R v Barros, 2016 ABQB 243

Court of Queen ’ s Bench of Alberta Citation: R v Barros, 2016 ABQB 243 Date: 20160429 Docket: 050551845Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Ross Barros Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Introduction [ 1 ] The Accused stands charged with the following two offences: 1. That he, between the 7 th day of March, 2005, and the 12 th day of May, 2005, both dates inclusive, at or near Edmonton, Alberta,

did unlawfully and wilfully attempt to obstruct, pervert or defeat the course of justice by taking investigative steps to identify aconfidential police source for the purpose of interfering with criminal proceedings against Irfan Qureshi, contrary to Section 139(2) ofthe Criminal Code of Canada. 2.

That he, on or about the 6th day of May, 2005, at or near Edmonton, Alberta, did, without reasonable justification or excuse andwith intent to obtain an end to criminal proceedings against Irfan Qureshi, by threats, accusations, menace or violence induce or attemptto induce detective Kevin Brezinski to take steps to cease criminal proceedings against Irfan Qureshi, thereby committing extortion,contrary to section 346(1.1)(

B) of the Criminal Code of Canada. [2] Originally the docket contained a third count namely a charge of extortion as against a group of named criminal associates,but the Accused was found not guilty on Count Three in his first trial, and the Supreme Court of Canada upheld that acquittal in R vBarros, 2011 SCC 51. [3] The Crown called two witnesses. An Agreed Statement of Admissions was entered as Exhibit 5, and a series of itemspresented to the Court were entered as additional exhibits by the Crown.

The Accused did not testify. [4] On March 7, 2005, Edmonton Police executed a CDSA search warrant and arrested Irfan Qureshi (“Qureshi”). The leadofficer in that investigation was Detective Brezinski, now Inspector Brezinski (“Brezinski”). Brezinski was a detective at that time in2005 with the Integrated Response to Organized Crime Unit (“IROC”), and had had extensive dealings with sources or confidentialinformants since 1999. [5] Qureshi was represented by now deceased defence counsel, Sid Tarrabain (“Tarrabain”).

On April 12, 2005, Tarrabainretained the private investigation services of a veteran City of Edmonton (“EPS”) police officer recently retired from the force, RossBarros (“the Accused”), to analyze the investigation and determine the validity of the Information to Obtain the Search Warrant. [6] Brezinski recommended bail initially for Qureshi thru the Crown agent police officer speaking to bail before the presidingJustice of the Peace. However the Justice of the Peace declined to release Quereshi.

Following this application, the Crown reversed itsposition and asked for a denial of bail when a review application was made to the Court of Queen’s Bench. [7] These two charges against the Accused essentially arise out of a series of conversations between him and Brezinski on May6, 2005, the day when Qureshi’s bail review application was before the Court of Queen’s Bench. A second police officer, DetectiveKelly Krewenchuk (“Krewenchuk”) was, at the Accused’s request, present as a witness at a golf course meeting that day between theAccused and Brezinski.

The Law The Obstruction of Justice Charge [8] 139(2) Everyone who wilfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert ordefeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. [9] The basis of the charge in this case is not just that the Accused sought the name of the police informer, which is lawfulaccording to R v Barros 2011 SCC 51, which involved the same the Accused on these same charges, plus one other that the Accusedwas acquitted on.

The Crown now alleges that the Accused’s discovery of the Crown informant was “for the purpose of interfering withcriminal proceedings”, that is to have the charges against Qureshi dropped. This, if established beyond a reasonable doubt, was notinformation gathering for a lawful purpose. [10] The

Section 139 obstruction charge describes a crime that is complete upon proof of an attempt, without the necessity ofsuccess or actual completion: R. v. Hearn, (SCC), [1989] 2 SCR 1180 (SCC). While the offence is framed broadly, thenecessary limit is found in the obligation of the Crown to prove the mental element: R. v.

Beaudry, 2007 SCC 5, [2007] 1 SCR 190(SCC), at paragraph 52. [11] As to the relationship between the obstruction charge and the defence’s right to make full answer and defence, the SupremeCourt of Canada stated at paragraph 41 from Barros that: 41 Whether an investigation has crossed a line into obstruction of justice must be determined on a case-by-case evaluation of thetotality of circumstances, which may include the methods and purpose of the defence investigation, and the use to which any informationobtained is put.

If all the elements of the offence of obstruction are met, a bald assertion that the investigation furthers the mounting of afull answer and defence will not excuse otherwise unlawful conduct.

