Her Majesty the Queen v. Frank Dean Rudge

COURT FILE NO.: 3396/08

DATE: 2013-08-02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Frank Dean Rudge

Respondent

COUNSEL:

Robin Flumerfelt, for the Crown

Ronald Brady, for the Respondent

HEARD: January 21-24; January 28 - February 1; February 5 - 7; February 12 and 13, July 18, 19, 2013

THE HONOURABLE MR. JUSTICE P.B. HAMBLY

REASONS FOR JUDGMENT

1. Introduction

[1] Dean Rudge (Rudge) is charged between August 1, 2004 and September 28, 2006 with breach of trust contrary to section 122 of the Criminal Code by providing to the Hells Angels confidential police documents. The case was first heard in 2010 by a Superior Court Judge sitting without a jury who acquitted Rudge on May 13, 2010. The crown appealed. The Court of Appeal allowed the appeal in a judgment dated December, 2011.[^1] The case was tried before me sitting as a Superior Court Judge without a jury. I heard evidence over 14 days between January 21, 2013 and February 13, 2013. The crown called 25 witnesses. The accused testified and called three witnesses. 105 exhibits were entered. I ordered a transcript of the evidence and written submissions. I heard oral submissions on July 18 and 19, 2013. Rudge will be convicted. These are my reasons.

2. Background

[2] The Hells Angels is an Outlaw motorcycle club. It is an international organization. It has chapters in towns and cities throughout Canada and the United States and other countries. It had a chapter in Port Colborne. Its members are heavily involved in the trafficking of drugs. They are capable of great violence, including murder for the purpose of keeping other motorcycle gangs out of areas where the Hells Angels wish to maintain exclusive control of drug trafficking. The Outlaws is another international Outlaw motorcycle gang, which is also a criminal organization with similar objectives and capabilities.

[3] In 2005 and 2006 police forces throughout Ontario joined forces in conducting an investigation into the activities of the Hells Angels. The investigation was called Project Tandem. To obtain evidence against the Hells Angels, the police relied upon confidential informants within the Hells Angels organization. Some of these informants were highly placed within the organization of the Hells Angels, including full patch members. The police obtained authorizations to intercept private communications of members of the Hells Angels and their associates based on information received from confidential informants. They also conducted surveillance of the activities of members of the Hells Angels. This investigation by the police was highly secretive. Only a few trusted officers knew about it. If the identity of the informants within the Hells Angels organization became known, they would be killed.

[4] Ken Wagner was a full patch member of the Hells Angels and the sometime president of the Port Colborne chapter. Sandra Taylor was the manager of the Cedar Bay Inn which was purchased by the Hells Angels on November 1, 2005. She was the common law wife of Ken Taylor. She was also the mother of Miranda Taylor. Miranda was born on July 17, 1990.

[5] On May 30, 2005, Rudge was on routine patrol in a police car in Port Colborne. Outside of the Queens Hotel he noticed a young girl who appeared to be disoriented. He stopped his vehicle and spoke with her. She was Miranda Taylor. He learned that she was 14. She appeared to weigh about 115 lbs. She had previously weighed about 165 lbs. She was wearing oversize clothes. She said that she had taken a hit of Oxycotin. She said that she had no food in her apartment. Rudge placed her in his police car and took her to the office for Port Cares. This is an organization that provides social services in Port Colborne.

[6] While she was in the police car, Miranda contacted her mother, Sandra Taylor, with a cell phone that she had in her possession. When they reached the Port Cares office, Rudge turned Miranda over to Judy Cassan, who was a social worker at the Port Cares office. Sandra Taylor was angry that Rudge had picked up her daughter. She told Rudge that she had the situation under her control. Rudge obtained Sandra Taylor’s telephone number. Sandra Taylor took Miranda away with her.

[7] It is the theory of the crown that this was the beginning of a relationship that developed between Rudge and Sandra Taylor. Rudge supplied the Hells Angels with confidential police Intelligence Bulletins, by providing them to Sandra Taylor, who in turn gave them to Ken Wagner and other persons in the Hells Angels.

3. Confidential Police Intelligence Memos

[8] Jason Bassi (Bassi), Michael Tripp (Tripp) and John Goodman (Goodman) were officers who worked in the Niagara Regional Police Service (NRPS) in the Biker Enforcement Unit (B.E.U.). John Kennedy (Kennedy) and Dan Moody (Moody) were officers who worked in Intelligence Services in the NRPS.

1. Full Patch Members Memo

[9] On April 13, 2006, Bassi created a two-page document which he entitled B.E.U. INFORMATION BULLETIN. Under this heading the document stated the following:

The riding season is closely approaching and members will be seeing these individuals out riding, wearing their colors. The following is for your information. Thanks, D/C Jay Bassi.

[10] Under the heading FULL PATCH MEMBERS, it listed the names and photographs of the following men: Gerald Ward, Ken Wagner, Tim Panetta, John Cane and Don Bachensky. Under the heading PROSPECT, it showed the name and photograph of Richard Beaulieu and under the heading HANGAROUND, it showed the name and photograph of Michael Atamian. At the bottom of the second page it contained the following statement:

It is believed the Niagara Chapter of the Hells Angels is looking to expand by recruiting hangarounds. Any information or observations of persons wearing the single patch on the left-hand side of the vest with the word “Niagara” inside the patch indicates a hangaround. This is an example of a Niagara hangaround patch. It will be the only patch affixed to the vest.

Below this statement is an illustration of the patch. On the same day he sent this document to the members of the NRPS by attaching it to an e-mail.

2. Clute Memo

[11] Moody received information on April 22, 2006, from a confidential informant about John Clute. He placed this information in a document which he entitled Intelligence Bulletin dated April 25, 2006. The document stated that John Clute was believed to be striking for the Niagara chapter of the Hells Angels. He was required to own a Harley Davidson motorcycle. He purchased one that was owned by Nick Nero, who was awaiting disposition in relation to a Brinks robbery. An informant gave this information to the police. The informant was named in the document. His name was redacted in the document that was filed at the trial to protect his identity. He traded in his 1999 Mercedes. He paid for the remainder by a cheque from his construction company. He was using the construction company to launder drug money. The end of the document stated the following:

Officers should be aware that John Clute is now a person of interest in the Outlaw biker organization. Any information on the above individual should be forwarded to the Intelligence Office.

Officer Moody attached the memorandum to an e-mail which he circulated to the members of the NRPS.

3. The Outlaw Memo

[12] On April 25 2006, Bassi created a document entitled B.E.U. INFORMATION BULLETIN. It stated that he had received reliable information recently from uniformed officers that the Outlaw Motorcycle Gang was planning to reopen its St. Catharines chapter. It contained the names, birth dates and photographs of four full patch members of The Outlaws, whom officers had seen in the St. Catharines area. The members shown were Dennis Madge, Robert Rauth, Ryan “Red” Daigneault and Donald “Stinky” Peters. It noted that Daigneault was a member from London, who had multiple charges in the Niagara Region. At the bottom it stated "This information is for NRP personnel only and is not to be disseminated." On the same day he sent this document by attaching it to an e-mail to the members of the NRPS.

4. The Dark SideTattoo Memo

[13] On May 4, 2006, Bassi created a document entitled INTELLIGENCE BULLETIN and Officer Safety Information. It reported that the police had received information that two full patch members of the Niagara chapter of the Hells Angels have opened up a Dark Side Tattoo located at King and Mountain streets in Beamsville. This was in addition to the Dark Sides already located in Hamilton and Welland. It named the men as John Cane and Jason Meyer and showed photographs of them. On the same day he sent this document to the members of the NRPS by attaching it to an e-mail.

[14] On June 6, 2006, Tripp, Bassi and Goodman received information through a confidential informant that the Niagara chapter of the Hells Angels had in their possession the Outlaw Memo and the Dark Side Tattoo Memo. They reported this information to Kennedy, who was an officer in the NRPS. On July 26, 2006, Kennedy learned that the confidential informant which Moody had relied on to create the Clute Memo was confronted by Clute with the memorandum and threatened. Moody was able to get the Clute Memo from Clute on August 3, 2006.

