DATE: 20060412
DOCKET: C41512 C41565 C41579
COURT OF APPEAL FOR ONTARIO
FELDMAN, JURIANSZ AND MACFARLAND JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Jennifer Gleitman For the appellant Norman Paris
Respondent
Ravin Pillay
For the appellant
- and -
Jean-Guy Normand
NORMAN PARIS, NORMAN LAJEUNESSE AND JEAN GUY NORMAND
C. Michaelson For the respondent
Appellants
Heard: March 23, 2006
On appeal from the conviction by Justice Sandra Chapnik of the Superior Court of Justice dated December 11, 2003 and from the sentence imposed by Justice Sandra Chapnik dated January 14, 2004.
MACFARLAND J.A.:
[1] The appellants were tried before Chapnik J. and a jury on charges of possession of and conspiracy to traffic in cocaine.
[2] At the commencement of the trial counsel on their behalf brought an application pursuant to sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms to exclude evidence derived both through the interception of private communications and pursuant to a search warrant on the basis that the requisite grounds in support of the warrants had not been demonstrated. Their application was dismissed and the matter proceeded to trial.
[3] The appellants were convicted on both counts. Normand received a sentence of twelve years incarceration and Paris, seven and a half years.
[4] The appellants appeal their convictions and seek leave to appeal their sentences. The appellant Lajeunesse wholly abandoned his appeal prior to the hearing.
[5] The position of the appellants is succinctly set out in the respondent's factum as follows:
They argued that the first of two authorizations to intercept communications was invalid, as the affidavit used to obtain the authorization did not set out reasonable and probable grounds to justify the issuance of the authorization, once certain misstatements and errors in the affidavit were taken into account. The appellants also argued that the affidavit failed to establish that other investigative techniques were unlikely to succeed, as required by section 186(1)(b) of the Criminal Code. It was common ground at trial that if the first authorization was invalid, then the second authorization and a general warrant (both of which had resulted in the seizure of evidence implicating the Appellants) also must fail.
[6] The trial judge ruled there was no Charter violation. She found that the errors made by the affiant were simple, minor and inadvertent and the affiant did not intend to mislead the issuing justice. The trial judge held that the grounds set out in the affidavit, as amplified on review, were sufficient to justify the issuance of the authorization. She also held, given the nature and objectives of the investigation, the statutory precondition of investigative necessity had been met.
[7] The role of the reviewing judge as stated in R. v. Araujo (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 at 471 is:
The reviewing judge does not stand in the same place and function as the authorizing judge. He or she does not conduct a rehearing of the application for the wiretap. This is the starting place for any reviewing judge, as our court stated in Garofoli, supra, at p. 1452:
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 the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, the sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
[8] The Crown concedes there were some errors in the affidavit of Constable Christensen which was filed in support of the authorization. Errors in and of themselves do not, however, vitiate the authorization. The court is required to consider the nature of the errors and the underlying purpose of such. Erroneous information must be excised. If the errors were made despite good faith on the part of the police the reviewing justice is entitled to amplify the record and correct the errors. Again, the comments of the court in Araujo, supra, at p. 474 are apposite:
Thus in looking for evidence that might reasonably be believed on the basis of which the authorization could have issued, the reviewing court must exclude erroneous information. However, if it was erroneous despite good faith on the part of the police, then amplification may correct this information.
[9] The first question is: did reasonable and probable grounds exist, at the time the application was made, to believe that offences were being committed and that interception of the private communication in question will afford evidence of the crime.
