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R. v. Araujo, [2000] 2 S.C.R. 992

 

Angela Araujo, Spencer Leslie,                                                        Appellants

Neil Grandmaison, Christina Khoury, Victor Camara,

Robert Jenkins, Tiffany Muriel Leslie,

Kevin Lathangue and Jolene Irons

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

Indexed as:  R. v. Araujo

 

Neutral citation:  2000 SCC 65.

 

File Nos.:   26898, 26899, 26904, 26943, 26968.

 

2000:  April 11, 12; 2000: December 14.

 

Present:  McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

 

on appeal from the court of appeal for british columbia

 

Criminal law ‑‑ Appeals ‑‑ Question of law ‑‑ Crown’s appeal against acquittals ‑‑ Issues on appeal concerning application and interpretation of legal standard of investigative necessity for obtaining wiretap authorization ‑‑ Whether Court of Appeal had jurisdiction to hear Crown’s appeal ‑‑ Criminal Code, R.S.C., 1985, c. C‑46 , s. 676(1) (a).

 


Criminal law ‑‑ Interception of communications ‑‑ Investigative necessity requirement ‑‑ Nature and interpretation of requirement ‑‑ Whether affidavit materials submitted to obtain wiretap authorization established investigative necessity ‑‑ Criminal Code, R.S.C., 1985, c. C‑46 , s. 186(1) (b).

 

Criminal  law ‑‑ Interception of communications ‑‑ Standard of review for wiretap authorization ‑‑ Whether trial judge applied proper standard ‑‑  Approach to amplification.

 

Criminal law ‑‑ Interception of communications ‑‑ Affidavits ‑‑ Kind of affidavit to be submitted on application for wiretap authorization.

 


The accused faced multiple charges related to their cocaine‑trafficking ring.  Much of the Crown’s evidence against them was gleaned from information captured through wiretapping.  The Crown had obtained ex parte authorizations for its wiretaps from a judge by submitting a 130‑page affidavit, prepared and signed by R, a member of the RCMP.  The affidavit contained information from 10 confidential sources denoted “A” through “J”.  Information from these sources came to R by way of other officers who were their handlers.  On a voir dire at trial, R was cross‑examined on the affidavit.  After confused attempts at explaining inconsistencies in the affidavit, R admitted that in several places the affidavit referred erroneously to source “E”, rather than to source “F”.  He later testified that the reference should have been to source “C”.  R admitted that he had known about this error several weeks before the trial.  He affirmed that he had forgotten about the matter, but suddenly remembered it during the cross‑examination.  The trial judge indicated that R’s lack of credibility “permeate[d] the issue of reasonable and probable grounds”, one of the preconditions to the authorization, and concluded that the affidavit should fall in its entirety.  The Court of Appeal set aside the acquittals of the accused and ordered a new trial.

 

Held:  The appeal should be dismissed.

 

The Court of Appeal had jurisdiction under s. 676(1) (a) of the Criminal Code  to hear the Crown’s appeal.  The Court of Appeal examined the combined interpretation and application of the legal standard of investigative necessity.  It also discussed the interpretation and application of the standard of review for a judge reviewing a wiretap authorization.  The interpretation or application of a legal standard has been recognized as a question of law.

 


Under s. 186(1)(b) of the Code, wiretapping may be accepted as an appropriate investigative tool  where  “other investigative procedures are unlikely to succeed”.  The correct interpretation of s. 186(1) (b)’s investigative necessity requirement must be based on the text of the provision read with a simultaneous awareness of two potentially competing considerations: enabling criminal investigations and protecting privacy rights.  Wiretapping is highly intrusive and a judge should protect citizens against unwanted fishing expeditions by the state and its law enforcement agencies by granting an authorization only as far as need is demonstrated by the material submitted by the applicant.  In order to meet the investigative necessity requirement, the applicant must establish in the affidavit that,  practically speaking, there is no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry.  Here, the Court of Appeal applied a standard inconsistent with the words of the Criminal Code .  In concluding that “in the case at bar, there is no reason to impeach the choice of investigative techniques”, the court applied an “efficiency” rather than a “necessity” standard.   This approach is wrong in law and has the potential to subvert the safeguards of privacy interests that are an essential component of the regulation of wiretapping in the Code.  Using the efficiency standard, wiretapping would always be available to the police and would replace a standard of necessity with one of opportunity at the discretion of law enforcement bodies.  However, the application of the proper test supports the conclusion reached by the Court of Appeal that the authorizing judge could properly have issued an authorization based on the facts disclosed in the affidavit.  The facts as set out in the affidavit met the investigative necessity standard.  The affidavit attested to the failure of police efforts in spite of the use of physical surveillance and search warrants.  It also provided evidence as to why the use of informants or undercover agents trying to infiltrate the drug ring would be ineffective and potentially dangerous.  There was thus evidence in the affidavit to negate arguments for other investigative techniques and to make the case that wiretapping was, practically speaking, the only reasonable alternative, taking into account the nature and purpose of this particular investigation.  The objective of a police investigation ‑‑ to bring the higher‑ups in a drug ring to justice ‑‑ rightly informs the investigative necessity analysis.  The police had more need for wiretapping given that they were trying to move up the chain and catch the higher‑ups in the operation.

 

As a practical matter, in seeking permission to use wiretapping, the police should submit an affidavit that sets out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization.  In addition, an affidavit should be clear and concise.  It should never attempt to trick its readers.  On this point, the use of boiler‑plate language should be avoided. Finally, the affidavits should be gathered from those with the best firsthand knowledge of the facts.  This would strengthen the material by making it more reliable.


The trial judge did not correctly apply the standard of review for a wiretap authorization.  A reviewing judge does not conduct a rehearing of the application for the wiretap.  The test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued.  In considering the evidence, the reviewing judge must exclude erroneous information.  Amplification may correct such information where the police had the requisite reasonable and probable grounds and demonstrated investigative necessity but, in good faith, made some minor, technical error in the drafting of their affidavit material.  There is no need to seek to amplify the record if sufficient reliable material remains even after excising the erroneous material.  In this case, although the trial judge found R to lack credibility on the issue of why he had not disclosed a minor drafting mistake, there is no suggestion that there was ever any untruthfulness in the substance of the information in the affidavit itself.  In these circumstances, a global finding against the entire affidavit was unreasonable.   Even without the information from sources “C” and “E”, the affidavit would have provided ample evidence to an issuing judge and evidenced the existence of probable grounds and investigative necessity.  Moreover, amplification would allow for the reading of the information from the now correctly attributed sources “C” and “E” as well.  The Court of Appeal was correct in upholding the issuing judge’s authorization.

