COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hafizi, 2016 ONCA 933

DATE: 20161214

DOCKET: C59173

Gillese, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Temorshah Hafizi

Respondent

Iona Jaffe, for the appellant

Howard Krongold, for the respondent

Heard: September 14, 2016

On appeal from the acquittal entered on July 9, 2014 by Justice Robert N. Beaudoin of the Superior Court of Justice, sitting without a jury, with reasons reported at 2014 ONSC 3547.

Brown J.A.:

I. OVERVIEW

[1] The Crown appeals the acquittal of the respondent, Temorshah Hafizi, on charges of trafficking heroin, possession of heroin for the purposes of trafficking, possession of the proceeds of crime, threatening death or bodily harm, and breach of recognizance.

[2] The respondent was named in a wiretap order granted under s. 186 of the Criminal Code as part of a police investigation into a murder in which his son was the prime suspect. The order authorized the interception of the respondent’s private communications made from his residence, place of business, and over his cell phone. Based on communications intercepted from the respondent’s cell phone, the police stopped a vehicle in which he was a passenger. They found heroin and a significant quantity of cash.

[3] The trial judge held the respondent’s rights under s. 8 of the Canadian Charter of Rights and Freedoms had been violated because there were no reasonable and probable grounds to believe the interception of the respondent’s cell phone communications might assist in the investigation of the murder. The trial judge held the wiretap authorization, as it related to the respondent, was obtained on the basis of insufficient and deliberately misleading information. He excluded the heroin and cash pursuant to s. 24(2) of the Charter.

[4] The main issue on appeal is whether the trial judge erred in finding the respondent’s s. 8 Charter rights were violated. I conclude that he did. In his review, the trial judge failed to conduct a contextual analysis of the evidence in the Information to Obtain (“ITO”) and, instead, took a piecemeal approach to individual items of evidence shorn of their context. As well, the trial judge substituted his view of the evidence for that of the issuing justice.

[5] I would allow the appeal, set aside the acquittals, and order a new trial, without prejudice to the right of the respondent to renew his constitutional challenge to ss. 185 and 186 of the Criminal Code at that time.

II. EVENTS

[6] In the early morning hours of January 22, 2012, Navid Niran was stabbed to death outside a nightclub in Ottawa’s Byward Market district. The respondent’s son, Ahmed Hafizi, became the prime suspect in the ensuing murder investigation. At the time, Ahmed lived with his father and worked at his pizza store, Papa Tony’s Pizza.

[7] On February 6, in the course of the murder investigation, Detective Constable Chris Benson of the Ottawa Police Service swore a lengthy affidavit in support of an application for a wiretap authorization under Part VI of the Criminal Code. The proposed order named four people as “Principal Known Persons”: Ahmed Hafizi, two of his friends – Imran Hakim and Masstfa Jasem – and the respondent.

[8] The affidavit set out grounds to believe Ahmed Hafizi inflicted the fatal wound on the deceased and that his friends, Hakim and Jasem, assisted him during and after the altercation. The affidavit stated the respondent was believed to have knowledge of his son’s involvement in the murder and to have blocked police access to his son during the initial investigation.

[9] On February 7, the issuing judge granted the wiretap authorization.

[10] As a result of a combination of intercepted communications and tracking device data, in late March 2012 the police formed the belief the respondent had travelled to the Toronto area for the purpose of obtaining drugs. Upon his return to Ottawa, police stopped the car in which the respondent was a passenger. The police arrested the driver and the respondent on charges of possession of a controlled substance for the purpose of trafficking.

[11] When the police searched the respondent incident to arrest, they found a significant quantity of cash and located heroin in two plastic baggies in a cardboard cell phone box in the trunk of the car.

[12] The respondent was committed to stand trial following a preliminary hearing.

[13] The respondent applied for an order granting leave to cross-examine the wiretap affiant, a declaration his s. 8 Charter rights had been infringed, and an order excluding the heroin and cash.

[14] At the start of the Garofoli hearing before the trial judge, the respondent abandoned his application to cross-examine the wiretap affiant. As a result, the trial judge did not hear any viva voce evidence on the application.

[15] The record before the trial judge consisted of: DC Benson’s affidavit; the wiretap authorization; transcripts of the evidence given by nine police officers at the preliminary hearing and discovery; the notebook entries of two police officers; four surveillance reports; and the respondent’s criminal record.

