500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 Express Transaction Services Inc. c. Bousquet 2008 QCCS 3889

JC2266

SUPERIEUR COURT

CANADA

PROVINCE OF QUEBEC

DISTRICT OF

MONTREAL

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00-36-004533-074500-36-004534-072500-36-00

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4535-079500-36-004536-077

500-36-004537-075500-36-004538-

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073

DATE : Ju

ne 6, 2008

________________________________________________________________________________

UNDER THE PRESIDENCE OF THE HONORABLE FRANCE CHARBONNEAU, S.C.J.

________________________________________________________________________________

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 EXPRESS TRANSACTION SERVICES INC. (and) ERIC CHENAIL ET AL.

Applicants

vs. JUGE SUZANNE BOUSQUET,Juge de paix magistrat

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Respondent

LE GREFFIER DE LA PAIX ET DE LA COURONNE

-and-THE

ATTORNEY

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GENERAL OF CANADAMis en cause

_________________________________________________________________________________

JUDGMENT

_______________________________________________________________________________________

I. INTRODUCTION

1. To start with the Court states that different judgments have already been rendered in court with reasons to follow and proposes to deliver them together with this judgment. 2. The Applicants request for an "Order of Certiorari (s. 774 of the Criminal Code) with application under 24(1) of the Charter (s. 774 and following of the criminal code, ss. 7, 8, 9, 10 (b)" 3. The hearing was held on the week beginning April 21, 2008.

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II. BACKGROUND4. The investigation origin from Project COLT (Centre of Operations Linked to

Telemarketing Fraud) which is a RCMP led initiative made up of members of the RCMP, Competition Bureau, Sûreté du Québec, Department of Homeland Security Immigration and Customs Enforcement, the Federal Bureau of Investigation, Service de Police de la Ville de Montréal, the Federal Trade Commission, Canada Border Services Agency, and the United States Postal Service. COLT's mandate is to combat telemarketing fraud.5. The actual facts derive from an ongoing joint investigation involving RCMP and the Competition Bureau into alleged violations of the Criminal Code and Competition Act related to deceptive and fraudulent telemarketing activities conducted by a group of companies and a number of individuals located in the City of Montreal. 6. The investigation pertains to the expertise of this specialized group and Cst. Wayne K. Dunn, a police officer from RCMP Commercial Crime Section and member of a specialized multi-agency task force with a specialized mandate to combat telemarketing fraud. 7. The Applicants are a number of businesses and corporate entities that are under investigation together with Éric Chenail, Amalia Di Falco and Georges Haligua Cohen, three individuals who are officers, directors, administrators or owners of one, or a number of these entities. 8. The informations to obtain the search warrants are related in Cst. Dunn's affidavit (Annexe C). 9. According to Cst. Dunn's affidavit the individuals and companies concerned

have, for a considerable number of years, been in the business of defrauding small and medium-size companies by fraudulently selling them various products worth a fraction of the amount of money the companies of interest were demanding for them.10.It is also mentioned that it concerns an organized, systematic and generalized scheme by the Applicants to co unsuspecting businesses into paying excessive amounts of money for products that are worth a fraction of the amount demanded by the organization. 11.As it appears from the affidavit considerable research and effort have been taken within the investigation to track the companies and histories of the targets of the investigation and there is a very complicated corporate history in this regard.12.The Applicants' business activities are described as “schemes” namely: Directory scheme1, Paper rolls scheme2, Medical kits scheme3, Subscriptions to online directory scheme4.13.The affidavit filed in support of the application for the issuance of search warrants refers to a wide range of sources of information being factored into the investigation,

1 p. 18 of Cst. Dunn's affidavit2 p. 20 of Cst. Dunn's affidavit3 p. 22 of Cst. Dunn's affidavit4 p. 23 of Cst. Dunn's affidavit

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 including credible sources of public information, confidential informants, other officers and the actions of the affiant himself.

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 14.In fact, in his 49 pages affidavit, containing 203 paragraphs, Cst. Dunn lists all sources of information pertaining to the investigation. Information collected within the investigation appears to be catalogued and stored by investigators in binders which read as follows:

"POLICES SOURCESPersonal Notes of my Colleagues8. The facts in the present affidavit are equally based on my consultation of personal notes of the members of COLT as well as my other colleagues. The personal notes of the members of the COLT and other colleagues are general denunciation of facts. My colleagues also generally wrote their personal notes at the time or soon after the event. I believe their notes to be reliable.

Surveillance Reports9. Some of the facts in this affidavit come from surveillance reports. The physical surveillance was done by members of Project COLT, including both members of the RCMP and the Competition Bureau (both conjointly and separately). Surveillance reports are summaries of what was seen, heard, and done during any given operation by the members. I believe the surveillance reports to be reliable.

Canadian Police Information Center (CPIC)10. CPIC is a databank containing information of people with criminal records or that are of interest to police. The system is utilized by many authorized government agencies and all police forces across Canada. This system also provides information on all registered drivers and vehicles across the country. The information found in this databank is updated by authorized personnel by the participating agencies. I believe the information found in CPIC to be reliable.

Centre de Renseignement Policiers du Québec (CRPQ)11. CRPQ is databank that is overseen by the Sûreté du Quebec. It is a system that is used by several police services in Quebec. The CRPQ contains information on people involved in police investigations. CRPQ is also linked to diverse databanks such as Société de l'Assurance Automobile du Québec (SAAQ). CRPQ is also interfaced with the CPIC system. I believe the information found in CRPQ to be reliable.

Phone busters Databank12. Phone busters is a national call center operated by the Ontario Provincial Police and the Royal Canadian Mounted Police. Phone busters is the central agency that collects information on telemarketing complaints throughout Canada and disseminates the information to the appropriate enforcement agencies. The Phone busters databanks contains information

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pertaining to fraudulent organizations, companies, and individuals. As well, it stores information on individuals or companies that have been victim of telemarketing fraud. I believe the information found in Phone busters to be reliable.

Bureau Information Management System (BIMS)13. BIMS is a databank for complaints and case management used by the Competition Bureau. I believe the information contained in the BIMS databank accurately reflects the information from complainants. I believe the information found in BIMS to be reliable.

Better Business Bureau (BBB)14. The Better Business Bureau is a private organization that acts as an independent third party to provide reports and handle company complaints. The BBB will forward copies of complaints and company responses to the Competition Bureau. I believe the information found in the BBB to be reliable.

Consumer Sentinel15. Consumer Sentinel is a shared database, based in the United States, which allows law enforcement members online access to consumer complaints. The complaints range from telemarketing fraud to distant selling fraud. Consumer Sentinel is a joint project that includes the Federal Trade Commission, National Associations of Attorneys General, Phone busters, United States Postal Inspection Service and many local business bureaus. The National Fraud Information Center and over 300 others federal states, and local law enforcement agencies in Canada, the United States and Australia. I believe the information found in consumer Sentinel to be reliable.

Office of Fair Trading (OFT)16. The Office of Fair Trade (OFT) is a non-ministerial government department of the United Kingdom (UK) established by the fair trading act of 1973. It enforces both consumer protection and competition law, acting as the UK's economic regulator. I believe the information found in OFT to be reliable.

Registre des Entreprises du Québec (CIDREQ)17. The register of sole proprietorships, partnerships and legal persons is a unique database. The enterprise registrar maintains this public register to record, process, store, and distribute the principal information concerning the identity of associations and enterprises incorporated or in operation in Québec. This information has legal force. The register is also a universal system of legal publicity for all legal types of enterprises operating business in Québec and valid in all parts of Québec. The public register was created by the Act Respecting the Legal Publicity of Sole Proprietorships,

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Partnerships and Legal Persons (RSQ c.P-45) in order to receive and publicize the information declared by enterprises. The law is intended to protect the citizens and enterprises of Québec in their business transactions. Since January 1 1994, every enterprise that does business in Québec is required to register. I believe the information found in CIDREQ to be reliable.

Inspecteur Général des Institutions Financières du Québec (IGIF)18. Inspecteur Général des Institutions Financières du Québec (IGIF) or the Inspector General of Financial Institutions is incorporated under the Act Respecting the Inspector General of Financial Institutions. The IGIF's responsibilities include: overseeing and inspecting financial institutions, and administering and operating a central registry of businesses set up by the government. I believe the information found in IGIF to be reliable.

Canadian Intellectual Property Office (CIPO)19. The Canadian Intellectual Property Office (CIPO) is a special operating agency associated with Industry Canada. It is responsible for the administration and processing of the greater part of intellectual property in Canada including: patents, trademarks, copyrights, industrial designs and integrated circuit topographies. I believe the information found in CIPO to be reliable.

Office of the Superintendent of Bankruptcy Canada20. The Office of the Superintendent of Bankruptcy Canada is an agency of Industry Canada. Its role is to supervise and administer the Bankruptcy and Insolvency Act. The Office of Superintendent of Bankruptcy has many responsibilities including the maintenance of a publicly accessible record of bankruptcy and insolvency proceedings. I believe the information found in Office of the Superintendent of Bankruptcy Canada to be reliable.

Dun & Bradstreet (D&B)21. Dun & Bradstreet Corporation (D&B) headquartered in Short Hills, New Jersey. USA, is one of the world's leading providers of business information. The D&B Database contains information on over 115 million businesses worldwide and 1.5 million Canadian businesses. Some of the information provided within D&B databases includes: corporate family trees, legal and trade names, directors, physical and mailing addresses, product and industry descriptors, sales and number of employees etc.

Rip Off Report22. Rip-Off Report is a privately owned consumer reporting website that allows the consumers to file and read complaints about companies and individuals. Since reports are written by consumers, the information

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contained within this website may not always be accurate. In response to consumer complaints, Ri-off Report also provides companies targeted by the reports to provide rebuttals to claims made. I am unsure of this source's reliability.

