R. v. Pilarinos

2001BCSC1725 Citation: HMTQ v. Pilarinos and Clark Date: 20011211 2001 BCSC 1725 Docket: CC001402 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA HER MAJESTY THE QUEEN AGAINST DIMITRIOS PILARINOS AND GLEN DAVID CLARK SUPPLEMENTAL REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE BENNETT Counsel for the Crown W. Smart Q.C., J. Esson Counsel for the Accused, Pilarinos I. Donaldson Q.C., D. Clements Counsel for the Accused, Clark D. Gibbons Q.C., R. Fowler, M. Nathanson Date and Place of Hearing: December 6 and 7, 2001 Vancouver,B.C. [1] These reasons follow the ruling dated December 4, 2001, (2001 BCSC 1690), regarding whether the wiretap authorization granted February 14, 1999 was lawfully obtained. I ruled that the wiretap was lawfully obtained. At the outset of the arguments, counsel for the defence wished to bifurcate the application. They sought to make the arguments pursuant to the admissibility of the evidence pursuant to s. 24(2) of the Charter after they received the ruling on whether there was a breach of the Charter. I acceded to this request. Counsel for the defence were reluctant to make submissions in relation to section 24(2) after the main ruling. However, in my experience, it is helpful for the appellate court to have the trial judge's ruling on s. 24(2), even if it is in the alternative. I add that it would have better if the arguments had proceeded together, rather than divide them as I did. THE COLLINS TEST [2] I intend to proceed by briefly summarizing the relevant law in relation to ss. 24(1) and (2) of the Charter and then apply the law to the facts in the case at bar. [3] Evidence may be excluded pursuant to ss. 24(1), 24(2), or pursuant to a trial judge's common law power to exclude evidence if the admission of the evidence would render the trial unfair. Further, if there was no breach of a Charter right, but the admission of the evidence would violate the Charter, a judge may rely on s. 24(1): See R. v. White [1999] 2 S.C.R. 417, 24 C.R. (5th) 201 at paras. 84-89. [4] I mention s. 24(1) as the analysis pursuant to s. 24(2) is not easily applied to one of the issues in this case. [5] Section 24 reads as follows: 24.(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [6] A Charter breach does not result in the automatic exclusion of evidence: R. v. Grant (1993), 84 C.C.C. (3d) 173 (S.C.C.). [7] The general question posed is whether the admission of the evidence could bring the administration of justice into disrepute in the eyes of a reasonable person, dispassionate and fully apprised of the circumstances of the case. The reasonable person is usually the average person in the community, but only when the community's mood is reasonable: See R. v. Collins (1987), 56 C.R. (3d) 193 at 205 (S.C.C.). [8] In R. v. Collins, supra, three factors were established for the Court's consideration when determining whether to exclude evidence: i) Trial fairness; ii) Seriousness of the Breach; and iii) Effects of Exclusion [9] In this case, there are three bases upon which the authorization could be found to be unlawful: lack of jurisdiction, an apprehension of bias and failing to comply with the requirements of s. 186 of the Criminal Code. Each has separate considerations under the Collins factors. TRIAL FAIRNESS [10] The question is whether the admission of the evidence will, in some way, adversely affect the fairness of the trial. If so, the admission of the evidence would tend to bring the administration of justice into disrepute. The Court will look at the nature of the evidence: was it 'real' evidence which existed irrespective of the Charter violation, was it discoverable regardless of the breach or was it evidence which was conscripted from the accused? [11] The first step is to determine whether the evidence was conscriptive or non-conscriptive based upon the manner in which the evidence was obtained. If the evidence is non-conscriptive, then its admission will not render the trial unfair: See R. v. Stillman (1997), 113 C.C.C. (3d) 321 (S.C.C.). [12] Counsel agreed that, as the law now stands, evidence obtained as a result of an unlawful wiretap is non-conscriptive evidence: See R. v. Rendon (1999), 140 C.C.C. (3d) 12 (Que.C.A.), R. v. Grewal [2000] B.C.J. 2383 (B.C.S.C.) at para. 93. SERIOUSNESS OF THE BREACH [13] The second set of factors is concerned with the impact of the breach on the accused and the conduct of the police. The seriousness of the breach will depend on the context of the case. In a case involving a section 8 violation, the seriousness will increase depending on the expectation of privacy. There is a high expectation of privacy in relation to telephone conversations. [14] The measure of the seriousness of the violation is a function of the deliberate or non-deliberate nature of the violation by the authorities, circumstances