Court headnote

R. v. Durette
Collection
Supreme Court Judgments
Date
1994-03-17
Report
[1994] 1 SCR 469
Case number
23026, 23059, 23061
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Major, John C.
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 23059, 23026, 23061
Decision Content
R. v. Durette, [1994] 1 S.C.R. 469
Leonard Farinacci, Yves Lépine
and Kenneth Jeffreys Appellants
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Durette
File Nos.: 23059, 23026, 23061.
1993: November 10; 1994: March 17.
Present: Lamer C.J. and L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Major JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Interception of private communications ‑‑ Opening of sealed packet ‑‑ Editing of affidavits ‑‑ Whether reviewing judge erred in his editing procedure and in determining what to edit ‑‑ Whether accused's right to make full answer and defence denied.
Constitutional law ‑‑ Charter of Rights ‑‑ Right to make full answer and defence ‑‑ Interception of private communications ‑‑ Opening of sealed packet ‑‑ Editing of affidavits ‑‑ Whether reviewing judge's editing of affidavits deprived accused of right to make full answer and defence ‑‑ Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d).
The accused were charged with offences involving conspiracy to traffic in controlled drugs and narcotics. A substantial part of the evidence against them consisted of recordings of telephone conversations intercepted pursuant to nine wiretap authorizations. The District Court judge presiding at the trial granted the accused's application to open the packets containing the material filed in support of the authorizations, stated his intention to remove the affidavits and advised counsel of the procedure he was adopting to edit the affidavits. No counsel objected to the proposed procedure. The trial judge initially edited the affidavits on his own according to his understanding of the principles set out in Parmar and, in his opinion, made deletions "only insofar as [the affidavits] contain information from informants and others which is to be protected, and insofar as they contain summary or opinion". He proceeded to review the edited affidavits with the Crown and accepted its submissions as to the nature and extent of the editing. The accused and their counsel were present throughout this exercise. The edited affidavits were distributed to defence counsel who made submissions regarding the deletions. The trial judge mentioned again that he had only deleted informants' information and, in one or two cases, some "commentary". He did not accede to defence counsel's requests for more information as to the content of the affidavits, although he did inform them as to whether the accused were named in the deleted portions of the affidavits and proceeded to list those accused in the deleted portions of the nine affidavits. When defence counsel pointed out that the deletions by the trial judge went beyond those made from the same affidavits by the judge who presided over an earlier trial of a first group of accused, the trial judge indicated that the editing of the other judge was irrelevant to his editing task. The accused filed a Wilson application to set aside the seven District Court authorizations. At the hearing, the accused cross‑examined for nine full days the three police officers who swore the affidavits in support of the authorizations but were not allowed to cross‑examine the "sub‑affiants" who supplied information to them. However, the trial judge granted the accused leave to call two additional police officers as witnesses. At the conclusion of the hearing, the trial judge dismissed the application. The accused then brought a motion to quash this ruling and sought prohibition in the Ontario Supreme Court to prevent the trial judge from admitting primary evidence obtained from the District Court authorizations. This motion was dismissed. Concurrently, the accused brought a second Wilson application to set aside the two Ontario Supreme Court authorizations. The judge edited the affidavits filed in support of these authorizations less extensively than the trial judge and dismissed the application. The trial resumed and the accused were convicted. The majority of the Court of Appeal upheld the convictions. The issue in this Court is whether the trial judge's editing of the affidavits prevented a proper and full inquiry into the validity of the authorizations, thereby depriving the accused of the right to make full answer and defence as guaranteed by ss. 7 and 11 (d) of the Canadian Charter of Rights and Freedoms .
Held (L'Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting): The appeals should be allowed and a new trial ordered.
Per Lamer C.J. and Sopinka, Cory and Major JJ.: The Charter guarantee of the right to make full answer and defence requires that, as a general rule, all relevant information in the possession of the state be disclosed to an accused. Accordingly, when determining whether the contents of wiretap affidavits should be disclosed to an accused, full disclosure should also be the rule subject to certain exceptions. To justify non‑disclosure, the Crown must show that disclosure will prejudice the interests of informants, innocent persons or law enforcement authorities and that such prejudice overbears the interests of the accused. When non‑disclosure is justified, the affidavits should only be edited to the extent necessary to protect these overriding public interests. While trial judges must be granted some discretion to determine what editing is required to ensure that the public interest is protected, that discretion does not include the power to edit material whose continued confidentiality clearly is not justified by any of the public interest concerns in non‑disclosure. Here, the trial judge did not comply with Parmar in editing the affidavits more extensively than was necessary to protect the public interest. The affidavits as edited by the judge who presided over the earlier trial were relevant and should have been the starting point for the trial judge. In editing out from the same affidavits information that had not been edited by the other judge, and was therefore public, the trial judge ignored the basic rule of non‑disclosure that it is only confidential information that qualifies. Furthermore, the trial judge excised not only information which might tend to identify informants, but also information obtained from informants and others, and material which he characterized as "commentary", "summary" or "opinion". Editing is to be kept to a minimum and this principle clearly was not respected in this case. Given the conclusion that the trial judge did not comply with the principles set out in Parmar, subsequently approved of by this Court in Garofoli, in determining what to edit, it is unnecessary to decide whether or not the procedure adopted by the trial judge in editing the affidavits was in accordance with the procedure suggested by the authorities.
By showing that the trial judge excised a substantial amount of material whose continued confidentiality could not be justified on the basis of the factors set out in Parmar, the accused have established prima facie that their ability to make full answer and defence was prejudiced in that they were denied the opportunity to conduct a full inquiry into the validity of the wiretap authorizations challenged before the trial judge. The accused should not be required to demonstrate the specific use to which they might put information which they have not even seen. The Crown has not been able to establish that no prejudice occurred and an appellate court which does not have the benefit of access to counsel's brief cannot be expected to speculate in these circumstances. While the affidavits as edited by the trial judge disclosed sufficient grounds to sustain the relevant authorizations, the material contained in the excised portions of the affidavits could be used to impugn the contents of the affidavits which have been disclosed. In the absence of overriding policy concerns which justified confidentiality, the accused were entitled to have the opportunity to use the deleted material in this fashion. Even though the trial judge reviewed the material which had been deleted from the affidavits in assessing the validity of the authorizations, this judicial screening of the material which was improperly withheld from the accused did not cure the failure to make proper disclosure. The fact that the trial judge may not have seen how the excised material could have assisted the accused does not necessarily mean that defence counsel would not have found a way to use that material to their advantage.
The trial judge erred in editing the affidavits in such a way that the accused were denied the right to make full answer and defence and this error cannot be cured by the application of s. 686(1) (b)(iii) of the Criminal Code . It is impossible to say that the verdicts against the accused would necessarily have been the same if the defence had succeeded in establishing that even one of the impugned authorizations was invalid.
Per L'Heureux‑Dubé, Gonthier and McLachlin JJ. (dissenting): The procedure followed by the trial judge and his editing of the affidavits did not deprive the accused of their right to make full answer and defence as guaranteed by ss. 7 and 11 (d) of the Charter . In drug trafficking and conspiracy cases, the balance between the protection of both society and informers and the respect of the individual rights of the accused has been struck in s. 187 of the Criminal Code and these rules were respected in this case.
The trial judge did not err in editing the affidavits on his own before receiving any submissions in open court from the Crown as to the nature of the matters to be edited and the basis therefor. The procedure for the disclosure of the contents of wiretap affidavits to an accused was set out by this Court in Garofoli after the trial in this case and it was not intended to be exclusive or exhaustive. Here, the trial judge followed Parmar, which was regarded as setting out the proper procedure at the time. The Crown was consulted and had an input during the editing process, and the trial judge remained open to suggestions by both counsel, who were present throughout the exercise. As long as the Crown has the opportunity to effectively indicate its position with respect to the editing, it is not material whether its submissions are made before or after the editing.
The trial judge's failure to provide judicial summaries of his deletions did not impair the accused's case. No request was made for the summaries at the time of the editing and no specific reason was given or facts demonstrated by the accused with respect to the need for summaries in the circumstances of this case.
