



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hafizi, 2016 ONCA 933

DATE: 20161214

DOCKET: C59173

Gillese, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Temorshah Hafizi

Respondent

Iona Jaffe, for the appellant

Howard Krongold, for the respondent

Heard: September 14, 2016

On appeal from the acquittal entered on July 9, 2014 by
    Justice Robert N. Beaudoin of the Superior Court of Justice, sitting without a jury,
    with reasons reported at 2014 ONSC 3547.

Brown J.A.:

I.        OVERVIEW

[1]

The Crown appeals the
    acquittal of the respondent, Temorshah Hafizi, on charges of trafficking
    heroin, possession of heroin for the purposes of trafficking, possession of the
    proceeds of crime, threatening death or bodily harm, and breach of
    recognizance.

[2]

The respondent was named in
    a wiretap order granted under s. 186 of the
Criminal Code
as part of a
    police investigation into a murder in which his son was the prime suspect. The
    order authorized the interception of the respondents private communications
    made from his residence, place of business, and over his cell phone. Based on communications
    intercepted from the respondents cell phone, the police stopped a vehicle in
    which he was a passenger. They found heroin and a significant quantity of cash.

[3]

The trial judge held the
    respondents rights under s. 8 of the
Canadian Charter of Rights and
    Freedoms
had been violated because there were no reasonable and probable
    grounds to believe the interception of the respondents cell phone
    communications might assist in the investigation of the murder. The trial judge
    held the wiretap authorization, as it related to the respondent, was obtained
    on the basis of insufficient and deliberately misleading information. He
    excluded the heroin and cash pursuant to s. 24(2) of the
Charter
.

[4]

The main issue on appeal is
    whether the trial judge erred in finding the respondents s. 8
Charter
rights were violated. I conclude that he did. In his review, the trial judge
    failed to conduct a contextual analysis of the evidence in the Information to
    Obtain (ITO) and, instead, took a piecemeal approach to individual items of
    evidence shorn of their context. As well, the trial judge substituted his view
    of the evidence for that of the issuing justice.

[5]

I would allow the appeal, set
    aside the acquittals, and order a new trial, without prejudice to the right of
    the respondent to renew his constitutional challenge to ss. 185 and 186 of the
Criminal
    Code
at that time.

II.       EVENTS

[6]

In the early morning hours
    of January 22, 2012, Navid Niran was stabbed to death outside a nightclub in
    Ottawas Byward Market district. The respondents son, Ahmed Hafizi, became the
    prime suspect in the ensuing murder investigation. At the time, Ahmed lived
    with his father and worked at his pizza store, Papa Tonys Pizza.

[7]

On February 6, in the course
    of the murder investigation, Detective Constable Chris Benson of the Ottawa
    Police Service swore a lengthy affidavit in support of an application for a
    wiretap authorization under Part VI of the
Criminal Code
. The proposed
    order named four people as Principal Known Persons: Ahmed Hafizi, two of his
    friends  Imran Hakim and Masstfa Jasem  and the respondent.

[8]

The affidavit set out
    grounds to believe Ahmed Hafizi inflicted the fatal wound on the deceased and
    that his friends, Hakim and Jasem, assisted him during and after the
    altercation. The affidavit stated the respondent was believed to have knowledge
    of his sons involvement in the murder and to have blocked police access to his
    son during the initial investigation.

[9]

On February 7, the issuing
    judge granted the wiretap authorization.

[10]

As
    a result of a combination of intercepted communications and tracking device
    data, in late March 2012 the police formed the belief the respondent had
    travelled to the Toronto area for the purpose of obtaining drugs. Upon his
    return to Ottawa, police stopped the car in which the respondent was a
    passenger. The police arrested the driver and the respondent on charges of possession
    of a controlled substance for the purpose of trafficking.

[11]

When
    the police searched the respondent incident to arrest, they found a significant
    quantity of cash and located heroin in two plastic baggies in a cardboard cell phone
    box in the trunk of the car.

[12]

The
    respondent was committed to stand trial following a preliminary hearing.