[16] Following a four-day hearing, the trial judge granted the application and ordered the exclusion of the seized heroin and cash. The respondent pled guilty to one count of uttering a threat and one count of breaching his recognizance. As a result of the trial judge’s Garofoli ruling, the Crown called no evidence in proof of the drug charges, and the respondent was acquitted.

III. ISSUES

[17] The appellant advances two main grounds of appeal:

(i) In his s. 8 Charter analysis, the trial judge erred by failing to conduct a contextual assessment of the grounds in support of the wiretap authorization against the respondent and by substituting his own view about the sufficiency of the grounds for that of the issuing justice; and

(ii) In his s. 24(2) analysis, the trial judge erred by imputing improper intentions to the affiant of the ITO in the absence of any viva voce evidence from the officer.

[18] The respondent submits the trial judge applied the correct legal principles and his view of the sufficiency of the information in support of the authorization, as corrected on review, is entitled to deference. As well, the trial judge’s findings on his s. 24(2) analysis are entitled to considerable deference.

[19] The respondent raises an additional issue. He seeks to renew his constitutional challenge to Part VI of the Criminal Code, which the trial judge did not address in light of his decision to exclude the evidence against the respondent. The respondent contends Part VI is unconstitutional to the extent it permits communications to be targeted where no reasonable grounds exist to believe the interception will afford evidence of an offence.

IV. FIRST ISSUE: DID THE TRIAL JUDGE ERR IN HIS S. 8 CHARTER ANALYSIS?

A. DC Benson’s Affidavit

[20] In his affidavit, DC Benson listed the two offences in respect of which an authorization to intercept was sought: (i) murder and (ii) any conspiracy to commit or attempt or being an accessory after the fact to the commission of, or any counseling in relation to, murder.

[21] DC Benson relied on police surveillance evidence to form his belief that interception of the respondent’s private communications might afford information and evidence of the offences.

[22] The murder took place early in the morning of January 22, 2012. DC Benson deposed that on the afternoon of January 23, police established surveillance at the respondent’s business, Papa Tony’s Pizza. Police observed a car registered to the respondent in the parking lot, and saw the respondent working in the store. Then, at 9:15 p.m., a car parked in front of the store. The car was registered to Jasem’s sister at the address where Jasem lived. According to DC Benson, the surveillance officers reported that “two males in mid-20’s enter the pizza shop,” and at 9:33 p.m. “both males exit the pizza shop and leave” in the car. The respondent left the store about half an hour later. In the summary section of his affidavit, DC Benson deposed the males were believed to be Hakim and Jasem.

[23] On January 25, police officers observed the respondent leaving Papa Tony’s Pizza at 6:15 p.m. and “driving in a manner in which he is aware of or trying to detect surveillance”. While “driving on Highway 417 westbound, at the last second [he] cut across four (4) lanes to exit at Catherine Street,” at which time the officers terminated the surveillance.

[24] The next day, January 26, police officers saw the respondent drive away from his residence in the morning. He began “to conduct obvious surveillance detection techniques, which include U-turns, and aggressive driving.” The surveillance was terminated.

[25] Later that afternoon, the police again set up surveillance at Papa Tony’s Pizza. At 6:45 p.m., they saw Ahmed Hafizi park in the store’s rear lot. At 7:22 p.m., two officers went into the store to locate Ahmed. According to DC Benson, “Temorshah Hafizi identified himself as Ahmed Hafizi’s father and stated Ahmed Hafizi was at home and provided [a number] as a contact number to speak with Ahmed Hafizi.” The affidavit went on to state that at 7:43 p.m. one of the officers left a voice mail message for Ahmed at that number.

[26] DC Benson deposed that at 9:08 p.m., officers observed Ahmed exit the store, get into a car driven by another, drive a short way up the street, and then return to the pizza shop. Finally, at 9:56 p.m., the officers saw Ahmed leave the pizza store and drive to the residence he shared with his father. In the summary section of his affidavit, DC Benson stated the respondent “was clearly preventing police from speaking to his son.”

[27] Commenting on the surveillance evidence, DC Benson stated the respondent “now has knowledge of the actions of his son Ahmed Hafizi on January 22, 2012.” As evidence of this, he cited “driving behavior and obvious signs of use of surveillance detection techniques.”

