R. V. WILLICK QB07319 Date of Judgment: September 12, 2007 Number of Pages: 13 QUEEN'S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 324 Date: 2007 09 12 Docket: J. No. of 2006 Judicial Centre: Saskatoon RE RELEVANCE OF WIRETAP TO CHARTER APPLICATION BETWEEN: HER MAJESTY THE QUEEN and WENDELL WILLICK Counsel: Sandeep S. Bains for the Crown Daryl E. Labach for Wendell Willick JUDGMENT POPESCUL J. September 12, 2007 INTRODUCTION [1] This is an application by the accused, Wendell Willick, for an order thatevidence obtained by way of a telephone interception be ruled inadmissible because it isirrelevant. Alternatively, Mr. Willick seeks exclusion of the intercepted communicationon the basis that it was conducted in violation of s. 8 of the Canadian Charter of Rightsand Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act1982 (U.K.), 1982, c. 11, and therefore ought to be excluded under s. 24(2). [2] The accused stands charged as follows:WENDELL WILLICK, of the City of SASKATOON, inthe Province of Saskatchewan, stands charged that he, the saidWendell Willick did1. BETWEEN THE 8TH DAY OF JANUARY, A.D.1996 AND THE 23RD DAY OF NOVEMBER A.D.1999 AT OR NEAR SASKATOON, SASKATCHEWANBEING IN A POSITION OF TRUST OR AUTHORITYTOWARDS [THE COMPLAINANT], A YOUNGPERSON, DID FOR A SEXUAL PURPOSE TOUCHDIRECTLY THE BODY OF [L.S.], A YOUNGPERSON, WITH A PART OF HIS BODY TO WIT,HANDS AND PENIS, CONTRARY TO SECTION153(1)(a) OF THE CRIMINAL CODE. The indictment was amended on July 27, 2007, by consent, to read "153(1)(a)" ratherthan "153(a)". [3] The police believed that the accused sexually assaulted the complainant or alternatively had sexual contact with her while in position of trust and that it would be advantageous to their investigation to intercept telephone communication between the complainant and the accused wherein the complainant would attempt to engage the accused in conversation concerning the alleged improper activity. An authorization to intercept private communications was obtained from Provincial Court judge. The complainant consented to the procedure and did in fact contact the accused and engage him in conversation that was surreptitiously intercepted by the police. [4] transcript of the conversation was made. Both the Crown and the accused agreed that the transcript was an accurate transcription of the telephone conversation and that, for the purposes of this application, decision could be made on the basis of the transcription without the necessity of playing the actual recording in court. [5] The accused raises three arguments. These arguments can be summarized as 1. The evidence of the conversation is inadmissible because it is irrelevant. 2. The learned Provincial Court judge who issued the authorization did so in error because there was no basis upon which he could conclude that there were reasonable grounds to believe that information concerning the offences would be obtained through the interception sought and, therefore, the evidence ought to be excluded pursuant to s. 24(2). 3. The authorization to intercept private communications provides that the offences in which private communications may be intercepted were ss. 271(1) and 273.1(2)(c) of the Criminal Code, R.S.C. 1985, c. C-46, neither of which is the offence currently charged, and therefore there has been breach of s. of the Canadian Charter of Rights and Freedoms and the evidence obtained should be excluded pursuant to s. 24(2). ANALYSIS I. Issue No. Is the evidence of the conversation relevant? [6] I have read the transcript. After having done so, it is immediately evidentthat the contents of the communication are in fact "relevant". There is clearly nexus between the conversation of the complainant and the accused and the substance of the charge before the court. The complainant and the accused are obviously discussingintimate details of their relationship. The conversation is logically probative to the charge. The evidence is therefore, subject to any Charter application, admissible. II. Issue No. Did the learned Provincial Court judge who issued the authorization have sufficient evidence before him to do so? [7] The accused argues that the learned Provincial Court judge that authorized the private communications intercept had no basis for doing so. Section 184.2(3) of the Criminal Code stipulates that the judge to whom the application is made must be satisfied that there are reasonable grounds to believe that information concerning the alleged offence will be obtained through the interception sought. Because the police did not know for sure that the complainant would be able to elicit relevant communications from the accused, so goes the argument, this threshold requirement was not met. [8] The affidavit