Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211001 DOCKET: C63885

Doherty, Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Davide Duncan Appellant

Counsel: Anne Marie Morphew and Karen Symes, for the appellant Christopher Webb, for the respondent

Heard: March 31, 2021 by video conference

On appeal from the conviction entered by Justice Michael Code of the Superior Court of Justice on February 4, 2016.

Reasons for Decision

[1] The police seized 30 kilograms of cocaine from an apparently empty cargo container found on the tarmac in a secure area of Pearson Airport. The main issues at trial were whether the appellant and his two co-accused – employees of a cargo company working in the secure area – were part of a conspiracy to import the cocaine, or aided and abetted the importation of cocaine. The appellant denied any involvement in the importation of cocaine. He did not seriously contest that he was engaged in a criminal conspiracy with his co-accused, but argued that the evidence was more consistent with a conspiracy to steal baggage than to import cocaine. The three accused were convicted after a trial by jury of aiding or abetting the importation of cocaine and of conspiracy to import cocaine.

[2] The most important evidence at trial was intercepted telephone and text message communications among the three accused. Wiretap evidence showed the accused coordinating with each other to locate and retrieve a shipping container with a particular identification number from the secure area of the tarmac.

[3] The appellant challenged the judicial authorization for the wiretap evidence at a pre-trial Garofoli hearing: R v. Garofoli, [1990] 2 S.C.R. 1421. The basis for the challenge was that the affidavits in support of the wiretap application were not only seriously misleading, but fraudulent, and were therefore incapable of remedy by excision or amplification. The motion judge found no intention to mislead, and held that the errors in the supporting affidavits were minor and correctable through excision and amplification. He dismissed the application and admitted the evidence from the wiretaps. The appellant and his co-accused were subsequently convicted.

[4] The appellant argues on appeal that the wiretap evidence was obtained in a manner that violated his right under s. 8 of the Canadian Charter of Rights and Freedoms not to be subjected to unreasonable search or seizure. He argues that the wiretap evidence ought to have been excluded by the motion judge pursuant to s. 24(2) of the Charter.

[5] The appellant also argues that the trial judge erred in instructing the jury as to the burden of proof.

[6] For the reasons that follow, the appeal is dismissed.

I. The application to exclude the phone records and intercepted communications

The general argument against admissibility

[7] The Crown relied on evidence gained through several production orders, a digital number recorder (DNR) order, and a wiretap authorization. On a pre-trial application, the defence argued that none of the orders were properly obtained and that, absent a proper order, any evidence obtained via these various orders breached s. 8. The focus of the argument was on the affidavit used to obtain the first production order. The appellant argued that affidavit was replete with errors and material omissions. The appellant argued that once those errors were deleted and the exculpatory material improperly omitted added, there was no basis upon which the production order could have been granted. The appellant also argued that if the first production order fell, the subsequent orders, including the wiretap authorization, should fall as well. Similarly, if the first production order stood, the subsequent orders should stand, subject to one additional argument limited to the validity of the wiretap authorization, considered below.

[8] At the pre-trial Garofoli hearing, the defence attacked the honesty of the officer who swore the affidavit in support of the initial production order. That attack failed. The motion judge was satisfied that the errors contained in the officer’s affidavit were not deliberate or intended to mislead. He described them as “innocent mistakes”. The appellant does not challenge that finding on appeal, but now argues that the motion judge made another error: having determined the affiant was not intentionally misleading the court, the motion judge failed to consider whether the various errors in the affidavit in support of the initial production order could be rectified through amplification or excision.

[9] The appellant submits that important parts of the affidavit used to obtain the initial production order were inaccurate, misleading, and demonstrated a failure by the affiant to make the full and frank disclosure required on an ex parte application: R. v. Booth, 2019 ONCA 970, (2019) 386 C.C.C. (3d) 281, at para. 54. He submits that the motion judge erred by using amplification to correct these inaccuracies, because they were not minor, technical, or made in good faith, as inaccuracies correctable by amplification must be: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 59. Had the motion judge instead removed the inaccurate information from the affidavit, the appellant argues, the affidavit could not have supported the first production order.

[10] One of the affiant’s inaccuracies, which the appellant argues was not of a nature that could be remedied – and typical of the several errors raised by the appellant – was the affiant’s account of what he observed on a surveillance video taken inside the Cargo Zone warehouse. The affiant stated in the affidavit used to obtain the initial production order that in watching the video, he, “observed DUNCAN attempt to take possession of cargo container AKE 2219 TS, within approximately an hour of CBSA seizing and removing cargo container AKE 2290 TS from the Cargo Zone warehouse.”

[11] What the affiant was actually able to observe from the video was a person enter the warehouse, stand near another person who was already there, and then leave again. As the motion judge noted, the identities of the figures who appeared on the video were “indiscernible”. Further, the videos did not show “the person believed to be Mr. Duncan doing anything suggestive of an attempt to take possession of cargo container AKE 2219 TS. Mr. Duncan is not seen next to a container, pointing to a container, touching a container or moving a container in these videos.” In short, the affiant’s statement went beyond his actual observations and any inferences that could be unambiguously drawn from those observations.

