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

113 O.R. (3d) 209

2012 ONCA 673

Court of Appeal for Ontario,

R.P. Armstrong, Watt JJ.A., Then R.S.J. (ad hoc)

October 5, 2012

Charter of Rights and Freedoms -- Search and seizure -- Interception of private communications -- Accused conceding that sufficient evidence to name him as "known" person in affidavit in support of information to obtain authorization but arguing issuing justice erred in naming him in authorization as "known" target because police requiring reasonable grounds to believe that intercepting his communications would afford evidence of listed offences -- No difference existing between being "known" person for purpose of affidavit requirement of Code and "known" person for purpose of inclusion in authorization -- Code not requiring police to set out reasonable grounds for belief that interception of each target's private communications would afford evidence of commission of listed offence -- Authorization providing that communications could be intercepted at residences, business locations, vehicles, public telephones, anticipated locations for interceptions after named parties were placed in custody and other places -- Authorization stating that interception at business places and other places was to be accompanied by live monitoring -- Live monitoring requirement not extending to named places other than "business locations" and "other places" -- Criminal Code, R.S.C. 1985, c. C-46, ss. 185, 186. [page210]

Criminal law -- Interception of private communications -- Cross-examination of deponent -- Accused not seeking to cross- examine deponent of affidavits filed in support of applications for wiretap authorization -- Counsel for co- accused pursuing application for leave to cross-examine deponent -- Trial judge dismissing application -- Accused arguing on appeal that trial judge erred in doing so -- Appeal dismissed -- Decision not to pursue application at trial made by experienced counsel -- Basis for application by co-accused being unique to that co-accused and having nothing to do with accused and application by co-accused having no merit.

The accused was arrested after undercover officers, alerted by intercepted communications, observed a drug transaction. At trial, the accused did not apply for leave to cross-examine the deponent of affidavits filed in support of the application for wiretap authorizations. A co-accused did seek to cross-examine the deponent, and was not permitted to do so. The accused challenged the admissibility of the wiretap evidence. The trial judge found that the authorizations were properly granted, that the accused's rights under s. 8 of the Canadian Charter of Rights and Freedoms were not infringed and that the wiretap evidence was admissible. The accused was convicted. He appealed.

Held, the appeal should be dismissed.

The accused's argument that the trial judge erred in refusing leave to cross-examine the deponent of the affidavits could not succeed in light of the decision, made by senior and experienced defence counsel, not to seek leave to cross-examine at trial, the discretionary nature of the decision, and the fact that the basis for the application by the co-accused was unique to that co-accused and had nothing to do with the accused. The requirements of s. 186(1) of the Criminal Code do not have to be met in respect of each person named in the authorization.

The accused's argument that he was improperly included as a "known" person in the authorizations also failed. Contrary to the accused's argument, the affidavit does not have to provide reasonable grounds for belief that the interception of a person's private communications would afford evidence of the commission of a listed offence in order for a person to be named as a "target" in the authorization. Section 185(1)(e) of the Code enacts the standard to be applied to determine whether a person is "known" for the purposes of the supportive affidavit. That standard is met when investigators know of the existence of the person and have reasonable and probable grounds to believe that intercepting that person's private communications may assist the investigation for which authorized electronic surveillance is sought. There is no difference between being a "known" for the purposes of the affidavit requirement in s. 185(1)(e) and a "known" for the purpose of inclusion in the authorization under s. 186(4)(c).

Paragraph 4 of the authorizations listed the places at which communications could be intercepted as residences, business locations, vehicles, public telephones, anticipated locations for interceptions after named parties are placed in custody, and other places. Paragraph 6 provided that interception at the business places and "other places" was to be accompanied by live monitoring. The live monitoring requirement did not extend to every place listed in para. 4, and was restricted to business places and "other places".

APPEAL by the accused from the conviction entered on January 19, 2010 by Stong J. of the Superior Court of Justice, sitting without a jury.

Cases referred to R. v. Chesson, [1988] 2 S.C.R. 148, [1988] S.C.J. No. 70, 87 N.R. 115, [1988] 6 W.W.R. 193, J.E. 88-1188, 61 Alta. L.R. (2d) 289, 90 A.R. 347, 43 C.C.C. (3d) 353, 65 C.R. (3d) 193, 5 W.C.B. (2d) 147; R. v. Chow, [2005] 1 S.C.R. 384, [2005] S.C.J. No. 22, 2005 SCC 24, 251 D.L.R. (4th) 406, 332 N.R. 275, J.E. 2005-854, 211 B.C.A.C. 31, 195 C.C.C. (3d) 246, 28 C.R. (6th) 21, consd [page211]

