R v Eddy, 2016 ABQB 42

Court of Queen’s Bench of Alberta Citation: R v Eddy, 2016 ABQB 42 Date: 20160121 Docket: 120435839Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Denise Marie Eddy Accused Restriction on Publication Trial information in Absence of Jury – See the Criminal Code , section 648(1). Permission having been given to the jurors to separate, information concerning this portion of the trial must not be published, broadcast, or transmitted in any manner. NOTE: This decision is available from the court file, and it may be published after the jury retires to consider its verdict.

Editorial Notice: The restriction on publication ended February 4, 2016. _______________________________________________________ Reasons for Decision of the

Associate Chief Justice J.D. Rooke _______________________________________________________ I. Introduction . 4 II. The Charter Application and Supporting Documentation . 4 III. Witnesses . 5 IV. Analysis - Preliminary Issues . 6 A. Privacy in the Products of Non-Eddy Searches . 6 1. Ms. Eddy’s Position . 6 2. The Crown’s Position . 7 3. Analysis . 7 4. Conclusion . 9 B. Alleged Illegal Retention of Search Products . 9 1. Ms. Eddy’s Position . 9 2. Crown’s Position . 10 3. Analysis . 11 a. Criminal Code , s 489.1-490 do not Create Substantive Rights . 11 b. Ms.

Eddy Cannot Deny Crown Possession of Copies of the Disputed Evidence . 12 c. Failure to Prove Reports Were Late . 13 4. Conclusion . 14 V. Ms. Eddy’s Residence Search . 14 A. The Crown Lost Legal Detention of the Search Products . 14 1. Any Misstatement is Trivial 15 2. The Warrant to Detain Was Lawfully Issued . 15 3. Any Defect in Ongoing Seized Property Detention is Not a Charter Breach . 15 4. The Crown is Entitled to Copies of Document Material 15 5. Conclusion . 16 B. Eddy’s Address in the ITO Was Incorrect 16 C. Communication of Materials Seized from Russ Porisky was Illegal 16 1.

Transfer of Information Was an Illegal Warrantless Search . 16 2. Retention of the Porisky Sourced Information became Illegal 17 D. Ms. Eddy’s Address Was Obtained or Retained Illegally . 17 1. No Privacy Interest in Residential Address . 18 2. Only the First Disclosure and Associated Events are Relevant 18 3. No Issue with Production Order and Report to a Justice . 18 4. Ms. Eddy’s Address is Irrelevant as Unrelated to the Alleged Misconduct 18 E. “True Copies” . 19

VI. Bank Records . 19 VII. Searches of Ms. Eddy’s Electronic Records . 20 A. Initial Search Warrant 21 B. Repeated Searches of Seized Electronic Records . 21 C. Detention . 22 VIII. s 7 Charter Breaches - Disclosure . 22 IX. s 7 Charter Breaches - Abuse of Process . 23 A. OPCA Status . 23 B. s 11(

d) Charter Breaches - Presumption of Innocent 25 C. Crown Document Manipulation . 25 D. Failure to Adhere to Tax Operation Manual Guidelines . 25 E. The Volume of Disclosure . 26 F. The Third Party Cheque . 26 G. Conclusion - Abuse of Process . 26 X. Pre-Charge Delay . 26 XI. Pre-Trial Delay ( R v Askov Application) 27 A. Submissions . 27 1. Ms. Eddy . 27 2. The Crown . 28 B. s 11(

b) Charter Breaches – The Law .. 29 C. s 11 (

b) Charter Breaches - Analysis . 31 1. Delay Periods . 31 a. Ms. Eddy’s Disclosure-Related Strategy . 31 b. Rescheduling the Next Preliminary Inquiry . 34 c. Trial in Queen’s Bench . 34 d. Conclusion - Allocation of the Time to Trial 35 2. Prejudice to the Accused . 35 3. s 11 (

b) Charter Breaches - Conclusion . 36 a. The Basic Analysis . 36 b. Additional Reasons . 36 D. Conclusion . 38 XII. Crown Application - Admission of Business Records . 38 Appendix A - Table of Litigation Events . 41 I. Introduction [ 1 ] Denise Marie Eddy [“Ms. Eddy”] is charged on an information, sworn February 27, 2015, which lists eight tax-related criminal offences: 1. four counts of making false or deceptive statements in her T1 Individual Tax Returns, for the taxation years 2005-2008: Income Tax Act , RSC 1985, c 1 (5th Supp), s 239(1)(a);

2. engaging in tax evasion for the period of December 31, 2004 to January 1, 2009 by understating her taxable income for the 2005- 2008 taxation years: Income Tax Act , s 239(1)(d); 3. wilfully evading payment of taxes for the period of December 31, 2004 to January 1, 2009 by failing to collect or remit goods and services tax returns for taxation years 2006-2008: Excise Tax Act , RSC 1985, c E-15, s 327(1)(c); 4. between July 10, 2003 and October 13, 2010 counselled various persons to commit the indictable offence of fraud in excess of $5,000.00: Criminal Code , RSC 1985, c C-46, ss 380, 464(a); and 5. between July 10, 2003 and October 13, 2010 counselled various persons to commit the indictable offence of fraud in excess of $5,000.00, who then committed fraud, making Eddy a party to those offences: Criminal Code , s 22. [ 2 ] Ms.

Eddy is alleged to have participated in promoting a tax-evasion scheme created by a British Columbia resident named Russell Anthony Porisky, who is the subject of ongoing criminal proceedings: R v Porisky , 2014 BCCA 146 , 354 BCAC 86. Porisky and his subordinate “educators” were part of the Paradigm Education Group [“PEG”], allegedly a kind of multi-level income tax evasion ring. PEG educators and scheme participants have been convicted of charges analogous to those which Ms.

Eddy faces, including: R v Amell , 2010 SKPC 107 , 361 Sask R 61, affirmed 2012 SKQB 87, 2012 SKQB 87, conviction and sentence confirmed for two accused, 2013 SKCA, 414 Sask R 152; R v Baudais , 2014 BCSC 2161 , [2015] GSTC 8, R v Blerot , 2014 SKQB 2 , 2014 DTC 5029, affirmed 2015 SKCA 69 ; and R v Siggelkow , 2014 ABCA 450 . [ 3 ] Ms. Eddy is scheduled to have a month long judge and jury trial commencing on February 22, 2016.

She is self-represented, has been self-represented throughout this proceeding to date, and gives every indication that she will continue this. [ 4 ] Following a September 22, 2015 application by the Crown and the recommendation of the pre-trial conference justice, I appointed myself case management justice for this proceeding, per Criminal Code , s 551.1, to deal with pre-trial voir dire and related issues decided herein. II. The Charter Application and Supporting Documentation [ 5 ] Ms. Eddy on October 19, 2015 filed a Notice seeking various Canadian Charter of Rights and Freedoms ,

Part 1, Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the “ Charter ”], remedies. This was accompanied by an October 17, 2015 document that purported to be an “Affidavit”. That document was some 1,277 paragraphs and 866 pages, with 112 exhibits (an additional 959 pages), for a total of 1,835 pages. On November 3, 2015, I refused to accept the purported “Affidavit”, as it was largely composed of irrelevant material, opinions, arguments, hearsay and other matters inconsistent with a proper affidavit at law. This affidavit was redesignated as “Argument” and accepted on that basis. At that time I explained to Ms.

Eddy the defects in the October 17, 2015 document and permitted her to file a further proper affidavit, upon receiving my leave to ensure compliance with the legal requirements for a proper affidavit. I warned Ms. Eddy to not return to issues that had been previously decided. [ 6 ] Ms. Eddy sought leave to file a second purported affidavit on November 16, 2015. This document was 1,937 paragraphs and over 451 pages long. The November 16, 2015 document also shared the same deficiencies as the October 17, 2015 version. I declined leave for that reason. However, I again permitted Ms.

Eddy an opportunity to file a proper affidavit, and to assist her to better understand the requirements of such, issued a reported judgment ( R v Eddy , 2015 ABQB 744 ) that stressed a proper affidavit: 1. includes only facts deposed to that are “personal knowledge” or supported by information and belief; 2. excludes legal opinions and argument, and quotation and references to case law; and 3. would not collaterally attack decided issues and subjects.

Then, at paras 15-16, I examined a range of paragraphs from the November 16, 2015 document, and on a paragraph by paragraph basis explained the defects (if any) in those paragraphs. I observed that Ms. Eddy had previously been cautioned that the nature of her written materials had caused other judges to question whether their content was advanced in good faith (para 17) and permitted her a final opportunity to file a fit and proper affidavit. [ 7 ] On December 4, 2015, the Court received an application for a leave to file a third purported affidavit from Ms. Eddy.

