R. v. Colegrove, 2022 NSSC 132

SUPREME COURT OF Nova Scotia Citation: R. v. Colegrove , 2022 NSSC 132 Date: 20220513 Docket: CRH 500238 Registry: Halifax Between: Her Majesty the Queen v. Jeffrey Colegrove -and- Phillip Hickey Decision on Charter Applications Judge: The Honourable Justice Christa M. Brothers Heard: Additional Written Submission: October 25, 26, 27, 28 and 29, 2021, February 16, 2022 in Halifax, Nova Scotia May 4, 9 and 10, 2022 Counsel: David Schermbrucker, Jill Hartlen and Maile Graham- Laidlaw, for the Crown Lucie Joncas, Jacques Normandeau and Jennifer MacDonald for Mr. Colegrove Eugene Tan, for Mr. Hickey Table of contents Introduction 2 Background 3 Correctional Service Canada (CSC) audit 7

The content of the training 12 Emails to the Crown 14 Positions of the parties – Mr. Colegrove’s application 16 The evidence 17 DW Jérôme Poulin 18 SIO Stéphane Deschênes 23 Michel Theriault 28 Corporal Peter Hurley 29 Constable Duane Roul 34 Erin Gray 37 Issues 39 Legislative provisions 39 CSC Commissioner’s Directives 41

Section 8 and the interception of inmate communications 44 1(a) - Did CSC breach Mr. Colegrove’s s. 8 Charter rights by intercepting his outgoing non-privileged calls? 76 1(b) - Did CSC breach Mr. Colegrove’s s. 8 Charter rights by intercepting his outgoing calls to legal counsel? 85 1(c) - Did CSC breach Mr. Colegrove’s s. 8 Charter rights by providing his authorized call list and call logs, as well as information obtained from the intercepted calls, to RCMP? 87 1(d) - Did CSC employees breach Mr. Colegrove’s s. 8 Charter rights by failing to notify him of the interceptions? 93

(2) Should the Charter-offending information be excised from the Maillet ITO and other ITOs in support of subsequent judicial authorizations? 95

(3) Should the evidence from the Donnacona intercepts be excluded at trial? 100

(4) Abuse of process 109 Conclusion – Colegrove application 110 Positions of the parties - Hickey application 110 Issues 112

(1) Excision for one, or excision for all? 112

(2) The Garofoli review of the Underwood ITO 128

(3) Stay of proceedings? 133 Conclusion – Hickey application 139 By the Court: Introduction [ 1 ] Jeffrey Colegrove is charged in a two-count indictment as follows: That he, between the 23rd day of March, 2018 and the 14th day of November, 2018, both days inclusive, at or near Halifax Regional Municipality and elsewhere in the Province of Nova Scotia, at or near Montréal, Québec and elsewhere in the Province of Québec, did unlawfully conspire with Steven Sarti, Sherrie Colegrove, Phillip Hickey, Erik Young, Frank Osso, and Sean Howarth, and with others

unknown, to traffic cocaine, a substance included in

Schedule I of the Controlled Drugs and Substances Act , SC 1996, c. 19 , contrary to section 5(1) of the said Act, and did thereby commit an indictable offence contrary to section 465(1) (

c) of the Criminal Code , RSC 1985, c. C-46 ; and further That he, between the 23rd day of March, 2018 and the 14th day of November, 2018, both days inclusive, at or near Halifax Regional Municipality and elsewhere in the Province of Nova Scotia, at or near Montréal, Québec and elsewhere in the Province of Québec, did unlawfully conspire with Steven Sarti, Sherrie Colegrove, Erik Young and Sean Howarth, and with others unknown, to traffic methamphetamine, a substance included in

Schedule I of the Controlled Drugs and Substances Act , SC 1996, c. 19 , contrary to section 5(1) of the said Act, and did thereby commit an indictable offence contrary to section 465(1) (

c) of the Criminal Code , RSC 1985, c. C- 46 . [ 2 ] Erik Young and Sherrie Colegrove were acquitted on August 3, 2021, following a statement by the Crown that it had no proof to tender with respect to those three co-accused. The charges against Steven Sarti were transferred, with consent, to Québec. The final co- accused, Phillip Hickey, is charged as follows: That he, on or about November 14 2018, at or near Dartmouth, Halifax Regional Municipality, did unlawfully possess a substance included in

Schedule I of the Controlled Drugs and Substances Act , SC 1996, c. 19 , to wit: cocaine, for the purpose of trafficking, contrary to section 5(2) of the said Act. [ 3 ] In an application filed May 17, 2021, and amended August 30, 2021, Mr. Colegrove seeks an order pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms staying the proceedings against him. In the alternative, he seeks an order pursuant to s. 24(2) of the Charter excluding evidence that he says was obtained in a manner that breached his ss. 7 and 8 Charter rights while he was an inmate at Donnacona Institution in Québec. [ 4 ] Mr.

Hickey has also applied for a stay of proceedings on the grounds that evidence against him was obtained in a manner that breached his ss. 7 and 8 Charter rights, and that using evidence against him that was obtained in violation of Mr. Colegrove’s Charter rights would tend to bring the administration of justice into disrepute and compromise Mr. Hickey’s right to a fair trial. In the alternative, Mr. Hickey seeks the exclusion of any evidence obtained in a manner that infringed either his Charter rights or those of Mr.

Colegrove. [ 5 ] The Charter applications were heard together, and this decision will address them both. Background [ 6 ] The following facts are not controversial. [ 7 ] The Donnacona Institution and other federal penitentiaries are governed by the Corrections and Conditional Release Act , S.C. 1992, c. 20 ( CCRA ), and the Corrections and Conditional Release Regulations (CCRR).

Section 94 of the CCRR authorizes the institutional head of a federal penitentiary, or a designated staff member, to intercept inmate communications without judicial authorization: 94

(1) Subject to subsection (2), the institutional head or a staff member designated by the institutional head may authorize, in writing, that communications between an inmate and a member of the public, including letters, telephone conversations and communications in the course of a visit, be opened, read, listened to or otherwise intercepted by a staff member or a mechanical device, where the institutional head or staff member believes on reasonable grounds (

a) that the communications contain or will contain evidence of (

i) an act that would jeopardize the security of the penitentiary or the safety of any person, or (ii) a criminal offence or a plan to commit a criminal offence; and (

b) that interception of the communications is the least restrictive measure available in the circumstances.

(2) No institutional head or staff member designated by the institutional head shall authorize the opening of, reading of, listening to or otherwise intercepting of communications between an inmate and a person set out in the schedule, by a staff member or a mechanical device, unless the institutional head or staff member believes on reasonable grounds (

a) that the grounds referred to in subsection (1) exist; and (

b) that the communications are not or will not be the subject of a privilege.

(3) Where a communication is intercepted under subsection (1) or (2), the institutional head or staff member designated by the institutional head shall promptly inform the inmate, in writing, of the reasons for the interception and shall give the inmate an opportunity to make representations with respect thereto, unless the information would adversely affect an ongoing investigation, in which case the inmate shall be informed of the reasons and given an opportunity to make representations with respect thereto on completion of the investigation. [ 8 ] In 2018, Mr. Colegrove was serving a sentence at the Donnacona Institution in Québec. On March 23, 2018, Stéphane

Deschênes , a Security Intelligence Officer (SIO) at Donnacona, met with Deputy Warden (DW) Jérôme Poulin to obtain an authorization to intercept Mr. Colegrove’s communications under s. 94(1) of the CCRR. Two days earlier, SIO Deschênes had received information from a source that Mr. Colegrove and another inmate were offering $300 to any inmate who would bring tobacco, hash, cellphones and possibly oxycontin into the prison through their personal effects box.

SIO Deschênes recorded that information in an Intelligence Observation Report (IOR), which he shared with DW Poulin. [ 9 ] During their meeting, SIO Deschênes presented DW Poulin with the completed Authorization to Intercept Inmate Communications (authorization form) . In the box labelled “Gist of the information establishing reasonable grounds to believe”, SIO Deschênes wrote, “Traffic de stupéfiants en établissement” (“drug trafficking in institution”, in English). He left the box for “Comments of the Security Intelligence Officer (if applicable)” empty.