In editing the affidavits, a trial judge must decide in his discretion what portions should be edited and to what extent, bearing in mind the protection of the interests of the state in its investigation techniques and in non‑disclosure of informers' identity. Such discretion is not only subjective, but depends on the facts and the context of the case. While, in some circumstances, deleting the names and addresses of informers will be sufficient for their protection, this is not necessarily so in each case. The protection of police informers is crucial to the proper administration of justice and the slightest detail that might help identify an informer must be deleted, especially as here in cases of drug‑related offences and organized networks of narcotic distribution. In balancing the interests of the accused and the public interest in the administration of justice, the trial judge deleted information from informers from the affidavits on the basis that such information was likely to lead to their identification. In so doing, the trial judge was perhaps overly cautious in his attempt to protect the identity of the informers and the nature of the undercover operation. Nevertheless, this was within his discretion and could not amount to an error of law in the absence of a denial of justice or of full and fair defence.
The specific issue of possible loss of confidentiality of some informers was not raised when the accused had an opportunity to present submissions with respect to the trial judge's editing and they cannot today, without more, challenge the deletions of information identifying informers whose identity may no longer have been confidential by the time of the trial. At the time of the editing, there was no way for the trial judge to know whether, at the time of trial, such confidentiality would become unnecessary. Nothing in the record indicates that the trial judge was informed that the material in the affidavits edited out by the judge who presided over the earlier trial was not, or had ceased to be, confidential and, therefore, could be released. The trial judge could not have presumed, at the time of his editing, that the version of the affidavits as edited and released at the earlier trial was not confidential anymore.
While the deletions of immaterial information ("commentary", "summary" or "opinion") may be more questionable, these deletions were minor and were irrelevant as a basis for the issuing of the authorizations. Moreover, this falls within the trial judge's discretion and it is not enough to constitute unfairness and warrant a new trial.
The argument that material contained in excised portions of affidavits could have assisted accused is largely self‑defeating and simply ignores the continuing need for confidentiality.
Finally, a comparison of the editing made by other judges with the editing made by the trial judge on the same affidavits is not relevant. In the exercise of their discretion, judges might hold different views and come to different conclusions. As long as the exercise of discretion is made judiciously and judicially, there is no ground for reproach.
There is therefore nothing in the treatment of the sealed packets by the trial judge which constituted a reviewable error. Even assuming that his deletions were excessive to the point of amounting to an error, however, no prejudice resulting from those deletions was demonstrated. Despite a lengthy cross‑examination of the affiants and two additional witnesses, the accused were unable to demonstrate that the authorizations were facially deficient, that the edited affidavits failed to set out reasonable and probable grounds or that the affiants committed fraud, misleading disclosure or non‑disclosure in their request for the wiretap authorizations. Counsel for the accused recognized in this Court that had the affidavits submitted to the judge in order to obtain the authorizations been the edited affidavits, such affidavits would have been sufficient for the issuing of the authorizations. In these circumstances, no prejudice can be found. The purpose of a review is to ascertain that the authorizations were properly issued, not to permit accused to go on fishing expeditions to attempt to identify informers, which would be an abuse of the process in itself. The grounds of appeal did not reveal any miscarriage of justice and were worded in pure legal technicalities which have no bearing on the innocence or the guilt of the accused.
Cases Cited
By Sopinka J.
Applied: R. v. Parmar (1987), 34 C.C.C. (3d) 260; R. v. Garofoli, [1990] 2 S.C.R. 1421; referred to: R. v. Stinchcombe, [1991] 3 S.C.R. 326; Wilson v. The Queen, [1983] 2 S.C.R. 594; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1; R. v. Egger, [1993] 2 S.C.R. 451.
By L'Heureux‑Dubé J. (dissenting)
Wilson v. The Queen, [1983] 2 S.C.R. 594; R. v. Parmar (1987), 34 C.C.C. (3d) 260; Franks v. Delaware, 438 U.S. 154 (1978); R. v. Parmar (1987), 37 C.C.C. (3d) 300; R. v. Parmar (1989), 53 C.C.C. (3d) 489; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Garofoli, [1990] 2 S.C.R. 1421, rev'g (1988), 41 C.C.C. (3d) 97 (Ont. C.A.); R. v. Lachance, [1990] 2 S.C.R. 1490, rev'g (1988), 27 O.A.C. 45; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505, rev'g (1987), 36 C.C.C. (3d) 435 (B.C.C.A.), aff'g (1986), 32 C.C.C. (3d) 346 (B.C.S.C.); R. v. Zito, [1990] 2 S.C.R. 1520, aff'g (1988), 42 C.C.C. (3d) 565 (Que. C.A.); R. v. Playford (1987), 40 C.C.C. (3d) 142; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1; R. v. Rowbotham (1984), 42 C.R. (3d) 164; Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516, aff'g [1953] 1 D.L.R. 385 (B.C.C.A.); Maynard v. Maynard, [1951] S.C.R. 346; Badar Bee v. Habib Merican Noordin, [1909] A.C. 615; Gibson v. Le Temps Publishing Co. (1903), 6 O.L.R. 690; R. v. Welsh and Iannuzzi (No. 6) (1977), 32 C.C.C. (2d) 363; R. v. Meltzer, [1989] 1 S.C.R. 1764; Re Royal Commission Inquiry into the Activities of Royal American Shows Inc. (No.3) (1978), 40 C.C.C. (2d) 212; Re Miller and Thomas and The Queen (1975), 23 C.C.C. (2d) 257; R. v. Cheng (1976), 33 C.C.C. (2d) 441; R. v. Madden, Ont. Co. Ct., April 28, 1977, unreported; R. v. Wai Ting Li (No.1), [1976] 6 W.W.R. 128; R. v. Haslam (1976), 3 C.R. (3d) 248; Re Stewart and The Queen (1976), 30 C.C.C. (2d) 391; Re Regina and Kozak (1976), 32 C.C.C. (2d) 235; Re Regina and Collos (1977), 37 C.C.C. (2d) 405; R. v. Gill (1980), 18 C.R. (3d) 390; Cloutier v. The Queen, [1979] 2 S.C.R. 709; McKercher v. Vancouver‑Iowa Shingle Co., [1929] 4 D.L.R. 231; Wright v. Doe (1837), 7 AD. & E. 313, 112 E.R. 488; R. v. Sabloff, J.E. 80‑73; Re Donnelly and Acheson and The Queen (1976), 29 C.C.C. (2d) 58; R. v. Sklar, B.C.S.C., October 17, 1975, unreported; R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48 (Ont. C.A.), leave to appeal refused, [1986] 1 S.C.R. ix; R. v. Ross (1985), 26 C.C.C. (3d) 264; R. v. Wood (1986), 26 C.C.C. (3d) 77; R. v. Martel (1986), 27 C.C.C. (3d) 508; R. v. Stacey, Ont. H.C., May 20, 1986, unreported; R. v. Birt and Anderson (1986), 31 C.C.C. (3d) 176; R. v. Madsen and Scobel (1986), 31 C.C.C. (3d) 249; R. v. Graves (1987), 31 C.C.C. (3d) 552; R. v. Pascoe (1987), 32 C.C.C. (3d) 61; R. v. Martin (1986), 32 C.C.C. (3d) 257; R. v. Stensrud and Smith (1987), 56 Sask. R. 44; Bisaillon v. Keable, [1983] 2 S.C.R. 60; Roviaro v. United States, 353 U.S. 53 (1957); McCray v. Illinois, 386 U.S. 300 (1967); Colorado v. Nunez, 465 U.S. 324 (1984); United States v. Cantor, 470 F.2d 890 (1972); United States v. D'Alfonso, 357 F. Supp. 1341 (1973); People v. Sturgis, 352 N.Y.S.2d 942 (1973); United States v. Garramone, 374 F. Supp. 256 (1974); United States v. Danovaro, 877 F.2d 583 (1989); State of New Jersey v. Garcia, 618 A.2d 326 (1993); Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), [1981] 2 S.C.R. 494; R. v. Hunter (1987), 34 C.C.C. (3d) 14; R. v. Scott, [1990] 3 S.C.R. 979; Rathwell v. Rathwell, [1978] 2 S.C.R. 436; R. v. Grant, [1993] 3 S.C.R. 223.
Statutes and Regulations Cited
Act to amend the Criminal Code, the Crown Liability and Proceedings Act and the Radiocommunication Act, S.C. 1993, c. 40, s. 7.
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d).
Criminal Code, R.S.C. 1970, c. C‑34, s. 178.14(1)(a)(ii) [en. 1973‑74, c. 50, s. 2; am. 1985, c. 19, s. 24].
