R v A 1994

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Between Her Majesty the Queen, and A, D, K and M
[1994] O.J. No. 3265
Ontario Court of Justice (General Division), Toronto, Ontario
Moldaver J. March 14, 1994.
(45 pp.)

Civil rights — Security of the person — Police surveillance - - Interception of private communications — Authorization, sufficiency of supporting affidavit — Reliability of informant - - Denial of right — Remedies, exclusion of evidence.

This was an application brought by four accused in a criminal trial to exclude intercepted private communications obtained pursuant to an authorization granted in 1992. The applicants were charged with conspiracy to commit murder and wilfully attempting to obstruct the course of justice by conspiring to murder a witness in a judicial proceeding. The information was granted based on information given to the police by an informant B. While incarcerated, B had provided information to a Constable of the penitentiary squad which implicated another inmate, one of the accused, in a plot to smuggle poison into the prison to kill unknown prisoners or prison guards and a plot to kill the complainant in the upcoming trial of the inmate. Thereafter four officers formed an investigatory team to determine whether it was feasible to obtain a wiretap authorization for the case. The head of the team, who did not actually participate in the investigation, instructed the officers to check on B's prior reputation for credibility and reliability as this was central to the officers being able to obtain a search warrant and to any subsequent questions with regard to the validity of the authorization received. Unfortunately, the officers did not investigate B thoroughly at all. One of the officers spent 10 minutes on the telephone with the warden of an institution at which B had reside and the others did nothing. This was notwithstanding that O, one of the officers, had serious misgivings with regard to B's credibility and reliability. The affidavit sworn by the head officer generally conveyed that while B had a considerable criminal record, he had now reformed. As well, B was represented as having been a reliable informant in the past and as having voluntarily returned from France to turn himself in as he had broken his parole on his last charge. He had provided the information to the officers voluntarily out of concern for his fellow prisoners and, especially, the guards. As the officers, and the court, subsequently discovered, B had a much more considerable criminal record than previously revealed. He had a record from the United States from 1962. As well, at the time he revealed the information about the conspiracy to the officer, he had other charges outstanding against him. Thus his motivation for speaking to the officers was likely to have been to avoid these charges. In the many reports from the institutions and prisons B had been in over the years, he was revealed to be a pathological liar whose propensity to assume false identities and to commit fraudulent acts rendered any information he provided highly suspect. His propensity to lie stemmed from a deep- rooted and seemingly incurable disease of the mind. The issue was whether this rendered the interception obtained unlawful.

HELD: The application was allowed and the evidence was ruled to be inadmissible. The affidavit presented to the Justice in support of the application for a warrant for a wiretap interception provided a grossly deceptive picture of B's reputation for credibility and reliability. Had the new evidence with regard to B's lack of trustworthiness been before the authorizing judge, that judge could not and would not have granted the authorization. As a result the ensuing interception of the private communications of the applicants was unlawful and constituted a violation of their rights under section 8 of the Canadian Charter of Rights and Freedoms. Any of the communications obtained without B's participation would not have been known or available without the Charter violation. This evidence was self- incriminating and went to the heart of the fairness of the trial. As a result they were ruled inadmissible under section 24(2). The information obtained where B was involved was real evidence and was not dependant on the Charter violation for its existence. Based on the seriousness of the Charter violation, amounting to a significant intrusion into the privacy rights of the applicants, and the delinquent conduct on the part of the investigating officers, the admission of this real evidence was inadmissible as its admission would be both detrimental and harmful to the administration of justice.

Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, ss. 8, 24(2).

Counsel:
C. Barry and D. Schille, for the Crown.
R. Darrah and D. Rose, for A.
D. Zbarsky and A. Mervin, for D.
Cynthia Fromstein, C. Adams, Peter Connelly, for K.
R. Richardson and Leslie Pringle for the accused M.
  1. THE COURT:— K, M, D and A, the applicants, are jointly charged in an indictment with the following offences: (a), conspiracy to commit murder; and (b), wilfully attempting to obstruct the course of justice by conspiring to murder a witness in a judicial proceeding.  Messrs. D and A face a further charge of counselling to commit murder.
  2. At the outset of the trial, counsel on behalf of all of the applicants moved to exclude from evidence certain intercepted private communications obtained pursuant to an authorization granted by Mr. Justice Hamilton on November 24, 1992.
  3. In a broad sense, the applicants have attacked the admissibility of these interceptions on the ground that they were obtained in violation of the applicants' section 8 Charter rights and that their admission into evidence could bring the administration of justice into disrepute.
  4. More specifically, the applicants have charged that the affidavit in support of the authorization was so rife with inaccuracies, due mostly to the nondisclosure of material information, that had the authorizing judge been aware of the true state of affairs, he could not and would not have granted the authorization.
  5. In this regard, it was conceded by all that the sole basis upon which the authorizing judge could have been satisfied that there were reasonable and probable grounds to believe, (a), that the specified crimes referred to in the affidavit had been or were being committed; and (b), that the interception of the private communications in question would afford evidence of such crimes, stemmed solely from the information which the police had obtained from an informant, one Denis Raymond Boutin. That being so, it was equally conceded that the credibility and reliability of Boutin, or lack thereof, of necessity, was central to the authorizing judge's decision to grant or refuse the authorization.
  6. According to the applicants, had Mr. Justice Hamilton been made aware, as he should have been, of the multitude of material facts which have been brought to light on the review before me, facts which serve to devastate, if not completely destroy, any semblance of credibility and reliability on the part of the informant, he could not and would not have granted the authorization.
  7. On behalf of the Crown, Mr. Schille, in his able argument, fairly conceded that the material facts which the applicants have uncovered and upon which they rely could reasonably have been discovered by the authorities and should have been brought to the attention of the authorizing judge. That said, be nevertheless parted company with the applicants regarding the impact and effect which these facts would have I on the decision of the authorizing judge. Simply put, Mr. Schille maintained that, based upon the record before the authorizing judge, as amplified on this review, there continue to be a basis for the decision to grant the authorization and therefore the impugned interceptions could not be said to have been unlawfully obtained.
  8. Having defined the issue, it of course becomes necessary to analyze the affidavit which was placed before Mr. Justice Hamilton as amplified on the review before me.  Before doing so, I think it important to set out the test by which I must be guided on an application of this nature.  That test was set out by Mr. Justice Sopinka, speaking for the majority of the court, in the case of R. v. Garofoli (1990), 60 C.C.C (3d) 161, (S.C.C.).  At page 188, he said:

