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Criminal - Wiretap (2). R. v. Campbell
In R. v. Campbell (SCC, 2024) the Supreme Court of Canada dismissed a criminal appeal, this from a dismissal of an Ontario Court of Appeal, and that from a trial judge's finding that convicted the defendant "of trafficking and possession offences under the CDSA and sentenced him to a term of imprisonment".
Here the court examines whether a wiretap 'interception' was made:[94] Mr. Campbell says that the police investigative technique of engaging in a text message conversation with him by impersonating Mr. Gammie was an “interception” of Mr. Campbell’s private communications using a device, namely, Mr. Gammie’s cellphone. He argues that this Court should take a broad and functional approach to determining whether Part VI of the Criminal Code is engaged. Under this argument, the police in this case committed a criminal offence by using Mr. Gammie’s phone to continue the text message conversation with Dew.
[95] I accept that the scope of an “interception” should not be approached technically to render Part VI “irrelevant to the protection of the right to privacy in new, electronic and text-based communications technologies, which generate and store copies of private communications as part of the transmission process” (TELUS Communications, at para. 33; see also para. 34). Even so, in my view, Part VI is not engaged here because the police did not use a device employing intrusive surveillance technology. This is a prerequisite for an interception under Part VI.
[96] As Côté J. highlighted in Jones, “interception relates to actions by which a third party interjects itself into the communication process in real-time through technological means” (para. 72 (emphasis added)). Part VI requires “the use of an ‘electromagnetic, acoustic, mechanical or other device’ other than a hearing-aid (i.e., not merely the naked ear)” (Ewaschuk, at § 4:7 (emphasis deleted); see also S. C. Hutchison et al., Search and Seizure Law in Canada (loose-leaf), at §§ 4:15 and 4:17; Vauclair, Desjardins and Lachance, at para. 12.2 ([translation] “by means of a technical device”)).
[97] To illustrate, in R. v. Beairsto, 2018 ABCA 118, 68 Alta. L.R. (6th) 207, which was cited approvingly by the trial judge here (voir dire reasons, at para. 104) and has similar facts to the present case, the Alberta Court of Appeal held that unless the police use intrusive surveillance technology, police deception or trickery does not amount to an interception under Part VI. In Beairsto, the police had seized a cellphone from a suspect incident to his arrest. During the seizure, an officer noticed that the phone was not locked and saw an ongoing text message conversation that suggested drug trafficking. The officer engaged in text message conversations on the seized phone and another device, tricking the other party into sending the officer a kilogram of cocaine and leading to that party’s arrest. The Alberta Court of Appeal ruled that the police conduct was not an interception under Part VI because, absent the use of an intrusive surveillance technology, “deception does not amount to an interception” (para. 24). As the court explained:... it is important to distinguish between the disclosure of found private communications and the interception of same. Where an investigation involves a basic deception as to whom the appellant is communicating with, absent intrusive technologies amounting to an “interference” between the recipient and the sender, no interception is made out. [para. 25] [98] The need for a separate “device or apparatus” that effects the interception by surreptitious technological means can also be seen in the surrounding legislative context, such as the provision for judicial authorization, s. 186. Section 186(5.1) provides that “an authorization that permits interception by means of an electro‑magnetic, acoustic, mechanical or other device includes the authority to install, maintain or remove the device covertly”. Similarly, s. 186(5.2) adds that the judge who gave the authorization under s. 186(5.1) may later give a further authorization “for the covert removal” of the device after the expiry of the original authorization. A “device or apparatus” can only be installed, maintained, or removed if it is distinct from the medium of communication it is used to intercept.
[99] In communicating with Mr. Campbell, the police did not use an intrusive “electro-magnetic, acoustic, mechanical or other device” that could be “used or is capable of being used to intercept a private communication”. They simply responded to text messages received on Mr. Gammie’s phone, the same medium of communication or device Mr. Campbell had used to make the communication. Although this was prima facie an intrusion upon Mr. Campbell’s reasonable expectation of privacy, it did not involve the use of covert surveillance technology, as required under Part VI. . R. v. Campbell [history and summary]
In R. v. Campbell (SCC, 2024) the Supreme Court of Canada dismissed a criminal appeal, this from a dismissal of an Ontario Court of Appeal, and that from a trial judge's finding that convicted the defendant "of trafficking and possession offences under the CDSA and sentenced him to a term of imprisonment".