[15] Kennedy was able to determine that a monitor had been placed on the printer for the computers used by officers at the Port Colborne detachment of the NRPS. The purpose for doing so was to identify officers who may have been overusing the color printer. Its existence was not known to the officers in the detachment. With the assistance of Brian Mantler, who was in the computer technical department of the NRPS, he was able to obtain a list of the documents that Rudge had printed from his computer between February 27 and June 11, 2006. It showed that Rudge had printed from his computer on the dates indicated the following documents:

(a) April 16, 2006 – Full Patch Members Memo (2 copies)

(b) May 2, 2006 – Clute Memo

(c) May 2, 2006 – Outlaw Memo

(d) May 4, 2006 – Dark Side Tattoo Memo

5. Sting Document

[16] Senior members of the NRPS were very concerned that Rudge was leaking confidential police documents to the Hells Angels. They created a document dated August 17, 2006 entitled Intelligence Bulletin and HELLS ANGELS NIAGARA CHAPTER UPDATE. It showed the names and photographs of six full patch members and two prospects. The same six full patch members’ names and photographs had already been included in the Full Patch Members Memo and the Dark Side Tatoo Memo. Kennedy described the Sting Memo as containing “stale” and “recycled” information. It stated that at present the Niagara chapter had no hangaround members but may be looking to expand. They sent the document to members of the NRPS as an attachment to an e-mail. On the one sent to Rudge they placed special identifying marks. On August 21, 2006, he was placed under surveillance when the sting document was e-mailed to members of the NRPS. He did not print the document.

6. The OMG Booklet

[17] In late 2004 and early 2005, the Biker Enforcement Unit for Ontario distributed to police forces throughout Ontario a booklet entitled ONTARIO OUTLAW MOTORCYCLE GANGS, which contained extensive information about the structure of Outlaw motorcycle gangs, the terms that they used and their culture. It set out protocols for the police to use in dealing with Outlaw motor cycle gang members.

7. The Cedar Bay Inn Memo

[18] Brian Richardson was a Divisional Commander in the NRPS. He created a memorandum dated November 1, 2005, which he sent to divisional sergeants. It informed them that the Hells Angels have purchased the Cedar Bay Inn in Port Colborne effective that date. This document was read at briefing sessions to the officers at the Port Colbert detachment. It was not disturbed to officers. It was placed in an unmarked binder in the Sergeant's office at the Port Colborne detachment.

8. Street Check Information

[19] John Gayder was a Niagara Parks police officer. On June 28 and 29, 2006, at about midnight, he saw two male persons, one with Outlaw motorcycle colors, accompanied by two females observing Niagara Falls. He located two motorcycles with Outlaw motorcycle stickers parked illegally. Two provincial offence officers attended and issued parking tickets to both motorcycles. He noted that the three persons whom he had previously observed returned to the motorcycles and left the area. He entered in the street check computer program the licence plate numbers of the two motorcycles – namely 4T729 and 766F8. This information can only be accessed by authorized persons including NRPS officers.

9. The Mercuri and Wagner Reports

[20] On the morning of August 29, 2005, four police officers at about 10 a.m. attended at 115 W. Main Street in the City of Welland. They arrested Dominic Mercuri on charges of uttering death threats, possession of a controlled substance, possession for the purpose of trafficking of a controlled substance and breach of probation. As a result of information Mercuri gave them, they attended at 10:30 a.m. at 250 Prince Charles Drive, Unit 24 in Welland, to search for guns. None were found. The police created several occurrence reports as a result of this incident.

[21] On March 19, 2006, Kenneth Wagner, his common law wife, Sandra Taylor, and Kenner Wagner, who is Kenneth Wagner’s son were residing at 2935 Highway 3, Port Colborne. Sandra Taylor called 911 to report an accident. She requested an ambulance. It seems that a tractor driven by Kenner Wagner had struck Kenneth Wagner, resulting in injuries to his face. An ambulance and police responded. Both Kenneth Wagner and Sandra Taylor were uncooperative and hostile with the police. Kenneth Wagner was taken to hospital. The police attended at the hospital and left after a short time. Although Kenneth Wagner appeared to be injured, the injuries did not seem to be serious. The police created an occurrence report as a result of this incident.

[22] When an officer creates an occurrence report in relation to an incident, one copy is filed in the police detachment where the incident occurred. Another copy is filed at police headquarters for the NRPS in St. Catharines. If an officer wished to get a copy of an occurrence report, he could go to headquarters in St. Catharines and request a copy from a clerk. The copy that he obtained would have a stamp on each page. The stamp is headed CONFIDENTIAL. It states under this heading DISSEMINATED BY CENTRAL RECORDS NIAGARA REGIONAL POLICE SERVICE ON CHURCH STREET ST. CATHARINES. Beneath that it shows the badge number of the clerk who provided it and the badge number of the officer who received it. A copy could also be obtained electronically through a computer by a supervisor, who is an officer with the rank of sergeant or greater, who had the password. The printed copy on each page would have a notation DISSEMINATED BY NIAGARA REGIONAL POLICE SERVICE and below that the badge number and the name of the officer who printed it. The report in relation to Dominic Mercuri would have been filed initially in the Welland detachment and the report in relation to Kenneth Wagner would have been filed initially in the Port Colborne detachment. Both reports would then have been filed at the headquarters of the NRPS in St. Catharines.

4. The Searches on September 28, 2006

[23] On September 28, 2006, the police executed search warrants and made arrests in Project Tandem. They searched the Cedar Bay Inn at 291 Vimy Road, Port Colborne; the residence of Sandra Taylor and Kenneth Wagner at 2935 Highway 3, Port Colborne; the Hells Angels clubhouse at 855 Darby Road, Welland and the residence of Gerald Ward, a full patch member of the Hells Angels, at 463 Quaker Road, Welland. They seized $150,000 in cash at the home of Kenneth Wagner and Sandra Taylor and $320,000 in cash at the home of Gerald Ward. In relation to this investigation the police searched and seized at the locations indicated documents as follows:

1. Cedar Bay Inn

[24] Constable C. Gomez located the Cedar Bay Inn Memo and what was described at trial as the Cedar Bay Inn Calendar in bookshelves to the left of the computer in the office of the Cedar Bay Inn. The calendar consisted of 28 pages, 8 ½ by 11 inches, with full pages being assigned to each of the 12 months in 2006. It had Rudge’s police work schedule neatly designated in his handwriting for each month.

2. Wagner Residence

[25] Constable C. Ash located the Outlaw Memo in a truck located in the driveway and the OMG booklet in a basket on the kitchen table inside the residence. On the back of the Outlaw Memo in Sandra Taylor’s handwriting were noted “plate # 76658” and “plate # 4T729”. The name Owen Grant at 97 Bonnechere Street East was associated to the first plate number and Gary Shelbrick at 514 Main Street, Port Colborne was associated to the second plate number. The licence plate number 4T729 is the same as that recorded by Niagara Parks police officer Gayder on June 29, 2006 and entered into the Street Check computer program. The licence plate number 76658 is similar to the second licence plate number recorded by Gayder which is 766F8. He also found approximately $150,000 in cash in one of the bedrooms of the home.

[26] Constable A. Meadick located, in a box of papers, on the kitchen floor in the residence four photocopies of the first page of the Mercuri occurrence report, which was described at the trial as the Mercuri Report and a full copy of the Wagner occurrence report which was described at the trial as the Wagner Report. There were no markings on these documents to indicate that they had originated from police headquarters in St. Catharines, from having been picked up there or through being printed from a police computer.

3. Hells Angels Clubhouse

[27] Constable C. Zafrides located the Full Patch Members Memo on a table under a lighter display.

4. Residence of Gerald Ward

[28] Constable P. Hamilton located a copy of the Outlaw Memo in the garage in drawers to the left of a workbench. The same notation was found on the back of this copy of the Outlaw Memo in the handwriting of Sandra Taylor as was found on the Outlaw Memo located in the truck outside the Wagner residence. In the garage, Constable Hamilton also located phone numbers for Hells Angels members across Canada, maps to different clubhouses across Canada and $325,000 in cash.

5. Rudge’s Fingerprints

[29] Mathew Leandowski is an expert in the identification of fingerprints. He is employed by the OPP. Sergeant McCabe, who was in charge of the investigation of Rudge, supplied him with the fingerprints of the police officers and civilian employees, who worked at the port Colborne detachment in 2006. He compared these fingerprints to the fingerprints that he discovered on the documents seized in the searches of locations associated with the Hells Angels conducted in Project Tandem on September 28, 2006. He identified Rudge’s fingerprints on seized documents as follows: two on the Cedar Bay Inn Calendar found at the Cedar Bay Inn; two on the Outlaw Memo located in Ken Wagner's truck in the driveway of the Wagner residence; one on the OMG booklet located on the kitchen table in the Wagner residence and two on the Full Patch Members Memo located at the Hells Angels clubhouse.

