2018 NBCA 70, 2018 NBCA 70

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 92-16-CA SHANE WILLIAMS APPELLANT SHANE WILLIAMS APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Williams v. R., 2018 NBCA 70 CORAM: The Honourable Chief Justice Richard The Honourable Justice Larlee The Honourable Justice Quigg Williams c.

R., 2018 NBCA 70 CORAM : l’honorable juge en chef Richard l’honorable juge Larlee l’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: September 19, 2016 (conviction) December 9, 2016 (sentencing) Appel d’une décision de la Cour du Banc de la Reine : le 19 septembre 2016 (déclaration de culpabilité) le 9 décembre 2016 (détermination de la peine) History of Case: Historique de la cause : Decision under appeal: 2016 NBQB 231 Décision frappée d’appel : 2016 NBBR 231 Preliminary or incidental proceedings: 2015 NBQB 179 Procédures préliminaires ou accessoires : 2015 NBBR 179 Appeal heard: June 26, 2018 Appel entendu : le 26 juin 2018 Judgment rendered: November 1, 2018 Jugement rendu : le 1 novembre 2018

Reasons for judgment: The Honourable Justice Quigg Concurred in by: The Honourable Chief Justice Richard The Honourable Justice Larlee Counsel at hearing: For the appellant: Nathan J.S. Gorham For the respondent: Michael S. Taylor, Q.C. Motifs de jugement : l’honorable juge Quigg Souscrivent aux motifs : l’honorable juge en chef Richard l’honorable juge Larlee Avocats à l'audience : Pour l’appelant : Nathan J.S. Gorham Pour l’intimée : Michael S. Taylor, c.r. THE COURT The appeal is dismissed. LA COUR L’appel est rejeté. The judgment of the Court was delivered by QUIGG, J.A. I.

Introduction [ 1 ] Shane Williams, Joshua Kindred and Anthony Edison were all charged with numerous offences relating to their involvement in a drug trafficking enterprise. Represented by separate defence counsel, Mr. Williams and Mr. Kindred were tried together before a judge of the Court of Queen’s Bench. Mr. Edison, also represented by different counsel, was tried separately before a court composed of a judge and jury.

During the pretrial motions for all three men, all defence counsel applied to exclude judicially authorized intercepted communications from the evidence at trial, arguing the evidence had been obtained in violation of s. 8 of the Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11. Defence counsel also applied for an order pursuant to s. 11(

d) of the Charter to disqualify the trial judge, in each case a puisne judge of the New Brunswick Court of Queen’s Bench, from hearing the Charter challenge. Defence counsel submitted that, since the authorizations to intercept private communications had been issued by the Chief Justice of the Court of Queen’s Bench, the judges were no longer independent. This, they argued, was so because the Judicature Act , R.S.N.B 1973 c.

J-2, allows the Chief Justice to transfer puisne judges, without their consent, to other areas of the province. [ 2 ] The trial judges dismissed the applications, resulting in the admission of the intercepted communications. All three were convicted. All three now appeal. They submit: the trial judges erred in dismissing their applications to examine various witnesses, including the affiant, several non-affiant witnesses, and the designated Crown agents; the trial judges erred in dismissing the applications under

section 11(

d) of the Charter ; and, the trial judges erred by upholding the authorization to intercept. Two of the three seek leave to appeal their sentences. Mr. Williams alleges the trial judge erred by increasing his parole ineligibility, while Mr. Edison

says the trial judge in his case erred in declining to hear a motion concerning abuse of process and imposed an unreasonable sentence not justified in the totality of the circumstances. [ 3 ] The following reasons explain why I would dismiss Mr. Williams’ appeal. II. Background [ 4 ] In order to set out the background against which this appeal must be decided, I borrow liberally from the written submissions of the parties and the trial judge’s decision. It should be noted the parties generally agree with the facts. While the facts in the Williams/Kindred matter are not identical to those in Mr.

Edison’s case, the descriptions of the type of evidence and of investigatory events are common to all cases. [ 5 ] In the fall of 2011, the Royal Canadian Mounted Police (RCMP) began investigating the illegal sale of drugs in the Saint John region.

During the investigation, the RCMP employed various investigative procedures: surveillance, tracking warrants, general warrants, statements from witnesses, statements from confidential informants, and, most importantly, the recruitment of an agent. [ 6 ] By May 2014, police were preparing to apply for an authorization under ss. 185 and 186 of the Criminal Code , R.S.C. 1985, c. C-46 , to intercept private communications. The affiant, Cpl.

Girard, prepared a 464-page Information to Obtain (ITO) and filed it along with the application and a draft authorization in the Court of Queen’s Bench in Moncton on May 12, 2014.

The application was not limited to a request to intercept private communication; the police also sought to intercept communications to which one party consented ( s. 184.2 of the Criminal Code ), a general warrant (s. 487.01 of the Criminal Code ), an assistance order ( s. 487.02 of the Criminal Code ), as well as an order sealing the materials ( s. 187 of the Criminal Code ). [ 7 ] In the ITO, the RCMP targeted seven individuals who, they alleged, were selling drugs in the Saint John area.

To advance the investigation against these targets, the police proposed to enlist the help of an agent who was involved in the drug trade in Saint John and knew many of the targets personally. The agent was the proprietor of an enterprise that sold cellular phones as well as other technological instruments and was prepared to testify at trial.

The affiant explained in the ITO that, if the authorizations were granted, the police would issue Blackberry cellular phones equipped with encryption technology to the agent, who would then sell the phones to the targets under the guise of providing them with secure means for communicating with one another. [ 8 ] The ITO dated May 12, 2014, did not have a jurat . It simply indicated: “Dated at ____ in the Province of New Brunswick, this ____ of May 2014.” A Commissioner of Oaths signed the ITO and affixed her stamp. Cpl. Girard also signed the ITO, and, at the beginning of the document, wrote: “I, Cpl.

Matthieu Girard … hereby MAKE OATH AND SAY AS FOLLOWS: […].” [ 9 ] On May 12, 2014, the Chief Justice of the Court of Queen’s Bench signed the authorization. On the final page of the ITO, para. 604 deals with the duration of the requested authorization. Cpl.

Girard states: It is proposed that this authorization, and related orders and warrants shall be valid for the period not exceeding 60 days, from and including the ____day of May 2014, up to and including the ___ day of July 2014. [ 10 ] When he executed the authorization, the judge inserted a start date of May 15, 2014, and a concluding date of July 14, 2014, a total of 61 days. When Cpl. Girard become aware of this during his return trip from Moncton to Fredericton, he went back to Moncton and explained the situation to an individual in the Clerk’s office.

It was in turn brought to the authorizing judge’s attention and he corrected the ending date to July 13, 2014, and initialled the change. [ 11 ] Once the police had obtained the signed authorization, they distributed the phones through the agent to Mr. Williams, Mr. Kindred and others. The phones were equipped with Pretty Good Privacy (PGP) emailing capability, and encryption software that prevented the interception of electronic mail communications, but all other communication functions, such as telephoning, peer to peer messaging, and text messaging were disabled.

By May 28, 2014, the police began intercepting emails between the targets and the agent.

[ 12 ] On June 6, 2014, Cpl. Girard realized there was a problem with the authorization. The email domain name in the ITO was indicated to be “cryplock.net” but the phones provided to the targets were configured with emails using the domain name “cryp t lock.net” (emphasis added). In other words, because of one missing letter, the police had been intercepting electronic communications between email addresses that were different than those that had been authorized. Cpl. Girard brought the problem to the attention of, among others, his superior, Sgt. Vachon; the lead investigator, Sgt.

Gendre at Covert Intercept Unit at RCMP headquarters in Ottawa; the Crown agents assigned to the file; and Inspector Al Farrah, the team commander. The officers decided to continue with interceptions and to apply for an amendment to the original authorization. [ 13 ] On June 11, 2014, Cpl. Girard attended at the courthouse with an application to amend the original order.

