R. v. Pires; R. v. Lising

R. v. Pires; R. v. Lising
Collection
Supreme Court Judgments
Date
2005-11-17
Neutral citation
2005 SCC 66
Report
[2005] 3 SCR 343
Case number
30151, 30240
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise
On appeal from
British Columbia
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 30151, 30240
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343, 2005 SCC 66
Date: 20051117
Docket: 30151, 30240
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 fr