



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Duncan, 2021 ONCA 673

DATE: 20211001

DOCKET: C63885

Doherty, Rouleau and Miller
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Davide Duncan

Appellant

Anne Marie Morphew and Karen Symes, for
    the appellant

Christopher Webb, for the respondent

Heard: March 31, 2021 by video conference

On appeal from the conviction entered by
    Justice Michael Code of the Superior Court of Justice on February 4, 2016.

REASONS FOR DECISION

[1]

The police seized 30 kilograms of cocaine from an
    apparently empty cargo container found on the tarmac in a secure area of Pearson
    Airport. The main issues at trial were whether the appellant and his two co-accused
     employees of a cargo company working in the secure area  were part of a
    conspiracy to import the cocaine, or aided and abetted the importation of
    cocaine. The appellant denied any involvement in the importation of cocaine. He
    did not seriously contest that he was engaged in a criminal conspiracy with his
    co-accused, but argued that the evidence was more consistent with a conspiracy
    to steal baggage than to import cocaine. The three accused were convicted after
    a trial by jury of aiding or abetting the importation of cocaine and of conspiracy
    to import cocaine.

[2]

The most important evidence at trial was
    intercepted telephone and text message communications among the three accused. Wiretap
    evidence showed the accused coordinating with each other to locate and retrieve
    a shipping container with a particular identification number from the secure
    area of the tarmac.

[3]

The appellant challenged the judicial authorization
    for the wiretap evidence at a pre-trial
Garofoli
hearing:
R v.
    Garofoli
, [1990] 2 S.C.R. 1421. The basis for the challenge was that the affidavits
    in support of the wiretap application were not only seriously misleading, but fraudulent,
    and were therefore incapable of remedy by excision or amplification. The motion
    judge found no intention to mislead, and held that the errors in the supporting
    affidavits were minor and correctable through excision and amplification. He dismissed
    the application and admitted the evidence from the wiretaps. The appellant and
    his co-accused were subsequently convicted.

[4]

The appellant argues on appeal that the wiretap
    evidence was obtained in a manner that violated his right under s. 8 of the
Canadian
    Charter of Rights and Freedoms
not to be subjected to unreasonable search
    or seizure. He argues that the wiretap evidence ought to have been excluded by
    the motion judge pursuant to s. 24(2) of the
Charter
.

[5]

The appellant also argues that the trial judge
    erred in instructing the jury as to the burden of proof.

[6]

For the reasons that follow, the appeal is dismissed.

I.       The application to exclude the phone records and
    intercepted communications

The general argument against admissibility

[7]

The Crown relied on evidence gained through
    several production orders, a digital number recorder (DNR) order, and a wiretap
    authorization. On a pre-trial application, the defence argued that none of the
    orders were properly obtained and that, absent a proper order, any evidence
    obtained via these various orders breached s. 8. The focus of the argument was
    on the affidavit used to obtain the first production order. The appellant
    argued that affidavit was replete with errors and material omissions. The
    appellant argued that once those errors were deleted and the exculpatory
    material improperly omitted added, there was no basis upon which the production
    order could have been granted. The appellant also argued that if the first
    production order fell, the subsequent orders, including the wiretap
    authorization, should fall as well. Similarly, if the first production order
    stood, the subsequent orders should stand, subject to one additional argument
    limited to the validity of the wiretap authorization, considered below.

[8]

At the pre-trial
Garofoli
hearing, the defence
    attacked the honesty of the officer who swore the affidavit in support of the
    initial production order. That attack failed. The motion judge was satisfied that
    the errors contained in the officers affidavit were not deliberate or intended
    to mislead. He described them as innocent mistakes. The appellant does not
    challenge that finding on appeal, but now argues that the motion judge made another
    error: having determined the affiant was not intentionally misleading the court,
    the motion judge failed to consider whether the various errors in the affidavit
    in support of the initial production order could be rectified through
    amplification or excision.

[9]

The appellant submits that important parts of
    the affidavit used to obtain the initial production order were inaccurate,
    misleading, and demonstrated a failure by the affiant to make the full and
    frank disclosure required on an
ex parte
application:
R. v. Booth
,
    2019 ONCA 970, (2019)

386 C.C.C. (3d) 281, at para. 54. He submits that the motion judge
    erred by using amplification to correct these inaccuracies, because they were
    not minor, technical, or made in good faith, as inaccuracies correctable by
    amplification must be:
R. v.

Araujo
, 2000 SCC 65, [2000] 2
    S.C.R. 992, at para. 59. Had the motion judge instead removed the inaccurate
    information from the affidavit, the appellant argues, the affidavit could not
    have supported the first production order.

[10]

One of the affiants inaccuracies, which the
    appellant argues was not of a nature that could be remedied  and typical of
    the several errors raised by the appellant   was the affiants account of what
    he observed on a surveillance video taken inside the Cargo Zone warehouse. The
    affiant stated in the affidavit used to obtain the initial production order that
    in watching the video, he, observed DUNCAN attempt to take possession of cargo
    container AKE 2219 TS, within approximately an hour of CBSA seizing and
    removing cargo container AKE 2290 TS from the Cargo Zone warehouse.

[11]

What the affiant was actually able to observe
    from the video was a person enter the warehouse, stand near another person who
    was already there, and then leave again. As the motion judge noted, the identities
    of the figures who appeared on the video were indiscernible. Further, the
    videos did not show the person believed to be Mr. Duncan doing anything
    suggestive of an attempt to take possession of cargo container AKE 2219 TS. Mr.
    Duncan is not seen next to a container, pointing to a container, touching a
    container or moving a container in these videos. In short, the affiants statement
    went beyond his actual observations and any inferences that could be unambiguously
    drawn from those observations.

