R. v. Garofoli, [1990] 2 S.C.R. 1421 (1990)

Supreme Court of Canada

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R. v. Garofoli, [1990] 2 S.C.R. 1421 (1990)

R. v. Garofoli, [1990] 2 S.C.R.

1421

Jean-Claude Garofoli Appellant v.

Her Majesty The Queen Respondent indexed as: r. v. garofoli

File No.: 21099.

1989: October 3, 4; 1990: November 22.

Present: Dickson C.J.* and Lamer C.J.** and La Forest, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ.

on appeal from the court of appeal for ontario

Criminal law -- Interception of private communications -- Access to sealed packet -- Validity of wiretap authorizations -- Grounds for challenging authorizations and appropriate remedies -- Protection of identity of informers -- Editing of affidavits -- Entitlement of accused to cross-examine on affidavits -- Criminal Code, R.S.C. 1970, c. C-34, Part IV.1.

Criminal law -- Interception of private communications -- Admissibility of evidence -- Relationship between s. 178.16 of Criminal Code and s. 24(2) of Canadian Charter of Rights and Freedoms.

Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Interception of private communications -- Judge failing to include minimization clause in wiretap authorizations -- Whether authorizations violate s. 8 of Canadian Charter of Rights and Freedoms.

Appellant was charged with conspiring to import a narcotic. The evidence against him was derived largely from private communications intercepted pursuant to wiretap authorizations. At the conclusion of a voir dire to determine the admissibility of the intercepted communications, the trial judge refused to order the opening of the sealed packets containing the affidavits upon which the authorizations were granted and found the wiretap evidence to be admissible. He convicted appellant. Relying on its decision in Playford, released after the trial judge's ruling, the Court of Appeal found that appellant was entitled to have access to the sealed packets. The affidavits were edited to protect confidential informants and then released to him. The court found that the editing did not impair counsel's ability to determine the facial validity of the affidavits, that the affidavits set out sufficient indicia of reliability of the informant involved, and that they set out ample facts to meet constitutional requirements for a reasonable search and seizure. Since appellant had not shown that the affiant had made a false statement knowingly and intentionally, or with reckless disregard for the truth, he was not entitled to cross-examine him. The court concluded that the trial judge's refusal to permit appellant to have access to the affidavits did not result in a miscarriage of justice and upheld the conviction. The main issues on this appeal are whether the accused is entitled to access to the material in the sealed packet; on what terms an accused may challenge an authorization for wiretap; special requirements relating to informants; the procedure for editing affidavits in the sealed packet; whether the accused is entitled to cross-examine on the affidavits; and whether the authorizing judge's failure to include a minimization clause resulted in authorization of an unreasonable search and seizure in violation of s. 8 of the Canadian Charter of Rights and Freedoms.

Held (L'Heureux-Dubé and McLachlin JJ. dissenting): The appeal should be allowed.

Per Dickson C.J. and Lamer C.J. and La Forest, Sopinka and Gonthier JJ.: The Court of Appeal was right to open the sealed packets since the accused is entitled, subject to editing, to have their contents produced in order to enable him to make full answer and defence.

Since wiretaps constitute a search or seizure, the statutory provisions authorizing them must conform to the minimum constitutional requirements demanded by s. 8 of the Canadian Charter of Rights and Freedoms. The issuing judge must be satisfied that there are reasonable and probable grounds to believe that an offence has been or is being committed, and that the authorization sought will afford evidence of that offence.

The procedures available for challenging a wiretap authorization are: (1) a Parsons voir dire before the trial judge to determine whether the authorization is valid on its face, the remedy being exclusion under s. 178.16 of the Code; (2) a Wilson application before the issuing court to determine the substantive or subfacial validity of the affidavit, the remedy being the setting aside of the authorization; (3) a Garofoli hearing before the trial judge to determine whether the authorization complies with s. 8 of the Charter, the remedy being a determination of whether the evidence should be excluded under s. 24(2) of the Charter; and (4) a Vanweenan hearing before the trial judge to determine whether the authorization names all "known" persons as required by ss. 178.12(1)(e) and 178.13(2)(c) of the Code, the remedy being exclusion under s. 178.16.

When it is asserted by an accused that a wiretap infringes s. 8 of the Charter, the application for revi...

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