r v. LEONARDO RIZZUTO, 2021 QCCA 1789

R. c. Rizzuto 2021 QCCA 1789 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-007025-198 (500-01-132334-167) DATE: November 30, 2021 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. MARK SCHRAGER, J.A. PATRICK HEALY, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutor v. LEONARDO RIZZUTO RESPONDENT – Accused JUDGMENT I.

INTRODUCTION [ 1 ] This is an appeal of the judgment rendered of February 25, 2019 by the Court of Québec, Criminal Division, District of Montreal (the Honourable Judge Julie Riendeau), [1] excluding from the record items seized at Respondent’s home and acquitting Respondent. [ 2 ] Respondent, a lawyer by profession, was, with others, under police investigation for drug trafficking and related criminal activity. The police obtained wiretap authorizations for several locations, including the law offices which Respondent shared with other lawyers.

Several conversations intercepted at that office served, in part, as a basis for the warrant to search Respondent’s home. That search uncovered two handguns (one loaded), ammunition and a small amount of cocaine. [ 3 ] Respondent was charged with conspiracy to traffic cocaine and with possession of firearms.

The prosecution split the case such that the conspiracy was prosecuted first in the Superior Court followed by the firearms’ charges in the Court of Québec. [ 4 ] Before the Superior Court, Respondent, together with two co-accused, presented a Garofoli [2] motion with a view to excluding the wiretap evidence collected from the law office. In a lengthy detailed judgment, [3] Downs, J.S.C., decided that even though the interception of the conversations was done in the execution of a valid warrant, the manner in which the police executed the warrant contravened solicitor-client privilege.

He, thus, excluded those conversations from evidence pursuant to s. 24(2) of the Charter and, in the absence of other evidence of conspiracy, acquitted Respondent. [4] The Crown did not appeal. [ 5 ] Before the Court of Québec, given the Downs judgment, which the prosecution did not question, the judge excised the conversations intercepted at the law office from the information to obtain the search warrant (ITO). [ 6 ] Having excised the conversations, Judge Riendeau concluded that the remaining content of the ITO did not justify the issuance of the search warrant, making the seizure illegal.

After considering s. 24(2) of the Charter , she concluded that the items seized at Respondent’s home should be inadmissible as evidence and, thus, she acquitted him. II. FACTS AND PROCEEDINGS [ 7 ] Before the Court of Québec, the parties proceeded on the basis of the facts as found by Justice Downs of the Superior Court, who found that there had been a number of violations of the s. 8 Charter right against unreasonable search and seizure as a result of the way in which the warrant had been executed, including: (

i) installing listening devices to intercept conversations in the conference room used by lawyers and their clients not targeted by the investigation; (ii) failing to establish a procedure to minimize violating solicitor- client privilege; (iii) listening to live conversations (instead of recording them for the reviewing judge); and (iv) releasing to investigators conversations ruled privileged by the reviewing judge. [ 8 ] Justice Downs concluded that while the police had not acted in bad faith, these violations were sufficiently serious to justify exclusion under s. 24(2) of the Charter . Without the communications intercepted at the law office, Appellant conceded that it could not

prove conspiracy, such that, as stated above, Respondent was acquitted in the Superior Court. [ 9 ] The warrant to search Respondent’s residence was authorized before the Downs judgment. The ITO evokes purportedly reasonable grounds for the search based on surveillance, information from a confidential informant (“CI”) and the communications at the law office. The CI had told the police that Respondent was an Italian leader and that, together with a law partner, he used his position as a lawyer to act as a conduit for messages between members of organized crime.

The ITO discloses that the police were looking for money, documents related to drug trafficking (including accounting documents) and (encrypted) cell phones – none of which was found during the search of Respondent’s home. III. JUDGMENT OF THE COURT OF QUÉBEC [ 10 ] As stated earlier, the judge applied the excision rule enunciated by the Supreme Court of Canada in Grant , Plant and Wiley [5] and concluded that without the infringing conversations, the ITO was insufficient to justify the issuance of the warrant.

In so doing, and central to the present appeal, the judge rejected Appellant’s argument to nuance the application of the excision rule in accordance with the circumstances of the case. Equally, she refused to consider the application of s. 24(2) of the Charter to the excised communications. [ 11 ] The information remaining after the communications were excised consisted essentially of a few paragraphs of information from the CI and some observations from police surveillance. The judge found that the CI’s information was insufficiently corroborated.

