Court File and Parties

Ontario Court of Justice

Date: 2019-11-26

Court File No.: Central East 18-09311

Between:

Her Majesty the Queen

— AND —

Caterina Petrolo

Before: Justice D.A. Harris

Heard on: November 19, 20, and 21, 2019

Reasons for Ruling released on: November 26, 2019

Counsel

Peter Scrutton and Mabel Lai — counsel for the Crown

Alan D Gold and Alex I Palamarek — counsel for the accused Caterina Petrolo

Decision

D.A. HARRIS J.:

Introduction

[1] Caterina Petrolo has been charged with one count of breach of trust by a public officer, contrary to s. 122 of the Criminal Code, and one count of attempt to obstruct, pervert, or defeat the course of justice, contrary to s. 139(2) of the Criminal Code. Both offences were alleged to have occurred at the City of Markham between June 1 and June 25, 2018.

[2] These are indictable offences. Ms. Petrolo elected trial in the Ontario Court of Justice. She pled not guilty and the trial began.

[3] Ms. Petrolo had applied for an order that the charges be stayed pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms on the basis that Ms. Petrolo's rights as guaranteed by sections 7, 8 and 11(d) of the Charter had been infringed.

[4] More particularly, the disclosure of the Substantive Event Summary (SES) by York Regional Police and its subsequent use and disclosure was in breach of section 193 of the Criminal Code and accordingly, in breach of Ms. Petrolo's section 8 Charter right to be free from unreasonable search or seizure.

[5] Further the unlawful disclosure and use of her intercepted communications violated her rights under sections 7 and 11(d) of the Charter, amounting to an abuse of process and warranting as remedy a stay of proceedings pursuant to s. 24(1) of the Charter.

[6] Alternatively, she seeks exclusion of all documents obtained for York Regional Police by Mr. Chris Bendick pursuant to section 24(2) of the Charter.

[7] Finally, she seeks exclusion of all communications intercepted by York Regional Police, also pursuant to section 24(2) of the Charter.

[8] Five witnesses were called on this application. These were Inspector Henry de Ruiter and Detective/Sergeant Les Titleman of the York Regional Police, Ms. Joy Hulton, Mr. Chris Bendick and Mr. Brian Borg. I was given an Agreed Statement of Facts which eliminated the need to hear from several other witnesses. Further, from time to time, counsel advised me of other agreed facts.

[9] Ultimately, most of the facts in this application are not in dispute.

[10] The charges against Ms. Petrolo stem from her employment as a York Region paralegal regional prosecutor, and her involvement as such in provincial offences prosecutions. It is alleged that she used her position to improperly influence the outcome of certain provincial offences matters.

[11] She only came to be investigated by York Regional Police after becoming a person of interest in Project TADEU. This was a seven-month, multi-jurisdictional investigation by York Regional Police into police corruption. York Regional Police Constable Senior was the primary target. Between June and October 2018, York Regional Police obtained four judicial authorizations which led to them intercepting communications between Ms. Petrolo and Constable Senior and one communication between Ms. Petrolo and another York Regional Police officer wherein dispositions in provincial offences matters of individuals known to the officers were discussed. These communications were then summarized, along with other information, within a Substantive Event Summary (SES) by Detective Constable Leahy of York Regional Police.

[12] Ultimately, a number of individuals were arrested, including Ms. Petrolo. The charges pertained largely to various Criminal Code and Controlled Drugs and Substances Act counts entirely unrelated to her. She was only charged with the two counts of breach of trust and obstruction of justice.

[13] She was arrested on October 10, 2018 when she attended her place of work at the Provincial Offences Courthouse located at 50 High Tech Road in Richmond Hill. She was eventually released that day on a promise to appear and undertaking.

[14] On the afternoon of her arrest, York Regional Police Inspector DeRuiter emailed a copy of the SES to York Region Regional Solicitor Joy Hulton. Ms. Hulton's assistant emailed the SES to York Region Senior Counsel for Prosecutions, Chris Bendick.

[15] Mr. Bendick used the SES to pull court records and internal prosecution records to ascertain whether what was said in the intercepted communications was what Ms. Petrolo followed through on. He then provided those records to York Police to use in their criminal case against her.

[16] He also personally investigated her actions from an employment standpoint. At the time, Ms. Petrolo was a prosecutor employed by York Region under the supervision of Mr. Bendick. Following this review, he terminated her employment on October 25, 2018.

[17] He also disclosed the SES itself to the Law Society of Ontario (LSO) in furtherance of its investigation into Ms. Petrolo's alleged professional misconduct as a licensed paralegal. He gave a statement to the LSO. He also swore an affidavit in furtherance of an LSO motion for interlocutory suspension of her license to provide legal services. The SES itself was made an exhibit in this affidavit. Finally, he gave oral evidence at the hearing of that motion.

[18] The LSO proceedings were a public forum and the Toronto Sun reported on the proceedings and published some details that were contained in the SES.

[19] Finally, the SES was disclosed by York Region to Ms. Petrolo's union, CUPE 905 in the course of a grievance process that followed her termination.

[20] The SES is seven double-spaced pages in length. It discusses nine separate instances of purported "fixing" of provincial offences notices. It includes a number of very short summaries of intercepted communications.

[21] This included six communications between Constable Senior and third parties where Ms. Petrolo was not a party.

[22] There were four communications between Constable Senior and Ms. Petrolo. A third party also participated in one of these communications.

[23] There was one communication between Ms. Petrolo and a York Regional Police officer in which they discussed a traffic ticket received by his wife.

