Page 1 Case Name: R. v. Serré Between Her Majesty the Queen, and Diane Serré [2011] O.J. No. 6413 2011 ONSC 3944 Court File No. 05-30105 Ontario Superior Court of Justice C.D. Aitken J. Heard: May 18, 2011. Judgment: June 24, 2011. (47 paras.) Counsel: Michael Boyce and Carl Lem, for the Crown. Natasha J. Calvinho and J. Michael Spratt, for the Accused. Reasons on Garofoli Application Part III: Prerequisites for Authorization C.D. AITKEN J.:-- Nature of Proceedings 1 The Accused argues that the affidavit provided to McKinnon J. in July 2004 in support of a wiretap authorization ("July ITO"), as amplified through the record of proceedings on this Garofoli
Page 2 application, did not provide sufficient grounds for the granting of the July wiretap authorization. Minimum Statutory and Constitutional Requirements 1 2 Wiretaps constitute a search and seizure within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms 2 (R. v. Duarte, [1990] 1 S.C.R. 30 [Duarte]). Under s. 8 of the Charter, everyone has the right to be secure against unreasonable search or seizure. This has been interpreted as meaning that prior judicial authorization is required for a wiretap, and any wiretap conducted without such prior judicial authorization constitutes an unreasonable search or seizure (Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at 168 [Hunter]; R. v. Garofoli, [1990] 2 S.C.R. 1421 at para 33 [Garofoli]). 3 Section 186(1) of the Criminal Code, R.S.C. 1985, c. C-46 states: 186(1) Judge to be satisfied - An authorization under this section may be given if the judge to whom the application is made is satisfied (a) (b) that it would be in the best interests of the administration of justice to do so; and 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 this investigation of the offence using only other investigative procedures. 4 Section 186(1)(a) has been found to meet the constitutional requirements of s. 8 of the Charter and to mean that the judge issuing the wiretap authorization must be satisfied that there are reasonable and probable grounds to believe that an offence has been, or is being, committed and that the interception of the private communication(s) in question will afford evidence of that offence (Hunter; Duarte at 45; Garofoli at paras 33-36, 53). In addition, under s. 186(1)(b), the judge must be satisfied of the requirement of investigative necessity. Standard of Review 5 An accused whose private communications have been intercepted by way of a judicially-authorized wiretap has the right under s. 8 of the Charter to challenge the constitutionality of that wiretap and therefore the admissibility of any evidence collected as a result of that wiretap. The standard of review regarding the wiretap authorization was articulated by Sopinka J. in Garofoli at para 56: If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then [the reviewing judge] should not interfere. In this
Page 3 process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. 6 My function as the reviewing judge is not to substitute my view for that of the authorizing judge, but is, instead, to determine whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued (R. v. Araujo, [2000] 2 S.C.R. 992 at para 54 [Araujo]). Omissions, Misstatements, Overstatements and Misrepresentations Legal Principles 7 The legal obligation on anyone seeking an ex parte application is full and frank disclosure of material facts. "The moving party must state its own case fairly and must inform the Court of any points of fact or law known to it which favour the other side" (United States of America v. Friedland, [1996] O.J. No. 4399 (Gen. Div.) at para 26). 8 In the context of an application for a wiretap authorization, the supporting affidavit must set out the facts fully and frankly, and hopefully clearly and concisely, so that the authorizing judge can assess whether they rise to the standard required in the legal test for authorization. This requires the affiant to disclose information known to the affiant which tends to disprove the existence of either reasonable and probable grounds or investigative necessity. The affidavit must not focus only on the information supportive of establishing these grounds. As well, it is important that the affidavit be drafted in such a fashion so as not to mislead the authorizing judge in any way. The affidavit "need not include every minute detail of the police investigation over a number of months and even of years". But it should fairly and accurately recount all relevant and material information that would enable the authorizing judge to properly balance the competing interests of law enforcement and the protection of privacy rights (Araujo at para 46). 9 That portion of evidence in the original affidavit which is subsequently proved to be erroneous must be excised. If the information was erroneous despite good faith on the part of the affiant, amplification may correct this information. However, amplification must not be used to remove the requirement that the police make their case to the authorizing judge, and not after the fact to the reviewing judge. "[T]o refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made some minor, technical error in the drafting of their affidavit material" (Araujo at para 59). 10 There has been much debate as to the extent to which amplification is available to the reviewing judge. In R. v. Plant, [1993] 3 S.C.R. 281 [Plant], the affidavit stated that a tipster had provided a particular address to the police. In fact, the tipster had provided a description of the
