COURT FILE NO.: CR12-9000651 & CR12-9000652
DATE: 20121207
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JEM DURBAN
Defendant (Applicant)
Jason Mitschele, for the Crown (Responding Party)
Jennifer Penman, for the Applicant
HEARD: October 3, 4 and 9, 2012
MOLLOY J.:
REASONS FOR DECISION
A. INTRODUCTION
[1] Jem Durban is charged with four offences related to his alleged involvement in importing heroin into Canada from Pakistan in May, 2009. He was on bail for other charges at the time and is also charged with breaching his recognizance. The Crown’s case is entirely dependent upon telephone conversations intercepted as a result of an authorization issued by Code J. of this Court on September 3, 2010 (as amended and re-issued on September 9, 2010). That authorization was in turn based on an authorization granted by McMahon J. of this Court on April 22. Both authorizations were issued in relation to a wholly separate police investigation of a conspiracy to smuggle drugs through Lester B. Pearson Airport in Toronto, the principal target of which was an airport employee named Joe Lee.
[2] The First Authorization (April 22, 2009) is based largely on information from a confidential informer and authorizes the interception of telephones associated to Joe Lee. The Second Authorization is based on the same information as the first and also on information received from intercepted calls and related surveillance after April 22, 2009. Mr. Durban is not mentioned in the Information to Obtain (“ITO”) filed on the application for the First Authorization. However, some calls between him and Mr. Lee were intercepted as a result of the First Authorization and those calls and related surveillance led to his being named as a “known person” in the ITO for the Second Authorization. The charges now before the court were laid based on information obtained from interceptions of Mr. Durban’s telephone calls pursuant to the Second Authorization. They are wholly unrelated to Joe Lee or the conspiracy that was involved in the police investigation in which both authorizations were issued.
[3] Mr. Durban applied at the outset of trial to exclude the intercepted communications on the grounds that: (1) the First Authorization was improperly issued and all communications from Mr. Durban should therefore be excised from the ITO filed in support of the Second Authorization; and, (2) in the alternative, the Second Authorization was improperly issued as against Mr. Durban and resulted in the breach of his s. 8 Charter rights. At the conclusion of the argument on October 4, 2012, I reserved my decision. The next day, October 5, 2012, the Ontario Court of Appeal released its decision in R. v. Mahal.[^1] The Crown, quite rightly, and on notice to the defence, drew the case to my attention. I set a further date for argument to address the impact of that decision on the issue before me. Following that argument on October 9, 2012, I ruled that I considered Mahal to be determinative, that the interception of Mr. Durban’s telephone calls was constitutionally valid, and that the wiretap evidence was therefore admissible.
[4] Essentially, I have concluded that: (1) the first authorization was properly issued and the communications between Mr. Lee and Mr. Durban were validly intercepted; and (2) since the second authorization was validly issued as against Mr. Lee, and Mr. Durban was properly named as a “known person”, it follows from Mahal that all of Mr. Durban’s communications could be intercepted, not just his communications with Mr. Lee. My reasons for that decision follow.
B. THE FIRST AUTHORIZATION
The Test to be Applied
[5] The test to be applied by a judge reviewing the validity of a wiretap authorization is well settled. I must consider the material filed in support of the authorization, as amended by me to correct errors, and determine whether on the basis of the amplified record the authorizing judge could have granted the authorization. The test is not whether I would grant the authorization in those circumstances, but whether there was a basis upon which the authorizing judge could have been satisfied that the test for issuance had been met.[^2]
[6] Counsel agree on the general test to be applied by a judge considering an application for authorization to intercept private communications. The Criminal Code provides that an authorization may be granted if two tests are met: (1) it would be in the best interest of the administration of justice to do so; and (2) 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.[^3]
[7] In order for the first part of that test to pass muster under s. 8 of the Charter, it has been interpreted as importing the same legal requirements as for a search warrant – i.e. there must be reasonable and probable grounds for believing that a specified crime has been or is being committed and that the interception of private communications will afford evidence of the crime.[^4]
[8] There is no issue with respect to how that test applies in respect of the First Authorization. However, counsel disagree on whether the same test must be applied to intercept all of Mr. Durban’s communications under the Second Authorization (as urged by the defence), or whether a lower standard applies (as urged by the Crown). Since this distinction does not affect the analysis under the First Authorization, I will return to it under the section entitled “The Second Authorization” below.
Standing
[9] Although not named as a target, Mr. Durban’s private communications were intercepted as a result of the First Authorization. The Crown concedes that he therefore has standing to challenge the validity of the First Authorization, even though he was not personally named in it.[^5]
The Confidential Informant
[10] The First Authorization was largely based on information provided to the police from a confidential source. It is necessary to be particularly vigilant in relying upon tips from confidential informants to authorize conduct that would otherwise breach the privacy rights of individuals. In R. v. Debot, the Supreme Court of Canada held that the existence of reasonable and probable grounds must be assessed in the totality of the circumstances, guided by three factors, as follows:
In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Second, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.
[11] I think of this test as the Four C’s – Compelling, Credible, and Corroborated, with weaknesses in some areas Compensated for by strengths in another. In my view, the application of the Four C’s in this case makes it reasonable to rely on the information of the confidential informant.
