ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1778-11
DATE: 2012/01/06
BETWEE N:
HER MAJESTY THE QUEEN
N. Gilks and A. Wiese, for the Respondent
Respondent
- and -
ROBERT DIXON, DAO VAN NGUYEN, TERRY WESTOVER
G. Lafontaine, for the Applicant Robert Dixon J. K. Lefurgey, for the Applicant Terry Westover
Applicants
HEARD: December 5 and 6, 2011
The Honourable Mr. Justice D.J. Taliano
[ 1 ] Robert Dixon and Terry Westover are jointly charged, with one other, with a number of offences relating to the importation and exportation of drugs, possession and trafficking of drugs, possession of the proceeds of crime, laundering the proceeds of crime and conspiracy to commit the specified offences. Their trial is scheduled to commence on March 12, 2012 in St. Catharines without a jury.
[ 2 ] At the trial, the Crown proposes to introduce evidence of private communications intercepted pursuant to two Part VI authorizations dated February 16, 2010 and April 16, 2010. Dixon and Westover have brought this application to exclude the evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982.c 11 on the grounds that the authorizations were obtained:
(a) on the basis of an unsworn, unsigned affidavit,
(b) in the absence of investigative necessity, and
(c) without reasonable grounds,
thereby infringing the rights of both accused under s. 8 of the Charter.
THE GOVERNING PROVISIONS:
[ 3 ] Section 185 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (CCC) provides in part as follows:
An application for an authorization to be given under section 186 shall be made ex parte and in writing to a judge of a superior court of criminal jurisdiction...and shall be accompanied by an affidavit, which may be sworn on the information and belief of a peace officer deposing to the following matters:
(c) the facts relied upon to justify the belief that an authorization should be given together with particulars of the offence,
(d) the type of private communication proposed to be intercepted,
(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,
(f) the number of instances, if any, on which an application has been made under this section in relation to the offence and a person named in the affidavit pursuant to paragraph (e) and on which the application was withdrawn or no authorization was given, the date on which each application was made and the name of the judge to whom each application was made,
(g) the period for which the authorization is requested, and
(h) whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or that the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.
[ 4 ] Section 186(1) of the CCC provides in part as follows:
An authorization under this section may be given if the judge to whom the application is made is satisfied
(a) that it would be in the best interests of the administration of justice to do so; and
(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.
[ 5 ] The prerequisite in s. 186(1)(a) that “the granting of the authorization be in the best interests of the administration of justice imports as a minimum requirement, consistent with s. 8 of the Charter, that the judge be satisfied that there are reasonable and probable grounds to believe that a particular offence or a conspiracy, attempt or incitement to commit it, has been, or is being committed and that the authorization sought will afford evidence of that offence”. (see R. v. Duarte, [1990] 1 S.C.R. 30.)
THE UNSIGNED AFFIDAVIT:
[ 6 ] An examination of the affidavit of Detective Constable George Knisely, dated February 16, 2009, which was used in support of the authorizations, indicates that his affidavit was unsigned. Further, the signature of the commissioner of oaths, Sharon Wright, who purportedly swore the affidavit, does not appear in the jurat of the signing page but rather only on appendices attached to the affidavit. To explain these irregularities, the Crown called Knisely and the commissioner as witnesses on the return of the defence Charter motion. Both witnesses were cross-examined.
[ 7 ] Knisely testified that he has been employed by the Niagara Regional Police Service for 32 years. He is presently assigned to the Intelligence Unit, whose responsibility it is to gather information regarding Organized Crime Groups within the Niagara Region. He has been involved in numerous, serious criminal offence investigations and drug investigations. He has been the affiant in over one hundred search warrant applications.
