



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



R.
                v. Pires,









2004 BCCA
            33




Date: 20040122





Docket: CA028747; CA028748

Docket: CA028747

Between:

Regina

Respondent

And

Francisco
      Batista Pires

Appellant



- and -



Docket: CA028748

Between:

Regina

Respondent

And

Ronaldo
      Lising

Appellant












Before:



The Honourable
            Chief Justice Finch





The Honourable
            Madam Justice Southin





The Honourable
            Madam Justice Newbury









K.S. Westlake



Counsel for the Appellant Francisco B.
            Pires





G.P. DelBigio



Counsel for the Appellant Ronaldo Lising





C. Stolte
            and E.W. Froess



Counsel for the Respondent





Place and
            Dates of Hearing:



Vancouver, British Columbia





October 23-24, 2003





Place and
            Date of Judgment:



Vancouver, British Columbia





January 22, 2004









Written
              Reasons by
:





The Honourable
            Madam Justice Newbury





Concurring
              Reasons by:





The
            Honourable Chief Justice Finch  (Page 55, para. 70)





Concurring
              Reasons by:





The Honourable
            Madam Justice Southin (Page 64, para. 87)





Reasons for Judgment of the Honourable Madam Justice
        Newbury:

[1]

In
        1990, in
R. v. Garofoli
[1990] 2 S.C.R. 1421, the Supreme
        Court of Canada established, among other things, the circumstances in which
        an accused may, as part of a
voir dire
held to determine the validity
        of a wiretap authorization or search warrant, cross-examine the deponent
        of an affidavit used by the Crown in obtaining the order.  Mr. Justice
      Sopinka for the majority said this:

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
        preconditions 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.
[at 1465; emphasis added.]

In the same case, the Court established two other principles
        relevant to the case at bar: first, that the "existence of fraud,
        non-disclosure, misleading evidence and new evidence" are all relevant
        to the review of the decision of the authorizing judge, but none of them
        is either a "prerequisite to review" nor determinative; and second,
        that the task for the reviewing judge (usually the trial judge) is not
        to substitute his or her own view for that of the authorizing judge but,
        in the words of Sopinka J., to "determine whether there continues
        to be any basis for the decision of the authorizing judge."  (at
      1452.)

[2]

Appellate
        courts in Canada have affirmed and applied these principles on many occasions
        (see for example
R. v. Kutynec
(1992) 70 C.C.C. (3d) 289
        (Ont. C.A.), at 297-9;
R. v. Feldman
(1994) 91 C.C.C. (3d)
        256 (B.C.C.A.), at 263-5;
R. v. Vukelich
(1996) 108 C.C.C.
        (3d) 193 (B.C.C.A.), at 202-3;
R. v. Monroe
(1997) 8 C.R.
        (5th) 324 (B.C.C.A.);
R. v. Bisson
(1994) 87 C.C.C. (3d)
        440 (Que. C.A.), aff'd at [1994] 3 S.C.R. 1097; and
R. v. Araujo
(1998)
        127 C.C.C. (3d) 315 (B.C.C.A.), result aff'd  at [2000] 2 S.C.R. 992)
        and have generally not attempted to reformulate or refine the Supreme
        Court's
        pronouncements in
Garofoli
.  Nevertheless, appellants' counsel
        on this appeal contended that the state of the law is unsatisfactory, that
        different trial judges apply different "standards" when faced
        with applications to cross-examine the deponents of affidavits used by
        police in obtaining search warrants or wiretap authorizations, and that
        this court should clarify at exactly what point it can be said "a
        basis" has been shown such that an accused becomes entitled to cross-examine
        as part of his or her rights under ss. 7 and 8 of the
Canadian Charter
      of Rights and Freedoms
.

[3]

Counsel
        for the appellants before us were not themselves consistent on this issue:
        they had argued at length below that their clients had an (absolute) "right" to
        call witnesses as they saw fit in support of their application to set aside
        a wiretap order, while at other times they acknowledged they were required
        to discharge an onus, although not a heavy one, to justify cross-examination.  In
        this court, counsel for the appellant Lising first took the position that
        he was required to show only an "air of reality" to an "issue",
        such as the deponent's credibility, to be entitled to cross-examine.  Later,
        he acknowledged this was not a workable test in the present context,
        and reverted to the
Garofoli
wording.  He contended, however,
        that a "basis" always exists where the deponent has been guilty
        of fraud or has misled the authorizing judge.  In these circumstances,
        the appellants argued, cross-examination is necessary to test the deponent's
        credibility before the court may determine whether the authorizing judge
        could still have granted the authorization after excising any misleading
        portions of the affidavit.  Relying in this case on a single paragraph
        of the affidavit found by the trial judge to be misleading, the defence
        contended they had met the
Garofoli
"test" and
        should have been permitted to explore the credibility of the deponent,
      and of his informant, generally in a
voir dire
.

[4]

Two
        other grounds of appeal were advanced in this court  that the trial
      judge had erred in refusing an application to sever a conspiracy count
      from the
        substantive counts, and to sever two counts, brought against only the
      appellant Lising, from the others; and in refusing to declare a mistrial
      as a "remedy
        to the evidence of risk of jury tainting" (to quote the appellants'
        factum) or alternatively, on the basis that a miscarriage of justice had
        occurred due to jury tainting.  For the reasons that follow, I am of
        the view that all three grounds must fail and that the appeal must be
      dismissed.

FACTUAL BACKGROUND

[5]

The
        two accused were charged in June 1998 in a seven-count indictment.  They
        were jointly charged on counts 1 to 5.  Count 1 charged them with conspiring
        with each other and with other unindicted co-conspirators to traffic in
        cocaine between November 1, 1995 and April 30, 1997.  Counts 2 and 3 charged
        them with trafficking in cocaine and with possessing the proceeds of trafficking
        in cocaine, between November 1, 1995 and April 30, 1996.  Counts 4 and
        5 charged them with trafficking in cocaine and possessing the proceeds
        of such trafficking between July 1, 1996 and April 30, 1997.  The appellant
        Lising alone was charged under counts 6 and 7 with possessing cocaine and
        the drug commonly known as "Ecstasy" for purposes of trafficking
        on March 22, 1997.  Both appellants were convicted on counts 1, 4 and 5
        and acquitted on counts 2 and 3, and Mr. Lising was acquitted on counts
        6 and 7 but convicted of the included offence of simple possession of cocaine
        and Ecstasy.  The trial occupied 77 days before K. Smith J. (as he then
      was) and a jury.

[6]

The
        April 1996 date referred to in counts 2 and 3 was significant because
      it was in that month that the key Crown witness at trial, Mr. Molsberry,
      began
        working as an informant for the police in connection with the drug distribution
        ring in which the appellants were involved.  For the period November 1995
        to April 1996, the only evidence against the appellants was that of Mr.
        Molsberry and they were acquitted on the charges referable to that period.  After
        April 1996, the informant's evidence was supplemented by police surveillance,
        wiretap evidence and drug seizures.  From September 1996, the police
        investigation continued without Mr. Molsberry's involvement, ending in
      April 1997.

[7]

In
        general terms, the Crown alleged that the appellants distributed cocaine
        to doormen and bartenders employed at various bars and clubs in downtown
        Vancouver.  Molsberry had been a doorman at a Vancouver club.  It was conceded
        that he was a drug user and trafficker, and indeed it was allegedly because
        he was in debt to Mr. Lising for drugs and feared illegal enforcement measures
        that he approached the police and agreed to provide them information regarding
        the drug ring.  At trial, Molsberry testified to having bought cocaine
      from one or the other of the appellants on approximately 40 occasions.

THE APPLICATION TO CROSS-EXAMINE

[8]

The
        wiretap authorization in this case was sought under s. 184.2 of the
Criminal
        Code
, R.S.C. 1985, c. C-46, which permits the interception of
        private communications with the consent of one participant in the communication.  Subsection
        184.2(2) sets out the circumstances in which a peace officer may apply
ex
      parte
for an order authorizing such interception:

(2)   An application
        for an authorization under this section shall be made by a peace officer,
        or a public officer who has been appointed or designated to administer
        or enforce any federal or provincial law and whose duties include the
      enforcement of this or any other Act of Parliament, ex parte and in writing
      to a provincial
        court judge, a judge of a superior court of criminal jurisdiction or
      a judge as defined in section 552, and shall be accompanied by an affidavit,
        which may be sworn on the information and belief of that peace officer
        or public officer or of any other peace officer or public officer, deposing
      to the following matters:

(a)   that there are reasonable grounds to believe that
        an offence against this or any other Act of Parliament has been or will
      be committed;

(b)   the particulars of the offence;

(c)   the name of the person who has consented to the
      interception;

(d)   the period for which the authorization is requested;
      and

(e)

in
        the case of an application for an authorization where an authorization
        has previously been granted under this section or section 186, the particulars
      of the authorization.

and s-s. (3) sets out the circumstances in which the
      order may be made:

(3)   An authorization
        may be given under this section if the judge to whom the application
      is made is satisfied that

(a)   there are reasonable grounds to believe that an
        offence against this or any other Act of Parliament has been or will
      be committed;

(b)   either the originator of the private communication
        or the person intended by the originator to receive it has consented
      to the interception; and

(c)   there are
        reasonable grounds to believe that information concerning the offence
      referred to in paragraph (a) will be obtained through the interception
      sought.

The constitutionality of s. 184.2(2) has been upheld
        by the Quebec Court of Appeal (see
R. v. Bordage
(2000)
        146 C.C.C. (3d) 549), but was challenged by the appellants at trial.  The
        trial judge upheld the validity of the provision, and his ruling is not
        challenged
      on appeal.