Companies House23. All limited companies in the UK are registered at Companies House, an Executive Agency of the Department for Business, Enterprise and Regulatory Reform (BERR). There are more than 2 million limited companies registered in Great Britain, and more than 300,000 new companies are incorporated each year. Companies registration matters are dealt with in law by the Companies Act (1985) and the updating legislation contained in the Companies Act (1989). Due to the fact that this source is not Canadian I am unaware of its reliability.

Info Greffe24. Info Greffe is a website based in France that provides legal information about companies. With Info Greffe one can research companies and merchants registered in the trade register, commercial agents, and companies in collective actions. Due to the fact that this source is not Canadian I am unaware of its reliability.

Société.com1. Société.com is a website that was launched in January 2000, and that provides information on companies registered in France. This website searches the Registre du Commerce in order to provide legal and financial information on more than 3 million French companies. Due to the fact that this source is not Canadian I am unaware of its reliability. Garbage seized at 615 Belmont (On June 16th 2007) 26. On June 16th 2007, members of Project COLT seized three bags of garbage located at 615 Belmont. Documents related to the target companies were found in these bags, and have been numbered as exhibits by members of the RCMP. Informant A 27. Informant A has been working with members of the RCMP since 2007. Informant A, who was at one point employed at 615 Belmont, was able to provide investigators with the goings on and layout of the building. Informant B28. Informant B has been working with members of the RCMP since ………… 2007. Informant B, who was at one point employed at 615 Belmont, was able to provide investigators with the goings on, and layout of the building."

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 15.Paragraph 138 indicates that the address of 615 Belmont was first brought to the attention of the Competition Bureau by a confidential informant:

"The address 615 Belmont first came to the attention of the Competition Bureau in (blank) 2006, when a Bureau officer, Andrew McAlpine spoke with a confidential informant who indicated they were working in a boiler room at 615 Belmont. The Bureau then conducted a search on the address in the bureau information management system (BIMS), and found one complaint against International Secure Technologies (IST). The complaint had IST located at 615 Belmont.

Source: Email from Andrew McAlpine (dated (blank), 2006) as well as BIMS complaint R475580 (23 binder #3).

A boiler room is a term used in the telemarketing industry. It refers to a call centre."

16.Then, paragraphs 187 and 188 reveal that informants A and B have worked a short period of time at 615 Belmont as shown:

"187. Informant A, confirmed that they worked at 615 Belmont for a short period of time. During the time that informant A worked at 615 Belmont they remember the following companies working out of 615 Belmont: IT Data, Comexco, and MRS. Informant A gave a layout of the building floor by floor. The layout is as follows:

RC: recruitment, and reception (approximately 5 employees)

2nd: Sales (approximately 50 employees)

3rd: Sales, customer service, Collections, and the cafeteria (approximately 100 employees)

4th: Sales, and verifications (approximately 50-75 employees)

5th: Informatics (approximately 5 employees)

6th: Training room, and Georges HALIGUA'S office

Informant A stated that it took them a short time to figure out that sales strategies being used were illegal.

Source: Source report written by Cpl. Yvan LAPIERRE on ……….. 2007.

Source report of Informant A (18 binder #2),

188. Informant B, confirmed that they worked at 615 Belmont ………………….Informant B States that they worked there for a short period of time. Informant B gave a layout of the building floor by floor. The layout is as follows:

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RC: recruitment, and reception (approximately 5-10 employees)

2nd: Sales (approximately 40 employees)

3rd: Customer service (approximately 50 employees)

4th: Sales, and customer service (approximately 50 employees)

5th: Training, Administration, and Managements office. (no amount specified)

Informant B stated that the boss drove a vehicle worth over $150,000.00

Source: Source report written by Cst. Brenda MAKAD on ………… 2007. Source report of Informant B (20 binder #4). "

17.Pursuant to this investigation, a number of s. 487 and 487.01 of the Criminal Code search warrants and general warrants were sought and obtained. 18.Indeed, a magistrate Justice of the peace issued all warrants on October 4, 2007. Thus, 10 search warrants were issued in virtue of s. 487 of the Criminal Code, namely located at:

500-26-046420-075 615 Belmont, Montreal, Qc.

500-26-046416-073 1874 Notre-Dame Ouest, apt. 8, Montreal, Qc

500-26-046419-077 2 Finch, Dollard-des-Ormeaux, Montreal, Qc.

500-26-046418-079 5765 A Paré, Montreal, Qc.

500-26-046417-071 5765 Paré, Suite 101, Montreal, Qc.

500-26-046425-074 5765 Paré, Suite 100, Montreal, Qc.

500-26-046424-077 Postal Box #410 at 1235, Notre-Dame West, Montreal, Qc.

500-26-046422-071 Postal Box #175 at 43 Samson Blvd. Laval, Qc.

500-26-046421-073 Postal Box #325 at 3484 des Sources Blvd., Dollard-des-Ormeaux, Qc.

500-26-046423-079 Postal Box #512, 3551 St-Charles Blvd., Kirkland (Mtl), Qc.

19.Four additional general warrants under s. 487.01 of the Criminal Code, were issued concerning the following addresses:

500-26-046414-078 Casier Postal 521, 3551, Boul. St-Charles, Kirkland (Mtl) Qc

500-26-046413-070 Postal Box 175 at 43 Samson Blvd. Laval, Qc.

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500-26-046415-075 Postal Box #325 at 3484 des Sources Blvd., Dollard-des-Ormeaux, Qc.

500-26-046412-072 Postal Box #410, 1235 Notre-Dame West, Montreal, Qc

20. Investigators executed warrants commencing October 9, 2007. 21.Many arrests were made at the time of the execution of one of the search warrants at a business premises located at 615 Belmont in Montreal. The latter search warrant constitutes the primary basis of the present motion.22.The search warrant authorized the search for and seizure of records relevant to the allegations against the parties under investigation and the alleged offences. 23.The search warrants indicate that things, described in Annexe B, will be found at the various premises to be searched and that they will furnish evidence of fraud contrary to s. 380 of the Criminal Code and offences contrary to ss. 52(1), 52.1(2) and 52.1(3) of the Competition Act (Annexe A). 24.It is agreed that the search warrants were executed on October 9, 2007, at the various premises indicated and that numerous documents, computers and other things were seized.

25.On the same date, over 100 RCMP officers and Competition Bureau representatives enclosed a perimeter around the 615 Belmont, in the city of Montreal, at approximately 10 a.m. 26.It is also agreed that approximately 130 people were arrested, most of them employees of the targeted companies. Everyone arrested was informed, by the peace officers, of allegations of fraudulent and deceptive telemarketing against companies leasing office space at 615 Belmont. They were eventually released without being charged after detention of approximately six hours. 27.Applicants, Georges Haligua Cohen, Amalia Di Falco and Éric Chenail have also been arrested at different times on the same morning of October 9, 2007. They were all interrogated and eventually released.28.No charge has been laid, to this day, against any of the Applicants or any of the employees arrested. However the Mis-en-cause, the Attorney General of Canada, has stated in open court that the investigation is still going on and that charges will later be submitted to his attention.

III. APPLICANTS' SUBMISSIONSa) Me Harvey Yarosky29.Me Yaroski submitted that police officers' conduct during the search constitutes an unlawful, abusive, arbitrary and unconstitutional exercise of police power which cannot possibly fall within the “limited powers of officers to detain for investigative purposes” 30.Me Yaroski submitted that the issued warrants and the searches and seizures executed in virtue thereof are unlawful, unreasonable, contrary to the Canadian Charter of Rights and Freedoms and constitute a gross abuse of the search warrant

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 process provided for in s. 487 of the Criminal Code, namely because the grounds upon which the warrants were authorized, as disclosed in the information filed before the issuing Justice, are insufficient, do not rise to the level of belief based on reliability and reasonable probability required by the Criminal Code and the jurisprudence and are not capable of constituting a basis for their issuance.

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 31.Me Yaroski sustained that the searches formed part of a police operation that involved, evidently unbeknownst to the authorizing Justice, the use of the search warrants to gain access to the various premises not only to search for documents and other things set out in the information but to arrest and detain, for many hours, approximately 130 persons found thereon in order to obtain statements from them.32.Me Yarosky, requested to cross-examine Cst. Dunn in relation with the

circumstances surrounding the conduct of the search itself based on Charter motions. 33.Me Yarosky submitted that approximately 130 people, most of whom were

employees of the targeted companies, were under arrest and control with their hands restrained while the premises were going to be searched. They would have been arrested in regard of fraudulent and deceptive telemarketing. They would have been ordered into school buses, under the glare of television and press cameras that had been brought to 615 Belmont and would have spent approximately three to four hours on the buses. Most of them would have been transported to RCMP headquarters on Dorchester Street in Westmount. Some of them would have spent an additional two hours on the buses before entering the headquarters. Although advised, at the time of their arrest, of the right to silence and the right to counsel, no one would have been permitted to call a lawyer until after reaching RCMP headquarters, approximately four to six hours after having been arrested. The persons arrested would have been required to fill in questionnaires that included, inter alia, questions related to the investigation into the activities of the targeted companies. Some would have been released after completing the questionnaires while others would have been questioned further. 34.Me Yarosky alleged that Georges Haligua Cohen was arrested, on the same morning of October 9, 2007 at 10:15 a.m., in the parking lot of 615 Belmont. He would have been brought to RCMP headquarters in Westmount, interrogated and not released until the next morning at approximately 2 o'clock in the morning. 35.His lawyer, Me Jean J. Bertrand, would have attended at RCMP headquarters unsuccessfully to consult with his client from 8:30 to 10 o'clock in the evening on October 9. 36.While Mr. Haligua Cohen was detained, his home was searched, pursuant to a search warrant, and a seizure was made therein. 37.Me Yarosky alleged that the RCMP contacted Amalia Di Falco on her cellular phone at 11:15 o'clock in the morning, on October 9, 2007. She was told to turn herself in at the RCMP office where she was arrested, detained, interrogated and not released until 10 o'clock that evening. 38.It is also alleged that the RCMP contacted Eric Chenail on his cellular phone at approximately 11 a.m., on October 9, 2007. He was told to turn himself in, which was done at about 11:30 a.m. at 615 Belmont, where he was arrested, detained and questioned. He was brought to the Montreal Police Detention Center on Guy Street where he was detained and further interrogated. He was not released until 8:30 o'clock that evening. During his detention his home was searched pursuant to a