Other 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, REJB 2000-21474; R. v. Duarte (1990), 71 O.R. (2d) 575, [1990] 1 S.C.R. 30, [1990] S.C.J. No. 2, 65 D.L.R. (4th) 240, 103 N.R. 86, J.E. 90-263, 37 O.A.C. 322, 53 C.C.C. (3d) 1, 74 C.R. (3d) 281, 45 C.R.R. 278, 9 W.C.B. (2d) 230; R. v. Garofoli, [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. Lachance, [1990] 2 S.C.R. 1490, [1990] S.C.J. No. 116, 116 N.R. 325, 43 O.A.C. 241, 36 Q.A.C. 243, 60 C.C.C. (3d) 449, 80 C.R. (3d) 374, 50 C.R.R. 260, 11 W.C.B. (2d) 359; R. v. Nugent, [2005] O.J. No. 141, 193 C.C.C. (3d) 191, 127 C.R.R. (2d) 120, 63 W.C.B. (2d) 228 (C.A.); R. v. Pham, [2002] B.C.J. No. 770, 2002 BCCA 247, 167 B.C.A.C. 66, 165 C.C.C. (3d) 97, 53 W.C.B. (2d) 439; R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343, [2005] S.C.J. No. 67, 2005 SCC 66, 259 D.L.R. (4th) 441, 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] O.J. No. 2015, 159 O.A.C. 174, 165 C.C.C. (3d) 295, 54 W.C.B. (2d) 202 (C.A.); R. v. Tahirkheli, [1998] O.J. No. 4054, 113 O.A.C. 322, 130 C.C.C. (3d) 19, 40 W.C.B. (2d) 63 (C.A.); R. v. Thompson, [1990] 2 S.C.R. 1111, [1990] S.C.J. No. 104, 73 D.L.R. (4th) 596, 114 N.R. 1, [1990] 6 W.W.R. 481, J.E. 90-1516, 49 B.C.L.R. (2d) 321, 59 C.C.C. (3d) 225, 80 C.R. (3d) 129, 50 C.R.R. 1, 11 W.C.B. (2d) 219; R. v. Williams, [2003] O.J. No. 5122, 180 O.A.C. 171, 181 C.C.C. (3d) 414, 59 W.C.B. (2d) 392 (C.A.)

Statutes referred to Canadian Charter of Rights and Freedoms, ss. 8, 24(2) Criminal Code, R.S.C. 1985, c. C-46, Part VI [as am.], ss. 183 [as am.], 185(1), (c)-(h), (e), 186, (1), (a), (b), (4), (a), (c), (d) Omnibus Crime Control and Safe Streets Act, 18 U.S.C.S. (2006), s. 2518(5)

Edward L. Greenspan, Q.C., and Michael W. Lacy, for appellant. Xenia Proestos, for respondent.

The judgment of the court was delivered by

[1] WATT J.A.: -- It was no coincidence that one July evening about five years ago, two groups of people in separate vehicles arrived at the same place at about the same time. Their meeting place was a service station parking lot in the north end of Toronto. Members of the groups greeted one another after their arrival. [page212]

[2] Karamjit Mahal (the "appellant") was among those who were there. He took a plastic bag out of one vehicle and put it inside the passenger compartment of the other. Both groups returned to their respective vehicles and began to drive away.

[3] The groups encountered an obstacle as they were leaving the service station lot: several undercover police officers stopped their vehicles and arrested the occupants. One of the group dropped a plastic bag on the ground. Inside the bag police found about 250 grams of heroin.

[4] At their joint trial about three and one-half years later, several of the persons charged challenged the admissibility of evidence investigators had obtained by judicially authorized electronic surveillance. They said that the authorizations that permitted interception of their private communications should not have been granted, and any evidence obtained as a result should not be admitted at their trial.

[5] In the case of the appellant, the trial judge thought otherwise. He decided that the authorizations had been properly granted and the evidence obtained by their execution, not the product of any constitutional infringement, should be admitted at trial.

[6] After the trial judge's rulings on the pre-trial motions, the appellant admitted a summary of the Crown's case and offered no opposition to entry of a conviction. The trial judge entered the conviction accordingly.

[7] The appellant says that the trial judge was wrong in his conclusions about the validity of the enabling authorizations and the admissibility of evidence obtained by their execution. I disagree, and will explain in these reasons why I think the trial judge was right.

The Background Facts

[8] Proceedings began with several pre-trial motions, the ultimate object of which was the exclusion of several intercepted private communications the Crown proposed to elicit as evidence.

[9] The challenge to admissibility proceeded through several steps. It began with an application by one of the several co- accused for leave to cross-examine the deponent of the affidavits submitted to the authorizing judge in support of the application for conventional authorizations under s. 186 of the Criminal Code, R.S.C. 1985, c. C-46. The challenge continued with submissions that the affidavits could not satisfy the statutory conditions precedent in s. 186(1) of the Criminal Code, thus could not constitute lawful authority for the interceptions made and tendered for admission. It followed that the evidence of intercepted [page213] private communications should be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms as a result of the infringement of s. 8.

[10] A brief reference to the procedural history will help to locate the various claims of error in their proper setting.

The investigation

[11] In June 2006, various police forces began a joint investigation into the activities of several people alleged to be associated in the ongoing import, export and traffic in various controlled substances. The investigative methods used included physical surveillance, undercover police officers, receipt of information from confidential informants, analyses of business and telephone records and other types of forensic examinations.

[12] The joint-forces investigation was not confined to illicit commercial activity in controlled substances. Investigators also probed related crimes against the persons of others, some inchoate, others substantive.

The applications for authorization

[13] Applications for authorization to intercept private communications and several related assistance orders were made jointly by federal and provincial designated agents. The related assistance orders included number recorder and tracking warrants, as well as orders requiring production of telephone records. The supportive affidavit/information to obtain was completed by the same police officer and the consolidated order signed by the same authorizing judge of the Superior Court of Justice.

The supportive affidavit

[14] The supportive affidavit/information of D/C Ryan Hogan of the York Regional Police comprises 459 paragraphs, exclusive of several appendices relating to the reliability of various confidential informants who supplied information contained in the affidavit/information.

[15] In general terms, the supportive affidavit describes the offences in respect of which interceptional authority is sought. The offences include not only those related to illicit commerce in controlled substances, but also several offences against the person of others arising out of the supply of controlled substances.

