ONTARIO

SUPERIOR COURT OF JUSTICE

Toronto Region

COURT FILE NO.: M331/13

DATE: 20140314

B E T W E E N:

JAMUAR SHARAT VIJAYA

S. Hutchison & S. Walker, for the applicant

Applicant

• and -

HER MAJESTY THE QUEEN

R. Hubbard & M. Asma, for the respondent

Respondent

HEARD: March 11, 2104

Nordheimer J.:

[1] Certain preliminary issues arise in this application, brought by the applicant pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, to quash search warrants that were obtained by the Toronto Police Service and pursuant to which they seized certain computers and hard drives, owned by the applicant, on which it is alleged child pornography is stored. There is disagreement over the regime that is applicable to the determination of this application that is brought in a situation where, as yet, no charges have been laid.

[2] The background facts are that, on October 10, 2013, officers of the Toronto Police Service attended at the home of the applicant and his wife located in the North York area of Toronto. They were responding to a report from the applicant’s wife that, while she had been copying material from the applicant’s computers, located in the family home, she came upon pictures and other items that she believed constituted child pornography. The applicant’s wife had been copying material from the applicant’s computers because she was in the process of leaving the applicant, as a result of a marital breakdown, and she wished to have copies of various family items stored on the computers, such as photographs of their children. All of this took place while the applicant was on holidays in another Province.

[3] When the police arrived at the residence, the applicant’s wife, along with a friend who was present and who had been assisting in the copying of the material, told the police what they had found on the computers and/or hard drives. They said that they had found pictures of naked teenaged (or younger) females along with stories and videos with sexually suggestive names. The applicant’s wife told the officers that she did not want the material in the home as she was concerned that their very young children might be exposed to it. As a consequence, the applicant’s wife asked the officers to remove the computers and hard drives from the home.

[4] The officers took possession of four computers and four external hard drives. The officers took these items to 32 Division where they were placed into two property lockers. Approximately three weeks later, on November 1, 2013, the police were granted two Criminal Code search warrants for these items – one for each of the property lockers.

[5] The two search warrants were granted by Ducharme J. of this court. The police chose to ask a judge of this court to grant the search warrants because the applicant is a lawyer. The police were aware of their obligation to protect the devices because of the possibility that there may be solicitor and client material on them. In furtherance of that concern, once the search warrants were granted, the police seized and sealed the devices so that they could not be examined until further order of the court. Approximately a month later, on December 10, 2013, the respondent brought an application to appoint an independent referee and independent forensic computer examiner to examine the devices in accordance with the dictates set out in Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209. That application has been held in abeyance while this application is addressed.

[6] The applicant seeks to cross-examine the affiant of the Information to Obtain, the sub-affiant (who is the lead investigator), the applicant’s wife and her friend. The applicant also seeks production of various pieces of material that are referred to by the affiant in the ITO. As an alternative to that relief, the applicant seeks to at least be able to examine the applicant’s wife and the friend.

[7] I believe that it is fair to say that the situation presented here is an unusual one. In the normal instance, regardless of the validity of the search, the police would have been able to review the devices and would have decided if any charges were to be laid. If charges were laid, then the applicant’s remedy regarding any alleged constitutional violation involving the search and seizure of the devices would have been determined by the judge presiding at his trial. While there may technically be a right to bring an earlier challenge to the search warrants even in the situation where charges have been laid, I understand the applicant to accept that any such effort would very likely be deferred to the trial judge for determination.

[8] Here, however, no charges have been laid. That circumstance arises because of another unusual aspect of this case and that is that the target of the investigation is a lawyer. Consequently, the police have not had access to the devices for the purpose of examining them and determining whether charges should be laid because the devices have been sealed pending the determination of the Lavallee application.

[9] The applicant takes the position that he is entitled to have the constitutional validity of the search determined prior to any application for access to the devices under the Lavallee principles. He asserts that the decision in Lavallee makes it clear that maximum protection is to be given to solicitor and client privilege and, therefore, there should be no examination of the devices undertaken pursuant to the principles in Lavallee until it is first determined that the devices were lawfully seized.