The application explained why other remedial steps were determined to be impractical and requested the May 12, 2014 authorization be amended to permit the interception of email addresses with the domain name of “cryptlock.net.” The Chief Justice of the Court of Queen’s Bench signed the amendment and police continued to intercept emails sent and received between the named parties and the agent. On July 10, 2014, Cpl. Girard applied for a further authorization, which was to be in force for another 60 days.

In support of this application, he included the information from the original authorization as well as an update concerning the progress of the investigation and some of the emails that had been intercepted during the period covered by the original authorization. [ 14 ] During the interception periods, the police obtained both audio and video recordings of the agent’s interactions with Mr. Williams and others. Specifically, they equipped the agent’s rental vehicle with a camera, a listening device and a GPS tracking device.

The police also installed cameras in the agent’s residence: one covering the entrance, and three inside the residence. When the agent met with the targets, he also wore a body pack that audio-recorded his conversations. [ 15 ] In the May 12, 2014 ITO, the affiant did not identify Mr. Kindred as a principal target of the interceptions. Rather, the affiant described Mr. Kindred and many other individuals as “other known persons.” In the July 10, 2014 ITO, Mr.

Kindred was identified as a “principal known person” whose communications “may be intercepted.” After two 60-day periods of interceptions, the police arrested Mr. Williams and Mr. Kindred and charged them with various offences under the Criminal Code , and the Controlled Drugs and Substances Act , S.C. 1996 c. 19 ( CDSA ). They were remanded into custody following their arrests. III. Procedural Background [ 16 ] On June 1, 2015, pre-trial motions began and continued intermittently until February 23, 2016. The central issue, on behalf of Mr. Williams and Mr.

Kindred, was the defence application to exclude electronic communications obtained pursuant to the two judicial authorizations. Specifically, defence counsel argued the first authorization was invalid for a variety of reasons. First, he submitted the ITO was not an affidavit because it lacked a jurat . Since s. 185(1) of the Criminal Code provides the application shall be accompanied by an affidavit, the defence submitted the failure to include a jurat at the conclusion of the ITO meant the application did not comply with the statutory preconditions for a valid authorization.

Furthermore, defence counsel contended the police were not authorized by the first warrant to intercept emails with the domain name “cryptlock.net”; rather, the authorization granted legal authority to intercept “cryplock.net” emails. Defence counsel submitted that, although the error may have been inadvertent, the decision to continue with the interceptions after realizing the error was a serious violation of s. 8 of the Charter sufficient to warrant the exclusion of the evidence.

Counsel added the authority to intercept private communications could not be granted after the fact, and, as a result, the interceptions between May 12, 2014, and June 11, 2014, were obtained in violation of the Charter . [ 17 ] Defence counsel also took the position the applications did not demonstrate the police had tried other investigative procedures that had failed or that other investigative procedures were unlikely to succeed.

The defence argued police had deployed a wide variety of investigative techniques, the most impressive of which was their recruitment of an agent who was willing to consent to the interception of his personal communications with the targeted individuals and to testify in court. The agent had also disclosed to the police substantial evidence implicating the named parties in criminality; this suggested the police had a viable prosecution even without the interception of private communications.

Additionally, the police had the unexplored option of a single- party consent interception pursuant to s. 184.1 of the Criminal Code , whereby the agent could continue collecting evidence against the named parties while the police watched, listened, and recorded conversations. With all of this, defence counsel submitted the investigative necessity precondition under ss. 185 and 186 of the Criminal Code had not been met. [ 18 ] In support of the warrant challenge, defence counsel applied to cross-examine or examine various witnesses:

(1) Cpl. Girard, regarding investigative necessity, the missing jurat , and his actions in relation to the error regarding the domain name;

(2) S/Sgt. Al Farrah and S/Sgt. Al Saad, regarding the circumstances under which the decision was made to continue with interceptions after the error in the domain name had been discovered;

(3) Sgt. Gendre, regarding the significance of the domain name in the process of intercepting the communications;

(4) Sgt. Vachon, concerning the decision to continue with the interceptions after June 6, 2014; (5) and the designated Crown agents, regarding whether they fulfilled their duties as defined by the Ontario Court of Appeal in R. v. Ebanks , 2009 ONCA 851 , [2009] O.J. No. 5168 (QL) .

[ 19 ] Defence counsel also applied for the trial judge to recuse himself on the ground that a puisne judge of the Court of Queen’s Bench was not an “independent tribunal” within the meaning of s. 11(

d) of the Charter . Counsel argued such a judge was not able to review the authorization issued by the Chief Justice of the Court of Queen’s Bench because the Judicature Act confers upon the Chief Justice of that court significant powers over puisne judges. Since these powers include relocating judges to other areas of New Brunswick, counsel submitted a reasonable observer, informed of the circumstances, would not believe a puisne judge enjoyed the independence required by s. 11(

d) of the Charter . [ 20 ] In response to the defence applications, the prosecution argued the authorization should be upheld. Crown counsel contended the trial judge could conclude from the face of the ITO that it had been taken under oath. Because the police had previously obtained warrants, production orders, data recorder authorizations, as well as other judicial authorizations, the prosecution said it was clear the interception of private communications was reasonably necessary to advance the investigation.

Crown counsel submitted the error in the domain name was immaterial, as it was the PIN and not the domain name that was used to intercept the communications. Crown counsel also opposed the application to cross-examine various witnesses. He argued that Mr. Williams had failed to demonstrate a reasonable likelihood the cross-examination would elicit relevant evidence in the case of the non-affiant witnesses and evidence tending to discredit the authorization in the case of the affiant.

Finally, prosecution counsel contended the trial judge was independent of the Chief Justice of the Court of Queen’s Bench of New Brunswick, and, consequently, the defence application under s. 11(

d) of the Charter should be dismissed. [ 21 ] On August 24, 2015, the trial judge dismissed the defence application under s. 11(

d) of the Charter . He concluded a well-informed, reasonable member of the public would not be concerned whether he lacked judicial independence from the Chief Justice of the Court of Queen’s Bench.

In particular, the trial judge reasoned, in the absence of specific evidence tending to undermine his impartiality, it would be speculative to think he would disregard his oath of office and rule against his conscience because of fear that the Chief Justice of the Court of Queen’s Bench could use powers under the Judicature Act to his detriment. [ 22 ] On August 31, 2015, the trial judge determined the defence would be permitted to cross-examine the affiant on some aspects of the evidence.

He held that cross-examination would be allowed concerning the absence of a jurat as well as the discovery of the mistaken domain name and the efforts to redress the problem. However, he dismissed the application to cross-examine the affiant regarding investigative necessity. [ 23 ] On January 20, 2016, the trial judge held defence counsel would also be permitted to cross-examine Sgt. Vachon regarding the circumstances under which he learned of the error regarding the domain name, as well as his response to the issue, including his decision to persist with the interceptions after learning of the error.

With respect to cross-examination of the Crown agents, the trial judge determined the proposed questioning was not necessary, and he did not allow it. On February 4, 2016, the trial judge also dismissed the defence application to cross-examine the remaining witnesses, including S/Sgt. Saad and S/Sgt. Farah. He explained: “their evidence was largely covered by Sgt. Vachon and Cpl. Matthieu Girard to date. So I’m not going to order that [they] be cross examined.” [ 24 ] On March 15, 2016, the trial judge rendered his decision dismissing the challenge to the authorizations under ss. 8 and 24(2) of the Charter .

He concluded the issuing justice could have inferred the ITO was a sworn affidavit, since the document began with the declaration “I … make oath and say,” the declarant signed the document, and the Commissioner of Oaths also signed it and affixed her seal. Also, the evidence as amplified on the application demonstrated the document had been sworn; Cpl. Girard testified the Commissioner had administered the oath. The trial judge also held the issuing justice could have concluded investigative necessity had been established.

