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Criminal - Wiretap
MORE CASES
Part 2
. R. v. Hafizi
In R. v. Hafizi (Ont CA, 2023) the Court of Appeal summarizes doctrine on wiretap search and seizure law, particularly the 'rigorous safeguards' that presently exist:(ii) The third-party wiretap scheme continues to strike the appropriate balance
[109] To determine whether an appropriate constitutional balance has been struck for purposes of s. 8 of the Charter, one cannot consider only one aspect of the statutory scheme. Rather, the proper approach is to consider the provisions and safeguards in their full context: Araujo, at para. 26; Finlay, at p. 653; see also Wakeling v. United States of America, 2014 SCC 72, [2014] 3 S.C.R. 549, at para. 67. Two important aspects of that context are the rigorous statutory safeguards unique to the third-party wiretap scheme and the distinct, prospective nature of third-party wiretap authorizations themselves. It is also important to understand, with the benefit of a practical lens, why the standard for naming a person, place or device has evolved as it has.
Rigorous safeguards
[110] For many decades now there has been a concern about the use of intrusive surveillance technologies and their impact on citizens’ privacy: R. v. Jones, 2017 SCC 60, [2017] 2 S.C.R. 696, at para. 73, citing Duarte, at pp. 43-44. There is an understandable fear that if law enforcement is equipped with sophisticated, modern surveillance technologies and the use of those technologies is left uncontrolled, there exists a real potential to “annihilate privacy”: Jones, at para. 74, quoting R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, at p. 47.
[111] In the course of acknowledging these concerns, the courts have repeatedly recognized the strength of Part VI of the Criminal Code when it comes to protecting privacy. The fact is that Part VI does not leave things “uncontrolled.” To the contrary, as recognized in Jones, there exist “heightened safeguards” in Part VI, all of which are imposed to address the “dangers created by prospective authorizations”. Those safeguards lead to what has been described as an application process for third-party wiretap authorizations that is “the most exacting pre-trial investigative proceeding known to our criminal law’”: Jones, at para. 74. citing S.C. Hutchinson et al., Search and Seizure Law in Canada (loose-leaf), vol. 1, at p. 4-37. See also: R. v. Telus Communications, 2013 SCC 16, [2013] 2 S.C.R. 3, at paras. 71-73.
[112] Some of the safeguards have already been mentioned in these reasons. However, it is worth reviewing the broad array of safeguards to ensure an accurate picture of the context within which to consider the constitutional complaint in this case is brought. These safeguards include:1) Who may issue an authorization: A third-party wiretap authorization can only be granted by a Superior Court judge or a s. 552 judge, which stands in direct contrast to most other search-related provisions in the Criminal Code (s. 185(1)). As explained in Araujo, at para. 29, “the authorizing judge stands as the guardian of the law and of the constitutional principles protecting privacy interests”.
2) Who may bring an application for authorization: Unlike other search provisions, applications may only be brought by specifically designated agents, typically Crown counsel, who must be designated in writing by either their respective Attorney or Deputy Attorney General (generally those matters prosecuted by the province) or the Minister or Deputy Minister of Public Safety and Emergency Preparedness (generally those matters prosecuted by the federal Crown) (s. 185(1)(a) and (b)).
3) Stringent threshold for granting an authorization: As discussed, before an authorization is granted, the application judge must be satisfied that it is in the best interests of the administration of justice and that, subject to few exceptions, there must be investigative necessity (ss. 186(1)(a) and (b), (1.1)).
4) Authorizations limited to specified offences: Unlike other search provisions, authorizations are limited to the investigation of “offences” specifically enumerated under s. 183, which are generally considered to be the most serious offences in the Criminal Code and a few other Acts (ss. 183, 186(4)(a)).
5) Disclosure of prior applications: Unlike other search provisions, any prior application must be disclosed in the affidavit in support of the authorization (s. 185(1)(f)).
