R. v. Lucas (S.), 2014 ONCA 561

• Judge: Rosenberg, Goudge and van Rensburg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: July 23, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 561;(2014), 321 O.A.C. 199 (CA)

R. v. Lucas (S.) (2014), 321 O.A.C. 199 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JL.040

Her Majesty the Queen (respondent) v. Steven Lucas (appellant)

(C51429)

Her Majesty the Queen (respondent) v. Vinh Ban Chau (appellant)

(C51469)

Her Majesty the Queen (respondent) v. Ryan Coyle (appellant)

(C51526)

Her Majesty the Queen (respondent) v. Stefan Rosa (appellant)

(C51606)

Her Majesty the Queen (respondent) v. Jose Alvarez (appellant)

(C52075; 2014 ONCA 561)

Indexed As: R. v. Lucas (S.)

Ontario Court of Appeal

Rosenberg, Goudge and van Rensburg, JJ.A.

July 23, 2014.

Summary:

The five accused were convicted of various drug and firearms-related offences. Much of the evidence against the accused had been obtained through interception of private communications, physical surveillance and surreptitious entry into premises under general warrants. The accused appealed from their convictions.

The Ontario Court of Appeal dismissed the appeals.

Civil Rights - Topic 1373

Security of the person - Police surveillance - Interception of private communications - The five accused were convicted of various drug and firearms-related offences - Much of the evidence against the accused had been obtained through interception of private communications, physical surveillance and surreptitious entry into premises under general warrants - On appeal, the accused challenged the constitutionality of s. 186(1.1) of the Criminal Code, which was used to obtain wiretap authorizations - The accused asserted that s. 186(1.1) infringed s. 8 of the Charter because it eliminated the "investigative necessity" requirement in s. 186(1)(b) - According to the accused, state interception of private communications without a demonstration of investigative necessity rendered the authorization unconstitutional - The Ontario Court of Appeal dismissed the appeal - The investigative necessity required in s. 186(1)(b) was not a constitutional imperative - The correct approach to the constitutional issue here was articulated by Cory, J., in Société Radio-Canada v. Nouveau-Brunswick (Procureur général) et al. (1991 S.C.C.) - The potential intrusion of a person's privacy in any search varied depending on the particular circumstances - The minimum constitutional requirement for electronic surveillance was expressed in s. 186(1)(a) - The statutory language "it would be in the best interests of the administration of justice to do so [to grant the authorization]" was the equivalent of Southam Inc. v. Hunter's (1984 S.C.C.) "reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search" - See paragraphs 72 to 103.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See Civil Rights - Topic 8368 ].