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500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 39.Me Yarosky submitted that the entire operation has been planed to be conducted the way it was executed, so that the flagrant violations of the Charter formed an integral part of the search warrant operation planned and carried out by the police against the Applicants resulting in unreasonable searches and seizures contrary to s. 8 of the Charter. 40.Me Yarosky emphasized that Georges Haligua Cohen is not asking for a remedy for the 130 persons that have been arrested, but rather on behalf of the companies and Georges Haligua Cohen himself to say that, not only Georges Haligua Cohen but the companies, were investigated illegally and unconstitutionally by taking a search warrant in order to arrest the persons working in the companies. 41.Me Yarosky sought to have this Court issue an order of Certiorari and an order under s. 24(1) to quash the search warrants, annul the searches and seizures carried out there under, order the return of all things seized and any copies thereof to the Applicants and prohibit the use of such things and any copies thereof by any person other than the Applicants in any criminal or penal proceedings. b) Me Julio Peris42.Me Julio Peris sustained that Cst Dunn’s affidavit lacks details in regard with some of the complainants' names or some other details for which he requested to cross-examine Cst. Dunn.43.Namely, although the affidavit mentioned that no return of the merchandise

was permitted, Me Peris sustained that returns were allowed. Me Peris' request to cross-examine Cst. Dunn to verify the authenticity of the allegations contained in the affidavit. 44.Me Peris also sustained that, contrary to what it is alleged in the affidavit, the Applicants rightfully represented that the medical kit is mandatory. According to Me Peris, Cst. Dunn wrongly misled the authorizing Justice by mentioning that the telemarketers wrongly represented that a medical kit was mandatory in paragraph 121. c) Me Isabel J. Schurman45.Me Schurman sustained that the issued warrants and the searches and seizures executed in virtue thereof are unlawful, unreasonable, contrary to the Canadian Charter of Rights and Freedoms and constitute a gross abuse of the search warrant process provided for in s. 487 of the Criminal Code, namely because the grounds upon which the warrants were authorized, as disclosed in the information filed before the issuing Justice are insufficient, do not rise the level of belief based on reliability and reasonable probability required by the Criminal Code. 46.Thus, Me Schurman proposed to introduce evidence that will establish that

a preliminary search was conducted in the garbage pertaining to the companies located at 615 Belmont that infringed expectation of privacy and was unreasonable and contrary to s. 8 of the Charter. 47.Me Schurman argued that should this Court decide that there has been no violation of privacy, the evidence will anyhow reveal that no garbage was left at

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 the time and date indicated in the affidavit, namely because the garbage bins were usually emptied every day by a private company. Moreover, no document was reaching the garbage bins outside the building without having previously been shredded by the cleaning employees.

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 48.Me Schurman submitted that it is therefore highly improbable that any valuable document would have been found by any person in the garbage bins as described by Cst. Dunn in his affidavit. 49.Me Schurman sustained that cross examination will elicit evidence of probative value to the issue for consideration on a review of the search warrant that the information provided to the Justice by Cst. Dunn is not credible and is insufficient to establish the requisite grounds to believe that the companies of interest were engaged in the commission of the alleged offences pursuant to ss. 52 and/or 52.1 of the Competition Act, as well as/or s. 380 of the Criminal code between 2001 and 2007, in order for the issuing Justice to exercise her jurisdiction properly in coming to the conclusion that there were reasonable grounds to support the search warrant.

IV. ANALYSIS1. THE CONDUCT OF THE SEARCH 50.This Court has already decided this subject matter as follows. 51.The Court concluded that the legal basis for the search and seizure conducted at 615 Belmont pursuant to s. 487 of the Criminal Code is separate from the legal basis for the arrests pursuant to s. 495 of the Criminal Code. 52.Considering the distinct legal bases between the authority to search with a

warrant, and the authority of a peace officer to arrest a person without a warrant, there is no requirement that an affiant disclose to the authorising Justice the plan of officers to make arrests at the time of the execution of the search warrant. 53.Indeed, the discretion of the police with respect to the laying of charges was discussed in the recent case of Johnson v. Alberta (Attorney General [2007] A.J. No. 1081, 2007 ABQB 583, 81 Alta. L.R. (4th) 346, 2007 CarswellAlta 1301, [2008] 2 W.W.R. 306), at paragraphs 32 to 38:

« 32. The question before this Court is whether the process established in s. 135.1 of the CCRA precludes or fetters the usual authority of the police to lay charges or the Crown's discretion to proceed with charges laid by the police.

33 Prior to delving into the particulars of s. 135.1 of the CCRA, it is helpful to review the fundamental principles relating to the role of the police and prosecutors in the laying of criminal charges.

34 It is trite that the police owe a duty to enforce the criminal law: Hill v. Chief Constable of West Yorkshire, [1989] A.C. 53 at 59; R. v. Beaudry, [2007] 1 S.C.R. 190. This duty has its origins in the common law, and has been clarified to some extent by statute.

35 In exercising their duties, police officers act independently. The authors of The Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (Queen's Printer for Ontario, 1993) ("Martin Report") noted at p. 37 that, as a matter of law, police officers exercise their discretion in conducting investigations and laying

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charges entirely independently of Crown counsel.

36 In R. v. Beare, [1988] 2 S.C.R. 387 at 410, La Forest J. emphasized the importance of a system conferring a broad discretion on law enforcement and prosecutorial authorities, noting that a system that attempted to eliminate discretion (for example, police discretion in deciding when to lay charges) would be unworkably complex and rigid.

37 The Supreme Court recently addressed the duties of the police in Beaudry. In discussing the police discretion to lay charges, Charron J. stated:

1. 37 ... The ability — indeed the duty — to use one's judgment to adapt

the process of law enforcement to individual circumstances and to the real-life demands of justice is in fact the basis of police discretion.

2. 38 ... First, the exercise of the discretion must be justified subjectively, that is, the discretion must have been exercised honestly and transparently, and on the basis of valid and reasonable grounds ... Thus, a decision based on favouritism, or on cultural, social or racial stereotypes, cannot constitute a proper exercise of police discretion. However, the officer's sincere belief that he properly exercised his discretion is not sufficient to justify his decision.

3. 39 ... the exercise of police discretion must also be justified on the basis of objective factors ... .

4. ...

5. 48 ... In my opinion, the proper functioning of the criminal justice system requires that all actors involved be able to exercise their judgment in performing their respective duties, even though one person's discretion may overlap with that of another person. The police have a particular role to play in the criminal justice system, one that was initially founded in the common law, and it is important that they remain independent of the executive branch: R. v. Campbell, [1999] 1 S.C.R. 565, at paras. 27 to 36, and R. v. Regan, [2002] 1 S.C.R. 297 [page214], 2002 SCC 12. Doyon J.A.'s hierarchical vision according to which a police officer's discretion is limited by the discretion of the Crown prosecutor should therefore be rejected. In discharging their respective duties, both the police officer and the prosecutor have a discretion that must be exercised independently of any outside influence: Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, 2002 SCC 65. The limits of each official's discretion are inherent in that person's role and duties. However, the responsibilities of Crown prosecutors do not serve to limit the scope of police discretion.

6. 38 Thus, the police have a duty, with respect to which they exercise discretion, and it is important that they remain independent in doing so.

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Further, there are overlapping roles among the various players in the criminal justice system. »

54.It is admitted that a search warrant, in itself, without any specific ground to arrest, cannot serve as a pretext to enter a premise and arrest someone. It is also agreed that the way a search is conducted might in certain circumstances tarnish the search itself. However, it does not belong to this Court to decide these interesting questions raised by Me Yarosky at this moment. 55.In fact, the issue at this stage is whether the magistrate Justice of the peace exceeded her jurisdiction in granting the warrants. This determination can be made without having to rule on any alleged Charter violation. 56.Moreover, the scope of this Court in reviewing on certiorari is very limited as cited by the Supreme Court in R. v. Russell, [2001] 2 C.S.R. 804 at paragraph 19:

« 19 The scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensive review, today certiorari "runs largely to jurisdictional review or surveillance by a superior court of statutory tribunals, the term 'jurisdiction' being given its narrow or technical sense": Skogman v. The Queen, [1984] 2 S.C.R. 93, at p. 99. Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review "only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction": Skogman, supra, at p. 100 (citing Forsythe v. The Queen, [1980] 2 S.C.R. 268). (Underlining added) »

57.In addition, even though the Superior court is a court of competent jurisdiction to make an order pursuant to s. 24 of the Charter, a number of courts have recognized that a Superior court has discretion not to adjudicate these issues, recognizing that another court will be in a better position to do so. It has been repeatedly stated, namely by the Supreme Court, that the court best positioned to determine whether a Charter violation has occurred, if found, and what remedy is appropriate, is the trial court. This is particularly so when the remedy sought involves the exclusion of evidence5. 58.As a general rule a certiorari application is not the appropriate vehicle to raise issues of this nature and any final determination in this regard should be deferred to the trial judge, should there be one, who will have the benefit of all the evidence and circumstances of the case and will determine whether the administration of justice

5 R. v. Hynes, [2001] 3 S.C.R. 623 (S.C.C.); R. v. 974649 Ontario Inc., [2001] 3 S.C.R. 575 (S.C.C.); Mills v. The Queen, [1986] 1 S.C.R. 863 (S.C.C); R. v. B.G.T., 2007 NWTSC 75 (CanLii); Re: Zevallos and the Queen (1987), 37 C.C.C. (3d) 79 (Ont. C.A.); R. v. Dergousoff, [1984] B.C.J. No. 1213; 10 C.R.R. 186 (B.C. S.C.); Blackwoods Beverages Ltd. et al. and the Queen et al. (1984), 16 C.C.C. (3d) 363 (Man. C.A.) (leave to appeal to the Supreme Court of Canada refused); R. v. Hunstad, [1984] S.J. No. 249 (Sask. C.A.); Regina v. Kutynec (1992), 70 C.C.C. (3d) 289 (Ont. C.A.).