[12] The motion judge, however, accepted that amplification was available to explain how the affiant came to believe that the video depicted the appellant in the warehouse trying to take possession of the container: the other party depicted in the video told the affiant that it was the appellant, and told the affiant that the appellant had asked him to put container 2219 outside for the appellant to take. The affiant learned this information after he first viewed the video, but before swearing his affidavit. His affidavit included the source of this information, the date on which he received it from the other party depicted in the video, and the date on which he first viewed the video.

[13] In short, the inaccuracy was the result of the affiant conflating information received from different sources into a statement suggesting the information came from the single source identified in that statement. The correct sources of the information could, however, be found in the affidavit.

[14] We are satisfied the motion judge did not err in the manner in which he exercised his discretion with respect to the amplification of the videotape evidence, the amplification of the sources upon which the alleged facts were based, or the excision of certain erroneous statements from the affidavit. Amplification of an affidavit is a flexible remedy. A motion judge has a broad discretion. In exercising that discretion, the nature of the defect in the affidavit is important. If the affiant acted honestly and in good faith in preparing and presenting the affidavit, amplification or excision of parts of the affidavit must be considered by the motion judge.

[15] Even if the affiant acted honestly and in good faith, amplification of the affidavit cannot go so far as to undermine the requirement of prior judicial authorization for the warrant or the order. Nor, however, is amplification limited to errors or omissions in the affidavit which are so minor as to have little, if any, relevance to the ultimate legality of the authorization.

[16] Most of the inadequacies in the affidavit were failures of draftsmanship and, in particular, failures to properly source the facts asserted in the affidavit. In other words, the affiant did not adequately set out the chain of reasoning that led him to come to certain conclusions upon which he based the application. Although it is important that the affidavit be properly sourced, the failure to do so is not inherently misleading, especially in light of the motion judge’s finding that the affiant acted honestly and in good faith.

[17] As with most decisions that involve the exercise of discretion, legitimate arguments can be made favouring the exercise of the discretion differently than it was exercised by the trial judge. That is not enough to warrant appellate intervention. The amplifications and excisions made by the motion judge are consistent with the kinds of corrections that have been made in cases such as R. v. Araujo, at paras. 60-61; R. v. Plant, [1993] 3 S.C.R. 281, at pp. 298-99; and R. v. Lall, 2019 ONCA 317, 432 C.R.R. (2d) 195, at para. 39.

The evidence connecting the appellant to organized crime

[18] The appellant also argues that the motion judge should have satisfied himself that the wiretap was an investigative necessity, and failed to do so. The motion judge did not consider whether the wiretap was an investigative necessity because he was satisfied that the application to authorize the wiretap was made in relation to an offence committed for the benefit of a criminal organization, which brought it within the exception in s. 186(1.1) of the Criminal Code, R.S.C. 1985, c. C-46. The appellant argues that once all the evidence obtained pursuant to the production orders is properly excluded, the affiant did not present enough evidence connecting the appellant and a criminal organization to bring the wiretap authorization within the s. 186(1.1) exception.

[19] We do not agree that the motion judge erred. The appellant’s argument is dependent on the motion judge having erred in his amplification and excision of the original affidavit in support of the initial production order, and that error flowing through to the affidavit in support of the wiretap authorization. As explained above, the motion judge made no error in amplifying and excising the original affidavit in support of the initial production order, and so the attack on the wiretap authorization necessarily fails. The affidavit provided in support of the wiretap authorization provided a basis upon which the issuing judge could conclude there was a connection between the appellant and the organized crime group. That finding disposes of the ground of appeal. We should not be taken, however, as necessarily agreeing with the appellant’s submission that the affiant was required to demonstrate the connection between the appellant and the organized crime group to obtain the authorization sought.

II. The jury instruction argument

[20] The appellant acknowledges that the initial instructions on circumstantial evidence and the burden of proof were correct.

[21] We do not accept that the trial judge erred in his subsequent instructions. He did not, as the appellant contends, instruct the jury that the accused were entitled to an acquittal only if the defence interpretation of the circumstantial evidence was “equally consistent” with the Crown’s version. In those portions of the instruction, the trial judge was referring to the submissions put by counsel to the jury. The trial judge followed his reference to those submissions with a repetition of the burden of proof as it applies to circumstantial evidence:

Obviously, as I have repeatedly instructed you, do not assess the credibility and reliability of the Crown evidence or the defence evidence in isolation, but only upon a consideration of all of the evidence. The fundamental purpose of the above instruction is to make sure you do not decide whether something happened in this case, simply by comparing one version of events against another opposing version of events and then choose the one you prefer or the one you think is somewhat better than the other. That kind of analysis reduces the burden of proof … regardless of how you resolve issues of credibility and reliability in this case you can only convict an accused of an offence, if you are satisfied beyond a reasonable doubt on all the evidence he committed the essential elements of the offence. So that’s simply a reminder at the end of the charge, to properly apply the burden of proof even though it was yesterday morning you heard me instruct you on it.

[22] The above-quoted passage correctly sets out the burden of proof and also reminds the jury of the earlier instructions on the burden of proof, which everyone agrees were accurate.

[23] The trial judge made no error.

Disposition

[24] The appeal is dismissed.

“Doherty J.A.”

“Paul Rouleau J.A.”

“B.W. Miller J.A.”