R. v. Lamothe Date:, 2016 BCPC 201

Citation: R. v. Lamothe Date: 20160607 2016 BCPC 201 File No: 59173-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. FREDERIC LAMOTHE ORAL RULING ON VOIR DIRE RE ADMISSIBILITY OF EXPERT EVIDENCE OF RICHARD VAN LEEUWEN OF THE HONOURABLE JUDGE B. DYER Counsel for the Crown: L.H. Dumbrell Counsel for the Defendant: G. Cranston Place of Hearing: North Vancouver , B.C.

Date of Hearing: June 7, 2016 Date of Judgment: June 7, 2016 [1] THE COURT: These reasons address the following evidentiary issue: What evidence can an accused properly offer on a voirdire where he or she alleges, on a search of his or her property pursuant to a warrant, that s. 8 Charter rights have been breached becausethe Information to Obtain placed before the authorizing justice of the peace in support of the issuance of the warrant was defective in oneor more material ways?

Can this evidence include opinions from an expert witness and, if so, on what? [2] This decision does not deal with whether or not the warrant in question ought to have issued at all or whether the accused'sCharter rights were earlier breached and, if so, the effect.

That issue is as yet outstanding in the sometimes called "Garofoli review" Iam conducting in the case at bar. [3] I will now refer to some background in this case, before attempting to answer this question. [4] The accused is charged with production of marihuana and possession of same for purposes of trafficking, contrary to ss. 7(1)and 5(2) of the Controlled Drugs and Substances Act, hereinafter referred to as "CDSA." [5] The trial before me commenced on December 8, 2014. I was then advised by Mr.

Cranston, counsel for the accused, that therewas only one issue for me to decide, namely, whether the search warrant, which was issued pursuant to s. 11(1) of the CDSA, ought tohave been granted authorizing the police to search the accused's residence in Whistler, British Columbia, on or about August 6, 2013. [6] Mr. Cranston alleged that the affidavit or Information to Obtain sworn by Constable Ashley Harker of the RCMP on June 3,2013 (I think this date is likely in error) was insufficient and did not provide a proper basis for the justice of the peace, C.L.

Roberts, toauthorize the issuance of the search warrant in the first instance. [7] He later, on December 9, 2014, on my request, provided a three-page document setting out particulars of the materialmisrepresentations and insufficient information he alleged were contained in the affidavit or ITO. He submitted that if the ITO was sodeficient as to not be a proper basis for the authorization of the issuance of the warrant, that the search conducted by the police was thena warrantless search and was prima facie invalid, and thus his client's s. 8 Charter rights had been breached.

It would follow in suchevent that the court should, under s. 24(2) of the Charter, exclude all evidence obtained by the police pursuant to the unlawful search. [8] At the outset of this trial, Mr. Cranston provided the court and Crown counsel with a letter dated December 5, 2014, indicating,in essence, a desire to cross-examine Constable Harker on his affidavit pursuant to, inter alia, R. v. Garofoli, (SCC),[1990] 2 S.C.R. 1421, and setting out in 13 numbered paragraphs the areas or issues he wished to explore on cross-examination.

A copyof this letter, in my understanding, had earlier been provided to the then Crown counsel, Mr. Whyte. This procedure is helpful. Mr. Whyte agreed that the accused had the necessary standing, by reason of his ownership of the residence, to advance a Charter issueand, going through the various points in Mr.

Cranston's letter of December 5, 2014, agreed that with respect to some, but not all points,that in his view the defence had a right to cross-examine Constable Harker on same. [9] I permitted cross-examination to occur, giving the required leave at the outset of the trial, and a voir dire was then declaredafter certain admissions of fact made by the accused had been filed. [10] Constable Harker was called by Crown and was cross-examined extensively by Mr.

Cranston thereon with respect to theinvestigation and the various steps involved in applying for the authorization and search warrant in issue. [11] At the conclusion of this cross-examination, which I note involved some questioning of Constable Harker relating to hisattendance at the residence on June 13, 2013, with Sergeant Mulhall, when Mulhall used an instrument to take an FLIR reading of thepower line believed to be entering the residence from the street, both counsel appeared to indicate they had no further evidence theywished to call on the voir dire. [12] At this point, the voir dire appeared to be concluding, as is often the case in these types of matters, in my experience, with nofurther witnesses to be called beyond the affiant of the ITO here, as is commonplace, a police officer involved to some extent in theinvestigation leading up to the search and ultimate arrest of an accused. (See earlier decisions on my part on point: R. v.

Rossiter, 2006BCPC 306, and R. v. Moore et al., 2013 BCPC 131 , 2013 BCPC 0131.) [13] The trial was adjourned to December 9, 2014. Mr. Cranston then made an application to reopen the voir dire which hadconcluded on December the 8th. He indicated he had an electrical engineer, one Richard van Leeuwen, in court and wished to call himto testify on the voir dire. I was advised that Mr. van Leeuwen had some experience and expertise to offer with respect toforward-looking infrared or FLIR testing, as was used in the case at bar on June 13, 2013, by Sergeant Mulhall outside the residence inWhistler, and that Mr.

Cranston wished to put certain opinions that this witness had developed before the court. [14] Crown opposed the reopening of the voir dire on several bases, including that he had received only three hours' prior oral noticeof Mr. Cranston's intent to call this engineer, and that s. 657.3 of the Criminal Code had not been complied with. In addition, hequestioned whether or not the proposed evidence would meet the legal requirements for admissibility set out in the well-known decision,R. v. Mohan, (SCC), [1994] S.C.J.

No. 36. [15] On December 9, 2014, Crown did, however, have a copy of Mr. van Leeuwen's curriculum vitae. Mr. Cranston said that onepiece of evidence he wished his engineer to give related to a smart hydro meter having been incorrectly installed at a material time, andsuggested that in essence, as I understood him, that this could have been the cause of the excessive heat detected in the service line bySergeant Mulhall on June 13, 2013, when he did his FLIR test. Had the meter been properly installed, electrical current could be carriedin the line without it overheating.

[16] Mr. Cranston proposed that this expert evidence and related evidence would be led by him in amplification and could be usedby me in the review of the authorization granted by the justice of the peace C.L. Roberts on August 6, 2013, to issue the search warrantwith respect to the residence. [17] My then sense of Mr.

Cranston's submission was that in the review process mandated in Garofoli, supra, he felt that this expertevidence would cause me to question, based on all the evidence, whether or not the justice of the peace had sufficient reliable evidencethat might reasonably be believed upon which he could have issued the authorization for the search warrant in issue. See, for example,R. v. Araujo, 2000 SCC 65 at paragraph 54. [18] No case was provided by Mr. Cranston or Mr.