6) Imposition of terms and conditions: Unlike other search provisions, the application judge considering the application has the express statutory power to limit the sphere of the authorization, including its extent and the manner of its execution, through terms and conditions the judge considers advisable in the public interest (s. 186(4)(d)). As explained in Araujo, at para. 29, the crafting of appropriate terms and conditions is an important part of the application judge’s role:The judge should not view himself or herself as a mere rubber stamp, but should take a close look at the material submitted by the applicant. He or she should not be reluctant to ask questions from the applicant, to discuss or to require more information or to narrow down the authorization requested if it seems too wide or too vague. The authorizing judge should grant the authorization only as far as need is demonstrated by the material submitted by the applicant. While imposing terms and conditions is not statutorily mandated, the failure to impose appropriate terms and conditions may result in a finding of a s. 8 Charter breach: see e.g., Thompson, at p. 1145.
7) Protection of privileged information: Unlike other search provisions, solicitor-client communications are expressly protected in different ways and all information that would have been protected by privilege, but for an interception, remains privileged and inadmissible as evidence without the consent of the person who enjoys the privilege (ss. 186(2), 189(6)).
8) Notice of intention to adduce intercepted communication into evidence: Reasonable notice must be provided before an intercepted private communication can be admitted into evidence at trial (s. 189(5)(a)).
9) Offence to knowingly intercept: The knowing interception of a private communication in certain delineated ways constitutes an indictable offence unless done in accordance with a saving provision, which includes interceptions done in accordance with an authorization (s. 184(1) and (2)).
10) Offence to disclose intercepted communications: It is an offence to disclose a private communication intercepted under an authorization except in accordance with certain statutory exceptions (ss. 193 (1) – (3), 193.1 (1)-(2)).
11) Public reporting: The Minister of Public Safety and Emergency Preparedness “shall”, as soon as possible at the end of each year, publish a report that references certain information related to the use of electronic surveillance, including the number of third-party authorizations, as well as certain information about the content of those authorizations (s. 195(1)-(5)).
12) Notice to those who have been intercepted: Written notice must be provided to those who have been the “object” of a third-party wiretap authorization (s. 196(1)-(5) and s. 196.1(1)). [113] As this list of safeguards reveals, the statutory scheme governing third-party wiretap authorizations offers the most robust set of protections for any search-related scheme in the Criminal Code.
[114] An authorization cannot even issue until the judge is satisfied that the investigation into a serious criminal offence has for all intents and purposes stalled and that there exist reasonable grounds to believe that the authorization as a whole will assist in the investigation of that offence. Only then does the scalpel come out to craft the contents of the authorization.
[115] Adding to the strength of privacy protections is the fact that: applications have been taken out of the hands of police officers and placed into the hands of specially designated lawyers; applications have been taken out of the hands of all but superior court judges; intercepted communications are automatically shrouded in protection from disclosure except where strict statutory provisions are met; privilege cannot be pierced by an interception; and much more. Taken together, these protections reflect an exquisite balance that defines the concept of reasonableness under s. 8 of the Charter: a balance between protecting the very legitimate interest in protecting privacy, with the also very legitimate interest in protecting the safety and security of the community through the suppression of crime: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 17; Hunter, at pp. 159-60; and R. v. Edwards, [1996] 2 S.C.R. 128, at para. 30.[11]
The unique nature of third-party wiretap authorizations
[116] Another important contextual factor informing why Mahal (and the cases from which it evolves) makes sense is the unique nature of third-party wiretap authorizations.
[117] The fact is that there are “substantial differences” between third-party wiretap authorizations and search warrants: Finlay, at p. 648. For the most part, search warrants are single-entry authorizations that permit a location to be searched for a particular, pre-defined thing that is already in existence. The value of that pre-existing thing to the investigation is easy to articulate because it already exists or at least is reasonably believed to exist.
