R. v. Garofoli  2 S.C.R. 1421: Interception of private communications -- Judge failing to include minimization clause in wiretap authorizations -- Whether authorizations violate s. 8 of Canadian Charter -- Grounds for challenging authorizations and appropriate remedies -- Protection of identity of informers -- Admissibility of evidence
Present: Dickson C.J. 1 and Lamer C.J. 2 and La Forest, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Criminal law -- Interception of private communications -- Access to sealed packet -- Validity of wiretap authorizations -- Grounds for challenging authorizations and appropriate remedies -- Protection of identity of informers -- Editing of affidavits -- Entitlement of accused to cross-examine on affidavits -- Criminal Code, R.S.C. 1970, c. C-34, Part IV.1.
Criminal law -- Interception of private communications -- Admissibility of evidence -- Relationship between s. 178.16 of Criminal Code and s. 24(2) of Canadian Charter of Rights and Freedoms.
Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Interception of private communications -- Judge failing to include minimization clause in wiretap authorizations -- Whether authorizations violate s. 8 of Canadian Charter of Rights and Freedoms.
Appellant was charged with conspiring to import a narcotic. The evidence against him was derived largely from private communications intercepted pursuant to wiretap authorizations. At the conclusion of a voir dire to determine the admissibility of the intercepted communications, the trial judge refused to order the opening of the sealed packets containing the affidavits upon which the authorizations were granted and found the wiretap evidence to be admissible. He convicted appellant. Relying on its decision in Playford, released after the trial judge's ruling, the Court of Appeal found that appellant was entitled to have access to the sealed packets. The affidavits were edited to protect confidential informants and then released to him. The court found that the editing did not impair counsel's ability to determine the facial validity of the affidavits, that the affidavits set out sufficient indicia of reliability of the informant involved, and that they set out ample facts to meet constitutional requirements for a reasonable search and seizure. Since appellant had not shown that the affiant had made a false statement knowingly and intentionally, or with reckless disregard for the truth, he was not entitled to cross-examine him. The court concluded that the trial judge's refusal to permit appellant to have access to the affidavits did not result in a miscarriage of justice and upheld the conviction. The main issues on this appeal are whether the accused is entitled to access to the material in the sealed packet; on what terms an accused may challenge an authorization for wiretap; special requirements relating to informants; the procedure for editing affidavits in the sealed packet; whether the accused is entitled to cross-examine on the affidavits; and whether the authorizing judge's failure to include a minimization clause resulted in authorization of an unreasonable search and seizure in violation of s. 8 of the Canadian Charter of Rights and Freedoms.
Held (L'Heureux-Dubé and McLachlin JJ. dissenting): The appeal should be allowed.
Per Dickson C.J. and Lamer C.J. and La Forest, Sopinka and Gonthier JJ.: The Court of Appeal was right to open the sealed packets since the accused is entitled, subject to editing, to have their contents produced in order to enable him to make full answer and defence.
Since wiretaps constitute a search or seizure, the statutory provisions authorizing them must conform to the minimum constitutional requirements demanded by s. 8 of the Canadian Charter of Rights and Freedoms. The issuing judge must be satisfied that there are reasonable and probable grounds to believe that an offence has been or is being committed, and that the authorization sought will afford evidence of that offence.
The procedures available for challenging a wiretap authorization are: (1) a Parsons voir dire before the trial judge to determine whether the authorization is valid on its face, the remedy being exclusion under s. 178.16 of the Code; (2) a Wilson application before the issuing court to determine the substantive or subfacial validity of the affidavit, the remedy being the setting aside of the authorization; (3) a Garofoli hearing before the trial judge to determine whether the authorization complies with s. 8 of the Charter, the remedy being a determination of whether the evidence should be excluded under s. 24(2) of the Charter; and (4) a Vanweenan hearing before the trial judge to determine whether the authorization names all "known" persons as required by ss. 178.12(1)(e) and 178.13(2)(c) of the Code, the remedy being exclusion under s. 178.16.
When it is asserted by an accused that a wiretap infringes s. 8 of the Charter, the application for review should be made to the trial judge, even though applications to open the sealed packed must be made to a judge designated in s. 178.14(1)(a)(ii) of the Code, who in some cases will not be the trial judge. In determining whether a search is reasonable under s. 8 of the Charter, the reviewing judge must determine whether the Code requirements have been satisfied, since the statutory conditions are identical to the requirements of s. 8. Whereas Wilson precluded a review of the authorizing judge's decision that the statutory conditions had been complied with, unless some ground such as fraud or new evidence was established, the application of s. 8 requires review as a step in determining the reasonableness of the search and seizure. If, based on the record, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he should not interfere. A finding that the interception is unlawful attracts the peremptory language of s. 178.16 and the evidence is inadmissible. Section 24(2) of the Charter cannot have the effect of making the evidence admissible even if its admission would not bring the administration of justice into disrepute. Accordingly, an accused who has invoked s. 24 and established that an interception was unlawfully obtained is entitled to have the evidence excluded under s. 178.16.
