DATE: 20040108

DOCKET: C38311 & C38312

COURT OF APPEAL FOR ONTARIO

WEILER, ROSENBERG and BORINS JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent

• and -

LEON ROBERT BLAIS

Appellant

Christopher Hicks and Sam Scratch for the appellant Carol Brewer and Susan Magotiaux for the respondent

Heard: December 11, 2003

On appeal from the conviction imposed by Justice C. Raymond Harris of the Superior Court of Justice on May 7, 2002.

ROSENBERG J.A.:

[1] The appellant appeals from his conviction by Harris J. following two separate trials commencing in March and May 2002. The results of both trials turned on rulings made by the trial judge concerning the appellant’s rights under s. 11(b) of the Canadian Charter of Rights and Freedoms and the admissibility of evidence seized pursuant to a wiretap authorization and three search warrants. Despite the appellant’s counsels’ very able argument, I have concluded that the appeals must be dismissed. I will briefly address each of the submissions made by the appellant.

UNREASONABLE DELAY

[2] The appellant submitted that his right to a trial within a reasonable time as guaranteed by s. 11(b) of the Charter was violated because of the 23 months from the time the first set of charges was laid until the trial date. The trial judge recognized that this delay required explanation. He carefully examined the causes of the delay and applied the balancing test as laid down in R. v. Morin (1992), 1992 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.). The trial judge found that only a relatively short delay was caused by the conduct of the Crown. In this court, the appellant takes issue with this finding and submits that the trial judge erred in failing to recognize the impact of the last minute joinder of the appellant with his co-accused. The appellant submits that this had a cascading effect and led to substantial delays in the Ontario Court of Justice before the preliminary inquiry was completed.

[3] Having regard to the chronology, I cannot say that the trial judge’s view of the impact of the joinder decision was unreasonable. As a result of the laying of the new information, the September court days were lost. However, new dates were set in early November and the preliminary inquiry commenced at that time. Thereafter, the preliminary inquiry proceeded sporadically as it became necessary to find new dates for continuation. As the trial judge recognized, this was a complex case involving multiple charges. The appellant put the Crown at the preliminary inquiry to strict proof of the provenance and continuity of the many exhibits. This was his right, but it had an impact on the scheduling of the preliminary inquiry. In the result, the original time estimate, apparently of three days, proved woefully unrealistic. I am not persuaded that the trial judge placed insufficient weight on the Crown’s late decision to join up the appellant with his co-accused.

[4] While the time spent in the Ontario Court of Justice to complete the preliminary inquiry was lengthy, once the appellant was ordered to stand trial, the case proceeded very quickly and was ready for trial within a few months. There was some real prejudice to the appellant in that he was in custody during this time. However, a significant portion of the time was attributable to sentences that were imposed while he was awaiting trial. The trial judge’s application of the balancing test was reasonable. I would therefore not give effect to this ground of appeal.

WIRETAP EVIDENCE

Interpretation of [s. 186(2)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec186subsec2_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

[5] Following the arrest of the appellant and several others, the police obtained an authorization to intercept the communications of the appellant and others at four of the ranges at the Hamilton Wentworth Detention Centre and the visitation area at the Centre. The primary focus of the investigation at that time was a homicide. The police were also investigating various break-ins and a conspiracy to commit break and enter. Pursuant to the authorization, the police installed wiretap devices on the telephones on the ranges. The appellant submits that the authorization was granted in violation of s. 186(2) of the Criminal Code, which provides as follows:

s. 186(2) No authorization may be given to intercept a private communication at the office or residence of a solicitor, or at any other place ordinarily used by a solicitor and by other solicitors for the purpose of consultation with clients, unless the judge to whom the application is made is satisfied that there are reasonable grounds to believe that the solicitor, any other solicitor practising with him, any person employed by him or any other such solicitor or a member of the solicitor's household has been or is about to become a party to an offence [emphasis added].

