






Citation:


R. 
          v. Mojtahedpour


Date:
20030115







2003 
          BCCA 22


Docket:


CA028554













COURT 
          OF APPEAL FOR BRITISH COLUMBIA






BETWEEN:






REGINA






RESPONDENT








AND:






KAMRAN MOJTAHEDPOUR






APPELLANT














Before:


The 
          Honourable Chief Justice Finch







The 
          Honourable Madam Justice Newbury







The 
          Honourable Mr. Justice Hall










W. 
          Ehrcke, Q.C.


Counsel 
          for the Appellant




G. 
          DelBigio


Counsel 
          for the Respondent




Place 
          and Date of Hearing:


Vancouver, 
          British Columbia




3 October 2002




Place 
          and Date of Judgment:


Vancouver, 
          British Columbia




15 January 2003








Written 
    Reasons by:

The 
    Honourable Mr. Justice Hall



Concurred 
    in by:

The 
    Honourable Chief Justice Finch



Concurring 
    Reasons by:

The 
    Honourable Madam Justice Newbury  (Page 16, para. 26)


Reasons for Judgment of the Honourable 
    Mr. Justice Hall:






[1]

On April 9, 2001, this appellant was convicted by a Supreme Court judge 
    on two counts of wilfully attempting to obstruct, pervert or defeat the course 
    of justice.  The obstruction alleged was making false statements to a police 
    officer in the course of an investigation.  On April 30, 2001, he was sentenced 
    to a nine month conditional sentence.

[2]

The issue in the case is about the admissibility of intercepted private 
    communications between the appellant and his parents, which communications 
    occurred around 6:30 a.m. on September 15, 1997, at an interview room in the 
    North Vancouver R.C.M.P. detachment.  The appellant argues that the conversation 
    ought to be held to have not been lawfully intercepted and seeks to have it 
    excluded as evidence at trial.  The Crown argues that there were no unlawful 
    features in the interception but that in any event, the intercepted conversation 
    ought to be found admissible pursuant to s. 24(2) of the
Charter of 
    Rights and Freedoms
.

[3]

The background to the case is as follows.  A fatal shooting occurred 
    in a movie theatre in North Vancouver on February 2, 1997.  The police suspected 
    that the perpetrator of the crime to be a person named Caster.  Caster was 
    a friend or acquaintance of the appellant.  The police interviewed the appellant 
    on March 2, 1997, concerning the whereabouts of himself and Caster at the 
    time of the homicide.  As is now apparent, the appellant then lied to the 
    police in claiming that he was at another location with Caster at the time 
    of the homicide.  That false statement was the subject of Count 1, the first 
    charge on which the appellant was convicted.  The police continued to work 
    on the case.  By September 13, 1997, they had amassed enough evidence to arrest 
    Caster and charge him with the murder.  I gather that the success of the investigation 
    against Caster resulted from evidence developed in an undercover operation.  
    By September 13, the police had also concluded that the narrative of events 
    given by the appellant to support an alibi for Caster was false.

[4]

After arresting Caster and an alleged accomplice in September, the 
    police decided to re-interview the appellant.  One of the officers suggested 
    that their purpose for doing so was as follows:

 we 
    sought the truth to advance the investigation and that included establishing 
    that Mojtahedpour was giving us a false alibi  primarily,  we wanted the 
    truth and we didn't believe his story and we wanted him as a witness against 
    Caster and any investigation of obstruction was secondary.





[5]

In furtherance of their investigation, police officers attended, in 
    Coquitlam, at the residence of the appellant, where he resided with his parents, 
    around 10 o'clock on the evening of September 14, 1997.

