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FC: Canadian supreme court toughens wiretap rules
From: Declan McCullagh <declan () well com>
Date: Sat, 16 Dec 2000 22:11:26 -0500
********
Date: Fri, 15 Dec 2000 21:21:27 -0500
To: robyn wagner <noise () noisebox cypherpunks to>
From: Robert Guerra <robert () cryptorights org>
Subject: It's harder to get wiretapped in Canada now..I
Cc: Declan McCullagh <declan () well com>
I thought the following might be of interest.
regards
robert
http://cbc.ca/cgi-bin/templates/view.cgi?category=Canada&story=/news/2000/12/14/scoc_wiretap001214#links
(copy of court ruling to follow)
Top court clarifies wiretapping powers
WebPosted Thu Dec 14 19:52:11 2000
OTTAWA - Nine defendants acquitted of running a drug ring in Victoria are
headed for a new trial after the Supreme Court of Canada said rules over
police requests for wiretaps must be more stringent.
LINKS: Websites related to this story
In a 9-0 judgment Thursday, the top court clarified the test that judges
must use in approving investigative methods, such as electronic surveillance.
Under the Criminal Code, wiretapping is loosely defined as justifiable
where "other investigative procedures are unlikely to succeed."
The court gave further direction, saying police applying for the power to
wiretap must show that "there is no other reasonable alternative method of
investigation, in the circumstances of the particular criminal inquiry.
[....]
Opinion:
http://www.lexum.umontreal.ca/csc-scc/en/rec/html/grandmai.en.html
R. v. Araujo
Angela Araujo, Spencer Leslie, Appellants
Neil Grandmaison, Christina Khoury, Victor Camara,
Robert Jenkins, Tiffany Muriel Leslie,
Kevin Lathangue and Jolene Irons
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Araujo
Neutral citation: 2000 SCC 65. File Nos.: 26899, 26904, 26898, 26943, 26968.
2000: April 11, 12; 2000: December 14.
Present: McLachlin C.J. and L'Heureux-Dubé, Gonthier, Iacobucci, Major,
Bastarache, Binnie, Arbour and LeBel JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law -- Appeals -- Question of law -- Crown's appeal against
acquittals -- Issues on appeal concerning application and interpretation of
legal standard of investigative necessity for obtaining wiretap
authorization -- Whether Court of Appeal had jurisdiction to hear Crown's
appeal -- Criminal Code, R.S.C., 1985, c. C-46, s. 676(1)(a).
Criminal law -- Interception of communications -- Investigative
necessity requirement -- Nature and interpretation of requirement --
Whether affidavit materials submitted to obtain wiretap authorization
established investigative necessity -- Criminal Code, R.S.C., 1985, c.
C-46, s. 186(1)(b).
Criminal law -- Interception of communications -- Standard of review
for wiretap authorization -- Whether trial judge applied proper standard --
Approach to amplification.
Criminal law -- Interception of communications -- Affidavits -- Kind
of affidavit to be submitted on application for wiretap authorization.
The accused faced multiple charges related to their
cocaine-trafficking ring. Much of the Crown's evidence against them was
gleaned from information captured through wiretapping. The Crown had
obtained ex parte authorizations for its wiretaps from a judge by
submitting a 130-page affidavit, prepared and signed by R, a member of the
RCMP. The affidavit contained information from 10 confidential sources
denoted "A" through "J". Information from these sources came to R by way of
other officers who were their handlers. On a voir dire at trial, R was
cross-examined on the affidavit. After confused attempts at explaining
inconsistencies in the affidavit, R admitted that in several places the
affidavit referred erroneously to source "E", rather than to source "F". He
later testified that the reference should have been to source "C". R
admitted that he had known about this error several weeks before the trial.
He affirmed that he had forgotten about the matter, but suddenly remembered
it during the cross-examination. The trial judge indicated that R's lack of
credibility "permeate[d] the issue of reasonable and probable grounds", one
of the preconditions to the authorization, and concluded that the affidavit
should fall in its entirety. The Court of Appeal set aside the acquittals
of the accused and ordered a new trial.