 

Cases Cited

 


Followed:  R. v. Garofoli, [1990] 2 S.C.R. 1421; R. v. Bisson, [1994] 3 S.C.R. 1097, aff’g [1994] R.J.Q. 308, 87 C.C.C. (3d) 440; R. v. Grant, [1993] 3 S.C.R. 223; approved:  R. v. Hiscock, [1992] R.J.Q. 895, 72 C.C.C. (3d) 303, leave to appeal refused, [1993] 1 S.C.R. vi; R. v. Monroe (1997), 8 C.R. (5th) 324; R. v. Morris (1998), 134 C.C.C. (3d) 539; disapproved:  R. v. Paulson (1995), 97 C.C.C. (3d) 344; R. v. Cheung (1997), 119 C.C.C. (3d) 507; referred to:  R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Commisso, [1983] 2 S.C.R. 121; R. v. Thompson, [1990] 2 S.C.R. 1111; R. v. Lachance, [1990] 2 S.C.R. 1490; R. v. Finlay (1985), 23 C.C.C. (3d) 48; R. v. Playford (1987), 40 C.C.C. (3d) 142; R. v. Smyk  (1993), 86 C.C.C. (3d) 63; R. v. Barbeau (1996), 110 C.C.C. (3d) 69; R. v. Grant (1998), 130 C.C.C. (3d) 53; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743; R. v. Madsen, [1988] N.W.T.R. 82; R. v. Todoruk (1992), 78 C.C.C. (3d) 139; R. v. McCreery, [1996] B.C.J. No. 2405 (QL); R. v. Shalala (2000), 224 N.B.R. (2d) 118; Berger v. New York, 388 U.S. 41 (1967); Katz v. U.S., 389 U.S. 347 (1967); U.S. v. London, 66 F.3d 1227 (1995); U.S. v. Torres, 901 F.2d 205 (1990); U.S. v. Commito, 918 F.2d 95 (1990); U.S. v. Guerra‑Marez, 928 F.2d 665 (1991); U.S. v. Milton, 153 F.3d 891 (1998); U.S. v. Smith, 31 F.3d 1294 (1994); U.S. v. Green, 40 F.3d 1167 (1994); Dalglish v. Jarvie (1850), 2 Mac. & G. 231, 42 E.R. 89; R. v. Kensington Income Tax Commissioners, [1917] 1 K.B. 486; Re Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449; United States of America v. Friedland, [1996] O.J. No. 4399 (QL); Mitton v. British Columbia Securities Commission (1999), 123 B.C.A.C. 263; R. v. Allain (1998), 205 N.B.R. (2d) 201; R. v. Krist (1998), 113 B.C.A.C. 176; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Madrid (1994), 48 B.C.A.C. 271; R. v. Harris (1987), 35 C.C.C. (3d) 1, leave to appeal refused, [1987] 2 S.C.R. vii.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms , s. 8 .

 

Criminal Code, R.S.C., 1985, c. C‑46 , ss. 186  [am. 1993, c. 40, s. 6 ], 676(1)(a) [am. c. 27 (1st Supp.), s. 139 ].

 


Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510‑2522 (1994 & Supp. IV 1998).

 

Authors Cited

 

Driedger, Elmer A.  Construction of Statutes, 2nd ed.  Toronto: Butterworths, 1983.

 

APPEAL from a judgment of the British Columbia Court of Appeal (1998), 109 B.C.A.C. 131, 127 C.C.C. (3d) 315, [1998] B.C.J. No. 1558 (QL), allowing the Crown’s appeal from the acquittal of the accused on various charges, and ordering a new trial.  Appeal dismissed.

 

Adrian F. Brooks, for the appellant Araujo.

 

David N. Lyon, for the appellant S. Leslie.

 

Michael Code and Jonathan Dawe, for the appellant Grandmaison.

 

Robert C. Claus, for the appellant Khoury.

 

Michael J. B. Munro, for the appellant Camara.

 

Sidney B. Simons, for the appellants Jenkins, T. M. Leslie and Irons.

 

D. Mayland McKimm, for the appellant Lathangue.

 

S. David Frankel, Q.C., and Peter W. Hogg, for the respondent.

 


The judgment of the Court was delivered by

 

LeBel J. –

 

I.       Introduction

 

1                                   This appeal involves the electronic interception of private communications, popularly known as “wiretapping”.  Under what circumstances can the police satisfy the investigative necessity requirement in s. 186(1)  of the Criminal Code, R.S.C., 1985, c. C-46 , and obtain an authorization to intercept private communications by electronic means?  On what basis can a trial judge review the decision to issue such an authorization?  These questions at the heart of this appeal have given rise to controversy and varying appellate court approaches since our Court last considered them.  The reasons that follow will outline what I consider to be the proper approach to these issues.

 

2                                   It should be noted that these reasons will not discuss the new s. 186(1.1) and related amendments adopted in 1997 which target criminal organizations.  These amendments were not invoked or examined in the case at bar.   The interpretation of the investigative necessity requirement in s. 186(1)  and the issue of the standard of review on a wiretap authorization are significant enough issues, which will affect many people.

 


3                                   The answers of our Court to these questions may have a substantial impact on the privacy rights of a number of Canadians.  Although we suggest dismissing the appeal on the facts before our Court and affirm the Court of Appeal’s decision to order a new trial, the language used in the Court of Appeal’s reasons could lead courts to permit undue infringements on privacy in other factual circumstances. These reasons must then discuss the nature and interpretation of the investigative necessity requirement before turning to an examination of the function of the reviewing judge at trial.  These reasons will also offer some suggestions as to how the police and other participants in the justice system can avoid some of the problems of the sort that have given rise to this appeal.    

 

II.       Factual Background

 

4                                   The appellants faced multiple trafficking, possession, conspiracy, and weapons charges related to their cocaine-trafficking ring.  Much of the Crown’s evidence against the appellants was gleaned, directly or indirectly, from information captured through a wiretap.  As is usual, the Crown had obtained ex parte authorizations for its wiretaps by submitting affidavit material to an authorizing judge.  The main material in support of the application was a long affidavit of some 130 pages, prepared and signed by a member of the RCMP, Constable Rosset.  This affidavit was largely based on information gathered by Rosset from the handlers of ten police informers.  No affidavits were obtained from these handlers. 