[ 8 ] He first became involved in this investigation which was called “Project Takeout” on December 1, 2009 when he was asked to prepare the paperwork for a one-party consent to intercept the private communications between undercover agent, Detective McCready and Kenneth Wu, who was the target of the investigation. Subsequently, he authored a dial number recorder warrant which was granted on December 11, 2009 and a tracking warrant which was granted on December 23, 2009. The evidence gathered pursuant to those authorizations formed the basis for the wire tap (Part VI) application which he also authored and which he submitted to the court on February 16, 2010. The materials he submitted to the court are contained in a three ring binder marked as Exhibit 1 on the hearing.
[ 9 ] Knisely testified that he had assembled the materials on the evening of February 15 th and left them on his desk in the intelligence office. He had made plans to have a secretary and the commissioner come in early the next day because “these things had to be signed, sworn to, bound, and taken before the Superior Court Judge.” This was his first Part VI application. It was also the first time he had brought a document to Mrs. Wright to commission. He described himself as being anxious the night before and frazzled the day of, because it was the “most frenzied signing day” he had ever had.
[ 10 ] His normal practice when processing search warrant applications was to swear them before a Crown attorney and then take them to a Provincial Court Justice. For some reason, in this instance, he had decided to pre-sign the documents and then bring them to the commissioner to be sworn. Unfortunately, he signed the affiant notice, a document that did not require his signature, rather than his lengthy affidavit, in error. When Sharon Wright, whom he had chosen to commission his affidavit arrived, he brought the application to her office thinking that he had already signed his affidavit. The materials were loosely stacked in a pile approximately six to eight inches high. He entered Mrs. Wright’s office and announced that he had some documents to be sworn. He described what happened next in the following words found at p. 12 of his transcript:
She proceeded to turn around, go to the cabinet behind herself, and took a Bible and asked me if I affirmed or swore on the Bible, which I advised her that I swear on the Bible. Then she proceeded to read an oath to me that was similar to “Do you swear that the documents or application and the substantive brought before me are the truth?” I swore to that document, or all the documents in my possession, and then divided out the appendices for her and the application on her desk, to be whatever she does with them, enter them into a book or whatever that I’ve seen her do before, after I’ve sworn to other documents in front of her….
[ 11 ] He then “divided out the appendices for her to process and removed the remaining documents and left her office.”
[ 12 ] In examination-in-chief at p. 13, line 16, he testified that he believes that when he left her office, he took his affidavit with him, along with other documents that did not need to be signed and started processing them. Once the appendices were properly identified by the commissioner, he retrieved them and inserted them into the package that was to be bound and presented to the court. Once the binding was completed the materials were inserted into a small white bankers box similar to Exhibit 2 and were presented to court later that same day. The authorization was granted notwithstanding that the officer’s affidavit had not been signed and the jurat had not been completed.
[ 13 ] However, not signing his affidavit was not the officer’s only mistake that day. The application included 12 appendices which should have been individually and consecutively numbered. The officer made 12 copies of the appendix format that included the number “2” and used those same pages for each appendix. He describes his actions as an “oversight” on his part. Worse still, his errors went undetected.
[ 14 ] In examination-in-chief at p. 14, line l3 and in cross-examination, at p. 30, line 30, he testified that when he left the commissioner’s office, he left the affidavit for her to sign behind. However, at p. 32 the following exchange took place:
Question: A little earlier you said you left the affidavits for her to sign, and now as I understand your evidence, the affidavit notice, the agent notice, the application record, and your affidavit, you took with you when you left?
Answer: Correct.
[ 15 ] Later, he amplified what occurred as follows at p. 32, line 22:
I brought all the documents in that have to be sworn to. I swore to the documents. She asked me whether I affirm or swear. I swore to the documents before her. Then I left the appendices cover page, which states “This is the appendix 2 to the affidavit of George Knisely sworn the 15 th of February, 2010.” I left 12 copies of that sheet with her. And I also left with her the affiant notice. Everything else I took out. It was in one big stack.”
[ 16 ] When the officer was questioned about whether the commissioner would know which document he was swearing to from a stack of paper measuring six to eight inches in height, the officer responded as follows at p. 41, line 18:
I would only bring documents before a commissioner of oath that I would be able to swear that they’re truthful…. I’m not going to bring a false document before the court.