[10] As part of his challenge, the applicant says that he ought to be able to cross-examine the relevant witnesses as of right. The applicant submits that under a s. 24(1) challenge, he ought not to be restricted by the leave requirements set out in R. v. Garofoli, [1990] 2 S.C.R. 1241 and affirmed in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 mainly because, unlike the situation at a trial where the accused has had the benefit of full disclosure, the applicant here arrives at the hearing “empty handed”. Consequently, the applicant is not in possession of material that would permit him to demonstrate Garofoli grounds for obtaining leave to cross-examine. If the applicant’s position in that regard is not accepted, the applicant says that he should, at least, be given production of all material referred to or summarized in the ITO so that he can demonstrate why he should be allowed to cross-examine.

[11] The respondent does not suggest that it can pre-empt the applicant’s challenge to the seizure of the devices by insisting that the Lavallee process should proceed first so that a determination can be made whether charges are warranted. The respondent was very clear that it cannot prevent the applicant from bringing this application for relief under s. 24(1) of the Charter. However, the respondent submits that, if the applicant chooses to proceed with such an application, he must comply with the stricter tests set out in R. v. Wilson, 1983 35 (SCC), [1983] 2 S.C.R. 594 in order to obtain any relief and not the less stringent tests set out in Garofoli and Pires. The respondent moves from that starting point to assert that it is clear that the applicant cannot meet the stricter Wilson test and, consequently, the respondent submits that this application should be summarily dismissed.

[12] The respondent adds that it is part of the stricter Wilson regime that a much higher test must be met for any right to cross-examine relevant witnesses. The respondent also says that the applicant is not entitled to any disclosure of material from the ITO because this is a criminal proceeding. The Crown’s disclosure obligations are governed by R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326. Those disclosure obligations clearly arise only after charges are laid: Stinchcombe at p. 343.

A. Does the Wilson test apply?

[13] It may be obvious from the above that any resolution of these competing positions requires a rather fulsome consideration of the decision in Wilson.

[14] In Wilson, the police had obtained a wiretap authorization from a superior court judge. The wiretap authorization generated the essential evidence against the accused. The accused was tried, though, in the Provincial Court. The provincial court judge, at trial, ruled that the wiretap authorization had not been lawfully made and the case against the accused collapsed. The Crown appealed the decision arguing, in essence, that the provincial court judge had no jurisdiction to determine the validity of the wiretap authorization because it had been granted by a superior court judge. The Crown characterized the challenged to the wiretap authorization as a collateral attack on an order of a superior court. The Crown was successful on this point both in the Manitoba Court of Appeal and in the Supreme Court of Canada.

[15] Speaking for the majority in Wilson, McIntyre J. said, at p. 599:

It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment.

[16] The majority in Wilson went on to hold that the proper remedy to challenge the wiretap authorization was to return to the court, if not the actual judge, that granted the authorization. The majority analogized the wiretap authorization to an ex parte order granted in a civil proceeding and pointed to the body of jurisprudence in those cases that held that the authority to review an ex parte order lay with the judge who granted the ex parte order or, if unavailable, another judge of the same court. The only caveat that the majority placed on this remedy was that the reviewing judge could not substitute his/her discretion for that of the authorizing judge. In that regard, McIntyre J. said, at p. 608:

The reviewing judge must not substitute his discretion for that of the authorizing judge. Only if the facts upon which the authorization was granted are found to be different from the facts proved on the ex parte review should the authorization be disturbed.

