R. v. Adam et al

2006 BCSC 91internet2 R. v. Adam et al IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Adam et al, 2006 BCSC 91 Date: 20060119 Docket: X067362 Registry: New Westminster Regina Against Wade Alex Adam, Sean William Doak, Robert Vaughn Hamm, Bryon John Newberry, Shane Jason Schindler, Thomas William Westle and Trevor Lee Ernest Zacharuk THIS COURT ORDERS THAT ALL EVIDENCE TAKEN AND SUBMISSIONS MADE IN THIS PROCEEDING AT ANY TIME WHEN THE JURY IS NOT PRESENT SHALL NOT BE PUBLISHED IN ANY NEWSPAPER, INTERNET OR OTHER BROADCAST UNTIL THE JURY HAS RENDERED ITS VERDICT. THIS ORDER IS MADE PURSUANT TO THE INHERENT JURISDICTION OF THIS COURT This Court orders a ban on and prohibits the publication in print and the broadcasting on television, film, radio and the Internet of any information tending or serving to publicly identify the undercover police officers in the investigation of the accused in this matter, including but not limited to, any likeness of the officers, the appearance of the officers' attire and the officers' physical description. Before: The Honourable Mr. Justice S.R. Romilly Standing Application Counsel for the Crown Clyde Bond Mandana Namazi Leslie LeClair Counsel for the Accused, Wade Alex Adam and Sean William Doak John Conroy, Q.C. Counsel for the Accused, Robert Vaughn Hamm Darcy P. Lawrence Counsel for the Accused Bryon John Newberry Alexander Murray Counsel for the Accused, Thomas William Westle Robert Gunnell Counsel for the Accused, Trevor Lee Ernest Zacharuk Kenneth R. Beatch Date and Place of Hearing: January 18, 2006 New Westminster, B.C. A. NATURE OF THE APPLICATION [1] The Accused and Applicants, Wade Alex Adam, Robert Vaughn Hamm and Thomas William Westle (the "Applicants") are charged with conspiracy to export marihuana and conspiracy to traffic marihuana pursuant to s. 465(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46. The evidence that will be submitted in support of these charges comes in large part from a series of wiretaps granted by the British Columbia Supreme Court between August of 2000 and May of 2001. [2] The first of these wiretaps is referred to as P1-2000, and was granted by Mr. Justice Grist on August 30, 2000. P1-2000 was issued pursuant to an investigation of murder and conspiracy to commit murder. Through communications intercepted pursuant to P1-2000, the police also learned of activities with respect to the importing and trafficking of illegal narcotics. In this regard, P1-2000 provided the basis for the authorizations that followed in furtherance of the narcotics investigation. [3] The Applicants concede that since they did not have any communications intercepted pursuant to P1-2000, they do not have standing to challenge P1-2000 under s. 8 of the Charter. Instead, they submit that they should be granted standing to challenge P1-2000 under s. 7 or s. 11(d) of the Charter. [4] For the reasons that follow, the application is dismissed. B. THE LAW [5] Although the Applicants have conceded that they do not have standing under s. 8 of the Charter, I nonetheless find it necessary to begin my review of the law with s. 8. [6] In the leading case of R. v. Edwards, [1996] 1 S.C.R. 128 [Edwards], police used "lies and half-truths" to gain entry into the residence of the girlfriend of the accused. In her apartment, the police discovered narcotics belonging to the accused. [7] The Supreme Court of Canada concluded that because the accused had no reasonable expectation of privacy in his girlfriend's apartment, he had no standing under s. 8 of the Charter to challenge the manner in which the narcotics were obtained. The Court set out the following principles governing search and seizure under s. 8 of the Charter at para. 45: 1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed: see R. v. Rahey, [1987] 1 S.C.R. 588 at p. 619. 2. Like all Charter rights, s. 8 is a personal right. It protects people and not places. See Hunter, supra. 3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated: see Pugliese, supra. 4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy[?]. Second, if he has such an expectation, was the search by the police conducted reasonably[?]: see Rawlings, supra. 5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. See Colarusso, supra, at p. 54 and Wong, supra, at p. 52. 6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. [citation omitted] 7. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner. I have set out these principles in their entirety to demonstrate the balance that the Supreme Court of Canada struck with respect to the law of search and seizure. [8] In the specific context of wiretap authorizations, Burrows J. made the following observation in R. v. Lam, [2004] A.J. No. 431, 2004 ABQB 289 [Lam] at para. 13: The Supreme Court has not yet had occasion to consider the application of the principle it adopted in Edwards in a wiretap or conspiracy context. However the Courts of Appeal of Ontario, British Columbia and Quebec have: R. v. Shayesteh, (1996) 111 C.C.C. (3d) 225 (Ont. C.A.); R. v. Cheung (1997) 119 C.C.C. (3d) 507 (B.C.C.A.); R. v. Rendon (1998) 140 C.C.C. (3d) 12 (Que. C.A.). In these appellate cases as in Lam, it has been upheld that if an accused has no reasonable expectation of privacy in the intercepted communications at issue, he has no standing under s. 8 to challenge the admissibility of the evidence under s. 24(2) of the Charter. [9] Against this background, I will now consider the Applicants' position with respect to standing under s. 7 and s. 11(d) of the Charter. [10] The Applicants concede that there is no appellate jurisprudence that directly supports their position. They assert, however, that they are supported by a British Columbia Supreme Court case and an Alberta Provincial Court