Page 4 residence to the police and the police through other investigative techniques had been able to determine the precise address. Sopinka J. concluded that, in considering the material that was properly before the authorizing judge, only the information actually obtained from the tipster should be included. But he went on to say that this information could be amplified by reference to the fact that the police had been able to locate a residence matching the description which they had been given. 11 In R. v. Morris, 173 N.S.R. (2d) 1, 134 C.C.C. (3d) 539 (C.A.) [Morris], Cromwell J.A. (as he then was), after reviewing Canadian and American jurisprudence dealing with the issue of amplification, concluded at para 90:... in a s. 8 voir dire challenging a warrant issued pursuant to an Information to obtain which is valid and adequate on its face, evidence is admissible to explain non-deliberate errors or omissions on the review provided that the information was known to the police officers involved in obtaining the warrant at the time it was obtained and subject, of course, to the requirement that unconstitutionally obtained evidence cannot be considered. 12 Both the Plant and Morris cases predated Araujo but were not disapproved of in that decision. In both cases, the amplification allowed went beyond correction of minor, technical errors. 13 In R. v. Pilarinos, 2001 BCSC 1844, 56 W.C.B. (2d) 652, Bennett J. (as she then was), after a review of relevant jurisprudence, concluded that although it would be wrong to permit a defective authorization to be totally rehabilitated by amplification during a review process, amplification was not limited to minor technical errors in drafting made in good faith. At paras 30-31, she went on to permit cross-examination of the affiant as follows: I conclude that the Crown is permitted to cross-examine Corporal Taylor in order to put before the court all of the evidence necessary for me to determine if there were misleading statements, material non-disclosure, misrepresentation, whether the police should have known the informant was not reliable, whether the police did not properly follow other investigative techniques, and so on. In short, any area the defence canvassed in its cross-examination, the Crown may also review, subject to the limitations I place below. The Crown may also elicit evidence on the issue of good faith, and whether there was a deliberate intention to mislead the authorizing judge. I also conclude from Araujo and Morris that the fact the evidence is before me does not mean that I may automatically use it to amplify the record in order to sustain the authorization. I may use the evidence to determine whether there is evidence that must be excised from the affidavit. Errors made in good faith may be amplified on review once the erroneous information is excised, keeping in
Page 5 mind the principles enunciated in Araujo. Alleged Omissions, Misstatements, Overstatements and Misrepresentations 14 In regard to the completeness of the information presented in the July ITO, the Accused points to the following omissions revealed in the Crown's disclosure documents: * the third confidential informant ("CI3") provided the name of "Adrien" as another person within Citizenship and Immigration ("CIC") with whom Dakik dealt, and that there was a hearing officer by the name of Adrien Duford with the Ottawa CIC office. This information was not contained in the July ITO. * The sixth confidential informant ("CI6") referred to Dakik as "Essam Cherabeye" but this information was not contained in the July ITO. 15 In regard to inaccurate or misleading information in the July ITO, the Accused alleges the following: * The July ITO referred to three cases investigated by Carol Jong ("Jong") of CIC and stated that the Accused had been involved in two of the three cases. The July ITO did not state that Jong had in fact investigated eight cases. * The July ITO stated that Jong had advised that the cases she had investigated had been expedited, without providing details of the average time in which cases are normally handled and the time in which the cases associated with the Accused were handled. * The July ITO described confidential CIC documents relating to one "Roger Harper" being found in the garbage from the Accused's home without stating that Harper was the Accused's spouse. * The July ITO speaks of cell number 613-612-1622 being Dakik's number without clarifying that the cell number was actually registered to his wife. 16 In regard to overstating the case in the July ITO, the Accused points to the following: * The Executive Summary of the July ITO stated that the RCMP had received information from six confidential informants. In the same paragraph it stated that Dakik had received the assistance of a contact within CIC by the name of "Diane", without clarifying that only one source had identified Diane. * In a summary discussion on p. 104 of the July ITO, it stated that four confidential informants stated that Dakik associated with a female employee of CIC by the name of "Diane". Although four informants had stated that Dakik had an associate within CIC, only one identified that
