Wiretap Authorizations Require Full & Frank Disclosure

Written on Behalf of Affleck & Barrison LLP

In R v Hall, 2016 ONCA 13, the Court of Appeal found that the officer who obtained an authorization to intercept conversations between the defendant and an informant had a profound misunderstanding of the duty of full and frank disclosure.

Jeremy Hall was arrested on a gun-related charges. While incarcerated, he asked his cellmate and childhood acquaintance, Dwayne Utman, to help him make sure the witnesses would not show up for trial, indicating that both should be killed. He offered Mr. Utman $5000. Mr. Utman testified that he went to the police with this information and reported the substance of his conversations with Mr. Hall to the police. After Mr. Utman’s release from custody, he continued to report his conversations with Mr. Hall to police. The Crown’s case was heavily dependent on Mr. Utman’s evidence. Mr. Utman stood to gain financially from helping the police, and he had drug and mental health issues, in addition to being a habitual liar and a career criminal. The trial judge noted that Mr. Utman’s evidence “must be approached with extreme caution.” The trial judge was not prepared to convict Mr. Hall of the charges of counseling murder based on Mr. Utman’s testimony.

At trial, a major issue concerned the admissibility of the intercepted conversations between Mr. Hall and Mr. Utman, both in the jail cell they shared and at other locations. The trial judge found that Detective Sergeant Johnstone, the officer who obtained the authorizations to intercept the conversations, failed to make a full and frank disclosure of the facts material to making a proper assessment of Utman’s credibility. The trial judge found that the officer’s conduct “materially distorted the picture that was placed before the issuing Justice.” As a result, the trial judge set aside the authorizations. Absent the authorizations, the interceptions were unlawful and infringed upon Hall’s rights under section 8 of the Charter of Rights and Freedoms.

The Court of Appeal upheld the trial judge’s ruling that the evidence from the interceptions was unlawful and should be excluded. The appeal was dismissed.

This article is a brief overview of a complex case and is not intended to be construed as comprehensive legal advice. To learn more about this case or any other criminal defence matter, please contact the lawyers at Affleck & Barrison online or at 905-404-1947.

To read the full decision, click here.