6. Relationship of Rudge with Sandra Taylor and Miranda Taylor

[30] On May 30, 2005, when he was on patrol in Port Colborne, Rudge came into contact with Miranda Taylor. She was emaciated and appeared to be under the influence of drugs. Rudge took her to the Port Cares Community Center in his police car. Miranda had a cell phone. She phoned Sandra Taylor, who is her mother. Sandra Taylor attended at the Port Cares Community Center where she met with Rudge. He obtained her phone number. She took charge of Miranda. She was very angry with Rudge for becoming involved with Miranda. He testified that he called Sandra Taylor the following day on June 1, 2005, to check on Miranda.

[31] On June 24, 2006, Rudge attended at the Cedar Bay Inn with Constable Croft to check if underage persons were drinking there. Rudge separated himself from Constable Croft and spoke alone with Sandra Taylor for 10 to 15 minutes.

[32] Diane Gehl was the wife of David Rowe. He was a friend of Rudge. He had been a police officer with the NRPS and a friend of Rudge. He died of carbon monoxide poisoning on February 9, 2004. Diane Gehl contacted Rudge about two weeks after his death to inquire if he was aware of his death. There was a brief friendship of several months between Rudge and Diane Gehl. It ended over a misunderstanding about the possible purchase by Rudge of Diane Gehl’s house where she had lived with David Gehl. This was probably in the summer of 2005.

[33] Diane Gehl was acquainted with a number of members and associates of the Hells Angels including Gerald “Skinny” Ward, his brother Rick Ward, Tim Muise, Rick Beaulieu and Sandra Taylor. Prior to her husband’s death, when she was drinking in bars, Rudge would contact her to warn her when police officers were pulling over cars to check if drivers had been drinking to protect her from being charged with impaired driving. Diane Gehl had lost contact with her brother, David Gehl. He was homeless, had trouble with drugs and was living in Vancouver. In May 2005, Rudge obtained a photograph of her brother, David Gehl. Using this photograph she was able to contact her brother and bring him home.

[34] Sometime after Kenneth Wagner was arrested on September 28, 2006, possibly in late 2006 or early 2007, Rudge stopped a vehicle driven by Diane Gehl, in which Sandra Taylor was a passenger. Diane Gehl was taking Sandra Taylor to Toronto to visit with Kenneth Wagner who was in jail. She left Diane Gehl’s vehicle and went to Rudge’s cruiser where she spoke with him for about five minutes.

[35] There were telephone calls recorded between Rudge’s telephone number and Sandra Taylor’s telephone number in 2005 on June 1; in 2006 on January 18, February 12, March 8, 24 (2) and 25; April 2(2), 8, 17, 19, 21, 22 and 27; May 8, 12, 16 and 26; June 6 and 10; in 2007 on February 12 (2), 16 and 27; and March 6 (2), 11(2) 12(3) and 29. The telephone call on June 1, 2005 confirmed Rudge’s evidence that he called Sandra Taylor on the day after he took Miranda Taylor to Port Cares which was June 30, 2005. The telephone calls in April 2006 were before and after he printed the Full Patch Memo on April 15, 2006. The telephone calls in May 2006 were after he printed the Clute Memo and the Outlaw Memo on May 2, 2006 and the Dark Side Tatoo Memo on May 4, 2006. The telephone calls in February 2007 were before and after the judicial pretrial on February 14, 2006 of the Hells Angels from Port Colborne arrested in Project Tandem. The telephone calls in March 2007 were before and after a bail review for Kenneth Wagner on March 22 and crown disclosure on March 20 for the Hells Angels in Port Colborne arrested in Project Tandem. Rudge was arrested on April 4, 2007.

[36] Rudge saw Miranda Taylor in the company of Mark Marion in Port Colborne shortly after his encounter with Miranda Taylor and her mother Sandra Taylor on May 30, 2005. He testified that he would see both Miranda and Sandra in the downtown area of Port Colborne. He would speak with them and express his concern for Miranda. It was his experience with Miranda that caused him to take an interest in addiction to Oxycontin. He researched the topic, put out a bulletin based on his research to the NRPS and participated in panel discussions on the topic.

[37] He received complaints from merchants in Port Colborne that Miranda Taylor and Mark Marion were engaging in shoplifting in their stores. Miranda Taylor would distract a salesperson while Mark Marion, wearing bulky clothes, would secret items in his clothing. He assisted the merchants in putting out no trespassing notices of indefinite duration against Mark Marion and Miranda Taylor. On November 16, 2005, he attended at 225 Mitchell Street, Apt. 8 in Port Colborne where Miranda Taylor was living with Mark Marion. He spoke with both of them. He served Mark Marion with 13 and Miranda Taylor with three no trespass notices for stores in Port Colborne. He recorded in the occurrence report that he composed in relation to this incident that Miranda Taylor was born on July 17, 1990 and was hence 15 and Mark Marion who she was living with was born on February 14, 1976 and was hence 29. At this time he obtained the phone number for the apartment where Miranda Taylor was living with Mark Marion.

7. Rapport Between Rudge and the Hells Angels

[38] On December 24, 2005, Rudge attended in his police vehicle at the Cedar Bay Inn. A telephone conversation was recorded by the police in relation to the Project Tandem investigation between Hells Angel members Brian Sauve and Tim Muise. Brian Sauve was staying at the Cedar Bay Inn. Sauve was recorded telling Muise that he almost had a heart attack when he exited his room and saw a police cruiser in the parking lot. His concerns were removed when he discovered that it was Rudge driving the vehicle. The police recorded the conversation as follows:

Sauve: It was Dean

Muise: Oh fuck.

Sauve: He was just paying a visit.

Muise: Oh

Sauve: But fuck it scared the shit right outta me.

Muise: Oh I bet ya it did.

[39] On January 9, 2006 the police intercepted a telephone conversation between Tina Pantlin and Tim Muise. Tina was at a bar. She and Tim were to have met at the bar. They missed each other. They had a conversation about that. They then had the following conversation:

Timothy MUISE: Well I well I’m sorry I’m not in the area now

Tina: All righty then

TIMOTHY MUISE: Well uh wuh tell me what it is

Tina: No it’s about fuckin Gord

Timothy MUISE: Being an idiot

Tina: Oh big time fuckin he’s trying to fuckin set me up for the big ass fuckin fall and there’s a lot a fuckin things that go with it

Timothy MUISE: Like why

Tina: Like he’s fuckin no it’s cuz back in the summer the cops told me that he ah Dean the cop told me that he’s being followed and watched and he Dean told me tell your fucking friend in the black car he’s going too many fuckin places and where he shouldn’t be

Timothy MUISE: Is that right

Tina: (coughs) And so now on this thing he has nothing to do with it but he’s more he says I’m setting ya up Tina cuz you have connections they’ll they’ll protect you I said what are ya trying say trying to threaten me

Timothy MUISE: Trying to set ya up

Tina: Oh yeah

Timothy MUISE: Really

Tina: (stutters) I go I I yeah it’s not it’s not good cuz he’s just fuckin fucked up

Timothy MUISE: Well I’d just stay away from the whole situation for a bit and let me have a chance to talk to him

[40] It would appear that Tina Pantlin is telling Tim Muise, an associate of the Hells Angels, that Rudge had told her that her boyfriend Gord was being followed by the police. Rudge denied this. He agreed that he has spoken to both of them. Tina seems to be afraid of what Gord is doing. Muise assures her that he will speak with him. Tina Pantlin was in her 30’s. She was a street person, a drug user and may have been a prostitute. Gord was a retired Ontario Hydro executive in his mid 50’s. According to Rudge they had a dysfunctional relationship. Each had accused the other of assault. He denied telling Tina that Gord was being followed by the police and that his dealings with her and Gord had anything to do with the Hells Angels.