[9]

The
        affidavit required under s. 184.2 was sworn by Detective Richards, a
      member of the "Strike Force" of the Vancouver Police Department.  He
        deposed that he had previously been attached to the Co-ordinated Law Enforcement
        Unit, where he had specialized in the investigation of members of the Hell's
        Angels Motorcycle Club.  He and a Constable Dalstrom had met on July 7,
        1996 with Mr. Molsberry, who had indicated his willingness to act as a
        police agent to "obtain information regarding unlawful activities
        engaged in by certain members and associates of the East End chapter of
        the Hell's Angels."  Molsberry had advised Detective Richards, and
        the detective deposed that he "verily believed", that
inter
        alia
Molsberry had a criminal record from 1988 for possession of
        marihuana and was not currently a drug user but had been in the past;
        that he had
        been charged with driving while prohibited, obstructing a peace officer
        and failing to appear; that he was employed as a doorman at various Vancouver
        clubs but also supported himself by trafficking in cocaine; and that
        he had begun purchasing cocaine from associates of the Hell's Angels
        in January
        1996.  The affidavit named the appellants and two other persons about
      whom Molsberry was prepared to provide information to the police.

[10]

Paragraph
        7 of the affidavit gave details of Mr. Molsberry's becoming indebted
      to the appellants as a result of drug dealings with them.  He had told the
        police that the appellants and others "intended to seriously assault
        him as punishment for not paying the drug debts described above."  On
        July 5, he had said, Messrs. Pires and Lising had attended at his residence
        and threatened him, as a result of which he had called the police.  By
        the time the police arrived, the appellants had gone.  Mr. Molsberry
        was said to have expressed serious concern about his safety and agreed
        to provide
      information to the police.

[11]

Detective
        Richards deposed that he had searched Mr. Molsberry's criminal record,
        which showed the conviction for possession of a narcotic, and that he
      had searched the Provincial Court Registry, which showed a recent plea
      of guilty
        to driving while prohibited.  The charges of obstructing a peace officer
        and failing to appear were still pending.  Then followed para. 11 of
      the affidavit, in which the officer stated:

THAT on August 1, 1996, I was advised by Sgt. Peter FRASER of the
        Vancouver Police Department, Polygraph Section (hereinafter referred to
        as "Sgt. FRASER"), and verily believe, that on July 31, 1996,
        he conducted a polygraph examination of MOLSBERRY in relation to this
        police investigation.
Sgt. FRASER informed me that as a result of the examination
        he verily believes, as do I, that to date MOLSBERRY has been completely
        truthful in his dealings with the police in this investigation.
[Emphasis
      added.]

[12]

The
        detective also referred in general terms to information received from
      Cst. Dolstrom, who in turn had received information from a confidential
      informant,
        'A', regarding unlawful activities engaged in by the appellant Lising.  'A'
        had provided information to Cst. Dolstrom for more than four years which
        had proved reliable and had been independently verified.  'A' gave Cst.
        Dolstrom information regarding unlawful activities engaged in by Mr. Pires
        and his brothers, including the information that Mr. Pires acts as an "enforcer" to
        collect drug debts on their behalf.  'A' and two other informants, 'B'
        and 'C', were also said to have provided information to the police regarding
      cocaine trafficking engaged in by two other men, Messrs. Roming and Dipopolo.

[13]

Next,
        Detective Richards deposed that he had been with Mr. Molsberry when the
        latter placed a call to Mr. Lising on July 10, 1996.  After the call, Mr.
        Molsberry informed Detective Richards that Lising was angry, that the debt
        had been increased to $1,000 and that he, Molsberry, would be dead if it
        was not paid by July 15.  The police thereupon provided $1,000 in cash
        to Molsberry to pay the debt.  Detective Richards deposed that he observed
        Mr. Molsberry meet with the appellants at a restaurant where he handed
      cash to Mr. Lising.

[14]

As
        further corroborative information, the detective described a meeting
      between Molsberry and Dipopolo about another outstanding debt and the sale
      of an
        ounce of cocaine proposed by Dipopolo to Molsberry.  As well, the informant
        told Detective Richards he had been assaulted by one Kokotailo and two
        others, as a result of which he had sustained serious facial injuries.  The
      detective observed that Molsberry had sustained such injuries.

[15]

The
        officer then described the status of the investigation and the proposed "strategy" to
        be followed by the police by means of wiretaps and surveillance.  He deposed
        that based on the facts set out in the affidavit, he had reasonable grounds
        to believe that the interception of private communications of Lising, Pires,
        Dipopolo, Roming "and other participants in the cocaine trafficking
        scheme, when they are communicating with Molsberry, will provide information
        concerning the offences referred to in the following paragraph."  Various
        trafficking offences were listed, the means of communications proposed
        to be intercepted were described, and other details necessary to meet
      the requirements of s. 184.2 were provided.

[16]

Mr.
        Justice Oppal granted the authorization on August 6, 1996 for a period
      not exceeding 60 days.

The Trial Judge's Ruling

[17]

The
        first matter of business at the start of the trial on January 21, 2000
        was an application by the defence to call evidence in a
voir dire
in
        connection with the challenge to the constitutionality of s. 184.2,
        and to  the wiretap authorization granted pursuant thereto.  Mr. DelBigio
        on behalf of the appellant Lising sought to cross-examine both Detective
        Richards and Mr. Molsberry, while counsel for Mr. Pires sought to cross-examine
        only Detective Richards.  Argument on the two applications occupied five
        days in the absence of the jury  an inordinate time, in my view, for
        argument on a straightforward question on which there is clear and binding
      authority.

[18]

In
        his ruling dated February 17, 2000, the trial judge noted that counsel
        had advanced two bases for challenging the wiretap authorization  first,
        that the affidavit was insufficient to establish reasonable grounds to
        believe that an offence had been or would be committed; and second, that
        the evidence was insufficient to establish that Molsberry had consented
        to the wiretap.  (The latter argument is not advanced on appeal.)  With
        respect to the sufficiency of the affidavit (and indirectly, the reliability
        of Molsberry's information), counsel relied heavily on the transcript of
        a long series of questions and answers between the polygraph examiner (Sergeant
        Fraser) and Molsberry.  The transcript was entered as an exhibit at trial.  Most
        of the dialogue took place prior to the actual examination.  In this conversation,
        Molsberry freely admitted that he often lied.  When asked about his record,
      he referred only to the conviction for possession of marihuana.

[19]

Counsel
        told the trial judge they had interviewed several people who had stated
        that Molsberry was, to quote the trial judge's reasons, "a bully,
        a liar, a thief, a fence, a fraudster, a drug user and a drug trafficker."  However,
        despite enquiries from the Court, counsel elected not to call any of these
        individuals.  Instead, they wished to call Molsberry himself "and
        to cross-examine him on the matters they were told about and on other
        matters, for the purpose of showing that he is not a person upon whom
        the police
      should or could rely."

[20]

The
        trial judge stated, however, that the issue before him was not whether
Molsberry
was
        reliable, but "whether the police had placed before the authorizing
        judge evidence upon which he could have concluded that there were reasonable
      grounds."  In his words:

Thus, if the evidence before the authorizing judge was sufficient for
        that purpose, this aspect of the attack of the validity of the authorization
        will fail unless counsel can demonstrate that the authorizing judge was
        misled in some material way, for example, by fraudulently or negligently
        misleading statements in the affidavit, or by the omission of some material
      fact or facts.  [para. 9]

Smith J. relied in this regard on the passage from p.
        1465 of
Garofoli
set out earlier in these reasons, as well
        as on
R. v. Araujo
,
supra
, and
R. v. Hiscock
(1992)
        72 C.C.C. (3d) 303 (Que. C.A.).  He also cited the majority judgment
        of the Ontario of Court of Appeal in
R. v. Durette
(1992) 72
        C.C.C. (3d) 421 (rev'd on other grounds in
Farinacci v. The Queen
[1994]
        1 S.C.R. 469, 88 C.C.C. (3d) 1), and the decision of this court in
R.
        v. Barzal
(1993) 84 C.C.C. (3d) 289, in support of the principle
        that an accused "may not expect to have access to the police file
        or to embark on a fishing expedition to test the reliability of the informant" without
        some "assurance" as to the utility of such evidence.  As stated
      in
Barzal
:

In this case the accused wanted access to the debriefing notes
        in order to test the reliability of the informers. A detailed inquiry
      into police files is not required for that purpose. Sufficient reliability
      is
        established, or is not established, by reference to the material filed
        in support of an application for an authorization. The right to make
      full answer and defence in this context is a right to the disclosure of
      material
        which had been before the authorizing judge. It is not a right to embark
        on a fishing expedition of all the material in the possession of the
      police. Such an inquiry could be endless, including access to police files,
      cross-examination
        of police officers, cross-examination of informants (which is not permitted;
Garofoli
at
        p. 197), and consideration of the details of each case in which the informer
      had been involved. [at 300-301]

The trial judge was not satisfied that cross-examination
        would elicit evidence relevant to the issue he had formulated, observing
        that "at best, it
might
shed light on that issue." (My
        emphasis.)  He therefore declined to permit Mr. Molsberry to be cross-examined
        in aid of the application for leave to cross-examine Detective Richards,
        and on the issue of the validity of the authorization generally.  (para.
      16.)

