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R. v. Thompson, [1990] 2 S.C.R. 1111

 

Perry Gordon Thompson,

Ross Allen Rosen, Beebe Auld,

Glen Douglas McDonald

and James Cromwell      Appellants

 

v.

 

Her Majesty The Queen    Respondent

 

indexed as:  r. v. thompson

 

File No.:  19992.

 

1988:  November 29, 30; 1990:  October 18.

 

Present:  Dickson C.J.* and Lamer C.J.** and McIntyre***, Wilson, La Forest,

L'Heureux-Dubé and Sopinka JJ.

 

on appeal from the court of appeal for british columbia

 

    Criminal law -- Interception of private communications -- Validity of authorization -- Sufficiency of description -- Places of interception:  public pay phones and residential premises -- Authorizations permitting private communications to be intercepted at all places resorted to by named persons within the province -- Whether authorizations valid -- Whether public pay telephones should be specifically mentioned on face of authorizations ‑‑ Criminal Code, R.S.C. 1970, c. C-34, ss. 178.12(1)(e), 178.13(2)(c), 178.16(1).

 

    Criminal law -- Interception of private communications -- Validity of authorization -- Renewal or new authorization -- Police obtaining new authorization prior to expiration of original authorization -- New authorization including new parties and locations for surveillance -- Whether appropriate to seek new authorization rather than renewal -- Criminal Code, R.S.C. 1970, c. C-34, Part IV.1.

 

    Criminal law -- Interception of private communications ‑‑ Admissibility of evidence -- Proof of resorting to a place -- Authorizations permitting private communications to be intercepted at all places resorted to by named persons within the province -- Whether intercepted private communication in itself can afford evidence that a person resorted to "a place" ‑‑ Criminal Code, R.S.C. 1970, c. C-34, Part IV.1.

 

    Constitutional law -- Charter of Rights  -- Unreasonable search and seizure ‑‑ Interception of private communications -- Authorizations permitting private communications to be intercepted at all places resorted to by named persons within the province -- Surreptitious entry into residential premises to install intercepting devices -- Intercepting devices installed on public pay telephones -- No conditions included in authorizations to protect public interest -- Whether authorizations violate s. 8 of the Canadian Charter of Rights and Freedoms -- If so, whether communications intercepted under authorizations should be excluded pursuant to s. 24(2)  of the Charter  -- Criminal Code, R.S.C. 1970, c. C-34, Part IV.1.

 

    The appellants were charged with conspiracy to import marijuana.  The Crown's case consisted principally of private communications which were intercepted under three judicial authorizations.  Paragraph (c) of these authorizations permitted the interception of telephone communications at the addresses of the persons named in the authorizations "or elsewhere in the Province of British Columbia resorted to" by these persons.  The first authorization named the appellants T, A and R, and the affidavit filed with it before the authorizing judge revealed that the police intended to intercept communications at public pay telephones.  Acting under this authorization, the police installed intercepting equipment at several residences, hotel rooms and public pay telephones.  A second authorization overlapped the first authorization by two days.  It named ten persons, including all appellants except M. Prior to the expiry of the second authorization, a third authorization was granted naming twelve persons, including all appellants except M.  Under the second and third authorizations, intercepting equipment was installed on other pay telephones.  The equipment installed during the first authorization remained in place in most of the pay telephones until the end of the investigation.  This interception capability was not mentioned in the subsequent authorizations.  On some occasions during the investigation, tape recorders installed on pay telephones were left on "automatic play mode" overnight, intercepting the conversations of persons not covered by the authorizations.  The trial judge, on a voir dire, held all but nine interceptions inadmissible.  The Crown called no evidence before the jury and the trial judge directed the jury to acquit the appellants.  The Crown's appeal was allowed and a new trial ordered.  This appeal is to determine (1) whether an authorization permitting the interception of private communications at all places resorted to by named persons within the province was lawful; (2) whether such places could include public pay telephones; (3) whether new authorizations, rather than renewals, were permissible; (4) whether an intercepted communication could in itself provide evidence that a person resorted to a place at which communications were intercepted; and (5) whether unsupervised electronic surveillance of public pay telephones and surreptitious entry into private dwellings constituted unreasonable searches or seizures contrary to s. 8  of the Canadian Charter of Rights and Freedoms .

 

    Held (Wilson and La Forest JJ. dissenting):  The appeal should be dismissed.

 

    Per Dickson C.J. and Lamer C.J. and L'Heureux-Dubé and Sopinka JJ.:  The authorizations complied with the requirements of Part IV.1 of the Criminal Code .  The authorizations did not permit the interception of communications of anyone anywhere within the province.  They contained limitations.  Paragraph (c) was limited to named persons and paragraph (d) was limited to persons who resort to or use named premises or communicated with named persons.  As to place, each was limited to places resorted to by five named individuals.  Paragraphs (c) and (d), therefore, did not delegate to the police the determination as to whether the interceptions would assist in the investigation.  This determination was made by the authorizing judge on the basis of the connection to the target persons.

 

    The authorizations were not invalid because they failed to list pay telephones as places where private communications could be intercepted.  A more specific description could have been given in view of the fact that the police knew that the named persons intended to resort to pay telephones.  However, subject to its effect on s. 8  of the Charter , this in itself does not render the authorizations unlawful.  Section 178.13(2)(c) of the Code does not state that it must be the most specific description.  It requires only a general description.

 

    The police should apply to renew an existing authorization when they want to extend its term and leave its other provisions unchanged.  Where the authorization has expired or where it is sought to extend the scope of surveillance, however, the proper course is to seek a new authorization.  Here, the second and third authorizations widened the scope of the first authorization, adding between them nine new targets for interception.  It was therefore proper for the Crown to apply, under Part IV.1 of the Code, for new authorizations instead of renewals.

 

    On a proper interpretation of the "resort to" clause, the police can only intercept communications of the target person at a place if they have evidence to believe, on reasonable and probable grounds, that this place was resorted to or would be resorted to by the target.  An intercepted communication cannot in itself provide evidence that a person "resorted to" a particular place, bringing that interception into compliance with the authorizations.  Before the evidence of the conversation can be admitted, there must be other evidence before the trial judge indicating that the location was a place resorted to or used by the accused.  This can be established through a previously lawfully authorized interception.  In this case, the interceptions made under paragraph (c) of the authorizations are lawful under Part IV.1 of the Code, provided that the police acted upon sufficient evidence that a person "resorted to" a place.  The interceptions made at places for which such evidence was absent were unlawful and, therefore, inadmissible under s. 178.16(1) of the Code.

 

    Electronic surveillance constitutes a "search or seizure" within the meaning of s. 8  of the Charter .  Paragraph (c) of the authorizations did not per se violate the s. 8  requirement of prior judicial authorization demanded under Hunter.  The "resort to" clause did not enable the police to usurp the function of the judge.  The authorizing judge's determination as to whether there are reasonable and probable grounds to believe that the interception of an individual's private communications will assist the investigation can be made with respect to certain classes of places under s. 178.13 of the Code.  To require a determination by the police officers that they have reasonable and probable grounds for believing that the place complies with the general description before the authorization is acted upon is an additional safeguard to the dictates of s. 178.13 .  From the perspective of the rights of a person who is a target of the authorization, if it is reasonable to intercept the communication of a person at a specified address, it is equally reasonable to intercept his communication at another place to which he resorts.  The nature of the invasion of a person's privacy does not change with that person's location.

 

    However, while the nature of the invasion of a person's privacy is constant, what changes with that person's location is the possible effect on third parties.  Where the police are aware, prior to seeking an authorization, that the targets make extensive use of pay telephones, the authorizations, to comply with s. 8 , must at a minimum provide that conversations at a pay telephone should not be intercepted unless there are reasonable and probable grounds for believing that a target is using the telephone at the time that the listening device is activated.  The police cannot simply install a listening device and leave it running indiscriminately in hope that a target may come along.  While the failure to impose conditions protecting the public interest under s. 178.13(2)(d) of the Code is not unlawful because the power is discretionary, the failure to do so in the present circumstances was unreasonable.  Therefore, any evidence obtained as a result of interceptions at pay telephones in the absence of reasonable and probable grounds for believing that a target was using the telephone was obtained in contravention of s. 8 .

 

    Interceptions obtained by means of surreptitious entry into residential premises which were not specifically mentioned on the face of the authorizations also violated s. 8  of the Charter .  In the absence of express mention of a private residence in the authorizations, the authorizing judge could not under s. 178.13(2)(d) of the Code impose conditions to safeguard the public's interest in privacy within the sanctuary of a private dwelling.

 

    Unlawful interceptions -- in the sense of non-compliance with the provisions of Part IV.1 of the Code -- must be excluded under s. 178.16(1) of the Code.  Interceptions which fall within the terms of the Code but nonetheless violate s. 8  of the Charter  are inadmissible only if their admission would bring the administration of justice into disrepute.  In this case, interceptions at places for which the Crown cannot adduce sufficient evidence of "resorting to" are unlawful and, hence, inadmissible.  The interceptions obtained at pay telephones and residential premises in contravention of s. 8  of the Charter  are admissible.  The breach of s. 8  was not deliberate, wilful or flagrant.  The police officers acted entirely in good faith.  They were acting in accordance with what they had good reason to believe was the law at the time.  The fact that the telephone number of some of the persons named in the first authorization was for a pay telephone was before the authorizing judge.  The police acted in accordance with authorizations which complied with the provisions of the Code.  The admission of evidence gathered in these circumstances would not bring the administration of justice into disrepute.

 

    Per Wilson J. (dissenting):  Because the tapping of public pay phones gives rise per se to massive violations of the rights of third parties to be free from unreasonable searches as guaranteed by s. 8  of the Charter , an order made pursuant to Part IV.1 of the Code, which is intended by the judge to authorize the tapping of such phones, must do so expressly and not by implication under a general "resort to" clause.  When the authorizing judge expressly states in the authorization precisely what he intends to permit the police to do, he shows on the face of the authorization that he has turned his mind to the extent of the invasion of privacy sought by the police and has considered whether in the particular circumstances before him such an invasion is warranted.  Unless the issuing authority does this, it cannot be known under the Wilson regime whether the authorizing judge exercised a judicial discretion in granting the authorization or whether he intended or did not intend the "resort to" clause to cover the tapping of public pay phones.  The validity of an authorization made under s. 178.13 of the Code, therefore, should be determined not by asking whether it can on its face conceivably be construed as authorizing what was done but by asking whether it is clear from the face of the authorization that the authorizing judge in fact authorized what was done in the exercise of a discretion based on all the relevant facts.  If that question is answered in the negative, or if there is any doubt about the answer, then the authorization and the interceptions made pursuant to it are invalid and the evidence acquired is inadmissible pursuant to s. 178.16(1) of the Code.

 

    La Forest J.'s reasons on the matters not specifically addressed here were agreed with.

 

    Per La Forest J. (dissenting):  Under the Criminal Code , the "resort to" clauses are not ipso facto invalid.  Section 178.13(2)(c) of the Code gives a judge a discretion to insert such a clause in an authorization to electronically intercept private communications.  This discretion, however, should not be routinely exercised.  Rather, it must be exercised consistently with the purpose of Part IV.1 of the Code, which is to protect the privacy of individuals.  The discretion must also be read to conform with the Charter .  When an invasion of privacy becomes necessary in the course of an investigation, the police must, under Part IV.1, seek an authorization and give the judge highly specific information so that he can properly exercise his discretion to set limits on unnecessary intrusions on privacy.  Section 178.13(2) (c) requires a description of the place of interceptions where possible and interceptions should accordingly be limited, in all but the narrowest of circumstances, to places for which information was available at the time of the application for the authorization.  An authorization may properly incorporate a "resort to" clause, but only where the police are not in a position to give a general description of the places of interceptions.

 

    Surreptitious electronic interception of private communications constitutes a "search or seizure" within the meaning of s. 8  of the Charter .  These interceptions strike at the heart of the privacy rights s. 8  is designed to protect.  While Part IV.1 of the Code, read as a whole, is constitutional, the granting of a particular authorization may offend s. 8 .  A "resort to" clause does not generally meet the standard of reasonableness set forth in Hunter for such a clause is effectively a delegation to the police of the discretion which under the Hunter standard must, where feasible, be exercised by a judge or other independent person.  It is only reasonable to insert a "resort to" clause in those limited circumstances where Parliament, under Part IV.1 of the Code, intended that a judge could grant an authorization to intercept communications in an unspecified place.  When a "resort to" clause has been properly included in an authorization, the police must themselves act reasonably to comply with the high standard set by s. 8 .  This includes the duty to act on the basis of reasonable and probable cause in placing intercepts under a "resort to" clause.

 

    In the present case, the police were aware from the outset that those under investigation resorted to and made use of pay phones, and that they used a code to advise one another of the locations where they could be reached.  While this type of scheme warrants the granting of an authorization that includes a "resort to" clause, in spite of the fact that interceptions could be placed at several known locations, the present authorizations did not respect the requirements of Part IV.1 of the Code or of s. 8  of the Charter  and are therefore void.  Interceptions of public pay phone conversations have serious implications for the privacy of third parties.  The authorizing judge should have directed his mind to these considerations and exercised his discretion to limit the powers of the police by setting them out in the authorizations.  Nothing in the authorizations indicates any exercise of the discretion.  Simply authorizing the police, in their sole discretion, to use any electronic means of interception anywhere the suspects may go is incompatible with the Code and unreasonable under the Charter .  This effectively amounts to a failure on the judge's part to exercise his discretion and a delegation of that discretion to the police.  The authorizations should have made specific reference to pay phones.  What the authorizations permit must not be left to guesswork or interpretation by the police.

 

    An intercepted communication cannot in itself provide evidence that a person "resorted to" a particular place, bringing that interception into compliance with the authorizations.  The existence of extrinsic evidence is always necessary.

 

    The police should have applied for renewals instead of fresh authorizations with respect to the persons and addresses stated in the first authorization.  On a proper interpretation of s. 178.13 of the Code, an application for renewal should be made if continued surveillance is contemplated and fresh authorizations should be sought only with respect to persons or places added to the investigation.  Section 178.13(3) has been carefully tailored to permit a judge to assess whether the electronic search should continue or whether it has become overly prolonged and unwarranted.  Accordingly, as regards the persons and places contemplated in the first authorization, any evidence gained during the course of the subsequent authorizations is inadmissible.  The second and third authorizations may be severed, however, and, if otherwise lawfully obtained, are valid in respect of the persons and places therein added.