8. Rudge’s Arrest and Statement

[41] Rudge was arrested on April 4, 2007, while he was on duty. He was interviewed by Sergeant G. McCabe immediately after his arrest. Before McCabe interviewed him, Rudge was advised of his right to counsel. He phoned a lawyer and spoke to him. The interview was recorded. McCabe advised him that he was charged with breach of trust under s. 122 of the Criminal Code by leaking police Intelligence Bulletins to the Hells Angels. Rudge said that he was in shock. He said that he had been advised by his lawyer not to say anything. He said that he was not feeling well and had been thinking the night before of booking off sick. McCabe asked him if he had a personal relationship with any of the Hells Angels. Rudge said that he knew some of them. He said that he dealt with them as a competent police officer. A dialogue then took place as follows:

MCCABE: And have you ah, any time you’re dealing with them, is it all professional, or at… have you had any dealing with them, you know, when you’re out driving around in your own vehicle and have a coffee or…

RUDGE: Jus ah, Miranda TAYLOR. I ah, I helped that kid out. That kid’s turned around.

MCCABE: Now, who’s Miranda TAYLOR? Is that a male or female?

RUDGE: Miranda?

MCCABE: Yeah.

RUDGE: That’s a female. I first um, met her I guess it was a couple years ago. And I took her to Port Cares to get food. She was ah, not in the best of shape, and it turns out that she’s Sandy TAYLOR’S daughter. But any dealings that I’ve had have been with respect to Miranda. And Miranda has been… ah, I talked to the vice-principal just a few months ago. It’s amazing, the turnaround…

MCCABE: Okay.

RUDGE: …of that child. You can to go ah. Lakeshore Catholic and check it out. That kid was a waste.

[42] McCabe told him that his fingerprints were located all over police property seized in search warrants from the Hells Angels. Rudge denied giving any information to the Hells Angels or anyone associated with them. McCabe asked him if he had printed Intelligence Bulletins. Rudge denied that he had. A dialogue took place as follows:

MCCABE: Have you... do you remember printing off any Intelligence bulletins any ... at any time that you're aware of?

RUDGE: You know what? When I come into work, I get all kinds of spam, as you do.

MCCABE: Yes.

RUDGE: Most of the stuff, I delete. I don't even read it.

MCCABE: Okay.

RUDGE: You know? I don't have time to read all that stuff. No offence to anybody in the Intelligence Unit, but most of it is just ... unless it's something of a personal nature to me, meaning a request for a statement or something, a lot of it I don't even open up. It's gone.

MCCABE: Okay.

RUDGE: And you know, you can see in my history there all my ah, my mails that I've got. It's delete, delete, delete, delete, delete.

MCCABE: Okay.

RUDGE: So unless ...

MCCABE: Do you... do you ever recall printing off any Intelligence bulletins? Would you have the ... you know, would you be doing that?

RUDGE: You know what? Over the years, I've provided a lot of information to the Intelligence Unit. I've faxed them copies of reports where there'd be ... that worries me, because some of my reports have been altered in the past, dealing with members of organized crime. This is ah, prior to any troubles that I had with ah, Nancy, but ...

MCCABE: You don't remember printing off any ... any bulletins or that in the last ...

RUDGE: You know what? Again, on the advice of my counsel. ..

9. The Case For The Crown

[43] Rudge’s relationship with Sandra Taylor grew from his first meeting with her on May 30, 2005 in relation to Miranda Taylor. Rudge printed four Intelligence Bulletins on the Hells Angels in April and May 2006. Three of these bulletins – the Clute Memo, the Full Patch Members Memo and the Outlaw Memo were found in the possession of the Hells Angels in August and September 2006. On two of these memos were found the fingerprints of Rudge – the Full Patch Members Memo and the Outlaw Memo. Another confidential police document, the OMG Bulletin, was also found in September 2006 in the possession of the Hells Angels with Rudge’s fingerprints on it. The telephone records of Rudge and Sandra Taylor show clusters of telephone calls between them close to the time when Rudge was printing the Intelligence Bulletins and on significant dates in the prosecution of the Hells Angels. The hand writing of Sandra Taylor on the back of the Outlaw Memo contained information that only a police officer could obtain from the street check computer program. The information that the police received in early June 2006 that Intelligence Bulletins on the Hells Angels, which Rudge printed, were in their possession was confirmed by their discovery on the searches on September 28, 2006. Rudge provided them as well the OMG bulletin, the Cedar Bay Inn Memo, his calendar with his police work schedule on it, the Mercuri Report and the Wagner Report to the Hells Angels by giving them to Sandra Taylor.

10. The Case For the Defence

[44] Rudge placed the Intelligence Bulletins that he printed in his mail slot in the police station. The police station was insecure. After hours the police station could be entered through a back door by means of a three digit code. The code had not been changed for over 20 years. Hundreds of people would have knowledge of the code. Someone may have broken into the police station late at night when it was empty, stolen the bulletins and given them to the Hells Angels. Also, another officer with a grievance against him, could have removed the bulletins from his mail slot and given them to the Hells Angels. The phone calls to Sandra Taylor can be explained by his concern for the welfare of Miranda Taylor. He was phoning Sandra Taylor to inquire about Miranda Taylor. In his evidence he stated the following:

Q. Let’s talk about Miranda Taylor. Your excuse for all the phone contact between you and Sandra Taylor was that you were on a mission of mercy for her daughter Miranda Taylor, correct?

A. I object to the way that you are framing the question. It’s not my excuse and it’s not a mission of mercy as you put it. The reason for the phone calls between myself and Sandy Taylor was to deal with issues surrounding Miranda. That’s accurate and to the point, yes.

[45] He made a similar statement to McCabe at the time of his arrest. Confidential informants providing information about him to the police can be explained by their wanting to exact revenge against him because of his relationship with Miranda Taylor. Rudge is a good police officer and he is a good man. Notwithstanding the circumstantial evidence against him he did not provide confidential police documents to the Hells Angles.

11. Analysis

1. The Burden of Proof

[46] Section 122 of the Criminal Code states the following:

122. Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.

[47] If Rudge did provide to the Hells Angels the Intelligence Bulletins, the Cedar Bay Inn memo, the street check information, the OMB bulletin, the Mercuri and Wagner reports and the Cedar Bay Inn Calendar, which were found in possession of members of the Hells Angels in the searches on September 28, 2006, he is guilty of the offence as charged. The evidence against Rudge is circumstantial. The issue is whether the crown has proved the charge based on this evidence beyond a reasonable doubt.

[48] Reasonable doubt as a trial judge should instruct a jury or himself when sitting without a jury was defined by the Supreme Court of Canada in the judgment of Justice Cory in R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 at para. 39. In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 at para. 242, the Supreme Court of Canada in the judgment of Justice Iaccobucci added that an effective way to define reasonable doubt for a jury is to explain that it falls much closer to absolute certainty than it does to proof on a balance of probabilities. In R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, the Supreme Court of Canada stated in the judgment of Justice Cory where an accused testifies the following:

28 Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[49] Regarding the test to be applied in determining whether the crown has proved its case beyond a reasonable doubt based on circumstantial evidence in R. v. Fleet, 1997 CanLII 867 (ON CA), [1997] O.J. No. 4553 the Court of Appeal stated the following:

20 … Thus, the trial judge, reviewing the evidence and setting out the position of the defence and relating the substantial parts of the evidence to that position, may frame the requisite instruction in the manner he or she considers most appropriate in the circumstances, for example, by:

(a) charging the jury in accordance with the traditional language of proof beyond a reasonable doubt (per Laskin C.J.C. in Cooper);

(b) charging the jury in accordance with that language and pointing out to the jury the other inferences that the defence say's should be drawn from the evidence and the necessity to acquit the accused if any of those inferences raises a reasonable doubt (as the trial judge did in Cooper in the final portion of his recharge); or

(c) charging the jury that it must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts (per Ritchie J. in Cooper and Dubin J.A. in Elmosri).

[50] In R. v. Uhrig, 2012 ONCA 470, [2012] O.J. No. 3011 the Court of Appeal emphasized that it is important that a trial judge analyze the cumulative effect of circumstantial evidence. The court stated the following:

13 When arguments are advanced, as here, that individual items of circumstantial evidence are explicable on bases other than guilt, it is essential to keep in mind that it is, after all, the cumulative effect of all the evidence that must satisfy the standard of proof required of the Crown. Individual items of evidence are links in the chain of ultimate proof: R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 361. Individual items of evidence are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone. It may be and very often is the case that items of evidence adduced by the Crown, examined separately, have not a very strong probative value. But all the evidence has to be considered, each item in relation to the others and to the evidence as a whole, and it is all of them taken together that may constitute a proper basis for a conviction: Cote v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76.