Page 6 contact as "Diane". Analysis 17 First, it is important to note that in preparing ITOs, police are not expected to include every piece of information they have garnered through their investigations. They are expected to use reason and common sense in drafting a document that provides full, frank and fair disclosure of material facts to meet the requirements of authorization, without being unnecessarily detailed or tangential (R. v. Villa, [1988] O.J. No. 10 (H.C.); R. v. Adam, 2006 BCSC 382, [2006] B.C.J. No. 536 at para 48 [Adam]). After reading the July ITO and hearing the evidence of Ste-Marie as to the efforts he took in its preparation, I find that he prepared the July ITO in a painstaking fashion in an effort to be as thorough and accurate as possible, and to an impressive extent, he succeeded in his goal. 18 Second, it is to be expected that a 138-page affidavit recounting the details of a complex investigation lasting over 16 months might contain some minor errors or omissions and might have sections which, with further time and consideration, could have been better drafted. However, perfection is not the standard (R. v. Melenchuk (1993), 24 B.C.A.C. 97 at para 15; Adam at paras 70-73). I find that there were only a few minor errors or omissions which were not material in the context of the affidavit considered as a whole. 19 Third, statements in ITOs and omissions are not to be considered in isolation, but instead are to be considered in the broader context of the affidavit as a whole and the investigation it describes. It is in this context that the authorizing judge would have considered the statement or would have been impacted by the absence of certain information (R. v. Bisson, [1994] 3 S.C.R. 1097 at para 2; Adam at paras 73-74; R v. Buckingham, 2007 NLTD 88, 271 Nfld. & P.E.I.R. 226 at para 10). Again, although there were some misstatements and drafting inconsistencies in the July ITO, none were material in the context of the other information contained in the affidavit, and their correction would not have undermined the existence of grounds to authorize the wiretap. 20 Fourth, I find that in preparing the July ITO, Ste-Marie was acting in good faith and was using his best efforts to complete the task appropriately and according to legal requirements. 21 I will now consider the particular issues raised by the Accused and explain my reasons for deciding that they do not - either individually or collectively - undermine the authorizing judge's decision to allow the wiretap. (a) Adrien 22 The following statements can be found in the Source Report relating to CI3: 1. Source states that Issam DAKIK has the power to influence the Immigration status of people in Canada because of the contact(s) he has
Page 7 inside Citizenship and Immigration Canada. (UR)... 13. Source spoke of Adrien as another person within Immigration with whom DAKIK deals with. (UR) * Knowledge of handler confirms that verification with CIC Officer that a person by the name of Adrien Duford is a hearing's officer with CIC Ottawa. 23 This information was not included in the July ITO when the information gleaned from CI3 was summarized. Ste-Marie offered several reasons for its omission. As a result of the wording of the Source Report itself, Ste-Marie concluded that CI3 was referring to Adrien as another potential contact of Dakik's - not the only contact. As far as Ste-Marie was aware, none of the investigators had a description of Adrien, no surveillance had been conducted on him, and none of his communications had been intercepted. The previous search warrant issued in regard to Dakik's cellular telephone records had not produced evidence that Dakik was communicating with a telephone linked to Adrien Duford of the Ottawa CIC office. On the other hand, there was evidence that Dakik and the Accused had communicated 78 times by telephone. There were surveillance reports showing the Accused at Dakik's residence on four occasions and at his wife's place of business on three occasions. I accept the evidence of Ste-Marie that he simply did not consider the evidence regarding Adrien to be particularly material to the investigation of the relationship between the Accused and Dakik. I accept Ste-Marie's evidence that, in omitting any reference to Adrien, he was not attempting to mislead the authorizing judge. 24 For the sake of completeness, the July ITO will be amplified to clarify that CI3 stated that Issam Dakik has the power to influence the immigration status of people in Canada because of the contact(s) he has inside Citizenship and Immigration Canada. Reference will also be made to CI3 speaking of Adrien as another person within Immigration with whom Dakik deals and to the fact that a person by the name of Adrien Duford is a hearing officer with CIC Ottawa. The Crown acknowledged that this information is of relevance to the overall immigration fraud investigation and it should have been included in the July ITO. This is especially so when Ste-Marie had decided to make reference in that document to two other names mentioned by confidential informants; namely, Suzy and Mike. There was no clear rationale for including reference to those names while deleting reference to Adrien. Since there was an Adrien at the Ottawa CIC offices at the time of the investigation, and since there was less information as to who Suzy and Mike might be, there was a stronger case for including reference to Adrien. That being said, the fact that a person by the name of Adrien came to light during the investigation did not take away from the significant amount of evidence the RCMP had collected that linked the Accused to Dakik.