This one was 236 pages and 1,430 paragraphs, and despite my detailed instructions shared the same defects that were present in the October 17 and November 16 documents. In light of the need to move this procedure forward, and provide the Crown an opportunity to respond before the scheduled hearing, I ordered this document would not be accepted as an affidavit generally but that Ms.

Eddy may refer to this document on a paragraph by paragraph basis as a potential source of evidence, and that I would then evaluate the content referenced to see if it constituted proper evidence, and admit it or exclude it, where appropriate. [ 8 ] During the voir dire hearing that followed, I reviewed paragraphs in the December 4, 2015 document as those were referenced by Ms. Eddy, and, in the process, struck out/excised many paragraphs as containing material that is improper for an affidavit. However, I allowed such material, again, to be treated as written argument.

Nevertheless that review process did not capture all the defects in the December 4, 2015 document, and some improper purported affidavit material remains that should be, at most, argument. III. Witnesses [ 9 ] Ms. Eddy, at the beginning of the voir dire hearing, complained that the Crown had impeded her obtaining testimony from various witnesses. Several of these candidate witnesses were clearly irrelevant as they were only involved in activities which related to the investigation of Russell Porisky (see

part VIA below). I permitted Ms. Eddy to make arrangements to call the remaining witness,

Canada Revenue Agency [“CRA”] investigator Wade Hartley [“Hartley”], for examination on his Information To Obtain [“ITO”] searchwarrant affidavits, but she took no steps to arrange his presence. IV. Analysis - Preliminary Issues [10] Ms. Eddy’s voir dire arguments include a number of recurring motifs. I will address these first as preliminary issues, but I alsoat later points expand on certain aspects of these topics as they were specifically argued by Ms. Eddy. A. Privacy in the Products of Non-Eddy Searches [11] Ms.

Eddy advances a number of s 8 Charter breach allegations that relate to information that was obtained by the CRA in theprocess of the CRA investigating Russell Porisky, his wife Elaine Gould, and the PEG multi-level tax evasion organization. Informationrelating to Ms. Eddy was discovered during investigation of Porisky and PEG. This information then became the basis for a CRAcriminal investigation of Ms. Eddy as also allegedly having engaged in illegal PEG-related activities. The initial investigation of Poriskyand PEG was conducted by CRA investigators operating from the Burnaby CRA offices.

Later, that information was transferred to theEdmonton-area CRA investigator Wade Hartley. 1. Ms. Eddy’s Position [12] Ms. Eddy complained that her s 8 Charter rights were breached in a number of ways that will be set out in more detail belowin these reasons. However, for the purposes of this element of the voir dire decision, these complaints may be summarized as follows: 1. Ms. Eddy had a privacy interest in the materials and information that were obtained by the CRA when they searched the Poriskyand Gould residence and obtained information relating to Porisky and PEG. 2.

The searches of the Porisky and Gould residence were either illegal, or the CRA lost lawful detention of evidence that wasobtained from those searches. 3. The transfer and/or copying of documents that were in the possession of the Burnaby CRA offices to Edmonton CRA investigatorHartley was in itself a warrantless search, and that search breached Ms. Eddy’s s. 8 Charter rights. 4. Subsequent to the transfer of evidence and information concerning the Porisky/PEG searches to Edmonton CRA investigatorHartley, the Crown lost lawful detention of that information, and that too was a breach of Ms.

Eddy’s s 8 Charter rights. 5. The Porisky/PEG-derived evidence should therefore be excluded from the Crown’s case at trial, which has ‘downstream’implications on the legality of other searches, including one of Ms. Eddy’s residence. [13] Ms. Eddy argued, apparently factually correct, that investigation of her alleged misconduct began with the Porisky/PEGinvestigations and dates to at least 2003, if not earlier. She asserted that she was inextricably intertwined with those matters. The CRAinvestigator assigned to her case worked with the Burnaby investigators.

She complained that her ability to scrutinize this period of theCRA investigation against her has been hampered by the Crown’s refusal to disclose materials from the Porisky/PEG investigation itself. 2. The Crown’s Position [14] The Crown argued that no Charter breach of any kind is possible in law, in the circumstances of this case, in relation to anyinformation that originated from the Porisky/PEG investigation because Ms. Eddy has no privacy interest in that property: R v Edwards, (SCC), [1996] 1 SCR 128, 132 DLR (4th) 31. The searches that obtained that information were of the Porisky andGould residence.

They had a privacy interest, but not Ms. Eddy. Ms. Eddy therefore lacks standing to challenge the legality of thosesearches and any ‘downstream’ application of that evidence. In addition, the Crown noted that it is established law that no search warrantis required in intragovernment transfer of information: R v Serré, 2011 ONSC 3749 at paras 54-55, 102 WCB (2d) 69.

Misuse of thatinformation and improper sharing is governed by privacy legislation including the Privacy Act, RSC 1985, c P-21 and the PersonalInformation Protection Act, SA 2003, c P-6.5. [15] The Crown observed that, in this situation, R v Edwards is the decisive authority, and that, when one applies the factorsidentified in this proceeding to evaluate a potential privacy interest, Ms. Eddy clearly does not have any such interest in information andmaterials that were located in the Porisky and Gould residence.

In the alternative, the Crown submitted what was obtained concerningPEG amounts to merely business records, and therefore has a minimal associated expectation of privacy: R v Jarvis, 2002 SCC 7, [2002]3 SCR 757. The Crown argued that too defeats Ms. Eddy’s s 8 Charter breach allegations. 3. Analysis [16] After oral argument on these issues raised under this heading, on December 16, 2015, I provided an oral decision as mydetermination of same, as that decision was considered, at that time, to be a prerequisite to argument and decision on other issues.

TheseReasons on these issues should be looked on as a re-articulation of the reasons for that oral decision and, to the extent there are anydifferences, as supplementary reasons. In effect, they should be read together. [17] I agree with the Crown. Eddy has no privacy interest in any documents, materials, or information that was derived frominvestigations of Porisky, Gould, PEG, or any other participant in the PEG scheme. That means this Court rejects all alleged s 8 Charterbreaches that flow, directly or indirectly, from the manner in which Porisky/PEG-derived evidence: 1. was initially obtained,

2. was transferred between government actors, 3. was subsequently retained, and 4. used in the investigation of Ms. Eddy. [ 18 ] The third item relates to Ms. Eddy’s arguments that the Crown lost legal control of this information because it failed to follow the Criminal Code , ss 489.1-490 procedures for reporting and to maintain custody of seized property. I will later in these Reasons comment more on Ms. Eddy’s Criminal Code , ss 489.1-490 arguments, but at this point it is sufficient that I simply observe that there are no s 8 Charter breaches associated with the Porisky/PEG-derived information because Ms.

Eddy never had a privacy interest in those materials and therefore has no right to contest their status, or demand their return. [ 19 ] R v Edwards also established the ground rules for when a s 8 Charter right to be secure against unreasonable search and seizure may exist. In that case, the Supreme Court of Canada considered whether an accused person has a right to challenge the admission of evidence obtained from a search of a third party’s residence.

In R v Edwards , a drug dealer argued he should have the right to challenge the validity of a search of his girlfriend’s apartment where the police had located crack cocaine. The question was whether the drug dealer had a reasonable expectation of privacy in that apartment and its contents. [ 20 ] Cory J for the majority restated the principles relevant in a s 8 Charter analysis. This is a two-step process: paras 33, 45. First, the accused must establish a reasonable expectation of privacy.

If that threshold is met then the next question is whether state action was an unreasonable intrusion on that right to privacy. We are at the first of the two steps in the case at Bar, and I have concluded this analysis does reach the second step. [ 21 ] Privacy is evaluated from the perspective of the person who alleges a s 8 Charter , s 8 breach: para 34. It is a personal privacy right: paras 42-43, 45. In this case, that is Ms. Eddy. R v Edward , at para 45, identifies seven factors to test that privacy right: (

i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii) ownership of the property or place; (iv) historical use of the property or item; (

v) the ability to regulate access, including the right to admit or exclude others from the place; (vi) the existence of a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. [ 22 ] Factors (

i) to (

v) do not favour Ms. Eddy having an expectation of privacy. She, like the accused in R v Edward , is a third party to the Porisky and Gould residence. She has argued that she has a privacy interest in Porisky/PEG-derived material, but I conclude that is not an objectively reasonable expectation of privacy. [ 23 ] I therefore agree with the Crown’s position. Ms. Eddy had no privacy interest in the Porisky/PEG-derived materials when they entered into the Crown’s possession. Obviously, that evidence would not somehow subsequently ‘grow’ a privacy interest after that point. [ 24 ] Ms.

Eddy has also argued that evidence should be excluded where it is “the fruit of a poisoned tree”. That concept has no application here. Instead Porisky and Gould have faced trial and both were convicted for their tax evasion activities: R v Porisky , 2012 BCSC 67 , 2012 DTC 5037; R v Porisky , 2012 BCSC 771 , 2012 DTC 5095. Porisky and Gould’s subsequent retrial ( R v Porisky , 2014 BCCA 146 , 354 BCAC 86) was not ordered on the basis of a defect in the searches executed on him.

