COURT OF APPEAL FOR ONTARIO
DOHERTY, LASKIN and FELDMAN JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Susan G. Ficek for the appellant
Appellant
Leslie Maunder for the respondent Nugent
- and -
Michael J. McDonald PHILLIP NUGENT and KWAME LYN for the respondent Lyn
Respondents
Heard: January 11, 2005
On appeal from the acquittals entered by Justice Ian V.B. Nordheimer of the Superior Court of Justice dated September 29 and 30, 2003.
DOHERTY J.A.:
1The respondents Phillip Nugent and Kwame Lyn were charged with conspiracy to break and enter and commit theft, and breaking and entering and committing theft. The Crown alleged that they broke into a classroom at York University where the respondent Lyn was attending classes and stole some electronic equipment.
2The Crown’s case depended in large measure on six communications between the respondents in August 2001. These conversations were surreptitiously intercepted under the authority of an authorization granted by a Justice of the Ontario Superior Court. The authorization was granted in connection with a series of bank robberies the police suspected had been committed by a group of individuals. Rohan Nugent, who lived with his brother Phillip Nugent, was one of the prime suspects in the bank robberies. Both respondents and other individuals were named in the authorization.
3At the outset of the trial, neither accused challenged the authorization. In the course of the trial, however, counsel for Nugent brought an application under s. 8 of the Charter claiming that Nugent was improperly named in the authorization and that consequently the interceptions of his conversations infringed his rights under s. 8. When counsel for Nugent brought the application at trial, he initially moved only to exclude conversations between his client and persons other than Lyn. It would appear that the Crown was relying on only one such conversation. Counsel acknowledged that even if Nugent was not properly named in the authorization, it would not affect the admissibility of the conversations involving both Nugent and Lyn since Lyn was named in the authorization and was not challenging its validity.
4Nugent did not challenge the adequacy of the information contained in the affidavit relied on to obtain the authorization as a basis for naming him. He did, however, contend that one vital piece of information relied on by the police to obtain the authorization against him was inaccurate. He argued that without this piece of information, there were insufficient grounds to name him in the authorization. The evidence called by Nugent on the voir dire established that this piece of information, an observation purportedly made by a surveillance officer, was in fact wrong.
5The trial judge held that without the inaccurate information, there was not a sufficient basis to name Nugent in the authorization. Consequently, the Crown could not rely on the authorization to justify intercepting his conversations. The trial judge found that the interceptions breached Nugent’s rights under s. 8 of the Charter. He went on to hold that all of the conversations involving Nugent should be excluded under s. 24(2). He later extended that ruling to exclude the conversations as against Lyn as well. Without the excluded conversations, the Crown had no reasonable prospect of conviction. The respondents were acquitted.
6The Crown appeals. I would allow the appeal and order a new trial for both Nugent and Lyn.
Was there a breach of Nugent’s s. 8 rights?
7In holding that absent the inaccurate information, the affidavit did not provide a sufficient basis for naming Nugent in the authorization, the trial judge said:
Absent the information regarding the purchase, the police did not have probable grounds for believing that Phillip Nugent was engaged in possible criminal activity.
8The trial judge erred in holding that the police were required to have probable grounds implicating Nugent in the criminal activity before he could be properly named as a target in the authorization. As this court said in R. v. Schreinert (2002), 165 C.C.C. (3d) 295 at 308:
The threshold for naming a party as a “known” party is a low one. Police need not have reasonable and probable grounds to believe that the party is involved in the commission of an offence. Rather, it is sufficient if police know the identity of the party and have reasonable and probable grounds to believe that interception of that party’s communications may assist in the investigation of an offence.
9Instead of deciding whether the information in the affidavit provided reasonable grounds to believe Nugent was involved in the bank robberies, the trial judge should have considered whether that information provided reasonable grounds to conclude that the interception of Nugent’s communications could assist in the investigation of the bank robberies. The trial judge should have determined whether the information remaining in the affidavit (after excising the inaccurate information) provided a sufficient link between Nugent and the offences, or between Nugent and others involved in the offences to provide reasonable grounds to conclude that the interception of his communications could assist in the investigation of those robberies.
10In oral argument, the Crown contended that the affidavit material, absent the incorrect information, established a sufficient link between Nugent, Lyn, Rohan Nugent and some of the stolen money to warrant the interception of Nugent’s conversations. It will be for the trial judge at the new trial to determine the merits of this argument. I would add that even though the respondents did not challenge the adequacy of the information in the affidavit as sworn, that is an open question on the new trial.
