R v Croft, 2013 ABQB 705

Court of Queen ’ s Bench of Alberta Citation: R v Croft, 2013 ABQB 705 Date : 20131202 Docket: 121085393Q1, 121085591Q1, 121086227Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Docket 121085393Q1 Jason Clarke Croft Docket 121085591Q1 Jason Clarke Croft and Wassime Rahime Docket 121086227Q1 Jonathan Mark Rivera Aldaba, Jason Clarke Croft and Steven Daniel Whipple Accused _________________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R.

Burrows Defence Disclosure Application _______________________________________________________ [ 1 ] The four accused named in the three criminal proceedings referenced in the style of cause are charged, in various combinations, with a variety of mainly drug offences. I have been appointed pursuant to Criminal Code s. 551.1 as the case management judge for these proceedings and pursuant to Criminal Code s. 551.7 to adjudicate pretrial motion issues arising in all three proceedings.

[ 2 ] This motion concerns defence disclosure requests which the Crown has refused. The accused seek orders requiring the Crown to provide the requested but refused disclosure. [ 3 ] The materials indicate that there were 210 requests for further disclosure which arose after defence counsel had reviewed the “automatic disclosure”. About 50 of these were refused in whole or in part. By the time all submissions had been made this number had been reduced by a few. Defence counsel categorized the refused requests for which the defence seeks orders from the Court for the purposes of the application.

I have used those categories in these reasons. Confidential Informer Information Notes from specific meetings [ 4 ] There were three wiretap authorizations granted in the police investigation which resulted in the charges before the Court. The first, WT1765, was granted on May 26, 2010 and authorized the interception of the private communications of Paul Francis Pazder as well as 22 named and 7 unidentified persons who it was anticipated would communicate with Pazder. The second, WT1765A, which was issued on May 27, 2010, corrected some typographical errors which had been made in WT1765.

The third, WT1765B, was issued on July 11, 2010 and authorized the interception of the private communications of 5 principal targets including Pazder and one of the accused before the Court, Jason Croft, as well as 31 named (including one of the accused before the Court, Jonathan Aldaba), and 14 unidentified persons. [ 5 ] The affidavits filed in support of the applications for WT1765 and WT1765B, sworn by RCMP Cpl.

Christopher Palfy, included in the grounds for belief that a particular offence or conspiracy to commit it had been or was being committed, information obtained by the police from confidential informants. In the case of WT1765, Cpl. Palfy swore that information had been received from 8 confidential informants and he had relied upon and referred in the affidavit to information from 6 of them. In the case of WT1765B, Cpl. Palfy swore that information had been received from 9 confidential informants and he had relied upon and referred in the affidavit to information from 2 of them. [ 6 ] Cpl.

Nicholas Marcetta, who, as a “source coordinator”, supervises the handling of confidential informants, testified. A confidential informant is a person who provides information to the police subject to an agreement that their identity will be kept confidential. A confidential informant will have a “handler” – a police officer who is the informant’s contact and to whom the informant provides the information. Sometimes, in fact often, there are two handlers for one informant: a primary handler and a “co-handler”.

The two handlers, the detachment commander and the source coordinator, where there is one in the detachment, will be the only officers privy to the identity of the informant. [ 7 ] A notebook is maintained in respect of each confidential informant. The handler who obtains information from the informant will make notes of the meeting between the handler and the informant at which the information is provided, in the notebook maintained for that confidential informant.

The notes generally state the particulars of the meeting (date, time, location), the information obtained from the informant, the particulars of any payment made to the informant, any discussions relevant to informer privilege (the protection of the informer against disclosure of the fact that they are an informer), and discussions of the informer’s safety. Cpl. Marcetta testified that the notes are very specific.

They refer not only to the information that the informer is providing to the police but to the informer’s relationship with the person whose activities the police are investigating and to whom the information provided relates. They state how the informant came to have the information they are providing to the police, including details as to who was present when they learned the information. [ 8 ] The notebooks are kept in the detachment commander’s safe when they are not in use. Only the handler and the source coordinator have normal access to the notebook maintained in respect of a particular informant.

The detachment commander would also have access in an emergency if the handler were not available. [ 9 ] Cpl. Marcetta testified that from the information in the handler’s notebooks the handler prepares Source Debriefing Reports (SDRs), taking care not to include information which could identify the informant. The handler will include information as to the perceived reliability of the informant in the SDR. If there is a co-handler, he will review the SDR. [ 10 ] SDRs are posted on a database where officers with a certain level of security clearance can access them.

If the information obtained from an informant cannot be stated in a manner which protects the identity of the informant, only the fact that there is an SDR will be posted on the database. An officer who believes that information obtained from an informant may be relevant to a particular investigation must speak to the handler before using the information. In the conversation the protection of the informant and the informant’s reliability would usually be discussed. [ 11 ] An affiant, such as Cpl. Palfy, would have reference to SDRs in preparing the wiretap affidavit.

He would not have reference to informer handler notes except in rare circumstances. In the affidavit in support of WT1765, Cpl. Palfy swore: 71. In each instance where I have provided information that was received from a Confidential informant, I have read a Source Debriefing document and/or had a verbal conversation with the handler(

s) who debriefed the Confidential Informant. A “handler” is usually the police officer who deals directly with the Confidential Informant. 72. I have also discussed the information provided by the Confidential Informant with the handler or originator of the Source Debriefing document. [ 12 ] I understand that all of the SDRs used by Cpl. Palfy in drafting paragraphs of the affidavit as it was presented to the authorizing judge, vetted to protect informer privilege, have been disclosed. [ 13 ] Cpl. Palfy testified that before finalizing the affidavits, a draft of the paragraph which Cpl.

Palfy prepared for the wiretap affidavit, stating the information obtained from a confidential informant, was provided to the handler of that informant for comment. Cpl. Palfy referred to the drafts of paragraphs so provided as “verification paragraphs”. Verification paragraphs would be returned by the

handler with any comment the handler considered necessary. The returned verification paragraphs have been disclosed. [14] This disclosure request category includes about 20 requests for informer handler notes. [15] Counsel referred me to several cases where the accused sought disclosure of notes of contacts with and information obtainedfrom informants. [16] In R v. Barzal (1993) (BC CA), 84 C.C.C. (3d) 289 (BCCA), the wiretap affidavit referred to informationobtained from 7 police informers.

