2017 QCCA 1283, 2017 QCCA 1283

Unofficial English Translation O'Reilly c. R. 2017 QCCA 1283 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005612-146 , 500-10-005613-144, 500-10-005614-142 (500-01-002508-080 SEQ.ACC. 006, 007, 010, 011, 013) DATE: August 30, 2017 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. MARIE ST-PIERRE, J.A. ROBERT M. MAINVILLE, J.A. No.: 500-10-005612-146 GERALD O’REILLY LOUIS MOREAU PIERRE MOREL APPELLANTS – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix No.: 500-10-005613-144 SERGE PERRON APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix No.: 500-10-005614-142 DAVID ALEXANDER PHILLIPS APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] On appeal from guilty verdicts rendered February 24, 2014, by Judge Louise Bourdeau of the Court of Quebec, District of Montreal. [ 2 ] For the reasons of Mainville J.A., with which Morissette J.A. and St-Pierre J.A. agree, THE COURT: [ 3 ] DISMISSES the appeal of Gérald O’Reilly, Louis Moreau and Pierre Morel in case number 500-10-005612-146; [ 4 ] DISMISSES the appeal of Serge Perron in case number 500-10-005613-144; [ 5 ] DISMISSES the appeal of David Alexander Phillips in case number 500-10-005614-142.

YVES-MARIE MORISSETTE, J.A. MARIE ST-PIERRE, J.A. ROBERT M. MAINVILLE, J.A. Mtre Isabel J. Schurman Mtre Francis Villeneuve-Ménard SCHURMAN LONGO GRENIER For the appellants Gérald O’Reilly, Louis Moreau and Pierre Morel Mtre Gérald Soulière LAMARRE LINTEAU et MONTCALM For the appellant Serge Perron Mtre Dominique St-Laurent ME DOMINIC ST-LAURENT INC.

For David Alexander Phillips Mtre Isabelle Doray Mtre Alik-Hasmig Dikijian DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES For the respondent Hearing Dates: June 6-7, 2017 REASONS OF MAINVILLE, J.A. [ 6 ] The Court is seized of three appeals from guilty verdicts rendered on February 24, 2014, by Judge Louise Bourdeau of the Court of Quebec, District of Montreal, with respect to five individuals involved in the same matter: Gérald O’Reilly, Louis Moreau, Pierre Morel (appeal case number 500-10-005612-146), Serge Perron (appeal case number 500-10-005613-144) and David Alexander Phillips (appeal case number 500-10-005614-142). [ 7 ] In the last case, concerning David Alexander Phillips (appeal case number 500-10-005614-142) the Court is also seized with an application for leave to raise on appeal a new constitutional question concerning the right to be tried within a reasonable time. [ 8 ] In addition, the Court is seized with applications for leave to appeal from (

a) the sentence imposed on the appellant Louis Moreau on June 20, 2014; (

b) the sentence imposed on appellant Gérald O’Reilly on July 2, 2014; (

c) an order imposing a fine in lieu of forfeiture issued July 2, 2014, also with respect to Gérald O’Reilly; and (

d) an order for forfeiture of offence-related property. [ 9 ] All of these appeals and applications were joined and heard together by the same panel of the Court on June 6 and 7, 2017. [ 10 ] These reasons concern the appeals from the guilty verdicts rendered against Gérald O’Reilly, Louis Moreau, Pierre Morel (case number 500-10-005612-146), Serge Perron (case number 500-10-005613-144) and David Alexander Phillips (case number 500-10- 005614-142). [ 11 ] Separate judgments are also issued this day concerning the application for leave to raise on appeal a new constitutional question concerning the right to be tried within a reasonable time and the applications for leave to appeal the sentences and forfeiture orders.

BACKGROUND [ 12 ] In July 2006, a police source, Robin Thibault, provided the Sûreté du Québec (“SQ”) information regarding fraudulent activities undertaken through their legitimate businesses by husband and wife Gérald and Felicitas O’Reilly . Almost simultaneously, the Royal Bank of Canada provided the SQ with a suspicious transaction report implicating Serge Perron. An important investigation bearing the name “[ translation ] Conquest” followed, which continued from July 2006 to March 2008. [ 13 ] The investigation revealed a network of cigarette contraband and money laundering.

Millions of contraband cigarettes flowed to Nova Scotia through this network, thereby defrauding the governments of Canada and Nova Scotia of many millions of dollars in unpaid

taxes. [ 14 ] In short, the network sourced contraband cigarettes from a variety of suppliers. The cigarettes were delivered in standard cases to a residence at 93 Kirkwoood Street in Beaconsfield, a suburb of Montreal, and stored in a garage. They were then re-packaged in large cardboard boxes which were transported inside a cube truck for delivery in Montreal to a refrigerated trailer-truck registered in Nova Scotia. This trailer-truck then continued to Nova Scotia, so the cigarettes could be distributed in that province.

The proceeds of the contraband returned to Montreal though various channels, notably in soap boxes delivered by Canada Post, and was then laundered, in part, using ATMs. [ 15 ] The investigation ended with charges being brought against 20 individuals in five different cases, each targeting different criminal activities. The case now before this Court concerns criminal activity linked to contraband tobacco.

It is in this context that in March 2008, 13 individuals faced the following charges of fraud, conspiracy to commit fraud, criminal organization and laundering the proceeds of crime [the underlined names are those of the appellants]: [ translation ] Concerning Morris BONSPILLE (001), Matthew LAZARE (002), Peter MARTIN (003), Peter James MARTIN (004), Blair Fraser MCKEIGAN (005), Louis MOREAU (006), Pierre MOREL (007), Joseph Burton MURPHY (008), Felicitas O’REILLY (009), Gerald O’REILLY (010), David Alexander PHILLIPS (011), Winworth SAMPSON (012) and Serge PERRON (013): 1.

Between July 13, 2006, and March 12, 2008, in Montreal, District of Montreal; in Beaconsfield and Town of Mount Royal, District of Montreal; in Kahnawake and St-Constant, District of Longueuil; in Cornwall Island, Ontario; in Sydney, Nova Scotia and elsewhere in Canada, by deceit, falsehood or other fraudulent means, defrauded the Government of Canada of a sum of money exceeding $5,000.00, thereby committing the indictable offence set out at s. 380(1) (

a) of the Criminal Code . 2. Between July 13, 2006, and March 12, 2008, in Montreal, District of Montreal; Beaconsfield and Town of Mount Royal, District of Montreal; in Kahnawake and St-Constant, District of Longueuil; in Cornwall Island, Ontario; Sydney, Nova Scotia and elsewhere in Canada, by deceit, falsehood or other fraudulent means, defrauded the Government of Nova Scotia of a sum of money exceeding $5,000.00, thereby committing the indictable offence set out at s. 380(1) (

a) of the Criminal Code . 3. Between July 13, 2006, and March 12, 2008, in Montreal, District of Montreal; Beaconsfield and Town of Mount Royal, District of Montreal; in Kahnawake and St-Constant, District of Longueuil; in Cornwall Island, Ontario; Sydney, Nova Scotia and elsewhere in Canada, conspired together and with others still unknown to commit an indictable offence, namely: to defraud the governments of Canada and Nova Scotia, thereby committing the indictable offence set out at s. 465(1) (

c) of the Criminal Code . Concerning Matthew LAZARE (002), Felicitas O’REILLY (009), Gerald O’REILLY (010) and David Alexander PHILLIPS (011) 4.

Between July 13, 2006, and March 12, 2008, in Montreal, District of Montreal; Beaconsfield and Town of Mount Royal, District of Montreal; Kahnawake, District of Longueuil; Sydney, Nova Scotia and elsewhere in Canada, did commit an indictable offence set out in the Criminal Code or any other Act of Parliament for the benefit of, at the direction of, or in association with a criminal organization, thereby committing the indictable offence set out at s. 467.12 of the Criminal Code . Concerning Felicitas O’REILLY (009), Gerald O’REILLY (010) and David Alexander PHILLIPS (011) 5.

