Present: Lamer C.J. and L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Major JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Interception of private communications ‑‑ Opening of sealed packet ‑‑ Editing of affidavits ‑‑ Whether reviewing judge erred in his editing procedure and in determining what to edit ‑‑ Whether accused's right to make full answer and defence denied.
Constitutional law ‑‑ Charter of Rights ‑‑ Right to make full answer and defence ‑‑ Interception of private communications ‑‑ Opening of sealed packet ‑‑ Editing of affidavits ‑‑ Whether reviewing judge's editing of affidavits deprived accused of right to make full answer and defence ‑‑ Canadian Charter of Rights and Freedoms, ss. 7 , 11(d) .
The accused were charged with offences involving conspiracy to traffic in controlled drugs and narcotics. A substantial part of the evidence against them consisted of recordings of telephone conversations intercepted pursuant to nine wiretap authorizations. The District Court judge presiding at the trial granted the accused's application to open the packets containing the material filed in support of the authorizations, stated his intention to remove the affidavits and advised counsel of the procedure he was adopting to edit the affidavits. No counsel objected to the proposed procedure. The trial judge initially edited the affidavits on his own according to his understanding of the principles set out in Parmar and, in his opinion, made deletions "only insofar as [the affidavits] contain information from informants and others which is to be protected, and insofar as they contain summary or opinion". He proceeded to review the edited affidavits with the Crown and accepted its submissions as to the nature and extent of the editing. The accused and their counsel were present throughout this exercise. The edited affidavits were distributed to defence counsel who made submissions regarding the deletions. The trial judge mentioned again that he had only deleted informants' information and, in one or two cases, some "commentary". He did not accede to defence counsel's requests for more information as to the content of the affidavits, although he did inform them as to whether the accused were named in the deleted portions of the affidavits and proceeded to list those accused in the deleted portions of the nine affidavits. When defence counsel pointed out that the deletions by the trial judge went beyond those made from the same affidavits by the judge who presided over an earlier trial of a first group of accused, the trial judge indicated that the editing of the other judge was irrelevant to his editing task. The accused filed a Wilson application to set aside the seven District Court authorizations. At the hearing, the accused cross‑examined for nine full days the three police officers who swore the affidavits in support of the authorizations but were not allowed to cross‑examine the "sub‑affiants" who supplied information to them. However, the trial judge granted the accused leave to call two additional police officers as witnesses. At the conclusion of the hearing, the trial judge dismissed the application. The accused then brought a motion to quash this ruling and sought prohibition in the Ontario Supreme Court to prevent the trial judge from admitting primary evidence obtained from the District Court authorizations. This motion was dismissed. Concurrently, the accused brought a second Wilson application to set aside the two Ontario Supreme Court authorizations. The judge edited the affidavits filed in support of these authorizations less extensively than the trial judge and dismissed the application. The trial resumed and the accused were convicted. The majority of the Court of Appeal upheld the convictions. The issue in this Court is whether the trial judge's editing of the affidavits prevented a proper and full inquiry into the validity of the authorizations, thereby depriving the accused of the right to make full answer and defence as guaranteed by ss. 7 and 11( d ) of the Canadian Charter of Rights and Freedoms .
Held (L'Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting): The appeals should be allowed and a new trial ordered.
Per Lamer C.J. and Sopinka, Cory and Major JJ.: The Charter guarantee of the right to make full answer and defence requires that, as a general rule, all relevant information in the possession of the state be disclosed to an accused. Accordingly, when determining whether the contents of wiretap affidavits should be disclosed to an accused, full disclosure should also be the rule subject to certain exceptions. To justify non‑disclosure, the Crown must show that disclosure will prejudice the interests of informants, innocent persons or law enforcement authorities and that such prejudice overbears the interests of the accused. When non‑disclosure is justified, the affidavits should only be edited to the extent necessary to protect these overriding public interests. While trial judges must be granted some discretion to determine what editing is required to ensure that the public interest is protected, that discretion does not include the power to edit material whose continued confidentiality clearly is not justified by any of the public interest concerns in non‑disclosure. Here, the trial judge did not comply with Parmar in editing the affidavits more extensively than was necessary to protect the public interest. The affidavits as edited by the judge who presided over the earlier trial were relevant and should have been the starting point for the trial judge. In editing out from the same affidavits information that had not been edited by the other judge, and was therefore public, the trial judge ignored the basic rule of non‑disclosure that it is only confidential information that qualifies. Furthermore, the trial judge excised not only information which might tend to identify informants, but also information obtained from informants and others, and material which he characterized as "commentary", "summary" or "opinion". Editing is to be kept to a minimum and this principle clearly was not respected in this case. Given the conclusion that the trial judge did not comply with the principles set out in Parmar, subsequently approved of by this Court in Garofoli, in determining what to edit, it is unnecessary to decide whether or not the procedure adopted by the trial judge in editing the affidavits was in accordance with the procedure suggested by the authorities.
By showing that the trial judge excised a substantial amount of material whose continued confidentiality could not be justified on the basis of the factors set out in Parmar, the accused have established prima facie that their ability to make full answer and defence was prejudiced in that they were denied the opportunity to conduct a full inquiry into the validity of the wiretap authorizations challenged before the trial judge. The accused should not be required to demonstrate the specific use to which they might put information which they have not even seen. The Crown has not been able to establish that no prejudice occurred and an appellate court which does not have the benefit of access to counsel's brief cannot be expected to speculate in these circumstances. While the affidavits as edited by the trial judge disclosed sufficient grounds to sustain the relevant authorizations, the material contained in the excised portions of the affidavits could be used to impugn the contents of the affidavits which have been disclosed. In the absence of overriding policy concerns which justified confidentiality, the accused were entitled to have the opportunity to use the deleted material in this fashion. Even though the trial judge reviewed the material which had been deleted from the affidavits in assessing the validity of the authorizations, this judicial screening of the material which was improperly withheld from the accused did not cure the failure to make proper disclosure. The fact that the trial judge may not have seen how the excised material could have assisted the accused does not necessarily mean that defence counsel would not have found a way to use that material to their advantage.
The trial judge erred in editing the affidavits in such a way that the accused were denied the right to make full answer and defence and this error cannot be cured by the application of s. 686(1)(b)(iii) of the Criminal Code . It is impossible to say that the verdicts against the accused would necessarily have been the same if the defence had succeeded in establishing that even one of the impugned authorizations was invalid.
Per L'Heureux‑Dubé, Gonthier and McLachlin JJ. (dissenting): The procedure followed by the trial judge and his editing of the affidavits did not deprive the accused of their right to make full answer and defence as guaranteed by ss. 7 and 11( d ) of the Charter . In drug trafficking and conspiracy cases, the balance between the protection of both society and informers and the respect of the individual rights of the accused has been struck in s. 187 of the Criminal Code and these rules were respected in this case.
The trial judge did not err in editing the affidavits on his own before receiving any submissions in open court from the Crown as to the nature of the matters to be edited and the basis therefor. The procedure for the disclosure of the contents of wiretap affidavits to an accused was set out by this Court in Garofoli after the trial in this case and it was not intended to be exclusive or exhaustive. Here, the trial judge followed Parmar, which was regarded as setting out the proper procedure at the time. The Crown was consulted and had an input during the editing process, and the trial judge remained open to suggestions by both counsel, who were present throughout the exercise. As long as the Crown has the opportunity to effectively indicate its position with respect to the editing, it is not material whether its submissions are made before or after the editing.
The trial judge's failure to provide judicial summaries of his deletions did not impair the accused's case. No request was made for the summaries at the time of the editing and no specific reason was given or facts demonstrated by the accused with respect to the need for summaries in the circumstances of this case.
In editing the affidavits, a trial judge must decide in his discretion what portions should be edited and to what extent, bearing in mind the protection of the interests of the state in its investigation techniques and in non‑disclosure of informers' identity. Such discretion is not only subjective, but depends on the facts and the context of the case. While, in some circumstances, deleting the names and addresses of informers will be sufficient for their protection, this is not necessarily so in each case. The protection of police informers is crucial to the proper administration of justice and the slightest detail that might help identify an informer must be deleted, especially as here in cases of drug‑related offences and organized networks of narcotic distribution. In balancing the interests of the accused and the public interest in the administration of justice, the trial judge deleted information from informers from the affidavits on the basis that such information was likely to lead to their identification. In so doing, the trial judge was perhaps overly cautious in his attempt to protect the identity of the informers and the nature of the undercover operation. Nevertheless, this was within his discretion and could not amount to an error of law in the absence of a denial of justice or of full and fair defence.
The specific issue of possible loss of confidentiality of some informers was not raised when the accused had an opportunity to present submissions with respect to the trial judge's editing and they cannot today, without more, challenge the deletions of information identifying informers whose identity may no longer have been confidential by the time of the trial. At the time of the editing, there was no way for the trial judge to know whether, at the time of trial, such confidentiality would become unnecessary. Nothing in the record indicates that the trial judge was informed that the material in the affidavits edited out by the judge who presided over the earlier trial was not, or had ceased to be, confidential and, therefore, could be released. The trial judge could not have presumed, at the time of his editing, that the version of the affidavits as edited and released at the earlier trial was not confidential anymore.
While the deletions of immaterial information ("commentary", "summary" or "opinion") may be more questionable, these deletions were minor and were irrelevant as a basis for the issuing of the authorizations. Moreover, this falls within the trial judge's discretion and it is not enough to constitute unfairness and warrant a new trial.
The argument that material contained in excised portions of affidavits could have assisted accused is largely self‑defeating and simply ignores the continuing need for confidentiality.
Finally, a comparison of the editing made by other judges with the editing made by the trial judge on the same affidavits is not relevant. In the exercise of their discretion, judges might hold different views and come to different conclusions. As long as the exercise of discretion is made judiciously and judicially, there is no ground for reproach.
There is therefore nothing in the treatment of the sealed packets by the trial judge which constituted a reviewable error. Even assuming that his deletions were excessive to the point of amounting to an error, however, no prejudice resulting from those deletions was demonstrated. Despite a lengthy cross‑examination of the affiants and two additional witnesses, the accused were unable to demonstrate that the authorizations were facially deficient, that the edited affidavits failed to set out reasonable and probable grounds or that the affiants committed fraud, misleading disclosure or non‑disclosure in their request for the wiretap authorizations. Counsel for the accused recognized in this Court that had the affidavits submitted to the judge in order to obtain the authorizations been the edited affidavits, such affidavits would have been sufficient for the issuing of the authorizations. In these circumstances, no prejudice can be found. The purpose of a review is to ascertain that the authorizations were properly issued, not to permit accused to go on fishing expeditions to attempt to identify informers, which would be an abuse of the process in itself. The grounds of appeal did not reveal any miscarriage of justice and were worded in pure legal technicalities which have no bearing on the innocence or the guilt of the accused.
Cases Cited
By Sopinka J.
Applied: R. v. Parmar (1987), 34 C.C.C. (3d) 260; R. v. Garofoli, [1990] 2 S.C.R. 1421; referred to: R. v. Stinchcombe, [1991] 3 S.C.R. 326; Wilson v. The Queen, [1983] 2 S.C.R. 594; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1; R. v. Egger, [1993] 2 S.C.R. 451.
By L'Heureux‑Dubé J. (dissenting)
Wilson v. The Queen, [1983] 2 S.C.R. 594; R. v. Parmar (1987), 34 C.C.C. (3d) 260; Franks v. Delaware, 438 U.S. 154 (1978); R. v. Parmar (1987), 37 C.C.C. (3d) 300; R. v. Parmar (1989), 53 C.C.C. (3d) 489; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Garofoli, [1990] 2 S.C.R. 1421, rev'g (1988), 41 C.C.C. (3d) 97 (Ont. C.A.); R. v. Lachance, [1990] 2 S.C.R. 1490, rev'g (1988), 27 O.A.C. 45; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505, rev'g (1987), 36 C.C.C. (3d) 435 (B.C.C.A.), aff'g (1986), 32 C.C.C. (3d) 346 (B.C.S.C.); R. v. Zito, [1990] 2 S.C.R. 1520, aff'g (1988), 42 C.C.C. (3d) 565 (Que. C.A.); R. v. Playford (1987), 40 C.C.C. (3d) 142; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1; R. v. Rowbotham (1984), 42 C.R. (3d) 164; Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516, aff'g [1953] 1 D.L.R. 385 (B.C.C.A.); Maynard v. Maynard, [1951] S.C.R. 346; Badar Bee v. Habib Merican Noordin, [1909] A.C. 615; Gibson v. Le Temps Publishing Co. (1903), 6 O.L.R. 690; R. v. Welsh and Iannuzzi (No. 6) (1977), 32 C.C.C. (2d) 363; R. v. Meltzer, [1989] 1 S.C.R. 1764; Re Royal Commission Inquiry into the Activities of Royal American Shows Inc. (No.3) (1978), 40 C.C.C. (2d) 212; Re Miller and Thomas and The Queen (1975), 23 C.C.C. (2d) 257; R. v. Cheng (1976), 33 C.C.C. (2d) 441; R. v. Madden, Ont. Co. Ct., April 28, 1977, unreported; R. v. Wai Ting Li (No.1), [1976] 6 W.W.R. 128; R. v. Haslam (1976), 3 C.R. (3d) 248; Re Stewart and The Queen (1976), 30 C.C.C. (2d) 391; Re Regina and Kozak (1976), 32 C.C.C. (2d) 235; Re Regina and Collos (1977), 37 C.C.C. (2d) 405; R. v. Gill (1980), 18 C.R. (3d) 390; Cloutier v. The Queen, [1979] 2 S.C.R. 709; McKercher v. Vancouver‑Iowa Shingle Co., [1929] 4 D.L.R. 231; Wright v. Doe (1837), 7 AD. & E. 313, 112 E.R. 488; R. v. Sabloff, J.E. 80‑73; Re Donnelly and Acheson and The Queen (1976), 29 C.C.C. (2d) 58; R. v. Sklar, B.C.S.C., October 17, 1975, unreported; R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48 (Ont. C.A.), leave to appeal refused, [1986] 1 S.C.R. ix; R. v. Ross (1985), 26 C.C.C. (3d) 264; R. v. Wood (1986), 26 C.C.C. (3d) 77; R. v. Martel (1986), 27 C.C.C. (3d) 508; R. v. Stacey, Ont. H.C., May 20, 1986, unreported; R. v. Birt and Anderson (1986), 31 C.C.C. (3d) 176; R. v. Madsen and Scobel (1986), 31 C.C.C. (3d) 249; R. v. Graves (1987), 31 C.C.C. (3d) 552; R. v. Pascoe (1987), 32 C.C.C. (3d) 61; R. v. Martin (1986), 32 C.C.C. (3d) 257; R. v. Stensrud and Smith (1987), 56 Sask. R. 44; Bisaillon v. Keable, [1983] 2 S.C.R. 60; Roviaro v. United States, 353 U.S. 53 (1957); McCray v. Illinois, 386 U.S. 300 (1967); Colorado v. Nunez, 465 U.S. 324 (1984); United States v. Cantor, 470 F.2d 890 (1972); United States v. D'Alfonso, 357 F. Supp. 1341 (1973); People v. Sturgis, 352 N.Y.S.2d 942 (1973); United States v. Garramone, 374 F. Supp. 256 (1974); United States v. Danovaro, 877 F.2d 583 (1989); State of New Jersey v. Garcia, 618 A.2d 326 (1993); Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), [1981] 2 S.C.R. 494; R. v. Hunter (1987), 34 C.C.C. (3d) 14; R. v. Scott, [1990] 3 S.C.R. 979; Rathwell v. Rathwell, [1978] 2 S.C.R. 436; R. v. Grant, [1993] 3 S.C.R. 223.
Statutes and Regulations Cited
Act to amend the Criminal Code, the Crown Liability and Proceedings Act and the Radiocommunication Act, S.C. 1993, c. 40, s. 7.
Canadian Charter of Rights and Freedoms , ss. 7 , 11( d ) .
Criminal Code, R.S.C. 1970, c. C‑34, s. 178.14(1)(a)(ii) [en. 1973‑74, c. 50, s. 2; am. 1985, c. 19, s. 24].
Criminal Code , R.S.C., 1985, c. C‑46 , ss. 187 [am. c. 27 (1st Supp.), s. 24], 686(1)(b)(iii) [am. 1991, c. 43, s. 8], 691(1)(a).
