R. v. Clairoux, 2012 ONCJ 879

R. v. Clairoux

Date: September 7, 2012

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Michael Clairoux

Before: Justice Jacqueline V. Loignon

Reasons for Judgment released on: September 7, 2012

Decision on Application pursuant to Section 8 of the Charter of Rights and Freedoms

Counsel:

Ms. Allison Ratsoy — for the Crown

Ms. Diane Condo — for the accused Michael Clairoux

LOIGNON J.:

Background to the Application

1Mr. Clairoux has brought an application to exclude from evidence conversations intercepted following the granting of two separate Authorizations to intercept pursuant to Part VI of the Criminal Code of Canada. He also challenges two warrants to search issued under the authority of section 487 of the Criminal Code and seeks to exclude the fruits of the searches under section 24(2) of the Charter of Rights and Freedoms. The arguments being raised are cumulative in that in the event the first Authorization is found to be without foundation, then the fruits of the interceptions included in the second must be excised. In the event the second Authorization is found to be without foundation, then the warrants to search are also compromised.

2There is a presumption of validity that attaches to the current processes. Mr. Clairoux bears the burden of demonstrating that they are invalid. (R. v. Ebanks, (2009) ONCA 851 at par 20) The legality of the interceptions and searches depends on compliance with sections 185 - 186 and 487 of the Criminal Code. Non-compliance with the statutory pre-conditions renders the court processes invalid and therefore the resulting interceptions and searches warrantless. A warrantless search is in breach of section 8 of the Charter whereupon section 24(2) and the appropriate remedy must be considered.

Background to the Investigation

3The Ottawa Police Service initiated an investigation into the activities of the Applicant and his associates, believed to be engaged in drug trafficking, money laundering, intimidation and debt collection. It was believed that the accused had organized a group of individuals that police referred to as "ORL": Order, Respect, Loyalty to carry out their criminal activities. The group centered their activities in Ottawa, primarily in the east end.

Issues

4The issues as I have summarized them can be divided into the following broad categories:

1. Whether the statutory pre-conditions for the issuance of the first Part VI Authorization (Toscano Roccamo, June 7, 2011) were met namely:

   • a. Sufficiency of grounds:
     • i. Any appropriate amplification or excision;
     • ii. Test for naming a party (i.e. principal known person vs other known person);
   • b. Investigative necessity.

2. The sufficiency of the grounds to obtain the second part VI authorization [Toscano Roccamo, July 28, 2011]

3. The exclusion of all intercepted communications pursuant to section 24(2) of the Charter of Rights.

4. The sufficiency of the grounds to obtain the section 487 Criminal Code of Canada search warrants.

5. Whether there was bias on the part of the issuing Justice of the Peace resulting in a section 8 Charter violation.

6. The exclusion of all fruits of the searches pursuant to the warrants above in accordance with section 24(2) of the Charter of Rights.

The June 7, 2011 Part VI Authorization

5The Application for a Part VI Authorization was made by Detective Robert Cleary. It is some 278 pages long along with various appendixes. The affidavit contains references to investigative steps taken including: information from three confidential informants; physical surveillance; and results from prior warrants and production orders. It is of note that this Application was used to authorize the interception of communications of eight "principal known persons". Sixteen "other known persons" were also identified for the issuing Justice.

Law

(a) The Test for Review of an Authorization

6In R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] S.C.J. No. 115, Sopinka J. summarized the standard of review as follows:

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 she should not interfere. In this process, the existence of fraud, nondisclosure, 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.

7In R. v. Araujo, 2000 SCC 65 (CanLII), [2000] S.C.J. No. 65, LeBel J. characterized the test as follows:

Whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge. (52-55)

8The sole function of the reviewing court is to assess the record that was before the authorizing judge, as amplified on review, and determine whether the authorization could have issued. Importantly, this review has nothing to do with whether the reviewing court would have issued the authorization. It is not a hearing de novo. (Garofoli, supra at par 55)

9In Araujo, supra the court also commented on the adequacy of the affidavits in support of the application.

The legal obligation on anyone seeking an ex parte authorization in full and frank disclosure of material facts… All that it must do is set out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether the rise to the standard required in the legal test for the authorization. Ideally, an affidavit should be not only full and frank but also clear and concise. It need not include every minute detail of the police investigation over a number of months and even years. (at par. 46)

10Given the difficulty of the task faced by an affiant, some minor errors and omissions will not be surprising when considering the type of investigation undertaken and the degree of detail that the applicant must synthesize in order to meet all the legal requirements. (R. v. Melenchuk, [1993] B.C.J. No 558(CA)) In addition, courts have also recognized that "it is not appropriate when reviewing to parse and microscopically examine words, phrases, or paragraphs in isolation." (Simonyi-Gindele v. British Columbia (A.G.), 1991 CanLII 984 (BC CA), [1991] B.C.J. No. 2220 (C.A.)) see also the comments and Hill J. in R. v. N.N.M., 2007 CanLII 31570 (ON SC), [2007] O.J. No. 3022 at par 316:

The appropriate approach for judicial review of the facial validity of the search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, a common sense review not line by line word by word dissection, provide the fair and reasonable context for the assertions in question.

11In some cases, it is permissible for the reviewing court to amend the record of information before the authorizing judge by way of redaction or amplification the record (R. v. Araujo, supra at par 51-53). Assertions made that are without an objective foundation of credibility are to be redacted. I will expand on this issue below.

(b) The Basis for Granting an Authorization under Part VI

12An authorization under Part VI of the Criminal Code of Canada may be issued where there exist reasonable and probable grounds to believe that (a) an offence has or is being committed (b) that the authorization sought will afford evidence of that offence and (c) that other investigative steps have been tried and failed or are unlikely to succeed (sections 185 and 186 of the Criminal Code; R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30).