Therefore, there is no “poisoned tree” established here. [ 25 ] Further, any review on my part of these decisions is obviously also prohibited as a collateral attack: British Columbia (Workers’ Compensation Board) v Figliola , 2011 SCC 52 at para 28 , [2011] 3 SCR 422. [ 26 ] I also agree with the reasoning in R v Serré that intragovernment transfer of information is not a search as that is defined by the Criminal Code . Privacy legislation instead functions to segregate information and limit access. The court scrutiny proposed by Ms. Eddy is neither mandated nor appropriate. The scheme proposed by Ms.

Eddy has simply unreasonable consequences. Let us say that Ms. Eddy’s position is correct. That would mean that a Crown Prosecutor who wanted to obtain information from police in relation to a witness in a trial being conducted by that Crown Prosecutor would have to seek and obtain a search warrant from the Court before the Crown Prosecutor would have the legal authority to ask the police if they had any information, and what that information would be. That would be absurd.

If true, any criminal investigation would be irrevocably mired in a tar pit of ITO’s and court applications. [ 27 ] I also accept the Crown’s argument based on R v Jarvis that, as business records, Ms. Eddy has at best only notational privacy expectations in the Porisky/PEG search evidence. 4. Conclusion [ 28 ] In conclusion I find that Ms.

Eddy has no legal standing to argue a breach of s 8 Charter rights in relation to the Porisky/PEG- derived evidence, and that any of that evidence or its ‘downstream’ products or derivatives should not be excluded from evidence or as a basis for subsequent searches, arrests, or other Crown activities.

[ 29 ] In closing on this argument, I note this exact scenario has already been evaluated in relation to another person involved with Porisky and the PEG. In R v Anderson , 2014 BCSC 2002 at paras 78-97 , Brown J evaluated whether PEG “educator” Debbie Arlene Anderson had a privacy interest in materials and information that were obtained by the apparently same searches that targeted Porisky, Gould, and the PEG. Justice Brown’s analysis and conclusions parallels mine.

Prior to that, Wilson J of this Court in R v Siggelkow , 2014 ABQB 101 , also rejected s 8 Charter -related arguments advanced by an additional PEG “educator”, Edwin Siggelkow, that also targeted Porisky/PEG-derived materials, but on other bases. B. Alleged Illegal Retention of Search Products 1. Ms. Eddy’s Position [ 30 ] Ms. Eddy alleged s 8 Charter breaches that emerge from a number of related arguments, all of which flow from the operation of Criminal Code , ss 489.1-490. These sections provide judicial supervision of materials seized during searches, after those searches have been conducted.

Section 489.1 creates a regime where government actors who seize property pursuant to Criminal Code , ss 487.11 or 489 then report to the courts on the status of seizures. For example, s 489.1 requires that where anything is seized by a peace officer that “as soon as is practicable” that the peace officer “shall”: 1. return the thing seized and report to a justice that the peace officer has done so ( Criminal Code , s 489.1(a)), or 2. bring or report about the thing seized to a justice ( Criminal Code , s 489.1(b)). Ms.

Eddy argued that a failure to report “as soon as is practicable” has the effect of rendering the possession of seized property illegal, and therefore a breach of s 8 of the Charter . [ 31 ] Criminal Code , s 490 addresses detention of items seized. This provision instructs that seized property should be returned unless the government actor who has control of seized property “satisfies the justice” that the detained item “... is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding ...”: Criminal Code , s 490(1).

Prolonged detention results in an escalating regime of court supervision: 1. detention past three months requires an application and order from a “justice” with notice to the property owner: Criminal Code , s 490(2); and 2. detention past one year also requires an application and order from a “judge of a superior court”, with notice to the property owner, and that procedure evaluates whether “... the complex nature of the investigation” warrants further detention: Criminal Code , s 490(3). [ 32 ] Property return is governed by Criminal Code , ss 490(5)-(6).

Notably, Criminal Code , s 490(7) permits the source (Ms. Eddy) of the seized property to apply for its return when a Criminal Code ss 490(1-3) period has expired, but Criminal Code , s 490(8) permits earlier release of the seized property if “hardship will result” from continued detention. [ 33 ] Criminal Code , s 490 does not apply where property is seized in relation to ongoing criminal proceedings or appeals. [ 34 ] Ms. Eddy argued that continued detention of items seized after the Criminal Code , s 490(1-3) periods, results in the Crown losing its legal right to continue to hold the property.

She argued that, after that point, any ongoing detention of seized property is a breach of her s 8 Charter right to be secure against unreasonable search and seizure. She asked the Court to exclude any evidence that was not documented or held under the Criminal Code ss 489.1-490 procedures. [ 35 ] Ms. Eddy relied on a number of Ontario cases in relation to the ‘failure to report’ and ‘illegal ongoing detention’ branches of her argument.

On the former, her key authority is R v Gignac , 2007 ONCJ 472 , 75 WCB (2d) 286, where a Justice of the Peace of the Ontario Court of Justice concluded that “as soon as practicable” should be interpreted to mean seven days. She also relied on R v Garcia- Machado , 2014 ONCJ 81 , 302 CRR (2d) 151, which concluded that failure to return a blood sample, which is “highly personal and private information”, where Criminal Code , s 489.1 is not met “as soon as is practicable”, renders the ‘upstream’ search unlawful and unreasonable: para 55.

I note that on appeal Hoy ACJO concluded that this scenario was a breach of s 8 Charter rights, but ruled the evidence should nevertheless be admitted: R v Garcia-Machado , 2015 ONCA 569 . 2. Crown’s Position [ 36 ] The Crown acknowledged that certain Ontario cases have found it is possible that a failure to strictly meet the requirements of Criminal Code , ss 489.1-490 may breach a person’s s 8 Charter right to be free of unreasonable search and seizure.

The Crown, however, argued that Alberta has taken a different path, and courts in this jurisdiction have concluded that a failure to meet Criminal Code , ss 489.1-490 requirements in detention of seized property does not constitute misconduct that leads to a Charter remedy of any kind. [ 37 ] In R v Villaroman , 2012 ABQB 630 at paras 128-151 , 557 AR 1, reversed on other grounds, leave granted [2015] SCCA No 196, Yamauchi J concluded, at para 150, that these provisions have their own internal remedy, that the property owner may apply for the return of seized items: This Court does not find that Criminal Code ss 489.1 and 490 are administrative, or technical, only.

They create substantive rights in the lawful owner of the property. So what happens if the police breach their obligations pursuant to those sections? The remedy is found in Criminal Code s. 490 itself, where the lawful owner can seek to recover the property. ... [ 38 ] The Crown noted this approach has subsequently been adopted in R v Croft , 2014 ABQB 206 at paras 119-127 . In that decision Burrows J noted, at paras 121-122, that Criminal Code , s 487.012 explicitly indicates that copies of documents obtained under

that provision do not need to be returned, which, by implication, excludes copied documents from the Criminal Code, ss 489.1-490scheme. The most that any person can seek is return of a seized original document. [39] The Crown also generally argued that Ms. Eddy has not laid a factual foundation for whether or not a delay was unreasonable,and that the onus is on her to prove that. 3. Analysis a. Criminal Code, s 489.1-490 do not Create Substantive Rights [40] First, I accept the Crown’s argument that Ms. Eddy does not have a Charter remedy from any procedure that relates toCriminal Code, ss 489.1-490.

I adopt the reasoning of Justice Yamauchi of this Court in R v Villaroman. [41] That said, there is inconsistent Alberta jurisprudence in relation to this issue. In R v United Grain Growers Ltd. (1996), (AB KB), 185 AR 182, 39 Alta LR (3d) 285 (Alta QB), Veit J ordered return of seized documents per Criminal Code, s490, and refused to permit the Crown to make copies of those documents. This approach was subsequently explicitly rejected in Albertaby R v Cartier (1997), (AB KB), 197 AR 70 at para 6, 41 CRR (2d) 315 (Dea

J) and R v Black, 2001 ABQB 216 atparas 20-21, 291 AR 164 (Marceau J), and in British Columbia in Lemare Lake Logging Ltd. v British Columbia (Minister of Forestsand Range), 2011 BCSC 903, 103 WCB (2d) 85, affirmed 2011 BCCA 474, 313 BCAC 107; Bleet v Canada (Attorney General),[1997] BCJ No 3195 at para 8 (QL) (BCSC); R v Bromley, 2002 BCSC 149 at para 36, 52 WCB (2d) 504.

