



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lucas, 2014 ONCA 561

DATE: 20140723

DOCKET: C51429, C51469, C51526, C51606 and C52075

Rosenberg, Goudge and van Rensburg JJ.A.

BETWEEN

C51429

Her Majesty the Queen

Respondent

and

Steven Lucas

Appellant

C51469

Her Majesty the Queen

Respondent

and

Vinh Ban Chau

Appellant

C51526

Her Majesty the Queen

Respondent

and

Ryan Coyle

Appellant

C51606

Her Majesty the Queen

Respondent

and

Stefan Rosa

Appellant

C52075

Her Majesty the Queen

Respondent

and

Jose Alvarez

Appellant

Joseph Wilkinson, for the appellant, Steven Lucas

Michael Dineen, for the appellant, Vinh Ban Chau

P. Andras Schreck, for the appellant, Ryan Coyle

Michael W. Lacy, for the appellant, Stefan Rosa

Richard Adam Fedorowicz, for the appellant, Jose Alvarez

John McInnes, Frank Au and Karen Papadopoulos, for the
    respondent

Heard: December 16, 17, 18, 19, 2013

On appeal from the convictions entered on December 8,
    2009 by Justice Ian V.B. Nordheimer of the Superior Court of Justice, sitting with
    a jury; and on appeal from the convictions entered on June 16, 2009 by Justice
    Anne M. Molloy of the Superior Court of Justice, sitting without a jury.

By The Court:

INTRODUCTION

[1]

The
    appellants, Steven Lucas, Stefan Rosa, Ryan Coyle and Vinh Ban Chau appeal from
    their convictions by a court composed of Nordheimer J. and a jury on charges of
    conspiracy to traffic in cocaine and possession of the proceeds of crime. Lucas
    and Rosa were also convicted on two counts of possessing a prohibited firearm
    with readily accessible ammunition and two counts of possessing a prohibited
    firearm.

[2]

The
    appellant, Jose Alvarez, appeals from his convictions by Molloy J., sitting
    without a jury, on various drug and firearms-related charges, among other
    charges.

[3]

A
    great deal of the evidence against the appellants was obtained during
    interception of private communications, physical surveillance and surreptitious
    entry into premises pursuant to general warrants. For the following reasons,
    the appeals are dismissed.

THE FACTS

[4]

Many
    of the grounds of appeal raised by the appellants concern questions of law
    arising out of the interception of private communications and evidence obtained
    during execution of the general warrants. Where necessary, we have set out the
    facts as they relate to the individual grounds of appeal.

[5]

As
    an overview, the charges against the appellants arose out of an extensive police
    investigation labelled Project XXX into the Doomstown Crips (also known as the
    Doomztown Crips or Jamestown Crips). The Doomstown Crips was an alleged
    criminal gang operating in the Rexdale neighbourhood of the City of Toronto.
    The four appellants, Lucas, Rosa, Coyle and Chau, were alleged to be
    distributing drugs and firearms to the Doomstown Crips. They were not suspected
    of being gang members.  The appellant Alvarez was alleged to be a member of the
    Doomstown Crips.

[6]

The
    Project XXX investigation began in November 2005. Lucas was the initial
    suspect. He was implicated by a gun smuggler from the United States, Earl
    Cooke, who identified Lucas as someone who had purchased 110 firearms from him
    between October 2002 and October 2003. By 2006, the police had only recovered 20
    of the firearms. Nine of these recovered guns were linked, directly or
    indirectly, to the Doomstown Crips.

[7]

The
    appellants Rosa, Coyle and Chau were targeted for investigation because of
    their association with Lucas. Police surveillance in January 2006 revealed Lucas
    leaving Rosas residence with a knapsack containing three pipe-shaped objects
    the police believed to be firearms.

[8]

On
    February 13, 2006, police obtained a wiretap authorization under s. 186(1.1) of
    Part VI of the
Criminal Code
to intercept private communications of a
    large number of people including the appellants, Lucas and Alvarez. The
    authorization was issued by Echlin J.

[9]

In
    support of the February 13, 2006 Part VI wiretap authorization, the police
    filed an Information to Obtain (ITO), sworn by Detective Vander Heyden, which
    consists of more than 1000 pages plus lengthy appendices. Included in the ITO
    was information that the police obtained from two confidential informants. On
    March 31, 2006, the initial Part VI authorization was extended in time and
    expanded in scope.

[10]

In addition to
    the wiretap authorizations, the police also obtained three general warrants
    pursuant to s. 487.01 of the
Criminal Code
. The general warrants were issued
    on February 16 and 24, 2006 by Taylor J. and on March 31, 2006 as part of the Part
    VI authorization issued by Echlin J.

[11]

The February 16 general
    warrant authorized covert entry into 20 residences and eight motor vehicles.
    Among other things, the officers were authorized to copy documents, photograph
    or seize weapons and controlled substances, examine or record data contained in
    cellular telephones and covertly retrieve keys. The February 16 warrant was
    used to search Lucas vehicle on March 21, 2006 and his residence on March 25. It
    was also used to search Coyles residence on March 22, during which police
    observed, but did not seize, a significant quantity of U.S. and Canadian cash.

[12]

The February 24 general
    warrant authorized the police to enter a storage locker at a public storage
    site at 389 Paris Road in Brantford. The search of the locker, conducted on
    February 25, 2006, revealed that it contained guns, ammunition, drugs, and a
    box containing 1 kg of cocaine. The box had a label with Coyles home address
    on it.

[13]

The March 31
    general warrant was embedded in the wiretap authorization issued by Echlin J.
    It authorized the surreptitious entry of a large number of places and vehicles
    belonging to the appellants or persons associated with them. The March 31
    warrant was used to search Lucas residence on April 29. The police also
    executed the general warrant on Coyles residence on April 8 and seized
    approximately $64,000 in cash, a money counter, and other items.

[14]

Chaus vehicle
    was searched without a warrant on May 16, 2006. During this search the police seized
    a laptop bag containing $17,000 in cash.

[15]

Arrest and
    search warrants were executed on May 18, 2006 (the take-down warrants). The take-down
    warrants authorized the police to enter the premises of a large number of
    individuals, including the appellants, without knocking or giving notice to the
    occupants, in order to effect the arrests of the individuals named in the
    warrants and to search the premises. Pursuant to the take-down warrants, the
    police arrested 102 persons, including the five appellants, in the early
    morning hours during dynamic no-knock entries.

[16]

During the
    search of Coyles residence, police found $20,000 in cash and marijuana. During
    the search of Chaus residence, the police found $6,195 cash in the possession
    of another male, a safe containing $2,000 in cash, a money counter, several cell
    phones, and a document believed to be a debt list. During the search of Rosas
    residence, police seized $3530 and US$450, a money counter, and numerous cell
    phones. Rosa also had $1,000 on his person when he was arrested. The search of Lucas
    residence revealed numerous cell phones, a money counter, and a hollowed-out
    book that had been seen to contain cash during a covert entry into his
    residence on March 25.

[17]

Lucas, Rosa,
    Coyle and Chau were charged with various firearms and/or drug-related offences
    on a 29-count indictment. Alvarez was charged together with six co-accused on a
    126-count indictment.

PRE-TRIAL MOTIONS

(a)

R. v. Lucas et al.

[18]

The proceedings
    against Lucas, Rosa, Coyle and Chau prompted a number of pre-trial motions, the
    outcomes of which are in issue on this appeal.

[19]

On December 1,
    2008, Ewaschuk J. heard a motion for disclosure of the edited portions of the
    ITO sworn by Detective Constable Vander Heyden in support of the February 13,
    2006 Part VI wiretap authorization, as well as an application for disclosure of
    police notes and confidential informer files. This motion was brought in
    anticipation of defence challenges to the wiretap authorizations.

[20]

At the hearing,
    defence counsel learned that, a few days prior, Ewaschuk J. had heard an
ex
    parte
,
in camera voir dire
concerning the Crowns claim of
    informer privilege in relation to two individuals who gave evidence referred to
    in the ITO. Defence counsel asked Ewaschuk J. to recuse himself from the
    proceedings on the basis that the court had no jurisdiction to hear an
    application that was part of the trial in their absence.  Justice Ewaschuk
    dismissed the recusal motion and went on to deal with the editing motion.

[21]

On April 14,
    2009, the trial judge, Nordheimer J. heard an application by the appellants,
    Lucas, Rosa, Coyle, Chau and two other accused, challenging the constitutional
    validity of s. 186(1.1) of the
Criminal Code
.  The trial judge ruled
    that the provision is constitutionally valid and dismissed the application: 
    see [2009] O.J. No. 2250.

[22]

Also in April
    2009, the trial judge heard an application under s. 8 of the
Charter
by
    these same accused challenging the February 13 and March 31, 2006 authorizations
    to intercept their private communications based on the test established by the
    Supreme Court of Canada in
R. v. Garofoli
, [1990] 2 S.C.R. 1421 (
Garofoli
application).  The trial judge found that the wiretap authorizations did not
    breach s. 8 and dismissed the
Garofoli
application: see [2009] O.J.
    No. 2252.

[23]

In June 2009,
    the trial judge heard an application by the same accused advancing a
    three-pronged attack on the general warrants issued under s. 487.01 of the
Criminal
    Code
.  First, the applicants challenged the constitutionality of s. 487.01
    of the
Criminal Code
. Second, the applicants argued that the wording of
    the general warrants improperly delegated to police the authorizing judges
    role of assessing if reasonable and probable grounds existed. Finally, the
    applicants contended that it was not in the best interests of the
    administration of justice to grant the warrants. The trial judge rejected all
    three prongs of the challenge to the general warrants: see [2009] O.J. No.
    3145.

[24]

Also in June
    2009, the appellants brought an application to exclude evidence that police had
    obtained in three covert searches of Lucas residence and vehicle. The searches
    were executed based on the authority of the February 16 and March 31, 2006
    general warrants.  The trial judge concluded that the three searches were valid
    under the general warrants and dismissed the application: see [2009] O.J. No.
    3420.

[25]

Finally, in
    July and continuing in September 2009, the trial judge heard applications by
    the same individuals to exclude evidence obtained during searches pursuant to
    the take-down warrants executed on May 18, 2006.  The execution of three of the
    take-down warrants was challenged on the following bases: (i) the search
    warrants were invalid because they failed to specifically name the police
    officers who were authorized to search; (ii) there was insufficient foundation
    for dispensing with the knock and notice requirements for executing the
    warrants; and (iii) the police should have had a so-called 
Feeney

    warrant to arrest the applicants.  The trial judge rejected each of these
    objections and dismissed the application:  see [2009] O.J. No. 5333.


(b)

R. v. Alvarez

[26]

The appellant
    Alvarez participated in the motion before Ewaschuk J. related to the disclosure
    of the redacted portions of the ITO and other material filed in support of the February
    13, 2006 Part VI wiretap authorization.

[27]

In April 2009, the
    trial judge, Molloy J. heard a
Garofoli
application by Alvarez and
    four of his co-accused seeking to exclude the evidence seized as a result of
    the initial February 13, 2006 Part VI wiretap authorization.  Justice Molloy
    concluded that there was a reasonable basis upon which the authorization could
    have issued and dismissed the application: see 2009 CanLII 48828 (Ont. S.C.).

TRIALS

[28]

Lucas, Rosa,
    Coyle and Chau were tried together by Nordheimer J. and a jury. After a trial lasting
    almost three months, the four accused were convicted of conspiracy and proceeds
    of crime charges.  Lucas and Rosa were convicted of a number of firearms
    offences.  Lucas also had been charged with 19 counts of trafficking in
    firearms. These charges depended on the evidence of Earl Cooke. Lucas was
    acquitted on all of these charges, suggesting that the jury did not accept
    Cookes evidence.

[29]

Alvarez was tried
    separately by Molloy J., without a jury. The Crowns case was read into the
    record. Alvarez called no evidence in his defence. He was convicted of the
    offences of conspiracy to traffic marijuana, trafficking in cocaine, conspiracy
    to traffic in a firearm, trafficking in cocaine in association with a criminal
    organization, possession of a loaded firearm, possession of property obtained
    by crime, failing to comply with recognizance, and possession of a loaded
    firearm while bound by a section 109 order.

[30]

We will set out
    more of the facts as they become relevant to the various grounds of appeal.

ISSUES

[31]

The five appellants
    advance 18 grounds of appeal, both in common and individually. The five
    appellants jointly rely on three grounds of appeal raising the following issues:

1. Did the application
    judge, Ewaschuk J., err in conducting an
ex parte
,
in camera
hearing in respect of the Crowns assertion of informer privilege over portions
    of the ITO submitted in support of the February 13, 2006 Part VI wiretap
    authorization?

2. Is s. 186(1.1) of
    the
Criminal Code
, which permits an authorization to intercept private
    communications without the need to establish investigative necessity, 
    unconstitutional as violating s. 8 of the
Charter
?

3.
Is s. 487.01 of the
Criminal Code
,
    the general warrant provision, unconstitutional as violating s. 8 of the
Charter
?

[32]

The appellants
    Lucas, Rosa, Coyle and Chau raise the following issues related to the February
    13, 2006 Part VI wiretap authorization:

4. Did the trial
    judge err in failing to find that the authorization was invalid when it did not
    identify a past or current offence in respect of which the authorization could
    have issued?

5. Did the trial
    judge err in refusing to permit cross-examination of the affiant of the Part VI
    ITO?

[33]

The appellant
    Alvarez raises the following additional issues concerning the Part VI
    authorization:

6.Did the trial
    judge, Molloy J., err by not excising certain information contained in the ITO
    filed in support of the Part VI authorization?

7. Did the trial
    judge err in concluding that there were reasonable grounds to believe a
    specified offence had been or was being committed?

8. Did the trial
    judge err in concluding that the appellant Alvarez was properly named as a
    known person in the affidavit?

[34]

The appellants,
    Lucas, Coyle and Chau raise the following issues related to the general
    warrants:

9. Did the trial
    judge err in failing to find that the February 16 and March 31, 2006 general
    warrants were invalid because they amounted to an impermissible delegation of
    the judges discretion?

10. Did the trial
    judge err in failing to find that the general warrants of February 16 and March
    31 were invalid as being contrary to the best interests of the administration
    of justice?

11.  Did the trial
    judge err in failing to find that the search of the locker under the February
    24 warrant was unreasonable and violated s. 8 of the
Charter
?

[35]

The appellant
    Rosa separately raises the following issue concerning the reasonableness of the
    following verdicts against him:

12. Are the verdicts
    in respect of the possession of firearms and ammunition found in the storage
    locker unreasonable?

[36]

The appellant
    Coyle raises the following issue concerning the trial judges instructions to
    the jury concerning a box seized from the storage locker:

13. Did the trial
    judge err in his instructions to the jury regarding the admission and/or use
    the jury could make of the box seized from the locker against the appellant
    Coyle?

[37]

The appellant
    Lucas raises the following additional issue related to the execution of the general
    warrants:

14.  Did the trial
    judge err in failing to find that the searches of Lucas car and home on March
    21, March 25 and April 29 2006 were unreasonable?

[38]

The appellant
    Chau separately raises the following issue concerning the warrantless search of
    his vehicle:

15. Did the trial
    judge err by admitting evidence seized in an unreasonable search of Chaus
    vehicle pursuant to s. 24(2) of the
Charter
?

[39]

The appellants
    Lucas, Rosa and Chau jointly raise the following issue concerning the take-down
    warrants:

16. Did the trial
    judge err in failing to find that the removal of the knock and notice
    requirements in the take-down warrants violated the appellants s. 8
Charter
rights?

[40]

In addition, the
    appellant Chau raises the following issue concerning the execution of the take-down
    warrant:

17. Did the trial
    judge err by finding that the dynamic entry search of Chaus residence was
    reasonable and by failing to exclude the evidence seized during the search?

[41]

And, finally, the
    appellant Coyle raises the following issue concerning the admission of expert
    evidence:

18. Did the trial
    judge err by allowing the Crowns expert witness to comment in his evidence in
    chief on a hypothetical conversation?

[42]

We will now
    provide our reasons for dismissing each of these grounds of appeal.

DISCUSSION

(1)

Did the application judge err in conducting an
ex parte
,
in
    camera
hearing in relation to establishing informer privilege?

[43]

The appellants
    brought a pretrial motion for disclosure of the edited portions of the ITO
    sworn by D.C. Vander Heyden in support of the February 13, 2006 Part VI wiretap
    authorization, as well as an application for disclosure of police notes and
    confidential informer files in anticipation of their
Garofoli
application.
    The Crown justified many of the edits in the ITO on the basis of informer
    privilege. The motion and application were heard by Ewaschuk J. commencing on
    December 1, 2008 (the editing hearing).

