R v Alcantara, 2011 ABQB 719

Court of Queen ’ s Bench of Alberta Citation: R v Alcantara, 2011 ABQB 719 Date: 20111121 Docket: 070060157Q1 Registry: Edmonton Between: Her Majesty the Queen - and - John Reginald Alcantara and Alan Peter Knapczyk Accused _______________________________________________________ Reasons for Judgment - Garofoli Application of the Honourable Madam Justice S.J. Greckol _______________________________________________________ I.

Introduction [ 1 ] On August 10, 2011, Alan Peter Knapczyk, filed a Charter notice seeking the exclusion from evidence of all intercepted private communications identified in a notice of intention dated March 6, 2008, provided by the Crown under s 189(5) of the Criminal Code , and any subsequent notices of intention. [ 2 ] He challenges the admissibility of the intercepted private communications on the basis of a subfacial challenge to the affidavits of Sergeant Mark Anderson, sworn on August 22, 2005, October 13, 2005, and December 13, 2005 in support of wiretap authorizations designated WT1709, 1712, and 1713 respectively, granted by Slatter J (as he then was) under s 186 of the Code . [ 3 ] Knapczyk filed an application on August 10, 2011 seeking leave to cross-examine Sergeant Mark Anderson. [ 4 ] The Crown conceded that a sufficient foundation had been laid to warrant granting leave to cross-examine Sergeant Anderson regarding certain issues dealing with what has been referred to in these proceedings as the “put-away” feature.

[ 5 ] Knapczyk now seeks to cross-examine the affiant in relation to the other subjects listed in his Garofoli notice; that is, the affiant’s “knowledge of Michael Marche’s knowledge, and the refusal to utilize Michael Marche as an investigative tool, and his failure to disclose this to the authorizing judge.” The grounds offered are that the affiant knew that Marche was willing to provide high level information about Alcantara; he was a confidante of Jeffrey Mark Caines (a former co-accused) and other known persons; and he was capable of providing high level information about Caines and other known persons.

He alleges the affiant failed to provide this information to the authorizing judge and, as a result, did not provide full and frank disclosure. [ 6 ] Knapczyk’s co-accused, Alcantara, joins in the application. II. Facts [ 7 ] 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, 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 A.

Wiretap Authorization 1709 [ 8 ] Wiretap authorization 1709, granted on August 23, 2005, authorized the RCMP to hookup a single “principal known person,” Alcantara, from August 23 rd to October 21, 2005. The investigative theory being pursued by the RCMP at the time was set out in Sergeant Anderson’s affidavit of August 22 nd . The RCMP believed on what it felt were reasonable grounds that Alcantara was involved in trafficking cocaine at the multi-kilogram level in Alberta.

A number of his alleged accomplices or criminal associates were identified as ancillary targets, including Knapczyk, Beau Yakimishyn, Nicholas Roberts and others. The RCMP were of the view that Alcantara was being supplied by someone associated with the Hells Angels in British Columbia.

None of Alcantara’s customers, including Caines, were mentioned in this description of the investigative objectives. [ 9 ] One of the sources of information relied on by the affiant of WT 1709 was a person identified as Informant R (Michael Marche, who was arrested in November 2005, and waived his informer privilege in February 2006, gave a statement and agreed to be a Crown witness). Sergeant Anderson indicated in his affidavit that Constable Gibson had been handling Informant R since April 2005 and Informant R previously had provided information to the RCMP in the 1990s.

It gave information about his criminal record and “past proven reliability.” Sergeant Anderson deposed that “Confidential Informant ‘R’ is not interested or I have determined that Confidential Informant ‘R’ is currently not suitable to be utilized in a civilian agent capacity in relation to this investigation.” However, he also advised in the affidavit that this statement was boiler-plate language used regarding each Confidential Informant out of concern that providing a separate and distinct rationale for each could lead to exposure of their identities.

[ 10 ] The affidavit noted that Informant R reported he was privy to information about the cocaine trafficking business in Fort McMurray and, in particular, the activities of Caines, including that Caines had taken over the cocaine market from Sekulich, this change had been decided on and facilitated by the Hells Angels, Caines used a particular cell phone number to traffic cocaine in Fort McMurray and Sekulich left Fort McMurray because he felt threatened by the Hells Angels, although he planned to return.