[28] DC Benson also included in his affidavit information from informants. One informant provided “third hand” information that the respondent was heard saying it was better the victim was killed rather than his son. DC Benson cautioned the issuing justice “to take a skeptical view of the informant’s information because, to my knowledge, it is second hand information and not direct knowledge.” He deposed the informants’ information did “not advance investigators in this case and can only be treated as intelligence…” The officer did not include the informants’ information in his “summary of grounds for belief” in respect of the respondent.

[29] However, DC Benson did offer the following as corroboration of one informant’s “third hand” information about the respondent:

When police attended Papa Tony’s Pizza to locate Ahmed Hafizi in order to offer him an opportunity to be interviewed, Temorshah Hafizi informed police his son was not at the store. However surveillance confirmed Ahmed Hafizi was at the store at that time. Clearly Temorshah Hafizi has knowledge and is obstructing the police investigation.

B. The trial judge’s ruling

[30] The trial judge acknowledged he was not to substitute his opinion for that of the issuing judge. He agreed that “perhaps” it was open to the issuing judge to draw the inferences the Crown sought. However, he stated “the analysis changes completely when the full record is amplified and corrections are made.” Yet he also concluded that “on its face” the affidavit in support did not set out reasonable and probable grounds to name the respondent as a person whose communications may assist in the investigation of the identified offences. The trial judge stated: “This is not a case of ‘weighing’ the evidence; the issue here is one of sufficiency.”

[31] The trial judge then proceeded to consider the three main events concerning the respondent: (i) the attendance of two males at the pizza store on January 23; (ii) the police attendance at the store on January 26 to interview Ahmed, and their ensuing conversation with the respondent; and (iii) the respondent’s driving.

[32] As for the visit of the two males, the trial judge held that “while it could reasonably be inferred that one of the men was Jasem … there is no basis to conclude that the other was Hakim.” He went on to state that even if one could conclude that Jasem and Hakim entered the shop, “there was no reasonable basis to infer that the [respondent] met with them much less that he was involved in covering up a murder.”

[33] With respect to the officer’s evidence that on January 26 the respondent lied when he told police at the pizza store that his son was at home, the trial judge held such evidence was “greatly undermined when the surveillance evidence reveals that Ahmed had indeed left the pizza shop shortly before the police officers interviewed his father.” As well, the inference that the respondent was preventing the police from speaking to his son was “completely undermined” when another officer’s notes disclosed the son replied later that evening to the voice mail message left by the police. The son ultimately contacted the police and referred them to his lawyer.

[34] As to the driving, the trial judge held that when the affidavit was sworn, the police knew the respondent was out on bail for drug-related offences and his recognizance included a condition that he not possess a cell phone. That information was not included in the affidavit. The trial judge stated: “The disclosure of that information completely negates the inference that the [respondent’s] surveillance awareness was due to his knowledge of his son’s involvement in a murder.”

[35] The trial judge also held the informant’s information was “third hand hearsay and it is neither compelling, credible nor reliable.” The trial judge characterized that evidence as one of the “four critical elements” in DC Benson’s affidavit. It is difficult to understand why the trial judge so characterized the evidence because DC Benson heavily discounted that evidence, cautioned the issuing justice to take a skeptical view of it, and did not include it in his summary of grounds for belief.

[36] The trial judge also commented that DC Benson did not confine himself to a simple recital of the facts, but put glosses on his conclusions.

[37] In the end, the trial judge concluded he was left with the following facts: “the [respondent] is Ahmed Hafizi’s father. They live together and, at the time of the murder of Navid Niran, they worked together in the family pizza business. There is no evidence to link the [respondent] to the murder of Navid Niran…Here, all we have is the simple fact of a father and son relationship and nothing else.” As a result, the trial judge concluded “[t]here were no reasonable and probable grounds to believe that the interception of the [respondent’s] personal cellphone might assist in the investigation of the murder or an ancillary offence.” (Emphasis in original).

C. The arguments on appeal

[38] The appellant submits the trial judge confused the standard for wiretap authorization with the standard for naming an individual as a known person in the authorization. The former requires meeting the twin criteria of the best interests of the administration of justice and investigative necessity. The latter involves a lower threshold – it does not require a demonstration of probable cause in respect of each known person, but the showing of reasonable grounds to believe the interception of a person’s private communications may assist in the investigation of an offence.

[39] The appellant argues the trial judge made two errors in his s. 8 Charter analysis. First, he approached his sufficiency analysis in a piecemeal fashion, assigning value to each event without regard to its context. Instead, the trial judge should have considered each event in light of the other events and determined whether, cumulatively, the grounds provided a basis upon which the issuing justice could grant the authorization in respect of the respondent.

