R. v. Garofoli

R. v. Garofoli
Collection
Supreme Court Judgments
Date
1990-11-22
Report
[1990] 2 SCR 1421
Case number
21099
Judges
Dickson, Robert George Brian; Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; McLachlin, Beverley
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 21099
Decision Content
R. v. Garofoli, [1990] 2 S.C.R. 1421
Jean‑Claude Garofoli Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. garofoli
File No.: 21099.
1989: October 3, 4; 1990: November 22.
Present: Dickson C.J.* and Lamer C.J.** and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and McLachlin JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Interception of private communications ‑‑ Access to sealed packet ‑‑ Validity of wiretap authorizations ‑‑ Grounds for challenging authorizations and appropriate remedies ‑‑ Protection of identity of informers ‑‑ Editing of affidavits ‑‑ Entitlement of accused to cross‑examine on affidavits ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, Part IV.1.
Criminal law ‑‑ Interception of private communications ‑‑ Admissibility of evidence ‑‑ Relationship between s. 178.16 of Criminal Code and s. 24(2) of Canadian Charter of Rights and Freedoms .
Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Interception of private communications ‑‑ Judge failing to include minimization clause in wiretap authorizations ‑‑ Whether authorizations violate s. 8 of Canadian Charter of Rights and Freedoms .
Appellant was charged with conspiring to import a narcotic. The evidence against him was derived largely from private communications intercepted pursuant to wiretap authorizations. At the conclusion of a voir dire to determine the admissibility of the intercepted communications, the trial judge refused to order the opening of the sealed packets containing the affidavits upon which the authorizations were granted and found the wiretap evidence to be admissible. He convicted appellant. Relying on its decision in Playford, released after the trial judge's ruling, the Court of Appeal found that appellant was entitled to have access to the sealed packets. The affidavits were edited to protect confidential informants and then released to him. The court found that the editing did not impair counsel's ability to determine the facial validity of the affidavits, that the affidavits set out sufficient indicia of reliability of the informant involved, and that they set out ample facts to meet constitutional requirements for a reasonable search and seizure. Since appellant had not shown that the affiant had made a false statement knowingly and intentionally, or with reckless disregard for the truth, he was not entitled to cross‑examine him. The court concluded that the trial judge's refusal to permit appellant to have access to the affidavits did not result in a miscarriage of justice and upheld the conviction. The main issues on this appeal are whether the accused is entitled to access to the material in the sealed packet; on what terms an accused may challenge an authorization for wiretap; special requirements relating to informants; the procedure for editing affidavits in the sealed packet; whether the accused is entitled to cross‑examine on the affidavits; and whether the authorizing judge's failure to include a minimization clause resulted in authorization of an unreasonable search and seizure in violation of s. 8 of the Canadian Charter of Rights and Freedoms .
Held (L'Heureux‑Dubé and McLachlin JJ. dissenting): The appeal should be allowed.
Per Dickson C.J. and Lamer C.J. and La Forest, Sopinka and Gonthier JJ.: The Court of Appeal was right to open the sealed packets since the accused is entitled, subject to editing, to have their contents produced in order to enable him to make full answer and defence.
Since wiretaps constitute a search or seizure, the statutory provisions authorizing them must conform to the minimum constitutional requirements demanded by s. 8 of the Canadian Charter of Rights and Freedoms . The issuing judge must be satisfied that there are reasonable and probable grounds to believe that an offence has been or is being committed, and that the authorization sought will afford evidence of that offence.
The procedures available for challenging a wiretap authorization are: (1) a Parsons voir dire before the trial judge to determine whether the authorization is valid on its face, the remedy being exclusion under s. 178.16 of the Code; (2) a Wilson application before the issuing court to determine the substantive or subfacial validity of the affidavit, the remedy being the setting aside of the authorization; (3) a Garofoli hearing before the trial judge to determine whether the authorization complies with s. 8 of the Charter , the remedy being a determination of whether the evidence should be excluded under s. 24(2) of the Charter ; and (4) a Vanweenan hearing before the trial judge to determine whether the authorization names all "known" persons as required by ss. 178.12(1)(e) and 178.13(2)(c) of the Code, the remedy being exclusion under s. 178.16 .
