R. v. Caines, 2011 ABQB 660

Court of Queen ’ s Bench of Alberta Citation: R. v. Caines, 2011 ABQB 660 Date: 20111028 Docket: 070060157Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Jeffrey Mark Caines, John Reginald Alcantara and Alan Peter Knapczyk Accused/Applicants _________________________________________________________ Memorandum of Decision on Solicitor-Client Privilege Application of the Honourable Madam Justice S.J. Greckol _________________________________________________________ I.

The Issue [ 1 ] This decision relates to an application for disclosure of communications for which solicitor-client privilege has been claimed. [ 2 ] From August 23, 2005 to December 14, 2005, during the course of a joint forces police investigation [referred to as “Koker A”] involving the Royal Canadian Mounted Police [RCMP], the Edmonton Police Service [EPS] and the Edmonton Integrated Proceeds of Crime Unit, the RCMP obtained five wiretap authorizations to intercept private communications . All five required “live audio monitoring” of certain of the communications.

Sergeant Mark Anderson of the RCMP, the lead investigator in Project Koker, swore the affidavits in support of the five wiretap authorizations.

[ 3 ] As a result of the investigation, John Reginald Alcantara [Alcantara] and Alan Peter Knapczyk [Knapczyk] were arrested in late 2006 and jointly charged with conspiracy to traffic in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ] and s. 465(1) (

c) of the Criminal Code [ Code ], substantive trafficking contrary to s. 5(1) of the CDSA , and with a criminal organization offence contrary to s. 467.12 of the Code . [ 4 ] Alcantara and Knapczyk now seek disclosure of certain communications between the Public Prosecution Service of Canada [PPSC] and the RCMP about the wiretap authorizations and use by civilian monitors of what has been termed the “put-away” feature of the CenCIS II electronic monitoring equipment. [ 5 ] In a letter to the court and Defence counsel dated January 13, 2010, Crown counsel described the “put-away” feature as follows: ... some calls that were required by the terms of the authorizations to be live-monitored were not continuously listened to by the monitor throughout the call.

Rather, the monitor initially listened to the call, but sometime after confirmation was made that the target was a speaker, the monitor stopped listening to the call; however, the call continued to be recorded and was ultimately listened to in its duration at a later time.

This was accomplished by the monitor pressing the system’s “put away” button. [ 6 ] Specifically, the Applicants ask for disclosure of: (1) discussions between Sergeant Anderson and the Crown wiretap agent in the course of preparing the wiretap affidavits and draft authorizations in this matter; and (2) un-redacted versions of the can-say statements given by certain of the Edmonton Special “I” civilian monitors.

They also assert that PPSC wiretap authorization precedents are relevant and not covered by litigation or solicitor-client privilege. [ 7 ] The Crown takes the position that the precedents are irrelevant and the requested communications are protected by solicitor- client privilege. II. Evidence Relevant to Knowledge by the PPSC and RCMP in 2005 of the Put-Away Issue [ 8 ] The present application arose during the course of the Applicants’ abuse of process motion.

There was an agreement among the parties that evidence from their delay application ( R v Caines , 2011 ABQB 82 ) would be considered evidence in the abuse motion and, therefore, evidence on this application. A. Prior to January 5, 2005 [ 9 ] At some point in 2003, RCMP Special “I” [Electronic Surveillance Unit] switched from the wire interception program CenCIS I to its successor, CenCIS II.

The CenCIS II system introduced the put-away feature. [ 10 ] Civilian monitors in K Division’s Special “I” [referred to in this decision as Edmonton Special “I] were and are charged with the task of implementing wire authorizations for intercepted communications in a fashion that is authorized by court order. [ 11 ] According to Barbara Monikowski, an intelligence monitor who worked with Edmonton Special “I” from 1989 to the present, every monitor on every project requiring live monitoring from 2003 until June 2008 used the put-away feature as a regular tool to deal with staff shortages.

Kathryn Millar, Supervisor of the Edmonton Special “I” civilian monitoring group from August 2005 to February 2006, confirmed that due to a shortage of manpower putting away calls on lines requiring live monitoring had been a practice prior to Project Koker.

[ 12 ] Sergeant Anderson testified he was aware in 2003 from his work as an investigative monitor on another wiretap project [E20] that the put-away feature was being used in Edmonton Special “I.” [ 13 ] In her redacted March 30, 2010 can-say statement, Cindy Blair, who was Supervisor of the Monitoring and Transcribing Unit of Edmonton Special “I” in 2005, stated that prior to January 5, 2005 she had a meeting with Federal Crown Ron Reimer concerning the live monitoring process being followed. However, she would not say she was aware of any legal issues or controversy over it prior to Project Koker.

She was asked if she discussed the legality of the use of the put-away feature on live monitored calls with anyone prior to or during Project Koker and responded: I do recall a meeting with Ron REIMER, DOJ, as well as the Special “I” Technicians and possibly the N.C.O. (I do not recall exactly who was in attendance) and as a result _______________. [ 14 ] She also was asked what the basis for continued use of the put-away feature was if she was aware its use on live monitored calls was controversial prior to or during Project Koker.

She answered: “As a result of the meeting with Ron REIMER I _______________. [ 15 ] The Crown in this case advised the Defence by letter dated April 1, 2010 that: [Ron Reimer of Edmonton PPSC] provided me ten e-mails between himself and Diana Blair (on some of the e-mails others were copied) dated between December 10, 2004 and January 20, 2005. He referred to these e-mails to help jog his memory of the meeting he had with Diana Blair in which the put-away feature was discussed .

The e-mails do not specifically speak to the put-away issue. [Emphasis added.] [ 16 ] In the hearing before me, the Crown submitted that this letter was in error in suggesting that Mr. Reimer and Ms. Blair discussed the put-away issue. The Crown represented that Ms. Blair and Mr. Reimer met in January 2005 and discussed live monitoring conditions and implementation of live monitoring conditions in wiretap authorizations but that Mr. Reimer and the Edmonton PPSC were not aware the RCMP was using the put-away function until December 2009.

It is difficult to reconcile this representation with the evidence referred to below. [ 17 ] In a statement dated May 14, 2010, Ms. Blair indicated: As well, we had in-house Department of Justice lawyers located in IPOC in the Edmonton Headquarters building. I have consulted them on issues of policy and procedures to follow with regards to monitoring and transcribing. My position has always been if there is a grey area, it is better to seek clarification rather than not. I do not recall if this was one of the topics discussed.

Consulting with DOJ would not have been specific to Project KOKER as I did not work on this project. As well, over the years I have received advice from many DOJ personnel, including Ron REIMER, Donna VALGARDSON, Bob MacDONALD to name a few. With respect to the memo dated 2005-01-05 wherein I outlined the monitoring policies and procedures to be followed. This was prepared after meetings with senior DOJ representatives, namely Ron REIMER, NCO i/c Special “I” technicians. [ 18 ] In a letter on May 18, 2010, the Crown advised the Defence that Ms. Blair had made notes of her meeting with Mr.

Reimer in 2005 but they were no longer available. [ 19 ] On June 7, 2010, the Crown disclosed information to the Defence from Ms. Monikowski’s personal binder and orientation binder, including a January 28, 2005 e-mail from Cindy Hering, an intelligence monitor with Edmonton Special “I,” to Ms. Blair . The Crown offered the following comments on that e-mail: This e-mail was vetted for irrelevance (V6) and solicitor-client privilege (V2). In the “Transcript headers”

section the only information

that may be of relevance are dates that are referenced with respect to a meeting(

s) involving Ron Reimer. Some, if not all, of the legal advice referred to in Diana Blair’s January 5, 2005 was provided on the day of the above noted meeting. A meeting is said to have taken place on December 7 (presumably 2004) and December 20 (presumably 2004). There is a reference that indicates another meeting may have taken place between December 7 and January 6 (presumably 2005). B. January 5, 2005 [ 20 ] Sergeant Anderson testified that the pre-wire portion of the Koker A investigation was carried out from January 5, 2005 to August 23, 2005. [ 21 ] Ms. Blair and Sergeant Bryce J.

