R. v. Finlayson, 2015 ONSC 3476

COURT FILE NO.: 14-4792

DATE: 2015-05-29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen, Respondent

and

Ruth Anne Finlayson, Applicant

BEFORE: The Honourable Mr. Justice Robert B. Reid

COUNSEL: C. Bundy and N. Gilks, Counsel, for the Respondent

M. Wendl, Counsel, for the Applicant

HEARD: May 21, 2015

ruling on section 24(2) charter application

[1] The applicant, Ms. Finlayson, applies for an order excluding the content of wiretaps from the evidence against her at trial.

[2] The respondent admits there was a breach of Ms. Finlayson’s section 8 rights guaranteed by the Charter of Rights and Freedoms. The question is whether the applicant has established that admission of the evidence obtained in breach of her rights would bring the administration of justice into disrepute pursuant to section 24(2) of the Charter.

Background:

[3] The police undertook an extensive investigation with the object of gathering evidence to prosecute key members of a drug importation and trafficking operation. During that investigation, authorizations were granted allowing the interception of private communications. Based on the results of the wiretaps, several people were charged with drug-related offenses including conspiracy to traffic in cannabis marijuana and cannabis resin, and trafficking in those substances, as well as other offenses.

[4] As result of information received through the wiretaps, Ms. Finlayson was charged with obstruction of justice contrary to section 139(2) of the Criminal Code, R.S.C. 1985, c. C-46 [“Code”] and fabricating evidence contrary to section 137 of the Code. She was not a principal target in the investigation nor is it alleged that she was involved in drug importation or trafficking.

The Section 8 Breach:

[5] A wiretap authorization was granted on September 13, 2012. Section 185(1)(e) of the Code requires the identification of persons who are likely to be impacted by the authorization, if known. In the affidavit filed in support, 30 people were identified as “known” persons. One of those named was Ms. Finlayson’s brother Andre Gravelle. The affiant deposed that Andre Gravelle and his brother Daniel Gravelle were conspiring to import drugs into Canada with the assistance of others. Other “known” individuals included various family members of Andre and Daniel Gravelle.

[6] Telephone conversations between Ms. Finlayson and Andre Gravelle were intercepted whenever she was engaged in communications with him on his telephone lines. This was because the September 13, 2012 authorization allowed the police to intercept Andre Gravelle’s private communications. Ms. Finlayson was not intercepted when she used her telephone to engage in communications with other people. As a result of captured conversations between Ms. Finlayson and Mr. Gravelle on October 15 and October 17, 2012, Ms. Finlayson was charged with the two offenses.

[7] The respondent concedes that Ms. Finlayson should have been identified in the authorizations as a “known” person. The investigators were aware of her identity and had reasonable grounds to believe that the interception of her private communications might assist in the investigation. The failure to name her means that there was no lawful basis for the interception of her private communications and that therefore any subsequent interception was unlawful. Her section 8 Charter right to be secure against unreasonable search or seizure was breached.

[8] The omission of Ms. Finlayson’s name in the list of “known” persons was due to inadvertence, according to the uncontested affidavit of RCMP Cpl. Stephen Baetz who prepared the affidavit filed in support of the September 13, 2012 authorization request.

Should the Evidence be Excluded?

[9] The section 8 breach does not automatically result in the exclusion of evidence.

[10] Section 24(2) of the Charter provides that:

“when evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” [Emphasis added]

[11] The Supreme Court of Canada in R. v. Grant, 2009 SCC 32 at paragraph 71 mandated a method of analysis to be used in an exclusion application under section 24(2):

A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

(a) The seriousness of the Charter-infringing state conduct

[12] I agree with the comment of Dawson, J. in R. v. Ahmad, 2010 ONSC 123 at paragraph 17 that one of the main purposes for inquiring about the seriousness of state conduct that led to the breach is to preserve public confidence in the rule of law. The offending state conduct will fall along a continuum from trivial violations to willful or reckless disregard for Charter values. The public would be less concerned by violations at one end of the continuum but very concerned where the state conduct resulted in serious violations.

[13] Here, although the failure to name Ms. Finlayson as a known person was inadvertent, the breach was not trivial. The expectation of privacy is high for private communications. Part VI of the Criminal Code, pursuant to which the authorization was given, provides that it is illegal to intercept a person’s private communications except in carefully prescribed circumstances. Where an authorization under Part VI is sought, it is presumed that the authorizing judge will be given all the information necessary so that the judge can appreciate the extent of the privacy rights that would be impacted by the requested authorization, and make a decision accordingly.