[12] The Confidential Informant (“CI”) told police that employees working at Pearson Airport in Toronto were involved in facilitating the export of ecstasy pills to Miami, Houston and Atlanta and the import of cocaine into Canada from the Caribbean in passenger luggage. The CI identified two of the employees involved as Joe Lee (who was said to be employed by US Airways) and an individual known as “Mo” (who was said to be employed by Continental Airlines). The CI said there was more than one method of moving the drugs using passenger luggage and getting the luggage past security. According to the CI, Joe Lee had numerous couriers and was shipping drugs to the US every two weeks.
[13] The CI gave specific information about a planned shipment which was to take place on Saturday, January 23, 2010, during Lee’s work shift at the airport. The courier was to be a man named Roderick John. Joe Lee would be meeting with the courier in a washroom or in the secure customs hall for a hand-off of luggage, or by switching the baggage tag from the courier’s checked baggage onto a secondary bag exchanged for the original checked bag.
[14] The CI provided police with a cell phone number for Roderick John and three cell phone numbers for Joe Lee.
Credible
[15] There is very little information as to the credibility of the CI. The original ITO before the authorizing judge contained an Appendix B which included background information as to the CI. However, that appendix was excised from the material before me to protect the identity of the informant. Defence counsel takes no issue with the excision, nor do I. However, it means that I must assess the credibility and reliability of the CI without access to that information. In the information that has been disclosed, it appears that this CI had not been used by the police before and has no proven track record of reliability. There is no reference to any criminal record check and no disclosure of the nature of the CI’s connection to Joe Lee or Mo or the source of the CI’s information. The only indicator of credibility set out in the ITO is that the CI’s motivation in approaching police was financial gain, and that the payment is result-driven. Therefore, the CI will only profit if the information provided is accurate and useful to the police. This is some indication of credibility, but not a very strong one.
Compelling
[16] The CI provided information that was specific and tangible, including corrupt employees involved at the airport, the destination airports to which drugs are being sent, the identity of one of the couriers, and contact information for two of the individuals involved. In particular, the details provided as to an upcoming transaction were extremely specific and included the two parties involved, the date, and the general method of accomplishing the crime. The type of information provided went far beyond what a bystander or general member of the public could be expected to know. I find the information to be very compelling.
Corroborated
[17] Police were able to corroborate a substantial amount of the information provided by the CI. Roderick John was identified. On January 23, 2010, while a police surveillance team watched, Roderick John checked into a West Jet flight at Pearson airport, bound for Miami. He was carrying two pieces of carry-on size luggage and checked both of them, to which luggage tags were affixed. He made his way to the United States Customs Hall and Duty Free store, where he met up with Joe Lee. He then proceeded to the “checked luggage belt,” where he placed only one bag on the belt. He carried the other one on board. It appeared to police from the surveillance camera footage that the bag he carried on board no longer had a checked luggage tag on it. The affiant in the ITO stated his belief that John (the courier) had handed a checked luggage tag to Lee (the inside man) and that Lee affixed the tag to a piece of luggage containing ecstasy pills, which he then managed to have placed in the storage hold of the aircraft. When the flight arrived in Miami, one of the first bags unloaded did not have a luggage tag. It was searched and was found to contain 28.57 pounds (42,015 tablets) of ecstasy. The bag was placed on the carousel with the other luggage from the flight, but nobody picked it up.
[18] Although something seems to have gone awry with this particular shipment, there is substantial corroboration for the information provided by the CI. The CI correctly predicted: the date of the shipment; that it would involve Roderick John as the courier and Joe Lee as the inside contact; that it would be a flight to Miami; that the substance smuggled would be ecstasy; that Joe Lee would meet up with Roderick John inside the secure area of the airport after he had obtained checked luggage tags; and, that the drugs would be smuggled inside passenger luggage.
[19] As a result of the information provided by the CI, Toronto police conducted surveillance on Joe Lee. They saw him at numerous times meeting with people in situations police considered to be suspicious. One of the people Joe Lee met with was a woman named Stacey-Ann Fraser. She was placed on a “Travel Look-Out,” a notification system that would alert American and Canadian border agencies if she were to travel internationally.
[20] On March 19, 2010, Stacey-Ann Fraser attended Terminal 1 at Toronto’s Pearson Airport for a flight to Houston, Texas. When she attended at the US Customs preclearance check point, their computer system showed the travel look-out. Toronto authorities were immediately notified.
[21] Ms Fraser had two pieces of luggage. She told US Customs that she was planning to check only one of them. They searched both bags but found nothing suspicious. However, they continued watching her as she checked in at Air Canada. After she had completed that process, Air Canada advised US Customs that Ms Fraser had checked two pieces of luggage, and had paid an additional $30.00 fee to do so. US Customs therefore removed both of Ms Fraser’s bags from the aircraft and searched them. One of those bags contained 60,000 tablets of what was believed to be ecstasy.[^6] Ms Fraser was removed from the aircraft and arrested.