Criminal Law Amendment Act, 1985, R.S.C., 1985, c. 27 (1st Supp.).
Protection of Privacy Act, S.C. 1973‑74, c. 50, s. 2.
Authors Cited
Bellemare, Daniel A. L'écoute électronique au Canada. Montréal: Yvon Blais, 1981.
Cohen, Stanley A. Invasion of Privacy: Police and Electronic Surveillance in Canada. Toronto: Carswell, 1983.
Cross, Rupert, Sir. Cross on Evidence, 7th ed. By the late Sir Rupert Cross and Colin Tapper. London: Butterworths, 1990.
Halsbury's Laws of England, vol. 17, 4th ed. London: Butterworths, 1976.
LaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment, vol. 1, 2nd ed. St. Paul: West Publishing Co., 1987 & Supp. 1993.
Watt, David. Law of Electronic Surveillance in Canada. Toronto: Carswell, 1979.
Wigmore, John Henry. A Treatise on the Anglo‑American System of Evidence in Trials at Common Law, vol. 1, 3rd ed. Boston: Little, Brown & Co., 1940.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston: Little, Brown & Co., 1961.
APPEALS from a judgment of the Ontario Court of Appeal (1992), 9 O.R. (3d) 557, 54 O.A.C. 81, 72 C.C.C. (3d) 421, dismissing the accused's appeals from their convictions for drug offences. Appeals allowed and new trial ordered, L'Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting.
Frank Addario, for the appellant Farinacci.
David E. Harris, for the appellant Lépine.
James Lockyer, for the appellant Jeffreys.
Robert W. Hubbard and Scott K. Fenton, for the respondent.
The judgment of Lamer C.J. and Sopinka, Cory and Major JJ. was delivered by
Sopinka J. -- These appeals concern the application of the principles set out in R. v. Parmar (1987), 34 C.C.C. (3d) 260 (Ont. H.C.), and R. v. Garofoli, [1990] 2 S.C.R. 1421, relating to the editing of affidavits filed in support of applications for authorizations to intercept private communications (hereinafter "wiretap authorizations") having regard to the obligation of the Crown to disclose developed in this Court's judgment in R. v. Stinchcombe, [1991] 3 S.C.R. 326.
I.Facts
The appellants were among some 80 individuals simultaneously arrested on January 22, 1985 after the culmination of a police investigation into the manufacture and distribution of illicit drugs by members of two motorcycle clubs.
The Crown initially laid a single information against 61 individuals charging them with conspiracy to traffic in methamphetamine, cocaine and LSD. A preliminary hearing was scheduled for December 2, 1985. However, in November 1985 the Honourable John Crosbie, Minister of Justice and Attorney General of Canada, preferred two indictments, replacing the original information and cancelling the preliminary hearing. One indictment was presented in the Supreme Court of Ontario and named 12 accused. The other indictment was presented in the District Court of Ontario and named 27 accused including the appellants. The appellants Farinacci and Lépine were jointly charged with one count of conspiracy to traffic in methamphetamine between October 1, 1983 and January 23, 1985. The appellant Jeffreys was charged with one count of conspiracy to traffic in cocaine between June 1, 1983 and January 23, 1985.
The trial in the Supreme Court of Ontario proceeded first. It began on June 2, 1986 before Bowlby J. Verdicts were rendered on February 27, 1987.
The appellants and seven other accused were tried in the District Court of Ontario before Judge O'Connell and a jury. That trial began on May 11, 1987. Pre-trial motions were heard throughout May, June and September. Verdicts were rendered on June 11, 1988. The appellants Farinacci and Lépine were convicted of conspiracy to traffic in methamphetamine. The appellant Jeffreys was convicted of conspiracy to traffic in cocaine. The evidence against the appellants consisted of testimony from informant witnesses, results of physical surveillance and recordings of telephone conversations.
One of the pre-trial motions entertained by the trial judge was a "Wilson" motion (named after the decision of this Court in Wilson v. The Queen, [1983] 2 S.C.R. 594) in which the appellants challenged the validity of seven wiretap authorizations which permitted the police to intercept their telephone conversations. The impugned authorizations were granted by Judge Scott of the District Court of Ontario. Two other authorizations were granted by Trainor and Ewaschuk JJ., both of the Supreme Court of Ontario.
Prior to the Wilson hearing, the trial judge ordered the packets containing the material filed in support of all the authorizations to be opened. He then stated his intention to remove the affidavits from the sealed packet and edit them. He explained that after editing the affidavits himself he would give a copy of the edited affidavits to the Crown to determine if further editing needed to be done. He would then give copies to counsel for the various accused and hear any "suggestions" they had about the affidavits.
After the adjournment, the trial judge indicated that he had read each affidavit in light of the decision in Parmar. He claimed to have edited the affidavits "only insofar as they contain information from informants and others which is to be protected, and insofar as they contain summary or opinion". He then proceeded to review the edited affidavits with the Crown, who suggested a few additional deletions. In a few instances the Crown indicated that material edited by the trial judge could be disclosed. These suggestions were adopted by the trial judge. The accused and their counsel were present throughout this exercise.
The trial judge then proposed to distribute the edited affidavits to counsel. However, before this took place, counsel for the appellant Farinacci made a submission requesting "all information contained in these affidavits, other than the specific name and identifying address, or the like of anybody who purports to be in the position of an informant or informer, as the case may be". The Crown argued that this submission was premature. The trial judge agreed. At that point counsel for the appellant Jeffreys requested clarification of the procedure which the trial judge intended to follow. He specifically asked whether the appellants would "have some input to request further information from the affidavits". The trial judge made it clear that the next step in the process was that the defence would receive copies of the edited affidavits and then the actual Wilson hearing would proceed.
Once the edited affidavits were distributed to counsel, but before reviewing them, counsel for the appellant Farinacci, relying heavily on the decision in Parmar, re-asserted the right of the defence to the deleted information. Counsel for the appellant Jeffreys requested an indication of the basis upon which the deletions were made. The trial judge then suggested that every deletion met all four criteria set out in Parmar. However, he also stated that in one or two cases he had deleted some "commentary".
After counsel were given an opportunity to review the edited affidavits, counsel for the appellant Farinacci again attempted to make submissions regarding the deletions that had been made. Counsel pointed out that the deletions made by the trial judge went beyond those which were made from the same affidavits by Bowlby J. The trial judge characterized the deletions which had been made by Bowlby J. as "irrelevant" to what he was doing.
Counsel for the appellant Farinacci then asked about a specific deletion from one of the affidavits, asking if it was appropriate to inquire into whether his client's name appeared in the deleted materials and in what context. The trial judge indicated that it was not appropriate for him to inquire, stating that the deletion was made "in the interests of the persons involved" and that all the deletions he made "were strictly related to informants, and one or two other minor deletions which related to commentary...".
Counsel for the appellant Jeffreys stated that the defence were, at least prima facie, entitled to all information reflecting on the reasonable and probable grounds upon which the authorizations were granted. The trial judge flatly rejected this submission.
The Crown submitted that "[t]he accused are entitled to know if they are named in the deleted portions." The trial judge then proceeded to list those accused named in the deleted portions of the nine affidavits. Defence counsel was also advised that no confidential sources had died, were potential Crown witnesses or were police officers.
At the Wilson hearing, the appellants cross-examined the three police officers who swore affidavits in support of the nine authorizations. The trial judge ruled that defence counsel could not cross-examine the "sub-affiants" who supplied information to the affiants. However, he granted the appellants leave to call two additional police officers as witnesses. On June 24, 1987 the trial judge dismissed the application to set aside the seven District Court authorizations.
Shortly after this hearing, the appellants brought an application before Watt J. to set aside the two Supreme Court authorizations. Watt J. edited the affidavits filed in support of these authorizations less extensively than O'Connell Dist. Ct. J. had edited the same affidavits before distributing them to defence counsel. Ultimately, Watt J. dismissed the application to set aside these two authorizations.
The appellants also brought a motion to quash O'Connell Dist. Ct. J.'s rulings and sought prohibition in the Supreme Court of Ontario in order to prevent him from admitting, in his capacity as trial judge, primary evidence obtained from the seven impugned District Court authorizations. This motion was heard and dismissed by Watt J. on September 10, 1987: R. v. Durette (1987), 61 O.R. (2d) 590, 37 C.C.C. (3d) 126. No appeal was taken from this decision.
The appellants appealed their convictions to the Court of Appeal inter alia in respect of the validity of the wiretap authorizations and the admissibility and use of the recordings intercepted pursuant thereto. On May 15, 1992, the Court of Appeal, Doherty J.A. dissenting, dismissed the appeal: R. v. Durette
(1992), 9 O.R. (3d) 557, 54 O.A.C. 81, 72 C.C.C. (3d) 421. The appellants appeal to this Court as of right pursuant to s. 691(1) (a) of the Criminal Code , R.S.C., 1985, c. C-46 .
II.Judgments Below
District Court (Judge O'Connell (Wilson motion))
The trial judge noted that he had edited the affidavits filed in support of the wiretap authorizations granted by Scott Dist. Ct. J. before providing those affidavits to defence counsel. He stated that "[t]he editing was undertaken to protect sensitive information, and the names of the informants."
The trial judge reviewed a number of authorities, including Wilson v. The Queen, supra, before concluding that, as a reviewing judge, he should not substitute his discretion for that of the authorizing judge unless the facts on which the authorizations were granted differed from the facts proved on the ex parte review. The trial judge also held that he was duty-bound to review the unedited affidavits that were put before the authorizing judge, even though defence counsel only had an edited version of those affidavits. He stated, "it seems to me impossible to review an affidavit and make a ruling as to whether a judge would have granted an authorization based on an affidavit without looking at that particular affidavit".
After reviewing the affidavits and the testimony of the affiants and two defence witnesses the trial judge concluded:
It cannot be said that there is proven negligence amounting to material misrepresentation, material non‑disclosure, or that there is misleading disclosure, fraud, or simply non‑disclosure as to important facts, any of which would vitiate the authorizations.
The trial judge added that he would have come to the same conclusion with respect to the edited affidavits. He found that there was a basis for the issuance of the authorizations and that the affiants had reasonable and probable grounds to believe "as to what they deposed to by stating that all the matters deposed to were true to the best of their knowledge and belief and were relevant as to the issue of whether the judge would grant the authorization sought".
Supreme Court of Ontario (motion before Watt J.) (1987), 61 O.R. (2d) 590
Watt J. emphasized that he did not view resort to the supervisory jurisdiction of the superior court as a substitute for the exercise of a statutory or other right of appeal. He made it clear that the only issue before him was whether the trial judge had the jurisdiction to determine the matter argued before him on the appellants' Wilson motion.
Watt J. held that the test to be applied in reviewing the ruling of the trial judge was whether there was some evidence upon which he could have been satisfied that there was some evidence before Scott Dist. Ct. J. upon which the latter could have been satisfied that there was compliance with the Criminal Code provisions. Watt J. found that the ruling of the trial judge passed this test. He also found that the trial judge neither breached the rules of natural justice nor exceeded his jurisdiction by limiting the scope of cross-examination of the affiants, or determining whether sub-affiants could be cross-examined and whether certain evidence should be received. Accordingly, Watt J. dismissed the appellants' motion to quash and accompanying application for prohibition.
Ontario Court of Appeal (1992), 72 C.C.C. (3d) 421
Finlayson J.A. (Brooke J.A. concurring)
Finlayson J.A. dealt with the issue of the validity of the wiretap authorizations and the admissibility and use of the taped recordings by considering the following objections: (a) "the failure to provide judicial summaries of edited material", (b) "the improper editing of affidavits supporting authorizations", and (c) "the refusal to permit examinations of police officers who had provided information to deponents of affidavits supporting authorizations". Referring to Garofoli, supra, he stated that the court should determine "whether what was done by the trial judge fell so far short of the spirit of the procedural standard suggested by Sopinka J. that we feel compelled to order a new trial" (p. 447).
Finlayson J.A. concluded that the appellants' case was not impaired by the trial judge's failure to provide summaries. He noted that the appellants had not requested summaries and emphasized that the real issue was the editing process used by the trial judge. Finlayson J.A. pointed out that the trial judge had advised counsel of the method he proposed to use in editing the affidavits and that there had been no objections to the proposed procedure at that time. However, Finlayson J.A. stated, "[i]n light of the differences between the versions of O'Connell J. and Watt J., who was in fact the author of Parmar, it is hard to argue that the trial judge properly applied the principles of that case" (p. 449). Finlayson J.A. noted that the trial judge's editing accurately reflected his statements to counsel regarding how he would proceed.
Finlayson J.A. then indicated that he had read all of the affidavits in their entirety. He described the excised information as "nothing more than a further recital, with specific examples, of how these biker gangs conducted their illegal drug operations" (p. 449). He was of the view that there was "an abundance of evidence to support the original authorizations" (p. 450). He went on to observe that he did not understand how the excised material could have assisted the appellants in opposing the admissibility of the wiretap evidence affecting them.
Finlayson J.A. stated that the trial judge may have been "over-cautious" in his editing but concluded that this did not amount to an error of law, or, if it did, then it occasioned no substantial wrong or miscarriage of justice. Finlayson J.A. agreed with the trial judge that the authorizations should not be set aside on the basis that "all known targets were not named" (p. 452). He also pointed out that defence counsel already "had a good idea" of what was contained in the affidavits since they had access to the versions of the affidavits which had been edited by Watt J. and Bowlby J. Finlayson J.A. concluded (at p. 453):
On balance, I do not think the appellants ... can show significant prejudice as a result of the editing process. In the absence of such prejudice, the failure of the trial judge to fully anticipate guidelines that would be set down by subsequent courts for editing affidavits is not sufficient, on appeal, to set aside the authorizations in question.
Doherty J.A. (dissenting)
Doherty J.A., relying on Stinchcombe, supra, stated that "[f]ull disclosure to the defence of all material information, subject to certain exceptions based on overriding public interest concerns, is now a constitutionally mandated standard" (p. 466). He held that affidavits filed in support of a wiretap authorization are ""clearly material" to the admissibility of the interceptions". Doherty J.A. concluded that disclosure of the full affidavit should be starting premise and anything less potentially impairs an accused's ability to make full answer and defence unless justified by the Crown "in accordance with established principles".
Doherty J.A. then stated that a deletion from an affidavit before it is disclosed to the defence derogates from "the goal of full public visibility of the administration of criminal justice" and "potentially adversely affects public confidence in our system of criminal justice". Therefore, a trial judge should "make only those deletions which are essential to give effect to confidentiality concerns that remain paramount as of the time the editing is sought" (p. 468).
Doherty J.A. concluded that O'Connell Dist. Ct. J. failed to apply the principles set out in Parmar, supra, in a number of respects (at pp. 471-73):
First, the trial judge edited the affidavits extensively without any input from the Crown or any information beyond that which appeared in the affidavits.... [T]he trial judge should have called upon the Crown to justify the continued need for confidentiality of those sources. Without that inquiry, there could be no valid assessment of what parts of the affidavit should be excised before they were turned over to the accused.
Secondly, the trial judge repeatedly indicated that he deleted "information from informants and others which is to be protected".... The editing process is intended to protect sources of information not the information from those sources.... It appears that in editing the affidavits the trial judge sought not only to protect the identity of informants, but to exclude from defence scrutiny all information obtained from those informants. In doing so, he took much too broad an approach to the editing process.
Thirdly, the trial judge indicated that he had edited out of the affidavits material which he regarded as "commentary" or "opinion" or "summary". Such characterizations have no role in the editing process.... It may be that allegations properly characterized as "commentary" or "opinion" have no place in the affidavit. This is not, however, any reason to remove them from the affidavit during the editing process. Indeed, such comments may provide a fertile ground for cross-examination of the affiant.
Fourthly, the trial judge indicated that the editing of the same affidavits done by the judge who presided over the earlier trial of the first group of accused was "irrelevant" to his editing task.... [I]t was very relevant. The ongoing need to preserve the confidentiality of information contained in the affidavit is the only justification for deleting that information before turning the affidavits over to the accused. If that information is already in the public domain by virtue of an earlier judicial proceeding, then confidentiality can no longer be a legitimate concern. . . .
Fifthly and finally, the editing of two of the affidavits by Watt J. in the course of a "Wilson" application brought during this trial provides cogent evidence that the trial judge went well beyond what was required when editing the affidavits.... One can only conclude from this comparison that the trial judge went well beyond what was necessary to protect the public interest when he edited the two affidavits which were subsequently placed before Watt J.
