



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Doroslovac, 2012 ONCA 680

DATE: 20121010

DOCKET: C53188

Winkler C.J.O., Laskin and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Milenko Doroslovac

Respondent

Kevin Wilson, for the appellant

James Marentette, for the respondent

Heard:  April 4, 2012

On appeal from the verdicts of acquittal entered by Justice
    M. D. Parayeski of the Superior Court of Justice, sitting without a jury, on
    December 21, 2010.

Watt J.A.:

[1]

In May, 2008 Slavko Ilic and Milenko Doroslovac (the respondent) had
    cell phones. They talked to one another on their cell phones. And they sent
    text messages to one another on their cell phones.

[2]

In mid-May 2008, a judge of the Superior Court of Justice authorized
    police to intercept Slavko Ilics telephone calls as well as his other
    telecommunications.

[3]

From several text messages they intercepted later that same month,
    police concluded that Ilic and the respondent were about to meet in a commuter
    parking lot at Highways 6 and 401 to exchange drugs for money.

[4]

Undercover police officers watched the exchange between Ilic and the
    respondent, then followed the respondent to Toronto where they saw him turn
    over a white plastic bag to another man at a coffee shop. Arrests followed. 
    The white plastic bag contained 3 kilograms of cocaine.

[5]

The judge who presided at the respondents trial on charges of
    trafficking and possession of cocaine for the purpose of trafficking excluded
    the intercepted text messages as evidence and acquitted the respondent. The
    Crown appeals.

[6]

These reasons explain why I think the trial judge was wrong to exclude
    the intercepted text messages as evidence and why I think the respondent should
    be tried again.

THE BACKGROUND FACTS

[7]

The grounds of appeal advanced can be adequately serviced by brief
    references to the terms of the authorization, the evidence adduced on the
voir
    dire
, and the ruling of the trial judge.

The Authorization

[8]

On May 13, 2008 a judge of the Superior Court of Justice granted an
Authorization
    to Intercept Communications, Make Visual Observations and Related Orders
(the
    authorization) on the application of a specially designated agent of the
    Minister of Public Safety and Emergency Preparedness, pursuant to s. 186(1) of
    the
Criminal Code
, R.S.C. 1985, c. C-46. The authorization permitted the
    interception of private communications of named persons and the use of other
    investigative procedures including tracking devices, number recorders and video
    surveillance.

[9]

The authorization permitted the interception of all private oral and
    telecommunications of Slavko Ilic
[1]
in paragraph 2, and delineated various specific places where the interceptions
    could occur including his residence, place of business and listed vehicles, in
    paragraph 4. In addition, interceptions could be made at any other place,
    stationary or mobile that there are reasonable grounds to believe is being, or
    will be, resorted to or used by Ilic.

[10]

The
    order authorized the interception of Ilics
[2]
communications when made over listed mobile telephones and additional devices
    as described in paragraph 5 under the heading Devices Used by Persons. The
    Other Terms and Conditions of the authorization set out requirements for live
    monitoring under 6c, but excluded non-oral telecommunications from those
    requirements under 6e. The paragraphs 5c, 6c, and 6e, are of significance to
    the issues raised on appeal and their precise terms are set out in The Grounds
    of Appeal section of this judgment.

The
Voir Dire

[11]

At
    trial, counsel for the respondent (who is also counsel on the appeal)
    challenged the admissibility of the intercepted text messages. To expedite
    matters, the trial judge and counsel agreed to combine the admissibility
    hearing and trial, and the respondent called the supervisor of the
    investigation, Corporal Rupert Wilson, to give evidence about the interceptions
    proposed for admission.

[12]

Cpl.
    Wilson gave evidence that investigators received information on May 21, 2008,
    from a confidential source of another police force, that Slavko Ilic was using
    a mobile telephone with the number (226) 220-6845. Two days later, surveillance
    officers saw Ilic and his son in a car. Ilic drove onto a parking lot by a
    movie theatre in Kitchener and began to clean out his car. He threw a plastic
    bag into an open garbage container, then sat on the steps outside the theatre
    apparently awaiting the arrival of others. His son stayed in the car. A few
    minutes later, Ilics ex-wife and daughter arrived.  All four entered the
    theatre.

