R. v. Chow, 2005 SCC 24, [2005] 1 SCR 384

                                                 SUPREME COURT OF CANADA

Between:

Simon Kwok Cheng Chow

Appellant

v.

Her Majesty the Queen

Respondent

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Fish, Abella and Charron JJ.

______________________________

R. v. Chow, [2005] 1 S.C.R. 384, 2005 SCC 24

Simon Kwok Cheng Chow                                                                                Appellant

v.

Her Majesty The Queen                                                                               Respondent

Indexed as:  R. v. Chow

Neutral citation:  2005 SCC 24.

File No.:  29919.

2004:  December 16; 2005:  April 27.

Present:  McLachlin C.J. and Bastarache, Binnie, LeBel, Fish, Abella and Charron JJ.

on appeal from the court of appeal for british columbia

Constitutional law — Charter of Rights  — Search and seizure — Interception of communications — Accused and three co‑accused charged with murder — Crown’s case against accused based largely on intercepted telephone conversations — Accused’s name not mentioned in affidavit accompanying first two applications for authorization — Accused alleging that subsequent authorizations rested on information unlawfully obtained from first two authorizations — Whether accused’s right to be secure against unreasonable search or seizure violated — Canadian Charter of Rights and Freedoms, s. 8 .

Criminal law — Interception of communications — Successive authorizations — Accused and three co‑accused charged with murder — Crown’s case against accused based largely on intercepted telephone conversations — Accused’s name not mentioned in affidavit accompanying first two applications for authorization — Accused alleging that subsequent authorizations rested on information unlawfully obtained from first two authorizations — Whether accused “known” person within meaning of Criminal Code  when first two authorizations sought and obtained — _Criminal Code, R.S.C. 1985, c. C‑46, s. 185(1) (e).

Criminal law — Procedure — Separate trials — Accused and three co‑accused charged with murder — Whether accused  entitled to severance in order to compel one of co‑accused to testify — Whether denial of severance deprived him of right to make full answer and defence.

The accused was convicted by jury of murder in the first degree for a killing planned and carried out with co‑conspirators.  The victim was shot by a co‑accused.  The Crown’s case against the accused was that he was privy to the murder and knowingly remitted the payment for the contract killing to the getaway driver.  The accused’s defence was that the payment had nothing to do with the murder but was related to a marijuana project.  The Crown had mounted a compelling circumstantial case, based largely on intercepted telephone conversations.  The calls had been intercepted pursuant to eleven successive authorizations, of which the sixth and seventh yielded evidence crucial to the case against the accused.  He applied for exclusion of the wiretap evidence pursuant to ss. 8  and 24  of the Canadian Charter of Rights and Freedoms , arguing that he was a “known” person whose name was not disclosed when the first and second wiretap authorizations were sought and obtained and that the third and subsequent authorizations rested on the foundation of information unlawfully obtained from the second.  He also applied for severance in order to compel one of his co‑accused to testify.  Both applications were dismissed. The Court of Appeal dismissed the accused’s appeal against his conviction as well as his application to re‑open the hearing on the issue of severance.

Held:  The appeal should be dismissed.

The accused’s constitutionally protected right to privacy was not violated by the interception of his private communications pursuant to the sixth and seventh authorizations.  First, he was not a “known” person within the meaning of s. 185(1)  of the Criminal Code  when the first and second wiretap authorizations were sought and obtained, because the officers concerned did not yet then have reasonable grounds to believe that he was connected to the offence they were investigating.  Second, even if it were assumed that the accused was then a “known” person, evidence unaffected by the alleged breach of his Charter  rights amply supported the subsequent authorizations. [8] [39] [41]

The accused was not entitled in this case to severance in order to compel a co‑accused to testify.  The only evidence that was not before the trial judge when he denied the accused’s severance application was a reference by the co‑accused who shot the victim to the getaway driver’s statement that he was to attend a meeting about “some old weed business” on the day of the payment.  However, this co‑accused’s proposed testimony that he had not received any payment for the shooting was considered by the trial judge and was in fact put to the jury.  It is well established that separate trials for alleged co‑conspirators are the exception, and not the rule.  The relevance and admissibility of a co‑accused’s evidence do not alone entitle a jointly charged accused to a separate trial. In principle, severance will be granted only where a joint trial would work an injustice to the accused.  Here, the accused’s inability to compel his co‑accused to testify did not result in a miscarriage of justice.  The co‑accused’s proposed evidence could hardly  have changed the jury’s verdict.  Though relevant, it was of slight probative value in the context of the case as a whole. [10] [45] [47] [51]

