R v Alcantara, 2012 ABQB 73

Court of Queen ’ s Bench of Alberta Citation: R v Alcantara, 2012 ABQB 73 Date: 20120127 Docket: 070060157Q1 Registry: Edmonton Between: Her Majesty the Queen - and - John Reginald Alcantara and Alan Peter Knapczyk Accused _______________________________________________________ Reasons for Judgment - Constitutional Question of the Honourable Madam Justice S.J. Greckol _______________________________________________________ I.

Introduction [ 1 ] The two accused in these proceedings, John Reginald Alcantara [Alcantara] and Alan Peter Knapczyk [Knapczyk] [collectively, the Applicants], seek a declaration that ss 185(1.1) and 186(1.1) of the Criminal Code [ Code ] are of no force or effect as being contrary to s 8 of the Canadian Charter of Rights and Freedoms and incapable of being saved under s 1 of the Charter . [ 2 ] The Applicants argue that wiretapping legislation is constitutionally valid only if investigative necessity is required as a condition for authorization. [ 3 ] The Crown takes the position that the issue is moot.

It is not one which must be decided in this case and, as declarations are a discretionary remedy, the Court should refrain from making a ruling on the constitutional validity of the impugned Code provisions.

II. Background [ 4 ] 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. [ 5 ] The investigation began about 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 Code and the Controlled Drugs and Substances Act [ CDSA ]. [ 6 ] The police also obtained five authorizations to intercept private communications under s 186 of the Code (WT1709, WT1712 and WT1713).

Both WT1712 and WT1713 are comprised of two mirror authorizations; one based on ss 185(1) and 186(1) of the Code , reliant on investigative necessity, and the other based on ss 185(1.1) and 186(1.1) of the Code , reliant on an allegation of criminal organization. Sergeant Mark Anderson of the RCMP (then a corporal), the lead investigator in Project Koker, swore the affidavits in support of the wiretap authorizations.

His affidavit of October 13, 2005 was filed in support of WT1712 and his affidavit of December 13, 2005 in support of WT1713. [ 7 ] Wiretaps were initiated and private communications were intercepted pursuant to the five wiretap authorizations from August 23, 2005 to February 13, 2006. [ 8 ] As a result of the police investigations, Alcantara and Knapczyk were arrested and 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 . [ 9 ] By way of a March 6, 2008 notice of intention under s 189(5) of the Code , the Crown gave notice that it would seek to introduce 464 of the intercepted private communications into evidence at the trial of the Applicants. On September 15, 2010, it served the Applicants with a revised notice of intention which listed 13 fewer intercepted private communications than the original notice. [ 10 ] The Applicants filed motions for exclusion of the wiretap evidence, claiming that their ss 7, 8 and 11(

d) Charter rights had been breached by the police as the searches undertaken pursuant to WT1712 and WT1713 were not authorized by law because ss 185(1.1) and 186(1.1) of the Code are unconstitutional, and as a result of the way in which the authorizations were obtained and implemented. [ 11 ] In a decision on the Applicants’ motions 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, I found that investigative necessity for the wiretaps had been established ( R v Alcantara , 2011 ABQB 719 )[ Garofoli Decision]. For purposes of my decision of January 13, 2012 on the Applicants’ search and seizure motion ( R v Alcantara , 2012 ABQB 31 ) [Search and Seizure Decision], I assumed, without deciding, that the requirement for investigative necessity in s 186(1)(

b) reflects a constitutional imperative and the absence of that requirement in s 186(1.1) renders the latter

section unconstitutional. I concluded at para 287 that since the police had obtained mirror image standard authorizations under s 186 of the Code and the Applicants were not challenging that provision, the law under which the searches had been authorized was reasonable for purposes of the s 8 Collins analysis.

In considering the seriousness of the Charter -infringing state conduct on that application, I stated at para 353 that as the searches in question also had been undertaken pursuant to valid Code provisions, the assumption of unconstitutionality did little to advance the Applicants’ case in relation to my consideration of the seriousness of the Charter -infringing state conduct. In the result, I dismissed the Applicants’ search and seizure motions. III. Legislative Provisions [ 12 ] The relevant Code provisions state:

185(1) An application for an authorization to be given under

section 186 shall be made ex parte and in writing to a judge of a superior court of criminal jurisdiction or a judge as defined in

section 552 and shall be signed by the Attorney General of the province in which the application is made or the Minister of Public Safety and Emergency Preparedness or an agent specially designated in writing for the purposes of this

section by (

a) the Minister personally or the Deputy Minister of Public Safety and Emergency Preparedness personally, if the offence under investigation is one in respect of which proceedings, if any, may be instituted at the instance of the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or (

b) the Attorney General of a province personally or the Deputy Attorney General of a province personally, in any other case, and shall be accompanied by an affidavit, which may be sworn on the information and belief of a peace officer or public officer deposing to the following matters: (

c) the facts relied on to justify the belief that an authorization should be given together with particulars of the offence, (

d) the type of private communication proposed to be intercepted, (

e) the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence, a general description of the nature and location of the place, if known, at which private communications are proposed to be intercepted and a general description of the manner of interception proposed to be used, (

f) the number of instances, if any, on which an application has been made under this

section in relation to the offence and a person named in the affidavit pursuant to paragraph (

e) and on which the application was withdrawn or no authorization was given, the date on which each application was made and the name of the judge to whom each application was made, (

g) the period for which the authorization is requested, and (

h) whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or that the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

(1.1) Notwithstanding paragraph (1)(h), that paragraph does not apply where the application for an authorization is in relation to (

a) an offence under

section 467.11, 467.12 or 467.13; (

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

c) a terrorism offence. . . . 186(1) An authorization under this

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

(

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

b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

(1.1) Notwithstanding paragraph (1)(b), that paragraph does not apply where the judge is satisfied that the application for an authorization is in relation to (

a) an offence under

section 467.11, 467.12 or 467.13; (

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

c) a terrorism offence. IV. Issues [ 13 ] The issues in this application are: A. Whether the constitutionality of ss 185(1.1) and 186(1.1) is a moot issue for purposes of these proceedings. B. Whether this Court should exercise its discretion to issue a declaration. C. Whether ss 185(1.1) and 186(1.1) of the Code are of no force or effect as being contrary to s 8 of the Charter and incapable of being saved under s 1 of the Charter . V. Analysis A.

Is the Constitutionality of Subsections 185(1.1) and 186(1.1) Moot? [ 14 ] As the Applicants’ argument of unconstitutionality does not need to be addressed if the Crown is correct that the matter is moot for purposes of this trial, I will deal with the mootness issue first. 1. Crown ’s arguments [ 15 ] The Crown argues that the constitutional question is moot given the impugned searches also were undertaken pursuant to the conventional WT1712 and WT1713 authorizations and the Applicants’ motions for exclusion of evidence have been decided. Accordingly, the question is purely academic.

It takes the position that the Court should not consider the constitutional question as

resolution of the issue is not necessary in these proceedings. 2. Applicants’ arguments [16] The Applicants reply that exclusion of evidence under s 24(2) of the Charter is only one of the remedies they have sought.They also are asking for a declaration that ss 185(1.1)(

a) and (

b) and 186(1.1)(

a) and (

b) are of no force or effect. They say they have aright to have the Court review a law that was used to authorize a massive intrusion into their privacy. [17] The Applicants rely on R v Pereira, 2008 BCSC 184, 247 CCC (3d) 311. The police in that case had obtained seven pairs ofconcurrent authorizations. One of each pair was a conventional authorization while the second was an authorization issued under s186(1.1) of the Code. The accused challenged the constitutionality of that provision. The Crown argued the issue was moot. Romilly Jrejected the Crown’s argument at para 254, stating: The issue is not moot.

Authorizations to intercept private communications were granted against the accused, without satisfying theinvestigative necessity requirement, and they have a right to challenge the constitutional validity of such legislation. [18] The Applicants also cite Trang v Alberta (Edmonton Remand Centre), 2004 ABQB 497, 360 AR 133 [Trang (QB)], upheld2005 ABCA 66, 363 AR 167 [Trang (CA#1)], leave to appeal to SCC den’d [2005] SCCA No 161. Marceau J in that case held (at paras51 and 53) that an issue is not moot if it can resolve a controversy over past Charter breaches. 3.

Analysis [19] In Borowski v Canada (Attorney General), (SCC), [1989] 1 SCR 342, Sopinka J, for the court, indicated (atpara 15) that the test of mootness is whether there is a live controversy which affects or may affect the rights of the parties. The courtmay decline to hear a hypothetical or abstract issue. However, it may exercise its discretion to depart from this general policy or practice. [20] The issue of mootness arose in Trang (QB).

