R v Bagri, 2016 ABQB 470

Court of Queen’s Bench of Alberta Citation: R v Bagri, 2016 ABQB 470 Date: 20160823 Docket: 121309215Q1, 121226039Q1 Registry: Calgary Between: Her Majesty the Queen Respondent - and - Parvinder Singh Bagri Applicant (Accused) - and - Calgary Police Service Third Party

Restriction on Publication Preliminary Inquiry – See the Criminal Code,

section 539 . By Court Order, this decision and the evidence given in the preliminary inquiry must not be published, broadcast, or transmitted in any way. NOTE: This decision is available from the court file, and it may be published after the accused is discharged after a preliminary inquiry or, if the accused is committed to stand trial, after the end of the trial. 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 Permission having been given to the jurors to separate, information concerning this portion of the trial must not be published, broadcast, or transmitted in any way.

NOTE: This decision is available from the court file, and it may be published after the jury retires to consider its verdict. UPDATE – This matter has concluded and accordingly, the above publication bans have expired. _______________________________________________________ Memorandum of Decision on O’Connor Application ( Bagri #2 ) of the Honourable Madam Justice E.A.

Hughes _______________________________________________________ [ 1 ] The applicant, Parvinder Singh Bagri, is a co-accused before the court on two indictments that allege various offences including trafficking in controlled substances, conspiracy to traffic in controlled substances, weapons offences, proceeds of crime offences and criminal organization offences. [ 2 ] These offences arise from a police investigation named Project Alderman. As part of the investigation, an authorization, PA #1658, was obtained to intercept Mr. Bagri’s private communications at locations including Mr.

Bagri’s residence and a vehicle associated to him. [ 3 ] The affidavit in support of the authorization informed the issuing justice that earlier in the year, an authorization was granted in a homicide investigation named Project Chillin’, in which Mr. Bagri was a ‘principal known person’, listening devices might be installed at Mr. Bagri’s residence, and his phone was being intercepted. At this time, no one has been charged in the Project Chillin’ homicide investigation. [ 4 ] After PA #1658 was granted, the primary investigator on Project Alderman, Sgt.

McCurdy, made a request of the RCMP Special “I” to have listening devices installed in Mr. Bagri’s residence and vehicle. Sgt. McCurdy was informed that Special “I” had previously installed devices at these locations pursuant to the Project Chillin’ authorization.

As a result of these devices already having been installed in locations permitted by the authorization, PA #1658, the investigators in Project Alderman determined it “...would not have been practical or in the public interest to risk additional installment....” Instead, an additional connection for Project Alderman was completed by Special “I”, and interceptions from the earlier installed devices were routed through the RCMP line room in Winnipeg, Manitoba. [ 5 ] Sgt. McCurdy swore in his affidavit that this was done “... to insure there was no crossover with Project Chillin’ which was routed to Calgary.

The Project Alderman lines were always maintained separate from any other investigations even though the specific device or equipment was common.” [ 6 ] There is no issue the authorization, PA#1658, permitted: 1) the interception of Mr. Bagri’s private communications; 2) devices to be installed at the residence and in any vehicle used by Mr. Bagri; and

3) covert entry to both the residence and vehicle. [7] The Crown intends to tender in evidence at the trials of each co-accused the intercepted private communications of Mr.Bagri and his co-accused from the Project Alderman authorization, PA#1658. [8] In a hearing on the initial threshold, Mr.

Bagri previously sought production of the authorizations and affidavits in support,intercepted communications, and any reports, notes communications, assessments and any other records concerning him from ProjectChillin’ on the basis that they are first party records governed by R v Stinchcombe, (SCC), [1991] 3 SCR 326(“Stinchcombe”). [9] I ruled in R v Bagri, 2016 ABQB 119 (“Bagri #1”)[1] that the materials sought from Project Chillin’ were not first partyrecords in the possession of the Public Prosecution Service of Canada (“PPSC”), the prosecuting crown.