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The five accused were convicted of various drug and firearms-related offences - Much of the evidence against the accused had been obtained through interception of private communications, physical surveillance and surreptitious entry into premises under general warrants - On appeal, the accused asserted that s. 487.01 of the Criminal Code, under which the police obtained three general warrants here, was contrary to s. 8 of the Charter - The Ontario Court of Appeal dismissed the appeal - In authorizing searches for evidence and other information that was not known to exist at the time the warrant was granted, s. 487.01(1)(a) required the demonstration of reasonable grounds to believe that an offence "will be committed" - This requirement was an adequate basis for balancing the public interest in being left alone with the government's interest in intruding into a person's privacy - The appropriate way to ensure that the warrant was executed consistently with s. 8 was to limit its execution to circumstances where the police had gathered sufficient evidence to establish reasonable grounds that information related to specified offences would be present - The court rejected the accused's argument that s. 487.01 was invalid because it did not include safeguards similar to those required for anticipatory warrants in the U.S. - Those safeguards did not have to be spelled out in the provision itself - The need for conditions that were explicit, clear and narrowly drawn was consistent with the requirement in s. 487.01(1)(b) that the judge be satisfied that the warrant's issuance was in the best interests of the administration of justice - See paragraphs 104 to 121.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The five accused were convicted of various drug and firearms-related offences - Much of the evidence against the accused had been obtained through interception of private communications, physical surveillance and surreptitious entry into premises under general warrants - On appeal, the accused asserted that s. 487.01 of the Criminal Code, under which the police obtained three general warrants here, was contrary to s. 8 of the Charter - The Ontario Court of Appeal dismissed the appeal - Properly interpreted, s. 487.01 was consistent with s. 8 - In considering s. 487.01's validity, the legislation had to be viewed as a whole - In addition to the requirement of reasonable grounds to believe that an offence "will be committed" in s. 487.01(1)(a) and the best interests of the administration of justice requirement in s. 487.01(1)(b), s. 487.01(1)(c) included the important safeguard that the general warrant had to be used only where there was no other provision that would provide for a warrant, authorization or order permitting the particular technique - This ensured that police had to use the general warrant sparingly and only when the proposed technique was substantively different from an investigative technique accounted for by another legislative provision - Further, a central safeguard in s. 487.01 was the requirement that the judge be provided with reasonable grounds in respect of specified offences that had or would be committed and that information concerning those offences would be obtained - See paragraphs 122 to 126.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The five accused were convicted of various drug and firearms-related offences - Much of the evidence against the accused had been obtained through interception of private communications, physical surveillance and surreptitious entry into premises under general warrants - On appeal, the accused asserted that the general warrants were invalid because they impermissibly delegated the judges' discretion to the police - Each of the general warrants allowed for surreptitious entry into named premises for specified items when reasonable grounds existed to believe that specified named offences had been or would be committed and that those items would be present to be used for evidence in the investigation of the named offences "and/or anticipatory charges" - The Ontario Court of Appeal dismissed the appeal - The reference to "anticipatory charges" was troublesome because it appeared to delegate to the police the decision as to how the warrant would be executed without the reasonable grounds safeguard - However, the inclusion of this term did not render the warrants invalid and the offending parts of the warrants could be safely excised - There was no suggestion that any of the surreptitious searches were conducted in relation to unknown charges - See paragraphs 174 to 180.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The five accused were convicted of various drug and firearms-related offences - Much of the evidence against the accused had been obtained through interception of private communications, physical surveillance and surreptitious entry into premises under general warrants - On appeal, the accused asserted that the general warrants were invalid because they impermissibly delegated the judges' discretion to the police - Each of the general warrants allowed for surreptitious entry into named premises for specified items when reasonable grounds existed to believe that specified named offences had been or would be committed and that those items would be present to be used for evidence in the investigation of the named offences "and/or anticipatory charges" - The Ontario Court of Appeal dismissed the appeal - The court rejected the accused's argument that the general warrants authorized unconstitutional searches and seizures because the decisions whether to execute the warrants were delegated to the police - The authorizing judges had concluded that the intrusions could occur and where they could occur - As the appropriate timing of the intrusions could not be predicted in advance, the judges imposed a term authorizing the intrusions only when reasonable grounds existed to believe that the items sought were present - This was a sufficient guarantee to protect the privacy rights of the targets - See paragraphs 181 to 183.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The five accused were convicted of various drug and firearms-related offences - Much of the evidence against the accused had been obtained through interception of private communications, physical surveillance and surreptitious entry into premises under general warrants - On appeal, the accused asserted that the general warrants were invalid as being contrary to the best interests of the administration of justice in that they authorized covert entry into many specified places for a 60 day period - The Ontario Court of Appeal dismissed the appeal - Nothing in the legislation or s. 8 limited the warrants' scope in terms of the number of places to search - The question was whether reasonable grounds existed for each of those places - Nor was the 60 day time period unreasonable - See paragraphs 184 to 187.

Civil Rights - Topic 1604

Property - Search warrants - Validity of - The five accused were convicted of various drug and firearms-related offences - Much of the evidence against the accused had been obtained through interception of private communications, physical surveillance and surreptitious entry into premises under general warrants - A number of items were seized from a locker in a public storage facility - On appeal, the accused asserted that the trial judge had erred in failing to exclude from evidence the items seized from the locker - The Ontario Court of Appeal dismissed the appeal - The court rejected the accused's argument that the affidavit filed in support of this general warrant was materially misleading - Having excised certain information from the information to obtain the warrant, the trial judge concluded that what remained was sufficient to show that there were reasonable grounds to issue the general warrant - Having reviewed the evidence and the excisions, the court agreed with the trial judge's conclusion - See paragraphs 188 to 194.

