R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65, 2000 SCC 65 (2000)

Docket Number:26898, 26899, 26904, 26943, 26968
 
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R. v. Araujo, [2000] 2 S.C.R. 992

Angela Araujo, Spencer Leslie, Appellants

Neil Grandmaison, Christina Khoury, Victor Camara,

Robert Jenkins, Tiffany Muriel Leslie,

Kevin Lathangue and Jolene Irons v.

Her Majesty The Queen Respondent

Indexed as: R. v. Araujo

Neutral citation: 2000 SCC 65.

File Nos.: 26898, 26899, 26904, 26943, 26968.

2000: April 11, 12; 2000: December 14.

Present: McLachlin C.J. and L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for british columbia

Criminal law -- Appeals -- Question of law -- Crown's appeal against acquittals -- Issues on appeal concerning application and interpretation of legal standard of investigative necessity for obtaining wiretap authorization -- Whether Court of Appeal had jurisdiction to hear Crown's appeal -- Criminal Code, R.S.C., 1985, c. C-46, s. 676(1)(a).

Criminal law -- Interception of communications -- Investigative necessity requirement -- Nature and interpretation of requirement -- Whether affidavit materials submitted to obtain wiretap authorization established investigative necessity -- Criminal Code, R.S.C., 1985, c. C-46, s. 186(1)(b).

Criminal law -- Interception of communications -- Standard of review for wiretap authorization -- Whether trial judge applied proper standard -- Approach to amplification.

Criminal law -- Interception of communications -- Affidavits -- Kind of affidavit to be submitted on application for wiretap authorization.

The accused faced multiple charges related to their cocaine-trafficking ring. Much of the Crown's evidence against them was gleaned from information captured through wiretapping. The Crown had obtained ex parte authorizations for its wiretaps from a judge by submitting a 130-page affidavit, prepared and signed by R, a member of the RCMP. The affidavit contained information from 10 confidential sources denoted "A" through "J". Information from these sources came to R by way of other officers who were their handlers. On a voir dire at trial, R was cross-examined on the affidavit. After confused attempts at explaining inconsistencies in the affidavit, R admitted that in several places the affidavit referred erroneously to source "E", rather than to source "F". He later testified that the reference should have been to source "C". R admitted that he had known about this error several weeks before the trial. He affirmed that he had forgotten about the matter, but suddenly remembered it during the cross-examination. The trial judge indicated that R's lack of credibility "permeate[d] the issue of reasonable and probable grounds", one of the preconditions to the authorization, and concluded that the affidavit should fall in its entirety. The Court of Appeal set aside the acquittals of the accused and ordered a new trial.

Held: The appeal should be dismissed.

The Court of Appeal had jurisdiction under s. 676(1)(a) of the Criminal Code to hear the Crown's appeal. The Court of Appeal examined the combined interpretation and application of the legal standard of investigative necessity. It also discussed the interpretation and application of the standard of review for a judge reviewing a wiretap authorization. The interpretation or application of a legal standard has been recognized as a question of law.

Under s. 186(1)(b) of the Code, wiretapping may be accepted as an appropriate investigative tool where "other investigative procedures are unlikely to succeed". The correct interpretation of s. 186(1)(b)'s investigative necessity requirement must be based on the text of the provision read with a simultaneous awareness of two potentially competing considerations: enabling criminal investigations and protecting privacy rights. Wiretapping is highly intrusive and a judge should protect citizens against unwanted fishing expeditions by the state and its law enforcement agencies by granting an authorization only as far as need is demonstrated by the material submitted by the applicant. In order to meet the investigative necessity requirement, the applicant must establish in the affidavit that, practically speaking, there is no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry. Here, the Court of Appeal applied a standard inconsistent with the words of the Criminal Code. In concluding that "in the case at bar, there is no reason to impeach the choice of investigative techniques", the court applied an "efficiency" rather than a "necessity" standard. This approach is wrong in law and has the potential to subvert the safeguards of privacy interests that are an essential component of the regulation of wiretapping in the Code. Using the efficiency standard, wiretapping would always be available to the police and would replace a standard of necessity with one of opportunity at the discretion of law enforcement bodies. However, the application of the proper test supports the conclusion reached by the Court of Appeal that the authorizing judge could properly have issued an authorization based on the facts disclosed in the affidavit. The facts as set out in the affidavit met the investigative necessity standard. The affidavit attested to the failure of police efforts in spite of the use of physical surveillance and search warrants. It also provided evidence as to why the use of informants or undercover agents trying to infiltrate the drug ring would be ineffective and potentially dangerous. There was thus evidence in the affidavit to negate arguments for other investigative techniques and to make the case that wiretapping was, practically speaking, the only reasonable alternative, taking into account the nature and purpose of this particular investigation. The objective of a police investigation -- to bring the higher-ups in a drug ring to justice -- rightly informs the investigative necessity analysis. The police had more need for wiretapping given that they were trying to move up the chain and catch the higher-ups in the operation.