[44]

At the start of
    the editing hearing, the appellants became aware that only a few days earlier
    (November 27, 2008), the Crown had attended before Ewaschuk J.
in camera
and
ex parte
for the purpose of establishing the applicability of the
    informer privilege. At that hearing, the Crown sought to confirm the status as
    confidential informers of two individuals whose information was relied on in
    the ITO. To this end, the Crown called the individuals police handlers,
    Detective Constables Beausoleil and Caracciolo. After hearing evidence from the
    police handlers and submissions from the Crown, the application judge
    determined that the individuals in question were
prima facie
confidential
    informants, and that their identities needed to be protected.

[45]

Upon learning of
    the earlier
ex parte
hearing, the appellants applied for an order that
    the application judge recuse himself because of a reasonable apprehension of
    bias arising from the fact that he had acted without jurisdiction in conducting
    the
in camera
,
ex parte
hearing.

[46]

The application
    for recusal was dismissed. The application judge ruled that the
ex parte
hearing constituted part of the trial at which the appellants had a
prima
    facie
right to be present, but that the exclusion of the appellants was
    consonant with the procedure outlined in
Named Person v. Vancouver Sun
,
    2007 SCC 43, [2007] 3 S.C.R. 253, to be followed where a question of informer
    privilege arises. In the course of his ruling, the application judge also noted
    that his decision respecting confidential informer status was subject to
    review, stating:

At the conclusion of the hearing, I ruled that the two
    individuals were
prima facie
confidential informers.  I did so on the
    basis that their status, decided
ex parte
, could later be revisited
    during the subsequent editing process of the Information to Obtain the wiretap
    authorization, and still later on the
Garofoli
hearing as part of a s.
    8
Charter
motion.

[47]

The editing
    hearing then proceeded before the application judge. He determined the
    applicable edits to the notes and files of the confidential informants
    handlers, to the ITO, and to a transcript of the prior
ex parte
hearing into the status of the two individuals. In considering the scope of the
    appropriate edits to the transcript, the application judge made it clear that
    the only criterion for the edits was the redaction of information that might
    reveal the identity of the confidential informants. He rejected a number of
    proposed Crown edits on this basis, including with respect to the revelation of
    police investigative techniques and the mode of communication with the informants.

[48]

The issue of
    whether the two individuals were confidential informants was not revisited
    during the editing hearing, and their status as confidential informers was not
    challenged during the
Garofoli
application before the trial judge, nor
    at any later stage in the proceedings.

[49]

The Supreme
    Court of Canadas decision on informer privilege in
R. v. Basi
, 2009
    SCC 52, [2009] 3 S.C.R. 389, was released during the appellants trial. After
    all the evidence at trial had been heard, the question of the propriety of the
    earlier
ex parte
hearing was raised before the trial judge. Justice Nordheimer
     dismissed the application. He concluded that the Supreme Courts clarification
    of its position on the issue did not
per se
invalidate the approach
    taken by the application judge. Rather, the question would be whether the
    application judges failure to take a different approach infringed the
    appellants rights such that the ultimate decision was not sustainable.
    Ultimately, Nordheimer J. found that it was not his role to sit on appeal from
    the pre-trial procedure followed by one of his colleagues.

Analysis

[50]

Section 650(1)
    of the
Criminal Code
provides that, subject to certain exceptions
    (that are not material here), the accused shall be present in court during the
    whole of his or her trial.  Section 650(1) protects the interest in allowing
    the accused to hear the case made out against him and, having heard it, have
    the opportunity of answering it and the interest in fairness and openness,
    which is advanced by allowing the accused the opportunity of acquiring
    first-hand knowledge of the proceedings leading to the eventual result of the
    trial:
R. v. Hertrich
(1982), 67 C.C.C. (2d) 510 (Ont. C.A.), at
    para. 81. In light of these interests, the words  the whole of his or her
    trial  in s. 650(1) should be given an expansive reading:
R. v. Barrow
,
    [1987] 2 S.C.R. 694, at para. 14. A proceeding will be characterized as a part
    of the trial for the purposes of s. 650(1) where the accuseds absence would prejudic[e]
    their opportunity of defending themselves or would violate his right to be
    present so that at all times he may have direct knowledge of anything that
    transpires in the course of his trial which could involve his vital
    interests:
R. v. Hertrich,
at para. 82.

[51]

The parties differ
    over whether the
ex parte
hearing was part of the appellants trial. The
ex parte
hearing was conducted for the sole purpose of determining
    whether the two police informants referred to in the ITO were, in fact, confidential
    informants. In our view, the procedure adopted by the application judge
    conformed to the principles outlined by the Supreme Court in
R v. Basi
.

[52]

The point of
    departure is to recognize the extent and importance of the privilege protecting
    the identity of the confidential informants. Informer privilege has been
    described as nearly absolute: see
R. v. Basi
, at para. 37;
Named
    Person
, at para. 23.  It is a class privilege, subject only to the
    innocence at stake exception and is safeguarded by a protective veil that
    will be lifted by judicial order only when the innocence of the accused is
    demonstrably at stake:
R. v. Basi
, at paras. 22, 37.

[53]

Informer
    privilege protects from revelation in court or in public any information that
    might tend to identify one who gives information related to criminal matters to
    the police in confidence. Its twin objectives are to protect the informer from
    possible retribution, and to encourage other potential informers to come
    forward. The Supreme Court has emphasized that the rationale for the informer privilege
    rule requires a privilege which is extremely broad and powerful:
Named
    Person
, at paras. 16-18, 30.

[54]

There is a
    presumption that any proceeding that might reveal the identity of an informer
    will be held
in camera.
As the Supreme Court noted in
R. v. Basi
,
    at para. 44: [w]hile the judge is determining whether the privilege applies,
    all caution must be taken on the assumption that it does apply and [n]o one
    outside the circle of privilege may access information over which the privilege
    has been claimed until a judge has determined that the privilege does not exist
    or that an exception applies:
R. v.

Basi
,

at para.
    44

[55]

The appellants
    assert that the application judge erred in relying on the
Named Person
case
    as authority for conducting an
ex parte
hearing to determine whether
    the two individuals were confidential informants. They point out that in that
    case, there was no exclusion of the accused because the proceeding at issue was
    an extradition hearing in which the accused person himself was claiming to be a
    confidential informer.

[56]

Notwithstanding
    that the person claiming informer privilege in
Named Person
was the
    accused, who was, therefore, in attendance, the logic of that case was applied
    to the question of informer privilege and
ex parte
proceedings in
R.
    v. Basi
.

[57]

In
R. v.
    Basi
, the accused had been charged with fraud and other offences. The
    defence applied to the trial judge for disclosure of unredacted copies of
    police notes and reports, which were alleged by the Crown to be subject to
    informer privilege. The Crown contended that the claim could not be properly
    established without live testimony by a police officer, and insisted on an
in
    camera
and
ex parte
hearing to determine the existence of the
    privilege. Defence counsel objected to the
ex parte
nature of the
    hearing and applied for permission to attend without the accused. The trial
    judge ruled that defence counsel could participate fully in the
in camera
hearing,
    subject to a court order and undertaking not to disclose to anyone any
    privileged information. In her ruling, the trial judge noted that the Crown
    could invoke s. 37 of the
Canada Evidence Act
, R.S.C. 1985, c. C-5
    (the 
CEA
), which permits the Crown to object to disclosure of
    information before a court on the grounds of a specified public interest.

[58]

After receiving
    the trial judges ruling, the Crown invoked s. 37 of the
CEA
. An
    application under s. 37 is a discrete proceeding separate from, and ancillary
    to, the trial of an accused and s. 650 of the
Criminal Code
has no
    application to a decision under s. 37 of the
CEA
: see
R. v. Basi
,

at para.
50;
R. v. Pilotte
(2002), 163 C.C.C.
    (3d) 225 (Ont. C.A.), at para.
46. The trial judge ruled that even in an
    application under s. 37, defence counsel could attend the
in camera
hearing, subject to undertakings and a court order.

[59]

The Crown
    appealed to the B.C. Court of Appeal pursuant to s. 37.1(1) of the
CEA
,
    but that appeal was dismissed: 2008 BCCA 297, 257 B.C.A.C. 253. The Crown then
    appealed, with leave, to the Supreme Court of Canada.

[60]

The Supreme
    Court held that it was an error for the trial judge to permit defence counsel
    to attend the
in camera
hearing to determine the existence of informer
    privilege where, in the course of the hearing, information tending to reveal
    the identity of the putative informer was bound to be revealed. Justice Fish
    clarified the following governing principles:

·

Whenever informer privilege is claimed, or the court of its own
    motion considers that the privilege appears to arise, its existence must be
    determined by the court
in camera
at a first stage hearing. At this
    stage, the existence of the claim cannot be publicly disclosed: at para. 38.

·

In determining whether the privilege exists, the judge must be
    satisfied, on a balance of probabilities, that the individual concerned is
    indeed a confidential informant. If the claim is established, the judge must
    give it full effect  trial judges have no discretion to do otherwise: at para.
    39.

·

The informer privilege belongs jointly to the Crown and to the
    informant. Neither the Crown nor the informer can waive the privilege without
    the consent of the other: at para. 40.

[61]

With respect to
    whether the first stage hearing must proceed
ex parte
, Fish J.
    reiterated that the primary concern is the protection of the identity of the informant.
    Thus, even though the right to make full answer and defence is constitutionally
    guaranteed, the hearing to determine privilege must proceed on the assumption
    that [the privilege] does apply. No one beyond the Crown and the putative
    informer may access information over which the privilege has been claimed until
    a judge has determined that the privilege does not exist or that an exception
    applies:
R. v. Basi
, at para. 44. Thus, the accused and defence
    counsel will be excluded from the proceeding when the identity of the putative
    informer cannot be otherwise protected:
R. v. Basi
, at para. 53.

[62]

The Supreme
    Courts reasons in
R. v. Basi
indicate that the appellants and their
    counsel had no right to attend the
ex parte, in camera
hearing in this
    case. The application judge made clear that the hearing was conducted to
    determine whether the two individuals were
prima facie
confidential
    informers. He ultimately determined that there is a need to protect the
    confidentiality of the two informers. At the conclusion of the
ex parte
hearing, the application judge ordered that the transcript of that hearing be
    sealed. He later ordered that the appellants would only be entitled to an
    edited transcript of the
ex parte
hearing that had been redacted to
    protect the identity of the confidential informants. On the authority of
R.
    v. Basi
, it would have been an error for the application judge to permit
    the appellants to attend the hearing at issue in these circumstances. As such,
    the application judge proceeded with jurisdiction in holding the hearing
in
    camera
and
ex parte
.

[63]

Although the
    Crown in
R. v. Basi
ultimately invoked s. 37 of the
CEA
, the
    reasoning in that case did not depend on the fact that s. 37 was engaged.
    Rather, the conclusion that the accused and their counsel were not to be in
    attendance at that first stage hearing was premised on the absolute need to
    protect the identity of the confidential informants, and the reality that
    information relating to their identity could be revealed in such a hearing.

[64]

The appellants
    argue that other passages in
R. v. Basi
stand for the proposition that
    they should have been present at the hearing that was held
ex parte
,
    except where necessary to protect the two individuals identity. They also
    argue that, in any event, they had the right to make submissions about the
    procedure that ought to have been followed in that hearing. For convenience, we
    set out the passages in question from
R. v. Basi
, at paras. 53-58, in
    their entirety:

Where a hearing is required to resolve a Crown claim of
    privilege, the accused and defence counsel should therefore be excluded from
    the proceedings only when the identity of the confidential informant cannot be
    otherwise protected. And, even then, only to the necessary extent. In
    determining whether the claim of privilege has been made out, trial judges
    should make every effort to avoid unnecessary complexity or delay, without
    compromising the ability of the accused to make full answer and defence.

Throughout, it should be remembered as well that the interest
    of accused persons in being present (or, at least, represented) at any
    proceeding relating to the charges they face remains a fundamental one, even
    where s. 650, by its very terms, has no application. An
ex parte
procedure is particularly troubling when the person excluded from the
    proceeding faces criminal conviction and its consequences.

In order to protect these interests of the accused, trial
    judges should adopt all reasonable measures to permit defence counsel to make
    meaningful submissions regarding what occurs in their absence. Trial judges
    have broad discretion to craft appropriate procedures in this regard.

Measures that a trial judge may wish to adopt in assessing a
    claim of informer privilege include inviting submissions on the scope of the
    privilege -- including argument as to who constitutes a confidential informant
    entitled to the privilege -- and its application in the circumstances of the
    case. Defence counsel may be invited as well to suggest questions to be put by
    the trial judge to any witness that will be called at the
ex parte
proceeding.

In appropriate cases, fairness may require the court to provide
    the defence with a redacted or summarized version of the evidence presented
ex
    parte
-- edited to eliminate any possibility of disclosing the informants
    identity -- so as to permit the trial judge to receive additional submissions
    from the defence on whether the privilege applies in the particular
    circumstances of the case. In particularly difficult cases, the trial judge may
    appoint an
amicus curiae
to attend the
ex parte
proceeding in
    order to provide assistance in assessing the claim of privilege.

In the present case, permitting defence counsel to make
    submissions and to propose questions to be put by the court to the witness at
    the
ex parte
hearing might well have been appropriate. The trial
    judge, however, will be in a better position to decide how best to craft
    safeguards that mitigate any potential unfairness arising from the
ex parte
nature of the proceedings. The adoption of appropriate initiatives is therefore
    best left to the trial judge.

[65]

We disagree with
    the appellants interpretation of these passages for the following reasons.
    First, these passages do not undermine the
ratio
of the decision,
    which is that there is no right for the accused or their counsel to be present
    at a first stage
in camera
hearing on a claim of informer privilege;
    to the contrary,
Basi
anticipates that the first stage hearing will be
    conducted in the absence of the accused.

[66]

Second, the
    Supreme Court confirms in these passages that the trial judge has broad
    discretion to craft appropriate procedures to safeguard the interests
    underlying informer privilege and to protect the interests of the accused. By
    way of example, Fish J. suggests that in some circumstances, defence counsel
    may be invited to suggest questions to be put by the trial judge to witnesses
    that will be called to the
ex parte
hearing, or the court may be
    required to furnish the defence with a redacted or summarized version of the
    evidence presented
ex parte
so as to permit the trial judge to receive
    additional submissions on whether the privilege applies in the particular
    circumstances of the case.

[67]

In the case at
    bar, while the appellants counsel were not given the opportunity to propose
    questions to be put to witnesses at the
ex parte
hearing, they were
    provided with a redacted transcript of what had occurred
.
As the
    application judge noted, the appellants also continued to have the opportunity
    to challenge the privilege and its application at the editing hearing, as well
    as at the
Garofoli
application. At no point in their attendance before
    the application judge, nor during the appeal to this court, did the appellants
    suggest that additional questions or alternative procedures were required to
    ensure that confidential informer status was properly assessed.

[68]

Moreover, a
    review of the transcript of the editing hearing makes it clear that the
    application judge focused on the need to provide the appellants with all of the
    information from the notes and files of the handlers of the confidential
    informants, the ITO, and the
ex parte
hearing, such as would enable
    them to fully participate in the
Garofoli
hearing, but for any
    information that might reveal the identity of the confidential informants.

[69]

The respondent
    acknowledges that it may have been preferable for defence counsel to have been
    given notice of the procedure the Crown proposed to adopt to deal with the
    issue of confidential informer status, and for the appellants to have had the
    opportunity to make submissions about the procedure to be followed. The
    respondent argues, however, that the failure to do so in these circumstances
    did not result in any prejudice to the appellants, or a denial of their right
    to make full answer and defence. Keeping in mind the broad discretion judges
    possess to craft procedures when faced with an assertion of informer privilege,
    we agree. The application judge adopted adequate measures to safeguard the
    interests of the appellants in connection with the determination of the
    question of confidential informer status.

[70]

If we had
    concluded that the procedure that was followed was a breach of s. 650(1) of the
Criminal Code
, this would be an appropriate case for the application
    of the curative proviso under s. 686(1)(b)(iv). Applying the factors identified
    in
R. v. Simon
, 2010 ONCA 754, 104 O.R. (3d) 340, at para. 123, while
    the procedure was adopted deliberately by the Crown and not initiated or
    consented to by defence counsel, the appellants were informed about what had
    occurred and received a redacted transcript. The appellants were present when
    the transcript was edited, and only information that might reveal the identity
    of the confidential informants was withheld. The determination of informer
    privilege at the
ex parte
hearing was provisional and subject to later
    challenge. There was minimal prejudice to the appellants, who did not challenge
    the assertion of informer privilege in any proceedings that followed.