Civil Rights - Topic 3137

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to be present at trial - The accused were charged with various drug and firearms-related offences - Much of the evidence against the accused had been obtained through interception of private communications, physical surveillance and surreptitious entry into premises under general warrants - In a pretrial application, the accused sought disclosure of edited portions of an information to obtain that had been sworn in support of a wiretap authorization - A few days prior to the hearing of the motion, the Crown had appeared ex parte and in camera before the application judge for the purpose of establishing informer privilege - Subsequently, in appealing from their convictions, the accused asserted that the application judge had erred in conducting the ex parte, in camera hearing - The Ontario Court of Appeal dismissed the appeal - The procedure adopted by the application judge conformed to the principles outlined in R. v. Basi (U.S.) et al. (2009 S.C.C.) - There was a presumption that any proceeding that might reveal the identity of an informer would be held in camera - The accused and their counsel had no right to attend the ex parte, in camera hearing, which was conducted solely to determine whether two individuals were prima facie confidential informers - See paragraphs 43 to 63.

Civil Rights - Topic 3137

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to be present at trial - The accused were charged with various drug and firearms-related offences - Much of the evidence against the accused had been obtained through interception of private communications, physical surveillance and surreptitious entry into premises under general warrants - In a pretrial application, the accused sought disclosure of edited portions of an information to obtain that had been sworn in support of a wiretap authorization - A few days prior to the hearing of the motion, the Crown had appeared ex parte and in camera before the application judge for the purpose of establishing informer privilege regarding two individuals - Subsequently, in appealing from their convictions, the accused asserted that the application judge had erred in conducting the ex parte, in camera hearing - The Ontario Court of Appeal dismissed the appeal - The court rejected the accused's argument that they should have been present at the hearing except where necessary to protect the individuals' identity and that they had a right to make submissions about procedure - There was no right for the accused or their counsel to be present at a "first stage" in camera hearing on a claim of informer privilege - The trial judge had broad discretion to craft appropriate procedures to safeguard the interests underlying informer privilege and to protect the accused's interests - The accused were provided with a redacted transcript of the hearing - They continued to have the opportunity to challenge the privilege and its application - While it would have been preferable for the accused to have been given notice of the procedure, the failure to do so had not resulted in any prejudice to the accused or a denial of their right to make full answer and defence - Even if there had been a breach of s. 650(1) of the Criminal Code (accused "shall be present in court during the whole of his or her trial"), the court would have applied the curative proviso in s. 686(1)(b)(iv) of the Code - See paragraphs 64 to 71.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The five accused were convicted of various drug and firearms-related offences - On appeal, the accused Chau asserted that the trial judge had erred in admitting evidence seized in an unreasonable search of Chau's vehicle under s. 24(2) of the Charter - The Ontario Court of Appeal dismissed the appeal - The court rejected Chau's argument that the Charter breach was serious and that the trial judge had erred in not so finding - It was reasonable for the trial judge to find that the police had acted in good faith, believing, as they had, that they had to move quickly to preserve the evidence and not risk the entire investigation - It was implicit in the police evidence that they believed that they had the power to conduct an exigent search - Balancing these considerations against what could only be described as the unjustifiable method of executing the search, the court could not find that placing the search on the less serious end of the spectrum was unreasonable - Further, the trial judge reasonably concluded that the impact on Chau's Charter-protected interests was less severe due to the lesser expectation of privacy in his vehicle - Finally, the seriousness of the charges and the importance of their adjudication on the merits required admission of the evidence - See paragraphs 230 to 251.

