SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
SANDRA ZAHER
and
DIANA AL-MASALKHI
P R O C E E D I N G S
BEFORE THE HONOURABLE JUSTICE R. POMERANCE
on December 4, 2014, at WINDSOR, Ontario
APPEARANCES:
R. Pollock Counsel for the Crown
P. Ducharme Counsel for Sandra Zaher
L. Joy Counsel for Diana Al-Masalkhi
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
RULING ON APPLICATION . . . . . . . . . . . . . . . . . PAGE 1
E X H I B I T S
Exhibit Number Entered on Page Number
No Exhibits Were Filed
Transcript Ordered: August 31, 2016
Transcript Completed: September 19, 2016
Ordering Party Notified: September 19, 2016
THURSDAY, DECEMBER 4, 2014
...COURT OPENS
CLERK REGISTRAR: Her Majesty the Queen and Zaher and Al-Masalkhi.
THE COURT: Yes. Good morning. Let me apologize. I clearly underestimated the time that I would require to put the finishing touches on my ruling, so I am grateful to everyone for your patience. My ruling is as follows.
For purposes of the oral decision, I will not refer to any case citations, though I reserve the right to insert citations and other grammatical corrections should a written transcript be obtained. My ruling is as follows.
RULING ON APPLICATION
POMERANCE, J. (ORALLY):
INTRODUCTION
Sandra Zaher is an immigration lawyer in the City of Windsor. She and her assistant, Diana Al-Masalkhi, are charged with offences alleging the counselling of fraudulent claims before the Immigration and Refugee Board.
This matter came to the attention of the police when a former client of Ms. Zaher, Mr. Alathwane, told the R-C-M-P that he lied to the Immigration and Refugee Board. He claimed that he obtained refugee status on the basis of a false story that was concocted by Ms. Zaher. Having received this information, the police planned an undercover operation whereby an officer would pose as a client and seek Ms. Zaher’s advice. The police wanted to record the communications between undercover officers and Ms. Zaher and, therefore, obtained a consent authorization under section 184.2 of the Criminal Code. Two meetings took place. The first was attended by one undercover officer with Ms. Zaher. The second was attended by two undercover officers, one posing as a translator, with Ms. Zaher and Ms. Al-Masalkhi.
The defence seeks to exclude the evidence of the intercepted communications, arguing that the affidavit on which the order was based was misleading. It was said that, had the issuing judge known the true state of affairs, he would not have granted the order. Ms. Al-Masalkhi also challenges the order on the basis that it did not identify her as a known person.
The defence alleges that the officer intended to mislead and that he acted in bad faith. It is said that the orders violated section 8 and that evidence obtained should be excluded under section 24(2).
The Crown acknowledges that there are factual errors in the affidavit but says that they do not invalidate the order. The Crown disputes that section 8 was violated, arguing that, in any event, the evidence should be admitted under section 24(2). The Crown argues that the police acted in good rather than bad faith.
I have carefully considered the evidence on the voir dire and the positions of the parties. I find that there are two factual defects of significance. The first is a misrepresentation. The affidavit erroneously suggested that Ms. Zaher was involved in multiple acts of wrongdoing whereas police only had evidence of a single transgression. The second is a material omission. The affidavit portrayed Mr. Alathwane as a man who had nothing to gain from coming forward, implying that he must be speaking the truth. In fact, Mr. Alathwane was hoping that the police would him obtain permanent residence status in Canada. This motive was not disclosed to the issuing judge.
Despite these defects and despite the compelling advocacy of the defence, I must conclude that, on a proper analysis, the defects do not invalidate the order. When the inaccurate information is excised from the affidavit, and the missing information is added, there remains a cogent basis on which the order could and would still issue. The errors are unfortunate but not fatal. Having watched Sergeant Richardson undergo vigorous and very skilful cross-examination over the course of four days, I find that the officer did not deliberately set out to mislead the issuing judge. I cannot find that his errors were the product of bad faith or a desire to subvert the process.
In these circumstances, I find the authorizations to be valid and conclude that the interceptions did not violate section 8 of the Charter. If I am wrong, and section 8 was violated, I am satisfied that the evidence should properly be admitted under section 24(2). I will state the bases for these conclusions in the reasons that follow.
SOURCES OF EVIDENCE
Various items of evidence were before the court on the section 8 voir dire. An affidavit of the accused, Sandra Zaher, was filed and Ms. Zaher testified on her own behalf. Other affidavits were filed attesting to communications between the prosecution and Mr. Alathwane after his return to Yemen.
The defence was granted leave to cross-examine Sergeant Richardson on his affidavit, and did so. The defence wished to also cross-examine two sub-affiants, Mr. Alathwane and Mr. Gabriel Maggio, but withdrew that request when the testimony of Sergeant Richardson was complete.
