COURT FILE NO.: CR-13-90000727 DATE: 20170106
ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
B E T W E E N:
KEVIN WALLACE, ZULFIQUAR BHUIYAN and RAMESH SHAH Applicants
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA Respondent
COUNSEL: S. K. Fenton, for the applicant, Kevin Wallace M. Savard, for the applicant, Zulfiquar Bhuiyan D. Cousins, for the applicant, Ramesh Shah T. Gilliam & J. Conroy, for the respondent
HEARD: December 12, 13 & 14, 2016
1The applicants are each charged with a single offence under the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34. The applicants bring this application, pursuant to the principles set out in R. v. Garofoli, [1990] 2 S.C.R. 1421, to challenge the authorizations that the police obtained to intercept their private communications. [1]
2Some brief background will be sufficient to provide a context for the application. There were originally five accused persons. Pursuant to an earlier decision, I stayed the charge against one of the accused persons. Another accused person has had the charges against him dropped. Of the remaining three accused persons, two were employees of SNC Lavalin, which is the company that is alleged to have been at the centre of the scheme to pay bribes. Ramesh Shah was Vice-President of the International Division of SNC Lavalin. Mr. Shah reported to Kevin Wallace, who was Vice-President, Energy and Infrastructure, and was the senior SNC Lavalin executive assigned to the project in Bangladesh, to which the bribery scheme related. Zulfiquar Ali Bhuiyan is a Bangladeshi and Canadian Citizen. It is alleged that Mr. Bhuiyan was the representative of Abul Chowdhury, a senior Bangladeshi official, who was said to also be involved in this scheme.
3The background to this matter revolves around the awarding, by the Government of Bangladesh, of a $50 million construction supervision contract (“CSC”) related to the planned construction of the Padma Bridge in Bangladesh. The World Bank was a primary lender in relation to the Padma Bridge project.
4Five companies were short-listed for the CSC aspect of the Padma Bridge Project: AECOM, HPR, Halcrow, Oriental and SNC Lavalin. The decision to award the CSC proceeded in stages. First, consideration was given to the technical qualifications of the bidders. That consideration led to a ranking of the bidders, which was released on December 19, 2010. That ranking placed HPR first, SNC Lavalin second, AECOM third, Halcrow fourth, and Oriental fifth.
5The second stage involved consideration of the financial aspects of the proposals. Those considerations lead to a re-ranking of the bidders, which was released on March 28, 2011. That ranking resulted in HPR no longer being in first place. Instead, Halcrow was first, followed by SNC Lavalin, then HPR, AECOM and Oriental.
6The Word Bank has a unit that is charged with the investigation of allegations of fraud, corruption, collusion and other improper activities in relation to World Bank financed projects. It is called the Vice Presidency for Integrity (“the INT”). In March, 2011, an officer with the RCMP was approached by an INT investigator concerning allegations that had come to the INT’s attention regarding possible corruption involving SNC Lavalin and the Padma Bridge project.
7In particular, Paul Haynes (“Haynes”), an investigator within the INT, began providing information to the RCMP that the World Bank had received from four “tipsters”. These tipsters had communicated with the World Bank by email. Haynes did not meet or know the identity of Tipsters #1 or #3. Haynes did know the identity of tipster #2 but, at the request of tipster #2, Haynes refused to reveal his/her identity to the RCMP. Haynes also knew the identity of tipster #4. That identity was revealed by Haynes to the RCMP. However, as it turned out, the information from tipster #4 was very general in nature and was essentially irrelevant to the allegations that SNC Lavalin was involved in corrupt practices.
8None of the tipsters had previously provided information to the police or to the INT. During its investigation, the RCMP did not speak with either tipster #1 or tipster #3. An RCMP officer did speak with tipster #2, but only by telephone. No RCMP officers actually met with tipster #2. As is apparent from a review of the Information to Obtain (“ITO”) filed in support of the first authorization, most, if not all, of the information provided by the three tipsters had, in turn, been received by the tipsters from other sources. The RCMP did not contact any of the sources of the hearsay information relayed by the tipsters, even though some of those sources were identified by the tipsters, and thus were known both to the INT and to the RCMP.
9The RCMP investigation commenced in April 2011. The RCMP applied for and was granted a Part VI authorization to intercept private communications on May 24, 2011 based on an ITO sworn the same day. That authorization was renewed on June 23, 2011, and again on August 8, 2011. It is these authorizations that are the subject of this challenge.
10Although there were three authorizations, the argument of this matter concentrated on the first authorization. The argument could be so focused because the applicants and the respondents quite reasonably agreed that, if the first authorization survived the challenge, the second and third authorizations would also do so. Similarly, it was also agreed that, if the first authorization failed the challenge, then the second and third authorizations would also fall.
I: General Principles
11At this juncture, I should set out the general principles that apply to this application. First is the standard of review. It is set out in Garofoli, at para. 56 (QL):
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
12Second, there are two conditions precedent that must be satisfied before a judge of a superior court of criminal jurisdiction may grant an authorization to intercept private communications under s. 186(1) of the Criminal Code. They are (i) reasonable and probable grounds to believe an offence is being or has been committed and (ii) investigative necessity.
13Third, the affiant of an ITO for an authorization has a specific duty. S/he must make full, frank, and fair disclosure. This duty arises, in part, because such authorizations are obtained on an ex parte application. Compliance with that duty is of particular importance, in this situation, given the nature of the authorization sought, that is, the right of the police to intercept the private communications of individuals.