[24] I was provided with a number of copies of the SES attached to various Exhibits. Some of these were redacted to varying degrees prior to being disclosed to counsel for Ms. Petrolo. Counsel agreed however that the copy of the SES contained in Exhibit 2 accurately reflects the document that was given to Mr. Bendick and used by him. I have included that document in its entirety as an Appendix to these reasons because I found it essential that I refer to the actual contents of the SES rather than rely on any other person's characterization of those contents.

[25] I will have more to say later about what was actually written in the SES about Ms. Petrolo's intercepted communications.

[26] As I stated earlier, counsel for Ms. Petrolo has argued that the disclosure of the SES by York Regional Police and its subsequent use and disclosure was in breach of section 193 of the Criminal Code and, as a result, Ms. Petrolo's section 8 Charter right to be free from unreasonable search or seizure was breached.

[27] That then is the first issue to be decided by me.

Were Ms. Petrolo's Section 8 Rights Violated?

[28] Section 193(1) of the Criminal Code makes the use or disclosure of an intercepted communication or disclosure of any part, substance, or meaning thereof or its existence, an indictable offence:

193 (1) Where a private communication has been intercepted by means of an electro-magnetic, acoustic, mechanical or other device without the consent, express or implied, of the originator thereof or of the person intended by the originator thereof to receive it, every one who, without the express consent of the originator thereof or of the person intended by the originator thereof to receive it, willfully

(a) uses or discloses the private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof, or

(b) discloses the existence thereof,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

[29] Section 193(2) provides exemptions to subsection (1). Crown counsel relies specifically on the exemptions contained in paragraphs (a) and (b) which read as follows:

(2) Subsection (1) does not apply to a person who discloses a private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof or who discloses the existence of a private communication

(a) in the course of or for the purpose of giving evidence in any civil or criminal proceedings or in any other proceedings in which the person may be required to give evidence on oath;

(b) in the course of or for the purpose of any criminal investigation if the private communication was lawfully intercepted;

[30] Section 8 of the Charter of Rights and Freedoms guarantees that "Everyone has the right to be secure against unreasonable search or seizure".

[31] In the Supreme Court of Canada decision in Wakeling v. United States of America, Moldaver J. wrote that:

38 ...my conclusion that s. 8 protects targets at both the interception and disclosure stages under Part VI is more a function of the special dangers associated with wiretaps. Parliament has recognized that wiretaps pose heightened privacy concerns beyond those inherent in other searches and seizures. Justice Karakatsanis describes (at para. 116) the serious privacy implications of electronic surveillance, citing this Court's caution that "one can scarcely imagine a state activity more dangerous to individual privacy" (Duarte, at p. 43). Given these implications, the protections that Parliament has seen fit to fold into the wiretap regime include s. 193 which provides that, other than for one of the delineated purposes, the disclosure of wiretap information is not only unauthorized, it is criminal.

39 The highly intrusive nature of electronic surveillance and the statutory limits on the disclosure of its fruits suggest a heightened reasonable expectation of privacy in the wiretap context. Once a lawful interception has taken place and the intercepted communications are in the possession of law enforcement, that expectation is diminished but not extinguished. This heightened and continuing expectation of privacy in the wiretap context is further indication that s. 8 ought to apply to disclosures under Part VI.

40 In sum, while I acknowledge the Chief Justice's concern that s. 193(2)(e) does not engage s. 8 simply by virtue of its integral place in the search regime of Part VI, that is not the sole reason - or indeed the main one - why I conclude that s. 8 is engaged in this context. As I have emphasized, Parliament has recognized that wiretap interceptions are an exceptional and invasive form of search, and it is therefore perfectly appropriate, in my view, that s. 8 protections should extend to wiretap disclosures by law enforcement. Furthermore, there is a residual and continuing expectation of privacy in wiretap information that persists even after it has been lawfully collected. Indeed, the Chief Justice agrees that "residual privacy interests" remain at the time of disclosure and that s. 8 protects against unreasonable uses of the information by law enforcement (para. 95). I am therefore satisfied that s. 8 is properly engaged.

The Analytical Framework Under Section 8 of the Charter

[41] In order for a search to be reasonable under s. 8 of the Charter, "[it] must be authorized by law, the law itself must be reasonable, and the search must be carried out in a reasonable manner" (R. v. Caslake, [1998] 1 S.C.R. 51, at para. 10; see also R. v. Collins, [1987] 1 S.C.R. 265, at p. 278). I reiterate that a disclosure is not, standing alone, a "search" within the meaning of the Charter. However, for the reasons outlined above, s. 8 is engaged. Therefore, in my view, the s. 8 framework applies, mutatis mutandis, to disclosures made by law enforcement pursuant to s. 193(2)(e) of the Criminal Code.

[32] In the same case, McLachlin C.J wrote that:

91 Section 8 protects the individual's privacy interest against unreasonable state intrusion. Here, Mr. Wakeling has a reasonable expectation of privacy in his communications with others. In order to obtain private information by intercepting communications, the state must obtain a judicial warrant, which requires the state to demonstrate that there are reasonable grounds to believe the interception will show evidence of a crime. (Circumstances where the state can intercept without a warrant are not relevant here, e.g., s. 184.4 of the Criminal Code.) Where such grounds exist, the individual's privacy interest in the intercepted communication gives way to the state's interest in law enforcement.

92 The warrant allows the police to obtain the information and to use it for purposes of law enforcement. The individual whose communications are lawfully intercepted under a valid warrant cannot complain that this unreasonably breaches his privacy. To put it metaphorically, a valid warrant sanitizes the state intrusion on privacy, as long as the execution of the warrant is reasonable and the information is used for purposes of law enforcement.

[33] Dissenting reasons authored by Karakatsanis J. deal with other issues.

[34] So, the first two issues to be determined by me are whether the various disclosures:

(1) fall under an exemption enumerated in either section 193(2)(a) or (b), and

(2) were carried out in a reasonable manner.

