R v Croft, 2013 ABQB 716

Court of Queen ’ s Bench of Alberta Citation: R v Croft, 2013 ABQB 716 Date : 20131205 Docket: 121085393Q1, 121085591Q1, 121086227Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Docket 121085393Q1 Jason Clarke Croft Docket 121085591Q1 Jason Clarke Croft and Wassime Rahime Docket 121086227Q1 Jonathan Mark Rivera Aldaba, Jason Clarke Croft and Steven Daniel Whipple Accused _________________________________________________________ Ruling of the Honourable Mr. Justice B.R.

Burrows Garofoli Excision - Standing _______________________________________________________ [ 1 ] The four accused named in the three criminal proceedings referenced in the style of cause are charged, in various combinations, with a variety of mainly drug offences. I have been appointed pursuant to Criminal Code s. 551.1 as the case management judge for these proceedings and pursuant to Criminal Code s. 551.7 to adjudicate pretrial motion issues arising in all three proceedings.

[ 2 ] In my Reasons for Judgment on the defence challenge to Criminal Code s. 487.012 ( 2013 ABQB 640 ) I invited counsel to speak to any other order the conclusion I there reached might justify. The issue addressed in these reasons arises, in part, out of that invitation. [ 3 ] It also arises in anticipation of imminent defence applications challenging orders and warrants issued in the investigation which led to the charges before the court and which yielded information which was included in affidavits used in support of applications under

Part VI of the Criminal Code for wiretap authorizations. [ 4 ] The issue concerns the legal principles which govern the determination of whether information contained in ITOs or wiretap authorization affidavits ought to be excised from the ITO or affidavit in the context of a Garofoli application. [ 5 ] The Garofoli hearings will be held, at least in the wiretap context, because the accused say their Charter s. 8 rights were breached when the police intercepted their private communications pursuant to one or both of two wiretap authorizations.

The accused will seek to establish that when information not properly before the authorizing judge is excised from the affidavits filed in support of the wiretap authorizations, the remaining information will be insufficient to satisfy the criteria for granting a wiretap authorization. [ 6 ] The accused state the issue which they wish the court to address as follows: In a Garofoli application to determine the validity of a search warrant or wiretap how should the reviewing judge deal with illegally (which includes unconstitutionally) obtained information contained in the affidavit or ITO?

The accused submit that the answer to this question is, “Disregard it.” The accused position is that any information in the affidavit used in support of a prior judicial authorization order (a wiretap order or a search warrant) which was obtained through a breach of the law including a breach of anyone’s Charter rights, must be excised from the affidavit for the purposes of the review of the authorization. [ 7 ] The Crown articulated the issue to be addressed as follows: In the Garofoli review to determine the validity of a wiretap authorization, does the reviewing justice have jurisdiction to excise (disregard) information from the affidavit filed in support of the wiretap authorization on the basis the information was obtained unlawfully or unconstitutionally where the accused’s Charter rights were not breached in the course of acquiring the information?

The Crown submitted that the answer to this question is: The reviewing justice may only excise (disregard) such information from the affidavit filed in support of the wiretap authorization if the reviewing justice’s consideration of the information in the review process would: (

a) Result in an unfair trial of the accused, thereby breaching his s. 11(

d) Charter rights; or (

b) Deprive the accused of his life, liberty or security of the person in a manner that is not in accordance with the principles of fundamental justice, thereby breaching his s. 7 Charter right. Information Obtained Through the Breach of a Third Party’s Charter Rights [ 8 ] The Crown considers the issue, at least in respect of information obtained through the breach of the Charter rights of someone other than the accused, to be one of standing.

Information obtained through the breach of a third party’s Charter right would not be excised from the affidavit because no remedy is available to the accused for the breach of someone else’s Charter rights. [ 9 ] It is not questioned that the accused have standing to challenge the wiretap authorization pursuant to which their own private communications were intercepted.

If the accused succeed in their challenge, the private communications in which they participated will not be admissible against them, unless after Charter s. 24(2) analysis they are held admissible despite the breach of the accused’s Charter right. [ 10 ] The issue in this application is not as to the standing of the accused to challenge the wiretap authorization; it is, as the Crown views it, as to whether in the context of that challenge, they have standing to seek the excision of information in the affidavit which was obtained in breach of a third party’s constitutional rights, though not in violation of the accused’s own constitutional rights. [ 11 ] The accused submit that their standing to challenge the wiretap authorization is all they need.

Because they have that standing, they have the right to require the excision of unconstitutionally obtained information from the wiretap affidavit.

They submit that they do not have to establish that any of the orders or warrants they challenge effected a violation of the accused’s own Charter rights – only that they effected a violation of someone’s Charter rights. [ 12 ] In the context of the determination of whether evidence is admissible at trial (as distinct from the determination of whether evidence should be excised from the affidavit or ITO in a Garofoli application) there is no doubt that the accused could not seek the exclusion of evidence obtained through the breach of a third party’s Charter rights.