14Fourth, the essential nature of the duty of full, frank, and fair disclosure has different aspects. Those different aspects are canvassed in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992. One of those aspects relates to the manner in which the information contained in the ITO is laid out for the authorizing judge. It is an aspect that has significance for this case. It was described by LeBel J., at para 47:
A corollary to the requirement of an affidavit being full and frank is that it should never attempt to trick its readers. At best, the use of boiler-plate language adds extra verbiage and seldom anything of meaning; at worst, it has the potential to trick the reader into thinking that the affidavit means something that it does not. 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.
15Another part of the duty of an affiant to make full, frank, and fair disclosure is that the affiant must include all material facts that are known, whether those facts support, or detract from, the issuance of the authorization. This aspect of the duty was described in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 by Fish J., at para. 58:
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. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.
16Finally, on the subject of general principles, one should always bear in mind that the interception of private communications by the state represents one of the most intrusive invasions of a person’s privacy. Certainly more intrusive than the search of premises: Garofoli at para. 33. Consequently, there is a statutory framework, with which the police must comply, in order to obtain an authorization to intercept private communications. The requirements are set out in Part VI of the Criminal Code. Those requirements are intended to set a high threshold for obtaining an authorization. In particular, the authorizing judge must be satisfied that there are reasonable and probable grounds to believe that an offence has been, or is being, committed. Mere suspicion is not sufficient. As La Forest J. said in R. v. Duarte, [1990] 1 S.C.R. 30 at para. 24 (QL):
Only a superior court judge can authorize electronic surveillance, and the legislative scheme sets a high standard for obtaining these authorizations.
II: The adequacy of the edited ITO
17As will be apparent from my recitation of the background above, the ITO for the first authorization depended, for all practical purposes, solely on the information provided by the four tipsters. I have already said that the information provided by tipster #4 was essentially irrelevant to the case advanced against SNC Lavalin, and the applicants, so I need not say anything more about him. [2] The affiant, in the ITO, treated all four tipsters as being the equivalent of confidential informants, although it became apparent, as this matter progressed, that only two of the tipsters were properly treated as such. Accordingly, the ITO provided to the applicants, and to the court initially, was edited to remove any information that might tend to identify any of the tipsters.
18As set out in Garofoli (para. 79), where informants provide information that is relied upon in the ITO, the first stage of the challenge is to determine whether the edited ITO could support the issuance of the authorization. If not, then the Crown may seek to rely on Step 6 of Garofoli, that is, reliance on the unedited ITO, provided that judicial summaries of the edited material have been provided to the accused, and the reviewing judge is satisfied that those judicial summaries provide the accused with sufficient information to permit him/her to challenge the Crown’s position. In the latter situation, the test then becomes whether the addition of that information leads to a different result. In this case, as a matter of expediency, it was agreed that arguments would be made on both stages, rather than taking the time for a ruling to be made on the first stage, and then subsequently making argument on the second stage.
19Returning then to the approach to be taken when informants are involved, it is set out in R. v. Debot, [1989] 2 S.C.R. 1140. The approach has been referred to as “the three C’s”, that is, was the information provided by the informant compelling, credible and corroborated. It comes from the description of the approach used by Wilson J. in Debot, at para. 53 (QL):
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.
20What is meant by compelling, credible and corroborated is helpfully described in R. v. Greaves-Bisserasingh, 2014 ONSC 4700, where Code J. said, at para. 35:
It appears from Wilson J.’s reasons in DeBot, and from the subsequent jurisprudence, that the term “compelling” refers to considerations that relate to the reliability of the informer’s tip such as the degree of detail provided and the informer’s means of knowledge, that is, whether the informer made first-hand observations or merely relied on second-hand hearsay, rumour, or gossip. The term “credibility” would appear to capture considerations such as the informer’s motivation, criminal antecedents, and any past history of providing reliable information to the police. The term “corroboration” refers to any supporting information uncovered by the police investigation.
21It is at this point that I choose to turn to my evaluation of the information, and the informants, as set out in the edited ITO.
22As I have already indicated above, the identity of tipster #1 was unknown. As may be obvious from that fact, tipster #1 had no track record of providing information to the police. It may also be obvious from the anonymous status of tipster #1 that neither the RCMP, nor the INT, knew what tipster #1 did. In other words, they did not know if he worked for any of the bidders, or whether he worked for the Government of Bangladesh, or anything else about him. Indeed, because the identity of tipster #1 was unknown, no one knew, for certain, whether he was the same, or a different, person as tipster #2 or tipster #3.
23On this latter point, the respondent says that because the three tipsters expressed themselves differently, and because they had different email addresses, it is a fair assumption that they are different people. I do not agree with that submission. People do not necessarily express themselves in the same way, using the same words, when they communicate about something on different occasions. Also on this point, it is evident from the communications that English may not have been the tipsters’ first language and that fact would also affect their manner of expression. In terms of the email addresses, many people have more than one email address. In fact, it is an easy thing for someone to set up an email account for a specific purpose. While, in the end result, I do not consider that this consideration is particularly determinative of the issues raised on this application, it does sound a cautionary note regarding the nature, and source, of the information provided.
24Tipster #1 sent a number of emails to the World Bank. He attached, to some of those emails, various documents. One such document was described as a “complain”. It appeared in different versions. It is unknown who prepared this document. Consequently, there is no way of knowing whether the contents of the document are reliable. The World Bank responded to the emails from tipster #1 and asked follow-up questions. I believe it is fair to say that those questions went largely unanswered by tipster #1. Instead, he tended to respond by saying that the World Bank had access to, or could get access to, the bids and could make its own evaluation of them.
