R. v. McDonald, 2013 BCSC 2072

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. McDonald , 2013 BCSC 2072 Date: 20131118 Docket: 30925-2 Registry: Dawson Creek Regina v. Thomas Anthony McDonald Ban on publication pursuant to s. 648(1) of the Criminal Code , R.S.C. 1985, c. C-46 Before: The Honourable Mr. Justice Fitch Admissibility of Evidence Obtained Pursuant to One-Party Consent and Third-Party Authorizations to Intercept Private Communications (the " Garofoli Ruling ") Counsel for the Crown: Dione F. Pizzey Paola S.J. Konge Counsel for the Accused: Janet Winteringham, Q.C. Tam C. Boyar Place and Date of Hearing: Vancouver, B.C.

Place and Date of Judgment: Vancouver, B.C. November 18, 2013 A. Introduction [ 1 ] Thomas McDonald is charged with the first degree murder of Earl Dean Jones. The offence is alleged to have been committed in the Dawson Creek area on September 26, 1981. [ 2 ] Mr. McDonald challenges the admissibility of intercepted private communications obtained pursuant to authorizations P15/2011. Associate Chief Justice MacKenzie (as she then was) granted the authorizations on August 31, 2011.

P15/2011 authorized: the interception of Thomas McDonald's private communications with a variety of undercover officers pursuant to s. 184.2(3) of the Criminal Code , R.S.C. 1985, c. C-46 (the "one-party consent authorization"); and, in a separate order, the interception of Thomas McDonald's private communications with third parties pursuant to s. 186(1)(

b) of the Code (the "third-party authorization"). Both authorizations permitted the interception of private communications in relation to the offence of murder. Mr. McDonald's brother, Jeremiah, was also named as a primary target in both authorizations. [ 3 ] Mr. McDonald challenges both authorizations. He contends there was insufficient evidence before the authorizing judge upon which she could be satisfied that there were reasonable grounds to believe that evidence respecting the offence under investigation would be obtained. In addition, and with respect to the third-party authorization, Mr.

McDonald submits there was insufficient evidence before the authorizing judge upon which she could be satisfied that the statutory requirement of investigative necessity had been met. [ 4 ] The Affidavit and Information to Obtain filed in support of authorizations P15/2011 was sworn by Cst. Arlo Kozlowski, a member of the Royal Canadian Mounted Police. The affidavit is 209 pages long. I granted Mr.

McDonald leave to cross-examine the affiant on both the reasonable grounds and investigative necessity requirements. [ 5 ] At the conclusion of the voir dire , I advised counsel that the application was dismissed, with reasons to follow. These are my reasons. B. The Homicide and the History of the Investigation [ 6 ] In the early morning hours of September 26, 1981 Earl Dean Jones, a passenger in a vehicle being driven by his wife, Marilyn, was shot and killed.

The bullet entered the vehicle at the right rear roof support on the driver's side, passed through Earl Jones' head and exited through the front windshield. The killing occurred in a rural area about 14 miles outside of Dawson Creek. [ 7 ] On the night of the offence, Earl and Marilyn Jones socialized in the Windsor Hotel Cabaret in Dawson Creek. Thomas McDonald was also in the bar that evening. He approached Marilyn Jones and asked her to dance. Earl Jones apparently took offence to this and struck Mr. McDonald several times in the face in front of some other patrons. Mr.

McDonald withdrew without retaliating and left the bar. [ 8 ] The day after the offence, Mr. McDonald left British Columbia. He was, from the outset, the prime suspect in the offence.

[ 9 ] Cst. Kozlowski deposed (at paragraph 186 of his affidavit) that he had reasonable grounds to believe Mr. McDonald killed Earl Jones. A considerable body of evidence supports this belief. I do not understand counsel for Mr. McDonald to contest this proposition. The affidavit refers to the following evidence, much of which was obtained in the early stages of the investigation: • A number of witnesses at the Windsor Hotel Cabaret observed Earl Jones striking Mr. McDonald when he learned that Mr. McDonald asked his wife, Marilyn, to dance. Mr.

McDonald withdrew without defending himself saying that he did not want to fight; • Marilyn Jones advised investigators that she left the hotel with her husband, Earl, at about 1:30 a.m. She was driving. Earl Jones was in the front passenger seat. Marilyn Jones noted that they were being followed; • About 14 miles outside of Dawson Creek, Marilyn Jones heard two shots ring out just as Earl turned to reach for a beer in the back seat. She saw the deceased slump over in the passenger seat. Shortly thereafter, she saw a dark coloured pickup truck with about six orange clearance lights speed by her.

Marilyn Jones was of the view that it was the same vehicle that had been following her; • At 3:32 a.m. on the morning of the homicide, RCMP officers stopped Thomas McDonald while he was driving a green pickup at a high rate of speed from the direction of the shooting. The pickup had five orange clearance lights; • Mr. McDonald was stopped approximately 35 minutes after Marilyn Jones called Dawson Creek RCMP about the shooting. It was subsequently determined that by traveling between 60 and 80 miles per hour and using different possible routes, the drive from the scene of the homicide to the location at which Mr.

McDonald was stopped would take between 30 and 48 minutes; • Mr. McDonald provided the officer who stopped him with an address in Fort St. John, British Columbia. The address was subsequently determined to be the residence of his brother, Jeremiah McDonald; • Located on the seat of the pickup being driven by Thomas McDonald at the time of the stop was a box of Remington .30-30 ammunition. One live round was found on the seat beside the box. An empty rifle case was found behind the seat. Mr. McDonald said he did not know where the gun was and that the gun case belonged to his brother, Jerry.

Crime scene examination located a number of lead and copper fragments consistent with a Remington brand bullet in the .30 calibre range; • Janicke Jensen (Jeremiah McDonald's wife at the time of the homicide) advised police that on the day of the homicide, Thomas McDonald (who was staying with them while he was working in the Fort St. John and Dawson Creek areas) came home early in the morning. Jeremiah McDonald got out of bed and had a quiet conversation with Thomas.

She could not hear what was said; • Thomas McDonald informed two other witnesses the night of the homicide that he had further business dealings to attend to in the Fort St. John and Dawson Creek areas before returning to California (where he was living at the time). He said that he expected to be in the area for up to a week; • Contrary to the travel plans Mr. McDonald communicated to others the night of the homicide, he left Fort St. John on the afternoon of the day the homicide was committed on a flight bound for Prince George, British Columbia. Investigation revealed that Mr.

McDonald did not have a reservation for this flight and purchased a one-way ticket using a charge card about 16 minutes before the flight's scheduled departure time; • When RCMP officers interviewed Thomas McDonald in 1983 in Redding, California he recounted being punched by someone in the Windsor Hotel Cabaret the night of the homicide after he asked that person's girlfriend to dance. He acknowledged being stopped by the police on the way to his brother's residence in Fort St. John.

He said that he got up the next morning at about 10:00 or 11:00 a.m. and that Jeremiah McDonald bought him his ticket and he flew down to Vancouver. Thomas McDonald advised that the ticket was purchased only for the Fort St. John to Prince George leg of the flight but he never got off the plane and flew to Vancouver for free. From Vancouver, he flew back to the United States. When asked why he departed suddenly, Mr. McDonald said his departure was planned but he never told anyone about it. Mr.

McDonald's statement to RCMP investigators during the 1983 interview in Redding that his brother, Jeremiah, bought him his plane ticket for the flight from Fort St. John to Prince George is contrary to evidence the police uncovered that Thomas McDonald paid for his own flight using a credit card. Mr.

McDonald's statement to the investigators that his departure was planned is inconsistent with what he told other witnesses and with the fact that his ticket was purchased just 16 minutes before the scheduled departure of the flight he boarded; • Forensic examination of the truck being driven by Thomas McDonald the night of homicide revealed the presence of firearm discharge residue on the hood, front fenders and inside right passenger door. It could not be determined how long this residue would remain after a firearm and had been discharged from the vehicle.

It should be noted that Jeremiah McDonald advised the police that he had previously discharged a gun from the vehicle while shooting at a rabbit; • Mr. McDonald was known to have a bad temper, particularly when he was drinking; • Ruth McDonald, the accused's ex-wife, advised the police that in 1984 she questioned Thomas McDonald about the homicide. He told her it was something she should not know about. [ 10 ] Cst.

