HIS MAJESTY THE KING - v. -, 2022 SKKB 235

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 235 Date: 2022 10 25 Docket: CRM-RG-00275-2021 Judicial Centre: Regina ___________________________________________________________________________ BETWEEN: HIS MAJESTY THE KING - and - SHARON FOX PUBLICATION RESTRICTION: Pursuant to ss. 645(5) and 648 of the Criminal Code , no information regarding any portion of the trial taking place in the absence of the jury may be published in any document or broadcast or transmitted in any way until the jury retires to consider its verdict.

The Publication Restriction has been lifted pursuant to the judge’s order of November 2, 2022 Counsel: Katharine L. Grier, K.C. for the Crown Mark Brayford, K.C. and Brian R. Pfefferle for the accused ___________________________________________________________________________ RULING ROTHERY J.

October 25, 2022 ___________________________________________________________________________ Introduction [ 1 ] Sharon Fox [Fox] stands charged with wilfully attempting to obstruct, prevent or defeat the course of justice by interfering in an ongoing police investigation, contrary to s. 139(2) of the Criminal Code , RSC 1985, c C-46 . The evidence which forms the basis of this charge is the first 2 minutes and 25 seconds of a telephone conversation between her and Andrew Young [Drew] captured on a wiretap authorization granted October 9, 2019 pertaining to Drew and others.

At the time of the wiretap interception on

October 21, 2019, Fox was Drew’s lawyer. [2] In this pre-trial application, defence argues that the contents of the first 2 minutes and 25 seconds of recordedconversation [Intercepted Conversation] ought to be rendered inadmissible at the pending jury trial set for December 2022.

Defenceapplies for an exclusion of the Intercepted Conversation on the basis that it has been obtained pursuant to a breach of Fox’s protectionsunder s. 8 of the Canadian Charter of Rights and Freedoms, that being the violations by the police of the terms and conditions set out inthe Authorization to Intercept Communications and Related Orders and Warrants granted October 9, 2019 (and amended October 25,2019) [Authorization].

Furthermore, defence argues that, because the court has ordered the remaining 4 minutes and 15 seconds of theconversation between Fox and Drew are subject to solicitor-client privilege, Fox is denied a fair hearing and her s. 7 and 11(

d) rightsunder the Charter are violated. [3] The initial onus is upon Fox to prove on a balance of probabilities that her Charter rights have been infringedor denied. See: R v Collins, (SCC), [1987] 1 SCR 265 at 277. There is no issue that Fox has standing to advance thisapplication.

See: R v Stensrud and Smith (G.W.) (1986), (SK KB), 52 Sask R 287 (QB). [4] Defence acknowledges that reasonable notice of the provisions of s. 189(5) of the Criminal Code have beencomplied with, and that it has received the information from Crown as required by s. 189(5). [5] Defence further acknowledges that the adjournment of this application has allowed the Crown an opportunityto provide all the requested disclosure surrounding the Authorization and supporting technical information. Defence is satisfied with thedisclosure. [6] The Crown acquired the evidence from the Intercepted Conversation as follows.

Upon obtaining theAuthorization on October 9, 2019, the RCMP monitoring from the Regina Police Service location, and the civilian monitors workingunder the direction of Detective Sgt. Parisien in the Saskatoon Police Service, began their wiretap surveillance of Drew, Kyra Gessner[Gessner] and others, in relation to a drug trafficking investigation. [7] The Authorization provided the following terms and conditions pertaining to solicitor-client privilege: 6. It is further ordered that: Terms and Conditions in relation to solicitor-client privilege a.

No communications may be intercepted at the office or residence of a solicitor, or at any other place ordinarily used by solicitors forthe purpose of consultations with clients; and b. When a monitor reasonably believes that a solicitor is a party to a communication, intercepted at any place or over any device, themonitor must discontinue the interception. At reasonable intervals, the monitor may resume the interception for the purpose ofdetermining whether the solicitor remains a party to the communication.

When communications have been intercepted while onautomatic monitoring, the monitor who subsequently reviews the communication must cease reviewing the communication as soon asthe monitor reasonably believes that a solicitor is a party to the communication, but may monitor the communication by reviewing atreasonable intervals for the purpose of determining whether the solicitor remains a party to the communication. No person shall accessany communication to which a solicitor is a party that is recorded pursuant to this authorization except as authorized by this Court.