The accused would not have standing to seek its exclusion. The only route to exclusion would be through Charter s. 24 – and that route is only available where the accused’s own Charter rights have been violated. [ 13 ] The accused submit that the law is different, however, where the issue arises in the Garofoli excision context. They submit that unconstitutionally obtained information is automatically excised from the affidavit when an accused with standing to challenge the wiretap seeks the excision.

Excision does not depend on it having been the accused’s Charter right that was breached. [ 14 ] The accused referred to several authorities as providing support for this proposition. They are listed in the following paragraphs. [ 15 ] In several instances the accused have cited passages from a decision from which, they submit, it can be inferred that in the

Garofoli context, excision does not depend on it having been the accused’s Charter right that was breached – that excision flowsautomatically from the determination that the information was obtained through a breach of Charter rights, even those of a third party. [16] My reading of some of the cases cited by the accused does not permit confidence that the judge was addressing his or hermind to the question before me. The cases to which this observation relates are: R v. Spence (2011) 2011 BCCA 280 , 87 C.R. (6th) 242 (BCCA) at para. 15; R v. Liew (2012) 2012 ONSC 2990 , 289 C.C.C. (3d) 225 (OSCJ); R v.

Battista 2011 ONSC 771(decision not available online but referred to in R v. Serre 2011 ONSC 3749 at para. 36). [17] In several of the cases cited the Charter breach which led to the excision of information from the ITO or affidavit was of theaccused’s own Charter rights. General statements in these cases to the effect that information obtained in breach of Charter rights willbe excised should not be read as authority for the proposition that excision will result where information is obtained in breach of theCharter rights of a third party. These cases simply do not address the issue now before the court.

The cases to which this observationrelates are: R v. Grant (SCC), [1993] 3 S.C.R. 223 at para. 50; R v. Wiley (SCC), [1993] 3 S.C.R. 263;R v. Plant (SCC), [1993] 3 S.C.R. 281; R v. Kokesch (SCC), [1990] 3 S.C.R. 3; R v. Brown 2003BCPC 236 , [2003] B.C.J. No. 1654 (BCPC). [18] In some of the cited cases there are passages which appear to provide support for the proposition advanced by the accusedhere. But none of them contain a focussed discussion of the issue in isolation.

In some of these cases the judge refers to Grant, Wileyand Plant as authority for the proposition that information obtained through a Charter breach is to be excised, without mentioning thatthose cases (Grant, Wiley and Plant) concerned a breach of the accused’s own Charter rights. Nevertheless I accept that these casesprovide some support for the accused’s position. Having reviewed them all, I do not find them convincing. I am not bound by any ofthem. If they are authority for the proposition advanced by the accused before me, I decline to follow them. The cases to which thisobservation relates are: R v.

Brown [2000] O.J. No. 1177 (Ont S.C.J); R v. Martinez-Gonzalez [1997] O.J. No. 5960 (Ont. Court of Justice, Provincial Division); R v. Guilbride (2003) 2003 BCPC 177 , 10 C.R. (6th) 243 (BCPC); R v. Vu [2004] O.J. No. 5681(OSCJ); R v. Riley (ON SC), [2009] O.J. No. 738 (OSCJ); R v. J.J. [2010] O.J.

No. 915 (OSCJ). [19] The Crown cited three cases as authority for the proposition that information obtained through breach of a third party’sCharter rights will not be excised from the affidavit in support of a prior judicial authorization in the review of that authorization – thatthe accused must show that it was his Charter right that was breached before the information obtained will be excised: R v. Huynh(2008) 2008 ABQB 464 , 451 A.R. 201 (Alta Q.B.) at para. 48; R v. Nguyen (2008) 2008 ABQB 721 , 462 A.R. 240(Alta Q.B.); and R v.

Percival (unreported, January 7, 2013, BCPC, Duncan Registry, File No. 32135-1). I agree that these cases supportthe Crown’s position. [20] The rights and freedoms described in the Charter ss. 2, 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 are individual, personal rights. Charter s. 24 establishes that the individual whose Charter right has been infringed or denied may apply to the court for a remedy.

Itwould be entirely inconsistent with the individual and personal nature of Charter rights and freedoms and the individual and personalnature of the enforcement provision of the Charter to permit a person to seek a remedy for himself in respect of the infringement ordenial of another person’s Charter right. [21] At trial, evidence relevant to the question of the guilt or innocence of the accused will not be excluded because it was obtainedthrough the violation of the Charter rights of a person other than the accused.

I can see no justification for applying a different rule onthe review of an order giving prior judicial authorization to a search or wiretap. [22] It does not, in my view, constitute such justification that the application for the authorization is made ex parte. This feature ofthe process certainly and indisputably requires that the applicant provide full and frank disclosure of all the relevant information he has –both that which supports the application and that which would support not granting the authorization.

Arguably, full and frank disclosurewould include the fact that the information put forward was obtained in violation of the Charter rights of a third party, if that wereknown to the applicant (which is extremely unlikely since such violation would not at that point have been alleged, much lessdetermined). [23] But even in the rare case where such disclosure were possible and had been made, it would not, in my view, justify denial ofthe authorization if the other information in the affidavit justified granting it.