The trial record compels the conclusion that the trial judge misapplied the factors relevant to the editing of the affidavits. An examination of the unedited affidavits which were made available to this court confirms that this misapplication resulted in considerable unwarranted editing of the affidavits.
Doherty J.A. held that the deletions kept from the appellants "a substantial body of material which they were entitled to have when mounting their challenge to the admissibility of the intercepted communications" (p. 476). Furthermore, the deletions prevented a proper and full inquiry into the validity of the authorizations. Therefore, he concluded that the trial judge committed an error in law. Doherty J.A. did not believe that the Crown had established that the improper editing of the affidavits did not result in a substantial wrong or miscarriage of justice. He stated that there was simply no way of knowing what might have come out on cross-examination if the appellants had been given proper access to the material in the affidavits. Therefore, there was no way of establishing that if the affidavits had been edited properly the impugned authorizations would have been upheld and that the wiretap evidence obtained pursuant to those authorizations would have been admissible against the appellants.
III.Relevant Legislation
Section 187 of the Criminal Code deals with the storage and removal of the material filed in support of an application for a wiretap authorization. At the time of the trial of this matter s. 187 provided:
187. (1) All documents relating to an application made pursuant to section 185 or subsection 186(6) or 196(2) are confidential and, with the exception of the authorization, shall be placed in a packet and sealed by the judge to whom the application is made immediately on determination of the application, and that packet shall be kept in the custody of the court in a place to which the public has no access or in such other place as the judge may authorize and shall not be
(a) opened or the contents thereof removed except
(i) for the purpose of dealing with an application for renewal of the authorization, or
(ii) pursuant to an order of a judge of a superior court of criminal jurisdiction or a judge as defined in section 552; and
(b) destroyed except pursuant to an order of a judge referred to in subparagraph (a)(ii).
(2) An order under subsection (1) may only be made after the Attorney General or the Solicitor General by whom or on whose authority the application was made for the authorization to which the order relates has been given an opportunity to be heard.
This provision was repealed by An Act to amend the Criminal Code, the Crown Liability and Proceedings Act and the Radiocommunication Act, S.C. 1993, c. 40, s. 7 (Bill C-109), in force August 1, 1993. The relevant portions of the provision which replaced it are as follows:
187. (1) All documents relating to an application made pursuant to any provision of this Part are confidential and, subject to subsection (1.1), shall be placed in a packet and sealed by the judge to whom the application is made immediately on determination of the application, and that packet shall be kept in the custody of the court in a place to which the public has no access or in such other place as the judge may authorize and shall not be dealt with except in accordance with subsections (1.2) to (1.5).
...
(1.3) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may order that the sealed packet be opened and its contents removed for the purpose of copying and examining the documents contained in the packet.
(1.4) A judge or provincial court judge before whom a trial is to be held and who has jurisdiction in the province in which an authorization was given may order that the sealed packet be opened and its contents removed for the purpose of copying and examining the documents contained in the packet if
(a) any matter relevant to the authorization or any evidence obtained pursuant to the authorization is in issue in the trial; and
(b) the accused applies for such an order for the purpose of consulting the documents to prepare for trial.
...
(4) Where a prosecution has been commenced and an accused applies for an order for the copying and examination of documents pursuant to subsection (1.3) or (1.4), the judge shall not, notwithstanding those subsections, provide any copy of any document to the accused until the prosecutor has deleted any part of the copy of the document that the prosecutor believes would be prejudicial to the public interest, including any part that the prosecutor believes could
(a) compromise the identity of any confidential informant;
(b) compromise the nature and extent of ongoing investigations;
(c) endanger persons engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used; or
(d) prejudice the interests of innocent persons.
(5) After the prosecutor has deleted the parts of the copy of the document to be given to the accused under subsection (4), the accused shall be provided with an edited copy of the document.
(6) After the accused has received an edited copy of a document, the prosecutor shall keep a copy of the original document, and an edited copy of the document and the original document shall be returned to the packet and the packet resealed.
(7) An accused to whom an edited copy of a document has been provided pursuant to subsection (5) may request that the judge before whom the trial is to be held order that any part of the document deleted by the prosecutor be made available to the accused, and the judge shall order that a copy of any part that, in the opinion of the judge, is required in order for the accused to make full answer and defence and for which the provision of a judicial summary would not be sufficient, be made available to the accused.
This amended provision was not in force at any material time to the proceedings in issue here and my reference to it is not intended to express any opinion with respect to its interpretation. It is, however, helpful as a legislative comment on the principles stated in Garofoli, supra.
IV.Point in Issue
The sole point in issue is:
Did the Court of Appeal for Ontario err in law in concluding that the trial judge's editing of the affidavits in support of the wiretap authorizations did not prevent a proper and full inquiry into the validity of the authorizations, thereby depriving the appellants of the right to make full answer and defence?
V.Analysis
A.General Principles
I would allow the appeals substantially for the reasons delivered by Doherty J.A. in the Court of Appeal. Before explaining why I disagree with the decision of the majority in the Court of Appeal, I will review some of the general principles which apply to the disclosure of the contents of a wiretap affidavit to an accused person.
Under s. 187, the material filed in support of an application for a wiretap authorization is placed in a sealed packet to which the public normally has no access. That section, however, also permits the packet to be opened and the contents removed pursuant to an order of a judge. The judge hearing an application under this section has a broad discretion to decide whether or not to provide access to the packet. However, in the case of an accused, that discretion would not be exercised judicially or in conformity with the right under the Canadian Charter of Rights and Freedoms to make full answer and defence unless access was provided: Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505. This is explicitly recognized in s. 187(5) which now states that the accused "shall" be given a copy of the material in the packet once it has been edited by the prosecutor.
The rule requiring that an accused automatically be given access to the sealed packet is based upon the fact that, as part of the right to make full answer and defence, the accused has the right to be given the opportunity to challenge the admissibility of evidence tendered by the Crown. The most effective way of challenging the admissibility of wiretap evidence is to challenge the validity of the authorizations pursuant to which that evidence was gathered. If the authorization is invalid then the admissibility of the wiretap evidence may be challenged on both statutory and constitutional grounds. The validity of a wiretap authorization turns upon whether the affidavit put before the issuing judge, as amplified by any evidence taken on review, provides a basis upon which that judge could have been satisfied that the pre-conditions for granting the authorization exist. The validity of the authorization is heavily dependent upon the contents of the affidavit. Therefore, the accused must be provided with access to the affidavit if he or she is to be given the opportunity to mount an effective challenge to the admissibility of wiretap evidence tendered by the Crown.
In Garofoli, I indicated that, in order to protect the public interest in law enforcement, and in particular the interest in protecting the identity of informers and the confidentiality of investigative techniques, a judge may edit a wiretap affidavit before providing it to the accused. The interests of law enforcement are adequately served if the judge considers the factors set out in Parmar, supra, at pp. 281-82, and approved of in Garofoli, supra, at p. 1460, before disclosing the contents of an affidavit to the accused. Those factors are:
(a)whether the identities of confidential police informants, and consequently their lives and safety, may be compromised, bearing in mind that such disclosure may occur as much by reference to the nature of the information supplied by the confidential source as by the publication of his or her name;
(b)whether the nature and extent of ongoing law enforcement investigations would thereby be compromised;
(c)whether disclosure would reveal particular intelligence‑gathering techniques thereby endangering those engaged therein and prejudicing future investigation of similar offences and the public interest in law enforcement and crime detection; and
(d)whether disclosure would prejudice the interests of innocent persons.
This aspect of the decision in Garofoli is now codified in s. 187(4) of the Criminal Code .
In Garofoli, supra, at p. 1461, I also suggested that the following procedure ought to be followed when disclosing the contents of wiretap affidavits to the accused:
1. Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.
2. The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.
3. After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.
4. After the determination has been made in (3), the packet material should be provided to the accused.
5. If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.
6. If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfil that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.
Two of the essential features of the above procedure have now been codified in s. 187 of the Criminal Code . First, s. 187(4) now makes it clear that editing wiretap affidavits is primarily the responsibility of the prosecutor. This reflects the fact that only the prosecutor will be able to assess whether there is an ongoing need to maintain the confidentiality of material contained in wiretap affidavits. In fact, in many cases it will be necessary for the prosecutor to consult with the police in order to make this determination. Second, s. 187(7) recognizes the right of the defence to have an opportunity to make submissions regarding the appropriateness of any proposed deletions.
In Garofoli, supra, at pp. 1458 and 1460, I stated that during the editing process, the judge must strike a balance between the competing interests of law enforcement on the one hand, and the right of the accused to make full answer and defence on the other. I also stated at p. 1461 that editing is to be kept to a minimum. See also R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.), at p. 43. The present case provides a convenient opportunity to add that the need for editing should not be presumed.
The Charter guarantee of the right to make full answer and defence requires that, as a general rule, all relevant information in the possession of the state be disclosed to an accused. In order to justify non-disclosure the Crown must bring itself within an exception to that general rule: Stinchcombe, supra, at pp. 340-41; and R. v. Egger, [1993] 2 S.C.R. 451, at pp. 466-67. This may be done by showing that the public interest in non-disclosure outweighs the accused's interest in disclosure. However, I agree with the following statement by Doherty J.A., at p. 466:
Apart from public interest concerns which may operate in a particular case, I see no reason why an accused should not be entitled to see exactly what the judge saw who relied on the affidavits to issue the authorization. Disclosure of the full affidavit should be the starting premise. Anything less potentially impairs an accused's ability to make full answer and defence and must be justified by the Crown in accordance with established principles. Editing of these affidavits is best viewed as a necessary evil.
In summary, when determining whether the contents of wiretap affidavits should be disclosed to an accused, full disclosure should be the rule, subject only to certain exceptions based upon overriding public interests which may justify non-disclosure. The affidavits should only be edited to the extent necessary to protect those overriding public interests.
B.Application to the Present Case
1.Did the trial judge err in adopting the procedure which he did?
The trial judge was of the opinion that he had edited the affidavits in accordance with the procedure suggested in the authorities put before him. It is difficult to determine on the basis of the record before this Court whether he was justified in holding this view.
On the one hand, the procedure adopted by the trial judge in this case was less than ideal because he carried out the bulk of the editing before receiving any information from the Crown regarding which material was confidential. As Doherty J.A. pointed out, the affidavits in question were sworn some three or four years before the time of trial. In addition, the police investigation was completed before the trial. Under the circumstances it is difficult to see how the trial judge could have made an informed decision as to whether there was a continuing need for confidentiality at the time of trial. The procedure adopted in the present case may also be faulted because the trial judge gave defence counsel very little information about the nature of the proposed deletions, beyond the statement that, in his view, all of the deletions could be justified on the basis of the factors set out in Parmar. This prevented the defence from making effective submissions regarding the appropriateness of the proposed deletions.
On the other hand, it must be borne in mind that the trial judge edited these affidavits over three years before the decision in Garofoli was rendered. At that time one of the most authoritative cases regarding the editing of wiretap affidavits was the decision of Watt J. in Parmar. The procedure followed by the trial judge was generally similar to the one adopted by Watt J. in Parmar and subsequently approved of in Rowbotham, supra, at p. 43. It is also important to recall that the procedure set out in Garofoli was not intended to be either exclusive or exhaustive. Finally, it should be noted that Crown did have some input during the editing process. While reviewing the judge's proposed deletions, the Crown consulted with a police officer and in a few cases suggested that material deleted by the trial judge should be disclosed to the accused.
In light of the above it is difficult to determine whether or not the procedure adopted by the trial judge fell so far short of the standard set in Garofoli as to amount to an error of law. I do not think that it is necessary to express any opinion upon this point because of the conclusion which I reach regarding whether the trial judge departed from the principles set out in Parmar and subsequently approved of in Garofoli in determining what to edit.
2.Did the trial judge err in determining what to edit?
The respondent submitted with some force that the trial judge had complied with the requirements of Parmar and therefore he should not be reversed just because the rules changed after Parmar. Without agreeing with the premise of this submission that an error of law is excused if based on case law that is later changed, I propose to address this submission in order to explain why I agree with Doherty J.A. that the learned trial judge did not comply with Parmar.
In my view the record clearly shows that the trial judge edited the affidavits before him more extensively than was necessary to protect the public interest. As stated above, non-disclosure can only be justified on the basis that disclosure will prejudice the interests of informants, innocent persons or the law enforcement authorities and that such prejudice overbears the interests of the accused. If, however, the information has ceased to be confidential, then the justification for non-disclosure disappears. Here the trial judge was aware that Bowlby J. had edited the same affidavits and could presume that this version had become public at the trial before Bowlby J. We are advised that the trial judge edited out information that had not been edited by Bowlby J. and therefore was public. The trial judge considered that this was not relevant. With respect, this ignores the basic premise of non-disclosure, i.e. that it is only confidential information that qualifies. I agree with Doherty J.A. that the affidavits as edited by Bowlby J. should have been the starting point for the trial judge.
Furthermore, the trial judge edited out material which in both the majority and minority reasons is acknowledged not to relate to the identity of informers nor to any of the other factors that justify non-disclosure. In fact, in his comments to counsel the trial judge suggested that he had excised not only information which might tend to identify informants, but also information obtained from informants and others. This clearly was a departure from Parmar. The trial judge also departed from Parmar and erred in excising material which he characterized as "commentary", "summary" or "opinion".
Trial judges must be granted some discretion to determine what editing is required to ensure that the public interest is protected. However, that discretion does not include the power to edit material whose continued confidentiality clearly is not justified by any of the public interest concerns identified in Parmar. The fact that the same affidavits were edited by both Watt J. who wrote Parmar and the trial judge and the fact that the latter made substantial deletions while the former made almost no deletions indicates that there was more than a difference in application of Parmar but the principles of Parmar were not being applied. One of those principles is that editing is to be kept to a minimum: Parmar, supra, at p. 282. This principle clearly was not respected in the present case.
In order to conclude that a failure to disclose information to the defence amounts to a denial of the right to make full answer and defence, the court must consider the nature of the information withheld and whether it might have affected the outcome of the case: Stinchcombe, supra, at p. 348. Although he agreed that the trial judge had not complied with Parmar, Finlayson J.A. concluded that he did not commit any error in law, or alternatively, that any error occasioned no substantial wrong or miscarriage of justice, because counsel for the appellants could not show that they were significantly prejudiced by the trial judge's editing. With respect, I think that Finlayson J.A. erred in placing the onus upon the appellants to show how the excised material might have been useful to their case. As Doherty J.A. stated at p. 477, in concluding that s. 686(1)(b)(iii) was inapplicable:
It is particularly inappropriate to place any onus on the appellants to demonstrate prejudice flowing from the error revealed in this case. The appellants have not seen the unedited affidavits. How can they be expected to show prejudice flowing from the improper editing of those affidavits when they have no idea what information was improperly kept from them? Placing an onus on the appellants to demonstrate prejudice from the denial of appropriate access to the affidavits is akin to the now rejected contention that an accused had to show fraud before she could obtain an order directing the opening of the sealed packet. In both cases the accused is placed in the untenable position of being denied access to the very material which is crucial to demonstrating either prejudice or fraud.
In my view, by showing that the trial judge excised a substantial amount of material whose continued confidentiality could not be justified on the basis of the factors set out in Parmar, the appellants have established, prima facie, that their ability to make full answer and defence was prejudiced in that they were denied the opportunity to conduct a full inquiry into the validity of the seven wiretap authorizations challenged before the trial judge. The appellants should not be required to demonstrate the specific use to which they might put information which they have not even seen. The respondent has not been able to satisfy me that no prejudice occurred and an appellate court which does not have the benefit of access to counsel's brief cannot be expected to speculate in these circumstances. I must conclude, therefore, that the ability of the appellants to make full answer and defence was compromised.
The respondent submits that regardless of whether the trial judge erred in editing the affidavits, it is a complete answer to these appeals that each of the affidavits as edited by the trial judge disclosed sufficient grounds to sustain the relevant authorizations. The respondent takes the position that there is no need to consider the excised portions of the affidavit if the authorization can be supported exclusively on the basis of the affidavit as edited. However, this submission ignores the fact that the material contained in the excised material may be used to impugn the contents of the portions of the affidavit which have been disclosed. In the absence of overriding policy concerns which justified confidentiality, the appellants were entitled to have the opportunity to use the deleted material in this fashion. As Doherty J.A. put it at p. 478, "[i]t may be that the appellants, armed with the deleted information taken in combination with additional information which they may have had, could have demonstrated the inaccuracy of allegations made in the affidavits, or fraud, or culpable non-disclosure".
