IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*R. v. Tse,*
	2008 BCSC 211

Date: 20080222
Docket: 23900
Registry: Vancouver

Regina

Yat Fung Albert Tse, Viet Bac Nguyen, Nhan Trong Ly,
Daniel Luis Soux, Huong Dac Doan
and Myles Alexander Vandrick

BAN ON PUBLICATION PURSUANT
TO s. 648 of the Criminal Code
- The publication ban expired on September 9, 2008.

Before: The Honourable Mr. Justice Davies

Ruling on Constitutional Validity of s. 184.4 of Criminal Code
and Validity of Wiretap Authorizations P‑12 and P‑17

Counsel for the Crown:	J.C. Bellows, Q.C. S.P. Lakshman A.S. Burton T.A. Shaw
Counsel for the Attorney General of Canada (January 15, 2008, only):	C.J. Tobias
Counsel for the Accused Tse:	S.R.A. Buck A.D. Srivastava
Counsel for the Accused Nguyen:	R.C. Claus
Counsel for the Accused Ly:	B.V. Bagnall
Counsel for the Accused Soux:	I. Donaldson, Q.C. N. Mason T.L. Chamberlain
Counsel for the Accused Doan:	K.S. Westlake, Q.C.
Counsel for the Accused Vandrick:	T.B. Doust
Dates and Place of Hearing:	November 13‑16, 19‑23, 26‑30 and December 3‑7, 10‑14, 17‑21, 2007; and January 7‑11, 14‑18, 2008
	Vancouver, B.C.

TABLE OF CONTENTS

						Page
I.	INTRODUCTION				5
II.	ISSUES				6
III.	BACKGROUND				7
IV.	ANALYSIS AND DISCUSSION				46
	A.	THE CONSTITUTIONAL VALIDITY OF S. 184.4 OF THE CODE			47
		(1)	Is s. 184.4 void for vagueness?		54
			(a)	Subsection 184.4(a)	63
			(b)	Subsection 184.4(b)	69
			(c)	Subsection 184.4(c)	70
		(2)	Is s. 184.4 of the *Code* overly broad?		72
		(3)	Does s. 184.4 of the *Code* contravene the right to be free from unreasonable search and seizure under s. 8 of the *Charter*?		76
			(a)	Electronic surveillance as a “last resort” investigative mechanism only for the most serious offences in the Code	81
			(b)	Strict time limits on authorizations	82
			(c)	Judicially imposed conditions and restrictions deemed advisable in the public interest	83
			(d)	Authorizes renewals only on a showing of cause, the detailing of all interceptions made prior to the request for authorization and the number of previous authorizations	83
			(e)	Mandates that notification be given to the persons whose communications have been intercepted	84
			(f)	Requires the preparation of a comprehensive report to Parliament of all electronic surveillance	86
			(g)	Engages the Attorney General of the province in which the application for an authorization is brought or the Solicitor General of Canada (or duly appointed agents)	87
			(h)	Provides that authorizations may only issue on the order of a Superior Court Judge	87
		(4)	Is the definition of “peace officer” in s. 184.4 of the *Code* so broad that the section is unconstitutional?		92
		(5)	Conclusion concerning the constitutional validity of s. 184.4 of the *Code*		95
		(6)	Application of s. 1 of the *Charter*		99
		(7)	What is the appropriate constitutional remedy?		103
		(8)	Constitutional Summary		109
	B.	THE IMPLEMENTATION OF S. 184.4 OF THE CRIMINAL CODE			110
		(1)	Did exigent circumstances warrant the use of s. 184.4 on February 25, 2006?		113
		(2)	Did the police comply with the provisions of s. 184.4 when implementing its use?		117
		(3)	Did the police comply with the provisions of s. 184.4 before obtaining Authorization P‑12?		120
		(4)	Were the communications intercepted pursuant to s. 184.4 prior to the issuance of Authorization P‑12 validly intercepted under the provisions of ss. 184.4(c)?		127
		(5)	When did the interception of communications under s. 184.4 of the *Code* terminate?		129
	C.	THE VALIDITY OF AUTHORIZATION P‑12			129
		(1)	Review of an authorization issued under s. 186 of the *Code*		131
		(2)	Does the affidavit in support of Authorization P‑12 fail to establish reasonable and probably grounds to believe that the alleged offences of kidnapping, extortion and conspiracy to commit murder had been or would be committed?		135
		(3)	Does the affidavit in support of Authorization P‑12 fail to make full and frank disclosure of all relevant information that ought to have been included or contain misleading information to such an extent that the issuing judge could not have issued Authorization P‑12 had he been advised of the true state of affairs?		144
		(4)	Conclusion as to validity of Authorization P‑12		148
		(5)	Was Authorization P‑12 terminated by the issuance of Authorization P‑17?		151
	D.	THE VALIDITY OF AUTHORIZATION P‑17			154
		(1)	Does the affidavit in support of Authorization P‑17 fail to make “full and frank disclosure” of all relevant information that ought to have been included or contain misleading information to such an extent that the issuing judge could not have issued Authorization P‑17 had he been advised of the true state of affairs?		157
		(2)	Subversion of the judicial authorization process		170
V.	SUMMARY OF CONCLUSIONS				173

I. INTRODUCTION

[1] This ruling concerns challenges to the constitutional validity of s. 184.4 of the Criminal Code, R.S.C. 1985, c. C‑46 [the Code], and its use in gathering evidence the Crown seeks to adduce at the trial of the accused for their alleged roles in the kidnapping, confinement, and extortion charges that are the subject of these proceedings.

[2] Section 184.4 of the Code provides that:

A peace officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where

(a) the peace officer believes on reasonable grounds that the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained under any other provision of this Part;

(b) the peace officer believes on reasonable grounds that such an interception is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and

(c) either the originator of the private communication or the person intended by the originator to receive it is the person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm.

[3] The accused challenge the constitutional validity of s. 184.4 of the Code under s. 52 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [the Constitution Act, 1982]; and ss. 7, 8 and 11(d) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [the Charter].

[4] The accused also challenge the manner of implementation of s. 184.4 of the Code by the police and the admissibility of evidence obtained pursuant thereto. They further challenge the admissibility of evidence obtained pursuant to subsequent judicial authorizations (Authorizations P‑12 and P‑17) issued pursuant to s. 186 of the Code to the extent that those authorizations relied on communications intercepted pursuant to s. 184.4 and upon the alleged failure of the police to make full and frank disclosure when obtaining those subsequent judicial authorizations.

II. ISSUES

[5] The following issues require determination:

1. Is s. 184.4 of the Code constitutionally valid legislation?

2. If not, what is the appropriate remedy under s. 52 of the Constitution Act, 1982?

3. Did the manner of implementation of s. 184.4 of the Code in this case breach the s. 8, 7 or 11(d) Charter rights of the accused?

4. What is the effect, if any, of the inclusion of evidence obtained from the interception of communications under s. 184.4 of the Code upon the validity or otherwise of subsequent interceptions made under judicially authorized Authorizations P‑12 and P‑17?

5. When did s. 184.4 of the Code cease to operate as the basis for interception of private communications in this case?

6. Were either or both of Authorizations P‑12 or P‑17 validly issued pursuant to s. 186 of the Code?

7. Did Authorization P‑12 cease to operate as the basis for interceptions upon the granting of Authorization P‑17?

8. If either Authorization P‑12 or P‑17 was not validly issued, what remedies are available to the accused?

[6] By agreement of counsel, evidentiary admissibility issues arising under s. 24 of the Charter as a consequence of my determination of those issues will be addressed by further submissions against the findings and rulings made by me in this ruling. Some of those submissions may not be capable of being fully addressed unless or until the Crown seeks to adduce wiretap evidence at trial against some or all of the accused. In that regard, I refer to my Oral Ruling on Standing dated November 2, 2007, in this proceeding concerning the standing of the various accused in this case to challenge the constitutional validity and implementation of s. 184.4 of the Code and the validity of Authorizations P‑12 and P‑17.

III. BACKGROUND

[7] It must be noted at the outset that the Crown has proceeded by way of direct indictment. Consequently the trial will be by judge and jury unless the Crown and the accused agree to a re-election before me. It must accordingly be borne in mind that the background circumstances to which I am about to refer consist of as yet unproven allegations.

[8] I must also observe that many of the officers who testified before me have received promotions since the events that are the subject of this ruling occurred in February of 2006. To avoid confusion that might arise from my reference to the contemporaneous notes or reports of those officers that form part of the narrative in this matter, I will refer to the ranks the various officers held at the time that events unfolded. In doing so, I mean no disrespect to any of those officers.

[9] To the extent possible I will set forth the salient background facts chronologically.

Wednesday, February 22, 2006

[10] The complainants, Sum (Peter) Li, his present wife, Chun Yin (Jennifer) Pan, and his associate and friend, Xiao Chun Chen, have told the police that on February 22, 2006, Jennifer Pan was abducted by three Asian males from the lobby of the apartment building in which she and Peter Li lived. They also say that shortly thereafter, Peter Li and Xiao Chen unwittingly opened the door to the Li apartment and that five to seven Vietnamese and East Indian males forced their way in.

[11] The Crown alleges that Jennifer Pan was taken to a house in Richmond and detained overnight.

Thursday, February 23, 2006

[12] The Crown alleges that after Peter Li and Xiao Chen were detained overnight in the Li apartment in the afternoon of February 23, 2006, they were moved to the house in which Jennifer Pan was already being held.

[13] At the time of these alleged abductions, the complainant, Peter Li, was subject to strict bail conditions, including house arrest and electronic monitoring for his alleged participation in a major drug importation and possession conspiracy. Following the events that gave rise to the charges against the accused in this case, he was convicted of those drug related charges and sentenced to 13 years imprisonment.

[14] In the late evening of February 23, 2006 Peter Li’s daughter, Yee (Mary) Li, called the Burnaby detachment of the Royal Canadian Mounted Police (“R.C.M.P.”) to report that her father was missing from his apartment. Because she knew he was on strict bail conditions she wanted to know whether he had been arrested by the police. After learning that he was not in police custody, she reported Peter Li missing.

[15] At 7:19 p.m., the agency responsible for supervising Peter Li’s electronic monitoring conditions reported a “possible breach” of his bail conditions to the Burnaby R.C.M.P., who then referred the agency to Peter Li’s bail supervisor.

[16] At about 8:25 p.m., Constable Jason Spielman attended at Peter Li’s apartment to interview Mary Li. Constable Spielman’s report of that interview records:

At approximately 2025 hrs 2006-02-23, Constable SPIELMAN attended to a complaint of a male who was in breach of his curfew conditions from a CSO. His daughter, Yee LI advised that she was worried that he was missing in addition to being in breach of his conditions.

On arrival Constable SPIELMAN and Constable HERMES went to the apartment to speak with Yee LI; she let members into the apartment where there was herself, her husband, and family friends. Constable SPIELMAN spoke with Yee LI. LI advised the following:

· her father is being monitored by an electronic monitoring device due to court conditions placed on him for previous offences unknown to Yee LI

· was supposed to be back at his residence by 1600 hrs, this date 2006-02-23

· when Yee LI attended to the apartment looking to speak to her father, there was no response at the door

· she became concerned as he was supposed [sic] be in his apartment as he had a curfew with very strict restrictions which he abides by

· Yee LI had a locksmith attend and open the door as she did not have keys and was unable to open the door herself

· she was let in to the apartment and after searching it found that her father was not there

· she called the police as she was worried that something had happened to her father

· advised that Sum Peter LI’s current wife, Chun Ying [sic] PAN was supposed to live at the residence as well and that she was not there either

· advised that there was a third friend who visited regularly, whose’s [sic] vehicle was parked downstairs in the lot (BCL 119 GCV Black Mercedes) and is possibly with Sum Peter LI

· advised that his vehicle was missing as well

· is really unusual for him to not be abiding by his conditions

· one laptop is missing from the apartment as well

· last contact was 2006-02-23

[17] Constable Spielman also found an interim driver’s licence for Jennifer Pan bearing a Richmond address. Subsequent investigation by the Richmond R.C.M.P. much later that evening revealed that Jennifer Pan did not reside at that Richmond address. A friend of hers who resided there told the police that the address was on the licence to allow her to receive mail there. The friend said that Jennifer Pan lived in Burnaby, near Metrotown.

[18] At 10:30 p.m., Corporal Lawrence Chung of the R.C.M.P.’s Asian Probe Team learned from another member of that team that Mary Li had reported Peter Li and Jennifer Pan missing.

[19] Corporal Chung was at that time the file co-ordinator on the R.C.M.P.’s drug trafficking investigation into Peter Li’s activities which had resulted in his house arrest and electronic monitoring conditions while he awaited trial on the charges of which he was eventually convicted.

[20] When Corporal Chung learned of Peter Li’s disappearance, he called the Burnaby R.C.M.P. to obtain details of Mary Li’s report and also advised the Burnaby R.C.M.P. detachment’s watch commander that Peter Li might have fled the country. He also advised the watch commander that Vancouver headquarters of the R.C.M.P. had issued an arrest warrant for Peter Li’s alleged breach of his bail conditions.

Friday, February 24, 2006

[21] At 11:20 a.m., Corporal Chung again called the Burnaby R.C.M.P. to obtain details of the investigation into Peter Li’s disappearance and to voice his concerns. He spoke with Sergeant B.J. Brown of the Burnaby R.C.M.P.’s General Investigation Section (“G.I.S.”) which is responsible for the investigation of major crimes. Corporal Chung learned that Constable Spielman was at that time the lead investigator on Peter Li’s missing person file.

[22] Corporal Chung suggested to Sergeant Brown that one of the possible reasons for Peter Li being missing was to avoid prosecution, or that his disappearance might be related to the fact that Peter Li had “lost” (to the police) the huge quantities of drugs concerning which he currently faced trafficking charges.

[23] Sergeant Brown advised Corporal Chung that Burnaby G.I.S. would not become involved unless there was evidence of “foul play”, but did write a report to file for Constable Spielman’s use making follow‑up suggestions as to the conduct of the missing person investigation.

[24] At 6:14 p.m., Corporal Chung spoke with Constable Spielman directly and provided background information on Peter Li. He again raised the concern that Peter Li may have fled Canada to avoid prosecution, but also advised Constable Spielman that he had received informant information suggesting that in the past few days Jennifer Pan had displayed behaviour that was inconsistent with someone about to flee the country. Corporal Chung suggested that Constable Spielman re‑attend at Peter Li’s apartment to look for evidence of Peter Li and Jennifer Pan leaving the country. He also suggested that he re-interview Mary Li and caution her that “it is a criminal offence to file a false police report”. That suggestion arose from Corporal Chung’s concern as expressed to Constable Spielman that Mary Li might be falsely reporting her father missing “to provide a cover for him”.

[25] Constable Spielman next read Sergeant Brown’s report to the investigation file and its follow‑up suggestions. He then contacted Mary Li and advised that the police were going to re-attend at Peter Li’s apartment to attempt to get a better understanding of the situation and to look for evidence. Mary Li agreed to meet him at the apartment.

[26] After that discussion, Constable Spielman reviewed the investigative file with a more senior officer, Constable Scudds, who agreed to attend the apartment with him to further the investigation. At about 8:00 p.m., they met with Mary Li who let them into the apartment. The report of their search of the apartment details that it was “clean” and “normal” and that nothing appeared “out of place or moved”. They did, however, discover and seize some ammunition from a nightstand, some cell phones and, on advice from Mary Li, noted a missing laptop computer.

[27] Also, a search of the apartment’s parking lot led the investigators to conclude that three vehicles they associated to Peter Li, Jennifer Pan and “Wan Wen Lin” were all there. Although no vehicle was found specifically indicating ownership or use by Xiao Chen, the police appear to have acted on the advice of Mary Li that the Lin vehicle was in fact driven by him so that they were able to account for the vehicles of all the persons Mary Li had reported to be missing.

[28] Mary Li agreed to return to the Burnaby R.C.M.P. with Constables Spielman and Scudds to provide a further statement.

[29] Constable Scudds and Constable Spielman both prepared reports of their investigation on February 24, 2006. Because of the significance to the events that subsequently unfolded and to concerns of the accused relating to the affidavit in support of Authorization P‑12 arising from the contents of Constable Scudds’ report, I will now record some of its contents. Among other things, Constable Scudds wrote:

CST. SPIELMAN explained to CST. SCUDDS that all the parties involved in this file (including daughter, her husband, and the three possible missing persons), are Persons Of Interest regarding numerous high-scale police investigations, including drug trafficking, loan sharking, money laundering, and fraud. CST. SPIELMAN also stated that he had received a 1624 from SGT. BJ BROWN when he had started his shift (2006-02-24) as BROWN had received a phone call from a CPL. CHUNG of the Vancouver CIS (Asian Probe Team) to provide some information about the missing parties.

…

2300 hours – CST. SCUDDS and CST. SPIELMAN attended #2003‑5899 Wilson Avenue, in Burnaby and met with Mary LI, as well as, her mother: Choi Chun PONG (1958-11-17) who allowed access with their key. CST. SPIELMAN took photographs of the residence, prior to looking in all of the rooms for any indication of Peter LI’s whereabouts. The residence looked normal and tidy. There was no sign of a forced entry, and Mary LI later indicated that she had a locksmith gain entry on February 23 (prior to notifying the RCMP), and that the lock had been changed. However, Mary LI stated that when she had come to the residence looking for Peter LI, that the door had been locked and secure.

CST. SPIELMAN looked around the residence while CST. SCUDDS spoke with LI and PONG further. Mary LI indicated that the only thing in the residence that appeared to be missing was Peter LI’s laptop, which is usually on the night table beside his bed in the bedroom. Mary LI also noted that she felt it was odd that one of the kitchen chairs was placed in the living room, in front of one of the couches. Mary LI showed CST. SCUDDS where the electronic monitoring box is located underneath one of the end tables in the living room (still there). Mary LI also stated that Peter LI had been in the process of purchasing a building somewhere on Victoria Avenue in Vancouver, and that his real estate agent Ken NG (already carded) had been concerned as Peter LI had not shown up for his appointment on February 23, 2006.

During the search of LI’s residence, several documents pertaining to LI’s Immigration status and upcoming hearing(s) were located, along with letters/bills from LI’s lawyer. Also, a partial box of 9mm ammunition was located in the bedside table in the bedroom. Immediately beside the bedside table is a large black safe (locked), which requires a key (present) and a number-keyed combination. No documents relating to flight and/or travel were located, nor were any banking or financial papers.

[30] Concerning an interview of Mary Li by Constable Spielman, Constable Scudds observed:

2203 hours – CST. SPIELMAN obtained a statement from Mary LI, to which LI stated several facts of interest, including:

· Peter LI had been involved in an incident where another vehicle had shot at his moving vehicle (possibly file #04-32548)

· speaks vaguely when asked about the associates of her dad, Peter LI and would not provide any names or numbers

· her husband Ken FENG and her dad Peter LI had been involved in criminal activity together a few years prior

Saturday, February 25, 2006

[31] At 5:15 p.m. on February 25, 2006, Mary Li telephoned Staff Sergeant Dale Quinton of the Burnaby R.C.M.P. to report a telephone call from her father. Staff Sergeant Quinton’s notes of that call record:

Writer was advised that missing subject’s daughter, Mary Li had received a phone call from her father. She states that he called her from Toronto, Ontario and is being “held” by others who are demanding $ 1 million from him. He is trying to obtain the money.

[32] Mary Li also advised Staff Sergeant Quinton that she was leaving her home and wanted to attend at the Burnaby R.C.M.P. to meet with investigators.

[33] Upon receiving that call, Staff Sergeant Quinton immediately telephoned Sergeant Brown who, as previously noted, had had discussions with Corporal Chung about Peter Li being missing two days earlier.

[34] Sergeant Brown received Staff Sergeant Quinton’s telephone call while in his car en route to a Burnaby R.C.M.P. Auxiliary graduation ceremony. When he learned that there had now been contact between Peter and Mary Li and that money had been discussed, he determined that the situation sounded serious and possibly urgent. He decided that Burnaby G.I.S. should now be involved to investigate the legitimacy of the situation as a possible kidnapping. To that end he contacted Corporal (now Sergeant) Dwayne McDonald at his home and asked him to attend at the Burnaby R.C.M.P. detachment to re-interview Mary Li and assess the situation, including her reliability. He also asked Staff Sergeant Quinton to have Corporal Chung attend the Burnaby detachment to provide information and assistance.

[35] Sergeant Brown then attended the Auxiliary function where he took the opportunity to advise Superintendent (now District Superintendent) Carl Schmietenknop, the Officer in Charge of the Burnaby detachment, of the recent developments. At the time, Superintendent Schmietenknop happened to be talking to District Superintendent (now Assistant Commissioner German) Peter German, who therefore also heard the conversation. Sergeant Brown told Superintendent Schmietenknop and District Superintendent German that they were initially concerned with two and possibly three missing persons and that the investigation was being handled by a general duty officer. He reported that there had now been contact between Peter Li and his daughter indicating that money was needed for his release. He also advised the two senior officers that Peter Li was a “major player” in the drug world and that Corporal Chung was investigating him in that role. Sergeant Brown testified that it was possible he raised Corporal Chung’s concern about Peter Li’s possible flight to avoid prosecution and also possible that he advised them that he had requested Corporal McDonald to re-interview Mary Li to get his assessment of the situation.

[36] The evidence establishes that Superintendent Schmietenknop did not give any directions to Sergeant Brown at the time. He only asked whether Sergeant Brown had “enough guys” and was told that there were sufficient resources available at the present time. There may also have been some discussion touching on the possible use of the s. 184.4 of the Code wiretap provisions and possibly also some discussion about Superintendent Schmietenknop’s ability to give approval for such a wiretap. There was, however, no decision made at that time concerning the implementation of such a wiretap.

[37] Sergeant Brown left the function at about 7:15 p.m. and arrived at the Burnaby detachment shortly thereafter. He attended to paperwork while awaiting Corporal McDonald’s report and assessment of his interview of Mary Li. He testified that he was relying on Corporal McDonald to determine whether the complaint was legitimate and that he trusted in Corporal McDonald’s abilities and judgement because of their many years of working together.

[38] At 8:25 p.m., Sergeant Brown chaired the first incident briefing of the G.I.S. team handling an investigation that was to be named “Project E‑Pupil”. In attendance were: Sergeant Brown, Corporal McDonald (designated as the primary investigator), Constable Marco Roy (designated as the file co-ordinator), and Corporal Chung. The meeting was concerned primarily with Corporal McDonald’s report of his interview to that point with Mary Li. Notes that Corporal McDonald later prepared gave a full synopsis of that interview and the transcript of the interview was also tendered as evidence on this voir dire.

[39] Sergeant Brown’s notes of that meeting are, however, of greatest significance to the issues to be decided concerning his decision to invoke the provisions of s. 184.4 of the Code in the Project E‑Pupil investigation. Specifically, he recorded that:

1. Peter Li was currently facing charges for trying to bring in chemical precursors for the synthetic drug ecstasy;

2. Corporal Chung suggested that Peter Li might be preparing to flee to avoid the charges;

3. Peter Li’s new wife (Jennifer Pan) was also missing from their apartment and Mary Li believed that a friend, Xiao Chen, was also missing;

4. Concerns were raised as to “whose dope” may have been lost and whether drug associates were responsible for the missing persons;

5. Mary Li had told Corporal McDonald that:

(a) her father had been missing for three days;

(b) her father had called her that afternoon and said, “It’s me. I’m O.K. but I need money. If friends don’t give money, my ghost will come back and collect. I may not be able to call later but ‘QQ’ will give instructions”;

(c) three calls had been received from Peter Li just around 4:00 p.m. from a telephone number identified as 647‑265‑7777, a Toronto exchange; and

(d) a cousin in Toronto, Wei Dong (Michael) Li, had also received calls.

[40] Sergeant Brown also testified that Corporal McDonald told him that he believed Mary Li and said words to the effect, “it’s legit…it’s for real”.

[41] In addition to Sergeant Brown’s personal notes, a report of that first incident briefing prepared by Constable Roy includes the following statements:

The victim is a “facilitator” in the import and export of illegal drugs. He is presently under charge for the import of MDMA precursors. He is possibly planning to flee the country. He is missing with his current wife (PAN) and his friend (CHEN). The victims daughter (Yee LI) and his ex-wife (PONG) both have previous involvement in the marijuana trade.

CHEN’s brother CHENG apparently called Yee LI from China, having heard about the incident.

Possible motives	-	Money
	-	A bad business deal by the victim
	-	The owner of the drugs seized (resulting in the victim’s arrest) feels the victim still owes money for those drugs

[42] Although Constable Roy’s notes indicate that the first briefing ended at 9:00 p.m. on February 26, 2006, the evidence of Sergeant Brown and Corporal McDonald as well as that of Staff Sergeant Trent Rolfe (a specialist with the R.C.M.P. in obtaining wiretap authorizations) establishes that before the briefing ended Sergeant Brown and Corporal McDonald left to look into the possible use of a s. 184.4 wiretap authorization.

[43] Sergeant Brown’s notes indicate that at 8:50 p.m. on February 26, 2006, he “spoke with Trent Rolfe” concerning a s. 184.4 authorization. The evidence also establishes that the call to Staff Sergeant Rolfe was made from Sergeant Brown’s office and that Corporal McDonald was in the same office when it was made and that it may have been a “speakerphone” call.

[44] There was some divergence in the testimony of Sergeant Brown and Constable McDonald concerning their actions in considering the potential use of s. 184.4 of the Code in the investigation before contacting Staff Sergeant Rolfe but in my view nothing turns on any differences in their recall of the events.

[45] Sergeant Brown testified that before making the call to Staff Sergeant Rolfe, he was aware that there were provisions in the Code that would allow “emergency wiretaps” without the obtaining of judicial authorization, but he was not familiar with them and had never used them. He said that after learning from Corporal McDonald that Mary Li’s complaint was “legit”, he and Corporal McDonald then leafed through the provisions of Part VI of the Code until they came upon s. 184.4 which seemed to be “what we were looking for”.

[46] Corporal McDonald did not specifically recall leafing through the Code with Sergeant Brown. He testified that when he was called out from home to re-interview Mary Li, he had reviewed “in his mind” possible investigative measures while en route to the interview and had determined that an emergency wiretap without judicial authorization would likely be necessary because of urgency and the length of time it would take to prepare and obtain a judicial authorization at night on a weekend.

[47] Sergeant Brown impressed me as an entirely straightforward police officer and witness and I accept his evidence without hesitation. His notes and his testimony were largely consistent. Further, Sergeant Brown accepted full responsibility for making the decision to request the implementation of s. 184.4 of the Code and spoke frankly about the shortcomings in his knowledge of the intricacies or even existence of other possible provisions of Part VI of the Code that might have been of assistance to the investigation other than s. 184.4. He relied on Corporal McDonald’s assessment of the credibility of Mary Li’s complaint, his own knowledge of drug‑related kidnappings, and the potential for violence to victims. He also relied on the technical expertise of Staff Sergeant Rolfe in the implementation of s. 184.4 to make the decision to “go with” s. 184.4.

[48] I find that the decision to invoke s. 184.4 of the Code was made by Sergeant Brown after consultation with Corporal McDonald and Staff Sergeant Rolfe. When advised of the circumstances known to the police, Staff Sergeant Rolfe advised Sergeant Brown to get “line officer approval to implement s. 184.4 and in the face of anything contrary should assume [that] kidnapping [was] legitimate until known otherwise”.

[49] Staff Sergeant Rolfe also advised Sergeant Brown that he should immediately commence the preparation of a s. 186 judicial authorization to replace the s. 184.4 non‑judicial authorization. He further advised that he would make Special “I” assistance available to the affiant for that purpose.

[50] In doing so, Staff Sergeant Rolfe did not follow the R.C.M.P.’s E‑Division (British Columbia) written policy of waiting for 24 hours before beginning work on a s. 186 authorization. He testified that he did not do so because in his opinion too much time could be lost in not proceeding immediately with the application for a s. 186 authorization that would be likely be needed in any event since a s. 188 authorization would only be valid for a maximum of 36 hours.

