R. v. Tingley, 2015 NBCA 51

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 177-11-CA HER MAJESTY THE QUEEN APPELLANT SA MAJESTÉ LA REINE APPELANTE - and - - et - RODNEY TINGLEY, ROGER TINGLEY and CHRISTOPHER TINGLEY RESPONDENTS RODNEY TINGLEY, ROGER TINGLEY et CHRISTOPHER TINGLEY INTIMÉS R. v. Tingley, 2015 NBCA 51 R. c.

Tingley, 2015 NBCA 51 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Quigg CORAM : l’honorable juge Richard l’honorable juge Bell l’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: December 15, 2011 Appel d’une décision de la Cour du Banc de la Reine : le 15 décembre 2011 History of case: Decision under appeal: Unreported Preliminary or incidental proceedings: N.A. Historique de la cause : Décision frappée d’appel : inédite Procédures préliminaires ou accessoires : s.o.

Appeal heard: October 7, 8 and 9, 2014 Appel entendu : Les 7, 8 et 9 octobre 2014

Judgment rendered: August 5, 2015 Official bilingual version: October 2, 2015 Reasons for judgment by: The Honourable Justice Richard Concurred in by: The Honourable Justice Bell The Honourable Justice Quigg Jugement rendu : le 5 août 2015 Version officielle bilingue : le 2 octobre 2015 Motifs de jugement : l’honorable juge Richard Souscrivent aux motifs : l’honorable juge Bell l’honorable juge Quigg Counsel at hearing: For the appellant: Kathryn Gregory For the respondent Rodney Tingley: Alison Ménard For the respondent Roger Tingley: Graham Sleeth, Q.C.

For the respondent Christopher Tingley: Brian Munro THE COURT The appeal is dismissed. Subject to any further order of an appropriate court, the publication ban remains in place for 60 days. Avocats à l’audience : Pour l’appelante : Kathryn Gregory Pour l’intimé Rodney Tingley : Alison Ménard Pour l’intimé Roger Tingley : Graham Sleeth, c.r. Pour l’intimé Christopher Tingley : Brian Munro LA COUR L’appel est rejeté.

Sous réserve de toute autre ordonnance d’un tribunal compétent, l’interdiction de publication demeurera en vigueur pour une période de 60 jours. TABLE OF CONTENTS

Para. I. Introduction 1 II. Factual Background A. The path leading to the Court of Queen’s Bench B. Proceedings in the Court of Queen’s Bench

(1) Arraignment and securing counsel

(2) Pre-trial matters (

a) First defence motion for a stay of proceedings: alleged massive manifest deliberate non-disclosure (

b) Defence constitutional challenge (

c) Re-election and rescheduling of trial (

d) Defence motion for recusal (

e) Motion for a stay of proceedings, exclusion of evidence, mistrial or recusal: the roadmap motion (

f) Prosecution motion to vary order (

g) Attorney General directs the entry of a stay of proceedings in relation to three accused (

h) Determination of privilege attaching to blocked calls (

i) Vetting motions (

j) Second defence motion for stay, mistrial or recusal (

k) Motion for stay: disclosure of Pond interview (

l) Motion for histories of intercepts and motion to dismiss (

m) Garofoli/Wilson motion – leave to cross-examine (

n) First motion to disqualify prosecutor Bertrand and preliminary motion to dismiss (

o) Second disclosure motion (

p) Second motion to disqualify prosecutor Bertrand – preliminary motion to dismiss (

q) Third Defence motion for a stay of proceedings (

r) Second motion to disqualify prosecutor Bertrand (

s) Defence Omnibus motion (

t) Prosecution motion for recusal

(3) Acquittals 7 8 11 12 14 17 24 25 31 32 36 37 38 40 47 51 52 53 59 61 64 67 68 81 83 98 III. Issues on appeal 100

IV. Analysis A. Preliminary matters

(1) Jurisdiction of the appellate court

(2) Limit of appellate review

(3) Interlocutory appeals B. Grounds of appeal C. Additional issue 103 103 104 107 109 143 145 V. Disposition 146 The following is the judgment delivered by RICHARD J.A. I. Introduction [ 1 ] On December 15, 2011, a large and costly prosecution came to a screeching halt when the prosecution suddenly opted to call no evidence against four of the eight remaining accused originally charged in an Information containing 57 counts alleging various offences. Of the other four individuals who had been charged in the same Information, one pled guilty, while the prosecution stayed the charges against the other three.

In the absence of any evidence, the trial judge was obligated to acquit the four remaining accused. The Attorney General then immediately filed a Notice of Appeal from the acquittals, asking for the verdicts to be set aside and a new trial ordered.

Before the appeal was heard, one of the four respondents passed away. [ 2 ] In the submission written on behalf of the Attorney General, this rhetorical question is posed: “The overarching question in this [appeal] is why did this large and costly prosecution come to a premature end denying the public and the accused a determination of guilt or innocence on the serious offences charged?”. In my view, the answer is not a simple one.

Criminal trials have often become long and complex; not always because the search for the truth constitutes a complicated inquiry, but rather because some trial lawyers engage in a series of lengthy and complex motions focused on the conduct of the police and/or the prosecution hoping to find that a right of the accused has been infringed. Such a gamble can pay lucrative dividends in the sense that, if an unexpected infringement is uncovered, it may lead to relief that would avoid having a determination of the charge on the merits. However, more often than not, these types of expeditions do not bear fruit.

Instead, they prove to be exorbitant endeavours that consume enormous amounts of time and resources. Often, financial considerations serve to deter such questionable defence conduct. When funding is not an issue, however, this deterrence disappears. [ 3 ] The fact that criminal trials often spin out of control has not gone unnoticed by legal professionals, and has at times been the subject of learned commentary.

In a 2006 report to the Chief Justice’s Advisory Committee on Criminal Trials in the Superior Court of Justice titled New Approaches to Criminal Trials , (online: http://www.ontariocourts.ca/scj/news/publications/ctr/), former Chief Justice Lamer is reported to have observed as early as 1995 that “[s]ome trials are so long that one wonders whether the process will not collapse under its own weight”.

Like many before it, this matter is one that has indeed collapsed under its own weight. [ 4 ] The extent of the pre-trial matters in the present case is evidenced by the more than 170 transcripts filed with this Court, 20 of which relate to in camera proceedings. The Court received twenty-two boxes of materials from the Court of Queen’s Bench, most of which relate to a series of lengthy and complex motions focused on the conduct of the police and/or the prosecution.

The last of these motions consisted of a prosecution motion for the judge to recuse himself on the grounds he had embarked on an inquiry that compromised the independence of both the Court and the Office of the Attorney General, failed to protect privilege, and failed to properly manage the proceedings to prevent proliferation and prolixity. [ 5 ] In my view, courts have an obligation to devise tests and thresholds to prevent abusive processes. The Supreme Court of Canada acknowledges the appropriateness of threshold determinations: R. v. Nixon , 2011 SCC 34 , [2011] 2 S.C.R. 566 . Thresholds are not new.

They are reflected in the “air of reality” tests courts often apply. In R. v. Pires; R v. Lising , 2005 SCC 66 , [2005] 3 S.C.R. 343 , the Court recognized that mandating a preliminary determination on the utility of a Charter -based inquiry is an appropriate procedural safeguard. [ 6 ] This is one case where a strict threshold determination might have avoided weeks, if not

months, of pre-trial hearings. Nevertheless, I reach the conclusion that this case is not one that gives rise to the Attorney General’s abilityto abandon the prosecution by calling no evidence in order to immediately gain a right of appeal against these rulings – a right that wouldbe denied to the defence by application of the general rule against interlocutory appeals in criminal matters. In my view, it is on thisnarrow basis that the appeal must fail. II.

Factual background [7] The extremely complex factual matrix that led to the prosecution folding, and thereby to theacquittals, can only be understood by first mapping the road from the initial charges to the acquittals. A. The path leading to the Court of Queen’s Bench [8] In 2007, the Royal Canadian Mounted Police (RCMP) began a 15-month investigation in theColpitts Settlement area of New Brunswick. The investigation included a 12-month authorization for the interception of privatecommunications.