[6]

The trial judge found their object was to determine what the appellant 
    truly knew about the events of February 28 and whether they would be able 
    to use him as a witness against Caster.  The officers who went to the house 
    had no particular instructions as to what do if the appellant refused to come 
    with them.  Their object was to persuade him to come with them on a voluntary 
    basis.  They asked him to do so in the presence of his parents.  One of the 
    officers admitted in his evidence that if the appellant had then refused, 
    he would probably have arrested him.  It appeared they had been instructed 
    that if the appellant refused to go with them, they were to simply leave.  
    In any event, that circumstance did not arise since the appellant agreed to 
    accompany them to police headquarters at North Vancouver.

[7]

The residence in Coquitlam was about an hour's drive away from the 
    North Vancouver detachment.  The police transported the appellant back to 
    the North Vancouver Detachment, arriving there in the late evening.  The parents 
    of the appellant also drove to the detachment at this time but not long after 
    the commencement of the interview between the police and the appellant and 
    at the suggestion of the appellant, his parents were advised to return home.  
    There then followed a lengthy interrogation of the appellant by various police 
    officers.  The appellant continued to resist the suggestion that he knew more 
    about the homicide than he was telling them.  He again reiterated that he 
    and Caster had been elsewhere at the time of the shooting.  That, of course, 
    was false and this formed the basis for the second charge of which he was 
    convicted.

[8]

In the course of their investigation of the homicide in late July of 
    1997, the police had obtained from a judge an authorization to intercept the 
    private communication of amongst others persons the appellant and his parents.  
    The authorization permitted interception at various locations including the 
    home of the Mojtahedpour family.  The appellant and his parents were named 
    parties in the authorization to intercept private communications.  The authorization 
    was recited to be in force between July 27, 1997 and September 21, 1997, a 
    period not exceeding 60 days, to conform with the provisions of s. 186(4)(e) 
    of the
Criminal Code
.

[9]

Around 6 a.m. on the morning of September 15, 
    the parents of the appellant were contacted at their home by the police.  It 
    was suggested to them that they ought then to attend police headquarters in 
    North Vancouver as their son might have something to say to them.  The appellant 
    was concurrently advised that his parents were coming to the detachment and 
    that he would be given an opportunity to speak to them in a room at the detachment.  
    One of the officers said to the appellant at this time:

Your 
    parents are downstairs and we have a room sort of set aside where you can 
    talk to them and sort of explain, you know, your position on things.  I know 
    they're pretty anxious about what's going on.  Why don't you come on downstairs.  
    You guys can sit in comfort.





[10]

The 
    appellant was taken from the area where he had been interviewed to a room 
    in another part of the building.  He and his parents were placed in that interview 
    room.  I gather the room is normally used as a victim assistance interview 
    room.  On this occasion, the police had, prior to having the appellant and 
    his parents enter the room, set matters up technically so that any conversation 
    between the appellant and his parents could be intercepted and tape recorded.  
    As the police hoped, the appellant acknowledged in conversation with the parents 
    that he had been with Caster at the scene of the homicide and had given misinformation 
    on the subject to police investigators.  The resultant tape recording was 
    translated and transcribed.  Thus, he acknowledged in the intercepted communications 
    that he had lied to the police, the
actus
reus
of the offences with which he was 
    charged and ultimately convicted.  The evidence from the intercepted conversation 
    provided the basis for the convictions.

[11]

At 
    the trial proceedings, counsel for the Crown conceded that the appellant had 
    been detained by the police overnight at the detachment.  There was at times 
    some imprecision in the evidence as to his exact custodial status but I believe 
    that concession to be governing.  The police, in a general way, had given 
    the appellant a s. 10 Charter warning, which warning the judge found sufficient.  
    It was argued at trial that the prolonged police interrogation of September 
    14-15 was violative of the rights of the appellant and that the conversation 
    should be excluded on that ground.  The judge did not accede to that submission 
    and neither would I.  I cannot conclude that there was any breach of any
Charter
rights of this appellant in the conduct of the police in their dealings with 
    the appellant.