Whyte for the Crown where, on the type of voir dire I was conducting, as part ofthe warrant authorization review process, an expert, or for that matter any witness other than the affiant of the ITO affidavit, had beencalled to testify on the voir dire with two exceptions:

(1) R. v. Sissons, 2011 BCSC 884, where apparently the accused testified on thevoir dire; and

(2) R. v. Valiquette, 2010 BCSC 1423, where Halfyard J. gave defence counsel leave, pursuant to R. v. Vukelich (1996), (BC CA), 108 C.C.C. (3d) 193 (BCCA), to cross-examine a hydro security contractor, one Wolfgang Presslauer, whoprovided a report forming part of the ITO in issue, and a Constable Glanville who supervised the ITO deponent, one Constable Rundel,and who communicated information set out in the ITO from Mr. Presslauer to Constable Rundel.

Halfyard J. refused defence'sapplication to cross-examination Constable Rundel. [19] In Valiquette, the Crown called the above two witnesses and, in addition, a Staff Sergeant Wilton. The accused called noevidence on the voir dire conducted in Valiquette. The FLIR technique was not used in Valiquette by any witness. It was used in R. v.Wilson, 2011 BCCA 252, but its efficacy was not in Wilson being challenged as in the case at bar. [20] Mr.

Presslauer really testified for the most part as to factual matters, for example, measurements of the amount of electricitybeing drawn into the subject property, but did form an opinion, and gave it in evidence on the voir dire, that a theft of electricity wasoccurring through one service line to the accused's property by reason of the amount of power being used being outside normal limits. Mr.

Presslauer's evidence was seemingly admitted and accepted by the court in amplification of the evidence on the voir dire, but only ina limited way to correct, for example, any error or confusion caused by the use in the ITO of the offence of "theft of telecommunication",rather than theft of electricity (see paragraph 53), and to assess whether contents in or not within the ITO could be said to benon-disclosure or misleading (see paragraphs 49 and 54). [21] Halfyard J. found that Mr.

Presslauer had told Constable Glanville things, for example, that hydro meters on the property hadnot been inspected, that had not found their way into the ITO, and which should have, I assume, by way of Constable Glanville tellingthe affiant Constable Rundel what these facts were.

This is so, notwithstanding Halfyard J. stating in paragraph 49 of his reasons thatmany of the undisclosed facts that he found were unknown to Constable Glanville and Rundel. [22] All this said, Valiquette does not deal with an expert giving evidence on a voir dire where the authorization of a search warrantis, as here, in question. [23] On the second day of argument, I pointedly asked each counsel if either had any cases where, as part of a voir dire dealing withthe sufficiency of an ITO in a search warrant case, an expert had been called by Crown or defence, and I was told by both counsel, totheir knowledge, there were none.

I gave both counsel further time to conduct further research and, if cases were located, to exchangesame and remit them to me in May of 2016. None were forthcoming. Such a case does exist, which I shall come to shortly. [24] I return to Mr. Cranston's application to reopen the voir dire. My decision on December 9, 2014, was to do so, but on the basisthat Mr. Cranston must first comply with s. 657.3 of the Criminal Code and provide Crown counsel with a proper written report inadvance of the next trial date, and I directed that one further day be set, and the date eventually chosen was June 25, 2015.

New Crowncounsel, Mr. Hartney, then appeared on this matter. This reopening of the voir dire did not amount to an acceptance on my part that Mr.van Leeuwen was a proper witness with appropriate relevant evidence to give on the voir dire. [25] The matter could not proceed on June 25, 2015, due to Mr. van Leeuwen's report not having reached Mr. Hartney in a timelyway, due to an administrative error, I believe, in Mr. Cranston's office.

I accept that Crown first had sight of it on or about the afternoonof June 23, 2015. [26] I granted Crown's unopposed request for an adjournment due to the late notice of this report. Mr. Hartney made it clear in hissubmissions this day that he did not concede, in essence, that Mr. van Leeuwen had proper expert evidence to give in this reopened voirdire. I directed that the voir dire be set for two further days and dates were initially set in December 2015, and later, pursuant to anunopposed adjournment application made by Mr.

Cranston for personal reasons, reset April 20 and 21, 2016. [27] It was understood on June 25, 2015, that the first order of business on the next hearing date would be the conduct of a voir direwithin the ongoing voir dire, so to speak, as to the qualifications of Mr. van Leeuwen to give expert evidence at all in this case. I recalldirecting Mr.

Cranston to notify Crown by July 17, 2015, as to the scope of his engineer's proposed expertise and the areas in which hesought to have him give expert evidence. [28] I repeat at this point in this case, there was no finding by me and no agreement between counsel that Mr. van Leeuwen could becalled as an admitted expert, as frequently occurs, for example, in a civil trial where the plaintiff, for example, alleges that by reason ofsome personal injury he or she is unable to work, and both parties routinely call medical experts, doctors, to testify as to the nature andextent of the injury, limitations flowing from it, and prognosis and similar matters. [29] On April 20, 2016, Mr. van Leeuwen was present in court.

I asked Mr. Cranston how was his proposed evidence relevant to thereview which I was conducting on the voir dire? I was advised, in a

summary way, that he could assist the court as to whether or not thedeponent of the ITO, Constable Harker, had been wilfully blind as to facts that ought to have gone in his affidavit, and perhaps relating tothings which he ought to have checked out and, I suppose, included therein when he prepared it and swore it. [30] I agreed to conduct a further voir dire to assess: (

a) whether the engineer could testify at all, and (

b) his qualifications. At this

point, I had not seen his report nor had I heard any reasoned submission from Crown as to whether I should permit Mr. van Leeuwen to testify or not. [ 31 ] Mr. Cranston called Mr. van Leeuwen to testify as to his qualifications and filed his CV, together with a one-page document dated July 30, 2015, setting out his FLIR experience. The same were marked as Exhibit "H" and "I" respectively on the voir dire . [ 32 ] Mr.

Cranston sought to qualify Mr. van Leeuwen in five distinct areas as follows: 1) the operation and use of FLIR (forward-looking infrared); 2) the transmission of electricity in the broadest sense; 3) the operation of BC Hydro with respect to residential customers, specifically with respect to the delivery of electricity to a residence via various hardware, for example, wires and meters; 4) calculations BC Hydro uses in developing average house or residential use of electricity; and 5) the

interpretation of BC Hydro bills, for example, as exhibited to the affidavit of one Scott MacDonald, a BC Hydro employee, sworn August 1, 2013, which forms part of the evidence now before me at this hearing. [ 33 ] Mr. van Leeuwen gave some short direct evidence and explained that a FLIR device was like a camera, and agreed that an example might be the sort of device some residential contractors use to detect whether heat loss is occurring in a residence due to a lack of proper insulation.

