2014 QCCA 786, 2014 QCCA 786

Pasquin c. R. 2014 QCCA 786 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004359-095 (500-01-003123-061 SEQ. ACC. 017) DATE: April 15, 2014 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. CLAUDE C. GAGNON, J.A. LOUIS PASQUIN APPELLANT - Accused v.

HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix JUDGMENT [ 1 ] On appeal from a judgment of the Court of Quebec, Criminal and Penal Division, District of Montreal (the Honourable Judge Carol St-Cyr), rendered on March 6, 2009, that found the appellant guilty of various offences related to drug trafficking. [ 2 ] For the reasons of Doyon, J.A., with which Kasirer and Gagnon, JJ.A. agree, THE COURT : [ 3 ] ALLOWS the appeal with respect to count 4 of the indictment (possession of prohibited substances for the purpose of trafficking); [ 4 ] SETS ASIDE the trial judgment on this count and DIRECTS that a verdict of acquittal be entered; [ 5 ] DISMISSES the appeal on the other counts.

FRANÇOIS DOYON, J.A. NICHOLAS KASIRER, J.A. CLAUDE C. GAGNON, J.A. Mtre Pierre Panaccio Pierre Panaccio, attorney Counsel for the appellant Mtre Brigitte Martin Mtre Isabelle Doray Prosecutors for the Director of Public Prosecutions Counsel for the respondent Date of hearing: January 14, 2014

REASONS OF DOYON, J.A. [ 6 ] The appellant raises two arguments: (1) the wiretap evidence was inadmissible and should have been excluded and (2) the conviction is unreasonable in that the trial judge failed to take into account evidence that was favourable to him and the circumstantial evidence could also have led to an acquittal. For the following reasons, I find that the appellant is wrong and the appeal should be dismissed, except as it concerns count 4 (possession of drugs for the purpose of trafficking), which the respondent has in fact conceded.

BACKGROUND [ 7 ] The appellant is a lawyer who practiced mainly criminal law. According to the indictment, the offences for which he was convicted [1] (conspiracy to traffic in drugs, drug trafficking, traffic in drugs for the benefit of or under the direction of or in association with a criminal organization, and possession of drugs for the purpose of trafficking) were committed between July 13, 2005, and March 14, 2006. [ 8 ] According to the prosecution's case, the criminal organization in question is a drug trafficking network (dealing mainly in cocaine) led by Louis Alain Dauphin.

Its evidence depended essentially on two wiretap operations, the physical surveillance of some members of the organization, and searches. The police investigation, called [ translation ] "Project Piranha", led to one seizure of 38 kilos of cocaine and another of 11 kilos on October 13 and 14, 2005, at the respective homes of two members of the organization where deliveries had been made that day.

The investigation continued until March 14, 2006, when the appellant and several members of the organization were arrested. [ 9 ] The Montreal cocaine deliveries were orchestrated by a certain Michael Russel, whose suppliers were in British Columbia, where he was living with his wife, the appellant's sister. According to the prosecution, Russel delivered cocaine to Dauphin on at least five occasions: around mid-July and on August 7, September 1 and 5, and October 13, 2005.

The trial judge accepted the evidence that deliveries had likely taken place on July 20, on August 7, in late August, in early September, and on October 13. He added that [ translation ] "the same modus operandi of supplying narcotics appears on at least four occasions. Each time, Russel made a trip to Kelowna before returning to Montreal to meet with Dauphin". [ 10 ] According to the appellant's version, he met Russel in early July 2005, when his sister visited the Montreal area. He later allowed Russel to stay with him whenever he visited Quebec.

According to the prosecution, the appellant served as middleman for Russel and Dauphin, facilitating the conspiracy’s progress, and helping in the commission of offences. [ 11 ] Although he admitted to having introduced Russel to Dauphin in mid-July of 2005, the appellant maintains that he knew nothing of their association or their criminal enterprise and that most of their meetings took place without his knowledge, even when in his home. He testified that he became aware of their activities only after the October 13 and 14 seizures.

He states that on October 14, Dauphin and an accomplice named Bilodeau (in whose home part of the cocaine was seized) met with him to obtain professional advice because of the seizures and that it was only then that Dauphin told him that he and Russel trafficked in cocaine. [ 12 ] Let us now consider the electronic surveillance. [ 13 ] At the beginning of the police investigation, neither the appellant nor Russel were persons of interest in the eyes of the police.

At the time of the first wiretap application, on July 13, 2005, they were not among the [ translation ] "known" persons whose private communications the police officers were seeking authorization to intercept. The police officers were interested in Dauphin, who was targeted by the wiretap application, as well as several other individuals.

The authorization was granted on July 13 by Gilles Garneau, J.C.Q., and included a [ translation ] "basket" clause authorizing the interception of conversations with any unknown person communicating with a targeted person, and vice-versa. [ 14 ] On July 16, 2005, a first conversation between the appellant and Dauphin was intercepted.

Because he realized that it was a conversation between a target and a solicitor, and therefore a conversation that might be covered by privilege, the analyst in charge of the wiretap set in motion the procedure under Directive 015-654-02-03 (also called the "Directive") adopted in 2002 by the Electronic Surveillance Unit of the Sûreté du Québec.

The purpose of this directive is to standardize the treatment of communications involving a solicitor who is not targeted by a wiretap authorization and provides for two separate procedures, depending on whether the surveillance is being monitored live or if it is pre-recorded. [ 15 ] With live monitoring, the analyst who observes that one of the callers is a solicitor must interrupt the interception, that is, he or she must immediately stop listening to the conversation and stop recording.

The portion of the conversation that is already recorded is then sealed, archived, and access to it is blocked. [ 16 ] As for pre-recorded monitoring, as its name indicates, it occurs once the conversation has been recorded. It is entirely recorded and kept for later monitoring. In that case, the Directive states that the analyst must stop listening as soon as he or she observes that one of the callers is a solicitor. The analyst must then block access to the recording, seal it, and archive it.

The Directive does provide, however, that if the analyst has reasonable grounds to believe that a conversation that has been made inaccessible is not privileged, the head of the Electronic Surveillance Unit may inform an agent (within the meaning of subsection 185(1) Cr. C. ) and send it on, sealed, for the latter to determine whether a judicial decision should be sought on the matter. [ 17 ] This case concerns pre-recorded monitoring.

Indeed, the July 13 authorization provided for the necessity of performing live monitoring only in certain situations that are not at issue here (basically, the surveillance of communications intercepted in businesses). This means that, with regard to the conversations between the appellant and Dauphin, the police officers proceeded according to the procedure respecting pre-recorded monitoring. [ 18 ] Between July 16, and October 26, 2005, sixty-eight conversations involving the appellant were intercepted, archived and made

inaccessible by the electronic surveillance unit. The frequency of the conversations between the appellant and Dauphin intrigued police officers, however, and they conveyed their concerns as to the privileged nature of the conversations to Mtre Roger Carrière, the prosecutor assigned to the investigation and the agent specially designated in accordance with subsection 185(1) Cr. C . On October 26, Mtre Carrière presented an ex parte written motion before Gilles Garneau, J.C.Q. asking him to rule on the privileged nature of the conversations and determine those to which the police officers might have access.

This written application was supported by the sworn statement of Officer Martin Robert, who added that there had been only two conversations between the appellant and Dauphin since the searches performed on October 13 and 14, with Dauphin using his wife's mobile phone each time. [ 19 ] For the purpose of his application, Carrière wrote that, [ translation ] "since at least October 13, 2005, ... the police officers have had reasonable grounds to believe that Mtre Louis Pasquin is involved in the criminal activities of Louis Alain Dauphin ... and that his residence is regularly used for that purpose".