[10] In this respect the trial judge reviewed the evidence which the police had obtained from the agent informer including:
- that he provided detailed information as to Walter Kim's (the target) background and drug dealing activities which included direct dealings with him
- telephone calls made to Kim's cellular phone, his address, the automobile he drove and his physical description which were verified by surveillance
- the meetings between the agent, the undercover officer and Kim when cocaine was purchased and discussion had about obtaining in excess of two kilos from Mr. Kim's "boss"
which she concluded provided "direct and compelling evidence of the reliability of the agent's information". Once the information provided by the agent was corroborated as it was by the investigative steps of the undercover and surveillance officers there was a credible basis to believe that Kim was part of an operation capable of distributing multi kilos of cocaine. She concluded that on the whole of the information set out in the affidavit, after the excisions and amplifications, there were reasonable and probable grounds which met the statutory requirements. Her conclusions are supported by the evidentiary record before her and her findings are entitled to deference in this court. R. v. Grant (1999), 1999 3694 (ON CA), 132 C.C.C. (3d) 531 at 540.
[11] The major argument advanced on behalf of the appellants was that the affidavit disclosed that there was no investigative necessity for the issuance of the authorization. They rely in particular on what they characterize as the "false" statement which appears in paragraph 158 of the affidavit under the heading: "Investigative Necessity: The Use of Non-Wire Tap Investigative Procedures".
[12] That paragraph reads:
- The information that has been provided by the agent has been useful in identifying the main target, Walter Kim. Future information supplied by the agent will be used as it becomes available. The agent has been successful in introducing Constable Tomei to the target. However, this investigation technique alone will not allow us to identify the unknown conspirators, learn details of the importation and distribution network or gather sufficient evidence to prosecute the individuals involved. The target has indicated to the agent that he did not wish to meet with Constable Tomei again.
[13] It is the last sentence which causes the difficulty. The appellants say that the statement is false and it can only have been intended to mislead the authorizing judge.
[14] The evidence discloses that following a meeting on August 5, 1998, among the agent, the undercover officer Tomei and the target Kim, Kim called the agent and told him he thought the undercover was either a big time drug dealer or a cop and he didn't want to have anything more to do with him. However, between that phone call and August 12, 1998 Kim did meet with the agent and Tomei again and offered to introduce Tomei to his "boss" for a fee of $2000. These facts appear in paragraphs 50 through 52 of the affidavit, but are not repeated under the section dealing with investigative cause.
[15] It appears that the affidavit was drafted in stages, in part between August 5 and August 12. The new information before the August 12 meeting was added to the factual part of the affidavit but was not factored into the investigative necessity portion. It is suggested that the omission of this important evidence from the section dealing with investigative necessity was deliberate and was done to reinforce and support the affiant's statement that without the wiretap "the main objective in identifying the target's suppliers of the cocaine and in identifying the route of the distribution network will not be met".
[16] The appellants argue that there was no need for a wiretap where Kim had offered to introduce the undercover officer to his supplier. In dealing with the argument the trial judge concluded:
Many like cases underline the difficulties police officers have in catching alleged ringleaders in organized gangs and conspiracies. The nature of the investigation here involved potential participants in various levels of the criminal scheme, unknown to one another and to those at the lower echelons of the alleged drug conspiracy; and its focus evolved over time. I find Constable Christensen's belief that it was unlikely that the objectives of the police could be satisfied by conventional means to have been reasonably based.
and further:
on a common sense review of the totality of the circumstances practically speaking, there was in my view, other than the impugned interceptions, no reasonable alternative method of investigating the particular allegations of criminal activity in this matter.
and further:
After reviewing the allegations in the context of the officer's admissions and responses and the totality of the evidence, I am satisfied that all of the inaccuracies amplified or corrected by Constable Christensen represented simple, minor or inadvertent errors committed by him in good faith.
[17] As the Crown has submitted in argument, the inquiry into investigative necessity is informed by the objective of the investigation. It is clear from the record that very early on the objective of the investigation was wider and broader than simply bringing Kim and his supplier to justice. The Investigative Planning Report dated June 23, 1998 lists the investigational objectives:
(a) infiltrate and dismantle Chong's[^1] drug organization in greater Toronto area
(b) determine travel routes and methods of transportation to bring drugs from Montreal to Toronto;
(c) determine and attempt to infiltrate the Montreal drug organization that supplies Chong;
(d) learn source country trade routes and importation methods in which the cocaine enters Canada
[18] If one omits the last sentence from paragraph 158, the balance of the paragraph is accurate and sufficient to support the wide view of the investigation. Further it is apparent that the agent would be of little further assistance in the wide view of the investigation. His usefulness was exhausted when he introduced the undercover to Kim.