[40] Second, the trial judge substituted his view of the evidence for that of the issuing justice, instead of ascertaining whether sufficient grounds existed upon which the issuing justice could have granted the authorization.

[41] The respondent submits the trial judge applied the correct test to his review of the evidence. As well, the trial judge’s view of the sufficiency of the information, as corrected on review, is entitled to deference.

D. Standard of Review

[42] On an appeal from an order made at a Garofoli hearing, this court owes deference to the findings of fact made by the reviewing judge in his or her assessment of the record, as amplified on review, as well as to his or her disposition of the s. 8 Charter challenge. Absent an error of law, a misapprehension of material evidence or a failure to consider relevant evidence, we should decline to interfere: R. v. Beauchamp, 2015 ONCA 260, 333 O.A.C. 87, at para. 89.

[43] That said, the reviewing judge must also be mindful of his or her narrow role in reviewing an authorization. The reviewing judge plays a constitutionally vital role in guarding against potentially unjustified invasions of privacy authorized in ex parte proceedings. But warrants and authorizations are presumptively valid, and the reviewing judge must not conduct a de novo hearing of the ex parte application: R. v. Sadikov, 2014 ONCA 72, 314 O.A.C. 357, at paras. 83 – 84.

[44] The test a reviewing judge is to apply is whether, in light of the record amplified on review, the ITO “contained sufficient reliable evidence that might reasonably be believed on the basis of which the authorizing justice could have concluded that the conditions precedent required to be established had been met”: R. v. Nero, 2016 ONCA 160, 345 O.A.C. 282, at para. 70. If on the amplified record the reviewing judge “concludes that the authorizing judge could have granted the authorization, then he or she should not interfere”: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452. 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”: Garofoli, at p. 1452; R. v. Hall, 2016 ONCA 13, 128 O.R. (3d) 641, at paras. 47 – 48.

[45] Failure to remain within the bounds of a reviewing judge’s proper role may justify appellate intervention.

E. Analysis

[46] As the starting point for considering the trial judge’s analysis, one must recall that the threshold for naming a person in an affidavit and authorization as a “known person”, within the meaning of s. 185(1)(e) of the Criminal Code, is not onerous. As stated by this court in Beauchamp, at para. 105:

Reasonable grounds to believe that a person is involved in an offence under investigation are not required. Nor is it essential that there are reasonable grounds to believe that the interception of a person’s private communications will afford evidence of a listed offence. Investigators must know a person’s identity and have reasonable grounds to believe that the interception of that person’s private communications may assist in the investigation of an offence to trigger the identification or “known person” requirement.

[47] On the Garofoli application, the respondent did not dispute that reasonable grounds existed to obtain a Part VI authorization in respect of his son, Ahmed Hafizi, and his two friends, Jasem and Hakim: para. 16. As well, the respondent conceded it was reasonable to target his residential and business telephone lines because his son lived and worked with him: para. 64. The respondent confined his challenge to the inclusion of his cell phone communications in the authorization to intercept.

[48] Despite stating the proper standard of review at the outset of his analysis, the trial judge’s reasons disclose he made two closely-connected errors of law in concluding insufficient grounds existed to include the respondent’s cell phone communications in the authorization:

(i) He took a piecemeal approach to individual items of evidence shorn of their context, instead of conducting a contextual analysis of the affidavit material as a whole: Beauchamp, at paras. 85-87; Nero, at para. 68; R. v. Spackman, 2012 ONCA 905, 300 O.A.C. 14, at para. 223; and

(ii) Instead of assessing whether the ITO, as amplified, contained reliable evidence that might reasonably be believed on the basis of which the order could have issued, the reviewing judge substituted his view of some of the evidence for that of the issuing justice: Beauchamp, at paras. 85-87; Nero, at para. 70.

[49] There was a larger context that should have informed the trial judge’s assessment of the evidence. By the time the police sought the s. 186 authorization in early February, 2012, their investigation had led them to believe the respondent’s son, Ahmed, was the prime suspect in the murder of Navid Niran. The police also believed the son’s friends, Hakim and Jasem, had been present at and assisted the respondent’s son during the murder. The police had formed those beliefs based on several sources of information: interviews of those present inside and outside the nightclub at the time of the murder; video surveillance footage from the nightclub and the surrounding neighbourhood; and police surveillance of Ahmed and his two friends. They also learned that Ahmed lived with his father and worked at his father’s pizza shop.