[51] Staff Sergeant Rolfe also telephoned Sergeant Bob LaPorte of Special “I” to advise him of the upcoming request for interception of communications pursuant to s. 184.4 of the Code so that preliminary steps necessary to facilitate the interceptions could be undertaken.

[52] At 9:15 p.m., after the conclusion of his discussions with Staff Sergeant Rolfe, Sergeant Brown telephoned Superintendent Schmietenknop to obtain approval for the implementation of a s. 184.4 wiretap. Neither officer had notes of this conversation, but both say it was brief, building on the earlier discussions they had had about Peter Li being missing and the calls to his daughter for $1 million which the officers each took to be a ransom demand.

[53] Superintendent Schmietenknop gave immediate approval by telephone and also provided instructions to Sergeant Brown to have Corporal Steve Cocks of the Burnaby detachment prepare the report of his determination to invoke the section that was required by R.C.M.P. policy for signature by Superintendent Schmietenknop.

[54] Sergeant Brown’s notes of his determination to implement s. 184.4 are important to the consideration of the issues on this application. In his formal report to file dated February 26, 2006, he wrote:

Sgt. B.J. BROWN, having been briefed by Cpls. CHUNG & McDONALD, and Cst. ROY, with respect to this investigation and those involved, agreed that the threat seemed legitimate, hence it was decided that an Emergency Interception of Private Communications, issued under Section 184.4 C.C.C. was warranted under these circumstances.

At 21:15 hours, Sgt. BROWN contacted Supt. SCHMEINTENKNOP by phone and obtained officer approval for an Emergency Authorization.

[My emphasis.]

[55] I have emphasised the phrase “the threat seemed legitimate” because of because of the omission of the word “seemed” in the affidavit in support of Authorization P‑12 later sworn by Constable Dale Carr, which I will discuss in some detail later in this ruling.

[56] About his use of the word “seemed”, Sergeant Brown testified that he accepted Corporal McDonald’s assessment of Mary Li’s credibility on the issue of whether there was a legitimate kidnapping, but that he had to be alive to other possibilities including those of flight to avoid prosecution or Mary Li providing a cover for Peter Li fleeing the country. He therefore could not be certain of the legitimacy of the threat, but could not discount it when lives were potentially at risk. Prudence and good practice demanded that he assume legitimacy until known otherwise. It also demanded that a thorough investigation to either confirm or refute whether there had been a kidnapping would have to continue.

[57] At 9:20 p.m., after receiving the necessary approval from Superintendent Schmietenknop, Sergeant Brown advised Sergeant LaPorte of that fact and requested that intercepts and monitoring of those intercepts be put in place.

[58] The initial telephone numbers identified by Sergeant Brown for interception pursuant to s. 184.4 were those identified as being associated with:

1. the cellular phone on which Mary Li had received the three calls earlier that day from Peter Li;

2. the cellular phone on which Michael Li had received similar calls in Toronto from Peter Li earlier that day; and

3. the cellular phone from which Peter Li had made the calls to Mary and Michael Li.

[59] Although “QQ” had been identified by Peter Li as someone who would call Mary Li with instructions concerning money, the police had no information about any telephone number related to “QQ” at the time the initial authorization was granted by Superintendent Schmietenknop.

[60] At 9:35 p.m., Staff Sergeant Rolfe advised Sergeant Brown that Sergeant Alfredo Bangloy of Special “I” would be attending at the Burnaby detachment to assist the affiant in the preparation of an affidavit in support of a s. 186 judicial authorization.

[61] Action by Special “I” in beginning the interception of the identified lines was swift. By 10:40 p.m. Sergeant LaPorte had determined that the “7777” number identified as being used by Peter Li in making calls to Michael and Mary Li was not assigned in North America and accordingly could not be intercepted. The police had, however, ”gone up” on the Michael Li and Mary Li lines.

[62] Significantly, of course, the police had not advised either Mary Li or Michael Li that their calls were being intercepted. The investigators did not request either target to consent to the interception of their telephone calls notwithstanding their co-operation with the police and the reliance of the police on Mary and Michael Li’s credibility, both in invoking s. 184.4 and in later seeking judicial authorizations under s. 186 of the Code.

[63] During another briefing held in the evening of February 25, 2006, Sergeant Brown advised of the commencement of the interception of telephone calls pursuant to s. 184.4. The briefing was attended by Constable Carr, who became the affiant on Authorizations P‑12 and P‑17, as well as by Sergeant Bangloy of Special “I”, who was sent by Staff Sergeant Rolfe to assist Constable Carr in his preparation of the affidavit in support of Authorization P‑12. That briefing ended at 11:45 p.m.

Sunday, February 26, 2006

[64] The evidence is not clear as to when Constable Carr actually began to prepare his affidavit in support of Authorization P‑12. He testified that he began some preliminary work immediately after the last briefing on Saturday, and that he received either a “template” or an affidavit that had been used in another investigation from Sergeant Bangloy which he then used as a guide for his own affidavit. There was also one further late night unit briefing of the investigative team that convened at 2:40 a.m. on Sunday, February 26, 2006, and lasted until 3:10 a.m.

[65] Both Constable Carr and Sergeant Bangloy attended that briefing, the notes of which record that, among other things, the investigators discussed the following:

Investigators had Yee [Mary] LI phone the numbers identified as belonging to the victims and the possible suspect(s), with negative results. LI told investigators that she thought “Q-Q” might call in the morning because she was given 24 hours to get the money.

Attendance at the victim’s building and suite revealed that there is no security video. There were 4 bottles of water and phone books outside LI’s suite. The suite itself looks like someone may have searched it. There were many financial documents. The kitchen cupboards were open. There were 4 glasses in the sink and one on the counter. There were numerous cigarette butts (some wet, some dry). The [redacted] on the couch and there were snacks out as well. The last number that was called was [redacted]. The entry alarm for the suite was off (i.e.: not armed. Disarmed or neve [sic] armed?). The passports were not seen, nor were they looked for.

…

Yee LI and PONG were let go, after being instructed that if Peter calls, to milk him for information. If the suspect(s) call, she is to delay them. Either way, she is to call Cpl. MCDONALD and advise him.

Yee LI, PONG and FENG do not want police to speak with Peter LI’s associates as those may indirectly make others (and possibly the suspects) aware that they police are involved.

Cst. HUNG interviewed Wei Dong LI [redacted], aka Michael LI, in Ontario. He received 3 calls this date, at 1830 hrs, 1845 hrs, and 1947 hrs (Toronto time). The first call was from Peter, who asked him to find 1 or 2 million dollars or he (Peter) would be in trouble. Michael was unable to obtain the number Peter called from. The second call was also from Peter, who told him to call back, then hung up. The third call was again from Peter, who told him to prepare 1 million dollars and a “D” (Canadian name, could not remember) would call him tomorrow. This Peter called from a 647 number. Michael confirmed that his phone number was [redacted]. Michael went on to think that this is happening to Peter because he is wealthy. Michael had also been contacted by Mary and Linda. The last time they saw each other, Peter had asked Michael for $300,000 to $400,000 for some mushroom and ginseng business money.

“Ah Cho” was identified as Yuan Chu CHENG [redacted]. This was confirmed by showing a photo of him to LI, PONG, and FENG.

The Part VI is under works, Section 184(4) CC, using the names of the victims “QQ,” and “D” at this time.

[66] The evidence also establishes that between the time of the last briefing at approximately midnight on February 25, 2006, and the first one at 2:40 a.m. on February 26, 2006, Corporal Chung continued the interview of Mary Li, her husband, Guo Fu (Ken) Feng and her mother, Choi Chun (Linda) Pong that Corporal McDonald had commenced before the determination was made to intercept telephone calls pursuant to s. 184.4 of the Code. During his interview Corporal Chung also called Michael Li in Toronto, which then led to the interview of Michael Li in that city by Constable Hung that was mentioned in the briefing notes recorded in the foregoing quote.

[67] During this hearing, Corporal Chung testified that notwithstanding his distrust of Mary Li and her criminal antecedents and his concerns about her possibly providing cover for Peter Li leaving the country to avoid prosecution, he had concluded by the end of his interview that she was being truthful with the police about her belief that Peter Li had been kidnapped and was being held for ransom. He acknowledged that she was not honest about her own criminal activities or those of her husband, and was less than forthright about her knowledge of the extent of Peter Li’s criminal activities and his criminal associates. He also testified that her lack of candour on these subjects did not lead him to conclude that Peter Li was not at serious risk of being killed by his captors.

[68] I find that Corporal Chung was an honest witness who answered questions without evasion. He frankly admitted his concerns with the veracity of Mary Li and other family members going into the investigation and his doubts about their honesty in the interview to the extent that it impacted on their own past and present criminal activities. He also, however, looked to the circumstances of Peter Li’s disappearance and other circumstantial evidence tending to support the veracity of Mary Li’s beliefs. A significant aspect of that support came from the same criminal underpinnings to the situation that gave had given rise to his doubts about the veracity of the complaints in first instance.

[69] Corporal Chung and others, including Corporal McDonald, Sergeant Brown and District Superintendent German, all testified that persons in a similar position to Mary Li who are themselves involved in crime usually only come to the police for assistance with great reluctance because of fear that their activities will be subject to unwelcome scrutiny.

[70] I accept that testimony and I find that it is reasonable to view the statements made by such persons with scepticism, but also with the understanding that they will not generally put themselves at risk of investigation if their concerns about the matters they thought required police involvement are not honestly held.

[71] After Corporal Chung concluded his interview of Mary Li, Ken Feng and Linda Pong, they were released to return to their homes in the early morning of February 26, 2006.

[72] Also, at approximately 4:00 a.m. Constable Carr went off shift and did not return to the detachment to work on the affidavit in support of Authorization P‑12 until approximately six hours later. In the meantime, as well as after his return to the detachment, the police continued to intercept communications pursuant to the s. 184.4 authorization that Superintendent Schmietenknop had approved the day before.

[73] Constable Carr testified that he believed he had 24 hours under the s. 184.4 police wiretap before a s. 186 judicial authorization was required. That belief was shared by Staff Sergeant Rolfe, as well as by Sergeant LaPorte of Special “I”, based on their understanding of s. 184.4 in the context of Part VI of the Code as well as R.C.M.P. E‑Division (British Columbia) written policy.

[74] After returning to the Burnaby detachment, Constable Carr was able to complete the affidavit in support of Authorization P‑12 for review by a designated Crown agent. Sergeant Brown’s notes record that he had some trouble in finding an agent, but that eventually Mr. Craig Dykes agreed to bring the application for the s. 186 authorization before a justice of this Court if the affiant met him at his office at 4:00 p.m.

[75] Mr. Dykes met with Constable Carr and Sergeant Bangloy at 4:20 p.m. to review the affidavit in support of Authorization P‑12 and to prepare Authorization P‑12. Prior to that happening, however, several developments occurred on February 26, 2006, that impacted upon the investigation, Constable Carr’s supporting affidavit, and the s. 186 authorization he sought. In particular:

1. Telephone calls from Peter Li to Mary Li and Ken Feng and also to Michael Li were intercepted pursuant to s. 184.4 of the Code between 1:33 p.m. and 1:51 p.m. (Vancouver time), during which Peter Li enquired about hundreds of thousands of dollars being raised that had to be paid without question.

2. At 3:34 p.m. (Vancouver time), the police intercepted a telephone call from a male identified as “BB” (a Caucasian) to Michael Li in Toronto saying that he was “supposed to pick up something from you guys” and asking Michael Li where and when the delivery should take place. A meeting was arranged to take place approximately 40 minutes later.

3. At 3:55 p.m., Sergeant Brown telephoned Constable Carr, who was then en route to Mr. Dykes’ office, to tell him about the “BB” call to Michael Li. Sergeant Brown also decided to “go up” on the number “BB” had used to call Michael Li pursuant to s. 184.4 of the Code and at 4:00 p.m. called Sergeant LaPorte to implement the intercept pursuant to the existing s. 184.4 authorization approved by Superintendent Schmietenknop. Sergeant Brown also later phoned Constable Carr to advise that the “BB” line was being intercepted. Constable Carr added that information to his affidavit and identified the “BB” line as a target line in his affidavit and in Authorization P‑12.

4. At about the same time as he authorized the interception of calls on the “BB” line, Sergeant Brown or another officer on his behalf advised Constable Hung in Toronto of these recent developments with instructions to engage in surveillance of Michael Li and an anticipated money drop.

5. At 5:05 p.m. (Vancouver time), the police intercepted a call from “BB” to Michael Li during which Michael Li said he would be “15 minutes”.

6. At 5:30 p.m., the police intercepted a call from Peter Li to Michael Li during which Peter Li asked, ”How come you have not brought the money to the person yet?” Michael Li responded that he was stuck in traffic and Peter Li said, “Don’t play tricks. Don’t make things complicated.”

7. Further intercepts between the “BB” line and Michael Li followed, but there was no meeting until about 6:45 p.m., after which Michael Li called Mary Li to advise that he had refused to get into the car with the person he met but that he had given over the money. Police surveillance confirmed the meeting, but could not confirm Michael Li’s advice that the red suitcase delivered by him contained approximately $500,000. The police subsequently lost contact with the car to which Michael Li delivered the suitcase after a high speed chase that lasted more than two hours.

8. While events were transpiring in Toronto between “BB” and Michael Li, the police intercepted a telephone call at 6:25 p.m. to Mary Li in Vancouver from an unidentified male who identified himself as “Q” (who the police now claim is the accused Nhan Trong Ly). The following conversation was recorded:

	ML:	Hello.
	Q:	Hi. This is Q.
	ML:	Q, oh. Um, yeah.
	Q:	Uh, can you come meet me right now at, uh, Victoria and 54^th?
	ML:	Victoria, 54^th?
	Q:	Yeah.
	ML:	Um, how long?
	Q:	Uh, I’m here right now.
	ML:	You’re here right now. Um, you have to give me, because, um, I’m still waiting for a little bit more. Um, can you give me one hour?
	Q:	One hour?
	ML:	One, to get every-
	Q:	Uh.
	ML:	-uh, to get all of it.
	Q:	Okay.
	ML:	‘Cause I’m just waiting for another friend to get me, like, uh-
	Q:	Okay.
	ML:	-…
	Q:	Okay. I’ll call you back in an hour.
	ML:	But is, um, is, um, is he, is my dad gonna be, uh, whatever after or, how’s, how’s it gonna-
	Q:	Uh, we’ll talk, uh, I’ll talk to you afterwards. …-
	ML:	…
	Q:	-he, he just, uh, over at a friend’s house, that’s all he’s (chuckles), doing.
	ML:	Oh, but then, I’m gonna see him after, right?
	Q:	Yeah, or that, that’s up to, I, I don’t know how that will all, all work. I, I’m just to talk to you, that’s it. Tsk.
	ML:	Okay. Um, so, can you give me one hour, then call me back?
	Q:	Okay.
	ML:	Or do I call you back? How-
	Q:	I’ll call you back in one hour
	ML:	In one hour? Okay.
	Q:	Yeah.
	ML:	For sure.
	Q:	Okay.
	ML:	Okay.
	Q:	Okay. Bye.
	ML:	Okay, bye.

9. At 6:33 p.m. (Vancouver time), Sergeant Brown requested Sergeant LaPorte to also “go up” on the “Q” line the police had now identified. That was done without any pre-authorization by Superintendent Schmietenknop and approximately 10 minutes after Constable Carr had advised Corporal McDonald that he and Mr. Dykes were going before Justice Pitfield, the authorizing judge for Authorization P‑12.

10. The “Q” line was, in fact, “tapped” by 7:27 p.m., however, “Q” did not call Mary Li back at all that day. When he did call back the next day, Authorization P‑12 had been issued.

11. At 7:04 p.m. (Vancouver time), the police intercepted a call between Peter Li and Mary Li during which he told her that he knew that someone had followed the vehicle in Toronto after “Michael had paid” and not to play tricks because “it will harm my life”.

12. At 7:20 p.m. on February 26, 2006, Authorization P‑12 was issued by Justice Pitfield.

[76] With the exception of the advice from Sergeant Brown to Constable Carr at 3:55 p.m. advising him of the first “BB” call to Michael Li and the intent to “go up” on the “BB” line, Constable Carr was not made aware of any of the events that occurred between the time that he left the detachment to meet with Mr. Dykes and the time that Justice Pitfield issued Authorization P‑12.

[77] The police intercepted approximately 50 communications under s. 184.4 of the Code before obtaining judicial approval for interceptions under Authorization P‑12. The Crown has given notice of its intent to adduce 21 of those interceptions at trial. They include interceptions: between Peter Li and/or Mary Li, Michael Li and Ken Feng; Mary Li and Michael Li; “unknown persons” and “BB”; Michael Li and “BB”; “unknown persons” and Michael Li; and, the call between “Q” and Mary Li at 6:25 p.m. on February 26, 2006.

[78] The other communications which were intercepted but which the Crown does not intend to adduce included calls between: Mary Li and Ken Feng; Mary Li and Michael Li; and numerous calls between “unknown persons”.

[79] The intercepted communications also included calls between Mary Li and Michelle Ko, who the police at the time identified as a possible suspect due to her having advised Mary Li of a visit to a “psychic” who had allegedly given her information about the alleged kidnapping. Much later in the investigation the police determined that Michelle Ko should not be considered a suspect.

[80] All of those intercepted calls were recorded under s. 184.4 of the Code notwithstanding that many of the speakers were neither perpetrators nor allegedly victims of the crimes under investigation by the police when s. 184.4 of the Code was implemented. That occurred because in their interception of calls under s. 184.4 the police used “automatic” recording rather than live monitoring. I will address those concerns later in these reasons.

Events after February 26, 2006

[81] I do not intend to record in detail all of the events that occurred during the police investigation into the alleged kidnapping of Peter Li, Jennifer Pan and Xiao Chen after the granting of Authorization P‑12 and before the granting of Authorization P‑17. I will, however, outline some of the salient facts that relate to issues concerning the validity of Authorization P‑17.

[82] By its terms, Authorization P‑12 allowed the interception of communications from February 26, 2006 until March 30, 2006, and the Crown has provided notice of its intention to adduce as evidence at trial the contents of 13 telephone calls intercepted pursuant to Authorization P‑12. Of those 13 calls, three involve the interception of communications of the accused Ly. The other 11 calls of which the Crown has given notice were between Peter Li and either Mary Li, Ken Feng, or Michael Li; or between Mary Li and Michael Li.

[83] Although by its terms Authorization P‑12 did not expire until March 30, 2006, on March 10, 2006 the police applied for a new authorization under s. 186 of the Code to increase the number of identified telephone lines subject to interception and the number of targets whose communications could be captured. On March 10, 2006, Authorization P‑17 was granted by Associate Chief Justice Dohm.

[84] A review of the material filed on this application as well as the testimony of Constable Carr establishes that after Authorization P‑12 was granted at 7:20 p.m. on February 26, 2006, the R.C.M.P continued to treat Mary and Michael Li’s complaints very seriously and expended enormous financial and manpower resources in the ongoing kidnapping investigation. Investigative techniques included the monitoring of communications under Authorization P‑12, surveillance and other investigative techniques to attempt to locate the alleged victims.

[85] A major development occurred at 4:53 p.m. on Monday, February 27, 2006, when the police intercepted the two telephone calls from “Q” to Mary Li pursuant to Authorization P‑12 (of which the Crown has given notice) arranging a meeting for a money drop at East 54th Avenue and Victoria Drive in Vancouver. Mary Li told “Q” that her husband, Ken Feng, would attend rather than her.

[86] The subsequent actions of Ken Feng were carried out under police surveillance which establishes that after meeting a “Pacifica” at a 7‑Eleven store at East 54th and Victoria, Ken Feng followed the Pacifica a short distance to Fraserview Drive where a male got out of the vehicle and to whom Ken Feng handed a gym bag with the approximate dimensions of 2.5 by 1 feet. Police then lost surveillance of the Pacifica, but eventually traced it to a residence they now say was that of the accused Ly at 6730 Laurel Street. The Crown has submitted on a previous application in this case that Ken Feng will testify that the gym bag turned over to the driver of the Pacifica contained $200,000.

[87] Thereafter, the police engaged in protracted and detailed surveillance of the 6730 Laurel Street residence, the movements of the accused Ly and his interactions with others, as well as the movements of the Pacifica.

[88] Notwithstanding their resolve to find Peter Li, Jennifer Pan and Xiao Chen and the vast expenditure of efforts and resources to that end, it is also, however, obvious that as early as February 28, 2006, the investigators began to have serious doubts about the veracity of Mary Li and Ken Feng, as well as whether Peter Li was the subject of a kidnapping, or was orchestrating a ruse to obtain money for his own benefit.

[89] For example, a search of Peter Li and Jennifer Pan’s residence sometime shortly before February 28, 2006, located mortgage documents and financial information for Peter Li and a company controlled by him. Those documents were turned over to Corporal Kurvers of the R.C.M.P.’s Burnaby Economic Crime Unit.

[90] In an R.C.M.P. Incident Briefing Report dated Tuesday, February 28, 2006 at 2:20 p.m., the following was recorded:

A meeting was held this morning between Supt. SCHMIETENKNOP, S/Sgt. DEANS, Sgt. BROWN, Sgt. SEWARD, Cpl. CHUNG, and Cpl. McDONALD in regards to resources needed for this investigation, and whether or not Peter LI’s situation was legitimate or possibly a scam orchestrated by him to liquidate his assets. It was decided that the Special “I” monitoring room duties and the Special “O” Rider duties would be pulled from other Burnaby units. The mater [sic] will still be treated as a bona fide kidnapping, with the knowledge that this matter could be a scam with or without the knowledge of Peter LI’s family.

Investigators will attempt to bring Mary LI, Ken FENG and Yuan CHENG to the detachment to negotiate with Peter LI and/or his “assailants” as per script, since Mary has not been following the strategies established with the negotiators. Apparently, FENG is angry about the fact the situation has not yet been resolved and might be more cooperative. If push comes to show, Cpl. CHUNG may speak with Peter LI if he calls, tell him that the police is involved, and see what LI has to say. The family has stated that they will probably not be able to round up another $1.5 million.

[My emphasis.]

[91] That memorandum foreshadowed a continued lack of co-operation by Mary Li in the investigation and the concern of the investigators. Although the investigation continued unabated as a kidnapping and extortion investigation, a review of the briefing notes of the many meetings that were held during the days that followed establish to my satisfaction that the R.C.M.P began to have concerns about the legitimacy of the kidnapping complaint. In the circumstances, however, as expressed by the investigators, they had no option but to treat the complaint as legitimate.

[92] On Wednesday, March 1, 2006 at 3:00 p.m., Peter Li called Mary Li and asked her how much money she had so far. He said that he needed $3 million, that she had to do whatever she could do to get the money, and that if she did not get it he would be “dead”. He also said that he did not have any money himself, notwithstanding that Corporal Kurvers’ investigations into Peter Li’s financial circumstances had determined that as of March 1, 2006, there was $587,820 in a company account over which Peter Li had sole signing authority.

[93] An R.C.M.P. Incident Briefing Report for Friday, March 3, 2006, at 8:35 a.m. recorded that:

There have been no phone calls from Peter LI since the last briefing. Last night, the negotiator (Sgt. SEWARD) and Cpl. CHUNG spent the night at Mary and FENG’s residence. Mary provided the phone number for the locksmith who gave access to Peter LI’s residence in the first instance. FENG went to meet a friend, “Ah Gho.” He was lost to surveillance. FENG and his crew think that Peter could be faking his kidnapping and could already be in China. The family were offered $140,000 by Yuan CHENG, as well as contacts for loan sharks.

The driver of the Pacifica (218 CPE), Nhan Trong LY, is consistent with the description of “Q” from the Vancouver money drop. The photo of LY has not yet been shown to FENG, as there are new concerns about possible involvement in Peter’s disappearance, in regards to Mary LI and FENG. Cpl. CHUNG received information from a known reliable source that Mary and FENG are the people that stand to gain the most if anything happens to Peter. Mary and Peter did not have a good relationship in the past. There was a lot of animosity between them because of Peter’s new wife (PAN) and Mary’s mother (PONG).

[My emphasis.]

That report ends with the observation that:

The strategy for the next few days: sit tight, wait for the call and use the negotiating strategies prepared with Mary and FENG. Consideration can be given to mentioning the money located in Peter’s account and see his reaction. This comment may also be overheard by the suspects, possibly sparking more phone activity. It is still unknown if this is a bogus kidnapping, but it will be treated as one. There are still to many references to “them” and “they”. The next phone call will be very important. Mary and FENG will be brought away from their residence, with the possibility of re‑interviewing them and polygraph FENG (Mary is pregnant). VPD and NFERT will be stood down. The Burnaby Strike Force unit will shadow Special “O” and can be used for any urgent takedowns, as many of its members are ERT and ASRP members. Special “O” will remain at Laurel Street and will split off is [sic] CHIN or the Cherokee (817 FAD) shows up. An attempt to install a tracking device on the Cherokee will also be made.

[My emphasis.]

[94] A later Incident Briefing Report from March 3, 2006, includes the following statements:

A cell phone number has been obtained for FENG: [redacted]. As it appears that the family is not being completely forthcoming about the investigation (i.e.: pay off in China, etc.), FENG’s phone number will be included in the “Resort To” clause of the Part VI.

…

The Integrated Proceeds of Crime (IPOC) unit started working on Peter LI over a year ago. They will compare their file with the enquiries made by Burnaby Economic Crimes. There is a concern that he may access his account, however his bank is monitoring his account and will advise Burnaby Economic Crimes if someone tries to access the funds. A discussion ensues on whether or not access to the funds would not constitute the use of funds in the commission of an offence, even if LI wanted to access them to pay his ransom. In that case, a General Warrant could be obtained to “control” those funds at the bank.

[95] On Saturday, March 4, 2006, the R.C.M.P. accessed and searched Peter Li’s safe and provided the contents to Corporal Kurvers for further assessment. The documents included cheques payable to companies controlled by Peter Li totalling $400,000.

[96] In an Incident Briefing Report dated Sunday, March 5, 2006 at 9:40 a.m., the R.C.M.P. recorded that:

Third party information was received from Mary LI. It appears that Jennifer Pan’s family, in China, never actually paid the $600,000 for Peter LI’s ransom. They had it ready but the calls from Peter stopped at the same time as they stopped here in Vancouver. A review of the February 27th call from Peter revealed that Jennifer’s family had “raised” the $600,000.

[97] In a Monday, March 6, 2006, Incident Briefing Report at 9:00 a.m., the R.C.M.P. recorded:

The number of call intercepts have dropped off considerably since Peter LI’s last call, when he accused Mary LI of getting the police involved. There are many references to calls being made on other lines. On March 05, CHENG spoke with Mary and told her that a month ago, Peter had sought out “these people” to speak with them. CHENG told Mary that he would contact “them” today, as there is money available but they are not collecting. CHENG spoke with “Ah Ago” and the money is apparently ready.

[My emphasis.]

[98] In addition to the reference to Yuan Cheng in the 9:00 a.m. Incident Briefing Report of March 6, 2006, the author stated:

Jennifer Pan’s sister in China was contacted: Chun Feng PAN ([redacted]). She confirmed that she received a phone call from LI asking for money, that the money had been raised, but no one had collected yet. Chun PAN had called Mary LI about the $600,000. This is not consistent with what Mary told investigators. Chun PAN last spoke with her sister on February 22nd. She was advised by Mary, on February 25th, that Jennifer was missing. On March 01, she received another call from Jennifer, from a private number. Jennifer knew that Chun PAN was looking for her. She told Chun PAN that she was with Peter, they were staying with some friends.

Contact will be re-initiated with Michael LI in Toronto, as this may spark some phone calls. Cpl. LOUIE, who has extensive file knowledge and has previous dealings with Peter LI, will be sent to Toronto to assist. A Toronto based negotiator will be identified in the event that one is needed there.