Informant R advised that “Reggie” [who turned out to be Alcantara] from Edmonton was one of two persons supplying Caines and that “Reggie” had been in Fort McMurray lately with Caines. [ 11 ] Sergeant Anderson deposed that any reference to personal knowledge made by him meant at least one of the following: (

a) the confidential informant personally witnessed the described event; (

b) the confidential informant had information disclosed to him as a result of a conversation he had with the individual noted in the subparagraph; or (

c) the confidential informant overheard a conversation where the information was disclosed by the individual noted in the subparagraph. B. Wiretap Authorization 1712 [ 12 ] Based on affidavits sworn by Sergeant Anderson on October 13, 2005, WT 1712 was granted on October 17, 2005 for the period October 18 th to December 16, 2005. One authorization was pursuant to ss 185 and 186 of the Code . The second was a criminal organization offence wiretap authorization pursuant to s 186 (1.1).

WT1712 permitted hookup on six primary investigative targets, including Alcantara, Knapczyk, Caines, Yakimishyn, Charles Weston Flight and another. [ 13 ] In his affidavit in support of WT 1712, Sergeant Anderson summarized the investigative theory on which the expanded authorization was being sought. He deposed to believing on reasonable grounds that the six primary targets were engaged in a conspiracy by which Alcantara and Knapczyk were obtaining large quantities of cocaine from British Columbia, which in turn they were supplying to Caines in Fort McMurray to feed his trafficking business there.

He attested to his belief those three individuals were involved in a criminal organization and that Alcantara and Knapczyk, who were associated with Hells Angels, were receiving a substantial “tax” from Caines in return for the benefits he received from being associated with the Hells Angels.

He further deposed to the belief that Flight and the others were involved in the cocaine distribution conspiracy and might be part of the criminal organization. [ 14 ] The affidavit in support of WT 1712 again referred to information provided by Informant R, based on his personal knowledge, including information given on August 11, 2005 which described Caines as “arranging multi-kilogram level deliveries of cocaine into Fort McMurray from Calgary.” Informant R indicated “Caines’ drug trafficking crew” used text messaging for communicating with one another.

He also mentioned a number of people who had been obtaining their cocaine from Caines and were trafficking in Fort McMurray and someone else said to be storing cocaine for Caines. The affidavit disclosed that Informant R had advised his handlers on September 6, 2005 of additional information relating to Caines’ cocaine trafficking operation.

He told them the number for the cell phone Caines was using, that Caines had travelled to Edmonton the past week to arrange for the purchase of cocaine from members of the Hells Angels and that a Hells Angels prospect had been in Fort McMurray assisting Caines with his cocaine trafficking business. Further, the affidavit set out that, on September 29, 2005, Informant R had identified Flight and said he was a drug and money courier used by Caines.

In a separate part of the affidavit, the authorizing judge was told Informant R was Marche, that he was engaged in cocaine trafficking, he obtained his cocaine from Caines, he was being listed as a secondary object of the wiretap authorization, and he recently had become a “past proven informant.” The affidavit reported information from Informant K which suggested that “MK” was one of the principal drug traffickers supplied by Caines in Fort McMurray. Sergeant Anderson deposed as to his belief “MK” was Marche. C.

Wiretap Authorization 1713 [ 15 ] Based on Sergeant Anderson’s affidavit of December 13, 2005, WT 1713 was granted on December 14, 2005, for the period

December 16 th to February 13, 2006. One of the authorizations was pursuant to ss 185 and 186 of the Code while the other was granted pursuant to s 186(1.1). WT 1713 allowed the RCMP to hookup on three primary investigative targets, including Alcantara, Yakimishyn and Sean Critch. The focus was on Alcantara’s Edmonton-based cocaine distribution business and immediate criminal organization.

The investigative theory set out in the affidavit was that Alcantara, Yakimishyn, Critch and possibly others, constituted a criminal organization for the distribution of large quantities of cocaine and money, and that Alcantara and Yakimishyn were obtaining large quantities of cocaine from a named individual associated with the Hells Angels in Vancouver. The deponent deposed to his belief that Alcantara maintained a “hands off” approach to drug activities carried out by the other two, but provided verbal direction and received benefits from their activities.