case that are directly on point. They also note that their position is supported, though less directly, by other appellate authority. [11] The British Columbia case that the Applicants refer to is R. v. Wasfi, 2003 BCSC 1127 [Wasfi]. In Wasfi, eleven wiretap authorizations were issued in a sequence pursuant to both a narcotics investigation and a murder investigation. As in the present case, earlier authorizations produced evidence that established the basis for granting later authorizations. [12] The accused in Wasfi was charged with first degree murder. Under s. 8, he only had standing to challenge the fourth, sixth and seventh authorizations in the series. He contended, however, that he would not be able to defend himself adequately if he could not challenge all the authorizations, given that they were so closely linked together. [13] In his ruling, Fraser J., reviewed the jurisprudence with respect to s. 8 and reiterated that there is no standing to challenge a search and seizure without a reasonable expectation of privacy. He restated the principle from Edwards that there is no basis for a person to obtain a remedy under s. 24(2) unless that person's Charter rights have been infringed (para. 19). [14] However, Fraser J. expressed some concerns about the application of the Edwards principle to certain investigations involving the interception of private communications at paras. 23-24: When it comes to the interception of private communications, the Edwards principle sometimes fits awkwardly. It does so in this case, where there was a lengthy, evolving investigation and a series of wiretap authorizations based, at least in part, from information obtained in the course of prior interceptions. The awkwardness is compounded because an accused who challenges an authorization on the basis of the lack of investigative necessity must do so on the circumstances of the investigation as a whole and may not confine his submissions to investigative necessity concerning himself only . This being so, the privacy rights of others necessarily come into play. Consequently, Fraser J. issued the following ruling at para. 26: This is my ruling on the issue of the standing of the accused to challenge authorizations for interceptions of private conversations. The accused is entitled to have me scrutinize the authorizations which counsel and I have referred to during submissions as numbers one, two, three and five, in the same manner as could an accused with standing to do so. He may do so as part of his challenges to authorizations four, six and seven, in which he has standing of his own. Without limiting the generality of the foregoing, the accused may submit that the legality and manner of interceptions made under authorizations one, two, three and five are relevant to his challenges to authorizations, four, six and seven. My understanding is that authorizations eight, nine, ten and eleven are not in issue. Fraser J. went on to qualify his ruling at para. 27: In this Ruling, I do not hold that Mr. Wasfi has standing with respect to any authorization other than the fourth, sixth and seventh, nor do I hold that evidence surrounding other authorizations necessarily is relevant to those three. I hold that the defence is entitled to submit that it has relevance. In order to do so, the defence must be permitted to scrutinize the other authorizations in the same manner as if Mr. Wasfi had standing. Fraser J. concluded at para. 31: Thus, while earlier authorizations may not be "constitutionally relevant" to the fourth, sixth and seventh authorizations, I conclude that the evidence surrounding those authorizations and the manner in which evidence was gathered during those authorizations may be factually relevant. [15] In a subsequent application in R. v. Wasfi, 2003 BCSC 622, the Crown sought to present evidence obtained pursuant to the sixth and seventh authorizations. Given his earlier ruling, Fraser J. allowed the accused to challenge earlier authorizations to the extent that it was relevant to the challenge of the later authorizations at issue. Based on this review, Fraser J. concluded that the police had not fulfilled the requirement of investigative necessity for the first authorization. He further noted that after the first authorization was granted, the police mainly abandoned non-wiretap avenues of investigation. Thus, although the accused did not have standing to challenge the earlier authorizations, he was able to demonstrate a lack of investigative necessity that persisted from the first authorization to the impugned sixth and seventh authorizations. As a result, Fraser J. concluded that the sixth and seventh authorizations did not satisfy the requirement of investigative necessity. [16] The other case submitted by the Applicants as being directly on point is R. v. Clarke (1996), 182 A.R. 198 (Prov. Ct. (Crim. Div.)) [Clarke]. In Clarke, a telephone conversation was intercepted between one of the accused and another individual. Neither party to the call was named in the authorization, but the call was placed using a cell phone that was subject to interception. The authorization stated, however, that only calls placed by a specific person on the cell phone were to be intercepted. Nevertheless, the Crown sought to have the contents of the call between the accused and the other individual submitted as evidence. [17] The Court found that the intercepted call constituted a violation of the accused's s. 8 rights and accordingly excluded the contents of the cell phone conversation pursuant to s. 24(2). The Court then went on to consider whether the remaining two accused, neither of whom were parties to the communication, were also entitled to a similar remedy. [18] The Court concluded that the remaining two accused were entitled to have the evidence of the cell phone conversation excluded. Although the Court provided alternate bases for this conclusion, only the Court's reasoning with respect to s. 7 and s. 11(d) of the Charter is relevant to the present application. [19] The Court at para. 40, drew upon the remarks of La Forest J. in R. v. Harrer, [1995] 3 S.C.R. 562 at paras. 