When it is asserted by an accused that a wiretap infringes s. 8 of the Charter , the application for review should be made to the trial judge, even though applications to open the sealed packed must be made to a judge designated in s. 178.14(1)(a)(ii) of the Code, who in some cases will not be the trial judge. In determining whether a search is reasonable under s. 8 of the Charter , the reviewing judge must determine whether the Code requirements have been satisfied, since the statutory conditions are identical to the requirements of s. 8 . Whereas Wilson precluded a review of the authorizing judge's decision that the statutory conditions had been complied with, unless some ground such as fraud or new evidence was established, the application of s. 8 requires review as a step in determining the reasonableness of the search and seizure. If, based on the record, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he should not interfere. A finding that the interception is unlawful attracts the peremptory language of s. 178.16 and the evidence is inadmissible. Section 24(2) of the Charter cannot have the effect of making the evidence admissible even if its admission would not bring the administration of justice into disrepute. Accordingly, an accused who has invoked s. 24 and established that an interception was unlawfully obtained is entitled to have the evidence excluded under s. 178.16 .
Hearsay statements of an informant can provide reasonable and probable grounds to justify a search, but evidence of an informer's tip, by itself, is insufficient to establish reasonable and probable grounds. The reliability of a tip is to be assessed by having regard to the totality of the circumstances. The results of the search cannot, ex post facto, provide evidence of the reliability of the information.
The courts clearly have a power to edit derived from the supervising and protecting power they have over their own records. In determining what to edit, the judge will have regard for the rule against disclosure of police informers, subject to the "innocence at stake" exception. The determination in each case will require a balancing of the relevance of the identity of the informer to the accused's case against the prejudice to the informer and to the public interest in law enforcement which disclosure would occasion.
The preconditions for cross‑examination of the affiant imposed by the Court of Appeal, based largely on the American case of Franks v. Delaware, are too restrictive. This Court has consistently protected the right to cross‑examine. The concerns regarding protection of the identity of informers and prolongation of proceedings can be accommodated without such a drastic curtailment of the right. There is no right to cross‑examine informers, since they are not witnesses and cannot be identified unless the accused brings himself within the "innocence at stake" exception. Leave to cross‑examine should be granted at the discretion of the trial judge, who may impose limitations on its scope, when he is satisfied that cross‑examination is necessary to enable the accused to make full answer and defence. The accused must establish a basis for the view that cross‑examination will oppugn the existence of one of the preconditions for the authorization.
Appellant has shown a basis for cross‑examination here. In view of the degree of reliance by the police on the informer in this case, if the informer is discredited then the factual basis for the authorization is undermined. Since appellant was not permitted to cross‑examine the affiant, there should be a new trial.
The failure of the authorizing judge to impose conditions minimizing the interception of irrelevant communications does not result in the authorization of an unreasonable search and seizure in violation of s. 8 of the Charter . An absolute requirement of live monitoring in all cases would impose too heavy a burden on Canadian law enforcement officials. While a requirement of live monitoring or visual confirmation would generally be appropriate when telephone calls are to be intercepted at public pay telephones, the same considerations do not apply with respect to the private residence of a person named in an authorization unless there are special circumstances calling for live monitoring, and appellant has not satisfied the Court that any special considerations are involved here.