Caines and Knapczyk had been dropped as primary targets. The deponent gave his opinion that sufficient evidence had been secured on Caines to support charges against him and certain of his associates. There was no new information from Informant R mentioned. III. Information Allegedly Not Disclosed to the Authorizing Judge [ 16 ] The Applicants assert that Sergeant Anderson’s failure to include certain information in the affidavits, including the following, was a material omission: WT 1709 (

a) Informant R (Marche) was a close confidant to Caines and Sekulich. (

b) Informant R (Marche) was believed to be selling significant quantities of cocaine for Caines. (

c) Informant R (Marche) had provided the RCMP with information regarding: ∙ Caines being a multi-kilogram cocaine dealer using Telus text messaging to communicate with his crew; ∙ Where Caines was storing his cocaine, the individuals who were obtaining cocaine from Caines, and the individuals trafficking for him. ∙ Chad Webber selling cocaine in Fort McMurray and obtaining his cocaine from Caines and then “Rico.” ∙ “Rico” from Calgary and “Reggie” from Edmonton working together. ∙ other information demonstrating how well placed Marche was in Caines’ network. ∙ by May 30, 2005, Sekulich was back in Fort McMurray trafficking cocaine. ∙ by June 15, 2005, Caines was splitting his time between Fort McMurray and Calgary. (

d) The above noted information Informant R (Marche) provided the RCMP was based on personal knowledge. (

e) Informant K identified MK as one of the people Caines had been supplying with cocaine in Fort McMurray;

(

f) Informant K’s information was based on personal knowledge. (

g) The RCMP believed MK was informant R (Marche). WT 1712 (

a) Caines and Sekulich were competing for the Fort McMurray cocaine market. (

b) Sekulich also obtained cocaine from the Hells Angels and had their backing. (

c) Informant R (Marche) provided the RCMP with information that assisted them in obtaining a search warrant for Aaron McDonald’s residence [on September 15, 2005], which resulted in the seizure of a significant amount of cocaine, cash, a handgun and other items. (

d) Informant R (Marche) gave a statement to the affiant advising that: ∙ he was a former trusted member of the Caines’ network and a significant cocaine trafficker in that network; and ∙ he provided the RCMP with information regarding a telephone call he received from Caines on September 15, 2005 advising him that an anticipated shipment of cocaine had come in and he was to pick up his supply from Aaron McDonald’s residence. WT 1713 (

a) Informant R (Marche) provided the RCMP with information that assisted them in obtaining a search warrant for the vehicle of Flight (Caines’s alleged courier) on October 27, 2005, in which four kilograms of cocaine and a quantity of marihuana were seized. IV. The Law A. Legislation [ 17 ] The Applicants rely on the statutory pre-conditions for the granting of an authorization to intercept private communications set out in s 186 of the Code , which provides that: 186(1) An authorization under this

section may be given if the judge to whom the application is made is satisfied (

a) that it would be in the best interests of the administration of justice to do so; and (

b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the

urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigativeprocedures. [18] These pre-conditions applied to WT 1709, and to one of the two authorizations comprising each of WT 1712 and WT 1713.The other of the two authorizations comprising each of WT 1712 and 1713 were provided under s 186(1.1) of the Code, which sets outan exception for criminal organizations and terrorism offences. It reads: 186(1.1) Notwithstanding paragraph (1)(b), that paragraph does not apply where the judge is satisfied that the application for anauthorization is in relation to (

a) an offence under

section 467.11, 467.12 or 467.13; (

b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or (

c) a terrorism offence. [19] The constitutionality of ss 185(1.1) and 186(1.1) is being challenged in a separate application. B. Statutory Requirements [20] In R v Garofoli, (SCC), [1990] 2 SCR 1421 at para 33, Sopinka J indicated that as wiretaps have been held toconstitute a search and seizure within the meaning of s 8 of the Charter (R v Duarte, (SCC), [1990] 1 SCR 30), thestatutory provisions authorizing them must conform to the minimum constitutional requirements demanded by s 8, as set out in Hunter vSoutham Inc, (SCC), [1984] 2 SCR 145 at 168.

