Focus On

Evidence - Admissibility - Prejudicial evidence - Confessions and statements by the accused - Voluntariness - Private communications - Inadmissible interceptions - Unlawful or unreasonable interceptions - Voir dire

Thursday, March 09, 2017 @ 7:00 PM  

Appeal by the accused Mehan and Stark from convictions for conspiracy to import cocaine. The US and Canada were cooperating on parallel investigations of cross-border illicit drug importation and trafficking from the US into Canada. A US civilian agent had distributed encrypted Blackberry devices to the targets of the investigation, including Stark. The US Drug Enforcement Agency obtained judicial authorizations to intercept the targets’ communications to and from the devices. The intercepted email communications were forwarded directly to the Agency’s server. The Agency began forwarding Stark’s intercepted emails to an archived email address set up by the Combined Forces Special Enforcement Unit in British Columbia (BC enforcement unit). The electronic transmission of those communications occurred within seconds of their real-time receipt by the US Server. The BC enforcement unit did not obtain an authorization before receiving and reviewing email communications. The US’s interception of the appellants’ communications led the Canadian Border Services Agency to seize two shipments of cocaine into Canada. While being transported to the police detachment, Mehan asked the police officer if he was being arrested for the “US thing”. When the interviewing officer advised Mehan that the arrest warrant was for conspiracy to import coke, he responded he knew what she was talking about. Mehan challenged the admissibility of his statement to the officer because he claimed to have been intoxicated by drugs and alcohol. The appellants argued the trial judge erred in his application of the Vukelich test by declining to hold a voir dire to determine whether Canadian law enforcement agents had breached their s. 8 Charter rights by not obtaining an authorization before receiving and reviewing email communications that were lawfully intercepted by American law enforcement agents. Mehan argued the trial judge erred in admitting evidence of his inculpatory statement while he was impaired by drugs and alcohol, and in concluding that he had been properly advised of the reason for his arrest and that he had provided a clear and unequivocal waiver of his right to counsel.

HELD: Appeals dismissed. The trial judge correctly held that a voir dire was not required to determine the admissibility of the communications that were lawfully intercepted by the US Agency and shared electronically with RCMP officers in near real-time. Those communications were disclosed by the US to Canada in cooperation and in the context of an investigation into organized crime. The Canadian agency relied on the communications to investigate the appellants in Canada. A voir dire would not have assisted the Court in determining the real issues, as the Charter was not applicable in these circumstances. The receipt and viewing of the foreign-gathered evidence was not an intercept of communications within the communication process so as to engage the authorization provisions of the Criminal Code. The search of the appellants’ communications was authorized by a Californian court. All of the evidence obtained in the US investigation of the appellants’ criminal activities in California was gathered in the US. The fact that the appellants were residents of Canada, and that their intercepted email communications occurred in Canada, did not convert the US investigation into a Canadian investigation. Only when the US investigation was completed, did the US agency loan its server to the Canadian agency. In these circumstances, the Charter did not apply to the lawful actions of foreign law enforcement agencies. Based on the judge’s finding that Mehan’s waiver of his right to counsel was clear and unequivocal at the commencement of the police interview, and his expressed understanding of the nature of the charges he was facing, it was open to the judge to reasonably assume he was aware of the consequences of waiving his right to counsel and his decision to do so was informed. There was no evidence police took advantage of Mehan’s intoxicated state as alleged, when he was found to have had an operating mind throughout the interview.