As a practical matter, in seeking permission to use wiretapping, the police should submit an affidavit that sets out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization. In addition, an affidavit should be clear and concise. It should never attempt to trick its readers. On this point, the use of boiler-plate language should be avoided. Finally, the affidavits should be gathered from those with the best firsthand knowledge of the facts. This would strengthen the material by making it more reliable.

The trial judge did not correctly apply the standard of review for a wiretap authorization. A reviewing judge does not conduct a rehearing of the application for the wiretap. The test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued. In considering the evidence, the reviewing judge must exclude erroneous information. Amplification may correct such information where the police had the requisite reasonable and probable grounds and demonstrated investigative necessity but, in good faith, made some minor, technical error in the drafting of their affidavit material. There is no need to seek to amplify the record if sufficient reliable material remains even after excising the erroneous material. In this case, although the trial judge found R to lack credibility on the issue of why he had not disclosed a minor drafting mistake, there is no suggestion that there was ever any untruthfulness in the substance of the information in the affidavit itself. In these circumstances, a global finding against the entire affidavit was unreasonable. Even without the information from sources "C" and "E", the affidavit would have provided ample evidence to an issuing judge and evidenced the existence of probable grounds and investigative necessity. Moreover, amplification would allow for the reading of the information from the now correctly attributed sources "C" and "E" as well. The Court of Appeal was correct in upholding the issuing judge's authorization.

Cases Cited

Followed: R. v. Garofoli, [1990] 2 S.C.R. 1421; R. v. Bisson, [1994] 3 S.C.R. 1097, aff'g [1994] R.J.Q. 308, 87 C.C.C. (3d) 440; R. v. Grant, [1993] 3 S.C.R. 223; approved: R. v. Hiscock, [1992] R.J.Q. 895, 72 C.C.C. (3d) 303, leave to appeal refused, [1993] 1 S.C.R. vi; R. v. Monroe (1997), 8 C.R. (5th) 324; R. v. Morris (1998), 134 C.C.C. (3d) 539; disapproved: R. v. Paulson (1995), 97 C.C.C. (3d) 344; R. v. Cheung (1997), 119 C.C.C. (3d) 507; referred to: R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Commisso, [1983] 2 S.C.R. 121; R. v. Thompson, [1990] 2 S.C.R. 1111; R. v. Lachance, [1990] 2 S.C.R. 1490; R. v. Finlay (1985), 23 C.C.C. (3d) 48; R. v. Playford (1987), 40 C.C.C. (3d) 142; R. v. Smyk (1993), 86 C.C.C. (3d) 63; R. v. Barbeau (1996), 110 C.C.C. (3d) 69; R. v. Grant (1998), 130 C.C.C. (3d) 53; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743; R. v. Madsen, [1988] N.W.T.R. 82; R. v. Todoruk (1992), 78 C.C.C. (3d) 139; R. v. McCreery, [1996] B.C.J. No. 2405 (QL); R. v. Shalala (2000), 224 N.B.R. (2d) 118; Berger v. New York, 388 U.S. 41 (1967); Katz v. U.S., 389 U.S. 347 (1967); U.S. v. London, 66 F.3d 1227 (1995); U.S. v. Torres, 901 F.2d 205 (1990); U.S. v. Commito, 918 F.2d 95 (1990); U.S. v. Guerra-Marez, 928 F.2d 665 (1991); U.S. v. Milton, 153 F.3d 891 (1998); U.S. v. Smith, 31 F.3d 1294 (1994); U.S. v. Green, 40 F.3d 1167 (1994); Dalglish v. Jarvie (1850), 2 Mac. & G. 231, 42 E.R. 89; R. v. Kensington Income Tax Commissioners, [1917] 1 K.B. 486; Re Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449; United States...

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