R. v. Edwardsen

2015 BCSC 1660 R. v. Edwardsen

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Edwardsen, 2015 BCSC 1660 Date: 20150814 Docket: 30870-2 Registry: Terrace Regina v. David Harry Edwardsen Before: The Honourable Mr. Justice Punnett Oral Reasons for Judgment on Application to Cross-Examine Affiant Counsel for the Crown: J.N. Walker A.M. Switzer Counsel for the Defence: K.S. Westlake, Q.C. D.J. Song Place and Date of Hearing: Terrace, B.C. August 11, 12 & 14, 2015 Place and Date of Judgment: Terrace, B.C. August 14, 2015 Introduction [1] On September 19, 2012 police executed five search warrants pertaining to the accused's primary residence and other locations. The omnibus information to obtain ("ITO") used to acquire those warrants included information furnished to police by a number of confidential informants. [2] The accused now applies to cross-examine the affiant of the ITO, RCMP Cst. Michael Etele, pursuant to R. v. Garofoli, [1990] 2 S.C.R.

1421. Cross-examination is sought in relation to an intended challenge to the validity of a warrant permitting police to install a tracking device on a truck associated with Mr. Edwardsen. The Crown opposes the application. [3] The background to this matter is found in reasons for judgment indexed as R. v. Edwardsen, 2015 BCSC 705. Those reasons relate to an earlier defence application for disclosure of source debriefing reports and source handler notes (the "Source Materials") pertaining to informants whose information Cst. Etele relied upon in the ITO. Certain of the proposed grounds for cross-examination relate to alleged discrepancies between the information related by Cst. Etele in the ITO and the information contained in the foundational Source Materials disclosed by the Crown. [4] I have concluded that leave to cross-examine the affiant is granted for, and in accordance with, these reasons, subject to the limits of informer privilege. Position of the Defence [5] The accused takes the position that cross-examination of Cst. Etele will elicit testimony of probative value to the issues for consideration by the reviewing judge, citing R. v. Pires; R. v. Lising, 2005 SCC 66, at para. 40. [6] According to the defence, the primary issues regarding the validity of the warrant under challenge involve the credibility of the affiant, and the question of whether his actions might be

viewed as sufficiently subversive to justify setting aside the authorization. Secondarily, the defence says that false or misleading information must be excised from the ITO, with the result that there may be insufficient grounds remaining to uphold the authorization. Position of the Crown [7] The Crown opposes the application to cross-examine, submitting that the defence has failed to establish any basis to grant the leave sought. The Crown says that the defence has not made out the required evidentiary foundation, that cross-examination should not be permitted where arguments can be made and conclusions drawn from the statements in the affidavit, and that cross-examination in any event would violate informer privilege. [8] In support of its position, the Crown filed an affidavit sworn by Staff Sgt. John Gordon Cater, the RCMP officer in charge of the Human Source Unit for the province of British Columbia. In his affidavit Staff Sgt. Cater described how police officers obtain, manage and control intelligence received from confidential informants. He also explained the nature and purpose of the differing types of source materials. Staff Sgt. Cater also emphasized the importance of informer privilege in ensuring that the RCMP are able to rely on informant information to achieve essential law enforcement objectives and the difficulty of vetting source materials in order to

protect the privilege. Law [9] I must be satisfied that cross-examination of the affiant is necessary to enable the accused to make full answer and defence. The right to cross-examine is not absolute, leave is required. The accused has the burden, albeit not a heavy one, to show that cross-examination may produce evidence that will discredit one or more of the pre-conditions for the issuance of the warrant (Garofoli, at paras. 88-89). [10] That is, the accused must show that cross-examination will elicit testimony of probative value as grounded in the two principles of evidence, relevance and materiality. This approach to permitting cross-examination attempts to address concerns respecting the prolixity of proceedings and, as in this case, the need to protect the identities of informants: Pires, at para. 3. [11] In determining whether to grant leave to cross-examine an affiant, it is important to avoid conflating this threshold analysis with the ultimate question of the validity of the warrant. To obtain leave, the accused does not need to show that cross-examination will be successful in discrediting one of the pre-conditions to the authorization, but rather only a reasonable likelihood that it will "assist the court" in determining a material issue: Pires, at para.

