Ontario Criminal

Criminal Law

Charter of Rights and Freedoms

Unreasonable search and seizure [s. 8]

Trial judge erred in holding that accused’s Charter rights were breached

Accused’s son was under investigation for murder. Police obtained wiretap authorization naming four “principal known persons” including accused and his son. Accused was believed to have knowledge of his son’s involvement in murder and to have blocked police access to his son during initial investigation. As result of intercepted communications, police formed belief accused was involved in drug trafficking. On arresting him, police discovered large quantity of cash and heroin in car in which accused was travelling. At trial on drug charges, accused challenged validity of wiretap authorization. Trial judge granted application, ordered exclusion of seized heroin and cash, and accused was acquitted. Crown appealed. Appeal allowed. Acquittal was set aside and new trial was ordered. Test which reviewing judge was to apply was whether, in light of record amplified on review, ITO contained sufficient reliable evidence that might reasonably be believed on basis of which authorizing justice could have concluded that conditions precedent required to be established were met. Threshold for naming person in affidavit and authorization as “known person”, within meaning of s. 185(1)(e) of Criminal Code, was not onerous. Trial judge’s ultimate conclusion that “all we have is the simple fact of a father and son relationship and nothing else” resulted from his assessment of evidence in piecemeal fashion. When evidence was assessed cumulatively, taking into account larger context, it went much further: (i) accused’s son was prime suspect in murder; (ii) son lived with accused; (iii) son worked at his father’s pizza business and continued to do so after murder; (iv) information obtained by police led them to believe two of son’s friends were present with him at time of murder; (v) day after murder, at least one of those friends visited pizza shop when son was not there, but accused was; (vi) accused was less than candid in what he told officers who visited his pizza store; and (vii) accused’s driving on two occasions strongly suggested he was aware he was under police surveillance. Trial judge erred in holding that accused Charter rights were breached because ITO did not contain sufficient evidence to meet “may assist” standard.

R. v. Hafizi (2016), 2016 CarswellOnt 19469, 2016 ONCA 933, E.E. Gillese J.A., Paul Rouleau J.A., and David Brown J.A. (Ont. C.A.); reversed (2014), 2014 CarswellOnt 8547, 2014 ONSC 3547, Robert N. Beaudoin J. (Ont. S.C.J.)

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