[35] Counsel agreed that as the disclosure of the material was without prior judicial authorization, the burden of persuasion is on the Crown to show that on a balance of probabilities the disclosure was reasonable.

[36] I am satisfied that the disclosure, by York Regional Police to Mr. Bendick was covered by the exemption set out in section 193(2)(b) in that it was clearly in the course of or for the purpose of a criminal investigation. The information was disclosed to him for the specific purpose of enabling him to locate documents which the police hoped to use as evidence against Ms. Petrolo. I note here that the other requirement under section 193(2)(b) is not in dispute. It is conceded that the private communications were lawfully intercepted.

[37] One issue that arises here is that, while the police released the information to Mr. Bendick for one purpose, they had to be aware that he (and Ms. Hulton) intended to also use it in reviewing Ms. Petrolo's employment status.

[38] I am satisfied that this fact would not negate the valid purpose of releasing the information to him for the purpose of the criminal investigation.

[39] I am also satisfied that Mr. Bendick was not acting as an agent of the police when he actually chose to use the information in the course of his review of Ms. Petrolo's employment.

[40] The knowledge by police that Ms. Hulton and Mr. Bendick intended to rely on the information for a second purpose does however go to the reasonableness of the police action. I will address this at greater length later in these reasons.

[41] Crown counsel argued that I should not be concerned about this knowledge in any event because Mr. Bendick's use of the information in reviewing that employment fell squarely within the exemption set out in section 193(2)(a), in that it was "in the course of or for the purpose of giving evidence in any civil or criminal proceedings or in any other proceedings in which the person may be required to give evidence on oath".

[42] When I expressed concern about the fact that there was no "proceeding" in existence at the time, Crown counsel provided me with a number of cases suggesting that "proceedings" should be given a broad interpretation. I found most of these cases to be of no assistance to me because there were proceedings in existence at the relevant times in those cases.

[43] That is also the situation in the Supreme Court of Canada decision in Imperial Oil v. Jacques but I find the following comments by the court to be applicable here:

48 Section 193(2)(a) provides that a disclosure is not an offence under s. 193(1) if it is made "in the course of or for the purpose of giving evidence in any civil or criminal proceedings or in any other proceedings in which the person [who makes the disclosure] may be required to give evidence on oath". "Civil proceedings", whether in a traditional form or not, always include an exploratory stage. The word "purpose" means "something to be attained; a thing intended" (The Canadian Oxford Dictionary (2nd ed. 2004), at p. 1256), or "[a]n objective, goal, or end" (Black's Law Dictionary (9th ed. 2009), at p. 1356). The word "fin" used in the French version is to the same effect. In this context, if Parliament had intended that the exemption would apply only at the time evidence is given, as the appellants argue, then it would not have included the words "or for the purpose". Since it did include those words, we must assume that they are not redundant, must avoid depriving them of meaningful effect, or "effectivity", and must recognize that they reflect an intention to give the exemption a generous scope that encompasses the exploratory stage of civil proceedings (on the rule of effectivity, see P.-A. Côté, in collaboration with S. Beaulac and M. Devinat, The Interpretation of Legislation in Canada (4th ed. 2011), at p. 295; Subilomar Properties (Dundas) Ltd. v. Cloverdale Shopping Centre Ltd., [1973] S.C.R. 596, at p. 603; Air Canada v. Ontario (Liquor Control Board), [1997] 2 S.C.R. 581, at para. 53).

49 In the alternative, the appellants argue that the words "for the purpose of giving evidence" refer only to incidental disclosure, that is, disclosure that takes place during the proceedings in order, for example, to have a witness identify recorded voices. This interpretation overlooks the fact that the incidental disclosure referred to by the appellants is, as we will see below, already covered by s. 193(3). Construing s. 193(2)(a) in this manner would therefore deprive s. 193(3) of meaningful effect, contrary to principles of interpretation that have long been recognized by this Court (see Côté, at p. 295).

50 This analysis of the language of s. 193(2)(a) Cr. C. satisfies us that wiretap information may be disclosed at the exploratory stage of any civil proceeding. As we have seen, the purpose of this stage is essentially to prepare for the hearing of the case. The documents requested at this stage may very well be requested for the purpose of testifying at the hearing. In the instant case, for example, it is easy to imagine counsel for the respondents wanting to examine a representative of the state, a third party in possession of recordings of intercepted communications, in order to meet the conditions for admission of such physical evidence.

[44] This would appear to bring the use of the information as part of the employment review within the exemption set out in section 193(2)(a). The review was being done in order to decide whether Ms. Petrolo's employment should be terminated. That termination could (and did) lead to a grievance procedure. This all qualifies as a "proceeding" and the initial review qualifies as an "exploratory stage" of that proceeding.

[45] If this interpretation is wrong, I find that, at the very least, it is still a factor to be considered in my assessment of whether the initial disclosure by the police was reasonable. Again, I will say more about this shortly.

[46] I am satisfied that the subsequent disclosures of the information to the union and to LSO, and its subsequent publication in the newspaper were not done by the police or by anyone acting as an agent for the police. I am also satisfied that these were not events that they must have foreseen.

[47] In any event, I am satisfied that the disclosure of the SES to the union was clearly done in the course of a civil proceeding, to wit the grievance procedure. This disclosure clearly fell within the exemption in section 193(2)(a).

[48] I am also satisfied that the initial disclosure of the SES to the LSO and Mr. Bendick's statement to them were clearly done in the course of the exploratory stage of a civil proceeding, to wit discipline proceedings, and also fell within that same exemption.

[49] The preparation of his affidavit and the giving of evidence at the LSO hearing clearly occurred "in the course of or for the purpose of giving evidence" in a civil proceeding and again fell within the same exemption.

