ONTARIO SUPERIOR COURT OF JUSTICE
CITATION: R. v. Ader, 2017 ONSC 4643
COURT FILE NO.: 16-30357
DATE: 20170811
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ALI OMAR ADER
Croft Michaelson and Xenia Proestos, for the Respondent
Trevor Brown, for the Applicant
HEARD: April 3-17, 2017
decision on garofoli application
R. Smith J.
[1] The Applicant is charged with taking Amanda Lindhout (“Amanda”) hostage in Somalia with the intention of inducing a ransom to be paid as a condition of her release. She was taken hostage on August 23, 2008 and was held by her captors for almost 15 months until her release on November 25, 2009.
[2] The Applicant is an individual who, using the name Adam or Adan, allegedly communicated ransom demands and conducted negotiations for the hostage takers during much of Amanda’s captivity.
[3] This case involves deciding whether telephone communications demanding and negotiating a ransom payment from the Government of Canada, while threatening to harm the hostage, are expected to be private communication as defined in s. 183 of the Criminal Code of Canada (the “Code”). In addition, the Court must decide whether a justice could have issued the authorizations to intercept communication between the alleged hostage taker and Amanda’s parents.
[4] These charges arose out of an investigation known as “Project Slype”, a law enforcement effort involving the Royal Canadian Mounted Police (“RCMP”). Over the course of 8 years, RCMP investigators applied for, and were granted, 17 different Part VI authorizations to intercept private communications. The first 15 authorizations were “one party consent” wiretap applications granted under s. 184.2 of the Code.
[5] The Applicant is seeking to exclude all wiretap evidence obtained as a result of the s. 184.2 authorizations, as well as the evidence obtained without authorization under the “emergency wiretap” provision of s. 184.4 of the Code. The Applicant is also seeking the exclusion of a series of intercepts obtained without prior judicial authorization as part of an undercover operation before Authorization #9 was granted. These exclusions are sought under sections 8 and 24(2) of the Charter.
Issues
[6] The Applicant opposes the admissibility of the intercepted communications and his application has raised the following issues:
a) Did the Applicant have a reasonable expectation of privacy in his phone calls to Amanda’s parents demanding a ransom from the Canadian government?
b) Are the “Emergency” interceptions made pursuant to s. 184.4 of the Code admissible?
c) Could the Justice have issued the pre-release Authorizations # 1 to # 8?
d) Could the Justice have issued the post-release Authorizations #9 - #14?
Summary of the Facts
Contacts while held hostage
[7] In August 2008, Amanda Lindhout, a Canadian citizen, and Nigel Brennan (“Brennan”), an Australian, travelled to Somalia. Amanda and Nigel were freelance journalists who intended to report on displaced persons camps near Mogadishu.
[8] On August 23, 2008, Amanda, Nigel and three Somalians (their cameraman/Translator, driver and driver/unarmed security guard) were taken hostage by an unidentified group of gunmen, masked and armed with assault rifles while traveling to a displaced persons camp.
[9] The hostages were told that they would be meeting the “commander.” Later that same day, Amanda and Nigel met the Applicant, who introduced himself as “Adam” and identified himself as “the commander” of the hostage-taking group.
[10] Shortly after their first meeting, the Applicant returned and advised Amanda that she and Nigel would be held for ransom. Amanda responded that they might as well kill her, as her family had no money and her government would not pay a ransom. The Applicant said their families would have 24 hours to pay, and if they did not pay, they would be killed. He obtained contact information from Amanda and Nigel for their families.
[11] On August 24, 2008, John Lindhout (Amanda’s father) received a voice message on his telephone answering machine at his residence in Alberta advising that Amanda had been taken hostage and was being held for ransom stating:
Okay, my name is Adam, I am from Mogadishu. Amanda is in our hands…Call me, at this time it is 6, 6 am… You can call me 0025215379037 Goodbye. And we want from you one and a half million dollars.
[12] The Brennan family in Australia received a similar voicemail about their son shortly thereafter. “Adam, is also referred to throughout the investigation and in this application as “Adan” or “Osman”, is alleged to be one and the same as the Applicant, Ali Omar Ader.
[13] Subsequent to the call from “Adam”, the Lindhout family contacted the Canadian Department of Foreign Affairs and international Trade (DFAIT) who in turn informed the RCMP.
[14] At the time of the kidnapping, Somalia was in a state of civil and political unrest due to the continued presence of armed militias, including Al-Shabaab. The Transitional Federal Government’s (TFG) only had limited control over small segments of the country. At that time, there was no official Government representation by any Western country in Somalia. As a result, all Canadian political and consular support for Somalia was effected out of the Canadian High Commission in Nairobi, Kenya.
[15] The RCMP, through Lorinda Stewart (Amanda’s mother and spokesperson for the Lindhout family) began a negotiation process with “Adam”, who is alleged to have identified himself as the sole spokesperson and a commander representing the group holding Amanda and Nigel. With support and direction from RCMP handlers, Stewart conducted release negotiations with “Adam.” Her communications were intercepted by the RCMP under the emergency wiretap provisions of the Code and through a series of Part VI of Code “One Party Consent” authorizations granted pursuant to s. 184.2 and 184.3 of the Code.
[16] Throughout their captivity, “Adam” is alleged to have repeatedly communicated that they would not be released from custody until the demands for ransom payment were met. Following her release, Amanda was interviewed and provided details about her captors, including “Adam.” Amanda said she saw “Adam” four times in the first three months of her captivity, and after that only heard him on the telephone.
[17] “Adam” is alleged to have uttered several threats, stating that the hostages would be harmed or killed unless the ransom was paid. “Adam” further stated that the members of the group holding Amanda and Nigel were friends of his, that the members were poorly educated and that they were extremely dangerous.
[18] “Adam” reiterated on several occasions that he was the individual the families needed to deal with in order to have Amanda and Nigel released from custody. “Adam” was steadfast in demanding a ransom which fluctuated between $1.5 million USD and $5 million USD.
[19] Two calls relevant to this application were intercepted under Authorization #2. The Applicant called Stewart and had her speak directly to Amanda and later, both he and Amanda insisted to Stewart that the government was to pay the ransom and that the hostage-takers did not want money from the family.
[20] Adam was present on one occasion in September 2008 when a proof-of-life video was filmed. Adam attended the house where the hostages were being held with other leaders of the group, and they demanded Amanda take part in a video. Amanda recalled that Adam had prepared a script for her to memorize and read. Amanda stated that they were filmed and that they read their scripts. Amanda recalls that Adam operated the camera. In statements he later made to undercover police officers, the Applicant admitted that he had filmed the video and delivered it to Al Jazeera.
[21] On September 16, 2008, the proof-of-life video was broadcast on Al Jazeera television. It depicted Amanda and Nigel seated in front of a group of men holding assault rifles with scarves covering their faces. Amanda recalls being told to urge the government to pay the ransoms for her release.
[22] On November 2, 2008, the Applicant expressed frustration with dealing with rotating negotiators in Nairobi: “I can understand that they are intelligence but what is this reason after two or three, four weeks it’s another person. On November 28, 2008, the Applicant confirmed to Stewart that the supplies she had sent to the hostages had been delivered. The next time the Applicant and Stewart spoke was on December 13, 2008.