Further to the above, the idea that police feel that this whole incident is being orchestrated by Peter LI will be suggested to all parties in Toronto, Vancouver and China, to see if this also sparks some phone calls.

Consideration was given to attempting to capture the phones of Mary LI and FENG, as indications are that they may be in contact with Peter LI or the kidnappers by way of other lines. Investigators are considering bringing Mary in again to be interview/interrogated about her possible withholding of information.

[My emphasis.]

[99] Material filed on this application also indicates that on either March 6th or 7th of 2006, Sergeant Seward of the R.C.M.P. investigation team prepared an analysis of dealings with Mary Li to date focusing on the “inconsistencies in her accounts of phone calls and file developments”. In the text of that report Sergeant Seward observed, amongst other things, that:

- On the date (2006-02-23) that Mary LI reports her father missing, she is not concerned. She is more interested in getting him placed on CPIC (most likely for his conditions).

- Two days later on Saturday, 25, 2006 Mary LI attended the office concerned that her father had been kidnapped. Both Mary and Pong were extremely calm and relaxed (laying on couch) and seemed willing to follow the direction of the negotiators. Totally lied about the families [sic] drug activities and failed to mention she was kidnapped in the past. Wrote down questions negotiators wanted her to ask. Attempts made to phone the number met with negative results. Mary and her mother PONG then departed with clear understanding of the instructions and what to do say [sic] if contact was made. Mary LI understood she was to phone right after.

- The following day 2006-02-26 Mary LI advised she did not want police involvement or dealings with any Caucasian members. This was a total reversal in attitude from the previous day.

…

-On Monday, Feb. 27, she was called several times during the day to see if calls had been received. Negotiator then phoned Mary at 1630Hrs. And stressed that nothing could move forward until another phone call was received. As with all calls the questions were reviewed with Mary regarding this. She advised that she would call back if anything heard. Fifteen minutes later monitor room advises there will be a meet with Kenny. I call Mary. Kenny had already left. She did not follow instructions at all. When she asked why her reply was “I’m shy.” (Review of call between Mary and “Q” –sounds like familiarity.) Intelligence and past criminal activity show Mary to be anything but shy. Ruthless and extremely aggressive are more her traits. (Mary does not mention the fact that she was kidnapped in Vancouver last yr. When VPD found her and interviewed she maintained her cover story of having a large amount of money to purchase Ginseng. She never varied from it).

- Mary called right away when her father called saying they demanded more money. Mary is very adamant that she does not know her father’s business ventures and can not think of anyone who would kidnap him. Intercepts indicate Michael in Toronto has a good idea and Mary has failed to indicate this.

[My emphasis.]

…

Mary does report on calls that can be corroborated but has to be prodded to bring forth the information. Cpl. CHEUNG instructed Mary to get the name of Peter’s secretary but she failed to do so. Later said she “forgot.”

[My emphasis.]

- Even though told to keep her phone on (06-03-01) Mary turned it off and two phone calls went directly to voice mail. She did not advise negotiators.

…

- Both her and Kenny came into the office shortly after. Last call from Peter. Accuses her of going to the police. She denies it.

- Looks at photos Lawrence provided. They both say they do not know them but it feels like they are not divulging everything.

[My emphasis.]

…

- Throughout this investigation Mary has been constantly probing about investigator techniques (who is wired up, who is being followed) to the point of often forgetting to ask normal questions like “has any progress been made, how long can this go on” etc.

…

- She said she had called and Jenn’s sister said they had gotten the money together and were waiting but the calls stopped coming two days ago. She gave a phone # in CHINA but said she did not know Jenn’s sister’s name and just called her “Jenn’s sister.”

- On Sunday Mar. 5th Jimmy KWOK interviewed Jenn’s sister, PAN, Chun Feng ([blacked out]). PAN is close with her sister Jen and they phone every two days. For the week previous Mar 1st there was no call from Jen. PAN started calling Mary making inquiries about Jen’s whereabouts. On Mar. 1st Jenn phoned PAN from a private number and said “I hear your looking for me” Jenn says “I’m o-kay, I’m at a house with Peter no problem, no worries.” (HOW DID JENN KNOW PAN WAS LOOKING FOR HER) Jenn asks PAN how much money is in the company account and PAN says about one million RMB’s (Approximate $140,000). At no point did Jen ask PAN for money. Jen did not sound stressed. Awhile later Mary calls PAN back and tells her there are three people missing, Mary already gave all her money and needs money from China. Mary instructed PAN “if the call demand they release everybody or they get no money Mary tells PAN she needs the money. There was no money demand from Peter or Jenn.

[Emphasis in original.]

-The phone number Mary gave for Jennifer’s sister in China is one digit different than the phone number she actually has.

-Total lie from what Mary told me on Saturday.

[My emphasis.]

[100] In addition to the briefing notes that I have referenced in the period between the granting of Authorization P‑12 and the application for Authorization P‑17, Sergeant Seward wrote many very detailed “Briefing Notes” on behalf of Superintendent Schmietenknop to advise their superiors of the ongoing status of the investigation and to justify the continued use of R.C.M.P. resources. Due to the nature of the Briefing Notes and their limited distribution, they were not seen by Constable Carr during his preparation of his affidavit in support of Authorization P‑17.

[101] The contents of the Briefing Notes do, however, accord with the observations made by the investigators as recorded in the daily briefing notes that were available to Constable Carr and to which I have earlier referred. He had also attended many of the briefings at which the various concerns about a possible “scam” or “bogus” kidnapping being orchestrated by Peter Li and about the veracity and reliability of Mary Li, Ken Feng and others were raised. I will refer to the contents of some of the contents of Sergeant Seward’s Briefing Notes later in this ruling when considering the validity of Authorization P‑17.

[102] On March 8, 2006, the police entered 6730 Laurel Street. Among other things seized during that search was a laptop computer which the Crown alleges is the one identified by Mary Li as missing from her father’s apartment on February 23, 2006, and which the Crown now alleges to be the property of Jennifer Pan. The accused Ly (alleged by the police to be “Q”) has challenged the admissibility of the evidence obtained during that search under s. 8 of the Charter, however that challenge has not yet been heard.

[103] On March 10, 2006, the police obtained Authorization P‑17 from Associate Chief Justice Dohm and the investigation continued with no progress being made in locating Peter Li, Jennifer Pan, or Xiao Chen, and with continuing and mounting concerns being expressed by the police about the credibility of the Li family and the possibility of a scam or ruse being perpetrated by Peter Li.

[104] On March 19, 2006, however, a dramatic turn of events occurred when the complainants re-appeared. The complainants say this occurred while they were being transferred to another location in contemplation of their release on a promise to obtain more money for their captors and that there was a confrontation between Yuan Cheng and some of the alleged kidnappers during which they escaped. I have learned from a previous disclosure application on this file that there is physical evidence that Yuan Cheng received serious head injuries that day.

[105] After being released, between March 20 and March 31, 2006, Peter Li and Jennifer Pan had numerous telephone communications with the accused, Yat Fung Albert Tse that were intercepted by the police pursuant to Authorization P‑17.

[106] The Crown has given notice of its intention to lead the contents of 15 of those intercepted communications at trial, as well as the contents of another 8 calls intercepted under Authorization P‑17 between March 19, 2006 and March 31, 2006. It does not seek to lead as evidence any calls intercepted between March 10 and 18, 2006. Of the 8 calls that did not include the accused, Tse seven were recorded between the complainants and other individuals, the identity of whom is not now known to me, all of which were intercepted on March 19, 2006, and one call was from Jennifer Pan to Corporal Chung on March 22, 2006.

IV. ANALYSIS AND DISCUSSION

[107] I will first determine the constitutional validity of s. 184.4 of the Criminal Code. I will then consider issues relating to the admissibility of evidence arising from the implementation of s. 184.4 by the R.C.M.P. on February 25, 2006, including issues concerning the derivative use of information obtained from intercepted communications.

[108] Those issues will have some impact on my consideration of the validity of Authorization P‑12. My consideration of Authorization P‑12 will, however, also require consideration of other issues, including issues of sub-facial validity arising from the content of the affidavit in support of Authorization P‑12 and the cross-examination of the affiant, Constable Carr.

[109] I will next turn to issues related to the validity of Authorization P‑17 that will also require consideration of issues of sub-facial validity, including the content of the affidavit in support of Authorization P‑17 and concerns arising from the cross-examination of the affiant, Constable Carr. It will also require consideration of the effect of the issuance of Authorization P‑17 upon any continuing rights to intercept communications under Authorization P‑12.

A. THE CONSTITUTIONAL VALIDITY OF S. 184.4 OF THE CODE

[110] For ease of reference, I repeat the provisions of s. 184.4 of the Code which provide:

A peace officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where

(b) the peace officer believes on reasonable grounds that such an interception is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and

[111] The accused submit that s. 184.4 of the Code contravenes s. 52(1) of the Constitution Act, 1982 which provides:

The Constitution of Canada is the Supreme Law of Canada and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

[112] Counsel for the accused submit that s. 184.4 of the Code contravenes the fundamental freedoms guaranteed by s. 7, 8 and 11(d) of the Charter and is not saved by the provisions of s. 1 of the Charter. They submit that it is accordingly of no force or effect and that evidence obtained by its implementation in this case is presumptively inadmissible against them as having been illegally obtained. They seek a declaration of the constitutional invalidity of s. 184.4, as well as remedies precluding the admission of evidence obtained by its use.

[113] Sections 7, 8 and 11(d) of the Charter provide:

(7) Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

(8) Everyone has the right to be secure against unreasonable search and seizure.

…

(11) Any person charged with an offence has the right…

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

[114] Section 1 of the Charter provides:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[115] I am told by all counsel that this is the first case where the provisions of s. 184.4 have been considered in the constitutional context.

[116] They have also advised me that they are aware of only three decisions of any courts in Canada that have considered s. 184.4 of the Code in any context.

[117] In R. v. Khela, 2004 BCSC 38, McKinnon J. considered s. 184.4 only to the extent that the accused challenged the bona fides of the police in invoking s. 184.4 in that case. Although there was some discussion about the purposes of s. 184.4 and the burden upon the police of proving compliance with the section before any evidence that was obtained pursuant to it could be admitted at trial, McKinnon J. specifically stated:

The applicants at bar made it clear that they were not seeking Charter remedies insofar as s. 184.4 was concerned, only with respect to the general admissibility of P37 under s. 186.

[118] I also understand that in R. v. Jotakoun and Pham (unreported May 9, 1995), (B.C.S.C.) to which McKinnon J. referred in Khela, Vickers J., while assessing the admissibility of cellular phone records of conversations captured by police after seizing a cellular phone, concluded that such interceptions had to be authorized by law. In canvassing the various sections of the Code that might authorize the interceptions, Vickers J. looked at s. 184.4, but given the absence of urgency or serious harm concluded that s. 184.4 could not authorize the interceptions in that case.

[119] Finally, in R. v. Gyles (May 16, 2003), Docket 6098/02, [2003] O.J. No. 1922, 2003 CarswellOnt 6649 (S.C.J.) (QL), Wein J., in obiter dicta, commented upon the possibility that in exigent circumstances contemplated by s. 184.4 lower than usual standards might apply in relation to the acceptance of the reliability of information provided by informants.

[120] It is common ground that in determining whether an enactment contravenes s. 52(1) of the Constitution Act, 1982 by reason of its alleged contravention of fundamental freedoms guaranteed by the Charter, the Court must first interpret the provisions of that enactment.

[121] The parties depart, however, on what they say is the proper interpretation of the provisions of s. 184.4.

[122] The accused submit that interpretation of the section must lead to the conclusion that it is both overly broad and vague, and that it also fails to comply with established constitutional principles and safeguards that allow the state to infringe upon its citizens’ privacy rights but only when such principles and safeguards are observed.

[123] The Crown submits that if it is correctly interpreted, s. 184.4 of the Code is neither overly broad nor vague and also that it properly balances the need of the state to prevent crime and prevent harm to victims of crime in exigent circumstances against competing privacy rights and does so within established constitutional parameters.

[124] The accused and the Crown also depart in their submissions concerning the starting point for the interpretation of the provisions of s. 184.4 of the Code.

[125] The Crown submits that in assessing the constitutional validity of s. 184.4 of the Code, the Court should assume a situation where the law has been properly applied. It says the facts of the case which give rise to the constitutional challenge may inform the constitutional debate, but that any failure of the police to properly implement s. 184.4 in this or any other case does not establish that the section is unconstitutional. Mr. Shaw submits that “operational deficiencies” do not dictate a finding of constitutional invalidity because if s. 184.4 is correctly implemented in exigent circumstances in accordance with its terms, its operation will pass constitutional muster. In making those submissions, the Crown relies heavily upon the majority decision in Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69 [Little Sisters].

[126] In Little Sisters, the Supreme Court of Canada determined that notwithstanding that customs officials had systematically applied Customs legislation that banned the importation of material deemed obscene (within the provisions of the Code) in a discriminatory manner contrary to s. 2 (b) of the Charter, the Customs legislation itself was not unconstitutional because it was capable of being enforced in a non-discriminatory way.

[127] In reaching that conclusion, Binnie J.(for the majority) said at ¶71:

… My colleague Iacobucci J. accepts the propositions that "[t]his Court's precedents demand sufficient safeguards in the legislative scheme itself to ensure that government action will not infringe constitutional rights" (para. 204), and because "the legislation makes no reasonable effort to ensure that it will be applied constitutionally to expressive materials" (para. 211), Code 9956 should be struck from the Customs Tariff. I do not think there is any constitutional rule that requires Parliament to deal with Customs' treatment of constitutionally protected expressive material by legislation (as the appellants contend) rather than by way of regulation (as Parliament contemplated in s. 164(1)(j)) or even by ministerial directive or departmental practice. Parliament is entitled to proceed on the basis that its enactments "will be applied constitutionally" by the public service.

[128] He went on to state that the initial question to be decided was (at ¶73):

…[W]hether the Customs legislation itself contains procedures that infringe Charter rights, as in Morgentaler, or whether the problem here is implementation, aggravated by administrative constraints such as limited budgets and lack of qualified personnel, as found by the trial judge.

[129] In further disagreeing with the dissenting view expressed by Iacobucci J., (on behalf of himself, Arbour and LeBel JJ.) Binnie J. also said (at ¶82):

Iacobucci J. argues that Parliament was constitutionally required to spell out a more rights-protective regime in the Act itself, but in my view, for the reasons given below, it was open to Parliament in creating this type of government machinery to lay out the broad outline in the legislation and leave its implementation to regulation by the Governor in Council or departmental procedures established under the authority of the Minister. A failure at the implementation level, which clearly existed here, can be addressed at the implementation level.

[130] In result, the majority determined that although the impugned Customs legislation contravened s. 2(b) of the Charter, it was saved by operation of s. 1 of the Charter except to the extent that a clause placing a reverse onus on importers to establish that goods were not obscene had to be struck down.

[131] Counsel for the accused submit that the majority analysis in Little Sisters is of little, if any, assistance to the determination of the constitutional validity of s. 184.4 of the Code. They emphasize that Little Sisters was not concerned with s. 8 Charter principles that have developed over many years of analysis and was concerned with delegation of regulatory powers rather than with constitutional statutory interpretation in the criminal law context.

[132] I agree in part with the submissions of both the Crown and the defence concerning the extent to which Little Sisters should govern my approach to statutory interpretation in this case. Specifically, I agree with the Crown that in interpreting s. 184.4 of the Code I should assume that peace officers who may invoke its use will act in compliance with the conditions and constraints placed upon them by the terms of the section. In other words, I should assume that they will not act capriciously or oppressively in breach of fundamental rights as occurred in Little Sisters.

[133] On the other hand, I also agree with the position advanced by the accused that the way in which s. 184.4 of the Code has been interpreted and implemented by the police in this and in other cases is relevant to interpretation issues concerning allegations that the section is constitutionally both vague and overly broad. Further, as I will later discuss, I also agree with the submissions of defence counsel that s. 184.4 of the Code must be interpreted in the context of those principles that emerge from the jurisprudence that has specifically addressed the constitutionality of search-and-seizure legislation generally and wiretap legislation in particular.

[134] With those considerations in mind, I now turn to what I consider to be the correct interpretation of s. 184.4 of the Code having regard to the defence allegations of unconstitutional vagueness and over-breadth.

(1)

Is s. 184.4 void for vagueness?

[135] The defence argument that s. 184.4 of the Code is void for vagueness focuses primarily upon its alleged contravention of s. 7 of the Charter. They say that a law that is vague breaches s. 7 because it renders indefinite and unpredictable the conditions under which the state may interfere with fundamental freedoms. In this case, they submit that the unlawful interception of private communications would not only result in a breach of an accused person’s s. 8 Charter right to be free from unreasonable search or seizure, but could also lead to an unfair trial in breach of s. 11(d), and thus a breach of s. 7 arising from a deprivation of liberty caused by the breach of principles of fundamental justice.

[136] In making their submissions, the accused rely primarily upon R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 74 C.C.C. (3d) 289 [Nova Scotia Pharmaceutical]; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, 99 C.C.C. (3d) 97 [Canadian Pacific]; and R. v. Morales, [1992] 3 S.C.R. 711, 77 C.C.C. (3d) 91.

[137] In Nova Scotia Pharmaceutical, the Court succinctly stated the doctrine of constitutional vagueness in the following terms at p. 643:

The doctrine of vagueness can therefore be summed up in this proposition: a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate. This statement of the doctrine best conforms to the dictates of the rule of law in the modern State, and it reflects the prevailing argumentative, adversarial framework for the administration of justice.

[138] The Crown does not take issue with that proposition. It submits, however, that if judicial interpretation of the impugned legislation is possible, vagueness issues do not arise. In support of that proposition the Crown relies on the observation of the Court in Canadian Pacific (at ¶47) that:

In undertaking vagueness analysis, a court must first develop the full interpretive context surrounding an impugned provision. This is because the issue facing a court is whether the provision provides a sufficient basis for distinguishing between permissible and impermissible conduct, or for ascertaining an "area of risk". This does not necessitate an exercise in strict judicial line-drawing because, as noted above, the question to be resolved is whether the law provides sufficient guidance for legal debate as to the scope of prohibited conduct. In determining whether legal debate is possible, a court must first engage in the interpretive process which is inherent to the "mediating role" of the judiciary (Nova Scotia Pharmaceutical Society, supra, at p. 641). Vagueness must not be considered in abstracto, but instead must be assessed within a larger interpretive context developed through an analysis of considerations such as the purpose, subject matter and nature of the impugned provision, societal values, related legislative provisions, and prior judicial interpretations of the provision. Only after exhausting its interpretive role will a court then be in a position to determine whether an impugned provision affords sufficient guidance for legal debate.

[Emphasis in original.]

[139] Statutory interpretation is thus at the heart of the vagueness inquiry in this case and should not be considered in the abstract. Rather, it must be considered in the context of the legislation at issue, the interests of society that are engaged by the legislation, any judicial interpretation of the same or similar provisions, and to at least a limited extent the evidence adduced on this voir dire concerning how the police have themselves interpreted the powers granted by s. 184.4 of the Code. I refer to evidence concerning how the police have themselves interpreted the powers granted not because it is determinative of those powers, but because it informs the debate as to whether the provisions are so vague that they cannot be reasonably interpreted.

[140] In this interpretive inquiry and analysis, I must start with an examination of the stated legislative purpose behind the enactment of s. 184.4 and related provisions of Part VI of the Code when that legislation was introduced in Parliament on February 23, 1993. See: House of Common Debates, XIII (February 25, 1993).

[141] In introducing Bill C‑109, The Honourable Perrin Beatty on behalf of the Minister of Justice for Canada stated (at 1645) that:

Mr. Speaker, I am pleased to speak in support of Bill C‑109, as it includes two specific provisions related to privacy which I believe this country needs. The first deals with electronic surveillance and is used by the police. The second is the interception of radio-based communications.

The changes being proposed by my colleague, the Minister of Justice, to part VI and part XV of the Criminal Code respond to a series of Supreme Court decisions which significantly affect the way police and other agents of the state can do their jobs.

[142] Three decisions of the Supreme Court of Canada referred to by the Minister were R. v. Duarte, [1990] 1 S.C.R. 30, 53 C.C.C. (3d) 1 [Duarte]; R. v. Wiggins, [1990] 1 S.C.R. 62, 53 C.C.C. (3d) 476; and R. v. Wong, [1990] 3 S.C.R. 36, 60 C.C.C. (3d) 460.

[143] After summarizing those decisions and one other, the Minister stated (at 1650):

As a result of these four cases and the recommendations made by the courts, the Minister of Justice is proposing the following amendments to the Criminal Code: first to provide for a statutory authority for an electronic lifeline to permit police and others in potentially dangerous situations to have their conversations surreptitiously intercepted by backup teams; second to provide for a warrant procedure for police and others to intercept communications with the consent of a participant to a conversation, to gather evidence or information relevant to suspected criminal activity on reasonable grounds; third, to provide for warrant procedures so the police and other enforcement officials can use video and other surveillance technology such as electronic tracking devices; fourth, to provide protection from civil or criminal liability for individuals assisting in the execution of authorizations or warrants; fifth, to provide for warrants and orders to engage in activities or obtain information or co-operation which would otherwise constitute an unreasonable search or seizure; sixth, to streamline the evidentiary and procedural regime applicable to evidence gathered through electronic surveillance.

…

The primary purpose of these amendments is to permit the use of technology by police forces in the performance of their duties, but only in a way that does not contravene the Canadian Charter of Rights and Freedoms.

The amendments would have the effect of simplifying the rules of admissibility of evidence. They would also increase the effectiveness of both the police and Crown prosecutors, in accordance with the recommendations of the Supreme Court.

We are talking about the resources police officers need to perform their duties satisfactorily.

[144] The Minister then went on to address amendments to the Code that would ensure that privacy protection would extend to communications by radio in addition to telephone communications. Of most particular concern was the extension of the protection of privacy in communications by cellular telephones. In doing so, he reiterated the Government’s goal of ensuring the protection of privacy rights. He stated (at 1700):

First of all, these amendments will deem all encrypted radio-based telephone communications to be private and protected by the full strength of the law.

Second, the proposed changes to the Criminal Code will prohibit malicious and profit-motivated interception of any radio-based telephone communication. Anyone who deliberately intercepts communications with the intention of harm or any other motive of securing a financial advantage would be subject to prosecution.

Third, with a limited number of exceptions, the disclosure or subsequent use of any intercepted radio-based telephone communication would be prohibited without the consent of a party to it.

Anyone who contravenes these provisions can be punished on summary conviction with a fine of not more than $25,000 and/or one year in jail in the case of an individual, or with a fine not exceeding $75,000 in the case of a corporation.

Finally, the Radiocommunication Act will be amended to allow private right of action. Any victim of such wrongdoing will have the right to take the perpetrator to court for damages. This provision will give a clear civil recourse for individuals who suffer damages because of unauthorized interception.

I am convinced that these provisions for protection, prevention and prosecution, when taken together will offer the most effective solution to the complex issue of privacy.

[145] Perhaps surprisingly, there was no direct reference by the Minister when introducing Bill C‑109 to the purposes behind or the goals expected to be achieved by the inclusion of what became s. 184.4 of the Code.

[146] However, subsequent proceedings before the House of Commons Legislative Committee and before the Senate Standing Committee on Legal and Constitutional Affairs after the introduction of Bill C‑109 do shed some light on the legislative intent behind s. 184.4. Those subsequent proceedings also evidence concerns expressed by some witnesses about many of the same issues that are now raised by the accused in this constitutional challenge including, in particular, concerns about lack of internal or external oversight of the actions of individual peace officers and other issues of police accountability in the context of the invasion of privacy.

[147] At the end of that consideration of the now impugned provisions, Parliament did not amend s. 184.4 of the Code to address those or other concerns relating to the possibility of unfettered invasions of privacy by state agents. It appears that Parliament accepted that, as drafted, s. 184.4 had sufficient internal limitations to preclude arbitrary actions by individual police officers. More specifically, in an appearance before the Senate Standing Committee on Legal and Constitutional Affairs on June 15, 1993, The Honourable Pierre Blais, then Minister of Justice and Attorney General of Canada, addressed the rationale behind s. 184.4 of the Code as drafted and ultimately enacted. At 48:15 to 48:16 of the report of those proceedings he stated:

Another provision applies in unusual circumstances. In cases where, because of the urgency of the situation, policemen must intervene to prevent serious injury to a person or the destruction of property (and they have an opportunity to do so), this provision enables them to try to intercept communications in order to find out what is going on if this can help save lives, until they are able to obtain authorization.

Think about the case of a hijacker who holds up an airplane on an airport runway, or a disturbed person who holds his wife and children hostage and threatens to kill them; is it reasonable in these cases, to refuse policemen the right to try and find out what is going on until they can find a judge and meet the strict requirements of the procedure that involves collecting elements of proof? No, not when every minute counts. I feel that this provision is necessary to ensure public safety. Moreover, I do not think the Charter should be an obstacle to those who wish to save lives or prevent serious damage to property.

(Standing Senate Committee on Legal and Constitutional Affairs, Fifth and Final Proceedings On: Examination of Bill C‑109, An Act to Amend the Criminal Code, the Crown Liability and Proceedings Act and the Radiocommunication Act, 34th Parl., No. 48 at 48:15 and 48:16 (June 15, 1993) The Honourable Pierre Blais Minister of Finance and Attorney General of Canada)

[148] My review of all of the legislative material filed by the Crown on this application leads me to conclude that Parliament’s intention in enacting s. 184.4 of the Code was to allow a peace officer facing exigent circumstances of apprehended serious harm to persons or property to attempt to prevent that harm by intercepting communications without judicial authorization if the officer apprehended that both the exigency and potential for serious harm were such that the lapse of time required to obtain judicial authorization could increase the risk of the occurrence of the apprehended harm.

[149] The issue that must be decided on this constitutional challenge is whether the means chosen by Parliament to meet that objective does so in a manner that does not infringe upon constitutionally protected fundamental rights.

[150] That inquiry commences with the interpretation of the provisions of s. 184.4 of the Code in the context of the constitutional vagueness issues raised by the accused. It must answer this question: Are the powers granted to peace officers by s. 184.4 of the Code sufficiently ascertainable through meaningful debate and judicial interpretation that it can be determined whether the invocation of s. 184.4 by a peace officer in any given circumstance is (or was) within the prescribed limits of the section? In other words: Does the section prevent arbitrary (and thus unconstitutional) law enforcement?

[151] To answer that question it is necessary to examine the words and phrases used in the section in the context of its purpose and the constitutional issues raised by the accused. It is also necessary to bear in mind that when doing so, even when it is criminal legislation that is impugned under the Charter, the Court should start with a presumption of constitutionality. See: Application under s. 83.28 of the Criminal Code (Re); R. v. Bagri, [2004] 2 S.C.R. 248 at ¶34 and 35, 2004 SCC 42 in which Iacobucci and Arbour JJ., for the majority, stated:

[34] The modern principle of statutory interpretation requires that the words of the legislation be read "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": E.A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. This is the prevailing and preferred approach to statutory interpretation: see, e.g., Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193, at para. 21; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, 150 C.C.C. (3d) 321, 194 D.L.R. (4th) 1, at para. 33; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, 212 D.L.R. (4th) 1, at para. 26. The modern approach recognizes the multi-faceted nature of statutory interpretation. Textual considerations must be read in concert with legislative intent and established legal norms.

[35] Underlying this approach is the presumption that legislation is enacted to comply with constitutional norms, including the rights and freedoms enshrined in the Charter: R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 367. This presumption acknowledges the centrality of constitutional values in the legislative process, and more broadly, in the political and legal culture of Canada. Accordingly, where two readings of a provision are equally plausible, the interpretation which accords with Charter values should be adopted: see, Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 at p. 1078, 59 D.L.R. (4th) 416; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 at p. 660, 74 C.C.C. (3d) 289, 93 D.L.R. (4th) 36; R. v. Lucas, [1998] 1 S.C.R. 439, 123 C.C.C. (3d) 97, 157 D.L.R. (4th) 423, at para. 66; and Sharpe, supra, at para. 33.