[13]

The
    respondent applied for an order granting leave to cross-examine the wiretap
    affiant, a declaration his s. 8
Charter
rights had been infringed, and
    an order excluding the heroin and cash.

[14]

At
    the start of the
Garofoli
hearing before the trial judge, the
    respondent abandoned his application to cross-examine the wiretap affiant. As a
    result, the trial judge did not hear any
viva voce
evidence on the
    application.

[15]

The
    record before the trial judge consisted of: DC Bensons affidavit; the wiretap
    authorization; transcripts of the evidence given by nine police officers at the
    preliminary hearing and discovery; the notebook entries of two police officers;
    four surveillance reports; and the respondents criminal record.

[16]

Following
    a four-day hearing, the trial judge granted the application and ordered the
    exclusion of the seized heroin and cash. The respondent pled guilty to one
    count of uttering a threat and one count of breaching his recognizance. As a
    result of the trial judges
Garofoli
ruling, the Crown called no
    evidence in proof of the drug charges, and the respondent was acquitted.

III.      ISSUES

[17]

The appellant
advances two main grounds
    of appeal
:

(i)

In
    his s. 8
Charter
analysis, the trial judge erred by failing
to conduct a contextual assessment of the grounds in support of the
    wiretap authorization against the respondent and by substituting

his own view about the sufficiency of the
    grounds for that of the issuing justice;
and

(ii)

In his s. 24(2) analysis,
the trial judge erred by imputing
improper intentions to the affiant
of the ITO
in the absence of any
viva voce

evidence
from the officer
.

[18]

The respondent submits

the trial judge applied the correct legal principles and his view of
    the sufficiency of the information in support of the authorization, as
    corrected on review, is entitled to deference. As well, the trial judges
    findings on his s. 24(2) analysis are entitled to considerable deference.

[19]

The respondent raises an additional issue. He
    seeks to renew his constitutional challenge to Part VI of the
Criminal
    Code, which the trial judge did not address in light of his decision to exclude
    the evidence against the respondent.

The respondent
    contends Part VI is unconstitutional to the extent it permits communications to
    be targeted where no reasonable grounds exist to believe the interception
will
afford evidence of an offence.

IV.     FIRST ISSUE: DID THE TRIAL JUDGE ERR IN HIS S. 8
CHARTER
ANALYSIS?

A.      DC Bensons Affidavit

[20]

In
    his affidavit, DC Benson listed the two offences in respect of which an
    authorization to intercept was sought: (i) murder and (ii) any conspiracy to
    commit or attempt or being an accessory after the fact to the commission of, or
    any counseling in relation to, murder.

[21]

DC
    Benson relied on police surveillance evidence to form his belief that
    interception of the respondents private communications might afford
    information and evidence of the offences.

[22]

The
    murder took place early in the morning of January 22, 2012.  DC Benson deposed
    that on the afternoon of January 23, police established surveillance at the
    respondents business, Papa Tonys Pizza. Police observed a car registered to
    the respondent in the parking lot, and saw the respondent working in the store.
    Then, at 9:15 p.m., a car parked in front of the store. The car was registered
    to Jasems sister at the address where Jasem lived. According to DC Benson, the
    surveillance officers reported that two males in mid-20s enter the pizza
    shop, and at 9:33 p.m. both males exit the pizza shop and leave in the car.
    The respondent left the store about half an hour later. In the summary section
    of his affidavit, DC Benson deposed the males were believed to be Hakim and
    Jasem.

[23]

On
    January 25, police officers observed the respondent leaving Papa Tonys Pizza
    at 6:15 p.m. and driving in a manner in which he is aware of or trying to
    detect surveillance. While driving on Highway 417 westbound, at the last second
    [he] cut across four (4) lanes to exit at Catherine Street, at which time the
    officers terminated the surveillance.

[24]

The
    next day, January 26, police officers saw the respondent drive away from his
    residence in the morning. He began to conduct obvious surveillance detection
    techniques, which include U-turns, and aggressive driving. The surveillance
    was terminated.

