COURT FILE NO.: 1003/18
DATE: 2019 10 09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Brendan Gluckman and Ian Bell, for the Crown
- and -
KEITH HAMID, ROBERTO LEYVA and BRANO ANDREWS
Liam O’Connor, for Keith Hamid
Ravin Pillay and Harval Bassi, for Roberto Leyva
Randall Barrs, for Brano Andrews
HEARD: September 24, 2019
REASONS – RULING ON STANDING
Petersen J.
INTRODUCTION
[1] Keith Hamid faces charges of conspiracy to import cocaine and importing cocaine. He is scheduled to proceed to trial with two co-accused, Roberto Leyva and Brano Andrews. They face similar charges. Mr. Andrews also faces a charge of breach of trust.
[2] At trial, the Crown will seek to adduce evidence of recordings of private communications intercepted by the police. All three accused allege that their right to be free from unreasonable search and seizure, under s. 8 of the Charter of Rights and Freedoms, was infringed by the interception of their private communications. Each has brought an Application pursuant to s. 24(2) of the Charter, seeking an Order excluding from trial all evidence obtained in a manner that infringed their s. 8 Charter rights.
[3] The Crown takes the position that Mr. Hamid has no standing to bring his Application. The standing of his two co-accused to bring their respective Applications is not in dispute.
[4] These Reasons deal only with the issue of Mr. Hamid’s standing.
[5] For the purpose of deciding this issue, I will assume (without concluding) that the intercepted communications purporting to capture the three co-accused are correctly attributed to them, per the Crown’s theory of the case: R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696.
BACKGROUND FACTS
[6] The charges in this case resulted from a lengthy RCMP investigation that initially targeted a Canada Border Services Agency officer named Patrick Ruddy. Mr. Ruddy is not one of the accused before the court.
[7] The police investigation began in February 2016, when it was reported to the RCMP that Mr. Ruddy had entered a secure air cargo warehouse while off-duty and had removed a package from a cargo shipment from Pakistan under suspicious circumstances. In March, April and May 2016, police conducted surveillance on Mr. Ruddy and obtained production orders, transmission data recorder warrants and tracking warrants for telephone numbers associated with Mr. Ruddy.
[8] Between September 2016 and April 2017, five successive sixty-day omnibus warrants were obtained by the police, authorizing wiretaps and audio probes (among other things). As each authorization neared expiry, the same affiant, RCMP Constable Kirsten Link, swore an Information to Obtain (“ITO”) for the next authorization. Each ITO included evidence that was derived from the fruits of the previous authorization. The ITOs sworn in support of the second, third, fourth and fifth authorizations relied upon and appended the earlier ITOs.
[9] The first authorization was issued by Justice Edwards on September 7, 2016. It authorized the interception of communications at Mr. Ruddy’s residence and in his vehicle, as well as communications using Mr. Ruddy’s cellphone and work email. Communications were authorized to be intercepted in respect of two offences: (a) breach of trust by a public officer and (b) conspiring to commit breach of trust. Mr. Ruddy was the only named “Principal” suspect in the authorization. Mr. Leyva and Mr. Andrews were both named as “Other Known Persons” whose communications may be intercepted. Mr. Hamid was not named anywhere in the authorization.
[10] The police implemented wiretaps and audio probes pursuant to the first authorization. They did not intercept any of Mr. Hamid’s communications. However, a private communication was intercepted in which Mr. Ruddy and Mr. Leyva allegedly discussed a plan to import cocaine from South America into Canada. This prompted the police to expand their investigation to include drug offences and to target Mr. Leyva as a “Principal” suspect.
[11] The second authorization was issued by Justice Edwards on November 4, 2016. It authorized the continued interception of communications on Mr. Ruddy’s cellphone and work email, as well as in Mr. Ruddy’s residence and in vehicles driven by him. It also authorized the interception of communications on Mr. Leyva’s cellphone, in his residence and in vehicles driven by him. Communications were authorized to be intercepted in respect of four offences: (a) breach of trust by a public officer; (b) conspiring to commit breach of trust; (c) conspiring to import a controlled substance into Canada; and (d) importing a controlled substance. Both Mr. Ruddy and Mr. Leyva were identified as “Principal” suspects. Mr. Andrews was listed as one of the “Other Known Persons” whose communications may be intercepted. Mr. Hamid was not named anywhere in the authorization.
[12] Mr. Hamid’s communications were first intercepted on November 18, 2016, pursuant to the second authorization. His text messages were intercepted on Mr. Leyva’s cellphone and his conversations were intercepted by the probe in Mr. Leyva’s vehicle. These communications caused the police to view Mr. Hamid as a suspect in the cocaine importation scheme that they were investigating.
