R v Alcantara, 2012 ABQB 31

Court of Queen ’ s Bench of Alberta Citation: R v Alcantara, 2012 ABQB 31 Date: 20120113 Docket: 070060157Q1 Registry: Edmonton Between: Her Majesty the Queen - and - John Reginald Alcantara and Alan Peter Knapczyk Accused _______________________________________________________ Reasons for Judgment - Search and Seizure Motion of the Honourable Madam Justice S.J. Greckol _______________________________________________________ I. Introduction.............................................................................................................. Page: 4 II.

Background............................................................................................................ Page: 4 III. Issues...................................................................................................................... Page: 8 IV. Facts and Evidence............................................................................................... Page: 9 A. Facts from the Abuse Decision................................................................ Page: 9 B. Agreed Statement of Facts.................................................................... Page: 11 C.

Crown Representations on the Voir Dire .............................................. Page: 14 D. Testimony on Voir Dire ........................................................................... Page: 15

1. Cindy Hering ................................................................................. Page: 15 3. Sergeant Mark Anderson ............................................................ Page: 20 E. Other Evidence on Voir Dire .................................................................. Page: 22 V. Relevant Charter Provisions............................................................................... Page: 23 VI. The Applicants’ Standing under

Section 8....................................................... Page: 24 A. Alcantara’s Arguments............................................................................ Page: 24 B. Knapczyk’s Arguments........................................................................... Page: 26 C. Crown’s Arguments................................................................................. Page: 26 D. Decision on Standing under Sections 8................................................ Page: 29 VII. Breaches of the Applicants’

Section 8 Rights.................................................. Page: 32 A. The Law on Search and Seizure............................................................ Page: 32 1. Minimum constitutional requirements ........................................ Page: 33 2. The test for review ........................................................................ Page: 33 B. Alcantara’s Arguments............................................................................ Page: 34 C. Knapczyk’s Arguments........................................................................... Page: 35 1.

General ......................................................................................... Page: 35 2. Material non-disclosure .............................................................. Page: 37 (

a) Live monitoring ................................................................ Page: 37 (

b) Minimization clauses ...................................................... Page: 38 (

c) Duty on Crown agent ...................................................... Page: 39 3. Implementation ............................................................................ Page: 40 (

a) Breach of live monitoring clauses ................................ Page: 40 (

b) Solicitor communications .............................................. Page: 40 (

c) Cell block communications ........................................... Page: 42 D. Crown’s Arguments................................................................................. Page: 44 1. Material non-disclosure ............................................................... Page: 44 (

a) General ............................................................................. Page: 44 (

b) Crown agent ..................................................................... Page: 46 (

c) Put-away issue and auto-minimization ........................ Page: 47 (

d) Cell block interceptions .................................................. Page: 47 2. Implementation ............................................................................. Page: 48 (

a) Put-away issue ................................................................. Page: 48 (

b) Auto-minimization ........................................................... Page: 48 (

c) Solicitor communications .............................................. Page: 48 (

d) Cell block interceptions .................................................. Page: 49

E. Decision on

Section 8 Breaches (the Collins Analysis)..................... Page: 49 1. Validity of the authorizations ....................................................... Page: 49 (

a) Investigative necessity ................................................... Page: 49 (

b) Disclosure re cell block interceptions .......................... Page: 50 (

c) Disclosure re auto-minimization ................................... Page: 52 2. Was the law unreasonable? ....................................................... Page: 52 3. Was the manner of the searches unreasonable? ..................... Page: 53 (

a) Non-compliance with live monitoring requirements .. Page: 53 (

i) Use of the put-away feature ................................ Page: 53 (ii) Use of the put-away feature on non-target sessions Page: 54 (iii) Use of auto-minimization .................................... Page: 54 (iv) Use of auto-minimization on non-target sessions Page: 56 (

v) Monitors listening to non-target calls longer than reasonably was necessary ............................................................. Page: 56 (vi) Pay phone interceptions ..................................... Page: 56 (vii) Cell block interceptions ....................................... Page: 58 (viii) Solicitor communication interceptions .............. Page: 58 4. Conclusions on breaches of

section 8 of the Charter .............. Page: 63 VIII. Exclusion of Evidence under s 24(2) of the Charter ........................................ Page: 65 A. Legislation................................................................................................ Page: 65 B. Alcantara’s Arguments............................................................................ Page: 65 C. Knapczyk’s Arguments........................................................................... Page: 65 D. The Crown’s Arguments......................................................................... Page: 68 E.

Decision on Exclusion of Evidence....................................................... Page: 70 1. Threshold to section 24(2) analysis........................................... Page: 70 2. Grant Analysis.............................................................................. Page: 72 (

a) The seriousness of the Charter-infringing state conduct Page: 74 (

i) Abuse of process ................................................. Page: 74 (ii) The constitutionality of the criminal organization wiretap provisions. ............................................................................... Page: 75 (iii) Implementation of the authorizations ................. Page: 75 (

b) The impact of the breach on the Charter-protected interests of the Applicants ........................................................................................... Page: 77 (

c) Society's interest in the adjudication of the case on its merits Page: 78 (

d) Conclusion as to whether the evidence garnered in breach of s 8 should be excluded or whether the entirety of the evidence garnered under these wiretap authorizations should be excluded ............................... Page: 78 IX. The Applicants’ Standing under Sections 7 and 11(d).................................... Page: 79 A. Alcantara’s Arguments............................................................................ Page: 79 B. Knapczyk’s Arguments........................................................................... Page: 80

C. Crown’s Arguments................................................................................. Page: 80 D. Decision on Standing under Sections 7 and 11(d).............................. Page: 81 X. Breaches of the Applicants’

Section 7 and 11(

d) Right to a Fair Trial.......... Page: 82 XI. Conclusion............................................................................................................ Page: 84 I. Introduction [ 1 ] This prosecution was the result of a joint forces police investigation involving the Edmonton and Fort McMurray Drug Sections of the Royal Canadian Mounted Police [RCMP] as well as the Edmonton Police Service [EPS]. The investigation, referred to as Project Koker, also engaged the Edmonton Integrated Proceeds of Crime Unit. [ 2 ] The investigation commenced on or before February 7, 2005.

Throughout the course of the investigation, the police used various techniques including searches of electronic databases, physical surveillance, informants, telephone number recorder warrants, tracking device warrants, video surveillance warrants and search warrants obtained pursuant to the Criminal Code [ Code ] , and the Controlled Drugs and Substances Act [ CDSA ]. [ 3 ] The police also obtained five authorizations to intercept private communications under s 186 of the Code . Three were obtained under the traditional wiretap provisions.

The other two were obtained under the criminal organization wiretap provisions and mirrored two of the conventional authorizations. [ 4 ] The two accused, John Reginald Alcantara [Alcantara] and Alan Peter Knapczyk [Knapczyk] [collectively, the Applicants], claim that their ss 7, 8 and 11(

d) Charter rights were breached by the police in the fashion in which the authorizations were obtained and implemented.

Further, two of the authorizations were not authorized by law as the Code provisions under which they were obtained are said to be unconstitutional because investigative necessity is not a requirement of the authorization where there in a criminal organization. [ 5 ] As a remedy, each of the Applicants seeks the exclusion from evidence of any of the intercepted private communications identified in the Crown’s revised notice of intention issued under s 189(5) of the Code which was obtained in breach of his Charter rights or those of his co-accused, together with any derivative evidence. II.

