Court File No.: 1003/18 Date: 2020-01-03

Ontario Superior Court of Justice

Between:

Her Majesty the Queen

• and -

Brano Andrews, Roberto Leyva and Keith Hamid

Counsel: Brendan Gluckman and Ian Bell, for the Crown Randall Barrs, for the accused Brano Andrews Ravin Pillay and Harval Bassi, for the accused Roberto Leyva Liam O’Connor, for the accused Keith Hamid

Heard: September 24, 27 and 30, 2019

RULING ON EXCLUSION OF EVIDENCE

Petersen J.

OVERVIEW

[1] The three co-accused in this case face charges of conspiracy to import cocaine and importing cocaine. Mr. Andrews also faces a charge of breach of trust.

[2] At trial, the Crown intends 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, guaranteed by s. 8 of the Canadian 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 rights.

[3] The police interceptions of private communications were conducted pursuant to five successive judicial wiretap authorizations. Mr. Andrews and Mr. Leyva are challenging the validity of all five authorizations. Mr. Hamid challenges only the second through fifth authorizations; he does not have standing to challenge the first authorization.

[4] I issued a previous ruling regarding Mr. Hamid’s standing on October 9, 2019: R. v. Hamid, Leyva and Andrews, 2019 ONSC 5622. There is no issue with respect to Mr. Andrews’s and Mr. Leyva’s standing to bring their Applications.

[5] The Crown concedes that, if the first wiretap authorization is found to be invalid, all subsequent authorizations will fall because the subsequent authorizations were obtained based on information gathered pursuant to the first authorization.

[6] The following issues are raised by the Applications before me:

a) Should leave be granted to Mr. Leyva and Mr. Andrews to cross-examine the police officer who swore the affidavits upon which the judicial wiretap authorizations were based?

b) Were the Applicants’ s. 8 Charter rights infringed by the interception of their private communications? The following sub-issues (among others) will need to be addressed in order to answer this question:

i. Is the first authorization facially invalid insofar as the pre-condition of investigative necessity was not demonstrated?

ii. Is the first authorization facially or sub-facially invalid insofar as reasonable and probable grounds were lacking?

iii. Is the police officer’s affidavit in support of the first authorization materially misleading such that it subverts the prior authorization process?

c) If the wiretap authorizations were obtained in contravention of the Applicants’ s. 8 Charter rights, should the evidence obtained pursuant to the constitutionally invalid authorizations be excluded under s. 24(2) of the Charter?

LEAVE TO CROSS-EXAMINE THE AFFIANT

[7] Mr. Leyva and Mr. Andrews sought and were granted leave to cross-examine Constable Link, whose sworn evidence was used to obtain the impugned wiretap authorizations. These are my written reasons for granting that request.

[8] There is no concern in this case about the need to protect confidential informants, as none were the source of information in Cst. Link’s impugned affidavits.

[9] Cross-examination was necessary to enable the Applicants to make full answer and defence to the charges against them. The Applicants are challenging not only the facial validity of the wiretap authorization but also its sub-facial validity. An allegation has been made that Cst. Link deliberately misled the authorizing judge because she and her police colleagues were aware that they did not have reasonable and probable grounds to obtain an authorization. Cst. Link’s credibility is therefore a central issue in dispute. Cross-examinations were required in order for me to make an informed, fair and just decision regarding her credibility and her alleged misrepresentations.

[10] I was satisfied by the materials filed and the submissions of defence counsel that the cross-examination of Cst. Link could elicit testimony tending to discredit her and would elicit evidence relevant to the alleged deficiencies in the statutory pre-conditions to authorization.

[11] To avoid unnecessary prolixity in the proceeding, I imposed limits on the cross-examinations. I permitted the Applicants to cross-examine Cst. Link in the following three areas:

a) The allegedly misleading treatment in her affidavits of reasonable grounds and of the police investigative plan;

b) The reasons for the failure of the police to engage certain investigative steps, including but not limited to the three scenarios specifically mentioned in the investigational planning report; and

c) The alleged intention of the police to use the wires to investigate other unnamed offences for which there was only a suspicion and no reasonable and probable grounds.

[12] Before turning to the other issues in dispute, I will outline the framework for my analysis.

ANALYTICAL FRAMEWORK

Rationale for Prior Authorization Process

[13] In a case such as this, in which the validity of a wiretap authorization is attacked based on an allegation that police deliberately subverted the authorization process, it is helpful to recall the rationale for the existence of a prior authorization process. As La Forest J. stated in R. v. Duarte, 1990 150 (SCC), [1990] 1 S.C.R. 30, at para. 22, the reason for the protection afforded by a prior authorization process 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.

[14] Despite the “insidious danger” that would be inherent in allowing the state an unfettered discretion to intercept and record private communications without prior judicial authorization, La Forest J. recognized, at para. 23, that the state may be justified, in certain circumstances, in deploying electronic surveillance tactics:

This is not to deny that it is of vital importance that law enforcement agencies be able to employ electronic surveillance in their investigations of crime. Electronic surveillance plays an indispensable role in the detection of sophisticated criminal enterprises. Its utility in the investigation of drug related crimes, for example, has been proven time and again.

[15] The efficacy of electronic surveillance as an investigative technique would be eviscerated if the police were required to give their targets notice of their intention to intercept and monitor the targets’ private communications. The prior authorization process therefore necessarily involves an ex parte application procedure by the police. The application is made in writing to a Superior Court judge and must be supported by a sworn affidavit in which the affiant deposes to certain material facts, as set out in s. 185 of the Criminal Code, R.S.C. 1985, c. C-46.

Police Duty of Transparency

[16] Any police officer seeking an ex parte authorization has an obligation to make full and frank disclosure of material facts in their supporting affidavit: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 46. The reasons for this duty are obvious. The authorizing judge in an ex parte wiretap application and the absent party who is the target of the requested authorization are literally at the mercy of the police affiant. The ordinary checks and balances of the adversary system of litigation are not operative when one of the interested parties is not present. The target of the authorization is not able to challenge the factual contentions advanced by the police. These circumstances are fraught with potential risk of abuse of the court’s powers: R. v. Liew, 2012 ONSC 1826, at paras. 158-159. Full and frank disclosure by the police affiant is therefore critical to mitigate the inherent risk of injustice.

[17] A corollary to the police affiant’s duty to make full and frank disclosure is the requirement that the information contained in the supporting affidavit not “trick” the authorizing judge. The affidavit placed before the judge must not be misleading, either by virtue of the language used or by strategic omissions: Araujo, at paras. 46-47.

[18] When an application is made for judicial authorization of electronic surveillance, the authorizing judge must examine the affidavit material with an awareness that constitutional rights are at stake and that the individual whose privacy interests are engaged is not represented in the ex parte process. As the Supreme Court of Canada stated in Araujo, at para. 29, the authorizing judge therefore “stands as the guardian of the law and of the constitutional principles protecting privacy interests.” The judge fulfills this role by ensuring that the police have satisfied the statutory preconditions to obtaining the requested authorization.

Role of the Authorizing Judge

[19] Before issuing an authorization for the interception of private communications, the authorizing judge must be satisfied of two preconditions set out in s. 186(1) of the Criminal Code, namely: (a) that it would be in the interests of justice to issue the authorization and (b) that 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.

[20] The first precondition (i.e., that issuance of the authorization would be in the interests of justice) requires demonstration of reasonable and probable grounds to believe that an offence has been, or is being, committed and that the authorization sought will afford evidence of that offence: Duarte, at para. 24; R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at paras. 33, 35-36. This precondition protects individuals “against unwanted fishing expeditions by the state and its law enforcement agencies”: Araujo, at para. 29.

[21] “Reasonable and probable grounds” entails something less than the civil standard of proof on a balance of probabilities and less than a prima facie case, but more than mere possibility or suspicion: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114; R. v. DeBot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, at para. 47; R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at para. 17. Suspicion, no matter how strong or reasonable, does not meet the requisite standard. The standard is met at “the point where credibly-based probability replaces suspicion”: Hunter v. Southam, 1984 33 (SCC), [1984] 2 S.C.R. 145, at p. 167. In other words, the evidence supporting an application for a wiretap authorization must satisfy the authorizing judge that it is probable – not just possible – that an offence has occurred or is occurring, and that it is probable – not just possible – that intercepting a person’s private communications will afford evidence of that particular offence.

[22] The “totality of the circumstances” must always be considered in assessing the existence of reasonable and probable grounds: DeBot, at para. 53; R. v. Greffe, 1990 143 (SCC), [1990] 1 S.C.R. 755, at para. 9.