The accused sought disclosure of debriefing notes with respect to the informers on the basis that itwas necessary for testing the reliability of the informers. In para. 9 of the decision the BCCA described the police procedures regardingthe creation and maintenance of the informer debriefing notes. They were very similar to the procedures described by Cpl. Marcettabefore me.

Though the BCCA decision sometimes refers to “debriefing notes” and sometimes to “debriefing reports”, as I read thedecision the document sought to be disclosed was the equivalent of the handler debriefing notes – not the SDRs - in the case before me. [17] The Crown objected to the requested disclosure.

Evidence before the trial judge at the disclosure hearing included that of apolice officer who testified that it would be impossible to edit the debriefing notes in such a way as to guarantee that the edited noteswould not contain information capable of identifying the informer to other people involved in the matter.

The officer also agreed thataccess to the debriefing reports would be required for a third party to assess the reliability of the informers. [18] The BCCA held that the debriefing notes were not subject to disclosure because they were not part of the information whichhad been before the authorizing judge.

The Court said: (paras. 43 and 44) On a review of an authorization the trial judge is endeavouring to determine whether in the totality of the circumstances the authorizingjudge could have concluded that the informants were sufficiently reliable to support a finding of reasonable and probable grounds.Subject to the existence of fraud, non-disclosure, or misleading evidence, none of which were alleged here, the indicia of reliability mustbe in the material before the authorizing judge. Otherwise the authorization cannot stand.

It is reliability in this context which is relevantin respect to the validity of an authorization, not reliability at large. In this case the accused wanted access to the debriefing notes in order to test the reliability of the informers. A detailed inquiry intopolice files is not required for that purpose. Sufficient reliability is established, or is not established, by reference to the material filed insupport of an application for an authorization. The right to make full answer and defence in this context is a right to the disclosure ofmaterial which had been before the authorizing judge.

It is not a right to embark on a fishing expedition of all the material in thepossession of the police. Such an enquiry could be endless, including access to police files, cross examination of police officers, crossexamination of informants (which is not permitted; Garofoli at p. 1465), and consideration of the details of each case in which theinformer had been involved. [19] Trial judges followed Barzal in R v. Hazelwood [2000] O.J. 459 (Ont S.C.J.); R v. Terezakis 2005 BCSC 850 ,[2005] B.C.J. No. 3201 (BCSC); and R v. Basi 2010 BCSC 26 , [2010] B.C.J.

No. 25 (BCSC), in dismissing defence requestsfor disclosure of undercover operation files (Hazelwood) and informer handler notes (Terezakis and Basi). [20] In R v. Ahmed, 2012 ONSC 4893 (Ont. S.C.J.) (report not available online) MacDonnell J. took a different approach. Heapplied the reasoning of the Supreme Court of Canada in R v. Pires; R v.

Lising 2005 SCC 66 , [2005] 3 S.C.R. 343 indetermining the scope of required disclosure in an application for review of a wiretap authorization. [21] In Pires Lising the Supreme Court reviewed the requirement that the accused obtain leave to cross-examine on the affidavitused in support of an application for a wiretap authorization – the requirement that the accused show a reasonable likelihood that cross-examination will elicit testimony of probative value to the issue for consideration by the reviewing judge. [22] Charron J., writing for the Court, noted that the issue on a review application is significantly narrower than the issue on thetrial itself.

The review application is an evidentiary hearing. The narrow question is whether relevant evidence obtained by the police isadmissible at the trial. It further narrows the scope of the inquiry that the issue for the reviewing judge is whether the authorizing judgecould be satisfied, on the record presented and amplified, that the relevant statutory preconditions for the authorization existed. [23] Charron J. observed that the basis for exclusion of the wiretap evidence is very narrow.

Even where the affidavit containsinaccurate information or omits material information, it will not necessarily impact the admissibility of the wiretap, if the remainder ofthe information in the affidavit could justify the authorization. [24] In the context of the requirement that leave to cross-examine the affiant be obtained, Charron J. observed: There is no point in permitting cross-examination if there is no reasonable likelihood that it will impact on the question of theadmissibility of the evidence. [The requirement for leave to cross-examine] is nothing more than a means of ensuring that, when a s. 8challenge is initiated, the proceedings remain focussed and on track. . . .

If the proposed cross-examination is not likely to assist in the determination of [whether the authorizing judge could grant the order] itshould not be permitted. . . . A reasonable likelihood that it will assist the Court to determine a material issue is all that must be shown. [25] In Ahmed, MacDonnell J. adopted a parallel approach in the context of determining whether to order disclosure. (paras. 30,31, 32) Once a disclosure request reaches beyond what was before the authorizing judge and the investigative file, any presumption of relevanceis significantly attenuated.

That is not to say that an accused cannot obtain disclosure of such material for the purposes of a Garofoli application. However,consistent with the approach to cross-examination of wiretap affiants affirmed in Pires the accused must establish some basis forbelieving that there is a reasonable possibility that disclosure will be of assistance on the application. Placing a relatively modest onus on the defence in that respect acknowledges the practical realities of the process by which grounds forjudicially authorized searches are developed.

In making a case for a wiretap authorization, particularly in a complex case, an affiant willinevitably be required to distill information gathered by other police officers. . . . [S]he did not go behind those . . . routine reports tocheck them against the underlying notes for accuracy and completeness. In the absence of some basis for suspecting a problem, it wasreasonable for her not to demand that the authors of the reports provide her with their notebooks.

It is equally reasonable, in my view, torequire the applicants to point to something that justifies an order that those notebooks be produced for the purpose of the Garofoliapplication. To hold that there is no such requirement would open the door to wide ranging, time consuming, and resource drainingfishing expeditions. [26] MacDonnell J. concluded: (para. 48) A Garofoli review is not intended to be a trial of every piece of information that the affiant gathered for the purpose of the wiretapapplication.

