R v Caines, 2011 ABQB 692

Court of Queen ’ s Bench of Alberta Citation: R v Caines, 2011 ABQB 692 Date: 20111110 Docket: 070060157Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Jeffrey Mark Caines, John Reginald Alcantara and Alan Peter Knapczyk Accused _______________________________________________________ Abuse of Process Motion Reasons for Judgment of the Honourable Madam Justice S.J. Greckol _______________________________________________________ I. Nature of the Application [ 1 ] The Applicants John Reginald Alcantara [Mr. Alcantara] and Alan Peter Knapczyk [Mr.

Knapczyk] have applied for a stay of the proceedings against them. They claim the conduct of the police in failing to comply with live monitoring requirements of the wiretap authorizations in this case and the conduct of the Crown in terms of disclosure of that issue and its failure to bring the various conflicts of interest regarding Jamel H. Chadi to the attention of the Court amount to an abuse of process and have impaired their fair trial interests under s 7 of the Charter . II. Background [ 2 ] Mr. Alcantara and Mr. Knapczyk were arrested on November 26, 2006. They and their co-accused, Jeffrey Mark Caines

[ 2 ] Mr. Alcantara and Mr. Knapczyk were arrested on November 26, 2006. They and their co-accused, Jeffrey Mark Caines [Mr. Caines], were 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 ] and substantive trafficking contrary to s 5(1) of the CDSA . Mr. Alcantara and Mr. Knapczyk also were jointly charged with a criminal organization offence contrary to s 467.12 of the Code . On August 28, 2008, the Crown filed the Indictment in this matter. [ 3 ] The charges stemmed from 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.

During the course of this investigation, the police obtained five authorizations to intercept private communications under s 186 of the Code . These were designated WT 1709, WT 1712 and WT 1713. On March 6, 2008, the Crown gave notice under s 189(5) of the Code that it would seek to introduce 464 intercepted private communications into evidence at trial.

In a revised notice of intention, the Crown indicated it would not seek the admission of 13 of those intercepted private communications. [ 4 ] On July 14, 2008, all three accused were committed to stand trial and the case was scheduled for arraignment in the Court of Queen's Bench on August 29, 2008. [ 5 ] On September 15, 2008, Mr. Chadi appeared for Mr. Caines and Mr. Knapczyk and advised the Court he was applying to be removed as their counsel of record.

The application was granted. [ 6 ] In a letter from the Crown dated January 13, 2010, the Defence was notified about what has been referred to as the “put- away” issue. The letter from the Crown described it as: ... an issue that has arisen in the Ontario region in a few cases investigated by the RCMP regarding the approach taken in the implementation of

Part VI authorizations, in particular the requirement that certain calls be live-monitored... The issue in question is that some calls that were required by the terms of the authorization 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. Calls where this occurred will be referred to in this letter as "set aside calls." . . . To assist you in considering your position on this matter, I would point out that: 1. While we acknowledge that this "set aside" approach has been called into question in litigation in Ontario, we do not accept that it is contrary to the terms of the authorization. ... 2.

Even assuming for argument that this set aside approach was contrary to the relevant wiretap orders under which this investigation was carried out, and even making the worst possible assumption about the bona fides of the police, we do not believe that the Issue has any realistic potential to result in the exclusion of evidence ... [ 7 ] The three accused brought a delay motion. In it, they raised the conflict of interest issue relating to Mr. Chadi and the late disclosure by the Crown of the put-away issue.

In a decision dated February 14, 2011 ( R v Caines , 2011 ABQB 82 ), I concluded they had not established a breach of their s 11(

b) Charter rights [Delay Decision]. [ 8 ] Mr. Alcantara and Mr. Knapczyk applied to cross-examine Sergeant Mark Anderson, who swore the affidavits filed in support of the wiretap authorizations in this case. The Crown conceded they had laid a sufficient foundation to warrant granting leave to cross-examine the affiant regarding:

(1) his knowledge of use of the put-away feature during the implementation of the wiretap authorizations; (2) his awareness that there was a controversy among RCMP Special “I” [Electronic Surveillance Unit] personnel about whether use of the put-away feature contravened the live monitoring requirements of the wiretap authorizations; and (3) his failure to disclose use of the put-away feature to the authorizing judge. [ 9 ] On October 7, 2011, Mr. Caines was severed from the Indictment and the charges against him were resolved before another judge. [ 10 ] Mr. Alcantara and Mr.

Knapczyk now seek a stay of proceedings on the basis of abuse of process. III. Evidence [ 11 ] Counsel agreed and the Court directed that evidence entered on the delay motion would be applied to this abuse of process motion. A. Conflict of Interest [ 12 ] The evidence was reviewed and my findings in relation to Mr. Chadi’s actual and potential conflicts of interest were set out in the Delay Decision. [ 13 ] In particular, I made the following findings and comments in that decision: (a) ... Mr.

Chadi had a conflict of interest with respect to the representation of Caines and Knapczyk in the Koker A prosecution because he was a former counsel to Marche, a key Crown witness, a fact known to Mr. Chadi from the Information and confirmed when disclosure was received by him on or before June 1, 2007 [para 309]. (

b) There was a potential conflict between Mr. Chadi in terms of his representation of Caines and Knapczyk and his prior or concurrent representation of the other alleged unindicted co-conspirators (McDonald, Cardinal, Gregoire, Flight, John Caines and Hoskins) [para 312]. (

c) Counsel are correct that it is necessary for both the Defence and the Crown to carefully consider the complexities presented by multiple concurrent and successive representations in conspiracy cases, in the interests of avoiding delay and adjournments, but also to protect and advance the principled goals of conflict management as set out in MacDonald Estate : (1) the value of maintaining the high standards of the legal profession and the integrity of our system of justice; (2) the countervailing value that the litigant should not be deprived of his or her choice of counsel without good cause; and (3) the desirability of permitting reasonable flexibility within the legal profession.

The submissions of counsel that the common law rules against conflict of interest infuse the fair trial protections in s. 7 and 11(

b) of the Charter is compelling. A fair trial requires that counsel be without conflict [para 333]. (

d) In my view, it is necessary that these conflict issues be raised by both Crown and Defence, or by the court, so as to avoid delay, but also to enhance the administration of justice and the truth seeking purpose of trials. As counsel has argued, ultimately it is a question of trial fairness [para 360].

(

e) The Crown was in possession of all of the relevant facts involving Mr. Chadi's multiple concurrent and successive representational roles. Indeed, because the facts that underlay the charges against the unindicted co-conspirators also will form part of the Crown's case in the Koker prosecutions, I must conclude that the Crown had full knowledge of the various representations undertaken by Mr. Chadi when he became counsel of record in the various related matters (with the exception of Gregoire). These matters should have been raised by the Crown for determination by a judge long before the conflicts required Mr.

