Counsel for the criminal defendant says he plans to appeal the ruling to the Supreme Court of Canada
The Canadian Charter of Rights and Freedoms does not apply to evidence that the Royal Canadian Mounted Police obtained from an undercover California police officer in a drug trafficking case, the British Columbia Court of Appeal has ruled, dismissing a criminal defendant’s argument that admitting the evidence violated his Charter rights.
R. v. Calabretti dates back to 2015, when the defendant, Martino Calabretti, was put in touch with a California police officer who was posing as a drug dealer as part of a drug investigation in California. The BCCA refers to the officer as Sgt. X.
Sgt. X secretly recorded his conversations with Calabretti. In 2016, RCMP officers, who were investigating Calabretti for drug offences in Canada, met with Sgt. X in California to make sure there was no conflict between the two investigations.
Sgt. X agreed to stop his own investigation and assist the RCMP with theirs instead. He introduced Calabretti to two RCMP officers, who posed as drug traffickers, and gave the recordings of his conversations with Calabretti to the RCMP. The RCMP used the recordings to obtain a wiretap, which helped them obtain information that led to Calabretti’s arrest in 2018.
Before his trial began, Calabretti argued the RCMP violated his rights under s. 8 of the Charter – which guarantees freedom from unreasonable search or seizure – by failing to report the fact that they’d obtained the recordings from Sgt. X. Calabretti argued this reporting was required under the Criminal Code, which lays out rules for how police officers must handle seized property.
Calabretti also argued that the RCMP breached his rights under ss. 7 and 11(d) of the Charter, which respectively guarantee life, liberty and security and that any person charged with an offence is presumed innocent until proven guilty. According to Calabretti, these breaches occurred when the RCMP relied on the recordings to obtain a wiretap because Sgt. X had recorded the conversations in violation of California law.
The trial judge disagreed with Calabretti’s arguments and convicted him of trafficking in MDMA and MDA and conspiracy to import cocaine, based partly on evidence derived from Sgt. X’s recordings. Calabretti appealed.
In its May 29 ruling, the BCCA found that the Charter does not apply to Sgt. X’s conduct. The appellate court noted that the Supreme Court of Canada’s 2007 decision in a case called R. v. Hape is “the governing authority on the admission of foreign-gathered evidence.” Hape established that the Charter generally does not apply to Canadian authorities when they are involved in an investigation outside of Canada.
However, there are two exceptions to this rule. The first is when the foreign state where the investigation is taking place consents to the application of Canadian law. The second is when the process of gathering the evidence violates Canada’s international law obligations, including those related to fundamental human rights.
Neither exception applies because Sgt. X never consented to the application of Canadian law, and Sgt. X’s conduct is not a clear violation of Canada’s international law obligations, the BCCA said.
The appellate court also found that the Criminal Code did not require the RCMP to report the fact that they’d obtained Sgt. X’s recordings, and that admitting the evidence that stemmed from the recordings does not infringe Calabretti’s right to a fair trial under ss. 7 and 11(d) of the Charter.
In a statement on Tuesday, Joven Narwal of Narwal Litigation LLP, who represents Calabretti, said he plans to appeal the case to the Supreme Court of Canada.
“In my view, this case raises important questions about the application of the Charter to evidence gathered by foreign law enforcement authorities working with Canadian authorities, and I hope the Supreme Court of Canada will see them as questions of national importance deserving of its consideration,” Narwal said.
The Public Prosecution Service of Canada declined to comment on the case.