Florence, Manager of Edmonton Special “I,” co-authored a memorandum to their staff on January 5, 2005 stating that: "...[if] time permits, do not 'put away' calls that are identified as targets. When you do 'put away' a target call, please go in and check periodically to ensure that it is still our target on the line. If time permits, please listen to the live call in its entirety." [ 22 ] In her May 14, 2010 statement, Ms. Blair stated: ... I take my job very seriously and I stand by my memo of 2005-01-05_______________. I was essentially holding my staff accountable to what I was asking them to do.

I had each member of my staff, as well as my NCO, read and sign this memo acknowledging they understood. In addition, I also met individually with each person who signed this memo to ensure they fully understood and had no questions at all as to the direction they were being given... [ 23 ] During cross-examination on the delay motion by Mr. Rice, counsel for Alcantara, Ms. Blair gave the following evidence about what prompted the January 5, 2005 memorandum: Q.

Now, prior to getting into the content of the memorandum, can you explain for the Court what issue had arisen that prompted the preparation of the memorandum? A. We were preparing disclosure on a different file, and there .. It was basically house ... it was a new system or newer system, and it was housekeeping issues, you know, just stuff that I thought they knew but I just wanted to reaffirm. ... Q. And was there something in context of that disclosure which resulted in this memorandum? Mr. Hrabchak: Well, the witness is hesitating.

I’m going to remind that she cannot disclose any conversation that she obtained legal advise of the RCMP, whether it be Ms. Blair or any other employee of the RCMP from the Crown’s office, any Crown’s office. Mr. Rice: That wasn’t my question. The Court: I was going to ask you to repeat the question. Q. Was there a particular issue that had arisen with respect to the disclosure on the unrelated file that prompted the memorandum of January 5, 2005, the purpose of which was to remind monitors about certain monitoring procedures?

A. I wouldn’t call it an issue but something was .. We were questioned on something. Q. Would that have been the use of a put-away feature? A. No, it was not. Q. It was unrelated to the put-away feature? A. Yes. Q. You mentioned something had come up with respect to the new equipment. I take it you’re referring to the Census equipment. A. Well, we had switched intercept machines, brands, and so there was just difference capabilities on each system, the old system to the new system. Q. Okay. We’ve used that phrase here in your absence, the old system, and the new, and I understand it to be CenCis I and CenCis II?

A. Correct, okay. Q. So 2005 at the time you’re preparing this memorandum, you’re using CenCis II equipment? A. Yes. Q. And you had become aware on the CenCis II equipment of the put-away feature? ... A. Yes, I was familiar with it, yes. Q. And I understand that the previous equipment, CenCis I, didn’t have that feature? A. Correct. Q. Now, it was also my understanding that you acquired the CenCis II equipment in 2003? A. Honestly, I can’t remember. That could possibly be, yes. Q.

So monitors at Special “I” had been using the put-away feature for a time period of a couple of years preceding your January, ‘05, memorandum?

A. Well, not necessarily. If we didn’t have any work, we wouldn’t have been using it... How much they used it, I honestly can’t recall. ... Q. Is it fair to characterize your memorandum to the staff as clarifying Special “I” policy in that regard? A. Yes. [ 24 ] According to Ms. Hering, who has worked as an intelligence monitor with Edmonton Special “I” since 1992, use of the put- away feature became a topic of discussion in Edmonton Special “I” after that memo. C.

January 19, 2005 [ 25 ] In her February 24, 2010 can-say statement, Georgia Soutar (then Tsoukalas), a civilian monitor with Edmonton Special “ I ” in 2005, said she became aware on January 19, 2005 that putting away target calls had been called into question as contrary to wiretap authorizations. She indicated Ms. Blair told her on that date that she had had a conversation with Ron Reimer “ in which he told her ________________. ” D. January 28, 2005 [ 26 ] Ms. Hering testified that during a meeting which she attended on January 28, 2005, Ms.

Blair indicated that use of the put- away feature was preferred next to listening to a call live, and how the monitors were to use it, as it was not physically possible to listen live to all calls due to the volume. [ 27 ] In her redacted can-say statement of February 25, 2010, she offered the following response to the question noted: 11. (If you became aware of the [put-away] controversy before the conclusion of Project Koker) Did you discuss that matter with superiors or with monitors? If so, describe these discussions.

During a meeting on January 28, 2005, Diana BLAIR relayed that V2 ______________and referred to a memo she circulated amongst the monitoring staff dated January 5, 2005 instructing monitors to listen to the call in its entirety only if time permits. Diana indicated that monitors were legally covered because of the instructions laid out in that circulated memo. [Emphasis added.] E.

August - December 2005 [ 28 ] The RCMP obtained wiretap authorization WT 1709, the first of five authorizations to intercept private communications under s 186 of the Code obtained during the course of Project Koker, which ran to November 2006. Sergeant Mark Anderson of the RCMP, the lead investigator in Project Koker, swore the affidavits in support of all five of the wiretap authorizations, as follows: Date of Affidavit Authorization Number Granted by Date When Authorizations in Place

August 22, 2005 WT1709 Slatter J Aug. 23, 2005 - Oct. 21 2005 October 13, 2005 WT 1712 (two concurrent authorizations) Slatter J Oct. 17, 2005 - Dec. 16, 2005 December 13, 2005 WT 1713 (two concurrent authorizations) Slatter J Dec. 14, 2005 - Feb. 13, 2006 [ 29 ] Sergeant Anderson testified that he prepared a proposed authorization for WT 1709 in consort with Mr. Robert MacDonald of Edmonton PPSC, who made the application before Slatter J. He mentioned that Paul Vanderstoop, a non-lawyer with the Legal Assistance Support Team, may also have assisted.

He was asked if the live monitoring references in the proposed authorization were based on a precedent and he responded that they were based on a national precedent provided by Mr. MacDonald. During cross- examination, he confirmed the minimization conditions in the WT1709 authorization were based on the national PPSC precedent that was being used coast-to-coast in 2005. [ 30 ] Sergeant Anderson was asked why he did not include anything about use of the put-away feature in the proposed authorizations given that he was aware in August 2005 that the civilian monitors were using the feature.

He responded that he did not do so as he “wasn’t alive to the fact that this was an issue at the time.” He said he knew there was case law where courts had said “live monitoring” was required for certain kinds of calls but he did not believe that that term was defined until the fall of 2009 in the R v Ansari decision [ R v Ansari , 2010 ONSC 1316 , 224 C.R.R. (2d) 288, also referred to as R v Ahmed ]. [ 31 ] Sergeant Anderson said that he was not aware when he was preparing his affidavits that use of the put-away feature had become a topic of discussion in Special “I” Edmonton after Ms.

Blair’s January 5, 2005 memorandum and that a meeting was held on January 28, 2005, attended by Ms. Hering and Ms. Blair, where issues concerning the put-away feature were discussed.

He testified that during the currency of the wiretap component of the Project Koker investigation, he did not have any contact with civilian monitors in Special “I” relating to any questions they might have about live monitoring and the put-away function, at least as far as he could recall. [ 32 ] In an undated can-say statement, Staff Sergeant Greig, who was a Program Manager for Technical Operations at RCMP “K” Division in 2005 and was appointed Acting Non-Commissioned Officer of Edmonton Special “I” in mid-2005, stated that he did not have knowledge the put-away feature was being used during Project Koker but: ...I can see why it would be viewed as controversial and if I had known at the time I would have sought advice from the Crown as I did with all the live monitoring on the project.

The Crown was very much hands on with this file and I would think been aware of any controversial technique. [ 33 ] As it turned out in Project Koker, monitoring of calls on lines requiring “live audio monitoring” sometimes involved monitors listening to the calls live while they were being recorded. On 72 occasions, the put-away feature was used before the parties had ended their conversations. In five of those, the monitor returned to the call once, while in one other the monitor returned to the private communication twice after the put-away feature was used but before the private communication ended.