[25]

Later
    that afternoon, the police again set up surveillance at Papa Tonys Pizza. At
    6:45 p.m., they saw Ahmed Hafizi park in the stores rear lot. At 7:22 p.m.,
    two officers went into the store to locate Ahmed. According to DC Benson,
    Temorshah Hafizi identified himself as Ahmed Hafizis father and stated Ahmed
    Hafizi was at home and provided [a number] as a contact number to speak with Ahmed
    Hafizi. The affidavit went on to state that at 7:43 p.m. one of the officers
    left a voice mail message for Ahmed at that number.

[26]

DC
    Benson deposed that at 9:08 p.m., officers observed Ahmed exit the store, get
    into a car driven by another, drive a short way up the street, and then return
    to the pizza shop. Finally, at 9:56 p.m., the officers saw Ahmed leave the
    pizza store and drive to the residence he shared with his father. In the
    summary section of his affidavit, DC Benson stated the respondent was clearly
    preventing police from speaking to his son.

[27]

Commenting
    on the surveillance evidence, DC Benson stated the respondent now has
    knowledge of the actions of his son Ahmed Hafizi on January 22, 2012. As
    evidence of this, he cited driving behavior and obvious signs of use of
    surveillance detection techniques.

[28]

DC
    Benson also included in his affidavit information from informants. One
    informant provided third hand information that the respondent was heard
    saying it was better the victim was killed rather than his son. DC Benson
    cautioned the issuing justice to take a skeptical view of the informants
    information because, to my knowledge, it is second hand information and not
    direct knowledge. He deposed the informants information did not advance
    investigators in this case and can only be treated as intelligence The
    officer did not include the informants information in his summary of grounds
    for belief in respect of the respondent.

[29]

However,
    DC Benson did offer the following as corroboration of one informants third
    hand information about the respondent:

When police attended Papa Tonys Pizza to locate Ahmed Hafizi
    in order to offer him an opportunity to be interviewed, Temorshah Hafizi
    informed police his son was not at the store. However surveillance confirmed
    Ahmed Hafizi was at the store at that time. Clearly Temorshah Hafizi has
    knowledge and is obstructing the police investigation.

B.      The trial judges ruling

[30]

The
    trial judge acknowledged he was not to substitute his opinion for that of the
    issuing judge. He agreed that perhaps it was open to the issuing judge to
    draw the inferences the Crown sought. However, he stated the analysis changes
    completely when the full record is amplified and corrections are made. Yet he
    also concluded that on its face the affidavit in support did not set out
    reasonable and probable grounds to name the respondent as a person whose
    communications may assist in the investigation of the identified offences. The
    trial judge stated: This is not a case of weighing the evidence; the issue
    here is one of sufficiency.

[31]

The
    trial judge then proceeded to consider the three main events concerning the
    respondent: (i) the attendance of two males at the pizza store on January 23;
    (ii) the police attendance at the store on January 26 to interview Ahmed, and
    their ensuing conversation with the respondent; and (iii) the respondents
    driving.

[32]

As
    for the visit of the two males, the trial judge held that while it could
    reasonably be inferred that one of the men was Jasem  there is no basis to
    conclude that the other was Hakim. He went on to state that even if one could
    conclude that Jasem and Hakim entered the shop, there was no reasonable basis
    to infer that the [respondent] met with them much less that he was involved in
    covering up a murder.

[33]

With
    respect to the officers evidence that on January 26 the respondent lied when
    he told police at the pizza store that his son was at home, the trial judge
    held such evidence was greatly undermined when the surveillance evidence
    reveals that Ahmed had indeed left the pizza shop shortly before the police
    officers interviewed his father. As well, the inference that the respondent
    was preventing the police from speaking to his son was completely undermined
    when another officers notes disclosed the son replied later that evening to
    the voice mail message left by the police. The son ultimately contacted the
    police and referred them to his lawyer.

[34]

As
    to the driving, the trial judge held that when the affidavit was sworn, the
    police knew the respondent was out on bail for drug-related offences and his
    recognizance included a condition that he not possess a cell phone. That
    information was not included in the affidavit. The trial judge stated: The
    disclosure of that information completely negates the inference that the
    [respondents] surveillance awareness was due to his knowledge of his sons
    involvement in a murder.