 

    The information obtained from the pay phones known at the time of the second and third authorizations is inadmissible.  A "resort to" clause cannot cover specific locations that are already known by the police.  Under s. 178.13(2)(c) of the Code, Parliament requires that a description of the place of interception must be given to the judge authorizing the interception where this is possible at the time.  To ignore this requirement defeats Parliament's intention that electronic invasions of privacy, necessary in the interests of law enforcement, be authorized by a judge.  Further, for an authorization to comply with s. 8  of the Charter , all the proposed places of interception known to the police when the application is made must be described in reasonably specific terms.  If a place is intercepted under a "resort to" clause following that authorization, it must similarly be described in any subsequent authorization or renewal.  It is incumbent on the police, as agents of the state, to supply this information.  There is no question that it was feasible in this case for the police to supply the information regarding the pay phones they had already "bugged" when they applied for the second and third authorizations.  These authorizations fail to meet the Hunter requirement that a search and seizure requires pre-authorization by a judicial officer where this is feasible, and are therefore unreasonable.

 

    Interceptions obtained by means of surreptitious entry into residential premises which were not specifically mentioned on the face of the authorizations also violated s. 8  of the Charter .  There is a clear distinction between a breach of privacy occasioned by an interception accompanied by surreptitious entry and one that is not.  Surreptitious entry strikes at a right that, though bound up to some degree with the privacy rights protected by Part IV.1 of the Code, is nevertheless an independent and distinct right.  Given that two distinct constitutionally protected interests are engaged when surreptitious entry is effected pursuant to an authorization to intercept private communications under s. 178.13(1) of the Code, it follows that invasion of either right should be countenanced solely on the basis of the Hunter standard.  Accordingly, the authorizing judge must be placed in a position to consider the matter.

 

    Since the evidence in this case was obtained in violation of the provisions of Part IV.1 of the Code, it is inadmissible under s. 178.16 of the Code.  It is thus unnecessary to consider whether the admission of this evidence would be also inadmissible for breach of the Charter  under circumstances that would bring the administration of justice into disrepute as provided by s. 24  of the Charter .

 

Cases Cited

 

By Sopinka J.

 

    Applied:  R. v. Niles (1978), 40 C.C.C. (2d) 512; R. v. Papalia, [1988] 2 S.C.R. 137, aff'g (1984), 13 C.C.C. (3d) 449 (Ont. C.A.); distinguished:  Grabowski v. The Queen, [1985] 2 S.C.R. 434; considered:  Lyons v. The Queen, [1984] 2 S.C.R. 633; Wiretap Reference, [1984] 2 S.C.R. 697; R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48; referred to:  R. v. LeClerc (1985), 20 C.C.C. (3d) 173; Dalia v. United States, 441 U.S. 238 (1979); R. v. McLeod, [1988] N.W.T.R. 103; R. v. Paterson, Ackworth and Kovach (1985), 18 C.C.C. (3d) 137 (Ont. C.A.), aff'd [1987] 2 S.C.R. 291; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Wiggins, [1990] 1 S.C.R. 62; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Katz v. United States, 389 U.S. 347 (1967); Mead and Ford v. R. (No. 2) (1988), 72 Nfld. & P.E.I.R. 33; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Badovinac (1977), 34 C.C.C. (2d) 65; R. v. Pleich (1980), 16 C.R. (3d) 194; R. v. Nicolucci (1989), 53 C.C.C. (3d) 546 (Que. C.A.), aff'g (1985), 22 C.C.C. (3d) 207 (Que. Sup. Ct.); R. v. Vrany, Zikan and Dvorak (1979), 46 C.C.C. (2d) 14; R. v. Dubois (1986), 27 C.C.C. (3d) 325.

 

By Wilson J. (dissenting)

 

    Wilson v. The Queen, [1983] 2 S.C.R. 594; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038.

 

By La Forest J. (dissenting)

 

    Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Grabowski v. The Queen, [1985] 2 S.C.R. 434; R. v. Papalia, [1988] 2 S.C.R. 137, aff'g (1984), 13 C.C.C. (3d) 449 (Ont. C.A.); R. v. Playford (1987), 61 C.R. (3d) 101; R. v. Blacquiere (1980), 57 C.C.C. (2d) 330; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Wiggins, [1990] 1 S.C.R. 62; R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48; R. v. Pleich (1980), 16 C.R. (3d) 194; R. v. Dubois (1986), 27 C.C.C. (3d) 325; R. v. Vrany, Zikan and Dvorak (1979), 46 C.C.C. (2d) 14; R. v. Volpe (1981), 63 C.C.C. (2d) 506; Wilson v. The Queen, [1983] 2 S.C.R. 594; R. v. Meltzer, [1989] 1 S.C.R. 1764; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Rahey, [1987] 1 S.C.R. 588; R. v. Chesson, [1988] 2 S.C.R. 148; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Landry, [1986] 1 S.C.R. 145; Dalia v. United States, 441 U.S. 238 (1979).

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms , ss. 8 , 24(2) .

 

Constitution Act, 1982 , s. 52(1) .

 

Criminal Code, R.S.C. 1970, c. C-34 [am. 1973-74, c. 50, s. 2], ss. 178.11(2)(a), 178.12(1)(e) [rep. & sub. 1976-77, c. 53, s. 8(1)], 178.13 [am. idem, s. 9], 178.15(1), (2), 178.16(1) [rep. & sub. idem, s. 10], 618(2) [am. 1974-75-76, c. 105, s. 18].

 

Protection of Privacy Act, S.C. 1973-74, c. 50, s. 2.

 

18 U.S.C.A., {SS} 2518(5).

 

Authors Cited

 

Carr, James G.  The Law of Electronic Surveillance, 2nd ed.  New York:  Clark Boardman Co., 1986 (loose-leaf).

 

Rauf, M. Naeem.  "Recent Developments in Wire-tap Law" (1989), 31 Crim. L.Q. 208.

 

Watt, David.  Law of Electronic Surveillance in Canada.  Toronto:  Carswells, 1979.

 

    APPEAL from a judgment of the British Columbia Court of Appeal (1986), 33 D.L.R. (4th) 744, [1986] 5 W.W.R. 131, 29 C.C.C. (3d) 516, 53 C.R. (3d) 56, allowing the Crown's appeal from an acquittal of the accused on a charge of conspiracy to import marijuana.  Appeal dismissed, Wilson and La Forest JJ. dissenting.

 

    Sidney B. Simons, for the appellants Thompson and Cromwell.

 

    Barry L. Long, for the appellants Rosen and McDonald.

 

    Patrick A. Good, for the appellant Auld.

 

    S. David Frankel and Ian J. McKinnon, for the respondent.

 

//Sopinka J.//

 

    The judgment of Dickson C.J. and Lamer C.J. and L'Heureux-Dubé and Sopinka JJ. was delivered by

 

    SOPINKA J. -- This appeal raises several issues concerning the requirements for authorizations for the interception of private communications pursuant to Part IV.1 of the Criminal Code, R.S.C. 1970, c. C-34: whether an authorization permitting the interception of private communications at all places resorted to by named persons within the province is lawful; whether such places can include public pay telephones; whether an intercepted communication can itself provide evidence that a person resorted to a place at which communications were intercepted; and whether a fresh authorization is permissible rather than a renewal.  The appeal further raises the question whether unsupervised electronic surveillance of public pay telephones and surreptitious entry into private dwellings constitute unreasonable searches or seizures contrary to s. 8  of the Canadian Charter of Rights and Freedoms .

 

Facts

 

    The appellants were charged with conspiracy to import marijuana between March 1, 1983 and September 12, 1983.  The Crown's case consisted principally of one hundred thirty-six intercepted communications.  At trial, a voir dire was held to determine the admissibility of the interceptions.  At its conclusion, the trial judge held all but nine inadmissible.  The Crown called no evidence before the jury and the trial judge directed the jury to acquit the appellants.  The Crown's appeal was allowed and a new trial was ordered: (1986), 33 D.L.R. (4th) 744, [1986] 5 W.W.R. 131, 29 C.C.C. (3d) 516, 53 C.R. (3d) 56.  This appeal is made as of right under s. 618(2)  of the Criminal Code .

 

    The case involved an intensive police investigation which was carried out in widely separated areas of the province of British Columbia, and resulted on September 11, 1983 in a seizure of 278 lbs. of marijuana in a vehicle driven by the appellant, McDonald, in which Rosen was a passenger.  The police were aware from the outset that those under investigation resorted to and made wide use of pay telephones as a means of communication, and that in doing so they used a code to advise each other of the locations at which they could be reached.  During the investigation, the police installed and operated interception devices upon several pay telephones, private residential premises and hotel rooms occupied by the appellants or some of them.

 

    Three authorizations were procured by the authorities during the investigation.  The authorizations are identical except for the dates, the agent applying for the authorization, the names of the affiants, and the identities of the persons whose private communications may be intercepted (targets) in paragraph (c) in each authorization.  The first authorization ran from March 23, 1983 to May 21, 1983.  It included appellants Thompson, Rosen and Auld. It permitted interception of telephone communications at the addresses of the appellants "or elsewhere in the Province of British Columbia resorted to by the said Perry Gordon THOMPSON, Beebe AULD, Ross Allen ROSEN . . . ".  The affidavit filed before the authorizing judge revealed that the police authorities intended to intercept communications at public pay telephones.  Acting under this authorization, intercepting equipment was installed at several residences and hotel rooms and six public pay telephones.  For ease of reference, paragraphs (c) and (d) of the first authorization are reproduced below. 

 

(c)The identities of the known persons whose private communications may be intercepted and the places at which private communications may be intercepted are:

 

Perry Gordon THOMPSON

171-1st Avenue

Cultis Lake, B.C.                  (tel. no. 858-9276)

 

Beebe AULD

171-1st Avenue

Cultis Lake, B.C.                  (tel. no. 858-9276)

 

Ross Allen ROSEN

3968 A Columbia Valley Highway

Cultus Lake, B.C.                 (tel. no. 858-6254)

 

Miron Renoldo KRULL

1601 - Columbia Valley Highway

Cultus Lake, B.C.                 (tel. no. 858-9992)

 

Lori Christine MARSHALL

1601 - Columbia Valley Highway

Cultus Lake, B.C.                 (tel. no. 858-9992)

 

or elsewhere in the Province of British Columbia resorted to by the said Perry Gordon THOMPSON, Beebe AULD, Ross Allen ROSEN, Miron Renoldo KRULL and Lori Christine MARSHALL.

 

    (d)The persons whose identities are not known as of the date hereof whose private communications may be intercepted and the places at which private communications may be intercepted are:

 

    (i)those persons who resort to or use the premises described in sub-paragraph (c) hereof, or

 

    (ii)those persons who are in communication with the persons described in sub-paragraph (c) hereof apparently with respect to an offence mentioned in paragraph (a) hereof;

 

    which private communications may be intercepted at any of the premises hereinbefore described and any place or premises in the Province of British Columbia resorted to or used by the persons described in sub-paragraph (c) hereof.

 

    On May 19, 1983 a second authorization was granted.  It ran from May 19, 1983 to July 17, 1983, overlapping the first authorization by two days.  It named ten persons, including all appellants except McDonald.  A third authorization was granted on July 15, 1983, again overlapping its predecessor.  It named twelve persons, including all appellants except McDonald.  The equipment installed during the first authorization remained in place in most of the pay telephones until the end of the investigation.  This interception capability was not mentioned in the second authorization.  During the second authorization interception equipment was installed with respect to an additional five pay telephones.  These eleven pay telephones were not mentioned in the third authorization.  Before the conclusion of the investigation, interception equipment was installed in nine more pay telephones, making a total of twenty.  Likewise there was no mention in the second and third authorizations of a listening device having been installed during the currency of the first authorization at the business premises of 1721 Harvey Avenue, Kelowna, British Columbia.

 

    On approximately twenty occasions tape recorders were left on "automatic play mode" overnight with respect to certain pay phones.  This resulted in interception of conversations of persons not covered by the authorizations.  This is apparently contrary to R.C.M.P. policy with respect to monitoring pay telephones.  On such occasions the procedure was to rewind the tape, and play enough of the intercepted conversation to determine if a "target" was speaking.  Only if a target was speaking would the whole conversation be listened to and noted.  Otherwise, the conversation would be played forward at a fast speed and a low volume so that it was unintelligible.  If, however, no targets were speaking but early in the conversation it became apparent that the conversation related to other criminal activity, the entire conversation would be listened to.

 

Decisions Below

 

County Court

 

    McMorran Co. Ct. J. opened the sealed packet for the first authorization because one of the telephone numbers listed for Thompson and Auld was actually for a public telephone.  After examining the affidavits he concluded there was no misrepresentation before the issuing judge.  He neither opened the sealed packet nor considered the validity of the material behind the face of the second and third authorizations, for there was no application to do so.

 

    He next considered the fact that public telephones were not specifically mentioned in the first authorization, or that interceptions made under the first authorization were not mentioned in subsequent authorizations.  He ruled that these omissions struck at the heart of the validity of the authorizations and meant that the interceptions were not "lawfully made" within the meaning of s. 178.16(1)(a).  Interceptions of public pay telephones without specific authority vests the police with a discretion to intercept private communications wherever they thought it might be of assistance in obtaining evidence.  This constitutes, in McMorran Co. Ct. J.'s opinion, a delegation of the judge's function to the police.  He held any such interceptions inadmissible.

 

    McMorran Co. Ct. J. also held that there is no provision in the Code to permit a so-called "basket clause" particularly with respect to the absence of any reference to pay telephones.  He also expressed concern that automatic monitoring took place on public pay telephones; when no authorization is specifically granted for pay telephones, the result is a dragnet type of investigation not contemplated by the Criminal Code .

 

    McMorran Co. Ct. J. also held that Part IV.1 of the Criminal Code  does not permit new authorizations to be used in the place of renewals when some of the same people are involved and there was to be an overlap.  An application for a renewal requires supporting material not required for an earlier authorization.  To permit a subsequent authorization instead of a renewal undermines the policy of Part IV.1.

 

    McMorran Co. Ct. J. next held that an intercepted call may not be the sole basis to prove that the person whose call was intercepted "resorted to" the place in question, following R. v. Niles (1978), 40 C.C.C. (2d) 512 (Ont. C.A.).

 

    Turning to the issue of surreptitious entry, McMorran Co. Ct. J. found that the provisions of the Criminal Code  clearly contemplated surreptitious installations of bugging devices.  He held that the authorizations need not specifically authorize the use of audio-bugging devices, and necessarily entailed entry into the premises.  Following Lyons v. The Queen, [1984] 2 S.C.R. 633, he held that surreptitious entry violated neither the Criminal Code  nor the Charter 

 

    Lastly, McMorran Co. Ct. J. considered the defence argument that some of the interceptions violated s. 8  of the Charter  and should be excluded under s. 24(2) .  In view of his earlier decision that the Criminal Code  did not authorize the "resort to" clauses of the authorizations, he did not find it necessary to deal with the constitutional arguments.

 

Court of Appeal

 

    The British Columbia Court of Appeal reversed the trial judge's decision in a unanimous judgment of Macdonald, Macfarlane and Cheffins JJ.A.  It first rejected the argument that the Criminal Code  does not permit a "resort to" clause.  It held that this Court's decision in Grabowski v. The Queen, [1985] 2 S.C.R. 434, which held part of an authorization invalid because it contained no limitation as to persons or place, was based on the construction of the particular authorization at issue in that case.  The authorizations in this case were limited to named persons, named addresses, and the places resorted to by those persons.  Following its earlier decision in R. v. LeClerc (1985), 20 C.C.C. (3d) 173, the Court of Appeal held that the authorizations were not defective on this ground.