Held: The appeal should be dismissed.
The Court of Appeal had jurisdiction under s. 676(1)(a) of the
Criminal Code to hear the Crown's appeal. The Court of Appeal examined the
combined interpretation and application of the legal standard of
investigative necessity. It also discussed the interpretation and
application of the standard of review for a judge reviewing a wiretap
authorization. The interpretation or application of a legal standard has
been recognized as a question of law.
Under s. 186(1)(b) of the Code, wiretapping may be accepted as an
appropriate investigative tool where "other investigative procedures are
unlikely to succeed". The correct interpretation of s. 186(1)(b)'s
investigative necessity requirement must be based on the text of the
provision read with a simultaneous awareness of two potentially competing
considerations: enabling criminal investigations and protecting privacy
rights. Wiretapping is highly intrusive and a judge should protect citizens
against unwanted fishing expeditions by the state and its law enforcement
agencies by granting an authorization only as far as need is demonstrated
by the material submitted by the applicant. In order to meet the
investigative necessity requirement, the applicant must establish in the
affidavit that, practically speaking, there is no other reasonable
alternative method of investigation, in the circumstances of the particular
criminal inquiry. Here, the Court of Appeal applied a standard inconsistent
with the words of the Criminal Code. In concluding that "in the case at
bar, there is no reason to impeach the choice of investigative techniques",
the court applied an "efficiency" rather than a "necessity" standard. This
approach is wrong in law and has the potential to subvert the safeguards of
privacy interests that are an essential component of the regulation of
wiretapping in the Code. Using the efficiency standard, wiretapping would
always be available to the police and would replace a standard of necessity
with one of opportunity at the discretion of law enforcement bodies.
However, the application of the proper test supports the conclusion reached
by the Court of Appeal that the authorizing judge could properly have
issued an authorization based on the facts disclosed in the affidavit. The
facts as set out in the affidavit met the investigative necessity standard.
The affidavit attested to the failure of police efforts in spite of the use
of physical surveillance and search warrants. It also provided evidence as
to why the use of informants or undercover agents trying to infiltrate the
drug ring would be ineffective and potentially dangerous. There was thus
evidence in the affidavit to negate arguments for other investigative
techniques and to make the case that wiretapping was, practically speaking,
the only reasonable alternative, taking into account the nature and purpose
of this particular investigation. The objective of a police investigation
-- to bring the higher-ups in a drug ring to justice -- rightly informs the
investigative necessity analysis. The police had more need for wiretapping
given that they were trying to move up the chain and catch the higher-ups
in the operation.
As a practical matter, in seeking permission to use wiretapping, the
police should submit an affidavit that sets out the facts fully and frankly
for the authorizing judge in order that he or she can make an assessment of
whether these rise to the standard required in the legal test for the
authorization. In addition, an affidavit should be clear and concise. It
should never attempt to trick its readers. On this point, the use of
boiler-plate language should be avoided. Finally, the affidavits should be
gathered from those with the best firsthand knowledge of the facts. This
would strengthen the material by making it more reliable.
The trial judge did not correctly apply the standard of review for a
wiretap authorization. A reviewing judge does not conduct a rehearing of
the application for the wiretap. The test is whether there was reliable
evidence that might reasonably be believed on the basis of which the
authorization could have issued. In considering the evidence, the reviewing
judge must exclude erroneous information. Amplification may correct such
information where the police had the requisite reasonable and probable
grounds and demonstrated investigative necessity but, in good faith, made
some minor, technical error in the drafting of their affidavit material.
There is no need to seek to amplify the record if sufficient reliable
material remains even after excising the erroneous material. In this case,
although the trial judge found R to lack credibility on the issue of why he
had not disclosed a minor drafting mistake, there is no suggestion that
there was ever any untruthfulness in the substance of the information in
the affidavit itself. In these circumstances, a global finding against the
entire affidavit was unreasonable. Even without the information from
sources "C" and "E", the affidavit would have provided ample evidence to an
issuing judge and evidenced the existence of probable grounds and
investigative necessity. Moreover, amplification would allow for the
reading of the information from the now correctly attributed sources "C"
and "E" as well. The Court of Appeal was correct in upholding the issuing
judge's authorization.
