Dawson et al. v. Regina
[Indexed as: Dawson v. R.]
39 O.R. (3d) 436
 O.J. No. 1039
Docket No. C27441
Court of Appeal for Ontario,
McMurtry C.J.O., Carthy and Labrosse JJ.A.
March 12, 1998
Criminal law — Preliminary hearing — Jurisdiction — Interception of private communications — Cross-examination of affiant on Garofoli application — Preliminary hearing judge has jurisdiction to grant leave to cross-examine police witnesses on affidavits in support of wiretap authorization — Decision granting leave to cross-examine discretionary and to be accorded deference on review.
The accused were charged with conspiracy to traffic in narcotics. At their preliminary hearing, they sought to cross- examine police witnesses on affidavits filed in support of a wiretap authorization. The police witnesses had testified concerning the gathering of evidence from an informant. There were discrepancies between the testimony and the affidavit in support of the application for the wiretap authorization, and defence counsel wished to challenge the information behind the authorization and lay a foundation for a challenge under s. 8 of the Canadian Charter of Rights and Freedoms. The preliminary hearing judge refused to permit the cross-examination. The accused were committed for trial. Their application to quash the committal was dismissed. The accused appealed.
Held, the appeal should be dismissed.
The accused argued that they had an untrammeled right to cross-examine the police officers who had been affiants in support of the application for a judicial authorization to intercept the accused’s private communications, even though, at trial, such cross-examination would have required leave from the trial judge. The Crown relied upon the repeated use of the phrase “the trial judge” in R. v. Garofoli in support of the argument that the Supreme Court of Canada intended to limit the power to permit the cross-examination of affiants solely to trial judges, and that a judge presiding at a preliminary hearing had no jurisdiction to grant leave to cross-examine on the affidavits. However, the judgment in R. v. Garofoli did not address the application of its principles to the context of a preliminary inquiry, and is not determinative of the jurisdiction of a preliminary hearing judge. To resolve the issue one must examine the scope of the amendments to s. 187 of the Criminal Code, R.S.C. 1985, c. C-46, and the policy issues raised by the Crown’s contention that the accused’s discovery rights do not permit cross-examination of the affiant at a preliminary inquiry.
Given the 1993 amendments to s. 187 of the Criminal Code, there is no reason that the granting of leave to cross-examine should be the preserve of the trial judge. Legitimate discovery should not be delayed. It would have been jurisdictional error for the preliminary hearing judge to have simply refused the right to cross-examine the witnesses as to the basis for seeking the authorization. However, he did not do so. Rather, he concluded that he was not satisfied that the accused were not merely on a fishing expedition.
In the alternative, the Crown argued that the decision whether to permit cross-examination of an affiant during the preliminary inquiry was an exercise of discretion which should not be overturned unless the judge made a jurisdictional error. This argument is correct. While the appellate court might have formed another view of whether the accused had raised the matter beyond the point of a “fishing expedition”, the preliminary hearing judge did not commit a jurisdictional error in reaching the opposite conclusion.
R. v. Cover (1988), 40 C.R.R. 381, 44 C.C.C. (3d) 34 (Ont. H.C.J.); R. v. Garofoli,  2 S.C.R. 1421, 43 O.A.C. 1, 116 N.R. 241, 50 C.R.R. 206, 60 C.C.C. (3d) 161, 80 C.R. (3d) 317; R. v. George (1991), 5 O.R. (3d) 144, 8 C.R.R. (2d) 346, 69 C.C.C. (3d) 148 (C.A.); R. v. Girimonte (1997), 37 O.R. (3d) 617, 48 C.R.R. (2d) 235, 121 C.C.C. (3d) 33, 12 C.R. (5th) 332; R. v. Mills,  1 S.C.R. 863, 16 O.A.C. 81, 29 D.L.R. (4th) 161, 21 C.R.R. 76, 26 C.C.C. (3d) 481, 52 C.R. (3d) 1, 58 O.R. (2d) 543n; R. v. Stinchcombe,  3 S.C.R. 326, 83 Alta. L.R. (2d) 193, 130 N.R. 277,  1 W.W.R. 97, 18 C.R.R. (2d) 210, 68 C.C.C. (3d) 1, 8 C.R. (4th) 277, consd
Other cases referred to
Dersch v. Canada (Attorney General),  2 S.C.R. 1505, 51 B.C.L.R. (2d) 145, 43 O.A.C. 256, 77 D.L.R. (4th) 473, 116 N.R. 340,  1 W.W.R. 231, 50 C.R.R. 272, 60 C.C.C. (3d) 132, 80 C.R. (3d) 299 Statutes referred to
Canadian Charter of Rights and Freedoms, s. 8
Criminal Code, R.S.C. 1985, c. C-46, ss. 187, 540(1)(a)
Appeal from a judgment of Watt J. ( O.J. No. 2188 (Gen. Div.)) dismissing an application to quash a committal for trial.