[50] Finally, the disclosure to, and the use by the newspaper clearly fell within the exemption set out in section 193(3).

[51] The fact that I have found that the various disclosures of the SES fell within enumerated exemptions set out in section 193 does not end the matter.

[52] I must still determine whether the actions of the police in this process were reasonable. In assessing this I have taken the following factors into account.

[53] The first factor is that the police did not need to include any reference to intercepted communications in the information given to Mr. Bendick.

[54] I recognize that necessity is not a requirement set out in the statute. It is not even listed in section 193 as a factor to be considered.

[55] In his submissions before me, counsel for Ms. Petrolo candidly conceded that he would have preferred that McLachlin C.J. had added the words "and is necessary for" to her reasons set out in paragraph 192 of Wakeling v. United States of America, supra, but she did not.

[56] On the other hand, I am confident that had it been necessary for the police to include this material, Crown counsel would certainly be arguing that this fact would be important in determining reasonableness.

[57] I also note that sometimes reasonableness requires more than minimal compliance with the rules.

[58] Finally, I note that it would have been easy for the police to have prepared a summary of necessary facts that did not include any reference to the intercepted conversations.

[59] The second factor considered by me is that the police did nothing to ensure that Ms. Hulton and Mr. Bendick were aware of the provisions of section 193. They had no basis for their assumption that these lawyers would be aware of the relevant law simply by virtue of being lawyers. I suspect that many criminal lawyers would not have been aware of this section and Ms. Hulton and Mr. Bendick were not criminal lawyers.

[60] I give credit to Mr. Bendick that, at some point, he became concerned about the propriety of having the SES and he sought and obtained legal advice from someone else before proceeding further. The police however could not have known that he would do this and they certainly could not rely on him doing so.

[61] Again, I note that it would have been a simple matter to refer to the section or even to include a copy of it along with the SES.

[62] Finally, the police did nothing to restrict the manner in which Mr. Bendick could use the information. Again, it would have been a simple matter for them to specify what Mr. Bendick could do with it and what he could not.

[63] Against this, I balance the fact that the Supreme Court of Canada appears to have ruled that the release of the information for the purpose of reviewing Ms. Petrolo's continued employment was valid.

[64] Further, even if I am incorrect in my assessment of this, it would have been reasonable for the police and Mr. Bendick to believe that such use of the SES was valid.

[65] Finally, I note what was actually disclosed to Mr. Bendick.

[66] He never saw a transcript of any intercepted communication. He never heard an actual recording.

[67] He only received the SES.

[68] The SES contains references to five intercepted communications in which Ms. Petrolo was a party. These references are neither very long or very detailed.

[69] The first reference consists of the following:

On June 1, 2018 Richard SENIOR was intercepted on WhatsApp communicating with Caterina PETROLO and Fabian WILLS about "fixing" provincial offences notices for WILLS' father, Carlton WILLS.

PETROLO followed up her communication by adding, "Fabian...pls tell your dad his seatbelt ticket with withdrawn ...total savings of: 4 points and $350...And pls make sure he doesn't attend that June court date.

During the same conversation over WhatsApp SENIOR asked PETROLO if she remembered Miles Drakes from LA Fitness. PETROLO said that she did remember him and SENIOR asked PETROLO for a "15 over if possible?"

[70] The second and third references consist of the following:

On June 25, 2018 PETROLO and SENIOR were intercepted communicating about a ticket that she had arranged for a deal to be given to the defendant. It is unknown who the defendant is in the matter, however, it appears that the defendant is a friend of Roman GRIGORIEV, who SENIOR was in communication with regarding the matter. SENIOR told GRIGORIEV to tell his friend that the ticket had been looked after and all his friend had to do was show up, shut up, and plead guilty to the offence, and not to say anything or shake the prosecutor's hand because the deal would not normally apply.

On June 26, 2018, Caterina PETROLO, and Richard SENIOR discussing PETROLO "fixing" two POTs for Ching Kwong LAW (Steven LAW) from Canada Computer.

During the same exchange PETROLO told SENIOR that she messaged LAW looking for one or two tablets. She said that she has withdrawn a red-light ticket, and a stop sign ticket against LAW and helped him out with a validation tag ticket. PETROLO felt that LAW would give her the tablets because he did not charge her for her $400 laptop. PETROLO discussed her conversation with LAW and he was alleged to have said that PETROLO had helped him out several times.

[71] The fourth reference is as follows:

On the 11th of September, 2018 Caterina PETROLO who was using 647-880-2284 communicated with XXXXXXXXXXXX. They discussed a ticket that his wife received from a XXXXXXX. XXXXX wife was travelling 30 over and the fine was reduced to15 over. PETROLO advised XXXXX to get a court date and to make sure that no one knows it's for him. XXXXX advised that "she kept her maiden name". PETROLO asked who the officer was XXXXX couldn't remember his name but advised he was on 5C and his last name resembled "lgnot". XXXXX stated that someone in his office called the officer and the XXXXXXXXXXX. PETROLO confirmed that this was done by phone and not email because she didn't want it to appear somewhere. PETROLO then advised XXXXX to contact her once he had a trial notice and she would add it to a docket and get rid of it.

[72] The fifth and final reference is as follows:

On October 1, 2018 SENIOR communicated with PETROLO and sent her a photograph of a Provincial Offences Notice #9854034Z for Alessandro DE-MARCI for a red light offence. The notice was issued by Constable Joseph CALIA #2535 on May 26, 2018.

SENIOR told PETROLO that this one was for, "Big Shane from Luxy...one of his guys." PETROLO said that she would see what she could do and further that it was on SENIOR's tab.