He added that he therefore intended to [ translation ] "present an ex parte application under subsection 186 (2) Cr. C . in the very near future ... ". [ 20 ] Of the 68 conversations, Garneau, J.C.Q. found that 47 were not covered by privilege. The police officers were therefore made aware of those. The 21 other conversations would remain sealed and unavailable to them.

The conversations as a whole reveal the existence of a close relationship between the appellant, Louis Alain Dauphin, and Michael Russel. [ 21 ] On December 19, 2005, Mtre Carrière filed a new application similar to the first, this time before Jean-Pierre Boyer, J.C.Q., to obtain a ruling as to whether three more conversations between the appellant and Dauphin, intercepted on November 15 and 19, 2005, were privileged.

In the sworn statement filed in support of the application, Officer Robert added [ translation ] "that after the seizures conducted on October 13 and 14, 2005, Louis Alain Dauphin and Mtre Louis Pasquin avoided communicating with each other too often", but that communication started up again on November 15.

He added that listening to the 47 conversations that were deemed by Garneau, J.C.Q. not to be privileged gave him reasonable grounds to believe that the appellant had participated in criminal offences. [ 22 ] Two of the three conversations were subsequently deemed to be privileged by Boyer, J.C.Q. [ 23 ] On that same occasion, Mtre Carrière presented a new written application to intercept in which the appellant and Russel were identified by name.

He declared that he first obtained the Deputy Attorney General's authorization, as required by the procedure established by the Prosecutor's office in May of 2001 for when a solicitor is targeted by such an application. [2] [ 24 ] On December 20, 2005, Boyer, J.C.Q. granted the application, while adding that the conversations involving the appellant would be sealed and could not be listened to before he, or another judge if he was unavailable, had listened to them and ruled on their privileged nature.

Furthermore, without ordering live monitoring, the authorization nevertheless required that the conversations be monitored [ translation ] "regularly and within a reasonable time after their interception". [ 25 ] The police officers could henceforth intercept all conversations involving the appellant and Russel.

In accordance with the authorization, the conversations intercepted were sealed and regularly submitted to Boyer, J.C.Q. (or another judge) for a determination of whether they were privileged. [ 26 ] As a result of the seizures conducted on October 13 and 14, the criminal organization had run into some financial difficulties. It appears that it owed nearly $1 million to its cocaine suppliers, who had to be paid first if the organization was to continue its operations.

To do this, Russel and Dauphin had some land owned by Dauphin appraised to offer it as security for a loan that would be used to offset the losses and repay the suppliers. [ 27 ] At trial, the appellant confirmed that he had been asked by Russel and Dauphin to draft the documents required to obtain this loan, although he claimed that he refused to do so because he knew the ins and outs of the deal.

The trial judge rejected his version because the conversations intercepted between January and March of 2006 indicated that he had actively participated in obtaining the documents, even if he did not personally prepare them. [ 28 ] On February 25, 2006, the appellant sought to have the evidence gathered from the wiretap excluded pursuant to sections 7 , 8 , and 24(2) of the Canadian Charter of Rights and Freedoms (the " Charter "). [ 29 ] The trial judge dismissed the motion.

In his view, the procedure followed by police officers and the prosecution to handle the appellant's communications did not violate the provisions of

Part VI of the Criminal Code . In any event, even if the interceptions were illegal and contrary to

section 8 of the Charter , he would not have excluded the evidence under subsection 24(2) . [ 30 ] That being so, on the basis of the wiretap evidence and the physical surveillance, the judge concluded that there was a very close relationship between the appellant, Dauphin, and Russel.

He accepted the essence of the prosecution's theory that the appellant acted as middleman between these two individuals, organized their meetings in his home, or otherwise facilitated and participated in their illegal acts to help further the conspiracy. [ 31 ] The judge rejected the appellant's version of the facts, which he characterized as false, especially when the appellant claimed to be unaware of Russel and Dauphin's involvement in criminal activities and to have been associated, in spite of himself and through an unfortunate combination of circumstances, with a criminal conspiracy.

ADMISSIBILITY OF WIRETAP EVIDENCE Applicable law and trial judgment [ 32 ] The main legislative provisions relevant to the analysis of this question are:

183. Les définitions qui suivent s'appliquent à la présente loi. ... « avocat » Dans la province de Québec, un avocat ou un notaire et, dans les autres provinces, un barrister ou un solicitor . « communication privée » Communication orale ou télécommunication dont l’auteur se trouve au Canada, ou destinée par celui-ci à une personne qui s’y trouve, et qui est faite dans des circonstances telles que son auteur peut raisonnablement s’attendre à ce qu’elle ne soit pas interceptée par un tiers.

La présente définition vise également la communication radiotéléphonique traitée électroniquement ou autrement en vue d’empêcher sa réception en clair par une personne autre que celle à laquelle son auteur la destine. ... « intercepter » S’entend notamment du fait d’écouter, d’enregistrer ou de prendre volontairement connaissance d’une communication ou de sa substance, son sens ou son objet. 183.

In this Part, ... “intercept” includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof; ... “private communication” means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it; ... “solicitor” means, in the Province of Quebec, an advocate or a notary and, in any other province, a barrister or solicitor. 185.

(1) Pour l’obtention d’une autorisation visée à l’article 186, une demande est présentée ex parte et par écrit à un juge d’une cour supérieure de juridiction criminelle, ou à un juge au sens de l’article 552, et est signée par le procureur général de la province ou par le ministre de la Sécurité publique et de la Protection civile ou par un mandataire spécialement désigné par écrit pour l’application du présent

article par : ... il doit y être joint un affidavit d’un agent de la paix ou d’un fonctionnaire public pouvant être fait sur la foi de renseignements tenus pour véridiques et indiquant ce qui suit : ...

c) les faits sur lesquels le déclarant se fonde pour justifier qu’à son avis il y a lieu d’accorder une autorisation, ainsi que les détails relatifs à l’infraction;

d) le genre de communication privée que l’on se propose d’intercepter;

e) les noms, adresses et professions, s’ils sont connus, de toutes les personnes dont les communications privées devraient être interceptées du fait qu’on a des motifs raisonnables de croire que cette interception pourra être utile à l’enquête relative à l’infraction et une description générale de la nature et de la situation du lieu, s’il est connu, où l’on se propose d’intercepter des communications privées et une description générale de la façon dont on se propose de procéder à cette interception; 185.

(1) An application for an authorization to be given under

section 186 shall be made ex parte and in writing to a judge of a superior court of criminal jurisdiction or a judge as defined in

section 552 and shall be signed by the Attorney General of the province in which the application is made or the Minister of Public Safety and Emergency Preparedness or an agent specially designated in writing for the purposes of this

section by ... and shall be accompanied by an affidavit, which may be sworn on the information and belief of a peace officer or public officer deposing to the following matters: (

c) the facts relied on to justify the belief that an authorization should be given together with particulars of the offence, (

d) the type of private communication proposed to be intercepted, (

e) the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence, a general description of the nature and location of the place, if known, at which private communications are proposed to be intercepted and a general description of the manner of interception proposed to be used,

(1) Une autorisation visée au présent

article peut être donnée si le juge auquel la demande est présentée est convaincu que :

a) d’une part, l’octroi de cette autorisation servirait au mieux l’administration de la justice;

b) d’autre part, d’autres méthodes d’enquête ont été essayées et ont échoué, ou ont peu de chance de succès, ou que l’urgence de l’affaire est telle qu’il ne serait pas pratique de mener l’enquête relative à l’infraction en n’utilisant que les autres méthodes d’enquête. ...

