Wiretap authorization

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.

Four co-accused appealed convictions arising from a large-scale police investigation into criminal gang activity in Toronto (Project Battery and Project Rx).

The appellants challenged the constitutionality of wiretap authorizations and general warrants, alleging violations of section 8 of the Canadian Charter of Rights and Freedoms.

The key issues involved: (1) material non-disclosure regarding the use of a Mobile Device Identifier (MDI); (2) warrantless police entries into common areas of condominium buildings; and (3) warrantless installation of hidden surveillance cameras in condominium hallways.

The Court of Appeal upheld the convictions but found that the warrantless installation of hidden cameras violated section 8 rights.

However, the evidence was admitted under section 24(2) of the Charter.

The appellants' convictions were dismissed except for a one-year sentence reduction for one appellant due to the trial judge's misapprehension of evidence regarding drug quantities.

The applicants, charged with robbery, assault, and weapons offences, brought a pre-trial application to exclude evidence obtained through intercepted communications.

The court previously found that the wiretap authorization was issued without reasonable and probable grounds, violating the applicants' s. 8 Charter rights.

Applying the Grant framework under s. 24(2) of the Charter, the court found the state conduct to be at the more serious end of the spectrum and the impact on the applicants' privacy rights to be significant.

The court concluded that admitting the evidence would bring the administration of justice into disrepute and ordered the intercepted communications excluded.

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.

The appellant was convicted of two counts of conspiracy to traffic in a controlled substance following a complex multi-party prosecution involving 23 individuals charged on a 65-count information.

The trial took place approximately 41.5 months after the charges were laid.

The appellant appealed on two grounds: first, that the delay breached his Charter rights under s. 11(b) pursuant to the principles established in R. v. Jordan; and second, that evidence obtained from wiretap authorization should have been excluded because the issuing justice for the initial dial number recorder warrants demonstrated reasonable apprehension of bias by providing correspondence to the police officer seeking clarification on the Information to Obtain.

The Court of Appeal dismissed the appeal, finding that the trial judge correctly attributed the delay and that the delay fell below the presumptive ceiling when accounting for discrete exceptional circumstances, complexity, and transitional circumstances.

The court also found no reasonable apprehension of bias, as the issuing justice's correspondence sought appropriate clarification to assess the reliability of information rather than directing the drafting of the warrant application.

The appellant was convicted of two counts of first degree murder arising from the deaths of two sex trade workers found in different locations in the Niagara Region approximately 29 months apart.

Both victims died of blunt-force trauma to the head, and blood of both victims was found in the appellant's residences.

The trial judge admitted evidence of one count as similar act evidence on the other count and refused to sever the counts.

The trial judge also refused to discharge a juror who had a prior acquaintance with the victim's stepmother, and declined to leave manslaughter as an included offence.

The Court of Appeal found multiple errors: the similar act evidence did not meet the required threshold of striking similarity, the juror should have been discharged to preserve the appearance of fairness, and manslaughter should have been left to the jury.

The court also addressed a Charter breach regarding live monitoring conditions in wiretap authorizations but found the evidence admissible under section 24(2).

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 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.

In a criminal bribery prosecution, the appellant international financial organization challenged a third party production order and subpoenas issued in support of a Garofoli wiretap challenge.

The Court held that archival and personnel immunities under the Bretton Woods and Related Agreements Act applied to records and investigators of the organization’s integrity unit, and no waiver was established.

The Court further held that, in the Garofoli context, third party production requires a reasonable likelihood of probative value to the affiant-knowledge issues, not broad relevance to trial truth.

Because that threshold was not met, the production order was set aside.

Several accused brought Garofoli applications seeking exclusion of evidence obtained through multiple Part VI wiretap authorizations in a large drug trafficking investigation.

They argued the affidavits failed to establish reasonable and probable grounds and improperly named them as known parties under s. 185(1)(e) of the Criminal Code.

The court held that one authorization related to a homicide investigation lacked sufficient grounds on the edited record and therefore violated s. 8 of the Charter; intercepted room‑probe communications from a residence were excluded under s. 24(2).

However, the court found that the principal drug trafficking wiretap authorizations were supported by reasonable grounds based on confidential informant information, surveillance, phone records, and associations among targets.

Applications to exclude evidence obtained under those authorizations were dismissed.

The accused applied for leave to cross‑examine the affiant of an Information to Obtain supporting a Part VI authorization, intending to challenge the authorization through a Garofoli application.

The accused argued that the police agent’s reliability problems and alleged investigative failures undermined the grounds relied upon in the ITO.

