignores important contextual factors.  When the proposed cross-examination of an affiant is considered in the context of the review hearing and its narrow scope, it is my view that the Garofoli leave requirement strikes an appropriate balance between these competing interests.

3.2       Relevant Contextual Factors

25                               The first contextual factor that is ignored by the appellants’ argument has already been mentioned — the right to full disclosure.  Under s. 187(1.4) of the Criminal Code , the defence has access to all the documents relating to the authorization.  Access is granted on the simple assertion that the admissibility of the evidence is challenged and that access to the material is required in preparation for trial:  Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505, at p. 1517.  The material includes the affidavit filed in support of the application for an authorization.  Subject to any necessary editing for the protection of informants, the affidavit will usually provide a comprehensive account of the investigation leading up to the wiretap application, an articulation of the grounds relied upon in support of the application, and information relevant to the reasonable believability of material gathered from informants.  The affidavit filed in this case will be reviewed in detail later in these reasons.

26                               In addition, under the principles established in Stinchcombe, the defence is entitled to all material in the possession or control of the Crown that is potentially relevant to the case, whether favourable to the accused or not.  The defence can therefore compare the contents of the investigative file received from the Crown to the authorization’s supporting material to ascertain whether anything throws doubt on the reasonable believability of the latter.  Further, the disclosure material may also provide the defence with possible third-party avenues of inquiry.

27                               Hence, the defence does not arrive empty-handed at the evidentiary hearing.  More importantly, if no basis can be shown for questioning the validity of the authorization on the strength of the disclosed material, it is generally unlikely that cross-examination of the affiant will provide further material information.  I say it is unlikely because of the narrow focus of the inquiry on this evidentiary hearing.  This brings me to the next important contextual factor.

28                               The appellants’ argument, more particularly in respect of the broad right to cross-examination, fails to distinguish between the right to test evidence introduced at the trial on the merits and the threshold evidentiary hearing to determine the admissibility of that evidence.

29                               At trial, the guilt or innocence of the accused is at stake.  The Crown bears the burden of proving its case beyond a reasonable doubt.  In that context, the right to cross-examine witnesses called by the Crown “without significant and unwarranted constraint” becomes an important component of the right to make full answer and defence:  R. v. Lyttle, [2004] 1 S.C.R. 193, 2004 SCC 5, at para. 41.  If, through cross-examination, the defence can raise a reasonable doubt in respect of any of the essential elements of the offence, the accused is entitled to an acquittal.  Likewise, defence evidence, as a general rule, is only subject to exclusion where the prejudicial effect substantially outweighs its probative value:  R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 611.  The appellants rely heavily on these principles in support of their contention that they have a constitutional right to cross-examine the affiant who filed in support of the wiretap authorization.

30                               However, the Garofoli review hearing is not intended to test the merits of any of the Crown’s allegations in respect of the offence.  The truth of the allegations asserted in the affidavit as they relate to the essential elements of the offence remain to be proved by the Crown on the trial proper.  Rather, the review is simply an evidentiary hearing to determine the admissibility of relevant evidence about the offence obtained pursuant to a presumptively valid court order.  (I say “relevant” evidence because, if not relevant, its inadmissibility is easily determined without the need to review the authorization process.)  As indicated earlier, the statutory preconditions for wiretap authorizations will vary depending on the language of the provision that governs their issuance.  The reviewing judge on a Garofoli hearing only inquires into whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed.  For example, in this case, where the authorization relates to participant or consent surveillance, the reviewing judge must determine whether there was a basis for the authorizing judge to be satisfied that:

(a) there are reasonable grounds to believe that an offence has been or will be committed;

(b) either the originator or the intended recipient of the private communication has consented to the interception; and

(c) there are reasonable grounds to believe that information concerning the offence will be obtained by the interception.

Hence, there is a relatively narrow basis for exclusion.  Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions.  The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context.  In the end analysis, the admissibility of the wiretap evidence will not be impacted under s. 8  if there remains a sufficient basis for issuance of the authorization.