The remaining 66 calls were put- away by the monitor during the conversation and were never returned to by the monitor. The Crown acknowledges that this last group of calls were in breach of the live monitor condition of the wiretap authorization. F. Wording of Wiretap Authorizations on Projects Requiring a Form of Live Monitoring [ 34 ] The following wording was used in wiretap authorizations in the 2003-2010 case lists for Edmonton and Calgary Special “I”:

Case Cross- Reference # Date of Authorization/First Interception Crown

Section of Criminal Code Wording E21 2003 Manitoba

Part VI Required “ live monitoring. ” E22 2003 Federal

Part VI- s. 184.2 with consent Required that certain communications be "monitored on an ongoing basis." E20 June 2003 Federal

Part VI Required that certain communications be "live monitored on an ongoing basis." E19 Nov. 2003 Alberta

Part VI Required that certain communications be "live monitored on an ongoing basis." C1 Feb. 2004 Alberta

Part VI Required that certain communications be "live-monitored." E18 Apr. 2004 Federal

Part VI Required that certain communications be "monitored live on an ongoing basis." E17 May 2004 Federal

Part VI Required that certain communications be "live monitored on an ongoing basis." E16 Dec. 2004 Alberta

Part VI - s. 184.2 with consent Required that certain communications be "monitored on an ongoing basis." C8 Jan. 2005 Alberta

Part VI Required that certain communications be "live-monitored. ” C7 Feb. 2005 Alberta

Part VI Required that certain communications be "live-monitored." C9 Mar. 2005 Federal

Part VI Required that certain communications be "live-monitored." C3 May 2005 Federal

Part VI Required that certain communications be "live-monitored." E15 July 2005 Federal

Part VI "...accompanied by live audio monitoring." WT 1709 in this case [E14] Aug. 23, 2005 Federal

Part VI "... accompanied by [...] live audio monitoring."

C5 Aug. 2005 Alberta

Part VI Required that certain communications be "live-monitored." WT 1712 in this case Oct. 17, 2005 Federal

Part VI "... accompanied by [...] live audio monitoring." C10 Oct. 2005 Alberta

Part VI Required that certain communications be "live-monitored." C4 Nov. 2005 Alberta

Part VI Required that certain communications be "live-monitored, on an ongoing basis." C6 Dec. 2005 Alberta

Part VI Required that certain communications be "live-monitored." WT 1713 in this case Dec. 14, 2005 Federal

Part VI "... accompanied by [...] live audio monitoring." E12 Dec. 2005 British Columbia

Part VI Contained a provision allowing “ selective monitoring ” to determine if target or a solicitor and client are parties to the call. C13 June 2006 Federal

Part VI - s. 184.2 with consent Required that certain communications be "monitored on an ongoing basis." C26 June 2006 Alberta

Part VI - 184.2 with consent) Consenting person must be present or is a party to the call. E10 Aug. 2006 Alberta

Part VI Required "live audio monitoring ” of certain communications. C14 Oct. 2006 Alberta

Part VI Required that certain communications be “ live- monitored ” and allowed “ selective monitoring ” to determine the identity of the principal known persons. C15 Oct. 2006 Federal

Part VI Required that certain communications be “ live- monitored ” and allowed “ selective monitoring. ” E9 Nov. 2006 British Columbia

Part VI Contained a provision allowing “ selective monitoring ” to determine if target or a solicitor and client are parties to the call. C11 Dec. 2006 British Columbia

Part VI Contained a provision allowing “ selective monitoring ” to determine if target or a solicitor and client are parties to the call.

C12 Dec. 2006 Alberta

Part VI Required that certain communications be “ live- monitored ” and allowed “ selective monitoring. ” C17 Feb. 2007 Alberta

Part VI Required that certain communications be “ live- monitored ” and allowed “ selective monitoring. ” C18 July 2007 Alberta

Part VI Required “ live audio monitoring ” of certain communications. C19 July 2007 Alberta

Part VI - s. 184.2 with consent Contained a provision allowing “ selective monitoring. ” E8 Oct. 2007 Federal

Part VI Required “ live audio monitored ” of certain communications. C21 Oct. 2007 Alberta

Part VI Required “ live audio monitoring ” of certain communications. C20 Nov. 2007 Alberta

Part VI Required that certain communications be “ live monitored ” and allowed “ selective monitoring. ” E7 Mar. 2008 Federal

Part VI Required “ live audio monitoring ” of certain communications. E6 July 2008 Alberta

Part VI - 184.2 with consent) Consenting person must be present or communicating with the principle known person. C22 Aug. 2008 Alberta

Part VI Required "live audio monitoring" C24 Dec. 2008 Alberta

Part VI Certain communications to be "live monitored" but allowing "selective monitoring" C25 Dec. 2008 Federal

Part VI Certain communications to have "live audio and/or visual monitoring [...] If the monitor determines at any point that a person listed in paragraph 3a is a party to the communications, the monitor may cease listening to the communication, but continue to record it." E5 Jan. 2009 Alberta - EPS

Part VI - 184.2 with consent Consenting person to be present and/or involved in the communcation. C31 Jan. 2009 Alberta

Part VI Certain communications required "live audio monitoring."

C30 Feb. 2009 Federal

Part VI Required "live audio monitoring" and "live monitoring." C27 Apr. 2009 Federal

Part VI Required "live audio monitoring"; "live monitoring." C28 Apr. 2009 Alberta

Part VI Required "live audio monitoring." C29 Apr. 2009 Alberta

Part VI Required "live audio monitoring. ” C32 July 2009 Federal

Part VI - 184.2 with consent Certain communications to be "monitored on an ongoing basis." C33 July 2009 Alberta

Part VI Required "live audio monitoring" and allowed "selective monitoring." C34 July 2009 Federal

Part VI Required "live audio monitoring" and "live monitoring." E4 Sept. 2009 Federal

Part VI Certain communications to be "live monitored." C35 Nov. 2009 Federal

Part VI - 184.2 with consent Certain communications to be "monitored on an ongoing basis." E3 Nov. 2009 Alberta

Part VI Required "live audio monitoring." E2 Feb. 2010 Alberta

Part VI - 184.2 with consent Required "live audio monitoring." E1 Mar. 2010 Alberta

Part VI - 184.2 with consent Required "live audio monitoring." III. Arguments of the Parties [ 35 ] The Applicants claim that the communications requested are not protected by solicitor-client privilege as: (1) that privilege has been waived; (2) the exception to such privilege relating to communications furthering unlawful conduct applies; and (3) the abuse of process exception for information necessary to make full answer and defence applies.

They also argue that the national precedents are relevant and not subject to litigation or solicitor-client privilege. [ 36 ] In terms of the exception to solicitor-client privilege relating to communications furthering criminal conduct, the Applicants acknowledge a mere allegation of unlawful conduct is not sufficient for the court to enter on an examination of the contested communications.

There must be evidence the allegation has a foundation in fact: Goldman, Sachs and Co v Sessions (1999), 38 CPC (4th) 143 at paras 20 and 30 (BCSC) . [ 37 ] The argument of the Applicants essentially is that disclosure of solicitor-client communications between the Edmonton PPSC wiretap agent and Sergeant Anderson will reveal that the Crown and the RCMP connived to keep the authorizing judge and Defence counsel in the dark with respect to their

interpretation of the term “live monitoring” and the manner in which Edmonton Special “I”

proposed to implement the “live monitoring” requirement in the authorizations. [ 38 ] The Applicants submit that an evidentiary foundation has been established suggesting that the authorizations in this case were crafted in such a way as to minimize the impact of the put-away issue. [ 39 ] They assert that there was a change in the language used for the live monitoring clause in authorizations between 2003, when the put-away feature first became available on introduction of the CenCIS II monitoring system, and 2005, when the authorizations in this case were granted.

They note Sergeant Anderson acknowledged in his September 20, 2011 testimony that the E20 authorization obtained by the Federal Crown on June 27, 2003, a previous wiretap investigation in which he was involved as an investigative monitor, required that certain communications be "monitored on an ongoing basis," in contrast to the wording of the live monitoring condition in the authorizations in this case.

Also, the live monitoring conditions disclosed from other authorizations on which the put-away feature was used show that monitoring “on an ongoing basis” was a requirement in authorizations E16 to E20 granted from June 2003 to December 2004.