Upon reviewing theseauthorities, with respect to Veit J, I do not adopt R v United Grain Growers Ltd. as the governing law in Alberta. [42] More recently, in R v Villaroman, Yamauchi J concluded that no Charter breach can ever flow from the Crown’s conduct inrelation to Criminal Code, ss 489.1-490. R v Villaroman has subsequently been adopted in R v Croft, at para 119-127, and R v Balla,2014 ABQB 127, at para 71-75, 583 AR 79 (Yamauchi J).

The Crown correctly observed that the Ontario Court of Appeal, in R vGarcia-Machado, 2015 ONCA 569, has come to the conclusion that is arguably different from R v Villaroman, and that a Charterbreach can emerge from ss 489.1-490. I prefer the analysis of Justice Yamauchi in R v Villaroman, and agree that Ms. Eddy’s remedywas to exercise her rights under Criminal Code, s 490(7) and 490(8) to seek return of any seized property.

I note that, in fact, she didattempt to challenge the detention of property at a January 24, 2011 Criminal Code, s 490 hearing before Kirby PCJ, so this is not sometheoretical right but rather that one she attempted to exercise and that was rejected after judicial consideration. [43] This is the first basis on which I reject Ms. Eddy’s arguments concerning the allegedly illegal retention of seized evidence. b. Ms. Eddy Cannot Deny Crown Possession of Copies of the Disputed Evidence [44] A second independent basis on which I reject Ms.

Eddy’s argument concerning unlawful detention of her materials is that theCriminal Code, s 489.1-490 procedures operationally distinguish between ‘informational’ (such as documents and computer records) and‘material’ (such as a bloody knife, money, or contraband drugs) evidence.

This is not stated explicitly in the Criminal Code, but rather isa conclusion that emerges by implication from Criminal Code, ss 490(13)-490(14), which, I note, applies to documents only: 490(13) The Attorney General, the prosecutor or the peace officer or other person having custody of a document seized may, beforebringing it before a justice or complying with an order that the document be returned, forfeited or otherwise dealt with under subsection(1), (9) or (11), make or cause to be made, and may retain, a copy of the document.

(14) Every copy made under subsection (13) that is certified as a true copy by the Attorney General, the person who made the copy orthe person in whose presence the copy was made is admissible in evidence and, in the absence of evidence to the contrary, has the sameprobative force as the original document would have if it had been proved in the ordinary way. [Emphasis added.] [45] The effect of these provisions is that, even if Ms.

Eddy’s document-based evidence was returned via the s 490 procedures, theCrown is both entitled to make and keep copies, and those copies are deemed as having the same effect as originals. This makes plainParliament’s intention when it comes to the return of seized documents - s 490 is not intended to deny access by the Crown to theinformation seized, but rather to provide a mechanism so that materials (in this case documents) that are no longer directly necessary (asoriginals) may be returned to their owners. [46] I conclude the same is true for both ‘hardcopy’ and ‘electronic’ data.

This conclusion collapses Ms. Eddy’s arguments that a s8 Charter breach may result from the Crown’s continued holding of seized information beyond what is permitted under Criminal Code,ss 489.1-490. At most Ms. Eddy could obtain return of the original electronic and physical documents. She could never demand return ordestruction of copies. If lawfully seized, those are permanently in Charter-compliant custody of the Crown. [47] I am not the first Alberta Court of Queen’s Bench justice to evaluate this issue. Dea J in R v Cartier, at para 18, concluded:

Section 490 is clear. Its purpose is to ensure that what was seized be returned if further detention is not allowed. By allowing copies tobe made (s. 490(13)) and in giving those copies the probative force of the originals (s. 490(14)) the

section advances its aim of allowinga return of the "things seized" without emasculating legitimate police investigation of crime. [Emphasis added.] He subsequently concluded that Criminal Code, ss 490(13-14) are Charter compliant by how they permit the Crown to retain copies ofseized documents: para 24. [48] Justice Dea’s conclusion was subsequently followed in: Bleet v Canada (Attorney General), R v Black at paras 20-21, R vBromley, and Lemare Lake Logging Ltd v British Columbia (Minister of Forests and Range), at para 33.

As well, ‘downstream’ use ofCrown copies was permitted in R v Ritter, 2004 ABQB 332, 359 AR 89 (Hillier J). [49] This is a second independent basis on which I reject Ms. Eddy’s 489.1-490 arguments. Once informational evidence

(electronic or hardcopy) was obtained with a valid search warrant Ms. Eddy has no Charter right to interfere with the Crown’s possession or use of copies of that evidence. Even if she had been entitled to return of the original informational evidence, taken from her residence, Ms. Eddy could not have stymied the Crown’s ability to use copies of the seized information as a basis for searches, further investigation, or in its impending criminal trial. [ 50 ] I note this explains why the analysis in R v Garcia-Machado does not apply to Ms. Eddy’s argument.

The seizure in R v Garcia-Machado is of a very different kind: a sample of blood, rather than documentation. It could not be ‘copied’. With seized material, like blood, the Crown may be obliged ‘to either use it or lose it’ (a material item), but that is not the issue here. c. Failure to Prove Reports Were Late [ 51 ] Third, I agree with the Crown that the requirement in Criminal Code , s 489.1 that a report to a justice be made “as soon as is practicable” cannot be a fixed, simple seven day deadline such as what Ms. Eddy has proposed.

Instead, it is what is “practicable”, a contextual question. [ 52 ] Some alleged crimes are simple. Others are not. Eddy’s proposed scheme isolates the s 489.1 process from the reality of law enforcement investigation. A search warrant of a mail parcel that discovers cocaine is a comparatively simple investigation to report. A short deadline would then be “practicable”. The discovery of a complex crime scene with much potential evidence and many seizures will require more “practicable” time to generate a report.

Similarly, I conclude that the character of an investigation and the workload of the investigators is relevant. It would be absurd that a criminal could argue that a seizure of a firearm used in a crime was not reported on a “practicable” timeline because the investigator who seized that firearm was involved in an active investigation of a dangerous wanted criminal. Sometimes law enforcement time is better spent outside an office, rather than in it, filling forms.

If Parliament had meant “as soon as possible” it would have said so. “Practicable” necessitates context . [ 53 ] That was the conclusion of the Paciocco J in R v Butters , 2014 ONCJ 228 , 311 CCC (3d) 516, affirmed 2015 ONCA 783 . The issue at trial was whether court determination of a s 489.1 report was illegally delayed required evidence from the officer who prepared the s 489.1 report to evaluate ‘practibility’. The Court concluded intent was irrelevant. What mattered was the facts about the matter, and that included the

schedule of the investigator and that a proper report requires time “... to complete the analysis of the evidence before the reports could be completed.”: para 57. [ 54 ] I note that in R v Butters “analysis” of the seized property was necessary before a proper report could be generated. This makes sense. Ms. Eddy’s claim that simple possession starts the timeline to generate a s 489.1 report is wrong - and that is only logical because it is very important that the content of the report to justice meaningfully inform on what was seized.

For example, a report that disclosed the seizure of an unknown white powder tells the court little. A seizure of cocaine, identified after the time for analysis, is different matter entirely. [ 55 ] Since Ms. Eddy has the onus to establish whether or not a s 489.1 report was made “as soon as practicable”, and since she has not provided evidence of the CRA investigators workloads, schedules, or information on the complexity of what was seized, I conclude she did not establish, on a balance of probabilities, that any s 489.1 report was not made “as soon as practicable”.

While I do not find that she has a s 8 Charter right in any case, the fact that she has not established a factual foundation for her argument is another reason I reject her proposed Charter breach claim. 4. Conclusion [ 56 ] I therefore globally reject Ms. Eddy’s various Charter breach arguments wherever those rely on the Crown’s alleged failure to meet Criminal Code , s 489.1-490 procedures so that the Crown lost legal control of seized property and information. V. Ms. Eddy’s Residence Search [ 57 ] Ms. Eddy attacked the validity of the search warrant on her residence on multiple bases.

Some attacked the evidentiary foundation of the search, and the manner which that information was encapsulated in the ITO. Others attacked the product of that search. Still others imputed misconduct on CRA investigators. A. The Crown Lost Legal Detention of the Search Products [ 58 ] Ms. Eddy argued that the products of the 2010 search of her residence ceased to be lawfully detained on January 24, 2011. This is allegedly a consequence of an unfair hearing before Provincial Court Judge Kirby, where the Crown applied for continued detention of property that had been seized from Ms.

Eddy’s basement suite residence via Criminal Code , ss 489.1-490. The defect that Ms. Eddy identified is that an affidavit of Wade Hartley in support of that application allegedly included a lie by Hartley. The affidavit describes service of notice and supporting materials for the January 24, 2011 hearing [ 59 ] Ms. Eddy argued that the affidavit and written notes Hartley prepared to document service of the January 24, 2011 hearing notice could not have been delivered in the manner described. Hartley deposed he stood at the threshold of the building Ms.

