ONTARIO COURT OF JUSTICE

CITATION: R. v. Wafer, 2021 ONCJ 618

DATE: 2021 12 3

COURT FILE No.: Newmarket 18 08448 Newmarket 18 08449

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SHERRY WAFER & JEAN CHRISTIE

Before Justice David S. Rose

Heard on November 22, 23, 2021

Reasons for Judgment released on December 3, 2021

Mr. B. McCallion................................................................................. counsel for the Crown

Mr. G. Lafontaine.................................................. counsel for the accused Jean Christie

Ms. J. Kushner…………………...………………counsel for the accused Sherry Wafer

Rose J.:

[1] Ms. Wafer and Jean Christie pleaded not guilty before me to all counts on two different Informations:

On Information 18 08449

i) Trafficking in Cannibis Resin on September 6, 2018 Contrary to s. 5(2) of the CDSA;

Ms. Christie is solely charged on that Information with:

ii) Possession of Cannabis for the purpose of trafficking on 10 October 2018;

[2] On Information 18 08448 both are co-accused on:

iii) Conspiracy to traffic cannabis and cannabis resin between 24 August 2018 and 7 October 2018;

iv) Conspiracy to Traffic Cannabis Resin Contrary to s. 5(1) of the CDSA between September 2, 2018 and 24 September 2018.

Ms. Christie is solely charged in Information 18 08448 with:

v) Careless storage of a Smith and Wesson 9 mm handgun on 10 October 2018;

vi) Careless storage of a Beretta 9 mm handgun on 10 October 2018;

vii) Possession of a Beretta 9mm handgun without a licence on 10 October 2018;

viii) Possession of a Smith and Wesson 9mm handgun without a licence on October 10, 2018;

ix) Possession of a Beretta 9mm handgun with readily accessible ammunition without an authorization or licence on October 10, 2018;

x) Possession of a Smith and Wesson 9mm handgun with readily accessible ammunition without an authorization or licence on October 10, 2018.

Overview

[3] Ms. Wafer and Ms. Christie bring an application grounded in s. 8 of the Charter to exclude evidence: wiretaps; and what was seized when the police executed a conventional search warrant on Ms. Christie’s residence on October 10, 2018.

[4] The Charter Application commences with the argument that Ms. Wafer was named in a Part VI Authorization when there was insufficient grounds to do so. She claims that she should not have been a principal named party, and therefore her private communications should never have been intercepted. Her argument goes on to say that without the wiretaps no conventional search warrants should have been granted for execution on October 10, 2018 – not at Ms. Wafer’s house or Ms. Christie’s, although I was told that no evidence was obtained from Ms. Wafer’s house, only from Ms. Christie’s. In argument Mr. Lafontaine candidly admitted that Ms. Wafer properly ought to have been included in the Part VI as an “other” known party. The defence application is that she should not have been a named principal party so as to have all of her private communications intercepted.

[5] All parties agree that this is a facial attack on the Part VI Authorization dated August 23, 2018 and that that Authorization is reviewable on principles set forth in R. v. Garofoli 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 and its progeny. There is no amplification or cross-examination of the affiant. During argument Mr. Lafontaine raised, and then abandoned a motion to file a Facebook page relating to an image included in the impugned Part VI (ITO). That image was given the letter “A” because it is not an exhibit in the proceedings.

The Authorizations

[6] In 2018 York Regional Police (YRP) were investigating the activities of a York Regional Police Constable Richard Senior. YRP were of the view that PC Senior had abused his office qua Police Constable and had engaged in various corrupt activities including unlawful use of computers, use of police databases in ways that amounted to a breach of trust, including fixing traffic tickets. The investigation was given the moniker “Project Tadeau”.

April 20, 2018 Search Warrant and Tracking Warrant

[7] On April 20, 2018 Pirraglia J. of this Court signed an authorization permitting YPR to search their internal email server for Richard Senior’s emails. She also authorized a Transmission Data Warrant for Senior’s cell phone, and a Tracking warrant for his pick up truck and a Production Order for transmission data from his cell phone carrier.

June 14, 2018 Part VI Authorization, Transmission Data Recorder Warrant, General Warrant and Tracking Warrant.

