October 21, 2008

Mr. S. Caramanna, for the accused

Mr. A. Maini for [REDACTED]

Mr. D. Steinberg for [REDACTED]

Mr. P. De Julio for [REDACTED]

Ms. J. Mulcahey for [REDACTED]

Ms. Sheila Schweizer for Durham Police Service

Ms. Glynnis Evans for R.C.M.P.

Mr. George Cowley for Toronto Police Service.

[REDACTED] not represented.

J. Campitelli, M. Gsapar, for the Crown

Released: October 21, 2008

[REDACTED]

R U L I N G

[REDACTED]

Outline of Crown's case.

[1.] February 13, 2006, Canada Border Services Agency employee, Carrie Ann Warren, placed a lookout on a shipment of "metal display" consigned to New Asia Food Center, 26 Kenedy (sic) Rd. N., in Brampton, Ontario, from Panama. It was scheduled to arrive at Toronto International Airport at 6:10 PM on that day. Waybill # 649-20009021.

[2.] Police located the shipment at Cargo Zone. Inspection revealed that 2 of the 18 boxes in the shipment contained a total of 35 bricks of cocaine. Total weight 34.9 kg (76.68 lbs.), or 34,400 g. (1,228.5 oz.)

[3.] February 14, 2006, police seized the cocaine and replaced the drug with an inert substance. A small sample of cocaine was placed in each of the substituted boxes.

[4.] The substituted shipment was returned to Cargo zone for pick up. Peel Regional Police placed the cargo under surveillance. An undercover Toronto police officer, Detective Carey Norman, posed as a Cargo Zone employee and called the number on the waybill. He advised the

shipment was ready for pick up and had charges to be paid of $59.52.

[5.] February 14, 2006, [REDACTED] arrived with a U-Haul truck with Arizona plates and, apparently unable to pay the "charges", departed to a nearby Tim Horton's to make a pay phone call. He met an unknown male and got some money with which to pay the charges. [REDACTED] returned to Cargo Zone and tendered a letter of authority from one Jim Anderson authorizing him to pick up the shipment mentioned in the waybill. He did so.

[6.] [REDACTED] was followed to the Holiday Inn off Dixon Road. A red VW Golf, (AXCK 613) traveled in tandem with the U-Haul. Police suspect that the driver of the red VW was conducting counter-surveillance. An hour later, [REDACTED] stopped the shipment on Newcastle St. in Toronto.

He was then being followed by a black Audi (AWFW 387), driven by [REDACTED], passenger, [REDACTED], and a silver BMW, (AMSW 282), driven by [REDACTED].

[7.] [REDACTED] left the U-Haul and walked away.

[8.] Donovan [REDACTED], the passenger in the Audi, began to drive the UHaul. The Audi and the BMW followed.

[9.] [REDACTED] stopped the U-Haul on Harold St. in Toronto a few minutes later. The Audi and BMW followed. When the rear door of the U-Haul was opened, police descended and arrested:

1. Donovan [REDACTED], DOB January 27, 1971, (35) (Passenger Audi, 2d driver U-Haul)

2. [REDACTED] [REDACTED], DOB September 23, 1976, (30), (Driver Audi)

3. [REDACTED], DOB May 17, 1974, (32), (Driver BMW)

4. Hai Thi, found in the rear of the U-Haul, DOB September 9, 1972, (34). He has since pleaded guilty. He received a sentence of 7 years.

5. Nickolas [REDACTED], (Original driver, U-Haul) DOB December 6, 1966, (40) was arrested nearby.

[10.] Police allege that found in the U-Haul, and also in the Audi, and the BMW, were some of the substituted bricks.

[11.] More detail of the Crown theory is contained in the case overview in the application record.1

The Defence theory.

[12.] Obviously anyone would expect police to find the bricks of the substituted cargo in the U-Haul. The defence theory is that, at the preliminary inquiry, careful cross-examination was conducted that clearly demonstrated that the police surveillance of the cargo, between the airport and its eventual destination on Harold St., in Toronto, was "airtight". That is to say, that police observations of the cargo were so careful that no one had any opportunity to tamper with the cargo in the U-haul in such a way that any of it might have found its way to a location outside the U-Haul without being observed. Police did not report any such movement of the cargo. Despite this surveillance, police reported finding some of the substituted bricks in each of the following vehicles occupied by some of the accused. The defence theory is that the bricks of cargo found in the two motor vehicles were planted by police with a view to strengthening the case for possession against the occupants of those vehicles.