[12]

The 
    main focus of the appeal and the principal point argued before us was the 
    question as to whether or not the conversation of September 15 between the 
    appellant and his parents had been lawfully intercepted.  As I noted,
supra
, 
    the authorization, by its terms, permitted interception of the private communications 
    of the appellant and other persons including his parents at various specific 
    locations, in or near certain described motor vehicles.  It also permitted 
    the interception of communications:

at any 
    other place or premises, either mobile or stationary, in the Province of British 
    Columbia or elsewhere in Canada, resorted to or used by the persons referred 
    to in paragraph 3,...





[13]

The 
    appellant argues that because the appellant and his parents were "brought 
    to" the room where the conversation was intercepted in the police station, 
    the interception was not made pursuant to the requirements of the authorization.  
    The authorization, by its terms, provided that interceptions could be made 
    at a place "resorted to" or "used by" those named in the 
    authorization.  It was submitted that what was done by the police to obtain 
    evidence of the conversation was not within the parameters provided for in 
    the authorization.  Therefore, it is submitted, this interception was not 
    lawfully made and the evidence ought to have been excluded by the learned 
    trial judge.

[14]

Concerning 
    the admissibility of what was said by the appellant to his parents in the 
    interview room, the learned trial judge ruled as follows:

In terms 
    of the Victims Assistance Room, I conclude nothing done by the police compelled 
    him to speak with his parents and thus while his own untrammelled tongue was 
    his undoing it did not come as a consequence of any inappropriate conduct 
    on the part of the police.  All they did was to give him the false sense of 
    security that he could speak with his parents out of the presence of police 
    officers.  The interception as I have concluded was itself lawful and thus 
    they were entitled to record the conversation.
I accordingly find no basis 
    to consider s. 24(2) of the Charter
.



[my 
    emphasis]





[15]

The 
    trial judge, having found admissible the evidence that incontestably proved 
    the case against the appellant, he was found guilty as charged.

[16]

The 
    narrow question to be decided on this appeal is whether or not the conclusion 
    of the trial judge that the interception was lawfully made should be sustained.  
    The appellant submits that if we conclude that the interception was not lawfully 
    made, the matter should be dealt with by way of a new trial where a judge 
    can pass on the question of the admissibility of the evidence under s. 24(2) 
    of the
Charter
.  The Crown, as I noted, submits that there was 
    nothing unlawful in the circumstances of interception and further that even 
    if it should be found that the interception was not lawfully made, this Court 
    should hold the evidence to be properly admissible under s. 24(2) of 
    the
Charter
.

[17]

The 
    words employed by the trial judge in his ruling, "his own untrammelled 
    tongue was his undoing" would appear to be taken from an earlier judgment 
    of this Court,
R. v. Roberts
(1997), B.C.J. No. 765.  That was 
    a homicide case where police officers posing as criminals befriended the appellant 
    and persuaded him to give them detailed information about how he had killed 
    his wife and children.  He was subsequently convicted of the murders and appealed.  
    This Court dismissed his appeal.  At issue in that case was the admissibility 
    of what he had said to the undercover officers.  In the course of the judgment, 
    I said this:

...The words of Scollin J. of the Manitoba Queens Bench in
R. v. Skinner
(1992), 17 C.R. (4th) 265 at p. 275, trenchantly express what I think could 
    fairly be said about this appellant and about the conduct of the police in 
    this case:



The difference between the unpalatable and the inedible is generally a matter 
    of personal taste.  Absent "dirty tricks", the courts should not 
    set themselves up as the arbiters of good taste or of the preferred methods 
    of investigation.  It is unrealistic to demand chivalry from those who must 
    investigate what are often heinous offences against blameless victims.  The 
    law should not appear to materialize as a revolutionary rabbit from a judicial 
    magician's hat.  Both the common law and the
Charter
justly preserve the accused from coercion and endow him with specific rights 
    which he may exercise at the time of his arrest and while he is in custody; 
    but the courts should not be so indulgent as to preserve the accused from 
    himself and his own untrammeled tongue, and should require realistic justification 
    for suppressing facts from the jury which go to weight rather than to admissibility.