The authorization at issue in R v Peluso , 2010 ONSC 1952 , granted April 30, 2005, also used that language. [ 40 ] The Applicants say the evidence discloses that the live monitoring language used in wiretap authorizations changed by January 2005 to simply require that communications be “live monitored” and that by October 2006 it again had changed to allow for “selective monitoring.” [ 41 ] The Applicants point out that Sergeant Anderson acknowledged in his September 19, 2011 testimony that the proposed authorizations he drafted in 2005 were based on a national precedent provided by the Department of Justice. [ 42 ] They submit that the evidence presented suggests that between 2003 and 2005, the PPSC amended its national wiretap authorization precedent to remove the reference to monitoring on an “ongoing basis.” They say this shows the meaning of live monitoring was a contentious issue in Special “I” prior to July 27, 2008, when the PPSC claims to have first acquired institutional knowledge of the put-away feature. [ 43 ] They point to the November 18, 2010 evidence of Ms.

Millar that the definition of “live monitoring” was discussed within Special “I” prior to 2008. They note the January 5, 2005 memorandum sent by Sergeant Florence and Ms. Blair, which stated that: "...[if] time permits, do not 'put-away' calls that are identified as targets. When you do 'put-away' a target call, please go in and check periodically to ensure that it is still our target on the line. If time permits, please listen to the live call in its entirety." The Applicants say that the testimony of Ms.

Hering suggests this memorandum was based on a change in legal advice concerning the put-away issue. [ 44 ] The Applicants contend the evidence supports the allegation that the Department of Justice may have advised Sergeant Anderson in 2005 to draft the live monitoring condition to reduce the impact of use of the put-away feature in future litigation. [ 45 ] The Applicants suggest that it is important to know if the change in language was based on changes in the national precedent or were made by the affiant himself, since the Crown intends to rely on the absence of wording requiring monitoring “on an ongoing basis” in its arguments concerning the meaning of “live monitoring.” [ 46 ] The Applicants maintain litigation privilege is not engaged in terms of the national precedents as they were not undertaken with the dominant purpose of preparing for the prosecutions.

Also, litigation privilege does not protect evidence of abuse of process or other blameworthy conduct. [ 47 ] The Crown contends the RCMP did not waive privilege simply because the Crown advised of the date when the PPSC learned that use of the put-away feature could be an issue, as it was required to do so by the court.

Nor did it waive privilege simply because the affiant was required to answer questions during cross-examination about the extent of his reliance on legal advice or wiretap precedents. [ 48 ] The Crown maintains the future crimes exception to solicitor-client privilege is not engaged merely because the Applicants

have challenged the manner of implementation of the wiretap authorizations. It says there is no basis for the court to conclude use of theput-away feature in the course of Project Koker constituted a criminal offence. The RCMP had obtained judicial authorizations tointercept private communications. While the Applicants argue use of the put-away feature failed to comply with the live monitoringrequirements in the authorizations, the Crown contends any such failure does not equate to wilful interception of private communicationunder s 184 of the Criminal Code.

The Crown also points out there is no evidence advice from PPSC was used as part of a deliberateattempt by the police to perpetrate a plan of wilfully intercepting private communications contrary to s. 184. [49] The Crown also asserts the innocence at stake exception to solicitor-client privilege does not apply in the context of anapplication for a judicial stay of proceedings based on abuse of process where the actual innocence of the accused is not at stake. [50] The Crown did not pursue its assertion that the national precedents are subject to litigation privilege.

It maintained, however,that they are irrelevant and subject to solicitor-client privilege. IV. Law A. Law on Solicitor-Client and Litigation Privilege [51] Solicitor-client privilege is a class privilege and, therefore, communications subject to this privilege prima facie are presumedinadmissible: R v McClure, 2001 SCC 14 at para 28, [2001] 1 SCR 445. The privilege arises when a communication is: (1) made inconfidence; (2) with a professional legal advisor; (3) for the purpose of giving and receiving legal advice: R v Campbell, (SCC), [1999] 1 SCR 565 at para 49 [also referred to as R v Shirose].

It is only the client who can waive the privilege: McClure atpara 37. [52] In R v Schacher, 2003 ABCA 313 at paras 15-19 and 22, 339 AR 119, the RCMP claimed solicitor-client privilege withrespect to advice given to an officer by one of its in-house counsel concerning the officer’s plan to gain the confidence of a suspect byselling him ephedrine, a precursor chemical used in the manufacture of methamphetamine. The Alberta Court of Appeal discussed theissue of solicitor-client, stating: First, it is clear that solicitor-client privilege enjoys exceptional status in Canadian legal systems. In Smith v.

Jones, (SCC), [1999] 1 S.C.R. 455 at 474, 132 C.C.C. (3d) 225 at paras. 44-45, the Supreme Court described solicitor-client privilege as thehighest privilege recognized by the courts and as being of fundamental importance to the administration of justice. It is based on theprinciple that individuals must be able to confide in legal professionals knowing that what they relay to those professionals will be keptin confidence regardless of content.

Given the complexity of our laws, there is added justification for this privilege, as citizens should besafe in the knowledge that all disclosures by them to their counsel will only be used in the prosecution of their claims or defence of casesagainst them: see also Anderson v. Bank of British Columbia (1876), 2 Ch. D. 644 (C.A.). In R. v. Gruenke, (SCC), [1991] 3 S.C.R. 263 at 289, 67 C.C.C. (3d) 289 at 305, Lamer C.J. spoke of solicitor-clientprivilege in the following terms: ...

The prima facie protection for solicitor-client communications is based on the fact that the relationship and the communicationsbetween solicitor and client are essential to the effective operation of the legal system. Such communications are inextricably linked tothe very system which desires the disclosure of the communication. In R. v. McClure, [2001] 1 S.C.R. 445, 151 C.C.C. (3d) 321, [2001] S.C.J. No. 13, 2001 SCC 14 at para. 2, Major J. described the roleof solicitor-client privilege in similar terms: Solicitor-client privilege describes the privilege that exists between a client and his or her lawyer.

This privilege is fundamental to thejustice system in Canada. The law is a complex web of interests, relationships and rules. The integrity of the administration of justicedepends upon the unique role of the solicitor who provides legal advice to clients within this complex system. At the heart of thisprivilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fullyrepresented.

I am not aware of any instance when solicitor-client privilege has been waived merely because a privileged document played a role in thedecision to proceed with a particular form of investigation. Court ordered waiver of privilege requires reasonable grounds to concludethat some overriding principle of law is engaged and not merely that the privileged document has some relevance. Mere relevance wouldresult in practically every communication being disclosed, as it is unlikely that a police officer would seek a legal opinion that was notrelevant to some issue in his investigation.

The jurisprudence regarding the sanctity of solicitor-client privilege makes it clear that mererelevance is not enough. Even though solicitor-client privilege enjoys special protection as a substantive rule of law, it is not absolute and on rare occasions willbe overruled due to conflict with another legal principle. In Smith v. Jones, supra, the Supreme Court outlined three occasions whensolicitor-client privilege may be overruled, namely when innocence at stake is engaged, the client's communications are themselvescriminal, or it is necessary to protect public safety.

At the heart of each of these is an overriding principle of law which is only to beapplied rarely and in the clearest of cases. Consequently, procedures and rules have been established to ensure that solicitor-clientprivilege will not be lightly set aside. ... This exception [to protect public safety] plays no role in this appeal.

I only refer to it to demonstrate that the Supreme Court repeatedlymakes the point that it is rare that an exception to solicitor-client privilege will be invoked to waive the privilege, and that it has adoptedprocedures and set out rules to ensure that waiver will only be granted in rare, exceptional cases. [Emphasis added.] [53] Unlike solicitor-client privilege, litigation privilege is based on the need for litigants to have a protected sphere of privacy inorder to prepare for pending or anticipated litigation.

Litigation privilege extends to communications of a non-confidential naturebetween a solicitor and third parties and also includes material of a non-communicative nature. The privilege applies, however, onlywhen the communication or document involved was created for the dominant purpose of litigation: Blank v Canada (Minister ofJustice), 2006 SCC 39 at paras 27-28 and 60, [2006] 2 SCR 319).

Litigation privilege comes to an end when the litigation itself andrelated litigation conclude: Blank at paras 36-41). [54] Litigation privilege does not protect from disclosure evidence of the claimant's abuse of process or other blameworthyconduct: Blank at para 44. As noted by the court in Blank at para 45: “ ... the party seeking their disclosure may be granted access tothem upon a prima facie showing of actionable misconduct by the other party in relation to the proceedings with respect to whichlitigation privilege is claimed.” B.