[118] In contrast, third-party wiretap authorizations are entirely prospective in nature, anticipating conversations and communications that have not yet occurred, and so their content remains to be seen in the future, as does the determination of the investigative value of those communications. As Martin J.A. explained in Finlay, at p. 648, quoting from C.S. Fishman, Wiretapping and Eavesdropping (1978), at pp. 6-11, this results in unknowns:The interception may occur at any time during the period specified in the authorization. It will often be the case that the listener will not be able to determine whether the intercepted conversation constitutes the evidence sought until after he has heard it in its entirety in the context of other conversations similarly overheard. [119]Therefore, wiretaps are necessarily future-looking and somewhat provisional by nature. Section 185(1)(e) is the only place where the “may assist” standard for a search provision appears in the Criminal Code because it is the only section dealing with prospective interceptions. What happens into the future will depend on many uncertain moving parts, often including the ability of the police to covertly encourage communications. Pepall J.A. captured this well in R. v. July, 2020 ONCA 492, 152 O.R. (3d) 1, when she said, at para. 64:Wiretaps are sweeping in their reach and target future communications based on an investigative theory that conversations relevant to an offence will take place. With a wiretap, the words sought for capture do not exist at the time the authorization is granted. They may never exist. The wiretap may fail to disclose anything of relevance to any offence under investigation. By their nature, the subject-matter sought — communications about an offence — is speculative[.] [Citation omitted.] [120] I agree. And it is the forward-looking, somewhat uncertain nature of what might come to be in the future that invites the “may assist” standard.
The may assist standard does not operate on suspicion
[121] It is also important to address the suggestion that has been made in some of the submissions in this case that the test for naming a known person – reasonable grounds to believe that the interception of their communications may assist the investigation – operates on a standard of suspicion. It does not. Indeed, to suggest that the test operates on a suspicion threshold is to read the words “reasonable grounds to believe” out of the test.
[122] The jurisprudence has made clear that “reasonable grounds to believe” and “reasonable grounds to suspect” are entirely different threshold tests, the former operating on the level of credibly-based probability and the latter operating on the level of reasonable possibilities: Hunter, at p. 167; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 27; R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569, at paras. 77-80; and R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at para. 75.
[123] The test for naming a known person is rooted in credibly-based probability that future communications may assist the investigation. The “may assist” component is simply a nod to the fact that the nature of the thing that may assist cannot be known at the time of the application.
[124] This is why, as Doherty J.A. described in Nugent, at para. 9, the authorizing judge must focus upon whether the affidavit provides a “sufficient link” between the named target and the offences charged or others involved in the investigation to conclude whether the interception of their communications could assist in the investigation of the offences. See also R. v. Brown, 2019 ONSC 5615, at paras. 63, 66; R. v. Brammall, 2019 ONSC 7334, at para. 75; and R. v. Montgomery, 2016 BCCA 379, 341 C.C.C. (3d) 147, at paras. 81, 91. I adopt that terminology as a nice summary of the threshold test for naming a known person.
[125] While neither ss. 185(1)(e) or 186(4)(c) contain a statutory threshold test for the naming of a “place at which private communications [of named persons] may be intercepted”, the “where” is simply determined by the strength of connection between the named person (who has already met the threshold test for a known person) and the place or device where that person’s communications may take place. Ontario suggests that the test is really the same as for naming a known person, only modified to meet the circumstances: reasonable grounds to believe that the known person’s communications may be intercepted at the place or on the device named. I agree.
The importance of third-party wiretaps as an investigative tool
[126] The final contextual factor that I would highlight in terms of why the law has developed as it has and should not be disrupted, is that third-party wiretap authorizations are an important investigative tool of essentially last resort in the midst of very serious criminal conduct. Doing as Martin J.A. did in Finlay, as the Supreme Court did in Chesson, Duarte and Garofoli, and as this court has done in Schreinert, Nugent and Mahal, all set against the backdrop of such a robust statutory scheme, has ensured the right constitutional balance.
[127] An example helps illustrate the point as to why the current standard for naming known persons, places and devices in an authorization makes practical sense, and how, conversely a “will assist” standard on an individualized basis could unduly hamper police investigations. Imagine that a child is abducted, and the family awaits a ransom call. While the police have reasonable grounds to believe a call will come through, it may come through to any one of a number of family members at any number of places or on any number of different devices. Doing as the appellant, CLA and CCLA request, and applying a “will assist” standard to each person, place and device would undermine the use of a s. 186 authorization as an investigative technique in that situation. This is precisely why, as Watt J.A. reinforced in Mahal, the reasonable grounds to believe standard applies to the investigation and authorization as a whole and not to its individual parts.