(2) Le juge auquel est faite une demande d’autorisation en vue d’intercepter des communications privées au bureau ou à la résidence d’un avocat, ou à tout autre endroit qui sert ordinairement à l’avocat ou à d’autres avocats pour la tenue de consultations avec des clients, doit refuser de l’accorder à moins qu’il ne soit convaincu qu’il existe des motifs raisonnables de croire que l’avocat, un autre avocat qui exerce le droit avec lui, un de ses employés, un employé de cet autre avocat ou une personne qui habite sa résidence a participé à une infraction ou s’apprête à le faire.

(3) Le juge qui accorde l’autorisation d’intercepter des communications privées à un endroit décrit au paragraphe (2) doit y inclure les modalités qu’il estime opportunes pour protéger les communications sous le sceau du secret professionnel entre l’avocat et son client.

(4) Une autorisation doit :

a) indiquer l’infraction relativement à laquelle des communications privées pourront être interceptées;

b) indiquer le genre de communication privée qui pourra être interceptée;

c) indiquer, si elle est connue, l’identité des personnes dont les communications privées doivent être interceptées et donner une description générale du lieu où les communications privées pourront être interceptées, s’il est possible de donner une description générale de ce lieu, et une description générale de la façon dont les communications pourront être interceptées;

d) énoncer les modalités que le juge estime opportunes dans l’intérêt public;

e) être valide pour la période maximale de soixante jours qui y est indiquée. 186.

(1) An authorization under this

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

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

b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures. ...

(2) No authorization may be given to intercept a private communication at the office or residence of a solicitor, or at any other place ordinarily used by a solicitor and by other solicitors for the purpose of consultation with clients, unless the judge to whom the application is made is satisfied that there are reasonable grounds to believe that the solicitor, any other solicitor practising with him, any person employed by him or any other such solicitor or a member of the solicitor’s household has been or is about to become a party to an offence.

(3) Where an authorization is given in relation to the interception of private communications at a place described in subsection (2), the judge by whom the authorization is given shall include therein such terms and conditions as he considers advisable to protect privileged communications between solicitors and clients.

(4) An authorization shall (

a) state the offence in respect of which private communications may be intercepted; (

b) state the type of private communication that may be intercepted; (

c) state the identity of the persons, if known, whose private communications are to be intercepted, generally describe the place at which private communications may be intercepted, if a general description of that place can be given, and generally describe the manner of interception that may be used; (

d) contain such terms and conditions as the judge considers advisable in the public interest; and (

e) be valid for the period, not exceeding sixty days, set out therein. 189. ...

(6) Tout renseignement obtenu par une interception et pour lequel, si ce n’était l’interception, il y aurait eu exemption de communication, demeure couvert par cette exemption et n’est pas admissible en preuve sans le consentement de la personne jouissant de l’exemption. 189. ...

(6) Any information obtained by an interception that, but for the interception, would have been privileged remains privileged and inadmissible as evidence without the consent of the person enjoying the privilege.

[33] It is established that under subsection 24(2) of the Charter, the appellant has the burden of proving that his rights were violatedand that there was cause to exclude the evidence thus obtained. [34] In his motion, the appellant sought to have the orders made by Garneau and Boyer, JJ.C.Q. quashed and the 48 conversationsthat were deemed not to be privileged excluded. He argued that the police officers illegally intercepted his conversations because theydid not present the application in accordance with subsections 186(2) and (3) Cr. C.

Failure to comply with these requirementsautomatically results in the illegality of the operation. Furthermore, Garneau and Boyer, JJ.C.Q. did not have jurisdiction to listen to hisconversations, determine their privileged nature, and retroactively validate the illegal interceptions. [35] He also impugned the legality of Directive 015-654-02-03, which was adopted without legal authorization and which, in hisview, fails to adequately protect professional secrecy and solicitor/client privilege because a police officer can nevertheless listen to theconversation since it is pre-recorded and later monitored.

He also argued the illegality of the wiretap applications on the ground that theyhad not received the prior authorization of the Attorney General in accordance with the internal procedure of the prosecutor's office. [36] Finally, he contested the prosecution's argument that the interceptions were involuntary, within the meaning of R. v. Robillard, (QC CA), [2001] R.J.Q. 1; J.E. 2001-20 (C.A.) (reasons of Proulx, J.A.).

The police officers were perfectly aware thatthe communications involved a solicitor and therefore acted voluntarily and knowingly. [37] At the outset, the trial judge recognized the importance of protecting the professional secrecy that surrounds communicationsbetween a client and his solicitor, which must be beyond the reach of third parties because of their confidentiality and the privilegeconferred upon them.

This is, the judge noted, a well-established principle that [translation] "knows only a few exceptions, which arelimited, clearly defined, and strictly enforced". [38] He pointed out that when solicitors' offices are searched, for example, the Barreau's involvement ensures that the rights ofclients will be protected. Moreover, quoting R v. Robillard, supra, he said that the Court of Appeal had addressed the issue of thewiretapping of a solicitor's conversations. He then referred to the reasons of Beauregard and Proulx, JJ.A., and distinguished the facts ofthat case from those here.

I shall return to this subject. [39] He also added that the internal procedure of the prosecutor's office had been amended on November 9, 2005. Prior to that date,the Attorney General's personal prior authorization was required before a wiretap application targeting a solicitor could be presented. Asof November of 2005, the prior authorization of the Deputy Attorney General was enough. At the time of the application in July of 2005,the appellant was not a known person within the meaning of R v.

Chesson, (SCC), [1988] 2 S.C.R. 148, and theAttorney General's authorization was not required because the appellant was not a target. For the December 2005 request, the DeputyAttorney General's authorization was sufficient. Furthermore, because the appellant was not a target of the July application, it was notnecessary to initiate the requirements under subsections 186(2) and (3) Cr. C.

It was not an "authorization ... to intercept a privatecommunication at the office or residence of a solicitor", as provided by subsection 186(2). [40] The judge did not, however, directly answer another of the appellant's arguments, namely: since the word "intercept" is definedas the act of recording or listening to a conversation, the applications presented to the two judges to determine the privileged nature ofthe conversations are also requests to intercept because they intend to allow the conversations to be listened to, and the decisions aretherefore retroactive authorizations.

The law, however, does not allow an illegal interception to be thus retroactively validated.Furthermore, conversations are intercepted as soon as they are recorded. Because they were illegally recorded, the subsequent rulingcould not make the interception legal. That is, however, exactly what the judges did. With respect for the appellant, I find that thisargument cannot succeed, as we shall see below. [41] The judge deemed that the letter and spirit of the law had been respected. The confidentiality and privilege arising therefrom arenot absolute and do not protect solicitors from interception of any kind.

In other words, the status of solicitor in itself does not preventauthorities from intercepting communications and then accessing them. Everything then becomes a question of balance. The result ofDirective 015-654-02-03, which is consistent with Robillard, supra, is that professional secrecy is protected, as is the privilege arisingtherefrom, unless a judicial authority is of the view that the conversation is not protected by secrecy. In this case, live monitoring was notmandatory, so police officers noticed only later that conversations involving a solicitor had been recorded.

Consequently, theinterceptions were not voluntary, within the meaning given to this adjective by Proulx, J.A. in Robillard, supra.

Proulx, J.A. recognizedthe possibility that, in the event of involuntary interception, a judge may be asked subsequently to rule on the issue of privilege. [42] The judge therefore found that the interceptions were made [translation] "lawfully by ensuring that professional secrecyreceived maximum protection" and that [translation] "the agents of the State and the judges used the same methods that a judge wouldestablish in accordance with subsection 186(3) to protect communications sealed by professional secrecy".

Consequently, the appellant'sCharter rights were not violated, which concludes the analysis under subsection 24(2) of the Charter.