40. Thus, the threshold question of whether to grant leave to cross-examine cannot be resolved merely as a result of the finding that other information in the ITO would support the issuance of the warrant: Pires, at para. 69. [12] The Crown relies on R. v. Camara, 2005 BCCA 639, for the proposition that cross-examination should be denied in circumstances where the sheer volume and compelling nature of the information in the ITO is such that, even if the cross-examination met with success, there would still be no basis for rejecting the validity of the authorization. Specifically, the Crown relies on the following: [32] In my opinion, if the trial judge had allowed further cross-examination and if such cross-examination had met with some success, there would still have been no basis for rejecting the validity of the authorization. The sheer volume of information in the affidavit from a large number of sources concerning activity over a lengthy period of time, all pointing to cocaine trafficking, was compelling. It is most unlikely that the points of attack suggested by the appellants would produce evidence that would undermine the integrity of the affidavit. [Emphasis added.] [13] In my view, the Crown's argued application of Camara conflicts with Pires, specifically Charron J.'s holding, for a unanimous Supreme Court of Canada, that "in determining whether the threshold test

has been met, the trial judge cannot decide the question simply on the basis that other parts of the affidavit would support the authorization" (para. 69). [14] In light of Pires, I do not accept the Crown's interpretation of Camara. In any event, the statement in Camara must be viewed in light of the context in which it appears. The accused in that case had already cross-examined the affiant in question at a previous trial (Camara, at para. 12). The sole ground for cross-examination hinged on an adverse credibility finding concerning the affiant made at the first trial (para. 29). In my view, the Court of Appeal did not intend to establish the principle that cross-examination pursuant to Garofoli must be denied if the information in the ITO is overwhelming. Rather, the Court merely held that the strength of the ITO is a factor to be considered, on appeal, in determining whether the denial of leave to cross-examine an affiant would have made any difference in the Court below. To interpret the decision as the Crown urges me to would depart impermissibly from the holding in Pires. [15] However, it is clear the ultimate issues on a Garofoli review must be kept in mind when determining whether to permit cross-examination. For instance, when preparing an ITO to support an application for an authorization, the affiant must make "full, fair, and frank" disclosure, sufficient for the authorizing judicial officer to evaluate whether the ITO satisfies the requisite legal standard: R. v. Thomson (K.), Thomson (R.), Hately (S.), Farrington, Guilbride, Hately (J.) and Goyer, 2006 BCCA 392 at para.

37. Where leave is sought pursuant to Garofoli, the Court may permit cross-examination of the affiant in relation to whether such disclosure has been made, or on other issues such as the affiant's credibility or the credibility of informants relied on by the affiant (Pires, at paras. 41-43). [16] As held in Pires, cross-examination in this context should be limited to questions directed to establishing that "there was no basis upon which the authorization could have been granted" (para. 45). Where the accused proposes cross-examination of an affiant relating to the credibility of an informant relied upon by the affiant in the ITO, this should only be permitted where it can "support the inference that the affiant knew or ought to have known that" the informant intelligence "was false" (para. 41). [17] Similarly, the Court should not grant leave to cross-examine the affiant where the accused fails to identify any facts, materials, or information relevant to a challenge to the authorization beyond the four corners of the ITO. In such circumstances, cross-examination can be construed as a mere "prelude to an argument about what conclusions could be drawn from" what was said in the affidavit: R. v. MacNeil, 2013 BCCA 162 at para. 34. [18] The Crown also asserts that the omission of relevant material from an affidavit does not necessarily support an accused's application for