 

    Next, the Court of Appeal rejected arguments based on s. 8  of the Charter .  The respondents argued that while Part IV.1 is constitutional, "the granting of a particular authorization in the circumstances may be unreasonable and hence infringe s. 8 ": R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48 (Ont. C.A.), at p. 78.  The Court of Appeal accepted this proposition but found that absolute specificity of persons and places is not constitutionally required.  It is reasonable for a judge to recognize that a named person may hold conversations in several different places and to authorize interceptions of the communications at these places.

 

    The Court of Appeal also rejected the argument that surreptitious entry to place a listening device violated s. 8 .  Lyons v. The Queen, supra, and Wiretap Reference, [1984] 2 S.C.R. 697, held, prior to the Charter , that ss. 178.12  and 178.13  implicitly authorize entry to place listening devices.  Dalia v. United States, 441 U.S. 238 (1979), held that the Fourth Amendment did not prohibit per se covert entry when a warrant to search or place a device had been obtained.  The Court of Appeal held that until the Supreme Court of Canada decides otherwise, there is no constitutional requirement for specific authorization for surreptitious entry.

 

    The Court of Appeal also rejected that there should have been renewals rather than new authorizations.  The investigation was expanded when new parties were included.  Therefore, a new authorization was appropriate. 

 

    The Court of Appeal further rejected the argument that the authorizations were invalid because the failure to list pay telephones as places where private communications could be intercepted amounted to a failure to state "the place at which private communications may be intercepted" as required by s. 178.13(2) (c), or because the failure to prescribe limiting conditions with respect to privacy of third parties using pay telephones constitutes a delegation to the police of the function of the issuing judge.  Following R. v. Papalia (1984), 13 C.C.C. (3d) 449 (Ont. C.A.), the Court of Appeal held that the authorizations were valid on their face.  The respondents' argument was really a collateral attack on the validity if the authorizations which was a matter to be decided on a Wilson-type review.

 

    Finally, the Court of Appeal considered what proof was necessary to show that a person "resorted to" a particular place.  Indiscriminate monitoring in the hope that a suspect will use a particular telephone would violate the Criminal Code  provisions; indeed invasion of the privacy of others prior to the lawful interception is a matter for criminal sanction.  But if the trial judge is satisfied that it was a named person's voice which was recorded, then the person must have resorted to that place.  In this case, for many of the interceptions, the police monitored conversations at pay telephones because of authorized interceptions of earlier conversations that referred to them.  This is evidence that justifies concluding that the later interception came within the "resort to" clause.

 

    Having rejected all of the respondents' arguments, the Court of Appeal set aside the acquittals and ordered a new trial.

 

Issues on Appeal

 

    The appellants state six issues on appeal.  It was asserted that the Court of Appeal erred in law in holding that:

 

1.Section 178.13(2) (c) of the Criminal Code  permits as a term in an authorization language such as "or elsewhere in the Province of British Columbia resorted to" by named persons;

 

2.it is permissible to include in an authorization a term such as "or elsewhere in the Province of British Columbia resorted to" by named persons and that such term does not violate Section 8  of the Charter ;

 

3.Section 178.13(2) (c) does not require an authorization to state the place at which private communications may be intercepted where a general description of the place can be given;

 

4.an intercepted private communication in itself could afford evidence that a person "resorted to" a place without the condition precedent of "resorting to" being established by extrinsic evidence;

 

5.it was permissible to obtain fresh authorizations instead of renewals with respect to the same persons and offences as stated in the preceding authorizations;

 

6.Section 8 of the ... Charter  ... is not violated by [a] surreptitious entry into residential premises to install audio intercepts where an authorization ... is silent as to express judicial authorization and that such entry and installation is lawful.

 

    I will deal with the first four issues together because they each concern the extent to which Part IV.1 of the Criminal Code  and s. 8  of the Charter  demand conditions limiting the scope of surveillance on the face of an authorization.  I will refer to this issue in general terms as the issue of minimization.  I will then deal with issues 5 and 6 separately.

 

Minimization

 

    To understand the issue of minimization it is useful to begin by examining the role it plays in the American law of electronic surveillance.  Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C.A. specifically provides for minimization on the face of an authorization.  Section 2518(5) reads in part:

 

Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days.

 

The constitutional importance of this minimization requirement is discussed by J. G. Carr, The Law of Electronic Surveillance (2nd ed. 1986), at pp. 5‑27 and 5‑28:

 

    In light of the [Supreme] Court's condemnation in Berger [v. New York 388 U.S. 41 (1967)] of completely open-ended surveillance, it was necessary for Title III to include a regulatory mechanism to avoid indiscriminate, unlimited, uncontrolled surveillance.  That mechanism is the requirement that the order contain the minimization directive, which is a shorthand method of instructing the executing officers to remain within the authority granted by the terms of the eavesdropping order and to heed the constitutional proscription against general searches.... 

 

    Despite suggestions to the contrary, and occasional expressions of uncertainty, the minimization duty under {SS} 2518(5) implements a constitutional prerequisite to the validity of all court-ordered electronic surveillance.  Minimization embodies the constitutional obligation of avoiding, to the greatest possible extent, seizure of conversations which have no relationship to the crimes being investigated or the purpose for which electronic surveillance has been authorized.  Furthermore, the constitutional principle that all invasions of privacy must be limited in scope to the minimal intrusion necessary to fulfill their purpose is related to minimization, with particular reference to the problems of duration and termination.

 

    Canadian legislation, although based on the American model, does not specifically mandate minimizing conditions.  Section 178.13(2) (d) reads:

 

178.13  . . .

 

(2)                        An authorization shall

 

                                                                           ...

 

(d)  contain such terms and conditions as the judge considers advisable in the public interest;

 

The importance of this section in the legislative scheme was emphasized by Estey J. in Lyons v. The Queen, supra, at pp. 671-72. 

 

Having regard to the pattern of Part IV.1, the breadth of authority granted to the court, the importance of the subject matter, and the vitality of the role of the court in the legislative plan as the guardian of the public interest, explicit response by the court to the application for authority to intercept in many cases will require the prescription of "terms and conditions advisable in the public interest" pursuant to para. (2)(d) of s. 178.13 .

 

    The courts responsible for these orders of authorization must be ever concerned with the impact of these orders on members of the community who will obviously be directly affected by them.  An order in general terms following the wording of the appropriate subsection of Part IV.1 will not invalidate the order or affect the admissibility of the evidence gathered.  Much to be preferred, however, in many circumstances, would be a specific description of the apparatus to be employed, the manner of interception, and the terms and conditions appropriate to the action as revealed by the information contained in the application for authority to intercept.

 

Thus, while the importance of s. 178.13(2) (d) in the legislative scheme is recognized, it is the case that the section merely permits rather than demands minimizing conditions.  This has been criticized; for instance M. Naeem Rauf, in "Recent Developments in Wire-tap Law" (1989), 31 Crim. L.Q. 208, at p. 216, wrote:

 

    The protection offered by that paragraph appears to be a hollow one: if the authorizing judge does not impose conditions even where it is clear he ought to have done so, nothing very much happens because, as Estey J. also said in the Lyons case:

 

"An order in general terms following the wording of the appropriate subsection of Part IV.1 will not invalidate the order or affect the admissibility of the evidence gathered."

 

    While s. 178.13(2) (d) is permissive, it should be noted that of course other sections in Part IV.1 serve to place limitations on the types of communications which can be intercepted.  Counsel refer in particular to ss. 178.12(1)(e) and 178.13(2) (c).  The former requires that an affidavit in support of an application for an authorization must state:

 

178.12(1) ... 

 

(e)  the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable and probable grounds to believe may assist the investigation of the offence, a general description of the nature and location of the place, if known, at which private communications are proposed to be intercepted and a general description of the manner of interception proposed to be used;

 

The latter requires that the authorization on its face shall:

 

178.13 . . .

 

(2) ... 

 

(c)                        state the identity of the persons, if known, whose private communications are to be intercepted, generally describe the place at which private communications may be intercepted, if a general description of that place can be given, and generally describe the manner of interception that may be used;

 

    It was argued that these requirements were not met in the case at hand.  The appellants argue first that the "resort to" clause creates no limitation on the persons or places subject to interception, and second that the absence of mention in the second and third authorizations of the installation of listening devices at pay telephones fails to meet the requirement of a general description of the place at which private communications may be intercepted.

 

    An initial observation, when dealing with the "resort to" clause, is that the Code appears to envisage circumstances in which there will be authorization of intercepts at places unknown at the time of authorization.  Section 178.12(1)(e) requires that the application for authorization include "a general description of the nature and location of the place, if known, at which private communications are proposed to be intercepted".  (Emphasis added.)  Likewise 178.13(2)(c) requires a general description "if a general description of that place can be given".

 

    The principal case in the discussion of the issue of whether the "resort to" clause is nonetheless improper is Grabowski v. The Queen, supra.  In that case the authorization took the following form:

 

[TRANSLATION]  3.  The persons whose communications may be intercepted are:

 

(a)William MURPHY (building caretaker); and

 

(b)certain other persons whose identity is at present unknown, but who have acted, are acting or may act in concert or in collusion with a person named in subparagraph (a) or with a person found in one of the places named in paragraph 4, and whose private communications may be intercepted by means of authorization.

 

4.  The places or localities where the private communications of the persons mentioned on paragraph 3 may be intercepted are:

 

(a)620 St-Jacques West, Montréal, Que. (underground garage); and/or

 

(b)any other place or locality, stationary or mobile, where the persons named in paragraph 3 could be found, but the nature and location of which are at present impossible to specify.

 

Chouinard J. said of s. 178.13(2) (c), at p. 444:

 

    It is apparent from para. (c) above, and the courts have consistently held, that an authorization must contain limitations on the persons whose communications may be intercepted, the place where they may be intercepted and the method of interception.

 

At pages 445-46, he concluded that when paragraphs 3(b) and 4(b) of the authorization were read together, the authorization on its face would permit the interception of anyone's communication anywhere.  He therefore held the authorization to be unlawful.  However, he took the view that if paragraph 4(b) were excluded, the authorization would be valid.  Therefore, interceptions authorized by paragraph 4(b) would be unlawful but, because the offending paragraph had not been used and all interceptions were made at the address specified in the authorization, he concluded that the evidence so obtained was admissible and dismissed the appeal.

 

    In this case it was argued by the appellants that paragraph (c) in each of the three authorizations before the Court is unlawful and that evidence obtained thereunder is inadmissible.  The Crown argued that the "resort to" provisions complied with Part IV.1 of the Criminal Code .  Reliance was placed on R. v. LeClerc, supra, in which an attack on the validity of "resort to" clause was rejected, and R. v. McLeod, [1988] N.W.T.R. 103 (C.A.), at p. 107, per Stratton J.A.  It was also argued that Grabowski, supra, was distinguishable, turning on the particular provisions of the authorization in issue in that case, as were the other cases cited by the appellants.  It was argued as well that Part IV.1 of the Criminal Code , having been modelled on the American Title III but departing from it on this point, demonstrates that Parliament did not attach the same importance to a fixed location for interception as had the Congress of the United States.  Thus, it is argued, Parliament did not intend a prohibition of "resort to" clauses.

   

    Unlike the authorization in Grabowski, the authorizations at issue do not permit the interception of communications of anyone anywhere within the province.  It is limited in location to places resorted to by certain named individuals.  A basket clause which would permit interception of any persons unknown to the police at the time of the application for the authorization and which would permit the police to intercept such communications at any place provided that there are reasonable and probable grounds to believe that the interception may assist in the investigation has been held to be invalid.  The basis for that decision is that such a clause vests in the police the discretion to intercept the private communications of any or all persons if there are reasonable or probable grounds to believe that the interceptions would assist in the investigations, which is the function given by statute to the issuing judge: see R. v. Paterson, Ackworth and Kovach (1985), 18 C.C.C. (3d) 137 (Ont. C.A.), aff'd [1987] 2 S.C.R. 291.  Neither paragraph (c) nor (d) of the authorizations in this case is in that category.  Each contains limitations.  Paragraph (c) is limited to named persons.  Paragraph (d) is limited to persons who resort to or use named premises or communicate with named persons.  As to place, each is limited to places resorted to by five named individuals.  It cannot therefore be said to delegate to the police the determination as to whether the interceptions would assist in the investigation.  That was determined by the authorizing judge on the basis of the connection to the targets detailed above.

 

    Second, there is the argument that the legislation demanded specific reference to the pay telephones.  The appellants did not abandon this claim in oral argument, but stressed instead the constitutional aspects of the issue.  They did, however, maintain this submission as a fall-back argument.  It is, therefore, appropriate to deal with it here. 

 

    In my view, the submission that Part IV.1 required that the pay telephones be mentioned on the face of the authorizations must fail, under the authority of R. v. Papalia, [1988] 2 S.C.R. 137.  In that case, the interceptions at issue were made in automobiles.  These locations were not specifically included in the locations described on the face of the authorizations, even though the police knew at the time of application that they intended to make these interceptions.  The relevant parts of the authorization providing that the private communications of the appellants could be intercepted read as follows:

 

4. . . . 

 

(a)By the use of audio transmitter and receiver, an electromagnetic, acoustic device sometimes referred to as a microphone and amplifier installed at or near the addresses described in paragraph five (5) of the Authorization, or at or near such further other locations, both stationary or mobile, for which there are reasonable and probable grounds to believe such locations may be used by any person or persons described in paragraph three (3) of this Authorization for the purpose of carrying out private communications for the purposes as specified in paragraph one (1) of this Authorization. . . . 

 

Clause 5 specified various addresses, and provided that interceptions could be made:

 

5. . . . 

 

(n) . . . at or near such further other locations for which there are reasonable and probable grounds to believe that the persons described in paragraph three (3) of this Authorization may carry on private communications in respect of the offences as set out in paragraph one (1) of this Authorization.

 

McIntyre J. first held that an automobile is a "place" within the meaning of s. 178.13(2) (c) of the Criminal Code .  He then held (at pp. 145-46):

 

Section 178.13(2) (c) requires that the authorization generally describe the locations or places of interception.  This was done in the case at bar and paragraphs 4 and 5, reproduced above, give an adequate general description of the places of interception.

 

                                                                           ...

 

The cars of the two appellants who were specifically named in the authorizations were covered, in my view, by clauses 4 and 5 of the authorizations, and the interceptions were, therefore, lawful under Part IV.1 of the Code and admissible in evidence.

 

    In view of the fact that the investigators knew that the named persons intended to resort to pay telephones, a more specific description could have been given.  In my view, however, subject to its effect on s. 8  of the Charter , this in itself does not render the authorizations unlawful.  The section does not state that it must be the most specific description.  It requires only a general description.