25In terms of the suggestion that corruption was involved in the process, the material supplied by tipster #1 generally referred to “rumours”. For example, in one document, it is put this way:
We have heard many rumours of corruption in the evaluation process for the CSC proposals submitted from five different shortlisted consultants. The latest rumours seem to be based on evidence, which we have not yet seen. If they are true, then it seems that the evaluation done by the special committee that was set up by the Bangladesh Government has not been done correctly. [3]
As can easily be seen from the above, the suggestion of corruption is based on rumours, on information that has not been seen, and is not said to be true, even by the author of the document, who is unknown.
26In some of his emails, tipster #1 directed the World Bank to specific people, by name, that he said the World Bank could contact to confirm the information that he was providing. There is no evidence that the World Bank spoke to any of those people.
27Lastly, with respect to tipster #1, the affiant attempts to bolster the credibility of tipster #1 by asserting:
I believe that if Tipster #1 was merely a disgruntled losing bidder, his allegations would be directed at the first place finishers, not another losing bidder. I believe there would be nothing to gain by discrediting SNC and yet he does, as does Tipster #2. I believe the reason for this is that it is the truth.
28There are a number of problems with this line of reasoning, not the least of which is that, when the affiant says that tipster #1 is discrediting SNC Lavalin, he fails to reiterate that this discrediting is based on nothing more than rumour and hearsay. Another is that the affiant has no basis for asserting that “there would be nothing to gain by discrediting SNC”. The affiant did not know even the identity of tipster #1, so it is not apparent what basis the affiant had to determine what tipster #1 would or would not stand to gain from his actions. Further, the fundamental assertion that, because SNC Lavalin was not in first place, there would be nothing to gain from discrediting SNC Lavalin, fails to take into account the very premise, that the affiant relies on in the ITO, that the central objective of the alleged corruption plan was to eliminate the first place finisher, by undermining its proposal, and thus leave SNC Lavalin in first place. If there was a fundamental flaw in Halcrow’s bid, that would give other bidders a very clear motive to discredit SNC Lavalin, who would step into first place. I note, on this point, that it turned out that tipster #2 was, in fact, a disgruntled competing bidder.
29The identity of tipster #2 was known to the INT. It was not known to the RCMP. While the affiant of the ITO spoke to tipster #2 by telephone on two occasions, there is no evidence that the RCMP did any investigation into the background of tipster #2 to determine his credibility or reliability, nor is there any evidence that the INT did so. What the INT did know about tipster #2 is that he had previously been involved in corruption. While that fact appears in the edited ITO, when the matter eventually got to Step 6 in the Garofoli analysis, it was revealed that tipster #2 was also engaged in corrupt practices with respect to the CSC process itself.
30The INT, and the affiant, used the involvement of tipster #2 in corruption to suggest that it enhanced the credibility of tipster #2, because it suggested that tipster #2 had familiarity with, and access to, the corrupt practices. I accept that point but only to a degree. I accept, for example, that if the police are investigating drug trafficking, no one is likely in a better position to provide useful information, for that investigation, than is another drug trafficker. However, one cannot treat that fact in isolation from the concomitant concerns that naturally arise from relying on a person, who acknowledges being involved in illegal activity, especially a competitor in the very illegal activity being investigated. The latter fact goes to the credibility, the reliability, and the motivation, of the individual, all of which are critical factors.
31Further, the information provided by tipster #2, as it related to SNC Lavalin and the applicants, was all second-hand information. Tipster #2 had no direct knowledge of the alleged corrupt conduct. Rather, he conveyed information to the INT, and to the affiant, that was based on what others had told him. While tipster #2 told the INT the identities of some of those sources, there is again no evidence that the INT ever spoke to any of those persons to determine if the information was correct. Certainly the RCMP never did so.
32Rather, what the INT did, and which was adopted by the affiant, was to say that the sources of the information were credible because tipster #2 viewed them as being credible. It should be self-evident that tipster #2 cannot bolster his credibility by vouching for the credibility of others whose credibility is, in turn, otherwise unknown.
33The identity of tipster #3 was unknown. Tipster #3 sent only a single email to the World Bank. The email is clearly based on rumour and supposition. For example, the email says:
It is known to all that the technical Evaluations are manipulated by the evaluation committee …
It was common rumour that HPT had quoted very high in the financial proposal.
34The email further says that “SNC is promising hefty corrupt payments”. There is no indication how tipster #3 purports to know this fact nor, given his anonymity, is there any reason to believe that he would be in a position to know it.
35The respondent asserts that the information provided “independently” by the tipsters can be used to corroborate each other. This assertion begins, of course, with the assumption that the tipsters are different people. I have already pointed out that there is an insufficient basis to safely draw that conclusion. In any event, I accept that informants can corroborate each other in certain circumstances. Normally, however, informants only corroborate each other if they have a proven track record and/or they provide a level of detail that would only be known to people who were in a position to directly learn that detail. The respondent relies on the latter form of corroboration, given that none of the tipsters had a track record of reliability.
36The nature of the details that the respondent relies on for mutual corroboration do not rise to the level of detail that can fulfill that function. For example, the respondent relies on the following:
For example, the information provided by the tipsters described: the bidding process for the contract; the fact that the process was rigged; the technical and financial rankings at different stages in the process; which companies had been short listed; that EPC and BCL were local sub-consultants for SNC; and that at different times different foreign public officials (Moshiur Rahman, Rafiqul Islam, Ferdous, and the Minister of Communications) exerted their influence in favour of different companies resulting in a reconstitution of the evaluation committee. [4]
37Taking those details individually, the bidding process was a matter of public knowledge. When I say public knowledge, I mean that it was either truly public information, or it was known to so many people that it was the equivalent of public knowledge. The fact that the process was rigged is the conclusion that the investigation desires to reach; it is not itself a fact. The technical and financial rankings at different stages in the process were also public knowledge. The same is true for which companies had been shortlisted, and it is true for the fact that EPC and BCL were local sub-consultants for SNC Lavalin. The fact that the evaluation committee was reconstituted was another matter of public knowledge. The assertion that it resulted from certain public officials exerting their influence is an allegation; it is not fact.