The Attorney General’s involvement in the matter began in November 2007, with the assignment of Michel Bertrand asboth Crown counsel and wiretap agent during the RCMP investigation. [9] The investigation resulted in charges against eight members of the Tingley family. These werecontained in a 57-count Information.

The Information alleged numerous offences under either the Criminal Code or the Controlled Drugsand Substances Act, S.C. 1996, c. 19, including possession for the purposes of trafficking, trafficking, conspiracy to traffic in controlledsubstances, criminal organization offences, firearm offences and failing to comply with conditions in either an undertaking given to ajudge or a recognizance. The controlled substances involved were numerous: Oxycodone, Hydromorphone, Cannabis (Marihuana),Methadone, Cocaine, Cannabis Resin and Methylenedioxyamphetamine. Not all accused faced all charges, however.

Some countsrelated to single individuals, while other counts jointly charged two or more of the accused. [10] In December 2008, the Attorney General designated Kathryn Gregory to act together withMichel Bertrand in the prosecution phase of the case. Both counsel conducted the Provincial Court proceedings, which included: theinitial appearance; bail hearings that resulted in five of the accused remanded in custody; the election to be tried in the Court of Queen’sBench; and, on January 9, 2009, the waiver of a preliminary inquiry.

Nicole Poirier was appointed as a third prosecuting counsel inJanuary 2009, and remained until late 2010. Later, Gabriel Bourgeois would join the prosecution team. B. Proceedings in the Court of Queen’s Bench [11] Ms. Gregory and Ms. Poirier conducted much, but not all, of the in-court proceedings in theCourt of Queen’s Bench, while Mr. Bertrand generally aided with trial preparation. The salient segments of the proceedings are set outbelow. For the sake of brevity, I have omitted some of the rather insignificant procedural motions or appearances, and some of themotions that were filed but not heard.

There were many. I have generally refrained from commenting on the actions of the lawyers in thecourse of the countless pre-trial matters. The transcripts and the sheer volume of motions generally reveal a palpable and flagrantabsence of defence cooperation with the prosecution. This type of conduct is antithetical to the civility that is expected of, and shouldprevail among, such professionals. The hyperbole directed at Crown and police action could certainly be argued to be mostunprofessional.

However, since the lawyers involved were not called upon at the appeal hearing to justify any specific comment, I willnot pass judgement on any specific item. This said, there are a few instances below where I was unable to resist the temptation to pointout the obvious.

(1) Arraignment and securing counsel [12] The Indictment was filed in the Court of Queen’s Bench on January 23, 2009, and the accusedwere arraigned on March 2, 2009. At that time, each of the eight accused declined to enter a plea because he or she had not yet securedthe services of counsel, so all were deemed to have pled not guilty. Shortly after the arraignment, all accused had either secured counsel,or had identified counsel who might be retained, all on legal aid certificates. A trial date was scheduled for June 1, 2009.

However, thatdate was derailed after all legal aid certificates were revoked, effective April 12, 2009, pursuant to a change in policy under the Legal AidAct, R.S.N.B. 1973, c. L-2. The certificates were effectively cancelled because the defence costs were estimated to be too high. Relyingon R. v. Rowbotham, (ON CA), [1988] O.J. No. 271 (C.A.) (QL), each of the accused applied for an order to stay theproceedings until they were provided with legal representation funded by the state. On April 24, 2009, the trial judge ruled the criteria

for making such an order had been met and adjourned the hearing of the applications to give the Attorney General time to make funding arrangements with counsel. This was done, and by May 21, 2009, all accused were represented by counsel. [ 13 ] Not surprisingly, the June 2009 trial date was abandoned.

(2) Pre-trial matters [ 14 ] On May 26, 2009, the judge adjourned the trial to January 18, 2010, and issued directives for pre-trial matters. All accused advised of their intention to re-elect to be tried by a court composed of a judge and jury, and various pre- trial matters were heard in the months leading to the new trial dates. From this point on, the proceedings generally consisted of an endless series of motions that, for almost two and a half years, delayed all attempts at holding a trial. The motion hearings were ongoing when, on December 15, 2011, the matter came to an abrupt end.

At that point, many of the motions filed had yet to be heard. Significant among these are what are described below as the Garofoli/Wilson motion and the Omnibus motion. [ 15 ] For the most part, if not in all instances, the accused were united in each and every defence motion. Typically, one Notice of Motion was filed on behalf of all accused.

Nevertheless, in too many instances, all lawyers insisted on presenting their own argument despite the repetitiveness of it all. [ 16 ] In summarizing the pre-trial proceedings, I borrow liberally from the transcripts and from the numerous unreported decisions of the trial judge. In compliance with a publication ban, these decisions are all unreported. (

a) First defence motion for a stay of proceedings: alleged “massive manifest deliberate non-disclosure” [ 17 ] The first of the significant motions was for relief under the Canadian Charter of Rights and Freedoms . In this motion, the accused sought a stay of proceedings on grounds of alleged “massive manifest deliberate non-disclosure of evidence”, which the accused submitted violated their right to make full answer and defence under s. 11( d ), and their right to be tried within a reasonable time under s. 11(

b) of the Charter . In the alternative, the accused sought an order for the production of all undisclosed materials, an order for judicial release of those accused who had been remanded into custody pending trial, and an itemized inventory of all information in the possession of the prosecution, the RCMP, or any third party. [ 18 ] The hearing of the motion commenced November 9, 2009. It involved many hearing days, and culminated in a decision delivered on December 10, 2009.

In that decision, the trial judge observed: “[t]he respective positions of counsel for the applicants and the Crown, as well as their assessment of the facts relating to the question of whether the RCMP and the Crown fulfilled their duties to disclose all relevant material relating to the investigation to the accused, could hardly be further apart”. Crown counsel maintained they had done their best to provide “flawless” disclosure, and that any deficiency was unintentional, and something that was to be expected for a case of this magnitude and complexity.

Conversely, the accused argued deliberate and systematic non- disclosure of requested documentation. [ 19 ] The trial judge explained that the evidence for and against the motion for a stay of proceedings revealed the RCMP intercepted 113,403 private communications over the course of the investigation, and conducted various other investigations and surveillance relating to the suspected criminal activity of the Tingley family members. At the first court appearance, the Crown provided the accused with a one-terabyte hard drive containing the electronic disclosure of the Crown’s first package of disclosure.

By March 19, 2009, a flash drive containing some 4,529 intercepts was also disclosed and, by early July 2009, four further disclosure updates were provided. On July 14, 2009, Crown counsel stated disclosure was complete. [ 20 ] The trial judge held the accused had neither “established on the balance of probabilities that the Crown or the RCMP were involved in a ‘massive manifest deliberate non-disclosure of evidence’ as alleged” nor had they “established a breach of their rights under the Charter ”.

The accused had argued the RCMP had intentionally misled them when they provided each accused with individualized disclosure packages that respectively disclosed the evidence deemed relevant to each accused, instead of one disclosure package containing the entirety of the police investigation. The judge found the provision of individualized packages “was not done for any improper or nefarious purpose”.

He observed no evidence established that the decision, to provide disclosure in this fashion, prejudiced any accused’s ability to make full answer and defence in any way, nor that it contributed to delaying the proceedings in any manner. Moreover, he concluded the disclosure packages contained a separate “all session list”, and that “[e]ven a cursory review of that list by the accused or their counsel would have revealed the total number of calls intercepted up to that point in time”. Had this

review been undertaken, the accused would have known that what they received was significantly less than the total of all intercepted communications. [ 21 ] In the end, on what appears to have been common ground among all parties, the trial judge ordered the disclosure to defence counsel of any and all synopses of the 113,403 intercepts not already disclosed, as well as the audio WAV files for those intercepts. He made this disclosure contingent on each counsel providing an undertaking, in a form complying with the directives in R. v. Guess , 2000 BCCA 547 , [2000] B.C.J.

No. 2023 (QL) , leave to appeal dismissed [2000] S.C.C.A. No. 628 (QL). Of course, the judge did not include the interceptions that were believed to consist of privileged communications. A similar order was made for the monitors’ briefing notes, some intercepted communications that had not been considered pertinent, and some “floating intercepts”.