Cases Cited

Applied:  R. v. Crawford, [1995] 1 S.C.R. 858; R. v. Torbiak and Gillis (1978), 40 C.C.C. (2d) 193; referred to:  R. v. Chesson, [1988] 2 S.C.R. 148; R. v. Commisso, [1983] 2 S.C.R. 121.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 8 , 24 .

Criminal Code, R.S.C. 1985, c. C‑46, ss. 185(1) (e), 675(1) (a)(ii).

APPEAL from a judgment of the British Columbia Court of Appeal (Donald, Saunders and Low JJ.A.) (2003), 179 B.C.A.C. 92, 295 W.A.C. 92, 180 C.C.C. (3d) 184, [2003] B.C.J. No. 452 (QL), 2003 BCCA 131 (sub nom. R. v. Mapara; R. v. Chow), upholding the accused’s conviction for first degree murder.  Appeal dismissed.

Peter Leask, Q.C., and Jeremy Gellis, for the appellant.

Henry J. R. Reiner, Q.C., for the respondent.

The judgment of the Court was delivered by

Fish J. —

I

Overview

1                                   Simon Kwok Cheng Chow was convicted by a jury of murder in the first degree.  He and three co-accused — Sameer Mapara, George Wasfi, and Shane Kelly Shoemaker — were alleged by the Crown to have planned and carried out the murder of Vikash Chand.

2                                   The Crown had mounted against them what the Court of Appeal characterized as a “compelling circumstantial case”, based largely on intercepted telephone conversations.  The Crown relied as well on the testimony of the getaway driver, Haddi Binahmad, who had been granted immunity in exchange for his evidence.

3                                   At trial, Chow applied for severance in order to compel Shoemaker to testify.  He also applied for exclusion of the wiretap evidence, pursuant to ss. 8  and 24  of the Canadian Charter of Rights and Freedoms .  Both applications were dismissed. 

4                                   Chow was convicted and his conviction was affirmed by the British Columbia Court of Appeal ((2003), 179 B.C.A.C. 92, 2003 BCCA 131).

5                                   In this Court, Chow attacks his conviction on two main grounds:  first, that the intercepted communications should have been declared inadmissible against him; second, that the denial of severance deprived him of his right to make full answer and defence.

6                                   Neither ground succeeds.

7                                   On the first ground, Chow argues that he was known to the police but not named, as required by law, when the first wiretap authorization was sought and obtained.  His private communications intercepted under its authority, he says, were therefore obtained in violation of his right, under s. 8  of the Charter , “to be secure against unreasonable search or seizure”.  Chow submits that the subsequent authorizations rested on the foundation of those intercepted communications. The wiretap evidence relevant to the murder of Chand was obtained pursuant to these subsequent authorizations and should therefore have been excluded under s. 24(2)  of the Charter .

8                                   This ground fails, for two reasons.  First, because Chow was not a “known” person, in the relevant sense, when the first and second wiretap authorizations were sought and obtained.  The officers concerned did not yet then have reasonable grounds to believe that Chow was connected to the offence they were investigating.  Second, evidence unaffected by the alleged breach of Chow’s Charter  rights amply supported the subsequent authorizations, under which the communications relevant to the present matter were intercepted.

9                                   On the second ground, Chow argues that the trial judge’s denial of severance resulted in a miscarriage of justice because it prevented him from leading evidence that might have raised a reasonable doubt as to his guilt.  More specifically, he contends that Shoemaker’s testimony, partly unavailable to the trial judge when severance was denied, would have undermined the Crown’s theory of the case and supported his own.