[35]

The
    trial judge also held the informants information was third hand hearsay and
    it is neither compelling, credible nor reliable. The trial judge characterized
    that evidence as one of the four critical elements in DC Bensons affidavit.
    It is difficult to understand why the trial judge so characterized the evidence
    because DC Benson heavily discounted that evidence, cautioned the issuing
    justice to take a skeptical view of it, and did not include it in his summary
    of grounds for belief.

[36]

The
    trial judge also commented that DC Benson did not confine himself to a simple
    recital of the facts, but put glosses on his conclusions.

[37]

In
    the end, the trial judge concluded he was left with the following facts: the
    [respondent] is Ahmed Hafizis father. They live together and, at the time of
    the murder of Navid Niran, they worked together in the family pizza business.
    There is no evidence to link the [respondent] to the murder of Navid
    NiranHere, all we have is the simple fact of a father and son relationship and
    nothing else. As a result, the trial judge concluded [t]here were no
    reasonable and probable grounds to believe that the interception of the
    [respondents] personal cellphone
might
assist in the investigation of
    the murder or an ancillary offence. (Emphasis in original).

C.      The arguments on appeal

[38]

The
    appellant submits the trial judge confused the standard for wiretap
    authorization with the standard for naming an individual as a known person in
    the authorization. The former requires meeting the twin criteria of the best
    interests of the administration of justice and investigative necessity. The
    latter involves a lower threshold  it does not require a demonstration of
    probable cause in respect of each known person, but the showing of reasonable
    grounds to believe the interception of a persons private communications may
    assist in the investigation of an offence.

[39]

The
    appellant argues the trial judge made two errors in his s. 8
Charter
analysis.
    First, he approached his sufficiency analysis in a piecemeal fashion, assigning
    value to each event without regard to its context. Instead, the trial judge
    should have considered each event in light of the other events and determined
    whether, cumulatively, the grounds provided a basis upon which the issuing justice
    could grant the authorization in respect of the respondent.

[40]

Second,
    the trial judge substituted his view of the evidence for that of the issuing justice,
    instead of ascertaining whether sufficient grounds existed upon which the
    issuing justice could have granted the authorization.

[41]

The
    respondent submits the trial judge applied the correct test to his review of
    the evidence. As well, the trial judges view of the sufficiency of the
    information, as corrected on review, is entitled to deference.

D.      Standard of Review

[42]

On
    an appeal from an order made at a
Garofoli
hearing, this court owes
    deference to the findings of fact made by the reviewing judge in his or her
    assessment of the record, as amplified on review, as well as to his or her
    disposition of the
s. 8

Charter
challenge.
     Absent an error of law, a misapprehension of material evidence or a
    failure to consider relevant evidence, we should decline to interfere:
R.
    v. Beauchamp
, 2015 ONCA 260, 333 O.A.C. 87, at para. 89.

[43]

That
    said, the reviewing judge must also be mindful of his or her narrow role in
    reviewing an authorization. The reviewing judge plays a constitutionally vital
    role in guarding against potentially unjustified invasions of privacy
    authorized in
ex parte
proceedings. But warrants and authorizations are
    presumptively valid, and the reviewing judge must not conduct a
de novo
hearing of the
ex parte
application:
R. v. Sadikov
, 2014 ONCA
    72, 314 O.A.C. 357, at paras. 83  84.

[44]

The test a reviewing judge is to apply is whether, in
    light of the record amplified on review, the ITO contained sufficient reliable
    evidence that might reasonably be believed on the basis of which the
    authorizing justice
could
have concluded that the conditions
    precedent required to be established had been met:
R. v. Nero
,
    2016 ONCA 160, 345 O.A.C. 282, at para. 70. If on the amplified record the reviewing
    judge concludes that the authorizing judge could have granted the
    authorization, then he or she should not interfere:
R. v. Garofoli,
[1990]
    2 S.C.R. 1421, at p. 1452. In this process, 
the
    existence of fraud, non-disclosure, misleading evidence and new evidence are
    all relevant, but, rather than being a prerequisite to review, their sole
    impact is to determine whether there continues to be any basis for the decision
    of the authorizing judge:
Garofoli,
at p. 1452;
R. v. Hall
, 2016
    ONCA 13, 128 O.R. (3d) 641, at paras. 47  48.

