DATE: 20040331
DOCKET: C39608
C39609
C39610
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Appellant) – and – CARLO MONTEMURRO, PATRICK KELLY, LEX MCKEE and RICHARD LEPP (Respondents)
BEFORE: LASKIN, FELDMAN JJ.A. and BENOTTO J. (ad hoc)
COUNSEL: Richard A. Kramer
for the appellant
Peter Copeland for the respondent Carlo Montemurro
Bernard H. Hawkins for the respondent Richard Lepp
and Patrick Kelly, respondent in person
HEARD: March 18, 2004
RELEASED ORALLY: March 18, 2004
On appeal from the acquittals entered by Justice Nick Borkovich of the Superior Court of Justice, sitting without a jury, dated January 31, 2003.
E N D O R S E M E N T
[1] The Crown appeals the ruling of the trial judge, which excluded the evidence obtained from the initial wiretap authorization issued under s. 185 of the Criminal Code. The Crown advances two submissions in support of its position:
The trial judge erred in failing to hold that there was at least some evidence that supported the authorization; and
Alternatively, even if the search following the wiretap authorization infringed the respondents’ rights under s. 8 of the Charter, the trial judge erred in failing to admit the evidence under s. 24(2).
We agree with both submissions.
[2] The affidavit evidence in support of the authorization was not challenged. That evidence meets the requirements of both ss. 186(1)(a) and (b) of the Criminal Code. Dealing first with s. 186(1)(a), the respondents do not contest that there are reasonable and probable grounds to believe that an offence has been committed. On this branch of the statutory prerequisites, the only question is whether Corporal Barrington’s affidavit provides some basis to say that the authorization will afford evidence of the offence. We are satisfied that it does. Corporal Barrington’s unchallenged evidence at paras. 8-16 of his affidavit gives reasonable grounds to believe that marijuana was being imported, and intercepting Mr. Richard Lepp’s communications will afford evidence of that offence.
[3] Dealing next with s. 186(1)(b) of the Code, the question of investigative necessity, we are satisfied that the evidence of Corporal Barrington at paras. 80-85 of his affidavit shows that other investigative procedures are unlikely to succeed. Corporal Barrington’s statements could perhaps have been more fully explained, but his evidence is not contested and does give some basis for meeting the investigative necessity requirement. For these reasons we would give effect to the Crown’s first submission.
[4] However, even were we to accept the trial judge’s ruling that the wiretap was not authorized and therefore the subsequent search infringed the respondents’ s. 8 rights, we think that the seized evidence should have been admitted. The respondents acknowledge that the evidence was not conscriptive and that its admission would not affect the fairness of the trial. Although a breach of privacy rights is always serious, in this case the seriousness of the breach is diminished because of the following: the police reasonably relied on a judicial authorization issued by the Superior Court; that authorization appeared valid on its face; and the respondents have not alleged that Corporal Barrington’s affidavit was tainted by misrepresentation or non-disclosure.
[5] Finally, excluding the evidence would bring the administration of justice into disrepute. In addition to what we have already said, we point out that this was a large‑scale drug smuggling operation involving serious offences.
[6] Accordingly, we allow the appeal, set aside the acquittals and order a new trial.
“John Laskin J.A.”
“K. Feldman J.A.”
“M.L. Benotto J. (ad hoc)