R. v. Childs, 2016 ONCJ 690

DATE: November 4, 2016 COURT FILE No.: 15-633 CITATION: R. v. Childs , 2016 ONCJ 690 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — STEPHEN CHILDS Before Justice Gregory Campbell (Released November 4, 2016) C. Malott............................................................................................................ for the Crown J.

Comand......................................................................................................... for the Accused CAMPBELL J.: RULING - CONDUCT OF PRELIMINARY INQUIRY [ 1 ] Stephen Childs was charged with possessing Dilaudid and Fentanyl for the purpose of trafficking. He elected to be tried by a judge of the Superior Court and requested a preliminary hearing.

During a focus hearing, the Crown indicated that it intends to call two officers to testify about the arrest and seizure of the drugs following a search incident to the arrest and intends to file a written report pursuant to s. 540(7) of the Controlled Drugs and Substances Act to demonstrate the drugs seized were possessed by the accused for the purposes of trafficking. [ 2 ] At issue is the accused’s desire to hear from the officer who concluded there were grounds to arrest Mr. Childs.

His grounds to arrest arose from information he received from a confidential informant who has requested that his identity be protected. Notwithstanding the prosecution’s disclosure of the officer’s vetted report and handwritten notes, counsel for Mr. Childs would like to explore the sufficiency of the grounds for arrest, and in particular, the inferences drawn and conclusions made from information obtained not only from the informant but also in regard to the officer’s efforts to corroborate that information.

All of this of course would be focused on the lawfulness of the search and seizure of the drugs through the lens of a potential Charter application at trial. It is acknowledged by the defence that the proposed examination of Officer Sieberer would be in the form of discovery and is not necessary for the purpose of determining committal. [ 3 ] The prosecution is concerned that the proposed cross-examination of the informant handler might compromise the informer’s privilege, and adds that everything the officer might have to say about his involvement in the matter has already been disclosed.

To this end, the Crown maintains that if the defence intends to examine the officer, leave of the court is required by way of a Dawson application. The defence maintains that a Dawson application is not required and adds that if the Crown does not intend to produce Constable Sieberer, a subpoena will be issued and service effected on the officer by the defence to require him to attend for examination at the hearing. [ 4 ] The application before me is a bit unusual. The Crown has only indicated that it does not intend to call the officer.

The defence has not brought a Dawson application and a subpoena for the officer has not been issued. The Crown moved on consent of the defence. It is essentially a joint application as part of the focus hearing seeking direction from me on how to proceed. I have been told this issue has been becoming increasingly more common between counsel in similar circumstances and for that reason they could benefit from a ruling on how to proceed.

First, let me say here that I am not inclined to tell counsel how to conduct their case. [ 5 ] Notwithstanding more recent changes and practices in the court to embrace case management, this is still an adversarial system. I will respond to the questions that have been put before me for my consideration but I am not issuing a directive in regard to how counsel should conduct their case. I trust this remark will become clearer as I address the issues below.

Second, I dare say that from what I have read and can glean from discourse among the bench and bar, the range of opinions about the scope and breadth of the preliminary hearing varies considerably in regard to where the line will be drawn to curtail the hearing of evidence on ancillary matters in the form of discovery. [ 6 ] To that end, counsel should appreciate that what I say here may not influence others on how preliminary hearings ought to proceed and despite all the jurisprudence available about the role and purpose of the preliminary hearing, there may be room yet for

clarity and direction from the Court of Appeal in regard to the role of discovery in particular because many of the decisions often cited inthis regard predate the 2004 amendments the Code, obiter dictum from the Supreme Court, changes to the rules of court and of coursethe varying views and practices of judges who toil in the Ontario Court of Justice conducting preliminary hearings every day.

Nevertheless, I think it safe to say that as matters stand, there has been appreciable deference afforded to the preliminary hearing judgeto allow the exercise of discretion in regard to how much evidence the court will receive on matters beyond the primary screeningpurpose of the hearing. Both practice and perspectives on the retrenching of evidence varies considerably. [7] With this backdrop, I will turn to the questions put to me by counsel. The prosecutor’s material sets out eight questionsfor me to address. Counsel for the defence identified two issues.

I will distill them down as follows. 1: What is the purpose of the preliminary hearing? [8] This question has been addressed for decades. The answers are found in numerous decisions at every level of court acrossthe country and at the Supreme Court of Canada. I do not propose to review or provide a detailed or historical overview of the manydecisions but some background and perspective would be useful.