The ITO supported the inference, in his view, that “the interception of the messages on the PGP BlackBerry devices was likely the only method of obtaining evidence to move this investigation forward in a way that would achieve their stated objectives, particularly that of successfully prosecuting the so-called higher ups in the local drug trade.” [ 25 ] Finally, the trial judge held the police had intercepted communications based on the PIN associated with each phone and not the domain name attached to the email.

As a result, the domain name was merely an “unnecessary additional identifier of the place to be searched.” Consequently, he concluded, the error in the domain name included in the original ITO of May 12, 2014, was immaterial and did not invalidate the authorizations. Since the initial authorization had been lawful, the evidence collected pursuant to that authorization was not obtained in violation of the Charter . Thus, the trial judge reasoned, the subsequent authorization, dated July 11, 2014, did not violate the Charter .

All of the evidence obtained from the May 12, June 11, and July 10, 2014 authorizations was therefore admitted. [ 26 ] On September 19, 2016, the trial judge rendered his decision convicting Mr. Williams and Mr. Kindred on all counts. In the decision, he cautioned himself against relying on the evidence of the agent without looking for corroborative evidence. After considering the intercepted communications as supporting the agent’s evidence, the trial judge concluded the prosecution had proven its case beyond a reasonable doubt. On December 9, 2016, the trial judge sentenced Mr.

Williams to imprisonment for 78.5 months, calculated as nine years and 11 months less credit for time served. Pursuant to s. 743.6 of the Criminal Code, the judge directed

Mr. Williams would not be eligible for parole until at least half his sentence had been served. He also issued a number of ancillary orders. IV. Grounds of appeal [ 27 ] Mr. Williams appeals his conviction, submitting the trial judge erred by: 1) dismissing the defence applications to examine witnesses; 2) dismissing the defence application under s. 11(

d) of the Charter ; and 3) upholding the authorizations. [ 28 ] Alternatively, Mr. Williams seeks leave to appeal the sentence on the ground the judge erred in increasing the period of parole ineligibility. V. Analysis A.

Did the trial judge err in dismissing applications to examine witnesses on various issues? [ 29 ] The trial judge dismissed the defence applications to cross-examine the affiant (regarding investigative necessity), non-affiant witnesses (regarding the error with the domain name and the June 11, 2014 authorization), and the designated agents (concerning the error in the domain name, the decision to continue intercepting communications after the discovery of the error, and whether the warrant applications met the preconditions of ss. 185 and 186 of the Criminal Code ). [ 30 ] Mr.

Williams submits the trial judge erred by applying an incorrect legal test regarding each category of witness. The Crown contends the trial judge judiciously exercised his discretion to deny leave to cross-examine the ten proposed witnesses regarding a misspelled domain name. The Crown says the defence tactic was to round up everyone who was tangentially related to the domain name error. The inquiry began with the affiant but quickly spread.

The trial judge granted leave to cross-examine the affiant, saying “it may or may not result in any significant evidence being elicited but the factual situation is not entirely clear and, in my view, trial fairness requires that the accused have the right to cross-examine Cpl. Girard on this issue” (Decision, August 31, 2015, para 12). [ 31 ] In R. v. Pires/R. v. Lising , 2005 SCC 66 , [ 2005] 3 S.C.R. 343 , the Supreme Court clarified the legal test concerning the granting of leave to cross-examine an affiant.

Charron J., writing for the unanimous Court, explained: There is no question that the right to cross-examine is of fundamental significance to the criminal trial process. However, it is neither unlimited nor absolute. The extent to which it becomes a necessary adjunct to the right to make full answer and defence depends on the context. The Garofoli threshold test requires that the defence show a reasonable likelihood that cross-examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewing judge.

It is grounded in two basic principles of evidence: relevance and materiality. It is also born out of concerns about the prolixity of proceedings and, in many cases, the need to protect the identity of informants. The rule does not infringe the right to make full answer and defence. There is no constitutional right to adduce irrelevant or immaterial evidence.

Further, the leave requirement strikes an appropriate balance between the entitlement to cross- examination as an aspect of the right to make full answer and defence, and the public interest in the fair, but efficient, use of judicial resources and the timely determination of criminal proceedings. [para. 3] [ 32 ] After demonstrating the proposed questioning is relevant to a material issue on the application, Charron J. says: As discussed earlier, the Garofoli leave requirement is simply a means of weeding out unnecessary proceedings on the basis that they are

unlikely to assist in the determination of the relevant issues. The reason that the test will generally leave just a narrow window for cross-examination is not because the test is onerous -- it is because there is just a narrow basis upon which an authorization can be set aside.Hence, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focused onthe question to be determined on a Garofoli review -- whether there is a basis upon which the authorizing judge could grant the order.

Ifthe proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted. However, if theproposed cross-examination falls within the narrow confines of this review, it is not necessary for the defence to go further anddemonstrate that cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization.Such a strict standard was rejected in Garofoli. A reasonable likelihood that it will assist the court to determine a material issue is all thatmust be shown. [para. 40] [33] In the case before us, Mr.

Williams did not demonstrate a reasonable likelihood the cross-examination of thewitnesses would assist the court in determining a material issue. The defence did not assert a theory of wrongdoing, he merely identifiedthe role of each witness and what they wished to examine the witnesses about. The majority of the police witnesses were to be examinedrespecting the manner in which the error came to light, what steps they took and why they were taken. Defence counsel even requestedChief Justice Smith be cross-examined since he was the only witness capable of testifying whether or not he has been misled.

In addition,two court staff members were said to be able to shed light with respect to their interactions with the affiant. All this, in the absence of anyallegation, let alone evidence, of impropriety. It is apparent the objective was to inquire into the circumstances of the error by callingeveryone involved or affected by it and then seeing if anything arose out of these inquiries. [34] The trial judge allowed cross-examination of three witnesses respecting this issue; Mr. Williams now submitshe was denied the opportunity to examine the other ten witnesses.

In my view, an overly broad inquiry of all individuals remotelyconnected with the typographical error in the original affidavit would not have served any purpose. [35] A review of the trial judge’s decision indicates it was consistent with the jurisprudence. The trial judge playsan important role in maintaining the proceedings on their proper course. Voir dires may be held ancillary to the trial in order to determinethe admissibility of evidence at trial.

These voir dires must be viewed in the full context of the trial of which they are only a component.The right to full answer and defence will depend on the context in which it is invoked – in the case before us, a R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115 (QL), motion. [36] In Pires/Lising, the central issue was whether the Garofoli requirement for leave to cross-examine the affiantoffended the right to full answer and defence.

Charron J. explained the scope of the right to full answer and defence is informed by thelimited scope of the application itself, and the narrow basis upon which it may be granted. She made it clear the s. 8 hearing must remainfocused: It is in this narrower context that the right to cross-examine, as an adjunct to the right to make full answer and defence, must beconsidered. There is no point in permitting cross-examination if there is no reasonable likelihood that it will impact on the question ofthe admissibility of the evidence.

The Garofoli threshold test is nothing more than a means of ensuring that, when a s. 8 challenge isinitiated, the proceedings remain focused and on track. Even on the trial proper, the right to cross-examine is not unlimited. In Lyttle, theCourt reiterated the principle that counsel are “bound by the rules of relevancy and barred from resorting to harassment,misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their probative value”(para. 44 (emphasis added)). The Garofoli threshold test is all about relevancy.

If the proposed cross-examination is not relevant to amaterial issue, within the narrow scope of the review on admissibility, there is no reason to permit it. [para. 31] [37] She went on: The concern over the constructive use of judicial resources is as equally, if not more, applicable today as it was 15 years ago whenGarofoli was decided. For our justice system to operate, trial judges must have some ability to control the course of proceedings beforethem.