 

    On the basis of the foregoing, neither of the three authorizations is unlawful within the meaning of s. 178.16.

 

Minimization and Section 8 

 

    I therefore turn to the constitutional issues raised with respect to minimization.  As a preliminary matter I note that recent decisions of this Court leave no doubt that electronic surveillance constitutes a "search or seizure" within the meaning of s. 8  of the Charter :  R. v. Duarte, [1990] 1 S.C.R. 30, R. v. Wiggins, [1990] 1 S.C.R. 62.

 

    Analysis of the current law in Canada with respect to minimization, Part IV.1 of the Criminal Code , and s. 8  of the Charter , begins with the decision of the Ontario Court of Appeal in Finlay and Grellette, supra.  As noted above, it appears that in the United States the minimization requirement in {SS} 2518(5) of Title III is a constitutional prerequisite to the validity of court-ordered electronic surveillance.  One argument raised by the appellants in Finlay and Grellette, supra, was that the absence of a minimization requirement in the Canadian legislation renders it unconstitutional.  Martin J.A., while recognizing the absence of any counterpart to {SS} 2518(5), noted that s. 178(13)(1.1) and (1.2) of Part IV.1 provide that where an authorization is granted in relation to the interception of private communications at the office or residence of a solicitor, or at any place ordinarily used by a solicitor and by other solicitors, the judge shall include such terms and conditions as he deems advisable to protect privileged communications between solicitors and clients.  He noted too that s. 178.13(2) (d) provides that an authorization shall contain terms and conditions which the judge considers advisable in the public interest.  The authorization in that case provided that if private communications were to be intercepted at a public pay telephone, such interception was to be accompanied by visual surveillance to ensure that the interception is made only while the telephone is used by a person named in the order.  Also in that case the police terminated the wiretap following the appellants' arrest, even though the authorization did not expire until more than a month afterwards. 

 

    Martin J.A. concluded (at p. 75):

 

    I find myself in accord with the view expressed by Professor Stanley A. Cohen [Invasion of Privacy: Police and Electronic Surveillance in Canada (1983)], at p. 174:

 

    Because the minimization requirement precludes open-ended, "indiscriminate" interception of private communications, resort to the use of automatic, voice-activated taping systems unattended by on-site monitoring personnel is effectively foreclosed.  This naturally has the effect of substantially increasing the expense of electronic surveillance investigations.  It is therefore submitted that a general requirement of minimization for all such investigations is too onerous a burden and is one that should not be imposed upon Canadian law enforcement officials.  Judges should not, however, be precluded from inserting minimization clauses into authorization orders, where, in their discretion, circumstances so warrant.  [Emphasis added by Martin J.A.]

 

    I am of the view that, having regard to the provisions of s. 178.13(2) (d), which may and should be resorted to by the authorizing judge to impose a minimization requirement when the circumstances of the interception warrant the imposing of such a term, the absence of an express minimization requirement such as that contained in Title III does not render Part IV.1 unconstitutional.

 

    The parties in the case at bar do not, as I understand them, dispute Martin J.A.'s finding that the absence of a minimization requirement does not render Part IV.1 unconstitutional as a whole.  However, Martin J.A. adds in Finlay and Grellette, supra, at p. 78:

 

    It is scarcely necessary to add that although the legislative scheme of Part IV.1 is constitutional, the granting of a particular authorization in the circumstances may be unreasonable and hence infringe s. 8 .

 

    The issue, then, is whether in the present circumstances, the scope of authorized surveillance or the absence of minimizing conditions on the face of any of the authorizations render them unreasonable and hence unconstitutional.  The appellants argue that both the "resort to" clause, and the absence of minimizing conditions with respect to the interception of communications at public pay telephones are sufficient to render any interceptions so authorized unconstitutional under s. 8  of the Charter , which is sufficient to render any evidence thereby obtained inadmissible pursuant to s. 24(2) .

 

    The appellants say that changes in location during an investigation should be dealt with under s. 178.15(2), which deals with the power to authorize electronic surveillance in emergency situations, and should not be written right into the original authorization itself.  The argument with respect to the "resort to" clause is that it violates the s. 8  requirement of prior judicial authorization demanded under Hunter v. Southam Inc., [1984] 2 S.C.R. 145, by delegating the function of authorization from a judge to the officers conducting the surveillance.  In that case Dickson J. (as he then was) wrote (at p. 160):

 

That purpose [of s. 8 ] is, as I have said, to protect individuals from unjustified state intrusions upon their privacy.  That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place.  This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation.  [Emphasis in original.]

 

    In my view, the "resort to" clause per se does not offend this principle.  To determine this issue one must first determine exactly what has been authorized by the court order.  The answer to the appellants' argument lies, in my view, with the answer to the fourth issue on appeal, which I repeat for ease of reference.

 

[Can] an intercepted private communication in itself ... afford evidence that a person "resorted to" a place without the condition precedent of "resorting to" being established by extrinsic evidence"[?]

 

In my view, the proper interpretation of the "resort to" clause is that the police can only intercept communications of the target at a place to which, based on evidence, they believe on reasonable and probable grounds the target has resorted or will resort.  To this extent there is prior authorization.  Before dealing with whether the Hunter v. Southam requirement of prior authorization is met, I canvass the issue of what evidence is required to prove "resorting to".

 

    The decision of the Court of Appeal in this case was that the intercepted communication could itself provide evidence that a person "resorted to" a particular place, bringing that interception into compliance with the authorization.  This ruling is in direct conflict with the judgment of the Ontario Court of Appeal in R. v. Niles, supra.  Dubin J.A. (as he then was), in holding that the evidence was inadmissible, wrote (at p. 514):

 

Before the evidence of the conversation was admitted into evidence, there was no evidence before the trial Judge that [the location] was a place resorted to or used by the appellant.

 

                                                                          . . . 

 

There was no evidence that at the time that the monitoring of this telephone was commenced, such monitoring was being carried out in the manner provided for in the authorization, and therefore there was no evidence that it was lawful.  The condition precedent to the admissibility of the telephone conversation not having been shown, it follows that the intercepted communication was inadmissible.  Such communication could not in turn be used, as was urged by Crown counsel, to supply the evidence first required to be established before the communication became admissible.  [Emphasis added.]

 

I agree with the approach taken by Dubin J.A.  Identification of the targeted person's voice cannot alone be sufficient to comply with the authorization.  To hold otherwise in this case would encourage the police to monitor communications indiscriminately, with the foreknowledge that any relevant communications that happen to turn up would be found, in a sense retroactively, to have been justified.  It is exactly that sort of indiscriminate surveillance that Part IV.1 of the Criminal Code  was designed to prevent.

 

    Of course, this does not end the inquiry in the case at bar.  One must then ask whether there is other evidence that the target person "resorted to" a particular location.  The level of evidence required, in my view, is that which would lead the police to believe on reasonable and probable grounds that a person will resort to a particular location.  The Crown submits, and I agree, that "resorting to" can be established through a previously lawfully authorized interception.  For instance, if a target says that he or she is going to use a particular telephone, this would provide reasonable and probable grounds to believe that a person "resorted to" a particular location.  The evidence need not in my opinion take a particular form, e.g. visual surveillance, so long as it is probative of the fact in issue.  In the absence of evidence to the contrary, the trial judge would be justified in concluding that the authorization had been complied with.  The contents of the intercepted communication would simply confirm that conclusion.  If, of course, the target did not resort in fact, then the issue would not arise because the evidence would not be tendered.

 

    The case at bar provides examples of situations in which the police obviously proceeded with sufficient evidence of "resorting to" and a situation equally obviously without sufficient evidence.  There is evidence that the targets made use of public telephones and employed a code to inform one another of where they could be reached.  In several cases the police placed taps on telephones because the numbers of the telephones were referred to in other calls.  In my view this is sufficient evidence to act upon, and amounts to reasonable and probable grounds that the target will resort to that place.  This is subject to its being established that the private communication relied on is itself the product of a lawful interception.  In another situation, however, the police placed taps on four public telephones because of their proximity to where one of the targets was staying.  In my view, this is insufficient evidence to act upon, and amounts to little more than indiscriminate monitoring based on a hunch.

 

    I now return to the issue of whether this is sufficient to meet the constitutional requirement of prior authorization in accordance with Hunter v. Southam, supra.  The authorizations permit surveillance at places resorted to by certain persons.  But it is argued that this usurps the function of the issuing judge who is required by statute and by s. 8  to decide whether reasonable and probable grounds exist for believing that evidence will be obtained as to the commission of an offence.  In my view, that key determination by the authorizing judge can be made with respect to certain classes of places.  Section 178.13  permits this determination to be made with respect to places that can only be described in general terms.  To require a determination by the police officers that they have reasonable and probable grounds for believing that the place complies with the general description before an authorization is acted upon is an additional safeguard to the dictates of the section.  This and the fact that the section is not attacked is conclusive against the contention that the "resort to" clause is, per se, contrary to the requirements of s. 8  of the Charter  as laid down in Hunter v. Southam, supra

 

    Hunter v. Southam concerned a search warrant, whereas this case concerns electronic interception.  A physical search is a single event, which admits of prior authorization in its entirety.  A wiretap on a telephone "resorted to" by a target is not analogous to the police taking it upon themselves to undertake a second and different search under a search warrant.  It is more closely analogous to the "plain view" doctrine, whereby seizure of evidence in plain view under the scope of the search as authorized but not itself authorized is justified.  In a related manner, the appellants' submission appears to me to ignore Dickson J.'s reasoning in Hunter v. Southam where he adopts with respect to s. 8  the opinion of Stewart J. of the United States Supreme Court in Katz v. United States, 389 U.S. 347 (1967), at p. 351, that "the Fourth Amendment protects people, not places".  From the perspective of the rights of a person who is a target of the authorization, if it is reasonable to intercept the communication of a person at a specified address, it seems equally reasonable to intercept that person's communication at another place to which he resorts.  Subject to what will be said about residences and pay telephones, the nature of the invasion of that person's privacy does not change with that person's location.  It is the issuing judge's function to determine whether there are grounds sufficient to justify this invasion.  If the judge is so satisfied, it is no invalid shirking or delegation of his or her function to permit the police to conduct this surveillance at places for which there is sufficient evidence to believe the target resorts to.

 

    The appellants' other submission is that the Charter  demands that the public telephones which are to be tapped in the course of the investigation must be specifically mentioned on the face of subsequent authorizations.  In my view, this submission raises different concerns than the "resort to" clause discussed above.  While the nature of the invasion of the target's privacy is constant, what does change with changes in location is the possible effect of the authorization on the rights of third parties.  The Court of Appeal held in the case at bar that the appellants have no standing to raise the rights of third parties which might be affected by interception of communications at public pay telephones.  This holding was followed in Mead and Ford v. R. (No. 2) (1988), 72 Nfld. & P.E.I.R. 33 (P.E.I.S.C.T.D.).  In my view, the extent of invasion into the privacy of these third parties is constitutionally relevant to the issue of whether there has been an "unreasonable" search or seizure.  To hold otherwise would be to ignore the purpose of s. 8  of the Charter  which is to restrain invasion of privacy within reasonable limits.  A potentially massive invasion of the privacy of persons not involved in the activity being investigated cannot be ignored simply because it is not brought to the attention of the court by one of those persons.  Since those persons are unlikely to know of the invasion of their privacy, such invasions would escape scrutiny, and s. 8  would not fulfill its purpose.

 

    In any authorization there is the possibility of invasion of privacy of innocent third parties.  For instance a wiretap placed on the home telephone of a target will record communications by other members of the household.  This is an unfortunate cost of electronic surveillance.  But it is one which Parliament has obviously judged is justified in appropriate circumstances in the investigation of serious crime.

 

    In my view, in some cases the possibility of invasion of privacy of innocent persons may become so great that it requires explicit recognition along with the interests of the investigation of crime.  A "resort to" clause creates just this possibility if among the places resorted to are telephones frequently used by the general public or other such places.  I do not mean to suggest that there should be a constitutional prohibition of intercepting communications at places frequented by the public; in that case drug importing conspiracies could virtually insulate themselves from perhaps the only effective investigative technique against them merely by using public places to conduct their business.

 

    In this case, public telephones were involved and the discussion concentrates on them.  This should not be taken, however, as a finding that public telephones are to be distinguished from other places frequented by the public.  The police knew prior to seeking the first authorization that the persons named in the authorization resorted to public pay telephones.  The affidavit contained in the sealed packet relating to the first authorization showed that one of the suspects was using a pay telephone "situated at the Cultus Lake Plaza, Cultus Lake, Province of British Columbia."  Furthermore, the affidavit indicates that this was one of the types of private communications intended to be intercepted.  This fact was known to the authorizing judge.  The other packets were not opened but it is apparent from the record that the police were fully aware that the targets made extensive use of public pay telephones.  Whether or not this was disclosed to the authorizing judge on the second and third authorizations is not in the record.  There is nothing in the authorizations to indicate that public pay telephones were to be wiretapped nor that the slightest consideration was given to protection of the public interest under s. 178.13(2) (d). 

 

    On these facts, given the breadth of the authorizations, hundreds of private conversations may have been intercepted when not one target was involved.  In Finlay and Grellette, supra, the authorization required physical surveillance of the public pay telephone to ensure that conversations were intercepted only when a target was using the telephone at the time.  There is no such provision here, nor any other such limitation.  At minimum, I would think that such an authorization would provide that conversations at a public telephone not be intercepted unless there were reasonable and probable grounds for believing that a target was using the telephone at the time that the listening device was activated.  The police cannot simply install a listening device and leave it running indiscriminately in the hope that a target may come along.  In some instances, that is what occurred here. 

 

    Is what occurred an "unreasonable search or seizure"?  In R. v. Collins, [1987] 1 S.C.R. 265, Lamer J. (as he then was) stated (at. p. 278):

 

    A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.

 

    I have not found the "resort to" clause to be unlawful under the relevant provisions of the Code.  To that extent, the authorizations are valid.  While failure to impose conditions under s. 178.13(2) (d) is not unlawful because the power is wholly discretionary, failure to do so may in certain circumstances be unreasonable.  This is one of those cases.  In my view, given the extent of the invasion of privacy authorized in this case, a total absence of any protection for the public created a potential for the carrying out of searches and seizures that were unreasonable.

 

    Interceptions which were made pursuant to these authorizations, which were simply fishing expeditions and not based on reasonable and probable grounds for believing the target would be utilizing the pay telephones at the time, were, in my opinion, unreasonable.  In most instances, it would be preferable to have actual physical surveillance of the public telephone to ensure that it is being used by the target.  This is said to be normal police practice.  I am, however, in agreement with Martin J.A. and Professor Stanley A. Cohen that to make this an absolute requirement would impose too heavy a burden on Canadian law enforcement officials.