They detect a heat signature via infrared radiation they can sense that comes from an object, such as a failing electrical connection that might be heating up. He said he had used one many times in his work to detect hotspots in electrical systems.

He had worked with the Surrey fire chief historically to see if such devices could detect unsafe electrical installations on buildings that might have grow ops therein. [ 34 ] His report was marked as Exhibit "J" on the voir dire , however on the basis that it was not to be considered as evidence thereon that I could consider until I had made this decision as to whether or not he could give evidence at all and, if so, on what.

This filing was the first time I had seen his report, as the trial judge could understand just what it was he proposed to give in his evidence. [ 35 ] Mr. van Leeuwen was very extensively cross-examined by Mr. Hartney. I do not intend to summarize what he said thereon in these reasons. Mr. Cranston asked no questions in reply. I then received lengthy oral submissions from both Crown, Mr. Hartney, and defence, Mr. Cranston, as to whether or not I should allow Mr. van Leeuwen to testify as an expert and, if so, as to what, and accept that evidence that he had given on the voir dire . [ 36 ] Mr.

Hartney was still opposed to my doing so. Before setting out in a

summary way his position, I should comment on Mr. van Leeuwen's report. At page 3, it sets out in a "list of questions", some 11 questions Mr. Cranston asked him to answer, no doubt in a letter, some, for example, Question 10, having multiple sub questions.

It is clear that he had been asked to review various documents, including the affidavit sworn by Constable Harker, and a statement of one Rob Whitton, apparently a fire chief, dated September 9, 2013, which document is not before this court on any basis at the voir dire . [ 37 ] As well, he reviewed and commented upon the following documents: 1) BC Hydro "quick facts" for the year ended March 31, 2012, apparently obtained on the BCH Internet site; 2) four surveillance photos, undated and unsigned, said at page 5 of his report to be numbered 87-89, Valley Drive photos — Harker (2) pdf — but referred to at page 10 of his report to include a Photo Number 90; 3) hydro usage documents appended to Mr.

MacDonald's above affidavit; 4) BC Hydro bills at page 11 and 12, it is unclear what bills he is referring to, as he did not cross-reference in his report as to precisely what documents he was referring to as scheduled initially in his report at page 5; 5) "Daily usage summaries" — at page 12, I assume these may be the "hourly electricity consumption" records appended to the above MacDonald affidavit, but again Mr. van Leeuwen does not make this clear with a reference to exactly which documents listed at page 5 of his report he is talking about; 6) six surveillance photos, undated and unsigned — Document 10 listed at page 5 of his report. [ 38 ] Of these six categories of documents, numbers 1, 2, 4, and 6 are not, I believe, currently before the court.

Position of Crown [ 39 ] I could only permit Mr. van Leeuwen to testify if his proposed evidence met the four-part test in R. v. Mohan , supra . Sopinka J. said this on point at pages 20 to 21 of the court's reasons:

(1) Expert Opinion Evidence Admission of expert evidence depends on the application of the following criteria:

(

a) relevance; (

b) necessity in assisting the trier of fact; (

c) the absence of any exclusionary rule; (

d) a properly qualified expert. (

a) Relevance Relevance is a threshold requirement for the admission of expert evidence as with all other evidence. Relevance is a matter to bedecided by a judge as question of law. Although prima facie admissible if so related to a fact in issue that it tends to establish it, that doesnot end the inquiry. This merely determines the logical relevance of the evidence. Other considerations enter into the decision as toadmissibility. This further inquiry may be described as a cost benefit analysis, that is "whether its value is worth what it costs." SeeMcCormick on Evidence (3rd ed. 1984), at p. 544.

Cost in this context is not used in its traditional economic sense but rather in terms ofits impact on the trial process. Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value isoverborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it ismisleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability.

While frequentlyconsidered as an aspect of legal relevance, the exclusion of logically relevant evidence on these grounds is more properly regarded as ageneral exclusionary rule (see Morris v. The Queen, (SCC), [1983] 2 S.C.R. 190). Whether it is treated as an aspect ofrelevance or an exclusionary rule, the effect is the same. The reliability versus effect factor has special significance in assessing theadmissibility of expert evidence. [40] I will deal with what facts I consider to be in issue on the voir dire I am conducting below. [41] Mr.

Hartney argued that the proposed engineer's evidence was not relevant to a fact in issue and should be excluded on thisbasis alone. Crown did not really challenge the obvious, that Mr. van Leeuwen was an electrical engineer and knew more aboutelectricity and FLIR testing than did Constable Harker. He took some time to take me through various parts of Mr. van Leeuwen'sreport, with a view to attempting to show me why his opinions or facts were not relevant. I do not intend to refer to each point he made inturn. [42] In fairness to Mr.

Cranston, he did concede on behalf of the accused that certain opinions in Mr. van Leeuwen's report were notrelevant and agreed to exclude them from my consideration. [43] In addition, Mr. Hartney said that certain parts of Mr. van Leeuwen's report dealt with matters of argument or points that werenot so technical that the court could not, without the aid of expert evidence, understand them itself and excluded those as well.

Crownargued that some of the proposed evidence, for example, Fire Chief Whitton looking at the meter base likely after the search warrantissued, cannot be relevant as it is a point or fact developed after Constable Harker swore his affidavit, and hence not a point that could bemisrepresented or not disclosed therein, or one he was wilfully blind to. [44] Crown said that if any of Mr. van Leeuwen's evidence was to be admitted and the voir dire reopened for this purpose, I shouldlimit it to his comments on the FLIR technology used in this case and the result. Position of the defence [45] Mr.

Cranston submitted a number of points in support of my finding that Mr. van Leeuwen should be permitted to testify as partof the accused's right to make full answer and defence.

Some of the more important ones are summarized by me, as I understoodcounsel's submission, as follows: 1) An electrical expert was necessary to tell the court why the size of or, I suppose, gauge of a service line was important for FLIRtesting. 2) Mr. van Leeuwen could indicate that there was hydro usage information relating to the residence that was available to ConstableHarker, had he cared to call BC Hydro, that should have been included in the ITO but was not. 3) Harker deposes, for example, at paragraph 23(

i) and the following, on page 42-3 of his affidavit, that a strong heat signature on thepower line running from the main line to the subject property was supportive of an abnormally high use of power and a grow operation,whereas defence, based on Mr. van Leeuwen's opinion, submits this is wrong. One cannot tell from a hot service wire the amount ofpower being used in a residence. Thus, the proposed expert's evidence is needed to correct a factual inaccuracy in the ITO.