One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one of the parties when thatparty is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court. [para. 35] [38] In Pires/Lising, the Court did not just affirm the Garofoli leave requirement to cross-examine affiants, it alsodefined how the judge should balance the competing interests of full answer and defence and limited judicial resources when anauthorization is being challenged. [39] In my view, the unconstrained examination of witnesses with little connection to a presumptively valid judicialauthorization runs counter to the principles defined in Pires/Lising.

In a Garofoli application, the affiant is the witness who may possess

the most relevant evidence. It is not sufficient to indicate that a portion of the evidence the police relied on is actually false. Charron J. explained: In some cases, the proposed cross-examination may be directed at the credibility or reliability of an informant. However, cross- examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false. We must not lose sight of the fact that the wiretap authorization is an investigatory tool.

At that stage, a reasonable belief in the existence of the requisite statutory grounds will suffice for the granting of an authorization. Upon further investigation, the grounds relied upon in support of the authorization may prove to be false. That fact does not retroactively invalidate what was an otherwise valid authorization. [para. 41] [ 40 ] Relevance is paramount. The real issue is not whether a proposed witness is an affiant or a sub-affiant.

Any time defence seeks to examine witnesses in a Garofoli motion the judge may exercise his or her discretion to limit proceedings to inquiries that will assist the Court. That is what the judge did here. [ 41 ] In order to obtain leave to cross-examine the advisory Crown counsel, including the wiretap agents, the applicant had to demonstrate it was likely each witness would give material evidence and that it was necessary to obtain such evidence from the witness.

In this case, the trial judge correctly denied leave to cross-examine the witnesses other than the affiant because further evidence from the other witnesses would have been repetitious. [ 42 ] In R. v.

Tingley , 2015 NBCA 51 , 444 N.B.R. (2d) 1, this Court expressed concern respecting prolixity of proceedings and urged trial courts to actively prevent trials from spinning out of control: Before concluding, however, I feel compelled to observe that, while I believe trial judges are fully justified in imposing strict thresholds, and controlling the process by refusing to embark on evidentiary hearings “at the request of one of the parties when that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court” (para. 35 of Pires ) and policing the antics and prolixity of the lawyers, I am not critical of the trial judge in this specific case.

It is not the role of the Court of Appeal to be a “Monday morning quarterback” reviewing the game tapes in search of error. I am merely observing that, unless strict thresholds are devised and applied, the risk of the process collapsing under its own weight materializes. No one is well served when that occurs. [para. 144] [ 43 ] Mr. Williams argues that, in dismissing his request to cross-examine the affiant regarding investigative necessity, the trial judge applied an incorrect legal test.

He further submits that, at the outset of the decision, the trial judge explained the accused must show some basis for concluding the cross-examination will “elicit testimony tending to discredit the existence of one or more of the preconditions to the authorization: R. v. Garofoli , supra.” He also cited the principle from Pires/Lising . When the judge considered the proposed questioning regarding investigative necessity, he explained: “I find the cross-examination on the issue of investigative necessity is not necessary and will not be permitted.” According to Mr.

Williams, the leave requirement the trial judge applied – being “necessary” – is substantially more onerous than the one in the test defined in Pires /Lising , which is “helpful to the trial judge” or “probative of an issue.” [ 44 ] Generally speaking, if a warrant application does not establish one or more of the statutory preconditions, the authorization is unlawful. On a warrant challenge, the question for the reviewing judge is whether the ITO could reasonably have supported its issuance.

Section 186 of the Criminal Code provides an authorization to intercept private communications may be granted if “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.” According to s. 185 of the Criminal Code , this requirement must be established by affidavit. In R. v.

Araujo, 2000 SCC 65 , [2000] 2 S.C.R. 992 , the Supreme Court determined investigative necessity is established where, practically speaking, there is “no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry.” [ 45 ] Mr.

Williams submits the trial judge erred in upholding the warrant for three reasons: 1) the ITO could not establish the investigative necessity precondition because it appeared, from the allegations set out in it, that the investigation had already succeeded and could be advanced substantially further without the interception of private communications pursuant to s. 186 of the Criminal Code . The police had recruited the agent, who provided them with a wealth of information and agreed to testify in court;

2) in addition to collecting information from the agent, the police had also used a variety of investigative techniques: production orders, dialed number recorder authorizations, tracking warrants, general warrants, surveillance and confidential informants. Mr. Williams submits these procedures had not failed, rather they each provided pieces of the puzzle.

With the exception of the information provided by confidential sources, the fruits of these investigative procedures were largely admissible in evidence to support the testimony of the agent; and 3) by the time the police sought the May 12, 2014 authorization, the agent had consented to the interception of his private communications with the targets and the police were preparing to audio and video record the agent’s home, business and vehicle. [ 46 ] Mr. Williams alleges the affiant did not offer a reasonable explanation for why the targets could not be prosecuted with the information already provided.

At various intervals of the ITO, the affiant referred to the failure of previous techniques to yield direct evidence against the targets. Mr. Williams argues the claim that an investigation has failed simply because it had not yielded direct evidence reflects a shortsighted, inaccurate concept of what may constitute a successful investigation and prosecution. Crown counsel submits there was sufficient evidence of investigative necessity such that the issuing justice could grant authorization number one.

Regarding the claim of investigative necessity, the trial judge concluded the authorizing judge could well have drawn the inference that interception of the messages on the PGP BlackBerry devices was likely the only method of obtaining evidence needed to move this investigation forward in a way that would achieve the stated objectives, particularly that of successfully prosecuting the so-called higher ups in the local drug trade. [ 47 ] Crown counsel submitted the statutory requirement of investigative necessity does not limit the use of the wiretap to a tool of last resort; it calls for practical necessity in light of the investigative objectives.

Mr. Williams’ main challenge to investigative necessity was that he believed a one-party consent for the agent’s communications would have been sufficient to meet the objectives of the investigation.

After reviewing the affidavit evidence carefully, the trial judge concluded the authorizing judge had sufficient, reliable information that might reasonably be believed from which he could conclude the use of a wiretap was practically necessary to further the investigation. [ 48 ] In order to assess investigative necessity, one must look “at the objectives of the investigation as a whole.” In this case, the trial judge correctly identified the investigative objectives as “clearly targeting criminals above and beyond those named in the authorization – that is the whole point of the authorization, to identify and prosecute those occupying the highest rung of the trafficking operation, including suppliers” (para. 70 of the decision dated March 15, 2016). [ 49 ] An assessment of investigative necessity is not limited to prosecution of the named parties.

As reflected in the ITO, the objective of Operation J Tornado was to dismantle and disrupt mid- and upper-level cocaine traffickers in the area of Saint John. As a result of Operation J Tornado, several other individuals, apart from Mr. Williams and Mr. Kindred, were convicted. On the other hand, if the scope of the investigation is supported on reasonable grounds, which is not in issue in this case, there is no danger the objectives of the investigation will be inflated so as to make use of a wiretap necessary.

The corollary to this is that investigative necessity does not operate to limit police investigations to easily accessible targets. The police identified Anthony Edison as the main target, along with six other high-level traffickers, including Mr. Williams and Mr. Kindred. Their objective was, in part, to “identify all high-level drug traffickers involved in the distribution of controlled substances” with the seven named persons. The agent was one of the ounce-level traffickers to whom Mr. Williams sold cocaine.

Even with the agent’s assistance, the suppliers were out of reach and the connections between these groups and within each network were not well understood by the police. The affiant repeatedly stated that other investigative techniques had not assisted in determining the roles of the people involved. In fact, the affiant stated: If police only made an application for a one party consent authorization, the police agent would only be able to deal with and purchase controlled substances from Anthony Edison, Shane Williams, Robert White and Angus Blizzard.

No information would be gathered with respect to suppliers, associates and the means by which these individuals operate, and the only messages which could be intercepted would be those sent or received by: the agent, Anthony Edison, Shane Williams, Robert White and Angus Blizzard. [ 50 ] Furthermore, the trial judge delineated three obstacles that could not be overcome by one-party consent for the agent’s communications, based on the affidavit: 1) the agent was not close to all the named persons; 2) the individuals did not normally communicate verbally; and 3) they usually did communicate through email with encrypted BlackBerry devices.