[13] Consequently, Mr. Hamid was targeted (along with Mr. Ruddy, Mr. Leyva and Mr. Andrews) as a “Principal” suspect in the third authorization issued by Justice Edwards on December 16, 2016. The police were authorized to wiretap two cellphone numbers associated to Mr. Hamid. The offences in respect of which communications were authorized to be intercepted were the same as in the second authorization.
[14] The fourth authorization was issued by Justice McCarthy on February 9, 2017. The fifth authorization was issued by Justice Glass on April 7, 2017. There were some changes to the locations at which interceptions of communications were authorized, but Mr. Ruddy, Mr. Leyva, Mr. Andrews and Mr. Hamid were still listed as “Principal” suspects. The authorizations continued to target their cellphones, email accounts and vehicles, as well as Mr. Ruddy’s residence. There was no change to the offences in respect of which communications were authorized to be intercepted.
APPLICATIONS
[15] Mr. Hamid filed his Notice of Application on May 23, 2019. It challenges,
the Warrants and Orders granted with respect to evidence gathered from intercepted conversations and evidence from the phone numbers allegedly associated to both Keith Hamid and Roberto Leyva as well Warrants and Orders whose subsequent evidence purports to capture conversations involving Keith Hamid from probe recordings obtained from Roberto Leyva’s vehicle.
[16] Mr. Hamid’s Application involves both a facial and sub-facial attack on all five authorizations. The grounds for the Application are that the ITOs used to obtain the authorizations are deficient on their face (i.e. they lack the grounds necessary to have permitted the police to obtain wiretap authorizations) and were drafted negligently or designed in a manner to deliberately mislead the issuing justices.
[17] In his Notice of Application, counsel for Mr. Hamid states:
As this Applicant’s challenge of the Informations to Obtain in this case do not begin with the inclusion of this Applicant as a named Principal to alleged offences until December 2016, counsel for this Applicant takes the position that the two co-accused are in a superior and more ideal position to lead the arguments with respect to the challenge. … If the two co-accused of this Applicant can satisfy the Court that Charter breaches occurred with respect to the earlier authorizations, and that subsequently obtained evidence should be excluded, then it stands to reason that the same benefits and exclusions should be awarded this Applicant who only became known to investigators in late 2016.
[18] In the Notice of Application, Mr. Hamid further states that he “is prepared to be more specific with respect to grounds but is still awaiting the filing of applications and materials by the two other expected Applicants [i.e. his co-accused, Mr. Leyva and Mr. Andrews] whose investigative involvement pre-dates this Applicant by approximately ten (10) months”.
[19] The Notice of Application also states,
The Applicant is not alleging any additional breach of the Applicant’s rights that were not already present in the Informations to Obtain that preceded Keith Hamid’s investigative involvement in November 2016. As such, a common sense appreciation of the need to be responsible with regard to both natural resources and Court resources leads counsel for this Applicant to believe that a duplication of materials making the very same argument as the co-accused should be unnecessary.
[20] The relief sought in Mr. Hamid’s Application includes an Order granting him leave to cross-examine Cst. Link, the affiant who swore all the ITOs used to obtain the authorizations at issue, as well as an Order pursuant to s. 24(2) of the Charter excluding all evidence obtained from the intercepted communications.
[21] Mr. Leyva filed his Notice of Application on May 29, 2019. It seeks an Order permitting the cross-examination of Cst. Link and an Order pursuant to s. 24(2) of the Charter excluding all evidence derived directly or indirectly from the interception of private communications pursuant to the five authorizations obtained by the police. It alleges that the interceptions infringed Mr. Leyva’s s. 8 Charter right to be free from unreasonable search and seizure. More specifically, it alleges that,
There was no basis on the material before the issuing Justice of Authorization 1 for a finding of reasonable and probable grounds that the interception of the communications of the Applicant and other subjects would afford evidence of the named offences;
There was no basis on the material before the issuing Justice of Authorization 1 for a finding of investigative necessity; and
The material before the issuing justice of Authorization 1 was materially misleading as it related to both reasonable grounds and investigative necessity.
[22] In his Application, Mr. Leyva submits that the invalidation of the first authorization and the exclusion of evidence derived from it requires the exclusion of evidence obtained from all subsequent authorizations given that the issuance of each rests on the initial ITO that supported the first authorization and on evidence gathered pursuant to the first authorization. Mr. Leyva’s counsel adds,
Moreover, if Authorization 1 is found to have violated the Applicant’s section 8 Charter right, the doctrine of excision requires that all evidence obtained as a result of Authorization 1 be excised from consideration on the validity of all subsequent Authorizations, in which case the statutory preconditions to their issuance cannot be met on review.
[23] Mr. Andrews filed his Notice of Application on June 27, 2019, seeking leave to cross-examine Cst. Link and an Order excluding “all evidence derived from the interception of his communications through the entirety of the investigation.” Mr. Andrews supports and relies on the Application and factum of Mr. Leyva.