31                               It is in this narrower context that the right to cross-examine, as an adjunct to the right to make full answer and defence, must be considered.  There is no point in permitting cross-examination if there is no reasonable likelihood that it will impact on the question of the admissibility of the evidence.  The Garofoli threshold test is nothing more than a means of ensuring that, when a s. 8  challenge is initiated, the proceedings remain focussed and on track.  Even on the trial proper, the right to cross-examine is not unlimited.  In Lyttle, the Court reiterated the principle that counsel are “bound by the rules of relevancy and barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their probative value” (para. 44 (emphasis added)).  The Garofoli threshold test is all about relevancy.  If the proposed cross-examination is not relevant to a material issue, within the narrow scope of the review on admissibility, there is no reason to permit it.

32                               The accused remains free to make submissions and elicit relevant evidence on whether the interception constitutes an unreasonable search or seizure within the meaning of s. 8 .

3.3       Balancing Countervailing Interests

33                               When properly applied, the only thing that the leave requirement precludes the defence from eliciting through cross-examination is evidence that is unlikely to assist either the reviewing judge or the defence on the determination of admissibility.  Why then, the appellants ask, is cross-examination not simply allowed as of right with proper limitations on its scope instead?  The answer lies in the recognition, through the lens of judicial experience, of two important countervailing interests — the concern over the prolixity of proceedings and, in many cases, the need to protect informants.

34                               As noted earlier, the concern over prolixity was expressly stated as the reason for placing reasonable limits on cross-examination in Garofoli (p. 1465).  Provincial appellate courts have often expressed their concern over the increasing length of court proceedings. For example, counsel have referred us to R. v. Vukelich (1996), 108 C.C.C. (3d) 193 (B.C.C.A.), leave to appeal refused, [1997] 2 S.C.R xvi, where the importance of avoiding the inefficient use of court time was emphasized by McEachern C.J.B.C.  Chief Justice McEachern suggested the following approach at para. 17:

Generally speaking, I believe that both the reason for having, or not having, a voir dire, and the conduct of such proceedings, should, if possible, be based and determined upon the statements of counsel.  This is the most expeditious way to resolve these problems: see R. v. Dietrich (1970), 1 C.C.C. (2d) 49 (Ont. C.A.) at 62; R. v. Hamill (1984), 14 C.C.C. (3d) 338 (B.C.C.A.); and R. v. Kutynec (1992), 70 C.C.C. (3d) 289 (Ont. C.A.) at 301.  I suggest that judges must be more decisive in this connection than they have been in the past because far too much judicial time is consumed by the conduct of these kinds of enquiries.

Finlayson J.A., in R. v. Durette (1992), 72 C.C.C. (3d) 421 (Ont. C.A.), forcefully and succinctly expressed the same concern in the following words:

The Supreme Court of Canada and appellate courts across Canada have been attempting in recent years to restrict the issues that go to a jury to those which have, on the evidence, an air of reality to them.  Just as we have tried to restrict the trial of an accused on the merits to factual issues that are directly raised in the particular case, so should we strive to restrict pre-trial Charter  motions to matters of substance where defence counsel can establish some basis for a violation of a right.  Unless we, as courts, can find some method of rescuing our criminal trial process from the almost Dickensian procedural morass that it is now bogged down in, the public will lose patience with our traditional adversarial system of justice.  As Jonathan Swift might have said, we are presently sacrificing justice on the shrine of process. [p. 440]

35                               The concern over the constructive use of judicial resources is as equally, if not more, applicable today as it was 15 years ago when Garofoli was decided.  For our justice system to operate, trial judges must have some ability to control the course of proceedings before them.  One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one of the parties when that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court.

36                               The second countervailing interest against allowing cross-examination as of right is the need to protect the identity of informers.  As McLachlin J. (as she then was) noted in Garofoli (dissenting, but not on this point), cross-examination of the affiant increases the risk that the identity of informers might be revealed:

Cross‑examination is much more likely to reveal the details of investigative operations and the identity of informers than affidavits, which can be carefully drafted to avoid such pitfalls.  How can one cross‑examine an officer on the reliability of an informant without probing details that might reveal that informant’s identity, for example?  Once a damaging statement is made in answer to a question in cross‑examination, editing is to no avail. [p. 1485]

McLachlin J. further noted how difficult it is for the trial judge to restrict the scope of cross-examination:

Attempts to restrict the scope of cross‑examination are notoriously fallible. Since effective cross‑examination usually depends on considerable latitude in questioning, a restricted cross‑examination may be of little value. Moreover, it is often difficult to predict when a particular question will evoke a response that trenches on a prohibited area. [p. 1485]