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 would be brought into disrepute by admitting the evidence.

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 59.Therefore, the manner in which the search was conducted, which includes the arrests, and any infringement of the Charter, if any, is a matter for the trial judge to decide. 60.With respect, the Court has consequently rejected Me Yarosky's request to

cross-examine Cst. Dunn on that matter.

2. THE LEGALITY OF THE SEARCH WARRANT AT 615 BELMONT

a) Me Julio Peris' submissions 61.This Court has already decided this subject matter with reasons to follow. 62.Te Court has already decided that Me Peris' submissions to have the opportunity to cross-examine Cst. Dunn were not sufficient to meet the threshold required by the Supreme Court in R. v. Garofoli, [1990] 2 S.C.R. 1421, and in R. v. Pires, [2005] 3 S.C.R. 343.63.In R. v. Garofoli, the Supreme Court had the opportunity to settle the prerequisite conditions before allowing cross-examination of the affiant in these terms at paragraphs 83 to 89:

« 6. Is the accused entitled to cross-examination on the affidavit filed with the authorizing judge?

1. These preconditions for cross-examination of the affiant are based largely on the American case of Franks v. Delaware, supra. They were adopted by the Court of Appeal in Re Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449 (and in Rowbotham, supra). Most recently, they were upheld by Watt J. in R. v. Parmar (1987), 37 C.C.C. (3d) 300, where Watt J. stated them to be as follows, at p. 344:

i. there must be specific allegation(s) of deliberate falsehood or reckless disregard for the truth in respect of specific aspects of the supportive affidavit;ii. there must be prima facie proof by the applicant in admissible form, of the substance of what is alleged to controvert the specific contents of the affidavit, and

(iii) it must be made to appear that, if the material impugned as false or in reckless regard of the truth is set aside, that which remains is insufficient to sustain the issuance of the impugned order under s. 178.13(1) or 178.13(4), as the case may be.

In my opinion, these preconditions are subject to the same criticisms that were levelled at the preconditions for the sealed packet imposed by the restricted access cases. In R. v. Playford, supra, Goodman J.A. stated, at p. 178:

. . . he cannot gain access to the affidavit unless he can prove on a prima facie basis the grounds for such access and he cannot prove such grounds unless he has access.

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And in Finlay and Grellette, supra, Martin J.A. stated, at p. 77:

Counsel for the appellants stated that in consequence of the restriction placed on an accused's access to the sealed packet, the accused finds himself in an impossible situation. To ascertain whether there has been fraud or non-disclosure he requires access to the sealed packet, but he cannot gain access to the sealed packet unless he proves fraud or non-disclosure.

Applying that statement to this situation, the appellant cannot cross-examine unless he provides proof of deliberate falsehood or reckless disregard for the truth, and he cannot establish deliberate falsehood or reckless disregard for the truth unless he can cross-examine.

84. Furthermore, I question the utility of cross-examination if the accused can establish, even on a prima facie basis, deliberate falsehood or reckless disregard for truth. Except on television, most cross-examiners would consider a cross-examination to have succeeded marvelously if the result is a prima facie case that the affiant has been deliberately false or reckless. If this can be made out ab extra, there is no need to cross-examine.

85. This Court has consistently demonstrated a policy to uphold the right to cross-examine. In Innisfil (Corporation of the Township) v. Corporation of the Township of Vespra, [1981] 2 S.C.R. 145, the right was maintained with respect to evidence of government policy before an administrative tribunal. See also R. v. Potvin, [1989] 1 S.C.R. 525. In Wilson, supra, Dickson J., speaking for himself and Chouinard J., approved of the right to cross-examine on an affidavit filed in support of an authorization. He stated, at p. 624:

It is of little avail to defence counsel to have a statement of law that an authorization can be held to be invalid if obtained, for example, by material non-disclosure and then preclude counsel from asking questions tending to show there has in fact been non-disclosure.

1. Although McIntyre J. did not deal explicitly with the point, he did not disagree with this statement. Furthermore, in accepting the jurisprudence with respect to review of ex parte orders, he must have adopted the right to cross-examination which is inherent in such review. For example, in Gulf Islands Navigation Ltd. v. Seafarers' International Union of North American (Canadian District) (1959), 18 D.L.R. (2d) 625 (B.C.C.A.), the court stated: "if the second Judge hears the motion, he should hear it de novo as to both the law and facts involved" (p. 627). 2. In my opinion, the preconditions in Franks v. Delaware, supra, are too restrictive. I believe that they are inconsistent with the approach which we have taken in Canada with respect to the right to cross-examine. Moreover, subject to the protection of the identity of informants and the concern with respect to the prolongation of proceedings, I see no reason for such a drastic curtailment of the right. I believe these concerns can be accommodated without imposing restrictions as inhibitive as those in Franks v. Delaware.

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With respect to informants, there is no right to cross-examine them. The informant is not a witness and cannot be identified unless the accused brings himself within the "innocence at stake" exception.

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3. With respect to prolixity, I am in favour of placing reasonable limitations on the cross-examination. Leave must be obtained to cross-examine. The granting of leave must be left to the exercise of the discretion of the trial judge. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds.

89. When permitted, the cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted. The discretion of the trial judge should not be interfered with on appeal except in cases in which it has not been judicially exercised. While leave to cross-examine is not the general rule, it is justified in these circumstances in order to prevent an abuse of what is essentially a ruling on the admissibility of evidence. [Underlining added] »

64.Furthermore, in R. v. Pires, the Supreme Court, again seized with the question of the cross-examination of the affiant, said at paragraph 69:

« 69 Although the likely effect of the proposed cross-examination must be assessed in light of the affidavit as a whole, I also agree with Finch C.J.B.C. that the threshold test for determining whether cross-examination should be allowed is separate and distinct from the ultimate question of whether the authorization is valid. Hence, in determining whether the threshold test has been met, the trial judge cannot decide the question simply on the basis that other parts of the affidavit would support the authorization. The focus, rather, must be on the likely effect of the proposed cross-examination and on whether there is a reasonable likelihood that it will undermine the basis of the authorization. If the test is met, it is only at the conclusion of the voir dire that the trial judge will determine whether, on the basis of the amplified record, there still remains a basis for the authorization. However, the trial judge’s apparent collapse of the two tests is of no moment in this case. Having correctly refused leave to cross-examine, the next step was to determine the authorization’s validity on the basis of the material before him. […][Underlining added] »

65.Me Peris' request to cross-examine Cst. Dunn, on the returns of the merchandise, a close look at the affidavit demonstrates that different schemes are mentioned and described at length in paragraphs 105 to 135, including the methods used and the names of the alleged victims. Even if some returns might have been done, that is not the point since returns were indeed theoretically possible but practically impossible as the conditions imposed as described in the affidavit were almost impossible to meet. 66.As it is proposed by Supreme Court that cross-examination must be assessed in light of the affidavit as a whole, the reasons invoked did not meet the threshold required.

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 67.As of the argument pertaining to Cst. Dunn wrongly misleading the authorizing Justice by mentioning that the telemarketers wrongly represented that a medical kit was mandatory, with respect, this is a wrong interpretation of what is written in the affidavit.68.Indeed, Cst. Dunn referred to the fact that the telemarketers falsely represented that they were accredited by the CSST. Cst. Dunn also mentioned that the telemarketers falsely suggested to the customers that the kit provided by International Secure Technologies was the only kit conforming to the new legislation (par. 105). Therefore, there was no misrepresentation on this regard to the authorizing Justice.69.As of Me Peris' request to cross-examine Cst. Dunn to verify the authenticity of the allegations contained in the affidavit, with respect, it appeared to be a fishing expedition and moreover, did not meet the threshold required. 70.Thus, the Court estimated that there was not a reasonable likelihood that the cross-examination on all different subjects mentioned by him would have undermine the basis of the authorization and again the allegations did not meet the threshold.71.With respect, the Court has consequently rejected Me Peris' request to cross-examine Cst. Dunn. b) Me Isabel J. Schurman's submissions 72.The Court has authorized on the same legal basis Me Schurman to cross-examine Cst. Dunn. 73.Indeed, if the evidence she proposed to introduce reveals that no garbage were left at the time and date indicated in the affidavit, then it could undermine the basis of the authorization. It therefore meets the requisite threshold. 74.Under those circumstances, the Court has decided that there was a reasonable likelihood that cross examination could elicit evidence of probative value to the issue for consideration on a review of the search warrants. 75.Therefore, the Court has authorized the cross-examination of Cst. Dunn on the subject of the search and seizure of the garbage that took place on June 16, 2007 and the present judgment concern these matters. 76.A review of the evidence heard is then necessary.1. The evidence77.Following Cst. Dunn's cross-examination, seven witnesses have been heard on behalf of the Applicants. The evidence can be summarized as follows:78.Cst. Dunn explained that he has proceeded with officers Yvan Lapierre and Yves Leblanc to search the garbage pertaining to the 615 Belmont on Saturday, June 16, 2007. The edifice is a six storey commercial building where nobody lives. He knew before the search that the Competition Bureau had made some surveillance of the building. He does not know why the search was scheduled for June 16th, but he believes that it is because it would be easier to search the garbage on a Saturday, while nobody is at work, rather than on a weekday. 79.The garbage bins were located 15 steps away from the street. Mr. Yvon Gervais,

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 a private investigator hired by the Applicants, corroborated that the bins are 23 feet away from the street. They were lined up in a row against the back wall.80.The bins can be seen from Union Street and also from the alleyway behind the parking lot. The bins were not locked and they were labeled "déchet" ("garbage").