    The reviewing judge does not substitute his or her view for that of the authorizing judge.  If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere.  In this process, the existence of fraud, nondisclosure, misleading evidence and evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
  9. With those principles in mind, let me begin with the affidavit which was placed before Mr. Justice Hamilton. It is found at tab 1 of exhibit 1.
  10. This affidavit was prepared and sworn to by Det. Sgt. Cavanaugh of the OPP. Det. Sgt. Cavanaugh is an expert in the area of wiretaps. He has had considerable training and experience in both the preparation of affidavits necessary to obtain authorizations as well as the installation and monitoring processes which follow. Det. Sgt. Cavanaugh was brought into this case on November 16, 1992, some six days after Boutin, then an inmate at Millhaven, had provided information to Const. Murray of the OPP penitentiary squad which implicated the accused A, a fellow inmate, in (a), a plot to smuggle poison into Millhaven for the purpose of killing unknown inmates and/or prison guards, and (b), a plot to kill an unknown witness on the outside who would be testifying in an upcoming trial.
  11. (As the case progressed, the witness in question, according to Boutin, turned out to be the complainant in an upcoming robbery trial against A.)
  12. Det. Sgt. Cavanaugh's sole function, as of November 16th, was to consider the feasibility of obtaining a wiretap authorization designed to intercept the private communications of A and others who, according to Boutin, we expected to play a role in the alleged plots. To that end, a meeting was arranged for November 16, 1992 in Toronto in order that Det. Sgt. Cavanaugh could be familiarized with the information which Const. Murray and his partner, Det. Galloway, had obtained in the course of their investigation into Boutin's allegations, which, by then, had been ongoing for almost a week.
  13. As well, that meeting was to be attended by Det. Insp. O'Brien, a senior OPP officer who had been brought into the case on November 12, 1992 and designated as the officer in charge of the entire investigation. The meeting was arranged for November 16 in Toronto, because it was on that day that Boutin was released from Millhaven and driven to Toronto by Murray and Galloway. Boutin had earlier arranged, through the assistance of A, to meet and probably live with the accused D in Toronto after his departure from Millhaven. According to Boutin, it was expected that D would be a co-conspirator who would assist him in carrying out both of the alleged plots. Thus, as of November 16, the focus of the investigation shifted to Toronto, with the idea being that Murray and Galloway would remain in Toronto where they would carry out surveillance on Boutin and receive information from him. Any such information would then be passed along to Det. Sgt. Cavanaugh for his consideration relative to an application for a wiretap authorization.
  14. At the meeting on the 16th, the roles of the various officers were clearly defined. Murray, Galloway and, to a lesser extent, O'Brien were to be the information gatherers. Cavanaugh was to play no part in the field operations; he would be totally dependent upon the other three officers for any information that might ultimately find its way into an affidavit, and he would be relying upon them to provide a complete and accurate picture of the material facts.
  15. Given his experience with wiretap authorizations, Det. Sgt. Cavanaugh knew only too well how critically important Boutin's reputation for credibility and reliability (both present and past) would be to the issuing judge should an authorization be sought. This concern was a particularly pressing one in this case, given that the probable cause precondition was then dependent solely on the word of Boutin, a man who had amassed an unenviable criminal record for offences of dishonesty over a 25-year period.
  16. O'Brien was fully aware as well of the importance of Boutin's credibility and reliability. Conversely, Murray and Galloway were relative newcomers to the world of wire-tapping. Murray was a complete novice, and Galloway's exposure had been limited. As a result, Det. Sgt. Cavanaugh took it upon himself to educate both Murray and Galloway. To that end, I find as a fact that Det. Sgt. Cavanaugh made it clear to both officers no uncertain terms, that they were to do a check on Boutin's prior reputation for credibility and reliability. The check not to be routine or cursory, but thorough and complete. The officers were to look for both positive and negative indicators.
  17. In so instructing Murray and Galloway, Det. Sgt. Cavanaugh knew only too well how imperative it was on an ex parte application to make full, fair and frank disclosure of any and all information material to the granting of an authorization. He knew as well that the failure to do so might render the validity of any ensuing authorization open to attack. Yet, despite his careful instructions concerning the importance of Boutin's prior reputation, Murray, Galloway and O'Brien seemingly paid little or no heed.
  18. While I will have more to say about this later on, for the moment, suffice it to say that Murray's efforts to comply with Det. Sgt. Cavanaugh's instructions amounted to a ten-minute cursory telephone conversation with the warden of the La Macaza Institute where Boutin had once resided. Galloway did nothing. O'Brien did nothing, that is, until shortly after the authorization had already been granted -- this, despite his sworn evidence before me that prior to November 24, he, as the officer in charge, had serious concerns and doubts about Boutin's credibility and reliability.
  19. The failure on the part of these officers to do a thorough and meaningful check into Boutin's background was serious indeed. Had they done so, they would have uncovered the many facts which have been exposed before me, facts so telling against the credibility and reliability of Boutin. The net effect of their conduct, which can at best be described as grossly delinquent, was the spawning of a distorted, misleading, incomplete and often inaccurate affidavit upon which the authorizing judge granted the application. For reasons which will become apparent, I am of the view that the affidavit which found its way to Mr. Justice Hamilton made a mockery out of the duty to disclose fully, fairly and frankly.
  20. I do not propose in these reasons to detail the content of the impugned affidavit except where necessary to point out inaccurate and/or misleading information.
  21. Instead, I intend to explore the impression which, in my opinion, the affidavit conveys about Boutin's credibility and reliability and which, I expect, it was intended to convey to the authorizing judge.
  22. Broadly speaking, the affidavit portrayed Boutin, as of November 24, 1992, as a reformed criminal who, for purely altruistic reasons, had come forward to report the poison plot and the witness plot. While the affidavit certainly contained Boutin's prior extensive Canadian criminal record, it would have been apparent to the authorizing judge that the last entry on that record was 1984, some eight years earlier.
  23. In paragraph 10(C) (i), it was disclosed that Boutin violated his parole by leaving for France in 1987, with four months remaining on a seven-year sentence for attempted hijacking, which he had been convicted of in 1979. The paragraph is silent as to the reason for Mr. Boutin's departure. No mention is made of Boutin's activities while abroad. Paragraph 10(C) (ii) follows, with Boutin voluntarily returning to Canada to "put his affairs in order." To this end, he surrendered to the police and began serving out the four-month remnant outstanding from the hijacking conviction.
  24. The affidavit then went on to describe how, during his four-month stay at Millhaven, Boutin and A had become friends and how this friendship culminated in A's request of Boutin regarding the poison and witness plots.
  25. Boutin's activities were then tracked from the time period immediately preceding his departure from Millhaven on November 16 to and including his stay in Toronto, up to November 20. Throughout this portion of the affidavit, various pieces of information which Boutin had provided to the police are shown to have been independently confirmed as accurate.
  26. In addition, paragraphs 10 (B) (iv) and (v) referred to the fact that during Mr. Boutin's stay at a federal institution in Quebec from 1979 to 1986, he provided reliable information to the prison authorities generally, and in specific, he passed along information on one occasion which prevented three fellow inmates from escaping.
  27. Paragraph 10(B) (vii) described how Boutin had come forward with the information regarding the two instant plots for the sole purpose of preventing the planned murders, particularly those of the prison guards. In paragraph 10(C) (v) (i), the affiant purported to lend credence to the alleged poison plot by pointing out there had been two recent deaths at Millhaven due to cyanide poisoning at a time when A would have been in that institution.
  28. (I pause here to note put on the review before me it was shown that the so-called "recent" deaths by poison had occurred some eight or nine years prior to 1992, when A would not have been at Millhaven.)
  29. Finally, in paragraph 10(B) (iii), the affiant attested to the fact that Boutin had been a member of the FLQ at the time of the hijacking occurrence, and that it was Boutin's belief that the inmates, including A, had taken him into their confidence because he was a known FLQ terrorist.