Suffice it to say the Supreme Court and courts of appeal haveconsistently said that the primary purpose of the preliminary inquiry is to satisfy the court that there is sufficient evidence to put theaccused on trial. See for example Supreme Court of Canada decisions in Caccamo v. The Queen, (SCC), [1976] 1S.C.R. 786; Skogman v. The Queen, (SCC), [1984] 2 S.C.R. 93; R. v. Dubois, [1986] 1 S.C.R. 386 and R. v.

Hynes,2001 SCC 82 , [2001] 3 S.C.R. 623. [9] Notwithstanding the primary purpose being a screening device used to address the sufficiency of evidence to commit, thejurisprudence reveals that over time the preliminary inquiry assumed an ancillary role as a discovery mechanism used to provide theaccused with an early opportunity to discover the Crown’s case. Prior to R. v. Stinchcombe, (SCC), [1991] 3 S.C.R.326, the accused did not enjoy the same level of disclosure from the Crown.

The preliminary hearing was used as a way to discover thecase against him. [10] The Law Reform Commission of Canada in 1975 addressed the role of discovery and Crown disclosure in a working papertitled - The control of process and the power of the Attorney General and its agents. See not only Stinchcombe but also R. v.

Brass(1981) (SK KB), 64 C.C.C. (2d) 206 before it, where Judge Kindred of the Saskatchewan Court of Queen’s Benchwhile dealing with matters related to the conduct of a preliminary hearing referenced this and other working papers on discovery andindicated that at the time, there was very little discovery provided to the accused as a matter of right. [11] After the Supreme Court established that the accused had a constitutional right to disclosure of all relevant information,there was a return to the argument in favour of the hearing being focused on the primary purpose and de-emphasizing the ancillary roleof discovery.

This sentiment gained further momentum after the 2002 amendments to the Criminal Code came into force in 2004. Ofparticular note were the changes to the way the court could receive evidence now set out in subsections 540 (7), (8) and (9) and adirective for the presiding judge in s. 537 (1.1) to bring to an end any examination that was abusive, too repetitive or otherwiseinappropriate. These amendments were clearly illustrative of Parliament’s intention to try and streamline the process and avoid lengthydiscovery hearings. To that end, Justice Deschamps remarked in the case of R. v.

L (S.J.) 2009 SCC 14 , [2009] 1 S.C.R. 426 atparagraph 24 that the function of the preliminary inquiry as a discovery mechanism has lost much of its relevance. [12] Notwithstanding what became a new regimen for disclosure which of course continues today and the legislative changesthat were made in regard to admissible evidence and judicial management, there is nothing I can glean from any of the cases I have readto indicate that the opportunity for an accused person to ascertain the nature and strength of the Crown’s case has been negated. There issimply an emphasis on management.

For the most part, it’s been my experience that counsel are able to agree on the scope and breadthof the evidence to be adduced at the hearing. In this regard, focus hearing statements are typically exchanged in advance of the hearingdate for discussion with the presiding judge in accordance with Rule 4.3 of the Rules of Court. Often counsel determine in advance thatcommittal is not in issue and an agreement is reached to conduct a discovery in the absence of a presiding judge, pursuant to Rule 4.4.

So, what has traditionally been an adversarial step in the prosecution has become much more of a case management exercise thatoccasionally benefits from a nudge by the judge to sometimes encourage the production of a witness or question the necessity of one andonly periodically requires a judicial ruling in advance, for example, pursuant to an application under s. 540(9) before the hearing. [13] What is or is not relevant for the purpose of cross-examination at the hearing is often a topic for discussion and debate.

Section 541(5) provides that the court shall hear witnesses called by an accused who testifies to any manner relevant to the inquiry. Now, it appears to me that relevance to the inquiry takes on two perspectives. First, there is what I will call discovery ancillary to thetestimony lead by the Crown. That is to say, the Crown generally does not quarrel with defence counsel cross-examining a witness onmatters beyond the screening purpose of the hearing, provided that examination is conducted with witnesses who have been called by theprosecutor.

So, while the Crown might call a witness to address the primary purpose, it will not typically object to defence counselexamining for discovery in the realm of possible Charter infringements, subject of course to prolixity. [14] Second is what I will call testimony lead by the defence to address an ancillary purpose. Here is where the Crown andmany of my colleagues more typically draw the proverbial line. From the questions asked of me on this application, it is foreseeable theCrown will seek a ruling to prevent the examination of P.C.

Seiberer should the defence subpoena the officer to testify as a defencewitness at the hearing.