Here the court engages in a history and summary of wiretap search law:(a) Legal Principles
[86] Parliament enacted Part VI of the Criminal Code, “Invasion of Privacy” (ss. 183 to 196.1), as a comprehensive regime to address the interception of private communications by balancing the individual right to privacy with the collective need for law enforcement (Wakeling v. United States of America, 2014 SCC 72, [2014] 3 S.C.R. 549, at para. 26; Duarte, at p. 45; Imperial Oil v. Jacques, 2014 SCC 66, [2014] 3 S.C.R. 287, at para. 39). Part VI creates offences, establishes procedures for the authorized interception of private communications in the investigation of certain crimes, and delineates when intercepted communications may be admissible in evidence.
[87] Part VI (then Part IV.1) was enacted in 1974 at a time of widespread concern about the use of intrusive surveillance technologies, such as wiretapping and bugging, to eavesdrop on citizens (Duarte, at pp. 38-39 and 43-44; Jones, at para. 73; R. v. McQueen (1975), 1975 CanLII 1373 (AB CA), 25 C.C.C. (2d) 262 (Alta. S.C. (App. Div.)), at p. 268). When introducing the legislation, Minister of Justice Otto E. Lang stated that “the key and central portion of this bill is an attempt to increase the protection of privacy in Canada by making illegal in a general way the use of a whole series of devices, particularly mechanical and electrical devices, that can intercept conversations of people who do not want them to be intercepted” (House of Commons Debates, vol. IV, 1st Sess., 29th Parl., May 8, 1973, at p. 3538, addressing Bill C-176).
[88] Soon after Part VI was enacted, the Alberta Supreme Court, Appellate Division, in McQueen, described the legislation as “the culmination of widespread and protracted efforts to impose some measure of statutory control over indiscriminate resort to practices popularly known as wiretapping or bugging, which involves special equipment . . ., the use of which is unknown to the person under surveillance” (p. 268). As Côté J. noted more recently in this Court’s decision in Jones, “the policy motivating Part VI was a concern with the use of intrusive surveillance technologies and their impact on citizens’ privacy” (para. 73; see also Duarte, at pp. 43-44; Lyons v. The Queen, 1984 CanLII 30 (SCC), [1984] 2 S.C.R. 633, at p. 664; R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 8; R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, at para. 26; TELUS Communications, at paras. 2 and 45). Modern electronic surveillance technologies “have the potential, if uncontrolled, to annihilate privacy” (Jones, at para. 74, quoting Wong, at p. 47; see also R. v. Hafizi, 2023 ONCA 639, 168 O.R. (3d) 435, at paras. 110-13). The purpose of Part VI is thus to impose controls on the use of intrusive surveillance technologies that threaten to impinge upon the privacy of individuals.
[89] Under Part VI, s. 184(1)(a) creates an indictable offence punishable by up to five years imprisonment if a person “knowingly intercepts a private communication” by use of “any electro-magnetic, acoustic, mechanical or other device”. Section 183 defines “electro-magnetic, acoustic, mechanical or other device”, “intercept”, and “private communication” for the purpose of Part VI as follows:electro-magnetic, acoustic, mechanical or other device means any device or apparatus that is used or is capable of being used to intercept a private communication, but does not include a hearing aid used to correct subnormal hearing of the user to not better than normal hearing;
intercept includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof;
...
private communication means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it; [90] Section 184(2) provides an exemption from criminal liability under s. 184(1) in certain circumstances, including when a party to the private communication consents to, or there is judicial authorization for, the interception (s. 184(2)(a) and (b); see E. G. Ewaschuk, Criminal Pleadings & Practice in Canada (3rd ed. (loose-leaf)), at § 4:3; M. Vauclair, T. Desjardins and P. Lachance, Traité général de preuve et de procédure pénales 2024 (31st ed. 2024), at paras. 12.2 and 12.12).
[91] Even when one participant consents to the interception, prior judicial authorization is required under s. 184.2 to use so-called “participant surveillance” as an investigative technique. Where neither participant to a private communication consents to the interception, ss. 185 and 186 set out requirements for an application for judicial authorization for so-called “third-party electronic surveillance” under Part VI (see Vauclair, Desjardins and Lachance, at para. 12.54; R. v. Bordage (2000), 2000 CanLII 6273 (QC CA), 146 C.C.C. (3d) 549 (Que. C.A.); R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at paras. 39‑58).
[92] As this Court has noted, “[c]ompared with other search and seizure and warrant provisions in the [Criminal] Code, the provisions in Part VI contain more stringent requirements to safeguard privacy interests” (TELUS Communications, at para. 27, per Abella J.). For example, s. 186(1)(b) requires 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”. The police must show that there was “no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 29 (emphasis deleted), quoted in TELUS Communications, at para. 28).