cross-examination under Garofoli. In support they refer to R. v. Wilson, 2011 BCCA 252. I note however that in Wilson the Court was not determining whether cross-examination should have been conducted (which it was in that case), but rather whether the failure to make full, fair and frank disclosure "inexorably leads to the conclusion that [an] authorization must be set aside" (at paras. 49-51). Wilson speaks to the ultimate issue on this point, not the threshold question of leave to cross-examine. [19] The Crown also referred to United States of America v. Wilson, 2010 BCCA 85, noting that the Court of Appeal in that case upheld the trial judge's refusal to permit cross-examination of the affiant on his failure to disclose certain matters because the cross-examination could not affect the requirements for issuing the warrant. As noted by the defence, however, the denial of leave in that case related to the failure to disclose two facts that were not relevant to the issues in the Garofoli review (para. 60). The Crown submits that the omission of relevant materials does not meet the leave threshold requirement in any event. I accept that position, insofar as the omission of irrelevant information will not automatically result in a grant of leave for the accused to cross-examine the affiant. [20] Leave to cross-examine should be granted only in accordance with the principles set out above. Further, informer privilege remains applicable even when leave to cross-examine is granted: R. v. Browne, 2014 ONSC 2563 at para.

9. The accused is "not entitled" to pursue questioning or elicit evidence which will tend to reveal the identities of confidential informants. Quite properly, in my view, the accused's proposed grounds for cross-examination relate to the issues regarding the affiant's state of mind, or the comparison of the information in the ITO to source materials already disclosed to the accused and vetted for informer privilege. [21] Nevertheless, if leave to cross-examine the affiant is granted, it must be subject to the limits of informer privilege, which will require the exercise of great caution by the Court, the affiant, the Crown and defence counsel, to ensure that the privilege is not violated. [22] With the above in mind, I turn to the merits of the defence application. Discussion [23] In its application, the defence initially identified 11 matters for cross-examination, that number having since decreased considerably as a result of both subsequent disclosure and argument. Although the defence indicated they were relying generally on their earlier submissions they have in their most recent submissions described their grounds for leave to cross-examine as follows: a) alleged false and contradictory intelligence provided by informants, and the affiant's failure to include that information in the ITO; b) the affiant's decision to include irrelevant but prejudicial information in the

information to obtain; c) the affiant's reliance on information not contained in any of the source documents; d) the affiant's knowledge of lack of corroboration of informant information and the affiant's conclusory statements. [24] I will address each of these proposed areas for cross-examination and the evidence referenced in support of each. False and Contradictory Intelligence Provided by Informants and the Affiant's Failure to Include that Information in the ITO [25] The first allegation of alleged false and contradictory intelligence arises out of a description, provided by Informant "C," of a River Drive residence said to be associated with Mr. Edwardsen. The ITO states that Informant "C" provided this description to police on September 22, 2011. The description is reflected at para. 68.2 of the ITO, where the affiant states: 68 68.2 Informant "C" describes the residence on River Drive as a duplex with a garage door and a tarp covering it, surrounded by a large shrub. [26] Informant "C" provided further detail recorded in the Source Materials, describing the house as blue and white. Cst. Etele did not include that further detail in the ITO. [27] According to the defence, Informant "C" provided an inaccurate description of the River Drive residence. A police photograph reveals that the house is painted brown and white, rather than blue and white as related by Informant

"C." The defence also asserts that the River Drive residence is not a duplex, although whether that is so cannot be determined from the photograph. [28] The accused notes that Cst. Etele knew or ought to have known of the above inaccuracies in the information provided by Informant "C," as the affiant attended at the River Drive residence during the daytime on September 13, 2011, prior to the receipt of information from Informant "C." The defence points out that the inaccurate reference to the paint colour of the River Road residence was originally redacted in the source handler notes, purportedly for the purposes of informer privilege. The defence suggests that this was a mere pretext for withholding disclosure, as the description of the River Residence could not have identified the informant. [29] The defence submits that these inaccuracies raise concerns about the reliability of Informant "C" and the reasonableness of the affiant's belief in intelligence provided by that person. Moreover, as the affiant knew or ought to have known of the inaccuracies, the defence says that these should have been disclosed to the authorizing judicial officer, and that the failure to do so bears on affiant credibility and the question of full, fair, and frank disclosure. The defence therefore says that cross-examination of the affiant has a reasonable likelihood of eliciting evidence related to