[23] On December 13, 2008, Amanda was awakened in the middle of the night and driven into the desert by members of the group. She was taken out of the car, forced to her knees, and told that they planned to behead her. She recalled someone having a knife. At the height of Amanda’s distress, a call was made via the cellular phone of the house manager to Adam who connected Amanda to her mother. This call was intercepted and recorded by the police. In the call, Amanda told her mother that the group had decided to give her family one week to pay the money or they would kill her.
[24] Approximately 10 minutes before this call, the Applicant had contacted Amanda’s mother. He said, “My friend has said to me that you should talk to Amanda but we have little time.” Ten minutes later, he called Stewart and said they had little time. He said that she should not waste her time and not waste their time. He then connected her with Amanda after speaking briefly to another individual. The Applicant can be heard prompting Amanda to “tell her”; Amanda then tells her mother about the threat to kill her if the ransom is not paid within one week.
[25] The Applicant sent an email to Stewart on January 14, 2009 with the subject: “Danger is coming soon to Amanda and Nigel if you don’t pay the ransom we want!!!!!” In the message, he clarified the ransom demand was 2.5 million dollars.
[26] In July of 2009, after 11 months in custody, the Lindhout and Brennan families hired a private company, Andrew Kain Enterprises (AKE), to negotiate with the hostage takers. AKE is a private contractor based out of London, UK. One of the services provided by AKE is the negotiation of hostage and ransom situations up to and including the release of hostages and the transfer of money.
[27] On November 14, 2009, AKE representatives traveled to Mogadishu and effectively negotiated the ransom payment with the hostage takers. As a result of these negotiations, Amanda and Nigel were released in Somalia on November 25, 2009.
[28] Amanda indicated that “Adam” and an individual known to her by the name “Ahmed” were in charge of the group and had introduced themselves as “commanders.” Amanda would later explain that “Adam” was not a “commander” as he had introduced himself, but rather part of the hierarchy of the group.
[29] Around the time that the ransom payment negotiations were being concluded, Amanda and Nigel were visited by “Ahmed”, who said that if they were prepared to personally make up the shortfall in the ransom, it might help facilitate their release. Amanda and Nigel, therefore, both signed written agreements promising to pay large sums of money after they were released from captivity.
[30] Upon her release from captivity, Amanda provided detailed statements to the RCMP outlining the events leading up to the hostage-taking and details of the period during which she was held in captivity. Amanda described incidents of repeated physical and sexual assaults suffered by her at the hands of her captors as well as physical assaults suffered by Nigel.
Post Release Contact and Undercover Operation
[31] Beginning on January 25, 2010, Lorinda Stewart received three telephone calls from “Adam.” An undercover operation was initiated with the goal of identifying “Adam” and possibly other individuals involved in the kidnapping of Amanda and Nigel. Investigators believed “Adam” to be an active conspirator and the main communicator/negotiator for the hostage taker group who held Amanda and Nigel. Based on the evidence gathered through the operation, investigators believe “Adam’s” true name to be Ali Omar Ader.
[32] The investigative plan called for a one-party consent authorization allowing for the interception of communications between A.K., the Applicant, and any of his confederates. Prior to obtaining Authorization #9, A.K. made several attempts to establish contact with “Adam.” On June 25, 2009, he spoke to “Adam” three times and on June 29, 2009, he spoke to “Adam” twice. Another investigator (and the affiant for Authorizations #11-14), Cst. Matt Gallant (“Gallant”), and Staff Sergeant Andre Hebert recorded and listen to the calls, made by A.K. before the authorization #9 was obtained.
[33] Initially, when he first spoke to the Applicant, A.K. held himself out as a representative of Amanda and her mother. In the June 25th and June 29th calls, the Applicant described himself as a mediator during the hostage-taking and told A.K. that he had “letters” Amanda had written while in captivity. He offered to sell them to the family.
[34] A.K. made notes of his communications with “Adam” at the time of the calls and later reviewed the unauthorized recordings to supplement his notes. Sgt. Vanderstoop included a contact log in affidavit #9 at paragraph 29, which had been prepared by Cst. Gallant based on his review of the recordings. Sgt. Vanderstoop was not aware that these communications had been intercepted before the authorization had been granted. Sgt. Vanderstoop read the text of the log to A.K. who confirmed it accurately reflected the conversations he had with “Adam.” In affidavit #10, Sgt. Vanderstoop summarized these communications based on information provided to him by A.K..
[35] Authorization #9 was granted on July 9, 2010, identifying A.K. as the consenting party. During the implementation period covered by Authorization #9, the Applicant and A.K. communicated by email and over the phone about Amanda and events involving the hostage-taking. In these calls, the Applicant told A.K. he had Amanda’s “letters” and would email samples of them. The Applicant went on to email those “letters” that Amanda later confirmed she had written while in captivity.
[36] The undercover scenario quickly evolved to A.K. portraying himself as someone with connections in the publishing industry who could facilitate a “book deal.” The Applicant described a book he was writing about Somalia that would make him a millionaire. A.K. purported to be able to work with him to have the book published.
[37] On December 9, 2010, the Applicant revealed his true identity as Ali Omar Ader to A.K. in an email communication. On December 11, 2010, the Applicant emailed A.K. and confirmed that his real name was Ali Omar Ader. He also emailed A.K. copies of his Bachelor of Arts degree and his passport. Both of these documents were in the name of Ali Omar Ader.
Interception of Private Communications
[38] On August 24, 2008, after being made aware of Amanda’s kidnapping and the message left on John Lindhout’s answering machine, the RCMP immediately took steps to intercept the phone line at Mr. Lindhout’s residence pursuant to the emergency wiretap provision in s. 184.4 of the Code.
[39] Commencing August 25, 2008, eight separate applications under s. 184.2 of the Code were sought and granted (Authorizations #1-8). Authorization #8 expired November 30, 2009, five days after Amanda’s release.
[40] After Amanda’s release on November 25, 2009, the investigation into her kidnapping continued, and ultimately an RCMP undercover operation targeting “Adam” and his associates was implemented. Between July 9, 2010 and April 13, 2015, a further nine Part VI authorizations were sought and obtained.
Facts Relating to the Authorizations at Issue
Emergency and Pre-Release Interceptions #1 to #8
[41] In this case, the interception process was commenced under the emergency wiretap provision in s. 184.4 of the Code on August 24, 2008, shortly after the RCMP became aware of the message left on John Lindhout’s answering machine. A determination was made to intercept the telephone line at John Lindhout’s residence. At 9:18 p.m. that evening Cst. Vanderstoop requested Sgt. Dan Diemert of the RCMP to commence interceptions at the Lindhout residence as soon as possible under to the emergency wiretap provisions in s. 184.4 of the Code. Sgt. Vanderstoop was assigned to prepare a one party consent authorization to be brought before a Justice the following day. By 1:14 a.m. on August 25, the wiretap was up and the line being monitored live by an assigned monitor.