Therefore, I concluded thatproduction is governed by R v O’Connor, (SCC), [1995] 4 SCR 411 (“O’Connor”). [10] Mr. Bagri now seeks production of materials from Project Chillin’ [2] on the basis that they are third party records that arerequired to be produced pursuant to the process in O’Connor. The specific materials from Project Chillin’ for which production is soughtinclude: • any authorization(

s) to intercept private communications pursuant to which the private communications of the applicantwere intercepted; • the affidavits sworn in support of the applications for such authorizations; • transcripts and recordings of any of the applicant’s private communications intercepted thereunder; • records regarding the hookup, installation and removal related to telephones or devices used intercept the applicant’s privatecommunications; • source materials referred to by the Affiant regarding the applicant, including all information relating to how he came to beknown to the police and, • all police officers’ notes relating to the above items. [11] Mr.

Bagri submits at para 9 of his Brief that these materials are: ...likely relevant to the manner in which evidence to be led at his trial was acquired by the police and that he requires the informationsought to determine whether or not he might challenge the admissibility of the intercepted private communications the Crown intend totender against him at his trial and to determine if all or any of the evidence to be tendered by the Crown at his trial is derivative evidenceobtained as a result of a breach of his rights under Charter in the prior [Chillin’] investigation. [12] I infer Mr.

Bagri seeks these materials for the purpose of determining if there is anything that may form the basis of a s. 8Charter argument, and in particular, an application to challenge the issuance of PA #1658 in accordance with the test set out in R vGarofoli, (SCC), [1990] 2 SCR 1421 (“Garofoli”). [13] O’Connor established a two-part test for an applicant/accused who seeks production of any materials in the hands of a thirdparty.

R v McNeil, 2009 SCC 3 (“McNeil”) summarized the procedure to be followed in an O’Connor application at para 27: Stated briefly, the procedure to be followed on an O’Connor application is the following. 1. The accused first obtains a subpoena duces tecum under ss. 698(1) and 700(1) of the Criminal Code and serves it on the third partyrecord holder. The subpoena compels the person to whom it is directed to attend court with the targeted records or materials. 2.

The accused also brings an application, supported by appropriate affidavit evidence, showing that the records sought are likely tobe relevant in his or her trial. Notice of the application is given to the prosecuting Crown, the person who is the subject of the recordsand any other person who may have a privacy interest in the records targeted for production. 3. The O’Connor application is brought before the judge seized with the trial, although it may be heard before the trial commences. Ifproduction is unopposed, of course, the application for production becomes moot and there is no need for a hearing. 4.

If the record holder or some other interested person advances a well-founded claim that the targeted documents are privileged, inall but the rarest cases where the accused’s innocence is at stake, the existence of privilege will effectively bar the accused’s applicationfor production of the targeted documents, regardless of their relevance. Issues of privilege are therefore best resolved at the outset of theO’Connor process. 5. Where privilege is not in question, the judge determines whether production should be compelled in accordance with the two-stagetest established in O’Connor.

At the first stage, if satisfied that the record is likely relevant to the proceeding against the accused, thejudge may order production of the record for the court’s inspection.

At the next stage, with the records in hand, the judge determineswhether, and to what extent, production should be ordered to the accused. [14] At the first stage of an O’Connor application, the accused bears the onus of establishing the materials sought are “likelyrelevant”. “Likely relevance” is a higher threshold of relevance than that in the context of Crown disclosure pursuant to Stinchcombe,and was defined by the court in O’Connor at para 22: In the disclosure context, the meaning of “relevance” is expressed in terms of whether the information may be useful to the defence (seeEgger, supra, at p. 467, and Chaplin, supra, at p. 740).

In the context of production, the test of relevance should be higher: the presiding

judge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or thecompetence of a witness to testify. When we speak of relevance to “an issue at trial”, we are referring not only to evidence that may beprobative to the material issues in the case (i.e. the unfolding of events) but also to evidence relating to the credibility of witnesses and tothe reliability of other evidence in the case. See R. v. R. (L.) (1995), (ON CA), 39 C.R. (4th) 390 (Ont.

C.A.), at p.398. [15] At para 24 in O’Connor, the court discussed the burden on an applicant as follows: While we agree that “likely relevance” is the appropriate threshold for the first stage of the two-step procedure, we wish to emphasizethat, while this is a significant burden, it should not be interpreted as an onerous burden upon the accused. There are several reasons forholding that the onus upon the accused should be a low one. First, at this stage of the inquiry, the only issue is whether the information is“likely” relevant.