Waiver of Solicitor-Client Privilege [55] Solicitor-client privilege can be waived intentionally. Also, it is deemed to be waived when a party alleges good faith belief inthe legality of its actions and asserts its reliance on the legal advice to bolster that position: Campbell at para 67. [56] The fact a litigant is compelled to answer questions in the course of litigation does not constitute a voluntary waiver ofprivilege: R v Creswell, 2000 BCCA 583, 149 CCC (3d) 286. C.

The Future Crimes Exception [57] In Campbell at para 55, Binnie J discussed the exception where the solicitor-client communications are to facilitate a crime: It is well established, as the appellants argue, that there is an exception to the principle of confidentiality of solicitor-clientcommunications where those communications are criminal or else made with a view to obtaining legal advice to facilitate thecommission of a crime. The exception was noted by Dickson J. in Solosky v. The Queen, (SCC), [1980] 1 S.C.R. 821, atpp. 835-36:

More significantly, if a client seeks guidance from a lawyer in order to facilitate the commission of a crime or a fraud, thecommunication will not be privileged and it is immaterial whether the lawyer is an unwitting dupe or knowing participant. The classiccase is R. v. Cox and Railton [(1884), 14 Q.B.D. 153], in which Stephen J. had this to say (p. 167): "A communication in furtherance ofa criminal purpose does not 'come in the ordinary scope of professional employment'." [58] The officer in that case sought advice about whether or not the operation he had in mind was lawful.

Binnie J commented atpara 56, 59 and 62-63 that: ... This is the sort of transaction advice sought every day from lawyers. In my view, the privilege is not automatically destroyed if thetransaction turns out to be illegal. . . . This explanation is consistent with the statement of the principle of Lamer J. in Descôteaux [Descôteaux v.

Mierzwinski, (SCC), [1982] 1 S.C.R. 860], supra, at p. 881: Confidential communications, whether they relate to financial means or to the legal problem itself, lose that character if and to the extentthat they were made for the purpose of obtaining legal advice to facilitate the commission of a crime. . . . In my view, destruction of the privilege takes more than evidence of the existence of a crime and proof of an anterior consultation with alawyer. There must be something to suggest that the advice facilitated the crime or that the lawyer otherwise became a "dupe orconspirator". The evidence of Cpl.

Reynolds does not establish such things, but the formal position of the Crown, with the support of theRCMP, goes beyond his evidence. The RCMP position before the Court was that the decision to proceed with the reverse sting had beentaken with the participation and agreement of the Department of Justice. By adopting this position, the RCMP belatedly brought itselfwithin the "future crimes" exception, and put in question the continued existence of its privilege.

If there had been no waiver of privilege by the RCMP in this case, I would have taken the view that any papers documenting the legaladvice (or, if there was no contemporaneous documentation, an affidavit setting out the content of the relevant advice) ought to beprovided in the first instance to the trial judge. If he or she were satisfied, either on the basis of the documents themselves or on the basisof the documents supplemented by other evidence, that the documented advice could be fairly said in some way to have facilitated thecrime, the documents would then be provided to the appellants.

If the lawyer had merely advised about the legality of the operation, andthereby made himself neither dupe nor conspirator in the facilitation of a crime, the proper course would have been to return the papers tothe RCMP. D. Innocence at Stake Exception [59] The appeal in Campbell was decided on the basis of waiver of solicitor-client privilege.

Binnie J at para 66 left for anotherday a decision on “whether, in the absence of waiver, full answer and defence considerations may themselves operate to compel thedisclosure of solicitor-client privilege of communications in an abuse of process proceeding, and, if so, in what circumstances.” [60] In R v McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, the court set out the test that must be met before the innocence at stakeexception to solicitor-client privilege will apply.

Major J in R v Brown, 2002 SCC 32 at para 4, [2002] 2 S.C.R. 185 summarized thattest: The McClure test comprises a threshold question and a two-stage innocence at stake test, which proceed as follows:

- To satisfy the threshold test, the accused must establish that: - the information he seeks from the solicitor-client communication is not available from any other source; and - he is otherwise unable to raise a reasonable doubt. - If the threshold has been satisfied, the judge should proceed to the innocence at stake test, which has two stages. - Stage #1: The accused seeking production of the solicitor-client communication has to demonstrate an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his guilt. - Stage #2: If such an evidentiary basis exists, the trial judge should examine the communication to determine whether, in fact, it is likely to raise a reasonable doubt as to the guilt of the accused. - It is important to distinguish that the burden in the second stage of the innocence at stake test (likely to raise a reasonable doubt) is stricter than that in the first stage (could raise a reasonable doubt). - If the innocence at stake test is satisfied, the judge should order disclosure of the communications that are likely to raise a reasonable doubt, in accordance with the guiding principles discussed infra. [ 61 ] The test for innocence at stake can only be made out where the accused cannot raise a reasonable doubt in any other way.

Accordingly, the analysis relating to this exception to solicitor-client privilege generally should be deferred until at least the end of the Crown’s case or such other time when the court is of the view the accused will be unable to raise a reasonable doubt without the evidence protected by the privilege: R v Brown , 2002 SCC 32 at paras 52-54 , [2002] 2 SCR 185. [ 62 ] Ritter JA in R v Schacher , 2003 ABCA 313 , 179 CCC (3d) 561 stated at paras 23-24 : In R. v.

McClure , supra , the Supreme Court set out a number of procedures to be followed and factors to be met before privilege can be set aside on account of this exception. The issue is to be determined by way of a two stage process. At the first stage, the accused person must establish that there is some evidentiary basis for the claim that solicitor-client communication exists which could raise a reasonable doubt as to the guilt of the accused . In this case, the appellant concedes that the communication exists.

However, it does not concede that the communication could raise a reasonable doubt about the guilt of the respondent. I will consider this issue when I deal with the issue of whether entrapment is to be treated as equivalent to innocence at stake for the purposes of waiver of solicitor-client privilege, and when I consider the effect of the regulations. If the accused person is able to satisfy the court at the first stage, the trial judge should move to the second stage of the analysis.

Conversely, if the accused is not able to satisfy the trial judge with respect to one or both elements of the first stage, the matter ends there. At the second stage, the trial judge examines the privileged communication and determines whether there is anything in the communication which is likely to raise a reasonable doubt as to the guilt of the accused .

If the trial judge concludes that the communication contains something that is likely to raise a reasonable doubt as to the guilt of the accused, then disclosure of it should be ordered. [Emphasis added.] [ 63 ] In considering whether entrapment could be equated with innocence at stake for the purposes of waiver of privilege, Ritter JA in Schacher commented at para 27 :

However, when I consider the language in R. v. McClure , supr a, I conclude that the Supreme Court does not see the two as equal and that entrapment will almost never lead to privilege being set aside. In McClure at para. 58 , Major J., speaking for the unanimous court, makes the following observation: After a review of the evidence of the solicitor-client communication in question, the judge must decide whether the communication is likely to raise a reasonable doubt as to the guilt of the accused.

In most cases, this means that, unless the solicitor-client communication goes directly to one of the elements of the offence, it will not be sufficient to meet this requirement. Simply providing evidence that advances ancillary attacks on the Crown's case (e.g., by impugning the credibility of a Crown witness, or by providing evidence that suggests that some Crown evidence was obtained unconstitutionally) will very seldom be sufficient to meet this requirement .[Emphasis added.] [ 64 ] Ritter JA in Schacher at para 28 reviewed this passage and concluded: I find the examples within this passage to be compelling.

Privilege should not be set aside where the underlying document establishes that evidence was obtained unconstitutionally. As abuse of process is subsumed in the Charter , evidence obtained as a result of that abuse is evidence that has been obtained unconstitutionally. While McClure does not completely close the door on constitutional defences being the basis for waiver of privilege, it states that ancillary attacks on the Crown's case will very seldom be sufficient to meet the requirement of the evidence likely raising a reasonable doubt as to the accused's guilt .