Chadi to withdraw [para 371]. B. The Put-Away Issue [ 14 ] During the course of this abuse motion, the Applicants brought an application for disclosure of certain communications over which the RCMP claimed solicitor-client privilege. In my decision refusing that application ( 2011 ABQB 660 ) [Privilege Decision], I reviewed the chronology in this matter and made certain findings which were relevant to the solicitor-client issue. Much of that chronology and certain of those findings are repeated and expanded on below.

Wording of wiretap authorizations requiring a form of live monitoring [ 15 ] Between 2003 and 2010, live monitoring clauses were used in wiretap authorizations in 64 investigations in Special “I” units in Calgary and Edmonton, the majority of which are shown in the chart below: Case Cross- Ref. # Date of Authorization or First Interception Crown

Section of Criminal Code Wording # Times Put- Away Feature Used 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 - s 184.2 with consent) Consenting person must be present or is a party to the call. N/A 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 - s 184.2 with consent) Consenting person must be present or communicating with the principle known person. N/A C22 Aug. 2008 Alberta

Part VI Required "live audio monitoring" 58 C24 Dec. 2008 Alberta

Part VI Certain communications to be "live monitored" but allowing "selective monitoring" 199 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." 78 E5 Jan. 2009 Alberta - EPS

Part VI - s 184.2 with consent Consenting person to be present and/or involved in the communication. 3 C31 Jan. 2009 Alberta

Part VI Certain communications required "live audio monitoring." N/A C30 Feb. 2009 Federal

Part VI Required "live audio monitoring" and "live monitoring." 3 C27 Apr. 2009 Federal

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

Part VI Required "live audio monitoring." 312 C29 Apr. 2009 Alberta

Part VI Required "live audio monitoring. ” 1,222 C32 July 2009 Federal

Part VI - s 184.2 with consent Certain communications to be "monitored on an ongoing basis." 37 C33 July 2009 Alberta

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

Part VI Required "live audio monitoring" and "live monitoring." 28 E4 Sept. 2009 Federal

Part VI Certain communications to be "live monitored." ?

C35 Nov. 2009 Federal

Part VI - s 184.2 with consent Certain communications to be "monitored on an ongoing basis." 36 E3 Nov. 2009 Alberta

Part VI Required "live audio monitoring." 11 E2 Feb. 2010 Alberta

Part VI - s 184.2 with consent Required "live audio monitoring." 7 E1 Mar. 2010 Alberta

Part VI - s 184.2 with consent Required "live audio monitoring." 4 2003 [ 16 ] Lorraine Morrison, an electronic operations support technologist with K Division’s Special “I” [Edmonton Special “I], confirmed that the put-away feature was available commencing in 2003 with the upgrade to version 3.2 of the CenCis II (Central Communication Intercept System) monitoring system. At present, Special “I” is using version 3.8.

During the Project Koker investigation, versions 3.2 to 3.4 of CenCis II were used. [ 17 ] Civilian monitors in Edmonton Special “I” are charged with the task of implementing wiretap authorizations for intercepted communications in a fashion that is authorized by court order. According to Kathryn Millar, who supervised the Edmonton Special “I” civilian monitors during Project Koker, putting away live monitor calls due to staffing shortages was a practice in Edmonton Special “I” prior to Project Koker.

Barbara Monikowski, an intelligence monitor with Edmonton Special “I” in those years, confirmed that monitors on every project requiring live monitoring from 2003 to June 2008 used the put-away feature as a regular tool to deal with staff shortages. She indicated the monitors frequently complained that there were not enough of them to monitor the lines properly.

She expressed those frustrations to her supervisors on numerous occasions. [ 18 ] Sergeant Anderson testified he was aware in 2003 from his work as an investigative monitor on a wiretap project [E20] that the put-away feature was being used by Edmonton Special “I.” [ 19 ] In the Delay Decision at para 421, I found that from 2003 through 2008, the put-away function was used by Edmonton Special “I” to park calls and record them, even though a particular authorization might call for live monitoring.

December 2004 - January 2005 [ 20 ] In her redacted March 30, 2010 can-say statement, Diana Blair, who was Supervisor of the Monitoring and Transcribing Unit of Edmonton Special “I” in 2005, before Project Koker, stated that prior to January 5, 2005, she had a meeting with Ron Reimer of the Edmonton office of the PPSC [Edmonton PPSC] 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 had 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...[redacted for solicitor-client privilege]. [ 21 ] She was also asked, if she was aware the use of the put-away feature on live monitored calls was controversial prior to or during Project Koker, what the basis was for its continued use.

She answered: “As a result of the meeting with Ron REIMER I... [redacted for solicitor-client privilege].”

[ 22 ] On June 7, 2010, the Crown disclosed to the Defence information from Ms. Monikowski’s personal and orientation binders, including a January 28, 2005 e-mail to Ms. Blair from Cindy Hering, a civilian intelligence monitor with Edmonton Special “I,” who was project co-ordinator on the wiretap portion of Project Koker. 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 memo 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). [ 23 ] In a letter dated 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.

It disclosed a statement given by her on May 14, 2010, in which she stated: 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 regard 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 the 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 the meetings with senior DOJ representatives, namely Ron REIMER, NCO i/c Special “I” and Special “I” technicians... [ 24 ] On April 1, 2010, the Crown advised the Defence in this case: [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. [ 25 ] In the hearing before me, the Crown submitted that this advice was in error in suggesting that Mr. Reimer and Ms. Blair had 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, unless the Crown meant they were not aware until then that the feature had been used in Project Koker. [ 26 ] According to Sergeant Anderson, the pre-wire portion of the Koker A investigation was carried out from January 5, 2005 to August 23, 2005. [ 27 ] Ms. Blair and Sergeant Bryce J. Florence, Manager of Edmonton Special “I,” co-authored a memorandum, dated January 5, 2005, addressed to Edmonton Special “I” Monitoring and Transcribing Unit staff.

The subject was monitoring procedures and the purpose of the memo was to clarify Special “I” policy regarding use of the put-away feature for monitoring staff. They instructed: 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 periodically." [ 28 ] 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...[redacted for solicitor-client privilege].

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... [ 29 ] During cross-examination by counsel for Mr. Alcantara on the delay motion, Ms. Blair gave the following evidence about what prompted her 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 a 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 advice or 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 that something had come up with respect to the new equipment. I take it you’re referring to the CenCis equipment? A. Well, we had switched intercept machines, brands, and so there was just different 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. A. ... 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. [ 30 ] According to Ms. Hering, use of the put-away feature became a topic of discussion in Edmonton Special “I” after the January 5, 2005 memo.

She said the memo offered guidance on use of this feature on lines requiring live monitoring. Monitors were instructed that if time permitted during the course of their interception duties, they were not to put away calls. It was suggested that if a monitor put

away a call due to volume, he or she should periodically check to ensure the target was still one of the speakers so the interception would fall within the boundaries of the authorization. Calls that had been put away would be in the queue waiting for a monitor to access them. The call would continue to be recorded by the CenCis equipment. [ 31 ] Ms. Hering testified that sufficient staffing for the monitor room was a constant problem and that she brought the issue to the attention of Ms. Millar and Staff Sergeant Brian Greig on many occasions over the course of her career.