 


5                                   According to the affidavit material, a number of sources had identified the appellants as running a drug-trafficking operation in Victoria with possible connections to a major, violent cocaine-trafficking gang operating in Vancouver and the Lower Mainland.  The appellants, who were the primary targets of the potential wiretap, allegedly trafficked cocaine in quantities up to the kilogram range.  The police had conducted previous investigations and executed warrants against some of the appellants.  They had also conducted a substantial surveillance operation on the appellants.  There was evidence that some of the appellants were engaging at times in counter-surveillance tactics to throw investigators off their tails.  There was also reason to believe that standard investigative procedures on their own would not be likely to catch the higher-ups in the drug operation.  In seeking an authorization for wiretapping, the police hoped to use wiretaps in conjunction with other investigative techniques in order to pursue the higher-ups in the trafficking ring and to be able to gather evidence on not only trafficking and possession charges but also on laundering and conspiracy offences.

 

6                                   At trial, when the Crown brought forth its authorizations under Part VI of the Criminal Code  for gathering wiretap evidence, counsel for the accused cross-examined Constable Rosset in the voir dire, challenging the validity of the wiretap. During cross-examination by defence counsel, it emerged then that there were some serious problems with the affidavit submitted to obtain the first authorization.  It became clear that the affidavit contained a number of errors of varying importance.  In  a number of places, boiler-plate language used in the affidavit might have created a mistaken impression that certain statements had been confirmed in ways that they had not.  However, the most important problem with the affidavit concerned references to some of the sources. 

 


7                                   The affidavit contained information from ten confidential sources denoted “A” through “J”.  Information from these sources came to Constable Rosset by way of other officers who were their handlers.  There had been no direct contact between Rosset and the informers.  In the second day of cross-examination, after repeated denials and confused attempts at explaining inconsistencies in the affidavit and in his own evidence, Constable Rosset had to admit that in several places the affidavit referred erroneously to source “E”, rather than to source “F”.   Later, during the same cross-examination, Constable Rosset testified that the reference should have been to source “C”.  Rosset admitted then that he had known about this error several weeks before the trial, but had not mentioned it either to his superiors or to the Crown prosecutor.  In his testimony, he affirmed that he had forgotten about the matter, but suddenly remembered it during the cross-examination.  The trial judge, Filmer Prov. Ct. J., did not believe him.  This finding of fact on the credibility of Constable Rosset during the voir dire had a catastrophic impact on the Crown’s case and played a major role in the dismissal of the charges against the appellants.

 

III.      Judicial History

 

A.  British Columbia Provincial Court

 

8                                   In his factual findings at the voir dire, the trial judge found that the mistake of Constable Rosset had been inadvertent but that his failure to reveal it earlier had cast a “pall over Officer Rosset’s credibility”.   Filmer Prov. Ct. J. would then go on to extend his finding on Constable Rosset’s credibility to the entire affidavit, although he accepted that the police officer had become aware of the error only well after the submission of the affidavit.  He stated, “[c]ross-examination of the deponent here has led to testimony which tends to discredit the existence of one of the preconditions to the authorization: to wit, the existence of reasonable and probable grounds”.  Filmer Prov. Ct. J. considered that Constable Rosset’s credibility “permeates the issue of reasonable and probable grounds” and thus concluded that the affidavit should fall in its entirety.  In his opinion, the testimony of Constable Rosset tainted the whole affidavit and rendered it unreliable.

 


9                                   Although he considered this sufficient reason to invalidate the authorization, Filmer Prov. Ct. J. also discussed two other arguments.  First, he criticized the boiler-plate language in the affidavit, calling it potentially confusing but not characterizing it as so confusing as to call for rejecting the authorization if it had been the sole problem.  Second, he considered that the authorization had not been necessary because the investigative necessity had not been made out, especially given the possibility that the police might have conducted specifically directed surveillance with a special investigative team of the RCMP, the Special Operations Group.  Thus, he decided that the authorization should be rejected.

 

10                               In the end, because he was of the opinion that the police had acted in bad faith and because the courts cannot condone such conduct, Filmer Prov. Ct. J. was prepared to exclude all evidence coming directly or indirectly from the wiretaps.  As a result, there was no evidence against the accused, and Filmer Prov. Ct. J. acquitted the accused.

 

B.  British Columbia Court of Appeal (1998), 127 C.C.C. (3d) 315

 

11                               The Court of Appeal unanimously set aside the acquittals and ordered a new trial.  In a judgment by Braidwood J.A., it rejected Filmer Prov. Ct. J.’s application of the standard of review to the wiretap authorization and of the investigative necessity test.

 


12                               According to Braidwood J.A., the trial judge had erred in applying an inappropriate standard of review to the authorization.  In his opinion, the trial judge had failed to consider the nature of the errors, their impact on the affidavit as a whole and whether there remained any further evidence left on the basis of which the authorization could have been granted.  As Braidwood J.A. viewed it, the correct standard of review was “whether, on the evidence, there was any basis on which the authorization could have been granted . . .” (para. 10 (emphasis in original)).  In the circumstances, the error in denoting the sources was easily remedied by reading the correct letters on review (para. 22).  An inadvertent mechanical error, even in combination with a non-credible explanation of why the error was not corrected, did not take away from the existence of reasonable and probable grounds that existed at the time the police sought the authorization and that continued to exist at the time of the review (para. 23).

 

13                               Braidwood J.A. went on to reject the trial judge’s conclusion that the affidavit had not satisfied the requirements of investigative necessity.  Based on previous case law from the British Columbia Court of Appeal, Braidwood J.A. considered that “the key issue was whether or not the authorizing judge could have concluded that the most efficacious way of fully investigating all those involved was to permit the police to employ wiretapping along with other investigative techniques” (para. 30 (italics in original; underlining added)).  On this standard, there was “no reason to impeach the choice of investigative techniques given the nature and background of the numerous investigations, the prior experience with a number of the accused, the counter-surveillance employed by some of the accused, and the extent of the investigations in terms of time and resources” (para. 33).  He held that the trial judge had erred in applying the correct legal test,  that the authorization could have been granted and that it should not have been disturbed.

 

14                               Braidwood J.A. thus was of the view that the trial judge had erred in law by not applying the appropriate test to the facts on the voir dire and that the Court of Appeal should allow the appeal, set aside the acquittals, and order a new trial.