Related tothis point, the expert could testify as to the potential causes of the service wire to the subject residence being hot, and as per the "Reply toQuestion 10(c)" at page 14 of Mr. van Leeuwen's report as to potential sources of non-manmade heat that might affect the FLIR readingstaken. 4) The expert would testify the meter on the subject residence did not make a proper connection to its base and that this would produceor could produce heat in the service wire found on the FLIR testing.

5) The expert could testify as to what BC Hydro's employee Mr. MacDonald had told him when he clarified certain daily residenceusage entries by telephone with him relating to the attachments to MacDonald's affidavit. I note this would be hearsay evidence and thatMr. van Leeuwen's proposed evidence, "Reply to Question 6" at page 12 of his report, is also at best speculative on Mr. van Leeuwen'spart. 6) The expert can clarify that there is an error in the calculation done by the police of the average daily usage of the power in the homeas per "Reply to Question 10(a)" at page 13 of Mr. van Leeuwen's report. 7) Mr.

Cranston said that if an expert could give information to the court that related to something not within the average person'sknowledge and that helped the court, he should be permitted to testify. [46] He seemed somewhat critical of the process followed by me on the voir dire to determine both what Mr. van Leeuwen'squalifications might be and whether his report should be filed at all on the voir dire, and related to this issue, whether he should testify atall. In particular, he seemed to feel it was unnecessary to go through his expert's report in the detail in which Mr. Hartney did.

Unfortunately where, as here, Crown objected to the report being admitted into evidence at all and the expert being called at all, on thebasis here advanced that the opinions offered were not relevant, it seems there was no other way. [47] In reply, Mr. Hartney argued that the court must use some care where the expert evidence sought to be led relates to somematter known to the expert or even BC Hydro that was not known to the affiant Constable Harker. I will touch on this important pointbelow. The law [48] Mr.

Hartney concedes that on a voir dire, as here, where one of the main issues the court is being asked to decide is as perparagraph 52 of R. v. Wilson, 2011 BCCA 252, whether the ITO, as amplified on review, is capable of supporting the search warrant, thedefence can call witnesses, including experts, provided their evidence is relevant and relates to a fact in issue. [49] I agree with this general proposition.

The cases in this area of the law, namely, review of ITOs, are legion and in some of them,other witnesses have been called on the voir dire beyond the affiant of the ITO, usually, as I have said, a police officer. At times a hydroemployee is called where, unlike in the case at bar, for example, theft of electricity is an issue. Most often, further witnesses are calledby the Crown and cross-examined by the defence: R. v.

Valiquette, supra, is an example of such a case. [50] The test to be applied on a judicial review of a search warrant and the sufficiency of the ITO in support is found in R. v.Garofoli, supra, at paragraph 56, where Sopinka J. said this: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere.

In this process, the existence of fraud, non-disclosure, misleading evidence and newevidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to beany basis for the decision of the authorizing judge. [My own emphasis added] [51] In R. v. Araujo, supra, the test has been described at paragraph 54 and in paragraph 57 as follows: 54 . . .

An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balancesthe need for judicial finality and the need to protect prior authorization systems. Again, the test is whether there was reliable evidencethat might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewingjudge, the application should have been granted at all by the authorizing judge. [52] Then in paragraph 57, quoting Proulx J.A. of the Quebec Court of Appeal with approval in R. v.

Bisson (1994), (QC CA), 87 C.C.C. (3d) 440, upheld in the Supreme Court of Canada, (SCC), [1994] 3 S.C.R. 1097, as follows: . . . [T]he function of the reviewing judge is to determine whether there is any evidence remaining, after disregarding the allegationsfound to be false and taking into consideration the facts found to have been omitted by the informant, upon which the justice could besatisfied that a search warrant should issue . . . [My own emphasis added] [53] More recently in R. v. Morelli, 2010 SCC 8, at paragraphs 40 to 43 (referred to by Halfyard J. in R. v.

Valiquette at paragraph41) the Supreme Court of Canada reiterated the test and clarified what was meant by amplification as distinct, I expect, from "newevidence" referred to in Garofoli, above, as follows: [40] In reviewing the sufficiency of a warrant application, however, "the test is whether there was reliable evidence that mightreasonably be believed on the basis of which the authorization could have issued" (R. v. Araujo, [citations omitted] at para. 54 . . . ).

Thequestion is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliableevidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and thatevidence of that offence would be found at the specified time and place.

[41] The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, "the reviewing court must exclude erroneous information" included in the original ITO (Araujo, at para. 58).

Furthermore, thereviewing court may have reference to "amplification" evidence — that is, additional evidence presented at the voir dire to correct minorerrors in the ITO — so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberateattempts to mislead the authorizing justice. [42] It is important to reiterate the limited scope of amplification evidence, a point well articulated by Justice LeBel in Araujo.

Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that wasnot initially supported by reasonable and probable grounds.

The use of amplification evidence cannot in this way be used as "a means ofcircumventing a prior authorization requirement" (Araujo, at para. 59). [43] Rather, reviewing courts should resort to amplification evidence of the record before the issuing justice only to correct "someminor, technical error in the drafting of their affidavit material" so as not to "put form above substance in situations where the police hadthe requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made" such errors(para. 59).

In all cases, the focus is on "the information available to the police at the time of the application" rather than information thatthe police acquired after the original application was made (para. 59). [My own emphasis added] [54] The focus in the above four paragraphs in R. v. Morelli seems to be on what the Crown and police may be permitted to do intheir evidence on a review hearing, and not on what is permissible evidence in such a hearing to be offered by the defence, the very issueI am dealing with in these reasons. [55] R. v. Plant, (SCC), [1993] S.C.J.

No. 97, is an example of a case where seemingly a police witness other thanthe ITO affiant was called on a voir dire to clarify, not by amplification, the exact address of a residence a tipster had earlier given to theaffiant, and to correct a misstatement on point in the ITO found to be erroneous, but apparently made in good faith. This case is anauthority in support of the proposition that errors in the ITO made in good faith can be corrected with the Crown calling further evidenceon the voir dire. [56] Plant is referred to in R. v. Madrid, (BC CA), [1994] B.C.J. No. 1786 (B.C. CA) at paragraph 51 and 54.

InMadrid, an ITO police affiant was cross-examined by defence on the voir dire, such evidence being described as "amplification". McEachern C.J.B.C. rejected a defence argument that such cross-examination evidence could only be used to weaken the force of theITO evidence, finding, in essence, it could be used both to help or hurt the defence case: see paragraph 60.

He then said this as to thescope of permissible cross-examination, relating to amplification evidence, at paragraphs 61, 62, and 67 in Madrid: 61 It is apparent that the focus of permissible cross-examination is intended to be fraud, non-disclosure, and misleading evidence.