Michael Lomer, for appellants.
Robert W. Hubbard and Hugh K. O’Connell, for the Crown, respondent.
The judgment of the court was delivered by
CARTHY J.A.: — The appellants have not yet been tried on charges of conspiracy to traffic in narcotics. At their preliminary hearing they sought to cross-examine police witnesses on affidavits filed in support of a wiretap authorization. His Honour Judge Pickett refused to permit them to do so and they were committed for trial. They then brought an unsuccessful application to quash the committal before Watt J. This is an appeal from the dismissal of that application.
The appellants argue that s. 540(1)(a) of the Criminal Code, 1985, c. C-46, gives them an absolute right to cross- examine all witnesses called by the prosecution at a preliminary hearing. That subsection reads:
540(1) Where an accused is before a justice holding a preliminary inquiry, the justice shall
take the evidence under oath, in the presence of the accused, of the witnesses called on the part of the prosecution and allow the accused or his counsel to cross-examine them; . . .
Under this authority, they submit, the preliminary inquiry judge should have allowed them to cross-examine the police witnesses.
The respondent’s position is that preliminary inquiry judges have no such power. They rely on the Supreme Court of Canada decision in R. v. Garofoli,  2 S.C.R. 1421, 60 C.C.C. (3d) 161, for the proposition that only a trial judge may allow cross-examinations. Emphasis was placed upon the reasons of Sopinka J. in describing the extent of permitted cross- examination on affidavits filed with the authorizing judge.
At p. 1465 S.C.R., p. 198 C.C.C. he stated:
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.
The Crown’s alternative position is that if cross-examination can take place in provincial court then the provincial court judge should be in the same position as the trial judge — able to exercise discretion, as set out in Garofoli, and not be bound by the mandatory provisions of the Code, as the appellants suggest.
Let me turn to the facts. In furtherance of “Project Turmoil”, an investigation of motorcycle gang members, the police gathered evidence from an informant. This evidence was compiled by Sergeant Wills into an affidavit and an application for an intercept warrant. At the preliminary inquiry four police witnesses gave testimony concerning the gathering of the evidence. However, there were discrepancies between the testimony and the affidavit regarding the reliability of evidence passed on to Sergeant Wills. As the wiretap interceptions and the information gathered pursuant to them formed the substance of the case against the appellants, defence counsel wished to challenge the information behind the authorization of the wiretaps and lay a foundation for a violation of s. 8 of the Canadian Charter of Rights and Freedoms. To that end they sought to cross-examine Sergeant Wills on the discrepancies.
His Honour Judge Pickett ruled as follows:
In my respectful opinion the leave that the defence will seek is not leave that should be granted at this time. In my respectful opinion the guidance of the Supreme Court of Canada in Garofoli . . . gives the guidance on that and in my respectful opinion I am therefore required to enter into the process I have.
Secondly, there is clear evidence as to the personal knowledge of the informant in the matters raised. See p. 238, lines 14 to 18 before me, and therefore I am not raised beyond the question of a fishing expedition line of cross- examination.
Finally, if the superior courts in reviewing this decision which I am also buttressed in my decision by, in my respectful opinion, that notwithstanding my findings that there would be no jurisdiction for a provincial judge at a preliminary hearing, notwithstanding my colleagues’ rulings. On the application before Justice Watt, which can be found at  O.J. No. 2188, the appellants took the position that s. 540(1)(a) of the Criminal Code gave them an untrammelled right to cross-examine witnesses at the preliminary hearing and that the leave requirement discussed in Garofoli could not impinge upon that statutory right. The essence of the reasons of Watt J. is found in paras. 62 and 63 of his decision:
It is my respectful view that the case for the applicants reduces to whether the “discovery” function of the preliminary inquiry authorizes the proposed cross- examination. It is my opinion that it does not have any such effect. “Discovery” does not mean carte blanche. Nor should it. There can be no suggestion that, in the name of
discovery, other procedural or admissibility rules are to be abandoned. The discovery function of the preliminary inquiry is also secondary to the main statutory purpose of the inquiry, of which sight is too often lost. The criminal discovery rationale, if not its importance, has been attenuated somewhat by recent developments in the law of prosecutorial disclosure. The policy considerations which underlie the Garofoli standard are equally prevalent at the preliminary inquiry. There seems no principled reason why some lesser standard should apply when leave to cross-examine is sought.