37                               Finally, as aptly argued by the intervener the Attorney General of British Columbia, a requirement that the defence meet a threshold test of some sort before engaging in cross-examination, pursuing a specific line of inquiry, or eliciting evidence in support of a full answer and defence is not an anomaly within the criminal justice system.  To state but a few examples:  hearsay evidence, although sought to be elicited by the defence, must meet the requirements of necessity and reliability; proposed expert evidence must meet the criteria set out in R. v. Mohan, [1994] 2 S.C.R. 9; access to or cross-examination on matters protected by solicitor-client privilege must meet the requirements of the “innocence at stake” exception; cross-examination on a complainant’s sexual history is prohibited unless it meets the test under s. 276(1)  of the Criminal Code ; third-party records in respect of certain offences listed under s. 278.2  must be shown to be likely relevant to an issue at trial or to the competence of a witness to testify before they will be produced; defences must have an “air of reality” to them before they are put to the jury.  In this case, the defence must simply make a show of likely relevance on a material issue before the court.

38                               In conclusion, I am of the view that the Garofoli leave requirement is entirely consistent with Charter  principles.  There is no need to revisit Garofoli as contended by the appellants.  Indeed, I am of the view that it would be unwise to  permit cross-examination of the affiant as of right.

4.         Application of the Garofoli Standard

39                               Alternatively, the appellants submit that the Garofoli standard has generally been interpreted too restrictively, applied inconsistently, and that it should be clarified.  In particular, they submit that the courts below erred in the application of the threshold test in this case.  Before I discuss how the test was applied in the courts below, it may be useful to comment on its general application by trial judges and on the appropriate standard of appellate review.

4.1       The Threshold Test Is Not an Onerous One

40                               As discussed earlier, the 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 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.

41                               In some cases, the proposed cross-examination may be directed at the credibility or reliability of an informant.  However, cross-examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false.  We must not lose sight of the fact that the wiretap authorization is an investigatory tool.  At that stage, a reasonable belief in the existence of the requisite statutory grounds will suffice for the granting of an authorization.  Upon further investigation, the grounds relied upon in support of the authorization may prove to be false.  That fact does not retroactively invalidate what was an otherwise valid authorization.

42                               The fact situation in Garofoli itself provides a good example of a situation where the proposed cross-examination was directed not only at the lack of credibility of the informant but at the affiant’s likely awareness of that fact.  The informant alleged that he had been approached by Garofoli and another individual in Hamilton with an offer to supply him with two kilograms of cocaine.  In his affidavit, Garofoli stated that he lived in Florida at the relevant time.  He further stated that the officer in charge of the case was well aware that he was living in Florida and that he only travelled back to Hamilton in connection with his court appearances.  Furthermore, information from the informant person was critical to establishing the requisite reasonable grounds.  Sopinka J., for the majority, found that the appellant had shown a basis for the cross-examination:

In my opinion, the appellant has shown a basis for the cross‑examination here.  In view of the degree of reliance by the police on the informant in this case, if the informant is discredited then the factual basis for the authorization is undermined.  If it is shown that the informant lied, then it could raise the inference that the police knew or ought to have known that he lied.  If the police were not warranted in their belief that the information was true, then the basis for belief that a crime was to be committed disappears.  Accordingly, the appellant should have been permitted to cross‑examine.  Cross‑examination having been denied, there must be a new trial. [p. 1466]

43                               In other circumstances, it is the affiant’s own credibility that becomes material to establish the statutory preconditions.  For example, in R. v. Lachance, [1990] 2 S.C.R. 1490, the proposed cross-examination related to the statutory pre-condition of investigative necessity.  (The requirement of showing that other investigative measures have been tried and have failed or that they are unlikely to succeed is not a statutory precondition for granting a consent wiretap authorization.)  The basis for cross-examination was established on a showing that the affidavit filed in support of the authorization failed to disclose that a key informer was working as an undercover police agent.