These are "reasonable and probable grounds, established upon oath, tobelieve that an offence has been committed and that there is evidence to be found at the place of the search." Further, as noted bySopinka J in Garofoli, the applicant must meet the requirements of what is now s 186(1)(

b) with respect to other investigativeprocedures. [21] In R v Araujo 2000 SCC 65 at paras 34 and 37, LeBel J confirmed the following test for s 186(1) authorization, as he haddescribed it in writing for the Quebec Court of Appeal in R v Hiscock, (QC CA), [1992] RJQ 895, 72 CCC (3d) 303at 319 and 325, leave to appeal refused, [1993] 1 SCR vi, [1992] SCCA No 331: [TRANSLATION] In his role, and in order to avoid inadmissible intrusions into the private lives of citizens, the authorizing judge mustensure that the application is based on reasonable and probable cause.

It must not constitute a mere fishing expedition based on puresuspicion. He must also be convinced that it is necessary to have recourse to this particular investigative technique. [TRANSLATION] ... s. 186 does not require that all alternative investigative techniques have been tried. It is not simply a recourse oflast resort.

It is a technique which must not be used in the absence of serious, probable grounds, but which can be employed not onlywhen the other methods have failed, but also, when they appear to have little chance of success or when the urgency of the matter wouldotherwise render the investigation unsuccessful. [22] The Applicants do not challenge the existence of reasonable and probable grounds. [23] LeBel J said in Araujo at para 37 that the proper test under s 186(1)(

b) is whether “practically speaking, there is no otherreasonable means of investigation.”

[24] The affiant of an affidavit in support of a wiretap authorization has an obligation to make full and frank disclosure of all material facts. Sulyma J in R v Lee, 2007 ABQB 767 at para 27, 88 Alta LR (4th) 231 adopted the following definition of “material facts”offered by Macdonald J in R v Bogiatzis, [2003] OTC 785 at para 11: Material facts are those which may be relevant to an authorizing judge in determining whether the criteria for granting a wiretapauthorization have been met.

For the disclosure to be frank, meaning candid, the affiant must turn his or her mind to the facts which areagainst what is sought and disclose all of them which are known including all facts from which inferences may be drawn. Consequently,the obligation of full and frank disclosure means the affiant must disclose in the affidavit facts known to the affiant which tend todisprove the existence of either reasonable and probable grounds or investigative necessity in respect of any target of the proposedauthorization. (emphasis added) C.

Cross-Examination of Affiant [25] In Garofoli at 1465, Sopinka J indicated that while the granting of leave to cross-examine the affiant is in the discretion of thetrial judge, leave should be granted if the trial judge is satisfied that cross-examination is necessary to enable the accused to make fullanswer and defence. “A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending todiscredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds.” [26] Sopinka J emphasized that cross-examination should be limited to questions that are directed to establish that there was nobasis upon which the authorization could have been granted. [27] The applicant need not demonstrate that cross-examination will be successful in discrediting one or both statutoryrequirements.

A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown: R v Pires: R vLising, 2005 SCC 66, [2005] 3 SCR 343 at para 40. V. Argument of the Parties A.

The Applicants [28] The Applicants contend that a failure by Sergeant Anderson to provide full and frank disclosure to the authorizing judge ofthe information noted above relating to Informant R is a sufficient basis to warrant his cross-examination. [29] The Applicants rely on R v LaChance (SCC), [1990] 2 SCR 1490, in which Sopinka J, writing for themajority, found that the trial judge should have permitted cross-examination of the affiant with respect to potential further use of anundercover informant.

He said that if the cross- examination impeached the affiant’s statement as to the use of other investigativetechniques, there would be no basis for granting the authorization since the authorizing judge must be satisfied that “other investigativetechniques are unlikely to succeed.” [30] The Applicants contend that the information which Sergeant Anderson failed to disclose to Slatter J in the present case ismaterial as it evidences that Marche, at the time of WT 1709, was willing and able to provide information about Caines’ cocainedistribution network in Fort McMurray and the suppliers of that network, including Alcantara; and at the time of WT 1712 (andpresumably WT 1713), was willing and able to alert the RCMP in advance to the activities of Caines’ distribution network, and to theactivities of the distribution network supplying Caines. [31] The Applicants submit that the affidavit in support of WT 1709 implied there was an organized crime aspect to whatAlcantara was doing, muscling Sekulich out of town, that conveyed a sense of urgency and gravity to the situation.