[12]

The motion judge, however, accepted that amplification
    was available to explain how the affiant came to believe that the video
    depicted the appellant in the warehouse trying to take possession of the
    container: the other party depicted in the video told the affiant that it was
    the appellant, and told the affiant that the appellant had asked him to put
    container 2219 outside for the appellant to take. The affiant learned this
    information after he first viewed the video, but before swearing his affidavit.
    His affidavit included the source of this information, the date on which he
    received it from the other party depicted in the video, and the date on which
    he first viewed the video.

[13]

In short, the inaccuracy was the result of the
    affiant conflating information received from different sources into a statement
    suggesting the information came from the single source identified in that
    statement. The correct sources of the information could, however, be found in
    the affidavit.

[14]

We are satisfied the motion judge did not err in
    the manner in which he exercised his discretion with respect to the
    amplification of the videotape evidence, the amplification of the sources upon
    which the alleged facts were based, or the excision of certain erroneous
    statements from the affidavit. Amplification of an affidavit is a flexible
    remedy. A motion judge has a broad discretion. In exercising that discretion,
    the nature of the defect in the affidavit is important. If the affiant acted
    honestly and in good faith in preparing and presenting the affidavit,
    amplification or excision of parts of the affidavit must be considered by the
    motion judge.

[15]

Even if the affiant acted honestly and in good
    faith, amplification of the affidavit cannot go so far as to undermine the
    requirement of prior judicial authorization for the warrant or the order. Nor,
    however, is amplification limited to errors or omissions in the affidavit which
    are so minor as to have little, if any, relevance to the ultimate legality of
    the authorization.

[16]

Most of the inadequacies in the affidavit were
    failures of draftsmanship and, in particular, failures to properly source the
    facts asserted in the affidavit. In other words, the affiant did not adequately
    set out the chain of reasoning that led him to come to certain conclusions upon
    which he based the application. Although it is important that the affidavit be
    properly sourced, the failure to do so is not inherently misleading, especially
    in light of the motion judges finding that the affiant acted honestly and in
    good faith.

[17]

As with most decisions that involve the exercise
    of discretion, legitimate arguments can be made favouring the exercise of the
    discretion differently than it was exercised by the trial judge. That is not
    enough to warrant appellate intervention. The amplifications and excisions made
    by the motion judge are consistent with the kinds of corrections that have been
    made in cases such as
R. v. Araujo
, at paras. 60-61;
R. v. Plant
, [1993] 3 S.C.R. 281, at pp.
    298-99; and
R. v. Lall
, 2019 ONCA 317, 432 C.R.R. (2d) 195, at para.
    39.

The evidence connecting the appellant to
    organized crime

[18]

The appellant also argues that the motion judge should
    have satisfied himself that the wiretap was an investigative necessity, and failed
    to do so. The motion judge did not consider whether the wiretap was an
    investigative necessity because he was satisfied that the application to
    authorize the wiretap was made in relation to an offence committed for the
    benefit of a criminal organization, which brought it within the exception in s.
    186(1.1) of the
Criminal Code
, R.S.C. 1985, c. C-46. The
    appellant argues that once all the evidence obtained pursuant to the production
    orders is properly excluded, the affiant did not present enough evidence
    connecting the appellant and a criminal organization to bring the wiretap
    authorization within the s. 186(1.1) exception.

[19]

We do not agree that the motion judge erred. The
    appellants argument is dependent on the motion judge having erred in his amplification
    and excision of the original affidavit in support of the initial production
    order, and that error flowing through to the affidavit in support of the
    wiretap authorization. As explained above, the motion judge made no error in
    amplifying and excising the original affidavit in support of the initial
    production order, and so the attack on the wiretap authorization necessarily
    fails. The affidavit provided in support of the wiretap authorization provided
    a basis upon which the issuing judge could conclude there was a connection
    between the appellant and the organized crime group. That finding disposes of
    the ground of appeal. We should not be taken, however, as necessarily agreeing
    with the appellants submission that the affiant was required to demonstrate the
    connection between the appellant and the organized crime group to obtain the
    authorization sought.

II.       The jury instruction

argument

[20]

The appellant acknowledges that the initial
    instructions on circumstantial evidence and the burden of proof were correct.

[21]

We do not accept that the trial judge erred in
    his subsequent instructions. He did not, as the appellant contends, instruct
    the jury that the accused were entitled to an acquittal only if the defence
    interpretation of the circumstantial evidence was equally consistent with the
    Crowns version. In those portions of the instruction, the trial judge was
    referring to the submissions put by counsel to the jury. The trial judge
    followed his reference to those submissions with a repetition of the burden of
    proof as it applies to circumstantial evidence:

Obviously, as I have repeatedly instructed
    you, do not assess the credibility and reliability of the Crown evidence or the
    defence evidence in isolation, but only upon a consideration of all of the evidence.
    The fundamental purpose of the above instruction is to make sure you do not
    decide whether something happened in this case, simply by comparing one version
    of events against another opposing version of events and then choose the one
    you prefer or the one you think is somewhat better than the other. That kind of
    analysis reduces the burden of proof  regardless of how you resolve issues of
    credibility and reliability in this case you can only convict an accused of an
    offence, if you are satisfied beyond a reasonable doubt on all the evidence he
    committed the essential elements of the offence. So thats simply a reminder at
    the end of the charge, to properly apply the burden of proof even though it was
    yesterday morning you heard me instruct you on it.

[22]

The above-quoted passage correctly sets out the
    burden of proof and also reminds the jury of the earlier instructions on the
    burden of proof, which everyone agrees were accurate.

[23]

The trial judge made no error.

Disposition

[24]

The appeal is dismissed.

Doherty J.A.

Paul Rouleau J.A.

B.W. Miller J.A.


