R. v. Monteith, 2018 ONSC 2903

COURT FILE NO.: CR-17-90000519-0000

DATE: 20180514

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

DAVID MONTEITH

Applicant

David M. W. Morlog for the Respondent

Mitchell Chernovsky for the Applicant

HEARD: May 7, 2018

REASONS FOR DECISION

DIAMOND J.:

Overview

1The applicant is charged that, on or about April 19, 2016 in the city of Toronto, he:

a) unlawfully trafficked by offering to sell a controlled substance (cocaine) contrary to section 5(1) of the Controlled Drugs and Substances Act (“CDSA”); and

b) unlawfully had a controlled substance (cocaine) in his possession for the purposes of trafficking contrary to section 5(2) of the CDSA.

2The trial of those charges is currently scheduled to proceed before a judge and jury on June 4, 2018.

3On or about January 24, 2018, the applicant served a Notice of Constitutional Question challenging the constitutional validity of section 184.1 of the Criminal Code. He then brought an application seeking an Order that, on the day he was charged, section 184.1 violated sections 7 and 8 of the Canadian Charter of Rights and Freedoms (“Charter”) and was thus of no force or effect pursuant to section 52(1) of the Constitution Act, 1982.

4The hearing of that application proceeded before me on May 7, 2018. At the conclusion of the hearing, I took my decision under reserve.

5These are my Reasons.

The Impugned Provisions

6The provisions of section 184.1 are as follows:

Interception to prevent bodily harm

(1) An agent of the state may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication if

a) either the originator of the private communication or the person intended by the originator to receive it has consented to the interception;

b) the agent of the state believes on reasonable grounds that there is a risk of bodily harm to the person who consented to the interception; and

c) the purpose of the interception is to prevent the bodily harm.

Admissibility of intercepted communication

(2) The contents of a private communication that is obtained from an interception pursuant to subsection (1) are inadmissible as evidence except for the purposes of proceedings in which actual, attempted or threatened bodily harm is alleged, including proceedings in respect of an application for an authorization under this Part or in respect of a search warrant or a warrant for the arrest of any person.

Destruction of recordings and transcripts

(3) The agent of the state who intercepts a private communication pursuant to subsection (1) shall, as soon as is practicable in the circumstances, destroy any recording of the private communication that is obtained from an interception pursuant to subsection (1), any full or partial transcript of the recording and any notes made by that agent of the private communication if nothing in the private communication suggests that bodily harm, attempted bodily harm or threatened bodily harm has occurred or is likely to occur.

Definition of agent of the state

(4) For the purposes of this section, agent of the state means

a) a peace officer; and

b) a person acting under the authority of, or in cooperation with, a peace officer.

7Both parties agree that the purpose of section 184.1 is to protect undercover police officers by permitting them to intercept private communications (on the above listed grounds) in order to monitor ongoing police investigations and/or operations.

8A police officer may intercept a private communication (a) on consent of the person intended by the officer to receive the communication, or (b) if no consent is obtained, on the basis that reasonable grounds exist that there is a risk of bodily harm to agents of the state.

9Section 184.1 mandates that the contents of private communications obtained from any interception are inadmissible as evidence in a criminal proceeding save for a limited exception (which exception is not engaged on the facts of this case).

10Finally, any recording made of an interception of a private communication must be destroyed “as soon as is practicable in the circumstances.”

Evidence on this Application

11A summary of the allegations made by the respondent is as follows:

• Based upon information obtained from a confidential informant, an undercover police officer contacted an individual known as “Reds” by telephone to arrange to buy crack cocaine.
• The undercover police officer was directed by the individual who answered the phone to a grocery store parking lot in the area of Jane Street and Lawrence Avenue West.
• Upon arriving at the parking lot, the undercover police officer telephoned Reds again and was redirected to a parking lot across the street.
• Upon arriving at the new location, the applicant approached the undercover police officer’s vehicle and the applicant confirmed that he was indeed was “Reds”.
• After confirming the quantity of crack cocaine and the price, the applicant entered the undercover police officer’s vehicle and directed him to yet another parking lot of a bar/restaurant located nearby.
• The applicant exited the undercover police officer’s vehicle and told him to meet him at the applicant’s car.
• Upon exiting the undercover police officer’s vehicle, the applicant was arrested.
• During the search incident to arrest, police officers located a car key and fob on the applicant’s person.
• After canvassing the area, police officers located a van associated with the car key and fob seized from the applicant.
• The van was towed, and a search warrant was obtained; and
• Upon executing the search warrant, police officers and located powder and crack cocaine inside the van.