Page 8 (b) Essam Cherabeye 25 The sixth confidential informant ("CI6") referred to Dakik as "Essam Cherabeye" but reference to "Cherabeye" was not included in the July ITO. Ste-Marie explained that he had not mentioned this last name because he did not consider it material. The same informant had provided a telephone number for "Essam Cherabeye", and that number was the residential telephone number of Issam Dakik. 26 I accept Ste-Marie's explanation. Including "Cherabeye" in the summary of the information from CI6 would have had marginal, if any, significance in the context of the overall investigation and the grounds for authorizing the wiretap in question. In any event, for the sake of completeness, the July ITO will be amplified to include reference to this name in the section dealing with CI6. (c) Roger Harper 27 The July ITO described confidential CIC documents relating to one "Roger Harper" being found in the garbage from the Accused's home without stating that Harper was the Accused's spouse. Although it was not explicitly stated in the paragraph referring to the garbage that Harper was the Accused's spouse, that paragraph did list Harper's address as being the same as the Accused, and his telephone number as being the same as one of the telephone numbers previously linked in the July ITO to the Accused. As well, in a further paragraph in the July ITO, it was stated that in documents the Accused had previously filed with the Ottawa police, she had listed that telephone number as being her telephone number. Therefore, in the July ITO, there was already information indicating that the Accused and Harper resided together. Whether they were officially spouses was of marginal, if any, additional interest. In any event, since this was information the RCMP had at the time, for the sake of completeness the July ITO will be amplified to state in the paragraph referring to the seizure of garbage at 428 Sandhamn Private that Harper was the Accused's spouse. That conclusion does not minimize the significance of there being a confidential FOSS printout relating to Harper found in the garbage at that residence. (d) Dakik's cell phone number 28 The July ITO speaks of cell number 613-612-1622 being Dakik's number without clarifying that the cell number was actually registered to his wife. This omission is not material in that there was evidence that Dakik used this cell phone. (e) Jong Letter 29 The July ITO referred to three cases investigated by Jong of CIC and stated that the Accused had been involved in two of the three cases. The Accused alleges that it was misleading for the July ITO not to state that Jong had reviewed a total of eight cases and for the July ITO to quote Jong as saying that the cases she had investigated had been expedited when Jong spoke of two cases having been expedited.