[22] Toronto police reviewed the Pearson Airport security camera footage. They watched video of Ms Fraser checking her luggage at the Air Canada check in counter and then walking back and forth, talking on her cell phone. Meanwhile, Joe Lee entered Terminal 1 through a public entrance, and left a short time later through that same entrance. After that, Ms Fraser entered the US Customs Hall with two pieces of luggage. She placed only one on the conveyor belt to go onto the flight. She kept the other bag as a carry-on. Then, other footage showed Joe Lee using his employee security pass to access a restricted area of the terminal through a secure employee entrance. He was carrying a backpack. His route took him into the baggage processing facility. He then exited through the same route, but without the backpack.
[23] Although information about this particular transaction was not given to the police by the CI, it does provide further corroboration of material aspects of information he did provide and is striking in its similarity to the matter involving Roderick John, including: the courier checking two bags, but only putting one on the conveyor belt; passenger luggage that contained ecstasy getting onboard the aircraft; the involvement of Joe Lee; the destination of Houston, being one of the cities the CI said was involved.
Compensation for Weaknesses
[24] In my view, the information provided by the CI was compelling and corroborated in significant respects. Although there was little information as to the credibility of the CI, this relative weakness is amply compensated for by compelling nature of the information and the strength of the evidence as to corroboration.
First Part of the Test: Substantive Grounds
[25] In addition to the information from the CI, the ITO set out considerable surveillance evidence and information from Production Orders relating to cell phone records, pointing to Joe Lee’s involvement in surreptitious and suspicious conduct.
[26] In my view, there was ample evidence before the authorizing judge from which he could have concluded that there were reasonable and probable grounds to believe that Joe Lee was involved in drug smuggling out of Toronto Pearson Airport. Further, in light of the information obtained from the Production Orders and the observations of Joe Lee and the couriers, there was good reason to believe that Joe Lee was discussing the details of his crimes with others on the phone and that intercepting his phone calls would afford evidence of those offences. Accordingly, I find that the first part of the test for issuance of the Authorization has been met.
Second Part of the Test: Investigative Necessity
[27] The police had already utilized multiple methods of investigation. They had obtained and reviewed security camera footage from Toronto Pearson Airport, obtained Production Orders for disclosure of cell phone records, and conducted considerable physical surveillance. A “Dialed Number Recorder Warrant” was noted in the ITO to be helpful, but would reveal only the numbers called and nothing about what was discussed. Physical surveillance had the same draw back – certain observations could be made, but nothing could be learned about what was actually discussed. Further, there were already indications that Mr. Lee was aware of surveillance, or at least was beginning to take counter-surveillance steps. Placement of an undercover officer within the criminal organization was ruled out as impossible given the international scope of the conspiracy, the tight-knit nature of the corrupt employees involved, and their connections to cohorts in other countries.
[28] Further, the scope of the investigation and what the police wanted to achieve must be taken into account. The police were interested in investigating beyond the role of Joe Lee. They wanted to know who his suppliers were and who they were dealing with internationally. In other words they wanted to go several rungs up the ladder past Joe Lee. That type of information could not practically be obtained using only traditional police methods such as physical or video surveillance.
[29] It was also important for the police to find out ahead of time when shipments were going to be made. That kind of planning could only be obtained by intercepting private communications.
[30] Finally, the ITO points out that there is an element of urgency as the investigation to that point had revealed a threat to the security systems of major international and domestic airlines. The police wanted to know the extent of that problem, who was implicated, and whether it involved only drugs, or if there were other things bypassing security checks through the same method.
[31] In my opinion, the authorizing judge could easily have concluded that the investigative necessity test had been met in every respect: other investigative procedures had been tried and were not adequate; other alternative investigative procedures were unlikely to succeed; and there was an urgency that would make it impractical to carry out the investigation of the offence without the ability to intercept private communications.
Validity of First Authorization
[32] Therefore, I find that the First Authorization was validly issued.
D THE SECOND AUTHORIZATION
Investigative Necessity
[33] I can deal in short order with the investigative necessity test for the Second Authorization. The same circumstances existed as was the case at the time of the application for the First Authorization, except that there was even greater evidence of the offences and of the subjects engaging in covert or counter-surveillance type action. Therefore, I find that the requirement of showing investigative necessity is met, for the same reasons as I have already stated in respect of the First Authorization.
The Test to be Applied for Reasonable Grounds
[34] As a result of information obtained from intercepted calls after the First Authorization, which was set out in the ITO for the Second Authorization, an even stronger case existed against Joe Lee. The applicant takes no issue with respect to the validity of the Second Authorization, as against Joe Lee. It follows that all telephone conversations between Joe Lee and Mr. Durban involving a telephone associated with Mr. Lee could be validly intercepted. The issue raised by the applicant, however, is whether there was a basis for intercepting Mr. Durban’s telephone line, such that his private communications with individuals other than Mr. Lee would also be caught.
[35] Ms Penman, for the applicant, argued that there must be a distinction between the test to be applied in intercepting the calls of a person characterized as a primary target and the test to be applied in respect of a secondary person who is named only because his communications “might” provide evidence of the crimes being committed by the primary target or targets. She submitted that before all of Mr. Durban’s communications could be intercepted, the Crown would have to meet the heavier burden of establishing reasonable and probable grounds for believing such interceptions will provide evidence of the crime, as opposed to the lower test that such intercepts might provide such evidence.