With respect to the privileged communications, the trial judge stated the “Crown shall identify the particular intercepts and provide details of the factual basis upon which it bases any claim for privilege”. [ 22 ] As to the allegations the prosecution had repeatedly misrepresented that disclosure was complete, the judge found that Crown counsel were genuine and honest in their representations to the Court and rejected defence assertions that “they have had to push and push the Crown throughout these proceedings for disclosure”.

In fact, the judge found that defence counsel had themselves not been diligent in seeking full disclosure, adding that “once they did make specific requests the Crown was quick to respond”.

In rendering his decision, the judge went on to chastise defence counsel for some of the unjustified allegations made against Crown counsel, stating that he was “convinced that had calmer, less contentious, more co-operative and courteous attitudes prevailed, the necessity of proceeding with a near month long hearing of this nature could very well have been avoided completely or at the very least significantly shortened”. [ 23 ] Obviously, the trial was not able to proceed in January 2010 as scheduled. (

b) Defence constitutional challenge [ 24 ] Defence counsel sought to challenge the constitutional validity of some of the Criminal Code offence-creating provisions. They anticipated calling an expert witness in support of their position, but the individual in question was not available. The matter was therefore held in abeyance. (

c) Re-election and rescheduling of trial [ 25 ] Pre-trial matters continued unrelentingly into 2010. The accused had all advised of their intention to re-elect to be tried by a court composed of a judge and jury. At one point, however, one of the eight accused chose a different route, one that would lead to his change of plea. He was therefore removed from the proceedings, which would continue on an amended Indictment. On January 28, six of the remaining seven accused formally re-elected, with Roger Tingley requesting his re-election be delayed because of ill health.

The trial was rescheduled to begin on September 27, and a series of motions and pre-trial matters were also scheduled. On March 29, the commencement of trial was rescheduled, to September 28, because of a general election to be held in New Brunswick on the 27 th . [ 26 ] On March 29, 2010, the trial judge inquired of Roger Tingley whether he was prepared to re- elect. He informed the judge he believed further charges were forthcoming and he preferred not to re-elect at this time. The judge did not consider this a valid reason to delay the re-election. He therefore put Mr.

Tingley to his re-election on each count that related to him. For each count, Mr. Tingley indicated he would rather wait to re-elect, and, each time, the judge recorded that Mr. Tingley was not prepared to re-elect having been given an opportunity to do so. [ 27 ] On March 29, 2010, the judge expected to hear a prosecution motion to clarify the judge’s previous order regarding the communications the RCMP believed might be privileged. Recall in his December 10, 2009 decision the judge had directed the Crown to provide details of the factual basis upon which privilege attached.

The prosecution believed all counsel had reached an agreement that the intercepts believed to be privileged would be submitted to Chief Justice David Smith for a determination of whether the communications were indeed privileged. However, at the hearing, defence counsel refused to consent to this procedure, insisting Crown counsel do as directed. Their position on this issue betrays either a total lack of understanding of the nature of a privilege that could attach to such communications, or a total absence of cooperation with the prosecution on a rather straightforward matter.

[ 28 ] Defence counsel were well aware that the Authorization to intercept private communications contained the following provisions: 6.

It is further ordered that: A. no communications may be intercepted and no observations may be made by means of a television camera at the office or residence of a solicitor, or at any other place ordinarily used by solicitors for the purpose of consultations with clients; and B. when a monitor or police officer/investigator reasonably believes [that a] solicitor, or employee of a solicitor, is a party to a communication, the monitor or police officer/investigator must cease listening to, but may continue to record, the communication, and may spot-monitor the communication at reasonable intervals for the purpose of determining whether the solicitor, or employee of the solicitor, remains a party to the communication.

When communications have been intercepted while on automatic monitoring, the monitor or police/investigator who subsequently reviews the communication must cease listening to the communication as soon as he/she reasonably believes that a solicitor, or employee of a solicitor, is party to the communication, and may spot-monitor the communication at reasonable intervals for the purpose of determining whether the solicitor, or employee of the solicitor, remains a party to the communication.

Any communication with a solicitor, or employee of a solicitor, that is recorded pursuant to this Authorization shall be sealed and no person shall be permitted access thereto except as authorized by this Court. [ 29 ] In this instance, the prosecution sought only a mechanism to determine whether intercepts that had been blocked pursuant to these provisions were in fact protected by solicitor-client privilege. This is not a privilege asserted by the Crown, as the defence repeatedly and erroneously contended. It is one that belonged to the parties of the intercepted communications.

In fact, the Authorization provided for the very procedure the prosecution was invoking.

Section 6 continued: Provided [,] however [,] that in the event that a communication or communications have been recorded and to which access has been denied pursuant to this paragraph, and it is reasonably believed that a communication may not be subject to solicitor-client privilege, then the communication or communications may be submitted to this Court for an ex-parte determination of whether access will be allowed to any of the communications. [ 30 ] Defence counsel argued Crown counsel’s conduct in not providing the factual basis upon which privilege attached was “on the verge of contempt”, and called it “a disgrace” and “an affront”.

Yet, it is abundantly clear that all Crown counsel was attempting to do was point out that the Authorization did not allow them to unblock the calls to determine whether the intercept was, in fact, a privileged communication. (

d) Defence motion for recusal [ 31 ] Still on March 29, 2010, after having asked for Crown counsel to be held in contempt for failing to provide the factual basis upon which certain intercepts could not be disclosed because they might constitute privileged communications, defence counsel made a motion for the trial judge to either recuse himself from the proceedings, or refer the matter to another judge so that judge could determine whether the trial judge should recuse himself.

While it was counsel for Roger Tingley who made the motion, all other defence counsel either stood mute in tacit agreement or actively supported the motion. Only the prosecution opposed it. The ground offered for the motion was that Roger Tingley felt humiliated by the judge’s earlier persistence in requesting a formal re-election on each of the charges he faced. In support of the request that the judge refer the matter to another judge, defence counsel invoked R. v. Trang , 2002 ABQB 1036 , [2002] A.J. No. 1457 (QL) , in which such an unorthodox approach was used.

The trial judge ruled from the bench, quite correctly in my view, as follows: Well, I have considered the comments and the submissions made by counsel with respect to the preliminary motion by Mr. Sleeth to have me refer this motion to another judge. He has provided me with some authority that would support such a procedure. In my view the appropriate procedure in the circumstances of this case is to maintain jurisdiction over that question.

I have not been satisfied that there is any basis upon which I [should] refer this to another judge or to recuse myself from hearing the motion and the [trial] – the preliminary motion is therefore denied. (

e) Motion for a stay of proceedings, exclusion of evidence, mistrial or recusal: the roadmap motion

[ 32 ] Still on March 29, 2010, and continuing the following day, defence counsel argued a motion referred to as “the roadmap motion”. In that motion, the accused sought a stay of proceedings on the grounds the Crown had provided the Court with what was referred to as a “roadmap”, in which the anticipated evidence in support of each charge was laid out. The defence argued the trial judge was in possession of “untested evidence”; meaning information of which the admissibility had not been judicially determined. Defence argued this affected trial fairness and violated ss. 7 and 11(

d) of the Charter . Alternatively, the accused sought an order excluding all the evidence, declaring a mistrial, or directing the judge’s recusal. [ 33 ] This “roadmap” was interchangeably also called either the “court brief” or “case

summary”. It was first mentioned at the pre-trial conference on September 9, 2009, well after all accused had filed a Notice of Re-election to Judge and Jury. At the conference, Crown counsel advised the judge they were preparing this “roadmap” but explained its preparation would take some time because of the work involved to establish links between the roadmap and individual items of evidence or interception. Considering the approaching trial date in January 2010, the judge requested the roadmap be provided to the defence, by October 9, 2009, without any links. The judge also asked for a copy for himself.