She said that during Project Koker, they were strained in terms of the number of staff and they had to use the put-away feature in order to cope with all of the calls on live monitoring lines. It was a standard practice to record calls and then go back and listen to the recording. [ 32 ] Ms. Hering’s evidence was that, prior to June 2008, live monitoring to her meant identifying if the target was a participant in the call.

It did not mean listening to all of the call as it was being recorded. [ 33 ] In her February 24, 2010 can-say statement, Georgia Soutar (then Tsoukalas) said she became aware on January 19, 2005 that putting away target calls had been called into question as contrary to the authorization. She indicated that it was on that date that Ms. Blair told her that in a conversation she had had with Ron Reimer he told her “...[redacted for solicitor-client privilege].” [ 34 ] At a meeting on January 28, 2005 attended by Ms. Hering, Ms.

Blair indicated that use of the put-away feature was preferred, next to listening to the live call, and how the monitors were to use it. Ms. Blair apparently indicated that she understood it was not physically possible to listen live to all calls due to the volume. [ 35 ] In her redacted can-say statement of February 25, 2010, Ms. Hering 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 ...[redacted for solicitor-client privilege] 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.] August 2005 - November 2006 [ 36 ] During the course of the investigation, which ran to November 2006, the RCMP obtained five authorizations to intercept private communications under s 186 of the Code .

Sergeant Mark Anderson of the RCMP (then a corporal), the lead investigator in Project Koker, swore the affidavits in support of all five of the wiretap authorizations, as follows: Date of Affidavit /Authorization Authorization Number Granted by Date When Authorizations in Place Aug. 22, 2005/ Aug.23, 2005 WT1709 Slatter J Aug. 23, 2005 - Oct. 21 2005 Oct. 13, 2005/ Oct. 17, 2005 WT 1712 (two concurrent authorizations) Slatter J Oct. 18, 2005 - Dec. 16, 2005

Dec. 13, 2005/ Dec. 14, 2005 WT 1713 (two concurrent authorizations) Slatter J Dec. 16, 2005 - Feb. 13, 2006 [ 37 ] All of the authorizations contained clauses similar to clause 6C below from WT 1709: In respect of the Other Places in paragraph 4E, and over the devices in paragraph 5B, the interception of communications shall be accompanied by live visual surveillance, or live audio monitoring . The interception of a communication shall discontinue once it has been determined that the person in paragraph 3A is not a party to the communication.

However, the interception may be resumed at reasonable intervals to determine whether the person in paragraph 3A has become a party to the communication. If it is determined that such a person is a party to the communication, then the interception may continue. [ 38 ] Sergeant Anderson said that he prepared a proposed authorization for WT 1709 in consort with Robert Macdonald of Edmonton PPSC, who made the application before Slatter J (Mr. Reimer was the PPSC agent for WT 1712; Mr. MacDonald the agent for WT1713).

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.” [ 39 ] He was asked if the live monitoring references in the proposed authorization were based on a precedent and responded that they were based on a national precedent.

He knew there was case law where courts had said live monitoring was required for certain kinds of calls but did not believe that the term was defined until the fall of 2009 in the Ansari decision [ R v Ansari , 2010 ONSC 1316 , 224 CRR (2d) 288, also referred to as R v Ahmed ]. [ 40 ] Private communications were intercepted pursuant to the wiretap authorizations from August 23, 2005 to February 13, 2006. [ 41 ] The Crown in this case provided a notice pursuant to s 189(5) of the Criminal Code prior to the preliminary hearing.

The disclosure provided to the Defence included narrative logs of intercepted private communications containing 51,827 sessions. It subsequently provided a replacement or second notice which did not include six of the private communications listed in the first notice. The private communications referred to in the replacement notice appear under 451 tabs, some of which contain more than one private communication. There are private communications listed under 145 tabs in the replacement notice that occurred on telephone lines requiring live audio monitoring. Mr.

Knapczyk is alleged to have been a party to three of those private communications and Mr. Alcantara is alleged to have been a party to one of them. [ 42 ] Private communications under 122 of those 145 tabs were subject to live monitoring (the remainder were text messages), including the four allegedly involving Mr. Knapczyk or Mr. Alcantara. The put-away feature was used on private communications under 77 of the 122 tabs, without use of the minimize function, which ends the recording (none of these were communications to which either Applicant is alleged to have been a party).

On private communications under five of those 77 tabs, the put-away feature was used after the parties had ended their conversations but before the calls had been terminated. In six out of the other 72 , the monitor returned to the call once or twice after the put-away feature was used but before the private communication had ended. The calls in terms of the remaining 66 tabs were put away during the conversation and were never returned to by the monitor.

Crown counsel agrees that the calls under those 66 tabs were in breach of the live monitoring condition of the wiretap authorizations even by its own definition of the term “live monitoring.” [ 43 ] Sergeant Anderson acknowledged there were times when there were not enough civilian monitors to monitor all of the calls coming in on Project Koker (and other projects) as they were made and that putting away calls was a time saving measure. He said he was aware calls were being put away and in some cases a civilian monitor might not listen to a given call at all.

He testified that as a member of the Edmonton Drug Section, he simply advised Special “I” how many lines were involved in a wiretap authorization but did not direct what operational and manpower support was required. However, he recalled that on one occasion he did ask that shifts for the

civilian monitors be extended until 2-3 a.m. in an attempt to intercept calls involving one of the Koker B targets. [ 44 ] 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 [ 45 ] In an undated can-say statement, Staff Sergeant Greig, who was a Program Manager for Technical Operations at Edmonton RCMP in 2005 and was appointed acting Non-Commissioned Officer [NCO] in charge of Edmonton Special “I” in mid-2005, stated that he did not know 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. November and December 2006 [ 46 ] Mr. Alcantara, Mr. Knapczyk and Mr. Caines were arrested in late 2006. [ 47 ] Disclosure was provided by the Crown commencing December 4, 2006. As noted in the Delay Decision at para 9: The disclosure received by the Defence consisted of over 8,317 documents totalling in excess of 400,000 pages. This material was provided to the Defence predominately in electronic form by way of an external hard drive and multiple DVDs.

The narrative logs of the intercepted private communications contain 51,827 sessions totalling 59,530 pages. [ 48 ] The hard drive with the bulk of disclosure was provided on June 4, 2007. April 2008 [ 49 ] Use of the put-away feature became an issue during a prosecution arising out of an RCMP investigation in Milton, Ontario called Project Outage. On February 12, 2004, during the course of the investigation, the RCMP obtained a wiretap authorization permitting the interception of private communications.