DW Poulin signed the authorization form, authorizing the interception of Mr. Colegrove’s communications from March 23, 2018 until April 20, 2018. In the box for “Comments of the Institutional Head or Deputy Warden”, DW Poulin wrote, “En accord avec la présente demande” (“In accordance with this request”). [ 10 ] SIO Deschênes subsequently sought, and DW Poulin granted, two 15-day extensions of the authorization. In authorizing the extensions, DW Poulin wrote “En accord avec la présente demande de prolongation” (“In accordance with this extension request”). In total, Mr.

Colegrove’s communications were intercepted from March 23, 2018 until May 18, 2018. At no time was Mr. Colegrove notified that his calls were being intercepted, or given an opportunity to respond to the allegations against him. [ 11 ] Meanwhile, in Halifax, RCMP were conducting an investigation focused on the trafficking of fentanyl, cocaine, and cannabis resin in Halifax Regional Municipality, known as “Operation Hackberry”.

Constable Peter Hurley, the primary investigator, had received information that Frank Osso and Phillip Hickey – individuals suspected of drug trafficking in HRM – had a supplier in Montreal, Québec. Cst. Hurley began to suspect that Mr. Colegrove was involved, based on his association with another individual connected to the investigation. On May 14, 2018, Cst. Hurley emailed Michel Theriault, SIO at Dorchester Penitentiary Minimum Sector in New Brunswick, to ask who Cst. Hurley needed to contact at Donnacona to obtain Mr. Colegrove’s inmate phone contact list and call logs.

SIO Theriault forwarded the email to SIO Deschênes , advising that Cst. Hurley was looking for information concerning Jeffrey Colegrove. SIO Deschênes then emailed Cst. Hurley on May 14 as follows: I think we should talk about him [Colegrove]. I think he’s planning to do business in Halifax. I will export the phone contacts et [ sic ] call log. [ 12 ] Cst. Hurley and SIO Deschênes then spoke by phone. Cst. Hurley asked SIO Deschênes what he meant when he said Mr. Colegrove was planning to do business in Halifax. SIO Deschênes explained that there was a prison investigation into Mr.

Colegrove for potentially trafficking cannabis resin within the institution, and that all of Mr. Colegrove’s phone calls were being intercepted. He said he had listened to a call on May 7 at around 9 pm where Mr. Colegrove and an unknown male named Billy were discussing sending someone out to Halifax. Cst. Hurley expressed interest in obtaining the phone calls. SIO Deschênes told Cst. Hurley that he could provide the inmate call logs and contact list if Cst. Hurley sent a written request confirming that the information was for an active RCMP investigation.

The recordings of the calls intercepted by Donnacona, however, could not be disclosed without a production order. [ 13 ] On May 15, 2018, Cst. Hurley emailed a written request for information to SIO Deschênes: Jeffrey Colegrove is a subject of an investigation for supplying fentanyl, cocaine and hash to Halifax through a network. I understand you currently have a warrant to listen to and record his inmate phone calls for an unrelated investigation. Are you able to send me a copy of his contact list, phone logs and a copy of your search warrant to assist in our investigation?

The same day, SIO Deschênes forwarded copies of the authorization forms signed by DW Poulin, Mr. Colegrove’s contact list, and the phone call logs. [ 14 ] On May 19, 2018, Halifax RCMP obtained a production order under s. 487.014 of the Criminal Code for copies of the recordings and call logs for all phone calls placed by Mr. Colegrove from March 23 to May 18. Cst. Jonathan Maillet , a member of the Operation Hackberry investigation team, was the affiant who applied for the production order.

His affidavit included the following at paragraph 24: On May 18 th , 2018 I spoke with Cst Hurley and I learned the following: … h. On May 15 th , 2018 he spoke with Stephane Deschenes (Deschenes), Security Intelligence Officer, with Donnacona Institution in Quebec and he learned the following: i. Deschenes has been investigating Colegrove’s involvement in trafficking cannabis resin within the institution; ii. Deschenes was granted an authorization to obtain Colegrove’s inmate communications from the Deputy Director of the Institution.

Deschenes has been listening to and intercepting all Colegrove’s inmate phone calls from March 23 through May 15 th , 2018. The order expires on May 17 th , 2018; iii. In the communications that Deschenes has monitored he has learned that Colegrove uses his sister Sherri to three way call associates outside the prison. Colegrove will call Sherri and request she three way call his associates into the phone call; iv. Deschenes monitored a call on May 7 th , 2018 at approximately 9pm where Colegrove makes a call to Sherri and requests that she three way call “Billy” into the call.

Colegrove discusses sending someone to Halifax with “Billy” and

Colegorve [ sic ] does not like the person that “Billy” suggests because he talks too much; v. Colegrove speaks to “Billy” regularly [redacted]; vi. Deschenes does and will have all control of all Colegrove’s calls between March 23 rd and May 17 th , 2017 in his possession at 1537, highway 138 Donnacona, Québec and can produce a copy of the voice call recordings and call logs within seven (7) days upon receipt of a production order. Deschenes is unable to give a total number of calls in his possession as they would have to be counted manually and he is not able to do this given the time required. i.

On May 15 th , 2018 he received email from Stephane Deschenes (Deschenes), Security Intelligence Officer, with Donnacona Institution in Quebec and attached were the following documents: i. Call logs for Colegrove; ii. Inmate contact list for Colegrove; iii. Inmate call logs for Colegrove. j. On May 18 th , 2018 he reviewed Colegrove’s inmate contact list and he learned the following: i. He has a contact listed as his sister Sherri Colegrove with phone number … [ 15 ] After receiving the production order, SIO Deschênes advised Cst. Hurley that the recordings included calls between Mr.

Colegrove and his lawyers, and asked whether these privileged items should be removed. Following the discussion with Cst. Hurley, SIO Deschênes received an email on May 22, 2018, from another officer, Cst. Duane Roul, who wrote: I spoke with Peter and was advised that we should get all the calls. Our Special I unit will filter the calls appropriately as if they were intercepted by us. Therefore, any calls to a lawyer will be confirmed and sealed and there will be an accurate log of all calls made.

This will also make it less work for you. [ 16 ] Arrangements were made for an RCMP officer in Québec to pick up the USB stick containing the recordings and to courier them to RCMP headquarters in Dartmouth, Nova Scotia. [ 17 ] Information obtained from the Donnacona phone calls was subsequently relied on by the RCMP to obtain a

Part VI wiretap authorization to intercept the communications of multiple individuals, including Mr. Colegrove, Mr. Hickey, and the other persons named in the indictments, and to obtain warrants to install or use devices to track the whereabouts of those individuals. RCMP later relied on information obtained from the Donnacona phone calls, the wiretaps, and the tracking devices in an Information to Obtain a Search Warrant for Phillip Hickey’s residence. “Takedown warrants” were obtained in November 2018.

Correctional Service Canada (CSC) audit [ 18 ] In April 2021, CSC’s Internal Audit Sector released a report outlining the findings of its Audit of Interception of Inmate Communications, which was conducted as part of CSC’s 2017-2020 Risk-Based Audit Plan. The importance of the audit was explained at p. 1: In order to help maintain safety and security within institutions, and pursuant to requirements in the Corrections and Conditional Release Regulations (CCRR) and the Criminal Code , inmate communications can be intercepted to obtain intelligence information that may assist with the prevention and management of

an act that would jeopardize the security of the penitentiary or the safety of any person. CSC has been granted authority under the Corrections and Conditional Release Act ( CCRA ) to intercept inmate’s private communication without receiving prior judicial authorization.

Given the significance of this authority and the impact on an inmate’s right to privacy, it is essential that CSC has an adequate and effective framework in place to ensure that inmate communication is intercepted in a manner consistent with legislative requirements. [ 19 ] The objectives of the audit were described as follows: The objectives of this audit were to: • Provide assurance that the management framework in place supports the efficient and effective achievement of communication intercept objectives; and • Provide assurance that key activities have been implemented in compliance with requirements.

For the first objective, the audit examined whether: • CSC guidance is complete, clear, and aligns with legislation; • CSC provides training to support the discharge of responsibilities; • CSC has in place the necessary equipment to intercept inmate communications; • CSC conducts monitoring on a regular basis and documents and reports on results to the required management level. For the second objective, the audit examined whether:

• Reasonable grounds is adequately documented and supported by intelligence information; • Approval to intercept is given in writing, by an individual with the appropriate authority, prior to the start of related intercept activity; • Interception is carried out in compliance with approvals; and • Information is appropriately secured and shared. (Executive

Summary, p. ii) [ 20 ] The audit was conducted in two phases. Phase 1 was national in scope and involved, among other things, an analysis of the interception of inmate telephone communication. File review included a sample of communication intercepts that were approved and completed from January 1, 2017 – June 22, 2018 at institutions selected in three of the five regions.