13In R. v. Okeke, [1999] O.J. No. 3693, Hill J. summarized the hallmarks of reasonable and probable grounds as follows:

"the burden of persuasion standard cast upon the police is one of credibly-based probability not suspicion… Reasonableness comprehends a requirement of probability… The standard is not to be equated with proof beyond a reasonable doubt or a prima facie case." (at par 22; Citations omitted)

14In R. v. Gatfield, [2002] O.J. No. 166, Justice Quinn of the Superior Court put it this way:

The issuing court must be satisfied that reasonable and probable grounds exist for the authorization. This finding cannot be delegated. It is not enough that the officer swears he has reasonable and probable grounds for believing the facts here she states to be true; there must be facts given on oath from which the issuing court can be judicially satisfied that there are rational grounds for the belief.

Mere suspicion on the part of the police that an offense has been committed is not sufficient. The information to obtain must disclose the cost of the suspicion before the issuing court can be satisfied if the grounds exist.

(at par 112-113)

15In R. v. Pires & Lising, 2005 SCC 66 (CanLII), [2005] S.C.J. No. 67, the Supreme Court of Canada instructed that in assessing reasonable and probable grounds, the affiant's personal belief is immaterial. "The only requirement in that there exist, on an objective basis, reasonable grounds to believe that an offence has been or will be committed and that evidence about the offence will be obtained by means of the proposed interception." (at par 66)

(c) Investigative Necessity

16Section 186(1)(b) permits wiretapping if the issuing judge is satisfied 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 offense using other investigative procedures.

17Wiretapping is a highly intrusive method of investigation. By the same token, law enforcement is tasked with investigating serious and sophisticated criminality. In R. v. Duarte, supra, the Supreme Court articulated this tension in the following manner:

… The very efficacy electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private. A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we open our mouths might the superbly equipped to fight crime, but with the one in which privacy no longer has any meaning.

(at par 22)

18The investigative necessity requirement found in section 186(1)(b) is therefore part the framework to regulate wiretapping such that a balance is struck between the interests of the state and public.

19In R. v. Araujo, [2000] in S.C.J. No. 65, the Supreme Court considered the wording of section 186(1)(b). The court affirmed that the components are to be read disjunctively given the use of "or". Accordingly, it is sufficient to satisfy 1 of the 3 branches of the section. In its final analysis the Court stated:

… The words of the code must be read with some common sense having regard to both the nature and purpose of the particular investigation which the police wish to undertake. A pure last resort test would turn the process of authorization into a formalistic exercise that would take no account of the difficulties of police investigations targeting sophisticated crime.… The authorizing judge should grant the authorization only as far as need is demonstrated by the material submitted by the applicant. The judge should remember that the citizens of this country must be protected against unwanted fishing expeditions by the state and its law enforcement agencies. Parliament and the courts have indeed recognized that the interception of private communications is a serious matter, can be considered only for the investigation of serious offenses, in the presence of probable grounds, and with a serious testing of the need for electronic interception in the context of the particular investigation and it objects. There must be, practically speaking, no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry.

(at par 29)

20It is to be noted that police need not to have exhausted all avenues of investigation. This would be tantamount to a last resort standard. Rather, the standard is one of whether there is no other reasonable means of investigation. (at par 37) I think it significant to note in that particular case, the court considered the following: failure of prior search warrants; limitations in the use of agents and confidential informants; prior use of surveillance; use of counter-surveillance by the targets; the inherent limitations of the use of further surveillance given the objectives of the investigation; the objectives of the investigation being the identification of the higher-ups in a drug ring. (at par 41-43) There is nothing pernicious in investigators setting out the objectives of the investigation. Indeed it is most helpful to do so in order to fully appreciate the investigative steps taken within their appropriate context. (at par 43)

21Finally, in considering the investigative necessity requirement, it is to be linked to the investigation as a whole and not separately to each named individual in the authorization. (R. v. Adam, [2006] B.C.J. No. 534 (B.C.S.C.) at par 71 adopting the reasoning of the Ontario Court of Appeal in R. v. Tahirkheli (1998), 1998 CanLII 6243 (ON CA), 130 C.C.C. (3d) 19)

(d) Amplification and Excision

22In R. v. David Floyd, O.C.J., June 15, 2012, Paciocco, J. (Unreported) Mr. Justice Paciocco summarized the principles behind amplification and excision as follows:

First, factual claims made in the information to obtain affidavit that without an objective foundation of credibility should be disregarded. For this reason, bald unsupported conclusions and erroneous or false facts should notionally be excised from an information to obtain affidavit.

Second, facts that should have been disclosed that weaken the significance or credibility of the grounds relied upon should also be taken into account since it is expected that during ex parte warrant applications the affiant will make full and frank disclosure of the actual state of affairs. Where this is not occurred, such facts can be considered by the reviewing Judge as if they had been before the reviewing Judge. (Re Church of Scientology (No. 6) (1987), 31 C.C.C. (3d) 499 at 528- 529 (Ont.C.A.), cited with approval in R. v. Araujo, (2002) 2002 SCC 64 (CanLII), S.C.J. No 65 at par 57).

Third, in appropriate cases, even information that could have supported the warrant but that was not put before the issuing Justice by the affiant can be added during the review stage through amplification. In particular, amplification can occur when additional information that was available to the affiant at the time the information to obtain affidavit was sworn is inserted to correct errors or inaccuracies in the information to obtain affidavit and have been made in good faith. This can involve the correction of misstated information.

In Quebec (Attorney General) v. Laroche (2002), 2002 SCC 72 (CanLII), 169 C.C.C. (3d) 97 (S.C.C.), Justice LeBel again cautioned, this time more directly, that amplification should not be used to cure defects that are developmentally flawed.

(d) The Use of Confidential Informants

23The use of confidential informants in establishing a basis for applying for an authorization to intercept is a long established practice. As a result, courts have also set out parameters with respect to the quality of information required in order for a court to be confident in the information being provided.