[21]

Smith
        J. then turned to the attack made by the defence on the credibility and
        reliability of the deponent himself, Detective Richards.  In this regard,
        counsel had argued that para. 11 of the affidavit (quoted above at para.
        11) was misleading in that Molsberry had been tested by polygraph only
        to determine whether he was a "double agent" and not to determine
        his truthfulness generally.  The trial judge agreed that para. 11 was misleading "to
        the extent" that it would lead the reader to believe that Sergeant
        Fraser's belief in Molsberry's truthfulness was based on the polygraph
        examination.  (Although the police had intended to re-examine Mr. Molsberry
        by polygraph with respect to his truthfulness in connection with the investigation,
        it was later decided that because the effectiveness of polygraph testing
        diminishes on subjects who have been exposed to testing already, he would
        not be tested further.)  The trial judge summarized his findings with
      respect to para. 11 as follows:

On his polygraph
        examination report under the heading "Remarks", Sergeant Fraser
      said this:

During the pre-test phase of the test, the subject was asked if he was
        presently selling cocaine.  Due to the spontaneous denial, body language,
        and sentence formulation, I believe he was being truthful when he stated
      he is not selling cocaine at the present time.

There is no reference
        on the polygraph examination report to any opinion of Sergeant Fraser
      as to Molsberry's truthfulness in regard to the investigation.  Moreover while
        the degree of spontaneity of Molsberry's response and his body language
        would not be apparent from the transcript, his answers on this point display
        no sentence structure.  He gave three answers on this topic, and two are
      described as inaudible, and the third is "No".


This part of the affidavit, accordingly, appears to be calculated
          to mislead.
Moreover, while Detective Richards does not, in paragraph
          11, found his opinion as to Molsberry's truthfulness expressly on Sergeant
          Fraser's opinion, the juxtaposition of his statement with his report
          of Sergeant Fraser's opinion is curious.  Detective Richards had already
          deposed, in paragraph 2 of the affidavit, to his belief in all matters
          set out in the affidavit on information from others, and the assertion
          in paragraph 11 was, therefore, repetitive.  In the circumstances, it
          appears that the statement in paragraph 11 was designed to lead to the
          inference that Detective Richards' belief in the truthfulness of Molsberry
          was supported by the result of the polygraph test.  I will therefore
          assume for present [purposes], that Detective Richards intended to invoke
          Sergeant Fraser's opinion as part of the basis for his belief [in] the
        reliability of Molsberry's information.  [paras. 20-1; emphasis added.]

[22]

In
        this court, counsel for the appellants focussed on the word "calculated" and
        interpreted the foregoing as a finding that Detective Richards had intentionally
        deceived the authorizing judge about the significance of the polygraph
        test results in relation to his opinion as to Molsberry's truthfulness
         i.e., that the affidavit was tantamount to fraudulent in this regard.  When
        asked about the meaning of the word "calculated", counsel noted
        that the
Oxford English Dictionary
(2nd ed., 1989) gave
        as the first meaning of the word, "reckoned, estimated, devised with
        forethought", and as the second meaning "fitted, suited, fit,
        apt, of a nature or character likely to."  I note as well that
Webster's
        Revised Unabridged

Dictionary
(1998) gives as one
        definition, "likely to produce an intended effect,
whether intended
      or not
."

[23]

Canadian
        case authority strongly supports the latter definition.  In
Peggy
        Sage Inc. v. Siegel Kahn Co
. [1935] S.C.R. 539, for example,
        the Court considered the meaning of the phrase "calculated to deceive" in
      the
Trade Mark and Design Act
, R.S.C. 1927, c. 201, and stated:

... even if the respondent did not intend to deceive, and if actual deception
        has not been proven, the registration should be expunged, if, in the
      opinion of the court, it is calculated to deceive, which does not mean "capable
        of being used to deceive" but that, by its resemblance to the appellants',
        it is likely to deceive the public in the course of its legitimate use
      in the trade.  [at 549]

(See also
Hudson Bay Co. v. Beaumark Mirror Products
            Inc.
(1987) 13 C.I.P.R. 86 (Fed. T.D.), at 91; and in the criminal
            context,
R. v. Hill
(1976) 33 C.C.C. (2d) 60, at 67-8,
            and
R. v. Froese
(1980) 54 C.C.C. (2d) 315, at 324, both
          decisions of this court.)

[24]

The
        trial judge in the case at bar obviously considered that Detective Richards
        had overstated the degree to which Molsberry's truthfulness was supported
        by the polygraph and by Sergeant Fraser's opinion.  I do not agree, however,
        that Smith J. found that Detective Richards had deliberately misled the
        authorizing judge.  The trial judge (not having seen the deponent on the
        stand at this point) did not make any express finding of fraud or anything
        tantamount thereto, and I would expect that had he intended to do so, he
        would have stated such a finding in unambiguous terms.  Moreover, he stated
        at para. 37 of his ruling that the defence had not "referred to any
        evidence that would falsify anything set out in the affidavit" and
        that the authorizing judge had not been misled.  On this basis, he distinguished
R.
        v. Monroe,
supra
, where "the authorizing judge had
        been deceived" as to two of three factors on which the reasonable
        grounds for the interception authorization had been based.  Reading his
        ruling as a whole, it appears to me, then, that the failure of the trial
        judge to find an intention to mislead makes it likely he considered that
        the misleading paragraph was the result of mistake or misunderstanding
      on Detective Richards' part about Sergeant Fraser's conclusions.

[25]

Smith
        J. did, however, give the defence the benefit of the doubt by setting
      aside para. 11 of the affidavit and proceeding to determine whether what
      remained
        in the document could have provided a basis for granting the wiretap
      authorization.  After
        quoting the "special requirements" identified at pp. 1456-7
        of
Garofoli
for
        the establishment of reasonable grounds on the evidence of informants,
        the trial judge reviewed the balance of Detective Richards' affidavit,
        highlighting the degree of detail of Molsberry's information and other
indicia
of
        his reliability  including the fact that many of his statements were
        against his penal interest and were accompanied with details which "by their
        nature, tend to lend credibility to his report"; that he had a motive
        (self-protection) for assisting the police; and that some of what he had
        told them was corroborated by their own observations, e.g. of Molsberry's
        injuries after he was allegedly assaulted by associates of the appellants.  In
      summary, the trial judge said:

... there was, on the "totality of the circumstances", evidence
        upon which the authorizing judge could have concluded that Molsberry's
        information was sufficiently reliable to establish reasonable grounds.  To
        put it the other way, it is not possible to say that there was no reliable
      evidence before him capable of supporting that finding.  [para. 33]

[26]

Last,
        the trial judge asked himself whether, if the authorizing judge had "known
        that paragraph 11 of Detective Richards' affidavit was calculated to mislead",
        he could still have reasonably acted on the remaining evidence contained
        in the affidavit.  On this point, he noted that the authorization had been
        granted by an experienced judge who would have been "alive to the
        many fallibilities inherent in the expression of opinions on credibility
        based upon the allegedly scientific operation of the polygraph."  He
      continued:

I cannot accept that he would have put any significant weight on the
        opinions set out in paragraph 11.  His conclusion that reasonable grounds
        had been shown to justify granting the authorization must have been based
        primarily, if not wholly, on the other indicia of reliability I have mentioned.  [para.
      35]

[27]

After
        also finding that Molsberry had voluntarily consented to the wiretap, Smith
      J. dismissed the appellants' application to cross-examine Detective Richards.

On Appeal

[28]

The
        appellants embarked upon their submissions in this court by conceding that
        the onus is on the accused to show why he or she should be permitted to
        cross-examine or lead other evidence on a
voir dire
for the purpose
        of attacking an authorization or search warrant.  From this, and the
        fact that we are here concerned with
Charter
values  the
        right to be free from unreasonable search and seizure and the right to
        make full
        answer and defence to a criminal charge  the appellants say it follows
        that the onus should not be a heavy one.  They also note that on many
        occasions, appellate courts, including the Supreme Court of Canada, have
        recognized
        the principle that the public must be protected from abuses of power
        by the police, who must observe "
Charter
exigencies":
        see
R. v. Buhay
, 2003 SCC 30, at para. 70.  Further, whilst
        acknowledging that the legal system and criminal trials in particular must
        have some semblance of efficiency, Mr. Westlake submitted that since the
        Crown is permitted to lead its case in the way it thinks fit "no matter
        how long it takes" (an assertion that one hopes might be debated),
        it is "unfair" to deny the defence the opportunity to carry out
        a "truth-seeking" inquiry at this stage of the proceedings.  (Counsel
        did acknowledge that it would have been open to them to question Detective
        Richards in the course of the trial proper concerning the matters deposed
        to by him in the affidavit, but for reasons that are unclear, this was
      not done.)

[29]

Appellants'
        counsel also submitted that in order to protect their clients'
Charter
rights,
        the trial judge was bound to allow the cross-examination at least of
        Detective Richards.  Only then could the Court determine the reliability of the information
        received by him from Mr. Molsberry and recorded in the affidavit, and the
        reliability of the detective himself.  In their submission,
Garofoli
should
        not be interpreted as requiring the application of a "bright line" test.  It
        would generally be fairer, Mr. DelBigio said, for trial judges to allow
        cross-examination as a matter of course, but to "control" it
        appropriately.  In any event, if a "basis" had to be shown, they
        had done so in the form of the "misleading" para. 11 of the
      affidavit.

[30]

As
        much as counsel might wish for a more precise "standard" than
        was established in
Garofoli
as to when cross-examination
        of a deponent should be permitted in a
voir dire
aimed at challenging
        an authorization order, we are bound by the Supreme Court's decision.  Moreover,
        in my respectful view, little would be accomplished  and the matter might
        be further complicated  if we were to try to suggest some other phraseology
        or "test" in substitution for that used by Sopinka J.  Nor
        would it be desirable, in my view, to permit cross-examination as a matter
        of
        course wherever defence counsel wish to attack the credibility of an
        informant or deponent in a
voir dire
.  The majority of the Court
        in
Garofoli
implicitly
      rejected that option.