Institutions in Québec and the Atlantic region were not visited in Phase 1. [ 21 ] The results for the first objective of Phase 1 were summarized at p. 10 of the report: Through Phase 1 of this audit, we found that elements of a management framework were in place; however, improvements were required to help ensure that the framework supports the efficient and effective achievement of communication intercept objectives.

Specifically, a lack of guidance and limited training caused institutional management and SIOs to have an incomplete understanding of the legal and policy requirements for intercepting inmate communications, which resulted in significant compliance issues.

These compliance issues, which are described in the second objective of this audit report, have gone largely undetected due to insufficient quality assurance over the intercept work performed by the SIOs, and a lack of monitoring and report activity. [ 22 ] Results for the second objective were as follows: We found that several of the key activities associated with the communication intercept process were not always compliant with requirements.

Specifically, reasonable grounds were often not adequately documented and/or supported by intelligence information , authorization to intercept an inmate’s communication was not always provided in writing, and communication (including that which is privileged) was intercepted without approval. We also identified that intercept activity was not always well-documented, and information obtained through intercept was not always properly managed.

In addition, we found a lack of effective safeguards to ensure that CSC was meeting its legal and policy obligations with respect to notifying inmates that their communication had been intercepted. (p. 18) [ 23 ] More detail on the inadequate documentation of reasonable grounds was provided at p. 11: [Commissioners Directive] 568-10 requires that CSC form 1454 Authorization to Intercept Inmate Communications (approval form) , be completed in its entirety and maintained on file by an SIO. This form includes a

section for documenting a gist of the information being relied upon to establish the reasonable grounds. We reviewed a sample of files to determine if reasonable grounds were documented, and if the information provided was adequate to persuade an independent third party to believe that the conditions stated in the CCRR (i.e. communications contain or will contain evidence of) have been met. We found that reasonable grounds were documented in 96% (80/83) of the files reviewed.

For the three files where the grounds were not documented, SIOs indicated that the approval form had been completed, but they were unable to locate it. Further, we found that reasonable grounds were adequately documented for 60% (48/80) of the files. In general, the extent of information documented to establish reasonable grounds varied significantly from one file to another, typically did not reference supporting information, and at times was limited to one or two sentences (i.e. inmate found unresponsive in cell).

The reasonable grounds were prepared by an SIO and provided to the decision maker for review and approval. SIOs indicated that they felt that the extent of information that should be documented to demonstrate reasonable grounds was subjective, was not clearly articulated in CSC guidance, and varied depending on the decision maker. Decision makers indicated that while they felt they understood what should be documented, this was based on their experience as they had never been challenged on the adequacy of their documentation, nor had they been provided with examples of properly documented reasonable grounds.

We found that the guidance provided in CD 568-10 did not further define or provide clarification as to how reasonable grounds should be documented. In addition, we found that there was no challenge function or review of the information provide on approval forms from RHQ/NHQ. The lack of clear guidance and oversight combined with the limited training decision makers and SIOs have received resulted in a lack of adequately documented reasonable grounds.

This in turn limited CSCs ability to demonstrate the information that was taken into consideration by the decision maker to ensure that the standard of proof required by the CCRR to justify the interception of communication had been met. [Emphasis added] [ 24 ] On the issue of reasonable grounds being inadequately supported by intelligence information, the report states at pp. 11-12: As required by CD 568-10, SIOs are responsible for gathering and providing details or evidence for requesting authorization to lawfully intercept an inmate’s communication.

We reviewed a sample of files to determine if the reasonable grounds clearly referenced the supporting intelligence information, and that the information being referenced existed (documented in the preventive security file). We found that supporting information was clearly referenced for only 38% (30/80) of the files reviewed. Of these 30 files, the information being referenced was documented for 93% (28/30).

SIOs indicated that they did not always have enough time to ensure that information being relied upon to establish reasonable grounds was documented as required prior to seeking approval to intercept due to a lack of human resources. Further, approval processes in place did not include a review of the supporting information to ensure that it was documented.

The lack of clear referencing to supporting documentation limited CSC’s ability to demonstrate that the information being relied upon to establish reasonable grounds was compelling, credible, and existed. [Emphasis added] [ 25 ] Upon completion of Phase 1 in autumn of 2018, CSC management prepared an action plan to immediately address the most significant preliminary findings.

This action plan was intended to provide updated guidance to institutions; provide training to institutional management and SIOs on the legal and policy framework as well as on the voice logger; and implement oversight and quality assurance processes at both Regional and National Headquarters over authorizations to intercept. [ 26 ] Phase 2 of the audit assessed whether management actions were effective in addressing the most significant issues raised through Phase 1. Specifically, it included an assessment of reasonable grounds, approvals to intercept, and compliance with approvals.

File review focused solely on the interception of telephone communication and included a sample of intercepts that were approved and completed from November 1, 2018 – April 12, 2019, at institutions in all five regions, including Donnacona. [ 27 ] Results from Phrase 2 for reasonable grounds demonstrated some improvement: Results of the file review for Phase 2 revealed that: • Reasonable grounds were documented: 100% (62/62) • Reasonable grounds were adequately documented: 79% (49/62) • Reasonable grounds clearly referenced the supporting intelligence information: 81% (50/62) • The intelligence information being referenced was documented: 86% (36/42) (p. 12) [ 28 ] From 2019 to 2021, CSC delivered extensive training to institutional management and SIOs on the interception of inmate communications.

New and updated intercept forms were introduced, and other changes were made to the intercept policy framework. In June 2020, CSC Commissioner Anne Kelly approved the establishment of a National Intercept Centre (NIC) at National Headquarters, which became operational in or around October 2021. Requests for authorization are now sent to the NIC for review, prior to intercept authorization. The content of the training [ 29 ] The training materials prepared in the aftermath of the audit were not included in the Crown disclosure. Mr.

Colegrove first learned of their existence from the testimony of Stéphane Deschênes and Jérôme Poulin at this hearing. After being informed by counsel for CSC that it was claiming privilege over the training materials, the accused filed a third party records application. In my decision (reported at 2022 NSSC 33 ), I ordered disclosure, with some redactions, of all but three of the documents. [ 30 ] The CSC training materials emphasize several key points, including: •

Section 184 of the Criminal Code generally requires judicial authorization to intercept private communications. (Ex. 16 - Tabs 20, 25) • CSC’s power under s. 94 of the CCRR to intercept private communications without judicial authorization is an “exceptional power”. (Ex. 16 - Tabs 20, 22, 25) • The lack of a requirement for judicial authorization under s. 94 “arguably elevates the risk of the scheme”. (Ex. 16 - Tab 25) • It follows that “the manner in which the authorization is granted should be reasonable, defensible, and based on objective, compelling, and credible information”. (Ex. 16 - Tab 25) • The SIO completes the authorization request form, outlining the “gist” of the information or evidence to establish reasonable grounds to believe: (1) that the inmate’s communications contain or will contain evidence of

an act that would jeopardize the security of the penitentiary or the safety of any person; and (2) that interception of the communications is the least restrictive measure available in the circumstances.(Ex. 16 - Tabs 25, 26, 35) • The “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard of proof on the balance of probabilities; it is “a genuine belief in a probable event/situation that is based on compelling, credible, and corroborated information.” (Ex. 16 - Tabs 24, 25) • The Institutional Head (IH) or Deputy Warden (DW) reviews the authorization form to determine whether the criteria outlined in s. 94 of the CCRR are met.

The IH or DW should consider the following prior to authorizing a request for interception: o reference to intelligence reports that contribute to the formulation of reasonable grounds to believe the interception of the inmate’s communication is necessary and is the least restrictive measure available in the circumstances.

o details supporting source information (reliability, supporting documentation reference number etc.). o supporting evidence and information is rooted in belief as opposed to mere suspicion. o evidence used to formulate grounds does not bring the administration of justice into disrepute. o the use of information from regional security intelligence analysts while formulating rationale. (Ex. 16 -Tab 21) • Requests for an extension of the authorization to intercept must contain reasonable grounds to believe that are clearly articulated, well supported with intelligence information collected from the initial intercept, and different from the grounds provided during the initial request.

