R. v. Ou-Yang, 2011 BCPC 54

Citation: R. v. Ou-Yang, et al. Date: 20110217 2011 BCPC 0054 File No: 146871-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JIMMY OU-YANG, JESSE TIMMERMAN, CHARLIE TRAN, RYAN SRANKO RULING ON VOIR DIRE OF THE HONOURABLE JUDGE E. C. BLAKE Counsel for the Crown: P. Eccles & T. Johnson Counsel for the Defendant Ou-Yang: M. Klein Counsel for the Defendant Timmerman: R. Morahan Counsel for the Defendant Tran: M. Gervin Counsel for the Defendant Sranko: R. Neary Place of Hearing: Victoria , B.C.

Date of Hearing: January 31 & February 1, 3, 4, 7, 8, 9, 10, 2011 Date of Judgment: February 17, 2011 INTRODUCTION [ 1 ] The accused person Ryan Sranko, together with others, faces trial on a charge of conspiring to traffic in cocaine. The Crown has advised Mr. Sranko that it will be seeking to introduce certain intercepted telephone communications as evidence against him at the trial. The Crown maintains that the communications constitute admissible evidence, having been intercepted pursuant to a valid authorization issued on June 11, 2008 in accordance with

Part VI of the Criminal Code . [ 2 ] The accused submits, however, that the evidence of the intercepted communications was obtained in a manner which infringes his right to be free from unreasonable search or seizure, as guaranteed by s. 8 of the Charter of Rights . He asks the Court to exclude the evidence pursuant to s. 24(2) of the Charter . [ 3 ] As the first order of business on Mr.

Sranko’s Charter application, I heard submissions on the issue of whether he was entitled to cross-examine the Constable Tyler Gould, with respect to the affidavit which he swore on June 10, 2008 resulting in the issuance of the authorization. Over the objections of Crown Counsel, I permitted cross-examination on the following specific issues: 1. The manner in which Constable Gould made use of surveillance information purporting to identify the accused ; and 2. The manner in which Constable Gould made use of investigative information concerning the address and telephone number of the accused.

[4] At the time of my ruling allowing the accused the opportunity to cross-examine, I indicated that I would only allow cross-examination relating to the general credibility of the affiant if it should become apparent, during the course of the examination within thespecific areas to which I have just referred, that the affiant’s responses breathed an air of reality into the submission that the authorizationshould be quashed through an exercise of the Court’s “residual discretion”.

A brief word of explanation is in order concerning this latterpart of the ruling allowing for cross-examination. [5] During the course of submissions on whether any cross-examination at all should be permitted, counsel for the accused took theposition that a Court reviewing the issuance of an authorization has a residual discretion to quash the authorization if it is satisfied thatthe affiant’s lack of candour is so subversive of the prior authorization process that invalidating the authorization is necessary to protectthe repute of the administration of justice, even if the authorizing judge actually had enough untainted information on which to base avalid authorization.

The Crown disputed that any such residual discretion exists in the court called upon to review a wiretapauthorization. [6] Given the dispute between counsel concerning the extent of the reviewing court’s authority, amply supported as usual by weightyauthority on both sides, it seemed sensible to only consider defence counsel’s broad application for cross-examination on the generalissue of credibility only if the initial, permissible questioning of the affiant suggested that the alleged residual discretion mightconceivably be triggered in this case. [7] As matters actually unfolded, defence counsel’s cross-examination focused largely on the manner in which Constable Gould usedthe identification information available to him from surveillance officers when drafting the affidavit in support of the authorization.

Atthe conclusion of his cross-examination on that issue, counsel did make application to further cross-examine the affiant. I granted thatapplication in part. The further cross-examination was intended to illustrate the affiant’s general unreliability, but counsel elected toterminate the cross-examination very shortly after it began and to rely instead on submissions to the court. [8] At the conclusion of the cross-examination and after hearing submissions from both counsel, I made an oral ruling indicating thatI considered the authorization of June 11, 2008 to have been validly issued.

I found that there had been no breach of the accused’s s.8Charter right and that accordingly the s. 24(2) issue concerning exclusion of unlawfully obtained evidence did not arise. The oral rulingwas provided in order to expedite the trial process, but I indicated that I would provide written reasons in due course. These are thewritten reasons. THE LAW [9] The general principles applicable to this case are, with one notable exception, not in dispute.

Furthermore, I think it would bepresumptuous of me to imagine that I could improve upon the articulation of principles set forth in the various recent Supreme Court ofCanada cases, or upon the helpful summaries found in cases such as R. v. Maton, 2005 BCSC 330 , [2005] BCJ No. 697 (SC),which have attempted to apply the principles. [10] Accordingly, I intend, for the most part, to restrict my comments on the general law to a consideration of the issues specificallyapplicable here, and refer only to the most directly relevant recent authorities.

I trust that counsel can accept my assurance that I haveread very carefully all of the many authorities presented to me during the course of submissions. I am indeed very grateful for the effortscounsel made to ensure that I was fully informed on the law, even if I do not now refer to all of the authorities discussed duringsubmissions. [11] It is now trite to say that the provisions in

Part VI of the Criminal Code regarding the granting of authorizations to interceptprivate communications are illustrative of the general principle that significant intrusions upon personal privacy in order to obtainevidence of criminal behaviour should, as a general rule, only occur after informed judicial authorization has been granted. Anythingless will generally be considered to be a breach of the citizen’s right to be free from unreasonable search or seizure. [12] The Supreme Court of Canada pointed out in R. v.