BACKGROUND
In August 2011, the R-C-M-P Windsor, Immigration and Passports section, received a telephone call from Gabriel Maggio, an immigration consultant. Mr. Maggio told police that a client of his admitted to lying during his refugee hearing in Toronto. He said that he was advised to lie by his lawyer, Sandra Zaher. Arrangements were made for Officer Dao (ph) of the R-C-M-P to meet with the client, Amad Alathwane, at Mr. Maggio’s office. The first meeting took place on August 26th, 2011, at which time Mr. Alathwane provided what is known as a K.G.B. statement to Officer Dao (ph).
Sometime later, Sergeant Richardson returned from annual leave and took over the investigation. He had a second meeting with Mr. Alathwane in October 2011 at which time he took another lengthy statement. Sometime thereafter, in December 2011, Sergeant Richardson learned that Mr. Alathwane had requested his passport so that he could return to his home country of Yemen.
In the meantime, the police had been planning an undercover operation aimed at Ms. Zaher’s law office. Sergeant Richardson sought the first consent authorization by way of affidavit sworn on January 23rd, 2012. The order was signed by Mr. Justice Dean on January 25th, 2012. A second authorization was sought by way of affidavit sworn February 14th, 2012 with the second order issuing February 15th, 2012.
Mr. Alathwane was a Yemeni national who originally came to Canada on a student visa in August 2009 to study at the University of Windsor. He did not remain at the university for long as it was quickly discovered that he did not have sufficient fluency in the English language. He ended up finding employment at a gas bar in Thompson, Manitoba. Mr. Alathwane consulted with Mr. Maggio, an immigration consultant, about his options for remaining in Canada. Mr. Maggio did not take his case.
Mr. Alathwane then went to see Sandra Zaher. He first went to her office in December 2009. He retained her services and she represented him on a claim for refugee protection in Canada. Mr. Alathwane had to first submit to an eligibility interview which he attended alone. He claimed that, during the interview, he was aggressively questioned by members of the Canada Border Service Agency, the C-B-S-A.
Thereafter, Mr. Alathwane attended a hearing before the Immigration and Refugee Board on August 10th, 2011. He was accompanied by Ms. Zaher. On the basis of the narrative he presented, he was declared to be a Convention Refugee.
Mr. Alathwane, no doubt aware that his Convention Refugee status was temporary, spoke with Ms. Zaher about applying for Permanent Resident status. According to Mr. Alathwane, Ms. Zaher required more money to commence that process and he did not want to pay her. He went back to consult with Mr. Maggio once again. It was shortly after that, that Mr. Maggio contacted the R-C-M-P and facilitated a meeting between Mr. Alathwane and an officer.
During his interviews with police, Mr. Alathwane said that he lied to the Immigration and Refugee Board. He said that Ms. Zaher had fabricated the story that he used in his narrative based on his resume and educational documents. He said that he came forward because he felt guilty, because he did not want to stay in Canada illegally, and because he did not want others to be cheated by Ms. Zaher. Mr. Alathwane also said other things. On various occasions, he expressed his hope that the R-C-M-P would assist him to remain in Canada in exchange for his statements.
The interviews between the officers and Mr. Alathwane were quite lengthy and, at times, difficult to understand. Mr. Alathwane spoke in Arabic and had the benefit of an interpreter. However, many of his assertions are grammatically peculiar and contextually ambiguous. I do not know whether this is a function of Mr. Alathwane’s manner of speech or a functional of the interpreters that were translating his responses into English. Suffice to say that while some of his assertions were fairly clear, other were of uncertain meaning.
It is also apparent that Mr. Alathwane said different things at different times in the interviews. At one point, he asserted that the information in the narrative was all correct. At other times, he spoke about it as a fabrication. Much of the information in the narrative was accurate, reflecting his history as a student in Yemen, his work to open up the Internet, and some of his interactions with Yemeni security officials.
Mr. Alathwane sometimes said that he was not afraid of the government in Yemen and sometimes said that he was afraid. Despite these apparent inconsistencies, the thrust of Mr. Alathwane’s evidence was that the crux of his refugee claim, namely that he had been threatened and beaten by Yemeni security officials, was untrue, and that it had been fabricated by Ms. Zaher. According to Mr. Alathwane, he gave Ms. Zaher his resume and his educational documents and she made up a story.
Mr. Alathwane also incriminated Diana Al-Masalkhi. Ms. Al-Masalkhi acted as an Arabic translator for Mr. Alathwane when he came to see Ms. Zaher. Ms. Al-Masalkhi also certified translation of several documents in the I-R-B file. At one point, police asked Mr. Alathwane if the translator would have known his claim to be false, to which he responded, “She might have known for sure.” This is just one example of the inherent ambiguity of Mr. Alathwane’s responses.
I do not propose to outline the statements in exhaustive detail but rather will address the evidence as it relates to the bases for challenging the affidavit and order.
ANALYSIS
GENERAL PRINCIPLES: FULL, FAIR, AND FRANK DISCLOSURE
Search warrants are usually obtained on an ex parte basis without notice to the target of the search. It is, therefore, of utmost importance that the informant make full, fair, and frank disclosure of all pertinent information, including information of an exculpatory nature, information that discloses police misconduct, information that casts doubt on the reliability of the officer’s grounds, and any other information that might militate against issuance of the order.