  30. From all of this, the picture emerges of man who, despite his lengthy criminal record, had remained out of trouble since 1984. As part of his overall reformation, he had voluntarily returned to Canada and surrendered himself to the authorities. Given his prior association with FLQ terrorists, had been taken into the confidence of A, but in view of his reformation, he had come forward primarily to spare the lives of innocent people at Millhaven from death by poison, the very method which had recently been responsible for several deaths. Moreover, even though Boutin's criminal record was unenviable, had nevertheless proved to be a credible and reliable informant in the past, and all signs pointed to his present trustworthiness. Indeed, based on all the information that Boutin had provided and the checks on his background, the affiant swore that he and the investigating officers believed Boutin to be both credible and reliable.
  31. In view of the picture presented to Mr. Justice Hamilton, it is hardly surprising that he granted the authorization.
  32. Let us now examine this affidavit against the backdrop of the additional information which has been placed before me, information which the Crown has conceded should have been before the authorizing judge.
  33. Perhaps the best place to begin is with that portion of the affidavit just mentioned, wherein the affiant swore that it was his own personal belief, as well as the belief of his fellow investigators, that Boutin was both credible and reliable.
  34. Cross-examination of the affiant, Det. Sgt. Cavanaugh, revealed that he had no basis for personally attesting to Boutin's credibility or reliability. Prior to the preparation and swearing of the affidavit, he had only met Boutin once, for about 20 minutes, during which time engaged in superficial conversation unrelated to the investigation. In view of this, Det. Sgt. Cavanaugh, a senior and experienced officer, had no basis for attesting to his personal belief in Boutin's trustworthiness; his doing so was misleading.
  35. Of equal if not greater importance is the fact that the same paragraph referred to a similar belief on the part of the investigators. In this regard, Det. Insp. O'Brien was no only one of the investigators; he was the officer in charge. As mentioned earlier, in his evidence before me, Det. Insp. O'Brien swore that as of the 24th day of November 1992 and earlier, he had serious concerns about Boutin's credibility and reliability. It is not important to detail the cause of these concerns except to point out that they went directly to the probable cause issue. It is important to observe that he apparently failed to bring these concerns to the attention of Det. Sgt. Cavanaugh. It is shocking, to say the least, to learn that on, the afternoon of the 24th, several hours after the authorization had been obtained, Insp. O'Brien was on the phone to Det. Lynch, a fellow OPP officer in Ottawa, with a view to determining what the attitude the Ottawa police would take concerning the possible withdrawal of certain fraud charges then outstanding against Boutin. More will be said about these outstanding charges later.
  36. For the moment, suffice it to say that, as of November 24, 1992, Boutin, to the knowledge of Murray, Galloway and O'Brien, was facing several serious fraud charges for offences which he had committed while on parole in Ottawa in 1987, charges which he had left in his wake upon his flight to Europe.
  37. The results of O'Brien's telephone call are most revealing. Based on information Pet. Lynch had received from Ottawa police, and specifically an officer by the name of Methot, he advised O'Brien that it was the opinion of the Ottawa police that O'Brien should only believe about 10 per cent of anything Boutin said. It was the further view of the Ottawa police that Boutin was a consummate fraud artist and that force was not prepared to do anything to assist Boutin in connection with his outstanding fraud charges absent proof of the legitimacy of his present dealings with the OPP.
  38. As I suggested to counsel during the course of argument, based upon this call, it is apparent at least that the Ottawa police force would not have granted an authorization based on the uncorroborated word of Boutin. My view remains unaltered.
  39. None of this important information was brought to the attention of the authorizing judge despite the fact that it could and should have been obtained by the investigating office prior to November 24. I say that because on November 13, 1992, Det. Galloway had access to Mr. Boutin's IPSO file (see exhibit 5). That is a special file kept by prison authorities which contains confidential information concerning an inmate, including any previous instances where the inmate has provided information to the authorities. The very first document in that file, which Galloway read, was prepared on May 21, 1987 by John Richardson, case management officer assigned to Boutin. Leaving aside Mr. Richardson's personal concerns about Boutin's reliability, the last paragraph of that report describes how, according to Boutin, he had been approached in 1986 by the Ottawa police, and particularly Officer Methot, to provide information regarding an ongoing investigation. According again to Boutin, he had reluctantly agreed to serve an as informant.
  40. Had Galloway taken the time to make one phone call to Officer Methot he would have learned what O'Brien learned in his call to Lynch, namely, that the Ottawa police force considered Boutin to be almost completely incredible and unreliable.
  41. There is no telling what impact that single piece of information would have had on the authorizing judge. In my view, the impact would have been substantial.
  42. Returning back to bet. Insp. O'Brien, in addition to the call to Lynch on the 24th, the evidence reveals that on November 25, the day after the authorization had been granted, he was on the phone again to Ottawa, this time to Det. Sgt. Dupuis of OPP Intelligence, Interpol Branch. This call arose due to O'Brien's serious doubts about Boutin's trustworthiness. O'Brien wanted information from Interpol about Boutin's activities in Europe. He obviously had concerns about Boutin's possible criminal conduct in Europe post 1987, over and above the one fraud conviction in France, which he, Galloway and Murray had been aware of prior to the 24th. (I pause here to note that no mention of that conviction appears in the impugned affidavit.)
  43. On November 27, 1992, O'Brien received a letter and several files from Dupuis which indicated that (a), a complaint had been made against Boutin over the theft of a boat from France; (b), an Interpol "green circular" had been distributed to all Interpol member countries advising them of Boutin's potential to resort to criminal activities; and (c), information existed regarding Boutin's possible involvement in a plot to bomb and thereby disrupt the 1988 summer Olympics.
  44. (I pause here again to note that to this day no one can be certain as to the extent of Boutin's criminal activities in Europe from 1987 to 1992. I say that because although the authorities have recently done a further check through Interpol on this subject, that check only related to the name Denis Raymond Boutin; no effort was made to include as a part of this check the no less than 16 aliases which Boutin has used over the years as evidenced in exhibit 7, the CPIC report obtained by Const. Murray on November 11, 1992.)
  45. Returning to the issue at hand, clearly the information which O'Brien received from Dupuis was not helpful to Boutin. Leaving that aside, what is important is the fact that the senior investigating officer responsible for the conduct of the overall investigation had real and significant concerns about Boutin's credibility and reliability at the time that the affidavit in question was placed before the authorizing judge. And yet, not only was that important information left out of the affidavit; it was instead made to appear that all of the investigators were uniform in their belief that Boutin was both credible and reliable. Again, we can only imagine the impact on the authorizing judge had he known that the officer in charge of the investigation had serious concerns about Boutin's credibility and reliability as of November 24.
  46. While I am on the subject of Det. Insp. O'Brien, it might be useful to deal with another matter where his failure to act in a timely fashion resulted in material nondisclosure in the affidavit.
  47. The evidence before me indicates that on November 16, 1992, Murray and Galloway drove Boutin from Kingston to Toronto. During the course of the drive, Boutin made number of bizarre statements to Murray which Murray noted in his book. These included the fact that (a), prior to leaving Canada in 1987, Boutin had operated a limousine company which was involved in the transporting of senior federal government officials, including various ministers. This employment had once led to his being in the prime minister's house; (b), Boutin had left Canada in 1987 because he had been told to do so by a federal government official who was concerned that Boutin was about to be named in the House of Commons as an arms dealer with links to the Oliver North/Iran-Contra scandal. According to Boutin, once this information was revealed, he would then have been required to testify at the Senate hearings being conducted in the United States on that subject; and (c), while in Europe, he had become a close personal friend of a top official in the French secret service. He provided the man's name and telephone number and proffered that he had been of great assistance to this senior official, given his (Boutin's) prior training as a terrorist.
  48. These statements were sufficiently troubling to Murray that he passed them along to O'Brien, with O'Brien's assurance he would check into them. As it turns out, O'Brien made no checks. When asked why, he said, "I have no reason." Had he carried out the checks, there is no telling what he would have learned about Boutin's reliability regarding the limousine story or the French senior civil servant tale. Insofar as the Iran-Contra scandal is concerned, he would minimally have learned as much as Mr. Richardson did in May of 1987.
  49. It will be recalled that Mr. Richardson was Boutin's case management officer in 1987.  In a report dated May 21, 1987, found in exhibit 2, tab 2, Mr. Richardson made the following remarks under the heading Assessment:

    We were concerned in mid-December when the subject's name appeared in newspaper stories carrying a veiled allegation of his possible involvement with the Iranian/U.S. financial transaction.  However, upon investigation with RCMP, we determined there really was no connection although Boutin, always one for grandstanding, may have relished the attention these allegations brought him.  (RCMP were so annoyed by his embellishment of the situation that they almost charged him with mischief and Boutin had to be warned off belabouring the issue.)
  50. The importance of this information can scarcely be doubted. It would have demonstrated not only that Boutin's tale about his involvement in the Iran-Contra scandal was a tall one, but also it would have put the lie to the explanation he had given to Murray for his leaving Canada in 1987. From this, putting two and two together, it would have become immediately apparent to Murray and the others that the real reason Boutin had left Canada in 1987 was to avoid his impending apprehension for the frauds which he had perpetrated in Ottawa that year, while on parole and while supposedly acting as an informant for the Ottawa police.
  51. These were the charges which remained outstanding against Boutin when he returned to Canada in 1992; these were charges that O'Brien had been trying to have withdrawn both before and after November 24, 1992, and these were the charges which were not mentioned in the affidavit which went before Mr. Justice Hamilton. Had Mr. Justice Hamilton been made aware of them and the efforts which the police had been making to have them withdrawn, this might have put a dent into Boutin's so-called altruistic motivation. While it is true that Boutin had not asked the police for help with these charges, the inference is irresistible that he would have anticipated that such help would be forthcoming. After all, given his criminal record and given the serious nature of the frauds he had perpetrated in Ottawa, he undoubtedly would have known that, absent police intervention, he would be looking at a substantial period of incarceration. However, if he were to take on the role of informer, not only would he be needed on the outside, but also the authorities would not wish him to be on the inside for safe reasons.
  52. It is beyond my comprehension to understand how the police could have failed to advise Justice Hamilton of this important information relating to Boutin's outstanding charges and the several negative inferences that could have been drawn from them relative to Boutin's trustworthiness, including his stated reason to Murray for leaving Canada in 1987.
  53. I now wish to move on to another aspect of the affidavit, and particularly that portion dealing with Boutin's previous reliability as an informant.
  54. It will be recalled that the only information in the affidavit concerning this subject was the positive information arising out of Boutin's stay at the La Macaza prison. There he had helped to prevent the escape of three prisoners and generally been of assistance to the prison staff. Clearly, that information was relevant, material and supportive of Boutin's trustworthiness. That said, the affidavit was completely silent about those occasions where Boutin had played the role of informer in the past and been shown to be unreliable. I have already mentioned his involvement with Officer Methot of the Ottawa police while he was on parole in 1986 and 1987. I do not intend to review that material again. Nor do I propose to reiterate Boutin's close call with the RCMP over the Iran-Contra affair when he was almost charged with public mischief. I do, however, wish to deal with the information Boutin provided to the authorities in 1984 regarding a supposed plot to kill the Queen during her visit to Canada. The information regarding this matter is found in the IPSO file appended to exhibit 5. That is the file which Galloway reviewed on November 13, 1992.
  55. In a report dated August 23, 1984, prepared by Mr. McCooeye, a parole service officer, we find an outline of Boutin's alleged involvement in a plot to kill Her Majesty. In that report, Boutin claimed that he had been requested to go to Bancroft in order to steal some dynamite. Boutin also claimed that the RCMP had confirmed the existence of the stored dynamite and its accessibility. As it turns out, based upon the evidence before me, investigation into this matter by the authorities revealed that Boutin had fabricated his involvement in the alleged plot. This is something which Galloway could and should have discovered prior to November 24. That information should have been placed before the authorizing judge.
  56. In addition, Justice Hamilton should have been aware of Mr. McCooeye's assessment of Boutin found in the second-to-last paragraph of his report.  That assessment reads