[14] To condone inadvertent but nevertheless serious Charter breaches may minimize the obligation of the police to prepare accurate and complete affidavit material in support of a request for authorization. This concern engages the long-term, forward-looking and societal perspective mandated by the Supreme Court.

[15] Although the police conduct which led to the section 8 breach was inadvertent and although the police received no tactical benefit from their impugned conduct, the serious nature of the resulting breach militates against the admission of the intercepted communications.

(b) The impact of the breach on the Charter-protected interests of the accused

[16] On one hand, Ms. Finlayson has the right to expect that her privacy interest will be protected and that an unauthorized interception of her private communications will not occur.

[17] On the other hand, as I have noted, private communications of Ms. Finlayson were not intercepted except when they were to or from Mr. Gravelle who was properly named as a “known” person in the authorization. Therefore the communications which provide evidence of the charges against Ms. Finlayson would have been intercepted regardless of whether she was identified as a “known” person in the authorization and regardless of whether the issuing judge authorized a wiretap of her telephone lines.

[18] As a result, I find that as to this aspect of the Grant analysis, the impact of the breach was minimal on Ms. Finlayson.

[19] In coming to this conclusion, I acknowledge the evidence provided by Ms. Finlayson that the public nature of her arrest and the link made by local media between her and the alleged drug conspiracy was highly embarrassing and had a negative effect on her immediate family including her young children. However, in my view, those impacts arose from the charges rather than from the Charter breach.

(c) Society’s interest in the adjudication of the case on its merits

[20] The first two parts of the Grant analysis focus on the societal interest in preserving Charter protections and the effect of the breach on the individual. The third looks at the issue from a different direction, namely the need to ensure public confidence in the fair prosecution of offenders in accordance with the evidence. In the Charter context, one must consider the overall reputation of the justice system, viewed in the long-term. To quote from Grant at paragraph 81, “the 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.”

[21] The intercepted communications in this case are apparently critical to the case for the prosecution. Counsel advised that without them, there would be no basis for the charges against Ms. Finlayson to proceed. The communications do not constitute conscripted statements and seem reliable in that they are the unguarded words of Ms. Finlayson and Mr. Gravelle that, but for the authorization, would have been exchanged in private.

[22] Counsel argues on behalf of Ms. Finlayson that although the statements may be reliable in one sense, they are not necessarily clear and unequivocal. While that may be the case, I consider that issue to be a matter for argument at trial rather than part of the balancing of interests in this pretrial application.

[23] Although the charges are not related to the main focus of the investigation, namely the prosecution of serious drug-related crime, they are nevertheless important. If proven, fabrication of evidence and obstruction are activities that directly undermine the proper administration of justice. I acknowledge the competing consideration that the courts should be even more vigilant to protect the rights of an accused person when the charges and potential consequences are significant.

[24] Clearly there is a societal interest in bringing a proper case to trial on the merits based on reliable evidence which must be balanced against the protected Charter interests.

Conclusion:

[25] There is no scientific method for performing the balancing of interests through the analysis mandated by Grant. What is required is to consider objectively all the circumstances of the case surrounding the breach and view them, as the Supreme Court described it, from a “long-term, forward-looking and societal perspective.” Would a reasonable person, informed of all the relevant circumstances and the values underlying the Charter conclude that the admission of the evidence would bring the administration of justice into disrepute?

[26] The task is for the court to assess and balance the effect of admitting or excluding the evidence on society’s confidence in the justice system.

[27] In this case, and for the reasons that I have noted above, I find that there has been a serious breach of Ms. Finlayson’s Charter rights. In the circumstances, however, including the inadvertent nature of the omission and the lack of any strategic benefit to the police, this is not a situation where the first branch of the analysis outweighs the others so as to require the exclusion of the evidence.

[28] I have found that the impact of the breach on Ms. Finlayson’s Charter-protected interests has been modest in the particular circumstances of this case. I am satisfied that the public interest would not be offended by admission of the evidence under the second branch of the Grant test.

[29] Finally, I consider that the use of reliable evidence secured notwithstanding the section 8 breach would serve society’s interest in having the case adjudicated on its merits.

[30] On balance, I conclude that it has not been established that admission of the evidence would bring the administration of justice into disrepute and therefore this application to have the evidence excluded is dismissed.

“R. B. Reid”

Reid J.

Date: May 29, 2015