Provided however, that in the event that a communication or communications have been intercepted and to which access has beendenied pursuant to this paragraph, and it is reasonably believed that a communication may not be subject to solicitor-client privilege, thenthe communication or communications may be submitted to this Court for an ex-parte determination whether access will be allowed toany of the communications. Terms and Conditions Relating to Live Monitoring c.

Live visual surveillance or live audio monitoring shall accompany all interceptions at the places referred to in paragraph 4b and 4d.The interception of a communication must be discontinued once it has been determined that none of the persons in paragraph 3a is aparty to it. However, interception may be resumed at reasonable intervals to determine whether such a person has become a party to thecommunication. If so, then the interception may continue; d.

The interception of non-oral telecommunications including, but not limited to, pagers, SMS (text messaging), faxes, electronic mail,peer-peer messaging, computer modems is not subject to live visual surveillance or live audio monitoring. (emphasis added) [8] Detective Sgt. Parisien, administrator of the Saskatchewan Provincial Intercept Program [SPIP], explained theinformation included in the session history reports pertaining to the Authorization.

From a review of the session history reportdocumented as Session 803, the police intercepted a telephone call from Fox’s cell phone to Drew at 20:39:55 on October 21, 2019. Cpl.Ruetz and Cst. Madill were listening to the incoming telephone call to Drew’s cell phone. Fox identified herself on the call as “SharonFox here from Nychuk and Company”. [9] Cst. Madill then realized that they were listening to a telephone call that may be protected by solicitor-clientprivilege. She was aware that Fox was a defence counsel to other persons who had drug charges. Cst. Madill told Cpl.

Ruetz to stopmonitoring the telephone call from Fox, and they discontinued monitoring the telephone call at 20:40:15, that is, 20 seconds after theystarted listening to Fox’s conversation with Drew. [10] Within seconds of the police monitoring the telephone call in Session 803, Kendra Brown [Brown], one of thecivilian monitors of SPIP located in Saskatoon, started listening to the conversation. Brown started listening at 20:40:23 and stopped

listening at 20:44:12, a time duration of 3 minutes and 49 seconds. [ 11 ] Cst. Madill classified the telephone call in Session 803 as “privileged” at 20:46:55, two minutes later. This “locked” the telephone call from being accessed without specific authorization within SPIP.

On November 16, 2019, the audio content of Session 803 was further “locked” by the civilian monitor supervisor, Rebecca Viczko, with the result that Session 803 could not be accessed by anyone without court order. [ 12 ] Immediately following the end of Session 803, the police intercepted several telephone calls from Drew to various family members. The gist of the intercepted telephone calls was that he wanted someone to check his Estevan house to ensure he was in compliance with the gun storage laws and for someone to remove a Ziploc bag of cash that he said was rent collected.

Drew stated that “there’s a search warrant going down in the next two hours for my place…”. [ 13 ] Sometime in 2020, the federal Crown instructed Cpl. Ruetz to make a copy of Session 803. Cpl. Ruetz states that he did not listen to the contents of Session 803. On December 16, 2020, the federal Crown made an ex-parte application to the court in accordance with paragraph 6(

b) of the Authorization for a determination whether Session 803 is subject to solicitor-client privilege. [ 14 ] Justice Tochor [the ex-parte judge] issued a fiat on December 21, 2020, declaring that the first 2 minutes and 25 seconds of Session 803 is not subject to solicitor-client privilege. The remaining 4 minutes and 15 seconds of Session 803 are subject to solicitor-client privilege.

The ex-parte judge also provided written reasons which he ordered sealed. [ 15 ] In accordance with the order of the ex-parte judge, Session 803 was unlocked and a copy of the first 2 minutes and 25 seconds of Session 803 was placed on a USB. A transcript of the audio of the Intercepted Conversation is as follows: YOUNG: Hello. FOX: Hi, is this Drew? YOUNG: Yup. FOX: Hey Drew, Sharon Fox here from Nychuk and Company, how are you doing? YOUNG: It’s who, sorry? FOX: Can you step out, this is kinda important, can you step out into a quiet place for a second? It’s Sharon Fox call, calling from Nychuk and Company.