The Extortion Charge [12] Section 346(1) of the Criminal Code states that: Everyone commits extortion who, without reasonable justification or excuseand with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or nothe is the person threatened, the Accused or menaced or to whom violence is shown, to do anything or cause anything to be done. [13] Extortion requires the Crown to establish beyond a reasonable doubt (

a) that the Accused has induced or attempted to inducesomeone to do something or to cause something to be done; (

b) that the Accused has used threats, accusations, menaces or violence; (c)that he or she has done so with the intention of obtaining something by the use of threats; and (

d) that either the use of the threats or the

making of the demand for the thing sought to be obtained was without reasonable justification or excuse: see R. v. Natarelli, (SCC), [1967] SCR 539 (SCC); D. Watt, Watt’s Manual of Criminal Jury Instructions (2005). (

a) The Conduct of the Accused [14] First the Crown must identify the “something” sought by the Accused by alleged threats or menaces, and the person fromwhom this was sought. This indictment identifies the “something” as obtaining “an end to criminal proceedings against Irfan Qureshi”,and accuses Barros of seeking to obtain this by inducing or attempting “to induce Brezinski to take steps” to withdraw the chargesagainst Qureshi. This is alleged to have happened during the golf course meeting of May 6, 2005 (

b) Threats by the Accused [15] The Crown concedes that the Accused did not come right out and say that if the police did not drop the charges againstQureshi, the “source” would suffer bad consequences. On the other hand, the law does not require the person of extortion to act clumsilyand without subtlety.

What is required is that the message be sent in words definite enough to convey to a person of ordinary intelligencein the position of Brezinski, taking into account his shared police background with the Accused, a threat of harm to his “secret source” ifthe prosecution was not ended. [16] Extortion criminalizes intimidation and interference with freedom of choice. Accordingly a veiled reference may constitute athreat if it is sufficient, in light of all the circumstances, to convey to the complainant the consequences which he or she fears or wouldprefer to avoid: R. v. McClure (1957), (MB CA), 22 WWR 167 (Man.

C.A.), at p. 172. The courts have adopted asimilar contextual

interpretation elsewhere: R. v. Hodson, 2001 ABCA 111, 92 Alta. L.R. (3d) 262 (Alta. CA), at paragraphs 11-13; R. c.Pelletier (1992), (QC CA), 71 CCC (3d) 438 (Que. CA). [17] The question is, as a matter of law, what would a reasonable person in the position of Brezinski understand? (

c) The Intent of the Accused [18] The Crown must prove beyond a reasonable doubt that the Accused intended his declaration of knowledge of the identity ofthe confidential informer to influence police decision making. (

d) Reasonable Justification or Excuse [19] The legal test for extortion requires a court to delve below the surface of the exchanges between the Accused and those whomhe or she is accused of threatening, particularly where, as here, the individuals come from the same occupational background.

Much thatis understood between them need not be stated explicitly The Trial Evidence Inspector Brezinski’s Evidence [20] Brezinski explained that “source” and “confidential informant” are interchangeable terms referring to persons who voluntarilyprovide information to police, but who are not directed by police, and who do not want to be identified or to testify in Court.

On the otherhand, an “agent” Brezinski explained is directed by police to perform certain acts, are identified by police, and do testify in Court. [21] The Accused spoke to Brezinski on his cell phone at 6:42 a.m. at his home on May 6, 2005, and arranged a meeting for thatafternoon to discuss the Qureshi and Ajaj files.

Brezinski says that the Accused advised that he had been hired by Tarrabain to analyseboth files, that he had met with Brezinski’s source yesterday and knew 100% that was the Detective’s source. [22] Brezinski also testified that the Accused said on the phone, “this is bad for you and bad for me”, that Tarrabain did not want toknow the identity of the source, and that Brezinski would have to trust him. Brezinski told him he would be very surprised if he knew hissource, and “laughed it off”. They made arrangements to meet at a Tim Hortons at 2:30 that afternoon.

The Accused asked Brezinski tobring someone else along and they agreed to bring fellow police officer, Krewenchuk, as he was golfing with Brezinski that morning. [23] At 8:02 a.m., the Accused called Brezinski again to move the scheduled meeting earlier for that morning, so that it wouldprecede the pending bail application, as that was important to Tarrabain and Quereshi who was in custody.

It was mutually agreed tomeet at 8:45 a.m. at the golf course before the scheduled 9:00 a.m. golf game. [24] Once they arrived at the clubhouse and sat down, according to Brezinski, the Accused indicated that he had been hired byTarrabain to review the file and identify Brezinski’s source, that he had been meeting with 15 to 20 members of the Qureshi group, manyof whom were Tarrabain’s clients, and in the course of his meetings, he had discovered 100% who the source was. [25] After the Accused named the source, and named some of the 15 to 20 individuals specifically, he described how he wentabout discovering Brezinski’s source amongst this group.