The trial judge reviewed the material which had been deleted from the affidavits in the course of assessing the validity of the authorizations. In doing so he presumably considered whether any of that material detracted from the contents of the portions of the affidavits which were disclosed. However, this judicial screening of the material which was improperly withheld from the appellants did not cure the failure to make proper disclosure. The trial judge did not have access to the same information as the defence. The fact that the trial judge may not have seen how the excised material could have assisted the appellants does not necessarily mean that defence counsel would not have found a way to use that material to their advantage.
3.Is Section 686(1)(b)(iii) applicable?
This is not an appropriate case in which to apply s. 686(1)(b)(iii) of the Criminal Code . The wiretap evidence obtained pursuant to the impugned authorizations formed a substantial part of the evidence against the appellants. The fact that the appellants were deprived of the right to make full answer and defence when challenging the admissibility of that evidence necessarily means that a new trial must be ordered. It is impossible to say that the verdicts against the appellants would necessarily have been the same if the defence had succeeded in establishing that even one of the impugned authorizations was invalid.
The respondent submits that each of the impugned affidavits should be examined individually to determine whether any over-editing occurred and the Court should examine the packets and original unedited affidavits to determine the extent to which the appellants are specifically named or dealt with in the excised material. The respondent adds that, if over-editing is found in a particular affidavit, to the extent that it can be said that the trial judge failed to act judicially, the Court must determine whether any conversations were intercepted pursuant to the relevant authorization and if so, whether any of those calls were incriminating.
There are a number of reasons why the respondent's submission must be rejected. First, if any authorizations were set aside by this Court on the grounds that the appellants were not afforded a proper opportunity to test their validity, the validity of subsequent authorizations would be placed in doubt to the extent that they were issued on the basis of evidence obtained pursuant to the invalidated authorizations. Second, even though the appellants were not directly incriminated by the conversations recorded pursuant to some of the authorizations, incriminating remarks made by other individuals during those conversations were admitted as evidence against the appellants under the co-conspirator's exception to the rule against hearsay. Third, if any of the wiretap evidence had been declared inadmissible, an unknown portion of the other evidence against the appellants may have been rendered inadmissible as derivative evidence. The combined effect of these factors makes it impossible to conclude that the verdicts entered against the appellants would necessarily have been the same if they had succeeded in challenging the validity of one or more of the wiretap authorizations.
VI.Conclusion
Under the circumstances, I am compelled to conclude that the trial judge erred in law by editing the affidavits in such a way that the appellants were denied the right to make full answer and defence. This error cannot be cured by the application of s. 686(1)(b)(iii). I therefore agree with Doherty J.A. that the appeals must be allowed, the convictions quashed and a new trial ordered.
The reasons of L'Heureux-Dubé, Gonthier and McLachlin JJ. were delivered by
L'Heureux-Dubé J. (dissenting) -- These appeals concern judge-made legal rules which governed legally authorized wiretapping of telephone conversations. The legislative provision at the heart of these cases is s. 178.14(1)(a)(ii) of the Criminal Code, R.S.C. 1970, c. C-34 (enacted by the Protection of Privacy Act, S.C. 1973-74, c. 50, s. 2), which read at the time:
178.14 (1) All documents relating to an application made pursuant to section 178.12 or subsection 178.13(3) or 178.23(3) are confidential and, with the exception of the authorization, shall be placed in a packet and sealed by the judge to whom the application is made immediately upon determination of such application, and such packet shall be kept in the custody of the court in a place to which the public has no access or in such other place as the judge may authorize and shall not be
(a) opened or the contents thereof removed except
(i) for the purpose of dealing with an application for renewal of the authorization, or
(ii) pursuant to an order of a judge of a superior court of criminal jurisdiction or a judge as defined in section 482; [Emphasis added.]
(Later R.S.C., 1985, c. C-46, s. 187 (as am. by c. 27 (1st Supp.),
s. 24).)
We are concerned here with subpara. (ii). The appellants sought the opening of the sealed packets containing the evidence. Those, in the form of affidavits, were submitted to a judge for the purpose of authorizing the wiretap of the appellants' and others' telephone conversations in the course of an investigation of a drug traffic conspiracy. Although that motion was granted and cross-examination of the affiants and two additional witnesses was allowed on a Wilson review application (Wilson v. The Queen, [1983] 2 S.C.R. 594), the wiretapped conversations were found to be admissible at trial and were admitted in evidence. Further application in the form of certiorari was denied. The appellants, Leonard Farinacci and Yves Lépine were convicted of conspiracy to traffic in methamphetamine and the appellant Kenneth Jeffreys was convicted of conspiracy to traffic in cocaine. Their appeals to the Ontario Court of Appeal were dismissed by a majority: R. v. Durette (1992), 9 O.R. (3d) 557, 54 O.A.C. 81, 72 C.C.C. (3d) 421. They come before us as of right. My colleague Sopinka J. would allow the appeals. I dissent and would dismiss the appeals for the following reasons.
Before discussing the issues raised in these appeals, it is relevant to set out at some length the proceedings which gave rise to the appeals as well as the judgments below.
- I -
Facts and Proceedings
The charges against the appellants were part of many laid against members of two motorcycle clubs, the Iron Hawgs and the Outlaws. In the summer of 1983, the Metropolitan Toronto Police Force had commenced an investigation into the distribution of illicit drugs by members of the Iron Hawgs (Project Boar). In the spring of 1984, the Metropolitan Toronto Police obtained two authorizations to intercept private communications from the Supreme Court of Ontario (March 1, 1984, before Trainor J. (Exhibit 3) and April 14, 1984, before Ewaschuk J. (Exhibit 5)). During approximately the same period, the Niagara Regional Police and the Ontario Provincial Police had commenced a parallel investigation into the manufacture and distribution of illicit drugs (Project Skylab). Police officers obtained six authorizations to intercept private communications from Judge Scott of the Ontario District Court of Niagara covering the period between November 1983 and August 1984 (November 16, 1983 (Exhibit 1); January 12, 1984 (Exhibit 2); March 9, 1984 (Exhibit 4); May 7, 1984 (Exhibit 6); June 11, 1984 (Exhibit 7); and July 9, 1984 (Exhibit 8)).
In August 1984, the two separate police investigations merged because the two targeted clubs had amalgamated. Officers involved in the combined investigations obtained three further authorizations to intercept private communications from Judge Scott of the Ontario District Court covering the period between August 1984 and January 1985 (only one was presented at the trial (Exhibit 9). There were therefore a total of eleven authorizations: nine from the District Court and two from the Supreme Court of Ontario. They covered a period from November 1983 to January 1985.
As a result of these police investigations and wiretapping, about 80 persons were arrested on January 22, 1985, at nine different Outlaws clubhouses in Ontario and Québec, as well as numerous private residences. The three appellants were among the persons arrested. Charges against 61 Ontario accused were laid under a single information alleging conspiracy to traffic in methamphetamine, cocaine and LSD. A preliminary hearing was scheduled for December 2, 1985.
On November 19, 1985, the Attorney General of Canada preferred two indictments, replacing the original information and cancelling the preliminary hearing. One indictment, presented in the Supreme Court of Ontario, named 12 accused. The other, presented in the Ontario District Court, named 27 accused, including the three appellants. Since these trials are interrelated as far as the wiretap authorizations are concerned, it is necessary to refer to them.
Supreme Court of Ontario Trial (R. v. Marsh, unreported)
In the case of 12 accused, the trial began on June 2, 1986 before Bowlby J. On June 24, 1986, Bowlby J. granted an application to open the nine sealed packets (seven District Court and two Supreme Court of Ontario authorizations). Bowlby J. permitted access by the defence to the affidavits. After Bowlby J. edited the affidavits, released them to defence counsel and permitted extensive cross-examinations of the three affiants by the defence, he ruled on the Wilson application brought by the accused, upholding the validity of the nine authorizations (September 30, 1986).
Of the 12 persons indicted, nine entered pleas of guilty before or during the trial, in one case the charges were stayed and the two other accused were convicted, on February 27, 1987. There were no appeals against convictions. As the Supreme Court trial was over, a date for the District Court trial was set for May 11, 1987.
District Court Trial
The District Court trial commenced on May 11, 1987 before Judge O'Connell. From May 11 until June 24, 1987, O'Connell Dist. Ct. J. entertained the following pre-trial motions:
(i) a motion to stay the proceedings on the basis of unreasonable delay;
(ii) a motion to quash the indictments on the basis that s. 507 of the Criminal Code was inconsistent with ss. 7 , 9 , 12 and 15 of the Canadian Charter of Rights and Freedoms ;
(iii) a motion to have separate trials;
(iv) a motion to sever the trial on the counts;
(v) a motion to change the venue of the trial;
(vi) a motion to open the seven sealed packets containing the affidavits sworn in support of applications to obtain authorizations to intercept private communications; and
(vii) a Wilson motion, to quash the seven District Court authorizations to intercept private communications.
It is the disposition of the two latter applications which is relevant to the present appeals.
On May 13, 1987, O'Connell Dist. Ct. J. granted the application to open the packets and gave the appellants access to nine sealed packets (although seven were asked for, including the two Supreme Court of Ontario authorizations) containing the affidavits, subject to the packets being judicially edited. O'Connell Dist. Ct. J. did not require the appellants to establish a prima facie case of fraud or any other preconditions in order to obtain access to the sealed packets. On May 15, 1987, after O'Connell Dist. Ct. J. opened the nine sealed packets, removed the affidavits and edited them himself according to R. v. Parmar (1987), 34 C.C.C. (3d) 260 (Ont. H.C., Watt J.) ("Parmar (No. 1)") and gave a copy of the nine edited affidavits to the Crown for review. O'Connell Dist. Ct. J. then proceeded to review each affidavit with Crown counsel, identifying each of the deletions which he had made and seeking the Crown's submissions. The appellants' counsel were present throughout this exercise.
It is acknowledged that O'Connell Dist. Ct. J. made more extensive deletions to the nine affidavits than Bowlby J. had in the Supreme Court trial in R. v. Marsh.
O'Connell Dist. Ct. J. released edited copies of the nine affidavits to the appellants and heard submissions from the appellants' counsel over the course of two days with respect to his editing (May 19 and 20, 1987). O'Connell Dist. Ct. J. did not accede to the appellants' requests for more information as to the content of the affidavits, although he did inform them as to whether they were named in the deleted portions of the affidavits and proceeded to list those accused in the deleted portions of the nine affidavits. The trial judge said that he deleted information relating to informers on the basis that it would reveal their identity, based on Parmar (No. 1), and he also deleted minor improper or irrelevant commentaries. He refused to consider the extent to which Bowlby J. has edited the same affidavits in the course of the Wilson hearing of September 30, 1986 in R. v. Marsh.
The appellants then cross-examined the three affiants (Edward Typer, Walter Baker and James Douglas Wilkinson) for nine full days (May 21, 22, 25, 26, 27, 28, 29 and June 1, 2, 1987). O'Connell Dist. Ct. J. granted permission to cross-examine without requiring the appellants to satisfy any of the threshold tests set out in Franks v. Delaware, 438 U.S. 154 (1978), and R. v. Parmar (1987), 37 C.C.C. (3d) 300 (Ont. H.C., Watt J.), aff'd (1989), 53 C.C.C. (3d) 489 (Ont. C.A.).
On June 5, 1987, O'Connell Dist. Ct. J. ruled on a voir dire that the appellants could not cross-examine the "sub-affiants" who supplied the information to the affiants. Notwithstanding his ruling on the voir dire, O'Connell Dist. Ct. J. granted the appellants' request to call two additional witnesses. Constables Robert Lines and William Murray were cross-examined for three days (June 7, 8 and 9, 1987).
On June 15, 1987, the appellants filed a Wilson application to set aside the seven District Court authorizations. O'Connell Dist. Ct. J. dismissed the application on June 24, 1987 and ruled that the interceptions were lawfully made and the intercepted communications were admissible in evidence against the appellants and their co-accused.
The appellants then brought a motion in the nature of a certiorari, before the Supreme Court of Ontario (Watt J.), to set aside O'Connell Dist. Ct. J.'s decision on the appellants' Wilson application, challenging the wiretap authorizations on the sole ground that the trial judge edited too much of the affidavits provided to the judge who authorized the wiretaps. On September 10, 1987, this application was dismissed by Watt J.: R. v. Durette (1987), 61 O.R. (2d) 590, 37 C.C.C. (3d) 126. According to Watt J., O'Connell Dist. Ct. J. did not err in finding that the edited affidavits set out probable and reasonable grounds sufficient to support the issuance of the authorizations neither did he exceed his jurisdiction nor breach the rules of natural justice in limiting the scope of the cross-examination, determining whether certain persons should be cross-examined and whether certain evidence sought to be admitted ought to be received as relevant.
Concurrently, in September 1987, a second Wilson motion was presented before Watt J. of the Supreme Court of Ontario in order to set aside the two Supreme Court of Ontario authorizations. The motion was dismissed by Watt J. Watt J. re-edited the affidavits of Dennis Pearce dated March 1 and April 14, 1984 (which were Exhibits 8A and 9A before O'Connell Dist. Ct. J.) and distributed the edited affidavits to the appellants. He made less deletions to the affidavits than those made by O'Connell Dist. Ct. J. The appellants had the opportunity to cross-examine the affiant, Dennis Pearce, at length on his affidavits. No appeal was taken of Watt J.'s decision.
The trial before O'Connell Dist. Ct. J. finally resumed. After the jury was selected in October 1987, the trial effectively commenced on November 16, 1987. Between November 19, 1987 and April 18, 1988, the Crown called 98 witnesses, tendered 98 exhibits and played approximately 600 tape recordings of private intercepted communications. Between April 19, 1988 and May 9, 1988, the defence (the appellants) called 30 witnesses and tendered 27 exhibits. The address to the jury by counsel lasted eight days (May 16-19 and 24-27, 1988). O'Connell Dist. Ct. J. made his charge to the jury on May 30, and June 1 and 2, 1988.
After 10 days of deliberation, the jury rendered its verdict on June 11, 1988. Of the 27 persons originally indicted in the District Court, seven had their charges stayed by the court at the request of the Crown before, during or after the conclusion of the trial; 13 entered pleas of guilty before or during the trial; six were convicted (including the three appellants and Rawley Durette) and one was acquitted. Those convicted were sentenced in June and July 1988.
In June and December 1988, the three appellants and the co-accused Rawley Durette filed a notice of appeal to the Ontario Court of Appeal, appealing their convictions and sentences. The appellants' and Rawley Durette's appeals were dismissed by the Ontario Court of Appeal on May 15, 1992 (Brooke and Finlayson JJ.A. for the majority, Doherty J.A. dissenting). Based on that dissent, the appellants appealed their convictions to this Court as of right, while Rawley Durette did not.
Appellants' application for leave to appeal on other issues was dismissed by this Court on March 18, 1993, [1993] 1 S.C.R. vi.
Judgments
Ontario District Court (first Wilson application before Judge O'Connell)
O'Connell Dist. Ct. J. said that, after editing the affidavits in accordance with Parmar (No. 1), supra, he had ordered disclosure or access to the sealed packets containing the materials which Judge Scott of the Ontario District Court of Niagara relied on to grant the authorizations. He then stated that the "editing was undertaken to protect sensitive information, and the names of the informants".
O'Connell Dist. Ct. J. considered the constitutionality of Part IV.1 of the Criminal Code, R.S.C. 1970, c. C-34 (now Part VI of R.S.C., 1985, c. C-46 ). After reviewing Parmar (No. 1), he concluded that, in determining whether the facts revealed to the authorizing judge should be different from the facts proven on the review application, the former were the facts displayed in the original rather than the edited affidavit disclosed to the defence counsel; the reviewing judge should consider the non-edited affidavits. He also was of the opinion that the onus upon such an application rested upon the applicants and that the onus is discharged on adequate proof of, inter alia, fraudulent misrepresentation, intentional non-disclosure, negligent material misrepresentation or misleading disclosures. O'Connell Dist. Ct. J. further held that the factual material disclosed to the authorizing judge must be sufficient.
O'Connell Dist. Ct. J. reviewed the evidence, that is the testimony of the affiants and the witnesses and the affidavits, and concluded that:
It cannot be said that there is proven negligence amounting to material misrepresentation, material non‑disclosure, or that there is misleading disclosure, fraud, or simply non‑disclosure as to important facts, any of which would vitiate the authorizations. [Emphasis added.]