Eddy occupied and observed a third party deliver the envelope that contained the notice and supporting documents by sliding it under the door to Ms. Eddy’s basement suit. Ms. Eddy personally testified on the arrangement of the entrance to the building’s basement suites and argued, with the assistance of photographs, that this is impossible. She argued that Hartley would, at a minimum, have had to enter the structure and occupy a landing beside the back door to have seen the delivery occur. [ 60 ] It appears that Ms.

Eddy argument is that this misstatement should mean the January 24, 2011 hearing was invalid, and that the Crown lost lawful detention of the residence search products at that point.

[ 61 ] Ms. Eddy, in cross-examination, agreed that she did receive the envelope prior to the hearing, had reviewed and understood its contents, and then appeared at the January 24, 2011 hearing and argued the seized property should be returned, including a complaint concerning inadequate notice. The Crown noted that the manner in which Hartley described his position in the residence is really a question of

interpretation. [ 62 ] I reject Ms. Eddy’s argument that this alleged misconduct is relevant on multiple bases. 1. Any Misstatement is Trivial [ 63 ] The first basis on which I reject Ms. Eddy’s argument is that the inaccuracy, if indeed there is one, is trivial. Presuming for a moment that Hartley did physically enter the step area to observe the envelope delivery, that distinction is, at most, minor, and any intrusion into the shared space of a multitenant residence is inconsequential. 2.

The Warrant to Detain Was Lawfully Issued [ 64 ] While Criminal Code , s 490(17) permits appeals of court decisions made under Criminal Code , ss 490(8), 490(9), 490(9.1) and 490(11), it provides for no appeal of an order made under Criminal Code , ss 490(2) or 490(3). McLachlin CJC in R v Raponi , 2004 SCC 50 at para 16 , [2004] 3 SCR 35 concluded that there is no legislative appeal from a decision under Criminal Code , s 490(2). [ 65 ] The only basis on which Ms. Eddy could challenge Judge Kirby’s order was by judicial review, which did not occur: R v Raponi , at para 37 .

In any case, there is no substantial allegation of procedural unfairness here. Ms. Eddy admits that service itself was effective. She received the documents and understood what they were. She appeared at the January 24, 2011 hearing and had the opportunity to argue her perspective. That was not successful. I therefore conclude that Ms. Eddy has not proven there were any defects in the January 24, 2011 hearing that ordered ongoing detention of the seized property. [ 66 ] I therefore conclude that Ms. Eddy has no basis to challenge the warrant on which property seized from her residence was detained.

The defect identified by Ms. Eddy (if it existed) cannot subvert the Kirby PCJ order. This a second independent basis on which I reject Ms. Eddy’s argument. 3. Any Defect in Ongoing Seized Property Detention is Not a Charter Breach [ 67 ] My analysis in

Part IVB above would negate any purported Charter breach that purportedly results from a procedural justice defect in the January 24, 2011 hearing. [ 68 ] I also note that, in R v Raponi , the Supreme Court explained what happens when the Crown has in its possession property that was seized but whose ongoing detention was not approved in the Criminal Code , s 490(2) (and presumably 490(3)) processes. The owner of the property then may seek return of the property via an application for replevin at the relevant provincial superior court: para 36. In Alberta, that would have been the Alberta Court of Queen’s Bench.

Note that this means that ongoing detention of seized property outside that permitted by ss 490(2)-(3) is not an automatic basis for a remedy of any kind. Instead, Ms. Eddy’s appropriate response was either to make an application under Criminal Code , s 490 or seek the replevin remedy identified in R v Raponi . [ 69 ] This is a third basis on which I reject Ms. Eddy’s argument. 4. The Crown is Entitled to Copies of Document Material [ 70 ] The fourth independent basis on which I reject Ms.

Eddy’s argument concerning unlawful detention of her materials is that as I have concluded the Crown was free to retain copies of any seized materials, see

Part IVB3b above. Even if she had been entitled to return of the items taken from her residence, Ms. Eddy would not have stymied the Crown’s ability to pursue its case against her. 5. Conclusion [ 71 ] I therefore conclude that Ms. Eddy has not proven, on a balance of probabilities, that her Charter rights were breached, directly or indirectly, through the ongoing detention of property seized from her residence. I note that my analysis of the legal implications of the Crown retaining seized information may have other applications to the alleged Charter breaches identified by Ms. Eddy.

My conclusions as law apply equally to those other alleged breach scenarios. B. Eddy’s Address in the ITO Was Incorrect [ 72 ] At the time of the search warrant on her residence Ms. Eddy lived at a basement suite at 852 4 84 Ave. in Edmonton. The ITO identifies that as the address for the search, and the search was conducted on that location. However, Ms.

Eddy claimed that what purports to be the Land Titles record for that building indicates the address as 852 2 84 Ave., and argued that means the 852 4 address is incorrect, and it should be ‘struck out’ of the ITO, as a consequence, presumably leaving the ITO without any target address. [ 73 ] I conclude the fact that there are, or may be, variant addresses for Ms. Eddy’s residence is irrelevant to the question of whether the Crown obtained authorization to access that location - and it did - and it had evidence that linked Ms. Eddy to the 882 4 variant of that address - which it did. Ms.

Eddy has not proven any defect in the ITO that requires any further investigation. C. Communication of Materials Seized from Russ Porisky was Illegal [ 74 ] This argument by Ms. Eddy has, essentially, two parts. First, she disputed that the manner in which CRA investigator Hardley

obtained materials that related to Ms. Eddy from other CRA investigations being conducted by the CRA office in Burnaby, BritishColumbia. Second, she argued that the product of those alleges searches were not lawfully reported. She says the consequence is thatinformation should be excised as a breach of her s 8 Charter rights. [75] I will not detail the various different enumerated examples of this alleged Charter misconduct because they all fail in thesame manner. 1. Transfer of Information Was an Illegal Warrantless Search [76] Ms.

Eddy’s argument here is allegedly that any renewed access or transfer of information that relates to her which had alreadybeen seized by the CRA is a new search and seizure. She relied on three authorities: R v KZ, 2014 ABQB 235, 589 AR 21 (Hughes J); Rv Chen, 2007 ONCJ 177, 155 CRR (2d) 163; and R v Garcia-Machado. I believe a useful starting point in responding to this argument isto evaluate the potential application of R v KZ and R v Chen. I have already commented on R v Garcia-Machado. [77] I reject the potential application of R v KZ. It has no relevance to Ms. Eddy’s alleged Charter breaches.

Factually, this casehas no application to Ms. Eddy’s scenarios because R v KZ effectively relates to multiple searches of a single data storage device, but fordifferent purposes. This is analogous to the rule that a search of a space may be authorized for one purpose, but not others.

For example,it is well understood that a search of a home for a person does not permit police to examine spaces that are too small to conceal thatindividual - to do so would be a warrantless search. [78] Put more generally, the factual scope of a search warrant is set by the purpose and objective of the search authorized. [79] R v KZ concludes that, when one searches a computer system, that the search must relate to an enumerated offence.

Thisrecognizes that the kinds of information on a personal computer system are diverse and exceptionally personal, so that any intrusion intothat virtual space must be carefully constrained by court supervision: R v Vu, 2013 SCC 60, [2013] 3 SCR 657. A new search warrant isrequired where the search relies on a different kind of offence. In R v KZ the initial search was in relation to a murder, but, by chance,detected child pornography. The jeopardy of the accused and the subject of the search shifted, and therefore a new search warrant wasrequired to search for evidence of child pornography. [80] In Ms.

Eddy’s case evidence was seized on the basis of alleged tax fraud and counselling tax fraud. That has always been theonly allegation against Eddy and others associated with the PEG. There is no requirement for an additional search warrant or reportingon any subsequent searches because the substance of what had been identified and seized was the same. [81] R v Chen is also irrelevant. It relates to a CRA search of a space on the basis of allegations that had no relation to Chen.However, a search of that location coincidentally identified information the associated Chen with tax-related misconduct.

The keydistinction that makes R v Chen irrelevant to the present scenario is that Chen had a privacy interest in the property seized in the initialsearch directed at a third party. [82] Ms. Eddy’s argument that the transfer of information from the Porisky investigation to Hartley is a search fails on severalbases. Ms. Eddy has not proven any privacy interest in the information that was seized in the investigation of Russell Porisky (Part IVAabove). Porisky did. Second, a transfer of information within a government is not a search as that is defined by the Criminal Code. 2.

Retention of the Porisky Sourced Information became Illegal [83] This argument is essentially that the information CRA investigator Hartley obtained should have been subject to the CriminalCode, ss 489.1-490 procedure, and failure to adhere to that is a Charter breach. I dispose of this argument following my analysis at partIVB above. D. Ms. Eddy’s Address Was Obtained or Retained Illegally [84] Eddy complained about the manner in which the CRA obtained her home address via an information request to the ServiceAlberta Special Investigation Unit [“SASIU”].