[23] The second statutory precondition is proof of investigative necessity. There are three distinct ways in which investigative necessity can be shown. It suffices if the authorizing judge is satisfied of one of the branches of the test in s. 186(1)(b): Araujo, at para. 28.

[24] Investigative necessity has been interpreted by the courts with a simultaneous awareness of the competing values of enabling criminal investigations by law enforcement and protecting privacy rights: Araujo, at paras. 22 and 26. The police affiant has a responsibility to fully inform the authorizing judge of the progress of the police investigation to date as well as the reasons why other investigative techniques are not viable in the circumstances: R. v. Morrison (1989), 1989 7114 (ON CA), 50 C.C.C. (3d) 353, at p. 369 (Ont. C.A.). The authorizing judge need not be satisfied that the interception of private communications is being used by the police as a “last resort”. However, the authorizing judge must be satisfied that, “practically speaking [there is] no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry”: Araujo, at para. 29.

[25] These statutory prerequisites governing the issuance of wiretap authorizations reflect the minimum constitutional standards required by s. 8 of the Charter.

Role of the Reviewing Judge

[26] When the constitutional validity of an authorization is challenged by an accused person whose private communications were intercepted pursuant to it, the reviewing judge has a different role than that of the original authorizing judge. The Supreme Court of Canada and the Court of Appeal for Ontario have both repeatedly cautioned judges that they must work “within a narrow jurisdictional compass” when reviewing authorizations and the materials in support of them: R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20. The case law establishes the following guiding principles:

a) The reviewing judge does not substitute his or her view for that of the authorizing judge: Garofoli, at para. 56; R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 8.

b) The review does not consist of a de novo hearing on the sufficiency of the grounds for the impugned authorization: Garofoli, at para. 55; Araujo, at para. 51.

c) “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”: Garofoli, at para. 56. Lebel J. stated the test as follows in Araujo, at paras. 51 and 54: “the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued.”

d) “Amplification” of the record upon review may consist of redaction as well as augmentation of the material that was before the authorizing judge. Before deciding whether there was evidence upon which the impugned authorization could have issued, the reviewing judge must expunge from the record any evidence unconstitutionally obtained and any erroneous or misleading information: R. v. Plant, 1993 70 (SCC), [1993] 3 S.C.R. 281, at p. 298; Araujo, at para. 53. If information is found to be erroneous despite good faith on the part of the police, then amplification is permitted to correct the information: Araujo, at para. 58. Provided that it is not part of a deliberate attempt to mislead the issuing justice, the record may be augmented by evidence on review showing the true facts: Plant, at pp. 298-99; Araujo, at para. 56.

[27] In determining whether, based on the amplified record, the authorizing judge could have granted the impugned authorization, the reviewing judge must have regard for the two statutory preconditions to the issuance of an authorization and to the case law interpreting those provisions of the Criminal Code.

[28] Where a reviewing judge determines that there was at least some evidence that might reasonably be believed upon the basis of which the authorizing judge could have concluded that both statutory pre-conditions were met, then the reviewing judge generally ought not to interfere with the authorizing judge’s decision. However, the reviewing judge has residual discretion to set aside an authorization, despite the presence of a proper evidentiary predicate for its issuance, “where the police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like”: R. v. Paryniuk, 2017 ONCA 87, 134 O.R. (3d) 321, at paras. 62 and 69, leave to appeal refused, [2017] S.C.C.A. No. 81; R. v. Colbourne (2001), 2001 4711 (ON CA), 157 C.C.C. (3d) 273 (Ont. C.A.); Araujo, at para. 54. This residual discretion exists to protect the integrity of the pre-authorization process and the important preventive function it serves.

[29] The threshold for setting aside a wiretap authorization based on this residual discretion is high: Lahaie v. Canada, 2010 ONCA 516, 101 O.R. (3d) 241, leave to appeal refused, [2010] S.C.C.A. No. 371, at para. 40: Paryniuk, at para. 62. The police conduct in question must be so subversive of the pre-authorization process as to amount to an abuse of process: R. v. Vivar, 2009 ONCA 433, at para. 2; Paryniuk, at para. 62. The Court of Appeal for Ontario stated the test as follows: “Where an affiant has been shown to have deliberately provided false material statements, or to have deliberately omitted material facts from an affidavit, with the intention of misleading the issuing judicial officer, the warrant may be set aside.” Paryniuk, at para. 62.

[30] The onus to prove deliberate intention to subvert the authorization process rests with the applicant who is challenging the validity of the impugned authorization. The standard of proof is on a balance of probabilities: Quebec (Attorney General) v. Laroche, 2002 SCC 72, [2002] 3 S.C.R. 708, at para. 67; Paryniuk, at para. 43.

[31] Where no subversion of the process is alleged or none has been established, but the reviewing judge concludes, based on the amplified record, that the authorizing judge could not have been satisfied of either one of the two statutory pre-conditions, then the authorization must be found to be unlawful upon review. Since the statutory preconditions are identical to the minimum constitutional requirements imposed by s. 8 of the Charter, such an unlawful authorization must necessarily also be found to be unconstitutional: Duarte, at paras. 24-25.

SUMMARY OF FACTS

[32] The police investigation in this case began as an investigation into a suspected breach of trust offence committed by a Canada Border Services Agency (CBSA) officer named Patrick Ruddy. Mr. Andrews is also a CBSA officer.

[33] On January 19, 2016, Mr. Ruddy entered the secure area of a restricted air cargo warehouse (the “ACI warehouse”) wearing his CBSA uniform, even though he was off duty. He inquired about a flight from Pakistan and was advised that it had not yet arrived. He spoke to a warehouse employee named Jonathan Delgado then left the warehouse in a blue pickup truck. He returned approximately half an hour later, accessed the secure part of the facility, and once again spoke to Mr. Delgado. He then directed a warehouse employee to use a forklift to move one of four containers from the Pakistan flight off a trailer and place it on the warehouse floor. He entered the container and removed nine boxes, which he placed on a pallet. He then removed one of the boxes, placed it under his arm, and left with it. He was not accompanied by another CBSA officer, contrary to CBSA protocol. He travelled to and from the warehouse in a blue pickup truck, rather than a marked CBSA vehicle. He did not provide a receipt to the warehouse staff or complete the requisite paperwork for a CBSA seizure.

[34] A warehouse employee reported Mr. Ruddy’s odd behaviour to the warehouse security supervisor. The supervisor reviewed the security video footage, confirmed the absence of requisite documentation for the seizure, and discovered there was no record of a missing box from the shipment. He then alerted the CBSA about Mr. Ruddy's highly suspicious behaviour. The CBSA in turn reported it to the RCMP, who commenced a criminal investigation into whether Mr. Ruddy’s conduct amounted to a breach of trust by a public official, contrary to s. 122 of the Criminal Code and conspiracy to commit a breach of trust.

[35] Between February and August 2016, RCMP investigators took multiple steps to advance the investigation into Mr. Ruddy’s conduct, including covert surveillance, tracking warrants, production orders and transmission data recorder warrants. They also spoke to a Ford sales executive who confirmed that the blue pickup truck driven by Mr. Ruddy in the warehouse security footage was a Ford F150 model.

[36] Production orders for Mr. Ruddy's phone revealed that it had numerous communications with Mr. Leyva’s phone straddling the day Mr. Ruddy retrieved the box from the ACI warehouse. Their phones were in communication 91 times on the day before the suspected offence, five times on the day of the suspected offence (after Mr. Ruddy retrieved the package) and once the day after the suspected offence. Mr. Leyva’s phone number was the number most frequently in contact with Mr. Ruddy’s phone that week. Between December 1, 2015 and July 8, 2016, Mr. Leyva’s phone was in contact with Mr. Ruddy’s phone 2,233 times. Transmission data recordings established that, between May 10, 2016 and July 8, 2016, Mr. Leyva was the person Mr. Ruddy communicated with most frequently. Furthermore, surveillance officers observed Mr. Ruddy meeting with Mr. Leyva and observed Mr. Leyva driving a blue Ford F150 pickup truck.

[37] Mr. Andrews’s phone was also among Mr. Ruddy’s top five contacts. The transmission data recording results showed that Mr. Andrews’s phone communicated with Mr. Ruddy’s phone 813 times between December 1, 2015 and July 8, 2016. Surveillance established that Mr. Andrews met with Mr. Ruddy by his vehicle in the parking lot of the CBSA building on April 7, 2016. It also established that, five days later, Mr. Andrews attended the ACI warehouse with Mr. Ruddy and Mr. Delgado (the ACI employee who was present the night that Mr. Ruddy retrieved the suspicious package from the warehouse). This meeting at the ACI warehouse occurred on April 12, 2016, at a time when neither Mr. Ruddy nor Mr. Andrews was on CBSA-related duties.