 

IV.      Relevant Statutory Provisions

 

15                               Criminal Code, R.S.C., 1985, c. C-46 


 

186. (1) An authorization under this section may be given if the judge to whom the application is made is satisfied

 

(a) that it would be in the best interests of the administration of justice to do so; and

 

(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

 

V.       Issues

 

16                               There are several issues on this appeal, which will be considered successively.  First, there is one preliminary issue: (A) whether there was a jurisdictional bar to the Crown’s appeal to the Court of Appeal.  Second, there are two main issues: (B) whether the factual circumstances revealed in the affidavit met the s. 186(1)  requirement of investigative necessity; and (C) whether the trial judge applied correctly the standard of review for a wiretap authorization, including the correct approach on amplification.

 

VI.       Analysis

 

A.  Was There a Jurisdictional Bar to the Crown’s Appeal to the Court of Appeal?

 

17                               Before considering the central issues in this appeal, a  preliminary argument must be addressed.  The appellants have argued that the Crown’s appeal to the British Columbia Court of Appeal did not raise a question of law and that, therefore, the Court of Appeal did not have jurisdiction under s. 676(1)(a) of the Code to hear the appeal.                 


18                               It is clear that this argument must fail.  The interpretation of a legal standard has always been recognized as a question of law: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 21.  Moreover, our Court has recently recognized that if a question is about the application of a legal standard, that is enough to make it a question of law: R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15, at para. 23.  In the case before us, the Court of Appeal examined the combined interpretation and application of the legal standard of investigative necessity.  It also discussed the interpretation and application of the standard of review for a judge reviewing a wiretap authorization.  There is no question that the Court of Appeal was dealing with questions of law.  Thus, there was no jurisdictional bar to the Crown’s appeal.   

 

 

B.  Did the Factual Circumstances Revealed in the Affidavit Meet the Section 186(1)         Requirement of Investigative Necessity?

 

 

19                               The first major issue in the case at bar is whether the factual circumstances revealed in the affidavit even met the s. 186(1)  requirement of investigative necessity.  This is a facial validity question.  On the face of the affidavit material, could the contents of the affidavit support an authorization?  In order to answer this question, the meaning of the investigative necessity requirement must be explored in order to determine whether the factual circumstances revealed in the affidavit met this standard.

 


20                               As will appear below, this case does not raise a question of interpretation of s. 186(1) (a), which requires that the issue of an authorization be in the interest of the administration of justice.  Courts have found that this requirement meant that in accordance with s. 8  of the Canadian Charter of Rights and Freedoms  there had to be reasonable and probable grounds on which to believe that an offence had been committed (Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Garofoli, [1990] 2 S.C.R. 1421; and R. v. Duarte, [1990] 1 S.C.R. 30).  It is not in dispute that this first basic requirement was satisfied when the wiretap authorization was issued.  On the other hand, the investigative necessity standard remains at the heart of the present appeal.

 

1.  The Meaning of the Investigative Necessity Requirement

 

21                               The meaning of the investigative necessity requirement is of critical importance by reason of the conflict between the privacy interests involved in wiretapping operations and the needs of law enforcement agencies in their difficult fight against some forms of sophisticated and dangerous criminality.  Wiretapping is highly intrusive.  It may affect human relations in the sphere of very close, if not intimate communications, even in the privacy of the home.  La Forest J. was alert to the importance of the societal values involved in wiretapping and the risks to essential privacy interests.  Writing for the Court, in Duarte, supra, at p. 44, La Forest J. emphasized the potential danger to privacy rights arising from the use of such modern investigative techniques:

 


The reason for this protection is the realization that if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance.  The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private.  A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning.  As Douglas J., dissenting in United States v. White, supra, put it, at p. 756:  “Electronic surveillance is the greatest leveler of human privacy ever known”.  If the state may arbitrarily record and transmit our private communications, it is no longer possible to strike an appropriate balance between the right of the individual to be left alone and the right of the state to intrude on privacy in the furtherance of its goals, notably the need to investigate and combat crime. 

 

22                               An appropriate balance must be found between the need to safeguard privacy interests and the realities and difficulties of law enforcement.  The investigative necessity requirement found in s. 186(1) (b) has proved to be a critical but delicate component of the legal framework set up to regulate wiretapping in order to strike this appropriate but often elusive balance between the  interests of the State and those of its citizens.

 

23                               This Court has not issued a definitive statement on the meaning of the investigative necessity requirement in s. 186(1) .  The closest that it has come is in La Forest J.’s reasons in Duarte, supra.  In considering a problem of surveillance conducted with the consent of one party, La Forest J. referred in passing, at p. 55, to the investigative necessity requirement for wiretapping:

 

. . . authorizations for electronic surveillance are only to be given on a showing that there is no real practical alternative (s. 178.13(1)); in other words, as put by the Ontario Court of Appeal in R. v. Playford (1987), 40 C.C.C. (3d) 142, at p. 185: “. . . it is treated as a last resort investigative mechanism”, and can only be obtained for investigation of the most serious offences in the Code (s. 178.1);

 

 

However, this obiter comment did not distinguish between a “last resort” test and a “no real practical alternative” test. 

 


24                               Our Court has remained divided between these two descriptions of the test: see R. v. Commisso, [1983] 2 S.C.R. 121 (in which the dissent of Dickson J. (as he then was) used a “last resort” standard at p. 135); R. v. Thompson, [1990] 2 S.C.R. 1111 (in which La Forest J.’s dissent referred to a “last resort” standard at p. 1160); and R. v. Lachance, [1990] 2 S.C.R. 1490 (in which an obiter reference at p. 1502 of Sopinka J.’s judgment implied that the standard was “the only practical investigative technique available”).  Thus, our Court has left open the question of the exact nature of the test of investigative necessity.

 

25                               Over the years, other Canadian courts seem not to have been entirely sure which strand of this case law they should use.  Sometimes, they have approved of words such as “last resort” to describe the degree of necessity required to meet the standard: e.g., R. v. Finlay (1985), 23 C.C.C. (3d) 48 (Ont. C.A.), at p. 69; R. v. Playford (1987), 40 C.C.C. (3d) 142 (Ont. C.A.), at p. 185; and R. v. Smyk  (1993), 86 C.C.C. (3d) 63 (Man. C.A.), at p. 81, per Twaddle J.A.  Other times, they have talked more about reasonable practical alternatives or similar practical tests: e.g., Smyk, supra, at p. 73, per Philp J.A.; R. v. Barbeau (1996), 110 C.C.C. (3d) 69 (Que. C.A.); R. v. Grant (1998), 130 C.C.C. (3d) 53 (Man. C.A.).