[50] The trial judge’s rejection of three pieces of evidence contained in the ITO resulted from neglecting that larger context.

[51] The pizza store visit by two males: First, the trial judge rejected as supporting evidence the police surveillance observations of the visit by two young males to the respondent’s pizza store the day after the murder. It is very difficult to reconcile that rejection with the trial judge’s earlier acknowledgement that one could infer from the record that Ahmed’s friend, Jasem, was one of the males who visited the pizza store – they had arrived driving a car owned by Jasem’s sister, and Jasem lived at the same address as his sister.

[52] The trial judge went on to conclude there was no reasonable basis to infer the respondent met with the males. However, the surveillance evidence described by DC Benson recorded: the respondent was in the store at the time; his son was not; the males spent over 15 minutes in the store; they left; and shortly thereafter the respondent left.

[53] In his affidavit DC Benson stated “both males appeared to have entered Papa Tony’s Pizza and met with [the respondent] for a brief period of time.” Although the amplified record disclosed the respondent’s brother also was in the pizza store at the time, what remained in the record continued to provide a basis for an inference that the males, one of whom was Ahmed’s friend Jasem, met with the respondent the day after the murder in the absence of Ahmed.

[54] The respondent’s driving: Turning to the evidence of the respondent’s driving, the trial judge noted the amplified record disclosed the respondent was well-known to the police for drug-related matters and, at the time of surveillance, was out on bail for drug-related offences. That information led the trial judge to conclude no inference could be made that the respondent’s evasive driving was due to knowledge of his son’s involvement in a murder.

[55] Yet, the police observed two instances of evasive driving by the respondent – the first during the early evening of January 25, and the second the following morning, on January 26. Both instances had been preceded by the visit of two young males to the pizza store the day after the murder in a car registered to Jasem’s sister.

[56] Placed in that larger context, the evidence of the respondent’s driving, even as amplified by the information that he was out on bail on drug-related charges, was available to support more than one inference, including the inference advanced by DC Benson that the respondent “now has knowledge of the actions of his son…on January 22, 2012.” It is not the reviewing judge’s role to prefer one inference over the other: Sadikov, at para. 88. The task of the reviewing judge is to assess whether the ITO contained reliable evidence that might reasonably be believed on the basis of which the authorization could have issued: Sadikov, at para. 88. Although a potentially innocent explanation cannot be disregarded and may, in a proper case, make an inculpatory inference reasonably unavailable, a reviewing judge should not examine individual items of evidence out of context in a search for alternative exculpatory inferences: R. v. Liew, 2015 ONCA 734, 341 O.A.C. 192, at para. 46; Nero, at paras. 68 and 70.

[57] The police visit to the pizza store: The final piece of evidence the trial judge rejected concerned the police visit to the respondent’s pizza store on the evening of January 26, 2012. As some officers went into the shop, others had the store under surveillance. DC Benson deposed the police talked with the respondent who stated his son was at home and provided the police with a contact telephone number. DC Benson noted: “Surveillance was being conducted prior to police arrival and surveillance report confirms Ahmed Hafizi was inside Papa Tony’s Pizza at the time of [the detective’s] visit.” In the summary portion of the ITO, DC Benson deposed: “[The respondent] responded by indicating Ahmed Hafizi was at home. Temorshah Hafizi was clearly preventing police from speaking to his son.”

[58] The trial judge held the amplified record “greatly undermined” that assertion because Ahmed was not working inside his father’s store at the time the police spoke with the respondent. Although the trial judge recognized the respondent’s “statement that Ahmed was at home is also questionable,” he inferred the son may have returned to the store without his father’s knowledge.

[59] The amplified record before the trial judge disclosed that as the interviewing officers were entering the pizza shop, the surveillance officers saw Ahmed leave the shop, go over to a car, and then re-enter the pizza store, where he remained until after the interviewing officers had left. Immediately upon entering the pizza store, the interviewing officers spoke to the respondent, who told them his son had gone home because it was a school night. The respondent made that statement notwithstanding the surveillance officers had seen Ahmed at the pizza store before the interviewing officers had entered, and watched Ahmed continue to work by making pizza deliveries after the interviewing officers had left.