Moreover, the judge concluded that the CI’s credibility was not established. The surveillance merely showed Respondent to be in the presence of certain criminals without otherwise establishing whether they were criminal associates or just friends. [ 12 ] The ITO being insufficient, the search was found to violate s. 8 of the Charter and the objects seized at Respondent’s residence were excluded upon the application of s. 24(2) of the Charter . In the resulting absence of evidence, Respondent was acquitted of the firearms charges. IV. ISSUES [ 13 ] These are the issues as framed by Appellant: 1.

Did the tri al judge err in law by incorrectly following the principles from R. v. Caissey , 2008 SCC 65 , and searching for corroboration and direct evidence of the Respondent’s involvement in drug trafficking without considering his participation via 21(1) Cr.C .? 2. While applying the rule of automatic excision, did the trial judge err in law by conducting an incomplete s. 24(2) analysis of the seriousness of the breach? a. Is the rule of automatic excision as applied pursuant to Grant , Plant and Wiley reconcilable with the Garofoli review process? b.

Knowing the Superior Court found the wiretap authorizations to be valid, did the trial judge err in law by failing to consider the nature and scope of the Charter breach found by the Superior Court, namely the execution of the wiretap authorizations? [ 14 ] We propose to address the issues by (

i) addressing the application of the excision rule set out in Grant, Plant and Wiley ; [6] (ii) addressing the sufficiency of the ITO without the conversations; and (iii) examining whether exclusion of the objects seized pursuant to the warrant was justified under s. 24(2) of the Charter . V. DISCUSSION (

i) The excision rule Appellant’s position [ 15 ] Appellant contends that the judge of the Court of Québec erred in law because she misapplied and misinterpreted the precedent established by the Supreme Court of Canada in Grant, Plant and Wiley . [7] [ 16 ] Appellant submits that excision leads to incongruous results as it deprives the Court reviewing the issuance of a search warrant pursuant to Garofoli of the ability to contextually assess police conduct as in an analysis under s. 24(2) of the Charter . [ 17 ] Appellant further submits that the excision rule derives from cases in which the information relied on in an ITO was obtained without a warrant.

The instant case involves information obtained pursuant to successive, judicially authorized investigations over a long period of time. Specifically, the interception of communications here was authorized, and the illegality in the exercise of the authorized power was only declared by Downs, J.S.C., subsequent to the swearing of the affidavit in the ITO. Thus, not only is the good faith of the affiant of the ITO for the search of Respondent’s home unimpeachable, there is no binding case law which applies to such a situation and which would require excision of the communications. Moreover, World Bank Group v.

Wallace [8] confirms that the affiant’s reasonable beliefs are to be determined as at the time he or she swore the ITO, such that Appellant posits: 47. One could argue that the officers executing the wiretap authorization had a duty to inform the affiant. But it is important to contextualize here. The constitutional breaches, although serious, have nothing to do with the legality of the authorization or the grounds

to obtain it. The conduct is not deliberate in the sense that the officers were not willfully endeavoring to pervert the authorizationprocess. Despite their good faith, they lacked sufficient care considering the place, a law office, where they were judicially authorized tointercept private communications. In such a context, they cannot be faulted – or double-faulted – for failing to disclose information withrespect to a situation they were not aware was inappropriate. It cannot be said that they sought to conceal their conduct in order to avoidit from being known to the affiant.

Analysis [18] We do not agree with Appellant. [19] The following is the excision rule as stated by the Supreme Court of Canada in Grant:[9] The constitutional test for the sufficiency of information underlying a warrant was stated by this Court in R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, at p. 1452, as follows: The reviewing judge does not substitute his or her view for that of the authorizing judge.

If, based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere. In Kokesch, supra, this Court determined that evidence obtained during a search under warrant had to be excluded under s. 24(2) of theCharter where the warrant was procured through an information which contained facts solely within the knowledge of police as a resultof a Charter violation.

However, in circumstances such as the case at bar where the information contains other facts in addition to thoseobtained in contravention of the Charter, it is necessary for reviewing courts to consider whether the warrant would have been issuedhad the improperly obtained facts been excised from the information sworn to obtain the warrant: Garofoli, supra. In this way, the stateis prevented from benefiting from the illegal acts of police officers, without being forced to sacrifice search warrants which would havebeen issued in any event.