these issues, and would also allow the affiant opportunity to explain why there is no source debrief report indicating that Informant "C" provided information of doubtful reliability. [30] A further instance of false or contradictory information being provided by Informant "C" arises out of para. 62 of the ITO. In that paragraph, the affiant relates information from Informant "C" in which that person describes personal involvement in two drug purchases from Mr. Edwardsen. Specifically, Informant "C" said that Mr. Edwardsen sold Informant "C" cocaine at the River Drive residence two years prior to September 2011. Informant "C" also said that Mr. Edwardsen sells and stores cocaine at his Old Lakelse residence, and that Informant "C" was involved in a drug transaction in which cocaine was purchased from Mr. Edwardsen in late August or early September of 2011. Informant "C" related that Mr. Edwardsen drove a Blue Ford F350 truck when that event took place, suggesting that he actually saw the accused in the course of the transaction. [31] The defence says that these statements reveal direct contradictions in the information provided by Informant "C," because, in the source handler notes, Informant "C" reported to police that "[he or she hadn't] seen him selling," referring there, it seems, to Mr. Edwardsen and the sale of drugs. Cst. Etele did not include that information in the

ITO, despite the fact that it directly contradicts the informant's intelligence respecting Mr. Edwardsen's involvement in the drug transactions described at para. 62 of the ITO. The defence therefore submits that Cst. Etele has again failed in his duty to provide full, fair and frank disclosure and says that cross-examination is necessary to explore these omissions and determine whether they impair the affiant's credibility. [32] In my view, the discrepancies noted by the accused above relate primarily to the correspondence, or lack thereof, between information in the ITO and the foundational rendering of that same information in the source materials. That being so, if Cst. Etele did not review the Source Materials, it likely follows that he neither knew nor ought to know of the discrepancies pointed out by defence counsel. As noted in Pires, cross-examination "directed at the credibility or reliability of an informant" should only be permitted where it can support the inference that "the affiant knew or ought to have known" that the information was "false" (para. 41). [33] It is not entirely clear whether Cst. Etele reviewed the Source Materials pertaining to the informant intelligence related in the ITO. He does not expressly state whether he reviewed all, some, or none of the source handler notes or source debrief reports. However, at para. 17 of the ITO, Cst. Etele

discloses that he had "not read all" (emphasis added) of the historical informant information pertaining to the accused. The use of the word "all" gives rise to the inference that Cst. Etele at least read some of the historical informant intelligence, despite acknowledging these to be "no longer relevant" in that same paragraph. [34] If Cst. Etele took the time to review dated, admittedly irrelevant source materials as he describes doing in the ITO, this implies that it is all the more likely that he also reviewed at least some of the highly relevant, recent source materials relating to the investigation of Mr. Edwardsen. In any event, the question of which materials Cst. Etele actually reviewed is one which can only be settled through cross-examination. [35] It appears that Informant "C" inaccurately described the River Drive residence to the police. Informant "C" also described Mr. Edwardsen selling drugs on at least two occasions, despite telling police that he hadn't seen Mr. Edwardsen selling. These matters are significant in evaluating the reasonableness of Cst. Etele's belief respecting the information provided by Informant "C." Moreover, the failure of Cst. Etele to expressly mention these inaccuracies in the ITO, the omission from the ITO of the further inaccuracy relating to the colour of the house as well as Informant "C"'s statement that he had not seen Mr.