[31]

Sopinka
        J. also made it clear, in the passage quoted at the outset of these reasons,
        that a basis must be shown for the view that cross-examination will elicit
        testimony tending to discredit
not the credibility of the informant
        or deponent
, but the existence of one of the pre-conditions to the
        issuance of the authorization.  He stated that the granting of leave
        is best left to the discretion of the trial judge, who is aware of how
        the
        dynamics of the various
Charter
principles and other relevant
        factors are playing out in the trial before him or her.  To quantify or
        qualify the "basis" that must be shown would in my view unduly
        restrict this discretion and would imply that the granting or refusal
        of an application to cross-examine is or can be more precise than it
      is.

[32]

Aside
        from their general submissions, the appellants pointed to what they considered
        to be specific errors in the trial judge's reasoning, notwithstanding
      his reference to
Garofoli
and other decisions applying it
.
Mr.
        DelBigio took issue with the statement at para. 9 of the ruling that "the
        issue, however, is not whether Molsberry was in fact reliable, but whether
        the police had placed before the authorizing judge evidence upon which
        he could have concluded that there were reasonable grounds."  In Mr.
        DelBigio's submission, the deponent was required, as a pre-condition to
        demonstrating that "there are reasonable grounds to believe that an
        offence ... has been or will be committed", to satisfy the
authorizing
        judge
that the
informant
(or more properly in this case, the
      agent) was "reliable".

[33]

I
        believe this argument misstates the purpose of the affidavit sworn in
      support of an application under s. 184.2.  In many cases of this kind, the informant
        or agent will be a person of questionable character who is involved in
        the very operations which are the subject of the proposed investigation.  That
        was certainly the case with Mr. Molsberry.  It is well for the police to
        maintain a sceptical attitude with respect to information supplied by such
        persons, and the case law requires that they do so.  Thus evidence of a
        tip from an informer by itself is generally insufficient to establish reasonable
        and probable grounds.  All the circumstances, including the degree of
        detail of the information proffered, past experience of the police with
        the informer,
        and other objective circumstances tending to corroborate or not to corroborate
        the information must be looked at: see
R. v. Greffe
[1990]
      1 S.C.R. 755.

[34]

In
        the case at bar, the affidavit set out not only the information received
        by the police from Mr. Molsberry, but also information received from
      three other informants, some corroborative evidence obtained from police
      surveillance,
        and the other circumstances reviewed by Smith J. at paras. 24-33 of his
        ruling.  As the earlier discussion of
Garofoli
makes clear,
        it was not for the authorizing judge to decide whether he believed Mr.
        Molsberry was a truthful person or was telling the truth on this occasion
         that determination was for the jury on the evidence adduced at trial.  The
        question at this stage was whether on the evidence before him, the requirements
        of s. 184.2 had been met.  Thus I cannot agree that the trial judge erred
      at para. 9 of his ruling as the appellants contend.

[35]

As
        has already been mentioned, another argument advanced by the appellants
        proceeded on the basis that Detective Richards had
intentionally misled
the
        authorizing judge at para. 11 of his affidavit.  Counsel contended that
        by itself, this fact was as a matter of law sufficient to "open the
        door" to cross-examination of the officer.  Mr. DelBigio urged us
        to adopt the approach taken by the Ontario Superior Court of Justice
        in
National
      Post v. Canada
[2002] O.J. No. 4752.

[36]

National
            Post
arose in very different circumstances than
            the case at bar: it came to court by way of an application for
certiorari
and
            an order quashing a general warrant and assistance order which had
            been obtained by the R.C.M.P. in the course of an investigation.  The
            recipient of the order, the National Post, sought in a preliminary
            motion to cross-examine the R.C.M.P. officer who had sworn the affidavit
            in aid of the application.  The motions judge, Benotto J., noted
            that the Supreme Court of Canada had in
Garofoli
defined the
            test for leave to cross-examine the affiant in the circumstances, which
          she stated as follows:

In short, the trial judge should grant leave where it is necessary to
        make full answer and defence.
A basis must be shown
by the accused
        that the cross-examination will elicit testimony tending to discredit
        the existence of one of the pre-conditions to the authorization.  When permitted,
        the cross-examination should be limited to questions that are directed
        to establishing that there was no basis upon which the authorization could
      have been granted.  [para. 7; emphasis added.]

However, after noting that the applicants bore the burden
        of proving a
Charter
breach or breaches "on the balance
      of probabilities", she continued:

The applicants should
      have access to evidence that will assist them.

If the cross-examination
will
elicit testimony tending to
        discredit the existence of one of the preconditions to the authorization
        it will be allowed.  The issuing justice was to consider the best interests
        of the administration of justice.  Where media warrants are concerned,
        it is of particular importance that the justice consider the effect of
        the search on the ability of the organization to fulfill its function as
        a news gatherer and disseminator.  This, as is oft stated, requires a fine
        balancing process where all factors are taken into consideration and properly
        weighed....  I am satisfied that
cross-examination may show facts which,
        if known by the issuing justice, may have led to a different result.
I
        therefore find the test has been met and cross-examination is allowed.  [paras.
      11-12; emphasis added.]

Mr. DelBigio seized on the word "may" in the
        penultimate sentence and submitted that applying this "test" in
        the case at bar, it was enough for him to satisfy the reviewing court
        that the cross-examination of Detective Richards
might
have shown that
      he or Molsberry was not credible.

[37]

In
        my respectful view, this argument ignores the clear instruction of
Garofoli
and
        essentially seeks to justify a "fishing expedition".  Any cross-examination "may" turn
        something up; but according to
Garofoli
, cross-examination
        does not arise as a matter of right.  Counsel here did not provide any
        evidence, submissions or "will-say" statements to the trial judge
        tending to discredit the existence of one of the preconditions for the
        order made under s. 184.2.  They provided only speculation that Mr. Molsberry
        was not a trustworthy person - hardly a surprising suggestion, but one
        that was beside the point.  If their speculation were a sufficient "basis",
        cross-examination would be a matter of course in every case and the balance
        struck by the Supreme Court in
Garofoli
between the rights
        of an accused and the efficient use of judicial resources would be abrogated.  To
        the extent that the Court in
National Post
may be taken
        to have suggested a different "test", I would disagree with
      it.

[38]

Further,
        contrary to the appellants' argument, the possible existence even of
      fraud (and I do not say that fraud existed or was found to exist in this
      case)
        does not automatically "open the door" to cross-examination.  Again,
Garofoli
makes
        it clear that the sole impact of fraud, misleading evidence or non-disclosure "is
        to determine whether there continues to be any basis for the decision of
        the authorizing judge."  (at 1452.)  The same point was made more
        recently in
Bisson
,
supra
, where a trial judge was
        found to have erred in vitiating a wiretap authorization because a police
        officer had deliberately misled the authorizing judge by failing to disclose
        a retraction by the son of one of the alleged conspirators, and failing
        to disclose the son's age.  The Supreme Court upheld the Quebec Court
      of Appeal's ruling, stating:

As stated in
Garofoli
...
errors in the information
          presented to the authorizing judge, whether advertent or even fraudulent,
          are only factors to be considered in deciding to set aside the authorization
and
          do not by themselves lead to automatic vitiation of the wiretap authorization
          as was done by the trial judge.  The trial judge should have
          examined the information in the affidavit which was independent of the
          evidence concerning [the son] in order to determine whether, in light
          of his finding, there was sufficient reliable information to support
        an authorization.  [para. 2; emphasis added.]

I also note the comments of Proulx J.A. for the Court
        of Appeal in
Bisson
,
supra
, whose reasons were approved
        generally by the Supreme Court of Canada on appeal, concerning the effect
        on the balance of the affidavit of non-disclosure, fraud or misleading
      evidence.  He reasoned:

Since the approach
        to be taken by the reviewing judge consists of asking himself about the
        consequences of the non-disclosure, fraud or misleading evidence, how
      must one assess their effects on the affidavit as a whole?
The misleading
        element which is established during the review can very well, as in the
        present case, only go to some of the facts set out in the affidavit: if
        it were possible to overcome its effects at the time of the review, nothing
        prevents the remainder of the affidavit which exists independently of the
        correction, from being quite sufficient to permit the conclusion that the
        authorizing judge could have granted the authorization.
In accordance
        with the above-mentioned principles, the remainder of the affidavit must
        be assessed using the ''Garofoli'' test:
Could the judge have granted
        the authorization on the basis of the remainder of the affidavit, once
      the affidavit is purged of its erroneous elements?


I would refer
        to what this court decided in
Fafard
and
Hiscock
where it
        held that
the remaining facts cannot be ignored despite the demonstration
      of materially different facts or other elements in the nature of non-disclosure.

This is what, even before the decision of the Supreme Court in
Garofoli
,
        certain judgments had adopted as the appropriate approach.  [at 456-7;
      emphasis added.]

[39]

The
        final specific error advanced by the appellants under this rubric was that
        the trial judge had effectively applied
Franks v. Delaware
,
        438 U.S. 154 (1978), which was rejected by the Supreme Court of Canada
        in
Garofoli
.  The conditions set down in
Franks v.
        Delaware
for cross-examination of the affiant were summarized by
        Watt J. in
R. v. Parmar
(1987) 37 C.C.C. (3d) 300 (Ont. H.C.J.)
      as follows:

(i)      there must be specific allegation(s)
        of deliberate falsehood or reckless disregard for the truth in respect
      of specific aspects of the supportive affidavit;

(ii)     there must be prima facie proof
        by the applicant in admissible form, of the substance of what is alleged
      to contravert the specific contents of the affidavit, and

(iii)

it
        must be made to appear that, if the material impugned as false or in
      reckless disregard of the truth is set aside, that which remains is insufficient
        to sustain the issuance of the impugned order under s. 178.13(1) or 178.13(4),
      as the case may be.  [at 344]

[40]

In
Garofoli
,
        Sopinka J. found this approach overly restrictive and noted that it led
        to the vicious circle in which "the appellant cannot cross-examine
        unless he provides proof of deliberate falsehood or reckless disregard
        for the truth, and he cannot establish deliberate falsehood or reckless
        disregard for the truth unless he can cross-examine."  (at 1464.)  The
        Court in
Garofoli
therefore enunciated a less onerous test
        not dependent on proof of fraud or reckless disregard for the truth,
        but balancing the right of cross-examination with the avoidance of "prolixity".  As
        has already been seen, that balance lay in vesting the trial judge with
        a discretion to permit cross-examination where in his or her opinion a "basis
        [has] been shown 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."  (at 1465.)