 

    I do not consider that s. 1  of the Charter  has any application.  The law relating to this matter is s. 178.13(2) (d).  It is not itself under attack, and in any event is not unreasonable.  What is unreasonable is the manner of its application by the authorities in this case.  Their conduct does not constitute a law to which s. 1  can apply.  Accordingly, since what I have said applies to all three authorizations, any evidence obtained as a result of interceptions at pay telephones in the absence of reasonable and probable grounds for believing that a target was using the telephone was obtained in contravention of s. 8 

 

Renewals

 

    This issue is stated as follows:

 

[Is it] permissible to obtain fresh authorizations instead of renewals with respect to the same persons and offences as stated in the preceding authorizations [?]

 

    The case at bar involved three "fresh" authorizations.  There were no applications for renewals.  The appellants argue that where an authorization has not expired, Part IV.1 requires that an application for renewal be made if continued surveillance is contemplated.  It is said that the requirements to procure a renewal are more onerous than those required for an authorization, and the Crown should not be able to avoid such requirements by applying for a new authorization.  The Crown, on the other hand, points out that parties have been added to each subsequent authorization and that some locations for interception have been changed.  Therefore a new authorization was required in each case.

 

    In R. v. Badovinac (1977), 34 C.C.C. (2d) 65, at p. 70, the Ontario Court of Appeal held that "[t]here is no power in the statute to extend, modify, add to or otherwise deal with any feature of the authorization beyond simply extending the period of time within which it is effective".  On this reasoning, new applications rather than renewals were properly sought in the case at bar because in addition to extending the period of time of the surveillance, each new authorization expanded the investigation to include different targets for surveillance.

 

    In this case, the appellants submit that the proper approach should have been for a renewal to have been sought with respect to those persons common between the different authorizations, and a new authorization sought with respect to persons added to the investigation.  They cite as authority R. v. Pleich (1980), 16 C.R. (3d) 194 (Ont. C.A.).  In that case Morden J.A. held, after a careful reading of the statutory provisions, that Parliament must be taken to have intended separate procedures for procuring an authorization and for the renewal of an authorization.  It followed that when a renewal could be made, i.e. during the currency of an authorization, the correct procedure would be to seek a renewal.  Morden J.A. also wrote (at p. 213):

 

    Before concluding this part of my reasons, I would note that it is not relevant that two names in addition to that of the appellant were included in the second authorization.  While this would not have been valid with respect to the added persons if done by way of renewal rather than authorization (R. v. Badovinac, supra), this circumstance would not have precluded a renewal being given with respect to the appellant and new authorizations respecting the two new persons.

 

    The appellants also rely on R. v. Nicolucci and Papier (1985), 22 C.C.C. (3d) 207 (Que. Sup. Ct.) in which Boilard J. held that a new authorization was valid only in respect of new locations set forth in it but was invalid in respect of locations mentioned in a previous authorization "because a renewal of the previous authorization was the only way to keep it alive" (p. 216).  (He rejected, however, an argument that the new locations should have been subject to a renewal because they were covered by the basket clause in the original authorization.)  I note that since the case at bar was argued, the Quebec Court of Appeal held in R. v. Nicolucci (1989), 53 C.C.C. (3d) 546, at p. 550, that:

 

... there is nothing unlawful in seeking a fresh authorization rather than a renewal where the proposed interception of private communications targets new locations not contemplated under the original authorization....

 

Some degree of overlapping does not make a fresh authorization unlawful or inappropriate.

 

    The Crown points out that, if the appellants' submission is accepted, there is a possibility of a multiplicity of different forms of authorization in respect of a single investigation.  In itself this is not a bad thing, for it is possible to combine in a single order both a renewal and a fresh authorization, as recognized in R. v. Vrany, Zikan and Dvorak (1979), 46 C.C.C. (2d) 14 (Ont. C.A.).  However, there would be nothing to prevent the applications for new authorization and the renewal to be made before different judges.  In my view, it is preferable that one judge have all the facts of the whole investigation before him or her than that the application be fragmented.  For these reasons, Morden J.A. (who wrote the decision in Pleich) in R. v. Dubois (1986), 27 C.C.C. (3d) 325 (Ont. C.A.), at p. 336, in which a new authorization was issued which expanded the investigation by adding new offences but was obtained during the currency of an existing authorization, decided that it was neither necessary to seek a renewal, nor to bifurcate the application, nor to seek separate court orders for authorization and renewal.  His words were cited by the Court of Appeal in the case at bar and bear repeating in part (at p. 335):

 

    The appellant also relies upon the ruling of Mr. Justice Boilard of the Superior Court of Quebec in R. v. Nicolucci and Papier (1985), 22 C.C.C. (3d) 207  . . . 

 

    With respect, I think that this is an unduly rigid approach to the legislation, at least on the facts of the case before us, and one that is not necessary to afford reasonable protection to the object of the surveillance.  As was noted in Pleich at p. 31:

 

 . . . on balance, the requirements of s. 178.13(1)  and (2)  (which relate to original authorizations) are more onerous than those of s. 178.13(3) and (4) (which relate to renewals).  The substantive standard which is imposed by s. 178.13(4) for renewals is clearly less onerous than those of s. 178.13(1) relating to original applications.

 

Dubois was also followed by the Quebec Court of Appeal in Nicolucci, supra, which wrote at p. 551, "I do not think the form of the application was of critical importance in this case where the existence of the prior authorization was in fact disclosed, where new locations were targeted and where no prejudice could have occurred".

 

    Although the appellants at bar argue strenuously that the requirements for a renewal are in fact more stringent than for an original authorization, I find myself in agreement with Morden J.A.  I will not repeat his able analysis of the provisions, although I would note that the requirements are onerous with respect either to an original application or a renewal and, in the end, one's assessment of which is more onerous need not be a consideration of the first magnitude in arriving at the outcome of the case.

 

    The following two propositions can be gleaned from the foregoing discussion.  Where an authorization is in existence and where it is desired to extend its term and leave its other provisions unaltered, an application for its renewal is the proper step for the authorities to take.  Where the authorization has expired or where it is sought to extend the scope of surveillance, the proper course is to seek a new authorization.  In the case at bar, the second and third authorizations widened the scope of the first authorization, between them adding nine new targets for interception.  It was therefore proper for the Crown to apply for new authorizations.  I would reject this ground of appeal.

 

    I therefore turn to the final issue.

 

Dwellings -- Surreptitious Entry

 

    [Is] Section 8 of the ... Charter  ... violated by [a] surreptitious entry into residential premises to install audio intercepts where an authorization ... is silent as to express judicial authorization and that such entry and installation is lawful [?]

 

    Pre-Charter  authorities hold that under the legislation an authorization of electronic surveillance which is silent as to surreptitious entry to plant listening devices impliedly confers such power on the authorities: Lyons and the Wiretap Reference, supra.

 

    In Lyons, the police had entered the residence of one of the appellants to install a room monitoring device.  Estey J., after carefully reviewing the legislation and the sorts of intercepting devices it contemplates, concluded that Parliament could not have authorized the use of certain sorts of devices which involve some sort of entry in the sense of a trespass, without granting the power to authorize such entry.  In that particular case he held that the authorization was sufficiently broad that it impliedly authorized surreptitious entry to put in place a listening device.  In the Wiretap Reference, which was released concurrently with Lyons, Estey J. followed this decision.  He held in response to the stated questions: (i) that an authorization under Part IV.1 authorizes by necessary implication any person acting under the authorization to enter any place at which private communications are to be intercepted to install or to service a permitted listening device ‑- provided such entry is required to implement the particular authorization -- unless the authorization includes limitations on or prohibitions of such entry, and (ii) that an issuing judge has authority explicitly to authorize entry to any place at which private communications are proposed to be intercepted -- provided that such entry is required to implement the particular authorization.

 

    In the course of his reasons in Lyons, Estey J. recognized the special place which a dwelling occupies when considering invasion of privacy.  He states (at p. 657):

 

    It is generally an acceptable starting point in examining legislation involving the invasion of individual rights to restate Semayne's Case (1604), 5 Co. Rep. 91 a.  The invasion here is of privacy and this concerns both the personal aspects and the property aspects of privacy.

 

He found, however, that even this bastion of the privacy interest must yield where the public interest demands.  He concluded that the importance of the legislation in Part IV.1 of the Criminal Code  in "bringing under positive control" the practice of eavesdropping warranted the interpretation which he reached.  In coming to this conclusion, he relied heavily on the power of the authorizing judge under s. 178.13(2) (d) to impose conditions to safeguard the public's interest in privacy within the sanctuary of a private dwelling.  He stated (at p. 695):

 

The Code goes on to require the order of authorization to specify a manner of interception as was done in the orders here.  I believe that a court, in issuing an authorization under Part IV.1, should, in the exercise of its supervisory function, designate the type of device or devices which may be employed and the procedures and conditions which, in the circumstances revealed in the application, are necessary or advisable in the public interest.  The absence of such detail does not go to the validity of the order because in many circumstances only the general clauses of the subsections themselves will be appropriate.  My observation is intended to give emphasis to the importance of the judicial role in the program of privacy regulation as prescribed by Parliament in these provisions.  [Emphasis added.]

 

    The question in this case, which was not before the Court in Lyons, is whether surreptitious entry into residential premises is reasonable having regard to the following.

 

    The authorizations under review apparently make no mention of 8 of 11 of the residential premises which were entered surreptitiously.  We are not aware whether they are described in the material before the judge.  They may simply be embraced within the "resort to" clause.  With respect to any residences named specifically, the authorizing judge would be obliged to consider what conditions, if any, are required in the public interest; for example, if the dwelling is not owned by a target whether consent of the owner or occupant is a feasible alternative.  In order to ensure that the authorizing judge has at least considered these matters, the authorization should at minimum refer specifically to each place that is a private residence and designate the type or types of devices that may be employed.  In the absence of express mention of a private residence in the authorization, and hence this minimal protection, the safeguards provided by the judicial role envisaged by Estey J. are illusory.  In these circumstances, the surreptitious entry of a private dwelling is, in my view, unreasonable and contrary to s. 8  of the Charter .  Accordingly, any interception which has occurred in this case in contravention of the foregoing constitutes an unreasonable search and seizure.

 

Remedy and Disposition

 

    With the trial judge's finding that the intercepted communications were inadmissible, the Crown tendered no further evidence and the trial judge directed the jury to acquit the accused.  The Court of Appeal allowed the appeal and since all the evidence was held to be admissible, a new trial was ordered.  I must consider the effect of the determination which I have made on the admissibility of the evidence and whether a new trial is still warranted.

 

    The admissibility of evidence in the form of intercepted communications is governed by two legal regimes.  First, s. 178.16(1)  of the Criminal Code  provides:

 

    178.16  (1)  A private communication that has been intercepted is inadmissible as evidence against the originator of the communication or the person intended by the originator to receive it unless

 

    (a) the interception was lawfully made; or

 

(b) the originator thereof or the person intended by the originator to receive it has expressly consented to the admission thereof;

 

but evidence obtained directly or indirectly as a result of information acquired by interception of a private communication is not inadmissible by reason only that the private communication is itself inadmissible as evidence.

 

Second, s. 24(2)  of the Charter  reads:

 

    24.(1) . . .

 

    (2)  Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

 

    In this context it is extremely important to carefully distinguish between findings of "unlawfulness," in the sense of non-compliance with the Criminal Code , and findings of "unreasonableness" in the sense of non-compliance with s. 8  of the Charter .  Unreasonableness is obviously the wider of the two categories; all unlawful interceptions will be unreasonable but not all unreasonable interceptions will be unlawful.  A search can be authorized by a valid law, but nonetheless offend s. 8 .

 

    While the distinction between unlawfulness and unreasonableness may appear unduly semantic or conceptual, it is a necessary one to make.  In the context of wiretaps, the subset of unreasonable interceptions which are unlawful in the sense of not being authorized by the provisions of Part IV.1 of the Criminal Code  are subject to the rule of absolute exclusion in s. 178.16(1) .  Those interceptions which are within the terms of the Criminal Code  but are nonetheless in violation of s. 8  of the Charter  are inadmissible if their admission would bring the administration of justice into disrepute. 

 

    To summarize, I have reached the following conclusions in this case.

 

(i)  Interceptions authorized by paragraph (c) are lawful, provided that the police acted upon sufficient evidence that a person "resorted to" a place.  Interceptions at places for which such evidence is absent are unlawful.

 

(ii)  Interceptions obtained at public pay telephones in the absence of reasonable and probable grounds for believing that the telephone was in use by a target at the time the listening device was activated were obtained contrary to s. 8  of the Charter .

 

(iii)  Interceptions obtained by means of surreptitious entry into residential premises which were not specifically mentioned on the face of the authorization were obtained contrary to s. 8  of the Charter .

 

Thus, the interceptions characterized as unlawful in (i) are subject to the absolute exclusionary rule of s. 178.16(1) , and are therefore inadmissible.  Interceptions characterized as unreasonable in (ii) and (iii) are not properly characterized as unlawful.  In the latter case s. 178.13(2) (d) permits an issuing judge to impose limiting conditions but does not mandate them; it is only the additional test of unreasonableness under the Charter  which brings their admissibility into question.  Therefore one must inquire whether their admission in these proceedings would bring the administration of justice into disrepute.   

    Many factors enter into the determination of whether admission of the evidence would bring the administration of justice into disrepute, for which the onus is upon the person seeking exclusion.  Lamer J. sets out the following factors in R. v. Collins, supra, at pp. 283-84:

 

--what kind of evidence was obtained?

 

--what Charter  right was infringed?

 

--was the Charter  violation serious or was it of a merely technical nature?

 

--was it deliberate, wilful or flagrant, or was it inadvertent or committed in good faith?

 

--did it occur in circumstances of urgency or necessity?

 

--were there other investigatory techniques available?

 

--would the evidence have been obtained in any event?

 

--is the offence serious?

 

--is the evidence essential to substantiate the charge?

 

--are other remedies available?

 

    This Court, in R. v. Duarte, supra, has recently held that "participant surveillance" carried out by the state is an unreasonable search or seizure within the meaning of s. 8  of the Charter  in the absence of prior judicial  authorization.  Under the Criminal Code , however, gathering evidence in such a manner is not unlawful (by virtue of s. 178.11(2) (a)) and evidence gathered in such a manner is not inadmissible (by virtue of s. 178.16(1) (b)).  La Forest J. therefore turned to the question of admissibility pursuant to s. 24(2)  (at pp. 59-60):

 

But what strikes one here is that the breach was in no way deliberate, wilful or flagrant.  The police officers acted entirely in good faith.  They were acting in accordance with what they had good reason to believe was the law -- as it had been for many years before the advent of the Charter . . . . In short, the Charter  breach stemmed from an entirely reasonable misunderstanding of the law by the police officers who would otherwise have obtained the necessary evidence to convict the accused in any event.  Under these circumstances, I hold that the appellant has not established that the admission of the evidence would bring the administration of justice into disrepute.