[13.] The investigation of this crime was handled by members of the Toronto Airport Drug Enforcement Unit, (TADEU). TADEU is or was a team of police officers made up of members of several regional police forces and of the O.P.P. and R.C.M.P. On July 8, 2008, just before the

trial was scheduled to begin, defence counsel learned by pure coincidence that certain members of TADEU had been placed under 1 Tab A. investigation for misconduct or offences in the nature of obstruction of justice relating to their participation in a major, international drug

investigation, dubbed "E-plug". All parties conceded that the Crown attorneys who were prosecuting this trial were completely unaware of these facts. That misconduct eventually led to abandonment of the investigation.

This application

[14.] As a result of that information, defence counsel have applied to examine third party records in order to ascertain details of the identity and activities of officers who may have been implicated in misconduct in the E-plug investigation and who also were involved in this investigation. Public Prosecution Service of Canada, that was prosecuting this matter, had no such information in its possession in connection with this case and so a simple request for disclosure yielded no results.

[15.] I should mention that all parties have agreed that I conduct the first stage of this inquiry, knowing that, owing to my anticipated absence, some other jurist will have to preside when the time comes to review any records that are ordered produced for the review of the court.

[16.] The custodians of the relevant police records and the officers potentially involved in possible misconduct, other than Constable Boulton, have opposed or argued to limit the disclosure they should be giving. If the Crown is one and indivisible, one might have thought that more might have been achieved by a request for disclosure. It was not.

ordered to make. They cite privacy concerns as now embodied in

certain legislation.

[17.] I make no criticism of the approach taken by opposing counsel who must follow instructions. That said, it should be noted that this motion arises in the wake of the release of the report by Gouge J.A., "Inquiry into Pediatric Forensic Pathology in Ontario". He inquired into

numerous wrongful convictions. Those wrongful and potentially wrongful convictions were secured by neglect or misconduct of a professional forensic witness in the employ of the Crown.

[18.] The highest function of a criminal court is to guard against the possibility of a wrongful conviction. The function of a criminal court to convict and punish the guilty is secondary and follows the former.

[19.] I do not say that Crown law officers have not cooperated with defence in the case at bar. I only observe that it should not only appear, but should be an axiom of Crown conduct, that the Crown will be as anxious as the defence, indeed more anxious, to suppress evidence that may be tainted by police misconduct.

[20.] The duty of law enforcement officers to obey the law in pursuing their duties is paramount. There must be transparency relating to their activities. Legislation respecting privacy aside, it occurs to me that individual officers engaged in the very public duty of law enforcement have a relatively scant expectation of privacy when legitimate inquiry is made into their public activities. Hence, I mentioned to Crown counsel, during argument, that I intended, in making any ruling, to paint with a broad brush.

The facts

[21.] In consequence of the TADEU scandal, E-plug was terminated. Certain of the officers who fell under suspicion in connection with their activities in E-plug also participated in this investigation. One of them, Constable [REDACTED], formerly with the R.C.M.P., pleaded guilty to and was convicted of obstruction of justice that occurred in 2005. The particulars of the offence were that he swore an information in support of a search warrant knowing that it contained false and misleading statements. Those statements were made respecting cargo container that contained drugs. Police had opened that container without a warrant but concealed that fact in the information sworn to obtain a search warrant. Other unlawful acts were suggested such as claiming that photos taken before entry to the container had been taken following it.

[22.] The transcript of the plea proceedings held at Old City Hall, Toronto, December 11, 2007, has been filed. Alas, the transcript is not a complete record of the facts before the court. It appears that the parties to the Boulton plea had prepared an agreed statement of facts that was filed as Ex. 1. to the proceedings. It was not read into the record. In many respects it was alluded to in the submissions, but it was not wholly disclosed by the transcript.

[23.] When defence counsel applied to the court office at Old City Hall in the summer of 2008, to obtain a copy of the exhibit, they were informed that it was the policy of the court to destroy or dispose of exhibits 30 days after disposition of the case, (the period for appeal), and that policy had been followed in connection with Ex. 1. To date defence counsel have been unable to acquire a copy of Ex. 1, although the inference is irresistible that one exists somewhere, if only on the hard drive of a Crown or defence counsel's law office.