Twenty-seven applicants in that case sought a writ of habeas corpus and adeclaration that the conditions of their detention and treatment at the Edmonton Remand Centre [ERC] offended ss 7, 8, 9, 12 and 15 ofthe Charter. Other individuals were later added as applicants. The Director of the ERC applied under Rule 129 of the former AlbertaRules of Court to strike from the notice the names of 20 of the applicants who had received judicial interim release and one who hadpleaded guilty and served his sentence.

Marceau J refused that application as he concluded it was still within his discretion to grantdeclaratory relief to those applicants (Trang v Alberta (Edmonton Remand Centre), 2001 ABQB 884, 304 AR 22). [21] Following that decision, one of the applicants was deported from Canada and the charges against him stayed. He was struckfrom the proceedings. Another applicant pleaded guilty and completed serving her sentence. The charges against seven other applicantswere stayed in 2002.

The Director of the ERC brought a new application to strike the names of those seven applicants from the notice onthe basis that their change in circumstances affected the Court's jurisdiction to provide them with any practical relief. In a decision datedNovember 27, 2002 (Trang v Alberta (Edmonton Remand Centre), 2002 ABQB 1042, 329 AR 292), Marceau J indicated (at para 20)that the declaration sought was moot for the seven applicants as it would not personally benefit any of them in terms of the reason theysuggest it was sought.

He characterized the issue before him as being whether the applicants should be granted public interest standing tocontinue on as parties. In the end result, he denied the Director’s application to have the seven applicants struck from the notice. [22] The criminal charges against 19 of the applicants were stayed. [23] The respondents, including the Director of the ERC, once again applied under Rule 129 for an order striking out theproceedings on the basis that they were moot as the applicants no longer faced the criminal charges that had led to their detention andmost had long since been released from the ERC.

[24] In Trang (QB), Marceau J (at para 37) expressed his view that the proceedings were not moot but said (at para 57) that, evenif they were, he intended to exercise his discretion to continue to hear the matters in issue in any event. [25] He acknowledged (at para 49) the comment made by Sopinka J, for the majority, in Phillips v Nova Scotia (Commission ofInquiry into the Westray Mine Tragedy), (SCC), [1995] 2 SCR 97 at para 6 that the Supreme Court of Canada shouldnot decide issues of law that are not necessary to a resolution of the appeal before it, particularly constitutional issues where thefoundation on which the proceedings were launched has ceased to exist.

Sopinka J explained (at para 9) that the policy reason for thiswas that “unnecessary constitutional pronouncements may prejudice future cases, the implications of which have not been foreseen.” Heindicated (at para 12) the practice applied post-Charter as well. [26] Marceau J distinguished Phillips on the ground that the basis for the Charter complaints in that case had dissolved, but theapplicants in the matter before him were complaining of a past Charter breach, which he considered remained to be a live controversy. [27] At para 52, he quoted the following passage from Kent Roach’s text, Constitutional Remedies in Canada, looseleaf ed.(Aurora: Canada Law Book Inc., 2000) at 12.230: Just as declarations are well-suited to dealing with apprehended violations, they are also well-suited to dealing with past violations wherespecific relief is no longer feasible or appropriate.

As discussed above, in R. v. Solosky, (SCC), [1980] 1 S.C.R. 821, theSupreme Court of Canada contemplated that a declaration concerning a past violation of solicitor and client privilege could clarify thelaw and prevent violations in the future. Dickson J. stated: The fact that a declaration today cannot cure past ills, or may affect future rights, cannot of itself, deprive the remedy of its potentialutility in resolving the dispute over the Director's continuing order.

Once one accepts that the dispute is real and that the granting of judgment is discretionary, then the only further issue is whether thedeclaration is capable of having any practical effect in resolving the issues in the case. Determining whether declaratory relief is an appropriate response to a past violation will involve some of the same functionalconsiderations that courts use in deciding whether to exercise their discretion to decide moot cases.

As in Solosky, an importantconsideration will be whether the situation is capable of arising again in the future. [28] Marceau J expressed the view (at para 53) that while a declaration would have no future benefit for any of the applicants, itmight clarify whether conditions at the ERC had been in breach of their Charter rights.

He indicated (at para 56) that: “... an applicationunder s. 24(1) of the Charter in respect of an alleged past Charter breach is not moot unless the remedies sought by the Applicants in theproceeding have been addressed by the Court.” [29] On the appeal of that decision, Costigan JA, for the Court of Appeal in Trang (CA #1) at para 5, agreed that the proceedingswere not moot as there was “a live controversy between the parties as to whether or not the respondents' Charter rights were breachedwhile they were incarcerated.” Leave to appeal that decision to the Supreme Court of Canada was refused, and the proceedingscontinued. [30] In the present case, there is a live issue as to whether the Applicants’ s 8 Charter rights were breached as a result of thewiretap interceptions undertaken pursuant to ss. 185(1.1) and 186(1.1) of the Code.