 

    I find his comments applicable to the case at bar, except to observe that there were no other practical investigative means by which the evidence could have been obtained (which is indeed a prerequisite for issuing an authorization by reason of s. 178.13(1) (b)).  The pre-Charter  authority of Papalia, supra, and Lyons, supra, would have placed no obligation on the police to disclose the installation of interception capability at pay telephones, nor would it have placed limits on the right of surreptitious entry.  The fact that the telephone number of some of the persons named in the first authorization was for a pay telephone was before the issuing judge.  The police acted in accordance with authorizations which I have found comply with the provisions of the Criminal Code .  I would hold that the admission of evidence gathered in these circumstances would not bring the administration of justice into disrepute.

 

    I have concluded that all of the evidence is admissible with the exception of evidence obtained by means of interception under paragraph (c) where no reasonable and probable grounds existed for concluding that a place was resorted to.  With respect to the latter category, the Crown is entitled to adduce evidence to seek to establish that the evidence was lawfully obtained and, therefore, is admissible.  In these circumstances there must be a new trial.  The appeal is therefore dismissed.

 

//Wilson J.//

 

    The following are the reasons delivered by

 

    WILSON J. (dissenting) -- I have had the benefit of the reasons of my colleagues Justice La Forest and Justice Sopinka and, on the matters dealt with by La Forest J. and not specifically addressed in these reasons, I agree with him.  I also agree with his proposed disposition of the appeal.

 

    The issue I am addressing is the proper interpretation of s. 178.13(2) of the Criminal Code, R.S.C. 1970, c. C‑34.

 

    My disagreement with my colleague Sopinka J. stems from my view that the tapping of public pay phones gives rise per se to massive violations of the rights of third parties to be free from unreasonable searches as guaranteed by s. 8  of the Canadian Charter of Rights and Freedoms .  Accordingly, I have come to the conclusion that an order made pursuant to Part IV.1 of the Criminal Code  which is intended by the authorizing judge to authorize the tapping of such pay phones, must do so expressly and not by implication under a general "resort to" clause as was done here.

 

    I base my conclusion both on the principles enunciated by this Court in Wilson v. The Queen, [1983] 2 S.C.R. 594, and on what I believe to be the proper interpretation of s. 178.13(2)  of the Criminal Code  in light of our prevailing Charter  values. Those values, I believe, require that any violation of the rights of third parties to be free from unreasonable searches should be expressly authorized and not arise by implication or by the police exercising a discretion which can only be appropriately exercised by the authorizing judge.

 

    In Wilson, supra, this Court upheld the fundamental rule which prohibits a collateral attack on an order of a court which has not been set aside or varied on appeal. The rule was enunciated in the context of Part IV.1 of the Criminal Code  and its effect is that a trial judge qua trial judge cannot go behind a wiretap authorization since such a procedure would involve a collateral attack on it.  The practical result of Wilson is that the sealed packet, which forms the basis of the authorization and discloses what the authorizing judge was told on the application, remains sealed and unavailable for appellate review.  In those circumstances it is virtually impossible to determine what general wording in an authorization was intended by the authorizing judge to cover.  This can only be discerned, where general wording is used, by an examination of the material the authorizing judge had before him or her on the application.

 

    This procedural limitation has a number of important ramifications.  As my colleague La Forest J. stresses throughout his reasons the result of Hunter v. Southam Inc., [1984] 2 S.C.R. 145, is that in most cases a search is only constitutionally valid if properly authorized by a judicial or other independent authority.  This in turn means that in order for the authorizing judge to act judicially and exercise the discretion which only he can exercise, he must have before him all the information upon which the police base their request for the authorization.

 

    As a practical consequence of the principle in Hunter and the procedural limitations in Wilson it becomes essential, in my view, for the authorizing judge to expressly state in the authorization precisely what he intends to permit the police to do.  When he does so, he shows on the face of the authorization that he has turned his mind to the extent of the invasion of privacy sought by the police and has considered whether in the particular circumstances before him such an invasion is warranted.  Unless the issuing authority does this, it cannot be known under the Wilson regime whether the authorizing judge exercised a judicial discretion in granting the authorization or whether he intended or did not intend the "resort to" clause to cover the tapping of public pay phones.

 

    I am of the view that the proper interpretation of not only  s. 178.13(2) (c) but the whole of Part IV.1 of the Criminal Code  supports this view.  I start from the premise that the Criminal Code , like all legislation, ought to be interpreted in light of the Charter  and the values it enshrines. Such an interpretive principle is, in my view, entirely appropriate given the supremacy of s. 52(1)  of the Constitution Act, 1982 .  Moreover, I would also note that the discretion allowed the authorizing judge must itself be read to conform with the Charter : see Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038.

 

    The Charter  values in issue in the interpretation if Part IV.1 of the Criminal Code  include, inter alia, privacy and the rule of law. When Parliament enacted the amendments to the Criminal Code  to establish Part IV.1, they did so through the Protection of Privacy Act, S.C. 1973‑74, c. 50, s. 2. This legislation, in my view, was enacted to do just that, protect privacy. It provided therefore that, should an invasion of privacy become necessary in the course of a criminal investigation, the police are obliged to seek proper authorization. The legislative regime established under Part IV.1 clearly requires the police to act according to the rule of law in order to intercept communications. The rule of law here requires that the authorizing judge exercise a discretion in granting the application. The exercise of such discretion is entirely in accord with the wording and plain intention of Parliament. Section 178.13(1)  begins: "An authorization may be given if the judge to whom the application is made is satisfied..." (Emphasis added.) The criteria which the section then goes on to list can only be objectively considered if the authorizing judge has all the information which forms the basis of the police request. Unless such information is present, the judge cannot meet the requirements of s. 178.13  of the Criminal Code .

 

    I am of the view that the validity of an authorization made under the section is not to be determined by asking whether it can on its face conceivably be construed as authorizing what was done but whether it is clear from the face of the authorization that the authorizing judge in fact authorized what was done in the exercise of a discretion based on all the relevant facts.  If that question is answered in the negative, or if there is any doubt about the answer, then the authorization and the interceptions made pursuant to it are, in my view, invalid and the evidence acquired is inadmissible pursuant to s. 178.16(1) of the Code.  I believe that to be the case here.

 

//La Forest J.//

 

    The following are the reasons delivered by

 

    LA FOREST J. (dissenting) -- This appeal raises many important issues in the law relating to the obtaining of wiretap evidence.

 

    I have had the advantage of reading the reasons of my colleague Justice Sopinka who sets forth the facts, the judicial history and the issues in the case, to which I refer.  Though I agree with him on a few of the issues, I respectfully disagree with him on others as well as with his proposed disposition of the appeal.

 

"Resorted To" Clauses and the Act

 

    I agree with my colleague that "resorted to" clauses are not ipso facto invalid.  As he notes, s. 178.13(2)(c) of Part IV.1 of the Criminal Code, R.S.C. 1970, c. C-34, as a matter of statutory construction, gives a judge a discretion to insert such a clause in an authorization to electronically intercept private communications.  But that does not carry one very far, and I think it is important to discuss in a general way the circumstances in which, in my view, Parliament must have intended the discretion to be exercised, as well as the Charter  implications that arise out of the statutory scheme.

 

    I begin by stating that, in my view, it was never intended that the discretion was one to be routinely exercised.  This is clear from the whole thrust of the Act, including s. 178.13(2) (c) which requires place specificity where this is possible.  The primary purpose of the Act, as is evident from its original name (the Protection of Privacy Act, S.C. 1973‑74, c. 50), is to protect the privacy of individuals from electronic interceptions of their private communications, except only as permitted by a superior court judge for purposes of law enforcement.  And that exception, by virtue of s. 178.13(1) , in Goodman J.A.'s phrase, is "treated as a last resort investigative mechanism the requirements for the obtaining of which are much more stringent than for a search warrant under s. 443(1)"; see R. v. Playford (1987), 61 C.R. (3d) 101 (Ont. C.A.), at p. 143.  The Act imposes on a person seeking an authorization requirements that are highly specific as to the information to be presented to the judge.  In addition to s. 178.13(2) (c), Parliament has underscored the fact that the Act predominantly contemplates site‑specific authorizations by requiring that such information be contained in the affidavits (s. 178.12(1)(e)).  This is, of course, to enable the judge to impose such terms and conditions as may limit unnecessary intrusions on privacy.

 

    The discretion given to a judge under s. 178.13(2) (c) was intended to be exercised in accordance with the purpose of the statute taken as a whole.  It was not intended, for example, that a "resorted to" clause should be added simply because other places might in the course of the investigation be found where it might be profitable to place intercepts, though such places are, of course, unknown in the sense that they cannot be predicted.  In such cases, a new authorization can be obtained.  That Parliament has mandated a precise procedure for emergencies (s. 178.15(1)) fully accords with this approach.

 

    In a word, as I see it, s. 178.13(2) (c), by requiring a description of the place of interception where possible, was concerned that intercepts be limited, in all but the narrowest of circumstances, to places for which information was available at the time of the application for the authorization.  I note that this place-specific requirement for known persons was added to the original Act by the 1976‑77 amendment: S.C. 1976‑77, c. 53, s. 9(2).  The police under the previous provision were free to select the place; for a discussion, see R. v. Blacquiere (1980), 57 C.C.C. (2d) 330 (P.E.I.S.C.), per McQuaid J.  It will be evident that Parliament came to recognize that granting the police power to intercept calls of a suspect, wherever made, ran counter to the reasonable expectations of privacy held by Canadians.  It would, therefore, be odd indeed if, by the granting of a discretion to a judge to include "resorted to" clauses in authorizations, Parliament should be taken to have intended that the discretion be routinely used to nullify the purpose it sought to effect.

 

    But the situation may be such that the police may not be in a position to give a general description of the nature and location of the places they propose to intercept private communications.  Their investigations may reveal that the persons under surveillance, acutely sensitive to the danger of having their private communications overheard, have adopted a strategy to rule out this possibility.  There may be no premises, no specific telephones, no vehicles for which the police can provide a description in the application for an authorization.  In such circumstances, the knowledge in possession of the police at the time of applying for an authorization will effectively preclude them from giving a general description of the nature and location of the place where they propose to intercept private communications.

 

    In my view, it is to meet eventualities of that kind that Parliament has included the qualifying words "if known" in s. 178.12(1)(e) and "if a general description of that place can be given" in s. 178.13(2) (c).  It would be a startling result if the investigative arm of the state had been left with no means of coping with a highly sophisticated criminal enterprise that counted on unpredictability to shield it from electronic surveillance.  It is only in contexts of this kind that I conclude that an authorization may properly incorporate a "resorted to" clause.

 

    In the present case, we are informed (and it would appear that the authorizing judge was adequately apprised of the situation), the police were aware from the outset that those under investigation resorted to and made use of pay phones, and that in doing so they used a code to advise one another of each of the locations at which they could be reached.  This type of scheme would seem to be one that invites the granting of an authorization that includes a "resorted to" clause, in spite of the fact that interceptions could be placed at several known locations.

 

    The situation as revealed by the affidavits examined by the trial judge under the Wilson rule (see Wilson v. The Queen, [1983] 2 S.C.R. 594) would, in my view, justify a "resorted to" clause that permitted even interceptions of pay phone conversations.  The interception of telephone conversations will always, as I will describe later, have serious implications for the privacy not only of the suspect but others as well.  But it must not be forgotten that the interception of public pay phone conversations impacts to an even greater degree than the interception of private telephone conversations on the privacy of third persons.  Here, on the facts, the bugging of pay phones in a busy summer resort may have drawn within the ambit of the police's investigation literally hundreds of people who had nothing to do with the conspiracy.

 

    Under these circumstances, one would expect the authorizing judge not only to direct his mind to these considerations, but to make the interception of pay phone conversations a matter of express authorization.  I can fully understand the trial judge's expressed discomfort at the "meagre particulars" in all three authorizations.  The authorizations simply permit everything that can be permitted under the Act, i.e., the interception by means of any electromagnetic, acoustic, mechanical or other device at any place or premises where the accused may resort to in the province, and they impose no terms or conditions on the exercise of these powers.  Nothing indicates any exercise of the discretion granted to the authorizing judge under the Act.  Effectively, all discretion is delegated to the police.  The authorizations have virtually all the trappings of a blanket search warrant.

 

    I must confess to feeling more than discomfort with this way of doing things; while the issue was not directly argued (the appellants being content to rely on the unlawfulness of "resorted to" clauses generally), this broad kind of authorization seems to me to run counter to what the Act requires.  The Act (s. 178.13(1) ) provides that an authorization may be given by a judge if he is satisfied that it would be in the best interests of justice and that other investigative procedures have failed or are unlikely to succeed or the urgency of the matter makes resort to these impractical.  In short, the Act requires the exercise of discretion, and in the case of "resorted to" clauses, as noted, it is a very narrow discretion.  It can scarcely have been the intention of Parliament to permit judges by this exceptional discretion to circumvent all the privacy safeguards spelled out in the Act.  Even if it were possible to read the Act so as to permit this broad type of authorization, such authorization would, as I will indicate later, violate the Charter  requirement that the individual be secure from unreasonable search or seizure.  Accordingly, pursuant to the reasoning of Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, the discretion accorded the judge must be read to conform with the Canadian Charter of Rights and Freedoms .

 

    More particularly, the authorizations seem to me to fail to comply with the requirements of the Act respecting what must be stated in an authorization.  Section 178.13(2)  not only requires that the authorization state the identity of the person, if known, whose communications are to be intercepted and generally describe the place where such interception is to be made.  It also requires that the type of private communication that may be intercepted be stated.  This would seem to encompass conversations by means of pay phones.  At all events, the authorization must "generally describe the manner of interception that may be used".  Section 178.13(2) (c) reads:

 

    178.13 . . .

 

    (2) An authorization shall

 

                                                                          . . .

 

(c)  state the identity of the persons, if known, whose private communications are to be intercepted, generally describe the place at which private communications may be intercepted, if a general description of that place can be given, and generally describe the manner of interception that may be used;

 

    I do not take the "manner of interception" as referring solely to the technical equipment.  Given the overall purpose and structure of the Act, it must relate more broadly to the manner of interception for the purpose of describing the extent of the interferences with privacy intended by the authorization.  I do not think this obligation can be avoided in respect of a "resorted to" clause any more than it can in relation to specifically described interceptions.  Otherwise, the narrow exception has the effect of overriding the whole Act.  I should also note that, as in the case of the place of interception, the affidavit in support of an application must also set forth (s. 178.12(1)) a general description of the manner of interception proposed, again for the purpose of providing the authorizing judge with the information necessary for him to impose such terms as may be advisable in the public interest.

 

    Nor is it sufficient that one might, by reference to the supporting material, be able to determine the scope of the authorization.  An authorization, and particularly one that has the potential of massively invading the privacy of third parties, as is the case here, should on its face clearly set forth its intended ambit, as the Act expressly dictates.  Others, and particularly the trial judge, must not be left to guess about the extent of the authorization.  Certainly, Parliament did not expect the trial judge to be obliged to do so.  It expressly provided that the authorization should address the matter.  This reasoning is all the more persuasive given the fact that subsequent access to the supporting material, as this Court held in Wilson, supra, was not available at common law.