[8] On July 14, 2018 RSJ Fuerst of the Superior Court authorized interception of private communications for three principal known persons: Richard Senior; Michael Vigliotti & Angelo Volpe. There were six other known persons in the July 14, 2018 Part VI – Shirley Wafer among them. The July 14 Authorization did not authorize interception at Ms. Wafer’s residence, or of her telephone.

July 13, 2018 Part VI Authorization, and General Warrant.

[9] This Authorization was a first party consent Part VI to permit interception of communications between Richard Senior and Thayalan Elaguppillai, who is a police officer.

August 23, 2018 Part VI Authorization, Transmission Data Recorder Warrant, General Warrant and Tracking Warrant.

[10] This Authorization expanded the principal known persons to now include Richard Senior and 9 others, including Sherry Wafer. There were 21 other known persons in the Authorization.

[11] The August 23, 2018 Authorization also included two consenting persons, Thayalan Elaguppillai, and Henri Ho. This Part VI Authorization was supported by the ITO of Detective Sergeant Les Titleman, which was filed in this Charter Application.

[12] As regards Ms. Wafer, the August 23 Authorization permitted interception of Ms. Wafers communications at her house, her car, and specifically named her telephone number as a line which could be intercepted.

October 9, 2018 Search Warrant

[13] Justice Pirraglia signed a conventional s. 487 search warrant on October 9, 2018 which permitted search of various locations, including Ms. Christie’s residence. It was executed the next day. A Return to a Justice identified that two firearms were located in a closet during the search of that address. Firearms were not authorized as an item to be seized under the Warrant.

[14] The October 9 Conventional Warrant Application was supported by an ITO from Det. Shawn Sparkes. It was included in the Charter Application. That ITO outlined interceptions between Ms. Wafer and Ms. Christie captured as a result of the August 23, 2018 Part VI Authorization to intercept Ms. Wafer’s private communications. Those intercepts are outlined in paragraphs 110 – 139 in Det. Sparkes ITO.

Discussion

[15] Mr. McCallion concedes that Ms. Christie has standing to challenge the lawfulness of the August 23 Part VI. In argument Mr. Lafontaine submitted that when a person’s private communications are intercepted they have standing to challenge its lawfulness. He relied on R. v. Shayesteh 1996 CarswellOnt 4226 at paragraphs 40 and 41 for that proposition. I agree. As regards, Ms. Wafer, there is no question about her standing to argue the s. 8 Application because she was a named principal party to the August 23 Part VI. Both defendants have standing to argue the lawfulness of the Part VI Authorization. Ms. Christie’s residence was searched pursuant to the October 9, 2018 Conventional Search Warrant, and so has standing to argue the lawfulness of that judicial order.

[16] The defence narrows the argument down to the one of the lawfulness of the August 23, 2018 Part VI. If the defence is successful in quashing that Part VI Mr. McCallion concedes that the October 9, 2018 Conventional Warrant cannot stand because so much of that s. 487 Warrant relies on the interceptions of Ms. Christie and Ms. Wafer. In other words, it all comes back to the August 23, 2018 Part VI.

The August 23 Part VI

[17] The August 23 Part VI was based on the investigation into Richard Senior for the following offences.

a) Unauthorized use of a computer contrary to section 342.1 of the Criminal Code;

b) Breach of Trust by Public Officer contrary to section 122 of the Criminal Code;

c) Obstructing Justice contrary to section 139(2) of the Criminal Code;

d) Conspiracy to commit, attempt to commit, or being an accessory after the fact to the commission of, or any counselling in relation to any of the above offences.

[18] In paragraph 23 of the ITO various goals are outlined. These are:

a. Gather clear and compelling evidence relating to the outlined offences;

b. Identify any co-conspirators involved in the outlined offences;

c. Identify the payment structure for the furnishing of information;

d. Identify, locate and seize those proceeds;

e. Successfully prosecute the responsible co-conspirators.

[19] Det. Titleman’s ITO outlines at length the evidence gathered up to August 23, 2018. I would summarize it this way. Richard Senior, a veteran YRP officer, was for most of his career assigned to the Community Oriented Response Unit. He wasn’t normally investigating crime, but rather he did traffic patrol and engaged in community events. In his 14 years in uniform Senior had all of 6 months working in a Criminal Investigation Bureau, and 9 weeks in a short training session. It is a reasonable inference from the ITO that Senior was a uniformed traffic officer, and that he had no investigative duties as might be part of the role of a detective. YRP believed that Senior was corrupt.