[42] Shortly before noon on August 25, 2008, Cst. Vanderstoop attended before the Honourable Justice Bridges of the Alberta Provincial Court of Justice for the first s. 184.2 one party consent wiretap application in this investigation (“Authorization #1”). Justice Bridges granted the Application, which authorized the requested interceptions between August 25, 2008 and October 24, 2008.
[43] While Vanderstoop was in chambers with Justice Bridges seeking this first authorization, the RCMP intercepted three calls between “Adam” and Lorinda Stewart on the Lindhout line. Cst. Vanderstoop’s affidavit failed to disclose the fact that wires were already up and running pursuant to the emergency wiretap provisions and that the RCMP intended to intercept any incoming calls until the Authorization was granted.
[44] Following the granting of Authorization #1, wiretapping continued for a number of hours, ostensibly under the authority of this judicial order. However, Cst. Diemert, the officer in charge of the installation and monitoring of the wiretap, reviewed a copy of Authorization #1, and realized that Authorization #1 was in fact invalid as it exceeded the allowable 60 days for such an interception. He advised Cst. Lesage, who was overseeing the investigation, of this fact, and was instructed to continue intercepting communications nonetheless, purporting to rely by default on the emergency wiretapping provision in s. 184.4 of the Code. The RCMP determined to continue interceptions under s. 184.4, until the next day when a new, valid authorization could be sought.
[45] The following day, August 26, 2008, Cst. Vanderstoop made an application by telecommunication pursuant to section 184.3 of the Code for a new s. 184.2 authorization. Justice Bridges granted the Application, which authorized the requested interceptions between August 26, 2008 and October 23, 2008 (“Authorization #2”). Neither Cst. Vanderstoop nor Justice Bridges realized that a tele-authorization under s. 184.3 of the Code can only authorize interceptions for a maximum period of 36 hours. Interceptions continued nonetheless until September 5, 2008, when Cst. Vanderstoop sought Authorization #3.
[46] On September 5, 2008, Cst. Vanderstoop attended before the Honourable Justice Sullivan of the Alberta Provincial Court of Justice for the third s. 184.2 one party consent wiretap application in this investigation (Authorization #3). At this point in the investigation, the RCMP had decided to move the residential line of John Lindhout (used by Stewart to communicate with the kidnappers) from his home to a covert location at 3939-50 Avenue, Sylvan Lake, Alberta, used solely for the ongoing investigation. Justice Sullivan granted the Application, which authorized the requested interceptions between September 5, 2008 and November 3, 2008.
[47] On November 1, 2008, Cst. Vanderstoop attended before the Honourable Justice Sullivan of the Alberta Provincial Court of Justice for the fourth s. 184.2 one party consent wiretap application in this investigation (Authorization #4). Justice Sullivan granted the Application, which authorized the requested interceptions between November 4, 2008 and January 2, 2009. The unsealed wiretap packet reveals that the jurat in Affidavit #4, filed in support of this authorization, bears an erroneous date and was unsigned.
[48] Between January 2, 2009 and July 17, 2009, Cst. Vanderstoop attended before Justices of the Alberta Provincial Court of Justice on four further occasions, and was granted Authorizations #5 through 8. Each affidavit filed in support of these authorizations summarized and built on the information gleaned from wiretapping done further to the authorization that preceded it. Authorization #8, granted on July 17, 2009, authorized the requested interceptions between July 17, 2009 and November 30, 2009.
Post-Release Interceptions #9 to#15
[49] Commencing January 25, 2010, Adam is alleged to have made three telephone calls to Lorinda Stewart’s residence. During one of these calls, Adam left a voice message requesting Amanda’s contact information. The RCMP decided to commence an undercover operation, and began planning to do so, with the intention of having an undercover officer contact Adam while posing as Amanda’s communications consultant. The investigative plan for this approach called for a Part VI one party consent authorization to be in place prior to the initial call being made.
[50] On June 24, 2010, A.K. posed as Amanda’s communications consultant and contacted Adam by telephone for the first time. A.K. and Adam had several conversations between June 24, 2010 and July 9, 2010, all of which were intercepted and recorded by the RCMP in the absence of any prior judicial authorization. Cst. Matt Gallant, live monitored these calls, listening in via earpiece. He made notes of the calls as they took place, and later supplemented these notes by reviewing the recordings of those conversations, ultimately preparing a summary known as a “contact log”.
[51] The Crown seeks to introduce a number of the conversations intercepted between June 24 and July 9, 2010, notwithstanding their unlawful interception.
[52] A.K. also made notes of his calls, later supplementing them by reviewing the recordings of the conversations. Despite his knowledge that the investigative plan called for a Part VI one party consent authorization to be in place before the first call to the target, A.K. and Cst. Gallant proceeded with the first and subsequent calls and recorded the conversations. They did so in the belief that A.K. was permitted to record his own calls as a “consenting person”.
[53] The affidavit filed in support of Authorization #9 reproduced and relied on the contact log that was prepared by Cst. Gallant and given to Cst. Vanderstoop. Vanderstoop reviewed the information provided by Gallant, and then contacted A.K., who confirmed that the information about the phone calls was accurate. Vanderstoop’s affidavit relied on the information provided by A.K. in support of the requested Authorization #9.
[54] Vanderstoop’s affidavit did not disclose the fact that other RCMP officers listened in on these conversations, nor did it disclose that the calls were recorded by the RCMP without a prior judicial authorization.
[55] On July 9, 2010, Sg. Vanderstoop attended before the Honourable Justice Kent for the ninth s. 184.2 one party consent wiretap application in this investigation. Justice Kent granted the Application, which authorized the requested interceptions between July 9, 2010 and December 31, 2010.
[56] Between January 31, 2011 and May 29, 2012, a further five s. 184.2 authorizations were granted (Authorizations #10-14). Sgt. Vanderstoop was the affiant for Authorization #10. The omission that communications were recorded between Adam and A.K. prior to obtaining Authorization #9 was repeated in Affidavit #10. This affidavit also does not mention that Gallant was monitoring and recording these calls because Sgt. Vanderstoop was unaware of this fact.
[57] The affidavits filed in support of Authorizations #9 and #10 also state that during the course of her release from captivity, Adam secured a promise from Amanda to send him some of the ransom monies that he missed out on, after she arrival back in Canada. The investigative plan as articulated in Affidavit #9 called for an undercover officer, acting as intermediary for Amanda, to offer this money to Adam as a means of enticing him out of Mogadishu to a place where he could receive it. This was inaccurate as it was an individual named Ahmed and not Adam who made Amanda promise to pay him extra money after her release.
[58] After her release from captivity, Amanda provided a number of statements to the RCMP, between January 19 and 22, 2010. In these statements, she advised the RCMP that after her first few months of captivity, she never saw “Adam” again. Those statements also made it clear that it was one of her principal captors named “Ahmed” and not Adam, who had, at the time of her release, made Amanda sign a “contract” to send him additional money after her return to Canada, and provided her with an email address that she could use to contact him for this purpose.