 


26                               The correct interpretation of s. 186(1) ’s investigative necessity requirement must be based on the text of the provision read with a simultaneous awareness of two potentially competing considerations.  First, as stated by E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, as affirmed by our Court (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21), and as accepted in the analogous context of interpreting the search warrant provisions of the Criminal Code  (CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, at para. 14), “Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”  In other words, we need to give the section a fair and liberal reading as part of our country’s criminal justice legislation.  Second, however, we must not forget that the text of s. 186(1)  represents a type of constitutional compromise.  In particular, the investigative necessity requirement embodied in s. 186(1)  is one of the safeguards that made it possible for this Court to uphold these parts of the Criminal Code  on constitutional grounds (Duarte, supra, at p. 45; Garofoli, supra, at p. 1444).  As a result, s. 186(1)  must be read with a simultaneous awareness of the competing values of enabling criminal investigations and protecting privacy rights.

 

27                               With a proper awareness of these values, I must turn to the text of s. 186(1) (b).  This provision states that wiretapping may be appropriate as where “other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures” (emphasis added).  With the use of the disjunctive “or”, the text of the section makes clear that there are three kinds of circumstances in which wiretapping may be accepted as an appropriate investigative tool (see, e.g., Smyk, supra, at pp. 70-71).  The third branch of the subsection seems to refer to an emergency situation, and the first branch refers to a true “last resort” situation where other investigative methods “have been tried and have failed”.  These branches not having been argued, it is the second branch, which speaks of the likelihood of success of other investigative procedures, that must be considered in the case before us. 

 


28                               The words of the second branch ought not to be read in a vacuum.  The disjunctive nature of the three branches does not remove the need to read the subsection together as a whole (see R. v. Madsen, [1988] N.W.T.R. 82 (S.C.), at p. 86).  Indeed, the nature of the other branches properly emphasizes the gravity of wiretapping and suggests that we should not read the term “unlikely” in the second branch in a weak way.  But, ultimately, it is sufficient to satisfy one branch of s. 186(1) (b).  Also, the words ought properly to be read in their context in light of the values that were acknowledged at the outset and how any particular investigation meshes with these values.

 


29                               In the final analysis, the potentially competing values in this area must be acknowledged.  The words of the Code must be read with some common sense having regard both to the nature and purpose of the particular investigation which the police  wish to undertake.  A pure last resort test would turn the process of authorization into a formalistic exercise that would take no account of the difficulties of police investigations targeting sophisticated crime.  But the authorizing judge must look with attention at the affidavit material, with an awareness that constitutional rights are at stake and carefully consider whether the police have met the standard.  All this must be performed within a procedural framework where certain actions are authorized on an ex parte basis.   Thus, the authorizing judge stands as the guardian of the law and of the constitutional principles protecting privacy interests.  The judge should not view himself or herself as a mere rubber stamp, but should take a close look at the material submitted by the applicant.  He or she should not be reluctant to ask questions from the applicant, to discuss or to require more information or to narrow down the authorization requested if it seems  too wide or too vague.  The authorizing judge should grant the authorization only as far as need is demonstrated by the material submitted by the applicant.  The judge should remember that the citizens of his country must be protected against unwanted fishing expeditions by the state and its law enforcement agencies.  Parliament and the courts have indeed recognized that the interception of private communications is a serious matter, to be considered only for the investigation of serious offences, in the presence of probable grounds, and with a serious testing of the need for electronic interception in the context of the particular investigation and its objects (cf. Smyk, supra, at p. 74).  There must be, practically speaking, no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry.

 

30                               This approach is consistent with much of the Canadian  jurisprudence analyzing the investigative necessity requirement: e.g., R. v. Todoruk (1992), 78 C.C.C. (3d) 139 (B.C.S.C.), at p. 145; Smyk, supra, at p. 74; R. v. McCreery, [1996] B.C.J. No. 2405 (QL) (S.C.), at paras. 47-53; Barbeau, supra, at pp. 84-85; R. v. Shalala (2000), 224 N.B.R. (2d) 118 (C.A.), at para. 87.

 

31                                Moreover, although I am wary of applying our southern neighbour’s quite different Fourth Amendment jurisprudence in the Canadian context, I note that American courts have approached their almost identical legislation governing the use of wiretapping not on the basis of an absolutist “last resort” theory but in a similarly commonsensical fashion.

 

32                               Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522 (1994 & Supp. IV 1998), implements the standards for the use of electronic surveillance as required by the Fourth Amendment, according to the United States Supreme Court decisions in Berger v. New York, 388 U.S. 41 (1967), and Katz v. U.S., 389 U.S. 347 (1967).  This legislation includes a necessity requirement not unlike that found in s. 186(1) .  A judge may issue a court order authorizing a wiretap only if he or she has determined “on the basis of the facts submitted by the applicant that . . . normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous”: 18 U.S.C. § 2518(3)(c).

 


33                               Recent jurisprudence has confirmed that such language is to be interpreted in a practical commonsense fashion, so that courts may issue wiretap orders even when the government has not pursued all other investigative techniques.  Courts have found a variety of grounds for allowing that normal investigative techniques are unlikely to succeed.  These include: a showing by the government that those techniques would not reveal key information (U.S. v. London, 66 F.3d 1227 (1st  Cir. 1995), at p. 1237); when it can be shown that those techniques are ineffective against a large-scale crime organization (U.S. v. Torres, 901 F.2d 205 (2d Cir. 1990), at p. 232; U.S. v. Commito, 918 F.2d 95 (9th Cir. 1990), at p. 98), a close-knit family (U.S. v. Guerra-Marez, 928 F.2d 665 (5th Cir. 1991), at p. 670) or a drug conspiracy (U.S. v. Milton, 153 F.3d 891 (8th Cir. 1998), at  pp. 897-98); or when counter-surveillance methods employed by the defendants made such methods unlikely to succeed (U.S. v. Smith, 31 F.3d 1294 (4th Cir. 1994), at p. 1299; U.S. v. Green, 40 F.3d 1167 (11th Cir. 1994), at p. 1172).

 

34                               Canadian jurisprudence has reflected this approach.  Writing for the Quebec Court of Appeal in R. v. Hiscock, [1992] R.J.Q. 895, 72 C.C.C. (3d) 303, leave to appeal refused, [1993] 1 S.C.R. vi, I asserted the relevance of the actual text of s. 186(1)  as follows (at p. 325 C.C.C.):

 

 

[translation] . . . s. 186  does not require that all alternative investigative techniques have been tried. It is not simply a recourse of last resort. It is a technique which must not be used in the absence of serious, probable grounds, but which can be employed not only when the other methods have failed, but also, when they appear to have little chance of  success or when the urgency of the matter would otherwise render the investigation unsuccessful.  [Emphasis added.]