CROWN’S OBJECTION TO MR. HAMID’S STANDING
[24] The Crown opposes Mr. Hamid’s Application on the basis that he has no standing to bring it. Since Mr. Hamid was not named in the first authorization and his communications were not intercepted pursuant to it, the Crown argues that he had no reasonable expectation of privacy in the communications that were intercepted pursuant to it. It would follow, therefore, that Mr. Hamid’s s. 8 Charter rights were not engaged by the first authorization. The Crown argues that Mr. Hamid cannot rely on the breach of his co-accused’s Charter rights as the basis for either excision or exclusion of evidence.
DIFFERENCE BETWEEN EXCISION AND EXCLUSION OF EVIDENCE
[25] The standing issue in this case highlights a peculiarity in the jurisprudence with respect to s. 8 Charter violations and the relief available to remedy them. There is an inconsistency between the test under s. 24(2) for the exclusion of evidence obtained in a manner that infringed an accused’s s. 8 right to be secure against unreasonable search and seizure, and the test for excision of unconstitutionally obtained information during a s. 8 review of a search warrant.
[26] The test to be used on a s. 8 review of a search warrant or wiretap authorization was set out in the case of R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452, as follows: “If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.” The use of the verb “amplify” in this context is somewhat of a misnomer because, in many cases, the record will actually be redacted rather than augmented on review. It may be augmented where, for example, there was an inadvertent non-disclosure of a material fact by the affiant who swore the ITO. In many cases, however, information is excised from the record rather than added to it and the reviewing judge’s task is to determine whether there continues to be any basis for the decision of the authorizing judge.
[27] The 1993 trilogy of Supreme Court of Canada decisions in R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281, and R. v. Wiley, 1993 CanLII 69 (SCC), [1993] 3 S.C.R. 263, established the rule that a reviewing judge must excise from an ITO all references to evidence that was obtained in violation of an applicant’s Charter rights. Jurisprudence from the Supreme Court of Canada clearly establishes that the rule also requires the reviewing judge to excise all “erroneous” information from an ITO: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 56-58. I refer to this doctrine of excision as a “rule” because it is an automatic remedy granted to an accused person who shows that some of the evidence relied upon by the police in obtaining an authorization was obtained in breach of his or her Charter rights or was otherwise erroneous.
[28] As Code J. explained in R. v. Jaser, 2014 ONSC 6052, at para. 28, excision is not a s. 24(2) or s. 24(1) Charter remedy, “as it is rigid and categorical and it can lack proportionality, given the absence of any of the contextual and flexible balancing that is now well-established under both of these remedial Charter provisions.” As a result, “much stricter and more rigid remedial rules seem to apply at a pre-trial s. 8 review of an investigative tool, like a search warrant or wiretap authorization, than at a trial where guilt and innocence and liberty are at stake”: Jaser, at para. 32.
[29] This paradox in the jurisprudence has been the subject of other judicial comment by lower courts. For example, in R. v. Chau, [1997] O.J. No. 6322 (Ont. S.C.), at para. 50, aff’d on other grounds (2000), 2000 CanLII 17015 (ON CA), 150 C.C.C. (3d) 504 (Ont. C.A.), Dambrot J. stated:
I confess that I find it anomalous that evidence obtained as a result of a Charter breach, however technical, inadvertent or lacking in seriousness, must automatically be excluded from consideration in a warrant affidavit in order to prevent the state from benefitting from the illegal acts of police officers, while at trial where the accused is in jeopardy, the very same evidence is only excluded after the careful balancing mandated by s. 24(2).
[30] I have taken the time to highlight the difference between excision and exclusion of evidence under s. 24(2) of the Charter because I believe it is relevant to the issue of Mr. Hamid’s standing in this case. Its relevance will become apparent later in my reasons.
CHARTER RIGHTS ARE PERSONAL RIGHTS
[31] Any issue of standing must be determined from the starting point that a claim for relief under s. 24(2) of the Charter can only be made by a person whose own Charter rights have been infringed: R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at p. 619.
[32] Consequently, in an Application that challenges a wiretap authorization based on s. 8 of the Charter, the court must first decide whether the accused had a reasonable expectation of privacy in the subject matter of the search before assessing whether the search was conducted reasonably. If the accused does not have a privacy interest, then her or his Charter rights are not engaged and she or he does not have standing to bring the Application: R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at paras. 10-12.
[33] An accused person cannot rely exclusively on the breach of a third party’s Charter rights to obtain a remedy pursuant to s. 24(2), even where the Crown is seeking to rely on unconstitutionally obtained evidence to advance its case against the accused: R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128. However, an accused person’s standing to challenge the legality of an authorization that implicates her or his own privacy interests will not be compromised simply because the challenge entails consideration of a third party’s Charter rights: R. v. Shayesteh (1996), 1996 CanLII 882 (ON CA), 31 O.R. (3d) 161 (C.A.), at para. 40.
