R. v. Russell

R. v. Russell

The court held that an applicant challenging the constitutional validity of a wiretap authorization is not restricted to adducing evidence solely by cross-examining the affiant; once the Vukelich threshold for a voir dire is met the applicant may lead extrinsic evidence that is relevant to the Garofoli review, and...

Source-derived case information.

Citation
2012 BCSC 1438
Parties
Crown: Regina; Accused: Daniel Ronald Russell; Accused: Yong Sung John Lee; Accused: Dilun Heng; Accused: Barzan Tilli-Choli; Accused: Karwan Ahmet Saed; Accused: Ion Kroitoru also known as John William Croitoru
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
27 September 2012
Procedural Posture
Criminal Challenge to Wiretap Authorization / Voir Dire (garofoli Review) Pre Trial Authorization Challenge
Outcome
Application successful in part: court ruled applicant is not restricted to cross-examining the affiant and admitted the affidavit of the defence assistant and attached disclosure documents for the voir dire; scope and weight to be determined at the voir dire
Legal Topics
Section 8 Charter, Wiretap Authorization, Garofoli Hearing, Cross Examination of Affiant, Disclosure, Hearsay Admissibility
Source Language
english
Criminal Law Constitutional Law Evidence Search and Seizure Electronic Surveillance Section 8 Charter Wiretap Authorization Garofoli Hearing +3 more

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Parties

Regina

Crown

Daniel Ronald Russell

Accused

Yong Sung John Lee

Accused

Dilun Heng

Accused

Barzan Tilli-Choli

Accused

Karwan Ahmet Saed

Accused

Ion Kroitoru also known as John William Croitoru

Accused

Procedural Posture

Criminal Challenge to Wiretap Authorization / Voir Dire (garofoli Review) Pre Trial Authorization Challenge

Legal Issues

  1. 1 Whether an applicant challenging a wiretap authorization is restricted to introducing evidence only through cross-examination of the affiant
  2. 2 Whether disclosure documents can be admitted to show the state of the investigation and thus support a sub-facial challenge to the authorization
  3. 3 Whether extrinsic evidence may be led once the Vukelich threshold for a voir dire is met

Ratio Decidendi

The court held that an applicant challenging the constitutional validity of a wiretap authorization is not restricted to adducing evidence solely by cross-examining the affiant; once the Vukelich threshold for a voir dire is met the applicant may lead extrinsic evidence that is relevant to the Garofoli review, and disclosure documents admitted to show the state of the investigation (not for their truth) are admissible if authenticated and relevant; cross-examination of the affiant remains a discretionary tool but is not the exclusive route to discharge the applicant's burden.

Court Disposition

Application successful in part: court ruled applicant is not restricted to cross-examining the affiant and admitted the affidavit of the defence assistant and attached disclosure documents for the voir dire; scope and weight to be determined at the voir dire

Orders

  • Applicant is not restricted to introducing evidence only through cross-examination of the affiant
  • Affidavit of Colleen Elden and attached Crown disclosure documents admitted into evidence for the voir dire