Before acquiescing, Crown counsel inquired if the accused had any objection. Defence counsel advised they would provide their position in the course of the next appearance. [ 34 ] Court reconvened on October 9. At the end of that proceeding, Crown counsel provided a compact disk to each counsel and offered one to the judge. Defence counsel did not voice any objection to the judge being provided with a copy. One of the lawyers simply wanted to be assured the jury would not have access to this “roadmap”.

In the absence of any objection, Crown counsel forwarded a copy to the judge, as he had directed, through the Clerk’s Office. [ 35 ] On April 1, 2010, the judge dismissed the defence roadmap motion. The judge noted that the accused alleged their ss. 7 and 11(

d) rights were violated through “gross and egregious misconduct” on the part of Crown counsel in providing the roadmap to the Court. However, the judge ruled the applicants had failed to establish any misconduct and underlined the bona fides of Crown counsel. The judge emphasized defence counsel had not objected to the roadmap being provided to him, nor had they complained until over three months after it was provided. The judge also rejected defence arguments that trial fairness was impacted.

He pointed out that it is one of the regular functions of trial judges to review and assess evidence and to disregard it if it is later ruled inadmissible, noting that, in any event, it would be the jury and not the judge who would assess the admissible evidence to determine the verdicts. The judge also dismissed the request that he withdraw as trial judge. He applied the test of an informed person, viewing the matter realistically and practically, and having thought the matter through, and concluded such a person would not apprehend bias.

He reminded the parties that trial judges presiding over jury trials, particularly complex trials, routinely receive case summaries from Crown counsel, as such documents help the judge with trial preparation. This is so because these documents are often a very practical and useful tool for both the identification of the live issues, and facilitating the smooth and efficient conduct of the trial. (

f) Prosecution motion to vary order [ 36 ] In light of defence counsel’s position regarding the 178 interceptions that had fallen into the category of “possibly privileged” communications, Crown counsel filed a motion to vary the order in which the judge had directed them to provide details of the factual basis upon which the communications might be privileged. In a decision rendered April 12, 2010, the judge recognized the concerns raised by the prosecution.

He granted the motion, amended his earlier order, and directed that the RCMP deliver these intercepted communications to Chief Justice David Smith for the purpose of assisting in determining whether lawful privilege attached to the intercepts, and whether the factual basis for the privilege could be disclosed without breaching the privilege. (

g) Attorney General directs the entry of a stay of proceedings in relation to three accused [ 37 ] May 31, 2010, was to be another day to hear what were termed the “vetting motions”. At the opening of the hearing, Crown counsel informed the trial judge that, pursuant to s. 579 of the Criminal Code , the Attorney General was directing that a stay of proceedings be entered in relation to three of the accused. This generated much argument by counsel for the accused, especially one who represented an accused to whom the stay did not apply.

Another of the counsel, this time one whose client was affected by the stay, mused out loud about the coincidence that the stay was directed the same day the defence lawyers delivered “significant bills” to the Attorney General. It should go without saying that counsel should refrain from unsubstantiated speculation in open court about the motives of the Attorney General. (

h) Determination of privilege attaching to blocked calls [ 38 ] On July 22, 2010, after having heard the parties on four different occasions on the question of the 178 intercepted communications that had been blocked as “perhaps privileged”, Chief Justice Smith issued a decision. Having

reviewed all the communications in question, as well as the session sheets and synopses prepared by the monitors relating to these, he declined to make a ruling because of the “very unsatisfactory evidentiary vacuum” in which he was placed. He remitted the matter to the trial judge for him to make the determinations in question. [ 39 ] On August 31, 2010, the trial judge ruled that the large majority of the 178 intercepted communications were in fact privileged communications. He noted that one of the calls had a synopsis but no associated WAV file, so the judge asked the prosecution to inquire into it.

Other than solicitor-client privilege, he observed that 17 calls appeared to be communications that involved a confidential informant. He also found that some of the calls were irrelevant and contained no useful information. (

i) Vetting motions [ 40 ] In April 2010, defence counsel filed three motions seeking disclosure of redacted portions of certain documents. Many portions of these documents had been redacted in order to protect privileged information. Defence counsel argued disclosure of the redacted information was necessary in order for them to make full answer and defence. In the alternative, they sought judicial summaries of the redacted portions of the documents. The documents in question consisted of:

(1) Informations to Obtain and corresponding Affidavits; (2) source debriefing reports; and (3) officers’ notes. On May 12, 2010, a fourth motion was filed seeking similar relief regarding items contained in the “black box”; that is, the hard drive on which disclosure was provided to them.

On June 9, 2010, the accused filed a fifth “vetting motion” seeking un-redacted copies of source handlers’ notes; that is, the notes taken by police officers following their dealing with police informants. [ 41 ] As an initial step in the determination of the first of these motions, and with the consent of all parties, the trial judge ordered that the sealed documents regarding warrants and authorizations to intercept be unsealed so he could review them. [ 42 ] The motions were heard over several days.

In the course of those hearings, the prosecution served notice of its intent to seek a hearing under s. 37 of the Canada Evidence Act , R.S.C., 1985, c. C-5, in order to object to the disclosure of certain information. This generated much argument. In the end, the judge issued a decision on June 9, 2010, addressing the procedure to be used under s. 37. He determined he would first hear the evidence in the absence of the accused and their counsel.

He would then provide judicial summaries of the proceedings to defence counsel, and hear their submissions on whether witnesses should be recalled for further questioning and possible cross-examination. The judge decided the appointment of amicus curiae was not necessary. [ 43 ] The s. 37 hearing consumed several weeks. Ultimately, defence counsel were allowed to be present and participate during portions of some of these hearings, but were excluded for the portions where the information presented might identify a confidential informant.

Nine witnesses were called to testify, and each one in turn expressed concerns and reservations with respect to releasing any information and/or documentation, even in vetted form, that might compromise their obligation to protect the identity of confidential informants. [ 44 ] On September 9, 2010, the trial judge issued a comprehensive decision addressing the Crown’s claim of informant privilege pursuant to s. 37 of the Canada Evidence Act .

The judge explained that, in obtaining the various Authorizations to intercept private communications and search warrants on which the charges are largely based, the Crown relied extensively on information obtained from confidential informants. In total, 34 individuals provided confidential information to the police.

After reviewing the law and considering the arguments of counsel, the trial judge stated as follows: […] I am satisfied that the Crown has established, beyond the balance of probability, that the documentation and information sought by the accused in Vetting Motions numbered 2 to 5 inclusive, as well as the additional documentation sought by the defence counsel in their oral submissions, contains informant information that its disclosure, even in a vetted form, might identify the confidential informants and thereby breach the informant privilege to which they are entitled by law. [ 45 ] The judge therefore ruled the information sought did not have to be disclosed, and ordered the return of certain documents that had been disclosed but should not have been.

As to the first vetting motion, he determined that should continue in accordance with s. 187 of the Criminal Code . After receiving further evidence and hearing more argument, the judge decided this motion on October 4, 2010. He ruled as follows:

Having reviewed both the redacted and un-redacted version of the various affidavits, the Informations to Obtain and the Authorization that are in issue, I am satisfied that the Crown summaries, the evidence of Sergeant Janes by both his affidavit and oral testimony, the Crown’s submission as well as the edited portions of the affidavits and ITOs provide sufficient information to counsel for the accused to appreciate the nature of the edited portions of these documents and enable the accused persons to make full answer and defence. [ 46 ] The accused appealed the trial judge’s decision on the s. 37 proceeding.

Section 37.1(1) of the Canada Evidence Act provides a right of appeal if a judge, acting under the authority of s. 37 , either orders the disclosure of certain information or prohibits disclosure on grounds of a specified public interest. The Attorney General applied to this Court for an adjournment of the appeal until the conclusion of the trial. In Tingley et al. v. R. , 2011 NBCA 8 , 366 N.B.R. (2d) 390 , this Court adjourned the appeal to a date to be set by the Chief Justice once the trial in the underlying criminal matter was concluded. (

j) Second defence motion for stay, mistrial or recusal [ 47 ] While the vetting motions and the corresponding s. 37 hearings were taking place, the accused again sought an order for the trial judge to enter a stay of proceedings, declare a mistrial, or recuse himself. The motion was dismissed from the bench with reasons to follow.