[152] Counsel for the accused submit that various words and phrases in s. 184.4 are so vague, ambiguous, or undefined that they enable arbitrary law enforcement. They focus in particular on the phrases “the urgency of the situation”, “reasonable diligence”, “unlawful act”, and “serious harm”.

[153] In answer, on behalf of the Crown, Mr. Shaw submits that the totality of the internal limits on police authority found within s. 184.4 of the Code are not only capable of ascertainment by meaningful debate but can also be judicially interpreted to achieve constitutional compliance.

[154] Those competing submissions require an interpretation not only of the words and phrases individually but in context of the whole of s. 184.4 and the Parliamentary objective in enacting the legislation.

[155] I have determined that the vagueness analysis can be most usefully undertaken by first considering the impugned phraseology as found within ss. 184.4(a) and (b) and then assessing them within the context of not only s. 184.4 as a whole, but also as part of Part VI of the Code. I will then address ss. 184.4(c) because of submissions made by Crown Counsel as to its proper interpretation.

(a)

Subsection 184.4(a)

[156] Subsection 184.4(a) of the Code provides that a peace officer may intercept private communications without prior judicial authorization when the peace officer believes on reasonable grounds that the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained under any other provision of Part VI.

[157] I agree with the submission of the Crown that the phrase “urgency of the situation” cannot be read in isolation. It must be read in conjunction with the requirement that the peace officer has reasonable grounds to believe not only that the circumstances are exigent (by reason of an apprehension of the occurrence of imminent serious harm under ss. 184.4(b)), but also with the requirement to believe that prior judicial authorization could not be obtained with reasonable diligence.

[158] Counsel for the accused submits that the phrase “urgency of the situation” is ambiguous to the extent that it could be interpreted to refer to two different types of urgency. One definition of urgency could refer to the external circumstances that could give rise to the harm. Another could refer to the availability of other means of investigation.

[159] I do not accept such a bifurcated analysis when the section is read as a whole. I am satisfied that the phrase “urgency of the situation” must be interpreted as referring both to the external circumstances of the event requiring police intervention as well as to the availability of other means of investigation. Viewed that way, the “urgency of the situation” is circumscribed by the need for a peace officer’s apprehension of imminent serious harm and further constrained by the statutory requirement that the exigency of the situation is such that the peace officer must also reasonably believe that the harm could not be prevented by a reasonably diligent attempt to obtain prior judicial authorization. I find that so interpreted the phrase “urgency of the situation” is not constitutionally vague.

[160] Also, while the accused submit that the concept of “reasonable diligence” is also vague, I do not agree.

[161] Firstly, I reach that conclusion because reasonableness is a concept which finds expression and is given meaning or definition by many concepts in the criminal law. It is, for example, well established that for a police officer to be acting reasonably in arresting an individual without warrant he or she must have both objective and subjective grounds for believing that the person has committed a crime. Also, the fundamental criminal law concept of proof beyond a “reasonable” doubt is not only capable of definition, but is necessarily interpreted by judges and juries on a daily basis in Canada. The Supreme Court of Canada has also repeatedly held that “reasonable” is capable of interpretation within the legislative context in which it is used and the facts of any given case. See for example: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] S.C.R. 76 ¶28, 2004 SCC 4; R.B. v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 ¶92, 122 D.L.R. (4th) 1; and R. v. Bernshaw, [1995] 1 S.C.R. 254 ¶98, 95 C.C.C. (3d) 193.

[162] Secondly, the concept of reasonable diligence has received judicial consideration and been deemed capable of definition in a number of circumstances in which the courts have ascribed meaning to the phrase in the context in which it is used. See, for example: R. v. McMartin, [1964] S.C.R. 484 at 491‑93, [1965] 1 C.C.C. 142, in the context of applications to admit fresh evidence on appeal; and R. v. Brydges, [1990] 1 S.C.R. 190 at 204, 53 C.C.C. (3d) 330 as well as R. v. Prosper, [1994] 3 S.C.R. 236 at 269-70, 92 C.C.C. (3d) 353, in the context of an accused person’s assertion of s. 10(b) Charter rights. All of those cases lead to the conclusion that the meaning to be attributed to “reasonable diligence” will be dependent upon not only the context of the requirement, but also upon an evaluation of competing societal values.

[163] I have concluded that “reasonable diligence” under ss. 184.4(a) of the Code should be construed to conform with the s. 8 Charter right of individuals to be free from “unreasonable” search or seizure by ensuring the exercise of a very high standard of diligence in keeping with the fundamental privacy interests that are at stake.

[164] Although I am satisfied that the phrases “urgency of the situation” and “reasonable diligence” are neither so vague or incapable of definition that they render s. 184.4 of the Code constitutionally invalid, one issue that does give me serious concern goes to the question of how a peace officer contemplating the use of s. 184.4 will be able to comply with its terms.

[165] The concern I have is this: A peace officer confronted with objectively and subjectively exigent circumstances that could result in serious harm must confront the question of how long it will likely take to obtain prior judicial authorization to intercept private communications using due diligence and whether the time required is such that the serious harm may not be prevented if an emergency intercept is not undertaken. It is, however, obvious that the peace officer can never know at the outset with any precision how long the exigent circumstances will continue (as, for example, in a hostage‑taking situation with ransom demands) and therefore cannot know with any degree of certainty whether a prior judicial authorization can in fact with reasonable diligence be obtained before the harm sought to be prevented may occur.

[166] In my view, the only way a peace officer can comply with the provisions of s. 184.4 of the Code is to, upon determining that the urgency of the situation is such that a judicial authorization could not, with reasonable diligence, be obtained before the harm sought to be prevented could occur:

1. implement s. 184.4 of the Code to intercept only those private communications that may be lawfully intercepted pursuant to ss. 184.4(c); and

2. immediately, and with the least delay possible in the circumstances, also take all steps necessary to obtain a judicial authorization under Part VI of the Code.

[167] For ease of reference, I will in future call that process the “constitutionally compliant implementation process” because in my view it is necessary to comply with the provisions of s. 184.4 as enacted and avoid the type of arbitrary law enforcement that would contravene s. 7 of the Charter.

[168] In formulating the constitutionally compliant implementation process I have used the phrase “immediately and with the least delay possible in the circumstances” to ensure that there is no arbitrary or unsanctioned waiting period before acting to regularize the interception of private communications pursuant to those constitutional parameters that I will later discuss. I also, however, recognize that a myriad of circumstances such as (but not necessarily limited to) for example: the extent of resources available to the police to investigate the emergency (for example, in remote areas); the time of day or week during which the exigent circumstances may arise; other exigencies that may arise during the investigation; and, the availability of judicial resources may impact upon the length of time that it may reasonably take to obtain a judicial authorization.

[169] I am satisfied by the totality of the evidence adduced on this application that in most cases of exigency warranting the implementation of s. 184.4 of the Code the usual practise that should be followed is to immediately seek a judicial authorization under s. 188 of the Code while at the same time preparing an application under s. 186. That process would both minimize the delay in obtaining the constitutionally required judicial oversight and also allow more time for the more complex task of preparing the necessary affidavit in support of a s. 186 application. While I make that observation based upon the evidence in this case, for the reasons I have addressed in the preceding paragraph I do not go so far as to say that it should be followed in all cases. The circumstances of the exigencies must govern the appropriate practise in any given case provided that the practise followed is within the parameters of the constitutionally compliant implementation process I have formulated.

[170] The constitutionally compliant implementation process is, in my opinion, also consistent with the stated objectives of legislation expressed by the Minister of Justice to which I earlier referred, i.e., that “this provision enables them [a peace officer] to try to intercept communications in order to find out what is going on if this can save lives, until they are able to obtain authorization”. (My emphasis.)

[171] Simply put, when a peace officer cannot know for how long the emergency situation requiring the implementation of s. 184.4 of the Code will last he or she cannot delay pursuing a judicial authorization by saying “it would take too long” because the officer cannot know that to be the case. Any delay before proceeding with a judicial authorization and any delay in pursuing such application with such diligence as the circumstances reasonably allow would lead to arbitrary law enforcement.

[172] My interpretation of ss. 184.4(a) of the Code that requires a peace officer to act in accordance with the constitutionally compliant implementation process leads to the obvious conclusion that any policy decision of a police agency that suggests that an officer should wait any prescribed period of time before seeking judicial authorization is arbitrary, an issue I will address more fully when considering the implementation process followed by the police in this case in the next part of this ruling.

(b)

Subsection 184.4(b)

[173] I will next address the vagueness issues raised by the accused concerning ss. 184.4(b), which provides that a peace officer invoking s. 184.4 to intercept private communications must believe on “reasonable grounds that such an interception is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property”.

[174] I am satisfied that the impugned phraseology in ss. 184.4(b), although somewhat imprecise, does not render s. 184.4 unconstitutionally vague or authorize arbitrary law enforcement when read in the context of the whole of the section and the harm which Parliament intended to address.

[175] Although reference is made in the subsection to an “unlawful act” rather than to defined offences, I am of the opinion that properly interpreted the phrase “unlawful act” can only refer to offences enumerated in s. 183 of the Code. That is so because it is only in respect of such enumerated offences that any Part VI authorization to intercept private communications could be obtained. Since ss. 184.4(a) requires as a precondition to its use the reasonable belief that the urgency of the situation is such that an authorization under Part VI could not be obtained without reasonable diligence, it cannot be the case that by using the phrase “unlawful act” Parliament intended to allow the unauthorized interception by the police of communications for which a judicial authorization could not be obtained.

[176] I accordingly find as a matter of statutory interpretation that an “unlawful act” referred to in ss. 184.4(b) is limited to an offence enumerated in s. 183 of the Code. So interpreted, the phrase “unlawful act” is not constitutionally vague. I do, however, leave for later discussion issues of alleged over-breadth that may arise even with that interpretation of “unlawful act” in the context of the legislation as a whole.

[177] I also find that the phrase “serious harm” as used in ss. 184.4(b) is not constitutionally vague. The concept of serious harm has received judicial consideration in numerous cases. See, for example, R. v. McCraw, [1991] 3 S.C.R. 72 at 79‑80, 66 C.C.C. (3d) 517 [McCraw] interpreting the phrase “serious bodily harm”, which interpretation would, in my view, apply equally to ss. 184.4(b) and the concept of “serious harm to any person”. Although not so directly on point, the reasoning in McCraw, calling on the ordinary dictionary meaning of seriousness as including “grave”, “grievous” or “attendant with danger”, is also capable of being applied when considering the concept of “serious harm to property”.

(c)

Subsection 184.4(c)

[178] I must address the proper interpretation of ss. 184.4(c), not only because it is relevant to the implementation of s. 184.4 by the police in this case, but also because of an interpretation of ss. 184.4(c) urged upon me by Crown Counsel.

[179] Subsection 184.4(c) determines those communications that can be intercepted by a peace officer in exigent circumstances. Specifically, it allows interception of private communications where:

…either the originator of the private communication or the person intended by the originator to receive it is the person who would perform the act that is likely to cause the harm or is the victim, or intended victim of the harm…

[180] The Crown has submitted that “victim” and “intended victim” should be interpreted to include family members of the person who is the subject of the threat of harm and goes so far as to submit that calls between such “related victims” could be lawfully intercepted pursuant to s. 184.4 of the Code.

[181] I am unable to agree with that submission.

[182] The interpretation suggested by the Crown distorts the plain language of that subsection and also fails to read ss. 184.4(c) to accord with the provisions of ss. 184.4(b), which allows resort to the emergency powers in ss. 184.4(b) only to prevent an unlawful act that would cause immediate serious harm. Read as the Crown suggests, ss. 184.4(c) would not only allow the interception of communications between any number of alleged undefined “victims”, but would also not require that an intercepted communication involve the alleged perpetrator.

[183] In my opinion, the emergency powers granted to peace officers by s. 184.4 only were intended by Parliament to allow the prevention of serious harm to the actual victim or intended victim of the apprehended harm by enabling the interception of private communications that could identify the perpetrator of the crime or at least his or her location so that the police could then take necessary steps to protect the victim from the anticipated harm. Any investigative benefit to the state arising from the interception of the communications in the ultimate prosecution of the perpetrator were intended only as a by-product of the real intent of the section, i.e., the prevention of serious physical harm in exigent circumstances.

[184] I am also satisfied that the interpretation of ss. 184.4(c) suggested by the Crown would introduce an element of vagueness into the legislation that would allow arbitrary and virtually unfettered police action in the investigation of crime.

[185] In my view, a plain reading of ss. 184.4(c) limits the communications that can be intercepted to those between the “perpetrator” of the anticipated serious harm and the actual “victim” or “intended victim” of that harm. In my opinion, that is the proper interpretation to be placed on ss. 184.4(c). It does not extend to the interception of communications of family members of the actual victim or intended victim threatened by the infliction of serious harm unless those family members are the recipients of calls from the actual or intended victim or perpetrator. I do, however also find that the definition of perpetrator should be read as being broad enough to include aiders or abettors of an actual perpetrator. I reach that conclusion by way of interpretation of the “parties to the offence” provisions of s. 21 and 22 of the Code.

[186] I turn next to the arguments of the accused related to the alleged over-breadth of s. 184.4 of the Code.

(2)

Is s. 184.4 of the Code overly broad?

[187] Although they are closely related as constitutional concepts, the doctrines of vagueness and over-breadth are different. In R. v. Heywood, [1994] 3 S.C.R. 761 at 792‑93, 94 C.C.C. (3d) 481, Cory J. (for the majority) explained the concepts in the following terms:

Overbreadth and vagueness are different concepts, but are sometimes related in particular cases. As the Ontario Court of Appeal observed in R. v. Zundel (1987), 58 O.R. (2d) 129, at pp. 157-58, cited with approval by Gonthier J. in R. v. Nova Scotia Pharmaceutical Society, supra, the meaning of a law may be unambiguous and thus the law will not be vague; however, it may still be overly broad. Where a law is vague, it may also be overly broad, to the extent that the ambit of its application is difficult to define. Overbreadth and vagueness are related in that both are the result of a lack of sufficient precision by a legislature in the means used to accomplish an objective. In the case of vagueness, the means are not clearly defined. In the case of overbreadth the means are too sweeping in relation to the objective.

Overbreadth analysis looks at the means chosen by the state in relation to its purpose. In considering whether a legislative provision is overbroad, a court must ask the question: are those means necessary to achieve the State objective? If the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason. The effect of overbreadth is that in some applications the law is arbitrary or disproportionate.

[188] The accused submit that s. 184.4 of the Code overreaches its objectives in many significant ways. Specifically, they say the means chosen by Parliament to address the prevention of imminently possible serious harm to persons or property are overly broad in the context of constitutionally protected privacy rights because:

1. there are no limits on the length of time for which the state may invade privacy without judicial approval or oversight;

2. there are no requirements for any notice of an interception to any person whose private communications have been intercepted;

3. there is no prescribed method of reporting to any civilian agency or Parliament the fact of the use of s. 184.4 of the Code or the frequency of resort to it;

4. as enacted, s. 184.4 could apply to a very broad class of unlawful acts that could not reasonably give rise to the types of harm that Parliament intended to address;

5. a very broad class of individuals (statutorily defined “peace officers”) are entitled to engage the section without internal approval or oversight; and

6. as interpreted by the Crown and as implemented by the R.C.M.P. in this case, ss. 184.4(c) would enable the police to intercept the communications of a virtually unlimited number and class of persons.

[189] Although these over-breadth concerns were advanced under s. 7 and 11(d) of the Charter, I have concluded that in all material respects they are more appropriately considered as part of the s. 8 analysis upon which I am about to embark.

[190] I reach that conclusion because:

1. many of the arguments raised concerning alleged over-breadth are answered by the interpretative conclusions I have already reached in determining allegations of vagueness;

2. what is at issue in these proceedings is first and foremost an evidence‑gathering provision which engages the fundamental right of accused persons to be free from unreasonable search and seizure under s. 8 of the Charter;

3. constitutional considerations and norms have emerged over the years in relation to search and seizure legislation in the context of privacy considerations under s. 8 of the Charter that are far more specific and germane to the issues now raised in relation to s. 184.4 of the Code than those relating to s. 7 and 11(d) of the Charter; and

4. generally speaking, if an evidence‑gathering provision is found to be unconstitutional as breaching the fundamental right of accused persons to be free from unreasonable search and seizure, a similar constitutional result would likely certainly apply under s. 7 or 11(d) Charter considerations.

[191] Alternatively, if I am wrong in those conclusions, in my opinion, the over-breadth issues raised by the accused are more appropriately considered under a s. 1 Charter analysis that will be necessary if I determine that s. 184.4 of the Code is unconstitutional because it breaches any Charter provision.

[192] I will accordingly now consider the s. 8 Charter issues raised by the accused.

(3)

Does s. 184.4 of the Code contravene the right to be free from unreasonable search and seizure under s. 8 of the Charter?

[193] Consideration of this question must start with the decision of the Supreme Court of Canada in Duarte .

[194] As I have previously noted, Duarte was one of the decisions that was the impetus to the implementation of Bill C‑109 to amend those provisions of the Code relating to interception of private communications that the Supreme Court had determined to be constitutionally unsound.

[195] The Crown submits that in those circumstances, as part of Bill C‑109 and now Part VI of the Code, s. 184.4 should be given additional constitutional respect as part of a “dialogue between the Court and Parliament” to correct prior constitutional deficiencies in the Code’s wiretap provisions.

[196] I do not agree with that submission. My reading of the wiretap legislation that existed before the amendments to the Code that were introduced as part of Bill C‑109 leads me to conclude that there was no provision similar to the present s. 184.4 of the Code. In those circumstances, it cannot be said that Parliament was reacting to judicial authority in relation to the subject matter of the section. Although it was part of the amendments to Part VI, s. 184.4 of the Code was new legislation and in those circumstances, arguments about its provisions being part of a “dialogue” are misconceived.

[197] Before turning to my analysis of s. 184.4 under s. 8 of the Charter and the constitutional principles enunciated by La Forest J. for a unanimous Court in Duarte, I must, however, first observe (as I said during the hearing of argument in this case) that I accept without hesitation that in truly exigent circumstances involving the very real potential for serious harm to persons or property, it may be necessary for state agents to interfere with individual rights of privacy to attempt to prevent that harm from actually occurring.

[198] The Supreme Court of Canada has recognized that in truly exigent circumstances the fundamental s. 8 Charter right to be free from unreasonable search and seizure must at times give way to state interests in the prevention of harm and also to the interests of those individual citizens who may be the victims of harm even when privacy expectations are at their highest. I note in particular the decisions of the Supreme Court of Canada in:

1. R. v. Feeney, [1997] 2 S.C.R. 13, 115 C.C.C. (3d) 129 [Feeney]: permitting entry by the police without warrant into a dwelling house to arrest a fleeing accused in cases of hot pursuit;

2. R. v. Godoy, [1999] 1 S.C.R. 311, (1998) 21 C.R. (5th) 205 [Godoy]: determining that the police could enter a dwelling house to investigate a 9‑1‑1 call without a warrant, not only due to state interest in the prevention of apprehended harm but also due to the interests of the person who had initiated the 9‑1‑1 call to whom the police owed a duty to investigate a potential emergency; and

3. R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52, [Mann]: in cases of real concern for officer safety (thus the protection of life), pat down searches incidental to arrest may be appropriate.

[199] Thus, I begin my analysis of the constitutionality of s. 184.4 in accordance with the constitutional standards addressed by the Court in Duarte by recognizing the legitimacy of Parliament’s stated goal of attempting to prevent reasonably apprehended serious harm to persons or property and recognizing also that in truly exigent circumstances the privacy rights of individuals may be overridden by such concerns.

[200] In Duarte, the Court was concerned with the constitutional validity of then ss. 178.11(2)(a) of the Code that allowed the interception of private communications without prior judicial authorization provided that one party to the conversation consented to that authorization. Usually the person consenting was an undercover police officer. In determining that the section breached the fundamental s. 8 Charter right to be free from unreasonable search and seizure, the Court examined what it determined to be appropriate safeguards to the interception of private communications of then Part IV.1 of the Code that rendered those provisions constitutionally valid. La Forest J., for the Court, stated (at 54-56):

The appellant raises the additional point that dispensing the police from the requirement to seek a warrant for conducting participant surveillance effectively allows the police to do indirectly what Part IV.1 of the Code prohibits them from doing directly. Faced with the choice of having to seek a warrant, and being able to proceed without one, it can reasonably be expected that they will, circumstances permitting, elect to proceed without one.

Here, the police, acting without any judicial authorization, wired an apartment for a period of some two years, installed listening devices in another location, and employed an automobile location beeper. In circumstances such as these, where the police have evidence of a conspiracy and have elicited the services of an informer, can there be any compelling reason to suggest that the interests of justice would not be better served by requiring the police to attend before a superior court judge to obtain an authorization as opposed to letting the police be the sole arbiters of the scope of the investigation and its duration?

It is worth noting, in this regard, the basis for the conclusion of Martin J.A. in R. v. Finlay, supra, that Part IV.1 of the Code is constitutional. While he was ready to accept that the interception of private communications does constitute a search and seizure within the meaning of those terms as they are used in the Charter, he concluded that such searches and seizures, when authorized in accordance with the requirements of Part IV.1 of the Code, would ordinarily be reasonable precisely and solely because the provisions and safeguards of Part IV.1 preclude the police from embarking on fishing expeditions in the hope of uncovering evidence of crime.

With regard to these safeguards it is worth remembering that Part IV.1 of the Code:

(a) stipulates that authorizations for electronic surveillance are only to be given on a showing that there is no real practical alternative (s. 178.13(1)); in other words, as put by the Ontario Court of Appeal in R. v. Playford (1987), 40 C.C.C. (3d) 142 at p. 185, 63 O.R. (2d) 289, 61 C.R. (3d) 101: "... it is treated as a last resort investigative mechanism", and can only be obtained for investigation of the most serious offences in the Code (s. 178.1);

(b) sets strict time-limits on authorizations (s. 178.13(2)(e));

(c) prescribes that a judge may include any conditions and restrictions that he considers advisable in the public interest;

(d) authorizes renewals only on a showing of cause and a detailing of all interceptions made prior to the request for the authorization and the number of previous authorizations;

(e) mandates that notification be given to the person whose communications have been intercepted (s. 178.23(1));

(f) requires the Solicitor General of Canada to prepare a comprehensive report on all electronic surveillance conducted pursuant to authorizations (s. 178.22(1));

(g) engages the responsibility of the Attorney General of the province in which the application is sought, or of the Solicitor General (or duly appointed agents) (s. 178.12(1)); and

(h) provides that authorizations may only issue on the order of a superior court judge (s. 178.12(1)).

If the constitutionality of Part IV.1 of the Code is predicated on the numerous safeguards designed to prevent the possibility that the police view recourse to electronic surveillance as a humdrum and routine administrative matter, it would seem anomalous that participant surveillance, which leaves to the sole discretion of the police all the conditions under which conversations are intercepted, should be held to meet the definition of "reasonable" in the context of s. 8 of the Charter. I think that the appellant makes a good point when he submits that the large-scale police investigative activity using participant surveillance for monitoring and recording private conversations effectively bypasses any judicial consideration of the entire police procedures and thereby makes irrelevant the entire scheme in Part IV.1 of the Code.

[201] While I recognize that not all of those safeguards need necessarily be present in every case to render the interception of private communications constitutionally permissible, the fact remains that absent such safeguards the constitutionality of legislation allowing the interception of private communications will be compromised.

[202] My inquiry into the constitutional validity will accordingly focus on the existence or lack of such safeguards under s. 184.4 of the Code in the context of s. 8 of the Charter, bearing in mind Parliament’s legitimate concerns to prevent serious harm in exigent circumstances. In undertaking that inquiry, I will examine each of the posited safeguards in the context of: the evidence on this voir dire; my previous determination of the appropriate interpretation of the provisions of s. 184.4 of the Code; the concerns with respect to alleged over-breadth raised by the accused; and, the expressed intention of Parliament in enacting the impugned provisions.

(a)

Electronic surveillance as a “last resort” investigative mechanism only for the most serious offences in the Code

[203] In my view, a reasonable apprehension of the risk of serious harm occurring to persons or property ameliorates the “last resort” concerns in Duarte. Further, both s. 186 and s. 188.1 of the Code permit the issuance of judicial authorization to intercept private communications in cases of demonstrated urgency without the need to establish investigative necessity as a precondition to issuance.

[204] As to the “most serious offence” limitation, as I have previously discussed, in my opinion “unlawful act” in ss. 184.4(c) of the Code must be interpreted to include only those offences enumerated in s. 183 of the Code. That interpretation especially in conjunction with the need for apprehension of “serious harm” will limit the application of the use of s. 184.4 to the “most serious offences in the Code” in compliance with this constitutional safeguard.

[205] I must, however, observe that as a matter of potential over-breadth it is difficult to apprehend that some of the offences enumerated in s. 183 of the Code could result in the type of exigency with which Parliament was concerned in enacting s. 184.4 of the Code.

(b)

Strict time limits on authorizations

[206] As I have earlier discussed, s. 184.4 has no time limits for the interception of communications other than those must be “read in” by way of interpretation to ensure the constitutionally compliant implementation process I have previously formulated in para. 166 of this ruling.

[207] Read and implemented in that way, although there would be no “strict time limits” upon the interception of communications under s. 184.4 of the Code, the duration of its use would be practically limited to a very short period appropriate to the legitimate exigency concerns that Parliament sought to address in enacting the impugned provisions.

[208] As I will later discuss, I am also satisfied that the continued validity of any authorization issued under s. 184.4 of the Code would terminate either upon the issuance of a judicial authorization under Part VI, or with the refusal of a judicial authorization at the time the application is made. In the latter circumstance, it would terminate by reason of a judicial ruling that the circumstances did not warrant a continuation of the interception of the private communications.

[209] I must, however, observe that it is fundamental to my determination that the absence of strict time limits on the authorization does not impact upon the constitutionality of s. 184.4 that it must be interpreted and implemented in accordance with the constitutionally compliant implementation process that I have formulated.

(c)

Judicially imposed conditions and restrictions deemed advisable in the public interest

[210] Obviously s. 184.4 of the Code provides no such safeguard. I am, however, satisfied that the existence of exigent circumstances giving rise to a reasonable apprehension of serious harm will be properly balanced with this need if the interception of communications is limited to very short periods by the constitutionally compliant implementation process discussed in the preceding paragraphs which will allow judicial consideration of the situation at the earliest possible time that is reasonable in the circumstances.

(d)

Authorizes renewals only on a showing of cause, the detailing of all interceptions made prior to the request for authorization and the number of previous authorizations

[211] This safeguard is not applicable to s. 184.4 of the Code because there are no renewal provisions for its implementation.

[212] I must, however, observe that I find it troubling in this case that during the currency of the first judicial authorization issued pursuant to s. 186 (which I will later discuss) the police contemplated the use of s. 184.4 a second time to intercept the communications of persons not identified in the s. 186 authorization. While the investigators determined that there was insufficient evidence of a connection between the alleged victims and perpetrators to engage s. 184.4, it remains disturbing that they contemplated its use when the alleged kidnapping had been unsolved for a number of days and a very broad judicial authorization was allowing the interception of not only the communications of the alleged suspects but also many others, including even the extended family of the alleged victims.

[213] In my view, the fact that the police considered the use of s. 184.4 of the Code either to complement or supplement a subsisting s. 186 judicial authorization highlights concerns of the lack of oversight and accountability inherent in s. 184.4 that I will later discuss.

(e)

Mandates that notification be given to the persons whose communications have been intercepted

[214] Section 184.4 of the Code has no notification requirements. Although the Crown submits that in most cases where s. 184.4 is implemented the persons whose communications have been intercepted will receive de facto notification by way of the prosecution of the underlying offence, that submission fails to recognize that the communications of persons other than the alleged perpetrator may have been intercepted. It also fails to address situations where, for whatever reason, the police may have erred in their assessment of the need to intercept private communications, intercepted more communications than those to which they were lawfully entitled or over a longer period of time, or those that were intercepted under circumstances which did not result in a prosecution.

