R. v. Christensen Date:, 2011 BCPC 397

Citation: R. v. Christensen Date: 20110908 2011 BCPC 0397 File No: 178334-3C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANTHONY VAGN CHRISTENSEN RULING ON APPLICATION OF THE HONOURABLE JUDGE K. W. BALL Counsel for the Crown: C. Fedder Counsel for the Defendant: C. Corriveau Place of Hearing: Surrey, B.C.

Dates of Hearing: Aug. 15, 16, 17, 23, 24, 25; Sept. 6, 2011 Date of Judgment: September 8, 2011 [ 1 ] THE COURT : These are oral reasons on an application for disclosure made within the confines of an application for a voir dire and for leave to cross-examine the affiant in this wiretap case. [ 2 ] The purpose of the voir dire is to determine if the rights of the accused, Anthony Vagn Christensen, under s. 8 of the Charter of Rights and Freedoms, have been breached in the course of an investigation conducted pursuant to authorizations P44 and P48 made under s. 186(1) (

a) of the Criminal Code . [ 3 ] The authorizations were obtained on July 25th and August 7th, 2009, respectively, by order of the former Associate Chief Justice, the Honourable Mr.

Justice Dohm, which authorization permitted interception of private communications of named persons concerning alleged offences, which included weapons trafficking, conspiracy to commit murder and the attempted murder of two men named Gounder and Singh, as well as a conspiracy to kill the late Steven Baker and two unidentified women. [ 4 ] This latter conspiracy case involves three accused name Doiron, Belcourt and Laidlaw, who are currently being tried before the Honourable Madam Justice Dillon in the Supreme Court of British Columbia. [ 5 ] Another case involving the same wiretap authorizations is presently being tried before Her Honour Judge Walker in the Provincial Court in Vancouver. [ 6 ] In the trial before this court, Mr.

Christensen is charged with a number of offences relating to the possession of prohibited firearms without permits or registration certificates. These offences are unrelated to the alleged conspiracy to kill Mr. Baker or the two unidentified women. [ 7 ] Counsel for Mr. Christensen advanced a number of areas of disclosure, which have in part been answered by the Crown or withdrawn by counsel for the accused. In this application, the only subject area in which Mr.

Christensen seeks disclosure involves the PIRS and PRIME entries in relation to Steven Baker. [ 8 ] PIRS and PRIME are both computer systems in which police departments store information concerning individuals in contact

with the police. PIRS is an acronym which means "Police Information Retrieval System"; PRIME is an acronym for "Police Records Information Management Environment." [ 9 ] In the affidavit in support of authorization P44, at paragraph 33, the affiant stated that Baker is a past associate of Bobby Gill and that Baker's whereabouts were unknown. The affiant stated that nothing more was known about the intended female victims.

The information about Bobby Gill included a reference to the fact that he was a member of the "Red Scorpions" criminal gang. [ 10 ] At paragraph 173 of P44, the affiant related information from Informant "A" that Bobby Gill and Steven Baker, who was also known as "Bammer," were angry with each other, and Bobby Gill was trying to track down "Bammer." [ 11 ] Baker was described in the information from the informant as being about six-foot-ten inches tall, with a shaved head and tattoos up to his neck. He lived in Surrey, south of Highway 10.

The query made by the affiant on PRIME revealed that in June of 2009, he was described as a Caucasian male, heavy-built, six-foot-eight inches tall, 276 pounds, hazel eyes and a shaved head. An alias used by Steven Baker was "Bam-Bam." His address was listed on 53rd Avenue in Surrey, located in Panorama Ridge south of Highway 10. The affiant also reported that Informant "C" stated that the "hit" on Bam-Bam was because "he did some shady shit" (paragraph 183(

d) of the affidavit in support of P44.). [ 12 ] Counsel for the accused filed an affidavit of James O'Rourke, which demonstrated that the description of Steven Baker in the application in support of the authorization was substantially correct. [ 13 ] In paragraph 185 of the affidavit of Cst. Debrecki, filed in support of P44, the following appears: "Steven Baker is an associate of Bobby Gill's.

