Wiretap authorization

The court granted an authorization to intercept private communications, with some exceptions, and issued a strong reminder to the Crown and police regarding the need for concise and focused affidavits in such applications.

The endorsement references the Supreme Court’s guidance in R. v. Araujo, emphasizing that affidavits must be full and frank but also clear and concise, and should not include every minute detail of an investigation.

The judge warned that future affidavits exceeding 200 pages may be rejected for resubmission, citing the burden on judicial resources and the need for efficiency.

The applicants, Mahmoud Al-Ramahi and Atour Paul, sought a stay of proceedings or exclusion of evidence under ss. 24(1) and 24(2) of the Charter, alleging improper interception and handling of solicitor-client privileged communications during a wiretap investigation ("Project Siphon").

Al-Ramahi claimed widespread violations of his ss. 7 and 8 Charter rights due to intercepted audio calls and text messages with his lawyers.

Paul joined the application, arguing the overbroad search and "unfair advantage" to police affected him.

The court found that Al-Ramahi failed to prove improper interception or handling of audio calls but succeeded in demonstrating that his privileged text messages were improperly accessed and handled, breaching his ss. 7 and 8 rights.

The court dismissed the request for a stay of proceedings, finding it too drastic, but ordered the exclusion of all of Al-Ramahi's text messages intercepted after May 29, 2020.

Paul's application was dismissed as he did not suffer a breach of his own Charter rights and lacked standing to claim a remedy based on breaches of another's rights.

The appellant appealed his convictions and sentence, which were based on communications intercepted under judicial authorization.

At trial, a Garofoli motion challenging the authorization's validity due to redacted affidavits and inadequate summaries was dismissed, leading to conviction.

Subsequently, in two other prosecutions arising from the same investigation, the Crown conceded that further disclosure was necessary for the accused to make full answer and defence, which they could not provide without compromising confidential informants, resulting in stays of proceedings under s. 24(1) of the Charter.

The Court of Appeal admitted evidence from these subsequent proceedings, finding it in the interest of justice.

Given the Crown's concessions in related cases, the court determined that fairness required the appellant's prosecution also be stayed.

This consolidated appeal addressed the admissibility of evidence obtained through a wiretap authorization granted in 2016 for a 2009 murder investigation.

The Court of Appeal found that the authorization was improperly granted due to a lack of reasonable and probable grounds, as the affidavit failed to establish a credible-based probability that interceptions would yield evidence of the long-dormant homicide or that other investigative procedures were unlikely to succeed.

The court emphasized that a generic investigative plan and unsupported inferences of continued association among targets after several years were insufficient.

Consequently, the interceptions constituted a serious breach of Charter s. 8 rights.

Applying the Grant framework, the court upheld the exclusion of the evidence under Charter s. 24(2) due to the seriousness of the state conduct and the significant impact on privacy interests.

The appeals from conviction were allowed, and acquittals were entered, while the appeals from acquittal were dismissed.

The applicant challenged the warrantless seizure of his cellular phone subscriber information obtained by police during a Part VI wiretap authorization for a robbery investigation.

The applicant was not a suspect and was not named in the authorization.

Police obtained his subscriber information after intercepting an innocuous conversation between the applicant and a named target.

The court found that the seizure violated s. 8 of the Charter as it was not authorized by law.

The assistance order under s. 487.02 does not authorize expansion of investigations to unnamed persons without reasonable grounds.

The court excluded the subscriber information and any derivative evidence under s. 24(2), finding the breach serious and that admission would undermine public confidence in the rule of law.

Omnibus Garofoli application challenging the naming of multiple accused persons in two authorizations to intercept private communications issued in Project Kraken, an investigation into criminal activity by the Deep Waters and Chester Le gangs in Toronto.

The applicants challenged their inclusion as named targets in the first authorization (March 25, 2019) and second authorization (May 21, 2019), as well as the inclusion of Maral Ashoury's telephone number in an earlier Transmission Data Recorder warrant (February 11, 2019).

The court applied the deferential Garofoli standard of review and upheld the authorizations, finding sufficient reliable evidence that the interception of the applicants' communications could assist in the investigation of criminal organization offences.

The applicant, Ishmael Robinson, challenged his inclusion as a target in a wiretap authorization (Auth #1) under s. 185(1)(e) of the Criminal Code, seeking exclusion of intercepted communications under ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms.

He argued that the grounds in the information to obtain (ITO) were vague and stale.

