R. v. Bisson, [1994] 3 S.C.R. 1097

Marcel Bélair, Jasmine Bisson, Carmen Lortie-Fleury, Normand Lortie, Robert Lortie, Marcel Perron, Richard Ponton, Pierre Readman, Francine Ricard, Michel Rioux and Claude St-Georges Appellants

v.

The Attorney General of Canada Respondent

Indexed as: R. v. Bisson

File No.: 24010.

1994: November 28; 1994: December 15.

Present: La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for quebec

Criminal law -- Interception of private communications -- Validity of wiretap authorizations -- Appellants charged with conspiracy to traffic in narcotics -- Crown's evidence consisting of intercepted communications -- Trial judge finding errors in supporting affidavit material and setting aside authorizations -- Appellants acquitted -- Court of Appeal setting aside acquittals and ordering new trial -- Errors in information presented to authorizing judge not leading to automatic vitiation of authorization -- Sufficient reliable information to support authorization.

Held: The appeal should be dismissed.

Cases Cited

Referred to: R. v. Garofoli, [1990] 2 S.C.R. 1421.

APPEAL from a judgment of the Quebec Court of Appeal, [1994] R.J.Q. 308, 87 C.C.C. (3d) 440, 60 Q.A.C. 173, allowing the Crown's appeal from the appellants' acquittal on charges of conspiracy to traffic in narcotics and ordering a new trial. Appeal dismissed.

André Gagnier, Jacques Bouchard, Mario Longpré, Gilles Richard, Micheline Paradis, Isabel Ducharme and Lise Rochefort, for the appellants.

Ronald Schachter and Robert Marchi, for the respondent.

The following is the judgment delivered by

The Court -- We are all of the view that this appeal as of right should be dismissed. The trial judge found that the affidavit material presented to the authorizing judge contained an error of non-disclosure relating to the retraction of Eric Lortie, a failure to state his age, and an error in including him as a target and accomplice. Having found such errors, the trial judge proceeded to vitiate the wiretap authorization finding that the police officer deliberately misled the authorizing judge. In so doing, the trial judge fell into error.

I. As stated in R. v. Garofoli, [1990] 2 S.C.R. 1421, errors in the information presented to the authorizing judge, whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselves lead to automatic vitiation of the wiretap authorization as was done by the trial judge. The trial judge should have examined the information in the affidavit which was independent of the evidence concerning Eric Lortie in order to determine whether, in light of his finding, there was sufficient reliable information to support an authorization. Proulx J.A., writing for the Quebec Court of Appeal, [1994] R.J.Q. 308, 87 C.C.C. (3d) 440, 60 Q.A.C. 173, carefully reviewed and analyzed the affidavit after excluding the paragraphs directly affected by the retraction. On the basis of this analysis, we are satisfied that there was sufficient independently verifiable information which was not affected by the trial judge's finding and upon which an authorization could reasonably be based.

II. The appeal is therefore dismissed.

Appeal dismissed.

Solicitor for the appellants Marcel Bélair and Claude St-Georges: Gilles Richard, Montréal.

Solicitor for the appellant Jasmine Bisson: Isabel Ducharme, Montréal.

Solicitor for the appellant Carmen Lortie-Fleury: Micheline Paradis, Chomedey, Quebec.

Solicitors for the appellant Normand Lortie: Bouchard, Filteau, Doré, Montréal.

Solicitors for the appellants Robert Lortie and Pierre Readman: Labelle, Boudrault, Côté & Associés, Montréal.

Solicitor for the appellant Marcel Perron: Mario Longpré, Montréal.

Solicitor for the appellants Richard Ponton and Francine Ricard: Pierre Panaccio, Montréal.

Solicitor for the appellant Michel Rioux: Lise Rochefort, Montréal.

Solicitor for the respondent: George Thomson, Ottawa.