YOUNG: It’s who? Here, hold on. FOX: Drew, are you there? YOUNG: Who is this? FOX: Sharon Fox from Nychuk and Company. YOUNG: Oh hey Sharon, what’s up? FOX: Hi, yeah Kyra just got arrested, Kyra Gessner. YOUNG: Okay, yeah. FOX: ‘Kay. Uhm, they’ve arrested her for trafficking and possession for the purpose of trafficking. YOUNG: Okay. FOX: She has been under surveillance. YOUNG: Ah huh. FOX: Um you should know what that means. YOUNG: Okay. FOX: ‘Kay, so she’s been to wherever she’s been to. YOUNG: Okay.

FOX: And they likely, the police will likely be, if they don’t got search warrants yet they will probably be working on one in the next two or three hours. YOUNG: For, okay. For her place? FOX: ‘Kay? No her place is clean. YOUNG: Okay, so where will they be going? FOX: You tell me, you know that

YOUNG: Who, who’s FOX: not me. YOUNG: called you? FOX: Kyra called me. YOUNG: She did? FOX: Yup. She just got pulled over driving, YOUNG: Yup. FOX: she’s got, she’s got nothing on her. YOUNG: Yup. FOX: Nothing in her house, her cars clean. YOUNG: So how did they arrest her for trafficking? FOX: Because they’ve been surveilling her and she’s gone to a place where there has been product located. YOUNG: Okay. FOX: So I suspect based on their surveillance of her they will be, if they haven’t already, they will be drafting a search warrant for wherever places she’s been frequenting. YOUNG: Okay.

FOX: Do you understand? YOUNG: Yup. Thank you Sharon. Is this your cell FOX: ‘Kay YOUNG: number Sharon? FOX: Yes it is. YOUNG: Okay so are you, are you acting for her? FOX: No I’m not yet, I have to be retained first. She just called me, so I was her one call to a lawyer, she called me and asked me to pass the message along. YOUNG: How did ah, how did she get a hold of you? How did she get your number? FOX: Ah I don’t know, ah well the Estevan Police [ 16 ] Based on the Intercepted Conversation, Crown indicted Fox on the obstruction charge.

Crown alleges that the attempt to obstruct justice pertains to Fox counselling Drew to remove or destroy potential evidence in a criminal proceeding. [ 17 ] Defence argues that not only have the police breached the solicitor-client privilege provisions of the Authorization by recording Session 803, they have continued the breaches by reading subsequent text messages between Drew and Fox. Both Crown and defence concede that the solicitor-client privilege belongs to the client, that is, Drew. Thus, any potential breach of subsequent text messages is a potential breach of Drew’s s. 8 Charter rights.

That is a matter for Drew to raise; it is not a matter for the court to consider in this application. [ 18 ] This application is the determination of the potential breach of Fox’s s. 8 Charter rights which stem from Session 803. That is the wiretap interception that potentially affects her privacy rights. [ 19 ] Fox testified at the application that she had been Drew’s lawyer throughout 2018 and 2019, including on October 21, 2019. Fox further testified that she believed that she was ethically bound to convey the information to her client that she had received from Kyra Gessner.

Gessner had asked her to pass the information along to Drew about being arrested. Fox relies on the decision of Hesje v Law Society of Saskatchewan , 2015 SKCA 2 , 451 Sask R 205 , and specifically, paras. 42-43, that reviews the lawyer’s duty to keep a client reasonably informed as being one of the tenets of the Code of Professional Conduct of the Law Society of Saskatchewan. [ 20 ] Fox’s ethical obligations may well become relevant at trial.

However, they are not a factor in the court’s analysis of whether there has been a breach of her s. 8 Charter rights. [ 21 ] Defence argues that the recording of Session 803 should never have been made. The Authorization at paragraph 6(

a) states: “No communications may be intercepted at the office or residence of a solicitor, …”. The problem with this argument is that this interception was not made at Fox’s office or residence. Oppositely, paragraph 6(

b) is applicable. SPIP intercepted an incoming

telephone call to Drew’s cell phone from, at the time, an unknown device. As soon as Cst. Madill realized a lawyer was on the telephonecall, she and Cpl. Ruetz discontinued listening. All of that is in compliance with the Authorization. [22] Defence further argues that SPIP should have all lawyers’ telephone numbers incorporated into the system toalarm the monitors when a lawyer is on the telephone call. That is far too onerous a task, and one that will not assist in protectingsolicitor-client privilege. Lawyers also communicate with their clients using cell phones.