Kozlowski deposed at paragraphs 187, 211 and 242 of his affidavit that he has reasonable grounds to believe that Thomas and Jeremiah McDonald discussed the homicide and that Jeremiah McDonald has some knowledge of Thomas McDonald's involvement in the offence under investigation. [ 11 ] Mr. McDonald says there was no evidence before the authorizing judge that he spoke with Jeremiah about the offence. He argues that Cst. Kozlowski failed to provide any evidence that Thomas McDonald and Jeremiah McDonald discussed the details of the homicide.

He submits that "in light of the importance of [this] factor to the reasonable grounds requirement, there is good prospect that [Cst. Kozlowski's unsupported assertion on this point] would have affected the issuance of the authorization."

[ 12 ] I agree that the issue of whether the brothers discussed the homicide is important insofar as it informs the reasonable grounds requirement in relation to the third-party authorization. I do not, however, agree with the position Mr. McDonald advances on this point. [ 13 ] In my respectful view, there was ample evidence before the authorizing judge upon which she could conclude there were reasonable grounds to believe that Thomas and Jeremiah McDonald discussed Thomas's involvement in the homicide the morning of the offence. [ 14 ] At paragraph 187 of his affidavit, Cst.

Kozlowski points out that Jeremiah McDonald initially told the police that his brother, Thomas, arrived at his residence between 3:00 and 4:00 a.m. and they had a brief conversation. Jeremiah said Thomas told him about the police stop, the seizure of the empty gun case and ammunition from the truck, and advised him the police would probably be around to see the gun that was normally kept in the case. Janicke Jensen confirmed the two brothers had a quiet conversation when Thomas came home that night. Jeremiah then drove Thomas to the Fort St.

John airport to catch a last-minute flight. [ 15 ] Following Jeremiah's initial statements to the police, he provided inconsistent, incorrect and/or misleading information to the authorities. The affidavit evidence of Jeremiah McDonald's conduct following the homicide supports an inference that he was aware of his brother's involvement in the homicide and attempted to shield Thomas from detection. [ 16 ] During a follow-up interview with police, Jeremiah McDonald contradicted himself. He said he did not speak with Thomas when Thomas returned to the residence that morning.

His statement on this point also contradicts what Thomas McDonald told investigators in the 1983 interview conducted in Redding, California. Thomas said he did briefly speak with Jeremiah when he got "home" at approximately 3:30 - 4:00 a.m. on September 26, 1981. [ 17 ] In an interview on September 28, 1981 Jeremiah McDonald advised the police that he washed his truck on September 26, 1981 after Thomas left, explaining that it had a lot of mud on it.

In a statement given on December 22, 1981 Jeremiah stated that it was Thomas McDonald who washed the truck. [ 18 ] Jeremiah McDonald advised the police that seven to ten days before the homicide he went hunting with Thomas in the Dawson Creek area. He said they borrowed a .30-30 caliber rifle from a person he could not recall, borrowed a .30-30 caliber rifle and ammunition from their friend, Joseph Default, or that Mr. Default had simply left the .30-30 caliber ammunition in Jeremiah McDonald's truck. Mr.

Default was interviewed and advised that neither Jeremiah nor Thomas McDonald ever borrowed any of his guns and he had never given Jeremiah McDonald any .30-30 ammunition. Further, Mr. Default advised that he used Winchester brand ammunition and could not ever recall buying Remington brand ammunition. [ 19 ] Jeremiah McDonald told the police that Thomas was in town for about a week prior to the homicide. He denied helping Thomas work on a "Cat" that week.

He was contradicted on this point by another witness who advised the police that both Jeremiah and Thomas McDonald worked on the "Cat" that week. [ 20 ] Jeremiah McDonald also told the police that after Thomas McDonald returned to Jeremiah's residence, Thomas mentioned to him that he had to go see Bill Forsythe in Vancouver. Jeremiah advised the police that Mr. Forsythe drank with Thomas McDonald in Fort St. John in the past. Mr. Forsythe advised the police that although he knew of Thomas McDonald, he never met him personally. [ 21 ] The circumstantial evidence set out by Cst.

Kozlowski in the affidavit is more than sufficient to provide reasonable grounds that the two brothers talked the evening of the homicide about what had occurred, that Jeremiah had knowledge of Thomas McDonald's involvement in the homicide, and that the two of them long harboured secrets about an event which must have been among the most significant in their lives. [ 22 ] An Authorization to Intercept Private Communications, targeting Jeremiah McDonald, was granted on October 7, 1981 for 60 days. Cst. Kozlowski reviewed a number of investigative reports prepared in connection with this authorization.

One report noted that, " [Thomas] McDonald is somewhere down south and Jerry [Jeremiah McDonald] has been trying to contact but has been unsuccessful". Toward the end of the 60 days investigators concluded that as there had been absolutely no contact between Thomas McDonald and Jeremiah, there were no grounds to seek an extension of the order. [ 23 ] In 1983 RCMP investigators located Thomas McDonald in Redding, California, following his arrest there on unrelated matters. On May 2, 1983, the RCMP interviewed Mr. McDonald in Redding. He denied involvement in the offence. [ 24 ] Mr.

McDonald's counsel asserts that in the course of this interview the RCMP supplied him with important information about the homicide and the police theory about the route Mr. McDonald took from the Windsor Hotel Cabaret to the scene of the offence. [ 25 ] In support of the application for the third-party authorization Cst. Kozlowski addressed investigative necessity. He deposed that investigators would seek to corroborate any information Thomas McDonald provided to undercover officers by reference to existing evidence. He noted that this comparison is most effective when "hold back" evidence is available. Cst.

Kozlowski advised the authorizing judge that: There is no hold back evidence in this case and as a result there is a compelling need to get corroborating evidence of statements made by Thomas and/or Jeremiah McDonald to undercover operators.

I believe the best, and potentially only, way to corroborate their statements and verify the accuracy of any statements to the undercover operators is to intercept communications between Thomas and Jeremiah McDonald, and/or between Thomas and/or Jeremiah McDonald and others made in the absence of the undercover operators. [ 26 ] In 1986 and again in 1988, Crown counsel advised the police that there was insufficient evidence to prosecute Thomas McDonald for the homicide of Earl Dean Jones. [ 27 ] In 2001, the police learned that Thomas McDonald was living and working in Washington State.

The police initiated "Project Englishman" and planned to target Thomas and Jeremiah McDonald in the United States with an undercover operation. In late 2002 or early 2003, before this undercover operation commenced, Thomas McDonald left the United States for Ireland.

[ 28 ] In September 2009, the police learned that Thomas McDonald had returned to Canada. Canada Border Services Agency had no record of Thomas McDonald's re-entry into Canada. The Unsolved Homicide Unit of the RCMP re-activated their investigation. The Unit gathered background information on Thomas and Jeremiah McDonald, conducted lifestyle surveillance, and obtained a number recorder warrant pursuant to s. 492.2 of the Code . [ 29 ] As set out in the affidavit of Cst.

Kozlowski, these inquiries and investigative steps revealed that Thomas McDonald was, when surveillance commenced, residing at the Haney Motor Hotel in Maple Ridge and maintaining a trailer at a campground in Westbank, British Columbia. He was known to visit and associate with his brother, Jeremiah, who lived in the Town and Country Trailer Park in Surrey, British Columbia.

After leaving the Haney Motor Hotel in approximately May 2011, Thomas McDonald was believed to be staying at his brother's residence at the Town and Country Trailer Park in Surrey when he was in the Lower Mainland. [ 30 ] The number recorder warrant, which was in effect from January 26, 2010 to March 26, 2010 revealed that the phone number registered to Thomas McDonald contacted the phone number registered to Jeremiah McDonald 23 times. The phone number registered to Jeremiah McDonald contacted the phone number registered Thomas McDonald 10 times. The phone number registered to Nickel Bros.