2. Connection between Rudge and the Intelligence Reports on the Hells Angels Found in the Searches on September 28, 2006

[51] A confidential informant reported to Tripp, Bassi and Goodman on June 6, 2006 that the Hells Angels had in their possession the Dark SideTattoo Memo and the Outlaw Memo. Rudge printed the Outlaw Memo on May 2, 2006. He printed the Dark SideTattoo Memo on May 4, 2006. On July 26, 2006, Kennedy learned through the confidential informant who had provided Moody with the information that he had placed in the Clute memo that Clute was in possession of the memo. On August 3, 2006, Moody was able to retrieve the memo from Clute. Rudge printed the Clute memo on May 2, 2006.

[52] By the end of July, 2006, the police had information from confidential informants that three confidential police memorandums on the Hells Angels printed by Rudge on May 2 and May 4, 2006 – the Clute memo, the Outlaw Memo and the Dark SideTattoo Memo - were in the possession of the Hells Angels. It is not the contents of the information but the fact that the statements were made on which the crown relies. I agree with Mr. Flumerfelt that these statements can be used for this purpose based on the principle set out by the Supreme Court of Canada in the judgment of Justice Sopinka in R. v. Evans, [1993] 3 S.C.R. 353 as follows:

16 An out-of-court statement which is admitted for the truth of its contents is hearsay. An out-of-court statement offered simply as proof that the statement was made is not hearsay, and is admissible as long as it has some probative value. See R. v. O'Brien, 1977 CanLII 168 (SCC), [1978] 1 S.C.R. 591, at p. 593.

[53] Clute surrendered the Clute Memo to Moody on August 3, 2006. It was printed by Rudge on May 2, 2006. On September 28, 2006, Constable Ash located and seized the Outlaw Memo in a truck outside of the Wagner residence. Constable Hamilton located and seized another copy of the Outlaw Memo at the residence of Gerald Wagner. It was printed by Rudge on May 2, 2006. The Full Patch Members Memo was printed by Rudge on April 16, 2006. It was located by Constable Zafrides at the Hells Angels clubhouse on September 28, 2006. Mathew Leandewski located two of the fingerprints of Rudge on each of the Outlaw Memo and the Full Patch Memo. The location by the police of the Outlaw Memo and the Full Patch Members Memo on September 28, 2006 with two of Rudge’s fingerprints on each document and the Clute Memo on August 3, 2006 in the possession of the Hells Angels is evidence that the reports that the police were receiving through confidential informants in June and July 2006 that these documents were in the possession of the Hells Angels were true. An inference may be drawn from this evidence that these three documents were leaked by Rudge between April and July, 2006 to the Hells Angels.

3. Rudge, Sandra Taylor and Miranda Taylor

[54] Rudge testified that his relationship with Sandra Taylor was rooted in his concern about Miranda Taylor. Apart from the initial contact between Rudge and Miranda Taylor, when he took Miranda Taylor to the Port Cares community center, there is little evidence of further contact between Rudge and Miranda Taylor. It was this initial contact that resulted in Rudge acquiring Sandra Taylor’s phone number. Rudge obtained the phone number of the apartment that Miranda shared with Mark Marion on November 15, 2005, when he served them with no trespass notices. However, there are no recorded calls between Rudge and Miranda Taylor.

[55] Judy Cassan, who received Miranda Taylor when Rudge brought her there on May 30, 2005, could not recall ever having seen Miranda Taylor with Rudge again. Donald Charles Edwards, who was the pharmacist and owner of Boggio and Edwards Pharmacy in Port Colborne recalled Miranda Taylor shoplifting at his pharmacy and being addicted to oxycontin. He assisted her in getting her into the methadone program. He could not recall if Rudge was one of the officers who attended when she was caught shoplifting. He could not recall ever having seen Miranda Taylor and Rudge together.

[56] Miranda Taylor was 14 when Rudge met her on May 30, 2005. When he met her she had no food in her apartment, was emaciated and was addicted to oxycontin. He was aware, at least on November 15, 2005, that she was living with a criminal and participating in criminal acts of shoplifting with him. In the occurrence reports, which he filed with the no trespass notices, he noted both Mark Marion’s birth date of February 14, 1976 which meant that he was 29 and Miranda Taylor’s birthdate of July 17, 1990 which meant that she was 15. Her mother was the common law wife of the sometime president of the chapter of the Hells Angels in Port Colborne. He became aware that one of her mother’s former boyfriends had sexually assaulted Miranda. Notwithstanding all this, as Mr. Flumerfelt frequently pointed out to him in cross examination, he never reported or referred her to the Children’s Aid as he was obliged by law to do.[^2] Rudge had no explanation as to why he did not do so. All of this is completely inconsistent with Rudge having an interest in the welfare of Miranda Taylor.

[57] The telephone calls between Rudge and Sandra Taylor were clustered around Rudge’s printing of the Full Patch Memo on April 16, 2006, the Clute memo and the Outlaw Memo on May 2, 2006 and the Dark Side Tatoo Memo on May 4, 2006, the judicial pretrial of Kenneth Wagner on February 14, 2007 and crown disclosure being made on March 22, 2007 to the Hells Angels in Port Colborne, who were arrested on September 28, 2006. There are no phone calls between Rudge and Sandra Taylor from June 2, 2005 until January 17, 2006. There are also no calls between them from June 11, 2006 and February 11, 2007.

[58] There is evidence of a relationship between Sandra Taylor and Rudge, which is active at the time of Rudge’s printing of the four confidential Hells Angels memos in April and May, 2006. Three of these memos are found in the possession of the Hells Angels – the Clute memo on August 3, 2006 and the Outlaw Memo and the Full Patch Memo, which the police discovered in the Project Tandem searches in September 28, 2006. The Outlaw Memo and the Full Patch Memo have Rudges’s fingerprints on them. The Outlaw Memo has information on the back that could only have come from a NRPS officer. The OMG bulletin, which many police officers in the NRPS had access to, is found in the possession of the Hells Angels in the searches on September 28, 2006, with Rudge’s fingerprints on it. A calendar showing Rudge’s police working schedule, in his handwriting with his fingerprints on it, is found in the Cedar Bay Inn in the possession of the Hells Angels in the searches on September 28, 2006. Sandra Taylor was the manager of the Cedar Bay Inn and the common law wife of Kenneth Taylor, a full patch member and sometime president of the Port Colborne chapter of the Hells Angels. All of this is circumstantial evidence from which an inference can be drawn that Rudge was supplying confidential police documents to the Hells Angels through Sandra Taylor.

4. Post Offence Consciousness of Guilt from Rudge’s Statement to McCabe

[59] Rudge told McCabe in his statement on April 4, 2007, after he was arrested, that he did not print Intelligence Bulletins. Mr. Flumerfelt submits that this was a fabrication. I agree. Rudge also told McCabe that any contact between him and Sandra Taylor related to his concern for Miranda Taylor. This also in my view was a fabrication.

[60] In R. v. O’Connor, 2002 CanLII 3540 (ON CA), [2002] O.J. No. 4410, the accused was charged with first degree murder. He gave several statements to the police in the course of their investigation in which he denied committing the murder. He presented an alibi. The murder took place in Fort Erie. He said that he was in Buffalo at the time when the murder took place. He gave details in his statements of what he was doing before he crossed the border. These were shown to be false. There was no record at the border of his having crossed the border at the time when he said that he did. The Court of Appeal in the judgment of Justice O’Connor stated the following:

17 It is well settled that there is a distinction between an alibi that is disbelieved and, therefore, rejected and an alibi that is found to be concocted or deliberately fabricated. The former has no evidentiary value; the latter can constitute evidence from which an inference of guilt may be drawn (citations ommitted)

18 … I see no reason to distinguish the approach taken to disbelieved statements that constitute alibis and those that are otherwise exculpatory. In my view, the requirement for evidence of fabrication before any adverse inference may arise applies equally to both kinds of statements. In analyzing the evidentiary value of a disbelieved statement that is not an alibi, however, the court will need to have regard to the content of what it is that is disbelieved and the connection of the disbelieved statement to the offence charged.