The approach of the applicants in this case seems to me to be pointed in exactly the opposite direction to that charted by theSupreme Court in Pires. The manner in which the affiant proceeded – reviewing over 100 separate reports in relation to the confidentialsource and surveillance evidence alone – and having the authors of each of those reports confirm the accuracy of her

summary of them,was reasonable. In the absence of a reason for believing that discrepancies might be unearthed by looking at the notes, or for suspectingthat the authors of the reports misstated the facts contained in the reports, there is no basis to order that the notes be produced. [27] In R v. Gallant, (2010) 2010 NBQB 187 , 362 N.B.R. (2d) 109 (NBQB) the Court ordered the disclosure of handlernotes. In making that order LaVigne J. did not consider the narrow scope of the inquiry on a Garofoli application.

Though shementioned that the accused sought disclosure for the purpose of determining whether or not to challenge the wiretap authorization, sheapproached the issue on the same basis as would be applied in an application for disclosure of information for the purposes of the trial ofthe merits of the charges.

The distinction made in Pires Lising and applied in Ahmed was not addressed. [28] The accused here argued that Charron J.’s reasons in Pires Lising for requiring the accused to show that cross-examining theaffiant could possibly be worthwhile, cannot be applied in determining the scope of disclosure for the purposes of the wiretapauthorization review.

They noted that Charron J. herself mentioned the wide scope of disclosure as a justification for the limitation onthe right to cross-examine: (paras. 26 and 27) . . . [U]nder the principles established in Stinchcombe, the defence is entitled to all material in the possession or control of the Crown thatis potentially relevant to the case, whether favourable to the accused or not. The defence can therefore compare the contents of theinvestigative file received from the Crown to the authorization’s supporting material to ascertain whether anything throws doubt on thereasonable believability of the latter.

Further, the disclosure material may also provide the defence with possible third-party avenues ofinquiry. Hence, the defence does not arrive empty-handed at the evidentiary hearing. More importantly, if no basis can be shown for questioningthe validity of the authorization on the strength of the disclosed material, it is generally unlikely that cross-examination of the affiant willprovide further material information. [29] Clearly this passage contemplates a wider scope of disclosure in the context of a wiretap authorization review than wascontemplated by the BCCA in Barzal.

That case suggested that only the material that was before the authorizing judge need bedisclosed. Pires Lising contemplates disclosure of the contents of the “investigative file”. [30] The Crown here argues that the handler notes are not part of the investigative file – they were never seen by the affiant or anyother investigator assigned to the investigation.

The affiant saw only the SDRs. [31] I do not read Charron J. in the quoted passages as suggesting the use of a different standard of relevance and materiality indetermining issues of disclosure for the purposes of a Garofoli review, than she used in justifying a limitation on the right of cross-examination. In my view the need to keep the inquiry focused and on track is as great in the context of disclosure as it is in the context ofcross-examination.

A requirement that the accused show a basis for concluding that disclosure of materials beyond what the affiantconsulted and what was put before the authorizing judge would advance the inquiry is appropriate. [32] Like Trotter J. in R v. Ali 2013 ONSC 2629 , [2013] O.J. No. 2074, I find the reasoning of MacDonnell J. in Ahmedcompelling.

In my view, given: - the narrow nature of the issue on the review application, - that the affiant did not have reference to the handler notes, - that the affiant has confirmed with the handler the accuracy of the information from the informer as it appears in the affidavit, - that the Criminal Code contemplates and expects that the decision of the authorizing judge will be made on the basis of affidavitsfounded on information and belief as opposed to personal knowledge (s. 185(1)), and - the practical impossibility of ensuring the elimination through vetting of all risk of exposing the identity of the informant to thosefamiliar with the circumstances surrounding the informer’s disclosure of the information, it is reasonable to require that the accused show a reasonable possibility that something useful would be achieved by the disclosurerequested before such disclosure is ordered.

[ 33 ] The accused here submitted that a reasonable possibility that the handler notes would reveal significant inaccuracies in the SDRs or inaccuracies in the affidavits of Cpl. Palfy was demonstrated by: a. Inconsistencies between an SDR and the

summary of its information in an ITO sworn by an officer in support of an application for a production order. The SDR referred to a suspected drug courier driving a “green” vehicle. The ITO referred to a “dark green” vehicle. There was also information in the ITO that was not in the SDR which the deponent stated he obtained directly from the handler and not from an SDR. b. Failure of the deponent of the same ITO to refer in the ITO to information as to the reliability of the confidential informant and other information that was in the SDR. c. A verification paragraph where the handler had made a correction.

The paragraph had said a suspect had travelled to Vancouver. The correction was that the suspect was planning a trip to Vancouver. [ 34 ] In my view these instances do not alone or collectively establish a reasonable possibility that disclosure of the handler notes is justified.

The discrepancies observed are either exceedingly minor, could not involve handler notes, or demonstrate the effectiveness of the verification paragraph procedure in ensuring the accuracy of the affidavit’s description of what the informant told the police. [ 35 ] I dismiss the defence application for disclosure of the confidential informant handler notes. [The specific requests thus dismissed are: 13 – 18, 20, 22, 23, 28, 31, 39, 53, 85, 86, 100, 110, 126, 200 (in part) and 202 (in part).] [ 36 ] There were a few other disclosure requests which were included in this category, “Confidential Informer Information”.

In respect of some of these the Crown has responded that it has disclosed all that can be disclosed of the requested information without violating informer privilege. I accept that response and decline to make a disclosure order. [Requests 126 and 128] [ 37 ] Some of the disclosure requests in this category, at least as worded, appear to be cross-examination questions masquerading as disclosure requests. In the context of a wiretap authorization review, the Crown’s disclosure obligation is not an obligation to answer the equivalent of written interrogatories in civil litigation.

It should not be used to bypass the requirement to establish a reasonable justification for cross-examination. I decline to make a disclosure order in respect of those requests. [Requests 132 (in part) and 200 (remaining part)] [ 38 ] There are two exceptions. First, part of Request 132 is for disclosure of SDRs containing information from confidential informants to which Cpl. Palfy had reference when he was drafting the wiretap affidavits but which he did not include in the affidavit. As previously noted, Cpl.

Palfy swore that he received information from 8 confidential informants but referred to the information of only 6 of them in the affidavit for WT1765. He received information from 9 confidential informants but referred to the information of only 2 of them in the affidavit for WT1765B. In my view, having disclosed the SDRs for the confidential informants Cpl. Palfy referred to, the Crown ought also to disclose the SDRs containing the information Cpl. Palfy referred to but did not include in the affidavit.