Edwardsen "selling" all bear on the credibility of the affiant and the question of full, fair, and frank disclosure. [36] While I acknowledge that these issues may well be the result of inadvertence or minor error, such can only be resolved through cross-examination. I am satisfied that cross-examination should be permitted in these limited areas, as there is a reasonable likelihood of eliciting evidence going to a material issue with respect to the ultimate validity of the warrant. I also find that, in this instance, there is a reasonable likelihood that cross-examination can support the inference that the affiant knew or ought to have known of the discrepancies between the source materials and the informant intelligence provided in the ITO. [37] However, I do not accept that cross-examination should be permitted with respect to the failure to create a source debriefing report indicating that Informant "C" provided information of doubtful reliability. As outlined in Staff Sgt. Cater's affidavit, it would be the source handler and not Cst. Etele who would be responsible for creating such a document. As a result, it is unlikely that Cst. Etele has personal knowledge of facts relevant to this matter. Moreover, I do not accept that this evidence would assist in determining a material issue in any event, as it relates to the accuracy of certain police documents, rather than the

representations made to the authorizing judicial officer in the ITO. The latter, not the former, is at issue on a Garofoli hearing. The Affiant's Decision to Include Irrelevant but Prejudicial Information in the ITO [38] In this category, the defence first refers to information in para. 17 of the ITO, where the affiant states under the heading "Confidential Informants": 17 As part of this investigation, myself and members of my unit have conducted numerous background checks and queries on the subjects being investigated and their associates. As a result, I am aware that EDWARDSEN has been reported on by police informants for at least 15 years. Much of this information is dated and no longer relevant. I have not read all of this dated source information, but do know it exists. I am not relying on any of this dated information. For this investigation, my unit has identified all active informants who have provided information in the past 2 years and who continue to provide information on EDWARDSEN. This is the informant information I have provided and am relying on in this Information to Obtain; [Emphasis added.] [39] The Crown asserts this was properly disclosed as part of Cst. Etele's "duty to make full, fair and frank disclosure." The defence, for its part, argues that while that the duty to make full, fair and frank disclosure requires presentation of all material facts,

whether favourable or not, it is not an invitation to the police to include immaterial innuendo of past criminal activity. They note that there is nothing full, fair and frank about disclosing prejudicial information that the affiant himself deposes is not relevant. They seek to cross-examine Cst. Etele to explore whether he intentionally included this information for an improper purpose. [40] However, I note that the affiant expressly disclaimed reliance on any such intelligence in the ITO. Any references to historical informant intelligence appear to have been made in order to ensure that the authorizing judicial officer understands that the affiant relied only upon fresh, relevant informant intelligence. [41] I fail to see how such references could have misled the authorizing judicial officer, or could have been designed to create a negative impression of Mr. Edwardsen. That is particularly so as no substantive content from historical informant intelligence is included in the ITO. I do not accept that cross-examination on this point could lead to eliciting evidence which could assist in evaluating the validity of the warrant, essentially for the reasons expressed in MacNeil, at para. 26. [42] Similarly, references to Mr. Edwardsen's marihuana consumption cannot reasonably be construed as having been designed to prejudice Mr. Edwardsen in the eyes of the authorizing judicial

officer. In particular, I note that Cst. Etele disclosed at para. 56.9.1 of the ITO that Mr. Edwardsen had a licence to possess and produce marihuana from Health Canada. This would alleviate or undermine completely any such prejudice. While this information is of tenuous relevance to the grounds for the warrant, its inclusion in the ITO is arguably appropriate given the affiant's obligation to provide full, fair, and frank disclosure. I deny leave to cross-examine Cst. Etele in relation to this issue. [43] The defence also says that a reference to an incident at para. 52 of the ITO was included only to mislead the authorizing judicial officer. The incident in question arose when Mr. Edwardsen reported a theft of $1,200 in cash from his hotel room in Burnaby, BC. The accused apparently told the police that he had $8,000 with him, with which he planned to buy a used vehicle for his son. The accused later advised the police that he found the money and asked that the investigation be discontinued. I see nothing misleading about the inclusion of this incident in the ITO, particularly as it could be viewed as corroborative of other intelligence, namely that Mr. Edwardsen obtains drugs from suppliers on the lower mainland (for instance, at para. 48.4). I deny leave to cross-examine Cst. Etele on this matter as well. [44] I am not persuaded that there is a reasonable likelihood that