38By way of another example, the respondent relies on the following as additional corroboration:
The tipsters provided information that Mohammad Ismail, Ramesh Shah and Kevin Wallace worked for SNC and were Canadian nationals living in the GTA; that Mohammad Ismail was closely connected to a member of the BBA and that he had already spent $100,000 in his efforts to secure the contract. The tipsters provided certain contact information, including phone numbers, email addresses and the address of the company. The tipsters also knew that Mohammad Ismail was subsequently fired.
39All of this information, with the exception of the connection of Ismail and the $100,000, is again a matter of public knowledge. The alleged connection, and the expenditure of $100,000, are allegations; they are not facts. Further, these types of allegations do not emanate from all three tipsters. They are almost all recounted only by tipster #2.
40The respondent also submits that informants need not have a track record to be credible. Even anonymous informants may be relied upon. The respondent points to cases such as R. v. Plant, [1993] 3 S.C.R. 281 and R v. Shoghi-Baloo in support of that submission. However, in both of those cases, the reason why the anonymous informant was found to be reliable was because the police had independently confirmed some aspects of the information, that the anonymous informant had provided. In addition, in Shoghi-Baloo, the police had some limited confirmation of the credibility of the anonymous informant from another source. There are no similar confirmatory facts in this case.
41The respondent also points to various documents that the tipsters provided to the World Bank, as evidencing that the tipsters were directly involved in the bidding process. Two responses can be made to that submission. One is that all of these documents were matters of public record – public as I described my use of that term above. The other is that the fact that the tipsters may have been involved in the bidding process, in association with one or more bidders, does not mean that they would have knowledge of other bidders engaging in corrupt practices. With respect, the respondent’s position assumes the existence of the corrupt practice in order to use it as corroboration. That is reverse reasoning. Reliance on the fact that the tipsters may have been involved in the bidding process also fails to take into account the very real possibility that a competing bidder is fashioning these allegations solely to eliminate another bidder.
42The respondent also asserts that the police were able to confirm substantial portions of the tips. For example, the respondent says that the authorities corroborated the following information:
(a) Corruption is a problem in Bangladesh; (b) SNC has engaged in corrupt practices in the past; (c) Mashiur Rahman is the Prime Minister’s financial advisor; (d) Quazi Ferdous was a member of the evaluation committee; (e) The evaluation committee was reconstituted; (f) The financial and technical rankings of the short listed companies; (g) Mohammad Ismail, Ramesh Shah and Kevin Wallace worked at SNC; (h) According to SNC’s proposal all three were authorized to initial, sign and submit documents related to the proposal; and (i) Members of the BBA had travelled to Washington in March 2011.
Once again, this is nothing but a recitation of publicly known information. In one sense, it might be seen as confirming nothing more than the tipsters had access to the Internet.
43In response to this point, the respondent says that the police are not required to confirm every aspect of a tip, nor must any corroboration necessarily confirm the criminality alleged. The respondent relies on R. v. Caissey, 2008 SCC 65, [2008] 3 S.C.R. 451 in support of this assertion. The decision in Caissey does support the fact that the police do not need to corroborate the criminality alleged. It is sufficient if there is corroboration of some other specific details provided by the confidential informant so that there is reason to believe that the confidential informant is offering information of which he has direct knowledge, as opposed to simply recounting rumours. It is the totality of the circumstances that are to be assessed. That process is actually described in Garofoli, at para. 68 (QL):
(i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds. (ii) The reliability of the tip is to be assessed by recourse to “the totality of the circumstances”. There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including: (a) the degree of detail of the “tip”; (b) the informer’s source of knowledge; (c) indicia of the informer’s reliability such as past performance or confirmation from other investigative sources. (iii) The results of the search cannot, ex post facto, provide evidence of reliability of the information.
44Certain points from that test should be emphasised as it relates to this case. First is that the evidence of a tip, by itself, is insufficient to establish reasonable and probable grounds. Here, when the information provided in the ITO is critically examined, it turns out that there is very little that is provided, other than the hearsay and rumours that emanate from the tipsters. I use the plural in this instance even though, as I earlier pointed out, it is unknown if there are actually four tipsters or only two.
45Second, the requisite degree of detail, in the information provided by the informers, is lacking. There is nothing more than generalized allegations of corruption with virtually no detail that would be unique to the persons involved, as opposed to being the equivalent of rumour or gossip or speculation.
46Third, the source of the tipsters information, on the ITO as edited, is unknown. Indeed, in many instances it is simply referred to as rumour, or that it is “generally known”, or that it is “suspected”.
47Fourth, none of the tipsters have proven reliability based on past performance, and there is no independent confirmation of any of the information other than, as I have already said, generally available information.
48Fifth, one cannot use the fact (if it is the case) that the intercepted communications provided evidence of the corrupt practices. I have specifically not reviewed the information provided from the intercepted communications so as to not fall, inadvertently, into an “ends justify the means” analytical trap. In all cases, the focus is on the information available to the police at the time of the application rather than information that the police acquired after the original application was made: Morelli, para. 43; Garofoli, para. 68.
