COURT OF APPEAL FOR ONTARIO
O’CONNOR A.C.J.O., CRONK AND ARMSTRONG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
- and -
MICHAEL MOREY
Appellant
Fergus O’Donnell, for the respondent Peter Zaduk, for the appellant
Heard: September 19, 2002
On appeal from the conviction after trial before Justice Arthur Gans, sitting with a jury, dated January 20, 2000 and if leave be granted, appeal against the sentence imposed on March 3, 2000.
ARMSTRONG J.A.:
1After trial before Gans J. and a jury, Michael Morey, the appellant, was convicted of two counts of conspiracy to traffic in cocaine, one count of trafficking in cocaine, one count of possession of cocaine for the purpose of trafficking, one count of production of marijuana, two counts of possession of marijuana for the purpose of trafficking and one count of possession of cannabis resin for the purpose of trafficking. He was sentenced to a cumulative sentence of seven years imprisonment. The court also ordered the forfeiture of $45,400 in cash.
2Mr. Morey appeals his convictions and seeks leave to appeal the sentence of seven years.
3Much of the evidence led by the Crown was derived from telephone wiretaps pursuant to an authorization issued by Justice John Hamilton of the Superior Court of Justice on May 9, 1997. The appellant sought to exclude the evidence and brought a Garofoli application before the trial judge in which he alleged a breach of his right to be secure against unreasonable search or seizure pursuant to s. 8 of the Canadian Charter of Rights and Freedoms. See R. v. Garofoli (1990), 1990 52 (SCC), 60 C.C.C. (3d) 161 (S.C.C.). After a voir dire, the trial judge denied the application and admitted the impugned evidence. The ruling of the trial judge, admitting the wiretap evidence, is the focus of the conviction appeal.
BACKGROUND
4In May and June 1997, intercepted communications indicated that Mr. Morey was directing a drug distribution network with the assistance of Mark Oleksiuk. Police surveillance observed the appellant at pay telephones and in meetings with Oleksiuk.
5The appellant was also involved with Oleksiuk in managing a hydroponic marijuana production operation located in an apartment in Scarborough. A search warrant, executed at the apartment on 2 occasions, revealed 13 mature (4 to 5 feet high) marijuana plants, 22 small plants and various pieces of cultivation equipment. Also found during one of the searches of the apartment were a quarter kilogram of cocaine, 9.5 grams of cocaine, a jar of dextrose, an electronic scale, plastic baggies, a metal press and other drug paraphernalia.
6The appellant apparently expected the likelihood of wiretaps and used what is described in his counsel’s factum as “guarded, cryptic language…and a system of pagers, cellular telephone and pay telephones in an effort to avoid police detection.” The appellant was heard during the wiretapped conversations to admonish others for using incriminating language.
7Oleksiuk was arrested in the stairwell of the apartment building in late June 1997. In a subsequent telephone call with Oleksiuk’s girlfriend, which was intercepted, the appellant was heard to discuss Oleksiuk’s arrest and his stupidity in leaving “the other thing” (cocaine) in the apartment. In the same conversation, the appellant referred to Oleksiuk as “working for me”. Also in the same conversation, the appellant remarked that what Oleksiuk had to worry about was “the people that I know…if they find out that…he’s even in there (jail), it’s not going to be happy…it’s not going to be a nice scene at all, believe me.”
8With Oleksiuk in jail, the appellant started using another distributor, Matthew Elliott, as his lieutenant. Intercepted telephone calls between the appellant and Elliott and others provided additional evidence of the appellant’s involvement in drug trafficking, as did police surveillance of his activities. The appellant was arrested on July 3, 1997.
The Wiretap Authorization and the Garofoli Application
9The appellant first came to the attention of the RCMP in 1995 during a drug investigation initiated in Newfoundland. That investigation revealed that the appellant, who resided in the Toronto area, was involved in the illicit drug trade with one of the targets of the Newfoundland investigation.
10The RCMP did not pursue a full-scale investigation of the appellant until 1997 due to lack of resources. Early in that year, they began to focus their attention on the appellant. They conducted a number of background checks involving information provided by an informant, which included addresses, telephone numbers, vehicle registrations and places of employment. They also conducted surveillance of the appellant’s activities on 19 occasions.