20 In Coutts, supra, Doherty J.A. explained the rationale underlying the rule as follows at pp. 551-52:

If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused's version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown's obligation to prove an accused's guilt beyond a reasonable doubt. By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused's version of events. [references omitted]

24 On the other hand, I am satisfied that it is open to a trier of fact to consider evidence of the circumstances in which an accused made an out-of-court statement which is disbelieved as independent evidence to show that the accused fabricated the statement.

26 In addition, the circumstances in which an accused, or a person who eventually becomes an accused, makes an out-of-court statement which is found to be untrue may have an evidentiary value that is not present in the circumstance where an accused testifies and is disbelieved. False exculpatory statements made by a person upon being informed that a crime has been committed will in some circumstances be consistent with that person being conscious of having committed the crime and may point to guilt in the same way that other after-the-fact conduct such as flight, a threat to a witness, or concealment of evidence can be probative of guilt. The circumstances in which a false statement is made may show an intent to mislead the police or others or an intent to deflect suspicion and may be evidence of a conscious mind that he or she has committed an offence. When a court is addressing the admissibility of evidence contradicting an accused's out-of-court statement, it will be required to determine if there is independent evidence of fabrication, but in doing so, the court may consider the circumstances in which the allegedly false statement was made. If those circumstances tend to support a conclusion that the accused made a false statement because he or she was conscious of having committed the offence, then those circumstances may be used as independent evidence of fabrication.

[61] The accused was convicted at trial. The Court of Appeal ordered a new trial because the trial judge had not properly instructed the jury on the use that it could make of a disbelieved exculpatory statement of an accused. (see also the judgment of the Court of Appeal in the decision of Justice Watt in R v. Cyr, 2012 ONCA 919, [2012] O.J. No. 6148 at para. 79) In R. v. Selvanayagam, [2011] O.J. No. 4138, the accused was charged with first degree murder. He was a former tenant of the victim. The murder took place on the second floor of the home where the accused had formerly lived. He had phoned the victim on the day before the murder. In statements to the police, admitted at the trial, he denied ever having been on the second floor of the victim’s home and having made the phone call. Both were lies. He testified at trial that he did not regard the question as to his having ever been on the second floor as related to the murder. His explanation for denying the phone call was that he realized that the police were trying to implicate him in the murder. The accused was convicted. The Court of Appeal, in the judgment of Justice Feldman, held that the accused’s explanation of having lied to the police given at trial would permit the jury to use his denials as consciousness of guilt.

[62] Rudge’s explanation to McCabe for contacting Sandra Taylor that he was doing so out of concern for Miranda Taylor and his denial to McCabe of printing Intelligence Bulletins were fabrications or concoctions. I find, based on the principles set out in the judgments of the Court of Appeal in O’Connor and Selvanayagam, that this demonstrates a consciousness of guilt on the part of Rudge.

5. Rebuttal of Innocent Association with Sandra Taylor

[63] There is evidence that Rudge warned Diane Gehl prior to her husband’s death on February 9, 2004 of where the police were pulling over cars to check drivers who may have been drinking; that Rudge at the request of Diane Gehl obtained in May, 2005 a photograph of her brother David Gehl from police records; that Rudge told Tina Pantling that the police were following her boyfriend Gord intercepted in a telephone conversation on January 9, 2006 between Tina Pantlin and Tim Muise, an associate of the Hells Angels and that Brian Sauve, an associate of the Hells Angels who was living at the Cedar Bay Inn, felt relieved when he discovered that a police car which he saw in the parking lot of the Cedar Bay Inn was driven by Rudge in a conversation intercepted between him and Brian Sauve recorded on June 24, 2006.

[64] In R. v. B. (F.F.), 1993 CanLII 167 (SCC), 1993 1 S.C.R. 697, the accused was charged with sexual offences against his niece over 10 years when she was a child. She had 12 siblings. The accused had lived during this period of time with her family. Evidence was admitted at trial that the accused had assaulted the complainant’s siblings. The Supreme Court of Canada, in the judgment of Justice Iacobucci, held that the evidence was properly admitted to rebut the defence of innocent association. He stated the following:

75 … Counsel for the appellant claimed that the appellant was simply a benevolent baby-sitter who looked after the children as a favour to his sister, raising the defence of innocent association. In his closing remarks, counsel for the appellant emphasized that the appellant "did nothing more than assist them [the L.s] in their times of need, when money was tight".

76 … The evidence was not tendered solely to show that the appellant was the sort of person likely to commit the offences charged but to rebut the defence of innocent association, to demonstrate the system of violent control that F.F.B. exercised over the family which would explain why the abuse was allowed to occur and why the complainant was too frightened to press charges until much later, and to counter the suggestion that Mrs. L. was responsible for the complainant's physical injuries.

[65] In R. v. Kinkead, 2003 CanLII 52177 (ON CA), [2003] O.J. No. 3480, the accused was charged with first degree murder of two sisters named Ottey. The crown alleged that he assisted his friend, Ranger, in committing the murder. Ranger was convicted of first degree murder in an earlier trial. The accused had testified in that trial. He admitted that he was at the house with Ranger before the murder took place. His position was that he had left the house before the murder took place. The victims were stabbed to death. Evidence was admitted that before the murders took place that the accused was in possession of a knife similar to the knife that could have been used in the murders and that he had threatened to stab a woman with the knife. The Court of Appeal, in the judgment of Justice Simmons, held that the evidence was properly admitted. Evidence in the trial “… made it likely that Kinkead would assert either that he was not at the Ottey home at the time of the killings, or, if he was at the Ottey home, that he was there for an innocent purpose. …” (para. 79) Justice Simmons held that the evidence was admissible to rebut this suggestion.

[66] A police officer informing a person of the location of police checking for drivers for having consumed alcohol, providing a photograph from police records of a missing brother and informing a person that her boyfriend is being followed by the police pales in comparison to leaking confidential police documents to the Hells Angels by providing the documents to the wife of an important member. The intercepted telephone conversation of Brian Sauve, of being relieved at discovering the identity of the driver of a police vehicle who had pulled into the parking lot of the Cedar Bay Inn, which was owned by the Hells Angels and where Sandy Taylor was the manager, is of a different nature. Mr. Flumerfelt submitted that the evidence summarized is admissible to rebut the defence raised by Rudge of innocent association with Sandra Taylor. I agree that I can use this evidence as some evidence, not conclusive evidence, that Rudge’s association with Sandra Taylor was not innocent. I cannot use it for the purpose of inferring that Rudge had a propensity generally to leak confidential documents to criminals. I also cannot use it for the purpose of inferring that Rudge is a bad man and hence more likely of having committed the offence of which he is charged.

[67] Rudge did not call Sandra Taylor or Miranda Taylor to give evidence nor did he offer any explanation of why he did not call them. In R. v. Marshall, 2005 CanLII 30051 (ON CA), [2005] O.J. No. 3549, the accused failed to call two critical witnesses who could have corroborated his evidence. The Court of Appeal, in the judgment of Justice Borins, stated … the appellant's unexplained failure to call them certainly permits if not compels the inference that their evidence would not have supported his testimony. (para. 44) I make this inference in this case.

6. Rudge Deposited the Intelligence Bulletins and His Calendar in his Mailbox

[68] Contrary to the statement that he gave to McCabe, Rudge conceded in his evidence that he did print Intelligence Bulletins. He could hardly do otherwise since his doing so was recorded by a monitor on the printer for his computer. He also conceded that two Intelligence Bulletins which he printed found their way into the possession of the Hells Angels with his fingerprints on them. Again he could not do otherwise since the police discovered them there on September 28, 2006, when they did the Project Tandem searches. Matthew Leandowski identified his fingerprints. Rudge’s explanation was that when he printed the Intelligence Bulletins he put them in his mailbox in the police station where they would be accessible for writing reports and for reference in his police work. Someone must have stolen them and delivered them to the Hells Angels. He did not produce a single report in which he had used one of the Intelligence Bulletins between April 2005, when he first printed one and April 4, 2007, when he was arrested. None were located in his mailbox when he was arrested. Likewise he did not refer to a single time when he used Intelligence Bulletins in his police work. Moreover, they were on his computer and readily accessible there.