[24.] I am bound to say that the rapid destruction or disposal of that exhibit is highly unusual. First of all I question the existence of any court policy that purports to dispose of exhibits in judicial proceedings on the 31st day following disposition. It is well known that leave to appeal late is frequently granted. Yet I do not recall seeing in any recent reported appeal decision that some issue has arisen to confound the appeal by reason of destruction of exhibits, such as, for instance, Intoxilyzer certificates.

[25.] Secondly, even if such an injudicious policy existed, I doubt very strongly that it would be executed with such careful diligence. I sat as a judge of the Provincial Court (Criminal Division) for 15 years, albeit only rarely in Toronto. I never heard of such a policy and I assuredly never

noticed the rapid execution of any such policy. Indeed, the issue of destruction or disposal of trial exhibits 3 only ever became an issue when the storage area for same became too full to accept more. Then, and only then, necessity demanded a cull.

[26.] After my appointment to the District Court and to this court, I well recall the movement of the court from the former County Court building to the current structure. An issue then arose as to disposal of hundreds of exhibits from the old vault, some of them decades old.

[27.] Courts are always stressed for resources, especially personnel. I have never presided in a court where such a plethora of personnel existed that exhibits were regularly culled for age and disposed of. It is possible, to be sure, that space or similar requirements at Old City Hall are such that a policy of prompt disposal of exhibits does, indeed, exist. It may simply be that the exhibit was released to the party who tendered it. After the appeal period, the courts do release exhibits to the owners thereof, if they apply. I should think that a receipt exists somewhere.

[28.] The fact that the applicants should have the complete record of the plea proceedings for their purposes in this application, and do not have it, is a factor that necessitates some latitude being exercised in their favour in the ruling.

[29.] No police officer, except only constable Boulton, has been found guilty of any misconduct in connection with E-plug. Certainly, no such finding has been made in connection with this case. That said, the officers from TADEU who participated in both investigations are, Constable Boulton, Detective Norman and Constable Adair.

[30.] As to Detective Norman, the information is that he retired from service with the Toronto Police Service on February 1, 2007 after completing 31 years and 6 months of service. His retirement was entirely routine. It was completely unconnected with this or any other investigation.

[31.] As to Detective Norman's role in this case, the Toronto Police Service Professional Standards Unit commenced an investigation into allegations of non-criminal misconduct against Detective Norman on March 1, 2006. The investigation concluded September 26, 2006. The file was closed as being "unsubstantiated". No charges under the Police Services Act were contemplated. The Toronto investigation was conducted by making a review of the investigations made by the Durham Police Service and the R.C.M.P. No independent investigation was conducted.

[32.] On July 3, 2008, before the present issues arose, an issue was placed before the court concerning the unavailability of Detective Norman to testify at the time then anticipated for trial. The previous, December 2007, trial date had had to be abandoned owing to this witness being then unavailable, in Hawaii, through no fault of his own. As to the July 2008, attendance, he had apparently raised with the Crown certain urgent "child care" issues which the Crown relayed to the court. Eventually he testified briefly on the issue of his unavailability, or at least, as to the great inconvenience attending to testify would cause to him.

[33.] To be as charitable as possible about Detective Norman's testimony on that issue, I will say only that his testimony was downright evasive. When he was asked why it would be difficult to testify, he gave extremely vague and very unspecific answers. None of them disclosed any real reason not to attend or testify. Eventually he retreated to the position that it would be awkward for him to return to Brampton from his vacation site in "northern Ontario". When he was pressed as to the specific location, he admitted that it was in Peterborough, perhaps a two or three hour drive from the court.

[34.] I could think of no reason why a veteran police officer, with over 30 years of experience, would have taken the stand and would have done everything but lie outright, concerning such a pedestrian matter as being a witness. As I observed him in the stand I was struck by how obvious it was that he actively did not want to testify. That does not enhance my concern for Detective Norman's privacy interests as to his conduct in the discharge of a very public duty.

