R. v. Bisson

The Court -- We are all of the view that this appeal as of right should be dismissed. The trial judge found that the affidavit material presented to the authorizing judge contained an error of non-disclosure relating to the retraction of Eric Lortie, a failure to state his age, and an error in including him as a target and accomplice. Having found such errors, the trial judge proceeded to vitiate the wiretap authorization finding that the police officer deliberately misled the authorizing judge. In so doing, the trial judge fell into error.

I. As stated in R. v. Garofoli, [1990] 2 S.C.R. 1421, errors in the information presented to the authorizing judge, whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselves lead to automatic vitiation of the wiretap authorization as was done by the trial judge. The trial judge should have examined the information in the affidavit which was independent of the evidence concerning Eric Lortie in order to determine whether, in light of his finding, there was sufficient reliable information to support an authorization. Proulx J.A., writing for the Quebec Court of Appeal, [1994] R.J.Q. 308, 87 C.C.C. (3d) 440, 60 Q.A.C. 173, carefully reviewed and analyzed the affidavit after excluding the paragraphs directly affected by the retraction. On the basis of this analysis, we are satisfied that there was sufficient independently verifiable information which was not affected by the trial judge's finding and upon which an authorization could reasonably be based.

II. The appeal is therefore dismissed.