Cases Cited
Followed: R. v. Garofoli, [1990] 2 S.C.R. 1421; R. v. Bisson, [1994]
3 S.C.R. 1097, aff'g [1994] 1 R.J.Q. 308, 87 C.C.C. (3d) 440; R. v. Grant,
[1993] 3 S.C.R. 223; approved: R. v. Hiscock, [1992] R.J.Q. 895, 72 C.C.C.
(3d) 303, leave to appeal refused, [1993] 1 S.C.R. vi; R. v. Monroe (1997),
8 C.R. (5th) 324; R. v. Morris (1998), 134 C.C.C. (3d) 539; disapproved: R.
v. Paulson (1995), 97 C.C.C. (3d) 344; R. v. Cheung (1997), 119 C.C.C. (3d)
507; referred to: R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. Biniaris,
[2000] 1 S.C.R. 381, 2000 SCC 15; Hunter v. Southam Inc., [1984] 2 S.C.R.
145; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Commisso, [1983] 2 S.C.R. 121;
R. v. Thompson, [1990] 2 S.C.R. 1111; R. v. Lachance, [1990] 2 S.C.R. 1490;
R. v. Finlay and Grelette (1985), 23 C.C.C. (3d) 48; R. v. Playford (1987),
40 C.C.C. (3d) 142; R. v. Smyk (1993), 86 C.C.C. (3d) 63; R. v. Barbeau
(1996), 110 C.C.C. (3d) 69; R. v. Grant (1998), 130 C.C.C. (3d) 53; Rizzo &
Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; CanadianOxy Chemicals Ltd. v.
Canada (Attorney General), [1999] 1 S.C.R. 743; R. v. Madsen, [1988]
N.W.T.R. 82; R. v. Todoruk (1992), 78 C.C.C. (3d) 139; R. v. McCreery,
[1996] B.C.J. No. 2405 (QL); R. v. Shalala, [2000] N.B.J. No. 14 (QL);
Berger v. New York, 388 U.S. 41 (1967); Katz v. U.S., 389 U.S. 347 (1967);
U.S. v. London, 66 F.3d 1227 (1995); U.S. v. Torres, 901 F.2d 205 (1990);
U.S. v. Commito, 918 F.2d 95 (1990); U.S. v. Guerra-Marez, 928 F.2d 665
(1991); U.S. v. Milton, 153 F.3d 891 (1998); U.S. v. Smith, 31 F.3d 1294
(1994); U.S. v. Green, 40 F.3d 1167 (1994); Dalglish v. Jarvie (1850), 2
Mac. & G. 231, 42 E.R. 89; R. v. Kensington Income Tax Commissioners,
[1917] 1 K.B. 486; Re Church of Scientology and The Queen (No. 6) (1987),
31 C.C.C. (3d) 449; United States of America v. Friedland, [1996] O.J. No.
4399 (QL); Mitton v. British Columbia Securities Commission (1999), 123
B.C.A.C. 263; R. v. Allain (1998), 205 N.B.R. (2d) 201; R. v. Krist (1998),
113 B.C.A.C. 176; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Madrid (1994), 48
B.C.A.C. 271; R. v. Harris (1987), 35 C.C.C. (3d) 1, leave to appeal
refused, [1987] 2 S.C.R. vii.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 8.
Criminal Code, R.S.C., 1985, c. C-46, ss. 186 [am. 1993, c. 40, s. 6],
676(1)(a) [am. c. 27 (1st Supp.), s. 139].
Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522
(1994 & Supp. IV 1998).
Authors Cited
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths,
1983.
APPEAL from a judgment of the British Columbia Court of Appeal
(1998), 109 B.C.A.C. 131, 127 C.C.C. (3d) 315, [1998] B.C.J. No. 1558 (QL),
allowing the Crown's appeal from the acquittal of the accused on various
trafficking and related charges, and ordering a new trial. Appeal dismissed.