[59] In June 2013, A.K. and a group of RCMP investigators travelled to Mauritius as part of the ongoing operation, and arranged a face-to-face meeting between the Applicant and A.K. At the meeting, the Applicant provided unsolicited information and evidence detailing his involvement in the above mentioned events. For instance, he told A.K. about his contact with Amanda while she was in captivity, the various aliases he used when communicating with Stewart, and events he participated in during the commission of the offence.
[60] Following the meeting in Mauritius, the Applicant was led to believe that a fictitious book publisher had expressed an interest in meeting with him as part of the next step to bring his book to publication. As such, the Applicant accepted an invitation to Canada to meet with the publisher at a hotel in Ottawa, Ontario.
[61] Cst. Gallant was the affiant for Authorizations #11 through 14. All of these affidavits relied on the conversations between Adam and A.K. made between June 24, 2010 and July 9, 2010 before Authorization #9 was granted, as part of the grounds for the Authorizations. In the applications, he stated that he was monitoring the calls, but his affidavits did not disclose the fact that these calls had been recorded without prior judicial authorization.
[62] As part of the undercover operation, the Applicant met with the “book publisher” (UC #3) in an Ottawa hotel room designated as the “meeting room.” The Applicant was also a registered guest in the same hotel. One of the objectives of this scenario was to have him disclose to the book publisher details of his involvement and knowledge of the hostage-taking. A hotel probe captured the Applicant’s communications with the undercover operators and the Crown seeks to introduce this evidence at trial.
[63] On June 11, 2015, the Applicant met with A.K. and the fictitious publisher, UC #3. The Applicant told UC #3 that he had been approached by the kidnappers and asked to act as their translator. He said that he had asked them what his share would be, and after meeting with them, they had agreed that he would act as their representative in the negotiations with the families. He said that he introduced himself to Amanda and Nigel as the “commander” in order to gain their trust. He said that during the negotiations he used the name “Adam” as an alias.
[64] The Applicant reiterated that he was the person who had filmed the proof-of-life video and provided it to Al Jazeera. He also said that, after Amanda and Nigel were released, he was paid $10,000 by one of the hostage-takers, but he had been expecting more. The Applicant suggested that he was actually helping Amanda and Nigel, and that the situation could not have been resolved without him.
[65] At the conclusion of the undercover operation, the Applicant was arrested in Ottawa and charged with hostage-taking.
[66] The Crown intends to lead evidence of twenty-seven communications intercepted pursuant to Authorizations #2, #3, #4, #8, #9 and #17 and three communications intercepted pursuant to s. 184.4 of the Code. The Crown is not seeking to introduce evidence from Authorizations #1, #5, #6 or #7.
Issue #1: Did the Applicant have a reasonable expectation of privacy in his phone calls to Amanda’s parents demanding a ransom from the Canadian government?
[67] Section 8 of the Charter states that everyone has the right to be secure against unreasonable search and seizure. The interception of a private communication by the state, without judicial authorization, infringes the rights guaranteed under s. 8 of the Charter. In R. v. Duarte, (1990), 1990 CanLII 150 (SCC), 1 S.C.R. 30 at para. 30, the Supreme Court stated as follows:
30 I am unable to see any similarity between the risk that someone will listen to one's words with the intention of repeating them and the risk involved when someone listens to them while simultaneously making a permanent electronic record of them. These risks are of a different order of magnitude. The one risk may, in the context of law enforcement, be viewed as a reasonable invasion of privacy, the other unreasonable. They involve different risks to the individual and the body politic. In other words, the law recognizes that we inherently have to bear the risk of the "tattletale" but draws the line at concluding that we must also bear, as the price of choosing to speak to another human being, the risk of having a permanent electronic recording made of our words.
[68] s. 183 of the Code defines a “private communication” as follows:
Private communication means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it.
[69] The test to establish a reasonable expectation of privacy was set out by the Supreme Court in R. v. Tessling 2004 SCC 67 at para. 32 as follows :
The Court articulated a four-pronged, context-driven test:
What was the subject matter of the search?
Did the Respondent have a direct interest in the subject matter of the search?
Did the Respondent have subjective expectation of privacy in the subject matter of the search?
If so, was the expectation objectively reasonable? In this respect, regard must be had to:
a. the place where the alleged ‘search’ occurred;
b. whether the subject matter was in public view;
c. whether the subject matter had been abandoned;
d. whether the information was already in the hands of third parties; if so, was it subject to an obligation of confidentiality?
e. Whether the police technique was intrusive in relation to the privacy interest;
f. whether the use of surveillance technology was itself objectively unreasonable;
g. whether the FLIR heat profile exposed any intimate details of the Respondent’s lifestyle, or information of a biographical nature.
[70] In Duarte, the Supreme Court held that intercepting private communications by the state with the consent of the originator or intended recipient, without prior judicial authority, infringes the rights granted by s. 8 of the Charter.
[71] The Crown contends that in these circumstances, the Applicant did not have a subjective expectation of privacy in his ransom demand and negotiation communications, and if he did have such an expectation, it was not objectively reasonable in the circumstances.
[72] The Applicant has not presented any evidence that he had a subjective expectation of privacy in his telephone communications with Amanda’s mother and father demanding and negotiating a ransom of 1.5 million dollars from the Canadian government. The onus to establish a breach of his Charter rights is on the Applicant. The Applicant did not provide any evidence, by way of affidavit that he expected his ransom demand communications would remain private between him and Amanda’s parents. The Applicant also failed to provide any evidence that he was aware of the privacy protections in the Charter. However, I do not find that his lack of such knowledge of the Charter protections would disentitle him to the protection under the Charter.
[73] The Canadian criminal law is being extended to Somalia where the Applicant was residing in at the time the alleged offence was allegedly committed. I find that it is reasonable to extend the protections of the Canadian Charter of Rights and Freedoms to the Applicant because Canadian criminal law is extended to Somalia in this case. However, the Applicant must still meet the test set out in Tessling to establish that it was private communication, in the same manner as if the Applicant was a Canadian resident.
[74] Section 183 of the Code defines a “private communication” to include situations where the telecommunication is received by someone in Canada provided it is made under the circumstances where it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended to receive it.
[75] In R. v. Monachan 1985 CanLII 64 (SCC), [1985] 1 S.C.R. 176, the Supreme Court held that an individual who left threatening phone messages on the switchboard answering machine of the Toronto Police Service did not have an expectation of privacy in those communications. This case is not an exact analogy because it is widely known and expected that phone calls to the police or to emergency services are recorded.
[76] In the case of R. v. Pelusso, 2015 BCCA 370, the Court of Appeal for British Columbia held that in the context of a threat, a person who threatens another has no right to expect this person to keep the threat private. At para. 61, the Court stated:
Once the normative elements of reasonableness are recognized, however, it becomes clear that a person who threatens another has no right to expect that the person who has been threatened will keep the threat private.
[77] In the phone calls to Amanda’s parents the Applicant demanded the payment of a ransom of 1.5 million dollars from the Canadian government in order to free Amanda or else she would be killed. In these circumstances, the Applicant also intended that his request for a ransom be conveyed to the Canadian government authorities. As a result, he did not intend that his communication would be a private communication with only Amanda’s parents.