[13]

Cpl.
    Wilson kept constant watch on the garbage container and the bag Ilic had
    dropped there. No one added or took out anything out of the container before
    officers seized the bag. Inside the bag, police found a piece of paper torn
    into several smaller pieces.  They re-assembled the pieces into a single page.
    On the paper were the telephone number (226) 220-6845 and instructions about
    operating the telephone and purchasing additional air time. Police began
    interception of communications on this telephone.

[14]

Cpl.
    Wilson explained that no one was assigned the responsibility of determining who
    had the telephone when text messages were sent to or from it.  He was unaware
    of how such monitoring could be accomplished. He did point out, however, that
    physical surveillance on many occasions confirmed meetings involving Ilic in
    accordance with the messages sent on the telephone.

[15]

Telephone
    calls involving the number (226) 220-6845 were live monitored to ensure that
    Ilic was a party to the call.

The Ruling of the Trial Judge

[16]

At
    the conclusion of argument on the
voir dire
, the trial judge ruled
    that the text messages had not been intercepted in accordance with the terms of
    the authorization. The judge was satisfied that investigators had reasonable
    grounds to believe that Ilic used telephone number (226) 220-6845. For text
    messages, the judge concluded, the order required certainty about Ilics actual
    use at the time of the interceptions. In the absence of any attempt to ensure
    Ilic was the author of the intercepted messages, the search was unreasonable
    and the messages inadmissible under s. 24(2) of the
Canadian
Charter of
    Rights and Freedoms
.

THE GROUNDS OF APPEAL

[17]

The
    Crown advances two grounds of appeal. The first is that the trial judge erred
    in law in his interpretation of the relevant terms of the authorization. As a
    consequence, the judge wrongly concluded that the interceptions of the text
    messages had not been made in accordance with the authorization and that the
    search was unreasonable under s. 8 of the
Charter
. The second is that
    the trial judge erred in excluding the intercepted text messages as evidence
    under s. 24(2) of the
Charter
, even if the interceptions offended
    s. 8.

Ground #1: The Interpretation of
    the Authorization

[18]

Earlier
    paragraphs have set out the background essential for a consideration and
    determination of this ground of appeal.  For ease of reference I will set out
    the precise terms of the authorization and conclusion of the trial judge before
    turning to the arguments raised, the principles that govern, and the
    application of those principles to the circumstances of this case.

The Authorization

[19]

The
    authorization permits interceptions in accordance with its several terms and
    conditions. Paragraph 3 describes the persons whose private communications may
    be intercepted. These persons include Slavko Ilic as the Principal Known
    Person, seven others as Other Known Persons, and a third category, Unknown
    Persons described as the following:

Any other person intercepted or observed at any of the places
    listed in paragraph 4 or intercepted over any device listed in paragraph 5.

[20]

In
    paragraph 5, the authorization lists and describes various devices and permits
    the interception of communications of anyone listed or described in paragraph
    3, thus both knowns and unknowns, when the communications are made over those
    devices.  The devices included are defined as follows:

5.       The communications of the persons in paragraph 3 may
    also be intercepted when made over:



c.       any other device used
    to make a telecommunication, including mobile telephones, pages, or devices,
    believed on reasonable grounds to be used by the person in paragraph
3a and
    while being used by one of the persons named in 3a or 3b
. [Added in
    handwriting by authorizing judge.]

[21]

Paragraph
    6 of the authorization, headed Other Terms and Conditions, contains terms that
    relate to interceptions at the Business Places listed and Other Places
    described in paragraph 4 of the order and to interception of non-oral
    telecommunications. Paragraphs 6c and 6e are in these terms:

c.       Interception at the Business Places and Other Places
    in paragraph 4 shall be live monitored and, where practicable, be accompanied
    by live visual surveillance and be discontinued once it has been determined
    that the person in paragraph 3a (Slavko Ilic) is not a party to it. However,
    interception may be resumed at reasonable intervals to determine whether Slavko
    Ilic has become a party to the communication.  If so, then the interception may
    continue.



e.       The interception of non-oral telecommunications,
    including pagers, faxes, electronic mail, modem, and internet communications,
    is not subject to the live visual surveillance, or live monitoring.