Adrian F. Brooks, for the appellant Araujo.
David N. Lyon, for the appellant S. Leslie.
Michael Code and Jonathan Dawe, for the appellant Grandmaison.
Robert C. Claus, for the appellant Khoury.
Michael J. B. Munro, for the appellant Camara.
Sidney B. Simons, for the appellants Jenkins, T.M. Leslie and Irons.
D. Mayland McKimm, for the appellant Lathange.
S. David Frankel, Q.C., and Peter W. Hogg, for the respondent.
Solicitor for the appellant Araujo: Adrian F. Brooks, Victoria.
Solicitor for the appellant S. Leslie: David N. Lyon, Victoria.
Solicitors for the appellant Grandmaison: Sack Goldblatt Mitchell,
Toronto.
Solicitors for the appellant Khoury: Green & Claus, Victoria.
Solicitor for the appellant Camara: Michael J. B. Munro, Victoria.
Solicitors for the appellants Jenkins, T.M. Leslie and Irons: Simons
McKenzie Law Corp., Victoria.
Solicitors for the appellant Lathange: Mayland McKimm & Associates,
Victoria.
Solicitor for the respondent: The Attorney General of Canada, Vancouver.
CITATION
Before publication in the S.C.R., this judgment should be cited using the
neutral citation: R. v. Araujo, 2000 SCC 65. Once the judgment is published
in the S.C.R., the neutral citation should be used as a parallel citation:
R. v. Araujo, [2000] x S.C.R. xxx, 2000 SCC 65.
LEBEL J. --
I. Introduction
1 This appeal involves the electronic interception of private
communications, popularly known as "wiretapping". Under what circumstances
can the police satisfy the investigative necessity requirement in s. 186(1)
of the Criminal Code, R.S.C., 1985, c. C-46, and obtain an authorization to
intercept private communications by electronic means? On what basis can a
trial judge review the decision to issue such an authorization? These
questions at the heart of this appeal have given rise to controversy and
varying appellate court approaches since our Court last considered them.
The reasons that follow will outline what I consider to be the proper
approach to these issues.
2 It should be noted that these reasons will not discuss the new s.
186(1.1) and related amendments adopted in 1997 which target criminal
organizations. These amendments were not invoked or examined in the case at
bar. The interpretation of the investigative necessity requirement in s.
186(1) and the issue of the standard of review on a wiretap authorization
are significant enough issues, which will affect many people.
3 The answers of our Court to these questions may have a substantial
impact on the privacy rights of a number of Canadians. Although we suggest
dismissing the appeal on the facts before our Court and affirm the Court of
Appeal's decision to order a new trial, the language used in the Court of
Appeal's reasons could lead courts to permit undue infringements on privacy
in other factual circumstances. These reasons must then discuss the nature
and interpretation of the investigative necessity requirement before
turning to an examination of the function of the reviewing judge at trial.
These reasons will also offer some suggestions as to how the police and
other participants in the justice system can avoid some of the problems of
the sort that have given rise to this appeal.
II. Factual Background
4 The appellants faced multiple trafficking, possession, conspiracy,
and weapons charges related to their cocaine-trafficking ring. Much of the
Crown's evidence against the appellants was gleaned, directly or
indirectly, from information captured through a wiretap. As is usual, the
Crown had obtained ex parte authorizations for its wiretaps by submitting
affidavit material to an authorizing judge. The main material in support of
the application was a long affidavit of some 130 pages, prepared and signed
by a member of the RCMP, Constable Rosset. This affidavit was largely based
on information gathered by Rosset from the handlers of ten police
informers. No affidavits were obtained from these handlers.
