R. v. Largie – A Restatement of the Law on Participant Surveillance
On August 11, the Ontario Court of Appeal (OCA) released its unanimous decision in R. v. Largie, 2010 ONCA 548. The case discusses Gavra and Karl Largie’s appeal of their convictions for second degree murder and manslaughter, respectively. Of the several grounds of appeal argued by these seemingly desperate appellants, the one regarding the constitutionality of s. 184.2 of the Criminal Code warrants the most interest. Subsection (1) of s. 184.2 permits the police to intercept private communications as long as the following two requirements are fulfilled: (i) the originator of the communications or the intended recipient of the communications has consented to the interception; and (ii) a judge authorizes the interception. This practice is referred to as “participant surveillance”. The two Largies argued that s. 184.2 is unconstitutional because investigative necessity is not a requirement for judicial authorization. In the alternative, the Largies argued also that the evidence obtained from the interceptions should have been excluded because the judge who authorized the interception rubber stamped the application as opposed to acting as an “independent arbiter”.
You Better R-E-S-P-E-C-T or Else
The facts of the case reflect the contemporary self-obsession with respect and maintaining one’s territory in gang culture. The two Largies were accused of participating in the murder of Mohamoud Ahmed. They were part of a group of men from the Malvern area of Scarborough, Ontario, that went in search of a person from a rival group that had apparently disrespected them on their territory. Ahmed was suspected of being that person, and was hit over the head with a metal pipe and shot to death. Later, it was revealed that Ahmed had not perpetrated the act of disrespect that apparently justified his death.
It was unclear what role the Largies played in the murder until the police came across an informant who learned about the details of the murder from the accused. According to the informant, Gavra told him that he shot the man, while Karl froze. Pursuant to s. 184.2, the police applied to a judge to intercept private communications between the informant and the Largies. In support of their application, the police provided the judge with the consent of the informant, CPIC records, a statement of the informant, and a robbery complaint made by Ahmed.
The Requirements under s. 184.2
The OCA ultimately dismissed both of the Largies’ arguments in regards to s. 184.2. Watt J.A. on behalf of the unanimous court held that investigative necessity was not a requirement for participant surveillance. Whereas the Largies argued that both probable cause and investigative necessity were constitutionally required, the OCA held that only probable cause was required. Due to the lack of supporting precedent, Largies relied upon the presence of investigative necessity in s. 186(1)(b) to support their position. After comparing the provisions on party surveillance and third party surveillance, Watt J.A. stated,
Some discrepancies exist between the participant and third party surveillance schemes. Of importance here is the absence from s. 184. 2 of any requirement that the affidavit disclose and the judge find investigative necessity. Section 184.2 contains no equivalent of either s. 185(1)(h) or s. 186(1)(b).
This analysis yielded the conclusion that there was no legislative intent that investigative necessity be required for participant surveillance.
The Governing Principles
The state of the law on participant surveillance was summarized neatly by Watt J.A. at paragraphs 39-40. According to R. v. Duarte,  1 S.C.R. 30, s. 184.2 is subject to the requirements in s. 8 of the Charter. The state must meet the standard explicated in Hunter v. Southam Inc.,  2 S.C.R. 145, which is reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search. The decision in R. v. Garofoli,  2 S.C.R. 1421, excluded the possibility of any lesser minimum requirements, given the intrusive nature of electronic surveillance.
The above restatement of the law is uncontroversial. A more controversial issue regarding s. 184.2 is the Largies’ argument regarding the independence of the judge who authorized the participant surveillance. Watt J.A. did not seem to question how the judge could authorize the police`s application after only one hour of deliberation, even though she had been submitted a 240 page application. He stated that “[t]he record is naked of any evidence to rebut the presumption that the authorizing judge discharged her statutory and constitutional obligations.” Although Watt J.A. did save himself by pointing out that the Largies did not challenge the trial judge’s review of the authorizing judge’s decision, the Largies did provoke the question: had the authorizing judge rubber stamped the application?
It would be dangerous territory to require a judge to satisfy minimum time periods for certain tasks – such a proposition would be absurd given that individuals process information differently and different of tasks require varying amounts of time. However, it is my opinion that Watt J.A. too quickly dismissed the Largies’ argument regarding the time that it took the authorizing judge to review the application. In order for the public to have confidence in the justice system, judges must not only be independent, but they must also be perceived to be independent. There is a perception that the authorizing judge did not read the almost three hundred pages that were given to her. Whether or not all of those pages were required to be read is debatable. It is possible that the police provided more information than was necessary, and that the judge had more than enough information to authorize the application. At the same time, it is also understandable, given the assumption that the judge would have read the entire application, why the Largies would bring up such an argument. Accordingly, more attention should have been paid to the issue of the perception of independence.