While the officer is entitled to make his or her case, the document must present a fair and balanced picture of the factual issues. He or she is not entitled to pick and choose amongst the relevant facts to achieve the desired outcome.
As it was put by Justice Fish, in R. v. Morelli, 2010 SCC 8, [2010] 1 SCR 253,
“In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosure to the justice. When seeking an ex parte authorization such as a search warrant, a police officer — indeed, any informant — must be particularly careful not to “pick and choose” among the relevant facts in order to achieve the desired outcome. The informant’s obligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure.”
Justice Fish pointed out that ultimately the question is whether the I-T-O is misleading, not whether it is intentionally misleading. He stated, at paragraph 59,
“The relevant question here is whether the ITO was misleading, not whether it was intentionally misleading. Indeed, in the Court of Queen’s Bench, the judge who had the benefit of observing the Crown’s witnesses on the voir dire found no deliberate attempt to mislead. That conclusion should not be disturbed. It is nonetheless evident that the police officer’s selective presentation of the facts painted a less objective and more villainous picture than the picture that would have emerged had he disclosed all the material information available to him at the time.”
Language used by police officers in I-T-O’s and affidavits must not attempt to trick its readers. It is here that boilerplate is eschewed by the courts given its tendency to obscure and mislead. As Justice LeBel observed, in R. v. Araujo, 2000 SCC 65, [2000] 2 SCR 992,
“Although the use of boiler-plate language will not automatically prevent a judge from issuing an authorization (there is, after all, no formal legal requirement to
avoid it), I cannot stress enough that judges should deplore it. There is nothing wrong – and much right – with an affidavit that sets out the facts truthfully, fully, and plainly. Counsel and police officers submitting materials to obtain wiretapping authorizations should not allow themselves to be led into the temptation of misleading the authorizing judge, either by the language used or strategic omissions.”
The duty of candour, balance, and fairness is critical. The concept of prior judicial review is only meaningful if the judge is actually in a position to critically assess whether the evidence meets the statutory criteria. If disclosure is not full, fair, and frank, the goal of protecting against unwarranted intrusion becomes illusory.
At the same time, it is neither necessary nor desirable for the police to offer a blind recital of every minute step during the court of the investigation. As it was put by Justice Casey Hill, in reference A.G.O. No. 55/97, [1997] O.J. No. 4393,
“The art of the task is to discriminate as to that information which must be included in order to provide an accurate, fair and fulsome account from that information which is unnecessary surplusage or indeed irrelevant.”
This point was also made by Justice LeBel writing for the court in Araujo (supra), where he stated that, while an affidavit or information must be full and frank, it must also be clear and concise. As it was put evocatively by Justice LeBel,
“So long as the affidavit meets the requisite legal norm, there is no need for it to be as lengthy as À la recherche du temps perdu, as lively as the Kama Sutra, or as detailed as an automotive repair manual.”
Similarly, search warrants are investigative tools. They must not be held to the standards that would be more appropriate to a trial setting. In Church of Scientology and The Queen (No. 6), Re, 31 CCC (3d) 449, the Ontario Court of Appeal stressed that,
“Police work should not be frustrated by the meticulous examination of facts and law that is appropriate to a trial process.”
More recently, in R. v. Nguyen, 2011 ONCA 465, [2011] O.J. No. 2787, the Court of Appeal for Ontario affirmed that, in seeking warrants, police are not required to anticipate and refute every element of every possible defence. The court said,
“There is no obligation on applicants to anticipate, and to explain away in advance, every conceivable indicia of crime they did not see or sense and every conceivable investigative step they did not take at the time in order to counter the creative arguments of able defence counsel on a review hearing many months or years after the event.”
While candour, balance, and fairness are critical, the police are ultimately held to a standard of reasonableness, not a standard of perfection. The issue is not whether the case has been proved beyond a reasonable doubt, or whether it can, even on a prima facie standard. The question is whether the evidence has established the requisite facts on the standard of credibly based probability. Simply stated, the police are not expected to prove a crime before they are entitled to investigate it.
THE STANDARD OF REVIEW
Where examination of witnesses on a voir dire reveals errors, omissions, or misrepresentations in the underlying facts, the court must consider whether those errors vitiate the warrant. In R. v. Bisson, 1994 46 (SCC), [1994] 3 S.C.R. 1097, the Supreme Court of Canada stated,
“[E]rrors in the information presented to the authorizing judge, whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselves lead to automatic vitiation”
The question is whether, after excising the erroneous information, or adding that which was improperly omitted, there remains sufficient reliable information to support an authorization or a warrant. As it was put by Justice LeBel, in Araujo (supra),
“In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued.”
In carrying out this analysis, the reviewing court is not to conduct a de novo assessment or substitute its own view for that of the issuing judge. The question is not whether the reviewing court would have issued the order, rather the relevant inquiry is whether the warrant could have issued on the basis of the sworn information.
