2013 QCCQ 1305, 2013 QCCQ 1305

Unofficial English Translation JC 1607 R. c. Cecere 2013 QCCQ 1305 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL "Criminal and Penal Division" No.: 500-73-002920-086 DATE: February 22, 2013 ______________________________________________________________________ PRESIDED BY: THE HONOURABLE GILLES CADIEUX, C.J.Q. _____________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

Angelo CECERE Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ A. THE CHARGES [ 1 ] The accused Angelo CECERE was tried on three counts: Count 1 - Between July 22, 1993, and July 18, 2007, at Montreal, District of Montreal, being a public officer, did unlawfully commit a breach of trust in connection with the duties of his office, thereby committing an indictable offence under

section 122 of the Criminal Code ; Count 2 - Between April 14, 2003, and July 18, 2007, at Montreal, District of Montreal, did wilfully attempt to obstruct, pervert or defeat the course of justice, thereby committing an indictable offence under subsection 139(2) of the Criminal Code ; Count 3 - On or about July 18, 2007, at Montreal, District of Montreal, did wilfully use or disclose the private communication or any part thereof or the substance, meaning or purport thereof, thereby committing an indictable offence under paragraph 193(1) (

a) of the Criminal Code ; [ 2 ] On July 3, 2012, at the start of the trial, the accused registered a guilty plea regarding count 1 (breach of trust by a public officer) and count 3 (disclosure of information), but pleaded not guilty with respect to count 2 (obstruction of justice). The trial for count 2 was held on October 5, 2012.

B.

THE EVIDENCE [ 3 ] In 2007, the accused Angelo CECERE had been employed by the Royal Canadian Mounted Police (RCMP) for 26 years as a civilian member acting as a monitor, transcriber, and translator assigned to Special Division "I", which was charged with the electronic surveillance of private communications. [ 4 ] The employees of Special Division "I" performed their work in a protected and secured zone and were prohibited from taking any document or copy of a document in any format whatsoever out of this zone. [ 5 ] In the performance of his duties, the accused worked on the Projet Colisée investigation, amongst others, which was led by the Combined Forces Special Enforcement Unit (CFSEU) and targeted Italian organized crime.

The investigation, which began in 2002, led to a sweep operation in late 2006, which resulted in about 75 people being arrested. In July of 2007, Projet Colisée was at a stage where legal proceedings relating to the disclosure of evidence to the accused and the application for interim release had been undertaken. [ 6 ] On the evening of July 17, 2007, the accused was working as a translator in Special Division "I".

From 4:32 p.m. to 5:45 p.m., he translated a private communication that had been intercepted in the context of Projet Colisée (pages 3 and 4 of exhibit P-1). [ 7 ] At 6:06 p.m., he telephoned his son Steven Cecere and asked him to set up a meeting with his friend and that it was important . [ 8 ] After the call, he continued translating this private communication and around 7:30 p.m., he drafted some comments regarding the quality and accuracy of the translation that had been done by another translator previously (pages 5 and 6 of exhibit P-1). [ 9 ] The accused finished working around 11:00 p.m. and went home, where he was soon joined by his son Steven, who was with Nicolas Di Marco.

The two visitors stayed there for nearly an hour and left the accused's home at around 1:15 a.m. [ 10 ] Steven Cecere and Nicolas Di Marco were intercepted by RCMP officers as they were leaving the accused's home.

The officers searched the two individuals and found, on Nicolas Di Marco’s person, a seven-page document relating to the private communication that had been intercepted in the context of Projet Colisée and that the accused Angelo Cecere had worked on that evening. [ 11 ] Pages 1 and 2 of this document (exhibit P-1) include the translation by another translator (translator's code 12350), pages 3 and 4 include the translation by the accused (translator's code 71859), and pages 5 and 6 include the comments and criticisms drafted by the accused during the evening. [ 12 ] The police officers then obtained a telewarrant authorizing them to search the home of the accused Angelo Cecere and, while performing this search, the officers found and seized a diskette containing a file that has been reproduced on paper in a 20-page document (exhibit P-2). [ 13 ] This 20-page document (exhibit P-2) contains the following information:

a) On pages 1, 2 and 3: A series of suggested questions to attack the qualifications of the translators hired by the RCMP and specific information on three of these translators under the heading QUESTIONS LAWYERS SHOULD ASK.

b) On page 4: Information relating to various events and many people investigated by the RCMP under Projet Colisée.

c) On pages 5 to 17: Information relating to several sessions or meetings that were held at the Consenza Social Club, that involved people who were investigated under Projet Colisée, and that were intercepted by the RCMP with audio and video equipment installed in the Club.

d) On pages 18 and 19: Information relating to several other communications that were intercepted by the RCMP and that concerned the initial translation and the revision of this translation by translators who were also police officers. Further, under the heading ABSOLUTELY NO ONE SHOULD PLEAD GUILTY, the document makes recommendations on how to discredit the translation done by the employees of the RCMP, adding that for four years, the wiretap authorizations were renewed every sixty days based on non-existent or wrong information.

e) On page 20: Disclosure of the name of the alleged kidnapper of a person who was investigated under Projet Colisée. [ 14 ] The analysis of this diskette revealed that the file was created on January 15, 2007, modified on February 9, 2007, and accessed on May 3, 2007 (exhibit P-2A). [ 15 ] According to police officer Michel Fortin of the RCMP, all the information given in exhibits P-1 and P-2 (names of persons being investigated and involved in the intercepted conversations, the facts related, the texts and the conversations) were very closely connected, stemmed from Projet Colisée, and was not publicly known at the time.