Page 9 30 The Accused's complaints in regard to the Jong letter are not compelling. First, in her letter Jong stated that she had reviewed the CIC files in addition to the FOSS records for only three of the eight cases she had considered. These three files were the only files where applications had been granted by the time Jong completed her report. The other files were still in progress or the applications had been denied. Although it made sense for Ste-Marie to refer only to the three files that had been completed, instead of all eight files, for the sake of completeness the July ITO will be amplified to include reference to Jong having reviewed eight files in total. 31 Second, the July ITO reported Jong as saying that "the cases had been expedited, thereby considerably shortening the normal processing time required to obtain immigration status in Canada". The Jong letter actually stated that "two of the three cases were finalised quicker than the norm". The July ITO will be considered amended in this regard. The Accused complains that the norm was not explained in the July ITO, as it had been in the Jong letter; however, this complaint is without merit. The 14 to 16 month normal timeframe to process files of this nature was referred to in paragraph 3.053 of the July ITO at the top of page 92. The Accused also complains that the impression was left in the July ITO that the Accused was responsible for expediting the files. Again this complaint is without merit. The July ITO clearly stated that another person at CIC had approved the files and that the Accused was personally involved in only two of the three cases. (f) Summary Statements 32 The Executive Summary of the July ITO stated that the RCMP had received information from six confidential informants between May 27, 2003 and January 13, 2004. The paragraph went on to speak of "all four" in reference to the confidential informants. Although there were four informants between the two dates given, there were a total of six informants between March 7, 2003 and April 8, 2004. In the same paragraph it stated that Dakik had received the assistance of a contact within CIC by the name of "Diane", without clarifying that only one source had identified Diane. Ste-Marie acknowledged that parts of this paragraph were improperly worded through error. I accept his evidence that he was not in any way trying to mislead the authorizing judge. I note that in the body of the July ITO, Ste-Marie meticulously recounted full details of the information received from each informant and full details of all of the other investigative measures, including surveillance, undertaken to date by the RCMP. During that detailed description of the information received from confidential informants, Ste-Marie accurately stated that only one informant had identified "Diane" at CIC as being Dakik's contact. 33 The Executive Summary at (D)(i) at p. 6 of the July ITO will be considered amended so as to correct these misstatements. In the first sentence, reference will be made to the dates of March 7, 2003 and April 8, 2004. In the second sentence, reference will be made to "all six" rather than "all four". The fourth sentence will be reworded to state: "It was further revealed that Mr. Issam Dakik received the assistance of a contact within Citizenship and Immigration Canada (CIC). One informant identified this person by the name of 'Diane' and provided a description of her. Subsequent investigation revealed that a person by the name of Diane Serré matching the
Page 10 description provided by the informant works at the Ottawa Citizenship and Immigration Office." 34 In a summary discussion on p. 104 of the July ITO, it stated that between May 27, 2003 and January 13, 2004 the RCMP received information from four confidential informants. It went on to state that "[i]t was further revealed that Mr. Issam Dakik receives the assistance of a 'contact' within Citizenship and Immigration Canada (CIC), known only to the confidential human sources as 'Diane'. Information received from these four (4) Confidential Human Sources to the effect that Mr. Dakik associates with a female employee of CIC by the name of 'Diane' has been confirmed through surveillance." Again, Ste-Marie acknowledged that this had been a misstatement in the July ITO in that it was inconsistent with the detailed information he had provided in the July ITO about what each confidential informant had said. I accept Ste-Marie's evidence that this was an error made in good faith and without any intention to mislead the authorizing judge. 35 The correct information is that between March 7, 2003 and April 8, 2004, the RCMP received information from six confidential informants. Of these, four confidential informants stated that Dakik received the assistance of a contact within CIC. One confidential informant identified that person as being "Diane". The first paragraph on p. 104 of the July ITO under 4(a) will be amended accordingly. The first line of the next paragraph will be considered amended to read: "Information received from one of these Confidential Human Sources to the effect that Mr. Dakik associates with a female employee of CIC by the name of 'Diane' has been confirmed through surveillance." Reasonable and Probable Grounds 36 Six confidential sources independently reported that someone by the name of Issam, Issam Dakik, or Essam Cherabeye claimed to be able to facilitate or expedite Canadian immigration applications. Five reported that he did this in return for a significant amount of money. Four reported this person as claiming that he had one or more contacts within CIC. One of the confidential informants provided the name of Diane who worked at CIC and that informant provided a description of Diane that corresponded with the description of the Accused. At the time, the Accused was the Acting Operations Supervisor at the Ottawa CIC office. Three