Between July 13, 2006, and March 12, 2008, in Montreal, District of Montreal; Beaconsfield and Town of Mount Royal, District of Montreal; Sydney, Nova Scotia and elsewhere in Canada, did use, transfer the possession of, send, deliver, transport, alter, dispose of or otherwise transfer the possession of property or proceeds of any property with the intent to conceal or convert it, knowing or believing that it had been obtained or derived from the commission, in Canada, of a designated offence, thereby committing the indictable offence set out at s. 462.31(2) (

a) of the Criminal Code . [ 16 ] Seven of the co-accused pled guilty at trial: Morris Bonspille, Matthew Lazare, Peter Martin, Peter James Martin, Blair Fraser McKeigan, Joseph Burton Murphy and Winworth Sampson. An eighth co-accused, Felicitas O’Reilly, passed away on February 3, 2013, before the trial ended. PROCEEDINGS RELATED TO THE TRIAL [ 17 ] Over the course of 22 days between May 13, 2009, and June 11, 2010, a joint preliminary inquiry was held before Judge Louise Bourdeau of the Court of Quebec.

The case was eventually committed to trial and the evidence adduced during the preliminary inquiry was read into the trial record. [ 18 ] The trial was held between April 18, 2011, and October 8, 2013, before Judge Bourdeau. The prosecution’s evidence was abundant and rather overwhelming. The trial was characterized by numerous defence applications seeking the exclusion of the evidence. For the purpose of these appeals, it is sufficient to refer to the following applications: (

a) An application for a stay of proceedings based on the lack of credibility of Robin Thibault, the police source at the origin of the investigation. In the application, it was argued that a stay of proceedings should be ordered or, at least, that the source’s testimony should be excluded because he was so unreliable that his testimony affected the fairness of the trial in violation of ss. 7 and 11(

d) of the Canadian Charter of Rights and Freedoms [1] (“ Charter ”). The appellants ultimately withdrew this application, while reserving their right to plead subsequently that the trial judge should exercise the residual common law power to exclude prejudicial evidence by setting aside Robin Thibault’s testimony. (

b) On May 2, 2011, an application pursuant to ss. 8 and 24(2) of the Charter seeking to exclude evidence obtained pursuant to a

warrant granting access to call records from a telephone belonging to appellant Moreau. On May 5, 2011, the trial judge dismissed the application (May 5, 2011, Judgment regarding Voir Dire #3). (

c) On May 4, 2011, a Charter application seeking to exclude evidence obtained pursuant to warrants granting access to the call records of appellants Perron and O’Reilly and the latter’s spouse. The trial judge dismissed the application on May 25, 2011 (May 25, 2011, Judgment regarding Voir Dire #4). (

d) On November 22, 2011, a Charter application seeking to exclude evidence obtained pursuant to a general warrant authorizing surreptitious entry to Lunds Self Storage in Nova Scotia. A debate with respect to the facial validity of this warrant took place on November 28, 2011. The trial judge dismissed the application on December 16, 2011 (December 16, 2011, Judgment regarding Voir Dire #5). (

e) On January 6, 2012, a Charter application seeking to exclude evidence obtained pursuant to several general warrants. On January 17, 2012, the judge dismissed the application (January 17, 2012, Judgment regarding Voir Dire #6). (

f) In January 2012, a Charter application seeking to exclude evidence obtained pursuant to production orders and general warrants. On January 19, 2012, the trial judge dismissed the application (January 19, 2012, Judgment regarding Voir Dire #8). (

g) On February 6, 2012, a Charter application seeking to exclude evidence obtained pursuant to another production order and another general warrant. On February 13, 2012, the trial judge dismissed the application (February 13, 2012, Judgment regarding Voir Dire #10). (

h) On March 9, 2012, a Charter application seeking the exclusion of evidence obtained pursuant to wiretap and video surveillance warrants. On March 30, 2012, the trial judge dismissed the application (March 30, 2012, Judgment regarding Voir Dire #11). (

i) On May 28, 2012, a voir dire was held, following the common law confessions rule, to determine the admissibility of a statement made by appellant Moreau on March 19, 2008, the day he was arrested, and in which he recognized his involvement in the matter. On May 30, 2012, the trial judge concluded that the statement was voluntary and admitted it into evidence. [ 19 ] On April 15, 2013, the appellants and the respondent filed Exhibit P-23 respecting the [ translation ] Admission of the factual background underlying the charges which set out the prosecution’s abundant evidence in support of the charges.

It suffices at this time to highlight the following admission: [ translation ] 6. The evidence as a whole reveals the involvement of the accused in the purchase or sale of contraband cigarettes, each having a well- defined role and responsibilities. 6.1 The criminal involvement of Pierre Morel is, however, contested by the defence. [ 20 ] On September 16 and 17, 2013, pleading before the trial judge, the appellants narrowed the questions at issue while contesting their guilt with respect to all of the charges.

For appellants O’Reilly and Phillips, the question was whether a criminal organization existed – an essential element of the 4 th charge: the commission of an indictable offence for the benefit of, at the direction of or in association with a criminal organization. For appellant Moreau, the question was whether he had participated in the conspiracy (the 3 rd charge). Appellant Morel advanced that he was innocent of all the charges brought against him (1 st , 2 nd and 3 rd charges).

Appellant Perron contested his guilt with respect to the 2 nd (fraud) and 3 rd (conspiracy) charges, but only with respect to the government of Nova Scotia. [ 21 ] On February 24, 2014, the trial judge issued a single judgment on the verdicts: (

a) O’Reilly and Phillips were found guilty on all five charges, including the 4 th – having committed an indictable offence for the benefit of, at the direction of or in association with a criminal organization; (

b) Morel and Moreau were found guilty on the 1 st and 2 nd charges (fraud) but acquitted on the 3 rd (conspiracy); (

c) Finally, Perron was found guilty on the 1 st , 2 nd and 3 rd charges (fraud and conspiracy), including in relation to the government of Nova Scotia. [ 22 ] On June 20, 2014, the judge sentenced Morel and Moreau. Morel was given a 9-month conditional sentence and ordered to pay the victim surcharge. Moreau was sentenced to 18 months in prison and was relieved from paying the victim surcharge. [ 23 ] On July 2, 2014, the judge sentenced Perron, Phillips and O’Reilly. Perron was given a conditional sentence of two years less one day and ordered to pay the victim surcharge.

Phillips and O’Reilly were sentenced to the following: For the 1 st , 2 nd and 3 rd charges (fraud and conspiracy): 4 years of imprisonment; For the 4 th charge (criminal organization): 1 year of imprisonment, to be served consecutively; For the 5 th charge (laundering the proceeds of crime): 2 years of imprisonment, to be served concurrently. [ 24 ] As for O’Reilly, in a separate judgment, the judge granted the prosecution’s application for a fine in lieu of an order to forfeit the proceeds of crime. She ordered him to pay a fine of $258,865 within one year of his release.

She imposed a three-year prison term should he fail to pay the fine within the prescribed period.

[ 25 ] The judge also declared large sums seized in buildings linked to Gérald O’Reilly and two ATMs to be the proceeds of crime. Consequently, she ordered that these sums and the ATMs be forfeited for disposal in accordance with the law.

PROCEEDINGS ON APPEAL [ 26 ] The appellants all appealed from the February 24, 2014, judgment on the verdicts, raising both questions of law and questions of fact or mixed questions of law and fact, [2] giving rise to three distinct appeals which were joined on April 16, 2014. [3] [ 27 ] In their joint brief on the verdicts, appellants O’Reilly, Moreau, Morel and Perron argue that the judge erred in law, or in fact and in law as the case may be, when she: (1)did not conclude that the evidence obtained pursuant to the warrant respecting appellant Moreau’s call records had been obtained in violation of the Charter (May 5, 2011, Judgment regarding Voir Dire #3); (2)did not conclude that the evidence obtained pursuant to the warrant respecting the phone call records of appellants Perron and O’Reilly and the latter’s spouse were obtained in violation of the Charter (May 25, 2011, Judgment regarding Voir Dire #4); (3)did not hold a voir dire to determine the validity of the searches and seizures undertaken in executing various general warrants, production orders and wiretap authorizations (Judgments of January 17 and 19, February 13 and March 30, 2012, regarding Voir Dires #6, 8, 10 and 11); (4)admitted into evidence the statement of appellant Moreau (May 30, 2012, Judgment); (5)declared appellant O’Reilly guilty of the 4 th charge: having committed an indictable offence for the benefit of, at the direction of or in association with a criminal organization (ground of appeal regarding the verdict); (6)did not set aside the testimony of Robin Thibault (ground of appeal regarding a common law exclusion); (7)declared appellant Morel guilty of fraud with respect to the 1 st and 2 nd charges (ground of appeal regarding the verdict). [ 28 ] In a separate brief, appellant Phillips raises the following grounds:

(1) The trial judge erred in interpreting the provisions regarding the commission of an offence for the benefit of, at the direction of or in association with a criminal organization (ground of appeal regarding the verdict);

(2) She erred in law in her December 16, 2011, judgment refusing to exclude the evidence obtained pursuant to a general warrant authorizing surreptitious entry to Lunds Self Storage in Nova Scotia when she decided that the affiant was not required to ensure, prior to requesting the warrant in question, that none of the exceptions set out in s. 32 of the Excise Act, 2001 applied (December 16, 2011, Judgment regarding Voir Dire #5). [ 29 ] A few days before the appeal hearing, appellant Phillips submitted an application to the Court seeking leave to raise on appeal a new constitutional question concerning the right to be tried within a reasonable time. [ 30 ] Appellants Moreau and O’Reilly also submitted applications for leave to appeal from their sentences.