The reasons were delivered four days later, on June 15, 2010. [ 48 ] The basis for the motion was that, in rendering a decision on April 1, 2010, the trial judge had made reference to “the Tingley Family organization” – a term the defence argued reflects a finding of fact made without evidence. Since some of the counts in the Indictment alleged a criminal organization, the accused argued the term the judge had used raised a reasonable apprehension of bias. [ 49 ] In his decision, the judge explained that the context in which his impugned words were stated was important.

In the course of rendering a decision denying the motion known as the “roadmap motion” in which either a stay of proceedings, a mistrial or recusal was sought, the judge was providing background information when he stated as follows: The Tingley Family organization is alleged to have operated generally in the area of the Village of Salisbury, New Brunswick, with the offences having been committed between February 1 and December 10, 2008. [ 50 ] The judge ruled that a reasonable informed person, viewing the matter realistically and practically, and having thought the matter through, would not apprehend any bias.

That reasonable person would read that paragraph of the judge’s roadmap decision in context, and note that it was immediately preceded by two paragraphs in which the judge refers to the charges that speak of “an alleged criminal organization, labeled the ‘Tingley Family’”. Taken contextually, the reasonable person would easily conclude the judge was making reference to the allegations made against the accused, and not making a determination of fact. It is somewhat surprising the accused and their counsel did not reach the same conclusion. (

k) Motion for stay: disclosure of Pond interview [ 51 ] The accused sought a stay of proceedings alleging the prosecution had failed to provide forthright responses to a disclosure request regarding the interview of a witness. The motion was eventually withdrawn. (

l) Motion for histories of intercepts and motion to dismiss [ 52 ] On October 19, 2010, the accused asked the court to order disclosure of histories relating to the 178 intercepted communications that had been blocked because they were believed to contain privileged communication. The prosecution countered with a motion to dismiss the motion, which was granted. (

m) Garofoli/Wilson motion – leave to cross-examine

[53] On October 7, 2010, on behalf of all defence counsel, counsel for Christopher Tingley advisedthe judge there would be no challenge to the Authorizations in the form of what is known as a Garofoli motion: R. v. Garofoli, (CSC), [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115 (QL). He also advised there would be no request to cross-examine theaffiants. [54] When the Court next reconvened on October 19, Christopher Tingley had changed counsel.

OnOctober 25, his new counsel advised the judge that, although a Garofoli motion had been waived, he considered it did not “preclude anargument with respect to a Parsons application, a Wilson application, [or] a Vanweenan application, all relating to the – the validity ofthe authorization on its face or the sub-facial value of the affidavit or the substantive value of the affidavit”, evidently referring to Reginav. Parsons et al., (ON CA), [1977] O.J. No. 2425 (QL), aff'd (CSC), [1980] 1 S.C.R. 785, [1980] S.C.J.No. 22 (QL) (sub nom. Charette v. R.), Wilson v. R., (CSC), [1983] 2 S.C.R. 594, [1983] S.C.J.

No. 88 (QL), and R. v.Chesson, (CSC), [1988] 2 S.C.R. 148, [1988] S.C.J. No. 70 (QL). [55] I pause here to note that in Garofoli, the majority reasons of the Supreme Court explained thesignificance of these cases in the following terms: First there is a "Parsons voir dire," named after R. v. Parsons (1977), (ON CA), 37 C.C.C. (2d) 497 (Ont. C.A.), aff'd (CSC), [1980] 1 S.C.R. 785, sub nom. Charette v. The Queen.

The function of this hearing before the trial judge is todetermine such issues as whether the authorization is valid on its face, whether the police executed the interception within the terms ofthe authorization, and whether statutory requirements such as reasonable notice were complied with. The remedy is exclusion under s.178.16. The second is the "Wilson application". This hearing takes place before the issuing court, to determine the substantive orsubfacial validity of the affidavit. The remedy is the setting aside of the authorization. The third is a "Garofoli hearing".

This is a hearingbefore the trial judge to determine the compliance of the authorization with s. 8 of the Charter. The remedy is a determination under s.24(2) of the Charter. The fourth, and last, procedure is a "Vanweenan hearing", so-called after one of the appellants in R. v. Chesson, (CSC), [1988] 2 S.C.R. 148. This again is a voir dire before the trial judge, but with the object of determining whetherthe authorization names all "known" persons as required by ss. 178.12(1)(

e) and 178.13(2)(c). The remedy again is exclusion under s.178.16. [para. 38] [56] On November 20, 2010, the accused filed a motion thereafter referred to as a Garofoli/Wilsonmotion. The Notice of Motion alleged there were insufficient grounds to justify the issuance of the Authorization for the interception ofprivate communications. According to the accused, the affidavit filed in support of the application for the Authorization contained“misleading statements, thereby demonstrating a reckless disregard for the truth”.

Defence counsel therefore submitted the Authorizationwas invalid, and that any evidence derived from the execution of the Authorization was illegally obtained and violated ss. 7 and 8 of theCharter. The remedy sought was the exclusion of any evidence obtained from the Authorization.

Defence counsel also sought leave tocross-examine not only the affiant but also Crown counsel Michel Bertrand, who had been the agent of the Attorney General for thepurposes of ss. 185 and 186 of the Criminal Code at the time the Authorization was obtained. [57] On January 12, 2011, defence counsel argued their motion should be heard not by the trialjudge, but by the judge who had issued the Authorization, Chief Justice Smith.

The following day, the trial judge ruled that he should bethe one to hear the motion. [58] Defence counsel also sought leave to cross-examine a number of other people in support of theirmotion. Crown counsel asked the judge to rule on whether or not defence counsel would be given leave to cross-examine Mr. Bertrand.At this point, defence counsel advised the judge of their intention to file a broader motion seeking the removal of Mr. Bertrand as Crowncounsel.

As he had many times before, the judge instructed defence counsel to file motions in writing, setting out the relief sought, thegrounds for this relief, and the evidentiary foundation that could justify it. The request to cross-examine was adjourned pending thefiling of the motion to disqualify Mr. Bertrand. (

n) First motion to disqualify prosecutor Bertrand and preliminary motion to dismiss [59] By January 17, two additional motions and an Amended Notice of Motion had been filed. Oneof the motions and the amended Notice of Motion dealt with the disqualification of Mr. Bertrand, while the other sought additionaldisclosure. Crown counsel pointed to a number of defects in the disqualification motion. Moreover, Crown counsel filed a motion todismiss the disqualification motion on the grounds it did not fulfil the requirements the trial judge had imposed.

This preliminary motionto dismiss was heard over two days at the end of which the judge granted the motion, ruling that “the accused have decided not tocomply with [the] most basic and fundamental directions”. The judge was blunt:

With respect to the request for an order that the defendants’ motion be struck, I note that from the outset of my involvement in this matter, and repeatedly on several occasions since then, most recently on Monday of this week, I have instructed counsel in the presence of the accused that any pretrial motions for relief, Charter or otherwise, would require filed written notices of motion brought in a timely manner and setting out clearly and concisely, (

a) the specific nature of the relief being sought; (

b) the legal grounds upon which the relief is sought; and (

c) the evidentiary foundation they will be relying upon or intend to establish in support of the motion. Defence counsel appear to be unwilling or unable to accept or follow those directions despite warnings that motions that do not comply may not be heard or entertained by the Court. Again, that was brought to their attention once again this past Monday.

At that time, Crown offered to the defence an opportunity to file those particulars or provide those particulars, and as I took the exchange during that session, counsel for the defence confirmed that they would not comply with Crown counsel’s request that they amend their motion or that they provide particulars of the grounds upon which they have based their request for the relief they are seeking as well as the evidentiary foundation upon which they base their claim.

Crown counsel then advised that it was seeking an order to strike the defence motion and would file a preliminary motion in that regard. [ 60 ] Although he granted the Crown’s preliminary motion and dismissed the accused’s motion to disqualify Mr. Bertrand, the judge did so without prejudice to the defence’s right to file a new motion. He indicated that, but for the Crown inviting him to decide in such a manner, he was “not certain that [the without prejudice] condition would have been included in [his] decision”.