[36] Section 185 (1) of the Criminal Code sets out the form and content required for an application for a wiretap authorization, as follows:
185(1) 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 or a judge as defined in section 552 and shall be signed by the Attorney General of the province in which the application is made or the Minister of Public Safety and Emergency Preparedness or an agent specially designated in writing for the purposes of this section by
(a) the Minister personally or the Deputy Minister of Public Safety and Emergency Preparedness personally, if the offence under investigation is one in respect of which proceedings, if any, may be instituted at the instance of the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or
(b) the Attorney General of a province personally or the Deputy Attorney General of a province personally, in any other case,
and shall be accompanied by an affidavit, which may be sworn on the information and belief of a peace officer or public officer deposing to the following matters:
(c) the facts relied on 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.
[Emphasis added]
[37] In her original argument, prior to the release of the Court of Appeal decision in Mahal, Ms Penman conceded that if the First Authorization was valid, the Second Authorization was properly issued as against Mr. Lee and that it was appropriate to name Mr. Durban in the affidavit as a “known person whose private communications there are reasonable grounds to believe may assist the investigation of the offence,” within the meaning of s. 185(1)(3) of the Code. Ms Penman submitted, however, that there is a distinction between those people who are required to be named in the affidavit and those who are actually targeted in the investigation and named in the authorization itself. She argued that the mandatory inclusion in the affidavit was for the protection of the person so named and was a low threshold, requiring only that their private communications “may assist the investigation,” whereas a person could not be named in the authorization itself unless there were reasonable and probable grounds to believe the interception “will” provide evidence of the offence. Ms Penman relied in this regard on the decision of Ducharme J. of this Court in R. v. Chung.[^7]
[38] I agree that the decision in Chung would support Ms Penman’s argument, as indeed would other decisions of this Court. Although I believe that line of authority has now been overruled by the Court of Appeal’s decision in Mahal, it is useful to review the older case law in order to provide context for the applicant’s argument.
[39] In Chung, Ducharme J. reviewed the rationale for the mandatory requirement of naming known persons in the affidavit if intercepting their communications “might” assist in the investigation. He held that the purpose of this requirement is the protection of privacy, noting that the failure of the police to identify a known person falling into this category would mean that any incriminating interception of that person would be unlawful and could be excluded as evidence against him in a subsequent trial.[^8] Ducharme J. held, at para. 20:
As mentioned above, the principal purpose of Part VI of the Code is the protection of individual privacy interests. Viewed from this perspective, the naming of known persons can be understood as a means by which the intrusion into privacy can be delineated, defined and, ultimately, limited. Section 178.12(1)(e) of the Code [now s. 185(1)(e)] requires a level of transparency from the deponent of the application which requires that the police name not only their direct targets, but also others likely to be caught up by the requested interceptions. Indeed, if I am correct that the standard for known persons in s. 185(1)(e) remains only “may assist the investigation of the offence,” this requires the police to name more persons in the application than can properly be named in the authorization itself. While, at first blush this might seem counter-intuitive, it is, in fact, consistent with the purpose of protecting privacy as it will provide the issuing judge with a much clearer picture of the likely impact of the authorization and the degree of intrusiveness of the requested interceptions. From the perspective of protecting privacy, such an approach is vastly superior to a regime which requires that only targets be named with all other persons likely to be affected remaining anonymous with the authorization of the interception of their communications falling to a generic basket clause.
[Emphasis added]
[40] Ducharme J. held that notwithstanding this low threshold for naming a known person in the affidavit, such a person could only be named in the authorization itself as a person whose communications are to be intercepted if the more stringent test required under s. 8 of the Charter is met. He held, at para 25:
The parties are correct that the test for naming “knowns” in the authorization under s. 186(4)(c) is that the person is someone whose private communications would assist in the investigation. This is required by s. 8 of the Charter as interpreted in Hunter et al. v. Southam Inc. (1984), 1984 CanLII 33 (SCC), 14 C.C.C. (3d) 97 (S.C.C.) and its progeny. However, it does not follow that the standard of “may assist the investigation of the offence” set out in s. 185(1)(e) of the Code offends s. 8 of the Charter. This is because that standard is not the one used to authorize the electronic surveillance. Rather, it is merely the standard that requires the police to name the known person in their application. This distinction was recognized by Charron J.A. in R. v. Shayesteh, (1996), 1996 CanLII 882 (ON CA), 111 C.C.C. (3d) 225 (Ont. C.A.) at 245 where she rejected the notion that the officer making the application must subjectively believe that the interceptions would assist in the investigation:
This is not so with respect to an application for a wiretap authorization. It is the judicial officer who is authorized to act upon the grounds and grant the authorization, not the applicant. While the officer's belief may be a relevant factor for the authorizing justice to consider, it is in no way determinative of the issue.