[ 17 ] At p. 42 he stated:
I brought these documents in and asked her, as a commissioner of oath, that I’m to swear to these documents. She went through her conversation with me, the questions she needs to ask. I swore to those documents. I don’t expect the commissioner, Mrs. Wright in this case, to ask me each and every document, that it - that it is truthful, is there any lies in these documents. As a detective or a police officer, I believe she has a trust in me that I’m bringing these documents in to be sworn to, and if I swear to them, they’re truthful documents.
[ 18 ] Sharon Wright, the commissioner who dealt with this matter, had been employed as a police officer with the Niagara Regional Police Service and retired after 30 years of service in September of last year. She had performed the duties of a commissioner with the service over a period of four years, during which she maintained a log book where she recorded the duties that she performed. Sheets from the book were entered as Exhibit 3.
[ 19 ] Wright testified that Knisely and his signature were well known to her. He had made prior arrangements for her to swear some documents that day and when he arrived at her office on February 16, he was carrying a large stack of loose leaf documents that he wanted her to swear. She turned around at her desk to retrieve her ledger book and “went through the procedure that I always go through” following which she dated, signed and stamped the documents. When she was challenged with respect to her procedure that day she stated at p. 70, line 12:
I did my usual procedure, the way I always do it when someone comes to me and asks me if they can swear to it, and I did exactly what I was supposed to, what I’ve always done with, the paperwork that he gave me.
[ 20 ] During her in-chief examination, she was presented with the specific documents that were included in the stack of documents that were brought to her office that day and she was unable to positively identify most of them with the exception of the appendices which of course bore her signature. After commissioning the documents, Mrs. Wright wrote into her ledger book the words, “12 aff 1 Applic.,” meaning she thought she swore 12 affidavits and one application that day.
[ 21 ] In cross-examination, she stated that Knisley stood there for the most part as she processed the materials, but then had to leave. He retrieved them when she was finished with the documents. She was unable to recall if he left all of the documents with her or whether he took some with him when he left. She stated that her practice varied as to whether affiants signed the documents in front of her or prior to asking her to commission them. When she was asked if it was her policy to turn the affidavit to the signing page and ask the affiant if the contents were true and have them sign in front of her or confirm their signature, she responded that it was. Obviously that policy was not followed in this particular instance because the officer’s signature was not on the document. She was unable to say whether the officer’s affidavit was included in the stack of papers that were presented to her that day.
[ 22 ] Although Mrs. Wright indicated that she knew the difference between an affidavit and an appendix, she certainly failed to note the distinction on that particular day. Nor did she notice that the different appendices bore the same appendix number on each format. She simply stated that when he presented her with the stack of documents that she asked him if “everything that he brought to her and put in front of her was true” and he confirmed that they were. She then went through each one of them and signed those that needed her signature which totalled 13 documents. Although she thinks that the officer was in the room when she signed each document, she pointed out it was two years ago and she could not be sure. When asked if he pointed out where she was required to sign, she did not think that he did because the documents were “pretty self-explanatory.” When asked if the Affiant Notice that bore the officer’s signature was signed in front of her, she thinks it probably was signed in front of her but in re-examination, she frankly admitted she could not actually recall.
[ 23 ] Although s. 185(1) of the CCC requires that an application for an authorization be in writing and be accompanied by an affidavit, the CCC does not provide any guidance on the methodology of swearing an affidavit. However, s. 35(1) of the Interpretation Act, R.S.C. 1985, c. I-21 is helpful. It provides:
In every enactment, … “oath” includes a solemn affirmation or a declaration when the context applies to any person by whom and to any case in which a solemn affirmation or declaration may be made instead of an oath, and in the same cases the expression “sworn” includes the expression “affirmed” or “declared.”
