DATE: 2003-12-15

DOCKET: C35518

COURT OF APPEAL FOR ONTARIO

WEILER, ROSENBERG and BORINS JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

• and -

DONALD WILLIAMS (A.K.A. BUCKSHOT)

Appellant

Counsel: Frank Addario and Heather Pringle for the appellant Bradley Reitz and Frank Au for the respondent

Heard: December 8, 2003

On appeal from the conviction by Justice Roydon Kealey of the Superior Court of Justice on October 5, 2000.

ROSENBERG J.A.:

[1] The appellant appeals from his conviction by Kealey J. and a jury on four counts of conspiracy. While the appellant raised a number of grounds of appeal, the principal ground of appeal concerns the conduct of the application to exclude wiretap evidence. The appellant submits that the trial judge erred in refusing the appellant and his co-accused permission to cross-examine the affiant and the sub-affiants. I agree with that submission and accordingly would allow the appeal and order a new trial.

THE FACTS

[2] In view of my conclusion concerning the conduct of the wiretap application, it is only necessary to provide a brief summary of the facts. The Crown alleged that the appellant was involved in a conspiracy to smuggle liquor and cigarettes from the United States into Canada through the Akwesasne First Nations Reserve. By August 1995, the Cornwall detachment of the R.C.M.P. had begun an investigation into this activity. Significantly, within a relatively short time an undercover officer, Sergeant Nicholson, had infiltrated the smuggling operation run by Ande Fuller and the appellant’s co-accused Randy Jareo. Nicholson saw the appellant with Jareo or his associates on two occasions. However, the Crown’s case against the appellant depended on several telephone calls that were intercepted under an authorization granted on November 17, 1995.

[3] The November 17th authorization was granted in the following circumstances. By November 1995, the Cornwall investigators had begun to prepare their own application for a wiretap authorization. However, the Kitchener detachment of the R.C.M.P. was engaged in a related investigation concerning liquor smuggling and had already obtained a wiretap authorization in September 1995 that was to expire on November 17th. The police agreed to “piggyback” the Cornwall investigation on to the Kitchener investigation and apply for an expanded authorization that would include the Cornwall suspects. The affiant for the expanded authorization was Constable Foster. While Foster (the affiant) had first hand knowledge of the Kitchener investigation, his information about the Cornwall investigation came from the Cornwall officers (the sub-affiants).

[4] The procedure adopted at the trial to deal with the challenge to the wiretap authorization was somewhat unusual. The appellant and his co-accused were permitted to call on the voir dire, as their witnesses, the affiant and four of the Cornwall investigators who supplied information to the affiant about the Cornwall investigation. With this evidence the appellant and his co-accused hoped to demonstrate a basis for cross-examining the affiant and the sub-affiants. If they were permitted to conduct this cross-examination, they then hoped to establish that authorization should be set aside. If the authorization was set aside, the interception of the appellant’s private communications would violate s. 8 of the Canadian Charter of Rights and Freedoms and thus the communications would be liable to be excluded from evidence under s. 24(2) of the Charter.

[5] There seems to have been some confusion at trial as to the scope of the examination of the witnesses on the application. I will return to that issue after considering the evidence that the defence obtained during the voir dire and the trial judge’s ruling. The focus of the voir dire was on the investigative necessity criterion in s. 186 of the Criminal Code. The relevant part of the section is the following:

186. (1) An authorization under this section may be given if the judge to whom the application is made is satisfied

(a) that it would be in the best interests of the administration of justice to do so; and

(b) 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 offence using only other investigative procedures [emphasis added].

[6] It was the defence position that there were other investigative procedures that could have been employed. In fact, other procedures had proved very successful and therefore it was argued that the Crown had not shown that “other investigative procedures were unlikely to succeed” within the meaning of s. 186(1)(b). There is no suggestion that the Crown sought to justify the necessity for the authorization on the two alternatives—other investigative procedures have been tried and have failed or urgency.

[7] In the course of the voir dire, through examination of the affiant and the sub-affiants, the appellant showed that Sergeant Nicholson had been highly successful in infiltrating the Fuller/Jareo smuggling operation to the point that he had been invited to participate as an equal partner in the operation. Nicholson had also offered money-laundering services that the other members of the operation were considering. The officers appeared to concede that both of these ploys if pursued by Nicholson could lead to identifying the “higher-ups” in the conspiracy and provide evidence of Jareo and Fuller’s involvement in money-laundering, two of the key goals of the investigation. There was also a possibility that Nicholson would be able to infiltrate the United States side of the operation. Following the granting of the authorization, Nicholson did travel to the United States to view part of the United States operation.