[35.] Arguments were forcefully addressed to me that Detective Norman had been cleared by the Toronto Police inquiry and that he was entitled to the comfort of that verdict. Counsel argued vigorously that it is not and cannot be the function of this inquiry to reopen other legitimate inquiries that have been properly conducted and concluded in favour of the subject. Naturally I accept this argument.

[36.] However, Detective Norman presumably had the comfort, as well, of knowing that any inquiry into his behaviour gave him the benefit of the doubt or perhaps of the probabilities. While it was the function of those inquiring to find proof of any possible impropriety beyond a

reasonable doubt, or at least on the preponderance of probabilities, the defence has the right, in making full answer and defence in these proceedings simply to raise doubts. Who can say that matters did not arise in the course of the investigations of the Toronto Police Service which, while they did not lead to a finding of misconduct, or justify disciplinary action in the face of a long and otherwise exemplary career, might not have raised a doubt as to the absence of misconduct?

[37.] The judge who reviews the record of the Toronto Police Service inquiry, will not be engaged in reviewing those findings or the determination. The judge will be engaged in reviewing the information discovered by the inquiry, with a view determining whether it discloses evidence of possible impropriety. How could that be objectionable?

[38.] No matter what the reviewing judge finds, it will have no impact on the conclusion of the inquiring body, or on Detective Norman, or on his status. That judge will be tasked as well with safeguarding Detective Norman's privacy rights. However, the obligation to be certain that no

accused person shall be wrongfully convicted may trump those privacy interests. That will be the balance that the reviewing judge will have to find.

[39.] No harm is done to Detective Norman by the simple production for judicial examination of the records of the inquiry. Nor is any harm done to the Toronto Police service by such production.

[40.] Objection is taken that this is a simple fishing expedition by which defence seeks to air dirty laundry or provide evidence with which to confuse or distract a jury. I respond that the reviewing judge will be in a far better position to make that assessment than I. However, as to

likely relevance, doubts should be resolved in favour of judicial examination.

[41.] Complaint is made that Detective Norman is being tarred with the brush of guilt by association, i.e., Constable Boulton has been convicted so Detective Norman is under suspicion. The E-plug and this investigation were carried out by TADEU. Whatever TADEU did was considered serious enough to compromise a major, international drug investigation.

[42.] A "unit" such a TADEU is a team of officers. Such officers work together frequently. The words "unit" and "team" imply as much. Sometimes one officer will be the exhibits officer. Another time he may be tasked with interrogating a suspect or with some other aspect of the investigation, such as procuring a warrant. However, the necessity for close cooperation amongst members of such a close-knit unit, makes it, inherently difficult for one member, acting alone, to compromise the entire team or a major international investigation. One asks rhetorically, if a container of drugs was opened without a warrant and tampered with, how likely is it that an then falsified an information and that no one else in the team knew about it, or acquiesced in it? Perhaps acquiescence, or willful blindness, or even simple negligence on an isolated occasion, might not justify damaging the career a veteran officer. But it might have far-reaching consequences on an individual accused. Again, I find that the balance favours judicial review of the record. The reviewing judge can be trusted not to permit the disclosure of information that would simply foster a witch-hunt.

[43.] This is particularly so in view of the revelations in the transcript of the Boulton plea. Now I recognize that this information is evidence only concerning Constable Boulton. However, certain statements were made in those proceedings by defence counsel to which Crown counsel did

not object. Thus they were placed before the court as fact. Those statements suggested endemic problems within TADEU.

[44.] First, the decision to open the container in question without a warrant was an abrupt departure from the original plan, which was to place the cargo under surveillance. The order to do so came from an officer (MacLeod) who was the commanding officer of TADEU. He is

now under indictment.

[45.] In the proceedings, statements were made that suggested that the working atmosphere in the unit had been poisoned and that TADEU had become "dysfunctional".

[46.] The statement was made that MacLeod had ordered the opening of the cargo without a warrant, despite the absence of exigent circumstances, and that he then had ordered it to be resealed so as to appear that it had not been opened.

[47.] He then ordered constable Boulton to swear the false and misleading affidavit in order to obtain the search warrant. At p. 23 4 the following statement appears:

He ordered Constable Boulton - tasked him with preparing the

affidavit to obtain this search warrant. You will see in the synopsis, as

well, that every officer in the unit created notebook entries that were

not accurate. They may have been accurate as far as they went, but

obviously there was a material non-disclosure of the opening of the

crate. The only two officers that have been prosecuted are my client

and MacLeod, while it is my understanding that other officers of this

joint forces unit have been exposed to internal discipline in their

respective police services. I have no information as to the results ...

