Endorsement

Date: 2025-01-02
Court: Superior Court of Justice – Ontario

In the Matter of Applications for an Authorization to Intercept Private Communications and Related Orders and Warrants

Before: James Stribopoulos
Counsel: Jason J. Wakely, for the Applicant
Heard: In Writing and Ex Parte

Introduction

[1] I signed an Authorization to Intercept Private Communications and Related Orders and Warrants today. I have authorized much of what was requested, with some exceptions made clear on the order's face.

[2] Ordinarily, an endorsement would be unnecessary. However, I feel compelled to write to remind the Crown and the police of the essential guidance provided by the Supreme Court of Canada in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, para 46:

Looking at matters practically in order to learn from this case for the future, what kind of affidavit should the police submit in order to seek permission to use wiretapping? The legal obligation on anyone seeking an ex parte authorization is full and frank disclosure of material facts: … So long as the affidavit meets the requisite legal norm, there is no need for it to be as lengthy as À la recherche du temps perdu, as lively as the Kama Sutra, or as detailed as an automotive repair manual. All that it must do is set out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization. Ideally, an affidavit should be not only full and frank but also clear and concise. It need not include every minute detail of the police investigation over a number of months and even of years.

[Underlining in original, bolding added]

Concerns with the Application

[3] Unfortunately, this application was far from concise. The affidavit filed was 821 pages. When combined with the various appendices, the materials submitted exceeded 1,500 pages. The affiant should have made a more significant effort to summarize information gleaned by police during their investigation rather than simply reproducing so much of the raw data. For example, large sections of police surveillance reports appear to have been cut and pasted into the affidavit. As the Supreme Court emphasized in Araujo, the obligation to fully disclose material facts does not obligate the affiant to "include every minute detail of the police investigation over a number of months and even years."

[4] In the future, no affidavit, no matter how complex the police investigation, should exceed 200 pages. If it is any longer, that is a clear sign that it still requires a substantial edit before it is ready for submission.

[5] I write to warn the Crown and the police that, in the future, if an affidavit in support of an application for an authorization is inordinately lengthy (i.e. exceeds 200 pages), the court may elect not to read it and only choose to consider it after resubmission following a substantial edit.

Judicial Resources and Practice Direction

[6] Although this may seem unduly harsh, documents submitted to the court are ordinarily subject to strict page limits for good reason. The court does not have unlimited resources. Applications for authorizations arrive with little warning. Expecting the court to free up scarce judicial resources on short notice so that a judge can spend several days reading an inordinately lengthy application is unrealistic and unreasonable. Additionally, should charges ultimately be laid, and an accused person challenges the authorization or other orders, an application as lengthy as the one submitted in this case will impose an inordinate burden on any judge conducting such a review. Accordingly, the court does not intend to encourage this practice.

[7] Given the gravity of the offences under investigation and the ongoing and significant threat they pose to public safety, I elected not to return the application for further editing and resubmission on this occasion. However, that will not be the case again in the future.

Sealing Order and Disclosure

[8] This endorsement is subject to the court's sealing order. The court will place it in the sealed packet. It should be subject to disclosure if any individuals are arrested and charged at the end of this investigation. The Crown is to advise the court when the investigation is completed, at which point this endorsement shall be subject to publication.

Signed: “James Stribopoulos”
Released: January 2, 2025