[16] The affidavit includes reference to two groups of "known" persons, which the deponent describes as follows: (i) Principal Known Persons; and (ii) Other Known Persons. [page214] The appellant is listed among the category "Principal Known Persons". The affidavit includes a reference to "Unknown Persons", and describes the locations at which it is proposed to make interceptions. These include residences, business locations, vehicles, public telephones, transporting vehicles and other places.

[17] In nearly three dozen paragraphs, the affiant describes other investigative procedures that have been considered or tried and points out the extent to which they have achieved or fallen short of the investigative objective.

The authorizations [See Note 1 below]

[18] Authorizations were granted on May 16 and July 12, 2007 by the same judge of the Superior Court of Justice. In each case, the judge issued an endorsement explaining his findings.

[19] Each authorization listed several offences in respect of which private communications could be intercepted. Those listed included both preliminary and completed offences involving the collection and distribution of controlled substances and offences against the person of others.

[20] The orders listed the names and other details of two categories of "Knowns": "Principal Known Persons" and "Other Known Persons", followed by a clause describing the circumstances in which the communications of persons whose identities were not known at the time the order was granted could also be intercepted.

[21] Each authorization listed or described generally the places at which the interceptions could be made, again by category, including residences, business locations, vehicles and public telephones. The orders permitted interceptions in vehicles used to transport arrested or detained persons. Another clause authorized the interception of the communications of "Principal Known Persons" at other places to which they may resort. In some instances, restrictions were imposed to ensure that the interceptions were confined to those authorized.

The Grounds of Appeal

[22] The appellant advances three grounds of appeal. He says that the trial judge erred in the following ways: [page215] (i) in refusing leave to cross-examine the deponent of the affidavits filed in support of the applications for authorization; (ii) in finding that the affidavit disclosed a sufficient basis to target the interception of the appellant's private communications; and (iii) in finding that the authorization did not require "live monitoring".

Ground #1: Cross-examination of the affiant

[23] This ground, advanced in the appellant's factum but not in oral argument, requires brief reference to the manner in which the issue is raised at trial and the ruling of the trial judge before any canvass of the arguments advanced here and the principles that inform our decision.

The motion at trial

[24] Trial counsel for the appellant filed an application for leave to cross-examine the affiant, but abandoned his application at trial.

[25] Counsel for a co-accused pursued his application for leave to cross-examine the affiant. He argued that leave should be granted because the affiant (i) failed to establish investigative necessity; (ii) relied on conclusory and boilerplate statements that did not establish probable cause; and (iii) relied on untested, uncorroborated and incredulous information from informants in relation to the co-accused.

The ruling of the trial judge

[26] The trial judge recognized that the co-accused had no absolute right to cross-examine the affiant, rather required leave to do so. The purpose of the leave requirement, which the trial judge described as not onerous, was to screen out frivolous applications, yet permit those that met the standard required to proceed.

[27] The trial judge considered that he should grant leave to cross-examine the affiant if the co-accused could show that the cross-examination was reasonably likely to assist the co- accused in making full answer and defence by eliciting evidence that tended to discredit the existence of either condition precedent to the granting of the authorization. [page216]

[28] The trial judge reviewed the specific complaints advanced by the co-accused, including the failure of investigators to apply for search warrants, the limited utility of undercover officers and the alleged unreliability of the confidential informants. The trial judge dismissed the application because he was not satisfied that the proposed cross-examination would negate the demonstration of investigative necessity because the nature of the investigation rendered other methods ineffectual to establish a case against the principals.

The arguments on appeal

[29] The appellant acknowledges that a person who seeks to cross-examine an affiant, as a preliminary step to a challenge to the admissibility of intercepted private communications as evidence, must obtain leave to do so. Leave should be granted when the applicant shows that the cross-examination will elicit testimony relevant to one of the conditions precedent to the grant of an authorization. The standard, the appellant says, is not an onerous one.

[30] In this case, the appellant continues, the trial judge made two errors. First, he misapprehended the legal test for granting leave to cross-examine by conflating the ultimate test on an application to exclude evidence for an infringement of s. 8 with the standard for granting leave to cross-examine. The issue was not whether, on the face of the affidavit, the impugned paragraphs supported the issuance of the authorization. The issue on the leave application was whether there was a basis to believe that cross-examination would assist the appellant in advancing an argument that the requirement of investigative necessity had not been met.

[31] Second, the appellant adds, the trial judge misapplied the test for leave to cross-examine. The applicant demonstrated a case for cross-examination by pointing out the conclusory statements in the affidavit about the utility of other investigative techniques and this, as it has in other cases, should have been enough to warrant leave being granted.

[32] The respondent begins with the submission that the appellant should not be entitled to raise this issue on appeal. At trial, the appellant expressly abandoned his application for leave to cross-examine the affiant. He ought not to be permitted to contend now that he was improperly prevented from cross-examining the affiant when he never advanced an application to do so at trial.

[33] Further, the respondent contends this is not a case in which the appellant can shelter under any alleged errors made [page217] in the determination of the co-accused's application. That argument was premised on an assertion that the essential conditions precedent had not been satisfied in relation to the co-accused. Such an assertion has nothing to do with the appellant.

[34] In any event, the respondent says, the co-accused's application had no merit. The complaint about investigative necessity was answered by the affiant's inclusion of several paragraphs about other investigative procedures and detailed explanations of why those procedures had failed or were unlikely to succeed in achieving the goals of the investigation. As for the alleged deficits in probable cause, the co-accused abandoned this basis for cross-examination as soon as the trial judge provided judicial summaries of redacted portions of the affidavit.

The governing principles

[35] The authorities that describe the standard to be applied on applications for leave to cross-examine the deponent of a supportive affidavit and the scope of appellate review of these decisions reveal several guiding principles.