[20] Senior’s emails and phone data had been seized pursuant to judicial authorization and without his knowledge. The Titleman ITO contains substantial material outlining what was found therein. Senior had folders in his phone – hidden secret ones according to Det. Titleman. Three were mentioned in paragraph 58: Green house; Gordon B pics; and Them Boys. Those folders contained images.

[21] The Green house folder contained images of what Det. Titleman suspected was an illegal marijuana grow operation operated by Gordon Broadhead. One of the pictures depicted Gordon Broadhead wearing the vest of the Hiway Riders, which is an outlaw motorcycle gang. Beyond that Mr. Broadhead had a relatively recent conviction for Fraud and Counterfeit Money. When he was arrested in August of 2017, one year previous, the police had seized a gun from him. In one image Richard Senior appears in a photograph alongside Gordon Broadhead and others on a beach.

[22] Other images of a marijuana grow operation where on Senior’s phone, and included Gordon Broadhead in them. Notably there are screen shots on Senior’s phone of CPIC searches of an individual Domenic Iandoli, as well as Danny Iandoli. In other screen shorts Senior recorded YRP database searches for Kevin Lillies. The ITO outlines the reasons why Titleman believes that Danny Iandoli is a member of organized crime and is involved with the illicit marijuana production operation appearing in Richard Senior’s “green house” file folder.

[23] The images of grow operations and CPIC print outs in Senior’s phone led Det. Titleman to say that Senior at a minimum was doing CPIC searches of persons involved in marijuana production because someone “requested the name to be queried” (ITO at par. 258).

[24] The August 23 ITO outlines various CPIC and police database searches performed by Richard Senior which where unconnected with his police duties. Some were personal. Others were connected to organized crime. On the latter issue Senior had done CPIC searches on Gordon Broadhead in 2007. Broadhead was by 2017 openly wearing the colours of an outlaw motorcycle group. More recently, in 2017 Senior did a CPIC search for a licence plate of a vehicle parked outside the marijuana production facility on Canal Road photographed in other images. That vehicle was owned by the step father of Gordon Broadhead.

[25] Aside from the illegal marijuana operation and outlaw motorcycle group members the ITO narrates a number of communications with a provincial prosecutor which support the inference that Senior was intervening in traffic ticket prosecutions for which he had no apparent involvement but which resulted in a favourable resolution for the driver. When Senior’s YRP emails were viewed they showed him using his work email to confirm that he had participated in fixing a traffic ticket in 2014 for the friend of another police officer. In June and August of 2018 Senior was intercepted on the phone and by messages on his phone discussing traffic ticket with a municipal prosecutor, and a third party which suggest that he was actively obstructing justice by intervening in Highway Traffic Act prosecutions which had nothing to do with him.

[26] It is against that background that the Titleman ITO discusses evidence seized from Richard Senior’s phone about Sherry Wafer.

[27] In paragraphs 84 – 88 the ITO narrates phone contact between Senior and Ms. Wafer beginning in November of 2017. Richard Senior attended at Ms. Wafer’s residence three times in April and May of 2018. The two have had continued phone contact Ms. Wafer is described as one of Richard Senior’s girlfriends.

[28] Notably, paragraph 86 outlines that “Wafer has been the subject of CPIC queries by Senior and he has checked her licence plate on two different occasions since their phone contact began in November of 2017.”

[29] Paragraphs 224 – 227 of the Titleman ITO discuss Ms. Wafer in more detail. Paragraph 224 quotes from an intercepted conversation from July 7, 2018.

SW: remember how we talked about the ice cream shop before

RS: yeah

SW: and then do you remember how I told you there were all those other issues that were going on with everything else they had

RS: right

SW: with the different ice cream shops the one that

RS: Yeah

SW Remember how

RS: yeah

SW: I told you about the other one in the other town

RS: yes

SW: Okay so somebody else was asked to get a different ice cream shop and um that’s where they’re going to store all of the ice cream going forward

RS: oh they got a freezer okay

SW: all of it like

RS this should be this should be you know what stop stop stop stop this should be a conversation that

SW: yeah I know well anyways

RS: this is a face to face conversation

[30] Later text messages which were intercepted on August 9, 2018 had Ms. Wafer sending Richard Senior a text saying “ Well I finally got my cones…had to drive to Etobicoke to get them”.