[215] In any or all of those circumstances, the police would be answerable to no one. Further, the fact that there is no obligation to disclose surreptitious invasions of privacy to those persons whose communications have been intercepted removes an important safeguard to the potential abuse of power that can arise without accountability.

[216] This case is illustrative of some of those concerns, especially given the broad interpretation given to the concept of “victim of the harm” in ss. 184.4(c) applied by the police and urged upon me by the Crown that I have previously discussed and rejected as a reasonable interpretation. To this day, many of the persons whose communications were intercepted by the police are unlikely to know of that invasion of their privacy. That circumstance is exacerbated by the police having engaged in the automatic monitoring of all calls to the telephones they had identified as being appropriate for interception. Any discovery by third parties of the police having intercepted their private communications would be fortuitous.

[217] Requirements to notify persons whose private communications have been intercepted of the fact of that interception afford an important constitutional and accountability safeguard to the potential abuse of state power in invading the privacy of its citizens.

[218] The interception of private communications in exigent circumstances is not like situations of hot pursuit, entry into a dwelling place to respond to a 9‑1‑1 call, or searches incidental to arrest when pubic safety is engaged. In those circumstances, the person who has been the subject of a search will immediately be aware of both the circumstances and consequences of police action. The invasion of privacy by interception of private communications will, however, be undetectable, unknown and undiscoverable by those targeted unless the state seeks to rely on the results of its intentionally secretive activities in a subsequent prosecution.

[219] I am accordingly satisfied that the failure of s. 184.4 of the Code to provide notification of surreptitious interception of private communications to those persons whose communications are intercepted is a serious impediment to the constitutional validity of s. 184.4.

(f)

Requires the preparation of a comprehensive report to Parliament of all electronic surveillance

[220] Not all wiretap provisions of the Code mandate the preparation of a report to Parliament by the Solicitor General advising of the extent to which electronic surveillance has been utilized by the state.

[221] Significantly, however, s. 195(1) of the Code does require that reports of judicial authorizations granted under either s. 186 or s. 188.1 of the Code be sent to Parliament. Since it will generally be those alternative provisions of Part VI that would be invoked by the state to intercept private communications following the implementation of s. 184.4 of the Code by a peace officer, it is surprising that Parliament should require reports in judicially authorized circumstances but not when there is no requirement for judicial oversight.

[222] If the intention of Parliament in requiring the provision of reports is to oversee the frequency and circumstances of the interception of private communications by the police, the failure to provide a similar reporting requirement under s. 184.4 of the Code removes the potential for that oversight. As with the failure to require notification of those intercepted of the fact of an interception, the lack of any reporting requirement undermines both constitutionality and police accountability.

(g)

Engages the Attorney General of the province in which the application for an authorization is brought or the Solicitor
General of Canada (or duly appointed agents)

[223] Due to the exigency considerations at the heart of s. 184.4 of the Code, the constitutional safeguard of a requirement to engage senior government officials who act independently of the police may not be practical while the exigent circumstances are manifest. However, as with the failure to provide any mechanism for reporting upon the extent of the utilization of s. 184.4 to Parliament after the emergency no longer exists, the lack of any requirement to account to senior, independent law enforcement officials undermines police accountability.

(h)

Provides that authorizations may only issue on the order of a Superior Court Judge

[224] The necessity for prior judicial authorization for the interception of private communications was the defining constitutional safeguard in Duarte.

[225] La Forest J. analyzed the importance of the insertion of a neutral judicial officer to prevent arbitrary law enforcement and the potential abuse of constitutionally protected rights in the following terms (at 11‑13):

The rationale for regulating the power of the state to record communications that their originator expects will not be intercepted by anyone other than the person intended by the originator to receive it (see definition section of Part IV.1 of the Code [s. 178.1, definition "private communication"]) has nothing to do with protecting individuals from the threat that their interlocutors will divulge communications that are meant to be private. No set of laws could immunize us from that risk. Rather, the regulation of electronic surveillance protects us from a risk of a different order, i.e., not the risk that someone will repeat our words but the much more insidious danger inherent in allowing the state, in its unfettered discretion, to record and transmit our words.

The reason for this protection is the realization that if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance. The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communications will remain private. A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning. As Douglas J., dissenting in United States v. White, supra, put it, at p. 756: "Electronic surveillance is the greatest leveler of human privacy ever known." If the state may arbitrarily record and transmit our private communications, it is no longer possible to strike an appropriate balance between the right of the individual to be left alone and the right of the state to intrude on privacy in the furtherance of its goals, notably the need to investigate and combat crime.

This is not to deny that it is of vital importance that law enforcement agencies be able to employ electronic surveillance in their investigation of crime. Electronic surveillance plays an indispensable role in the detection of sophisticated criminal enterprises. Its utility in the investigation of drug related crimes, for example, has been proven time and again. But, for the reasons I have touched on, it is unacceptable in a free society that the agencies of the state be free to use this technology at their sole discretion. The threat this would pose to privacy is wholly unacceptable.

It thus becomes necessary to strike a reasonable balance between the right of individuals to be left alone and the right of the state to intrude on privacy in the furtherance of its responsibilities for law enforcement. Parliament has attempted to do this by enacting Part IV.1 of the Code. An examination of Part IV.1 reveals that Parliament has sought to reconcile these competing interests by providing that the police must always seek prior judicial authorization before using electronic surveillance. Only a superior court judge can authorize electronic surveillance, and the legislative scheme sets a high standard for obtaining these authorizations. A judge must be satisfied that other investigative methods would fail, or have little likelihood of success, and that the granting of the authorization is in the best interest of the administration of justice. I share the approach of Martin J.A. in R. v. Finlay, supra, at p. 70 et seq. C.C.C., p. 554 et seq. D.L.R., that this latter prerequisite imports as a minimum requirement that 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. It can, I think, be seen that the provisions and safeguards of Part IV.1 of the Code have been designed to prevent the agencies of the state from intercepting private communications on the basis of mere suspicion.

In proceeding in this fashion, Parliament has, in my view, succeeded in striking an appropriate balance. It meets the high standard of the Charter which guarantees the right to be secure against unreasonable search and seizure by subjecting the power of the state to record our private communications to external restraint and requiring it to be justified by application of an objective criterion. The reason this represents an acceptable balance is that the imposition of an external and objective criterion affords a measure of protection to any citizen whose private communications have been intercepted. It becomes possible for the individual to call the state to account if he can establish that a given interception was not authorized in accordance with the requisite standard. If privacy may be defined as the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself, a reasonable expectation of privacy would seem to demand that an individual may proceed on the assumption that the state may only violate this right by recording private communications on a clandestine basis when it has established to the satisfaction of a detached judicial officer that an offence has been or is being committed and that interception of private communications stands to afford evidence of the offence.

This, it seems to me, flows inexorably from the principles enunciated in Hunter v. Southam Inc., supra. In that case, this court (p. 106 C.C.C., p. 650 D.L.R.) made the important point that the "assessment of the constitutionality of a search and seizure ... must focus on its 'reasonable' or 'unreasonable' impact on the subject of the search or the seizure, and not simply on its rationality in furthering some valid government objective." Applying this standard, it is fair to conclude that if the surreptitious recording of private communications is a search and seizure within the meaning of s. 8 of the Charter, it is because the law recognizes that a person's privacy is intruded on in an unreasonable manner whenever the state, without a prior showing of reasonable cause before a neutral judicial officer, arrogates to itself the right surreptitiously to record communications that the originator expects will not be intercepted by anyone other than the person intended by its originator to receive them, to use the language of the Code.

[My emphasis.]

[226] Section 184.4 of the Code obviously fails to provide any constitutional safeguard arising from an independent assessment of the reasonableness or otherwise of a peace officer’s implementation of the section to intercept private communications. As with the lack of other constraints on the use of state power to invade privacy, the reason for that lack of judicial accountability arises from the exigency of the situation faced by the officer.

[227] I have, in part, previously addressed these concerns when interpreting ss. 184.4(a) by determining that to preclude arbitrary law enforcement, s. 184.4 must be interpreted and implemented in accordance with the constitutionally compliant implementation process that I have discussed at length in this ruling and the particulars of which I have detailed in para. 166. If the peace officer complies with that obligation, the application of the safeguard of judicial neutrality will only be delayed. It will not be entirely removed in those cases where the implementation of s. 184.4 is resolved by either the granting or denial of an authorization under another section of Part VI of the Code.

[228] If, however, for some reason, the exigent situation that gave rise to the implementation of s. 184.4 resolves before an application for an authorization under another section of Part VI is considered by a judge, there will be no opportunity for independent assessment of the actions of the police. The evidence adduced by the Crown on this application establishes that such a result may not be uncommon depending on the length of time that is required in the circumstances to obtain a judicial authorization. I must, however, also note that the data filed is of dubious value because of the many varying implementation policies followed by different police forces in Canada and the fact that to my knowledge few, if any, follow the constitutionally compliant implementation process that I have formulated. Doing so will almost certainly reduce the number of instances where the police actions are not subject to judicial scrutiny.

[229] If such situations of early resolution do, however, occur, I am satisfied that a requirement for the giving of notice to those whose communications were intercepted would often engage ex post facto scrutiny by an independent judicial officer at the request of the person whose communications were intercepted. While the possibility of there being no judicial scrutiny of police actions in some cases is a serious constitutional impediment, I do not see how Parliament’s legitimate goal of preventing serious harm in exigent circumstances can be attained without such a possibility. The key to constitutional validity is, however, the minimization of any lack of judicial scrutiny by ensuring that the delay in applying for a judicial authorization once s. 184.4 of the Code is implemented is no greater than inherently necessary to the exigency.

[230] In addition, it seems to me that if, in addition to notice provisions, s. 184.4 of the Code included at least some of the other accountability safeguards considered in Duarte, the possible lack of judicial scrutiny in a very limited number of cases would be significantly ameliorated.

[231] I will return to my conclusions with respect to the constitutional validity of s. 184.4 of the Code in respect of the s. 8 Charter issues after addressing the one over-breadth issue raised by the accused under s. 7 and s. 11(d) of the Charter that I have not already addressed in either the interpretation of s. 184.4 of the Code or in my consideration of Duarte.

[232] That issue concerns the very broad class of individuals (statutorily defined “peace officers”) who are entitled to use s. 184.4 of the Code to intercept private communications without approval or oversight.

(4)

Is the definition of “peace officer” in s. 184.4 of the Code so broad that the section is unconstitutional?

[233] Section 2 of the Code provides a very wide definition of the term “peace officer”. It includes:

(a) a mayor, warden, reeve, sheriff, deputy sheriff, sheriff’s officer and justice of the peace,

(b) a member of the Correctional Service of Canada who is designated as a peace officer pursuant to Part I of the Corrections and Conditional Release Act, and a warden, deputy warden, instructor, keeper, jailer, guard and any other officer or permanent employee of a prison other than a penitentiary as defined in Part I of the Corrections and Conditional Release Act,

(c) a police officer, police constable, bailiff, constable, or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process,

(d) an officer within the meaning of the Customs Act, the Excise Act or the Excise Act, 2001, or a person having the powers of such an officer, when performing any duty in the administration of any of those Acts,

(d.1) an officer authorized under subsection 138(1) of the Immigration and Refugee Protection Act,

(e) a person designated as a fishery guardian under the Fisheries Act when performing any duties or functions under that Act and a person designated as a fishery officer under the Fisheries Act when performing any duties or functions under that Act or the Coastal Fisheries Protection Act,

(f) the pilot in command of an aircraft

(i) registered in Canada under regulations made under the Aeronautics Act, or

(ii) leased without crew and operated by a person who is qualified under regulations made under the Aeronautics Act to be registered as owner of an aircraft registered in Canada under those regulations,

while the aircraft is in flight, and

(g) officers and non-commissioned members of the Canadian Forces who are

(i) appointed for the purposes of section 156 of the National Defence Act, or

(ii) employed on duties that the Governor in Council, in regulations made under the National Defence Act for the purposes of this paragraph, has prescribed to be of such a kind as to necessitate that the officers and non-commissioned members performing them have the powers of peace officers;

[234] It is difficult to envisage the type of exigency that would require the implementation of s. 184.4 of the Code by many of those who are defined as peace officers. Without denigrating from the importance of the duties that each of those persons might be called upon to perform in their roles as peace officers, it is in my view highly unlikely that Parliament ever anticipated that any persons other than trained police officers actively engaged in the investigation of crimes that have the potential to cause serious harm to persons or property would invoke the provisions of s. 184.4 to invade privacy without judicial oversight.

[235] Perhaps even more surprising is the lack of any requirement in s. 184.4 of the Code mandating supervision of individual peace officers who are entitled to use such broad invasive powers. That such lack of accountability is unacceptable is, in fact, recognized by the many police forces who filed evidence on this application that as a matter of policy require very senior officers in their respective forces to approve the use of s. 184.4 of the Code.

[236] However, although the evidence from those police forces that was adduced on this application tends to indicate the responsible use of the powers of s. 184.4 by senior officers in those forces, the fact remains that, as enacted, s. 184.4 of the Code does not mandate internal approval or supervision.

[237] Such lack of mandatory internal approval or supervision coupled with the lack of any mandatory reporting obligations to any senior law enforcement official in the Provincial or Federal Governments (as addressed in Duarte) makes it impossible to know with any certainly the extent to which s. 184.4 may have been used in the past or in what circumstances by forces, agencies, or individual “peace officers” other than those that filed evidence on this hearing.

[238] I also contrast the provisions of s. 184.4 of the Code concerning the broad class of individuals who may invoke its powers with those who may apply for an emergency judicial authorization to intercept private communications under s. 188(1) of the Code. That section permits only a peace officer “designated in writing” by the Minister of Public Safety and Emergency Preparedness or the Attorney General of a Province to make such emergency applications.

(5)

Conclusion concerning the constitutional validity of s. 184.4 of the Code

[239] After considering all of the evidence adduced on this hearing in the context of my findings concerning the intentions and objectives of Parliament in enacting s. 184.4 of the Code and my consideration of all of the submissions of all counsel, I have concluded that s. 184.4 as enacted breaches s. 52 of the Constitution Act, 1982 by reason of its contravention of the fundamental freedom to be free from unreasonable search and seizure guaranteed by s. 8 of the Charter.

[240] I reach that conclusion for the following reasons:

1. I have determined from my review of all of the legislative material filed by the Crown on this application that Parliament’s intention in enacting s. 184.4 of the Code was to allow a peace officer facing exigent circumstances of apprehended serious harm to persons or property to attempt to prevent that harm by intercepting communications without judicial authorization if the officer apprehended both that the exigency and potential for serious harm to persons or property were such that the lapse of time required to obtain judicial authorization could increase the risk of the occurrence of the apprehended harm.

2. I have determined that the provisions of s. 184.4 of the Code are capable of interpretation in such a way that they are not constitutionally vague so as to permit the state to interfere with fundamental freedoms in indefinite or unpredictable circumstances. That determination is, however, dependent upon:

(a) the interpretation of an “unlawful act” as being limited to offences enumerated in s. 183 of the Code;

(b) an interpretation of ss. 184.4(c) of the Code that limits the communications that can be intercepted to those between the “perpetrator” of the anticipated serious harm and the actual “victim” or “intended victim” of that harm.

(c) an interpretation that requires peace officers to follow the constitutionally compliant process I have formulated, so that upon determining that the urgency of the situation is such that a judicial authorization could not, with reasonable diligence, be obtained before the harm sought to be prevented could occur a peace officer must:

(i) implement s. 184.4 of the Code to intercept only those private communications that may be lawfully intercepted pursuant to ss. 184.4(c); and

(ii) immediately, and with the least delay possible in the circumstances, also take all steps necessary to obtain a judicial authorization under Part VI of the Code.

3. Although those interpretive considerations result in a determination that s. 184.4 of the Code as enacted is not so vague that it allows arbitrary law enforcement, I find that even if peace officers do act under s. 184.4 within the bounds of those interpretive constraints, the section does not meet constitutional standards for the interception of private communications even in exigent circumstances.

4. That is so primarily because of the virtually total absence of the constitutional safeguards necessary to balance the interests of the state in preventing harm and prosecuting crime with its obligation to protect s. 8 Charter rights as discussed in and established by Duarte.

5. While the existence of exigent circumstances and the need to protect citizens and their property from the infliction of serious harm must allow the state greater leeway in the invasion of privacy rights than is normally the case, exigency cannot be used to excuse the elimination of those constitutional safeguards that are not impacted by the imperatives of an emergency.

6. Of particular concern with respect to the absence of such constitutional safeguards under s. 184.4 are:

(a) The lack of any requirement for notice to those persons whose communications have been intercepted. The provision of such notice at some time after the interceptions have been made and the exigent circumstances are at an end and once any ongoing investigation of the offence has concluded would not in any way prevent the police from acting to attempt to prevent the anticipated harm and would provide a mechanism for review and would aid in ensuring police accountability; and

(b) The lack of any requirement by a peace officer who may use s. 184.4 of the Code to report to the executive branch of government charged with the responsibility for law enforcement and civilian oversight of police actions or to Parliament. The provision of such a report at some time after the conclusion of the interception and the conclusion of any ensuing investigation would not in any way prevent the police from acting to attempt to prevent the anticipated harm and would provide an ongoing supervisory power of review and would further help to ensure police accountability.

[241] I do not find that s. 184.4 of the Code breaches either s. 7 or s. 11(d) of the Charter because the interpretation of s. 184.4 that I have decided must apply to its use answers concerns raised respecting alleged constitutional vagueness and over-breadth other than concerns relating to the broad definition of “peace officer”.

[242] As to that issue, while I remain concerned about the scope of that definition and am of the view that it could be significantly more restrictive without interfering with Parliament’s legitimate intentions in enacting s. 184.4, I cannot on the evidence adduced on this application determine whether any particular person, officer, or class of persons now included within the statutory definition of “peace officer” in s. 2 of the Code should be excluded. That is an issue that should be addressed by Parliament.

(6)

Application of s. 1 of the Charter

[243] My determination that s. 184.4 of the Code as enacted is not constitutionally valid requires that I next proceed to determine whether that constitutional invalidity is permissible by reason of the application of the provisions of s. 1 of the Charter.

[244] In R. v. Oakes, [1986] 1 S.C.R. 103, 24 C.C.C. (3d) 321 [Oakes], the Supreme Court of Canada enunciated the well known two‑stage analysis for the determination of whether otherwise unconstitutional legislation is justifiable under s. 1 of the Charter. The questions that must be answered are:

1. Whether the objective that the limit on a protected freedom that the legislation is designed to serve must be sufficiently important to override a constitutionally protected right.

2. Whether the party invoking s. 1 (in this case the Crown) has established that the means chosen to obtain the objective are reasonably and demonstrably justified in a free and democratic society.

[245] The second inquiry requires that the Court be satisfied of three things, those being that:

1. The measures designed to meet the legislative objective (in this case, s. 184.4 of the Code) must be rationally connected to the objective.

2. The means used should impair as little as possible the right or freedom in question.

3. There must be proportionality between the effect of the measures which limit the Charter right or freedom and the legislative objective of the limit on those rights. This involves balancing the invasion of rights guaranteed by the Charter against the objective to which the limitation of those rights is directed.

[246] I have previously determined that Parliament’s intention in enacting s. 184.4 of the Code was to allow a peace officer facing exigent circumstances of apprehended serious harm to persons or property to attempt to prevent that harm by intercepting communications without judicial authorization if the officer apprehended that both the exigency and potential for serious harm were such that the lapse of time required to obtain judicial authorization could increase the risk of the occurrence of the apprehended harm.

[247] There can, in my view, be no serious doubt that the objective of preventing serious harm to innocent citizens or their property in truly exigent circumstances is sufficiently important to override constitutionally protected privacy rights of those who would do such harm. I refer specifically to Godoy, Feeney and Mann as well as many other cases, including child protection cases where the prevention of harm in exigent circumstances has been determined to be of sufficient concern to require that constitutionally protected rights give way to such objectives.

[248] I also have no doubt that the measures designed to meet the objective of attempting to prevent harm in exigent circumstances are rationally connected to that objective. The evidence led by the Crown on this hearing establishes to my satisfaction that the immediate interception of communications in circumstances of rapidly unfolding events in hostage taking and kidnapping situations may assist the police in locating either the potential victims of the serious harm or the location of those who would perpetrate such harm. In today’s world where the use of cellular telephone communications in the commission of crimes is rampant, it will often be the case that the interception of the communications of those seeking to cause harm will be the best avenue of investigation available to the police.

[249] I am also satisfied that if the interception of communications could not occur until such time as judicial authorization was obtained, there is a risk that delay inherent to the judicial authorization process might hamper the ability of the police to prevent the serious harm.

[250] I must, however note, that I do not reach that conclusion on the basis of the evidence of the police in this case about the length of time necessary to obtain judicial authorization. As I will later discuss, I find that evidence to be unreliable in that it was based in whole or in part upon ex post facto rationalization, lack of knowledge about available judicial resources, lack of appreciation of the provisions, availability and utility of other provisions of Part VI of the Code in exigent circumstances, and also a misapprehension of the extent of information required to obtain judicial authorizations under such alternate provisions.

[251] Rather, I reach the conclusion that there is a risk that delay inherent to the judicial authorization process might hamper the ability of the police to prevent serious harm in truly exigent circumstances because, by the very nature of exigent circumstances it is not possible to determine whether any delay might preclude the prevention of harm or increase the risk of it occurring. The harm sought to be prevented could result during the time needed to locate a judge before whom an application could be made or while the application was being made.

[252] I thus have no hesitation in finding that the measures designed to meet the objective of attempting to prevent harm in exigent circumstances without the potential delay that could arise from a requirement to first obtain judicial authorization are rationally connected to that objective.

[253] I do not, however, reach the same conclusion with respect to the minimal impairment or proportionality tests under Oakes.

[254] I accept the Crown’s submission that the objective of preventing serious harm in exigent circumstances may be entitled to greater leeway due to the fact that the type of emergency addressed by s. 184.4 of the Code should generally be short-lived and that Parliament’s solutions should be given significant deference.

[255] The fact remains, however, remains that the solutions identified by Parliament in s. 184.4 fail to include any safeguards that could appropriately balance the invasion of privacy countenanced by the implementation of the section while still not interfering in any way with its objectives.

[256] I refer specifically to the absence of any provisions requiring the giving of notice to those whose communications have been intercepted and the absence of any provisions requiring the peace officer or police force implementing the section to report to any civilian body concerning the number of times the section has been used or the circumstances of that use. Neither the giving of notice nor an obligation to report upon the use of the section would impact in any way upon the ability of the police to act in exigent circumstances. On the other hand, the inclusion of one or preferably both of such notice and reporting provisions would dramatically impact upon police accountability and compliance with the constitutional parameters established by Duarte.

[257] I also note, as I have previously, that if s. 184.4 of the Code is not interpreted and implemented in the way that I have determined to be necessary to ensure its constitutionality, it would also fail to meet the minimal impairment test.

[258] I accordingly conclude that the constitutional invalidity of s. 184.4 of the Code by reason of its contravention of s. 8 of the Charter cannot be justified under s. 1 of the Charter.

[259] The accused are accordingly entitled to a declaration that s. 184.4 as enacted is constitutionally invalid legislation.

[260] That determination requires that I also consider the appropriate constitutional remedy in the circumstances of this case.

(7)

What is the appropriate constitutional remedy?

[261] In Schachter v. Canada, [1992] 2 S.C.R. 679 at 717‑19, 93 D.L.R. (4th) 1 [Schachter], Lamer C.J., for the majority, summarized the means available to remedy a breach of s. 52 of the Constitution Act, 1982. In doing so, he said:

It is valuable to summarize the above propositions with respect to the operation of s. 52 of the Constitution Act, 1982 before turning to the question of the independent availability of remedies pursuant to s. 24(1) of the Charter. Section 52 is engaged when a law is itself held to be unconstitutional, as opposed to simply a particular action taken under it. Once s. 52 is engaged, three questions must be answered. First, what is the extent of the inconsistency? Second, can that inconsistency be dealt with alone, by way of severance or reading in, or are other parts of the legislation inextricably linked to it? Third, should the declaration of invalidity be temporarily suspended? The factors to be considered can be summarized as follows:

(i) The Extent of the Inconsistency

The extent of the inconsistency should be defined:

A. broadly where the legislation in question fails the first branch of the Oakes test in that its purpose is held not to be sufficiently pressing or substantial to justify infringing a Charter right or, indeed, if the purpose is itself held to be unconstitutional -- perhaps the legislation in its entirety;

B. more narrowly where the purpose is held to be sufficiently pressing and substantial, but the legislation fails the first element of the proportionality branch of the Oakes test in that the means used to achieve that purpose are held not to be rationally connected to it -- generally limited to the particular portion which fails the rational connection test; or,

C. flexibly where the legislation fails the second or third element of the proportionality branch of the Oakes test

(ii) Severance/Reading In

Severance or reading in will be warranted only in the clearest of cases, that is, where each of the following criteria is met:

A. the legislative objective is obvious, or it is revealed through the evidence offered pursuant to the failed s. 1 argument, and severance or reading in would further that objective, or constitute a lesser interference with that objective than would striking down;

B. the choice of means used by the legislature to further that objective is not so unequivocal that severance/reading in would constitute an unacceptable intrusion into the legislative domain; and,

C. severance or reading in would not involve an intrusion into legislative budgetary decisions so substantial as to change the nature of the legislative scheme in question.

(iii) Temporarily Suspending the Declaration of Invalidity

Temporarily suspending the declaration of invalidity to give Parliament or the provincial legislature in question an opportunity to bring the impugned legislation or legislative provision into line with its constitutional obligations will be warranted even where striking down has been deemed the most appropriate option on the basis of one of the above criteria if:

A. striking down the legislation without enacting something in its place would pose a danger to the public;

B. striking down the legislation without enacting something in its place would threaten the rule of law; or,

C. the legislation was deemed unconstitutional because of underinclusiveness rather than overbreadth, and therefore striking down the legislation would result in the deprivation of benefits from deserving persons without thereby benefitting the individual whose rights have been violated.

I should emphasize before I move on that the above propositions are intended as guidelines to assist courts in determining what action under s. 52 is most appropriate in a given case, not as hard and fast rules to be applied regardless of factual context.

[262] I have determined that s. 184.4 of the Code is constitutionally invalid under the minimal impairment and proportionality elements of the Oakes test.

[263] The Crown submitted that if I determined that s. 184.4 was constitutionally invalid due to lack of notice and/or accountability provisions under a Duarte analysis, I should then read into s. 184.4 those provisions I consider necessary to cure those constitutional deficiencies.

[264] That option is attractive and I would have been prepared to consider such a remedy were it not for the many issues in addition to lack of notice and accountability that exist in this case, as well as the interplay between s. 184.4 and other provisions of Part VI of the Code.

[265] In determining that s. 184.4 of the Code as enacted is constitutionally invalid under s. 8 of the Charter by reason of its lack of notice and accountability safeguards, I did not also find invalidity in relation to other concerns which do not reach the level of constitutional vagueness or over-breadth but which I believe should still be addressed to achieve full constitutional compliance. Those include:

1. the vast number of offences in s. 183 of the Code which could in theory engage the use of s. 184.4 but which do not appear to be offences that could give rise to the type of serious harm contemplated by Parliament;

2. the definition of “peace officer” in s. 2 of the Code which confers enormous power to invade privacy under s. 184.4 on such a broad and diverse class of individuals in addition to police officers engaged in the prevention and investigation of serious crimes which have the potential to result in serious harm to persons or property; and

3. the lack of any statutory requirement for institutional supervision of any peace officer invoking s. 184.4 of the Code by superior officers or officials.

