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Criminal - Wiretap (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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