Re: the United States of America and Barbarash

Re: the United States of America and Barbarash

Leave to cross-examine the affiant was granted because the accused demonstrated a basis that cross-examination may elicit testimony tending to discredit one of the pre-conditions for authorization (reasonable and probable grounds) by challenging identification, the alleged spokesperson role and the reliability of the newspaper source; cross-examination was limited to those matters and to the affiant's subjective belief, consistent with the Garofoli standard.

Citation
2002 BCSC 1430
Parties
Applicant/respondent: The United States of America; Respondent/applicant: David Barbarash
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
10 October 2002
Procedural Posture
Mutual Legal Assistance Application Under the Mutual Legal Assistance in Criminal Matters Act; Application to Quash Search Warrant / Pre Trial Application for Leave to Cross Examine Affiant and to Quash Search Warrant; Interlocutory Ruling Granting Limited Cross Examination
Outcome
Interlocutory order granting limited leave to cross-examine the affiant; no quashing of the search warrant at this stage
Legal Topics
Search Warrant, Reasonable and Probable Grounds, Cross Examination of Affiant, Section 15 MLACMA, Charter S.8, Disclosure and Informant Reliability
Source Language
English
Criminal Procedure Constitutional Law Mutual Legal Assistance Evidence Law Search Warrant Reasonable and Probable Grounds Cross Examination of Affiant Section 15 MLACMA +2 more

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Parties

The United States of America

Applicant/respondent

David Barbarash

Respondent/applicant

Procedural Posture

Mutual Legal Assistance Application Under the Mutual Legal Assistance in Criminal Matters Act; Application to Quash Search Warrant / Pre Trial Application for Leave to Cross Examine Affiant and to Quash Search Warrant; Interlocutory Ruling Granting Limited Cross Examination

Legal Issues

  1. 1 Whether the accused is entitled to leave to cross-examine the affiant to the Information to Obtain the search warrant
  2. 2 Whether the search warrant was issued without reasonable and probable grounds and should be quashed
  3. 3 Whether the Charter s.8 applies to MLACMA proceedings and affects review of the authorizing judge

Ratio Decidendi

Leave to cross-examine the affiant was granted because the accused demonstrated a basis that cross-examination may elicit testimony tending to discredit one of the pre-conditions for authorization (reasonable and probable grounds) by challenging identification, the alleged spokesperson role and the reliability of the newspaper source; cross-examination was limited to those matters and to the affiant's subjective belief, consistent with the Garofoli standard.

Court Disposition

Interlocutory order granting limited leave to cross-examine the affiant; no quashing of the search warrant at this stage

Orders

  • Leave granted to cross-examine Corporal Derrick Ross (the affiant) limited to: (1) how David Barbarash is identified as the person referred to in the Maine newspaper article; (2) the basis for alleging Barbarash is a spokesperson and transmitter for the Animal Liberation Front and whether that remains true; (3) why...