We agree with L’Heureux-Dubé J. that considerations of privacy should not enter into the analysis at this stage. Weshould also not be concerned with whether the evidence would be admissible, for example as a matter of policy, as that is a differentquery (Morris v. The Queen, (SCC), [1983] 2 S.C.R. 190). As the House of Lords recognized in R. v. Preston, [1993] 4All E.R. 638, at p. 664: ... the fact that an item of information cannot be put in evidence by a party does not mean that it is worthless.

Often, the train of inquirywhich leads to the discovery of evidence which is admissible at a trial may include an item which is not admissible.... A relevance threshold, at this stage, is simply a requirement to prevent the defence from engaging in “speculative, fanciful, disruptive,unmeritorious, obstructive and time-consuming” requests for production.

See Chaplin, supra, at p. 744. [16] In McNeil, the court reiterated these principles, stating at para 33: “Likely relevant” under the common law O’Connor regime means that there is “a reasonable possibility that the information is logicallyprobative to an issue at trial or the competence of a witness to testify” (O’Connor, at para. 22 (emphasis deleted)).

An “issue at trial”here includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, but also“evidence relating to the credibility of witnesses and to the reliability of other evidence in the case” (O’Connor, at para. 22). At this stageof the proceedings, the court cannot insist on a demonstration of the precise manner in which the targeted documents could be used attrial.

The imposition of such a stringent threshold burden would put the accused, who has not seen the documents, in an impossibleCatch-22 position. [17] Most recently, the Supreme Court of Canada considered the O’Connor procedure for the purpose of obtaining records for aGarofoli application in World Bank Group v Wallace, 2016 SCC 15 (“World Bank”).

In World Bank, the court held that to obtain thirdparty records for a Garofoli application, the accused must show a reasonable likelihood that the records will be of probative value to thenarrow issues in the Garofoli application. [18] The court explained at para 116 that: …A typical O’Connor application is designed to deal with production of documents that relate to material issues at trial bearing directlyon the guilt or innocence of the accused.

A Garofoli application is more limited in scope, relating as it does to the admissibility ofevidence, namely intercepted communications...An O’Connor application made in the context of a Garofoli application must be confinedto the narrow issues that a Garofoli application is meant to address. … [19] The court made a number of observations with respect to a third party records application for the purpose of a Garofoliapplication at paras 117-127 of World Bank. A

summary of these observations is as follows: 1. There are generally two ways to challenge a wiretap authorization. 2. One way is through a facial challenge – that is, whether the record before the authorizing judge was sufficient to meet thestatutory preconditions so that the judge could have issued the authorization. I note here that, obviously, the accused does not seek theabove listed information at para 10 for this type of challenge. 3. The second way is by making a subfacial challenge.

Here, an accused calls evidence in a voir dire to establish the record“did not accurately reflect what the affiant knew or ought to have known” at the time the affidavit was sworn: at para 119. In addition,erroneous and illegally obtained information is excised. 4.

Relevant to a subfacial challenge are the words of the court in R v Pires; R v Lising, 2005 SCC 66 (“Pires”) at para 41, thatevidence which: … can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can alsosupport the inference that the affiant knew or ought to have known that it was false. We must not lose sight of the fact that the wiretapauthorization is an investigatory tool. At that stage, a reasonable belief in the existence of the requisite statutory grounds will suffice forthe granting of an authorization.

Upon further investigation, the grounds relied upon in support of the authorization may prove to befalse.

That fact does not retroactively invalidate what was an otherwise valid authorization. [20] The court in World Bank also held the rationale for limiting third party production in the Garofoli context includes the narrowissues at play and that “broad third party production requests can derail pretrial proceedings…A narrow relevance threshold is thereforeneeded to prevent “speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming, production requests…[citationomitted]”: at para 130. [21] The relevance threshold was described by the court in World Bank as follows, at paras 132-134: We agree that these two discovery tools – cross-examination of affiants and third party production orders – should be subject to the same

relevance threshold. Therefore, to obtain third party production in the Garofoli context, an accused must show a reasonable likelihoodthat the records sought will be of probative value to the issues on the application. As with cross-examination of an affiant, it must bereasonably likely that the records will be useful. The “reasonable likelihood” threshold is appropriate to the Garofoli context and fair to the accused. It does not require an accused to firstprove the evidence which is being sought. By the same token, it prevents fishing expeditions and ensures efficient use of judicialresources.