Background [ 6 ] As stated in the abuse of process decision in this matter ( R v Caines , 2011 ABQB 692 [Abuse Decision]) at para 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 . . .

Private communications were intercepted pursuant to the wiretap authorizations from August 23, 2005 to February 13, 2006. [ 7 ] Each of WT1712 and WT1713, is comprised of two mirror authorizations; one based on s 186(1) of the Code , reliant on investigative necessity, and the other based on 186(1.1) of the Code , relying on an allegation of criminal organization. [ 8 ] In their Agreed Statement of Facts on this motion, the parties agreed that the police intercepted 51,733 communications (not including cell block interceptions), pursuant to the five authorizations. [ 9 ] The Applicants have been charged with conspiracy to traffic in cocaine contrary to s 5(1) of the CDSA and s 465(1)(

c) of the Code , trafficking contrary to s 5(1) of the CDSA , and a criminal organization offence contrary to s 467.12 of the Code . [ 10 ] Disclosure 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 total more than 59,000 pages. [ 11 ] In a notice of intention under s 189(5) of the Code dated March 6, 2008, the Crown gave notice that it would seek to introduce 464 of the intercepted private communications into evidence at the trial [First Notice of Intention]. [ 12 ] On January 13, 2010, the Applicants were notified by the Crown about the “put-away” issue.

The disclosure letter read in part: 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”. At our request, the RCMP conducted an audit of all the calls intercepted in the Project Koker investigation that were subject to the live monitoring requirement. Pursuant to the request, the RCMP generated a “Session History Report” for each of the lines that were subject to the live- monitoring provision ... . The reports are organized by phone line and include all the calls intercepted where the monitor stopped listening to the call before the telephone call ended.

[ 13 ] On April 12, 2010, Alcantara filed a ss 8 and 24(2) Charter notice seeking exclusion of impugned interceptions listed in the First Notice of Intention, including calls to which he was a party (Appendix A to his notice) and calls in which he allegedly was mentioned but to which he was not a party (Appendix B to his notice). [ 14 ] On September 15, 2010, the Applicants were served by the Crown with a revised notice of intention which listed 13 fewer intercepted private communications than the First Notice of Intention [Revised Notice of Intention]. [ 15 ] On October 4, 2010, Alcantara filed an application in relation to his search and seizure motion seeking to cross-examine Sergeant Mark Anderson, who swore the affidavits in support of the five wiretap authorizations. [ 16 ] On October 8, 2010, Knapczyk filed an application to exclude evidence pursuant to ss 8 and 24(2) of the Charter . [ 17 ] The Crown conceded that Alcantara had laid a sufficient foundation to warrant the Court granting him leave to cross-examine Sgt.

Anderson as to his knowledge of the put-away feature during implementation of the wiretap authorizations; his awareness that there was a controversy among the RCMP Special I (Electronic Surveillance Unit) personnel as to whether use of the put-away feature might contravene the live monitoring requirements of the authorizations; and his failure to disclose use of the put-away feature to the authorizing judge. [ 18 ] On January 24, 2011, Alcantara filed an amended Charter notice also seeking exclusion of intercepted private communications of his co-accused listed in the Revised Notice of Intention which he alleged were intercepted in violation of WT1712 and WT1713 as a result of use of the put-away feature (Appendix C to his Charter notice). [ 19 ] On August 10, 2011, Alcantara filed a further amended Charter notice seeking an order under s 24(2) of the Charter excluding from evidence all intercepted communications attributed to him or to anyone else in relation to which he has standing, together with any derivative evidence, obtained in breach of his rights to be secure against unreasonable search and seizure under s 8 of the Charter; and excluding all evidence ruled inadmissible against any co-accused, together with any derivative evidence, the admission of which would render his trial unfair and in breach of s 7 and 11(

d) of the Charter . [ 20 ] The grounds of Alcantara’s application are that: (

a) the WT1709, WT1712 and WT1713 authorizations required that certain intercepted communications be live monitored, and were not. (

b) the authorizations to intercept communications were obtained by the affiant without full and frank disclosure of the practice of “putting away” calls contrary to the terms of the authorization. [ 21 ] On August 10, 2011, Knapczyk also filed an amended Charter notice seeking exclusion of all communications intercepted under WT1709, 1712 and 1713 that the Crown seeks to admit at trial under s 189(5) of the Code . In addition, he applied to cross-examine Sgt. Anderson on broader grounds, including the affiant’s alleged failure to disclose the role and potential use to be made of an informant.

That application was dismissed: R v Alcantara 2011 ABQB 719 . [ 22 ] On November 21, 2011, Knapczyk filed a further amended Charter notice seeking an order under s 24(2) of the Charter excluding from evidence all intercepted communications together with derivative evidence obtained in breach of his s 8 Charter rights on the basis that: (

a) the WT1709, WT1712 and WT1713 authorizations were not implemented by the police in a manner consistent with s 8 of the Charter .

(

b) the authorizations to intercept communications were obtained without full and frank disclosure, including regarding minimization conditions. (

c) the authorizations to intercept communications were obtained without investigative necessity and without full and frank disclosure regarding investigative necessity. (

d) the WT1712 and WT1713 authorizations were not authorized by law because the sections under which they were obtained are unconstitutional. (

e) to admit evidence obtained directly or indirectly from evidence ruled inadmissible as against a co-accused would render the trial of the accused unfair and in breach of ss 7 and 11 (

d) of the Charter . [ 23 ] Knapczyk’s grounds are: (

a) the elimination of the necessity requirement in ss 185(1.1) and 186(1.1) renders them unconstitutional; (

b) certain intercepted private communications subject to live monitor conditions in the authorizations were not live monitored for their duration; (

c) certain intercepted private communications subject to live monitor conditions were recorded for up to two minutes without being listened to by a monitor at any time; (

d) certain intercepted private communications were listened to and/or recorded in the absence of a target on the line contrary to the terms of the authorizations; (

e) certain intercepted private communications did not afford solicitor-client protections as the investigative monitors listened simultaneously with the monitors, including to sessions that were “put away;” as well as to the first two minutes of auto-minimized sessions; and sessions on automatic lines that a monitor had not listened to so as to classify as privileged or locked; (

f) failure to disclose the inability to live monitor, the use of the put-away, and the use of auto-minimization to the authorizing justice; and (

g) failure to consider the existence or potential use of a particular undercover informant, which negates investigative necessity, and failure to disclose this to the authorizing justice. [ 24 ] Knapczyk and Alcantara rely on each other’s applications and arguments. III. Issues [ 25 ] The issues in this application include:

A. Do the Applicants have standing to bring their ss 8 and 24(2) applications? B. Did the searches breach the s 8 Charter rights of the Applicants as a result of: 1. the wiretap authorizations being invalid due to the affiant’s failure to provide full and frank disclosure to the authorizing judge? 2. the private communications having been intercepted in an unreasonable manner? C. If s 8 Charter breaches did occur, should the impugned interceptions be excluded from evidence under s 24(2) of the Charter ? D. Do the Applicants have standing to bring their ss 7 and 11(

d) applications? E. Would admission against an accused of communications intercepted in breach of a co-accused’s s 8 Charter rights and excluded from evidence as against that co-accused breach the ss 7 and 11(

d) Charter rights of the accused to a fair trial? IV. Facts and Evidence A. Facts from the Abuse Decision [ 26 ] The parties agree that evidence from previous applications may be applied to this application. Certain facts agreed on or found in the Abuse Decision at paras 41 and 42 are relevant to this application. Those facts are set out below: ... 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. 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.” [ 27 ] The following conclusions which I reached in the Abuse Decision at paras 263, 279 and 299 are relevant to this application: In conclusion, the evidence shows that: 1.

