Her Majesty the Queen v. Ebanks [Indexed as: R. v. Ebanks]

97 O.R. (3d) 721

Court of Appeal for Ontario,

MacPherson, Blair and Rouleau JJ.A.

December 2, 2009

Charter of Rights and Freedoms -- Search and seizure -- Interception of private communications -- Garafoli -- Reviewing judge finding that affiant of affidavit in support of application for wiretap omitted and misstated some evidence relating to accused's motive and opportunity to commit murder -- Reviewing judge exceeding his jurisdiction by excising all information relating to motive and opportunity from affidavit -- Reviewing judge not having authority to exclude correct information -- Affidavit with correct information left intact disclosing ample grounds to support authorization -- Evidence not supporting reviewing judge's finding of bad faith, impropriety or incompetence on part of affiant -- Reviewing judge erring in finding that Crown agent failed to carry out his duties -- Trial judge's finding that was systemic failure shown by Crown's conduct based on palpable and overriding errors of fact based on misconception of legal obligations of Crown -- Crown agent not having duty to undertake thorough review of material parts of investigation only that affidavit complying with legal and procedural requirements for issuance of search warrant.

The accused was charged with attempted murder and other offences as a result of intercepted communications between him and his co-accused. The authorization to intercept those communications was issued in the course of a related murder investigation in which the accused was a suspect. On a voir dire to determine whether the intercepted conversations should be admitted, the trial judge sharply criticized both the police affiant of the affidavit in support of the application for the wiretap authorization and the Crown agent who supervised the wiretap application. He found that the affiant had omitted and misstated some evidence relating to the accused's motive and opportunity to commit the murder and that his preparation of the affidavit amounted to a reckless disregard for the truth and for the role of the judge on an ex parte application. He also found it unlikely that the Crown agent independently reviewed the police investigation and stated that that failure was indicative of a breakdown of the system regarding the role of Crown agents in Ontario's criminal justice system. As a result, he excised all information in the affidavit relating to motive and opportunity. He then held that the issuing judge could not have issued an authorization on what little information remained. As a remedy, pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, he excluded the evidence of the intercepted communications. The accused was acquitted. The Crown appealed.

Held, the appeal should be allowed.

The trial judge exceeded his jurisdiction in excising all information relating to motive and opportunity from the affidavit, even the correct information. There is no authority for a reviewing judge to exclude correct information. The affidavit, properly considered with the correct information intact, disclosed ample grounds to support a wiretap authorization.

Some of the trial judge's findings about alleged omissions in the affidavit were incorrect or overstated the materiality of the omission. So long as the affiant [page722] ensures that a full and frank statement of the information is provided to the issuing justice, the affiant is permitted some discretion about what should be included, given the need for the affidavit also to be "clear and concise". The alleged errors were not indicative of malfeasance or incompetence and there was no basis to support the trial judge's findings to the contrary. The evidence did not support the trial judge's finding of bad faith, impropriety or incompetence on the part of the police affiant. The trial judge's findings critical of the affiant's conduct were palpable and overriding errors that directly affected his Charter analysis.

Moreover, his criticism of the Crown agent and his finding of "systemic breakdown" were based on a misunderstanding of the Crown's agent's role in law. The Crown agent does not have a duty to undertake a thorough independent investigation into the material aspects of the investigation. Rather, the Crown agent has a gate-keeping function to ensure the procedural and legal compliance of the affidavit. The Crown's role is not that of an investigator and the differences between the distinct roles played by the Crown and the police should be maintained. When applying the proper standard regarding the Crown agent's duties to this case, there is no basis for the trial judge's conclusion that the Crown failed in his duty. The trial judge's conclusion to the contrary was based on palpable and overriding errors of fact based on a misconception of the role of the Crown agent. These errors were fundamental to his conclusion that the wiretap evidence should be excluded and form an independent basis upon which the appeal should be allowed.

APPEAL by the Crown from the judgment of Trafford J., [2007] O.J. No. 2412, 74 W.C.B. (2d) 260 (S.C.J.) for an acquittal on charges of attempted murder, conspiracy to commit murder and counselling to commit murder.

