Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The two Appellants, Francisco Batista Pires and Ronaldo Lising, were charged in June 1998 in a seven-count indictment on drug related offences. They were jointly charged on counts 1 to 5. The Appellant Lising alone was charged under counts 6 and 7 with possessing cocaine and the drug known as Ecstasy for the purposes of trafficking.

In April 1996, the key Crown witness at trial, Mr. Molsberry, began working as an informant for the police in connection with a drug distribution ring. For the period November 1995 to April 1996, the only evidence against the Appellants was that of Mr. Molsberry and they were acquitted on the charges referable to that period. After April 1996, the informant’s evidence was supplemented by police surveillance, wiretap evidence and drug seizures.

The affidavit required under s. 184.2 of the Criminal Code for the wiretap authorization was sworn by Detective Richards of the Vancouver Police Department. Detective Richards deposed that he had searched Mr. Molsberry’s criminal record. In paragraph 11, he stated that Sgt. Fraser had informed him that as a result of a polygraph examination Sgt. Fraser believed, as he did, that to date Mr. Molsberry had been completely truthful in his dealings with the police in this investigation. The authorizing judge granted the authorization on August 6, 1996 for a period not exceeding 60 days.

At trial, defence counsel challenged the constitutionality of s. 184.2 and the wiretap authorization granted pursuant to it. The trial judge upheld the validity of the provision. Counsel for Lising sought to cross-examine both Detective Richards and Mr. Molsberry, while counsel for Pires sought to cross-examine only Detective Richards. On the issue of the sufficiency of the affidavit, the trial judge was not satisfied that cross-examination would elicit evidence relevant to the issue. He declined to permit Mr. Molsberry to be cross-examined in aid of the application for leave to cross-examine Detective Richards and on the issue of the validity of the authorization generally. Defence had argued that paragraph 11 of the affidavit was misleading in that Mr. Molsberry had been tested by polygraph only to determine whether he was a double agent and not to determine his truthfulness generally. The trial judge set aside paragraph 11, proceeded to review the balance of the affidavit and dismissed the Appellants’ application to cross-examine Detective Richards. Both Appellants were convicted on counts 1, 4 and 5. Mr. Lising was acquitted on counts 6 and 7, but convicted of the included offence of simple possession of cocaine and Ecstasy. On appeal, the Court of Appeal dismissed the appeals.