Specifically, that relevant information had been obtainedthrough the violation of a third party’s Charter rights would not justify the authorizing judge ignoring that relevant information. Theinformation would be appropriately before the authorizing judge since no Charter right of the intended subject of the search had beenviolated. The necessarily absent accused would have no right to seek its exclusion even if he were present.

That being so, the fact of theCharter breach would not justify excision on the review of the authorization either. [24] The accused further submitted that it was not necessary to confine the right to seek excision to information obtained in breachof the Charter rights of the accused because the fact that it was not the accused’s Charter right that had been breached would be relevantin the s. 24(2) analysis which would follow upon a determination that the authorization should be set aside. I see no merit in thissubmission.

The point of the review process is to assess whether the authorizing judge could have validly granted the authorization onthe information validly before him. Relevant information obtained without any violation of the accused’s Charter rights is validlyplaced before the authorizing judge since neither the Charter nor anything else creates a legal means of excluding it.

To exclude itbecause of a violation of the rights of someone not before the court and not seeking any remedy on the basis that these features of thesituation would be taken into account later at trial, is entirely inconsistent with the principles applicable to the review application. Illegally (Though not Unconstitutionally) Obtained Information [25] The second part of the issue before me relates to information in the affidavit which was obtained illegally but not in violationof anyone’s Charter right.

As mentioned, this part of the issue arises out of my determination in a previous application that when thepolice obtained text messages from Telus in the unique circumstances described in my previous decision (2013 ABQB 640) theyintercepted private communications,

an act which could only be authorized by an authorization granted under s. 186 of the CriminalCode. The order which the police had sought and obtained, a production order under s. 487.012 of the Criminal Code, was incapable of

giving the police the authority they required. The interception of the text messages was therefore without prior judicial authorization. [26] There has been no determination that anyone’s Charter s. 8 rights were thereby breached since none of the accused has soughtsuch a determination.

But a determination that someone’s Charter s. 8 right was thereby violated would not, on the reasoning set outabove, result in the excision of information obtained from the text messages from the wiretap affidavits unless the breach was of theaccused’s own s. 8 Charter right. [27] The question here is whether the accused can, in the Garofoli review, seek excision of the information from the interceptedtext messages on the basis that their interception was not legally authorized. [28] The fact of the illegality could provide the first step on two different routes leading to the excision of the information obtainedfrom the text messages from the wiretap affidavits. [29] First it is conceivable that the text message information would be excised on the basis that its inclusion in light of theillegality would be contrary to the accused’s Charter s. 7 or 11(

d) right to a fair trial. Second it is conceivable that the excision mightbe justified because inclusion in light of the illegality would be a common law abuse of process. [30] In the context of the first route, an accused would have standing to seek excision because he would be asserting a violation ofhis own Charter right. [31] On both routes the determination of whether inclusion of the text message information would justify exclusion would dependon the accused, in the Garofoli review, establishing that the inclusion would render the process unfair.

Considerations relevant to thatdetermination, as suggested in cases considering the admissibility of illegally obtained information, would include: - Whether anything about the illegality in the obtaining of the information rendered it unreliable or misleading. - Whether the illegality was serious – whether it constituted egregious conduct on the part of the police – whether it outweighedsociety’s interest in finding out the truth. - Whether as a result of the illegality the accused was compelled to incriminate himself. See R v. Harrer (SCC), [1995] 3 S.C.R. 562 at para. 46, R v.

Cook (1998) (SCC), 128 C.C.C. (3d) 1 at para. 72; R v. Milne (1996), (ON CA), 48 C.R. (4th) 182 (Ont. C.A.). [32] In the context of the common law relating to abuse of process, the accused’s standing, including standing for the purposes ofexcision in the Garofoli review, is established by the fact that he will be required to submit to the trial process. Anyone who is obligedto submit to trial has the right to assert that the consideration of any evidence for any purpose in the proceeding would render theproceeding unfair and to seek the exclusion or excision of the evidence for that reason.

Conclusion [33] For the reasons set out above I conclude that in the Garofoli reviews in this matter:

a) The accused cannot seek the excision from the affidavit of information obtained through the violation of the Charter rights of aperson other than the accused seeking the excision.

b) The accused has standing to seek the excision of information obtained through the violation of the accused’s own Charter rights,including his s. 8 right to be secure from unreasonable search and seizure and his s. 7 and 11(

d) rights to a fair trial.

c) The accused has standing to seek the excision of information obtained illegally, such as the text messages which I have held wereobtained without proper authorization, on the ground that inclusion of the information so obtained would render the Garofoli processunfair on the basis of the common law abuse of process principles. Heard on December 2 and 3, 2013. Dated at the City of Edmonton, Alberta this 4th day of December 2013. B.R. Burrows J.C.Q.B.A. Appearances:

Dennis Hrabcak for the Crown Simon Renouf, Q.C., Julia Renouf and Adam Badari for Steven Daniel Whipple Clayton Rice and Tara Hayes for Jonathan Mark Rivera Aldaba Gregory Lazin for Jason Clarke Croft Aleksandra Simić and Alexandra Seaman for Wassime Rahime