In short, it focuses on the issues relevant to a Garofoli application, which are narrower than those relevant to the case as awhole. As in the case of applications to cross-examine the affiant, the accused will already have access to the documents that were before theauthorizing judge, including the affidavit in support of the authorization (Criminal Code, s. 187(1.4)); Pires, at paras. 25-26). Thesedocuments are clearly relevant and the accused is presumptively entitled to them (Criminal Code, s. 187(1.4); Pires, at paras. 25-26;Ahmed, at para. 30).

The accused also has a right to access the rest of the investigative file under Stinchcombe disclosure, subject ofcourse to the exceptions identified in Stinchcombe and McNeil. This disclosure should be sufficient to enable the accused to show a basisfor third party production requests, if such a basis exists. While an accused has a right to production of relevant documents, there is noright to embark on a fishing expedition. The right does not extend to every document relating to the case, regardless of who holds it orwhere it is.

This is especially so when production is sought in aid of a Garofoli application. [emphasis added] [22] In addition to challenging the issuance of an authorization on a Garofoli application, an accused may challenge the manner inwhich the authorization was implemented, as explained in Pires at para 17: The manner in which the authorization was implemented, of course, is still subject to inquiry by the reviewing court on a Charterchallenge.

In order to be reasonable and hence constitutional, the search must not only be made in accordance with legal authority that isitself reasonable, it must be carried out in a reasonable manner: Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145.However, on this question of whether the authorization was implemented in a reasonable manner, the defence is not left empty-handed asa result of the 1993 Code amendments. As the Crown aptly points out, the more significant post-Garofoli development is thecomprehensive disclosure of investigative materials now required by R. v.

Stinchcombe, (SCC), [1991] 3 S.C.R. 326.Stinchcombe mandates a level of investigative transparency such that it provides the accused with the relevant evidence on how theauthorization was implemented, as well as other details of the investigation. This development can only have enhanced the accused’sability to meet the Garofoli threshold requirement for cross-examination. [emphasis added] [23] The decision in R v Cornell, 2010 SCC 31 is an example of a case where the issue was whether a lawfully authorized searchwas conducted in a reasonable manner. [24] In his submissions, Mr.

Bagri suggests he may challenge both the validity and the implementation of the authorization, andargues that he has met the test of “likely relevance” on two bases. First, the applicant states in his Brief at paras 20 and 21: The information sought relates directly to whether or not the applicant was a “known” person and directly to the manner in which thepolice acquired the intercepted private communications at the places referred to in PA 1648. The World Bank case dealt with a “classic” Garofoli application where the validity of the Authorization was being challenged.

In thecase at bar the Applicant thus far has no basis to challenge the validity of PA 1658 but rather is seeking information relevant to theinformation the police had about him at the time of the application for PA 1658 to compare it to the affidavit supporting thatAuthorization and information relating to the implementation of PA 1658, the execution of the search. In the usual case the informationsought would relate to the authorization utilized in the course of the investigation and be disclosed under Stinchcombe… [25] Second, Mr.

Bagri says the records are “likely relevant” in relation to the manner the authorization was implemented. [26] The position of the third party, Calgary Police Service (“CPS”), is two-fold. First, the CPS argues that Mr. Bagri’s applicationis deficient in that he has not served a subpoena duces tecum upon the CPS, nor has he filed any affidavit evidence showing that therecords sought are likely to be relevant in his trial. The CPS advises the deficiency in failing to serve them with the subpoena is not fatalbut submits the deficiency with respect to the affidavit is. [27] Second, the CPS submits that Mr.

Bagri has not met the requisite threshold of demonstrating “likely relevance” of the ProjectChillin’ materials to an issue at trial, including manner of search, and as a result, his application should be dismissed. [28] The PPSC also submits Mr. Bagri has not met the threshold of “likely relevance”. [29] With respect to the procedural irregularities identified by the CPS, Mr. Bagri agrees he has not served the requisite subpoenanor filed an affidavit. Counsel for Mr. Bagri submits an affidavit was not necessary. [30] I disagree.