24In R. v. Debot, supra, the Supreme Court Canada of provided the following guidelines:

i) was the information predicting the commission of a criminal offense compelling?

ii) Where that information was based on a tip originating from a source outside the police, whether that source credible?

iii) Was the information corroborated?

The totality of the circumstances must meet the standard of reasonableness. Weakness in one area may, to some extent, be compensated by strengths in the other two.

[Where police rely on anonymous tip or on an untried informant] the quality of the information and corroborative evidence may have to be such as to compensate for the inability to assess the credibility of the source.

In my opinion, it should not be necessary for the police to confirm each detail in an informant's tip so long as sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence.

(at par 53, 59, 63)

25In R. v. Garofoli, supra, the Court dealt with assessing a "tip" provided by an informant. The Court said:

i) hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.

ii) The reliability of the tip is to be assessed by recourse to the totality of the circumstances. There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:

a. the degree of detail of the tip;

b. the informers source of knowledge;

c. indicia of the informers reliability such as past performance or confirmation from other investigative sources.

(as cited in R. v. Okeke, supra at par 26)

The number of cases have set out further issues to be considered in assessing informer reliability. Some of these include the following:

• corroboration of details that would be known to anyone familiar with the target does not substantiated an allegation that the person is involved in the alleged criminal activity. (R. v. Zammit (1983), 1993 CanLII 3424 (ON CA), 81 C.C.C.(3d) 112(Ont. C.A.))

• corroboration of innocuous biographical detail does not constitute corroboration that will tend to confirm the reliability or case credibility of an informant. (R. v. Costain, [1996] O.J. No. 543 (CJ))

• Whether the information is first-hand or hearsay from the mouth of the informant. (R. v. Day, [1990] O.J. No. 4461 (C.A.))

Application to the Facts

Sufficiency of Grounds:

26With respect to the review of the sufficiency of the grounds, defence counsel has raised the following issues:

i) Any appropriate amplification or excision:

A) the affiant was not clear in describing the criminal organization under investigation;

B) references to the accused's association to the Hell's Angels ought to be excised because it is inflammatory and would have prejudiced the issuing Justice

ii) Whether reasonable probable grounds that the interception of this accused's communications would afford evidence of the offences;

iii) Whether the accused should have been named as a Principle Known Party or an Other Known Party

i) Amplification and Excision

Amplification

27I note at the outset that review of the authorizations proceeded on the basis of the documents themselves. No evidence was called or filed by the accused. Viva voce evidence was given by the affiant on certain limited issues.

28Defence counsel alleges that the statement with respect to the criminal organization under investigation is unclear. She submits that there is confusion as to whether the actual organization is the Hell's Angels, the ORL or some other criminal organization. Permission to cross-examine the affiant on that particular topic was previously granted by myself. In cross-examination, the officer indicated that the specific criminal organization under investigation was the ORL "plus". I use this descriptor as it is one the witness used and, he indicated that while most members investigated were members of the ORL there were some that were not and as a result he was not prepared to use the ORL as the complete organization under investigation. The witness also indicated that the description referred to on page 4 of the various organizations is an un-sourced overview. It is un-sourced as it is the necessary contextual information for the authorizing Judge to appreciate the information that is to come. Sourcing follows in the paragraphs that follow. In my view there is nothing wrong with this approach.

29The description of the criminal organization under investigation certainly leaves something to be desired with respect to the characterization of the ORL as it should likely have been ORL "plus". Notwithstanding, the principals of the investigation were certainly all primarily members of the ORL. I am prepared to amplify the record to ORL "plus".

Excision

30Defence counsel contends that the issuing Judge would have been mislead with respect to the references associate with Mr. Clairoux to being a full patch member of the Hell's Angels as well as being prone to violence.

31The affiant's obligation in drafting an affidavit is one of full, fair, and frank disclosure. There is nothing misleading about those statements in my view. Indeed, on most occasions that Mr. Clairoux is observed, he is wearing Hell's Angels paraphernalia. To ignore his direct association with that organization would not have been proper in my view. Indeed, it is part of the information provided by the confidential informants and was certainly subject to corroboration by police. As a result, it is not misleading. Indeed, it is the truth. With respect to being prone to violence, the accused's criminal record was attached for the issuing Justice. Indeed, based on the information found within the criminal record, Mr. Clairoux has been found guilty of crimes of violence. The issuing Justice would certainly have been able to come to any conclusions with respect to the characterization of the accused as being violent. In addition to this, CI#1 and #3 provided information concerning the accused's activities, which can be characterized as inherently violent. With respect to informant reliability, that matter is discussed infra. Finally, still on the issue of violence, a police contact with the accused himself on May 9th, 2011 is related on pages 220-1 of the affidavit. The accused states that his medical marijuana certificate is a result of PTSD (Post-Traumatic Stress Disorder); that he blacks out when he gets violent and that the disorder relates to having been in fights and having been stabbed.

32In my view, the above information need not be excised as there is an objective foundation for it.

33Still on this issue, there is one area, which I do believe merits excision. That is the statement to the effect that the accused is "deeply rooted in the white supremacist movement in Ottawa." The only further information on this topic is in relation to the term "skinheads" used by CI#3. This aspect of the informant's information is not corroborated however. This term is without objective foundation and therefore will be excised.

34Defence counsel has made submissions with respect to paragraphs in relation to outlaw motorcycles gangs found at pages 248 and 249 of the affidavit. The submission is that the issuing Justice would have been confused or mislead with respect to the accused's link to the Hell's Angels and current investigation as a result of the wording used. Reading that section in isolation, I would agree with defence that the manner of the presentation of the evidence would lead to some confusion. However, when read as a whole the affidavit makes clear the following:

• The Hell's Angels were not a target of the investigation;
• The accused was frequently seen wearing the Hell's Angels colours;
• The accused was seen attending the Hell's Angels club house;
• Michael Clairoux according to one of the informants, was believed to be the head of a criminal organization trafficking in drugs and his status as a member of the Hell's Angels lent him stature and credibility with respect to the criminal enterprise.

