Authorization to Intercept Private Communications Upheld as Valid
Justice Michelle Fuerst, Justice Michal Fairburn and Scott Fenton
Facts: Police were investigating the stabbing death of a man outside a nightclub in Ottawa’s Byward Market district. The prime suspect was Ahmed Hafizi. The police sought a Part VI authorization to intercept the communications of Ahmed Hafizi, and three other named persons, two of Ahmed’s friend, and his father, the respondent on appeal. The affidavit set out the grounds to believe Ahmed inflicted the fatal wound and that his two friends assisted him during and after the stabbing. The affidavit went on to state that the respondent “had knowledge of the actions of his son.” In support, the affidavit detailed how two men resembling Ahmed’s friends attended at the respondent’s pizza shop the day after the stabbing. The affidavit also detailed two instances in which the respondent was observed driving his vehicle in a manner officers believed was designed to detect surveillance (i.e., making u-turns and driving aggressively). The affidavit went on to describe how, when police attended to interview Ahmed, having followed him to the respondent’s pizza shop, the respondent told police that Ahmed was at home, and provided them with a telephone number. Ahmed was observed exiting the pizza shop approximately an hour after this interaction. Finally, the affidavit included information from an informant, who had “third hand” information that the respondent was heard saying it was better the victim was killed, rather than his son.
As a result of the interception of the respondent’s communications, police formed the belief that the respondent was travelling to Toronto for the purpose of obtaining drugs. On his return to Ottawa, police stopped the vehicle he was travelling in, arresting the driver and the respondent for trafficking. A search incident to arrest revealed a quantity of cash and heroin in the trunk.
At trial, the respondent sought a declaration that the wiretap authorization constituted a breach of his rights under s. 8 of the Charter and an order excluding the evidence under s. 24(2). The trial judge granted the application and the respondent was acquitted. The Crown appealed, alleging that the trial judge failed to conduct the contextual analysis of the grounds in support of the wiretap authorization and substituting his own views for that of the issuing justice, and erred in his analysis under s. 24(2) by imputing improper intentions to the affiant of the Information to Obtain in the absence of any viva voce evidence from the officer.
Held: Appeal allowed, new trial ordered.
A Garofoli application is not a de novo hearing of the ex parte application for a warrant to search: R. v. Garofoli,  2 S.C.R. 1421, 1990 CarswellOnt 119 at p. 1452 [S.C.R.]; R. v. Sadikov, 2014 ONCA 72, 2014 CarswellOnt 752. On a Garofoli application, the test a reviewing judge must apply is whether, in light of the record amplified on review, the Information to Obtain contained sufficient reliable evidence that might reasonably be believed, on the basis of which the authorizing justice could have concluded that the conditions precedent for the authorization had been met: R. v. Nero, 2016 ONCA 160, 2016 CarswellOnt 2699. See also: R. v. Hall, 2016 ONCA 13, 2016 CarswellOnt 53, at paras. 47-48.
The threshold for naming a person in an affidavit as a “known person” in an authorization under Part IV of the Criminal Code is not onerous. Investigators must know the person’s identity and have reasonable grounds to believe that the interception of that person’s private communications may assist in the investigation of an offence: R. v. Beauchamp, 2015 ONCA 260, 2015 CarswellOnt 5412, at para. 105.
Here, the trial judge erred in law in adopting a piecemeal approach to the affidavit, considering only that evidence which directly suggested the respondent had knowledge of his son’s involvement in the offence, instead of considering that evidence in the context of the entire affidavit, which disclosed other evidence in support of the authorization. (See Beauchamp, supra, at paras. 85-89; R. v. Nero, 2016 ONCA 160, 2016 CarswellOnt 2699, at para. 68; R. v. Spackman, 2012 ONCA 905, 2012 CarswellOnt 16420, at para. 223.) Adopting the correct approach to the review of the affidavit, it is clear that the “may assist” standard to include the respondent as a Principal Known Person was clearly met.
Commentary: This brief judgment contains a helpful and succinct summary of the relevant principles regarding the standard of review on a Garofoli application.
R. v. Hafizi, 2016 ONCA 933, 2016 CarswellOnt 19469 (Ont. C.A.)