They argue that theomissions with respect to WT 1709, in particular evidence that Sekulich was still in Fort McMurray through the summer of 2005, detract

from investigative theory presented and undermine this basis for the authorization. [ 32 ] On this point, the Applicants rely on the passage from Bogiatzis at para 11 noted above; that is, “... the obligation of full and frank disclosure means the affiant must disclose in the affidavit facts known to the affiant which tend to disprove the existence of either reasonable and probable grounds or investigative necessity in respect of any target of the proposed authorization. [Emphasis added.] [ 33 ] They point to the boiler-plate language used by Sergeant Anderson in denying that any of informants would agree to or were suitable for use as civilian agents.

The Applicants refer the statement of LeBel J in Araujo at para 47 to the effect that an affidavit in support of a wiretap authorization should never attempt to trick the authorizing judge and that use of boiler plate language has the potential to do just that. [ 34 ] The Applicants contend that in light of the omissions by Sergeant Anderson and his use of boiler-plate language, there is a reasonable likelihood that his cross-examination will elicit testimony that will assist the court in determining a material issue; that is, whether there was investigative necessity for the wiretap authorizations. B.

The Crown [ 35 ] The Crown maintains that the Applicants have not shown any basis for concluding the affidavit was not full, frank and fair or any basis for believing that particular omissions have any bearing on the issue of whether there was a basis for granting the wiretap authorizations. [ 36 ] It says the fact that Marche was closely connected to Caines, his cocaine distribution network, Sekulich and the Fort McMurray drug trafficking trade was not germane to WT 1709 or WT1713, as Caines was not a target of either, and this information was disclosed in WT 1712.

In any event, it asserts the affidavit in support of WT 1709 contained information which made it apparent Marche was closely connected to the Fort McMurray drug trafficking trade, Caines’ drug distribution operation and Sekulich. It contends the omitted information did not suggest that Marche had any knowledge of other areas in which Alcantara’s drug distribution network operated. Therefore, it would not have assisted with respect to investigation into those aspects of Alcantara’s operation.

As a result, it was not material. [ 37 ] The Crown asserts that the focus of WT 1712 was not on Caines’ distribution network and his suppliers. Rather, it was on the criminal arrangement between Caines, Alcantara and others whereby Caines paid a tax to Alcantara and Knapczyk in return for the benefits of his drug trafficking business being associated with the Hells Angels in Edmonton. It maintains that it was clear from the affidavit that Marche was very closely connected to and part of Caines’ operation. It notes that not every single piece of information must be included in the affidavit.

It argues that much of the omitted information does not address the investigative objective of WT 1712 and, therefore, was not material.

It says there was already information in the affidavits in support of WT 1709 and 1712 that suggested Caines did not have a monopoly on the cocaine distribution trade in Fort McMurray after May 2005 and the additional details that Sekulich had returned and was competing with Caines was superfluous information. [ 38 ] Further, the Crown submits that the RCMP’s access to inside information about Caines’ drug trafficking business does not negate the investigative necessity of the wiretap authorizations.

It says that even if Marche had information about the alleged taxation agreement, his knowledge could not be used in a prosecution. He was an informant and could not testify to the information. Nor was it reasonable to expect the agreement to have been recorded in such a manner that it could be seized.

Further, as the affidavits alleged that Alcantara took a hands off approach with respect to the cocaine, Marche’s willingness to assist by supplying information leading to the seizure of Caines’ cocaine shipments could not afford evidence against Alcantara. [ 39 ] The Crown also contends there is no basis for the assertion Marche was either willing or suitable to be a civilian agent at the time the affidavits were sworn. It notes that use of boiler-plate language by the affiant does not vitiate the wiretap authorization and there is no evidence it was misleading. VI. Analysis