[69] The evidence is that the Intelligence Bulletins were in the possession of the Hells Angels at the latest by the end of June 2006. Two of them were definitely in the possession of the Hells Angels on September 28, 2006. He was not arrested until April 4, 2007. He states that he never noticed that these highly confidential documents were missing from his mailbox. He says that he put his calendar, with his work schedule on it, to have it readily available to him. The work schedule is for the entire year, which is suggestive of his completing it in late 2005. He never noticed that it was missing.

[70] Rudge stated that one of the reasons that he printed the intelligence bulletins and kept them in his mailbox was to have them available to refer other officers to them at briefings at the commencement of his shift. Tom MacLean was the platoon sergeant on Rudge’s shift at the Port Colborne detachment from 2005. He denied that Rudge ever did this. He said that he regarded intelligence bulletins to be “read only” documents. Kelly Devries, Thomas Adams and Chris Chirico were officers on Rudge’s shift. They also denied that Rudge did this. All of this is strong evidence that Rudge’s explanation of storing the Intelligence Bulletins which he printed and his calendar in his mail slot from where they were stolen is false.

7. Break and Enter and Theft and Third Party Suspect Theories

[71] There were of course many items in the Port Colborne police station that would have been of interest to a thief, including police computers, crown files, exhibits in investigations etc. There were no reported break-ins to the Port Colborne police station in the relevant time. No one was aware except Rudge that he was printing the Intelligence Bulletins and putting them in his mailbox, if he was.

[72] There is nothing to link Rudge directly to the Cedar Bay Inn Report, the Mercuri Report and the Wagner Report. The discovery of these documents with the Hells Angels is immune from the theory that they were obtained by a break in at the Port Colborne police station. The Mercuri report was stored at the Welland Police station in its original form without markings. The four copies of this document found in the possession of the Hells Angels were without official markings. It would have to originate from the Welland police station rather than one of the ways that an occurrence report could be obtained either directly from the St. Catharines police station or by a police computer, which would have resulted in official markings on these documents. Rudge did have access to the Welland Police station. Likewise, the Wagner report was stored at the Port Colborne Police station in its original form without markings. It would have had to originate from the Port Colborne police station. The Cedar Bay Inn Report was stored in the Sergeant’s office in the Port Colborne police station in an unmarked binder. If these documents had been stolen in a break in at the Port Colborne station, unless a thief had information of precisely where these documents were located, there would of necessity been evidence of a thief conducting a search which there was not. There is no air of reality to theory that the documents in question may have been stolen from the Port Colborne police station and turned over to the Hells Angels.

[73] Rudge stated that the break enter and theft theory to explain the confidential police documents being in the possession of the Hells Angels on September 28, 2006 was his lawyer’s idea. He did not support it. (transcript p. 955-6). His position was that another officer supplied the documents to the Hells Angels. He named the officer. He told McCabe of his belief. There was no indication on the monitor to the printer for the police computer that this man had printed the documents. McCabe supplied his fingerprints to Matthew Leandowski. They were not found on the documents. Rudge did not present any evidence that this man or anyone else provided the documents to the Hells Angels. Before evidence that would otherwise be inadmissible can be introduced by an accused to establish that someone else committed the offence with which he is charged, he must establish a sufficient nexus between the third party suspect and the offence. The Supreme Court of Canada in R. v. Grandinetti, 1 S.C.R. 27, in the judgment of Justice Abella, expressed the concept as follows:

47 The requirement that there be a sufficient connection between the third party and the crime is essential. Without this link, the third party evidence is neither relevant nor probative. The evidence may be inferential, but the inferences must be reasonable, based on the evidence, and not amount to speculation.

48 The defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence… If there is an insufficient connection, the defence of third party involvement will lack the requisite air of reality… (citations omitted)

[74] Rudge did not request a voir dire for leave to introduce evidence of a third party suspect nor did he present any such evidence.

8. Non Disclosure of the Sting Document and the January 1, 2006 Occurrence Reports and Their Significance

[75] Mr. Brady submits that the crown did not make disclosure in accordance with its obligations in R. v. Stinchcombe, 1991, s S.C.R. 326. Within days prior to the commencement of the first trial pursuant to a letter dated February 2, 2010, which Mr. Brady sent to Mr. Flumerfelt, the crown produced the Sting Document. Sergeant G. McCabe was in charge of the investigation. The crown had previously provided Rudge with a five page single spaced statement of McCabe. At the bottom of the first page and the top of the second page, over 23 lines, the sting operation is described. It refers to a “softened intelligence bulletin” put out on a police computer which Rudge would be able to review and to print if he chose to do so.

[76] On the weekend of Friday, February 1, 2013, during this trial, after evidence had been heard over nine days, Rudge made Mr. Brady aware that he had in his possession occurrence reports dated January 4, 2006 of his reporting criminal activity in Port Colborne to the intelligence department of the NRPS. In the normal course, Rudge would provide these reports to Sergeant MacLean, who was in charge of the Port Colborne detachment. He would sign them and provide them to the intelligence department. The occurrence reports were in Rudge’s duty bag when he was arrested on April 4, 2007. He did not explain how it was that he still happened to have a copy. In a telephone call to Mr. Flumerfelt over the weekend Mr. Brady requested that the crown produce them. This the crown did on Monday, February 4.

[77] McCabe, in his investigation of Rudge, interviewed McLean on June 1, 2007. At the end of the interview McCabe asked McLean the following question:

Okay is there anything else. Uh do you have any other information about Constable Rudge that we should know about at this time?

MacLean answered no.

[78] Mr. Brady suggested to MacLean, in cross examination of him on Tuesday, February 4, 2013, that he should have answered that question by referring to the January 4, 2006 occurrence reports that Rudge composed. MacLean’s answer was “…my interpretation of that question to (of) Staff Sergeant McCabe was he was asking me if I had any other knowledge of Constable Rudge’s criminal activity.” (p. 835 ll. 30-33)

[79] The occurrence reports referred to three matters. The first was related to Morgan Wright and Shane Thompson. Both were known to be involved in criminal activity in Port Colborne. There was an incident in 2002 when Wright attempted to murder Thompson by shooting at him with a shotgun. He pleaded guilty to aggravated assault and was sentenced to jail. In 2005, Thompson was sentenced to jail for a number of criminal offences. Both were out of jail. Rudge reported information that Wright was still a threat to kill Thompson. There was an occurrence report attached to the January 4, 2006 occurrence report dated February 19, 2006, that Rudge composed, in which he stated that he had received information that Wright was no longer a threat to Thompson. The third matter referred to Todd McGuire. The information was that McGuire was living with Randy Turner. The background was that McGuire had sexual relations with Cassey Cichocki and her mother, Sharon Evans and that he had previously lived with Craig Goss, who was charged with sexual assault on Tina Karr. Cassey Cichocki disappeared. She may have been working as a prostitute in Niagara Falls. Rudge, on his own time, assisted the family in searching for Cassey Cichocki among the criminal element in Niagara Falls.

[80] The second matter did have a connection to the Hells Angels. It was reported that Diane Gehl was trafficking drugs for Brian Sauve and Tim Muise. Gehl had been married to a police officer, David Rowe, who died from carbon monoxide poisoning. She had received some money from a life insurance policy as a result of his death. Rudge reported that she was believed to have given $200,000 from this money to Barry Ward, who was known to be a member of the Hells Angels. Mr. Brady submitted that the occurrence reports should have been provided to the defence as part of its disclosure obligations without his having to ask for them. He requested no remedy as a result of this allegation.

[81] This material, which Mr. Brady suggests the crown improperly withheld, was disclosed to the defence in time for it to make full use of it - the sting document prior to the commencement of the first trial and the January 4, 2006 occurrence reports during the course of this trial. In my view there was no impairment of the accused’s right to make full answer and defence by reason of the late disclosure of these documents. Moreover, there is no evidence of the crown improperly withholding these documents. The defence cannot sit idly by when the crown does not produce documents that may be useful to it. A similar argument was made in R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244. The accused was charged with aggravated assault. The crown did not produce occurrence reports related to the investigation of the incident by the police. The Supreme Court of Canada, in the judgment of Justice Cory, held that the nondisclosure did not affect the right of the accused to make full answer and defence. He stated the following:

37 In considering the overall fairness of the trial process, defence counsel's diligence in pursuing disclosure from the Crown must be taken into account. A lack of due diligence is a significant factor in determining whether the Crown's non-disclosure affected the fairness of the trial process. In Stinchcombe, supra, at p. 341, defence counsel's duty to be duly diligent was described in this way:

Counsel for the accused must bring to the attention of the trial judge at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. Observance of this rule will enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial. See Caccamo v. The Queen, 1975 CanLII 11 (SCC), [1976] 1 S.C.R. 786. Failure to do so by counsel for the defence will be an important factor in determining on appeal whether a new trial should be ordered.

