R. v. Huber

2004 BCSC 1292 R. v. Huber IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Huber, 2004 BCSC 1292 Date: 20041006 Docket: 45248-5 Registry: Kelowna Regina against Eric Emerson Huber Before: The Honourable Mr. Justice Ehrcke Reasons for Judgment Counsel for the Crown V. Hartney B. Smith Counsel for the Accused O. Butterfield Date and Place of Hearing: September 22 - 23, 2004 Kelowna, B.C. [1] The accused challenges the validity of two authorizations to intercept private communications, one issued by the Honourable Madam Justice Smith on November 28, 1997 and the second by the Honourable Mr. Justice Paris on February 4, 1998, pursuant to s. 184.2 of the Criminal Code. In furtherance of this application, the accused asks that a voir dire be declared and that he be permitted to cross-examine four witnesses, namely: Constable Gary White, who was the affiant in both applications; Michael Farrell, who supplied information to the police; Michael Dirk, Crown Counsel, whom the accused says assisted in the preparation of the application for the November 28, 1997 authorization; and Grant Hardwick, Crown Counsel, whom the accused says assisted in the application for the February 4, 1998 authorization. [2] Crown Counsel takes the position that a voir dire is unnecessary and that the accused should not be given leave to cross-examine any of the proposed witnesses. The Crown relies particularly on two cases, R. v. Vukelich (1996), 108 C.C.C. (3d) 193 (B.C.C.A.) and R. v. Pires (2004), 183 C.C.C. (3d) 232 (B.C.C.A.). [3] Vukelich was a case involving an application to exclude evidence seized in a search pursuant to a search warrant that the accused contended was invalid. At para. 25, McEachern C.J.B.C., quoted these words of Esson J.A. in R. v. Hamill (1984), 14 C.C.C. (3d) 338 (B.C.C.A.) at p. 367: In those cases where the accused does apply to exclude the evidence, it will be for the trial judge to decide what procedure should be followed but, at the least, counsel for the accused should be required to state with reasonable particularity the ground upon which the application for exclusion is made. That much is essential for an orderly trial of the issue. It follows that, if the statement of grounds does not disclose a basis upon which the court could make an order excluding the evidence, the application may be dismissed without hearing evidence. [4] McEachern C.J.B.C. then went on to reaffirm that an accused making an application to exclude evidence under ss. 8 and 24 of the Canadian Charter of Rights and Freedoms is not always entitled to have the issue determined on a voir dire; the trial judge must determine the appropriate process. He said at para. 26: Based on these authorities, it does not follow that an accused is always entitled as of right to a voir dire in the course of a criminal trial in order to challenge the constitutionality of a search. The trial judge must control the course of the proceedings, and he or she need not embark upon an enquiry that will not assist the proper trial of the real issues. I reach that conclusion because it is clear from cases such as Grant and Garofoli that a warrant remains valid if there is enough left in the supporting affidavit to support the issuance of the warrant after all the impugned portions are deleted. In other words, the trial judge does not revisit the application for the warrant ab initio in the light of subsequent information, but rather considers whether, as stated in Garofoli at 1452, " ... there continues to be any basis for the decision of the authorizing judge" to issue the warrant. [5] On the facts in that case McEachern C.J.B.C. concluded that the trial judge did not err in declining to declare a voir dire and in declining to permit cross-examination of the deponent of the affidavit in support of the search warrant. [6] McEachern C.J.B.C. went on to observe that the result may be different when the accused alleges that a peace officer swearing an affidavit in support of a warrant has deliberately made false and misleading statements. He wrote at para. 30: This leaves for consideration the question of whether the result must be different when the accused alleges that the affidavit in support of the warrant is deliberately false and misleading as alleged in associate counsel's affidavit. I have no doubt that, in almost all cases, such circumstances, if related to the essence of the case, would ordinarily persuade a trial judge to direct a voir dire, and probably to provide an appropriate Charter remedy: see R. v. Sismey and R. v. Dellapenna, supra. In this case, however, the allegations of falsity were argumentative and conclusory without comparison with the disclosure evidence, and the alleged falsities were not related to the issue of conspiracy. That was not the case in either Sismey or Dellapenna where, without the impugned passages, there would be no basis for a warrant at all. [7] In the present case the accused does not allege that Constable White made deliberately false statements in his affidavits. Rather, he contends that Constable White may have been negligent in failing to make sufficient inquiries to ascertain the reliability and truthfulness of the police informant, Michael Farrell. [8] The Supreme Court of Canada has made it clear that on an application to exclude evidence, an accused will not always have the right to cross-examine. Leave must be obtained from the court. The principles governing the exercise of the trial judge's discretion whether to grant leave to cross-examine are set out in R. v. Garofoli (1990), 60 C.C.C. (3d) 161 (S.C.C.) at p. 198: 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 pre-conditions 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. 