[93] Under s. 184.4, the “emergency wiretap provision”, a police officer may intercept a private communication without prior judicial authorization if: (a) the officer believes on reasonable grounds that the interception is immediately necessary to prevent an unlawful act that would cause serious harm to any person or property; (b) judicial authorization could not be obtained with reasonable diligence; and (c) either the person who sent the communication or the person intended to receive it would commit the unlawful act or be harmed by it (see Tse, at paras. 1-2). . R. v. Maric
In R. v. Maric (Ont CA, 2024) the Ontario Court of Appeal considers wiretap warrant authorizations:[132] As this court held in R. v. Hafizi, 2023 ONCA 639, 168 O.R. (3d) 435, at paras. 59, 60 and 103, leave to appeal refused, [2023] S.C.C.A. No. 500, the threshold for naming a known person in a wiretap authorization is a “modest” or “low one”. And, as the Supreme Court held in R. v. Chesson, 1988 CanLII 54 (SCC), [1988] 2 S.C.R. 148, at p. 164, the test for naming a person at the application stage and the test for naming a person in the authorization are the same: See also Hafizi, at para. 83. As the Supreme Court explained in Chesson, again at p. 164, if the existence of a person is known, and if there are reasonable grounds to believe that interception of their private communications may assist the investigation, that person must be named in both the ITO and the authorization:How is it to be decided whether a particular person is known or unknown for the purposes of Pt. [VI] of the Code? In my opinion, the answer to this question is to be found in Pt. [VI] itself. The starting point is [s. 185(1)(e)] of the Code, which sets out the two pre-conditions to be met before a person may be lawfully identified and named in an authorization and thus be a known person. The first and most obvious condition is that the existence of that person must be known to the police. Second, and equally important, however, is the additional requirement that the person satisfy the standard of being one “the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence”. If at the time the police apply for a judicial authorization a person meets both these criteria, he will be a known person and therefore, if the interceptions of his communications are to be admitted against him, he must be named in the authorization as a target for interception. If he is not named his interceptions are not receivable, since there is no authority to make them. A “known” person, then, for the purposes of Pt. IV.1 of the Code is one who satisfied the two criteria in s. 178.12(1)(e). [Emphasis added]. [133] It is important to emphasize that the police are required, by statute, to identify all those whose existence they are aware of, even if they do not know their proper or full names: R. v. Chung (2008), 2008 CanLII 12705 (ON SC), 231 C.C.C. (3d) 484 (Ont. S.C.), at para. 41; Singh v. United States of America, 2010 ONSC 4332, at para. 32; R. v. Degady, [1996] O.J. No. 2011, (Ont. Gen. Div.), at paras. 14-20, 31-34, aff’d, [2001] O.J. No. 3429 (Ont. C.A). In such cases the common practice would be to, as the affiant did here, use various known descriptors and information in order to identify the known person as best they can.
[134] Mr. Maric argues, pursuant to this court’s decision in R. v. Mahal, 2012 ONCA 673, 113 O.R. (3d) 209, at paras. 70-71, leave to appeal refused, [2012] S.C.C.A. No. 496, that investigators must know the identity of the person in order for them to be named as a “known” person. While investigators must identify “known” persons, this does not mean a person cannot be identified without a full or legal name. Rather, identity can be established on the basis of other factors or combination of factors, such as a nickname, physical description, or other indicators: See Singh, at para. 32; Chung, at para. 41; Degady, at para. 37. And, just because the affiant here did not know as much about “Marco” as he did about others whose private communications may be intercepted does not mean “Marco” was not “known”. Otherwise, the police would never be able to target for interception a person whose name they did not know, frustrating law enforcement’s ability to use this investigative tool: Degady, at paras. 35-37.
[135] We see no error in the application judge’s conclusion that the issuing justice could have issued the initial authorization naming, as a known person, “a male known as ‘Marco’ described as Serbian” from London, Ontario. “Marco’s” existence was known, and he met the “may assist” threshold, which meant the affiant had no choice but to name him in the authorization: Hafizi, at para. 37.
[136] What Mr. Maric is effectively asking us to do is reformulate the applicable test by reading into the Criminal Code’s provisions a requirement that core biographical information be known and included in the ITO before someone can be identified in an authorization. There is no need or basis on which to do this.
[137] The question for us is whether there was some reliable information upon which the issuing justice could have concluded that “Marco” existed: Chesson, at pp. 365-66. And, as the application judge found, after considering the Debot factors, the information concerning “Marco” was compelling, credible and corroborated.
[138] Mr. Maric argues further that objectively, the police did not have reasonable grounds to believe that he was “Marco”, and therefore could not have used the Resort To Clause in para. 5(m) of the Initial Wiretap. To start, the application judge found as a fact that CHS #1 identified Mr. Maric by photograph. There is no reason to interfere with this finding of fact, which is due a high degree of deference: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 262, at para. 10.