of the police officer that was before the learned Provincial Court judge in support of the request for the authorization to intercept private communications was filed with the court. That affidavit states that if the authorization to intercept private communications is granted, the police intend to have the complainant initiate communication with the accused regarding their alleged sexual activity in anticipation of eliciting responses from the accused that would provide evidence concerning the alleged offences. [9] The accused argues that such an intention amounts to pure speculation and falls short of what could be considered to be reasonable grounds to believe that information concerning the offence would be obtained through the interception sought. [10] It is important to note that this court does not conduct the review de novo. This court is not mandated to second-guess the issuing judge, but instead must merely examine the original material in order to determine whether there was an appropriate basis for the order. If there was sufficient affidavit evidence upon which the issuing judge could have granted the authorization, this court ought not to interfere. See R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] S.C.R. 1421, 60 C.C.C. (3d) 161. [11] The position of the Crown is that the police had reasonable and probable grounds to believe that the accused had committed offences. The complainant was prepared to initiate telephone call to the accused and engage him in conversation which would likely cause the accused to make admissions or statements which could be confirmatory of her allegations. Specifically, the investigating officer's affidavit states as 12. believe the complainant, [the complainant], is being truthful in her allegations and that her motive in reporting these incidents is to come to grips with her psychological needs and to bring these assaults to an open forum where the person responsible is held accountable. believe that the interception of the private communications of [the complainant] and Wendell Willick will afford evidence, concerning the sexual assaults upon [the complainant]. 13. [The complainant] has consented to have her private communications with Wendell Willick intercepted in order to assist the police in the investigation of the offences outlined above. 14. If the authorization to intercept private communications is granted, it is intended to have [the complainant's] intimate communication with Wendell Willick regarding the above sexual assaults recorded, in anticipation of eliciting responses from Wendell Willick that would provide evidence concerning these offences. [12] The learned Provincial Court judge certainly had some evidence from which he could conclude that information concerning the offence would be obtained through the interception sought when the complainant engaged the accused in conversation involving their alleged sexual activity. It is reasonable to presume that such scenario could quite likely result in producing evidence highly relevant to the investigation. As a result, I find that there the learned provincial court judge did in facthave sufficient evidence before him to issue the telephone intercept authorization. III. Issue No. Can evidence obtained pursuant to valid authorization to intercept private communications be used in relation to an offence not specified in the authorization? [13] The authorization to intercept private communications contains the following provision: 4. The offences in respect in which private communications may be intercepted are offences contrary to Sections 271(1) and 273.1(2)(c) of the Criminal Code of Canada and any conspiracy, or attempt to commit, or being an accessory after the fact or any counseling procuring or inciting in relation to such offences. [14] This provision was undoubtedly intended to comply with s. 184.2(4)(a) of the Criminal Code that states: 184.2(4) An authorization given under this section shall (a) state the offence in respect of which private communications may be intercepted. [15] Section 183 of the Criminal Code specifies the offences for which authorizations may be obtained. Section 183(a)(xliv) includes s. 271, (sexual assault). [16] It is noteworthy that also included in the authorization is s. 273.1(2)(c). However, this section is not one of the offences listed within s. 183(a). In fact, it is not even section that creates an offence. Rather, it is the section that deals with defining the term "consent" for the purposes of sexual assault offences in ss. 271 to 273. Also of note is that the offence with which the accused is currently charged, namely, s. 153(1)(a), is not an offence for which wiretap authorization can be granted because it is not