 

But, in so doing, I also recognized the importance of giving meaning to the requirements for a wiretap authorization (at p. 319 C.C.C.):

 


[translation]  In his role, and in order to avoid inadmissible intrusions into the private lives of citizens, the authorizing judge must ensure that the application is based on reasonable and probable cause. It must not constitute a mere fishing expedition based on pure suspicion. He must also be convinced that it is necessary to have recourse to this particular investigative technique.  [Emphasis added.]

 

35                               This approach is founded on statutory interpretation and supported by a strong strand of case law.  Through this combination of text and context, it allows judges to apply in a balanced way the requirement of investigative necessity for wiretapping.  In so doing, the judge must keep important values of Canadian society in sight and look seriously at whether there is, practically speaking, no other reasonable alternative method of investigation.

 

2.  Application of the Standard to the Case at Bar

 

36                               How, then, should this approach be applied in the context of the case at bar?  There are two aspects of this application to consider.  First, we must determine whether the reasoning used by the British Columbia Court of Appeal strays too far from the text of the Criminal Code  and the important constitutional values that this text protects, thereby endangering privacy interests in other contexts.  Second, when applying the correct test, we must consider whether the Court of Appeal nevertheless correctly concluded that the authorizing judge could properly have issued an authorization based on the facts disclosed in the affidavit.

 


37                               The proper test, as I have set out above, concerns whether, practically speaking, there is no other reasonable means of investigation.  The judgment from the British Columbia Court of Appeal does not follow this language and, indeed, seems to use a far laxer standard.  The approach taken by the Court of Appeal has the potential to subvert the safeguards of privacy interests that are an essential component of the regulation of wiretapping in the Criminal Code .

 

38                               In concluding that “in the case at bar, there is no reason to impeach the choice of investigative techniques” (para. 33 (emphasis added)), Braidwood J.A. reasoned, based on earlier British Columbia Court of Appeal precedents, that the question was whether the authorizing judge “despite the fact that other investigative techniques may have had promise . . . could have concluded that the most efficacious way of fully investigating all those involved was to permit the police to employ wiretapping along with other investigative techniques” (para. 30 (italics in original; underlining added); see also para. 32).  The British Columbia Court of Appeal’s decisions have gradually moved in this direction, with prior precedents each lowering the bar another notch (see R. v. Paulson (1995), 97 C.C.C. (3d) 344; and R. v. Cheung (1997), 119 C.C.C. (3d) 507).  The question essentially becomes one of whether wiretapping is a more effective, rather than necessary, means of investigation, in the context of the particular criminal investigation.

 

39                               This approach is wrong in law.  A standard of “most efficacious” strays far from the text of s. 186(1) (b) and the privacy rights that it protects.  Such language does not match with the test enunciated above.  Indeed, in the end, one might well argue, using such an efficiency standard, that wiretapping should always be available to the police, since it might often help catch more criminals.  Such a result  would rightly send a chill down the spine of every freedom-loving Canadian.  We would replace a standard of necessity with one of opportunity at the discretion of law enforcement bodies.  The British Columbia Court of Appeal’s test must thus be rejected as inconsistent with the very words of the Criminal Code .

 


40                               Nevertheless, this disagreement with the approach of the Court of Appeal does not mean that the appeal must succeed on this point.  On the contrary, we must apply the proper test to the circumstances of the case at bar in order to ascertain whether its application would support the conclusion reached by the Court of Appeal.  More precisely, the question is whether the factual circumstances revealed in the affidavit could have provided a sufficient basis for the issuance of the authorization. 

41                               The facts as set out in the affidavit met this standard.  Catching the ringleaders in drug rings and conspiracies is never an easy task.  This is particularly so when, as here, they use counter-surveillance measures and behave in a clandestine fashion.  The affidavit attested to the failure of the police efforts in spite of the use of  physical surveillance and search warrants.  It also provided evidence as to why the use of informants or undercover agents trying to infiltrate the drug ring would be ineffective and potentially dangerous.  There was, in my view, evidence in the affidavit to negate arguments for other investigative techniques and to make the case that wiretapping was, practically speaking, the only reasonable alternative, taking into account the nature and purpose of this particular investigation. 

 


42                               The appellants made much of arguments that the cross-examination on the affidavit seemed to reveal the availability of another surveillance team, the Special Operations Group, that the police could have used.  The availability of another surveillance team was, in reality, of little consequence in the circumstances of the case at bar.  The fact is that the police had done extensive surveillance.  By doing so, they obtained some information.  But their surveillance efforts were occasionally met by counter-surveillance, whose presence can obviously affect the effectiveness of investigative methods, and by the clear reality that surveillance efforts alone would not bring them into contact with higher-ups in the drug organization.  Indeed, I am quite uncertain how surveillance alone would ever have given good proof of laundering and conspiracy.  By showing that the police were already conducting surveillance and that this was not accomplishing everything required, the affidavit materials established investigative necessity.

 

43                               The objective of the police investigation here was to bring the higher-ups in a drug ring to justice, not simply to remove a few replaceable street dealers.  Among their various arguments, the  appellants challenged the right of the police to define the objectives of their investigation, alleging that the police could manipulate the objectives in order to get the chance to use a wiretap.  However, it is clear that the police here had probable grounds to investigate the serious crimes that they were investigating.  This part of the test for wiretapping –  probable grounds for believing that serious crimes would likely occur – removes the need for concern about the kinds of suspicions that the appellants raise.  If the police have probable grounds to investigate a serious crime, then they may use wiretapping to do so, provided they meet the investigative necessity requirement.  There is nothing pernicious about the fact that the objective of their investigation rightly informs the investigative necessity analysis.  Here, the police had more need for wiretapping given that they were trying to move up the chain and catch the higher-ups in the operation.  This rightly reinforces the investigative necessity made plain by the affidavit materials.    

 

44                               The facts set out in the affidavit in the case at bar establish investigative necessity on the required standard.  Any argument that an authorization could not have issued based on the facts set out in the affidavits must fail.  On its face, the affidavit was sufficient to support an authorization.

 


45                               This being said, it is clear that the affidavit was not perfect, even on its face.  Prior to moving on to the subfacial review required by the last issue in the case at bar, it may be useful to discuss some practical suggestions about the form of affidavits on an application for a wiretap authorization in order to reduce needless litigation on similar matters and in better serving the interests of all parties.