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 There were no other signs. The area is not guarded. Cst. Dunn believed that the bins were abandoned. 81.Although the evidence demonstrated that there were only four bins, he said that there were five.

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 82.They chose the bags at random. Cst. Dunn took out one bag and Cst. Lapierre two. The one bin Cst. Dunn has chosen was full to the top and the bags it contained were heavy.83.They left the premises immediately after. They did not open the other bins, nor did they pick up all bags. 84.Once at the RCMP Headquarter, they opened the bags. There were some

papers among the garbage. The papers were not shredded, some were torn and some were ripped. Some were collected, some others were loose, some were perfectly clean and some others were stained. There were lunches left over, newspapers, coffee cups and other food trash. 85.They threw away the garbage and listed the documents of interest. No

photographs were taken. Cst. Dunn did not have thoughts about going back after realizing the importance of the documents found, since he was satisfied of the discovery. The items of interest seized are listed in his affidavit. 86.The next witness, Stéphane Bessette, was working as a truck driver for RCI Environment Inc., a private company in charge of collecting the garbage at 615 Belmont. 87.Stéphane Bessette testified that although he has no particular recollection

of June 15, 2007, he can tell, only with the help of some documents called "Commercial route summary"6, that garbage were picked up on June 15 at 615 Belmont. 88.The document indicates all the customers' name for which he had to collect the garbage. The 615 Belmont is listed as being the twentieth one on his list. He was used to pick up the four bins displayed aside the wall at approximately 7 o'clock in the evening every weekday unless his way was blocked by some other truck. He would then come back sometime around 10 p.m. The garbage was never picked up on Saturdays and Sundays. 89.At the end of the day, he always goes weight the truck and then unloaded it in some hole. He ignores what happens with the garbage once unloaded but he assumes that they are later picked up, compacted and transferred to a burying site.90.The next witness, Claudie Trade, a cleaning lady, was employed by a company named Omega. She was assigned to work at 615 Belmont. 91.She testified that she had the responsibility to collect the garbage and dust down on the six floors of the building. 92.She had to follow orders. A person in the company named "André" used to tell her to be careful with the papers. 93.Some baskets, filled with papers, were hung up on the walls. She had to empty them and put the papers into different bags. She was not the one to shred them but someone else used to do it. 94.She was told to separate papers from the rest of the garbage. She used to throw the dirty one in the garbage and placed the clean one in the baskets to be shredded. 95.Her usual co-worker was Brian Whiton. She did not work with him on those

6 filed as R-5

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 specific dates of 14 and 15 of June 2007 because he was to attend a Jehovah's Witnesses convention over the weekend. Brian Whiton confirmed it.96.Claudie Trad then worked, only for those two nights, with a young man

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 named "Philippe". That 15th of June, she could not perform her duty as usual because Philippe had to go somewhere else. They rushed to do a quick cleaning of the entire building. While she usually spent four to six hours to clean the building that night she only worked two and half hours. They left the premises no later than 10 o'clock that night. 97.She picked up the garbage on all six floors but she did not bother with the

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 papers. According to her testimony, no paper has been taken out that night but the garbage bags were taken out. There were approximately two and a half or three garbage bags instead of the regular four ones. It contained bottles, food and meals. She said that there is a kitchen on the 6th floor and a cafeteria on the 3rd floor. 98.She said that she did not have to take out the garbage bags since it was Brian

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 Whiton's responsibility. He used to take them out at around 10 o'clock at night. She would sometimes return with Brian Whiton on Saturdays to finish cleaning but she recalls not having gone back that 16th of June, Brian Whiton not being available. 99.Claudie Trad was always putting on the alarm system before leaving the building.

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 100. Had she had not talked with Brian Whiton before testifying, Claudie Trad said that she would have never been able to recall that evening of June 15, 2007. 101. The next witness, Mr. Vinh Tho La, was employed by the Omega Company and used to work at 615 Belmont from July 2006 to October 2007, as the handy man and the garbage supervisor. He used to collect the bottles. He also had to shred some papers but only those placed in boxes located in three different points. Two boxes were on the third floor and one was on the sixth floor, close to the reception. Once shredded, he used to drop the papers in the garbage bins nearby the entrance, outside the building. He never took out shredded papers later than 5 o'clock in the afternoon. 102. Vinh Tho La used to work from 9 a.m. to 5 p.m. He cannot tell how many persons used to work in the building but he said there were many and some stayed over 5 o'clock in the afternoon. 103. He always had a lot of papers to shred and in order to spare some garbage bags he was sometimes putting the papers directly into the bins. His responsibility was to see to only three boxes while the night shift people were taking over and were simply throwing the papers away. The night people did not have to shred the papers. He had to. According to Vinh Tho La, Brian Whiton was starting his shift at 7 o'clock in the evening and he was only throwing the papers away. 104. When asked if he has any recollection of that night, Vinh Tho La answered that he has no precise remembrance of June 15, 2007.105. The next witness, Christine Clément, a private investigator hired on behalf of the Applicants on March 31st, 2008, said that she had to verify if the garbage were located in such a place so that their owner had some expectation of privacy. 106. She executed her mandate with the assistance of her colleague, Yvon

Gervais. She took some pictures of the garbage bins7 on April 1st, 2008. She said that there were four bins beside the wall of the building, next to a door that does not open from the outside. 107. There is some written indication on the wall heading to the parking lot that forbids anyone unauthorized to park its vehicle. The sign reads as follows: "Private property strictly no parking". 108. There is no fence, no wall and no sign to inhibit the entrance and no sign indicating private propriety. Moreover, a lane leading to the building connects to another back-alley and everybody can see the garbage bins from the back-alley and also from Union Street. 109. The next witness, Yvon Gervais, said that he took some measures, namely from the sidewalk to the garbage bins, and from the entrance door to the garbage bins. There are 23 feet from the sidewalk to the garbage bins and 16 feet from the entrance door to the garbage bins.110. The next and last witness, Sonia Hovington, worked at 615 Belmont since 2006 and was assigned to prepare the paycheck for over 250 employees. She used to start processing the keypunch each Monday of the following week. She used

7 Filed as exhibits R-8 to R-14

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 to be the only one to have access to the computer, except during summer 2007 where another woman worked a short period of time with her and had access to her computer. That person had been terminated at the end of June. 2. Discussions 111. At the end of the hearing, the Applicants and the Mis-en-cause, have urged this Court to render judgment on the following two questions of law.

112. The first question raised is whether the Applicants had reasonable expectation of privacy with the garbage located at 615 Belmont so that s. 8 of the Charter would have been infringed. 113. The second question is, even if the seizure of the garbage did not violate s. 8 of the Charter, was the authorizing Justice fraudulently misled by the information revealed in the affidavit about the garbage seizure and, if so, did this state of affairs of such nature that it resulted to a jurisdiction error. 114. Me Schurman affirmed that all possible evidence have been laid before the Court so that no trial Judge would be in any better position to decide on the Charter motion. 115. Moreover, all the Applicants and the Mis-en-cause, the Attorney General of Canada, admitted that, should the information provided from the garbage seizure be excluded from the affidavit, the remitted part would be insufficient to establish grounds enabling the warrant to emanate. 116. In that context, face with the position of the parties, the Court has decided to dispose of the questions raised.

3. Did Applicants have reasonable expectation of privacy over the garbage located at 615 Belmont so that s. 8 of the Charter was infringed?

117. The Alberta Cour of Appeal, in R. v. Patrick, [2007] A.J. No. 1130, 2007 ABCA 308, 81 Alta.L.R. (4th) 212, 417 A.R. 276, 2007 Carswell Alta 1374, [2008] 1 W.W.R.600, faced with a similar case, has concluded that the accused, having abandoned his garbage, had no reasonable expectation of privacy such that there was no violation of s. 8 of the Charter rights. 118. In this case, police investigators suspected that Patrick was operating an ecstasy lab in his home located in Southeast Calgary. On six separate occasions, police officers conducted a search of Patrick's garbage, which involved seizing garbage bags located inside garbage cans that were placed in the receptacle at the back of Patrick's property. The bags were readily accessible to the public since the garbage cans had no lids and the receptacle did not have any doors to cover the opening into the alleyway. Nonetheless, the officers did have to reach over the property line in order to retrieve the garbage bags. The police identified items within at least four of the bags that were indicative of an ecstasy lab operation. These items, along with other information gathered from the police investigation were used to obtain a search warrant for Patrick's residence.119. Justice Ritter for the majority reviewed the principle governing seizure and at

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 paragraphs 10 and 11, said the following:

« Expectation of Privacy Over Garbage

10 Section 8 of the Charter provides that "Everyone has the right to be secure against unreasonable search or seizure."

11 Section 8 is intended to protect people, not places: Hunter v. Southam, [1984] 2 S.C.R. 145 at 159, 11 D.L.R. (4th) 641 (per Dickson J., as he then was). The Supreme Court in R. v. Plant, [1993] 3 S.C.R. 281 at 293, [1993] 8 W.W.R. 287 explained: In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual.