His whereabouts are unknown." [ 14 ] Nowhere in the evidence presented so far in this case is there any suggestion that the location of Steven Baker was known to the police, or to Bobby Gill or any other alleged conspirator, at any material time. [ 15 ] In paragraph 22 of the affidavit of Cst. Debrecki, again filed in support of P48, the following appears: On August 5th, 2009, Doiron was intercepted asking an unknown female whether she knew where Bam-Bam was. The unknown female said she did not.

The affiant said, "I believe "Bam-Bam" refers to Baker." [ 16 ] In paragraph 35, Bobbie Gill is reported to have said, "Bam-Bam really fucked me over." [ 17 ] An affidavit sworn by the accused was filed in support of this application. The text of the affidavit consists of references to the attached exhibits, which consist of correspondence between Crown counsel and defence counsel.

There is no explanation by the accused in his affidavit, for instance, of any possible assistance or use to the defence of the PIRS or PRIME data presently sought. [ 18 ] That correspondence consists of, among other things, the following: On June 6th, 2011, in response to a request made that day by counsel for the accused, Ms. Fedder, for the Crown, stated that PIRS and PRIME entries for Mr. Baker would not be disclosed.

A month later, on July 6th, 2011, counsel for the accused again wrote to Crown counsel, asking for PIRS and PRIME entries of the alleged target of the conspiracy, Steven Baker, and any information that the police knew in respect to his whereabouts at the relevant time and whether the police became aware he was deceased and when. Counsel suggested that PIRS and PRIME entries of the alleged target of the conspiracy were relevant because of:

a) the failure of the police to speak to Baker and ascertain anything about his status or knowledge (which is clearly related to investigative necessity) and

b) the failure of the police to recognize the death of the purported target of the conspiracy amounts to a substantial change in circumstances, underlying the factual matrix of the authorization. [ 19 ] The only evidence before the court on this application is that the police did not know the whereabouts of Baker, nor did the persons allegedly conspiring to kill him, and in that light, there was no failure to speak to him. [ 20 ] Crown counsel responded on July the 8th, 2011, that PIRS and PRIME entries related to Steven Baker were third-party documents with inherent privacy issues attached and it had not been demonstrated that the entries were relevant to "investigative necessity." Crown counsel invited counsel for the accused to apply to the court for a disclosure order on dates in July of 2011.

No application was made in July of 2011 by defence counsel. [ 21 ] Defence counsel then sent a letter to Crown counsel, requesting that the Crown admit as a fact that "police knew at all relevant times, including any time when there was an authorization in place with respect to the alleged conspiracy to commit his murder, the location of Steven Baker, including his residential address," and that the police had no contact with Baker, did not interview Baker about his knowledge, if any, about the alleged female targets of the conspiracy to murder.

Crown counsel did not agree to make the suggested admissions. [ 22 ] Again, there is no evidence of the identities of the female targets of the conspiracy, and nothing to suggest that Steven Baker had any idea of the identities of the females. [ 23 ] Counsel for the accused relies upon the decision in R. v. Grant

(2003) M. J. 382 . This case involves issues relating to disclosure by the Crown pursuant to R. v. Stinchcombe . Grant is a case which is completely distinguishable on its facts. In Stinchcombe , however, Sopinka, J. stated: The right of an accused to make full answer and defence is a feature of our justice system designed to prevent miscarriages of justice and avoid wrongful conviction of innocent persons.

In order to ensure fair trials and fulfill the rights of the accused under s. 7 of the Charter of Rights and Freedoms, the Crown is obliged to make complete disclosure of relevant information. [ 24 ] Although the facts set out in the Grant case are clearly distinguishable from the case at bar, Mr. Justice Beard sets forth at

paragraph 8, through to and including paragraph 22 of the judgment, principles which apply to disclosure applications generally. I havereviewed and intend to follow the principles set out in those paragraphs. [25] In the case before this court, the accused seeks information contained in police computer systems about contact between theintended victim of an alleged conspiracy to commit murder, Steven Baker, and the police or justice system in general.