Criminal Law - Topic 10.2

General principles - General and definitions - Possession defined - The five accused were convicted of various drug and firearms-related offences - Much of the evidence against the accused had been obtained through interception of private communications, physical surveillance and surreptitious entry into premises under general warrants - Firearms and ammunition were seized from a locker in a public storage facility - The locker was rented by the girlfriend of the accused Lucas - Lucas and Rosa were convicted of firearms offences based on the evidence seized from the locker - On appeal, Rosa challenged his convictions as being unreasonable - He argued that there was insufficient evidence of his knowledge and control of the firearms to constitute his possession of them for the purpose of these offences - The Ontario Court of Appeal dismissed the appeal - Having reviewed the evidence, the court concluded that the shared criminal activities of Lucas and Rosa, their joint visit to the locker and a Blackberry that connected Rosa to the contents of the locker were sufficient to permit the reasonable conclusion that Rosa had knowledge and control over the items found and that he was, therefore, in possession of them - See paragraphs 202 to 207.

Criminal Law - Topic 127

General principles - Rights of accused - Right to be present at trial - [See both Civil Rights - Topic 3137 ].

Criminal Law - Topic 2673

Attempts, conspiracies, accessories and parties - Conspiracies - Jury charge - The five accused were convicted of various drug and firearms-related offences - Much of the evidence against the accused had been obtained through interception of private communications, physical surveillance and surreptitious entry into premises under general warrants - A number of items were seized from a locker in a public storage facility, including a box with the accused Coyle's address and phone number on it - The box contained a kilogram of cocaine - Together with three other accused, Coyle was charged with conspiracy to traffic cocaine - In charging the jury regarding Coyle, the trial judge referred to evidence of various meetings, texts, phone calls and items discovered in Coyle's residence and vehicle - However, the trial judge began his review of the evidence by referring to the box - On appeal from his conviction, Coyle asserted that (1) the cocaine in the box could not be linked to him and, therefore, could not link him to the alleged conspiracy and (2) the box, itself, should not have been considered by the jury - The Ontario Court of Appeal dismissed the appeal - The court agreed that the trial judge ought not to have included the cocaine in the body of evidence given to the jury to consider at the second state of the R. v. Carter (1982 S.C.C.) analysis - Any possibility that the cocaine in the box was connected to Coyle was speculation - However, no substantial wrong or miscarriage of justice resulted - There was an overwhelming body of direct evidence pointing to Coyle's possible membership in the conspiracy - The court applied the curative proviso in s. 686(1)(b)(iii) of the Criminal Code - See paragraphs 208 to 217.

Criminal Law - Topic 3046

Special powers - Search warrants - Validity of - General - [See all Civil Rights - Topic 1604 ].

Criminal Law - Topic 3048

Special powers - Search warrants - Validity of - Severability of partially defective warrant or information - [See third and sixth Civil Rights - Topic 1604 ].

Criminal Law - Topic 3054

Special powers - Search warrants - Execution of - General - [See first Civil Rights - Topic 1604 ].

Criminal Law - Topic 3054

Special powers - Search warrants - Execution of - General - The five accused were convicted of various drug and firearms-related offences - Much of the evidence against the accused had been obtained through interception of private communications, physical surveillance and surreptitious entry into premises under general warrants - A number of items were seized from a locker in a public storage facility - On appeal, the accused asserted that the trial judge had erred in failing to exclude from evidence the items seized from the locker - The Ontario Court of Appeal dismissed the appeal - The court rejected the accused's argument that the warrant was not executed in accordance with its terms - The information to obtain the warrant stated that the officers would obtain keys to the locker to enable them to enter without detection - In the event of exigent circumstances, the warrant authorized the officers to use other means that caused the most minimal and reasonable amount of damage - In fact, the officers rented a locker in the storage facility to obtain the pass code and then picked the lock of the locker at issue - There was no violation of the warrant in this - While the warrant authorized covertly retrieving keys, it was not written in a way that required the police to enter only by using the keys - See paragraphs 195 to 201.