[8] The police had been able to infiltrate a second undercover officer, Corporal Fair, into the Fuller/Jareo operation, but his involvement was somewhat limited. The police were also using one police agent, Donald Davidson, and may have been able to use the services of a second agent. They were making some use of surveillance from aircraft. They had also identified a distillery and warehouse involved in the smuggling operation.

[9] On the other hand, there were impediments to the continuing undercover operation. In particular, it seems that Sergeant Nicholson may have been known as a police officer to one of the persons suspected to be at the highest level of the conspiracy. Further, physical surveillance on the reserve from the Canadian side was difficult and it was difficult to identify contraband-laden vehicles. The officers also had decided not to pursue the partnership option, although the reasons for that decision were less than clear. In short, the officers offered the opinion that the undercover operation was stalemated.

THE TRIAL JUDGE’S REASONS

[10] The trial judge refused to permit the appellant and his co-accused to cross-examine the affiant and the sub-affiants. The relevant part of his reasons are as follows:

The late Mr. Justice Sopinka in the Garfoli case suggests that cross-examination be available if leave is obtained from the trial judge whose discretion in this regard ought to permit same, where it is necessary to enable full answer and defence, provided the accused can demonstrate on some basis that such a cross-examination will likely provide testimony tending to discredit the existence of any one of the preconditions to an authorization. It seems to me in determining whether the test can be met, the trial judge should not exact a high standard but, indeed, a lenient one.

In this matter I permitted defence counsel to lead and to be freer in eliciting testimony from their witnesses called to support the motion because as police officers they appear somewhat adverse in interest. I am not persuaded in any way that further cross-examination would challenge any of the preconditions for authorization. The overlap in the Kitchener and Cornwall investigations which became known in late October or early November 1995 required full disclosure in the November 17th application. This was done in a lengthy meeting attended by officers Foster, Thompson, Dempster and Butler I believe on November the 9th and was included in Foster’s affidavit.

Obviously, it is difficult, if not impossible, to recount every detail of a complex, lengthy investigation, but it seems to me any shortcoming in the detail disclosed could hardly be considered a material misrepresentation. The areas of concern advanced by the defendants, namely, possible partnership, money laundering and this proposed U.S. surveillance plan, as well as the other grounds set out in their application, even if true do not lead to the conclusion that there was any fraud or misrepresentation which caused an abuse of this court’s process.

Surely, the investigator can and would be expected to consider and explore whatever other avenues might provide fruitful evidence. From both the Cornwall and Kitchener perspectives, all efforts to November 17th had failed and would continue to be unsuccessful in their objective to penetrate the higher echelons of the participants in the criminal activity involved, or to identify unknown co-conspirators, or to learn more detail as to the importation and distribution network and, most importantly, to provide sufficient evidence to prosecute the individuals involved.

It seems to me to permit cross-examinations here would be a colossal waste of the court’s time with no likelihood of generating relevant evidence and, as such, the defendant’s request in this regard is denied [emphasis added].

ANALYSIS

Cross-examination of the affiant and sub-affiants

[11] The test for permitting cross-examination of an affiant whose affidavit has been used to obtain a wiretap authorization is not a stringent one. Sopinka J. set out the test as follows in R. v. Garofoli (1990), 60 C.C.C. (3d) 161 (S.C.C.) at 198:

Leave must be obtained to cross-examine. The granting of leave must be left to the exercise of the discretion of the trial judge. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization, as for example the existence of reasonable and probable grounds.

[12] In the passage I have set out above from his reasons, the trial judge accurately stated this test. However, in my view, when he came to apply the test to the facts of this case he applied too strict a test requiring a basis for finding that there was “fraud or misrepresentation which caused an abuse of this court’s process”. This test is reminiscent of the holding in Franks v. Delaware, 438 U.S. 154 (1978) that was rejected by the Garofoli court. As Sopinka J. pointed out in Garofoli at p. 197, “if the accused can establish, even on a prima facie basis, deliberate falsehood or reckless disregard for truth”, there is no need to cross-examine.