I order the disclosure of those SDRs, subject of course, to such vetting for the protection of informer privilege as is necessary. [ 39 ] The second exception is in relation to the remaining parts of Request 202. Request 202(

b) seeks source reports (which I understand to be SDRs) “for the information provided by Confidential Informant “E” from between January and July 2010 (as referred to in the ITO found at DOC01973)”. I understand the reference to be to the use by a deponent of an ITO (as opposed to Cpl. Palfy as affiant of the wiretap affidavit). [ 40 ] So far as I am aware this request was not specifically addressed by counsel in their submissions on the application.

If the SDR was referenced for the preparation of an affidavit used to obtain a judicial authorization which is challenged in an application brought in these proceedings, the default position should be, in my view, that it be disclosed. I will conditionally order the disclosure sought. Since the question was not specifically addressed in the application, the condition on my order is that the Crown may seek reconsideration of the point before making disclosure if it so wishes.

Again, the ordered disclosure is subject to such vetting for the protection of informer privilege as is necessary. [ 41 ] Finally, in Request 202(

d) the accused seek less vetted copies of certain SDRs which have been disclosed. It will be convenient to address this request at paragraph [47] below. Tear away portion of the affidavits [ 42 ] In affidavit 1765, at the conclusion of the

section of the affidavit where he described how he had acquired the information of confidential informants, and in which he set out some information relevant to the credibility of each of the confidential informants whose information he had included in the affidavit, Cpl. Palfy swore: 78. I have attached and marked at Tab “6” within Exhibit “1”, information relative to these Confidential Informants that I believe is relevant to the investigation. It is so specific that the disclosure could result in the identity of a Confidential Informant being revealed.

I believe that even the disclosure of whether a person does or does not have a criminal record, can sufficiently narrow the scope of search such that their identity could be revealed. In some cases, I believe that the disclosure of the identity and/or location of a police officer handling an informant could lead to their identity being revealed.

For these reasons, should charges arise from this matter, it is my intent to remove the information contained at Tab “6” within Exhibit “1” in its entirety, prior to this Affidavit being disclosed. [ 43 ] A similar paragraph appears in affidavit 1765B (para. 60, referring to Exhibit “6”). [ 44 ] The exhibits referred to in these paragraphs have been labeled “tear away portions of the affidavits”. They have not been disclosed.

Defence disclosure requests 19 and 87 seek their disclosure. [ 45 ] The tearing away of the tear away exhibits is nothing more than a method of editing the affidavit as required by Criminal Code section 187(4). Section 187(7) describes the procedure by which an accused can seek review of such editing:

187(7) An accused to whom an edited copy of a document has been provided pursuant to subsection (5) may request that the judge before whom the trial is to be held order that any part of the document deleted by the prosecutor be made available to the accused, and the judge shall order that a copy of any part that, in the opinion of the judge, is required in order for the accused to make full answer and defence and for which the provision of a judicial

summary would not be sufficient, be made available to the accused. [ 46 ] I would have been prepared to treat the accused’s application for a disclosure order in respect of the tear away exhibits as a request under s. 187(7) except that Mr. Renouf, in his submissions, seemed to suggest that the accused might make such a request – not that they had. I therefore dismiss the application for disclosure of the tear away exhibits without prejudice to the right of the accused to make a request under s. 187(7) should they wish to do so.

If such a request is made I will invite counsel to address the procedure which I should follow to make the determination contemplated in s. 187(7). [ 47 ] I return to Request 202(

d) in which the accused seek “less vetted” copies of certain SDRs. (see para. [41]) Criminal Code s. 187(7) contemplates a review of the editing of the materials put before the authorizing judge – not of the additional materials produced in the disclosure. Mr. Renouf pointed to some instances where information from the same confidential informant appearing in different affidavits has been vetted differently. This in my view justifies a review of the vetting perceived to be unduly severe in the documents referred to in Request 202(d). Mr.

Hrabcak undertook to have the vetting reviewed in some instances to determine if amendments could be made to the vetting. I do not have a note as to whether he also undertook to have the vetting referred to in Request 202(

d) reconsidered. If he did not, or if he is not willing to, or if the defence is not satisfied with the result of such a review if it is undertaken, I direct that a process based on that contemplated by s. 187(7) be undertaken with respect to the two SDRs mentioned in Request 202(d). Subfile [ 48 ] In wiretap affidavits WT1765 and WT1765B, Cpl. Palfy referred to other police investigations involving persons of interest in the investigation which resulted in the charges before the Court. In particular: - Para. 107, WT1765: Reference to an EPROS database inquiry.

EPROS is “the Edmonton Police Service computer database which contains information from all incidents reported to the EPS” (WT1765, para. 79(c)). The EPROS database inquiry indicated that on November 6, 2009, Pazder was arrested for impaired driving, that the arresting officer observed that Pazder had bloody knuckles, which Pazder advised were the result of his having spilled acid on his hand during a work incident. Cpl.

Palfy deposed that Chemist Paul Driver informed him that methamphetamine production requires the use of strong acids and bases, both of which are corrosive and can cause the type of injury observed to Pazder’s knuckles. - Para. 137, WT1765: Reference to a Prosecutors Information Sheet of March 3, 2010 which stated that as a result of a Calgary RCMP Drug

Section investigation, Kasawski and Hudema were arrested after Hudema, in Kasawski’s presence, placed a backpack containing 2 kilograms of cocaine in a vehicle. Cpl. Palfy deposed that he believed this information corroborated information obtained from a confidential informant that Kasawski is a kilogram level cocaine trafficker. - Para. 141, WT1765: Reference to EPS occurrence report which indicated that on March 10, 2010, Ryan Lloyd was arrested on 18 outstanding warrants and during the arrest methamphetamine was found in the car. Lloyd was charged with 11 offences including drug possession. Cpl.

Palfy cited this arrest as contributing to his belief that Lloyd was a methamphetamine trafficker. - Para. 149, WT1765: Reference to a PROS database inquiry. PROS is a national RCMP computer system containing files on RCMP occurrences (WT1765, para. 79(d)). The PROS inquiry stated that on April 1, 2010 Sanregret had been arrested in Tofield, Alberta and charged with assaulting Joshua Mendiuk. Mendiuk had reported to police that Sanregret had assaulted him after accusing him of stealing half a pound of marihuana from Sanregret’s apartment. Cpl.