Brezinski testified that he was extremely concerned about the tactics that theAccused was employing. [26] Brezinski was upset that the Accused had gathered 15 to 20 relatively serious criminals in a room together and had asked themto provide their name and phone numbers in writing in an attempt to identify who the confidential informant/source was. Brezinski then

testified that he told the Accused that his actions in putting these people into this room and trying to identify the confidential source could lead to someone being seriously injured or killed.

Brezinski tried to appeal to the Accused’s senses as a former police officer who had previously dealt with confidential informants. [ 27 ] In response the Accused, according to Brezinski’s evidence, said that trying to identify a confidential source happens all the time, and further that in his experience, the Accused mentioned something to the effect that when a source was discovered, he would have to withdraw the charges and that was something that happened to him in the past. [ 28 ] The Accused according to Brezinski’s evidence relayed his experience in an Andy Polo file, where apparently some information in a police disclosure or in an Information to Obtain (“ITO”), may have revealed one source, and in that case the Accused believed that the charges were withdrawn or stayed.

According to Brezinski, the Accused was basically trying to justify his position as to why he was doing what he was doing. [ 29 ] Brezinski then testified that he told the Accused at that meeting that what he was doing and the tactics that he was using to uncover who the source was, were extortion and obstructing justice. [ 30 ] The Accused denied that that was what he was doing, and that he was hired by Tarrabain to analyze the file and identify the confidential source, at which point Brezinski told him that Tarrabain should be reported to the Law Society, or something to that effect.

The Accused then realized that he was being serious when he classified his conduct as criminal in nature, and the accused according to Brezinski, then back tracked and said Tarrabain had not wanted him to identify the source, but to simply analyze the file. [ 31 ] At this point in the meeting, matters were getting relatively heated, although he told the Accused that he had no problem with people identifying inconsistencies in his work or in the investigation itself, or to attack the credibility of the confidential source or the information to obtain documents. [ 32 ] In elaborating with respect to the problem he had with the Accused’s conduct of the investigation, Brezinski testified that if he was one of the 15 or 20 people who was the confidential source, he certainly would not want to write his name and number to allow his cell phone records to be searched, or to be cross-referenced against the others, and he indicated this to the Accused. [ 33 ] In response to this, the Accused as reported by Brezinski, said that he was doing a job for Tarrabain, that neither Tarrabain nor Qureshi wanted to know who the source was, and that the Accused would simply speak to the source directly. [ 34 ] Brezinski also did not think it was appropriate for the Accused to require 15 to 20 individuals to write their cell phone numbers down, and to provide their cell phone records, and if they didn’t the Accused was going to have them do a polygraph. [ 35 ] When the Accused specifically named the confidential source and Brezinski denied that that individual was his confidential source, Brezinski became upset because he felt the Accused was interrogating him.

At that point Brezinski testified that he told the Accused that as a policeman and drug detective he could not understand how the Accused could go to the “dark side” like that, knowing the potential harm that could come to the confidential informant. [ 36 ] According to Brezinski, Krewenchuk the third person who had been invited to take

part in the meeting said very little if anything during the course of the ten minutes. [ 37 ] Prior to the actual meeting after the Accused’s second phone call to his home that morning, Brezinski testified that he spoke to his supervisor and reviewed with the supervisor what to do if a confidential source was identified during the course of the meeting. He was told by the supervisor Staff Sgt.

Sauve that if the Accused had an issue, or thinks he knows who the source was, to document it and send it to the Department of Justice, which advice Brezinski says he passed on to the Accused during the latter part of the meeting. [ 38 ] According to Brezinski, the Accused’s response was that he would not document that and send it to the Department of Justice. Rather he would be forced to write a report and give it to Tarrabain and wash his hands of it.

Brezinski’s response to this was that he was going to document everything that was said at the meeting and he would be forwarding that information to the Department of Justice, which he meant was the Special Prosecutions

Section of the Provincial Crown as opposed to the Federal Crown. [ 39 ] From there, according to Brezinski, the Accused asked him what would happen if the group offered to take certain guns off the street and surrender the weapons to the police, to which Brezinski indicated he was not interested.

It was Brezinski’s belief that these guns were being offered for a withdrawal of the criminal charges against Quereshi, which according to Brezinski was clearly the main purpose of the entire meeting. [ 40 ] Brezinski identified in Court a small piece of cardboard paper which contained the Accused’s handwriting, which Brezinski recognized. [ 41 ] As the three of them got up to leave the meeting, Brezinski testified that he made one last effort to try to appeal to the Accused’s senses telling him that he was a policeman for 27 years, had a good family, wife and children and questioned the Accused as to why he was doing this.