cross-examination on any of the grounds under this category will elicit evidence that will assist the Court in determining a material issue. Leave is accordingly denied. The Affiant's Reliance on Information Not Contained in any of the Source Documents [45] This category arises from the allegation that the affiant may have attempted to mislead the authorizing judicial officer by misrepresenting informant intelligence said to have been provided by Informant "A." Specifically, the affiant deposed at para. 54 of the ITO that Informant "A" told police that Mr. Edwardsen "runs grow operations." The difficulty, according to the defence, is that the source materials pertaining to Informant "A" do not contain any information which corresponds to that statement. [46] Source handler notes, as described in the affidavit of Staff Sgt. Cater, are a "primary record of raw information provided by [an informant]" and are to be "detailed and comprehensive." Intelligence attributed to Informant "A" in the ITO should therefore be reflected in the Source Materials, particularly the handler notes. The absence of the corresponding information in the Source Materials suggests that the impugned assertions in the ITO are erroneous. If Cst. Etele reviewed the Source Materials, it could be said that he knew or ought to have known that the ITO contained erroneous information. That would speak to his

credibility, and the reasonableness of his belief concerning the information provided by Informant "A. [47] As noted above, the ITO implies that Cst. Etele reviewed at least some Source Materials, and in any event this is a matter which can only be resolved through cross-examination, given the lack of more specific information on this point in the ITO itself. In the result, I grant the accused leave to cross-examine in relation to the limited grounds set out above, as I am satisfied that there is a reasonable likelihood that this will elicit evidence that will assist the Court in determining a material issue. [48] However, the fact that the source debrief reports do not contain certain information that is found in the source handler notes does not form a basis for cross-examination. As Staff Sgt. Cater indicates in his affidavit evidence, source debrief reports reflect a diluted, redacted recounting of the information provided in the source handler notes. Police create source debrief reports to disseminate informer intelligence within the police community without compromising informer privilege. [49] As such, it is to be expected that source handler notes will contain information that is not reflected in source debrief reports. This is not, without more, a sign of impropriety or error on the part of police. I decline to grant leave to cross-examine with respect to this

issue. The Affiant's Knowledge of Lack of Corroboration of Informant Information and the Affiant's Conclusory Statements [50] The accused further seeks to cross-examine Cst. Etele in relation to the affiant's failure to corroborate informant information and certain conclusory statements made in the ITO. This position was not well developed in either the written or oral argument of the defence. [51] The Crown, on the other hand, made extensive submissions on the topic of corroboration, essentially contending that there was overwhelming evidence, even excluding that criticized by the defence, to support the assertions made in the ITO. [52] Under this category, the accused contends that the affiant omitted from the ITO certain portions of a statement given to police by Steve Meier during a robbery investigation, which undermines the information presented in the ITO. In particular, the defence says that Mr. Meier's statement is relevant to the affiant's belief, said to be conclusory, that Mr. Edwardsen was involved in drug trafficking at the River Road residence. [53] There was a robbery at the River Drive residence on October 23, 2011 and, following that event, police officers executed two search warrants at the property the same day. Cst. Etele swore, at para. 72.5.4.2 of the ITO, that the robbery investigation corroborated informant intelligence that drugs were being trafficked