Palfy cited this information as supporting the conclusion that Sanregret is involved in trafficking marihuana.

Other information in the affidavit indicated that Sanregret communicated with Pazder for the purpose of marihuana trafficking and as a result should be named as an Other Known Person in the authorization. - Para. 155, WT1765: Reference to a PROS database inquiry which indicated that 102, 10710 111 Street, Edmonton, the address indicated in the subscriber information for a cell phone number which a confidential informant stated Pazder used, was the address Duc Huu Tran gave as his residential address when he was arrested for possession of 3 kilograms of cocaine on December 13, 2008. - Para. 136, WT1765B: Reference to an EPROS database inquiry which indicated that on June 16, 2010, EPS arrested Pazder on outstanding warrants when he was driving a vehicle.

The purpose of the arrest was to gain access to the vehicle so that a warranted tracking device could be installed. Pazder informed the arresting officers that the cell phone he possessed belonged to his passenger, Hubbard and gave the phone to him. He also insisted that Hubbard take the keys to the vehicle. Cpl.

Palfy deposed that Pazder’s action regarding the cell phone and his desire regarding the keys were an attempt to prevent the police from obtaining evidence of his drug trafficking from the phone and vehicle. - Para. 176, WT1765B: Reference to a PROS database inquiry which indicated that on June 27, 2010, the RCMP executed a search warrant at the residence of Leslie Hillebrand, and found drugs and items associated with trafficking including what appeared to be transaction records referring to “Fin”, a nickname used for Pazder. - Para 177, WT1765B: Reference to a EPROS database inquiry which indicated that on June 27, 2010, Croft (one of the accused now before the Court) was arrested for violation of a Court imposed curfew.

On his release from custody Croft was ordered to reside at 10164 88 Street. This address was subsequently used in the surveillance of Croft during which surveillance he was seen doing things which Cpl. Palfy deposed were consistent with drug trafficking (para. 183). - Para 194, WT1765B: Reference to a EPROS database inquiry which indicated that Quinn had been accused by witnesses of having assaulted Maki in a home invasion incident. The witnesses said Quinn was enraged with Maki, told her he hated her, and wanted her dead. Cpl.

Palfy deposed that he included this information in the affidavit in order to inform the authorizing justice that Quinn could be arrested in the near future but that he should nonetheless be included as a Principal Know Person because Cpl. Palfy could not predict when he might be arrested or whether he would be held in custody. Cpl. Palfy sought authority to continue the intercepton of his communications, should he be incarcerated.

[ 49 ] The accused seek disclosure of the complete police files in relation to each of the incidents to which Cpl. Palfy so referred. Cpl. Palfy did not himself review the complete police files. He referenced only the

summary of the information relating to the incident which he described in the affidavit. In each case the document to which he did refer has been disclosed. [ 50 ] The Crown’s position is that these files are not part of the “investigative file”. The information from them which was taken into account in this investigation has been disclosed. The complete files are not among the materials which the police are required to provide to the Crown for disclosure. They are not materials subject to “first party” disclosure.

Disclosure could only be ordered in the context of an O’Connor application to which the relevant police authority would be a respondent. [ 51 ] I neither accept nor reject the Crown’s position. Rather, I prefer to resolve this issue using the same analysis as I have applied in the context of the request for disclosure of the informer handler notes.

If the requested “subfiles” could be ordered disclosed in this application, in my view, it would require that the accused show some basis for concluding that examination of the files would possibly reveal something significant to the issues on the application to review the wiretap authorization. [ 52 ] In my view it is significant to observe that the fact which Cpl.

Palfy extracted from the material he referenced was in each case a very finely focused point: - Pazder was observed to have bloody knuckles consistent with an injury sustained in cooking methamphetamine. - Kasawski was present when a backpack containing 2 kilograms of cocaine was put in a vehicle. - Methamphetamine was found in Lloyd’s vehicle. - Sanregret was said to have possessed ½ lb of marihuana. - A cell phone said to be used by Pazder was subscribed to the address of a person arrested for possession of 3 kilograms of cocaine some years earlier. - Pazder, when arrested, took action consistent with seeking to hide evidence of participation in drug trafficking. - Pazder’s nickname appeared in score sheets found in a search where drugs possessed for trafficking were also found. - Croft’s address was stated in documentation relating to his release after being arrested. - A police investigation of Quinn could result in his imminent arrest and incarceration. [ 53 ] In my view disclosure of the entire police investigation files, which were summarized in the already disclosed documents which Cpl.

Palfy actually referenced and from which he distilled these focussed facts, is unwarranted unless the accused have shown a reasonable possibility that the files would reveal an inaccuracy in the distilled facts significant to the review application. The accused have not done so. [ 54 ] In his submissions, Mr. Renouf did point to discrepancies between the disclosed source document and Cpl. Palfy’s description of what it contained in his affidavit as justification for disclosure to the defence of the complete police file.

He noted, for example, that the description of the circumstances of Sanregret’s arrest (the fourth item in the lists in paragraphs [48] and [52]) in the source document did not say clearly that the alleged assault occurred when the victim denied stealing the marihuana, rather it can be reasonably interpreted as having occurred because of the theft, not because of the denial of the theft. Such a “discrepancy” does not justify the disclosure of the entire police file. It is in relation to a detail entirely unrelated to the point Cpl.

Palfy relied on the source document for: that Sanregret was said to possess a trafficable quantity of marihuana. [ 55 ] A second example noted by Mr. Renouf is similarly insignificant. Mr. Renouf pointed to discrepancies between the source document and Cpl. Palfy’s description of them in the affidavit as to Pazder’s conduct in relation to the cell phone he possessed at the time of arrest (the fifth item in the lists in paragraphs [48] and [52]). In the affidavit Cpl. Palfy said that Pazder told the arresting officer that the cell phone he possessed belonged to his passenger.