[6] The appellant submits that the telephones on the detention centre ranges fall within the emphasized portion of the section being places “ordinarily used by a solicitor and by other solicitors for the purpose of consultation with clients”. I do not agree with that submission. Inmates awaiting trial may resort to a jail telephone to consult with their lawyers, but the telephone is not a “place” ordinarily used by a solicitor for the purpose of consultation with clients any more than the telephone in an accused’s home or office is such a place. The words of the section must be interpreted having regard to their ordinary meaning in the context of the scheme and purpose of the legislation. The context indicates that the focus of the subsection is on places where lawyers may be when they ordinarily consult with clients, not where the clients may happen to be. Thus, the private interview rooms in the jail where lawyers consult with clients would fall within s. 186(2) as would, for example, the lawyer’s own mobile telephone. But telephones on the ranges in the jail are not places ordinarily used by solicitors.

[7] The authorizing judge did recognize that there was a high probability that accused awaiting trial would use the range telephones to call their lawyers and he imposed strict conditions. Thus, the telephones had to be live monitored and whenever an inmate made a call to a solicitor the monitor was required to stop listening and stop recording and was only permitted to check periodically to ensure that the call was still to a solicitor. These conditions struck an appropriate balance to ensure that the important interest in solicitor client confidentiality was respected.

Investigative necessity

[8] The appellant submits that the investigative necessity requirement in s. 186(1)(b) was not made out. While this argument was made in relation to both the homicide and break and enter investigations, the substantial focus of the appellant’s submission was on the break and enter investigation. The affidavit of Detective Sergeant MacLeod is lengthy and detailed. He set out the steps taken to attempt to continue the investigation including the use of informants, undercover officers, surveillance, search warrants and other investigative means. In my view, it was open to the trial judge to find that the investigative necessity requirement had been made out in the sense that there was “practically speaking, no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry”. See R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 (S.C.C.) at para. 29. It is apparent from the affidavit that the homicide and conspiracy investigations were at a standstill. Suggestions by defence counsel that a possible co-accused be extradited from the United States and that the police put an undercover officer into the jail were not practical alternatives in the context of this particular investigation.

[9] The appellant, however, relies upon the amplified record and, in particular, Detective Sergeant MacLeod’s testimony in which he agreed with the suggestion of defence counsel that the “wiretaps weren’t really a necessity for the break and enters”. The trial judge carefully examined this testimony along with the other evidence given by the officer. He concluded that the officer’s answer to this one question did not derogate from the other information that showed that investigative necessity had been met with respect to conspiracy and accessory after the fact to break and enter. This conclusion was reasonably open on the facts and accordingly, investigative necessity was made out on the homicide, and conspiracy to break and enter investigations. In those circumstances, it becomes unnecessary to decide whether the holding in R. v. Commisso (1983), 1983 160 (SCC), 7 C.C.C. (3d) 1 (S.C.C.) applies in the post-Charter context.

Reasonable grounds

[10] The appellant submits that the affidavit in support of the authorization, as amplified on the hearing before the trial judge, failed to show that there were reasonable grounds to believe that interception of the appellant’s private communications at the detention centre would result in the obtaining of evidence concerning the homicide or the break and enter conspiracy. There were certainly concerns with this aspect of the investigation. The police were aware that the main suspects were in jail and being kept on separate ranges. It was unlikely that wiretaps on the telephones would result in incriminating conversations between the detainees. However, in his affidavit, Detective Sergeant MacLeod set out a plan that he believed would stimulate conversation not only amongst the detainees but between the detainees and the unknown perpetrators and with the detainees’ family members about the offences. The standard of review before the trial judge was a narrow one; if the authorizing judge could have granted the authorization then the trial judge should not interfere. In my view, the authorizing judge could have granted the authorization. The investigative plan together with the other material provided a basis for a belief, beyond a mere hope, that evidence would be obtained.