35The point being made, although not very clearly, is that through his association with the Hell's Angels, investigation the accused is more difficult and therefore there is a greater need for the interception of his communications.

ii) Reasonable and Probable Grounds that the Interception of this Accused's Communications Would Afford Evidence of the Offences

36Defence alleges that the use of the Hell's Angels' association was to create bias as against the accused and that there is nothing to substantiate his involvement in the offences or that the interception of his communications would afford evidence of the offences. The accused alleges that he was identified as a target and the police went on a fishing expedition to see what the wiretapping would turn up.

37I disagree. As set out above, "reasonableness comprehends a requirement of probability. The standard is not to be equated with proof beyond a reasonable doubt or a prima facie case." The affiant set out the known information, which supports that:

• Surveillance revealed some 19 instances of suspected drug transactions;
• The accused was observed with a number of the parties to the suspected drug transactions;
• The accused was observed entering what was believed to be the stash house. As an aside, there was ample evidence for the belief that 450 Daly was indeed a stash house;
• The accused was seen receiving a large wad of cash from another principal target directly suspected of trafficking in narcotics;
• Confidential Informants #1 and #3 suggest that the accused is the leader of an organized group of individuals trafficking in drugs. The informers provide their information on different dates.
• Confidential Informants #1 and #3 associate the accused with various other targets under investigation including Paolino and Levesque.

38I should make clear at this point that the information provided by the Confidential Informants in this case was corroborated in many instances by police. Where it was not, the affiant clearly set that out. CI #1's track record was set out by the affiant such that the issuing Justice could form an opinion as to reliability. At the time of this investigation, CI #3's track record was relatively new with the Ottawa Police Service, notwithstanding, having regard to the criteria to be considered in assessing reliability as set out earlier, there was certainly a much higher level of corroboration attached to that informer's information. This corroboration goes beyond mere biographical detail and includes confirmation of information the police themselves had noted through the course of their investigation. Indeed, it is compelling in its detail and in many aspects was independently verified.

39In addition, the tip as to the accused's status as the leader of a large drug trafficking network was provided by both informants, at different times. It is permissible for an issuing Justice to consider mutually corroborating information from confidential informants. Indeed, the evidence of one informant may "contribute to the strength of another informant's evidence". (R. v. Jorge, [2010] O.J. No. 3847 at par 33; see also R. v. Saunders, 2003 NLCA 63 (CanLII), [2003] N.J. No. 309, conf. [2004] S.C.J. No. 66 (S.C.C.)) In my view the information provided in this instance by both CI #1 and CI #3 do just that.

40Accordingly, there was, in my view evidence to support reasonable and probable grounds that intercepting the accused's communications would afford evidence of the offences.

Whether the Accused Should Have Been Named as a Principle Known Party or an Other Known Party

41The test for naming a person in an authorization to intercept was stated by the Supreme Court of Canada in R. v. Chesson, 1988 CanLII 54 (SCC), [1988] S.C.J. No. 70. In that decision, Justice McIntyre indicated the following:

How is it to be decided whether a particular person is known or unknown for the purposes of Part IV.1 [now VI] of the Code? In my opinion, the answer to this question is to be found in Part IV.1 itself. The starting point is s. 178.12(1)(e) [s. 185] of the Code, which sets out the two pre ‑ conditions to be met before a person may be lawfully identified and named in an authorization and thus be a known person. The first and most obvious condition is that the existence of that person must be known to the police. Second, and equally important, however, is the additional requirement that the person satisfy the standard of being one "the interception of whose private communications there are reasonable and probable grounds to believe may assist the investigation of the offence". If at the time the police apply for a judicial authorization a person meets both these criteria, he will be a known person and therefore, if the interceptions of his communications are to be admitted against him, he must be named in the authorization as a target for interception. If he is not named his interceptions are not receivable since there is no authority to make them.

42Defence urges me to find that the accused ought to have been categorized as an "Other Known Person" such that minimization would have limited the intrusion into his privacy. Defence relies on R. v. Sipes, [2010] BCSC 1256 (CanLII), in that regard. The test however is the one set out by the Supreme Court of Canada as above. In Sipes, the Court recognizes that there is no distinction in law of the practice of categorization of the parties. The standard of proof to name someone as a primary or a secondary target is the same. (at pages10-12) While the Court in that decision referred to some debate in British Columbia on the issue, it certainly referred to Chesson, supra and R. v. Schreinert, 2002 CanLII 44932 (ON CA), [2002] O.J. No. 2015, from the Ontario Court of Appeal which in my view bind me.

43In my view, the accused meets the definition as set out above by the Supreme Court of Canada. In coming to this conclusion I rely on the following:

• he was a person known by the police to be associated with the targets of the investigation including Mr. Levesque;
• he is the stepfather of another principal target;
• he lives next door to a principal target;
• he is seen associating with Levesque, Glover, and an individual believed to be Anthony Paolino. At that time he receives as large wad of cash.
• he is associated with Benjamin Frith who is associated with his step-son and the stash house;
• he is seen at the stash house;
• he is identified by confidential informant #3 as being at the upper echelons of a drug trafficking network; and
• Confidential Informants #1 and #3 associate the accused with various other targets under investigation including Paolino and Levesque.

44In R. v. Chesson, supra, the basis for concluding that reasonable probable grounds existed to include Vanweenan in the authorization was the following: she and Whiteman were close associates and in the past had joined in criminal activity; she was Whiteman's girlfriend; she was seen in a vehicle owned by Whiteman and had previously been involved in criminal activity with him. In my view, the circumstances as enumerated in this particular case certainly go well beyond the facts as in Chesson. Failure to include Vanweenan in the Chesson case resulted in her communications not being lawful and therefore they could not be adduced. In these circumstances, police had no choice but to name Michael Clairoux as a known person.