10                               Shoemaker’s proposed evidence was doubtless relevant and, without so deciding, I am prepared to assume — as did the Court of Appeal — that it was admissible.  In the absence of severance, Chow was deprived of its benefit since Shoemaker, co-accused with Chow, was not a compellable witness.  But the relevance and admissibility of a co-accused’s evidence do not alone entitle a jointly charged accused to a separate trial.  Separate trials for those who are alleged to have conspired or to have committed a crime in concert remain the exception and not the rule.  In principle, severance will only be granted where a joint trial will work an injustice to the accused: R. v. Crawford, [1995] 1 S.C.R. 858.

11                               Here, Shoemaker’s proposed evidence was found both by the trial judge  and by the Court of Appeal to have “marginal” probative weight.  Both courts concluded, after careful consideration, that it could hardly have changed the jury’s verdict.  They applied the governing principles judicially and, in concluding as they did, committed no error warranting the intervention of this Court.

12                               Both grounds thus fail, and the appeal should be dismissed.

II

Facts and Proceedings

13                               Chow, Mapara, Wasfi and Shoemaker were jointly charged with the first degree murder of Chand.  Chand, while changing a licence plate on Chow’s car in Mapara’s car lot, was shot seven times by Shoemaker.

14                               The Crown’s theory of the case was that Chow was privy to Chand’s murder and knowingly remitted to the getaway driver, Binahmad, payment for the contract killing.

15                               Binahmad, a Crown witness who had been granted immunity from prosecution, testified that Mapara had hired Wasfi to murder Chand and that Wasfi, in turn, recruited Shoemaker to do the killing.  He stated that Chow gave him $7,000 as a “down payment” on the contract, that he remitted the $7,000 to Shoemaker, and that Chow, at Wasfi’s request, gave him an additional $2,000 after the killing to enable him to leave town.

16                               Chow’s defence was that his payment to Binahmad had nothing to do with the murder and was not intended for Shoemaker.  It related, he said, to a “marijuana project” that he had undertaken with Wasfi.

17                               Shoemaker did not testify.

18                               The Crown entered into evidence telephone conversations involving Chow, Wasfi and Mapara.  The calls had been intercepted pursuant to eleven successive authorizations, of which the sixth and seventh yielded evidence crucial to the prosecution’s case against Chow.  Chow sought unsuccessfully to exclude this evidence under ss. 8  and 24(2)  of the Charter .

19                               Oppal J. rejected Chow’s application.  He noted that the use of electronic means to intercept private communications constitutes a search and seizure that will be deemed unreasonable under s. 8  of the Charter  unless judicially authorized in accordance with the relevant statutory requirements.  Section 185(1) (e) of the Criminal Code, R.S.C. 1985, c. C-46 , stipulates that the affidavit accompanying an application must disclose the existence of known persons (“knowns”) whose conversations are targeted.  Failure to do so will render unlawful any ensuing interception of a “known’s” communications.

20                               Oppal J. thought there was “much evidence to indicate that [the police] ought to have known about the existence or identity of Chow” (Ruling on voir dire, [2001] B.C.J. No. 2959 (QL), 2001 BCSC 1815, at para. 32).  He found it unnecessary, however, to determine whether Chow was a “known” when the first and second authorizations were sought and granted, since the Crown did not rely on any intercepts obtained as a result of any authorizations in which Chow was not named as a target.  Moreover, Oppal J. concluded that the validity of the first and second authorizations had no inherent bearing on the admissibility of the subsequent intercepts: since each authorization represented a separate order, its legality was to be independently determined.

21                               At the conclusion of the Crown’s case, Chow and Wasfi both applied for severance.  Oppal J. allowed Wasfi’s application, but not Chow’s. Applying R. v. Torbiak and Gillis (1978), 40 C.C.C. (2d) 193 (Ont. C.A.), he held that the “issue to be ultimately determined by the court is whether the refusal to order a separate trial [would result] in a miscarriage of justice”.  Oppal J. found that Chow’s application failed on that test since Shoemaker’s anticipated testimony was of “marginal” import.