In the 
    case at bar, the police put on a good show, the appellant fell for it and 
    "his own untrammeled tongue" did him in.  The reasonable well-informed 
    member of the community would be not at all shocked by this police conduct 
    but would, I believe, unhesitatingly endorse it.  There is here no abuse of 
    process nor any breach of the Section 7 rights of the appellant.





[18]

The 
    present case is, of course, very different and distinguishable from the situation 
    being considered in
Roberts
.  In that sort of case, the police 
    "put on a show" for a suspect and hope to get him to admit to persons 
    posing as criminals details about the crime they are investigating.  The suspect 
    in those cases has no belief that he or she is speaking to police officers.

[19]

In 
    my opinion, the authorization in the instant case was facially valid.  There 
    was no over breadth as was found to be the situation in some of the earlier 
    authorities that were cited to us, such as
R. v. Grabowksi,
[1985] 2 S.C.R. 434.  I agree with and adopt what was said about the meaning 
    of "resorts to" as connoting "go" in the case of
R. 
    v. LeClerc
(1985), 20 C.C.C. (3d) 173 (B.C.C.A.).

[20]

I 
    am in general agreement with the comments of the trial judge concerning the 
    term "used by".  The trial judge said:

The 
    term "to use" means to cause to act or serve for a purpose, to bring 
    into service and to avail oneself.





[21]

However, 
    those considerations do not quite characterize what happened in this case.  
    In
R. v. Hillier
(1997), N.J. No. 125, O'Regan J. had before 
    him a case where an electronic device had been placed in a police holding 
    cell.  The operative clause in the authorization to intercept private communications 
    was as follows:

The 
    communication of the persons referred to in paragraph C may be intercepted 
    at:



"(iv)  
    and any place or premises either stationary or mobile, including any motor 
    vehicles resorted to or used by any of the persons referred to in Paragraph 
    C."





[22]

He 
    went on to say:

A common 
    sense interpretation of a clause which says

"resorted 
    to" or "used by" would not include a jail cell where the accused 
    is placed.  To say that those suspected of involvement in drug conspiracy 
    would "resort to" a jail cell for their activities does not have 
    an air of reality.  Counsel for the applicants relies on the interpretation 
    of Sopinka, J. in Thompson (1990), 59 C.C.C. (3d) 225 (S.C.C.) at p. 296:



"In 
    my view, the proper interpretation of the "resort to" clause is 
    that the police can only intercept communications of the target at a place 
    to which, based on evidence, they believe on reasonable and probable grounds 
    the target has resorted or will resort.  To this extent there is prior authorization.  
    Before dealing with whether the Hunter v. Southam requirement of prior authorization 
    is met, I canvass the issue of what evidence is required to prove "resorting 
    to. ...



Of 
    course, this does not end the inquiry in the case at bar.  One must then ask 
    whether there is other evidence that the target person "resorted to" 
    a particular location.  The level of evidence required, in my view, is that 
    which would lead the police to believe on reasonable and probable grounds 
    that a person will resort to a particular location. ..."



My interpretation 
    of the comments of Sopinka J. in Thompson is that there must clearly be reasonable 
    and probable grounds to believe that an individual has resorted to or will 
    resort to a particular location.  There is definitely nothing in the evidence 
    before me to suggest that the applicants had planned to resort to the R.C.M.P. 
    cells.  There is, however, ample evidence to show that the police had every 
    intention to bring them to the police cells while searching the residence 
    with the added hope that the private communications being intercepted would 
    lead to admissible evidence.  In my opinion, there is a great difference when 
    one considers the words "resorting to" as opposed to "brought 
    to".



I find 
    that the "resort to" clause is not sufficient to allow the interception 
    in the cells.  Whether or not the authorization to intercept at the jail would 
    have been granted if expressly requested is a question for another day.