[Emphasis in the original]
[41] In addition to the Court of Appeal decision in Shayesteh, Ducharme J. relied on the analysis of Dambrot J. of this Court in a paper he delivered at an educational seminar of the Supreme Court of British Columbia, in which he stated:[^9]
An unusual feature of Part VI is that it requires the affiant to name in the affidavit not merely the persons whose private communications are proposed to be intercepted, but rather all persons whose private communications, if intercepted, may reasonably be expected to assist the investigation. [R. v. Shayesteh (1996), 1996 CanLII 882 (ON CA), 111 C.C.C. (3d) 225(Ont. C.A.)]. As a result, the affiant may properly include the names of family members or innocent persons connected to the targets of the investigation who would not otherwise be likely to find their way into the affidavit. In addition, the affidavit may contain descriptions of persons whose existence is known to the police, but whose names are not known. Note however that only persons, the interception of whose communications will assist the investigation, may be named in the authorization
[Emphasis in original]
[42] In R. v. Ahmad, Dawson J. of this Court reached the same conclusion as Ducharme J., holding as follows (at para 14):
Although s. 185(1)(c) requires the naming of anyone the interception of whose private communications “may” assist the investigation, the judicial authorization of a search or seizure will generally fail to meet the constitutional standards set by s. 8 of the Charter unless it is determined that such interception “would” assist the investigation: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145. This dichotomy has been the subject of comment in recent cases: R. v. Chung, 2008 CanLII 12705 (ON SC), [2008] O.J. No. 1113 (S.C.J.), per T. Ducharme J.; R. v. Beauchamp, [2008] O.J. No. 4919 (S.C.J.), per R. J. Smith J.
[43] However, that is not the approach taken by the Court of Appeal in Mahal. This issue was squarely raised in Mahal. Watt J.A. (writing the unanimous judgment of the Court) summarized that argument as follows (at paras. 57-59):
The appellant says that a distinction exists between the obligation to name a person in the supportive affidavit and the basis upon which a person may be named in an authorization.
The appellant acknowledges that s. 185(1)(e) of the Criminal Code enacts the standard for including persons as “knowns” in the supportive affidavit. That standard, the appellant admits, was met in this case because interception of the appellant’s private communications “may assist” in the investigation of named offences.
For a person to be named as a “target” in the authorization, however, the appellant says that the affidavit had to provide reasonable grounds for the belief that the interception of his private communications would afford evidence of the commission of a listed offence. …
[44] That is exactly the argument made by defence counsel before me, prior to the release of the Court of Appeal’s decision in Mahal. However, Court of Appeal clearly rejected the argument. Watt J.A. recognized that s. 8 of the Charter required the interpretation of the wiretap authorization provisions so as to import a requirement that there be reasonable and probable grounds for believing that the interception will afford evidence of the crime.[^10] He also recognized that the threshold for describing a person as a “known” in the supporting affidavit is a “modest one” requiring only reasonable and probable grounds that the interception “may assist the investigation” of an offence.[^11] However, he ruled that there is nothing in s. 186(1) that requires the probable cause requirement be met with respect to each “known” person whose private communications are subject to interception under the authorization.[^12] In coming to that conclusion, he specifically considered and rejected the very arguments that were made before me, ruling as follows:[^13]
The appellant invokes the decision in R. v. Chow, 2005 SCC 24, [2005] 1 S.C.R. 384, to support his submission that the standard for inclusion as a “known” described in Chesson has been modified to require that the interception of a “known’s” private communications “would assist” in the investigation, rather than “may assist”: see Chow, at para. 34.
I disagree. Chow did not overrule Chesson or purport to interpret the statutory “may assist” as if it read “would assist”. The point in Chow was that Chow was not connected to the investigation of the offences for which the authorization was granted, thus could not have been included in the order as a “known” because of an absence of evidence on the investigative assistance aspect of s. 185(1)(e).
The appellant appears to suggest that there is a difference between being a “known” for the purposes of the affidavit requirement in s. 185(1)(e) and a “known” for the purpose of inclusion in the authorization under s. 186(4)(c). Again, I do not agree.
The affidavit is the evidentiary foundation that must satisfy the requirements of s. 186(1) before an authorization may be granted. To accede to the appellant’s position would mean that an affidavit, fully compliant with the requirements of s. 185(1)(e), would not satisfy s. 186(1)(a). The illogic of the argument betrays its legitimacy
The dual standard proposed by the appellant would also contravene the principle expressed most clearly in connection with the investigative necessity requirement in s. 186(1)(b), that the requirement must be met with respect to the investigation as a whole, not in relation to individuals described as “knowns”. To accede to the appellant’s argument would be to require such an individualized showing for the probable cause condition in s. 186(1)(a). This makes no sense. The legislation does not warrant one interpretation for one condition precedent and a different interpretation for the other, when the requirements are linked together by the conjunctive “and”.
Section 186(4)(c) also fails to provide any support for the distinction created by the appellant.
I am satisfied that neither the provisions of Part VI nor the controlling jurisprudence support the creation of two classes of “known” persons in authorizations. The test for including any named person in the supportive affidavit and consequent authorization is a threshold described in Chesson. The distinction between “Principal Known Persons” and “Other Known Persons” may serve other useful purposes in an authorization, but neither the statute nor controlling jurisprudence requires or furnishes a legal basis for such a distinction.