22                               Chow and Mapara both testified.  Shoemaker did not, but in a statement to the police admitted at the trial, he denied having received any payment at all for the killing.  Chow testified that the intercepted telephone calls referred to a marijuana deal and that, in two calls, he realized that Wasfi was referring to a contract killing but said he was not interested.  He said that he thought the money he paid to Binahmad was for the “marijuana project”.

23                               Chow, Shoemaker and Mapara were all convicted by the jury of first degree murder.

24                               Chow and Mapara appealed.  Chow’s main grounds were that Oppal J. erred in refusing to grant him a separate trial and in admitting the wiretap evidence.  He submitted as well that the verdict was unreasonable and sought to adduce “fresh evidence” in the form of an affidavit (a “will say” statement) by Shoemaker.  The essence of the affidavit was that Shoemaker, if compelled to testify, would state that he had not received the $7,000 from Binahmad.

25                               Shoemaker was cross-examined by the Crown on his affidavit. On re-examination by Chow’s counsel, he stated that Binahmad had told him, on the day Binahmad received the $7,000 from Chow, that he (Binahmad) had to attend a meeting about “some old weed business”. 

26                               Speaking for the Court of Appeal, Donald J.A. agreed with the trial judge that « Shoemaker’s evidence was too marginal to justify a severance » (para. 22).  He found that the wiretaps had been properly admitted and that the verdict was reasonable and supported by the evidence.

27                               After the appeal was heard, but before judgment was entered, Chow sought to re-open the hearing so as to take into account, on the issue of severance, Shoemaker’s reference to the “old weed business”.  Chow’s counsel stated that this aspect of Shoemaker’s examination was not raised at the hearing of the appeal because of his instructions and because of the pressures of time.  Neither explanation is compelling.

28                               Chow’s application for a re-opening of the appeal was dismissed ((2003), 182 B.C.A.C. 88, 2003 BCCA 248).

III

Discussion

29                               The appellant advanced four arguments in his factum: (1) that the Court of Appeal erred in holding that he was not entitled to severance; (2) that the trial judge erred in admitting the intercepted communications; (3) that the Court of Appeal erred in attaching no significance to the trial judge’s issuance of a certificate pursuant to s. 675(1) (a)(ii) of the Criminal Code ; and (4) that the jury’s verdict was unreasonable.  Counsel chose, wisely, not to press grounds (3) and (4) in oral argument:  the first is devoid of any basis in law; the second was thoroughly examined and properly disposed of by the Court of Appeal.

30                               I turn, then, to the two remaining issues: the admissibility of the wiretaps and the denial of severance.

IV

The Wiretap Issue

31                               The prosecution of Chow, Mapara, Wasfi and Shoemaker was based in large part on private communications intercepted pursuant to eleven consecutive authorizations obtained by the Vancouver Island District Drug Section, a unit of the RCMP, between October 1997 and May 1999.  The targets of the authorizations changed over time, and Chow was first named in the application for the third authorization.  The calls relating to Chand’s murder were intercepted pursuant to the sixth and seventh authorizations.

32                               Chow submits that his existence and relevance to the investigation were known to the RCMP at the outset of Project E-Page.  He should therefore have been named in the affidavits supporting the first and second applications.  Since he was not,  his communications were intercepted unlawfully during the life of the second authorization: R. v. Chesson, [1988] 2 S.C.R. 148.  Finally, according to Chow, the third and subsequent authorizations rested on the foundation of information obtained from the second, and they, too, must for that reason be set aside.

33                               Section 185(1) (e) of the Criminal Code  states, in part:

185. (1)   An application for an authorization to be given under section 186 [that is, a wiretap authorization] shall be made ex parte and in writing to a judge . . . .

. . .

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

. . .

(e)   the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence . . . .

34                               Some police officers knew of Chow’s existence and suspected his  involvement in criminal activity when the applications for the first and second authorizations were made.  The RCMP unit conducting Project E-Page, however, was unaware of his connection to the specific investigation for which those authorizations were sought.  It was not known, nor were there reasonable grounds to believe, that Chow was a person whose private communications would, if intercepted, assist in that investigation.