They submit that, in light of the nature of the offences and their personal circumstances, only conditional sentences are appropriate. These applications were deferred to the panel hearing the appeals on the verdicts [4] and they are the subject of separate judgments from this Court. [ 31 ] Appellant O’Reilly further submitted an application for leave to appeal the $258,865 fine imposed in lieu of forfeiture of the proceeds of crime, arguing that the judge should have exercised her discretion to reduce, if not eliminate, this fine.

In his application, he also seeks leave to appeal the order for forfeiture of the large sums that were seized. This application was deferred to the panel hearing the appeals on the verdicts [5] and is the subject of a separate judgment of this Court. [ 32 ] Appellants O’Reilly, Moreau, Perron and Phillips were released with conditions pending the outcome of their appeals [6] and the execution of the forfeiture orders concerning appellant O’Reilly was suspended pending the appeal. [7] At the time of the hearing before the Court, appellant Morel had already served his nine-month conditional sentence. [ 33 ] In

summary, the appellants challenge many aspects of the trial and most of the prison sentences, fines and forfeitures ordered by the judge. In fact, they challenge 14 judgments issued by the trial judge: 9 judgments refusing the exclusion of evidence, the judgement on the verdicts, 2 sentencing judgments and 2 judgments respecting forfeiture.

ANALYSIS THE FIRST GROUND OF APPEAL: THE EXCLUSION OF THE EVIDENCE OBTAINED PURSUANT TO THE EXECUTION OF A WARRANT FOR THE CALL RECORDS OF APPELLANT MOREAU (MAY 5, 2011, JUDGMENT REGARDING VOIR DIRE #3) [ 34 ] On September 28, 2006, the SQ sought and obtained from Judge Jean-Pierre Boyer of the Court of Quebec, a warrant requiring a telecommunications service provider to afford access to the call records of a cell phone linked to appellant Louis Moreau for the period between July 13 and September 26, 2006. [ 35 ] The warrant was issued pursuant to s. 492.2(2) of the Criminal Code , as it was then drafted:

492.2.

(1) A justice who is satisfied by information on oath in writing that there are reasonable grounds to suspect that an offence under this or any other Act of Parliament has been or will be committed and that information that would assist in the investigation of the offence could be obtained through the use of a number recorder, may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant (

a) to install, maintain and remove a number recorder in relation to any telephone or telephone line; and (

b) to monitor, or to have monitored, the number recorder.

(2) When the circumstances referred to in subsection (1) exist, a justice may order that any person or body that lawfully possesses records of telephone calls originated from, or received or intended to be received at, any telephone give the records, or a copy of the records, to a person named in the order. […] 492.2.

(1) Le juge de paix qui est convaincu, à la suite d’une dénonciation par écrit faite sous serment, qu’il existe des motifs raisonnables de soupçonner qu’une infraction à la présente loi ou à toute autre loi fédérale a été ou sera commise et que des renseignements utiles à l’enquête relative à l’infraction pourraient être obtenus au moyen d’un enregistreur de numéro peut décerner un mandat autorisant un agent de la paix ou, dans le cas d’un fonctionnaire public nommé ou désigné pour l’application ou l’exécution d’une loi fédérale ou provinciale et chargé notamment de faire observer la présente loi ou toute autre loi fédérale, celui qui y est nommé :

a) à placer sous enregistreur de numéro un téléphone ou une ligne téléphonique, à entretenir l’enregistreur et à les en dégager;

b) à surveiller ou faire surveiller l’enregistreur.

(2) Dans les circonstances visées au paragraphe (1), le juge peut ordonner à la personne ou à l’organisme qui possède légalement un registre des appels provenant d’un téléphone ou reçus ou destinés à être reçus à ce téléphone de donner le registre ou une copie de celui-ci à toute personne nommée dans l’ordonnance. […] [ 36 ] “Reasonable grounds to suspect” that an offence set out in the Criminal Code or another law of Parliament has been or will be committed is the standard to be met for issuing such a warrant.

It must also be established that the information sought would assist in the investigation of the offence and that the person targeted by the warrant legally possesses the call records. [ 37 ] Subjective suspicion of criminal activity is not enough to meet the “reasonable grounds to suspect” standard: such suspicion must be “reasonable”, that is to say based on objectively discernible facts which can then be subjected to independent judicial scrutiny. [8] Thus, there must exist a body of objectively discernable facts supporting the police’s reasonable grounds to suspect that a criminal offence has been or will be committed.

The objective facts must engage the reasonable possibility of an offence. [9] [ 38 ] This standard differs from that of “reasonable grounds to believe” with respect to the degree of probability that a criminal offence is being committed. The following distinction, laid out by the Supreme Court of the United States in the decision Alabama v. White , [10] was adopted by Justice Binnie in R. v.

Kang-Brown : [11] Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. [ 39 ] In R. v. Chehil , Justice Karakatsanis described the “reasonable suspicion” standard this way: [12] [29] Reasonable suspicion must be assessed against the totality of the circumstances.

The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley , 2009 SKCA 49 , 324 Sask. R. 286, at para. 60 .

A police officer’s grounds for reasonable suspicion cannot be assessed in isolation: see Monney , at para. 50. [ 40 ] The factors giving rise to such suspicions may also support entirely innocent explanations that must be weighed before concluding that the suspicions are reasonable. [13] However, the “reasonable grounds to suspect” standard does not impose a duty on the police to undertake further investigation seeking out exculpatory factors that could exonerate the targeted individual, [14] nor does it require the police to identify the specific offence or the illicit substance at issue. [15] It is sufficient that, taken as a whole, the facts upon

which the police rely are supported by objective evidence that is capable of supporting a logical inference of criminal behaviour. [16] [ 41 ] Here, the SQ relied on the following facts to convince Judge Boyer to issue the warrant for the call records of the telephone linked to appellant Moreau. [ 42 ] On July 13 and 18, 2006, a source informed the SQ that the Gérald O’Reilly and Felicitas O’Reilly were active in tobacco contraband.

The source alleged that the couple owned the company Alouette Canada Inc. (“Alouette”), located at 8505 Delmeade in the Town of Mount Royal (“TMR”), which employed approximately 20 individuals to distribute, maintain and repair roughly 1,200 arcade machines. The source added that Felicitas O’Reilly used the bank accounts of deceased individuals to hide the money.

According to the source, Louis Moreau, an Alouette employee, was travelling to the Maritimes once or twice a week, at the O’Reillys’ request, with a load of “Tabec” brand cigarettes hidden in cardboard boxes and transported in a 20-foot cube truck belonging to Alouette. Upon delivery, he would be paid cash for the cigarettes. On average, a transaction would bring in $60,000 in $20, $50 and $100 bills that Moreau would bring back to the O’Reillys in a cardboard box.

The source added that one Alex Phillips, from the Maritimes, would buy roughly $100,000 in contraband cigarettes per month. [ 43 ] The investigation revealed that neither the O’Reillys nor any business linked to 8505 Delmeade, TMR held a Quebec tobacco permit. [ 44 ] Surveillance was then conducted at the homes of Moreau and of the O’Reillys. One specific surveillance operation, conducted on September 20, 2006, allowed the SQ to observe suspicious behaviour: Louis Moreau left his home early in the morning to drive a cube truck to 8505 Delmeade, TMR.