The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure.

[82] Further, the occurrence reports in my view are of marginal relevance to the central issue in the case which is whether Rudge leaked confidential police documents to the Hell Angels. They show Rudge doing his job as a front line police officer in Port Colborne in January 2006. This is not inconsistent with his having leaked confidential police documents to the Hell Angels later in the same year.

[83] Rudge did not print the Sting document. He was given an opportunity to do so on August 21, 2006. Moody recovered the Clute memo from Clute on August 3, 2006. Sandra Taylor would likely know this. If Rudge was in touch with her, she would have told Rudge this. He would know that there was a leak from the Hells Angels to the police by then. This would make him wary of leaking further police Intelligence Bulletins to the Hells Angels. No police officer printed the Sting document. It was not found in the possession of the Hells Angels in the searches on September 28. The Inteligence bulletins that Rudge printed were found in their possession. If another police officer had printed the Sting document and it was found in the possession of the Hells Angels, Rudge would have an argument that the other officer was the source of the leaks. This was not the case.

9. Rudge was Set Up by the Hells Angels

[84] Constable D. Marr gave evidence of information that he had received from a confidential informant on September 13, 2006. This information was the following:

1. That he had observed Rudge at the residence of Bruno Favero.

2. That he had observed Rudge at the residence of Murray “Skip” McGreggor and Joanne Martin.

3. That Rudge had given information to him, Bruno Favero, Skip McGreggor and Joanne Martin about police activities.

4. That he had observed Rick Ward and Scott McGreggor with a typed police document that McGreggor said in Ward’s presence that he had received from Rudge who was a friend.

[85] McGreggor, Martin, Favero and Ward were all known by the police to be involved in criminal activity in Port Colborne and to be associated in various degrees to the Hells Angels. This evidence was introduced, on agreement of counsel, not for its truth but to rebut the allegation by the defence apparent from some of the questions asked by Mr. Brady in cross examination of an inadequate police investigation on the authority of the decision of the Court of Appeal in R. v. Dhillon, 2002 CanLII 41540 (ON CA), [2002] O.J. No. 2775 at para. 46.

[86] Mr. Brady advanced the argument that McGreggor, Martin and Ward knew that the person to whom they gave this information was a confidential informant of the police. He was the same confidential informant who had told Moody that the Clute memo was in Clute’s possession. They gave this information to him in the expectation that he would pass it on to his police handlers. The information was false. They did this in the expectation that Rudge would be prosecuted. Their motive was to get revenge against Rudge for his involvement with Miranda Taylor. There was no evidence to support this theory. One of the initial difficulties with it is that Rick Ward died suddenly on April 9, 2005. Rudge did not meet Miranda Taylor until May 30, 2005. I can do no better in expressing the absurdity of this theory than to quote and adopt the following paragraph in Mr. Flumerfelt’s written reply submissions:

1. According to the defence theory, Rick Ward, Murray MacGregor and Joanne Martin staged this conversation with the informant to frame Rudge as revenge for his “dealings with Miranda.” This theory is without merit for the following reasons:

a. Rick Ward died two months before Rudge met Miranda Taylor.

b. This theory would also require that Ward and the Hells Angels knew about Project Tandem and deliberately planted Rudge’s documents in places where the police would search. This would mean that they subjected themselves to arrest and lengthy penitentiary sentences, along with the seizure of hundreds of thousands of dollars of their money, and the dissolution of their chapter – all to get back at Dean Rudge for talking to Miranda Taylor.

c. Finally, Mr. Brady appears to rely on the fact that the confidential informant in the Clute memo and the confidential informant relied on by Marr are the same person. This is not the case, nor is there any evidence in this case that would suggest so.

10. Evidence of Good Character and Work Performance

[87] Rudge was born on August 17, 1963. He is 50. He has been a police officer with the NRPS since September 16, 1985 when he was 22. In 1987 or 1988 he was convicted under the Police Act of having supplied a criminal record to his then girlfriend’s sister of her boyfriend. He received a penalty of the loss of 80 hours. He has been charged under the Police Act of supplying a photograph of Diane Gehl’s brother to Diane Gehl to assist her in finding him. This is a pending Police Act prosecution awaiting the outcome of this case. In October 2002, he was charged with assaulting his girlfriend. She was also a police officer. He pleaded guilty to assault causing bodily harm on March 26, 2003. He received a suspended sentence and two years probation. As a result of this matter he was suspended from the police force from October 2003 until November 2004. On March 30, 2011, he entered into a common law peace bond in relation to an incident involving a woman.

Evidence of McCabe and MacLean

[88] Sergeant Tom MacLean was his platoon sergeant from early 2005 until January 2007, at the Port Colborne police station. He composed performance appraisals of Rudge for the periods August 17, 2004 to August 17, 2005 and September 16, 2005 to September 16, 2006. Rudge’s police work in each appraisal is assessed under 10 categories. Each report contains comments from the Divisional Commander. Each report is very positive. Rudge scores high in each category. MacLean was not so generous to Rudge in his evidence. He said in a recorded statement to McCabe that he was a loner who did not like to associate with other officers. He said in re-examination by Mr. Flumerfelt that he had “zero credibility” with other officers who did not trust him. Rudge did some work in construction outside his police work. He said that he had heard that Rudge would “rip people off” and that he did not pay his workers. McCabe said in re-examination by Mr. Flumerfelt that his reputation for integrity and honesty in the police service was “untrustworthy”.

Significance of the Evidence

[89] Mr. Flumerfelt submitted that the character evidence about Rudge and the evidence of his competence as a police officer, for and against him, was a “wash”. He submitted that the case should be decided against Rudge solely on the circumstantial evidence. I do not entirely agree with this. I do agree that the circumstantial evidence is dominant in considering his guilt or innocence on the charge. However, I am of the view that the thrust of the evidence on Rudge’s competence as a police officer is positive. McCabe and MacLean could hardly be expected to support him. They were not asked the extent to which their comments about Rudge were influenced by the charge outstanding against him. I rather expect that without the shadow of the outstanding charge they would be more positive. Rudge does seem to have had some difficulty in his relationships with women. However, this can have no bearing on the assessment of whether he is guilty of the outstanding charge.

12. Conclusion

[90] The evidence of Rudge printing the Intelligence Bulletins, the same documents being found in the possession of the Hells Angels, his fingerprints being found on the documents, the phone calls to Sandra Taylor clustered around the time when he printed the documents and significant dates in the prosecution of the Hells Angels, his fabrications of his relationship with Miranda Taylor and the printing of the Intelligence Bulletins in his statement to McCabe and the lack of any air of reality to the Break , Enter and Theft theory, the third party suspect theory and the set up theory viewed cumulatively are overwhelming. I think that Rudge was a competent police officer, who did much good work. However, this is not inconsistent with his guilt. Whatever strength it does have does not rebut the overwhelming strength of the cumulative circumstantial evidence. The only reasonable inference from all of the evidence looked at cumulatively as required by Uhrig is that Rudge supplied the Intelligence Bulletins and the other confidential police documents found in the possession of the Hells Angels by the police at the time of the searches on September 28, 2006 to Sandra Taylor as a conduit to the Hells Angels. Applying the analysis in WD I am not left with a reasonable doubt. I do not believe Rudge’s evidence, it does not leave me with a reasonable doubt and I am not left with a reasonable doubt on the basis of all the evidence. My belief that he did so is much closer to absolute certainty than it is to a belief on a balance of probabilities. I find that Rudge leaked to the Hells Angels, through Sandra Taylor, all of the confidential police documents, which the police found in the possession of the Hells Angels on September 28. 2006. The accused will be convicted.

P.B. Hambly J.

Released: August 2, 2013

COURT FILE NO.: 3396/08

DATE: 2013-08-02

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Frank Dean Rudge

REASONS FOR JUDGMENT

P.B. Hambly J.

Released: August 2, 2013

[^1]: 2011 ONCA 791, [2011] O.J. No. 5709

[^2]: Child and Family Services Act, s. 72.