The request for an extension cannot be supported by a simple restatement of the reasonable grounds to believe that resulted in the original authorization. (Ex. 16 - Tabs 20, 21, 22, 25, 26) • All extensions must be authorized prior to the expiry of the existing authorization. If the initial authorization expires, the SIO must submit a new request for authorization. (Ex. 16 - Tab 26) • Telephone communications between inmates and lawyers, or other privileged correspondents, cannot normally be intercepted.

SIOs must ensure that the “call suppression” feature is activated for the phone numbers of privileged correspondents on the inmate’s list of authorized calls before commencing interception. The call suppression feature prevents calls to suppressed phone numbers from being recorded.

The DW must verify that call suppression has been initiated prior to authorizing the interception. (Ex. 16 - Tabs 25, 26, 28, 30) • Pursuant to s. 94(3) of the CCRR, when an inmate’s communications are intercepted, the IH or other designated staff member must promptly inform the inmate, in writing, of the reasons for the interception (the “gist”). The inmate then has the right to make written or oral representations to the IH contesting the reasons justifying the interception.

The IH will consider any information received during the inmate’s representations when making any decisions related to the use of information gathered from the interception. If promptly informing the inmate of the interception would adversely affect an ongoing investigation, notification can be delayed until the completion of that investigation. (Ex. 16 – Tab 26) • Since the inmate has the right to respond to the reasons for the interception, gists should provide sufficient detail to enable the inmate to meaningfully exercise that right.

Gists are about transparency and fairness. (Ex. 16 – Tab 24) [ 31 ] The training materials also reference a proposed class proceeding in the Federal Court of Canada – Philip v. Canada (Attorney General) – concerning allegations of unlawful interception of communications by the CSC. In the statement of claim, Mr. Philip alleges that CSC listened to and recorded his personal conversations, including privileged communications, and divulged recordings of those conversations to third parties, including for the purpose of prosecuting Mr. Philip for additional offences.

The CSC is alleged to have violated the Charter , the Criminal Code , the CCRR, Commissioner’s Directives, and privacy legislation. Emails to the Crown [ 32 ] After being contacted to arrange a time for his testimony in these applications, DW Jérôme Poulin sent the following email to Crown counsel on June 16, 2021: As previously mentioned, I will be on vacation from July 19 to August 9. During this time, I will be at a cottage with my family and therefore unavailable. I would also like to inform you that in the warrant I signed, the intelligence officer’s demonstration of reasonable grounds is very weak.

He certainly does not demonstrate in his justification that we had reasonable grounds to intercept this inmate’s communications. In fact, we recently lost two court cases in Quebec with the same justification. We were unable to demonstrate that we had reasonable grounds to intercept the inmate’s communications. We have since modified our procedures for demonstrating reasonable grounds when we prepare a request to intercept communications.

Therefore, during my testimony, I will be required to acknowledge our weakness in terms of demonstrating reasonable grounds and our failure to fill out our request to intercept communications properly. We have since received training and changed our practices. You should therefore not rely on my testimony to have this interception of communications recognized. (English translation) [ 33 ] Six days later, on June 22, 2021, after being contacted by the Crown, SIO Stéphane Deschênes replied as follows: I really don’t understand why I need to be there… I testified for four days the last time.

And to be honest, we had two cases where it was established that we did not had [ sic ] enough for reasonable grounds, and we putted [ sic ] a lot more than I did in Colegrove ’s case. One we had to made [ sic ] an offer and the second one the prosecutor dropped the charges. So I’m not confidant [ sic ] about this. [ 34 ] David Schermbrucker replied for the Crown later the same day: Thanks Stéphane. Jill and I understand your concerns about the strength of the case.

However we also believe that someone who is incarcerated in a penitentiary and then allegedly continues to arrange large drug deals involving dangerous drugs for profit is a case we should spend time and effort on. As for you having to testify on June 29 and then again in July, we understand your frustration, having spent so much time already testifying. But this is part of what we are paid to do as public servants, and we very much appreciate your time and effort. We only ask that you speak the truth to the judge, and however it ends up, c’est la vie.

[ 35 ] SIO Deschênes responded on June 28, 2021: Don’t worry I will tell the truth. It is the reason I feel bad. Back then, we thought we had reasonable grounds, but now, we know for a fact that we did not. I will have no choice to tell it [ sic ]. CSC did a lot of job [ sic ] to upgrade everything around the interception of communication. One information from one source can not be enough to have reasonable grounds.

You have no idea how bad I feel. [ 36 ] Finally, on September 7, 2021, DW Poulin sent the following email to the Crown: First, CSC has only recently developed training on the interception of communications, meaning that we were still self-directed when we needed to establish reasonable grounds of belief in order to allow a request for interception of communications. That is why I originally approved this request for interception of communications on the grounds that inmate Colegrove was involved in trafficking contraband.

At the time when SIO Stéphane Deschênes came to my office and informed me that inmate Colegrove was involved in trafficking contraband, the grounds to intercept were only supported by a reliable inside source. There was therefore no reference to other source documents supporting the reasonable grounds of belief. At the time, I thought that it was enough to establish the reasonable grounds of belief that the inmate was involved in trafficking contraband and to authorize the interception of communications.

For this reason, we are not able to confirm that the quality assurance of intercept documentation meets policies and legislative criteria. I agreed with the requests for extension of the intercepted communications because this time, the reasonable grounds of belief were based on the listening to the first 30 days of interception. (English translation) Positions of the parties – Mr. Colegrove’s application [ 37 ] Mr.

Colegrove submits that his right to be secure against unreasonable search and seizure, protected under s. 8 of the Charter , has been infringed in the following ways: • CSC did not have reasonable and probable grounds to intercept Mr. Colegrove’s private communications, as required under s. 94(1) of the CCRR; • CSC did not have reasonable and probable grounds to grant two extensions of the authorization to intercept Mr. Colegrove’s private communications; • CSC, through Stéphane Deschênes, disclosed confidential information to the RCMP without judicial authorization; • CSC failed to inform Mr.

Colegrove that his communications were being intercepted, as required under s. 94(3) of the CCRR and s. 27 of the CCRA ; • The production order obtained by Cst. Maillet did not meet the reasonable and probable grounds test, and is therefore invalid. [ 38 ] Mr. Colegrove further submits that his rights protected under s. 7 of the Charter are engaged through the doctrine of abuse of process.

He says his s. 7 rights have been infringed in the following manner: • CSC’s decision to intercept private communications, with knowledge of the absence of grounds to justify the interception, and the subsequent use of those communications by the RCMP to obtain a judicial authorization amounts to an abuse of process; • The interception of all communications, without regard for solicitor-client privilege, aggravates the state’s abusive conduct; • The prosecution’s decision to declare that it does not possess sufficient evidence to prosecute Mr. Colegrove’s co-accused, while pursuing the charges against Mr.

Colegrove in spite of the concession by Jérôme Poulin, is an exercise of prosecutorial discretion that amounts to an abuse of process in the circumstances. [ 39 ] Mr. Colegrove asks for a stay of proceedings or, in the alternative, an exclusion of all the evidence illegally obtained as a result of the Donnacona interceptions and the subsequent seizure of those communications by the RCMP. [ 40 ] The Crown submits that neither of Mr. Colegrove’s Charter rights were infringed. It further submits that the production order obtained by the RCMP which required the CSC to provide the recordings of Mr.

Colegrove’s phone calls was neither unlawfully obtained nor misleading. [ 41 ] The Crown submits that in the event the court concludes that any of Mr. Colegrove’s Charter rights were infringed, the evidence in question is still admissible pursuant to the analysis under Charter s. 24(2) . The evidence [ 42 ] The court heard testimony from DW Jérôme Poulin , SIO Stéphane Deschênes , Michel Theriault, Corporal Peter Hurley (formerly Constable), Erin Gray, and Det. Cst. Josh Underwood. An agreed statement of facts was entered with respect to Cst.