[73] Each of these communications qualifies as a private conversation. None of them should be described as a personal conversation. All of them are allegedly conversations conducted in furtherance of a criminal offence.

[74] All of these characterizations can be applied to the six intercepted communications between Constable Senior and third parties.

[75] After considering all the above, I am satisfied that the police acted reasonably and did not infringe Ms. Petrolo's section 8 rights.

[76] Counsel for Ms. Petrolo argued further that the disclosure of and use of her intercepted communications by York Regional Police, York Region, the union, the LSO and the newspaper violated her rights under sections 7 and 11(d) of the Charter.

[77] I will address that issue next.

Were Ms. Petrolo's Rights Under Sections 7 and 11(d) Violated?

[78] Section 7 of the Charter guarantees that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice".

[79] Section 11(d) guarantees that "Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal".

[80] The onus is on Ms. Petrolo to show on a balance of probabilities that her rights, as guaranteed by these two sections, were violated.

[81] Counsel for Ms. Petrolo relied on the alleged violation of her section 8 rights as part of his argument that her rights under sections 7 and 11(d) were also violated. I have determined however that there was no violation of her section 8 rights.

[82] Counsel also relied initially on the argument that the contents of the SES could have tainted any opinion that Mr. Bendick might express as to the propriety of Ms. Petrolo's actions.

[83] This argument was undercut by Crown counsel's statement that they never intended to elicit such opinion evidence from either Mr. Bendick or anyone else.

[84] I should comment however on repeated references by counsel for Ms. Petrolo to the police referring to "ticket fixing". I note that this phrase never appears in the SES. The word "fixing" appears twice, once in the context of "fixing provincial offences notices", and the other time in the context of "fixing two PTOs".

[85] Detective/Sergeant Titleman did use the phrase "ticket fixing" elsewhere and he also said other things to Mr. Bendick that, in conjunction with Mr. Bendick being made aware that the police suspicions about Ms. Petrolo were based in part on intercepted communications, might well have made me concerned about possible tainting had Mr. Bendick been called upon to give opinion evidence. That however is not going to happen.

[86] Counsel for Ms. Petrolo argued that, even in the absence of actual tainting, I should still assess potential tainting as part of my assessment of the wrongfulness of the police actions.

[87] In conducting this assessment, I repeat my earlier observation that the SES only contains two references to "fixing" and that they were in a context that I find to have less impact that an allegation of "ticket fixing".

[88] I repeat that there would be no possibility of tainting unless the Crown was relying on the opinion of Mr. Bendick or someone else. There is no evidence before me that they were ever relying on this. To the contrary, Crown counsel stated to me that they never intended to do so.

[89] There is no evidence before me as to how widely the SES was distributed by the union or the LSO. There is no evidence as to who saw it. There is no evidence that anyone who saw it would have agreed to testify on behalf of Ms. Petrolo but for what they read in the SES.

[90] Further, I have some difficulty in seeing how anyone could have testified either pro or con on this issue. It seems to me that the most that any prospective witness could say would be "I have done this" or "I have never done this" or 'I might do this" or I would never do this".

[91] I am not satisfied that there is a legal basis for finding that Ms. Petrolo's section 7 and/or section 11(d) rights were violated as a result of potential tainting of potential witnesses.

[92] After considering all of the above, I am satisfied that the police did not violate Ms. Petrolo's section 7 or 11(d) rights.

[93] Having found that the police did not violate any of Ms. Petrolo's rights, I will point out that even if I had found otherwise, I would not have granted any of the remedies sought by Ms. Petrolo.

[94] In case I am found to be in error regarding my actual findings, I will set out my reasons for my section 24 analyses. They are as follows.

Remedies

[95] Counsel for Ms. Petrolo argued that I should order that the charges be stayed pursuant to section 24(1) of the Charter.

[96] Alternatively, I should exclude all documents obtained for York Regional Police by Mr. Bendick pursuant to section 24(2) of the Charter.

[97] Further, I should also exclude all communications intercepted by York Regional Police, again pursuant to section 24(2) of the Charter.

[98] Section 24 of the Charter reads as follows:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[99] I will address the issue of a stay of proceedings first.

Stay of Proceedings

[100] A judicial stay of proceedings is an exceptional remedy reserved for the clearest of cases.

[101] These cases generally fall into two categories:

(1) where state conduct compromises the fairness of an accused's trial (the "main" category); and

(2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category).

[102] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome;

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits.

[103] Where the residual category is engaged, a court will generally find it necessary to perform the balancing exercise referred to in the third criterion. The issue is not one of concern about continuing prejudice to the applicant by proceeding with the prosecution. Rather, the concern is for the integrity of the justice system.

[104] With respect to the first requirement, for reasons set out earlier, I am satisfied that there is no prejudice to Ms. Petrolo's right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.

[105] With respect to the second requirement, there would have been alternate remedies capable of addressing any prejudice.

[106] Had I found that any evidence to be given by Mr. Bendick, or anyone else, had been tainted in any way, I would have been able to deal with this either by declining to recognize them as experts thereby precluding them from giving opinion evidence, or by giving much less or even no weight to any opinions expressed by them.

[107] Further, I could have excluded evidence pursuant to section 24(2) had I been satisfied that there was a breach that warranted this. That would have had much the same effect as a stay in this case. If I was not satisfied that there was a breach of that magnitude, I would not have found that this was the clearest of cases warranting the exceptional remedy of a stay.

[108] Finally, I am satisfied that the interest that society has in having a final decision on the merits would outweigh any need to denounce misconduct and preserve the integrity of the justice system.

[109] The alleged offences are serious ones that go to the legitimacy of the Provincial Offences Court process.

[110] Against that, I found nothing that needs to be denounced here. In that regard, see both my earlier comments and those set out below.