THE MISREPRESENTATIONS
INTRODUCTION
Sergeant Richardson was cross-examined on various issues arising out of his affidavits. I find that there are two issues of particular concern:
Number 1: Erroneous reference to the plural.
Sergeant Richardson told the issuing judge the police had information that Ms. Zaher “was actively counselling individuals to represent themselves to the Immigration and Refugee Board.”
This statement suggested the at police had evidence of more than one instance of counselling. In fact, the only case they knew of was that Mr. Alathwane.
Number 2: Failure to disclose Mr. Alathwane’s potential motive. Sergeant Richardson told the issuing judge that Mr. Alathwane had nothing to gain and was motivated to come forward solely because of remorse and the desire to ease a guilty conscience. In fact, there was another motive that was not disclosed to the issuing judge, namely Mr. Alathwane perceived that, in exchange for his statement, police might assist him in obtaining Permanent Resident status in Canada.
I will deal with each of these in turn, and then address the other issues that were canvassed by the defence.
USE OF THE PLURAL
Sergeant Richardson testified that, the day after he took a statement from Mr. Alathwane, he met with Mr. Maggio for approximately half an hour. The officer wanted to meet with Mr. Maggio in order to establish a timeline of Mr. Alathwane’s representation and also to get Mr. Maggio’s sense of Mr. Alathwane’s credibility.
According to Sergeant Richardson, during that meeting, Mr. Maggio intimated that he wasn’t surprised to hear about the allegations, that Ms. Zaher had done this before with other individuals, some of whom had been deported. Sergeant Richardson asked Mr. Maggio to identify those other individuals, and Mr. Maggio refused to do so. Given the refusal of Mr. Maggio to provide further information, Sergeant Richardson correctly perceived that Maggio’s assertion about other clients was based on nothing more than rumour. It was entirely unsubstantiated. This type of information had no place in application for a judicial order. Nonetheless the statement appeared as the first sentence in paragraph 8 of the affidavit under the heading “Overview”. It was presented as fact and it’s true source, Mr. Maggio, was never disclosed to the issuing judge. If anything, the placement of the sentence, and the opening words as detailed below, suggested that the information came from Mr. Alathwane.
In cross-examination, Sergeant Richardson acknowledged that the statement was misleading. He seemed somewhat surprised to see it in the information to obtain, perhaps the document had been sworn some considerable time ago. At the time the affidavit was sworn, the officer chose, for whatever reason, to include the statement from Mr. Maggio.
It is self-evident and was acknowledged by the Crown that the sentence about multiple persons is misleading and must be excised from the affidavit. I find that excising that single sentence cures the defect. There is no reason to believe that the sentence distorted the meaning of any other averments in the affidavit because they are very clearly concerned with only one case, that of Mr. Alathwane. I find that the removal of that sentence does not displace the foundation for the issuance of the order. Ultimately, the order was not predicated on an allegation of multiple offences. It was predicated on a detailed description of one case involving Mr. Alathwane. I am satisfied that, had the offending sentence not appeared in the affidavit, the order would nonetheless have issued.
FAILURE TO DISCLOSE MOTIVE TO FABRICATE
In his testimony before the court, Sergeant Richardson testified that he was somewhat perplexed by this case. He could not understand why Mr. Alathwane would come forward and admit to fabricating his refugee application. It seemed to Sergeant Richardson that Mr. Alathwane had everything to lose by disclosing the falsity of his claim. He could be stripped of his refugee status and face deportation. Sergeant Richardson testified that he had never encountered this type of case. He likened it to a situation where an accused person is acquitted and, a short time later, tells the police that he was really guilty.
Sergeant Richardson felt the need to test Mr. Alathwane’s account and his motives. During the latter part of his interview with Mr. Alathwane, Sergeant Richardson engaged in what he described as a cross-examination in which he put several suggestions to Mr. Alathwane about why he was really speaking to the police. Sergeant Richardson testified that, as a result of this process, he came to believe that Mr. Alathwane was coming forward out of feelings of guilt and remorse, and his desire to remain in Canada on a legal rather than illegal basis. Sergeant Richardson felt vindicated in this view when he learned that Mr. Alathwane had returned to Yemen. The officer reasoned that, if he refugee application had been true and he did face persecution, Mr. Alathwane would not likely have returned to Yemen of his own volition.