[38] Background checks were conducted. They produced no relevant or recent information relating to criminality. Mr. Ruddy and his associates were previously “not known” to police.

[39] The police investigators reached a point, during the summer of 2016, when they believed that the interception of Mr. Ruddy’s private communications was required to advance the investigation further. The lead investigator, Cpl. Rodney Gray, prepared an Investigational and Planning Report (“IPR”) with accompanying budget and submitted it for approval up the RCMP chain of command.

[40] The IPR outlined the next steps in the investigation. Its stated objectives were: (1) to gather evidence to successfully prosecute Patrick Ruddy and his co-conspirators involved in committing the offences of breach of trust and conspiracy and (2) to continue to identify co-conspirators who may be involved in the conspiracy and identify their roles, responsibilities and involvement level as it pertains to these offences.

[41] The proposed investigatory summary of how these objectives would be achieved was set out as follows in the IPR:

1. Gather evidence on RUDDY and his co-conspirators through the interception of RUDDY's communications (Part VI).

2. If there is limited communications, investigators plan to execute up to 3 scenarios, each scenario building on the last, in an effort to stimulate communications and prompt RUDDY to make contact with his co-conspirators and speak to the past offences.

[42] Both Mr. Leyva and Mr. Andrews were named in the IPR as subjects of the investigation, along with numerous other associates of Mr. Ruddy. The plan was to target Mr. Ruddy and intercept his private communications, including his cell phone conversations, text messages and CBSA email messages. The plan also included installing audio probes in Mr. Ruddy’s vehicle and residence.

[43] The synopsis of the investigation plan in the IPR stipulates, “If there are no discussions about the offences, investigators have three scenarios that could be executed to stimulate RUDDY to speak with his co-conspirators in relation to the incident that occurred on January 19, 2016” [emphasis added]. Elsewhere in the IPR, Cpl. Gray reiterates that investigators “have planned and will execute up to 3 scenarios, in sequence, in an effort to stimulate the lines/probes if there is little or no communications of the offences” [emphasis added].

[44] The three stimulation tactics are set out in the IPR as follows:

(1) With the assistance of the CBSA, forward a suspicious vehicle alert to CBSA employees’ work email addresses with a photograph of the blue pick up truck that Mr. Ruddy used on January 19, 2016. The email will request employees to report any information they may have in relation to the vehicle. Releasing a picture of the vehicle will prompt RUDDY to contact his co-conspirators and discuss the reason behind the email and discuss what had occurred that evening.

(2) Should opportunities present itself, investigators will conduct one or more interviews with several of RUDDY’s associates that investigators have identified and believe would have knowledge of the offences. The intent of the interview is to induce the associates to contact RUDDY in relation to the interview and discuss what occurred.

(3) Conduct overt surveillance on RUDDY and several of his associates to stimulate conversation that the police are watching them.

[45] The IPR investigative plan and budget for the investigation were approved by RCMP management on August 31, 2016.

[46] Constable Kirsten Link, the warrant officer on the RCMP investigation team, swore an affidavit in support of an Application for a Part VI authorization one week later, on September 7, 2016. The affidavit was 77 single-spaced pages in length. It set out the results of the investigative steps undertaken up to that point. Cst. Link identified the purpose of the requested authorization as gathering evidence to determine the commodity of the package retrieved by Mr. Ruddy and the identity of the persons involved in the conspiracy, as well as to establish their roles and responsibilities.

[47] The only named “principal known person” in the Affidavit was Mr. Ruddy. The offences in respect of which authorization was sought to intercept his private communications were the breach of trust offences from January 19, 2016. Cst. Link’s affidavit included the following comments:

I have no evidence at this time to state that the box CBSA officer Ruddy took from the shipment contained drugs or other contraband. However, based on my experience it is common for drug traffickers to place drugs within shipments without the knowledge of the shipper or consignee. The drug traffickers use legitimate shipping companies to transport their drugs by placing them within the shipment prior to it being sent and then taking out the drugs before it is received by legitimate companies. I have included the above information in order to present the possibility that the content of the box taken by CBSA officer Ruddy could be a controlled substance but have no evidence at this time to confirm.

In my experience it is common for persons conducting illegitimate drug activities to have several persons involved in the organizing and planning of the drug shipments. The shipping and trafficking of illegal substances typically requires time, resources and several persons to facilitate the importation of drugs. I believe that other persons in addition to CBSA Officer Ruddy may be involved, such as, Delgado and other unknown associates, such as, the person(s) who added the box to the shipment in Pakistan.

[48] In several parts of her affidavit, Cst. Link made comments about the stimulation tactics that investigators planned to deploy. For example, she stated,

As part of the investigative plan, … investigators will provide a photograph of the blue pickup truck that Ruddy used the night of January 19, 2016 so it can be forwarded to all CBSA work email addresses, including Ruddy’s work email, as a suspicious vehicle alert. The suspicious vehicle alert will request that CBSA employees report any information they have on the vehicle. Investigators anticipate that Ruddy may forward the email to his associates and/or have conversations with them regarding the photo alert and the offences.

[49] She deposed her belief that intercepting Mr. Ruddy’s CBSA work email “will allow police to gather additional evidence in relation to the offences listed in the affidavit.”

[50] Later in the affidavit, she reiterated, “if the requested authorization is granted investigators plan to have CBSA send an email to all CBSA employees (including Ruddy) seeking information regarding the suspicious blue truck which was observed at ACI on January 19, 2016”. She also stated that investigators plan to conduct overt surveillance on Mr. Delgado. She swore to her belief that these stimulation tactics would result in Mr. Delgado contacting Mr. Ruddy and that interception of their communications would afford evidence of the offences under investigation. She made similar statements about the investigators’ plan to interview and/or to conduct overt surveillance on several other known associates of Mr. Ruddy if the authorization was granted. She also stated that investigators “plan on interviewing” the owner of the blue pickup truck regarding the whereabouts of his vehicle on January 19, 2016 and his association to Mr. Ruddy.

[51] With respect to Mr. Leyva, Cst. Link stated in her affidavit, “if the requested authorization is granted investigators plan to have CBSA send” the suspicious vehicle email. She swore that “investigators will also interview Leyva about [the] blue truck and conduct overt surveillance on Leyva” to stimulate communications between him and Mr. Ruddy. She stated that she had reasonable grounds to believe the interception of these communications would afford evidence of the offences under investigation.

[52] With respect to Mr. Andrews, Cst. Link stated,

I don’t know if Andrews assisted Ruddy with the shipment at the ACI warehouse on January 19, 2016 but investigators plan on interviewing Andrews in relation to his association with Ruddy. I believe our attempt to interview and conduct overt surveillance on Andrews may elicit conversations between Andrews and Ruddy. The interception of Ruddy’s private communications with Andrews regarding Andrews interview/overt surveillance may assist investigators in obtaining information on Andrews’s role in this investigation and information on the offence.

[53] In her affidavit, Cst. Link named a total of ten known associates of Mr. Ruddy whose communications might be intercepted if the authorization was granted, including the Applicants Leyva and Andrews. She stated that she did not know whether these individuals assisted Mr. Ruddy in the offence or to what extent they may have been involved, but she swore, “I believe that additional investigation, implementing the investigative plan (overt surveillance, CBSA truck bulletin and interviews) coupled with the interception of the private communications of Ruddy with his known associates will assist investigators in gathering additional evidence of the offence.”

[54] In several places in the affidavit, Cst. Link described the investigator’s plan to release the photograph of the blue truck with a suspicious vehicle alert to all CBSA employee email accounts, and to interview Mr. Ruddy’s associates and conduct overt surveillance on them. She swore to her belief that the requested authorization “along with other police investigational techniques, will assist investigators in gathering” evidence to identify the contents of the box that Mr. Ruddy retrieved, identify his co-conspirators, and prosecute those involved in the offences.

[55] The suspicious vehicle bulletin addressed to CBSA employee email accounts was described by Cst. Link in her Affidavit as “the first step in the investigation plan”. She stated, “in the event that the truck bulletin is not effective, investigators intend to conduct interviews to stimulate conversations, if and when the opportunity presents itself”. Elsewhere in the affidavit she repeated that interviews would only be conducted “if time and opportunity presents itself.”

[56] The requested authorization was issued by Justice Edwards on September 7, 2016. Its duration was limited to 60 days. The investigation continued. Four additional Part VI authorizations were issued, the first on November 1, 2016 and the last on April 7, 2017. Each was issued as the prior authorization was about to expire. Cst. Link was the affiant for each of the successive authorizations. She appended her prior affidavit to each successive affidavit.

