R. v. Lachance, [1990] 2 S.C.R. 1490
David Lachance Appellant
v.
Her Majesty The Queen Respondent
indexed as: r. v. lachance
1989: October 3, 4; 1990: November 22.
Present: Dickson C.J.1 and Lamer C.J.2 and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and McLachlin JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Interception of private communications ‑‑ Access to sealed packet ‑‑ Validity of wiretap authorizations ‑‑ Grounds for challenging authorizations and appropriate remedies ‑‑ Protection of identity of informers ‑‑ Editing of affidavits ‑‑ Entitlement of accused to cross‑examine on affidavits ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, Part IV.1.
Criminal law ‑‑ Interception of private communications ‑‑ Admissibility of evidence ‑‑ Relationship between s. 178.16 of Criminal Code and s. 24(2) of Canadian Charter of Rights and Freedoms.
Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Interception of private communications ‑‑ Judge failing to include minimization clause in wiretap authorization ‑‑ Whether authorization violates s. 8 of Canadian Charter of Rights and Freedoms.
Appellant was convicted of aggravated assault. Wiretap evidence was introduced by the Crown. The trial judge found that there was no evidence indicating any fraud, non‑disclosure or misleading disclosure on the part of any individual engaged in obtaining the wiretap authorization, and that the authorization was perfectly valid on its face. He ruled the evidence admissible. No application was made to open the sealed packet. The Court of Appeal upheld the conviction. It found that when paras. 3(i) and 5(h) of the wiretap authorization were read together, the authorization was too broad, but found para. 3(i) to be severable. As none of the intercepted communications was obtained pursuant to the severed paragraph, the admissibility of the evidence was not affected. The court opened and edited the sealed packet and made the material available to appellant. It denied appellant the right to cross‑examine on the affidavit, however, on the ground that to be allowed to cross‑examine, the applicant must make a specific allegation of falsehood or reckless disregard for the truth, provide prima facie proof of the allegation, and demonstrate that if the impugned material is set aside the remaining material is insufficient to sustain the authorization. The main issues on this appeal are whether the absence of minimizing conditions on the face of the authorization results in authorization of an unreasonable search and seizure in violation of s. 8 of the Canadian Charter of Rights and Freedoms; whether the accused is entitled to access to the material in the sealed packet; on what terms an accused may challenge an authorization for wiretap; special requirements relating to informants; the procedure for editing affidavits in the sealed packet; and whether the accused is entitled to cross‑examine on the affidavits.
Held (L'Heureux‑Dubé and McLachlin JJ. dissenting): The appeal should be allowed.
Per Dickson C.J. and Lamer C.J. and La Forest, Sopinka and Gonthier JJ.: While paras. 3(i) and 5(h), read together, mean that the authorization is overly broad, para. 3(i) can be severed from the authorization. Appellant has not satisfied the Court that the possible interception of irrelevant communications renders the authorization unreasonable and hence in violation of s. 8 of the Charter. For the reasons given in Dersch, the Court of Appeal was right in opening the sealed packet. In accordance with the principles set out in Garofoli, the affidavits relied on in support of the authorization are sufficient on their face, and the Court of Appeal complied with the principles governing the editing of the contents of the sealed packet, but the Court of Appeal erred in refusing to permit cross‑examination of the affiant, because appellant had established a basis for cross‑examination by calling into question whether s. 178.13(1)(b) had been complied with. Appellant is therefore entitled to a new trial.
Per L'Heureux‑Dubé and McLachlin JJ. (dissenting): The question of access to the packet is a matter within the discretion of the judge hearing the application, who must balance the interests of an accused in privacy and a fair trial, including the right to make full answer and defence, with the public interest in the administration of justice. The balance in this case mandates the conclusion of the Court of Appeal that the packet should have been opened, subject to editing.
In deciding whether the accused may cross‑examine on the affidavit, the judge must again balance the interests of the accused with the public interest in the administration of justice. Given that cross‑examination may present greater problems for the administration of justice and less importance, from the point of view of ensuring a fair trial, than does access to the packet, the balance will generally favour denial unless the accused is able to make a preliminary showing establishing the special relevance of the cross‑examination. Here the Court of Appeal satisfied itself that the appellant had not made such a preliminary showing, and there was no error in that conclusion.
