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POWERS OF SEARCH AND SEIZURE - Search warrants - Validity 

Monday, March 02, 2020 @ 9:07 AM  

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Applications by the accused for exclusion of recordings of private communications intercepted by the police due to breaches of their s. 8 Canadian Charter of Rights and Freedoms (Charter) right. The accused were charged with conspiracy to import cocaine and importing cocaine. The police investigation began as an investigation into a suspected breach of trust offence committed by a CBSA officer, R. The accused Andrews was also a CBSA officer. R was seen in the secure area of a restricted air cargo warehouse wearing his CBSA uniform, even though he was off duty. He was seen removing several boxes from the warehouse and then driving away in a blue pickup truck. The accused Andrews and L were in regular phone contact with R. The three accused were intercepted allegedly communicating about a conspiracy to import cocaine through Pearson International Airport. Investigators interdicted two shipments of bricks of cocaine. After each interdiction, the accused were intercepted allegedly discussing their failure to obtain a missing shipment. At no point during the investigation did police deploy the stimulation tactics outlined in the officer’s affidavit in support of the first wiretap authorization. The police interceptions were conducted pursuant to five successive judicial wiretap authorizations. The Crown conceded that if the first warrant was invalid, all subsequent authorizations fell because the subsequent authorizations were obtained based on information gathered pursuant to the first authorization.

HELD: Applications allowed. The affidavit presented to the authorizing judge in support of the first authorization was materially misleading. The court was not, however, persuaded that the officer or other members of her investigative team engaged in a deliberate and conscious effort to deceive the authorizing judge. The evidence supported the accused’s contention that the police always intended to implement their “wait and see” plan as set out in the internal Investigational and Planning Report, although the officer represented a different plan to the authorizing justice. The two steps in the investigative plan were effectively inverted in the affidavit, thereby furnishing an evidentiary foundation for reasonable and probable grounds when none existed. The officer’s affidavit wrongly gave the impression that the first of three successive stimulation tactics would immediately be deployed as soon as the wires and probes were installed, when in fact the plan was to postpone the implementation of any stimulation tactics and “wait and see” what communications were intercepted. Police could not have obtained authorization for the “wait and see” plan because it lacked the requisite reasonable and probable grounds. The authorization could not have issued absent the misleading information in the affidavit. An accurate affidavit would frankly and explicitly disclose that the investigators had no grounds to believe that the interception of R’s private communications in September 2016 would afford evidence of his alleged offences in January 2016 absent the deployment of any stimulation tactics. An authorizing judge could not have found, based on such an amplified record, that the affidavit demonstrated the requisite reasonable and probable grounds. The officer ought to have known that the affidavit she swore was misleading and to have realized that it misrepresented the existence of reasonable and probable grounds when none in fact existed. The breach of the accused’s Charter rights was not of a merely technical nature. It was neither an excusable slip nor understandable mistake. The seriousness of the Charter-infringing conduct was aggravated by the officer’s unwillingness to own up to her mistakes which militated in favour of excluding the evidence. The police in this case unlawfully intercepted the accused’s private communications in their homes, in their vehicles and on their mobile electronic devices, over an extended period of many months. Admitting the evidence in the circumstances of this case would negatively impact society’s confidence in the justice system. The evidence must therefore be excluded.

R. v. Andrews, [2020] O.J. No. 11, Ontario Superior Court of Justice, C. Petersen J., January 3, 2020. Digest No. TLD-March22020002