Brezinski testified that the Accused’s response was ‘what do you expect me to do the way I was treated by the police service?’ Brezinski took this to mean that the Accused had left the EPS on bad terms, having been moved against his choice from the drug unit to the communications unit, before ultimately resigning. [ 42 ] Brezinski then told the Accused to do whatever he thought was right, at which point the Accused asked if this ended their friendship, to which Brezinski replied “you bet”.

These were the last words that were exchanged between the two of them at the meeting. [ 43 ] After the parties all left the meeting, Brezinski testified that he went to make a phone call at the club house to his supervisor directly afterwards. Brezinski outlined to Staff Sgt. Sauve what transpired in the meeting, in a telephone call that took approximately three minutes. He then went to his tee time at the golf course which was approximately 9:15 a.m., and he made it on time. Krewenchuk

said he played 18 holes of golf, following which, Brezinski went home and made notes of the conversation and meeting. He also contacted certain individuals that the Accused had named during the course of the meeting to advise them that their names had been mentioned by the Accused. Detective Krewenchuk’s Evidence [ 44 ] Krewenchuk was the only other Crown witness called to testify.

He was the third party that the Accused had suggested come to the meeting with him and Brezinski on May 6, 2005. [ 45 ] Krewenchuk testified that the Accused told them during the course of the meeting that he knew 100% who Brezinski’s confidential source was, and he named the source.

Krewenchuk described how Brezinski denied that that was the source and laughed it off. [ 46 ] Krewenchuk testified that the Accused indicated he had gathered ten individuals together and asked them to provide their names, cell phone numbers and that he had the individuals compare the phone numbers to know that they were accurate numbers for each individual.

If they were unwilling to provide their name and cell phone number, he would ask them to take a polygraph test as well. [ 47 ] Krewenchuk also testified that the Accused referred to his notes written on the small cardboard piece of paper throughout the meeting. Krewenchuk indicated that the Accused had looked at the confidential informant’s phone records and he knew that the informant had contacted Brezinski on four specific dates relevant to the investigation, although the dates meant nothing to Krewenchuk.

The Accused knew that this source also did not show up to the second meeting that he had with the group of ten individuals, and that the Accused indicated that he had confronted this individual as being the confidential source personally. [ 48 ] Krewenchuk in his evidence also recalled Brezinski’s words about Tarrabain and “the Law Board” or Law Society, in reference to extortion and obstructing justice allegations levied against the Accused by Brezinski. [ 49 ] Krewenchuk testified that the Accused then clarified by talking about his previous experience referring to an individual by the name of Andy Polo, and to a previous RCMP investigation where in reviewing the report, it was obvious that you could identify one of two people as being a source in that investigation by just reading the report. [ 50 ] Krewenchuk was unfamiliar with the Andy Polo investigation, and felt that the Accused was just using that case to make a comparison to the present investigation that Brezinski was involved in. [ 51 ] By the end of the meeting Brezinski was visibly upset, when he said to the Accused that he had to be careful with what he was doing because if the source is identified it could result in someone being killed, and if the wrong person was identified as a source, they were at risk of being killed. [ 52 ] Krewenchuk testified that Brezinski then tried to switch the meeting to a different topic and asked the Accused why he was doing this.

Brezinski told the Accused that he used to respect him as a detective and as a friend, and asked the Accused why had he gone to the dark side. [ 53 ] The Accused accordingly to Krewenchuk replied that it had to do with his relationship with EPS and the way he was treated, that all he knew how to be was an investigator and that was what he was doing. [ 54 ] The Accused then said that neither Qureshi nor Tarrabain wanted to know who the source was, and only the associates in the group of ten wanted to know because they wanted to cut their ties with this person.

The Accused said according to Krewenchuk that he was not going to tell anybody who the source was, but he would write a report to summarize what had gone on and would provide that report to Tarrabain, at which point Brezinski told the Accused that he would realize that he had not discovered the source. [ 55 ] The Accused also said that in his experience that he at times had to withdraw charges in some of the investigations he had solely because the source could be identified, and that this was not out of the ordinary.

The Accused handed Krewenchuk the small piece of paper he was holding and referenced a line written there, but Krewenchuk could not make out what was written there. [ 56 ] Krewenchuk testified that the Accused then talked about providing Brezinski with guns, and that in the past individuals have provided weapons off the street to deal with a potential reduction in charges or no charges being laid, but that Brezinski was not interested in receiving any guns from the group. [ 57 ] At the end of the meeting Krewenchuk testified that neither Brezinski nor the Accused shook hands with each other, but that he did shake hands with the Accused and indicated that they were still friends and could go golfing in the future. [ 58 ] Krewenchuk testified that he made no notes during the meeting and observed and listened, but started making notes after the 18 hole round of golf that afternoon.