House Moving (where Mr. McDonald told others he was working) contacted the phone number registered to Jeremiah McDonald twice. Based on surveillance conducted by the investigators, Cst. Kozlowski deposed that Thomas McDonald did not appear to have any close personal relationships other than with his brother, Jeremiah (see affidavit of Cst. Kozlowski at paragraphs 116-120). [ 31 ] As reflected in Cst. Kozlowski's affidavit, Thomas McDonald appears to have supplied inaccurate information to regulatory authorities and other agencies on his return to Canada.

He held a valid BC driver's licence with an address in Crofton, British Columbia on Vancouver Island. This address is the residence of Thomas McDonald's sister and brother-in-law. When he renewed his BC driver's licence, Thomas McDonald had registered in his name a 1997 Mazda MPV. The address associated with the vehicle registration comprises the physical address of Mr. McDonald's sister and brother-in-law's residence in Crofton with a P.O. Box number in Maple Ridge rented by Tony [not Thomas] McDonald.

When Thomas McDonald rented this post office box in Maple Ridge, he supplied an inaccurate phone number (one digit off of the telephone number registered to Jeremiah McDonald) and the Crofton address of his sister and brother-in-law (see affidavit of Cst. Kozlowski at paragraphs 109-115). [ 32 ] On December 1, 2010 the police initiated a "Mr. Big" undercover operation targeting Thomas McDonald. The operation had been underway for about eight months with 61 scenarios completed when the

Part VI applications were made. [ 33 ] Cst. Kozlowski described the investigation and its overall objectives at paragraph 121 of his affidavit: The … undercover operators have established a relationship with Thomas McDonald and will attempt to gain his trust. This will be accomplished, in part, by … undercover operators portraying themselves as criminals and members of a criminal organization. Thomas McDonald has been led to believe that some of the scenarios he's participated in are criminal activity and he has been paid for his services. This will continue.

The overall objective of the UCO is to solicit information from Thomas McDonald and/or Jeremiah McDonald in order to determine Thomas McDonald's involvement in the murder of Earl Jones, and to determine Jeremiah's involvement and/or degree of knowledge in the events surrounding the offence. [ 34 ] At paragraphs 122-185 of the affidavit, Cst. Kozlowski summarized the scenarios that had been completed prior to the end of August 2011. [ 35 ] The "bump" (or introductory scenario) occurred on December 1, 2010. It was designed to establish contact between Mr. McDonald and the undercover officers.

It succeeded and led to the introduction of Thomas McDonald to the primary undercover operator. [ 36 ] Following this introduction, the majority of the early scenarios were designed "to continue to develop a bond and credibility between Thomas McDonald and [the primary undercover operator]". Mr. McDonald was initially engaged to do welding work for the primary undercover operator (the "primary"). [ 37 ] By scenario # 5 on January 30, 2011 Mr. McDonald was joining the primary and his associates after work at a pub for drinks, dinner and socializing.

This became a fairly regular feature of the interactions between Mr. McDonald and the primary as the scenarios developed. [ 38 ] On February 19, 2011 (scenario # 9) the primary engaged Mr. McDonald to assist with a vehicle delivery to Whistler. At the conclusion of the scenario, Mr. McDonald and the primary went to the same pub. During this scenario, Mr. McDonald advised the primary that he was on the phone with his brother and subsequently talked with the primary about his brother, Jerry. Mr. McDonald referred to his brother, Jeremiah, as early as scenario # 2 on January 25, 2011. By my count, Mr.

McDonald mentioned or discussed Jeremiah in 21 of the first 61 scenarios. On most of these occasions, it appears that it was Mr. McDonald who inserted Jeremiah's name into the conversation. On February 19, 2011 Mr. McDonald discussed his family situation with the primary, noting that he had sisters and a brother who lived in Ireland. [ 39 ] On February 27, 2011 (scenario # 11) Mr. McDonald told the primary he liked doing the vehicle delivery to Whistler (for which he was paid $200) and could help out with another vehicle delivery during the week. A further vehicle delivery scenario involving Mr.

McDonald occurred on March 2, 2011 (scenario # 12). At the conclusion of that scenario, Mr. McDonald talked to the primary over lunch about his brother, Jeremiah, and his brother-in-law who owned property on Vancouver Island. [ 40 ] Scenario # 14 (on March 9, 2011) was also designed to continue to develop a bond between Mr. McDonald and the primary and establish the credibility of the primary's business. While continuing to do welding work for the primary, they discussed the possibility of Mr.

McDonald doing what was now described as "repo" work. [ 41 ] Scenarios that more explicitly portrayed the primary as engaging in "shady" business transactions commenced with scenario # 15 on March 10, 2011. Mr. McDonald was engaged on this occasion to conduct surveillance on an individual the primary was meeting in a pub. After the meeting was finished, Mr. McDonald and the primary discussed a possible trip to Vancouver Island for a vehicle

delivery and boat repossession. Mr. McDonald shared with the primary on this occasion that his brother was living on Vancouver Island and that he was looking after his brother's place in Surrey and staying there a couple of nights a week. [ 42 ] Similar vehicle delivery, repossession and surveillance scenarios (where the primary engaged the services of Mr. McDonald to surreptitiously observe the activities of a possible "client" the primary was supposedly meeting with) unfolded over the next few weeks. All of these scenarios were to the end of continuing to develop a bond and credibility between Mr.

McDonald and the primary. Some involved overnight trips together. Many involved socializing at restaurants and bars. [ 43 ] On May 3, 2011 (scenario # 22) Mr. McDonald advised the primary that Jeremiah was in poor health. He further told the primary that he spends a lot of time with his brother and goes over to his brother's place several times a week for dinner and beer and often ends up staying the night. [ 44 ] On May 5, 2011 (scenario # 24) Mr. McDonald assisted the primary by escorting a "client" of the primary to a hotel room.

He helped the primary count $100,000, which was supposedly being loaned by the primary to the client. The primary advised McDonald that his "repo" business was just a front for the type of business that was conducted that day. [ 45 ] As these scenarios progressed, the activities engaged in by the primary and other cameo undercover operators involved in the fictitious criminal organization became more explicitly criminal and Mr. McDonald was given a more important and trusted role. For example, on May 18, 2011 (scenario # 26) Mr.

McDonald assisted the primary with the sale of fraudulent debit cards to another undercover operator. Mr. McDonald was aware by this date, if not before, that the primary was engaged in criminal enterprises as he expressed concern to the primary about getting caught. Despite this concern, the primary and Mr. McDonald arranged future scenarios that day. It was also on this date that Mr. McDonald advised the primary that he was now living at his brother's place and had given up his room at the Haney Hotel in Maple Ridge. [ 46 ] On May 28, 2011 (scenario # 28) Mr.

McDonald assisted the primary in transporting a vehicle in which diamonds had been concealed from the United States border to the Lower Mainland. Mr. McDonald was paid $800 for this job. The primary told Mr. McDonald that he was showing him the diamonds because the primary trusted him. The primary also explained the "pecking order" in his organization and planted in Mr. McDonald's mind that he, too, had a boss. [ 47 ] On May 30, 2011 Mr. McDonald called the primary and said that things were not going well.

He confided to the primary that he got into a dispute with another employer for whom he was doing welding work about the amount of his bill. He told the primary that in the course of that dispute, he picked up a logging tool, that he described as having a wooden handle with a big metal pick on the end used for grabbing logs on the water, and slammed it down on his employer's desk telling him that he was going to pay the bill one way or the other. Mr. McDonald told the primary that he knew some people who would go down there and burn the place down.

He also told the primary that had his employer made a move on him in the course of their verbal dispute, he would have nailed him with the pick. I mention this event because it could reasonably be viewed as a product of the development of trust relationship between the primary and Mr. McDonald - a relationship in which Mr. McDonald was prepared to disclose to the primary significant events in his life including disreputable, if not criminal, behaviour. [ 48 ] On June 1, 2011 Mr. McDonald advised the primary that he was available to do work for him as needed. [ 49 ] On June 2, 2011 (scenario # 29) Mr.

McDonald assisted the primary with a $150,000 diamond sale transaction. [ 50 ] On June 3, 2011 (scenario # 30) Mr. McDonald assisted the primary with the movement of a vehicle from Surrey to Penticton. Following the scenario, the primary dropped Mr. McDonald off at his trailer in Westbank where the two of them drank beer and engaged in general conversation. [ 51 ] On June 9, 2011 Mr. McDonald advised the primary that he had been working with his brother in Langley and was having a barbecue at his brother's place. [ 52 ] On June 13, 2011 (scenario # 32) Mr.