[31] Paragraph 227 outlines that on August 10, 2018 Senior received two images from Ms. Wafer which displayed boxes of RAW Cones which are used typically to make marijuana cigarettes.

[32] In paragraphs 338 – 343 the ITO summarizes the reason why a Part VI Authorization is sought against Ms. Wafer as a known person.

• Ms. Wafer was involved in marijuana production;

• Senior had an affinity to marijuana production and police officers generally assume that marijuana production is unlawful until proven otherwise;

• Messrs. Iandoli and Broadhead were involved in marijuana production;

• Senior is fully aware of Ms. Wafer’s marijuana production or wholly involved with it because of the coded nature of the July 7 conversation and Senior’s effort at cutting it short;

Breach of Trust

[33] The August 23, 2018 Part VI permitted interceptional activities for investigation of the offence of Breach of Trust on the part of Richard Senior. Other offences are mentioned: Unauthorized Use of Computer, and Obstruct Justice, but the constituent elements those latter two offences are more readily identifiable.

[34] The offence of breach of trust is outlined in s. 122 of the Criminal Code. The actus reus has four elements: The defendant was a public official; the defendant acted in connection with duties of his office; the defendant breached the standard of conduct and responsibility demanded of him or her by the nature of the office; and the defendant’s conduct represented a serious and marked departure from the standards expected of an individual in the defendants position of public trust, see R. v. Boulanger 2006 SCC 32, [2006] 2 S.C.R. 49.

Standard of Review

[35] The law is settled on the role of a trial court reviewing a prior judicial authorization and the test to be applied. Judicial Authorizations are presumptively valid. The Charter application attacking the authorization is not a de novo hearing. The reviewing judge must determine if the authorization could have been issued. When there is no amplification or cross-examination of the affiant the reviewing court must take the ITO on its face, hence the term facial validity. As the Court of Appeal said in R. v. Hafizi 2016 ONCA 933

43 …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 (Ont. C.A.), 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 (Ont. C.A.), 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 (S.C.C.), 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 (Ont. C.A.), at paras. 47 — 48.

See also R. v. Araujo 2000 SCC 65 at par. 51

Test for Issuance for a Part VI Authorization

[36] Part VI of the Criminal Code furnishes jurisdiction for judicial authorization of private communications of known persons. The test to apply is found in s. 185 (1) (e).

(e) 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, a general description of the nature and location of the place, if known, at which private communications are proposed to be intercepted and a general description of the manner of interception proposed to be used,

[37] The Code therefore permits interception if there are reasonable grounds to believe that it may assist the investigation of the offence. In the case at Bar the offences listed are in paragraph 1 of the August 23, 2018 Authorization, quoted above in paragraph 19. First, the person must be known to the police, and second there must be reasonable grounds to believe that interception of their private communications may assist the investigation of the offence. These are the two pre-conditions referred to by McIntyre J. in R. v. Chesson 1988 CanLII 54 (SCC), [1988] 2 S.C.R. 148 at 164 (par 20). With those two conditions satisfied the person is “known” for purposes of s. 185(1)(e).

[38] In R. v. Mahal 2012 ONCA 673 Watt JA described the test for being a known person as not onerous:

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; Schreinert, at para. 43; and R. v. Nugent, 2005 CanLII 790 (ON CA), 193 C.C.C. (3d) 191 (Ont. C.A.), at paras. 8-9.

See also R. v. Ascencio-Chavez 2016 BCCA 379 at para. 80

[39] In Mahal the Appellant made a similar argument to Ms. Wafer. Mr. Mahal was listed as a principal known person but argued that he should have been listed only as an “other known person”. In Mahal the impugned authorization had two groups of known persons: Principal known persons, and other known persons, see Mahal at par. 16. The Court of Appeal rejected the argument that, in law, there was any more than one category of known persons in s. 185(1)(e). Watt JA provided three reasons for this conclusion: s. 185(1)(e) provides that once a standard is met, no external test is necessary; secondly, the nexus between the “may assist” requirement in s. 185(1)(e), relates to the offence outlined in the authorization. A third reason was that s. 185 (1)(e) does not make a distinction between “principal known” and “other known” persons, see Mahal at paras. 81 – 83.

[40] I therefore find that, in law s. 185(1)(e) does not bifurcate the known person category into principal known and secondary known persons.