[60] The amplified record did not, as held by the trial judge, completely undermine DC Benson’s statement in the ITO that Ahmed was inside his father’s store at the time of the interviewing officers’ visit. Nor did it completely undermine his statement that the respondent was “clearly preventing police from speaking to his son.” Those inferences were open on the record, as amplified. The trial judge’s conclusion to the contrary amounted to an impermissible substitution of his view of the evidence for that of the issuing justice.

[61] The trial judge’s ultimate conclusion that “all we have is the simple fact of a father and son relationship and nothing else” resulted from his assessment of the evidence in a piecemeal fashion. When the evidence is assessed cumulatively, taking into account the larger context, it went much further: (i) Ahmed was the prime suspect in the murder of Navid Niran; (ii) Ahmed lived with his father, the respondent; (iii) Ahmed worked at his father’s pizza business and continued to do so after Niran’s murder; (iv) information obtained by the police led them to believe two of Ahmed’s friends, Jasem and Hakim, had been present with Ahmed at the time of the murder; (v) the day after the murder, at least one of those friends visited the pizza shop when Ahmed was not there, but the respondent was, and spent about 15 minutes in the store; (vi) the respondent was less than candid when he told officers who visited his pizza store on January 26 that his son was not there, but at home because it was a school night; and (vii) the respondent’s driving on two occasions strongly suggested he was aware he was under police surveillance.

[62] In Nero, this court stated, at para. 125, that “[i]t is the effect of the evidence taken as a whole that is to be subjected to the standard required, not each individual item. The whole is often greater than the sum of its individual parts.” When approached in that way, and not in a piecemeal fashion, the ITO, as amplified, contained reliable evidence that might reasonably be believed on the basis of which the authorization could have issued. It was open to the issuing justice to conclude investigators had demonstrated reasonable grounds to believe that the interception of the respondent’s private communications might assist in the investigation of a murder in which his son was the prime suspect.

[63] The request for authorization to intercept the respondent’s cell phone communications did not amount to a mere fishing expedition, as the respondent contends. The “may assist” standard to include the respondent as a Principal Known Person was met.

[64] Accordingly, I would conclude the trial judge erred in holding that the respondent’s s. 8 Charter rights were breached because the ITO did not contain sufficient evidence to meet the “may assist” standard in respect of the respondent.

V. SECOND ISSUE: THE RESPONDENT’S CONSTITUTIONAL CHALLENGE

[65] Before the trial judge, the respondent argued that Part VI of the Criminal Code is unconstitutional to the extent it permits communications to be targeted where no reasonable grounds exist to believe the interception will afford evidence of an offence. The trial judge concluded he did not have to deal with that issue. The respondent seeks to renew his constitutional challenge before this court.

[66] Since the trial judge did not deal with this issue, we do not have the benefit of reasons from a lower court. Under those circumstances, I would remit the respondent’s application back to a judge of the Superior Court of Justice for argument and determination of his constitutional challenge.

VI. THIRD ISSUE: THE TRIAL JUDGE’S s. 24(2) ANALYSIS

[67] Given my conclusion that the trial judge erred in finding a violation of s. 8 of the Charter, it is not strictly necessary to consider the trial judge’s s. 24(2) analysis. However, in the present case the trial judge concluded DC Benson “deliberately withheld relevant information that would have completely negated the inferences he sought to be drawn by the issuing justice”: para. 78. He stated: “This is not a case of inadvertence nor can it be characterized as good faith.”

[68] The appellant submits those findings were unsupported by the evidence. The appellant notes DC Benson did not testify on the Garofoli application; the respondent abandoned his application to cross-examine him. The respondent argues those findings were open to the trial judge to make, even in the absence of any cross-examination of DC Benson.

[69] With due respect to the trial judge, I would accept the appellant’s submission that the amplified record does not support the trial judge’s conclusion that DC Benson deliberately withheld relevant information. Instead, as I have explained above, the trial judge erred by failing to assess the evidence as a whole and by substituting his view of the evidence for that of the issuing justice. There was simply no basis for the trial judge’s comments about DC Benson, on the record that was before him, and they should not have been made.

VII. DISPOSITION

[70] For the reasons set out above, I would allow the appeal, set aside the acquittals, and order a new trial, without prejudice to the right of the respondent to renew his constitutional challenge to ss. 185 and 186 of the Criminal Code at that time.

Released: December 14, 2016 (EEG)

“David Brown J.A.”

“I agree E.E. Gillese J.A.”

“I agree Paul Rouleau J.A.”