The source document says that Pazder gave the cell phone which was on his person to his passenger. It is of no moment whatsoever whether Pazder said the cell phone belonged to the passenger. The point made by Cpl. Palfy, that Pazder was trying to prevent police access to his cell phone, is of equal strength, whatever that strength may be, whether Pazder said it was the passenger’s phone or simply gave it to him. Even if a review of the complete police file in relation to the investigation that resulted in the arrest cleared up the discrepancy, Cpl. Palfy’s point would remain. [ 56 ] Mr.

Renouf pointed to other examples where, he submitted, Cpl. Palfy’s description of the incident from which the focused fact emerged suggested he had access to something beyond the disclosed source document. I have considered those submissions and I do not agree with Mr. Renouf’s conclusion. [ 57 ] I see no justification for requiring the Crown to disclose the “subfiles” requested by the accused. This deals with Requests 5, 29, 43, 52, 57, 93, 106, 107, and 111. Third Party [ 58 ] This category of disclosure requests initially contained 8 requests.

Developments prior to the conclusion of the hearing of the application eliminated 5 of the requests. [ 59 ] Two of the 3 remaining requests relate to a tracking warrant obtained by Calgary RCMP in respect of Kasawski’s vehicle. In WT 1765 Cpl. Palfy deposed: 178. I am informed by Cst. Burton that on February 4, 2010, he swore an Information to Obtain a Tracking Warrant before Justice of the Peace P.B. Higgerty, requesting a Tracking Warrant be granted for Kasawski’s black Honda Pilot, which resulted in:

a. The issuance of a Tracking Warrant for the period from February 7, 2010, to April 7, 2010. [I am informed by Cpl. Bannerholt that the tracking device was removed from Kasawski’s vehicle following her March 3, 2010 arrest.] 179. I believe the information gathered through the tracking warrants has, from time to time, assisted the surveillance teams. Investigators have been provided with a starting point for surveillance.

On other occasions, the information obtained from the trackingdevice allowed surveillance teams to determine the location of Kasawski and provided opportunities to make direct observations ofsuspected drug trafficking transactions. [60] The accused seek disclosure of, “The ITO, the tracking warrant, and the results of the tracking warrant” (Request 72) and“Notes and reports regarding the removal of the tracking device” (Request 73). [61] The Crown resists disclosure on the basis that this tracking warrant was obtained by Calgary RCMP, not the Edmonton teamof RCMP officers engaged in the investigation which led to the charges before the Court.

As a result, the Crown submits, the requesteddisclosure is not part of this investigative file and no disclosure obligation exists in relation to it. [62] There is no suggestion in Cpl. Palfy’s affidavit that the tracking device was obtained for a purpose outside the scope of thisinvestigation. Even if it was, Cpl. Palfy’s affidavit invites the inference that the tracking device and the information obtained from itreceived significant use in this investigation.

I can see little distinction between the requested information and information disclosed inrespect of a tracking warrant that was obtained by a member of the Khemistry investigative team. I order the requested disclosure. [63] The remaining disclosure request in this category (Request 157) is for “Task Activity Logs for all EPS files”. As I understandit, the request is for task activity logs in respect of the same EPS investigations to which some of the “subfile” requests previously dealtwith related. The Crown responded that it has no knowledge of whether the requested documents even exist.

But whether or not theyexist, in my view, having dismissed the request for disclosure of the EPS files, I must also dismiss this request, which is for documentswhich, if they exist, would be part of those files. Solicitor/Client Privilege [64] This request (Request 76) arises out of para. 245 of WT1765 which supported Cpl. Palfy’s application for a general warrantrequiring production of subscriber information in relation to all telephones used or called by Pazder. Cpl. Palfy deposed: 245. Having received information from Robert Macdonald, Crown Counsel, and having read

Section 492.2 of the Criminal Code thatalthough his

interpretation is not universally accepted, I believe that

Section 492.2 of the Criminal Code allows for the capture of therecord of the telephone call, meaning the “number recorder device” captures the number dialed into or out of a location and includes thedate, time, and duration of the telephone call. I believe

Section 492.2 does not allow for the retrieval of non-published subscriberinformation. Based on the foregoing, I believe there is no other provision in the Criminal Code to provide for such an order, other than ageneral warrant and that such an order, if granted, is reasonable under the circumstances and in the best interests of the administration ofjustice. [65] The disclosure request is for: “Notes and reports of Cpl. Palfy and Robert MacDonald regarding Robert MacDonaldinforming Cpl. Palfy of the

interpretation of s. 492.2 of the Criminal Code.” [66] The Crown replied to the request as follows: If Sgt. Palfy or Crown Counsel, Robert MacDonald, had notes relating to advice Crown Counsel Robert MacDonald provided Sgt. Palfyregarding the

interpretation of

section 492.2 of the Criminal Code, they would be subject to solicitor-client privilege. Further, I cannotidentify any such notes as to do so would identify the nature of a solicitor-client communication vetted from notes. As a result, I am notin a position to confirm whether such notes exist. [67] As an aside, I observe that if the notes do not exist, it would have been simple and it would have saved the expenditure ofsignificant time and effort for the Crown to have simply said so. [68] Mr.

Renouf submits that, assuming they exist, any solicitor-client privilege which the Crown could claim in them has beenwaived because Cpl. Palfy referred to the advice and did so for the purpose of bolstering the weight to be attached to the opinion heexpressed as to the scope of s. 492.2. In support of that submission, he cited R v. Campbell, (SCC), [1999] 1 S.C.R.565. In that case the RCMP, prior to conducting a reverse sting operation which involved selling illegal drugs to the accused, obtainedlegal advice from the Department of Justice as to the legality of the proposed operation.

After the accused were convicted they sought ajudicial stay before sentencing claiming that the police conduct was an abuse of process. The defence sought but was denied disclosureof the Department of Justice opinion at trial. The Supreme Court held that by taking the position that obtaining the advice and relying onit supported the conclusion that the police had acted in good faith, the solicitor-client privilege which the police otherwise would haveheld in respect of the opinion had been waived. The Supreme Court ordered disclosure of the opinion in the context of a new trial of thestay issue.