Per L'Heureux‑Dubé and McLachlin JJ. (dissenting): Since the power of a judge to grant a wiretap authorization subject to the preconditions set out in s. 178.13(1) of the Code must be exercised in conformity with the Charter , the section should be read so as to require that the judge be satisfied that there are reasonable grounds to believe that the specified offence has been or is being committed, and that evidence of the offence will be obtained by the interception sought. Apart from this limitation on a judge's ability to authorize a wiretap, the direct protection for individuals comes from two sources: s. 178.16(1)(a) of the Code, which states that to be admissible in evidence an electronic interception must have been "lawfully made", and s. 24(2) of the Charter , which provides for the exclusion of evidence where the evidence was obtained in a manner that infringed a Charter right and it is established that its admission would bring the administration of justice into disrepute. An accused seeking to exclude evidence of an interception has two remedies: (1) a Wilson application to a superior court to set aside the authorization, thereby rendering the interception not "lawfully made" within the terms of s. 178.16(1) (a); and (2) a Garofoli application before the trial judge (often a provincial court judge) for exclusion of the intercepted evidence on the ground that it constitutes an unreasonable search and seizure under s. 8 of the Charter and its admission would tend to bring the administration of justice into disrepute under s. 24(2) .
The question of whether the packet should be opened is a matter within the discretion of the judge hearing the application, who must balance the interests of the accused in the protection of privacy and a fair trial, including the right to make full answer and defence, with the public interest in the administration of justice. Given the importance of the accused's right to make full answer and defence, the balance will generally fall in favour of opening the packet, subject to editing and special concerns for the administration of justice which may arise in particular cases. Here the Court of Appeal held that the packet should have been opened, subject to editing, and the balance in this case mandates that conclusion.
In deciding whether the accused may cross‑examine on the affidavit, the judge must again balance the interests of the accused with the public interest in the administration of justice. Given that cross‑examination may present greater problems for the administration of justice and less importance, from the point of view of ensuring a fair trial, than does access to the packet, the balance will generally favour denial unless the accused is able to make a preliminary showing establishing the special relevance of the cross‑examination. In this case appellant has not established that cross‑examination was likely to assist him in presenting a full answer and defence, and it posed risks of disclosure of confidential police information and of lengthening the proceedings to no purpose. In these circumstances the balance clearly favours rejection of the right to cross‑examine.
Cases Cited
By Sopinka J.
Considered: Wilson v. The Queen, [1983] 2 S.C.R. 594; R. v. Greffe, [1990] 1 S.C.R. 755; not followed: Franks v. Delaware, 438 U.S. 154 (1978); referred to: R. v. Playford (1987), 40 C.C.C. (3d) 142; United States v. Tufaro, 593 F. Supp. 476 (1983); People v. Baris, 500 N.Y.S. 2d 572; R. v. Duarte, [1990] 1 S.C.R. 30; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48; R. v. Parsons (1977), 37 C.C.C. (2d) 497, aff'd [1980] 1 S.C.R. 785 (sub nom. Charette v. The Queen); R. v. Chesson, [1988] 2 S.C.R. 148; R. v. Meltzer, [1989] 1 S.C.R. 1764; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Bailey (1983), 4 C.C.C. (3d) 21; R. v. Banas and Haverkamp (1982), 65 C.C.C. (2d) 224; R. v. Collins, [1987] 1 S.C.R. 265; Illinois v. Gates, 462 U.S. 213 (1983); R. v. Debot (1986), 30 C.C.C. (3d) 207, aff'd [1989] 2 S.C.R. 1140; Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Bisaillon v. Keable, [1983] 2 S.C.R. 60; Re Rideout and The Queen (1986), 31 C.C.C. (3d) 211; Roviaro v. United States, 353 U.S. 53 (1957); Re Chambers and The Queen (1985), 20 C.C.C. (3d) 440; R. v. Parmar (1987), 34 C.C.C. (3d) 260; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1; Re Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449; R. v. Parmar (1987), 37 C.C.C. (3d) 300; Innisfil (Corporation of the Township of) v. Corporation of the Township of Vespra, [1981] 2 S.C.R. 145; R. v. Potvin, [1989] 1 S.C.R. 525; Gulf Islands Navigation Ltd. v. Seafarers' International Union of North America (Canadian District) (1959), 18 D.L.R. (2d) 625; R. v. Thompson, [1990] 2 S.C.R. 000; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 000, rev'g (1987), 17 B.C.L.R. (2d) 145; R. v. Lachance, [1990] 2 S.C.R. 000; R. v. Zito, [1990] 2 S.C.R. 000.
