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Criminal - Affidavits. R. v. Dalia
In R. v. Dalia (Ont CA, 2025) the Ontario Court of Appeal dismissed a defendant's criminal appeal, this brought against "convictions for possession of fentanyl and cocaine for the purpose of trafficking and for possession of the proceeds of crime".
Here the court considers leave for allowing cross-examination of an affidavit:[8] In this appeal, the appellant contends that Krawchenko J. did not apply the correct principles in determining whether leave should be granted to cross-examine and that his comment at the end of his ruling gives rise to a reasonable apprehension of bias.
[9] These arguments should be rejected.
[10] I do not agree that Krawchenko J. conflated the test for leave with a determination of the overall validity of the warrant or that he committed any reviewable error. His reasons show that he appropriately considered whether the appellant had met the threshold set out in R. v. Phan, 2020 ONCA 298, 387 C.C.C. (3d) 383.
[11] Leave is required to cross-examine an affiant or sub-affiant. The discretionary granting of leave is based on the test set out in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1465: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. [Emphasis added.] [12] In Phan, at paras. 67-68, Strathy C.J.O. reviewed the principles informing the decision to grant leave:The focus on a motion for leave to cross-examine “is on the reasonableness and honesty of the affiant’s belief about the existence of the requisite grounds, and not on the ultimate accuracy of the information the affiant relies upon”: R. v. Victoria, 2018 ONCA 69, 359 C.C.C. (3d) 179, at para. 80. A proposed cross-examination directed to show only that some of the information relied upon by the affiant is false is unlikely to warrant leave unless it can also support an inference that the affiant knew or ought to have known it was false: [R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 41.]
When an accused seeks evidence in support of a Garofoli application, that narrow test must be kept in mind. In R. v. Imam, [2012] O.J. No. 6543 (C.J.), at para. 14, Paciocco J., as he then was, indicated that an accused must demonstrate a “threshold factual basis … raising a reasonable likelihood that cross-examination will produce probative evidence tending to discredit a material precondition to the authorization being granted or tending to show significant police misconduct in securing the search order”.
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