[36] First, the enabling statute, Part VI of the Criminal Code, contains no specific authority that permits cross- examination of an affiant. Nor does any such authority emerge by necessary implication from anything contained in or omitted from Part VI.

[37] Second, despite the absence of statutory authority, the jurisprudence has recognized a discretion to permit cross- examination of an affiant within defined limits. A trial judge may grant an accused leave to cross-examine an affiant provided the judge is satisfied that the cross-examination is necessary to enable the accused to make full answer and defence: R. v. Garofoli, [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, at p. 1465 S.C.R.; R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343, [2005] S.C.J. No. 67, 2005 SCC 66, at para. 3.

[38] Third, despite the fundamental significance of the right of cross-examination to the criminal trial process, that right is neither absolute nor unbounded. The extent to which the right of cross-examination becomes an essential adjunct to the right to make full answer and defence depends on the context. The threshold applicable here requires that an accused show a reasonable likelihood that the proposed cross-examination will elicit testimony that tends to discredit the existence of a condition precedent to the grant of an authorization: Garofoli, at p. 1465 S.C.R.; Pires; Lising, at paras. 3 and 40.

[39] Fourth, the conditions precedent that must be satisfied before a judge of a superior court of criminal jurisdiction may grant a conventional authorization are contained in s. 186(1) of [page218] the Criminal Code. For discussion purposes, serviceable short-form descriptions are as follows: (i) probable cause; and (ii) investigative necessity.

[40] The probable cause condition precedent in s. 186(1)(a) requires that the affidavit satisfy the authorizing judge that there are reasonable and probable grounds to believe two things: (i) a specified crime has been or is being committed; and (ii) the interception of private communications sought will afford evidence of the specified crime. See Garofoli, at pp. 1443-45 S.C.R.

[41] The investigative necessity condition precedent of s. 186(1)(b) requires that the affidavit satisfy the authorizing judge that, practically speaking, there is no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry: R. v. Araujo, [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65, 2000 SCC 65, at para. 29. This requirement is to be interpreted in a practical, common sense way with due regard for the nature and purpose of the particular investigation that police propose to undertake: Araujo, at para. 29.

[42] The investigative necessity requirement in s. 186(1)(b) refers to the investigation as a whole, not with respect to each person named in the authorization: R. v. Tahirkheli, [1998] O.J. No. 4054, 130 C.C.C. (3d) 19 (C.A.), at para. 4; R. v. Pham, [2002] B.C.J. No. 770, 2002 BCCA 247, 165 C.C.C. (3d) 97, at paras. 85-86; and Araujo, at para. 29.

[43] Fifth, the purpose of the leave requirement is to separate the grain from its husks, to weed out unnecessary proceedings that are unlikely to assist in the determination of relevant issues: Pires; Lising, at para. 40. The standard for granting leave to cross-examine opens a narrow window for cross-examination, not because the standard is onerous, but because the basis upon which an authorization may be set aside is itself very circumscribed: Pires; Lising, at para. 40. To determine whether cross-examination should be permitted, the parties and reviewing judge must keep a weather eye on the issue to be determined on a Garofoli review -- whether there is a basis upon which the authorizing judge could grant the order: Pires; Lising, at para. 40.

[44] The circumstances in which leave to cross-examine may be granted are varied. The proposed cross-examination may be [page219] directed at the credibility or reliability of an informant who has provided information included in the affidavit, but must show more than that some of this information is false: Pires; Lising, at paras. 41-42. Cross- examination may be permitted where the affiant's own credibility is material to establish the statutory pre- conditions: Pires; Lising, at para. 43; R. v. Lachance, [1990] 2 S.C.R. 1490, [1990] S.C.J. No. 116, at pp. 1501-1502 S.C.R. The facial insufficiency of the affidavit may also provide a basis upon which to grant leave to cross-examine the affiant: Pires; Lising, at para. 44; R. v. Williams, [2003] O.J. No. 5122, 181 C.C.C. (3d) 414 (C.A.), at paras. 13-14.

[45] Finally, on review of the trial judge's decision to grant or refuse leave to cross-examine, we are disentitled to simply substitute our view for the conclusion of the trial judge. The leave decision involves an exercise of judicial discretion. Appellate interference is limited to cases in which the trial judge has not exercised his or her discretion judicially: Pires; Lising, at paras. 46-47; Garofoli, at p. 1465 S.C.R.

The principles applied

[46] For several reasons, I would not give effect to this ground of appeal.

[47] First, the appellant never sought leave to cross-examine the affiant at trial. He never asked the trial judge to decide whether he should be permitted to cross-examine the affiant on any basis related to either of the conditions precedent in s. 186(1). The decision not to do so was a considered one made by senior and experienced counsel who then represented the appellant. It would be inimical to the interests of justice to permit the appellant to reverse field now and assert error in a ruling he never asked the trial judge to make.

[48] Second, decisions to permit or refuse leave to cross- examine an affiant involve the exercise of judicial discretion. Appellate review accords substantial deference to these decisions and confines interference to those cases in which the discretion has not been exercised judicially. Deference is equally if not more due when an appellant expressly declined to put the discretion in play in the court of first instance.

[49] Third, this is not a case in which the appellant can scrounge for sustenance in the rejection of the application for leave to cross-examine made by the co-accused at trial. The basis for that application was unique to its applicant and had nothing to do with the appellant. Further, both aspects of the co-accused's application appear grounded on a submission that the requirements of s. 186(1) must be met in respect of each [page220] person named in the authorization. The law is otherwise: the conditions precedent must be established based on the investigation as a whole, not "target" by "target": Pham, at para. 86; Araujo, at para. 29.