With the truck, he then went to a residence on Kirkwood St. in Beaconsfield, a suburb of Montreal, where a Cadillac was parked. He backed the truck up to the garage annexed to the residence. The door to the garage was opened and two men were monitoring traffic on Kirkwood Street. Louis Moreau was then observed loading large cardboard boxes from the garage into the truck. He then left the residence on Kirkwood to return to 8505 Delmeade to unload the boxes in a warehouse.

The information sworn to obtain the warrant (“ITO”) then sets out the following facts: [TRANSLATION] - At 14:17 Louis Moreau loaded 18 cardboard boxes identical to those taken from 96 Kirkwood[ [17] ] into the cube truck L299197/Qc. During the loading process, a red Cadillac bearing the plate FCV9960/Qc arrived at 8550 Delmeade and the driver, Gérald O’Reilly, got out of the car to talk to Louis Moreau.

After the conversation with Gérald O’Reilly, Louis Moreau continued loading, finishing with a total of 35 boxes. - At 15:37, Louis Moreau left 8550 Delmeade behind the wheel of the cube truck L299197/Qc to go to the backyard of 8505 Delmeade (Alouette Canada Inc.) where he parked the truck. - At 20:25, a red trailer-truck bearing the Nova Scotia plate PR26750, towing a 53-foot trailer also bearing a Nova Scotia plate, 50990, arrived at 8505 Delmeade and stopped in the backyard of Alouette Canada Inc. The cube truck L299197/Qc was then observed back-to- back with the trailer-truck with Nova Scotia plates.

Louis Moreau, the driver of the trailer-truck from Nova Scotia and a man responding to the description of Gérard O’Reilly were observed behind the trucks.

The transfer of boxes from the cube truck to the trailer-truck was observed. - It was impossible for the investigators to observe more closely, because two vehicles – a red Cadillac matching the description of the car belonging to Gérard O’Reilly and a grey Chevrolet Cavalier – were conducting counter-surveillance of the perimeter. - At 21:18 the trailer-truck from Nova Scotia left 8505 Delmeade and went to the Flamingo/Olymel company on Pasteur Street in Boucherville. - At 23:22, the trailer-truck from Nova Scotia was left unattended on highway 20 after leaving the Flamingo/Olymel company. [ 45 ] On May 2, 2011, the accused submitted an application to the trial judge to exclude the evidence obtained pursuant to this warrant, arguing that it violated their right to be secure against unreasonable searches or seizures set out at s. 8 of the Charter . [ 46 ] The appellants argued before the trial judge that she should ignore the information provided by the police source since neither his criminal record nor his motives had been verified, no general description of the source had been provided to the judge who issued the warrant and the ITO contains no indication of how the source obtained his information.

They alleged that it was particularly important to verify the motives of the police source in this case because, they argued, the testimony offered by the source (Robin Thibault) at the preliminary inquiry revealed that he had acted out of vengeance towards the O’Reillys. [ 47 ] The appellants submitted that the surveillance carried out on September 20, 2006, could not corroborate the source’s information.

Indeed, they emphasized that there was nothing inherently suspicious about cardboard boxes being transferred to a trailer- truck with Nova Scotia plates; that if the SQ had been diligent, it would have discovered that Alouette had legitimate commercial activities in Nova Scotia.

Moreover, the allegation that other vehicles were used for counter-surveillance while the boxes were being transferred into the trailer-truck was a simple inference by the affiant and, in the absence of a statement in the ITO that this was a belief and not a fact, this allegation was likely to mislead the judge who issued the warrant. [ 48 ] In R. v.

Campbell , [18] the Supreme Court of Canada summarized as follows the role of a judge reviewing a search or seizure warrant: […] The question for a reviewing court is “not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence” to permit an issuing justice to authorize the warrant ( Morelli , [2010 SCC 8 , [2010] 1 S.C.R. 253,] at para. 40). In conducting this analysis, the reviewing court must exclude erroneous information from the ITO and may have reference to material properly received as “amplification” evidence ( R. v.

Araujo , 2000 SCC 65 , [2000] 2 S.C.R. 992, at para. 58 ; Morelli , at para. 41 ). The accused bears the burden of demonstrating that the ITO is insufficient ( Quebec (Attorney General) v. Laroche ,

2002 SCC 72 , [2002] 3 S.C.R. 708, at para. 68 ; Morelli , at para. 131 ). [ 49 ] In the present case, after a hearing that lasted several days, the judge dismissed the application on May 5, 2011.

She acknowledged that the ITO was deficient in two respects – it lacked a general description of the police source and the way in which he obtained his information. [19] On the other hand, the judge was of the view that the police surveillance conducted on September 20, 2006, was sufficient to corroborate the information provided by the source, and thus mitigated these deficiencies. [20] She further concluded that there was no evidence that the police officer who had sworn the ITO had deliberately omitted facts in order to make it more favourable. [21] [ 50 ] On appeal, the appellants revisit the grounds raised before the trial judge.

They submit that the trial judge’s conclusion that the ITO was deficient with respect to a general description of the source and the way in which he came to possess his information should have led to the exclusion of all the information he provided, leaving only the police surveillance conducted on September 20, 2006, which, alone, was insufficient to justify the order granting access to the call records. [ 51 ] They add that the failure to provide a general description of the source or to verify his motives is particularly troubling given that the record reveals that he owed considerable sums of money to the O’Reillys which, had this been revealed to the judge who issued the warrant, could have called into doubt the authenticity of his information. [ 52 ] An appeal from a decision made by the reviewing judge is not a new review.

The reviewing judge’s decision cannot be set aside unless it is demonstrated that it is based on an overriding error of law or of principle, on the failure to consider relevant evidence, or a palpable and overriding misapprehension of the evidence. [22] Is this the case here? [ 53 ] The police must verify the reliability of a source before requesting a warrant based on information provided by that source. This is precisely what was done here. Indeed, the SQ conducted surveillance operations in order to establish whether the source’s allegations could be supported.

The surveillance of September 20, 2006, indicated suspicious activity that tended to confirm what the source had reported: the use of a cube truck, the loading of boxes from the garage of a residence (from which it can reasonably be inferred that this was a stash), the loading and unloading conducted with surveillance and counter-surveillance (both of which support the reasonable inference of illegal activity), the loading box-to-box into a trailer-truck from Nova Scotia (an unusual loading method), etc. [ 54 ] The reviewing judge concluded that the information obtained from the police surveillance was satisfactory to corroborate the source and provided a certain degree of reliability to the information he had supplied.

She was of the opinion that there were numerous facts, supported by objective evidence, which allowed the authorizing judge to conclude that there were grounds to suspect criminal conduct. I see no error in this conclusion that would justify the intervention of the Court under the applicable standard of review. [ 55 ] As for the appellants’ allegation that the source was motivated by revenge, it has little relevance here. It would be naïve to believe that the motives of all police sources are altruistic.

On the contrary, their motives are often based on less flattering factors such as greed, vengeance or jealousy. Although these motives may be taken into account in evaluating the reliability of a police source, they are not decisive where, as here, the information provided is validated by an active police investigation. As Justice Tourigny underlined in Bâtiments Fafard inc. c. R. : [23] [ translation ] I am not convinced that the motives of spontaneous informants are the purest. But, in the absence of purity, information obtained should not necessarily be set aside if it otherwise meets the relevant standards.

SECOND GROUND OF APPEAL: THE EXCLUSION OF THE EVIDENCE OBTAINED PURSUANT TO THE EXECUTION OF WARRANTS FOR THE CALL RECORDS OF SERGE PERRON, GÉRALD O’REILLY AND FELICITAS O’REILLY (MAY 25, 2011, JUDGMENT REGARDING VOIR DIRE #4) [ 56 ] On October 13, 2006, the SQ sought and obtained from Judge Jean-Pierre Boyer of the Court of Quebec, three warrants requiring telecommunications service providers to provide access to the call records of various phones linked to Serge Perron, Gérald O’Reilly and Felicitas O’Reilly between July 13 and October 11, 2006. [ 57 ] The warrants were issued pursuant to s. 492.2(2) of the Criminal Code , as it was then drafted, the text of which is reproduced at paragraph [35] of these reasons.