She alleged this information was “conscripted” and is a breach of her s 8 Charter rights.She also argued improprieties in that direction made by the SASIU to a licenced Alberta Registry, the Alberta Motor Association, andmisconduct by SASIU personnel themselves.

She argued that, in effect, the acquisition of her home address was a warrantless search,and the ITO should be stripped of that information. [85] Eddy also argued that, though the CRA obtained information via a production order, that a Report to Justice per CriminalCode, s 489(3.1) was not filed in a timely manner, and cites R v Gignac and R v KZ in support of the requirement for timely disclosure. [86] Eddy also advances a rather ill-defined argument that the state actors’ investigation of her residential address is ultimatelyimproper since that information is irrelevant to the Crown’s case, as the location where Eddy lives is not linked to her allegedmisconduct. [87] I reject this argument on multiple bases. 1.

No Privacy Interest in Residential Address [88] The Crown argued that Ms. Eddy had no privacy interest in her home address, and cites R v Plant, (SCC),[1993] 3 SCR 281 at 293, 157 NR 321 for the principle that constitutionally protected privacy interests relate to information that fallsinto the: ... biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from

dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. [ 89 ] Ms. Eddy, effectively, is arguing that her residential address falls into that category of personal information. I note first that anyone who has a driver’s licence in Alberta is required by law to disclose both their postal address and physical address: Operator Licensing and Vehicle Control Regulation , Alta Reg 320/2002, ss 10(1)(b-c).

The latter is defined as “...the location of a person’s residence in Alberta at which the person can be personally served with documents ...”. Ms.

Eddy is therefore under a legal obligation to disclose the information that she claims falls into her “biographical core of personal information”, which categorization by her is clearly incorrect. [ 90 ] My conclusion on this point is reinforced by the Supreme Court of Canada in Bernard v Canada (Attorney General) , 2014 SCC 13 at para 41 , [2014] 1 SCR 227, that an employer’s disclosure of an employee’s residential address to a union was not a breach of the employee’s s 8 Charter rights because “...there can be no reasonable expectation of privacy in that information.” In that instance the disclosure was necessary for the union to conduct its function, which in my opinion is a weaker basis than Ms.

Eddy’s obligation under law to provide the SASIU with her mailing and physical addresses. 2. Only the First Disclosure and Associated Events are Relevant [ 91 ] The s 8 Charter prohibition against unreasonable search and seizure relates to initial taking of evidence. I have previously accepted the Crown’s arguments concerning application of R v Serré and the Privacy Act , and the Personal Information Protection Act . Once a government actor had Ms. Eddy’s residential address then that information is managed by personal information privacy legislation.

As the Crown observed, Privacy Act , s 8(2)(e), and Personal Information Protection Act , s 20(f), explicitly permit government actors to share a person’s information where that sharing is to further a lawful investigation. That is what happened here when the CRA obtained Ms. Eddy’s residential address from the SASIU. As a consequence Ms. Eddy has no basis to claim a Charter breach. 3. No Issue with Production Order and Report to a Justice [ 92 ] I reject Ms. Eddy’s arguments on these subjects per my analysis in

part IVB, above. 4. Ms. Eddy’s Address is Irrelevant as Unrelated to the Alleged Misconduct [ 93 ] Ms. Eddy’s argument that the Crown’s investigation of her residential address is unrelated to her alleged criminal conduct is obviously incorrect. Criminals frequently conceal or locate evidence of their misconduct in their residences. Ms. Eddy is alleged to have evaded income tax and counselled tax evasion. Ms. Eddy’s residence is a logical place to search for documentary and other evidence of Ms. Eddy’s income-generating activities. The ITO makes that plain.

The Hartley ITO is therefore a valid basis to issue the search warrant executed on Ms. Eddy’s residence. E. “True Copies” [ 94 ] Ms. Eddy argued her ss 7-8 Charter rights were breached when the CRA and Crown actors reproduced documents that were then sworn to be “true copies”, as that term is used in various sections of the Criminal Code . Ms. Eddy noted that some of the documents that were used to support the ITO (directly or indirectly) exist in forms in the disclosure that are inconsistent.

For example, she identified two versions of a document where photocopying had resulted in several words being partially cut off the margin at some point during the copying process. Ms. Eddy argued that these dissimilar versions meant one was not a “true copy”, and so CRA investigators had misled the Court when they swore these were “true copies”. [ 95 ] The examples of different versions identified by Ms. Eddy in relation to the ITO (and other issues) did not include any differences that were of substance or in any way relevant. For example, in addition the example above, Ms.

Eddy globally complains about differences such as staple holes, binder hole punchings, marginal notes, and fax transmission information. None of this is relevant. I globally reject that the Crown engaged in Charter -relevant misconduct when different versions of disclosed documents were each identified as “true copies”. VI. Bank Records [ 96 ] Ms. Eddy advanced three arguments that her bank records were illegally seized: 1. CRA investigators should have sought those records via Criminal Code , s 487.013, but instead used Criminal Code , s 487.012; 2.

CRA investigators failed to file a report to justice per Criminal Code , s 489.1 “as soon as practicable”; and 3. the Crown then retained those materials in an illegal manner. [ 97 ] I have already rejected the second and third alleged s 8 Charter breaches in my preliminary issues analysis (see

Part IVB, above). [ 98 ] At the relevant time, the provisions that were the basis of the seizure Criminal Code , ss 487.012 and 487.013 were as follows: 487.012(1) A justice or judge may order a person, other than a person under investigation for an offence referred to in paragraph (3)(a), (

a) to produce documents, or copies of them certified by affidavit to be true copies, or to produce data; or

(

b) to prepare a document based on documents or data already in existence and produce it. ... 487.013(1) A justice or judge may order a financial institution, as defined in

section 2 of the Bank Act , or a person or entity referred to in

section 5 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, unless they are under investigation for an offence referred to in paragraph (4)(a), to produce in writing the account number of a person named in the order or the name of a person whose account number is specified in the order, the status and type of the account, and the date on which it was opened or closed. ... [ 99 ] The more recent versions of these two sections are Criminal Code , ss 487.014 and 487.018. I will refer to these provisions as ss 487.012 and 487.013 throughout.

The Crown in its submissions traced how the definition of “a person” includes a financial institution, so that element is irrelevant to my analysis. [ 100 ] The operation of these two provisions is different, but related.

Section 487.012 provides a more general inquiry to obtain data or documents from “persons” other than the target of the investigation .

Section 487.013 requires “a financial institution”, as defined by the Bank Act , SC 1991, c 46, s 2, to provide account information and status. [ 101 ] The Crown argued, and I accept, that where the Criminal Code or other legislation provides alternative methods to obtain evidence then state investigators may obtain and execute a search warrant or production order via any available mechanism.

It points to the fact that Parliament often sets up parallel and overlapping procedures for legal searches and production orders, for example both the Criminal Code and the Controlled Drugs and Substances Act , SC 1996, c 19 can authorize a search warrant.

Either is a valid and legal basis to obtain a search warrant. [ 102 ] The Crown also notes that Read J in Alberta (Attorney General) v Alberta (Provincial Court) , 2015 ABQB 728 reviewed a provincial court hearing judge’s conclusion that a bank cannot be ordered to produce the kind of information specified in Criminal Code , s 487.013 by a production order granted under Criminal Code , s 487.012.

In short, the provincial court judge concluded that by enacting Criminal Code , s 487.013 Parliament had ‘carved out’ an exceptional approach for production orders that target band account information. [ 103 ] Justice Read then conducted a detailed statutory

interpretation of Criminal Code , ss 487.012-487.013 and their modern successors, and concluded, at paras 83-84, that the information itemized in Criminal Code , s 487.013 may also be obtained via Criminal Code , s 487.012. I agree.

I note an analogous argument was advanced by a number of other PEG offenders who argued that search warrants were invalid when made under the Criminal Code , instead of the Income Tax Act : Siggelkow v Canada (Attorney General) , 2013 ABCA 388 , 2014 DTC 5008; Blerot v Canada (Minister of National Revenue - M.N.R.) , 2012 FCA 124 , [2012] 5 CTC 67 ; Canada (Attorney General) v Lewry , 2012 FCA 125 , [2012] 5 CTC 107 , leave refused [2012] SCCA No 277. The substance of Ms. Eddy’s argument was rejected in all instances. VII. Searches of Ms. Eddy’s Electronic Records [ 104 ] Another complaint advanced by Ms.

Eddy is that searches of electronic records seized from her were improper. This largely relates to information located on a “data key” information storage device, though other electronic devices including a computer were also seized from Ms. Eddy’s residence and searched. The allegedly unauthorized searches includes both searches ordered by the CRA investigators and Crown Prosecutors. Each functionally used the same process. A. Initial Search Warrant [ 105 ] Ms.