[78] In addition, the Applicant left his phone number where he could be contacted about his demand for payment of a ransom, which implied that he expected to have further communications about the ransom demand and his threat to kill Amanda.
[79] The unique aspects about this situation were:
a) The phone call to Amanda’s father included a ransom demand to be paid by the Canadian Government, which implies that it would be communicated to other parties;
b) The ransom demand included a threat to harm Amanda if the ransom was not paid, and constituted part of the commission of an ongoing criminal offence; and
c) The Applicant expected and intended to receive a reply back to his ransom demand from the Canadian authorities.
[80] In these circumstances, I find that the Applicant did not have a subjective expectation of privacy in his telephone communications with Amanda’s parents demanding a ransom and threatening to harm Amanda if the ransom was not paid; nor would an expectation of privacy be objectively reasonable in this type of communication.
Disposition of Issue #1
[81] For the reasons given above, I find that the Applicant did not have a subjective or objectively reasonable expectation of privacy in any of his communications with Amanda’s parents demanding and negotiating the payment of a ransom from the Canadian government along with the threats to harm Amanda if the ransom was not paid.
Issue #2 Are “emergency” interceptions made pursuant to s. 184.4 of the Code admissible?
[82] Section 183 of the Code defines “intercept” to mean “to listen to, record or acquire a communication or acquire the substance, meaning or purport thereof.” The RCMP intercepted communications with the applicant before Authorization #1 was issued.
[83] Section 184.4 of the Code (which has been declared unconstitutional reads as follows:
184.4: A police officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication if the police officer has reasonable grounds to believe that
(a) the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained under any other provision of this Part;
(b) the interception is immediately necessary to prevent an offence that would cause serious harm to any person or to property; and
(c) either the originator of the private communication or the person intended by the originator to receive it is the person who would commit the offence that is likely to cause the harm or is the victim, or intended victim, of the harm.
[84] In this case, Amanda has been taken hostage in Somalia. A voice message was left on her father’s answering machine on August 23, 2008 at 9:37 a.m. from an unknown male who issued a ransom demand for the sum of 1.5 million dollars for her release. The male provided a contact phone number. Amanda’s father checked his voice messages in the morning of August 24, 2008.
[85] The police were contacted by Amanda’s father and commenced interceptions on his phone line with his consent later that night at 1:20 a.m. on August 25, 2008 without an Authorization pursuant to the provisions of s. 184.4 of the Code.
[86] On August 25, 2008 at approximately 12 p.m., Sgt. Vanderstoop attended before Justice Bridges to obtain an Authorization to intercept phone calls on Amanda’s father and mother’s phone lines. Three calls were intercepted while Sgt. Vanderstoop was in Justice Bridge’s chambers, which the Crown wishes to introduce as evidence.
[87] R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531 four years after the interceptions were made, the Supreme Court declared that s. 184.4, as it existed in 2008, was invalid and the declaration of invalidity was suspended for one year. The section was never amended and so is unconstitutional.
[88] In R. v. Grant, 2009 SCC 32 the Supreme Court set out the test to be applied to decide whether to exclude the evidence under section 24 (2) of the Charter. 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,
(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.
1) Seriousness of the charter infringing state conduct
[89] I am satisfied that the police met the requirements of section 184.4 of the Code and would have had reasonable grounds to believe that the urgency of the situation was such that an authorization could not with reasonable diligence be obtained under any other provision of this part, and that such an interception was immediately necessary to prevent an unlawful act that would cause serious harm to Amanda, as the person demanding the ransom had threatened to cause harm to Amanda if the ransom was not paid.
[90] I find that the Charter infringing state conduct was not serious in the circumstance for the following reasons:
(a) The police acted in good faith in relying on a section of the Code which authorized them, on an urgent basis, to intercept the private communications without prior judicial authorization. There was no systemic disregard by the police of the provisions of the Code or the Charter. Section 184.4 was not declared unconstitutional until 2012 approximately four years after these interceptions were made;
(b) The police applied for an authorization to intercept the communications of the hostage taker with Amanda’s parents within less than 24 hours. The three phone calls made by the hostage taker were intercepted while Sgt. Vanderstoop was in chambers with Justice Bridges obtaining Authorization #1;
(c) Authorization #1 was granted by Justice Bridges however there was an error as it was granted for 61 days, which exceeded the maximum period of 60 days, as a result it was never implemented; I find that this was a technical error and was not serious infringing state conduct.
(d) when the police became aware that the first authorization was not valid, they applied to Justice Bridges pursuant to section 184.3 of the Code (application by telecommunication). Justice Bridges granted the authorization for a period of 60 days, however this authorization was also invalid because the section limits the duration of such an authorization to 36 hours. I also find that this was a technical error by the police and the justice and was not serious infringing state conduct;
(e) the fact that the consents of Lorinda Stewart and John Lindhout to intercept communications under Authorizations #1 and #2 contained errors as to the dates for which the consents applied, are also not serious state misconduct as they were in fact consenting as their affidavit evidence stating that they consented to the interception of their communications with the person demanding a ransom for the release of their daughter.
2) Impact of the breach on the charter protected interests of the accused
[91] The impact of any breach of the accused’s charter protected interests is minimal for the following reasons:
• the accused initiated the phone calls to Amanda’s father insisting that his ransom demands be met by the Government of Canada. Only his communications with Amanda’s parents were intercepted when he was speaking to them demanding or negotiating a ransom. All of the accused’s other phone communications were not intercepted and as result the impact on his Charter protected interests was minimal in the circumstances.
3) Society’s interest in the adjudication of the case on its merits
(a) The evidence from the emergency interceptions is highly reliable evidence and is important to the Crown’s case. The case involves a serious offense namely one of hostage-taking which has had a serious impact on Amanda, a Canadian citizen;
(b) As result, the society has an important interest in the adjudication of this case on its merits.
Disposition of Issue #2
[92] Having weighed the above factors I find that the evidence of the communications the intercepted pursuant to the emergency provisions of section 184.4 of the Code would do not have a negative effect on the public confidence in the rule of law or risk bringing the administration of justice into disrepute for the reasons given above.
Issue #3
Issue #3: Could the Justices have issued the Pre-Release Authorizations #1 through #8?
Analysis
[93] In R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 at para. 30, the Supreme Court held that a “one-party consent” authorization issued under Part VI of the Code is subject to being set aside where an Applicant has established that the authorization failed to meet the statutory pre-conditions for its issuance. The reviewing judge must determine whether there was a basis for the authorizing judge to be satisfied that:
a) there are reasonable grounds to believe that an offence has been or will be committed;
b) either the originator or the intended recipient of the private communication has consented to the interception; and
c) there are reasonable grounds to believe that information concerning the offence will be obtained by the interception.
[94] In R. v. Arujo, the Supreme Court of Canada stated that an authorization to intercept private communications under s. 184.2 is also subject to be set aside where an Applicant has established that the authorization was obtained through fraud, incorrect or misleading disclosure, or material non-disclosure in the evidence put before the authorizing judge. The affiant’s legal obligation on any ex parte application is to make full, frank and fair disclosure of the material facts.