But Sopinka J. also mentioned "new evidence." This must mean that when the reviewing judge considers the matter again after thecompletion of cross-examination, he must decide, on this enlarged basis, "whether there continues to be any basis for the decision of theauthorizing judge." In this case, the reviewing judge obviously considered he could use the evidence given on cross-examination indeciding that Corporal Rioux had indeed made appropriate enquiries about the reliability of the informants and about other matters. 62 There are some post-Garofoli authorities that seem to use "new evidence" given on cross-examination to support the conclusionof the authorizing judge: [authorities and citations not included]. . . . 67 I take the above-quoted passage from Garofoli to mean that fraud and non-disclosure, etc., are not prerequisites to review aspreviously thought.

Although Sopinka J. said the cross-examination would be limited, counsel are now exploring such questions bythorough and far-reaching and exhaustive inquiries. As a result, trials such as this one consume enormous amounts of court time in thepursuit of fraud, mistake or non-disclosure. These ingredients, if established on cross-examination or otherwise, may destroy the basisfor the decision of the issuing judge. But it does not follow, in my view, that the ordinary principles of advocacy do not apply.

Evidencegiven on an issue in a Garofoli cross-examination can be probative both for and against all parties subject to all just exceptions, just as inthe trial proper. I need not consider the further question of whether after-acquired testimony given on the review may be considered asthat problem does not arise in this case. [57] "The above-quoted passage from Garofoli" referred to by Chief Justice McEachern is paragraph 56, which I have set out abovein paragraph 50 of these reasons.

It is a "test" rather easily stated but in my view, not so easily applied in the voir dire. [58] Madrid is thus binding authority that on a voir dire, defence counsel can properly cross-examine the ITO deponent, at least toshow fraud, non-disclosure, or mistake or misleading content in the ITO. It does not however answer what evidence defence may itselfcall on the voir dire. For example, just what is "after acquired testimony given on the review"?

[59] R. v. Monroe, (BC CA), [1997] B.C.J. No. 1002, is the only case I have located in my own researches whichdeals with the matter I am asked to decide in the case at bar: whether or not an expert witness can testify and as to what on a voir dire ina case where an authorization for a search warrant is being reviewed. [60] In Monroe, the issuance of a search warrant was questioned in a grow op case by reason of the ITO being allegedly deliberatelymisleading and deceptive. The ITO had been sworn by a police officer.

On the voir dire, at trial, defence sought to challenge theaccuracy of certain facts set out in the ITO, both through cross-examination of the affiant and by calling evidence.

Esson J.A. referred tothe cross-examination of the informant or ITO affiant and evidence led by the defence as bringing out a number of "amplifying points". [61] The identity of all defence witnesses, save one, was not made clear in his reasons, but again this case supports the propositionthat the defence can call evidence on a voir dire to show facts deposed to in the ITO are deceptive, if not wrong, which in Monroe relatedto the exact state of window coverings on the grow op residence. [62] In Monroe the defence called an electrical engineer, as proposed in the case at bar.

However, neither his expertise nor hisopinion was challenged, unlike in the case at bar. Nonetheless, our Court of Appeal was not critical of this tactic on the part of defencecounsel, at least insofar as the engineer's evidence related to the level of power consumption at the grow op residence. [63] Esson J.A. said this on point at paragraphs 17, 18, and 20 of the court's reasons: [17] On the matter of consumption of electricity, the defence called an electrical engineer who testified that a consumption level of5,400 watts is not unusual.

It could be drawn by devices such as three or four baseboard heaters, an electric stove with the oven on, anelectrical dryer and other combinations of appliances or other electrical devices in common use. It would be "fairly low" for a househeated electrically and not unusual for one heated in other ways. He also said that the technique for measurement relied on by theofficers was not meaningful because it gives only "an instantaneous reading." To get a reliable indication it would be necessary toaverage consumption over a much longer period of time.

The instantaneous reading, he said, "doesn't mean very much" and, to him,seemed "totally meaningless". [18] Neither the expertise nor the opinion of the engineer was challenged. The informant, in his evidence, did not show himself to beknowledgeable in these matters. The evidence at trial establishes that the facts stated in the information to create the impression that thelevel of power consumption was consistent only with a grow operation are not capable of establishing that.

They were calculated to givea misleading impression. . . . [20] I adopt the last paragraph of that passage as applying to the information in this case. Clearly, the informant did not correctly setout the facts with respect to the window covering and he stated the observations with respect to power consumption in a way calculatedto give a false impression.

It follows in my view that the contents of the information dealing with those matters must be excised. [My own emphasis added] [64] The "last paragraph" above referred to in paragraph 20 of Monroe is in fact a reference to paragraph 37 of the well-known case,R. v.

Dellapenna (1995), (BC CA), 62 B.C.A.C. 32 (BCCA), wherein Southin J.A. made it clear that affiants of ITOsshould use great care in swearing such affidavits and ask themselves each time, inter alia, "Have I got this right?" [65] Monroe is therefore seemingly some binding authority that an expert with relevant evidence may testify for the defence andthat, where overall electrical usage in an alleged grow op is in issue, he or she may testify as to causes of power consumption andtechniques of measurement of same. [66] The case of R. v. Morris, 1998 NSCA 229 , [1998] N.S.J. No. 492 (N.S.

CA), the decision given by Cromwell J.A., ashe then was, dealt with an appeal from a trial decision where a search warrant was allowed to stand and a conviction for possession ofcannabis resin was thus entered, based on evidence obtained in the search.

He deals with the importance of the proposed search of aprivate residence being demonstrated to an impartial judicial officer, the process of "prior authorization" as being of fundamentalimportance for the prevention of unreasonable searches: see paragraph 32. [67] Monroe, supra, is quoted with approval at paragraph 44, as was Madrid, supra, at paragraph 68, as was Plant, supra, atparagraph 51 and 53, where Cromwell J.A. said this: 53 Plant, in my view, stands for two propositions relevant to this aspect of the appellant's argument.

First, misleading or inaccurateinformation does not have to be totally excluded from consideration unless it is part of a deliberate attempt to mislead the issuing justice. Second, only the part of the Information that is erroneous needs to be excluded from consideration and that material, provided it is notpart of a deliberate attempt to mislead the Justice of the Peace, may be amplified by evidence on review showing the true facts. [68] This passage in R. v. Morris is quoted with approval in R. v. Araujo by the Supreme Court of Canada at paragraph 56, in itsdiscussion of subfacial sufficiency of affidavits.

Thus, LeBel J. stated in Araujo at paragraph 57: Where the erroneous information results from a simple error and not from a deliberate attempt to mislead the authorizing judge,

amplification may be in order. [ 69 ] R. v. Plant is discussed in the preceding paragraph 56 as an example where there was no deliberate attempt to deceive found, and the reviewing judge excised a house address erroneously given by the affiant, but allowed this fact to be replaced with further like information obtained on review from the informant. [ 70 ] I return to Cromwell J.A.'s reasons in the Morris decision.