This concern is collateral to the more pressing issue raised by the Crown thus far about protecting the identity ofthe informer but remains a point of contention between the Crown, defence and many judges as to whether an accused may only callwitnesses relevant to the primary purpose of the inquiry. [15] There can be no doubt that discovery still plays an important role in the preliminary hearing process, although clearly itmust be managed and should give way to the rigidity of being an adversarial right in favour of a measured opportunity.

The criminalcourt rules of the Ontario Court of Justice are regulatory and specifically recognize the availability of discovery as part of thepreliminary inquiry. As already mentioned, Rule 4.3 provides for focus hearings in anticipation of the preliminary hearing whereby thejudge will assist the parties in identifying the issues, including the witnesses to be heard at the inquiry. Rule 4.4 specifically provides amechanism to complete discovery and includes a commentary to indicate that this can be conducted in the absence of the preliminary

hearing judge. These provisions were put in place to facilitate the orderly conduct of the hearing as provided for in s. 536.4 of the Code. [16] A review of

Part XVIII of the Code and the rules of court make it clear that notwithstanding the lack of a constitutionalright to a preliminary inquiry, where an accused is charged with an indictable offence and requests a preliminary hearing into the charge,the parties are brought together before the preliminary hearing judge in advance of the hearing to not only identify the issues andwitnesses but also to encourage a streamlined approach to admissions and the filing of documentation to promote a fair and expeditiousinquiry.

All of this is illustrative of the fact the ancillary purpose of discovery at the hearing remains an incidental benefit of the processto the accused. Section 541 (5) of the Code provides as follows: “The justice shall hear each witness called by the accused who testifies to any matter relevant to the inquiry, and for the purposes of thissubsection,

section 540 applies with modifications as the circumstances require.” [17] This subsection existed and was not changed during the 2004 amendments. It reads the same today as it did at the time ofHynes in 2001, and most notably for our purposes, R. v. Dawson (1998), 123 C.C.C. (2d) 385 (O.C.A.) which itself dealt specificallywith discovery. If parliament wanted to define the scope of relevant evidence the accused could call as part of its case, it could havedone so as part of the reforms effected in the 2002 legislative changes referenced above.

Instead, s. 541(5) remained unaltered. [18] I hold the opinion that the purpose of the preliminary inquiry has not changed. It remains twofold. There is a primary andancillary purpose. All that has changed is the will and desire to manage the ancillary purpose of the inquiry more effectively.

To thatend, a preliminary hearing judge should expect to receive great deference when exercising his or her discretion to limit examinations towitnesses who can offer material evidence on matters relevant to the inquiry and bring about swift endings to inquiries that becometantamount to fishing expeditions. 2: Can the Crown be compelled to call a witness at the preliminary inquiry? [19] Section 540(1)(

a) of the Code provides that the judge shall take the evidence under oath of witnesses called on the part ofthe prosecution and allow the accused or counsel for the accused to cross-examine them. [20] In R. v. Cook, (SCC), [1997] S.C.J. No. 22, 114 C.C.C. (3d) 481, at paragraph 56, the Supreme Courtsaid: It has been suggested in at least two decisions… that the Crown might wish to call witnesses with material evidence and simply makethem available for cross-examination.

I would certainly not go so far as to impose such a requirement, nor do I think that a trial judgeshould ever order the Crown to produce a witness. If the Crown wishes to adopt such a procedure in a given case, however, this wouldof course be within the legitimate exercise of its discretionary authority. [21] The foregoing decision dealt with the production of witnesses by the Crown at trial. The principle applies equally topreliminary hearings.

In Brass (supra), the prosecution indicated to defence counsel during a preliminary hearing that it did not intend tocall certain witnesses but would make one available to the defence as a defence witness. After the Crown closed its case, the defencerequested the court to direct the Crown call the witness as a prosecution witness. The preliminary hearing judge did just that. TheCrown moved for certiorari and was granted an order quashing the ruling requiring the Crown to produce the witness.

In granting theorder, the Superior Court Judge stated that the Crown has an unfettered discretion to call whatever witnesses it wishes to present at thepreliminary inquiry, and that the learned Provincial Court Judge erred in law in directing the witness to be called as a prosecutionwitness. [22] This same principle has been referenced in the Ontario decision of R. v. Girimonte, (1997), (ON CA),121 C.C.C. (3d) 33, where the Court of Appeal said at paragraph 37: “Unlike disclosure, discovery is not a constitutionally protectedright.