45This is not the case of a known person likely to be affected by the implementation of the authorization such as a spouse of a target (as described in R. v. Sipes). Rather, this is a primary target. Given this, I see no reason to embark on the considerations, discussed in R. v. Sipes as proposed by the accused.

b) Investigative Necessity

46Defence counsel argues that the statutory precondition with respect to investigative necessity is not made out on the basis of the information found within the affidavit. More specifically, counsel points to the following areas:

a) Physical surveillance and the occurrence of counter-surveillance

b) Use of search warrants

c) Use of police informers/agents

d) undercover operatives

47The area of investigative necessity is covered in the affidavit at pages 237 through to 249. In my view, the rationale for investigative necessity being made out is quite extensively covered in the affidavit.

48With respect to the first matter, namely physical surveillance, I note that despite the fact that physical surveillance did indeed continue, this is not as defence urges me to consider, an indicator that investigative necessity is not made out. Rather, it is simply making use of all investigative tools.

49At paragraph 9, pages 236 to 237, the affiant sets out the investigative objectives. These will necessarily inform the extent of the efficacy of physical surveillance. In addition, I think it important to bear in mind the instances of court-surveillance undertaken by various targets as well as direct confrontations listed in the affidavit. Quite frankly, they are rather graphic examples of why physical surveillance has definite limitations in this particular case.

50Defence has suggested that the counter-surveillance engaged in did not deter the actual surveillance and as a result that ought to militate against investigative necessity being shown. I disagree. Counter-surveillance is a factor to be considered in terms of determining the efficacy of that investigative technique. The fact that officers continue to survey a target demonstrates a willingness to pursue this avenue notwithstanding its limitations. But, its limited value is certainly underscored by the counter-surveillance as well as the limitations described with respect to the location. Indeed, the affiant describes static surveillance of Levesque and Clairoux, who live side by side as being difficult to avoid detection given their residential neighbourhood.

51Defence counsel contends that the information contained at page 240, namely examples of counter-surveillance, has not been sourced and therefore little weight ought to be placed on it. In fact, this information can be found in section 8 of the affidavit. By way of example, the information that Mr. Khaira detected surveillance is set out at page 17; that Levesque detected surveillance on March 28 as detailed at page 174, to name just two occurrences. There are twelve instances of counter-surveillance noted in the affidavit. The fact that prior page references have not been included does not make this information unreliable.

52Defence counsel also argues that the affidavit, still at p. 240, uses boilerplate language to describe the limitations on surveillance. I am urged to put little weight on such boilerplate language given the commentary in the case law on the lack of usefulness of such language. I note that in those paragraphs at pages 240-242, the affiant describes the drug trade, describes the effect of counter-surveillance and also describes the techniques used by the investigative teams in conducting their own surveillance.

53While some of the impugned information is indeed of a general nature, in my view, it is appropriately included with respect to contextual information. That information is then supplemented with information specific to this particular investigation, which raises the quality of the information. In my view, most—if not all of the information—identified by defence as being boilerplate is contextual information which assists the reader in appreciating the investigative technique within the context of the particular investigation. The general information is also supplemented with particulars that again assist the reader of the affidavit in understanding the limitations to the investigative techniques being discussed.

54I do not intend to spend much time discussing the second area of contention namely the search warrants, in my view the information provided within that section is sufficiently specific in order to allow the reviewing Justice to appreciate the usefulness of search warrants especially in the context of this particular investigation. Indeed, the affiant referred to various production orders and their results, as well as various warrants authorizing covert entries. On this last point, the affiant provided examples of seven instances where entries were either effected or attempted. In addition, I note that the section draws attention to the fact that a search warrant tends to be useful at the culmination of an investigation rather than during the course of the investigation and indeed, this comment is a fair one.

55Defence argues that the sections pertaining to the use of police informers/agents does not demonstrate an exhaustion of investigative techniques. It is significant to note that this portion of the affidavit must be read in conjunction with the prior information provided with respect to informers set out at pages 5 through to 8 of the affidavit. Indeed, those paragraphs specifically set out the concerns of the informants in respect to acting out as agents. The Crown's point with respect to the consequences of becoming an agent is a fair one in that by doing so an informant gives up their anonymity. Given the commentary that the informants wished to remain informants and did not want their names to be known this forecloses any avenue with respect to their status changing to that of an agent.

56Another issue raised by the investigator in the affidavit, found at page 47 paragraph 3, relates back to the nature of the investigation. The investigator notes that while the informants were of use in terms of providing some information as to the activities of the known persons and other known persons, their knowledge of the upper echelons was limited. Therefore, the limitation identified by the investigator is certainly a fair one.

57The limitations described by the investigator with respect to finding an undercover operative to infiltrate the Clairoux organization are fair ones. I do not feel that the inability to identify such an operative detracts from investigative necessity.

Conclusion

58As a result of the foregoing, I am of the view that investigative necessity was made out with respect to the statutory precondition required to be considered by the authorizing Justice. The authorizing Justice had compelling information before her, which could lead her to conclude that investigative necessity was met.

Overall Conclusion

59Having regard to the amplifications and excisions listed above, I find that the authorizing judge could have granted the authorization and therefore no interference is warranted by myself.

The Sufficiency of the Grounds to Obtain the Second Part VI Authorization [Toscano Roccamo, July 28, 2011]

60Counsel for Mr. Clairoux has conceded that in the event the first affidavit stands, then there existed sufficient grounds to issue the second. As a result, I need not consider this issue.

The Exclusion of All Intercepted Communications Pursuant to Section 24(2) of the Charter of Rights

61Given my conclusion as above, I need not address this question.

The Sufficiency of the Grounds to Obtain the Section 487 Criminal Code of Canada Search Warrants

62To begin with, section 8 of the Charter provides that everyone has the right to be secure against unreasonable search and seizure. Judicial interpretation of this section has attempted to balance legitimate state interest in the detection and prevention of crime and the fundamental societal value of being free from unwarranted state intrusion on privacy. Accordingly, the minimal constitutional requirements for a lawful search are the following:

a) prior judicial authorization;

b) based on reasonable and probable grounds;

c) that an offence has been committed; and

d) that there is evidence to be found at the place to be searched.

(Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 at pp.161-162 and 167)

63The statutory pre-conditions for the issuance of a warrant to search under section 487 of the Criminal Code are reasonable grounds to believe a) an offence is being committed and b) that evidence in relation to the offence will be found in the place to be searched. Again, as stated above, the basis for assessing reasonable and probable grounds is founded upon "credibly-based probability". (Hunter v. Southam, ibid at p. 167) It is more than suspicion but less than proof beyond a reasonable doubt or a prima facie case. I pause to note that the parties did not argue that the informant did not have the subject belief that reasonable grounds existed. Rather, issue is being taken with the objective sufficiency of those grounds. (See R. v. Storrey, 1990 CanLII 125 (SCC), [1990] S.C.J. No.12 (SCC))

64The standard of review of a search warrant is the same as set out above in R. v. Garofoli and so I will not repeat the factors previously listed that must be borne in mind.

65The accused takes issue with the issuance of the warrants by the Justice of the Peace alleging that there was bias. I will deal with that below. In addition, he also suggests that there was an absence of reasonable grounds to believe and an offence had been committed and that there were items to be found at the locations identified in the warrants. These locations were the accused's personal residence as well as the Hell's Angels clubhouse. The charges concerning the accused and noted at paragraphs 5.01 and 6.01 of the ITO are trafficking of controlled substances and conspiracy to commit the indictable offence of trafficking in a controlled substance.

66In conducting a review of the warrants, the accused has submitted that a number of paragraphs ought to be either amplified or excised from the Information to Obtain (ITO).

67The first is in relation to references to the accused being directly involved in drug trafficking on page 4 of Tab 5 and later on at page 66. I note that in the section that immediately follows the impugned one, namely 6.01, the affiant sets out that the accused is to be charged with conspiracy to traffic. In my view, when read as a whole, the issuing Justice would not be misled by the use of the term "direct". A conspiracy connotes both direct and indirect involvement. In any event, there is evidence in the ITO of the accused receiving a large sum of money from one of the targets of the investigation; there is evidence of the accused attending the stash house, there is evidence from the wiretaps of the accused setting up drug buys and directing or being involved with other members of the organization being investigated, including payments and debts. As a result, I do not feel that this is a matter for excision.

68Next, defence contends that the reference to Lamoureux at Tab 5 page 64 is misleading and that the affiant ought to have stated that he "believed it to be" Lamoureux. This area was the subject of cross-examination. On that topic, the affiant stated that to guarantee identity with one hundred percent certainty, he would have to be next to the person speaking. He also added that he reviewed the texts as well as the phone calls and was satisfied that he had correctly identified the individual speaking as Lamoureux. He did not feel it necessary to qualify his assertion with "believed to be". The evidence of the officer is reasonable and as a result I do not view the information as being false or misleading. There will be no excision.

69Defence contends that there is confusion as to which criminal organization is being investigated. Is it "ORL" or "ORL plus"? The overview section states ORL while page 66 and the officer's evidence suggests it is ORL "plus". Defence suggests that I should excise the entire paragraph that references the ORL in the overview. To begin with, the difference is a minor one and I do not view it as meriting excision. It may lack rigour, but it is not false or misleading. In addition, it is in an overview and therefore contextual section. I would propose to amplify the paragraph to include "plus".

70On page 5 of the affidavit, the affiant relates that the accused and members of his organization are involved in the intimidation of rival drug traffickers as well as the ongoing enforcement of their drug trafficking territory. I am urged to excise that paragraph as, according to the accused it is misleading as there is no direct evidence of such intimidation or enforcement. It is further argued that the affiant would have conceded that there was no direct evidence of the accused's involvement. As I recall the evidence on that point, the affiant made reference to the accused not being directly involved in instances of observed trafficking. He made no such clarification with respect to these two issues. In addition, when looking at the affidavit as a whole, there is an instance where the accused refers to a rival gang (members of the Mongols) in the following manner: "if I see them I'm going to tell them to get the fuck out of Ottawa… and if they don't like it…I'll beat their fuckin' faces right where they stand." In another instance there is reference to the accused organizing or authorizing a home invasion and robbery with the proviso that there ought to be confirmation that the victim is not with another specific organized crime group. Finally, paragraph 4.23 of the ITO speaks to enforcement of a drug debt. This information is accurate and as a result will not be excised.

71Counsel for the accused suggests that paragraph 4.16 ought to be excised as it is irrelevant and inflammatory. This paragraph relates to very explicit and derogatory conversation between the accused and his son. The affiant identifies that this information is in the ITO as it demonstrates his "anger, intimidation and propensity for violence". The words found in that paragraph are ones attributed to the accused. There is nothing inaccurate. Throughout the affidavit there are references to the accused and his willingness to use violence. In my view the information is relevant and while disturbing, not inflammatory. It will not be excised.

72Having determined the record to be reviewed, the next issue is whether the requisite grounds existed with respect to offences being committed and the places to be searched.

73The accused alleges that there are insufficient grounds to support that he is involved in the commission of offences. I disagree. In addition to the factors already mentioned above in paragraphs 67 and 70 there are the following pieces of information primarily from the wiretaps:

• the accused indicating that he had people who worked and that every day was a Saturday;
• the accused indicating that he could use the money in response to a statement from one of the targets indicating that he himself was busy;
• conversations with Lamoureux whereby money owed to him by others was going to go to the accused;
• the accused arranging a drug transaction;
• the accused coordinating a drug transaction through Frith and other involvement with that individual who is a tenant in the stash house;
• the accused being linked to the stash house at 450 Daly in the manner of attending there as well as dealing with issues with his spouse in whose name the apartment was rented;
• the accused coordinating with an individual to obtain marijuana plants from Kevin;
• following the execution of a drug search warrant at the Lamoureux residence, the accused meeting with Lamoureux at the Leblond Street address;
• the accused's more direct involvement when things go wrong: the Aftermath of the Lamoureux search as well as the aftermath of the loss of the handgun.