[ 24 ] Provincial legislation does address the requirements. Section 9 of The Commissioners for Taking Affidavits Act, R.S.O. 1990, c. C.17 provides
Every oath and declaration shall be taken by the deponent in the presence of the commissioner, notary public, justice of the peace or other officer or person administering the oath or declaration who shall satisfy himself or herself of the genuineness of the signature of the deponent or declarant and shall administer the oath or declaration in the manner required by law before signing the jurat or declaration.
[ 25 ] The Province of Ontario issues a document entitled Information for Newly Appointed Lay Notaries Public (Non Lawyers) for the Province of Ontario. It states:
HOW TO ADMINISTER AN OATH TO A PERSON MAKING AN AFFIDAVIT
Require proof that the person appearing before you – the deponent – is the individual named in the affidavit or statutory declaration, unless such a document is required in the case of lost identification. If you know the person, it is not necessary to confirm his/her identity.
Ask the person to sign the affidavit or statutory declaration. If the affidavit or statutory declaration has already been signed, ask the person to re-endorse the document in your presence.
Address the person as follows:
i) Where the oath is administered, (hand a Bible or New Testament to the person)
“Do you swear that the contents of this affidavit as subscribed by you are true? So help you God.”
ii) Where an affirmation is administered, (after first amending the words “make oath and say” in the introduction to the affidavits to read “solemnly affirm and declare”)
“Do you solemnly affirm and declare that the contents of this affidavit as subscribed by you are true?”
iii) Where a solemn declaration is administered,
“Do you make this solemn declaration conscientiously believing it to be true and knowing that it is of the same force and effect as if made under oath?”
[ 26 ] If the answer is yes, the commissioner is authorized to complete the jurat.
[ 27 ] It is clear from the evidence of the detective and the commissioner, that several of the formalities for the administration of an oath were either not observed or were not well recalled after the passage of two years following the event. Chief among the deficiencies is the lack of signatures both of the affiant and the commissioner on the affidavit itself. However, the incomplete jurat has been held in two prior decisions not to be necessarily fatal to the validity of the process.
[ 28 ] In R. v. Lachance, [1988] O.J. No. 151 the Ontario Court of Appeal held that the lack of a signature in the jurat of an affidavit in the name of the peace officer did not invalidate the authorization. The Court was satisfied by viva voce testimony that the contents of the affidavit were sworn to in spite of the incomplete jurat.
[ 29 ] A similar result was reached in R. v. Blizzard (2005), 69 W.C.B. (2d) 28 (N.B.Q.B.).
[ 30 ] It is true that in both of these two decisions, the affidavits had been signed by the affiants. However, the swearing to the truth of the contents of a document can be demonstrated in several ways. The signing of the document by the affiant and the completion of the jurat by the commissioner are tangible pieces of evidence to the fact that the contents of the affidavit were sworn to be true. However, each day in a court room, witnesses swear to the truth of their testimony without any written formality. As was stated in Omichund (Omychund) v. Barker (1744), Willes 538, “a witness may be sworn in the form which he expressly or impliedly declares to be binding upon his conscience.”
[ 31 ] In the case at bar, the officer stated that he had authored the affidavit which bore his name and he had incorporated evidence into that document which he personally believed to be true. His intention was to present the signed affidavit to the commissioner and when he presented the application which included his unsigned affidavit, he swore to the truth of the entire package that he had assembled. I accept the officer’s testimony in this regard. He impressed me as an honest witness who, to use the vernacular, had simply messed up that day. I find that the officer was acting in good faith, was not being devious and that his errors were genuine.
[ 32 ] In addition, I am satisfied after a thorough reading of his affidavit, that the affiant was testifying in his affidavit to matters outside of his personal knowledge but that he personally believed to be true based on his gathering and assessment of the evidence that he had been instructed to assemble. In paragraph 18 of his affidavit he states:
I believe the facts in this Affidavit are true. Where information is stated to have been received by me from other peace officers, I believe such information to be true, because the officers giving, receiving or relaying the information were acting in the execution of their duties as peace officers and as such are under a legal and moral obligation to relate only the truth. Where I rely on a report prepared by a police officer, I believe it to be true, for the same reason, and I adopt the information found therein as part of my belief, subject to any qualifications I make.