According to Trang (CA #1), I am bound toconclude the issue is not moot. [31] However, the question remains whether a declaration should issue in these circumstances. B Should this Court Exercise its Discretion to Issue a Declaration?

[ 32 ] An application for a declaration of rights is a discretionary remedy. [ 33 ] On appeal by the Director of the ERC from a decision in the Trang proceedings declaring that vans used to transport prisoners breached the prisoners' rights, the issue of mootness arose again ( Trang v. Alberta (Edmonton Remand Centre) , 2007 ABCA 263 , 412 AR 215 [ Trang (CA #2) ], leave to appeal ref’d [2007] SCCA No 525). Slatter JA, for the court, said (at para 12) that in view of the Court of Appeal’s ruling in Trang (CA # 1) and as there had been no change in circumstances, the issue should not be re-opened at that time.

However, he noted that the chambers judge had not discussed in Trang (QB) whether the applicants were entitled to declaratory relief. He held that the case was not an appropriate one in which to grant the general declarations at issue, commenting at paras 13 and 15-16 that: The presence of some residual continuing controversy does not mean, however, that the court must give declaratory relief. A declaration is a discretionary remedy, and will only be given in appropriate circumstances.

Though they concluded the matter was not moot, both the chambers judge ( 2001 ABQB 884 at paras. 17-18 ) and this Court ( 2005 ABCA 66 at para. 3 ) declined to rule on which, if any, remedies the respondents might be granted. While the availability of declaratory relief was briefly argued in the Court of Queen's Bench, the chambers judge did not discuss in his reasons whether the respondents were entitled to declaratory relief in this case. . . .

Declarations may not be granted where the dispute has become academic, or will have no practical effect in resolving any remaining issues between the parties... : Declarations can potentially be granted even if they will have no practical effect on the rights of the parties. However, this is rarely done for several reasons: (

a) Generally speaking, parties who actually suffer damage or consequences have a right to set the legal principles surrounding their injury. Others who are not directly affected are not generally granted remedies that may affect the rights of those directly affected. (

b) Judicial and societal resources are limited. People cannot afford to be in court constantly just because someone else wants to resolve theoretical questions. (

c) Declarations can lack context, leading to generalized and unhelpful declarations that are meaningless without further litigation. (

d) Abstract declarations encourage intervention in the affairs of governments and citizens beyond the proper role of the superior courts: To permit a complainant who has no concrete injury to require a court to rule on important constitutional issues in the abstract would create the potential for abuse of the judicial process, distort the role of the judiciary in its relationship to the executive and the legislature and open the judiciary to an arguable charge of providing government by injunction... [ 34 ] Slatter JA acknowledged (at para 19) that abstract declarations may be granted if the issue is of public importance and there is no other way to resolve it.

However, he was of the view that in that case there were other means by which the issue could have been determined. [ 35 ] In Taft v Alberta , 2010 ABCA 366 , the Crown appealed the dismissal of its application to strike out an originating notice in which the applicant sought a declaration that various practices during the previous provincial election had breached s 3 of the Charter .

The Crown argued that the issue was moot as the election was over, the results had not been challenged, subsequent amendments to the Elections Act , RSA 2000, c E-1 had addressed many of the alleged irregularities, and there would be no practical value in issuing a declaratory judgment. The Court of Appeal found that the chambers judge had understood that he could dismiss the action as being moot, but held that his reasons for not doing so did not warrant interference on appeal. It rejected the Crown’s argument that a declaration would be of little practical value and, therefore, the claim should be struck.

It said there was no basis for concluding the claim was doomed to failure on that ground.

I note, however, that the basis of the court’s decision was that the application in issue was one to strike a proceeding and the test for such an application was whether it was plain and obvious that a declaration could not be granted in the circumstances. [ 36 ] As noted above, I assumed for purposes of the Search and Seizure Decision, without deciding, that ss 185(1.1) and 186(1.1) were unconstitutional and proceeded to assess whether evidence obtained as a result of wiretap interceptions undertaken pursuant to those provisions should be excluded. I denied the Applicants’ motions for exclusion.

Accordingly, a declaration of unconstitutionality will have no practical effect in resolving any remaining issues between the parties in this case. [ 37 ] There are other practical ways in which the constitutionality of ss 185(1.1) and 186(1.1) of the Code can come before a court.