Criminal Law - Topic 3054

Special powers - Search warrants - Execution of - General - The five accused were convicted of various drug and firearms-related offences - On appeal, the accused Lucas and Rosa asserted that the removal of the "knock and notice" requirements in "take-down warrants" had violated their rights under s. 8 of the Charter - The warrants authorized the police to enter premises without knocking or giving notice and to search and effect arrests in the residence - The Ontario Court of Appeal dismissed the appeal - The trial judge found that a synchronized approach to the searches and arrests was necessary to prevent some targets from alerting others, which would have led to the real possibility of the destruction of evidence and the escape of intended targets - Arresting Lucas and Rosa in public would have put the safety of the police and the public at risk since they were both believed to have been trafficking guns and drugs to a violent gang - The trial judge's assessment had to be given substantial deference - See paragraphs 252 to 260.

Criminal Law - Topic 3054

Special powers - Search warrants - Execution of - General - The five accused were convicted of various drug and firearms-related offences - On appeal, the accused Chau asserted that the trial judge had erred by finding that the "no knock" forced entry and search of his residence by police was reasonable and by failing to exclude the evidence seized during the search - Chau asserted that the police had no information linking him to violence or firearms and, therefore, no basis for concern about officer safety if they did not use a dynamic entry - The Ontario Court of Appeal dismissed the appeal - The police had information about Chau's direct connection to other accused who had access to firearms, which raised the possibility that Chau might possess firearms as well - Further, information indicated that Chau was a high level dealer in the notoriously dangerous business of drug dealing - These exigent circumstances justified the no knock entry of Chau's residence - See paragraphs 261 to 264.

Criminal Law - Topic 3093

Special powers - Issue of search warrants - What constitutes reasonable grounds - [See Criminal Law - Topic 3097 ].

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - The five accused were convicted of various drug and firearms-related offences - Much of the evidence against the accused had been obtained through interception of private communications, physical surveillance and surreptitious entry into premises under general warrants - On appeal, the accused Lucas asserted that searches of his vehicle and home were unreasonable because there was insufficient information to meet the condition in the warrants that authorized their execution "when reasonable grounds exist to believe that the [named items] are present" - The Ontario Court of Appeal dismissed the appeal - On reviewing the evidence, the court held that there was no basis for interference with the trial judge's finding that there was sufficient information to meet the reasonable grounds requirement - Further, the information was sufficiently recent to justify the searches - See paragraphs 218 to 229.

Criminal Law - Topic 3192

Special powers - Setting aside search warrants - Grounds - Search unreasonably conducted - [See third and fourth Criminal Law - Topic 3054 ].

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - [See Criminal Law - Topic 2673 ].

Criminal Law - Topic 4487

Procedure - Trial - Attendance of accused - [See both Civil Rights - Topic 3137 ].

Criminal Law - Topic 5039

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Effect of error by trial judge - General - [See Criminal Law - Topic 2673 ].

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where jury charge incomplete or in error - [See Criminal Law - Topic 2673 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 2673 ].

Criminal Law - Topic 5049

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where accused denied right to be present during whole of trial - [See second Civil Rights - Topic 3137 ].

Criminal Law - Topic 5273

Evidence and witnesses - Interception of private communications - "Known person" defined - The five accused were convicted of various drug and firearms-related offences - Much of the evidence against the accused had been obtained through interception of private communications, physical surveillance and surreptitious entry into premises under general warrants - On appeal, the accused Alvarez asserted that the trial judge had erred in concluding that he was properly named as a known person in the affidavit filed in support of a wiretap authorization under Part VI of the Criminal Code - The Ontario Court of Appeal dismissed the appeal - The supporting affidavit afforded reasonable grounds to believe that intercepting Alvarez' communications might assist the investigation -The trial judge had excised incorrect information regarding Alvarez from the information to obtain (ITO) the authorization - However, a body of evidence that remained in the ITO justified Alvarez' inclusion as a target - See paragraphs 170 to 173.

Criminal Law - Topic 5274.1

Evidence and witnesses - Interception of private communications - Application for - Where application based on informant's statements - [See second Criminal Law - Topic 5274.5 ].