[34] The facts in Shayesteh were very similar to the facts in this case. Four successive wiretap authorizations were issued. The same affiant swore the ITOs for each authorization and the previous ITOs and authorizations were attached as exhibits to the subsequent ITOs. The Appellant was not directly targeted by the first two authorizations. He was, however, named in the subsequent authorizations because of information gathered through communications intercepted pursuant to the second authorization.
[35] More specifically, the “Principal” targets of the first authorization in Shayesteh included a man named Mr. Farhadi. Wiretaps implemented pursuant to the first authorization intercepted communications between Mr. Farhadi and another man named Mr. Daryoosh. The second authorization permitted interception of Mr. Daryoosh’s communications, which implicated the Appellant, who was then targeted directly by the third and fourth authorizations. These facts parallel the facts in the case before me.
[36] The Appellant in Shayesteh argued that Mr. Daryoosh was improperly targeted under the second authorization and that any information obtained as a result must be excised for the purpose of assessing the validity of the last two authorizations. The Crown objected to the Appellant’s standing to assert a violation of Mr. Daryoosh’s rights and argued that he had no right to demand excision of the information derived from any such violation. Charron J.A. held, at para. 40,
since the appellant’s own telephone calls were intercepted as a result of the targeting of Daryoosh in the second and third authorizations, he clearly had an expectation of privacy with respect to those communications. This expectation of privacy is sufficient to give him standing to dispute the legality of those interceptions. The fact that a consideration of the legality of these interceptions in effect entails a consideration of Daryoosh’s s. 8 rights, because the statutory requirements are identical to the constitutional requirements of s. 8, does not affect the appellant’s standing to bring his application.
[37] The Court of Appeal for Ontario’s decision in Shayesteh assists Mr. Hamid in this case, but only to the extent that it renders incontestable his standing to challenge the second authorization. His privacy interests were engaged by the second authorization because his own communications were intercepted pursuant to it. His standing to challenge the third and subsequent authorizations is not in dispute.
[38] Mr. Hamid cannot, however, rely on the decision in Shayesteh to establish that he has standing to challenge the first authorization. In Shayesteh, the Appellant did not seek to challenge the first two authorizations, so the question of his standing to do so was not addressed by the court.
STANDING TO CHALLENGE THE FIRST AUTHORIZATION
[39] In this case, the issue of standing arises because Mr. Hamid seeks to adopt the Application submissions of Mr. Leyva, which challenge the validity of the first authorization based on an alleged violation of Mr. Leyva’s and Mr. Andrews’s s. 8 Charter rights. The Crown argues that Mr. Hamid had no reasonable expectation of privacy in any of the communications that were intercepted pursuant to the first authorization and therefore cannot join in Mr. Leyva’s Application.
[40] The determination of whether an accused person has a reasonable expectation of privacy must be done contextually by considering the “totality of the circumstances”: Edwards, at para. 45. In his factum, Mr. Hamid’s counsel relies on this principle to argue that, “[i]n all meaningful respects, there was a single authorization that was repeatedly renewed upon its subsequent expiries” and that the “first authorization cannot be properly untangled from the subsequent authorizations”. He characterizes the Crown’s claim that Mr. Hamid was intercepted pursuant to the second authorization, but not the first, as “overly technical”. He submits that “the second authorization was chiefly a renewal of the first”, so although the first authorization expired nearly two weeks prior to the interception of Mr. Hamid’s communications, “it cannot be said that [Mr. Hamid] was not intercepted pursuant to the first”.
[41] Although this argument might prevail in different circumstances, it is not supported by the evidence in this case. I agree with Crown counsel’s submission that the second authorization was not simply a renewal of the first. As set out above, only Mr. Ruddy was targeted by the first authorization and the offences for which communications were authorized to be intercepted were Mr. Ruddy’s suspected breach of trust and conspiracy to commit breach of trust on January 19, 2016. Although one of the purposes of the second authorization was to continue intercepting Mr. Ruddy’s private communications to investigate the past breach of trust offences, the investigation shifted at that point and acquired a secondary purpose to investigate ongoing drug offences. At that time, Mr. Leyva was added as a named target in the second authorization and the purpose of intercepting his communications was to assist the police in investigating suspected ongoing drug importation offences.
[42] Moreover, as Crown counsel submits, had the second authorization simply been a renewal of the first, Mr. Hamid’s private communications would not have been intercepted. Mr. Hamid’s communications were captured when he texted Mr. Leyva’s cellphone number and during conversations recorded by a probe in Mr. Leyva’s vehicle. Mr. Leyva’s cellphone and vehicle were not authorized as sites of interception under the first authorization. The only locations targeted for interception in the first authorization were Mr. Ruddy’s cellphone, residence and vehicle. The police did not intercept Mr. Hamid’s communications at any of these locations. Indeed, the police never intercepted Mr. Hamid communicating with Mr. Ruddy at any point during the entire investigation.