5 According to the affidavit material, a number of sources had
identified the appellants as running a drug trafficking operation in
Victoria with possible connections to a major, violent cocaine-trafficking
gang operating in Vancouver and the Lower Mainland. The appellants, who
were the primary targets of the potential wiretap, allegedly trafficked
cocaine in quantities up to the kilogram range. The police had conducted
previous investigations and executed warrants against some of the
appellants. They had also conducted a substantial surveillance operation on
the appellants. There was evidence that some of the appellants were
engaging at times in counter-surveillance tactics to throw investigators
off their tails. There was also reason to believe that standard
investigative procedures on their own would not be likely to catch the
higher-ups in the drug operation. In seeking an authorization for
wiretapping, the police hoped to use wiretaps in conjunction with other
investigative techniques in order to pursue the higher-ups in the
trafficking ring and to be able to gather evidence on not only trafficking
and possession charges but also on laundering and conspiracy offences.
6 At trial, when the Crown brought forth its authorizations under Part
VI of the Criminal Code for gathering wiretap evidence, counsel for the
accused cross-examined Constable Rosset in the voir dire, challenging the
validity of the wiretap. During cross-examination by defence counsel, it
emerged then that there were some serious problems with the affidavit
submitted to obtain the first authorization. It became clear that the
affidavit contained a number of errors of varying importance. In a number
of places, boiler-plate language used in the affidavit might have created a
mistaken impression that certain statements had been confirmed in ways that
they had not. However, the most important problem with the affidavit
concerned references to some of the sources.
7 The affidavit contained information from ten confidential sources
denoted "A" through "J". Information from these sources came to Constable
Rosset by way of other officers who were their handlers. There had been no
direct contact between Rosset and the informers. In the second day of
cross-examination, after repeated denials and confused attempts at
explaining inconsistencies in the affidavit and in his own evidence,
Constable Rosset had to admit that in several places the affidavit referred
erroneously to source "E", rather than to source "F". Later, during the
same cross-examination, Constable Rosset testified that the reference
should have been to source "C". Rosset admitted then that he had known
about this error several weeks before the trial, but had not mentioned it
either to his superiors or to the Crown prosecutor. In his testimony, he
affirmed that he had forgotten about the matter, but suddenly remembered it
during the cross-examination. The trial judge, Filmer Prov. Ct. J., did not
believe him. This finding of fact on the credibility of Constable Rosset
during the voir dire had a catastrophic impact on the Crown's case and
played a major role in the dismissal of the charges against the appellants.
III. Judicial History
A. British Columbia Provincial Court
8 In his factual findings at the voir dire, the trial judge found that
the mistake of Constable Rosset had been inadvertent but that his failure
to reveal it earlier had cast a "pall over Officer Rosset's credibility"
(A.R. p. 428). Filmer Prov. Ct. J. would then go on to extend his finding
on Constable Rosset's credibility to the entire affidavit, although he
accepted that the police officer had become aware of the error only well
after the submission of the affidavit (A.R. p. 428). He stated,
"[c]ross-examination of the deponent here has led to testimony which tends
to discredit the existence of one of the preconditions to the
authorization: to wit, the existence of reasonable and probable grounds"
(A.R. p. 426). Filmer Prov. Ct. J. considered that Constable Rosset's
credibility "permeates the issue of reasonable and probable grounds" (A.R.
p. 428) and thus concluded that the affidavit should fall in its entirety
(A.R. p. 432). In his opinion, the testimony of Constable Rosset tainted
the whole affidavit and rendered it unreliable.
9 Although he considered this sufficient reason to invalidate the
authorization, Filmer Prov. Ct. J. also discussed two other arguments.
First, he criticized the boiler-plate language in the affidavit, calling it
potentially confusing but not characterizing it as so confusing as to call
for rejecting the authorization if it had been the sole problem (A.R. p.
432). Second, he considered that the authorization had not been necessary
because the investigative necessity had not been made out, especially given
the possibility that the police might have conducted specifically directed
surveillance with a special investigative team of the RCMP, the Special
Operations Group (A.R. pp. 432-33). Thus, he decided that the authorization
should be rejected.
10 In the end, because he was of the opinion that the police had acted
in bad faith and because the courts cannot condone such conduct, Filmer
Prov. Ct. J. was prepared to exclude all evidence coming directly or
indirectly from the wiretaps. As a result, there was no evidence against
the accused, and Filmer Prov. Ct. J. acquitted the accused.