[23]

The 
    judge in that case did not at any length consider what might be encompassed 
    by the term "used by".  It is possible to argue that "used 
    by" is a term of wider import and that it could encompass what occurred 
    at police headquarters on September 15.  However, in the particular circumstances 
    of this case, I am not persuaded that this authorization should be interpreted 
    to cover what occurred here.  I do not read the authorization that was granted 
    here in July as envisaging these rather unusual factual circumstances.  I 
    consider the interception made here was beyond the parameters of the authorization.  
    The appellant, who was acknowledged to be detained, was placed in the room 
    to talk to the parents.  I think it would be a linguistic stretch to say that 
    in these circumstances, the site of the interception was a place being "resorted 
    to" or "used by" the targets of the authorization.

[24]

Because 
    I reach that conclusion, I consider the conversation between the appellant 
    and his parents was not lawfully intercepted.  That leaves for consideration 
    the s. 24(2) issue.  The trial judge, of course, was never required to consider 
    that issue because of his conclusion that the interception had been lawfully 
    made.  Thus, the issue remains unresolved at the trial court level.

[25]

A 
    trial court is usually considered to be somewhat more favourably situated 
    to consider such a matter.  A trial judge will be more conversant with the 
    circumstances of the case and is well placed to assess such a question.  Considerations 
    such as investigative conduct, the seriousness of the charge and the like 
    fall to be considered on the issue of admissibility.  There are, of course, 
    cases where such an issue can properly be considered on appeal but I am not 
    persuaded that we should decide that issue in this case.  I would not accede 
    to the suggestion of the Crown respondent that we should decide this issue.  
    I would therefore order a new trial in this case.







The 
    Honourable Mr. Justice Hall







I AGREE:









The Honourable Chief 
    Justice Finch








Reasons 
    for Judgment of the Honourable Madam Justice Newbury:





[26]

I 
    agree with my colleague Mr. Justice Hall that the conversation between the 
    appellant and his parents was not lawfully intercepted and that a new trial 
    should be ordered.  However, I reach the first conclusion for somewhat different 
    reasons than he.  I will state them very briefly.

[27]

First, 
    it is important to distinguish between the question of the validity of the 
    authorization and the ambit or meaning of the words used in the authorization, 
    assuming it is valid.  My colleague focuses on the second question.  He concludes 
    that it would be stretching the phrase "used by" too far to say 
    that in the circumstances of this case, the site of the interception fell 
    within the terms of the authorization.

[28]

Approaching 
    this question solely on the basis of the wording used, I am not persuaded 
    this is correct.  In my view, the word "use" has a very wide meaning 
    in its ordinary and natural sense.  In ordinary parlance, it is common to 
    refer to "using" a room in which to talk or meet.  It would not 
    have been unusual in the case at bar, for example, for the appellant and his 
    parents to ask if they could "use" a room in which to speak privately, 
    nor for the police to suggest that the appellant and his parents were welcome 
    to "use" the room for that purpose.

[29]

That 
    does not, in my view, decide the question of principle that arises under s. 
    8 of the
Canadian Charter of Rights and Freedoms.
Section 8 
    as it relates to wiretap authorizations was discussed at length by Sopinka 
    J. for the majority in
R. v. Thompson
[1990] 2 S.C.R. 1111, 
    59 C.C.C. (3d) 225.  In that case, two "resort to" clauses were 
    at issue in three very similar authorizations.  Paragraph (c) of each authorization 
    named various persons whose private communications could be intercepted at 
    particular locations "or elsewhere in the Province of British Columbia 
    resorted to by the [named persons]."  The authorizations also stated:

(d)  
    The persons whose identities are not known as of the date hereof whose private 
    communications may be intercepted and the places at which private communications 
    may be intercepted are:



(i)  
    those persons who
resort to or use the premises
described in sub-paragraph 
    (c) hereof, or



(ii) 
    those persons who are in communication with the persons described in sub-paragraph 
    (c) hereof apparently with respect to an offence mentioned in paragraph (a) 
    hereof;



which 
    private communications may be intercepted at any of the premises hereinbefore 
    described and
any place or premises in the Province of British Columbia 
    resorted to or used by the persons
described in sub-paragraph (c) hereof.  
    [at 257; emphasis added.]