I am unable toidentify any basis upon which such information is material to any issue in the trial of the charges presently before this court. [26] In Grant, cited above, at paragraphs 12 and 13, the court discussed the practical need in certain circumstances for the defence toestablish some basis for the court to conclude that the information sought is potentially relevant, citing Madam Justice Sulyma in R. v.Chan (2002) 2002 ABQB 287 , A. J. 363 at paragraph 37. [27] In Grant, at paragraph 13, Mr.

Justice Beard wrote: Where there is no apparent connection between the requested disclosure and the matter at issue, the Crown will be able to meet the onusof proving irrelevance based on the apparent lack of connection, and the defence will then have to indicate the nature of the connectionso that the Crown will be able to review documents or information in light of that connection, and respond to the issue of relevance. [28] In the case before me, there is no apparent connection between the disclosure of PIRS and PRIME data records related to StevenBaker and the matters at issue in this case.

Over a period of several days prior to this disclosure application, counsel for the accusedargued that because of a lack of investigative necessity, leave should be granted for cross-examination of the affiant in support of theauthorization to intercept private communications. In other words, counsel says the police should have interviewed Steven Baker to havehim provide some unspecified information in relation to the alleged plot against his life.

The affiant stated the police did not know thelocation of Steven Baker, and that statement was made before the authorizing judge. [29] Given the imminent nature of the action in the alleged conspiracy and the imminent death by murder of three persons, there is nobasis to suggest, and no air of reality to the suggestion, that the authorizing judge was not aware of the lack of knowledge by the policeof the whereabouts of Steven Baker or that such a lack would be material to the granting of the authorization. [30] The granting of these records is, in my view, simply a fishing expedition.

Fishing of that sort is impermissible and R. v. Lising(2004), Carswell B.C. 1476, and R. v. Garofoli are both cases that make it very clear that that sort of activity is to be avoided.

On thebasis of the submissions which I have heard, and my reading of the case law, for which I thank counsel, I am of the view and havedecided that the application for additional disclosure by the Crown is dismissed. [31] I will now turn to the application for cross-examination and the voir dire. [32] The applicant, Anthony Vagn Christensen, has applied for various orders, including a voir dire and for leave to cross-examinethe affiant in two authorizations, P44 and P48, those authorizations being to intercept private communications. The co-accused thenparticipating in the case took no

part in this application. [33] In 2009, Vancouver Police began an investigation into a conspiracy to commit murder, two attempted murders, those of Mr.Singh and Mr. Gounder, as well as related firearms and weapons trafficking offenders. Information from at least three informants wasgiven to police, which included information about an imminent targeted hit on three individuals by a person designed as "Joey." Ultimately, information from one informant satisfied the police that Joey was the accused Doiron. [34] A further authorization was then sought in the investigation.

That became authorization P44, obtained from the Associate ChiefJustice Dohm, as he then was, on the 25th of July 2009, with authorized interception of, among others, Doiron's private communications,as he had become a known person, as that term is used in these cases. [35] During the currency of P44, private communications of the accused Christensen were intercepted by use of the "basket clause,"as he was not a known person at the time P44 was issued. [36] Two of the three accused in proceedings before the Honourable Madam Justice Dillon in the Supreme Court challenged P44 inpre-trial applications in a case known as R. v.

Belcourt, Doiron and Laidlaw. Four rulings have now been made by the Supreme Court inthat case. Those rulings, in

summary, are, and I will say more about them later, information from Informant "C" provided reasonableand probable grounds for finding the authorization valid; 2) the applicants were granted leave to cross-examine the affiant on a verynarrow issue; 3) following cross-examination of the affiant, the authorization was found to still be valid; and 4) the applicants were notgranted leave to cross-examine the affiant on the basis of investigative necessity. [37] In separate proceedings in this court, Messrs.