listed in [17] At the time that the authorization was granted the police were investigating complaint that eventually led to the accused being charged with offences under both ss. 271 and 153(1)(a) of the Criminal Code. In the affidavit filed in support of the application is the following paragraph: 2. The offence in respect of which an Authorization to Intercept Private Communications where consent is given is being sought is a) Sexual Assault contrary to Section 271(1) of the Criminal Code of Canada b) Abuse of Position of Trust, Power or Authority contrary to Section 273.1(2)(c) of the Criminal Code of Canada. [18] Obviously, including the reference to s. 273.1(2)(c) is an error in that it is neither charge listed in the definition section nor section that creates an offence under the Criminal Code. However, s. 271(1) was an offence under investigation and one for which an authorization could be granted. [19] The accused was eventually charged with both ss. 271(1) and 153(1)(a) of the Criminal Code. After the preliminary inquiry, he was committed to stand trial on the charge under s. 153(1)(a), but was discharged of the sexual assault charge (s. 271(1)). As result, the situation that now presents itself is that the Crown is now seeking to introduce evidence on charge of s. 153(1)(a) that was collected pursuant to an authorization granted in relation to the investigation of an offence under s. 271(1). [20] The position of the accused is that the authorization specifies the offences for which private communications may be intercepted and the evidence collected is limited to those specified offences. Because the offence under s. 153(1)(a) is not included in the authorization, the evidence obtained was collected illegally. He argues that evidence illegally obtained in this manner ought to be considered to be conscriptive evidence, within the meaning of R. v. Stillman, 1997 CanLII 384 (SCC), [1997] S.C.R. 607, 113 C.C.C. (3d) 321, and therefore once it is established that breach of s. has occurred, the evidence ought to be automatically excluded without the necessity of s. 24(2) analysis, because the admission of the evidence would render the trial unfair. [21] However, after analyzing the provisions of the Criminal Code and therelevant case authorities, I have concluded that there is no Charter breach, and that theevidence is, in fact, admissible and ought not to be excluded. [22] The authorization clearly permits the police to intercept privatecommunications in relation to an offence under s. 271(1) of the Criminal Code. Thatinvestigation was live and bona fide at the time that the authorization was obtained. The law in this country is that evidence of other crimes revealed during the course of lawful intercept process does not render the evidence obtained inadmissible in relation to an offence not named in the authorization. The focus, therefore, is on whether the interception was lawfully obtained and executed and not on what is discovered. [23] In R. v. Welsh (1977), 1977 CanLII 1215 (ON CA), 32 C.C.C. (2d) 363 at 373-74, 74 D.L.R. (3d) 748, the Ontario Court of Appeal made the following statement: In my opinion, an interception complies with both the Code and the authorization if it is made in respect to stated offence, i.e., for the purpose or object of investigating or gathering evidence with respect to the named offence. The fact that the pursuit of the objective of the authorization reveals evidence of other crimes does not affect the lawful character of the interception. It cannot be said that the evidence in this case is rendered inadmissible on this ground. [Emphasis in original] [24] Subsequently, the Supreme Court of Canada in R. v. Commisso, [1983] S.C.R. 121, 1983 CanLII 160 (SCC), C.C.C. (3d) 1, followed the reasoning in R. v. Welsh and held that evidence obtained pursuant to valid authorization in relation to the investigation of specified offences can also be used in relation to other non-specified offences. [25] Here, the police obtained a valid authorization to intercept privatecommunications in relation to an offence under s. 271(1) of the Criminal Code. Duringthe investigation of that charge, they obtained evidence which is relevant to an offenceunder s. 153(1)(a). The fact that the offence of s. 153(1)(a) is not named in theauthorization nor included as an offence for which an authorization to intercept privatecommunications could be obtained, does not affect the admissibility of the evidence. The simple principle being followed is that as long as the authorization to intercept private communications was validly obtained and executed in bona fide way, evidence of other offences gathered during the valid process is admissible. [26] There is no evidence before