[41]

In
Vukelich
,
supra
,
        McEachern C.J.B.C. for this court suggested some means by which counsel
        may meet this onus in practice: he noted that counsel's statements might
        be a "useful first step in persuading the judge to order a
voir
        dire
" and that if such statements were found to be insufficient, "a
        more formal approach, involving affidavits and possibly an undertaking
        to adduce evidence" might be required.  (at 201.)  The Court also
        suggested that where it is alleged that the affidavit is deliberately false
        and misleading in some respect related to the essence of the case (and,
        I would add, a "basis" has been shown for such an allegation),
        a trial judge would ordinarily be persuaded to "direct a
voir dire
,
        and probably to provide an appropriate
Charter
remedy." (at
      203.)

[42]

I
        agree with this observation, which is consistent with the role of the court
        in preventing abuses of the power of the police to obtain intercept authorizations
ex
        parte
.  The Court in
Vukelich
did not vary, however,
        from the requirements of
Garofoli
, or constrict the trial
        judge's discretion as described in
Garofoli
.  In the words
      of McEachern C.J.B.C.:

... it does not follow that an accused is always entitled as of right
        to a voir dire in the course of a criminal trial in order to challenge
        the constitutionality of a search. The trial judge must control the course
        of the proceedings, and he or she need not embark upon an enquiry that
        will not assist the proper trial of the real issues. I reach that conclusion
        because it is clear from cases such as [
R. v.
]
Grant
[[1993]
        3 S.C.R. 223] and
Garofoli
that a warrant remains valid if there
        is enough left in the supporting affidavit to support the issuance of the
        warrant after all the impugned portions are deleted. In other words,
the
        trial judge does not revisit the application for the warrant
ab initio
in
        the light of subsequent information, but rather considers whether
,
        as stated in
Garofoli
at 1452, "...
there continues to be
        any basis
for the decision of the authorizing judge" to issue
      the warrant.  [at 202; emphasis added.]

In this connection, I note the suggestion made by Chief
        Justice Finch in his concurring reasons in the case at bar that whether
        there remains "a basis" for the authorization is to be determined
        only
after
the threshold has been met and a
voir dire
has
        been held.  I agree that once "a basis" for cross-examination
        has been shown, a
voir dire
is in order.  But the question of whether
        that threshold has been crossed in the first place is a discretionary one
        that may well include consideration of the "other evidence" supporting
        the deponent's statements  in this case, the officer's reliance on Molsberry's
        information.  I see no reason to burden the trial with a
voir dire
if
        the other evidence placed before the authorizing judge supports the granting
      of the authorization.

[43]

In
        the final analysis, I do not agree with the appellants that it is open
        to us to interfere with the trial judge's refusal of their application
        to cross-examine either Detective Richards or Mr. Molsberry in order to
        attack the validity of the interception order made under s. 184.2 of the
Criminal
        Code
.  Smith J. carried out a careful application of
Garofoli
and
        exercised his discretion in a judicial manner consistent with the
Charter
principles
        and binding authority underlying the application.  He found that a "basis" for
        cross-examination had not been shown, and that even without para. 11, the
        decision of the authorizing judge was supportable.  I see no error in that
      finding.  I would not accede to this ground of appeal.

"JURY TAINTING"

[44]

The
        second ground of appeal is that the trial judge erred in dismissing an
        application made by the defence for a mistrial.  The application was the
        result of counsel's becoming aware (about two weeks into the trial) that
        when the jury were being empanelled, they may have heard a remark made
        by an unrelated person to the effect that the appellants were members of
        the "Hell's Angels".  At the start of the trial, all counsel
        and the trial judge had agreed that references to the Hell's Angels would
        be avoided, and the witnesses had been instructed accordingly.  In accordance
        with this agreement, no questions were asked when the jury was chosen
      about any prejudice they might harbour concerning Hell's Angels.

[45]

It
        may be noteworthy that on the day court resumed after jury selection,
      one of the jurors was discharged after coming forward and telling the Court
        that her sister was "living with a fellow common-law, who is a Hell's
        Angels member."  When asked by the Court whether she made some connection
        between the Hell's Angels and the accused, she replied that she did not
        and then added "Well, other than what [I] revealed to you, there is
        no connection otherwise, and I don't know the accused.  I don't know the
        organization other than my sister being involved."  She said she had
        not discussed the matter with any other members of the jury.  A long discussion
        then took place between the trial judge and defence counsel, who wished
        to cross-examine the juror directly on the linkage she had made between
        the Hell's Angels and the accused.  Finally, the juror was brought back
        into the courtroom and was asked by the trial judge "why it is that
        the fact that your sister lives with a Hell's Angel has caused you to come
        forward and bring that information to our attention?"  She replied
        that she had told her sister she was on a jury, the sister said she knew
        one of the accused, and that aside from her sister's situation, she had
        no other reason to believe that the accused might be associated with the
        Hell's Angels.  Again, she confirmed that she had not mentioned this information
      to any other member of the jury.  She was released from duty.

[46]

Mr.
        Westlake, counsel for the appellant Pires, filed two affidavits in connection
        with the mistrial application.  One was sworn by a woman ('L.K.') who deposed
        that she was a close friend of the daughter ('S.Q.') of a juror in another
        case.  L.K. and S.Q. had spoken on September 7.  S.Q. had mentioned that
        her father was on a panel called to court for jury duty on September 5,
      2000.  L.K.'s affidavit continued:

THAT she advised me that her father had told her that while he was at
        the court house and was waiting outside a courtroom that he overheard someone
        saying that there was a Hell's Angels case happening in the courtroom next
      door.

[47]

L.K.
      spoke to the father about the incident and he confirmed to her:

a.    That he was
      on a different jury panel that was next door to his courtroom, #54;

b.    That his jury
      panel had finished early because they only had one jury to pick;

c.    That some members
        of his panel were asked to stay because there might not be enough people
      for the panel next door in courtroom 55;

d.    That while he
        was sitting outside courtroom 55 waiting, a large heavy-set Caucasian male
        wearing glasses stated that "the reason it's probably taking so long
      is that the guy's a Hell's Angel";

e.    That this comment was spoken in front of "tons of people" of
        about 80 or so, who were "sitting around on the couches and all along
      the ledge" outside the courtroom.

(I emphasize that the father was not a juror in the
      case at bar.)

[48]

The
        second affidavit was sworn by 'L.J.', who had also been called for jury
        duty on September 5 and was eventually selected to serve in the present
        case.  He was thereafter released because he thought he had gone to school
        with Mr. Lising, although at that time the other student had gone by another
        name.  L.J. deposed, however, that his application to be released had also
        been prompted by a concern which he had not mentioned to the Court at the
      time.  His affidavit continues:

5.    The incident
        that I am referring to is that after we had been asked by the judge to
        leave the court room, and before I was picked as a juror, I was waiting
        outside of the doors of the courtroom.  I was waiting with a large crowd
      of people who I believed were also potential jurors in the case.

6.    During
        this time that I was waiting, there was a large group of people standing
        in the same area that I was in and I overheard one of the people in the
        group say that the case was taking so long because the accused in the case
        were Hells Angels.  I was able to hear this clearly though I was not
        a part of that group and the comment was spoken in a voice that was loud
        enough for many other people in the jury panel, who were also in the
        area,
      to have heard as well.

7.    I understood this comment to refer to the accused,
        Francisco Pires and Ronaldo Lising, whose jury I was eventually selected
      to be on.

This information led L.J. to feel more certain that
        he had gone to school with Mr. Lising, because he had heard that that
      person had changed his name and become a Hell's Angel.  L.J. added in his affidavit
        that "[t]he fact that the accused are Hell's Angels also caused
      me to wonder whether I could be open-minded about the case."

[49]

Counsel
        for the Crown did not apply to cross-examine the deponents of the affidavits
        and advised the Court that he did not dispute "the substance of
      the evidence."

[50]

The
        trial was adjourned to enable counsel for the defence to gather evidence
        to the effect that other jurors had heard the "Hell's Angels" remark.  However,
        they failed to adduce any such evidence by the time the trial resumed.  Counsel
        also sought time to gather evidence of widespread bias in the community
        against the Hell's Angels' organization, but the trial judge said he was
        prepared to proceed on the assumption that "there is in this community
        a widespread belief that the Hell's Angels is a criminal organization that
        deals in illicit narcotics.  Further evidence on this point is not necessary."  (para.
      10.)

[51]

Smith
        J. dismissed the application to declare a mistrial.  He rejected the appellants'
        argument that the application should be dealt with in a manner similar
        to the manner in which challenges for cause on the ground of racial prejudice
        are now dealt with.  In the trial judge's analysis, "the effect
        of what he seeks on this application is to disqualify the whole jury
        for cause,
        and even on the
Williams
analysis [see [1998] 1 S.C.R.
        1128] urged by Mr. Westlake, that could not happen upon the mere showing
        of a
        realistic potential for partiality."  Furthermore, he noted,
Williams
had
        dealt with racial prejudice, which McLachlin J. (now C.J.C.) had described
      as resting on:

... preconceptions and unchallenged assumptions that unconsciously shape
        the daily behaviour of individuals.  Buried deep in the human psyche, these
        preconceptions cannot be easily and effectively identified and set aside,
        even if one wishes to do so.  For this reason, it cannot be assumed that
        judicial directions to act impartially will always effectively counter
      racial prejudice.  [
Williams
, para. 21]

In contrast, the trial judge said, a prejudice against
        members of the Hell's Angels would not be "a subconscious prejudice
        incapable of easy and effective detection" but would be the result
        of publicity and one that could be identified and put aside if the jury
      were reminded to be true to their oath.