(Emphasis added).

[48.] Counsel for Mr. Boulton then went on to say that he gave a voluntary statement.

the transcript's about 50 pages or so. He declined the assistance of counsel where others did not. He was fully candid with the investigating officer and he set out in some detail, exactly what

happened and what occurred.

[49.] Counsel for Mr. Boulton also advised the court that his client knew of an earlier third party records application partly as a result of his statement and Mr. Boulton did not oppose it.

[50.] At the very least I will order disclosure of the transcript of constable Boulton's interview and that no names of officers who were members of TADEU shall be redacted from the version provided to the judge reviewing it.

[51.] The transcript suggests every officer of TADEU who was involved in the "E-plug" investigation at least acquiesced in the making of misleading notes. That investigation bore many similarities to this one. It may be that the roles of the individual officers differed in the two

investigations but in the context of the continuing operation as a team and of almost institutional wrongdoing, that fact assumes far less weight.

[52.] At p 26 of the proceedings the following occurs: He [Boulton] was assigned by another officer who is the co-defendant. His choices were limited. He can say, no, and you've heard something about the atmosphere in that unit at that time and he would certainly have expected to have been blackballed or he can go along with it, as did others, tacitly, went along with the plan to produce misleading notes and to let this case proceed some ways down the road. (Emphasis added.)

[53.] At p. 29 the following appears: He also said that Macleod directed Adair to falsify his notes when executing the warrant, such as noting ‘photos taken', ‘lid marked for reference', and ‘plastic ties cut'. Each of these things had actually taken place the day before, when the crate was breached.

[54.] Mr. Stunt for the defence referred to an internal memorandum dealing with the possibility that the investigation might be saved by suggesting that the police were acting in good faith. The memo concluded:

"Unfortunately, the information we have suggests blatant police

misconduct and I think there is a strong likelihood the courts will

reject the Vancouver's good faith argument and toss the evidence.

However, for that to occur we are going to have to air a lot of dirty

laundry, which will undoubtedly permanently damage the career of

the affiant," that's my client, "an excellent junior, who based on what

I know thus far was reluctantly following the direction of a senior

NCO." In my respectful view, that is exactly what happened.

[55.] At page 31 line 20:

Sergeant Emery: ... Do you feel that [REDACTED] was pressured into

writing the warrant?'

McLean: Yes. Yes I do.

Emery: What was his demeanour like when you looked over his

shoulder while he was writing it?

McLean: ... like I said before, Dave Warren was helping him write the

warrant, so I'm not sure how much it's Brian's and how much it's -

how much it's Dave's.

[56.] The transcript of the proceedings, even without Ex. 1., suggests possible widespread corruption within TADEU. The argument has been made that what Detective Norman did in this investigation had no similarity to what was done in the other investigation. I have noted how

roles change from case to case. The important fact is that the unit functions as a whole. One officer knows what other officers are up to. The fact that the role of one officer differs from investigation to investigation is of little consequence if the evidence suggests that corruption is widespread, especially if it flows downward from the top. The issue is a pattern of conduct within the unit. It is of diminishing significance by whom the pattern is executed in the particular case.

[57.] In paragraph 53, above, defence counsel is quoted making submissions that suggest that constable Adair might have falsified his notes referable to the Boulton matter. Crown counsel did not object. In the instant case, the arrest of the individuals at the scene on Harold St. took place shortly after 12:33 PM on February 14, 2006. The exhibit report of Constable Adair 6 discloses, at items numbered 99, 100 and 104, that it was he who claims to have found the substituted packages in the automobiles, at 1:30 PM and 1:45 PM on February 14, 2006, almost one hour to one and a quarter hours after the suspects were arrested.

[58.] It comes down to this: Objectively viewed, and standing alone, there is a legitimate question how the drugs got from the U-haul to the autos without being observed.

[59.] When that question is asked in the context of a possible pattern of widespread corruption, within TADEU, and in the temporal context of the arrest and seizure, it places at risk the liberty of any person accused of association with the drugs by the evidence of unit members.