[50] Finally, both aspects of the co-accused's application lacked merit and were rightly rejected by the trial judge.

Ground #2: The appellant as a "known" person

[51] The second argument the appellant advances is that he was improperly included as a "known" person in both authorizations. He says that the supportive affidavit furnished no evidentiary foundation for these inclusions. The evidentiary consequence of this argument, the appellant says, is that the interception of his private communications was unauthorized, thus offended s. 8 of the Charter, and the intercepted private communications should have been excluded as evidence under s. 24(2) of the Charter.

[52] A helpful point of departure for the discussion of this claim of error is a brief recapture of the position advanced at trial, followed by a snapshot of the trial judge's ruling and a canvass of the arguments raised on appeal.

The positions advanced at trial

[53] Trial counsel for the appellant acknowledged that the requirement of investigative necessity had been met and that the appellant was properly identified as a speaker in some of the recorded conversations. He made no suggestion that any information contained in the affidavit was wrong, misleading or omitted material facts. The position trial counsel pressed was that the information included in the affidavit was simply insufficient to satisfy the statutory threshold for including the appellant as a "known" person.

[54] The argument advanced here by the appellant was suggested by trial counsel but was not put forward as a discrete ground. Trial counsel conflated the argument now being advanced with a submission that the affidavit contained no evidence to permit the inclusion of the appellant as a "known" person.

The ruling of the trial judge

[55] The trial judge referred to the decision of this court in R. v. Schreinert, [2002] O.J. No. 2015, 165 C.C.C. (3d) 295 (C.A.) as authority for the principle that the threshold for naming someone as a "known person" is a low one. What is required is that investigators know the identity of the person and have [page221] reasonable and probable grounds to believe that the interception of the person's private communications may assist in their investigation of the offence.

[56] The trial judge based his conclusion on the redacted affidavit, rather than on the unredacted record that was before the authorizing judge. He pointed out that the Criminal Code did not distinguish between "primary targets" and "second [sic] targets", which he appears to link with the nature of the offence in which a target is said to be a participant. He then reviewed the evidence connecting the appellant to the "peripheral crime" of shooting Raj Gupta, including information received from confidential informants and other confirmatory information, and concluded:

Based on that information, it was open to the issuing justice to rely on the information the police found reliable. A combination of all the sources of information, including Gupta's statement that "Lovely" was responsible for shooting him, notwithstanding that he later withdrew that allegation, along with the information from confidential informant No. 6 or No. 9 that Makkar was going to get one of his "group" to shoot Gupta, along with the information of confidential informant No. 4 that Mahal was a known associate of Makkar rendered it open to the issuing justice to name Mahal in a warrant authorizing the interception of telecommunications. @7 . . . . .

Based on the totality of the circumstances, including the fact that the informers' reliability had been demonstrated in the past, the issuing justice was justified in authorizing the warrant naming Mr. Mahal as a target for the interception of his telecommunications.

The arguments on appeal

[57] The appellant says that a distinction exists between the obligation to name a person in the supportive affidavit and the basis upon which a person may be named in an authorization.

[58] The appellant acknowledges that s. 185(1)(e) of the Criminal Code enacts the standard for including persons as "knowns" in the supportive affidavit. That standard, the appellant admits, was met in this case because interception of the appellant's private communications "may assist" in the investigation of named offences.

[59] For a person to be named as a "target" in the authorization, however, the appellant says that the affidavit had to provide reasonable grounds for the belief that the interception of his private communications would afford evidence of the commission of a listed offence. And the affidavit never attained this standard because the information on which it was based, the unconfirmed speculation of confidential informants, was neither more nor less than rumour and innuendo. Further, the appellant [page222] urges, the contents of the affidavit could not sustain a reasonably grounded belief that the parties would discuss the commission of historical, peripheral offences during the currency of the authorization.

[60] In the result, the appellant says, the interception of his private communications under the authorization constituted a serious violation of his s. 8 Charter rights that warranted exclusion of the evidence under s. 24(2).

[61] The respondent points out that the argument advanced by the appellant in support of this ground of appeal was not raised at trial and rests on an erroneous legal foundation.

[62] The respondent says that the standard to be applied to determine whether a person is "known" for the purposes of the supportive affidavit is the benchmark set by s. 185(1)(e) of the Criminal Code. This standard requires the inclusion of "the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence". To be included as a "known" does not require reasonable grounds to believe that the person is implicated in a listed offence, or that the interception of the person's private communications will afford evidence of a listed crime.

[63] The respondent submits that the appellant was properly included as a "known" person in the affidavit because investigators knew his identity and there was a sufficient basis to support a reasonably grounded belief that the interception of his private communications may assist them in their investigation. The requirements for similar inclusion in the authorization are no different than those in s. 185(1)(e). After all, the basis upon which, and the terms in which, an authorization is granted are founded on the contents of the affidavit.

[64] The respondent takes the position that the Criminal Code recognizes two categories of persons for the purposes of the supportive affidavit and consequent authorization: "knowns" and "unknowns". The test for naming any "known" persons, whether principal targets of the investigation or otherwise, is the same. No third category, a subset of "knowns", is recognized by the Code. The requirements for an authorization refer to the investigation as a whole, not individual persons described in the affidavit or order.

The governing principles

[65] The argument advanced by the appellant requires consideration of several basic principles at work in the authorization process, the role of the trial judge on authorization review and [page223] the interplay between the requirements of Part VI of the Criminal Code and the constitutional oversight of ss. 8 and 24(2) of the Charter.