Cases referred to R. v. Araujo, [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65, 2000 SCC 65, 193 D.L.R. (4th) 440, 262 N.R. 346, J.E. 2001-74, 143 B.C.A.C. 257, 149 C.C.C. (3d) 449, 38 C.R. (5th) 307, 79 C.R.R. (2d) 1, 48 W.C.B. (2d) 65; R. v. Finlay and Grellette (1985), 1985 CanLII 117 (ON CA), 52 O.R. (2d) 632, [1985] O.J. No. 2680, 23 D.L.R. (4th) 532, 11 O.A.C. 279, 23 C.C.C. (3d) 48, 48 C.R. (3d) 341, 18 C.R.R. 132, 15 W.C.B. 110 (C.A.); R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, 116 N.R. 241, J.E. 90-1684, 43 O.A.C. 1, 36 Q.A.C. 161, 60 C.C.C. (3d) 161, 80 C.R. (3d) 317, 50 C.R.R. 206, 11 W.C.B. (2d) 342; R. v. Grant, 1999 CanLII 3694 (ON CA), [1999] O.J. No. 327, 117 O.A.C. 345, 132 C.C.C. (3d) 531, 41 W.C.B. (2d) 220 (C.A.); R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343, [2005] S.C.J. No. 67, 2005 SCC 66, 341 N.R. 147, [2006] 4 W.W.R. 403, J.E. 2005-2120, 217 B.C.A.C. 65, 49 B.C.L.R. (4th) 33, 201 C.C.C. (3d) 449, 33 C.R. (6th) 241, 136 C.R.R. (2d) 85, 67 W.C.B. (2d) 400, EYB 2005-97678; R. v. Schreinert, 2002 CanLII 44932 (ON CA), [2002] O.J. No. 2015, 159 O.A.C. 174, 165 C.C.C. (3d) 295, 54 W.C.B. (2d) 202 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 8, 24(2) Criminal Code, R.S.C. 1985, c. C-46, ss. 185(1) [as am.], 186 [as am.]

Michal Fairburn and Frank Au, for appellant. David Harris, for the respondent. [page723]

The judgment of the court was delivered by

MACPHERSON J.A.: -- A. Introduction

[1] The Crown appeals from the judgment of Trafford J. dated June 20, 2007, granting the respondent's application under s. 24(2) of the Canadian Charter of Rights and Freedoms to exclude intercepted private communications.

[2] The trial judge held that the evidence obtained pursuant to the interceptions violated s. 8 of the Charter because judicial authorization for the interceptions was improperly obtained through a combination of improper police and prosecutorial behaviour.

[3] The trial judge excluded the evidence under s. 24(2) of the Charter because, in his view [at para. 265], the breaches of the respondent's s. 8 rights were serious and the admission of the improperly obtained evidence "would undermine the reputation of the administration of justice".

[4] After the trial judge's ruling, the Crown called no evidence at trial and the respondent was acquitted on charges of attempted murder, conspiracy to commit murder and counselling to commit murder. B. Facts (1) The parties and events

[5] The events giving rise to the appeal took place during an eight-month-long chain of shootings in Toronto that left four young men dead. The Crown's theory was that the shootings were all gang-related. However, it was only the last shooting that gave rise to the charges that led to this appeal.

[6] On October 27, 2002, Jermaine and Kevin Ebanks were shot dead. They were the brothers of the respondent, Nicholas Ebanks.

[7] On November 9, 2002, Ricardo Greenland ("Heavy D"), the Ebanks brothers' alleged killer, was shot dead.

[8] On February 2, 2003, Matthew Osborne was shot dead as he was leaving a party.

[9] The police investigating these crimes were of the view that the Greenland and Osborne murders were carried out by the respondent and other gang members in retaliation for the murder of the respondent's brothers.