Cases Cited
By Sopinka J.
Applied: R. v. Garofoli, [1990] 2 S.C.R. 000; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 000; referred to: R. v. Hunter (1987), 1987 CanLII 123 (ON CA), 57 C.R. (3d) 1; R. v. Parmar (1987), 1987 CanLII 4104 (ON SC), 37 C.C.C. (3d) 300; Grabowski v. The Queen, 1985 CanLII 13 (SCC), [1985] 2 S.C.R. 434; R. v. Zito, [1990] 2 S.C.R. 000.
By McLachlin J. (dissenting)
R. v. Garofoli, [1990] 2 S.C.R. 000; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 000; R. v. Zito, [1990] 2 S.C.R. 000.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 8.
Criminal Code, R.S.C. 1970, c. C‑34, ss. 178.13(1)(b) [ad. 1973‑74, c. 50, s. 2; rep. & sub. 1976‑77, c. 53, s. 9], 610.
APPEAL from a judgment of the Ontario Court of Appeal (1988), 27 O.A.C. 45, dismissing appellant's appeal from a conviction on a charge of aggravated assault. Appeal allowed, L'Heureux‑Dubé and McLachlin JJ. dissenting.
Michael Code and Frank Addario, for the appellant.
Jeff Casey and Scott Hutchison, for the respondent.
//Sopinka J.//
The judgment of Dickson C.J. and Lamer C.J. and La Forest, Sopinka and Gonthier JJ. was delivered by
SOPINKA J. -- This appeal was heard as part of a series of wiretap cases along with Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 000; R. v. Zito, [1990] 2 S.C.R. 000; and R. v. Garofoli, [1990] 2 S.C.R. 000. It raises issues consequent on the opening of the sealed packet. The issues are substantially the same as those which are dealt with more fully in Garofoli.
Facts
Aggravated Assault
The appellant and his brother, David Lachance, were convicted by Ferguson Dist. Ct. J., sitting alone, of aggravated assault of Derrick Hollett. The appellant had become acquainted with Hollett at the Don Jail in Toronto. In January 1985, the Lachance brothers were involved in trafficking speed with Hollett. Hollett's debts to them are variously reported as $500 to $4,000. Wiretap evidence showed that both the appellant and his brother were looking for Hollett to collect the money. Hollett, however, successfully avoided them despite his promises to pay. In one particular instance, he made the excuse that he had been arrested for breaking and entering. He arranged to meet with the Lachance brothers at a donut shop to show them the bail papers, but did not show up.
On March 27, 1985 Hollett was visiting a friend's apartment. The Lachance brothers arrived at about 7:00 p.m. Hollett went to the bathroom. The trial judge found as fact that Hollett emerged from the bathroom concealing a knife in his right hand. He confronted the appellant, who saw the concealed knife. The appellant punched Hollett in the face, which the trial judge found to be reasonable force used in self-defence. The trial judge found that Daniel Lachance did not see the concealed knife, and that Hollett's threatening behaviour was not directed towards Daniel Lachance. Daniel Lachance moved behind Hollett, held his knife to Hollett's throat, and wounded Hollett. The appellant took Hollett's knife. With it, he cut Hollett's face, slit his stomach area, and stabbed him in the stomach and chest.
The wiretap evidence was an important factor in the factual findings. It confirmed elements of Hollett's testimony. Hollett might not otherwise have made a very credible witness due to, among other things, his long criminal record. The trial judge referred in particular to two interceptions made March 28, the day following the stabbing. He said:
The intercepted communications which were admitted in evidence leave in my mind no doubt whatsoever that both of the accused were intent on confronting Hollett and that they were entirely satisfied with the manner in which Hollett had been dealt with physically. The words used by them in the intercepted communications are consistent only with the conclusion that they boasted of their physical accomplishment.
Wiretaps
The relevant authorizations for wiretaps were obtained with respect to the robbery of a precious metal dealer, Intercontinental Gold, in December, 1984. Authorizations were obtained on January 31, February 8, and February 27, 1985. Each was obtained on the basis of an affidavit sworn by Sergeant John Lamont. The intercepted communications tendered as evidence were all obtained under the February 27 authorization.