[71]

For these
    reasons, this ground of appeal is dismissed.

(2)

Is s. 186(1.1) of the
Criminal Code
contrary to s. 8 of the
Charter
?

[72]

The appellants
    challenge the constitutionality of s. 186(1.1) of the
Criminal Code
,
    which was used to obtain the wiretap authorizations of February 13 and March
    31, 2006. They argue that this provision infringes s. 8 of the
Charter
,
    which guarantees protection against unreasonable search and seizure, because it
    does away with the investigative necessity requirement in s. 186(1)(b).
    According to the appellants, state interception of private communications
    without a demonstration of investigative necessity renders the authorization unconstitutional.

[73]

Sections 186(1)
    and (1.1) provide as follows:

186. (1) An authorization under this section may be
    given if the judge to whom the application is made is satisfied

(a) that it would be in the best interests of the
    administration of justice to do so; and

(b) that other investigative procedures have been
    tried and have failed, other investigative procedures are unlikely to succeed
    or the urgency of the matter is such that it would be impractical to carry out
    the investigation of the offence using only other investigative procedures.

(1.1) Notwithstanding paragraph (1)(b), that
    paragraph does not apply where the judge is satisfied that the application for
    an authorization is in relation to

(a) an offence under section 467.11, 467.12 or
    467.13;

(b) an offence committed for the benefit of, at
    the direction of or in association with a criminal organization; or

(c) a terrorism offence.

[74]

In the present
    case, the two Part VI ITOs alleged that the offences being investigated were
    organized crime offences.  As such, s. 186(1.1) of the
Criminal Code
applied, and the authorizing judge did not need to be satisfied that there was
    investigative necessity before granting the authorizations. This is because,
    when s. 186(1.1) applies, an authorizing judge need not be satisfied that other
    investigative procedures have been tried and have failed, that other procedures
    are unlikely to succeed or that the urgency of the matter is such that it would
    be impractical to investigate the offence using only other investigative
    procedures, before granting an authorization.

[75]

As part of their
    challenge to the two Part VI authorizations issued in this case, the appellants
    (other than Alvarez) brought a pre-trial application before the trial judge
    seeking to have s. 186(1.1) declared unconstitutional. The trial judge,
    Nordheimer J., rejected the constitutional challenge in reasons reported at
    [2009] O.J. No. 2250.

[76]

The trial judge
    concluded that the minimum constitutional requirements of s. 8 are met by s.
    186(1)(a) alone, which requires the authorizing judge to determine whether the
    issuance of the Part VI authorization would be in the best interests of the
    administration of justice (at paras. 13-16). The trial judge rejected the
    contention that the Supreme Court of Canadas decision in
R. v. Araujo
,
    2000 SCC 65, [2000] 2 S.C.R. 992, establishes that investigative necessity is a
    constitutional  precondition to granting an authorization, noting that the
    weight of authority in Ontario courts and in other provinces is to the
    contrary. The trial judge reasoned, at para. 21, that the removal of the
    investigative necessity requirement in s. 186(1.1) reflects Parliaments
    predetermination that other investigative procedures are unlikely to succeed
    in the narrow and defined contexts outlined in s. 186(1.1)(a)-(c). He concluded
    that s. 186(1.1) is constitutionally valid (at paras. 21-26).

[77]

The appellants
    had also applied to cross-examine the affiant of the ITOs on the investigative
    necessity requirement. Having concluded that a finding of investigative
    necessity was not a constitutional prerequisite, the trial judge refused leave
    to cross-examine on this issue.

Analysis

[78]

The presumed
    constitutional standard for searches or seizures in the criminal sphere is
    judicial pre-authorization, which involves: a prior determination by a neutral
    and impartial arbiter, acting judicially, that the search or seizure is
    supported by reasonable grounds, established on oath:
R. v. Tse,
2012
    SCC 16, [2012] 1 S.C.R. 531, at para. 16, citing
Hunter v. Southam Inc.
,
    [1984] 2 S.C.R. 145.

[79]

There is no
    question that Parliament can legislate beyond minimal constitutional
    requirements on matters engaging constitutionally guaranteed rights and
    freedoms without expanding its constitutional obligations:
R. v. Rodgers
,
    2006 SCC 15, [2006] 1 S.C.R. 554, at para. 49.

[80]

The issue is
    whether the investigative necessity requirement articulated in s. 186(1)(b) is
    only a statutory requirement, or whether it is also a constitutional
    requirement.

[81]

The point of
    departure in considering this question is
R. v. Finlay

and

Grellette
(1985), 23 C.C.C. (3d) 48, leave to appeal refused [1985] S.C.C.A. No. 46, where
    this court considered the constitutionality of what is now Part VI of the
Criminal
    Code
. In that case, it was argued that the failure of the relevant
    provisions to limit interceptions to targets who are believed to be involved in
    the commission of an offence, and to require measures to minimize the impact of
    court-ordered electronic surveillance on privacy interests (as were contained
    in the comparable Title III provisions in the U.S.),
[1]
rendered the provisions unconstitutional.

[82]

Writing on
    behalf of the court, Martin J.A. rejected these arguments. He concluded that
    the requirement that a judge be satisfied that granting the authorization would
    be in the best interests of the administration of justice (as required by
    what is now s. 186(1)(a)) imports at least the requirement that the judge must
    be satisfied that there is reasonable ground to believe that communications
    concerning the particular offence will be obtained through the interception
    sought (at p. 72). He went on to hold that what is now s. 186(1) is
    constitutional and meets the requirements of s. 8 of the
Charter
. The
    Supreme Court of Canada explicitly affirmed Martin J.A.s conclusion in
R.
    v. Duarte
, [1990] 1 S.C.R. 30, at p. 45.

[83]

In
R. v.
    Garofoli
, [1990] 2 S.C.R. 1421, Sopinka J. stated that the statutory
    requirements of s. 178.13(1)(a) [now s. 186(1)(a)] are identical to the constitutional
    requirements.  An authorizing judge must, therefore, be satisfied on the basis
    of the affidavit evidence that these conditions have been met (at p. 1445).

[84]

In
R. v.
    Araujo
, the Supreme Court considered the specific question of what was
    required to satisfy the investigative necessity requirement in s. 186(1)(b),
    having regard to its three branches. Justice LeBel, writing for the court,
    concluded that s. 186(1)(b) requires the authorizing justice to determine
    whether there is, practically speaking, no other reasonable alternative method
    of investigation (at para. 29).

[85]

The appellants
    point to the following paragraph in
Araujo
, at para. 26,

in
    support of the argument that investigative necessity is a constitutional
    requirement rather than simply a statutory element of a s. 186(1) authorization:

The correct interpretation of s. 186(1)s investigative
    necessity requirement must be based on the text of the provision read with a
    simultaneous awareness of two potentially competing considerations. [W]e need
    to give the section a fair and liberal reading as part of our countrys
    criminal justice legislation.  Second, however, we must not forget that the
    text of s. 186(1) represents a type of constitutional compromise.
In
    particular, the investigative necessity requirement embodied in s. 186(1) is
    one of the safeguards that made it possible for this Court to uphold these
    parts of the Criminal Code on constitutional grounds (Duarte, supra, at p. 45;
    Garofoli, supra, at p. 1444).
As a result, s. 186(1) must be read with a
    simultaneous awareness of the competing values of enabling criminal
    investigations and protecting privacy rights. [Emphasis added.]

[86]

However, LeBel
    J. specifically stated at the outset of his reasons that these reasons will
    not discuss the new s. 186(1.1) and related amendments adopted in 1997 which
    target criminal organizations. These amendments were not invoked or examined in
    the case at bar (at para. 2). Consequently, the highlighted passage from para.
    26 of his reasons cannot be relied on as establishing that investigative
    necessity is a precondition to the constitutionality of s. 186(1.1).

[87]

The Supreme
    Court referred to
Araujo
in
R. v. S.A.B.
, 2003 SCC 60, [2003]
    2 S.C.R. No. 678. In that case, Arbour J., writing for the court, concluded
    that investigative necessity is not a constitutionally-required precondition
    for obtaining a DNA warrant. The court was not specifically considering s. 186.
    However, in a passage relied on by the appellants, Arbour J. referred to
    investigative necessity in the context of wiretap authorizations as a
    constitutional requirement (at para. 53), and contrasted the intrusiveness and
    scope of wiretaps with the specific focus of a DNA warrant (at para. 54):

I see no reason to import, as a constitutional imperative, a
    similar requirement in the case of DNA warrants. There are obvious differences
    between the use of wiretaps as an investigative tool, and recourse to a DNA
    warrant. Wiretaps are sweeping in their reach. They invariably intrude into the
    privacy interests of third parties who are not targeted by the criminal
    investigation. They cast a net that is inevitably wide. By contrast, DNA
    warrants are target specific. Significantly, DNA warrants also have the
    capacity to exonerate an accused early in the investigative process. Although
    it would have been open to Parliament to provide for the use of forensic DNA
    analysis as a last resort investigative technique, I can see no reason to
    require, as a condition for constitutional compliance, that it be so. Moreover,
    as the Court of Appeal noted, the s. 487.05(1) requirement of showing that the
    warrant is in the best interests of the administration of justice would
    prevent a judge from issuing a warrant where it is unnecessary to do so.

[88]

The
obiter
statements of the Supreme Court in
S.A.B
. are not determinative of the
    constitutional issue here. The Supreme Court in that case was speaking about
    wiretap authorizations in general. The court was not considering the constitutional
    preconditions for wiretap authorizations used to investigate the specific types
    of offences enumerated in s. 186(1.1). Moreover, the reasons of the Supreme
    Court in
Garofoli
or
Araujo
do not establish that investigative
    necessity is a constitutional requirement.

[89]

In
R. v.
    Largie
, 2010 ONCA 548, 256 C.C.C. (3d) 297, leave to appeal refused,
    [2011] S.C.C.A. No. 119, this court recently considered whether investigative
    necessity is a constitutional requirement under s. 184.2 of the
Criminal
    Code
. Section 184.2 does not include a requirement of investigative
    necessity in the case of authorizations of the interception of private
    communications with the consent of a participant to the communication.

[90]

In that case,
    Watt J.A., writing for the court, concluded that the minimum constitutional
    requirement that s. 8 of the
Charter
demands for electronic
    surveillance, especially wiretapping, is the requirement dictated by
Hunter
    v. Southam
and
Garofoli
of reasonable and probable grounds,
    established upon oath, to believe that an offence has been committed and that
    there is evidence to be found at the place of the search (at para. 40). The requirement
    in s. 186(1)(a) that the authorizing judge be satisfied that granting the
    authorization would be in the best interests of the administration of justice
    is identical to the constitutional requirement set by
Hunter
.  Justice
    Watt, at para. 42, found support for this view in
Finlay v. Grellette
:

In
Finlay and Grellette
, the appellants challenged the
    constitutional validity of [then] Part IV.1 of the
Criminal Code
, the
    predecessor to current Part VI. The basis of the challenge was threefold,
    including a submission that the standard for granting a conventional
    authorization, the current s. 186(1), fell below what the Constitution
    requires. The court upheld the validity of the Part examining the full panoply
    of safeguards sprinkled throughout the legislation. Without express reference
    to the investigative necessity requirement of s. 186(1)(b), the court was
    satisfied that the provisions of former s. 178.13(1)(a) were constitutionally
    sound.

[91]

Justice Watt
    also considered
Araujo
.  We agree with his conclusion that the Supreme
    Court in that case reaffirmed the equivalence of s. 186(1)(a) with the minimum
    constitutional standard imposed under
Hunter
, and the court did not
    characterize investigative necessity as anything other than a statutory
    pre-condition to the exercise of the discretion to grant a conventional
    authorization permitting state-conducted third party surveillance:
Largie
,
    at para. 46.

[92]

The appellants
    contend that the analysis and conclusions about investigative necessity in
Largie
are distinguishable because that case involved a consent authorization.  With
    consent authorizations, the interception is a targeted one, because the focus
    is on preserving a record of a communication where there is already a witness
    who could testify about it.  The breadth of the invasion of privacy is
    narrower. Indeed, Watt J.A. noted these distinctions at para. 56 of
Largie
.

[93]

The appellants
    assert that there is a different constitutional matrix for third-party
    electronic surveillance, given the greater potential intrusion on individual
    privacy, including the privacy of third parties who are not the target of the
    police investigation.  Once the authorizing judge is satisfied that an
    authorization under s. 186 should be issued, the police can intercept
    communications at large and there is no requirement that they stop listening
    when the communications are irrelevant to their investigation.

[94]

The appellants contend
    that their argument is reinforced by this courts recent decision in
R. v.
    Mahal
, 2012 ONCA 673, 292 C.C.C. (3d) 252, leave to appeal refused, [2012]
    S.C.C.A. No. 496. Justice Watt, writing for the court, held that the threshold
    for naming a person in a wiretap authorization as a known person is a modest
    one and does not require reasonable grounds to believe that the person was
    involved in the commission of an offence being investigated (at para. 71). The
    appellants contend that because the scope of potential targets is so broad,
    investigative necessity is required as a constitutional precondition for authorizing
    wiretapping as an investigative tool.

[95]

We do not share
    the appellants narrow interpretation of
Largie
.  It is clear from a
    reading of that decision that Watt J.A.s conclusion that investigative
    necessity is not a constitutional requirement for consent authorizations did
    not turn on their difference in scope from third party surveillance:  see
    paras. 47-57. He rejected the assertion of a constitutional imperative of
    investigative necessity for wiretaps in general. And in
Mahal
, although
    the issue of the constitutional preconditions for granting an authorization
    under s. 186(1) was not directly engaged, Watt J.A. stated that s. 186(1)(a)
    embodies the constitutional requirement for a wiretap authorization (at para.
    68):

The interception of private communications constitutes a search
    or seizure for the purposes of s. 8 of the
Charter
, thus any statutory
    provisions that authorize these interceptions must conform to the minimum
    constitutional standards that s. 8 demands:
R. v. Duarte
, [1990] 1
    S.C.R. 30. Section 186(1)(a) complies with these standards. Before granting a
    conventional authorization, the authorizing judge must be satisfied by the
    supportive affidavit that there are reasonable and probable grounds to believe
    the following:

i. A specified crime has been or is being committed; and

ii. That the interception of the private communications
    proposed will afford evidence of the crime.

Garofoli
, at p. 1451. The affidavit must also
    establish the requirements of s. 186(1)(b).

[96]

Accordingly, in
    the two recent decisions in
Largie
and
Mahal
, this court has
    confirmed that the minimum constitutional requirement for electronic
    surveillance finds expression in s. 186(1)(a) of the
Criminal Code
.

[97]

Other courts
    have rejected the invitation to recognize investigative necessity as a
    constitutional imperative. The New Brunswick Court of Appeal in
R. v.
    Doiron
, 2007 NBCA 41, 221 C.C.C. (3d) 97, leave to appeal refused, [2007]
    S.C.C.A. No. 13, considered and dismissed the same constitutional argument that
    the appellants advance before us.  Writing for the court, Deschênes J.A. held
    (at para. 33):

Notwithstanding Justice LeBels and Arbours
obiter
pronouncements [in
Araujo
and
S.A.B.
], I believe that the
    necessity requirement is not a constitutional requirement for court-ordered
    electronic surveillance in cases involving organized crime, and that its
    absence from the legislation does not violate the right guaranteed by s. 8 of
    the Charter.

[98]

In reaching this
    conclusion, the court relied on the statements in
Garofoli
to the
    effect that the requirements of s. 186(1)(a) are identical to the
    constitutional requirements. The court also referred to the trial decision in
R.
    v. Largie,
[2004] O.J. No. 5675 (S.C.J.), to the effect that investigative
    necessity is not a constitutional requirement to be met under Part VI of the
Code
.

[99]

In
Canadian Broadcasting
    Corp. v. New Brunswick (Attorney General)
, [1991] 3 S.C.R. 459, the
    Supreme Court refused to recognize investigative necessity as a constitutional requirement
    for the search of the premises of media organizations. The court rejected the
    argument that the impact of media searches on diverse constitutional interests
    apart from the narrow privacy interests of the target would require a
    demonstration of investigative necessity.  Justice Cory stated at p. 478:

In my view, the assessment of the reasonableness of a search
    cannot be said to rest only upon these two factors [comprising investigative
    necessity]. Rather all factors should be evaluated in light of the particular
    factual situation presented. The factors which may be vital in assessing the
    reasonableness of one search may be irrelevant in another. Simply stated, it is
    impossible to isolate two factors from the numerous considerations which bear
    on assessment of the reasonableness of a search and label them as conditional
    prerequisites. The essential question can be put in this way: taking into
    account all the circumstances and viewing them fairly and objectively can it be
    said that the search was a reasonable one?