[57] Mr. Ruddy remained a principal target of the investigation throughout. Mr. Leyva was named as an “other known person” in the first authorization and was added as principal target in the second and subsequent authorizations. Mr. Andrews was named as an “other known person” in the first two authorizations and as a “principal” known target in the latter three authorizations. Mr. Hamid was not mentioned in the first two authorizations, but he was listed as a “principal” known target in the third and subsequent authorizations.

[58] Mr. Leyva’s and Mr. Andrews’s private communications were intercepted pursuant to all five authorizations. Mr. Hamid’s communications were intercepted pursuant to the second and subsequent authorizations. The three co-accused were intercepted allegedly communicating about a conspiracy to import cocaine through Pearson International Airport. Investigators interdicted two shipments of bricks of cocaine weighing 7.2 kg and 5.5 kg respectively. After each interdiction, the applicants were intercepted allegedly discussing their failure to obtain a missing shipment. The applicants were also intercepted discussing another missing shipment of "twenty keys."

[59] At no point during the investigation did the RCMP deploy the stimulation tactics outlined in Cst. Link’s affidavit. No email was disseminated to CBSA employees regarding the suspicious vehicle bulletin. No interviews were conducted with Mr. Ruddy’s associates. No covert surveillance was executed.

ANALYSIS OF FIRST AUTHORIZATION

[60] The Crown conceded that, if the communications intercepted pursuant to the first authorization were unconstitutionally obtained, then the doctrine of excision would render the second and subsequent authorizations deficient, such that all the communications intercepted throughout the course of the investigation would be unconstitutionally obtained in violation of the Appellants’ s. 8 rights. In light of my earlier ruling with respect to Mr. Hamid’s standing to challenge the second and subsequent authorizations and to seek excision of information obtained in violation of his co-accused’s Charter rights, the Crown conceded that this would extend to all three accused in this case, not just to the Applicants Leyva and Andrews who have standing to challenge the first authorization.

[61] I will therefore initially restrict my reasons below to the grounds for challenging the first authorization. I will conduct a review of the subsequent authorizations only if the first authorization is found to be lawful.

INVESTIGATIVE NECESSITY

[62] The Applicants (Leyva and Andrews) argue that the affidavit in support of the first authorization failed to demonstrate investigative necessity and that the first authorization is therefore deficient on its face.

[63] Cst. Link’s affidavit contains evidence that numerous investigative steps had been undertaken by the police between January 2016 and August 2016, including video enhancement and screening of security video footage from the ACI warehouse, covert surveillance of Mr. Ruddy and some of his associates, background checks on Mr. Ruddy’s associates, tracking warrants, production orders and transmission data recorder warrants. Despite these efforts, it is clear from the affidavit that investigators did not know whether any of Mr. Ruddy’s known associates were co-conspirators in the breach of trust offences. Moreover, they had no information regarding the nature of the suspected contraband in the package that Mr. Ruddy had removed from the ACI warehouse on January 19, 2016. The investigation was stalled.

[64] The affidavit reveals that, at that point in time, the police had only interviewed one witness, namely the ACI warehouse security supervisor. Ten individuals were identified by the investigators as being acquainted with Mr. Ruddy and circumstantially associated with his activities on January 19, 2016. They were named as “other known persons” in Cst. Link’s affidavit.

[65] The Applicants argue that the police investigation could have been advanced by interviewing Mr. Ruddy’s known associates. Cst. Link deposed that each of them would have been interviewed once the wires and probes were running, if time and opportunity presented itself.

[66] The evidence establishes that this avenue (i.e., conducting interviews) was available to the police and was even contemplated by the police, but the investigators chose not to pursue it. The Applicants therefore submit that, on the face of the record before the authorizing judge, reasonable alternate investigative methods were available to the police.

[67] This submission misapprehends the purpose of the proposed witness interviews. It is clear from the evidence that the sole purpose of interviewing Mr. Ruddy’s associates was to induce them to contact him in relation to the interview and prompt Mr. Ruddy to react by speaking to his co-conspirators about the police investigation into his activities on January 19, 2016. The point was to generate communications that would supply evidence to the investigation. In her affidavit, Cst. Link clearly states that the investigators did not believe the interviews themselves were likely to produce any information useful to the investigation.

[68] The affidavit establishes that the investigators were in regular contact with the CBSA’s Security and Professional Standards Directorate, which had originally requested the investigation. They were receiving information from those individuals within the CBSA who could reasonably be assumed to have an interest in co-operating with the investigation. The police concluded that they were unlikely to receive assistance by interviewing associates of Mr. Ruddy who were potential suspects in the investigation. It is not my role, as a reviewing judge, to critique the investigators’ conclusions about the efficacy of interviews as an overt technique to obtain information regarding the offences under investigation: R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at paras. 222-223.

[69] In her affidavit, Cst. Link deposed,

I believe interviews by themselves will not enable investigators to obtain the necessary evidence to meet the objectives of this authorization and prosecute those involved in the offences. I believe by interviewing Ruddy’s associates it will prove useful when used in conjunction with the interception of private communications which will allow investigators to gather the necessary evidence to achieve the objectives of this investigation.

[70] I must defer to reasonable inferences that the authorizing judge could have drawn from the evidence before him. Justice Edwards was entitled, if he saw fit to do so, to place considerable weight on the Cst. Link’s opinions as to the likely success of interviews as an investigative technique. As noted by Court of Appeal in R. v. Lajeunesse (2006), 2006 11655 (ON CA), 208 O.A.C. 385, at para. 22, police officers probably know more about such matters than most judges.

[71] Cst. Link explained in her affidavit that investigators had not yet conducted witness interviews because they did not want to alert Mr. Ruddy or his co-conspirators to the fact that Mr. Ruddy’s conduct was being investigated. If the interviews were conducted before wires and audio probes were installed, the opportunity to intercept private communications prompted by the interviews would be lost: R. v. Valentine, [2009] O.J. No. 5957, at para. 16. The authorizing judge could have concluded, based on this evidence, that interviews needed to be postponed until after the authorization was obtained.

[72] There was credible evidence in the affidavit upon which the authorizing judge could have concluded that, absent the interception of private communications, the nature of the contraband in the package retrieved by Mr. Ruddy and critical details regarding the co-conspirators involved in the offence would remain shrouded in secrecy. The authorizing judge could have concluded, based on the evidence, that there was no viable alternative method to meaningfully advance the investigation at that point.

[73] The challenge to the first authorization based on purported lack of demonstrated investigative necessity is therefore dismissed.

REASONABLE AND PROBABLE GROUNDS

[74] The Applicants’ arguments regarding the reasonable and probable grounds requirement consists of both a facial and sub-facial challenge to the validity of the first authorization.

Facial Challenge

[75] The Applicants do not dispute that Cst. Link’s affidavit provides ample grounds for the belief that breach of trust offences had been committed by Mr. Ruddy on January 19, 2016. It sets out the highly unusual and suspicious circumstances in which he was observed removing a package from a shipment from Pakistan. The issue raised by the Applicants relates to whether the affidavit demonstrated reasonable and probable grounds to believe that intercepting Mr. Ruddy’s private communications would afford evidence of the offences under investigation.

[76] The first authorization was not sought in connection with an investigation into alleged ongoing criminal activity. Although Cst. Link suspected that Mr. Ruddy may have been involved in a drug importation scheme, she candidly acknowledged in her affidavit that she did not have reasonable and probable grounds to believe that the package retrieved by Mr. Ruddy on January 19, 2016 contained drugs. She also did not have reasonable and probable grounds to believe that Mr. Ruddy was engaged in any ongoing importation of contraband.

[77] The first authorization was sought only in connection with the breach of trust offences that were committed on or before January 19, 2016. The Applicants argue that the police did not have reasonable and probable grounds to believe that communications intercepted in September 2016 would afford evidence of offences that had occurred nine months earlier.

[78] During her cross-examination, Cst. Link testified that because investigators were looking for evidence of “offences that had occurred historically”, they were “not sure” that Mr. Ruddy and his co-conspirators would be talking about the offences months later. She said that was why the stimulation tactics were going to be deployed, in order to prompt Mr. Ruddy and his co-conspirators to discuss the offences. Based on this evidence, I conclude that the existence of the requisite reasonable and probable grounds to believe that interception of private communications would afford evidence of the offences was entirely dependent upon the stimulation tactics being deployed.

[79] The Applicants argue that the reasonable and probable grounds requirement cannot be “prospective” and contingent on other facts not yet in existence. They submit that the stimulation tactics were a future event, the results of which were unknown, and that therefore those tactics could not form the basis of reasonable and probable grounds at the point in time when the authorization was issued.