[30]

In 
    discussing the appellant's attack in
Thompson
on the clauses 
    in question, Sopinka J. for the majority noted that unlike the authorization 
    in
Grabowski v. The Queen
(1985) 22 C.C.C. (3d) 449 (S.C.C.), 
    the authorizations at issue did not "permit the interception of communications 
    of anyone anywhere within the Province.  It is limited in location to places 
    resorted to by certain named individuals." (at 265)  Thus the authorizations 
    were found to be in compliance with the requirements of (then) s. 178.16 of 
    the
Criminal Code
.  Further, he said:

A 
    basket clause which would permit interception of any persons unknown to the 
    police at the time of the application for the authorization and which would 
    permit the police to intercept such communications at any place provided that 
    there are reasonable and probable grounds to believe that the interception 
    may assist in the investigation has been held to be invalid. The basis for 
    that decision is that such a clause vests in the police the discretion to 
    intercept the private communications of any or all persons if there are reasonable 
    or probable grounds to believe that the interceptions would assist in the 
    investigations, which is the function given by statute to the issuing judge 
    . . . .  Neither paras. (c) nor (d) of the authorizations in this case is 
    in that category. Each contains limitations. Paragraph (c) is limited to named 
    persons. Paragraph (d) is limited to persons who resort to or use named premises 
    or communicate with named persons. As to place, each is limited to places 
    resorted to by five named individuals. It cannot therefore be said to delegate 
    to the police the determination as to whether the interceptions would assist 
    in the investigation. [at 265-6]

[31]

Sopinka 
    J. then turned to the so-called "minimization" argument under s. 
    8 of the
Charter
.  He concluded that the "resort to" 
    clause
per se
did not offend the requirement of prior judicial authorization 
    referred to in
Hunter v. Southam Inc.
[1984] 2 S.C.R. 145, or 
    constitute a delegation of the function of authorization from a judge to the 
    officers conducting the surveillance.  However, he continued:

. . 
    . the proper interpretation of the "resort to" clause is that the 
    police can only intercept communications of the target
at a place to which, 
    based on evidence, they believe on reasonable and probable grounds the target 
    has resorted or will resort
. To this extent there is prior authorization.  
    [at 269; emphasis added.]





After 
    considering the meaning of the phrase "resort to" (which he seemed 
    at some points to equate with "use"), Sopinka J. agreed with the 
    Ontario Court of Appeal in
R. v. Niles
(1978) 40 C.C.C. (2d) 
    512, that the identification of the targeted person's voice could not alone 
    be sufficient to constitute evidence of this kind.  To hold otherwise, he 
    said, would encourage the police to monitor communications indiscriminately, 
    "with the foreknowledge that any relevant communications that happen 
    to turn up would be found, in a sense retroactively, to have been justified."  
    He continued:

Of course, this does not end the inquiry in the case at bar. One must then 
    ask whether there is other evidence that the target person "
resorted 
    to
" a particular location.  The level of evidence required, in my 
    view, is that which would lead the police to believe on reasonable and probable 
    grounds that a person
will resort to
a particular location. The Crown 
    submits, and I agree, that "resorting to" can be established through 
    a previously lawfully authorized interception. For instance, if a target says 
    that he or she
is going to use
a particular telephone, this would provide 
    reasonable and probable grounds to believe that a person "resorted to" 
    a particular location. The evidence need not in my opinion take a particular 
    form, e.g. visual surveillance, so long as it is probative of the fact in 
    issue. In the absence of evidence to the contrary, the trial judge would be 
    justified in concluding that the authorization had been complied with.  [at 
    270; emphasis added.]