The Crown has no obligation to afford the defence an opportunity to discover the Crown’s case.” And, the Supreme Court ofCanada in R. v. S.J.L., 2009 SCC 14 , [2009] 1 S.C.R. 426 at paragraph 23 citing R. v. Khela, (SCC), [1995] 4S.C.R. 201, stated that the Crown’s duty does not extend to producing a witness for discovery. I would also add there is case law tosuggest that the Crown’s decision not to call a witness it earlier indicated that it intended to call also remains within its discretion [SeeR. v. Jacobson, [2004] O.J. No. 1791 (SCJ)].

While the court indicated an explanation ought to be offered up to the court and defencefor the reconsideration or change in decision, in the absence of prejudice or disadvantage, the court could not order the Crown to adducethe evidence. [23] Finally, it is sometimes necessary to reiterate that the preliminary hearing judge’s authority is statutorily prescribed. Therelevant sections are set out in

Part XVIII between s. 535 and s. 551.

There is no provision within those subsections to indicate that thehearing judge can order the Crown to produce a certain witness for discovery. [24] It is therefore clear to me, subject to my comments about s. 540(9) below, that a preliminary inquiry judge cannot direct theprosecution to call a witness, or more directly on point with respect to this case, to produce a witness for discovery by the defence. 3: Is the accused permitted to call witnesses at the preliminary hearing? [25] Just as the preliminary hearing judge may receive evidence on the part of the prosecutor, the judge may also hear evidencecalled by the accused in accordance with s. 540.

Moreover, where the Crown seeks to rely on a witness statement or documentaryevidence in accordance with s. 540(7), the preliminary hearing judge shall, on application of a party, require a person to attend for across-examination with respect to the tendered documentary evidence.

It is important to note that the authority given to the court torequire the person to appear is limited to allowing cross-examination with respect to evidence the Crown intends to tender under s.540(7). [26] Based on the foregoing analysis about whether the Crown can be compelled to call a witness at the preliminary hearing, itstands to reason that should the Crown after first giving notice pursuant to s. 540(7) later decide not to tender that evidence, the courtwould no longer have authority to compel the person to attend.

[27] Beyond these observations about s. 540(7), s. 541(5) is significant on this issue. It provides that the judge shall hear eachwitness called by the accused who testifies to any matter relevant to the inquiry. [28] The statute makes it clear the accused is at liberty to call one or more witnesses to testify at the inquiry. There is thereforenothing to prevent the accused from calling witnesses to testify about matters that are ancillary to the primary purpose of the inquiry.

The testimony to be received however, is subject to the parameters I have set out above in regard to the purpose and management of theinquiry. This conclusion segues now to one of the questions raised by counsel about the foreseeable conduct of this hearing. That is, ifthe defence chooses to serve Constable Sieberer with a subpoena, can the Crown move before me as the preliminary hearing judge toquash the subpoena? 4: Can a preliminary inquiry judge quash a subpoena? [29] This issue raises both a procedural and a substantive question.

Firstly, it is apparent to me that a judge conducting apreliminary inquiry has no inherent powers and is restricted to the statutory framework as set out in

Part XXVIII of the Criminal Code. To that end,

Part XXII of the Code which deals with procuring attendance has application here.

Section 698 of the Code provides thatwhere a person is likely to give material evidence in a proceeding to which this Act applies, and this would of course include thepreliminary hearing, a subpoena may be issued in accordance with this Part requiring the person to attend to give evidence. A review ofPart XXVIII fails to afford the provincial court judge any authority to strike out or quash a subpoena.

A provincial court judge doeshowever have the authority to issue a warrant where a person who has been served with a subpoena to give evidence fails to attend. [30] If defence counsel chooses to cause a subpoena to issue in this court and service is effected to compel a witness to attendand give evidence at the inquiry, the witness will be required to attend unless the Crown first obtains an order rescinding the process. The ability to quash a subpoena is a remedy granted by way of certiorari and would fall under

Part XXVI of the Code and within theinherent powers of the Superior Court. There is no authority granted to the provincial court judge to strike out the process. That is not tosay the preliminary hearing judge is without any authority to manage the proper conduct of the hearing when there is a dispute in regardto whether a witness should be required to appear before the court to testify. I’ll have more to say about this below. [31] Separate and apart from the issue of jurisdiction to quash the subpoena, there are substantive questions that requireconsideration.