[80] The Applicants’ argument on this point starts from first principles, namely the test set out in Hunter v. Southam, at p. 168: “reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure” [emphasis added]. I agree with the Applicants that this test requires evidence of objectively ascertainable facts at the point in time when reasonable and probable grounds for a search are being determined – namely, when the search warrant is being granted – not at some future date: R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 75. Otherwise, the protections afforded by the pre-authorization process would be rendered meaningless as unreasonable searches could be justified ex post facto.

[81] However, the Applicants’ reading of the case law is too narrow. It cannot apply so restrictively to wiretap authorizations because that would seriously undermine the state’s interest in detecting and preventing crime. There is an inherent uncertainty, in any wiretap investigation, about what the future will produce. Unlike a physical search of premises, where credible evidence can establish reasonable and probable grounds to believe that certain items are presently located at the place to be searched, electronic surveillance necessarily entails the interception of communications that have not yet occurred, the content of which cannot be ascertained in advance. The review of wiretap authorizations must take this contextual reality into account.

[82] Moreover, in cases like this one, where a past offence is being investigated, police would be unduly hampered if they could not rely on the efficacy of stimulation tactics as part of their reasonable and probable grounds to believe that the interception of future communications will afford evidence of the offence. The statutory requirement of investigative necessity means that police are often obligated, absent urgent circumstances, to engage in conventional investigative techniques before seeking an authorization to intercept private communications. The deployment of those other techniques consumes time. In practice this means that the police will commonly need to rely on stimulation tactics at a later date, in order to prompt suspects to communicate about past offences. To require the deployment of stimulation tactics before seeking authorization to intercept the ensuing communications would severely hamstring the police in their efforts to investigate crime. It would, in most cases, deprive them of the opportunity to intercept the very communications that will afford evidence of the offence: Valentine, at para. 16.

[83] In this case, the evidence before the authorizing judge consisted of a constellation of facts known to the investigators, including their plan to take steps to stimulate communications between suspected co-conspirators about the offences. Cst. Link deposed in her affidavit that certain stimulation tactics would be deployed. She swore to her belief that “implementing the investigative plan (overt surveillance, CBSA truck bulletin and interviews) coupled with the interception of the private communications” would assist in gathering evidence of the offences. There was therefore some reliable evidence upon which the authorizing judge could have concluded that there were reasonable and probable grounds to believe the intercepted communications would afford evidence of the offences.

[84] The Applicants submit that the mere possibility that other known persons might react to the stimulation tactics by speaking to Mr. Ruddy about the offences is insufficient to satisfy the standard of reasonable and probable grounds to believe that interceptions of private communications will afford evidence of the offences. The Applicants refer to several passages in the affidavit in which Cst. Link deposed her belief that the implementation of stimulation tactics “may” result in co-conspirators contacting Mr. Ruddy and “may elicit” conversations between them that “may assist” investigators.

[85] For example, with respect to Mr. Andrews, Cst. Link stated,

I believe our attempt to interview and conduct overt surveillance on Andrews may elicit conversations between Andrews and Ruddy. The interception of Ruddy’s private communications with Andrews regarding Andrews interview/overt surveillance may assist investigators in obtaining information on Andrews’s role in this investigation and information on the offences. [emphasis added]

[86] In other parts of her affidavit, Cst. Link used stronger language to describe her belief in the likely success of the stimulation tactics. With respect to Mr. Leyva, for example, Cst. Link stated,

Investigators will also interview Leyva about [the] blue truck and conduct overt surveillance on Leyva. I believe this will result in Leyva calling Ruddy. If police are authorized to intercept Ruddy’s private communications with Leyva, I have reasonable grounds to believe this will afford evidence and information of the offences. [emphasis added]

[87] The Applicants’ argument about the standard of reasonable and probable grounds fails to appreciate the distinction between the statutory preconditions for the issuance of an authorization and the test for naming an individual as an “other known person” whose communications may be intercepted pursuant to the authorization. Investigators are not required to demonstrate reasonable and probable grounds to believe that the interception of each named person, individually, will afford evidence of the specified offences.

[88] The obligation for an affiant to identify “known” persons arises from s. 185(1)(e) of the Criminal Code, which requires the affiant to include in her affidavit the name, address and occupation of any person “the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence.” Subsection 186(4)(c) requires the authorization to "[s]tate the identity of the persons, if known, whose private communication are to be intercepted.”

[89] The threshold (in s.185(1)(e)) for naming an individual as an “other known person” in an affidavit and authorization is modest. There must be reasonable grounds to believe that his or her interception "may assist the investigation of the offence." This is not an onerous burden. Reasonable and probable grounds to believe that the named person was involved in the offence or that his or her communications will afford evidence of the offence are not required: R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, at para. 105; R. v. Mahal, 2012 ONCA 673, 113 O.R. (3d) 209, at paras. 70-73, 78 and 81; R. v. Chesson, 1988 54 (SCC), [1988] 2 S.C.R. 148, at para. 20.

[90] In this case, both Applicants were listed as “other known persons” in Cst. Link’s affidavit and were named as such in the first authorization. Based on the frequency of their communications with Mr. Ruddy, the timing of those communications in relation to the date of the offences, and the circumstances, timing and location of their meetings with Mr. Ruddy, there was sufficient evidence upon which the authorizing judge could have concluded that there were reasonable grounds to believe the investigation might be assisted by intercepting their private communications with Mr. Ruddy.

[91] When Cst. Link deposed that she believed the interception of communications between Mr. Ruddy and other known persons “might” relate to the offences and “might assist” the investigation, she was establishing the requisite basis for naming those individuals as “other known persons” in the authorization. The issuance of the authorization was not based on this evidence alone, but rather on the totality of the evidence in the affidavit as a whole: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 241, at para. 82.

[92] There was sufficient believable evidence in the affidavit upon which a finding of reasonable and probable grounds could have been made.

[93] The Applicants’ facial challenge to the authorization based on purported lack of demonstrated reasonable and probable grounds is therefore dismissed.

Sub-Facial Challenge

[94] I will now turn to the sub-facial challenge to the first authorization, which was the primary ground advanced by the Applicants to have the evidence obtained pursuant to the authorizations excluded under s. 24(2) of the Charter.

[95] The Applicants argue that authorizing judge was deliberately misled by the police affiant. They submit that the misleading statements in Cst. Link’s affidavit must be excised. They further submit that the necessary excision renders the authorization deficient as to reasonable and probable grounds. Finally, they argue that, in light of the serious police misconduct and abuse of process, I should exercise my discretion to set aside the authorization in order to protect the integrity of the pre-authorization process.

[96] The alleged deception by the police relates to the difference between the investigative plan outlined in the RCMP’s internal IPR document and the plan that was described in the affidavit presented to the authorizing judge.

[97] Cst. Link acknowledged during her cross-examination that the next phase of the investigation, as outlined in the IPR, consisted of two steps, the second of which was contingent on the outcome of the first. The IPR states that investigators were planning to monitor communications on Mr. Ruddy’s cell phone and on audio probes installed in his residence and vehicle. It was only “if there [was] little or no communications” about the offences intercepted by the wires and probes that investigators planned to take the second step of deploying stimulation tactics to prompt relevant communications. During her cross-examination, Cst. Link agreed that the IPR envisioned that investigators would first listen to Mr. Ruddy’s private communications and would execute stimulation tactics “if and only if” no communications about the offences were intercepted. She agreed that the plan reflected in the IPR was a two-step plan: “Get the wires, wait and see what happens … if nothing happens on the wires, then deploy the stimulation tactics”.

[98] Cst. Link testified that, although she did not author the IPR, she would have read it at the time and would have been aware of its contents because she was required to convey the investigative plan to the authorizing judge in her sworn affidavit.

[99] In her sworn affidavit, Cst. Link presented an investigative plan that is materially different from the two-step plan outlined in the IPR. Unlike the IPR, the affidavit did not represent to the authorizing judge that investigators intended to “wait and see” what communications were intercepted once the wires and probes were installed before deciding whether or not to execute the stimulus plan. Throughout the affidavit, Cst. Link repeatedly asserted that, if the authorization is granted, investigators “will provide” a photograph of the blue pickup truck that Mr. Ruddy used the night of January 19, 2016 so it can be forwarded to all CBSA email addresses as a suspicious vehicle alert. She referred to this suspicious vehicle bulletin as “the first step in the investigation plan” [emphasis added].

[100] In her affidavit, Cst. Link identified two additional stimulation tactics that the investigators planned to undertake, but she qualified her statements about their implementation by suggesting that investigative discretion would be exercised regarding the timing of their deployment. Although she repeatedly stated that investigators “plan to” interview and conduct overt surveillance on Mr. Ruddy’s known associates, she twice stated that interviews would only take place “if time and opportunity presents itself”. She also stated that investigators intended to conduct interviews only “in the event that the truck bulletin is not effective” in stimulating relevant communications about the offences.

