R. v. Caines (J.M.) et al., (2011) 518 A.R. 227 (QB)

• Judge: Greckol, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 13, 2011
• Citations: (2011), 518 A.R. 227 (QB);2011 ABQB 692

R. v. Caines (J.M.) (2011), 518 A.R. 227 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. NO.121

Her Majesty the Queen v. Jeffrey Mark Caines, John Reginald Alcantara and Alan Peter Knapczyk (accused)

(070060157Q1; 2011 ABQB 692)

Indexed As: R. v. Caines (J.M.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Greckol, J.

November 10, 2011.

Summary:

Alcantara, Knapczyk and Caines were jointly charged with conspiracy to traffic in cocaine and trafficking. Alcantra and Knapczyk were also jointly charged with a criminal organization offence. The charges stemmed from a joint forces police investigation ("Koker A") during the course of which the police obtained five authorizations to intercept private communications. Caines was severed from the indictment and the charges against him were resolved before another judge. Alcantra and Knapczyk applied for a stay of the proceedings. They claimed that the police conduct in failing to comply with live monitoring requirements of the wiretap authorizations, the Crown's conduct in terms of disclosure of that issue, and the Crown's failure to bring the various conflicts of interest regarding Chadi (the former counsel for Caines and Knapczyk) to the attention of the court, amounted to an abuse of process and impaired their fair trial interests under s. 7 of the Charter. At the heart of the accused's motion was the question of the extent to which the RCMP and the Public Prosecution Service of Canada (PPSC) knew or suspected that use of the "put-away" feature to park and record calls was contrary to the condition in the wiretap authorizations requiring live monitoring.

The Alberta Court of Queen's Bench found that the Crown was complicit in the continued representation of Knapczyk and Caines by Chadi while he was in a conflict of interest position; the PPSC and RCMP breached their obligation to make full and frank disclosure to the authorizing judge; the RCMP breached the live monitoring condition in the implementation of the wiretap authorizations; Alberta Special "I" systemically breached live monitoring conditions after the Koker investigation; and the RCMP failed to disclose the put-away issue in a timely fashion. The court held that the conduct of the PPSC and RCMP amounted to conduct of a nature that tended to undermine society's expectations of fairness in the administration of justice. The court concluded that there had been abuse of process in breach of s. 7 of the Charter, but a stay of proceedings was not warranted. The interceptions in breach of the live monitoring condition would be excluded from evidence.

Civil Rights - Topic 1373

Security of the person - Police surveillance - Interception of private communications - [See Civil Rights - Topic 3157.4 ].

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - Alcantara, Knapczyk and Caines were jointly charged with conspiracy to traffic in cocaine and trafficking - Alcantra and Knapczyk were also jointly charged with a criminal organization offence - The charges stemmed from a joint forces police investigation ("Koker A") during which the police obtained five authorizations to intercept private communications - Caines was severed from the indictment and the charges against him were resolved before another judge - Alcantra and Knapczyk applied for a stay of the proceedings - They claimed that the police conduct in failing to comply with live monitoring requirements of the wiretap authorizations, the Crown's conduct in terms of disclosure of that issue, and the Crown's failure to bring the various conflicts of interest regarding Chadi (the former counsel for Caines and Knapczyk) to the attention of the court, amounted to an abuse of process and impaired their fair trial interests under s. 7 of the Charter - At the heart of the accused's motion was the question of the extent to which the RCMP and PPSC knew or suspected that use of the "put-away" feature to park and record calls was contrary to the condition in the wiretap authorizations requiring live monitoring - The Alberta Court of Queen's Bench found that the Crown was complicit in the continued representation of Knapczyk and Caines by Chadi while he was in a conflict of interest position; the PPSC and RCMP breached their obligation to make full and frank disclosure to the authorizing judge; the RCMP breached the live monitoring condition in the implementation of the wiretap authorizations; Alberta Special "I" systemically breached live monitoring conditions after the Koker investigation; and the RCMP failed to disclose the put-away issue in a timely fashion - The court held that the conduct of the PPSC and RCMP amounted to conduct of a nature that tended to undermine society's expectations of fairness in the administration of justice - The court concluded that there had been abuse of process in breach of s. 7 of the Charter, but a stay of proceedings was not warranted - The interceptions in breach of the live monitoring condition were excluded from evidence.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 3157.4 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 253

General principles - Abuse of process - What constitutes - [See Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 5273.1

Evidence and witnesses - Interception of private communications - Minimization - [See first Criminal Law - Topic 5286 ].