Duarte (1990), (SCC), 53 CCC (3d) 1 that the invasion ofprivacy represented by the interception of private communications is significant indeed and must be closely monitored. At the same timethere must be recognition that some types of serious crime are notoriously difficult to control without resort to investigative tools such aswiretaps. [13] In situations involving proposed wiretapping, the contest involved in balancing law enforcement objectives with individual rightstakes place in the context of an ex parte application to an authorizing judge.

In view of the significant competing interests at play andbearing in mind that only the applicant’s side of the story is presented to the authorizing court, a high standard of fairness is required ofthe applicant.

In Hunter v Southam Inc. (1984), (SCC), 14 CCC (3d) 97, the Supreme Court of Canada said atparagraph 32: The purpose of a requirement of prior authorization is to provide an opportunity, before the event, for the conflicting interests of the state and the individual to be assessed, so that the individual’s right to privacy will be breached only where the appropriate standard has beenmet, and the interests of the state are thus demonstrably superior.

For such an authorization process to be meaningful it is necessary forthe person authorizing the search to be able to assess the evidence as to whether that standard has been met, in an entirely neutral andimpartial manner. [14] Thus, the applicant is said to have an obligation to prevent all material facts to the authorizing judge in a full and frank manner. R. v. Araujo (2000), 2000 SCC 65 , 149 CCC (3d) 449, at paragraph 46.

Failure to meet that standard cannot be countenancedbecause it “robs the judicial officer of the ability to perform …. [his or her] …. vital function in the administration of justice.” R. v.Hosie (1996), (ON CA), 107 CCC (3d) 385 (Ont CA), at paragraph 31. [15] In making the assessment as to whether an affiant has met the expected high standard of disclosure, the courts endeavour to takeinto account the fact that the affiant’s language skills may be less than perfect. As Gibbs, JA stated in R. v. Melenchuk (1993), (BC CA), 24 BCAC 97:

It would be impractical to expect of an officer swearing an information in these circumstances the precise prose of an Oxfordgrammarian, the detailed disclosures of a confessional and the legal knowledge of a Rhodes scholar. [16] The affiant must expect, however, that the words which he or she chooses to use will be read by both the authorizing judge andby the reviewing Court in their usual and everyday manner. Courts take an extremely dim view of affiants using “cute” language having“the potential to trick the reader into thinking that the affidavit means something that it does not”. R. v.

Araujo, supra at paragraph 47. [17] Of course it is not necessary that the affiant refer to every fact that could possibly be relevant. R. v. Chambers (1983), (BC CA), 9 CCC (3d) 132 (BCCA); R. v. Araujo, supra, at paragraph 46. But at the same time the affiant must be carefulnot to make omissions which leave the authorizing judge with a distorted or incomplete picture of the true state of the affairs.

In thatrespect, it is important to note that the reviewing judge will be concerned with both deliberate and non-deliberate lack of disclosure,since the true essence of the test upon review is not ex post facto whether the authorizing judge “got it right”, but rather whether theauthorizing was fully informed so to enable the correct decision to be made. R. v. Ling 2009 BCCA 70, at paragraph 37. [18] On occasion, as in the present case, the reviewing Court will permit cross-examination of an affiant in order to better assesswhether the appropriate disclosure standard has been met.

In such circumstances, it is inevitable that further evidence will be elicitedwhich tends to “amplify” the material contained in the affidavit itself. The reviewing court may have access to such “amplification”evidence on occasion, but the court must be careful in determining how to use that evidence. In R. v. Morelli 2010 SCC 8, at paragraph42 Fish, J. for the majority, stated: [42] It is important to reiterate the limited scope of amplification evidence, a point well articulated by Justice LeBel in Araujo.

Amplification evidence is not a means for the police to adduce additional information so as to retroactively authorize a search that wasnot initially supported by reasonable and probable grounds.

The use of amplification evidence cannot in this way be used as “a means ofcircumventing a prior authorization requirement” (Araujo, at paragraph 59). [43] Rather, reviewing courts should resort to amplification evidence of the record before the issuing judge only to correct “some minor,tech-nical error in the drafting of their affidavit material” so as not to “put form above substance in situations where the police had therequisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith made” such errors(paragraph 59).

In all cases, the focus is on “the information available to the police at the time of the application” rather thaninformation that the police acquired after the original application was made (paragraph 59). [19] In essence, the function of the reviewing court is to take into account any errors and omissions in the material presented to theauthorizing judge, excise the inaccuracies from the material, and determine whether the authorizing judge could have issued theauthorization if he or she had been apprised of only the correct facts.

In Araujo, supra, at paragraph 51 the Court quotes the followingwell-known passage from its earlier decision in Garofoli (1990), (SCC), 60 CCC (3d) 161 on this point: The reviewing judge does not substitute his or her view for that of the authorizing judge.

If, based on the record which was before theauthorizing judge, as amplified on review, the reviewing judge concludes that the authorizing judge could have issued the authorization,then he or she should not interfere. [20] An interesting question, and the only seriously disputed legal issue on this application, arises in connection with the authority ofthe reviewing court to quash an authorization where it appears that the affiant has strayed markedly from the expected standards (as, forexample, by deliberately failing to disclose relevant facts or by attempting to perpetrate fraud upon the authorizing judge), but therenonetheless remains a body of evidence from which the authorizing judge could have issued the authorization. [21] The law in this province on this point is not entirely clear.