[101] At no point in her affidavit did Cst. Link state or even imply that investigators intended to delay deploying the suspicious vehicle bulletin while they waited to see what communications were intercepted by the wires and audio probes. Although she was clear that the three stimulation tactics would not necessarily be deployed at once, and that not all three tactics might ultimately be executed, she unequivocally represented that the CBSA email suspicious vehicle bulletin would be the first step in the investigative plan as soon as the wires and audio probes were authorized.

[102] In other words, the order of the two steps in the IPR investigative plan was inverted in her affidavit. In the IPR, the proposed order was to (1) get on the wires and, if no relevant communications were intercepted by the wires, then (2) implement one or more of the three stimulation tactics. In her affidavit, she represented that the plan was to (1) send the suspicious bulletin email as a first step (and possibly implement the other stimulation tactics) and then (2) get on the wires to see what relevant communications could be intercepted.

[103] When cross-examined on her affidavit, Cst. Link denied that she misrepresented the investigative plan to the authorizing judge. She testified that there was a change in the plan after the IPR was approved by RCMP management on August 31, 2016 and before she swore her affidavit and submitted it to the authorizing judge on September 7, 2016. She stated that the decision to change the plan was a team decision, not hers alone, and that her immediate supervisor, Cpl. Gray, would have reviewed and approved her affidavit before it was submitted.

[104] Cpl. Gray’s notes confirm that he did, in fact, review the affidavit and complete a supervisor’s checklist in respect of it on September 7, 2016. The checklist is not in the record and there is no evidence regarding its contents.

[105] The Applicants argue that Cst. Link’s evidence about a change in plans is not credible. They rely on the content of the IPR and the fact that none of the stimulation tactics were ever deployed by the police. They argue that the failure to implement the stimulus plan is evidence that the investigators were following their initial two-step “wait and see” plan (as outlined in the IPR), even though Cst. Link had presented a substantially different plan to the authorizing judge.

[106] Moreover, the Applicants argue that Cst. Link intentionally misled the authorizing judge. They submit that she must have been aware that, absent deployment of stimulation tactics, the police did not have reasonable and probable grounds to believe that intercepting Mr. Ruddy’s communications in September 2016 would afford evidence of breach of trust offences from January 2016. They allege that she therefore deliberately misrepresented in her affidavit that the stimulation tactics would be executed to bolster her claim to reasonable and probable grounds.

[107] The Crown takes the position that there was no material misrepresentation by Cst. Link. The Crown argues that the investigators honestly intended to execute the stimulation tactics, as outlined in Cst. Link’s affidavit, but unanticipated intervening events rendered their deployment inadvisable and, as a result, the investigative plan changed.

[108] The evidence in the record establishes that the first authorization was issued on September 7, 2016. Mr. Ruddy’s cell phone was tapped at some point after September 10 and prior to September 12, 2016. An audio probe was installed in his condominium on September 14, 2016 and another probe was installed in his vehicle on September 15, 2016. Cpl. Gray’s notes reflect that “maintenance” was performed on the audio probe in the residence on September 29, 2016.

[109] On September 16, 2016, a text exchange between Mr. Ruddy’s phone and that of one of his known associates was intercepted by police. Police believed that it provided evidence of the commission of a new breach of trust offence. Specifically, during the text exchange, Mr. Ruddy allegedly offered to provide a friend with CBSA flashes to sew onto his luggage in order to expedite his customs clearance and increase his exemption.

[110] On October 2, 2016, a thirty-minute conversation between Mr. Ruddy and Mr. Leyva was intercepted on the audio probe in Mr. Ruddy’s vehicle. Police believed that the conversation related to a conspiracy to import cocaine from South America. As a result, the focus of the investigation expanded to include suspected ongoing drug offences involving both Mr. Ruddy and Mr. Leyva. This shift in the investigation was made clear to the authorization judge when the second authorization was sought in November 2016.

[111] In her affidavit sworn on November 1, 2016, Cst. Link expressed the investigators’ belief that interviewing individuals associated with Mr. Ruddy or Mr. Leyva at that point in time could jeopardize the investigation. She stated that such interviews “would likely result in them being alerted to this investigation and taking measures to insulate themselves from detection and hide/destroy evidence”. She explained that “investigators plan to interview individuals later in the investigation”.

[112] The Crown argues that the authorizing judge could have allowed for the exercise of investigative discretion in respect of the timing of the deployment of the stimulation tactics. The Crown relies on the decision in Valentine, in which Pardu J. recognized (at para. 72) that the timing of the execution of stimulating tactics “may well be a matter of some delicacy.”

[113] The Crown further argues that delay in the deployment of the stimulation tactics was inherent in the plan presented in Cst. Link’s affidavit because the wires and audio probes had to be installed before any stimulation tactics were executed. The installation of the listening devices could only be achieved by covert police operations to access Mr. Ruddy’s residence and vehicle. Such operations require both planning and opportunity, which takes time. The Crown argues that Cst. Link was not required to articulate this inherent delay explicitly in her affidavit because it would have been obvious to the authorizing judge.

[114] I agree with the Crown’s submission that some delay was inherent in the plan. I also agree that an investigative plan is not a straight-jacket. Investigations are fluid. Police need to be able to respond to unanticipated circumstances so as not to compromise an investigation. It would not be reasonable to impute nefarious motives or find intent to deceive an authorizing judge simply because an investigation took an unanticipated turn that deviated from the plan presented to the authorizing judge. A potential change in plans is foreseeable in any investigation. When it occurs, it does not necessarily constitute circumstantial evidence of an intent to mislead the authorizing judge who was presented with the initial plan.

[115] However, in this case, the evidence does not support the Crown’s contention that unanticipated intervening events necessitated a change in plans that just happened to coincide with the initial “wait and see” plan. Rather, the evidence supports the Applicant’s contention that the police always intended to implement their “wait and see” plan (as set out in the internal IPR), notwithstanding that Cst. Link represented a different plan to Justice Edwards.

[116] Contrary to the Crown’s submission, a determination that Cst. Link’s affidavit was misleading does not require a finding that the police never intended to deploy any stimulation tactics. In my view, the determination of whether the affidavit was misleading depends on when the police intended to deploy the stimulation tactics. If the police genuinely intended to implement the plan set out in the affidavit, then the first step of the investigation, immediately after obtaining the authorization, would have been to deliver the suspicious vehicle bulletin to all CBSA employees’ email accounts. Subsequent steps in the plan, including the timing of any additional stimulation tactics, were to be left to the investigative discretion of the police, but the plan set out in the affidavit did not allow for investigative discretion with respect to the suspicious vehicle bulletin.

[117] As noted earlier in my reasons, the execution of at least one stimulation tactic was a necessary component of Cst. Link’s reasonable and probable grounds to believe that interception of Mr. Ruddy’s private communications in September 2016 would afford evidence of his suspected offences from January 2016. Cst. Link’s affidavit clearly stated that the interviews and covert surveillance of Mr. Ruddy’s associates were discretionary tactics that may or may not be deployed, depending on the progress of the investigation. Consequently, without the promised CBSA email bulletin, the statutory preconditions for issuance of the authorization could not have been met. Timely deployment of the email, as soon as the wires and probes were running, could not be left to the discretion of the police.

[118] I understand that investigators needed to wait until after the audio probes were installed before sending the CBSA email with the photograph of the blue truck. If the email had the desired stimulus effect, Mr. Ruddy could engage in communications with co-conspirators in his home or vehicle, which the investigators would not capture. There is, however, no reasonable explanation for the failure to deploy the CBSA email upon the completed installation of the second audio probe on September 15, 2016.

[119] The text messages (about CBSA flashes) intercepted on September 16, 2016 do not explain the police failure to send the suspicious vehicle email bulletin. Those messages provided evidence of a new breach of trust offence that was unrelated to the offences allegedly committed on January 19, 2016. The unauthorized distribution of CBSA flashes had nothing to do with the suspected importation into Canada of contraband. Delivery of the suspicious vehicle bulletin therefore would not have jeopardized the investigation into the new breach of trust offence.

[120] It was not until the investigators intercepted the conversation attributed to Mr. Ruddy and Mr. Leyva on October 2, 2016 that evidence was obtained that could have impacted the course of the investigation and caused investigators to postpone the deployment of stimulation tactics. By then, the police had been intercepting Mr. Ruddy’s private communications for seventeen days. This is, in my view, compelling evidence that the police investigation was not quickly derailed by unanticipated developments while following the plan described by Cst. Link in her affidavit. Rather, the police were following their initial “wait and see” phase of the investigative plan set out in the IPR.

