R. v. Donaldson, 2012 ABQB 235

Court of Queen ’ s Bench of Alberta Citation: R. v. Donaldson, 2012 ABQB 235 Date: 20120413 Docket: 110162476Q3 Registry: Calgary Between: Her Majesty the Queen Crown (Respondent) - and - Jeffery Douglas Donaldson and Reade Brett Wilkinson Accused (Applicants) _______________________________________________________ Memorandum of Decision (Ruling on a Charter Voir Dire ) of the Honourable Mr. Justice W.P.

Sullivan _______________________________________________________ Background [ 1 ] On April 27, 2009 and again on June 24, 2009, a Justice of this Court issued authorizations to intercept private communications in this case. The affidavit in support of the authorization to intercept was sworn by Constable Gordashko. The Principal Known Persons (PKP) were Ryan Douglas Harper and Jeremy Donald Lorenowicz, in the second authorization Joshua James Lorenowicz was added as a third PKP.

[ 2 ] The two applicants in this Charter Application, Jeffrey Douglas Donaldson and Reade Brett Wilkinson were Other Known Persons who were alleged to have communications with the PKP. [ 3 ] At the trial of this matter, the Crown will be seeking to tender communications intercepted between Donaldson and Wilkinson and others and the PKP. [ 4 ] In support of her belief that the information set out in her affidavit is true, Constable Gordashko relied in part on the information given to her and the Calgary Police Service provided by informant “B”. [ 5 ] In their Charter argument, the Applicants state the following: Among other things, the Affiant advised the issuing justice that confidential informant “B” told police that: a) “Brent Ehrich is a male that lives in Calgary.

He is muscled up and is about 32 to 33 years old. He lives in a larger bungalow style house in the north west side of Calgary around a fake lake” b) “Harper is moving multiple (v2) kilograms of cocaine a month and (v2) kilograms of weed. (V2) kilograms of cocaine goes into Calgary and (v2) goes to the east coast. The (v2) is middle to Ryan Hunter and Jesse Forster.” c) “Harper will also send the cocaine into Regina, (v2)” In PA #1551 the Affiant advises the issuing justice that on November 13, 2008 she and Detective Glacier drove by Ehrich’s residence and note that it is a two-story house, not a bungalow style.

She further noted that there were no fake lakes in the area of the residence. [ 6 ] During an earlier Stinchcombe application in this case, file, Constable Gordashko testified that Calgary City Police, at the request of the Regina Police, were to inquire into a link between PKP and individuals in Regina; however Calgary City Police were unable to confirm any connection between the PKP specifically Ryan Harper and the Regina targets.

The Applicants state that this “material fact” was not disclosed to the issuing Justice and they state that this fact is material as it undermines the credibility of the informant “B” who believed there was a connection. [ 7 ] In addition, at the Stinchcombe hearing, Constable Gordashko testified that it was not disclosed to the issuing Justice that informer “B” had subsequent to his original information, advised his “handler” that he would consider becoming an agent. Informer “B” never did become an agent.

The Applicants alleged this fact is material “because if the informer is willing to become an agent and obtain evidence, via a one-party consent, and later testify there is no ‘investigative necessity’ ...” for a wire tap authorization. [ 8 ] The Applicants also further allege that there was no investigative necessity for these two wire-tap authorizations as there was another investigation ongoing in the City of Calgary that may have been related to this matter. [ 9 ] The Applicants also allege that there is a high level of perfection required with respect to the information provided to the issuing Justice.

This was not met, they say, in this case. Analysis [ 10 ] There is no question that the authorizing Justice is entitled to know the factual basis for the conclusion that the informant is

reliable and that the affiant must deal with all relevant information both positive and negative to a high standard required by law. [11] In R v. Araujo, 2000 SCC 65, Mr. Justice LeBel: the legal obligation on anyone seeking an ex parte authorization is full and frank disclosure of material facts ...in order that he or she canmake an assessment of whether these rise to the standard required in the legal test for the authorization. [12] In R. v. Bagasse [2003] O.J.

No. 3335: The affiant should never make a misleading statement in the affidavit either by means of the language used or by means of a strategicomission of information. [13] I agree. However the totality of the information must be considered. [14] The Crown relied on a decision of Mr. Justice Romilly of the British Columbia Supreme Court, R. v. Adam 2006 BCSC 200: 9 More recently, LeBel J. stated in R. v.

Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65 at para. 51: In looking for reliable information on which the authorizing judge could have granted the authorization, the question is whether therewas at least some evidence that might reasonably be believed on the basis of which the authorization could have issued. 10 I add to this LeBel J.'s statement in Quebec (Attorney General) v.

Laroche, 2002 SCC 72 , [2002] 3 S.C.R. 708 at para.64: If the reviewing judge determines that at least one such piece of evidence existed and could reasonably have been believed, to justify theapplication for the warrant, the judge's examination should stop there. 68 To this I add the comments of Rosenberg J.A. in R. v.

Williams (2003), (ON CA), 181 C.C.C. (3d) 414 (Ont.C.A.) at para. 14: Investigative necessity is a stringent requirement, requiring demonstration that there is, "practically speaking no other reasonable methodof investigation, in the circumstances of the particular criminal inquiry" ... [15] Our Court of Appeal considered these issues in R. v. Darby, 2012 ABCA 27: 19 We agree with the trial judge's findings on this point. From a practical perspective, virtually any ITO can, in retrospect, be betterdrafted to have included additional information: See R. v. Nguyen, 2011 ONCA 465 at para 58, 281 OAC 118.

However, the test is notwhether the ITO is perfectly drafted, but whether it provides "full and frank disclosure of material facts". See R. v. Araujo, 2000 SCC 65at para 46, [2000] 2 SCR 992... 21 Much of the other information not included in the ITO was neutral. For example, McDermott's criminal record would have madelittle difference, particularly in light of the fact that it was relatively dated. In any event, the ITO specifically noted McDermott'sadmission that he was a prolific car thief and a crack cocaine addict.

Likewise, the failure to mention whether the appellant had acriminal record, implied that he had none. What was relevant to the police investigation, and set out in the ITO, was that the appellant

was associated with several known Asian gang members. We also see little benefit in the failure to include in the ITO the fact thatadditional inquiries had not been made regarding the manner in which the Blackberry bills were being paid.

As noted by the OntarioCourt of Appeal in Nguyen at para 51: There is no obligation on applicants to anticipate, and to explain away in advance, every conceivable indicia of crime they did not see orsense and every conceivable investigative step they did not take at the time in order to counter the creative arguments of able defencecounsel on a review hearing many months or years after the event. 22 The only information not included in the ITO that may have been of assistance to the appellant was his statement to ConstableDemarino denying knowledge and ownership of the handgun.

However, in all of the circumstances, this information was of marginalassistance as the evidence strongly pointed to the appellant as the owner of the gun, and it is unlikely that he would have admitted that hestored an illegal gun in his vehicle.

But the failure to include this information in the ITO does not lead to the conclusion that the ITO wasmisleading, particularly when the balance of the information would have strengthened the warrant application. 23 To conclude, the question is not whether the missing information invalidates the warrant, but "whether there was sufficient,credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had beencommitted and that evidence of that offence would be found at the specified place and time": See R. v.

Morelli, 2010 SCC 8 at para 40,[2010] 1 SCR 253. Even factoring in the evidence supportive of the appellant's innocence, namely his denial of ownership of thehandgun, there was more than enough evidence before the issuing judge to justify the issuance of the warrant. [16] In R. v. Ebanks, 2009 ONCA 851: 20 Judges reviewing wiretap affidavits, or any materials in support of prior judicial authorizations, work within a narrowjurisdictional compass. In R. v.

Garofoli, (SCC), [1990] 2 S.C.R. 1421, Sopinka J. summarized the standard of review atp. 1452: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record whichwas before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could havegranted the authorization, then he or she should not interfere.

In this process, the existence of fraud, non-disclosure, misleading evidenceand new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether therecontinues to be any basis for the decision of the authorizing judge.

Conclusion [17] Noting the totality of the information that has been set out in the affidavit Constable Gordashko and her viva voce evidence atthe Stinchcombe hearing on March 6, 2012, I am satisfied that there is sufficient basis to support the decision of the authorizing judge.Therefore the affidavit evidence will be admitted and I find that the authorizations were properly issued by the authorizing Judge andthey are valid. [18] Application dismissed. Heard on the 3rd day of April, 2012. Dated at the City of Calgary, Alberta this 13th day of April, 2012.

W.P. Sullivan J.C.Q.B.A. Appearances: Robert Sigurdson for the Crown (Respondent) Karen B. Molle for the Accused Donaldson (Applicant Donaldson) Stefne Madison for the Accused Wilkinson (Applicant Wilkinson)