The Crown contended that the grounds, viewed holistically, met the low threshold for naming individuals in an ITO.

The court dismissed the application, finding that the cumulative effect of the grounds established reasonable belief that the applicant's communications would assist the ongoing investigation, and the information was not stale given the large-scale nature of the criminal organization investigation.

The applicants brought a pre-trial application challenging a wiretap authorization, alleging a breach of their s. 8 Charter rights.

The authorization was sought in the investigation of a homicide that occurred 7.5 years prior.

The court conducted a facial inquiry of the supporting affidavit and found that it failed to establish reasonable and probable grounds that the wiretap would afford evidence of the homicide.

Specifically, there was no credible evidence or reasonable inference that the targets maintained contact or would communicate about the homicide after such a significant passage of time.

The court rejected the Crown's argument that judicial notice could be taken of ongoing communication, distinguishing the facts from cases involving active criminal organizations.

The sub-facial inquiry, which examined the Project Proposal, did not undermine the affidavit's veracity regarding the primary purpose of the investigation.

Consequently, the court found that the evidence obtained through intercepted communications was obtained in violation of the applicants' s. 8 Charter rights.

The application was scheduled to continue for argument on the exclusion of evidence under s. 24(2) of the Charter.

A lawyer was convicted of three offences arising from conversations with an undercover police officer posing as a refugee claimant.

The Crown alleged the appellant counseled the undercover officer to provide false information to immigration authorities.

The appellant appealed both conviction and sentence, challenging the validity of the wiretap authorization on the basis of material omissions and misrepresentations in the affidavit.

The trial judge found two errors in the affidavit but concluded they would not have affected the issuance of the authorization.

The Court of Appeal upheld the conviction, finding the trial judge's analysis was correct and her credibility findings were entitled to deference.

The sentence appeal was dismissed as the circumstances warranted a significant jail term given the seriousness of the offences and the appellant's professional status.

The applicant sought an order to excise information obtained through a Canadian Security Intelligence Service (CSIS) Act authorization, which was subsequently used by the Royal Canadian Mounted Police (RCMP) to secure a Criminal Code authorization for intercepting private communications.

The applicant alleged infringements of Charter s. 8 rights and the right to full answer and defence.

The court determined that the CSIS Act warrant met the minimum criteria for a lawful search, and the information derived from it did not violate s. 8.

Furthermore, the applicant's right to full answer and defence was not denied, as substantial disclosure of source documents related to the CSIS Act warrant had been obtained through prior third-party records applications.

Consequently, the application to excise the information was denied.

The applicants sought disclosure of the complete investigative file relating to a homicide investigation that formed the basis for wiretap authorizations under Part VI of the Criminal Code.

The Crown resisted disclosure, arguing that materials not explicitly relied upon in the Information to Obtain were irrelevant and protected by public interest privilege.

The court held that the accused's right to make full answer and defence applies to pre-trial evidentiary hearings, including Garofoli applications.

The court established that materials in the "investigative file" are presumptively relevant and should be disclosed, defined as all materials accumulated by the investigating agency as a consequence of its investigative efforts in the investigation giving rise to the authorization itself.

The court ordered disclosure of specified materials from the homicide investigation file, subject to redactions protecting informer privilege, while declining to order disclosure of the entire investigative file to prevent needless complexity.

The appellant sought judicial interim release pending appeal after being convicted of possession of heroin for the purpose of trafficking and trafficking a controlled substance for the benefit of a criminal organization, arising from investigations into Toronto-area gang activity.

The appellant's grounds of appeal concerned the legality of wiretap authorizations and general warrants, including issues regarding mobile device identifier technology, warrantless surveillance in condominium common areas, and the naming of the appellant as a known person.

The court found the appeal was not frivolous and granted bail pending appeal, subject to strict conditions including perfection of the appeal by January 12, 2018.

Appeal from a first degree murder conviction arising from the death of a victim who was strangled and subsequently subjected to post-mortem sexual interference.

The appellant challenged the admission of confessions made during a "Mr. Big" undercover operation, the validity of a one-party consent wiretap authorization, and the first degree murder conviction based on section 231(5)(b) of the Criminal Code.

The court upheld the conviction, finding that the Mr. Big statements were admissible under the Hart test, the wiretap authorization was properly issued, and the evidence supported a finding that the murder and sexual assault formed a single continuous transaction despite the post-mortem nature of some sexual acts.