[43] For the above reasons, I reject Mr. Hamid’s argument that his communications were effectively intercepted pursuant to the first authorization despite its expiry. He has not established that he had a reasonable expectation of privacy in any of the communications intercepted under the first authorization. I therefore conclude that Mr. Hamid does not have standing to challenge the first authorization.
[44] This conclusion does not, however, exhaust the inquiry into Mr. Hamid’s standing to bring his Application. As set out above, his Application seeks to challenge all five authorizations, not just the first one. There is no question that he has standing to challenge the second authorization (because his private communications were intercepted pursuant to it) and the third, fourth and fifth authorizations that specifically targeted him as a named “Principal” suspect. The issue is whether, in the context of challenging those four authorizations, he can seek excision of information from the supporting ITOs on the basis that the information was obtained in violation of his co-accused’s rights.
MR. HAMID’S ABILITY TO SEEK EXCISION
[45] This is where the distinction between excision and exclusion of evidence becomes relevant. A claim for relief under s. 24(2) of the Charter can only be made by a person whose own Charter rights have been infringed, but excision is not a s. 24(2) remedy. Consequently, an accused person who seeks to have information excised during a review of an authorization is not required to establish that the impugned information was obtained in violation of her or his own Charter rights.
[46] In light of the jurisprudence on the automatic excision of “erroneous” information, it would be incongruous to preclude an applicant from seeking to excise information that was unconstitutionally obtained except in circumstances where the applicant could show that her or his own Charter rights were infringed. As Bird J. noted in R. v. Guindon, 2015 ONSC 4317, at para. 8:
The law is well established that all erroneous material must be excised from an affidavit on a Garofoli review…. In all the cases that deal with the excision of erroneous information, there is no suggestion that only those errors which relate directly to an applicant are to be removed. Affidavits and ITOs contain a wealth of background information that doesn’t all pertain directly to each accused person. The activities of associates who are not charged may be referred to, as might places in which an applicant could not assert a privacy interest. If a mistake is make describing the activities of associates of an applicant, that erroneous material will be excised from the affidavit. The applicant does not need to establish a personal interest in the information to have it excised.
[47] The incongruence of the Crown’s position is revealed by considering the hypothetical outcome if Mr. Leyva’s Application were to result in a ruling that the first authorization violated his s. 8 Charter rights. In conducting a review of the second authorization pursuant to Mr. Hamid’s Application, I would be obligated to excise any “erroneous” information from the supporting ITO, regardless of whether or not that information pertained to Mr. Hamid, yet I would not similarly be obligated to excise the unconstitutionally obtained information unless the Charter breach infringed Mr. Hamid’s rights. Indeed, according to the Crown’s position, I would be precluded from excising such information simply because it was not obtained in violation of Mr. Hamid’s own Charter rights.
[48] I recognize that Plant, Grant and Wiley were all cases involving the excision of evidence obtained in violation of the accused persons’ own Charter rights. However, the underlying policy rationale for those decisions applies equally to situations where an accused person seeks to excise evidence gathered in violation of another person’s Charter rights. The doctrine of excision aims to prevent the state from benefitting from the illegal acts of police officers: Grant, at para. 64. It matters not whether the police have violated the rights of someone other than the accused. The court cannot condone such conduct.
[49] The Crown relies on the Court of Appeal for Ontario decision in R. v. Chang (2003), 2003 CanLII 29135 (ON CA), 173 C.C.C. (3d) 397 (C.A.), which it submits is dispositive of the standing issue in this case. The Crown argues that Chang is a binding precedent to the effect that an applicant can only seek excision of unconstitutionally obtained evidence if the acquisition of the evidence involved an infringement of her or his personal Charter rights. In my view, the decision in Chang is not that broad.
[50] In Chang, the Crown’s case at trial depended upon evidence of the private communications of the accused, which had been intercepted pursuant to two judicial authorizations issued in Ontario. The issuance of the Ontario authorizations was dependent on intercepted private communications of persons other than the accused, pursuant to a judicial authorization issued in Quebec in connection with a completely different immigration investigation (the “Quebec Immigration Authorization”). That Quebec Immigration Authorization was in turn dependent on evidence obtained from private communications intercepted pursuant to a series of other prior Quebec authorizations in unrelated investigations. The accused were not named parties in any of the Quebec authorizations, nor were their communications intercepted pursuant to them.
[51] The accused in Chang sought to challenge the legality of the Quebec Immigration Authorization, arguing that it was unlawful because Quebec police failed to establish that they had pursued other investigative procedures and that such procedures were unlikely to succeed, as required by s. 186(1)(b) of the Criminal Code of Canada. There was no question that they had standing to challenge the Ontario authorizations (which had resulted in interceptions of their private communications), but the Crown took the position that they did not have standing to challenge the Quebec Immigration Authorization.