[10] On June 17, 2003, Kevin Walters was shot at but not hit. Intercepted conversations between the respondent and [page724] the co-accused, Dwayne Campbell, appeared to show that the two of them had planned the shooting. It is this incident that led to the three charges against the respondent. [See Note 1 below]

[11] The intercepted communications that led to the charges against the respondent and Campbell arose not from the failed attempt to shoot Walters, but rather from the murder of Osborne four months earlier.

[12] During their investigation of the Osborne murder, police received a good deal of information suggesting that the respondent and Campbell were responsible for the murder. In June 2003, the police applied for judicial authorization to intercept their private communications. In support of the application, the police filed a 155-page affidavit and about 200 pages of appendices sworn by Detective Savas Kyriacou of the Toronto Police Service Homicide Squad. The affidavit summarized in significant detail the Osborne murder investigation, including evidence of the co-accuseds' alleged motive and opportunity to commit the murder.

[13] On June 13, 2003, German J. issued the authorization. Four days later, the attempt to shoot Walters took place. The police intercepted conversations between the respondent and Campbell that led to their arrest for the attempted murder of Walters. (2) The ruling

[14] At trial, a voir dire was held to determine whether the intercepted conversations should be admitted as evidence. Part of the record on the voir dire was the seven-day cross- examination of Detective Kyriacou on his affidavit that had taken place during the preliminary inquiry in August 2005. Detective Kyriacou did not testify at the trial voir dire.

[15] In a 317-paragraph ruling, the trial judge sharply criticized both Detective Kyriacou and the Crown agent, Philip Enright, appointed to supervise the Criminal Code, R.S.C. 1985, c. C-46, Part VI wiretap authorizations. He stated [at para. 237] that "Detective Kyriacou's preparation of this affidavit amounted to a reckless disregard for the truth and for the role of the judge on an ex parte application". He also found it unlikely [page725] that the Crown agent independently reviewed the police investigation and stated [at para. 238] that this failure was "indicative of a breakdown of the system in this case".

[16] As a result, the trial judge chose to excise all information in the affidavit related to motive and opportunity -- which he found contained certain misstatements or omissions -- rather than to focus on the correct information. The trial judge then held that the issuing judge could not have issued an authorization on what little information remained in the affidavit. As a remedy, pursuant to s. 24(2) of the Charter, the trial judge excluded the evidence of the intercepted private communications. There was virtually nothing left of the Crown case. The Crown called no evidence and the trial judge acquitted the respondent.

[17] The Crown appeals. C. Issues

[18] In its factum and in its oral argument, the Crown contended that the trial judge committed eight reversible errors in his ruling. In the view I take of this appeal, I would reduce the issues to two and frame them more broadly than the Crown: (1) Did the trial judge exceed his jurisdiction as a reviewing judge, in particular by (a) excising all information relating to motive and opportunity from the affidavit, instead of only erroneous information; and (b) finding that there was insufficient information in the affidavit to support the authorization? (2) Did the trial judge make palpable and overriding errors of fact and errors of law in his treatment of the conduct of both the police affiant and the Crown agent? D. Analysis

[19] I begin by noting that there are two contexts within which standards of review are in play in this appeal, namely, the relationship between the trial or reviewing judge (Trafford J.) and the authorizing or issuing judge (German J.) and the relationship between this court and the trial judge.

[20] Judges reviewing wiretap affidavits, or any materials in support of prior judicial authorizations, work within a narrow jurisdictional compass. In R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, [page726] Sopinka J. summarized the standard of review, at p. 1452 S.C.R.:

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, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[21] The sole function of the reviewing court is to assess the record that was before the issuing judge, as amplified on review, and determine whether the authorization could have issued. This review has nothing to do with whether the reviewing court would have issued the authorization, as a Garofoli application at trial must not become a hearing de novo: see Garofoli, at p. 1452 S.C.R. Nor is the review to take on the markings of a trial, where the truth of allegations is explored. As noted by Charron J. in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, [2005] S.C.J. No. 67, at para. 30, "the review is simply an evidentiary hearing to determine the admissibility of relevant evidence about the offence obtained pursuant to a presumptively valid court order" (emphasis in original).