[66] Conventional authorizations to intercept private communications may be granted by a judge of the superior court of criminal jurisdiction on the basis of a written application signed by a specially designated agent of the appropriate federal or provincial minister of the Crown and a supportive affidavit. The affidavit, which must satisfy the requirements of s. 185(1)(c)-(h) of the Criminal Code, constitutes the evidentiary basis upon which the authorization sought will be granted or refused: Garofoli, at pp. 1443-45 S.C.R.; Araujo, at para. 46.

[67] The interception of private communications is an investigative technique or procedure the object of which is to record what various speakers say. The words spoken may constitute evidence that can be proffered for reception in prosecutions that take place later. It will fall to the judge presiding in those proceedings to determine whether the evidence of intercepted private communications is relevant, material and admissible.

[68] The interception of private communications constitutes a search or seizure for the purposes of s. 8 of the Charter, thus any statutory provisions that authorize these interceptions must conform to the minimum constitutional standards that s. 8 demands: R. v. Duarte (1990), 71 O.R. (2d) 575, [1990] 1 S.C.R. 30, [1990] S.C.J. No. 2. Section 186(1)(a) complies with these standards. Before granting a conventional authorization, the authorizing judge must be satisfied by the supportive affidavit that there are reasonable and probable grounds to believe the following: (i) a specified crime has been or is being committed; and (ii) that the interception of the private communications proposed will afford evidence of the crime. Garofoli, at p. 1451 S.C.R. The affidavit must also establish the requirements of s. 186(1)(b).

[69] Electronic surveillance captures and preserves spoken words. People speak words. It should come as no surprise then that both the provisions that mandate the requirements of the supportive affidavit and those that govern the judicial authorization provide for the identification of the persons whose private communications are sought to be and may be intercepted under the order.

[70] Section 185(1)(e) requires the affidavit to include "the names, addresses and occupations, if known, of all persons, the [page224] interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence". The test for naming involves two components. The first has to do with identity and the second with investigative assistance. The requirements are cumulative. If a person meets both of these criteria at the time the authorization is sought, he or she is a "known" person. If it is later proposed to adduce that person's intercepted private communications as evidence, that person must be described as a "known" person in the authorization: R v. Chesson, [1988] 2 S.C.R. 148, [1988] S.C.J. No. 70, at p. 164 S.C.R.

[71] The threshold for describing a person as a "known" in the supportive affidavit is a modest one. Investigators need not have reasonable and probable grounds to believe that the person was involved in the commission of an offence being investigated. Provided investigators know the identity of the person and have reasonable and probable grounds to believe that the interception of that person's private communications may assist the investigation of an offence, that person is a "known" for the purposes of s. 185(1)(e): Chesson, at p. 164 S.C.R.; Schreinert, at para. 43; and R. v. Nugent, [2005] O.J. No. 141, 193 C.C.C. (3d) 191 (C.A.), at paras. 8-9.

[72] The investigative assistance component in s. 185(1)(e) does not require that investigators determine (in advance) precisely how the "known" persons' communications may assist in the investigation. Investigative omniscience or clairvoyance is unnecessary. It is enough that investigators have identified the person, and from the available evidence, have reasonable and probable grounds to believe that interception of his or her private communications may assist in their investigation: Schreinert, at para. 45.

[73] For the purposes of s. 185(1)(e), a person is "unknown" if she or he does not meet the identity and investigative assistance requirements of the paragraph: Chesson, at p. 164 S.C.R. Admission of intercepted private communications of an "unknown" will depend on the inclusion and terms of a basket clause: Chesson, at pp. 164-65 S.C.R.

[74] Section 186(1) describes the conditions precedent of which a judge of the superior court of criminal jurisdiction must be satisfied on the basis of the supportive affidavit, before an authorization "may be given". The conditions precedent, which are cumulative, may be described for discussion purposes as probable cause (s. 186(1)(a)) and investigative necessity (s. 186(1)(b)).

[75] The probable cause condition precedent in s. 186(1)(a) requires that the supportive affidavit satisfy the authorizing [page225] judge that there are reasonable and probable grounds to believe that a specified crime has been or is being committed and that the interception of the private communications sought under the order will afford evidence of a crime: Garofoli, at p. 1451 S.C.R.; Duarte, at p. 45 S.C.R.

[76] The investigative necessity requirement in s. 186(1)(b) relates to the investigation described in the affidavit as a whole, not to each "known" person's involvement in the offence: Tahirkheli, at para. 4; Pham, at paras. 85-86.

[77] Section 186(4) governs authorization content. Compliance with its terms is mandatory. Section 186(4)(c) requires that "known" persons whose communications are to be intercepted be identified in the authorization.

[78] Nothing in s. 186(1) expressly requires that the probable cause or investigative necessity conditions precedent be met with respect to each "known" whose private communications are to be intercepted under the order. Grammatically, the impersonal pronoun, "it", in s. 186(1)(a) refers to "an authorization" or, more fully, to the granting of an authorization under the section.

[79] Section 186(4)(c) does not contain any language that requires or suggests categories of known persons. Its requirement involves identification of any "known" persons whose private communications are to be intercepted under the authorization.

The principles applied

[80] For reasons that I will explain, I would reject this ground of appeal.

[81] First, it is s. 185(1)(e) that enacts the standard to be applied to determine whether a person is "known" for the purposes of the supportive affidavit. That standard is met, and the person should be described as a "known", when investigators know of the existence of the person and have reasonable and probable grounds to believe that intercepting that person's private communications may assist the investigation for which authorized electronic surveillance is sought: Chesson, at p. 164 S.C.R.; Schreinert, at para. 43.

