Thursday Thinkpiece: Prosecuting and Defending Drug Cases–A Practitioner’s Handbook

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Prosecuting and Defending Drug Instances: A Practitioner’s Handbook

Creator: Nathan Gorham, Jeremy Streeter and Breana Vandebeek
Foreword: Eric V. Gottardi, Peck and Firm Barristers
Common Editors: Brian H. Greenspan and Justice Vincenzo Rondinelli

ISBN: 978-1-77255-4298
Writer: Emond Publishing
Web page Rely: 340
Publication Date: June, 2019

Common Value: $115
Sequence Subscription Value: $100

Excerpt: from Chapter 3 “Disclosure Points”, part II “Disclosure of confidential Supply Data”, subsection D “Garofoli Steps 1 and 2 and E “Cross-Examination of the Affiant on the Garofoli Software”. [Footnotes omitted. They are often discovered within the unique on this PDF model]

D. Garofoli Steps 1 and 2

As outlined beforehand, Garofoli steps 1 and 2 ponder that the ITO will likely be unsealed and edited by the prosecution. If the defence isn’t happy with the character of the enhancing, it may well then ask the trial choose to order further disclosure. The choose could then take into account whether or not the declare of informer privilege is legitimate and whether or not the prosecution edited the ITO in a fashion that struck the precise stability between informer privilege and the accused’s proper to disclosure.

This raises evidentiary and procedural questions: Ought to the prosecution be required to tender proof in assist of its place? What proof ought to it’s permitted to tender? How will the defence take part within the course of? Will the listening to be carried out in open courtroom or ought to it’s executed in digital camera?

In R v Basi, the Supreme Courtroom made it clear that trial judges have broad discretion in figuring out the process for addressing disputes within the context of disclosure and informer privilege. In that case, the defence challenged a declare of informer privilege and the trial choose dominated that an in digital camera listening to can be held with defence counsel current, so long as defence counsel submitted to an order to not disclose data from the listening to with the accused. The prosecution then invoked part 37 of the Canada Proof Act (CEA), which supplies as follows:

[A] Minister of the Crown in proper of Canada or different official could object to the disclosure of knowledge earlier than a courtroom, individual or physique with jurisdiction to compel the manufacturing of knowledge by certifying orally or in writing to the courtroom, individual or physique that the knowledge shouldn’t be disclosed on the grounds of a specified public curiosity.

The trial choose then ordered that defence counsel may very well be current for the listening to underneath part 37 of the CEA. The prosecution appealed instantly, and the Supreme Courtroom thought-about whether or not the trial choose was right in ordering that defence counsel be permitted to be current through the listening to.

Fish J held that defence counsel and the accused needs to be excluded from the room when the trial choose is figuring out whether or not a declare of privilege applies. One drawback with allowing the defence to obtain the knowledge, he defined, is that receiving the confidential data tends to erode the belief and confidence within the lawyer – shopper relationship. It might even be a breach of informer privilege, which requires the prosecution to guard the id of the confidential supply and all data that may are inclined to reveal his or her id.

Fish J additionally held that trial judges have broad discretion to find out the right way to pretty decide challenges to a declare of confidentiality:

55 In an effort to defend these pursuits of the accused, trial judges ought to undertake all affordable measures to allow defence counsel to make significant submissions relating to what happens of their absence. Trial judges have broad discretion to craft acceptable procedures on this regard.

56 Measures {that a} trial choose could want to undertake in assessing a declare of informer privilege embrace inviting submissions on the scope of the privilege—together with argument as to who constitutes a confidential informant entitled to the privilege—and its utility within the circumstances of the case. Defence counsel could also be invited as effectively to recommend inquiries to be put by the trial choose to any witness that will likely be referred to as on the ex parte continuing.

57 In acceptable instances, equity could require the courtroom to supply the defence with a redacted or summarized model of the proof introduced ex parte—edited to get rid of any risk of exposing the informant’s id—in order to allow the trial choose to obtain further submissions from the defence on whether or not the privilege applies within the explicit circumstances of the case. In significantly troublesome instances, the trial choose could appoint an amicus curiae to attend the ex parte continuing with the intention to present help in assessing the declare of privilege.