McDonald assisted the primary with another vehicle delivery. When the job was done, the two of them watched a hockey game. Mr. McDonald advised the primary that his brother was on Vancouver Island and that he was staying in his brother's "bus" at the trailer park. Mr. McDonald disclosed to the primary that he brought a prostitute from Maple Ridge to the bus the previous evening. [ 53 ] On June 17, 2011 (scenario # 34) Mr. McDonald assisted the primary with another vehicle delivery from the Lower Mainland to the Okanagan. He advised the primary he wanted to continue to work for him. The primary talked to Mr.

McDonald about an upcoming "big score" and held out the prospect that Mr. McDonald would be included in a job that could pay him between $20,000 and $25,000. [ 54 ] On June 20, 2011 (scenario # 35) Mr. McDonald assisted the primary with the delivery of counterfeit bonds, which Mr. McDonald was shown. [ 55 ] On June 22, 2011 (scenario # 36) Mr. McDonald assisted the primary with a money counting scenario involving $110,000 being loaned to a "client".

At the conclusion of this scenario, the primary asked Thomas McDonald if his brother, Jeremiah, would be interested in providing an estimate for some construction work the primary wanted done. Mr. McDonald contacted his brother and told the primary that his brother was interested but was busy until the following week. The primary then discussed upcoming scenarios with Mr. McDonald including a round trip to Montréal to deliver and bring back a "memory stick". Mr. McDonald expressed interest in this upcoming job. [ 56 ] On June 27, 2011 (scenario # 38) Mr.

McDonald delivered to the primary a bag that he was subsequently told contained information about the Kelowna RCMP. There was further discussion about the upcoming trip to Montréal and the "big score". The primary emphasized that he would like to see Mr. McDonald involved in the "big score" and emphasized, as he did in many of the scenarios, the importance of trust, honesty and loyalty between members of the fictitious criminal organization.

[ 57 ] Scenarios 39 - 46 involved Mr. McDonald delivering the "memory stick" to Montréal and socializing with undercover officers held out as members of the primary's criminal organization. Mr. McDonald followed the instructions he was given throughout the course of these scenarios. Mr. McDonald repeatedly advised the undercover officers with whom he socialized in Montréal how much he liked working for the primary. In the course of these scenarios, Mr.

McDonald engaged in social conversation with undercover officers posing as Montréal-based members of the criminal organization about an incident that occurred in Maple Ridge involving a gas station attendant who had been killed. Mr. McDonald commented that if he had been a member of the deceased's family, he would have taken the law into his own hands and that he would not tell anyone about what he was going to do before or after he did it. Mr. McDonald also said to his associates that he had done a few things in his past that he would never tell anyone about.

Although the reference is veiled and accompanied by Mr. McDonald's claim that he would not tell anyone about the "things he has done in the past", it supports a conclusion that the undercover operation was, in its early and non-evidence gathering stages, achieving its objective of developing a trust relationship between Mr. McDonald and members of the fictitious criminal organization. [ 58 ] On July 21, 2011 (scenario # 47) Mr. McDonald assisted the primary with another loan-sharking scenario. On this occasion, the primary asked Mr.

McDonald if his brother (Jeremiah) was still interested in providing an estimate for construction work the primary wanted done. Mr. McDonald said that he would ask his brother about an estimate when his brother returned from the Island in a couple of days. [ 59 ] On July 28, 2011 (scenario # 49) Mr. McDonald assisted the primary with the transportation of counterfeit casino chips, which were shown to him. [ 60 ] On August 3, 2011 (scenario # 51) the primary asked Mr. McDonald to call his brother, Jeremiah, to see if he would review construction estimates the primary had obtained on the work he wanted done. Mr.

McDonald called his brother, Jeremiah, and gave the phone to the primary. The primary and Jeremiah McDonald had a conversation about Jeremiah reviewing estimates the primary had obtained for the construction work. Jeremiah said that he would look at the estimates when he got back to Vancouver Island. [ 61 ] On August 6, 2011 (scenario # 52) Mr. McDonald assisted the primary with another loan-sharking scenario. During this scenario, the primary warned his "client" about the consequences of failing to repay the loan. In a conversation that followed the scenario, Mr.

McDonald told the primary that he took a prostitute with him to Kelowna the previous weekend. He also told the primary he was going to get an apartment in the Lower Mainland as his brother was likely going to move to Vancouver Island permanently and give up his bus in the trailer park. [ 62 ] Scenario # 56 on August 15, 2011 was designed to give Mr. McDonald increased responsibility in the work of the fictitious criminal organization. The scenario involved the sale of counterfeit credit cards to another undercover officer for $120,000. The primary told Mr. McDonald that he wanted Mr.

McDonald to conduct the transaction because he would eventually be doing this kind of work on his own and the primary had big plans for him. Cst. Kozlowski deposes in his affidavit that Mr. McDonald conducted the negotiations on behalf of the primary. Mr. McDonald repeatedly confirmed with the primary that he was "okay with becoming more involved in transactions such as the one that occurred." C. The Operational Plan and its Objectives [ 63 ] Cst.

Kozlowski deposed at paragraph 208 of his affidavit that an Operational Plan had been developed which involved targeting Thomas McDonald and Jeremiah McDonald in a police undercover operation in conjunction with authorizations to intercept private communications pursuant to sections 184.2 and 186 of the Criminal Code . [ 64 ] Cst.

Kozlowski deposed that as the undercover investigation moved into its evidence-gathering stages, various stimulation strategies would be used to promote discussion of the circumstances of the homicide between Thomas and/or Jeremiah McDonald and the undercover operators, between Thomas and Jeremiah McDonald, and/or between Thomas and/or Jeremiah McDonald and third parties. Cst.

Kozlowski deposed that the following undercover scenarios were among those being proposed to accomplish the objectives of the investigation: • Undercover officers would attempt to have Thomas McDonald introduce the primary and/or other undercover operators to Jeremiah McDonald under the guise of having Jeremiah McDonald doing some construction work for the primary; • Thomas McDonald would eventually meet with other members of the fictitious criminal organization to discuss the upcoming "big score"; • During this meeting, everyone in the organization would be required to provide their names and dates of birth so that checks could be done by the primary to ensure that no one had any police "heat" on them; • In the course of doing these phony checks, the primary would claim to have become aware of Thomas and Jeremiah McDonald's involvement in a homicide; • Thomas McDonald would then meet with the "crime boss" of the fictitious criminal organization for whom the primary supposedly worked who would confirm with Thomas McDonald that the police were continuing to investigate his involvement in the offence.

Thomas McDonald would also be informed that the police were interested in finding out Jeremiah McDonald's knowledge of or involvement in the homicide. During this meeting, the crime boss would question Thomas McDonald about his involvement in the offence, as well as the knowledge and/or involvement of Jeremiah McDonald. The crime boss would offer to "take care of" and "clean up" this matter for Thomas McDonald; • As the crime boss scenario was playing out, investigators would attempt to have Jeremiah McDonald at a pre-determined location.

Following the crime boss meeting, the primary would drive Thomas McDonald to Jeremiah McDonald's location and leave them alone, telling them to sort out their story with respect to the homicide; • Cst. Kozlowski deposed (at paragraph 209 (b)) that if undercover officers were unable to draw Jeremiah McDonald to the pre-

determined location on the day of the crime boss interview, it would be necessary for undercover operators to attend Jeremiah McDonald's residence with Thomas McDonald. The undercover officers would then depart in order to provide Thomas and Jeremiah McDonald with the opportunity to discuss the homicide in private. [ 65 ] At paragraph 209 (

a) of the affidavit, Cst. Kozlowski deposed that depending on the dynamics of the proposed operation and unexpected occurrences, it might be necessary to adjust the Operational Plan while keeping the objectives of the investigation intact. [ 66 ] With respect to the proposed one-party consent authorization, Cst. Kozlowski deposed: I believe the execution of the operational plan will afford evidence or admissions from Thomas and Jeremiah McDonald to the undercover operators because each will be confronted specifically about their respective roles in the offence by undercover operators.