Binnie J. said, “Because the RCMP made a live issue of the legal advice it received from the Department of Justice, theappellants were and are entitled to get to the bottom of it.” (para. 73) [69] In my view, the situation before me is essentially the same. In para. 245 Cpl. Palfy, to support the conclusion, required by s.487.01(1)(

c) if a General Warrant is to issue, that no other provision of the Code or other Act of Parliament would provide for a warrantto require production of non-published subscriber information, stated that in his opinion an order under CC s. 492.2 would not do so. Though the grammar of para. 245 is somewhat garbled, it is fairly read as stating that the basis of Cpl. Palfy’s opinion was a legalopinion from Robert MacDonald, Crown Counsel as to the proper

interpretation of CC 492.2. There can have been no reason to mentionMr. Macdonald’s advice except to enhance the weight the authorizing judge might attach to Cpl. Palfy’s opinion. [70] The resulting paragraph of WT1765, para. 8, ordered “. . . all telephone, cellular telephone or radio-based communicationcompanies in Canada . . . that possess published and unpublished subscriber information [to] provide this information to [Cpl.] Palfy . . .

upon request.” The applicants challenge the general warrant so granted. [71] It will potentially be an issue in that challenge as to whether the requirement of s. 487.01(1)(

c) was satisfied. Mr.MacDonald’s opinion will be as relevant in the challenge as apparently Cpl. Palfy thought it was to the authorization application. Hisreference to it, and reliance on it, effected a waiver of the solicitor-client privilege which would otherwise have attached to it. [72] I order disclosure of any notes or other documentation which records or relates to Mr. MacDonald’s advice regarding theinterpretation of s. 492.2 of the Criminal Code. Policies [73] My understanding is that prior to the conclusion of the argument of this application Mr.

Renouf accepted that the responsesgiven by the Crown to Requests 195 and 199, the only two requests in this category, were satisfactory. Special “I” Audio Recordings of All Intercepted Calls [74] Request 168 is for “all audio recorded”. [75] Bobby Sangar, the RCMP wire room supervisor for Project Khemistry, testified that each day that telephone calls wereintercepted pursuant to the wiretap authorizations issued in this case, the calls would be reviewed by a small team of police officers. Theofficers would identify calls which had relevance to the investigation and label them “pertinent”.

Pertinent calls would include calls withcontent relating to drug trafficking, proceeds of crime, weapons, and travel plans, for example. Pertinent calls would also include callsuseful for voice identification or which were made at a time when a participant in the call was being surveilled by police. This is not anexhaustive list of the characteristics of a “pertinent” call. Calls not identified as pertinent were labeled “non-pertinent”. As time passedand the investigation matured, the original classification of a call could be amended.

Generally, despite an amendment, the ability toidentify the original classification was preserved. [76] I understand that a written narrative log of all calls, both pertinent and non-pertinent, was also created and that document hasbeen disclosed. The Crown has also disclosed a digital recording of all pertinent calls. It has not, however, disclosed a digital recordingof any non-pertinent calls. The accused seek disclosure of a digital recording of all non-pertinent calls. [77] The Crown justified its refusal of such disclosure on the basis that the non-pertinent calls are not relevant.

The Crownsubmitted that it is entitled to rely on the classification made by the monitoring officers as to relevance. In that regard Mr. Hrabcak citedR v. Siemens (1998) 1998 ABCA 1 , 122 C.C.C. (3d) 552 (Alta C.A.) where the Court said: We see no need for Crown counsel to personally spend days or weeks listening to lengthy tapes, or inspecting documents and otherevidence to fulfil the duty of disclosure.

Crown counsel is entitled to rely on information provided to him or her by police officers andother staff members regarding the content of documents, especially those considered to have no relevance to proceedings. [78] I note that the circumstances here are somewhat different than in Siemens. The concern in that case was that some of thecalls not disclosed involved third parties who might have an objection to their disclosure.

That basis of objection was not raised in thiscase. [79] The accused submit that they should not be obliged to accept the classification of the monitoring officers as establishing theirrelevance of calls the officers labeled “non-pertinent”. Cpl. Sangar agreed in cross-examination that the goal of the exercise of themonitoring officers is “to accumulate evidence that would incriminate the suspects”.

His answer did not engender confidence that calls,the content of which might assist the accused in their defence, would have been labeled “pertinent”. [80] There is no suggestion that the provision of the requested recording would be technically difficult or onerous. [81] During the argument of this application Mr. Hrabcak raised another concern and proposed a procedure for overcoming it. Itake his doing so as implicitly involving a concession of Mr. Renouf’s point that the monitoring officer’s determination as to pertinenceshould not be taken as a final determination of relevance. [82] Mr.

Hrabcak identified a general concern which could arise in all cases of this nature. The intercepted calls could includecalls the content of which would be protected by informer privilege. It could be that the police classification of a call as “non-pertinent”was on the basis that whether relevant or not, it was subject to informer privilege.

If all calls except those subject to informer privilegewere disclosed, those subject to informer privilege would be identified and it would conceivably be possible for a person interested indoing so to determine the identity of a police informer or significantly reduce the size of the pool of those who might be police informers.This risk could be increased given that the logs listing all calls have been disclosed. [83] To overcome this concern, Mr.

Hrabcak proposed that the Crown select a subset of non-pertinent calls which would includecalls to which informer privilege might attach, if there are any, and submit them for review by the Court in a Crown ex parteapplication. The Court would determine whether the calls in the submitted subset should be held from disclosure either on the basis ofirrelevance or informer privilege. The Court’s ruling would be sealed. The public announcement of the ruling would be as to which callsin the subset, if any, would be ordered disclosed.

The public announcement of the ruling would not indicate which calls were withheldfrom disclosure as irrelevant and which, if any, were withheld on the basis of informer privilege. Assuming the non-disclosure of somecalls was upheld, the non-disclosure would not compromise the protection of informer privilege because it would not be possible foranyone to know whether informer privilege figured into the ruling. [84] Defence counsel was not prepared to concede that such a process should be ordered. Neither did they articulate any reason foropposing it.

[85] In my view the Court should cooperate with any reasonable measure the Crown, in seeking to protect informer privilege,wishes to have the Court undertake. I have no basis upon which to conclude that Mr. Hrabcak’s proposed process is not such areasonable measure. [86] I order disclosure of an audio recording of all intercepted calls subject to the prior completion of the process Mr. Hrabcaksuggested. I invite counsel to address the arrangements which will be necessary for undertaking that process.

