OSHAWA COURT FILE NO.: 13543/14

DATE: 20150731

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen
Crown/Respondent

– and –

Harley Guindon, Christopher Gonder, Wallace Groves, Robert Pammett Junior, Juan Munoz and Andrew Bryan
Applicants

Sarah Egan and James Clark, for the Crown/Respondent

Alan Richter for Mr. Guindon; Ramona Abraham for Mr. Gonder; Stephen Proudlove for Mr. Groves; Thomas Balka for Mr. Pammett; Donald Carter for Mr. Munoz; Andrew Bryan self-represented

HEARD: July 19, 20 and 21, 2015

RULING ON THE GAROFOLI APPLICATIONS

BIRD J.:

Introduction

[1] The Applicants are charged with several drug related offences which are alleged to have occurred between March and August of 2012. In the spring of 2011, the Durham Regional Police Service began receiving information that Harley Guindon, who had recently been released from the penitentiary, was involved in drug trafficking in the Oshawa area. They conducted some surveillance at that time but did not have the necessary resources to devote to a full-scale investigation. That changed toward the end of 2011 and Project Kingfisher began. The purpose of the project was to investigate the alleged drug trafficking activities of Mr. Guindon and his associates. The police obtained three DNR and tracking warrants in early 2012 and conducted further surveillance. On April 23, 2012 they received judicial authorization to intercept the private communications of several named parties including Mr. Guindon, Mr. Pammett, Mr. Groves and Mr. Gonder. This was the first Kingfisher wiretap authorization. On June 21, 2012, the second Kingfisher authorization was signed and Mr. Munoz and Mr. Bryan were added as named parties. Neither Mr. Munoz nor Mr. Bryan made submissions on this application but have agreed to be bound by the ruling.

[2] Evidence was also gathered as a result of a wiretap authorization that was obtained in relation to a homicide that occurred on January 28, 2012 at a known crack house in Oshawa. The police investigation into the homicide was dubbed Project Reliant. The authorization, which was issued on May 29, 2012, named Mr. Groves, Mr. Guindon and others as known parties. Among other things, it authorized the interception of private communications in the residence of Mr. Groves. It is evidence from these room probes that the Crown seeks to adduce at this trial.

[3] Pursuant to Section 24(2) of the Charter, the Applicants seek to exclude evidence obtained from the three judicial wiretap authorizations. They submit that the authorizations were obtained in contravention of their Section 8 Charter rights. The Applicants allege that the affidavits in support of the applications did not disclose reasonable and probable grounds to believe that the authorizations would afford evidence of the offences specified. Further, they allege that there were not sufficient grounds to name them as known parties, the interception of whose private communications may assist the investigation, as set out in Section 185(1)(e) of the Criminal Code. As a result of these alleged deficiencies, the Applicants argue that the authorizations ought not to have been issued. It should be noted that they do not challenge the existence of investigative necessity.

General Legal Principles on a Review

[4] The law in relation to the standard to be applied by a reviewing judge is well established. The proper standard of review is: based on the record before the authorizing judge, as amplified by the record before the reviewing judge, could the authorizing judge have granted the authorization. The reviewing judge does not conduct a de novo hearing nor substitute his or her view for that of the authorizing judge. Put another way, the decision of the authorizing judge should not be set aside unless the reviewing judge is satisfied that there was no basis for the authorization (R. v. Garofoli, 1990 52 (SCC), [1990] S.C.J. No. 115 at paragraphs 55, 56 and 62).

[5] In conducting my review in this case, I bear in mind the level of care that must be applied when dealing with Part VI authorizations. In Duarte, 1990 150 (SCC), [1990] S.C.J. No. 2, the Court acknowledged that electronic surveillance is the greatest leveller of human privacy and that intercepts allow the police to enter our homes uninvited and contrary to every reasonable expectation of privacy that most people have (R. v. Duarte, supra, at paragraphs 22 and 37).

[6] There is no question that without strict compliance with the statutory requirements of Sections 185 and 186, the wiretap is illegal and therefore unconstitutional (R. v. Pires, 2005 SCC 66, [2005] S.C.J. No. 67 at paragraph 8). However, it must also be remembered that a Garofoli application is not a trial. It is an application in relation to the admissibility of evidence. As a result, it is not intended to test the merits of any of the allegations in respect of the offences. The truth of the allegations is to be tested at the trial proper (Pires, supra, at paragraph 30). This is an important distinction. The affidavit need not disclose reasonable and probable grounds to charge the Applicants with any of the named offences. It is sufficient if it provides reasonable grounds to believe that intercepting their communications may assist the investigation into the offences specified (R. v. Ebanks, 2009 ONCA 851, [2009] O.J. No. 5168 at paragraph 33).

[7] Furthermore, as directed by our Court of Appeal in Spackman, 2012 ONCA 905, [2012] O.J. No. 6127, I must review the affidavit as a whole, not in a piecemeal fashion. I am also obliged to accept the ability of the authorizing judge to draw reasonable inferences from the contents of the affidavit (R. v. Spackman, supra, at paragraph 223).

[8] Section 186(1)(a) of the Criminal Code has been interpreted to mean that there must be reasonable and probable grounds to believe that an offence has been or is being committed and that the authorization will afford evidence of that offence. With respect to the standard that must be met on the issue of the existence of reasonable and probable grounds, the affidavit must disclose more than suspicious conduct (R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8 at paragraphs 94 and 95). There must be more than a hope that the targets might speak about some possible future offence (R. v. Lee, 2001 BCSC 1649, [2001] B.C.J. No. 2984 (B.C.S.C.) at paragraph 74). As stated in Grant, wiretap authorizations cannot be used to uncover evidence of unknown crimes or to prevent criminal activity in the future (R. v. Grant, 1998 17678 (MB CA), [1998] M.J. No. 474 (Man. C.A.) at paragraphs 26 and 27).

[9] Clearly, the police cannot use Part VI authorizations to engage in a fishing expedition in relation to hypothetical or imaginative offences. However, it must be remembered that when they are applying for a Part VI authorization, the police are still in the investigatory stage. It is therefore unrealistic to expect great particularity (R. v. Della Penna, 2012 BCCA 3, [2012] B.C.J. No. 11 (B.C.C.A.) at paragraph 25). As stated by Justice Nordheimer in Lucas, 2009 27837 (ON SC), [2009] O.J. No. 2252 (Ont. S.C.J.), “it is not a fishing expedition to conduct an investigation where the general presence of criminal activity is known but the precise details of individual occurrences are not.” (R. v. Lucas, supra, at paragraph [39](https://www.canlii.org/en/on/o