Criminal Code, R.S.C., 1985, c. C‑46, ss. 187 [am. c. 27 (1st Supp.), s. 24 ], 686(1)(b)(iii) [am. 1991, c. 43, s. 8], 691(1)(a).
Criminal Law Amendment Act, 1985, R.S.C., 1985, c. 27 (1st Supp.).
Protection of Privacy Act, S.C. 1973‑74, c. 50, s. 2.
Authors Cited
Bellemare, Daniel A. L'écoute électronique au Canada. Montréal: Yvon Blais, 1981.
Cohen, Stanley A. Invasion of Privacy: Police and Electronic Surveillance in Canada. Toronto: Carswell, 1983.
Cross, Rupert, Sir. Cross on Evidence, 7th ed. By the late Sir Rupert Cross and Colin Tapper. London: Butterworths, 1990.
Halsbury's Laws of England, vol. 17, 4th ed. London: Butterworths, 1976.
LaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment, vol. 1, 2nd ed. St. Paul: West Publishing Co., 1987 & Supp. 1993.
Watt, David. Law of Electronic Surveillance in Canada. Toronto: Carswell, 1979.
Wigmore, John Henry. A Treatise on the Anglo‑American System of Evidence in Trials at Common Law, vol. 1, 3rd ed. Boston: Little, Brown & Co., 1940.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston: Little, Brown & Co., 1961.
APPEALS from a judgment of the Ontario Court of Appeal (1992), 9 O.R. (3d) 557, 54 O.A.C. 81, 72 C.C.C. (3d) 421, dismissing the accused's appeals from their convictions for drug offences. Appeals allowed and new trial ordered, L'Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting.
Frank Addario, for the appellant Farinacci.
David E. Harris, for the appellant Lépine.
James Lockyer, for the appellant Jeffreys.
Robert W. Hubbard and Scott K. Fenton, for the respondent.
The judgment of Lamer C.J. and Sopinka, Cory and Major JJ. was delivered by
Sopinka J. -- These appeals concern the application of the principles set out in R. v. Parmar (1987), 34 C.C.C. (3d) 260 (Ont. H.C.), and R. v. Garofoli, [1990] 2 S.C.R. 1421, relating to the editing of affidavits filed in support of applications for authorizations to intercept private communications (hereinafter "wiretap authorizations") having regard to the obligation of the Crown to disclose developed in this Court's judgment in R. v. Stinchcombe, [1991] 3 S.C.R. 326.
I.Facts
The appellants were among some 80 individuals simultaneously arrested on January 22, 1985 after the culmination of a police investigation into the manufacture and distribution of illicit drugs by members of two motorcycle clubs.
The Crown initially laid a single information against 61 individuals charging them with conspiracy to traffic in methamphetamine, cocaine and LSD. A preliminary hearing was scheduled for December 2, 1985. However, in November 1985 the Honourable John Crosbie, Minister of Justice and Attorney General of Canada, preferred two indictments, replacing the original information and cancelling the preliminary hearing. One indictment was presented in the Supreme Court of Ontario and named 12 accused. The other indictment was presented in the District Court of Ontario and named 27 accused including the appellants. The appellants Farinacci and Lépine were jointly charged with one count of conspiracy to traffic in methamphetamine between October 1, 1983 and January 23, 1985. The appellant Jeffreys was charged with one count of conspiracy to traffic in cocaine between June 1, 1983 and January 23, 1985.
The trial in the Supreme Court of Ontario proceeded first. It began on June 2, 1986 before Bowlby J. Verdicts were rendered on February 27, 1987.
The appellants and seven other accused were tried in the District Court of Ontario before Judge O'Connell and a jury. That trial began on May 11, 1987. Pre-trial motions were heard throughout May, June and September. Verdicts were rendered on June 11, 1988. The appellants Farinacci and Lépine were convicted of conspiracy to traffic in methamphetamine. The appellant Jeffreys was convicted of conspiracy to traffic in cocaine. The evidence against the appellants consisted of testimony from informant witnesses, results of physical surveillance and recordings of telephone conversations.
One of the pre-trial motions entertained by the trial judge was a "Wilson" motion (named after the decision of this Court in Wilson v. The Queen, [1983] 2 S.C.R. 594) in which the appellants challenged the validity of seven wiretap authorizations which permitted the police to intercept their telephone conversations. The impugned authorizations were granted by Judge Scott of the District Court of Ontario. Two other authorizations were granted by Trainor and Ewaschuk JJ., both of the Supreme Court of Ontario.
Prior to the Wilson hearing, the trial judge ordered the packets containing the material filed in support of all the authorizations to be opened. He then stated his intention to remove the affidavits from the sealed packet and edit them. He explained that after editing the affidavits himself he would give a copy of the edited affidavits to the Crown to determine if further editing needed to be done. He would then give copies to counsel for the various accused and hear any "suggestions" they had about the affidavits.
After the adjournment, the trial judge indicated that he had read each affidavit in light of the decision in Parmar. He claimed to have edited the affidavits "only insofar as they contain information from informants and others which is to be protected, and insofar as they contain summary or opinion". He then proceeded to review the edited affidavits with the Crown, who suggested a few additional deletions. In a few instances the Crown indicated that material edited by the trial judge could be disclosed. These suggestions were adopted by the trial judge. The accused and their counsel were present throughout this exercise.
The trial judge then proposed to distribute the edited affidavits to counsel. However, before this took place, counsel for the appellant Farinacci made a submission requesting "all information contained in these affidavits, other than the specific name and identifying address, or the like of anybody who purports to be in the position of an informant or informer, as the case may be". The Crown argued that this submission was premature. The trial judge agreed. At that point counsel for the appellant Jeffreys requested clarification of the procedure which the trial judge intended to follow. He specifically asked whether the appellants would "have some input to request further information from the affidavits". The trial judge made it clear that the next step in the process was that the defence would receive copies of the edited affidavits and then the actual Wilson hearing would proceed.
Once the edited affidavits were distributed to counsel, but before reviewing them, counsel for the appellant Farinacci, relying heavily on the decision in Parmar, re-asserted the right of the defence to the deleted information. Counsel for the appellant Jeffreys requested an indication of the basis upon which the deletions were made. The trial judge then suggested that every deletion met all four criteria set out in Parmar. However, he also stated that in one or two cases he had deleted some "commentary".
After counsel were given an opportunity to review the edited affidavits, counsel for the appellant Farinacci again attempted to make submissions regarding the deletions that had been made. Counsel pointed out that the deletions made by the trial judge went beyond those which were made from the same affidavits by Bowlby J. The trial judge characterized the deletions which had been made by Bowlby J. as "irrelevant" to what he was doing.
Counsel for the appellant Farinacci then asked about a specific deletion from one of the affidavits, asking if it was appropriate to inquire into whether his client's name appeared in the deleted materials and in what context. The trial judge indicated that it was not appropriate for him to inquire, stating that the deletion was made "in the interests of the persons involved" and that all the deletions he made "were strictly related to informants, and one or two other minor deletions which related to commentary...".
Counsel for the appellant Jeffreys stated that the defence were, at least prima facie, entitled to all information reflecting on the reasonable and probable grounds upon which the authorizations were granted. The trial judge flatly rejected this submission.
The Crown submitted that "[t]he accused are entitled to know if they are named in the deleted portions." The trial judge then proceeded to list those accused named in the deleted portions of the nine affidavits. Defence counsel was also advised that no confidential sources had died, were potential Crown witnesses or were police officers.
At the Wilson hearing, the appellants cross-examined the three police officers who swore affidavits in support of the nine authorizations. The trial judge ruled that defence counsel could not cross-examine the "sub-affiants" who supplied information to the affiants. However, he granted the appellants leave to call two additional police officers as witnesses. On June 24, 1987 the trial judge dismissed the application to set aside the seven District Court authorizations.
Shortly after this hearing, the appellants brought an application before Watt J. to set aside the two Supreme Court authorizations. Watt J. edited the affidavits filed in support of these authorizations less extensively than O'Connell Dist. Ct. J. had edited the same affidavits before distributing them to defence counsel. Ultimately, Watt J. dismissed the application to set aside these two authorizations.
The appellants also brought a motion to quash O'Connell Dist. Ct. J.'s rulings and sought prohibition in the Supreme Court of Ontario in order to prevent him from admitting, in his capacity as trial judge, primary evidence obtained from the seven impugned District Court authorizations. This motion was heard and dismissed by Watt J. on September 10, 1987: R. v. Durette (1987), 61 O.R. (2d) 590, 37 C.C.C. (3d) 126. No appeal was taken from this decision.