12In support of his application, the applicant swore an affidavit which set out a completely different version of events. The applicant, who was not cross-examined, testified that he had arranged to meet a friend in the area of Jane Street and Lawrence Avenue West, as they had spoken earlier that day and agreed to spend time together that evening. A vehicle then pulled up next to the applicant, and an individual (who was not the applicant’s friend described above) spoke to him and advised him to get in the vehicle as the applicant’s friend had sent that individual to pick him up and bring him to meet his friend. After the applicant entered the vehicle, he was asked by the individual if the applicant could sell him cocaine. The applicant testified that he refused to sell the individual any drugs, and never offered to sell any drugs to him. The applicant then exited the car after being requested to sell the individual some drugs, and he was subsequently arrested.

13Suffice it to say that the versions of events relating to the evening of April 19, 2016 as presented by the undercover police officer and the applicant are quite different, if not diametrically opposed.

Officer Protection Devices

14During the interaction with the applicant, including the time spent in the vehicle, the undercover police officer was using an Officer Protection Device (“OPD”) which allowed the undercover police officer’s conversations to be heard and monitored by another detective.

15On the record before me, the OPD used by the undercover police officer (and in fact all OPDs used by the Toronto Police Services) do not record any conversations, but simply monitor them with a view to assessing the undercover police officer’s safety so that if the undercover police officer is at risk, further assistance can be provided by other police officers.

16While the conversation between the undercover police officer and the applicant was monitored and heard by the detective, no recording was ever made of that conversation, and the detective never took any notes of the contents of that conversation.

The Position of the Applicant

17As explained by the Supreme Court of Canada in R. v Collins 1987 CanLII 84 (SCC) a search will be deemed reasonable if it is authorized by law, the law itself is reasonable and the manner in which the search was carried out was reasonable.

18As the applicant has specifically denied that he ever trafficked or offered to traffic cocaine or any other drug to the undercover police officer, he submits that the entire actus reus of the charges took place within the conversation between the undercover police officer and the applicant inside the vehicle. Had the conversation been recorded, the applicant submits that such a recording would have exonerated him and confirmed his version of events.

19The applicant argues that section 184.1 is constitutionally invalid because it violates his rights under sections 7 and 8 of the Charter, and such infringements are not justified under a section 1 analysis. Specifically, the applicant advances the following arguments:

a) the interception of a private communication without judicial authorization is a prima facie violation of section 8 of the Charter;

b) the lack of any requirement to notify individuals whose communications are intercepted is a violation of section 8 of the Charter;

c) the lack of a requirement to prove exigent circumstances absent judicial authorization is a violation of section 8 of the Charter;

d) the requirement to destroy any recordings, transcripts or notes of intercepted private communications is tantamount to the destruction of evidence, and is thus a violation of the applicant’s section 7 Charter rights; and,

e) the requirement to destroy any recordings, transcripts or notes of intercepted private communications prevents the applicant from obtaining or presenting evidence necessary to make full answer and defence, and is thus a violation of sections 7 and 11(d) of the Charter.

20The applicant further submits that in the circumstances of this case, the Toronto Police Services had an obligation to record the conversation between the undercover police officer and the applicant, and preserve that recording to be sealed and delivered to the applicant as part of the Crown’s disclosure obligations. The applicant argues that the failure to carry out all the above steps is further evidence of the constitutional invalidity of section 184.1.

Decision

21To begin, in my view the applicant’s position as outlined above appears to be internally inconsistent. In simple terms, the applicant argues that even though a police officer has no authority to intercept conversations without consent or judicial authorization, a police officer ought to be mandated to record such conversations to preserve (possible) exculpatory evidence. Such a position is contrary to the Supreme Court of Canada’s decision in R. v. Duarte 1990 CanLII 50 (SCC) where the Court held that any surreptitious electronic surveillance of an individual by an agency of the state constitutes an unreasonable search or seizure under section 8 of the Charter. I agree with the respondent that requiring a police officer to gather evidence under section 184.1 directly contradicts the constitutional principles in Duarte.