23-24 [Harrer], for the following propositions: [A] judge has a discretion to exclude evidence that would, if admitted, undermine a fair trial [T]his is a necessary adjunct to a fair trial as guaranteed by s. 11(d) of the Charter. The right of an accused to a fair hearing [is also] protected by s.7 as an aspect of the principles of fundamental justice. [J]udges must, as guardians of the Constitution, exercise this discretion where necessary to give effect to the Charter's guarantee of a fair trial. In a word, there is no need to resort to s. 24(2), or s. 24(1) for that matter. In such circumstances, the evidence is excluded to conform to the constitutional mandate guaranteeing a fair trial. [20] Fradsham P.C.J. noted that the call at issue was obtained in violation of the criminal law, without authorization, and in circumstances of bad faith. Based on the propositions expressed in Harrer, Fradsham P.C.J. determined that the call must be excluded from evidence as against all the accused. [21] A more recent case from the Alberta Court of Queen's Bench is less supportive of the Applicants' position. In R. v. Trang, [2001] A.J. No. 1498, 2001 ABQB 857 [Trang], an accused sought standing to challenge an intercepted call under s. 8 and s. 7 of the Charter. Having found that the accused had no reasonable expectation of privacy and thus no standing under s. 8, the Court proceeded to consider standing under s. 7. At paras. 23-24, Binder J. made the following comments: With regard to s. 7, the Applicants assert that they should be accorded standing based on their anticipation that during the Garofoli hearing it will be demonstrated that the wiretap authorizations obtained by the Police were not in accordance with the letter and spirit of the Charter and undermine Charter values; the process used to obtain the authorizations and the collecting of that evidence was abusive and its admissibility would prejudice the trial process; the Police obtained the authorizations for an oblique purpose, namely to investigate through wiretap drug trafficking offences for one year rather than the usual thirty to sixty day period; no thought was given to judicial minimization of the one year period of the authorization; the Police although paying lip service to "investigative necessity" in obtaining the authorization had no investigative necessity in the circumstances, and the scope and duration of the wiretap authorizations were abusive, and the admission of the evidence obtained therefrom would prejudice the trial process. These generalities do not, in my view, provide an accused with standing under s. 7 of the Charter to challenge the admissibility of third party intercepts intended to be introduced into evidence by the Crown, where the accused is neither the originator nor the recipient of the calls. [22] It is clear that I have discretion to exclude evidence under s. 7 and s. 11(d) of the Charter, even where a right of the individual applicant has not been directly infringed. The degree to which s. 7 can found the standing that the Applicants seek in this case is more tenuous. I will now discuss this issue in more detail. C. ANALYSIS [23] In ruling upon this application, I am very mindful of the fact that the Supreme Court of Canada has set out what it has judged to be a proper balance with respect to the law of search and seizure in Canada under s. 8 of the Charter. Under this balance, the general rule of standing is that only persons whose reasonable expectation of privacy has been infringed may challenge the manner in which any resulting evidence has been obtained. This principle has been clearly enunciated in Edwards and a host of other decisions. [24] In this case, the Applicants are seeking what I might refer to as indirect standing to raise a s. 8 challenge. They are advancing this circuitous route because, as they concede, they are not able to seek standing directly. [25] The Applicants have attempted to demonstrate that even where an accused does not have standing to challenge a search and seizure under s. 8, he may still have standing under s. 7 or s. 11(d). I am alert to the Supreme Court of Canada's decision in Harrer and appreciate that there are circumstances where a judge must exercise discretion to exclude evidence, particularly where the admission of such evidence would result in an unfair trial. However, I find that it was not the Court's intention to provide alternate grounds for standing in the context of search and seizure challenges. Such a general finding would effectively sweep away the restrictive standing rules that the Court established as part of the balance under s. 8. [26] I have reviewed Fraser J.'s reasoning in Wasfi. I find his disposition of the matters before him to have been quite novel. I do not, however, choose to apply the same procedure in this case. D. CONCLUSION [27] From the foregoing, the Applicants are not granted standing to challenge P1-2000. "S.R. Romilly, J." The Honourable Mr. Justice S.R. Romilly April 3, 2006 - Revised Judgment This Court orders a ban on and prohibits the publication in print and the broadcasting on television, film, radio and the Internet of any information tending or serving to publicly identify the undercover police officers in the investigation of the accused in this matter, including but not limited to, any likeness of the officers, the appearance of the officers' attire and the officers' physical description.