Sergeant Richardson put forward this view of Mr. Alathwane’s voracity in the affidavit. He swore that Mr. Alathwane “had nothing to gain by coming forward and, in fact, everything to lose.” He elaborated further, in paragraph 24 of his affidavit, in a section entitled “Conclusion”:
“I believe the story provided by Alathwane. Mr. Alathwane had nothing to gain by coming forward and, in fact, everything to lose. His refugee claim had been accepted and, if he wanted to remain in Canada and seek Permanent Residence status, that was nothing to stop him. He did not seek any reward or compensation for his information but claims he only wanted to ease his conscience. Mr. Alathwane was granted refugee status on August 11th, 2011. On August 24th, 2011, he confessed his acts to police with the full realization that he may not face prosecution or deportation. Mr. Alathwane provided his statement to the police after being fully warned about the implications of making a false statement to the police. Mr. Alathwane’s first statement was warned and sworn according to the principles set out in the Supreme Court of Canada case of K.G.B. The story he provided to the I-R-B is believable in that we, in Canada, would have no trouble accepting that someone in Yemen could face persecution from authorities there for their belief. If, however, Mr. Alathwane had truly been subjected to persecution in Yemen, it is highly unlikely that Yemeni authorities would allow him to leave to study abroad or even offer him employment as he claims they did. In December of 2011, I was contacted by phone by Gabriel Maggio who advised that Mr. Alathwane wished to abandon his refugee claim and return to Yemen. Those are hardly the actions of someone who feared for his safety.”
This paragraph stood as a powerful endorsement of Mr. Alathwane’s credibility. In effect, the officer told the issuing judge that Mr. Alathwane had no reason to lie. He reported that Mr. Alathwane did not seek any reward or compensation for his information but that he only wanted to ease his conscience. Presumably, a conscience is only eased if someone is telling the truth. These passages expressly and impliedly vouched for the truth of Mr. Alathwane’s account.
The problem is that Sergeant Richardson’s subjective view did not reflect the whole of the objective circumstances. Whatever the officer thought about Mr. Alathwane’s credibility, it was incumbent upon him to tell the issuing judge everything, good and bad, that might detract from the assessment of Mr. Alathwane’s truthfulness. What is significant is that Sergeant Richardson did not include any information about other motives that could have explained Mr. Alathwane coming forward, or benefits that Mr. Alathwane might have thought he could receive.
Sergeant Richardson had no difficulty imagining motives. He put several of them to Mr. Alathwane during the interview. He suggested to Mr. Alathwane that he was angry at Ms. Zaher because his refugee application would expose his family to danger in Yemen. He suggested to Mr. Alathwane that he had come to the police because he owed Ms. Zaher money. He confronted Mr. Alathwane with various possibilities but did not mention any of them in his affidavit. The most obvious motive was one that was not only omitted from the affidavit but was omitted from the interview and the confrontation of Mr. Alathwane.
Mr. Alathwane perceived that the R-C-M-P might help him obtain Permanent Resident status in Canada. Mr. Maggio had told him that, if he spoke to the police about Ms. Zaher, the R-C-M-P would help him out or “find a suitable solution” for him to stay in Canada. Mr. Alathwane raised this issue with the police on various occasions. During the first interview with Officer Dao (ph), on August 26th, 2011, Mr. Alathwane said to Officer Dao (ph), “You, you’re supposed to help me out because I’m (inaudible) you.” Shortly after that, Mr. Alathwane stated, “When I talked to the lawyer and the lawyer told me that he’s going to talk to the police so that the police are going to help me out in my case.” Officer Dao (ph) responded by saying, “Uhh - uhh, and I understand that’s why we’re here but, at the same time, there’re - you know, we do help people who come forward for things like this, but your signature is on this, and I’m just telling you that it’s possible. But I’m not going to be the one doing it. I’m not interested in that.” Officer Dao’s (ph) response seemed to leave open the possibility that Mr. Alathwane might receive some form of help in exchange for coming forward.
During the second interview with Sergeant Richardson, on October 26th, 2011, Mr. Alathwane referred from time to time to his desire to “stay in Canada legally” and to live in Canada, saying that “there is no better place to live”. As the interview progressed, he spoke of the police helping him, saying, “And when I, uhh, and the - the lawyer told me that if I would tell the truth and the authorities would find a - a suitable solution for me so I would be able to stay here. Uhh - uhh - uhh, they - they said that they would be able to help me.” Sergeant Richardson asked, “Who’s they?” to which Mr. Alathwane responded, “If I, uhh, he - he told me that, if I would tell the truth, the government would - would help me, and they would see who did the wrong, who is - who is wrongdoing, uhh - uhh, wrong and they would punish him.” The officer asked, “Who told you that?” to which Mr. Alathwane responded, “Maggio told me that, and he said that he would tell the police. And I have decided to tell you the truth.” Mr. Alathwane returned to the topic again before the end of the interview saying, “I, uhh, when - when Mr. Maggio, uhh, Maggio advised me to come over there to tell you the truth, uhh, he told me, and I, uhh (inaudible) that you would cooperate with me, that you would help me. I did not know that you were - your staff, your situation, uhh, your attitude towards me would be like that.”
These passages leave little doubt that Mr. Alathwane perceived that he might stand to benefit if he spoke to the police about Ms. Zaher. He had been led to this view by Mr. Maggio, when he believed to be a lawyer, and who had facilitated the meeting with the police. It would seem that Mr. Alathwane never abandoned this view. As recently as November 2014, he returned to the issue when he communicated with Sergeant Richardson and Crown Counsel about the manner in which he would give evidence at this trial. In an email sent to Mr. Pollock, on November 26th, 2014, Mr. Alathwane said, “I have asked you before to contact immigration people in Canada to check if I can get permanent residence to live in Canada...but, if I can get permanent residence, I will come to Canada and not come back to [redacted word]. So again, please contact them and let me know the possible solution for me. I need your honest reply to this issue.”