[111] In the circumstances of the case before me, I am satisfied that a stay would not have been an appropriate remedy.

Exclusion of Evidence Pursuant to Section 24(2)

[112] With respect to section 24(2), the first question to be answered is whether the evidence was "obtained in a manner" that infringed or denied a Charter right.

[113] The Ontario Court of Appeal has stated that the following considerations should guide a court's approach to the "obtained in a manner" requirement in section 24(2):

(1) The approach should be generous, consistent with the purpose of s. 24(2);

(2) The court should consider the entire "chain of events" between the accused and the police;

(3) The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;

(4) The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.

(5) But the connection cannot be either too tenuous or too remote.

[114] Crown counsel conceded that the documents gathered by Mr. Bendick clearly meet the "obtained in a manner" requirement. I agree completely.

[115] I have reached the opposite conclusion with respect to the intercepted conversations. On the other hand, after taking into account the above directions from the Court of Appeal, I am satisfied that the intercepted communications do not meet the "obtained in a manner" requirement. My reasons for this are as follows.

[116] There was no causal connection between the evidence and the alleged breach. In fact, any causal connection is reversed here. It is alleged that the subsequent disclosure of the existence of the evidence constituted the breach.

[117] There was no temporal connection. Communications were intercepted on June 1, 19, 25, and 26, and July 8 and 16, and September 11 and October 1 and 4, all in 2018. The SES was disclosed on October 10, 2018. Any connection between October 10 and the earlier dates is both too tenuous and too remote.

[118] With respect to the question of whether there is a contextual connection, counsel for Ms. Petrolo argued quite correctly that Section VI of the Code places limits on both the interception and the use of private communications. The limits on both are intertwined and important.

[119] Where counsel and I disagree is in our assessment of the police conduct and any need for me to send a clear message dissociating the court from that police conduct. I am repeating myself when I state that I found nothing that needs to be denounced here.

[120] The second question to be answered in my section 24(2) analysis is whether admission of the evidence in the proceedings would bring the administration of justice into disrepute.

[121] To determine this, R. v. Grant by the Supreme Court of Canada directs me to assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(1) the seriousness of the Charter-infringing state conduct,

(2) the impact of the breach on the Charter-protected interests of the accused, and

(3) society's interest in the adjudication of the case on its merits.

[122] I must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[123] In R. v. Grant, supra, the court discusses the first factor, the seriousness of the Charter-infringing state conduct, as follows:

The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

[124] The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes.

[125] Admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a willful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law.

[126] Good faith on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.

[127] In light of the fact that I found the police behaviour to be both in accordance with statutory requirements and reasonable, this assessment of the first Grant factor on a "what if" basis is a somewhat artificial exercise.

[128] I am in effect saying that it was not a breach, but if it was a breach, it was not a serious one.

[129] I do say that I would not have considered any breach to be a serious one for the following reasons.

[130] Counsel argued that any misuse of intercepts of private communications is serious.

[131] In determining the degree of seriousness however I must look at what was actually disclosed here. I have already reviewed that at some length in paragraphs 66 through 74 and will not repeat those observations.

[132] Other factors considered by me in assessing the seriousness of any Charter breach are as follows.

[133] The police officers were aware of section 193.

[134] They believed that they were acting within the exceptions set out in the section. If they were wrong, they are in good company as Mr. Bendick, Ms. Lai and I have all reached the same conclusion.

[135] Any error should be understandable because the law on this point is not clear. That is evident in the absence in both casebooks presented to me of any cases directly on point.

[136] Against this, I note that caution is advisable in the face of any uncertainty.

[137] The most prudent course of action here would have been to edit out all references to intercepted communications in the information given to Mr. Bendick. The second most prudent choice would be to place restrictions on how he might use the information provided. The third most prudent choice best would be to ensure that he was aware of section 193.

[138] After considering all of the above, I would have been satisfied that any breach that occurred here was not so serious as to militate in favour of exclusion.

[139] With respect to the second factor, the impact of the breach on the Charter-protected interests of the accused calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

[140] In this case, Ms. Petrolo lost both her employment and her ability to pursue other employment as a licenced paralegal.

[141] It is not clear to me however that disclosure of the SES played a significant or any part in this happening. The fact that she was charged would have prompted York Region to review her employment. With respect to the LSO, being charged would have required her to notify the LSO (as she did here) who then would have taken some action. Counsel asks me to conclude that the contents of the SES must have been a significant factor in what actually happened, but I find that there is no clear evidence to that effect.

[142] With respect to any suggestion that her private personal communications had been disclosed, I refer back to my earlier comments on what was in fact disclosed here.

[143] After considering all of this I would have concluded that the second branch of Grant would also weigh in favour of inclusion of the evidence.

[144] As for the third factor, society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.

[145] The reliability of the evidence is an important factor in this line of inquiry.

[146] In this case, the proposed evidence is reliable. It consists of recordings of communications and of court documents.

[147] The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry.

[148] Here Crown counsel has advised me that exclusion of the intercepted communications will bring this prosecution to an end. Exclusion of the records collected by Mr. Bendick might well have the same effect.

[149] I must also consider the seriousness of the offence at issue. This can cut both ways because, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

[150] The alleged offences are serious ones that go to the very legitimacy of the Provincial Offences Court process.

[151] Finally, I have repeatedly stated that I found no reason to dissociate the court from the behaviour of the police here.

[152] I find then that the truth-seeking function would be better served by the admission of the evidence than by its exclusion.

[153] As I stated above, I must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. No overarching rule governs how the balance is to be struck. The balancing is qualitative in nature and therefore not capable of mathematical precision.

[154] The Ontario Court of Appeal has stated that the third ground of inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. However, the third inquiry will seldom, if ever, tip the balance in favour of admissibility if both the first and second inquiries make a strong case for exclusion. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.