[52] The accused’s purpose in challenging the legality of the Quebec Immigration Authorization was to undermine the foundation of the Ontario authorizations. The trial judge characterized their argument as a “but for” test for the existence of standing: but for the Quebec Immigration Authorization, the Ontario authorizations that intruded upon the accused’s privacy rights could not have issued.
[53] Despite rejecting this “but for” approach to standing, Molloy J. held that the accused had limited standing to challenge the Quebec Immigration Authorization. She concluded that it was important that she be satisfied that the impugned Quebec Immigration Authorization was granted by a judge who had jurisdiction to issue it and that the steps taken to implement it were lawful. However, she refused to embark on a full Garofoli review of whether there was a basis for the issuance of the Quebec Immigration Authorization.
[54] Molloy J. rejected the accused’s “but for” approach to standing, stating that it had “no logical cut-off point”: Chang, at para. 40. She noted that if the accused had standing to challenge the legality of the Quebec Immigration Authorization (beyond a limited challenge to the issuing judge’s jurisdiction and to the lawfulness of its implementation), then the accused would logically have standing to “move back another step” and challenge the legality of the prior authorization that produced evidence used to obtain the Quebec Immigration Authorization, and to step further back into the series of investigations that had unfolded in Quebec: Chang, at para. 40. Molloy J. noted, “This process could stretch into infinity”: Chang, at para. 40.
[55] On appeal, the appellants in Chang argued that the concerns expressed by the trial judge did not arise in their case because they were only seeking to go “one level back”. In response to this argument, the Court of Appeal for Ontario held, at para. 41,
[W]e agree with the trial judge that there needs to be a principled reason for taking the inquiry back even one level and a logical basis for stopping there. In our view, the trial judge articulated a principled and practical approach to the review of another province’s wiretap authorizations. In the present circumstances, where there is no evidence of a direct breach of a party’s Charter rights under the Quebec Immigration Authorization, the Ontario court should not review the sufficiency of the evidence giving rise to that authorization.
[56] In the case before me, Crown counsel and Defence counsel advance divergent interpretations of the above passage from para. 41 of the Court of Appeal decision in Chang. The Crown argues that it forecloses the possibility of an accused ever having standing to seek excision of unconstitutionally obtained information from an ITO if the constitutional violation did not infringe upon the accused’s own Charter rights. For the following three reasons, I share Defence counsel’s interpretation that the Court of Appeal for Ontario did not shut that door tight.
[57] First, the Court was careful to restrict its pronouncement to the specific facts of the Chang case, where the trial judge was asked to “review… another province’s wiretap authorizations”. The context of the case before me is very different. In this case, successive authorizations were issued based on cumulative ITOs, all arising out of one ongoing investigation by one police force. Moreover, the authorizations were all issued in Ontario.
[58] Second, the Court of Appeal in Chang restricted its pronouncement to “circumstances where there is no evidence of a direct breach of a party’s Charter rights” under the impugned authorization. The court did not specify that there needed to be evidence of a direct breach of the appellants’ own Charter rights. The court implied that evidence of a breach of a third party’s Charter rights could suffice.
[59] Finally, the Court of Appeal left open the possibility that, in a different case with different circumstances, there might be a “principled reason for taking the inquiry back” a level and a “logical basis for stopping there.”: Chang, at para. 41.
[60] The Crown relies on the following passage at para. 35 of the Court of Appeal decision in Chang to support its more restrictive interpretation of the decision:
The appellants rely upon R. v. Plant, R. v. Wiley and R. v. Grant [citations omitted]. The aforementioned trilogy of cases asserts that information obtained as a result of unlawful activity by the police should be excised by a reviewing court in determining the validity of a search warrant. However, each of those cases involved the breach of the applicant’s own Charter rights and the court excised the information on that basis. The trilogy is distinguishable from the case at bar in that the alleged unlawful evidence obtained as a result of the Quebec immigration Authorization was not obtained as a result of a violation of the rights of either of the appellants. Indeed, the appellants do not cite any cases in which a reviewing court excised information from an affidavit in support of a wiretap authorization where the impugned information was obtained as a result of the breach of a third party’s rights.
[61] Once again, I do not interpret this passage as narrowly as the Crown. The Court of Appeal did not say that there could never be a case in which the court would excise from an ITO information obtained as a result of the breach of a third party’s rights. Nor did the court suggest that Plant, Grant and Wiley precluded such a possibility. Rather, the court was simply disagreeing with the appellants’ submission that binding authority from Plant, Grant and Wiley necessitated granting their appeal.