By McLachlin J. (dissenting)
Wilson v. The Queen, [1983] 2 S.C.R. 594; R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48; R. v. Meltzer, [1989] 1 S.C.R. 1764; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Wray, [1971] S.C.R. 272; Mills v. The Queen, [1986] 1 S.C.R. 863; Franks v. Delaware, 438 U.S. 154 (1978); Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 000, rev'g (1987), 17 B.C.L.R. (2d) 145; R. v. Lachance, [1990] 2 S.C.R. 000; R. v. Zito, [1990] 2 S.C.R. 000.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 8 , 24(1) , (2) .
Criminal Code, R.S.C. 1970, c. C‑34 [am. 1973‑74, c. 50, s. 2], ss. 178.1 [am. 1976‑77, c. 53, s. 7; 1980‑81‑82‑83, s. 125, s. 10; 1984, c. 21, s. 76], 178.2, 178.11, 178.12 [am. 1976‑77, c. 53, s. 8], 178.13 [am. idem, s. 9], 178.14 [am. 1985, c. 19, s. 24], 178.16 [am. 1976‑77, c. 53, s. 10], 178.17, 178.18, 178.19, 178.2, 178.21, 178.22 [am. 1976‑77, c. 53, s. 11.1; 1985, c. 19, s. 27], 178.23 [am. 1976‑77, c. 53, s. 12], 431.1 [ad. 1974‑75‑76, c. 93, s. 39], 577(3), 610(1)(a), (b).
18 U.S.C. {SS} {SS} 2510‑20 (1988).
Authors Cited
McCormick on Evidence, 3rd ed., St. Paul, Minn.: West Publishing Co., 1984.
APPEAL from a judgment of the Ontario Court of Appeal (1988), 27 O.A.C. 1, 41 C.C.C. (3d) 97, 64 C.R. (3d) 193, 43 C.R.R. 252, dismissing appellant's appeal from his conviction on a charge of conspiring to import a narcotic. Appeal allowed, L'Heureux‑Dubé and McLachlin JJ. dissenting.
Keith E. Wright and Marc Rosenberg, for the appellant.
J. E. Thompson and R. W. Hubbard, for the respondent.
//Sopinka J.//
The judgment of Dickson C.J. and Lamer C.J. and La Forest, Sopinka and Gonthier JJ. was delivered by
SOPINKA J. -- This appeal is part of a series of appeals heard together by the Court dealing with various aspects of the law relating to the interception of private communications (hereinafter "wiretaps"). The other cases in the series are Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 000, R. v. Lachance, [1990] 2 S.C.R. 000, and R. v. Zito, [1990] 2 S.C.R. 000. This appeal addresses a number of issues consequent upon the opening of the sealed packet. Principal among them are the grounds for challenges to the validity of authorizations, what is the appropriate editing of wiretap affidavits, and cross-examination on the affidavit relied on in support of an authorization.
Facts
The appellant was convicted with four others (Scibetta, Criminisi, Vanderkooy, and Allen) of conspiring to import a narcotic (cocaine). The principal evidence consisted of: (a) intercepted private communications, many of which were between Garofoli in Hamilton and Frank Savasta in Florida; (b) the evidence of Earl Smith, who was employed by Savasta to transport three kilograms of cocaine from Florida to Hamilton in November 1983; (c) the evidence of Biebuyck, as to the purchase by Vanderkooy of a quantity of cocaine in November or December 1983, and the subsequent sale and the delivery of certain of the proceeds to Scibetta; and (d) evidence confirming the presence of Smith in Hamilton in November 1983 and Savasta in Hamilton in January 1984.