[155] After considering all of the above, I would have concluded that the long-term interests of the administration of justice would be better served by the inclusion of the evidence.

[156] Accordingly, the application to exclude that evidence pursuant to section 24 of the Charter would have been dismissed even if I had found that Ms. Petrolo's rights had been breached.

Conclusion

[157] The application is dismissed.

[158] In conclusion, I want to thank all counsel for their hard work and assistance in addressing the issues raised in this application. It was greatly appreciated.

Released: November 26, 2019

Signed: Justice D.A. Harris

Appendix: Substantive Event Summary

PROJECT TADEU

SUBSTANTIVE EVENT SUMMARY

CATERINA PETROLO

EVENT 1 R

Charge(s): Obstruction of Justice, Breach of Trust

Date(s): 01 June 2018 - 4 October 2018

Count:

Accused(s): Richard Senior, Caterina PETROLO

YRP Occurrence(s):

Summary:

On June 1, 2018 Richard SENIOR was intercepted on WhatsApp communicating with Caterina PETROLO and Fabian WILLS about "fixing" provincial offences notices for WILLS' father, Carlton WILLS.

A search of ICON revealed that two notices were withdrawn, namely:

The first case (POT #97920022) was an HTA violation of section 182(2), which was a disobey sign violation, issued by YRP. The case was withdrawn at Richmond Hill courts on June 1, 2018 (the same day as the above noted conversation).

The second case (POT # 4799361 B) was for an HTA violation of section 106(2), which was a seatbelt infraction, issued by OPP. The case was withdrawn at Eglington courts on May 31, 2018 (the day prior to the above noted conversation).

PETROLO followed up her communication by adding, "Fabian...pls tell your dad his seatbelt ticket with withdrawn ...total savings of: 4 points and $350...And pls make sure he doesn't attend that June court date.

During the same conversation over WhatsApp SENIOR asked PETROLO if she remembered Miles Drakes from LA Fitness. PETROLO said that she did remember him and SENIOR asked PETROLO for a "15 over if possible?"

According to YRP records Myles DRAKES was issued a ticket (#9822478ZPH) by Officer Dennis CHEN #2373 on December 3, 2017. The ticket was for going 85km/h in a 60km/h zone and had been reduced already by the issuing officer from a speed of 95km/h. DRAKES matter is back in court on December 14, 2018.

SOURCE: 2018.09.27 - IAR - PETROLO - Carlton WILLS tickets - 923

SOURCE: Carlton WILLS' ICON results

SOURCE: 2018.08.09 - IAR - WILLS Ticket Specialist Group - 1591

SOURCE: WHATSAPP COMMUNICATION BTWN SENIOR, PETROLO AND WILLS

SOURCE: CHEN #2373 DIGITAL EVIDENCE TK 9822478ZPH

On the 19th of June, 2018 Richard SENIOR who was using 416-725-1116 communicated with XXXXXXXXXXXXXXXX using 416-708-1727. XXXXX indicated that one of his "best friends got jammed by, Karen C" in reference to his friend being issued a provincial offences notice for a driving offence related to "right hand turns ...at Donald Cousin". Senior confirmed with XXXXXXXX that his friend was a "sales lady," and then stated XXXXXXX, "let me see what I can do give me a sec."

Senior then called XXXXXXXXXXXXXX who was using 416-725-1116 and asked if she had sent the ticket off (in reference to sending the ticket through transcription) for the "sales lady" and indicated that she had not.

SENIOR told XXXXXXXX that the "sales lady" was a good friend of XXXXXXXXXXX then said that she would "void it". SENIOR said that he appreciated it and that XXXXX would appreciate it too.

SENIOR then reached out to XXXXXXX and told him that he spoke to XXXXXXX and the ticket for his friend has been voided, that XXXXXXX had yet to send the ticket. XXXXX indicated that he appreciated it.

Based on information available ticket 99245452 was issued to Stacey SAXENA (August 31, 1972) of 5 Aylesworth Ave, Courtice, at 10:50 am on June 19, 2018. The ticket was for a red light - fail to stop infraction at the intersection of Donald Cousens Parkway and Box Grove Bypass, Markham. That ticket was later voided by XXXXXX and confirmed by YRP Information Management.

TARGET LINE: 4167251116 VOLTE

SESSIONS: 607, 609, 615-617, 619, 621, 623-625, 629, 634, 635, 637

SOURCE: VOIDED TICKET INFORMATION FOR JUNE 19, 2018 AND QUERY INFORMATION BY CHEN

On June 25, 2018 PETROLO and SENIOR were intercepted communicating about a ticket that she had arranged for a deal to be given to the defendant. It is unknown who the defendant is in the matter, however, it appears that the defendant is a friend of Roman GRIGORIEV, who SENIOR was in communication with regarding the matter. SENIOR told GRIGORIEV to tell his friend that the ticket had been looked after and all his friend had to do was show up, shut up, and plead guilty to the offence, and not to say anything or shake the prosecutor's hand because the deal would not normally apply.

SOURCE: 2018.08.08 - IAR - Background of Roman GRIGORIEV - 1608

TARGET LINE: 4167251116

SESSION: 1622

On June 26, 2018, Caterina PETROLO, and Richard SENIOR discussing PETROLO "fixing" two POTs for Ching Kwong LAW (Steven LAW) from Canada Computer.

During the same exchange PETROLO told SENIOR that she messaged LAW looking for one or two tablets. She said that she has withdrawn a red light ticket, and a stop sign ticket against LAW and helped him out with a validation tag ticket. PETROLO felt that LAW would give her the tablets because he did not charge her for her $400 laptop. PETROLO discussed her conversation with LAW and he was alleged to have said that PETROLO had helped him out several times.

