R. v. Pazder (P.F.) et al., 2015 ABQB 493

• Judge: Germain, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 16, 2015
• Citations: 2015 ABQB 493;[2015] A.R. TBEd. AU.061

R. v. Pazder (P.F.), [2015] A.R. TBEd. AU.061

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2015] A.R. TBEd. AU.061

Her Majesty the Queen (Crown) v. Paul Frances Pazder, Trevor Scott Stojan and David William Dawson (accused)

(110457645Q1; 2015 ABQB 493)

Indexed As: R. v. Pazder (P.F.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Germain, J.

July 31, 2015.

Summary:

In 2009, the Edmonton Royal Canadian Mounted Police (RCMP) created a drug enforcement project called Project Khemistry. Pazder came to their attention. The RCMP began various surveillances and investigations, ultimately leading to applications for a series of production orders (Criminal Code, s. 487.012), search warrants (s. 487), general warrants (s. 487.1), and a Criminal Code Part VI wiretap authorization. The information obtained from the resulting searches and other investigations led the RCMP to conclude that they had sufficient evidence to prosecute Pazder and his associates Stojan and Dawson. Pazder, Stojan and Dawson, were collectively facing nine charges under the Criminal Code and the Controlled Drugs and Substances Act. The trial was divided into two segments, the first relating to Charter issues. Dawson sought an order for further and better disclosure and argued the execution of a general search warrant at his residence violated his s. 10 Charter rights (i.e., his right to counsel). Pazder and Dawson applied to exclude certain text messages obtained from a telephone service provider (TELUS), through the use of a production order authorized under s. 487.012 of the Criminal Code to capture and preserve computer data. The accused argued that text messages, even historic ones that were stored by a third party to the communication, required compliance with Part VI, of the Criminal Code: "Invasion of Privacy". Part VI set the procedures and safeguards where law enforcement sought to intercept private communications between parties. The accused claimed that the ruling in the R. v. Telus Communications Co. (SCC 2013) decision prohibited the law enforcement authorities from using text messages obtained through the procedure in Criminal Code, s. 487.012. They argued that the fact these were text messages meant that their acquisition by law enforcement was an "interception", and fell under Part VI. Stojan, argued that a general warrant issued to allow police to stop and search his vehicle violated his s. 8 Charter rights. He challenged the legality of the warrant and alleged that the procedure used violated his rights. The court also was called upon to deal with related issues.

The Alberta Court of Queen's Bench held that no further disclosure was required and dismissed Dawson's disclosure application. The court stated that an applicant had to establish "a basis" that some relevant disclosure had been excluded. The evidence led in this voir dire did not approach any standard that would justify further disclosure, or a conclusion that a Charter breach occurred due to a lack of disclosure. "By contrary assessment, the disclosure was probably excessive and much irrelevant disclosure occurred, by erring on the side of disclosure. However, this is the nature of the modern obligation created by Stinchcombe. Justice Sopinka in that judgment (at para 20) is explicit, '... the Crown must err on the side of inclusion ... ' There is only an 'initial obligation' to separate 'the wheat from the chaff'." As to the search of Dawson's residence, the court held that Dawson failed to provide sufficient evidence to establish that the search was conducted inappropriately or that his right to counsel was violated. Even if the court was wrong in its finding, the court held that the evidence should not be excluded under s. 24(2) of the Charter as the police acted in good faith, obtained judicial authorization for the search and the evidence would have been found irrespective of any of the Charter breaches asserted by Dawson. As to the application by Dawson and Pazder to exclude the text messages, the court held that the RCMP did not breach any Charter rights in obtaining the text messages from Telus through use of a Criminal Code, s. 487.012(1) production order. The court noted that these messages were stored communications of a historic nature. Such production orders could be utilized to obtain electronic data stored on a computer. The court stated that it did not believe that the R. v. Telus decision from the Supreme Court of Canada could be stretched to cover an after-the-fact request for production of historic records. The dismissal of the application to exclude the text messages, led to a further application by Pazder to argue that the production order violated his s. 8 Charter rights. The court ruled first that Pazder had standing to challenge the production order and could cross-examine the affiant who swore the information to obtain the order. On the merits, the court ruled that the production order was valid and the evidence obtained from it could be used by Crown attorneys at trial in their discretion. As to Stojan's claim that his rights were violated, the court held that his s. 8 rights were violated in the search of his vehicle on September 6, 2010. He was not properly informed of the true and complete reason for his arrest when he was stopped, nor was he provided a copy of the general warrant that permitted the procedure used. The court noted that counsel had agreed to defer the final determination of whether the breach of Stojan's Charter rights should result in the evidence obtained in that search as being inadmissible until later in the trial. As a preliminary matter, the court also dealt with an application by Stojan under s. 650(2)(b) of the Criminal Code, for leave to allow both him and counsel to be absent during most of the pre-trial voir dires. The court set out the factors to be considered in exercising its discretion to issue an order allowing the accused to be absent from trial. Such an application should include a written waiver from counsel. The court set out what such a waiver should contain. In this case, after considering the applicable factors, the court declined to allow both Stojan and his counsel to be absent, but allowed Stojan to be absent with conditions as long as his lawyer was at least represented by an agent.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police (incl. computers, cellphones, social media messages or digital cameras) - See paragraphs 83 and 84, 99 to 122 and 148 to 185.

Civil Rights - Topic 1556

Property - Land - Search or seizure of private residence - See paragraphs 65 to 98.

Civil Rights - Topic 1609

Property - Search warrants - To search computers or cellphones - See paragraphs 83 and 84.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - See paragraphs 65 to 98.

Civil Rights - Topic 1657.1

Property - Search and seizure - Search with warrant - Motor vehicles - See paragraphs 186 to 230.

Civil Rights - Topic 3137

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to be present at trial - See paragraphs 231 to 280.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - See paragraphs 8 to 59.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - See paragraphs 8 to 59.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - See paragraphs 63 to 82.

Civil Rights - Topic 4613

Right to counsel - General - Requirement of arrest or detention and notice of reasons for - See paragraphs 63 to 82.

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - See paragraphs 123 to 142.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - See paragraphs 86 to 98.

Courts - Topic 87

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Provincial courts - See paragraphs 113 and 114.

Criminal Law - Topic 127

Rights of accused - Right to be present at trial - See paragraphs 231 to 280.

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - See paragraphs 8 to 59.

Criminal Law - Topic 137

General principles - Rights of accused - Right to cross-examine - See paragraphs 143 to 147.

Criminal Law - Topic 3017

Special powers - Third party preservation and production orders - Computer data (incl. text messages) - See paragraphs 99 to 122.

Criminal Law - Topic 3054

Special powers - Search warrants - Execution of - General - See paragraphs 186 to 230.

Criminal Law - Topic 4576

Procedure - Conduct of trial - Order allowing accused to be absent during all or part of trial - See paragraphs 231 to 280.

Counsel:

Adam Halliday (Justice Canada), for the Crown;

Michelle Daneliuk (Daneliuk Law), for the accused, P.F. Pazder;

D'Arcy DePoe (DePoe & Bottos), for the accused, T.S. Stojan;

Gordon W. Collins and Tim McRory (Gordon W. Collins Professional Corporation), for the accused, D.W. Dawson.

This matter was heard in Edmonton, Alberta, on May 27 to June 26, September 28 and October 16, 2015, before Germain, J., of the Alberta Court of Queen's Bench, who delivered the following decision on July 31, 2015.