The Ruling of the Trial Judge

[22]

The
    trial judge concluded his ruling on the interception of the text messages in
    these terms:

I have taken into careful consideration the arguments of the
    Crown that the ease with which cell phones can be purchased and their telephone
    numbers switched makes living up to the term imposed by Her Honour potentially
    impractical. Nonetheless that is what she wrote. She no doubt had in mind the
    advances of technology when she did so as well as the case law as it has
    developed. I disagree with the Crowns assertion that this interpretation flies
    in the face of the balance of the authorization.

I find that the interceptions in question were not done in
    compliance with the authorization. As such there was a violation of the
Charter
    of Rights
and we shall now proceed to determine whether the evidence that
    flows from that breach ought to be excluded. Counsel?

The Arguments on Appeal

[23]

For
    the appellant Crown, Mr. Wilson says that the ruling of the trial judge amounts
    to a determination that, although the police had a general authority to
    intercept communications from Ilics phone, they could only intercept text
    communications from that phone if they were
certain
that Ilic was the
    person sending the message they were intercepting. This standard of certainty
    has the effect of eliminating the interception of text messages, despite other authorization
    terms that expressly permit it.

[24]

Mr.
    Wilson contends that the authorization must be read as a whole and in a way
    that gives a common sense meaning to all its terms. Paragraph 6e of the authorization
    refers to non-oral telecommunications and excludes from their interception any
    requirement of live monitoring or live visual surveillance that would generally
    apply under paragraph 6c. Removal of this less onerous requirement is
    inconsistent with the imposition of a standard that far exceeds the
    constitutional norm settled by
R. v. Thompson
, [1990] 2 S.C.R. 1111.

[25]

In
    Mr. Wilsons submission the reading of paragraph 5c that is most consistent
    with the authorization as a whole is that the interceptions may be made if the
    investigators reasonably believe that the cell phone is being used by Ilic in
    some general sense, and that at the time of the interception either Ilic or
    another person in paragraph 3b of the authorization is using the device.

[26]

For
    the respondent, Mr. Marentette says that the trial judge properly interpreted
    the requirements of paragraph 5c. The judges reading of the clause was
    grammatically correct, compatible with the balance of the authorization, and
    the only sensible interpretation that the restrictions imposed could reasonably
    support. The conditions were imposed under s. 186(4)(d) of the
Criminal
    Code
to prevent unjustified intrusions into the privacy interests of
    innocent persons.  Paragraph 5c makes no reference to reasonable belief,
    rather it imposes a more stringent standard as the authorizing judge was
    entitled to find.

[27]

Mr.
    Marentette contends that the trial record is barren of any evidence to support
    the claim that the trial judges interpretation of paragraph 5c rendered
    interceptions of text messages impossible despite their authorization under the
    order. And even if the trial judges interpretation had such an effect, the
    restriction was one that the authorizing judge was entitled to impose under
    s. 186(4)(d). Investigators could have sought specific authorization to
    permit these interceptions but chose not to do so.

The Governing Principles

[28]

In
    the end, this ground of appeal reduces to the interpretation of the terms of
    the enabling authorization. To be more specific, the issue is whether this authorization
    permitted interception of the text messages sent from or received by telephone
    number (226) 220-6845 absent evidence that their author or recipient was Ilic.
    To determine that issue, it is helpful to return to some basic principles.

[29]

To
    take first the obvious. The interception of private communications constitutes
    a search or seizure, thus is subject to the requirement of reasonableness
    imposed by s. 8 of the
Charter
:
R. v. Duarte
, [1990] 1 S.C.R.
    30.  A search or seizure is reasonable if it is authorized by a law that is
    itself reasonable and is carried out in a reasonable manner:
R. v. Collins
,
    [1987] 1 S.C.R. 265, at p. 278.