Before the Supreme Court of Canada decision in R. v. Garofoli, suprathere was authority from the British Columbia Court of Appeal suggesting that the reviewing court did retain a residual discretion toquash a search warrant or authorization in such circumstances, on the basis that on occasion it may be an affront to the repute of theadministration of justice to do otherwise. R. v.

Sismey (1990), (BC CA), 55 CCC (3d) 281, at 285 and R. v.Donaldson (1990), (BC CA), 58 CCC (3d) 294. [22] In Garofoli, supra, however, the Supreme Court of Canada said this with respect to the scope of the authority vested in thereviewing Court: In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being aprerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [23] In R. v.

Silvestrone (1991), (BC CA), 66 CCC (3d) 125 (BCCA), the Court of Appeal continued to rely uponSismey and Donaldson despite the intervening authority of the Garofoli decision. It may be notable, however, that the Court inSilvestrone did not refer to Garofoli. [24] In 1994, the Supreme Court of Canada decided R. v.Bisson, (SCC), [1994] 3 SCR 1097, at 1098, a case in whichthe affiant’s non-disclosure was particularly glaring in nature.

The Court took the opportunity to expressly endorse the comments madefour years earlier in Garofoli concerning the apparently limited impact of material non-disclosure, or even fraud, on the part of an affiantseeking wiretap authorization. [25] In R. v. Dellapenna, (BC CA), [1995] BCJ 1526 (CA), however, the Court of Appeal specifically referred toboth Garofoli and Bisson before expressing the view that Sismey and Donaldson continued to reflect the law in this province. [26] In 1997, Esson, JA., writing for the Court in R. v.

Monroe, (BC CA), [1997] BCJ No. 1002(CA), atparagraphs 7 through 13, expressed some uncertainty about this “troubled” area of the law, noting that in 1993, three years after decidingGarofoli but before deciding Bisson the Supreme Court of Canada itself seemed to express approval for the Sismey and Donaldson lineof authority, when deciding R. v. Grant, [1993] SCR 223.

[27] In Monroe, Esson, JA went on to hold, at paragraph 13: [A] warrant is not necessarily vitiated by the justice having been deliberately misled.

Rather, the trial judge must examine theinformation before the justice, as amplified on review, to determine whether there was sufficient reliable information, independent of theimpugned evidence, to support the warrant being issued. (my emphasis) [28] In 2000, LeBel, J., writing for a unanimous panel in the Supreme Court of Canada in Araujo, supra, at page 473, quoted withapparent approval the following comment made by Cromwell, JA, then of the Nova Scotia Court of Appeal in R. v.

Morris (1998), 1998NSCA 229 , 134 CCC (3d) 539, at 553: These cases stress that errors, even fraudulent errors, do not auto-matically invalidate the warrant. This does not mean that errors, particularly deliberate ones, are irrelevant in the review process. While not leading to automatic vitiationof the warrant, there remains the need to protect the prior authorization process.

The cases just referred to do not foreclose a reviewingjudge, in appropriate circumstances, from concluding on the totality of the circumstances that the conduct of the police in seeking priorauthorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventivefunction it serves. (my emphasis) [29] The observation made in Morris and referred to in Araujo seems to me to be entirely consistent with the most recentpronouncement of the Supreme Court of Canada in R. v. Morelli, supra.

In that case, at paragraph 102, Fish,J., writing for the majority,stated: The repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct.

Police officers seekingwarrants are bound to act with diligence and integrity, taking care to discharge the special duties of candour and full disclosure thatattach in ex parte proceedings. (my emphasis) [30] The recent decision of the British Columbia Court of Appeal in R. v.Ling, supra appears to confirm the existence of the residualdiscretion to quash a warrant or authorization where the affiant has significantly breached his or her duty of full and frank disclosure tothe authorizing judge. To the same effect in the Supreme Court of British Columbia, see the recent decision in R. v.

Ciachurski, [2009]BCJ No. 2139, at paragraphs 43 and 44. [31] I do acknowledge the comments of Crown Counsel before me regarding the particular circumstances existing in Dellapenna,Ling and Ciachurski and the manner in which the quashing of the warrants in each of those cases can be explained without reference toany residual discretion on the part of the reviewing court.

The point remains, however, that in two of those cases (Ling and Ciachurski)the warrants were quashed despite the existence of a residue of untainted facts in the affidavit material, and in the third case (Dellapenna)the Court of Appeal specifically approved of the earlier authorities recognizing a residual discretion to exclude. [32] I bear in mind the Supreme Court of Canada’s clear and serious warnings in Duarte concerning the highly intrusive nature ofsearches involving the interception of private communications.

Against that background, I am unable to accept that any court calledupon to review the granting of a wiretap authorization should consider itself to be so devoid of authority as to be unable to distance itselffrom even the grossest misdeeds of those who have provided faulty affidavits to the authorizing judge. To accept that reviewing courtsare that meek and toothless would, in my view, greatly trivialize the significance of wiretap searches generally, and would undermine toan unacceptable degree the judicial role in maintaining the integrity and balance of the prior authorization scheme.