Analysis [43] The situation is therefore as follows: the appellant's communications were intercepted between July 13 and December 20 notbecause police officers had grounds to believe that he was involved in a criminal offence but because he was in communication with aperson who was duly targeted by a valid wiretap authorization with a basket clause (that is, a clause authorizing the interception of callsmade by any unknown individual communicating with one of the persons targeted by the authorization or in a given location). Accordingto R v.

Chesson, supra, persons are unknown within the meaning of this clause even if police officers know of them, if there are noreasonable grounds to believe that intercepting their conversations could be useful to the investigation.

This was the appellant's case ashe was not targeted by the investigation and was not a suspect, and police officers did not want to intercept his communications; in short,he was an unknown whose communications could be intercepted pursuant to the basket clause if he communicated with one of theindividuals targeted by the authorization. [44] Moreover, the application for authorization was not presented to "intercept a private communication at the office or residence ofa solicitor, or at any other place ordinarily used by a solicitor and by other solicitors for the purpose of consultation with clients" as

provided under subsection 186(2) Cr. C., so the requirements of that paragraph did not apply. [45] In addition, as of December 20, the new authorization specifically provided for the interception of the appellant'scommunications since, according to the agent's sworn statement, he was no longer an unknown, being now connected to the commissionof offences. The authorization, which allowed the interception of communications at his residence and in his motor vehicles sets out, incompliance with subsection 186(3) Cr.

C., a series of conditions to ensure that the interception will take place while respectingprofessional secrecy, conditions that overall are similar to those in Directive 015-654-02-03. [46] It also appears from the wording of subsection 186(2) Cr. C. that Parliament intended to limit its application to interceptions incertain specific places that are usually dedicated to consultations between solicitors and their clients. Considering the importance ofprofessional secrecy, it is normal that this would be the case insofar as the risk of violating professional secrecy is significantly higher inthese places.

It cannot be argued, however, that this subsection always applies, including when the solicitor is not even the subject of aninvestigation and his conversations are recorded solely because he communicated with a targeted person. [47] Nor can it be said that Directive 015-654-02-03 allows a procedure to be initiated to intercept the conversations of a solicitorwithout having to comply with the restrictive procedure set out in subsection 186(2) Cr. C. That would assign it a scope it does nothave.

The purpose of the directive, adopted in the wake of Robillard, supra, is merely to establish a procedure when a targeted personcommunicates with a solicitor (or vice-versa) when that solicitor was up to that point unknown within the meaning of Chesson, with aview to protecting a conversation that might be covered by professional secrecy.

In short, if the solicitor is not a target, hiscommunications will never be intercepted unless they are intercepted pursuant to a basket clause and, in that case, Directive 015-654-02-03 will compel authorities to keep the recordings sealed until a judge decides whether they are privileged.

In my view, this procedurecomplies with the rules protecting solicitor/client relationships. [48] Might it be argued, however, that as soon as a solicitor communicates with a targeted person from his or her office or residence,or a targeted person communicates with that solicitor at his or her office or residence, the communication is then deemed to have beenintercepted at the office or residence in question, such that subsection 186 (2) applies? In other words, does that provision seek to protectthe solicitor/client relationship, wherever it takes place, rather than the actual place of interception?

In my opinion, the wording of theprovision leaves no doubt: it is first and foremost the place that is covered by the protection measure. Obviously, this does not mean thatconversations between solicitor and client may not be otherwise protected under other rules. I am merely stating that subsection 186(2)Cr. C. sets out specific rules based on the place of interception. [49] In R. v. Taylor, [1997] B.C.J.

No. 346, upheld by the Supreme Court in (SCC), [1998] 1 S.C.R. 26, the Courtof Appeal of British Columbia answered the argument whereby an interception occurs in the solicitor's office as soon as the call is madefrom or to this office. In Taylor, as in this case (or at least before December 20), solicitor/client communications were interceptedpursuant to an authorization that targeted only the client. The solicitor was using his office telephone line at the time, and the trial judgefound that the interception had occurred at the office.

Because the authorization prohibited any form of interception at the residence oroffice of a solicitor, the judge found that the interception was illegal. Huddart, J.A., on behalf of the Court of Appeal, set aside thisdecision in the following terms: 11 The ground of appeal to which I would give effect is that the trial judge erred when he found that the interception was "atTaylor's office." 12 In R. v. Taillefer and Duguay (1995), (QC CA), 100 C.C.C. (3d) 1 at 27 (Que.

C.A.), the appellants arguedthat the interception of a phone call by one of them, from the police station cells to his father at their joint residence, was unlawfulbecause the police cells were not covered by the authorization. The Court of Appeal rejected that ground of appeal, saying: It seems to me that the appellants are here confusing the place where the call originates and the place of interception having regard to theplace authorized for the interception.

The appellant Duguay erroneously argues that the police cells are the place of the interceptionwhereas the evidence clearly demonstrates that the conversation was intercepted at his residence, a place specifically covered by theauthorization. The same reasoning applies here. I would adopt it. 13 In reaching this conclusion I have had regard to the thorough submissions of counsel for the respondent seeking a purposiveinterpretation of the word "at" in

section 186 and paragraph [n] of the authorization to guarantee privacy to a person's communicationwith a solicitor, unless the infringement of privacy has been permitted by a designated person under

section 186. 14 Counsel began his submissions by saying that "at" should be interpreted to protect the principle underlying solicitor/clientprivilege rather than a person or a place. 15 Assuming for the moment that solicitor/client privilege requires such protection and that all of

section 186 can bear aninterpretation of the word "at", that would include the location of both the originator and recipient of a communication, the practicalimplications of this argument are significant, even if the extended

interpretation of the word "at" is applied only to places were solicitorsmight receive calls. 16 If this Court were to accept the

interpretation counsel seeks to have us put on

section 186, counsel agrees that live monitoring ofall interceptions would be required and that any conversation by anyone with a lawyer would be required to be terminated automaticallyupon the solicitor's phone being answered. One consequence of such a policy would be that solicitors would have protection of theirprivacy far exceeding that available to the ordinary citizen, whether or not there was any realistic possibility that the interception wouldinfringe solicitor/client privilege. They would have such protection not only at their offices but also in their homes and anywhere elsethey might answer a phone.

The respondent considers the incidental benefit to lawyers to be a reasonable price to pay to ensure thesanctity of solicitor/client communications. ...

18 However, live monitoring of all interceptions is a necessary incident of the remedy sought. Live monitoring of all interceptionsasks too much of Canadian law enforcement officers, as Mr. Justice Sopinka, writing for the majority, pointed out in R. v. Thompson (SCC), [1990] 2 S.C.R. 1111 at 1137 and 1138 and R. v.

Garafoli (SCC), [1990] 2 S.C.R. 1421 at 1468.This consideration provides added reason for adopting the reasoning of the Court of Appeal of Quebec in Taillefer, supra. [50] It goes without saying, as Huddart J.A. states, that live monitoring would be necessary if every conversation with a solicitor,even one who was unknown to the investigation, was covered by subsection 186(2) Cr. C. Indeed, the equipment that records a target'sconversations according to the places and telephone numbers given in the authorization cannot identify all the telephones that a solicitoris likely to use to communicate with a target.

That is not what the law requires, however, especially since if it were, any conversationsheld by an unknown solicitor would be protected, wherever they took place, thereby conferring upon the solicitor a right that no othercitizen has. It is not the solicitor's rights that are protected, but those of the client who benefits from the protection of professionalsecrecy. Finally, this practice would be incompatible with even a minimum degree of effectiveness and the rational use of resources. [51] In R. v.