[41] There is one final point to be covered before applying the law to the facts of the case. In submissions it was suggested that there may be innocent inferences available on the facts disclosed in the ITO, and that insufficient weight was placed on those innocent inferences in it. The interpretive analysis to be applied at this stage is limited. I am not a fact finder. The reviewing court is not conducting a de novo hearing and thereby prefer innocent inferences more than other possible inferences. Again I turn to R. v. Hafizi 2016 ONCA 933

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 (Ont. C.A.), at para. 46; Nero, at paras. 68 and 70.

Application of Law

[42] The ITO of Det. Titleman makes out reasonable grounds to believe that Richard Senior was a corrupt police officer. He was fixing traffic tickets. He was using his access to police data via computer to obtain otherwise private information about the people he associated with both for obstruction of justice purposes and also his contacts in the criminal world, be they outlaw motorcycle group members, organized crime members or the associates of both groups. It is a reasonable inference that his daily duties as a traffic officer would not have given him a reason to run those CPIC searches for bona fide police sources. The ITO is replete with references to his unauthorized use of a computer and successful attempts to obstruct justice by fixing cases in traffic court.

[43] Beyond that the ITO outlines Richard Senior’s connection with illegal marijuana grow operations. This case was investigated before the enactment of the Cannabis Act, and simultaneous repeal of Schedules VII and VIII of the Controlled Drugs and Substances Act S.C. 1996 c. 19 9 (CDSA). In August of 2018 production of Marijuana was an Indictable offence. The ITO of Det. Titleman supports an inference that Senior had knowledge of at least two such illicit production facilities, one on Canal Road, and another featured in the background of a picture with Ms. Wafer. It is a reasonable inference that Richard Senior knew of this illegality but did nothing to enforce the CDSA.

[44] The ITO makes clear that Richard Senior was using his access to police data via his computer in connection with illicit marijuana production. He ran CPIC queries for Danny Iandoli, who owned a company located at the site of the Canal Road location thought to be a marijuana production facility. The ITO outlines the reasons why Det. Titleman believed Mr. Iandoli was tied to organized crime.

[45] Paragraphs 224 – 229 of the ITO support the inference that Richard Senior was in a romantic relationship with Ms. Wafer, that she was involved in the illicit production of marijuana, and that they had a conversation on the phone which was coded. The defence does not dispute the coded nature of the July 11, 2018 call outlined in paragraph 224. The awkward reference in that call between Ms. Wafer and Mr. Senior to “Ice Cream” can be logically connected to the images Ms. Wafer sent to Mr. Senior one month later, on August 10, 2018 which shows RAW cones, which are used for making marijuana cigarettes. Those paragraphs support the inference, easily in my finding, that Richard Senior knew about Ms. Wafer’s marijuana production. His assertion at the end of the call that they should be speaking face to face and not by telephony bolsters that inference. There may be other inferences available from this phone call, but one of them is that Richard Senior knew full well about Ms. Wafer producing marijuana, and wanted it kept secret.

[46] I place those paragraphs in context, including paragraph 86 where the affiant narrates Richard Senior running Ms. Wafer’s licence plate on CPIC twice in November of 2017.

[47] The ITO therefore makes a case that Richard Senior knew of two illicit marijuana production facilities, one at 2447 Canal Road Bradford, and another depicted in a photograph of Ms. Wafer. He ran CPIC inquiries about persons tied to each. On the evidence in the ITO, Richard Senior, a uniformed police officer tasked with enforcing the Highway Traffic Act, had personal knowledge of two illicit marijuana production facilities, did nothing to enforce the law in regards to either, and ran CPIC inquiries for reasons which could easily be seen as illegal. It is unnecessary to decide whether this amounted a Breach of Trust under s. 122. It is sufficient for me to find that reasonable grounds existed to investigate Richard Senior for that offence as well as the others, and I do so. At a minimum reasonable grounds existed that Interception of Ms. Wafer’s private communications “may assist” in the investigation of the listed offences against Richard Senior.

[48] For these reasons I reject the defence argument that the August 23, 2018 Part VI Authorization was facially invalid. Despite the able argument of Mr. Lafontaine and Ms. Kushner the Charter Application is dismissed. There is no s. 8 violation.

Obiter findings – s. 24(2)

[49] There is no need to address the exclusion argument with the s. 8 finding established, but the parties argued that point so I would make the following obiter findings.