The Crown submits: The more sophisticated the group, the more likely that traditional technique will fail. There are significant advantages to criminals who choose to work together to “acquire a level of sophistication and expertise that poses an enhanced threat to the surrounding community”. Communication within the group was critical.

A lot of coordination is required to identify a supplier and build a trusted relationship, get the drugs into the city (often by couriers), cut the cocaine to increase the quantity for sale and widen the profit margin, portion and package the cocaine for sale, identify trusted buyers, negotiate terms and set up meetings for the exchanges. The mode of communication used by the targets impacted investigators’ ability to gather evidence by traditional means. By using PGP Blackberry

devices to communicate their plans instead of talking to each other, for example, the opportunities for police or other witnesses to overhear were reduced. In order to dismantle the trafficking networks and disrupt the supply and importation of cocaine, the police needed to see the groups’ inner workings – they needed access to the plans and agreements being made on the PGP Blackberry devices. Other investigative techniques “cannot reach the degree of participation and state of mind of those involved”. [ 51 ] Finally, Mr.

Williams’ assertion that, based on the past observations of the agent, the Crown already had a viable prosecution against the named parties, is markedly different from his position at trial. [ 52 ] In assessing whether investigative necessity has been established, it is appropriate for the Court to consider the permutations of proof in a criminal trial, including the frailties of evidence and the value of corroborating evidence of an agent or disreputable witness ( see R. v. Rosebush , 1992 ABCA 293 , paras. 11-14 , leave to appeal refused, [1992] S.C.C.A. No. 563 ).

The trial judge properly considered the techniques used by the police as well as their limitations; he reviewed the leading jurisprudence respecting investigative necessity. In R. v. Nestorovsky (appeal by Mac) , 2016 ONCA 379 , [ 2016] O.J. No. 2581 (QL), the court stated: To summarize, the undercover operation could not be escalated due to the risk to the undercover officer. Physical and video surveillance, the number recorder warrants, and the tracking devices were unlikely to reveal anything more than known associations. Lastly, any additional covert entry into Mr.

Chan's apartment was unlikely to find any large quantities of drugs since the drugs were not stored there for any lengthy period of time. The appellant would have this court look at each individual technique in isolation and question why the police did pursue each to its utmost. But the appellant's approach is flawed. The investigative necessity inquiry is contextual and must focus on the investigation as a whole, not examine each individual technique under a microscope. The police were dealing with a sophisticated criminal conspiracy that had proven resistant to traditional investigative techniques.

Investigative necessity dictated that a wiretap authorization was the only realistic method by which the police could identify the ring leaders. The police did not rush to obtain a wiretap authorization in this case. They conducted a thorough and extensive operation and reached an impasse. The trial judge assessed the application as a whole and concluded that there was a basis upon which the authorizing judge could issue the wiretap authorization.

I see no basis to disturb this assessment on appeal. [paras. 54-56] [ 53 ] In my view, the trial judge, after taking a contextual approach and not examining each individual technique in isolation, correctly concluded the investigative necessity requirement was made out by the evidence contained in the May 12, 2014, and July 8, 2014 affidavits. [ 54 ] The objectives of Operation J Tornado were broader than what could have been achieved by the agent making direct drug purchases from each of the seven named persons, even if that had been possible.

The argument that investigative necessity was not made out because other techniques would have met the objectives regarding one of the targets was rejected as untenable by the Ontario Court of Appeal in R. v. Beauchamp , 2015 ONCA 260 , [2015] O.J. No. 1939 (QL) . In that case the court stated: “Investigative necessity is not target-specific any more than the legal standard of proof applies to individual items of evidence adduced in a criminal trial” (para. 119). [ 55 ] The trial judge had sufficient evidence before him to assess the relationship between the agent and the targets on the face of the affidavit.

He explained the targets “were out of reach,” in other words, the agent could not buy drugs directly from them. In determining what the agent could reasonably do, it was appropriate for the police to carefully consider how closely the agent had previously associated with the targets and whether setting up a scenario with certain targets would raise suspicions and put the agent and the investigation at risk. In R. v. Wasfi , 2006 BCCA 55 , [2006] B.C.J.

No. 239 (QL), the court stated: In my opinion, it is an error to suggest that police investigators must avoid anticipating early in an investigation that they will need to apply for a wiretap authorization. The nature of the case might make it plain to the officers early on that it is unlikely they will be able to make a strong case without wiretap evidence. The investigation of drug trafficking and drug conspiracy cases often leads to wiretap evidence becoming a matter of investigative necessity.

The use of other means of investigation (recruiting of accomplices and use of undercover operatives, for example) in most drug cases involves a considerable risk of exposing police awareness of the illegal activity to the targets of the investigation before evidence sufficient to make a case is obtained. Such means of investigation also create the substantial potential of putting people in harm's way. The reviewing judge must look at the particular evidence in each case, but he or she should not do so without understanding the realities and risks associated with other means of investigation.

Drug traffickers, particularly

those at higher levels of the distribution ladder, can be expected to employ methods designed to counter police inquiry into their activities and to be willing to resort to violence to avoid detection. It does not follow that every drug investigation will automatically entail sustainable judicial authorization of intercepted private communications, but the realities of this type of investigation must be recognized on review. [para. 49] [ 56 ] The affidavit presented strong and compelling evidence of investigative necessity in respect of the investigation as a whole. The issues identified by Mr.

Williams are exactly the type that the threshold requirement was created to guard against. The trial judge correctly stated and applied the test for leave to cross-examine the affiant. His ruling respecting leave to cross- examine is short and to the point, consisting of 15 paragraphs. In paras. 2 to 3, he correctly stated the test and cited the leading cases. In declining to permit cross-examination on investigative necessity he did not err in law. B. Did the trial judge err in dismissing the s. 11(

d) Charter application? [ 57 ] Every person charged with an offence has the right to be judged by an independent and impartial tribunal. This right is entrenched in s. 11(

d) of the Canadian Charter of Rights and Freedoms . [ 58 ] Mr. Williams alleges a violation of that right. He neither alleges the trial judge was partial nor that there was an appearance of partiality. His sole argument is that the trial judge was not independent. Mr. Williams claims all puisne judges of the Court of Queen’s Bench lose their independence when an authorization to be reviewed is one that has been issued by the Chief Justice of that Court.

He claims this is so because of the powers of the Chief Justice as set out in the Judicature Act . [ 59 ] The Judicature Act provides that the New Brunswick Court of Queen’s Bench consists of the Chief Justice of that Court and not more than 25 “other judges” plus supernumerary judges: s. 2(3). The Court has two divisions: a Trial Division and a Family Division. Eleven of the 25 judges must be judges of the Family Division: s. 2(4.1).

Judges of one division can “from time to time” hear and determine proceedings in the other division: ss. 2(4.2) and 11(2). [ 60 ] Before entering upon the duties of the judicial office, a judge must take and subscribe to an oath or affirmation declaring that he or she will, inter alia , “do right to all manner of people according to law, without fear or favour, affection or ill will” (s. 3(1). [ 61 ] The Judicature Act mandates that “[a]t least one judge of the Family Division or the Trial Division of the Court of Queen’s Bench shall reside in each of [eight listed municipalities] or within an area of fifty kilometres from the municipality”: s. 4(1). [ 62 ] While the general policy of both the Court of Appeal and the Court of Queen’s Bench in judicial matters rests with the Chief Justice of New Brunswick, the Chief Justice of the Court of Queen’s Bench is responsible to “coordinate and apportion the work of the judges” of that Court: s. 12. [ 63 ] Although it has since been amended, at the time of trial s. 12.01 read as follows:

12.01

(1) For the purpose of ensuring the proper functioning of the Court, the Chief Justice of the Court of Queen’s Bench is responsible for the administration of the judicial responsibilities of the Court of Queen’s Bench in relation to the judiciary.