It is the overall reasonableness of a search which is protected
    by s. 8 of the Charter. Certainly the potentially damaging effect of a search
    and seizure upon the freedom and the functioning of the press is highly
    relevant to the assessment of the reasonableness of the search. Yet neither s.
    2(b) nor s. 8 of the
Charter
requires that the two factors set out in
Pacific
    Press
[respecting investigative necessity] [
Re Pacific Press Ltd. and
    The Queen
(1977), 37 C.C.C. (2d) 487 (B.C. S.C.)] must always be met in
    order for a search to be permissible and constitutionally valid. It is
    essential that flexibility in the balancing process be preserved so that all
    the factors relevant to the individual case may be taken into consideration and
    properly weighed.

[100]

In our view, this passage
    articulates the correct approach to the constitutional issue here. The
    potential intrusion of a persons privacy in any search, whether it is by
    electronic surveillance, a search of personal information in a computer or the
    search of a place or person, will vary depending on the particular
    circumstances. We agree with the general assertion by this court at para. 49 of
Largie
that s. 186(1)(a) of the
Criminal Code
coincides with
    the minimum constitutional requirement dictated by
Hunter
. The
    statutory language it would be in the best interests of the administration of
    justice to do so [to grant the authorization] is the equivalent of reasonable
    and probable grounds, established upon oath, to believe that an offence has
    been committed and that there is evidence to be found at the place of the
    search.

[101]

Thus, we conclude that the
    investigative necessity requirement in s. 186(1)(b) is not a constitutional
    imperative. That said, whether or not other investigative methods had been
    considered and utilized, and why a wiretap would be important and even
    necessary to the investigation was addressed in the ITO, and was part of the
    circumstances that would affect the assessment by the authorizing judge of
    whether the wiretap authorization in this particular case was in the best
    interests of the administration of justice.

[102]

The appellants also argued that
    there was no demonstration of investigative necessity on the record in this
    case, and that they were prevented from exploring this issue on the cross-examination
    of the sub-affiants of the ITO, who were the two handlers of the confidential
    informers who provided information to the affiant, D.C. Vander Heyden. As such,
    the appellants argue that the authorizations were illegal, and that the
    evidence obtained through their use should be excluded.

[103]

Having concluded that
    investigative necessity was not a constitutional requirement for granting the
    wiretap authorizations, it is unnecessary for us to determine whether it would
    have been made out on the record before the trial judge. Likewise, the
    determination that investigative necessity is not a constitutional imperative
    disposes of the question concerning the exercise of the trial judges
    discretion not to permit cross-examination of the sub-affiants on this issue.

(3)

Is s. 487.01 of the
Criminal Code
contrary to s. 8 of the
Charter
?

[104]

As part of the pre-trial
    applications in these proceedings, the appellant Lucas brought a constitutional
    challenge to s. 487.01 of the
Criminal Code
. Section 487.01 is the
    provision under which the police obtained the three general warrants of
    February 16, 24 and March 31, 2006.

[105]

The relevant parts of s. 487.01
    are as follows:

487.01 (1) A provincial court judge, a judge of a
    superior court of criminal jurisdiction or a judge as defined in section 552
    may issue a warrant in writing authorizing a peace officer to, subject to this
    section, use any device or investigative technique or procedure or do any thing
    described in the warrant that would, if not authorized, constitute an
    unreasonable search or seizure in respect of a person or a persons property if

(a) the judge is satisfied by information on oath
    in writing that there are reasonable grounds to believe that an offence against
    this or any other Act of Parliament has been or will be committed and that
    information concerning the offence will be obtained through the use of the
    technique, procedure or device or the doing of the thing;

(b) the judge is satisfied that it is in the best
    interests of the administration of justice to issue the warrant; and

(c) there is no other provision in this or any
    other Act of Parliament that would provide for a warrant, authorization or
    order permitting the technique, procedure or device to be used or the thing to
    be done.

(2) Nothing in subsection (1) shall be construed as
    to permit interference with the bodily integrity of any person.

(3) A warrant issued under subsection (1) shall
    contain such terms and conditions as the judge considers advisable to ensure
    that any search or seizure authorized by the warrant is reasonable in the
    circumstances.

Other parts of the section deal expressly with video
    surveillance and with notice to a person whose property has been subjected to a
    covert search.

[106]

Before the trial judge, the
    appellant argued that the section is unconstitutional because it authorizes unlimited
    prospective searches over lengthy periods of time and leaves it to police
    officers to determine when, why and how often the warrant should be executed.

[107]

In thorough reasons reported at
    [2009] O.J. No. 3415, Nordheimer J. concluded that, properly interpreted, s.
    487.01 is valid. He held that the safeguards in s. 487.01 are similar to those that
    may be imposed as a term of an authorization to intercept private
    communications. The trial judge explained that s. 487.01 requires the
    authorizing judge (who must be a judge and not a Justice of the Peace) to make an
    advance determination that there are reasonable grounds to believe that an
    offence has been or will be committed and that the actions to be taken under
    the general warrant will lead to information concerning the offence (at paras.
    9-10). These provisions of s. 487.01 contain all of the recognized safeguards
    for a reasonable search set out in
Hunter
 (at para. 10).

[108]

The trial judge went on to observe
    that s. 487.01 provides an additional safeguard by requiring the authorizing judge
    to be satisfied that issuing the warrant is in the best interests of the
    administration of justice.  Still further, the provision requires that the
    authorizing judge impose terms and conditions that the judge considers
    advisable to ensure the reasonableness of any search or seizure authorized by the
    warrant (at para. 11).

[109]

For the following reasons, we
    agree with the trial judge that s. 487.01 of the
Criminal Code
does
    not contravene s. 8 of the
Charter
.

Analysis

[110]

The authorization of searches
    under s. 487.01 of the
Criminal Code
raises legitimate concerns about
    the protection of privacy guaranteed by s. 8 of the
Charter
because of
    the types of searches that can be authorized and the execution of such
    warrants. As interpreted by this and other courts, s. 487.01 authorizes the
    search for evidence and other information that is not known to exist at the
    time the warrant is granted. Warrants have been granted to authorize covert
    searches for many different places over extended periods of times. Such
    warrants challenge the basic notion of a reasonable search as explained by the
    Supreme Court of Canada in
Hunter v. Southam
, at p. 168:

In cases like the present, reasonable and probable grounds,
    established upon oath, to believe that
an offence has been committed
and that
there is evidence to be found at the place of the search
,
    constitutes the minimum standard, consistent with s. 8 of the
Charter
,
    for authorizing search and seizure. [Emphasis added.]

Nature of General Warrants

[111]

Section 487.01 requires that a
    judge be satisfied on reasonable grounds that an offence has been or will be
    committed. The extension of the general warrant to offences that will be
    committed is different from the normal s. 487 warrant described in
Hunter.
However,
    in our view, permitting the authorization of search warrants for that purpose
    is not a violation of s. 8.

[112]

As explained in
Hunter
,
    like the Fourth Amendment to the United States Constitution, s. 8 of the
Charter
protects people not places. Section 8 only protects a reasonable expectation of
    privacy and mandates an assessment of whether in a particular situation the
    publics interest in being left alone by government must give way to the
    governments interest in intruding on the individuals privacy in order to
    advance its goals, notably those of law enforcement (pp. 159-60). This
    expansive explanation from
Hunter
means that measuring the validity of
    intrusions into privacy cannot be frozen in the traditional s. 487 search
    warrant.

[113]

Section 487.01(1)(a) requires the
    demonstration of reasonable grounds to believe that an offence will be
    committed. This requirement is an adequate basis for balancing the public
    interest in being left alone and the governments interest in intruding into a
    persons privacy. The section requires the judge to be satisfied, before the
    warrant is issued, that an offence will be committed. Further, the judge must
    be satisfied, when asked to grant the warrant, that there are reasonable
    grounds to believe that information concerning the offence will be obtained
    through use of the authorized procedure. It is not left for the police
    executing the warrant to make those determinations.

[114]

Permitting the authorization of a
    warrant to search for information for an offence that has not yet been
    committed does, however, raise issues about execution. There must be some way
    of ensuring that the warrant is only executed when there are reasonable grounds
    to believe that information about a specific offence will be obtained.

[115]

In our view, the appropriate way
    to ensure that the warrant is carried out in a manner consistent with s. 8 is
    to limit its execution to circumstances where the police have gathered
    sufficient evidence to give rise to reasonable grounds that information related
    to the specified offences will be present. In our view, the validity of such terms
    has been approved, albeit in somewhat guarded language, by this court in
R.
    v. Brooks
(2003), 178 C.C.C. (3d) 361, where Moldaver J.A. held as follows,
    at para. 28:

For reasons that will become apparent, the facts of this case
    do not lend themselves to a comprehensive discussion of the nature and type of
    pre-conditions contemplated by s. 487.01(3). Suffice it to say that in order to
    avoid the risks associated with anticipatory warrants, I think there is much to
    be said for insisting on pre-conditions that are explicit, clear and narrowly
    drawn.

[116]

The appellants challenge the
    validity of s. 487.01 because it does not require the inclusion of safeguards
    similar to those required for anticipatory warrants issued in the United
    States. In
Brooks
, at para. 21, the court referred to the decision in
United
    States v. Ricciardelli,
998 F. 2d 8 (1st Cir. 1993). In
Ricciardelli
,
    the United States Court of Appeals, First Circuit found that anticipatory
    warrants were constitutionally valid so long as they contain sufficient
    safeguards. The
Brooks
court referred to three safeguards outlined in
Ricciardelli
:

·

The conditions in the anticipatory warrant must be explicit,
    clear, and narrowly drawn so as to avoid misunderstanding or manipulation by
    government agents.

·

The triggering event must be ascertainable and preordained.

·

The warrant should restrict the officers discretion in detecting
    the occurrence of the event to almost ministerial proportions, similar to a
    search partys discretion in locating the place to be searched.

[117]

The safeguards referred to in
Ricciardelli
are helpful for a court in determining whether to grant an anticipatory warrant
    and in structuring the terms and conditions set out in the warrant under s.
    487.01(3) of the
Criminal Code
. Those safeguards need not be spelled
    out in the statutory provision itself. The need for conditions that are
    explicit, clear and narrowly drawn is consistent with the statutory requirement
    in s. 487.01(1)(b) that the judge be satisfied that the issuance of the warrant
    is in the best interests of the administration of justice.

[118]

As noted above, this court took a
    similar approach in considering the validity of authorizations to intercept
    private communications under Part VI of the
Criminal Code
. In
R.
    v. Finlay and Grellette
, this court found that the provisions of what are
    now Part VI of the
Criminal Code
are constitutionally valid even
    though there is no explicit requirement that the authorizing judge be satisfied
    that there are reasonable grounds to believe that a crime is being committed
    and that evidence would be found as a result of interception of private
    communications. As Martin J.A. explained in the context of interception of
    private communications, the concept of the best interests of the administration
    of justice necessarily imports readily identifiable and mutually supportive
    components (at p. 70). Those components are that granting the authorization
    would further the objectives of justice and that there be a balancing of the
    interests of law enforcement and the individuals interest in privacy. These
    components necessarily preclude granting an authorization to intercept private
    communications on the basis of mere suspicion.

[119]

As this court concluded in
R.
    v. Finlay and Grellette
, the absence of the express requirements of
    reasonable grounds, as found in the comparable Title III provisions in the
    U.S., did not invalidate the legislation because the authorization could only
    be granted where it was in the best interests of the administration of justice
    to do so. The precondition that the authorization be in the best interests of
    the administration of justice requires the authorizing judge to be satisfied
    that there are reasonable grounds to believe that an offence has been or is
    being committed (at pp. 70-71):

Thus, it appears to me that the prerequisite that the judge
    must be satisfied that it would be in the best interests of the administration
    of justice to grant the authorization, in the context of the legislative scheme,
    imports as a minimum requirement that the authorizing judge must be satisfied
    that there are reasonable grounds to believe that a particular offence or a
    conspiracy, attempt or incitement to commit it has been, or is being,
    committed.

[120]

As explained by Martin J.A., this
    reading of the statutory language is not to read in words that are not there,
    but to give a reasonable meaning to Parliaments language (at p. 72). As
    Martin J.A. went on to say: Indeed, the language Parliament has chosen in the
    context of the legislative scheme might import a higher standard than
    reasonable grounds to believe that communications concerning the offence will
    be intercepted, as required by §2518(3)(b) of Title III.

[121]

A similar approach is appropriate
    in considering the validity of s. 487.01, which explicitly includes the
    requirement that there
must be reasonable
    grounds to believe that an offence has been or will be committed. Like the
    interpretation that courts have given to s. 186(1)(a) of Part VI, this legislated
    precondition to granting a general warrant similarly protects privacy interests.
Part VI of the
Criminal Code
permits the granting of
    authorizations that can extend for periods of 60 days, that cover the private
    communications of numerous individuals for numerous offences, and that authorize
    interception of private communications of persons who become known in the
    course of the authorization: see the majoritys reasons in
R. v. Chesson,
[1988] 2 S.C.R. 148, at p. 164. We see little constitutional distinction
    between legislation that authorizes interception of private communications of
    unknown persons in the wiretap context and a warrant that authorizes the search
    and seizure of named premises for offences that will be committed. The crucial
    protection lies in the requirement that the judge is satisfied to the standard
    of reasonable grounds before granting the warrant.

[122]

Further, like provisions to
    intercept private communications, in considering the validity of s. 487.01, the
    legislation must be viewed as a whole. Thus, in addition to the reasonable
    grounds requirements in s. 487.01(1)(a) and the best interests of the
    administration of justice requirement in s. 487.01(1)(b), s. 487.01(1)(c)
    includes the important safeguard that the general warrant be used only where
    there is no other provision that would provide for a warrant, authorization or
    order permitting the particular technique.

[123]

As Moldaver J. explained in his
    concurring reasons in
R. v. TELUS Communications Co.
, 2013 SCC 16, [2013]
    2 S.C.R. 3, s. 487.01 includes stricter requirements than the ordinary warrant
    (para. 71). The no other provision requirement in s. 487.01(1)(c) ensures
    that police must use the general warrant sparingly, and only when the proposed
    technique is substantively different from an investigative technique accounted
    for by another legislative provision (at para. 80; see to the same effect the
    majority reasons of Abella J., at para. 20). Justice Moldaver reminded judges
    considering a s. 487.01 application of the need to impose terms and conditions
    reflecting the nature of the privacy interest at stake (para. 81).

[124]

In
R. v. Thompson
, [1990]
    2 S.C.R. 1111, the majority of the court upheld an authorization even though it
    would permit the surreptitious interception of private communications at public
    telephones with the result that the communications of innocent third persons
    could be intercepted. Likewise, covert search of premises previously identified
    in the warrant on the basis of reasonable grounds to believe an offence will be
    committed and that information concerning that offence will be obtained in
    those premises does not violate the guarantee in s. 8 of the
Charter
.

[125]

A central safeguard in s. 487.01
    is the requirement that the judge be provided with reasonable grounds in
    respect of specified offences that have or will be committed and that
    information concerning such offences will be obtained. Limiting the scope of
    the warrant to specified offences is particularly important where the
    authorization is sought in relation to offences that have not yet been committed.
    Judges would not be in a position to impose appropriate terms and conditions if
    they did not know what offences the police intended to investigate. To permit
    covert search and seizure in relation to offences that have not yet been
    committed and have not yet even been identified would not strike the
    appropriate balance between law enforcement and protection of privacy.

[126]

For these reasons, we are
    satisfied that s. 487.01 of the
Criminal Code
, properly interpreted,
    is consistent with s. 8 of the
Charter
.  Having dealt with the
    constitutional challenges to s. 186(1.1) and s. 487.01 of the
Criminal Code
,
    we now turn to the grounds of appeal related to the validity of the wiretap
    authorizations and the general warrants that were issued under these
    provisions.

(4)

Did the trial judge err in failing to find that the February 16, 2006
    ITO was invalid because it did not identify a past or current offence in
    respect of which the authorization could have issued?

[127]

The appellants Lucas, Rosa, Coyle
    and Chau contend that the trial judge, Nordheimer J., erred in dismissing their
Garofoli
application. It was through Lucas inclusion as a named
    person in the authorization that Rosa, Coyle and Chau had their communications
    intercepted.