There then follows in Morris , at paragraphs 62 to 93, a lengthy discussion as to the matter of amplification evidence in ITO review cases, by which he refers generally to supplemental evidence adduced on the review: see paragraph 62. [ 71 ] At paragraph 72, part of 73, and 78, he makes the following comments: 72 The Supreme Court has not discussed the issue of amplification comprehensively, but its judgment in Plant , supra sheds some light on the question of amplification in s. 8 cases involving challenges to search warrants. The facts of the case have been summarized above.

The amplification aspect of the case concerned the evidence adduced before the reviewing judge indicating that the facts actually obtained from the source were not as stated in the Information to obtain the warrant. Specifically, the source did not provide an address. The evidence, however, also revealed that the police had been able to locate a residence matching the description and location given by the source.

The Court held that, for the purposes of review, only the information actually obtained from the source should be considered rather than the statements attributed to him in the Information to obtain the warrant. The Court added, however, that this information could be amplified by reference to the fact that the police had been able to locate a residence matching the description supplied by the source.

In effect, Plant holds that evidence is admissible, not only to show the error, but also to show the true state of facts relating to the erroneous assertion. 73 The question then becomes whether this reasoning applies to evidence beyond that obtained from the examination of the affiant on the review. This broader issue of whether evidence elicited by the Crown on a voir dire could be so used was addressed in R. v. Buda , [1995] B.C.J. No 1091 , a search warrant case.

There, as in this case, the issue of amplification had not been identified at the time of the voir dire at which evidence relevant to the s. 24(2) issue had been adduced. On the voir dire, the affiant and other officers were called by the Crown. Braidwood, J. (as he then was) concluded that this additional evidence could be considered by him in reviewing the issuance of the warrant . . . . . . 78 With respect, this view, if it is meant to apply to s. 8 challenges going behind the face of the warrant and the Information to obtain, is not consistent with Sopinka, J.'s holding in Plant .

In considering the informer's statements, Sopinka, J. deleted the incorrect and misleading aspects but allowed them to be amplified by the evidence adduced before the reviewing judge. It is accordingly no longer possible to take the position, in the context of a s. 8 challenge which goes behind the face of the warrant, that the reviewing court cannot consider "new" evidence.

I prefer the approach of Braidwood, J. in Budai . [ 72 ] Cromwell J.A. concluded his discussion of amplification in Morris at paragraphs 90 and 91 as follows: 90 I conclude that in a s. 8 voir dire challenging a warrant issued pursuant to an Information to obtain which is valid and adequate on its face, evidence is admissible to explain non-deliberate errors or omissions on the review provided that the information was known to the police officers involved in obtaining the warrant at the time it was obtained and subject, of course, to the requirement that unconstitutionally obtained evidence cannot be considered.

Although it is not, strictly speaking, necessary for me to do so for the purposes of this case, I am inclined to accept the Crown's position that deliberately false and misleading material placed before the authorizing justice is not subject to amplification. 91 It may be helpful to summarize the principles I have adopted to the review in a s. 8 voir dire at trial of a warrant supported by an Information to obtain which is valid on its face: 1. The trial judge is to determine whether the justice of the peace could have validly issued the warrant; 2.

In conducting that review, the trial judge may hear and consider evidence relevant to the accuracy of and motivation for the material included in the Information to obtain a search warrant; 3. Fraudulent or deliberately misleading material in the Information does not automatically invalidate the warrant. However, it may have this effect if the reviewing judge concludes, having regard to the totality of the circumstances, that the police approach to the prior authorization process was so subversive of it that the warrant should be invalidated.

In addition, fraudulent and deliberately misleading material should be excised from consideration;

4. In assessing the validity of the warrant, the trial judge, generally, is entitled to consider all evidence bearing on the existence in fact of reasonable and probable cause shown to be in the knowledge of the police at the time the warrant was sought. However, such evidence cannot be used if it was obtained by unconstitutional means or (I am inclined to think) to amplify fraudulent or intentionally misleading material in the Information to obtain. [My own emphasis added.] [ 73 ] R. v. Morris has been followed in B.C., for example, in R. v. Gardner , 2015 BCSC 801 , and R. v. Bui , [2005] B.C.J.

No. 1219 , and referred to with approval in R. v. Araujo , supra , at paragraph 54 and the following, a case provided to me by Mr. Hartney, supportive of the court's ability on a review of a search warrant ITO to permit evidence to correct errors in an ITO.

Araujo did not involve any non-affiant witness being called to testify at the voir dire , but rather was a consideration of the sufficiency of a 130-page affidavit prepared by an RCMP officer in support of an application to obtain a warrant, not to search a suspected grow op, but to permit electronic interception of private telecommunications. [ 74 ] In Araujo , the police affiant had confused which of 10 informants had given him, via a second officer amanuensis, two facts and, knowing of an error on point prior to trial, he had not disclosed such errors to anyone, including to Crown counsel.

The trial judge held that while the errors were not deliberate, and thus were inadvertent, that they were serious enough, having regard to his non-disclosure of his error and his explanation for same at trial (which the trial judge did not believe) that the entire affidavit had to be rejected due to his negative finding as to the affiant's credibility. [ 75 ] The Supreme Court of Canada rejected this methodology and finding, calling the few errors "drafting mistakes, perhaps a very minor typographical error" (see paragraph 60) and said that amplification evidence could allow in essence correct letter descriptors to be used to replace incorrect letter descriptors for one confidential informant. [ 76 ] Araujo is hence high authority for the proposition that amplification evidence (there from the affiant himself) can be used on a review of an ITO to correct inadvertent errors arguably of a minor or technical nature: see paragraphs 59 and 61. [ 77 ] The Supreme Court of Canada also rejected the trial judge's credibility assessment of the deponent and its result as, in effect, unduly harsh.

The warrant was upheld at that level. [ 78 ] In R. v. Pilarinos , [2001] B.C.J. No. 2924 , Bennett J., as she then was, considered the extent to which the Crown could examine the police affiant. [ 79 ] In R. v. Pilarinos , [2001] B.C.J.

No. 2924 , Bennett J., as she then was, considered the extent to which the Crown could examine the police affiant (an RCMP corporal) of an affidavit sworn in a case wherein the sufficiency of an authorization to permit interception of private communications was in issue. [ 80 ] Crown had earlier acceded to defence counsel's request to cross-examine the police affiant of the ITO, and Bennett J. had, in earlier reasons, set out permissible and non-permissible areas where this might be done.

These areas were later enlarged and further defence cross-examination was permitted by her on the basis "that it was relevant to the issues the defence intended to raise in its challenge to the authorization": see paragraph 4. [ 81 ] On conclusion of the defence cross-examination, Crown wished to question the affiant.