The appellants appealed their convictions to the Court of Appeal inter alia in respect of the validity of the wiretap authorizations and the admissibility and use of the recordings intercepted pursuant thereto. On May 15, 1992, the Court of Appeal, Doherty J.A. dissenting, dismissed the appeal: R. v. Durette
(1992), 9 O.R. (3d) 557, 54 O.A.C. 81, 72 C.C.C. (3d) 421. The appellants appeal to this Court as of right pursuant to s. 691(1) (a) of the Criminal Code, R.S.C., 1985, c. C-46 .
II.Judgments Below
District Court (Judge O'Connell (Wilson motion))
The trial judge noted that he had edited the affidavits filed in support of the wiretap authorizations granted by Scott Dist. Ct. J. before providing those affidavits to defence counsel. He stated that "[t]he editing was undertaken to protect sensitive information, and the names of the informants."
The trial judge reviewed a number of authorities, including Wilson v. The Queen, supra, before concluding that, as a reviewing judge, he should not substitute his discretion for that of the authorizing judge unless the facts on which the authorizations were granted differed from the facts proved on the ex parte review. The trial judge also held that he was duty-bound to review the unedited affidavits that were put before the authorizing judge, even though defence counsel only had an edited version of those affidavits. He stated, "it seems to me impossible to review an affidavit and make a ruling as to whether a judge would have granted an authorization based on an affidavit without looking at that particular affidavit".
After reviewing the affidavits and the testimony of the affiants and two defence witnesses the trial judge concluded:
It cannot be said that there is proven negligence amounting to material misrepresentation, material non‑disclosure, or that there is misleading disclosure, fraud, or simply non‑disclosure as to important facts, any of which would vitiate the authorizations.
The trial judge added that he would have come to the same conclusion with respect to the edited affidavits. He found that there was a basis for the issuance of the authorizations and that the affiants had reasonable and probable grounds to believe "as to what they deposed to by stating that all the matters deposed to were true to the best of their knowledge and belief and were relevant as to the issue of whether the judge would grant the authorization sought".
Supreme Court of Ontario (motion before Watt J.) (1987), 61 O.R. (2d) 590
Watt J. emphasized that he did not view resort to the supervisory jurisdiction of the superior court as a substitute for the exercise of a statutory or other right of appeal. He made it clear that the only issue before him was whether the trial judge had the jurisdiction to determine the matter argued before him on the appellants' Wilson motion.
Watt J. held that the test to be applied in reviewing the ruling of the trial judge was whether there was some evidence upon which he could have been satisfied that there was some evidence before Scott Dist. Ct. J. upon which the latter could have been satisfied that there was compliance with the Criminal Code provisions. Watt J. found that the ruling of the trial judge passed this test. He also found that the trial judge neither breached the rules of natural justice nor exceeded his jurisdiction by limiting the scope of cross-examination of the affiants, or determining whether sub-affiants could be cross-examined and whether certain evidence should be received. Accordingly, Watt J. dismissed the appellants' motion to quash and accompanying application for prohibition.
Ontario Court of Appeal (1992), 72 C.C.C. (3d) 421
Finlayson J.A. (Brooke J.A. concurring)
Finlayson J.A. dealt with the issue of the validity of the wiretap authorizations and the admissibility and use of the taped recordings by considering the following objections: (a) "the failure to provide judicial summaries of edited material", (b) "the improper editing of affidavits supporting authorizations", and (c) "the refusal to permit examinations of police officers who had provided information to deponents of affidavits supporting authorizations". Referring to Garofoli, supra, he stated that the court should determine "whether what was done by the trial judge fell so far short of the spirit of the procedural standard suggested by Sopinka J. that we feel compelled to order a new trial" (p. 447).
Finlayson J.A. concluded that the appellants' case was not impaired by the trial judge's failure to provide summaries. He noted that the appellants had not requested summaries and emphasized that the real issue was the editing process used by the trial judge. Finlayson J.A. pointed out that the trial judge had advised counsel of the method he proposed to use in editing the affidavits and that there had been no objections to the proposed procedure at that time. However, Finlayson J.A. stated, "[i]n light of the differences between the versions of O'Connell J. and Watt J., who was in fact the author of Parmar, it is hard to argue that the trial judge properly applied the principles of that case" (p. 449). Finlayson J.A. noted that the trial judge's editing accurately reflected his statements to counsel regarding how he would proceed.
Finlayson J.A. then indicated that he had read all of the affidavits in their entirety. He described the excised information as "nothing more than a further recital, with specific examples, of how these biker gangs conducted their illegal drug operations" (p. 449). He was of the view that there was "an abundance of evidence to support the original authorizations" (p. 450). He went on to observe that he did not understand how the excised material could have assisted the appellants in opposing the admissibility of the wiretap evidence affecting them.
Finlayson J.A. stated that the trial judge may have been "over-cautious" in his editing but concluded that this did not amount to an error of law, or, if it did, then it occasioned no substantial wrong or miscarriage of justice. Finlayson J.A. agreed with the trial judge that the authorizations should not be set aside on the basis that "all known targets were not named" (p. 452). He also pointed out that defence counsel already "had a good idea" of what was contained in the affidavits since they had access to the versions of the affidavits which had been edited by Watt J. and Bowlby J. Finlayson J.A. concluded (at p. 453):
On balance, I do not think the appellants ... can show significant prejudice as a result of the editing process. In the absence of such prejudice, the failure of the trial judge to fully anticipate guidelines that would be set down by subsequent courts for editing affidavits is not sufficient, on appeal, to set aside the authorizations in question.
Doherty J.A. (dissenting)
Doherty J.A., relying on Stinchcombe, supra, stated that "[f]ull disclosure to the defence of all material information, subject to certain exceptions based on overriding public interest concerns, is now a constitutionally mandated standard" (p. 466). He held that affidavits filed in support of a wiretap authorization are ""clearly material" to the admissibility of the interceptions". Doherty J.A. concluded that disclosure of the full affidavit should be starting premise and anything less potentially impairs an accused's ability to make full answer and defence unless justified by the Crown "in accordance with established principles".
Doherty J.A. then stated that a deletion from an affidavit before it is disclosed to the defence derogates from "the goal of full public visibility of the administration of criminal justice" and "potentially adversely affects public confidence in our system of criminal justice". Therefore, a trial judge should "make only those deletions which are essential to give effect to confidentiality concerns that remain paramount as of the time the editing is sought" (p. 468).
Doherty J.A. concluded that O'Connell Dist. Ct. J. failed to apply the principles set out in Parmar, supra, in a number of respects (at pp. 471-73):
First, the trial judge edited the affidavits extensively without any input from the Crown or any information beyond that which appeared in the affidavits.... [T]he trial judge should have called upon the Crown to justify the continued need for confidentiality of those sources. Without that inquiry, there could be no valid assessment of what parts of the affidavit should be excised before they were turned over to the accused.
Secondly, the trial judge repeatedly indicated that he deleted "information from informants and others which is to be protected".... The editing process is intended to protect sources of information not the information from those sources.... It appears that in editing the affidavits the trial judge sought not only to protect the identity of informants, but to exclude from defence scrutiny all information obtained from those informants. In doing so, he took much too broad an approach to the editing process.
Thirdly, the trial judge indicated that he had edited out of the affidavits material which he regarded as "commentary" or "opinion" or "summary". Such characterizations have no role in the editing process.... It may be that allegations properly characterized as "commentary" or "opinion" have no place in the affidavit. This is not, however, any reason to remove them from the affidavit during the editing process. Indeed, such comments may provide a fertile ground for cross-examination of the affiant.
Fourthly, the trial judge indicated that the editing of the same affidavits done by the judge who presided over the earlier trial of the first group of accused was "irrelevant" to his editing task.... [I]t was very relevant. The ongoing need to preserve the confidentiality of information contained in the affidavit is the only justification for deleting that information before turning the affidavits over to the accused. If that information is already in the public domain by virtue of an earlier judicial proceeding, then confidentiality can no longer be a legitimate concern. . . .