There was a breach of the obligation on the PPSC and RCMP to make full and frank disclosure to the authorizing justice in the Project Koker investigation. The

interpretation placed on the term “live monitoring” by Edmonton PPSC and Special “I” when the authorizations in this case were obtained was a pragmatic one, although possible given the case law at the time. However, the PPSC agents and affiant did not advise the authorizing justice that staff shortages at Edmonton Special “I” meant that implementation based on

a strict or literal

interpretation of a live monitoring condition could not be observed and, therefore, it was proposed that the authorization not require live monitoring “on an ongoing basis.” The authorizing justice should have been so advised when the wiretap authorizations were obtained in Project Koker. Had this occurred, he would have had the opportunity to reflect on whether he wished to provide his imprimatur to the process proposed or otherwise modify the live monitoring condition to accord with the reality on the ground.

In the result, there was no judicial authority to implement the condition by putting away intercepted communications while still recording them. 2. There was a breach of the live monitoring condition in the Project Koker investigation. Of the calls under the 145 tabs that were subject to a live monitoring condition, there was an admitted breach of the live monitoring condition in respect to calls under 66 of the tabs. I have found a further breach of the live monitoring condition, as I have interpreted that term, in respect to calls under an additional six tabs. 3.

There was a systemic breach of the live monitoring condition after the Project Koker investigation. After the RCMP became aware of the put- away issue in 2008, Alberta Special “I,” particularly Calgary Special “I,” demonstrated a cavalier attitude or recklessness with respect to implementation of the live monitoring condition in wiretap authorizations. 4. In this trial, there was a failure by the RCMP to disclose the put-away issue to the Edmonton PPSC and the Defence in a timely fashion.

As I found in the Delay Decision, Edmonton Special “I” was aware of the put-away issue in June 2008, it was aware by July 2008 that the put-away feature had been used during Project Koker, and it should have advised the Edmonton PPSC and Defence of this by August 2008. The result of this late disclosure was a delay in these proceedings and resulting prejudice to the Applicants. . . .

It is my view that the conduct of the PPSC and RCMP in their failure to deal with the live monitoring condition in a clear, forthright, transparent way in the authorization phase of Project Koker; the breach by the RCMP of the live monitoring condition in the implementation phase of Project Koker; the RCMP’s continued use of the put-away feature after the legal issue came to light in Ontario; and the delay in disclosure of the put-away issue; in their cumulative effect, amount to conduct of a nature that tends to undermine society's expectations of fairness in the administration of justice.

In my view, the Applicants have proved, on a balance of probabilities, that s 7 has been violated. . . . I conclude that there has been abuse of process in breach of s 7 of the Charter . The failure of Edmonton PPSC and the RCMP to make full and frank disclosure in the authorization phase of the Koker investigation and the history of the approach to implementation of live monitoring conditions by the Edmonton and Calgary offices of Special "I" offend notions of fundamental justice.

However, the gravity of the breach does not warrant a stay of these very serious charges; this is not the clearest of cases that calls for the most drastic of remedies. Rather, in my view, a measured response commensurate with the nature of the breach is warranted. The interceptions in breach of the live monitoring condition will be excluded from evidence.

I reserve jurisdiction to grant any further remedy in conjunction with any remedy that might flow once the search and seizure application under s 8 of the Charter has been heard. [ 28 ] I found in the Abuse Decision at para 290 that calls had been intercepted and recorded on at least 72 occasions contrary to the live monitoring condition in the wiretap authorizations. Those calls were excluded from evidence. The Crown later advised that an additional two phone calls should have been included in that list, for a total of 74 calls.

The Crown further agreed that certain of those calls resulted in derivative evidence which should be excluded from evidence. B. Agreed Statement of Facts [ 29 ] The following facts have been agreed to by the parties on this application: Put away

2. There are a total of 51,733 intercepted communications (not including cell block interceptions), 38,061 of which are audio and the remainder are text messages. Of the 38,061 intercepted audio communications, 17,471 were on devices requiring live monitoring, and 1,670 were put away. Put away of non-target communications 3. Of the communications that were put away, 170 did not involve a primary target (principal known person). Non-minimized non-target communication 4.

There were 5,698 intercepted private communications on live lines (telephone lines requiring live monitoring) that did not involve a principal known person. Of the 5,698 intercepted communications, some were listened to for over 30 seconds, some for over 60 seconds, some for over 90 seconds, some for over 120 seconds, and at least one for over 150 seconds. Auto-minimization 5.

During Project Koker, when a monitor was logged in to a computer and had selected a live line (a line that was required to be live monitored) for monitoring purposes, but did not immediately pick up an incoming session (telephone call) on the live line, the session would be recorded even without being listened to by the monitor. If no monitor picked up and listened to the session within 120 seconds, the session would automatically be minimized. This automatic recording and minimization is called auto-minimization.

The recorded portion of the session could be accessed the same as sessions in which the monitor has listened to the session. 6. There are 1,561 auto-minimized communications in total. 1,085 involved targets and 476 involved communications with no targets on the line... 7. There are a total of 14 auto-minimized intercepted communications in the replacement 189(5) Notice sessions. Of the 14 auto- minimized intercepted communications... six were not excluded pursuant to the abuse of process motion...

The amount of time these calls were automatically recorded prior to the monitor listening to them was 1 second respectively. Neither Mr. Knapczyk nor Mr. Alcantara are alleged to be parties to these intercepted communications. 8. Of the 14 auto-minimized intercepted communications... eight were excluded pursuant to the abuse of process motion... Neither Mr. Knapczyk nor Mr. Alcantara are alleged to be parties to these intercepted communications. 9. The intercepted communications located at [four particular tabs] were auto-minimized.

These intercepted communications were identified in the original 189(5) notice, but do not appear in the replacement 189(5) notice. Mr. Knapczyk was alleged to be a party to the communications at [three of the tabs]. Mr. Alcantara was alleged to be a party to the intercepted communications located at [one of the tabs]. Pay phone interceptions 10. From November 3, 2005 to December 16, 2005, a pay phone with the telephone number... was subject to interception as a “resort to,” pursuant to paragraph 4E (Public Telephones) of WT1712... There were 566 sessions on this telephone number. Of the 566 sessions,

17 private communications were intercepted and recorded in whole or part. At least a portion, and sometimes the entirety, of the 17 communications were listened to by a monitor. Further, put-away, auto-minimization, minimization, and/or system minimization occurred in most of the 17 communications. The remaining sessions were DNR only. No target communications were intercepted from this pay phone. None of these intercepted communications were visually monitored. 11. None of the pay phone interceptions are contained in the s 189(5) Notice. Cell block interceptions 12.

Sessions were intercepted on four separate occasions of a principal known person in a cell block setting during the currency of WT 1712 and WT 1713: Mr. Flight (October 27, 2005...), Mr. Caines (November 10, 2005...), Mr. Yakimishyn (January 17, 2006...) and Mr. Alcantara (January 19, 2006...). Cpl. Ken Wilson monitored the interception of Mr. Flight’s communications using portable equipment. Sgt. Mark Anderson (Corporal at the time) monitored the interception of Mr. Caines’s communications using portable equipment. The Edmonton Police Service (EPS) civilian monitors monitored the interceptions of Mr.