(2) In carrying out his or her duties under subsection (1) and any other provision of this Act, and without limiting the generality of that subsection or any other provision, the Chief Justice (

a) shall direct and supervise the assignment of judicial duties to individual judges and may alter those duties from time to time, (

b) shall determine the total annual, monthly and weekly workload of individual judges, (

c) may require a judge to act during the absence of another judge in the place of the judge who is absent, (

d) may designate the place where a judge is to hold sittings and the days on which he or she is to hold such sittings, and (

e) may designate the place where a judge is to establish and maintain an office.

(3) On the appointment of a judge made after the commencement of this subsection, the Chief Justice of the Court of Queen’s Bench may designate the place at which the judge is to establish residence. It now reads: 12.01

(3) Subject to subsections (4) and (5), the Chief Justice of the Court of Queen’s Bench, with the consent of the Minister of Justice, may designate the place at which a judge is to establish residence. 12.01

(1) Pour assurer le bon fonctionnement de la Cour, le juge en chef de la Cour du Banc de la Reine est chargé de l’administration des responsabilités judiciaires de la Cour du Banc de la Reine relativement à la magistrature.

(2) Dans l’exercice des fonctions que lui confèrent le paragraphe (1) et toute autre disposition de la présente loi, et sans que soit limitée la portée générale de ce paragraphe ou de toute autre disposition, le juge en chef

a) est chargé de l’assignation des fonctions judiciaires à chacun des juges et exerce une surveillance sur l’assignation, et peut modifier ces fonctions lorsqu’il y a lieu,

b) détermine l’entière charge de travail annuelle, mensuelle et hebdomadaire de chacun des juges,

c) peut requérir d’un juge qu’il remplace un autre juge durant son absence,

d) peut désigner le lieu où un juge doit siéger ainsi que les jours où il doit y siéger, et

e) peut désigner le lieu où un juge doit établir et tenir un bureau.

(3) Lors de la nomination d’un juge faite après l’entrée en vigueur du présent paragraphe, le juge en chef de la Cour du Banc de la Reine peut désigner le lieu où le juge doit établir sa résidence Voici son libellé actuel : 12.01

(3) Sous réserve des paragraphes (4) et (5), le juge en chef de la Cour du Banc de la Reine peut, avec le consentement du ministre de la Justice, désigner le lieu où un juge doit établir sa résidence. [ 64 ] At trial, Mr. Williams argued the above-referred provisions of the Judicature Act “impair the independence of a judge of the Court of Queen’s Bench who is asked to sit in review of a decision of the Chief Justice.” He argued that, as a result, his right to be tried by an independent tribunal was infringed. The trial judge rejected this argument. Mr.

Williams claims that, in doing so, the trial judge erred by applying the wrong legal test. According to Mr. Williams, the judge considered the test employed to determine

whether a tribunal is impartial instead of the one to determine if the tribunal is independent. He also claims the trial judgeoveremphasized the judicial oath of office. [65] In my view, this ground of appeal is wholly devoid of merit. This is not a case in which it is alleged someexternal body or force can be said to be in a position to exert (or be seen as possibly exerting) influence over a judge’s decision-makingduties.

Rather, it is a case involving the administrative powers of a senior juidicial officer whose decisions and actions are presumed tohave been made “exclusively out of consideration for the interests of the court and the administration of justice generally:” OntarioDeputy Judges Association v. the Atty. Gen. of Ontario, 2011 ONSC 6956, [2011] O.J. No. 5352 (QL), aff’d 2012 ONCA 437, [2012]O.J. No. 2865 (QL), at paras. 40, 58 and 59. [66] This presumption is grounded not in the judicial oath of office of each puisne judge, but in the oath of office ofthe Chief Justice.

A Chief Justice exercises many discretionary powers in addition to those contained in the Judicature Act. In theabsence of evidence to the contrary, it is presumed that, in fulfilling his duties, a Chief Justice will act only in the interests of the courtand the administration of justice. Failure to do so would violate the Chief Justice’s oath of office. [67] In the present case, Mr. Williams has not even alleged improper conduct by the Chief Justice that would causethe Court’s puisne judges to lose their independence, let alone adduced any evidence of it.

Unless the presumption were rebutted, areasonable observer would invariably conclude that puisne judges are free to exercise their decision-making powers independently of anyinfluence by their Chief Justice, who is sworn to do right to the judges of the Court according to law – meaning in the best interests of theCourt and the administration of Justice. C. Did the trial judge err in upholding the authorizations? 1) Jurat [68] At trial, Mr. Williams and Mr.

Kindred brought facial and sub-facial challenges to the May 12, 2014 affidavitfiled in support of the authorization on the ground it was missing a jurat and, accordingly, was not a proper affidavit. They claimed thestatutory precondition contained in s. 185(1) of the Criminal Code had not been met. [69] As stated earlier, at the outset of his affidavit the affiant stated: “I, Cpl. Matthieu G[…] Hereby make oath andsay as follows.” At para. 464, the document is signed by Cpl. Girard and signed by a Commissioner of Oaths, Janet C. MacLachlan, withher commissioner stamp affixed. The jurat was missing.

The trial judge determined “the jurat is a certificate. It is not the oath itself.” Itis merely evidence that the oath was taken but not necessarily the only evidence. The trial judge distinguished C.D. v. A.B. (2004), (NB CA), 283 NBR (2d) 138, [2004] N.B.J. No. 443 (C.A.) (QL) from this case on its facts. In C.D., there was not evenan assertion that the person who signed the document sworn to its truth. [70] The absence of a complete jurat does not contradict the affiant’s assertion he gave his evidence under oath;what is missing is the usual corroboration that an oath was taken.

Based on the record before the issuing justice, the only conclusion thatcould be drawn was the evidence given by the affiant was under oath. Defence counsel raised a further challenge, arguing the affidavitwas inadmissible under the Rules of Court and, therefore, not properly before the issuing judge. Rule 4.05(13) provides, as follows: Except with leave of the court, an affidavitshall not be used or filed unless the personbefore whom it is sworn shows in the jurat (

a) the date when it was sworn, (

b) the place where it was sworn, and (

c) that the affidavit was sworn before him. Sauf permission de la cour, aucun affidavit nedoit être utilisé ni déposé sans que celui quireçoit le serment n’indique dans la formuled’assermentation

a) la date de la prestation du serment,

b) le lieu de la prestation du serment et

c) le fait qu’il a reçu le serment.

[71] The rule gives the court discretion to admit affidavits that are non-compliant. Furthermore, Mr. Williamssought leave to cross-examine the affiant on the premise that, although it appeared from the affidavit that it was sworn, it in fact was not.The trial judge granted leave to cross-examine on this issue. The affiant testified he did swear to the affidavit on May 12, 2014, and had aclear recollection of doing so. The Commissioner of Oaths, Janet C. MacLachlan, also swore an affidavit stating she had administered anoath. [72] In R. v. Lachance, (SCC), [1990] 2 S.C.R. 1490, [1990] S.C.J.

No. 116 (QL), the appellantwas convicted of aggravated assault. Wiretap evidence was introduced by the Crown. The trial judge found there was no evidence toindicate any fraud, nondisclosure or misleading disclosure on the part of any individual engaged in obtaining the wiretap authorization,and the authorization was perfectly valid on its face. He ruled the evidence admissible. The Court of Appeal upheld the conviction.Defence counsel raised the issue whether one of the authorizations was invalid because it was based on an unsworn affidavit.

The juratin the affidavit had not been completed by the Commissioner of Oaths, although the date had been inserted. The Court of Appeal,pursuant to s. 610 of the Criminal Code, called as witnesses a police officer and the agent for the Attorney General involved in obtainingthe authorization. They were examined by the prosecutor and cross-examined by defence counsel. Based on this viva voce evidence, thecourt concluded the affiant had sworn the affidavit and the jurat had been left incomplete by oversight. Thus, the authorization was notinvalid. The Supreme Court agreed. [73] In R. v.

