R. v. Sipes

R. v. Sipes

The reviewing judge has discretion on procedure but should, as a general rule, hear sub-facial challenges first (commencing with an application for leave to cross-examine the affiant) because successful sub-facial proceedings may render facial challenges redundant and because evidence from sub-facial proceedings may be critical to the s.24(2) analysis; however the judge may decide otherwise in particular circumstances and may hear and decide both challenges together as appropriate.

Citation
2010 BCSC 564
Parties
Respondent (crown): Regina; Applicant (accused): Dale Gordon Sipes; Applicant (accused): Leslie Podolski; Applicant (accused): Sheldon Richard O'Donnell; Applicant (accused): Peter Manolakos; Applicant (accused): Douglas Corey Brownell
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
26 April 2010
Procedural Posture
Criminal Wiretap Authorization; Charter S.8 and S.24(2) Application / Voir Dire on Admissibility of Intercepted Private Communications and Challenge to Affidavit (facial and Sub Facial)
Outcome
Court exercised discretion: on this record the court heard facial submissions first but concluded to hear and decide the sub-facial challenges as well and to decide both challenges in a single decision; for future cases the court will generally require sub-facial (leave to cross-examine) proceedings first and then...
Legal Topics
Wiretap Authorization, Affidavit Challenges, Facial Vs Sub Facial Challenge, Leave to Cross Examine Affiant, Charter S.8, Charter S.24(2)
Source Language
English
Criminal Law Constitutional Law Evidence Procedural Law Wiretap Authorization Affidavit Challenges Facial Vs Sub Facial Challenge Leave to Cross Examine Affiant +2 more

Case Brief

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Parties

Regina

Respondent (crown)

Dale Gordon Sipes

Applicant (accused)

Leslie Podolski

Applicant (accused)

Sheldon Richard O'Donnell

Applicant (accused)

Peter Manolakos

Applicant (accused)

Douglas Corey Brownell

Applicant (accused)

Procedural Posture

Criminal Wiretap Authorization; Charter S.8 and S.24(2) Application / Voir Dire on Admissibility of Intercepted Private Communications and Challenge to Affidavit (facial and Sub Facial)

Legal Issues

  1. 1 Which procedure should a reviewing judge follow when both facial and sub-facial challenges are made to an affidavit supporting a wiretap authorization?
  2. 2 Whether leave to cross-examine the affiant should be addressed first (sub-facial) or after a facial sufficiency determination.
  3. 3 How evidence adduced on a sub-facial challenge affects the s.24(2) exclusion analysis.

Ratio Decidendi

The reviewing judge has discretion on procedure but should, as a general rule, hear sub-facial challenges first (commencing with an application for leave to cross-examine the affiant) because successful sub-facial proceedings may render facial challenges redundant and because evidence from sub-facial proceedings may be critical to the s.24(2) analysis; however the judge may decide otherwise in particular circumstances and may hear and decide both challenges together as appropriate.

Court Disposition

Court exercised discretion: on this record the court heard facial submissions first but concluded to hear and decide the sub-facial challenges as well and to decide both challenges in a single decision; for future cases the court will generally require sub-facial (leave to cross-examine) proceedings first and then...

Orders

  • Proceed to hear the sub-facial challenges (application for leave to cross-examine the affiant) and hear any evidence the court permits
  • Decide both the sub-facial and facial challenges together in one decision on this application