35                               The RCMP unit had earlier obtained the name “Simon Chow” from the  “Coordinated Law Enforcement Unit”.  Chow was said to be involved with “David Jai” in the trafficking of marijuana.  Project E-Page related, initially, to illegal trafficking in cocaine and heroin, and later focussed exclusively on heroin.  “David Jai” was then suspected to be (and later determined to be) David Au, who was a “known” in the first E-Page authorization and a target in the second.

36                               It appears from the record, however, that Jai and Au were not then known to be one and the same.  Nor was it known that Chow was involved in heroin trafficking.  The RCMP had also learned from an informant that a certain “Simon LNU (last name unknown)” was associated with Au, but did not have reasonable grounds to believe that he was the appellant, Simon Chow. It only had what has been described in the Crown’s factum as an “unconfirmed suspicion” that this was the case.

37                               It was only during the period covered by the second authorization, when David Au became a target of Project E-Page, that investigators intercepted calls between Au and a person called “Ah-Sei”, who was later determined to be Chow.  They also intercepted conversations between Au and others referring to “Simon” and “Ah-Sei” in connection with heroin trafficking.

38                               It was in this context that the RCMP unit became aware that “Simon LNU” and “Ah-Sei” were both references to Chow.  In the view of the Court of Appeal, the “critical link” in this determination was the unit’s observation of Au meeting Chow at the airport while Au was under physical surveillance.  Simon Chow was then, appropriately enough, named as a target in the materials supporting the third authorization.

39                               The evidence thus supports the Crown’s contention that Chow was not a “known” within the meaning of the Criminal Code , and Chesson, when the first and second authorizations were sought and obtained.  In any event, I agree with the Court of Appeal that, even if it were assumed that Chow was then a “known”, there was enough evidence independent of any prior Charter  breach to justify the third and subsequent authorizations.

40                               The Court of Appeal reviewed that evidence thoroughly.  Essentially, Au’s phone conversations to which Chow was not a party were also intercepted pursuant to the second authorization.  In two of those phone calls, “Simon” and “Ah-Sei” were said, respectively, to be travelling to Hong Kong, and dealing internationally in heroin.  These phone calls alone would have aroused the RCMP’s interest in discovering who “Simon” and “Ah-Sei” were, and resulted inevitably in the physical surveillance of Au.  As mentioned earlier, it was this surveillance that led to the inclusion of Chow as a target in the investigation and the interception of his calls pursuant to the sixth and seventh authorizations.

41                               In these circumstances, Chow’s constitutionally protected right to privacy was not violated by the interception of his private communications pursuant to the sixth and seventh authorizations.

42                               Finally on this branch of the matter, Chow urged us in his factum to reconsider R. v. Commisso, [1983] 2 S.C.R. 121, where it was held that intercepted communications are admissible to prove an offence that is unrelated to the purpose for which a wiretap authorization was sought and obtained.  Counsel did not press this point in oral argument: no reason has been advanced for revisiting Commisso at this time.

V

The Severance Issue

43                               Oppal J. rejected Chow’s application for a severance and the Court of Appeal, after considering Shoemaker’s affidavit and examination, found that Oppal J. had exercised his discretion judicially.

44                               The appellant now argues that “a miscarriage of justice has come to pass, in that the [a]ppellant has been denied the right to call evidence that might reasonably have had an effect on the jury’s verdict” (appellant’s factum, at para. 42).  He does not take issue with Oppal J.’s denial of severance; rather, he stakes his claim to a new and separate trial on Shoemaker’s examination in the Court of Appeal.  Since this  evidence was not available to the trial judge, it is argued, no deference is owed to Oppal J.:  this Court must consider the issue of severance afresh.

45                               The only evidence that was not before Oppal J. when he denied Chow’s application was Shoemaker’s reference to Binahmad’s statement that he was to attend a meeting about “some old weed business” on the day of the payment.  Shoemaker’s proposed testimony that he had not received any payment for the shooting of Chand was considered by Oppal J. when he declined to grant severance.  And this evidence, albeit in another form, was in fact put to the jury: Shoemaker’s statement to the police included his allegation that he had never “collected” on the contract killing.

46                               The question, then, is whether Chow’s inability to compel Shoemaker to testify resulted in a miscarriage of justice, in the sense that the accused was denied his right to make full answer and defence.