Criminal Law - Topic 5274.3

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Affidavit - Examination or cross-examination of deponent - The five accused were convicted of various drug and firearms-related offences - Much of the evidence against the accused had been obtained through interception of private communications, physical surveillance and surreptitious entry into premises under general warrants - At issue on the accused's appeal was whether the trial judge, Nordheimer, J., had erred in refusing to permit cross-examination of the affiant of the information to obtain (ITO) a wiretap authorization under Part VI of the Criminal Code - The accused Lucas had been granted leave to cross-examine two of the sub-affiants of the ITO - In refusing leave to cross-examine the affiant, Nordheimer, J., stated briefly that he was not satisfied that the cross-examination would materially advance the issue of whether the issuing judge would have had reasonable grounds to believe that the offences referred to in the ITO had occurred or were occurring and that the authorization would afford evidence of those offences - The Ontario Court of Appeal dismissed the appeal - A trial judge had discretion whether or not to grant leave to cross-examine the affiant who filed in support of a wiretap authorization - The court set out the test for permitting cross-examination - Here, there was no basis for interfering with Nordheimer, J.'s decision - See paragraphs 142 to 151.

Criminal Law - Topic 5274.4

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Investigative necessity - [See Civil Rights - Topic 1373 ].

Criminal Law - Topic 5274.5

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Evidence in support - The five accused were convicted of various drug and firearms-related offences - Much of the evidence against the accused had been obtained through interception of private communications, physical surveillance and surreptitious entry into premises under general warrants - On appeal, the accused asserted that the trial judge had erred in failing to find that the February 16, 2006, information to obtain (ITO) was invalid because it did not identify a past or current offence in respect of which the authorization could have issued - The Ontario Court of Appeal dismissed the appeal - The ITO provided reasonable grounds to believe that the accused Lucas had been and continued to be involved in the organized trafficking of a substantial number of weapons - The court rejected the accused's argument that the authorization was prospective in nature and based only on propensity reasoning about past behaviour - The court agreed with the trial judge's conclusion that the authorizing judge was justified in finding reasonable grounds to believe that Lucas had been and continued to be engaged in weapons trafficking and that the interception of his communication would provide evidence of past and ongoing weapons-related offences - See paragraphs 127 to 141.

Criminal Law - Topic 5274.5

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Evidence in support - The five accused were convicted of various drug and firearms-related offences - Much of the evidence against the accused had been obtained through interception of private communications, physical surveillance and surreptitious entry into premises under general warrants - At issue on the accused's appeal was whether the trial judge, Molloy, J., had erred by not excising certain information contained in the information to obtain (ITO) filed in support of a wiretap authorization under Part VI of the Criminal Code - The accused Alvarez asserted that if certain erroneous information had been excised, the ITO would not have provided sufficient grounds to meet the requirement that an "identifiable specific" offence had been or was being committed by the targets on the day the authorization was granted - The Ontario Court of Appeal dismissed the appeal - The only information that should have been excised was information provided by one of the confidential informants, who provided little relevant, corroborated information concerning criminal activity in the relevant area - However, this would have been obvious to the authorizing judge - Excising the information provided by that informant would not have affected the authorization's validity - Nothing turned on the error - See paragraphs 152 to 165.

Criminal Law - Topic 5274.5

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Evidence in support - The five accused were convicted of various drug and firearms-related offences - Much of the evidence against the accused had been obtained through interception of private communications, physical surveillance and surreptitious entry into premises under general warrants - At issue on the accused's appeal was whether the information to obtain (ITO) filed in support of a wiretap authorization under Part VI of the Criminal Code failed to disclose reasonable grounds that an "identifiable specific" crime had been or was being committed - The accused Alvarez asserted that the type of reasoning presented in the ITO would permit the granting of an authorization whenever the police could demonstrate historic criminal activities of the targets, rather than information regarding the commission of an identifiable offence - The Ontario Court of Appeal dismissed the appeal - The material filed in support of the ITO provided ample reasonable grounds to believe that evidence of particular offences might be obtained through the wiretap authorization, including evidence of participation in a criminal organization and of an ongoing conspiracy by the named targets to traffic in weapons and controlled drugs and substances on behalf of a criminal organization - A street gang did not come into existence overnight, nor did it disappear overnight - For that reason, some of the evidence in the ITO that might otherwise appear to be dated remained relevant - See paragraphs 166 to 169.