Yakimishyn and Mr. Alcantara’s communications using the EPS monitoring equipment, which is similar to the equipment used by the R.C.M.P. Special I unit. Only one session history report has been disclosed. 13. Only one of the cell block interceptions is contained in the 189(5) notice... C. Crown Representations on the Voir Dire [ 30 ] In a letter dated December 6, 2011, the Crown advised that: 1.

Ron Reimer [one of the Crown agents] was not aware that the RCMP Special I were using the “put-away” process (i.e. listening to a live call until they identified a principle known person and then stop listening to the call but continuing to record it) prior to December 2009; 2. Ron Reimer was not aware that the RCMP Special I were using the auto-minimization process (i.e. recording live calls that a monitor had not yet begun listening to for up to 120 seconds at which point the call would automatically minimize) during Project Koker (pre-authorization or authorization phase); 3.

The RCMP Special I was aware at the time of Project Koker they were using the auto-minimization process; and 4. Sgt. Mark Anderson was not aware the RCMP Special I were using the auto-minimization process at the time of Project Koker (pre-authorization or authorization phase). [ 31 ] In a letter dated December 8, 2011, the Defence requested disclosure as to: 1. . . . whether Mr. Reimer had, in the past, been aware of the use of auto-minimization at RCMP Special I? The answer was that Mr.

Reimer was not aware that the RCMP Special I used auto-minimization prior to Project Koker. 2. . . . whether he [Ron Reimer] was of the belief, at the time of Project Koker, that auto-minimization was no longer being used at RCMP Special I?

The answer was that Mr. Reimer had not been aware the RCMP Special I had used auto-minimization prior to Koker. D. Testimony on Voir Dire 1. Cindy Hering [ 32 ] Ms. Hering has been an RCMP intercept monitor analyst for the past 20 years. In that role, she listens to and reports on court authorized intercepts. She worked as a civilian monitor on and was project co-ordinator for Project Koker. [ 33 ] Ms. Hering described how a monitor selects a line for monitoring.

She indicated that once the monitor logs onto the intercept system, the computer screen lists all of the phone numbers allocated to the monitor, grouped by project and targets, for interception - some are to be live monitored and some automatically monitored. As I understand it, the monitor selects all or a particular project, line or target to monitor for that shift, and then hits the “start monitoring” command.

If the monitor selects a particular project and there are a number of calls coming in at once, the system will send the call to an available monitor who also has selected that project. [ 34 ] In terms of lines requiring live monitoring, one of the duties of the monitors is to determine if a principal known person is on the line. How is that done? According to Ms. Hering, investigators may have met with the target and may be able to identify the person’s voice or may have a voice sample.

Most often, however, it is through self-identification by the individual during the call or when the parties to the call initially greet each other. Monitors put into the synopsis field for the session (one session was one intercepted communication) that the person had self-identified. [ 35 ] Ms. Hering advised that difficulties can arise in identifying a principal known person. The individual may not be on the phone a lot or the call may be short, so there is limited opportunity for the monitors to become familiar with his voice. Also, related persons may sound similar.

If a monitor is new and there are 20 principal known persons, the monitor may experience confusion. In addition, environmental factors may make it difficult to hear the person’s voice. [ 36 ] Ms. Hering said that it may take some time to determine whether a principal known person is on the line as it may be a while before someone actually speaks. For example, on commercial lines, the caller may be directed to press 3 for..., and then press 4 for..., before actually reaching the person with whom they wish to speak. Also, she said that monitors do not always come on board a project at the beginning.

If the monitor does not work full time, or does not work on a particular project very often, he or she may not be as quick with identity as others working regularly or exclusively on that project. [ 37 ] Ms. Hering was asked about the protocol in terms of solicitor communications. She said that the monitors review what the authorization spells out in relation to privileged call. She said that the monitors endeavor to become familiar with the names of the lawyers used by the targets. When a target makes a call to a lawyer’s office, the receptionist may identify the name of the firm.

Once it is determined that a call is privileged, the monitor stops listening to the call, the call is identified as privileged, and the audio is locked so no one can listen. As monitors come across lawyer’s names and telephone numbers, they may ask the system administrator to alarm the number. If a call comes in on that number, a starburst appears on the screen and an alarm tone alerts the monitor it may be a privileged call. The starburst alarm involves a flashing icon and audible, repetitive tone that a monitor cannot help but notice. She said that monitors do not rely solely on the alarm, however.

During Project Koker, they were told by technicians that there were problems with the alarm as sometimes the system did not pick up all of the digits of the number coming in or going out. [ 38 ] Aside from the alarm, Ms. Hering said there is a data resource area that might display a solicitor’s or firm name if the number previously has been programmed into it. [ 39 ] Ms. Hering said that it can take awhile to identify a solicitor communication as the content of such a call may sound more personal than professional and the parties may not identify themselves, so there is no indication a solicitor is on the line.

She said that monitors cannot use voice identification for these calls as they do not listen to the calls (beyond the time necessary to determine it is a solicitor communication) and they do not become familiar with the lawyers’ voices. She also said that a lawyer may have multiple phones, including the office phone(s), a personal cell phone or an unlisted number. There may be nothing initially to indicate the number belongs to a lawyer.

[ 40 ] Ms. Hering testified that on Project Koker, it was the practice that monitors listening to calls would type the word “OK” in the synopsis field for the session to let the investigators know the call was all right for them to listen to. If the call was identified as a solicitor communication, the monitor would not type “OK.” The investigators were not to listen to the call unless the monitor had typed “OK.” [ 41 ] For a call which the monitor believed was not solicitor-client privileged, the monitor would try to make notes while the call was occurring.

However, if there was a high volume of calls, the monitor would type “OK” and during a quiet time someone would go back and produce the content of the synopsis. Ms. Hering considered Project Koker to be a high volume file. [ 42 ] For privileged calls, the monitor would classify the call as “privileged” in the synopsis by selecting the term “privileged” from a drop down menu, and/or would lock the call by choosing “lock audio” from another drop down menu. The classification drop down menu option of “pertinent” was an investigator tool. Ms.

Hering said that if a monitor selected “pertinent,” it likely was through inadvertence. [ 43 ] In terms of pay phone interceptions, the monitors would obtain the instructions from the authorizations. The parameters for pay phone interceptions were very individual. Ms. Hering stated that monitors would not participate in the hookup and enabling of pay phone interceptions. A technician or system administrator would do so. [ 44 ] According to Ms.

Hering, at times during Project Koker, different individuals would take on the role of system administrator - enabling hook-ups and configuring lines in conjunction with a technician. She did not perform this role during that project. The monitor supervisor, Katherine Millar, did take on such duties. System administrators had more access to lines and dealt with the phone companies. [ 45 ] Once a pay phone was hooked up or enabled, it was in the system but no audio would be recorded until a monitor selected that line. When and whether they selected it depended on the monitoring instructions.

The monitoring instructions dealt with specifies lines and monitoring procedures relating to that line. For pay phones, the instructions might say that someone would contact the monitor room once there was live visual surveillance of the target using the phone and ask that live monitoring be initiated. The monitor would then select the number and start monitoring. Until the monitor received that instruction, he or she would not select that number.

When the monitor was asked to initiate monitoring, there would be a log noting the date and time when the investigator requested live monitoring and asked that it stop. [ 46 ] Ms. Hering said that a monitor might inadvertently select a line that was not to be monitored. She indicated that a monitor might select an entire file and if there were a large number of lines for that file, he or she might select “all” and then deselect those that did not apply. In the short period of time before deselecting, the monitor might have selected a line that was not to be monitored.