Eddy cited R v Vu for the proposition that any search of an electronic source such as a personal computer that contains deeply personal information requires a specific search warrant authorization to search the content of a data device of that kind. She argued the warrant issued to search her property and seize evidence only permits seizure of those data devices, but not searches of their contents . [ 106 ] The Crown argued that, read together, the ITO and warrant make it very clear that the CRA investigators were looking for documentary evidence of Ms.

Eddy’s alleged PEG misconduct, in both ‘hardcopy’ and electronic forms, and cite R v Varty , 2015 SKQB 51 at paras 51-62 for the proposition that no second warrant is needed to search the contents of electronic storage devices when the ITO makes plain that forensic investigation of those resources for relevant data is part of the planned procedure. Similarly, the Crown noted that, in R v Nurse , 2014 ONSC 1779 , Coroza J concluded, at paras 58, that a search warrant that authorizes search for sources that contain data implicitly and logically includes a search of the data stored as well.

This means that an investigation of detained data sources is not a warrantless search: para 61. [ 107 ] Bluntly, Ms. Eddy’s argument is entirely spurious. Unlike R v Vu , the CRA investigators entered into Ms. Eddy’s residence fully prepared to look for electronic data relevant to her alleged illegal PEG activities. I agree with the analysis in R v Nurse that a search warrant that authorizes seizure of electronic data sources also necessarily permits investigation of their contents. [ 108 ] Beyond that, my review the warrant and ITO indicates these documents specifically detailed searches of data sources. Ms.

Eddy argued in rebuttal that she is different from the accused in R v Varty because she was not engaged in an “electronic crime”, but that is contrary to her own complaints that the CRA had improperly tracked her activities in online forums associated with PEG. Beyond that, in my opinion, given the modern state of document management - which is very frequently electronic - any ‘document-driven’ misconduct will necessarily be an “electronic crime” because that is how most people and institutions now manage documentary resources.

B. Repeated Searches of Seized Electronic Records [ 109 ] Ms. Eddy also argued that subsequent searches of the “data key” were not authorized and, again, cited R v KZ for the proposition that any repeated search of an electronic data resource requires its own ITO and search warrant. I have previously explained why R v KZ has no application to Ms. Eddy’s scenario (see

Part VC1, above). R v KZ involved searches of a data resource for different kinds of potentially incriminating information. The focus on Ms.

Eddy has always been the same: her participation in evading and counselling the evasion of income tax as part of the PEG scheme. [ 110 ] R v Nurse , at paras 66-73 , also addresses this issue and concludes that Criminal Code , s 487(2.1-2.2) authorizes state authorities to lawfully duplicate seized data resources (citing R v Vu , at para 48 ), and that, if obtained lawfully, then government actors are not require renewed and additional judicial authorization to conduct additional investigations and analyses of that data, provided those further investigations relate to the alleged misconduct that was the basis for the original seizure.

C. Detention [ 111 ] Ms. Eddy alleged and the Crown admitted that it did have custody of Ms. Eddy’s electronic records information after a Criminal Code , s 490 detention period had expired. The Crown argued that this is not a Charter breach, and I agree (see

Part IVB above), but beyond that Ms. Eddy’s remedy was to apply for the return of that evidence via a Criminal Code , s 490(7) procedure. She did not do that, and even if she had, the Crown claimed it would have been entitled to retain a copy of the seized electronic information and to search it as often as it wished: R v Nurse at paras 66-73 . I agree. [ 112 ] The most favourable case cited by Ms. Eddy on this point, R v Garcia-Machado , provides no benefit for two reasons. First, I, along with other Alberta court authorities, have rejected its reasoning.

Second, R v Garcia-Machado concludes a Charter breach may occur where a Crown agent fails to report to a justice as required by Criminal Code , s 489.1, or in other words this addresses the initial seizure of property stage of the evidence collection process. That is different from the s 490 breach alleged by Ms. Eddy. [ 113 ] Here Ms. Eddy has not proven that the search and seizure at her residence was improper. The CRA legally had custody of the materials seized at that time.

It then copied the electronic information that it had located, and to do so was legal ( R v Vu , at para 48 ): ... once a warrant to search computers is obtained, police have the benefit of s. 487(2.1) and (2.2) of the Code, which allows them to search, reproduce , and print data that they find. [Emphasis added.] [ 114 ] In Ms. Eddy’s case the ‘gatekeeper’ phase of the search process was complete. The admitted overlong detention relates to Criminal Code , s 490, and the return of seized property.

I conclude this is a different issue and technically not even a “search or seizure” that is protected under s 8 of the Charter . [ 115 ] I therefore conclude that the Crown’s initial and subsequent searches of Ms. Eddy’s electronic data resources were lawful, and that no Charter breach resulted from the ongoing detention of that property. VIII. s 7 Charter Breaches - Disclosure [ 116 ] Ms. Eddy, in her written Argument, and in her December 4, 2015 “Affidavit”, made many allegations that her s 7 Charter rights had been breached by the Crown’s failure to disclose information.

Given the analysis that follows, I will not itemize those. At the voir dire hearing Ms. Eddy chose to rely on her written materials and did not make oral submissions on this point. [ 117 ] The Crown made a general submission that it interpreted Ms. Eddy’s argument to be an alleged historic failure to provide certain disclosure which had crystalized as a s 7 Charter breach that warranted a stay of proceedings. However, it noted that Ms.

Eddy had in the past made applications for disclosure that had been rejected by the Court, including those in two reported decisions: R v Eddy , 2014 ABQB 164 , 583 AR 217 (Acton J); R v Eddy , 2014 ABQB 234 , 583 AR 254 (Marceau J). The Crown’s conclusion was that Ms. Eddy’s voir dire complaints that related to disclosure address subjects where the Court had already ruled against Ms. Eddy and denied the Crown had any further disclosure obligations. This meant that the voir dire arguments that related to disclosure are a collateral attack on previous judgments. [ 118 ] When I inquired to Ms.

Eddy if there were any novel disclosure-related issues she did not identify any and explained that she had not in the past understood the prohibition against collateral attack. [ 119 ] I therefore conclude that all of Ms. Eddy’s disclosure-related s 7 Charter complaints should be refused because their issues were the subject of prior decisions of this Court. IX. s 7 Charter Breaches - Abuse of Process [ 120 ] Ms.

Eddy alleged a collection of events during her criminal proceeding demonstrate that the Crown has acted in a malicious, vexatious manner, and as a consequence she sought to have the action against her stayed as an abuse of process. She argued that an abuse of process in a criminal prosecution is a residual category of misconduct that may lead to a s 7 Charter breach: R v Nur , 2015 SCC 15 , [2015] 1 SCR 773. [ 121 ] I will respond to the alleged instances of Crown misconduct individually.

A. OPCA Status [122] Ms. Eddy, in her written argument, complains that the Crown engaged in abusive litigation when it identified her as anOrganized Pseudolegal Commercial Argument [“OPCA”] litigant in a number of preliminary hearings.

The “OPCA” term was coined bymyself in Meads v Meads, 2012 ABQB 571, 543 AR 215, to identify a collection of pseudolegal arguments that are sold on acommercial basis by “OPCA gurus” on the basis that these strategies will purportedly defeat genuine legal obligations, enforce demandson government and private actors, and ‘money for nothing’ scams to provide funds from secret, concealed sources. Ms. Eddy, in the oralhearing, relied on her written argument on this point. As I understand it, Ms. Eddy argued that her being associated with vexatious OPCAlitigants breaches her s 11(

d) Charter presumption of innocence, and is discriminatory, contrary to s 15 Charter. [123] The Crown agreed that Ms. Eddy was identified as an OPCA litigant, and acknowledged that Ms. Eddy has not employed any ofthe disruptive and vexatious techniques or strategies stereotypically used by OPCA litigants. The Crown observed that Meads v Meads,at paras 646-647, places a positive obligation on lawyers to identify OPCA litigants and dissect out relevant issues from futile andirrelevant OPCA matters to assist the courts in reducing the scope of spurious and vexatious OPCA litigation. The Crown argued thatMs.

Eddy has neither experienced harm or prejudice to her rights to be presumed innocent, nor has her opportunity to have a fair trialbeen affected by her being identified as an OPCA litigant. The OPCA litigant designation is principally an administrative designationthat indicates a person requires additional court attention. [124] First, I wish to confirm that Ms.

Eddy, in this voir dire, and in my review of this action, has at no time exhibited any indicationof being an OPCA litigant - that is to say, she has not argued OPCA pseudolaw and her materials scrupulously have avoided thosevexatious and abusive strategies. I find, as fact, that she is correct in saying she is not an OPCA litigant. That said, she is not an entirestranger to the OPCA phenomenon. She has been apparently involved with notorious Detaxer guru Russell Porisky and his PEGorganization: Meads v Meads, at paras 87-98.