Furthermore, O'Connell Dist. Ct. J. applied the test set out in Wilson v. The Queen, supra, and concluded that, as a reviewing judge, he should not substitute his discretion for that of the authorizing judge unless the facts on which the authorizations were granted differed from the facts proved on the ex parte review. O'Connell Dist. Ct. J. then concluded that:
... it is my view that I am duty‑bound to review the affidavit which was put before the authorizing judge, notwithstanding that counsel for the applicants do not have a copy of that affidavit; they having been supplied with an edited copy.... [I]t seems to me impossible to review an affidavit and make a ruling as to whether a judge would have granted an authorization based on an affidavit without looking at that particular affidavit. I appreciate the issue that it raises ... but I believe, if I read Wilson correctly, that that is evidence under review, notwithstanding the editing.
O'Connell Dist. Ct. J. added that he would have come to the same conclusion with respect to the edited affidavit. He was of the opinion that there was a basis for the issuance of the authorizations and that
the affiants had reasonable and probable grounds to believe as to what they deposed to by stating that all the matters deposed to were true to the best of their knowledge and belief and were relevant as to the issue of whether the judge would grant the authorization sought. [Emphasis added.]
The application to quash the authorizations was therefore dismissed by O'Connell Dist. Ct. J.
Supreme Court of Ontario (motion in the nature of certiorari before Watt J.) (1987), 61 O.R. (2d) 590
Watt J. held that the test to be applied on an application by way of certiorari is whether there was some evidence upon which the reviewing judge could have been satisfied that there was some evidence before the authorizing judge upon which he could have been satisfied that there was compliance with the Criminal Code provisions. Further, rulings of an evidentiary nature made in the course of the review hearing are not subject to review by the superior court unless they result in errors of a jurisdictional nature.
On the point of whether or not the facts proved on the review hearing were different from the facts before the authorizing judge (Scott Dist. Ct. J.) and O'Connell Dist. Ct. J.'s view that he was required to have regard to the unedited affidavit notwithstanding that it had not been disclosed in full to defence counsel, Watt J. found that O'Connell Dist. Ct. J.'s decision did not constitute a jurisdictional error.
Similarly, Watt J. held that O'Connell Dist. Ct. J. was entitled to make rulings as to the scope of cross-examination of the affiants and entitled to hold that a person who had supplied the information to the affiants (a "sub-affiant") could not be cross-examined. It was plainly within O'Connell Dist. Ct. J.'s authority to limit the scope of cross-examination, to determine whether certain persons should be cross-examined and whether certain evidence sought to be admitted ought to be received as relevant. In making these determinations, in his view, O'Connell Dist. Ct. J. did not exceed his jurisdiction nor breach the rules of natural justice.
Finally, Watt J. concluded, at p. 603:
Neither am I persuaded that there was not some evidence upon the basis of which the reviewing judge [O'Connell Dist. Ct. J.] could have been satisfied that there was some evidence before the learned authorizing judge [Scott Dist. Ct. J.] upon which he could have been satisfied of the necessary prerequisites of Part IV.1 to issue the impugned orders. [Emphasis added.]
Watt J. dismissed the motion in the nature of certiorari.
Ontario Court of Appeal (1992), 72 C.C.C. (3d) 421
Finlayson J.A. (Brooke J.A. concurring)
Finlayson J.A., writing for the majority, dealt with the issue of the validity of the authorizations to intercept private communications and the admissibility and use of the taped recordings and dismissed the appellants' submissions as to: (1) the failure of the trial judge to provide judicial summaries of edited material; (2) his improper editing of affidavits supporting the wiretap authorizations; and (3) his refusal to permit cross-examination of police officers who had provided information to deponents of affidavits supporting authorizations.
Finlayson J.A. examined the decision of the Supreme Court of Canada in R. v. Garofoli, [1990] 2 S.C.R. 1421, and concluded that "all questions relating to wiretaps can and should be dealt with by the trial judge. He is obliged to consider them along with any other issue relating to the reception of evidence" (p. 445). Therefore, the issues were whether the wiretaps were authorized by law and were carried out according to the terms of the authorizations. Finlayson J.A., then, noted that the problem in wiretap cases was that the material supporting the authorizations is in a sealed packet which can only be opened by a judge, and when the packet is opened, only an edited version of the material is made available to the defence. However, Finlayson J.A., relying on Garofoli, which followed Parmar (No.1), supra, said that the court should determine "whether what was done by the trial judge fell so far short of the spirit of the procedural standard suggested by Sopinka J. [in Garofoli] that we feel compelled to order a new trial" (p. 447).
Finlayson J.A. concluded that the appellants' case was not impaired by O'Connell Dist. Ct. J.'s failure to provide summaries. He noted that the appellants had not requested summaries and emphasized that the real issue was the editing process undertaken by O'Connell Dist. Ct. J. He pointed out that O'Connell Dist. Ct. J. had advised counsel of the method he was using in editing the affidavits and that there had been no objections to the proposed procedure. He noted that the differences between the edited versions of the affidavits by O'Connell Dist. Ct. J. as compared by Watt J. lead to the conclusion that O'Connell Dist. Ct. J. had not followed to the letter the guidelines proposed by Watt J. in Parmar (No.1). Finlayson J.A. nevertheless concluded that (at pp. 449-50):
On the other hand, the information excised [from the affidavits], while substantial in terms of quantity, is nothing more than a further recital, with specific examples, of how these biker gangs conducted their illegal drug operations.... In one sense, the edited material adds nothing to what is on the public record at trial.... I am satisfied that there was an abundance of evidence to support the original authorizations. In looking at all of the excised material in isolation, I am at a loss to understand how it could have assisted these appellants at trial in effectively opposing the admissibility of the wiretap evidence affecting them.
My own view is that the trial judge was over-cautious in his attempts to protect the identity of the informants and the nature of the undercover operation. I also question whether he should have deleted matters that he felt constituted improper or irrelevant commentary. That is but one opinion, however, and is not enough to override that of an experienced trial judge.
Therefore, I do not think O'Connell J.'s editing amounted to an error of law. If his decision is such an error, then in my opinion it occasioned no substantial wrong or miscarriage of justice. [Emphasis added.]
Finlayson J.A. then agreed with O'Connell Dist. Ct. J. that the authorizations should not be set aside on the basis that all known targets were not named and that the outcome on this issue would not have changed had the defence been provided with the edited material. Finlayson J.A. also thought that the silence of defence counsel before O'Connell Dist. Ct. J. regarding the edited affidavits of Bowlby J. lead to the conclusion that the editing of Bowlby J. was either similar to that of O'Connell Dist. Ct. J. or that what was revealed by comparing the two edited versions was not significant.
Finlayson J.A. concluded that (at p. 453):
On balance, I do not think the appellants Farinacci, Lépine and Jeffreys can show significant prejudice as a result of the editing process. In the absence of such prejudice, the failure of the trial judge to fully anticipate guidelines that would be set down by subsequent courts for editing affidavits is not sufficient, on appeal, to set aside the authorizations in question.
Finlayson J.A. stated that, even after cross‑examination of the affiants, the defence had been unable to make out a case, to the satisfaction of O'Connell Dist. Ct. J., and then noted that defence counsel had not cross‑examined the sub‑affiants that did testify and concluded that O'Connell Dist. Ct. J.'s view was correct in not allowing another trial simply on the Wilson application.
Finlayson J.A.'s final conclusion was that the trial judge was right in holding that the authorizations to intercept private communications were valid, expressing the view that the appellants "received anything less than a fair trial" (p. 456). He dismissed the appeals against convictions as well as against sentences.
Doherty J.A. (dissenting)
Doherty J.A., relying on the decision of our Court R. v. Stinchcombe, [1991] 3 S.C.R. 326, stated that full disclosure to the defence of all material information, subject to certain exceptions based on overriding public interest concerns, was a constitutionally mandated standard. The affidavits were, in his view, "clearly material" to the admissibility of the interceptions and concluded that (at p. 466):
Apart from public interest concerns which may operate in a particular case, I see no reason why an accused should not be entitled to see exactly what the judge saw who relied on the affidavits to issue the authorization. Disclosure of the full affidavit should be the starting premise. Anything less potentially impairs an accused's ability to make full answer and defence and must be justified by the Crown in accordance with established principles.
Doherty J.A. then went on to say that a deletion from an affidavit before it was disclosed to the defence derogated from the goal of full public visibility of the administration of criminal justice and potentially adversely affects public confidence in our system of criminal justice. Therefore, a trial judge should make only those deletions which are essential to give effect to confidentiality concerns that remain paramount as of the time the editing is sought.
Doherty J.A. concluded that O'Connell Dist. Ct. J. did not correctly apply the principles set out in Parmar (No.1), supra, for the following reasons (at pp. 471-73):
First, the trial judge edited the affidavits extensively without any input from the Crown or any information beyond that which appeared in the affidavits.... [T]he trial judge should have called upon the Crown to justify the continued need for confidentiality of those sources. Without that inquiry, there could be no valid assessment of what parts of the affidavit should be excised before they were turned over to the accused.
Secondly, the trial judge repeatedly indicated that he deleted "information from informants and others which is to be protected"....
It appears that in editing the affidavits the trial judge sought not only to protect the identity of informants, but to exclude from defence scrutiny all information obtained from those informants. In doing so, he took much too broad an approach to the editing process.
Thirdly, the trial judge indicated that he had edited out of the affidavits material which he regarded as "commentary" or "opinion" or "summary". Such characterizations have no role in the editing process.... It may be that allegations properly characterized as "commentary" or "opinion" have no place in the affidavit. This is not, however, any reason to remove them from the affidavit during the editing process....
Fourthly, the trial judge indicated that the editing of the same affidavits done by the judge [Bowlby J.] who presided over the earlier trial of the first group of accused was "irrelevant" to his editing task. With respect, it was very relevant.... [T]he trial judge's failure to appreciate the significance of the earlier editing process to his task further confirms my view that he misunderstood and misapplied the factors relevant to the editing of the affidavits.
Fifthly and finally, the editing of two of the affidavits by Watt J. in the course of a "Wilson" application brought during this trial provides cogent evidence that the trial judge went well beyond what was required when editing the affidavits.... One can only conclude from this comparison that the trial judge went well beyond what was necessary to protect the public interest when he edited the two affidavits which were subsequently placed before Watt J.
The trial record compels the conclusion that the trial judge misapplied the factors relevant to the editing of the affidavits. An examination of the unedited affidavits which were made available to this court confirms that this misapplication resulted in considerable unwarranted editing of the affidavits.
Doherty J.A. concluded that the deletions kept from the appellants a substantial body of material which they were entitled to have when mounting their challenge to the admissibility of the intercepted communications. It was not simply a case of over-cautiousness from the trial judge. Furthermore, since the deletions prevented a proper and full inquiry into the validity of the authorizations, the appellants did establish an error in law.
In view of this error of law, the onus was on the Crown to establish that no substantial wrong or miscarriage of justice occurred, according to Doherty J.A. There was no onus on the appellants to show that the error prejudiced them at the trial. Doherty J.A. concluded that (at p. 479):
In my opinion, the Crown cannot establish that the improper editing of the affidavits resulted in no substantial wrong or miscarriage of justice. It cannot be concluded with any degree of certainty that had the appellants had proper access to all of the material in the affidavits, the authorizations would necessarily have been held valid and the "wiretap" evidence admissible. There is simply no way of knowing what further evidence might have come out on the cross‑examination of the affiants had the entire affidavits been available, what further evidence might have been adduced had the appellants been aware of the improperly edited portions of the affidavits, or what different challenges to the authorizations the appellants may have made had they received the access to the affidavits to which they were entitled.
Doherty J.A. would have allowed the appeals, quashed the convictions and ordered a new trial.
The Issue
The only issue before this Court is whether the editing by the trial judge of the affidavits in support of the authorizations to intercept private communications deprived the appellants of their right to make full answer and defence as guaranteed by ss. 7 and 11( d ) of the Canadian Charter of Rights and Freedoms . In other words, did the editing process followed by the trial judge constitute an error of law and, if so, did such error violate appellants' Charter rights?
It is important to note at this stage that, at the hearing before us, counsel for the appellants recognized that had the affidavits submitted to the judge in order to obtain the wiretap authorizations contained only the edited affidavits, such affidavits would have been sufficient for the issuing of the authorizations since, in his words, "there appear to be reasonable and probable grounds" (Transcript of Audio Tapes of Proceedings, at p. 136). Therefore, in my view, wiretap evidence was admissible at trial and, consequently, properly admitted.
Finally, before dealing with the crux of the appeals, it is not without interest to recall the jurisprudential history which has led to the development of the procedural requirements in the field of wiretap authorizations.
- II -
In adopting s. 178.14(1)(a)(ii) of the Criminal Code , the legislator did not indicate the basis upon which the sealed packet were to be opened, simply stating that it "shall not be (a) opened ... except (ii) pursuant to an order of a judge ... ". It left the courts with the task of deciding the proper approach to the matter. That was done not without sharp division between different courts, particularly between the Ontario Court of Appeal and the British Columbia Court of Appeal, with both courts having their own adepts, creating a huge body of contradictory jurisprudence in courts of first instance and fostering a number of appeals which finally reached the Supreme Court of Canada.
The two approaches were based on a divergent interpretation of s. 178.14(1)(a)(ii). For the British Columbia Court of Appeal (Re Regina and Dersch (1987), 36 C.C.C. (3d) 435), the rule embodied in that section being the secrecy of the sealed packet, the exception had to be interpreted narrowly. For the Ontario Court of Appeal (R. v. Playford (1987), 40 C.C.C. (3d) 142; R. v. Lachance (1988), 27 O.A.C. 45; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1; and R. v. Garofoli (1988), 41 C.C.C. (3d) 97), the principle of openness set out in Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, a pre-Charter decision regarding the public's right of access to search warrants, was the starting point. The Supreme Court embraced the latter point of view (Garofoli, supra; R. v. Lachance, [1990] 2 S.C.R. 1490; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; and R. v. Zito, [1990] 2 S.C.R. 1520).
The foundations of this whole jurisprudence, however, were laid much earlier and it is my view that when s. 178.14(1)(a)(ii) of the Criminal Code was adopted in 1974, Parliament was entitled to rely on what was settled law at the time.
From time immemorial in the common law and under the Criminal Code , once a justice had authorized the issuance of a warrant, that authorization could not be challenged (see: Poje v. Attorney General for British Columbia, [1953] 1 S.C.R. 516, aff'g sub nom. Canadian Transport (U.K.) Ltd. v. Alsbury, [1953] 1 D.L.R. 385 (B.C.C.A.), and authorities referred to in judgments of the majority at pp. 406 and 418-19; Maynard v. Maynard, [1951] S.C.R. 346; Badar Bee v. Habib Merican Noordin, [1909] A.C. 615 (P.C.); and Gibson v. Le Temps Publishing Co. (1903), 6 O.L.R. 690 (C.A.), at pp. 694-95).
McIntyre J. held in Wilson v. The Queen, supra, at p. 604:
The cases cited above and the authorities referred to therein confirm the well-established and fundamentally important rule, relied on in the case at bar in the Manitoba Court of Appeal, that an order of a court which has not been set aside or varied on appeal may not be collaterally attacked and must receive full effect according to its terms.
The authorizations in question here are all orders of a superior court. Unless Parliament has altered or varied the rule above-described, it would apply in this case. It would then follow that in this action to determine the guilt or innocence of the accused the trial judge was in error in entertaining a collateral attack on the validity of the authorizations and, in effect, going behind them. Support for this view, with some qualifications for cases where there has been a defect on the face of the authorization or fraud, is to be found in R. v. Welsh and Iannuzzi (No. 6) (1977), 32 C.C.C. (2d) 363 (Ont. C.A.), where Zuber J.A., at pp. 371-72, said:
Ordinarily the trial Court is obliged to simply accept the authorization at face value. Cases in which a trial Court could decline to accept the authorization would be rare indeed and, without attempting to set out an exhaustive list, would include cases in which the authorization was defective on its face, or was vitiated by reason of having been obtained by a fraud. However, even an authorization that was said to be defective on its face may attract the curative provisions of s. 178.16(2)(b).... [Emphasis added.]