The standard for issuing such warrants, the applicable legal principles and the respective roles of both the reviewing judge and this Court on appeal have already been reviewed. [ 58 ] In addition to the facts previously set out in the September 28, 2006, ITO to access Louis Moreau’s phone records (see paragraphs [41] to [44] of these reasons), the SQ relied on additional facts to convince Judge Boyer to issue the warrant. [ 59 ] Indeed, the Royal Bank of Canada’s voluntary disclosure to the SQ established that Serge Perron – who had a criminal record including violence, fraud and theft – had deposited large sums – $1,829,217 between February 1 and May 15, 2006 – at the bank’s St- Constant branch.

Serge Perron is linked to the company Tabac Tabec Inc. (“Tabac Tabec”) which, though it held Quebec permits for tobacco products, progressively reduced its tax remittances from $147,368 in 2002 to $7,012 in 2005. [ 60 ] In addition, during surveillance conducted on September 28, 2006, the SQ again observed Louis Moreau loading boxes at the residence located on Kirkwood Street in Beaconsfield. He loaded the boxes and then, ultimately, reloaded them in a trailer-truck bearing Nova Scotia plates. The trailer-truck was followed by various police forces on its entire journey to Nova Scotia.

The Royal Canadian Mounted Police (“RCMP”) observed the unloading of similar boxes from the trailer-truck at Lunds Self Storage in Nova Scotia, where a vehicle registered to appellant Phillips was also observed during the unloading. [ 61 ] Finally, on September 30, 2006, the police observed Louis Moreau arriving at a restaurant in New Brunswick where a large box, the size of a washing machine, was exchanged for a small box.

[ 62 ] On May 4, 2011, the appellants presented the trial judge with an application to exclude the evidence obtained pursuant to these warrants, invoking s. 8 of the Charter . They argued the absence of a link between Tabac Tabec and the O’Reilly couple, the absence of information establishing that the contraband cigarettes came from Tabac Tabec and the confusion between companies with names similar to Tabac Tabec.

They also reiterated the protests they had made in their application to exclude the evidence obtained pursuant to the warrant giving access to Louis Moreau’s call records that the judge dismissed on May 5, 2011. [ 63 ] Evidence was heard with respect to this application, which was ultimately dismissed in a judgment issued May 25, 2011. [ 64 ] As she had in her May 5, 2011, judgment, the judge acknowledged that the ITO was deficient with respect to the reliability of the source, but she reiterated that police surveillance mitigated these deficiencies. [24] She added that there was no evidence of bad faith on the part of the police officer who had subscribed to the ITO nor any evidence of an attempt to mislead Judge Boyer who had issued the warrant. [25] The judge closed her analysis with the following: [26] [ translation ] [22] At this stage, evidence of the links does not have to be conclusive.

The information provided by the source, combined with the results of surveillance, the voluntary disclosure regarding Serge Perron, Tabac Tabec’s decreasing tax remittances despite continuing activity, the relationship with Alouette, the vehicles present, and the telephone numbers not only constitute reasonable grounds to suspect illegal activity, but also allowed the justice of the peace to issue the authorizations. [ 65 ] The appellants submit on appeal that the SQ misled Judge Boyer by implying that there was an established link between Serge Perron and the O’Reilly couple.

They advance that diligent investigation would have established that Gérald O’Reilly was the owner of Tabec Wholesale Limited, which held a licence for cigarette sales in Nova Scotia, and had this information been obtained, it would have avoided an association with Tabac Tabec. [ 66 ] However, it appears that this corporation, Tabec Wholesale Limited, had never remitted taxes in Nova Scotia, a fact which would also have been revealed had the SQ made the additional investigations the appellants suggest it should have carried out.

As a result, these investigations, had they been carried out, would not have had any impact on Judge Boyer’s decision. In addition, as I have already mentioned, the “reasonable grounds to suspect” standard does not require police to conduct investigations to rule out exculpatory circumstances that may apply to the targeted individuals. [ 67 ] The appellants add that the voir dire had determined that police surveillance had not established the presence of Louis Moreau at premises related to Tabac Tabec, contrary to what had been stated in the ITOs.

As the ITOs erroneously indicated that his presence had been established, the appellants submit that this is sufficient to overturn the presumed validity of the challenged warrants. [ 68 ] First, I note that the trial judge concluded that “[ translation ] there is no evidence of bad faith or of an attempt to mislead the justice of the peace […]”. [27] In addition, if the allegations regarding Louis Moreau’s presence at premises linked to Tabac Tabec are excluded from the ITO, there are still more than enough objective facts to justify the warrants.

Indeed, the Royal Bank of Canada’s voluntary disclosure of Perron’s significant bank deposits, the links between the latter and Tabac Tabec, and the source’s indication that Moreau transported Tabec-brand contraband cigarettes were more than sufficient. When issuing warrants for access to call records, it suffices that objective facts are presented demonstrating that the police have reasonable grounds to suspect a link between the targeted individuals and the criminal offences in question, even if these facts are later proven to be wrong.

It suffices that the police sincerely and reasonably believe these facts to be true. [ 69 ] In the present case, in light of the applicable standard of review, the appellants have failed to demonstrate an error on the part of the judge that would justify the intervention of this Court.

THIRD GROUND OF APPEAL: THE EXCLUSION OF THE EVIDENCE OBTAINED PURSUANT TO A GENERAL WARRANT AUTHORIZING SURREPTITIOUS ENTRY TO LUNDS SELF STORAGE IN NOVA SCOTIA (DECEMBER 16, 2011, JUDGMENT REGARDING VOIR DIRE #5) [ 70 ] On October 16, 2006, in the context of a separate and independent RCMP investigation regarding the traffic of contraband cigarettes in Nova Scotia implicating appellant Phillips and others, Judge Brian D.

Williston of the Provincial Court of Nova Scotia, issued a general warrant pursuant to s. 487.01 of the Criminal Code authorizing the RCMP to surreptitiously enter units #19 and #29 at Lunds Self Storage, located at 645 Keltic Drive, Coxheath, Nova Scotia, in order to conduct surveillance and to take small samples of the contraband tobacco that could be found there. [ 71 ]

Section 487.01 of the Criminal Code is one of a series of provisions concerning judicial authorizations adopted in 1993. This

section was incorporated into the Criminal Code in response to R. v. Wong [28] in which the Supreme Court of Canada concluded that police video surveillance of activity within a hotel room violated a reasonable expectation of privacy and therefore required prior judicial authorization pursuant to a valid legislative provision. The legislative response, in the form of s. 487.01, went beyond video surveillance. The purpose of the

section is to provide a means for obtaining judicial authorization for all types of investigative techniques and procedures not otherwise contemplated by the Criminal Code . It empowers judges to authorize the police to use a device,investigative technique or procedure or to do anything described in the warrant that would, but for the judicial authorization, constitute an unreasonable search or seizure:

487.01

(1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in

section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if (

a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing; (

b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and (

c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done. 487.01

(1) Un juge de la cour provinciale, un juge de la cour supérieure de juridiction criminelle ou un juge au sens de l’article 552 peut décerner un mandat par écrit autorisant un agent de la paix, sous réserve du présent article, à utiliser un dispositif ou une technique ou une méthode d’enquête, ou à accomplir tout acte qui y est mentionné, qui constituerait sans cette autorisation une fouille, une perquisition ou une saisie abusive à l’égard d’une personne ou d’un bien :

a) si le juge est convaincu, à la suite d’une dénonciation par écrit faite sous serment, qu’il existe des motifs raisonnables de croire qu’une infraction à la présente loi ou à toute autre loi fédérale a été ou sera commise et que des renseignements relatifs à l’infraction seront obtenus grâce à une telle utilisation ou à l’accomplissement d’un tel acte;

b) s’il est convaincu que la délivrance du mandat servirait au mieux l’administration de la justice;

c) s’il n’y a aucune disposition dans la présente loi ou toute autre loi fédérale qui prévoie un mandat, une autorisation ou une ordonnance permettant une telle utilisation ou l’accomplissement d’un tel acte. [ 72 ] Surreptitious entry in a storage building is an investigative technique that requires authorization pursuant to this section. [29] The standard for issuing such an authorization is that of a “reasonable grounds to believe”, a more exacting standard than that of a “reasonable grounds to suspect” which I have been discussing in these reasons up to this point.

The judge who issues a general warrant must, notably, be convinced by the ITO of the existence of reasonable grounds to believe that an offence has been or will be committed and that the investigative technique for which authorization is sought will allow to obtain information related to this offence. The general warrant must also set out the conditions the judge considers advisable to ensure that the search or seizure is reasonable in the circumstances. [30] [ 73 ] In the present case, the evidence obtained pursuant to the warrant established the presence of contraband cigarettes.