[82] Second, s. 185(1)(e), which provides an integral part of the evidentiary wherewithal for the findings required by s. 186(1) and the content demanded by s. 186(4)(c), does not distinguish, as the appellant seeks to do, between categories of "known" persons. The provision distinguishes between "knowns" and "unknowns" as explained in Chesson, not between "primary" and "secondary" targets or "knowns". The absence of any language that expressly or by necessary implication supports or requires such a distinction tells heavily against such a requirement in [page226] either s. 186(1) or s. 186(4) (c) since it is the supportive affidavit that nourishes both.

[83] Third, s. 185(1)(e) posits a nexus between the communications of "known" persons and the offences under investigation. The section captures the nexus in its terms "may assist in the investigation of the offence". The term "offence" refers to the offences described in the affidavit (s. 185(1) (a)), stated in the authorization (s. 186(4)(a)) and defined in s. 183.

[84] The appellant invokes the decision in R. v. Chow, [2005] 1 S.C.R. 384, [2005] S.C.J. No. 22, 2005 SCC 24 to support his submission that the standard for inclusion as a "known" described in Chesson has been modified to require that the interception of a "known's" private communications "would assist" in the investigation, rather than "may assist": see Chow, at para. 34.

[85] I disagree. Chow did not overrule Chesson or purport to interpret the statutory "may assist" as if it read "would assist". The point in Chow was that Chow was not connected to the investigation of the offences for which the authorization was granted, thus could not have been included in the order as a "known" because of an absence of evidence on the investigative assistance aspect of s. 185(1)(e).

[86] The appellant appears to suggest that there is a difference between being a "known" for the purposes of the affidavit requirement in s. 185(1)(e) and a "known" for the purpose of inclusion in the authorization under s. 186(4)(c). Again, I do not agree.

[87] The affidavit is the evidentiary foundation that must satisfy the requirements of s. 186(1) before an authorization may be granted. To accede to the appellant's position would mean that an affidavit, fully compliant with the requirements of s. 185(1)(e), would not satisfy s. 186(1)(a). The illogic of the argument betrays its legitimacy.

[88] The dual standard proposed by the appellant would also contravene the principle expressed most clearly in connection with the investigative necessity requirement in s. 186(1)(b), that the requirement must be met with respect to the investigation as a whole, not in relation to individuals described as "knowns". To accede to the appellant's argument would be to require such an individualized showing for the probable cause condition in s. 186(1)(a). This makes no sense. The legislation does not warrant one interpretation for one condition precedent and a different interpretation for the other, when the requirements are linked together by the conjunctive "and".

[89] Section 186(4)(c) also fails to provide any support for the distinction created by the appellant. [page227]

[90] I am satisfied that neither the provisions of Part VI nor the controlling jurisprudence support the creation of two classes of "known" persons in authorizations. The test for including any named person in the supportive affidavit and consequent authorization is a threshold described in Chesson. The distinction between "Principal Known Persons" and "Other Known Persons" may serve other useful purposes in an authorization, but neither the statute nor controlling jurisprudence requires or furnishes a legal basis for such a distinction.

Ground #3: The "live monitoring" issue

[91] The final ground of appeal requires an examination of the language used in both authorizations. The argument advanced here was not raised during the pre-trial motions to determine the admissibility of the intercepted private communications as evidence. It only surfaced after the appellant had been found guilty, had discharged his trial counsel and had retained current counsel who sought to have the trial judge re-open the proceedings to permit the argument to be advanced. The trial judge refused to do so.

[92] To appreciate the nature of the argument now developed requires brief reference to the terms of the authorizations and the ruling of the trial judge.

The authorizations

[93] Paragraph 3 of each authorization described the persons whose private communications could be intercepted under the order. The names of these persons, as well as their dates of birth, addresses and occupations, if known, were listed under two headings: A -- Principal Known Persons B -- Other Known Persons

[94] The paragraph also permitted the interception of the private communications of unknown persons, provided those interceptions were made at any place listed in para. 4 or over any device listed in para. 5. The applicant's name appeared under the category "Principal Known Persons".

[95] Paragraph 4 described the places at which the communications of the persons listed in para. 3 could be intercepted. The places were listed under several sub-headings or categories: A -- Residences; B -- Business locations; [page228] C -- Vehicles; D -- Public Telephones; E -- Anticipated locations for interceptions after named parties are placed in custody; and F -- Other places.

[96] Paragraph 6 of each authorization, entitled OTHER TERMS AND CONDITIONS, contains several subparagraphs relating to the execution of the authorization. The following two are of importance here:

c. Interception at the Business Places and Other Places in paragraph 4, shall be accompanied by live visual surveillance, or live audio monitoring. The interception of a communication shall be discontinued once it is determined that none of the persons in paragraph 3A is a party to it. However, interception may be resumed at reasonable intervals to determine whether such a person has become a party to the communication. If so, then the interception may continue.

d. A communication shall not be intercepted at any Public Telephone in paragraph 4(d), or any other public telephone, unless there are reasonable grounds to believe that one of the persons in paragraph 3A is, or is about to be, a party to the communication. The interception of a communication shall be live monitored and where practicable, be accompanied by visual surveillance and be discontinued once it has been determined that none of the persons in paragraph 3A is a party to the communication. However, the interception of a communication may be resumed at reasonable intervals to determine whether any of the persons in paragraph 3A has become a party to the communication. If it is determined that any such person is a party to the communication, then the interception may continue.