Doiron, Laidlaw and Gill were charged with other offences based on informationstemming from P44, and these matters are being heard presently before the Honourable Judge Walker in Vancouver.

Again the accusedchallenged P44, and although they conceded reasonable and probable grounds existed due to the findings on facial validity in R. v.Belcourt, number 2, Her Honour Judge Walker sustained the validity of P44. [38] In order to properly understand this matter, it is important to review the findings made by the Honourable Madam Justice Dillon. [39] At paragraph 36 on page 13 of the Reasons for Judgment on Ruling Number 2 in the wiretap voir dire, under the heading"Conclusion," Her Ladyship says: From my review of the facts, it is clear that the affidavit in support of the authorization provided a sufficient basis upon which theauthorizing judge could be satisfied that the pre-conditions for granting an authorization existed.

There was some evidence that couldreasonably be believed, on the basis of which the authorization could have issued. The authorizing judge could have found there werereasonable and probable grounds to believe that an offence had been or was being committed, and that the authorization sought wouldafford evidence of that offence.

[ 40 ] I revert to the opening clause of that conclusion, which contains the words "from my review of the facts." The facts which were reviewed and are applicable here begin at paragraph 18 of that set of Reasons for Judgment, and in paragraph 18, the significant facts are that Bobby Gill was angry with Steven Baker and that Gill was trying to track down Baker.

At paragraph 31: The "hit" was to be on Baker, a known associate of Gill, whom Gill had recently told another informant that he was angry with and trying to track down, leading to the reasonable inference that Gill meant to kill Baker, much as he had boasted that he had shot Singh, and the MAC firearm was to be used which had been used previously in attempts to murder Singh and Gounder.

Later in that paragraph: With these facts and the totality of the circumstances, it was open to the authorizing judge to find that the information from Informant "C" was sufficiently reliable to use. [ 41 ] Based on the facts reviewed, Madam Justice Dillon had before her facts which included that the whereabouts of Steven Baker were unknown, at least to Bobby Gill and his alleged co-conspirators, as well as to the police.

In my view, it is not correct to say that that issue was not a live issue and before the court in relation to its finding of facial validity on P44. [ 42 ] In Ruling Number 3 in the above proceeding, Madam Justice Dillon, after considering at length the case authorities relating to the limited and narrow circumstances in which cross-examination of an affiant is permitted, granted leave to cross-examine the affiant as to his understanding and knowledge of the information coming from Informant "C," including past and potential dealings with the police. [ 43 ] In Ruling Number 4 in the same proceeding, Madam Justice Dillon concluded that the cross-examination had not changed her determination that there was sufficient reliable information upon which the authorizing judge could have issued the authorization.

I was informed by counsel that a further ruling by Her Ladyship has also sustained the authorization in P48. [ 44 ] The sole basis advanced by counsel for the accused for relief by way of voir dire and leave to cross-examine the affiant is "investigative necessity," and that is submitted to be based on the bald statement, or series of bald statements, that the police could not locate or did not know the whereabouts of Steven Baker at the material time.

It was not suggested nor argued that the statements made by the police were false or intending to mislead, but rather that the failure to provide the factual details of any and all attempts to locate Steven Baker and interview him should be a valid basis for cross-examination of the affiant. Counsel submitted that this was a unique feature not previously litigated in the Supreme Court. As I have noted above, with that submission, I disagree. [ 45 ] Clearly, the absence of knowledge of the whereabouts of Mr. Baker was before the Supreme Court.

This court should not then embark upon a reconsideration of the same issues decided in a careful and reasoned fashion by another, in this case, superior court, taking into account the need to have regard for the interests of justice as noted by the Honourable Mr. Justice Smart in R. v. Sipes

(2009) BCSC, 564, p. 10 and 15. [ 46 ] The fact that the whereabouts of any of the proposed victims of the alleged conspiracy, including Mr.