[95] The standard of review to determine whether the statutory preconditions for the authorization have been met were set out in R. v. Garofoli, 1990 CanLII 52 (SCC), 1990 2 S.C.R. 1421 at paras. 54 and 55. The reviewing judge should not substitute his or her view for that of the authorizing judge. The test remains focused on the statutory preconditions for the authorization. The Applicant must demonstrate that, based on the record which was before the authorizing judge, as amplified on the review, the authorizing judge could not have granted the authorization. The existence of fraud, non-disclosure, misleading evidence and new evidence are relevant in determining whether there continues to be any reliable basis upon which the authorization could have been issued.
[96] If the Applicant establishes that there was no reliable basis on which the authorization could have been issued the interception breaches s. 8 of the Charter, and then the Court must consider whether the evidence ought to be excluded under s. 24(2) of the Charter.
[97] Challenges to the constitutionality of wiretap authorizations may involve either or both a facial and sub-facial attack on the authorizing warrant. In Arujo at para. 19, the Supreme Court stated that a formal validity challenge requires the reviewing judge to examine the affidavit and to determine whether, on the face of the information disclosed, the justice could have issued the authorization. The record examined on a facial review is fixed: it is the affidavit, not an amplified or enlarged record.
[98] At paras. 50 – 54 of Arujo, the Supreme Court stated that sub-facial challenges go behind the form of the affidavit to attack or impeach the reliability of its content. Sub-facial challenges involve an amplified record, but do not expand the scope of review to permit the reviewing judge to substitute his or her view for that of the authorizing judicial officer. The task of the reviewing judge on a sub-facial challenge is to consider whether, on the record before the authorizing justice as amplified on the review, the authorizing justice could have issued the authorization. The analysis is contextual. The reviewing judge should carefully consider whether sufficient reliable information remains in the amplified record, in other words, information that might reasonably be believed, on the basis of which the authorization could have issued.
Authorization #1
[99] Regarding consent-based authorizations, Section 184.2(4) of the Code sets out the mandatory features of a consent authorization:
(4) An authorization given under this section shall
a) state the offence in respect of which private communications may be intercepted;
b) state the type of private communication that may be intercepted;
c) state the identity of the persons, if known, whose private communications are to be intercepted, generally describe the place at which private communications may be intercepted, if a general description of that place can be given, and generally describe the manner of interception that may be used;
d) contain the terms and conditions that the judge considers advisable in the public interest; and
e) be valid for the period, not exceeding sixty days, set out therein.
[100] Authorization #1 is invalid on its face because it was granted for sixty one (61) days, and it was never implemented. The RCMP realized that it exceeded the maximum period allowed of sixty days. The Crown is not seeking to introduce any interceptions under this Authorization.
Authorization #2
[101] Section 184.3 of the Code permits the obtaining of an authorization by way of telecommunication, as opposed to appearing in person before the authorizing justice. A key feature to a tele-authorization however is a limitation on the duration of such orders. Section 184.3(6) permits a wiretap authorization under s. 184.3 to be in place for a maximum of 36 hours.
[102] The RCMP realized that Authorization #1 was invalid and they sought to correct the error by making a telephone application. Authorization #2 was granted for a period of 60 days but was also invalid because it exceeded the 36 hour maximum length for an authorization obtained by telephone.
[103] The Crown seeks to introduce evidence of two phone calls made within 36 hours of Authorization #2 being granted based on the Grant analysis under s. 24(2) of the Charter.
[104] The Applicant also submits that Authorization #2 is invalid on its face because the consents attached do not relate to the time periods stated within the application, namely from August 26, 2008 to October 23, 2008. The consent states that it was for a period from November 9, 2007 until January 7, 2008. The Authorization was signed by Justice Bridges on August 26, 2008 for a period from August 26, 2008 to October 23, 2008.
[105] Notwithstanding the typographical errors in the dates set out in the consents, I am satisfied that Amanda’s parents were in fact consenting based on paras. 3 and 12 of their affidavit filed in support of the application. The phone message demanding a ransom was only received on August 24, 2008 and so the dates entered on consent were clearly erroneous. I find that Amanda’s parents intended to consent to future interceptions as set out in their affidavit. As such, the issuing justice could have issued this authorization, but not for more than 36 hours.
[106] The evidence of the two phone calls made within 36 hours of the granting of Authorization #2 may be introduced based on s. 24(2) of the Charter following the Grant analysis because:
(1) Seriousness of Charter Infringing State Conduct
The conduct of the police in obtaining Authorizations #1 and #2 was not made in bad faith, but they unintentionally exceeded the time that could be authorized along with the issuing Justice;
A justice could have issued the Authorization #2 for 36 hours and so the breach was not serious and was unintentional.
(2) Impact on Charter Interest
Any impact of the Applicant’s Charter rights is also minimal because:
a) the authorization was granted, but for a longer period than permitted;
b) the Applicant did not have a subjective or objective expectation that his ransom demands would remain private, as he requested that 1.5 million dollars for ransom be paid by the Canadian government. His phone message contemplated that the contents would be heard by and shared with a third party, namely the government authorities. The Applicant would also have expected that phone calls with him concerning the ransom to be paid to secure the release of the hostage would not be private communications;
c) The interceptions made pursuant to third party consents were limited to phone calls between Amanda’s parents’ phone numbers and the Applicant and did not include intercepting all of the Applicant’s telephone communications. This greatly reduces the number of the Applicant’s phone calls that were intercepted and any breach of his privacy rights;
3) Society’s Interest in Adjudicating on the Merits
d) Finally, Society’s interest in having an adjudication on the merits is high due to the seriousness of a terrorist hostage taking offence against a Canadian citizen.
Authorization #3
[107] The Applicant argues that if the information from the previously intercepted phone calls is excised as set out in para. 36, (a) to (h) of the affidavit, then the issuing justice could not have issued the authorization. I have allowed the intercepted phone calls made within 36 hours from when Authorization #2 was granted to be introduced as evidence under s. 24(2) of the Charter and so this objection fails.
[108] The Applicant also submitted that Authorization #3 is overbroad because Amanda’s father’s line was moved to a covert location and his consent to the interception only referred to interceptions at his residence. I do not find that Authorization #3 is overbroad because Amanda’s father consented to interceptions of calls made to and from his phone number. The actual location of his phone is irrelevant and is only a technical difference.
[109] I find that the issuing judge could have issued Authorization #3 based on the information and circumstances set out in the application.
Authorization #4
[110] The Applicant argues that Authorization #4 is invalid because the affidavit of Sgt. Vanderstoop was not sworn before the issuing justice.
[111] Sgt. Vanderstoop’s affidavit supporting the application was signed by him, but his signature was not sworn by the issuing Justice. Justice Sullivan swore the exhibits to his affidavit, and read the application carefully because he made amendments to several pages and corrected typographical errors and initialled them on several pages of Sgt. Vanderstoop’s affidavit. Sgt. Vanderstoop testified that he believed that Justice Sullivan read the affidavit carefully, administered the oath to him and swore his affidavit and the exhibits. While he did not have a specific memory of it being sworn, it was always Justice Sullivan’s practice to administer the oath and then he would sign the affidavit in front of him, and the Justice would then swear the jurat on the affidavit and the exhibits.