The Court of Appeal held that the jury would be warranted in finding the following facts. Garofoli in Hamilton arranged with Savasta in Florida to purchase three kilograms of cocaine. On November 20, 1983, Criminisi and Allen flew to Florida and paid Savasta $20,000 of a total price of $61,000 for three kilograms of cocaine. Criminisi rented a car, and the cocaine was placed in its spare tire. Smith and Allen drove the car to Buffalo where Smith was to collect the balance of the purchase price. Smith and Allen registered at a hotel in Buffalo, and were joined by Scibetta. It was decided that Smith would drive the car across the border. After crossing the border, Smith and Allen drove to a hotel in Hamilton where they registered as guests early in the morning of November 23. Later that morning, Criminisi and Scibetta joined them at the hotel. Scibetta removed the spare tire from the rental car's trunk, put it in his car, and drove away. Smith, Criminisi and Allen went to the M & R Auto Body Shop, and met Garofoli and others. The car was stored there, with the Florida licence plates removed.
Smith remained in Hamilton, attempting to collect the balance of the purchase price. Around November 27 Criminisi paid him a further $10,000. A few days later, Smith, Criminisi and Allen went to Garofoli's home to discuss the balance. They telephoned Savasta at his office in Florida from a nearby pay telephone. Criminisi spoke first to Savasta. Then Garofoli spoke to Savasta, telling him he could be trusted to pay the balance. While speaking to Savasta, he gave $4,790 to Criminisi which he gave to Smith. Then Smith spoke to Savasta who told him to return to Florida.
In late November or in early December 1983, Vanderkooy and Biebuyck drove to the M & R Body Shop. Vanderkooy went in, returned with Scibetta, and pointed to his car. Vanderkooy and Biebuyck left, and returned about one half-hour later. Vanderkooy again went into the shop. He returned and drove to Biebuyck's home, where he removed a package containing a kilogram of cocaine from the trunk of his car. The cocaine was divided into one-ounce packages. Most of it was sold, with certain of the proceeds being turned over to Scibetta.
After Smith returned to Florida, there were several telephone calls from Savasta to Garofoli concerning payment of the money. In January 1984 Savasta came to Hamilton where he met with Garofoli.
During the investigation, there were four orders authorizing the interception of the private communications. They were granted September 26, September 29, November 21 and December 30, 1983, by judges of the High Court of Justice of the Supreme Court of Ontario. The evidence of Garofoli's involvement in the conspiracy is derived in large measure from private communications intercepted under these authorizations. These included telephone conversations which ostensibly referred to the importing of various automobiles and jewelry, but which the jury were invited to interpret as referring to cocaine.
At the conclusion of a voir dire to determine the admissibility of the intercepted communications, the trial judge refused to order the opening of the sealed packets containing the affidavits upon which the orders were obtained and ordered that the wiretap evidence was admissible. The appellant did not appear for the next day of the trial. The trial was adjourned while inquiries were made as to his whereabouts. When it appeared that there was no explanation for his absence, a bench warrant was issued for his arrest. Pursuant to s. 431.1 of the Criminal Code, R.S.C. 1970, c. C-34, the trial judge made a finding that he had absconded and ordered that the trial continue in his absence. The appellant's counsel was permitted to withdraw at that point.
The appellant appealed to the Court of Appeal of Ontario against his conviction and sentence on numerous grounds. It dismissed the appeal against conviction but allowed the appeal against sentence.
Courts Below
Court of Appeal (1988), 41 C.C.C. (3d) 97
Martin J.A., Cory J.A. Concurring
The first ground of appeal considered by the court was whether the trial judge erred in refusing the appellant access to the affidavits upon which the authorizations were granted. The trial judge had held that the appellant had not provided the necessary evidentiary basis for being granted access, nor established that denial of access contravened s. 7 of the Canadian Charter of Rights and Freedoms .
The trial judge's ruling was made before the release of R. v. Playford (1987), 40 C.C.C. (3d) 142 (Ont. C.A.), which held that an accused is entitled to access to the sealed packet, generally speaking, as of right. The Court of Appeal itself opened the sealed packets, pursuant to s. 610(1) (a) of the Criminal Code , to determine whether any substantial miscarriage of justice had occurred. The affidavits were edited as proposed by Crown counsel to protect confidential informants and then released to the appellant.