The January 31 affidavit names 5 individuals as targets, who the police believed committed the robbery on the basis of information from an informant and other investigation. The February 8 affidavit is substantially the same, but corrects the addresses given for two of the targets. The February 27 affidavit repeats the contents of the prior affidavits. It then adds new facts, set out in para. 1(i).
(i) That subsequently Sergeant Paul Landry, a member of the Metropolitan Toronto Police Force attached to the Hold-Up Squad, has informed and I verily believe:
(i) That on the 9th day of February, 1985, he had conversation with an informant, who has not been previously mentioned in this my Affidavit.
(ii) That this informant told him that Art Szostak and a male he knew only as Ted set up the robbery of Intercontinental Gold previously mentioned in this my Affidavit.
(iii) That the informant told him that the jewellery stolen from Intercontinental Gold was given to a male party he knew only as "The Jew" to sell.
(iv) That the informant told him that Art Szostak and "Ted" have recruited at least three other men to do another robbery for them in the near future. (At present, it is not known if there are other participants in this planned robbery.)
(v) That the informant told him that these three men were Daniel LaChance, his brother David LaChance and Derrick Hollett.
(vi) That the informant told him that as a result of having been previously investigated by the police for Conspiracy to Commit Robbery, the three men were aware they were known to the police and would take measures to avoid police surveillance.
In paragraph 1(j) Sergeant Lamont deposes that based on his own observations and investigations, he verily believes that the information obtained by Sergeant Landry from the informant is correct. Later, in para. 10 of the affidavit, Sergeant Lamont repeats his belief that the targets are uncooperative and surveillance-conscious. He deposes that the targets form a close-knit group of friends and relatives, so that any attempt to involve an undercover police officer would be futile. He deposes that the only remaining investigative step would be to question the targets, which would be highly unlikely to assist the investigation. He therefore concludes that the only practical investigative technique would be to intercept the private communications of the targets.
In Hollett's testimony at trial, it is apparent that he is the informant referred to in Sergeant Lamont's affidavit. He testified in chief that he was arrested for cocaine possession in January or February 1985. He testified in cross-examination that he lied when he told David and Daniel Lachance that he was arrested for breaking and entering, but that he lied in order to cover up his involvement with the Hold-Up Squad. In re-examination he testified that sometime in February 1985 he began working for the Hold-Up Squad as an informant. He told them of the involvement of the Lachance brothers in the Intercontinental Gold robbery. He was asked by the Hold-Up Squad to "get back in" with the Lachance brothers, which he attempted to do. He was aware that when he telephoned the Lachance brothers, the telephones were wiretapped. The Hold-Up Squad asked him to arrange a meeting with the Lachance brothers, and to wear a body pak for the meeting. Hollett agreed to do this, although he was skeptical about the idea.
Sergeant Lamont's testimony on voir dire also supports the inference that Hollett was the informant referred to in the affidavit. He testified in chief that part of the information implicating the Lachance brothers in the robbery was obtained from the informant, Hollett. In cross-examination he testified that he first met Hollett in late February 1985, although his partner had had earlier contact with him. On cross-examination he was asked why Hollett was named on the authorization. He testified that the police had believed other offences were about to take place, although Hollett was not a suspect in relation to the offences listed in the authorization.
Judgments
District Court of Ontario
Only the Crown adduced evidence with respect to the admissibility of the wiretap evidence. Ferguson Dist. Ct. J. found that there was no evidence indicating any fraud, non-disclosure or misleading disclosure on the part of any individual engaged in obtaining the authorization. The trial judge held that the authorization was perfectly valid on its face. He therefore ruled the evidence admissible. No application was made to open the sealed packet because counsel was of the view that, based on the state of the law at the time, such an application could not succeed.
Court of Appeal (Howland C.J.O., Cory and Finlayson JJ.A.) (1988), 27 O.A.C. 45
With respect to the wiretaps, it was argued first that the intercepted communications should not be admitted because when paras. 3(i) and 5(h) of the authorization were read together the authorization contained no limitation as to persons or places. Crown counsel conceded that the authorization was too broad. The court accepted the Crown's submission that para. 3(i) of the authorization was severable. As none of the intercepted communications was obtained pursuant to the severed paragraph, the admissibility of the evidence was not affected.