[32]

In 
    the result, the majority of the Court in
Thompson
held that 
    to the extent that authorizations had been used by the police to monitor pay 
    phones not specifically described in the authorization and without supporting 
    evidence that created reasonable grounds for believing such phones would be 
    used by the targeted persons, the officers had engaged in an unreasonable 
    search contrary to s. 8 of the
Charter
.  At 280,  Sopinka J. 
    then summarized two of his conclusions as follows:

(i)  
    Interceptions authorized by para.(c) are lawful, provided that the police 
    acted upon sufficient evidence that a person "
resorted to"
a place. Interceptions at places for which such evidence is absent are unlawful.



(ii) 
    Interceptions obtained at public pay telephones in the absence of reasonable 
    and probable grounds for believing that the telephone
was in

use
by a target
at the time the listening device was activated
were obtained 
    contrary to s. 8 of the
Charter
. . . .

Thus, 
    the interceptions characterized as unlawful in (i) are subject to the absolute 
    exclusionary rule of s. 178.16(1), and are therefore inadmissible. Interceptions 
    characterized as unreasonable in (ii) . . . are not properly characterized 
    as unlawful. [Emphasis added.]





[33]

Although 
    I must say I find it difficult to reconcile these conclusions
exactly
with the other passages quoted above and in particular I find the tenses of 
    the verbs underlined in the quoted passages to be confusing, I take the judgment 
    as a whole to mean that: (i) the use of a "basket clause" such as 
    that in issue here is not
per
se unlawful in the sense that such clauses 
    do not comply with the requirements of what is now Part VI of the
Code
; 
    but that (ii) in order not to infringe the requirement of reasonableness under 
    s. 8 of the
Charter
, at the time the police activate the authorized 
    listening device they must have evidence that provides reasonable and probable 
    grounds to believe that the facility (in this case, the room) will be used 
    or is being used by one or more of the targeted persons.  (Sopinka J. used 
    the words "was in use" and "resorted to" in the passage 
    quoted immediately above, but the earlier portions of his reasons suggest 
    that evidence that the telephone (or in this case, the room)
will be used
at a future time would also meet the requirements of s. 8.)  The evidence 
    must be independent of the fact that, by the time of trial, the person or 
    persons
did
in fact resort to or use the facility in question.

[34]

It 
    is difficult to apply these principles to the case at bar.  It is clear the 
    meeting room was "used by" the appellant and his parents, and that 
    at the time the listening device was activated, the police
knew
the 
    appellant and his parents would be "using" the room.  But in this 
    instance, they knew because it was they who directed the appellant and his 
    parents to do so.  Had it not been for this suggestion, the appellant and 
    his parents would not have done so.  There could have been no reasonable and 
    probable grounds for believing they would do so
except
for the police 
    officer's own suggestion.  The facts go beyond the 'retroactive validation' 
    found objectionable in
Niles
,
supra
, to prospective manipulation.  In my opinion, these 
    circumstances do not constitute the kind of "evidence" the Court 
    had in mind in
Thompson
, notwithstanding that one might say 
    the bare requirements of para. (ii) quoted above from the Court's judgment 
    were met.  If the Crown were permitted to use this evidence, it would be open 
    to the police to manoeuvre suspects into places or facilities for the express 
    purpose of intercepting statements, without any evidence justifying an expectation 
    that the target would otherwise have used or resorted to the location or facility.  
    On my reading of
Thompson
, the Supreme Court would regard this 
    result as an unreasonable delegation of authority to law enforcement officers 
    and an unacceptable violation of privacy. Accordingly, I find that the appellant's 
    rights under s. 8 of the
Charter
were breached in this case.

[35]

I 
    agree with Hall J.A. that the question of whether the admission of the evidence 
    thus obtained would bring the administration of justice into disrepute is 
    properly the province of a trial judge and I therefore join with him in concluding 
    that a new trial should be ordered.







The 
    Honourable Madam Justice Newbury