There was inconsistency among the dates contained in the documents for the November 21 authorization. The Court of Appeal, pursuant to s. 610(1) (b) of the Criminal Code , heard evidence from Roderick Flaherty, the agent designated by the Solicitor General to apply for the authorization and the commissioner who had sworn the affidavit. Flaherty was cross-examined by the appellant's counsel. The Court of Appeal was satisfied that the inconsistent dates were the result of a clerical error.
Martin J.A. then reviewed the law with respect to the review of orders authorizing the interception of private communications. The Supreme Court of Canada, in Wilson v. The Queen, [1983] 2 S.C.R. 594, held that an authorization which has not been set aside is not subject to collateral attack and must receive full effect according to its terms. An authorization may be set aside on the grounds of fraud, material non-disclosure, misleading disclosure or the discovery of new evidence that shows that the actual facts are different from those upon which the authorization was granted. The application to set aside the authorization (a "Wilson application") must be made to the same court, though not necessarily the same judge, that authorized the interceptions. Martin J.A. noted that there is no appeal directly from a ruling on a Wilson application. He suggested, however, that a record of a Wilson application should be kept, which can be filed before the trial judge. The Crown or the accused could then appeal the Wilson ruling on an appeal from acquittal or conviction.
Martin J.A. then examined the effect of the Charter on the review of wiretap authorizations. In his view, the Charter does not expand the grounds, set out in Wilson, upon which an order to set aside an authorization may be based. However, the Charter does alter the power of a trial judge to go behind an authorization. If, at the trial, the accused alleges that the authorization constitutes an unreasonable search or seizure and thereby infringes s. 8 of the Charter , the trial judge has a duty to hear submissions or evidence on this point and to rule on the lawfulness of the interception. The trial judge may not necessarily have the power to set aside the authorization, where, for instance, the conditions outlined in Wilson are not met. But he or she may, without setting aside the order, hold that the necessary statutory conditions for the granting of the authorization were not met and that the interception constitutes an unreasonable search and seizure in violation of s. 8 .
A finding that the interception constituted an unreasonable search, however, will not necessarily result in the exclusion of the evidence. If the authorization has not been set aside on a Wilson application, the evidence can only be excluded if the trial judge decides, under s. 24(2) of the Charter , that the admission of the evidence could bring the administration of justice into disrepute. Martin J.A. leaves open the issue whether s. 24(1) could be employed to quash an authorization.
Martin J.A. then reviewed American law with respect to applications for orders authorizing electronic surveillance. Under Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. {SS} {SS} 2510-20 (1988), a trial judge may suppress the contents of any intercepted wire or oral communication, among other things, on the ground that the communication was unlawfully intercepted. With respect to examining affidavits for conformity with the Criminal Code in order to judge the reasonableness of a search and seizure under s. 8 of the Charter , he approved of two American cases in particular. First, United States v. Tufaro, 593 F. Supp. 476 (S.D.N.Y. 1983), held that an interception order carries a presumption of validity. Deference is given to the determination of the issuing judge by demanding only that a "substantial basis" for finding probable cause existed. Second, People v. Baris, 500 N.Y.S. 2d 572 (A.D. 4 Dept. 1986), held that in showing the necessity of electronic surveillance (similar to the requirement in ss. 178.12(1) (g) and 178.13(1) (b)) a common sense approach must be taken whereby eavesdropping should not be used routinely as a first investigative step but neither should the police be required to show that it is a last resort.