When something is seldom done, and that something is a subset of something else that is rarely done, then doing the thing must be reserved for extremely unusual situations... [Emphasis added.] [ 65 ] Ritter JA continued his analysis, assuming for the sake of argument that, contrary to his actual conclusion, the case before him was one of those exceedingly rare situations where entrapment could be equated with innocence at stake.

He indicated that unless the legal opinion was relevant to the allegation of entrapment, it should not be disclosed. [ 66 ] At paras 30-35, Ritter JA discussed when solicitor-client privilege may be set aside on the basis of innocence at stake: Before privilege may be set aside on the basis of innocence at stake, it must be established that the document to which privilege attaches could provide evidence that could raise a reasonable doubt as to the guilt of the person seeking the waiver.

At this stage, I will assume for the sake of argument (contrary to my conclusions above), that this is one of those exceedingly rare situations where entrapment may be equated with innocence at stake. Consequently, the issue becomes what aspect of entrapment the opinion is potentially relevant to, for if the legal opinion is not relevant to the allegation of entrapment, it should not be disclosed. Legal opinions obtained by the police are probative with respect to entrapment in a number of instances.

One is where the Crown suggests, or there is good reason to believe, that the opinion will be relied on by a police officer to justify a sting operation that has been determined to be illegal, in other words where a good faith argument is advanced or is likely to be advanced . In those instances, the legal opinion is admissible because, by relying on it, the police officer has himself waived the privilege: see R. v. Shirose , supra . However, there is nothing here to suggest that the Crown is relying on the legal opinion to make a good faith argument.

In fact, the appellant has made it clear that it is not relying on a good faith argument to justify any entrapment, but rather relies on the position that entrapment cannot, in law, exist in the circumstances of this case. Legal opinions may also be relevant to show that a police officer received an opinion which suggested that a proposed sting operation was illegal and then disregarded the opinion. In that situation, the actions of the police officer would be considered to be more egregious than would otherwise be the case. This is then a factor that informs the trial judge's discretion regarding a remedy .

Likewise, communications may become relevant when a police officer requests legal advice and the advice given is deficient in the sense that the opinion was done hurriedly, negligently or was "off the cuff". Such opinions would be relevant because they would demonstrate a cavalier attitude on the part of the authorities which would elevate the egregious nature of the overall conduct involved. Again, with respect to both these latter occasions where the opinion may be relevant, it is presumed that the conduct of the police officer could, in law, constitute entrapment .[Emphasis added]

[ 67 ] Clackson J in R v Polo , 2005 ABQB 250 , 195 CCC (3d) 412 reviewed these and other authorities before determining at para 22: In my view, the language used by both Major, J. and Ritter, J. is so strong that if there is an exception for prosecutorial misconduct that misconduct must be something that fundamentally deprives the accused of his ability to adequately defend himself . It would not be enough that an accused has suffered some disadvantage, slight, impropriety or loss opportunity. Rather, it seems to me that the abuse would have to strike at the very notion of the presumption of innocence .

The abuse must be such as to create a real risk of wrongful conviction. For example if the police planted evidence or coerced a statement implicating the accused, either of which might lead to a wrongful conviction, then that may be the kind of misconduct which would justify a finding that the process has been so badly abused that a stay of proceedings is the only alternative.

However, even in those starkly offensive circumstances, the McClure threshold and the stages of the test promulgated by Major, J. in that decision must be satisfied before the solicitor-client privilege which may attach to the communications relating to the misconduct must be set aside. V. Analysis A. Relevance of National Wiretap Authorization Precedents [ 68 ] The Applicants sought and obtained disclosure of live monitoring conditions used in certain wiretap authorizations implemented by Alberta Special “I” between 2003 and 2010.

They have used that information to argue on the abuse of process motion that the PPSC and RCMP have been alive to the live monitoring issue since December 2004 or January 2005. They now seek the national precedents that were in use by the RCMP and the PPSC during that time period.

The Crown argues that the information is irrelevant. [ 69 ] The Applicants suggest it is important to know if the change in language from live monitoring “on an ongoing basis” to simply “live monitoring” which is apparent in the live monitoring conditions in authorizations granted from 2003 to 2010 was based on changes in the national PPSC precedent or were made by the affiants since the Crown relies on the absence of this wording in its arguments concerning the meaning of “live monitoring.” [ 70 ] They say the evidence presented suggests the PPSC had institutional knowledge of the put-away feature prior to July 28, 2008 despite its representations, and the national precedent for authorizations changed to eliminate reference to ongoing live monitoring between 2003 and 2005, after the CenCIS II system was introduced.

They say it shows the meaning of live monitoring was a contentious issue in Special “I” prior to 2008 and the evidence supports the allegation the Department of Justice may have advised Sergeant Anderson to change the live monitoring condition to reduce the impact of the use of the put-away feature in future litigation. [ 71 ] I see limited or no relevance to national precedents which may or may not have been followed. The Applicants already have the evidence necessary to show the evolution of the live monitoring clause in authorizations which were granted.

While Sergeant Anderson testified that he consulted a national precedent in preparing the draft authorizations in this case, the RCMP is not advancing a “good faith” argument for purposes of the first stage of the Grant analysis under s 24 of the Charter .

Although the Crown relies on the absence of wording requiring live monitoring “on an ongoing basis” in the authorizations in this case, it would not be precluded from making that argument simply because the wording used did or did not come from a national precedent. [ 72 ] The Applicants argue that the national precedents will reveal that the PPSC was aware of the put-away issue at a much earlier date than July 27, 2008, when it claims “ the Director or his or her designate - obtained institutional knowledge that an issue had arisen as to whether the ‘put away’ feature to set aside calls by the RCMP may or may not be in breach of the wire authorizations.” It says this is relevant to reassessment of my decision on the delay motion as the Defence was not advised of the put-away issue until January 2010.

The precedents might show a change in language in the live monitoring clauses, similar to the change reflected in the authorizations granted from 2003 to 2010. This does not necessarily equate to knowledge by the PPSC that “an issue had arisen” concerning use of the put-away feature. However, to the extent that they are relevant to this issue, I have concluded, as discussed below, that they are subject to solicitor-client privilege which has not been waived and they do not otherwise fall within the exceptions to solicitor-client privilege.

B. Solicitor-Client and Litigation Privilege [ 73 ] The communications between Mr. MacDonald of Edmonton PPSC and Sergeant Anderson, the affiant for the wiretap authorizations in the Koker A prosecution, those between Mr. Reimer or other Edmonton PPSC representatives and Edmonton Special “I” civilian monitors, and the national wiretap authorization precedents are prima facie inadmissible: McClure .

Solicitor-client privilege arises because the communications were: (1) made in confidence; (2) with a professional legal advisor; (3) for the purpose of giving and receiving legal advice: Campbell [also referred to as Shirose ]. [ 74 ] In considering whether the Applicants are entitled to disclosure of communications between Edmonton PPSC and Sergeant Anderson or the Special “I” civilian monitors, it is necessary to bear in mind that solicitor-client privilege enjoys exceptional status in Canadian law.

The Supreme Court of Canada has described it as the highest privilege recognized by the courts and of fundamental importance to the administration of justice. As noted in Schacher at para 15 : ... [i]t is based on the principle that individuals must be able to confide in legal professionals knowing that what they relay to those professionals will be kept in confidence regardless of content.

Given the complexity of our laws, there is added justification for this privilege, as citizens should be safe in the knowledge that all disclosures by them to their counsel will only be used in the prosecution of their claims or defence of cases against them. C. Waiver of Solicitor-Client Privilege [ 75 ] It is only the client who can waive solicitor-client privilege: McClure at para 37 . In this case, that would be the RCMP. It has not waived the privilege expressly. [ 76 ] The Applicants contend in the present case that solicitor-client privilege was waived implicitly as a result of: (

a) Sergeant Anderson’s evidence on the abuse of process motion as to when he first learned of the “put-away issue; (

b) Sergeant Anderson’s evidence on the abuse of process motion that he consulted with a Crown Agent in preparing the draft authorizations and used a national PPSC precedent; (

c) the Crown’s disclosure letter of July 16, 2010 stating: “... the earliest the Edmonton office of the PPSC could have learned that calls on Project Koker were “set aside” was on December 16, 2009;” and (

d) the Crown’s disclosure of the redacted civilian monitor’s can-say statements in which they referenced discussions with the PPSC. [ 77 ] There is no allegation that privilege over the national wiretap authorization precedents was waived, other than the one consulted by Sergeant Anderson. [ 78 ] The fact a litigant is compelled to answer questions in the course of litigation does not constitute a voluntary waiver of privilege: Creswell .