Of course, Sergeant Richardson could not have anticipated the 2014 email when he swore the 2012 affidavit. But this correspondence confirms the significance of Mr. Alathwane’s earlier requests for assistance. Mr. Alathwane had to know that his refugee status was temporary and that he might need help to become a permanent resident. He did not want to pay Ms. Zaher’s fee to prepare the application. There were security issues. Mr. Alathwane believed that his roommate in Thompson, Manitoba might be a CSIS agent, and he was perturbed that the C-B-S-A had questioned him at his eligibility hearing. Finally, Mr. Alathwane’s perception was reinforced by Mr. Maggio, the person he thought was a lawyer that had arranged contact with the police. Mr. Alathwane’s request for assistance and the motive disclosed by it should have been referenced in the affidavit.
The question is whether inclusion of the missing information could have affected issuance of the order. Could the order still issue in the face of this information? The question is not whether I would have issued it but whether there remains a foundation capable of satisfying the statutory and constitutional requirements. I am satisfied that, had all of the circumstances been disclosed to Justice Dean, the order could and likely would still have issued.
Mr. Alathwane provided the police with detailed information alleging a serious crime. The fact that he might be looking for something in return did not necessarily destroy his credibility. It is not uncommon for informants to offer a quid hoping for a quo. This may consist of a desire for leniency in connection with an outstanding charge or sentence. Even where there is a prospect of benefit, an informant’s evidence may still meet the threshold of reasonable grounds and so may be reasonable to accept that the account is credibly probable. Information may furnish reasonable grounds even if there is some basis on which credibility could, at a trial, be challenged.
It is perhaps significant that, in this case, the police were not prepared to rely solely on Mr. Alathwane’s account. They did not rush to charge Ms. Zaher on his word alone. Instead, they constructed a plan for an independent investigation which would serve to either confirm or refute what Mr. Alathwane had to say.
I am satisfied that, had the motive been disclosed, it would not have affected the issuance of the order. I have spoken in detail about this motive as opposed to others because I find this motive to be the most compelling. Suffice to say, however, I find that the order could and would still have issued if any or all of the alleged motives had been disclosed.
FAILURE TO CONDUCT OTHER INVESTIGATIONS
The defence pursued various other areas of cross-examination with Sergeant Richardson, pointing to avenues of investigation that he either did not disclose or did not pursue. I find that these other issues are not sufficiently material to be capable of casting doubt on the validity of the order.
One area concerned the duration of the hearing. Mr. Alathwane told the police that he read his statement and then was granted refugee status. A document from the Immigration and Refugee Board indicated that the hearing of Mr. Alathwane’s case had lasted for close to two hours. Sergeant Richardson did not question Mr. Alathwane about what happened for the duration of this two-hour period. I do not see this as vitiating the officer’s grounds for belief.
A second area concerned the apparent correspondence between the immigration narrative and Mr. Alathwane’s actual circumstances. In paragraph 8 of the affidavit, Sergeant Richardson reported:
“Mr. Alathwane claims that he provided Ms. Zaher with some of the documents and the resume, and Ms. Zaher fabricated a story whereby he was portrayed as a victim of Yemeni authorities. Mr. Alathwane claims this story is a complete fabrication.”
A similar averment was set out in paragraph 15 of the affidavit.
During cross-examination, it was established that Sergeant Richardson never asked Mr. Alathwane to produce the resume that he claimed to have given Ms. Zaher. It was also pointed out that the story presented in the immigration narrative was true in many respects. It was not a “complete fabrication”.
I am not convinced that, viewed in context, there is necessarily a contradiction. The statement in paragraph 8 of the affidavit could be taken to mean that the part of the story portraying Mr. Alathwane as a victim of Yemeni authorities is a complete fabrication.
In the circumstances, I do not see this issue as being capable of removing the foundation of reasonable grounds.
The third area concerned an apparent inconsistency between what Mr. Maggio said about his meeting with Mr. Alathwane, and what Mr. Alathwane had to say. In paragraph 14 of the affidavit, Sergeant Richard reported that:
“Mr. Maggio reviewed Alathwane’s case and determined that there was little likelihood that Mr. Alathwane would be able to remain in Canada under any immigration programs.”
Sergeant Richardson testified that, when he met with Mr. Maggio, that is what Mr. Maggio told him. It would appear that Mr. Alathwane said something else. Mr. Alathwane told the police that Mr. Maggio instructed him that he could apply to be a permanent resident and that he was well-educated. According Mr. Alathwane, Mr. Maggio never commented on whether his application would be accepted or denied. This may or may not amount to an inconsistency. It is conceivable that Mr. Maggio rejected Mr. Alathwane’s case without telling him the real reason why. Even it is a contradiction, I find that it is not sufficiently material to cast doubt on the authorization.