11The application for the wiretap authorization was supported by an affidavit of Constable Cecil Young of the RCMP, a member of the force’s Newmarket Drug Section. Young had been a drug investigator since 1994. His affidavit indicated that he had received information regarding the appellant from an informant who had purchased narcotics in the past from the appellant, whom the informant had known for several years.
12Constable Young deposed in his affidavit that from January 1996 to March 1997, he had received information from the informant “indicating that Morey is a drug trafficker and involved with receiving cocaine and cannabis resin (hashish) from Quebec for distribution in Ontario, Nova Scotia and Newfoundland and Labrador”.
13Constable Young’s affidavit detailed a number of activities of the appellant concerning his involvement in the drug trade. The affidavit referred to persons with whom the appellant engaged in drug activities based upon information obtained from the informant. The informant also provided information concerning the appellant’s modus operandi including his use of a pager, cell phones and pay phones.
14During cross-examination on the voir dire to determine the admissibility of the wiretap evidence, Constable Young revealed that the informant had not had any contact with the appellant for approximately 11 months prior to Constable Young swearing his affidavit. Appellant’s counsel noted that Constable Young consistently employed the present tense in his affidavit and had left the impression that the information was current when, in fact, it was at least 11 months old.
15During cross-examination Constable Young also admitted that he did not ask his informant when in the past he had purchased narcotics from the appellant. He agreed in hind-sight that he should have made such an inquiry but had overlooked it.
16Appellant’s counsel was also able to demonstrate that Constable Young had failed in many instances to obtain from his informant particulars of the specific drug dealings with other persons referred to in his affidavit.
17On the voir dire, the appellant advanced several arguments. The following were the principal submissions considered by the trial judge:
The affidavit of Constable Young was purposely mis-leading in that he used the present tense thereby creating the impression that the information was current when he knew that the informant had not spoken to the appellant in approximately 11 months. The appellant buttressed this branch of the argument by submitting that the informant was not reliable because he had not been tested in previous cases.
Since the information was stale dated, it could not support a reasonable belief that the wiretap would afford evidence that a crime had been or was being committed.
The police failed to establish that there was investigative necessity for the authorization.
18On the issue of whether Constable Young had purposely misled the authorizing judge, the trial judge concluded that he had benefited from observing the officer on the witness stand. He stated:
While, from time to time, I was frustrated by the manner in which he testified, I do not doubt that his demeanour was coloured by his desire to shelter the identity of the informer. I have concluded, after watching him for more than two days, that his testimony before me and the turn of phrase used in the affidavit were devoid of guile. Such were actuated, in my opinion, by, perhaps, inexperience or a genuine belief that what was being done was not meant to deceive. He was truly of the belief that the information he was receiving from the informer was the “straight goods”, to use the vernacular. He had no reason to believe otherwise. I would observe, parenthetically, that even though the affidavit was reviewed by Constable Young’s immediate superior, and a Department of Justice lawyer, it did appear at times somewhat “inelegant” and often confused.
I therefore hold, from a review of the affidavit writ large and the limited use to which I make of the amplified record that there is nothing, over-all, which would mislead Hamilton J. In any event, if the tense employed to describe the informer’s evidence was confusing, which at times it was, such was not, as I have found, done purposefully.
19The trial judge also concluded that the evidence was sufficient to establish reasonable and probable grounds that the appellant was, at the date when the affidavit was sworn, engaged in the commission of a crime. The trial judge reached his conclusion “from a review of the altered or expurgated version of the affidavit”. He reviewed “those items ‘remaining’, regardless of the timing of their occurrence…which…provide[d] reasonable and probable grounds…” that the appellant was involved in illicit drug trafficking.
20The trial judge made specific reference to the 1995 wiretap in the Newfoundland investigation. He also took into account the information related to the appellant’s associations and connections in the illicit drug trade except for his brother and his nephew.
21He accepted that the background checks done by the police and the surveillance carried out on the appellant confirmed the reliability of the informant’s information.
22Finally, the trial judge concluded that the applicant for the wiretap authorization had discharged the obligation of establishing investigative necessity.
The Appellant’s Position in this Court
23In his factum and in his oral argument, the appellant made several submissions, some of which were overlapping. His submissions can be summarized as follows:
(i) he reasserted his argument that the affidavit of Constable Young was purposely misleading;
(ii) the trial judge erred in failing to excise the misleading evidence from his review of the wiretap authorization;
(iii) the trial judge applied the wrong test as a basis for considering the amplified record; and
(iv) there was insufficient evidence to support the wiretap authorization on any basis – with or without the amplified record and whether or not the alleged misleading evidence was excised.