[128]

As noted, the police sought the
    Part VI authorization in the context of their investigation of a number of
    offences involving the Doomstown Crips, including participation in a criminal
    organization, commission of an offence for a criminal organization, and drugs
    and weapons trafficking.  Lucas was not a member of the Doomstown Crips;
    however, he was believed to have supplied guns to the gang in the past.

[129]

The appellants assert that the
    trial judge erred in finding that the February 13, 2006 Part VI authorization
    was validly issued to intercept Lucas communications. They say the
    authorization was invalid because it was issued with respect to the investigation
    of future, unspecified offences that the police assumed would occur as a result
    of propensity reasoning based on the targets past criminal conduct. The
    appellants contend that s. 186 requires a specific past or present offence that
    is currently being investigated, coupled with a belief that the communications the
    state proposes to intercept will provide evidence in respect of the offence.
    Since the authorization was not based on specified current or past offences, it
    was improperly issued, and the evidence obtained through its execution should
    be excluded.

[130]

For the following reasons, we
    reject the appellants argument that the ITO failed to identify reasonable
    grounds to believe that the authorization would afford evidence of past or
    ongoing offences.

Ruling on the
Garofoli
Application

[131]

The trial judge, Nordheimer J.,
    concluded that there was sufficient evidence in the ITO to establish the
    existence of a gang known as the Doomstown Crips, that the gang had engaged in
    criminal activity, including drug trafficking and shootings, and that the gang
    possessed weapons it was prepared to use to protect its territory: see [2009]
    O.J. No. 2252, at para. 36. He concluded that there were reasonable grounds to
    believe, at the time the ITO was sworn, that the Doomstown Crips existed for
    the purpose of engaging in criminal activity, and that there was no reason to
    believe that its members would not continue to do so (at para. 40).

[132]

The trial judge considered the
    question of whether a Part VI authorization could issue in respect of the
    investigation of offences not yet committed.  He concluded that the words a particular
    offence has been, or is being, committed, as used in
R. v. Finlay and
    Grellette,
at p. 71, and repeated in subsequent cases, could be interpreted
    to authorize the interception of private communications in order to investigate
    an impending crime, in addition to past or current crimes. In the trial judges
    view, at para. 33: it does not make sense, nor is it in the public interest,
    to require a crime to have commenced in order to permit the police to have
    resort to this investigative tool. He agreed with the conclusion of the B.C.
    Court of Appeal in
R. v. Madrid
(1994), 48 B.C.A.C. 271, at para. 82,
    that it is sufficient if the issuing judge is satisfied that the deponent has
    reasonable and probable grounds to believe that a specific offence has, is
    being, or is about to be committed.

[133]

The trial judge went on to
    consider whether there were reasonable grounds for authorizing the interception
    of Lucas communications. In this regard, he reviewed the information about
    Lucas that was disclosed in the ITO and concluded that there were reasonable
    grounds to believe that Lucas had been, and continued to be, engaged in weapons
    trafficking for the Doomstown Crips, and that the interception of Lucas
    communications would provide evidence respecting the weapons and related
    offences (at para. 51).

[134]

Given his conclusion that there
    had been no s. 8 breach, the trial judge did not consider the application of s.
    24(2) of the
Charter
.

Analysis

[135]

There is no question, and indeed,
    defence counsel acknowledged before the trial judge, that the ITO provided
    reasonable and probable grounds to believe that a criminal organization was in
    existence (the Doomstown Crips), and, in the words of defence counsel, that
    its primary bread and butter is guns, drugs and violence.  .

[136]

The trial judges review of the
    evidence that was before the authorizing judge in relation to Lucas is at
    paras. 42-51 of his reasons. The evidence included: the information from the informer,
    Earle Cooke, that he had smuggled 110 firearms across the border and delivered
    these to Lucas between October 2002 and October 2003; that only 20 of these
    firearms had been recovered by the authorities; and that nine of those 20 firearms
    were linked to the Doomstown Crips. In addition, a DVD of a rap music video made
    in February 2005 (referred to as the Rapsheet video), which was attached as
    an exhibit to the ITO, showed members of the Doomstown Crips displaying what
    appeared to be weapons consistent with the type that Cooke claimed to have sold
    to Lucas.

[137]

Furthermore, the ITO referred to
    police surveillance evidence on January 31, 2006 that revealed Lucas carrying a
    knapsack containing three pipe-shaped objects that the police believed were
    firearms.

[138]

The trial judge concluded at para.
    51:

In my view, the totality of the circumstances justified the
    inclusion of Mr. Lucas in this authorization. It was clear that the Doomstown
    Crips had a source for weapons -- historically and currently. There was
    evidence capable of belief by the authorizing judge that would establish
    reasonable and probable grounds to believe that Mr. Lucas had, and was, engaged
    in weapons trafficking and that he had, and was, engaged in that criminal
    activity for the Doomstown Crips. There were also reasonable grounds to believe
    that the interception of Mr. Lucas communications would provide evidence
    respecting the weapons and related offences. It should be noted that the
    prosecution does not suggest that the authorizations could be justified in
    respect of Mr. Lucas other than in respect of those offences. The
    authorizations were therefore validly made in respect of Mr. Lucas.

[139]

The appellants assert that the information
    relating to Lucas was stale and ought not to have been relied on by the trial
    judge. Earle Cooke was arrested in the U.S. in 2003.  In a video statement in
    November 2004, he stated that he had supplied guns to Lucas in 2003.  There was
    no evidence of any ongoing supply of guns from Cooke to Lucas, as Cooke was
    subsequently incarcerated.

[140]

In this regard, we observe that,
    in some situations, a gap in time between an event referred to in an ITO and an
    authorization would be important because the dated aspect of the information
    would make it less reasonable to believe that the interception of the persons
    communications would afford evidence of a specified offence. However, we agree
    with the trial judge that in this case, the fact that guns had allegedly been
    supplied to Lucas some years before the investigation into the offences referred
    to in the ITO did not undermine the grounds for issuing the authorization to
    intercept his communications. The ITO provided reasonable grounds to believe
    that Lucas had not disposed of all the guns delivered to him by Cooke, that he
    had supplied guns to the Doomstown Crips in the past, and the surveillance
    evidence from January 2006 indicated that Lucas may have been transporting
    firearms. The ITO thus provided reasonable grounds to believe that Lucas had
    been and continued to be involved in the organized trafficking of a substantial
    number of weapons.

[141]

In the light of this information
    in the ITO, we reject the appellants position that the authorization was
    prospective in nature and based only on propensity reasoning about past
    behaviour.  We agree with the trial judges conclusion that the authorizing
    judge was justified in finding reasonable grounds to believe that Lucas had
    been, and continued to be, engaged in weapons trafficking for the Doomstown
    Crips, and that the interception of his communications would provide evidence
    respecting past and ongoing weapons-related offences. This ground of appeal is
    thus dismissed.

(5)

Did the trial judge, Nordheimer J., err in refusing to permit
    cross-examination of the affiant of the Part VI ITO?

[142]

In the context of the
Garofoli
application, the appellant Lucas was granted leave to cross-examine two of the
    sub-affiants of the February 13, 2006 ITO: the two handlers of the confidential
    informers who had provided information to D.C. Vander Heyden. The scope of the
    cross-examination was limited to whether admitted errors in the ITO relating to
    the confidential informers (suggesting that they were tested informers, and
    that one of the confidential informers was providing information for altruistic
    reasons when he or she had sought compensation that was refused) were
    intentional. The issue of whether leave should be granted to cross-examine the
    affiant was left to be determined until after the sub-affiants were
    cross-examined. The trial judges reasons on this issue are reported at [2009]
    O.J. No. 6387.

[143]

During his cross-examination, D.C.
    Beausoleil was asked about a paragraph in the ITO, which states: The
    information provided by Informant Number 1 demonstrates an ongoing gang war
    which has taken place between two (2) rival Crip gangs, the Doomstown Crips and
    the Crips from Mount Olive.  Officer Beausoleil agreed that he had never
    conveyed this information to the affiant, and that the confidential informer would
    not use the term Doomstown.

[144]

As a result, counsel for Lucas
    sought leave to cross-examine the affiant on why he used the words ongoing
    gang war when the information did not originate with D.C. Beausoleil or the
    confidential informer.  It was suggested that this statement had been included
    with an intention to mislead the authorizing justice.

[145]

The trial judge heard argument and
    refused leave to cross-examine the affiant, stating briefly that he was not satisfied
    that such cross-examination would materially advance the issue.  From the
    transcript of the argument, it is apparent that the trial judge was referring
    to the issue whether the issuing justice would have had reasonable grounds to
    believe that offences referred to in the ITO had occurred or were occurring and
    that the authorization would afford evidence of those offences.

[146]

The appellants submit that the
    trial judge erred in refusing leave to cross-examine D.C. Vander Heyden because
    such cross-examination could have shown intent to mislead, or could have
    advanced their argument about the authorization being only in relation to prospective
    offences.

[147]

A trial judge has discretion
    whether or not to grant leave to cross-examine the affiant who filed in support
    of a wiretap authorization:
R. v. Garofoli
, at para. 88;
R. v.
    Pires
, 2005 SCC 66, [2005] 3 S.C.R. 343. The test for permitting cross-examination
    in this context is stated in
R. v. Garofoli,
at para. 88
:


A basis must be shown by the accused for the view that the
    cross-examination will elicit testimony tending to discredit the existence of
    one of the preconditions to the authorization, as for example the existence of
    reasonable and probable grounds.

[148]

There is no basis to interfere
    with the trial judges decision to deny leave to cross-examine the affiant on
    the reference to an ongoing gang war which has taken place.  The evidence of
    the sub-affiant of the ITO confirmed the errors in what was reported as coming
    from confidential informant #1, and explained how the errors had occurred.  The
    reference to an ongoing gang war which has taken place is, at worst, an
    awkward characterization attributed to confidential informant #1, which Officer
    Beausoleil confirmed had not been provided by that source.

[149]

The affidavit included specific
    information from the confidential informer about a gang war between the
    Doomstown Crips and the Mount Olive Crew with relevant dates indicating that
    the events the informer described had occurred in the past.  As a result, the
    authorizing judge could not have been under any misapprehension about the
    currency of the information.  As such, there was no error in the exercise of
    the trial judges discretion to refuse leave to cross-examine the affiant on the
    issue of why he used the phrase ongoing gang war.

[150]

Moreover, and as is discussed
    further below at para. 168, the ITO was replete with details of the gang
    members extensive criminal activities and information from which it could
    reasonably be concluded that such activities were ongoing.  As such, the statement
    attributed to confidential informant #1 was not essential to the validity of
    the authorization.

[151]

We would thus dismiss this ground
    of appeal.

(6)

Did the trial judge, Molloy J., err by not excising certain information
    contained in the ITO filed in support of the February 13, 2006 Part VI
    authorization?

[152]

The appellant Alvarez also
    attacks the validity of the February 13, 2006 authorization. He contends that
    certain erroneous information ought to have been excised from the ITO, and that
    if such information had been excised, the ITO would not have provided
    sufficient grounds to meet the requirement that an identifiable specific
    offence had been or was being committed by the targets on February 13, 2006,
    the day the authorization was obtained.  He submits that the following three
    types of information ought to have been excised:

(i)

The opinion of Special Constable Press, a firearms expert, that the
  individuals in the Rapsheet video possessed possibly ten different firearms.
  This evidence was misleading given P.C. Press acknowledgment at the
  preliminary inquiry that without a physical examination, he could not conclude
  that the items met the legal definition of a firearm and that he had assumed
  the items were real firearms.
(ii)

The evidence of the confidential informers should have been excised in
  light of the affiants false statements about the reliability and track record
  of both informers, and his suggestion that confidential informer #1s motives
  were altruistic, when he had asked to be paid for information.  The appellant
  contends that, contrary to the trial judges conclusion, the incorrect
  information was included intentionally. Given this deliberate attempt to
  mislead, the authorization should have been invalidated or at least all of the
  information attributed to the informers ought to have been excised therefrom.
(iii)

The specific elements of the information provided by the confidential
  informers that fell short of the threshold established in
R. v. Debot
,
  [1989] 2 S.C.R. 1140, ought to have been excised.
[153]

For the reasons that follow, we
    conclude that the only information that the reviewing judge ought to have excised
    from the ITO was the information provided by confidential informant #2.
    However, excising the information provided by this informant would not have
    affected the validity of the authorization and so nothing turns on this error.
(i)

Evidence of P.C.
    Press
[154]

In reasons reported at 2009 CanLII
    48828, the trial judge, Molloy J., considered the amplified record, including
    P.C. Press evidence on the preliminary inquiry and his statement that he
    believed that the Rapsheet video depicted real guns because they looked real. 
    She concluded that P.C. Press statement was a logical inference drawn from
    the evidence by an expert well-equipped to give such an opinion (at para. 36).
[155]

We agree that there was no reason
    to excise this information from the affidavit. P.C. Press acknowledged in
    cross-examination at the preliminary hearing that the only way to conclusively
    determine if an object meets the
Criminal Code
definition of a firearm
    is to test it.  However, he testified that based on his extensive experience
    examining firearms, the firearms shown in the Rapsheet video depicted real guns
    because they looked real.  We agree with the motion judge that this conclusion,
    coming from a firearms expert, was logically drawn from the evidence.
(ii)

Evidence of the Confidential Informers was Misleadingly Presented
[156]

The affiant stated that
    confidential informant #2 had been providing information for one month and had
    always been reliable, when in fact this informant had provided information two
    times in December 2005 with respect to the Project XXX investigation. The trial
    judge concluded this was merely a drafting error with no intention to mislead
    (at para. 77).
[157]

In our view, the error in respect
    of confidential informant #2 was trivial and inconsequential. The affiants
    description could not be taken as somehow suggesting that this informant had a
    lengthy track record of providing accurate information, nor is there any reason
    to think that the authorizing judge would have been misled by the error in this
    description.
[158]

The errors in the affidavit
    concerning confidential informant #1 were more considerable. The affiant
    erroneously described confidential informant #1 as having provided information
    to D.C. Beausoleil for approximately one year, and as always having provided
    reliable information.  This was not true since the informant had only given
    information once in 2004.  The affiant also indicated that confidential
    informant #1s sole motivation in providing the information was to prevent loss
    of life.  In fact, confidential informant #1 had asked to be paid for the information.
    However, the informant agreed to provide the information without remuneration.
[159]

In the absence of
    cross-examination of the affiant, it is difficult to discern the reasons for
    the errors in the description of confidential informant #1 in the ITO. However,
    we agree with the trial judge that these errors did not invalidate the
    authorization because the authorizing judge was unlikely to have been materially
    misled by the inaccurate description of confidential informant #1s track
    record. We agree with the trial judges reasons for why it was not necessary to
    excise confidential informant #1s information from the ITO or to invalidate
    the warrant because of the misstatements in the ITO (at paras. 70-71):
[I]t is highly unlikely that the authorizing judge would have
    placed any significant weight on the supposedly altruistic motivations of
    Informant #1. He/she is an admitted life-long member of a rival gang and could
    have had any number of reasons for giving information to the police.  The fact
    that this informant had asked for money in exchange for information does not
    alter the situation significantly, since no consideration was ever paid and the
    information was provided in any event.
[I]t is also unlikely that any weight was given to the alleged
    track record of accurate information in the past.  No information is provided
    as to the number of times information was provided, the nature of that
    information, the specificity of that information or whether it led to any
    arrests or convictions.  In the absence of such details the authorizing judge
    cannot be taken to have placed any weight on the informants track record.
[160]

We thus reject this ground of
    appeal.
(iii)

Failure to Excise Information that Fell Short of the
R. v. Debot
Threshold
[161]

The trial judge agreed with the
    Crowns position that, in assessing the reliability and weight to be given to
    the confidential informants evidence, each was to be treated as a first-time
    informer with no track record. She went on to consider the information provided
    by each informer, and the extent to which the information was corroborated by
    information gathered by the police in their investigations. The trial judge
    found that the evidence of both informers was sufficiently compelling, credible
    and corroborated as to provide some evidence that the authorizing judge was
    entitled to rely on in deciding to issue the authorization.
[162]

At the
Garofoli
hearing, Crown
    counsel filed a table setting out the information in the ITO that was provided
    by the two informants and the extent to which the police corroborated this
    information through police occurrence reports, police investigation, and by comparison
    to the Rapsheet video.  We agree with the trial judges observation that much
    of the information provided by confidential informant #1 is highly compelling
    in its detail and shows obvious inside knowledge (at para. 73). The trial
    judge continued:
Other information is corroborated by information gathered by
    the police in their investigations, and the extent of that corroboration is set
    out in the affidavit.  In my opinion, the information provided by Confidential
    Informant #1 was sufficiently detailed and had sufficient corroboration that
    the credibility of this informant is greatly enhanced. It is not necessary that
    every aspect of an informants information be corroborated.  Where, as here, a
    substantial portion of the information is independently verified, the
    authorizing judge may consider all of the informants information in
    considering whether reasonable and probable grounds to grant the authorization
    have been established.
[163]