Accordingly, the warrant and search conducted thereunder in the case at bar will be considered constitutionallysound if the warrant would have issued had the observations gleaned through the unconstitutional perimeter searches been excised fromthe information. (…). [20] The method was applied subsequently by the Supreme Court of Canada in R. v. Evans and R. v. Spencer,[10] and it is the methodthe Court of Québec judge applied.

She excised the information obtained in violation of the Charter before analyzing the sufficiency ofthe ITO taken without that information. [21] The judge performed a s. 24(2) of the Charter analysis at the appropriate notional point in time – i.e. after determining that theevidence obtained upon the search of Respondent’s home was obtained illegally. [22] Not only does Appellant’s position not align with the binding case law,[11] but it potentially leads to a type of situation that theexcision rule seeks to avoid.

Allowing information obtained in violation of the Charter to remain in the ITO because of the affiant’signorance or good faith only perpetuates Charter violations by other officers.[12] Appellant seeks to have the Court nuance the excisionrule because the current ITO is the product of a series of warrants issued during a long police investigation, but the result of doing sowould be to perpetuate Charter violations by cleansing them through subsequent use. [23] Moreover, in performing a Garofoli analysis, the judge addressed the question of whether the issuing judge could authorize thewarrant without the offending contents.

The exercise at that juncture is not whether the authorizing judge would have excluded theevidence based on an illegality, of which he was not aware. [24] The dicta in World Bank Group v. Wallace are of no assistance to Appellant. In that case, the Supreme Court of Canadaaddressed the “subfacial” validity of a warrant[13] – i.e. that the ITO did not accurately reflect what the affiant knew or ought to haveknown, so that the warrant should not have been issued. The present case involves a facial challenge – i.e. the ITO is insufficient to meritthe issuance of a warrant, once the necessary excisions are made.

Furthermore, the Supreme Court specifically referred to Grant[14]regarding “the exclusion of unconstitutionally obtained information from warrant applications”, thereby confirming the continuedbinding authority of Grant on the excision principle. [25] Respondent’s position throughout was that, given the Downs judgment, the conversations intercepted at the law office had to beexcised and, without them, the ITO could not support the issuance of the warrant to search Respondent’s house.

The judge followed thatapproach and committed no error of law in such regard. (ii) Sufficiency of the ITO [26] The requisite conditions to be satisfied for the issuance of the warrant in this case are set forth in s. 11(1) of the Controlled Drugsand Substances Act:[15] 11

(1) A justice who, on ex parte application, issatisfied by information on oath that there arereasonable grounds to believe that 11

(1) Le juge de paix qui, sur demande exparte, est convaincu sur la foi d’unedénonciation faite sous serment qu’il existe desmotifs raisonnables de croire à la présence, enun lieu, d’un ou de plusieurs des articlesénumérés ci-dessous peut délivrer à un agent dela paix un mandat l’autorisant, à tout moment, àperquisitionner en ce lieu et à les y saisir :

(

a) a controlled substance or precursor in respect of which this Act has been contravened,

a) une substance désignée ou un précurseur ayant donné lieu à une infraction à la présente loi; (

b) any thing in which a controlled substance or precursor referred to in paragraph (

a) is contained or concealed,

b) une chose qui contient ou recèle une substance désignée ou un précurseur visé à l’alinéa a); (

c) offence-related property, or

c) un bien infractionnel; (

d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in

part in relation to a contravention of this Act, under

section 354 or 462.31 of the Criminal Code

d) une chose qui servira de preuve relativement à une infraction à la présente loi ou, dans les cas où elle découle en tout ou en

partie d’une contravention à la présente loi, à une infraction prévue aux articles 354 ou 462.31 du Code criminel . is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it. [ 27 ] The judge issuing the warrant was tasked with determining whether the police had reasonable and probable grounds to believe that evidence of drug trafficking would be found in Respondent’s home. [16] The Court of Québec judge, as the reviewing judge, was tasked with determining not whether she would have issued the warrant, but whether (after excising the tainted conversations) there was sufficient credible and reliable evidence to permit the issuing judge to authorize the warrant.

The burden of persuasion was on Respondent. [17] [ 28 ] A reviewing judge should not conduct “a piecemeal dissection of individual items of evidence shorn of their context in a vain search for alternative exculpatory inferences (…)”. [18] [ 29 ] To determine the reliability of the CI information, the judge was required to examine whether such information was “compelling, credible and corroborated”. [19] Thus, taken alone, information from a CI will be insufficient to establish reasonable and probable grounds. [20] [ 30 ] As to the confirmatory elements, these need not necessarily be directly connected to the commission of the crime alleged in the ITO – i.e. the question to be answered is whether there is some evidence that might reasonably be believed to support the issuance of the warrant. [21] [ 31 ] Justice Wilson put it this way some years ago: In my opinion, it should not be necessary for the police to confirm each detail in an informant's tip so long as the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence.