Also, if a call was minimized, the screen would list calls occurring but not recording. If the monitor accidentally clicked on a number, it would start recording. In put-away calls, the monitor would listen intermittently to check whether the target remained on the line. The monitor would bring the call up to listen to it. Ms. Hering testified that she had never purposely selected a pay phone to monitor contrary to instructions. She noted that all monitors have user identifications. These appear in the narrative logs and session history reports. [ 47 ] Ms.

Hering was asked by counsel for Knapczyk whether the system would generate a session history report recording the dialed number every time an intercepted pay phone was used. She answered that she was not certain for Project Koker as she was not monitoring those lines. However, on other files, the dialed number would be recorded. She said that if the monitor selected all lines for a project and a pay phone was being monitored, the pay phone would come up in rotation like other lines. When a monitor started to listen in, the system would start to record the call.

She said it might take a monitor some time to realize the line was a pay phone. Typically, it would then be minimized (no longer recording audio). Another monitor could inadvertently go back into the call, however. Whether or not the call would be available to the investigative monitors would depend on the privileges or rights which the system administrator had accorded to them. One of the settings would have allowed investigative monitors to listen in. If the call was minimized, an investigator could pick it up if the administrator set that up for them. [ 48 ] Ms.

Hering confirmed that the audio was locked when a monitor determined a call was a solicitor communication. She was directed to the narrative log and session history report for a text message (SMS call) received on the line of a named solicitor. Both documents showed that the interception was classified as “privileged” but the content of the text message, which was generated

automatically by the system, is shown in the line sheet. The synopsis, which was the portion of the line sheet document Ms. Hering referred to as the narrative log, does not include content of the text. She indicated that she was not certain whether the CenCis (Central Communications Intercept System) version used during Project Koker automatically locked a session when it was classified as privileged. [ 49 ] In cross-examination, Ms. Hering said that it was possible that in January 2005, prior to Project Koker, there was some discussion in the Special I office about auto-minimization.

She explained that auto-minimization meant that if a monitor logged in and selected a line requiring live monitoring and another call came in on another such line, the second session would be recorded for a preset period of time and then would be minimized if the monitor had not started to listen to the call by then. The system parameters typically allowed for a maximum period of time of 0 to 120 seconds, to be set by the system administrator. [ 50 ] Ms. Hering indicated that the “previous project” referred to in Ms.

Blair’s January 5, 2005 memorandum (mentioned in the Abuse Decision at para 27) was Project Imminent. The memo says that there were errors on that project where calls on live lines were auto-minimized “after the initial two minutes.” Ms. Hering said that the reports at that time were misread and the number of times where that happened on Project Imminent was very acceptable - four calls only. She agreed that between Project Imminent and Project Koker, no change in procedure was made. [ 51 ] In response to a question from the Court, Ms.

Hering stated that she was not certain if the version of CenCis being used during Project Koker had a call display on the screen for the associate number (i.e. the number being called). She said that if the associate number had been loaded into the system beforehand, it would have shown up. Otherwise, the call display would show the number and not the affiliated name. 2. Lorraine Morrison [ 52 ] Ms. Morrison has been with the RCMP out of K Division since 1994. She has been with Special I since 2003 as a civilian member technologist.

She assists in configuring CenCis II, and assisted in creating the session history reports for Project Koker. [ 53 ] She too said that she refers to the synopsis as the narrative log. Other portions of the sheet document include investigator comments, SMS content and the header details with session information. If someone requests the narrative log for a particular session, the session can be pulled up on the computer system. The different fields have to be selected. [ 54 ] Ms. Morrison was directed to the line sheet and session history report for the same session to which Ms. Hering was referred.

She said that if the session history report shows the classification as “privileged,” it means the monitor selected that classification, after which only the system administrator could access the content of the call. An investigative monitor could not. She said there was no difference between classifying a call as “privileged” and locking it in terms of who could then access the content. She said that with the text messaging system (SMS pager), the system automatically would type in the message.

If the interception was classified as privileged, the content could only be accessed if the system administrator entered his or her user name and password. [ 55 ] Ms. Morrison clarified that if a monitor was listening to a line and after one minute classified it as privileged, only the system administrator could access the call after it ended. She was not certain whether the software used during Project Koker would allow someone else to access the call before it ended. Marking the call as privileged at the one minute mark would not minimize the audio or stop the recording.

It would only be when the call ended that the audio would be locked. If the monitor minimized it, there would be no further recording. If the put-away button was selected, that would stop the audio, but not the recording of the call. [ 56 ] In terms of the intercept to which Ms. Morrison’s attention was directed, she noted that the synopsis was edited by an investigator 10 minutes after the text message was received, before it was classified as privileged. As a result, the investigator would have had access at that time to the message content. She did not know why there was a delay in classifying it. [ 57 ] Ms.

Morrison’s attention also was drawn to an intercepted call that was made to a named solicitor’s number about two minutes before the text message was sent. The comments field was edited after the session content was locked. Ms. Morrison explained that the investigator would still have had access to the document to edit comments, although there would be no access to the audio content. While the audio content was locked in that particular case, the session was not classified as privileged. Ms.

Morrison did not know why the audio would have been locked for that session, although she agreed it may have been because the monitor thought it

might be a privileged call. [ 58 ] Counsel suggested that the investigator had access to the content of the text message before it was classified as privileged and would have known the associate number belonged to a named solicitor as a result of the immediately preceding session (telephone call). [ 59 ] Ms. Morrison said that when a session was classified as privileged, the system administrator would be prompted to use his or her password in order to gain access.

She said that if the session history report shows audio content playback, it would indicate this was done by someone with system administrator authorization, or possibly that an attempt was made by someone else to access the audio. She said that if the content was locked or a session was classified as privileged in terms of a text message, the content would be available only through the system administrator. [ 60 ] Ms. Morrison indicated that investigators had access to the synopsis portion of the narrative logs, but could not edit it.

The other call details would be available to the investigator, such as the associate number to which the text was sent. [ 61 ] Ms. Morrison did not recall any discussion or memo in the office in early 2005 concerning overuse of auto-minimization in a previous project. She confirmed she had the ability to adjust the time for auto-minimization to less than 120 seconds, but said that during Project Koker it was set at 120 seconds. She testified that they have not used auto-minimization since about June 2010. 3.

Sergeant Mark Anderson [ 62 ] Sergeant Anderson (Corporal Anderson at the time of Project Koker) has been with the RCMP since July 1996. He participated in Project Koker as the primary investigator and affiant of the affidavits in support of the wiretap authorizations. He also listened to intercepted calls. [ 63 ] He testified that the investigative monitors were from the Edmonton Drug

Section (EDS). He said the protocol was that investigative monitors would place their regimental number in the comments field following their comment. All non-privileged calls were reviewed by the investigative monitors whether they were pertinent or not. [ 64 ] He said that, in theory, investigative monitors should not have reviewed solicitor communications. Civilian monitors would type in “OK” to alert EDS they could monitor the call at the same time.

If EDS went in after the fact and realized a call was solicitor- client, EDS would cease listening and notify Special I and others if it was a phone number that had not previously been identified as solicitor-client. [ 65 ] Sgt. Anderson said that with every intercept, an associate phone number popped up on the system. He said that if an investigative monitor listened to all of a solicitor communication, it was because he did not realize it was such.