The applicants challenged three Part VI authorizations to intercept private communications, arguing a lack of reasonable and probable grounds and investigative necessity.

The court found that the Information to Obtain (ITO) relied almost entirely on unproven tipsters, lacked sufficient detail and corroboration, and contained misleading information regarding applicant travel.

The court also found that investigative necessity was not established as other reasonable investigative methods were not adequately explored.

Consequently, the authorizations were deemed invalid, and the intercepted communications were excluded under s. 24(2) of the Charter.

The applicant, Kevin Wallace, charged under the Corruption of Foreign Public Officials Act, sought leave to cross-examine the affiant of an Information to Obtain (ITO) used to secure an authorization for private communications interception.

This application was part of a Garofoli challenge to the authorization.

The court granted leave to cross-examine on two specific areas: alleged misrepresentations and omissions regarding tipsters #1 and #4, and the asserted involvement of the applicant in a meeting in Dubai, particularly concerning conflicting travel information.

Leave was denied for questions regarding independent investigation/corroboration of tipster information and investigative necessity, as sufficient information was already available or cross-examination would not materially assist.

The applicant, charged with first-degree murder, sought to exclude 104 private communications intercepted under six wiretap authorizations, arguing violations of section 8 and 24(2) of the Charter.

The applicant alleged that the affiant failed to make full, frank, and fair disclosure in the Information to Obtain (ITO) for the first authorization, leading to invalidity of all subsequent authorizations.

The court reviewed the ITO for probable cause and investigative necessity, finding that despite some errors and omissions by the affiant, they were not intentional or grossly negligent and did not seriously distort the assessment of witness credibility.

The court concluded that the issuing justice had a sufficient basis to grant the authorizations, as probable cause and investigative necessity were established.

The motion to exclude the wiretap evidence was dismissed.

The accused brought a Garofoli application to exclude evidence obtained through omnibus warrants and search warrants, alleging insufficient material before the issuing judges and breaches of section 8 of the Canadian Charter of Rights and Freedoms.

The court addressed issues of standing, the excision of misleading expert opinion and irrelevant information from the Information To Obtain (ITO), and the sufficiency of confidential informant (CI) information for both predicate warrants (tracking and dialed number recorder warrants) and the main wiretap authorization.

The court found that all accused had standing, excised certain inflammatory and misleading portions of the ITO, but ultimately concluded that the predicate warrants met the lower "reasonable suspicion" standard and the wiretap authorization met the "best interests of justice" standard, supported by credible and corroborated CI information.

The application to exclude evidence was dismissed.

This is a Dawson Motion brought by multiple defendants in a drug and firearm investigation known as Project Wheeler.

The defendants sought leave to cross-examine the affiant who deposed to the affidavit in support of a wiretap authorization granted by a Superior Court judge.

The defendants challenged two areas: claims about possession of firearms and statements that observations about meetings were indicative of drug trafficking.

The court dismissed the application, finding that the defendants failed to demonstrate how cross-examination would undermine the preconditions for the wiretap authorization and that the allegations of sweeping generalizations and circular reasoning were not relevant to an attack on facial validity in the circumstances presented.

The applicants brought applications pursuant to Section 8 of the Charter of Rights and Freedoms challenging the validity of a production order directed to Telus, two Part VI wiretap authorizations, and search warrants executed in connection with Project Lancaster, an investigation into firearms trafficking and drug offences in Ottawa.

The applicants challenged the type of order used to obtain text messages, the sufficiency of grounds for the authorizations and warrants, and sought exclusion of evidence under Section 24(2) of the Charter.

The court dismissed all applications, finding that a production order was the appropriate mechanism for obtaining stored text messages, that the authorizing judges had sufficient grounds based on reliable and corroborated confidential informant information, and that the search warrants were properly issued.

The accused brought an application to exclude intercepted communications obtained pursuant to two Part VI authorizations under the Criminal Code and to exclude evidence obtained from two search warrants issued under section 487 of the Criminal Code.

The accused challenged the sufficiency of grounds, investigative necessity, and alleged bias on the part of the issuing Justice of the Peace.

The court found that the first authorization had sufficient grounds and that investigative necessity was established.

However, the court found a reasonable apprehension of bias due to a familial and commercial connection between the accused and the issuing Justice of the Peace.

While the search warrants were found to be invalid due to this bias, the court admitted the evidence under section 24(2) of the Charter, finding that exclusion would not serve the interests of justice given the good faith of police and the serious nature of the charges.