44                               The insufficiency of the affidavit, on its face, may suffice to show a basis for cross-examination.  In R. v. Williams (2003), 181 C.C.C. (3d) 414, the statements in the affidavit concerning the utility of undercover operations were conclusory only and arguably understated the progress of the investigation. When considered in the context of the strict statutory requirement of showing investigative necessity, the Court of Appeal for Ontario held that the trial judge had erred in refusing leave to cross-examine the affiant:

In short, the appellant showed a basis for the view that the cross-examination would elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization, namely the investigative necessity requirement. Investigative necessity is a stringent requirement, requiring demonstration that there is, “practically speaking, no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry” (emphasis in original):  R. v. Araujo (2000), 149 C.C.C. (3d) 449 (S.C.C.), at para. 29.  There was a basis for believing that this exacting standard had not been met.  The same might be said here of the use of the undercover officers and police agents. [para. 14]

4.2       The Scope of the Cross-Examination When Leave Is Granted

45                               As stated in Garofoli, when leave to cross-examine is granted, “the cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted” (p. 1465).  In this way, the inquiry can remain focussed on the material issues.  For example, in R. v. Silvini (1997), 96 O.A.C. 310, the defence argued that once the trial judge granted leave to cross-examine, the only limit on cross-examination should be to curb prolixity and that the trial judge erred in restricting in advance the areas in which defence counsel could cross-examine the affiant.  The Court of Appeal for Ontario disagreed and, in referring to the relevant excerpt in Garofoli, stated at para. 9, as follows:

In our view, this passage . . . gives the judge the discretion to direct the scope of the cross-examination in advance if the judge considers it advisable to do so.  No doubt, if the judge found during the cross-examination that the limits were restricting the ability of the accused to demonstrate the grounds upon which the authorization was attacked, the judge would be required to reconsider those limits.  Alternatively, the judge could make rulings as the cross-examination proceeds.  However, unless it can be shown that this discretion was not exercised judicially, this court cannot interfere.

In my view, this is a sound approach.

4.3       The Appellate Standard of Review

46                               On reviewing a trial judge’s decision to permit or deny leave to cross-examine, an appellate court is not entitled to simply substitute its view for that of the trial judge.  The trial judge’s determination of whether the proposed cross-examination is reasonably likely to elicit evidence of probative value to the issues for consideration  involves an exercise of discretion.  The trial judge is in a better position to assess the material, the submissions of counsel and the evidence, if any, in the context of the particular voir dire and trial.  The need for a deferential standard of appellate review was recognized in Garofoli.  Sopinka J. stated that “[t]he discretion of the trial judge should not be interfered with on appeal except in cases in which it has not been judicially exercised” (p. 1465).

47                               This deferential standard is important.  If not adhered to, trial judges, out of an abundance of caution, are likely to embark upon many unnecessary hearings rather than risk vitiating an entire trial.  The trial court’s power to control the proceedings then becomes more illusory than real and, in the context of a Garofoli hearing, the very purpose of the leave requirement is defeated.

48                               I will now review the proceedings below.

5.         The Proceedings Below

49                               The appellants were charged with a number of drug-related offences.  In essence, the Crown alleged that they distributed cocaine to doormen and bartenders at various bars and clubs in downtown Vancouver.  The appellants were targeted by the police when Robert Molsberry, a self-admitted drug dealer and petty criminal who had been a doorman at a Vancouver club, complained to members of the Vancouver Police that the appellants and others were after him over unpaid drug debts and that he feared for his safety.  Molsberry agreed to “wear a wire” and act as police agent.  In return for his cooperation, he was given $1,000 by the Vancouver Police Department to satisfy the drug debt and promised a monthly stipend during the investigation, a cash payment at the conclusion of all proceedings, and entry into the witness protection program. 

50                               Based on their agreement with Molsberry, the police applied for a consent wiretap authorization under s. 184.2  of the Criminal Code .  This provision was enacted in response to this Court’s decision in Duarte and permits the interception of private communications with the consent of a participant under judicial authorization.  An application under this section may be made ex parte by a peace officer on the strength of an affidavit deposing to the following matters:

(a) that there are reasonable grounds to believe that an offence has been or will be committed;

(b) the particulars of the offence;

(c) the name of the person who has consented to the interception;

(d) the period for which the authorization is requested; and

(e) the particulars of any previously granted authorization, if any.

Detective Andrew Richards swore the required affidavit.  Its contents are central to the issue that occupies us and will be reviewed in detail later.  An authorization for the interception of private communications may be given if the judge to whom the application is made is satisfied that:

(a) there are reasonable grounds to believe that an offence has been or will be committed;

(b) either the originator or the intended recipient of the private communication has consented to the interception; and

(c) there are reasonable grounds to believe that information concerning the offence will be obtained by the interception.

Oppal J., as he then was, granted the authorization permitting the interception of the private communications of the appellants and other associates when any of them was speaking with Molsberry.