    Boutin is, in my opinion, a pathological liar whose propensity to assume false identifies and to commit fraudulent acts has resulted in a lengthy association with the correctional systems in Canada and the United States.
  57. This damming comment about Boutin is important several reasons. First, it referred to Boutin's criminal involvement in the United States. One might have expected Det Galloway to twig to this and order up Boutin's United States criminal record. Had he done so, he would have discovered exhibit 3, a three-page list of convictions which Boutin manage to accumulate from 1962 to 1975 during his various sojourns to the United States. This record, along with his conviction in France in 1987, should have been placed before the authorizing judge.
  58. Of greater importance is the fact that Mr. McCooeye had described Boutin as a pathological liar. The word "pathological" should have raised alarm bells in the mind of Galloway. Minimally, one would have expected a call to Mr. McCooeye for clarification, given that the word pathological carried with it connotations of mental instability.
  59. Apart altogether from Galloway's failure to track this down, the evidence before me reveals that when Const. Murray ordered a CPIC check on Boutin, he received a document on November 11, 1992, now marked as exhibit 7, which began with the following remarks.
    Boutin, Denis Raymond: Caution: Violence.
    Caution:  Escape risk.  Caution: Mental instability.
  60. In the evidence before me, Murray testified that he had seen the words "mental instability." He also stated that in his eight years as a police officer, he had only rarely come across CPICs with similar notations. He therefore had a document clearly alerted him to the fact that Boutin was considered to have psychiatric problems. Murray also knew from his experience as a member of the penitentiary squad that information regarding the psychiatric history of an inmate could be located in the inmate's prison files. Indeed, Murray had Boutin's files available to him. He had signed them out on November 10, 1992. And yet, he made no effort whatsoever to check these files.
  61. To make matters worse, he chose to keep the information of Boutin's mental instability to himself. He did not share it with O'Brien or Cavanaugh. When asked why he proffered two excuses. First, in his dealings with Boutin, he had not seen any signs of mental instability; second, when he learned from Cavanaugh on the 16th the importance of doing a complete and thorough check on Boutin's background he, Murray, was already in Toronto and Boutin's prison files were back in Kingston.
  62. Let me say at once that I find both of those excuses to be completely unacceptable. Murray had no training in psychology or psychiatry such that he could reasonably trust his judgment of Boutin over the authorities responsible for the preparation of the November 11, 1992 CPIC printout. As for his being in Toronto, I find this excuse to be ludicrous. Had he wanted the records checked, he could have simply called his unit in Kingston, or, for that matter, Mr. Embry, the custodian of the records at Millhaven. And had the records been checked as they should have been, the results would have been vitally important on the crucial issue of Boutin's credibility and reliability.
  63. On the review before me, the relevant records have been filed as exhibits 2 and 2A. They comprise a series of reports prepared by prison officers, parole officers, criminologists, psychiatrists and psychologists relative to Boutin, from 1972 to 1992.
  64. These reports reveal that as of 1992, Boutin had been suffering from a major mental illness for most, if not all, of his adult life. It would be impossible in this judgment to detail Boutin's psychiatric history. Instead, a sampling of the pertinent information will suffice.
  65. The following material comes from exhibit 2A:
  66. At tab 20, Boutin is shown to have been diagnosed by a psychiatrist in 1973 as a psychopath.
  67. At tab 21, in a report dated October 31, 1993 entitled Regional Medical Centre Psychiatric Evaluation, the following comments appear:

    With the curves observed, I believe that it is fairly obvious that this man is a psychopath in the strict sense of the term.  Intelligent, cajoling, fraudulent, capable of convincing almost anyone of anything, capable of developing apparently serious depressions and sometimes telling stories that more than one psychiatrist would take for psychosis, all these elements support my diagnostic impression.
  68. At tab 22, in a psychological evaluation of Boutin prepared October 23, 1973, we find the following:

    This is an inmate 32 years of age who is serving a sentence of three (3) years for fraud.  Since 1962, he has been practising the profession of defrauder for which he has served sentences in penitentiaries, provincial prisons and prisons in the United States.  His offences include a range of impersonations of influential people and even members of the underworld, as well as forging documents, etc.
  69. And a little further down the same page: 20

    Thus he shows himself to be neither too stupid nor too smart, but during his performance of the Rorschach test, it seemed that he was playing the game of the fox in the fable. He excuses his "impersonations of a medical student, deputy minister of justice, son of Joe Bonanno" by saying that he passed himself off as someone else because he was suffering from mental illness.
  70. At tab 24, in a report prepared July 9, 1973 for the National Parole Board by several criminologists, the following remarks appear:

    This is an individual 33 years of age who is serving a third penitentiary sentence.  His juvenile delinquency began at age 17, and today he is a professional defrauder.

    He specializes in false cheques under assumed names. He has rarely been caught.

    He impersonates different individuals and ends up believing in them himself.  So far he has introduced himself as a peace officer, the deputy minister of justice, the Canadian ambassador to the United States, a doctor or even a lawyer.

    Mr. Boutin had a traumatizing and disorganized childhood with numerous placements.  He has a serious identification problem.
  71. At tab 26 in a report prepared November 1, 1972 for the National Parole Board, by Boutin's then classification officer, the following comments appear at page 3, under the heading Summary:

    The subject appears to us to be a very structured defrauder whose career began when he was about 20.  He has never worked and has always lived by his wits.

    He is an excellent impersonator and a crafty manipulator.  During the interview, we noticed once more that he was a liar with no conscience who is satisfied with his criminal behaviour.  It seems that having been unable to achieve the ideals of his youth, he bolsters his self-esteem by criminal acts that have given him a great deal of personal satisfaction.  Only luxury and idleness attract him.  To commit his offences, he is extremely artful and uses all kinds of strategies.

    He has superior potential, but is incapable of developing a conscience, as he receives too much gratification from his acts.  His motivation for entering the normal frame of society is nil.  He apparently put on the scam of his career in Winnipeg when he passed himself off as an important member of the American underworld. This situation could cause him serious problems in a prison environment no matter where he is incarcerated.

    However, the subject functions well in a prison environment but will readily act as an informer if it is to his advantage materially.
  72. At tab 27, in an undated report clearly prepared after 1978, we find the following under the heading Perception and Attitudes of the Subject During Interviews:

    During interviews this subject never stops talking. He has to be constantly brought back to reality and confronted with facts in order to try and get a satisfactory answer out of him.  He is quite at ease and could ramble on for hours like this.

    Under the heading Diagnosis:

    The diagnosis of this individual very simple; he is an ineducable and incorrigible megalomaniac, in the sense that in addition to being fundamentally manipulative and presenting the structured personality of a defrauder, he suffers above all from a pathological overestimation that he has forged of his personality and his importance to the world.  He is very intelligent and words come easily to him, and he is filled with delusions of grandeur.  At certain moments, he harbours ambitious projects that he concretizes through acts while losing contact to a certain extent with reality.

    He has spent his entire life in this manner, and there is little chance that he will change with time.
  73. Pausing here, I note that both Galloway and Murray commented about Boutin's incessant ramblings in their conversations with him.
  74. At tab 28 we find a report dated September 20, 1982 prepared by the National Harbour Board police, describing how Mr. Boutin, while at the La Macaza Institute, was able to convince a group of grain operators that he was an ornithologist working for the Canadian Wildlife Service. He actually went so far as to invite a grain elevator supervisor to visit him at his so-called laboratory at La Macaza. During the course of the visit, he advised the supervisor that he (the supervisor) should not be concerned about the guards since La Macaza had earlier been a base for Bomarc missiles and in certain places there still remained mercury deposits; the guards were therefore present for safety reasons.
  75. At tab 19, in a report prepared April 9, 1974 for the National Parole Board by several criminologists, the following appears:

    For classification staff, the Boutin case is hopeless, and any attempt to rehabilitate him would be idealistic.  Unmatched as a manipulator, Boutin is also subject to psychiatric problems which maximize strongly integrated delinquent tendencies.
  76. At tab 18, in a psychological report prepared in September of 1980, Boutin is described as "a borderline psychotic with a high potential for fabrication."
  77. At tab 17, in a detailed psychiatric report prepared by Dr. Thibault in 1981, Boutin is assessed as a paranoid schizophrenic (type megalomaniac).  The following excerpted from that report is instructive:

    In contrast, megalomaniac delirium results from a reconstruction of reality.  At its source, there is a self threatened with destruction, incapable of dealing with reality, which escapes destruction by reconstituting reality in the image of an ideal self, that is, by fantasies of being all-powerful and magical thought.  It is a method of adaptation, and the subject subscribes to it with conviction.