Next, the appellant submitted that because the sealed packet had not been opened and made available to them, the private communications should not have been admitted. The court rejected this claim, but, on the basis of cases that had been decided subsequent to the trial judge's decision, opened and edited the sealed packet and adjourned so that the appellant could consider the material.
The appellant raised three arguments with respect to the affidavits. First, it was argued that one of the authorizations was invalid because it was based upon an unsworn affidavit. The jurat in the affidavit had not been completed by the Commissioner for Oaths, although the date had been inserted. The Court of Appeal, pursuant to s. 610 of the Criminal Code, R.S.C. 1970, c. C-34, called as witnesses Sergeant Lamont and the agent for the Attorney General who obtained the authorization. They were examined in chief by the Crown and cross-examined by counsel for Daniel Lachance. On this viva voce evidence, the Court concluded that the affiant had sworn the affidavit and the jurat had been left incomplete by oversight. Thus the authorization was not invalid.
Second, the appellant argued that he should have received the entire unedited contents of the packet in order to conduct a full cross-examination of Sergeant Lamont, particularly as to whether he had reasonable and probable grounds to believe information provided by an informant. The Court of Appeal held, following R. v. Hunter (1987), 1987 CanLII 123 (ON CA), 57 C.R. (3d) 1 (Ont. C.A.), that the affidavit must be edited to protect informants, but the Court must proceed on the basis of the material as edited.
Third, the appellant submitted that opening the packet automatically gave rise to a right to cross-examine the affiant as to its contents. The Court rejected this argument. Because an authorization is an order made by a judge based upon a sworn affidavit, there is a presumption as to its validity. The Court approved of the test set out in R. v. Parmar (1987), 1987 CanLII 4104 (ON SC), 37 C.C.C. (3d) 300, which holds that to be allowed to cross-examine, the applicant must (1) make a specific allegation of falsehood or reckless disregard to the truth, (2) provide prima facie proof of the allegation, in the sense of being sufficient to entitle an issue to be put before a jury, and (3) demonstrate that if the impugned material is set aside the remaining material is insufficient to sustain the authorization.
Applying these conclusions to the facts, the Court of Appeal held that there was no evidence in the sealed packet, in the voir dire, or in the trial which would lead to the conclusion that the appellant was entitled to cross-examine the affiant, that the authorization was improperly granted, or that the wiretap evidence was inadmissible. The Court added that it was satisfied that it had been demonstrated that no other means of investigation was likely to succeed, and that there was no misrepresentation with respect to Hollett and his role as a police informant.
Points in Issue
The appellant's many submissions in this Court can be usefully subsumed under the following points in issue:
Does the absence of minimizing conditions on the face of the authorization result in the authorization of an unreasonable search and seizure in violation of s. 8 of the Canadian Charter of Rights and Freedoms?
What is the entitlement of an accused person to open the sealed packet?
Upon what grounds may an accused person challenge an authorization for wiretap and before what court?
What remedy is appropriate?
What special requirements apply when information from informants is relied on to obtain an authorization?
What principles and procedures apply to the editing of the contents of the sealed packet?
Is the accused entitled to cross-examine on the affidavit filed with the authorizing judge?
1. Does the absence of minimizing conditions on the face of the authorization result in the authorization of an unreasonable search and seizure in violation of s. 8 of the Charter?
This issue goes to the validity of the authorization on its face. The appellant relies on two arguments with respect to minimization. First, it is argued that when paras. 3(i) and 5(h) of the authorization are read together, the authorization is overbroad and hence unlawful under the Criminal Code and unreasonable under s. 8 of the Charter. Second, he adopts the submission of the appellant in Garofoli that the absence of minimizing conditions creates the possibility of interception of a high number of irrelevant private communications, and thereby renders the authorization unreasonable.
Is the Authorization Overbroad?