51                               At trial, Molsberry’s testimony formed a significant component of the prosecution’s case against the appellants.  The charges related to a period of time commencing prior to, and ending after, his involvement as a police agent.  His testimony about events during the time period he acted as a police agent was supplemented by the wiretapped conversations.  At the commencement of the trial, the appellants challenged the admissibility of the tapes of conversations intercepted pursuant to the s. 184.2  judicial authorization.  Without the tapes, Molsberry’s testimony about the conversations would still be admissible; however, it would stand on its own.

52                               The appellants argued at trial that s. 184.2  itself was unconstitutional; the trial judge rejected this argument and his ruling was not challenged on appeal. Alternatively, the appellants contended that the statutory preconditions for the authorization had not been met and, consequently, that Molsberry’s taping of their conversations violated their right under s. 8  of the Charter .  It is in support of this Charter  application that both appellants sought leave to cross-examine Detective Richards on his affidavit; Lising also sought leave to cross-examine the informant Molsberry.  The trial judge denied leave to cross-examine both the affiant and the informant and ultimately ruled the wiretap evidence to be admissible.  We are only concerned on this appeal with the trial judge’s refusal to grant leave to cross-examine Detective Richards on the voir dire.

53                               The contents of Detective Richards’ affidavit are important in relation to the ultimate determination of whether the trial judge erred in denying leave to cross-examine.  They are described in detail in the judgment of Newbury J.A. of the British Columbia Court of Appeal.  For convenience, I will repeat much the same description here.

54                               In general terms, Detective Richards’ affidavit explains how Molsberry came into contact with the Vancouver Police, provides a background regarding the informant, including his criminal history, sets out the information provided by Molsberry about the appellants and others, and describes actions taken by the police to determine Molsberry’s legitimacy as an informant.

55                               In particular, Molsberry informed the police that he began purchasing ounces of cocaine from Pires and Lising in January 1996 and that he, in turn, trafficked cocaine at the gram level.  In April 1996, Molsberry owed the appellants $500 as a result of a cocaine deal and he was unable to immediately pay this debt. Molsberry also informed the police how he became indebted to other persons associated with the appellants in respect of a marijuana grow operation.  He subsequently learned that the appellants and their associates intended to seriously assault him as punishment for not paying these drug debts.  On July 5, 1996, the appellants came to his apartment door, repeatedly kicking it and yelling threats at Molsberry. Fearing for his safety, Molsberry called the police.  The appellants were no longer at the scene when the police attended. Molsberry was arrested on outstanding warrants for driving while prohibited, failing to appear and obstructing a peace officer.  Molsberry later informed the police about the outstanding drug debt and his fear for his safety.  He subsequently agreed to act as a police agent regarding unlawful activities engaged in by a number of members or associates of the East End Chapter of the Hell’s Angels, including the two appellants. 

56                               The affidavit then described the follow-up investigation into Molsberry’s allegations.  Molsberry’s criminal background was confirmed.  He was subjected to a polygraph examination, the results of which were communicated to Detective Richards.  As I will later describe, this part of the affidavit is central to the appellant’s application to cross-examine Detective Richards.  The relevant part of the affidavit reads as follows:

11.  THAT on August 1, 1996, I was advised by Sgt. Peter FRASER of the Vancouver Police Department, Polygraph Section (hereinafter referred to as “Sgt. FRASER”), and verily believe, that on July 31, 1996, he conducted a polygraph examination of MOLSBERRY in relation to this police investigation. Sgt. FRASER informed me that as a result of the examination he verily believes, as do I, that to date MOLSBERRY has been completely truthful in his dealings with the police in this investigation.  [Emphasis added.]

Detective Richards also deposed to information received from Constable Dalstrom, who in turn received information from a confidential informant about unlawful activities engaged in by the appellants and others. The information received from the confidential informant included the fact that Pires assisted his brothers in cocaine trafficking and related activities, and acted as an enforcer to collect drug debts on behalf of his brothers.  The affidavit also referred to information received from two other confidential informants confirming some of the unlawful activities of other persons named by Molsberry.