[45]

Failure
    to remain within the bounds of a reviewing judges proper role may justify
    appellate intervention.

E.      Analysis

[46]

As
    the starting point for considering the trial judges analysis, one must recall
    that the threshold for naming a person in an affidavit and authorization as a
    known person, within the meaning of s. 185(1)(e) of the
Criminal Code
, 
    is not onerous.  As stated by this court in
Beauchamp
, at para. 105:

Reasonable grounds to believe that a person is involved in an
    offence under investigation are not required.  Nor is it essential that there
    are reasonable grounds to believe that the interception of a persons private
    communications will afford evidence of a listed offence.  Investigators must
    know a persons identity and have reasonable grounds to believe that the
    interception of that persons private communications may assist in the
    investigation of an offence to trigger the identification or known person
    requirement.

[47]

On
    the
Garofoli
application, the respondent did not dispute that
    reasonable grounds existed to obtain a Part VI authorization in respect of his
    son, Ahmed Hafizi, and his two friends, Jasem and Hakim: para. 16. As well, the
    respondent conceded it was reasonable to target his residential and business
    telephone lines because his son lived and worked with him: para. 64. The
    respondent confined his challenge to the inclusion of his cell phone
    communications in the authorization to intercept.

[48]

Despite
    stating the proper standard of review at the outset of his analysis, the trial
    judges reasons disclose he made two closely-connected errors of law in concluding
    insufficient grounds existed to include the respondents cell phone
    communications in the authorization:

(i) He took a piecemeal
    approach to individual items of evidence shorn of their context, instead of
    conducting a contextual analysis of the affidavit material as a whole:
Beauchamp,
at paras. 85-87;
Nero
, at para. 68;
R. v. Spackman
, 2012
    ONCA 905, 300 O.A.C. 14, at para. 223; and

(ii)
    Instead of assessing
whether the ITO, as amplified, contained reliable
    evidence that might reasonably be believed on the basis of which the order

could

have
    issued, the
reviewing judge substituted his view of
    some of the evidence for that of the issuing justice:
Beauchamp
, at
    paras. 85-87;
Nero
, at para. 70.

[49]

There was a larger context that should have informed the trial
    judges assessment of the evidence. By the time the police sought the s. 186 authorization
    in early February, 2012, their investigation had led them to believe the
    respondents son, Ahmed, was the prime suspect in the murder of Navid Niran.
    The police also believed the sons friends, Hakim and Jasem, had been present
    at and assisted the respondents son during the murder.
The police had formed those beliefs based on several sources of information:
    interviews of those present inside and outside the nightclub at the time of the
    murder; video surveillance footage from the nightclub and the surrounding
    neighbourhood; and police surveillance of Ahmed and his two friends. They also
    learned that Ahmed lived with his father and worked at his fathers pizza shop.

[50]

The trial judges rejection of three pieces of evidence contained
    in the ITO resulted from neglecting that larger context.

[51]

The pizza store visit by two males
: First, the trial judge
rejected as supporting evidence
    the police surveillance observations of the visit by two young males to the respondents
    pizza store the day after the murder. It is very difficult to reconcile that rejection
    with the trial judges earlier acknowledgement that one could infer from the
    record that Ahmeds friend, Jasem, was one of the males who visited the pizza
    store  they had arrived driving a car owned by Jasems sister, and Jasem lived
    at the same address as his sister.

[52]

The trial judge went on to conclude there was no reasonable basis
    to infer the respondent met with the males. However, the surveillance evidence described
    by DC Benson recorded: the respondent was in the store at the time; his son was
    not; the males spent over 15 minutes in the store; they left; and shortly thereafter
    the respondent left.

[53]

In his affidavit DC Benson stated both males appeared to have
    entered Papa Tonys Pizza and met with [the respondent] for a brief period of
    time. Although the amplified record disclosed the respondents brother also
    was in the pizza store at the time, what remained in the record continued to
    provide a basis for an inference that the males, one of whom was Ahmeds friend
    Jasem, met with the respondent the day after the murder in the absence of Ahmed.