the court to suggest or from which it could be inferred that the police purposely navigated around the fact that offences under s. 153(1)(a) are not eligible for intercept authorizations. Clearly, the police believed they were pursuing an offence under s. 271(1) and in the course of that lawful intercept process, obtained evidence relevant to another offence. [27] Therefore, there is no Charter breach. [28] Alternatively, even if there was breach of s. due to an invalid authorization to intercept private communication or because the offence before the court is not one specified in the authorization, such breach does not lead to automatic exclusion under s. 24(2) of the Charter as the accused asserts. The accused relies upon the reasoning of the Supreme Court of Canada in R. v. Stillman, supra, for "automatic exclusion" without engaging the weighing process outlined in s. 24(2). The accused argues that the evidence under consideration should be classified as conscriptive evidence. According to the reasoning in Stillman, if the evidence is conscriptive and the Crown fails to demonstrate on balance of probabilities that the evidence would have been discovered by alternate non-conscriptive means, then its admissibility will render the trial unfair. Therefore, the court ought to, as general rule, exclude the evidence without considering the seriousness of the breach or the effect of exclusion on the repute of the administration of justice. In other words, the accused submits that because the wiretap evidence was obtained outside of the framework of the authorization, unless the Crown can prove that the evidence would have inevitably been discovered, admission of that evidence would render the trial unfair. As result, the accused argues, once the breach is established, there is no need to weigh the factors in accordance with s. 24(2). [29] However, disagree with the accused's characterization of the evidence under consideration as being "conscriptive". The law is clear that evidence produced as result of wiretap is non-conscriptive evidence. [30] In R. v. Babinski (2005), 2005 CanLII 789 (ON CA), 193 C.C.C. (3d) 172, 27 C.R. (6th) 45, the Ontario Court of Appeal confirmed that consent-based intercept that had been obtained without an authorization, prior to R. v. Duarte, 1990 CanLII 150 (SCC), [1990] S.C.R. 30, 53 C.C.C. (3d) 1, was not conscriptive. In light of the reasoning contained in Duarte, the participant telephone intercept conducted without judicial authorization was found to be in contravention of s. of the Charter. The issue then became whether the intercept evidence should be excluded under s. 24(2) of the Charter. The defence in Babinski, as was the case here, argued that the recording of the intercepted private communication ought to be characterized as conscriptive evidence because the consenting party essentially acted as police agent in the course of the conversation. The defence emphasized in that case, as was the case here, that the fact that the agent had initiated the conversation at the direction of the police, made the communication conscriptive. However, the Court of Appeal held that whether or not the consenting party was police agent had no bearing on whether the communication was conscriptive. The court relied upon cases such as R. v. Wijesinha, 1995 CanLII 67 (SCC), [1995] S.C.R. 422, 100 C.C.C. (3d) 410; R. v. Stillman, supra; R. v. Pope (1998), 129 C.C.C. (3d) 59, 1998 ABCA 267 (CanLII), 20 C.R. (5th) 173 (Alta. C.A.); and R. v. Rendon, [1997] O.J. No. 5505 (C.J. (Gen. Div.)) (QL), and upheld the Crown's position that the intercepted communications of an accused in violation of s. does not amount to conscriptive evidence for the purposes of s. 24(2) of the Charter. [31] The court, at paras. 37, 38 and 40 in Babinski, reasoned as follows: [37] The statements made by the appellant in the tape-recorded conversation certainly emanated from him. However, nothing in the circumstances in which the statement was made, or in the conversation itself, could possibly constitute state compulsion. Ms. Mead merely directed the conversation in way that was intended to elicit admissions concerning the break and enter. She in no way coerced or otherwise pressured the appellant to speak about the break and enter. The appellant was under no compulsion to speak to Ms. Mead and nothing she said compelled him to make the statements that he made. [38] The fact that the appellant did not know that the police were intercepting and recording the conversation was relevant to whether the appellant's privacy right was infringed. The surreptitious recording of the conversation denied the appellant the ability to choose his audience, an integral aspect of personal privacy: Duarte, supra, at p. 16. The fact that the appellant was denied his right to choose his audience does not mean that what he said to Ms. Mead was compelled. The surreptitious recording did not compel or coerce the appellant to speak. The recording was not conscriptive evidence in the sense described in Stillman. [40] The intercepted communication was non-conscriptive evidence and was properly admitted by the trial judge. [32] Therefore, even if the evidence was obtained in violation of s. 8 of theCharter, such evidence is considered to be non-conscriptive evidence. Where the evidence is non-conscriptive, the court ought to go on to do balancing as to whether or not the evidence ought to be excluded pursuant to s. 24(2) of the Charter. Where s. 24(2) is triggered, the analysis proceeds through three sets of factors: trial fairness, seriousness of the breach, and the effect of exclusion. See R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265, 33 C.C.C. (3d) 1. [33] In this case if there was a breach it was not serious and was inadvertent -the result of unmindful draftsmanship. There is no evidence of bad faith. There is noevidence of manipulation. As a result, I view the seriousness of the breach, if there wasone, to be minimal, and to admit the evidence would not bring the administration ofjustice into disrepute. CONCLUSION [34] Accordingly, I find that the evidence is relevant and admissible in that itdoes not violate the accused's s. 8 rights. Even if it did, the evidence is non-conscriptive and ought not to be excluded under s. 24(2) because the breach was not serious and inadvertent and admitting the evidence would not bring the administration of justice into disrepute. Therefore, the accused's applications are dismissed. J. M.D. POPESCUL
This is an application by the accused for an order that evidence obtained by way of a telephone interception be ruled inadmissible because it is irrelevant. Alternatively, the accused seeks exclusion of the intercepted communication on the basis that it was conducted in violation of s. 8 of the Charter and ought to be excluded under s. 24(2). The accused is charged with abuse of a position of trust contrary to s. 153(1)(a) of the Code. HELD: The evidence is admissible. The accused's application is dismissed. 1) After examining the transcript of the conversation, it is immediately evident that the contents of the communication are relevant. The complainant and the accused are discussing the intimate details of their relationship. The conversation is logically probative to the charge. 2) The learned provincial court judge did in fact have sufficient evidence before him to issue the telephone intercept authorization. The complainant was prepared to initiate a telephone call to the accused and engage him in a conversation which would likely cause the accused to make admissions or statements which could be confirmatory of her allegations. 3) The authorization clearly permits the police to intercept private communications in relation to an offence under s. 271(1) of the Code. That investigation was live and bona fide at the time that the authorization was obtained. The law in this country is that evidence of other crimes revealed during the course of a lawful intercept process does not render the evidence obtained inadmissible in relation to an offence not named in the authorization. The focus is on whether the interception was lawfully obtained and executed, not on what is discovered. Here the police obtained a valid authorization to intercept private communications in relation to an offence under s. 271(1) of the Code. During the investigation of that charge, they obtained evidence which is relevant to an offence under s. 153(1)(a) of the Code. The fact that the offence of s. 153(1)(a) is not named in the authorization nor included as an offence for which an authorization to intercept private communications could be obtained, does not affect the admissibility of the evidence. Therefore, there is no Charter breach. 4) Even if the evidence was obtained in violation of s. 8 of the Charter, such evidence is considered non-conscriptive evidence. Where the evidence is non-conscriptive, the court ought to go on to do a balancing as to whether or not the evidence ought to be excluded pursuant to s. 24(2) of the Charter. The factors to be considered are trial fairness, seriousness of the breach and the effect of exclusion. In this case if there is a breach, it was not serious and was inadvertent, the result of unmindful draftsmanship. There is no evidence of bad faith. There is no evidence of manipulation. The seriousness of the breach, if there was one, was minimal, and to admit the evidence would not bring the administration of justice into disrepute.