Criminal Law - Topic 5553

Evidence and witnesses - Proof of particular matters - Possession - [See Criminal Law - Topic 10.2 ].

Evidence - Topic 4149

Witnesses - Privilege - Privileged topics - Evidence on police informants - [See both Civil Rights - Topic 3137 ].

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity or location of police informants - [See both Civil Rights - Topic 3137 ].

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - The five accused were convicted of various drug and firearms-related offences - Much of the evidence against the accused had been obtained through interception of private communications under general warrants - On appeal, the accused Coyle asserted that the trial judge had erred by allowing the Crown's expert witness to give opinion evidence about the meaning of coded language in a hypothetical conversation between drug dealers - Because the hypothetical conversation was not meaningfully different from the actual intercepted communications that were in evidence, Coyle asserted that the Crown had effectively sought to have the expert offer an opinion on the ultimate question for the jury, namely the meaning of the actual conversations - The Ontario Court of Appeal dismissed the appeal - There was no longer a general prohibition on expert evidence regarding the ultimate issue - The gatekeeper function of the trial judge regarding the admissibility of expert evidence required an assessment of the costs and benefits of admitting the evidence as part of determining its legal relevance - Here, the trial judge made the assessment in the context of all the circumstances and admitted the evidence - There was no basis on which to interfere with that conclusion - See paragraphs 265 to 274.

Evidence - Topic 7000.5

Opinion evidence - Expert evidence - General - Nature and scope of - [See Evidence - Topic 7000.4 ].

Evidence - Topic 7013

Opinion evidence - Expert evidence - General - Use of hypothetical questions - [See Evidence - Topic 7000.4 ].

Police - Topic 3146

Powers - Forcible entry - Of premises - [See third and fourth Criminal Law - Topic 3054 ].

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, refd to. [para. 22].

Vancouver Sun et al. v. Canada (Attorney General) et al., [2007] 3 S.C.R. 253; 368 N.R. 112; 247 B.C.A.C. 1; 409 W.A.C. 1; 2007 SCC 43, refd to. [para. 46].

R. v. Basi (U.S.), [2009] 3 S.C.R. 389; 395 N.R. 240; 277 B.C.A.C. 305; 469 W.A.C. 305; 2009 SCC 52, refd to. [para. 49].

R. v. Hertrich, Stewart and Skinner (1982), 67 C.C.C.(2d) 510 (Ont. C.A.), refd to. [para. 50].

R. v. Barrow, [1987] 2 S.C.R. 694; 81 N.R. 321; 87 N.S.R.(2d) 271; 222 A.P.R. 271, refd to. [para. 50].

R. v. Pilotte (L.H.) (2002), 156 O.A.C. 1; 163 C.C.C.(3d) 225 (C.A.), refd to. [para. 58].

R. v. Basi (U.S.) (2008), 257 B.C.A.C. 253; 432 W.A.C. 253; 2008 BCCA 297, refd to. [para. 59].

R. v. Simon (A.D.) (2010), 269 O.A.C. 359; 104 O.R.(3d) 340; 2010 ONCA 754, refd to. [para. 70].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 76].

R. v. Tse (Y.F.A.), [2012] 1 S.C.R. 531; 429 N.R. 109; 321 B.C.A.C. 1; 547 W.A.C. 1; 2012 SCC 16, refd to. [para. 78].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 78].

R. v. Rodgers - see R. v. Jackpine (R.).

R. v. Jackpine (R.), [2006] 1 S.C.R. 554; 347 N.R. 201; 210 O.A.C. 200; 2006 SCC 15, refd to. [para. 79].

R. v. Finlay and Grellette (1985), 11 O.A.C. 279; 23 C.C.C.(3d) 48 (C.A.), leave to appeal refused, [1985] S.C.C.A. No. 46, refd to. [para. 81].

R. v. Duarte - see R. v. Sanelli, Duarte and Fasciano.

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, refd to. [para. 82].