She held that, notwithstanding Crown having called the corporal and having led very little direct evidence from him, that he was to be considered as having been called by the defence, which is the ordinary course, and that Crown could cross-examine him and was not limited to leading reply evidence only. Defence argued that this cross-examination could only be directed to correct minor technical errors, citing Araujo , supra , at paragraph 59 . [ 82 ] Bennett J. thus discussed at some length what was meant by the concept of amplification at paragraph 18 and the following in her reasons, citing R. v.

Morris , supra , with some limited approval, noting, however, that Cromwell J.A.'s conceptualization dealing with two types of evidence, that to be excised and that in amplification or new evidence showing the true situation, had not been accepted by the Supreme Court of Canada in Araujo where this distinction is not made. [ 83 ] She rejected defence's above submission and said this in paragraphs 27 and 29, after quoting fully what LeBel J. had to say in Araujo on the extent of permissible amplification in Araujo : [27] The defence submits that this paragraph limits the extent to which amplification may be considered.

The defence submits that only minor technical errors in drafting made in good faith may be amplified. I do not draw this conclusion. It appears to me that LeBel, J. is identifying a spectrum. It would be wrong to permit a defective authorization to be totally rehabilitated by amplification during the review process. As the learned justice said, this would make a sham out of the authorization process.

On the other hand, when one considers cases such as Plant and Morris , the concerns on the affidavit that were found to be properly amplified went beyond minor technical errors in drafting. . . . [29] It is clear, however, that limits have been placed on the use of amplification in that it cannot circumvent the requirement for an authorization. It cannot circumvent the requirement for reasonable and probable grounds. The Crown cannot repair faulty authorization through amplification. The faulty evidence must be excised, and if errors were deliberate or not in good faith, amplification will not

serve to assist the Crown. [ 84 ] She then held as to permissible limits on Crown's cross-examination of the police affiant as follows in paragraphs 30, 31, 35, and 41 of her reasons: [30] I conclude that the Crown is permitted to cross-examine Corporal Taylor in order to put before the court all of the evidence necessary for me to determine if there were misleading statements, material non-disclosure, misrepresentation, whether the police should have known the informant was not reliable, whether the police did not properly follow other investigative techniques, and so on.

In short, any area the defence canvassed in its cross-examination, the Crown may also review, subject to the limitations I place below. The Crown may also elicit evidence on the issue of good faith, and whether there was a deliberate intention to mislead the authorizing judge. [31] I also conclude from Araujo and Morris that the fact the evidence is before me does not mean that I may automatically use it to amplify the record in order to sustain the authorization.

I may use the evidence to determine whether there is evidence that must be excised from [it] . . . . . . [35] The Crown is subject to some limits in its questioning of the officer. First, the Crown is obviously bound by the limits of relevance. In this case, because I permitted the accused to go far beyond the initial limits I set, the Crown may question the officer on points raised by the defence, assuming the questions are relevant to the issue I must decide, including the objections of the defence.

The Crown may not ask questions in areas where the defence was prohibited from pursuing. . . . [41] All of the evidence must be closely and carefully examined by me, taking into account the two fundamental principles of prior authorization and probable grounds.

Part of the process of review is to determine if there is fault with the affidavit, if there is erroneous material to be excised, and an error resulting in the misinformation was made in good faith and may amplify the record that was before the authorizing judge from the relevant evidence heard on the voir dire. [ 85 ] Very importantly, Bennett J. made it clear that the use of amplification evidence is to amplify the record that was before the authorizing judge, not the record that is before the reviewing judge, me: see paragraph 25. [ 86 ] I have included this case in these reasons.

It is a reasonably recent decision that deals with the use of amplification evidence on a voir dire and its limits, albeit once again from the standpoint of Crown cross-examining a person found to be, in essence, a defence witness. It is also helpful as it deals with the permissible scope of cross-examination, relating it to issues in play on a review: see paragraph 30. Pilarinos also does not deal with the issue I am considering. [ 87 ] R. v. Pires , 2005 SCC 66 , is one of the authorities Crown has included in its book of legal authorities.

It dealt with whether or not the trial judge's refusal to permit defence cross-examination of a police officer who swore an ITO in support of a wiretap application was correct where defence challenged the sufficiency of the affidavit. [ 88 ] Charron J. giving the judgment for the court noted the following applicable principles which, in my view, are relevant to what Mr. Cranston seeks to do here: 1) The right to cross-examine the affiant is neither absolute or unlimited.

Defence must show a reasonable likelihood that cross- examination will elicit testimony of probative value to the issue for consideration by the reviewing judge. The evidence must be relevant and material. There is no constitutional right (full answer and defence) to adduce irrelevant or immaterial evidence: see paragraph 3.

In my view, this principle applies with equal force to evidence the defence might seek to elicit from its own expert witness. 2) The accused's right to an evidentiary hearing must be balanced against countervailing interests, including the need to ensure that the criminal trial process is not plagued by lengthy proceedings that do not assist in the determination of relevant issues: see paragraph 24. 3) Proposed expert evidence must meet the criteria set out in R. v.

Mohan , supra : see paragraph 37 . 4) Cross-examination can properly be done where the defence alleges the affiant lacks credibility: see paragraph 43 and 68. [ 89 ] Thus, the credibility of the affiant can be an issue on the voir dire and is a point I think on which defence could lead evidence, but arguably subject to what Charron J. states in paragraph 41, which is similar to Cromwell J.A.'s statement in Morris at paragraph 90. I refer to both passages in the above order: 41 In some cases, the proposed cross-examination may be directed at the credibility or reliability of an informant.

However, cross- examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false . We must not lose sight of the fact that the wiretap authorization is an investigatory tool. At that stage, a reasonable belief in the existence of the requisite statutory grounds will suffice for the granting of an authorization. Upon further investigation, the grounds relied upon in support of the authorization may

prove to be false.

That fact does not retroactively invalidate what was an otherwise valid authorization. [My own emphasis added.] [ 90 ] Cromwell J.A., finally, in Morris at paragraph 90: 90 I conclude that in a s. 8 voir dire challenging a warrant issued pursuant to an Information to obtain which is valid and adequate on its face, evidence is admissible to explain non-deliberate errors or omissions on the review provided that the information was known to the police officers involved in obtaining the warrant at the time it was obtained and subject, of course, to the requirement that unconstitutionally obtained evidence cannot be considered.