During the course of the UCO, undercover operators have developed a relationship and a measure of trust with Thomas McDonald. The credibility of the operators as criminals and of the organization they belong to, as well as the potential rewards available to Thomas McDonald should he become a member of this organization, will all work to encourage Thomas McDonald to provide evidence or admissions.

To date, undercover operators have been unable to establish a similar type of relationship with Jeremiah McDonald and, as a result, it is less certain what his reaction will be, or how forthcoming he will be, when confronted by undercover operators. [ 67 ] Cst.

Kozlowski deposed that while it was likely that Thomas McDonald would provide statements and/or admissions to undercover operators during the course of the investigation regarding his own involvement in the homicide of Earl Jones, "a statement and/or admission alone won't provide the corroboration necessary to meet the overall objective of the investigation of gathering sufficient evidence to support a successful prosecution" (paragraph 232 (a)). Cst.

Kozlowski noted in this regard Thomas McDonald's tendency not to be completely forthcoming with facts as well as the absence of any hold-back evidence and the "compelling need to get corroborating evidence of statements made by Thomas and/or Jeremiah McDonald to undercover operators." [ 68 ] Cst. Kozlowski also deposed that the investigation revealed Thomas and Jeremiah McDonald had regular contact and that Jeremiah McDonald appeared to be the person with whom Thomas maintained the closest personal relationship. Cst.

Kozlowski expressed his belief that while Thomas McDonald may not involve Jeremiah McDonald in the undercover operation or disclose his brother's involvement in and/or knowledge about the offence, it was likely the undercover operation would serve to stimulate conversation between Thomas and Jeremiah McDonald in private. This evidence could only be gathered through the interception of Thomas and Jeremiah McDonald's private communications. [ 69 ] Cst. Kozlowski noted (at paragraph 186) the compelling circumstantial evidence linking Thomas McDonald to the homicide.

He also noted (at paragraph 186) the circumstantial evidence supporting the existence of reasonable grounds to believe that Jeremiah McDonald, at the very least, had knowledge of the offence, his brother's involvement in it, and that he assisted Thomas McDonald in fleeing Fort St. John following the homicide and escaping detection. In this context, Cst. Kozlowski stated his belief that Thomas and Jeremiah McDonald would communicate with one another following the planned crime boss interview.

He deposed: The UCO aside, the fact that Thomas and Jeremiah McDonald will be confronted about an incident that occurred almost 30 years ago, and presumably one that both thought was in the past, will cause them to speak with each other about it. [ 70 ] With respect to the investigative necessity criterion, Cst.

Kozlowski deposed that all conventional avenues of investigation had been pursued (witness interviews, suspect interviews, searches, number recorder warrants, forensic evidence and physical surveillance) and that insufficient evidence to support a prosecution had been gathered. [ 71 ] With respect to suspect interviews, Cst. Kozlowski deposed that both Thomas McDonald and Jeremiah McDonald had been interviewed by the police and that both of them denied any involvement in and/or knowledge about the offence. Cst.

Kozlowski noted that during the 1983 interview of Thomas McDonald in Redding, California, he provided a timeline of his activities before and after the murder occurred but little detail concerning his activities around the time the offence was committed. Cst. Kozlowski deposed that Jeremiah McDonald was interviewed on six occasions as a potential witness and provided conflicting information, including about whether he had a conversation with Thomas McDonald the night of the offence and who washed the truck the day the homicide was committed. [ 72 ] Cst.

Kozlowski deposed that he believed it unlikely that either Thomas or Jeremiah McDonald would now confess, make admissions or provide further information in a formal police interview. In addition, similar to the consequences of conducting additional witness interviews, this approach would reveal renewed police interest in the investigation and undermine the Operational Plan. He deposed that conducting further suspect interviews may also prompt Thomas McDonald to flee the jurisdiction as he had done in the past and/or dispose of any existing physical evidence.

It should be noted, in this regard, the murder weapon was never discovered. [ 73 ] Finally, in light of Thomas McDonald's tendency not to be completely forthcoming with the facts (as demonstrated by the misleading information he provided to various regulatory bodies on his return to Canada) and the absence of hold-back evidence, Cst. Kozlowski deposed that there was a "compelling need" to obtain evidence corroborating any admission made by Thomas and/or Jeremiah McDonald to the undercover operators. Cst.

Kozlowski also deposed (at paragraph 233) that "the likelihood of success for any UCO, and the police investigation as a whole, is heavily dependent on the corroboration of statements made by the target(

s) to the undercover operator(s)". He deposed as to his belief that "the best, and potentially only, way to corroborate their statements and verify the accuracy of any statements to the undercover operators is to intercept communications between Thomas and/or Jeremiah McDonald, and/or between Thomas and/or Jeremiah McDonald and others made in the absence of the undercover operators." D. The Legislative Framework (

a) The One-Party Consent Authorization [ 74 ]

Section 184.2(3) of the Code establishes three conditions precedent to the granting of a "one-party consent" judicial authorization for the interception of private communications:

a) there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will becommitted;

b) either the originator of the private communication or the person intended by the originator to receive it has consented to theinterception; and

c) there are reasonable grounds to believe that information concerning the offence referred to in paragraph (

a) will be obtainedthrough the interception sought. [75] At issue in the case at bar is whether, on the basis of the material before her, as amplified on the review, the authorizing judgecould have found that the criterion set out in s. 184.2(3)(

c) had been met. [76] The reasonable grounds standard requires the demonstration of a credibly-based probability that information concerning themurder of Earl Jones would be obtained by surreptitiously intercepting conversations between Mr. McDonald and the undercoverofficers. Reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credibleinformation. [77] I am obliged to consider the totality of the circumstances in determining whether there were grounds upon which theauthorizing judge could have granted the authorization.

It is important that the affidavit be read in its entirety. I must not conduct thisreview by parsing and microscopically examining words, phrases, or paragraphs in isolation. Further, the assessment of facts relied uponto establish reasonable grounds must be made on a practical, non-technical and common sense basis. (

b) The Third-Party Authorization [78] The key statutory requirements for the issuance of the third-party wiretap authorization are found in s. 186(1) of the Code: 186

(1) An authorization under this

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

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

b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or theurgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigativeprocedures. [79] In accordance with s. 8 of the Charter, the first requirement has been interpreted to mean that there must be reasonable andprobable grounds on which to believe an offence has been committed, or is being committed, and that the authorization sought willafford evidence of that crime: R. v.

Duarte, (SCC), [1990] 1 S.C.R. 30 at 45. [80] The second requirement, investigative necessity, is met where the authorizing judge is satisfied that, practically speaking, thereare no other reasonable alternative methods of investigating in the particular circumstances. The requirement of investigative necessityis not met where all that can be said is that a

Part VI authorization would be the "most efficacious" way of proceeding with theinvestigation. Having said that, in R. v. Araujo, [2000] 2 S.C.R. 992, 2000 SCC 65, the Court held that the phrase "investigativenecessity" must be interpreted in a practical and common sense fashion. It does not mandate a demonstration that all alternativeinvestigative techniques have been tried and have failed. It is not a course of last resort. It is a technique which can be employed notonly when other investigative avenues have failed, but also when they appear to have little chance of success: see R. v.

Hiscock, (QC CA), [1992] R.J.Q. 895, 72 C.C.C. (3d) 303 at p. 325, leave to appeal refused, [1992] S.C.C.A. No. 331, [1993] 1S.C.R. vi, which was cited, with approval, in Araujo at para. 34.

Nonetheless, the reviewing judge must be satisfied there was a basisupon which the authorizing judge could conclude that it was necessary to have recourse to this particular investigative technique. [81] In Araujo, LeBel J., for the Court, determined that s. 186(1)'s investigative necessity requirement must be interpreted withawareness of the two potentially competing values or considerations underlying the provision - enabling criminal investigations andprotecting privacy rights.

He held, at paragraph 29: The words of the Code must be read with some common sense having regard both to the nature and purpose of the particularinvestigation which the police wish to undertake. A pure last resort test would turn the process of authorization into a formalistic exercisethat would take no account of the difficulties of police investigations targeting sophisticated crime. But the authorizing judge must lookwith attention at the affidavit material, with an awareness that constitutional rights are at stake and carefully consider whether the policehave met the standard.