The court reviewed the governing principles from Garofoli and subsequent authorities requiring a reasonable likelihood that cross‑examination would elicit evidence capable of undermining a precondition to the authorization.

After reviewing numerous proposed areas of questioning relating to the agent’s credibility, background, and post‑authorization conduct, the court concluded they concerned minor matters, speculative issues, or information arising after the authorization was granted.

The court held that cross‑examination would not assist in discrediting the grounds for the authorization.

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.

Accused persons charged following a large police investigation sought disclosure of source materials underlying wiretap authorizations to support anticipated Garofoli and Dawson applications.

The defence argued that all investigative materials, including pre‑Part VI materials referenced or relied upon by the affiant, were presumptively relevant and disclosable under Stinchcombe principles.

The Attorney General of Ontario argued that disclosure should be limited to materials relevant to the accused’s ability to make full answer and defence at trial unless the defence first demonstrated a reasonable possibility that additional materials would assist in challenging the authorization.

The court acknowledged conceptual difficulties with the Crown’s narrower approach but held that existing authorities required an accused to meet a minimal relevance threshold before obtaining additional disclosure beyond what was before the authorizing judge.

Applying principles of judicial comity and following prior decisions adopting that approach, the court dismissed the disclosure applications.

Thirty‑three accused sought exclusion of wiretap evidence arising from “Project Marvel,” a large police investigation into shootings, robbery, and organized gang activity in Toronto.

The applicants argued the authorizations violated s. 8 of the Charter because the police failed to establish “investigative necessity” under s. 186(1)(b) of the Criminal Code and improperly named certain individuals as “known persons” under s. 185(1)(e).

The court applied the deferential Garofoli review standard and held the authorizing judge had a reasonable basis to conclude investigative necessity existed despite alternative investigative techniques such as cell‑phone analysis.

The court further held that the challenged individuals were properly named as targets because interception of their communications could assist the investigation and the statutory threshold is low.

A separate sub‑facial challenge relating to the search of a backyard shed and the curtilage doctrine was also rejected.

The applicants brought a Garofoli application challenging the validity of wiretap authorizations and related investigative orders obtained during an organized crime investigation into drug importation through Toronto Pearson International Airport.

They alleged that a police officer deliberately misled judicial officers through fraudulent or misleading statements and omissions in affidavits supporting production orders, dialled number recorder warrants, and the wiretap authorization.

The court reviewed allegations of misstatements, non‑disclosure, and conflation of information and applied the Garofoli framework, including excision and amplification of affidavit material where appropriate.

The court concluded that the inaccuracies were innocent errors rather than deliberate fraud and that, after correcting the affidavit, sufficient grounds remained to justify the authorization.

As a result, no Charter breach under s. 8 was established and the wiretap evidence remained admissible.

The defendants applied for leave to cross-examine the affiant and sub-affiant on an application for authorization to intercept private communications, in the context of a Garofoli challenge.

They argued that investigative necessity had not been established and that police prematurely resorted to wiretap authorizations instead of pursuing conventional investigative techniques such as surveillance, informant development, and tracking orders.

The Crown opposed the request, submitting that the authorization materials fully described the investigative steps taken and that cross-examination was unnecessary.

The court held that there was no basis to permit cross-examination, noting there was no suggestion the affiant misled the authorizing judge and that the Garofoli review would proceed based on the existing materials.

The application for cross-examination was dismissed.

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.

The applicants sought to exclude text messages obtained by police through a production order directed to a telecommunications provider, arguing that the messages constituted private communications requiring a wiretap authorization under Part VI of the Criminal Code.

The court accepted that text messages attract a reasonable expectation of privacy but held that the statutory regime governing interceptions applies only to contemporaneous surveillance of communications.

The retrieval of stored text messages from a service provider after the communication had occurred did not amount to an interception.

The court found that the use of a production order under s. 487.012 of the Criminal Code was the proper legal mechanism and did not violate s. 8 of the Charter.

The applicants sought exclusion of wiretap evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms on the basis that Part VI authorizations were obtained using an unsigned and improperly commissioned affidavit, and allegedly lacked investigative necessity and reasonable grounds.

The court heard viva voce evidence from the affiant officer and the commissioner of oaths regarding irregularities in the affidavit commissioning process.

The court found the deficiencies were mechanical errors made in good faith and concluded the affidavit evidence had nevertheless been sworn and was trustworthy.

Applying the principles governing review of wiretap authorizations, the court held the record demonstrated investigative necessity and reasonable and probable grounds.

The motions to exclude the intercepted communications were dismissed.