Martin, [2010] NBCA 41, a case where the communication of a solicitor with a person who was in a targeted place wasintercepted, the New Brunswick Court of Appeal recalled that Taylor sets out the state of the law on the issue: Richard J. wrote: 52 Taylor sets out the state of the law on the location of the interception. Applied to the present case, it is clear that the interceptionwas made at the Wedge residence and not at Mr. Martin's home. The interception was of a conversation between an unknown person(Mr. Martin) and another unknown person (Ms.

Wedge) at premises specifically named in the authorization and, in my view, it was aninterception that fell squarely within the ambit of the basket clause. [52] R v. Nguyen, 2004 BCSC 237, addressed the issue of a call to a solicitor's office made from a mobile telephone number that wastargeted by an authorization. As in Taylor, the authorization included a clause that prohibited the interception of any communication atthe residence or office of a solicitor.

Halfyard, J., of the Supreme Court of British Columbia, stated: 16 With respect to the interception of the telephone conversation between Thanh Van Nguyen and Mr. O'Byrne, it is my opinion thatthe initial interception of that call was permitted by the authorization which itself was in almost identical terms to s. 186(2) of theCriminal Code. The interception was made from the wiretap on Thanh Van Nguyen's cell phone number [...] and in that sense was notmade at Mr. O'Byrne's office. 17 In part, I rely on the reasoning of Madam Justice Huddart in the case of R. v.

Taylor (1998), (SCC), 121 C.C.C.(3d) 353, and those reasons were adopted in the judgment of the Supreme Court of Canada. [53] More recently, in R v. Mastop, 2012 BCSC 2085, the Supreme Court of British Columbia once again recalled the teaching ofTaylor, this time in the words of Dickson J.: 49 As outlined above, s. 186(2) applies to authorizations to intercept private communications at the office or residence of a solicitor.This includes all places where a solicitor carries on business, which includes his or her mobile phone: R. v. Blais (2004), (ON CA), 182 C.C.C. (3d) 39 (CA). 50 In R. v.

Taylor (1997), 86 B.C.A.C. 224, aff'd (1993), (SCC), 121 C.C.C. (3d) 353, the Court of Appealconsidered the admissibility of a telephone call between a solicitor and client intercepted pursuant to an authorization to intercept theclient's private communications over his telephone. The court concluded that the interception was not located at the lawyer's office andrejected the proposition that s. 186 requires interception of all communications between solicitors and their clients to be pre-authorized inorder to protect the needs of solicitor/client privilege.

In consequence, the intercepted communication was admitted into evidence at acriminal prosecution that was conducted against the solicitor. [54] In short, in this case, the interception of the appellant's communications was authorized by the basket clause included in the July13, 2005, authorization, and subsection 186(2) Cr. C. does not apply. [55] The appellant cites R v.

Robillard, supra, to argue that Directive 015-654-02-03 does not comply with the teachings of thatjudgment on the grounds that Proulx, J. contemplated the sealing of the interception and the intervention of a judge when the interceptionwas involuntary. In this case, however, he argues that the interceptions were not involuntary and must therefore be deemed to be illegal. [56] To understand the meaning of that judgment, it is necessary to review some aspects of it. [57] First, Deschamps, J.A. agreed with the reasons of Beauregard and Proulx, JJ.A., who both concluded that the prosecution'sappeal should be allowed.

In his reasons, Beauregard, J.A. made a point of explaining the following: [translation] [9] I will not decide whether, in light of the special provisions that apply when telephone communications are intercepted at the office orresidence of a solicitor (s. 186(2)), the police may legally continue to intercept a communication made by a client to his or her solicitoronce they realize that the client's caller is a solicitor. [58] That is a significant caveat, which was approved by Deschamps, J.A. [59] Moreover, it should also be noted that in that case, the prosecution argued that the police should be allowed to listen to theconversations themselves to determine whether they were privileged.

This was the specific argument that Proulx J.A. wished to refute inhis reasons: [translation] [26] I have read the opinion of Beauregard J.A. and rely on his statement of the facts and law. While I agree with his conclusion that the

trial judgment is without merit, basically on the grounds that the violation of professional secrecy is of no consequence in this case, I nevertheless find it necessary to address a specific issue that this appeal raises.

Indeed, given counsel for the appellant's submission, noted by my colleague in paragraph [10] [3] of his reasons, I fear that allowing the appeal without expanding on the consequences of this submission would mean that other cases where professional secrecy is violated will not be eliminated. [Emphasis added.] [ 60 ] That is why he later writes: [ translation ] [36] Both this opinion on many levels and the theory defended by counsel for the appellant before this Court are at the very least astonishing: his argument is that every communication that is not covered by privilege can be intercepted and it is therefore be advisable to intercept them all and let police officers and their legal counsel ultimately decide whether privilege applies. [37] As I initially indicated, this submission confuses professional secrecy and privilege, and perhaps even the rule of evidence and the substantive rule.

Police officers who intercept a telephone conversation between a client and a solicitor who, as in this case, is not the target and at whose home or office the interception is not authorized, cannot arrogate to themselves a right that the law does not confer upon them to verify whether this communication might contain remarks that could be disclosed before a court because they constitute an exception to privilege. [Emphasis added.] [ 61 ] That is the core of his reasons.

Considering a situation analogous to ours, Proulx J.A. found that police officers could not personally verify whether or not a conversation was protected by professional secrecy or covered by privilege. He went on to add: [ translation ] [38 ] It is tantamount to arguing that Parliament authorized police officers who wish to seize documents in the possession of a solicitor were authorized to read them and then let their counsel decide whether privilege could be argued. In the current state of the law, it is up to the court to decide this issue once the seized documents have been sealed (subsection 488.1(4) Cr.

C. ). ... ... [47] ... I find it distasteful that a system could have been set up here that would authorize police officers to [ translation ] "listen to the entire conversation" to determine whether communications are privileged. [48] ...

In fact, it was established at trial that the four persons whose job it was to monitor listened to all the conversations that were admitted to be confidential, which shows systematic monitoring of that which should not be monitored. ... [ 62 ] The procedure referred to by Proulx J.A. (sealing and letting a judge subsequently decide) necessarily arises from this context. [ 63 ] Some might read other paragraphs from his reasons as an absolute prohibition on intercepting the communications of an unknown solicitor unless the requirements of subsection 186(2) Cr.

C. have been met, even when the communications are not intercepted at his or her office or residence. In my opinion, this cannot be the case. First, this would contradict the teachings of Taylor , supra , upheld by the Supreme Court. Second, it would contradict the very wording of subsection 186(2) Cr.

C . [ 64 ] Now, what meaning should be given to the words [ translation ] "conversations intercepted involuntarily" used by Proulx, J.A., conversations that, to his view, should not be monitored and should be sealed, adding that it [ translation ] "would not be unthinkable to hand them over to the authorizing judge to be ruled upon later, should a dispute arise"? [ 65 ] For the appellant, they do not refer to the communications that are at issue here because those were voluntarily intercepted.

For the respondent, the interceptions in this case were involuntary because they occurred without any knowledge of the fact that the conversations involved a solicitor. [ 66 ] Whatever meaning Proulx, J.A. intended to give them, it appears that, in this case, the interceptions were involuntary in that the recordings took place without the police officers knowing that they involved a solicitor. It might therefore be said that they were involuntary, that is, that the police officers did not intend to intercept the communications of a solicitor.

Moreover, as soon as the police officers realized what they were, they were sealed without being monitored, and the opinion of a judge was sought. This procedure, based on Directive 015-654-02-03, appears to be perfectly acceptable. First, it protects professional secrecy and the right to the confidentiality of communications because the police officers block access to them and seal them as soon as they observe that a solicitor is involved, without any further monitoring and without disclosing the content to anybody.