74In my view there exist reasonable and probable grounds to believe that the accused was involved in a conspiracy to traffic in narcotics. In addition, with respect to the locations of the searches and the connections to them, I note that the Leblond Street address, the accused's residence, comes up a number of times where there are meetings either between the accused and Levesque or the accused and other individuals involved in the trafficking. In addition, the affidavit further discloses several instances of the accused attendance at the Hell's Angels' clubhouse thus identifying it as a place with which the accused has a significant connection. In addition, in some instances the accused invites people to attend the clubhouse in order to consume drugs.

75An issue was raised concerning identifying Jesse Clairoux and Nancy Levesque as residents of Leblond Street in order to ensure minimization of any intrusion on their privacy. With respect to Jesse Clairoux, he is identified within the body of the affidavit as being a resident and therefore this is a non-issue. With respect to Nancy Levesque, she is mentioned a number of times during intercepts of conversations from the residential line. A more direct reference would perhaps have been desirable but I am satisfied that this fact was discernable on the face of the ITO.

Conclusion

76Having regard to the amplification as above, I find that the issuing Justice could have granted the warrants to search and therefore no interference is warranted by myself.

Whether There Was Bias on the Part of the Issuing Justice of the Peace Resulting in a Section 8 Charter Violation

77An allegation of bias on the part of a Justice of the Peace in the execution of his functions is a very serious one. Cogent evidence must be presented to support such a claim as such an allegation strikes at the very foundation of our system of Justice. Indeed, "A system of Justice, if it is to have the respect and confidence of its society, must ensure that trials are fair and that they appear to be fair to the informed and reasonable observer. This is a fundamental goal of the justice system in any free and democratic society." (R. v. R.D.S., 1997 CanLII 324 (SCC), [1997] S.C.J. No 84 at par 91.)

Law

78Impartiality, in the exercise of judicial functions has been identified by the Supreme Court of Canada as "[the] absence of bias, actual or perceived". (per LeDain Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673, at p. 685) Bias was described in R. v. R.D.S., supra at par 105 as a state of mind predisposed to a particular result.

79The test to be applied, as set out by the Supreme Court of Canada in R. v. R.D.S., supra is the following:

The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. . . ."

This test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. See Bertram, supra, at pp. 54-55; Gushman, supra, at para. 31. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including "the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold": R. v. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14.

Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high.

(at par 111-113)

80I note at this juncture that defence referred me to R. v. Baylis, [1988] S.J. No. 414 (Sask C.A.), with respect to the test to be applied. Having read that decision, the Court applies the majority decision in Justice & Liberty et al. v. National Energy Board et al., 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369. In R. v. R.D.S., supra however, it is Grandpre's dissenting views and more rigorous test that were adopted by the Supreme Court of Canada. As a result Baylis, supra, is no longer good law on that point.

81Notwithstanding the change in the test itself, there are a number of comments made in R. v. Baylis, ibid, which bear setting out.

The purpose of requiring prior authorization of a warrant to search and seize by a neutral and detached person is to ensure that the individual's right to privacy and to be secure against search and seizure will only be breached if the State demonstrates that the appropriate standard has been met judicially in a neutral, detached and impartial manner.

It is clear that there must be a separation, a detachment, a neutrality, between the person authorized to issue the warrant and the State. There must be an impartial arbiter.

As previously noted, the policy underlying the neutral impartial approach to assess whether the evidence meets the standard to permit the invasion of privacy is that the person making such decision be free from real or apprehended bias. Justice must not only be done but must manifestly and undoubtedly be seen to be done.

(at pp. 15 and 17)

82The test was helpfully put in the following manner more recently by the Ontario Superior Court of Justice:

The court must consider what conclusion an informed person would draw, viewing the matter in a reasonable and practical way and after having given the matter sufficient thought: would he or she conclude that the trial judge more likely than not would not decide the case fairly, whether due to conscious or unconscious factors?

(R. v. Camardi, [2008] O.J. No. 3562 (SCJ) at par 25.)

Facts Supporting the Application

83The following additional facts were elicited through cross-examination:

• the accused had no personal relationship with the Justice of the Peace outside of Katie's and Marc's marriage;
• at the time of the accused attending the Justice of the Peace's residence to perform work, the accused confirmed that there was direct contact with the Justice including small talk about the work to be done at the house;
• at the golf tournament, there was again direct contact with the Justice of the Peace, primarily in the form of idle chatter;
• the accused could not be specific about the total number of times there was contact with the Justice of the Peace but he did add that in some instances he attended at an office furniture store owned by Robert Sculthorpe and worked on the computers there and the Justice of the Peace would have been present on those occasions as well as those detailed above;
• the accused addressed the Justice of the Peace as "Dick" as requested by him;
• when he did see the Justice of the Peace at the furniture store he would simply say "Hi";
• around the time of Katie and Marc's wedding, the accused would have seen the Justice of the Peace and spoken with him with respect to wedding reparations;
• The wedding is the last time the accused had actual contact with the Justice of the Peace;
• The Justice of the Peace has never been to the Leblond Street residence as far as the accused was aware.

84Paragraphs 8 and 9 of the Affidavit contain hearsay statements attributed to Katie. The Crown urges me to strike these paragraphs while the defence indicates that they are not being adduced for the truth of their contents and so there is no need for their removal. Defence suggests that they may be considered in assessing the accused's apprehension of a lack of partiality on the part of the Justice of the Peace. I tend to agree with the Crown that without the statements being offered for the truth of their contents, there really is very little to support the presence of the statements in the affidavit. Given that the perspective in assessing bias is the reasonable person and not the individual's own subjective belief, the paragraphs have no relevance. Accordingly, given their hearsay nature I am not considering those two paragraphs in assessing the issue of reasonable apprehension of bias.