[52]

The
        Court next turned to Mr. Westlake's argument that a mistrial should be
        granted where there has been the "appearance of interference with
        the jury."  In this regard, Mr. Westlake cited
R. v. Latimer
[1997]
        1 S.C.R. 217, 112 C.C.C. (3d) 193, in which Chief Justice Lamer noted that
        Crown counsel's interference with prospective jurors had violated the tenet
        of the criminal justice system (see
R. v. Sussex Justices
[1924]
        1 K.B. 256 at 259) that "justice should not only be done, but should
        manifestly and undoubtedly be seen to be done."  (para. 43.)  The
        trial judge here found
Latimer
to be of limited assistance,
        since nothing resembling a "flagrant" abuse of process or interference
      with the administration of justice had occurred.  (para. 20.)

[53]

Defence
        counsel also contended below that the relevant test for the mistrial application
        was the test that would be applied for the discharge of a juror for reasonable
        cause under s. 644(1) of the
Code
.  Counsel for the Crown
        submitted that if that was indeed the test, it would require that the applicant
        show "a reasonable possibility that the accused's right to a fair
        trial was precluded", citing
R. v. Hanna
(1993) 80
        C.C.C. (3d) 289 at 313 (B.C.C.A.).  Smith J. stated that
if
that were the
      relevant test, it had not been met.

[54]

Smith
        J. agreed with counsel for the Crown, however, that in fact a more stringent
        test applies to an application for mistrial.  It was expressed by Locke
        J.A. for this court in
R. v. Lawson
(1991) 1 B.C.A.C. 204,
      as follows:

In the course of considering the authorities given to me by counsel,
        I have had to examine cases of stays of proceedings, mistrials, and of
        abuse of process which are all in one way or another closely related to
        what I would call the requirements of fundamental justice as outlined in
        the Charter.  There is one common denominator:
all these cases say that
        these powers are to be exercised only in the clearest of cases
.  It
        is easy to see why this is.  The remedy contemplates what I will call "a
        fatal wounding of the trial process",
a wounding to the administration
        of justice which cannot be cured by remedial measures
.  [at 209;
      emphasis added.]

Lawson
was also applied more recently in
R. v. Paterson
(1998)
        122 C.C.C. (3d) 254 (B.C.C.A.), at paras. 93-98.  In that case, an article
        had appeared in a local newspaper in contravention of a publication ban
        in the course of a trial.  The trial judge dismissed an application for
        mistrial and instructed the jury to disregard the article if they had read
        it and not to read if they had not.  On appeal, this court, applying the "clearest
        of cases" criterion, saw no basis for interfering with the trial judge's
        exercise of his discretion to refuse the application.  (See also
R.
        v. R.(A.J.)
(1994) 94 C.C.C. (3d) 168 (Ont. C.A.), at 174,
per
Doherty
      J.A.)

[55]

Applying
        the test enunciated in
Lawson
and
Paterson
,
      the trial judge in the case at bar stated his conclusions thus:

Here there is
        no evidence that any member of the jury actually heard the comment in question.  At
        most it can be said that there is a reasonable possibility that one or
        more of them did.  Even if one or more members heard the comment, any prejudice
        that might be aroused by a belief by the juror or jurors that the Hells
        Angels are a criminal organization engaged in trafficking in narcotics
        can be cleansed by a reminder that they have taken an oath to decide the
        case on the basis of the evidence and that they must disregard anything
        that they may have seen or heard outside the courtroom.  I should note
        that counsel are opposed to any instruction that specifically mentions
        the Hells Angels.  While such an instruction would be more focussed,
      in my view, a more general instruction will suffice.

In the result, there has been no "fatal wounding of the trial
        process" that cannot be cured by a remedial instruction and the application
      for a mistrial is dismissed.  [paras. 27-28]

[56]

Subsequent
        to the trial in this case, the Supreme Court of Canada dealt in
R.
        v. Khan
[2001] 3 S.C.R. 823 with a mistrial application resulting
        from the fact that in the course of its deliberations, the jury had been
        provided with a transcript which unfortunately also contained a record
        of matters discussed in the jury's absence during the trial.  The record
        included submissions by defence counsel referring to comments by the accused
        that had been ruled inadmissible.  Much of the Supreme Court's reasoning
        dealt with the various elements of s. 686 of the
Code
,
        but in connection with the mistrial application, the Court framed the
        question
        before it as "whether it was likely that the exposure by the jury
        to the tainted transcripts could have affected the jury to the point that
        the entire trial was compromised and that no remedy other than a new trial
      was available."  (para. 32.)

[57]

For
        purposes of her analysis, Arbour J. for the majority proceeded on the
      assumption that the jury had read the record before it and "understood that counsel
        for the appellant was concerned that the jury should not find out that
        his client had made statements that the court had ruled inadmissible; no
        more, no less."  (para. 34.)  She concluded that the trial judge had
      not erred.  In her analysis:

I also think that this is what the trial judge
        understood, and that is why she cautioned the jury exactly as she did.
        She did not identify specifically the passages at issue, so as not to
      aggravate the damage, if any, but she clearly instructed the jury to disregard
      references
      to all matters that were not properly in evidence before them.

The trial judge was obviously concerned with the
          effect and consequences of what had transpired and she took seriously
          the application for a mistrial. I share that concern. However, in my
          view, she made no error when she exercised her discretion to deny the
          motion for a mistrial, nor did she err in declining to enter a mistrial
          after the jury had returned its verdict.
The trial judge was in a
          privileged position to assess the possible impact of the mishap on the
          jury and the effectiveness of the sharp warning that she issued. There
          is no basis upon which I could say that she was wrong in that fine judgment
          call.
The information before the jury was at most an innuendo. At
          the very end of a murder trial, the jury would have come to appreciate
          the existence of rules of evidence that govern the relevant materials
          upon which they are called to make a decision. Taking the case at its
          highest from the appellant's point of view,
I believe that the admonition
          issued by the trial judge to the jury was sufficient to remedy any ill
        effect that the unedited transcripts might have had on the jury.
[paras. 36-37; emphasis added.]

[58]

Applying
        these principles to the case at bar, and mindful of the "privileged
        position" of the trial judge to assess the impact of what they may
        have heard and the impact of his admonitions to them, I am not persuaded
        that Smith J. erred in rejecting the application for mistrial.  The remark,
        which may or may not have been heard by one or more jurors, was in the
        circumstances of this case less likely to be harmful than the jury's
        reading, in the jury room, material that was not in evidence, as in
Khan
.  More
        importantly, as Smith J. observed, this was a matter that lent itself
        to being remedied by appropriate warnings, which he gave to the jury
        both
        at the time of the mistrial application and in the course of his extensive
      (and unchallenged) charge at the end of the evidence.

[59]

It
        is not necessary for me to decide whether the Court's comments in
Khan
are
        entirely consistent with the standard referred to in
Lawson
and
Paterson
,
supra
,
        or whether the lesser standard referred to in
Hanna
, which
        the trial judge also found was
not
met, is more appropriate.  It
        may be that the requirement for a "fatal wounding of the trial process" in
        the "clearest of cases" is simply a more colourful expression
        of the principle enunciated in
Khan
that if it was "likely
        that the exposure by the jury to the tainted information could have affected
        the jury to the point that the entire trial was compromised and that no
        remedy other than a new trial was available", the mistrial must be
        granted.  In any event, having found neither a "reasonable possibility" that
        the accused's right to a fair trial was precluded, nor a "fatal wounding" of
        the trial process, the trial judge cannot be said to have erred in dismissing
      the application.

THE SEVERANCE APPLICATION

[60]

The
        final ground of appeal is that the trial judge erred in denying the appellants'
        request for the severance of count 1 (which charged both appellants with
        conspiracy to traffic in cocaine) from the substantive counts of trafficking
        in cocaine and possession of the proceeds of trafficking.  As well, counsel
        for Mr. Lising, supported by counsel for Mr. Pires, applied unsuccessfully
        to sever counts 6 and 7 from the others.  It will be recalled that counts
        6 and 7 charged only Mr. Lising with possession of narcotics for the purpose
        of trafficking.  These counts were the result of the discovery of items
        in the course of a search of his vehicle by the police following his
      arrest.

[61]

On
        the latter application, Mr. DelBigio argued that if counts 6 and 7 were
        severed, they would "better allow Mr. Lising to provide evidence ...
        without being subject to cross-examination on a very, very broad range
        of issues."  At the same time, counsel acknowledged that it would
        be open to the Crown to lead evidence concerning the circumstances of
      Mr. Lising's arrest and the search of his vehicle.

[62]

In
        support of the application to sever the conspiracy count, counsel cited
        the comments of Branca J.A. in
R. v. Kelly
(1967) 1 C.C.C.
        215 (B.C.C.A.), noting that the "impropriety" of joining counts
        of conspiracy with substantive counts had been the subject of adverse judicial
        comment both in Canada and England over a "great number of years".  Branca
        J.A. referred to the judgment of Sankey J.,
per curiam,
in
R.
        v. Luberg
(1925) 19 Cr. App. R. 133 at 136-7, who observed that
        the practice places defendants in difficulty because "it renders
        admissible evidence of what one prisoner says in the absence of the others,
        because
        if they are all conspirators, what one of [them] says in furtherance
        of the conspiracy would be admissible evidence, even though it was said
        in
      the absence of the other conspirators."

