The Garofoli Hearing : Cross-Examination Amplification & Other Procedural Considerations.
Author(s): Lindsay Pearce
Publication Date: April 2012
Format: PDF
Part of: 2012 National Criminal Justice Conference:
Seven, Eight, Nine: Silence, Searches and Detention
Full Binder
Description
In R. v. Pires and Lising1, the Supreme Court of Canada considered the constitutionality of the Garofoli leave requirement, the threshold test for cross-examination of an affiant on an application to challenge a wiretap authorization pursuant to section 8 of the Charter. The Court ultimately found the leave requirement to be consistent with Charter principles and not an infringement of the accused’s right to full answer and defence but in doing so touched on the wider implications of the need to balance the rights of the accused, with the public interest in
the fair but efficient use of judicial resources. While the focus of the appeal was on the leave
requirement, it is the overarching principles of trial fairness, efficiency and need for the court to
control its own process that have carried forward and continue to be a warning to future proceedings. With that warning in mind and in looking forward from the Supreme Court’s decision in Pires and Lising, this paper will discuss how the courts have since approached the procedural aspects of the Garolfoli hearing. In particular, it will the threshold test for leave to cross-examine the
affiant, and if leave is granted, the scope of cross-examination, the scope of re-examination, the ongoing debate over the proper process and the use of amplification evidence. |
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