[45] Because of the significance of the Mahal decision, I invited further argument from counsel. Counsel for the applicant accused submitted that I was not bound to apply the lower test discussed in Mahal, and that the analysis in Chung was still good law. I do not agree. Although the decision of Ducharme J. was not explicitly cited in the Mahal decision, it was referred to in the factums of counsel and in the argument. That analysis was clearly before the Court and was rejected. In any event, the precise argument raised before me was squarely at issue in Mahal and was squarely rejected. That decision is binding on me.
[46] Counsel also submitted that I should disregard Mahal on the basis that it is contrary to principles already established in decisions of the Supreme Court of Canada and to apply it would result in applying the law in a manner that contravenes s. 8 of the Charter. Again, I do not agree. The Court of Appeal in Mahal considered those very Supreme Court of Canada decisions cited by counsel, and also expressly considered the requirements of s. 8 of the Charter. The Court ruled that the test articulated in Mahal was consistent with those cases and with those Charter principles. Again, that decision is binding on me.
[47] In Mahal, the Court of Appeal ruled that the same test applies under s. 185(1)(e) for naming a person as a “known” person in the supporting affidavit, and under s. 186(4)(c) for naming a person as “known” in the authorization itself. For clarity, it is useful to consider these two sections together.
[48] Section 185(1)(e) provides that an affidavit shall be filed deposing to:
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 . . .
[49] Section 186(4)(c) provides that an authorization shall:
state the identity of the persons, if known, whose private communications are to be intercepted . . .
[50] Accordingly, I find that the test to be applied with respect to intercepting the private communications of Mr. Durban is whether the ITO discloses reasonable and probable grounds to believe that such interceptions “may assist the investigation” of the offence. Further, on review, it is not my task to determine if that test is met, but rather to decide, on the basis of the amended application record, whether the authorizing judge could have been satisfied that this test was met.[^14]
Reasonable and Probable Grounds Generally
[51] There is no question that looked at on an overall basis, the ITO filed in support of the Second Authorization discloses evidence that crimes are being committed at that reasonable and probable grounds for believing that intercepting Mr. Lee’s private communications will afford evidence of those crimes, just as the interceptions under the First Authorization had already done. There is also no question that the police were aware of Mr. Durban. Dozens of his discussions with Mr. Lee had been intercepted already and surveillance teams had seen him meeting with Mr. Lee on a number of occasions. He was clearly a “known” in that sense. The only question, therefore, is whether there was a basis upon which the authorizing judge could have concluded that intercepting his communications “may assist the investigation.”
The Evidence Relating to Mr. Durban
[52] Mr. Durban was not a person known to the police at the time the First Authorization was issued. He subsequently came to the attention of the police because of intercepted telephone conversations between him and Mr. Lee.
[53] During the sixty-day duration of the First Authorization, there were 152 interceptions between Mr. Durban’s home phone (registered in his name at his home address) and various phones used by Mr. Lee. That does not necessarily mean that there were 152 separate telephone discussions, as sometimes there can be multiple “sessions” shown for the same phone call as different towers transmit the call. However, it can certainly be said that this is a significant level of communication over a two-month period. Nothing is discussed in any of these calls with respect to any offence involving Mr. Lee. For the most part, the calls merely arrange face to face meetings, or employ guarded language such that the meaning of the calls is not discernible.
[54] The ITO for the Second Authorization also provided information about meetings between Mr. Durban and Mr. Lee, as observed by surveillance teams.
(a) On May 25, 2010, Mr. Lee picked up Kamal Mohamed (his associate at the airport) and the two men went to Mr. Durban’s home and met with two other men in the driveway, one of whom matched Mr. Durban’s description.
(b) On May 26, 2010, Mr. Lee again went to Mr. Durban’s home and was inside the house for eleven minutes before departing. Later that same day, police intercepted a telephone discussion between Mr. Durban and Mr. Lee in which they discussed having missed each other and Mr. Durban told Mr. Lee he should have called first to give him a “heads up.”
(c) On June 8, 2010 Mr. Lee was seen meeting with Mr. Durban at a Chinese restaurant on Islington Avenue. Mr. Durban left first. After he left, and while Mr. Lee was still at the restaurant, Mr. Lee telephoned Mr. Durban. He told Mr. Durban not to talk to him on his cell phone and that he would call him again from a pay phone. Mr. Lee then said, “I got something to tell you… I didn’t like what I seen when you left.…you understand?” This can reasonably be interpreted as Mr. Lee being concerned that Mr. Durban was under surveillance. In fact, the surveillance team followed Mr. Lee when he left the restaurant. They saw him place calls from two different public pay phones.
(d) On June 9, 2010, Mr. Durban and Mr. Lee met at a Timothy’s coffee place. The ITO states that Mr. Lee was wearing a woman’s wig and sunglasses for this meeting. The defence objects to this characterization, as it is based on a surveillance report authored by Cst. Deborah Horwood who describes it as a “bob wig” based on information received from Cst. Vassell. The handwritten notes of Cst. Vassell refer only to a “wig,” but he may well have provided additional information over the radio to Cst. Harwood. In my view, it is a reasonable inference that a “bob wig” is a woman’s wig. However, since there is only one officer’s description of the wig, I am prepared to amend the Information so that it refers only to a “wig” instead of a “woman’s wig.”
