Court File and Parties

Court File No.: Toronto Region Date: 2016-08-24 Ontario Court of Justice

Between: Her Majesty the Queen — and — Miladinka Uljar

Before: Justice L. Feldman

Heard on: April 21, 25, 26, 28, July 25, 2016

Reasons for Judgment released on: August 24, 2016

Counsel:

• J. Spare for the Crown
• J. Louch for the accused Miladinka Uljar

FELDMAN J.:

Introduction

[1] Miladinka Uljar entered a not guilty plea to a charge of Breach of Trust. It is alleged that in her capacity as a customer service representative of Service Ontario she unlawfully permitted private information to be made available to unauthorized persons.

[2] In support of its case, the Crown called a police officer whose own privacy was allegedly breached by her, two employees of Service Ontario, one senior business analyst from the Ministry of Transportation (MTO) and the defendant's supervisor. Ms. Uljar testified in her own behalf.

[3] The question of operator collusion arose in this case because of the fallout from a multi-police force investigation, Project Battery, organized to shut down the activities of rival street gangs, Asian Assassinz and Chin Pak. These gangs were active in drug and firearms trafficking and revenge killings.

[4] Det. Don Theriault, a member of the Asian Organized Task Force, was one of the lead investigators for this project. On March 19, 2014, Det Theriault was following a car driven by Binh Hung (Tin) Tran in which police had installed a listening device. Mr. Tran, a member of Asian Assassinz, was heard discussing with two others the license plate number BTHK 270, one associated with Peter Nguyen, a member of Chin Pak.

[5] On May 16, Det. Theriault and his team made a covert entry into 1600 Keele St, Apt. 1124, the residence of Peter Dinh Truong Nguyen, a different Peter Nguyen, one associated with Asian Assassinz, where among other contraband, one of his colleagues found a sheet of paper containing handwritten names and addresses of registered owners of certain license plates.

[6] On May 28, these two gangs were taken down in a massive police raid of a number of residences in the course of which the seizure of cell phones, including among others those of Tran and Nguyen, revealed that some of the names on the handwritten list, as well as other plate numbers, names and addresses recorded on the cell phones indicated that unauthorized Ministry information had been released to these gang members.

[7] In one of the intercepts, a gang member revealed that he had a "guy and a girl" to provide access to the MTO database. In light of this intelligence, the police investigation was expanded to determine whether MTO operators had been compromised. There is no evidence linking the defendant by electronic device, text or email to any gang members, nor is the intelligence noted above to be weighed for its truth.

[8] The police sought the assistance of the MTO to determine if an employee was providing such information to unauthorized persons.

The Evidence

[9] Sergio Danielli is a senior business analyst with the Ministry's Fraud Prevention and Business Integrity Office. He was provided a list of license plates and asked to determine which, if any, operators performed transactions in relation to those plates. He did so by extracting data from the Ministry's mainframe computer. He restricted himself to operator inquiries, then cancellation, of transactions.

[10] Mr. Danielli's forensic analysis established that on days she was working Ms. Uljar made inquiries or initiated transactions, later cancelled, in relation to the registered owners of eleven vehicles whose names and addresses ended up on the sheet of paper found at 1600 Keele St.

[11] It is a reasonable inference on the evidence that neither Tran nor Nguyen were authorized to have this information. A review of the chronology of operator information gathering with regard to the license plates of these vehicles is instructive and will be referred to later on in these reasons.

The Defendant's Employment with Service Ontario

[12] Ms. Uljar was employed as a customer service representative for seven years before losing her job as a result of being charged. As a pre-requisite to her employment, she was obliged to sign a Security and Disclosure Certificate in relation to which she undertook not to use Service Ontario's data base for her own reasons nor to provide information to unauthorized persons.

[13] Ms. Uljar told the court that she served about 100 people per day, sometimes as much as 200. She says she was always busy. She was aware the inquiries she made were being recorded and that her employer had remote access to her computer.

[14] The defendant conducted transactions that included license and sticker renewals, inquiries about registering cars, requests to change license addresses and questions about fines. She said it was not uncommon for transactions to be cancelled, for example, where the client changed their mind or had insufficient funds.

[15] Ms. Uljar raised the spectre of a rogue operator conducting at least some of the transactions questioned here. She said she might at times leave her computer to consult the manager or get documents from the stock room. She expressed trust in other colleagues working at her station as she says she herself did about once a week to obtain information for a search she was undertaking, although, incongruously, she later conceded it is rare to use another operator's computer. She claimed to sometimes forget to log off for lunch.