The authorization and continuation required that communications over certain telephone devices be live monitored for at least the first 7 days of interception. [ 50 ] The matter was prosecuted by the PPSC. The accused were alleged to be involved in a conspiracy to traffic in marijuana. Court proceedings began in the Ontario Superior Court of Justice in Toronto on April 7, 2008 ( R v Dang ). The defence filed an application alleging the RCMP had failed to strictly comply with the live monitoring requirements in the wiretap authorizations.

During the voir dire , evidence was presented that the RCMP had used the put-away feature to continue to record calls even when no one was listening to them and, in some instances, to put away calls before the monitor ascertained named targets were speaking. [ 51 ] Sergeant Louise Rodrigue of the RCMP’s Processing and Analysis Unit in Ottawa became aware of the non-compliance issue that arose in Project Outage. One of the mandates of the Processing and Analysis Unit was to develop national wire room policies and

standard operating procedures. Each province also had its own policies and procedures to reflect the case law in that province, but these could be overruled by national policy. [ 52 ] Sergeant Rodrigue testified that about April 8, 2008, she had a discussion with Constable Erik Martin of New Market, Ontario, who had been in charge of the Project Outage investigation, regarding the evidence given by Kathy Walker, one of the intercept monitors, during the proceedings. She was advised there was concern the monitor had put-away some calls without first ensuring the named target was on the line.

As a result of that discussion, Sergeant Rodrigue attempted to contact the intercept monitor supervisor in Milton, but learned the supervisor was on long-term sick leave. [ 53 ] On April 30, 2008, she spoke with Sergeant Gabriel Divito, the Administrative NCO with the RCMP’s Special “I” Unit in Newmarket, Ontario, who acted as supervisor of all RCMP wire rooms in Ontario at the time. [ 54 ] Sergeant Rodrigue had an intercept monitor program analyst, Lynne Fedor, explain how the put-away feature operated. She then asked Ms.

Fedor to call the divisions, talk to the intercept monitor supervisors and find out if they were using the put-away feature. Sergeant Rodrigue believed Ms. Fedor contacted Ontario, British Columbia, Quebec and down east by telephone. Some of the divisions acknowledged using the put-away feature mainly on jail lines as well as in order to clear their live audio monitoring window that appears when there is a live call.

During the course of her inquiries, Sergeant Rodrigue learned there were differences of opinion within Special “I” as to whether or not use of the put-away function adhered to the live monitoring clause in wiretap authorizations. [ 55 ] Since more questions were being asked about the put-away issue, it was decided the subject should be broached at the PowPM conference, an annual meeting of RCMP and other intelligence professionals from across Canada on June 3 and 4, 2008. June 2008 [ 56 ] During the PowPM conference, a lecture on

Part VI authorizations was given by Sergeant Bernard Tremblay of the RCMP Electronic Surveillance Support Unit in Ottawa. Round table discussions took place on use of the put-away feature. Sergeant Rodrigue advised the Special “I” personnel in attendance to read their authorizations and ensure they could use the put-away feature and, if they were not sure, to talk with their affiant or Crown counsel. She said there may have been 15 intercept monitors at the conference. Sergeant Rodrigue also spoke briefly to the officers in charge and NCOs at the conference about the issue.

She testified that she learned at the PowPM conference that there were strong feelings that monitors would be in compliance with live monitor authorizations if they ensured the named target was on the line before putting a call away. [ 57 ] The agenda and minutes of the PowPM meeting entered through Sergeant Rodrigue during the delay application hearing indicate the following discussion took place: Suggestion ∙ There is a case where the judge has questioned why these calls were not continuously monitored. The audio ribbon shows when the call was attended and when it was put away by the colour of the ribbon.

Suggestion ∙ Ask JSI to take away this viewing capability ∙ Prosecutors are starting to explore the technical side of calls - look at the attendance of calls, history of calls. ∙ In one case where a lawyer was involved, when it came to court he wanted all the history of who listened to the audio, when it was locked, ie., all the information.

[ 58 ] Sergeant Ron Gosselin, Acting Program Manager in charge of Edmonton Special “I,” and Kathryn Millar, the Monitor Supervisor at the time, attended the PowPM conference in Saskatoon. He confirmed they were advised to stop using the put-away function on live monitored calls. Ms. Millar testified that live monitoring had been an issue for some period of time before the PowPM conference: there had been discussions about whether monitors were properly following authorizations.

She also confirmed that they were directed at the PowPM conference to stop using the put-away feature on live monitor calls. [ 59 ] Sergeant Gosselin testified that when he got back from Ottawa, the change in policy addressed at the conference was implemented immediately. His evidence was that: I would have taken the request from headquarters in Ottawa, disseminated that through Kathy Millar to cease and desist using the put away feature on live monitored lines, and have her disseminate that to all the intercept monitors. And I would have sent it as well to ... we have an office in Calgary.

I would (sic) disseminated it to the acting super...intelligence supervisor in Calgary as well and had them disseminate it to their intercept monitors. [ 60 ] Ms. Millar’s evidence was that her normal practice when she returned from PowPM meetings was to debrief the staff on information learned or practices that were to be adopted. She could not recall what she did after the 2008 conference. [ 61 ] Ms. Soutar, a civilian monitor with Edmonton Special “I,” testified that she recalled discussions after the 2008 PowPM conference concerning use of the put-away feature.

She confirmed that she received information from those who attended. She was told there was a question across Canada about Special “I” using the function and whether it should continue to be used. She said that after June 2008, she did not use the put-away function intentionally. As far as she could remember, between March 2008 and November 2009, Edmonton Special “I” did not monitor any lines requiring live monitoring. Later, she said that from the end of March 2008 to November 2009, there was very little, if any, work in Special “I” that might require use of that function.

She subsequently clarified that, post-June 2008 until now, she has not intentionally used the put-away function. [ 62 ] Sergeant Rodrigue’s evidence was that steps were taken to confirm how often the put-away feature was used and on how many projects in order to ascertain if this was a major problem or not. She did this by way of an e-mail dated June 19, 2008 to Sergeant Gosselin as well as other managers of Special “I” Units across Canada, in which she made the following three requests: 1.

Provide a list of all outstanding projects/investigations (and investigative units) affected by this (i.e. calls were "put-away") that are still outstanding (not dealt with in court). 2. Advised [sic] if any of your intercept monitors "put-away" calls without ensuring if one of the "named persons/targets" was involved in the intercepted communication. If so, which projects? 3. Advise if one of those projects (1-2) are before the court now or in the very near future.

Question No. 3 is most urgent - and your immediate attention is required . [Emphasis added.] [ 63 ] In response to this e-mail, Sergeant Devito had an audit conducted of all wiretap investigations in Ontario. As a result of the audit, a list was generated on June 19, 2008 of investigations then before the courts in which the put-away feature had been used. This list was forwarded on the same date to Sergeant Rodrigue and was disclosed to the Applicants in the present case on October 12, 2010.