(e) On June 11, 2010, Mr. Lee picked up Mr. Durban at a coffee shop and the two drove away in Mr. Durban’s car.
[55] There are two references in the ITO to alleged prior criminal conduct by Mr. Durban. At paragraph 101, the affiant reported that a criminal record check revealed Mr. Durban to have a conviction, but that since it was not drug-related, he would not be relying upon it as reasonable grounds against Mr. Durban. Later, at paragraph 105, the affiant reported that Mr. Durban was currently charged with importing 9 kg. of heroin into Canada from Pakistan, hidden inside the covers of a shipment of books. Officers of the Canada Border Services Agency at Toronto Pearson Airport discovered the heroin and conducted a controlled delivery investigation. The RCMP conducted surveillance of the person who was arranging to pick up the shipment from the airport. They followed him to a Tim Horton’s parking lot where he met up with Mr. Durban. Later, when the courier took actual possession of the shipment, he was arrested. He told the police that he was being paid $20,000 to deliver the goods to Mr. Durban. He took the police to the pre-arranged meeting place and pointed out Mr. Durban waiting in his car. Mr. Durban was arrested and charged. Those charges were still before the Court at the time of the application for the Second Authorization.
[56] I do not find these references to criminality to be misleading or unfair. The first reference to the criminal record makes it clear that it is not relevant and is not being taken into account. I am confident therefore that the issuing judge would not have paid any attention to it. The second reference is not misleading; it makes it very clear that this is not a conviction, but merely outstanding charges. However, the affiant does not merely state that there are charges pending, he provides a synopsis of the police evidence against Mr. Durban, which is fair. The fact that the underlying incident involved smuggling drugs through Pearson Airport has some relevance to the investigation involving Mr. Lee, and is some indication that there may be a connection between the two. However, by providing the particulars of the incident, the affiant has put the authorizing judge on notice that: this involved importing (not exporting); the drug involved was heroin (not ecstasy); the foreign country was Pakistan (not the United States or Jamaica); and there is no indication of Mr. Lee being involved in it in any way. I see no reason to excise these references from the ITO.
[57] The applicant objects to a number of references in the ITO in which the affiant states his “belief” as to certain matters, states his opinion, or draws inferences from the facts. There is no difficulty in an officer stating his belief or drawing inferences, provided it is clear from the affidavit that: what is stated is belief as opposed to evidence; the evidentiary basis for the conclusion is set out; and, the inference drawn is one that is reasonable on the evidence.[^15] For the most part, the statements of belief by the affiant in this ITO meet those criteria.
[58] There are, however, a few statements that I consider to be unreasonable or unsupported by the evidence and which require excision. The first such statement is in the opening paragraph dealing with Mr. Durban. The affiant officer stated:
. . . I believe Durban represents a significant role within the second half of Lee’s criminal network. That second half concerns the supply and/or distribution of the drugs into or out of the airport.
[59] While it is clear that this statement represents the affiant’s “belief,” and while I accept it is honestly held, there is no evidence whatsoever of Mr. Durban supplying drugs into the airport for the benefit of Mr. Lee’s criminal network, or anybody else’s criminal network for that matter. There is some evidence of Mr. Durban receiving illegal drugs shipped through the airport (i.e. the pending charges), but nothing that connects Mr. Lee, or any part of his network, to that matter. I do not consider this statement of belief to be a fair inference from the evidence and I will therefore excise this reference from the affidavit.
[60] At para 102 of the ITO, the affiant stated:
When dealing with Jem Durban, Lee usually arranged their meetings according to the established norms of preliminary telephone call setting up a face to face discussion in a public place, however on two separate occasions Lee has gone to Durban’s residence.
[Emphasis added]
[61] This paragraph is misleading. There were a total of five “meetings” referred to in the ITO – two at Mr. Durban’s home and three in public places. On one of the occasions at Mr. Durban’s home, Mr. Durban was not there. It is not fair in this limited sampling to say what is “usual” and what is a “norm.” It gives the impression that the two attendances at the house were an aberration from a whole pattern of behaviour of meeting in public, which is not fair given that there were only three known meetings in public. The paragraph adds nothing since the particulars of all five incidents are provided. Accordingly, I will excise paragraph 102.
[62] I have a similar concern with respect to paragraph 108 in which the affiant referred to the June 9th meeting as Lee “returning to the norm of meeting in public places with Jem Durban.” At that point, there had been one meeting at Mr. Durban’s home (on May 25th), one attempted meeting at Mr. Durban’s home (on May 26th), and one meeting at a Chinese restaurant (on June 8th). A second meeting at a coffee shop is hardly “returning to the norm.” I will excise the reference to the “norm.”
[63] I do not have the same concern with respect to the balance of that paragraph which states that Mr. Lee has been attempting to avoid police detection by keeping telephone conversations to a minimum, meeting face to face with Durban, ending the practice of attending Durban’s residence, using pay phones, disguising himself, and meeting in a moving vehicle. It is clear that this is the officer’s opinion and the facts upon which he bases that opinion are set out. His stated belief is a reasonable inference for him to have drawn from the evidence. The authorizing judge was free to agree or disagree with that conclusion, but he would not have been under any misapprehension as to the source of the conclusion.