The repute of theadministration of justice would be greatly compromised as a result. [33] Notwithstanding Crown Counsel’s forceful argument to the contrary, therefore, I remain convinced that a reviewing court, inappropriate cases, retains some ability to express its disapproval for seriously divergent behaviour on the part of affiants seeking ex parteauthorizations, in a much broader way than is possible if its authority were to be limited to simply assessing the effect of the residue ofevidence remaining after the offensive material has been excised.

It is not a matter of punishing the offending affiant; it is a matter ofmaintaining the proper balance between the need to protect privacy and the need to allow reasonable latitude for criminal investigation.

ANALYSIS OF THE EVIDENCE ON THE VOIR DIRE [34] As I have already said, the cross-examination on the voir dire focused to a great extent on the way in which the affiant,Constable Gould, made use of surveillance information available to him when compiling his affidavit. [35] At the outset, I should say that I accept defence counsel’s submission that the affiant’s treatment of the surveillance material inhis affidavit is of heightened significance with respect to this particular accused, in view of the fact that the incriminating informationavailable to the police through informants was so limited.

Only one of the seven informants referred to in Constable Gould’s affidavitprovided any information about Mr. Sranko specifically, even though all of the other informants claim to have been operating close tothe alleged conspirators. [36] In his affidavit, Constable Gould refers to the fact that a surveillance team kept an expanding group of alleged drug traffickersunder observation for an extended period of time commencing in July 2007. He was designated to be the affiant as early as March 2008,even though the application was not made to the authorizing judge until mid-June.

It appears that he ceased to be an active member ofthe surveillance team more or less simultaneously with his designation as the affiant. Thereafter, his task involved collecting the daily

surveillance reports and collating those reports with other sources of information in order to “build” the affidavit. [ 37 ] In his affidavit, Constable Gould provides some general information about the manner in which he handled the surveillance data which came to him over the few months before the affidavit was completed, and he expanded upon that aspect of the matter during his cross-examination. [ 38 ] It is clear that the surveillance teams designated a specific member each day (referred to as “the scribe”) to prepare a compendious report (“the surveillance report”), containing the essential observations gleaned from the individual officers’ observations, as set forth in their individual notebooks.

In the initial stages of the preparation of his affidavit, Constable Gould relied entirely upon the daily surveillance reports, rather than the individual officers’ notes, to obtain a

summary of what the team had observed. [ 39 ] Thus, the officer provides the following general statement at paragraph 34 of his affidavit: 34. Since July 2007 members of my

section have conducted surveillance of DILLALA, STEVENSON, SRANKO, PEARSON, CAMPLAIR and their associates. I have read the surveillance reports pertaining to those surveillances, which are described in this my Affidavit and I believe them to be an accurate account of the observations. [ 40 ] I pause to note right away that in the above paragraph, interpreted in a common-sense fashion, Constable Gould mistakenly identifies the accused as a person observed on surveillance form the very outset of the investigation.

In fact, as the officer readily admitted on cross-examination, the accused was not observed on surveillance until late January 2008, when the surveillance effort became significantly more intense than it had been previously. [ 41 ] The officer concedes that Paragraph 34 should have been worded differently, to more clearly indicate that the various individuals to whom reference is made did not all become surveillance subjects at the same time. I accept that Constable Gould did not mean to convey an inaccurate message with respect to the first sighting of Mr. Sranko, but he surely did so.

Nor do I consider that error to be minor. It is not in the nature of a “summary” or “conclusory” paragraph which the authorizing judge would overlook when analyzing the strength of the investigators’ case against Mr. Sranko. [ 42 ] Constable Gould then describes some twelve different instances in which the surveillance team made observations which included the accused Sranko between January 29, 2008 and June 4, 2008.

In each case, the surveillance information is conveyed to the authorizing judge in this fashion: I have read a surveillance report for [date] prepared by Constable [name] and the following is an accurate account of the observations made on that date: [ 43 ] In each of the twelve situations involving Mr. Sranko, a recitation of the day’s observations is then provided, including specific reference to sightings of the particular individual. His name is given in each case.

The sightings are said to have occurred in circumstances which the authorizing judge could consider incriminating when set against the background material referred to throughout the affidavit. In general, the sightings comprise instances in which Mr. Sranko is observed meeting with other persons such as Mr. Dillala and Mr. Stevenson, with respect to each of whom a considerable body of incriminating data is provided. [ 44 ] When each of the twelve “surveillance” paragraphs involving Mr.

Sranko is read giving the words their ordinary meaning, it appears plain to me that the affiant is conveying the message that he has read the daily surveillance report in each case and is summarizing its content for the authorizing judge. The authorizing judge would naturally interpret that to mean that the affiant was supplying information which had been noted down on the same day as the various incidents described, or at least very soon thereafter. [ 45 ] With respect to the identification of Mr. Sranko, however, the effect of Constable Gould’s wording is significantly misleading.

That conclusion becomes immediately apparent upon reading the individual surveillance reports to which the affiant refers in each case. The authorizing judge, of course, did not have the benefit of seeing the actual surveillance reports. [ 46 ] At least until April 14, 2008 none of the surveillance reports refers to Mr. Sranko by name. In each case he is referred to as “unidentified male” or by some general description such as “large male with shaved head”.