[22] In a similar vein, the appeal court must demonstrate deference to the reviewing judge. As explained by Charron J.A. in R. v. Grant, 1999 CanLII 3694 (ON CA), [1999] O.J. No. 327, 132 C.C.C. (3d) 531 (C.A.), at para. 18:

This court is also a reviewing court and the test in Garofoli is applicable on this appeal. In addition, the usual deference is owed to the findings of the trial judge in her assessment of the record "as amplified on the review" and her disposition of the s. 8 application. In the absence of an error of law, a misapprehension of the evidence or a failure to consider relevant evidence, this court should not interfere with the trial judge's conclusion.

[23] Against this backdrop, I turn to the issues raised by the appeal. (1) Excess of jurisdiction

[24] The Crown contends that the trial judge exceeded his jurisdiction in two fundamental respects: first, by excising all information relating to motive and opportunity from the affidavit; and second, by finding that there was insufficient information in the affidavit to support the authorization. I agree with both of these submissions. [page727] (a) Excision of information

[25] In his ruling, the trial judge stated, at para. 233: "Third, the affidavit, and its appendices, consist of about three hundred and fifty pages. Most of the evidence in the affidavit was correct" (emphasis added).

[26] The trial judge found, however, that the affiant had omitted and misstated some information relating to the respondent's motive and opportunity to commit the murder of Osborne. His remedy for this omission was "to delete from the affidavit the evidence relating to the motive of the crime and the opportunity of Nicholas Ebanks to commit it" (at para. 212).

[27] In my view, in excising all information relating to motive and opportunity from the affidavit, even the correct information, the trial judge exceeded his jurisdiction.

[28] It is settled law that a reviewing judge must exclude erroneous information from an affidavit supporting a wiretap authorization: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65, at paras. 56-58. However, there is no authority for a reviewing judge to exclude correct information. Instead, the proper approach is for the reviewing judge, after excluding the erroneous information, to assess the affidavit as a whole to see whether there remains a basis for the authorization in the totality of the circumstances: see Garofoli, at p. 1454 S.C.R., Araujo, at paras. 54-60, and Pires; Lising, at para. 30. The trial judge did not conduct his review on this basis. (b) Sufficiency of information to support authorization

[29] On the question of the sufficiency of information to support the authorization, the trial judge concluded, at para. 241: "In my view, the issuing judge could not have issued an authorization to intercept the private communications, given my deletions from the affidavit."

[30] In my view, the trial judge erred in so concluding. I repeat what Sopinka J. said in Garofoli, at p. 1452 S.C.R., about the standard of review to be applied by a reviewing judge:

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.

[31] In Araujo, at paras. 51 and 54, Lebel J. stated the test in this fashion:

In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at [page728] least some evidence that might reasonably be believed on the basis of which the authorization could have issued. . . . . .

An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems. Again, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge. (Emphasis in original)

[32] Applying this test to the authorization in this case, I am of the view that the affidavit, properly considered with the correct information intact, disclosed more than ample grounds to support a wiretap authorization. The affidavit set out the following facts: -- three anonymous tips identified either the respondent or Campbell as being involved in Osborne's murder; -- two witnesses told police that word on the street was that the respondent was involved in the murder; -- there was evidence of motive, namely, that Campbell and the victim had had a falling out despite having been friends at some point, and that the Osborne murder was related to the murder of the respondent's brothers four months earlier; -- two witnesses saw the respondent at the party where Osborne was shot; and -- there was substantial cellphone communication between the respondent and Campbell, with Campbell being very near the murder scene immediately before Osborne's murder.