He then said, at p. 605:
The question then is: has Parliament by the enactment of Part IV.1 of the Criminal Code altered the rule which would render the authorizations immune from collateral attack? In my opinion, the answer must be no.
McIntyre J. relied upon R. v. Welsh and Iannuzzi (No. 6) (1977), 32 C.C.C. (2d) 363 (Ont. C.A.), in which Zuber J.A. also stated, at p. 371:
The authorization, once given, enables the authorities to proceed to a lawful interception [of private communications]. A second consideration of the adequacy of the material supporting the authorization by the trial Judge, for the purpose of determining retrospectively whether or not the interception was lawful, is inconsistent with the whole scheme of Part IV.1 of the Code. [Emphasis added.]
Wilson v. The Queen, supra, was unanimously re-affirmed by this Court in R. v. Meltzer, [1989] 1 S.C.R. 1764: an authorization which has not been set aside is not subject to collateral attack and must be given full effect according to its terms.
Before the advent of the Charter , once an authorization to intercept private communications was given and appeared on its face to be valid, no further search into its confidential materials could be done, except in rare and exceptional circumstances (Re Royal Commission Inquiry into the Activities of Royal American Shows Inc. (No. 3) (1978), 40 C.C.C. (2d) 212 (Alta. S.C.T.D.), at p. 220). Rare and exceptional circumstances were found to occur where the authorization was obtained by fraud, non-disclosure or for an unlawful purpose or where a man's innocence was directly at stake (Re Miller and Thomas and The Queen (1975), 23 C.C.C. (2d) 257 (B.C.S.C.)), or where the evidence was not compatible with the face of the authorization (R. v. Cheng (1976), 33 C.C.C. (2d) 441 (B.C. Co. Ct.), at p. 444; R. v. Madden, Ont. Co. Ct., April 28, 1977, at p. 45 (Locke Co. Ct. J.), unreported). This list of exceptional circumstances was held not to be exhaustive (R. v. Wai Ting Li (No. 1), [1976] 6 W.W.R. 128 (B.C. Co. Ct.), at p. 137; Welsh and Iannuzzi, supra, at pp. 371-72), but the study of the case law shows that it was in fact; no other "exceptional circumstances" were mentioned. Similar reasons to review the authorizations were given by the courts: "fraud or deception" (Wai Ting Li, supra, at p. 137); "deception, fraud or an error or mistake or omission amounting to a substantive defect" (R. v. Haslam (1976), 3 C.R. (3d) 248 (Nfld. Dist. Ct.), at p. 256).
For example, in Re Stewart and The Queen (1976), 30 C.C.C. (2d) 391 (Ont. H.C.), the authorization was successfully challenged by the defence on the ground that the Crown had not mentioned to the authorizing judge that a similar charge had already been laid against the accused without electronic surveillance. This non-disclosure vitiated the authorization because it withheld from the authorizing judge that other means of investigation existed; the wiretapping was not, therefore, appropriate.
This illustrates that, in the pre-Charter era, authorizations to intercept private communications could not be challenged, unless fraud or non-disclosure was alleged. (See: Re Regina and Kozak (1976), 32 C.C.C. (2d) 235 (B.C.S.C.); Re Regina and Collos (1977), 37 C.C.C. (2d) 405 (B.C.C.A.); R. v. Gill (1980), 18 C.R. (3d) 390 (B.C.C.A.). See also: Stanley A. Cohen, Invasion of Privacy: Police and Electronic Surveillance in Canada (1983), at pp. 156-58; Daniel A. Bellemare, L'écoute électronique au Canada (1981), at pp. 352-61; and David Watt, Law of Electronic Surveillance in Canada (1979), at pp. 248-55.) There was simply no right for an accused to have the sealed packet opened upon request. Dickson J. (later C.J.), in a concurrent opinion in Wilson v. The Queen, supra, found that the trial judge had made a prima facie finding of misleading disclosure and, therefore, expressed the following obiter dictum, at p. 622:
It is not necessary to decide whether this restricted view of s. 178.14 is correct. There is a broad consensus that prima facie evidence of fraud or non-disclosure is a valid reason for opening the packet. Misleading disclosure would be in the same category. [Emphasis added.]
Any application for review of an authorization had to be presented before the court that made it (Wilson v. The Queen, supra, at p. 607 (McIntyre J.)). However, a mere attempt to attack the admissibility of the evidence based on speculation was not enough per se. As Bellemare, supra, wrote, at p. 353:
[translation] It must first be pointed out that the review of the authorization implicitly provided for in s. 178.14(1)(a)(ii) must not be used as a pretext for "fishing expeditions". In other words, the remedy provided for in s. 178.14(1)(a)(ii) was not enacted to DISCOVER any substantive irregularities that may have tainted the authorization issuing process, but rather to ASCERTAIN and CONFIRM the existence of substantive defects otherwise discovered by the applicant, which must have been previously alleged and established by him in court. [Emphasis added; italics in original.]
In my view, the following passage of Anderson J.'s (later J.A.) decision in Miller and Thomas, supra, at p. 288, represented the state of the law at the time:
Another reason for holding that there is no right of review, is that, in my opinion, Parliament did not provide for or intend that the sealed packet be opened merely for the purpose of ascertaining whether grounds existed for quashing the authorization. I do not think that a judicial discretion (to open the packet) should be exercised on the basis that defence counsel wish to engage in a fishing expedition. Surely, at the very least, some grounds must be stated before an application to open the packet can succeed. If this were not so, the material which Parliament ordered should be kept secret would become a matter of public knowledge, in every case, where it was stated that the Crown wished to make use of private communications or evidence derived by the use of private communications. All that would be required to obtain an order to have the packet opened and copies of the material made available to defence counsel would be a request that counsel desired to see the material contained in the sealed packet for purposes of their defence. Although it may be presumed that 99% of all affidavits filed pursuant to s. 178.13 would be flawless in every respect, yet the highly confidential material would be aired to public view in all cases. [Emphasis added.]
This view is consistent with the general and long held rule in criminal and civil law forbidding fishing expeditions (Cloutier v. The Queen, [1979] 2 S.C.R. 709; McKercher v. Vancouver-Iowa Shingle Co., [1929] 4 D.L.R. 231 (B.C.S.C.); Wright v. Doe (1837), 7 AD. & E. 313, 112 E.R. 488 (Ex. Ch.); Cross on Evidence (7th ed. 1990), at pp. 51 et seq.; Halsbury's Laws of England (4th ed. 1976), vol. 17, para. 5, at p. 7; and Wigmore on Evidence (3rd ed. 1940), vol. 1, para. 9, at p. 289). See also, in the context of wiretap authorizations: Re Royal Commission Inquiry into the Activities of Royal American Shows Inc. (No. 3), supra, at p. 219; Haslam, supra, at pp. 256-58; R. v. Sabloff, Sup. Ct. Montréal, No. 500-27-005928-79, October 10, 1979, J.E. 80-73, at p. 13 (Greenberg J.); Re Donnelly and Acheson and The Queen (1976), 29 C.C.C. (2d) 58 (Alta. S.C.T.D.), at p. 65; Re Stewart and The Queen, supra, at pp. 401-2; and R. v. Sklar, B.C.S.C., October 17, 1975, at p. 11 (Toy J.), unreported.
That was before the Charter . Since the advent of the Charter , a line of cases ordering unlimited access to the sealed packet arose and culminated with the majority opinion of this Court in Garofoli, Lachance, Dersch and Zito, supra.
A review of post-Charter decisions involving the opening of the sealed packet begins with the decision of the Ontario Court of Appeal in R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48 (leave to appeal to the Supreme Court of Canada refused, February 28, 1986, [1986] 1 S.C.R. ix). Martin J.A. (Blair J.A. and Cory J.A. (now of this Court) concurring) stated at p. 76:
The case-law severely restricts the accused's access to the sealed packet and generally is to the effect that the sealed packet may only be opened where there is prima facie evidence of fraud or non-disclosure: see Re Miller and Thomas and The Queen...; Re Stewart and The Queen...; Re Royal Com'n Inquiry into Activities of Royal American Shows Inc. (No. 3) ...; Watt ...; Cohen ... [References omitted.]
However, as Martin J.A. noted (at p. 77):
Counsel for the appellants stated that in consequence of the restriction placed on an accused's access to the sealed packet, the accused finds himself in an impossible situation. To ascertain whether there has been fraud or non-disclosure he requires access to the sealed packet, but he cannot gain access to the sealed packet unless he proves fraud or non-disclosure....
Counsel for the appellants contended that the denial to the accused of access to the application and accompanying material leading to the authorization precludes the accused from making full answer and defence and hence Part IV.1 is unconstitutional. Mr. Hubbard for the Attorney-General of Canada responded to this argument by pointing out, quite correctly in my view, that no provision in Part IV.1 and, in particular, no provision in s. 178.14 providing for the confidentiality of the material leading to the authorization denies an accused access to that material where it is essential to his defence. Rather, he said such denial results from the way in which the provisions have been interpreted by the courts. [Italics in original.]
He then observed (at p. 77):
It may be that the interests protected by the policy underlying the restriction of an accused's access to the sealed packet can in many cases be effectively protected in other ways, e.g., by deleting in the copy supplied to the accused the names of informers and innocent persons who might be injured by the revelation of their names.
In Wilson v. The Queen, supra, Mr. Justice Dickson said at p. 621 S.C.R., p. 109 C.C.C., p. 589 D.L.R.:
The affidavit would not need to be made public in order to rule evidence inadmissible; selected aspects only could be made public. As Stanley A. Cohen suggests in his work Invasion of Privacy: Police and Electronic Surveillance in Canada (1983), the integrity of the packet might be preserved "through judicial screening and, if access is necessary, judicial editing" (p. 155).
Martin J.A., while dismissing the appeal, then concluded as follows at p. 77:
In any event, I do not consider that the case-law restricting the accused's access to the sealed packet renders Part IV.1 unconstitutional. The restriction may be relevant to the issue of whether the accused in a particular case has been denied a fair trial, secured by s. 7 of the Charter , but it does not render Part IV.1 unconstitutional as contravening s. 8 of the Charter . [Emphasis added.]
That decision was interpreted in subsequent cases as a proposition for the opening of the packet even in the absence of allegations of fraud, non-disclosure or misleading disclosure (R. v. Ross (1985), 26 C.C.C. (3d) 264 (Ont. Dist. Ct.); R. v. Wood (1986), 26 C.C.C. (3d) 77 (Ont. H.C.); R. v. Martel (1986), 27 C.C.C. (3d) 508 (P.E.I.S.C. in banco); R. v. Stacey, Ont. H.C., May 20, 1986, Callaghan A.C.J.H.C., unreported; R. v. Birt and Anderson (1986), 31 C.C.C. (3d) 176 (Alta. Q.B.); R. v. Madsen and Scobel (1986), 31 C.C.C. (3d) 249 (N.W.T.S.C.); R. v. Graves (1987), 31 C.C.C. (3d) 552 (N.S.S.C.T.D.); R. v. Pascoe (1987), 32 C.C.C. (3d) 61 (Sask. Q.B.); and R. v. Martin (1986), 32 C.C.C. (3d) 257 (Ont. H.C.)).
A contrary view was expressed in Miller and Thomas, supra, where Anderson J. held that the sealed packet could only be opened where an accused had demonstrated that an authorization was obtained by fraud, non-disclosure or for an unlawful purpose. That decision was also followed in a number of subsequent cases (R. v. Rowbotham (1984), 42 C.R. (3d) 164 (Ont. H.C.); Re Regina and Dersch (1986), 32 C.C.C. (3d) 346 (B.C.S.C.); R. v. Stensrud and Smith (1987), 56 Sask. R. 44 (Q.B.)), and particularly in the case of Dersch (B.C.C.A.), supra, where Esson J.A. (later C.J.S.C.) undertook a comprehensive and detailed analysis of the case law on this issue including Parmar (No. 1), supra. In that case, Watt J. of the Ontario High Court of Justice had recognized an automatic right to access to the sealed packet by an accused. Esson J.A. strongly objected to Parmar (No. 1)'s "constitutional right to fish" in the following terms (at p. 465):
The law forbids fishing in [constitutional] waters. The law which forbids fishing does not offend the constitution. It is therefore in full force and effect. So there must still be no fishing in these waters.
Concluding that the automatic opening of the packet was neither a constitutional requirement nor a proper interpretation of s. 178.14(1)(a)(ii) of the Criminal Code , Esson J.A. summarized his reasons (at pp. 475-76):
The basic reason for that conclusion is that the Charter has not affected, in any general way, the statutory and case law which restricts access to the packet and precludes the trial judge from going behind the authorization. That follows from the finding that Part IV.1 is consistent with the Charter .
The reasoning in the unrestricted access cases disregards the significance of the constitutionality of the legislation and, beyond that, is based on errors including the following:
1.It relies upon a process of reading down the language of the law and reading in substitute provisions deemed by the court to be more appropriate. That approach would not be permissible even if done with a view to salvaging the constitutionality of the law (Hunter v. Southam). It is even less justified when done in respect of a law of unchallenged constitutionality.
2.It gives to the language of ss. 7 and 11( d ) of the Charter expanded meanings without regard to the history and traditions of our law; and without regard to the purpose intended to be achieved by the Charter sections.
3.It overlooks the significance of s. 24(2) which is the specific Charter provision governing exclusion of evidence; and overlooks the consideration that the careful balancing of interests in that section renders it particularly inappropriate to apply the Charter to extend the scope of the arbitrary and unbalanced exclusionary rule embodied in s. 178.16 of the Code.
4.It applies the presumption of innocence, which is applicable to individuals who face charges, to negate general laws based on the recognition that we have and always will have crime and criminals.
In Playford, supra, the Ontario Court of Appeal rejected Esson J.A.'s analysis on the basis that (at pp. 180-81, Goodman J.A. (Blair and Cory JJ.A. concurring)):
... once the authorization and any renewal thereof has expired or the investigation of the offence and the persons suspected of being involved therein has been completed, there is no logical or policy reason to refuse to reveal the contents of the sealed packet, provided that, where appropriate to protect the identity of an informant, the contents of the sealed packet may be properly edited. It is no answer to say that the provision of access by the accused to the affidavit may result in a fishing expedition which will unduly lengthen trials.... There is no sensible reason for requiring an accused to provide an evidentiary basis for requiring a sealed packet to be opened. As pointed out previously, the evidentiary basis may exist in the material in the sealed packet to which he [or she] does not have access.
Playford was followed in the subsequent cases of Rowbotham, Lachance and Garofoli of the Ontario Court of Appeal. In R. v. Zito (1988), 42 C.C.C. (3d) 565, McCarthy J.A. of the Quebec Court of Appeal (Bisson J.A. (now C.J.) and Philippon J. (ad hoc) concurring) applied the decisions of the Ontario Court of Appeal in Rowbotham and Garofoli to hold that the sealed packet must be opened. Garofoli, Lachance, Dersch and Zito reached our Court where a majority agreed with the positions taken by the Court of Appeal of Ontario. In Dersch, Sopinka J. for the majority held, at p. 1517:
Prima facie misconduct is not required to be shown by the accused applicant who seeks access to the sealed packet. The assertion, as in this case, that the admission of the evidence is challenged and that access is required in order to permit full answer and defence to be made is sufficient.
The minority, per McLachlin J., in which I concurred, "[o]n a balancing approach", would have required an accused to "make a preliminary showing that his or her interest in privacy or a fair trial justifies opening the packet" (Garofoli, supra, at p. 1482). That view did not prevail.
That there is an automatic right for an accused to open the sealed packet was settled by Dersch. Also, in accordance with such a right, that the judge on a Wilson review is entitled to edit the contents of the sealed package to protect the state's legitimate interest in the non-disclosure of the identity of informers and the police investigation techniques is settled by Garofoli.
Section 178.14 of the Criminal Code of 1970 was the law at the time of the trials in Garofoli, Lachance, Dersch and Zito and, accordingly, our judgments in those cases were based on s. 178.14 of the Criminal Code . Since then, s. 178.14 was reenacted as s. 187 of the Criminal Code , R.S.C., 1985, c. C-46 (in the new Part VI), and amended by the Criminal Law Amendment Act, 1985, R.S.C., 1985, c. 27 (1st Supp.). This amendment has not modified the substance of the former s. 178.14(1)(a)(ii). The present appeals are governed by this s. 187:
187. (1) All documents relating to an application made pursuant to section 185 or subsection 186(6) or 196(2) are confidential and, with the exception of the authorization, shall be placed in a packet and sealed by the judge to whom the application is made immediately on determination of the application, and that packet shall be kept in the custody of the court in a place to which the public has no access or in such other place as the judge may authorize and shall not be
(a) opened or the contents thereof removed except
(i) for the purpose of dealing with an application for renewal of the authorization, or
(ii) pursuant to an order of a judge of a superior court of criminal jurisdiction or a judge as defined in section 552; [Modifications underlined.]
