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| Patrick J Ducharme |
A Dawson application refers to a request by defence counsel at a preliminary inquiry to cross-examine police witnesses on affidavits filed in support of a wiretap authorization or in support of an application for a search warrant. A Garofoli application is the same application at trial. In Dawson1 defence lawyers sought to cross-examine police witnesses on affidavits filed in support of a wiretap authorization at a preliminary hearing.
They argued that subsection 540(1)(a) of the Code gives them an absolute right to cross-examine all witnesses called by the prosecution at a preliminary hearing. The court found that this is not so in the case of a request to cross-examine affiants to wiretap or search warrant applications. Leave must be obtained to cross-examine in these circumstances.
The granting of leave must be left to the exercise of discretion by the Justice conducting the inquiry. 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, for example, the existence of reasonable and probable grounds. This followed the reasoning of the Supreme Court of Canada in Garofoli2 in relation to the same request at trial.
The court found while the accused has no right to cross-examine the deponent of the affidavit, the trial Judge should grant leave to cross-examine where he 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 that the cross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization.
The right of the accused to make full answer and defence is recognized statutorily and constitutionally. Subsection 650(3) provides as follows:
650(3) An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.
The constitutional right to make full answer defence is protected by sections 7 and 11(d) of the Charter. Section 7 of the Charter provides:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Subsection 11(d) of the Charter provides:
11. Any person charged with an offence has the right
d. to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
The right to make full answer and defence guaranteed by sections 7 and ss. 11(d) includes the right of the accused to have before her the full case to meet before answering the prosecution’s case by adducing defence evidence. The accused has the right to defend herself against all efforts by the prosecution to achieve a conviction.
The trial Judge in a Garofoli application and the Justice at a preliminary hearing in a Dawson application, will limit cross-examination to questions that are aimed at establishing that there was no basis upon which the authorization in question should have been granted by the issuing Justice.
If, for example, the accused is able to establish that the informer who provided information to the affiant was unreliable or provided factually inaccurate information then the factual basis for the authorization is undermined and may lead to an order permitting cross-examination. Or, if the accused is able to show that the informer lied to the affiant and that the affiant either knew or ought to have known that his informer lied, the court will likely permit the cross-examination. The basis for belief that the issuing Justice acted upon accurate information is thus seriously undermined. It is important to remember that the same test is now used in a Dawson application as that used in a Garofoli application at trial.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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