[17] It is clear that, if the applicant’s challenge is governed by Wilson, then he must overcome a much higher hurdle in order to succeed because the grounds for setting aside an ex parte order are much narrower. The more stringent test set out in Wilson was summarized in the Court of Appeal’s decision in R. v. Garofoli (1988), 1988 3270 (ON CA), 41 C.C.C. (3d) 97 (Ont. C.A.) where Martin J.A. said, at p. 117:

On a “Wilson” application to set aside an authorization, the applicant must establish on a balance of probabilities that the authorization was obtained by fraud, material non-disclosure, misleading disclosure, or that there is new evidence which shows that the actual facts are different from those placed before the judge who granted the authorization.

[18] The decision in Wilson pre-dated the Charter. It is one of the challenge procedures that was referred to in the post Charter decision in Garofoli as being part of a “procedural quagmire”. The court in Garofoli sought to eliminate that procedural quagmire by consolidating all such procedures before the trial judge. To accomplish that goal, the court paid specific attention to the decision in Wilson because the situation in that case posed a greater difficulty in terms of being dealt with by the trial judge.

[19] In my view, the decision in Garofoli casts very significant doubt on whether the procedure in Wilson remains a viable one. As noted in Garofoli, the decision in Wilson came back before the Supreme Court of Canada in R. v. Meltzer, 1989 68 (SCC), [1989] 1 S.C.R. 1764. The court was essentially asked to overturn the decision in Wilson, which it declined to do. However in writing the reasons for the court in Meltzer, McIntyre J. (who I note wrote for the majority in Wilson) said, at p. 1771:

It has been said that this has led to a confusion and delay and that the trial judge should, in his capacity as trial judge, have full power to open the sealed packet and review the High Court order, regardless of the status of the trial judge, and make any necessary rulings. That this procedure would probably expedite matters and remove some confusion may well be true. It is not, however, a procedure provided by Parliament, and subject to arguments relating to the application of the Canadian Charter of Rights and Freedoms it is not, in my opinion, open to the courts to disregard the statutory provisions of Part IV.1 of the Criminal Code. If there is confusion and delay in this matter it arises from the Criminal Code itself and, subject as aforesaid, it will be for Parliament to change.

[20] The wording that I have emphasized in the above passage from Meltzer was picked up on in Garofoli, where Sopinka J. said, at para. 46:

In the passage cited above, McIntyre J. acknowledged that the application of the Charter might have an effect on the conclusion reached in Wilson. In my opinion, when it is asserted by an accused that a wiretap infringes s. 8, an appropriate review is incompatible with the restrictions of Wilson. The judge conducting the review must hear evidence and submissions as to whether the interception constitutes an unreasonable search or seizure. Inasmuch as it is an issue as to the admissibility of evidence, it may be raised at trial.

[21] In my view, two salient points arise from that passage. One is that the restrictive approach taken in Wilson is no longer applicable where the challenge to the search is based on the provisions of the Charter. The other is that, while a challenge to the validity of a search may be raised at trial, it is not restricted to only that forum. Undoubtedly in the normal course, if a challenge to a search is brought at a point before the trial, it is likely to be deferred to the trial judge but it does not have to be. Special circumstances may arise where the interests of justice will dictate that the challenge should not have to wait until an accused person arrives for his/her trial.

[22] The question then becomes whether the situation that presents itself in this case is one of those special circumstances. I believe that it is. As I have already noted, the situation here is unusual. It is one that is unlikely to arise frequently. It is a situation where, because of the Lavallee principles, the police have not had access to the devices in order to determine if there is material on those devices that would justify charges being laid. As a consequence, we are at a stage where it is unknown whether charges will ever be laid and, consequently, it is unknown whether there will ever be a trial judge to determine the issue surrounding the validity of the search.

[23] The decision in Lavallee makes it clear that solicitor and client privilege is a sufficiently important principle that all reasonably available steps should be taken to ensure its protection. As Arbour J.A. said in Lavallee at para. 36:

Indeed, solicitor-client privilege must remain as close to absolute as possible if it is to retain relevance. Accordingly, this Court is compelled in my view to adopt stringent norms to ensure its protection.