Those telephone numbers are usually unlisted.And, in this case, having an alarm to warn of a telephone call from “Nychuk and Company” would have been no assistance to Fox; sheused an unlisted cell phone. For the purposes of this application, I put little stock in this argument of a potential breach by the police. [23] Defence also submits that Fox, with her cell phone number, should have been listed as a “known” person in theAuthorization. The officer that swore the affidavit in support of the Authorization was aware of her cell number.

Defence submits thatthe police could have blocked all communication from her by stating that in the Authorization. [24] Crown argues that, in law, Fox could not be added to the Authorization as a “known” person. Section 185(1)(e)of the Criminal Code states that the affidavit sworn in support of the Authorization must depose to: 185(1) … (

e) the names, addresses and occupations, if known, of all persons, the interception of whose private communications there arereasonable grounds to believe may assist the investigation of the offence, a general description of the nature and location of the place, ifknown, at which private communications are proposed to be intercepted and a general description of the manner of interception proposedto be used, … See: R v Chesson, (SCC), [1988] 2 SCR 148 at 164. [25] It is obvious that Fox is not a person whom the affiant would believe is a person who may assist in theinvestigation of the offences stated in the Authorization.

There is no breach by the police in not including Fox’s name and cell phonenumber in the Authorization. [26] Defence raises the issue that the monitor, Brown, listened to Session 803 for a total of 3 minutes and 49 secondsbefore she stopped. Defence submits that is in breach of paragraph 6(

b) of the Authorization which states that “when a monitorreasonably believes that a solicitor is a party to the communication, intercepted at any place or over any device, the monitor mustdiscontinue the interception.” [27] Brown testified in this application and has no recollection of what she heard of Session 803. She cannot say whyshe listened to the call for almost four minutes. [28] Defence argues that Brown should have known a lawyer was on the intercepted call when she heard “SharonFox from Nychuk and Company”.

However, a civilian monitor in the Saskatoon office may not know that this Regina firm is actually alaw firm. It could also be the name of another professional organization or a business. [29] It is clear that Brown did hear Fox say to Drew that she had not been retained yet by Kyra Gessner, and this wasGessner’s one call to a lawyer. And it is clear that Brown did not stop monitoring until almost two minutes later. However, I cannot findBrown’s actions anything more than mere inadvertence.

That does not constitute a breach of Fox’s s. 8 Charter rights. [30] In short, having found no breach by the police, it is unnecessary to undertake an analysis of s. 24(2) of theCharter. [31] But the Charter analysis does not end there. Defence also submits that Fox will be denied a fair hearing at trial.Her s. 7 and s. 11(

d) rights under the Charter will be violated if the Intercepted Conversation is not excluded at trial. [32] It is established law that the trial judge may exclude evidence pursuant to s. 24(1) of the Charter if theadmission of such evidence would violate s. 7 of the Charter.

I refer specifically to R v White, (SCC), [1999] 2 SCR417 at para 89, which states: 89 Although I agree with the majority position in Harrer, supra [ (SCC), [1995] 3 SCR 562], that it may not benecessary to use s. 24(1) in order to exclude evidence whose admission would render the trial unfair, I agree also with McLachlin J.'sfinding in that case that s. 24(1) may appropriately be employed as a discrete source of a court's power to exclude such evidence.

In thepresent case, involving an accused who is entitled under s. 7 to use immunity in relation to certain compelled statements in subsequentcriminal proceedings, exclusion of the evidence is required. Although the trial judge could have excluded the evidence pursuant to hiscommon law duty to exclude evidence whose admission would render the trial unfair, he chose instead to exclude the evidence pursuantto s. 24(1) of the Charter.

I agree that he was entitled to do so. [33] Aside from the provisions of s. 24(1) of the Charter, there is an overriding duty upon the trial judge to excludeevidence that would result in an unfair trial. This was succinctly explained by La Forest J. in R v Harrer, (SCC), [1995]3 SCR 562 at paras 21-24 [Harrer], which bears repeating here: 21 I should add that, had the circumstances been such that the admission of the evidence would lead to an unfair trial, I would have hadno difficulty rejecting the evidence by virtue of the Charter.