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. [9] Garofoli was a case involving a wiretap authorization under what is now s. 185 of the Criminal Code. The present case is somewhat different in that the authorizations here were granted not under that section, but rather under s. 184.2. These are interceptions made with the consent of one of the parties, and the test for granting such authorizations is somewhat different. Most notably, in an application under s. 184.2, there is no necessity to show that other investigative procedures have been tried and failed and no necessity to show that other investigative procedures are unlikely to succeed. [10] Like the present case, R. v. Pires, supra, also involved an application to set aside a one-party consent authorization. In that case there were three concurring judgments. Madam Justice Newbury observed at para. 28 that "the onus is on the accused to show why he or she should be permitted to cross-examine or lead other evidence on a voir dire for the purpose of attacking an authorization or search warrant." Referring to the Supreme Court's judgment in Garofoli, she set out the test at para. 31: Sopinka J. also made it clear, in the passage quoted at the outset of these reasons, that a basis must be shown for the view that cross-examination will elicit testimony tending to discredit not the credibility of the informant or deponent, but the existence of one of the preconditions to the issuance of the authorization. He stated that the granting of leave is best left to the discretion of the trial judge, who is aware of how the dynamics of the various Charter principles and other relevant factors are playing out in the trial before him or her. To quantify or qualify the "basis" that must be shown would in my view unduly restrict this discretion and would imply that the granting or refusal of an application to cross-examine is or can be more precise than it is. [11] In his concurring judgment, Finch C.J.B.C. wrote at para. 78: I conclude therefore that in order to meet the test established in Garofoli, on the request for cross-examination, there must be a basis for believing that there is a reasonable likelihood of eliciting evidence which strikes at the foundation of the authorization. I consider that conclusion to be consistent with the reasoning and the conclusion in Garofoli, and not to be inconsistent with any subsequent decision of this court or of the Supreme Court of Canada. In R. v. Vukelich (1996), 108 C.C.C. (3d) 193, 78 B.C.A.C. 113, para. 30, for example, McEachern C.J.B.C. suggested that a voir dire would ordinarily be ordered, and cross-examination presumably permitted, where counsel shows a reasonable likelihood that an information contains a deliberately false or misleading statement, but only if that statement is "related to the essence of the case". [12] Finally, in her concurring judgment, Southin J.A. wrote at para. 97: To sum up, therefore, except in the most extraordinary of circumstances, I see no reason at all for cross-examination on an affidavit leading to an authorization under s. 184.2. [13] As previously noted, in the present case the accused does not allege that Constable White made deliberately false statements in his two applications for authorizations under s. 184.2. The allegation is simply that he did not take the steps he should have taken to verify Michael Farrell's reliability. It is in relation to that issue that he wishes to cross-examine the Constable. In my view, based on Garofoli, he should be permitted to cross-examine Constable White, but the cross-examination will be limited to the issue of what steps the Constable took to ascertain the informant's truthfulness. [14] While I therefore declare a voir dire and grant leave for cross-examination of Constable White, I do not grant leave for the cross-examination of Michael Farrell, Michael Dirk, or Grant Hardwick. In the case of the latter two witnesses, the accused has not demonstrated any basis for calling them on the voir dire. With respect to Michael Farrell, it must be kept in mind that the issue on the voir dire is not Farrell's truthfulness, but rather whether the evidence presented to the authorizing judges was sufficient to support the granting of the authorizations. As Newbury J.A. noted at paras. 32 - 34 of R. v. Pires: In Mr. DelBigio's submission, the deponent was required, as a precondition to demonstrating that "there are reasonable grounds to believe that an offence . . . has been or will be committed", to satisfy the authorizing judge that the informant (or more properly in this case, the agent) was "reliable". I believe this argument misstates the purpose of the affidavit sworn in support of an application under s. 184.2. In many cases of this kind, the informant or agent will be a person of questionable character who is involved in the very operations which are the subject of the proposed investigation. That was certainly the case with Mr. Molsberry. It is well for the police to maintain a skeptical attitude with respect to information supplied by such persons, and the case law requires that they do so. Thus evidence of a tip from an informer by itself is generally insufficient to establish reasonable and probable grounds. All the circumstances, including the degree of detail of the information proffered, past experience of the police with the informer, and other objective circumstances tending to corroborate or not to corroborate the information must be looked at: see R. v. Greffe, [1990] 1 S.C.R. 755, 55 C.C.C. (3d) 161. In the case at bar, the affidavit set out not only the information received by the police from Mr. Molsberry, but also information received from three other informants, some corroborative evidence obtained from police surveillance, and the other circumstances reviewed by Smith J. at paras. 24-33 of his ruling. As the earlier discussion of Garofoli makes clear, it was not for the authorizing judge to decide whether he believed Mr. Molsberry was a truthful person or was telling the truth on this occasion -- that determination was for the jury on the evidence adduced at trial. The question at this stage was whether on the evidence before him, the requirements of s. 184.2 had been met. Thus I cannot agree that the trial judge erred at para. 9 of his ruling as the appellants contend. [15] In the present case, the accused has the benefit of a transcript of the evidence that Mr. Farrell gave at the first trial. He has invited me to consider this evidence on the voir dire and I will do so. What he has not established is that there is a basis for calling Michael Farrell for cross-examination on the voir dire. [16] To summarize, there will be a voir dire to determine whether the authorizations granted under s. 184.2 of the Criminal Code on November 28, 1997 and February 4, 1998, should be set aside and whether the tape recordings made pursuant to those authorizations constitute an unreasonable search and seizure under s. 8 of the Charter and should be excluded from evidence under s. 24(2). The accused is granted leave to cross-examine Constable Gary White, the affiant in both applications, but that cross-examination shall be limited to questions directed to establishing that there was no basis upon which the authorizations could have been granted. The accused has not established the relevance of cross-examination of Michael Farrell, Michael Dirk, or Grant Hardwick, and leave to cross-examine those witnesses is refused. "W.F. Ehrcke, J." The Honourable Mr. Justice W.F. Ehrcke