Conclusion

85The Crown has described the relationship as a dated and distant social one. While I agree that the relationship is somewhat dated, it was more than a fleeting one. Indeed, it was a familial one that ensured regular contact over a period of several years. Contact on a number of different occasions while the accused did work for Robert Sculthorpe's business as well as for the Justice of the Peace himself, present as more than a fleeting connection.

86On a practical level, in a city the size of Ottawa, it would not be unreasonable to expect that another Justice of the Peace could have been available to review the warrants. In my view this would weigh in the mind of a reasonably informed person.

87In my view, a reasonably informed person, aware of the familial and commercial connection between the accused and the issuing Justice, bearing in mind the requirement for judicial authorization by an impartial justice would conclude that there was indeed a lack of impartiality or a reasonable apprehension of bias. The judicial authorization process must not only be fair but must appear to be fair to the informed and reasonable observer. In these circumstances, while I do not find actual bias on the part of the issuing Justice, I do find that the reasonable observer would not conclude that the process appeared to be fair.

88Having found that that there existed a reasonable apprehension of bias on the part of the issuing Justice, one of the statutory pre-conditions for the issuance of the warrant has not been met. Accordingly, the search warrants were not valid and thus the searches conducted were warrantless. A warrantless search is prima facie unreasonable and thus a breach of Section 8 of the Charter has been shown.

The Exclusion of All Fruits of the Searches Pursuant to the Warrants Above in Accordance with Section 24(2) of the Charter of Rights

89The Supreme Court of Canada lay down a renewed test for determining the admission or exclusion of evidence obtained in breach of Charter rights in R. v. Grant, 2009 SCC 32 (CanLII), [2009] S.C.J. No. 32. In deciding whether to admit or exclude evidence, a court must now assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(a) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct);

(b) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little); and

(c) society's interest in the adjudication of the case on its merits.

90When conducting this assessment, I am to view it through the filter of a "reasonable person", informed of all relevant circumstances and the values underlying the Charter, and whether they would conclude that the admission of the evidence would bring the administration of justice into disrepute (para. 68). Section 24(2) starts from the proposition that damage has already been done to the repute of the administration of justice and therefore it seeks to curtail any further damage (para. 69).

91With respect to the first factor, the greater the level of state misconduct, the greater the need for the courts to disassociate themselves from that conduct. Wilful or reckless disregard for Charter rights will, therefore, tend to support exclusion (paras. 71-74). "Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: para. 75.

92The second part of the analysis requires the court to consider the impact of the breach on the accused. "[t]he impact of a Charter breach may range from fleeting and technical to profoundly intrusive". The more serious the impact is on the rights of the accused, the more likely it will be that exclusion is warranted (paras. 76, 77).

93The final part of the inquiry or, society's interest in adjudication on the merits, asks the question of whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion" (para. 79). The reliability of the evidence is an important consideration, as is the importance of the evidence to the truth-seeking function of the trial.

The Seriousness of the Charter-Infringing State Conduct

94The first avenue of inquiry requires the Court to consider the seriousness of the Charter-infringing state conduct. In some cases the courts have referred to a continuum of breaches. At one end are the technical or minor breaches while at the other are the most serious being the flagrant and deliberate breaches.

95I note at the outset that no paragraphs have been excised from the ITO and whatever amplification is minimal. Furthermore, I have not found that the ITO itself lacked the foundation for the issuance of the warrant. There is no wilful or reckless disregard on the part of the agents of the state. Indeed, there is nothing in the police conduct that this Court needs to distance itself from. In Baylis, supra, where a reasonable apprehension of bias was found on the part of the issuing Justice, the Court found that the police had made a deliberate practice of attending before that particular Justice. As a result, the Court of Appeal found that good faith could not be argued. The violation was found to be deliberate, blatant and not trivial (pp. 28-29). Such is not the case before me. There is nothing to suggest that police had any knowledge of a familial or other connection to the accused. Police did not, as far as the evidence before me, seek out this particular Justice of peace as in Baylis, supra. As a result, I am prepared to conclude that officers made a good faith attempt to secure prior judicial authorization for the warrants executed. This factor favours inclusion.

The Impact of the Breach on the Charter-Protected Interest of the Accused

96In evaluating this, the Court should consider that:

"a "significant" impact on an accused's liberty and privacy interests, even if the breach itself does not qualify as "egregious", will suffice… In the context of unreasonable search and seizure, the focus is on the degree to which search or seizure intruded upon privacy, bodily integrity and dignity". (R. v. Loewen, [2010] ABCA 255 at para. 100-101)

97With respect to the impact of the breach or breaches on the Charter protected interests of the accused, that impact, in my view, was serious with respect to the search of the residence. A warrantless search of an individual's home is a significant intrusion and one that is often referred to as amongst the most serious within this context. Given the location of this search, this factor would favour exclusion.

98With respect to the search of the clubhouse however, I am not as persuaded as to the impact on the accused. It cannot be characterized in the same manner as a personal residence. On this warrant, this factor would favour inclusion.

Society's Interest in the Adjudication of the Case on Its Merits

99Under this heading, the court must consider whether the truth-seeking function of the criminal process would be better served by admission of the evidence, or by its exclusion. A broad inquiry into all the circumstances, not just the reliability of the evidence must be undertaken. The significance of the evidence to the prosecution is also a relevant consideration at this juncture, as is the seriousness of the allegations.

100It is undisputed that the evidence is real evidence and thus highly reliable. It is also undisputed that the evidence is crucial to the Crown's prosecution. The charges before the Court are very serious ones. In my view, the reasonable person, informed of the circumstances, including the values underlying the Charter would not conclude that admission of the evidence would bring the administration of justice into disrepute. Rather, the exclusion of the evidence in circumstances where no criticism is laid at the feet of the state agents would have a greater negative impact on long-term maintenance of public confidence in the administration of justice.

101The application is dismissed.

Released: September 7, 2012

_______________________________

The Honourable Justice J. V. Loignon