Analysis
24I start with the applicable standard of review which a trial judge must apply when considering an authorizing judge’s order. As stated by Sopinka J. in R. v. Garofoli, supra, at page 188:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If based on the record which was before the authorizing judge as amplified on review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
It is clear that the trial judge was alive to the direction of Sopinka J. He expressly repeated the admonition that a trial judge is not entitled to substitute his or her view for that of the authorizing judge.
25It is also important to be mindful of the standard which this court must apply to its review of a trial judge’s decision on a Garofoli application. The standard is succinctly described by Charron J.A. in R. v. Grant (1998), 1999 3694 (ON CA), 132 C.C.C. (3d) 531 at 540 (Ont. C.A.):
This court is also a reviewing court and the test in Garofoli is applicable on this appeal. In addition, the usual deference is owed to the findings of the trial judge in her assessment of the record “as amplified on the review” and her disposition of the s. 8 application. In the absence of an error of law, a misapprehension of the evidence or a failure to consider relevant evidence, this court should not interfere with the trial judge’s conclusions. [Emphasis added]
26I turn now to consider the specific submissions of the appellant.
(i) The affidavit of Constable Young was purposely misleading.
27The trial judge was aware of the deficiencies in Constable Young’s affidavit and made particular reference to Young’s inadvisable use of the present tense in regard to events that were at least 11 months old. The trial judge concluded that the deficiencies in Young’s affidavit were not intended to mislead but were the product of inexperience or a genuine belief that the information that he was receiving from the informant was the “straight goods”. I do not think it can be said that the trial judge misapprehended the evidence. He was clearly entitled and required to assess Constable Young’s credibility. He did so, and I defer to his assessment. I therefore would not interfere with the trial judge’s conclusion that the affidavit of Constable Young was not purposely misleading.
(ii) The trial judge’s failure to excise misleading evidence from his review.
28It was the appellant’s submission that those paragraphs from Constable Young’s affidavit which relate to the information obtained from the informant should have been excised from the trial judge’s review. According to the appellant, if he had done so, the record would have been bereft of sufficient evidence to support the wiretap authorization.
29As already indicated, the trial judge did consider the affidavit of Constable Young on an “expurgated” basis and concluded that there was sufficient evidence to support the authorization. As I comprehend the appellant’s submission, the trial judge either did not “expurgate” sufficient evidence or he simply misapprehended the evidence after the expurgation exercise.
30In my review of the trial judge’s reasons, I am unable to ascertain what he meant when he referred to the “altered or expurgated version of the affidavit”. No where did he set out precisely what it is that he has excised or expurgated from the affidavit of Constable Young. I have tried to determine what has been expurgated by reviewing what he expressly accepted as sufficient evidence for the authorization on the assumption that he excluded everything else. However, such an exercise produces no more than conjecture on my part.
31If it is not possible to ascertain what is the altered or expurgated version of the affidavit, it is not possible to determine, as submitted by the appellant, whether or not the trial judge erred in failing to excise the alleged misleading evidence from his review of the wiretap authorization
(iii) The trial judge applied the wrong test in admitting the amplified record.
32The appellant argued that the Crown could not rely on the amplified record which emerged from the cross-examination of Constable Young because, in his submission, Constable Young and the police, in their investigation and the preparation of the Young affidavit, failed to act in good faith. R. v. Aroujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 at paras. 57 and 59 (S.C.C.) is cited as authority for this proposition. The appellant argued that the trial judge applied an incorrect test of deliberate falsehood to the conduct of the police. As a result, he was disentitled to consider the amplified record.
33Although the trial judge did not use the words “good faith” in considering the conduct of Constable Young and the police, there can be no doubt that his finding of credibility in regard to Constable Young is tantamount to a finding of good faith. The trial judge’s reference to the Young affidavit as devoid of guile and lacking the intention to deceive confirms the judge’s view that there was no failure of good faith on the part of Constable Young and his associates.
34However, the fact that the trial judge employed the correct test is not the end of the matter. I have a concern as to precisely what the trial judge meant when he said he made limited use of the amplified record. He does not define the limited use nor what he included in the record as a result of the amplification. I am prepared to say that the limited use of the amplified record likely refers to the viva voce evidence of Constable Young which he used for the purpose of assessing his credibility. However, I cannot be sure that the trial judge may not be referring to something more.