[50] In this case there is no evidence upon which I could find that the police were remiss in their duties. They obtained a variety of judicial authorizations from different judges each of which expanded on the last. The ultimate search warrant yielded two handguns. This was an attack on the facial validity of the August 23 ITO, so I have no contradictory, or extrinsic evidence which might support a finding of lack of good faith. Sometimes subfacial attacks on an authorization yield that kind of evidence, but that is not the case here.

[51] I am left with a lengthy ITO sworn to by a police detective in support of a Part VI Authorization. The police here did what they are expected to do in order to comply with Charter principles. They made full fair and frank disclosure to a Judge in order to obtain an authorization. Det. Titleman chose to include in his affidavit only those images from Richard Senior’s phone which advanced reasonable grounds for the Application and did not include any other “revealing” photographs on Senior’s phone from his various romantic partners. Their privacy was respected to that extent. This supports a finding of good faith. I take guidance in this finding from R. v. Blake 2010 ONCA 1, where Doherty JA said,

25 Not only do I agree with the trial judge's finding of good faith on the part of the investigators, I can see no possible criticism of the police conduct on this trial record. Throughout the process that culminated in the seizure of the evidence, they acted exactly as they were obligated to under the law. They were required to obtain a warrant before entering the residence. They did so. They were required to make full disclosure to the justice of the peace. There is no suggestion that they did not do so. The police, and later the Crown, were legally obligated to protect the identity of the confidential informants by removing all material from the information that could identify the informants before making that material available to the defence. They did that. Given the manner in which the s. 8 claim was litigated, the police acted not only in good faith, but as required by the law. The police conduct in this case does not fit anywhere on the misconduct continuum described in Grant, at para. 74.

26 The police conduct in this case is somewhat analogous to the conduct considered in cases where the police have gathered evidence according to the law as it was understood at the time the evidence was gathered only to have the law changed or declared unconstitutional at some subsequent point, but before the evidence is tendered at trial: see e.g. R. v. Sanelli, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30 (S.C.C.), at pp. 59-60; R. v. Wijesinha, 1995 CanLII 67 (SCC), [1995] 3 S.C.R. 422 (S.C.C.), at paras. 55-56. In those cases, the police acted not only in good faith, but in accordance with the law as it stood at the time. Under the Collins approach, real evidence obtained in this manner was inevitably admitted.

27 The nature of the state conduct resulting in the constitutional infringement in this case seems to fall outside the paradigm described in Grant. If it is within that paradigm, it is clearly at the far end of the spectrum favouring admissibility. The appellant has not availed himself of the various options open to him that would potentially have allowed further assessment of the police conduct. In these circumstances it would be inappropriate to presume that the police did anything other than conduct themselves in accordance with the applicable legal rules.

[52] I therefore would find that any Charter violation was not serious. The first prong of the test from R. v. Grant 2009 SCC 32 slightly favours admission of the evidence. In this case said to be the wiretaps quoted in Det. Sparkes ITO to obtain a conventional warrant to search Ms. Christie’s residence on October 10.

[53] On the second prong of Grant I would find that interception of Ms. Wafer’s and Ms. Christie’s private communications without a lawful authorization had a significant impact on their Charter protected interests. Their informational privacy was invaded by interception of private communications, and subsequent execution of the conventional search warrant was a violation of their territorial privacy if it was warrantless. The second prong of Grant strongly favours exclusion of evidence.

[54] Lastly, the third prong of Grant considers societies interest in adjudication of the trial on the merits. Society always has an interest in adjudication of a trial on its merits. The question is by how much. In this case the police intercepted communications and seized two handguns. Mr. Lafontaine said in submissions that his client has a defence on the merits of the case. The gun seizures are objectively reliable evidence, which pulls towards admission of those items. I have not heard the wiretaps so I do not know how reliable they are, and so could not find them to be either reliable or unreliable. It is too early in the trial to say. The gun charges against Ms. Christie are serious but the drug charges are less so. Parliament amended the legislation only weeks after the events leading to these charges to repeal the marijuana provisions in the CDSA, and replace it with a new piece of legislation, the Cannabis Act, which decriminalizes possession of small amounts of marijuana and growing small number of plants. The third prong of Grant strongly favours admission of the firearms, and modestly favours admission of the wiretaps.

[55] On balance I would not exclude either the interceptions or the handguns from the evidence at trial if there had been Charter violations.

Released: December 3, 2021

Signed: Justice David Rose