[128] I agree. . R. v. Hafizi
In R. v. Hafizi (Ont CA, 2023) the Court of Appeal considered an appeal after a second trial (which was held after an acquittal and a successful Crown appeal). In these quotes the court extensively sets out third-party wiretap warrant provisions [CCC s.185-186]:III. STATUTORY SCHEME
[23] Before turning to the issues in this case, it is helpful to start by describing the relevant statutory provisions, since understanding how the statutory scheme works is essential to understanding the analysis of the issues to come.
(1) Application for an authorization: s. 185
[24] Section 185 of the Criminal Code sets out the criteria that must be addressed in a third-party wiretap application, sometimes also referred to as an “omnibus application”. I say “third-party wiretap application” to distinguish a s. 185 application from other forms of Part VI wiretap applications, such as a one-party consent application (s. 184.2) or an emergency wiretap application (s. 188).
[25] The s. 185 application provision specifies who may bring an application, how it should be brought, who may hear it, and the contents of the affidavit that must accompany such an application, including who must be named in the affidavit:185 (1) An application for an authorization to be given under section 186 shall be made ex parte and in writing to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 and shall be signed by the Attorney General of the province in which the application is made or the Minister of Public Safety and Emergency Preparedness or an agent specially designated in writing for the purposes of this section by
(a) the Minister personally or the Deputy Minister of Public Safety and Emergency Preparedness personally, if the offence under investigation is one in respect of which proceedings, if any, may be instituted at the instance of the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or
(b) the Attorney General of a province personally or the Deputy Attorney General of a province personally, in any other case,
and shall be accompanied by an affidavit, which may be sworn on the information and belief of a peace officer or public officer deposing to the following matters:
(c) the facts relied on to justify the belief that an authorization should be given together with particulars of the offence,
(d) the type of private communication proposed to be intercepted,
(e) the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence, a general description of the nature and location of the place, if known, at which private communications are proposed to be intercepted and a general description of the manner of interception proposed to be used,
(f) the number of instances, if any, on which an application has been made under this section in relation to the offence and a person named in the affidavit pursuant to paragraph (e) and on which the application was withdrawn or no authorization was given, the date on which each application was made and the name of the judge to whom each application was made,
(g) the period for which the authorization is requested, and
(h) whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or that 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. [Emphasis added.] [26] Notably, s. 185(1)(e) specifies the standard for naming a person in the affidavit, namely “reasonable grounds to believe [the interception of the person’s private communications] may assist the investigation of the offence” (emphasis added).
(2) The authorization: s. 186
(a) The test for issuing an authorization
[27] Section 186(1) sets out the two overarching criteria that application judges must take into account when considering whether to issue a third-party wiretap authorization:186 (1) An authorization under this section may be given if the judge to whom the application is made is satisfied
(a) that it would be in the best interests of the administration of justice to do so; and
(b) that 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. (i) Criteria #1 – Best interests of the administration of justice/ reasonable grounds to believe (s. 186(1)(a))
[28] In Finlay, which was the first case to consider the constitutionality of the third-party wiretap provisions, Martin J.A. interpreted the “best interests of the administration of justice” in s. 186(1)(a) as including a Hunter-compliant standard. To this end, he said that the phrase “imports at least the requirement that the judge must be satisfied that there [are] reasonable ground[s] to believe that communications concerning the particular offence[2] will be obtained through the interception sought”: at p. 656 (emphasis added). As I will explain below, this standard applies to the authorization as a whole.
[29] Before moving on, it is worth making a brief note about terminology. The “best interests of the administration of justice” test in s. 186(1)(a) is sometimes described by the shortform “probable cause”. However, I prefer not to use this term. It derives from the Fourth Amendment of the United States Constitution (which protects “[t]he right of the people to be secure … against unreasonable searches and seizures … but upon probable cause …”), not from s. 8 of the Charter (which protects against “unreasonable search and seizure”). In my view, the use of the term probable cause can inject confusion into this area of the law.
[30] As a general proposition, a reasonable search and seizure will be one where the needs of law enforcement overtake individual privacy interests, which is the point at which “credibly-based probability replaces suspicion”: Hunter, at p. 167. The court in Hunter pointed to s. 443 (now s. 487) of the Criminal Code as a statutory expression of this constitutionally compliant threshold, that being reasonable grounds to believe that there is something in the location of search that will afford evidence with respect to the commission of the offence under investigation: at pp. 167-68.