The trial judge reached the
    following conclusion about the information provided by confidential informant #2:
On the whole, I am of the view that, looked at in context, the
    evidence provided by this informant is sufficiently compelling, credible and
    corroborated as to provide some evidence that the authorizing judge was
    entitled to rely upon in coming to his conclusion.
[164]

The information provided by
    confidential informant #2 included street names of people who he/she said
    possessed weapons or sold drugs; however, some of this information was dated and
    some of it was uncorroborated.  The informant also gave an inaccurate physical
    description of an individual. The trial judge concluded that this inaccurate
    description ought not to vitiate all the information provided by the informant.
[165]

In our view, confidential
    informant #2 provided little relevant, corroborated information concerning
    criminal activity in the Jamestown area. However, this would have been obvious
    to the authorizing judge. Moreover, even if the trial judge had excised the
    information provided by confidential informant #2 from the affidavit for
    failing to meet the
Debot
standard of corroboration, the remaining
    material in the ITO provided ample reasonable grounds to believe that there was
    ongoing weapons and drug-related criminal activity in the Jamestown area by gang
    members. We go on to detail this information in explaining why we would not
    give effect to the appellant Alvarezs next ground of appeal.
(7)

Did the trial judge err in concluding that there were reasonable grounds
    to believe a specified offence had been or was being committed?
[166]

Like the appellant Lucas and his
    co-accused, the appellant Alvarez argues that the ITO failed to disclose
    reasonable grounds that an identifiable specific crime had been or was being
    committed, citing
R. v. Mahal
, at para. 75. The appellant contends
    that the type of reasoning presented in the ITO would permit the granting of an
    authorization whenever the police can demonstrate historic criminal activities
    of the targets, rather than information respecting the commission of an
    identifiable offence. The appellant Alvarez cites the Manitoba Court of
    Appeals decision in
R. v. Grant
(1998), 130 C.C.C. (3d) 53, at paras.
    26-27, for the propositions that wiretap authorizations cannot be granted to
    prevent criminal activity in the future, and are not intended to be used to
    uncover evidence of unknown crimes.
[167]

We would not give effect to this
    submission. The material filed in support of the ITO provided ample reasonable
    grounds to believe that evidence of particular offences might be obtained
    through the wiretap authorization, including evidence of participation in a
    criminal organization and evidence of an ongoing conspiracy by the named
    targets to traffic in weapons and controlled drugs and substances on behalf of
    a criminal organization.
[168]

The evidence in the ITO included
    the following information that supplied ample grounds to believe that the
    interceptions could provide evidence of past or ongoing offences by members of
    a criminal organization (see the trial judges reasons, at para. 113):
·

the 2005 Rapsheet video, which was alleged by police to portray
    members of the Doomstown Crips brandishing handguns and boasting of their
    criminal activities, including drug trafficking and shootings;
·

the report of Officer Bobbis concerning the existence of a
    criminal gang operating in the Jamestown area known as the Doomstown Crips;
·

the evidence of a drug expert, Det. Page, concerning the
    relationship between gangs and street level drug trafficking in the City of
    Toronto;
·

the evidence of P.C. Press, a firearms expert, who expressed the
    opinion that 10 different firearms were shown on the Rapsheet video;
·

the information from Det. Sgt. Comeau about the Code of Silence
    in the Jamestown and Rexdale areas that has hampered the polices ability to
    investigate crime and gang activity in those areas;
·

the information from confidential informant #1 concerning the
    existence of the Doomstown Crips and the involvement of its members with illegal
    firearms;
·

the information of Jermaine Street, a member of a known rival
    gang of the Doomstown Crips, who gave a statement to police about how gangs  including
    the Doomstown Crips, operated;
·

the evidence of the numerous inter-connections between the
    various individuals who are depicted on the Rapsheet video and those who are
    targeted persons for the wiretap authorization;
·

the criminal records of the known persons, and their connections
    to firearms and to illegal drugs, support the inference that they were members
    of the Doomstown Crips and were carrying out crimes, at least in part, for the
    benefit of that organization;  and,
·

the evidence of firearms trafficking based on information from Earl
    Cooke about guns coming from Texas, a number of which were seized in the Jamestown
    area and were in the possession of persons associated with the Doomstown Crips.
[169]

We agree with the trial judges
    observation at para. 114 that [a] street gang does not come into existence
    overnight, nor does it disappear over night. For that reason, some of the
    evidence [in the ITO] that might otherwise appear to be dated, remains
    relevant. Accordingly, we would not give effect to this ground of appeal.
(8)

Did the trial judge err in concluding that the appellant Alvarez was
    properly named as a known person in the affidavit?
[170]

The appellant Alvarez further contends
    that the trial judge erred in dismissing his
Garofoli
application in
    respect of the February 2006 Part VI authorization because the supporting
    affidavit did not reveal reasonable grounds for believing that intercepting his
    private communications would likely provide evidence respecting one of the
    named offences.
[171]

Again, we see no reason to
    interfere with the trial judges conclusions that the supporting affidavit
    afforded reasonable grounds to believe that intercepting Alvarezs
    communications might assist the investigation of the offences named in the ITO.
    The trial judge excised from the ITO incorrect and inaccurate information
    identifying Alvarez as a participant in the Rapsheet video, and thus as being
    involved in gun trafficking because he was allegedly holding a gun in the
    video.  Before the trial judge, the appellant adduced evidence demonstrating
    that the police had wrongly identified him as a participant in the video.  The
    trial judge concluded that, even after excising the erroneous information about
    Alvarez being in the Rapsheet video, there was other evidence in the ITO that made
    it reasonable to believe that intercepting Alvarezs communications would
    provide evidence of the offences under investigation (at para. 116):
[I]n my opinion, even after the
    excisions there is
some
evidence upon which the authorizing judge could
    find him to be a member of the Doomztown Crips and also conclude that there was
    reason to believe that intercepting his phone calls would likely provide
    evidence of criminal activities of that organization. That evidence is to be
    found in the information from the Confidential Informant [that Alvarez was a
    member of the gang], the nature and extent of Mr. Alvarezs criminal record,
    his association with other persons who had even more substantial connections to
    the Doomztown Crips, and his tattoo (even bearing in mind that Doomztown is
    also a nickname for the neighbourhood, not just the gang). [Emphasis in
    original.]
[172]

We agree that there was a body of
    evidence provided in the ITO that together justified Alvarezs inclusion as a
    target in the Part VI authorization, even after excising the erroneous information
    linking him to the Doomstown Crips.  This evidence includes the tattoo of
    Doomz Town across his forearms, the fact that he had been shot and injured in
    the company of two known gang members in 2003 and that none of the three had
    co-operated in the investigation, his extensive criminal record for drug
    trafficking and guns offences, his arrest in July 2005 for trafficking in
    cocaine, his identification by confidential informant #1 as a member of the
    Jamestown Crips, and the fact that three months before the ITO was sworn,
    someone had tried to smuggle marijuana to him in jail.  Together, this
    information provided reasonable grounds to believe that the interception of
    Alvarezs communications could provide evidence of criminal activity being
    committed by members of the gang.
[173]

Accordingly, this ground of appeal
    fails.
(9)

Were the general warrants invalid because they impermissibly delegated
    the judges discretion to the police?
[174]

We now turn to the grounds of
    appeal raised by the appellants, Lucas, Coyle and Chau concerning the validity
    of the three general warrants issued pursuant to s. 487.01 of the
Criminal
    Code
. These grounds of appeal relate to the ruling of the trial judge,
    Nordheimer J., reported at [2009] O.J. No. 3145.
[175]

As noted, the three general
    warrants in this case were issued on February 16 and 24 by Taylor J. and on
    March 31, 2006, as part of the Part VI authorization issued by Echlin J.  Each
    of the general warrants allowed for surreptitious entry into named premises for
    specified items when reasonable grounds existed to believe that specified named
    offences had been or would be committed and that those items would be present
    to be used for evidence in the investigation of the named offences and/or
    anticipatory charges.
[176]

For example, the wording of the
    March 31 general warrant authorized the following in the course of executing
    the covert entry:
IT IS FURTHER ORDERED, pursuant to s. 487.01 of the
Criminal
    Code
, that subject to the interception of private communications and/or
    physical surveillance which give officers reasonable grounds to believe that
    the items listed below are in the named places, that peace officers be
    authorized to surreptitiously enter and search the [named] places  at any time
    during the period that the Order is in effect, for controlled substances,
    firearms, firearm magazines, firearm components, prohibited devices, or firearm
    cartridges (ammunition), photographs, documents or data contained within
    cellular telephones,  Blackberries, personal data devices, and proceeds of
    crime, pertaining to the [named offences] ...
to examine, photograph,
    videotape and/or seize, any or all of those items to be used for evidence in
    the investigation of the named offences, and or anticipatory charges, as well
    as in the interest of public safety.
[Emphasis added.]
[177]

We suspect that the inclusion of
    the emphasized provision in the warrants was an attempt to mirror the plain
    view provision in s. 489 of the
Criminal Code
, which permits the
    seizure of the following things not mentioned in the warrant:
489. (1) Every person who executes a warrant may
    seize, in addition to the things mentioned in the warrant, any thing that the
    person believes on reasonable grounds
(a) has been obtained by the commission of an
    offence against this or any other Act of Parliament;
(b) has been used in the commission of an offence
    against this or any other Act of Parliament; or
(c) will afford evidence in respect of an offence
    against this or any other Act of Parliament.
[178]

The reference to anticipatory
    charges in the general warrants is troublesome because it appears to delegate
    to the police officer the decision as to how the warrant is to be executed, but
    without the reasonable grounds safeguard in s. 489 in respect of offences not
    specified in the warrant. In our view, a term of a general warrant that is
    intended to authorize the surveillance, search and seizure of items related to
    offences not listed in the warrant must be more carefully worded, perhaps in
    terms similar to s. 489. We need not finally determine that issue, however,
    because we are satisfied the inclusion of this term did not render the warrants
    invalid and the offending parts of the warrants can be safely excised.
[179]

This court was faced with an
    analogous problem in relation to an authorization to intercept private
    communications where a basket clause in an authorization purported to permit
    the interception of private communications of anyone at any place in the
    discretion of the police. In
R. v. Paterson
(1985), 18 C.C.C. (3d)
    137, Martin J.A. held that the basket clause was invalid as it constituted a
    delegation of the judges function to the police. The same might be said about
    the anticipatory charges parts of the general warrants in this case.
[180]

The court in
Paterson
held
    at p. 149 that the basket clause was severable and did not affect the validity
    of the balance of the authorization. In
Paterson
none of the
    interceptions had taken place by using the basket clause. Similarly, in this
    case, there was no suggestion that any of the surreptitious searches were
    conducted in relation to unknown charges.
[181]

The appellant submits that the
    wording of the general warrants authorized unconstitutional search and seizures
    because the decisions whether to execute the warrants were delegated to the
    police. We agree with the trial judge, Nordheimer J., that the conditions
    imposed by the warrants were valid: see [2009] O.J. No. 3415.  As he said at
    para. 25, the authorizing judges had concluded that the intrusions could occur
    and where they could occur. The decision whether to allow the search was made
    by the authorizing judges based on reasonable grounds to believe that
    information concerning the offences would be obtained through the use of the
    authorized technique, here, covert entry.
[182]

The appropriate timing of the
    intrusions could not be predicted in advance and thus the judges imposed a term
    authorizing the intrusions only when reasonable grounds existed to believe the
    items sought were present. As the trial judge noted, such a term is not unlike
    resort to clauses found to be validly included in wiretap authorizations. In
R.
    v. Thompson
, the majority of the Supreme Court held that such clauses are
    valid, at p. 1142:
From the perspective of the rights of a person who is a target
    of the authorization, if it is reasonable to intercept the communication of a
    person at a specified address, it seems equally reasonable to intercept that
    persons communication at another place to which he resorts. Subject to what
    will be said about residences and pay telephones, the nature of the invasion of
that persons
privacy does not change with that
    persons location.
It is the issuing judges function to determine whether
    there are grounds sufficient to justify this invasion. If the judge is so
    satisfied, it is no invalid shirking or delegation of his or her function to
    permit the police to conduct this surveillance at places for which there is
    sufficient evidence to believe the target resorts to.
[Underlining in
    original. Emphasis added.]
[183]

In considering the validity of the
    time of execution clause, it is evident that we do not agree with the condition
    imposed in
United States v. Ricciardelli
,

referred to above at
    para. 116, that the triggering event must be both ascertainable and
    preordained. In our view, this is too strict a condition. Reasonable grounds
    to believe, as included in these warrants, is a sufficient guarantee to protect
    the privacy rights of the targets of the intrusions.
(10)

Were the general warrants of February 16 and March 31, 2006 invalid as
    being contrary to the best interests of the administration of justice?
[184]

The appellants Lucas, Coyle and
    Chau submit that on their face, the general warrants of February 16 and March
    31, 2006 were too broad and the judges could not have been satisfied that such broad
    authorizations were in the best interests of the administration of justice. The
    appellants focused on the fact that these warrants authorized covert entry into
    many specified places for a 60-day period.
[185]

We agree with the trial judge that
    there is nothing in the legislation or in s. 8 of the
Charter
that
    limits the scope of the warrants in the sense of places to search (at para. 30).
    The question has to be whether the necessary reasonable grounds existed for
    each of those places. If they did not, the person affected who had a reasonable
    expectation of privacy could challenge that part of the warrant and any search
    pursuant to the warrant. The police could have obtained multiple general
    warrants related to each place sought to be searched. The fact that they sought
    and obtained authorization in one warrant for all of the places does not itself
    render the warrant invalid.
[186]

The appellants have not shown that
    the 60-day time period during which the general warrants were extant was
    unreasonable. As the trial judge pointed out, at para. 32, the time of the
    validity of the warrants was the same as can be authorized for surreptitious
    interception of private communications. The covert entries authorized in this
    case by the general warrants had similar purposes and could reasonably extend
    for 60 days.
[187]

We would not give effect to the
    grounds of appeal concerning the validity of the February 16 and March 31, 2006
    general warrants.
(11)

Was the search of the locker in violation of s. 8 of the
Charter
?
[188]

The appellants, Lucas, Coyle and
    Chau advance a more focused attack on the validity of the search of a locker in
    a public storage facility at 389 Paris Road in Brantford, which was purportedly
    authorized by the general warrant of February 24, 2006. The storage locker was
    rented by Lucas girlfriend. The search of the locker took place on February
    25, 2006. The search revealed two small safes, one of which contained a blue
    cooler bag. Inside the blue cooler bag the police found two firearms, ammunition,
    some marijuana, a number of small bags containing cocaine, a cardboard box, and
    various other items. The box had a Purolator label affixed to it.  On the label
    was the name Vincent Wong, as well as the appellant Coyles home address and
    cell phone number.  Inside the box was a one kilogram brick of cocaine.
[189]

The appellants say the trial judge
    erred in failing to exclude the items seized from the storage locker. They submit
    that the affidavit in support of the general warrant for this search was
    materially misleading. When the misleading portions are excised or corrected,
    the information in support was not sufficient to justify the granting of the
    warrant. In addition, the appellants submit that the warrant was not executed
    in accordance with its terms.
(i)

Was the affidavit in support of the warrant materially misleading?
[190]

The information to obtain the
    warrant to search the locker in question incorporated the material from the
    earlier information in support of the general warrant granted on February 16.
    At that time, the police did not know about the locker. On February 23, police officers
    attempted to surreptitiously execute the February 16 general warrant at Rosas
    house. A neighbour called Rosa because he thought there were burglars at his
    house. Police surveillance tracked Rosa going to his home.
[191]

The ITO sets out a series of
    intercepted telephone calls on February 23 related to the failed surreptitious
    entry into Rosas home. The ITO also refers to surveillance showing Lucas and
    Rosa driving in separate vehicles to Rosas home. Rosa entered the residence
    and returned. According to the ITO, Rosa appeared to be walking awkwardly,
    bent over to the front and there was a large bulge under the front of his
    jacket. Rosa went to Lucas vehicle and placed a large bag into the back of
    the vehicle. Rosa entered the vehicle and the police followed them to the
    self-storage facility at 389 Paris Road. According to the ITO:
Observations determined either LUCAS or ROSA entered storage
    locker designated B 35. Surveillance was unable to determine who entered and
    what exactly occurred in the storage locker.
[192]