I would not take this step under s. 24(2), which is addressed to the rejectionof evidence that has been wrongfully obtained. Nor would I rely on s. 24(1), under which a judge of competent jurisdiction has the powerto grant such remedy to a person who has suffered a Charter breach as the court considers just and appropriate. Rather, I would reject theevidence on the basis of the trial judge's duty, now constitutionalized by the enshrinement of a fair trial in the Charter, to exercise

properly his or her judicial discretion to exclude evidence that would result in an unfair trial. 22 I shall, however, attempt to put more flesh on this approach because the argument was strongly advanced that since there was nobreach of the Charter in obtaining the evidence, a prerequisite to the power to exclude evidence under s. 24(2) of the Charter, there wasno Charter based jurisdiction to exclude evidence. The difficulty with this contention is that it fails to appreciate the full nature of a fairtrial.

As I mentioned, while s. 24(2) is directed to the exclusion of evidence obtained in a manner that infringed a Charter right, it doesnot operate until there is a Charter breach. What we are concerned with here is not the remedy for a breach but with the manner in whicha trial must be conducted if it is to be fair. 23 The law of evidence has developed many specific rules to prevent the admission of evidence that would cause a trial to be unfair, butthe general principle that an accused is entitled to a fair trial cannot be entirely reduced to specific rules. In R. v.

Corbett, (SCC), [1988] 1 S.C.R. 670, a majority of this Court made it clear that a judge has a discretion to exclude evidence that would, ifadmitted, undermine a fair trial; see also R. v. Potvin, (SCC), [1989] 1 S.C.R. 525. Similarly, Sopinka, Lederman andBryant, The Law of Evidence in Canada (1992), at p. 401, conclude that "if the admission of certain evidence would adversely affect thefairness of an accused's trial, the evidence ought to be excluded" (emphasis added).

In Thomson Newspapers, supra [(SCC), [1990] 1 SCR 425], I attempted to explain that this approach is a necessary adjunct to a fair trial as guaranteed by s. 11(

d) of theCharter in the following passage, at p. 559: . . . there can really be no breach of the Charter until unfair evidence is admitted. Until that happens, there is no violation of theprinciples of fundamental justice and no denial of a fair trial. Since the proper admission or rejection of derivative evidence does notadmit of a general rule, a flexible mechanism must be found to deal with the issue contextually. That can only be done by the trial judge. I went on to further explain, as I had in Corbett, supra, that the common law principle had now been constitutionalized by the Charter'sguarantee of a fair trial under s. 11(

d) of the Charter. At page 560, I continued: The fact that this discretion to exclude evidence is grounded in the right to a fair trial has obvious constitutional implications. The right ofan accused to a fair hearing is constitutionalized by s. 11(d), a right that would in any event be protected under s. 7 as an aspect of theprinciples of fundamental justice (see R. v. Corbett, per Beetz J., at p. 699, and my reasons, at pp. 744-46; Dickson C.J. does not reallycomment on this issue). 24 The effect of s. 11(d), then, is to transform this high duty of the judge at common law to a constitutional imperative.

As I noted inThomson Newspapers, at p. 563, judges must, as guardians of the Constitution, exercise this discretion where necessary to give effect tothe Charter's guarantee of a fair trial. In a word, there is no need to resort to s. 24(2), or s. 24(1) for that matter.

In such circumstances,the evidence is excluded to conform to the constitutional mandate guaranteeing a fair trial, i.e., to prevent a trial from being unfair at theoutset. [34] Crown asserts that the Intercepted Conversation was ruled not subject to solicitor-client privilege by the ex-parte judge on the basis that it was a communication in which Fox facilitated the commission of an offence, that is, to remove or destroypotential evidence in a criminal proceeding.

Crown relies on Descôteaux v Mierzwinski, (SCC), [1982] 1 SCR 860 atparas 21-22 (WL), which states: 21 The following statement by Wigmore (8 Wigmore, Evidence, para. 2292 (McNaughton rev. 1961)) of the rule of evidence is a goodsummary, in my view, of the substantive conditions precedent to the existence of the right of the lawyer's client to confidentiality: Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to thatpurpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser,except the protection be waived.

Seeking advice from a legal adviser includes consulting those who assist him professionally (for example, his secretary or articlingstudent) and who have as such had access to the communications made by the client for the purpose of obtaining legal advice. 22 There are exceptions. It is not sufficient to speak to a lawyer or one of his associates for everything to become confidential from thatpoint on. The communication must be made to the lawyer or his assistants in their professional capacity; the relationship must be aprofessional one at the exact moment of the communication.

