CITATION: R. v. Hafizi, 2017 ONSC 5273
COURT FILE NO.: 12-G1063
DATE: 2017/08/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Temorshah Hafizi
Applicant
Roderick W.A. Sonley, Pierre Lapointe, for the Crown (Respondent)
Howard L. Krongold for the Applicant
HEARD: August 8, 2017
REASONS FOR DECISION
C.T. Hackland J.
[1] By way of pre-trial motion, the applicant seeks a declaration of unconstitutionality in respect of sections. 185 and 186 of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”) “to the extent that they permit an individual’s private communication to be targeted for interception where there are no reasonable grounds to believe that the interception of that person’s private communications will afford evidence of an offence”.
[2] The applicant is charged with trafficking in heroin and related charges. He was the subject of a Part VI wiretap authorization relating to his cellphone.
[3] The applicant bases his constitutional challenge on the “may assist” standard which is to be found in s. 185(1) of the Code and pursuant to which he was named as a Principal Known Person in the relevant wiretap authorization.
[4] The applicant’s contention is that a valid constitutionally compliant authorization for a search under s. 8 of the Charter of Rights and Freedoms, (the “Charter”) must be based on a reasonable and probable cause standard. This is the constitutional minimum standard for justifying a search as established by the Supreme Court of Canada in Hunter v Southam (1984), 1984 CanLII 33 (SCC), 14 C.C.C. (3d) 97.
[5] The relevant provisions are 185(1)(a), (b) and (c).
Section 186 reads:
- (1) An authorization under this section may be given if the judge to whom the application is made is satisfied
(a) That it would be in the best interests of the administration of justice to do so; and
(b) That the other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or 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.
Section 185(1) requires that Part VI application be accompanied by an affidavit. That affidavit must contain certain information, set out below. The portion in bold describes the criteria identifying a “known person” in an affidavit:
(c) The facts relied on to justify the belief that an authorization should be given together with particulars of the offence,
(d) The type of private communication proposed to be intercepted;
(e) The names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable ground to believe may assist the investigation of the offence, a general description of the nature and location of the place, if known, at which private communications are proposed to be intercepted and a general description of the manner of interception proposed to be used, (underline added)
(f) The number of instances, if any, on which an application has been made under this section in relation to the offence and a person named in the affidavit pursuant to paragraph (e) and on which the application was withdrawn or no authorization was given, the date on which each application was made and the name of the judge to whom each application was made,
(g) The period for which the authorization is requested, and
(h) Whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or 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.
[6] The applicant recognizes that the current governing authority in Ontario on this point is the Court of Appeal’s judgment in R v. Mahal, 2012 ONCA 673. Mahal held that in order to obtain a Part VI authorization, it is not necessary to show that targeting a person’s private communication for interception will afford evidence of the offence. It held that, so long as there are grounds to believe that the investigation as a whole will afford evidence, an individual’s communications can be targeted for interception if doing so “may assist” the investigation. Probable cause only has to be shown in relation to the investigation as a whole, and not in relation to each targeted person.
[7] These principles were applied subsequently by the Court of Appeal in R v. Beauchamp, 2015 ONCA 260 at paras. 104 - 105. I agree with counsel’s acknowledgment that since Mahal was decided in 2012, it has become “entrenched law in Ontario”.
[8] Furthermore, I am respectfully of the opinion that I am bound by the Court of Appeal’s decision in Mahal and it is not open to me as a trial judge to grant the declaration requested. I acknowledge the applicant’s point that Mahal was primarily based on statutory interpretation and was not a Charter challenge per se of the “may assist” criteria in s. 185(1)(e) of the Code. Nevertheless, the Court’s analysis clearly reflects a consideration of the s. 8 Charter requirements for constituting a valid search.
[9] Mr. Krongold in his thoughtful submissions makes the point that the Mahal decision, so far as it permits a person to become subject to a Part VI wiretap authorization on a “may assist the investigation” basis, stands in awkward company with recent Supreme Court jurisprudence under s. 8 of the Charter.
[10] For example, the Supreme Court has emphasized that there is a heightened expectation of privacy applicable to electronic devices and electronic communications. As Moldaver J. recently observed in Wakeling v. United States [2014] 3 S.C.R. at p. 570, paras. 38 and 39:
[38]… Parliament has recognized that wiretaps pose heightened privacy concerns beyond those inherent in other searches and seizures. Justice Karakatsanis describes (at para. 116) the serious privacy implications of electronic surveillance, citing this Court’s caution that “one can scarcely imagine a state activity more dangerous to individual privacy” (Duarte, at p. 43).
[39] The highly intrusive nature of electronic surveillance and the statutory limits on the disclosure of its fruits suggest a heightened reasonable expectation of privacy in the wiretap context.