As I noted earlier, however, the level of verification required may be higher where the police rely on an informant whose credibility cannot be assessed or where fewer details are provided and the risk of innocent coincidence is greater. (…) [22] [ 32 ] Did the ITO establish reasonable and probable grounds for the issuance of a warrant to search Respondent’s home in connection with drug trafficking? [ 33 ] After excision of the conversations intercepted at the law firm, the only elements linking Respondent to drug trafficking were contained in information obtained from the CI, which the judge analyzed extensively.

This is the extent of the content of the ITO concerning Respondent stemming from the CI: 96.1 […] Italiens décideurs qui sont Tonino CALLOCCHIA, Stefano SOLLECITO alias Steve, Vito SALVAGGIO et Leonardo RIZZUTO […] 96.5 Leonardo RIZZUTO et Loris CAVALIERE sont des avocats et utilisent leur statut afin de passer différents messages à différents membres du crime organisé, que ce soit la mafia italienne, les Hell’s Angels ou les membres des gangs de rue. [ 34 ] The following is the content of the ITO relating directly to the issue of the CI’s reliability: Profil et fiabilité de la source « JJ » 97.

La source « JJ » collabore […] avec la Sûreté du Québec. Ses contrôleurs sont les S/D Christian OUIMET et Martin ROBERT. 98. Depuis son activation, la source « JJ » a rencontré son contrôleur à plusieurs reprises et lui a transmis de l'information notamment en matière de trafic de stupéfiants. […] 99. Certaines informations reçues par la source « JJ » ont été vérifiées et corroborées par différentes méthodes d'enquête et ont permis la progression de dossiers d'enquête sur des sujets connus du crime organisé qui en font une source fiable et digne de confiance.

100. Cette source n'a obtenu aucune rémunération à ce jour. Sa motivation est la vengeance. [ 35 ] The Court of Québec judge found little indication of reliability in this. In the ITO, the CI did not state how he knew that Respondent is an Italian leader and passes messages.

Some objective confirming facts were required. [23] The ITO contained no direct information on the three C’s test (credible, compelling, corroborative) of the CI information other than that quoted above. [ 36 ] Having found no direct indicia of the CI’s reliability, the judge widened her examination of the ITO to find confirmation of the information that Respondent is an Italian leader and passes messages. In such regard, she examined: (

i) allegations concerning Greg Wooley, who was implicated in drug trafficking and in whose presence Respondent had been seen; (ii) an intercepted conversation between Loris Cavaliere and his wife on the subject of different criminal groups; and (iii) various other intercepted conversations. On the whole, the judge found no confirmation of the CI’s assertion that Respondent is an Italian leader. His presence in the company of Wooley or Sollecito, in itself, was not sufficient, because even if Respondent knew these individuals were drug traffickers, this did not tie Respondent to such activities.

Reasoning that infers guilt by association should be avoided. [24] Finally, the judge found no allegation that would support an inference that Respondent himself possessed an encrypted cell phone, a device associated with drug trafficking. [ 37 ] Having found no content in the ITO that linked Respondent to drug trafficking and which could confirm the CI’s statements or indicate the CI’s reliability, the judge did not err in concluding that there was no probable cause to search Respondent’s home in connection with drug trafficking once, of course, the conversations intercepted at the law firm were excised from the ITO. [ 38 ] The judge even conceded that the time elapsed (approximately 1 year) since the information concerning Respondent had been obtained from the CI did not per se exclude the possibility that it was reliable.

Nevertheless, as summarized above, no confirmatory information could be gleaned from the ITO. (iii) Exclusion of the evidence pursuant to s. 24(2) of the Charter [ 39 ] Appellant argues that the judge erred in focusing on the police conduct in the execution of the wiretaps at the law firm. Rather, says Appellant, we should consider that the ITO affiant did not fail to reveal any relevant fact of which he was aware, because when he swore his affidavit he thought he was acting on the basis of information collected in virtue of an authorized warrant.