The investigative monitor may have listened and then looked up the associate number, found out who it belonged to and then alerted the system it was a solicitor’s phone number. [ 66 ] He said that the practice, if a call turned out to be a solicitor communication, was to get out of the call, alert Special I and not to use any of the communication in the ITO as it would be privileged. [ 67 ] Sgt. Anderson was directed to a particular call.

He confirmed the following comments made in the line sheet were entered by him: Upon reviewing this communication, I realized that the RO of the number was [named solicitor] who is [named client]’s lawyer. I also know [named solicitor] is a lawyer at [named solicitor #2]’s law firm, [named solicitor #2's law firm]. [Edited here to protect possible privileged information.]

[ 68 ] He advised the monitors and Special I the call should be marked as privileged. He then commented: From listening to the call, I did note that the male BTW, believed to be [named solicitor] was looking for [named client’s] phone number. [named solicitor #2 ]’s firm may be representing [named client] at his upcoming manslaughter trial?) [Edited here to protect possible privileged information.] [ 69 ] Sgt. Anderson explained that at some point when reviewing the call it came to his attention that the associate number that came up was the named solicitor’s.

He said that at the time of this call, WT1709 was in its infancy and he may have listened to the whole of the call before looking up the associate number and doing a background check to determine the registered owner of the number. [ 70 ] During cross-examination, he said that the investigators tried to review the calls in close to “real time.” He would have reviewed the session just referred to after the call had occurred. At some point, he realized it was a solicitor-client call.

He repeated that, at the time, they had only been intercepting for 11 days and this was the first privileged communication intercepted. He was not familiar with the solicitor’s voice. He did not recall if he listened to a portion or all of the call. He was aware that the client had been charged with being an accessory after the fact to manslaughter in another matter. He knew that the solicitor was with a particular firm and he thought that firm might be representing the client for manslaughter.

He agreed that he could not erase the information he heard from the solicitor-client call from his mind. [ 71 ] In the narrative log of a call made five days later, Sgt. Anderson made the comment: Male is [named client]. Btb discussing his upcoming Manslaughter trial. “[first name of named solicitor]” is btb [named solicitor] from [named law firm]. [Named client] claiming Prosecution reneging on plea bargain arrangement... [Edited here to protect possible privileged information.] The analysis in this narrative log hearkened back to the solicitor communication referred to above and information conveyed during it.

Alcantara was said to be a participant in this call. [ 72 ] Sgt. Anderson was uncertain if he had realized as a result of speaking with the EPS about the investigation of the named client or from the earlier solicitor communication that the civilian monitor had incorrectly identified the named solicitor in the synopsis. E. Other Evidence on Voir Dire [ 73 ] Interception was authorized under WT1709 of three telephone lines and a vehicle probe.

Two of the telephone lines (cell phone and land line) could be monitored automatically while the remaining one (club house) required live monitoring, as did the vehicle probe. Alcantara was the target of all of those interceptions. [ 74 ] Interception was authorized under WT1712 of 21 telephone lines and one vehicle probe as set out below: Target Description Monitoring Conditions Multiple Clubhouse Live audio Alcantara Cell phone Auto Alcantara Land line Auto Alcantara Vehicle probe Live audio

Knapczyk Cell phone Auto Knapczyk Land line Auto Yakimishyn Cell phone Auto Yakimishyn Land line Auto Yakimishyn Business Live audio Yakimishyn Business Live audio Yakimishyn Business Live audio Correia Cell phone Auto Caines Cell phone Auto Caines Land line Auto Caines Cell phone Live audio Caines Cell phone Live audio Caines Pay phone Live visual & audio Caines Cell phone Live audio Caines Cell phone Live audio Flight Cell phone Auto Flight Cell phone Live audio Flight Land line Auto [ 75 ] Interception was authorized under WT1713 of 14 telephone lines and one vehicle probe as set out below: Target Description Monitoring Conditions Any Clubhouse Live audio Alcantara Cell phone Auto Alcantara Land line Auto Alcantara Vehicle probe Live audio Alcantara Cell phone Live audio Yakimishyn Cell phone Auto Yakimishyn Land Line Auto Yakimishyn Business Live audio Yakimishyn Business Live audio Yakimishyn Business Live audio Critch Cell phone Auto Critch Land line Auto Critch Cell phone Live audio Critch Cell phone Live audio

Critch Cell phone Live audio V. Relevant Charter Provisions [ 76 ] Sections 7, 8, 11(

d) and 24 of the Charter state that: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 8. Everyone has the right to be secure against unreasonable search or seizure. 11. Any person charged with an offence has the right . . . (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. VI. The Applicants’ Standing under

Section 8 A. Alcantara’s Arguments [ 77 ] Alcantara and Knapczyk rely on their own and each other’s arguments. [ 78 ] There are three groupings of private communications that Alcantara contends were intercepted in breach of his Charter rights: 1. Those listed in Appendix A to his amended Charter notice were intercepted on his cellular telephone. He agrees that he was “...either the originator or recipient of all these interceptions” (171 communications). 2. Those listed in Appendix B. These were interceptions of a co-accused in which he allegedly was mentioned but to which he was not a party (five communications, only one of which is not also listed in Appendix C).

3. Those listed in Appendix C. These were interceptions of a private communication of a co-accused which were subject to use ofthe put-away feature (77 communications). [79] All but three of the private communications listed in Appendix C to Alcantara’s amended Charter notice have been excludedfrom evidence as a result of the Abuse Decision (those three apparently were fully monitored). Alcantara submits that he has standing tochallenge admission of the one Appendix B interception which has not yet been excluded.

That interception allegedly was a privatecommunication of Caines in which reference was made to Alcantara.

He relies for this argument on R v Montoute (1991), (AB CA), 113 AR 95, 62 CCC (3d) 481 (CA), in which Harradence JA stated at CCC 506-507: If a co-conspirator’s Charter rights have been breached in obtaining his declaration furthering the conspiratorial objectives to the extentthat its admission would bring the administration of justice into disrepute, it would drag the administration of justice even further anddeeper into the mire of disrepute to give “judicial condonation to unacceptable conduct by investigative agencies” by the admission ofthat evidence on the pretext that s. 24 (2) was not available to a co-conspirator as his Charter rights had not been breached. [80] Alcantara submits that the decision in that case was not overruled by R v Edwards, (SCC), [1996] 1 SCR128.

He also relies on the following remarks of Charron J in R v Shayesteh (1996), (ON CA), 31 OR (3d) 161, 111CCC (3d) 225 at 238-239 (CA): With respect to the interception of the appellant's own calls, no issue is raised as to his standing to assert a violation of his s. 8 Charterrights. The Crown argues, however, that the appellant has no standing to assert a violation of Daryoosh's rights under these circumstancesand he therefore has no right to demand excision of the information derived from any such violation, if it is found to exist.

The Crownstates that the appellant only has standing to assert a violation of his own Charter rights and can therefore only demand excision ofinformation derived from interceptions which constitute such a violation of his rights. In this regard, reliance is placed on R. v. Edwards(1996), (SCC), 192 N.R. 81 (S.C.C.) and R. v. Pugliese (1992), (ON CA), 71 C.C.C. (3d) 295 (Ont.C.A.). In my view, the cases of Edwards and Pugliese can easily be distinguished, and this argument must fail in this case.

The appellants inboth Edwards and Pugliese were unable to establish that they had an expectation of privacy with respect to the impugned search andconsequently they could not argue that their rights had been violated. In this case however, since the appellant's own telephone calls wereintercepted as a result of the targeting of Daryoosh in the second and third authorizations, he clearly had an expectation of privacy withrespect to those communications. This expectation of privacy is sufficient to give him standing to dispute the legality of thoseinterceptions.