The purpose of cross-examination of the affiant and/or a sub-affiant is to obtain evidence to demonstrate that the interceptional activity, a search or seizure, was constitutionally flawed because it was conducted under the aegis of an unconstitutional authority. At trial, an accused is not entitled as of right to undertake such a cross- examination. Leave must first be obtained. Leave is required where an accused may use the evidence to seek exclusion on constitutional grounds. It seems somewhat anomalous to afford a wider scope of cross-examination to an accused, cross-examination as of right, in proceedings where its purpose, the introduction of evidence to support a case of constitutional infringement and exclusion, is beyond the authority of the presiding judicial officer. It is a fortiori where all references in the foundational authority, R. v. Garofoli, supra, are to the trial judge.
In dismissing the application, Watt J. met the appellant’s argument head-on and concluded that there is not an untrammelled right to cross-examine in these circumstances at the preliminary hearing. What is left unresolved, unless it can be taken from the final sentence in the reasons quoted above, is whether there is jurisdiction in the provincial court judge to grant leave in appropriate circumstances to cross-examine at the preliminary hearing. If one can take an implication from the concluding words of Watt J., it would be that the right to cross-examination can only be granted by the trial judge.
Having set out the issue, and the decisions below, I now turn to an evaluation of the respective positions of the parties. The Crown argues that the repeated references to the trial judge in Garofoli confine the function of granting leave to cross-examine to the occasion of the trial. In my view, that is too literal an interpretation to take from these two paragraphs, which must be examined in the context of the reasons from which they are taken and the legal framework surrounding the testing of admissibility of wiretap evidence at that time.
To begin with, Garofoli must be read in conjunction with its companion decision, Dersch v. Canada (Attorney General),  2 S.C.R. 1505, 77 D.L.R. (4th) 473. Both cases dealt with “packets” — sealed packages which contain the documents upon which a wiretap authorization is granted. In Dersch the accused was held entitled to have the packet opened, subject to editing by the Crown, in order to make full answer and defence. Garofoli sets out procedures to be followed once the packet is open. At p. 1461 S.C.R., pp. 194-95 C.C.C., Sopinka J. sets forth a six-point procedure to follow.
Sopinka J. suggests that all matters relating to the admissibility of wiretap evidence should be dealt with at one time and at trial, rather than on separate motions before other judges. The focus of the entire reasons is upon bringing all matters concerning potential s. 8 violations together before the trial judge to test the admissibility of evidence, to weigh such evidence as is admissible, and to make such findings and disposition as is warranted. It was thus natural to speak of the cross-examination on the affidavit leading to the authorization as being before the trial judge as part of that process.
The reasons in Garofoli are not directed to the right of cross-examination at a preliminary hearing as provided for in s. 540(1)(a) of the Criminal Code, nor to the discovery aspect of a preliminary hearing. Discovery at the preliminary inquiry can occur without affecting the responsibilities that Sopinka J. suggests be reserved for the trial judge. The trial judge will still, for example, determine the extent of cross- examination at trial. It is therefore my view both that Sopinka J. was not directing his mind to the preliminary hearing process, and that his language in referring to the functions of the trial judge need not be read as describing an exclusive function.
The reasons in Garofoli provided a format for legislated amendments to s. 187 of the Code in 1993. Accordingly that section now lays down the procedure for opening the packet and making its contents available. Significantly, for present purposes, a provincial court judge may now open the packet, and provide a copy of the contents to the accused after it has been edited by the Crown; previously that role was reserved for a superior court judge. Given the acknowledged right of the accused to the contents of the packet, subject to that editing, it is natural to expect that applications will be made at an early date, and before a provincial court judge. Thus, any exclusive function that the trial judge may have been expected to have in respect of opening the packet and editing its contents has been overrun by events. In the present case, the packet had been opened prior to the preliminary hearing and the appellants were, in effect, seeking to complete their discovery at the preliminary hearing.
I am, therefore, not persuaded by the respondent that Garofoli is determinative of the issue before this court. Before turning to the arguments of the appellants I would also say that I am not persuaded by the respondent’s argument that the discovery aspect of a preliminary hearing should be diminished or given less emphasis in light of R. v. Stinchcombe,  3 S.C.R. 326, 68 C.C.C. (3d) 1. Stinchcombe emphasizes the entitlement to early disclosure and arguably supports questioning at a preliminary hearing on matters that are not available by other means of discovery. Nor can I accept the Crown’s argument based upon R. v. Mills,  1 S.C.R. 863, 26 C.C.C. (3d) 481, to the effect that the provincial court is not a court of competent jurisdiction under s. 24 of the Charter and thus should not be entertaining cross- examination directed to a breach of the Charter. It is now commonplace to have examinations of witnesses at preliminary hearings on all aspects of potential Charter violations. It is only the requirement for leave, as enunciated in Garofoli, that may distinguish wiretap authorizations from, for instance, the facts surrounding an alleged illegal arrest or the granting of the right to counsel.