The ITO further states that the
    affiant believes that Lucas and Rosa used the storage locker to securely store
    their illicit commodities in order to facilitate the commission of the offences
    listed in the ITO. The basis for this belief is that Rosa believed there had
    been a break-in at his home so he removed items from his home that he concealed
    under his jacket and placed in the rear of Lucas vehicle. He and Lucas then
    drove to the storage locker.
[193]

Based on evidence from the
    preliminary inquiry and the
voir dire
, Nordheimer J. concluded that
    the observations of the surveillance officers were simply that Rosa was seen
    leaving his residence with something under his jacket and going to the rear of
    Lucas vehicle. The trial judge excised the evidence in the ITO as to the
    manner in which Rosa was said to be walking and the evidence that he placed a
    large bag in the back of Lucas vehicle. Having excised this information, the
    trial judge concluded that what remained in the ITO was nonetheless sufficient
    to show there were reasonable grounds to issue the general warrant. He put it
    this way at para. 17 of his ruling, reported at [2009] O.J. No. 3414:
There would have been reasonable grounds to issue the general
    warrant if the subparagraph had been accurately worded. The fact that the
    police suspected that Mr. Rosa had information or items relating to criminal
    activity in his residence, that Mr. Rosa was seen apparently removing something
    from his residence after the failed attempt by the police to covertly search
    that residence and that Mr. Rosa and Mr. Lucas then drove to a public storage
    facility, taken with all of the other information that was contained in the
    ITO, would provide a sufficient basis for the general warrant to issue.
[194]

We agree with the trial judge that
    there was sufficient remaining material in the ITO to establish reasonable
    grounds to search the storage facility. As a result of the wiretap and other
    surveillance, there was evidence showing a relationship between Lucas and Rosa
    against a background of Lucas involvement in trafficking in illicit firearms.
    It was a reasonable inference from the physical and wiretap surveillance that
    Rosa wanted to remove contraband from his home in response to what he believed
    was an attempted break-in. That he immediately enlisted the aid of Lucas for
    that purpose was a basis for a reasonable inference that he wanted to store the
    contraband somewhere that was not only safe, but related to Lucas.
(ii)

Manner of Execution of the Warrant
[195]

The ITO states that the officers would
    obtain keys to locker B35 to enable them to enter without detection. In the
    event of exigent circumstances that made obtaining keys impracticable, the
    warrant authorized officers to use other means that caused the most minimal and
    reasonable amount of damage.
[196]

The evidence adduced on the
voir
    dire
indicated that the officers had no intention of obtaining keys. They
    rented a locker in the facility to obtain the pass code and then intended to
    either pick the lock of locker B35 or break the lock to gain entry. The officer
    in charge of executing the warrant never told the officer who prepared the ITO
    about the investigative plan and the officer in charge did not read the terms
    of the warrant before gaining entry by picking the lock.
[197]

The trial judge held that the
    terms of the warrant were not violated by the officers picking the lock rather
    than obtaining keys (at paras. 27-9):
Like any other judicial authorization, the terms and conditions
    of a general warrant should be strictly complied with. Judicial authorizations
    do not allow the police to pick and choose among the terms with which they will
    comply and which they feel they can ignore. That rule, however, must be
    reasonably applied. It ought not to be used to place the police in a
    straightjacket such that they cannot adjust their plan for the execution of a
    warrant regardless of how minor that adjustment may be.
At its core, the general warrant authorized a covert entry into
    storage locker #B35. It authorized the police to covertly obtain keys and make
    copies of those keys to enable that entry. The general warrant also authorized the
    police, in exigent circumstances and where it was not practical to obtain a
    key, to cause minimal damage in order to effect an entry into the premises. A
    fair reading of the terms and conditions of the general warrant did not mandate
    that keys be obtained. The ITO says that the plan was to obtain keys to
    facilitate entry into the storage locker. That plan was not cast in stone,
    however. No reasonable exception can be taken if the police were able to effect
    their entry without the need to resort to covertly copying keys. In contrast,
    if the applicants literal interpretation were to be accepted, then it would
    follow that, if the police had attended at the storage locker and found it
    unlocked, they would have been prohibited by the terms of the general warrant
    from simply opening the door and undertaking their search.
It perhaps goes without saying that it would have been
    preferable for the terms of the general warrant to have been stated in
    permissive as opposed to mandatory language so as to avoid any such problem.
    Nonetheless, I am unable to accept that the wording of paragraph 4.1 of the
    appendix can lead to the result for which the applicant contends.
[198]

Again, we agree with the trial
    judge that there was no violation of the warrant. While the ITO suggested a
    method of operation whereby the police would obtain keys, the warrant itself is
    not that specific. As the trial judge observed, the core of the authorization
    was to covertly enter the premises. The warrant itself authorized the officers
    to covertly retrieve keys and make an impression of those keys. The warrant
    does not, however, limit the covert entry to retrieving keys. In this case, the
    officer found an easier way of obtaining covert entry by simply picking the
    lock. The officers use of this alternative means, which resulted in a covert
    entry, was consistent with the warrant. As the trial judge said: A fair
    reading of the terms and conditions of the general warrant did not mandate that
    keys be obtained.
[199]

In the appendix to the warrant, which
    sets out powers, terms and conditions, a process is set out for obtaining keys
    in a covert manner:
Officers will obtain keys in a covert manner with the
    assistance of peace officers from the Toronto Police Service Intelligence
    Services that are trained and qualified to do so.
[200]

We do not read this provision as
    requiring the officers to obtain keys to effect the covert entry authorized in
    the warrant. As we have said, the warrant authorizes covertly retrieving keys,
    but neither the warrant nor the appendix is written in a way that requires the
    police to only enter by using the keys.
[201]

We would not give effect to these
    grounds of appeal.
(12)

Are the verdicts in respect of Rosa for possession of firearms and
    ammunition unreasonable?
[202]

The firearms and ammunition found
    in the storage locker formed the basis for the firearms offences for which
    Lucas and Rosa were jointly charged and convicted.
[203]

Rosa challenges his convictions
    for these offences as being unreasonable. He argues that there was insufficient
    evidence of his knowledge and control of these firearms to constitute his
    possession of them for the purpose of these offences. He distinguishes his
    position from that of Lucas, who does not challenge the reasonableness of his
    convictions for the same offences. Lucas acknowledges that the fact that the
    locker was rented by his girlfriend and other evidence connecting him to the
    locker could reasonably support the conclusion that he was in possession of its
    contents.
[204]

The issue here is simply whether
    there was evidence upon which a reasonable jury properly instructed could find
    Rosa guilty of the firearm offences. The appellant Rosa says that the evidence
    does not reasonably support the conclusion that he had knowledge or any control
    over the firearms and ammunition in the locker.
[205]

We disagree. As found by the trial
    judge in dismissing Rosas application for a directed verdict on the firearms
    offences, there was evidence from which the jury might draw the following
    conclusions:
·

Lucas and Rosa were very closely associated with each other and they
    were engaged in a conspiracy to traffic in cocaine.
·

They were using the storage locker as a place to hold cocaine.
·

Rosa called Lucas immediately after learning of an attempted
    break-in at his home.  With Lucas serving as look-out, Rosa went into his house
    and exited with something concealed under his coat.
·

After appearing to have removed some object from his home, Lucas
    and Rosa drove together to the storage locker and one or both entered it.
·

Inside the locker was a safe containing a cooler bag in which the
    police discovered the two firearms, the ammunition and a Blackberry. The
    Blackberry inside the storage locker was password protected with the same
    password as a Blackberry that was later seized from Rosas home. The evidence
    of the identical passwords to the Blackberries was capable of connecting Rosa to
    the contents of the cooler bag, including the firearms and ammunition.
[206]

On this evidence, it was open to
    the jury to find that the shared criminal activities of Lucas and Rosa, their
    joint visit to the locker, and the Blackberry connecting Rosa to the contents
    of the cooler bag, were sufficient to permit the reasonable conclusion that not
    just Lucas, but Rosa too had knowledge and control over the firearms and
    ammunition found in the cooler bag.  It was reasonable to conclude that he was
    therefore in possession of them.
[207]

This ground of appeal fails.
(13)

Did the trial judge err in his instructions to the jury regarding the
    admission of and/or use the jury could make of the box seized from the locker
    against the appellant Coyle?
[208]

Coyle was charged together with
    the appellants Lucas, Rosa and Chau with conspiracy to traffic cocaine.  The
    trial judge was therefore obliged to charge the jury about the three steps set
    out in
R. v. Carter
, [1982] 1 S.C.R. 938, at p. 947, that they were
    required to follow to determine whether the Crown had proven the conspiracy
    charge. First, the trier of fact must be satisfied beyond a reasonable doubt
    that the alleged conspiracy exists. Second, if satisfied the alleged conspiracy
    exists, the trier of fact must review all of the evidence directly admissible
    against the accused and decide his membership in the conspiracy on a balance of
    probabilities. Third, if satisfied that the accused is probably a member of the
    conspiracy, then the co-conspirator exception to the hearsay rule applies, and
    the trier of fact may consider the acts and declarations of the co-conspirators
    in furtherance of the conspiracy as evidence against the accused on the issue
    of his or her guilt beyond a reasonable doubt.
[209]

With respect to the second step,
    namely whether the evidence directly admissible against each appellant
    established his membership in the conspiracy on a balance of probabilities, the
    trial judge summarized the evidence the jury could consider with respect to
    each appellant.
[210]

In addressing the evidence
    relating to Coyle, the trial judge referred to various meetings, texts, phone
    calls and items discovered in Coyles residence and in his car. However the
    trial judge began his review of the evidence available against Coyle at step
    two by referring to the box.  He said this:
Ryan Coyle,
In terms of Ryan Coyle, you know that a cardboard box with his
    address and cell phone number was found in the storage unit at 389 Paris Road. 
    The cardboard box had a kilogram of cocaine in it.
[211]

Coyle raises two issues with this.
    His main argument is that the cocaine brick in the box could not be linked to
    him and therefore could not link him to the alleged conspiracy.  He says that
    even if his address and phone number on the label was some evidence linking him
    to the box, that did not create an evidentiary link between him and the cocaine
    brick in the box.  He says that it was highly prejudicial for the jury to
    consider this evidence at this stage, particularly since the alleged purpose of
    the conspiracy was to traffic in cocaine and since the amount of cocaine in the
    box was so large.
[212]

We agree that the trial judge
    ought not to have included the cocaine brick in the body of evidence given to
    the jury to consider at the second step of the
Carter
analysis.  There
    was simply no evidence that the cocaine in the box was to be sent to the
    address on the label or, even if it was intended to be sent to his address, there
    was no evidence Coyle had any knowledge of it.  Equally there was no evidence
    of another possibility, namely that the cocaine was being stored in the box
    which previously had been used to send something else to his address.  Both
    possibilities are merely speculation.  If not connected to Coyle, the cocaine
    in the box could not help to show that he was probably a member of the
    conspiracy to traffic cocaine.
[213]

Coyles secondary argument is that
    the box itself should not have been considered by the jury at the second step
    of
Carter
.  He says that even if the label on the box was some
    evidence linking him to the box, the label was essentially a statement by an
    unknown individual that the box was at some point destined for him and, as
    hearsay, was inadmissible against him.
[214]

We do not agree.  The label is
    better viewed as simply physical evidence that provides some linkage or
    connection between Coyle and the box.  Given that the box was found in the
    locker together with many other pieces of evidence that could be connected to
    the alleged conspiracy, the box could provide some link between Coyle and the
    contents of the locker.  If so, it could provide some circumstantial evidence
    of Coyles probable membership in the conspiracy.  This argument fails.
[215]

Although the jury ought not to
    have been left to consider the brick of cocaine as evidence against Coyle at
    the second step of
Carter
, in our opinion, no substantial wrong or
    miscarriage of justice resulted.  Apart from the cocaine brick, there was an overwhelming
    body of direct evidence pointing to his probable membership in the conspiracy
    to traffic cocaine.  This includes repeated inexplicable meetings in parking
    lots and underground garages involving odd package exchanges and
    counter-surveillance measures; the use of guarded language in texts and phone
    calls between Coyle and other alleged co-conspirators consistent with drug
    trafficking; the discovery of items in Coyles residence consistent with drug
    trafficking including a money counter, phone debugger, numerous cell phones and
    over $100,000 in cash; and, the discovery of approximately eight ounces (226
    grams) of cocaine in Coyles vehicle that expert opinion indicated was, because
    of the amount, possession for the purposes of trafficking.
[216]

Given this evidence, the jurys
    conclusion that Coyle was probably a member of the conspiracy to traffic
    cocaine would necessarily have been the same without considering the brick of
    cocaine found in the box labelled with Coyles address.  We would therefore
    apply s. 686(1)(b)(iii) of the
Criminal Code
.
[217]

This ground of appeal fails.
(14)

Were the searches of Lucas vehicle and home on March 21,
    March 25 and April 29, 2006 unreasonable?
[218]

The trial judge, Nordheimer J.,
    dealt with the general warrant search of Lucas vehicle and residence in
    reasons reported at [2009] O.J. No. 3420. The appellant Lucas submits that
    there were not sufficient grounds to permit these searches in accordance with
    the general warrants. In particular, he contends there was not sufficient
    information to meet the condition in the warrants that authorized execution
    when reasonable grounds exist to believe that the [named items] are present.
(i)

The vehicle search on
    March 21, 2006
[219]

The circumstances leading to the
    search of Lucas vehicle on March 21 are accurately summarized in the trial
    judges reasons. The determination of whether there were sufficient reasonable
    grounds for this search turns on findings of fact by the trial judge.
[220]

The undisputed facts are that police
    surveillance officers saw Lucas and Rosa drive to a parking lot. An unknown
    male drove into the parking lot and parked behind Lucas vehicle. Lucas left
    his vehicle and got into the vehicle of the unknown male. Lucas and Rosa had
    previously been seen with this man. After an animated 20 minute conversation,
    Lucas returned to his own vehicle.
[221]

The disputed evidence was whether
    the officers saw Lucas put something in the back of his vehicle. The actions of
    Lucas were being videotaped by a member of the surveillance team. However, just
    as Lucas returned to his vehicle, another vehicle pulled into a parking spot
    and blocked the view of the officer who was videotaping the events. Thus, the
    videotape did not actually show Lucas placing anything in his vehicle. However,
    the trial judge accepted the evidence of one of the surveillance officers who
    observed Lucas place a package in the rear of his vehicle. This officer
    proceeded to execute the general warrant by surreptitiously entering Lucas
    vehicle. In the rear of the vehicle, he observed a bag containing bundles of
    money, which he estimated totalled about $50,000.
[222]

At para. 12 of his ruling, the
    trial judge explained why he accepted the surveillance officers evidence that
    he believed Lucas was placing something in the rear of the vehicle. There are
    no grounds to set aside this finding. As to whether there was sufficient
    evidence to meet the reasonable grounds requirement, the trial judge said the
    following, at para. 13:
Finally on this aspect of the application, it must be remembered
    that the investigation had, by this point, collected a great deal of
    information that implicated Mr. Lucas and others in criminal activity including
    drug trafficking. The observations of Mr. Lucas must be considered against that
    backdrop. Activities such as having a conversation in a car with another person
    in a grocery store parking lot that might be inherently suspicious become more
    so when viewed against all of the other information that the police had from
    other surveillance and from intercepted communications.
[223]

This conclusion was open to the
    trial judge and the appellant has not shown any basis for interfering with this
    finding.
(ii)

The residence searches on March 25 and April 29, 2006
[224]

On March 25, the police covertly
    entered Lucas home. The investigators selected this date because they knew
    that Lucas was going to be away from his residence for an extended period of
    time. The police found various incriminating items including a hollowed-out
    book containing $10,000. The appellants challenge to the execution of the
    warrant on this date centres on the allegation that the evidence was not
    sufficiently current to justify reasonable grounds for the entry.
[225]

As the trial judge pointed out at
    para. 19 of his ruling, by the time of this search, the police had a
    considerable amount of evidence showing Lucas involvement in weapons and drug
    offences. They had the evidence obtained from the February 25 entry into the
    locker and the results of the search of Lucas vehicle on March 21 where the
    police found approximately $50,000 in cash. Given this evidence and the
    information from the wiretap and physical surveillance, there were reasonable grounds
    to believe that evidence relating to the offences would be found in Lucas
    residence. Those grounds were, as found by the trial judge, reasonably
    contemporaneous with the March 25 search.
[226]