[11] The Supreme Court in R. v. Vu, 2013 SCC 60, 2013 S.C.C. 60 has clarified that prior specific authorization is required for the search of computers or cellphones – it is not sufficient simply that they are found in premises which are the subject of an authorized search. Such authorizations must comply with the Hunter v. Southam standard of reasonable and probable cause.
[12] Mr. Krongold argues that it is anomalous that his client’s cellphone, had it been seized by police in a personal or a property search, could be searched only pursuant to a specific authorization granted on a probable cause standard, whereas his cellphone in this case was intercepted on a lower “may assist” standard as one of the Part VI wiretaps authorized in this case.
[13] The Crown’s position, with which I agree, is that the constitutionality of the Part VI wiretap regime has been affirmed in Mahal so as to be binding on this Court.
[14] The Crown further submits that the constitutionality of the Part VI wiretap provisions were originally upheld in R. v. Finlay and Grellette (1985), 1985 CanLII 117 (ON CA), 23 C.C.C. (3d) 48 (Ont. C.A.). I accept that submission. It is most unusual however that Finlay is not specifically mentioned in the Court of Appeal’s reasons in Mahal and arguably the two appellate decisions are not entirely reconcilable on the issue of whether the “may assist” criteria constitutes a constitutionally sufficient basis for authorizing individual intercepts.
[15] The Court of Appeal has recently observed that the probable cause analysis in the context of wiretap interceptions must be viewed in a somewhat modified way due to the unique nature of potential future electronic intercepts. As the court stated in Beauchamp:
93 The interception of private communications is an investigative technique or tool to record words spoken by various individuals. What the speakers say may afford evidence about the commission of an offence, or an individual’s participation in it. The words sought to capture do not exist when the authorization is granted. They may never exist or disclose anything of relevance to any offence under investigation. By nature, the subject-matter sought – communications about an offence – is speculative. The probable cause analysis must take cognizance of this reality.
[16] Should there be any doubt as to the binding nature of the Court of Appeal’s view on the constitutionality of s. 186(1)(a), the Crown draws my attention to paras. 94 – 96 of R. v. Lucas 2014 ONCA 561:
[94] The appellants contend that their argument is reinforced by this court’s recent decision in R. v. Mahal, 2012 ONCA 673, 292 C.C.C. (3d) 252, leave to appeal refused, [2012] S.C.C.A. No. 496. Justice Watt, writing for the court, held that the threshold for naming a person in a wiretap authorization as a “known” person is a modest one and does not require reasonable grounds to believe that the person was involved in the commission of an offence being investigated (at para. 71). The appellants contend that because the scope of potential targets is so broad, investigative necessity is required as a constitutional precondition for authorizing wiretapping as an investigative tool.
[95] We do not share the appellants’ narrow interpretation of Largie. It is clear from a reading of that decision that Watt J.A.’s conclusion that investigative necessity is not a constitutional requirement for consent authorizations did not turn on their difference in scope from third party surveillance: see paras. 47-57. He rejected the assertion of a constitutional imperative of investigative necessity for wiretaps in general. And in Mahal, although the issue of the constitutional preconditions for granting an authorization under s. 186(1) was not directly engaged, Watt J.A. stated that s. 186(1)(a) embodies the constitutional requirement for a wiretap authorization (at para. 68):
The interception of private communications constitutes a search or seizure for the purposes of s. 8 of the Charter, thus any statutory provisions that authorize these interceptions must conform to the minimum constitutional standards that s. 8 demands: R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30. Section 186(1)(a) complies with these standards. Before granting a conventional authorization, the authorizing judge must be satisfied by the supportive affidavit that there are reasonable and probable grounds to believe the following:
i. A specified crime has been or is being committed; and
ii. That the interception of the private communications proposed will afford evidence of the crime.
Garofoli, at p. 1451. The affidavit must also establish the requirements of s. 186(1)(b).
[96] Accordingly, in the two recent decisions in Largie and Mahal, this court has confirmed that the minimum constitutional requirement for electronic surveillance finds expression in s. 186(1)(a) of the Criminal Code.
[17] In summary, the current jurisprudence in the Ontario Court of Appeal upholds the constitutional validity of the wiretap regime in Part VI of the Criminal Code and, in particular, the “may assist” criteria in s. 186(1)(e) of the Code for naming an individual as a target of the intercepts.
[18] Accordingly, the applicant’s request for a declaration of unconstitutionality of ss. 185 and 186 of the Code is dismissed.
Mr. Justice C.T. Hackland
Released: August 24th, 2017
CITATION: R. v. Hafizi, 2017 ONSC 5273
COURT FILE NO.: 12-G1063
DATE: 2017/08/24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
Temorshah Hafizi
Applicant
REASONS FOR Decision
Hackland J.
Released: August 24th, 2017