[63]

The
        trial judge did not accede to these arguments.  He began by noting, correctly,
        that the order sought was a discretionary one and that the burden lay on
        the accused to show on the balance of probabilities that the interests
        of justice required severance.  He referred briefly to
Kelly
and
        various cases following it, and noted that the potential for unfairness
        in cases of this kind arises from the risk that although hearsay evidence
        is properly before the jury on the conspiracy counts, the jury might
        use it improperly to find guilt on the substantive counts.  On the other hand,
        he observed that Canadian courts had affirmed the "strong policy reasons" in
        favour of the joint trial of persons charged with offences arising out
        of the same event or series of events: see
R. v. Crawford
[1995]
        1 S.C.R. 858, and
McFall v. The Queen
[1980] 1 S.C.R. 321,
      48 C.C.C. (2d) 225 at 239,
per
Estey J.  Smith J. then continued:

The Crown's
        case here is that the two co-accused were engaged in a common design and
        a common plan in relation to Counts 2 through 5.  It is therefore proper
        that they should be tried on a joint trial on those counts.  The fact
        that there has been no application for separate trials underlines that
      point.

The significance
        of this reality for present purposes is that the evidence of the acts and
        statements of alleged co-conspirators is admissible on Counts 2 through
        5, whether Count 1 remains on the indictment or not.  The judgment of
        Mr. Justice Taschereau for the majority of the Supreme Court of Canada
        in
Rex
      v. Koufis
[1941] S.C.R. 481 contains the following apt passage:

It is well settled law that any acts done or words spoken in furtherance
        of the common design may be given in evidence against all.  This rule
        applies to all indictments for crime, and not only when the indictment
        is for conspiracy,
        and it also applies even if the conspirator whose words or acts are tendered
      as evidence has not been indicted.

I have omitted the
      citations that appear in that passage.

Mr. DelBigio
        cautioned against applying that principle strictly on the basis, as I
      understood him, that
Koufis
is an old case and that the principle
      has been qualified by subsequent cases.  However, the vitality of the principle
        was recently confirmed in
R. v. Lord
, [1995] 1 S.C.R. 747
        (S.C.C.), where Mr. Justice Sopinka, speaking for the court, said this
      at paragraph 1:

We see no reason to depart from the jurisprudence of this Court that
        the co-conspirator's exception to the hearsay rule applies to substantive
        offences in which evidence is introduced that acts were done or words spoken
      in furtherance of a common design to commit the offence.

Accordingly, severing the conspiracy count from the indictment
        will not overcome the potential problem that the jury might misuse the
        evidence admissible on that count only.  That problem will have to be overcome
      by a careful instruction to the jury.  [paras. 7-10]

[64]

The
        trial judge considered two other reasons normally advanced for not joining
        conspiracy counts with substantive accounts  namely, that the length
      and complexity of the case may be increased, and that the trial judge must
        instruct the jury on the proper use of the evidence and the jury must
      in
        turn follow his or her instructions.  In this case, however, severing count
        1 would not make the trial shorter and less complex because the same evidence
        would be led on the substantive counts 2 through 5.  With respect to counts
        6 and 7, the trial judge noted they referred to acts taking place within
        the same periods specified in counts 1, 4 and 5.  Thus he saw a close "factual
        and legal nexus between these counts and the others on the indictment" and
        found that "although the risk exists that evidence admissible on
        the other counts but in admissible on these counts may be improperly
        used by
      the jury, that risk can be dealt with by a careful charge."

[65]

Finally,
        after noting the various factors to be considered by the trial judge in
        responding to a severance application (see
R. v. Cuthbert
(1996)
        106 C.C.C. (3d) 28 (B.C.C.A.), aff'd at [1997] 1 S.C.R. 8), Smith J.
        turned to whether the accused wished to testify on some counts but not
        others.  In
        this regard, he noted Mr. DelBigio's statement that Mr. Lising "might" wish
        to take the stand in his defence on counts 6 and 7 if they were severed,
        but that he might not do so if he were to be exposed to cross-examination
        on the other counts in the absence of severance.  Although Mr. Westlake
        had argued that the evidence of the Crown against his client was weaker
        than that against Mr. Lising, the trial judge considered that the difference
        was "not enough to demonstrate any significant unfairness to Mr. Pires
        should the counts not be severed." As well, he noted that much of
        the Crown's evidence had already been led, so that severance would obviously
        not constitute an effective use of judicial resources and would not be
        in the interests of witnesses who had testified and would have to testify
        again if severance were granted.  On a weighing of all the factors, he
        concluded that the interests of justice did not require the severance
      of any of the counts.

[66]

In
        his charge to the jury, the trial judge carefully isolated counts 6 and
        7 and the evidence to be considered, and not to be considered, by the
      jury in relation to each count.  As noted earlier, no errors in the jury
      charge (which occupied five days) have been alleged by the appellants.

[67]

As
        is the case with respect to the other rulings challenged on this appeal,
        the trial judge's ruling regarding severance was a matter of discretion
        and one with which a court of appeal will be slow to interfere.  As was
        observed by Donald J.A. in
R. v. Carroll
(1999) 118 B.C.A.C.
      219:

The determination whether to grant severance in the midst of a
        trial depends very much on an appreciation of the dynamics of the case.  The
        trial judge is uniquely situated to make that judgment and I would be reluctant
        to reach a different conclusion unless it was obviously wrong.  [para.
      45]

(See also
R. v. Mapara; R. v. Chow
, 2003
      BCCA 131, at para. 34.)

[68]

I
        am not persuaded that the trial judge erred in any respect in his reasoning
        or in his conclusions on this point.  He obviously had a full appreciation
        of counsel's arguments and considered fully all the factors relevant to
        the issue before him.  The jury was charged carefully and would have been
        left in no doubt as to what evidence could properly be considered by them
        in connection with each charge before them.  In the result, I would also
      dismiss this ground of appeal.

[69]

It
      follows that I would dismiss the appeal.

The Honourable
Madam Justice Newbury


Reasons for Judgment of the Honourable Chief Justice
        Finch:

[70]

I
        have had the advantage of reading in draft form the reasons for judgment
        of Madam Justice Newbury.  I agree with her that these appeals should be
        dismissed.  I wish however to express my own reasons for rejecting the
        appellants' claim that they were denied a fair trial by the trial judge's
        refusal to permit them to cross-examine Detective Richards on the affidavit
      he swore in support of the application for a wiretap authorization.

[71]

The
        controlling authority is
R. v. Garofoli
, [1990] 2 S.C.R.
        1421, 60 C.C.C. (3d) 161, 80 C.R. (3d) 317 [
Garofoli

cited
        to C.C.C.], and the majority reasons of Mr. Justice Sopinka who said at
      198:

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.

In my opinion, the
        appellant has shown a basis for the cross-examination here. In view of
        the degree of reliance by the police on the informant in this case,
if
the
        informant is discredited then the factual basis for the authorization is
        undermined.
If
it is shown that the informant lied, then it could
        raise the inference that the police knew or ought to have known that he
        lied.
If
the police were not warranted in their belief that the
        information was true, then the basis for belief that a crime was to be
        committed disappears. Accordingly, the appellant should have been permitted
        to cross-examine. Cross-examination having been denied, there must be a
      new trial.

(emphasis added)

[72]

Counsel
        addressed us extensively on the meaning to be attributed to the words "will
        elicit testimony" in the last sentence of the first paragraph quoted,
        and the degree of likelihood that must be shown before a judge should
        exercise his discretion in favour of permitting cross-examination, as
        opposed to
        the more usual remedy of simply deleting or editing out portions of the
      affidavit shown to be erroneous or misleading.

[73]

In
        my view, the words "will elicit testimony" must be taken to require
        something less than certainty, and something more than "an air of
        reality" as the appellants suggested.  In
Garofoli
,
supra
at
        195, the court held that an adequate basis for cross-examination had
        been shown.  There, the accused deposed that the allegation at the heart of
        the police officer's affidavit was "totally false" and offered
        further evidence to show why that was so.  The Ontario Court of Appeal
        refused cross-examination because the accused's affidavit did not establish
        that the police officer had made "a false statement  knowingly, intentionally
      or with reckless disregard for its truth".

[74]

In
        holding that Garofoli's affidavit showed an adequate basis for cross-examination
        of the police deponent, Sopinka J. (in the third paragraph quoted) pointed
        out that in the circumstances of that case cross-examination
could
lead
        to the informant being discredited, and the inference drawn that the
        police knew he was untruthful: "If the police were not warranted in their
        belief that the information was true, then the basis for belief that a
        crime was to be committed disappears".  In other words, the alleged
        untruthfulness of the police deponent went to the very foundation of
      the authorization.

[75]

None
        of those outcomes was by any means a certainty, but there was an evidentiary
        basis for saying that there was some likelihood that such evidence could
        be elicited, because the appellant had adduced positive evidence which
      cast doubt on the reliability of the police affidavit.

[76]

The
        basis required for cross-examination on the affidavit to obtain cannot
        therefore be more onerous than showing a reasonable likelihood that cross-examination
        will elicit evidence "tending to discredit the existence of one of
        the pre-conditions to the authorization".  In
Garofoli
,
        as in this case, one of those pre-conditions is the truthfulness of the
        police deponent, without which there would be no reasonable and probable
      grounds for believing that a crime was about to be committed.