Significantly, no attempt is made in the surveillance reports to ensure that when the same person is believed to have been observed on different days he is given a consistent reference tag, such as “unidentified male #5”, or some similar designation. [ 47 ] During the cross-examination of Constable Gould, considerable attention was naturally paid to the question of how he managed in his affidavit to ascribe a name to a person who was not named the surveillance reports being quoted.

The issue is resolved, in part, by reference to two incidents which occurred in the late spring of 2008, before the affidavit was sworn. [ 48 ] The first incident involved the surveillance team sighting a group of men boarding a plane at an airport in Victoria on March 15, 2008. Informants had told the police beforehand that Mr. Dilalla and some of his cohorts would be flying to Mexico to meet with a drug source in that country. The group at the airport included Mr. Stevenson and Mr.

Dilalla, both of whom were already known to the police by name at that time. [ 49 ] After the men had boarded the plane, a member of the surveillance team made inquiries of airline security personnel, seeking the names of those who had just boarded. By that means, the officer obtained the names of all of the men who had been under surveillance that day. The police also managed to secure a videotape depicting the actions of the men in the airport terminal.

I gather that the videotape was not actually made available to the police for several weeks after the March 15 th sightings, however, a fact which will become relevant momentarily. [ 50 ] Armed with the identifying information obtained from the airport, the surveillance team prepared (or perhaps added to) a photo montage of the suspects they had been watching all along. They were now able to ascribe matching names. Again, it is not clear precisely when that process was completed, but it does appear that by late April at the latest the team had ascribed the name Ryan Sranko to one of their photographs.

[ 51 ] The second incident involved a situation in which two men were observed by the surveillance team travelling north from Victoria to Duncan on May 28, 2008 in a car identified through unimpeachable police sources as being registered to Mr. Sranko. The passenger in the car was Mr. Dillala.

Informant information which the police had acquired beforehand led them to believe that Dillala was travelling to Duncan that day to collect certain drug debts. [ 52 ] By happenstance, the vehicle in which the two men were travelling exceeded the speed limit and was stopped by a police officer unrelated to the surveillance team. The driver of the vehicle showed identification to that police officer and was issued a violation ticket.

A member of the surveillance team confirmed with the police officer that the driver had identified himself as Ryan Sranko and had provided an address which the surveillance team knew to match the address on the accused’s licence. [ 53 ] The May 28 th incident thus served as strong confirmation of Mr. Sranko’s identity. [ 54 ] Constable Gould then went about the time-consuming process of attempting to insert the name Sranko into his affidavit in appropritate places to more precisely identify one of the persons who had been under surveillance throughout the winter and spring months of 2008.

Except in one instance in early March in which he had actually been on surveillance himself and had apparently observed Mr. Sranko personally, he completed the identification process by first determining (from the surveillance reports) the name of the individual surveillance officer who claimed to have seen the target who could possibly have been Mr. Sranko, and asking that officer whether that identification by name could now be made.

In most cases, no doubt the process was made easier by the fact that the target in question had been seen operating a vehicle known to be registered to Ryan Sranko. [ 55 ] The authorizing judge was not made privy to the details of the process which led Constable Gould to ascribe the name Sranko to the individual he was referring to when deposing to the contents of each of the twelve surveillance reports.

The fact that the identification process involved layers of investigation remained completely concealed from the authorizing judge, as did the fact that a name had only been ascribed to an unknown person long after the actual surveillance observations had been made. [ 56 ] I would perhaps not be so concerned about the misleading manner in which Mr. Sranko is identified by name in the affidavit if the process of ascribing the name to the previous “unknown male” was a simple, straightforward process for Constable Gould. In fact, it was not simple or straightforward at all in some instances.

I will give three examples. [ 57 ] On March 4, 2008 Constable Gould had not yet been designated as the affiant in this surveillance operation; he was still “on the road” actively engaged in making surveillance observations. On that day he was part of a group which observed two men leave a restaurant at Mill Bay and get into a car outside. One of the men was already known to him as Mr. Dilalla.

He had never seen the other man before and, since he was taken off active surveillance within two weeks thereafter, he never saw him again. [ 58 ] He saw the second man “only for a few seconds” and he described the man in his notebook merely as an unknown male. [ 59 ] At some time after mid-April, as I have noted above, the surveillance team ascribed the name “Sranko” to one of the persons seen at the airport on March 15 th . A photograph was posted, bearing the name Sranko, for the members of the surveillance team to see.

At some time after that, Constable Gould went back over the surveillance report for March 4 th and mulled over his own recollection of the events from that day. He then determined that the person he had described in his notes only as “unidentified male” could now be given the name Sranko. That is how he referred to him in the affidavit. [ 60 ] The authorizing judge, reading Constable Gould’s description of the events of March 4 th would naturally conclude that the surveillance report made that day placed Mr. Sranko together with Mr. Dilalla at the Mill Bay restaurant.

The authorizing judge would have no way of knowing that the identification of Mr. Sranko was actually made by Constable Gould himself, going back over the events weeks or months after the event and attempting to put a name to a person he had seen briefly on that one occasion only.

Notably, Constable Gould managed to incorrectly record the license number on the vehicle which the two men entered outside the Mill Bay restaurant, but that fact also would be unknown to the authorizing judge. [ 61 ] Constable Gould may or may not have been correct in his affidavit when he ascribed the name Sranko to the person he saw outside the restaurant on March 4, 2008. That is not the issue.