11The trial judge made a second error in concluding that Nugent’s s. 8 rights were violated. Nugent’s claim that his rights under s. 8 were infringed depended on Nugent establishing that the interception of his conversations was unlawful in that it was not the subject of a proper prior judicial authorization. Even if Nugent was improperly named in the authorization, it did not automatically follow that the interceptions of his communications with Lyn were unlawful and, therefore, in violation of his privacy rights. Lyn was named in the authorization. It was not argued that Lyn was not properly named based on the information in the affidavit. If the interceptions of the conversations between Lyn and Nugent were within the four corners of the authorization as it applied to Lyn, those interceptions were lawful and would not infringe Nugent’s constitutional right to privacy, even if Nugent was not properly named in the authorization. Nugent carried the burden of demonstrating a breach of his s. 8 rights. To do so, he had to demonstrate that the interceptions of his conversations was unlawful. He could reach that goal only by demonstrating that the interceptions of his conversations with Lyn did not fall within the scope of the authorization as it applied to Lyn.
12This issue was not directly litigated at trial. My review of the information pertaining to the six calls suggests that at least some were clearly within the terms of the authorization as it applied to Lyn. The other calls between Lyn and Nugent may or may not have been within the terms of the authorization as it applied to Lyn. The trial judge erred in law in finding that the interception of Nugent’s conversations with Lyn infringed Nugent’s s. 8 rights absent evidence to demonstrate that those interceptions were not within the terms of the authorization as it applied to Lyn.
The s. 24(2) analysis
13At the new trial, the trial judge may have to determine the admissibility of some or all of the conversations between Nugent and Lyn under s. 24(2) of the Charter. Consequently, I think I should address the Crown’s submissions that the trial judge made several errors in his s. 24(2) ruling.
14The trial judge held that the intercepted communications were conscriptive evidence and that their admission would, therefore, adversely affect the fairness of the trial. He appears to have concluded that the evidence was conscriptive because it would not have been available to the Crown but for the improper interception of Nugent’s communications.
15Counsel for the respondents concede, properly in my view, that the trial judge erred in law in classifying the intercepted communications as conscriptive evidence. The fact that the evidence would not have been obtained but for the violation of Nugent’s rights does not mean that Nugent was compelled to provide that evidence to the authorities. Indeed, he had no idea he was providing any evidence to the authorities. A long line of authority has established that the surreptitious interception of communications, either by “wiretap” or “body pack” of communications by persons who are not detained does not compel the intercepted parties to speak. Evidence of those communications does not, therefore, amount to conscriptive evidence for the purpose of s. 24(2) of the Charter: R. v. Stillman (1997), 113 C.C.C. (3d) 321 at 353-59 (S.C.C.); R. v. Solomon (1997), 118 C.C.C. (3d) 351 (S.C.C.), aff’g (1996), 110 C.C.C. (3d) 354 (Que. C.A.); R. v. Wijesinha (1995), 100 C.C.C. (3d) 410 at 428 (S.C.C.); R. v. Fliss (2002), 2002 SCC 16, 161 C.C.C. (3d) 225 (S.C.C.); R. v. Pope (1998), 1998 ABCA 267, 129 C.C.C. (3d) 59 at 62-64 (Alta. C.A.); R. v. Rendon (1999), 140 C.C.C. (3d) 12 at 47-48 (Que. C.A.); R. v. Mooring (2003), 2003 BCCA 199, 174 C.C.C. (3d) 51 at 59-60 (B.C.C.A.); R. v. Montemurro, [2004] O.J. No. 1309 (C.A.), leave to appeal to S.C.C. dismissed, [2004] S.C.C.A. No. 216.
16The trial judge also made two errors in assessing the seriousness of the breach of Nugent’s s. 8 rights. First, while properly recognizing that any unconstitutional surreptitious interception of private communications results in a significant breach of privacy, the trial judge failed to consider the extent to which Nugent’s private conversations were in fact the subject of unconstitutional interceptions. In measuring the seriousness of the breach, the trial judge should have gone beyond the general, albeit valid, observations of the nature of the breach and considered the actual extent to which Nugent’s privacy rights were breached by the interceptions. This inquiry would include a consideration of the number of interceptions which violated Nugent’s privacy right.
17The second error relating to the seriousness of the breach arises out of the trial judge’s characterization of the error in the affidavit relied on to obtain the authorization. The trial judge concluded that the erroneous information in the affidavit reflected a lack of care in the information gathering done by the police. With respect, there was no reasonable basis in the evidence for that conclusion. The erroneous information in the affidavit consisted of an inference drawn by a surveillance officer from certain observations of Nugent made by that officer. The surveillance reports setting out the observations and the inference drawn were part of the affidavit material relied on to obtain the authorization. Although the surveillance officer’s conclusion drawn from his observations turned out to be wrong, it cannot be said that it was unreasonable, or reflected any carelessness on his part.
The admissibility of the communications as against Lyn
18Counsel for Lyn did not challenge the authorization or suggest that any of the interceptions infringed his client’s privacy rights. There was no basis in the record for excluding any of the conversations insofar as they constituted evidence against Lyn. In so holding, I do not intend to limit in any way Lyn’s right to challenge the lawfulness or admissibility of the communications at the new trial.
19The errors in law established by the Crown require that the acquittals be quashed and a new trial ordered for both respondents.
RELEASED: “DD” “JAN 20 2005”
“Doherty J.A.”
“I agree John Laskin J.A.”
“K. Feldman J.A.”