Porisky and PEG propagated a universally rejected OPCA anti-tax scheme that “naturalpersons” are not required to pay income tax: R v Klundert, 2008 ONCA 767 at para 19, 93 OR (3d) 81, leave refused [2008] SCCA No522; R v Lindsay, 2011 BCCA 99 at para 27, 302 BCAC 76, leave refused [2011] SCCA No 265; Kennedy v Canada (Customs andRevenue Agency), (ON SC), [2000] 4 CTC 186, 2000 DTC 6524 (Ont Sup Ct J). The Crown alleges Ms. Eddyparticipated in the PEG scheme as one of the “educator” subordinate gurus.

Whether that or not is true is a question for trial, and not thisvoir dire. [125] What is relevant to the question of whether the Crown engaged in some form of misconduct when it characterized Ms. Eddy asan OPCA litigant is whether this warning was in some manner malicious or intended to harm Ms. Eddy. I conclude it was not. Ms. Eddy,as I have noted, is not entirely unrelated to the OPCA phenomenon. Nor are all of her PEG fellow travellers innocent courtroomparticipants.

For example, PEG Detaxer Gerald Blerot engaged in in-court misconduct which required that he had to be physicallyrestrained by the RCMP: R v Blerot, 2014 SKQB 2 at paras 12, 14, 2014 DTC 5029, affirmed 2015 SKCA 69. In brief, the Crown had areasonable basis to have a concern Ms. Eddy may engage in OPCA-related misconduct.

To her credit, she has not, and the Crown has notpersisted in continuing to flag her in this manner without basis. [126] More broadly I believe, on a policy basis, that no sanction or criticism should be advanced against a party who notifies a courtthat litigation has a potential OPCA character where that is a reasonable possibility. OPCA litigation is by definition frivolous,vexatious, and an abuse of process: Meads v Meads. As I noted in ANB v Hancock, 2013 ABQB 97, 557 AR 364, the fact an individualis an OPCA litigant is not relevant to the validity of their action or arguments (para 19).

Those are tested on their merits - and if they areOPCA-based, they fail. However, OPCA affiliation is also associated with a range of litigation and criminal misconduct: para 20.

SomeOPCA litigants who have appeared in this Court are potentially very dangerous persons, such as the Montana Freeman Dale Jacobi whois described in Perreal v Knibb, 2014 ABQB 15, 581 AR 275. [127] All OPCA arguments are a basis for a vexatious litigant order: Meads v Meads; R v Fearn, 2014 ABQB 233 at para 49, 586AR 182; Chutskoff v Bonora, 2014 ABQB 389 at para 92, 590 AR 288, affirmed ABCA 444, 2014 ABCA 444 , 588 AR 303.Canadian courts recognize that deployment of certain kinds of pseudolegal argument presumptively indicate a litigant operates in badfaith and with ulterior motives: Fiander v Mills, 2015 NLCA 31 at paras 37-40.

The unique threat and abusive and disruptive characterof OPCA litigation requires open communication so that appropriate steps may be taken to control the negative potential effects of theseconcepts and their proponents. [128] I therefore conclude that Ms. Eddy’s complaint of being improperly classified as an OPCA litigant is accurate, but it does notindicate an abuse of process by the Crown. I conclude, on a balance of probabilities, that it was reasonable for the Crown to indicate apotential OPCA character to Ms. Eddy’s conduct given her association with Porisky and PEG.

This notification to the courts provedunnecessary, but Ms. Eddy has not suffered any prejudice to her Charter rights as a consequence. [129] I note in passing that, at the closing of Ms. Eddy’s voir dire, the Crown suggested it would make an application to prohibit Ms.Eddy from advancing the “natural person” Detaxer argument promoted by Porisky and the PEG. Ms. Eddy indicated she had no intentionof making any argument of that kind, which is again to her credit, since to do so would obviously be futile given Canadian jurisprudenceon that subject. B. s 11(

d) Charter Breaches - Presumption of Innocent [130] One of Eddy’s complaints is that the Crown breached s 11(

d) Charter by CRA investigators stating in communications to theRCMP that Ms. Eddy was engaged in tax-related illegal activity as part of the PEG organization. As I understand it, Ms. Eddydistinguishes between appropriate communication, which would say she was “alleged” to have engaged in this misconduct, vs themanner in which the CRA investigators simply stated she had acted illegally. [131] Ms. Eddy, in her written materials, also complained of being associated with the PEG and Porisky, which she says subverts herpresumption of innocence.

[132] I reject these complaints on two bases. The first is that Ms. Eddy misunderstands the scope of s 11(

d) Charter, which reads: 11. Any person charged with an offence has the right ... (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; [133] The right to be presumed innocent only related to the onus of proof on the Crown in a criminal trial, and codifies the historicthreshold applied in common law tradition courts when adjudicating criminal proceedings: R v Oakes, (SCC), [1986] 1SCR 103, 26 DLR (4th) 200. As I explained to Ms. Eddy, there is no Charter right to not be accused of being a criminal.

A statement ofthat kind may be defamatory, but it does not trigger any constitutional protection. [134] Further, the manner in which the CRA actors communicated Ms. Eddy’s (alleged) misconduct is simply a form of operationalshort-hand used by those in the criminal justice system for those accused of such misconduct, and I see nothing sinister or inappropriatein that. C. Crown Document Manipulation [135] Ms. Eddy alleged the Crown and/or CRA maliciously manipulated certain documents that were obtained from the RCMP. Theevidence of this was that Ms.

Eddy had obtained these documents in two ways: a personal document request vs as part of the Crown’sdisclosure. Ms. Eddy noted the version obtained from the RCMP is marked with marginal notations, such as that this document wasreleased as part of a Privacy Act request. [136] I conclude that Ms. Eddy has not proven, on a balance of probabilities, that the variations between the two document setsindicates any wrongdoing or malicious conduct on the parts of the CRA and/or Crown Prosecutors.

The differences between thedocuments are just as easily (and I think more likely) explained by the RCMP annotating the documents sent to Ms. Eddy during thePrivacy Act review and release process. [137] Ms. Eddy also repeated her ‘true copy’ argument as an alleged basis for supposed vexatious litigation by the Crown. I reject thaton the same basis as

Part VE above. She also argued certain redactions were improper. However, the Crown provided affidavit evidencethat the version of the RCMP documents it provided to Ms. Eddy were the same as what it had received from the RCMP. I accept thatevidence. D. Failure to Adhere to Tax Operation Manual Guidelines [138] Ms. Eddy also alleged that the Crown failed to follow the guidelines in the CRA Tax Operation Manuals [“TOMs”] for whenan income tax matter should be the subject of a criminal investigation and prosecution.

In brief, she argued that she does not fall into thecategory that warrants the most aggressive response. She says R v Borg, 2007 ONCJ 451 at para 44, [2008] 3 CTC 102, indicated TOMsguidelines are mandatory. [139] The Crown responded that the TOMs guidelines are just that, guidelines, and at most represent internal policy. I agree. TheTOMs guidelines have no particular weight in law. This certainly is not evidence of a wrongful prosecution or other abuse of process. Ialso note that, in any case, on my review of the TOMs guidelines, Ms.

Eddy qualified for criminal investigation and prosecution as anindividual who promoted tax evasion schemes. E. The Volume of Disclosure [140] Ms. Eddy argued that the Crown must have engaged in abuse of process because the volume of disclosure has increased from 4to 20 gigabytes, despite the Crown having stated it had made complete disclosure early in the proceeding. Ms. Eddy did not dissect thesubsequent disclosure to identify how that indicated improper or abusive purposes by the Crown. She appears to chiefly rely on thevolume of information.

In her written argument, she also complained the Crown improperly delayed interviewing certain potential trialwitnesses. The Crown noted that, in a sense, Ms. Eddy’s complaint is rather ironic since she advanced many requests for disclosure in theperiod running up to trial. [141] Ms. Eddy misunderstands the Crown’s obligation. It is to disclose potentially relevant information that is has identified and thatis in its possession: R v Stinchcombe, (SCC), [1991] 3 SCR 326, 120 AR 161.

There is no legal principle that the Crowncannot continue to investigate and obtain evidence after it lays charges against an accused. It does, however, have an obligation todisclose that new information - if relevant - in a timely manner. F. The Third Party Cheque [142] Ms.

Eddy argued that one part of the banking records that the Crown had identified as relevant to the quantum of her taxevasion is a cheque that has no relationship to her, and that the fact this cheque was advanced against her indicates the Crown’sprosecution as a whole was malicious and an abuse of process. [143] I conclude this is a question for trial and not an appropriate voir dire subject. In any case, the Crown indicated it does not planto re

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