[ 40 ] The question on this voir dire is whether the Applicants have shown a basis for the view that cross-examination of Sergeant Anderson will elicit testimony tending to discredit the existence of a statutory precondition, the existence of investigative necessity for the wiretap authorizations in this case. [ 41 ] The Applicants need not demonstrate that cross-examination will be successful in discrediting the statutory requirements, but simply that there is a reasonable likelihood that it will assist the court to determine a material issue: R v Pires : R v Lising at para 40 . [ 42 ] The Applicants wish to cross-examine Corporal Anderson on his allegedly strategic omissions, including but not limited to: (

a) Sekulich’s return to the trafficking business in Fort McMurray (the Applicants note that Sergeant Anderson deposed that Sekulich was “now” no longer in Fort McMurray, citing an April 7, 2005 report, although he swore the affidavit on August 22, 2005 and omitted reference to Sekulich having been in Fort McMurray over the summer); (

b) why Sergeant Anderson did not advise the authorizing judge that Marche’s information resulted in the largest drug bust in Fort McMurray’s history; (

c) why Sergeant Anderson downplayed Marche’s drug trafficking activity in Caines’ organization; (

d) what consideration was given to arresting Marche prior to November 24, 2005 (the Applicants note that two weeks before the affidavit was sworn for WT 1713, Marche was arrested and they suggest there must have been discussions about whether the RCMP should start leaning on him to become an agent. The considerations around this subject were not disclosed to the authorizing judge and the Applicants submit they are relevant to whether he could have been used to a greater extent than he was by the police); and (

e) whether Marche was willing to be an agent of the RCMP rather than merely an informant. [ 43 ] The Applicants say that the purpose of this cross-examination would be to provide some evidence relevant to the question of investigative necessity and what they contend is the “stand alone” issue of the failure to fully and frankly disclose information to the authorizing justice. [ 44 ] In R v Alcantara , the prosecution of Yakimishyn, Alcantara, Critch and Roberts (see 2009 ABQB 524 ), the latter three applied before Sulyma J to cross-examine Sergeant Anderson as affiant of WT 1709.

Like the Applicants, they argued that Sergeant Anderson had failed to provide full and frank disclosure to the authorizing judge by omitting material information about Informant R from his affidavit in support of WT 1709. [ 45 ] Alcantara was the sole “principal known person” identified in WT1709. Knapczyk, Yakimishyn, Roberts and certain others were secondary targets. [ 46 ] Like Sulyma J, I too note that the context of the investigation informs the test of investigative necessity.

In terms of WT 1709, the RCMP were focussed on Alcantara’s alleged involvement in trafficking cocaine at the multi-kilogram level in Alberta and his supply of cocaine by someone associated with the Hells Angels in British Columbia. [ 47 ] Slatter J, the authorizing judge, was provided in the affidavit in support of WT1709 with information regarding Informant R. He was advised that Informant R was privy to information about the cocaine trafficking business in Fort McMurray and about the activities of Caines and Sekulich in that regard.

He was told Informant R had information that “Reggie” from Edmonton was one of those persons supplying cocaine to Caines and that “Reggie” had been in Fort McMurray with Caines.

[ 48 ] There was no evidence presented in the voir dire before me that Marche had contact with Alcantara or contact with Alcantara’s associates identified in the affidavit in support of WT 1709, including Knapczyk.

There was no evidence that he could implicate Alcantara or any of his associates in relation to the investigative objectives of WT 1709. [ 49 ] Given this, I agree with Sulyma J’s finding that: ... it is entirely unrealistic to conclude that the so-called lack of disclosure is relevant to the issue of investigative necessity and that the affiant or the authorizing Judge ought to have considered this alternative method of investigation.

This is particularly so as the affidavit indicates Alcantara had distanced himself from any hands-on involvement and that the police to the date of the application had been unable to gather necessary evidence against him by all the other means, including the utilization of many informers and surveillance. [ 50 ] I too conclude that the information regarding Marche which the Applicants claim was improperly omitted from the affidavit in support of WT1709 was not material as disclosing a realistic avenue of investigation that the RCMP ought to have pursued instead of obtaining the wiretap authorization. [ 51 ] While I note LeBel J’s caution in Araujo against the use of boiler-late language by an affiant, the evidence presented on this voir dire did not contradict the statement that Informant R (Marche) either was unwilling or unsuitable to act as a civilian agent.

Indeed, the evidence included a source assessment relating to Marche dated April 9, 2005 which indicated he was not “Willing to Act as an Agent” at that time. While he did agree to become a Crown witness, he did so only after WT 1713 was implemented and after he was facing criminal charges himself. [ 52 ] I conclude that there has not been any reasonable likelihood shown that cross-examination of Sergeant Anderson in relation to WT 1709 will assist me in determining a material issue. [ 53 ] I reach the same conclusion in terms of WT1713, for the same reasons.