(iv) There was insufficient evidence to support the wiretap authorization on any basis.
35In the view I take of the trial judge’s failure to define what he meant by the altered or expurgated version of the affidavit of Constable Young and the limited use of the amplified record, I am not able to conclude whether he was correct in his conclusion that the authorizing judge could have granted the wiretap order. Put another way, I cannot be persuaded whether there was or was not a breach of s. 8 of the Charter. However, on the assumption that there was a s. 8 Charter breach, I move to a s. 24(2) analysis.
Section 24(2) of the Charter
36The trial judge held that he would not have excluded the wiretap evidence under s. 24(2) of the Charter even if he had found a violation of s. 8. I agree with him. He found that Constable Young had acted in good faith in that his supporting affidavit was “devoid of guile”. The admission of the evidence did not, in my view, affect the fairness of the trial. The admission of the wiretap evidence would not have brought the administration of justice into disrepute. See R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265. Indeed as Doherty J.A. said in R. v. Lewis (1998), 1998 7116 (ON CA), 38 O.R. (3d) 540 at 554 when discussing the exclusion of cocaine obtained in an unlawful search:
There can be no doubt that the exclusion of this kind of evidence exacts a heavy toll on the repute of the administration of justice.
Sentence Appeal
37At trial, counsel for the appellant submitted that the appropriate sentence was “marginally below five years”. The Crown asked for a sentence of 10 to 12 years. The trial judge imposed a cumulative sentence of seven years with a recommendation for early parole.
38The appellant submitted that the cumulative sentence of seven years is harsh and excessive in all the circumstances, and that it lies beyond the range of a sentence appropriate for the offences committed by the appellant. Counsel made reference to the following factors considered by the trial judge:
a. he had no relevant criminal record and should be treated as a first offender;
b. although he ran an extensive drug operation, it was “not terribly profitable”;
c. he grew marijuana and dealt in marijuana and hashish in the “multi-kilo” level;
d. he was 37, in a common law relationship and was a doting father to a child “for whom he cares deeply”;
e. he maintained his own construction business, had stayed out of trouble since his arrest three years before and “is clearly an individual of more than modest ability and skills, and has demonstrated that he can be a very useful member of society.”
39Counsel for the Crown submitted that the appellant was the directing mind and will of a significant, long-term trafficking organization. His sentence ought to reflect that fact and the sentence imposed by the trial judge did so.
40In sentencing the appellant, the trial judge made the following comments:
I do not intend to review the evidence adduced by the Crown in its painstaking presentation which spanned some nearly six weeks of trial. Suffice it to say that Mr. Morey was engaged in a reasonably high level and sophisticated drug trafficking operation of which he was at the virtual apex. He had, from time to time, different minions located on the front lines of trafficking who naturally did his bidding, even though they were constantly at risk of detection. He, on the other hand, was able to insulate himself from the vagaries associated with direct involvement, until the wheels fell off the wagon in late June, 1997. I assume that he purposefully set up his network in this fashion to avoid sullying himself, while maintaining a partial aura of respectability as a contractor and builder.
All that having been said, there is no doubt that the Morey operation was extensive, dealt fairly large quantities of drugs, although from some of the evidence, perhaps, not terribly profitably. It seems also that until June 17, 1997 he was able to function without incident, as it were, but for the usual problems associated with accounts receivable. The multi-kilos of hashish and marijuana found at Deekshill, the crop in full bloom festooning the Eglinton Avenue apartment, and the 15 or so ounces of cocaine and related paraphernalia found on two occasions scattered throughout the apartment underscore the width and breadth of operation.
41The trial judge also expressly considered the relevant principles of sentencing and provided cogent reasons for his conclusion that seven years was the appropriate sentence. I cannot discern that the trial judge committed any error in principle, nor can I conclude that the sentence is manifestly unfit. In accordance with the direction in R. v. Shropshire (1995), 1995 47 (SCC), 102 C.C.C. (3d) 193 (S.C.C.), I must defer to the trial judge’s judgment on sentence.
Conclusion
42In the result, the appeal as to conviction is dismissed, the application for leave to appeal sentence is granted and the appeal as to sentence is dismissed.
RELEASED:
“MAY –1 2003” “Robert P. Armstrong J.A.”
“DOC” “I agree D. O’Connor A.C.J.O.”
“I agree E.A. Cronk J.A.”