After the meeting ended, Brezinski was on the phone for some time for approximately 20 minutes or so before their golf game began. Krewenchuk then three days later was asked to provide a witness statement with respect to the meeting when he came into work next, and he produced a three page statement dated May 9, 2005. Analysis The Personal Relationship between the Detectives and the Accused

[ 59 ] The Supreme Court of Canada commented in Barros , at paragraph 74 that the first trial judge in this case erred in law by failing to consider the issue of the threats or menaces in the context of the conduct of the Accused in its entirety, and in particular, of the longstanding relationship between the two men. [ 60 ] In that regard, the Accused and Brezinski had worked closely together previously. Brezinski saw the Accused as a respected mentor, and the Accused respected Brezinski.

The Accused could obviously contact Brezinski on short notice at home on his cell phone very early in the morning on his day off and potentially interrupt a previously scheduled 18 hole golf game to arrange an immediate meeting.

This is not something an ordinary private investigator would likely have been able to accomplish. [ 61 ] It is clear to me that there was a personal long standing relationship and friendship between the Accused and Brezinski, such that Brezinski seemed to take great personal offence that the Accused was now a private investigator acting to free criminals. [ 62 ] While Brezinski never comes out to exactly state this, this appears, at least in part, to be the basis for Brezinski’s personal comments about the Accused’s family and the Accused going over to the “dark side”.

At times as the May 6, 2005 meeting ends, Brezinski seems more concerned about the Accused’s changed behaviour and attitude from when he was a police officer, and the affect it will have on his wife and family, than he is about any threat or menace posed by the Accused’s actions to his drug investigation. [ 63 ] It was clear that Brezinski assumed that the purpose of everything the Accused did in respect of this case was to get the charges dropped or stayed as against Qureshi.

Brezinski is understandably very concerned with the Accused’s investigative techniques with respect to a number of persons the Accused has been interrogating. Importantly though this issue has already been addressed at least in part by the Accused’s acquittal on the original count three, the extortion charge as against a group of named criminal associates. [ 64 ] Additionally the Supreme Court of Canada has pointed out, it is not a crime per se to seek the identity of an informant.

It is only a crime when the purpose is to interfere with criminal proceedings, which in this case was ultimately to have the charges against Qureshi dropped or stayed. [ 65 ] While I conclude that the Crown has advanced a strong case that the purpose of the Accused’s actions in this case was to have the charges against Qureshi dropped, this is not the only reasonable inference that can be drawn from the Accused’s actions during the course of the May 6, 2005 meeting. [ 66 ] The Accused was conducting an otherwise lawful investigation on behalf of his employer in order for Quereshi to make full answer and defence to serious charges he was facing.

Brezinski acknowledged that he had no problem with the Accused testing the information contained in the ITO, and the source information contained therein as well to test the credibility of the source. In my view it is obvious that the best way to test credibility, is to know or think you know, who the source is. [ 67 ] The Accused said in setting up the meeting that he believed that he knew who the source was and it was very important they meet as soon as possible.

The Accused said to Brezinski “this was bad for you, and bad for me”, but that Tarrabain the lawyer (and later during the meeting that Quereshi) both did not want to know who the source was. [ 68 ] What is also clear in the Accused’s written reports to his employer Tarrabain about the meeting is they contained nothing about a stay or withdrawal of charges, nor is there any mention of bail.

By the time the report was written, Qureshi had already been released as a result of the bail review hearing. [ 69 ] While the Crown’s key witness Brezinski was certain that the Accused was interfering with, and taking steps to cause the criminal proceedings to cease against Quereshi, thereby committing obstruction of justice and extortion, I am satisfied that there is another reasonable possibility namely that the Accused was attempting to advise his good friend and former close colleague of the identity of his confidential informant in order that the confidential informant’s safety could be protected by Brezinski. [ 70 ] This is essentially what the Accused writes in his reports to Tarrabain about his meeting with Brezinski, which reports would have been in the Accused’s mind at the time would always have remained confidential. [ 71 ] These reports would normally be viewed as self-serving and/or after the fact statements, however in this case they are actually reliable because they were solicitor/client private reports written by the Accused with no expectation that they would end up with the police.

Tarrabain had fought to keep the reports privileged: R v Tarrabain, O’Bryne & Company , 2006 ABQB 14 . [ 72 ] Brezinski himself acknowledges that he would appreciate someone telling him who his source was.

