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.
Reasons for
Judgment:
(paras. 1 to 70)
|
Charron J. (McLachlin C.J. and
Bastarache, Binnie, Deschamps, Fish and Abella JJ. concurring)
|
______________________________
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.