Second, it takes into account the related privilege in the context of legal proceedings by providing for the participation of a judge to determine if they may be disclosed because they do not implicate professional secrecy. In fact, this issue of privilege has nothing to do with the legality of the interception since a communication that is legally intercepted may be covered by privilege while an illegally intercepted communication may not be. [ 67 ] Furthermore, as Abella J. points out in R v.

Société TELUS Communications , [2013] 2 S.C.R. 3, 2013 SCC 16 , a basic knowledge of the content of the communication is required for there to truly be interception: [36] The

interpretation of “intercept a private communication” must, therefore, focus on the acquisition of informational content and the individual’s expectation of privacy at the time the communication was made. In my view, to the extent that there may be any temporal element inherent in the technical meaning of intercept, it should not trump Parliament’s intention in

Part VI to protect an individual’s

right to privacy in his or her communications. [ 68 ] I am therefore of the view that the communications were legally intercepted and that the conduct of the police officers and the prosecution was reasonable, and that consequently neither the appellant's

section 7 Charter rights nor his

section 8 Charter rights were violated. [ 69 ] One question remains: what of the conversations intercepted between October 13 and December 20, 2005, the date of the second authorization? Were they legally intercepted? Did their interception breach the appellant's rights? [ 70 ] On October 13, the police officers acquired reasonable grounds to believe that the appellant was involved. A new application for authorization was immediately considered because the appellant had become known and it was now necessary to include him in the group of individuals who were targeted by name in the wiretap authorization.

The new application was presented on December 19. Did this delay have an impact on the legality of the interceptions that occurred in the meantime or on the decision to exclude them pursuant to subsection 24(2) of the Charter ? [ 71 ] Six conversations in which the appellant was involved are at issue. Boyer, J. found that three of them were not covered by privilege. These are the conversations held on October 13 (Alain Dauphin's mobile telephone), October 20 (Dauphin's spouse's mobile telephone) and November 19 (Dauphin's residential telephone line).

The three others – one on October 14 (Dauphin's spouse's mobile telephone) and two on November 15 (Dauphin's residential telephone line) – were deemed to be privileged. [ 72 ] In light of the legal and clerical work involved, the authorities are obviously not expected to draft and present a new application with the supporting documents in the hours or days following the moment they acquire reasonable grounds to believe in the appellant's involvement. They should not be faulted for the interceptions that took place on October 13, 14 and 20.

Thus, they were just as legal as the previous ones and did not infringe the appellant's rights. [ 73 ] Let us now consider the three that took place on November 15 and 19. [ 74 ] Even if it were found that the interception was illegal because the appellant was at that point known and the requirements of subsection 186(2) Cr. C. should have been complied with, and that his rights were breached, the analysis under subsection 24(2) of the Charter would nevertheless need to continue.

While a lengthy analysis of the situation is not in order, it must be noted that the tests established to exclude evidence have not been met. [ 75 ] If the appellant's rights have been violated, that violation is minor and without any real incidence insofar as only one conversation was deemed not to be privileged (that of November 19) and the police officers did not have access to this conversation or listen to it before they were authorized to do so by a judge. Thus, the seriousness of the Charter -infringing state conduct has not been established.

Similarly, because there was no monitoring prior to the judge's decision, there was no real breach of confidentiality, save a technical breach resulting from the automated recording of communications between the appellant and Dauphin. Furthermore, this single conversation is of little interest and its exclusion would have had no impact on the verdict. The impact of the violation on the appellant's rights is thus minimal. Finally, it seems obvious that society has an interest in seeing the matter judged on its merits. [ 76 ] For all these reasons, I find that this ground of appeal must fail.

IS THE VERDICT BASED ON THE EVIDENCE? [ 77 ] The judgment is meticulous. It is over 40 pages long. In it, the judge conducted an in-depth analysis of the evidence and rejected the appellant's testimony, which did not raise any reasonable doubt in his mind, before concluding that the prosecution had met its burden of proof.

The appellant's testimony [ 78 ] In his argument, the appellant describes the evidence according to the version he gave, even though this version was rejected and he does not show that the judge committed a determinative error in drawing this conclusion. [ 79 ] The judge gave three main reasons to reject the appellant's testimony:

(1) The appellant contends that he did not meet Russel until early July (during one of the two first weekends) and that he introduced him to Dauphin some time around July 15, which allows him to more easily argue that he was unaware of their criminal activity. According to the circumstantial evidence, however, a large transaction took place between Dauphin and Russel around July 20.

It is unlikely that this transaction could have taken place so quickly after their first meeting; it would require that, at this first meeting, Dauphin and Russel discussed their inclination to traffic in cocaine and the possibility of doing business together, that they made a deal, and that the deal came to fruition in less than five days, all without the appellant's involvement. This seems rather implausible. Furthermore, the very content of the conversations intercepted at the time between Dauphin and Russel is inconsistent with a recent introduction.

In short, the circumstantial evidence establishes that Dauphin and Russel knew each other well before the date indicated by the appellant, even though a recent introduction is the cornerstone of his theory.

(2) The care shown by the appellant, the pains he took to use [ translation ] "cryptic" language, and some of the words employed when speaking with Dauphin led the judge to believe that he knew the nature of Dauphin's criminal activities. Moreover, and in spite of the explanation offered by the appellant, the judge saw the expression he used during the September 6, 2005, conversation ([ translation ] "I'll set him straight, because that's not how things are done") with Dauphin, who was complaining of Russel's conduct, as proof of the

appellant's authority.

(3) Despite the appellant's assertions, he never indicated his intention not to assist Dauphin and Russel in obtaining the documents required to secure the $1 million loan. On the contrary, a conversation between Dauphin and Russel in January of 2006 and another between the appellant and Russel in March of 2006 establish the appellant's help and his desire to settle everything to their satisfaction. [ 80 ] These factual observations by the trial judge explain and support his conclusion, whereas the appellant has not shown any palpable and overriding error to justify the Court's intervention.

Evidence of the prosecution [ 81 ] The proof of a conspiracy and trafficking in cocaine for the benefit of or under the direction of or in association with a criminal organization is clear and undisputed. The many telephone conversations between the various protagonists (including Dauphin, Russel, Venneri, Blais, Toledano and Gauthier), the physical surveillance, and the seizures establish beyond any reasonable doubt the existence of a conspiracy. Only the appellant's involvement, or lack thereof, need now be determined. [ 82 ] Obviously, the various conversations should not be considered individually.

They only make sense when interpreted against the backdrop of all the evidence. Similarly, the use of vague and abstruse language makes them difficult to understand without having all the evidence, and the trial judge is undoubtedly better placed than the Court of Appeal to do so. [ 83 ] As the judge pointed out, Dauphin, Russel, and the appellant never actually name places or persons. They speak of [ translation ] "the other”, "my friend", "my buddy", "the house", "the office", and so on.

For this reason, the conversations may appear insignificant, but they are so severely guarded that they may legitimately cause a judge to question them. [ 84 ] It goes without saying that, before being able to use the overt acts of the co-conspirators against the appellant, it would first be necessary to ensure that admissible direct evidence against him demonstrated the likelihood of his involvement in the conspiracy.

The judge took pains to point this out, and I do not intend to make this distinction by repeating the evidence that demonstrates that the judgment is reasonable and based on the evidence. [ 85 ] The judge convicted the appellant because of his involvement in the offences, which was proved by the wiretap and the surveillance. What follows is an overview of the evidence the judge considered. [ 86 ] On July 20, 2005, Dauphin and Russel communicated with each other and agreed to meet at "my house" (Russel's house).