First is in regard to whether the witness can be expected to provide the preliminary hearing judge with material evidencerelevant to the inquiry. It would be preferable if the Code allowed a provincial court judge authority to quash or set aside a subpoena. As the Court of Appeal stated in R. v. Logan, (ON CA), [1988] O.J. No. 1360 (Ont. C.A.), a motion to quash asubpoena should typically be brought at trial before the presiding judge. For the same reason, the issues to be determined on theapplication to rescind the subpoena could be best dealt with before the preliminary hearing judge.

The issue to be determined is set out ins. 698 of the Code, that being, whether the person under subpoena is likely to give material evidence in the proceeding. There is ofcourse with that consideration a connection to the purpose and scope of the preliminary hearing that arises in the circumstances of thiscase before me that would not only require me to determine whether the witness under subpoena has material evidence to give pursuantto s. 698, but also whether the witness who has been subpoenaed to testify will be able to offer evidence relevant to the inquiry pursuantto s. 541(5).

It would prove beneficial to manage the hearing more efficiently if the Code were amended to allow the preliminaryhearing judge the authority to strike out the process. Regrettably, I do not believe that authority exists. [32] However, notwithstanding an inability to nullify the process, as I said earlier, the preliminary hearing judge has authority tomanage the proper conduct of the hearing.

To that end, there is nothing preventing a party from moving by way of application to thepreliminary hearing judge for a ruling to determine whether the examination of a witness under subpoena would be either inappropriatepursuant to s. 537 (1.1) or likely to lack relevance contrary to s. 541(5). It seems to me that if either ground were established, thepreliminary inquiry judge could be satisfied that the witness will not likely be able to provide the court with any material evidence as isrequired to issue a subpoena pursuant to s. 698.

In those circumstances, it would be reasonable for the judge to indicate that in the eventthe witness under subpoena fails to attend court, the presiding justice will not issue process to compel the witness to attend. [33] In the end, it remains counsel’s decision to determine how to proceed either by application to this court as I have set out, orby certiorari in the Superior Court. It does however appear to me, consistent with the Court of Appeal’s indication in Logan (supra), thatthe preliminary hearing judge would be in the best position to deal with the issue.

A ruling in this regard would be more in line with thecourt’s supervisory role of managing the hearing while ensuring that the defence is afforded the opportunity to call witnesses on the onehand but being careful to limit broad discovery and establish reasonable boundaries. [34] I will now turn to the final issue that requires a determination. That is, whether a Dawson application is required. 5: Is a Dawson application required? [35] The Crown has put forward a legitimate concern about protecting the identity of a confidential informant.

She argued thatthe evidence the defence intends to adduce goes beyond the incidental discovery purpose of a preliminary inquiry and raises concernsconsistent with the Supreme Court’s dicta in Garofoli and Dawson regarding the protection of an informer’s identity and the unnecessaryprolongation of proceedings. The Crown argued that a basis must therefore be shown by the accused to support the view that theintended examination of P.C.

Sieberer will elicit testimony tending to discredit the officer’s reasonable grounds to believe an offence hadbeen committed. [36] The Crown’s concern with respect to informer privilege is a genuine one. I have reviewed the report and notes of OfficerSieberer who was the ‘handler’ of the confidential informant and made the call to arrest Mr. Childs. The report and notes chronicle theofficer’s involvement with the informant and efforts to verify information he received. The Supreme Court of Canada’s decisions in R.v. Debot, (1989), (SCC), 52 C.C.C. (3d) 193 and R. v.

Garofoli, (1990), (SCC), 60 C.C.C. (3d) 161,addressed areas of concern in regard to the reliability of information received from a confidential informant. This included a requirementthat in circumstances where the informant, such as the one at issue in this proceeding, had no past proven history, the reliability of theinformation must be tested by way of corroboration through police investigation prior to making a decision to arrest and search. [37] The court said the level of verification or corroboration required can vary based on the information received, the degree of

details, the informer’s reliability and the quality of the information that can be corroborated. They are all important considerations,especially when there is an inability to assess the credibility of the source owing to a lack of past experience with him. [38] Ms. Comand has indicated that her desire to examine the police handler is not only in regard to his efforts to corroborate theinformation he received but also in regard to the inferences the officer drew from the facts he relied on in forming his grounds to arrest. Her position also is not without merit.

But, is a Dawson application required in this instance? In Garofoli, the accused wanted the rightto cross-examine the affiant on affidavits filed in support of wiretap authorizations that were judicially reviewed and sealed. Theevidence gathered as a consequence of those warrants was presumptively lawful.