 

    For these reasons, I think the authorizations here are void.  This is sufficient to dispose of the appeal in favour of the appellants, but I think it important to discuss the other issues raised in the appeal.

 

    I turn first to the Charter  implications.

 

"Resorted To" Clauses and the Charter 

 

    An analysis of the Charter  implications of a "resorted to" clause must begin with this Court's holding that surreptitious electronic interception of private communications constitutes a "search" and "seizure" under s. 8  of the Charter , which gives Canadians a right to be secure against unreasonable search and seizure; see R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Wiggins, [1990] 1 S.C.R. 62.

 

    It is important as well to underline the specially intrusive nature of this kind of search.  As noted, I am in full agreement with Goodman J. A. who in R. v. Playford, supra, at p. 143, expressed the opinion that the interception of private communications is a more serious intrusion on privacy than a conventional search or seizure.  As J. G. Carr in The Law of Electronic Surveillance (2nd ed. 1986), at pp. 2‑20 and 2‑20.1, points out, an electronic search is a secret search, one that usually affects more persons, and lasts for substantially longer periods than conventional searches.  And since at the moment of authorization the things to be seized are neither tangible nor in existence, electronic searches are indiscriminately acquisitive.  As Carr puts it, at pp. 2‑28 and 2‑29:

 

With electronic searches nothing may be known about many of the persons who may be overheard.  As conversations of unknown individuals are intercepted, the electronic surveillance resembles a random stop‑and‑search, without probable cause, of every person who appears in the company of some known person who is suspected of being involved in criminal activity.

 

Moreover, unlike conventional searches in which it is relatively easy to determine whether the object of the search has been found, electronic searches have the potential to last long after incriminating evidence has been intercepted or to continue at a time when there can no longer be probable cause for presuming that interceptions will in fact produce such evidence.  In R. v. Duarte, supra, at p. 43, this Court observed that "one can scarcely imagine a state activity more dangerous to individual privacy than electronic surveillance and to which, in consequence, the protection accorded by s. 8  should be more directly aimed".

 

    Once it is conceded that electronic surveillance strikes at the heart of the rights of privacy s. 8  is designed to protect, the question becomes one of determining whether Part IV.1 of the Code meets the standard of reasonableness first enunciated by this Court in Hunter v. Southam Inc., [1984] 2 S.C.R. 145.  In R. v. Duarte, supra, this Court accepted, as Martin J.A. had earlier done in R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48 (Ont. C.A.), that Part IV.1 of the Code, read as a whole, does meet this standard of reasonableness and hence does not per se violate the Charter .  Martin J.A., however, also drew attention, at p. 78, to the fact that although the legislative scheme of Part IV.1 is constitutional, the granting of a particular authorization may be unreasonable and hence infringe s. 8 .  These remarks set the stage for the present enquiry.

 

    In Hunter v. Southam, this Court enunciated the standards against which the courts are to assess the reasonableness of a given search and seizure.  That case mandates that, in most circumstances, a search constitutionally requires judicial or other independent authorization.  And, at p. 168, it articulates the criteria for the granting of such authorization:

 

In cases like the present, reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s. 8  of the Charter , for authorizing search and seizure.

 

More recently, in Duarte, the Court elaborated on these standards in the context of electronic surveillance (pp. 45‑46).

 

    In my view, a "resorted to" clause does not meet the standard of reasonableness that emerges from an examination of Hunter v. Southam and Duarte as a matter of course.  For such a clause is effectively a delegation to the police of the discretion which, under the standard spelled out in Hunter v. Southam, must, where feasible, be exercised by a judge or other independent person.  Unless there are compelling reasons for such a "resorted to" clause, therefore, I do not think it meets the standard set forth in Hunter v. Southam.  That is consistent with Martin J.A.'s view that Part IV.1 does not, in its entirety, offend s. 8  of the Charter , but that a particular authorization may do so.  But I think it is reasonable to insert a "resorted to" clause in the special and limited circumstances described earlier in which Parliament intended under Part IV.1 that a judge could grant an authorization to intercept communications in an unspecified place.  As a practical matter, it can in these circumstances reasonably be said not to be feasible to do otherwise.  The facts in this case appear to fall within this description.

 

    As I noted, however, I do not think a general "resorted to" clause such as the one in issue here passes muster under the Charter .  While I would not wish to impose fussy requirements about the precise wordings of authorizations, a "resorted to" clause must at least indicate that the authorizing judge has directed his mind to the nature and limits of the powers that the police may exercise by setting them out in the authorization.  I do not think it is reasonable to simply authorize the police, in their sole discretion, to use any electronic means of interception anywhere the suspects may go.  This effectively amounts to a failure on the part of the judge to exercise his discretion and a delegation of that discretion to the police.  In the present case, the authorizations should have made specific reference to pay phones.  What an authorization permits must not be left to guesswork or interpretation by the police.  This is particularly so as regards the extensive invasions of privacy that result from interceptions of pay phones.

 

    It will be obvious that the Act and the Charter  place a heavy burden on the courts to ensure the privacy of Canadians.  Electronic surveillance is indiscriminately acquisitive; its reach extends to the conversations of the innocent and guilty alike.  The indiscriminate acquisitiveness of electronic surveillance invites the courts to redouble their vigilance and to be especially sensitive of the potential of certain practices to undermine the expectation of Canadians that their private communications are inviolable.  This legitimate and reasonable expectation of privacy will not long survive if the courts give their imprimatur to practices that allow the police to intercept private communications solely on the basis of their own reasonable belief that valuable evidence stands to be gained thereby.  In my view, "resorted to" clauses can easily result in the application of this low threshold and constitute the "fishing expeditions of considerable latitude" decried by this Court in Hunter v. Southam, supra, at p. 167.  It is sad to reflect that, even with the assistance of the Charter , the courts have failed to take the steps necessary to avoid this danger and that if Canadians are to receive adequate protection against the insidious threat to individual privacy posed by electronic surveillance, they must turn to Parliament to provide additional safeguards.  There is biting irony in this.  The Charter  was designed to protect us from possible inroads on individual rights by Parliament.

 

    When a "resorted to" clause has been properly included in an authorization, the police must themselves act reasonably if they are to come up to the high standard set by s. 8  of the Charter .  This includes the duty, noted by my colleague, to act on the basis of reasonable and probable cause in placing intercepts under a "resorted to" clause.  Again, while I do not find it necessary to impose some technical "minimization obligation" on the police (they must be given reasonable leeway to perform their function), the adoption of practices that flagrantly ignore the privacy of persons unconnected with the investigation does not, in my view, constitute a reasonable search within the meaning of s. 8 .

 

    It would afford a greater safeguard if the police were required to seek a further authorization as soon as possible where an interception made pursuant to a "resorted to" clause may result in possible intrusions on significant numbers of people (as in the case of pay phones), and circumstances may arise where this should be done.  But if on the facts an authorization was granted on the basis that such interceptions were permitted, I am on balance satisfied that it is not unreasonable to allow the police to make such interception during the term of that authorization.  As I will explain later, some safeguard -‑ and it is a critical one -‑ arises out of the fact that, on my view of the matter, the places intercepted pursuant to the "resorted to" clause must be revealed to the judge when application is made for a renewal or a new authorization, for it is then possible to supply this information.

 

    The remaining issue dealing with "resorted to" clauses raised in this appeal relates to the duty of the police to act reasonably within the meaning of s. 8 .  The question posed, in essence, is whether the police, acting under the aegis of such a clause, but having no independent evidence linking a named suspect to a particular telephone, may place intercepts there on the understanding that any evidence gained thereby would then be admissible as proof that the suspects had resorted to that place.  Framed in this manner, it can be seen that the logical result of acceding to this proposition would be to invite the police to place intercepts on mere speculation that a named suspect would frequent a given location.  It would be difficult to conceive of a "fishing expedition" of greater latitude.  On this issue, I agree with the views of Sopinka J. that the existence of extrinsic evidence is always necessary.

 

New Authorization or Renewal

 

    I now turn to the question whether it was permissible to obtain fresh authorizations instead of renewals with respect to the persons and addresses stated in the first authorization.  As a starting point, it is necessary to set out for comparison the requirements for obtaining authorizations and renewals as they appear in Part IV.1 of the Code:

 

    178.13  (1) An authorization 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.

 

                                                                          . . .

 

    (3) Renewals of an authorization may be given from time to time by a judge of a superior court of criminal jurisdiction or a judge as defined in section 482 upon receipt by him of an ex parte application in writing signed by the Attorney General of the province in which the application is made or the Solicitor General of Canada or an agent specially designated in writing for the purposes of section 178.12  by the Solicitor General of Canada or the Attorney General, as the case may be, accompanied by an affidavit of a peace officer or public officer deposing to the following matters, namely:

 

                            (a)the reason and period for which the renewal is required,

 

                            (b)full particulars, together with times and dates, when interceptions, if any, were made or attempted under the authorization, and any information that has been obtained by any interception, and

 

                            (c)the number of instances, if any, on which, to the knowledge and belief of the deponent, an application has been made under this subsection in relation to the same authorization and on which the application was withdrawn or no renewal was given, the date on which each such application was made and the name of the judge to whom each such application was made,

 

and supported by such other information as the judge may require.

 

    (4)  A renewal of an authorization may be given if the judge to whom the application is made is satisfied that any of the circumstances described in subsection (1) still obtain, but no such renewal shall be for a period exceeding sixty days.

 

    It is important to note that by s. 178.13(4) a renewal may issue if any of the circumstances obtaining at the time of the initial authorization existed.  From this, it is arguable that a renewal may issue if either one of the requirements, (a) or (b), expressed in s. 178.13(1)  obtains, but that an authorization will only issue if both circumstances obtain.  Support for this proposition was found in the line of authority that holds that the Crown must meet a heavier onus when seeking a new authorization as opposed to a renewal; see, in particular, R. v. Pleich (1980), 16 C.R. (3d) 194 (Ont. C.A.), at pp. 212‑13, and R. v. Dubois (1986), 27 C.C.C. (3d) 325 (Ont. C.A.), the latter cited by the Court of Appeal in this case (1986), 33 D.L.R. (4th) 744, at pp. 757‑58.

 

    Yet an examination of the nature of the two requirements contained in s. 178.13(1)  reveals the tenuousness of the notion that an authorization imposes a heavier onus on the police.  It seems to me to be entirely specious to contemplate that Parliament envisaged that a renewal would issue on application of s. 178.13(4), if only s. 178.13(1) (b) and not s. 178.13(1) (a) obtained; this would presuppose that a judge would exercise his discretion to issue a renewal when satisfied that it was not in the best interests of justice to do so.  As for the contention that a renewal could issue if only the circumstances described in para. (a) obtained, I am of the view that this too leads to an absurdity.  Implicit in this conclusion is the notion that the preconditions that were essential to the granting of an authorization no longer bear on the issue of a renewal and hence on the determination whether the renewal is in the best interests of the administration of justice.  Clearly, the "last resort" requirement in s. 178.13  was formulated with an eye to the invasiveness of electronic surveillance and hence to the need to restrict its application solely to situations where other investigative methods have borne no fruit or where urgency compels its use.  It would be aberrant to suppose that these considerations, which loom so large in the initial decision to authorize an intercept, would be of no consequence in the decision to renew.  The very fact that Parliament has imported a renewal requirement, and not made authorizations open‑ended, surely suggests that these considerations will again be integral to the decision to permit the use of electronic surveillance.  To hold otherwise is to conclude that it was the intention of Parliament that it might be in the best interests of the administration of justice to permit the continued use of electronic surveillance where other investigative procedures were available or there was no urgency.  Though a literal reading of s. 178 could conceivably lead to this conclusion, I find this result to be entirely at odds with the purpose of Part IV.1 of the Code.

 

    I would therefore conclude that the notion that obtaining an authorization places a heavier onus on the Crown is chimerical.  This conclusion sets the stage for a consideration of what I think is the crucial point in the resolution of this issue, namely the other distinction between authorizations and renewals set out in s. 178.13(4).

 

    As I see it, considerable importance must be accorded the fact that Parliament has specified that different considerations will obtain in the case of an authorization and a renewal.  The question confronting a judge faced with a request for a renewal is whether circumstances justify a further invasion of privacy.  Section 178.13(3) places on the affiant the obligation to state in clinical detail all that has transpired to that time in the course of the electronic search.  As such, the section is well tailored to permit a judge to assess whether an invasion of privacy for which justification existed at one time has become overly prolonged and hence unwarranted.  As perceptively noted by D. Watt (now Mr. Justice Watt) in his book, Law of Electronic Surveillance in Canada (1979), either a surfeit or a paucity of evidence may justify a decision to terminate a search.  He states, at p. 141:

 

The furnishing of this information to the judge who will adjudicate upon the application for renewal enables him to consider whether authorized electronic surveillance should continue either upon the footing that it is in the best interests of the administration of justice to do so or upon any of the alternative basis of investigative necessity.  The evidence gathered may present such a compelling case for charging [sic] all or some of the objects of the order sought to be renewed that the judge upon the renewal application cannot be satisfied on a balance of probabilities that protracted electronic surveillance should occur.  At the other end of the spectrum, the evidentiary cupboard may be so barren at the conclusion of the initial period that no sufficient cause exists to continue the court‑sponsored activity.  The majority of cases fall somewhere in between with the quantum of information acquired and disclosed under section 178.13(3)(b) simply being a factor to be considered in determining whether any of the requisite findings can be properly made.

 

    In my view, it is essential that a decision to renew be made with an eye to the evidence gleaned by the electronic search to the date of the renewal request.  The line of authority to the effect that it is not an error to obtain fresh authorizations in the place of renewals acknowledges the importance of this information.  But it holds that where new targets are added in the course of an investigation, it would import unnecessary technicality to require the police to renew an existing order and then to seek a separate order each time the scope of the investigation was expanded.  This fragmentation can, it has been stated, be prevented through recourse to an all‑encompassing authorization; see R. v. Vrany, Zikan and Dvorak (1979), 46 C.C.C. (2d) 14 (Ont. C.A.); R. v. Volpe (1981), 63 C.C.C. (2d) 506 (Ont. C.A.).  As for the detailed information called for in s. 178.13(3), the implication is to the effect that this disclosure requirement will be read into the authorization requirements.  As the Court of Appeal put it, at p. 758:

 

    In this case, "new targets" were added with each new authorization.  The investigation was expanded.  It was appropriate, in our opinion, to seek a fresh authorization.  No prejudice could result to the respondents.  The onus on the Crown when seeking a new authorization is heavier than in obtaining a renewal under s. 178.13(3).  Full disclosure of what had previously occurred with respect to the investigation would be required by the authorizing judge before he could be satisfied that it was in the best interests of the administration of justice that the order be made.  [Emphasis added.]

