Intercepted communications violated Charter: OntarioCourt of Appeal

Apr 26, 2021 By Matthew Friedberg

Intercepted communications violated Charter: Ontario
Court of Appeal
By Jeff Buckstein

(April 15, 2021, 2:10 PM EDT) -- In a rare double ruling, the Court of Appeal for Ontario has delivered a decisive message that the admissibility of intercepted communications by police forces pursuant to the Criminal Code must adhere to the Canadian Charter of Rights and Freedoms if convictions are to withstand a legal challenge.

In R. v. Bashir 2021 ONCA 200, the Court of Appeal was faced with the unusual task of hearing two Ontario lower court decisions where, in both cases, the accused sought the exclusion of the evidence obtained against them, maintaining that such authorization had been improperly granted. Yet the trial judge in each case came to a very different conclusion.

In R. v. Fazeli 2018 ONCJ 705, Justice Trevor Brown of the Ontario Court of Justice ruled that the authorization for that evidence had been properly granted, and Patrick Thibault and Mathieu Vaillant were convicted on drug-related charges. The Ontario Court of Justice case involved several additional defendants, including Adnan Fazeli, whose name is cited in the case.

Thibault and Vaillant, only, were appealing that Ontario Court of Justice decision. In R. v. Bashir 2019 ONSC 4937, Justice Sylvia Corthorn of the Superior Court of Justice ruled in 2019 that such evidence had not been properly obtained. Faysal Bashir and Said Muddei were acquitted on charges relating to an alleged home invasion. The Crown was appealing that decision. "Both trial judges cannot be correct," wrote Court of Appeal Justice David Doherty, in a unanimous decision backed by Justices Benjamin Zarnett and Steve Coroza.

"While different judges asked to grant an authorization on the same evidence might reasonably and properly come to different conclusions as to whether to grant the authorization, the decision of the reviewing judge as to whether the authorization could have been granted is a question of law, which admits of only one correct answer," he elaborated.

The evidence against Thibault and Vaillant stemmed from a wiretap established by the Ottawa Police Service in 2016 to obtain information from a cold murder case dating back to 2009. The application sought to intercept communications between seven persons of interest, including five believed to have been part of the group that included the shooter. Bashir was among that group, but Muddei was not, although both ended up on trial for the alleged home invasion as a result of the wiretap. The proposed investigative plan was central as to whether the police had reasonable grounds to believe the interceptions would afford evidence of the homicide, noted Justice Doherty, who said in his ruling there was "virtually no evidence of any contact among the targets for many years prior to the authorization application."

The decision also noted a lack of evidence that the police had taken investigative steps to determine whether Bashir had reconnected with any of his old associates, as well as "little, if any, investigation to attempt to update the homicide investigation before applying for the authorization." The court quashed the convictions in R v. Fazeli, ruling that "the evidence obtained pursuant to the authorization should have been excluded under s. 24(2) of the Charter." It also dismissed the appeal from the acquittals in R. v. Bashir.

John Fennel, a lawyer with Caramanna, Friedberg LLP in Toronto, agrees with those decisions. "I think the Appeals Court got it right here. The justification provided for the wiretaps were essentially the same, so they should have had the same result. The wiretaps shouldn't have been approved," he said.

Fennel said this decision is instructive for lawyers because the Court of Appeal weighed in on the "notoriously difficult distinction between speculation and an inference" in ruling that this case was speculative because the police, in their quest for a wiretap to uncover evidence for an ongoing murder investigation, failed to provide a credibility-based probability to rise above suspicion, as they needed to do.

"The way the court drew a distinction between the information offered by the police and what was lacking and why it was speculation — and not reasonable and probable grounds — gives lawyers another tool to look at when trying to argue that distinction to say that a prior authorization should not have occurred," he explained.

Lakin Afolabi, Lakin Afolabi Law Professional Corporation

Lakin Afolabi, principal of Lakin Afolabi Law Professional Corporation in London, Ont., also agrees with the judges' decision with respect to both cases.

To have ruled otherwise would have created a regime where police powers could grow out of control. This decision therefore reaffirms limitations on the powers of the state insofar as it relates to intrusions on our personal lives, including personal communications, Afolabi asserted.

Afolabi views this decision as being instructive for both lawyers and the police in a couple of key areas.

He cited Justice Doherty's comment that "the police wanted to wiretap first and use the fruits of their wiretaps to hopefully develop an investigative plan that would provide the necessary credibly-based probability to justify interceptions under s. 186(1)(a) [of the Criminal Code]." 

The decision further elaborated that "It is not enough that the authorizations will afford evidence at some point down the investigative road, after the police, using information gathered through wiretapping, have developed an effective plan to prompt communications among the targets." "Essentially this is telling the police that you can't put the cart before the horse when it comes to privacy rights," said Afolabi.

He also noted where Justice Doherty wrote "the line between speculation and inference can sometimes be difficult to draw, as can the line between credibility-based probability and suspicion."

This part of the decision affirms that suspicion cannot be used in place of reasonable belief and reasonable grounds, said Afolabi.

Jeremy Streeter, a Toronto-based senior counsel with the Public Prosecution Service of Canada, and co-counsel for the Crown in the R. v. Thibault and Vaillant appeal, did not wish to comment on the Court of Appeal decision.

Howard Krongold, Abergel Goldstein & Partners LLP

But, Streeter noted, this decision is instructive because it provides guidance on "whether the legal test had been met to obtain a wiretap authorization to investigate a historical crime." "We are thrilled by the decision. It is extremely rare for the Court of Appeal to strike down a wiretap warrant, and we're very pleased that the Court saw the weaknesses in the warrant here and excluded the evidence," said Howard Krongold, a partner with Abergel Goldstein & Partners LLP in Ottawa, and counsel to appellant Vaillant.

"The main issue in this case is that police tried to revive a cold-case murder investigation without doing even the basic legwork required to make sure that a wiretap was justified and necessary," Krongold said. "This decision reinforces that police will not be readily excused when they try to use a wiretap warrant as a shortcut to a thorough investigation."

"We were very pleased with the result. It was our position all along that this authorization in this very specific context fell short of the constitutional standard mandated for such a significant intrusion on privacy as getting a wiretap," said Brandon Crawford, a partner with Foord & Crawford LLP in Ottawa, who acted as co-counsel to appellant Thibault.

Solomon Friedman, Friedman Mansour LLP

"Generally courts don't too readily interfere because that's a very deferential standard. Then thestandard of appeal is even more deferential. So it was significant that at the Court of Appeal we havea respected senior criminal jurist deciding that the authorization could not have issued here,"Crawford elaborated.

Solomon Friedman, a partner with Friedman Mansour LLP in Ottawa, and counsel for respondentFaysal Bashir said, "We believe that Justice Corthorn got it right and were delighted that the Court ofAppeal agreed."

Friedman said this case is instructive for both lawyers and police as a reminder that "reasonable andprobable grounds is a robust standard. It is not just a rubber stamp of police investigative conduct. Italso stands for the proposition that investigative necessity is a standard that has teeth."

The Lawyer's Daily also reached out to the Crown counsel for the R. v. Bashir appeal, as well ascounsel for the respondent Muddei, but did not get responses.