[33] The Crown concedes that the evidence did not disclose sufficient grounds on which to charge the respondent with Osborne's murder. However, the test on a review of a wiretap authorization is not whether there were reasonable grounds to lay charges against the individual, but rather whether there were reasonable grounds to believe that interception of his communications may assist in the investigation of the offence: see R. v. Finlay and Grellette (1985), 1985 CanLII 117 (ON CA), 52 O.R. (2d) 632, [1985] O.J. No. 2680 (C.A.), at p. 656 O.R.; R. v. Schreinert, 2002 CanLII 44932 (ON CA), [2002] O.J. No. 2015, 165 C.C.C. (3d) 295 (C.A.), at para. 43. In my view, the facts set out in the previous paragraph easily satisfy this test. It was not necessary for the trial judge in effect to conduct a trial [page729] as to whether the reliability of the anonymous tipsters, the reliability and veracity of what the witnesses told the police, and the other evidence could be established beyond a reasonable doubt. (2) The reviewing judge's treatment of the police affiant and the Crown agent

[34] The trial judge made many critical comments about the conduct of the police affiant, Detective Kyriacou, and the Crown agent, Philip Enright. Though they vary in their wording, several of the trial judge's comments generally asserted some degree of bad faith or impropriety on the part of the police affiant. Other comments criticized the role undertaken by the Crown agent in this case, as well as the role of Crown agents in Ontario's criminal justice system generally. In my view, these findings constitute either palpable and overriding errors of fact or legal errors. These findings were central to the trial judge's Charter analysis (both s. 8 and s. 24(2)) and are a cornerstone in his reasons for excluding the wiretap evidence. As such, these errors constitute an independent ground on which the appeal must be allowed. (a) The police affiant

[35] The trial judge asserted three times that the affiant "intentionally omitted . . . material facts" pertaining to three main categories of evidence in the affidavit: opportunity, motive and cellphone records (at paras. 235, 262, 285). In a similar vein, the trial judge found that the affiant made "intentional mis-statements, errors or omissions of material facts" (para. 203). In a particularly critical comment, the trial judge twice said that the affiant's approach "was, in part, to disclose the information that supported the application and to omit information that detracted from it" (at paras. 210, 280).

[36] On a different but related note, the trial judge questioned the affiant's competence with respect to the overall wiretap application process, three times stating that "[Detective Kyriacou] was either ignorant of, or failed to respect, the ex parte nature of the application and the role of the judge under Part VI of the Code" (at paras. 236, 262, 286). In addition, the trial judge asserted four times that the affiant's "preparation of the affidavit amounted to reckless disregard for the truth and for the role of the [issuing judge]" (at paras. 237, 262, 287, 298).

[37] In none of these instances did the trial judge support these findings directly with evidence of the affiant's conduct, competence or professionalism. Some comments were made with [page730] simple reference to the trial judge's several findings that the affiant omitted or misstated material information, while the trial judge provided no support in the evidence for other comments.

[38] For example, when the trial judge asserted that the affiant's approach was to disclose information that supported the application and to omit information that detracted from it, he pointed merely to the affiant's "several . . . omissions on material issues" (at paras. 210, 280). Also, for his assertions that the affiant intentionally omitted material facts, the trial judge noted only, and without explaining, that the affiant "knew of the materiality of the omitted information" (at paras. 235, 262, 285). The trial judge offered no explicit basis in the evidence for asserting that the affiant was "ignorant of, or failed to respect, the ex parte nature of the application and the role of the issuing [judge]" or that the affiant's "preparation of the affidavit amounted to reckless disregard for the truth and for the role of the judge" (at paras. 236, 237, 262, 286, 287, 298).

[39] Therefore, we are left to infer that the trial judge based his comments on the omissions and misstatements that he found through his analysis of the affidavit in Parts E.3-E.4 of his judgment. For two reasons, however, his findings of omissions and misstatements are insufficient bases for his critical comments.