C- THE LAW [ 16 ] The offence of obstructing the course of justice set out in

section 139 Cr. C. is proved when it is established that the accused wilfully defeated or obstructed the course of justice or attempted to do so. It is not necessary to prove that the accused was successful or that he actually committed the act in question. Since it is a specific intent offence, the prosecution must prove beyond a reasonable doubt that the accused intended to adopt conduct tending to obstruct, pervert or defeat the course of justice.

A simple error in judgment is not enough. [1] [ 17 ] The issue of whether there was obstruction of justice must be determined on an assessment of the circumstances as a whole. [ 18 ] A distinction must be drawn between the preparation to commit a crime and the attempt to commit a crime: The actus reus must be more than mere preparation to commit a crime.

But when the preparation to commit a crime is in fact fully complete and ended, the next step done by the accused for the purpose and with the intention of committing a specific crime constitutes an actus reus sufficient in law to establish a criminal attempt to commit that crime. [2] [ 19 ] Finally, the accused is presumed innocent and the prosecution must prove, beyond a reasonable doubt, the essential elements of the offence, that is, the actus reus and the mens rea .

D- ANALYSIS [ 20 ] In 2007, the accused had been employed by the RCMP for 26 years as a civilian member and was therefore a public officer within the meaning of sections 118 and 122 of the Criminal Code . [ 21 ] By bringing the documents (P-1) and the diskette reproduced on paper as exhibit P-2 to his home, outside of the protected and secured work zone, the accused committed breach of trust for which he has entered a guilty plea. [ 22 ] There is no evidence that the content of the diskette (exhibit P-2) seized in his home during the search was transmitted or communicated, either electronically or by any other means, to anybody whosoever. [ 23 ] As for exhibit P-1, the evidence has not convinced me beyond a reasonable doubt that the document seized during the search of Nicolas Di Marco following his arrest was given to him by either the accused directly or another person with the knowledge and consent of the accused.

While he was working on this document and drafting his comments, the accused telephoned his son Steven and asked him to set up a meeting with his friend adding that it was important . Shortly after the accused returned home, Steven and Nicolas Di Marco arrived, and when they left an hour later, Di Marco was in possession of the document on which the accused had been working that evening when he telephoned his son. [ 24 ] Furthermore, the accused acknowledged this fact by pleading guilty to the third count of having wilfully disclosed all or part of a private communication (s. 193(1)(

a) Cr.

C . [ 25 ] With respect to exhibit P-2, the paper reproduction of the file on the diskette that was seized in the accused's home contains private communications or their substance, information relating to events or persons being investigated by the RCMP as part of Projet Colisée, comments regarding the qualifications of some RCMP translators or the quality of their work, suggestions of question to ask about them, and specific information regarding three of these translators. [ 26 ] Yet, absent any evidence whatsoever of communication or transmission of this information to other persons or attempts to do so, the Court must find that, with respect to this document, even if the accused intended to commit these actions to obstruct the course of justice, he did not do so.

In other words, the accused remained in the preparation stage and did not commit the acts that would have constituted an attempt to obstruct the course of justice. [ 27 ] Furthermore, when this document was written and later found in the accused's home, the Projet Colisée investigation had been closed, all of the accused had been arrested in late 2006, and legal proceedings were underway at the stage of disclosing elements of the evidence gathered and hearing the applications for interim release. [ 28 ] As for exhibit P-1 given by the accused to Nicolas Di Marco, it is a communication between an individual investigated under Projet Colisée, one Antonio Dell'Ermo, and a stranger.

At first glance, it makes no particular sense and there is no evidence explaining its significance in the context of Projet Colisée or giving a particular meaning to the comments that were made. [ 29 ] Again, the accused questioned the quality of the first translation which appeared wrong and incomplete to him and raised the possibility of other similar errors in the translations of other intercepted communications. [ 30 ] The remarks made earlier regarding exhibit P-2 (that the Projet Colisée investigation has been closed, the sweep performed, and the legal proceedings underway) also apply with respect to exhibit P-1, the document given by the accused to Nicolas Di Marco on July 18, 2007. [ 31 ] As for the accused's comments on the quality of the translation and the qualifications of the translators employed by the RCMP, they are likely to give rise to a judicial debate on the reliability of these pieces of evidence, but they do not obstruct the course of justice. [ 32 ] These debates could prolong the legal proceedings and make the work of the Crown attorneys more difficult.

But the interests of justice are better served by making sure that an accused is not found guilty on evidence of doubtful and seriously contested reliability. The conviction of an accused must be grounded in incriminating, reliable evidence that is proved beyond any reasonable doubt.

[ 33 ] The breach of trust committed by the accused and the disclosure of a private communication to Nicolas Di Marco are criminal offences for which the accused has acknowledged his guilt.

They denote a lack of loyalty by the accused Angelo Cecere toward his employer, the RCMP, but for the reasons expressed, these actions do not constitute an attempt to obstruct, pervert or defeat the course of justice. [ 34 ] The prosecution has not met its burden of proving beyond any reasonable doubt that the accused Angelo CECERE wilfully acted to obstruct the course of justice and that the accused had the specific intent of acting to obstruct the course of justice. [ 35 ] Consequently, the accused should be acquitted of the second count in the information.

FOR ALL THESE REASONS, THE COURT: FINDS the accused Angelo CECERE guilty of the charges brought under counts 1 and 3 and ACQUITS the accused of the charge brought under count 2 of the information. _____________________ GILLES CADIEUX, C.J.Q. Mtre Lyne Décarie For the prosecution Mtre Daniel Rock For the accused