On November 22, 2011, appellant Phillips submitted an application for the exclusion of this evidence based on s. 8 of the Charter (voir dire #5) relying on (

a) the insufficiency and weakness of the reasonable grounds to believe that an offence had been or would be committed (notably errors and omissions in the ITO); and (

b) the insufficiency of the description of the alleged offence in the ITO and the absence of an investigation or of evidence respecting the exceptions set out in s. 32 of the Excise Act, 2001 . [31] [ 74 ] The judge dismissed the application in a judgment issued December 16, 2011. [ 75 ] Appellant Phillips now appeals this judgment, but relies in appeal only on the arguments based on the exceptions set out in s. 32 of the Excise Act, 2001 . [ 76 ] The alleged offence is described as follows in the ITO: The informant says that he has reasonable grounds to believe and does believe that a certain offence to wit: conspiracy to possess and sell manufactured tobacco in the form of cigarettes, not stamped in accordance with the Excise Act 2001 , and the regulations thereunder contrary to

Section 32 of the Excise Act 2001, and therefore committing an offence under section 465(1) (

c) of the Criminal Code ; between the 13 th day of March, 2006 and the 17 th day of October, 2006 at or near, Coxheath in the Cape Breton Regional Municipality, Province of Nova Scotia elsewhere in the Province of Nova Scotia and elsewhere in Canada has been committed by Alexander David PHILLIPS, Blair Fraser MACKEIGAN, Sharon Dawn MACRURY and others unknown, and that the reasonable grounds in support of the application are the following: […] [ 77 ] Section 32(1) of the Excise Act, 2001 prohibits selling, offering to sell or possessing an unstamped tobacco product.

In contrast, ss. 32(2) and (3) of that legislation set out circumstances in which these prohibitions do not apply, for example, when the tobacco is stored in an excise warehouse or in a duty-free shop. [ 78 ] Appellant Phillips submits that in order to obtain a general warrant, the affiant who alleges an offence under s. 32 of the Excise Act, 2001 must ensure that the exceptions set out at ss. 32(2) and (3) do not apply, otherwise the warrant will be invalid.

He submits that the police must first verify with government organizations and regulatory agencies whether the person targeted by the warrant holds the required permits or falls into one of the exceptions set out in the legislation.

Given that the ITO does not establish that such verifications were made, he concludes that the warrant should be invalidated so as to avoid an injustice and in order to maintain the confidence of the public in the administration of justice. [ 79 ] The trial judge dismissed these submissions on the basis that the description of the offence in a search warrant must provide sufficient information regarding the nature of the offence and the purpose of the search, without necessarily having to specify whether an

exception, excuse or justification may be raised with respect to the offence. [32] Was she correct in so holding? [ 80 ] A general warrant is an investigative tool. [33] At this stage, the description of the offence the police have reasonable grounds to believe has been or will be committed must be sufficiently precise to allow the judge to whom the application is presented, and later the reviewing judge if need be, to determine whether the conditions set out in s. 487.01 of the Criminal Code have been met.

To this end, the requirements with respect to the specificity of the alleged offence are flexible. [ 81 ] As this Court set out in Boulianne c. R. : [34] [ translation ] The motion for certiorari , and the grounds of appeal, are based on the insufficiency of the information which, it is alleged, did not explicitly allege the

section of the Criminal Code relating to fraud or the fact that fraud is a crime in the United States, the place where the offence was supposed to have been committed. They point to the insufficiency of the description of the items to be seized, alleging that, as they are drafted, the ITOs and the seizure warrants constitute a fishing expedition. First, it is appropriate to highlight the distinction between an ITO for a seizure warrant and an indictment alleging the commission of the offence. The precision required of the former is, obviously, more permissive than that of the latter. […] Mentioning the

section of the Criminal Code which sets out the substantive offence is not an essential element, and its absence is not decisive, insofar as the nature of the offence, fraud, is clearly described […]. [Emphasis added; internal references omitted] [ 82 ] In the same vein, in Lahei et al. v. Attorney General of Canada et al. , [35] the Court of Appeal for Ontario did not accept the argument that an ITO sworn to obtain a search warrant with respect to offences under the Radiocommunication Act , [36] had to describe a legal debate with respect to the inclusion of foreign signal decoding in the offences set out at ss. 9(1)(

c) and 10(1)(

b) of that legislation. Similarly, in R. v. Yorke , [37] the Court of Appeal for Nova Scotia rejected the argument that the requirements set out in s. 37 of the Cultural Property Export and Import Act , [38] must be reproduced in an ITO for a search warrant: While it is true that the information to obtain the warrant made no reference to any of these requirements, it is not necessary at the investigative stage for the informant to prove or provide evidence of each of the elements of an offence.

Since the specific statute was referred to in the information, it was possible for the justice of the peace to refer to the Act to determine how “foreign cultural property” was defined and to then review the information to satisfy himself that there were reasonable and probable grounds that an offence under that Act had been committed. [Emphasis added] [ 83 ] In the present case, the offence alleged in the ITO is clear and it was unnecessary to reproduce s. 32 of the Excise Act, 2001 in its entirety to draw the attention of the issuing judge to the exceptions set out therein.

The issuing judge could easily obtain the wording of the provision, even if it had not been reproduced in the ITO. [ 84 ] Neither can I accept appellant Phillip’s argument that, in the present case , the RCMP was required to undertake prior verification of these exceptions and to communicate the results of its verification in the ITO. [ 85 ] Depending on the circumstances, it may be that such prior verification is necessary to support reasonable grounds to believe that an offence under s. 32 of the Excise Act, 2001 has been or will be committed.

It follows that if the authorization required by s. 487.01 of the Criminal Code targets a tobacco merchant who sells his wares in a duty-free shop, it would probably be necessary to verify whether that merchant holds the required permits before concluding to the existence of reasonable grounds to believe that an offence has been committed in contravention of s. 32 of the Excise Act, 2001 . [ 86 ] However, this is clearly not the case here.

Indeed, the ITO indicates that, in January 2006, a reliable and credible source informed the RCMP that one “Alex Phillips” was engaged in significant trafficking of contraband cigarettes coming from outside of the province and that he supplied a reseller on the Eskasoni First Nation Reserve named Wilfred Gould. Through its investigations, the RCMP confirmed the latter was selling cigarettes and that these cigarettes were supplied by someone near Marion Bridge, where appellant David Alexander Phillips resided.

A second reliable source confirmed that another reseller was being supplied with contraband cigarettes by a vehicle that the RCMP was able to link to appellant Phillips.

In addition, the trailer-truck observed by the RCMP on September 28 and 29, 2006 at the request of the SQ (who believed it contained contraband cigarettes coming from Montreal) unloaded boxes at Lunds Self Storage in the presence of individuals who arrived by car, one of which was registered in the name of appellant Phillips. [ 87 ] In these circumstances, the RCMP was not required to rule out the possible application of the exceptions set out at ss. 32(2) and (3) of the Excise Act, 2001 in order to conclude that there were reasonable grounds to believe that an offence had been or would be committed in contravention of s. 32 .

FOURTH GROUND OF APPEAL: THE ALLEGED REFUSAL TO HOLD VOIR DIRES REGARDING THE VALIDITY OF SEARCHES AND SEIZURES UNDERTAKEN PURSUANT TO VARIOUS GENERAL WARRANTS, PRODUCTION ORDERS AND WIRETAP AUTHORIZATIONS (JANUARY 17 AND 19, FEBRUARY 13 AND MARCH 30, 2012, JUDGMENTS REGARDING VOIR DIRES #6, 8, 10 AND 11) (

a) The January 17, 2012, Judgment regarding Voir Dire #6

[ 88 ] Between October 30 and November 30, 2006, the SQ sought and obtained from Judge Jean-Pierre Boyer of the Court of Quebec, several general warrants pursuant to s. 487.01 of the Criminal Code in order to surreptitiously enter 93 Kirkwood in Beaconsfield (where the garage was being used as a storage unit for suspicious boxes) and to install surveillance equipment there, to install surveillance equipment in the cube truck used by Moreau to transport the boxes, to surreptitiously enter the warehouse, buildings and parking lot at 8505-8550 Delmeade, TMR – properties linked to the O’Reilly couple or their businesses - and to install surveillance equipment there.