[112] I accept Sgt. Vanderstoop’s evidence that Justice Sullivan swore his affidavit, and his failure to sign the jurat was a technical oversight. This situation is similar to the case of R. v. Lachance 1990 CanLII 53 (SCC), [1990] 2 S.C.R. 1490 at p. 1497 where the jurat was found to have been left incomplete by oversight. This does not invalidate the authorization issued by Justice Sullivan.
[113] I find that Authorization #4 could have been issued by the justice, as I have found that the affidavit was sworn based on the viva voce evidence of Sgt. Vanderstoop.
Authorizations #5, #6 and #7
[114] The Crown does not seek to rely on any of the interceptions made under Authorizations #5, #6 or #7.
Authorization #8
[115] This authorization was made to address a change in Amanda’s mother’s residence. Sgt. Vanderstoop attached his previous affidavits for previous authorizations to this application. I have allowed the evidence from the interceptions based on the previous authorizations #2, #3, and #4; and therefore, I find that Authorization #8 is also valid and I find could have been issued by the justice.
Post-Release Authorizations
Issue #4: Could the Justice have issued Authorizations #9 to #14?
Authorization #9
[116] On January 25, 2010, after Amanda had been released, the Applicant left a voice message on Amanda’s mother’s answering machine asking her to provide him with Amanda’s contact information. She did not provide this information to him.
[117] An undercover operation was commenced and communications between the undercover officer, A.K. and the Applicant was initiated. The operation was initiated with the goal of identifying “Adam” and possibly others involved in the hostage-taking of Amanda and Nigel. Investigators believed “Adam” to be an active conspirator and the main communicator/negotiator for the hostage-taker group.
[118] In mid-June 2010, several RCMP officers met to develop a plan to establish contact with the Applicant. Sgt. Vanderstoop was assigned the task of obtaining a judicial authorization to intercept communication between A.K., the undercover officer and the Applicant. Cst. Gallant was tasked with the responsibility to obtain the required equipment to intercept their telephone communications.
[119] Cst. Gallant installed the interception equipment and began intercepting telephone communications between A.K. and the Applicant commencing approximately 15 days before Authorization #9 was obtained on July 9, 2010.
[120] In late June of 2010, A.K. made several attempts to establish contact with the Applicant by calling him on the number he had given to Amanda’s mother, Lorinda Stewart. On June 25, 2009, A.K. spoke to the Applicant three times and on June 29, 2010, he spoke to him twice. Cst. Matt Gallant and Staff Sgt. Andre Hebert used a device to listen and record these calls before obtaining judicial Authorization #9.
[121] Authorization #9 was granted on July 9, 2010, identifying A.K. as the consenting party. During the implementation period covered by Authorization #9, the Applicant and A.K. communicated by e-mail and over the phone about Amanda and events involving the hostage-taking. Two of the Applicant’s communications were intercepted under this authorization on July 15, 2010 are sought to be tendered at trial. In these calls, the Applicant told A.K. that he had Amanda’s “letters” and would email samples of them. The Applicant went on to email those “letters” that Amanda later confirmed she had written while in captivity.
[122] A.K. made notes of his June phone calls with the Applicant at the time the calls were made and later listened to the recording made by Gallant to supplement his notes. A.K. was aware that an application for a judicial authorization to intercept was being sought, but believed that he was permitted to record his own calls as he was a “consenting person.” Cst. Gallant was operating on the same misunderstanding.
[123] Cst. Gallant prepared a “contact log” based on his notes of the conversations while listening in on the phone calls between A.K. and the Applicant and then supplemented the “contact log” by reviewing the recording of the phone calls. Gallant sent a copy of this “contact log” to Sgt. Vanderstoop, who included a copy of it at para. 29 of his application for Authorization #9.
[124] Sgt. Vanderstoop testified that he was not aware that Gallant had commenced recording the calls before Authorization # 9 was obtained. I accept his evidence in this regard and that this explains why this was not disclosed in his application to the issuing justice.
[125] On July 9, 2010, Sgt. Vanderstoop attended before the Honourable Justice Kent to obtain Authorization #9. Justice Kent granted the Application, which authorized the requested interceptions commencing on July 9, 2010.
[126] The affidavit filed in support of Authorization #9 reproduced and relied on the “contact log” information that was prepared and given to him by Cst. Gallant. Sgt. Vanderstoop reviewed the information provided by Gallant, then contacted A.K. who confirmed that the information contained in the log about his phone conversations with the Applicant was accurate. A.K. relied on his original notes of his conversations with the Applicant, as supplemented by his review of the recorded interceptions of his calls.
[127] Between January 31, 2011 and May 29, 2012, a further five s. 184.2 authorizations were granted (Authorizations #10-14). Cst. Vanderstoop was also the affiant for Authorization #10. The explanation for omitting to include that communications between Adam and A.K. had been recorded before Authorization #9 was obtained, is the same as for Authorization #9.
[128] The affidavits filed in support of Authorizations #9 and 10 also state that during the course of her release from captivity, “Adam” secured from Amanda Lindhout a promise to send him some of the ransom monies that he missed out on after her arrival back in Canada. The investigative plan as articulated in Affidavit #9 calls for an undercover officer, acting as intermediary for Amanda, to offer this money to “Adam” as a means of enticing him out of Mogadishu to a place where he could receive it.
[129] The undercover scenario evolved to A.K. portraying himself as someone with connections in the publishing industry who could facilitate a “book deal”. The Applicant described a book he was writing about Somalia that would make him a millionaire. A.K. purported to be able to work with him to have the book published.
[130] On December 9, 2010, the Applicant revealed his true identity to A.K.. He provided his name as Ali Omar Ader, in an email communication. On December 11, 2010, the Applicant emailed A.K. and confirmed that his real name was Ali Omar Ader. He also emailed A.K. copies of his Bachelor of Arts degree and his passport. Both of these documents were in the name of Ali Omar Ader.
Analysis
[131] The RCMP’s interception of the communications between A.K. and the Applicant before obtaining a judicial authorization between June 24, 2010 and July 9, 2010 is unlawful. In R. v. Duarte, 1990 CanLII 150 (SCC), 1990, 1 S.C.R. 30 at paras. 21 and 22, the Supreme Court stated as follows:
21 The rationale for regulating the power of the state to record communications that their originator expects will not be intercepted by anyone other than the person intended by the originator to [page44] receive it (see definition section of Part IV.1 of the Code) has nothing to do with protecting individuals from the threat that their interlocutors will divulge communications that are meant to be private. No set of laws could immunize us from that risk. Rather, the regulation of electronic surveillance protects us from a risk of a different order, i.e., not the risk that someone will repeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words.
22 The reason for this protection is the realization that if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance. The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private. 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. [Emphasis added]
[132] The Crown agrees that the unauthorized recording of the conversations between A.K. and the Applicant cannot be relied on as evidence on which to obtain Authorization #9, however the Crown submits that it was entitled to rely on A.K.’s own account of his conversations with the Applicant based on his memory as assisted by his notes made at the time.