Hearsay statements of an informant can provide reasonable and probable grounds to justify a search, but evidence of an informer's tip, by itself, is insufficient to establish reasonable and probable grounds. The reliability of a tip is to be assessed by having regard to the totality of the circumstances. The results of the search cannot, ex post facto, provide evidence of the reliability of the information.
The courts clearly have a power to edit derived from the supervising and protecting power they have over their own records. In determining what to edit, the judge will have regard for the rule against disclosure of police informers, subject to the "innocence at stake" exception. The determination in each case will require a balancing of the relevance of the identity of the informer to the accused's case against the prejudice to the informer and to the public interest in law enforcement which disclosure would occasion.
The preconditions for cross-examination of the affiant imposed by the Court of Appeal, based largely on the American case of Franks v. Delaware, are too restrictive. This Court has consistently protected the right to cross-examine. The concerns regarding protection of the identity of informers and prolongation of proceedings can be accommodated without such a drastic curtailment of the right. There is no right to cross-examine informers, since they are not witnesses and cannot be identified unless the accused brings himself within the "innocence at stake" exception. Leave to cross-examine should be granted at the discretion of the trial judge, who may impose limitations on its scope, when he is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. The accused must establish a basis for the view that cross-examination will oppugn the existence of one of the preconditions for the authorization.
Appellant has shown a basis for cross-examination here. In view of the degree of reliance by the police on the informer in this case, if the informer is discredited then the factual basis for the authorization is undermined. Since appellant was not permitted to cross-examine the affiant, there should be a new trial.
The failure of the authorizing judge to impose conditions minimizing the interception of irrelevant communications does not result in the authorization of an unreasonable search and seizure in violation of s. 8 of the Charter. An absolute requirement of live monitoring in all cases would impose too heavy a burden on Canadian law enforcement officials. While a requirement of live monitoring or visual confirmation would generally be appropriate when telephone calls are to be intercepted at public pay telephones, the same considerations do not apply with respect to the private residence of a person named in an authorization unless there are special circumstances calling for live monitoring, and appellant has not satisfied the Court that any special considerations are involved here.
Per L'Heureux-Dubé and McLachlin JJ. (dissenting): Since the power of a judge to grant a wiretap authorization subject to the preconditions set out in s. 178.13(1) of the Code must be exercised in conformity with the Charter, the section should be read so as to require that the judge be satisfied that there are reasonable grounds to believe that the specified offence has been or is being committed, and that evidence of the offence will be obtained by the interception sought. Apart from this limitation on a judge's ability to authorize a wiretap, the direct protection for individuals comes from two sources: s. 178.16(1)(a) of the Code, which states that to be admissible in evidence an electronic interception must have been "lawfully made", and s. 24(2) of the Charter, which provides for the exclusion of evidence where the evidence was obtained in a manner that infringed a Charter right and it is established that its admission would bring the administration of justice into disrepute. An accused seeking to exclude evidence of an interception has two remedies: (1) a Wilson application to a superior court to set aside the authorization, thereby rendering the interception not "lawfully made" within the terms of s. 78.16(1)(a); and (2) a Garofoli application before the trial judge (often a provincial court judge) for exclusion of the intercepted evidence on the ground that it constitutes an unreasonable search and seizure under s. 8 of the Charter and its admission would tend to bring the administration of justice into disrepute under s. 24(2). The question of whether the packet should be opened is a matter within the discretion of the judge hearing the application, who must balance the interests of the accused in the protection of privacy and a fair trial, including the right to make full answer and defence, with the public interest in the administration of justice. Given the importance of the accused's right to make full answer and defence, the balance will generally fall in favour of opening the packet, subject to editing and special concerns for the administration of justice which may arise in particular cases. Here the Court of Appeal held that the packet should have been opened, subject to editing, and the balance in this case mandates that conclusion.
In deciding whether the accused may cross-examine on the affidavit, the judge must again balance the interests of the accused with the public interest in the administration of justice. Given that cross-examination may present greater problems for the administration of justice and less importance, from the point of view of ensuring a fair trial, than does access to the packet, the balance will generally favour denial unless the accused is able to make a preliminary showing establishing the special relevance of the cross-examination. In this case appellant has not established that cross-examination was likely to assist him in presenting a full answer and defence, and it posed risks of disclosure of confidential police information and of lengthening the proceedings to no purpose. In these circumstances the balance clearly favours rejection of the right to cross-examine.
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