[24] I agree with the applicant that this stringent approach to the protection of the privilege dictates that his challenge to the legitimacy of the seizure of the devices ought to be heard and determined before the devices are examined under the Lavallee process. It is for this reason that the normal rule, that would have all issues regarding the admissibility of evidence heard by the trial judge – see, for example, Re Zevallos and The Queen (1987), 1987 169 (ON CA), 37 C.C.C. (3d) 79 (Ont. C.A.) – should not be applied to this case.

[25] In my view, while the Wilson test may technically still be available, in the sense that it has not been expressly eliminated by the Supreme Court of Canada, that test has no application to a challenge to a search where the challenge is based on an alleged breach of the rights guaranteed by the Charter. Where a breach of s. 8 of the Charter is the basis for the challenge then the principles set out in Garofoli apply to that challenge. I am reinforced in my conclusion by the following observation in Garofoli where Sopinka J. said, at para. 48:

The source of review under Wilson was the general jurisdiction of the courts to set aside their own orders, either by action in the High Court or by a motion to set aside an ex parte order. Resort to this jurisdiction attracted the restrictions inherent in the exercise of this jurisdiction both with respect to the available grounds and with respect to collateral attacks on court orders. These restrictions are fully explained in Wilson. The Charter provides a clear alternative basis for resort to the court and with it the appropriate grounds for a determination as to whether there has been a breach of s. 8.

[26] Given my conclusion that the Wilson test does not apply to this application, the submission by the respondent that the application should be summarily dismissed, because it cannot possibly succeed under that test, becomes moot.

[27] The issue then becomes how should the application proceed.

B. What pre-hearing procedures are available?

[28] My conclusion that this application is governed by the principles in Garofoli almost inevitably carries with it the concomitant conclusion that the applicant is required to satisfy the requirements set out in that case for leave to cross-examine the affiant or any other relevant witness. Specifically, I do not accept the applicant’s submission that because this application is brought under s. 24(1) of the Charter, he retains an absolute right to cross-examine witnesses.

[29] I do not view the decision in Garofoli, as affirmed in Pires, as limiting the restriction on cross-examination only to applications to exclude evidence heard at a trial. While the focus in those cases was on voir dires being conducted before the trial judge, that is to be expected since that is the usual or most common situation. However, the concern underlying the reasons for the restriction was broader than that. The Supreme Court of Canada was concerned, in both of those decisions, with the increasing length of criminal proceedings in general and pre-trial applications in particular. The court laid out a rule of general application that was intended to curtail the length of pre-trial applications, whether those applications were heard immediately before the trial proper or many months before the trial.

[30] I draw that conclusion from any number of statements made in those cases but especially the following two from Pires. At the outset of her decision in Pires, Charron J. said, at para. 3:

There is no constitutional right to adduce irrelevant or immaterial evidence. Further, the leave requirement strikes an appropriate balance between the entitlement to cross-examination as an aspect of the right to make full answer and defence, and the public interest in the fair, but efficient, use of judicial resources and the timely determination of criminal proceedings.

[31] This theme was reiterated later in her reasons where Charron J. said, at para. 31:

There is no point in permitting cross-examination if there is no reasonable likelihood that it will impact on the question of the admissibility of the evidence. The Garofoli threshold test is nothing more than a means of ensuring that, when a s. 8 challenge is initiated, the proceedings remain focussed and on track.

[32] For the purposes of this application, I would simply vary the above observation to say that there is no point in permitting cross-examination if there is no reasonable likelihood that it will impact on the question of the constitutional validity of the search.

[33] Nevertheless, I am concerned by the applicant’s point that, unlike the situation where the challenge is heard at the time of trial, in this situation the applicant has no disclosure and therefore is deprived of the information that he might otherwise have both to mount his challenge and to demonstrate the need for some cross-examination. Consequently, the applicant submits that, if he is to be held to the restriction on cross-examination, he ought to be entitled to some measure of disclosure for the purposes of his application.

[34] The res