[ 33 ] At paragraph 19 he states:
As detailed in this affidavit, I have reviewed officer’s notes, surveillance reports, and have spoken to officers involved in the investigation. I have also read confidential Informant reports and spoken to the confidential informant handlers…I have also accessed police computer information systems. I believe all the information contained herein to be true and accurate.
[ 34 ] At paragraphs 20 and 21 of his affidavit, he reminds himself of his obligations to the court as follows:
I understand that this is an ex parte application and that I am obligated to provide full, frank and fair disclosure of the information available to me…
While I have summarized some of the information I read from reports and officers’ notes, I believe there is sufficient information in this affidavit to support the requested Authorization and Orders I am seeking. I am also aware of my obligation to provide full, frank and fair disclosure of information relating to the issuance of the requested Authorization and Orders and I have done so. Where information contained in this affidavit refers to an investigating officer, I have read the documentation (notes or reports prepared by that officer) that confirms the officer’s information and in some cases I have contacted the officer personally to confirm the information I have summarized. The lead investigator, Sergeant Todd Stevenson and undercover officer Pat McCready have read this document and both have confirmed its accuracy.
[ 35 ] Further, the officer incorporated into his affidavit as appendices, the back-up notes of the officers whose observations and experiences during the investigation were being relied upon. A cross-check of the information contained in the affidavit with the contents of the attached 12 appendices and 28 sub-appendices (an exercise which I have performed) demonstrates a reliable and well-documented presentation of the officer’s affidavit evidence. Accordingly, I have concluded that Knisely’s sins of omission that day were purely mechanical in nature. I have also concluded that the evidence he presented to the authorizing justice was sworn and trustworthy.
[ 36 ] The commissioner’s omissions were equally innocent. She had been confronted with a volume of paper. It was not necessary for her to inspect each document although if she had done so, she would have been less likely to have made the errors I have described. However, her function was merely to administer an oath to the officer not to familiarize herself with the contents of the materials. Although her evidence was sketchy and at times contradictory, I attribute this to the fact that she has no clear recollection of many details concerning what occurred that day, which is understandable given the passage of time and the lack of anything that would distinguish this event from the many other similar occasions when she was asked to swear an affidavit. However, I am satisfied that she was acting in good faith and conscientiously administered an oath to the officer as she had done on many occasions prior to this one. She had the officer swear that what he was presenting to her was truthful. Because she did not identify and isolate the affidavit from the remaining documents, she failed to note that the officer had not signed his affidavit. Nevertheless, I am satisfied that Mrs. Wright procured a Bible and administered an oath to the officer in her usual way that ensured that his conscience was bound to the truth of all of the materials he was presenting to her.
DETAILS OF THE INVESTIGATION:
[ 37 ] This investigation called “Project Takeout” was commenced in September 2009 after a confidential informant told police that Kenneth Wu, the owner of a restaurant in St. Catharines, was trafficking in cocaine and heroine. Police investigated the allegation by sending into the restaurant an undercover officer who was successful in purchasing cocaine, hashish and marihuana from Wu on eight separate occasions. On three of the five occasions when cocaine was involved, Dixon was identified as the supplier to Wu.
[ 38 ] According to paragraph 6 of Knisely’s affidavit, Dixon had been previously identified by “Project Manchester,” which was an investigation conducted by the Biker Enforcement Unit of the OPP (BEU) as a trafficker of cocaine and as an importer of the product from Columbia. The investigation commenced in January 2009 and concluded in December 2009.
[ 39 ] Dixon’s counsel contended that Dixon was the target of several judicial orders under Project Manchester, one of which being a production order in connection with a cellular telephone (905-334-7109) and the other a tracking warrant that was effective to September 30, 2009 and was extended to November 28, 2009.