He concluded by repeating that “if [defence] counsel wish to deliberately disregard the directions of the Court for whatever reason, they risk doing so at their clients’ peril”. (

o) Second disclosure motion [ 61 ] Pending the Garofoli/Wilson hearing, the accused sought further disclosure, which they claimed might establish certain omissions in the affidavit upon which the Authorization to intercept private communications was based. Some of the requested disclosure was answered, but some was contested. In the affidavit in support of the Authorization, the affiant asserts having retrieved all investigative files in the RCMP database systems associated with the eight targets. These were provided to the accused.

However, the accused now requested information and documents, if any exist, relating to all other 14 “Known Persons” identified in the Authorization, except the six who had been vetted. The judge ruled the accused had not established either the existence, or any semblance of potential relevance, of the information sought. [ 62 ] The accused also sought all notes of a particular officer with respect to his investigation of the “Tingleys”, which they meant to include all “Principal Named Persons” and all “Known Persons” identified in the Authorization to intercept, except those whose names had been redacted.

The officer in question was a handler of one of the confidential sources and was consulted by the affiant as an expert in criminal organizations.

The judge determined that the officer’s notes relating to all Principal Named Persons were relevant, and ordered their disclosure, but he held those relating to the other Known Persons were not relevant. [ 63 ] In addition, the accused sought disclosure of “all warrants, and related ITOs, executed since 1995 against all targets of the Authorization to intercept (except for those vetted) as well as all relevant documents relating to the fruits of such search warrants, including inter alia , all the reports to a judge”.

The judge denied the accused this relief on the grounds that there was no evidence to establish the existence or relevance of the requested materials. However, the judge did order the prosecution to make reasonable efforts to locate warrants, and the applications and affidavits filed in support of these, relating to a 2001 search of the properties of two of the accused, as well as searches conducted relating to the Principal Known Persons between 1997 and 2008. (

p) Second motion to disqualify prosecutor Bertrand – preliminary motion to dismiss [ 64 ] Defence counsel’s first motion to disqualify prosecutor Bertrand having been dismissed without prejudice on February 14, 2011, they then filed a second motion seeking the same relief. Alternatively, they sought to have prosecutor Bertrand excluded as Crown counsel for all attacks regarding the Authorization, with a final decision as to whether he could participate

at trial to be made once the Garofoli/Wilson motion was heard. In sum, their grounds were that Mr. Bertrand had a conflict of interest because he had played what they alleged was a “lengthy and far-reaching” role during the police investigation. According to the accused, this impacted on his “ability to objectively evaluate his responsibility to the public as a Prosecutor”. They claimed that, if Mr. Bertrand were to continue as Crown counsel, this would constitute an abuse of process and affect trial fairness, in violation of ss. 7 and 11(

d) of the Charter . [ 65 ] As they had with respect to the first motion to disqualify prosecutor Bertrand, Crown counsel responded with a motion to strike out the defence motion, or alternatively, portions of the affidavit filed in support.

In reply, the accused filed its own motion to strike the Crown’s motion to strike. (The absurdity of all this is surely not lost on the reader.) On March 1, 2011, the trial judge dismissed the Crown’s motion to strike, ruling however that striking out certain portions of the affidavit filed in support of the disqualifying motion would be considered at the hearing of the defence motion on its merits. Eventually, the judge would strike out a few portions of the affidavit. [ 66 ] When the proceedings resumed, on March 21, 2011, to hear the defence motion to disqualify Mr.

Bertrand, defence counsel obtained an adjournment in order to enable them to file another motion for a stay of proceedings. The proceedings were adjourned to the next day. (

q) Third defence motion for a stay of proceedings [ 67 ] On March 22, 2011, the accused filed yet another motion for a stay of proceedings on the grounds “[t]he Crown interfered with a [defence] witness, Gilles Lemieux [who had been counsel for Christopher Tingley before his retainer was terminated], and attempted to obtain the evidence of this witness under oath outside the proper forum, i.e. the open process in a criminal trial”. Ironically, defence counsel must have done the same thing when they obtained an affidavit from Mr. Lemieux in support of their motion to disqualify Mr. Bertrand.

Nevertheless, the accused now argued that Crown counsel’s actions in asking Mr. Lemieux to attend an interview, which they wanted to record under oath, constituted an abuse of process. (

r) Second motion to disqualify prosecutor Bertrand [ 68 ] Before proceeding with the motion to disqualify prosecutor Bertrand, the question of Mr. Lemieux’s affidavit was addressed, and portions were struck out. Crown counsel wanted to first address the question of whether the evidence adduced by the defence “constitute[s] sufficient evidence for the Court to embark upon the [inquiry]”. At this point the following exchange takes place: THE COURT: You're talking about the threshold – the threshold issue? MR BOURGEOIS: That's right. THE COURT: That's been decided. That was decided the last time around.

I'm not revisiting that. MR BOURGEOIS: Okay, so if I can make directive clear, the - the Court has made a ruling that based on the evidence that is presently before the Court - THE COURT: Mr. Bourgeois. MR BOURGEOIS: - that the threshold requirement is – is met? THE COURT: You made a Motion to strike. MR BOURGEOIS: Yes. THE COURT: We granted you ample time to present that Motion. MR BOURGEOIS: Yes. THE COURT: It was dismissed. MR BOURGEOIS: Yes, I understand that. THE COURT: I'm not revisiting the issue again. You can take it for what you wish, but that's my ruling and I'm not saying anymore about it.

MR BOURGEOIS: Well just – just for the purpose of understanding, and it's really for the purpose of understanding. THE COURT: The threshold issue has been dealt with. MR BOURGEOIS: And it has been met. THE COURT: Your Motion to dismiss was struck, was dismissed. MR BOURGEOIS: Yes, I understand that. THE COURT: Very well. That's where you brought that first time, was it not? MR BOURGEOIS: That was one issue that I'm not sure of. THE COURT: Well I dealt with it and that's what I dealt with, so I'm not giving you explanations of rulings at this stage. They're very clear.

It was very evident that that Motion to dismiss was in – in itself dismissed, so please move on to something else. [ 69 ] The hearing proceeded with much discussion as to the examination and cross-examination of witnesses. In the end, it was determined that Mr. Lemieux would be cross-examined on his affidavit and that several police officers would be made available to be examined by defence counsel. Defence counsel’s earlier request to cross-examine Mr. Bertrand was withdrawn. The cross-examinations took place. [ 70 ] The last police officer to be examined was Sergeant Mark Janes, the primary investigator.

He was extensively cross-examined over several days. The cross-examination by one of the defence counsel revealed that when one of the accused was assessed for his fitness to stand trial, the disclosure material that had been provided to his lawyer was also provided to the medical assessor. This drew arguments of illegality because that information contained interceptions of private communications involving not only that accused but one or more of the others as well.

The relevance of this line of questioning on the issues to be determined in the disqualification motion was raised as a Crown objection and drew arguments over the better part of two days. In the end, the judge ruled as follows: I also reviewed the audio recording of the proceedings and I believe counsel has as well except for Mr. Bourgeois [one of the Crown counsel who argued the Bertrand disqualification motion]. It seems pretty clear from the submissions of Mrs. Beaulieu [then counsel for the accused who was assessed] and Mr. Bertrand at that time, that Mrs.

Beaulieu was fully aware that the [C]rown intended to forward that information to the assessing physician including the intercepted communications. It is also quite clear that Mrs. Beaulieu had no objection to that proposal. The only concern she raised was that she be provided with copies of exactly what the [C]rown was forwarding to Restigouche. As I recall she indicated that they are comfortable with that. In the present motion it is quite clear to me that Sergeant Janes was either not apprised of this information and the exchanges that obviously took place between [C]rown and Mrs.

Beaulieu or that he cannot recall them now. In my view it would be patently unfair to Sergeant Janes to allow Mr. Sleeth to continue with his proposed line of questioning without fully apprising Sergeant Janes of all of the background of the communications between the [C]rown and Mrs. Beaulieu both leading up to and during the hearing of March 24, 2009, concerning the disclosure of the hard drive to the Restigouche Hospital and any other documents related to that. I am not satisfied that – with the information Mr.