All this must be performed within a procedural framework where certain actions are authorized on an ex partebasis. Thus, the authorizing judge stands as the guardian of the law and of the constitutional principles protecting privacy interests.

Thejudge should not view himself or herself as a mere rubber stamp, but should take a close look at the material submitted by the applicant…The authorizing judge should grant the authorization only as far as need is demonstrated by the material submitted by the applicant.The judge should remember that the citizens of this country must be protected against unwanted fishing expeditions by the state and itslaw enforcement agencies.

Parliament and the courts have indeed recognized that the interception of private communications is a seriousmatter, to be considered only for the investigation of serious offences, in the presence probable grounds, and with a serious testing of theneed for electronic interception in the context of the particular investigation and its objects … There must be, practically speaking, noother reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry. [82] In R. v. Rosebush, 1992 ABCA 293, 77 C.C.C. (3d) 241 at p. 248, leave to appeal dismissed [1992] S.C.C.A.

No. 509, the Courtheld that, "investigative necessity may include the gathering of independent and confirming evidence not reasonably availableotherwise". Although the judgment in Rosebush pre-dates Araujo, the holding in Rosebush is, in my view, consistent with the approachadopted by the Supreme Court of Canada in Araujo that the authorizing judge should look at the issue of investigative necessity througha practical lens and with regard to the objects of the investigation as they are identified in the material filed in support of the application. E. The Test on Review

[83] The task of a reviewing judge is not to decide whether he or she would have issued the authorization but to decide whether, onthe basis of the grounds set out in the supporting affidavit, there was any basis upon which the authorizing judge could have granted thewarrant. As explained in R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421, at para. 56: The reviewing judge does not substitute his or her view for that of the authorizing judge.

If, based on the record which was before theauthorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted theauthorization, then he or she should not interfere. [84] The authorization must be founded on reliable information. Having said that, the question for a reviewing judge is whetherthere was some evidence that might reasonably be believed on the basis of which the authorization could have issued: Araujo, atpara. 51.

Put differently, the task of a reviewing judge is to consider "whether there was any basis upon which the authorizing judgecould be satisfied that the relevant statutory pre-conditions existed": R. v. Pires, [2005] 3 S.C.R. 343, 2005 SCC 66 at para. 30. [85] In a challenge to the facial validity of the authorization, an applicant will argue that the facts set out in the supporting affidavitdo not establish the requisite grounds for the granting of the authorization.

In a sub-facial challenge, the applicant will seek to cross-examine the affiant and tender other evidence on the voir dire for the purpose of demonstrating that the grounds set in the affidavit, asamplified on review, are incapable of supporting the authorization. In either event, the task of the reviewing judge is not to substitute hisor her view for that of the authorizing judge, but to determine whether the grounds in the affidavit, as amplified on review, are such thatthe authorizing judge could have found that the statutory pre-conditions for the issuance of the authorization were met.

In this process,fraud, material non-disclosure and misleading information are all relevant considerations on the question of whether there continues to beany basis on which the authorization could have been granted. [86] Counsel for Mr. McDonald appears to suggest that if an applicant has been granted leave to cross-examine the affiant, the test tobe applied is whether the reviewing court could grant the authorization on the basis of the materials as amplified on review.

No casedirectly in support of this proposition was cited and I reject it as being inconsistent with the well-established line of authority guiding thetest on review: see also R. v. Morelli, [2010] 1 S.C.R. 253, 2010 SCC 8, per Fish J. at paras. 40-43; per Deschamps J. (dissenting) atparas. 130-132. [87] Although Mr. McDonald was permitted to cross-examine the affiant on issues going to both reasonable grounds andinvestigative necessity, he does not strenuously argue that the affiant failed to make full, frank and fair disclosure.

Indeed, it is my viewthat the cross-examination of the affiant added very little, if anything at all, to Mr. McDonald's contention that the authorizing judge hadno basis to grant the authorizations. Although I am obliged to consider on review the facial and sub-facial validity of the authorizations,it is fair to say that the primary thrust of Mr. McDonald's argument continues to be that, on the basis of the information set out inCst. Kozlowski's affidavit, the authorizing judge could not be satisfied that the statutory pre-conditions for granting either the one-partyconsent or third-party authorizations existed.

F. Analysis (

a) The One-Party Consent Authorization - Reasonable Grounds [88] Mr.

McDonald argues that there was no basis upon which the authorizing judge could be satisfied there were reasonablegrounds to believe that evidence respecting the homicide of Earl Jones would be obtained by intercepting his private communicationswith undercover police officers. [89] He makes three principled submissions in support of this argument. [90] First, he submits that despite the fact the investigation had been underway for more than eight months, and 61 scenarios hadtaken place at the time the application for the one-party consent authorization was made, he had not provided any information regardinghis involvement in the Jones' homicide.

Cst. Kozlowski disclosed this state of affairs at paragraph 28 of his affidavit, noting that "todate, Thomas McDonald hasn't provided any information regarding his involvement in the murder of Earl Jones" (see also paragraph233). Mr. McDonald contrasts the case at bar with the circumstances in R. v. Niemi, 2012 ONSC 6385 and R. v. Redd, [1999] B.C.J.No. 1471 (S.C.).

He notes that in both of those cases the target made an admission to the undercover operator about his involvement inthe offence (Redd) or mused that he had perhaps killed the victim but simply could not remember doing so (Niemi) before the applicationfor the authorization was made. He submits that this fact featured prominently in the assessment of the reviewing court that there was abasis upon which the authorizing judge could have found the statutory criteria to have been met. Mr.

McDonald asserts that in theabsence of the kind of inculpatory utterance made in Niemi and Redd, the authorizing judge could not have come to the conclusion thatthere existed a credibly-based probability that the authorization sought would afford evidence of the crime. [91] Second, he asserts that Cst. Kozlowski makes the "bald, conclusory statement" in the affidavit that there are reasonable groundsto believe evidence concerning the offence will be obtained through the authorization sought, but never explains how the undercoveroperation would produce evidence respecting the homicide.

He submits that the affiant does not provide any information concerning theeffectiveness of the undercover homicide technique, or the basis for his belief that Mr. McDonald will incriminate himself in theundercover operation. He asserts that while the affiant does reference progression of the undercover operation to the evidence-gatheringstage (at paragraph 237) Cst.

Kozlowski "does not go on to describe what is involved in the evidence-gathering scenarios and does notstate (or explain how) the techniques used in those scenarios may encourage the target to incriminate himself". [92] Third, he submits there was no evidence before the authorizing judge (and no basis upon which a conclusion could be reachedthat there were reasonable grounds to believe) that the undercover homicide technique would be effective in this case. He submits thatdespite reviewing most of the scenarios undertaken prior to the application, Cst.

Kozlowski provided no evidence as to the progress ofthe undercover operation when he swore the affidavit, does not say whether the objectives of the scenarios were achieved, and fails toexplain how there were reasonable grounds to believe that future scenarios would afford evidence of his participation in the homicide. [93] I would reject Mr. McDonald's first argument, implicit in his reliance on Niemi and Redd, that in order to establish the requiredreasonable grounds, the target must already have made a self-incriminating statement with respect to the offence under investigation.

Whether the target has done so is obviously relevant to the question of whether there is some evidence upon which the authorizing judge could have found that the criterion in s. 184.2(3)(

c) had been met. This kind of evidence is not, however, a precondition to the issuance (or validity) of an authorization. To hold otherwise would be unfaithful to the language of the statutory provision in issue and the manner in which that provision has been judicially interpreted. Adopting Mr. McDonald's position on this point would erect an inflexible, less nuanced and much higher threshold for the issuance of an authorization than is currently the case. I do not consider such an approach to be necessary, warranted or desirable. [ 94 ] I will deal with Mr.

McDonald's second and third arguments together. [ 95 ] In my respectful view, there was reliable evidence before the authorizing judge upon which she could be satisfied that the statutory preconditions for the issuance of the one-party consent authorization had been established. I reject Mr. McDonald's contention that the affidavit consists of little more than Cst. Kozlowski's bald, conclusory statements he had reasonable grounds to believe that evidence concerning the homicide would be obtained through the interception sought. I would also reject Mr.