Sergeant Devito commented in the e-mail that: Monitors have, as a general practice, “put calls away” after verifying that a named target was a party to the communication. In some instances, they have “put calls away” without verifying whether the target has been a party to the communication. This seems to be prevalent during investigations involving languages combined with the lack of translator monitors. As was the case in Project OUTAGE.

[ 64 ] Sergeant Rodrigue testified that on June 27, 2008 she asked Lynn Fedor to send an e-mail to NCOs and intercept monitor supervisors across Canada as well as management requesting that intercept monitor supervisors and project room coordinators review their judicial order and "...adhere precisely to the live monitoring clauses ordered... ." If there were any doubts about how to handle the live monitoring clauses, they should "...immediately contact their affiant or Crown assigned to the case." The e-mail also directed that the affiant or Crown be made aware if they were still using the put-away call functionality.

This e-mail was forwarded to Ms. Hering and other intelligence monitors in the Edmonton office. [ 65 ] Ms. Monikowski testified that she used the put-away feature until she was instructed by e-mail in June 2008 not to use it without first checking with the Crown or the affiant regarding its use. She said that after July 1, 2008, she did use the put-away feature in error fewer than 10 times. She explained that by “error,” she meant that she pushed the put-away icon by mistake. July 2008 [ 66 ] On July 3, 2008, Sergeant Rodrigue received a reply from Ms.

Millar through Sergeant Gosselin to her June 19 th e-mail: "We have put away calls on every file with live lines since we got VB [voice box] in 2003." It continued: "The following are the cases currently 'active' (i.e. in disclosure, awaiting court) that could be affected: ... E7 ..., Koker - Edmonton Drugs." [ 67 ] On July 3, 2008, Sergeant Rodrigue sent an e-mail to Sergeant Gosselin inquiring whether he had had a chance to talk about the issue with one of the Crown. She said in the e-mail she was asking the question to make sure the Department of Justice would be involved.

She testified she could not recall if she received a response from Sergeant Gosselin or whether she made a similar inquiry of other Special “I” managers. [ 68 ] I concluded at para 424 of the Delay Decision that: ... Edmonton Special I RCMP members knew about use of the put-away feature in Koker A at least by July 3, 2008. Allowing a reasonable time for the RCMP to consult with the Crown and for the Crown to respond, I find that this information should have been disclosed to the Defence by the end of August 2008. [ 69 ] In a memorandum dated July 23, 2008, Superintendant P.J.

Thorne, OIC Federal Operations Support Branch, stated: Additionally, an onus has been placed on supervisors to ensure that each IM is able to understand the “Live Monitoring” clauses of the authorization. Unfortunately, the “putting away calls ” or automatic recording of live calls to be reviewed later has become common place within the Special “I ” world due to the volume of calls received and the inability to live monitor 24 hours a day .

Then there is an additional problem to ensure that there is voice recognition associated with the principals of the investigation...[V2]...Special “I” has begun discussions with JSI (program developer) to ascertain if the “putting away” feature could be disabled. [Emphasis added.] [ 70 ] In response to a disclosure order, the Crown indicated that it was on July 27, 2008 that the Director of the PPSC or his or her delegate 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 wiretap authorizations.

November 2008 [ 71 ] On November 3, 2008, Sergeant Rodrigue sent an e-mail to Ms. Millar referencing the June 27th e-mail from Lynn Fedor and

indicating Special “I” was meeting on November 12, 2008 with JSI and a few other stakeholders, such as affiants, for a demonstration of the put-away feature. Sergeant Tremblay was not able to attend that meeting. Jamie Driscoll, who worked with Mr. Tremblay, was there, as were representatives of RCMP legal services and Lynn Fedor. Only people from headquarters in Ottawa were invited to attend. Mr. Driscoll had drafted a paragraph to be included in authorizations that would allow use of the put-away feature. He provided his suggested wording to Glenis Sullivan with H Division in Halifax.

Sergeant Rodrigue was informed on November 10, 2008 the paragraph had been used in an authorization. [ 72 ] On November 16, 2008, Sergeant Rodrigue sent an e-mail to Special “I” NCOs, officers in command and RCMP wire room supervisors requesting that intercept monitors review their specific judicial orders and adhere precisely to live monitoring clauses. She wrote: "[i]f you have any doubts on how to handle the 'live Monitoring' clauses related to each project, immediately contact your Affiant or the Crown assigned to the project.

Make sure they 'fully' understand how the 'put-away' functionality works." She testified that, at that time, she was waiting for a court resolution of the issue.

The e-mail was red flagged "high priority" as this was shortly after the JSI demonstration and after she had learned Halifax was using the specially drafted clause allowing use of the put-away function. [ 73 ] Sergeant Rodrigue sent another e-mail on the same day to a different list of recipients, including Sergeant Gosselin, directing that unless they were specifically authorized by the judge to continue recording a named person on a live monitoring line when they were not listening to the call, the put-away function was not to be used. [ 74 ] In November 2008, Ms.

Morrison in technical support became aware of issues arising out of use of the put-away feature discussed at the PowPM. November 2009 [ 75 ] On November 7, 2009, Cindy Hering e-mailed Barb Monikowski, saying: In discussion with Ron [Gosselin] on Friday regarding our new file, it was agreed that we should contact the Crown and let them know what our live monitoring practice is. Once they deem it as acceptable, you can just put a brief note on the file outlining what was agreed to. In lieu of something being written in the order (which would be our first preference), this is what is being recommended by Ottawa.

The Chief Crown Prosecutor for this file is Michelle DOYLE @... I tried contacting her a couple time on Friday afternoon but would suggest you try early Monday morning (before court) and you’ll likely have more luck. Live Monitoring: When a target is not a party in the communication: interception and recording shall be discontinued. Interception may be resumed at regular intervals to ensure the target has not become a party to the communication. When it is determined that a target is a party to the communication: interception and recording will proceed until the call ends.

Live audio monitoring will occur at reasonable intervals to ensure the target remains a party to the communication. It still goes without saying that it’s not feasible for monitoring staff to handle more than a couple live lines at a time. I double-checked with Ken KUZYK and we are not able to live monitor on more than one terminal as it creates issues within the system. Apparently this is something JSI is working on... I asked him to activate the “put away” button but given Ken is now AOL for two weeks, you may want to follow up with Clint or Lorraine. [ 76 ] On November 10, 2009, Ms.

Soutar sent an e-mail to Sergeant Gosselin, Janna Hendry, Ms. Hering and Ms. Monikowski on the subject of the put-away feature and live monitoring. In it, she stated: ... In lieu of not having heard from the Crown earlier on in the afternoon, I spoke with Ron [Gosselin], and Ron advised that we should go ahead with utilizing the put-away function if we so need it. Ron advised that when we finally do talk to the Crown, to advise them

that we have proceeded with the put-away function unless they tell us otherwise. (Ron, please correct me if I misinterpreted anything here) I spoke with Clint this afternoon and he advised that he would be re-enabling our put-away button . After some thought, I remembered reading some sections were utilizing the “dual monitoring” function of JSI (see attached e-mail). I also know that this was discussed at the VB Forum I went to in 2008.