Sleeth now has available to him on this issue that he can maintain a good faith basis for insisting upon continuing with this line of questioning without apprising Sergeant Janes of this collateral information. Unless the witness is presented with a full background relating to the disclosure of the hard drive to the Restigouche Hospital Mr. Sleeth is not to pursue this line of questioning. [ 71 ] For days, Sergeant Janes was cross-examined in relation to what should have been the relatively straight-forward issue of Mr. Bertrand’s involvement during the investigation phase of the operation.

The cross-examination often strayed far beyond the objectives of the hearing. On the sixth day, Crown counsel raised an issue of privilege with respect to a particular line of questioning that was being pursued. This led to another prosecution application under s. 37 of the Canada Evidence Act , which in turn brought on a few days of bickering over procedural matters. Eventually, the Court agreed to enter into the proposed s. 37 hearing and decided amicus curiae would be appointed to assist the Court.

The amicus would have the power to cross-examine prosecution witnesses, present evidence, raise points of law and make submissions regarding the issues raised in the proceeding. Over three days, input was provided over the role and mandate of the amicus , the logistics of his remuneration, as well as the scheduling of the s. 37 proceeding. [ 72 ] The s. 37 hearing resulted in orders from the trial judge allowing the disclosure of certain materials, although portions were withheld due to privilege.

As a result of the judge’s ruling, the prosecution also made some other “consequential” disclosure to defence counsel. This led to a barrage of complaints and arguments over several days about trial unfairness, disclosure obligations, and police and prosecutorial misconduct. Defence counsel informed the court of their intention to file another motion for a stay of proceedings. [ 73 ] The cross-examination of Sergeant Janes, which had been suspended on April 11, 2011,

resumed on August 29, 2011, despite defence objections that it be further delayed. At one point, as he was being cross-examined, the following exchange took place: Q: You had agreed the last time you were testifying that he was an agent, correct? A: My Lord, that’s true, but that was a mistake. I – after having testified to that I left here, I went straight to the office, I checked policy, and after having verified policy and exactly what is the definition of an agent, I realize that I had made a mistake on the stand.

I in fact called Staff Sergeant Power to advise him: “Listen, I don’t know how we’re going to deal with this, but I – I said that Ron Jackson was – was an agent, and I know that he’s not an agent.” I was confused with the immunity agreement and I made a mistake with one part of the definition of what an agent is, according to RCMP policy. And in fact I apologize to the Court, My Lord, I – that wasn’t – was definitely not intentional.

There was nothing for the Crown to gain – or the police to gain by saying that he was an agent, and I just – I had made a mistake and I – I apologize. [ 74 ] Of course, the witness had been cautioned not to discuss his testimony outside the courtroom once cross-examination had begun. His candid spontaneous disclosure of having discussed his testimony resulted in further defence allegations of misconduct.

The circus of defence hyperbole reached a crescendo when one of the lawyers, referring to the testimony he had just heard, stated “I find myself at the point where for the first time in almost three decades of appearing in the courts of being on the verge of being violently ill”. [ 75 ] The following day, August 31, 2011, the accused brought a motion to have Sergeant Janes held in contempt and the proceedings declared abusive. After entertaining several hours of argument, the trial judge ruled the cross- examination should continue.

He was not prepared to further adjourn the hearing of the Bertrand disqualification motion that had begun in March. Cross-examination of Sergeant Janes resumed on August 31, but was interrupted again when defence counsel asked to be provided with a copy of his notes from April 2011. This resulted in more arguments over the vetting of the notes. The arguments continued into the following day. [ 76 ] When the proceedings resumed on September 7, Crown counsel asked for permission to speak to Staff Sergeant Power, who had been excluded from the proceeding. Defence counsel objected. The judge denied the request.

Sergeant Janes returned to the witness stand for the continuation of his cross-examination. Almost immediately, Crown counsel objected to any disclosure of the communication that had taken place between Sergeant Janes and Staff Sergeant Power over the perceived error Sergeant Janes had made while testifying in April. The prosecutor asked the Court to conduct yet another hearing pursuant to s. 37 of the Canada Evidence Act . This led to another day and a half of procedural wrangling, and another defence request for a stay of proceedings.

The judge refused to stay the proceedings, and ruled he would proceed with another s. 37 hearing; this time without the assistance of amicus . This led to more arguments. Defence counsel even objected to the suggestion the two witnesses the prosecution intended to call at the s. 37 inquiry being informed of the nature of the hearing.

Once the s. 37 hearing was completed, and a vetted transcript provided to defence counsel, several more days of arguments ensued culminating in the judge generally overruling the claim of privilege and ordering the disclosure of certain portions of the vetted transcript. [ 77 ] The prosecution had made a request to limit further cross-examination of Sergeant Janes, but withdrew that request. It asked for more time to consider its position. When the matter resumed, Crown counsel reversed their position and once again asked that the cross-examination be limited.

It was argued the proceedings were far afield from legitimate inquiries into relevant matters and were impeding on the rights of the public to have a timely resolution of the matter on its merits. In particular, Crown counsel argued what follows: Unless the Court has an offer of proof of flagrant impropriety and that threshold – that’s – that was established in most recently in Nixon in the Supreme Court of Canada but also in the Tower decision. The Nixon decision is [published at] [2011] [S.C.J.] No. 34.

And, I can give the Court the citation for Tower but I just don’t have it in front of me but I certainly can get it. Unless there is an offer of proof of – threshold of flagrant impropriety – it is problematic for the Court to enter into (inaudible) into matters that are strictly within the exclusive jurisdiction of the Attorney General. Exclusive jurisdiction being – one of those elements is decision in terms of who the Attorney General will appoint to prosecute a case.

If the – if the Court embarks on this inquiry and or continues to – to hear the inquiry it’s falling over into an area where the Court becomes, in effect, supervisor to the Crown. This is the problem that the Crown is very concerned about.

Now, it is the Crown’s position that the Court can – can regain its jurisdiction by stopping the inquiry or ending the inquiry and returning to the – the – I guess the proper function of assessing the prosecution against the accused on its merits. [ 78 ] Later, Crown counsel added: But that jurisdictional issue is – while it’s of tremendous concern to – to the Crown, what we are indicating is that provided we know that this matter is going to come to a very quick close, the jurisdictional matter can be – the jurisdiction can be regained once the matter

is quickly brought to a close and we revert back to determination of the – the actual merits of charges against the accused. [ 79 ] To this, the judge replied: THE COURT: That argument was raised originally by Mr. Bourgeois at the very outset of the hearing of the motion, was it not? As I recall – I haven’t had an opportunity to go back through my – my rulings on that but it seems to me that that was an issue raised and I suspect I determined at the time that there was sufficient evidence to proceed into the motion.

That’s where we ended up. [ 80 ] On October 26, 2011, Crown counsel requested an opportunity to make their point on the jurisdictional question by a formal motion with supporting documents. As with virtually every prosecution request, defence counsel vehemently objected. However, the court acquiesced. (

s) Defence Omnibus motion [ 81 ] On November 2, 2011, defence counsel filed a Notice of Motion that was referred to in argument as the “ Omnibus motion”. No date was ever assigned for the hearing of this motion, so it remained in the category of those yet to be heard. In their Notice of Motion, defence counsel sought the suspension and adjournment of the Bertrand disqualification motion, and the hearing of their Omnibus motion prior to the hearing of any other proceeding. They further requested a stay of proceedings under s. 24(1) of the Charter and the lifting of all publication bans.

They also sought an early hearing of a contempt application they had made against Sergeant Janes. [ 82 ] With respect to the claim for a stay of proceedings, the accused alleged “the Crown and police conduct is of such a nature in this case as to give rise to the remedies associated with every category of abuse of process”. They base this allegation on their claim of “missing, late and/or hidden disclosure of evidence by the police and Crown, as well as on the quality of some of the material disclosed evidence”. (

t) Prosecution motion for recusal [ 83 ] The defence Omnibus motion was pre-empted by a motion the prosecution had filed on October 27, 2011. On November 2, Crown counsel filed an Amended Notice of Motion. The salient difference, between the original Notice and the Amended one, was with respect to the relief sought. In the original Notice, the prosecution was seeking a new trial or, in the alternative, a judicial stay.