Considering that he did not have a residence in the Montreal area and that he was staying with the appellant at the time, "my house" can only mean the appellant's residence. This expression will subsequently be used on several occasions to designate the appellant's residence. Also, during this conversation, Dauphin asked Russel: “You are going to bring the shopping right?” [ 87 ] On July 29, Dauphin and Russel agreed to meet "at the office". They did the same on other occasions, including on August 8.

Communications from August 23, some between Dauphin and Russel and others between the appellant and Dauphin, show that this expression also refers to the appellant's residence. This is also supported by the physical surveillance of October 6. [ 88 ] On August 23, during a telephone conversation between Russel and Dauphin, the latter was surprised to find out that the former was not in town. Russel was in turn surprised that "his friend" had not let him know, which he had been supposed to do. He suggested that he call this "friend" and Dauphin answered that he was going "to the office".

In the next minute, Dauphin communicated with the appellant to tell him he was going to see him. This leads to two conclusions: (1) often, when Dauphin and Russel referred to their "friend", they were referring to the appellant and (2) the expression "office" refers to the appellant's residence. Why not refer to persons by their name and identify places clearly? And why was the appellant keeping Dauphin appraised of Russel's comings and goings?

A picture of the appellant as middleman is emerging. [ 89 ] For example, on August 17, Dauphin telephoned the appellant to find out whether [ translation ] "their friend" was in town. Once again, no names, but we know that they were referring to Russel. The appellant answered that he should be arriving at supper time and Dauphin ended the conversation by saying that he would [ translation ] "see you tonight". A few hours later, clearly without any news of Russel's arrival, Dauphin called the appellant back.

In a very suspicious conversation, Dauphin asked if [ translation ] "whatshisface" was there and was irritated by his absence because [ translation ] "the other" had to leave the next morning. The appellant answered that he understood and asked him to be patient because it was still early. [ 90 ] This conversation does not fit with the appellant's contention that he knew nothing of the relationship between Dauphin and Russel and that he had no reason to suspect them of anything whatsoever. [ 91 ] In the same vein, another conversation between Dauphin and the appellant on September 1 is noteworthy.

At 9:41 a.m., Dauphin telephoned the appellant to tell him that he was going to meet his [ translation ] "buddy" who was returning from Africa at a hotel near the Dorval airport. A reading of earlier communications reveals that this [ translation ] "buddy" was a so-called Jean-Claude Tremblay, whom Dauphin introduced to Russel on July 29 to organize a flight between Kelowna, British Columbia, where the cocaine was coming from, and Montreal. Other conversations intercepted the night before show that Dauphin and Tremblay arranged to meet in a room of this hotel.

The appellant appears to know who this [ translation ] "buddy" is, indicating to Dauphin that he [ translation ] "still had visitors" and that it would be preferable if he dropped by after "Dorval" and that he would [ translation ] "tell" him. [ 92 ] At 11 a.m., Dauphin and Russel arrived at the hotel, went to the room and left the premises some thirty minutes later. Around 1 p.m., they went into the appellant's residence where his car was parked.

At 1:30 p.m., the appellant left his residence, got into his vehicle and returned around 3:15 p.m., carrying large bags. [ 93 ] On September 5, Russel was still at the appellant's residence ("I'm at the house"), and he went to meet Dauphin "for poutine",

an expression often used by the two men to plan a meeting, so often in fact that the judge wrote that it [ translation ] "clearly and without the shadow of a doubt is the term they use to identify the narcotics that are about to be received". Dauphin then drove him back to the appellant's residence. Russel had forgotten his keys, however, and was locked out. The two associates contacted the appellant, who could not come back home to let him in. He apologized and asked Dauphin to take Russel back to the hotel. [ 94 ] This incident, which appears innocuous, is of some significance.

It confirms that "the house" is really and truly the appellant's residence. Furthermore, the appellant used to incident to explain the particular remarks he made the following day during a telephone conversation with Dauphin, and especially when he said [ translation ] "I'll set him straight". [ 95 ] On September 6, Dauphin telephoned the appellant to find out if [ translation ] "he" (Russel) was with him because [ translation ] "he" had been supposed to call him at 4 p.m.

The appellant answered, telling him to [ translation ] "take it easy”, that he had spoken with Russel and that he [ translation ] "was a bit off these days". Dauphin was displeased because he had [ translation ] "come to town" to meet with him. The appellant told Dauphin not to worry about it, then added, [ translation ] "I'll talk to him, you know, I'll set him straight, because that's not how it works". [ 96 ] When asked to explain the meaning of his remarks under cross-examination, the appellant attempted a first answer.

He stated that he was annoyed by the fact that Russel often forgot his keys, sometimes left the front door unlocked, and invited strangers in, and had therefore decided to put an end to their arrangement. He had lost confidence in him. During the day of September 6, he therefore informed Russel of his concerns, adding that he would have to find another place to stay when he came to Montreal. Russel was in fact supposed to call him back on the subject.

He testified that when he spoke with Dauphin that evening, he was referring to this conversation when he said, [ translation ] "that's not how it works" and [ translation ] "I'll set him straight". [ 97 ] Counsel for the prosecution insisted and indicated that this explanation did not fit with the rest of the conversation since Dauphin was the one complaining of Russel's conduct and the appellant was responding to this.

Probably aware of the weakness of his explanation, the appellant had trouble regaining his footing and ended up admitting that the expression meant that he would remind Russel of the importance of honouring his meetings and commitments. This was an about-face that the judge could not ignore when assessing the appellant's credibility. [ 98 ] Then, on October 6, despite the previous incidents, Russel and Dauphin were once again at the appellant's residence. Dauphin contacted Russel at 12:16 p.m. to tell him that he would like to meet with him at his "office" around 3 p.m.

Russel called him back at 2:26 p.m. to confirm that they would meet at 3 p.m. The physical surveillance confirms that the meeting took place at the appellant's residence where Russel arrived first and unlocked the door before entering. Dauphin arrived a few minutes later and left the premises at 3:33 p.m. while Russel remained behind to wash his vehicle. [ 99 ] When properly analyzed, it appears from this evidence that the trial judge could correctly reject the appellant's submission that he knew nothing of the activities in which Dauphin and Russel were engaged before October 14, 2005.

On the contrary, it appears from this evidence that he was aware, perhaps as early as July if not earlier, and contributed to furthering the conspiracy and the trafficking in narcotics by authorizing their meetings at his residence, a safe place, and by facilitating contact between them. [ 100 ] Evidence of his involvement after the seizures of October 13 and 14, 2005, is also significant and revealing as to his role in this affair. [ 101 ] Claiming that he was surprised by the fact that Dauphin and Russel were involved in drug trafficking, the appellant asserts that he distanced himself from them (especially Russel), while nevertheless maintaining a professional relationship: [ translation ] "Afterwards, I treated them like clients", he claims.

This was allegedly the context in which Russel approached him in January of 2006 to get his professional opinion on the appraisal of some land to obtain a loan. The appellant claims that, when he noticed that the appraisal concerned land owned by Dauphin, he met with Russel to make him understand that he would not draft the documents necessary to secure this loan.

He allegedly told him that the preparation of such a document was a task for notaries, but he alleges that he refused to act in this file above all because of the document's intended use (i.e., to obtain a loan to reimburse the suppliers of the organization). Here is his testimony on the subject: [ translation ] A ... I never drafted that document. And there is, first, Your Honour, a question of skill there, it is a document, it required a notary, I explained that, first off, even if I wanted to as a lawyer I didn't do that type of thing, I knew the consideration. Q. What do you mean by that?

A Well, simply that I knew that the land was to secure, You Honour, with respect to the lost narcotics that had been seized, what I could, thought that I could not say yesterday. Q That was clear in your mind? A Clear as day. That is why I was telling you, I was never going to draft that document. And I knew the consideration. The document itself is not illegal, a legal document, things can be offered as security, there's nothing illegal in that, but if the consideration is illegal, you know, the process is tainted. So there was no way that I would get involved in their affairs. I got it, you know.