I referenced our online help guide to see how the function works, and it is really quite simple (it’s like having two lines up on two separate terminals, except that it’s two live lines on one terminal, and if both calls go off at the same time, one will play in one speaker and one will play in the other speaker). Seeing that we only have two live lines, I think this is a doable process, but that’s just my opinion. I had Bobbi & Amy read over the JSI instructions on dual monitoring, and both feel that they would be able to do it.

That being said, I also advised them that should the dual monitoring not work or if they for some reason do not feel comfortable listening to two calls on one terminal, they can use the put-away function, as per Ron’s instructions.

I think that on this file, the advantage of using dual monitoring over the put-away function is that we lessen the risk of missing a person’s name being said (i.e., with the put-away function you can only listen to one call at a time, so if both lines begin around the same time, you may miss the beginning of the call that is waiting in the queue or is “put-away,” and that is the part where the person says their name). The attached e-mail is from one year ago, so unless things have changed, it appears that the dual monitoring function is something Ottawa supports.

This is just a suggestion I’m throwing out there... [Emphasis added.] [ 77 ] Ms. Soutar testified that she could not recall having had a conversation with Sergeant Gosselin on November 10, 2009, but she did identify the e-mail she sent on that date to Sergeant Gosselin and civilian members concerning the put-away issue. She said she was replying to the November 7, 2009 e-mail from Ms. Hering, referencing a conversation she had had with Sergeant Gosselin. Ms. Soutar said she tried unsuccessfully to get in touch with Crown Michelle Doyle. [ 78 ] Ms. Soutar was asked about the dual monitoring function.

She did not recall ever having used it. She identified Clint, referred to in the e-mail, as a Special “I” technician. [ 79 ] Ms. Soutar was asked whether there was an ability to record a conversation but not hear it over the monitor’s earphones or speaker. She replied there was no such ability at the time without using the put-away feature, which had been disabled prior to November 7, 2009 as far as she recalled. [ 80 ] The new file referred to in the November 7th e-mail required live monitoring. Ms. Soutar said that even after November 2009, she did not use the put-away function intentionally.

However, she might have clicked the put-away icon by mistake. [ 81 ] Ms. Monikowski could not recall having any communication with Edmonton PPSC regarding use of the put-away feature between November 6, 2009 and December 31 of that year, although she conceded she might be in error since she did not make notes of every communication she had with the Crown.

December 2009 [ 82 ] Crown counsel in the present prosecution advised the Court and Defence counsel on January 13, 2010 that “shortly after December 4, 2009” his office became aware that an issue relating to use of the put-away function on an authorization requiring live monitoring had arisen in an Ontario case (see para 6 above). [ 83 ] In the Delay Decision at para 425, I indicated there was no evidence before me at the time that the Edmonton PPSC knew of the put-away issue before December 2009, when Crown counsel in the prosecution of Koker A were notified of it. [ 84 ] On December 10, 2009, the trial commenced against Mr.

Alcantara and Mr. Knapczyk.

[ 85 ] On June 14, 2010, during a disclosure application, the Defence sought the specific date the Edmonton PPSC obtained institutional knowledge of the put-away issue. The Crown argued the information was irrelevant in making full answer and defence. Given that Mr. Alcantara had pleaded guilty to one count on December 10, 2009, I ruled that whether the Edmonton office of the PPSC knew about the issue before or after his guilty plea was relevant to his application to vacate his plea.

I directed the Crown to 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." [ 86 ] In a letter dated July 16, 2010, Crown counsel wrote to Defence counsel stating: I am responding to the disclosure request with respect to the issue as to when the Edmonton Office of the Public Prosecution Service of Canada (PPSC) gained certain knowledge of the "put away" issue.

The issue was argued in Court regarding the relevance of the information. An order was made requiring the Crown to provide disclosure of the date the Edmonton Office of the PPSC came into possession of certain knowledge pertaining to the "put away" issue. Defence counsel were to file a formal order specifying the information the Crown was required to disclose. Such an order has not yet been filed and I do not have specific enough notes to recall exactly what information the Crown was to disclose.

It is my recollection, however, the information the Crown was ordered to disclose was "when the Edmonton Office of the PPSC became aware that the Royal Canadian Mounted Police Special “I” unit "set aside" calls (i.e. used the "put away" function to continue recording private communications that required live monitoring after a target was identified as a speaker in a private communication even though the private communication was not continuously monitored after the target speaker was identified) in the course of the Project Koker investigation." Unfortunately, there is no record of the date.

However, I am advised that after Ron Reimer learned of the "put away" issue in Ontario he inquired with the Royal Canadian Mounted Police Special “I” unit in Edmonton to determine whether calls were "set aside" in Alberta. It was through the course of that inquiry that he learned calls were "set aside" on Project Koker. This information came from Cindy Hering in a telephone conversation. There is no record of the date or content of the call.

However, I am advised by Cindy Hering that she was away from the office in the beginning of December 2009 and that her first day back at work, after December 4, 2009, was December 16, 2009. Therefore, through deduction, the earliest the Edmonton Office of the PPSC could have learned that calls on Project Koker were "set aside" was on December 16, 2009 ." [Emphasis added.] January 2010 [ 87 ] Sergeant Rodrigue testified that on January 5, 2010, Assistant Commissioner Doug Lang sent an order or direction not to use the put-away function. She asked Ms.

Fedor to forward a copy of the order to all intercept monitor supervisors and possibly NCOs. [ 88 ] Ms. Soutar testified that the put-away feature is not available on the screen anymore. The icon has been removed. When there is a live monitoring requirement for several lines at one time, she will only monitor one live line at a time. If a principal known person is on the line, she listens to the call from beginning to end. If not, she minimizes it.

In the interim, if more than one live call comes in and there are not enough monitors to listen to each of them, the calls remain in an auto-minimized state until someone is available to listen to the call. They do not dual monitor. She said the current practice has been in place for one to one and one-half years. A live monitoring transcribing procedures manual dated January 6, 2010 describes the current practice. Ms. Soutar said that was about when the current practice came in. She did not recall whether the practice in 2009 was as described by Ms.

Hering in her November 7, 2009 e-mail. [ 89 ] As noted above, it was on January 13, 2010 that the Crown first informed Defence counsel about the put-away issue. March 2010 [ 90 ] On March 5, 2010, Crown counsel advised counsel for the Applicants 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.) [ 91 ] At some point in late 2010, in the months leading up to Sergeant Gosselin's retirement, Edmonton Special “I” started reviewing all past cases to see if the put-away feature had been used on calls requiring live monitoring.