informants provided the names of individuals who had allegedly paid money to Dakik to assist them with their immigration allegations. All of those individuals in fact had immigration applications being considered by the Ottawa CIC office where the Accused was employed. A senior member of the CIC staff had reviewed eight files and had reported that (1) there were irregularities in three cases where applications had been granted, (2) two of the three cases had been expedited, (3) the Accused had supervised the CIC employee who had worked on the three files, and (4) the Accused had personally been involved in two of the three cases with irregularities. Telephone and cellular logs divulged that the Accused and Dakik had had about 78 telephone communications during the period of investigation prior to the wiretap authorization being granted. During the same period, surveillance had revealed that the Accused had visited Dakik's home on four occasions and his wife's place of business on three occasions, at times immediately after work. On occasion she was carrying envelopes the size of which would accommodate CIC files or documents. During the same
Page 11 period, Dakik was observed meeting at different hours during the day and late into the evening with numerous individuals at Sea Sweets, a business establishment with which he was involved but at which he did not work. Many of the meetings took place in the back room or kitchen of the establishment. Some of those meetings occurred shortly after the Accused had visited Dakik. On occasion, the lights were dimmed. On occasion, individuals left and then returned with what appeared to be large amounts of money. 37 The first requirement of which a judge authorizing a wiretap must be satisfied is that there are reasonable and probable grounds to believe that an offence has been or is being committed and the interception of the private communications will assist in the investigation of the offences. I conclude that there was ample evidence before the authorizing judge, as amplified on the review, to allow him to conclude that this first requirement had been met (R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721 at para 33). This takes me to the second requirement of investigative necessity. Investigative Necessity 38 LeBel J. in Araujo at paras 26-29 explained the meaning of the investigative necessity requirement in the context of a wiretap authorization under s. 186(1)(b) of the Criminal Code. He focused on the importance of maintaining a balance between the competing values of enabling criminal investigations and protecting privacy rights. He urged a common-sense approach to the interpretation of s. 186(1)(b). The wording of the section makes it clear that there are three kinds of circumstances in which wiretapping may be accepted as an appropriate investigative tool: (1) other investigative procedures have been tried and have failed (the last resort test); (2) other investigative procedures are unlikely to succeed; and (3) 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 (an emergency situation). The second branch is the one garnering the most debate, and is the branch relevant in the case at hand. 39 LeBel J. went on to explain that the words of the second branch must be considered in the context of the subsection as a whole. It is clear from the wording of the section itself that wiretapping involves a serious intrusion into one's privacy that should not be embarked upon lightly. For that reason, the word "unlikely" in the second branch must be given meaning. But ultimately, the Crown must only satisfy one of the three branches of s. 186(1)(b). LeBel J. directed at para 29: In the final analysis, the potentially competing values in this area must be acknowledged. The words of the Code must be read with some common sense having regard both to the nature and purpose of the particular investigation which the police wish to undertake. A pure last resort test would turn the process of authorization into a formalistic exercise that would take no account of the difficulties of police investigations targeting sophisticated crime. But the authorizing judge must look with attention at the affidavit material, with an
Page 12 awareness that constitutional rights are at stake and carefully consider whether the police have met the standard. All this must be performed within a procedural framework where certain actions are authorized on an ex parte basis. Thus, the authorizing judge stands as the guardian of the law and of the constitutional principles protecting privacy interests.... The authorizing judge should grant the authorization only as far as need is demonstrated by the material submitted by the applicant. The judge should remember that the citizens of his country must be protected against unwanted fishing expeditions by the state and its law enforcement agencies. Parliament and the courts have indeed recognized that the interception of private communications is a serious matter, to be considered only for the investigation of serious offences, in the presence of probable grounds, and with a serious testing of the need for electronic interception in the context of the particular investigation and its objects (cf. Smyk, [1993] M.J. No. 483, supra, at p. 74). There must be, practically speaking, no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry. 40 In short, the test under the second branch is whether, practically speaking, there is no other reasonable means of investigation, taking into account the nature and purpose of the particular investigation (See also R. v. Schreinert (2002), 159 O.A.C. 174 at para 34). 41 The investigative necessity requirement applies to the investigation as a whole (R. v. Tahirkheli (1998), 130 C.C.C. (3d) 19 at 22 (Ont. C.A.); R. v. Pham, 2002 BCCA 247, 165 C.C.C. (3d) 97 at para 85; R. v. Wasfi 2006 BCCA 55, 206 C.C.C. (3d) 203 at para 35). It includes the gathering of independent and confirming evidence not reasonably available otherwise (R. v. Rosebush, 1992 ABCA 293; 131 A.R. 282 at para 14). 