In Creswell , defence counsel asked a police witness during the course of an abuse of process motion whether the police had sought and obtained legal advice about the reverse sting operation and the witness responded that they had. The Court of Appeal held this was not a waiver of privilege since the Crown was not affirmatively advancing a good faith argument and the existence of legal advice was elicited from the witness during cross-examination by opposing counsel.

By analogy, information disclosed as a result of a court order cannot form the basis of a waiver argument. [ 79 ] Sergeant Anderson in this case was merely answering questions posed to him by counsel during the abuse of process motion. Further, the Crown’s July 16, 2010 letter was provided in response to my disclosure ruling of June 14, 2010 that it disclose "[t]he date

that PPSC Edmonton obtained institutional knowledge of the 'put away' issue in December 2009" as well as "timing of the PPSC federal institutional knowledge and how long it had such knowledge of the 'put away' issue prior to advice to the Edmonton office in December of 2009." As such, these could only constitute a waiver of solicitor-client privilege if the Crown was advancing a “good faith” argument. [ 80 ] However, the Crown in a letter to counsel for the Applicants dated March 5, 2010 advised that: Some of the disclosure (e.g. can-says) has been vetted on the basis of solicitor-client privilege.

The manner of the vetting may cause counsel to speculate as to the legal advice provided. One such focus of speculation may be that the procedure employed by the RCMP with respect to the use of the “put-away” function followed the Crown’s legal advice.

While I am not at liberty to confirm or deny the accuracy of such speculation due to solicitor-client privilege, I can advise that should this issue result in a s. 24(2) application, the Crown will not be asserting that the RCMP followed its legal advice for the purposes of argument regarding the first stage of the Grant analysis (i.e. seriousness of the Charter -infringing State conduct.) [ 81 ] In terms of the redacted can-say statements, it cannot be said that the RCMP waived solicitor-client privilege given that the Crown specifically withheld the advice given. [ 82 ] Accordingly, I do not find that the RCMP waived solicitor-client privilege over the communications at issue.

D. The Future Crimes Exception [ 83 ] Knapczyk and Alcantara allege that the solicitor-client communications for which they seek disclosure in this case fall within the future crimes exception discussed by Binnie J in Campbell at para 55 . [ 84 ] The Campbell decision is instructive. The officer in that case sought advice about whether or not a reverse sting operation he had in mind was lawful. Binnie J noted that transaction advice is sought every day from lawyers and commented that solicitor-client privilege is not automatically destroyed if the transaction turns out to be illegal.

However, confidential communications lose that character “if and to the extent that they were made for the purpose of obtaining legal advice to facilitate the commission of a crime.” There must be something to suggest that the advice facilitated the crime or that the lawyer otherwise became a dupe or conspirator. [ 85 ] The RCMP’s position in Campbell was that the decision to proceed with the reverse sting had been taken with the participation and agreement of the Department of Justice.

Binnie J found that by adopting this position, the RCMP brought itself within the "future crimes" exception, and put in question the continued existence of its privilege. If the RCMP had not waived the privilege, he would have directed that the communications containing the legal advice be provided to the trial judge to determine if they could fairly be said to have facilitated the crime.

He indicated that if the lawyer merely had advised about the legality of the operation, and thereby made himself neither dupe nor conspirator in the facilitation of a crime, the proper course would have been to return the papers to the RCMP. [ 86 ] Knapczyk and Alcantara assert that the “future crime” planned by the RCMP and facilitated by Crown advice as to its propriety was the obtaining of authorizations to intercept private communications knowing the authorizations would be implemented in breach of the court ordered condition that the communications be live monitored.

They submit that the RCMP knew when the authorizations were obtained in Koker A that they could not observe a requirement to live monitor the telephone calls due to resource limitations. Further, they argue that interception of private communications in breach of a court order is criminal activity and contrary to s 184 of the Criminal Code .

They ask that the Campbell procedure be employed whereby the court orders disclosure to it of the advice that was provided and, if the documented advice could fairly be said to have facilitated the crime, the court then orders that the documents be disclosed to the Applicants. [ 87 ] The evidence discloses that Edmonton Special “I” used the put-away feature as the need arose from the time the CenSIS II electronic monitoring equipment was installed in 2003.

It also discloses that civilian monitoring staff at Edmonton Special “I” were in communication with Edmonton PPSC about the “live monitoring process” as early as December 2004.

[88] I conclude from Ms. Blair’s and Sergeant Bryce’s memorandum of January 5, 2005 and from the can-say statements of Ms.Blair, Ms. Soutar and Ms. Hering, against the backdrop of Ms. Blair’s meetings with Mr. Reimer, that she and Mr. Reimer discussed livemonitoring conditions in wiretap authorizations and the process of implementing those conditions as early as December of 2004/Januaryof 2005.

From the tenor and text of the January 5, 2005 memorandum, and other evidence relating to this time period, I infer that theydiscussed the process of recording calls on live monitoring lines once a target was identified, without listening to them in real time.

Theevidence does not speak to whether the discussions went so far as to include the mechanics of using a button or icon called the “put-away” feature to effect this implementation procedure, but that is a semantic distinction without a difference. [89] I also infer this discussion involved legal advice relating to what was meant and required by a “live monitoring” condition. [90] The majority of wiretap authorizations obtained in 2003 and 2004 which required a form of live monitoring provided thatcertain communications be monitored or live monitored “on an ongoing basis.” By January 2005, the requirement for monitoring “on anongoing basis” largely had disappeared.

Wiretap authorizations spoke only of “live monitoring.” By October 2006, the live monitoringlanguage again had changed to allow for “selective monitoring.” This is unlikely to have been merely coincidental, or conceived withoutan understanding as to the different semantic nuances of those phrases.

No explanation has been forthcoming from the Crown as to whatprompted these change. [91] I infer that consideration of the term “live monitoring” and its meaning occurred within the Alberta PPSC, and betweenmembers of the Alberta PPSC and the Alberta Special “I” from at least December 2004. [92] At the time, there was little case law on the subject of live monitoring. It had been discussed to a certain extent in R vThompson, (SCC), [1990] 2 SCR 1111.

In R v Garofoli, (SCC), [1990] 2 SCR 1421, the defencecomplained of the failure to impose conditions in the authorization that would minimize the interception of irrelevant communications.Sopinka J for the majority stated at paras 94- 97: In Thompson I recognized that with any wiretap authorization there is a possibility of invasion of the rights of innocent third parties. It isan unfortunate cost of electronic surveillance, but one that Parliament has judged is justified in appropriate circumstances in theinvestigation of serious crime.

Likewise, the interception of irrelevant conversations, with the resultant invasion of the privacy of thetarget and third parties, is an unfortunate cost of electronic surveillance. The question is: is the cost so great that it renders theauthorization unreasonable? The circumstances in the case at bar are that some 950 irrelevant telephone calls from Garofoli's home were intercepted under theSeptember 29 authorization.

This invasion of privacy is regrettable, but is at least limited in its effect to persons visiting Garofoli's home.This is to be contrasted, for instance, with a public pay telephone, where the privacy of the public at large is threatened. It appears to methat the only feasible method of eliminating the recording of irrelevant calls on Garofoli's telephone line would have been a requirementof live monitoring.

Even this method might be ineffective, for the relevance of a particular conversation cannot necessarily be determinedwith certainty until the content of a conversation is considered along with all other information gathered in an investigation. Furthermore,relevance cannot always be determined with certainty by listening, for instance, to the first few words of a conversation. Irrelevant callswould still have to be listened to long enough to determine that they are irrelevant. In Thompson I adopted the position taken by Martin J.A. in R. v.