 

    I would respectfully decline to follow the above‑noted authorities.  Concerns with administrative efficacy and limiting paperwork should carry little weight in this matter.  Parliament has prescribed that a separate route be taken for authorizations and for renewals, and the very particular requirements flowing from s. 178.13(3) have been carefully tailored to permit a judge to decide whether there is a compelling basis upon which to permit the search to continue.  I conclude that s. 178.13(3) takes the form of an important safeguard of the privacy interests that Part IV.1 of the Code is designed to protect, and would be loathe to proceed on the assumption that there is somehow a guarantee that a judge issuing an authorization will read in the requirements of s. 178.13(3).  In a matter such as this, there can be little room for sanguinity.

 

    By way of illustrating the reasoning that leads me to these conclusions, I turn to the facts of this investigation.  The police obtained the first authorization in March 1983.  Relying on the "resorted to" clause, they installed intercepts on a number of unspecified locations during the currency of the first authorization.  Many of these locations were pay phones.  These pay phones are not mentioned in the second authorization (some sixty days after the first), nor are additional intercepts placed during the currency of the second authorization mentioned in the third authorization, again issued some sixty days after the second.  As noted by my colleague, it is nevertheless clear that the equipment which the police placed during the first authorization remained in place until the end of the investigation which concluded with the arrests of the appellants in September.  In other words, specific intercepts placed pursuant to the police's "resorted to" clause were in place, and their use subject only to the internal restraints of the police for a period of roughly six months.  By way of parenthesis, I note that this is not possible where the police place intercepts at places that have been specifically designated in an authorization.  This follows from the fact that authorizations are only valid for a maximum of sixty days; see s. 178.13(2) (e).  For the police to obtain further authority to intercept communications at a place specifically designated in an original authorization, they would have to obtain subsequent authority that specifically mentioned the same place.  I can see no reason why they should not have to do the same with regard to communications intercepted pursuant to "resorted to" clauses.

 

    On the basis of the foregoing, I have reached the conclusion that the police should have followed the renewal route in respect of the persons and places contemplated in the first authorization.  Accordingly, I would hold that as regards the persons and places contemplated in the first authorization, any evidence gained during the course of the subsequent authorizations is inadmissible.  By application of the principle of severance enunciated by this Court in Grabowski v. The Queen, [1985] 2 S.C.R. 434, it would, however, follow that the second and third authorizations are valid in respect of the persons and places which were added there, provided that the evidence linking such persons was not itself gained through means inconsistent with these reasons.

 

Failure to List the Pay Phones

 

    During the course of the investigation, the police, acting on the strength of the "resorted to" clause, placed intercepts on several pay phones.  Six of these were tapped during the currency of the first authorization, with an additional five being added during the currency of the second.  All eleven telephones were tapped during the currency of the third authorization.  When the police applied for new authorizations, they failed to make specific reference to these pay phones.  For example, the third authorization contains no specific reference to any of the eleven pay phones.  This fact led the trial judge to hold that the authorizations were invalid.  As stated by McMorran Co. Ct. J.:

 

    As I mentioned in the preceding paragraph the 2nd and 3rd Authorizations did not include a description of the "place at which private communications may be intercepted" -‑ see Code Section 178.13(2) (c) -‑ at least insofar as the public pay telephones were concerned, and private communications were being intercepted on some public pay telephones during the 1st Authorization, and others were being intercepted during the 2nd Authorization, and all continued into the period of the 3rd Authorization.  This omission strikes at the heart of the validity of the Authorizations and in the result the interceptions were not "lawfully made" within the meaning of Code Section 178.16(1) (a).  The Authorizations being invalid on a matter of substance, and not merely "a defect in form or an irregularity in procedure", it follows that any interceptions obtained are inadmissible.

 

    The Court of Appeal disagreed, relying on the decision of the Ontario Court of Appeal in R. v. Papalia (1984), 13 C.C.C. (3d) 449, a decision subsequently affirmed by this Court, [1988] 2 S.C.R. 137.  In the opinion of the Court of Appeal, the trial judge erred inasmuch as his inquiry into the question whether the pay phones were known at the time the authorizations were issued amounted to a collateral attack on an authorization that was valid on its face.  On the authority of the decision of this Court in Wilson v. The Queen, supra, the Court of Appeal held that review of an authorization was limited to situations in which there was evidence of fraud and wilful non‑disclosure or where there was an order to open the sealed packet.

 

    In dealing with this issue, it is important to scrutinize Papalia with some care.  In that case, the authorization after referring to specific addresses added in what was described as a "basket clause" that intercepts could be made "at or near such further other locations, both stationary or mobile, for which there are reasonable and probable grounds to believe such locations may be used by any person or persons" described.  On the basis of this authorization, the police placed a "bug" in the accused's cars.  The trial judge found that the police intended to make these interceptions as of the time of their application for the authorizations, but that they had not informed the trial judge of this fact.  He, therefore, held the intercepted communications inadmissible because s. 178.12(1)(e) of the Code required them to give "a general description of the nature and location of the place, if known".

 

    The Ontario Court of Appeal reversed the trial judge, not on the substantive issue but on the procedural ground mentioned above:  that the authorization was valid on its face, and in proceeding as he did, the trial judge in effect permitted a collateral attack on the order of a superior court judge and this was beyond his jurisdiction.

 

    The case came to this Court as of right and judgment was given by a four‑person panel with the consent of the parties.  The panel unanimously affirmed the Court of Appeal on the procedural point.  This was required by Wilson, supra, which has recently been re‑affirmed in R. v. Meltzer, [1989] 1 S.C.R. 1764.  Three members of the Court, however, went on to deal with the substantive issue and held that the trial judge was in error.  I did not deal with the issue.

 

    While the holding of my three colleagues is, of course, entitled to the greatest respect, I should observe that it does not constitute a binding decision of this Court.  Since the trial judge was without jurisdiction to consider the matter, it follows that this Court was not, in strictness, seized of the issue.  The pronouncement, though important, was, therefore, obiter, one moreover in which it did not have the benefit of the views of the Court of Appeal.  It is thus open for reconsideration.  I note that this Court has, in recent years, taken that course even in the face of a larger majority; see Mills v. The Queen, [1986] 1 S.C.R. 863, and R. v. Rahey, [1987] 1 S.C.R. 588.  I am, therefore, emboldened to give my views on the matter.

 

    I again draw attention to the fact that the Protection of Privacy Act originally only required that the authorization describe the place where a private communication could be intercepted when the identity of the person was not known.  Parliament, however, clearly set forth in the 1976‑77 amendments that the authorization must describe the place of interception if such description can be given whether the person is known or not known.  The early approach was thus discarded, and Parliament's clear words require that a description of the place of interception must be given to the judge authorizing the interception where, as it was in the present case, this is possible at the time.  The historical backdrop to s. 178.13(2) (c) does not seem to have figured in Papalia.  But in the face of this sequence of events, I am quite unable to understand how a very general "resorted to" clause can cover specific locations that are already known.  This seems to me to fly in the face of Parliament's clearly expressed intention requiring that where electronic invasions of privacy are necessary in the interests of law enforcement, they must be authorized by a judge.  I fail to see how the judge can perform his or her role of overseeing the police if the latter can, with impunity, simply not provide the judge with the information required by the Act.

 

    I should say that the implications of Papalia for privacy are more serious in other contexts than they were in that case, where the accused's automobiles were "bugged".  One's home has been traditionally regarded as one of the most important bastions of privacy.  Again, the pay phone, for different reasons, poses a more serious threat to the privacy of Canadians.  Interceptions of communications from a pay phone have the potential of invading the privacy of large numbers of individuals who have absolutely no connection with the accused or his crime.

 

    Finally, while there are some, though somewhat marginal, differences from a policy perspective, I have difficulty, from the standpoint of statutory interpretation, in distinguishing Papalia from R. v. Chesson, [1988] 2 S.C.R. 148, decided subsequent to Papalia.  There it was held that a person who was known at the time the authorization was granted could not fall within a basket clause that would otherwise have covered the accused, by virtue of the operation of s. 178.12(1)(e).

 

    For these reasons, I would hold the information obtained from the pay phones known at the time of the second and third authorizations, respectively, inadmissible.

 

    But even if one were not prepared to review the issues considered by my colleagues in Papalia, other considerations compel its re‑examination.  It must be underlined that in Papalia, the Court was not called upon to apply the Charter .  This has become all the more significant since the decision of this Court in Slaight Communications Inc. v. Davidson, supra, where it was held that the exercise of a discretion granted under an Act must be read so as to conform to Charter  obligations.  I turn then to the Charter  implications.

 

    As I indicated in discussing the application of the Charter  to "resorted to" clauses generally, the Hunter v. Southam test requires, where feasible, authorization by a judicial officer before an interception is made.  There is no question that it was feasible in this case for the police to supply the information regarding the pay phones they had already "bugged" when they applied for the second and third authorizations.  At that time, the police knew they intended to continue to intercept the communications at those pay phones.  If we are to give the s. 8  standard as expounded in Hunter v. Southam more than lip service in this context, all the proposed places of interception known to the police when an application for an authorization is made must be described in reasonably specific terms.  If a place is intercepted under a "resorted to" clause following that authorization, it must similarly be described in any subsequent authorization or renewal.  It is incumbent on the police, as agents of the state, to supply this information.  Otherwise, I do not see how judges can be said to have the information necessary for them to act judicially as required by Hunter v. Southam in performing their high duties under the Constitution.  To permit the police to act in this way has the potential to reduce the standard in Hunter v. Southam to a grandiose but largely empty statement; eloquent but lacking essential structural underpinnings.  The standard is only as good as the information that is placed before the judge.

 

    How seriously that can affect the workings of the laws enacted by Parliament for the protection of privacy is evident, as we saw, from the fact that the intercepts at the pay phones continued for six months without knowledge and, therefore, without specific authorization by the judge, while specific authorizations continue only for two months, unless specifically renewed.  This is especially disconcerting given that the non‑specifically authorized intercepts at issue in this case were pay phones, which affect the privacy of communications of large numbers of people who have absolutely no connection with the matter under investigation.  The effect is that the police by this means are permitted to electronically intercept private communications for a protracted period in their discretion without specific authorization by a judge even when it is feasible to do so.  This, of course, circumvents the policy clearly evident from a reading of Part IV.1 of the Code.  But more important, it fails to conform to the requirement in Hunter v. Southam that a search and seizure requires pre‑authorization by a judicial officer where this is feasible.  It follows that the failure of the police to inform the trial judge of the information regarding the pay phones taints the authorizations issued when the police had this information, and these authorizations thus offend against s. 8  of the Charter .

 

    I am aware, of course, that the power of the courts at common law to look behind the authorization is extremely limited; see Wilson v. The Queen, supra.  However, the Court in Wilson was not addressing a constitutional issue.  Here, however, we are concerned with a breach, not of a statute, but of the Constitution.  Under s. 52(1)  of the Constitution Act, 1982 , the courts are endowed with the power to declare any law inconsistent with the Constitution to be of no effect, and under s. 24(1)  of the Charter  a court of competent jurisdiction is empowered to give an appropriate remedy to anyone whose Charter  rights have been abridged.  It would frustrate the operation of these provisions, and thus the Constitution, if the courts could not take the steps necessary to give life to the Constitution.  I refer in this context to the approach taken in R. v. Playford, supra.

 

Surreptitious Entry

 

    On this issue, I agree with Sopinka J. but I would like to add some observations of my own.  As I view it, an authorization issued pursuant to s. 178.13(1)  is, without more, determinative, from a constitutional perspective, solely of the very narrow question whether, in given circumstances, an individual's reasonable expectation of privacy with respect to his private communications should yield to the state's interest in law enforcement.  A determination of this question in favour of the state should not automatically be regarded as bringing in its train the conclusion that all other aspects of privacy protected by s. 8  also yield.

 

    The focus of the inquiry then becomes that of determining whether there is a meaningful distinction between the breach of privacy occasioned by an interception accompanied by surreptitious entry and one that is not so accompanied.  I take it to be clear that surreptitious entry strikes at a right that, though bound up to some degree with the privacy rights protected by Part IV.1 of the Code, is nevertheless an independent and distinct right:  the right to be secure in one's home from warrantless searches; see my remarks on this point in R. v. Landry, [1986] 1 S.C.R. 145, at pp. 167 et seq.  The distinction was eloquently put by Brennan J. in his dissenting judgment in Dalia v. United States, 441 U.S. 238 (1979), at pp. 259‑60:

 

    Breaking and entering into private premises for the purpose of planting a bug cannot be characterized as a mere mode of warrant execution to be left to the discretion of the executing officer.  See ante, at 257.  The practice entails an invasion of privacy of constitutional significance distinct from that which attends nontrespassory surveillance; indeed, it is tantamount to an independent search and seizure.  First, rooms may be bugged without the need for surreptitious entry and physical invasion of private premises.  See Lopez v. United States, 373 U.S. 427, 467‑468 (1963) (BRENNAN, J., dissenting).  Second, covert entry, a practice condemned long before we condemned unwarranted eavesdropping, see Silverman v. United States, 365 U.S. 505 (1961), breaches physical as well as conversational privacy.  The home or office itself, that "inviolate place which is a man's castle," id., at 512 n. 4, is invaded.  Third, the practice is particularly intrusive and susceptible to abuse since it leaves naked to the hands and eyes of government agents items beyond the reach of simple eavesdropping.

 

    Given that two distinct constitutionally protected interests are engaged when surreptitious entry is effected pursuant to an authorization to intercept private communications, it follows that invasion of either right should be countenanced solely on the basis of the criteria in Hunter v. Southam, supra.  This would not follow if the infringement of one right ineluctably entailed the infringement of the other.  But that is not the case.  Accordingly, I agree with my colleague that the authorizing judge must be placed in a position to consider the matter.

 

Disposition

 

    Despite the grave and repeated breaches of the Charter  in the present case, it would, if this were all, have been necessary to consider whether the admission of this evidence would bring the administration of justice into disrepute.  But I am spared that task because Parliament has exercised its judgment on how such evidence should be treated where it has been obtained, as in my view it was in this case, in violation of the provisions of Part IV.1 of the Criminal Code Section 178.16  makes such evidence inadmissible.

 

    For these reasons, I would allow the appeal, reverse the decision of the Court of Appeal and restore the acquittals.

 

    Appeal dismissed, WILSON and LA FOREST JJ. dissenting.

 

    Solicitor for the appellants Thompson and Cromwell:  Sidney B. Simons, Vancouver.

 

    Solicitors for the appellants Rosen and McDonald:  McCrea, Paul & Long, Vancouver.

 

    Solicitor for the appellant Auld:  Patrick A. Good, Vancouver.

 

    Solicitor for the respondent:  John C. Tait, Ottawa.

 



     * Chief Justice at the time of hearing.

     **Chief Justice at the time of judgment.

     ***McIntyre J. took no part in the judgment.

 

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