R. v. S.A.B. et al., [2003] 2 S.C.R. 678; 311 N.R. 1; 339 A.R. 1; 312 W.A.C. 1; 2003 SCC 60, refd to. [para. 87].

R. v. Largie (G.) et al. (2010), 266 O.A.C. 103; 2010 ONCA 548, leave to appeal refused (2011), 425 N.R. 395 (S.C.C.), agreed with [para. 89].

R. v. Mahal (K.) (2012), 297 O.A.C. 376; 113 O.R.(3d) 209; 2012 ONCA 673, leave to appeal denied (2013), 453 N.R. 400 (S.C.C.), refd to. [para. 94].

R. v. Doiron (E.) (2007), 315 N.B.R.(2d) 205; 815 A.P.R. 205; 221 C.C.C.(3d) 97; 2007 NBCA 41, leave to appeal refused (2007), 383 N.R. 393; 333 N.B.R.(2d) 429; 855 A.P.R. 429 (S.C.C.), refd to. [para. 97].

R. v. Largie (G.), [2004] O.T.C. 1193 (Sup. Ct.), refd to. [para. 98].

Société Radio-Canada v. Nouveau-Brunswick (Procureur général) et autres, [1991] 3 S.C.R. 459; 130 N.R. 362; 119 N.B.R.(2d) 271; 300 A.P.R. 271, refd to. [para. 99].

R. v. Brooks (T.L.) (2003), 176 O.A.C. 337; 178 C.C.C.(3d) 361 (C.A.), refd to. [para. 115].

United States v. Ricciardelli (1993), 998 F.2d 8 (1st Cir.), refd to. [para. 116].

R. v. Chesson and Vanweenan, [1988] 2 S.C.R. 148; 87 N.R. 115; 90 A.R. 347, refd to. [para. 121].

R. v. TELUS Communications Co., [2013] 2 S.C.R. 3; 442 N.R. 1; 304 O.A.C. 1; 2013 SCC 16, refd to. [para. 123].

R. v. Thompson et al., [1990] 2 S.C.R. 1111; 114 N.R. 1, refd to. [para. 124].

R. v. Madrid (L.A.) et al. (1994), 48 B.C.A.C. 271; 78 W.A.C. 271 (C.A.), refd to. [para. 132].

R. v. Pires; R. v. Lising - see R. v. Lising (R.) et al.

R. v. Lising (R.) et al., [2005] 3 S.C.R. 343; 341 N.R. 147; 217 B.C.A.C. 65; 358 W.A.C. 65; 2005 SCC 66, refd to. [para. 147].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 152].

R. v. Grant (I.M.) (1998), 131 Man.R.(2d) 36; 187 W.A.C. 36; 130 C.C.C.(3d) 53 (C.A.), refd to. [para. 166].

R. v. Paterson, Ackworth and Kovach (1985), 7 O.A.C. 105; 18 C.C.C.(3d) 137 (C.A.), refd to. [para. 179].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142, refd to. [para. 208].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 238].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 241].

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 246].

R. v. Cornell (J.M.) (2010), 404 N.R. 133; 487 A.R. 1; 495 W.A.C. 1; 2010 SCC 31, refd to. [para. 254].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 271].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9; 97 O.R.(3d) 330; 2009 ONCA 624, refd to. [para. 271].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 186(1), sect. 186(1.1) [para. 73]; sect. 487.01 [para. 105].

Authors and Works Noticed:

Ontario, The Report of the Inquiry into Pediatric Forensic Pathology (2008), v. 3, p. 433 [para. 266].

Counsel:

Joseph Wilkinson, for the appellant, Steven Lucas;

Michael Dineen, for the appellant, Vinh Ban Chau;

P. Andras Schreck, for the appellant, Ryan Coyle;

Michael W. Lacy, for the appellant, Stefan Rosa;

Richard Adam Fedorowicz, for the appellant, Jose Alvarez;

John McInnes, Frank Au and Karen Papadopoulos, for the respondent.

These appeals were heard on December 16-19, 2013, by Rosenberg, Goudge and van Rensburg, JJ.A., of the Ontario Court of Appeal. On July 23, 2014, the court released the following judgment.