The fact that a consideration of the legality of those interceptions in effect entails a consideration of Daryoosh’s s. 8 rights,because the statutory requirements are identical to the constitutional requirements of s. 8, does not affect the appellant’s standing to bringhis application. [81] Alcantara advocates that the following

interpretation of Shayesteh by Sulyma J in R v Mah, 2001 ABQB 394, 294 AR 96 atpara 32 be adopted by this Court: Then, how far does the effect of Edwards go? By the decision of the British Columbia Court of Appeal in Cheung (supra), Montoute iscompletely overruled and a non-communicant co-conspirator has no rights of challenge. This position is qualified by the Ontario andQuebec Courts of Appeal in Shayesteh and Rendon. In my view, the position of the Ontario Court of Appeal and the most recentaffirmation of that position by the Quebec Court of Appeal are the correct statements of law.

I conclude that the rights of any individualaccused in this case to challenge authorizations beyond those in which he or she is a known target or interceptions of communications inwhich he or she is a party are as outlined in Shayesteh and are as follows: If the interception of a co-accused's communication, effected pursuant to an authorization implicate an accused because he was either aparty to or referred to during the course of some of the intercepted calls, then he has the right to challenge the authorization and thecommunication. [Emphasis added.] The emphasized passage is not a quote from Shayesteh but rather is Sulyma J’s view of standing where a party is simply referred to in anintercepted communication.

B. Knapczyk’s Arguments

[82] Knapczyk argues that he had a reasonable expectation of privacy in the intercepted private communications to which he was aparty, such calls were intercepted under each of the authorizations, and therefore he has standing to challenge each of the authorizations.Knapczyk also relies on Shayesteh. [83] Knapczyk adopts the arguments of Alcantara that he has standing to challenge the admissibility against him of calls that wereunlawfully obtained to which his alleged co- conspirator was a party. C.

Crown’s Arguments [84] The Crown argues that the s 8 Charter right is a personal right and an accused’s right to challenge the legality of a search orseizure depends on the accused establishing that his personal right to privacy was violated by the search or seizure.

It asserts that anaccused can only challenge the admissibility of evidence if he establishes that he had a privacy interest in the evidence. [85] The Crown acknowledges that the result of this principle may be that in a trial with more than one accused, evidence may beadmitted against one but not another, but submits that this result was endorsed in R v Belnavis, (SCC), [1997] 3 SCR341. [86] The Crown concedes that Alcantara has standing in terms of his Appendix A intercepted communications, including onelisted in the Revised Notice of Intention that was intercepted on a line requiring live monitoring and the others which were interceptedon automatic lines.

The Crown notes that the one interception on the line requiring live monitoring also was intercepted on an automaticline. [87] All but three of the calls listed in Alcantara’s Appendix C have been excluded as a result of the Abuse Decision (those threeapparently were fully monitored). [88] The Crown concedes that Knapczyk has standing to challenge the authorizations under which calls to which he was a partywere intercepted, that he was a party to calls intercepted under each authorization, and therefore he has standing to challenge all of theauthorizations but only in terms of the calls to which he was a party. [89] The Crown argues that Alcantara does not have a privacy interest in the calls listed in Appendix B to his revised Charternotice so as to give him s 8 Charter standing.

It takes the same position with respect to Knapczyk in terms of calls to which he was not aparty but in which he may have been mentioned. [90] The Crown submits that simply being referred to in an intercepted private communication is not sufficient to give an accusedstanding to challenge admissibility of the communication. It argues that having an expectation of privacy in a communication involves adesire not to have the private communications shared publicly.

Being referred to does not demonstrate anything about whether anaccused formed a reasonable expectation that private communication would be shared publicly or otherwise. The Crown relies on R vLam, 2004 ABQB 289 at para 31, 355 AR 355; R v Trang, 2001 ABQB 857 at para 22; and Edwards.

The Crown contends thatShayesteh does not assist the Applicants, since it confirms only that the person whose calls are intercepted has standing to dispute thelegality of the interception. [91] The Crown contends that Shayesteh and R v Ansari: R v Ahmad, 2010 ONSC 1316, 224 CRR (2d) 286 addressed the scopeof an accused’s challenge to the validity of a wiretap authorization that authorized interception of private communications to which hewas a party.

It says Shayesteh expanded the scope of the challenge by allowing the accused to rely on breaches of a third party co-conspirator’s s 8 Charter rights to invalidate the wiretap authorization. However, to the extent an accused is successful in challenging thewiretap authorization, only those private communications to which he was a party will be excluded. It says Ansari followed suit. TheCrown cites Lam as support for its

interpretation of Shayesteh. [92] The Crown maintains that the decision in Montoute relating to a co-conspirators’ exception to the standing requirement

implicitly was overruled by Edwards, as recognized in R v Rendon (1999), 140 CCC (3d) 12 at para 45 (Que CA), aff’d by the SCC in2001 SCC 34, [2001] 1 SCR 997 on a different basis; R v Cheung (1997), (BC CA), 119 CCC (3d) 507 at para 65(BCCA), leave to appeal den’d [1997] SCCA No 596; Mah at para 31; and R v Hana, 2004 SKQB 209 at para 6, 248 Sask R 192. [93] The Crown argues that the principle in Edwards that an individual must have a personal privacy interest in a search tochallenge its validity does not countenance the notion that there is a co-conspirator’s exception to that principle.

It contends that notionwas rejected by Braidwood JA in Cheung, who stated at paras 68-71: I do not see how the added ingredient of conspiracy or agency can imbue another person with vicarious personal rights. The substantiveCharter rights, including the s. 8 privacy right, are personal rights available only to the person whose particular liberty interest is beingviolated.

Section 24 of the Charter is a remedial

section which may only be relied upon by one whose substantive individual right hasbeen violated. In Constitutional Law of Canada, Peter Hogg states that: Standing to apply for a remedy under s. 24(1) is granted to "anyone" whose Charter rights "have been infringed or denied". This imposesstricter requirements of standing than are applicable to many remedies under the general law. . . Section 24(1) contemplates that it is theapplicant's own rights that have been infringed or denied. (Peter W.

Hogg, Constitutional Law of Canada, 3rd ed. (supplemented) (Toronto: Carswell, 1996) at 37-14) Hogg cites Edwards, supra, as an authority for this. A Charter remedy cannot be claimed until a Charter breach has occurred. In thecase at bar, the appellant's privacy rights were not infringed by the interceptions made under Authorization P.50/90.

Thus, he has nostanding to object to the admissibility of the evidence under s. 24(2). [94] The Crown acknowledges that in a trial with more than one co-accused, the principle that a Charter right is inherentlypersonal may result in evidence being admitted against one co-accused but not against the other where only one co-accused has a privacyinterest in the search or seizure.

The Crown argues that this result was acknowledged and endorsed by the Supreme Court of Canada inBelnavis. [95] The Crown also relies on the following passage by the authors of Wiretapping and Other Electronic Surveillance: Law andProcedure (Toronto: Canada Law Book, 2000) at 8-60.5: Given the comments in Edwards that in order to establish a right to a s. 8 Charter challenge a personal right must have been infringed, itis difficult to see how an accused can rely, simply by virtue of his or her status as an alleged co-conspirator, on a breach of a third party’srights to launch a Charter challenge.