47                               It is well established that separate trials for alleged co-conspirators are the exception, not the rule.  In Crawford, which I mentioned earlier, Sopinka J. referred to the “uniform stream of authority in this country in favour of joint trials” (para. 19).  Speaking for eight members of the Court, he set out compelling policy reasons for joint trials for co-conspirators despite the inevitable “double bind” that results:

There exist . . . strong policy reasons for accused persons charged with offences arising out of the same event or series of events to be tried jointly.  The policy reasons apply with equal or greater force when each accused blames the other or others, a situation which is graphically labelled a “cut-throat defence”.  Separate trials in these situations create a risk of inconsistent verdicts.  The policy against separate trials is summarized by Elliott, supra, at p. 17, as follows:

There is a dilemma here which could only be avoided by separate trials.  But separate trials will not be countenanced because, quite apart from the extra cost and delay involved, it is undeniable that the full truth about an incident is much more likely to emerge if every alleged participant gives his account on one occasion.  If each alleged participant is tried separately, there are obvious and severe difficulties in arranging for this to happen without granting one of them immunity.  In view of this, in all but exceptional cases, joint trials will be resorted to, despite the double bind inevitably involved.

Although the trial judge has a discretion to order separate trials, that discretion must be exercised on the basis of principles of law which include the instruction that severance is not to be ordered unless it is established that a joint trial will work an injustice to the accused. [Emphasis added; paras. 30-31.]

48                               In Torbiak and Gillis, the Ontario Court of Appeal likewise noted, at p. 199, the “well established [rule] that . . . where the essence of the case is that the accused were acting in concert, they should be jointly indicted and tried, and an appellate Court will not interfere with the discretion of the trial Judge unless he has failed to exercise it judicially or his decision has caused a miscarriage of justice”.

49                               Chow argues that a “miscarriage of justice” has occurred in this case not because the trial judge erred in denying severance, but because evidence unavailable at trial now establishes that severance ought to have been granted.  Torbiak and Gillis is helpful in this regard as well.  The Court of Appeal in that case aptly set out the circumstances in which, exceptionally, severance may be granted in order to allow the applicant to compel a co-accused to testify:

If the evidence of a co‑accused sought to be elicited on behalf of another co‑accused is such that, when considered in the light of the other evidence, it might reasonably affect the verdict of the jury by creating a reasonable doubt as to the guilt of the latter, then precluding him from having the benefit of that evidence may require a separate trial, notwithstanding the evidence sought to be adduced from the co‑accused is merely corroborative of the evidence of the accused who wishes to elicit it. . . . [p. 199]

50                               The Crown’s case against Chow, it will be remembered, was that he had knowingly remitted $7,000 to Binahmad as payment for the killing of Chand by Shoemaker.  In this regard, the Crown relied on Binahmad’s evidence and on a body of intercepted conversations in which the participants spoke of their admittedly criminal activities in “code”.  Chow testified that critical conversations concerned a “marijuana project”, and not the murder of Chand.

51                               The Court of Appeal was not persuaded that Shoemaker’s evidence  might reasonably have affected the jury’s verdict.  Nor am I.  Shoemaker’s proposed evidence, though relevant, is of slight probative value in the context of the case as a whole.  The trial judge instructed the jury impeccably on the respective positions of the Crown and the defence, and carefully drew to the jury’s attention the evidence relevant to both.  Shoemaker’s hearsay statement about “some old weed business” would merely have added a small drop in the bucket of the defence without piercing a hole in that of the Crown. 

52                               I note in this context that Chow’s able and experienced counsel, though this assertion attributed by Shoemaker to Binahmad was then fresh in the mind, did not see fit to even mention it when he argued the case on its merits in the Court of Appeal.  I would attribute no more importance to Shoemaker’s proffered evidence now than counsel himself did then.

VI

Conclusion

53                               For the reasons given, the appeal should be dismissed.

Appeal dismissed.

Solicitors for the appellant:  Leask Bahen, Vancouver.

Solicitor for the respondent:  Ministry of the Attorney General of British Columbia, Vancouver.