Since the argument of this appeal my attention has been drawn to the decision of this court in R. v. Girimonte, released December 9, 1997 [now reported 37 O.R. (3d) 617, 48 C.R.R. (2d) 245]. I can see nothing in the reasons of Doherty J.A. that impinges upon the issues in the present case. That case concerns the regulation of the Crown’s disclosure obligations. There is discussion of the discovery aspect of a preliminary hearing being an incidental benefit to the defence, rather than a constitutional right, but the statutory right to cross- examine is recognized and remains as the primary thrust of the appellants’ position on this appeal.
Having first dampened the arguments of the respondent, I hasten to say that I do not rush to embrace the arguments of the appellants. Their claim to the right to cross-examine without leave at the preliminary hearing on matters that would require leave at trial causes one to examine the claim with skepticism despite the plain language of s. 540(1)(a) of the Criminal Code.
The appellants rely upon the judgment in R. v. Cover (1988), 44 C.C.C. (3d) 34, 40 C.R.R. 381 (Ont. H.C.J.), and the approval thereof in R. v. George (1991), 5 O.R. (3d) 144, 69 C.C.C. (3d) 148 (C.A.). Those decisions indicate that, while incidental questions in cross-examination may be curtailed by the judge at the preliminary hearing, a blanket refusal to permit cross-examination on matters that may be relevant to Charter issues at trial would constitute a denial of the opportunity to make full answer and defence and would thus be a jurisdictional error. The appellants say the latter is precisely what occurred here.
It should first be noted that Garofoli is not referred to in George and presumably formed no part of the appellant’s argument. This is probably because both George and Cover were search warrant cases which did not bring into play s. 187 of the Criminal Code, dealing with intercept authorizations, and the court-imposed requirement of leave to cross-examine on the terms as set forth by Sopinka J. There may be no difference in principle between the two situations respecting the policy reasons for restricting cross-examination, but the fact remains that there was no issue in George or Cover as to the need for leave to cross-examine and whether the requirement of leave impairs the ability to make full answer and defence.
Looking at this issue broadly, and without regard to whether it is cross-examination at trial or at a preliminary hearing, it is my view that Sopinka J. in Garofoli was simply laying down guidelines for cross-examinations on a subject-matter which warrants advance limitations on the extent of disclosure. Policy reasons associated with the protection of the police investigative procedures and informers demand that proper bounds of cross-examination be pre-set to avoid rulings being made after the damage is done. The judge must be satisfied cross-examination is necessary to enable the accused to make full answer and defence. Relevance, materiality and prolixity will be guiding factors and if beyond their limits, given the context of the proposed defence, then the questions will not meet the Garofoli test. Further, if the proposed questions are beyond those limits they will be properly excluded from the right to cross-examine afforded by s. 540(1)(a), which cannot be read as a right to pursue issues which are not germane to the proceedings.
My conclusion is that, given the 1993 amendments to s. 187 of the Code, there is no reason that the granting of leave to cross-examine should be the preserve of the trial judge. Why should legitimate discovery be delayed? Why should a provincial court judge not be permitted to apply a very simple test to assure against prolixity, irrelevance, and well-known policy concerns? I can see none and s. 540(1)(a) is a strong directive to that end. This should not be considered as a usurpation of the trial judge’s function. Cross-examination will disclose facts to the accused, but they will only become admissible at trial by leave of the trial judge.
I am therefore satisfied that it would have been jurisdictional error for the preliminary hearing judge to have simply refused the right to cross-examine the witnesses as to the basis for seeking the authorization. However, he did not do so. In his reasons quoted above, he states that he is applying the Garofoli test and concludes that he is not satisfied that the issue has “raised beyond the question of a fishing expedition line of cross-examination”. On my own view of the evidence, I would not have so concluded and, if this were an appeal, might consider this grounds for intervention. However, the issue before us is whether there has been jurisdictional error and I find none in applying the Garofoli test for leave and concluding against granting leave, even if erroneously.
I would therefore dismiss the appeal. It would be fair for a reader to now ask why these lengthy reasons precede a paragraph which is dispositive of the appeal. The answer is that Crown counsel before us, recognizing the conflicting results emerging from the provincial court level, requested that we resolve the main issue.