Jonathan Maillet, who was not able to attend the hearing. [ 43 ] Although these are defence applications, defence counsel sought leave to cross-examine the witnesses. The Crown consented. I granted leave to Mr. Colegrove’s counsel to cross-examine all the witnesses who gave viva voce evidence other than Det. Cst. Underwood. Counsel for Mr. Hickey was granted leave to cross-examine Det. Cst. Underwood.

[ 44 ] Several key documents in this proceeding were written in French, and a translator was required to translate the evidence of DW Poulin and SIO Deschênes , which was given in French. Complicating matters, notwithstanding their client’s decision to have an English trial, Mr. Colegrove’s counsel cross-examined DW Poulin and SIO Deschênes in French. [ 45 ] I made it clear to all parties, on more than one occasion, that I do not speak French. I emphasized that if there were French documents that they wanted the court to consider, evidence of the proper translation was required.

As will be discussed later, notwithstanding the court’s comments, some relevant documents were not translated. [ 46 ] I will review the evidence of each of the witnesses. DW Jérôme Poulin [ 47 ] DW Poulin began working for CSC as a Correctional Officer (CO) at Donnacona in 1998. In 2000, he became a CO II. From 2004 until 2007, he rotated between working as an SIO and a CO II, spending 4-6 months at a time in each role. From 2008 until 2012, he was a Correctional Manager. From 2012 until 2015, he was Assistant Warden of Operations.

He became Deputy Warden in 2015. [ 48 ] DW Poulin testified that in 2018, inmates were able to use a telephone booth to make calls to persons outside the institution. Each inmate was given a telephone card and a PIN number. After inserting the card and entering the PIN, the inmate could dial a number that was on their authorized call list. [ 49 ] DW Poulin stated that inmates receive several notifications that their phone calls could be intercepted.

When an inmate first arrives at the Regional Reception Centre Special Handling Unit in Sainte-Anne-des-Plaines, Québec , they are given a “ Statement Concerning Private Communications ”, which indicates that communications may be intercepted. When shown a document signed by Jeffrey Colegrove on January 31, 2017, DW Poulin confirmed that it was the statement in question.

The document states as follows: This is to advise you that any communication except communications with: (1) your solicitor in the course of solicitor-client relationships; (2) members of Parliament, members of the Senate, the Correctional Investigator or their staff; may be intercepted, as defined in the Criminal Code , or acquired through unassisted listening. You are required to acknowledge receipt of this advisory statement.

A refusal to acknowledge shall be annotated in your records but shall in no way limit the use of interception provided all other conditions of Commissioner’s Directive 575 are met. [ 50 ] DW Poulin said that there are also signs on the wall above every telephone at Donnacona.

The signs, written in both English and French, state: All activities, including conversations and telephone communications in this area, are subject to monitoring and may be taped or video recorded. [ 51 ] DW Poulin testified that on March 23, 2018, SIO Deschênes came to his office to present an IOR and to request an authorization to intercept Mr. Colegrove’s communications. He said that SIO Deschênes told him that Mr. Colegrove and another inmate were offering $300 to any inmate who would bring tobacco, hash, cellphones and possibly oxycontin into the prison through their personal effects box.

DW Poulin explained that when an inmate is admitted into the institution, he is given a 30 day authorization to bring his personal effects into the prison. DW Poulin said he was very familiar with the other inmate alleged to be working with Mr. Colegrove, and knew he was a key actor in the trafficking of drugs in the institution . [ 52 ] In addition to SIO Deschênes ’ verbal presentation of the grounds for interception, DW Poulin reviewed the IOR. He said that when an SIO requests an authorization to intercept, he has to have a IOR.

Under “Information/Observation provided to SIO or SIA”, SIO Deschênes wrote: March 21, 2018, the source mentions that Colegrove and [redacted] facilitate entrance of tobacco, hash, cellphones, and perhaps oxycontin. That would be done by the 30 days. Colegrove offers $300 to the person who will enter the box. [ 53 ] Under “Comments of Security Intelligence Officer or Security Intelligence Analyst”, he wrote: Agent S. Gareau called to mention that the two inmates are whispering together.

And when Colegrove makes a phone call, [redacted] is never far away. [ 54 ] DW Poulin also read what SIO Deschênes had written on the authorization form. In the box labelled “Gist of the information establishing reasonable grounds to believe”, SIO Deschênes wrote , “Traffic de stupéfiants en établissement” (“drug trafficking in institution”). He wrote nothing in the box for “Comments of the Security Intelligence Officer (if applicable)”.

Under “Reliability Code”, SIO Deschênes indicated that the source had “apparent” reliability. [ 55 ] DW Poulin testified that he was convinced by the grounds that SIO Deschênes presented verbally, so he signed the authorization form, authorizing the interception of Mr. Colegrove’s communications from March 23, 2018 until April 20, 2018. The only comment DW Poulin wrote on the form was “En accord avec la présente demande” (“In accordance with this request”). [ 56 ] DW Poulin acknowledged that the specific grounds SIO Deschênes had presented to him and written in the IOR did not appear on the authorization form.

He explained that documents designated “Protected B”, like the authorization form, were more accessible to certain people than documents designated “Protected C”, like the IOR. For that reason, back in 2018, Donnacona staff were not writing out their reasonable grounds in any detail on the authorization form because they were afraid that people could obtain access to them. In other words, information that was written in a “Protected C” document was not included in a “Protected B” document, for security

reasons. He said that things are done differently now, after the audit. Wardens, DWs, and SIOs received training on how to properly fill out the authorization form, and they were told that sensitive information should not be included, but reference should be made to IORs and other intelligence reports. [ 57 ] DW Poulin was shown another IOR prepared by SIO Deschênes dated March 23, 2018 – the same day as their meeting.

Under “Information/Observation provided to SIO or SIA”, SIO Deschênes wrote: March 22, 2018, the source mentions that it is a woman that will make the money transfer for Colegrove and it is a woman who does the three way calls. [ 58 ] DW Poulin said that he did not see that second IOR before he signed the authorization form, but he did read it later. Although there was one more IOR in evidence, dated April 19, 2018, two days before DW Poulin approved the first 15-day extension of the authorization to intercept, DW Poulin was not questioned on that document by the Crown or the defence.

In fact, he was not asked any questions on direct or in cross-examination about the circumstances surrounding his approval of either of the two extensions. [ 59 ] On cross-examination, DW Poulin was asked about the training SIOs receive at Donnacona. He indicated that it was all done “on the ground” or “in the field”. New SIOs were trained by other, more senior SIOs. There was no formal training on how to complete an authorization form.

It was not until after the audit that SIOs and institutional management received formal training on how to properly demonstrate reasonable grounds to intercept inmate communications. DW Poulin agreed that the law on reasonable grounds had not changed; the only change was in how CSC staff demonstrated those reasonable grounds.

DW Poulin agreed that the training indicated that confidential information from a single source had to be corroborated by other knowledge or facts. [ 60 ] When asked how he would assess or verify the reliability of a source cited in an IOR, DW Poulin explained that the SIO assigns one of four reliability classifications to the source – “doubtful”, “unknown”, apparent”, or “total” reliability. He said the SIO is the intelligence specialist, and he trusts his SIO because of his experience.

DW Poulin said the SIO summarizes to him the factors that went into the reliability assessment for that particular source, including examples of information the source provided in the past that was subsequently verified. The SIO also indicates the sector the source lives in, and any other information pertinent to the reliability assessment. DW Poulin said there is no means for him to independently assess a source’s reliability. He relies on what the SIO tells him. [ 61 ] DW Poulin was questioned about the emails he sent to the Crown in June and September 2021.

He denied that he was advising the Crown that there had not been reasonable grounds to authorize the interception. He said he never doubted that SIO Deschênes presented reasonable grounds during their meeting on March 23, 2018, but he knew those reasonable grounds had not been properly demonstrated on the authorization form. DW Poulin said that if they were filling out the form today, they would include information about the second inmate, including his previous involvement with smuggling drugs into the institution, and also indicate the sector.

DW Poulin also confirmed that, following a change to the CSC directive, it is now the Warden who signs the authorization forms. The DW only signs authorizations to intercept if the Warden is absent. [ 62 ] Defence counsel asked whether, during their meeting on March 23, 2018, SIO Deschênes dealt with the requirement under s. 94(1)(

b) that he have reasonable grounds to believe that interception of communications is the least restrictive measure available in the circumstances. DW Poulin said yes. He said the prison’s means for searching inmates for contraband are not infallible. So if an inmate is planning to pay other inmates to bring contraband into the institution through their personal effects, recording that inmate’s phone calls would enable the prison officials to search the personal effects of specific inmates who have agreed to participate in the scheme.