[62] I note that since Chang was decided in 2003, there have been some cases in which standing was granted to an accused to seek excision of information from an ITO on the basis that the information was obtained in violation of a third party’s constitutional rights: see, for example, Guindon; R. v. Battista, 2011 ONSC 771; R. v. Dookhram, Ordonio and Lu, 2019 ONSC 5502, at paras. 93-100; and R. v. Vu, [2004] O.J. No. 5681, at para. 16.
[63] Mr. Hamid relies on the decision in Guindon. In that case, three occupants of a vehicle – two males and one female – had been unlawfully arrested and searched by police. At the trial of one of the male passengers, Bird J. excluded evidence seized from his person pursuant to s. 24(2) of the Charter. The other two occupants of the vehicle were not before the court, so there was no application to exclude evidence seized from their person or from the vehicle. That evidence included cellphones. The vehicle stop and the seizure of the phones were later relied upon in ITOs to support authorizations to intercept communications of four individuals, one of whom was the second male occupant of the vehicle. He became one of the applicants in Guindon.
[64] The applicants in Guindon had standing to challenge the authorizations impacting their privacy interests, but the Crown argued that they did not have standing to seek excision (from the ITOs) of references to the items seized from the female passenger’s person. The Crown submitted that the applicants could not rely on the unlawfulness of the search of a third party. Bird J. ruled that the accused were entitled to seek excision of illegally obtained evidence that was used to support authorizations that impacted their privacy interests, even though the unlawfulness of the acquisition of the evidence was based on the infringement of a third party’s rights.
[65] Similarly, in Battista, Parfett J. excised from an ITO, in support of a wiretap authorization, all references to an illegal search of a private residence during which the police came upon a box and knapsack that contained cocaine and firearms. Even though none of the accused had any privacy interest in the premises, the accused had a privacy interest in their communications that were captured through the wiretap. Parfett J. found, at para. 50, that the accused therefore had standing to assert that the search was unlawful in the context of their application to exclude the wiretap evidence.
[66] I recognize that the case law on this issue is not uniform. There are contrary decisions in the jurisprudence: see, for example, R. v. Ritchie, 2016 ONSC 765 and R. v. Serré, 2011 ONSC 3749. As Aitken J. noted in Serré, at para. 31, there are several cases that support the lack of standing of an accused to seek that evidence in an ITO “be excised due to an alleged unconstitutional infringement of the privacy rights of third parties.” In my view, such cases are distinguishable from Guindon, where the unconstitutional infringement of third party rights was not simply alleged but rather had already been declared by the trial judge. In Guindon, the applicants were not seeking to “go back one level” and conduct a full review of an authorization prior to the one that engaged their privacy interests. The review at the prior level had already been done.
[67] This is the basis upon which Bird J. distinguished the facts before her in Guindon from the Chang decision. Bird J. noted, at para. 11, that the applicants before her were not asking the court to conduct a full Garofoli review. She had previously ruled that the impugned evidence was obtained as a result of unlawful arrests and searches. She therefore noted that “there can be no concern about the process extending into infinity because the ruling has already been made”: Guindon, at para. 11.
[68] I agree with Bird J. that where a court is asked to review an authorization that is dependent for its issuance upon evidence gathered pursuant to a prior authorization that has already been found to be unconstitutional, the reviewing court is not being asked to reach back even one level. The illegality of the prior authorization has already been determined. In those circumstances, there is evidence before the reviewing judge of a breach of a party’s Charter rights, which is precisely what was lacking in Chang.
[69] In Battista, there had been no prior ruling on the constitutionality of the search that resulted in the evidence excised from the ITO, but the search was warrantless and therefore prima facie unreasonable. The evidence of a warrantless search was, in my view, sufficient to distinguish the facts in Battista from the facts in Chang. It constituted a principled reason for going back one level in the review process. Moreover, it obviated the need for a full Garofoli review of the prior search.
[70] In this case, Mr. Hamid’s challenge to the second and subsequent authorizations is similar to the challenge brought by the applicants in Guindon – and distinguishable from the challenge brought in Chang – in so far as Mr. Hamid is not seeking a full Garofoli review of the sufficiency of the grounds upon which the first authorization was granted. Rather, he intends to rely on the outcome of his co-accused’s Applications challenging the first authorization.
[71] Unlike the Guindon case, I have not yet made a ruling with respect to the legality of the first authorization. However, Mr. Hamid’s co-accused have filed Garofoli Applications in respect of the first authorization and those Applications must be heard and decided prior to the trial. It is those Applications – not Mr. Hamid’s Application – that will be taking the process “back one level” in this case. There is a principled basis for going back one level, namely Mr. Leyva and Mr. Andrews’s reasonable expectation of privacy in the subject matter of the first authorization. I am not concerned about the process “extending into infinity” because the constitutional validity of the first authorization will logically be determined at that stage, namely in the companion Applications of Mr. Hamid’s co-accused.