The Crown conceded, as it did before the Court of Appeal, that the authorization is overbroad. When paragraphs 3(i) and 5(h) are read together, the authorization creates no limitation with respect to persons and places, contrary to this Court's decision in Grabowski v. The Queen, 1985 CanLII 13 (SCC), [1985] 2 S.C.R. 434.
The contentious issue is whether para. 3(i) can be severed from the authorization. If paragraph 3(i) cannot be severed from the authorization, then the Crown concedes that the authorization is invalid because it is overbroad. If paragraph 3(i) can be severed, then the authorization is facially valid and the interceptions are in accordance with its terms.
The power to sever is recognized in Grabowski. If the offending portion of an authorization can be severed and the remaining portion is sufficient to authorize the interceptions at issue, then the lawfulness, and hence admissibility, of the evidence is not affected.
The appellant argues that para. 3(i) cannot be severed, because para. 3 is referred to in para. 5(h). Deleting para. 3(i) must alter the meaning of para. 5(h). The appellant submits that it is illegitimate to amend para. 5(h) in this manner. Paragraph 3(i) must be retained or the whole must fall.
I am in complete agreement with the Court of Appeal that para. 3(i) is severable. I am content to adopt its reasons on this point (at p. 48).
We do not read Grabowski v. The Queen [supra] as compelling us to read the invalid clause 3(i) in conjunction with the valid clause 5(h) so as to render both clauses invalid. Rather, we believe that the decision will always depend upon a reading of the impugned clauses to determine whether they must be read together or whether they can reasonably be read independently. If the clauses can be read independently, then only the offending clause need be severed. Thus, one of two impugned clauses may well be severable depending on the wording of the authorization in question. With that done, it can then be determined whether the intercepted communications come within the purview of the remaining valid clauses of the authorization.
This court found it appropriate to sever only one clause in a somewhat similarly worded authorization in R. v. Paterson, Ackworth and Kovach (1985), 1985 CanLII 167 (ON CA), 7 O.A.C. 105; 18 C.C.C. (3d) 137, aff'd. (1987), 79 N.R. 316; 23 O.A.C. 81. The same procedure should be adopted in this case. Here, the impugned clauses do not have to be read together and only para. 3(i) need be deleted. When para. 3(i) is deleted, it can be seen that the intercepted calls come within the scope of the valid clause 5(h) and should not be excluded on this ground. [Emphasis added.]
The reference in para. 5(h) of para. 3 coupled with the severance of para. 3(i) does not create such a change in meaning that the two clauses cannot reasonably be read independently. The meaning of para. 5(h) remains abundantly clear. This ground of appeal must be rejected.
Possibility of Interception of Irrelevant Private Communications
For the reasons given in Garofoli I conclude that the appellant has not satisfied the Court that the possible interception of irrelevant communications renders the authorization unreasonable and hence in violation of s. 8 of the Charter.
2. What is the entitlement of an accused person to open the sealed packet?
For the reasons which I gave in Dersch, the Court of Appeal was right in opening the sealed packet.
3. Upon what grounds may an accused person challenge an authorization for wiretap and before what court?
4. What remedy is appropriate?
5. What special requirements apply when information from informants is relied on to obtain an authorization?
These issues all relate to the sufficiency of the affidavit in meeting the requirements for a legally valid authorization. The principles are set out in my reasons in Garofoli. Applying those principles, I agree with the conclusion of the Court of Appeal that the affidavits relied on in support of the authorization are sufficient on their face.
6. What principles and procedures apply to the editing of the contents of the sealed packet?
The principles with respect to editing are set out in my reasons in Garofoli. The Court of Appeal complied substantially with those principles. This ground of appeal therefore fails.