In the amended version, it sought the recusal of the judge, not on the grounds he had done or said anything that demonstrated bias in favour of the defence but rather, on the grounds that, by entering into and continuing an inquiry into the Bertrand disqualification issue, he had improperly put the court in a supervisory position over the Crown. On November 8, as a result of comments made to the judge the previous day, the prosecution filed a third version of the Notice of Motion, adding a paragraph under the rubric “Evidence Supporting the Orders Requested”.

In the new paragraph, the prosecution retreated from its earlier position, which had stated the prosecution was not arguing the judge was biased in favour of the defence. [ 84 ] One of the defence counsel summarized this portion of the proceedings as follows: […] this is the fifth amendment. Ms. Gregory says there’s been three motions. There’s been three titled notices of motions but there’s been five documents that they’ve presented. One in particular was the October 26th notice of motion that they filed and in that particular document they actually recognize essentially what Mr. Sleeth was saying.

They were looking for two remedies, two orders. The first one was a new trial because of the concerns they had about the jurisdictional error that had been committed by this Court. And then they recognized that if that was dismissed, they had no alternative but to request you enter a judicial stay because of the dilemma that presents. And that’s just one — that’s just one sort of example of a particular sort of remedy they are tinkering with and they come back to a completely different view four days later when we get an email.

Now they didn’t file this with the Court and — and basically in that particular email they indicated there was going to be a revised motion and they were going to amend the word “new trial” that had been in the previous motion to “mistrial”. And the second remedy they were seeking was the exclusion of the

section 37 hearings. So on October the 31st, they in their sort of their morphing and ebb and flow here, and the movement of this sort of exercise, said they were going to request an exclusion of the

section 37 hearing records but then right on the heels of that, on November the 2nd, they come in and they indicate that they want […] the inclusion of the Court record hearings under

section 37.

[ 85 ] After engaging in several days of argument over whether the Record on Motion should include anything relating to the s. 37 proceeding, other than the very fact the Court actually held such a hearing, the trial judge ruled as follows: […] the ex parte portions of the

section 37 Canada Evidence Act hearings which have not been disclosed to the accused and for which they were excluded from the proceedings, will not be included in the record in the Crown’s motion requesting my recusal from these proceedings, which was made on the basis of an apprehension of bias, actual bias and/or a loss of impartiality in relation to the Crown. [ 86 ] The hearing of the prosecution’s motion began on November 28, 2011. It was preceded by a defence request for more time to prepare, which was denied. The hearing continued on November 29 and 30, and a decision was delivered on December 9, 2011.

The principal order sought in the prosecution’s motion was stated to have been as follows: In accordance with the Constitution Act , 1867/1982, and the common law, the trial judge is recused from hearing any further proceedings in this matter due to an apprehension of bias, actual bias and/or a loss of impartiality in relation to the Crown. [ 87 ] Alternatively, the prosecution requested that, in the event recusal was to be denied, the judge issue an order limiting the further cross-examination of Sergeant Mark Janes and order a prohibition on the recall of any witnesses, or the calling of further witnesses, in relation to the abuse of process motion seeking the removal of the prosecutor. [ 88 ] The principal grounds upon which relief was sought were: (1) “an apprehension of bias, actual bias and/or a loss of impartiality arises from the Court’s entry into and the continuation of an inquiry into prosecutorial discretion without admissible or other evidence of apparent wrongdoing in the nature of ‘flagrant impropriety’ on the part of the Crown”; and (2) “the entry and continuation of the inquiry into Crown and RCMP actions without evidence such as ‘flagrant impropriety’ places the Court in a supervisory role over the Crown and results in a loss of impartiality”.

Other grounds, which the trial judge considered secondary, were that by entering into, and further continuing the inquiry, the Court “substantially risks a public interest privilege”, breaches a societal interest in having criminal charges tried on their merits within a reasonable time, and violates “the Crown’s right to a fair trial, being an adjunct principle incorporated within

section 11(

d) of the [ Charter ]”. [ 89 ] The trial judge denied both the primary and secondary relief sought. After reviewing the grounds in support of the motion, the judge outlined the procedure leading to the prosecution’s recusal motion. The following is noteworthy: 1. The prosecution’s recusal motion comes approximately seven months after the commencement of the hearing into the Bertrand disqualification motion; 2. Mr. Bertrand’s disqualification was sought sometime after defence were made aware, in late 2010, that Mr.

Bertrand would be replacing a member of the prosecution team who had accepted a new position elsewhere and that he would be taking on a significant role in the hearing of the pending Garofoli/Wilson application; 3. The allegations against Mr.

Bertrand are essentially that his diverse roles in the case, first as Crown advisory counsel during the investigation and application for a wiretap Authorization, then as Crown disclosure counsel who was consulted on virtually every item of disclosure, made him a party to the investigation, resulting in a loss of the objectivity one expects of a prosecutor, and that his continued participation in the trial and pre-trial proceedings would constitute an abuse of process; 4. The accused have indicated their intention to seek leave to call Mr. Bertrand as a witness on the Garofoli/Wilson application; 5.

By the time the prosecution’s recusal motion was filed, the testimony of seven witnesses had been completed, the cross- examination of an eighth witness was underway, and the judge had entertained two applications under s. 37 of the Canada Evidence Act ; 6. When the first Bertrand disqualification motion was dismissed on the grounds defence counsel had both failed and refused to identify the grounds and evidentiary basis upon which they were relying in seeking Mr. Bertrand’s disqualification, it was dismissed without prejudice to file a new motion “at the suggestion and request of the Crown”; 7.

After the second Bertrand disqualification motion was filed, another Crown request to strike was made, but this time the judge ruled that “the evidentiary threshold had been satisfied”; 8. In the course of Sergeant Janes’ cross-examination, he revealed for the first time the existence of a statement that had not previously been disclosed to the accused; 9.

This revelation led to a hearing under s. 37 of the Canada Evidence Act , following which the judge ruled that the vast majority of the statement could be disclosed since the public interest privilege asserted could not be sustained with respect to the majority of the statement;

10. When Sergeant Janes’ cross-examination resumed, he disclosed he had discussed his testimony with a superior officernotwithstanding a court directive that he not discuss it with anyone while he was under cross-examination; 11. This revelation led to another hearing under s. 37 of the Canada Evidence Act; 12.

Before submissions were made on the issue of vetting the evidence heard during that ex parte proceeding, Crown counselrequested a direction that any question posed to Sergeant Janes in cross-examination relating to either of two named individuals befollowed by a brief pause to allow the Crown to assess the impact the question might have on the claimed public interest privilege and toallow for any resulting objection; 13.

After the trial judge ruled with respect to the vetting of the transcript of the latest s. 37 hearing, Crown counsel, havingadvised it would not be appealing the decision, withdrew the request for a direction relating to the cross-examination of Sergeant Janes; 14. Crown counsel also advised it was no longer maintaining the claim of public interest privilege, as a result of which the s. 37objection was dismissed; 15. When the proceedings next resumed, Crown counsel advised the prosecution was reversing its position, and would seeklimits on the cross-examination of Sergeant Janes; 16.

The request, later presented in writing, was broader than what had earlier been pursued, as it sought to limit the further cross-examination of Sergeant Janes and to prohibit the recall of any witnesses, or calling of further witnesses, within the Bertranddisqualification motion; 17. Later, the prosecution filed their “request” in the form of a formal motion, but the relief sought was significantly altered, inthat the Crown now was asking for an order directing a new trial “as a result of an error of constitutional law by the Court” and, in thealternative, a judicial stay of the matter.

The “request” no longer sought any limitations on the questioning of Sergeant Janes, orregarding the conduct of the Bertrand disqualification motion; 18. Before the motion was heard, the prosecution filed an Amended Notice of Motion in which it dropped its request for a newtrial and instead sought the judge’s recusal or, alternatively, limits on the cross-examinatio

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