Criminal Law - Topic 5274.5

Evidence and witnesses - Interception of private communications (incl. video surveillance) - Application for - Evidence in support - The accused (Alcantara and Knapczyk) were jointly charged with conspiracy to traffic in cocaine, trafficking, and a criminal organization offence - The charges stemmed from a joint forces police investigation ("Koker A") during which the police obtained five authorizations to intercept private communications - The accused applied for a stay of the proceedings alleging an abuse of process that impaired their fair trial interests under s. 7 of the Charter - The accused relied on, inter alia, the police conduct in failing to comply with live monitoring requirements of the wiretap authorizations and the Crown's conduct in terms of disclosure of that issue - At the heart of the accused's motion was the question of the extent to which the RCMP and PPSC knew or suspected that use of the "put-away" feature to park and record calls was contrary to the condition in the wiretap authorizations requiring live monitoring - The Alberta Court of Queen's Bench concluded, inter alia, that there had been a breach of the obligation on the PPSC and RCMP to make full and frank disclosure to the authorizing justice - The court stated that "... the PPSC agents and affiant did not advise the authorizing justice that staff shortages at Edmonton Special 'I' meant that implementation based on a strict or literal interpretation of a live monitoring condition could not be observed and, therefore, it was proposed that the authorization not require live monitoring 'on an ongoing basis.' The authorizing justice should have been so advised when the wiretap authorizations were obtained in Project Koker. Had this occurred, he would have had the opportunity to reflect on whether he wished to provide his imprimatur to the process proposed or otherwise modify the live monitoring condition to accord with the reality on the ground. In the result, there was no judicial authority to implement the condition by putting away intercepted communications while still recording them" - See paragraph 263.

Criminal Law - Topic 5286

Evidence and witnesses - Interception of private communications - Authority for - Scope of - The Alberta Court of Queen's Bench considered the different legal interpretations which had been ascribed to wiretap authorization conditions requiring live monitoring - The court stated that "I adopt the interpretation given to the term in Welsh and Ansari. O'Connor J in Welsh at para 40 found that the term means 'listening to and monitoring all intercepted communications as and when they are being made.' In Ansari at para 30, Dawson J concluded that it means 'listened to without interruption.' ... A wiretap authorization that includes a requirement for 'live monitoring' of intercepted communications means just that: a person must monitor or listen to the conversation while it is live. The condition is intended to minimize state intrusion into the private conversations and private lives of citizens. Live monitoring assures that only communications involving those persons who are court-authorized targets will be subject to state interception and recording, and then only in the fashion prescribed by law. Live monitoring means monitoring in the moment that the call takes place" - See paragraphs 218 to 219.

Criminal Law - Topic 5286

Evidence and witnesses - Interception of private communications - Authority for - Scope of - [See Civil Rights - Topic 3157.4 ].

Words and Phrases

Live monitoring - The Alberta Court of Queen's Bench considered the meaning of the term "live monitoring" in the context of an authorization to intercept private communications - See paragraphs 218 to 219.

Cases Noticed:

R. v. Ansari - see R. v. A.A.

R. v. A.A., [2010] O.T.C. Uned. 1316; 224 C.R.R.(2d) 288; 2010 ONSC 1316 (Sup. Ct.), consd. [para. 39].

R. v. Thompson et al., [1990] 2 S.C.R. 1111; 114 N.R. 1, refd to. [para. 104].

R. v. Finlay and Grellette (1985), 11 O.A.C. 279; 52 O.R.(2d) 632 (C.A.), leave to appeal denied (1986), 65 N.R. 159; 54 O.R.(2d) 509 (S.C.C.), refd to. [para. 105].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 105].