McDonald's contentions that the affidavit fails to: disclose whether the objectives of the 61 scenarios employed prior to the making of the application were achieved; describe what is involved in the evidence-gathering scenarios; and explain how the proposed investigative techniques to be used in conjunction with the sought-after authorization would afford evidence respecting his involvement in the homicide. [ 96 ] Considering the evidence before the authorizing judge as a whole and assessing the facts relied upon to establish reasonable grounds on a practical, non-technical and common sense basis, it is my view the affidavit supports the following conclusions: • There were reasonable grounds to believe that Thomas McDonald was responsible for the homicide of Earl Jones; • The 61 scenarios utilized prior to the making of the application were expressly designed to: (1) develop or continue in the development of a bond between the primary operator and Mr.

McDonald, and (2) establish the credibility of the primary and the fictitious criminal organization for whom Mr. McDonald was working; • These bonding and credibility development scenarios achieved their intended purpose. On the basis of the evidence supplied by Cst. Kozlowski in his affidavit, coming to the conclusion that the scenarios achieved their intended purpose does not require speculation. It is simply a matter of putting two and two together; • Mr.

McDonald was slowly brought into the operations of the fictitious criminal organization and, by the time the authorization was sought, was regularly following instructions and participating with the primary in what he believed to be a variety of criminal acts (diamond smuggling, loan sharking, selling fraudulent credit and debit cards, and obtaining counterfeit casino chips). Mr. McDonald's responsibilities within the fictitious criminal organization were also increasing. He was given the responsibility of delivering and bringing back the "memory stick" to and from Montréal. On August 15, 2011 (scenario # 56) Mr.

McDonald took the lead in the sale of what he believed to be counterfeit credit cards to another undercover operator. In addition to being drawn into the inner sanctum of the fictitious criminal organization, Mr. McDonald clearly enjoyed working for the primary and receiving the benefits of doing so. He repeatedly said this to others. Continued participation in the activities of the criminal organization entailed, from Mr. McDonald's perspective, the prospect that he would receive a substantial payment in relation to the "big score". Mr.

McDonald was aware that continued participation in the activities of the organization, and the benefits to be derived therefrom, was also dependent on his preparedness to demonstrate honesty, loyalty and trust to the organization and its members. In short, Mr. McDonald was fully engaged in the criminal operations of the organization at the time of the

Part VI application and had a strong financial incentive to remain connected to the primary and the overall organization; • Additionally, it is apparent from the affidavit that the scenarios had achieved the objective of creating a personal bond between the primary and Mr. McDonald. They were spending a good deal of time together traveling and working. A number of their business engagements involved overnight travel. They would regularly dine, drink and socialize with one another. It is not a leap to conclude that the bond between the primary and Mr.

McDonald was strengthened by virtue of the illicit nature of the activities in which they were (purportedly) jointly engaged. In this context, Mr. McDonald confided in the primary about issues in his personal life, including his relationship with his brother and other family members, and his use of prostitutes. In addition, Mr. McDonald confided in the primary about an event that demonstrated disreputable, if not criminal, behaviour on his part. I refer here to the disclosure Mr. McDonald made to the primary about his threatening behaviour when a dispute about payment arose with another employer.

The event suggests that Mr. McDonald had come to regard the primary as a confidant and as an individual to whom he would look for support and guidance. Finally, Mr. McDonald advised undercover operators in Montréal, when speaking about his preparedness to take the law into his own hands in order to exact revenge, that he had done a few things in the past that he would never tell anyone about. While I would not make too much of this comment for the reasons expressed earlier, the fact that Mr.

McDonald alluded to past misdeeds in the context of this conversation would certainly suggest that he trusted his underworld associates with private information of the sort that would not normally be shared with others; • Mr. McDonald was led to believe that the organization was capable of obtaining police information. I refer here to scenario # 38; • While it is true that when the application was made Mr.

McDonald had not provided any information to the undercover officers about his involvement in the homicide of Earl Jones, he had not yet been confronted with information that the police were re- investigating his involvement (and the involvement of Jeremiah McDonald) in the offence. This was to be done in the evidence- gathering scenarios which were fully disclosed in paragraph 208 of the affidavit - a paragraph spanning 12 pages.

The proposed evidence-gathering scenarios, which were to run concurrent with the authorization if it was granted, are set out earlier in these reasons and will not be repeated here; • Against this background, it was open to the authorizing judge to conclude there existed reasonable grounds to believe that upon being confronted by the "crime boss" with information that the police were showing renewed interest in the McDonald brothers' connection to the Jones' homicide (information Mr.

McDonald was led to believe the criminal organization might be able to find out) Thomas McDonald would, as is suggested in paragraph 231 of the affidavit, opt to make incriminating statements to his criminal associates, including to his friend and confidant the primary operator. His incentive to do so would be driven by the assurance of the

crime boss that he could "take care" of the matter on Mr. McDonald's behalf. In addition to putting this old worry to rest, "taking care" of the matter would clear the way for Thomas McDonald's participation in the financial rewards associated with the "big score". [ 97 ] For the foregoing reasons, there was a basis upon which the authorizing judge could be satisfied there were reasonable grounds to believe evidence respecting the homicide of Earl Jones would be obtained by intercepting communications between Mr. McDonald and the undercover officers engaged in this investigation. (

b) The Third-Party Authorization (

i) Reasonable Grounds [ 98 ] Mr. McDonald argues there was no basis upon which the authorizing judge could be satisfied there were reasonable grounds to believe that the McDonald brothers would talk about the homicide during the currency of the wiretap authorization. [ 99 ] He makes four submissions in support of this argument. [ 100 ] First, he argues that Cst. Kozlowski provided no direct evidence about whether Thomas had ever spoken with Jeremiah about the homicide of Earl Jones and, even if he did, the extent to which they discussed this incident. I accept that the extent to which Mr.

McDonald provided Jeremiah McDonald with information about the homicide was not known at the time of the application. This was disclosed in paragraph 211 of Cst. Kozlowski's affidavit. But I reject Mr. McDonald's contention that there was no reliable evidence before the authorizing judge capable of supporting a conclusion that the brothers discussed the homicide. While it is true there was no direct evidence of this, a body of circumstantial evidence before the authorizing judge supported the belief that the brothers discussed the offence the day it was committed.

My reasons for coming to this conclusion are summarized earlier and will not be repeated here. [ 101 ] Second, Mr. McDonald submits that Cst. Kozlowski's asserted belief that Thomas and Jeremiah McDonald discussed the circumstances of the offence is misleading. He submits it is inconsistent with the fact that no conversations between Jeremiah McDonald and Thomas McDonald were intercepted during the 60-day period of the authorization granted in 1981. Cst. Kozlowski's affidavit at paragraphs 87-91 discloses that no conversations between the brothers were intercepted during the 1981 authorization.

I do not accept Mr. McDonald's submission that the affidavit is misleading on this point. Cst. Kozlowski's belief that the two brothers discussed the circumstances of the offence immediately following its commission is not inconsistent with the fact that there was no telephone contact between them in 1981 after Mr. McDonald left Fort St. John while the first authorization was in effect. Cst.

Kozlowski's belief that the two brothers discussed the homicide is based on the evidence of Jeremiah McDonald and Janicke Jensen that they did have a conversation when Thomas McDonald returned to Jeremiah's residence in the middle of the night just a few hours after the offence was committed. It is also grounded in the behaviour of both brothers immediately after the offence and the inconsistent, misleading and/or untruthful accounts both of them gave relating to the events that day.

This evidence supports the inference that Jeremiah McDonald knew about his brother's involvement in the homicide and was taking steps to assist him in evading detection. [ 102 ] Third, Mr. McDonald argues that even if there was evidence before the authorizing judge that the brothers talked about the offence the day it was committed, it could not support the further inference that they would talk about the offence some 30 years later. [ 103 ] Fourth, Mr.

McDonald submits that while the affiant makes a number of statements concerning the stimulation of conversation between Thomas and Jeremiah McDonald, he does not provide the details of those scenarios, the plan for bringing Jeremiah McDonald into the undercover operation, or the basis for his belief that the proposed undercover operation would be successful in stimulating conversation between the two brothers. He notes that while the undercover operation had been successful in developing a relationship and measure of trust between him and the primary operator, Cst.