[139] Mr. Maric is wrong to suggest that the test for identification is correctness. This, in our view, is an impossibly high standard. The appropriate standard is reasonable grounds to believe, which the application judge found was met: Consider Hafizi, at paras. 121-23. Given CHS #1’s information concerning “Marco”, the fact “Marco” was a large scale purchaser of drugs from Kevin Er, and CHS #1’s post-authorization identification of Mr. Maric via photograph, the police were entitled to rely on the Resort To Clause. That is to say, the police had reasonable grounds to believe that “Marco” was Marko Maric. . R. v. Tiessen
In R. v. Tiessen (Ont CA, 2023) the Court of Appeal considered law of wiretap warrants:[7] The first three sets of judicial orders were issued under s. 492.2(1)(2) of the Criminal Code. Under those provisions, the ITO must show “reasonable grounds to suspect” that an offence has been committed and “reasonable grounds to suspect” that information that would assist in the investigation of the offence can be obtained through the order. That standard is obviously lower than the “reasonable grounds to believe” standard required for “wiretap” orders and search warrants: see R. v. Chehil, 2013 SCC 49, at paras. 23-26.
[8] The ITOs relied on to obtain the first three sets of orders contained information sourced to various confidential informants. Some of that information was redacted from the ITOs to protect the identity of the confidential informants. The motion judge (who was not the trial judge) limited his consideration of the adequacy of the ITO to the redacted ITO as amplified by the limited cross-examination of the affiant on the motion. On his assessment, the redacted version provided a basis upon which the orders could have been made: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421.
[9] Bearing in mind the statutory standard, the motion judge carefully reviewed the contents of the ITOs. He focused on the information provided by the various confidential informants and the arguments advanced by the appellant. The motion judge was critical of some aspects of the ITO relating to the information relevant to the credibility of the confidential informants. He was, however, satisfied that there was significant independent confirmation of material portions of the information provided by the confidential informants. Ultimately, the motion judge was satisfied the information provided a basis upon which the issuing judge could reasonably have concluded the statutory prerequisites in s. 492.2(1)(2) were made out.
[10] This court will defer to the motion judge’s assessment of the adequacy of the ITO, absent legal error or a material misapprehension of evidence. The bulk of the appellant’s submissions reargue factual issues arising out of parts of the ITO. Those arguments go no further than to demonstrate that another judge may have taken a somewhat different view of the probative value of parts of the ITO. That is not, however, a basis upon which this court could interfere with the motion judge’s ruling: see R. v. Morelli, 2010 SCC 8, at para. 131; R. v. Pires; R. v. Lising, 2005 SCC 66, at para. 30.
[11] The motion judge did not err in concluding that the orders made in September 2014, November 2014, and January 2015 were properly made under s. 492.2(1)(2). Evidence gathered under the authority of those orders was properly considered in the subsequent applications for “wiretap” orders, production orders, and search warrants.
[12] The appellant’s primary challenge to the “wiretap” order rested on the claim that the earlier orders were invalid and that any information obtained under those orders must be excised from the ITO used to obtain the “wiretap”. We have rejected that argument.
[13] The appellant also submits that even if the evidence gathered pursuant to the earlier investigative orders is not excised from the ITO, the ITO still does not provide the “reasonable grounds” required under s. 186(1) of the Criminal Code as interpreted in R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30. The same argument was made before the motion judge. He acknowledged that some of the information was somewhat dated. He was satisfied, however, that the ITO, considered as a whole, provided a coherent narrative establishing the requisite reasonable grounds. We see no error in his assessment.
[14] Finally, the appellant submits that the ITO relied on to obtain the “wiretap” did not satisfy the “investigative necessity” requirement in s. 186(1) of the Criminal Code. The motion judge considered this argument in great detail, noting not only the many investigative steps taken, but also the references in the ITO to other investigative techniques that were considered and rejected for various reasons. The motion judge concluded:In a very detailed investigative necessity section, spanning 12 pages, page 86 to page 97, the affiant particularized the investigative techniques used and those not used, and the limitations of each. The police were dealing with a sophisticated international operation characterized by the affiant as ‘a complex drug importation scheme involving a multi-layered hierarchy’. The investigation aimed to dismantle this organization which meant it sought to acquire court evidence of who did what, when and how. Intercept authorizations can assist in such an investigation. The investigative team did not first rush to an intercept order but rather conducted an extensive and thorough probe spanning many months and three separate court orders. [15] Our review of the record confirms the motion judge’s description of the relevant part of the ITO.
[16] The conviction appeal is dismissed.
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