[16] Ms. Uljar also testified that she trusts those she serves. She points out that she would have no idea who is in front of her nor can she recall faces because of the volume. If asked to run a license plate or replace a lost driver's license, she says she obtains the individual's name and views his or her picture before asking identifying information such as address or date of birth. Regarding sticker renewal, she indicates she provides an address and asks for confirmation, conceding only that if she is unsure of the person's bona fides she does not read out the full address.

[17] She told the court that in 80-90% of all inquiries she does not ask for identification, but rather provides an address and asks for confirmation. She assumes the person before her is providing his or her correct name and says there are no clear guidelines on how to confirm a client's identity. She follows this practice despite having in the past been criticized by a customer for revealing confidential information, as well as by her supervisor who says operators are trained never to reveal the street number.

[18] Ms. Uljar was working on the days the cancelled transactions that are the subject of this prosecution were conducted.

[19] The defendant's supervisor, Jasmina Samson, testified that she has never seen operators using the computers of their co-workers nor write down information from that other computer. She agrees that sticker renewals are common and will provide an address whenever the name and plate number are typed into the computer, although if the application is premature, no information will be forthcoming.

A Pattern of Cancelled Transactions

[20] Ms. Uljar is aware that giving out registered owners' names and home addresses to unauthorized persons is a serious breach of privacy and contrary to her undertaking.

[21] The following chronology of cancelled transactions by the defendant over a relatively brief period (with one exception) involving for the most part data licensing changes indicates a consistent and disturbing pattern:

(1) August 21, 2013 – BRPD 088

On this date, Ms. Uljar ran this plate, that is, conducted a transaction listed as a data licensing change that she cancelled after obtaining the name of the registered owner and his address. On May 16, 2014, this information was found on the handwritten list discovered following a covert police entry into Peter Nguyen's residence at 1600 Keele St.

(2) February 12, 2014 – BHAM 954

At 6:17 p.m., this plate number was captured on Tin Tran's phone. On Feb. 13, at 2:29 p.m., Ms. Uljar ran the plate obtaining the name of the registered owner and his address, then cancelled the transaction. The same day, at 9:10 p.m., this information was created in a file on Tran's phone. All of this information was listed on the sheet seized by police on May 16.

(3) February 12, 2014 – 088 SOM

The file containing this plate number was created on Tin Tran's phone at 6:17 p.m., having been sent the previous day at 10:27 p.m. On Feb. 13, on two occasions one minute apart at 2:34 and 2:35 p.m., a matter of minutes after a similar transaction involving the previous one listed above, Ms. Uljar ran this plate and noted the registered owner and his address before cancelling the transaction. Later that day, at 9:10 p.m., this information was photographed onto Tran's phone, later discovered on May 16 on the hand written list.

(4) February 27, 2014 - BTBW 072

At 1:50 p.m., this plate number was on Tin Tran's phone sent by someone with the byline, "Yo got a plate". Peter Nguyen had this plate number on his phone at 3 p.m. the next day. On March 4, Ms. Uljar obtained the name of the registered owner and her address by running the plate before cancelling the transaction. The next day, at 5:03 p.m., this information was in a file created on Tran's phone. It was, as well, listed on the sheet seized on May 16.

(5) March 7, 2014 - ARMT 597

This plate number was on Peter Nguyen's phone as of 11:20 a.m. on this date and on Tin Tran's phone at 11:31 a.m. Ms. Uljar ran the plate on March 13 and recorded the name of the registered owner and his address, then cancelled the transaction. This information was sent to Tran's phone on March 18 at 12:48 p.m. It was later found, as well, on the Nguyen sheet.

(6) March 8, 2014 - BSKV 259 and BSKV 254

Files containing plate number BSKV 259 were created on Nguyen's phone at 2:26 p.m. and on Tran's phone at 10:55 p.m. On March 13, at 1:11 p.m., the defendant cancelled a data licensing change for this plate after obtaining the name of the registered owner and her address. This information was placed in a file created for Tin Tran's phone at 12:48 p.m. on March 18.

On March 25, Ms. Uljar ran both of the above plates at 2:02 and 2:04 p.m., later cancelled by her, obtaining the same information as before for BSKV 259 and the name of a car rental company and its address for BSKV 259. All of this information was on the handwritten list seized on May 16.

The evidence indicates that it is the practice at Service Ontario to run corporate plates at a computer wicket different than that used by the defendant.

(7) March 10, 2014 - BTHK 270

On this date, this plate number was photographed on Peter Dinh Truong Nguyen's phone at 10:29 p.m. and on Tran's phone at 10:30 p.m. On March 14, the defendant ran this plate and obtained the name of the registered owner, one Peter Nguyen (not the above Nguyen) with an address in Mississauga, later cancelling the transaction. This information formed part of a file created on Tran's phone on March 18 at 12:49 p.m. It was later found written on the paper list seized on May 16.