The appellant submits that nothing
    had taken place after March 25 that could give the police grounds for the
    further search of Lucas residence on April 29. The prosecution relied upon two
    particular pieces of evidence. During a traffic stop on April 10 in connection
    with an unrelated homicide investigation, the police found materials in Lucas
    vehicles tire well that could be used to package cocaine.
[227]

In addition, on April 24, the
    police saw Lucas leave the residence of another person believed to be one of Lucas
    drug distributors. Lucas was observed to have a package under his jacket, which
    he took to his home. When the police covertly entered Lucas residence on April
    29, they found jewellery in the hollowed-out book where the $10,000 had been.
[228]

Again, we reject the appellants
    contention that there was insufficient contemporaneous information to establish
    reasonable grounds for the April 29th search. Given the information in possession
    of the police, there were reasonable grounds to believe that evidence relating
    to the offences named in the ITO would be found in Lucas residence. As found
    by the trial judge, the evidence in possession of the police was sufficiently
    recent to justify the search. Events had taken place since the March 25 search
    to give grounds for believing further evidence would be found at Lucas
    residence on April 29.
[229]

We would not give effect to these
    grounds of appeal.
(15)

Did the trial judge err by admitting evidence seized in an unreasonable
    search of Chaus vehicle pursuant to s. 24(2) of the
Charter
?
[230]

The appellant Chau argues that the
    trial judge erred in admitting the evidence seized in the warrantless search of
    his vehicle pursuant to s. 24(2) of the
Charter
: see [2009] O.J. No.
    3417
[231]

Early on in the Project XXX investigation,
    Chau was identified as a suspect who, together with Lucas, Rosa and Coyle, was
    alleged to have supplied drugs to the Doomstown Crips.  Chau was observed in
    activities believed to be drug-related, including bag exchanges with these three
    appellants. The police came to believe that Chau was supplying cocaine to these
    three individuals at the kilo or multi-kilo level.
[232]

On May 16, 2006, two days before
    the May 18 planned take-down day for the overall investigation, the police
    had Chau under surveillance from 9:15 in the morning.  In the early evening,
    Chau was observed getting into his vehicle at his home in Vaughan.  He drove to
    Coyles house in Toronto where he met up with Coyle.  They entered the
    residence, with Chau carrying a laptop bag and a white plastic bag.  Twenty
    minutes later, Chau emerged with the laptop bag, although it looked heavier and
    bulkier than when he went in.  He then drove to a restaurant in Toronto and
    went in, leaving his laptop bag in his vehicle.
[233]

The police believed that the
    laptop bag and its contents constituted evidence of a drug transaction.  They
    considered various ways of obtaining it.  Getting a search warrant presented
    the risks that Chau would not stay in any one place long enough for them to do
    so and that obtaining the warrant would alert Chau and, through him, others, to
    the ongoing investigation just two days before its culmination.  Alternatively,
    arranging for a traffic stop that could result in a search of the vehicle
    raised the concerns that it could not be set up in time and that proper grounds
    for the search would not be available.
[234]

The third option was a warrantless
    search based on the exigent circumstances that the police believed existed. 
    They could easily lose sight of Chau in downtown Toronto in the dark, and thus
    could lose the laptop bag as evidence, or at least raise continuity problems in
    respect of Chaus possession of it.
[235]

To avoid losing this evidence, the
    police had a plain clothes surveillance team member smash the drivers side
    window, grab the laptop bag and run away.  This drew the attention of
    by-standers who called 911.  When Chau emerged from the restaurant, both he and
    the uniformed officers who arrived treated the break-in as a common theft.
[236]

When the surveillance team
    examined the contents of the laptop bag, they found bundles of cash totalling
    approximately $17,000.
[237]

The appellant brought a pre-trial
    application to exclude the evidence obtained from this search.  It was decided
    by the trial judge on June 26, 2009. He found that, while exigent circumstances
    existed for the search, it was conducted in a way that was unreasonable and
    therefore violated s. 8 of the
Charter
(at paras. 16-27).  That
    conclusion is not contested in this court.
[238]

The trial judge then turned to s.
    24(2) to determine if the evidence seized should nonetheless be admitted.  He
    considered the criteria set out in
R. v. Collins
, [1987] 1 S.C.R. 265,
    and the applicable law.  He first found that the admission of this
    non-conscriptive evidence would not presumptively render the trial process
    unfair (at para. 30).
[239]

He then found that the breach of
    Chaus s. 8
Charter
rights was at the lower end of the seriousness
    scale primarily because, although the smash and grab technique used was troubling,
    the police acted in good faith, reasonably believing they had to move quickly
    to preserve the evidence or risk the broader investigation. He also observed
    that there is a much reduced expectation of privacy in a persons vehicle (at
    paras. 32-37).
[240]

Finally, he found that excluding
    the evidence would damage the administration of justice more than its admission
    because of the seriousness of the charges and the significance of the evidence
    as part of the prosecutions case against Chau (at paras. 38-40).  Balancing
    these factors, he concluded that the evidence ought to be admitted.
[241]

A few weeks after the trial
    judges ruling, on July 17, 2009, the Supreme Court of Canada released
R.
    v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353, which revised the criteria to
    be considered in applying s. 24(2).  As a result, the appellant obtained leave
    to revisit the s. 24(2) issue.  The trial judge heard submissions and then
    addressed the three
Grant
criteria in reasons reported at [2009] O.J.
    No. 3514.
[242]

As to the seriousness of the
Charter
-infringing
    conduct, the trial judge repeated his earlier conclusion that it was at the
    lower end of the spectrum.  He reiterated that, although the way the police did
    their search warranted criticism, their desire to preserve evidence reduced the
    seriousness of the breach (at para. 5).
[243]

As to the impact of the breach on
    the appellants
Charter
-protected interests, the trial judge found it
    to be lessened because of the good faith of the officers involved and given the
    lesser expectation of privacy applicable to the appellants vehicle (at para.
    7).
[244]

Third, the trial judge repeated
    that societys interest in an adjudication of these charges on the merits was
    better served by the admission of the evidence and furtherance of the
    truth-seeking function of the criminal justice process than by its exclusion
    (at para. 9).
[245]

Finally, the trial judge weighed
    these various factors and reached the same conclusion as before, namely that
    the evidence be admitted (at para. 10).  It is this conclusion that the
    appellant attacks on this appeal.
[246]

The appellant does not contest
    that the trial judge, in coming to his s. 24(2) conclusion, considered the
    proper factors.  Where this is so, and the trial judge has not made any
    unreasonable finding, this court must give considerable deference to his s.
    24(2) assessment: see
R. v. Côté
, 2011 SCC 46, [2011] 3 S.C.R. 215, at
    para. 44.
[247]

The appellant argues that the
Charter
breach was serious and that the trial judge erred in not so finding.  Contrary
    to the appellants submission, it was reasonable for the trial judge to find
    that the police acted in good faith believing they had to move quickly to
    preserve the evidence and not risk the entire investigation.  In other words,
    they had no other good option.  Moreover, there was no basis in the evidence to
    conclude that they acted in ignorance of the law.  If anything, it is implicit
    in the police evidence that they believed they had the power to conduct an
    exigent search.  Balancing these considerations against what can only be
    described as the unjustifiable method of executing the search, we cannot find
    that placing this search on the less serious end of the spectrum is
    unreasonable.
[248]

Nor do we find unreasonable the
    trial judges conclusion that the impact on the appellants
Charter
-protected
    interests was less severe because of his lesser expectation of privacy in his
    vehicle.
[249]

Finally, we agree that the
    seriousness of the charges and the importance of their adjudication on the
    merits required admission of this evidence not its exclusion.
[250]

Overall, the balancing of these
    factors rendered a result that we cannot say was unreasonable.
[251]

This ground of appeal therefore
    fails.
(16)

Did the removal of the knock and notice requirements in the take-down
    warrants violate the appellants s. 8
Charter
rights?
[252]

The take-down warrants executed on
    May 18, 2006 authorized the police to enter and search the residences of the
    appellants and, at the same time, to effect their arrests in the residences. 
    The warrants authorized the police to enter the premises without knocking or
    giving notice to the occupants. The authorizing judge was of the view that it
    was unnecessary to issue a separate warrant authorizing the arrest of each
    person while the searches were being carried out (so-called Feeney
    warrants).  The appellants do not challenge that aspect of the warrants in this
    court.
[253]

The appellants argue that the
    execution of these warrants was unreasonable in three respects.
[254]

The legal context for all three
    arguments is that in order to conduct a reasonable search of a dwelling house,
    the police should, except in exigent circumstances, give the occupants notice
    by knocking or ringing the doorbell, identify themselves as law enforcement
    officers, and state the lawful reason for their entry.  Where the police depart
    from the knock and notice approach, there must be evidence available to them
    at the time they acted, that they thought it necessary to dispense with knock
    and notice because they had reasonable grounds to be concerned about harm to
    themselves or the occupants, or about the destruction of evidence: see
R.
    v. Cornell
, 2010 SCC 31, [2010] 2 S.C.R. 142, at paras. 18 and 20.
[255]

The appellants Lucas and Rosas first
    argument is that the execution of the warrants against them could not be said
    to be in exigent circumstances because the police could have arrested them the
    previous evening when Lucas was out with his wife and Rosa was also present. 
    Lucas and Rosa say this would have avoided the necessity for the dynamic entry
    of their residences the next morning.
[256]

In reasons reported at [2009] O.J.
    No. 5333, the trial judge dismissed this argument.  He found, at para. 17, that
    the evidence made it obvious that a synchronized approach to the searches and
    arrests was necessary to prevent some targets from alerting others, leading to
    the real possibility of the destruction of evidence and the escape of intended
    targets.  Arresting Lucas and Rosa in the mall parking lot would have possibly
    been fatal to the needed synchronized approach.  Moreover, the arrests of Lucas
    and Rosa in a public place could have put the safety of the police and the
    public at risk since they were both believed to be trafficking guns and drugs
    to a violent gang (at para. 18).
[257]

The trial judges assessment of
    this evidence must be given substantial deference on appellate review:
Cornell
,
    at para. 25. Moreover, it is an assessment with which we agree.  There was
    ample evidence before the trial judge that the arrests of Lucas and Rosa in the
    mall parking lot would have created a real risk of evidence destruction and
    harm to the police or the public.  Avoiding these risks does not render the
    dynamic entry of the residences early the next morning unreasonable.
[258]

This argument fails.
[259]

Second, the appellants say that
    the execution of these warrants was unreasonable because they were effected
    entirely on the basis of an operational plan to coordinate all searches, which
    all were to be made on a no-knock basis, without considering the particular
    circumstances of each entry.
[260]

However, as the trial judge
    pointed out, one of the lead investigators testified before him on the
voir
    dire
that, despite the overall plan, in each case the team leader had to
    make his or her own determination prior to executing the warrant that a
    no-knock entry was justified. That evidence is fatal to this argument.
(17)

Did the trial judge err by finding that the dynamic entry search of
    Chaus residence was reasonable and by failing to exclude the evidence seized
    during the search?
[261]

The appellant Chau contends that
    the police had no basis to effect a no-knock forced entry of his residence.  He
    says that the police had no information linking Chau to violence or firearms
    and therefore no basis for concern about officer safety if they did not use a
    dynamic entry.
[262]

In reasons reported at [2009] O.J.
    No. 5333, the trial judge dismissed this argument for two reasons.  He
    concluded that the information the police had about Chaus direct connection
    with Lucas and Rosa (who had access to firearms), raised the possibility that
    Chau might well have come to possess a firearm from them.  He also found that
    the information indicating that Chau was a high-level dealer in the notoriously
    dangerous business of drug-dealing, where many have firearms for their own
    protection, raised an additional concern for officer safety if a dynamic entry
    was not used (at para. 19).
[263]

In our view, there was ample
    evidence for the trial judge to take this view of the evidence and to conclude
    that these exigent circumstances justified the use of a no-knock entry of
    Chaus residence.
[264]

This ground of appeal therefore
    fails.
(18)

Did the trial judge err by allowing the Crowns expert witness to
    comment in his evidence in chief on a hypothetical conversation?
[265]

The appellant Coyle argues that
    the trial judge erred in allowing an expert witness to give opinion evidence
    about the meaning of coded language in a hypothetical conversation between drug
    dealers. Coyle says that the hypothetical conversation was not meaningfully
    different from the actual intercepted communications that were in evidence. He
    says that the Crown effectively sought to have the expert offer an opinion on
    the ultimate question for the jury, namely the meaning of the actual
    conversations. For that reason, he argues the opinion should have been
    excluded.
[266]

By way of background to this
    ground of appeal, the expert in question was Detective Constable Canepa. All
    parties agreed that he was qualified to give opinion evidence on the use of
    coded or guarded language between drug dealers in their dealings and that
    expert evidence about this was relevant and necessary to assist the jury. No
    issue was taken with the expert opining that certain communications were
    consistent with them being communications about drugs (although the risk of
    misunderstanding from the phrase consistent with is now well-known, see
e.g.
,
The Report of the Inquiry into Pediatric Forensic Pathology in Ontario
(Toronto:
    Queens Printer for Ontario, 2008) v. 3, p. 433).
[267]

At trial the Crown sought to have D.C.
    Canepa testify about the meaning of the actual communications tendered in
    evidence.  The various defence counsel generally took the position that the
    expert testimony should be restricted to advising the jury that coded language
    is often used amongst drug dealers and, at most, giving the jury a glossary of
    terms typically used.
[268]

The trial judge ruled that D.C. Canepa
    could not be asked if the actual intercepted communications were consistent
    with them being communications about drugs because of his concern that this
    would usurp the jurys fact-finding role on the ultimate issue in the trial. 
    However, he permitted the Crown to elicit opinion evidence about a hypothetical
    conversation similar to the actual conversations that the Crown alleged to be
    coded.
[269]

At trial, counsel for the
    appellants Lucas, Rosa, Coyle and Chau took different positions in response to
    the trial judges approach to the presentation of the expert evidence. Counsel
    for Lucas and Chau did not oppose the use of a hypothetical conversation, while
    counsel for Rosa opposed any hypothetical that might include buzz words taken
    from the actual intercepts. In contrast, counsel for Coyle contended that if
    any conversation was to be put to the expert witness, it should be from the
    actual intercepts and not a hypothetical one. The trial judge refused to accede
    to counsel for Coyles position.
[270]

In oral argument before this court
    the appellant says that D.C. Canepas opinion should not have been admitted
    because it addressed the ultimate issue for the jury.
[271]

We would not give effect to the
    appellants position.  There is no longer a general prohibition on expert
    evidence in respect of the ultimate issue: see
R. v. Mohan
, [1994] 2
    S.C.R. 9, at p. 24.  As explained in
R. v. Abbey
, 2009 ONCA 624, 97
    O.R. (3d) 330, at para. 84, the gatekeeper function of the trial judge
    concerning the admissibility of expert evidence requires an assessment of the
    costs and benefits of admitting the evidence as part of determining its legal
    relevance.  Part of the costs side of the ledger is a risk assessment of the
    extent to which a jury faced with an opinion from a recognized expert may
    abdicate its fact-finding role in favour of the conclusion reached by someone
    said by the court to be more qualified.  The closer the opinion evidence comes
    to the ultimate question the jury must answer, the more this risk may be
    heightened.
[272]

In discharging his gatekeeper
    responsibility, the trial judge determined that permitting D.C. Canepa to give
    his opinion about the meaning of a hypothetical conversation using similar language
    to the actual conversations reduced that risk sufficiently, while still
    remaining useful to the jury.  Defence counsel were permitted to conduct
    vigorous cross-examinations of D.C. Canepa during which he confirmed that he
    could not speak definitely about the true meaning of the intercepts.
[273]

The assessment as to whether the
    expert should have been permitted to give his opinion on the meaning of a hypothetical
    conversation that was similar to an actual conversation between the accused was
    best made by the trial judge in the context of the  trial, particularly in a
    case where counsel for the accused took conflicting positions on this issue. 
    Here the trial judge made the assessment in the context of all the
    circumstances and admitted the evidence. That conclusion is entitled to
    deference on appeal: see
Abbey
,
at
para. 97.  We see no basis
    to interfere with it here.  It was entirely reasonable in the circumstances.
[274]

This ground of appeal is
    dismissed.
DISPOSITION
[275]

For these reasons, we dismiss the
    appeals of all five appellants.
Released: MR July 23, 2014
M. Rosenberg J.A.
S.T. Goudge J.A.
K.M. van Rensburg
    J.A.

[1]
Title III of the
Omnibus Crime Control and Safe Streets Act
, 18 U.S.C.A.,
    §§ 2510-20.