DW Poulin emphasized that the introduction of contraband, cellphones, and tobacco into the institution creates risks for the security of the inmates, personnel, and the institution, so they have to act quickly. When there are drugs, cellphones, and tobacco entering the institution, it creates debts, which can lead to aggression. DW Poulin did not state that SIO Deschênes actually said any of these things during the meeting. [ 63 ] DW Poulin was asked to explain how phone calls between an inmate and their lawyer are dealt with when that inmate’s communications are being intercepted.

He said that the recording system is never supposed to record lawyers. He explained that there are certain numbers that every inmate is authorized to call. They can then request to add other numbers. If a number is not on an inmate’s authorized call list, the inmate is unable to call that number. When there are lawyer numbers on an inmate’s authorized call list and an authorization to intercept that inmate’s communications is granted, the lawyer numbers are added to a suppression list. The recording system cannot record a call when the number is on the suppression list.

DW Poulin said the SIOs are the ones who operate the recording system. [ 64 ] When it was put to DW Poulin that there were 10 confirmed recordings of conversations between Mr. Colegrove and his lawyers, he had no explanation for how that happened. DW Poulin said that when SIO Deschênes came to see him after receiving the RCMP production order, he did not inform him that the recordings included lawyer calls. [ 65 ] DW Poulin was cross-examined extensively about what discussions, if any, he had with SIO Deschênes about Mr.

Colegrove’s case after they learned about the Québec court cases and reviewed the audit findings regarding reasonable grounds to believe. DW Poulin said he was involved in several meetings with intelligence personnel after the audit about the intercept of communications generally, because they had to improve in that domain. He said he knew SIO Deschênes had been summoned to testify at the preliminary hearing in this matter, which took place in summer 2020, but that he and SIO Deschênes had not discussed what he should say in his evidence.

DW Poulin said he does not know what SIO Deschênes said during his three days of testimony. [ 66 ] With respect to the email DW Poulin sent to the Crown on June 16, 2021, DW Poulin said he told SIO Deschênes that he was going to email the Crown in Nova Scotia regarding the interception of communications, but he did not go into detail with him. DW Poulin said SIO Deschênes had no real reaction to that information. When defence counsel showed DW Poulin the email sent by SIO Deschênes to the Crown on June 28, 2021, he said he had never read it before, but denied being surprised by its contents.

He also denied being surprised that SIO Deschênes had only raised the issue with the Crown in June 2021, and not in 2019 after the post-audit training or in 2020 before his testimony at the preliminary hearing. DW Poulin said that he did not know anything about SIO Deschênes ’ testimony at that hearing, and whatever SIO Deschênes said in his emails was between him and the Crown.

SIO Stéphane Deschênes [ 67 ] SIO Deschênes has worked for CSC for 23 years. He became an SIO at Donnacona in May 2006. He told the court that SIOs collect information about inmates in relation to trafficking and involvement in criminal groups. They also do investigations of incidents happening within the prison. If they obtain evidence to support criminal charges, they gather all the information and make a file, which they then give to the provincial police in Québec. [ 68 ] On direct examination, SIO Deschênes testified about the rules governing inmate telephone use in 2018.

He said that every inmate was given a phone card and a PIN number, and they each had a list of authorized numbers. If an inmate wanted to add someone to the list, they had to fill out a form providing the person’s name, address, and phone number. Then a prison employee would call that person and ask whether they agreed to be on the inmate’s authorized list of numbers. SIO Deschênes said three-way calls were not permitted. A three-way call is when an inmate calls someone on their authorized call list, and that person calls another person who is not on the list and adds them to the conversation.

Each inmate was permitted to use the telephone for 90 minutes every 24 hours, and each call was limited to 20 minutes. When shown a photograph of a phone at Donnacona, SIO Deschênes said it appeared to be a newer phone because it did not have the small opening to insert the phone card. He explained that the phones in use today are able to recognize the inmate’s voice, so they no longer need the phone card. [ 69 ] SIO Deschênes testified that inmates are told that their calls may be intercepted.

He said that before an inmate ever arrives at Donnacona, they are given a form at the regional reception centre in Sainte-Anne-des-Plaines, Québec, which states that their calls may be intercepted. There are also signs next to the phones in French and English saying that the calls can be intercepted. Finally, when an inmate picks up the phone to make a call, they hear a recorded message that says the calls can be recorded with an authorization from the Warden. The message also says that three way calls are prohibited. [ 70 ] SIO Deschênes was shown Exhibit 4 and asked to identify it.

He testified that it was a list of Mr. Colegrove’s phone calls. For each call, it indicated the date, the incoming and outgoing numbers, the times the call started and ended and its duration, and whether the call was completed. He said that information is available for every inmate, regardless of whether their communications are being intercepted. [ 71 ] SIO Deschênes confirmed that on March 23, 2018, he went to see DW Poulin in his office to obtain an authorization to intercept Jeffrey Colegrove’s communications. He said he brought the IOR and the authorization form with him.

He told DW Poulin that he had received information that Mr. Colegrove and another inmate were conspiring to introduce drugs into the institution. The plan was to bring drugs into the prison through the personal effects of other inmates. He explained that prison staff refer to the box of personal effects as the “30 days”, because the inmate is authorized to bring in personal effects within 30 days. The 30-day authorization is approved by a correctional manager.

SIO Deschênes said he showed DW Poulin the IOR dated March 22, 2018, and they discussed “prior things that had happened with this prisoner and the other inmate”. [ 72 ] SIO Deschênes was asked about the second IOR dated March 23, 2018, which referred to source information that it was a woman who would make the money transfer for Colegrove and it was a woman who does the three way calls. He stated that he had written that IOR several hours after speaking with DW Poulin. He indicated that he could not explain the delay in documenting that information because it would endanger the source’s life.

SIO Deschênes confirmed that the information on the second IOR was shared with DW Poulin after he signed the authorization, but not before. He was not asked about the third IOR dated April 19, 2018, two days before DW Poulin authorized the first extension, and no English translation of the document was put into evidence. He also confirmed that he listened to Mr.

Colegrove’s phone calls during the interception period, but he did not prepare a Security Intelligence Report at the end of the investigation because the investigation was not a success. [ 73 ] On cross-examination, SIO Deschênes was asked about any training he received during his time as an SIO before 2018. He said that there was no formal training. New SIOs were trained by the more senior SIOs. He learned on the job. SIO Deschênes indicated that before the audit, there was never any formal training on authorizations to intercept inmate communications and reasonable grounds to believe.

After the audit, one of the first things the SIOs were taught was how to demonstrate reasonable grounds on the authorization form. SIO Deschênes explained that, prior to the audit, Donnacona staff were careful not to put information that was “Protected C” in a form that was “Protected B”. SIOs were then taught that they should reference to the “Protected C” document on the authorization form.

SIO Deschênes also referenced a detailed PowerPoint presentation prepared by CSC which outlined every step involved in demonstrating reasonable grounds. [ 74 ] SIO Deschênes was asked about how he would proceed today if he received information from a source. He said he would evaluate the source and determine whether it is a valid source. He explained that a source can have “unknown” reliability, like an anonymous letter or phone call, “doubtful” reliability, “apparent” reliability or “total” reliability. SIO Deschênes said that now, one source is not enough.

Now, they assess the reliability of the information as well as the reliability of the source. Like the source, the information can have doubtful, unknown, apparent, or total reliability. They also evaluate the antecedents of both the source and the inmates alleged to be involved. For example, were they involved in drug trafficking in the institution in the past? SIO Deschênes testified that when he looks back at the Colegrove authorization – the antecedents and the information – his opinion is that he had reasonable grounds to suspect, not reasonable grounds to believe.

He now sees elements that were missing that he “could have gone and looked for” before moving on to the next steps. SIO Deschênes agreed that it was not the law that changed; CSC’s practices changed to ensure compliance with the law. [ 75 ] It was suggested to SIO Deschênes that, prior to his calls being intercepted, Mr.