However, that s. 187 of the Criminal Code was repealed by An Act to amend the Criminal Code, the Crown Liability and Proceedings Act and the Radiocommunication Act, S.C. 1993, c. 40, s. 7 (Bill C-10), which came into force on August 1, 1993, and replaced by the following disposition:
187. (1) All documents relating to an application made pursuant to any provision of this Part are confidential and, subject to subsection (1.1), shall be placed in a packet and sealed by the judge to whom the application is made immediately on determination of the application, and that packet shall be kept in the custody of the court in a place to which the public has no access or in such other place as the judge may authorize and shall not be dealt with except in accordance with subsections (1.2) to (1.5).
(1.1) An authorization given under this Part need not be placed in the packet except where, pursuant to subsection 184.3(7) or (8), the original authorization is in the hands of the judge, in which case that judge must place it in the packet and the facsimile remains with the applicant.
(1.2) The sealed packet may be opened and its contents removed for the purpose of dealing with an application for a further authorization or with an application for renewal of an authorization.
(1.3) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may order that the sealed packet be opened and its contents removed for the purpose of copying and examining the documents contained in the packet.
(1.4) A judge or provincial court judge before whom a trial is to be held and who has jurisdiction in the province in which an authorization was given may order that the sealed packet be opened and its contents removed for the purpose of copying and examining the documents contained in the packet if
(a) any matter relevant to the authorization or any evidence obtained pursuant to the authorization is in issue in the trial; and
(b) the accused applies for such an order for the purpose of consulting the documents to prepare for trial.
(1.5) Where a sealed packet is opened, its contents shall not be destroyed except pursuant to an order of a judge of the same court as the judge who gave the authorization.
(2) An order under subsection (1.2), (1.3), (1.4) or (1.5) made with respect to documents relating to an application made pursuant to section 185 or subsection 186(6) or 196(2) may only be made after the Attorney General or the Solicitor General by whom or on whose authority the application for the authorization to which the order relates was made has been given an opportunity to be heard.
(3) An order under subsection (1.2), (1.3), (1.4) or (1.5) made with respect to documents relating to an application made pursuant to subsection 184.2(2) or section 184.3 may only be made after the Attorney General has been given an opportunity to be heard.
(4) Where a prosecution has been commenced and an accused applies for an order for the copying and examination of documents pursuant to subsection (1.3) or (1.4), the judge shall not, notwithstanding those subsections, provide any copy of any document to the accused until the prosecutor has deleted any part of the copy of the document that the prosecutor believes would be prejudicial to the public interest, including any part that the prosecutor believes could
(a) compromise the identity of any confidential informant;
(b) compromise the nature and extent of ongoing investigations;
(c) endanger persons engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used; or
(d) prejudice the interests of innocent persons.
(5) After the prosecutor has deleted the parts of the copy of the document to be given to the accused under subsection (4), the accused shall be provided with an edited copy of the document.
(6) After the accused has received an edited copy of a document, the prosecutor shall keep a copy of the original document, and an edited copy of the document and the original document shall be returned to the packet and the packet resealed.
(7) An accused to whom an edited copy of a document has been provided pursuant to subsection (5) may request that the judge before whom the trial is to be held order that any part of the document deleted by the prosecutor be made available to the accused, and the judge shall order that a copy of any part that, in the opinion of the judge, is required in order for the accused to make full answer and defence and for which the provision of a judicial summary would not be sufficient, be made available to the accused. [Emphasis added.]
According to this new legislation, the opening of the packet is not mandatory and once the packet is opened, ss. 187(4) to 187(7) now provide a procedure for the editing of the affidavit and the reviewing of such editing. This new legislation makes it clear, in my view, that fishing expeditions are now out and the discretion of the review judge, who is now the trial judge, is enlarged as is the prosecution's, although the "accused shall be provided with an edited copy of the document", should the judge be satisfied that the conditions set on in subs. (1.4)(a) and (b) of s. 187 in particular are complied with as well as all other requirements of s. 187. It is only if the judge is of the opinion that a deleted part of the affidavit is required in order for the accused to make full answer and defence and for which the provision of a judicial summary would not be sufficient, that such part is to be made available to the accused. Moreover, the interests that the editing process are to protect are clearly set out in this new s. 187.
A further important consideration at the heart of this case is the necessity to protect the identity of police informers. As Beetz J., for the Court, said in Bisaillon v. Keable, [1983] 2 S.C.R. 60, at p. 93:
It follows from these reasons that at common law the secrecy rule regarding police informers' identity has chiefly taken form of rules of evidence based on the public interest, which prohibit judicial disclosure of police informers' identity by peace officers who have learned the informers' identity in the course of their duties. A witness also may not be compelled to state whether he [or she] is himself [or herself] a police informer. The rule was developed in criminal proceedings, apparently in trials for high treason, but it also applies in civil matters, and in both cases it has been established for reasons which relate to the essential effectiveness of the criminal law.... Its application does not depend on the judge's discretion, as it is a legal rule of public order by which the judge is bound. [Emphasis added.]
The only exception to that strict rule of very long standing is when an accused's innocence is at stake, which is clearly not the case here. Beetz J. wrote, at p. 93:
The rule is subject to only one exception, imposed by the need to demonstrate the innocence of an accused person. There are no exceptions in proceedings other than criminal.
There is no need to go to great lengths to know what is the fate of police informers in criminal trials, particularly so in drug trafficking and conspiracy cases. Police witness programs, which also apply to informers, eloquently speak to the dangers that such people are facing. Also significant is the expense which society incurs to insure the safety of those who, at the risk of their lives in many cases, help society rid itself of those criminal elements which jeopardize the foundation of a civilized world, and the security and well-being of its citizens. Editing the information relating to wiretap by the police of conversations in the context of a criminal investigation is part of this effort by society to protect both the identity of informers and police investigation techniques. The unsubstantiated pretext of the right to full and fair defence should not be allowed to put in jeopardy such an important tool in the fight against crime.
The same concerns guided the developments in the common law world, including, for example, the American case law. In Roviaro v. United States, 353 U.S. 53 (1957), the leading case on "informers' privilege" and the non-disclosure of their identity, Burton J., speaking for the majority of the United States Supreme Court, underlined the rationale of the rule (at p. 59):
What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law.... The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. [Emphasis added.]
Clark J., in dissent, agreed (at pp. 66-67):
First, it is well to remember that the illegal traffic in narcotic drugs poses a most serious social problem .... Moreover, it is a most difficult crime to detect and prove.... Enforcement is, therefore, most difficult without the use of "stool pigeons" or informants. Their use has long had the approval of the courts. To give them protection governments have always followed a policy of nondisclosure of their identities. Experience teaches that once this policy is relaxed -- even though the informant be dead -- its effectiveness is destroyed. Once an informant is known the drug traffickers are quick to retaliate. Dead men tell no tales. The old penalty of tongue removal, once visited upon the informer Larunda, has been found obsolete. [Emphasis added.]
In McCray v. Illinois, 386 U.S. 300 (1967), the United States Supreme Court, in the context of a charge of possession of narcotics, reiterated its position (at p. 311, Stewart J. for the majority):
What Roviaro thus makes clear is that this Court was unwilling to impose any absolute rule requiring disclosure of an informer's identity even in formulating evidentiary rules for federal criminal trials. Much less has the Court ever approached the formulation of a federal evidentiary rule of compulsory disclosure where the issue is the preliminary one of probable cause, and guilt or innocence is not at stake. Indeed, we have repeatedly made clear that federal officers need not disclose an informer's identity in applying for an arrest or search warrant. [Emphasis added; italics in original.]
Even the United States Supreme Court, in the leading case of Franks v. Delaware, supra, did not go as far as our Court did in Dersch, supra. It held that the Fourth and Fourteenth Amendments require an evidentiary hearing if the accused makes a substantial preliminary showing that a false statement was included by the affiant intentionally or with reckless disregard for the truth and that the false statement is necessary to the finding of probable cause. It also emphasized that the "deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant" (Blackmun J., for the majority, at p. 171 (emphasis added)). The decision in Franks neither required nor contemplated routine disclosure of informant's identities and the Court took care to avoid deciding or predetermining "the difficult question whether a reviewing court must ever require the revelation of the identity of an informant once a substantial preliminary showing of falsity has been made" (Blackmun J., at p. 170). See also: Colorado v. Nunez, 465 U.S. 324 (1984), at pp. 326-27 (White J.).
The rule set out in Roviaro has been consistently followed in wiretapping cases. See: United Sates v. Cantor, 470 F.2d 890 (3d Cir. 1972), at p. 892 (Rosenn J.); United States v. D'Alfonso, 357 F. Supp. 1341 (E.D. Pa. 1973), at p. 1342 (Newcomer J.); People v. Sturgis, 352 N.Y.S.2d 942 (Sup. Ct. 1973), at pp. 948-49 (Myers J.); United States v. Garramone, 374 F. Supp. 256 (E.D. Pa. 1974), at p. 259 (Bechtle J.); and United States v. Danovaro, 877 F.2d 583 (7th Cir. 1989), at pp. 587-88 (Easterbrook J.).
In State of New Jersey v. Garcia, 618 A.2d 326 (1993), the Supreme Court of New Jersey held that, under a disposition creating an "official information privilege" (Rules of Evidence, N.J.S.A. 2A:84A, Rule 34), the State of New Jersey could not disclose to an accused the location from which police conducted surveillance of criminal activity. The court was concerned with the safety of ongoing police operations. Clifford J., for the court, made the following observations (at p. 330) which are apposite in the context of wiretapping where the safety of ongoing criminal investigations and police investigation techniques are equally at stake:
Failure to protect the confidential locations from which police have witnessed criminal activity would harm several important public interests. First, non-disclosure avoids compromising ongoing surveillances. Police officers often experience difficulty in finding places from which to observe criminal conduct unobtrusively.... Failure to conceal exact locations may force the State to choose between dropping the charges against a defendant or losing future arrests. Also, disclosure of the information might cause criminal offenders simply to relocate their activities to a place not visible from that surveillance location.
Second, the privilege, protects police officers and private citizens from reprisal. Officer McCauley hesitated to reveal the surveillance location in this case because he feared for his own safety and the safety of those who had cooperated with him. If those bent on crime were to learn of the location of surveillance activities, they might resort to violence or engage in vandalism to render that site useless.
Third, and related to the second reason, the privilege encourages citizens to cooperate with police. If citizens know that a defendant charged with an offense can learn the exact surveillance location, many will not permit use of their property. [Emphasis added.]
On the non-disclosure of the informers' identity in American law, see also: Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (2nd ed. 1987 & Supp. 1993), vol. 1, at pp. 697-711; Wigmore on Evidence, vol. 8 (McNaughton rev. 1961), para. 2374.
It is against this background that the present appeals must be decided.
- III -
The appellants' arguments relating to the sole issue of the editing by the review judge (O'Connell Dist. Ct. J.) of the wiretap authorizations are threefold:
1.The review judge edited the affidavits on his own, without first hearing submissions from the Crown;
2.He failed to provide defence counsel with judicial summaries of his deletions, thus denying them the opportunity to make effective submissions regarding those deletions; and
3.He deleted the following categories of information, contrary to the guidelines set out by the Supreme Court of Canada in Garofoli, supra:
- information regarding informers (as opposed to information identifying informers);
- information identifying informers whose identity may no longer have been confidential by the time of trial; and
- irrelevant information ("commentary", "summary" or "opinion").
I want to emphasize at the outset that the reviewing process in the Wilson application, and in fact the entire trial to which these appeals relate, took place before the decisions in Garofoli, Lachance, Dersch and Zito, supra, were rendered by our Court. The procedural guidelines at the time of the editing before O'Connell Dist. Ct. J. (May-June 1987) were set out by Watt J. in Parmar (No. 1), supra (rendered March 10, 1987). I will now deal with the three arguments of the appellants.
1.The Reviewing Process Followed by the Reviewing Judge
The appellants submit that the procedure adopted by the trial judge amounted to an error of law when he carried the main part of the editing on his own before receiving any submissions in open court from the Crown as to the nature of the matters to be edited and the basis therefor. According to them, since the police investigation was completed at the time of the editing and the affidavits in question were sworn in 1983 and 1984, three and four years before editing, the trial judge "had no basis upon which he could make an informed assessment of the continued need to preserve the confidentiality of the various sources described as confidential at the time the affidavits were prepared" (Doherty J.A, at p. 471), violating therefore steps one and two of the procedure set out by Sopinka J. in Garofoli, supra. In my view, this submission clearly has no merits, both in fact and in law.
As noted by Finlayson J.A. (at p. 448), when the trial judge announced his intent to edit the affidavits on his own, the appellants' counsel did not object to the proposed procedure. Moreover, O'Connell Dist. Ct. J. closely followed each step of the editing methodology recommended by Watt J. in Parmar (No. 1), supra, at pp. 281-82, which was the law at the time. O'Connell Dist. Ct. J. granted the appellants' application and opened the nine sealed packets, although seven were asked for, including therefore the seven District Court authorizations and the two Supreme Court of Ontario authorizations. At a time when the onus on the reasons for access to the contents of the sealed packet was controversial, he did not require the appellants to establish a prima facie case of fraud or any other preconditions in order to obtain access to the sealed packets. He opened the nine sealed packets, removed the affidavits and edited them himself and gave a copy of the nine edited affidavits to the Crown for review. O'Connell Dist. Ct. J. then proceeded to review each affidavit with Crown counsel, identifying each of the deletions which he had made and seeking the Crown's submissions, the appellants' counsel being present throughout this exercise.
The appellants' arguments are further wrong on the facts of this case, since Crown counsel did make submissions before O'Connell Dist. Ct. J. That such submissions be made before or after the editing cannot be material, as long as the Crown has the opportunity to effectively indicate its position with respect to the editing. That was done in the present appeals.
Steps one and two of the procedure set out by Sopinka J. in Garofoli, supra, are the following (at p. 1461):
1. Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.
2. The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. [Emphasis added.]
However, as Sopinka J. himself said, at p. 1460, this procedure "is not intended to be exclusive or exhaustive". Therefore, since the review judge followed Parmar (No. 1), supra, which was regarded as setting out the proper procedure at the time, the Crown was consulted and had an input during the editing process, and the judge remained open to suggestions by both counsel. In my view, there is absolutely no cause for reproach as to the manner in which these affidavits were edited by the reviewing judge. This argument cannot succeed.
2.Failure to Provide Judicial Summaries of Deletions
The appellants argue that the failure of the trial judge to provide them with judicial summaries of the deletions denied them their right to make full answer and defence. They rely on step number two of the procedure suggested by Sopinka J. in Garofoli, supra, at p. 1461, which I reproduce here at length:
2. The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided. [Emphasis added.]
As I have pointed out earlier, Sopinka J.'s suggested procedure was not "intended to be exclusive or exhaustive" (p. 1460). The need to provide judicial summaries greatly depends on the facts of each case.
No requirement to provide judicial summaries of deletions was part of the editing method adopted by Watt J. in Parmar (No. 1), supra, prior to Garofoli, supra. Moreover, there were no judicial summaries of deleted material provided to the defence in the editing procedure followed by the Ontario Court of Appeal in Garofoli, supra, at pp. 111-12. Nevertheless, in that case, Sopinka J. held that the approach of the Ontario Court of Appeal was in "substantial compliance" with the first five of the six steps of the procedure which he suggested and that no "issue can be taken with respect to the procedure followed" (Garofoli, supra, at p. 1462).
Under these circumstances, it is difficult to hold that the trial judge erred, particularly when appellants' counsel did not request judicial summaries as such at the time. In addition, no specific reason was given or facts demonstrated by the appellants with respect to the need for judicial summaries in the circumstances of this case.
I, therefore, agree with the majority of the Court of Appeal that the appellants' case was not impaired by the trial judge's failure to provide summaries.