Wire Room Instruction Manuals [87] The defence in Request 170 seeks disclosure of “User and instruction manuals and guides for equipment in the wire room”. The Crown responded that the manufacturer of the wire room equipment has a proprietary interest in the manuals. The accuracy of thatrepresentation was not disputed. I infer that neither the police nor the Crown is at liberty to disclose the manuals. There was asuggestion that the manufacturer might consent to the disclosure of some parts of the materials, but the Crown does not accept that it isobliged to make the request.

In these circumstances, if the accused wish to pursue the point, an O’Connor application will be necessary. I decline to order the disclosure requested in Request 170. [88] In Request 203 the accused sought disclosure of materials provided to Project Khemistry investigators at training sessions inrelation to the wire room equipment. Mr. Hrabcak advised that though there were such training sessions, there were no such materialsand that he considered the request answered. That appears to be accurate. I dismiss the application of a disclosure order in respect ofRequest 203.

Previous Authorizations Requiring Live Visual Surveillance [89] Wire Tap Authorization 1765B, as proposed in Cpl. Palfy’s affidavit and as granted, authorized the interception of the privatecommunications of the persons named in the order at places listed in the order. The list of places included, in para. 4(e)(i)(3), theEdmonton Remand Centre. One of the terms and conditions of the order governed interception of calls at the Remand Centre. Para. 6(c)(ii) provided: Any telecommunication intercepted from or in an in Custody Location in paragraph 4(

e) shall be accompanied by live audio monitoringand where practicable, by live visual surveillance, and interception of a communication shall be discontinued once it has been determinedthat none of the persons named in paragraph 3(

a) is a party to it. The identity of any of the persons named in paragraph 3(

a) may bedetermined by selective monitoring, voice identification, and/or physical surveillance. If any person telephones his/her legal counselthen interception will cease immediately. [90] Request 174 is: Regarding live visual surveillance, all previous authorizations where live visual surveillance at in custody locations has been required, orrequired if practicable.

Please provide authorization clause, police agency, in custody location, and where live visual surveillanceoccurred, and how the information was recorded and communicated to the wire room monitors. [91] I understand this disclosure is sought in order to support a defence position that the RCMP knew when they proposedsurveillance of persons making calls at the Remand Centre that this could not be accommodated by Remand Centre staff.

I have beenadvised that the defence will call the evidence of a witness from the Alberta Solicitor General’s Department in this connection. [92] I can find no express representation in Cpl. Palfy’s affidavit to the effect that surveillance was possible at the Remand Centre.

The defence position will be, I expect, that the representation is to be inferred from the inclusion of the requirement in the proposedorder. [93] The Crown has refused the requested disclosure on the basis that it is a request for wiretap authorizations, and informationabout their implementation, unrelated to Project Khemistry and therefore irrelevant. The Crown also notes that compliance with therequest would be practically difficult if not impossible. It would require reviewing all previous wiretap authorizations which wouldrequire obtaining unsealing orders in each case. [94] I agree with the Crown.

This request clearly is not for anything used in or arising out of the investigation which led to thecharges before the Court. It is a request that the Crown undertake the preparation of a historical analysis of materials clearly unrelated tothis investigation on the chance that they might provide support for a gestational defence theory. It is an impractical and unreasonablerequest. I dismiss the application for an order requiring that the Crown provide the requested disclosure.

Meaningful Disclosure [95] In this category, in Request 191, the accused seek disclosure of an “inventory of documents the Crown refuses to provide”. Inthis context the defence seeks, in effect, an order imposing something very similar to the civil litigation disclosure requirement.

TheAlberta Rules of Court, Rule 5.6, which governs the content of the affidavit of records which every party to civil litigation must serve,requires first that the existence of all relevant and material records must be disclosed, and second that where the party objects toproducing a relevant record, the party must identify the document and state the grounds for the objection. [96] The accused cited R v. Laporte (1993) (SK CA), 84 C.C.C. (3rd) 343 (Sask. C.A.) and ChapelstoneDevelopments Inc. v.

Canada (2004) 2004 NBCA 96 , 191 C.C.C. (3d) 152 (NBCA) as examples of cases where such arequirement was imposed in a criminal context. [97] In my view, however, this aspect of the civil disclosure process is not applicable in the criminal context. The Crown’sStinchcombe disclosure obligation is to disclose everything in its possession that is relevant and not privileged.

Once the Crown takesthe position that it has done so, it cannot be required to justify the non-disclosure of anything further unless the defence establishes abasis for the Court to conclude that further potentially relevant material exists. (R v. Chaplin (SCC), [1995] 1 S.C.R.

727 (per Sopinka J. at para. 30). At para. 32 of that case, Sopinka J. noted: . . . [T]he requirement that the defence provide a basis for its demand for further production serves to preclude speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming disclosure requests. In cases involving wiretaps, such as this appeal, this is particularly important.

Fishing expeditions and conjecture must be separated from legitimate requests for disclosure. [ 98 ] As I read the two cases cited by the accused, an “inventory” procedure was recommended for use in the resolution of a dispute which had arisen as to whether documents acknowledged to exist were disclosable.

It was not suggested in either case that a general obligation to list all relevant documents on which privilege is claimed should be imposed on the Crown. [ 99 ] I dismiss the application for an order requiring the Crown to provide the disclosure requested in Request 191. [ 100 ] The only remaining disclosure request is Request 201 which relates to the disclosure in electronic format of documents which the Crown possesses in electronic format. As I understand it, after the clarification as to what was being requested, the Crown agreed that this request was appropriate.

Indeed I understood the Crown to indicate that it had already complied with it. I understand that no order is required. Heard on October 8, 9, 10, 15, 16, and November 14, 2013. Dated at the City of Edmonton, Alberta this 29 th day of November 2013. B.R. Burrows J.C.Q.B.A. Appearances: Dennis Hrabcak for the Crown Simon Renouf, Q.C., Julia Renouf and Adam Badari for Steven Daniel Whipple Clayton Rice and Tara Hayes for Jonathan Mark Rivera Aldaba Gregory Lazin for Jason Clarke Croft Aleksandra Simić and Alexandra Seaman for Wassime Rahime