Martin J.A. also approved of U.S. law with respect to going behind the face of the affidavit to attack the truth of the statements contained in it. The U.S. Supreme Court in Franks v. Delaware, 438 U.S. 154 (1978), held that the Fourth Amendment demands an evidentiary hearing if the accused makes a substantial preliminary showing that a false statement was included by the affiant intentionally or with reckless disregard for the truth and that the false statement is necessary to the finding of probable cause. If at the hearing the allegation of perjury or reckless disregard for the truth is established by a preponderance of evidence, and the remaining content of the affidavit is insufficient to establish probable cause, then the warrant is to be treated as a nullity and the fruits of the search excluded. Martin J.A. noted that the U.S. Supreme Court held that truthfulness in this context is not equivalent to correctness. A warrant can be based on hearsay, statements from informers, etc. The affidavit must only be truthful in the sense that the information put forth is believed or appropriately accepted by the affiant as true.
Applying these conclusions to the facts of the case, Martin J.A. held with respect to the facial sufficiency of the affidavits that: (1) the editing of the affidavits did not impair counsel's ability to assess their content to determine their facial validity; (2) the affidavits set out sufficient indicia of reliability of an informant, whose statements form some of the facts included in the affidavit; and (3) the affidavits set out ample facts to meet constitutional requirements for a reasonable search and seizure.
With respect to the truthfulness of the affidavits, Martin J.A. held that the appellant made no preliminary showing that the affiant knowingly, intentionally, or recklessly made a false statement in his affidavit in support of the authorizations. In his application to cross-examine the affiant, the appellant had attacked the truthfulness of assertions in the affidavits provided by an informant. This will be described below in greater detail. Martin J.A. held that the appellant had not made the requisite showing to justify an evidentiary hearing. Even if the informant was mistaken or had lied, there was no showing that Constable Campbell had made a false statement knowingly and intentionally, or with reckless disregard for the truth. The appellant therefore was not entitled to cross-examine Constable Campbell.
Martin J.A. therefore concluded that the refusal of the trial judge to permit the appellant to have access to the affidavits did not result in a miscarriage of justice.
Other issues raised by the appellant included an argument that the judge's instructions were insufficient with respect to accepting the evidence of witnesses Smith and Biebuyck. The trial judge noted that they had criminal records which were relevant to assessing their credibility, that they were co-conspirators, and that it would be prudent to look for confirmatory evidence. He later said that their credibility was crucial for the Crown's case, and that while their motivation to testify was self-serving he was of the opinion that they were not lying. He then went on to detail the independent evidence which confirmed much of Smith's testimony.
Martin J.A. concluded that it would have been preferable had the trial judge not baldly stated that in his opinion Smith and Biebuyck were not lying. But, he found that this did not amount to reversible error, in light of the abundance of independent confirmatory evidence.
Another issue raised was whether there had been sufficient proof that the appellant absconded within the meaning of s. 431.1 of the Criminal Code . Martin J.A. held that "absconds" means voluntarily absenting oneself from a trial for the purpose of frustrating a trial or avoiding its consequences. He further held that the trial judge did not misdirect himself in this respect. It was evident that the onus was on the Crown to prove that the appellant had absconded although it was unclear whether this was on a balance of probabilities or reasonable doubt. Martin J.A. held that even assuming the onus was reasonable doubt, there was abundant unchallenged evidence to meet the onus. Martin J.A. noted the significance of the timing of the appellant's disappearance (immediately after the wiretap evidence was held admissible), and that his counsel admitted at sentencing that he had absconded.
Martin J.A. rejected the submission that much of the evidence of absconding was hearsay, and that therefore there was no evidential basis for the trial judge's finding. Citing McCormick on Evidence (3rd ed. 1984), at pp. 743-44, he held that negative results of inquiries such as were conducted in this case are regarded as non-hearsay, and, in any event, there was ample admissible evidence to find that the appellant had absconded. Having properly determined that the appellant had absconded, Martin J.A. held that the trial judge did not err by inviting the jury to draw an adverse inference against the accused. Nor did the trial judge err by exercising his discretion to continue the trial in the absence of the appellant or his counsel, who had properly withdrawn.
I omit Martin J.A.'s discussion of the other nine grounds of appeal.