CONCLUSION ON FACTUAL DEFECTS
In sum, for the reasons given, I find that none of the alleged factual defects in the affidavit, taken individual or cumulatively, are capable of displacing the grounds for issuing the order. On this basis, the order is valid. It follows that the interception of the accused’s communications did not offend section 8 of the Charter.
In light of this conclusion, I need not address admissibility of the evidence under section 24(2). If I am wrong, however, and the evidence did violate section 8, I would go on to find that the evidence should be admitted under section 24(2) of the Charter.
SECTION 24(2)
In applying section 24(2), it is important to precisely identify the evidence that is at issue in this case. If there is a breach, it is not the product of the undercover operation per se. The police were entitled to pose as clients of the law firm without the need for any prior judicial authorization. If there is a breach, it resides only in the state action of recording the undercover operation.
The police sought a judicial order because they wanted to create a record of the interaction between undercover officers and Ms. Zaher. The accused acknowledged that, even in the event that the evidence of the recording is excluded, the officers may nonetheless testify as to their independent recollection of what took place and what was said by the accused.
FIRST INQUIRY: SERIOUSNESS OF THE CHARTER-INFRINGING STATE CONDUCT
The first set of factors is concerned with the seriousness of the Charter-infringing state conduct. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, this was described as follows by Chief Justice McLachlin and Justice Charron at paragraph 72:
“The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.”
This is not a case in which the police acted in bad faith or due to unconscionable ignorance of the law. The police turned their minds to the need for an authorization. They chose to create an objective record of the investigation which would preserve the best evidence, be it inculpatory or exculpatory, for presentation in court.
For reasons I have already alluded to, I accept that Sergeant Richardson was acting in good faith and that he was genuinely trying to test the credibility of the affiant and was genuinely trying to put forward an accurate picture of the case. While he failed to do so in two respects, these examples were not borne of any deliberate intention to mislead.
SECOND INQUIRY: IMPACT ON THE CHARTER-PROTECTED INTERESTS OF THE ACCUSED
The second inquiry “calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed.” The court is to consider the interests protected and examine the degree to which the violation impacted on those interests. The more serious the impact, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute.
If there is a breach, it clearly did have an impact on the privacy interests of the accused. In R. v. Duarte, 1990 150 (SCC), [1990] 1 SCR 30, the Supreme Court of Canada rejected the notion that the risk of someone repeating our words is the same as the risk of having a permanent electronic recording made of our words. The latter risk is seen as far more pernicious. One might wonder whether more than 20 years after the Duarte case this risk remains quite as pernicious. The 21st Century is one of ubiquitous technology where most citizens own Smart Phones that cannot only record events but instantly upload them onto the Internet.
Leaving that aside, I do accept that, within the confines of her law office, while meeting with a client, Ms. Zaher had no expectation that her words would be recorded nor did Ms. Al-Masalkhi. It is significant in assessing the impact of the breach that the breach in this case had no impact on what was said. We must presume that both accused would have spoken the very words that they did whether or not they were being surreptitiously recorded.
Finally, I am conscious of the fact that this operation took place within the confines of a law office. Ordinarily, searches of such sensitized locations call for special conditions. As stated by Justice Lamer, as he then was, in the seminal case of Descôteaux v. Mierzwinski, 1982 22 (SCC), [1982] S.C.J. No. 43,
“One does not enter a church in the same way as a lion's den, or a warehouse in the same way as a lawyer's office.”
That principle has only limited application in this case. Here, the police were not entering the office to examine any client files. They were not positioned to violate solicitor-client privilege. They were positioned to see only what any other client would see when coming to the office for an interview. The only client information that they were privy to was their own, and the order had limiting terms and conditions to prevent recording of communications by others not involved in the case.
THIRD INQUIRY: SOCIETY’S INTEREST IN ADJUDICATION ON THE MERITS
A number of factors are relevant at the third stage of inquiry. The question is whether “the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or by its exclusion.” (See Grant (supra), at paragraph 79.) The reliability of evidence is an important factor in this line of inquiry. As it was put, in paragraph 81 of Grant (supra),
“If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neither the accused’s interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.”
Here, it is acknowledged that the exclusion of the recordings would not gut the Crown’s case. The Crown could still have recourse to the testimony of the undercover officers. That is a factor to be considered.
On the other hand, the intercepted communications would greatly enhance the reliability of the fact-finding process in this case. The recordings would insure that evidence of the meetings would not be subject to the frailties of memory or note-taking practices by the officers involved. If the officers testify and deviate from the recordings, this may serve as fodder for cross-examination by the defence.
This evidence is not only reliable in its own right, it has the capacity to enhance the reliability of other evidence that is to be adduced at the trial.
For these reasons, I find that all three lines of inquiry favour the admission of the evidence at trial, and, if there was a breach, it should not result in the exclusion of the intercepted recordings.