If the validity of those provisions is challenged in a case where mirror authorizations under ss 185(1) and 186(1) were not obtained or investigative necessity was not established, legal rights and remedies will rest on the outcome of the constitutionality issue. [ 38 ] Slatter JA noted in Trang (CA#2) at para 16 that a declaration can be granted even if it will have no practical effect on the rights of the parties, but this is rarely done for several reasons. [ 39 ] First, parties who are not directly affected generally are not granted remedies that may affect the rights of those who are.

A declaration in the present case could affect the rights of others who will not have had the opportunity to argue the matter. The policy reasons set out by Sopinka J in Phillips for not deciding a moot issue support this view: “...unnecessary constitutional pronouncements may prejudice future cases, the implications of which have not been foreseen.” This consideration weighs against granting a declaration. [ 40 ] A second reason why a declaration may not be granted is that judicial and societal resources are limited, and there is a cost to pursuit of a purely theoretical question.

This concern is applicable to the case before me. I cannot say that the advancement of this argument was pointless: the Charter notice was filed on August 10, 2011, before the Garofoli Decision issued on November 21, 2011. If the challenge to investigative necessity had succeeded, the traditional authorizations would have been undermined. The reasonableness of the law under which the mirror authorizations had been issued would then have been a critical and live issue. [ 41 ] However, the traditional authorizations survived challenge.

The issue on this application has become largely theoretical, except for the Applicants’ entitlement as citizens to a determination of whether the Code provisions used against them pass constitutional muster. [ 42 ] The arguments of counsel on this constitutional challenge are substantial and worthy of serious consideration. However, judicial and public resources are limited. As I observed in the Search and Seizure Decision, these proceedings have been ongoing for over two years, with no legal stone yet left unturned.

The concern with the expenditure of public and judicial resources in relation to an issue that, while not moot, largely is academic at this stage, weighs heavily against granting a declaration. [ 43 ] The third consideration noted in Trang (CA#2) is that a proceeding for a declaration may lack context, leading to generalized declarations that are meaningless without further litigation. That is not really a problem in this case as there are facts that could form the basis of a declaration and the legal issues have been fully and thoughtfully canvassed by the Applicants.

The Crown did not argue its case exhaustively, nor did it present s 1 evidence, but the Applicants should not be prejudiced by the limited evidence and argument advanced by the Crown. This consideration weighs in favour of the granting of a declaration if the Code provisions in issue are found to be unconstitutional. [ 44 ] The final consideration set out in Trang (CA#2 ) is the concern that abstract declarations encourage intervention in the affairs of governments and citizens beyond the proper role of the superior courts. I find this concern neither compelling nor relevant to my conclusion.

Charter litigation is the proper vehicle and courts of superior jurisdiction the proper forum for the determination of rights. In my view, it is inimical to the entitlement of citizens to a declaration of Charter rights to introduce a gatekeeper rule based in part on whether such determinations might “encourage intervention in the affairs of government.” The appropriateness of deference to government decision-making is amply canvassed as part of the substantive Charter analysis.

[ 45 ] Taking into account the result of the Trang (CA#2 ) considerations, as well as the legal history of this case, I am persuaded to decline this application for a declaration of Charter rights. The issue sought to be determined is in large part theoretical at this juncture, and to make a decision could affect the course of future litigation. It is preferable to litigate in a context where the result has practical significance and the impact is real. Further, judicial and public resources are limited.

Quite apart from the resources required for a proper determination of the issue by this Court, its decision on the constitutional validity of these Code sections likely would wend its way to the Supreme Court of Canada. As noted in the Search and Seizure Decision, this case has been vigorously litigated for over two years now, as is the parties’ right, but it is now necessary to turn full attention to the trial. VI.

Conclusion [ 46 ] The issue of whether ss 185(1.1) and 186(1.1) of the Code are of no force or effect as being contrary to s 8 of the Charter and incapable of being saved under s 1 of the Charter is not moot. However, for the reasons canvassed above, I decline to issue a declaration in this matter. Heard on the 13 th day of December, 2011. Dated at the City of Edmonton, Alberta this 27 th day of January, 2012. S.J. Greckol J.C.Q.B.A. Appearances: Simon Renouf, Q.C. for the Applicant Alan Peter Knapczyk A. Clayton Rice for the Applicant John Reginald Alcantara Dennic C.

Hrabcak Public Prosecution Service of Canada for the Respondent Crown