[133] I find that the Applicant had a subjective and reasonably objective expectation of privacy in the phone calls he made to speak with Amanda and A.K. following Amanda’s release as a hostage. These telephone communications, unlike those made while Amanda was held hostage, did not include a threat to harm a Canadian citizen, and did not include a demand of a 1.5 million dollar ransom from the Canadian Government, which implied that the conversation was not intended or expected to be a private communication.
[134] The fact that the phone calls were made from outside of Canada or the fact that they were believed to be made by the same person who had negotiated Amanda’s ransom does not remove the fact that these conversations were intended on a reasonable basis to remain private. As a result, I find that the Applicant benefits from the protection of the Canadian Charter for the post-release phone calls.
[135] The communications intercepted between June 24, 2010 and July 9, 2010 were made without judicial authorization and were subject to a reasonable expectation of privacy, therefore, the interceptions constitute to a breach of the Applicant’s rights under s. 8 of the Charter. I agree with the Applicant’s submission that when Canadian criminal law is extended to individuals in countries outside of Canada, the protection of the Charter available under Canadian law should be extended along with it.
[136] The record as amplified indicates that several of the Applicant’s conversations with A.K. were recorded between June 24 and July 9 of 2010 without a judicial authorization. Para. 5 of affidavits #9 and #10 should be amended to replace “the Applicant” for the person named “Ahmed.” I find that this error was not made in bad faith and when corrected on amplification does not remove the justice’s ability to issue Authorization #9 for this reason.
[137] The Interception of the conversations before Authorization #9 was granted constitutes a breach of the Applicant’s Charter rights. As a result, I will proceed with a Grant analysis under s. 24(2) of the Charter.
Seriousness of the Charter Infringing State Conduct
[138] I find that the Charter breach by the RCMP was a serious breach of the Applicant’s privacy rights but the impact is reduced for the following reasons:
a) Sgt. Vanderstoop’s affidavit did not disclose that calls were being recorded before the judicial authorization was obtained because Sgt. Vanderstoop was not aware that the telephone calls had been recorded and so there was no deliberate concealment or dishonest intent when he signed his affidavits #9 and #10;
b) Full disclosure was subsequently made to a Justice for Authorization #15, after Cst. Gallant became aware that he had made a mistake by recording the conversations before obtaining Authorization #9 and advised his superior officer. A further authorization was granted by a Justice when all of the circumstances about recording the conversations between A.K. and the applicant before the authorization were known;
c) Authorization #9 could have been issued based only on A.K.’s recollection and contemporaneous notes without considering the additions made after reviewing the recorded interception when combined with the balance of the uncontested evidence including:
• The fact that a person calling himself Adam attempted to make contact with Amanda on January 5 of 2010 at 10:06 a.m. after she had been released as a hostage;
• The eight (8) previous authorizations had been granted to intercept phone calls between Amanda’s parents and the same individual while Amanda was being held hostage;
• The phone calls were made to a number left by Adam on January 5, 2008. A.K.’s memory, assisted by his own notes of his conversation made at the time, would have contained the phone number at which he was advised that Adam could be reached, namely 00252615384488, that an individual identifying himself as Adam answered the phone, and that the individual had eight (8) of Amanda’s letters in his possession which he was prepared to sell. The essence of this information is not extensive and the recording of the phone call did not add any other relevant evidence.
d) It is an aggravating factor that both A.K. and Cst. Gallant were not aware that they could not intercept communications with a target in a criminal investigation without a prior judicial authorization, even with one of the party’s consent. However, I find that they did not act in bad faith and there was no systemic practice by the RCMP to ignore the provisions of the Code and the Charter. In fact, they were in the process of applying for judicial authorization and there was no urgency.
e) Cst. Gallant advised his superior officer several months later that he believed he had made an error after he had attended a course on wiretapping. He then made full disclosure of what had occurred to the justice who heard the next application for Authorization #15, and this application was granted.
f) The Crown acknowledges that para. 5 of the affidavit should be corrected to read “Ahmed” rather than the “Applicant.” I do not find that this amounts to a failure to make full and frank disclosure. Ahmed was also one of the hostage takers; and I find it was an innocent mistake in circumstances where the Applicant was using aliases, including “Adam” and “Adan.” A Justice could have issued Authorization #9 based on the amplified record correcting the name from the Applicant to “Ahmed”;
[139] Cst. Gallant should have advised Sgt. Vanderstoop that he had recorded the conversations between the Applicant and A.K., before the authorization had been granted and that he used these recordings to supplement his notes of their conversations. A.K. should also have advised Sgt. Vanderstoop that his conversations with the Applicant had been recorded between June 24 and July 9, 2010. However, I find that the two officers were not deliberately subverting the judicial process, were not acting in bad faith, were not deliberately failing to disclose relevant information or making any false representations, and were not wilfully and recklessly disregarding the Applicant’s Charter rights. As a result, their conduct does not justify quashing the authorization. Their actions of recording the conversations had no significant benefit to the police or their investigation because the authorization could have been obtained from A.K.’s contemporaneous notes and memory of the conversations as the information was very limited, namely that contact had been made with Adam and that he had some letters written by Amanda that he wished to sell.
[140] Sgt. Vanderstoop was not aware of the recordings, and as a result, he did not mislead or deliberately omit evidence from his affidavit. I also find that he did not fail to make full frank disclosure even though the full situation was not put before the issuing justice.
[141] The circumstances are similar to those in R v. Paryniuk where the affiant accepted another officer’s information without checking whether or not the calls had been recorded. Cst. Gallant did not understand the extent of the disclosure required and failed to disclose that the phone calls had been recorded. In Parynuk, the trial judge did not exercise his residual discretion to quash the warrant or exclude the evidence. The Court of Appeal did not find this to be a reversible error, even though the errors in Paryniuk were more substantial than those made by the Officers Gallant and A.K. in this case.
The Impact of the Breach on the Applicant
[142] The impact on the accused is minimal as the authorization could have been obtained based on A.K.’s notes of their conversation without recording the telephone conversations.
Society’s Interest
[143] Society has an important interest in having such serious charges heard on their merits. In considering the above circumstances, I find that the issuing of Authorization #9 would not bring the administration of justice into disrepute or render the trial unfair.
Disposition on Authorization #9
[144] I therefore find that a justice could have issued Authorization #9 based on the amplified record, and the evidence should not be excluded under s. 24(2) of the Charter. The evidence obtained pursuant to Authorization #9 is therefore admissible.
Disposition of Authorizations #10 - #14
[145] The same information that was contained in the affidavit for Authorization #9 was carried forward in Authorization #10 to #14. Authorizations #10 to #14 could also have been issued by a justice on the amplified record for the same reasons given for Authorization #9 above.
Authorizations #15 - #17
[146] The Applicant does not contest that Authorizations #15 to #17 could have been issued by a justice.
Mr. Justice Robert J. Smith
Released: August 11, 2017
CITATION: R. v. Ader, 2017 ONSC 4643
COURT FILE NO.: 16-30357
DATE: 20170811
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
ALI OMAR ADER
decision on garofoli application
R. Smith J.
Released: August 11, 2017