Present [ 92 ] Current RCMP policy is that the put-away feature will not be used unless the authorization permits the recording of live conversation without listening. C.

Prejudice to the Applicants [ 93 ] In the Delay Decision at para 441, I stated: I infer from the fact that Caines sought to vacate his guilty plea and rejoin this trial, Alcantara applied to vacate his guilty plea, and the Applicants all renewed their various Charter notices once disclosure was made of use of the put-away feature in Koker A, that had such disclosure been made in a timely fashion, Caines would not have entered the guilty plea on two counts in the Indictment, Alcantara and Knapczyk would not have abandoned their Charter applications, Alcantara would not have re-elected to be tried by judge alone and he would not have entered a guilty plea to Count 1 in the Indictment. (Indeed, I ruled previously in the decision permitting Alcantara to withdraw his guilty plea that these steps would not have been taken in the first place.) Contrary to the Crown's view that these were "trial" activities and that the time from November 11, 2009 to December 10, 2009 should be counted as a period of inherent delay, I am of the view that this period of delay is attributable to the Crown [para 441]. [Emphasis added.] [ 94 ] I also found at paras 518 and 530: Alcantara has suffered prejudice [from the delay].

His security interests have been affected by the delay in that he is facing on-going stress or damage to reputation occasioned by lengthy exposure to unresolved criminal accusations. There has been a prejudicial impact on Alcantara's liberty interests as well. The calculation is complicated because he received credit in his sentence on Koker B for time that he was on remand for both matters. His fair trial interests also have been affected by the delay occasioned by late disclosure in that the entire trajectory of the trial was altered, with the necessary reassessment and activation of pre-trial motions. . . .

Knapczyk has suffered prejudice [from the delay]. His security interests have been affected by the delay in that he is experiencing on-going stress or damage to reputation occasioned by lengthy exposure to unresolved criminal accusations in relation to serious charges. The impact on Knapczyk's liberty interests has been minimal because he was granted early judicial interim release and has been able to maintain employment and mobility within the province.

His fair trial interests have been affected by the delay occasioned by late disclosure in that the entire trajectory of the trial was altered, with the necessary reassessment and activation of pre-trial motions. IV. Arguments of the Parties

A. Applicants ’ Argument 1. Conduct of the Crown [ 95 ] In the Delay Decision at paras 275-276, I summarized the s 7 argument advanced by Mr. Rice on behalf of Mr. Alcantara regarding Mr. Chadi’s conflicts of interest as follows: As I understand this aspect of Alcantara’s argument, he is saying that the common law rules concerning conflict of interest infuse the fair trial interests protected by ss. 11(

b) and 7 of the Charter . Alcantara argues that there are two aspects to the evidence on the issue of the conflicts involving Mr. Chadi: (1) the conflicts that arise as a result of his representation of Berube and Marche are so apparent they leap off the page; and (2) the overall history of the various interrelated proceedings demonstrates a context of systemic conflicts.

He contends that the Crown ought to have brought both of these conflicts to the attention of the Court and its failure to do so ought to be given weight in the overall assessment of reasonableness of the delay in the balancing process. [ 96 ] The Applicants submit the conflicts of interest existed from the time when the Information in this case was sworn. [ 97 ] They argue that the conduct of the Crown in failing to bring Mr.

Chadi’s conflicts of interest to the attention of the Court was egregious in light of the duration, number and nature of the conflicts, which they suggest demonstrate a context of systemic conflict of interest. [ 98 ] The Applicants contend that the conduct of the Crown and the police in resisting disclosure of the breach of live monitoring conditions in wiretap authorizations in other prosecutions in Alberta and the ongoing failure of the Crown to disclose the breach to defence lawyers is contemptuous of the administration of justice and the rights of accused. [ 99 ] The Applicants suggest that the evidence shows the Edmonton PPSC was aware from late 2004/early 2005 that there was a controversy as to whether the practice of putting away calls while recording them was compliant with the live monitoring conditions of authorizations.

The Applicants contend that even though their argument to set aside Crown privilege was unsuccessful, every redacted portion of an e-mail chain disclosed by the Crown is evidence that one senior member of Edmonton PPSC knew of concerns relating to the propriety and, likely, the legality of the impugned practice. [ 100 ] The Applicants submit that the only reasonable inference from Crown counsel’s March 5, 2010 letter and the evidence of Sergeant Gosselin that the Edmonton Special “I” monitors stopped using the put-away feature by July 3, 2008 is that the RCMP received legal advice before that date and before the June 3 and 4, 2008 PowPM conference.

They suggest the legal advice was that using the put- away feature contravened the live monitoring requirements of the wiretap authorizations.

They assert that if that is the case, the PPSC at the federal level had institutional knowledge of the use of the put-away feature before July 27, 2008 and the Edmonton office of the PPSC had actual knowledge that calls were put away on Project Koker before December 16, 2009. [ 101 ] The Applicants argue that I should revisit my Delay Decision if it is established that Edmonton PPSC was aware, prior to December 16, 2009, that calls were being put away. [ 102 ] They maintain that among the factors to be attributed to Crown responsibility for delay is delay in disclosure.

In the Delay Decision, I attributed certain periods of delay to inherent time requirements, reasonable institutional delay and delay on the part of Mr. Alcantara or all three accused, during stages 1 to 3 of the prosecution. [ 103 ] The Applicants say that if the Crown was in breach of its disclosure obligation prior to July 2008, and should have disclosed the put-away process and controversy about the put-away issue at the outset of this case, each of the stages must be revisited and reassessed in light of the Crown’s delay in disclosure.

2. Conduct of the RCMP [104] The Applicants maintain they have standing to assert the privacy interests of third parties in the context of the residual categoryof abuse of process under s 7 of the Charter.

In support of this position, they cite R v Thompson, (SCC), [1990] 2 SCR1111 at p 272 and Ansari at para 24, both of which concerned breaches of s 8 of the Charter. [105] They refer to the evolution of court authorizations permitting wiretap interceptions and the concomitant recognition by thecourts of the need for minimization conditions to ensure the protection of privacy, as seen in R v Finlay (1985), (ONCA), 52 OR (2d) 632 (CA), leave to appeal to SCC dismissed (1986), 54 OR (2d) 509; Thompson; R v Garofoli, (SCC),[1990] 2 SCR 1421; R v Araujo, 2000 SCC 65 , [2000] 2 SCR 992; Ansari; and R v Mohamud, 2010 ONSC 6264, 263 CCC(3d) 350. [106] The Applicants say a pattern of conduct emerged after 2003 whereby affiants in wiretap applications obtained authorizationswhich contained live monitoring provisions even though Special “I” personnel had no intention of complying with those provisions. [107] The Applicants urge on the Court the

interpretation of “live monitoring” derived from Ansari at paras 30-32. [108] They contend that Special “I” monitors in Edmonton and Calgary used the put-away feature in 64 wiretap investigations despiteclauses in the authorizations which required live monitoring. [109] They say failure by the police to comply with the live monitoring requirements of wiretap authorizations is surprising given thedecision of the Supreme Court of Canada in Thompson. [110] The Applicants take the position that the possibility the RCMP acted contrary to legal advice would affect the community’sview of the illegality.