[19] As Christensen said in cross-examination, the purpose of the investigation was to "go up the ladder" to the higher echelon. He did not believe that an undercover officer alone or traditional techniques could achieve that objective. The purpose of this investigation was not to remove street dealers and their suppliers. It was of a larger scale – looking at finding out how the drugs were being imported into the country.
[20] Christensen's evidence is this respect was corroborated by that of Officer Marshall where in his cross-examination he was asked:
Q. But you know the focus of the investigation was trying to get at people in Montreal who were bringing the stuff in from the ships.
A. Correct.
Q. Is that right?
A. Correct.
Q. And that was pretty well from the start?
A. Correct.
Q. The focus if you can call it that.
A. Correct.
[21] The appellants' position is that the police were obliged to have the undercover take Kim up on his offer to meet his supplier before they could legitimately seek the wiretap authorization.
[22] The simple yet clear answer – on the evidence – is that this would not have assisted the police in identifying the importers and distributors. As noted in R. v. Ito (1987), O.J. No. 925 at p. 8.
I think that on such an application the judge would be entitled, if he or she saw fit to do so, to place considerable weight on the police officer's opinions as to the probable success of various types of possible investigative procedures in different types of cases. I hazard the view that police officers probably know more about such matters than most judges.
[23] Again the trial judge's conclusion that the requirement of investigative necessity was met on the facts of this case is amply supported by the evidence and is entitled to deference in this court.
[24] Lastly it has been argued that Christensen's affidavit should be discounted entirely and he found to be not credible. It seems that the Crown supplied Christensen with a copy of the appellant's factum which was going to be used to argue the Garofoli application. The factum was not filed on this appeal but I am told it detailed the alleged factual errors in Christensen's affidavit and gave him a "heads up" as it were to the thrust of the appellants' proposed cross-examination. The appellants argue it was improper for Crown counsel to provide the main witness for the Crown with the factum.
[25] It would have been preferable had Crown counsel not supplied the factum to the main witness, particularly on the facts here where it would be argued that the factual inconsistencies undermined the credibility of the witness.
[26] I would decline, however, to make a blanket ruling of the type requested by counsel for the appellants that it is never appropriate for counsel to supply a witness with the opposite party's factum.
[27] Each case must be considered on its own facts and it may be that there are circumstances where such conduct is entirely appropriate.
[28] In any event, the trial judge rejected the appellants' argument and found Christensen to be a credible witness. She set out her reasons for her finding in some detail. The trial judge is far better situated than is this court to make credibility findings where she had the opportunity to see and observe the witness. I would not interfere with her finding in this respect. I would dismiss the appeal.
[29] Finally the appellants seek leave and, if granted, appeal their sentences.
[30] Mr. Normand was sentenced to twelve years and Mr. Paris to seven and one-half years.
[31] While the sentences are high, they are within the range for those trafficking in multi-kilos of cocaine.
[32] The trial judge ought not to have considered the evidence which came to light only on the voir dire in determining what an appropriate sentence should be. The trial judge should have considered only the evidence at trial, absent any agreement that the voir dire evidence could be used.
[33] Even excluding that evidence from consideration, there was still, as the trial judge described, "overwhelming" evidence that the appellants were involved in trafficking multi-kilos of cocaine.
[34] The sentences are not demonstrably unfit; they are within the range and I would not interfere with them. I would grant leave to appeal sentence but dismiss the appeal.
RELEASED: April 12, 2006 "KNF"
"J. MacFarland J.A."
"I agree K. Feldman J.A."
"I agree R.G. Juriansz J.A."
[^1]: Mr. Chong was identified early on in the investigation as the owner of the cell phone and one of the motor vehicles used by Kim from time to time.