49The respondent also relies on evidence from two separate persons for corroboration that bear mention. The first person is a former accountant for SNC Lavalin, who apparently told the RCMP, in a completely separate and earlier investigation, about an alleged practice of SNC Lavalin keeping two sets of books respecting alleged corrupt practices in Africa. Three points should be made about his information as it was relayed to the RCMP. One is that the RCMP officer, who dealt with the accountant, apparently told the affiant that she did not believe that the accountant would have any reason to lie about SNC Lavalin. No foundation is provided for that belief. The affiant did not speak directly with the accountant about any of these matters, nor does it appear that the affiant explored, or tested in any way, the reason why his fellow officer did not believe that the accountant would have any reason to lie. Further, the accountant did not provide any information regarding SNC Lavalin being involved in corrupt practices in Bangladesh. At most, the accountant provided unproven allegations regarding alleged corrupt practices, some years earlier, and on a different continent. On this latter point, it appears that the information that the accountant did provide, about SNC Lavalin being allegedly involved in corrupt practices in Africa, was about twenty years old.
50The second person is a former employee, who worked for SNC Lavalin at some unspecified point in time. The sum and substance of his information was “that SNC is often approached to make bribes to obtain contracts, but that he does not participate in that activity”. That information amounts to nothing in terms of evidence to support reasonable and probable grounds. It does not even suggest that SNC Lavalin engaged in bribery, but only that it was approached about it. It is, however, an example of language being used that might trick the reader into believing the contrary.
51In a further effort to find corroboration, the ITO refers to an ongoing investigation in India that apparently involves SNC Lavalin. It does not reveal anything more than allegations that have not been proven. Once again, these allegations appear to relate to matters that occurred more than twenty years ago.
52Lastly on this point, the respondent relies on the travel histories of the applicants, Wallace and Shah, along with that of a former accused, Ismail. These histories are all directed at trying to connect one or more of these individuals to a meeting that tipster #2 said took place in Dubai. It is said that it was at this meeting that “the deal for the CSC” had been made. It is of some consequence that tipster #2 said that he knew this because “a foreign public official” told “someone” who told tipster #2. Tipster #2 also referred to a “rumour” that a World Bank official was present for this meeting, but he then discounted that same rumour.
53Directly after recounting this information, the affiant set out, in the next paragraph of the ITO, certain information regarding travel undertaken by the applicants, Wallace and Shah, and the former accused, Ismail. In each instance, the information did not establish where these individuals had been. All it revealed were dates on which they returned to Canada, through Toronto Pearson International Airport. The ITO, in the next paragraph, then sets out additional information, obtained by tipster #2 from a different source, that included the assertion that a high official from SNC Lavalin was at the Dubai meeting, and that Wallace “would definitely be” that person.
54This travel information had been obtained by the RCMP from the CBSA. What the affiant did not reveal, in the ITO, is the fact that CBSA has access to more detailed information regarding a person’s travel outside of Canada, which the RCMP had not obtained. The RCMP did ask for this information later (coincidentally on the same day that the first authorization was granted). When that detailed information was obtained in early June, it failed to demonstrate that Wallace was in Dubai at any point in time. Remarkably, the affiant never revealed this new information, either in the ITO filed for the second authorization, or in the ITO filed for the third authorization.
55In my view, the only reason for including this travel information in the first ITO was to lead the reader to draw the inference that Wallace was, in fact, in Dubai and thus provide direct corroboration for an essential allegation made by tipster #2. Indeed, in their factum, the respondent asserted that:
… it was not unreasonable to invite the authorizing justice for the first ITO to draw an inference that it was Mr. Wallace who travelled to Dubai. [5]
56The fact is that that was not a reasonable inference to draw and the affiant knew, or ought to have known, that it was not a reasonable inference to draw. Not only had tipster #2 not said when the meeting in Dubai took place, the RCMP had no information that Wallace had travelled to Dubai at any point in time. All that the RCMP knew was that, on March 20, 2011, Wallace returned to Toronto from some place outside of Canada.
57This is, in my view, precisely the type of language in an ITO that the Supreme Court of Canada decried in Araujo, that is, language that tricks the reader into believing something, the truth of which is, in fact, unknown. I repeat what LeBel J. said, at para. 47:
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.
58The respondent attempts to deflect the significance of this issue by asserting, based on R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, that the fact that information in an ITO may subsequently turn out to be false does not invalidate the authorization. The erroneous information is only of consequence, according to the respondent, if the affiant “knew or ought to have known that it was false at the time”. The problem for the respondent here is that the affiant knew, or ought to have known, that the inference he was leaving for the authorizing judge to draw was an inference that could not flow from the facts known to the affiant. It was improper for the affiant to create the circumstances, for an inference to be drawn, when he had no idea whether the inference was a true one, and thus could not have a reasonable belief as to its possible truth. That impropriety is heightened by the fact that the RCMP could have accessed information to determine whether the inference was a reasonable one, but did not do so, until after the authorization was obtained.
59I return to Code J.’s summary of the “3 C’s”. He described “compelling” as referring to considerations that relate to the reliability of the informer’s tip such as the degree of detail provided, and the informer’s means of knowledge, that is, whether the informer made first-hand observations, or merely relied on second-hand hearsay, rumour, or gossip. In this case, the information provided by tipsters #1 and #3 constitutes rumour and gossip. Neither tipster purported to have first-hand knowledge of the allegations that they recounted to the INT. Tipster #2 purported to have more in-depth knowledge, but it, again, was not first-hand information. It was all second-hand (or worse) hearsay obtained from sources that only tipster #2 vouched for. Neither the INT nor the RCMP ever confirmed any of the information with any of those sources.