[121] No amount of reasonable investigative discretion could contemplate permitting the police to engage in this “wait and see” approach. An initial delay of a few days before sending the CBSA email would not have been problematic if it were explained by the practical and logistical requirements of time to install the necessary electronic devices. However, the ongoing interception of private communications for over two weeks beyond the date when the second probe was installed – in the absence of any of the stimulating tactics to prompt communications about the offences under investigation – amounted to intelligence gathering without the requisite reasonable and probable grounds. It was precisely the type of “fishing expedition” that the Supreme Court of Canada warned against in Araujo.

[122] The delivery of the CBSA suspicious vehicle bulletin was supposed to be the “first step” in the investigation after the wires and probes were authorized, yet there is no evidence that the email message had been drafted, let alone discussed with or delivered to the CBSA for dissemination. This absence of evidence amounts to further circumstantial evidence that the investigators had no intention of sending the email right away. They were following their two-step “wait and see” plan, for which they did not have judicial authorization. Indeed, they could not have obtained authorization for the “wait and see” plan because it lacked the requisite reasonable and probable grounds.

[123] For the above reasons, I conclude that the affidavit presented to the authorizing judge in support of the first authorization was materially misleading. I am not, however, persuaded on a balance of probabilities that Cst. Link or other members of her investigative team engaged in a deliberate and conscious effort to deceive the authorizing judge.

Deliberate Deception by Police

[124] I do not accept the totality of Cst. Link’s evidence. In particular, I reject as not credible her testimony that there was a change in the investigative plan between the date of approval of the IPR and the swearing of her affidavit one week later. Given the need to obtain internal RCMP approval of the IPR, the team approach to the investigation, and the time and effort that was obviously devoted by Cst. Link to drafting the lengthy and detailed affidavit, I find it implausible that the investigation plan would have changed so significantly at the eleventh hour, with no documentation of the decision to make the change.

[125] Cst. Link testified that she had only a “faint recollection” of the plan changing. She could not recall when it ostensibly changed, who was present when the decision was made to make the change, what discussions led to the change or whether the Crown was consulted about the change. She had no notes relating to the change even though she attended the investigation team meetings. She stated that the team had multiple meetings every week and she could not remember them all. She conceded that she “could only guess” that her supervisor, Cpl. Gray, “would’ve” been involved in the decision to change the plan because he is obligated to complete a supervisor’s check list with respect to the final draft of the Affidavit before it gets sworn and submitted.

[126] Cst. Link’s testimony about the ostensible change of plan was so vague as to be unreliable. It was obvious from the manner in which she answered (and did not answer) questions during her cross-examination that she has no specific recollection of a meeting or of any discussion in which a decision was made to change the investigative plan set out for management approval in the IPR. The fact that her supervisor, Cpl. Gray, completed a check list with respect to her Affidavit is not, without more, probative of the existence of a formal decision to change the plan. An equally probable explanation of the check list is that Cpl. Gray, a superior officer, is partially responsible for the misleading affidavit evidence submitted to the authorizing judge.

[127] I have struggled with the question of whether Cst. Link is simply an unreliable witness on this point or is an untruthful one. At times during her cross-examination, she seemed to be genuinely struggling to recall events that occurred more than three years ago. She occasionally appeared confused. I have considered the possibility that her statements were vague because they were based on honest assumptions about what must have transpired, rather than on a clear recollection of actual events – in which case she ought to have conceded her lack of recall, rather than trying to fill in the blanks with speculation. After much reflection, I am persuaded on a balance of probabilities that she was not being truthful, even about assumptions as opposed to recollections, when she unequivocally and repeatedly asserted that there had been a change in the investigative plan.

[128] Up until that point in her cross-examination, her answers to questions were forthright. The delivery of her testimony became tentative when she started talking about the purported change in the investigative plan. From then on, her answers were characterized by the type of obfuscation that frequently accompanies false evidence. Her repeated insistence that there was a change of plans – despite the lack of any documentation to that effect and despite her own inability to recall the specifics of when or why the ostensible change occurred – suggests that she fabricated the story in order to cover up what she recognized was a failure on her part to fulfill her duties as a warrant officer. I conclude, on a balance of probabilities, that she invented the purported change of plans during her testimony to try to detract from the misleading nature of her description of the investigative plan in her sworn affidavit.

[129] During her cross-examination, Cst. Link maintained that the plan reflected in her affidavit was “very similar” to the plan set out in the IPR. She relied on the stipulation, in two places in her affidavit, that interviews and covert surveillance would only be deployed as stimulation tactics “if time and opportunity presents”. She asserted that these statements in her affidavit reflect and are consistent with the “wait and see” approach described in the IPR. She stated, “There’s only – there’s only a slight change. It’s not, it’s not an earth-shattering change of plan. There’s just the phase two part.” From the context of her testimony as a whole, I interpret the latter comment about the “phase two part” as a reference to the two-step “wait and see” approach set out in the IPR.

[130] One possible explanation for Cst. Link’s evidence is that she genuinely believes the two investigation plans are only “slightly” different and that she did not make a material misrepresentation in her affidavit. In my view, that possibility is improbable. It would suggest a degree of ignorance that is incompatible with Cst. Link’s training and experience. It is clear from both the content of her affidavit and her testimony that she understood the stimulation tactics were an essential component of the requisite reasonable and probable grounds. In her affidavit, she deposed that “implementing the investigative plan (overt surveillance, CBSA truck bulletin and interviews) coupled with the interception of the private communications of Ruddy with his known associates will assist investigators in gathering additional evidence of the offence.” Before me, she testified that “the whole plan was to stimulate the lines”. Given the level of sophistication of her understanding, she cannot sincerely believe the difference between the investigative plans is trivial.

[131] Cst. Link’s insistence during her cross-examination that there was “only a slight change” in the plan came across as a desperate effort on her part to downplay the gravity of something improper that she had done. I am, however, unable to discern whether she was trying to rationalize the carelessness with which she drafted her inaccurate affidavit or trying to cover-up deliberate misrepresentations she made to mislead the authorizing judge.

[132] Prior to that point in her cross-examination, Cst. Link had acknowledged her duty, as a warrant officer, to make full and frank disclosure. She had also acknowledged her obligation to take care not to mislead the authorizing judge. She had conceded that she would have had knowledge of the contents of the IPR before she swore her first affidavit. She had also conceded that the investigative plans described in the two documents were not the same. Her subsequent efforts, during her cross-examination, to minimize the distinction between the two plans may have been borne out of a recognition that her deliberate attempt to mislead the authorizing judge had been exposed, but it may also have been borne out of a sudden realization that she had been careless in the manner in which she prepared the affidavit. I find that the evidence is equally consistent with these two possible scenarios.

[133] I can understand why the Applicants allege bad faith on the part of Cst. Link. Their suspicion about her motives is not unreasonable, particularly given her unbelievable evidence about the ostensible change in the investigative plan. However, reasonable suspicion is not the requisite standard of proof to establish an intentional subversion of the authorization process by the police. The Applicants have the onus of demonstrating on a balance of probabilities that Cst. Link deliberately misled the authorizing judge. On the totality of the evidence, I find that they have not satisfied this onus.

[134] Cst. Link was aware of her duty to make full and frank disclosure when she drafted the affidavit. She complied with that duty, to some extent, when she made comments in her affidavit that demonstrated transparency about her lack of knowledge of certain material facts. The totality of the evidence in the record is consistent with her making a good faith effort to comply with her duty, despite being careless (one might even say reckless) in her drafting.

[135] The resulting misrepresentations in the affidavit are nevertheless inexcusable, given her training, experience and role as warrant officer. However, a finding of bad faith has not been established by the Applicants on a balance of probabilities because Cst. Link’s testimony is equally consistent with negligence and deliberate deceit.

[136] Given my conclusion that abuse of process on the part of the affiant has not been demonstrated to the requisite standard of proof, I am unable to grant the Applicant’s request to set aside the authorization in order to protect the integrity of the prior authorization process. However, I must still consider whether the authorization could have issued absent the misleading information in the affidavit.

Could the Authorization Have Issued Based on an Amplified Record?

[137] Although the evidence does not rise to proof on a balance of probabilities that the police engaged in a systematic effort to mislead the authorizing judge, this does not change the fact that Cst. Link’s affidavit was misleading by virtue of both the language she used and material omissions. These were not minor errors. The two steps in the IPR investigative plan were effectively inverted in her affidavit, thereby furnishing an evidentiary foundation for reasonable and probable grounds when none existed. Cst. Link’s affidavit gave the impression that the first of three successive stimulation tactics (the CBSA email) would immediately be deployed as soon as the wires and probes were installed, when in fact the plan was to postpone the implementation of any stimulation tactics and “wait and see” what communications were intercepted.