at the River Drive residence, and, as noted, that Mr. Edwardsen was involved with that activity. [54] The defence argues, however, that Cst. Etele did not disclose that Mr. Meier told the police during an interview that he was about to formally take over the lease and was currently the lone or main tenant with full tenancy control or responsibility concerning the River Drive residence. They submit that Mr. Meier's statement undermines the reasonableness of the affiant's belief respecting Mr. Edwardsen's involvement in drug trafficking at the River Drive residence. They submit it appears that the affiant has withheld exculpatory information and should be cross-examined with respect to his motive for doing so. [55] In my view, Mr. Meier's statement to police regarding the lease and tenancy control over the River Drive evidence is only rather tenuously related to the question of Mr. Edwardsen's alleged involvement with drug trafficking activity at that residence. At best, change in the tenancy arrangements at the River Drive residence suggests that Mr. Edwardsen may thereafter have ceased involvement in drug trafficking activity at that residence. It says nothing about Mr. Edwardsen's previous involvement, nor about Mr. Edwardsen's potential involvement in drug trafficking elsewhere. Nevertheless, I accept that Mr. Meier's statement could be viewed as undermining the

reasonableness of the affiant's belief in the accused's involvement in the sale of drugs from the River Drive residence in February 2012, when Cst. Etele swore the ITO. Cst. Etele stated that drugs "are being sold" (emphasis added), which implies that the affiant believed this activity was ongoing. [56] This matter bears on the issue of the affiant's credibility and whether full, fair, and frank disclosure has been made. In the circumstances, I grant the defence leave to cross-examine Cst. Etele on limited grounds related to the impact, if any, of Mr. Meier's police statement on the affiant's belief as expressed at para. 72.5.4.2 of the ITO, and on the reasons for omitting mention of that portion of Mr. Meier's statement from the ITO. [57] Although not entirely clear from the defence submissions, it appears the accused also proposes to cross-examine Cst. Etele on whether he attempted to mislead the authorizing judicial officer by creating the impression that Mr. Edwardsen sold cocaine to Informant "B," when in fact Informant "B" said it was "Mike" who sold him cocaine. [58] Read as a whole, the ITO clearly indicates that Informant "B" bought cocaine from a person named "Mike," and not from Mr. Edwardsen. Cst. Etele makes an express attribution of the sale to "Mike," not the accused, based on information from Informant "B" (at para. 57.5.1). In my view the authorizing judicial

officer could not possibly have been misled on this point, despite that elsewhere Cst. Etele did not expressly exclude Mr. Edwardsen as the seller. Therefore, I do not see how it could be fruitful to cross-examine Cst. Etele on whether he intended to mislead. [59] The defence has not identified any other grounds under this category respecting which cross-examination will reasonably likely result in eliciting evidence which tends to discredit one of the pre-conditions of the challenged authorization. As a result, I decline leave to cross-examine under this category, excepting for the limited grounds relating to Mr. Meier's statement identified above. Conclusion [60] I conclude that the restriction noted at para. 34 of MacNeil does not apply to the facts of this case, as I am satisfied that Mr. Edwardsen has identified facts, materials, and information beyond the four corners of the ITO, such as various Source Materials, the statement of Steve Meier, and the state of mind of the affiant in omitting reference to such in the ITO, which are relevant to the anticipated challenge to the authorization. [61] Moreover, I do not accept the Crown submission that Camara stands for the proposition that the sheer volume of information in the ITO provides a basis for rejecting the accused's application for cross-examination. Even if the Crown interpretation of Camara is correct, I am not

satisfied that the breadth of information in this ITO necessarily means that the accused's proposed cross-examination will fail to discredit the challenged authorization. [62] I am satisfied that the accused has raised sufficient evidence relating to these matters to entitle them to cross-examine the affiant on them in accordance with these reasons. I appreciate that the concerns raised may, at the end of the day, prove to be without substance. However in order that the accused can make full answer and defence he should have the ability to cross-examine on those issues. In particular, if cross-examination is not permitted the accused will be denied the ability to argue the issue of credibility of the affiant. [63] In granting leave, I note that the defence made it clear in submissions that they do not seek to elicit information about or cross-examine respecting undisclosed information pertaining to confidential informants. Rather they seek primarily to impugn the affiant's credibility. I therefore grant leave for the cross-examination of Cst. Etele in accordance with the principles set out in Pires, and subject to informant privilege. Cross-examination will proceed first, followed by re-examination as outlined in Wilson. "Punnett J."