Section 8 does not protect against every search or seizure, and requires a balance between a citizen's reasonable expectation in maintaining privacy over one's personal activities with the need of police officers to effectively investigate criminal activity: Hunter at 159-160. The critical question is whether a reasonable expectation of privacy exists over the monitored activity: R. v. Tessling, 2004 SCC 67 at paras. 12 - 17, [2004] 3 S.C.R. 432, R. v. Wise, [1992] 1 S.C.R. 527 at 533, 70 C.C.C. (3d) 193 (per Cory J.). The requisite analysis involves a principled, non-categorical approach that focusses on the totality of the circumstances: Tessling at para. 19, R. v. Buhay, 2003 SCC 30 at para. 18, [2003] 1 S.C.R. 631. Certain factors have been identified to assist in this analysis, which include, but are not limited to, the accused's presence at the time of the search, possession or control of the property or place searched, ownership of the property or place, historical use of the property or item, ability to regulate access, existence of a subjective expectation of privacy, and the objective reasonableness of the expectation: Buhay at para. 18. »

120. Justice Ritter proceeded then to review criteria mentioned by the Supreme Court in Edwards, [1996] 1 S.C.R. 128, such as the presence of the accused at the time of the search, control overt the property, ownership of the property, historical use of the property, ability to regulate access, existence of a subjective expectation of privacy and objective reasonableness of the expectation as shown in paragraphs 15 to 44 which read:

« Presence/Absence of Accused

15 One of the factors that may be considered in assessing whether a reasonable expectation of privacy exists is the presence or absence of the person claiming the privacy at the time of the search. There was no direct evidence on this point, though it is perhaps safe to presume that the officers who reached into the receptacle were careful to ensure that Patrick was not present at the time. Indeed, the police took steps on the first occasion to

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substitute garbage bags so that Patrick would not be aware of their having been there.

Control Over the Property

16 Patrick enjoyed little or no control over the garbage at the time of the purported search. While technically still within the boundaries of his property, Patrick relinquished control over his garbage, in a practical sense, by placing it into the garbage receptacle to be picked up by the garbage collectors. Anyone living in a major metropolitan area knows that once garbage is left for pickup, it may be subject to disturbance by bottle collectors and others looking for discarded treasures, as well birds, dogs, and vermin. Anyone placing garbage in an open receptacle enjoys virtually no control over it.

17 Patrick relies on the case of R. v. Truong, 2002 BCCA 315, 169 B.C.A.C. 97, where the B.C. Court of Appeal held that the loss of control that comes with checking luggage with an airline does not result in passengers relinquishing all expectations of privacy so as to justify a police search of that luggage. However, there is a quantum difference between the situation where luggage is entrusted to carriers with the expectation that it will be returned intact at the end of a trip and the scenario where garbage is entrusted to municipal garbage collectors with no expectation that it will ever be returned. In the latter scenario, the garbage is gone and all control over it is lost forever. Truong does not advance Patrick's argument in these circumstances.

Ownership of the Property

18 Whether Patrick was the owner of the contents of the garbage bags is dependant on whether placement of the garbage bags in a receptacle designed for garbage pickup constitutes an abandonment of that garbage. Several appellate and trial courts have dealt with this issue. While some cases involve garbage left on pubic lands adjacent to the resident's property, others dealt with situations in which the garbage was on the resident's land but was placed for pickup. With one exception, all courts dealing with the issue view garbage as abandoned property and concluded the source of the garbage did not enjoy an expectation of privacy in it. The cases also do not differentiate between garbage located adjacent to the householder's property and garbage located on the householder's property. What is important is the intention to part with what is in the bag, not where it is put.

19 The British Columbia Court of Appeal considered this issue in R. v. Krist (1995), 62 B.C.A.C. 133, 100 C.C.C. (3d) 58, where police seized items from opaque garbage bags that Krist had placed at the curb for pickup. The bags were left on public property. The B.C. Court of Appeal held that once property was discarded and placed for pickup, it had been abandoned by the householder. The court concluded (at para. 28) that "when trash is abandoned, there is no longer a reasonable expectation of privacy in respect of it."

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20 In R. v. Kennedy (1996), 3 C.R. (5th) 170, (sub nom. R. v. Joyce and Kennedy) 95 O.A.C. 321, police investigating a robbery and murder went with municipal personnel and seized garbage left by Kennedy outside his apartment building. It is unclear whether the garbage was located on or just off the lands on which Kennedy's apartment was situated. From the garbage, police obtained information linking Kennedy to the robbery. The trial judge found Kennedy to have abandoned the contents of garbage and did not enjoy any expectation of privacy in it. The Ontario Court of Appeal refused to interfere with the trial judge's finding, noting that Kennedy did not testify on the issue.

21 In R. v. Taylor, [1984] B.C.J. No. 176 (QL), Toy J. of the B.C. Supreme Court dealt with a circumstance in which police seized garbage left for pickup by the accused at the rear of his property in a spot adjacent to the back alley where garbage was normally left. Again, it is unclear whether the garbage was located on the accused's property, although use of the word "adjacent" implies that the garbage was on the property. In concluding that the accused did not enjoy privacy rights over the garbage, Toy J. observed at para. 49: "I am unable to characterize the removal of garbage apparently abandoned for delivery to the garbage disposal area as an unreasonable seizure."

22 In R. v. Delaa, [2006] A.J. No. 948 (Q.B.)(QL), Park J. dealt with a situation in which the police sought to obtain a DNA sample from Delaa in order to determine if it matched DNA found in relation to a sexual assault. An undercover scenario was conducted in which Delaa was convinced that he was a random taste tester of various flavours of gum. The "tester" provided Delaa with a Dixie cup for the used gum, from which DNA samples were taken and sent to a lab for analysis. Park J. held that Delaa "cavalierly disposed of the gum in a manner that could not have carried with it any expectation of privacy or secure disposal."

23 In R. v. Tam, [1993] B.C.J. No. 781 (S.C.)(Q.L.), police conducted warrantless searches of garbage bags left lying on the pavement for garbage collectors. To access the bags, the police officers stepped across the property line. The trial judge considered this to be a trespass in only the most technical, trivial and insignificant sense, and concluded that the contents were abandoned items that were left to garbage collectors to do with as they liked and there was no reasonable expectation of privacy in those contents.

24 R. c. Allard, [2006] J.Q. no 3377, 2006 QCCQ 3080 involved facts identical to those on this appeal, in that a police officer stood on public property and reached into a receptacle on private property to retrieve garbage bags. The analysis of the court is as follows (at paras. 22-27):

1. Soulignons que nous n'avons pas à statuer sur la saisie de sacs à ordures placés à proximité de la porte de la résidence, dans ou à l'extérieur d'un bâtiment adjacent à cette résidence. Il s'agit de sacs qui ont été placés à un endroit désigné et propice à la cueillette par les éboueurs, le jour convenu pour cette opération.

2. Qui plus est, les sacs se trouvaient à proximité d'une boîte conçue pour les

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recueillir avant le moment prévu pour leur cueillette.

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3. Il nous apparaît clair qu'à 5 h a.m., moment où les agents se sont présentés à l'adresse en question, le résidant s'était départi de la possession des sacs en les ayant placés à un endroit pour qu'on puisse les prendre. À la limite, on pourrait conclure que l'occupant du 1628 Place de l'Étoile avait fait le choix que les éboueurs ou toute autre personne puisse se les approprier.

4. Prétendre que ce dernier conservait un droit de propriété exclusif lui permettant de récupérer les sacs, même lorsque ramassés par les éboueurs, serait contraire au sens pratique du geste de "mettre ses poubelles au chemin."

5. Et dans ce sens, avec respect pour l'opinion contraire, nous ne partageons pas l'opinion de notre collègue Bédard dans la décision R. c. Andrews, précité, mais plutôt toute l'analyse du juge Rowles de la C.A.C.B., dans R. c. Krist précité, plus particulièrement aux paragraphes 10, 22, 25, 26, 27 et 28 où il conclut que l'habitant d'une maison, déposant ses ordures à l'endroit prévu pour leur récupération, a renoncé à leur propriété et donc n'a aucune expectative de vie privée sur lesdits sacs.

6. La saisie et la fouille qui s'en suivent n'enfreignent pas les droits de l'accusé en vertu de la Charte canadienne des droits et libertés.

25 However, in R. c. Andrews, [2005] J.Q. No. 8595 (C.Q.)(Q.L.), Bedard J.C.Q. held that garbage could be expected to include items that reveal intimate personal information and that putting garbage out for pickup did not amount to abandonment but merely constituted compliance with civic obligations to ensure an orderly disposal of garbage. He also determined that citizens would expect that garbage placed in opaque garbage bags would be entrusted to garbage collectors and destined for destruction.

26 With respect, I disagree with this assessment as it does not equate with the myriad of ways in which garbage is handled in Canada. In some cases (Edmonton for example), all household garbage goes to a sorting facility where all bags are opened and sorted so that compostables go to a composting facility, recyclable items are taken to a recycling facility, and the remaining garbage ends up in a landfill. This sorting process, which is carried out by individuals who can see what is in every garbage bag, demonstrates that any expectation of privacy is eliminated in the disposal of garbage. In other cases, much of the household garbage generated by an entire city is transported to disposal sites across great distances. Citizens could hardly expect that the trucks transporting garbage would never be involved in collisions compromising the load, or never lose a single item from their loads during a trip of literally hundreds of kilometres. One need only follow a garbage truck a short distance to realize that not all of its contents remain in the truck. Persons to whom garbage is entrusted have neither the obligation nor the means to protect the privacy of its donor.