[54]

The
    respondents driving
: Turning to the evidence of the respondents driving,
    the trial judge noted the amplified record disclosed the respondent was well-known
    to the police for drug-related matters and, at the time of surveillance, was
    out on bail for drug-related offences. That information led the trial judge to
    conclude no inference could be made that the respondents evasive driving was
    due to knowledge of his sons involvement in a murder.

[55]

Yet,
    the police observed two instances of evasive driving by the respondent  the
    first during the early evening of January 25, and the second the following
    morning, on January 26. Both instances had been preceded by the visit of two
    young males to the pizza store the day after the murder in a car registered to
    Jasems sister.

[56]

Placed
    in that larger context, the evidence of the respondents driving, even as
    amplified by the information that he was out on bail on drug-related charges, was
    available to support more than one inference, including the inference advanced
    by DC Benson that the respondent now has knowledge of the actions of his
    sonon January 22, 2012. It is not the reviewing judges role to prefer one
    inference over the other:
Sadikov
, at para. 88. The task of the reviewing
    judge is to assess whether the ITO contained reliable evidence that might
    reasonably be believed on the basis of which the authorization could have
    issued:
Sadikov
, at para. 88. Although a potentially innocent
    explanation cannot be disregarded and may, in a proper case, make an
    inculpatory inference reasonably unavailable, a reviewing judge should not examine
    individual items of evidence out of context in a search for alternative
    exculpatory inferences:
R. v. Liew
, 2015 ONCA 734, 341 O.A.C. 192, at
    para. 46;
Nero
, at paras. 68 and 70.

[57]

The police visit to the pizza store
: The final piece of
    evidence the trial judge rejected concerned the police visit to the respondents
    pizza store on the evening of January 26, 2012. As some officers went into the
    shop, others had the store under surveillance. DC Benson deposed the police
    talked with the respondent who stated his son was at home and provided the
    police with a contact telephone number. DC Benson noted: Surveillance was
    being conducted prior to police arrival and surveillance report confirms Ahmed
    Hafizi was inside Papa Tonys Pizza at the time of [the detectives] visit. In
    the summary portion of the ITO, DC Benson deposed: [The respondent] responded
    by indicating Ahmed Hafizi was at home. Temorshah Hafizi was clearly preventing
    police from speaking to his son.

[58]

The
    trial judge held the amplified record greatly undermined that assertion
    because Ahmed was not working inside his fathers store at the time the police
    spoke with the respondent. Although the trial judge recognized the respondents
    statement that Ahmed was at home is also questionable, he inferred the son
    may have returned to the store without his fathers knowledge.

[59]

The
    amplified record before the trial judge disclosed that as the interviewing
    officers were entering the pizza shop, the surveillance officers saw Ahmed
    leave the shop, go over to a car, and then re-enter the pizza store, where he
    remained until after the interviewing officers had left. Immediately upon
    entering the pizza store, the interviewing officers spoke to the respondent,
    who told them his son had gone home because it was a school night. The
    respondent made that statement notwithstanding the surveillance officers had
    seen Ahmed at the pizza store before the interviewing officers had entered, and
    watched Ahmed continue to work by making pizza deliveries after the
    interviewing officers had left.

[60]

The
    amplified record did not, as held by the trial judge, completely undermine DC
    Bensons statement in the ITO that Ahmed was inside his fathers store at the
    time of the interviewing officers visit. Nor did it completely undermine his
    statement that the respondent was clearly preventing police from speaking to
    his son. Those inferences were open on the record, as amplified. The trial
    judges conclusion to the contrary amounted to an impermissible substitution of
    his view of the evidence for that of the issuing justice.