The ITOs sworn to obtain these warrants set out the following: (

a) evidence uncovered by the investigation, such as that already described in the prior ITOs for the production orders regarding the call records of Moreau, Perron and the O’Reillys; (

b) new police surveillance which brought to light a meeting between O’Reilly and Phillips in Montreal on October 12, 2006; and (

c) the results of the general warrant issued in Nova Scotia which allowed surreptitious entry at Lunds Self Storage, linked to Phillips, and which had confirmed that contraband tobacco was found there. [ 89 ] In an application dated January 6, 2012 (application for voir dire #6), the appellants requested that the trial judge exclude the evidence obtained pursuant to these warrants, invoking s. 8 of the Charter .

They raised essentially the same grounds that had been dismissed by the judge in her judgments issued with respect to their previous applications; they also added grounds challenging the general warrant issued in Nova Scotia which confirmed the presence of contraband tobacco products at Lunds Self Storage. [ 90 ] The prosecution opposed the voir dire, arguing that it would be redundant in light of the prior applications.

The prosecution also submitted that in light of the facts set out in the ITOs, there was no reason to conclude that the warrants were invalid and that, as a result, the application to exclude the evidence obtained pursuant to these warrants should be dismissed. [ 91 ] In a judgment issued January 17, 2012, the judge observed that most of the grounds raised by the accused had been addressed in her previous judgments. She acknowledged that some of these judgments dealt with warrants subject to the standard of a “reasonable grounds to suspect” rather than the higher standard of a “reasonable grounds to believe”.

Nevertheless, she concluded that it was not because the facts meet a lower standard that they did not also meet a more rigorous standard. [ 92 ] With respect to the new grounds, the judge observed that these primarily sought the exclusion of the evidence obtained pursuant to the general warrant issued in Nova Scotia. Yet, this warrant had been found to be valid in her December 16, 2011, judgment.

She concluded her analysis as follows: [ translation ] [39] The affidavit as a whole, combined with the result of Nova Scotia warrant, allowed the judge to issue the warrants. [40] In the present case, there is no reason to hold a voir dire regarding the merits of the application, the applicants having failed to demonstrate a reasonable likelihood that hearing the application would impact the admissibility of the contested evidence. [41] As a result, the application for a voir dire is dismissed and it follows that there is no violation of s. 8 of the Charter because the issuing judge had ample reason to issue the authorizations and, consequently, the application for the exclusion of evidence is dismissed. (

b) January 19, 2012, Judgment regarding the Application for Voir Dire #8 [ 93 ] On March 12 and April 12, 2007, the SQ sought and obtained three general warrants pursuant to s. 487.01 of the Criminal Code in order to obtain, from a variety of financial institutions, ongoing information with respect to transactions in various accounts linked to Les Systèmes Ascot IV Ltd. (“Ascot”), itself linked to Felicitas O’Reilly. On February 27 and March 21, 2007, the SQ also sought and obtained three production orders pursuant to s. 487.012 of the Criminal Code , which, inter alia , provided the following as it was then drafted:

487.012

(1) A justice or judge may order a person, other than a person under investigation for an offence referred to in paragraph (3)(a), (

a) to produce documents, or copies of them certified by affidavit to be true copies, or to produce data; or (

b) to prepare a document based on documents or data already in existence and produce it.

(2) The order shall require the documents or data to be produced within the time, at the place and in the form specified and given (

a) to a peace officer named in the order; or (

b) to a public officer named in the order, who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament.

(3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to believe that (

a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed; (

b) the documents or data will afford evidence respecting the commission of the offence; and (

c) the person who is subject to the order has possession or control of the documents or data.

(4) The order may contain any terms and conditions that the justice or judge considers advisable in the circumstances, including terms and conditions to protect a privileged communication between a lawyer and their client or, in the province of Quebec, between a lawyer or a notary and their client. […] 487.012

(1) Sauf si elle fait l’objet d’une enquête relative à l’infraction visée à l’alinéa (3) a ), un juge de paix ou un juge peut ordonner à une personne :

a) de communiquer des documents — originaux ou copies certifiées conformes par affidavit — ou des données;

b) de préparer un document à partir de documents ou données existants et de le communiquer.

(2) L’ordonnance précise le moment, le lieu et la forme de la communication ainsi que la personne à qui elle est faite — agent de la paix ou fonctionnaire public nommé ou désigné pour l’application ou l’exécution d’une loi fédérale ou provinciale et chargé notamment de faire observer la présente loi ou toute autre loi fédérale.

(3) Le juge de paix ou le juge ne rend l’ordonnance que s’il est convaincu, à la suite d’une dénonciation par écrit faite sous serment et présentée ex parte , qu’il existe des motifs raisonnables de croire que les conditions suivantes sont réunies :

a) une infraction à la présente loi ou à toute autre loi fédérale a été ou est présumée avoir été commise;

b) les documents ou données fourniront une preuve touchant la perpétration de l’infraction;

c) les documents ou données sont en la possession de la personne en cause ou à sa disposition.

(4) L’ordonnance peut être assortie des conditions que le juge de paix ou le juge estime indiquées, notamment pour protéger les communications privilégiées entre l’avocat — et, dans la province de Québec, le notaire — et son client. […] [ 94 ] In addition to the information already described, the ITOs included the following: (

a) the source had informed the SQ that the $20 bills resulting from the sale of contraband tobacco were laundered by the O’Reillys in ATMs located in banks throughout the Montreal area and stocked by one of their employees; (

b) surveillance operations and physical verifications confirmed that these ATMs existed and that they were being stocked by an individual linked to the O’Reillys; (

c) data found in Alouette’s computers during a surreptitious entry conducted pursuant to a general warrant showed that it was the Ascot corporation that operated the ATMs; and (

d) a surreptitious entry at 93 Kirkwood, Beaconsfield – a residence linked to Gérald O’Reilly – pursuant to a general warrant confirmed the presence of contraband cigarettes there. [ 95 ] In January 2012, the appellants submitted to the trial judge an application (application for voir dire #8) under s. 8 of the Charter to exclude the evidence obtained pursuant to these warrants and orders.

They again raised the same arguments made in their previous applications, albeit in a different fashion and with certain precisions. [ 96 ] In her judgment issued from the bench on January 19, 2012, the judge was of the view that the ITOs were sufficiently grounded in fact to allow the judge to issue the warrants and orders. She concluded her analysis as follows: [ translation ]

[33] As I have mentioned, the task as I see it, is not to determine whether the judge would have acted differently, but rather whether he had before him evidence that met the prerequisite requirements for issuing the authorizations. [34] In the present case, I conclude that he did have this evidence, that a hearing on the new arguments – be it through witnesses or otherwise – does not raise a reasonable likelihood that the challenged evidence will be affected and, consequently, I will not authorize the holding of a voir dire for the reasons I have set out regarding the burden with the Wilson decision and the VD-8 application is dismissed. (

c) The February 13, 2012, Judgment regarding the Application for Voir Dire #10 [ 97 ] On May 18, 2007, the SQ sought and obtained a production order pursuant to s. 487.012 of the Criminal Code , as it was then drafted and which is reproduced at paragraph [93] of these reasons, which allowed it to obtain information from the Quebec tax authority for the numbered company 9177-3820 Québec Inc.

On May 29, 2007, the SQ sought and obtained a new general warrant pursuant to s. 487.01 of the Criminal Code in order to surreptitiously enter 8505 Delmeade, TMR (a commercial building linked to the O’Reilly couple), so as to copy documents and to conduct video surveillance. [ 98 ] In addition to the facts already described, the ITOs set out numerous additional facts uncovered in the execution of previously issued general warrants, during the numerous new surveillance operations being carried out by the SQ and the RCMP, and through further clarifications provided by the police source.

The facts set out therein confirm the volume of the traffic contraband cigarettes between Quebec and Nova Scotia and the laundering of the proceeds of crime resulting from that traffic. The facts set out in the ITOs are frankly overwhelming. The source provided the SQ with further information regarding bank fraud conducted by Felicitas O’Reilly with the help of a lawyer-accountant and implicating 9177-3820 Québec Inc.