60Even the affiant acknowledged these failings in the information provided by the tipsters later in the ITO, albeit then only as it related to the requirement of investigative necessity. The affiant said:
… for the most part, they [the tipsters] only have hearsay information and are not directly involved in the efforts of the Principal Known Persons to commit the offences. [6]
61The term “credibility” refers to the informer’s motivation, criminal antecedents, and any past history of providing reliable information to the police. None of the tipsters had a history of providing reliable information. The motivation and criminal antecedents, if any, of tipsters #1 and #3 were unknown. The motivation and criminal antecedents of tipster #2 were known, however. As was revealed at the Step 6 stage, tipster #2 was involved with a competing bidder and thus had a strong motivation to discredit another bidder, such as SNC Lavalin. Further, tipster #2 acknowledged being involved in his own corrupt efforts in respect of the CSC, and thus his honesty and credibility are open to question. Still further, it was acknowledged that tipster #2 had a motivation to deflect attention to others regarding his corrupt practices, as was set out in the Step 6 judicial summary.
62The term “corroboration” refers to any supporting information uncovered by the police investigation. I have spent some time above reviewing the information that is said to provide corroboration and which, in my view, fails to do so. Of particular importance on this aspect is the fact that the RCMP did not undertake any independent investigation of any of the allegations made. They did not speak with any of the persons who were identified by the tipsters as being in a position to provide direct information regarding the allegations. Indeed, the RCMP did not even speak directly with either tipster #1 or tipster #3, nor did they actually meet with any of the tipsters.
63Further, given the anonymity of both tipsters #1 and #3, the fact that they recounted only second-hand or hearsay information, and the fact that there was no information regarding their backgrounds, motivations or criminal antecedents (if any), they cannot provide any corroboration one for the other or, more importantly, for tipster #2. That leaves tipster #2, in the same position as an informant to which Paciocco J. made reference in R. v. Floyd, 2012 ONCJ 390, at para. 79:
He remains an untried informant, who there is reason to believe may have criminal antecedents, and whose information rests without meaningful corroboration.
64This is also not a situation where “weaknesses in one area may, to some extent, be compensated by strengths in the other two”: Debot at para. 53 (QL). None of the areas provide any appreciable level of strength such that they could bolster the others.
III: The ITO after Step 6
65My analysis, to this point, has melded the review of the edited ITO and the review of the unedited ITO. I have done so, in part, as a matter of expediency and, in part, because the additional information revealed by the unedited ITO was limited.
66Perhaps as a consequence of the approach that I have taken, I should make it clear that the edited ITO alone would not have provided reasonable and probable grounds to believe that the alleged offence had taken place. The fact that almost all of the relevant information was based on four unproven tipsters, two of whose identities were unknown, and for which there was no direct corroboration in any material sense, does not permit of any other conclusion.
67That then made the information, that had been provided in the ITO regarding the backgrounds of the three tipsters, and any related corroborating information, of great importance. To add that material into the review, the respondent provided judicial summaries of the edited material as contemplated by Step 6. I reviewed those judicial summaries against the unedited ITO and asked for certain additional information to be provided, to which the respondent agreed.
68The information that had been edited out of the ITO, as revealed through the judicial summaries, while necessary to protect the identity of the tipsters, did not add much in terms of any of the “3 C’s”. Indeed, the information revealed was almost entirely directed at tipster #2. The revealed information, that was of consequence, included the involvement of tipster #2 with a competing bidder, his involvement in corrupt practices with respect to the Padma Bridge CSC, and his perceived motivation to deflect attention to others. Other information included the names and/or positions of persons who provided information to the tipster #2, and tipster #2’s belief in the credibility of those persons. Whether that belief is well-founded is unknown, since neither the RCMP nor the INT ever spoke to any of these persons to confirm it.
69In the end result, the unedited ITO does not rectify the fundamental failings in the information that was provided in support of the request for the Part VI authorization. It does not add information of substance that would assist in establishing the necessary “3 C’s”. In addition, the misleading information regarding the travel of Wallace, Shah and Ismail, and the new information that eliminates the very inference that was sought to be drawn from that as a central piece of corroboration, leaves an insufficient basis upon which the authorizing judge could have concluded that there were reasonable grounds to believe that the offence had been committed.
70I repeat that there is a high standard to be applied to satisfy the constitutional requirements for an authorization to issue to intercept private communications. Mere suspicion of criminal activity is not sufficient. This fact has been made clear repeatedly by the Supreme Court of Canada in their decisions dealing with this subject. For example, in Duarte, La Forest J. said, at para. 24(QL):
It can, I think, be seen that the provisions and safeguards of Part IV.1 [now Part VI] of the Code have been designed to prevent the agencies of the state from intercepting private communications on the basis of mere suspicion.
and further, at para. 31(QL):
The Charter, it is accepted, proscribes the surreptitious recording by third parties of our private communications on the basis of mere suspicion alone.
71The fact that a particular investigation may be difficult, does not lower the standard that must be met in order to obtain a Part VI authorization. Reduced to its essentials, the information provided in the ITO was nothing more than speculation, gossip, and rumour. Nothing that could fairly be referred to as direct factual evidence, to support the rumour and speculation, was provided or investigated. The information provided by the tipsters was hearsay (or worse) added to other hearsay.
IV: Investigative necessity
72The applicants assert that the ITO fails to set out sufficient grounds for a conclusion that investigative necessity was made out in this case. They point to the fact that the effort to obtain a Part VI authorization began very shortly after the RCMP was first made aware by the INT of the concerns regarding possible bribery.