[13] In my view, the appellant made out a case for cross-examination. The statements in the affidavit about the utility of undercover operations and other investigative techniques are conclusory and arguably understate the progress of the investigation, as in this paragraph headed “UNDERCOVER OPERATORS”:

Sergeant NICHOLSON and Cpl. FAIR have successfully purchased contraband from Ande FULLER on 4 occasions. The buys have been useful in identifying the persons associated to FULLER, the locations utilized in the Cornwall area where they are making some of their deliveries, however, this investigative procedure alone cannot identify the unknown conspirators, reveal details of the importation scheme and distribution network, or gather sufficient evidence to prosecute the individuals involved.

[14] In short, the appellant showed a basis for the view that the cross-examination would elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization, namely the investigative necessity requirement. Investigative necessity is a stringent requirement, requiring demonstration that there is, “practically speaking, no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry”: R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.) at para. 29. There was a basis for believing that this exacting standard had not been met. The same might be said here of the use of the undercover officers and police agents.

[15] This case bears some similarity to R. v. Lachance (1990), 60 C.C.C. (3d) 449 (S.C.C.), the companion case to Garofoli. In that case, Sopinka J. noted at p. 458, that the bald assertion in the affidavit that an attempt to use an undercover police officer “would be futile and not result in any further evidence being obtained” was “considerably weakened” by the fact that the police had an undercover informant. He suggested that cross-examination could have revealed that the agent could continue his role in the investigation. He therefore held that the accused should have been permitted to cross-examine the affiant.

[16] The respondent submits that because of the unusual procedure adopted in this case, the appellant, in effect, had the opportunity to cross-examine the affiant and sub-affiants and therefore the trial judge’s decision did not prejudice the appellant’s right to make full answer and defence. As I have noted, the appellant was permitted to call five police officers involved in the investigation, including the affiant. The respondent particularly relies upon the ruling by the trial judge, approximately half-way through the voir dire, that he would give counsel “some leeway in terms of examination in-chief in all of the circumstances” because these witnesses were “not really [the defence’s] witnesses”. He also said that counsel would “be given some latitude in terms of your examination to permit you to lead or cross-examine.”

[17] In my view, this ruling did little more than permit counsel to ask some leading questions. It is apparent that defence counsel did not think that they had the right to cross-examine on the contents of the affidavit or attempt to attack the assertions in the affidavit concerning investigative necessity. Rather, defence counsel continued to operate on the basis of the trial judge’s earlier ruling. That ruling was made in response to an objection by Crown counsel that the defence could not go into “the specific discussions relating to the formulation of the affidavit itself” and could not “[go] behind the affidavit that was before the authorizing judge”. At the very least, it is unclear that defence counsel felt entitled to fully explore the basis for the assertions in the affidavit concerning investigative necessity. This is borne out in counsel’s submissions at the conclusion of the voir dire where he sets out a number of areas that he would explore if permitted to cross-examine.

[18] In my view, the trial judge erred in refusing to permit cross-examination and the respondent has failed to show that no substantial wrong or miscarriage of justice was occasioned by this error.

The other wiretap grounds of appeal

[19] The appellant submits that even if the trial judge did not err in refusing to permit cross-examination, there was sufficient material on the record to demonstrate that the authorization should be set aside. While the trial judge did not have the benefit of the Supreme Court of Canada’s decision in R. v. Araujo, he applied a test that resembles the test set out in that case. He concluded that the investigative necessity requirement had been met. On the limited record that was available I cannot say that he was in error in that conclusion. However, a proper determination of that issue can only be made at the new trial where the defence has the opportunity to more fully supplement the record through cross-examination.

[20] The trial judge held that even if he was wrong and the authorization should be set aside, he would not have excluded the wiretap evidence under s. 24(2). Not surprisingly in view of his conclusion that the authorization was valid, the trial judge did not provide any reasons for his conclusion on s. 24(2). Again, without a complete record it is not possible to properly analyze the application of s. 24(2) to this case, especially those factors going to the seriousness of the violation.

DISPOSITION

[21] Accordingly, I would allow the appeal, set aside the convictions and order a new trial.

Signed: “M. Rosenberg J.A.”

“I agree K.M. Weiler J.A.

“I agree S. Borins J.A.”

RELEASED: DECEMBER 15, 2003