[31] Undoubtedly, since Hunter, there have been numerous decisions that accept the general equivalency between the s. 8 Charter-compliant “reasonable grounds to believe” standard noted in Hunter and the American “probable cause” standard embedded in the Fourth Amendment: see e.g., Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416, at p. 447; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 128, per Deschamps J. (dissenting, but not on this point); R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 759, leave to appeal refused, [1997] S.C.C.A. No. 571; R. v. Ebanks, [2007] O.J. No. 2412, at para. 15, rev’d but not on this point, 2009 ONCA 851, 97 O.R. (3d) 721, leave to appeal refused, [2010] S.C.C.A. No. 84; R. v. Ha, 2018 ABCA 233, 363 C.C.C. (3d) 523, at para. 59; and R. v. Law, 2002 BCCA 594, 171 C.C.C. (3d) 219, at para. 7. Even so, I still prefer to avoid the use of the term “probable cause” in the Canadian s. 8 context because the term “probable” is redundant when it comes to what “reasonable grounds to believe” means under s. 8 of the Charter. This is because reasonable grounds to believe imports the concept of credibly-based probability. This is precisely why the Supreme Court noted as early as Baron, that the terms “reasonable” and “reasonable and probable” mean exactly the same thing: Baron, at p. 447.
[32] As an indication that the word “probable” adds nothing to a s. 8 inquiry, one need look no further than the post-Hunter revisions to the Criminal Code that largely removed all reference to the word “probable” within what used to be common statutory parlance involving “reasonable and probable grounds to believe.”[3] In fact, one of the very statutory provisions we are looking at in this case, s. 185(1)(e) itself, underwent post-Hunter revision with the removal of the word probable, changing the phrase from “the interception of whose private communications there are reasonable and probable grounds to believe may assist the investigation of the offence” in then s. 178.12(1)(e) to “the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence” in s. 185(1)(e) (emphasis added).
[33] Therefore, four decades into our own Charter jurisprudence, and long past the removal of “probable” from our search provisions, I elect to use a Canadian-centric shortform – “reasonable grounds to believe” for the test under s. 186(1)(a).
(ii) Criteria #2 – Investigative necessity (s. 186(1)(b))
[34] The “investigative necessity” requirement under s. 186(1)(b) is met where the application judge is satisfied that there are “practically speaking, no other reasonable alternative method[s] of investigation, in the circumstances of the particular criminal inquiry”: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 29, 43 (emphasis in original).[4]
[35] It is a well-accepted principle of law that the investigative necessity component of the s. 186(1) test be considered from the perspective of the investigation as a whole, rather than in relation to each individual, place or device named in the authorization: Araujo, at para. 29; R. v. Tahirkheli (1998), 1998 CanLII 6243 (ON CA), 130 C.C.C. (3d) 19 (Ont. C.A.), at para. 4; R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148, at para. 120, leave to appeal refused, [2016] S.C.C.A. No. 184; R. v. Pham, 2002 BCCA 247, 165 C.C.C. (3d) 97, at paras. 93-94; and R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, at paras. 100, 119. As will be seen later in these reasons, the global approach to investigative necessity informed the Mahal decision.
(b) Contents of the authorization: s. 186(4)
[36] For purposes of this appeal, it is important to also take note of s. 186(4), which dictates the minimum requirements for what an authorization “shall” include. In particular, s. 186(4)(c) requires the judge to specify the identity of persons, “if known”, whose private communications are to be intercepted, as well as, to the extent possible, the description of “place[s]” where interceptions may take place:(4) An authorization shall
(a) state the offence in respect of which private communications may be intercepted;
(b) state the type of private communication that may be intercepted;
(c) state the identity of the persons, if known, whose private communications are to be intercepted, generally describe the place at which private communications may be intercepted, if a general description of that place can be given, and generally describe the manner of interception that may be used;
(d) contain such terms and conditions as the judge considers advisable in the public interest; and
(e) be valid for the period, not exceeding sixty days, set out therein. [Emphasis added.] [37] Important to this appeal is the interrelationship between s. 185(1)(e) and s. 186(4)(c) of the Criminal Code. As already noted, at the third-party wiretap application stage, s. 185(1)(e) provides a clear statutory test predicated on a “may assist” standard for when the name of a person – “if known” – must be provided in the affidavit in support of the authorization. In contrast, when determining who to name in an authorization, s. 186(4)(c) is entirely silent on any threshold test. As for naming “places” where private communications may be intercepted, neither ss. 185(1)(e) nor 186(4)(c) provide for a statutory test.