A CIDREQ query linked this corporation to Felicitas O’Reilly. [ 99 ] In an application dated February 6, 2012, Gérald and Felicitas O’Reilly requested that the trial judge exclude the evidence obtained pursuant to the production order and the general warrant, relying on s. 8 of the Charter .

Again they raised multiple grounds that had already been dismissed by the trial judge, all the while submitting that the facts relied upon in the ITOs were lacking and, in some cases, false or misleading. [ 100 ] In her February 13, 2012, judgment, the judge concluded that the ITOs more than met the requirements of s. 487.01 and s. 487.012 of the Criminal Code . She held that it was unnecessary to hold a voir dire and dismissed the application for the exclusion of the evidence. [39] (

d) March 30, 2012, Judgment regarding the Application for Voir Dire #11 [ 101 ] On July 11, 2007, the SQ sought and obtained a general warrant pursuant to s. 487.01 of the Criminal Code authorizing the surveillance of the ATMs located at 4505 Hickmore and 1700 Trans-Canada Highway, linked to Ascot, using a television camera or other electronics means. [ 102 ] The same day, the SQ sought and obtained a wiretap authorization targeting 18 individuals, including the appellants. This warrant was issued pursuant to

Part VI of the Criminal Code which establishes a comprehensive regime governing the use of different forms of electronic surveillance. This regime was put in place largely as a result of various judicial decisions dealing with s. 8 of the Charter . Strict requirements apply in order to protect the right to privacy. [40] To this end, ss. 185(1) and (1.1) as well as ss. 186(1) and (1.1) of the Criminal Code provide for the following: 185

(1) An application for an authorization to be given under

section 186 shall be made ex parte and in writing to a judge of a superior court of criminal jurisdiction or a judge as defined in

section 552 and shall be signed by the Attorney General of the province in which the application is made or the Minister of Public Safety and Emergency Preparedness or an agent specially designated in writing for the purposes of this

section by […], […] and shall be accompanied by an affidavit, which may be sworn on the information and belief of a peace officer or public officer deposing to the following matters: (

c) the facts relied on to justify the belief that an authorization should be given together with particulars of the offence, (

d) the type of private communication proposed to be intercepted, (

e) the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence, a general description of the nature and location of the place, if known, at which private communications are proposed to be intercepted and a general description of the 185

(1) Pour l’obtention d’une autorisation visée à l’article 186, une demande est présentée ex parte et par écrit à un juge d’une cour supérieure de juridiction criminelle, ou à un juge au sens de l’article 552, et est signée par le procureur général de la province ou par le ministre de la Sécurité publique et de la Protection civile ou par un mandataire spécialement désigné par écrit pour l’application du présent

article […]; […] il doit y être joint un affidavit d’un agent de la paix ou d’un fonctionnaire public pouvant être fait sur la foi de renseignements tenus pour véridiques et indiquant ce qui suit :

c) les faits sur lesquels le déclarant se fonde pour justifier qu’à son avis il y a lieu d’accorder une autorisation, ainsi que les détails relatifs à l’infraction;

d) le genre de communication privée que l’on se propose d’intercepter;

e) les noms, adresses et professions, s’ils sont connus, de toutes les personnes dont les communications privées devraient être interceptées du fait qu’on a des motifs raisonnables de croire que cette interception pourra être utile à l’enquête relative à l’infraction et une description générale de la nature et de la situation du lieu, s’il est connu,

manner of interception proposed to be used, (

f) the number of instances, if any, on which an application has been made under this

section in relation to the offence and a person named in the affidavit pursuant to paragraph (

e) and on which the application was withdrawn or no authorization was given, the date on which each application was made and the name of the judge to whom each application was made, (

g) the period for which the authorization is requested, and (

h) whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or that the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

(1.1) Notwithstanding paragraph (1)( h ), that paragraph does not apply where the application for an authorization is in relation to […] (

b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; […] 186

(1) An authorization under this

section may be given if the judge to whom the application is made is satisfied (

a) that it would be in the best interests of the administration of justice to do so; and (

b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

(1.1) Notwithstanding paragraph (1)( b ), that paragraph does not apply where the judge is satisfied that the application for an authorization is in relation to […] (

b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; […] où l’on se propose d’intercepter des communications privées et une description générale de la façon dont on se propose de procéder à cette interception;

f) le nombre de cas, s’il y a lieu, où une demande a été faite en vertu du présent

article au sujet de l’infraction ou de la personne nommée dans l’affidavit conformément à l’alinéa e) et où la demande a été retirée ou aucune autorisation n’a été accordée, la date de chacune de ces demandes et le nom du juge auquel chacune a été présentée;

g) la période pour laquelle l’autorisation est demandée;

h) si d’autres méthodes d’enquête ont ou non été essayées, si elles ont ou non échoué, ou pourquoi elles paraissent avoir peu de chance de succès, ou si, étant donné l’urgence de l’affaire, il ne serait pas pratique de mener l’enquête relative à l’infraction en n’utilisant que les autres méthodes d’enquête.

(1.1) L’alinéa (1)

h) ne s’applique pas dans les cas où l’autorisation demandée vise : […]

b) une infraction commise au profit ou sous la direction d’une organisation criminelle, ou en association avec elle; […] 186(1) Une autorisation visée au présent

article peut être donnée si le juge auquel la demande est présentée est convaincu que :

a) d’une part, l’octroi de cette autorisation servirait au mieux l’administration de la justice;

b) d’autre part, d’autres méthodes d’enquête ont été essayées et ont échoué, ou ont peu de chance de succès, ou que l’urgence de l’affaire est telle qu’il ne serait pas pratique de mener l’enquête relative à l’infraction en n’utilisant que les autres méthodes d’enquête.

(1.1) L’alinéa (1)

b) ne s’applique pas dans les cas où le juge est convaincu que l’autorisation demandée vise : […]

b) une infraction commise au profit ou sous la direction d’une organisation criminelle, ou en association avec elle; […] [ 103 ] The ITOs sworn to obtain these warrants span more than 170 pages. Numerous facts uncovered during the investigation are there set out, and are so abundant that it would be tedious to relate them all here.

Suffice it to state that these facts clearly establish the existence of a traffic of contraband cigarettes in which each of the appellants participated, as well as the laundering of the proceeds of this contraband. [ 104 ] In early March 2012, the appellants [41] sought the exclusion of the evidence obtained pursuant to these warrants, raising s. 8 of the Charter . They submitted that the ITOs contained false or misleading information. They also questioned whether the warrants were necessary for the investigation. The trial judge summarized the appellants’ arguments as follows: [42] [ translation ]

− They make a general argument that there were no reasonable and probable grounds for believing that offences had been or would be committed.

They also allege that the affiant deliberately made misleading assertions, that a wiretap was unnecessary and that there was no criminal organization in the sense of s. 467.1(1) Cr.C . ; − More specifically, it is submitted that deficiencies in the previous ITOs should be given greater weight in the context of wiretapping; − The person subscribing to the ITOs failed to provide full and frank disclosure by including false information with respect to the amount of unpaid taxes and an incorrect number of cigarette cartons; − The absence of information regarding the motives of police source A, thus weakening the source’s reliability; − The failure to contextualize certain allegations, thereby misleading the justice of the peace by, among other things, giving an incomplete picture of the amount of tobacco taxes that had not been paid; − Finally, the absence of a true link between Serge Perron, Gérald O’Reilly, Felicitas O’Reilly and the company Tabac Tabec Inc . [ 105 ] The judge issued her judgment from the bench on March 30, 2012.

She held that the observations made during the surreptitious entries at 93 Kirkwood in Beaconsfield demonstrate the presence of a significant quantity of contraband cigarettes, that none of the facts alleged by the appellants support the conclusion that false or misleading statements were deliberately made, and that the information furnished by the source was ultimately reliable. [43] [ 106 ] The judge noted that where a criminal organization is at issue, ss. 186(1.1) of the Criminal Code dispenses with the necessity of establishing that a wiretap is necessary for the investigation.

In her opinion, the ITO contained sufficient information to conclude that a criminal organization was at issue in this case. [44] [ 107 ] Consequently, the judge concluded that the appellants had not demonstrated a reasonable likelihood that holding a voir dire would affect the admissibility of the evidence obtained pursuant to these warrants. She also concluded that the ITOs met all the Criminal Code requirements and were complete, specific and supported the issuance of the judicial authorizations. [45] She therefore dismissed the application for a voir dire and

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