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| Patrick Ducharme |
Defence counsel may wish to cross-examine the affiant on the affidavit used to support an application either for wiretaps or search warrants ( the Information to Obtain or “the ITO”). The ability to cross-examine on this affidavit is not as of right, but instead must be ordered by the court. The Supreme Court of Canada in Garofoli1 established the parameters as to when such cross-examinations will be permitted. The test is the same whether it is in relation to a search warrant or a wiretap.
The court in Garofoli observed that previously courts had required an applicant to produce prima facie proof of fraud in order to be granted leave to cross-examine. The court held that this was too high a standard because an applicant would frequently be in the position where he/she have to prove fraud before cross-examination was permitted, but could only prove fraud once the cross-examination of the affiant had taken place. Consequently, the court relaxed the test for leave to cross-examine creating a new, lower standard.
Leave must be obtained to cross-examine. The granting of leave is in 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. The accused is required to convince the trial Judge that cross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization, such as, the existence of reasonable and probable grounds.
The Supreme Court of Canada re-visited the Garofoli test in Pires and Lising. The court wrote:
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 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-examine 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….
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 section 8 challenge is initiated, the proceedings remain focused and on track…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.4
The threshold for permitting cross-examination is low and distinct from the issue of whether the warrant/wiretap authorization will ultimately be quashed. The Court of Appeal for Ontario in Ebanks5 was sharply critical of a trial Judge who had, in their opinion, unfairly criticized the affiant by importing elements of intent or purposefulness or elements of incompetence or disrespect for the court in his conduct without even hearing his evidence. Implicit in the decision is a serious criticism of a trial Judge in making a number of significant adverse findings without the benefit of hearing the affiant’s testimony or giving him the opportunity to dispute the serious allegations that had been made by the applicants.
The law in relation to obtaining leave to cross-examine an affiant in a search warrant or wiretap context is summarized as follows:
(a) Cross-examination of the wiretap/search warrant affiant is not automatic and requires leave;
(b) The test for leave to cross-examine is established in Garofoli and is a low threshold;
(c) The Supreme Court of Canada in Pires held the test requires that the applicant must show “a reasonable likelihood” that the cross-examination will elicit testimony that will undermine the issuance of authorization or warrant;
(d) The proposed cross-examination must be relevant and material to an issue that is capable of undermining the issuance of authorization or warrant in order to avoid prolixity;
(e) If there is a reasonable basis for believing that an affiant deliberately attempted to mislead the authorizing Judge, cross-examination will generally be permitted since such a finding alone is capable of setting aside the authorization or warrant; and
(f) The test for leave to cross-examine applies equally to sub-affiants where the sub-affiant is a major source of information that reduces the actual affiant to a “straw-person” or mere “writer” of the affidavit.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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