The essential point to note is that the manner in which Constable Gould described the event for the authorizing judge misled him and robbed him of the opportunity to make a neutral decision on the matter of identification. [ 62 ] On April 9, 2008 surveillance officers tracked Mr. Dilalla’s movements from Vancouver to Victoria. Dilalla was carrying a red backpack in which the police believed he transported drugs from time to time. He was followed to 160 Wilson Street, an address in Victoria which the police believed to be the residence of Mr.

Sranko. [ 63 ] The surveillance report for April 9 th states that once Dilalla arrived at the Wilson Street address he was met by “a large male with a shaved head”. The two men, described as being “two men with shaved heads”, left soon afterwards in a motor vehicle. In the report, the first of those two observations is attributed to one of the surveillance members named Corporal Pollard, the second to Constable Pollock. [ 64 ] In his affidavit, however, Constable Gould advised the authorizing judge that the surveillance report indicated that Mr. Dilalla was met by Sranko at the Wilson Street address.

When asked in cross-examination to comment on how he arrived at that conclusion, Constable Gould advised that he spoke to Corporal Pollard shortly before the affidavit was presented to the authorizing judge, and that Pollard confirmed that the person he described in his notes as “a large male with a shaved head” was actually Mr. Sranko. [ 65 ] The difficulty with the identification process in this instance is somewhat subtle. Corporal Pollard noted in a memorandum dated April 4 th that he now knew that the name Ryan Sranko could be attributed to one of the men who had been under surveillance for some time.

In that same memorandum, Constable Pollard noted that this advancement in the identification process came about as a result of the March 15 th incident at the airport.

[ 66 ] So how is it, defence counsel asks, that when Corporal Pollard is describing the events outside the Wilson Street address on April 9 th he is only able to refer to the person whom Mr. Dilalla met as “a large male with a shaved head”? How could he call that person “Sranko” when talking to Constable Gould in early June, when he was apparently not able to ascribe a name to him on April 9 th ?

Constable Gould could not answer that question while under cross-examination because he had not noted the apparent discrepancy in Corporal Pollard’s identification materials until it was pointed out to him in court. [ 67 ] Again, I am driven to the conclusion that the ability of the authorizing judge to assess any weaknesses in the surveillance identification of Mr. Sranko on April 9 th , 2008 was completely stripped away by the incomplete and misleading manner in which Constable Gould presented the relevant information to him. [ 68 ] Finally, there is the example of what occurred on April 14, 2008.

Shortly before 3:30 pm on that date, the surveillance team followed Mr. Sranko’s motor vehicle to a condominium complex on Songhees Road in Victoria. Mr. Dilalla was observed to be a passenger in the vehicle. In Constable Gould’s affidavit, there is no mention of anyone getting out of the vehicle at that address, but there is a note that about half an hour later four people came out of the residence. One of them is referred to as “Dilalla” and he is said to be carrying the familiar red backpack.

The others are described as “Sranko, an unknown male and an unknown female”. [ 69 ] The surveillance report for that specific time on April 14, 2008, however, does not mention Mr. Sranko being with Mr. Dilalla when Dilalla came out of the Songhees condominium. Instead, it refers to Mr. Dilalla being in company of an unknown male and an unknown female. [ 70 ] Constable Gould, in cross-examination, testified that he was able to confidently place Mr.

Sranko’s name in the affidavit at this point because he spoke with the specific surveillance officer, Constable Ellis, who is mentioned in the surveillance report as having made the observation of the persons exiting the Songhees property. Again, Constable Gould spoke with Constable Ellis shortly before submitting the affidavit to the authorizing judge. [ 71 ] Upon reviewing Constable Ellis’ notebook for the afternoon of April 14, 2008 defence counsel was able to confirm that she did indeed identify Mr. Sranko by name on that occasion.

That does not explain, however, why he was referred to as an unidentified male in the surveillance note nor does it explain the fact that the surveillance report speaks of three people being seen, whereas Constable Ellis has noted four people. Constable Gould testified that the members of the surveillance team would normally see the daily surveillance reports and be asked to correct any errors therein. [ 72 ] I appreciate that Constable Gould made the effort to contact the individual surveillance officers in an attempt to verify the accuracy of the information he intended to submit to the authorizing judge.

In paragraph 9 of the affidavit he makes an attempt to explain that he took that step. Unfortunately, paragraph 9 is worded in such a clumsy fashion that it utterly fails to alert the authorizing judge to the true nature of the procedure which he adopted. [ 73 ] The three examples which I have set forth above --- and there are others --- lead me to the conclusion that the authorizing judge was not fully or properly informed about the manner in which Mr. Sranko was identified for purposes of the affidavit, at least not with respect to any of the surveillance operations which occurred before April 25, 2008.

The frailties attendant upon the after-the-fact identification process which actually occurred in this case, which the authorizing judge should have been allowed to assess for himself, were completely buried beneath the repeated blithe but misleading assertions that the surveillance reports identified the subject. [ 74 ] Crown Counsel concedes that Constable Gould’s wording as it relates to the identification of this accused may have been imperfect.

He submits, however, that any error which Constable Gould made in that respect has been cured through the amplification process that has occurred in the course of the voir dire . Crown Counsel says that we now know how the affiant reached his conclusions, no damage has been done, and that any excisions to be made by the reviewing court should accordingly be kept to a minimum. [ 75 ] I strongly disagree.