73There are three possible routes that the police can take to establish investigative necessity: (i) other investigative procedures have been tried and have failed, (ii) other investigative procedures are unlikely to succeed or (iii) 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: Criminal Code, s. 186(1)(b). It is the second of these three routes that is invoked in this case.
74As the respondent points out, a Part VI authorization is not an investigative technique of last resort. I accept that the police do not have to show that they have tried all other forms of investigation, before seeking a Part VI authorization. What the police do have to establish, however, is that, practically speaking, there is no other reasonable means of investigating the offences concerned: Araujo, at para. 37. The test for investigative necessity is a stringent one. It must be so in order to protect the privacy rights of individuals. It is a test of necessity, not of expediency: Araujo, at para. 39.
75In the section of the ITO dealing with investigative necessity, there are a series of conclusory statements made by the affiant. In some instances, conclusory statements relating to aspects of this issue may be acceptable, because the foundation for the statement will be self-evident. For example, saying that using undercover operatives is unlikely to be successful when investigating an established gang, because of the close-knit nature of the organization and the risk that is posed, will not likely be controversial.
76However, in this case, conclusory statements are offered where the basis for them is not obvious. For example, search warrants are discounted seemingly based solely on the twenty year old evidence of the former accountant about two sets of accounts. I note that many competition cases are instigated based on search warrants and those types of offences (e.g. bid rigging, price fixing) are not unlike the nature of the offence here. Undercover operatives are rejected by the affiant, for vague reasons, and yet there is no evidence that any effort was made to see if the use of an undercover agent might be a reasonable prospect. No effort was made to enlist any of the tipsters in that role, nor was any effort made to determine if any of the persons, to whom the tipsters had referred, might be open to acting in that role. In fact, the affiant only refers to the use of undercover operatives as a route to be used after the Part VI authorization is obtained.
77Yet another example is where the affiant says “I believe that people aware of the offences in Bangladesh are not likely to provide witness interviews to the police”. [7] No foundation is provided for this statement, nor is it apparent that any effort was made by the RCMP, or the INT, to determine if any such persons would be willing to be interviewed, or otherwise provide assistance.
78While it is undoubtedly true, as the respondent submits, that when it comes to an evaluation of the effectiveness of traditional investigative techniques, “police officers probably know more about such matters than most judges”. That reality does not meant that the court can, or should, delegate its determination, of whether this second requirement for a Part VI authorization is met, to the affiant. The police were required to demonstrate that other investigative techniques were either clearly not going to be successful, or had been tried but failed. While I accept that some of the traditional investigative techniques would be unworkable, or not especially productive, for this type of an investigation (e.g. surveillance, tracking devices), others had not proven unsuccessful. Indeed, they had not been tried, or even explored.
79The authorizing judge had to be satisfied that other investigative procedures were “unlikely” to succeed. The term “unlikely” is not to be read in a weak way: Araujo, at para. 28. Rather, the authorizing judge must, in the words of LeBel J. in Araujo, at para. 29:
… remember that the citizens of his country must be protected against unwanted fishing expeditions by the state and its law enforcement agencies. Parliament and the courts have indeed recognized that the interception of private communications is a serious matter, to be considered only for the investigation of serious offences, in the presence of probable grounds, and with a serious testing of the need for electronic interception in the context of the particular investigation and its objects (cf. Smyk, supra, at p. 74). There must be, practically speaking, no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry.
80The contents of the ITO failed to establish that there were no other reasonable ways to investigate the allegations being made by the tipsters. There was no “serious testing” of the bald conclusions made by the affiant regarding this second requirement for an authorization. Consequently, I conclude that the requirement of investigative necessity was not established by the ITO for the first authorization.
V: Section 24(2) of the Charter
81Given my conclusion that the ITO, sworn May 24, 2011, did not provide a sufficient basis for the issuance of the first authorization, I must consider whether the evidence obtained, as a consequence of the authorization, ought to be excluded under s. 24(2) of the Charter. Given that the private communications of the applicants were intercepted without proper authorization, the applicants have established that their rights against unreasonable search, under s. 8 of the Charter, were violated.
82Where an accused’s rights are breached, the remedy, rather than automatic exclusion of the evidence, is left to be determined under the three step test articulated by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The Court must assess the effect of admitting the evidence on society’s confidence in the justice system having regard to three things: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits.
83As McLachlin C.J.C. and Charron J. said in Grant, at para. 71:
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.
84I choose to deal with the three factors in reverse order. I accept that society has an interest in the adjudication of this case on its merits. That is true with respect to any criminal offence. However, the level of that interest will vary with the nature and circumstances of the offence. I do not view society’s interest, in this case, as rising to the level that would be evident in other more serious criminal offences, such as murder, for example. I believe that the respondent greatly overstates the seriousness of this conduct when they say, in their factum:
The allegations concern conduct that is a scourge in our society. Corruption undermines the socio-economic fabric of society, putting public trust at risk, driving prices up and reducing competition. The harm done by corruption is devastating.
85I note that the harm to which the respondent then refers is that the building of the Padma Bridge was delayed. It seems to me to be difficult to fairly characterize that harm as “devastating”. Indeed, there is little evidence as to the extent of any delay and the ramifications of it. In any event, just because an offence is serious, does not mean that this factor will always favour inclusion of the evidence. As McLachlin C.J.C. and Charron J. said in Grant, at para. 84:
Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.