(8) March 22, 2014 - BSDD 128

This plate number was captured on Nguyen's phone at 12:38 p.m. and on Tran's phone at 2:11 p.m. On March 25, Ms. Uljar initiated a data licensing change transaction for this plate, later cancelled, and obtained the name of the registered owner and his address at 2:46 p.m. Two minutes later she conducted a replace permit inquiry, then cancelled it without obtaining any information. The name of the registered owner and his address were created in a file on Tran's phone at 2:54 p.m.

(9) BRPE 462 – March 24, 2014

On this date, at 2:06 p.m, this plate number was contained in Nguyen's phone and at 7:07 p.m. in Tran's phone. The next day, at 2:38 p.m., Ms. Uljar initiated a data licensing change that she cancelled after obtaining the name of the registered owner and his address. At 2:54 p.m., this information was part a file on Tran's phone.

(10) April 10, 2014 - AF 88818

Tran's phone photographed this plate number at 2:11 p.m. On April 17, Ms. Uljar ran the plate at 1:22 p.m., cancelling the transaction after obtaining the name of the registered owner and her address, later running it again at 2:17 p.m. without registering any information before cancelling that inquiry. Later that day, at 10:37 p.m. this information could be found on Tran's phone.

(11) April 10, 2014 - BMZF 462

This plate number was on Nguyen's phone at 11:01 p.m. and on Tran's phone one minute later. On April 17, Ms. Uljar initiated data licensing changes for this plate three times between 1:30, 1:39 and 2:18 p.m., cancelling all of them in turn. From the first transaction she obtained the name of a car leasing company, then made two subsequent attempts but came up empty. The evidence suggests, as indicated earlier, that she would know corporate searches were to be conducted at a different computer wicket. On April 20 this information was contained in a file created on Tran's phone.

[22] This latter evidence is, in particular, problematic for the accused. This was the license plate of Det. Teriault, who during the currency of all of these 2014 transactions by the defendant was conducting surveillance of among other gang members, Nguyen and Tran. On April 17, the officer was part of an active surveillance team. He did not personally request that Ms. Uljar run the plate of his leased vehicle. There was no legitimate purpose for the Teriault inquiries.

[23] This was not the defendant's only questionable transaction that day. As well, the pattern, as on other days, followed the same script without qualification.

Conclusion

[24] I am mindful that there is no onus on Ms. Uljar to explain these transactions, or even the strong inference that the unbroken consistency of the nature and end result of all of these questionable inquiries suggests the defendant acted on her own in the absence of a legitimate request in a manner that tends to exclude the possibility of coincidence.

[25] Of significance, I am not assisted in the weighing process by the testimony of the defendant. I view her evidence as self-serving and contrived in an attempt to deflect responsibility for these serious privacy breaches.

[26] Ms. Uljar suggests she was too busy to notice who was in front of her. It would defy common sense were she to be unaware of serial inquiries in short order regarding the Teriault transactions on April 17. There were other examples of multiple inquires over brief periods of time. In this latter regard, the random nature and scope of the defendant's inquiries would in my view make it unlikely she would be concerned that the pattern of her transactions would be uncovered by security monitoring.

[27] Ms. Uljar also implied that at least some of the transactions were conducted by a rogue operator in relation to which there is little meaningful basis in the evidence, reinforced in that regard by the testimony of her supervisor.

[28] Finally, Ms. Uljar says she trusts people and in the majority of cases divulges full addresses to confirm identity because there are no clear guidelines to the contrary. This runs counter to her training, the evidence of her supervisor and her own experience in having been criticized by a customer for revealing confidential information. I view this assertion, as well, as self-serving. I would not rely on her evidence.

[29] My rejection of the testimony of the defendant on the material facts in issue tends to strengthen the inference inherent in the prosecution evidence that Ms. Uljar breached her public trust: R. v. D.(J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont. C.A.); R. v. Holley, [2007] O.J. No. 3871 (Ont. C.A.).

[30] In the result, on all the evidence, there is no other reasonable inference and I am not left in reasonable doubt that Ms. Uljar did other than knowingly permit the release of private information to unauthorized persons, in the process breaching her duty to the public.

[31] In the circumstances, I am satisfied on the evidence that, contrary to Code s. 122, the defendant, in initiating these inquiries, was acting as a public officer who breached her official duties, in particular, by conduct that "represented a serious and marked departure from the standards expected of an individual in the accused's position of public trust and that she used her public office for a purpose other than the public good": R. v. Boulanger (2006), 2006 SCC 32, 210 C.C.C. (3d) 1 (S.C.C.).

[32] There will be a finding of guilt.

Released: August 24, 2016

Signed: "Justice L. Feldman"