It bears repeating that the test for the reviewing court to apply is not whether Constable Gould is ultimately proved to be correct in his assertion that the accused was the person observed on each of the surveillance dates. The issue is whether the authorizing judge was properly informed so as to make his own assessment on the point. [ 76 ] The amplification process, as described in Morelli , supra is not intended to deal with substantial issues of identification such as those which arise in this case.

To allow the Crown to cleanse the errors which Constable Gould made on this issue would indeed be to circumvent the prior authorization requirement set forth in

Part VI of the Criminal Code . [ 77 ] There are instances in which the amplification principle can be used in this case. I do not think that they are material to the outcome, but I will mention two of them in any event so as to illustrate the distinction between the sort of situation in which amplification is appropriate and the sort of situation where it is not. [ 78 ] The evidence given by Constable Gould during the voir dire discloses, for example, that the author of the relevant portion of the surveillance report of April 9, 2008 was not Constable Barrow as stated in the affidavit, but Constable Johnson.

In a similar vein, the evidence of Constable Gould at the voir dire quickly clears up the apparent confusion and contradiction in the affidavit concerning the various residential addresses ascribed to the accused from time to time. [ 79 ] The two examples which I have just described illustrate the sort of error which is of the “minor or technical” variety referred to in Morelli as properly being the subject of amplification. [ 80 ] In my view, the misleading language used by Constable Gould on the issue of Mr.

Sranko’s identification, when coupled with the evidence on the voir dire which illustrates the substantial weaknesses which could arise from the manner in which the identification was actually made, calls into question every single surveillance identification described before April 25, 2008. It is only on that date, and thereafter, that it is possible to look at the affidavit and see that it matches the surveillance reports concerning the identification of Mr. Sranko.

That is, of course, because the surveillance had been under surveillance for some time and no longer had to go back over notes made weeks and months before, or dredge up fading memories, in order to make a full identification. To put it another way, with respect

to the contents of the affidavit concerning surveillance identifications made on and after April 25, 2008 the authorizing judge received an accurate and reliable statement when he was told that the identification of Mr. Sranko arose from the daily surveillance reports. That cannot be said about any of the earlier identifications. [ 81 ] I would excise all of the portions of Constable Gould’s affidavit in which he purports to identify the accused Sranko on the basis of any surveillance reports earlier than April 25, 2008.

In place of the name “Sranko” in each case I would insert the exact wording that appears in the relevant surveillance report. I emphasize that the excision applies to the identification of the person only. It does not apply with respect to the association of motor vehicles to their owner Ryan Sranko. The attribution of motor vehicle ownership in the affidavit was properly made. [ 82 ] The next question which arises concerns the status or effect of the affidavit once the necessary excisions have been made.

Is there enough material remaining in the affidavit from which the authorizing judge could have issued the wiretap authorization? In my view, the answer to that question must surely be answered in the affirmative. [ 83 ] As a starting point, it is clear that even after all excision have been made the affidavit contains information from surveillance sources, informants and databases which, taken together, could lead to a fair inference that at least Mr. Stevenson and Mr. Dilalla were seriously implicated in a drug trafficking conspiracy on lower Vancouver Island.

Indeed, it would be difficult to reach any other conclusion about those two individuals, based on the information provided in the affidavit. [ 84 ] If there was significant reason for the authorizing judge to conclude, upon reading the affidavit material, that Mr. Stevenson and Mr.

Dillala were involved in drug trafficking on lower Vancouver Island, it stands to reason that the judge would look very carefully at those closely associated with those men, and the nature of the associations, in order to determine whether there were reasonable grounds to believe that those other persons were also implicated. [ 85 ] The affidavit material discloses that in a period of time between December 1, 2007 and February 26, 2008 Mr. Stevenson telephoned Mr. Sranko’s number 118 times, a significant number compared to the calls made that Stevenson apparently made to others.

There is no obvious personal connection between the two men to explain such frequent contact. [ 86 ] Mr. Sranko was not seen by the surveillance team to have any visible source of income. He did not appear to be employed. While the surveillance team was primarily targeting Mr. Stevenson and Mr. Dilalla between January 2008 and early June 2008 vehicles registered to Mr. Sranko come under observation at least fifteen times. On many of those occasions Dilalla is a passenger in a Sranko- owned vehicle. [ 87 ] On March 15, 2008 airline records reveal that Mr. Sranko accompanied Mr. Stevenson and Mr.

Dilalla to Mexico, at a time when informants were advising the police that Stevenson and Dilalla are making the trip in order to meet with a drug source. [ 88 ] Beginning on April 25, 2008 Mr. Sranko is plainly identified engaged in suspicious activity, either in association with Mr. Dilalla or persons connected with him. In particular:

a) On April 25 th , Sranko is observed to drive to an address on Bear Mountain Parkway where a man named Pearson resided. Pearson is described as an associate of both Dilalla and Stevenson, and the affidavit discloses a considerable body of evidence implicating him in the alleged drug trafficking ring. Sranko then drives away from the Bear Mountain Parkway residence and heads for Duncan. On the way, he begins to engage in driving patterns which could be described as being designed to evade police;

b) On May 8 th Sranko was seen to meet with Dilalla outside the Sranko residence at a time when Dilalla was carrying a back pack of the sort which police believed he frequently used to transport cocaine. The two of them then drove away together.

c) On May 25 th , Sranko was seen to drive Dilalla north from Victoria to Duncan at a time when the police had received a tip from an informant that Mr. Dilalla would be going to Duncan to collect various drug debts. [ 89 ] Viewing the affidavit in its totality, I have no doubt whatever that even after all of the necessary excisions from the affidavit have been made, there remains a substantial body of information from which the authorizing judge could conclude that there was a reasonable likelihood that the interception of Mr.