[138] In conducting a review of the authorization that issued pursuant to this misleading affidavit, I must amplify the record that was before the authorizing judge in order to remove the misleading information and correct the material omissions. It is on the basis of an “amplified” accurate record that I must determine whether there was some evidence that might reasonably be believed, on the basis of which the authorization could have issued.

[139] A corrected affidavit would make it clear that investigative discretion would be exercised by the police in respect of the deployment of all the stimulating tactics, not just the interviews and covert surveillance. A corrected affidavit would not describe the suspicious vehicle bulletin email as the “first step” in the next phase of the investigation. Rather, it would clearly articulate that the CBSA email bulletin was just another discretionary step that may or may not eventually be executed, depending on the results of the interceptions. In short, a corrected affidavit would clearly articulate the investigators’ intention to “wait and see” what happened after the wires and probes were installed before deciding whether to implement any of the stimulation tactics.

[140] Moreover, an accurate affidavit would frankly and explicitly disclose that the investigators had no grounds to believe that the interception of Mr. Ruddy’s private communications in September 2016 would afford evidence of his alleged offences in January 2016 absent the deployment of any stimulation tactics.

[141] In my view, an authorizing judge could not have found, on the basis of such an amplified record, that the affidavit demonstrated the requisite reasonable and probable grounds. The authorization could not have issued.

BREACH OF S. 8 RIGHTS

[142] I therefore conclude that the interception of the Applicants’ private communications pursuant to the unlawful authorization violated their constitutional rights under s. 8 of the Charter. Pursuant to the Crown’s concession and the doctrine of excision, I find that the second and subsequent authorizations are also deficient, such that all the communications intercepted during the course of the entire investigation were obtained in violation of the accused’s s. 8 rights. This ruling applies to all three co-accused.

EXCLUSION OF EVIDENCE UNDER S. 24(2)

[143] All three co-accused have applied for exclusion of the unconstitutionally obtained evidence pursuant to s. 24(2) of the Charter. Subsection 24(2) requires the evidence to be excluded “if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”

[144] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, the Supreme Court of Canada set out the following three-factor test for determining whether evidence obtained as a result of a Charter breach should be excluded pursuant to s. 24(2):

When faced with an application for exclusion of evidence under s. 24(2), 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 (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

Seriousness of the Charter Infringing Conduct

[145] Cst. Link’s affidavit in this case was misleading but I am not persuaded that it was deliberately so. The evidence does not establish, on a balance of probabilities, that the misrepresentation of the investigative plan was due to anything more than carelessness. The affiant’s misconduct in that regard is not as grievous as an intentional effort to subvert the authorization process.

[146] The Crown argues that, in the absence of deliberate misconduct, this factor should be given little weight in the balancing exercise required by Grant. The Crown submits that the police investigators sought and obtained the necessary judicial authorizations for the electronic surveillance that they conducted. They intercepted the accused’s communications pursuant to presumptively valid authorizations and to that extent, their conduct cannot be impugned: R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, at paras. 24-27; R. v. Boutros, 2018 ONCA 375, 361 C.C.C. (3d) 240, at para. 38.

[147] I agree those are mitigating circumstances in assessing the seriousness of the Charter-infringing conduct in this case, but there are other aggravating circumstances. Ultimately, my task at this stage of the s. 24(2) inquiry is to ask myself whether the police actions that infringed the accused’s Charter rights involved conduct “from which the court should be concerned to dissociate itself”: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22. The Supreme Court has instructed that,

This will be the case where the departure from Charter standards was major in degree, or where the police knew (or should have known) that their conduct was not Charter-compliant. On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is much less of a concern.

[148] Cst. Link ought to have known that the affidavit she swore and submitted to the authorizing judge was misleading. She ought to have realized that it misrepresented the existence of reasonable and probable grounds when none in fact existed. Moreover, the fact that Cpl. Gray reviewed and approved the content of the affidavit before it was submitted to the authorizing judge compounds the seriousness of the RCMP investigators’ error. Cpl. Gray had personally authored the IPR, so he ought to have realized that the description of the investigative plan in Cst. Link’s affidavit did not accurately reflect what had been internally approved by the RCMP. He ought to have recognized that the affidavit was misleading and therefore ought not to have given it a supervisor’s approval.

[149] In short, the breach of the Applicants’ Charter rights was not of a merely technical nature. It was neither an excusable slip nor understandable mistake

[150] Moreover, I am deeply troubled by Cst. Link’s effort to cover up her misconduct by falsely testifying before me that there had been a change of plans that she assiduously reflected in her affidavit. She ought to have accepted responsibility for the inaccurate and careless way in which her affidavit was drafted. While not part of the Charter breach itself, her dishonest testimony is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis, given the need for a court to dissociate itself from such behaviour: Harrison, at para. 26. As the Supreme Court of Canada remarked at para. 26 in Harrison (quoting Cronk, J.A. from the court below), "the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority".

[151] The seriousness of the Charter-infringing conduct in this case was aggravated by Cst. Link’s unwillingness to own her mistakes. Her untruthful testimony brings the police conduct in this case toward the more serious end of the spectrum. This factor therefore militates in favour of excluding the evidence.

Impact of the Breach on [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)-Protected Interests

[152] Unlawful electronic surveillance necessarily has a serious deleterious effect on the Charter-protected privacy interests of the accused. Surreptitious electronic surveillance by the state is one of the most severe intrusions into the sphere of personal privacy. As La Forest J. remarked in Duarte, at para. 19, “One can scarcely imagine a state activity more dangerous to individual privacy than electronic surveillance”. La Forest J. also adopted (at para. 22) the comment by Douglas J. in United States v. White, that “electronic surveillance is the greatest leveller of human privacy ever known.”

[153] The police in this case unlawfully intercepted the accused’s private communications in their homes, in their vehicles, and on their mobile electronic devices, over an extended period of many months. There could be no greater impact on the legitimate privacy interests of the accused, short of searches that infringe upon their bodily integrity. This factor therefore weighs heavily in favour of excluding the evidence.

Society’s Interest in a Trial on the Merits

[154] With respect to the third factor in Grant, society has a strong interest in a trial on the merits of this case because reliable evidence has been obtained in respect of very serious offences. The intercepted communications relate to an alleged conspiracy to import cocaine through Canada’s largest airport with the assistance of CBSA officers. Moreover, the evidence is essential to the Crown’s case. A prosecution almost certainly will not be pursued if the evidence is excluded. Blake, at paras. 31-32; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 62-63; R. v. Reeves, 2017 ONCA 365, 350 C.C.C. (3d) 1, at para. 99, rev’d but not on this point, 2018 SCC 56, 367 C.C.C. (3d) 129. This factor weighs substantially in favour of admitting the evidence.

Balancing

[155] The Supreme Court of Canada in Harrison described the balancing exercise mandated by s. 24(2) of the Charter as “a qualitative one, not capable of mathematical precision.” It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. All the factors must be weighed in the balance.

[156] The third factor in Grant must not take on disproportionate significance simply because the charges faced by the accused are serious. As noted in Grant, while the public has a heightened interest in seeing a determination on the merits in cases where the evidence is reliable and the offences charged are serious, the public also has a vital interest in a justice system that is beyond reproach, particularly in cases where the penal stakes for the accused are high. As the Supreme Court stated in Harrison (adopting the comments of Cronk J.A. in the Court below),

allowing the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24(2) analysis ‘would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law 'the ends justify the means'’ … Charter protections must be construed so as to apply to everyone, even those alleged to have committed the most serious criminal offences.

[157] In this case, the need to dissociate the justice system from the inexcusable police conduct (particularly Cst. Link’s false testimony about a change in plans) outweighs the truth-seeking interests of the criminal justice system, especially in light of the deleterious impact on the accused’s privacy rights. The price paid by society for an acquittal without a trial on the merits in the circumstances of this case is high, but it is outweighed by the importance of maintaining Charter standards and safeguarding Charter rights.

[158] Per the ruling in Harrison, I must take the long-term repute of the administration of justice into consideration. In doing so, I conclude that admitting the evidence in the circumstances of this case would negatively impact society’s confidence in the justice system. The evidence must therefore be excluded.

[159] The Applications to exclude the evidence pursuant to s. 24(2) of the Charter are therefore granted.

Justice Cynthia Petersen

Court File No.: 1003/18 Date: 2020-01-03

Ontario Superior Court of Justice

Between:

Her Majesty the Queen

– and –

Brano Andrews, Roberto Leyva and Keith Hamid

RULING ON EXCLUSION OF EVIDENCE

Petersen J.

Released: January 3, 2020