Kozlowski acknowledged in his affidavit that "undercover operators have been unable to establish a similar type of relationship with Jeremiah McDonald and, as a result, it is less certain what his reaction will be, or how forthcoming he will be when confronted by undercover operators" (paragraph 231). [ 104 ] I will deal with Mr.

McDonald's third and fourth arguments together. [ 105 ] In my respectful view, there was evidence before the authorizing judge upon which she could conclude there were reasonable grounds to believe that evidence respecting the homicide of Earl Jones would be obtained by intercepting communications between Thomas and Jeremiah McDonald. [ 106 ] Considering the evidence before the authorizing judge as a whole and assessing the facts relied upon to establish reasonable grounds on a practical, non-technical and common sense basis, it is my view that the affidavit supports the following conclusions: • There were reasonable grounds to believe that Thomas McDonald was responsible for the homicide of Earl Jones; • There were reasonable grounds to believe that in the early morning hours following commission of the offence Thomas McDonald provided his brother, Jeremiah, with information concerning his involvement in the homicide; • There were reasonable grounds to believe that Thomas McDonald turned to his brother, Jeremiah, for assistance in the hours after the homicide and that Jeremiah supplied that assistance in order to shield Thomas from detection; • There were reasonable grounds to believe that the brothers shared a secret about what was discussed that evening, the incident was a momentous one for both of them, and the knowledge they carried was a burden and worry even 30 years after the incident occurred; • Thomas and Jeremiah McDonald had a close relationship and were in frequent contact with one another (personally or by telephone) when the application for the authorization was made; • Thomas McDonald was proud of his brother, Jeremiah.

Given the nature of their relationship, the obvious regard Thomas had for his brother, the number of times Thomas mentioned Jeremiah in the scenarios, and the extraordinary secret they likely shared, the evidence established a credibly-based probability that Thomas would turn to his brother, Jeremiah, for guidance and support at a time of

great need. This is particularly so in light of the fact that Thomas was to be told that renewed police interest in the investigation included the role Jeremiah played in the aftermath of the offence, and the extent of his knowledge with respect to the homicide; • Contrary to Mr.

McDonald's assertion, the affidavit does provide details respecting the proposed scenarios and the plan for bringing Jeremiah McDonald into the undercover operation (paragraphs 208, 231 and 242); • That plan involved engineering a "great need" in Thomas McDonald's mind by confronting him with information that the police were continuing to investigate the involvement in and/or knowledge of both brothers concerning the homicide of Earl Jones; • It was open to the authorizing judge to conclude there were reasonable grounds to believe that the investigative plan would successfully bring Thomas and Jeremiah McDonald together after Thomas McDonald had been confronted with the reality that the police continued to investigate the involvement and/or knowledge of both brothers in the Jones' homicide.

It is true that there existed uncertainty on the state of the evidence before the authorizing judge about whether Jeremiah McDonald might be lured away from one of his residences to a pre-determined location as part of the aftermath of the proposed crime boss undercover scenario. Importantly, however, the investigative plan provided for this contingency. Specifically, Cst. Kozlowski deposed at paragraph 209 (

b) of the affidavit that: If, on the day of the "crime boss" scenario, undercover operators are unable to draw Jeremiah McDonald away from one of his residences to a predetermined location … It will be necessary for undercover operators to attend Jeremiah McDonald's residence with Thomas McDonald to confront Jeremiah McDonald.

The undercover operators would then depart and provide Thomas and Jeremiah McDonald the opportunity to discuss the homicide in private. • Given the extent to which Thomas McDonald had become ensnared by the undercover operation, his relationship with the primary, and the ability of the police to manipulate his movements, there was evidence before the authorizing judge upon which she could conclude that the police would have little difficulty in delivering Thomas McDonald to Jeremiah's doorstep after confronting him with the news that the police continued to investigate the involvement of both of them in the homicide. [ 107 ] Based on all of the information before the authorizing judge, and viewing it collectively, I am satisfied that it was open to her to conclude, despite the passage of time, that there were reasonable and probable grounds to believe Thomas and Jeremiah McDonald would speak privately about the events of September 26, 1981 and that the authorization sought would provide evidence respecting the homicide of Earl Jones. (ii) Investigative Necessity [ 108 ] Mr.

McDonald argues there was no basis upon which the authorizing judge could be satisfied, on the information before her, that the criterion of investigative necessity had been met. [ 109 ] In support of his position, Mr. McDonald makes two arguments. [ 110 ] First, he submits that the Unsolved Homicide Unit was committed, from the outset, to an undercover operation that would be employed in conjunction with a

Part VI authorization. He submits there was no evidence before the authorizing judge that anyone from the investigative team turned their mind to alternative investigative steps that were reasonable in the circumstances. Specifically, he argues that a further suspect interview was a viable alternative investigative strategy. [ 111 ] Second, Mr. McDonald argues that the one-party consent authorization would have been sufficient to meet the objectives of the undercover operation.

He submits that while the third-party authorization would no doubt have assisted the police in meeting their investigative objectives, there were other ways for the police to corroborate any statements made by Mr. McDonald to undercover operators. While acknowledging the absence of hold-back evidence, Mr.

McDonald submits that it was open to the police to compare any statements he made to undercover operators to the known circumstances of the case as reflected in other witness accounts, including Marilyn Jones' account concerning the route she took from the hotel, the location of the shooting, and the number of shots fired. [ 112 ] I will deal with Mr. McDonald's submissions respecting investigative necessity together. [ 113 ] It is necessary to evaluate Mr.

McDonald's arguments through a practical lens and in the context of the realities the police faced when the investigation was resumed in 2009. [ 114 ] The offence was alleged to have been committed 28 years earlier. It was open to the authorizing judge to conclude on the information before her that there were reasonable grounds to believe that Thomas McDonald committed the homicide. It was open to the authorizing judge to conclude on the information before her that there were reasonable grounds to believe that Thomas McDonald fled the jurisdiction immediately after the killing.

It was open to the authorizing judge to conclude on the information before her that there were reasonable grounds to believe that Thomas McDonald shared information about the offence and his involvement in it with his brother, Jeremiah, the night of the shooting.

It was also open to the authorizing judge to conclude on the information before her that there were reasonable grounds to believe that Jeremiah McDonald aided his brother in escaping detection and that he did so by a variety of acts including: driving Thomas McDonald to the airport the afternoon of the shooting; washing the truck Thomas McDonald was driving at the time of the shooting on the afternoon of the day of the offence; and supplying police investigators with inconsistent, misleading and/or untruthful information to protect his brother. While it is true Mr.

McDonald participated in a police interview conducted in Redding, California in 1983, Cst. Kozlowski deposed (at paragraph 216) that while "Thomas McDonald provided a timeline of his activities before and after [the offence] occurred, including being involved in an altercation at the Windsor Hotel Cabaret … he provided little detail of his activities around the time the offence occurred [and] denied any involvement in the [offence]." There was no hold-back evidence in this case. Mr.

McDonald asserts in his written submission that he was fed important information about the homicide by investigating officers during the 1983 interview including, "a description of the seized ammunition, the timing of the shooting … the police theory about [his] route, a description of the suspect vehicle … the position of the deceased in his vehicle, and the timing of the deceased's departure from the hotel." The practical realities of this investigation included the fact that securing evidence confirming the veracity of any inculpatory admission Thomas McDonald might make to the undercover officers was a vital component

of the objectives underlying the Operational Plan. [ 115 ] Cst.

Kozlowski reviewed other investigative steps taken to date, including: extensive witness interviews; suspect interviews (Thomas McDonald was interviewed once, Jeremiah McDonald was interviewed six times); consent searches, a previous 60-day authorization to intercept private communications obtained in 1981 shortly after the homicide and Thomas McDonald's departure from British Columbia; a number recorder warrant obtained in 2010; extensive forensic investigation; physical surveillance; and information obtained from informants. [ 116 ] Against this background, Cst.

Kozlowski deposed at paragraph 218: I do not believe any further attempts to

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