R. v. Cater

R. v. Cater

The court refused to summarily dismiss the Garofoli application because a substantive review of the Affidavit was already required; the judge denied leave to cross-examine the affiant because defence had not shown a reasonable likelihood that cross-examination would assist the narrow Garofoli inquiry into whether the authorizing justice could have granted the authorization, and the review can be conducted on the affidavit material without affiant testimony.

Citation
2011 NSPC 100
Parties
Crown: Her Majesty The Queen; Accused: Kyle Cater; Accused: Paul Cater; Accused: Torina Lewis
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
21 November 2011
Procedural Posture
Criminal (charter S.8 Challenge to Part VI Interception; Garofoli Review) / Pre Trial — Crown Summary Dismissal Application and Defence Garofoli Application; Reviewing Judge to Conduct Garofoli Review
Outcome
Crown summary dismissal application denied; Garofoli review will proceed; defence application for leave to cross-examine the affiant denied.
Legal Topics
Garofoli Application, Part VI Interception, Authorization for Interception, Cross Examination of Affiant, Charter S.8, Section 24(2) Exclusion, Stinchcombe Disclosure
Source Language
English
Criminal Law Constitutional Law Evidence Search and Seizure Garofoli Application Part VI Interception Authorization for Interception Cross Examination of Affiant +3 more

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Parties

Her Majesty The Queen

Crown

Kyle Cater

Accused

Paul Cater

Accused

Torina Lewis

Accused

Procedural Posture

Criminal (charter S.8 Challenge to Part VI Interception; Garofoli Review) / Pre Trial — Crown Summary Dismissal Application and Defence Garofoli Application; Reviewing Judge to Conduct Garofoli Review

Legal Issues

  1. 1 Whether the Crown's summary dismissal of the Garofoli application is appropriate
  2. 2 Whether the accused should be granted leave to cross-examine the affiant to the Information to Obtain
  3. 3 Whether the Affidavit contained unreliable or misleading source information or material omissions that would vitiate the authorization

Ratio Decidendi

The court refused to summarily dismiss the Garofoli application because a substantive review of the Affidavit was already required; the judge denied leave to cross-examine the affiant because defence had not shown a reasonable likelihood that cross-examination would assist the narrow Garofoli inquiry into whether the authorizing justice could have granted the authorization, and the review can be conducted on the affidavit material without affiant testimony.

Court Disposition

Crown summary dismissal application denied; Garofoli review will proceed; defence application for leave to cross-examine the affiant denied.

Orders

  • Crown application for summary dismissal of the Garofoli motion is dismissed
  • Defence application for leave to cross-examine the affiant (Cpl. Jadie Spence) is denied