B. British Columbia Court of Appeal (1988), 127 C.C.C. (3d) 315
11 The Court of Appeal unanimously set aside the acquittals and ordered
a new trial. In a judgment by Braidwood J.A., it rejected Filmer Prov. Ct.
J.'s application of the standard of review to the wiretap authorization and
of the investigative necessity test.
12 According to Braidwood J.A., the trial judge had erred in applying
an inappropriate standard of review to the authorization. In his opinion,
the trial judge had failed to consider the nature of the errors, their
impact on the affidavit as a whole and whether there remained any further
evidence left on the basis of which the authorization could have been
granted. As Braidwood J.A. viewed it, the correct standard of review was
"whether, on the evidence, there was any basis on which the authorization
could have been granted..." (para. 10 (emphasis in original)). In the
circumstances, the error in denoting the sources was easily remedied by
reading the correct letters on review (para. 22). An inadvertent mechanical
error, even in combination with a non-credible explanation of why the error
was not corrected, did not take away from the existence of reasonable and
probable grounds that existed at the time the police sought the
authorization and that continued to exist at the time of the review (para. 23).
13 Braidwood J.A. went on to reject the trial judge's conclusion that
the affidavit had not satisfied the requirements of investigative
necessity. Based on previous case law from the British Columbia Court of
Appeal, Braidwood J.A. considered that "the key issue was whether or not
the authorizing judge could have concluded that the most efficacious way of
fully investigating all those involved was to permit the police to employ
wiretapping along with other investigative techniques" (para. 30 (italics
in original; underlining added)). On this standard, there was "no reason to
impeach the choice of investigative technique given the nature and
background of the numerous investigations, the prior experience with a
number of the accused, the counter-surveillance employed by some of the
accused, and the extent of the investigations in terms of time and
resources" (para. 33). He held that the trial judge had erred in applying
the correct legal test, that the authorization could have been granted and
that it should not have been disturbed.
14 Braidwood J.A. thus was of the view that the trial judge had erred
in law by not applying the appropriate test to the facts on the voir dire
and that the Court of Appeal should allow the appeal, set aside the
acquittals, and order a new trial.
IV. Relevant Statutory Provisions
15Criminal Code, R.S.C., 1985, c. C-46
186. (1) An authorization under this section may be given if the
judge to whom the application is made is satisfied
(a) that it would be in the best interests of the administration of justice
to do so; and
(b) that other investigative procedures have been tried and have failed,
other investigative procedures are unlikely to succeed or the urgency of
the matter is such that it would be impractical to carry out the
investigation of the offence using only other investigative procedures.
V. Issues
16 There are several issues on this appeal, which will be considered
successively. First, there is one preliminary issue: (A) whether there was
a jurisdictional bar to the Crown's appeal to the Court of Appeal. Second,
there are two main issues: (B) whether the factual circumstances revealed
in the affidavit met the s. 186(1) requirement of investigative necessity;
and (C) whether the trial judge applied correctly the standard of review
for a wiretap authorization, including the correct approach on amplification.
[bulk of opinion snipped. --dbm]
VII. Conclusion
62 For these reasons, which differ in part from those of the British
Columbia Court of Appeal, I would dismiss the appeal. In the result, the
judgment of the Court of Appeal setting aside the acquittals and ordering a
new trial would thus be upheld.
Appeal dismissed.
Solicitor for the appellant Araujo: Adrian F. Brooks, Victoria.
Solicitor for the appellant S. Leslie: David N. Lyon, Victoria.
Solicitors for the appellant Grandmaison: Sack Goldblatt Mitchell,
Toronto.
Solicitors for the appellant Khoury: Green & Claus, Victoria.
Solicitor for the appellant Camara: Michael J. B. Munro, Victoria.
Solicitors for the appellants Jenkins, T.M. Leslie and Irons: Simons
McKenzie Law Corp., Victoria.
Solicitors for the appellant Lathange: Mayland McKimm & Associates,
Victoria.
Solicitor for the respondent: The Attorney General of Canada, Vancouver.
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