Blizzard, 2005 NBQB 402, [2005] N.B.J. No. 566 (QL), Glennie J. followed the reasoning in Lachancewhen faced with an application by an accused for a stay of proceedings due to a breach of his Charter rights. The accused argued, amongmany other things, that four ITOs were invalid as the jurats attached were not signed. Justice Glennie stated: As mentioned, four of the Informations contained unsigned jurats. In R. v. La Chance, (SCC), [1990] 2 S.C.R. 1490,Justice Sopinka writes at para. 12: Para. 12 The appellant raised three arguments with respect to the affidavits.

First, it was argued that one of the authorizations was invalidbecause it was based upon an unsworn affidavit. The jurat in the affidavit had not been completed by the Commissioner for Oaths,although the date had been inserted. The Court of Appeal, pursuant to s. 610 of the Criminal Code, R.S.C. 1970, c. C-34, called aswitnesses Sergeant Lamont and the agent for the Attorney General who obtained the authorization. They were examined in chief by theCrown and cross-examined by counsel for Daniel Lachance.

On this viva voce evidence, the Court concluded that the affiant had swornthe affidavit and the jurat had been left incomplete by oversight. Thus the authorization was not invalid. In the present case, I accept the testimony of Constable Kerr that he swore each of the four Informations where the jurats are not signed.I accept his testimony that it was his practice to never leave the judge's office without swearing an Information. He says that it was hispractice that no warrant would be signed until his affidavit was sworn.

I conclude that the affiant swore the affidavits in each of thosefour cases. [paras. 49-50] [74] In R. v. Ho, 2012 ABCA 348, [2012] A.J. No. 1170 (QL), the accused appealed convictions for firearmoffences. He was caught with seven loaded handguns, some of which were fitted with high-grade silencers. All of the weapons wereseized pursuant to a general warrant. At trial, Mr. Ho sought to quash the warrant. The police had attended twice with unsworn ITOs andunsigned draft general warrants. The second attendance occurred after the judge had pointed out a weakness in the ITO during the firstattendance. Mr.

Ho relied on a portion of the cross-examination of the lead detective that suggested the general warrant had been issuedbefore the ITO was sworn, and thus the warrant was issued based on unsworn evidence. However, the witness firmly denied departingfrom his usual practice of relying on sworn evidence to obtain the warrant. The trial judge refused to quash the warrant, finding thedetective witness was either confused or mistaken as to the procedure followed by the issuing judge. Mr.

Ho appealed on the basis theprocess for issuance of the warrant was defective and the judge tainted her impartiality by pointing out the defects in the ITO prior to re-attendance and issuance of the warrant. [75] The Alberta Court of Appeal dismissed the appeal, saying there was nothing problematic if the ProvincialCourt judge was asked for a warrant, read all the material, and signed the warrant before signing the jurat, but after administering theoath.

Even if the judge signed the warrant and subsequently administered the oath to the affiant of the ITO, no legal flaw arose, as thesigning of the warrant and the swearing of the ITO were part and parcel of the same transaction. Regardless, the court offered: […] a commissioner for oaths does a minimum of two different things when handed a form of affidavit. First, he or she administers theoath. Second, he or she fills out and signs the jurat at the end. The jurat is not the oath; it is just a certificate that the oath has beenadministered.

The two are not the same thing at all, and the oath is effective before the jurat is signed: R. v. Dean (1985), (AB KB), 57 AR 81, 17 CCC (3d) 410 (para 30). [para. 11]

[ 76 ] Finally, in R. v. Chen , 2016 BCCA 506 , [2016] B.C.J. No. 2719 (QL), Mr. Chen appealed convictions for possession of cocaine and methamphetamine for trafficking and for several weapons offences. Mr. Chen agreed to sell amphetamine to an undercover police officer. The transaction was aborted after the officer had obtained two search warrants. The transaction was rescheduled to a later date, to take place at Mr. Chen’s home. The officer applied for two more search warrants, one of which was for Mr. Chen’s home.

He left supporting materials for the justice of the peace and was informed the warrants had been issued and were ready to be picked up. The warrants did not bear the signature of the justice of the peace, but rather her printed name. The sealing order that accompanied the warrants did bear her handwritten signature. Noticing no irregularity on the face of the warrants, the police executed the warrant to search Mr. Chen’s home. Mr. Chen was identified as a homeowner and was presented with the relevant warrant. The drugs and weapons giving rise to the charges were located in the home. In a voir dire , Mr.

Chen challenged the reasonableness of the search, taking the position it was warrantless because of the missing signature of the justice of the peace. [ 77 ] The trial judge ruled the warrant was valid, but the absence of the signature meant that Mr. Chen was not provided with proper notice that the warrant was authorized. As such, the judge found that Mr. Chen’s right to protection against unreasonable search and seizure was breached.

He went on to admit the evidence obtained pursuant to the search, because of the unique situation which did not involve willful blindness on the part of the police and the social interest in seeing Mr. Chen tried on the merits of the Crown’s case. He found a reasonable person would not find the reputation of the justice system harmed if the evidence was admitted. The British Columbia Court of Appeal dismissed the appeal. They found the trial judge properly characterized the error by the police as rare and understandable.

The crucial error was that of the justice of the peace, who was primarily responsible for ensuring the police received a warrant that was valid and properly served. Had Mr. Chen noticed the signature was absent, it was likely that a signed copy of the warrant would have been obtained and provided to him. The breach of Mr. Chen’s rights was unfortunate but not serious.

Newberry J.A. stated: At para. 86 of Grant , the Supreme Court of Canada cautioned that where a trial judge has considered the proper factors, the appellate court should “accord considerable deference to his or her ultimate determination.” If it is correct that the search warrant was validly issued, there is in my view no basis on which we could or should interfere with the trial judge’s Grant analysis. The appellant does not contend that reasonable grounds did not exist for the warrant to be issued. The officers were acting in good faith and went through all the necessary and usual steps to obtain it.

They had been told a warrant had been issued and was ready to be picked up. They had picked it up, taken it with them to Mr. Chen’s residence and shown it to him. There is no suggestion they were aware that the justice's signature was missing. The evidence in question is highly reliable and necessary for the Crown’s case to be decided on its merits. I agree with the trial judge that this was a rare and understandable -- if not wholly excusable -- lapse of attention on the part of the police.

In truth, however, the crucial error was that of the justice of the peace, who had primary responsibility for ensuring that the police received a warrant that was valid and that served the purposes of s. 29(1). The fact that no other case in Canada has been located in which a justice of the peace has failed to sign the warrant is an indication that her mistake was an aberration rather than part of a pattern of recurring neglect or carelessness. It must be also noted that if the police or Mr.

Chen had noticed the lack of signature, it is likely a signed copy of the warrant could have been easily obtained and provided to him. In all the circumstances, while the mistake was an unfortunate one, it did not in my view place the seriousness of the breach at the high end of the scale. I cannot say the judge below erred in his ruling. [paras. 42-44] [ 78 ] In the case before us the trial judge found: The accused submit that because there was no jurat it was not possible for the authorizing judge to know where and when Cpl. Girard and the Commissioner of Oaths signed the document. I disagree.

Judges are constantly required to draw inferences based on reliable evidence. In this case there is an obvious inference that the authorizing judge could draw from the evidence, viz . that Cpl. Girard and Janet McLaughlin signed the document at Fredericton on May 12, 2014.

Taking the totality of those facts into account and applying the presumption of regularity, I find that there was sufficient reliable information that might reasonably be believed before the authorizing judge to conclude that Corporal Girard swore the affidavit before a Commissioner of Oaths on May 12, 2014 in Fredericton, New Brunswick even without the evidence or certificate that should have been on the face of the document, i.e. the jurat .