27 In effect, methods of garbage disposal are as varied as there are municipal jurisdictions. In virtually every jurisdiction, disposal is far from secure. This fact is demonstrated by the "not in my back yard" phenomenon that surrounds any attempt to establish a new disposal site anywhere. One invariable concern expressed by those living in the vicinity of a proposed

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disposal site is that refuse from the site will end up on their property.

Historical Use of the Property

28 Assessment of the historical use of garbage is problematic. The items contained in garbage cover the totality of human activity. Things that people discard range from the personal to the manifestly impersonal, and from items that disclose practically nothing about the person who is the source of the garbage, to items that may disclose intimate personal details about that person. Often, garbage consists of packaging and is only used to contain things until they are used. Some garbage is organic and may include everything from vegetable peelings to table scraps. The fact that these are being discarded indicates that they are unwanted and have no historical use at all. All garbage has one thing in common. The donor no longer wants to keep the item. Often what may have historically been used for personal or intimate functions are discarded when it is irreparably broken or broken to a point where repair is uneconomical. All of this is to say that there is nothing in the historical use of garbage to demonstrate that Patrick maintained an expectation of privacy in it. Its history as garbage would have consisted of, at most, being put in a garbage can or bag in or around Patrick's home and then being put into larger opaque bags that were placed in the receptacle.

29 In argument, counsel suggested that a householder's expectation of privacy is at least partially maintained with respect to garbage because sometimes people will discover that items have been put in the garbage in error. So long as the garbage is still on the property, the householder may retrieve and search the bag for the lost item. This argument is purely theoretical, as Patrick did not testify that he made use of any item once it became garbage, nor did he testify that this had happened at any time relative to the times the searches of his garbage were conducted. Nonetheless, I do not consider this line of reasoning to detract from the notion that placing items in the garbage exhibits an intention to abandon it, notwithstanding any later misgivings on the part of the householder.

Ability to Regulate Access

30 In much the same way that he relinquished control over the garbage, Patrick also gave up all ability to regulate the use of the garbage. The receptacle is open to anyone who wanders by the back of Patrick's property. Visually, the receptacle is hidden from view from inside the property but wide open from the outside. If Patrick had been sitting on a lawn chair in his backyard, animals, bottle pickers, nosey neighbours, persons making use of his receptacle for their garbage, and the police might well inspect his garbage without Patrick knowing that it was going on. For all practical purposes, Patrick's ability to regulate the use of the garbage was virtually nonexistent.

31 Once the garbage was picked up, Patrick lost what minimal ability he had to regulate access while it was in the receptacle. Patrick argues that he would expect that it would be transported to a disposal site and be placed there exactly as it left the receptacle. Like the B.C. Court of Appeal in Krist, I

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do not share Patrick's belief that citizens regard the garbage disposal system as a secure means of ensuring privacy. As discussed above, there is a substantial risk that garbage will somehow be released through the garbage collection system.

32 Another flaw with Patrick's reasoning in respect of his claim to a residual expectation of privacy is that it imposes a positive legal obligation on third parties to protect the discarder's privacy interests. This would not be a realistic imposition on one's fellow citizens, even if they happened to be employed in some sense by the government under s. 32(1) of the Charter. On the contrary, an individual seeking to maintain privacy against actions by non-state actors assumes the responsibility to take the necessary protective measures: R. v. Dunbar and Logan (1982), 138 D.L.R. (3d) 221 at 250; 68 C.C.C. (2d) 13 (Ont. C.A.). See also Rumping v. D.P.P., [1962] 3 All E.R. 256 (H.L.), where a private letter from an accused husband to his wife fell into the hands of the authorities.

33 In theory, Patrick could have constructed a different receptacle using a lock and key to ensure that only he had access to it. He could also have ensured that only garbage personnel remove the garbage by delivering it to the receptacle just before pickup and remaining with the bags until they were picked up. However, there is no evidence that Patrick took these (or any other) steps so as to regulate access to the receptacle or to the garbage bags themselves.

Existence of a Subjective Expectation of Privacy

34 Patrick argues that the trial judge failed to fully appreciate the subject matter of the search, and he reasons that unlike a search measuring heat emanating from a house, garbage can reveal much about lifestyle choices, DNA, and personal and financial choices of the occupants of a home from which the garbage derived. Patrick argues that this investigatory technique would be expected to expose intimate details of his lifestyle or core biographical data.

35 Since Patrick did not testify on this issue, it is unknown what items were in his garbage that would have had this effect. The only items that are specifically identified are those used by the police to obtain the warrant, and these items reveal that Patrick was involved in criminal activity and little else. They cannot constitute intimate details of lifestyle or core biographical details to which privacy protection ought to be extended.

36 Patrick nonetheless argues that garbage, by its nature, can include items that expose intimate details or core biographical data about the person who generated what is in garbage. While that may be true, that alone does not lead to a presumption that his garbage would have included such information. Even if it did, any presumption is undermined by the reality that putting items in garbage bags and then leaving them for pickup in a publicly accessible receptacle amounts to an abandonment of those items, and any information that may derive from those items.

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37 The Supreme Court in Tessling held at para. 40 that: "a person can have no reasonable expectation of privacy in what he or she knowingly exposes to the public, or to a section of the public, or abandons in a public place": see also R. v. Stillman, [1997] 1 S.C.R. 607. Putting items in garbage bags is closely aligned with public disclosure of information, since this act demonstrates that the source of the garbage does not wish to control the dissemination of the garbage's contents. As discussed above, persons who put things in garbage have to be aware that the garbage handling system is far from secure. While the information retains its character as personal, it loses any expectation of confidentiality or privacy. I conclude that placement in the receptacle exposed the contents to at least part of the public.

38 Patrick says that what mattered was not the bags themselves but what was inside the opaque bags. I do not read the trial judge's decision as showing that he had lost sight of that fact. He determined that the bags were in plain view. They were searched and information useful to the police was obtained. What remains constant in this case is the fact that what was seized was garbage placed next to a back alley for pickup. On any measure, the expectation of privacy respecting garbage is substantially less than what one would expect for items left but not abandoned in a yard and more so relative to items found in a home. Patrick did not have an expectation of privacy in the abandoned garbage.

Objective Reasonableness of the Expectation

39 Patrick argues that the trial judge failed to consider or downplayed the intrusive nature of trespass on private property by the police. He takes the position that the police violated the common law, the Alberta Petty Trespass Act, R.S.A. 2000, c. P-11 and the City of Calgary garbage bylaw when the officers reached into the receptacle and removed the bags.

40 The Petty Trespass Act makes it an offence for anyone to enter on land that is surrounded by a fence. The evidence at trial disclosed that the receptacle is built into the fence along Patrick's property line and the bags were either directly on the property line, or within garbage cans located on Patrick's property. Although the indentation faces the alley, the garbage receptacle can be said to belong to Patrick. The trial judge made no finding as to whether the police breached the Petty Trespass Act.41 Even if the police committed a trespass, it was of a de minimis nature. Further, Patrick's arguments that provincial statutes or municipal bylaws provide householders with any assurance that their garbage will be treated with confidence must always be tested against what actually happens in society. Here, Patrick placed the garbage in the receptacle for pickup and had to expect that it would be removed by garbage personnel. Patrick would also expect that living in a major metropolitan area, his garbage would potentially be subject to investigation by persons other than garbage personnel. Although the placement of garbage into a readily accessible receptacle does not, in law, amount to a licence to the public to inspect, it

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does serve to greatly reduce the viability of Patrick's assertion he expected his garbage was so sacrosanct that no one would ever lay their eyes on its content. In my view, reasonable persons would not expect that garbage is secure and private, and would conclude that garbage is not obviously private in nature.

42 Patrick argues that the police tactic in searching Patrick's garbage was not objectively reasonable. The preponderance of the case law suggests otherwise. If there is no expectation of privacy, there is no Charter breach and the police tactic is constitutional. That ends the inquiry.

43 Patrick also says that the trial judge erred in considering that the place searched was the air space within the receptacle inside the fence line. I perceive no error in this determination. The place searched was, at most, a garbage receptacle. It was not Patrick's house or garage or backpack or automobile. It was a place that raises minimum reaction in any assessment of the hierarchy of places that one would normally expect to be private.

Conclusion Regarding Privacy

44 The trial judge did not err in his fundamental conclusion that Patrick maintained no expectation of privacy in the contents of the garbage, regardless of whether the alleged privacy interest was territorial or institutional. »[Underlining added]

121. Moreover, the Ontario Court of Appeal in R.v. Krist, [1995] C.C.J. No. 1606, 62 B.C.A.C. 133, 100 C.C.C. (3d) 58, 42 C.R. (4th) 159, 31 C.R.R. (2d) 351, 28 W.C.B. (2d) 193, seized with similar search of garbage, said at paragraphs 27 and 28 that:

« a. We are not concerned in this case with a search which invaded the sanctity of the home. What we are concerned with is whether there is reasonable expectation of privacy in relation to information that may be gleaned from trash which has been abandoned by a householder to the vagaries of municipal garbage disposal.b. In my respectful view, the learned trial judge was correct in rejecting the appellant's argument that there had been a violation of his s. 8 Charter rights. Putting material in the garbage signifies that the material is no longer something of value or importance to the person disposing of it, and that there is no reason or need to retain it. In my opinion, when trash is abandoned, there is no longer a reasonable expectation of privacy in respect of it. [Underlining added] »

122. Me Schurman submits that there was reasonable expectation of privacy over the items seized from the garbage, namely because the companies are on site and have a certain control over the documents which are to be shredded before ending into the garbage bins. The companies hired and shared the same cleaning company. 123. It is also submitted that a private company collected the garbage from the 615 Belmont every weekday and the garbage bins are placed beside the wall at the back of the garage whereas neighbors place their own on the sidewalk to be picked up by

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 the City of Montreal.