[40] First, some of the trial judge's findings on omissions were either incorrect themselves or overstated the materiality of the affiant's omission. For example: -- The trial judge determined that the affiant failed to disclose that Matthew Osborne's sister, Angela Osborne, said that Osborne was "very close" to Nicholas Ebanks. Instead, the affidavit disclosed that Ms. Osborne said that her brother and Ebanks were "friends". In fact, Ms. Osborne did not say that they were "very close", but rather that they were "like brethren--like, friends". Perhaps for the trial judge "very close" is a better interpretation of what Ms. Osborne said than "friends". Still, it goes too far to decide that a different interpretation "was to mislead" the issuing judge (at para. 141). -- Part of the reason that the trial judge determined that Ms. Osborne's comments regarding the relationship between Osborne and Ebanks were important was because "Ms. Osborne was the person closest to her brother" (at para. 141). However, the evidence is not at all clear that Ms. Osborne was so close to her brother and in fact gives reason to believe otherwise. In [page731] particular, Ms. Osborne did not know that her brother was dating Nicketa Simmonds for the seven months prior to his murder. Indeed, she had not even seen her brother in the previous four months. -- The trial judge asserted that the affiant failed to disclose Ms. Osborne's information that Osborne had a reason for not attending Ebanks' brothers' funeral (at para. 141). On this account, the trial judge misunderstood either the evidence or its materiality. The affidavit mentions nothing about Osborne's absence at the Ebanks funeral, so his excuse could not be relevant to the motive that the affidavit attempts to construct. -- The trial judge found that the affidavit did not disclose that the three women who were in the car with Osborne when he was shot all told the police that Osborne made no remarks to the effect that he knew who the shooter was (at para. 150). In fact, upon examination of the police interviews themselves, it is clear that the women would not have heard any such remarks because they were not near Mr. Osborne after the shooting. This was clear in the affidavit, so it was open to the issuing judge to see that the women's silence on Mr. Osborne's remarks was immaterial.

[41] With each of these examples, the trial judge found that the omission "was to mislead the issuing judge" (at paras. 141, 150-51). This is not a comprehensive list of where the trial judge erred in finding that the affiant made omissions or misstatements in preparing the affidavit.

[42] Second, the trial judge's critical comments imported elements of intent or purposefulness or elements of incompetence or disrespect for the court to the affiant's conduct. However, the trial judge failed to point to any evidence for his contentions regarding the affiant's state of mind in making certain errors. I accept that a gross pattern of omissions, mischaracterizations or other errors in an affidavit could be so egregious as to bolster a finding of intentionality or incompetence on the part of the affiant. But the affidavit's errors simply do not rise to that level.

[43] In preparing an affidavit, an affiant should be not only full and frank but also "clear and concise": see Araujo, at para. 46. While the trial judge acknowledged this requirement, he ignored its effect when inferring from the omissions that they were committed intentionally. The affiant must exercise some judgment in deciding what should and should not be included in a good and effective affidavit. This must admit of some discretion on the affiant's part. The affiant's testimony at the preliminary [page732] inquiry actually revealed a proper understanding of the expectations, not wrongful intent or incompetence. He noted that the only way to capture an entire interview is to "include the entire interview" and "I don't think the courts, that's what they're looking for, they don't want to see the entire case . . . , otherwise, I would have 20 banker boxes full of information in front of the Justice."

[44] Considering the complexity of this investigation, the alleged material errors in the affidavit are not indicative of malfeasance or incompetence. Nor was the trial judge correct to find all of the material errors that he did. In my view, the findings that commented critically on the affiant's conduct were palpable and overriding errors that directly affected the trial judge's Charter analysis. (b) The Crown agent

[45] The trial judge also made serious critical findings with respect to the Crown agent's role in this case and the general role of the Crown agent in the justice system. In particular, the trial judge concluded that "[t]he failure of the special agent to independently review the investigation is indicative of systemic breakdown of the system in this case" (at paras. 263, 288). In support of this assertion, the trial judge pointed only to a lack of evidence that the Crown agent did anything more than read the affiant's draft affidavit and discuss it with the affiant five days after receiving it (at para. 288). The trial judge thereby concluded that it was "unlikely that the [Crown agent] carefully and independently reviewed the material aspects of the investigation before determining that the affidavit . . . met the standard of full, fair and frank disclosure" (at paras. 263, 298).