86On the second factor, the respondent fairly concedes that the Charter-infringing state conduct had a significant impact on the Charter-protected interests of the accused in this case, because it involves the violation of an individual’s rights that attract a high expectation of privacy, that is, their private communications. On this point, it is worth repeating the oft-quoted words of LaForest J. in Duarte where he said, at para. 22 (QL):
A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning. As Douglas J., dissenting in United States v. White, supra, put it, at p. 756: “Electronic surveillance is the greatest leveller of human privacy ever known.” If the state may arbitrarily record and transmit our private communications, it is no longer possible to strike an appropriate balance between the right of the individual to be left alone and the right of the state to intrude on privacy in the furtherance of its goals, notably the need to investigate and combat crime.
87The first factor is the seriousness of the Charter-infringing state conduct. The respondent contends that the conduct in this case was not “deliberate or the result of a wilful or reckless disregard” by the police of the applicants’ rights. While I may not be prepared to go so far as to find that the RCMP did not proceed in good faith in this case, there are aspects of the ITO that are troubling.
88One is the number of instances in the ITO where the affiant offers his own opinion on the strength of the allegations. It is, in my view, inappropriate, as a general proposition, for the affiant to take on the role of advocate for the issuance of the authorization sought, which is what an affiant does when s/he promotes the strength and validity of the case that s/he is making. It is for the authorizing judge to make that determination, not the affiant.
89By way of example, the affiant, early on in the ITO, says:
Much of the information provided from these people [the four tipsters] is compelling and corroborated. [8]
90A short time later, the affiant says:
... I believe that when similar specific allegations are being made by four different independent and compelling sources, the allegations reach a threshold of reasonable grounds to believe. [9]
91None of this type of advocacy has any place in an ITO. An affiant has a duty to make full, frank, and fair disclosure in the ITO. The reason for that is obvious. When seeking an authorization on an ex parte basis, there is no one present to argue the other side. There is no one to point out the gaps in the information, or weaknesses that may not be so apparent on a simple reading of the ITO. This obligation that rests on the affiant is aptly described in United States of America v. Friedland where Sharpe J. said, at para. 27:
For that reason, the law imposes an exceptional duty on the party who seeks ex parte relief. That party is not entitled to present only its side of the case in the best possible light, as it would if the other side were present. Rather, it is incumbent on the moving party to make a balanced presentation of the facts in law. The moving party must state its own case fairly and must inform the Court of any points of fact or law known to it which favour the other side. The duty of full and frank disclosure is required to mitigate the obvious risk of injustice inherent in any situation where a Judge is asked to grant an order without hearing from the other side. [10]
92In my view, the affiant failed to meet that standard in the manner in which he set out the information in the ITO. This was especially critical in this case because of the nature of the information being relied upon, that is, four tipsters with no proven track records and with little, if any, direct corroboration. While the affiant does mention the fact that the tipsters were unproven, and were relying on information that he does not know the source of, the affiant often immediately undermined the significance of that fact by offering his countervailing opinion. For example, in dealing with tipster #1, the affiant said:
Tipster #1 is anonymous even to the World Bank. I do not know how he knows any of the information that he has provided, however, I believe it is reliable based on the corroboration as provided by Paul Haynes and the other tipsters. [11]
The fact is that neither the INT, nor the other tipsters, had actually provided any real corroboration.
93All of this might be excused as mere failings in draftsmanship, if it were not for the issue involving the travel of the applicants, Wallace and Shah. As may be apparent from my recitation of this issue earlier, I find the manner in which that information was treated to be very problematic. I cannot find any innocent explanation for why that information was included in the ITO, in the manner that it was, especially when it had not been checked out against the more detailed travel information that the RCMP knew existed and, indeed, subsequently obtained. That would be serious enough, but the matter is elevated to an entirely different level by the failure of the affiant to mention the fact, that the inference was disproved, in the two subsequent ITO’s. The respondent’s concession that it would have been “preferable” if the affiant had done so, fails by a wide margin to reflect the seriousness of the omission in an ex parte application for a Part VI authorization.
94In the end result, my balancing of each of these factors leads me to the conclusion that, considering all the circumstances, admission of the evidence obtained by the first authorization would bring the administration of justice into disrepute. To conclude otherwise would countenance a serious invasion of privacy based on nothing more than suspicion and, thus, justify what amounts to little more than a fishing expedition. As McLachlin C.J.C. and Charron J. said in Grant, at para. 75:
However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: [citations omitted]
As I earlier noted, the parties agree that the conclusion on the first authorization directs the conclusion on the second and third authorizations.
VI: Conclusion
95The Authorizations to Intercept Private Communications issued on May 24, June 23, and August 8, 2011 lacked the requisite grounds for their issuance. Consequently, the Authorizations were issued in violation of the applicants’ s.8 Charter right to be free from unreasonable search. As a consequence, an order is made excluding all of the private communications intercepted under the Authorizations from the evidence to be tendered at trial.
NORDHEIMER J. Released: January 6, 2017
Footnotes
[1] I heard this application in my capacity as the case management judge for this proceeding appointed pursuant to s. 551.1 of the Criminal Code. [2] As was the case in the ITO, and in the material filed by all parties on this application, the male gender was used, as a convenience, to describe the tipsters. Its use is not intended to describe the actual gender of any of the tipsters. [3] Ohler Affidavit, Applicants’ record, Tab C3, p. 186 [4] Respondent’s factum, para. 42 [5] Respondent’s factum, para. 101. [6] Information to Obtain sworn May 24, 2011 at para. 106. [7] Information to Obtain sworn May 24, 2011 at para. 112. [8] Information to Obtain sworn May 24, 2011 at para. 5. [9] Information to Obtain sworn May 24, 2011 at para. 9. [10] Referred to, with approval, in Araujo at para. 46. [11] Information to Obtain sworn May 24, 2011 at para. 41.