Finlayson J.A. (Concurring)
Finlayson J.A. added some comments with regard to Wilson applications. In his view, Wilson adds little to the inherent jurisdiction of a court to review its ex parte orders to protect itself from becoming an instrument of fraud or abuse of process. The question, then, is whether it is appropriate to exercise this inherent jurisdiction when an accused person affected by wiretaps has a remedy at trial by reason of ss. 8 and 24(2) of the Charter .
In virtually all litigated cases, the only issue of practical concern is the admissibility of intercepted private communications at trial. In the interest of avoiding duplicative judicial supervision and conflicting decisions, the best course is for the motions judge to adjourn a Wilson application to the trial judge. The practice in civil cases is to direct the trial of an issue on an application or motion where material facts are controverted. Likewise with wiretaps, the trial is the appropriate forum to hear all matters relating to the interception of private communications, so that these matters can be dealt with fully and with finality.
Relevant Legislation
Canadian Charter of Rights and Freedoms, ss. 7 , 8 , 24(1) and 24(2) :
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
8. Everyone has the right to be secure against unreasonable search or seizure.
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(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.
Criminal Code
Part IV.1 of the Criminal Code is entitled "Invasion of Privacy". Section 178.1 is the definition section. The definition of "offence" for Part IV.1 is limited to enumerated offences of a serious nature created by the Criminal Code , the Food and Drugs Act , the Narcotic Control Act, the Customs Act , the Excise Act , the Bankruptcy Act, and the Official Secrets Act. Also included are offences under the Criminal Code which are punishable by five or more years imprisonment, and offences under ss. 3 to 20 of the Small Loans Act, for which there are grounds to believe there is a pattern of criminal activity carried on by persons in concert. The relevant Code sections read as follows:
178.11 [now 184] (1) Every one who, by means of an electromagnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for five years.
(2) Subsection (1) does not apply to
(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;
(b) a person who intercepts a private communication in accordance with an authorization or any person who in good faith aids in any way a person whom he has reasonable and probable grounds to believe is acting with any such authorization;
. . .
178.12 [now 185] (1) An application for an authorization shall be made ex parte and in writing to a judge of a superior court of criminal jurisdiction, or a judge as defined in section 482 [now 552] and shall be 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 this section by
(a) the Solicitor General of Canada personally, if the offence under investigation is one in respect of which proceedings, if any, may be instituted at the instance of the Government of Canada and conducted by or on the behalf of the Attorney General of Canada, or
(b) the Attorney General of a province personally, in respect of any other offence in that province,
and shall be accompanied by an affidavit which may be sworn on the information and belief of a peace officer or public officer deposing to the following matters, namely:
(c) the facts relied upon to justify the belief that an authorization should be given together with particulars of the offence;
(d) the type of private communication proposed to be intercepted;
(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;
(e.1) [now 185(1)(f)] the number of instances, if any, on which an application has been made under this section in relation to the offence and a person named in the affidavit pursuant to paragraph (e) and on which the application was withdrawn or no authorization was given, the date on which each such application was made and the name of the judge to whom each such application was made;
(f) [now 185(1)(g)] the period for which the authorization is requested; and
(g) whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or that 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.
. . .
178.13 [now 186] (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.
(1.1) [now 186(2)] No authorization may be given to intercept a private communication at the office or residence of a solicitor, or at any other place ordinarily used by a solicitor and by other solicitors for the purpose of consultation with clients, unless the judge to whom the application is made is satisfied that there are reasonable grounds to believe that the solicitor, any other solicitor practising with him, any person employed by him or any other such solicitor or a member of the solicitor's household has been or is about to become a party to an offence.
(1.2) [now 186(3)] Where an authorization is given in relation to the interception of private communications at a place described in subsection (1.1), the judge by whom the authorization is given shall include therein such terms and conditions as he considers advisable to protect privileged communications between solicitors and clients.
(2) [now 186(4)] An authorization shall
(a) state the offence in respect of which private communications may be intercepted;
(b) state the type of private communication that may be intercepted;
(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 descriptio