Page 1 Case Name: R. v. Serré Between Her Majesty the Queen, and Diane Serré [2011] O.J. No. 6414 2011 ONSC 3609 Court File No. 05-30105 Ontario Superior Court of Justice C.D. Aitken J. Heard: May 10, 2011. Judgment: June 15, 2011. (18 paras.) Counsel: Michael Boyce and Carl Lem, for the Crown. Natasha J. Calvinho and J. Michael Spratt, for the Accused. C.D. AITKEN J.:-- Nature of Proceedings Reasons on Garofoli Application <b<part I: Motion for Leave to Cross-examine Affiant of July ITO 1 The Accused seeks leave to cross-examine Daniel Ste-Marie ("Ste-Marie"), an RCMP officer,
Page 2 in regard to an affidavit under s. 185 of the Criminal Code, R.S.C. 1985, c. C-46 (as am.) that he swore on July 2, 2004. The affidavit ("July ITO") was relied on by McKinnon J. on July 7, 2004 in granting the Crown authorization to intercept private communications originating from a number of locales or cellular telephone numbers. The Accused and Issam Dakik ("Dakik") were both identified in the authorization order as people whose communications may be intercepted. 2 The Accused seeks to cross-examine Ste-Marie on the accuracy and completeness of the information in the July ITO and on issues relating to investigative necessity. The Accused's position is that McKinnon J. was not provided with full and accurate information in the July ITO and was therefore misled as to the state of the investigation. As well, the Accused argues that the pre-requisite condition of investigative necessity was not made out in the July ITO. Charges 3 The Accused is charged with 28 counts under ss. 121(1)(a)(ii), 121(1)(d), 122 and 120(a) of the Criminal Code all relating to alleged immigration frauds. The allegations are that the Accused, being an employee of Citizenship and Immigration Canada ("CIC") demanded, accepted, offered to accept or agreed to accept from Dakik a reward, advantage or benefit as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with the immigration applications of a number of individuals, and in committing such fraud on the Government of Canada also committed a breach of trust in connection with the duties of her office. In one case, the Accused, a public officer, is alleged to have received a bribe with the intent to interfere with the administration of justice. General Principles 1 4 Leave must be obtained by an accused to cross-examine an affiant in regard to an affidavit in support of a wiretap authorization. "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 preconditions to the authorization... [T]he cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis which the authorization could have been granted" (R. v. Garofoli, [1990] 2 S.C.R. 1421 at paras 88-89 [Garofoli ]). 5 The threshold test was refined further in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 at paras 3 and 31 [Pires ] where Charron J. stated: The Garofoli threshold test requires that the defence show a reasonable likelihood that cross-examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewing judge. It is grounded in two basic principles of evidence: relevance and materiality.
Page 3... There is no point in permitting cross-examination if there is no reasonable likelihood that it will impact on the question of admissibility of the evidence.... The Garofoli threshold test is all about relevancy. If the proposed cross-examination is not relevant to a material issue, within the narrow scope of the review on admissibility, there is no reason to permit it. 6 The right to cross-examine is not unlimited, and must be tempered with concerns regarding the prolixity of proceedings and the protection of the identity of confidential informants (Garofoli at para 87; Pires at para 10). 7 Before leave is granted, there needs to be a threshold showing a basis for the cross-examination, and when permitted, cross-examination should be confined to questions directed to the issue(s) for consideration. (Pires at para 10) The test for permitting cross-examination of an affiant whose affidavit has been used to obtain a wiretap authorization is not a stringent one (R. v. Williams (2003), 181 C.C.C. (3d) 414 (Ont. C.A.) at para 11). Basis for Request 8 The Accused seeks to cross-examine Ste-Marie in regard to the following issues: (1) the accuracy and completeness of the information presented in the July ITO; and (2) investigative necessity. Defence counsel advised that he did not wish to cross-examine on issues relating to the identity, credibility or reliability of informants. 9 In regard to the completeness of the information presented in the July ITO, the Accused points to the following facts revealed in the Crown's disclosure documents: * The third confidential informant ("CI3") provided the name of "Adrien" as another person within CIC with whom Dakik dealt, and that there was a hearing officer by the name of Adrien Duford with CIC Ottawa. This information was not contained in the July ITO. * The sixth confidential informant ("CI6") referred to Dakik as "Essam Cherabeye" but this information was not contained in the July ITO. 10 In regard to inaccurate or misleading information in the July ITO, the Accused points to the following: * The July ITO referred to three cases investigated by Carole Jong ("Jong") of CIC and stated that the Accused had been involved in two of the three cases. The July ITO did not state that Jong had in fact investigated eight cases.