Communications made in order to facilitate the commission of a crime orfraud will not be confidential either, regardless of whether or not the lawyer is acting in good faith. (emphasis added) [35] The Crown’s premise that the ex-parte judge ruled the Intercepted Conversation was not subject to solicitor-client privilege on the basis that it was the exception to the privilege as a result of Fox facilitating the commission of an offence isunreasonable.

If the ex-parte judge had so concluded, he would have been required to rule that the entire Session 803 was not subject tosolicitor-client privilege. [36] However, I do agree with Crown that the principle of judicial comity and horizontal stare decisis requires me todecline to revisit any question as to the ex-parte judge’s characterization of the Intercepted Conversation.

See: R v Sullivan, 2022 SCC 19at paras 65-68, 413 CCC (3d) 447. [37] It is also for this reason that I decline Crown’s suggestion that defence could make an application seeking anorder that I permit access to the privileged portion of Session 803. It has already been determined by my judicial colleague that theremaining portion is subject to solicitor-client privilege; I will not interfere with that characterization. [38] Intention is one of the essential elements of this offence. This is explained by Lane J.A. in R v Nelson, 2016SKCA 127 at para 2, 485 Sask R 249:

2 It is not in dispute s. 139(2) establishes a specific intent offence. Before one can be found guilty of obstructing or attempting to obstruct justice, the Crown must prove beyond a reasonable doubt the accused acted specifically to obstruct justice. A simple error of judgment or an inadequate exercise of discretion does not constitute the requisite mens rea for the criminal offence of obstructing justice ( R v Beaudry , 2007 SCC 5 at para 52 , [2007] 1 SCR 190 ). This Court has repeatedly held the mens rea for obstruction of justice involves proof of an intention to obstruct justice beyond just an intention to do

an act which has the effect of obstructing justice ( see: R v Ross , 2013 SKCA 45 at para 35 , 414 Sask R 108 ; R v Yazelle , 2012 SKCA 91 at para 4 , 399 Sask R 249 ). It is not sufficient that the accused did something or failed to do something which may have some effect on the course of justice.

The accused must have wilfully committed an action or inaction which had a tendency to obstruct or pervert the course of justice and must have intended to obstruct or pervert the course of justice in behaving in this way ( see: R v Easu , 2009 SKCA 31 at para 48 , 324 Sask R 95 and R v Alsager , 2016 SKCA 91 at paras 45-57 ). The situation Fox finds herself in is that, because of the solicitor-client privilege, she is unable to mount a full answer and defence to the charge.

She has no access to the remaining 4 minutes and 15 seconds of conversation with her client. [ 39 ] Crown submits that, on the basis of R v McClure , 2001 SCC 14 , [2001] 1 SCR 445 [ McClure ] , and R v Brown , 2002 SCC 32 , [2002] 2 SCR 185 [ Brown ] , Fox would be able to apply to the trial judge at the conclusion of the Crown’s case for an order that the solicitor-client privilege attached to Session 803 ought to be lifted. [ 40 ] McClure and Brown are of no assistance to Fox. First of all, those cases are inapplicable to this criminal charge.

They refer to the resolution of the contest between an accused’s right to full answer and defence and a complainant’s right to the privilege. Here, it is Fox’s own obligation as the solicitor in a situation of solicitor-client privilege that is relevant. Section 189(6) of the Criminal Code bars Fox from betraying that privilege. [ 41 ] Section 189(6) of the Criminal Code states: 189 …

(6) Any information obtained by an inter ception that, but for the interception, would have been privileged remains privileged and inadmissible as evidence without the consent of the person enjoying the privilege. [ 42 ] In short, Fox is unable to access the remainder of Session 803 in her defence. I must exercise my judicial discretion to exclude evidence that would result in an unfair trial.

As stated in Harrer at para 24 , “evidence is excluded to conform to the constitutional mandate guaranteeing a fair trial, i.e., to prevent a trial from being unfair at the outset.” [ 43 ] To ensure trial fairness, the Intercepted Conversation must be excluded. It is inadmissible at trial. [ 44 ] Order accordingly. J. A.R. ROTHERY