I further find that in all the circumstances and considering that the absence of a jurat does not impact on the substance of the application, he could have concluded that the failure to include a jurat was no more than a procedural error and that in light of the provisions of Rule 2.02 it would be appropriate for him to exercise his discretion under Rule 4.05 to grant leave to allow the document to be filed in support of the application thereby making it compliant with section 185(1) of the Criminal Code . I therefore dismiss the challenge by the accused to the facial validity of the ITO for lack of a jurat .

While the motion presented this issue as a facial challenge, the accused sought and obtained leave to cross-examine Corporal Girard about the jurat issue thereby expanding it to be a sub-facial challenge. This evidence, which I accept, makes clear that in fact Corporal Girard did attend before Janet McLaughlin on the 12 th day of May, 2014 at which time he presented the ITO to her and swore to the truth of its contents, signed it and that she signed it as well. Consequently, with that amplified record, the sub-facial challenge to the validity of the May 12, 2014 authorization for lack of a jurat in the ITO is also dismissed (see R. v. Blizzard et al 2005 NBQB 402 ). In

summary I find that the document filed with the court in support of the application for a

Part VI authorization on May 12, 2014 contained sufficient reliable information that might reasonably be believed on the basis of which the authorizing judge could accept it as an affidavit as required by section 185(1) of the Criminal Code . I therefore dismiss the submission by the accused that there was no evidential foundation in support of that application. [paras. 44-47] [ 79 ] I agree. The jurat is a certificate, it is not the oath itself; it is evidence that the oath was taken, but not necessarily the only evidence.

The document presented to the authorizing judge in support of the May 12, 2014 application does not contain a jurat , but the testimony of Cpl. Girard allowed the trial judge to draw an inference based on reliable evidence. In this case, he found there was an obvious inference the authorizing judge could draw from the evidence that Cpl. Girard had sworn the document before a Commissioner of Oaths. In fact, the trial judge made a finding there was sufficient reliable information that might reasonably be believed before the authorizing judge to conclude that Cpl.

Girard swore the affidavit before a Commissioner of Oaths on May 12, 2014, in Fredericton, even without the certificate that should have been on the face of the document, i.e. the jurat . [ 80 ] He further found that, in consideration of all the circumstances, the absence of a jurat did not impact on the substance of the application. The trial judge dismissed the challenge by Mr. Williams to the facial validity of the ITO for lack of a jurat . [ 81 ] Counsel for Mr. Williams went further with the motion, presenting the issue of the jurat as a facial challenge, and sought and obtained leave to cross-examine Cpl.

Girard about the jurat issue, thereby expanding it to a sub-facial challenge. This evidence, which the trial judge accepted, made it clear the affiant had attended before the Commissioner of Oaths on May 12, 2014, at which time he presented the ITO to her, swore to the truth of its contents and signed it, and that the Commissioner signed it as well. [ 82 ] The trial judge found with the amplified record that the sub-facial challenge to the validity of the May 12, 2014 authorization respecting the missing jurat must be dismissed.

There is no basis to interfere with the trial judge’s determination regarding the missing jurat .

(2) Duration clause [ 83 ] Mr. Williams submits because Cpl. Girard did not specify in para. 604 of the ITO the beginning and end dates of the proposed authorization, it is facially invalid as it does not comply with section 185(1) (

g) of the Criminal Code . Section 185(1) (

g) states:

Application for authorization 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: […] (

g) the period for which the authorization is requested[.] Demande d’autorisation 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 par : […] 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 : […]

g) la période pour laquelle l’autorisation est demandée[.] [ 84 ] He further submits that, by leaving the dates blank, the period requested could run from May 1, 2014, to July 31, 2014, a period of 92 days. The trial judge found s. 185(1) (

g) is broad and does not require the affiant to specify the exact start and end dates, only the period for which it is sought. The ITO specified the requested authorization was for a period “not exceeding 60 days,” which, in the trial judge’s view, was not misleading. Furthermore, the authorizing judge inserted a period in the authorization. This led the trial judge to infer that what the authorizing judge intended was a 60-day period.

The trial judge further found inserting the period did not conscript the authorizing judge as “a member of the application team.” The authorizing judge was merely doing his job, which was to put his mind to the dates he deemed appropriate at the time the authorization was signed. [ 85 ] In R. v. R.K.C. , 2004 BCCA 163 , [2004] B.C.J. No. 554 (QL) , the issue arose whether audiotapes and videotapes of conversations the appellant had with an RCMP undercover officer should have been admitted into evidence. [ 86 ] In the voir dire , a Mr. Hilderman and a Sgt.

Gross testified to the sequence of events leading to the granting of the second authorization. Mr. Hilderman then was Crown counsel in Williams Lake and was designated as an agent under s. 185 of the Criminal Code for making applications for wiretap authorizations. On March 30, 2000, he met Sgt. Gross at the RCMP office in Prince George and reviewed an affidavit that the sergeant had prepared. After discussion, they made some changes to it. Sgt. Gross then swore the affidavit before Mr. Hilderman, who also signed Exhibit “A” to the affidavit, which was a copy of the previous authorization.

The trial judge found that, due to inadvertence, nobody filled in the dates in para. 57 of the affidavit where it was obvious they intended to set out the parameter dates being requested for the authorization. [ 87 ] The trial judge further found Mr. Hilderman took the sworn affidavit, the application for the authorization and the proposed authorization to the courthouse in Prince George. He gave them to a court clerk and asked that they be given to a judge for review. Later, he met Sgt. Gross at the courthouse where they waited until the judge was ready to hear the application.

Eventually, they were ushered into the judge’s chambers and, five to eight minutes later, the judge signed the authorization. The judge enquired about the time period for the authorization and, after consulting a calendar, Sgt. Gross wrote in the dates at the appropriate place in the authorization. [ 88 ] In his ruling ( R v. Calder , 2001 BCSC 83 , [2001] B.C.J. No. 2962 ), the trial judge found: Mr. Hilderman probably had with him in chambers an unsworn copy of Sergeant Gross’s affidavit and placed it on the judge's desk where other documents were positioned.

It was about 3:32 p.m. when Madam Justice Loo signed the authorization. Sergeant Gross and Mr. Hilderman also signed it. In fact, they all signed two copies of the authorization.

Sergeant Gross took one of the signed authorizations and the two men left the judge’s chambers. Sergeant Gross wanted a copy of theaffidavit he had sworn and believes that he asked the court clerk to make him a copy and that she did make him a copy of it and gave it tohim before he left the courthouse. I find he is mistaken about this. When the two men left the courthouse at Prince George, Sergeant Gross had one signed authorization and a copy of an unsworn draft ofhis affidavit which he mistakenly believed was a copy of his sworn affidavit.

While in the judge’s chambers both men believe that Madam Justice Loo had reviewed Sergeant Gross’s sworn affidavit before theyentered her chambers and that it was among the documents on the desk, but neither could state positively that they saw it there. Mr. Hilderman, unbeknownst to him or Sergeant Gross, left the courthouse at Prince George and returned to Williams Lake carrying withhim the original of Sergeant Gross’s sworn affidavit, including the original of Exhibit A. I find it probable that the unsworn copy ofSergeant Gross's affidavit that Mr.

Hilderman left on the judge’s desk on March 30, 2000, was put in the sealed packet in the mistakenbelief that it was the sworn affidavit. I should have said, if I have not already said, that Mr. Hilderman unknowingly left his draft copy of Sergeant Gross’s affidavit on thejudge’s desk and took the original sworn copy, including Exhibit A, with him. [paras. 29-34] [89] He went on to find as a fact that the authorizing judge read and relied on the sworn affidavit, including theexhibit, in granting the authorization.

He said although the evidence was “confusing and in many respects unsatisfactory” it failed torebut the presumption of regularity and validity. [90] The trial jud

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