[30]

Second,
    to be carried out in a reasonable manner pursuant to a conventional
    authorization issued under s. 186(1) of the
Criminal Code
, the
    interception of private communications must be carried out
in accordance
    with
the terms of a valid authorization, as required by s. 184(2)(b).
[3]

[31]

Third,
    s. 186(4) of the
Criminal Code
prescribes the content and limitations
    of a conventional authorization. Among other things, the authorization must
    generally describe the place of interception, if a general description of that
    place can be given, and generally describe the manner of interception:
Criminal
    Code
, s .186(4)(c).

[32]

Fourth,
    the authorizing judge has a discretion, but not an obligation, to include terms
    and conditions in the authorization. This discretion, for which s. 186(4)(d)
    provides, becomes engaged if and to the extent that the authorizing judge
    considers that terms and conditions are advisable in the public interest.

[33]

Fifth,
    among the terms and conditions a judge may include in an authorization as
    advisable in the public interest are terms and conditions the purpose of which is
    to curtail the interception of the private communications in which designated
    targets do not participate, but rather are made by innocent third parties.
    These terms and conditions are often described as minimization clauses. Unlike §2518(5)
    of its American equivalent, Title III of the
Omnibus Crime Control and Safe
    Streets Act of 1968
, 18 U.S.C.A. §§2510-2520, Part VI of the
Criminal
    Code
and, in particular, s. 186(4), does not make minimization a mandatory
    term of every authorization:
[4]

R. v. Finlay
(1985), 52 O.R. (2d) 632 (C.A.), at pp. 658-660;
Thompson
,
    at pp. 1130-1132, and 1137-1138.

[34]

Minimization
    clauses may take different forms. Some are linked to the places at which the
    communications to be intercepted take place. Interception of communications
    originating from or received at pay telephones, for example, may require live
    visual surveillance and live monitoring to confine interceptions to specified
    individuals. Other minimization clauses have to do with the nature of the
    device used in the communications or the manner in which interceptions are to
    be carried out.

[35]

The
    power to impose minimization clauses is discretionary: however the failure to
    include such a term may result in an authorization that is unreasonable:
Thompson
,
    at pp. 1145-1146.

[36]

Sixth,
    some authorizations permit interception of private communications that emanate
    from or are directed to places to which targets resort, at which they
    attend, or that they use for communication purposes. The contents of the
    intercepted private communications tendered for admission cannot themselves
    establish that the target resorted to, attended at, or used the place or
    device for communication purposes. Extrinsic evidence is required and must be
    adequate to establish an investigative belief, based on reasonable and probable
    grounds, that the person will resort to, attend at, or use the location
    or device depending on the language of the authorization:
Thompson
, at
    pp. 1140-1141.

[37]

The
    nature of the communications to be intercepted may also be important in the
    inclusion and construction of minimization terms. Some minimization terms, such
    as those that require visual surveillance or live monitoring may be invoked
    prior to or contemporaneous with the interception process. Others may permit after-the-fact
    minimization, or require it for efficacy.

[38]

Section
    2518(5) of Title III, for example, allows minimization to be accomplished as
    soon as practicable after such interception where the intercepted
    communications are in a code or foreign language and an expert in that code or
    foreign language is not readily available during the interception period.

[39]

Under
    Title III, text messages fall within the definition of electronic
    communication in §2510(12). They are subject to the minimization requirement
    of §2518(5), but Title III does not prescribe how minimization is to be
    accomplished. United States courts and law enforcement agencies recognize that
    traditional minimization techniques, like live monitoring or contemporaneous
    live visual surveillance, will not work with many forms of electronic
    communications. Section 29 of the
United States Attorneys Criminal
    Resource Manual
, which guides US Attorneys on the requirements of a Title
    III affidavit, advises attorneys that the affidavit must contain a statement
    that monitoring agents will minimize all non-pertinent interceptions and
    address any specific minimization problems: U.S. Dept of Justice,
United
    States Attorneys Criminal Resource Manual
§ 29 (1998). For electronic
    communications, the communications are recorded, subjected to after-the-fact
    minimization, and their disclosure limited to communications by the subject or
    their confederates that are criminal in nature: see, for example,
United
    States v. Tutino
, 883 F. 2d 1125 (2d Cir. 1989)
cert denied
493
    U.S. 1081 (1990).