Page 4 * The July ITO stated that Jong had advised that the cases she had investigated had been expedited, without providing details of the average time in which cases are normally handled and the time involved on the cases in which Jong reported the Accused had been involved. * The July ITO described confidential CIC documents relating to one "Roger Harper" being found in the garbage from the Accused's home without stating that Harper was the Accused's spouse. * The July ITO speaks of cell number 613-612-1622 being Dakik's number without clarifying that the cell number was actually registered to his wife. 11 In regard to overstating the case in the July ITO, the Accused points to the following: * In the Executive Summary of the July ITO it is stated that the RCMP had received information from six confidential informants. In the same paragraph it stated that Dakik had received the assistance of a contact within CIC by the name of "Diane", without clarifying that only one source had identified Diane. * In a summary discussion on p. 104 of the July ITO, it stated that four confidential informants stated that Dakik associated with a female employee of CIC by the name of "Diane". Although all six informants had stated that Dakik had an associate within CIC, only one identified that contact as "Diane". 12 In regard to investigative necessity, the Accused takes the position that statements in the ITO regarding the challenges to infiltrate Dakik's circle through the use of an undercover operator at the time were conclusory and were not supported with adequate evidence. Analysis 13 Although the July ITO includes much detail about the information obtained from the confidential informants, surveillance, and other investigative measures, the fact that there are some misstatements and omissions in the July ITO creates the basis upon which cross-examination becomes appropriate. The identified omissions, misstatements and arguably overreaching statements raise the question as to whether the affiant knowingly or intentionally misled the authorizing judge. In making full answer and defence, the Accused should be entitled to explore why decisions were taken to exclude some potentially relevant information from the July ITO and how it came about that some misstatements were made. 14 Additionally, the July ITO leaves unanswered some questions as to why the affiant concluded that it would have been futile in the investigation to use an undercover agent before seeking a wiretap authorization when it was decided at a later date to use one. 15 There is a reasonable likelihood that cross-examination on these issues may assist the Court in
Page 5 determining whether the authorizing judge could have been satisfied that the preconditions for the granting of the authorization existed. 16 All counsel agree that granting leave to cross-examine will not result in lengthening these proceedings to any significant extent. It will not require additional time to that already set aside for pre-trial motions. It will not delay the trial. Ruling 17 For these reasons, I granted leave to the Accused to cross-examine the affiant Ste-Marie in regard to the following topics: (1) The extent to which there were erroneous or misleading statements in the July ITO or the extent to which there were omissions - and the reasons for those errors, omissions or misstatements; (2) whether there was any bad faith on the part of Ste-Marie; and (3) the issue of investigative necessity. 18 Counsel was advised that care had to be taken not to ask any questions the answers to which might help to identify the confidential informants referred to in the July ITO. No questions were allowed regarding the credibility or reliability of the informants as Defence counsel advised the Court that these were not issues he wanted to pursue, and the Accused provided no basis for pursuing this line of questioning. C.D. AITKEN J. cp/e/qljel/qlpmg 1 A useful review of the overarching principles governing leave to cross-examine an affiant are set out by Hill J. in R. v. Pham, [2009] O.J. No. 4296 (S.C.J.).