or urgency and necessity and other factors. Good faith by the police will not cure an unfair trial. The second set of factors in Collins are an alternate ground of exclusion, not admission: See R. v. Elshaw (1991), 67 C.C.C. (3d) 97 (S.C.C.). [15] Another important factor is the good faith of the police. The purpose of s. 24(2) is not to punish the police, but a Court should be reluctant to admit evidence if the police have obtained the evidence by an abuse of the common law or the Charter: See R. v. Genest (1989), 45 C.C.C. (3d) 385, R. v. Kokesch (1990), 1 C.R. (4th) 62. [16] Where the violation has resulted from inadvertence, good faith or a technical error, this factor will mitigate the seriousness of the breach: R. v. Belnavis (1997), 118 C.C.C. (3d) 405 (S.C.C.). [17] Good faith in s. 8 violations means that state of mind which relies upon express statutory authority to support the lawfulness of the search: R. v. Klimchuk (1991), 8 C.R. (4th) 327 (B.C.C.A.). [18] Two acts that may bring the administration of justice into disrepute are physical mistreatment of persons in custody or not telling the truth upon oath, whether from dishonesty or gross carelessness: See R. v. Dellapenna (1995), 62 B.C.A.C. 32 (C.A.). EFFECTS OF EXCLUSION [19] The third set of factors examines the public interest in the prosecution. These factors include the seriousness of the offence and the importance of the evidence to the prosecution's case. [20] The Court must consider the effect of exclusion and in particular whether it will call the administration of justice into disrepute. The Court must balance the long-term consequences on the administration of justice of admitting evidence obtained as a result of a breach against the consequences of excluding it: See R. v. Greffe (1990), 55 C.C.C. (3d) 161; R. v. Church of Scientology (1997), 7 C.R. (5th) 276 (Ont. C.A.). JURISDICTION [21] I found that Associate Chief Justice Dohm had the jurisdiction to issue a wiretap authorization for British Columbia and other parts of Canada when he was in Palm Springs, California. I also found that if I erred in this conclusion, that the subsequent search was unreasonable. If the search was unreasonable, then section 8 of the Charter has been breached. [22] It is clear from the authorities that the admission of the evidence would not affect trial fairness as it is non-conscriptive. Is trial fairness otherwise affected? In these circumstances, I think not. I will expand on this conclusion while discussing the second set of factors. [23] I have indicated that the invasion of private telephone calls is highly intrusive, and therefore a serious breach of the Charter. I accept the defence submission in this regard. However, the Court must also look at how the breach arose. In this case, the police were operating in good faith. They thought they had a valid authorization, and they thought they were proceeding lawfully. I do not accept the submission that the police and the Crown ought to have known that the judge could not issue an authorization from California. Associate Chief Justice Dohm told them that he was seized of all applications and told them to come to California. No fault can lay with the police or the Crown for attending in California. [24] Therefore, although the breach is serious, the police were operating in good faith. I would not exclude the evidence under this factor. [25] The effects of exclusion is the third factor to consider. The charges in this case are serious from a public point of view. They do not carry high maximum sentences, but nonetheless, the acts, as alleged by the Crown, can be seen to go to the core of a democratic society. [26] On the other hand, the evidence, I am told, is not critical to the Crown case. It is important evidence says the Crown, but the case will still proceed if the evidence is excluded. The defence minimizes the nature of the evidence. [27] A perusal of the evidence indicates that it is not insignificant, on the other hand, it is not the core of the Crown's case. On balance, applying the above-noted considerations, I would not exclude the evidence under this factor. [28] Therefore, if the only breach of the Charter was the lack of jurisdiction, I would admit the evidence pursuant to s. 24(2) of the Charter. APPREHENSION OF BIAS [29] If there was an apprehension of bias arising from the conduct, primarily of Associate Chief Justice Dohm, assisted in that end by the Crown and the police, then the authorization is void. I find that, in these circumstances, the ensuing search would be unreasonable. [30] Logically, the same analysis that was applied to the jurisdictional argument should also apply to the bias argument and render the evidence admissible. The Collins factors are difficult to apply in the context of an apprehension of bias. Applying the Collins