[40]

Authorizations
    granted under s. 186 of the
Criminal Code
permit investigators to do
    things, to intercept private communications, that would be a crime in the
    absence of the order. Among other things, an authorization defines the extent
    to which the privacy of various persons may be invaded, where the invasions may
    occur, and how the invasions may be carried out. An authorization is, in
    effect, an interception licence.

[41]

To
    determine whether an authorization permits certain interceptions to be made, or
    to determine after the fact whether the interceptions have been made in
    accordance with an authorization, requires an examination not only of the
    specific words, phrases and clauses in the order, but also the order as a
    whole.  Interpretations that yield absurd results, impose requirements that
    effectively neuter permissible interceptional activity, or ignore related terms
    in the order should be avoided.

The Principles Applied

[42]

For
    reasons that follow, I would give effect to this ground of appeal and order a
    new trial.

[43]

Paragraph
    2 of the authorization, entitled Types of Communications and Observations,
    permitted the interception of telecommunications. The term
    telecommunication appears in the exhaustive definition of private
    communication in s. 183 of the
Criminal Code
, but telecommunication
    is not itself defined in, or for the purposes of, Part VI.
[5]
The parties agree that the term telecommunications as used in the authorization
    includes text messages.

[44]

The
    interceptional authority paragraph 2 provides in connection with
    telecommunications is unrestricted.  It makes no reference to the persons whose
    telecommunications may be intercepted or where or how the interceptions are to
    be carried out. Thus, it becomes necessary to review the balance of the authorization
    to determine under what circumstances telecommunications may be intercepted.

[45]

Two
    paragraphs of the authorization deal specifically with the interception of
    telecommunications: paragraph 5c and paragraph 6e.

[46]

Paragraph
    5c appears under the heading Devices Used By Persons:

5.       The communications of the persons in paragraph 3 may
    also be intercepted when made over:



c.       any other device used to make a telecommunication,
    including mobile telephones, pages, or devices, believed on reasonable grounds
    to be used by the person in paragraph
3a and while being used by one of the
    persons named in 3a or 3b
. [Emphasis added.]

[47]

The
    introductory words in paragraph 5 refer to communications, a term that would
    include both oral and telecommunications. Paragraph 5c is more specific. It
    applies only to any other device used to make a telecommunication, including
    but not only several kinds of devices described in the rest of the paragraph.
    The reference to a telecommunication does not distinguish between oral
    communications, such as telephone calls, and non-oral telecommunications, such
    as text messages.

[48]

Paragraph
    6e appears under the heading Other Terms and Conditions:

6.       It is further ordered that:



e.       The interception of
non-oral telecommunications
,
    including pagers, faxes, electronic mail, modem, and internet communications,
    is not subject to the live visual surveillance, or live monitoring. [Emphasis
    added.]

[49]

Unlike
    paragraph 5c, which refers to a telecommunication, thus to both oral and
    non-oral telecommunications, paragraph 6e is more specific: it deals only with
    non-oral telecommunications. Paragraph 6e makes it clear that neither of the
    usual minimization techniques, live visual surveillance and live monitoring,
    are required for the interception of non-oral telecommunications.

[50]

The
    effect of the trial judges interpretation of paragraph 5c of the authorization
    is to require that monitors be
certain
that Slavko Ilic was using
    telephone (226) 220-6845 to send a text message before that message could be
    intercepted.  Several reasons persuade me that this interpretation is wrong.