3.The Legality of the Deletions
The appellants' main argument rests on the contention that the trial judge over-edited the affidavits. In their view, there was no basis in law for the deletion of irrelevant information ("commentary", "summary" or "opinion") and information from informers should not have been deleted, as opposed to information identifying informers. They further submit that information identifying informers whose identity may no longer have been confidential by the time the trial was held should not have been deleted. According to them, the errors of the trial judge appear clearly upon a comparison between the two affidavits edited by Bowlby J. in the Supreme Court of Ontario trial of 1986 (R. v. Marsh, supra) and the same two affidavits edited by Watt J. of the Supreme Court of Ontario in the second Wilson motion presented in September 1987 with the editing made by O'Connell Dist. Ct. J. Finally, they argue that the failure of the trial judge to edit in accordance with the principles in Parmar (No. 1), supra, denied them of their right to make full answer and defence. The dissenting judge in the Court of Appeal as well as my colleagues are of the view that the appellants' arguments on this point must succeed. For the following reasons, I disagree.
In Garofoli, supra, at p. 1460, a majority of this Court referred with approval to the factors outlined by Watt J. in Parmar (No. 1), supra, at pp. 281-82, in deciding what to edit:
(a)whether the identities of confidential police informants, and consequently their lives and safety, may be compromised, bearing in mind that such disclosure may occur as much by reference to the nature of the information supplied by the confidential source as by the publication of his or her name;
(b)whether the nature and extent of ongoing law enforcement investigations would thereby be compromised;
(c)whether disclosure would reveal particular intelligence-gathering techniques thereby endangering those engaged therein and prejudicing future investigation of similar offences and the public interest in law enforcement and crime detection, and
(d)whether disclosure would prejudice the interests of innocent persons. [Emphasis added.]
This reference to Parmar (No. 1), supra, was not intended to limit the scope of the judicial discretion of the reviewing judge. On the contrary, as Sopinka J. previously said at p. 1460:
Since there will be more than one method of striking a proper balance between the interests of law enforcement and of the right to make full answer and defence, I would not wish to place trial judges in a "strait-jacket" by laying down iron-clad rules with respect to editing. [Emphasis added.]
McLachlin J. for the minority, with whom I concurred, expressed a similar view in the following words (at p. 1482 of Garofoli, supra):
Like other rights under the Charter , the right to make full answer and defence may come into conflict with other rights and values. It may be necessary to balance these interests against the right to make full answer and defence.
This is illustrated by the problem of editing. I agree with Sopinka J. that a judge may withhold certain portions of the packet on grounds, for example, that those portions might disclose the identity of an undercover operative. Denial of this information might lead an accused to complain about being deprived of the right to make full answer and defence. Nevertheless, the editing must be permitted because the public's interest in the administration of justice outweighs the accused's interest in obtaining the identity of the informant. I further agree with Sopinka J. that edited material can be considered in deciding whether the authorization can be supported. [Emphasis added.]
In my view, in editing the affidavits, the reviewing judge must have sufficient discretion. Such discretion is not only subjective, but depends on the facts and the context of the case before him or her. While, in some circumstances, deleting the names and addresses of informers will be sufficient for their protection, this is not necessarily so in each case. Other details may be sufficient to provide the necessary information to people in the know in order to deal with the informer the way that they generally are dealt with in those circles. McLachlin J. made the following observations about the opening of the sealed packet which are apposite in the context of the editing process (at p. 1479):
... the matter is in the discretion of the judge hearing the application. He or she must decide whether the packet should be opened, by asking whether the interest of the accused in opening the packet is outweighed by the public interest in the administration of justice. [Emphasis added.]
This is even now more so, given the enactment of the new legislation dealing with the opening of the sealed packet as I indicated earlier. In my view, a similar exercise of discretion prevails in the editing of the affidavits: the trial judge must decide in his or her discretion what portions should be edited and to what extent, having in mind the protection of the interests of the state in its investigation techniques and in non-disclosure of informers' identity which may be revealed in many details that may appear insignificant at first sight, but which the trial judge is in the best position to appreciate.
In the present appeals, the balancing of the interests of the appellants and the public interest in the administration of justice in the view of the editing judge required a more extensive editing than perhaps other judges may have found. However, there was in no way such an abuse of discretion which could amount to a denial of justice or of a fair trial. In that respect, the reproach concerning the editing which relates to the deletion of information from informers is unfounded.
As I have indicated earlier, it is well recognized that the protection of police informers is crucial to the proper administration of justice. Police cannot operate, particularly in drug conspiracy and drug trafficking, without such informers. This principle has been recognized by our Court in Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), [1981] 2 S.C.R. 494, where Martland J., speaking for the majority, said (at pp. 527, 535 and 536):
The law has recognized for many years the existence of a "police-informer" privilege. It was described by Lord Esher in the leading case of Marks v. Beyfus (1890), 25 Q.B.D. 494 [C.A.], at p. 498 as being a rule of public policy that is not a matter of discretion....
...
These statements give clear recognition to the existence of an established rule of law, for the purpose of effective policing, which recognizes that sources of police information must be withheld from forensic investigation.
...
In my opinion, the immunity from disclosure which is accorded in relation to information furnished to the police in the course of the performance of their duties is general in its scope. This has become recognized as a rule of law with only one recognized exception, namely [where upon the trial of defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence]. [Emphasis added.]
In Bisaillon v. Keable, supra, at pp. 88-98 (Beetz J.), to which I referred earlier, this Court reiterated the state's interest in protecting police informers. Such is also the case in the United States and generally in the common law world.
Cory J.A. discussed the rule in the case of drug-related crimes, in R. v. Hunter (1987), 34 C.C.C. (3d) 14 (Ont. C.A.), at p. 18:
The rule against the non-disclosure of information which might identify an informer is one of long standing. It developed from an acceptance of the role of informers in the solution of crimes and the apprehension of criminals. It was recognized that citizens have a duty to divulge to the police any information that they may have pertaining to the commission of a crime. It was also obvious to the courts from very early times that the identity of an informer would have to be concealed both for his or her own protection, and to encourage others to divulge to the authorities any information pertaining to crimes. It was in order to achieve these goals that the rule was developed. [Emphasis added.]
I note that Cory J.A. not only referred to the name of the informer, but rather to its "identity", a broader concept. Speaking for the majority of this Court in R. v. Scott, [1990] 3 S.C.R. 979, Cory J. again stressed the importance of hiding the identity of informers (at p. 994):
The value of informers to police investigations has long been recognized. As long as crimes have been committed, certainly as long as they have been prosecuted, informers have played an important role in their investigation. It may well be true that some informers act for compensation or for self-serving purposes. Whatever their motives, the position of informers is always precarious and their role is fraught with danger.
The role of informers in drug-related cases is particularly important and dangerous. Informers often provide the only means for the police to gain some knowledge of the workings of drug trafficking operations and networks. It has been estimated that in the United Sates some ninety-five per cent of all federal narcotics cases involve the work of informers....
Trafficking in narcotics is a lucrative enterprise. The retribution wreaked on informers and undercover officers who attempt to gather evidence is often obscenely cruel. Little assistance can be expected from informers if their identity is not protected. There can be no relationship of trust established by the police with informers without that protection. If the investigation of drug-related crime is to continue then, to the extent it is possible, the identity of informers must be protected.
The need to protect the identity of an informer has long been recognized by the courts of Canada and other jurisdictions. [Emphasis added.]
The following passage from Anderson J.'s reasons in Miller and Thomas, supra, at p. 292, is still very relevant today:
If the secret material were revealed to the general public, the following results might occur:
(1)The lives and safety of informers would be in jeopardy.
(2)The identity of "undercover" agents would be revealed. This would be so even if the names of the informants or the "undercover" agents were not made known, because the revealing of the information would, in most cases, in itself make known the identity of the informer or the "undercover" agent.
(3)The information relating to incomplete investigations would be revealed.
(4)The modus operandi of the police would be revealed.
(5)Information relating to innocent persons would be revealed. [Emphasis added.]
In that perspective, the scope of the editing does not only include the names and the addresses of the informers, but also, and perhaps more important, the whereabouts and other details which could help to locate and identify them. The context and facts of a particular case are also crucial to the range of the editing. In cases of drug-related infractions, organized networks of narcotic distribution and motorcycle clubs such as in the present appeals, it would not be surprising to find that the main if not the only reason why accused wish to have access to the unedited affidavits and to cross-examine the affiants and sub-affiants is precisely to identify informers so they can be dealt with. Their life may be in jeopardy. Therefore, the slightest detail that might help identify an informer must be edited by the trial judge. That is where the judge's discretion enters into play as an essential tool for the protection of informers.
That is precisely what O'Connell Dist. Ct. J. did, as he stated in his reasons. He had the discretion to edit, and such discretion demanded, in his view, that he edit to the extent he did, in order to delete information regarding informers on the basis that such information was likely to lead to their identification. Perhaps in so doing the editing judge was over-cautious in his attempt to protect the identity of the informers and the nature of the undercover operation. Nevertheless, this was within his discretion and could not amount to an error of law in the absence of a denial of justice or of full and fair defence.
The appellants' other submission is that the information identifying informers, whose identity may no longer have been confidential by time of trial, should also not have been deleted by O'Connell Dist. Ct. J. Whatever the merits of that position, I note that counsel for the appellants had the opportunity to present their submissions over the course of two days with respect to the editing O'Connell Dist. Ct. J. had done (May 19 and 20, 1987). The arguments of counsel for the appellants were, at that time, only directed towards the deletion of information from informers, as opposed to information identifying informers, and the specific issue of possible loss of confidentiality of some informers was never raised. This is significant in my view and the appellants cannot today, without more, challenge such editing. At the time of the editing, the trial had not been held and there was no way for the trial judge to know whether, at the time of trial, such confidentiality would become unnecessary. Besides, there is nothing in the record to indicate that the reviewing judge was informed that the material in the affidavits edited out by Bowlby J. was not, or had ceased to be, confidential and, therefore, could be released. Contrary to what my colleague Sopinka J. holds, I am of the opinion that the reviewing judge could not have presumed, at the time of his review, that the version of the affidavits as edited and released by Bowlby J. was not confidential anymore. The appellants' argument cannot succeed.
As to appellants' further argument, the deletion of irrelevant information ("commentary", "summary" or "opinion") made by O'Connell Dist. Ct. J. may be more questionable, as my colleague Sopinka J. notes. Nevertheless, these deletions were minor and are irrelevant as a basis for the issuing of the authorizations. As Finlayson J.A. pointed out, that "is but one opinion, however, and is not enough to override that of an experienced trial judge" (p. 450). Moreover, this falls within the trial judge's discretion and surely it is not enough to constitute unfairness and warrant a new trial, especially considering all the circumstances of this case and, in particular, in respect with the editing process, the lengthy cross-examination of the affiants and of two additional witnesses (12 days). The appellants had every opportunity to explore the veracity of the affidavits and the probable cause for requesting (and granting) the authorizations in the first place. That is the important issue.
Sopinka J. argues that had the appellants had access to the material contained in the excised portions of the affidavits, they could have used this information to impugn the contents of the affidavits which had been disclosed. In my view, this argument is largely self-defeating because the same could be said about the authorized deletions, i.e. regarding the names and the addresses of the informers. On that view, all the deletions could be used by an accused to demonstrate the inaccuracy of allegations made in the affidavits, fraud, or non-disclosure. Such a position simply ignores the continuing need for confidentiality which I have discussed at length.
One must not ignore that, in his reasons for judgment regarding deletions, O'Connell Dist. Ct. J. specifically indicated that the only deletions he made were related to the identity of informers and some irrelevant commentary. If that is so, it is entirely proper and in accordance with Garofoli, supra. I note that the reasons of O'Connell Dist. Ct. J. were not challenged.
The comparison between the two affidavits edited by Bowlby J. in the Supreme Court of Ontario trial of 1986 (R. v. Marsh, supra) and the same two affidavits edited by Watt J. of the Supreme Court of Ontario in the second Wilson motion presented in September 1987 with the editing made by O'Connell Dist. Ct. J. is not relevant. In the exercise of their discretion, judges might hold different views and come to different conclusions. As long as the exercise of discretion is made judiciously and judicially, there is no ground for reproach. This is the case here. There is no magic formula and the circumstances of a particular case will mandate certain courses of action. Judgment and common sense will have to be exercised. One may have a different view than another, but that is the name of the game of discretion, providing fundamental rules of justice are respected. Dickson J.'s comments in Rathwell v. Rathwell, [1978] 2 S.C.R. 436, although in the context of matrimonial property disputes, are relevant to the present matter (at p. 448):
The need for certainty in matrimonial property disputes is unquestionable, but it is a certainty of legal principle hedging in a judicial discretion capable of redressing injustice and relieving oppression. [Emphasis added.]
Finally, on the question of prejudice, I am in complete agreement with Finlayson J.A. when he says (at p. 453):
On balance, I do not think the appellants Farinacci, Lépine and Jeffreys can show significant prejudice as a result of the editing process. In the absence of such prejudice, the failure of the trial judge to fully anticipate guidelines that would be set down by subsequent courts for editing affidavits is not sufficient, on appeal, to set aside the authorizations in question.
Even assuming that the deletions made by the trial judge were excessive to the point of amounting to an error, no prejudice resulting from those deletions was demonstrated. Moreover, the judge allowed cross-examination of the three affiants and two additional witnesses for 12 full days. The appellants were unable to demonstrate that the authorizations to intercept private communications were facially deficient, that the edited affidavits failed to set out reasonable and probable grounds or that the affiants committed fraud, misleading disclosure or non-disclosure in their request for the authorizations to wiretap appellants' telephone conversations. Besides, as I said earlier, counsel for the appellants recognized that had the affidavits submitted to the judge in order to obtain the wiretap authorizations been the edited affidavits, such affidavits would have been sufficient for the issuing of the authorizations. In these circumstances, I cannot find prejudice. The purpose of a review is precisely to ascertain that the authorizations were properly issued, not to permit the accused to go on fishing expeditions to attempt to identify informers, which would be an abuse of the process in itself. The exercise that the appellants went through here, to no avail in my view, had the effect of considerably prolonging the proceedings, at a very substantial cost to the justice system. This, in my opinion, is only commendable when there is ground to suspect that rights have been violated and a miscarriage of justice has been committed; the grounds of appeal here at issue did not reveal any. They were worded in pure legal technicalities which have no bearing on the innocence or the guilt of an accused and, for that matter, on the rendering of justice.
- IV -
Conclusion
Police wiretapping of telephone conversations and the use of informers are essential tools in discovering criminal activity and bringing to justice those people who are shattering the foundation of society. This is particularly so in cases of drug trafficking which is today a "pernicious scourge in our society", as my colleague Sopinka J., speaking for the Court, has eloquently stated in R. v. Grant, [1993] 3 S.C.R. 223, at p. 241.
The more sophisticated criminals become in their pursuit of greed and revenge, the more sophisticated police strategies and devices must become to detect and deter such criminal activity.
In a free and democratic society, contrary to totalitarian regimes, the police cannot barge into people's homes, seize documents and goods, wiretap conversations and arrest people without probable and reasonable grounds to believe that a crime has been or is being committed. As a general rule, the police must obtain prior authorizations from a judge and, to that end, must establish reasonable and probable cause. Once that has been demonstrated, the authorizations are legal and that is the end of the matter. The guilt or innocence of an accused are not at stake at this stage, it is the violation of an accused's rights under the Charter which is examined. Once established that there is no violation, there is no more purpose to the exercise.
The balance between the protection of society and the respect of individual rights, be they those of criminals, has been struck in s. 178.14 of the Criminal Code (later s. 187). In my view, those rules were respected here. The wiretap of the appellants' conversations was properly authorized by a judge, was relevant and admissible at their trial and as such admitted. The appellants had nothing but a fair trial, there was no miscarriage of justice and no violation of the right to make a full and fair defence. There is nothing in the treatment of the sealed packets by the reviewing judge which constituted a reviewable error.
The procedure followed and the editing by the trial judge of the affidavits in support of the authorizations to intercept private communications did not deprive the appellants of their right to make full answer and defence as guaranteed by ss. 7 and 11( d ) of the Charter . The editing process followed by the trial judge was a proper exercise of his discretion and, as such, did not constitute an error of law. Therefore, the authorizations were valid and there is no need to consider the application s. 686(1)(b)(iii) of the Criminal Code to the present appeals. Like Finlayson J.A. said, "I have no sense that the appellants received anything less than a fair trial" (p. 456).
As a result, I would dismiss the appeals and affirm the convictions of the appellants.
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