SEARCH WARRANTS

The seizure of the key

[11] Following the appellant’s arrest and incarceration at the detention centre, the appellant’s personal belongings were seized by the jail authorities and placed in a sealed but transparent plastic bag. Some time later, the police seized a key from a co-accused that opened the door to the residence where some of the stolen goods were stored. As a result, Detective Hahn went to the detention centre to view the appellant’s belongings. The jail authorities permitted him to look at the belongings through the bag but he was not permitted to open the bag or take it away. Detective Hahn saw a key that resembled the key taken from the co-accused. He returned a second time with the co-accused’s key and again, through the bag, compared it to the key seized from the appellant. Having satisfied himself that the keys were likely the same, Detective Hahn then obtained a warrant to seize the key.

[12] The appellant submits that the two inspections of the plastic bag by Detective Hahn were unreasonable searches akin to the warrantless perimeter searches found to be unreasonable by the Supreme Court of Canada in R. v. Grant (1993), 1993 68 (SCC), 84 C.C.C. (3d) 173 (S.C.C.). The appellant submits that this tainted the search warrant later used to seize the key. In my view, this is not an apt analogy. The search conducted in Grant was of the accused’s private dwelling in which he had a reasonable expectation of privacy. In this case, once the state had seized his belongings, the appellant had a greatly reduced expectation of privacy.[^1] In R. v. Edwards (1996), 1996 255 (SCC), 104 C.C.C. (3d) 136 (S.C.C.) at 150‑51, Cory J. set out the factors a court should consider in determining whether a person has a reasonable expectation of privacy:

The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:

(i) presence at the time of the search;

(ii) possession or control of the property or place searched;

(iii) ownership of the property or place;

(iv) historical use of the property or item;

(v) the ability to regulate access, including the right to admit or exclude others from the place;

(vi) the existence of a subjective expectation of privacy; and

(vii) the objective reasonableness of the expectation.

[13] Considering those circumstances, in my view, the appellant’s expectation of privacy was that the state would preserve the goods and return them to him upon his release. He could not reasonably expect that agents of the state would not inspect those goods, although he could expect that the police would obtain a search warrant before actually taking them out of the possession of the gaoler who was under a duty to safeguard them. This is exactly what Detective Hahn did in this case and I therefore see no violation of s. 8. Even if there was, this is manifestly a case where the evidence would not be excluded under s. 24(2) of the Charter given the obvious good faith by the officer and his attempts to comply with the law.

The 718 Cannon warrant

[14] The appellant attacks the validity of this search warrant principally on the basis that the affiant, Detective Hahn, failed to make full disclosure to the justice of the peace of frailties with the credibility of the confidential informer. The trial judge fully reviewed those omissions as revealed in the voir dire. He excised parts from the affidavit to conform with the evidence as disclosed on the voir dire but concluded that there still remained a basis upon which the warrant could have been granted. He also found that Detective Hahn was not attempting to mislead in his affidavit and acted in good faith. Those findings were reasonably open on the record and therefore there is no basis for interfering with the trial judge’s conclusion that the warrant was valid.

The Queen Street warrant

[15] The appellant submits that the material in the information to obtain this warrant did not demonstrate that there were reasonable grounds to believe that the property sought to be seized would provide evidence of the break and enters. In my view, there was compelling evidence set out in the information from which the justice of the peace could conclude that there was a link between the offences and the goods in the apartment. The warrant was therefore valid.

DISPOSITION

[16] Accordingly, I would dismiss the appeals from conviction. In accordance with counsel’s submission at the hearing of the appeal, the appeal from sentence is dismissed as abandoned.

Signed: “M. Rosenberg J.A.”

“I agree K.M. Weiler J.A.”

“I agree S. Borins J.A.”

RELEASED: JANUARY 8, 2004

[^1]: There was no suggestion that the initial seizure of the goods was unlawful or unreasonable. Such seizures are authorized by regulations made pursuant to Ministry of Correctional Services Act. See R.R.O. 1990, Reg. 778, s.10.