57                               Detective Richards next deposed on further corroborative evidence.  On July 10, 1996, Detective Richards was present when Constable Dalstrom instructed Molsberry to place a call to Lising in order to re-establish contact with him. Molsberry placed the call and told Lising that he wanted to pay the outstanding debt.  Following the call, Molsberry informed Detective Richards that Lising was angry, that the debt had been increased to $1,000 and that he would be dead if the debt was not paid by July 15.  The police thereupon provided $1,000 in cash to Molsberry and members of the Vancouver Police Department observed Molsberry meet with Lising and Pires on July 17 and hand the cash to Lising.  They were subsequently informed by Molsberry that during the meeting, Lising offered to supply him with cocaine for $1,400 an ounce. Lising told Molsberry to contact him the following week. 

58                               Detective Richards provided further information about a meeting between Molsberry and one of the other associates.  As well, Molsberry told Detective Richards on July 29, 1996 that he had been assaulted by some of these associates two days previously.  Detective Richards observed that Molsberry had sustained serious facial injuries.

59                               Finally, the affidavit provided details about the agreement with Molsberry, his consent to the interception of his private communications, and the proposed strategy of the investigation.  Detective Richards deposed that based on all these facts, he had reasonable grounds to believe that the interception of communications with the appellants and others when they are communicating with Molsberry would provide information about certain specified narcotic offences.  Other details necessary to meet the requirements of s. 184.2  (not relevant to this appeal) were also provided.

60                               Much time was spent in argument before the trial judge on Lising’s application to cross-examine Molsberry on the voir dire, in aid of the appellants’ joint application to cross-examine Detective Richards.  Lising’s application to cross-examine Molsberry was based on counsel’s assertion that a number of unidentified persons had provided him with information about Molsberry’s general reputation for dishonesty, drug use and criminal activity.  These assertions did not give reason to embark on an evidentiary hearing.  There was no suggestion that the unidentified persons’ opinions were even known to the police.  Further, nothing in the proposed testimony would have contradicted Molsberry’s key allegations.  Therefore, the trial judge correctly refused this application and his ruling was not challenged before this Court.  As stated earlier, the only issue on this appeal concerns, rather, the application to cross-examine the deponent himself, Detective Richards.  I will therefore describe in more detail the basis advanced in support of that application.

61                               The appellants’ argument is entirely focussed on the above-quoted para. 11 of the affidavit.  For convenience, I repeat the impugned part of that paragraph:

11. . . . Sgt. FRASER informed me that as a result of the examination he verily believes, as do I, that to date MOLSBERRY has been completely truthful in his dealings with the police in this investigation.

The appellants argued before the trial judge that this statement was misleading because, as revealed by the polygraph material, Molsberry had been tested by polygraph only to determine whether he was a “double agent” and not to determine whether he had been “completely truthful in his dealings with the police in this investigation”.  (At one point the police had contemplated re-examining Molsberry by polygraph on a wider range of issues; however, they later decided against it because the effectiveness of polygraph testing diminishes on subjects who have already been exposed to testing.) The trial judge agreed with the appellants that this statement in para. 11 was misleading “to the extent” that it says that Sgt. Fraser’s belief in Molsberry’s complete truthfulness was based on the polygraph examination.  Moreover, the trial judge was of the view that the statement in para. 11 “appears to be calculated to mislead” because it seemed that it “was designed to lead to the inference that Detective Richards’ belief in the truthfulness of Molsberry was supported by the result of the polygraph test”.  The appellants submit that, based on  these findings, the trial judge ought to have permitted cross-examination of Detective Richards.  However, rather than granting such leave, the trial judge decided for review purposes  to disregard the evidence in para. 11.  Based on what remained in the affidavit, the trial judge was satisfied that the authorizing judge could have granted the authorization.  He therefore dismissed the appellants’ application for leave to cross-examine Detective Richards.

62                               The British Columbia Court of Appeal unanimously upheld the trial judge’s ruling, concluding that leave to cross-examine was properly denied, each judge expressing in separate concurring reasons his or her basis for arriving at this conclusion.  As before this Court, the focus was on para. 11.  Two of the appellate judges, Finch C.J.B.C. and Newbury J.A., expressly questioned the basis for the trial judge’s statement that part of para. 11 was “calculated to mislead”.  (Southin J.A. did not express any view on this point as it was irrelevant to her analysis.)  On their review of the record, they each concluded that the trial judge could not have meant that Detective Richards deliberately attempted to mislead the authorizing judge.  Rather, as Finch C.J.B.C. held, the word “calculated” “cannot be meant to attribute a dishonest intention . . . but rather, must be taken to mean fitted, suited or apt for the purpose” (para. 81).  Each judge concluded that the threshold test had not been met and that the trial judge was correct in denying leave.