A search of ICON revealed that two POT's were withdrawn, one conviction was registered and one did not make it into court.

The first case (POT # 9825303Z) was an HTA violation of section 7(1)(a), which was a val tag violation, issued by YRP on January 5, 2018. The case was withdrawn at Richmond Hill courts on April 12, 2018 by prosecutor GABRIEL.

On February 16, 2016, LAW received two tickets from a York Regional Police officer. The first one was for a violation contrary to section 78.1(1) of the Highway Traffic Act (9354376Z) and the second was contrary to section 3(1) of the Compulsory Automobile Insurance Act (9354377Z). The first charge was withdrawn and a conviction was registered for the second offence with a fine of $175, by PETROLO at Richmond Hill courts on January 5, 2017.

On March 3rd, 2018, LAW was charged with speeding (9836995Z), contrary to the HTA, however, ICON showed that this charge did not make it into a court. For unknown reasons, there was no "last action" registered.

TARGET LINE: 4167251116

SESSION: 75

TARGET LINE: 4167251116 VOLTE

SESSION: 1943

SOURCE: 2018.09.27 - IAR - PETROLO - LAW tickets - 923

SOURCE: Steven (Ching Kwong) LAW ICON results

SOURCE: 2018.06.28 - IAR - Background of Ching K (Steven) LAW – 1258

On the 16th of July, 2018, Richard SENIOR's cell phone data was extracted by the York Regional Police Technical Data Recovery Unit. During a search of the phone, a photograph of a Trial Notification for Shaun ISRAEL was located. The offence date was February 27, 2018 for the offence of speeding, contrary to section 128 of the Highway Traffic Act and the trial was set for August 21, 2018.

A search of ICON revealed that on June 13, 2018, the charge was marked withdrawn by prosecutor PETROLO.

There was no communication captured relaying any information in relation to this trial notice between SENIOR and PETROLO.

SOURCE: 2018.08.05 - IAR - Cellphone Data Extraction Photos - 1197

SOURCE: Shaun ISRAEL ICON results

On the 8th of July, 2018, Richard SENIOR who was using 416-725-1116 communicated with Roman GRIGORIEV who was using 416-508-3445. GRIGORIEV asked SENIOR to speak to his friend Michael MCKERIGHAN, officer number 1225 because he gave them a ticket for improper licence plate. SENIOR told GRIGORIEV to take the ticket to court.

A search of ICON revealed that on July 8, 2018, GRIGORIEV was charged with an offence under section 13 (2) under the Highway Traffic Act (9862035Z). This charge did not make it into a court and for unknown reasons, there was no "last action" registered.

There was no communication captured relaying any information in relation to this offence between SENIOR and PETROLO.

TARGET LINE: 4167251116

SESSION: 3369

SOURCE: 2018.08.08 - IAR - Background of Roman GRIGORIEV - 1608

SOURCE: Roman GRIGORIEV ICON results

On the 11th of September, 2018 Caterina PETROLO who was using 647-880-2284 communicated with a XXXXXXXXXXX. They discussed a ticket that his wife received from a XXXXX. XXXXX wife was travelling 30 over and the fine was reduced to 15 over. PETROLO advised XXXXXXXXXX to get a court date and to make sure that no one knows it's for him. XXXXXX advised that "she kept her maiden name". PETROLO asked who the officer was couldn't remember his name but advised he was on 5C and his last name resembled "lgnot". XXXXXXXXX stated that someone in his office called the officer and the XXXXXXXXXXXX. PETROLO confirmed that this was done by phone and not email because she didn't want it to appear somewhere. PETROLO then advised XXXXXXXXX to contact her once he had a trial notice and she would add it to a docket and get rid of it.

XXXXXXXX next of kin listed on YRP records is Lisa MEHAK.

VERSADEX occurrence 9872727ZPH has Lisa MEHAK listed as charged on September 11, 2018 for speeding. The issuing officer was listed as XXXXXXXXXX.

TARGET LINE: 6478802284

SESSION: 73

SOURCE: YRP VERSADEX TICKET 9872727ZPH

On October 1, 2018 SENIOR communicated with PETROLO and sent her a photograph of a Provincial Offences Notice #9854034Z for Alessandro DE-MARCI for a red light offence. The notice was issued by Constable Joseph CALIA #2535 on May 26, 2018.

SENIOR told PETROLO that this one was for, "Big Shane from Luxy...one of his guys." PETROLO said that she would see what she could do and further that it was on SENIOR's tab.

SENIOR sent another message to "Big Shane" stating, "yoo quick question, you didn't discuss the ticket with anyone else or ask anyone else for help on it..Any other cops etc?, Alex's ticket?" "Big Shane" responded that he didn't talk to anyone else about the ticket.

SOURCE: WHATSAPP BETWEEN SENIOR AND PETROLO

SOURCE: TICKET #9854034Z EVIDENCE FOR CALIA #2535

On October 4, 2018 after spending the day with PETROLO, SENIOR was intercepted communicating with "Big Shane Gibson" on WhatsApp and told him that he had sorted out the issue for his boy "Alex" and that Alex needed to attend High Tech Court on October 9, 2018 before 3pm and speak directly to Cathy PETROLO. SENIOR further indicated that a Yorkdale Mall gift card would be greatly appreciated for PETROLO.

SOURCE: WHATSAPP BETWEEN BIG SHANE GIBSON AND SENIOR

TARGET LINE: F150 PROBE

SESSION: 605

On October 9, 2018 the charge against Alessandro DE-MARCI was withdrawn by PETROLO, prior to his scheduled court date, in front of Justice of the Peace Romagnoli.

SOURCE: ICON INFORMATION FOR OCTOBER 9, 2018