Colegrove had spent six weeks in an isolation unit after he requested to be moved from the sector he had previously been living in due to incompatibilities with other inmates, and that he had left isolation on March 21, 2018 – two days before SIO Deschênes obtained the authorization from DW Poulin. SIO Deschênes did recall Mr.

Colegrove spending several weeks in the isolation unit, and said it was “quite possible” that he left isolation on March 21. [ 76 ] It was put to SIO Deschênes , and he agreed, that when an inmate’s communications are intercepted, that inmate has the right to be notified so that they can respond to the reasonable grounds before any decision is made that impacts the inmate’s conditions of liberty. He agreed that Mr. Colegrove was not informed of the reasonable grounds to believe relied on to justify the interception of his

phone calls until Cst. Hurley came to Donnacona to transfer Mr. Colegrove to Halifax in or around December 2018. SIO Deschênes indicated that he did not personally notify Mr. Colegrove of the interception because the RCMP production order came with a non- disclosure order. [ 77 ] With respect to the telephone recording system, SIO Deschênes said he never received formal training on how to use it. He did not know back in 2018 whether the system had the ability to single out different phone numbers to include or exclude those communications from recording.

He said, however, that in the fall of 2018, while he was away, people came to Donnacona to upgrade the system and told SIO Deschênes’ colleagues that individual numbers could be added to a suppression list so that they would not be recorded. SIO Deschênes explained that the system recorded all of Mr. Colegrove’s calls during the interception period, including lawyer calls. When SIO Deschênes listened to the recordings, if he heard that the call was a lawyer, he would skip to the next call. He agreed that it could take some time to make that determination.

The recordings of the calls would remain in the system, even if no one listened to them. [ 78 ] SIO Deschênes was questioned about discussions that took place at internal meetings after the Québec court cases and the audit. He said there were formal discussions with the Warden or the DW about the changes that needed to be made, but there were no informal discussions with institutional management. The SIOs did speak informally with SIOs at other institutions about what they could do better. [ 79 ] On the issue of the RCMP production order, SIO Deschênes explained that he first learned of Cst.

Peter Hurley’s interest in Mr. Colegrove when he received an email from Mr. Theriault, an SIO in Dorchester Penitentiary, on May 14, 2018. SIO Deschênes did not know Cst. Hurley. He could not remember whether he subsequently received a phone call or an email from Cst. Hurley, but during their first discussion, Cst. Hurley said that Mr. Colegrove was implicated in a drug trafficking investigation in Halifax, and he wanted information about him. SIO Deschênes responded that in order for him to disclose any information to Cst.

Hurley, he would need written confirmation that the information was related to an ongoing investigation. SIO Deschênes said that once an SIO receives confirmation that there is a legitimate investigation, they are allowed to provide information to a police agency. SIO Deschênes said that sharing information about inmates with police forces or investigate bodies is dealt with in Commissioner’s Directive 701, which he followed. [ 80 ] SIO Deschênes said Cst. Hurley wanted to know what kind of information he could obtain from Donnacona. He did not remember exactly what Cst.

Hurley asked, but SIO Deschênes told him that Mr. Colegrove was under investigation for bringing drugs into the institution. Although he could not recall everything that was discussed, he did remember Cst. Hurley asking for Mr. Colegrove’s authorized call list. SIO Deschênes gave that to him, along with the a log of all the phone calls that were made. Cst. Hurley told him that he was going to get a judicial authorization to obtain the recordings from Donnacona. Initially, SIO Deschênes planned to extract only the calls to Mr. Colegrove’s sister and to have those ready for when Cst.

Hurley obtained the production order. After SIO Deschênes received the production order, he told Cst. Hurley that there were lawyer calls in the recordings, and that there would be a delay because he needed to take out those recordings. SIO Deschênes could not remember Cst. Hurley’s reaction, but said he later received an email from another Halifax RCMP officer telling him to disclose all of the phone calls, including lawyer calls. The officer said the RCMP would take care of screening out the privileged information.

SIO Deschênes did not discuss this issue with DW Poulin. [ 81 ] After disclosing the recordings, and after the Québec court cases and the audit, SIO Deschênes did not contact Cst. Hurley to advise him that there might be problems with the authorization to intercept Mr. Colegrove’s communications. Nor did he raise the subject with the Crown when he testified at the preliminary hearing for three days in summer 2020.

He did not discuss the evidence he planned to give at the preliminary hearing with DW Poulin, the Warden, or the other SIOs. [ 82 ] Defence counsel then returned to the information that SIO Deschênes disclosed to Cst. Hurley prior to any judicial authorization. SIO Deschênes was directed to the following paragraph of the Cst. Maillet affidavit: Deschenes monitored a call on May 7th, 2018 at approximately 9pm where Colegrove makes a call to Sherri and requests that she three way call “Billy” into the call.

Colegrove discusses sending someone to Halifax with “Billy” and Colegorve [sic] does not like the person that “Billy” suggests because he talks too much; [ 83 ] SIO Deschênes confirmed that he did share that information with Cst. Hurley. When it was put to him that there was actually no reference to Halifax in the May 7 recording, SIO Deschênes said that he knew there was reference to sending someone to the Atlantic provinces, and since the RCMP officer who contacted him about Mr.

Colegrove was in Halifax, he assumed it was there. [ 84 ] After being shown DW Poulin’s email to the Crown, SIO Deschênes denied that DW Poulin ever spoke with him about the Colegrove authorization and any potential concerns with it. He again noted that after the training, there were discussions about the interception process, but not about specific cases.

He also denied that his own email to the Crown had anything to do with DW Poulin’s email. [ 85 ] On re-direct, SIO Deschênes clarified that the reliability codes, from least reliable to most reliable, are doubtful reliability, unknown reliability, apparent reliability, and total reliability. He classified the source on the March 22, 2018 IOR as having apparent reliability. [ 86 ] SIO Deschênes was then asked about why he had been concerned that there would be a delay if he needed to remove the lawyer calls before disclosing the recordings to the RCMP.

He responded that there was a police investigation and he presumed that it was time sensitive. The production order gave him 7 days to produce the recordings. As for why he didn’t just produce the calls between Mr. Colegrove and his sister, as he originally planned, SIO Deschênes said the production order was not limited to one specific phone number. [ 87 ] Finally, SIO Deschênes confirmed that he had given Cst. Hurley the list of authorized phone numbers and the call logs for Mr. Colegrove, which included lawyer numbers and calls, before he received the production order. Michel Theriault

[ 88 ] Michel Theriault has worked for CSC since 2002. He started in 2002 as a CO at the Atlantic Institution in New Brunswick. He worked there until 2014 when he was transferred to Dorchester Penitentiary and began working as a CO II. In December 2014, Mr. Theriault became an SIO at Dorchester Penitentiary, in the minimum security sector. In 2019, he became the Regional Intelligence Coordinator in Moncton. [ 89 ] Mr. Theriault confirmed that in May 2018 he was an SIO at Dorchester Penitentiary. He stated that Cst. Hurley contacted him about an inmate incarcerated in the minimum sector at the time. Mr.

Theriault told him that he could not disclose information without a written request, so Cst. Hurley sent him an email requesting information about the inmate. Mr. Theriault did not remember the name of the inmate, or the specific information that he provided. Cst. Hurley then told him that he was working on an investigation involving an offender at Donnacona and asked how he would contact them. Mr. Theriault believed the inmate’s name was Colegrove, but he was not sure. So Mr. Theriault forwarded the email to the SIOs at Donnacona, so that they could get in contact with Cst. Hurley. [ 90 ] Mr.

Theriault was asked whether he asked Cst. Hurley about the nature of the RCMP investigation before giving him information. He said that as long as the officer tells him that they are working on an investigation involving an inmate, s. 8(2) (

e) of the Privacy Act only requires a written request from the investigating body. [ 91 ] Mr. Theriault was questioned about how interceptions of inmate phone calls are obtained in Dorchester Penitentiary. He explained that when he was an SIO in the minimum sector, he never needed to intercept inmate communications. If he had reasonable grounds to believe an offender was involved in illicit activities, he would approach the Warden to have the inmate transferred to a higher security level. [ 92 ] With respect to the recording system, Mr.