They note that Crown counsel in this case stated in a letter dated March 5, 2010 that for purposes of the Grantanalysis under s 24(2) of the Charter, the Crown will not assert that the RCMP followed its legal advice. [111] The Applicants submit that use of the put-away feature by the RCMP was a breach of s 8 of the Charter and was not confined tothis prosecution but rather was systemic in nature and continued unabated until exposed in the spring of 2008 in the Ontario case of R vDang, involving Project Outage (and later in R v Peluso, 2010 ONSC 1952). [112] They suggest there was an attempt by the police at the national level to cover up this breach, amounting to an abuse of process. [113] The Applicants referred to the evidence of Inspector Konowalchuk and an e-mail he sent in June 2010 as demonstrative of theattitude of the RCMP to the importance of a court order.

Inspector Konowalchuk was the officer in charge of covert operations forAlberta in 2010 and ultimately was responsible for complying with the disclosure orders made in this case. He was party to an e-mailchain between Sergeant McIntyre and Ms. Morrison on June 16, 2010 concerning a work plan to conform with the disclosure orders. Thecorrespondents discussed the timelines for disclosure, staffing and implications for other investigations. Inspector Konowalchuk noted: We must also remember that every single case is different and we must look at the merits of each case separately.

This may mean therewill be a few more bumps in the road, but does not mean we did anything wrong in a great number of our investigations. Please don’tforget, although the Court in Ont. ruled it was an inappropriate procedure, the evidence still went in. [114] Inspector Konowalchuk testified that he did not have any discussions with anyone about concealing the RCMP’s use of the put-away feature.

[115] The Applicants also refer to the evidence of Ms. Morrison concerning the session history reports (SHRs). In those reports, thewords “stop live monitoring” refer either to discontinuing the interception or putting it away. They argue that the words used in the SHRsmust be interpreted literally - the monitors indeed stopped the live monitoring. They note the evidence demonstrating that a tensionexisted between workload demands and the ability of monitors to comply with the authorizations.

They suggest that a simple solutionwhich could have been applied was that if there were six monitors and 12 active lines with a live monitoring condition, the monitorsshould have minimized six of the lines. The Applicants contend that the conclusion which must be drawn is that the RCMP favoured theoutcome of the investigations over observance of the authorizations to the detriment of the Applicants’ and third parties’ constitutionalrights. [116] In

summary, the Applicants submit that there are three ways in which the put-away practice is important to their claim of abuseof process: (

a) Absence of full and frank disclosure - The existence of the practice and the controversy surrounding use of the put-away featurewas not disclosed to the authorizing judge, in breach of the requirement for full and frank disclosure. The authorizing judge is notexpected to read the fine print and should be able to rely on the professionalism of the “specially designated agent” and the affiant policeofficer. (

b) Late disclosure - If it can be inferred that a senior Crown agent had knowledge of the actual put-away methodology andcontroversy as early as 2005, this should have been disclosed by 2007. There was prejudice to the Applicants occasioned by this delaygiven that the preliminary hearing was held in early 2008, when the affiant would have been examined. This is irreversible prejudice totheir right to make full answer and defence. (

c) Impact on the Delay Decision - If such an inference can be drawn, the Court should not have relied on the Crown’s representationduring the argument of the delay motion that Edmonton PPSC acquired knowledge of the put-away issue in the Koker case as ofDecember 2009 (see Delay Decision at para 425).

If Edmonton PPSC knew about the put-away issue as early as 2005, there wasprejudice to the Applicants. [117] The Applicants argue that the prejudice to their liberty, security and fair trial interests under s 7 of the Charter continues. [118] The Applicants take the position that to preserve the integrity of the justice system, the Court must provide an effective remedyfor police and Crown malfeasance. To do nothing would be to condone it.

They refer to Lamer J’s comment in R v Mack, (SCC), [1988] 2 SCR 903 at 940 that disrepute may arise from “...judicial condonation of unacceptable conduct by the investigatoryand prosecutorial agencies.” [119] The Applicants submit the Court does not have to engage in a balancing of interests in these circumstances as it is clear theabuse is sufficient to warrant a stay. [120] They argue that remedies less serious than a stay would be inappropriate as they would not ensure police conduct isCharter-compliant in the future.

However, if the Court is not satisfied that a stay is appropriate, they assert the wiretap evidence shouldbe excluded under s 24(2) of the Charter. [121] They note that there is no assurance that all information regarding use of the put-away feature relevant to the ss 8 and 24(2)analysis has been disclosed. B.

Crown Arguments [122] The Crown takes a more expansive view than do the Applicants of the term “live monitoring.” It notes that only R v Willis(1997), (AB CJ), 204 AR 161 (Prov Ct); Ansari and Peluso dealt directly with how much of a call must be listenedto in the moment pursuant to a “live monitoring” requirement in the authorization. It points out that the live monitoring condition

imposed in Willis was substantially the same as the live monitoring clause in the authorizations in the present case. It says that HamiltonProv Ct J’s

interpretation of the clause as meaning that live-monitoring must take place “until such time as the monitor believes onreasonable grounds that a known party is party to the communication” and that “[o]nce it was established on reasonable belief he was theknown person on the line, the live monitoring could be discontinued,” is consistent with and supports the Crown’s

interpretation of thatterm in this case. [123] The Crown submits that the abuse of process doctrine is a safeguard designed to ensure that the repression of crime throughconviction of the guilty is done in a way that respects the fundamental values of society, citing R v Conway (SCC),[1989] 1 SCR 1659 at para 8 and R v Scott, (SCC), [1990] 3 SCR 979 at para 27.

Relying on R v Power, (SCC), [1994] 1 SCR 601 at para 12, the Crown argues that courts should intervene to prevent an abuse of process which couldbring the administration of justice into disrepute only “[w]here there is conspicuous evidence of improper motives or of bad faith or of anact so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed.” TheCrown’s fundamental position is that on any construction of the facts, the legal test to find abuse of process has not been met here. [124] The Crown points out that the onus is on the Applicants to prove abuse of process on a balance of probabilities and that ajudicial stay is warranted only in the clearest of cases (R v O'Connor, (SCC), [1995] 4 SCR 411 at para 68; R vMatthiessen, 1999 ABCA 31 at para 10, 228 AR 391.

The Crown relies on the principle that a judicial stay is the “ultimate remedy” andonly to be used in limited circumstances (Minister of Citizenship and Immigration v Tobiass, (SCC), [1997] 3 SCR391 at para 86). [125] The Crown ta

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