[46] In my view, the trial judge's finding of "systemic breakdown" was based on a misunderstanding of the Crown agent's role in law. The trial judge stated that Crown agents have a duty to "carefully and independently review the material aspects of the investigation during, or in preparation for, the consultations with the affiant" (at paras. 238, 288). He then determined that "it was not feasible for the [Crown agent] to carefully and independently review the material parts of the investigation in the timeframe of about one week allotted to this case" (at para. 288).

[47] The Crown agent does not, however, have a duty to undertake a thorough investigation into the investigative file. Section 185(1) of the Criminal Code requires an affidavit from the "peace officer or public officer" and not from any other person. Indeed, peace officers are accustomed to making full and complete disclosure in affidavits for a variety of ex parte [page733] applications under the Criminal Code and are trained for this purpose. Parliament has thereby indicated its confidence in peace officers for such affidavits.

[48] In the context of wiretap applications, Parliament added a Crown agent to undertake certain responsibilities, such as ensuring that the application makes out the reasonable grounds and investigative necessity requirements, ensuring that the application otherwise follows the limitations set out in s. 186 of the Code, and attending chambers to answer questions that the application judge may have. However, none of these responsibilities indicates that Parliament requires an independent investigation of the investigative file or meticulous oversight to ensure that no material facts are omitted. They indicate, instead, a gate-keeping function to ensure the procedural and legal compliance of the affidavit.

[49] While the Crown agent should help the affiant present the evidence in a clear and concise manner and point out any flaws, inconsistencies or ambiguities in the affidavit, he or she should not become an investigator and engage in a wholesale review of the file. This would blur the line between the mutually independent functions of the police and the Crown, each of whom properly maintains a distinct role in the criminal justice system.

[50] Finally, the evidence that there were five days during which the Crown agent had the affidavit before discussing the application with the affiant is insufficient for the trial judge to have found that the Crown agent failed to fulfill his duties. This is particularly true given the actual responsibilities of the Crown agent, which do not involve a thorough review of the investigative file as the trial judge suggested.

[51] In summary, the trial judge's comments relating to the failure of the Crown agent to fulfill his role were palpable and overriding errors of fact based on a misconception of the legal duties of the Crown agent. Unfortunately, these findings were central to the trial judge's Charter analysis and led directly to his decision to exclude the wiretap evidence.

[52] I make a final comment on this aspect of the appeal. Near the end of his reasons, the trial judge made several suggestions, bordering on requirements, about the materials prepared for the wiretap authorization. He clearly did this with a view to providing practical assistance to police affiants and Crown agents. Among his suggestions were a table of contents (at para. 308), cross-referencing of evidence (at para. 309) and sworn appendices (at para. 312) with respect to the affidavit in support of the [page734] wiretap authorization, and, in complex cases, a factum prepared by the Crown agent (at para. 303).

[53] These suggestions go well beyond the practical advice provided by the Supreme Court of Canada in Araujo, where, in discussing "what kind of affidavit should the police submit in order to seek permission to use wiretapping" (at para. 46), LeBel J. spoke in terms of full and frank disclosure, avoiding extra verbiage and tricking the reader and providing affidavits from those with the best first-hand knowledge of the facts (at paras. 46-48).

[54] In my view, the courts should be wary about imposing detailed requirements on the form or content of the materials prepared for wiretap authorization applications. It is best to leave these matters to the experience and discretion of the police officers, Crown agents and issuing judges involved in a particular application. Sometimes the materials (sworn appendices, facta) and organizing aids (tables of contents, cross-referencing of evidence) suggested by the trial judge will be useful; other times the material will not be required or helpful. E. Disposition

[55] I would allow the appeal, set aside the acquittal of the respondent and order a new trial.

Appeal allowed.

Notes

Note 1: Shortly after the joint trial of the respondent and Campbell began, Campbell pled guilty before a different judge to attempt murder, conspiracy to commit murder and possession of a loaded prohibited weapon. He received a sentence of three years concurrent on each charge in addition to pre-trial credit of seven and a half years.