(c) Practical approach to authorizations: standard forms
[38] For whatever reason, Parliament did not provide standard forms for wiretap applications, affidavits and authorizations.[5] Accordingly, in the wiretap context, standard forms have developed through best practices over time and are widely used throughout Canada, including in this case. A consolidation of these forms is found in the seminal wiretap text, Robert W. Hubbard, Mabel Lai & Daniel Sheppard, Wiretapping and Other Electronic Surveillance: Law and Procedure (Toronto: Thomson Reuters, 2022) (loose-leaf) at Appendix 4-12.
[39] Paragraph 3 of the standard third-party wiretap authorization form sets out the “known persons” whose communications may be intercepted. As circumstances require, paragraph 3 will often be subdivided into up to three groups of persons: (1) “Principal Known Persons” found at 3A; (2) “Other Known Persons” found at 3B; and (3) “Unknown Persons” found at 3C.
[40] Generally speaking, principal known persons are those who are the true targets of the wiretap investigation. Other known persons are those who meet the threshold test for naming a person in a wiretap authorization, but who are more peripheral to the wiretap investigation than the principal known persons. And unknown persons are those who are unknown at the time that the authorization issues, but who will almost invariably be captured communicating at places and over devices where interceptions will take place.
[41] While there is no statutory requirement that known persons be subdivided into principal and other known persons (see Mahal, at para. 90), this subdivision can be a practical means by which to organize an authorization depending upon its breadth. Not only does it telegraph who the principal targets of the wiretap authorization are, but it allows for a cleaner interaction between clauses within the authorization, more easily facilitating efforts to minimize the risk to privacy.
[42] For instance, given that the 3A category only includes the known persons who are central to the wiretap authorization, it may be that the interception of communications at certain sensitive locations will be limited to only those individuals who fall within category 3A. The first authorization in this case provides a good example of this type of minimization. Paragraph 6(b)(i) of the first authorization says that interceptions at the appellant’s business place had to be “accompanied by live audio monitoring or visual surveillance” and that intercepting had to be “discontinued once it [was] determined that none of the people in [paragraph] 3(a) [were] a party to the communication.”
[43] As for places, paragraph 4 of the standard form third-party wiretap authorization lists all places where the interception of private communications may take place. This paragraph is often subdivided into different types of places, such as residences, vehicles, business places and the like.
[44] Although there is no reference to “devices” in ss. 185 or 186, when communications are to be intercepted while making use of devices, such as mobile devices or telecommunication services, they tend not to be listed as places in paragraph 4.[6] Rather, those devices are often identified under their own section at paragraph 5 of the standard form.
[45] Finally, paragraph 6 of the standard form authorization includes terms and conditions that may be considered “advisable” in the circumstances, pursuant to s. 186(4)(d). These terms and conditions are often referred to as “minimization clauses”. I will return to this concept later in these reasons. At paras 20-22, 47-128 the court considers (and dismisses) a discrete Charter s.8 challenge to these wiretap provisions, including consideration of intervenor submissions by the Criminal Lawyers’ Association and Canadian Civil Liberties Association focussing on non-defendant third party civil liberty concerns emanating from the earlier R v Mahal (Ont CA, 2012) case.
. R. v. Economopoulos
In R. v. Economopoulos (Ont CA, 2023) the Court of Appeal considered affidavit evidence in support of a wiretap warrant:[3] His decision is owed deference, and we agree with it. As so memorably stated by Lebel J. in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, in the context of affidavits to obtain wiretaps: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. [Citations omitted.]
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