The Accused indicates in his report to Tarrabain that no other private investigator would make the effort to let the lead investigator know that his source had been identified, which is also very likely the case. [ 73 ] These factors raise a reasonable doubt in my mind as to the Accused’s guilt because the Accused may have felt duty bound or obliged to bring this knowledge to the attention of his good friend the investigating officer Brezinski. Brezinski needed to know this information in order to protect the safety or life of the source, and neither the lawyer or his client wanted to know the source’s identity.

This seems to me to be a plausible reason why the meeting had to take place so quickly that very day and morning, in part because there was no other reason why the meeting had to occur immediately. Was there a Meeting of the Minds During the Course of the Meeting [ 74 ] Brezinski is seemingly certain that the Accused was guilty of obstruction and extortion because of the Accused’s references to prior investigations. Krewenchuk, on the other hand, thought the Accused was just giving background or making anecdotal references in talking about these prior investigations.

Krewenchuk acknowledges that he still considers the Accused to be a friend.

[ 75 ] The Accused arrived at the meeting with notes of some type written on a small cardboard piece of paper, which contained nothing about any stay of proceedings or withdrawal of charges. [ 76 ] Neither Brezinski nor Krewenchuk seemed to have the same recollection or impression as to what the Accused said in this regard. Both Brezinski and Krewenchuk personally also had a very limited, or different, understanding or knowledge about these previous investigations.

I find that there is obviously a big difference in the impression being left by the Accused as between these two experienced investigators. [ 77 ] The Accused made an offer at the end of the meeting to turn over guns from the group of criminal associates either for bail, or for some unspecified consideration, which I also conclude is important in this case. The Accused never even indirectly suggested a withdrawal or stay of Qureshi’s charges in exchange for getting guns off the street, or for any other reason either, during the short May 6, 2005 meeting.

Any offer for bail would have been beyond Brezinski’s part to deliver since he already recommended bail in the first instance before the Justice of the Peace, who had turned down bail for Qureshi. From Brezinski’s evidence, no other consideration could flow from turning over guns from the group other than the dropping/staying of charges, but Brezinski acknowledged that would have been a ridiculously one sided proposition. [ 78 ] The evidence is also clear that no one in charge of an investigation would reduce charges or stay charges simply to get some guns off the street in a matter of Qureshi’s seriousness.

The evidence is clear that Brezinski had no power to stay or withdraw any charges. Both of these aspects of drug investigations would have been well known to both Brezinski and to the Accused, who both had a long involvement in the criminal justice system. [ 79 ] Although Brezinski was certain that the Accused wanted the charges stayed or withdrawn and believed that that was the intention of the whole meeting and investigation that the Accused was carrying out, he never tried to get the Accused to admit or acknowledge this at any time.

For example when the Accused offered to take guns off the street in exchange for something, Brezinski never tried to get the Accused to say what exactly he wanted in exchange. I find all this unusual for a skilled experienced investigator convinced that the Accused was committing serious criminal acts of obstruction and extortion in his presence at the time. [ 80 ] Furthermore the only specific case that is mentioned by the accused at the May 6, 2005 meeting about charges being withdrawn or stayed was that of Andy Polo. [ 81 ] Defence counsel has provided the Court with the B.C.

Court of Appeal decision in R v Illes , 2007 BCCA 125 at paragraphs 109 to 114 in which one Michael Maze is described as a confidential informant in the criminal proceedings against Andy Polo. Mr. Maze was ultimately determined to be a police agent and not a confidential informant.

Brezinski thought the Polo case was about a stay of proceedings, and does not remember Maze being mentioned in the meeting, but Krewenchuk does recall Maze being referred to by the Accused. [ 82 ] Regardless of what the Andy Polo case meant to Brezinski or Krewenchuk, it is important to note the Accused was referring to a case in which a police agent, and not a confidential informant, was involved.

A police agent expects to have his/her identity revealed and expects to testify in Court, whereas a confidential informant clearly wants to remain unidentified at all times. [ 83 ] The Crown argues that the Accused shared with Brezinski and Krewenchuk common knowledge about certain previous investigations that were withdrawal or stayed when the identity of the informant was revealed.

However I conclude in this regard that there was no meeting of the minds as to what the Accused allegedly said to Brezinski and Krewenchuk, let alone what the Accused meant, about these certain prior specific investigations during the May 6, 2005 meeting. Inconsistencies in the Evidence of Detectives Brezinski and Krewenchuk [ 84 ] Another problem in the Crown’s case is that a great deal of this case centers around the 8:45 a.m.