[51]

First,
    the construction adopted by the trial judge achieves an unworkable result. The authorization
    permits interception of telecommunications, both oral and non-oral
    telecommunications. For oral telecommunications, like telephone calls,
    minimization can be achieved by live monitoring, live visual surveillance, or
    both. Text messages, however, do not contain a human voice.  There is no live
    to monitor. Neither is live visual surveillance a viable means of ensuring
    authorship of a particular text message. Practically speaking, the surveiller
    would need to be standing immediately next to the target, then somehow relay
    the targets activity to monitors.

[52]

Second,
    the interpretation of the trial judge is inconsistent with the terms of the authorization
    as a whole and the purpose underlying this investigative technique.

[53]

The
    authorizing judge, satisfied that the conditions precedent of s. 186(1) had
    been met, granted the authorization to intercept the private communications of
    Slavko Ilic. She authorized investigators in paragraph 2 of the order to intercept
    not only Ilics oral communications, but also his telecommunications.  In other
    words, what he said and what he wrote could be captured for its potential
    evidentiary value in connection with the investigation of various listed
    offences.  The judge set out the terms in accordance with which the
    interceptions could be made.

[54]

The
    authorizing judge was satisfied that Ilic might use mobile telephones, other
    than those specifically listed, to make a telecommunication. It is a
    reasonable inference that the authorizing judge knew that mobile telephones
    could be used not only to make telephone calls, but also to send text
    messages.  To ensure that these mobile telephones were used by Ilic, the judge
    imposed some conditions in paragraph 5c, but did not distinguish between oral
    and non-oral telecommunications in the applicability of these conditions.

[55]

In
    another part of the authorization, however, the authorizing judge made specific
    reference to non-oral telecommunications. She made it clear that they could be
    intercepted without either live monitoring or live visual surveillance. As a
    consequence, any interpretation of paragraph 5c had to accord with the specific
    language of paragraph 6e in connection with the interception of non-oral
    telecommunications such as text messages. The trial judges interpretation
    denies paragraph 6e any influence.

[56]

Third,
    the standard of evidence required by the trial judge as a precondition to
    interception of text messages at once exceeds the constitutional norm set by
Thompson
and imposes different standards for interceptions involving the same device
    depending on the medium chosen for conveyance of the message.  Such a
    distinction is unwarranted and unsupportable in principle.

[57]

In
    my respectful view, the trial judge erred in his construction of the enabling authorization
    in relation to the text messages tendered for admission.  The correct
    interpretation of paragraph 5c, consistent with the terms of the authorization
    as a whole, is that the interception of text messages was authorized if investigators
    reasonably believed that Ilic was using the cell phone as a means of
    communication and that, at the time of the interception, either Ilic or another
    person described in paragraph 3b of the authorization, was using the cell
    phone.

[58]

The
    error in construction of the authorization led the trial judge to conclude that
    the interceptions were not made in accordance with the authorization, thus
    offended s. 8 of the
Charter
and should be excluded under s. 24(2).

[59]

For
    the reasons I have given, I am satisfied that the interceptions of the text
    messages did not offend s. 8 of the
Charter
. In the circumstances, it
    is unnecessary for me to consider the correctness of the trial judges decision
    to exclude the intercepted text messages as evidence under s. 24(2) of the
Charter
. 
    In the absence of a constitutional infringement, s. 24(2) is not engaged.

CONCLUSION

[60]

In
    the result, I would allow the appeal, set aside the acquittals and order a new
    trial on the indictment.

Released:
October 10, 2012 JL

David
    Watt J.A.

I
    agree Winkler C.J.O.

I
    agree John Laskin J.A.





[1]
Ilic is described as the Principal Known Person in the
    authorization.



[2]
As well as persons who fell within the Unknown Persons clause in
    paragraph 3c of the authorization.



[3]
This exempts the interceptions from criminal liability under that
    section.



[4]
Sections 186(2) and (3) require minimization clauses to protect
    solicitor-client communications against interception.



[5]
Section 326(2) of the
Criminal Code
defines telecommunication
    for the purposes of the offences created by ss. 326(1) and 327(1).  This
    statutory definition approximates the ordinary meaning and provides a
    serviceable benchmark for Part VI.


