R. v. Cosgrove (D.) et al., (1997) 151 Nfld. & P.E.I.R. 1 (NFTD)

• Judge: Mercer, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: March 11, 1997
• Jurisdiction: Newfoundland and Labrador
• Citations: (1997), 151 Nfld. & P.E.I.R. 1 (NFTD)

R. v. Cosgrove (D.) (1997), 151 Nfld. & P.E.I.R. 1 (NFTD);

    471 A.P.R. 1

MLB headnote and full text

In The Matter Of a "Garofoli" Application by Daniel Cosgrove and James Melvin to set aside authorizations to intercept private communications.

Daniel Cosgrove and James Melvin (applicants) v. Her Majesty the Queen (respondent)

(1994 St. J. No. 4281)

Indexed As: R. v. Cosgrove (D.) et al.

Newfoundland Supreme Court

Trial Division

Mercer, J.

March 11, 1997.

Summary:

The accused were charged with conspiracy to traffic in a narcotic. The Crown gave notice that it intended to introduce com­munications intercepted under various wiretap authorizations. The accused chal­lenged the wiretap authorizations. They applied to exclude the intercepted communi­cations under s. 24(2) of the Charter on the ground that their s. 8 Charter rights were violated.

The Newfoundland Supreme Court, Trial Division, dismissed the application.

Civil Rights - Topic 1373

Security of the person - Police surveil­lance - Interception of private communi­cations - The police installed a room probe in Cosgrove's residence as part of a narcotic importation investigation pursuant to two authorizations - Cosgrove was a key player in the scheme - The probe did not intercept any relevant evidence in the three weeks prior to obtaining the second authorization - Cosgrove claimed that the room probe violated his s. 8 Charter rights - He claimed, inter alia, that a room probe should only be used as a last resort - The Newfoundland Supreme Court, Trial Divi­sion, held that there was probable cause to believe that the interception of Cosgrove's private communications, particularly at his residence, would assist the investigation - The court stated that there was not a more stringent standard of investigative necessity when a room probe was sought - See paragraphs 116 to 135.

Civil Rights - Topic 1373

Security of the person - Police surveil­lance - Interception of private communi­cations - Cosgrove and Melvin were named in wiretap authorizations obtained by the police - Parsons, a police infor-mant, was not named in the authorizations - The police intercepted Parsons' com­muni­cations with Melvin, but not with Cos­grove - Cosgrove and Melvin sought to exclude the communications on the ground that the failure to name Parsons in the authorizations rendered the intercep­tions illegal and contrary to s. 8 of the Charter - The Newfoundland Supreme Court, Trial Division, stated that when a police inform­ant was known to be regular­ly discussing the offence with targets he should be listed as a known person - The court held that neither Cosgrove nor Melvin were entitled to exclude Parsons' intercepted communi­cations based on the failure to name him in the authorizations - See paragraphs 136 to 150.

Criminal Law - Topic 5273

Evidence and witnesses - Interception of private communications - "Known" person defined - [See second Civil Rights - Topic 1373 ].

Criminal Law - Topic 5274.1

Evidence and witnesses - Interception of private communications - Application for - Where application based on informant's statements - The Newfoundland Supreme Court, Trial Division, stated that "terms such as 'reliable, confidential police infor­mant' ... may properly be relied upon by a judge considering an application under Part IV of the Code. It does not follow, how­ever, that the police affiant is stating that the informant is always truthful. Not all informant information will find its way before a judge. ... Informant information, like all information gathered by the police, must be considered in the context of the entire investigation and verification of informant information may be required on occasion. It is expected that police contin­ually assess the quality of informant infor­mation, even from those who have pro­vided accurate evidence in the past" - See paragraph 71.

Criminal Law - Topic 5274.1

Evidence and witnesses - Interception of private communications - Application for - Where application based on informant's statements - The police obtained wiretap authorizations in a narcotics importation investigation - The affidavits in support of the authorization applications relied on information provided by Parsons - The accused sought to preclude the Crown from using the wiretap evidence at their trial, claiming that the affidavits failed to disclose Parsons' full relationship with the police, his drug trafficking activity or information reflecting upon his veracity - The Newfoundland Supreme Court, Trial Division, held that the authorizing judges were fully aware of the arrangement with Parsons - See paragraphs 42 to 65 - The court held that even had the authorizing judges been aware of Parsons' drug traf­ficking and the other information they could have issued the authorizations - See paragraphs 66 to 100.