63                               It is quite understandable why the discussion on appeal is focussed on the words “calculated to mislead”.  Indeed, if there is a reasonable basis for believing that an affiant deliberately attempted to mislead the authorizing judge, this would generally  warrant further inquiry by cross-examination because the credibility of the entire affidavit may be brought into question.  However, here, as in all cases, the trial judge’s words have to be considered in the context of the evidence on the voir dire and his ruling as a whole.  This is the approach taken by the judges of the British Columbia Court of Appeal.  Based on their review, they found no support for the conclusion that Detective Richards, by para. 11 of his affidavit, was attempting to mislead the authorizing judge.  Further, when the ruling is considered as a whole, it is quite clear that the trial judge was of the view that cross-examination would not advance the inquiry and that, regardless of any statement about the polygraph test, there was ample basis to grant the authorization and no reason to set it aside.  The British Columbia Court of Appeal saw no reason to interfere with that decision.

64                               I agree with the conclusion reached by the Court of Appeal. Having reviewed the record, I too question why the trial judge, in the course of his oral ruling, described as he did the statement about the polygraph test in para. 11 of the affidavit.  Perhaps he was merely being responsive to counsel’s submissions.  Based on the record, it is difficult to understand why it would be misleading to suggest that the results of the polygraph examination formed part of the basis for Detective Richards’ belief in Molsberry’s truthfulness.  If the polygraph results had demonstrated that Molsberry was lying and Detective Richards made the same statement, of course, it would clearly be misleading.  But the polygraph examiner concluded that Molsberry was truthful when he answered “no” to the following three questions:

1.    Regarding this police investigation, have you discussed your status with the target organization?

2.    Regarding this police investigation have you in any manner, falsely represented yourself to the police?

3.    Regarding this police investigation, are you attempting to be an agent for both sides?

Quite apart from the inherent limitations of polygraph testing, I fail to see how these results would do anything but lend support to Detective Richards’ belief in Molsberry’s truthfulness.  While the testing appeared limited in scope to the issue of whether Molsberry was a double agent, in the context of the investigation this was a very relevant consideration.  The polygraph examination was conducted on July 31, 1996, about three weeks after Molsberry first gave information to the Vancouver police about the appellants and certain other individuals.  As noted earlier, the investigation had progressed in the intervening period.  Most significant was the observed encounter between Molsberry and the two appellants when he handed Lising $1,000 in payment of the alleged drug debt.  Unless Molsberry was in cahoots with the appellants and this  was staged, this encounter constituted significant corroboration of his story.  Hence, the subsequent confirmation by the polygraph examiner that Molsberry was not a double agent would logically lend further support to Detective Richards’ belief that Molsberry was being truthful.

65                               I also agree with the Court of Appeal that the trial judge was correct in refusing leave to cross-examine Detective Richards.  In my view, there was no reasonable likelihood that cross-examination on the impugned statement in para. 11 would elicit evidence of any probative value to the issue for consideration on a review of the authorization.  The material issue for consideration on the voir dire is whether, at the time of granting the authorization, there existed reasonable grounds to believe that:  (a) an offence was or will be committed and (b) information concerning the offence will be obtained by the proposed interception.  Detective Richards is not the source of the information that was advanced to establish the reasonable grounds; Molsberry was.  There is no contention that the information provided by Molsberry, if reasonably credible, is insufficient to establish the requisite grounds.  Hence, the determinative issue becomes the grounds for believing that Molsberry was a reliable informant.

66                                Detective Richards’ personal belief, if any, in Molsberry’s truthfulness is immaterial.  Section 184.2  of the Criminal Code  does not require that the affiant, or any other peace officer, have a subjective belief in the information advanced in support of the requisite reasonable grounds.  (This may be contrasted, for example, with s. 254(3)  of the Criminal Code  where a peace officer must subjectively believe on objective grounds that a suspect is committing, or in the preceding two — now three — hours has committed, a drinking and driving offence before a request may be made for a breath sample:  R. v. Bernshaw, [1995] 1 S.C.R. 254.)  The only requirement is that there exist, on an objective basis, reasonable grounds to believe that an offence has been or will be committed and that evidence about the offence will be obtained by means of the proposed interception.  The reasonable grounds are often set out, as in this case, by an affiant who swears as to his or her belief in the existence of reasonable grounds and then explains on what facts it is based.  The authorizing judge is then in a position to consider the facts and independently decide whether reasonable grounds have been made out.  It is in the context of setting out the factual basis for his belief in the existence of reasonable grounds that Detective Richards related in para. 11 the information provided to him by Sgt. Fraser about the polygraph test.