[266] In my view, it is Parliament that must consider such concerns in light of whatever remedial action Parliament may consider appropriate to rectify those specific constitutional impediments to the validity of s. 184.4 of the Code under s. 8 of the Charter (lack of any notice or accountability) I have identified.

[267] Further, the specific notice or accountability provisions that Parliament may choose to add in curing the constitutional invalidity of s. 184.4 may also impact other provisions of Part VI in a way that I cannot now know and should not risk.

[268] I have accordingly determined that in the circumstances any “reading in” in which I might engage (other than by way of interpretation to achieve constitutional compliance with s. 7 of the Charter) would constitute an unacceptable intrusion into Parliament’s legislative domain.

[269] It would be wrong for me to attempt to identify exactly what notice provisions should be enacted or what accountability provisions should be chosen. It would also for wrong for me to attempt to classify those specific offences that might possibly require the implementation of s. 184.4, dictate to Parliament those persons or classes of persons who should reasonably be empowered to implement s. 184.4, or mandate a internal supervisory regime that I believe might appropriately address the concerns I have raised with respect to internal institutional accountability.

[270] All of those issues are inter-related and the appropriate forum for the resolution of such concerns must be Parliament which can resolve the issues in the context of the observations I have made, but also in the context of the specific harms it seeks to address and prevent and its determination of the appropriate way to achieve its goals within the constitutional parameters and conditions that I have identified.

[271] I also, however, recognize from the material filed by the Crown emanating from the various police organizations on whose behalf affidavits were filed and from the testimony of those senior R.C.M.P officers who testified on this hearing, that to make the declaration of constitutional invalidity that I have made without providing sufficient time for Parliament to respond to the constitutional impediments I have identified could seriously impede law enforcement and the prevention of harm before Parliament could act.

[272] Such a consequence would be as unacceptable to this Court as it would be to the police and to society as a whole.

[273] I have accordingly determined that the appropriate constitutional remedy is to stay the declaration of constitutional invalidity I have made for the longer of either 18 months or 30 days after the charges that are the subject of this proceeding have been resolved in this Court. The Attorney General for Canada shall also have liberty to apply to extend that stay period if necessary to ensure that Parliament can react appropriately to this declaration of constitutional invalidity.

[274] I wish to make it as clear as possible that in granting that stay for that very lengthy time I am doing so on the basis that my interpretation of the provisions of s. 184.4 of the Code will be observed by peace officers who implement that section after the publication of this ruling. Doing so will ameliorate the constitutional deficiencies I have identified to a sufficient extent that a stay of the declaration of constitutional invalidity is warranted.

(8)

Constitutional Summary

[275] In summary:

1. Section 184.4 of the Code as enacted breaches s. 52 of the Constitution Act, 1982 by reason of its contravention of the fundamental freedom to be free from unreasonable search and seizure guaranteed by s. 8 of the Charter and is not saved by application of the provisions of s. 1 of the Charter.

2. I declare that s. 184.4 of the Code as enacted is constitutionally invalid legislation.

3. That declaration of constitutional invalidity shall be stayed for the longer of either 18 months or 30 days after the charges that are the subject of this proceeding have been resolved in this Court.

4. The Attorney General for Canada shall have liberty to apply to extend that stay period.

5. In granting that stay for that very lengthy time, I expect that my interpretation of the provisions of s. 184.4 of the Code will be observed by peace officers who implement that section after the publication of this ruling.

6. That interpretation requires that:

(a) the “unlawful acts” to which s. 184.4 of the Code may apply are limited to the offences enumerated in s. 183 of the Code;

(b) the communications that can be intercepted an pursuant to ss. 184.4(c) of the Code are those between the “perpetrator” (including any aiders or abettors) of the anticipated serious harm and the actual “victim” or “intended victim” of that harm; and

(c) any peace officer who implements s. 184.4 of the Code must, upon determining that the urgency of the situation is such that a judicial authorization could not, with reasonable diligence, be obtained before the harm sought to be prevented could occur:

(i) intercept only those private communications that may be lawfully intercepted pursuant to ss. 184.4(c); and

(ii) immediately, and with the least delay possible in the circumstances, also take all steps necessary to obtain a judicial authorization under Part VI of the Code.

B. THE IMPLEMENTATION S. 184.4 OF THE CRIMINAL CODE

[276] One result of my ruling that s. 184.4 of the Code is unconstitutional is that all the communications intercepted pursuant to its implementation by the police on February 25 and 26, 2006 before Authorization P‑12 was issued were not authorized by law.

[277] The fact remains, however, that my ruling that s. 184.4 as enacted contravenes s. 8 of the Charter is an ex post facto determination.

[278] The R.C.M.P. did not have the benefit of my observations or ruling when faced with the exigencies of the situation that led to their use of s. 184.4 in this case. Rather, they relied on a section of the Code that had been in existence for approximately 13 years and in respect of the use of which the R.C.M.P. in British Columbia had developed a detailed implementation policy.

[279] In those circumstances, notwithstanding my finding that s. 184.4 is constitutionally invalid, the admissibility of the evidence obtained as a consequence of the implementation of that unconstitutional legislation will ultimately have to be considered under s. 24 of the Charter.

[280] In addition, given the nature of the intercepts upon which the Crown seeks to rely (i.e., communications from and between individuals other than the accused that were intercepted pursuant to s. 184.4 of the Code), questions concerning the admissibility of such communications at trial will also have to be addressed under common law rules of evidence.

[281] It is accordingly necessary for me to now address the manner in which the R.C.M.P. implemented s. 184.4 because that consideration will determine the extent to which the R.C.M.P. complied with s. 184.4 as enacted and will also inform future admissibility debates.

[282] Counsel for the accused made many submissions about why the police in this case failed to implement s. 184.4 of the Code in accordance with its terms. In large measure those submissions were dependent upon their view of the correct interpretation to be placed upon s. 184.4 for constitutional purposes. Similarly Crown Counsel’s submissions concerning the manner or implementation also touched on issues concerning constitutional interpretation.

[283] Having considered the arguments of both the accused and the Crown and bearing in mind also the determinations of law and fact I have made in the constitutional analysis, I have determined that the implementation issues that I must still decide can best be addressed by answering the following questions:

1. Were the circumstances known to the police on Saturday, February 25, 2006 sufficiently exigent to warrant the use of s. 184.4 of the Code to intercept private communications without prior judicial authorization?

2. Did Sergeant Brown comply with the provisions of s. 184.4 when he implemented its use?

3. Did the police comply with the provisions of s. 184.4 before obtaining Authorization P‑12 at 7:20 p.m. on Sunday, February 26, 2006?

4. Were the communications intercepted pursuant to s. 184.4 prior to the issuance of Authorization P‑12 validly intercepted under the provisions of ss. 184.4(c)?

5. When did the interception of communications under s. 184.4 of the Code terminate?

[284] I will now answer each of those questions.

(1)

Did exigent circumstances warrant the use of s. 184.4 on February 25, 2006?

[285] The accused submit that the concerns the R.C.M.P ought to have had about Mary Li’s credibility and the possibility that Peter Li was attempting to flee Canada to avoid prosecution for serious drug charges were such that the police should have investigated further before taking the highly invasive step of implementing s. 184.4 of the Code to intercept private communications.

[286] They also submit that alternate means of investigation were available and should have been implemented or at least fully explored before resorting to s. 184.4. In part, those submissions focussed on the proposition that alternate provisions of Part VI of the Code should have been resorted to before s. 184.4 was engaged.

[287] I will consider the submissions concerning the potential efficacy and availability of alternate provisions of Part VI when determining whether Sergeant Brown complied with s. 184.4 of the Code after deciding to implement its use.

[288] Concerning the exigency question, however, I have no hesitation in saying that the circumstances faced by the police in the evening of Saturday, February 25, 2006, were such that they had to engage extraordinary investigative and preventative steps in a situation that carried a very real prospect of serious harm to at least one and as many as three victims.

[289] In reaching that conclusion, I first observe that 20/20 hindsight is not a luxury afforded to the police in emergency situations. The police have a duty to protect life and to prevent crime. They owe that duty not only to society and all law‑abiding citizens, but also to those individuals who may operate in the criminal underworld. The fact that a victim of serious crime may him or herself also engage in criminal activity does not allow the police to take less interest in the welfare of that victim. In this case all of the police witnesses involved in the determination to implement s. 184.4 not only recognized that fact but acted upon it.

[290] Therefore, while Sergeant Brown, Corporal McDonald and Corporal Chung were alive to Peter Li’s possible motives to flee and had an obligation to investigate that possibility, they also had an obligation to take seriously any threat to his life or well-being as well as that of Jennifer Pan and Xiao Chen from those who might wish to harm them for whatever reason. In that regard, I appreciate and accept the evidence of the police officers who testified before me that there is an elevated potential for serious harm or death in drug‑related kidnappings.

[291] The evidence on this voir dire satisfies me that the concerns of the police with the disappearance of Peter Li being “more than a missing person” case were appropriately heightened when they were advised by Mary Li of the series of telephone calls from him at about 4:00 p.m. on Saturday, February 25, 2006.

[292] I find that Sergeant Brown acted entirely responsibly by having Corporal McDonald interview Mary Li to determine whether in his view the kidnapping threat was “legitimate”. Sergeant Brown neither under nor overreacted to Mary Li’s telephone calls; he did what a seasoned careful police officer would do. He waited for an independent assessment of the possible threat by an officer he trusted and then acted upon that assessment. Sergeant Brown was also careful in bringing Corporal Chung in to help assess the situation at hand and, with his underlying knowledge of Peter Li and his family, make enquiries of Mary Li as to possible motivation for a kidnapping and possible suspects.

[293] As I will also later discuss, I am satisfied that Sergeant Brown took appropriate action in seeking the advice of Staff Sergeant Rolfe and Sergeant LaPorte before requesting approval from Superintendent Schmietenknop for the implementation of s. 184.4 to attempt to locate Peter Li’s whereabouts to hopefully prevent harm to Peter Li and the others that were missing.

[294] I am also satisfied that Sergeant Brown would have been remiss in the performance of his duties if he had not taken Mary Li’s reports seriously, even in the circumstances of Corporal Chung’s expressed concerns about the possibility of her providing “cover” for flight by Peter Li to avoid prosecution.

[295] Objectively and verifiably: Peter Li had been missing for at least two days; he had missed an important meeting; his vehicle was not missing; and, his daughter, who was not someone who would normally involve the police in her affairs or that of her father, had come to the police on two occasions. She had also co-operated with them by enabling them to enter Peter Li’s apartment.

[296] While there remained the possibility that Mary Li was lying about Peter Li’s calls to ask for huge amounts of money, those assertions and her assertion that he had told her “his ghost would come back for revenge” if the money was not raised, required the police to treat the situation as a legitimate underworld kidnapping involving a risk of imminent and serious harm to the victims.

[297] That obligation was, in my view, encapsulated in Sergeant Brown’s relatively contemporaneous report of his determination to invoke s. 184.4. As noted, he wrote:

At 21:15 hours, Sgt. BROWN contacted Supt. SCHMEINTENKNOP by phone and obtained officer approval for an Emergency Authorization.

[My emphasis.]

[298] Sergeant Brown did not overstate the threat. Rather, he acted in response to his evaluation of the state of the investigation by those officers charged with the responsibility for briefing him so that he could direct the investigation. He then followed R.C.M.P. written policy in obtaining the required approval from Superintendent Schmietenknop.

[299] In summary, the entirety of the evidence on this voir dire satisfies me that as of approximately 9:00 p.m. on Saturday, February 25, 2006, the police in general and Sergeant Brown in particular were faced with precisely the type of exigent circumstances that Parliament had anticipated might require the implementation of s. 184.4 of the Code to attempt to prevent serious harm to potential victims of crime.

(2)

Did the police comply with the provisions of s. 184.4 when implementing its use?

[300] The accused submit that Sergeant Brown failed to properly consider the availability of other provisions of Part VI of the Code in implementing the use of s. 184.4 on Saturday, February 25, 2006. They say that in the circumstances, given the co-operation of Mary Li and Michael Li, he should have considered the use of a judicially authorized one party consent under s. 184(2) in conjunction with the telewarrant provisions of s. 184(3), rather than utilize s. 184.4.

[301] Alternatively, they say that Sergeant Brown should have proceeded with an emergency judicial authorization under s. 188 of the Code which, if issued, would be in effect for 36 hours during which the police could prepare a s. 186 authorization. They say that if Sergeant Brown had properly considered those alternatives, resort to s. 184.4 of the Code would have been unnecessary.

[302] I do not agree with either submission.

[303] As I indicated in my ruling on the constitutionality of s. 184.4 of the Code, I am satisfied that in truly exigent circumstances the use of s. 184.4 may be necessary to attempt to preclude the occurrence of the anticipated harm before any form of judicial authorization can be obtained.

[304] Although, as I will later discuss, I am satisfied that after the decision was made to invoke s. 184.4 the police did not act particularly expeditiously in obtaining Authorization P‑12, that did not occur because of direction by Sergeant Brown. Rather, it arose from the R.C.M.P.’s arbitrary interpretation of s. 184.4 in determining that it may be used to intercept private communications for at least 24 hours before judicial authorization is necessary.

[305] I find that Sergeant Brown acted reasonably in his initial determination to invoke s. 184.4 of the Code as an interim measure pending the obtaining of a judicial authorization under Part VI. Both objectively and subjectively he was faced with exigent circumstances with the potential for the infliction of serious harm upon possible victims of crime. He could not then have known when such harm might occur and specifically could not know whether it might occur while he sought an alternate judicial authorization.

[306] To now postulate that no harm would occur until the time had expired for the delivery of ransom funds ignores the fact that serious harm could also occur during the ransom delivery period. It ignores also the fact that the alleged victims could be held in a place different from where any ransom money might be delivered or taken. I will, however, have more to say about that possibility when discussing the third question I consider important to this implementation analysis.

[307] As to the submission that alternative judicial authorizations other than a s. 186 application ought to have been pursued, I have concluded that while a one party consent authorization might have been more readily and expeditiously available than an authorization under s. 188 or s. 186 of the Code, the evidence as a whole satisfies me that such is not necessarily the case. More importantly, a one party consent would not authorize the interception of communications between or amongst potential perpetrators of the harm to the victims that the police sought to prevent. In my view it would be wrong to engage in ex post facto analysis of the efficacy of any particular kind of intercept when examining the decisions made by Sergeant Brown and Corporal McDonald in exigent circumstances.

[308] I also find that Sergeant Brown acted reasonably in the circumstances in seeking advice from Staff Sergeant Rolfe as to the appropriateness of the use of s. 184.4 in an apprehended kidnapping situation, rather than consulting the R.C.M.P. E‑Division (British Columbia) Electronic Monitoring and Surveillance Manual or canvassing in more detail the other provisions of Part VI of the Code that he might have engaged.

[309] The evidence establishes that the Special “I” section of the R.C.M.P. in general, and Staff Sergeant Rolfe in particular, have far more expertise and experience in applying for wiretap authorizations under Part VI of the Code than even such experienced investigators as Sergeant Brown and Corporal McDonald. It seems to me that it was not only good practice but perhaps the best practice to call upon that expertise in exigent circumstances where any delay in the decision making process could have disastrous consequences.

[310] Having considered the totality of the evidence and the submissions of all counsel in the context of s. 184.4 as interpreted by me, I find that Sergeant Brown acted reasonably and diligently in his initial determination to invoke s. 184.4 of the Code to seek to prevent serious harm to three possible kidnap victims.

[311] As I will next discuss, however, that conclusion does not mean that the conduct of the police during the approximately 22 hours before Authorization P‑12 was granted also complied with the provisions of s. 184.4.

(3)

Did the police comply with the provisions of s. 184.4 before obtaining Authorization P‑12?

[312] I must at the outset of this discussion observe that in being critical (as I am about to be) of the manner in which the police acted after s. 184.4 of the Code was implemented by Sergeant Brown and Superintendent Schmietenknop, I do so in accordance with the interpretation of s. 184.4 that I have determined is essential to preclude a finding of constitutional vagueness.

[313] I recognize that my assessment is accordingly an ex post facto analysis of the conduct of the various police officers involved in the ongoing utilization of s. 184.4. In those circumstances I must specifically observe that I find no misconduct or any other form of bad faith on the part of any of those officers.

[314] I find they were acting in accordance with their honestly held assessment of the parameters of s. 184.4 and to the extent that I now find that some of their ongoing actions were outside those parameters, it must at all times be recalled they acted without the benefit of any prior judicial interpretation of those provisions.

[315] I am satisfied that the police failed to act expeditiously to obtain judicial authorization to validate the actions taken under s. 184.4 of the Code in the circumstances as they evolved because at no time did Sergeant Brown, Corporal McDonald, Staff Sergeant Rolfe, or Sergeant LaPorte consider whether the police had an obligation to limit the length of time under which they would be intercepting communications under s. 184.4 while pursuing a judicial authorization.

[316] That situation arose because all officers involved believed that once s. 184.4 was in use they were entitled to intercept communications under the powers granted by it for a minimum of 24 hours.

[317] That unfounded and arbitrary belief had its genesis in the R.C.M.P. E‑Division (British Columbia) Electronic Monitoring and Surveillance Manual that I have found cannot be supported by the interpretation of s. 184.4 that is required to prevent arbitrary law enforcement.

[318] Specifically, that manual advises the R.C.M.P’s designated approving officers (one of whom on February 25, 2006 was Superintendent Schmietenknop) to:

1. approve a s. 184.4 application “for an initial period of twenty-four (24) hours and continue to monitor”; and

2. “advise the member that the s. 184.4 authorization should be terminated as soon as is practicably possible”,

neither of which directions are objectionable when compared to the statutory provisions of s. 184.4 of the Code.

[319] However, the manual then goes on (in my opinion both arbitrarily and without statutory foundation) to provide that:

If exigent circumstances exist, beyond the 24 hr. period, continue to monitor the investigation and direct the investigator to immediately begin preparation of a 188 (1) CCC Emergency or a 186 CCC Authorization.

[320] It is interesting and informative of my concerns with the arbitrariness of that policy direction, that Staff Sergeant Rolfe testified that:

1. in his experience an initial 24‑hour waiting period under s. 184.4 was not workable because waiting 24 hours to begin preparing a s. 186 authorization could adversely impact the ability to obtain that s. 186 authorization in less than 12 hours;

2. that could then result in the police intercepting communications without judicial authority for more than 36 hours which would be a longer period than that allowed under a s. 188 emergency judicial authorization; and

3. waiting for 24 hours before commencing an application for a judicial authorization might also result in the need to first obtain a s. 188 authorization before then proceeding to a s. 186 authorization.

[321] Based on those concerns, Staff Sergeant Rolfe advised Sergeant Brown and Corporal McDonald that steps should be taken as soon as possible to prepare a s. 186 authorization once the interception of communications under s. 184.4 had been approved and a feasibility study had been conducted by Special “I” concerning the telephone numbers sought to be intercepted. He also advised them he would provide an officer experienced in obtaining judicial authorizations to assist in the preparation of the application for an authorization under s. 186 of the Code.

[322] Subsequently, Sergeant Bangloy attended at the Burnaby detachment later that evening to assist Constable Carr in preparing the affidavit in support of Authorization P‑12.

[323] I find that having Sergeant Bangloy and Constable Carr begin preparing the application for Authorization P‑12 before the expiry of 24 hours of interception under s. 184.4 was laudable. That step reduced by 24 hours the time period in which communications might otherwise have been be intercepted under s. 184.4 without judicial scrutiny or oversight had Staff Sergeant Rolfe not used his own experience and expertise rather than adhere to the provisions of the R.C.M.P. policy manual.

[324] Unfortunately, however, the officers involved in the continued use of s. 184.4 before obtaining judicial authorization under another provision of Part VI of the Code still proceeded under the misconception that their obligation was to obtain judicial authorization within 24 hours. That misconception was based upon their acceptance of the appropriateness of the arbitrary “initial 24‑hour period waiting period” established by the R.C.M.P. policy manual.

[325] The result was that the police did not actively consider applying under s. 188 of the Code for a 36‑hour emergency judicial authorization or take any steps to determine the availability of a judge of this Court to consider such an application.

[326] As I observed in ruling on the constitutional invalidity of s. 184.4 of the Code, I am satisfied by the totality of the evidence adduced on this application that in most cases of exigency that warrant the implementation of s. 184.4 of the Code the usual practise that should be followed by the police is to seek a judicial authorization under s. 188 of the Code while preparing an application under s. 186. That process will both minimize the delay in obtaining the constitutionally required judicial oversight and allow reasonable time to allow the preparation of the affidavit in support of a s. 186 application.

[327] Although the various police officers who testified sought to convince me that the time to obtain an authorization under s. 188 of the Code would likely be the same as that to obtain a s. 186 judicial authorization, I cannot accept the validity of that assertion.

[328] I reach that conclusion primarily from Corporal McDonald’s testimony regarding his decision making process in determining that the emergency interception of communications under s. 184.4 was needed in the circumstances facing the police in the late evening of February 25, 2006.

[329] In his examination in chief, Corporal McDonald precisely and concisely testified about his assessment of the need to implement s. 184.4. He then testified about the reasons why, in his opinion, other provisions of Part VI would either not meet the needs of the investigation or would take a very long period of time, during which the victims of this alleged kidnapping would be at serious risk of harm if the police did not implement s. 184.4 of the Code.

[330] Corporal McDonald’s testimony proves beyond question that he was able to communicate, without prompting, not only his thought process but also his command of the facts upon which he based his decision. He was able to do so in the courtroom in less than ten minutes. Even though that he had obviously reviewed the circumstances in detail before testifying, the fact remains that in a very limited time he was able to articulate the necessary facts to establish the need for an emergency wiretap authorization. I am not able to accept that he could not have conveyed that same information in that same time frame to a designated officer under s. 188 of the Code. That designated officer could then have appeared before a judge of the Court by way of an oral application for an emergency judicial authorization under that section.

[331] While I agree that some time would obviously have then been required to brief the designated officer, the evidence on this voir dire establishes that Superintendent Schmietenknop was one of the designated officers empowered by statute to appear before a judge of this Court for an oral application under s. 188 of the Code. Further, Superintendent Schmietenknop had already been briefed by Sergeant Brown when he himself approved the implementation of s. 184.4.

[332] In those circumstances, I cannot accept that the R.C.M.P. should not have immediately pursued a judicial authorization under s. 188 of the Code after invoking s. 184.4 in order to minimize the length of time during which interceptions that were not judicially approved would be made.

[333] Even accounting for the time required, if any, to more fully brief Superintendent Schmietenknop, locate a judge of this Court who would be available to hear the application even late on a Saturday night, and arrange to have Superintendent Schmietenknop attend before him or her to make that application, that amount of time would have been dramatically less than the approximately 22 hours taken by Constable Carr to prepare his affidavit in support of Authorization P‑12, locate Mr. Dykes and arrange for him to review the affidavit, locate Justice Pitfield and arrange for him to consider the application.

[334] I am satisfied that the more expeditious procedure available under s. 188 of the Code was not contemplated or pursued as it ought to have been in the circumstances, not because it would have “taken just as long” as now asserted by the police but because of the misconceived minimum 24‑hour period of validity that R.C.M.P. policy had arbitrarily read into s. 184.4.

[335] While the existence of that misconceived policy explains the actions of those officers who relied upon it during their use of s. 184.4 on February 25, 2006, it also establishes to my satisfaction that s. 184.4 was utilized to intercept private communications for a longer period than that which was necessary in the circumstances. Exactly how much longer than necessary is, however, impossible to assess.

[336] In those circumstances, given the good faith of all of the officers involved in the use of s. 184.4, the lack of prior judicial interpretation of s. 184.4 or consideration of the R.C.M.P. policy followed by the officers, and the exigency of the situation faced by them, I am not prepared to find that the failure to obtain a judicial authorization in something less than 22 hours was blameworthy.

[337] I accordingly find that in the circumstances of this case delay alone is insufficient to establish that any particular communication intercepted before the granting of Authorization P‑12 on Sunday, February 26, 2006, was not intercepted pursuant to s. 184.4 of the Code.

(4)

Were the communications intercepted pursuant to s. 184.4 prior to the issuance of Authorization P‑12 validly intercepted under the provisions of ss. 184.4(c)?

[338] This question requires consideration of implementation issues in relation to the actual communications intercepted by the police under s. 184.4.

[339] The police intercepted approximately 50 communications under s. 184.4 before obtaining judicial approval for interceptions under Authorization P‑12.

[340] The Crown has given notice of its intent to adduce 21 of those interceptions at trial. Those include interceptions between Peter Li and/or Mary Li, Michael Li or Ken Feng; Mary Li and Michael Li; “unknown persons” and “BB”; Michael Li and “BB”; “unknown persons” and Michael Li; and, the call between “Q” and Mary Li at 6:25 p.m. on February 26, 2006.

[341] The other communications that were intercepted but which the Crown does not intend to adduce included calls between: Mary Li and Ken Feng, Michelle Ko or Michael Li; and, numerous calls between “unknown persons”. All of those calls were recorded under s. 184.4 notwithstanding that many of the speakers were neither perpetrators nor allegedly victims of the crimes under investigation by the police when s. 184.4 was implemented. That occurred because in their interception of calls under s. 184.4, the police used an “automatic” recording methodology with live monitoring rather than only a live monitoring methodology.

[342] The Crown’s intention to adduce evidence of all of the calls it has identified makes it necessary to consider the extent to which those calls were properly intercepted pursuant to the provisions of ss. 184.4(c).

[343] Subsection 184.4(c) only allows the interception of private communications where:

[344] I have previously discussed the interpretation of ss. 184.4(c) in the context of the constitutional issues and that a plain reading of ss. 184.4(c) limits the communications that can be intercepted to those between the “perpetrator” of the anticipated serious harm and the actual “victim” or “intended victim” of that harm.

[345] In reaching that conclusion, I did not accept the Crown’s submission that “victim” and “intended victim” should be interpreted to include family members of the person who is the subject of the threat of harm.

[346] Those conclusions lead me to find that only those communications between: Peter Li and Mary Li, Michael Li, Ken Feng; “BB” and Michael Li; “unknown persons” and “BB” and Michael Li; and between “Q” and Mary Li (at 6:25 p.m. on February 26, 2006) were intercepted in accordance with the provisions of ss. 184.4(c) of the Code.

(5)

When did the interception of communications under s. 184.4 of the Code terminate?

[347] Interception of communications pursuant to s. 184.4 of the Code is only authorized in circumstances of urgency and apprehended serious harm such that a peace officer reasonably believes that a judicial authorization to prevent that harm cannot be obtained with reasonable diligence. It follows therefore that once a judicial authorization has been obtained, the statutory precondition of urgency can no longer apply.

[348] I accordingly find that in this case interception of communications under s. 184.4 of the Code terminated when Authorization P‑12 was granted by Pitfield J. at 7:20 p.m. on February 26, 2006.

C. THE VALIDITY OF AUTHORIZATION P‑12

[349] I previously determined in my November 2, 2007 “Ruling on Standing” that only the accused Ly and Tse have standing to challenge the validity of Authorization P‑12 granted by Pitfield J. under s. 186 of the Code at 7:20 p.m. on February 26, 2006. Their challenge to the validity of Authorization P‑12 focuses on two issues.

[350] Firstly, the accused submit that the information contained in Constable Carr’s affidavit in support of Authorization P‑12 does not establish the existence of reasonable and probable grounds to believe that the offences identified in the authorization (kidnapping, extortion and conspiracy to commit murder) had been or would be committed. That challenge is based primarily upon an attack upon the credibility of Mary Li and an attack on the existence of reasonable grounds to believe that the subject offences had been or were being committed. To a more limited extent, the challenge relies upon the inclusion in the affidavit of information obtained by reason of the interception of communications under s. 184.4 of the Code. The accused say that information should be excised due to the constitutional invalidity of those provisions or, alternatively, due to the failure of the police to properly implement s. 184.4 prior to obtaining Authorization P‑12.