[60.] It does not matter that, in the Boulton investigation, the issue was improper opening of a container and that, in this investigation, the container was properly opened. What matters is that TADEU members bent the rules with a view to advancing the prosecution. The command to do so came from the top. The unit was dysfunctional. The evidence suggests that great pressure existed on individual members to "go along" with significant improprieties. There is reason to believe that many members of the unit acquiesced, at the least. Considering that the issue at stake is possible wrongful conviction, the conclusion of other tribunals that some officers should or should not be disciplined is irrelevant. What must be examined is the information that the other

tribunals had, not the conclusions they reached.

[61.] It is my view that any investigation into TADEU impropriety that is associated with the E-plug prosecution has likely relevance this prosecution.

[62.] Counsel have cited the decision of my colleague, Miller J., in R. v Carnakie, 7 as support for the theory that any foray into third party records should be narrowly constrained. I do not question the correctness of that decision on the record that was before the court. When that decision was made, constable Boulton's matter had not reached disposition. At the time of this application it had been disposed of. The facts revealed at that disposition raised an issue of possible endemic corruption within TADEU that does not appear to have been before Miller J.

[63.] On the record before me, I consider that the criminal and disciplinary investigations into Corporal Macleod and Constable Boulton do have likely relevance to this investigation. If one of the officers involved in this investigation, perhaps Constable Adair, were found to have succumbed, in the other investigation, even unwillingly, to command pressure with a view to obstruction of justice, how could it be said it would be irrelevant in this prosecution? I consider that the privacy interests of law enforcement officers in criminal investigations, or in related disciplinary proceedings, all of which are public in nature, have scant weight when balanced against the prospect of a wrongful conviction.

[64.] Nor do I believe that production of the criminal investigatory file in respect of Sergeant MacLeod would prejudice his trial. Both he and the Crown already have all such information under Stinchcombe. That fact that it is then to be read by a judge during the second stage of an

O'Connor hearing does not prejudice either party in any way that I can perceive. If that information is to be released, the timing and distribution of its release can be controlled.

[65.] Naturally purely personal or privileged information can be redacted from any file. But redaction shall not extend the names of members of TADEU mentioned by witnesses as having participated or acquiesced in possibly improper police conduct.

[66.] As to the files of the R.C.M.P. counsel seem to be agreed that, because of the manner in which events developed, the Durham Police Services Investigation file includes everything relevant that might have been in the R.C.M.P. file. For that reason there is no utility in compelling its production.

[67.] I do order production of the Durham Regional Police Services investigation file into Constable Boulton and Sergeant MacLeod. I also order production of the agreed statement of facts that became Ex. 1. In the Boulton proceedings, if it is within the power or control of either the Durham Regional Police Service or the provincial Crown Attorney's Office who conducted the prosecution. 8 This report shall contain any references made to Constable Adair.

[68.] I also order production of the Toronto Police Service inquiry into Detective Norman's conduct in the Boulton matter.

[69.] In particular, I will order disclosure of the transcript of constable Boulton's interview by police and that no names of officers who were members of TADEU shall be redacted from the version provided to the judge reviewing it.

Summary

[70.] The Boulton plea proceedings, to the extent that they are known, give rise to a reasonable inference of possible endemic corruption amongst members of TADEU. The corruption there disclosed appears to have emanated from the top of the organization and been applied downwards. In the e-plug investigation, evidence exists that many officers were either implicated in obstructive behaviours or succumbed to pressure to commit such behaviours.

[71.] In a "unit" such as TADEU, many officers work together frequently and for a considerable time but often perform different functions from case to case. The fact of possibly endemic wrongdoing, diminishes the normal requirement that the defence prove that there is. It might easily be obtained from Mr. Paul Stunt, of Oakville, Ontario who was defence counsel.

[72.] While there is by statute and common law a privacy interest in the records kept by police of an investigation or of related disciplinary proceedings, the nature of police duties in either is a public one. Transparency is required so that justice may be seen to be done. That leads to a reduced expectation of privacy. That expectation simply cannot weigh against the interests of an accused who might wrongfully be convicted as a result of police misconduct.

[73.] A review of the information gathered by police in a discipline proceeding does not imply a review of the findings made in disposing of it. It simply requires disclosure to the court of the information it contains, so that the court can determine if wrongdoing may have extended to the instant case.