[64] In paragraph 109, the affiant stated:
I believe that the extraordinary and bizarre efforts that Lee displayed while meeting and communicating with Durban stems from Lee’s fear of being detected by police while meeting with a man currently on charges for some of the same offences being committed by Lee. Because Lee continues these out of character, high risk, meetings with Durban, it suggests that Durban’s role in Lee’s network is very necessary and unavoidable.
[65] In my view, this is nothing but supposition. It is not a fair conclusion from the evidence and is not supported by the facts stated in the affidavit. I will excise this portion of the affidavit.
[66] None of the statements I would excise from the ITO are deliberate misrepresentations. They may not be fully supported by the evidence, but I see no indication of bad faith or deliberate falsehood. In my opinion, the appropriate step is to simply disregard the over-statements and consider whether, based on the amended record, there is still a basis for naming Mr. Durban as a known person in the affidavit.
Conclusion
[67] Based on the reasoning in Mahal, if Mr. Durban is a person who was required to be named in the affidavit as a “known” person in the affidavit, then he can equally be named in the authorization as a “known” person whose communications may be intercepted.
[68] The police were clearly aware of Mr. Durban and he was in that sense “known” to them. There was also evidence connecting him to Mr. Lee. There were extensive discussions between them on the phone. They met in circumstances in which it is reasonable to infer they were concerned about being seen. For example, Mr. Lee called Mr. Durban on a pay phone to discuss what would appear to be concerns about surveillance after Mr. Durban left their meeting at a Chinese restaurant. At another occasion when they met in public, Mr. Lee arrived wearing a disguise. In these circumstances, it is certainly arguable that the higher standard is not met. It may not be possible to say that there are reasonable and probable grounds to believe that intercepting his communications “would” yield evidence of the crime under investigation. However, that is not the test. The question is whether it can be said that intercepting his calls “may assist in the investigation.” As the Court of Appeal has stated, this is a “modest” test. In my view, it is met in this case. Given the interactions between Mr. Lee and Mr. Durban, and the number of calls between them based on Mr. Lee’s phone records, intercepting Mr. Durban’s other communications “might” easily assist the investigation. He “might” talk about his dealings with Mr. Lee to others, or he “might” speak with Mr. Lee in circumstances where Mr. Lee is using a public pay phone or some other phone not known to the police. It is reasonable to expect that intercepting such calls “might” assist the police in their investigation.
[69] Accordingly, in my opinion, the interception of Mr. Durban’s telephone calls under the Second Authorization was lawful. The evidence derived from those interceptions is admissible in evidence in this case.
MOLLOY J.
Released: December 7, 2012
COURT FILE NO.: CR12-9000651 & CR12-9000652
DATE: 20121207
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JEM DURBAN
Defendant (Applicant)
REASONS FOR DECISION
MOLLOY J.
Released: December 7, 2012
[^1]: R. v. Mahal, 2012 ONCA 673 [^2]: R. v. Garafoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 [^3]: Criminal Code, s. 186 [^4]: R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30; Mahal, supra note 1, at para 75. [^5]: R. v. Shayesteh, [2000] O.J. No. 1177 at para. 41 (C.A.); R. v. Chang (2003), 2003 CanLII 29135 (ON CA), 173 CCC (3d) 397, 9 CR (6th) 304, 170 OAC 37 (C.A.) at paras. 40-41 [^6]: After the issuance of the First Authorization, the tablets from Ms Fraser’s luggage were tested and were found to be BZP, which is a derivative of ecstasy, but not actually ecstasy. BZP is not a banned substance in Canada, but is illegal in the United States. The nature of the substance, however, has no material impact on the grounds for the First Authorization since it was the nature of the conduct of Joe Lee and this courier that was relied upon. [^7]: R. v. Chung (2008), 2008 CanLII 12705 (ON SC), 231 C.C.C. (3d) 484 (Ont.S.C.J.) [^8]: Chung at paras. 12-26; R. v. Chesson (2005), 2005 SCC 24, 195 C.C.C. (3d) 246 (S.C.C.) [^9]: Chung, at para. 25; Justice Michael R. Dambrot, “Applications for Orders Authorizing the Invasion of Privacy (Wiretapping, Video Surveillance and Related Investigative Techniques)” (Paper presented at the Supreme Court of British Columbia Educational Seminar, Penticton, British Columbia, May 27, 2004) at 6 [^10]: Mahal, supra note 2, at para. 68 [^11]: Ibid, para. 71. [^12]: Ibid, para. 78 [^13]: Ibid, paras. 84-90 [^14]: I note that my colleague MacDonnell J. reached a similar conclusion as to the binding nature of Mahal in these circumstances: see R. v. Ahmed, 2012 ONSC 6266 (S.C.J.) at paras. 31-33. [^15]: Criminal Code (Re), [1997] O.J. No. 4393 (Gen.Div.) at para. 8; R. v. Nugent (2005), 2005 CanLII 790 (ON CA), 193 C.C.C. (3d) 191 (Ont.C.A.)