42 As was noted in Araujo, catching the ringleaders in drug rings and conspiracies is never an easy task. One reason is that the ringleaders insulate themselves from actually being in possession of the drugs or being seen in the company of those buying and selling them on the street, and they surround themselves with a close-knit organization which is difficult to infiltrate. (See also R. v. Pham, [2009] O.J. No. 4689 (S.C.J.) at paras 88-89.) The same observations can be made in an immigration fraud case, one example being R. v. Chang, [1998] O.J. No. 1789 (Gen. Div.) aff'd [2003] O.J. No. 1076 (C.A.). The Defence in that case argued that the evidence before the authorizing judge had been insufficient to establish investigative necessity. Molloy J. disagreed. She concluded that it was open to the authorizing judge to find that there was no practical alternative to electronic surveillance on the particular facts of the case. In that case surveillance had identified some, but not all, of the potential conspirators. As well, "[t]he individuals involved were actively planning their various immigration schemes over the telephone through numerous calls. That kind of information simply could not be gathered by merely watching the participants. It was necessary to know what was being said." Introducing an undercover operator was not a realistic alternative because such an agent would likely not be able to identify all of the conspirators, and some of the conspirators had strong relationships which could be difficult to infiltrate. The same observations
Page 13 apply to the case at hand. 43 In this case, the Accused is charged with several offences under ss. 121(1)(a)(ii), and 121(1)(d) of the Criminal Code. These sections read as follows: 121.(1) Frauds on the government - Everyone commits an offence who (a) directly or indirectly... (ii) (iii) (iv) being an official, demands, accepts or offers or agrees to accept from any person for himself or another person, a loan, reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with the transaction of business with or any matter of business relating to the government, or a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow, whether or not, in fact, the official is able to cooperate, render assistance, exercise influence or do or omit to do what is proposed, as the case may be;... (d) having or pretending to have influence with the government or with a minister of the government or an official, directly or indirectly demands, accepts or offers or agrees to accept, for themselves or another person, a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with (i) (ii) anything mentioned in subparagraph (a)(iii) or (iv), or the appointment of any person, including themselves, to an office; 44 At the foundation of these offences as charged in the indictment is a communication by the Accused to Dakik of a particular type of demand, acceptance, offer or agreement. It is the particular communication itself which provides the external elements of the offence. Although surveillance and the search and seizure of telephone records can establish that some form of communication
Page 14 occurred, those investigative techniques will not divulge the substance of the communications. Similarly, although use of undercover agents might have resulted in evidence that particular immigrants were paying Dakik money on the understanding that he could get someone at CIC to assist in the processing of their immigration applications, it was highly unlikely that use of such agents would divulge the substance of any communications between Dakik and the Accused. This was especially so when the only evidence was that the Accused and Dakik communicated by telephone (as reflected in telephone logs), in person at Dakik's residence when no one other than members of Dakik's immediate family was present (as observed through surveillance), or through the intermediary of Dakik's wife (as observed through surveillance). In short, there was nothing in the context of the evidence available in July 2004 that suggested that use of an undercover agent at that time would have assisted the police in gathering evidence of the substance of the Accused's communications with Dakik. If the police looked only to other investigative methods, it was unlikely that they would have obtained proof of all of the essential elements of the offences charged. (See Adam at para 1442.) 45 Prior to seeking the wiretap authorization, the police had interviewed six confidential informants. They had conducted months of surveillance on the Accused, Dakik and others. They had utilized search warrants to obtain data concerning the telephone records of the Accused and Dakik. They had researched FOSS and the immigration files of all of those names by informants as being implicated with Dakik's immigration "business". They had made use of all other data bases available to them to obtain further information about the individuals identified through surveillance efforts. The police were at the stage in their investigation where they needed to get evidence regarding the verbal communications between the Dakik and the Accused. 46 Based on the evidence in the July ITO as amplified at this hearing, the authorizing judge could have concluded that the prerequisite of investigative necessity for a wiretap had been made out because, practically speaking, there was no other means of obtaining the necessary evidence. Disposition 47 The Garofoli application is dismissed. C.D. AITKEN J. cp/e/qljel/qlpmg/qlced 1 Hill J. provides a useful overview of the principles applying to a Garofoli application in R. v. Pham, [2009] O.J. No. 4689 (S.C.J.).
2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.) 1982, c. 11. Page 15