    Analysis of the content of Mr. Boutin's conversation seems to suggest megalomaniac delirium rather than mythomania;  In fact, what he says reflects an emotional profile that is very defensive and allows a very fragile self to be postulated, unable to metabolize stress and the entreaties of its various instances (internal and external).  The reconstruction of reality is performed using projections of the ideal self, that is, with a grandiose and megalomaniac content.  The subject adheres to this, and it becomes, his conviction.
  78. At tab 16, a report dated May 22, 1991 prepared by Ms. Ferland, AGCE, we find the following remarks under the heading Personality:

    Often Laurier, or rather Denis Boutin is described as a swindler and manipulator.  However, his manipulations often prove to be rather clumsy, and he sometimes tells stories that are to his disadvantage (example: He has said he committed a murder in the U.S.) Consequently, and given the frequency and range of his irrational behaviour, we requested a psychiatric evaluation.  Dr. Thibault terms the case thus: "megalomaniac paranoiac psychosis."

    It would seem Mr. Boutin is not content to be just himself, but goes from character to character (example doctor of nuclear medicine, leftist militant, airline pilot, electrician, governor, murderer, etc.).  Mr. Boutin has already had at least three sojourns in psychiatric institutions (Medical Centre, Essendale, Atlanta Institute).  It would seem that his impersonation behaviour, feeling of persecution and delusions of grandeur are incurable.
  79. Moving on to exhibit 2, at tab 12 we find the following in a report dated September 5, 1975, prepared by an RCMP officer:

    We have no knowledge of him being a graduate from Laval Medical School or of any accident in which he may have lost his memory.

    Boutin was first arrested as a juvenile. As shown in this file, he has a record ranging from public mischief to impersonation.  Many of these frauds took place in U.S.A. and Canada simultaneously.

    Boutin is known by many local police to be an expert "Con" artist.  All information that he gives should be verified thoroughly.
  80. At tab 8, in a 1984 report, David McCooeye, Boutin's service parole officer, observes: "Boutin is a compulsive liar and a self-proclaimed informer."
  81. At tab 4, in a report prepared on November 5, 1984 by Mr. Palmer, a psychologist at the Warkworth penitentiary, we find the following remarks in a very short half page report:

    If I translate the file properly from the French, there has been question in the past about whether or not he has been psychotic.  He certainly does not appear to be psychotic at this time.  He has also been described in the past as chronically untruthful.  In my interview with him I found that he embellished things; he told me some things that I doubted; nonetheless, I felt that his behaviour was not atypical of the kind of individual who has served his entire life in jail, has no normal accomplishments or achievements, and who, therefore invents or embellishes stories, almost as a means of making himself appear interesting or worthwhile.
  82. Although Mr. Schille, on behalf of the Crown, sought to stress Mr. Palmer's finding that in 1984 Boutin did not appear to be psychotic, in my opinion this only serves to establish that at that particular time Mr. Palmer concluded that Boutin was in touch with reality. Moreover, Mr. Palmer made it clear that in his view, Boutin continued to both invent - - and I stress the word "invent" -- and embellish stories as a means of making himself appear interesting and worthwhile. The Crown, my opinion, can gain little comfort from this report.
  83. Finally, at tab 1, in a report prepared September 8, 1992, by Ms. Janet Ayerst, a parole officer, the following comments are attributed to the now "supposedly reformed" Boutin.  At page 1 we find the following:

    Boutin was cooperative and pleasant during the interview. He advised that he had been in Italy since leaving Canada in June of 1987.  He reiterated that his life was going extremely well prior to this time and he would not have left Canada had he not feared for his own life.  He claims he had a positive new marriage, a successful limousine service and savings in excess of $100,000. However, he claims that he had cooperated with the police and in turn received threats from accused persons. Boutin took these threats for his life very seriously and immediately chose to leave the country and all that he had legitimately established.

    And further at page 2:

    Boutin advised that he worked as a Tourist Guide for bus tours in Rome.  He adamantly stated that he has not been involved in any illegal activity since his last convictions.
  84. Not unexpectedly, these extracts go to prove that as late as September of 1992, only several months prior to his revelations about the poison and witness plots, Boutin continued to be an obsessive and compulsive liar.
  85. In this regard as well, I note that Boutin had convinced Murray and Galloway that he had been a member of the FLQ at the time of the attempted hijacking in 1979 (see paragraph 10 (B) (iii) of the affidavit). Again, nothing could be further from the truth. The record of Boutin's sentencing on that charge has been filed before me as exhibit 9A. At that hearing, the information provided to the sentencing judge portrayed Boutin as a supposed terrorist affiliated with Che Guevera. Additionally at the preliminary hearing into the charges presently before me, Boutin admitted under oath that he had never been a member of the FLQ. If the truth be known, I doubt that Boutin was ever a member of any terrorist organization, except perhaps in his own very sick mind.
  86. Can there be any doubt how great an impact the preceding information would have had on the authorizing judge?
  87. To get an inkling of its potential impact, I need look no further than the evidence of Det. Insp. O'Brien. In his testimony before me, O'Brien swore that he had no idea about Boutin's mental instability prior to November 24, 1992. Neither Murray nor Galloway had brought this to his attention. Had he been made aware of it, he would have called an immediate halt the entire investigation and he would not have proceeded further, absent Boutin successfully undergoing a polygraph. With respect to the detective inspector, given what we now know of Boutin psychiatric history, I doubt that any polygraph would prove match for Boutin.
  88. Apart altogether from Det. Insp. O'Brien's reactions, this psychiatric history is so important because it serves to explain what Boutin is really all about. This is a man who, for 25 years or more, has suffered from a major mental illness of a kind so dangerous and telling against his credibility and reliability. His megalomania; his delusions of grandeur; his ability to create things out of nothing and convince himself of their truth, thereby rendering him a formidable and compelling liar; his constant need for attention; his swelled sense of his own importance and his seeming need of desire to live on the edge of danger are all vitally important factors which should have been before the authorizing judge.
  89. From all of the foregoing, it will be seen immediately that the affidavit which was presented to Mr. Justice Hamilton was, in many instances, inaccurate, incomplete and misleading. In particular and of great significance, he received a warped, distorted and grossly deceptive picture of Boutin's reputation for credibility and reliability.
  90. While it is true that post November 10, 1992, some of Boutin's professed activities and some of the information he had provided to the authorities proved to be accurate, very little, if any, of this information served to substantiate or confirm the existence of either of the alleged murderous plots. Most of the information was at best neutral. In addition, it comes as no great surprise that Boutin would not lie about matters such as his place of residence or the people he was living with. The same holds true of his place of work and the various people associated with that business. He knew that he was under constant surveillance by the OPP, and therefore, he could hardly have hoped to get away with lies relative to his movements.
  91. Interestingly enough, his description of the goings-on at his place of work, which the police had not confirmed, caused Det. Insp. O'Brien to doubt Boutin's credibility. Boutin had claimed that the inside of the business premises was like a fortress where a number of employees were armed with both hand and machine guns. O'Brien had grave doubts about this.
  92. As for Boutin's ability to describe A's court date on the robbery charge and the nationality and job description of the complainant, it appeared to O'Brien that Boutin's incremental providing of this information was scripted. For myself, I find it surprising that it would have taken Boutin so long to come up with so little information if his allegations were true.
  93. In any event, there can be no doubt that A was a friend of D, and in view of this, it is hardly surprising that D would have known some basic facts about A's upcoming trial, absent a nefarious reason.
  94. In view of the devastating new evidence regarding Boutin's lack of trustworthiness which has been presented on this review, I am convinced that had this information been before the authorizing judge, that judge could not and would not have granted an authorization, particularly where the precondition of probable cause rested entirely upon the word of Boutin, uncorroborated as it was in any material particular.
  95. In coming to this conclusion, I have considered the thoughts expressed by Mr. Justice Sopinka in Garofoli, supra, albeit in the context of his ruling that cross-examination  should have been permitted on the subject affidavit in that case.  At page 198, he said:

    In my opinion, the appellant has shown a basis for the cross-examination here.  In view of the degree of reliance by the police on the informant in this case, if the informant is discredited then the factual basis for the authorization is undermined.  If it is shown that the informant lied, then it could raise the inference that the police knew or ought to have known that he lied.  If the police were not warranted in their belief that the information was true, then the basis for belief that a crime was to be committed disappears.  Accordingly, the appellant should have been permitted to cross-examine. Cross-examination having been denied, there must be a new trial.
  96. Based upon the augmented record before me, I am satisfied that had the investigating officers carried out their duties properly, they would have known that Boutin was a man who simply could not be trusted. They would have discovered as well that he had misled them about much of his past. Most importantly, they would have learned that his lying stemmed from a deep-rooted and seemingly incurable disease of the mind.
  97. Had the totality of the circumstances surrounding his trustworthiness been placed before the authorizing judge, I am satisfied beyond any doubt that Justice Hamilton would have come to the conclusion that the police were not warranted in their belief that the information provided by Boutin was true. That being the case, Mr. Justice Hamilton could not and would have granted the authorization.
  98. As a result, I have concluded that the ensuing interception of the private communications of the applicants was unlawful and therefore constituted a violation of their rights under section 8 of the Charter.
  99. That then brings me to the section 24(2) analysis.
  100. Insofar as any of the impugned interceptions involve communications absent Boutin's participation, it is clear that the information derived from such conversations would not have been known or available to the authorities, absent the Charter violation. In other words, that evidence is dependent for its existence on the Charter violation. It therefore fall under the rubric of self-incriminating evidence, which goes to the very heart of the fairness of the trial. That being the case, any such communications must be ruled inadmissible since their admission into evidence could and would bring the administration of justice into disrepute (R. v. Mellenthin (1992), 76 C.C.C.(3d) 481, (S.C.C.), and R. v. Acciavatti (1993), 80 C.C.C.(3d) 109, (Ont. C.A.).)
  101. As for the communications where Boutin was involved, Mr Schille submitted that the information obtained those circumstances ought more properly to be considered as real evidence, given that such information was not dependent on any Charter violation for its existence. I tend to agree with that submission. As a result, it becomes necessary to consider the seriousness of the Charter violation.
  102. In this regard, I have no hesitation in concluding that the conduct of the investigating officers, namely Murray, Galloway and O'Brien, was shockingly delinquent. I am satisfied and find as a fact that these officers proceeded in a fashion which minimally showed a reckless disregard for the truth. Indeed, although I need not finally decide the matter, I am inclined to the view that their delinquent conduct amounted to wilful blindness as to the true state of affairs surrounding Boutin, such that the ensuing affidavit could be considered to be a deliberate fraud upon the court.
  103. Lest there be any doubt about it, I want to make it clear that the foregoing remarks apply only to the investigating officers; they are not directed to Det. Sgt. Cavanaugh. He had no reason to suspect that his fellow officers would conduct themselves as they did, particularly in view of explicit and unqualified instructions he had given. I am confident, therefore, that he was not responsible for the many deficiencies which have been exposed in the impugned affidavit.
  104. The interception of the private conversations the applicants amounted to a serious and significant intrusion into their privacy rights. The conduct of the police which gave rise to the Charter violation can only be described as egregious. As stated earlier in these reasons, the various investigating officers made a mockery of the duty to disclose fairly, fully and frankly.
  105. That then brings me to the final consideration, namely, the effect of the exclusion on the repute of the administration of justice. Here I recognize that the charges are serious. I also assume (not having listened to the intercepted communications) that the Crown's case against the applicant will be substantially weakened by their exclusion. Nevertheless, having regard to the seriousness of the Charter violation and conduct of the police giving rise to it, I have concluded for reasons similar to those of Mr. Justice Sopinka in R. v. Kokesch (1990), 61, C.C.C (3d) 207, (S.C.C.), that the effect of admitting the evidence in question would be both detrimental and harmful to the repute of the administration of justice.
  106. In the result, I have been persuaded on a balance of probabilities that the proposed admission into evidence of private communications could bring the administration of justice into disrepute. The evidence is therefore ruled inadmissible.
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