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 124. The Court with respect does not agree for the following reasons.125. The evidence did not demonstrate that Applicants are present on site at the time the garbage bins are collected. Indeed, although employees received orders to shred papers, no one supervise his or her work. 126. Therefore, if for some unexpected reason, as in this case, someone is in a hurry or does not always comply with the rules, it does not mean that there is any reasonable expectation of privacy on items abandoned if papers are found in the garbage. 127. Moreover, as the evidence demonstrated, trash remains most of the time outside the building all weekend in the bins as cleaning employees put them outside after 10 o'clock at night. 128. In addition, Claudie Trade testified that she even had already worked until 3 o'clock in the morning or had come back on Saturdays to finish cleaning with Brian Whitton.129. Besides, no security guard is on the premises at any time during weekdays or the weekend. Although, there is a private parking sign, there is no fence, the garbage are not placed in a locked shed nor in any other secure locked place. 130. Instead, the bins were left outside, leaning against a wall, with the

word "déchets" ("garbage") written on and placed from where it can be seen from both the alleyway and Union Street. 131. Evidence proved that the bins were located 23 feet from the street and 16 feet from the door where everyone can access easily.132. The mere fact that the city does not collect Applicants' garbage is not

relevant. Indeed, Applicants hired a private company so that their collectables can be remove every day, instead of once a week. The evidence clearly proved that they needed to have garbage removed often. Both Claudie Trade and Stéphane Cossette testified that there were usually three to four bags full of trash taken out every day. 133. As to the submission that the building has an alarm system so that only permitted persons can gain access to it, with respect, the Court considers that the presence of an alarm system is of no importance in regards with the trash.134. Indeed, an alarm system prevents intruders from entering in the premises. It does not preclude anyone from searching in garbage bins left unlocked in publicly accessible receptacles which, in addition, can easily be seen by anyone. 135. The Court concludes that Applicants had no reasonable expectation of

privacy in respect with their abandoned trash. 136. Therefore, no search warrant was needed to search and seize Applicants' garbage. 4. Even if the seizure of the garbage did not violate s. 8 of the

Charter, was the authorizing Justice fraudulently misled by the information revealed in the affidavit about the garbage seizure and, if so, did this state of affairs of such nature that it resulted to a jurisdiction error?

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 137. Me Schurman submitted that if the seizure did not infringe the Charter,

the authorizing Justice was misled because the evidence showed that litigated papers could not have been found in the garbage as mentioned by Cst. Dunn in his testimony. 138. Me Schurman argued that too many valuable papers were found at random in the garbage bins at the same time rendering such a coincidence highly improbable. 139. Me Schurman emphasized that according to Cst. Dunn's affidavit two

previous employees turned out to be informants. Me Schurman brought up at the same time that curiously one woman who had worked in the payroll department affected to confidential information was dismissed somewhere at the end of June 2007. 140. To summarize, Me Schurman submits that as most of the documents seized establish links between a group of companies and Georges Haligua Cohen, Eric Chenail and Amalia Di Falco it is too much a coincidence to be a coincidence. Furthermore, without those links the investigators would not have had sufficient grounds to obtain a search warrant. 141. Although these theories might at first sight appear attractive, with respect, after a close look analysis, they do not convince the Court on the balance of probabilities that Cst. Dunn had perjured himself or has misled the authorizing Justice and that the documents were not seized in the garbage bins. 142. Indeed, Cst. Dunn has testified that the documents were seized in the

garbage bins. He was questioned regarding the layout of the building and he gave a fair description of the premises. 143. Yet, he testified that the bins were located 15 steps away from the street leaning against the back wall of 615 Belmont with the word "déchets" ("garbage") written on the top. Yvon Gervais confirmed this information with the exception that the bins were 23 feet away from the street. 144. Cst. Dunn mentioned rightfully that the area is not guarded, that there is a short driveway before entering the parking lot and that he could see the other side of the parking lot from Union Street. 145. He was not sure if the wall goes up and he amounted the bins to five instead of four. He mentioned that they were not locked and that there was no other sign written on the bins but the word "déchets" ("garbage"). Then again his testimony was confirmed.146. Cst. Dunn mentioned that some documents were stained with left over lunch, supper, newspapers, other "scrap" of paper, coffee cup and food "scrap". All three bags contained trash. They opened the bags and went through them. They did not analyse the documents at that point.147. Even if Cst. Dunn could not remember certain details, namely if some

particular documents were collected or loose, it does not tarnish his testimony taken as a whole. In fact, although he was asked many questions, he always appeared to be outspoken, straight, frank and honest. 148. As to the argument that the large quantity of valuable documents found

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 in itself would make the coincidence improbable, it is to be noted that not all 400 documents found were valuable but only those mentioned in the 28 paragraphs out of the 203 paragraphs contain in the affidavit8. 149. Moreover, those documents would not have drawn the attention of an

8 67, 75, 76, 79, 80, 97, 101, 109, 141, 142, 143, 144, 146, 147, 148, 149, 151, 152, 153, 154, 155, 156, 160, 161, 162, 163, 164, 179

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 ordinary person. Yet looking at them in piece meal the documents mean nothing, seem useless and the information appear banal.150. Indeed, those documents happen to be helpful only in the hands of informed

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 investigators only once analysed and interpreted with the rest of the information they gathered.151. As to the allegation that the documents might have been given to the police

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 by an informant, there is no evidence of such. Only speculation based on the assumption that two persons who have worked at 615 Belmont have become informants and also based on the assumption that Cst. Dunn would have perjured himself and would have fraudulently misled the issuing Justice. 152. As stated previously, though documents were not supposed to leave the

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 building without first being shredded, people could do otherwise now and then or in certain particular circumstances.153. Indeed, Applicants did not testify and there is no evidence that they were

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 always on site at the time the documents were placed in the garbage and when the bins were collected. Likewise, there is no evidence that papers that would have been left on Friday were found on any of the six floors the following Monday morning.154. Sonia Hovington's testimony is also significant particularly on two different

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 points. Namely because she said she used to wait until her paper basket was full before she emptied it. Therefore, this might very well explain the presence in the garbage bins of one document that usually emanate from her department9. In addition, Sonia Hovington agreed that a misprint could explain why the document listed three names instead of only one or five at the same time, as it should be.

9 R-18

500-36-004533-074 Page 500-36-004534-072500-36-004535-079500-36-004536-077500-36-004537-075 et 500-36-004538-073 155. As to the female person who has worked with her a short period of time, Applicants imply that she might have been one of the informants mentioned in the affidavit and that she might have given some documents.156. With respect, although this person is obviously known to the Applicants, no evidence has been laid to explain who this lady was, why and when exactly she has been laid off. Since it could be as simple as she cleaned her desk before leaving and got rid of some papers in the garbage basket, the Court does not hold this argument. 157. Moreover, Claudie Trad's testimony is also significant. She was crystal clear that June 15th was not a normal evening because she was not working with her usual co-worker and she had to do a quick cleaning. 158. She really had to rush to finish early and to free Philippe who was also in a hurry to go work somewhere else. Although, she said that she did not touch anything that night but grabbed the garbage without taking the paper baskets, she said that 2½ or 3 garbage bags were put outside. 159. Claudie Trad also revealed that Philippe was not used to work with her. He worked only this once. In addition, the evidence did not reveal if Philippe knew something about the papers routine. The evidence did not reveal if they worked together on the same floor or if they split to accelerate the work. If so, there is a good possibility that Philippe picked up the papers in the baskets and put them in the garbage. 160. It must also be remembered that over 250 persons were working on the premises on different floors. A quick look at the description of the premises given by both informants leads to easily infer that many documents were left on a daily basis on all floors. That, indeed, explained the three to four garbage bags placed outside in the garbage bins every day. In that context, it would not be overly surprising that Philippe, called to give a hand to clean, would in all good faith have taken away lots of those papers. 161. Finally, Claudie Trad said that she put the alarm system on when she left with Philippe. Yet, this information is of importance in conjunction with the fact that no one else went inside the building after 10 o'clock that night or during the weekend. Therefore, if someone, other that Claudie Trad and/or Philippe would have deliberately put the documents in the garbage for the officers to pick up, this would have been done after 10 o'clock at night. However, the evidence laid by Applicants showed that no one came inside the building after Claudie Trade and Philippe had left. 162. As to the argument that someone else, at some other time and somewhere else would have handed the document to the police, to accept these proposals, the Court would have to speculate and be convince on a balance of probabilities that Cst. Dunn had perjured himself. 163. With respect, those unproved suspicions do not convince the Court, who had the privilege to see and hear Cst. Dunn, that he did not seize items in the garbage and that he perjured himself before the Court or has misled the issuing justice.

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V. DISPOSAL164. FOR ALL THOSE REASONS165. The Court DISMISSES the Applicants' Motion.

_____________________________FRANCE CHARBONNEAU, S.C.J.

HARVEY YAROSKY & NATALIE ISAACS JIM MARSHALLAttorney for Georges Haligua ÉDITH CAMPBELL

Attorneys for the PublicJEAN BERTRAND prosecution Service of Attorney for Georges Haligua Canada JULIO PERISAttorney for Express Transactions andEric Chenail ISABEL J. SCHURMANAttorney for Comexco and Megabyte Information NADIA TUCCIAttorney for PRL DANIEL BOURGEOISAttorney for Extrom S.A. CLEMENTE MONTEROSSOAttorney for IBL and ETS