[ 40 ] However, paragraph. 6 of Knisely’s affidavit partially disputes this allegation. Knisely’s uncontradicted evidence indicates that Dixon was never the target of Project Manchester and was not one of those arrested when that project concluded. In addition, when Project Takeout was commenced, Project Manchester had concluded.
[ 41 ] Further, the Crown submits that Project Manchester involved different accused and different offences that did not include importing or exporting drugs, nor did it involve Wu or his relationship with Dixon. This submission was not contested.
[ 42 ] Dixon’s first appearance in Project Takeout was on December 3, 2009 when he was observed delivering a white plastic bag to Wu. This bag was ultimately determined to contain one ounce of cocaine which was sold to the undercover officer for $1,500. This was the officer’s sixth contact with Wu. It was during this transaction that Wu indicated to the undercover officer that he was importing and exporting drugs to the United States in shipments worth one-half million dollars.
[ 43 ] At a subsequent transaction on December 9, 2009 between Wu and the undercover officer, Wu indicated that he was selling a kilogram of cocaine every two or three days and it was not his main business. His main business he claimed was transporting ecstasy and weed into the United States and bringing cocaine back into Canada. On this occasion, the undercover officer bought one ounce of what was represented to be pure MDMA (ecstasy) and was given a sample of marihuana. Test results confirmed the identity of the substances.
[ 44 ] Following these events, an order was made by Justice Lacavera to intercept the conversations of Wu on December 10, 2009. The following day, on December 11, Justice Lacavera also ordered 2-Dialed-Number Recorder and Production orders for telephone records relating to Wu.
[ 45 ] On December 11, 2009, Dixon was observed to arrive at Wu’s restaurant for a seven minute visit before Wu sent a text to the undercover officer that his drugs were ready. Wu sold the undercover officer one ounce of cocaine shortly after.
[ 46 ] On December 17, Wu sold the undercover officer one pound of marihuana and on December 21, he sold 18 grams of cocaine to the officer.
[ 47 ] On December 23, 2009, a Tracking Warrant and a General Warrant for a motor vehicle operated by Wu was ordered by Justice Lacavera.
[ 48 ] On January 13, 2010, Wu sold one ounce of cannabis resin and two ounces of cocaine to the undercover officer and Dixon was identified as Wu’s supplier.
[ 49 ] On January 27, 2010, Wu sold two ounces of cocaine to the undercover officer.
[ 50 ] In a subsequent discussion on January 13, 2010, Wu indicated to the undercover officer that he knew people who were sending 40 to 50 pounds of marihuana at a time to the United States.
[ 51 ] Knisely refers in paragraphs 36 – 38 of his affidavit to details of Dixon’s surveillance conducted by the BEU during the months of August and September that confirmed his association with known members of Hells Angels Hamilton Chapter. In addition, he had been observed attending Wu’s restaurant in St. Catharines 27 times between August 6, 2009 and November 1, 2009.
[ 52 ] Physical surveillance of Dixon had also taken place on February 3, 4, 8 and 9, 2009. On February 9, 2009, Dixon left Canada on Air Canada Flight 962 for Bogota, Columbia with a scheduled return of February 17, Flight AC 963. His travel history had been previously requested of the Canadian Border Service Agency on May 19, 2009 and it indicated according to Knisely’s affidavit at paragraph 72, that between April 18, 2007 and November 20, 2010, Dixon had travelled to Columbia on eight separate occasions, to Mexico on four occasions and to the Netherlands once. An earlier report dated June 1, 2007, referred to in paragraph 74 of Knisely’s affidavit, indicated that on this date Dixon had returned from a trip to Columbia and cocaine residue was detected on his toothbrush, cellular telephone and camera. The border officer who interrogated him noted that Dixon’s behaviour was suspicious. The officer also noted that Dixon had made several trips to Columbia, Venezuela and Peru since 2004.