May 6 th , 2005 meeting between the Accused, Brezinski and Krewenchuk, but both Brezinski and Krewenchuk testify about the meeting largely from his own memory of events that occurred almost ten years ago. When Brezinski and Krewenchuk do eventually make notes, it is after their 18 hole golf game that is not completed until the afternoon. [ 85 ] Krewenchuk basically listened throughout the meeting and did not participate actively or at all in the discussion.

Even though Krewenchuk was listening, presumably carefully, throughout the short meeting, his evidence varies in a number of details from that of Brezinski about the meeting. For example: a. Brezinski says 15-20 criminal associates were involved by the Accused in the group meetings, whereas Krewenchuk says ten people were involved; b. Brezinski says the Accused named five people at the meeting specifically, but Krewenchuk said the Accused named three people specifically; c.

Brezinski described the Accused as being interrogative, whereas Krewenchuk describes the Accused as being calm and Brezinski as being very upset; d. Brezinski says Tarrabain should report to the Law Society, but Krewenchuk says Brezinski referred to it as the law board; e. Brezinski says the Accused would report who the source was to Tarrabain, but Krewenchuk says the Accused said he would not report the identity of the source to anyone;

f. Brezinski claims the Accused was backtracking in the face of his accusations against him, but Krewenchuk says the Accused was clarifying and just giving background; g. Brezinski doesn't remember anything about the name Maze, but Krewenchuk says Maze was brought up in conjunction with the Polo matter; h. Brezinski says the meeting lasted ten minutes, but Krewenchuk says it lasted 15-20 minutes; i.

Brezinski says he went to the clubhouse after the meeting to make a call for three minutes, but Krewenchuk says Brezinski went to his car and was on the phone for 20 minutes; [ 86 ] These are not in and of themselves major contradictions, and suggest that both Brezinski and Krewenchuk were trying to remember what happened, as opposed to putting together a joint version of what happened.

However they do reveal the danger of convicting the Accused primarily on the basis of somewhat conflicting evidence as to what transpired in a meeting, that occurred almost ten years ago prior to this trial, that was not recorded and in which no contemporaneous notes are made. [ 87 ] The trier of fact must be sure as to what transpired in that meeting with respect to the essential elements of the offences the Accused is charged with, and I cannot say that I am sure what was said based on the evidence before me. [ 88 ] This is regrettable and also important in the context of this trial given that Brezinski is already aware of the serious nature of the meeting.

Brezinski knows from the initial phone call that the Accused believes that he has identified his confidential source in a major investigation. Brezinski almost immediately realized the seriousness of such a development. He also phoned his supervisor Staff Sgt.

Sauve immediately after arranging the 8:45 a.m. meeting with the Accused to discuss with his supervisor what to do if a confidential source was actually identified, and again right after the meeting took place. [ 89 ] Yet despite this Brezinski attends the meeting with no notes, and no audio recorder, which Brezinski acknowledges in hindsight he should have had. [ 90 ] After the Accused suggested on his own accord that a third party be in attendance at the meeting, Brezinski contacted Krewenchuk, who he was scheduled to golf with, to be the third party.

But Brezinski does not tell Krewenchuk to be prepared to take any notes either, and Krewenchuk does not even bring note paper. In fact, it does not appear in the evidence that Krewenchuk knew about the importance of the meeting beforehand. [ 91 ] The Accused never asked or, even mentioned that Brezinski should cease criminal proceedings against Quereshi.

As for Brezinski’s belief that that was the only purpose for the Accused talking about prior police investigations he was involved in where criminal charges were dropped, I am not sure what was said by the Accused about these prior investigations given that there is some discrepancy between the evidence of Brezinski and Krewenchuk.

Krewenchuk’s evidence was very different from that of Brezinski’s with respect to the purpose in which the accused spoke of these prior investigations since Krewenchuk believed that the accused was clarifying or just giving background in referencing these prior investigations. [ 92 ] There is a major difference between clarifying and giving background which was what Krewenchuk thought the Accused was doing, and Brezinski’s impressions of what the Accused was doing by raising these prior investigations. [ 93 ] During the conversation Brezinski described himself as becoming upset only after the accused became interrogative, but Krewenchuk describes the Accused as being calm and Brezinski as being very upset. [ 94 ] While it is common ground that the Accused does offer to take guns off the street, it is unclear from Brezinski’s and Krewenchuk’s evidence what that offer was in exchange for. [ 95 ] Furthermore the evidence before me is clear that neither Brezinski, nor any other police officer, would ever have agreed to drop the serious criminal charges that Quereshi was facing in exchange for taking some guns off the street. [ 96 ] Brezinski said the Accused was going to report who his source was to Tarrabain, but Krewenchuk said the accused assured them that he would not report the identity of the source to anyone.