The Downs judgment condemning the manner in which the warrant for the wiretapping at the law office was executed came later. [ 40 ] The principles underpinning the application of s. 24(2) of the Charter are not in dispute. When evidence is obtained in violation of rights protected under the Charter , it is excluded where, having regard to all of the circumstances, its use in the proceedings would bring the administration of justice into disrepute.

This is an objective inquiry with a view to maintaining the integrity of, and public confidence in, the justice system , [25] and requires that three concerns be balanced: (1) the seriousness of the Charter -infringing conduct; (2) the impact of the breach of the Charter -protected interest on the accused; and (3) society’s interest in the adjudication of the case on its merits. [26] [ 41 ] In appeal, the standard of review is one of deference, so that where a judge has considered the proper factors and not made an unreasonable finding, an appellate court should not intervene. [27] [ 42 ] The judge noted the finding of Downs, J.S.C., that the failure of the police to respect solicitor-client privilege constituted serious misconduct.

In considering the seriousness of the police misconduct, as she was bound to do, [28] the judge took the Downs judgment into account. The judge could not, in the circumstances of the case, simply ignore the findings in that judgment. To do so would have simply been unreasonable. We underline that the Downs judgment was not appealed. Appellant’s position would have us condone a collateral attack on it. [ 43 ] Moreover, ignoring the Charter violations because the affiant did not know about them absolves the police of the obligation to respect Charter -protected rights.

Considering the second Grant 2009 criterion, the judge noted that the illegal search took place in Respondent’s residence, where the expectation of privacy is of the highest order. There is no reviewable error here. [ 44 ] On the third criterion, namely society’s interest in an adjudication on the merits, it is ironic that Appellant persists, because, as the preceding analysis demonstrates, the ITO does not connect Respondent to the criminality of drug trafficking, and Downs, J.S.C., dismissed the conspiracy charge.

Appellant, however, posits that there is an overriding interest that the firearm charge be adjudicated on the merits, notwithstanding that it did not appeal Downs, J.S.C.’s dismissal of the conspiracy charge. In any event, given the gravity of the Charter violations, the judge’s conclusion that the use of the evidence would bring the administration of justice into disrepute is free of reviewable error. [ 45 ] One last comment regarding the third branch of the Grant 2009 test stems from the judge’s reliance on R. v.

Omar , [29] where the Ontario Court of Appeal excluded a seized handgun from evidence under s. 24(2) of the Charter . In a 4 to 3 ruling, however, the Supreme Court of Canada reversed that decision for the reasons of Brown, J.A., dissenting in the Ontario Court of Appeal. [30] Brown, J.A., had decided that the danger posed to society by the presence of loaded handguns presented an overriding imperative under the third consideration of the Grant 2009 principles.

In Omar , society’s interest in prosecuting and the focus of Brown, J.A.’s dissenting remarks were driven by the notion of individuals walking city streets in possession of loaded pistols. The loaded gun seized in the case at bar was found by the police inside the Respondent’s home. Without in any way seeking to diminish the gravity of firearms offences, the concern in the case at bar for purposes of the third branch of the Grant 2009 test is substantially different than that stemming from the factual context in Omar .

Moreover, the Charter violation being balanced in Omar was a s. 9 infringement involving an illegal arrest or an unwarranted “stop and search” on the street conducted by the police, in good faith. The overall circumstances of the factors to be considered in applying s. 24(2) of the Charter obviously differ materially from those of the case at bar. Thus, the judge’s reliance on Omar is not erroneous and, even if it were, it is not overriding. [ 46 ] In the present case, as noted in R. v.

Paterson , it is “important not to allow the third Grant 2009 factor of society’s interest in adjudicating a case on its merits to trump all other considerations” such as the justice system demonstrably disassociating itself from police misconduct. [31]

[ 47 ] Finally, as our Court observed in Cormier v. R. , “[i]t is now well settled that where the first two criteria militate strongly in favour of exclusion the third will rarely compel admission of evidence obtained in violation of the Charter ”. [32] * * * FOR ALL THESE REASONS, THE COURT: [ 48 ] DISMISSES the appeal. ALLAN R. HILTON, J.A. MARK SCHRAGER, J.A. PATRICK HEALY, J.A. Mtre Marie-Christine Godbout Mtre Magalie Cimon DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For Appellant Mtre Frank Addario Mtre James Foy ADDARIO LAW GROUP Mtre Dominique Shoofey ME DOMINIQUE SHOOFEY For Respondent Date of hearing: April 13, 2021