FAILURE TO IDENTIFY DIANA AL-MASALKHI AS A KNOWN PERSON
I will now turn to the final issue raised by Ms. Al-Masalkhi.
It is argued on her behalf that the police erred in failing to identify her as a known person when they saw a second authorization on February 14th, 2012. The police are obliged to identify a person as a known individual if their identity is known to the police (not necessarily their name) and reasonable grounds exist to believe that interception of their communications may assist the investigation.
In order for persons to be named in an authorization, they need not be targets in the traditional sense. In some instances, police are obliged to name entirely innocent parties because it is anticipated that their communications will assist the investigation, such as where they take messages for the target of the investigation. (See R. v. Chesson, 1988 54 (SCC), 43 CCC (3d) 353; R. v. Schreinert, 2002 44932 (ON CA), 165 CCC (3d) 295.)
In this case, there are factors suggesting Ms. Al-Masalkhi was a known person, and there are factors suggesting that she was not. Factors suggesting that she was a known person include the following:
A woman named Diana Al-Masalkhi had translated the documents in Mr. Alathwane’s I-R-B file. The document completed at the eligibility hearing was said to be prepared by the secretary of Sandra Zaher. When Sergeant Richardson asked Mr. Alathwane if the translator knew his story was fabricated, he said that the translator might know for sure. Sergeant Richardson knew that, when the first undercover officer attended at Ms. Zaher’s office, a woman was sitting at the receptionist’s desk. Sergeant Richardson did not know how large Ms. Zaher’s staff was but he suspected that the woman at the desk might be Diana Al-Masalkhi. It was reasonable to expect that, in such a small law office, the assistant might be called upon to participate in the preparation of materials. Whether or not the staff member was actually complicit in an offence, it was reasonable to believe that her communications might be relevant to the investigation. And the original affidavit, sworn in January 2012, stated that the operational plan was to “capture the conversation between Corporal Sharma and Sandra Zaher and anyone else acting in concert with Zaher, such as a translator.” This operational plan contemplated that interception of the communication of Ms. Zaher’s translator, identified to be Diana Al-Masalkhi, in Mr. Alathwane’s file would assist the investigation.
Factors suggesting that Ms. Al-Masalkhi was not a known person include the following:
Sergeant Richardson knew that, when the undercover officer met with Sandra Zaher, the two of them were the only people in the room. The receptionist did not participate in the discussion. While Ms. Al-Masalkhi had translated Arabic into English for Mr. Alathwane, the undercover officer purported to speak Punjabi. When the undercover officer left the office after the first visit, Ms. Zaher told him to bring his own translator. This further reduced the likelihood that Ms. Al-Masalkhi would perform this function when the officer returned. And, in the affidavit sworn on February 14th, 2012, the affiant stated that officers chose to use a second undercover officer as an interpreter “in order to limit the number of unknown persons intercepted in accordance with this order.”
This is a close case. There are arguments both for and against the identification of Ms. Al-Masalkhi as a known person. If Ms. Al-Masalkhi was a known person and was not so identified, it would follow that the interception of her communications was not authorized, and that her rights under section 8 of the Charter were violated. Even if Ms. Al-Masalkhi’s section 8 were violated by the failure to identify her as a known person, I would not grant a remedy on this basis. Any breach arising in these circumstances is of a highly technical nature. Sergeant Richardson did clearly identify Ms. Al-Masalkhi in his affidavit of February 14th, 2012. Under the heading “Unknown Persons” he wrote:
“When Corporal Sharma attended to the law offices of Sandra Zaher on February 1st, 2012, he noted that, at that time, Sandra Zaher’s staff consisted of a single, unidentified female receptionist. No other staff or offices were observed by Corporal Sharma inside the law offices located at 310 Wyandotte Street East.”
The effect of this passage was to identify the “single, unidentified female receptionist” as someone who might well be intercepted under the terms of the order. To this extent, the receptionist was effectively identified as a known person even though she was labelled unknown. What I mean by that is that the issuing judge would have appreciated that the order could result in the interception of her communications.
Given the factors that favour both sides of the debate, it cannot be said that it was obvious that she should be named as a known person, or that the failure to do so was a product of bad faith.
In the final analysis, I cannot conclude that the violation on this basis, if it exists, is of sufficient gravity or blameworthiness to warrant an exclusion of the evidence at trial.
For all of the reasons given, the application to exclude the evidence of the intercepted communications is dismissed.
...END OF TRANSCRIPTION
FORM 2
Certificate of Transcript
Evidence Act, subsection 5(2)
I, David Lobbestael, certify that this document is a true and accurate transcript of the recording of R. v. SANDRA ZAHER in the Superior Court of Justice held at WINDSOR, Ontario, taken from Recording No. 0899_245-CRTRM4_20141204_094226__10_POMERAR, which has been certified in Form 1.
“Sept. 19, 2016” “David Lobbestael”
Date (Signature of Authorized Person)
David Lobbestael
ACT #1910050206
1-855-443-2748