Subramaniam c. R., 2019 QCCA 1744

[7] The second ground has no merit. There is no principle of positive law in Canada, statutory or otherwise, that would impose upon the police an obligation to refrain from using an MBO unless all other investigative methods have been exhausted. Correspondingly, there is no obligation on the prosecution to prove, as a condition of admissibility, that all investigative techniques had been used before the police conducted an MBO. There is also no principle of law that would restrict the use of an MBO to so-called “cold” cases. In short, the MBO is lawful in Canada.[3] It is subject to judicial control by rules and principles of admissibility, stated in Hart, if and when the fruits of such an operation are tendered as evidence in court by the prosecution.

[8] A rule of the type suggested by the appellant could not be implemented by any competent authority without nuanced attention to its modalities, as suggested by the following questions:

When does an MBO become a technique of “last resort”?

Is prior authorisation required for an MBO and, if so, from what authority?

Is an MBO permissible only for certain offences?

Under what conditions, and within what limits, may an MBO be conducted?

By what criteria, and to what standard, must the prosecution prove in a voir dire that the police had exhausted all investigative techniques before commencing an MBO?

By what criteria, and to what standard, must the prosecution prove in a voir dire concerning the admissibility of a statement that an MBO was lawfully conducted?

These are only some of the many questions that would demand answers in the formulation of a prescriptive rule of the type proposed by the appellant.

[9] There is no authority for the proposition advanced by the appellant and there is no basis upon which this court can create a legislative edict to enforce such a proposition. Accordingly, this ground of appeal fails.