Brezinski’s version of what the Accused said about revealing the source was much more problematic for Brezinski’s investigation, than Krewenchuk’s version would have been. [ 97 ] The Crown points out that regardless of what the Accused or Tarrabain would have done to protect the identity of a confidential source, the identity of the confidential source would have been compromised if Qureshi had demanded that information from his lawyer Tarrabain.

Well this may well be the case, it is doubtful that the Accused would have ever been aware of this potential conflict of interest on Tarrabain’s part, so that it was most likely in the Accused’s mind it was he and he alone that controlled the identity of the source. [ 98 ] Even if I accept Brezinski’s evidence that the Accused was going to wash his hands of the matter and simply write a report to Tarrabain as to whom the source was, the evidence before me supports the view that the Accused was confident that Tarrabain was not going reveal the identity of the source. [ 99 ] These and other inconsistencies as between Brezinski and Krewenchuk about what the Accused said to them during this rather short meeting lead me to have a reasonable doubt as to what exactly took place during this critical meeting. [ 100 ] Accordingly while Brezinski’s

interpretation of the Accused’s actions and intentions were very clear to him, there is a reasonable doubt in my mind as to the Accused’s intention to obstruct justice, and to have the proceedings against Qureshi stopped though committing extortion.

The Accused Insisted that Another Detective be Present to Witness the Meeting [ 101 ] In this regard the Crown argues that accused persons do not always take the safest or smartest method of committing crimes, and I agree that this can be the case. [ 102 ] However in the present case, I conclude that it defies common sense and logic that an experienced former detective such as the Accused intended to commit the serious criminal offences of obstruction and extortion, after insisting on having another police officer attend the May 6, 2005 meeting, and then commit those criminal acts in the third party police detective Krewenchuk’s presence.

Conclusion [ 103 ] Extortion criminalizes intimidation and interference with Brezinski’s freedom of choice, but in this context the Accused’s references to other previous cases where a stay or withdrawal of charges resulted from the outing of a police informant did not seem to mean the same thing to Krewenchuk and Brezinski. [ 104 ] At other times references by the Accused to other investigations were seen as material to Brezinski, but just background narratives to Krewenchuk.

The Andy Polo case referenced by the Accused in the meeting dealt with a police agent whose identity was expected to be revealed in the normal course, which is unlike the present matter which involved revealing a confidential police informant. [ 105 ] These references to previous files and investigations by the Accused are the only possible acts of obstruction and extortion that occurred, and they are not sufficient in light of all of the facts and circumstances to convey any criminal intent on the part of the Accused to obstruct justice, or for Brezinski to fear the consequences of non-compliance with the alleged threat.

Brezinski was free to proceed in any manner in which he wished because the Accused was not going to reveal the source to either Tarrabain or Quereshi. Brezinski proceeded with his investigation, and Qureshi was subsequently convicted. [ 106 ] The meeting occurred almost ten years ago and obviously memories have faded. What Brezinski and Krewenchuk do now recall during the course of this ten minute very short meeting contain various inconsistencies.

I have a reasonable doubt as to whether there was ever a meeting of the minds between the two detectives and the Accused. [ 107 ] The lack of contemporaneous notes or any recording of the meeting, along with other reasons that I have described, lead me to conclude that it would be dangerous to enter convictions on obstruction and extortion charges based on what allegedly occurred during the course of that meeting according to Brezinski’s and Krewenchuk’s current evidence. [ 108 ] I do however wish to make it clear that none of these comments are meant to be overly critical of Brezinski or Krewenchuk, as they were both generally credible witnesses and overall were competent police detectives. [ 109 ] Finally it defies logic and common sense that an experienced police officer intent on committing the criminal offences of obstruction and extortion would insist on having another police officer attend the meeting, and then go about committing these criminal acts in the face of that police detective’s presence. [ 110 ] For these reasons, and for the other reasons that I have identified in my analysis of this case, I have a reasonable doubt as to the Accused’s guilt.

I conclude that the Crown has failed to prove the essential elements of obstruction of justice and extortion beyond a reasonable doubt. [ 111 ] I find the Accused not guilty of both counts remaining on the indictment namely that of obstruction of justice (count one), and extortion (count two). Heard on November 16 th to 26 th , 2015 Dated at the City of Edmonton, Alberta this 29th day of April, 2016. Donald Lee J.C.Q.B.A.

Appearances: Richard Tchir and Brendan Gaunt for the Crown Heresh Wolch, Q.C. and Lynn Rideout for the Accused