Sranko’s private communications would assist in the investigation of the offences with which the police were concerned. [ 90 ] I must then consider the submission that the authorization ought to be quashed in the exercise of the court’s residual discretion to do so where it appears that police conduct in obtaining the authorization has been so subversive of the authorization process as to deserve complete censure in order to protect the process and the reputation of the administration of justice.

In my view that submission must fail. [ 91 ] There is no doubt that Constable Gould’s affidavit is flawed in some respects. I have spent some time in these Reasons exploring the mistakes that he made when using the surveillance material for purposes of identifying Mr. Sranko to the authorizing judge. I have also mentioned the inaccuracy involved in advising the authorizing judge that Mr. Sranko was amongst those who had been the subject of surveillance since July 2007. [ 92 ] There are other errors of significance as well.

I note, for example, that it was wrong for the affiant to advise the authorizing judge that Mr. Sranko was, like others, in the habit of “dumping” cell phones regularly in order to avoid police investigative techniques. Others may have engaged in “dumping” their phones, but there was no basis to make that claim against Mr.

Sranko, and it was utterly careless to do so. [ 93 ] I must say that I am not particularly impressed with the Crown’s response, with respect to at least some of the examples which I have just given, that Constable Gould’s errors are immaterial because they only relate to “summary paragraphs” in the affidavit, rather than matters of substance which the authorizing judge would focus on when determining whether to issue the authorization. Whatever

specific status may be given to the relevant paragraphs they still contain significant errors and I see no reason whatever why I should not consider such errors as reflecting on the care, or lack thereof, demonstrated by the affiant.

I consider it to be totally inappropriate to dismiss an affiant’s errors as immaterial on the basis that the affiant is entitled to take unbridled advantage of the often fine distinction to be drawn between “substantive” paragraphs and “mere summaries” in an affidavit. [ 94 ] Nonetheless, it is important to bear in mind the context within which Constable Gould was working when he prepared his affidavit.

In the spring of 2008, he was a police officer with about seven years of police experience who was asked for the first time in his career to prepare an affidavit in support of an application for a wiretap authorization. Such affidavits are different in a number of significant ways to the affidavits prepared in support of search warrants, with which the officer was familiar. [ 95 ] Over a period of about three months Constable Gould was required to piece together a

summary of a sprawling investigation, involving many suspects, reports from many surveillance officers, informant information and material received from databases. [ 96 ] I am not suggesting for a moment that a different standard of conduct applies to affiants involved in long and complex cases, as compared to those involved in straightforward matters.

The point to note, though, is that any assessment of whether the proper standard has been met in a given case must take into account the obvious recognition that inadvertent error is apt to creep into the efforts of even the most diligent affiants in the former situations much more often than in the latter. [ 97 ] Constable Gould worked long and hard attempting to ensure the accuracy of his affidavit. His efforts were overseen by counsel at the Department of Justice in the latter stages.

With respect specifically to the process of ascribing names to the persons described as unknowns on particular surveillance dates, he took the time to speak to each of the individual surveillance officers involved in order to confirm that he was properly applying the names which had turned up at later stages of the investigation. There is no suggestion that he inaccurately recorded what each of those individual investigators told him. He even appears (in paragraph 9) to have attempted an explanation of the process which he undertook when contacting the individual surveillance officers.

In the final analysis, his error occurred in failing to articulate that process in a manner which alerted the authorizing judge to the full investigative technique. [ 98 ] Given the nature of the investigation in this case and the requirement that an affiant be both accurate and concise in preparing his affidavit, I am satisfied that Constable Gould, in general, made a commendable effort to synthesize the material at hand and present it to the authorizing judge in a fair manner. I should say in addition that he impressed me as a candid and forthright witness on the voir dire .

He conceded error on several occasions and attempted to understand the issues that were being put to him, subtle as those issues may have been at times. [ 99 ] In my view, there is no question that Constable Gould should properly have seen that significant parts of his affidavit were apt to mislead the authorizing judge, particularly those parts dealing with the manner in which the accused Sranko was “identified” while on surveillance. His failure to recognize those errors is neither excusable nor justified.

But at the same time I find that the errors were made in good faith and without any deliberate attempt to mislead. [ 100 ] The authorities disclose some flexibility, even inconsistency, in setting out the test for delineating the precise point at which an affiant may be said to have “subverted the process” to such an extent that the resulting authorization must be considered tainted beyond redemption. For present purposes, however, I do not find it necessary to explore the nuances.

Using any of the recognized tests, I do not believe it has been demonstrated that Constable Gould’s errors, though careless and easily avoidable at times, rise to anywhere near the level required to vitiate the authorization granted on June 11, 2010. CONCLUSION [ 101 ] I am satisfied that the wiretap authorization was lawfully granted on June 11, 2010. Accordingly, I find that the accused has failed to demonstrate any breach of his

section 8 Charter rights and I do not find it necessary to consider the application of section 24(2) of the Charter. ________________________ E.C. Blake, Provincial Court Judge