Baker, in the circumstances is not material to granting of the authorization to intercept. [ 47 ] Taking into account the submissions of counsel, the applicant has not shown a reasonable likelihood that cross-examination on the basis of investigative necessity will assist the court to determine a material issue. [ 48 ] The right to cross-examine an affiant is, as has been frequently said, of fundamental significance in criminal cases, but the right is neither unlimited nor absolute. As noted in R. v.

Vukelich (1996), 37 CCC (2d) 237, the voir dire is held to determine the admissibility of evidence in relation to the trial. Based on the charges before this court, the location of Mr.

Baker is not material and "will not assist in the proper trial of the real issues," a quote from paragraph 36 of Vukelich. [ 49 ] Further, regardless of the presence or lack of information about the location of the proposed victims of the alleged security, I am of the view that there continues to be a basis in fact, a significant body of evidence unrelated to the present application, to support the issue of the authorizations by the authorizing judge. [ 50 ] As noted in R. v.

Lising (2004), Carswell BC 1476 , is it likely that the effect of the proposed cross-examination would be to undermine the basis for the authorization? [ 51 ] At paragraphs 36 and 37 of the Lising decision, the Court of Appeal states that a submission that cross-examination might have shown an informant was not credible is insufficient. We have not even reached that level in this case; that is, we have not reached the level where it can be said that Mr.

Baker might have known anything that would assist on a material issue in this case. [ 52 ] I am satisfied in this case that the application for disclosure of PIRS and PRIME entries relating to Steven Baker is an impermissible fishing expedition, as no reasonable possibility has been demonstrated that the lack of disclosure sought will impair the right of this accused to make full answer and defence. [ 53 ] Here I am going to borrow and read into the record, as part of my judgment, part of the submissions made by Crown counsel on this point.

I am starting from her booklet entitled "Crown's Written Submissions, Application for Leave to Cross-Examine the Wiretap Affiant, Det. Cst. Debrecki" on P48, 2009, starting at paragraph 64. Although the applicant need not demonstrate that cross-examination will be inevitably successful, he is required to demonstrate there is a reasonable likelihood that cross-examination will elicit evidence that will be of some assistance to the court in determining any material issue. ( R. v. Lising , p. 26 to 27). [ 54 ] Defence counsel coupled P44 and P48 together in her submissions.

It is useful to note that in P48, the activity of Mr. Christensen has to do with attempts to locate a female, not Mr. Baker, and in particular, at paragraph 9(g), paragraph 46, paragraph 49, paragraph 50

and paragraph 52, all deal with intercepted communications, and paragraph 53(

b) deals with a surveillance report. [ 55 ] The foregoing telephone conversations were captured by the basket clause, as contained in P44, at a time when Steven Baker was still alive. I am advised that Mr. Baker died on August the 8th, 2009, in an automobile accident. [ 56 ] I do note that there was a mistake or conflict between paragraphs 53(

h) and paragraph 54 respecting what Mr. Doiron said about Brandon Monette and to whom. A proper treatment of that conflict would be to excise the conflicting words and see if there remained a factual basis to sustain the warrant. In this case, the error is apparent and would not, once excised, provide a basis to attack the statutory basis for the authorization. [ 57 ] Reference to Mr. Baker appears rarely in P48. Paragraph 55 of P48, one of the few actual references to Steven Baker, is telling and speaks about the lack of knowledge of whereabouts of Steven Baker. Mr.

Doiron, in an intercepted call, speaks to an unknown female who was attempting, apparently on Doiron's behalf, to locate Baker by talking to others, and she is doing so without any level of success. [ 58 ] Having reviewed the submissions of counsel, obviously prepared with great care and for which I thank them, I find that the threshold, which is set out in the Vukelich case and subsequent decisions of courts in this Province, has not been met in this case. The accused has not established a reasonable likelihood that submissions about the location of Mr.

Baker will disclose a basis upon which the court make an order excluding evidence. [ 59 ] I am satisfied that the authorization here is valid and the application for a voir dire and cross-examination is dismissed. (RULING CONCLUDED)