R. v. Araujo (A.) et al., [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 105].

R. v. Mohamud (A.), [2010] O.T.C. Uned. 6264; 263 C.C.C.(3d) 350; 2010 ONSC 6264 (Sup. Ct.), refd to. [para. 105].

R. v. Peluso, 2010 ONSC 1952, consd. [para. 111].

R. v. Mack, [1988] 2 S.C.R. 903; 90 N.R. 173, refd to. [para. 118].

R. v. Willis (I.I.) (1997), 204 A.R. 161 (Prov. Ct.), refd to. [para. 122].

R. v. Conway, [1989] 1 S.C.R. 1659; 96 N.R. 241; 34 O.A.C. 165, refd to. [para. 123].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277, refd to. [para. 123].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 123].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 124].

R. v. Matthiessen (C.B.) (1999), 228 A.R. 391; 188 W.A.C. 391 (C.A.), refd to. [para. 124].

Canada (Minister of Citizenship and Immigration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [paras. 124, 185].

R. v. Pearson (E.), [1992] 3 S.C.R. 665; 44 N.R. 243; 52 Q.A.C. 1, refd to. [para. 126].

R. v. Knight (G.) (2008), 281 Nfld. & P.E.I.R. 269; 863 A.P.R. 269; 241 C.C.C.(3d) 353; 2008 NLCA 67, refd to. [para. 126].

R. v. Sapara. (J.) et al. (2002), 313 A.R. 201; 2002 ABQB 321, refd to. [para. 137].

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, refd to. [para. 140].

R. v. Duarte - see R. v. Sanelli, Duarte and Fasciano.

R. v. Smith (C.J.) et al. (1991), 93 Nfld. & P.E.I.R. 198; 292 A.P.R. 198 (Nfld. T.D.), refd to. [para. 148].

R. v. Shalala (R.) (1997), 198 N.B.R.(2d) 93; 506 A.P.R. 93 (T.D.), refd to. [para. 149].

R. v. Scarpino, [1998] B.C.J. No. 1563 (Prov. Ct.), refd to. [para. 154].

R. v. Ng (G.P.), [2001] O.T.C. Uned. 268; 49 W.C.B.(2d) 330 (Sup. Ct.), refd to. [para. 155].

R. v. Ng (G.P.), [2003] O.A.C. Uned. 183; 57 W.C.B.(2d) 374 (C.A.), refd to. [para. 155].

R. v. Welsh (J.) et al., [2007] O.T.C. Uned. 682 (Sup. Ct.), refd to. [para. 156].

R. v. Hurley, 2009 ONCJ 342, refd to. [para. 157].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 175].

R. v. Nixon (O.) (2011), 417 N.R. 274; 502 A.R. 18; 517 W.A.C. 18; 2011 SCC 34, refd to. [para. 181].

R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296; 65 Sask.R. 122, refd to. [para. 182].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 183].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 189].

R. v. Bond (W.C.) (1993), 135 A.R. 329; 33 W.A.C. 329 (C.A.), leave to appeal refused, [1993] 3 S.C.R. v; 164 N.R. 77; 162 A.R. 139; 83 W.A.C. 139, refd to. [para. 190].

R. v. Haimour (M.Z.) (2011), 502 A.R. 395; 517 W.A.C. 395; 2011 ABCA 143, refd to. [para. 193].

R. v. X.Y. (2011), 280 O.A.C. 165; 105 O.R.(3d) 433; 2011 ONCA 258, refd to. [para. 194].

R. v. Knight, (2010), 79 C.R.(6th) 39; 2010 ONCJ 400, refd to. [para. 195].

R. v. Bjelland (J.C.), [2009] 2 S.C.R. 651; 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 197].

R. v. Jones (R.) (2011), 285 O.A.C. 25; 2011 ONCA 632 (C.A.), refd to. [para. 198].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 1].

Authors and Works Noticed:

Cohen, Stanley A., Invasion of Privacy: Police and Electronic Surveillance in Canada (1983), p. 174 [para. 142].

Counsel:

Martha M. Devlin, Q.C. (Public Prosecution Service of Canada), for the Crown;

A. Clayton Rice (Ouellette Rice), for the accused, John Alcantara;

Simon Renouf, Q.C., for the accused, Alan Knapczyk.

This application was heard on October 13, 2011, before Greckol, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on November 10, 2011.