factors, I could only conclude that the evidence should be admitted. However, I do not come to this conclusion. In my view, if there was an apprehension of bias, the admission of the evidence would render the trial unfair. I must therefore rely on either s. 24(1) or my common law jurisdiction to exclude evidence in such circumstances. [31] If an apprehension of bias is found on appeal, a new trial will be ordered to ensure that the proceedings are not tainted with suspicion: See R. v. Curragh, [1997] 1 S.C.R. 537, Canada (Minister of Citizenship and Immigration v. Tobiass, [1997] 3 S.C.R. 391. I do not suggest that in all cases of an apprehension of bias there must be automatic exclusion. Each case must be decided within its own context. [32] In this case, the cumulative effect of the evidence, as described in the earlier reasons, at para. 144, leads me to conclude that it would be unfair to admit the evidence. Although there was no actual bias alleged, the public perception is important. It is important that evidence obtained when justice was not "manifestly and undoubtedly be seen to be done", be excluded from consideration, at least in the context of these facts. COMPLIANCE WITH S. 186 OF THE CRIMINAL CODE [33] The challenge regarding s. 186 was aimed at the two main requirements of the section, paraphrased as: whether there were reasonable and probable grounds to believe an offence had been or will be committed and whether the requirement for other investigatory means had been met. [34] If I erred and should have excised the evidence of the informer, Mr. Vrahnos, there would not have been sufficient evidence to support a finding that there were reasonable and probable grounds, and therefore the authorization would not be valid. The defence submitted that the evidence of Mr. Vrahnos would have been severely compromised in the eyes of Associate Chief Justice Dohm if the police had fully disclosed all that they knew about him, or all that they should have known about him. Further, the defence argued that the police should have known about an earlier resolution from the Burnaby Municipal Council and disclosed that as well. I did find that the police ought to have known about an incident involving Mr. Vrahnos at the Lumbermen's Social Club in June, 1998. [35] Again, trial fairness would not be affected as the evidence was non-conscripted. [36] The violation is, as stated earlier, a significant infringement on the privacy rights of those named in the authorization. [37] If I was correct in my assessment that the police could not have reasonably known about the information that came to light later, then they have acted in good faith. If I am wrong in that assessment, then it cannot be said that the police acted in good faith. In those circumstances, they would have been reckless or wilfully blind. There is no evidence to support a deliberate attempt to mislead Associate Chief Justice Dohm. [38] Therefore, weighing the seriousness of the violation, along with the conduct of the police, I conclude that the evidence would be admissible if the police could not have reasonably been aware of the evidence which came to light later, including the November resolution of the Burnaby Municipal Council, the Ouzeri letter moving through a number of departments, and the Burnaby Planning file regarding references to Councillor Young. [39] If the police were reckless or wilfully blind, then the lack of good faith of the police would not assist to balance the seriousness of the violation and the evidence would have to be excluded, as its admission would bring the administration of justice into disrepute. [40] The effect of the evidence, as noted above, would not weigh in favour of exclusion. [41] The final argument is based on the police not pursuing other investigatory means. The authorization would not be valid if this standard was not met. There was little the police could otherwise have done, at this stage of the investigation. Again, only the second factor is in issue. I find the police acted in good faith in this regard, which balances the seriousness of the allegation. The evidence would be admissible pursuant to s. 24(2). [42] In summary: 1. If Associate Chief Justice Dohm did not have jurisdiction to issue the wiretap authorization from Palm Springs, California, the evidence is admissible pursuant to s. 24(2) of the Charter. 2. If there was an apprehension of bias displayed, the evidence should be excluded pursuant to the Court's common law power. 3. If the police did not comply with s. 186(1)(a), but acted in good faith, the evidence is admissible pursuant to s. 24(2). If they did not act in good faith, the evidence should be excluded. 4. If the police failed to comply with s. 186(1)(b), the evidence is admissible pursuant to s. 24(2). "E.A. Bennett, J." The Honourable Madam Justice E.A. Bennett