 

46                               Looking at matters practically in order to learn from this case for the future, what kind of affidavit should the police submit in order to seek permission to use wiretapping?  The legal obligation on anyone seeking an ex parte authorization is full and frank disclosure of material facts: cf. Dalglish v. Jarvie (1850), 2 Mac. & G. 231, 42 E.R. 89; R. v. Kensington Income Tax Commissioners, [1917] 1 K.B. 486 (C.A.); Re Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.), at p. 528; United States of America v. Friedland, [1996] O.J. No. 4399 (QL) (Gen. Div.), at paras. 26-29, per Sharpe J.  So long as the affidavit meets the requisite legal norm, there is no need for it to be as lengthy as À la recherche du temps perdu, as lively as the Kama Sutra, or as detailed as an automotive repair manual.  All that it must do is set out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization.  Ideally, an affidavit should be not only full and frank but also clear and concise.  It need not include every minute detail of the police investigation over a number of months and even of years.

 


47                               A corollary to the requirement of an affidavit being full and frank is that it should never attempt to trick its readers.  At best, the use of boiler-plate language adds extra verbiage and seldom anything of meaning; at worst, it has the potential to trick the reader into thinking that the affidavit means something that it does not.  Although the use of boiler-plate language will not automatically prevent a judge from issuing an authorization (there is, after all, no formal legal requirement to avoid it), I cannot stress enough that judges should deplore it.  There is nothing wrong – and much right – with an affidavit that sets out the facts truthfully, fully, and plainly.  Counsel and police officers submitting materials to obtain wiretapping authorizations should not allow themselves to be led into the temptation of misleading the authorizing judge, either by the language used or strategic omissions. 

 

48                               Finally, while there is no legal requirement for it, those gathering affidavit material should give consideration to obtaining affidavits directly from those with the best firsthand knowledge of the facts set out therein, like the police officers carrying on the criminal investigation or handling the informers.  This would strengthen the material by making it more reliable.  In the present case, it might have prevented this case from turning into the mess it is now, still in appeal, after years of litigation on preliminary matters, without any final judgment on the guilt or innocence of the appellants. 

 

49                               This brings me to the adverse credibility finding against the affiant in the case at bar.  Practically speaking, these issues and much of the resulting litigation could have been largely avoided if the police had taken the simple step of having each of the handlers sign an affidavit on those matters within his or her particular knowledge.  This would almost certainly have ensured a more careful verification of the facts sworn in the affidavit material, potentially avoiding some of the needless errors that the affidavit ended up containing, and would also have made the application for an authorization less tied to the credibility of the one officer who ultimately attested to everything in it.

 


C.  Did the Trial Judge Apply Correctly the Standard of Review for a Wiretap                 Authorization, Including Amplification?

 

 

50                               Given that the police did not take such steps that might have prevented these problems from ever arising, I must now focus on the arguments that challenge the affidavit from a subfacial perspective.  Subfacial challenges to an affidavit go behind the form of the affidavit to attack the reliability of its content.  The issue here is whether the trial judge correctly applied the standard of review for a wiretap authorization in the face of the subfacial challenge that arose through cross-examination on the affidavit.

 

51                               The reviewing judge does not stand in the same place and function as the authorizing judge.  He or she does not conduct a rehearing of the application for the wiretap.  This is the starting place for any reviewing judge, as our Court stated in Garofoli, supra, at p. 1452:

 

The reviewing judge does not substitute his or her view for that of the authorizing judge.  If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.  In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.  [Emphasis added.]

 

 

 


As I noted as a judge at the Quebec Court of Appeal in Hiscock, supra, at p. 326 C.C.C., even a basis that is schematic in nature may suffice.  However, as our Court has recognized, it must be a basis founded on reliable information. In R. v. Bisson, [1994] 3 S.C.R. 1097, at p. 1098, the requirement was described as  “sufficient reliable information to support an authorization” (emphasis added).  The Court concluded that this requirement had still been met despite the excision of retracted testimony.  In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued.

 

52                               In oral argument, counsel for the appellant Grandmaison made much of a passage in R. v. Grant, [1993] 3 S.C.R. 223, at p. 251, where Sopinka J. explained the test applicable on a review of a search warrant when some of the information  supporting the warrant had been obtained in violation of the Constitution.  Sopinka J. wrote that “it is necessary for reviewing courts to consider whether the warrant would have been issued had the improperly obtained facts been excised from the information sworn to obtain the warrant: Garofoli, supra” (emphasis added).  In using the word “would”, Sopinka J. did not set out to alter the test that comes from Garofoli, given that he cited this judgment in the same sentence.  I take the word in this context not as setting a different standard of review but simply as suggesting the sincerity of the inquiry that a reviewing judge should undertake.  As this Court confirmed in Bisson, supra, the reviewing judge must carefully consider the existence of sufficient reliable information, that is, information that may reasonably be believed on the basis of which the authorization could have issued.

 


53                               Other appellate court jurisprudence confirms this understanding.  In the context of reviewing a search warrant, appellate courts have looked to whether the authorization could have issued: e.g., Mitton v. British Columbia Securities Commission (1999), 123 B.C.A.C. 263; R. v. Allain (1998), 205 N.B.R. (2d) 201 (C.A.), at p. 217; and R. v. Krist (1998), 113 B.C.A.C. 176, at p. 179.  But they look at this in context.  For example, in R. v. Monroe (1997), 8 C.R. (5th) 324 (B.C.C.A.), at p. 333, Esson J.A. stated that, after looking for whether there was sufficient grounds on which the judge could have authorized a warrant, “The judge was then required to assess the evidence placed before the justice, in the light of the evidence brought out at trial, in order to determine whether, after expunging any misleading or erroneous information, sufficient reliable information remained to support the warrant” (emphasis added).

 

54                               The authorities stress the importance of a contextual analysis.  The Nova Scotia Court of Appeal, while reviewing the cases from our Court cited above, explains this in a judgment dealing with problems arising out of errors committed in good faith by the police in the material submitted to the authorizing justice of the peace:

 

These cases stress that errors, even fraudulent errors, do not automatically invalidate the warrant.

 

This does not mean that errors, particularly deliberate ones, are irrelevant in the review process.  While not leading to automatic vitiation of the warrant, there remains the need to protect the prior authorization process.  The cases just referred to do not foreclose a reviewing judge, in appropriate circumstances, from concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventive function it serves.  [Emphasis added.]

