R v Alcantara, 2012 ABQB 354

Court of Queen ’ s Bench of Alberta Citation: R v Alcantara, 2012 ABQB 354 Date: 20120525 Docket: 070060157Q1 Registry: Edmonton Between: Her Majesty the Queen - and - John Reginald Alcantara and Alan Peter Knapczyk Accused _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice S.J. Greckol Addendum to Search and Seizure decision _______________________________________________________ I.

Introduction [ 1 ] On January 13, 2012, I issued a decision on the Accused’s s 8 challenges to the admissibility of wiretap evidence in this case ( R v Alcantara , 2012 ABQB 31 (“ Search and Seizure Decision ”)). When proceedings resumed on January 16, 2012, Crown counsel pointed out that I had not expressly dealt with the impact on the Search and Seizure Decision of my previous finding in the Accused’s abuse of process applications that the police had failed to make full and frank disclosure to the judge who authorized the wiretap interceptions ( R v Caines , 2011 ABQB 692 (“ Abuse Decision ”)).

While the issue of non-disclosure to the authorizing judge was dealt with as an aspect of the Abuse Decision , that issue also was brought forward and included in Defence arguments on the search and seizure motion. [ 2 ] In the Search and Seizure Decision at para 390, I reserved jurisdiction to deal with “...any issue that may arise from these Reasons.”

[ 3 ] All counsel are agreed, as am I, that I have jurisdiction to answer the question they contend is outstanding and that I am not functus officio until after a formal judgment has been issued, relying on R v Lawrence , 2004 ABCA 13 , 346 AR 186; R v Pinchak , 2010 ABQB 747 , 504 AR 373; and R v Steeves , 2011 NBCA 88 , 379 NBR (2d) 222. II. Issues [ 4 ] The issue to be dealt with in this decision is the impact on the Search and Seizure Decision of my finding in the Abuse Decision that there was a failure on the part of the affiant and PPSC to make full and frank disclosure to the authorizing judge. III.

Background [ 5 ] As part of the Project Koker investigation, the RCMP obtained five authorizations to intercept private communications. Sergeant Mark Anderson of the RCMP (then a corporal), the lead investigator, swore the affidavits in support of all five of the wiretap authorizations.

All of the authorizations required live monitoring of certain communications. [ 6 ] In the search and seizure applications brought by the Accused, the parties agreed there were a total of 51,733 intercepted communications (not including cell block interceptions), and that 38,061 of those were audio communications, with the remainder being text messages. Of the 38,061 intercepted audio communications, 17,471 were on devices requiring live monitoring.

Of those, 1,670 were put away. [ 7 ] The Crown provided the Accused with a revised notice pursuant to s 189(5) of the Criminal Code that it intended to introduce into evidence intercepted communications included under 451 tabs, some of which contained more than one private communication. There were private communications listed under 145 tabs in the replacement notice that occurred on telephone lines with a live audio monitoring requirement. Private communications under 122 of those 145 tabs actually required live monitoring. The others were text messages. Mr.

Knapczyk is alleged to have been a party to three of the private communications requiring live monitoring and Mr. Alcantara is alleged to have been a party to one of them.

Those four calls were not put away. [ 8 ] In the Abuse Decision at para 218, I accepted that the term “live monitoring” means listening to and monitoring the intercepted communications as and when they are being made, without interruption. [ 9 ] At para 225 of the Abuse Decision , I concluded that: ... there was an obligation on Edmonton PPSC and/or the RCMP to advise the authorizing justice that there was a staffing concern at Special "I" such that live monitoring could only be implemented by identification of the target, followed by intermittent monitoring while the call was being recorded.

It was incumbent on Edmonton PPSC and/or the RCMP to advise that, as a result of the staff shortages, they were asking for a live monitoring condition that did not require live monitoring "on an ongoing basis." [ 10 ] At para 230 of the Abuse Decision , I observed that: “... had the application for authorization included the adjectives "sporadically" or "intermittently" to describe the live monitoring required, the implementation process that was adopted likely would have been authorized.” [ 11 ] At para 232, I found that there was no judicial authority to implement the live monitoring condition in any way other than by listening in to the intercepted communications as they were occurring.

[ 12 ] At para 263, I determined that: 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. [ 13 ] While I was not of the view that this breach would prejudice the fair trial interests of the Accused, I did conclude at para 279 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. [ 14 ] I found at para 290 of the Abuse Decision that calls had been intercepted, put away and recorded on at least 72 occasions contrary to the live monitoring condition in the wiretap authorizations. Those calls were excluded from evidence (para 299). 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. [ 15 ] The ss 7, 8 and 11(

d) applications of the Accused were then heard and decided. As I described in my Search and Seizure Decision at paras 4-5: The two accused ... 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, [they submit that] 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.

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. [ 16 ] The Accused maintained that their s 8 Charter rights were breached as the wiretaps were implemented pursuant to wiretap authorizations based on affidavit evidence that was not compliant with the obligation to make full and frank disclosure to the authorizing judge.

The arguments made by the Accused (both of whom joined in that submission) on this point were summarized at paras 137-153 of the Search and Seizure Decision . The Crown’s arguments were outlined at paras 186-203. [ 17 ] At para 231 of the Search and Seizure Decision , I noted: There was a great deal of evidence led during the Abuse motion concerning the Crown's

interpretation of the live monitoring condition and as to the level of knowledge about use of the put-away feature in the RCMP Special I Ottawa and Edmonton, as well as at PPSC Ottawa and Edmonton. Based on that evidence, I concluded in the Abuse Decision (para 263, quoted here at para 27) that there was a breach of the obligation on the PPSC and RCMP to make full and frank disclosure to the authorizing judge.

[ 18 ] Despite my finding that there had been a lack of full and frank disclosure, I concluded at para 287 of the Search and Seizure Decision that the searches undertaken pursuant to WT1709, WT1712 and WT1713 were authorized. To clarify what was implied by that statement, the lack of full and frank disclosure by the affiant and PPSC did not invalidate the authorizations. Where there was a live monitoring condition, the authorizations provided judicial authority to intercept and live monitor the private communications; that is, monitor them as and when they occurred, without interruption, on an ongoing basis.

However, as I found in the Abuse Decision and repeated at para 27 of the Search and Seizure Decision , there was no judicial authority to implement the condition by putting away intercepted communications while still recording them. [ 19 ] This clarification does not alter the conclusions I reached in the Search and Seizure Decision . IV. Conclusion [ 20 ] I have exercised my reserved jurisdiction to deal with an issue that has arisen in the Search and Seizure Decision .

I confirm that the failure of the RCMP and PPSC to provide full and frank disclosure to the judge who authorized the wiretaps did not invalidate the authorizations. Heard on the 16 th day of May, 2012. Dated at the City of Edmonton, Alberta this 25 th day of May, 2012. 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