22In R. v. Tse 2012 SCC 16, the Supreme Court of Canada was asked to determine the constitutional validity of section 184.4 of the Criminal Code, which section was known as the “emergency wiretap provision”, and permitted a police officer to intercept private communications, without prior judicial authorization, if the police officer believed on reasonable grounds that the interception was immediately necessary to prevent an unlawful act that would cause serious harm, provided judicial authorization could not be obtained with reasonable diligence. The Court held that in situations where judicial authorization is not required, additional safeguards are necessary to ensure constitutional compliance. As a result of section 184.4 lacking a mechanism for oversight, and a requirement to notify persons whose private communications have been intercepted, the Court found section 184.4 to be a violation of section 8 of the Charter.

23While arguably obiter, the Supreme Court of Canada nevertheless compared the safeguards inherent in section 184.1 with the lack of safeguards in section 184.4 (my emphasis in bold):

“It was submitted that s. 184.4 should include restrictions similar to those in s. 184.1 limiting the permissible use of the interceptions. Section s. 184.1 permits an agent of the state to intercept communications if the agent believes on reasonable grounds that there is a risk of bodily harm to a person who is a party to the communication and who consents to the interception. Section 184.1(2) makes interceptions admissible in evidence only in proceedings relating to bodily harm and s. 184.1(3) requires that the interceptions be destroyed if they do not relate to bodily harm. Obviously, Parliament struck a different balance with this provision. It requires consent of one of the parties to the communication and imposes restrictions upon its use. Further, it does not contain many of the conditions set out in s. 184.4, including the unavailability of judicial pre-authorization. As discussed above, Parliament has built in a number of conditions to ensure that s. 184.4 is used only in exigent circumstances to prevent serious harm. While a statutory restriction on the use that can be made of the interception is not necessary for constitutional purposes, we make no comment on the admissibility of intercepted communications relating to matters that would not have justified the use of s. 184.4.”

24Both parties rely upon the decision of Justice Bourque in R. v. Conte 2012 QCCS 545. The applicant seeks to distinguish it, while the respondent places great reliance upon it. In Conte, the Court was asked to determine the constitutional validity of section 184.1. On the record before Justice Bourque, the subject intercepted private communications and conversations were recorded and subsequently destroyed. This is unlike the case before me, although the applicant argues that there is no effective or practical difference between a recording that was made and then destroyed, and a recording that never existed.

25I disagree with the applicant, and find that there is indeed a difference between the situation in Conte and the record before me. The right to challenge the legality of a search depends upon an accused establishing that his/her personal rights to privacy have been violated. As held by the Supreme Court of Canada in R. v. Edwards 1996 CanLII 255 (SCC), “in any determination of a section 8 challenge, it is of fundamental importance to remember that the privacy right allegedly infringed must, as a general rule, be that of the accused person who makes the challenge.”

26The applicant thus has a much diminished expectation of privacy than the accused in Conte. The applicant does not fall into the class of individuals whose private conversations have been not only intercepted for the purposes of monitoring, but recorded and subsequently destroyed. There is no dispute on the record before me that there are reasonable grounds to believe that there was a risk of bodily harm to the police officer; in fact, the applicant does not take a contrary position.

27In any event, I find the Conte decision to be illustrative and correct. In dealing with the requirement to have additional safeguards, Justice Bourque reviewed section 184.1 and held as follows:

“The Court is of the opinion that the limited conditions allowing the use of preventative listening, the obligation to destroy recordings and the strict restrictions on using them as evidence constitute an appropriate balance between the rights of the state and the rights of individuals. Consequently, section 184.1 permits a reasonable search and seizure and therefore does not infringe section 8 of the Charter.”

28Any intrusion into the applicant’s diminished expectation of privacy is greatly reduced by the absence of any permanent recording (which never occurred in this case in any event) and the explicit intended use of any interception, ie. not for the purpose of gathering or tendering evidence in this criminal proceeding. I find there to be more than adequate safeguards to diminish the encroachment upon the applicant’s already-diminished expectation of privacy.

29For these reasons, I find that section 184.1 of the Criminal Code to be constitutionally valid, and the application is dismissed.

Diamond J.