In R v McKenzie, a 2015 case from the Ontario Superior Courtroom, Campbell J crafted a process for figuring out whether or not the prosecution had edited an excessive amount of data from an ITO. The prosecution supplied defence counsel with a duplicate of the edited ITO, and defence counsel took the place that “there wanted to be a extra strong process undertaken to make sure that the unique ITO was redacted not more than obligatory by the Crown.” Campbell J determined that he would require the prosecutor to justify the enhancing:

13 Within the absence of any expressed justification for the proposed enhancing of the ITO, nevertheless, the trial choose is left to achieve the “last willpower” on the enhancing situation based mostly solely upon: (1) the contents of the unique, unredacted ITO; (2) the contents of the redacted ITO; and (3) the contents of the proposed judicial abstract. In some circumstances it might be patently apparent as to why a redaction is important with the intention to protect the anonymity of the confidential informant. However there’ll undoubtedly be different circumstances when the necessity for a redaction isn’t almost so self-evident, and a proof by the Crown looking for to justify the proposed redaction would possibly effectively show to be very useful to the trial choose. In any case, at an early stage of the trial proceedings, the Crown is apt to have a broader base of factual data as to the scope of the police investigation and the opposite circumstances of the case, and could have prepared entry to session with the investigating law enforcement officials, the confidential informant’s police “handler” or foremost police liaison, and doubtlessly (at the very least not directly) the confidential informant him or herself. In brief, if there’s any justification for the proposed enhancing of the ITO, the Crown is in the perfect place to supply that rationalization. As soon as suggested of any proposed justification, the trial choose will then be in a greater place to evaluate the deserves of the justification and the corresponding want for the proposed enhancing.

14 This isn’t, nevertheless, solely a difficulty of sensible efficacy and widespread sense. The Crown bears the authorized burden of justifying any proposed enhancing. In R v Durette (1992), 9 O.R. (3d) 557 (C.A.), at para. 151, Doherty JA, in a dissenting judgment, in the end endorsed by the Supreme Courtroom of Canada (R v Durette, [1994] 1 S.C.R. 469, at paras. 36, 43-45), made it clear that full disclosure of an ITO is the “beginning premise” and any redaction that will intervene with the power of the accused to make full reply and defence “have to be justified by the Crown in accordance with established ideas.” Extra particularly, Doherty JA instructed that the enhancing of an ITO is greatest seen as a “obligatory evil” even when justified by “public curiosity issues” and it follows that the Crown initially, and the courtroom in the end, should endeavour to reduce any enhancing. On additional attraction, Sopinka J, delivering the judgment of nearly all of the Supreme Courtroom of Canada, confirmed, at para. 45, that “full disclosure needs to be the rule, topic solely to sure exceptions based mostly upon overriding public pursuits which can justify non-disclosure,” and instructed {that a} supporting affidavit or ITO “ought to solely be edited to the extent obligatory to guard these overriding public pursuits.”

Campbell J additionally determined that the suitable process, within the circumstances of the McKenzie case, would entail the prosecutor offering the courtroom “with a written rationalization and/or justification for every of the proposed redactions to the ITO.” Nonetheless, he declined to situation instructions to the Crown regarding the substantive content material of its written rationalization, the way it needs to be ready, or whom the Crown ought to seek the advice of in making ready the doc.

E. Cross-Examination of the Affiant on the Garofoli Software

In the course of the Garofoli course of, the defence could search depart to cross-examine the affiant. Earlier than depart is granted, nevertheless, the trial choose have to be happy that the questioning is more likely to end in probative proof on the applying. The defence needn’t exhibit that the cross-examination will invalidate the warrant and even yield proof that’s useful to the defence. Quite, the defence should present that the questioning will help the trial choose in resolving the problems on the applying. This depart requirement goals to stop prolix proceeds and to guard confidential informant privilege.

F. Garofoli Step 6

At Garofoli step 5, the trial choose determines whether or not the warrant could be upheld on the premise of the edited ITO and the knowledge tendered on the applying. If the warrant can’t be upheld, then the prosecution could apply, underneath Garofoli step 6, for an order that the choose take into account the unedited ITO. Earlier than the choose grants this utility, she or he have to be happy “that the accused is sufficiently conscious of the character of the excised materials to problem it in argument or by proof.”

In R v Crevier, the Ontario Courtroom of Enchantment interpreted step 6 as requiring that the defence should “be ready to mount each a facial and sub-facial assault on the warrant, together with a problem to these components of the ITO which might be redacted however relied on by the trial choose.” To place defence counsel ready to mount these challenges, Rouleau J defined in Crevier that it will likely be obligatory to supply the defence with a “well-crafted judicial abstract” of what’s edited or redacted from the ITO. As we clarify in Chapter 4, Constitution Points in Drug Instances, a judicial abstract is just a brief abstract of the character of the knowledge redacted from the ITO.

By the point the Garofoli listening to reaches step 6, the alternatives for disclosure could have been exhausted. For that purpose, it can be crucial that defence counsel search disclosure on the earlier phases of the continuing by the usage of disclosure requests, the preliminary inquiry, Garofoli step 2, and cross-examination of the affiant within the Garofoli listening to.


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