[61]

The
    trial judges ultimate conclusion that all we have is the simple fact of a
    father and son relationship and nothing else resulted from his assessment of
    the evidence in a piecemeal fashion. When the evidence is assessed cumulatively,
    taking into account the larger context, it went much further: (i) Ahmed was the
    prime suspect in the murder of Navid Niran; (ii) Ahmed lived with his father,
    the respondent; (iii) Ahmed worked at his fathers pizza business and continued
    to do so after Nirans murder; (iv) information obtained by the police led them
    to believe two of Ahmeds friends, Jasem and Hakim, had been present with Ahmed
    at the time of the murder; (v) the day after the murder, at least one of those friends
    visited the pizza shop when Ahmed was not there, but the respondent was, and
    spent about 15 minutes in the store; (vi) the respondent was less than candid when
    he told officers who visited his pizza store on January 26 that his son was not
    there, but at home because it was a school night; and (vii) the respondents
    driving on two occasions strongly suggested he was aware he was under police
    surveillance.

[62]

In
Nero
, this court stated, at para. 125, that [i]t is the effect of the
    evidence taken as a whole that is to be subjected to the standard required, not
    each individual item. The whole is often greater than the sum of its individual
    parts. When approached in that way, and not in a piecemeal fashion, the ITO,
    as amplified, contained reliable evidence that might reasonably be believed on
    the basis of which the authorization
could

have
    issued. It was open to the issuing justice to conclude investigators had
    demonstrated
reasonable grounds to believe that the
    interception of the respondents private communications might assist in the
    investigation of a murder in which his son was the prime suspect.

[63]

The
    request for authorization to intercept the respondents cell phone
    communications did not amount to a mere fishing expedition, as the respondent
    contends. The may assist standard to include the respondent as a Principal
    Known Person was met.

[64]

Accordingly, I would conclude the trial judge erred
in holding that the respondents s. 8
Charter
rights were breached
    because the ITO did not contain sufficient evidence to meet the may assist
    standard in respect of the respondent.

V.      SECOND ISSUE: THE
    RESPONDENTS CONSTITUTIONAL CHALLENGE

[65]

Before
    the trial judge, the respondent argued that Part VI of the
Criminal Code
is unconstitutional to the extent it permits communications to be targeted
    where no reasonable grounds exist to believe the interception
will
afford evidence of an offence. The trial judge concluded he did not have to
    deal with that issue. The respondent seeks to renew his constitutional
    challenge before this court.

[66]

Since
    the trial judge did not deal with this issue, we do not have the benefit of
    reasons from a lower court. Under those circumstances, I would remit the
    respondents application back to a judge of the Superior Court of Justice for argument
    and determination of his constitutional challenge.

VI.     THIRD ISSUE: THE TRIAL JUDGES s. 24(2) ANALYSIS

[67]

Given
    my conclusion that the trial judge erred in finding a violation of s. 8 of the
Charter
,
    it is not strictly necessary to consider the trial judges s. 24(2) analysis.
    However, in the present case the trial judge concluded DC Benson deliberately
    withheld relevant information that would have completely negated the inferences
    he sought to be drawn by the issuing justice: para. 78. He stated: This is
    not a case of inadvertence nor can it be characterized as good faith.

[68]

The
    appellant submits those findings were unsupported by the evidence. The
    appellant notes DC Benson did not testify on the
Garofoli
application;
    the respondent abandoned his application to cross-examine him. The respondent
    argues those findings were open to the trial judge to make, even in the absence
    of any cross-examination of DC Benson.

[69]

With
    due respect to the trial judge, I would accept the appellants submission that
    the amplified record does not support the trial judges conclusion that DC
    Benson deliberately withheld relevant information. Instead, as I have explained
    above, the trial judge erred by failing to assess the evidence as a whole and
    by substituting his view of the evidence for that of the issuing justice. 
    There was simply no basis for the trial judges comments about DC Benson, on
    the record that was before him, and they should not have been made.

VII.    DISPOSITION

[70]

For the reasons set out above, I would allow the appeal, set aside the acquittals,
    and order a new trial, without prejudice to the right of the respondent to
    renew his constitutional challenge to ss. 185 and 186 of the
Criminal Code
at that time.

Released: December 14, 2016 (EEG)

David Brown J.A.

I agree E.E. Gillese
    J.A.

I agree Paul Rouleau
    J.A.