The accused sought to attack the statements made bythe affiant and in particular, the information he received from an informer. [39] The Supreme Court said leave could be granted by a trial judge where he is satisfied that cross-examination of the affiant isnecessary to enable the accused to make full answer in defence, but that a basis must be shown by the accused for the view that thecross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization, as, forexample, the existence of reasonable and probable grounds. Eight years later in R. v.

Dawson (1998), (ON CA), 123C.C.C. (3d) 385, the Ontario Court of Appeal addressed whether a provincial court judge had jurisdiction to grant leave in appropriatecircumstances to cross-examine police witnesses on affidavits filed in support of wiretap authorizations for the purpose of eventuallychallenging the information behind the authorization and lay a foundation for a violation of s. 8 of the Canadian Charter of Rights andFreedoms. [40] Carthy, J. was of the view that Garofoli was simply laying down guidelines for cross-examinations on a subject matter thatwarrants advance limitations on the extent of disclosure.

He said there was no reason that the granting of leave to cross-examine in thesame manner should be preserved to the trial judge. The court’s reasoning for this was fairly straightforward. Justice Carthy indicatedthat it was common place to have examinations of witnesses at preliminary hearings on all aspects of potential Charter violations.

Assuch, there was no reason that the granting of leave to cross-examine should be preserved to the trial judge when there is legitimatediscovery that can be carried out at the preliminary inquiry subject to issues of relevance, materiality and redundancy. [41] In addition to addressing the application of the court’s ruling in Garofoli to the preliminary hearing, both the Supreme Courtand Ontario Court of Appeal were concerned about the protection of police investigative procedures and the disclosure of the identity ofinformants.

Herein, I believe, lies the focus of the Crown’s concern and why the Crown feels a Dawson application ought to be broughtby the defence.

At paragraph 18 of the decision, Carthy J. stated that “policy reasons associated with the protection of the policeinvestigative procedure and informers demand that proper bounds of cross-examination be pre-set to avoid rulings being made after thedamage is done.” [42] Notwithstanding these policy considerations being identified as a legitimate concern in the two decisions, I do not believethese remarks are an indication that any time there are concerns associated with protecting investigative procedures or in this case theidentity of a confidential informant, an application for leave to examine a police officer is required.

In both Garafoli and Dawson, leavewas required because the court was being asked to permit the accused to go behind a judicial authorization and challenge the swornevidence that was relied on by the judge who granted the order. There was no ability to challenge the evidence without leave of thecourt granting access to it. Policy concerns associated with the protection of investigative procedures and informers were identified bythe court as a consequence of granting leave. As such, the court set out parameters for consideration to safeguard those concerns. [43] What Ms.

Comand desires is the opportunity to question Officer Seiberer about the lawfulness of the arrest. At paragraph13 of Dawson, Carthy J. had this to say: “it is only the requirement for leave, as enunciated in Garofoli, that may distinguish wire-tapauthorizations from for instance, the facts surrounding an alleged illegal arrest or the granting of the right to counsel.” Now the OntarioSuperior Court subsequently in R.

Drozney (2004) (ON SC), 184 C.C.C. (3d) 311 adopted the same approach andreasoning insofar as an information to obtain a search warrant was concerned as opposed to a wire-tap, but again what is significant hereis that counsel wanted to cross-examine the officer on his affidavit in support of a judicial authorization, and as such, leave was required.The distinction between these cases and the proceeding before me is clear.

In the absence of an interlocutory order, there is no need toseek leave to cross-examine a police officer about facts surrounding the lawfulness of an arrest notwithstanding the existence of agenuine concern about protecting the identity of the confidential informant. 6: Conclusion [44] The defence does not have to bring A Dawson application or seek leave to cross-examine the handler of the confidentialinformant at the preliminary hearing. Crown counsel should notify defence counsel if she intends to call officer Sieberer or make himavailable at the hearing. Defence counsel can then proceed as she sees fit.

Insofar as protecting the informer’s privilege is concerned, itis a concern held not only by the Crown but also shared by the court. [45] I appreciate that informers play an important role in the criminal justice system. I also appreciate that the officer has a dutyto actively protect the secrecy of the informer and to that end he must be careful not to disclose information that might identify him. Theconcern has been raised. This does not mean the officer may not have anything useful and relevant to say at the hearing. I cannot predictwhat questions Ms.

Comand will ask, nor can I predict what answers her questions may elicit. I trust that if the handler is called totestify, he will answer all that he can relevant to the inquiry while remaining duty bound to the informer privilege. Released: November 4, 2016 ________________________ Gregory A. Campbell Justice