Criminal Law - Topic 5274.1

Evidence and witnesses - Interception of private communications - Application for - Where application based on informant's statements - The police obtained wiretap authorizations in a narcotics importation investigation - The affidavits in support of the authorization applications relied on information provided by police informants - The affidavits indicated that the infor-m­ant information was related to the affiant by another officer - The other officer stated that the informants were reliable - The accused sought to preclude the Crown from using the wiretap evidence, claiming that the affiant was required to undertake a thorough check to confirm the infor­mants' reliability - The Newfoundland Supreme Court, Trial Division, held that the affiant was not required to invariably conduct checks respecting informant infor­mation received from other officers - However, the authorizing judge should be made aware of the manner in which the affiant obtained the informant information - See paragraphs 101 to 106.

Criminal Law - Topic 5274.2

Evidence and witnesses - Interception of private communications - Application for - Names of persons affected - [See sec­ond Civil Rights - Topic 1373 ].

Criminal Law - Topic 5274.4

Evidence and witnesses - Interception of private communications - Application for - Requirement of investigative necessity - The police obtained wiretap authorizations in a narcotics importation investigation - The affidavits in support of the authori­zation applications relied on information provided by Parsons, who was associated with the targets of the investigation - The affidavit stated that the wiretap was required because an undercover operation was infeasible - The accused sought to preclude the Crown from using the wiretap evidence at their trial, claiming that the affidavits failed to disclose Parsons' infil­tration of the organization - The New­foundland Supreme Court, Trial Division, held that although the statement of infeasibility was inconsistent with Parsons' involvement, the authorizing judge was not mislead because Parsons' involvement was indicated elsewhere in the affidavit - See paragraphs 151 to 173.

Criminal Law - Topic 5283

Evidence and witnesses - Interception of private communications - Authority for - Judicial review of - The Newfoundland Supreme Court, Trial Division, discussed review of wiretap authorizations - See paragraphs 24 to 41.

Criminal Law - Topic 5283

Evidence and witnesses - Interception of private communications - Authority for - Judicial review of - The Newfoundland Supreme Court, Trial Division, stated "[e]vidence of fraud, non-disclosure, mis­leading evidence or new evidence, even on matters which clearly lead to the granting of the authorization, do not automatically vitiate the authorization. The issue becomes whether there continues to be a basis upon which the authorizing judge could have, not would have , granted the authorization. The trial judge must exam­ine the record which was before the auth­orizing judge as amplified on the review. Proof of fraud, non-disclosure, misleading evidence or new evidence may result in the deletion of tainted material from the affidavit. The trial judge then examines the untainted information remaining in the affidavit and decides whether the authoriz­ing judge, cognizant of all the facts in­cluding those elicited on the review, could have granted the authorization." - See paragraph 37.

Criminal Law - Topic 5286.2

Evidence and witnesses - Interception of private communications - Authority for - Room probe - [See first Civil Rights - Topic 1373 ].

Cases Noticed:

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 60 C.C.C.(3d) 161; 80 C.R.(3d) 317; 50 C.R.R. 206, consd. [para. 9].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 14].

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322; 53 C.C.C.(3d) 1; 65 D.L.R.(4th) 240; 74 C.R.(3d) 281; 45 C.R.R. 278, refd to. [para. 15].

R. v. Bisson (J.) et autres (1994), 60 Q.A.C. 173; 87 C.C.C.(3d) 440 (C.A.), affd. [1994] 3 S.C.R. 1097; 173 N.R. 237; 65 Q.A.C. 241; 94 C.C.C.(3d) 94, refd to. [para. 16].

R. v. Smyk (K.W.) et al. (1993), 88 Man.R.(2d) 303; 51 W.A.C. 303; 86 C.C.C.(3d) 63 (C.A.), refd to. [para. 17].

R. v. Garofoli et al. (1988), 27 O.A.C. 1; 41 C.C.C.(3d) 97 (C.A.), refd to. [para. 18].

People v. Baris (1986), 500 N.Y.S.2d 572 (N.Y. App. Div.), refd to. [para. 18].

R. v. Rosebush (F.E.) et al. (1992), 131 A.R. 282; 25 W.A.C. 282; 77 C.C.C.(3d) 241 (C.A.), refd to. [para. 19].

R. v. Moore (G.P.) et al. (1993), 27 B.C.A.C. 253; 45 W.A.C. 253; 81 C.C.C.(3d) 161 (C.A.), affd. [1995] 1 S.C.R. 756; 179 N.R. 313; 60 B.C.A.C. 161; 99 W.A.C. 161; 95 C.C.C.(3d) 288, refd to. [para. 20].