I had understood that I should steer clear of their affairs . To defend them in court, during an arrest, no problem there, Your Honour, the relationship had changed. [Emphasis added.] [ 102 ] The wiretap evidence contradicts his version. Contrary to his assertions, he did not steer clear of the affairs of Dauphin and Russel. Quite the opposite, in fact, as he found himself at the heart of their dealings in late January and early February of 2006. Let us consider.

[ 103 ] On January 22, Dauphin and Russel left the appellant a voice message: they wanted to speak with him about the appraisal. [ 104 ] On January 26, a conversation between the appellant and Russel was intercepted. Russel asked him if the person who had performed the appraisal had done it well, to which the appellant responded: “That’s all crap”. The appellant then told him that he would meet with the notary to follow up, to which Russel responded that the notary's document was essential: “What’s important is he just do the document from the notary, the way you and I discussed it”.

The "he" referred to was clearly Dauphin as it was his land that was concerned. The appellant told Russel that he would see what he could do and if he could talk to [ translation ] "him". The conversation then took an interesting turn in the circumstances: MR (Michael Russel): Yeah, well, you know, I gotta call the office. I gotta tell something. So you know, I told them Thursday Friday. I told them last week it was going to be last week. I’m starting to look like an idiot now. LP (Louis Pasquin): And if not, we’re going to have a nice chat together, you understand? MR: Yeah.

LP: So let me talk to that person, and we’ll see. ... MR: Yeah, ‘cause I gotta call the office. I gotta tell them something. I told them. I’m starting to look like a fool now. LP: I know, I know. No, no. [ 105 ] Subsequent conversations revealed that Russel was waiting for certain documents or information from Dauphin so that the documents required to secure the loan could be prepared. The appellant is clearly involved in the process.

He does not appear to be alarmed by the fact that the documents will be used for a transaction to satisfy "the office", an expression that this time refers to the organization's suppliers instead. [ 106 ] The following day, January 27, Russel called the appellant to inform him that he had talked to their "buddy" (Dauphin, as evidenced by a communication between him and Russel a few hours earlier) and that Dauphin would call him back to update him on the notary. He asked the appellant whether he had heard anything, to which the appellant responded that he would try to reach Dauphin.

Russel communicated his unease: “Because I gotta go up there and get this done. This is crazy. I’m starting to look like a nut case”. [ 107 ] On January 28, Russel once again contacted the appellant and told him that he had a copy of the appraisal for him. Russel then asked him to complete the "paperwork", to which the appellant responded "very good". They then returned to the subject of the notarized document: MR (Michael Russel): Yeah, my friend’s going to call me around 10:00. I’m going to go over and see him. He’s something with Francine tonight, I guess.

He’s got something he’s doing and fuck, he said, he finishes he’s all really tired. I don’t’ know what it is but anyway. So I’ll see him tomorrow. He’s going to call me around 10:00 or so, and then I’ll hook up with him and then hopefully. I think I have all the information with the appraisal thing that he needs in order to do the document, you know, because the guy included everything. I don’t think he needs much. LP (Louis Pasquin): No, he doesn’t need much. MR: Just a description, a legal description of the property, correct? LP: Exactly, the notary will take care of the rest.

MR: Yeah, ‘cause this notary is a guy that he uses all the time, It’s a friend. LP: Yeah he probably knows the land already. MR: Sure, he’s familiar with everything. By I don’t know why he couldn’t do it last week, fuck. I lost a whole week. I mean we all lost a whole week, put it that way. But I know he was busy. I know our guy was busy with other things. But he said that the notary was busy, he was out of town, I don’t know. Well anyway, tomorrow I’ll get on top of that, and that’s my mission. I have to complete this mission. LP: Okay.

So anyway, I’ll talk to you after. [ 108 ] Contrary to his expectations, Russel did not receive a communication from Dauphin on January 29. He did successfully reach him on January 30, however, and the tone of the conversation was not happy. Russel was displeased with Dauphin's inertia and he reiterated the importance of obtaining the notarized document.

Dauphin called Russel back and the latter told him to call the appellant so that he could draft the land description: MR (Michael Russel): Yes, but you know, we should have… we just need a description, you know, actually Louis, Louis can tell him what to do as well as far as… as far as doing the way legal. LAD (Louis-Alain Dauphin): Yes, yes. MR: Louis said to call him also and he would talk to the guy, talk to him and tell him how to word it. [ 109 ] Dauphin called the appellant about twenty minutes later to

schedule a meeting and asked him if he had received all the faxes.

[ 110 ] On January 31, the situation was not yet settled. Russel called the appellant and complained about Dauphin refusing to return his calls. The appellant told him that he understood and that he was in the same situation. The discussion then took a turn for the unexpected when Russel insinuated that Dauphin might be going behind their backs. His tone became menacing, which the appellant did not like at all as he attempted to call him down: MR (Michael Russel): I don’t know. I think he must be doing something. LP (Louis Pasquin): I don’t think so.

MR: Well, if he’s gonna, you know, he’s gotta get this done if he doesn’t, man! LP: Don’t even. MR: I know, I know. LP: Don’t even think about anything. Don’t even talk to me about that. MR: Yeah. LP: You’re wasting your time. MR: So, anyway, yup. Well, anyway, I gotta get the message to him, you know. LP: The best way, we just wait until he gets the messages. Everybody’s mixed up, you know. They got those phone, those pagers, and they don’t answer, you know. MR: Yeah, yeah. LP: Anyway, just be cool a bit, you know. I’ll try to see if he got the messages. And that’s it, you know.

After that, I’m going to see you tomorrow. [ 111 ] During cross-examination, the appellant was hard-pressed to explain the meaning of this conversation. He testified that Russel refused to understand that he would not prepare the documents. He was personally caught between two clients with differing views. [ 112 ] In of itself, this explanation is dubious and becomes unlikely when we consider the telephone conversations that took place of February 2 during which Dauphin called Russel at 11:05 a.m. to

schedule an appointment for early that afternoon. An hour later, Russel called the appellant to let him know. The appellant claimed to be relieved to finally hear from Dauphin: "I was afraid ... We did not have any answers", and he asked Russel to tell Dauphin to call him because he wanted to talk to him. Early that evening, Dauphin called the appellant who once again conveyed his relief at hearing from him. [ translation ] "you had us worried", he said.

These two conversations reveal the significance of the notarized documents for the appellant, who did not appear to be caught between two clients, and the use of the first person plural in both cases shows the concern that both the appellant and Russel were experiencing. [ 113 ] All these events, which occurred over about two weeks, do not fit with the version given by the appellant, who asserts that he decided to steer clear from the affairs of Dauphin and Russel.

On the contrary, he appears to have acted as a bridge between the two, to be at the centre of the discussions surrounding the preparation of the notarized documents even though he had known since October 14, 2005, that they are both drug traffickers. His role was in no way passive and, with the rest of the evidence, grounds an inference that he was involved in the conspiracy and the cocaine trafficking. The charge of possession of substances for the purposes of trafficking (count 4). [ 114 ] Finally, in light of R v.

Venneri , [2012] 2 S.C.R. 211, 2012 SCC 33 , the respondent was correct to submit that the evidence cannot support a conviction on the charge alleged in the fourth count of the indictment. CONCLUSION [ 115 ] For these reasons, I would allow the appeal and set aside the appellant's conviction for possession of prohibited substances under the Controlled Drugs and Other Substances Act for the purpose of trafficking, but dismiss the appeal on the other counts. FRANÇOIS DOYON, J.A.