[351] Secondly, the accused submit that Constable Carr’s affidavit in support failed to make full and frank disclosure of all relevant information that ought to have been included and also contained misleading information to such an extent that the issuing judge could not have issued Authorization P‑12 had he been advised of the true state of affairs. Under this second branch of their attack, the accused submit that the affidavit in support of the authorization was also so subversive of the authorization process that Authorization P‑12 must be set aside.

[352] Although counsel for the accused also initially submitted that the affidavit in support of Authorization P‑12 sworn by Constable Carr failed to establish investigative necessity, they subsequently did not press that argument because in urgent situations (i.e., the exigent circumstances apprehended by the police in invoking s. 184.4 of the Code), it is not necessary to meet that pre-condition to the issuance of an authorization under s. 186 of the Code.

(1)

Review of an authorization issued under s. 186 of the Code

[353] Before proceeding to analysing the two substantive grounds of attack upon the validity of Authorization P‑12 raised by the accused, it is necessary to review in some detail the jurisprudence that governs the approach that must be taken by a reviewing judge on an application to set aside an authorization to intercept private communications obtained under s. 186 of the Code.

[354] Section 186(1) of the Code provides:

186(1) An authorization under this section may be given if the judge to whom the application is made is satisfied

(a) that it would be in the best interests of the administration of justice to do so; and

(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

[355] The leading cases on the role of a reviewing judge in relation to not only s. 186 authorizations but also other judicially authorized searches in the context of s. 8 of the Charter are the decisions of the Supreme Court of Canada in R. v. Garofoli, [1990] 2 S.C.R. 1421, 60 C.C.C. (3d) 161 [Garofoli] and R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65 [Araujo].

[356] In Araujo, LeBel J., for the Court, said (at ¶51):

[51] The reviewing judge does not stand in the same place and function as the authorizing judge. He or she does not conduct a rehearing of the application for the wiretap. This is the starting place for any reviewing judge, as our Court stated in Garofoli, supra, at p. 1452:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

As I noted as a judge at the Quebec Court of Appeal in Hiscock, supra, at p. 326 C.C.C., even a basis that is schematic in nature may suffice. However, as our Court has recognized, it must be a basis founded on reliable information. In R. v. Bisson, [1994] 3 S.C.R. 1097 at p. 1098, 94 C.C.C. (3d) 94, the requirement was described as "sufficient reliable information to support an authorization" (emphasis added). The Court concluded that this requirement had still been met despite the excision of retracted testimony. In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued.

[Emphasis in original.]

[357] He went on to observe (at ¶52) that:

… As this Court confirmed in Bisson, supra, the reviewing judge must carefully consider the existence of sufficient reliable information, that is, information that may reasonably be believed on the basis of which the authorization could have issued.

[Emphasis in original.]

[358] Of significance also to the issues to be decided in this case, is LeBel J.’s discussion in Araujo concerning situations involving material omissions from affidavits in support or the inclusion of misleading information. Because of the importance of that discussion to the issues to be decided by me concerning not only Authorization P‑12 but also P‑17, I record in full LeBel J.’s observations (at ¶54-59):

[54] The authorities stress the importance of a contextual analysis. The Nova Scotia Court of Appeal, while reviewing the cases from our Court cited above, explains this in a judgment dealing with problems arising out of errors committed in good faith by the police in the material submitted to the authorizing justice of the peace.

These cases stress that errors, even fraudulent errors, do not automatically invalidate the warrant.

This does not mean that errors, particularly deliberate ones, are irrelevant in the review process. While not leading to automatic vitiation of the warrant, there remains the need to protect the prior authorization process. The cases just referred to do not foreclose a reviewing judge, in appropriate circumstances, from concluding on the totality of the circumstances that the conduct of the police in seeking prior authorization was so subversive of that process that the resulting warrant must be set aside to protect the process and the preventive function it serves. [Emphasis added.] [R. v. Morris (1998), 134 C.C.C. (3d) 539 at p. 553.]

An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems. Again, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge.

[55] Of course, this statement of the test does not fully explain the matter of which evidence the reviewing judge should consider in a situation where some of the original information was erroneous and there is an attempt to amplify it on review, a possibility which Sopinka J. in Garofoli, supra, at p. 1452, but briefly mentioned. The Nova Scotia Court of Appeal in Morris, supra, at pp. 555-69, undertakes a careful examination of these questions based on our Court's analyses in R. v. Plant, [1993] 3 S.C.R. 281, 84 C.C.C. (3d) 203, and Bisson, supra.

[56] In Plant, supra, our Court considered a situation where the information on a search warrant application compressed two parts of the police investigation by stating that an informant had supplied the police with a particular address when the informant actually supplied a precise description of the house that enabled the police to identify its address. The address itself would be excised from the information on review, but Sopinka J., at pp. 298-99, allowed for the amplification of the information obtained from the informant and concluded that, given that there was no deliberate attempt to mislead, the information concerning the description of the house and the fact that the police had found such a house at the address in question could still contribute to the existence of reasonable and probable grounds. As Morris, supra, at p. 556 notes, only erroneous information "needs to be excluded from consideration and that material, provided it is not part of a deliberate attempt to mislead the Justice of the Peace, may be amplified by evidence on review showing the true facts".

[57] In Bisson, supra, at p. 1098, our Court gave very short reasons but also affirmed the reasons of Proulx J.A. in the Quebec Court of Appeal, [1994] R.J.Q. 308, 87 C.C.C. (3d) 440. In his judgment, Proulx J.A. was clear that a court must look at non-disclosure of any material fact (translation) "with respect to the affidavit considered as a whole, or even with respect to the remaining parts of it" (p. 455 C.C.C.). He quoted at p. 457 C.C.C. from the Ontario Court of Appeal in Church of Scientology, supra, at pp. 528-29: "[T]he function of the reviewing judge is to determine whether there is any evidence remaining, after disregarding the allegations found to be false and taking into consideration the facts found to have been omitted by the informant, upon which the justice could be satisfied that a search warrant should issue" (emphasis added, also affirmed in Morris, supra, at p. 558). Again, erroneous information is properly excised. In Bisson, supra, of course, the recanted information obviously had to be excised entirely and the remaining information then assessed in the totality of the circumstances. Where the erroneous information results from a simple error and not from a deliberate attempt to mislead the authorizing judge, amplification may be in order. Nonetheless, there would be no need to seek to amplify the record if sufficient reliable material remains even after excising the erroneous material.

[58] Thus, in looking for evidence that might reasonably be believed on the basis of which the authorization could have issued, the reviewing court must exclude erroneous information. However, if it was erroneous despite good faith on the part of the police, then amplification may correct this information.

[59] When using amplification, courts must strike a balance between two fundamental principles of search and seizure law that come into a rather unique tension in these kinds of situations: see Morris, supra, at pp. 567-68. As a result of this tension, the cases disclose divergent attitudes to incomplete or incorrect affidavits and amplification thereof: see Morris, at pp. 560-67; cf. R. v. Madrid (1994), 48 B.C.A.C. 271 at pp. 285-90 sub nom. R. v. Troncoso, and R. v. Harris (1987), 35 C.C.C. (3d) 1 (Ont. C.A.) at pp. 23 and 27 (leave to appeal refused, [1987] 2 S.C.R. vii, 38 C.C.C. (3d) vi). The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protection of everyone's privacy interests (Hunter v. Southam Inc., supra, at p. 160), amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. On the other hand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable and probable grounds and had demonstrated investigative necessity but had, in good faith, made some minor, technical error in the drafting of their affidavit material. Courts must recognize (along with investigative necessity) the two principles of prior authorization and probable grounds, the verification of which may require a close examination of the information available to the police at the time of the application for a wiretap, in considering the jurisprudence on amplification. The approach set out earlier to erroneous information in an affidavit on a wiretap application attempts to reconcile these principles. Courts should take a similar approach to amplification.

[Emphasis in original.]

[359] With those considerations in mind, I will now consider the validity of the affidavit in support of Authorization P‑12 in the context of the submission made by counsel for the accused.

(2)

Does the affidavit in support of Authorization P‑12 fail to
establish reasonable and probable grounds to believe that
the alleged offences of kidnapping, extortion and conspiracy
to commit murder had been or would be committed?

[360] The accused submit that Mary Li’s assertions are so unreliable due to her lack of credibility that any information emanating from her not corroborated by a reliable source should be excised from the affidavit in support of Authorization P‑12. As part of that argument, they also submit that Constable Carr failed to adequately inform the authorizing judge of the police concerns with Mary Li’s credibility so that the judge was misled by that non-disclosure.

[361] The specific credibility concerns raised by the accused about Mary Li relate to alleged lies told by her to Corporal McDonald and Corporal Chung in their interviews of her on February 25, 2006, concerning her assertions that neither she nor her husband were involved in the drug trade, and to alleged lies told by her in saying that she did not know about her father’s criminal activities, his criminal associates or his financial affairs. It must be noted that both Corporal McDonald and Corporal Chung acknowledged in their respective testimony that each believed that she was not being entirely truthful with them in relation to those matters.

[362] Counsel for the accused submit that given her known lack of credibility on those issues, the police could not reasonably rely on the balance of her assertions to establish that the crimes she alleged had been committed or were being committed, or at minimum should have specifically made those concerns regarding her credibility known in the affidavit in support rather than presenting her as a credible source of information.

[363] While I have concerns with the extent to which Constable Carr was selective in the disclosure of material information in his affidavit in support of Authorization P‑12 that I will discuss when considering the submissions of the accused related to the second basis upon which they attack the validity of that authorization, I have concluded that their submissions with respect to Mary Li’s credibility as being a bar to the existence of reasonable and probable grounds must fail.

[364] I reach that conclusion for the following reasons:

1. I do not agree, as submitted by the accused, that my consideration of the information emanating from Mary Li that is included in the affidavit in support of Authorization P‑12 should be based upon an analysis similar to that which is necessary for information from unknown and unidentified sources or from informants. Her identity and relationship to the alleged kidnap victims was disclosed to the authorizing judge, removing many of the concerns inherent to the reliability of information from unknown or unidentified sources or from informants.

2. Mary Li’s lack of credibility, as identified and acknowledged by Corporal McDonald and Corporal Chung, was related to peripheral issues and explicable by her understandable reluctance to disclose her own involvement or that of her husband or mother in criminal activity, whether in concert with Peter Li or independent of him.

3. Although Mr. Buck (on behalf of the accused Tse) submits that since Constable Carr had not included Corporal Chung’s or Corporal McDonald’s concerns regarding Mary Li’s credibility in his affidavit in support of Authorization P‑12 I should not consider their evidence by way of amplification, I do not agree.

4. I say that concerning Corporal Chung’s evidence because he was called as a witness on this voir dire at the instance of the accused. The obvious intention of counsel for the accused in doing so was to undermine the reliability and credibility of Mary Li’s reports to the police by exploring Corporal Chung’s past knowledge of her and her family’s involvement in criminal activity. Also, Corporal Chung’s evidence concerning his belief in the veracity of Mary Li’s complaints on the central issue of whether there had been a kidnapping and whether there was an ongoing extortion arose from his understanding of the criminal background of not only Mary Li but also of her father and Ken Feng. To the extent that his knowledge and experience as a police officer led him to believe that Mary Li might well be lying on some issues to protect herself yet truthful on others because of a real concern for her father’s well-being, Corporal Chung’s evidence on this voir dire was contextually important to the attack on her credibility mounted by the accused.

5. I am satisfied that having raised the issue of Mary Li’s credibility in the context of Constable Carr’s failure to include Corporal Chung’s concerns with some aspects of her credibility, the accused cannot now preclude the amplification of the record to include Corporal Chung’s assessment of Mary Li’s veracity on the central issue of whether a crime had been or was being committed.

6. In my opinion, in all of those circumstances, Corporal Chung’s evidence can and should be considered on amplification. To do otherwise would lead to the creation of an artificial factual record resulting in flawed decision making.

7. In making that determination, I also note that an argument similar to that now advanced by the accused was considered and rejected by McEachern C.J.B.C. for the British Columbia Court of Appeal in R. v. Madrid (1994), 48 B.C.A.C. 271, [1994] B.C.J. No. 1786 (QL) at ¶59 and 60 where he stated:

[59] If I am wrong in the foregoing, and there was an insufficient basis for authorization P. 442, I must consider whether the evidence given by Corporal Rioux on the cross-examination on the voir dire, sometimes called "amplification," required the reviewing judge to reach a different conclusion about the P. 442 authorization. Sopinka J. mentions this question in Garofoli. After adopting the "no basis" test formulated by Martin J.A. in the same case ((1988), 41 C.C.C. (3d) 97 at 119 (Ont. C.A.)), Sopinka J. said at p. 1452:

[60] Counsel for the Appellants argue that the above passage means that cross-examination can only weaken the force of the affidavit evidence, but it cannot strengthen it. With respect, I doubt the correctness of that view. First, Sopinka J. referred to the record "as amplified on the review," making no distinction between "amplifying" evidence that helps the defence case and that which hurts it. Second, if Appellants' counsel have stated the correct view, there would be no down-side to cross-examination and counsel may fish, at least until the patience of the trial judge is exhausted, without risk of an unfortunate answer or unfavourable evidence. This would be contrary to all the principles of a balanced, adversarial trial process: T.A. Mauet, Fundamentals of Trial Techniques, 3d ed. (Boston: Little, Brown, 1992) at 216; E. Crowther, Advocacy for the Advocate, 2d ed. (London: Longman, 1990) at 95-96; J.A. Olah, The Art and Science of Advocacy (Toronto: Carswell, 1990) at 12-40.

8. I reach the same conclusion concerning the evidence of Corporal McDonald relating to his assessment of Mary Li’s credibility. Although he was called as a Crown witness on this voir dire, I am satisfied that his status as such does not preclude the admission of his evidence on amplification. I may have reached a different conclusion if the Crown had sought to adduce his evidence to enhance Mary Li’s credibility in the absence of an attack upon it by the accused. However, in my opinion, his evidence was more in the nature of rebuttal evidence on the issue rather than an attempt to buttress the grounds for belief in the affidavit in support. In those circumstances, I do not consider the admission of his evidence on amplification should be viewed as an attempt by the Crown to “circumvent the prior authorization requirement” that was addressed as a possible amplification concern in Araujo (at ¶59 as quoted above).

9. Leaving aside those amplification issues, I am also satisfied that notwithstanding Constable Carr did not specifically identify concerns with Mary Li’s credibility in his affidavit in support of Authorization P‑12, he did include some indicia of her potential unreliability and being at least knowledgeable about and possibly complicit in her father’s criminality, such as:

(a) information from Corporal Chung (as repeated by Constable Spielman) that Peter Li might possibly be fleeing the country to avoid prosecution and that Mary Li might be providing a false report concerning his disappearance;

(b) substantial details about Peter Li’s criminal activity and Mary Li’s advice that he normally calls her “about arranging people to protect him if he had to deal with people he feels are dangerous”;

(d) her belief that the motive for Peter Li’s abduction was “ money and drug related”.

10. Also, much of Mary Li’s version of events was corroborated by independent sources and evidence, including the facts that:

(a) Peter Li had missed an important real estate appointment on February 23, 2006;

(b) vehicles that could be associated to Peter Li, Jennifer Pan and Xiao Chen were still in the garage of his apartment;

(c) the time at which and the telephone number from which she told the police she had been contacted by her father in the afternoon of February 24, 2006 to say that he needed $1‑2 million were both verified by the police by looking at her cellular telephone; and

(d) at the same time that Peter Li was calling her about raising money, he was also calling her cousin, Michael Li, in Toronto with the same demand to raise millions of dollars.

[365] In addition to concerns raised about the Mary Li’s credibility as the basis for the issuance of Authorization P‑12, the accused took the position that information in the affidavit in support about the telephone call from “BB” to Michael Li at 3:55 p.m. (Vancouver time) intercepted pursuant to s. 184.4 of the Code should be excluded from consideration when determining whether there were sufficient grounds to grant Authorization P‑12.

[366] That submission arises from the arguments raised by the accused about the constitutionality of s. 184.4.

[367] I have determined that I do not need to decide that issue on this application because even if the facts and contents of that call were to be expunged, doing so would not render Authorization P‑12 invalid. Also, in the absence of argument by all counsel on the point, it would be wrong to address such admissibility issues since any ruling might impact upon issues concerning the admissibility at trial of that telephone call or other calls intercepted under s. 184.4 of the Code by way of potential s. 24 Charter arguments or common law evidentiary principles. Those issues must be addressed with the benefit of full argument in the context of the rulings I have already made as well as the evidentiary context in which the Crown seeks to adduce such evidence at trial.

[368] In result, after considering the entirety of the affidavit in support of Authorization P‑12 I am satisfied that:

1. the affidavit contains sufficient reliable information to establish that the offences of kidnapping and extortion of Peter Li and Jennifer Pan had been or would be committed;

2. there is also some evidence linking Xiao Chen to those crimes;

3. the reference by Mary Li to Peter Li’s advice that his “ghost would come back” is capable of supporting an inference that his life was in danger, but does not establish reasonable and probable grounds to believe that the crime of conspiracy to commit murder had been or would be committed; and

4. in the totality of the circumstances, however, any deficiencies in the evidence concerning the existence of reasonable grounds to support an authorization concerning the kidnapping or extortion of Xiao Chen or the conspiracy to commit murder of any of the three alleged victims does not serve to vitiate the reasonable grounds for belief relating to the kidnapping of Peter Li and Jennifer Pan and an ongoing extortion.

(3)

Does the affidavit in support of Authorization P‑12 fail to make full and frank disclosure of all relevant information that ought to have been included or contain misleading information to such an extent that the issuing judge could not have issued Authorization P‑12 had he been advised of the true state of affairs?

[369] In large measure the submissions of the accused under this basis of attack upon the validity of Authorization P‑12 were based upon Corporal Carr’s failure to bring to the attention of the issuing judge all of the concerns the police had concerning Mary Li’s motivation for reporting her father missing and her credibility generally.

[370] I have already addressed those concerns in detail and determined that problems with Mary Li’s credibility do not amount to a lack of reasonable and probable grounds for the granting of Authorization P‑12.

[371] Having said that, however, this second avenue of attack upon Authorization P‑12 raises somewhat different concerns than the substantive ones I addressed under the first ground of attack.

[372] In challenging the alleged failure to make full, fair and frank disclosure by omitting material facts and including misleading facts, the accused take issue with the process by which Authorization P‑12 was obtained.

[373] Specific concerns addressed by the accused are the failure of Constable Carr to:

1. include full CPIC information on Peter Li concerning the extent of his criminality that was available when the affidavit in support was sworn;

2. specifically identify problems with Mary Li’s credibility known to and observed by the police at the time Authorization P‑12 was granted;

3. include information from Constable Scudds’ report (see para. 29 of this ruling) that

…all the parties involved in this file (including daughter, her husband, and the three possible missing persons), are Persons Of Interest regarding numerous high-scale police investigations, including drug trafficking, loan sharking, money laundering, and fraud…

4. more fully address the possibility that Peter Li was fleeing the country; and

5. accurately record Sergeant Brown’s conclusions concerning whether the investigators considered the threats reported by Mary Li were legitimate.

[374] The concerns raised by the accused about the failure to include Peter Li’s CPIC report do not amount to a lack of full disclosure. The affidavit in support is replete with references to Peter Li’s high level criminal activity. Further details were, in my opinion, unnecessary and their omission would not in any way mislead an authorizing judge.

[375] Having said that, however, my consideration of all of the other concerns raised by the accused when considered in the context of the whole of his affidavit in support leads me to conclude that Constable Carr was unacceptably selective in his failure to include information that could lead to a conclusion other than that which he himself had reached.

[376] I reach that conclusion primarily because of what I consider to be Constable Carr’s deliberately misleading characterization of Sergeant Brown’s report concerning his determination to invoke s. 184.4 of the Code. As I have previously noted, in his report of February 25, 2006, Sergeant Brown recorded:

[My emphasis.]

[377] In his affidavit in support of Authorization P‑12, however, Constable Carr swore (at paragraph 16):

On February 26, 2006 I read a police report that was written by Sgt. B.J. Brown (Sgt. Brown) on February 26, 2006 and learned the following:

a. Sgt. Brown made the determination after being briefed by investigators, that there was a legitimate threat to Peter Li and decided that an emergency interception of private communications was warranted pursuant to s. 184.4 CC.

[My emphasis.]

[378] Although Constable Carr testified that the omission of the word “seemed” was inadvertent, I do not accept that explanation. I reach that conclusion because the balance of the information included in the affidavit is virtually identical to that contained in Sergeant Brown’s report, and also because of other instances of selectivity by omission that could lead to the conclusion that the circumstances were capable of supporting a conclusion other than that there had been a kidnapping.

[379] Further, Constable Carr admitted in cross-examination that he wanted the authorizing judge to reach the conclusion that Peter Li and others had been kidnapped.

[380] I am also concerned with paragraph 12 of Constable Carr’s affidavit in which he made reference to having read Constable Scudds’ report of February 26, 2006, to establish that Constable Scudds had confirmed with the realtor identified by Mary Li that he was concerned because Peter Li had missed an appointment. He did not, however, include concerns expressed by Constable Scudds about Mary Li and others in the Li family in addition to Peter Li being “Persons Of Interest regarding numerous high-scale police investigations, including drug trafficking, loan sharking, money laundering, and fraud”.

[381] I believe it is fair to say that when read in its totality (without the benefit of amplification) the affidavit in support of Authorization P‑12 does not directly advert to Mary Li’s involvement in crime or the trustworthiness of her reports in the same way that inclusion of that information from Constable Scudds would have done.

[382] The general impression conveyed by the affidavit in support of Authorization P‑12 (before amplification) is that the police believed Mary Li to be an honest complainant who was fearful of her father’s safety and that her conclusions were worthy of belief. If information such as that contained in Constable Scudds’ report had also been included, it might well have led an authorizing judge to call into question Mary Li’s honesty and motivation and therefore the reliability of her information and the reliance placed upon it by the police.

(4)

Conclusion as to validity of Authorization P‑12

[383] Notwithstanding those concerns with selectivity that I have, after considering the totality of the evidence on this voir dire and the submissions of counsel, I concluded that the accused have not established that Constable Carr’s selectivity and his inclusion of potentially misleading evidence did not amount to a failure to make full and frank disclosure sufficient to require that Authorization P‑12 be set aside.

[384] I have reached that conclusion for the following reasons:

1. The most serious issue raised by the accused relates to Constable Carr’s misleading omission of the word “seemed” when referring to Sergeant Brown’s assessment of the legitimacy of a kidnapping. While I do not accept that it was an inadvertent omission, I also do not find that it is an omission that can be characterized as subverting the authorization process. In that circumstance, the appropriate course of action is either to delete the offending paragraph or read in the omitted word. In either case (as I determined in respect of the first issue raised by the accused relating to Mary Li’s credibility), the affidavit in support contains sufficient remaining reliable information to establish reasonable and probable grounds to believe that at least some of the offences being investigated had been or were being committed.

2. Also, while I have concerns about Constable Carr’s reformulation of Sergeant Brown’s report to the extent that it minimizes the concerns the police had about the veracity of Mary Li’s complaint and the possibility that Peter Li might be fleeing, I must also observe that his affidavit in support of Authorization P‑12 specifically makes reference to the possible flight scenario.

3. While I have found that Constable Carr was selective in other ways in presenting information that tended to support the kidnapping theory he espoused, I am not satisfied that such selectivity subverted the authorization process. Although he omitted information that would have more directly brought to the attention of the authorizing judge concerns about Mary Li’s honesty and involvement in crime, Corporal Carr did include some evidence tending to infer that Mary Li had some knowledge of her father’s criminal affairs and could even be complicit in them.

4. Notwithstanding my concerns about selectivity, I have also considered the state of the investigation at the time the affidavit in support of Authorization P‑12 was sworn. The circumstances were exigent and the police investigation of a possible kidnapping rather than a disappearance had been ongoing for only slightly more than 24 hours from late on Saturday and through the following Sunday.

5. I accept the testimony of all of the officers involved in the investigation who testified before me that events were occurring rapidly and the paper work relating to those events might not at all times have kept up with the events.

[385] In result, I find that the communications intercepted pursuant to Authorization P‑12 between its issuance at 7:20 p.m. on February 26, 2006 and the granting of Authorization P‑17 on March 10, 2006, were lawfully intercepted pursuant to s. 186 of the Code.

[386] The Crown has given notice of its intention to lead as evidence at trial the contents of 13 telephone calls intercepted pursuant to Authorization P‑12.

[387] Of those 13 calls, only three involve the interception of the communications of an accused person in this case. Specifically, the Crown will seek to lead evidence of two calls alleged to be from the accused Ly to Mary Li made on February 27, 2006, concerning a money drop in Vancouver; and of one call from the accused Ly on March 9, 2006, to an individual identified as “Hieu” whose last name is not known.

[388] The other 11 calls of which the Crown has given notice were amongst Peter Li and either Mary Li, Ken Feng, or Michael Li; or between Mary Li and Michael Li.

[389] In that regard, obvious concerns arise about the admissibility at trial of the intercepted communications of non-accused persons that will eventually have to be addressed. As I have earlier indicated in this ruling and as I also noted in my Oral Ruling on Standing dated November 2, 2007, the resolution of those issues will have to await the trial of the accused when such questions of admissibility can be assessed in the context of the factual and legal circumstances in respect of which the evidence is sought to be admitted.

(5)

Was Authorization P‑12 terminated by the issuance of Authorization P‑17?

[390] This issue arises because of submissions made by counsel for the accused Tse during the standing application that I heard and ruled upon before embarking upon the constitutional challenge to s. 184.4 of the Code and this voir dire concerning the validity of Authorizations P‑12 and P‑17. A synopsis of Mr. Buck’s submissions on behalf of the accused Tse can be found at ¶68 of my Oral Ruling on Standing dated November 2, 2007 in this proceeding.

[391] On that standing application the Crown took the position that Authorization P‑12 terminated upon the issuance of Authorization P‑17.

[392] I ruled (at ¶76 of my Ruling on Standing dated November 2, 2007) that there was not then sufficient evidence before me to make that determination and that it accordingly remained an arguable proposition.

[393] I have now had the benefit of some evidence regarding the approach of the R.C.M.P. to serial authorizations in the same investigation. Sergeant LaPorte testified that when a subsequent authorization in the same investigation is issued, the R.C.M.P. will rely on the provisions of the later authorization to determine the manner of interception that is authorized, as well as any restrictions on the police power to intercept that may be included in the subsequent authorization. He testified that, in his view, to do otherwise would put the R.C.M.P. at risk of unlawfully intercepting communications if, for example, a target named in an earlier authorization was no longer a target in a later authorization.

[394] While that evidence is not necessarily determinative of the issue of termination as a matter of law, the very practical considerations addressed by Sergeant LaPorte do inform the determination of the legal issue.

[395] It would obviously be a matter of good practice if the police or Crown Counsel seeking a subsequent authorization in the same investigation specifically addressed this issue by requesting the second authorizing judge to consider and rule upon the status of the existing order. In the absence of such a consideration and ruling situations such as this may arise and may often be of more than abstract concern.

[396] In that regard, it is informative that the Crown in this case initially took the position on the standing application that Authorization P‑12 was terminated by the issuance of Authorization P‑17. In argument on the hearing of these issues, however, although the Crown continued to advance that position, it also submitted that if the subsequent authorization (Authorization P‑17) were to be was set aside, the prior existence of Authorization P‑12 (if valid) could be a matter for consideration under any application brought pursuant to s. 24 of the Charter with respect to intercepts purportedly made under the authority of Authorization P‑17.

[397] Since all counsel have requested that no issues that might arise under s. 24 of the Charter be considered by me prior to the delivery of this ruling, I will make no comment on the merits of that Crown submission. I do, however, raise it to illustrate that the issue I must now determine may well be a substantive one, the need for a ruling on which could be avoided by requesting that the judge who issues a subsequent authorization address its intended effect on a prior one.

[398] Generally speaking however, I am satisfied that, in the absence of a specific order addressing any continued validity of a prior authorization, the issuance of a subsequent authorization under the same provisions of the Code before the expiration of a prior authorization in respect of the same police investigation terminates the prior authorization.