It is clear from both O’Connor and McNeil that an affidavit is required, although the majority in O’Connor heldthat courts should be able to waive the need for a formal application in the interests of justice: at para 20. Whether or not a formalapplication is required, “notice must be given to third parties in possession of the documents as well as to those persons who haveprivacy interest in the records”: O’Connor at para 20. [31] This application was filed many months ago.

There is no valid reason for the deficiencies noted by the CPS, nor has Mr.Bagri articulated why the interests of justice are such that he should not have to file an affidavit to support his application. Therefore, Mr.Bagri’s application should be dismissed. However, in this case the third party CPS has been given notice of the application and had anopportunity to respond. As a result, I find this is an appropriate case in which to waive the need for a formal application in the interest ofjustice. I will go on to decide whether Mr.

Bagri has met the “likely relevance” threshold based on the materials filed by counsel. [32] I first consider Mr. Bagri’s argument that the materials sought are likely relevant on a Garofoli application to challenge thevalidity of the authorization. Mr. Bagri concedes in his Brief fairly, as noted above, that he “thus far has no basis to challenge the

validity of PA 1658.” This concession was made after a three week preliminary inquiry and disclosure which consists of 19.2 GB ofinformation, including 1,666 files and 17 folders of materials.

As observed in World Bank at para 134, excerpted more fully above,“...disclosure should be sufficient to enable the accused to show a basis for third party production requests, if such a basis exists.” [33] In addition, I found in Bagri #1 that the only evidence of any information “crossover” between Project Chillin’ and ProjectAlderman was surveillance information provided by Project Chillin’ to Project Alderman one year before the authorization in ProjectAlderman was granted.

This is not a case where the Project Alderman affidavit and authorization were dependent upon the fruits of theProject Chillin’ authorization. Indeed, there is not a scintilla of evidence to suggest this was the case. [34] I also acknowledge it is not uncommon for an accused to allege, where there are a number of authorizations which “piggyback” upon each other, that the earlier authorization was invalid because it was an unlawful search and seizure, and thus the second,which relied upon the first, is also invalid.

There are many examples of this situation, including R v Chang (2003), (ON CA), 170 OAC 37 (CA) and R v Russell, 2012 BCSC 652. Again, this is not the case at bar. [35] Thus, I find the applicant Mr. Bagri has not met the initial threshold that the materials sought are likely relevant, or arereasonably likely to be useful, to a Garofoli application. [36] I turn to Mr. Bagri’s second argument that the materials sought are likely relevant to whether the search was implemented in areasonable manner, including whether the devices were lawfully installed pursuant to the Project Chillin’ authorization.

I find what thatmeans in this case is whether the Project Chillin’ authorization permitted the installation of the devices at the particular locations andwhether the listening devices were installed in a reasonable manner. [37] Like a third party records production application in the context of a Garofoli application, I find the above argument is“...limited in scope, relating as it does to the admissibility of evidence...”, and not the guilt or innocence of the accused. [38] I also find the same justifications for the limiting the scope of the third party application in a Garofoli application applyequally here.

These include that the issue here is narrow; there is a risk of identifying a confidential informant, as well as a risk ofdisclosing information in an unsolved homicide that might jeopardize the integrity of that investigation; and the request could derail theproceedings and cause delay. [39] I find that the authorization itself from Project Chillin, as well as records and police officer notes relating to the hook-ups arelogically probative of the reasonableness of the manner of the search.

For example, did the authorization in Project Chillin’ permit theinstallation of the devices at the two locations in question? [40] Thus, the records that Mr.

Bagri has established may be “likely relevant” to assess the manner of search are three-fold: 1. the authorization in Project Chillin’; 2. records relating to the hook-up and installation of the devices at the two locations in question; and 3. police officer notes respecting the hook-up and installation. [41] Therefore, these documents are to be produced to me with any suggested redactions and privilege claims so that I may reviewthem to determine whether, and to what extent, production should be ordered to Mr. Bagri and his co-accused. Heard on the 17th day of June, 2016.

Dated at the City of Calgary, Alberta this 23rd day of August, 2016. E.A. Hughes J.C.Q.B.A. Appearances: Mr. Richard Cairns, Q.C.

for the Applicant/Accused Mr. Scott Couper for the Respondent/Crown Ms. Donna Spaner for the Third Party Calgary Police Service