R. v. Land (1990), 55 C.C.C.(3d) 382 (Ont. H.C.), refd to. [para. 20].

R. v. Shayesteh (S.) (1996), 94 O.A.C. 81; 111 C.C.C.(3d) 225 (C.A.), refd to. [para. 21].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 24].

R. v. Adair, [1994] O.J. No. 3265 (Gen. Div.), refd to. [para. 33].

R. v. Madrid (L.A.) et al. (1994), 48 B.C.A.C. 271; 78 W.A.C. 271 (C.A.), refd to. [para. 34].

R. v. Stacey (L.J.) (1996), 140 Sask.R. 60 (Q.B.), refd to. [para. 36].

R. v. Mikituk et al. (1992), 101 Sask.R. 286 (Q.B.), refd to. [para. 36].

R. v. Eagle, [1996] O.J. No. 2867 (Gen. Div.), refd to. [para. 38].

Michaud v. Quebec (Attorney General) (1996), 201 N.R. 241 (S.C.C.), refd to. [para. 40].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1; 45 C.C.C.(3d) 57; [1989] 1 W.W.R. 97; 66 C.R.(3d) 97, refd to. [para. 62].

Wayte v. United States (1985), 470 U.S. 598, refd to. [para. 63].

R. v. V.T., [1992] 1 S.C.R. 749; 134 N.R. 289; 7 B.C.A.C. 81; 15 W.A.C. 81, refd to. [para. 63].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269; 89 C.C.C.(3d) 1; 29 C.R.(4th) 1, refd to. [para. 63].

R. v. Hosie (G.) (1996), 91 O.A.C. 281; 107 C.C.C.(3d) 385 (C.A.), folld. [para. 69].

R. v. Naoufal (N.) (1994), 70 O.A.C. 214; 89 C.C.C.(3d) 321 (C.A.), affd. [1994] 3 S.C.R. 1020; 197 N.R. 161; 90 O.A.C. 346, refd to. [para. 71].

R. v. Dikah - see R. v. Naoufal (N.).

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277; 61 C.C.C.(3d) 300, refd to. [para. 71].

R. v. Peddle (R.) (1996), 145 Nfld. & P.E.I.R. 112; 453 A.P.R. 112 (Nfld. C.A.), refd to. [para. 71].

R. v. Leipert (R.D.) (1996), 74 B.C.A.C. 271; 121 W.A.C. 271; 106 C.C.C.(3d) 375 (C.A.), affd. (1997), 207 N.R. 145; 85 B.C.A.C. 162; 138 W.A.C. 162 (S.C.C.), refd to. [para. 72].

R. v. Chesson and Vanweenan, [1988] 2 S.C.R. 148; 87 N.R. 115; 90 A.R. 347; 43 C.C.C(3d) 353, refd to. [para. 110].

R. v. Brown (D.M.) (1995), 145 N.S.R.(2d) 387; 418 A.P.R. 387; 102 C.C.C.(3d) 422 (C.A.), refd to. [para. 120].

R. v. Thompson et al., [1990] 2 S.C.R. 1111; 114 N.R. 1; 59 C.C.C.(3d) 225, refd to. [para. 121].

R. v. Belnavis (A.) and Lawrence (C.) (1996), 91 O.A.C. 3; 29 O.R.(3d) 321 (C.A.), refd to. [para. 144].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321; 104 C.C.C.(3d) 136, refd to. [para. 144].

R. v. Lachance (1990), 116 N.R. 325; 43 O.A.C. 241; 36 Q.A.C. 243; 60 C.C.C.(3d) 449 (S.C.C.), dist. [para. 167].

R. v. Brunelle (1990), 55 C.C.C.(3d) 347 (B.C.S.C.), refd to. [para. 167].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 13].

Criminal Code, R.S.C. 1985, c. C-46, sect. 185(1) [para. 16]; sect. 185(1)(e) [para. 117]; sect. 185(1)(h) [para. 151]; sect. 186(1) [para. 16]; sect. 186(1)(b) [para. 151]; sect. 186(4)(c) [para. 117].

Authors and Works Noticed:

MacFarlane, Frater and Proulx, Drug Of­fences in Canada (3rd Ed. 1996), pp. 21-9 to 21-10 [para. 149]; 21-11 to 21-13 [para. 17].

Counsel:

J. Kennedy, for the applicants;

J. Walsh and W. Gerrior, for the co-accused;

M. Pike and M. Madden, for the Crown.

This application was heard on January 9 and 10, 1997, by Mercer, J., of the New­foundland Supreme Court, Trial Division, who delivered the following decision on March 11, 1997.