 

(R. v. Morris (1998), 134 C.C.C. (3d) 539, at p. 553)

 

 

 

An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems.  Again, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge.


55                               Of course, this statement of the test does not fully explain the matter of which evidence the reviewing judge should consider in a situation where some of the original information was erroneous and there is an attempt to amplify it on review, a possibility which Sopinka J. in Garofoli, supra, at p. 1452, but briefly mentioned.  The Nova Scotia Court of Appeal in Morris, supra, at pp. 555-69, undertakes a careful examination of these questions based on our Court’s analyses in R. v. Plant, [1993] 3 S.C.R. 281, and Bisson, supra.

 

56                               In Plant, supra, our Court considered a situation where the information on a search warrant application compressed two parts of the police investigation by stating that an informant had supplied the police with a particular address when the informant actually supplied a precise description of the house that enabled the police to identify its address.  The address itself would be excised from the information on review, but Sopinka J., at pp. 298-99, allowed for the amplification of the information obtained from the informant and concluded that, given that there was no deliberate attempt to mislead, the information concerning the description of the house and the fact that the police had found such a house at the address in question could still contribute to the existence of reasonable and probable grounds.  As Morris, supra, at p. 556 notes, only erroneous information “needs to be excluded from consideration and that material, provided it is not part of a deliberate attempt to mislead the Justice of the Peace, may be amplified by evidence on review showing the true facts”.

 


57                               In Bisson, supra, at p. 1098, our Court gave very short reasons but also affirmed the reasons of Proulx J.A. in the Quebec Court of Appeal, [1994] R.J.Q. 308, 87 C.C.C. (3d) 440.  In his judgment, Proulx J.A. was clear that a court must look at non-disclosure of any material fact [translation] “with respect to the affidavit considered as a whole, or even with respect to the remaining parts of it” (p. 455 C.C.C.).  He quoted at p. 457 C.C.C. from the Ontario Court of Appeal in Church of Scientology, supra, at pp. 528-29: “[T]he function of the reviewing judge is to determine whether there is any evidence remaining, after disregarding the allegations found to be false and taking into consideration the facts found to have been omitted by the informant, upon which the justice could be satisfied that a search warrant should issue” (emphasis added) also affirmed in Morris, supra, at p. 558.  Again, erroneous information is properly excised.  In Bisson, supra, of course, the recanted information obviously had to be excised entirely and the remaining information then assessed in the totality of the circumstances.  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.  Nonetheless, there would be no need to seek to amplify the record if sufficient reliable material remains even after excising the erroneous material.

 

58                               Thus, in looking for evidence that might reasonably be believed on the basis of which the authorization could have issued, the reviewing court must exclude erroneous information.  However, if it was erroneous despite good faith on the part of the police, then amplification may correct this information. 

 


59                               When using amplification, courts must strike a balance between two fundamental principles of search and seizure law that come into a rather unique tension in these kinds of situations: see Morris, supra, at pp. 567-68.  As a result of this tension, the cases disclose divergent attitudes to incomplete or incorrect affidavits and amplification thereof: see Morris, at pp. 560-67; cf. R. v. Madrid (1994), 48 B.C.A.C. 271, at pp. 285-90, and R. v. Harris (1987), 35 C.C.C. (3d) 1 (Ont. C.A.), at pp. 23 and 27 (leave to appeal refused, [1987] 2 S.C.R. vii).  The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement.  Since a prior authorization is fundamental to the protection of everyone’s privacy interests (Hunter v. Southam Inc., supra, at p. 160), amplification cannot go so far as to remove the requirement that the police  make their case to the issuing judge, thereby turning the authorizing procedure into a sham.  On the other hand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made some minor, technical error in the drafting of their affidavit material.  Courts must recognize (along with investigative necessity) the two principles of prior authorization and probable grounds, the verification of which may require a close examination of the information available to the police at the time of the application for a wiretap, in considering the jurisprudence on amplification.  The approach set out earlier to erroneous information in an affidavit on a wiretap application attempts to reconcile these principles.  Courts should take a similar approach to amplification. 

 


60                               In this case, any credibility issue related to the police officer was temporally and logically far removed from the affidavit itself.  More than a year after the swearing of the affidavit, Constable Rosset was found to lack credibility on the issue of why he had not disclosed a drafting mistake, perhaps a very minor typographical error.  There is no suggestion that there was ever any untruthfulness in the substance of the information in the affidavit itself: see the Court of Appeal judgment at para. 23.  In these circumstances, a global finding against the entire affidavit was unreasonable.  That there were some errors of a typographical nature in a 130-page affidavit is not even entirely surprising.  The trial judge accepted that these errors were inadvertent.  Although it is regrettable that the police did not adopt procedures as outlined above that might have lessened the possibility of these kinds of errors, that they did not do so does not provide grounds for jettisoning all the results of a careful and lengthy investigation. 

 

61                               Even without the information from sources “C” and “E”, the affidavit would have provided ample evidence to an issuing judge and evidenced the existence of probable grounds and investigative necessity.  Moreover, amplification would allow for the reading of the information from the now correctly attributed sources “C” and “E” as well, which could make only slight differences on the weight given to small pieces of the evidence.  There was still ample evidence in the rest of the affidavit to suggest that the appellants were trafficking substantial quantities of cocaine.  Thus, given that the affidavit met the requisite investigative necessity requirement, as it was established above, there was no basis on which to overturn the authorization.  The Court of Appeal was correct in upholding the issuing judge’s authorization.         

 

VII.      Conclusion

 

62                               For these reasons, which differ in part from those of the British Columbia Court of Appeal, I would dismiss the appeal.  In the result, the judgment of the Court of Appeal setting aside the acquittals and ordering a new trial would thus be upheld.


Appeal dismissed.

 

Solicitor for the appellant Araujo:  Adrian F. Brooks, Victoria.

 

Solicitor for the appellant S. Leslie:  David N. Lyon, Victoria.

 

Solicitors for the appellant Grandmaison:  Sack Goldblatt Mitchell, Toronto.

 

Solicitors for the appellant Khoury:  Green & Claus, Victoria.

 

Solicitor for the appellant  Camara:  Michael J. B. Munro, Victoria.

 

Solicitors for the appellants Jenkins, T. M. Leslie and Irons:  Simons McKenzie Law Corp., Victoria.

 

Solicitors for the appellant Lathangue:  Mayland McKimm & Associates, Victoria.

 

Solicitor for the respondent:  The Attorney General of Canada, Vancouver.

 

 

 

 

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