Caines was not a principal known party named in that authorization. The investigative objective was the alleged criminal organization for distribution of large quantities of cocaine and money involving Alcantara, Yakimishyn, Critch and others.

The information which the Applicants now complain was omitted from WT 1713 dealt with Marche’s knowledge of and involvement in activities relating to Caines and his Fort McMurray associates. [ 54 ] To borrow from Sulyma J’s voir dire decision, “... the purpose of the police in pursuing this investigation was to collect evidence regarding a huge conspiracy and... they were well beyond the stage of being able to do that by the use of one informer.” That is particularly so since there was no evidence that Marche had direct contacts with the alleged criminal organization which was the focus of WT 1713. [ 55 ] Caines was a primary target of WT 1712, as were Alcantara and Knapczyk.

Slatter J was informed by the affiant that Informant R was providing information based on his personal knowledge, he purported to know a great deal about Caines’ drug enterprise, including who he sold to, how his associates communicated with one another, the identity of the group’s courier, the cell phone number used by Caines and the fact Caines had made arrangements with the Hells Angels.

He was advised that Caines supplied cocaine to Informant R, Informant R was an “other known person” listed in the draft authorization, Informant R was Marche, “MK” was an alias for Marche and according to another informer, “MK” was one of the principal persons supplied with cocaine by Caines. [ 56 ] I agree with the Crown that it would have been apparent from this information that Informer R (Marche) was an insider and had intimate knowledge of Caines’ drug trafficking operation in Fort McMurray. [ 57 ] The investigative objective in WT 1712 was the alleged conspiracy and criminal organization involving Alcantara and Knapczyk, who were associated with the Hells Angels, obtaining large quantities of cocaine from British Columbia, supplying quantities of cocaine to Caines to feed his trafficking business there, and Caines paying Alcantara and Knapczyk a substantial “tax” in return for the benefit of being associated with the Hells Angels. [ 58 ] Sergeant Anderson failed to disclose that Marche provided the RCMP with information regarding a telephone call he received

from Caines on September 15, 2005 advising him that an anticipated shipment of cocaine had come in and he was to pick up his supply from Aaron McDonald’s residence. He failed to disclose that this led to the RCMP obtaining a search warrant, which resulted in the seizure of a significant amount of cocaine, cash, a handgun and other items. [ 59 ] As noted by the Crown, the affiant is only obliged to give full and frank disclosure of facts material to the statutory requirements for the wiretap authorization.

The information omitted by the affiant in relation to WT1712 related to Caines’ alleged drug operations in Fort McMurray rather than any criminal association Caines might have had with Alcantara and/or Knapczyk. Caines’ Fort McMurray cocaine distribution operation was not the main investigative objective of WT 1713.

Indeed, none of Caines’ principal distributors were primary targets in the authorization. [ 60 ] I agree with the Crown that it is untenable that tips from an insider within Caines’s cocaine distribution group, one who had no apparent contact with Alcantara or Knapczyk, could have been sufficient to meet the investigative objective outlined in WT 1712. [ 61 ] The purpose of the police in pursuing this investigation was to collect evidence regarding a huge drug trafficking conspiracy covering a wide geographical area and, as described in Araujo at para 43 , to "bring the higher ups in a drug ring to justice." The purpose was to dismantle Alcantara's drug trafficking operation.

This investigation extended far beyond the ken of one informer, who has not been shown to have had personal or any contact with Alcantara or Knapczyk and who declined the role of police agent, only waiving his informer privilege to become a witness after the wiretap investigation was over. [ 62 ] I see no reasonable likelihood that cross-examination of Sergeant Anderson will elicit evidence tending to discredit the existence of the investigative necessity required for the authorizations or that will otherwise be of assistance to the court in determining a material issue. [ 63 ] Consequently, the application is dismissed.

Heard on the 14,15 and 17th days of November, 2011. Dated at the City of Edmonton, Alberta this 21st day of November, 2011. S.J. Greckol J.C.Q.B.A. Appearances: Dennis Hrabcak Public Prosecution Service of Canada for the Crown

A. Clayton Rice Ouellette Rice for the Accused John Alcantara Simon Renouf, Q.C. for the Accused Alan Knapczyk