Moreover, since the target theory of standing was also rejected in Edwards, the tendering of evidence flowing from a breach of a thirdparty’s Charter rights should not provide any basis for a Charter challenge. Furthermore, the apparent unfairness of excluding evidenceagainst one person but not the co-accused was contemplated by Edwards. In R. v. Belnavais, the Supreme Court held that while the driver of a car had standing to launch a Charter challenge, the passenger didnot. Thus co-accused may have different Charter rights in respect of the same evidence.

The reconciliation of these conflictingarguments for and against the rights of co-conspirators must await a future case. [96] The Crown says that subsequent jurisprudence in Alberta affirms that the Edwards principle of standing applies to wiretapauthorizations: Mah at para 31; Trang at para 14; Lam at para 12. The Crown refers to the American jurisprudence which it sayssimilarly rejects a co- conspirators exception to the standing rule: USA v Padilla (1993) 508 US 77 at pp 5-6 (SC). [97] The Crown argues there is no jurisprudence to support such an exception, except Montoute, which according to it has been

[97] The Crown argues there is no jurisprudence to support such an exception, except Montoute, which according to it has beenoverruled by Edwards. It submits that the decision in R v Sandhu (1993), (BC CA), 28 BCAC 203, 82 CCC (3d) 236on the issue was obiter dictum. Sandhu relied exclusively on Montoute and, therefore, it too implicitly was overruled by Edwards.Further, the Crown says Lefever Prov Ct J’s logic in R v Tran, 2003 ABPC 140, [2004] 3 WWR 752 on the issue was faulty and itshould not be followed.

It argues it would be illogical if Charter rights hinge on whether or not a third party is charged. [98] In Ansari, Dawson J found that the live monitoring provisions were aimed at protecting the privacy rights of unnamed thirdparties who were not communicating with a principle known person, and the extent of the invasion of privacy of third parties isconstitutionally relevant to whether there has been an unreasonable search and seizure.

However, the Crown says that Dawson J basedthe applicant’s standing to raise s 8 issues on the police misinterpretation of restrictive terms of general application to “...the very meansof interception that capture the applicant’s communications ...”. [99] The Crown submits that neither R v Thompson, (SCC), [1990] 2 SCR 1111 at p 272, nor R v Durrette (SCC), [1994] 1 SCR 469, deal with this standing issue. [100] The Crown argues that the jurisprudence refutes the Applicants’ position that the law of agency, which is relied on in part bythe co-conspirator’s exception to the hearsay rule, supports a co-conspirator’s exception to standing.

It says the law of agency and the lawof standing are separate and distinct areas of law. The law of agency deals with pre-conditions to the admissibility of evidence while thelaw of standing deals with the application of a protective Charter right. D. Decision on Standing under Sections 8 [101] The Applicants must have standing in order to challenge the admissibility of evidence pursuant to s 24(2) of the Charter. [102] In Edwards at para 45, the Supreme Court of Canada set out the following principles, among others, governing who hasstanding to bring a s 24(2) Charter application based on a s 8 breach: 1.

A claim for relief under s 24(2) can only be made by the person whose Charter rights have been infringed. 2. Like all Charter rights, s 8 is a personal right. It protects people and not places. 3.

The right to challenge the legality of a search depends on the accused establishing that his personal rights to privacy have beenviolated. [103] In Wiretapping and Other Electronic Surveillance, Law and Procedure at 8-58, the authors state: In a simple wiretap case where the accused is named in the order and interceptions involving the accused are to be led in evidence, it isobvious that the accused has a direct interest in the basis for the order. Consequently, there could not be any doubt that under Edwardstest, the accused would have standing to contest the validity of the order.

Even if the accused is not named in the order but interceptionswere made, there could not be any doubt that the accused has a sufficient privacy interest to permit an attack on the order. [104] Based on Edwards, each of the Applicants has standing to seek exclusion of intercepted communications listed in the RevisedNotice of Intention to which he was a party and which he claims were intercepted in breach of his s 8 rights.

This ruling would apply tothe communications listed in Appendix A to Alcantara’s Charter notice. [105] All of the communications intercepted on lines requiring live monitoring and on which the put-away feature was employedbefore the end of the conversation, including those listed in Appendix C to Alcantara’s revised Charter notice, already have beenexcluded from admission into evidence as a remedy under the Abuse Decision (Appendix C contains 77 communications; 72 calls were

excluded in the Abuse Decision, five were not excluded because they were put away after the communication had ended. The 72 became 74 by Crown concession). [ 106 ] In my decision on whether Alcantara was entitled to withdraw his guilty plea after the Crown’s late disclosure of the put-away issue ( R v Alcantara , 2010 ABQB 616 ), I discussed the question of his standing to challenge the admissibility of evidence derived from intercepted communications to which he was not a party but that arguably were obtained in violation of the rights of an alleged co- conspirator.

After referring to Montoute and the commentary quoted above from Wiretapping and Other Electronic Surveillance, Law and Procedure at 8-60 to 8-61, I considered the decision in Lam . Burrows J noted at para 12 of that case that the Supreme Court of Canada in Edwards did not appear to have considered Montoute . However, given that LaForest J’s dissent adopted the same approach taken by the court in Montoute , it was fair to say that Edwards implicitly had overruled Montoute .

Burrows J also pointed out in Lam that while the Supreme Court of Canada had not yet applied Edwards in the context of a wiretap or conspiracy case, the Courts of Appeal of Ontario, British Columbia, and Quebec had done so in Shayesteh , Cheung , and Rendon respectively. [ 107 ] In Shayesteh , the police obtained four wiretap authorizations. The appellant was a party to or was mentioned in calls intercepted under the second authorization, although he was not a target at that time. Information was conveyed which supported the conclusion that the appellant was involved in drug activity.

That information was used to justify targeting the appellant in the third and fourth authorizations. The appellant sought standing to challenge admission of calls to which he was a party that had been intercepted under the fourth authorization.

He argued that the searches under the second and third authorizations had been illegal as there had been material non-disclosure to the judge who granted the second authorization, there had been no objective basis set out in the affidavit in support of that authorization for concluding that there were reasonable and probable grounds to believe the interception of the communications of the target of that authorization would assist the investigation, and the affiant had lacked a subjective belief in the required grounds.

The appellant submitted that if the information obtained as a result of the second authorization was excised from the affidavits in support of the third and fourth authorizations, there would have been no reasonable and probable grounds to target him. [ 108 ] The Crown in that case argued that the appellant had no standing to assert a violation of the rights of the target of the second authorization and, therefore, he had no right to demand excision of the information derived from any such violation. [ 109 ] Charron JA held at para 40 of Shayesteh that since the appellant's own telephone calls had been intercepted “as a result of the targeting of Daryoosh in the second and third authorizations,” he had an expectation of privacy with respect to those communications which was sufficient to give him standing to dispute the legality of those interceptions.

She added that “a consideration of the legality of these interceptions in effect entails a consideration of Daryoosh's s. 8 rights, because the statutory requirements are identical to the constitutional requirements of s. 8,” but this did not affect the appellant's standing to bring his application. [ 110 ] Two competing views on Shayesteh were identified by Burrows J in Lam at paras 20-21 : By the more narrow

interpretation the passage means that where an accused has a reasonable expectation of privacy in a communication he has standing to challenge the authorization of the interception of the communication. In mounting that challenge he is not limited to violations of his own s. 8 rights. He may also rely on the violations of the s. 8 rights of the ot

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