[72] I recognize that my decision and the decision of Bird J. in Guindon appear to create an anomaly in the case law with respect to excision. Where an accused person has uncontested standing to challenge an authorization because they have demonstrated a reasonable expectation of privacy in the subject matter of the search, their entitlement (or “standing”) to obtain an order for excision of information from the supporting ITO depends on when, as opposed to whether, the impugned information was found to violate a third party’s constitutional rights. In his factum, Crown counsel makes this point as follows:
This distinction [in Guindon] based on pragmatism or practical expediency – the degree of judicial review required – runs contrary to the established law on standing. It conflicts with the basic legal principle that Charter enforcement is limited to the applicant’s personal rights. Moreover, it results in the capacity to seek excision of third party breaches turning on an arbitrary, external fact: whether or not the third party has already litigated the breach [or, in accordance with my reasons above, whether the third party is a co-accused who is litigating the breach].
[73] In my view, the approach adopted by Bird J. in Guindon and endorsed by me in these reasons is not arbitrary. Rather, it strikes an appropriate balance between two important policy rationales that animate the jurisprudence. First, courts are concerned that the state ought not be permitted to benefit from the unlawful conduct of the police. Second, courts also have pragmatic concerns about judicial economy; judges cannot realistically be expected to “extend back into infinity” when reviewing authorizations. In some cases, there will be a tension created by these two concerns. The Court of Appeal for Ontario has stated that in such cases, there must be a principled basis to go back even one level and a logical basis for stopping there. However, where the facts of a case do not give rise to any pragmatism concerns, the reviewing judge’s decision should be animated by the public interest in ensuring that unlawful police conduct is not rewarded.
[74] The Crown argues that this approach conflicts with the basic legal principle that “Charter enforcement is limited to the applicant’s personal rights”. That is not an entirely accurate statement of the law. For example, as noted by Charron J.A. in Shayesteh, the fact that a challenge to the legality of an authorization entails consideration of third party rights does not affect the applicant’s standing to bring a s. 8 application.
[75] The Crown’s argument fails to appreciate the important distinction between excision and exclusion of evidence. Although a claim for relief under s. 24(2) of the Charter can only be made by a person whose own Charter rights have been infringed, excision is not a s. 24(2) remedy. It does not require proof of a violation of the applicant’s rights. Rather, excision is automatically granted as a remedy to correct errors in an ITO.
CONCLUSION
[76] Mr. Hamid does not have standing to bring a Garofoli-type Application in respect of the first authorization. He cannot seek exclusion of evidence as a remedy pursuant to s. 24(2) of the Charter on the basis that the first authorization infringed the Charter rights of his co-accused.
[77] However, Mr. Hamid does have standing to challenge the second and subsequent authorizations. If I conclude, in the context of his co-accused’s Applications, that the first authorization was unlawful, then Mr. Hamid is entitled to seek excision of references to any evidence unconstitutionally obtained pursuant to the first authorization, because that evidence was used to secure subsequent authorizations that impacted his own privacy rights. Moreover, he has standing to seek exclusion of evidence unlawfully obtained pursuant to the second, third, fourth and fifth warrants, but that remedy will only be available if the balancing of factors under s. 24(2) of the Charter necessitates such remedial relief.
[78] Unlike the doctrine of excision, exclusion of evidence is not an automatic remedy. In other words, Mr. Hamid has standing to bring only part of his Application, namely the part that challenges the second and subsequent authorizations. His request for leave to cross-examine the affiant, Cst. Link, is denied. Such a cross-examination would only be for the purpose of eliciting evidence to assist the court in deciding Mr. Leyva’s and Mr. Andrews’s challenges to the first authorization. Mr. Hamid does not have standing in those Applications.
[79] In the interests of efficient use of court resources, Mr. Hamid’s counsel will be invited to make submissions at the hearing of his co-accused’s Applications regarding the following questions:
a) In the event that Mr. Leyva or Mr. Andrews establish that the first authorization was unconstitutionally obtained, which information does Mr. Hamid seek to have excised from the ITOs supporting the second and subsequent authorizations?
b) If information is excised from the ITOs, could the second and subsequent authorizations have been issued absent the excised information?
c) If I conclude that the second and subsequent authorizations could not have been issued and therefore violate Mr. Hamid’s s. 8 Charter rights, what is the basis upon which Mr. Hamid submits that evidence against him should be excluded pursuant to s. 24(2)?
[80] Mr. Hamid’s counsel is instructed to avoid repeating and duplicating submissions made by Mr. Leyva’s counsel, given his undertaking to adopt and rely on those submissions.
Petersen J.
Released: October 9, 2019
COURT FILE NO.: 1003/18
DATE: 2019 10 09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
KEITH HAMID, ROBERTO LEYVA and BRANO ANDREWS
REASONS – RULING ON STANDING
Petersen J.
Released: October 9, 2019