Theriault testified that he did not believe the call suppression feature for privileged contacts was new, but the process had changed after the audit to make sure that it was being used as intended. Corporal Peter Hurley [ 93 ] Peter Hurley is currently a General Duty member of the RCMP, stationed in Avalon East District in Newfoundland and Labrador. Before transferring to Newfoundland and Labrador in September 2020, he worked for five years in the Organized Crime Unit in Halifax/Dartmouth. [ 94 ] Although Peter Hurley now holds the rank of corporal, he was a constable at the time of the relevant events.

For the sake of clarity, I will refer to him as Cst. Hurley throughout this decision. [ 95 ] Cst. Hurley testified that he was the primary investigator for Operation Hackberry. He explained that in 2017-2018, one of the Organized Crime Unit’s strategic priorities was opioid trafficking, with a specific focus on fentanyl trafficking. Operation Hackberry began after RCMP identified two individuals in Halifax believed to be involved in fentanyl trafficking – Phillip Hickey and Frank Osso. [ 96 ] Through the investigation into Mr. Osso and Mr.

Hickey, the investigative team learned that the Halifax Regional Police had investigated both men for drug trafficking in 2017. Cst. Hurley contacted the lead investigator on that matter, Det. Cst. Scott Fairbairn, who advised that HRP had been investigating Phillip Hickey and Frank Osso for cocaine trafficking within HRM. He also told Cst. Hurley that on May 9, 2017, while they were conducting physical and vehicle surveillance on Mr. Hickey and Mr. Osso, they observed them meeting with an unknown male who was driving a black Ford 150 truck with Québec license plates. Cst.

Hurley said that information was significant to him and his team because they suspected, based on source information, that Mr. Hickey and Mr. Osso had an out-of-town supplier. Cst. Hurley asked Det. Cst. Fairbairn for a copy of the surveillance report, which he received on May 7, 2018. [ 97 ] The surveillance report included the license plate number of the black F-150. Cst. Hurley ran the plate number through PROS, the RCMP main database, on May 7, 2018. He learned that the plate was associated to a Jason Spurrell, out of Montreal, Québec. Cst. Hurley queried Mr.

Spurrell on PROS and learned that he had been stopped within the previous 12 months by RCMP members in New Brunswick, and found in possession of 3.6 kilograms of cocaine in his vehicle. Mr. Spurrell told the investigating officer that he was on his way to Halifax to visit his father. Cst. Hurley said that further queries of Mr. Spurrell on PROS associated him with Jeffrey Colegrove; they were both listed as individuals involved in drug trafficking on a separate matter. That was how Mr. Colegrove came to be suspected as a potential supplier for Mr. Hickey and Mr. Osso. [ 98 ] As to his next steps, Cst.

Hurley could see that Mr. Spurrell had pleaded guilty to the charges and had already been sentenced, so he contacted CSC to find out where Mr. Spurrell was incarcerated. He sent an email to Bonnie Anderson at CSC who put him in touch with Michael Theriault, an SIO at the Dorchester Penitentiary minimum security facility where Mr. Spurrell was incarcerated. Cst. Hurley asked SIO Theriault for a copy of Mr. Spurrell’s call logs and inmate phone contact list. Next, Cst. Hurley learned from CPIC that Mr. Colegrove was also incarcerated. To find out where, he contacted Det. Cst.

Jason Shannon, an HRP officer who was responsible for monitoring persons who are on parole or serving federal sentences. He advised that Mr. Colegrove was incarcerated at Donnacona in Québec. Cst. Hurley then contacted SIO Theriault again and asked if he had the contact information for the SIOs at Donnacona. SIO Theriault forwarded the message on to the SIOs at Donnacona and Cst. Hurley came into contact with SIO Stéphane Deschênes. [ 99 ] Cst. Hurley testified that he and SIO Deschênes exchanged some emails and eventually spoke on the phone on May 15, 2018.

SIO Deschênes had said in one of his emails that Jeffrey Colegrove was planning to do some business in Halifax, so, during their phone call, Cst. Hurley asked SIO Deschênes what he meant by that comment. SIO Deschênes explained that they had an investigation into Mr. Colegrove for potentially trafficking cannabis resin within the institution and they had been recording all of his voice calls since March 23, 2018. SIO Deschênes said he listened to a call on May 7, around 9:00 pm, where Mr. Colegrove and an unknown male named Billy were discussing sending someone out to Halifax.

There were several different names proposed, and they were discussing the reasons they liked some people and not others for making the trip to Halifax. [ 100 ] SIO Deschênes explained to Cst. Hurley that he had initially obtained a 30-day authorization from his DW to record the calls, and he had since gotten two separate 15-day extensions. The second extension would expire on May 18, 2018. SIO Deschênes told Cst. Hurley that he would require a judicial authorization to turn the recordings over to the RCMP.

[ 101 ] Cst. Hurley said he then directed one of his team members, Cst. John Maillet, to prepare an affidavit to obtain a production order to have SIO Deschênes turn the data over to the RCMP. Cst. Maillet was a new member in the unit and he had no experience preparing a judicial authorization. Cst. Hurley said that since this would be a “pretty straightforward” one, they used it as a developmental opportunity for Cst. Maillet. Cst. Hurley sat with Cst.

Maillet while he drafted the affidavit, verbally reciting the information that he had learned from his investigation so far to justify their reasonable grounds to obtain the data from SIO Deschênes . Cst. Hurley believed that another officer reviewed the draft production order before it was submitted to the judge. [ 102 ] The production order was put before a judge on May 18, 2018, and it was granted. Cst.

Duane Roul was tasked with making contact with SIO Deschênes, giving him a copy of the production order, clearly articulating what the RCMP were looking for from him, and arranging for the data to be transported from Donnacona to RCMP headquarters in Dartmouth. [ 103 ] In the end, it was decided that an RCMP officer in Québec would travel to Donnacona to pick up a data stick containing all the voice call recordings and prisoner call logs, and send it by courier to Dartmouth. It was received in Dartmouth by one of the investigative team members who took it to the Special “I” Unit, which then imported the data.

Cst. Hurley explained that the Special “I” Unit is the RCMP’s technical surveillance unit, which is specifically trained to handle wiretaps and other electronic surveillance techniques. They are responsible for all the special technical investigations for every unit in the province. [ 104 ] Cst. Hurley testified that during his five years working at RCMP headquarters in Dartmouth, he worked with the Special “I” team on a daily basis. He had also worked with them during the four years before that, when he worked in the Halifax Integrated Drugs Unit. [ 105 ] Cst.

Hurley said he had no physical role in the transfer of the thumb drive to the Special “I” Unit. The Special “I” Unit manually imported the calls into the same system used for intercepting phone calls pursuant to a

Part VI wiretap. Cst. Hurley explained that the recordings would then be reviewed by a group of civilian monitors. The civilian monitors are employees of the Special “I” Unit and a separate entity from the investigators. The monitors listen to all the calls and vet out anything that’s privileged, including solicitor-client conversations, to ensure that those communications are never provided to police investigators. The remaining data is then released to the investigators for their review. [ 106 ] Cst.

Hurley testified that he was not made aware if there were any solicitor-client calls processed by Special “I” Unit in this case, and no solicitor-client calls were given to the investigation team. [ 107 ] On cross-examination, Cst. Hurley agreed that before contacting Michel Theriault, after three weeks of investigating Mr. Hickey and Mr. Osso, the only information he had to connect Mr. Colegrove to the investigation was the fact that a year prior, a Québec license plate was identified by another investigative team. Cst. Hurley later added, however, that there was a link between Mr. Colegrove and Mr.

Spurrell, who had been stopped with 3.6 kg of cocaine the previous year. He said he had done many drug investigations and, based on his experience, people involved in drug trafficking typically don’t change their supply lines unless there is some major disruption in their network. Counsel for Mr. Colegrove objected to this statement as inadmissible opinion, and I agree. [ 108 ] When asked if he was aware that Mr. Colegrove had been incarcerated since 2015, Cst. Hurley said he could not say for certain, but he knew that he had been in prison since at least 2017.

He said he did not make any inquiries about the date that Mr. Colegrove was first incarcerated. [ 109 ] Defence counsel asked Cst. Hurley whether he would agree that, before contacting SIO Deschênes at Donnacona, he did not have reasonable grounds to apply for a judicial authorization of any kind for Mr. Colegrove. Cst. Hurley said he would agree with that statement. He also agreed that the information regarding the May 7, 2018 phone conversation about sending someone to Halifax was reproduce

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