ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 3817/12
DATE: 2013-04-03
BETWEEN:
HER MAJESTY THE QUEEN
Crown/Respondent
– and –
QUAN LAO, JOSEPH NESTOROVSKI & KUHAN MIN MAC
Defendants / Applicants
G. Roy & J. Selvaratnam, for the Crown
J. Penman, for the Defendant Lao,
J. Park, for the Defendant Mac
J. Nestorovski for Himself
HEARD: April 2 & 3, 2013
justice B. Glass
DEFENCE APPLICATION TO CROSS-EXAMINE AFFIANT AND SUB-AFFIANT ON APPLICATION FOR AUTHORIZATION TO INTERCEPT PRIVATE COMMUNICATIONS
[1] The Applicants have sought an order permitting cross-examination of Detective Ibbott, the affiant in an application for an authorization to intercept private communications. Further, the application requests that cross-examination of the sub-affiant Detective Truong be granted.
[2] The issue is whether investigative necessity was established for the issuing of such an authorization, which was granted in 2010.
Position of the Applicants
[3] In a nutshell, the Applicants submit that the affiant did not set out a proper foundation for the authorization because the investigating police could have conducted standard police investigative techniques sufficiently. Further, the police in effect jumped over the foundation requirements and went to an interception of private communications prematurely. In other words, the police took the easy road rather than conducting regular police investigatory procedures. The opportunity to listen to the private communications in a democratic country such as Canada is not granted without cause that is well-founded.
[4] For example, did the officers do very little surveillance? Did they conduct follow-up investigatory work to confirm information received from confidential informants? Did they use instruments approved by orders such as tracking orders and if they had might they have obtained more information without intercepting private communications?
[5] The Applicants submit that the police services simply took the easy way. They did not surveil the persons involved. They just watched video surveillance of persons. When they got tracking and number recording orders, they did not use them fully. They did not continue an undercover operation longer whereby they could have garnered more information without listening to private communications. They could have pursued informants more.
Position of the Respondent
[6] The Respondent opposes any permission to cross-examine the affiant or the sub-affiant because there is not a proper foundation to do so. Rather, the affidavit in support of the authorization clearly sets out what the officers did, how successful they had been, how much undercover investigatory work was done, the use of tracking orders and the use of video surveillance. The whole story is told in the materials. It is either good enough for withstanding a Garofoli application or it is not without the need to cross-examine the affiant and sub-affiant. That being the case, there is no need to cross-examine the two persons.
Analysis
[7] I conclude that cross-examinations should not be permitted. The only achievement that cross-examination might accomplish would be to grind the officers in cross-examination with questions about what they did or did not do and whether they conducted such police work properly. At the end of the argument, the court will continue to be back to the materials provided to the authorizing judge when she granted permission to intercept private communications. Even if cross-examination is conducted so that one might criticize the officers for the quality of their work, the court will decide whether the information provided is properly founded for the order given. There is no suggestion that the affiant misled the authorizing judge when applying for permission to intercept private communications. In other words, there is nothing to be gained with cross-examination.
[8] The application to cross-examine the two officers is dismissed.
[9] The Garofoli application will continue based on the materials used for the application for an authorization to intercept private communications.
Justice B. Glass
Released: April 3, 2013
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ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
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