7. Is the accused entitled to cross-examine on the affidavit filed with the authorizing judge?
The principles that should govern an application to cross-examine the affiant on the affidavit filed in support of an authorization are set out in my reasons in Garofoli. Applying those principles, I am of the opinion that the Court of Appeal erred in refusing to permit cross-examination of Sergeant Lamont. The appellant had established a basis for cross-examination. From the evidence at trial it can be inferred that Hollett is the informant referred to in the affidavit. The affidavit of Sergeant Lamont treats the informant and Hollett as two different people. This is misleading on a matter which relates to the basis of the decision of the authorizing judge. It bears directly on the issue as to whether the only practical investigative technique available is to intercept the private communications of the subjects. In paragraph 10(b) of his affidavit, Sergeant Lamont swears in part: "Any attempt to involve an undercover police officer in the activities or investigation of these parties would be futile and not result in any further evidence being obtained." The force of this assertion is considerably weakened by the fact that the police have an undercover informant. While there is evidence to suggest that continued use of Hollett was difficult because he was avoiding the Lachance brothers, we do not know what Sergeant Lamont's belief was in this regard. Cross-examination may very well have revealed that Hollett could still perform that role. In this regard, the following question and answer in the re-examination of Hollett by the Crown are pertinent:
Q. Why was it that you told Dave LaChance that lie then?
A. I was told to say by the Hold-up Squad to try and get back in to get information. [Emphasis added.]
If Sergeant Lamont's cross-examination impeached his statement in the affidavit as to the use of other investigative techniques, there would be no basis for granting the authorization. Section 178.13(1)(b) requires that the authorizing judge be satisfied that "other investigative procedures are unlikely to succeed". There must therefore be a new trial on this ground.
Disposition
I have found that applying the principles outlined in my reasons in Garofoli, the appellant was entitled to cross-examine Sergeant Lamont on his affidavit filed in support of the authorization herein. Cross-examination having been denied, the appellant is entitled to a new trial.
//McLachlin J.//
The reasons of L'Heureux-Dubé and McLachlin JJ. were delivered by
MCLACHLIN J. (dissenting) -- This appeal deals with various aspects of the law concerning the electronic interception of private communications. It is one of a series of wiretap cases which also includes R. v. Garofoli, [1990] 2 S.C.R. 000; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 000; and R. v. Zito, [1990] 2 S.C.R. 000. Mr. Justice Sopinka has written judgments in each of these cases. I explained in my reasons in Garofoli that my interpretation of Part IV.1 of the Criminal Code, R.S.C. 1970, c. C-34, leads me to a different conclusion with respect to a number of the questions presented by these appeals. In light of the position I adopt in Garofoli, it is necessary to comment briefly on some of the issues raised in this case.
In particular, I take a different approach to three of the points in issue which Sopinka J. sets out in his reasons in this case: (1) the entitlement of an accused person to open the packet, (2) the grounds upon which an accused person may challenge an authorization and the court in which this is to be done, and (3) an accused's entitlement to cross-examine on the affidavit filed with the authorizing judge. My position with respect to the grounds upon which an accused may challenge an authorization and the court in which this is to be done is fully set out in my reasons in Garofoli, so I will not repeat that discussion here.
Turning to the question of access to the packet, for the reasons which I gave in Garofoli I view this as a matter within the discretion of the judge hearing the application. The judge must exercise this discretion by balancing the interests of an accused in privacy and a fair trial, including the right to make full answer and defence, with the public interest in the administration of justice. In this case, the Court of Appeal held that the packet should have been opened, subject to editing. I agree that the balance in this case between the interests of the accused and the public interest in the administration of justice mandates that conclusion.
Next, I consider the question of an accused's entitlement to cross-examine on the affidavit filed with the authorizing judge. As I explained in Garofoli, I would approach this problem in the same way as I did the question of opening the packet. The judge must again balance the interests of the accused with the public interest in the administration of justice. Given that cross-examination may present greater problems for the administration of justice and less importance, from the point of view of ensuring a fair trial, than does access to the packet, the balance will generally favour denial unless the accused is able to make a preliminary showing establishing the special relevance of the cross-examination.
In this case, the Court of Appeal refused to permit cross-examination of the affiant on the affidavit filed in support of the authorization. The Court of Appeal satisfied itself that the accused had been unable to make a preliminary showing establishing the special relevance of cross-examination. I see no error in this conclusion.
I would dismiss the appeal.
Appeal allowed, L'HEUREUX‑DUBÉ and MCLACHLIN JJ. dissenting.
Solicitors for the appellant: Ruby & Edwardh, Toronto.
Solicitor for the respondent: The Attorney General for Ontario, Toronto.