[ 53 ] In his affidavit in support of the application for electronic surveillance, Knisely set out in paragraphs 9, 10 and 11 the limited success of the investigation and its objectives in the following terms:
The investigation has been unable to identify the source of the supply of cocaine for Dixon and Wu, the network of associates involved in such supply or importation, and the size and scope and the details of the importation and distribution scene. Nor has the investigative team been able to infiltrate the cocaine supply network. The investigation to date has also been unable to identify the scope of the financial gain derived by this illicit drug activity or the identity of any assets purchased.
The use of undercover police operators and other traditional investigative techniques has been unsuccessful in gathering evidence to identify, dismantle, arrest and successfully prosecute the members of this drug supply and distribution network. No opportunity has presented itself for the undercover officer to penetrate the network beyond direct purchases from Wu.
The investigation into this matter has been extensive; however I believe, for reasons contained in this affidavit that it is now beyond the scope of a conventional or traditional investigation. I am seeking an Authorization to Intercept Private Communications and related orders in order to assist the investigators in identifying the persons responsible for importing and supplying the cocaine, the details of the importation and distribution scheme, including dates and locations and methods employed for importing it, and to establish the respective roles of the persons involved and those presently unknown, and to secure the best evidence to successfully prosecute and disrupt the drug activities of Wu and Dixon and their presently unknown associates.
[ 54 ] Knisely’s affidavit commencing at paragraph 75 addresses the concept of investigative necessity and sets out in detail the investigative steps that had preceded the application for electronic surveillance.
[ 55 ] The affidavit refers to the fact that undercover operations had been able to penetrate the drug distribution methods of Wu but this investigative technique could only go so far. After obtaining proof of drug sales between Wu and the undercover officer, the next step could have been an attempt at a “buy past” to get to the supplier. For reasons which were well explained in his affidavit, investigators rejected the idea concluding that such an attempt could have jeopardized the investigation and put the undercover officer at risk. It is not proper for this court to second guess this decision.
[ 56 ] A total of four confidential informants had supplied information to the investigation. However, none of the informants were prepared to testify for fear of their safety and no other informants had been identified.
[ 57 ] Although physical surveillance had been extensively relied upon and had produced significant evidence, in the opinion of the officer, it failed to confirm sufficient detail to support a successful prosecution of Wu and Dixon. Surveillance would not provide evidence of what was discussed by Wu and Dixon, nor would it provide details of the importation plans or the identity of unknown associates involved in the importation and trafficking schemes that became the enlarged target of the investigation.
[ 58 ] In paragraph 84, the officer stated that he did not have reasonable grounds to believe that drugs or the proceeds of crime were at any particular place that was identified in the investigation. That being the case, Knisely did not have the grounds to a request a search warrant.
[ 59 ] In paragraph 85, Knisely states that the Tracking Warrant that had been obtained with respect to the vehicle used by Wu had not assisted investigators in identifying Wu’s source of illegal narcotics beyond Dixon. Similarly, the Tracking Warrant that had been obtained earlier with respect to Dixon’s vehicle had not assisted investigators to identify his source of drugs.
[ 60 ] Knisely deals in paragraph 90 with the fact that Number Recorder Warrants were obtained in relation to the cellular phones of Wu which along with surveillance, identified Dixon and others as associates of Wu. However, the evidence obtained could not in the opinion of the officer, provide sufficient proof to support a conviction because the number recorder alone could not provide information as to who made the call or the nature of the conversations.
GOVERNING LEGAL PRINCIPLES:
[ 61 ] In R. v. Araujo, 2000 SCC 65, the Supreme Court of Canada articulated principles of law applicable to issues similar to those raised in the case at bar.
[ 70 ] In R. v. Garofoli, [1990] 2 S.C.R. 1421, the Court stated:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.
CONCLUSION:
[ 81 ] For the foregoing reasons, I am satisfied that the authorizations satisfied the statutory prerequisites of investigative necessity and reasonable and probable grounds and therefore the motions to exclude the wiretap evidence must be and are hereby dismissed.
Taliano J.
Released: January 6, 2012