67                               Regardless of the inherent limitations of polygraph testing, the polygraph results were relevant to the material issue — it formed part of the grounds advanced for believing that Molsberry was a reliable informant.  However, there was no need to cross-examine Detective Richards to find out more about the polygraph test.  The polygraph results, including the transcript of the pre-test examination, were disclosed to the defence and were put before the reviewing judge for his consideration.  There was no reasonable likelihood that cross-examination of Detective Richards on the information he received about the polygraph results would elucidate anything further of any probative value.  Cross-examination of Detective Richards on his para. 11, at best, could only serve to elucidate with greater precision the extent to which the information received by him from the polygraph examiner figured in his own assessment of Molsberry’s credibility at that point in time in the investigation.  Further, and more importantly, the basis for obtaining an authorization — the grounds for believing that the appellants trafficked in cocaine and Molsberry’s consent to be intercepted — was not in any way impugned by the information on which the appellants claimed the need for an evidentiary hearing.

68                               The appellants contend however that the impugned statement brought Detective Richards’ own credibility into question and that cross-examination was necessary to explore this further.  There is no doubt that the affiant’s own credibility may be material on a Garofoli hearing.  Indeed, if the officer reported a certain result in the face of a contrary conclusion by the polygraph examiner, one would hope that cross-examination would be permitted.  However, as the material reveals in this case, the proposed cross-examination, at best, could reveal that Detective Richards  overstated the potential value of the polygraph results.  On this point, I agree with the following opinion expressed by Finch C.J.B.C.:

In my view, the appellants have not met this threshold.  At most, the appellants have shown a basis to believe that cross-examination will elicit testimony that tends to discredit Detective Richards’ credibility on the peripheral matter of the polygraph examination results.  This, however, is insufficient.  The appellants have not shown any basis to conclude that cross-examination will tend to impugn Detective Richards’ credibility on any of the statements in his affidavit that form the essential basis for issuing the authorization.  Nor does the misleading statement in ¶ 11 create any reasonable possibility that cross-examination of Detective Richards would elicit testimony that casts so much doubt on his credibility that the reliability of his entire affidavit would be tainted.  Accordingly, and unlike Garofoli, supra, the misleading statement in ¶ 11 does not go to the foundation of the authorization.  It is, rather, as in Vukelich, supra, unrelated to “the essence of the case”. [para. 83]

69                               Although the likely effect of the proposed cross-examination must be assessed in light of the affidavit as a whole, I also agree with Finch C.J.B.C. that the threshold test for determining whether cross-examination should be allowed is separate and distinct from the ultimate question of whether the authorization is valid.  Hence, in determining whether the threshold test has been met, the trial judge cannot decide the question simply on the basis that other parts of the affidavit would support the authorization.  The focus, rather, must be on the likely effect of the proposed cross-examination and on whether there is a reasonable likelihood that it will undermine the basis of the authorization.  If the test is met, it is only at the conclusion of the voir dire that the trial judge will determine whether, on the basis of the amplified record, there still remains a basis for the authorization.  However, the trial judge’s apparent collapse of the two tests is of no moment in this case. Having correctly refused leave to cross-examine, the next step was to determine the authorization’s validity on the basis of the material before him. The fact that he proceeded to do so without considering para. 11 is of no consequence to the appellants. I therefore see no reason to interfere with the trial judge’s ruling.

6.         Disposition

70                               For these reasons, I would dismiss the appeals.

Appeals dismissed.

Solicitors for the appellant Pires:  Kenneth S. Westlake; Peck and Company, Vancouver.

Solicitor for the appellant Lising:  Gregory P. DelBigio, Vancouver.

Solicitor for the respondent:  Attorney General of Canada, Vancouver.

Solicitor for the intervener the Attorney General of Ontario:  Attorney General of Ontario, Toronto.

Solicitor for the intervener the Attorney General of British Columbia:  Attorney General of British Columbia, Victoria.

Solicitors for the intervener the Criminal Lawyers’ Association (Ontario):  Sack Goldblatt Mitchell, Toronto.