[77]

Mr.
        DelBigio for the appellant Lising urged us to adopt the line of reasoning
        taken in
National Post v. Canada
(2002), 101 C.R.R. (2d)
        158, [2002] O.J. No. 4752 (S.C.J.) ¶12 where a trial judge permitted cross-examination
        on the affidavit to obtain because he was "satisfied that cross-examination
may
show
        facts which, if known by the issuing judge,
may
have led to a
        different result".  In my respectful view, the
Garofoli
test
        is not met by showing a mere possibility that discrediting testimony
        may be
        obtained.  Such a test would permit endless fishing expeditions, since
        virtually anything is possible.  Such a test would effectively eliminate
        the more expeditious practice of editing out those parts of an affidavit
      shown to be unreliable.

[78]

I
        conclude therefore that in order to meet the test established in
Garofoli
,
        on the request for cross-examination, there must be a basis for believing
        that there is a reasonable likelihood of eliciting evidence which strikes
        at the foundation of the authorization.  I consider that conclusion to
        be consistent with the reasoning and the conclusion in
Garofoli
,
        and not to be inconsistent with any subsequent decision of this court
        or of the Supreme Court of Canada.  In
R. v. Vukelich
(1996),
        108 C.C.C. (3d) 193, 78 B.C.A.C. 113 ¶30, for example, McEachern C.J.B.C.
        suggested that a
voir dire
would ordinarily be ordered, and cross-examination
        presumably permitted, where counsel shows a reasonable likelihood that
        an information contains a deliberately false or misleading statement,
      but only if that statement is "related to the essence of the case".

[79]

I
        come then to the evidence in this case.  At ¶11 of Detective Richards'
      affidavit, he said:

THAT on August 1, 1996, I was advised by Sgt. Peter FRASER of the Vancouver
        Police Department, Polygraph Section (hereinafter referred to as "Sgt.
        FRASER"), and verily believe, that on July 31, 1996, he conducted
        a polygraph examination of MOLSBERRY in relation to this police investigation.
        Sgt. FRASER informed me that as a result of the examination he verily
        believes,
as
        do I
, that to date MOLSBERRY has been completely truthful in his dealings
      with the police in this investigation.

[80]

The
      learned trial judge said this paragraph was misleading:

[18]  This paragraph is misleading to the extent that it says Sergeant
        Fraser's belief that Molsberry had "been completely truthful in his
        dealings with the police" was based on a polygraph examination.
        In fact, the transcript of the polygraph examination and Sergeant Fraser's
        polygraph examination report, both dated July 31
st
, 1996,
        show that he tested Molsberry only for whether Molsberry was a "double
        agent", that is, an agent for the targeted allegedly criminal organization.
        Sergeant Fraser concluded that Molsberry was truthful in answering questions
      related to that subject.

[81]

The
        learned judge held this part of the affidavit "appears to be calculated
        to mislead" (¶21).  I agree with Madam Justice Newbury, that in the
        context of the trial judge's reasons, "calculated" cannot be
        meant to attribute a dishonest intention to Detective Richards, but rather,
        must be taken to mean fitted, suited or apt for the purpose.  The trial
        judge would surely have used more direct language if he had intended
        to find that Detective Richards was deliberately fraudulent or intentionally
      dishonest.

[82]

In ¶11,
        Detective Richards says that Sergeant Fraser believes "as do I" that
        to date the informant Molsberry had been "completely truthful".  The
        question raised by the appellants is whether, in light of the misleading
        statement in ¶11, they have shown a reasonable likelihood that cross-examination
        of Detective Richards could elicit testimony regarding his credibility
      that strikes at the heart of the authorization.

[83]

In
        my view, the appellants have not met this threshold.  At most, the appellants
        have shown a basis to believe that cross-examination will elicit testimony
        that tends to discredit Detective Richards' credibility on the peripheral
        matter of the polygraph examination results.  This, however, is insufficient.  The
        appellants have not shown any basis to conclude that cross-examination
        will tend to impugn Detective Richards' credibility on any of the statements
        in his affidavit that form the essential basis for issuing the authorization.  Nor
        does the misleading statement in ¶11 create any reasonable possibility
        that cross-examination of Detective Richards would elicit testimony that
        casts so much doubt on his credibility that the reliability of his entire
        affidavit would be tainted.  Accordingly, and unlike
Garofoli
,
supra
,
        the misleading statement in ¶11 does not go to the foundation of the authorization.  It
        is, rather, as in
Vukelich
,
supra
, unrelated to "the
      essence of the case".

[84]

In
        arriving at this conclusion, I have not asked, as the trial judge seems
        to have done, whether Detective Richards' affidavit contained other evidence
        sufficient to conclude that Molsberry was a truthful informant, and hence
        whether the remaining parts of the affidavit could have supported the
      authorization.  In
        my view, that question is the test a reviewing judge would have had to
        apply, where the threshold for cross-examination of Molsberry had first
        been met, to determine the authorization's validity
after
a
voir
        dire
had been conducted.  It is not a proper consideration in determining
        whether to grant leave to cross-examine the deponent of the affidavit.  I
        do not consider it helpful to assess the indicia of reliability of the
        informant when it is the credibility of the police deponent that is put
        in issue on the application for leave to cross-examine.  In such circumstances,
        the determination of whether the appellants' have satisfied the
Garofoli
test
        for leave to cross-examine must focus on the effect cross-examination will
        have on the deponent's credibility and whether it will undermine the essential
      factual underpinnings of the affidavit.

[85]

I
        would emphasize that the
Garofoli
test for whether leave
        to cross-examine should be granted is independent of and separate from
        the ultimate question of whether the authorization is valid.  The passages
        quoted by my colleague Newbury J.A. from
R. v. Bisson
(1994),
        87 C.C.C. (3d) 440 (Que. C.A.), aff'd [1994] 3 S.C.R. 1097 and
R.
        v. Vukelich,
supra
(at ¶38 and 42 respectively of her
        reasons) refer to the correct approach to reviewing the validity of an
        authorization
after
a
voir
        dire
has been held.  Those passages do not state the test for whether
        a
voir dire
should
be conducted.

The determination
        of whether leave to cross-examine should be granted must precede the
        determination of whether the authorization is valid.  Collapsing the
        test for leave to cross-examine and the test for review of the authorization
        into a single
        inquiry would require the accused to demonstrate that cross-examination
        will entirely discredit one of the pre-conditions, an approach which
      was expressly rejected in
Garofoli
.

[86]

For
        these reasons, and for the reasons expressed by Madam Justice Newbury on
      the second and third grounds, I too would dismiss the appeal.

The Honourable
Chief
      Justice Finch




Reasons for Judgment
        of the Honourable Madam Justice Southin:

[87]

I
        have had the privilege of reading in draft the reasons for judgment of
      my colleagues, Finch C.J.B.C. and Newbury J.A.

[88]

I
      agree that these appeals should be dismissed.

[89]

I
        add words of my own only on the point of whether the learned judge erred
        in his ruling on cross-examination on the affidavit sworn by Detective
        Richards because, in my opinion, too little has been made in this case
        of the differences between an authorization under s. 184.2 and an authorization
      under s. 186, the preconditions for which are set out in s. 185.

[90]

At
        issue here were the conversations of one man, Molsberry, with the accused.  Such
        an "interception", which is really no more than the making
        of a permanent record of conversations concerning which the interlocutor
        Molsberry
        would be required to testify if subpoenaed, lacks that quality of invasion
      of privacy of many persons coming from an authorization under s. 186.

[91]

R.
            v. Garofoli
, [1990] 2 S.C.R. 1421 is not about an authorization
          under s. 184.2.

[92]

No
        attack was made here on the existence of the consent.  Thus the only real
        issue was whether the affidavit set out "that there are reasonable
      grounds to believe that an offence... has been or will be committed".

[93]

In
        this case the reasonable grounds could only be found in what Molsberry
        told the peace officer as recounted in the affidavit.  Reasonable grounds
        are grounds founded in reason.  Thus, in my opinion, a peace officer may
        have doubts about the truthfulness of an informant but submit to the court
        that even though that be so the information does constitute "reasonable
      grounds" for interception under s. 184.2.

[94]

One
        must not overlook that there is some constraint on informants in s. 140(1)
      of the
Criminal Code
:

(1)   Every one commits
        public mischief who, with intent to mislead, causes a peace officer to
      enter on or continue an investigation by

(
a
)   making a false statement that accuses some
      other person of having committed an offence;

(
b
)   doing anything intended to cause some other
        person to be suspected of having committed an offence that the other
      person has not committed, or to divert suspicion from himself;

(
c
)   reporting that an offence has been committed
      when it has not been committed; or

(
d
)   reporting
        or in any other way making it known or causing it to be made known that
        he or some other person has died when he or that other person has not
      died.

[95]

In
        my opinion, it would not be wrong for a judge to grant an authorization
        even if the peace officer has expressed doubts about the general truthfulness
        of the informant.  To put it another way, it was irrelevant whether Detective
      Richards did or did not believe Molsberry.

[96]

The
        peace officer's lack of belief would be relevant only if he knew that
      what he was recounting was untrue.  To give an illustration, let us suppose
        that someone like Molsberry said he had had a conversation with the target
        of the authorization yesterday in which the target of the authorization
        said thus and so and the peace officer knew perfectly well that that
      was impossible because the target of the authorization was unconscious
      in a
      hospital ward.

[97]

To
        sum up, therefore, except in the most extraordinary of circumstances, I
        see no reason at all for cross-examination on an affidavit leading to an
      authorization under s. 184.2.

[98]

As
        to what the limits should be on a cross-examination when what is at issue
        is an authorization under s. 186 I do not consider I have, at least at
        present, any useful contribution to make.  My colleagues have each added
        a dimension to the ongoing controversy on s. 186, a controversy which
        shows no signs of abating largely because cross-examinations on affidavits
        leading
        to such authorizations are a substantial factor in the lengthening of
      trials in this Province.

The Honourable
Madam
      Justice Southin




