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Legislation – Interpretation – Criminal Code – Offences – Whether s. 25.1 of the Criminal Code creates a general legal justification for police investigative conduct that falls within its terms or a limited in personam defence available only to police officers charged with criminal offences committed during the course of investigative activity.

On July 14, 2006, Omar Wellington was confined, assaulted, and murdered. The police suspected it was a gang-related killing. The police obtained an authorization to wiretap named persons who were members or associates of the gang. In order to stimulate meaningful intercepts, the police decided to deploy a stimulation technique. Officers disguised as hit men approached one of the named persons and pretended to be seeking other named persons in order to kill them in revenge for Omar’s murder. The technique prompted a number of phone calls from which the police obtained wiretap intercepts of evidentiary value. However, during the hit man exercise, one officer assaulted and confined the target of the exercise and he uttered a death threat. In a pre-trial voir dire into the admissibility of the intercepts, the trial judge ruled that s. 25.1(8) of the Criminal Code only provides a defence of justification in personam and it does not authorize the commission of offences nor does it prevent an accused from relying on a police officer’s unlawful conduct as a basis for a motion to exclude evidence. The trial judge also found other instances of police misconduct and breaches of the Charter. However, he held that excluding the intercepts from evidence would bring the administration of justice into disrepute.