[399] I reach that conclusion due to:

1. the very practical considerations addressed by Sergeant LaPorte about monitoring restrictions and identification of targets with which the police must comply;

2. the general principle that the Court will not issue duplicative orders in the same cause; and

3. the fact that there is nothing in the wording of Authorization P‑17 indicating it was intended to supplement, overlap, or compete with rather than replace Authorization P‑12.

[400] I am accordingly satisfied that Authorization P‑12 was terminated and replaced by Authorization P‑17.

D. THE VALIDITY OF AUTHORIZATION P‑17

[401] The validity of Authorization P‑17 is primarily challenged by the accused Tse. On his behalf, Mr. Buck initially advanced six bases challenging the validity of Authorization P‑17.

[402] He submitted that:

1. Evidence in Constable Carr’s affidavit in support of Authorization P‑17 that emanated from communications intercepted under s. 184.4 of the Code prior to the obtaining of Authorization P‑12 should be excised from the affidavit due to the constitutional invalidity of that section and additionally (or, alternatively) due to the failure of the police to implement s. 184.4 as enacted in accordance with its provisions.

2. Evidence in the affidavit in support of Authorization P‑17 that emanated from communications intercepted under Authorization P‑12 should be excised from the affidavit in support of Authorization P‑17 due to the invalidity of that earlier authorization.

3. Once all of the evidence emanating from s. 184.4 of the Code and Authorization P‑12 is excised, the affidavit in support of Authorization P‑17 fails to establish reasonable and probable grounds to believe that the offences alleged in it had been or were being committed.

4. The affidavit in support of Authorization P‑17 failed to establish the statutory prerequisite of investigative necessity.

5. The affidavit in support failed to make full and frank disclosure of all relevant information that ought to have been included and also contained misleading information to such an extent the issuing judge could not have granted Authorization P‑17 had he been advised of the true state of affairs.

6. In the circumstances of this case, Constable Carr’s failure to make full and frank disclosure of material information (the existence of an alternate police theory that was inconsistent and undermined the theory advanced in the affidavit in support) was so subversive of the judicial authorization process that Authorization P‑17 must be set aside.

[403] During the hearing of this application, Mr. Buck effectively abandoned the “investigative necessity” ground. In my view, that was an appropriate concession given the status of the investigation on March 10, 2006.

[404] Also, all submissions related to the excising of information obtained through the operation of Authorization P‑12 must fail due to my determination that all such information was lawfully obtained pursuant to an authorization validly issued under s. 186 of the Code.

[405] I also conclude that the valid inclusion of information obtained pursuant to Authorization P‑12 in the affidavit in support of Authorization P‑17 makes it unnecessary to consider submissions concerning any exclusion of information obtained through the implementation of s. 184.4 of the Code because the inclusion of information obtained pursuant to Authorization P‑12 renders academic any exclusion of evidence obtained under s. 184.4. In those circumstances and having regard to possible applications under s. 24 of the Charter I may still have to consider involving the admissibility of evidence obtained under s. 184.4, it would be wrong for me to now consider that issue in the absence of full submissions concerning such admissibility issues.

[406] Those findings and conclusions leave for determination two grounds of attack by the accused upon the validity of Authorization P‑17, namely:

1. failure to make full and frank disclosure; and

2. subversion of the judicial authorization process.

[407] The two grounds are very much inter‑related in this case.

(1)

Does the affidavit in support of Authorization P‑17 fail to make “full and frank disclosure” of all relevant information that ought to have been included or contain misleading information to such an extent that the issuing judge could not have issued Authorization P‑17 had he been advised of the true state of affairs?

[408] At the heart of all the submissions of the accused in regarding the validity of Authorization P‑17 is the failure of Constable Carr to include any reference in his affidavit in support of Authorization P‑17 to ongoing concerns expressed by the police investigators about the possibility that, either with or without the involvement or knowledge of his family, Peter Li was orchestrating a “scam” or “bogus” kidnapping to obtain large sums of money for his own use.

[409] Just as when considering whether Constable Carr made full and frank disclosure in his affidavit in support of Authorization P‑12, it is essential to bear in mind the status of the police investigation when his affidavit in support of Authorization P‑17 was sworn.

[410] This was no longer an investigation that required the preparation and presentation of an affidavit in support of a judicially authorized wiretap in exigent circumstances. An existing authorization under the provisions of s. 186 of the Code was already in place and by its terms the police were entitled to intercept private communications pursuant thereto until March 30, 2006. Impreciseness of language or failure to include relevant information in Authorization P‑17 cannot be explained or excused by reason of the time pressures or investigative exigencies that existed when Authorization P‑12 was prepared and presented to the authorizing judge.

[411] Further, sufficient time had passed for the affiant to determine whether any information included in his affidavit in support of Authorization P‑12 was misleading and also whether there was any other relevant information that ought to have been included.

[412] Unfortunately, Corporal Carr did not take the opportunity to fully ensure the accuracy of his original affidavit. While he did address some minor deficiencies, he did not address his failure to use the word “seemed” in para. 16(a) of that affidavit (which I have already discussed in some detail), notwithstanding that he did advert to that paragraph by making the wholly inconsequential correction that it ought to have said “s. 184.4 of the Criminal Code” rather than “184.4 CC”.

[413] My review of the entirety of his second supporting affidavit in the context of all the material filed on this voir dire leads me to conclude that Constable Carr was even more unacceptably selective in his failure to include information that could lead to a conclusion other than that which he had reached and that he admitted that he wanted the authorizing judge to reach: namely, that Peter Li and others had been kidnapped.

[414] I will now address that unacceptable selectivity in the context of the obligation of an affidavit to make full and frank disclosure of material information. In doing so, I bear in mind the oft‑cited succinct expression of the obligations upon an affiant stated by LeBel J. in Araujo (at ¶46 and 47) that:

[46] Looking at matters practically in order to learn from this case for the future, what kind of affidavit should the police submit in order to seek permission to use wiretapping? The legal obligation on anyone seeking an ex parte authorization is full and frank disclosure of material facts: cf. Dalglish v. Jarvie (1850), 2 Mac. & G. 231, 42 E.R. 89; R. v. Kensington Income Tax Commissioners, [1917] 1 K.B. 486 (C.A.); Re Church of Scientology and The Queen (No 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.), at p. 528; United States of America v. Friedland, [1996] O.J. No. 4399 (QL) (Gen. Div.), at paras. 26-29, per Sharpe J. So long as the affidavit meets the requisite legal norm, there is no need for it to be as lengthy as À la recherche du temps perdu, as lively as the Kama Sutra, or as detailed as an automotive repair manual. All that it must do is set out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization. Ideally, an affidavit should be not only full and frank but also clear and concise. It need not include every minute detail of the police investigation over a number of months and even of years.

[47] A corollary to the requirement of an affidavit being full and frank is that it should never attempt to trick its readers. At best, the use of boiler-plate language adds extra verbiage and seldom anything of meaning; at worst, it has the potential to trick the reader into thinking that the affidavit means something that it does not. Although the use of boiler-plate language will not automatically prevent a judge from issuing an authorization (there is, after all, no formal legal requirement to avoid it), I cannot stress enough that judges should deplore it. There is nothing wrong -- and much right -- with an affidavit that sets out the facts truthfully, fully, and plainly. Counsel and police officers submitting materials to obtain wiretapping authorizations should not allow themselves to be led into the temptation of misleading the authorizing judge, either by the language used or strategic omissions.

[415] Review of the police investigative team’s Incident Briefing Reports commencing February 28, 2006 (less than two full days after the issuance of Authorization P‑12), establishes to my satisfaction that senior investigators were beginning to express serious doubts about whether there had, in fact, been a kidnapping.

[416] I note that an Incident Briefing Report dated Tuesday, February 28, 2006 at 2:20 p.m. records:

[My emphasis.]

[417] Evidence filed on this voir dire also establishes that a search of Peter Li and Jennifer Pan’s residence sometime shortly before February 28, 2006, located mortgage documents and financial information of Peter Li and of a company controlled by him. As I previously noted, those documents were subsequently investigated by Corporal Kurvers of the R.C.M.P.’s Burnaby Economic Crime Unit

[418] The results of that investigation are significant to the issues now raised by the accused because to the knowledge of the police the next day Peter Li called Mary Li and asked her how much money she had so far. He said that he needed $3 million, that she had to do whatever she could do to get the money, and that if she did not get it he would be “dead”. He also said that he did not have any money himself.

[419] That statement must be contrasted with Corporal Kurvers’ investigations into Peter Li’s financial circumstances that determined that as of March 1, 2006, there was a balance of $587,820 in a company account over which Peter Li had sole signing authority.

[420] Also, as I have previously noted, an Incident Briefing Report dated Friday, March 3, 2006, at 8:35 a.m. recorded:

[My emphasis.]

That same report ends with the observation that:

[My emphasis.]

[421] On Saturday, March 4, 2006, the R.C.M.P. accessed and searched Peter Li’s safe and provided the contents to Corporal Kurvers for further assessment. The documents included cheques payable to companies controlled by Peter Li totalling $400,000.

[422] A report dated March 6, 2006 includes the following information:

Jennifer PAN’s sister in China was contacted: Chun Feng PAN ([redacted]). She confirmed that she received a phone call from LI asking for money, that the money had been raised, but no one had collected yet. Chun PAN had called Mary LI about the $600,000. This is not consistent with what Mary told investigators. Chun PAN last spoke with her sister on February 22nd. She was advised by Mary, on February 25th that Jennifer was missing. On March 01, she received another call from Jennifer, from a private number. Jennifer knew that Chun PAN was looking for her. She told Chun PAN that she was with Peter, they were staying with some friends.

[My emphasis.]

[423] I have also previously referred to a lengthy report prepared on or about March 6, 2006, by Sergeant Seward detailing his many concerns about Mary Li’s credibility and the degree of co-operation she was providing to the police.

[424] In addition, as I have previously recorded, Sergeant Seward wrote many very detailed “Briefing Notes” on behalf of Superintendent Schmietenknop during the period between the granting of Authorization P‑12 and the application for Authorization P‑17, to advise their superiors of the ongoing status of the investigation and to justify the continued use of R.C.M.P. resources.

[425] Most germane to the issues raised by the accused on this application are the following observations recorded by Sergeant Seward on the following dates:

1. On February 27, 2006 (the day after the issuance of Authorization P‑12), he wrote:

…Investigators believe that the credibility of all parties is a major concern and that there may be a real possibility that Sum Peter LI is attempting to ‘play’ various people in an attempt to get money. Mary LI also appears to be less than forthright with investigators. There is no doubt that several phone calls are being missed due to clone phones, pay as you go cards etc that are causing investigators to operate from the weakened position of trying to piece together what is actually occurring among all parties involved. At this point, the members of Burnaby Serious Crime cannot continue to put the current amount of manpower and time into this investigation and continue to meet the other needs and commitments of Burnaby Detachment. A meeting will be sought among differing units that have had past dealings with the parties involved to gather information and formulate a direction for this investigation.

[My emphasis.]

2. On or about February 28, 2006, he related the contents of a telephone call between Ken Feng and Peter Li and, among other things, recorded:

…Peter Li said he owed this money, it was a business deal that had been his fault and it was not a complicated matter, just pay the money. FENG was forceful in saying this was unreasonable and he wanted him to be released. He asked Peter LI if he could be released and pay at a later date. Li said he would ask. Li did not sound stressed in anyway. CHENG, Yuan Chu then got on the phone demanding to speak with Xiao CHEN. Peter LI said they would not let CHENG talk and then hung up. FENG then called investigators and debriefed them on what had occurred. Approximately one hour later Peter Li again phoned FENG. Li said FENG could pay $2.5 million and then they would negotiate the rest. He said it was a business deal and that was all. Li said he would phone again and hung up. This time FENG did not phone investigators.

[My emphasis.]

3. On or about March 1, 2006, he reported:

Investigators feel that Mary LI and Kenny are still not being totally truthful and are holding back vital information. It is believed that they knew subjects shown in photographs but are resisting to divulge several key pieces of information. They have become more willing to listen to investigators and follow set strategies and are slowly developing co-operation but still cannot be trusted. One of the key leads will be if Peter LI’s phone can be identified and located. This would greatly improve the speed of the investigation. The initial aim of the investigation will be to obtain the safe release of all three hostages. Due to the fact that investigators are dependant on Peter LI to contact before action can be taken, the investigation moves in a pace that cannot be gaged and has to be constantly re-assessed.

[My emphasis.]

4. Concerning events on or about March 6 and 7, 2006, he wrote:

The second step in this investigation is to take a different approach with “victims”, Mary LI, Fu FENG (AKA Kenny), CHENG, Yuan Chu and Michael LI in Ontario. In interviews and intercepts it has been shown that these parties are not divulging all the information they possess. Given their backgrounds in criminal enterprise, it is assumed that they are being less than truthful. The difficulty is gauging the level of deception and the motives behind it. Once the issue of the Laurel Street address has been dealt with, investigators will employ a strategy where all parties including PAN, Chung feng (the sister of missing Jennifer PAN) residing in China, will be re-interviewed by negotiators pushing the theory of a possible fraud. This would be done in the hopes of generating some activity on the intercepted lines. As it stands now the lines are extremely quiet. Investigators made a list of inconsistencies that have been displayed by the “victims” in order to create some conversation. It has been six days since Peter LI has contacted the family. Until investigators can identify the phone he is using, that aspect of the investigation is at a standstill.

[My emphasis.]

5. Concerning events on or about March 8 and 9, 2006 (the day before and the day of Constable Carr’s swearing of the affidavit in support of Authorization P‑17), Sergeant Seward wrote:

Investigators have an appointment to go before a judge tomorrow with the second re-write for Part VI. This will give investigators additional lines to intercept including telephone numbers in Toronto in the hope of gathering more information to forward the investigation…

At the daily briefing it was decided to keep the kidnapping investigation covert for the present time. It was felt that investigators would be in a better position to assess when to go overt once the new lines are in place. It is very apparent that the victims are not being cooperative with investigators. It is believed that they have no intention to divulge all information that they are receiving and that they are totally prepared to lie to investigators in order to further their own intentions. Investigators will be making contact with all “victims” to bring certain concerns to their attention without compromising the on-going communication intercepts. It is believed that they will not divulge any information directly to investigators, but it is hoped that this will stimulate activity on the lines. …

[My emphasis.]

[426] Due to the nature of Sergeant Seward’s many Briefing Notes and their limited distribution, they were not seen by Constable Carr during his preparation of his affidavit in support of Authorization P‑17, but as I have previously noted, the contents of Sergeant Seward’s Briefing Notes accord with the observations made by the investigators as recorded in their own Incident Briefing Reports that were all available to Constable Carr and to which I have earlier referred.

[427] Even more important to the issue now under consideration, Constable Carr had himself attended many of the briefings at which the various concerns about a possible “scam” or “bogus” kidnapping being orchestrated by Peter Li and about the veracity and reliability of Mary Li, Ken Feng and others were raised.

[428] When Constable Carr was asked about these issues and why he made no reference to them in his affidavit in support of Authorization P‑17, he acknowledged that the concerns had been raised but testified that they were not serious concerns. He said they were raised in the context of “brainstorming” and “keeping an open mind”. He said that the concerns expressed relating to a possible “scam” or “bogus” kidnapping orchestrated by Peter Li was never considered as an alternate theory.

[429] I cannot accept that evidence. I find that his omission of these important concerns was because to include them would undermine the grounds to believe that the offences for which he was seeking Authorization P‑17 had been or were being committed.

[430] After considering the entirety of the evidence on this voir dire, I am satisfied that Constable Carr failed abysmally in his duty to make full and frank disclosure.

[431] In my opinion he was obligated to fully advise the issuing judge of the police concerns regarding the possibility that Peter Li was orchestrating a “scam” to obtain money for his own purposes.

[432] The police concerns about a possible “scam” or “bogus” kidnapping were not speculative. They were based upon information obtained from numerous sources and circumstances. Most importantly the police had independent irrefutable evidence from their own investigation that Peter Li had access to almost $1 million in cheques and cash that he was not prepared to access to gain his own freedom. While the existence of those cheques and funds were made known to the issuing judge, no reference was made to the police concerns as to why those funds were not being accessed by Peter Li.

[433] I am also satisfied that Constable Carr was obligated to be more forthright about the well-founded concerns the police had with respect to the credibility of Mary Li and others upon whose statements and actions he relied in obtaining Authorization P‑17 and that were far more serious than those that existed when his earlier affidavit had been sworn.

[434] Although Constable Carr did include some information in his second affidavit in support from an informant suggesting that Mary Li and Ken Feng might have the most to gain from Peter Li’s death, he did not provide evidence or any details of the substantial concerns identified by Sergeant Seward calling into question the veracity of Mary Li or the degree of her co-operation and that of other family members in the police investigation.

[435] In the context of that omission of information obviously relevant not only to the investigation but also to the question of whether a kidnapping had in fact occurred, Constable Carr was deliberately selective in placing before the authorizing judge that which supported the result he wanted and omitting that which tended to the contrary conclusion. That conclusion is crucially important when considering the appropriate way in which to deal with that selectivity and failure to make full and frank disclosure within the confines of a Garofoli review and my obligations on such a review.

[436] Simply stated, the first question to be answered is can the omission of relevant information from the affidavit in support of Authorization P‑17 be remedied by amplification to establish reasonable and probable grounds to believe that the offences of the kidnapping, extortion and conspiracy to commit murder of Peter Li, Jennifer Pan and Xiao Chen had been or were being committed?

[437] The question of amplification in this case is not the same as in the usual case where there has been erroneous or misleading information placed before the issuing judge. In those cases, Araujo tells us barring issues that may fall to be considered under “subversion of the process”, the usual remedy will be to excise the offending information. The reviewing judge must then determine whether after such excision sufficient reliable evidence continues to exist to support a finding of reasonable and probable grounds to believe that the offence in issue had been committed.

[438] I adopted that approach when I determined that Authorization P‑12 was not invalid by reason of the inclusion of misleading information and after consideration of the amplified record on this voir dire.

[439] In the case of Authorization P‑17, however, the concerns regarding misleading information arise from the omission of relevant material, which not only resulted in the failure to make full and frank disclosure, but also misled by distorting the investigative facts relied upon so as to cloak them with an aura of reliability that full and frank disclosure would have dispelled.

[440] It is, however, still necessary to determine whether Authorization P‑17 can be saved by reading into the affidavit in support the information contained in the various briefing reports, as well as Sergeant Seward’s observations to which I have referred to in paras. 416 to 425 of this ruling.

[441] If I were to amplify Authorization P‑17 to include that information, what would emerge would be an affidavit in support of Authorization P‑17 that would disclose at least three possible criminal scenarios:

1. The scenario postulated by Constable Carr in his affidavit (without amplification): the kidnapping for ransom of Peter Li, Jennifer Pan and Xiao Chen; the continuation of threats on their lives by those whose conversations the police had intercepted and subjected to surveillance; and the continued extortion of Peter Li’s family and other associates.

2. A second scenario would be that considered by the police as a possible “scam” or “bogus” kidnapping: that Peter Li had staged his disappearance and that of his wife and his friend Xiao Chen and was thereafter extorting millions of dollars from his family and associates for his own purposes.

3. Another scenario to emerge from the amplified information would see Mary Li and Ken Feng as the perpetrators of the crimes alleged for their own purposes.

[442] The problem that would have resulted for the issuing judge and now arises for me upon review whether, as amplified by inclusion of the significant material omission that ought to have been included the affidavit in support of Authorization P‑17 is capable of establishing by sufficiently reliable evidence that the criminal acts postulated by Constable Carr in the first scenario had been or were being committed.

[443] I am satisfied that it could not do so. The independently verifiable evidence (which must be resorted to because of the unreliability of the assertions of Mary Li and others) is not capable of establishing that any one of the scenarios is more likely than another. Authorization P‑17 must accordingly be set aside.

[444] If I am wrong in that result under an amplification analysis, I would, in any event, reach the same conclusion under the alternate submission regarding the “subversion of the judicial authorization process” advanced by the accused. My reasons for that conclusion follow.

(2)

Subversion of the judicial authorization process

[445] In Araujo, LeBel J. referred to the decision of the Nova Scotia Court of Appeal in R. v. Morris (1998), 134 C.C.C. (3d) 539 at 553, [1998] N.S.J. No. 492 (C.A.) (QL) [Morris], for the proposition that:

These cases stress that errors, even fraudulent errors, do not automatically invalidate the warrant.

[My emphasis in bold.]

[446] The preventive function that the judicial authorization process preserves was addressed by me at length in considering the constitutionality of s. 184.4 of the Code and I will not now repeat the considerations addressed in Duarte by the Supreme Court of Canada in concluding that the obligation of the police to obtain the approval of an independent judicial officer is fundamental to the protection of s. 8 Charter rights.

[447] The obligation of the police to make full and frank disclosure of material facts to an authorizing judge is fundamental to the process established by Parliament to protect those fundamental rights. Without that full and frank disclosure, independent judicial approval for the invasion of privacy cannot achieve that purpose.

[448] As I have previously noted, LeBel J. observed in Araujo (at ¶47) that “[a] corollary to the requirement of an affidavit being full and frank is that it should never attempt to trick its readers”. Further in that paragraph he went on to say:

There is nothing wrong-- and much right-- with an affidavit that sets out the fact truthfully, fully and plainly. Counsel and police officers submitting materials to obtain wiretapping authorizations should not allow themselves to be led into the temptation of misleading the authorizing judge either by the language used or strategic omissions.

[My emphasis.]

[449] I find that Constable Carr did allow himself to be led into that temptation to mislead by strategic omission.

[450] Although I have undertaken an amplification analysis that leads to the same conclusion I have reached with respect to subversion of the process, I must record that in my view the more correct analysis to apply is the subversion of the judicial authorization process analysis.

[451] In reaching that conclusion, I apply the observations of LeBel J. in Araujo (at ¶59) that:

[59] …The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protection of everyone's privacy interests (Hunter v. Southam Inc., supra, at p. 160), amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham.

[452] I am satisfied that in this case the deliberate omission of information that had a tendency to not only disprove the offences alleged to have been committed but also cast serious doubt upon the reliability of statements by the primary complainant upon which the police relied to establish the commission of those offences so subverted the authorization process that it virtually became a sham.

[453] I must also observe that in pursuing Authorization P‑17 without full and frank disclosure, Constable Carr foreclosed the possibility of obtaining an authorization that may well have been granted to investigate ongoing criminal conduct not only by the suspects identified in Authorization P‑17, but also by Peter Li as well as perhaps Mary Li and Ken Feng whose motives and evidence were so much in issue.

V. SUMMARY OF CONCLUSIONS

[454] In summary, I have reached the following conclusions and make the following orders:

2. I declare that s. 184.4 of the Code as enacted is constitutionally invalid legislation.

4. The Attorney General for Canada shall have liberty to apply to extend that stay period.

5. In granting that stay for that very lengthy time I expect that my interpretation of the provisions of s. 184.4 of the Code will be observed by peace officers who implement that section after the publication of this ruling.

6. That interpretation requires that:

(a) the “unlawful acts” to which s. 184.4 of the Code may apply are limited to the offences enumerated in s. 183 of the Code;

(b) the communications that can be intercepted pursuant to ss. 184.4(c) of the Code are those between the “perpetrator” (including any aiders or abettors) of the anticipated serious harm and the actual “victim” or “intended victim” of that harm; and

(i) intercept only those private communications that may be lawfully intercepted pursuant to ss. 184.4(c); and

(ii) immediately, and with the least delay possible in the circumstances, also take all steps necessary to obtain a judicial authorization under Part VI of the Code.

7. Leaving aside issues of constitutional invalidity, in the circumstances of this case, the manner of implementation of s. 184.4 of the Code by the police did not breach any Charter rights of the accused.

8. The R.C.M.P. policy contained in the E‑Division (British Columbia) Electronic Monitoring and Surveillance Manual that endorses a 24‑hour waiting period after the issuance of an authorization under s. 184.4 of the Code before commencing preparation of a judicial authorization under s. 186 or s. 188 of the Code is arbitrary and not sanctioned by an interpretation of s. 184.4 of the Code that ensures constitutional compliance.

9. The only communications that were properly intercepted pursuant to ss. 184.4(c) of the Code were those communications between: Peter Li and Mary Li, Michael Li, Ken Feng; “BB” and Michael Li; “unknown persons” and “BB” and Michael Li; and between “Q” and Mary Li (at 6:25 p.m. on February 26, 2006).

10. The issuance of Authorization P‑12 terminated the implementation of s. 184.4 of the Criminal Code.

11. Authorization P‑12 was validly issued pursuant to s. 186 of the Code.

12. The issuance of Authorization P‑17 terminated the lawful interception of communications under Authorization P‑12.

13. Authorization P‑17 is invalid by reason of the failure of the affiant to make full and frank disclosure of material facts to the extent that:

(a) amplification by way of inclusion of the omitted material facts does not provide sufficient reliable evidence to establish reasonable and probable grounds to believe that the offences alleged had been or were being committed; and

(b) the authorization process was subverted.

14. No communications purportedly intercepted pursuant to Authorization P‑17 were intercepted pursuant to lawful authority.

[455] In reaching all of those conclusions and making all of those declarations and orders, I have not ruled upon either the admissibility or inadmissibility at trial of any intercepted communication either by reason of the application of s. 24 of the Charter or under common law rules of evidence.

"Mr. Justice Davies"

July 29, 2008 – Revised Judgment

Corrigendum to the Ruling on Constitutional Validity of s. 184.4 of Criminal Code and Validity of Wiretap Authorizations P-12 and P-17 issued advising that On February 22, 2008, I issued this Ruling (reported under neutral citation, 2008 BCSC 211), under a mandatory publication ban imposed by s. 648 of the Code.

In paragraph 454(3) of this Ruling I ordered a stay of a declaration of the constitutional invalidity of s. 184.4 of the Code for “the longer of either 18 months or 30 days after the charges that are the subject of this proceeding have been resolved in this Court”.

I also, however, stated at paragraph 454(5) and 454(6) of this Ruling that:

6. That interpretation requires that:

(a) the “unlawful acts” to which s. 184.4 of the Code may apply are limited to the offences enumerated in s. 183 of the Code;

(i) intercept only those private communications that may be lawfully intercepted pursuant to ss. 184.4(c); and

(ii) immediately, and with the least delay possible in the circumstances, also take all steps necessary to obtain a judicial authorization under Part VI of the Code.

Counsel for the Crown and counsel for the Attorney General of Canada on notice to counsel for all of the accused, have brought to my attention concerns related to paragraph 454(6)(b) of this Ruling and sought clarification. They submitted that:

(1) a requirement that the police only intercept communications between the “perpetrator” (including any aiders or abettors) of the anticipated serious harm and the actual “victim” or “intended victim” of that harm is more restrictive than the plain wording of the provisions of s. 184.4(c) which allows interception of communications involving either the perpetrator or the victim or intended victim of the anticipated serious harm; and

(2) the restrictive interpretation in paragraph 454(6) (b) of this Ruling does not accord with certain findings of fact and orders that I made in this Ruling.

I agree with both submissions and have determined that paragraph 454(6)(b) of this Ruling should be amended as follows:

“the communications that can be intercepted pursuant to s. 184.4(c) of the Code are those in which one of the parties to the communication is the “perpetrator” (including any aiders or abettors) of the anticipated serious harm or the actual “victim” or “intended victim” of that harm which the peace officer believes on reasonable and probable grounds is immediately necessary to prevent an unlawful act that would cause serious harm to any person or property;".

I thank all counsel for their attention to this issue and their helpful submissions.

“Davies J.”

September 17, 2008 – Revised Judgment

Please be advised that the attached Ruling on Constitutional Validity of s. 184.4 of Criminal Code and Validity of Wiretap Authorizations P-12 and P-17 have been edited.

· The following notation has been added to the face page:

“The publication ban expired on September 9, 2008.”