Although it is not, strictly speaking, necessary for me to do so for the purposes of this case, I am inclined to accept the Crown's position that deliberately false and misleading material placed before the authorizing justice is not subject to amplification. [My own emphasis added.] [ 91 ] R. v. Pires is a particularly helpful decision in describing currently the precise nature of the hearing I am now conducting at paragraph 30, in part, and 31, as follows: 30 However, the Garofoli review hearing is not intended to test the merits of any of the Crown's allegations in respect of the offence.

The truth of the allegations asserted in the affidavit as they relate to the essential elements of the offence remain to be proved by the Crown on the trial proper.

Rather, the review is simply an evidentiary hearing to determine the admissibility of relevant evidence about the offence obtained pursuant to a presumptively valid court order. (I say "relevant" evidence because, if not relevant, its inadmissibility is easily determined without the need to review the authorization process.) As indicated earlier, the statutory preconditions for wiretap authorizations will vary depending on the language of the provision that governs their issuance.

The reviewing judge on a Garofoli hearing only inquires into whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed . . . Hence, there is a relatively narrow basis for exclusion. Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context.

In the end analysis, the admissibility of the wiretap evidence will not be impacted under s. 8 if there remains a sufficient basis for issuance of the authorization. 31 It is in this narrower context that the right to cross-examine, as an adjunct to the right to make full answer and defence, must be considered. There is no point in permitting cross-examination if there is no reasonable likelihood that it will impact on the question of the admissibility of the evidence.

The Garofoli threshold test is nothing more than a means of ensuring that, when a s. 8 challenge is initiated, the proceedings remain focussed and on track. Even on the trial proper, the right to cross-examine is not unlimited. In Lyttle , the Court reiterated the principle that counsel are "bound by the rules of relevancy and barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their probative value" (para. 44 (emphasis added)). The Garofoli threshold test is all about relevancy.

If the proposed cross-examination is not relevant to a material issue, within the narrow scope of the review on admissibility, there is no reason to permit it. [ 92 ] Finally, I note various cases state the onus is on the accused to show errors or the existence of misleading information in the ITO, and that the warrant was improperly issued or invalid as a result: see , for example, R. v. Wilson , supra , paragraph 63 ; R. v Sadikov , 2015 ONSC 3112 at paragraph 12 ; and R. v. Lao , [2013] O.J. No. 1995 , paragraph 58 .

Discussion and conclusion [ 93 ] With these legal principles very much in mind, I turn now to three issues: 1) Is Mr. van Leeuwen an appropriate expert at all? 2) Should Mr. van Leeuwen be permitted to give expert evidence at a reopened voir dire and on what basis should he be qualified? 3) If he is permitted to give expert evidence, what evidence? On everything that Mr.

Cranston wants to deal with or should it be limited by me as, for example, occurred in Pilarinos , above, where Bennett J., as she then was, apparently attempted to set limits? [ 94 ] I will deal with these three issues in turn. [ 95 ] The first issue: Crown admits the obvious, that Mr. van Leeuwen knows more about electricity than Constable Harker.

I am satisfied that he is a person who is qualified to give expert evidence to the court as in Monroe , supra , on the matter of consumption of electricity at the residence. [ 96 ] The second issue: I also find that Mr. van Leeuwen should be permitted to give proper evidence on the voir dire with respect to:

a) consumption of electricity at the residence;

b) the manner in which electricity is transmitted by BC Hydro, I assume the supplier in issue, to the residence, however, at thematerial time, including with respect to the hardware used on August 6, 2013, as distinct from some later period of time;

c) the operation and use of forward-looking infrared or FLIR technology in 2013;

d) his knowledge of the manner in which BC Hydro calculated average household or average residence use or consumption ofelectricity in the year 2013. [97] I am not satisfied that Mr. Cranston has shown on the voir dire that Mr. van Leeuwen has any expertise at all in interpretinghydro bills or any of the entries on or documents attached to Mr. MacDonald's August 1, 2013 affidavit. I will return to this point below. [98] As a general rule, experts are not permitted to offer opinions in court outside their area of expertise. [99] Issue three: I will permit Mr. van Leeuwen to testify in the above matters (a)-(d).

Only those parts of his report that arerelevant to these issues will be ultimately included in the evidence of the voir dire. Notwithstanding the fact that his report was earliermarked, without exceptions, as Exhibit "J" on the voir dire, it was clear that by two o'clock p.m. on the last day of this voir dire, thateven Mr. Cranston took the view that certain comments or opinions set out therein were not proper and then helpfully provided the courtwith a copy with X's against certain portions he agreed he was not relying on. A copy of this document will now be marked as Exhibit"J(1)" on the voir dire.

In so doing, I do not find that everything therein is now evidence before the court on this voir dire. [100] During argument before me, Mr. Hartney for the Crown took objection to Mr. van Leeuwen giving evidence as to what BCHydro may have told him about several entries on the documents appended to Mr. MacDonald's affidavit as referred to at page 12,"Reply to Question 6", in his undated report on the basis that it was speculative on Mr. van Leeuwen's part. A suspicion, in my view, isnot an opinion.

Experts provide proper opinions to courts, not speculation as to what entries on records they did not prepare mightmean. [101] I note that Mr. van Leeuwen did not set out in his report on point what, if anything, Mr. MacDonald might have told him.

Thus,without more, I am of the view that Question 6 and Mr. van Leeuwen's answer is not admissible evidence. [102] I make this finding, notwithstanding my acceptance that the law does permit experts who testify in court to give admissibleevidence and to base their opinions on hearsay evidence, but in so doing there is not generally an automatic acceptance of the truth of thehearsay matters: see, for example, R. v. Lavallee, (SCC), [1990] 1 S.C.R. 852 at 893, very usefully discussed in thewell-known CLE publication, Expert Evidence in B.C. Civil Proceedings, 2000,

Chapter 5. [103] I do not now intend to deal with the admissibility of other portions of Mr. van Leeuwen's report.

I believe the safer coursewould be to allow him to testify, as I have directed, and once I have all his evidence within the permissible limits set out above, I willthen be in a far better position to assess whether all portions of his report, now marked Exhibit "J(1)," other than Question 6, and hisreply are admissible and, very importantly, as with any witness, expert or otherwise, what weight, if any, should be attributed to hisevidence. [104] Finally, on the third issue, in my view, the evidence to be led from Mr. van Leeuwen must be relevant to issues before me,including issues defence intends to raise as to the sufficiency of the ITO, which issues would seemingly include, based on the above legalauthorities, the following:

a) credibility of Constable Harker;

b) fraud, non-disclosure, misleading evidence, or misrepresentation in the ITO;

c) errors or mistakes in the ITO;

d) whether Constable Harker should have known certain facts and included them in his ITO (see, for example, paragraph 30,Pilarinos) when he swore it; and

e) whether the police did not properly follow other appropriate investigative techniques. [105] These are my reasons on the point in issue. (REASONS CONCLUDED)