Fifthly and finally, the editing of two of the affidavits by Watt J. in the course of a "Wilson" application brought during this trial provides cogent evidence that the trial judge went well beyond what was required when editing the affidavits.... One can only conclude from this comparison that the trial judge went well beyond what was nec

Court headnote

R. v. Durette Collection Supreme Court Judgments Date 1994-03-17 Report [1994] 1 SCR 469 Case number 23026, 23059, 23061 Judges Lamer, Antonio; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Major, John C. On appeal from Ontario Subjects Constitutional law Criminal law Notes SCC Case Information: 23059, 23026, 23061 Decision Content R. v. Durette, [1994] 1 S.C.R. 469 Leonard Farinacci, Yves Lépine and Kenneth Jeffreys Appellants v. Her Majesty The Queen Respondent Indexed as: R. v. Durette File Nos.: 23059, 23026, 23061. 1993: November 10; 1994: March 17. Present: Lamer C.J. and L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Major JJ. on appeal from the court of appeal for ontario Criminal law ‑‑ Interception of private communications ‑‑ Opening of sealed packet ‑‑ Editing of affidavits ‑‑ Whether reviewing judge erred in his editing procedure and in determining what to edit ‑‑ Whether accused's right to make full answer and defence denied. Constitutional law ‑‑ Charter of Rights ‑‑ Right to make full answer and defence ‑‑ Interception of private communications ‑‑ Opening of sealed packet ‑‑ Editing of affidavits ‑‑ Whether reviewing judge's editing of affidavits deprived accused of right to make full answer and defence ‑‑ Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d). The accused were charged with offences involving conspiracy to traffic in controlled drugs and narcotics. A substantial part of the evidence against them consisted of recordings of telephone conversations intercepted pursuant to nine wiretap authorizations. The District Court judge presiding at the trial granted the accused's application to open the packets containing the material filed in support of the authorizations, stated his intention to remove the affidavits and advised counsel of the procedure he was adopting to edit the affidavits. No counsel objected to the proposed procedure. The trial judge initially edited the affidavits on his own according to his understanding of the principles set out in Parmar and, in his opinion, made deletions "only insofar as [the affidavits] contain information from informants and others which is to be protected, and insofar as they contain summary or opinion". He proceeded to review the edited affidavits with the Crown and accepted its submissions as to the nature and extent of the editing. The accused and their counsel were present throughout this exercise. The edited affidavits were distributed to defence counsel who made submissions regarding the deletions. The trial judge mentioned again that he had only deleted informants' information and, in one or two cases, some "commentary". He did not accede to defence counsel's requests for more information as to the content of the affidavits, although he did inform them as to whether the accused were named in the deleted portions of the affidavits and proceeded to list those accused in the deleted portions of the nine affidavits. When defence counsel pointed out that the deletions by the trial judge went beyond those made from the same affidavits by the judge who presided over an earlier trial of a first group of accused, the trial judge indicated that the editing of the other judge was irrelevant to his editing task. The accused filed a Wilson application to set aside the seven District Court authorizations. At the hearing, the accused cross‑examined for nine full days the three police officers who swore the affidavits in support of the authorizations but were not allowed to cross‑examine the "sub‑affiants" who supplied information to them. However, the trial judge granted the accused leave to call two additional police officers as witnesses. At the conclusion of the hearing, the trial judge dismissed the application. The accused then brought a motion to quash this ruling and sought prohibition in the Ontario Supreme Court to prevent the trial judge from admitting primary evidence obtained from the District Court authorizations. This motion was dismissed. Concurrently, the accused brought a second Wilson application to set aside the two Ontario Supreme Court authorizations. The judge edited the affidavits filed in support of these authorizations less extensively than the trial judge and dismissed the application. The trial resumed and the accused were convicted. The majority of the Court of Appeal upheld the convictions. The issue in this Court is whether the trial judge's editing of the affidavits prevented a proper and full inquiry into the validity of the authorizations, thereby depriving the accused of the right to make full answer and defence as guaranteed by ss. 7 and 11 (d) of the Canadian Charter of Rights and Freedoms . Held (L'Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting): The appeals should be allowed and a new trial ordered. Per Lamer C.J. and Sopinka, Cory and Major JJ.: The Charter guarantee of the right to make full answer and defence requires that, as a general rule, all relevant information in the possession of the state be disclosed to an accused. Accordingly, when determining whether the contents of wiretap affidavits should be disclosed to an accused, full disclosure should also be the rule subject to certain exceptions. To justify non‑disclosure, the Crown must show that disclosure will prejudice the interests of informants, innocent persons or law enforcement authorities and that such prejudice overbears the interests of the accused. When non‑disclosure is justified, the affidavits should only be edited to the extent necessary to protect these overriding public interests. While trial judges must be granted some discretion to determine what editing is required to ensure that the public interest is protected, that discretion does not include the power to edit material whose continued confidentiality clearly is not justified by any of the public interest concerns in non‑disclosure. Here, the trial judge did not comply with Parmar in editing the affidavits more extensively than was necessary to protect the public interest. The affidavits as edited by the judge who presided over the earlier trial were relevant and should have been the starting point for the trial judge. In editing out from the same affidavits information that had not been edited by the other judge, and was therefore public, the trial judge ignored the basic rule of non‑disclosure that it is only confidential information that qualifies. Furthermore, the trial judge excised not only information which might tend to identify informants, but also information obtained from informants and others, and material which he characterized as "commentary", "summary" or "opinion". Editing is to be kept to a minimum and this principle clearly was not respected in this case. Given the conclusion that the trial judge did not comply with the principles set out in Parmar, subsequently approved of by this Court in Garofoli, in determining what to edit, it is unnecessary to decide whether or not the procedure adopted by the trial judge in editing the affidavits was in accordance with the procedure suggested by the authorities. By showing that the trial judge excised a substantial amount of material whose continued confidentiality could not be justified on the basis of the factors set out in Parmar, the accused have established prima facie that their ability to make full answer and defence was prejudiced in that they were denied the opportunity to conduct a full inquiry into the validity of the wiretap authorizations challenged before the trial judge. The accused should not be required to demonstrate the specific use to which they might put information which they have not even seen. The Crown has not been able to establish that no prejudice occurred and an appellate court which does not have the benefit of access to counsel's brief cannot be expected to speculate in these circumstances. While the affidavits as edited by the trial judge disclosed sufficient grounds to sustain the relevant authorizations, the material contained in the excised portions of the affidavits could be used to impugn the contents of the affidavits which have been disclosed. In the absence of overriding policy concerns which justified confidentiality, the accused were entitled to have the opportunity to use the deleted material in this fashion. Even though the trial judge reviewed the material which had been deleted from the affidavits in assessing the validity of the authorizations, this judicial screening of the material which was improperly withheld from the accused did not cure the failure to make proper disclosure. The fact that the trial judge may not have seen how the excised material could have assisted the accused does not necessarily mean that defence counsel would not have found a way to use that material to their advantage. The trial judge erred in editing the affidavits in such a way that the accused were denied the right to make full answer and defence and this error cannot be cured by the application of s. 686(1) (b)(iii) of the Criminal Code . It is impossible to say that the verdicts against the accused would necessarily have been the same if the defence had succeeded in establishing that even one of the impugned authorizations was invalid. Per L'Heureux‑Dubé, Gonthier and McLachlin JJ. (dissenting): The procedure followed by the trial judge and his editing of the affidavits did not deprive the accused of their right to make full answer and defence as guaranteed by ss. 7 and 11 (d) of the Charter . In drug trafficking and conspiracy cases, the balance between the protection of both society and informers and the respect of the individual rights of the accused has been