Court of Appeal for Ontario
Date: 2023-12-04 Docket: C69901
Before: Doherty, Trotter and Sossin JJ.A.
Between: His Majesty the King, Respondent And: Daniel Tiessen, Appellant
Counsel: Kate Zadorozhnya, for the appellant Jeremy Streeter, for the respondent
Heard: November 20, 2023
On appeal from the conviction entered by Justice Pamela L. Hebner of the Superior Court of Justice on November 4, 2020, and reported at 2020 ONSC 6708, and on appeal from the sentence imposed on May 25, 2021, and reported at 2021 ONSC 3416.
Reasons for Decision
[1] The appellant was suspected of importing cocaine from Mexico. The police obtained authority to “wiretap” the appellant and the other alleged conspirators. Through intercepted communications, the police learned that the appellant and some of his fellow co-conspirators believed that one of them, Devin Alderson, had stolen some of the group’s cocaine and sold it as his own. According to the conversations, the appellant and others had decided to arrange for the abduction and torture of Mr. Alderson to force him to return the profits from the sale of the stolen cocaine. Their plans were in the final stages when the police moved in, arrested the appellant and others, and charged them with conspiracy to kidnap and other related offences.
[2] The trial judge convicted the appellant on four counts and acquitted him on a charge of counselling arson. The trial judge imposed sentences totalling three years.
[3] The appellant appeals conviction and sentence. At the end of oral argument, the court dismissed the appeal with reasons to follow. These are those reasons.
[4] The police investigation into drug trafficking by the appellant began in the summer of 2014. During the investigation, the police received judicial orders authorizing a variety of investigative measures, including tracking warrants, number reader warrants, data recorder warrants, production orders, and search warrants. In April 2015, the police received a “wiretap” order permitting the interception of the appellant’s communications.
[5] The Crown’s case on the conspiracy to kidnap and related charges depended mainly on the contents of certain intercepted communications. The appellant unsuccessfully challenged the admissibility of those communications on a pretrial motion: R. v. Tiessen, 2019 ONSC 2853. The appeal focuses entirely on that pretrial ruling. The conversations are reviewed in some detail in the trial judge’s reasons.
[6] The appellant’s attack on the constitutionality of the various seizures made by the police under the authority of the orders issued during the investigation focuses primarily on the first three sets of orders made. Those orders were made in September 2014, November 2014, and January 2015. The appellant submits that the affidavits in support of those applications (“ITO”) were inadequate and did not provide a basis upon which an issuing judge could be satisfied that the statutory prerequisites to the making of the order had been met. The appellant further argues that if those orders were improperly made, any evidence gathered via those orders, must be excised from the ITOs made in support of the subsequent applications for judicial orders, including the application for the “wiretap” order: see R. v. Grant, [1993] 3 S.C.R. 223, at para. 251. Finally, the appellant argues that if the information gathered under the first three orders is excised from the ITO relied on to obtain the “wiretap” order, the remaining grounds in the ITO do not provide a basis upon which the order could be granted. Consequently, says the appellant, the interceptions were unlawful, infringed his rights under s. 8 of the Charter, and should have been excluded from evidence.
[7] The first three sets of judicial orders were issued under s. 492.2(1)(2) of the Criminal Code. Under those provisions, the ITO must show “reasonable grounds to suspect” that an offence has been committed and “reasonable grounds to suspect” that information that would assist in the investigation of the offence can be obtained through the order. That standard is obviously lower than the “reasonable grounds to believe” standard required for “wiretap” orders and search warrants: see R. v. Chehil, 2013 SCC 49, at paras. 23-26.
[8] The ITOs relied on to obtain the first three sets of orders contained information sourced to various confidential informants. Some of that information was redacted from the ITOs to protect the identity of the confidential informants. The motion judge (who was not the trial judge) limited his consideration of the adequacy of the ITO to the redacted ITO as amplified by the limited cross-examination of the affiant on the motion. On his assessment, the redacted version provided a basis upon which the orders could have been made: R. v. Garofoli, [1990] 2 S.C.R. 1421.
[9] Bearing in mind the statutory standard, the motion judge carefully reviewed the contents of the ITOs. He focused on the information provided by the various confidential informants and the arguments advanced by the appellant. The motion judge was critical of some aspects of the ITO relating to the information relevant to the credibility of the confidential informants. He was, however, satisfied that there was significant independent confirmation of material portions of the information provided by the confidential informants. Ultimately, the motion judge was satisfied the information provided a basis upon which the issuing judge could reasonably have concluded the statutory prerequisites in s. 492.2(1)(2) were made out.
[10] This court will defer to the motion judge’s assessment of the adequacy of the ITO, absent legal error or a material misapprehension of evidence. The bulk of the appellant’s submissions reargue factual issues arising out of parts of the ITO. Those arguments go no further than to demonstrate that another judge may have taken a somewhat different view of the probative value of parts of the ITO. That is not, however, a basis upon which this court could interfere with the motion judge’s ruling: see R. v. Morelli, 2010 SCC 8, at para. 131; R. v. Pires; R. v. Lising, 2005 SCC 66, at para. 30.
[11] The motion judge did not err in concluding that the orders made in September 2014, November 2014, and January 2015 were properly made under s. 492.2(1)(2). Evidence gathered under the authority of those orders was properly considered in the subsequent applications for “wiretap” orders, production orders, and search warrants.
[12] The appellant’s primary challenge to the “wiretap” order rested on the claim that the earlier orders were invalid and that any information obtained under those orders must be excised from the ITO used to obtain the “wiretap”. We have rejected that argument.
[13] The appellant also submits that even if the evidence gathered pursuant to the earlier investigative orders is not excised from the ITO, the ITO still does not provide the “reasonable grounds” required under s. 186(1) of the Criminal Code as interpreted in R. v. Duarte, [1990] 1 S.C.R. 30. The same argument was made before the motion judge. He acknowledged that some of the information was somewhat dated. He was satisfied, however, that the ITO, considered as a whole, provided a coherent narrative establishing the requisite reasonable grounds. We see no error in his assessment.
[14] Finally, the appellant submits that the ITO relied on to obtain the “wiretap” did not satisfy the “investigative necessity” requirement in s. 186(1) of the Criminal Code. The motion judge considered this argument in great detail, noting not only the many investigative steps taken, but also the references in the ITO to other investigative techniques that were considered and rejected for various reasons. The motion judge concluded:
In a very detailed investigative necessity section, spanning 12 pages, page 86 to page 97, the affiant particularized the investigative techniques used and those not used, and the limitations of each. The police were dealing with a sophisticated international operation characterized by the affiant as ‘a complex drug importation scheme involving a multi-layered hierarchy’. The investigation aimed to dismantle this organization which meant it sought to acquire court evidence of who did what, when and how. Intercept authorizations can assist in such an investigation. The investigative team did not first rush to an intercept order but rather conducted an extensive and thorough probe spanning many months and three separate court orders.
[15] Our review of the record confirms the motion judge’s description of the relevant part of the ITO.
[16] The conviction appeal is dismissed.
The Sentence Appeal
[17] We would not interfere with the sentence. The 3-year penitentiary term imposed by the trial judge reflects the serious nature of these crimes and their origin in ongoing, organized criminal activity. But for the positive features of the appellant’s character and background recognized by the trial judge, the sentence could have been significantly higher.
[18] The appeal from conviction is dismissed. Leave to appeal sentence is granted. The appeal is dismissed.
“Doherty J.A.”
“G.T. Trotter J.A.”