Finlay and Grellette, supra, that an absolute requirement of livemonitoring in all cases would impose too heavy a burden on Canadian law enforcement officials. In my view, while a requirement of livemonitoring or visual confirmation would generally be appropriate when telephone calls are proposed to be intercepted at public paytelephones, the same considerations do not apply with respect to the private residence of a person named in an authorization unless thereare special circumstances calling for live monitoring.

It must be remembered that constant live monitoring of a private residence can alsoconstitute a serious invasion of privacy. The presence of special circumstances must be determined on the basis of what will enable the police to obtain the evidence with aminimum invasion of privacy. Thus, if the information in the possession of the police indicates that the subject visits the premises onlyoccasionally and for a short duration, this should be reflected in the extent of the electronic surveillance. It may require live monitoring

to determine the presence of the target and indeed may be a term in the authorization. Wholesale interception of all communication in andout of the residence in these circumstances will run the risk of being found to be an unreasonable search and seizure. On the other hand,if the target is an occupant and is usually present, other considerations will apply. Such information may be lacking initially but willoften be available after a period of electronic surveillance pursuant to a valid authorization.

On renewal, or application for a newauthorization, this information must be utilized to minimize the invasion of privacy. [93] In R v Willis (1997), (AB CJ), 204 A.R. 161 (Prov Ct), the wiretap authorization under considerationprovided for the interception of private communications of known persons at: 5(

b) Any cellular telephone used within Canada by a known person, including the following cellular telephone(s)...

Provided however that any telecommunications intercepted from a cellular telephone not specifically named as a place of interceptionpursuant to this Authorization must be live-monitored, and interception must be discontinued unless the monitor believes on reasonablegrounds that a known person is a party to the telecommunication. [94] As noted by the Crown in the present case, this live monitoring clause is substantially the same as the live monitoring clausein the Koker A wiretap authorizations. [95] The Willis authorization also provided: 6.

In situations in which interception is to be discontinued unless the monitor believes on reasonable grounds that a known person isa party to the communication, the identity of a known person may be determined by selective monitoring, voice identification, and/orphysical surveillance. The exception to this is the situation in which a pay telephone is used.

The terms and conditions for theinterception of pay telephones are found in paragraph 5(f); [96] In assessing whether the telephone calls sought to be entered into evidence had been intercepted in accordance with theauthorization, Hamilton Prov Ct J stated at paras 17 and 44 of Willis: The Supreme Court of Canada in both R. v. Thompson (SCC), [1990] 2 S.C.R. 1111 at 1137 and R. v. Garafoli (SCC), [1990] 2 S.C.R. 1421 at 1468 has found that the requirement of live-monitoring of all interceptions is too onerous aburden to impose on law enforcement officials.

Nevertheless, the Authorization herein is worded in such a way as to make it mandatory,in the resort to clauses, that live-monitoring take place until such time as the monitor believes on reasonable grounds that a known partyis a party to the communication... . . . The police had an Authorization permitting them to intercept the communications of the accused, a known person, in numeroussituations. Certain limited situations required live-monitoring be conducted to ascertain that the accused was on the line before hiscommunications could be intercepted.

Once it was established on reasonable belief he was the known person on the line, thelive-monitoring could be discontinued. The calls being tendered are calls to which the accused was a party, which were apparently notlive-monitored as per the strict terms of the Authorization. [97] In R v Ng, (2001), 49 W.C.B. (2d) 330 (Ont. SCJ), the authorization under consideration required that communications intercepted on cell phones be “monitored on an ongoing basis.” Evidence was led that monitorsoccasionally might live monitor two separate lines at the same time.

Ewaschuk J found no breach of the monitoring terms of theauthorization. At para 35, he stated: The purpose of live monitoring is to ensure that the private communications of unknown parties who are not acting in concert with

known parties are not intercepted. The monitors were instructed accordingly, and understood and followed those instructions.

Furthermore, the monitors explained that they could hear all the voices on both calls so that, if a new voice appeared, they would then turn their immediate attention to those private communications in order to determine if they could be intercepted according to the "acting in concert" term of the authorizations. [ 98 ] It is likely the Edmonton PPSC was aware by December 2004 that courts had considered the exact phrasing of live monitoring clauses in determining whether particular authorizations had been appropriately implemented and that the terms “live monitored” and “monitored on an ongoing basis” had been or might be differently interpreted. [ 99 ] From the chart of live monitoring language used in Edmonton and Calgary Special “I” files, I conclude that the live monitoring language was changed in or about January 2005 in an effort to obtain judicial authorization for wiretap interception that did not require live monitoring “on an ongoing basis.” [ 100 ] Sergeant Anderson testified that the pre-wire portion of the Koker A investigation was carried out from January 5, 2005 to August 23, 2005.

The wire applications and authorizations ran from August through November 2005. Sergeant Anderson was asked why he did not include anything about use of the put-away feature in the proposed authorizations given that he was aware in August 2005 that the civilian monitors were using the feature.

He responded that he did not put anything in the authorizations about the put-away feature as he “wasn’t alive to the fact that this was an issue at the time.” [ 101 ] The evidence does not show that Sergeant Anderson was aware of any legal issues around the meaning of the term “live monitoring” or whether use of the put-away feature would comply with such a requirement. [ 102 ] In

summary, I conclude that Mr. Reimer of Edmonton PPSC gave legal advice to Ms. Blair in their meetings of December 2004 and January 2005 relating to what was meant and required by a “live monitoring” condition and that the Alberta PPSC by December 2004 was alive to the importance of the precise wording of live monitoring clauses used in wiretap authorizations. [ 103 ] As Binnie J stated in Campbell at para 56 : “[t]his is the sort of transaction advice sought every day from lawyers.

In my view, the privilege is not automatically destroyed if the transaction turns out to be illegal.” [ 104 ] The implementation of a wiretap authorization that breaches a condition of that authorization may yield Charter remedies. However, there is no evidence of criminal intent in this case that would prove a crime has been committed contrary to s 184 of the Criminal Code . [ 105 ] In Campbell , the RCMP adopted the position that the reverse sting was planned and implemented with the participation and agreement of the Department of Justice.

The court concluded that because the planned activity of selling narcotics was facially illegal, the RCMP had brought itself within the future crimes exception to solicitor-client privilege. [ 106 ] In this case, the RCMP have not relied on the legal advice to justify their conduct in obtaining and implementing the authorizations. They contend that their activities, in the main, did not breach the live monitoring condition in those authorizations. Further, the conduct about which legal advice was sought in this case was not facially criminal activity as was the situation in Campbell .

The planned RCMP activity here was the interception of private communications with court authorization. While it may turn out that implementation of the authorizations is determined to have been contrary to the live monitoring condition in those authorizations, it cannot be said to have been facially criminal activity. [ 107 ] I conclude that the Applicants have not brought themselves within the future crimes exception to solicitor-client privilege. E. Innocence at Stake Exception

[ 108 ] According to the approach to this exception set out in McClure , the Applicants must satisfy the threshold test that the information sought from the solicitor-client communications is not available from any other source and that they otherwise are unable to raise a reasonable doubt as to their guilt. The information sought in this case are the communications between Edmonton PPSC and the affiant, Sergeant Anderson, or Special “I” monitors, during the pre-authorization phase of the Koker A investigation, and the national precedents.

Those communications are not available from any other source and I will assume for purposes of this portion of the analysis that the Applicants otherwise are unable to raise a reasonable doubt as to their guilt. [ 109 ] The next question to be addressed is whether there is an evidentiary basis for the Applicants’ claim that solicitor-client communications exist which could raise a reasonable doubt as to their guilt. [ 110 ] The Applicants submit that the legal advice provided by Edmonton PPSC to Sergeant Anderson in the preparation of the applications for the wiretap authorizations in the Koker investigation resulted in evidence being obtained in breach of the Charter in that: (

a) the duty of full and frank disclosure was not met as the authorizing judge was not apprised of the “live monitoring issue” and of staff shortages that meant the condition would be implemented by Edmonton Special “I” as a selective or intermittent monitoring clause; and (

b) the RCMP implemented the live monitoring condition by intercepting and recording communications in certain instances without first identifying that a target was a party to the call; in others they identified the target was a party to the call and then put the call away; and in others still, they identified the target was a party to the call, put the call away but intermittently listened in to ensure the target was still on the

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