struck in s. 187 of the Criminal Code and these rules were respected in this case. The trial judge did not err in editing the affidavits on his own before receiving any submissions in open court from the Crown as to the nature of the matters to be edited and the basis therefor. The procedure for the disclosure of the contents of wiretap affidavits to an accused was set out by this Court in Garofoli after the trial in this case and it was not intended to be exclusive or exhaustive. Here, the trial judge followed Parmar, which was regarded as setting out the proper procedure at the time. The Crown was consulted and had an input during the editing process, and the trial judge remained open to suggestions by both counsel, who were present throughout the exercise. As long as the Crown has the opportunity to effectively indicate its position with respect to the editing, it is not material whether its submissions are made before or after the editing. The trial judge's failure to provide judicial summaries of his deletions did not impair the accused's case. No request was made for the summaries at the time of the editing and no specific reason was given or facts demonstrated by the accused with respect to the need for summaries in the circumstances of this case. In editing the affidavits, a trial judge must decide in his discretion what portions should be edited and to what extent, bearing in mind the protection of the interests of the state in its investigation techniques and in non‑disclosure of informers' identity. Such discretion is not only subjective, but depends on the facts and the context of the case. While, in some circumstances, deleting the names and addresses of informers will be sufficient for their protection, this is not necessarily so in each case. The protection of police informers is crucial to the proper administration of justice and the slightest detail that might help identify an informer must be deleted, especially as here in cases of drug‑related offences and organized networks of narcotic distribution. In balancing the interests of the accused and the public interest in the administration of justice, the trial judge deleted information from informers from the affidavits on the basis that such information was likely to lead to their identification. In so doing, the trial judge was perhaps overly cautious in his attempt to protect the identity of the informers and the nature of the undercover operation. Nevertheless, this was within his discretion and could not amount to an error of law in the absence of a denial of justice or of full and fair defence. The specific issue of possible loss of confidentiality of some informers was not raised when the accused had an opportunity to present submissions with respect to the trial judge's editing and they cannot today, without more, challenge the deletions of information identifying informers whose identity may no longer have been confidential by the time of the trial. At the time of the editing, there was no way for the trial judge to know whether, at the time of trial, such confidentiality would become unnecessary. Nothing in the record indicates that the trial judge was informed that the material in the affidavits edited out by the judge who presided over the earlier trial was not, or had ceased to be, confidential and, therefore, could be released. The trial judge could not have presumed, at the time of his editing, that the version of the affidavits as edited and released at the earlier trial was not confidential anymore. While the deletions of immaterial information ("commentary", "summary" or "opinion") may be more questionable, these deletions were minor and were irrelevant as a basis for the issuing of the authorizations. Moreover, this falls within the trial judge's discretion and it is not enough to constitute unfairness and warrant a new trial. The argument that material contained in excised portions of affidavits could have assisted accused is largely self‑defeating and simply ignores the continuing need for confidentiality. Finally, a comparison of the editing made by other judges with the editing made by the trial judge on the same affidavits is not relevant. In the exercise of their discretion, judges might hold different views and come to different conclusions. As long as the exercise of discretion is made judiciously and judicially, there is no ground for reproach. There is therefore nothing in the treatment of the sealed packets by the trial judge which constituted a reviewable error. Even assuming that his deletions were excessive to the point of amounting to an error, however, no prejudice resulting from those deletions was demonstrated. Despite a lengthy cross‑examination of the affiants and two additional witnesses, the accused were unable to demonstrate that the authorizations were facially deficient, that the edited affidavits failed to set out reasonable and probable grounds or that the affiants committed fraud, misleading disclosure or non‑disclosure in their request for the wiretap authorizations. Counsel for the accused recognized in this Court that had the affidavits submitted to the judge in order to obtain the authorizations been the edited affidavits, such affidavits would have been sufficient for the issuing of the authorizations. In these circumstances, no prejudice can be found. The purpose of a review is to ascertain that the authorizations were properly issued, not to permit accused to go on fishing expeditions to attempt to identify informers, which would be an abuse of the process in itself. The grounds of appeal did not reveal any miscarriage of justice and were worded in pure legal technicalities which have no bearing on the innocence or the guilt of the accused. Cases Cited By Sopinka J. Applied: R. v. Parmar (1987), 34 C.C.C. (3d) 260; R. v. Garofoli, [1990] 2 S.C.R. 1421; referred to: R. v. Stinchcombe, [1991] 3 S.C.R. 326; Wilson v. The Queen, [1983] 2 S.C.R. 594; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1; R. v. Egger, [1993] 2 S.C.R. 451. By L'Heureux‑Dubé J. (dissenting) Wilson v. The Queen, [1983] 2 S.C.R. 594; R. v. Parmar (1987), 34 C.C.C. (3d) 260; Franks v. Delaware, 438 U.S. 154 (1978); R. v. Parmar (1987), 37 C.C.C. (3d) 300; R. v. Parmar (1989), 53 C.C.C. (3d) 489; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Garofoli, [1990] 2 S.C.R. 1421, rev'g (1988), 41 C.C.C. (3d) 97 (Ont. C.A.); R. v. Lachance, [1990] 2 S.C.R. 1490, rev'g (1988), 27 O.A.C. 45; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505, rev'g (1987), 36 C.C.C. (3d) 435 (B.C.C.A.), aff'g (1986), 32 C.C.C. (3d) 346 (B.C.S.C.); R. v. Zito, [1990] 2 S.C.R. 1520, aff'g (1988), 42 C.C.C. (3d) 565 (Que. C.A.); R. v. Playford (1987), 40 C.C.C. (3d) 142; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1; R. v. Rowbotham (1984), 42 C.R. (3d) 164; Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516, aff'g [1953] 1 D.L.R. 385 (B.C.C.A.); Maynard v. Maynard, [1951] S.C.R. 346; Badar Bee v. Habib Merican Noordin, [1909] A.C. 615; Gibson v. Le Temps Publishing Co. (1903), 6 O.L.R. 690; R. v. Welsh and Iannuzzi (No. 6) (1977), 32 C.C.C. (2d) 363; R. v. Meltzer, [1989] 1 S.C.R. 1764; Re Royal Commission Inquiry into the Activities of Royal American Shows Inc. (No.3) (1978), 40 C.C.C. (2d) 212; Re Miller and Thomas and The Queen (1975), 23 C.C.C. (2d) 257; R. v. Cheng (1976), 33 C.C.C. (2d) 441; R. v. Madden, Ont. Co. Ct., April 28, 1977, unreported; R. v. Wai Ting Li (No.1), [1976] 6 W.W.R. 128; R. v. Haslam (1976), 3 C.R. (3d) 248; Re Stewart and The Queen (1976), 30 C.C.C. (2d) 391; Re Regina and Kozak (1976), 32 C.C.C. (2d) 235; Re Regina and Collos (1977), 37 C.C.C. (2d) 405; R. v. Gill (1980), 18 C.R. (3d) 390; Cloutier v. The Queen, [1979] 2 S.C.R. 709; McKercher v. Vancouver‑Iowa Shingle Co., [1929] 4 D.L.R. 231; Wright v. Doe (1837), 7 AD. & E. 313, 112 E.R. 488; R. v. Sabloff, J.E. 80‑73; Re Donnelly and Acheson and The Queen (1976), 29 C.C.C. (2d) 58; R. v. Sklar, B.C.S.C., October 17, 1975, unreported; R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48 (Ont. C.A.), leave to appeal refused, [1986] 1 S.C.R. ix; R. v. Ross (1985), 26 C.C.C. (3d) 264; R. v. Wood (1986), 26 C.C.C. (3d) 77; R. v. Martel (1986), 27 C.C.C. (3d) 508; R. v. Stacey, Ont. H.C., May 20, 1986, unreported; R. v. Birt and Anderson (1986), 31 C.C.C. (3d) 176; R. v. Madsen and Scobel (1986), 31 C.C.C. (3d) 249; R. v. Graves (1987), 31 C.C.C. (3d) 552; R. v. Pascoe (1987), 32 C.C.C. (3d) 61; R. v. Martin (1986), 32 C.C.C. (3d) 257; R. v. Stensrud and Smith (1987), 56 Sask. R. 44; Bisaillon v. Keable, [1983] 2 S.C.R. 60; Roviaro v. United States, 353 U.S. 53 (1957); McCray v. Illinois, 386 U.S. 300 (1967); Colorado v. Nunez, 465 U.S. 324 (1984); United States v. Cantor, 470 F.2d 890 (1972); United States v. D'Alfonso, 357 F. Supp. 1341 (1973); People v. Sturgis, 352 N.Y.S.2d 942 (1973); United States v. Garramone, 374 F. Supp. 256 (1974); United States v. Danovaro, 877 F.2d 583 (1989); State of New Jersey v. Garcia, 618 A.2d 326 (1993); Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), [1981] 2 S.C.R. 494; R. v. Hunter (1987), 34 C.C.C. (3d) 14; R. v. Scott, [1990] 3 S.C.R. 979; Rathwell v. Rathwell, [1978] 2 S.C.R. 436; R. v. Grant, [1993] 3 S.C.R. 223. Statutes and Regulations Cited Act to amend the Criminal Code, the Crown Liability and Proceedings Act and the Radiocommunication Act, S.C. 1993, c. 40, s. 7. Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d). Criminal Code, R.S.C. 1970, c. C‑34, s. 178.14(1)(a)(ii) [en. 1973‑74, c. 50, s. 2; am. 1985, c. 19, s. 24]. Criminal Code, R.S.C., 1985, c. C‑46, ss. 187 [am. c. 27 (1st Supp.), s. 24 ], 686(1)(b)(iii) [am. 1991, c. 43, s. 8], 691(1)(a). Criminal Law Amendment Act, 1985, R.S.C., 1985, c. 27 (1st Supp.). Protection of Privacy Act, S.C. 1973‑74, c. 50, s. 2. Authors Cited Bellemare, Daniel A. L'écoute électronique au Canada. Montréal: Yvon Blais, 1981. Cohen, Stanley A. Invasion of Privacy: Police and Electronic Surveillance in Canada. Toronto: Carswell, 1983. Cross, Rupert, Sir. Cross on Evidence, 7th ed. By the late Sir Rupert Cross and Colin Tapper. London: Butterworths, 1990. Halsbury's Laws of England, vol. 17, 4th ed. London: Butterworths, 1976. LaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment, vol. 1, 2nd ed. St. Paul: West Publishing Co., 1987 & Supp. 1993. Watt, David. Law of Electronic Surveillance in Canada. Toronto: Carswell, 1979. Wigmore, John Henry. A Treatise on the Anglo‑American System of Evidence in Trials at Common Law, vol. 1, 3rd ed. Boston: Little, Brown & Co., 1940. Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston: Little, Brown & Co., 1961. APPEALS from a judgment of the Ontario Court of Appeal (1992), 9 O.R. (3d) 557, 54 O.A.C. 81, 72 C.C.C. (3d) 421, dismissing the accused's appeals from their convictions for drug offences. Appeals allowed and new trial ordered, L'Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting. Frank Addario, for the appellant Farinacci. David E. Harris, for the appellant Lépine. James Lockyer, for the appellant Jeffreys. Robert W. Hubbard and Scott K. Fenton, for the respondent. The judgment of Lamer C.J. and Sopinka, Cory and Major JJ. was delivered by Sopinka J. -- These appeals concern the application of the principles set out in R. v. Parmar (1987), 34 C.C.C. (3d) 260 (Ont. H.C.), and R. v. Garofoli, [1990] 2 S.C.R. 1421, relating to the editing of affidavits filed in support of applications for authorizations to intercept private communications (hereinafter "wiretap authorizations") having regard to the obligation of the Crown to disclose developed in this Court's judgment in R. v. Stinchcombe, [1991] 3 S.C.R. 326. I.Facts The appellants were among some 80 individuals simultaneously arrested on January 22, 1985 after the culmination of a police investigation into the manufacture and distribution of illicit drugs by members of two motorcycle clubs. The Crown initially laid a single information against 61 individuals charging them with conspiracy to traffic in methamphetamine, cocaine and LSD. A preliminary hearing was scheduled for December 2, 1985. However, in November 1985 the Honourable John Crosbie, Minister of Justice and Attorney General of Canada, preferred two indictments, replacing the original information and cancelling the preliminary hearing. One indictment was presented in the Supreme Court of Ontario and named 12 accused. The other indictment was presented in the District Court of Ontario and named 27 accused including the appellants. The appellants Farinacci and Lépine were jointly charged with one count of conspiracy to traffic in methamphetamine between October 1, 1983 and January 23, 1985. The appellant Jeffreys was charged with one count of conspiracy to traffic in cocaine between June 1, 1983 and January 23, 1985. The trial in the Supreme Court of Ontario proceeded first. It began on June 2, 1986 before Bowlby J. Verdicts were rendered on February 27, 1987. The appellants and seven other accused were tried in the District Court of Ontario before Judge O'Connell and a jury. That trial began on May 11, 1987. Pre-trial motions were heard throughout May, June and September. Verdicts were rendered on June 11, 1988. The appellants Farinacci and Lépine were convicted of conspiracy to traffic in methamphetamine. The appellant Jeffreys was convicted of conspiracy to traffic in cocaine. The evidence against the appellants consisted of testimony from informant witnesses, results of physical surveillance and recordings of telephone conversations. One of the pre-trial motions entertained by the trial judge was a "Wilson" motion (named after the decision of this Court in Wilson v. The Queen, [1983] 2 S.C.R. 594) in which the appellants challenged the validity of seven wiretap authorizations which permitted the police to intercept their telephone conversations. The impugned authorizations were granted by Judge Scott of the District Court of Ontario. Two other authorizations were granted by Trainor and Ewaschuk JJ., both of the Supreme Court of Ontario. Prior to the Wilson hearing, the trial judge ordered the packets containing the material filed in support of all the authorizations to be opened. He then stated his intention to remove the affidavits from the sealed packet and edit them. He explained that after editing the affidavits himself he would give a copy of the edited affidavits to the Crown to determine if further editing needed to be done. He would then give copies to counsel for the various accused and hear any "suggestions" they had about the affidavits. After the adjournment, the trial judge indicated that he had read each affidavit in light of the decision in Parmar. He claimed to have edited the affidavits "only insofar as they contain information from informants and others which is to be protected, and insofar as they contain summary or opinion". He then proceeded to review the edited affidavits with the Crown, who suggested a few additional deletions. In a few instances the Crown indicated that material edited by the trial judge could be disclosed. These suggestions were adopted by the trial judge. The accused and their counsel were present throughout this exercise. The trial judge then proposed to distribute the edited affidavits to counsel. However, before this took place, counsel for the appellant Farinacci made a submission requesting "all information contained in these affidavits, other than the specific name and identifying address, or the like of anybody who purports to be in the position of an informant or informer, as the case may be". The Crown argued that this submission was premature. The trial judge agreed. At that point counsel for the appellant Jeffreys requested clarification of the procedure which the trial judge intended to follow. He specifically asked whether the appellants would "have some input to request further information from the affidavits". The trial judge made it clear that the next step in the process was that the defence would receive copies of the edited affidavits and then the actual Wilson hearing would proceed. Once the edited affidavits were distributed to counsel, but before reviewing them, counsel for the appellant Farinacci, relying heavily on the decision in Parmar, re-asserted the right of the defence to the deleted information. Counsel for the appellant Jeffreys requested an indication of the basis upon which the deletions were made. The trial judge then suggested that every deletion met all four criteria set out in Parmar. However, he also stated that in one or two cases he had deleted some "commentary". After counsel were given an opportunity to review the edited affidavits, counsel for the appellant Farinacci again attempted to make submissions regarding the deletions that had been made. Counsel pointed out that the deletions made by the trial judge went beyond those which were made from the same affidavits by Bowlby J. The trial judge characterized the deletions which had been made by Bowlby J. as "irrelevant" to what he was doing. Counsel for the appellant Farinacci then asked about a specific deletion from one of the affidavits, asking if it was appropriate to inquire into whether his client's name appeared in the deleted materials and in what context. The trial judge indicated that it was not appropriate for him to inquire, stating that the deletion was made "in the interests of the persons involved" and that all the deletions he made "were strictly related to informants, and one or two other minor deletions which related to commentary...". Counsel for the appellant Jeffreys stated that the defence were, at least prima facie, entitled to all information reflecting on the reasonable and probable grounds upon which the authorizations were granted. The trial judge flatly rejected this submission. The Crown submitted that "[t]he accused are entitled to know if they are named in the deleted portions." The trial judge then proceeded to list those accused named in the deleted portions of the nine affidavits. Defence counsel was also advised that no confidential sources had died, were potential Crown witnesses or were police officers. At the Wilson hearing, the appellants cross-examined the three police officers who swore affidavits in support of the nine authorizations. The trial judge ruled that defence counsel could not cross-examine the "sub-affiants" who supplied information to the affiants. However, he granted the appellants leave to call two additional police officers as witnesses. On June 24, 1987 the trial judge dismissed the application to set aside the seven District Court authorizations. Shortly after this hearing, the appellants brought an application before Watt J. to set aside the two Supreme Court authorizations. Watt J. edited the affidavits filed in support of these authorizations less extensively than O'Connell Dist. Ct. J. had edited the same affidavits before distributing them to defence counsel. Ultimately, Watt J. dismissed the application to set aside these two authorizations. The appellants also brought a motion to quash O'Connell Dist. Ct. J.'s rulings and sought prohibition in the Supreme Court of Ontario in order to prevent him from admitting, in his capacity as trial judge, primary evidence obtained from the seven impugned District Court authorizations. This motion was heard and dismissed by Watt J. on September 10, 1987: R. v. Durette (1987), 61 O.R. (2d) 590, 37 C.C.C. (3d) 126. No appeal was taken from this decision. The appellants appealed their convictions to the Court of Appeal inter alia in respect of the validity of the wiretap authorizations and the admissibility and use of the recordings intercepted pursuant thereto. On May 15, 1992, the Court of Appeal, Doherty J.A. dissenting, dismissed the appeal: R. v. Durette (1992), 9 O.R. (3d) 557, 54 O.A.C. 81, 72 C.C.C. (3d) 421. The appellants appeal to this Court as of right pursuant to s. 691(1) (a) of the Criminal Code, R.S.C., 1985, c. C-46 . II.Judgments Below District Court (Judge O'Connell (Wilson motion)) The trial judge noted that he had edited the affidavits filed in support of the wiretap authorizations granted by Scott Dist. Ct. J. before providing those affidavits to defence counsel. He stated that "[t]he editing was undertaken to protect sensitive information, and the names of the informants." The trial judge reviewed a number of authorities, including Wilson v. The Queen, supra, before concluding that, as a reviewing judge, he should not substitute his discretion for that of the authorizing judge unless the facts on which the authorizations were granted differed from the facts proved on the ex parte review. The trial judge also held that he was duty-bound to review the unedited affidavits that were put before the authorizing judge, even though defence counsel only had an edited version of those affidavits. He stated, "it seems to me impossible to review an affidavit and make a ruling as to whether a judge would have granted an authorization based on an affidavit without looking at that particular affidavit". After reviewing the affidavits and the testimony of the affiants and two defence witnesses the trial judge concluded: It cannot be said that there is proven negligence amounting to material misrepresentation, material non‑disclosure, or that there is misleading disclosure, fraud, or simply non‑disclosure as to important facts, any of which would vitiate the authorizations. The trial judge added that he would have come to the same conclusion with respect to the edited affidavits. He found that there was a basis for the issuance of the authorizations and that the affiants had reasonable and probable grounds to believe "as to what they deposed to by stating that all the matters deposed to were true to the best of their knowledge and belief and were relevant as to the issue of whether the judge would grant the authorization sought". Supreme Court of Ontario (motion before Watt J.) (1987), 61 O.R. (2d) 590 Watt J. emphasized that he did not view resort to the supervisory jurisdiction of the superior court as a substitute for the exercise of a statutory or other right of appeal. He made it clear that the only issue before him was whether the trial judge had the jurisdiction to determine the matter argued before him on the appellants' Wilson motion. Watt J. held that the test to be applied in reviewing the ruling of the trial judge was whether there was some evidence upon which he could have been satisfied that there was some evidence before Scott Dist. Ct. J. upon which the latter could have been satisfied that there was compliance with the Criminal Code provisions. Watt J. found that the ruling of the trial judge passed this test. He also found that the trial judge neither breached the rules of natural justice nor exceeded his jurisdiction by limiting the scope of cross-examination of the affiants, or determining whether sub-affiants could be cross-examined and whether certain evidence should be received. Accordingly, Watt J. dismissed the appellants' motion to quash and accompanying application for prohibition. Ontario Court of Appeal (1992), 72 C.C.C. (3d) 421 Finlayson J.A. (Brooke J.A. concurring) Finlayson J.A. dealt with the issue of the validity of the wiretap authorizations and the admissibility and use of the taped recordings by considering the following objections: (a) "the failure to provide judicial summaries of edited material", (b) "the improper editing of affidavits supporting authorizations", and (c) "the refusal to permit examinations of police officers who had provided information to deponents of affidavits supporting authorizations". Referring to Garofoli, supra, he stated that the court should determine "whether what was done by the trial judge fell so far short of the spirit of the procedural standard suggested by Sopinka J. that we feel compelled to order a new trial" (p. 447). Finlayson J.A. concluded that the appellants' case was not impaired by the trial judge's failure to provide summaries. He noted that the appellants had not requested summaries and emphasized that the real issue was the editing process used by the trial judge. Finlayson J.A. pointed out that the trial judge had advised counsel of the method he proposed to use in editing the affidavits and that there had been no objections to the proposed procedure at that time. However, Finlayson J.A. stated, "[i]n light of the differences between the versions of O'Connell J. and Watt J., who was in fact the author of Parmar, it is hard to argue that the trial judge properly applied the principles of that case" (p. 449). Finlayson J.A. noted that the trial judge's editing accurately reflected his statements to counsel regarding how he would proceed. Finlayson J.A. then indicated that he had read all of the affidavits in their entirety. He described the excised information as "nothing more than a further recital, with specific examples, of how these biker gangs conducted their illegal drug operations" (p. 449). He was of the view that there was "an abundance of evidence to support the original authorizations" (p. 450). He went on to observe that he did not understand how the excised material could have assisted the appellants in opposing the admissibility of the wiretap evidence affecting them. Finlayson J.A. stated that the trial judge may have been "over-cautious" in his editing but concluded that this did not amount to an error of law, or, if it did, then it occasioned no substantial wrong or miscarriage of justice. Finlayson J.A. agreed with the trial judge that the authorizations should not be set aside on the basis that "all known targets were not named" (p. 452). He also pointed out that defence counsel already "had a good idea" of what was contained in the affidavits since they had access to the versions of the affidavits which had been edited by Watt J. and Bowlby J. Finlayson J.A. concluded (at p. 453): On balance, I do not think the appellants ... can show significant prejudice as a result of the editing process. In the absence of such prejudice, the failure of the trial judge to fully anticipate guidelines that would be set down by subsequent courts for editing affidavits is not sufficient, on appeal, to set aside the authorizations in question. Doherty J.A. (dissenting) Doherty J.A., relying on Stinchcombe, supra, stated that "[f]ull disclosure to the defence of all material information, subject to certain exceptions based on overriding public interest concerns, is now a constitutionally mandated standard" (p. 466). He held that affidavits filed in support of a wiretap authorization are ""clearly material" to the admissibility of the interceptions". Doherty J.A. concluded that disclosure of the full affidavit should be starting premise and anything less potentially impairs an accused's ability to make full answer and defence unless justified by the Crown "in accordance with established principles". Doherty J.A. then stated that a deletion from an affidavit before it is disclosed to the defence derogates from "the goal of full public visibility of the administration of criminal justice" and "potentially adversely affects public confidence in our system of criminal justice". Therefore, a trial judge should "make only those deletions which are essential to give effect to confidentiality concerns that remain paramount as of the time the editing is sought" (p. 468). Doherty J.A. concluded that O'Connell Dist. Ct. J. failed to apply the principles set out in Parmar, supra, in a number of respects (at pp. 471-73): First, the trial judge edited the affidavits extensively without any input from the Crown or any information beyond that which appeared in the affidavits.... [T]he trial judge should have called upon the Crown to justify the continued need for confidentiality of those sources. Without that inquiry, there could be no valid assessment of what parts of the affidavit should be excised before they were turned over to the accused. Secondly, the trial judge repeatedly indicated that he deleted "information from informants and others which is to be protected".... The editing process is intended to protect sources of information not the information from those sources.... It appears that in editing the affidavits the trial judge sought not only to protect the identity of informants, but to exclude from defence scrutiny all information obtained from those informants. In doing so, he took much too broad an approach to the editing process. Thirdly, the trial judge indicated that he had edited out of the affidavits material which he regarded as "commentary" or "opinion" or "summary". Such characterizations have no role in the editing process.... It may be that allegations properly characterized as "commentary" or "opinion" have no place in the affidavit. This is not, however, any reason to remove them from the affidavit during the editing process. Indeed, such comments may provide a fertile ground for cross-examination of the affiant. Fourthly, the trial judge indicated that the editing of the same affidavits done by the judge who presided over the earlier trial of the first group of accused was "irrelevant" to his editing task.... [I]t was very relevant. The ongoing need to preserve the confidentiality of information contained in the affidavit is the only justification for deleting that information before turning the affidavits over to the accused. If that information is already in the public domain by virtue of an earlier judicial proceeding, then confidentiality can no longer be a legitimate concern. . . . Fifthly and finally, the editing of two of the affidavits by Watt J. in the course of a "Wilson" application brought during this trial provides cogent evidence that the trial judge went well beyond what was required when editing the affidavits.... One can only conclude from this comparison that the trial judge went well beyond what was nec

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