The rulings of the trial judge

[97] The trial judge referred to the relevant terms of each authorization in dismissing the application to re-open proceedings. He concluded:

For those charged with the responsibilities of carrying out the provisions of the order of Justice Nordheimer, the use of the phrases "business location" in section 4(b) of the order and "business places" in section 6(a) of the order, are simply and logically interchangeable terms of designation, conveying the same generic meaning namely, that it is the named business entity, positionally pinpointed by the address contained in the order, that is to be the target of the wiretap sought.

To conclude that "other places" in section 6(a) of the order is to be interpreted so as to include all interceptions ordered under section 4, except those on businesses, particularly when those other places are specifically designated in section 4 of the order, is to not only create an unnecessary and redundant reference to the use of the preceding words "business places" in the same sentence, but is to create a drafting anomaly which would lead to ambiguity in the meaning of the order, especially when compared to the [page229] clarity of the language used in section 11 of the order, where reference to "the places referred to in paragraph 4 above", is clearly intended to be all encompassing.

If section 6(c) were to be interpreted to include all items enumerated in section 4, then specific references to "business places" and "other place" would not only not have been necessary, but would not have been made.

The arguments on appeal

[98] The appellant says that para. 6c of the authorization required live monitoring at every place described in para. 4, not just those places listed or described under the headings "Business locations" and "Other places" in sub-paras. 4b and 4f. The terms "Business place" and "Other places" in para. 6c do not correspond to the language used in paras. 4b and 4f, thus should receive their plain and ordinary meaning that encompasses every place in para. 4. Words of limitation appear elsewhere in each authorization where restrictions are imposed. They do not appear here.

[99] The appellant points out that the construction of sub- para. 6c that he proposes is consistent with the fundamental principle that authorized invasions of privacy ought to be scrupulously confined to minimize interceptions of the communications of innocent third parties. At the very least, the language in sub-para. 6c is ambiguous and should be interpreted in a way that minimizes, not expands, unwarranted intrusions.

[100] The respondent submits that the argument advanced here was not raised prior to conviction and should not have been entertained by the trial judge on the application to re-open proceedings after the finding of guilt, at least absent a claim of ineffective assistance of counsel.

[101] The respondent says that, in any event, the trial judge was right to reject the submission. The minimization clause in para. 6c, properly read in the context of the authorization as a whole, required live monitoring only at the business places and other places listed or described under the categories "Business locations" and "Other places" in para. 4. The authorization distinguished among the various places where interceptions could be made. The uppercase lettering "Business Places" and "Other Places" refers to titles, not to adjectives and common nouns.

[102] The respondent contends that the construction she advances is in harmony with the principle of minimizing invasions of privacy of others outside the persons targeted. Business locations and other places have legitimate uses and interceptional activity there should be confined to the communications of those targeted in the authorization. The respondent [page230] also notes that if the appellant's interpretation of sub-para. 6c is correct, para. 6d, which imposes restrictions for public telephones, is redundant.

The governing principles

[103] The determination of this ground of appeal reduces to a consideration of the specific terms contained in the authorizations under which the interceptions were made. Yet we gain some help from a brief reference to the statutory requirements for authorization content and the place that minimization occupies under Part VI.

[104] As we saw earlier, s. 186(4) governs the content of conventional authorizations. The subsection uses mandatory language. Section 186(4)(c) imposes requirements that govern who may be intercepted, where the interceptions may be made and how the interceptions may be carried out. In some instances, the obligations are conditional ("if known . . . if a general description of that place can be given . . . "). Some requirements are more specific than others ("identity . . . generally described . . . general description . . . ").

[105] Section 186(4) permits, but does not require the inclusion of terms and conditions in an authorization. To engage this discretion, the authorizing judge must conclude that the terms and conditions are advisable in the public interest.

[106] Unlike s. 2518(5) of Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C.S. (2006), Part VI of the Criminal Code, in particular s. 186(4), does not require inclusion of a minimization term in an authorization. The language of s. 186(4)(d) is sufficiently expansive, however, to permit inclusion of minimization terms: R. v. Thompson, [1990] 2 S.C.R. 1111, [1990] S.C.J. No. 104, at pp.1130-31 S.C.R.

[107] It is self-evident that interceptions at some places, for example, public telephones or places of business, pose a greater risk than others that invasions of privacy of unrelated third parties will occur. These locations are ripe for minimization clauses and the failure to include them may, in some cases at least, render the authorization unreasonable: Thompson, at p. 1144 S.C.R.

The principles applied

[108] This ground of appeal fails for three reasons.

[109] First, para. 4 of the authorizations generally describes the places of interception as required by s. 186(4) (c) of the Criminal Code. This description includes several categories, or types of places, among them "Business locations" and "Other places". Although the minimization term in para. 6c does not coincide [page231] precisely with the language "Business locations" in para. 4b, a "location" is a "place" and business location is a place where business is done. To hold otherwise is to sacrifice substance for form. Nothing else in para. 4 remotely resembles "Business places". This construction also rests comfortably with the need to restrict the invasion of privacy of third parties to what is necessary to achieve legitimate law enforcement goals.

[110] Second, to adopt the interpretation proposed by the appellant would render para. 6d of each authorization redundant. If para. 6c requires live monitoring at every place described under the heading "PLACES" in para. 4, there would be no need for para. 6d.

[111] Third, to adopt the interpretation proposed by the appellant would be to interpret para. 6c as if it read:

Interception at any place described in paragraph 4 rather than as it is written.

Conclusion

[112] For these reasons, I would dismiss the appeal.

Appeal dismissed.

@7 Notes

Note 1: The first authorization is styled "Section 186 Authorization to Intercept Communications and Related Orders" and, the second, "Section 186 Expansion Authorization to Intercept Communications and Related Orders".