Court File and Parties
COURT FILE NO.: CR-13-90000727 DATE: 20160901
ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
[ Note: This proceeding is governed by publication restrictions under s. 648 of the Criminal Code. ]
B E T W E E N:
KEVIN WALLACE, ZULFIQUAR BHUIYAN and RAMESH SHAH Applicant
S. K. Fenton & L. E. Morgan, for the applicant, Kevin Wallace M. Savard, for Zulfiquar Bhuiyan D. Cousins, Ramesh Shah
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA Respondent
R. Roy, T. Gilliam, & J. Conroy, for the respondent
HEARD: August 30, 2016
Nordheimer J.:
[1] The applicant, and his two co-accused, are charged with a single offence under the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34. Mr. Wallace brings this application for leave to cross-examine the affiant of an Information to Obtain, that was used to obtain an authorization to intercept private communications, as part of his challenge to that authorization under the principles set out in R. Garofoli, [1990] 2 S.C.R. 1421 and cases subsequent thereto. The communications intercepted pursuant to that authorization, and two renewals, form an important part of the Crown’s case against the applicants. The other two accused, who also challenge the authorizations, are content to rely on any cross-examination undertaken by counsel for Mr. Wallace, if leave to cross-examine is granted.
[2] I will say at the outset that I will necessarily be somewhat circumspect in my reasons here so as to avoid treading on issues that are to be dealt with in the future Garofoli application.
Background
[3] Some brief background will be sufficient to provide a context for the application. There were originally five accused persons. Pursuant to an earlier decision, I stayed the charge against one of the accused persons. Another accused person has had the charges against him dropped. Of the remaining three accused persons, two were employees of SNC Lavalin, which is the company that is alleged to have been at the centre of the scheme to pay bribes. Ramesh Shah was Vice-President of the International Division of SNC Lavalin. Mr. Shah reported to the applicant, Kevin Wallace, who was Vice-President, Energy and Infrastructure, and was the senior SNC Lavalin executive assigned to the project in Bangladesh to which the bribery scheme related. Zulfiquar Ali Bhuiyan is a Bangladeshi and Canadian Citizen. It is alleged that Mr. Bhuiyan was the representative of Abul Chowdhury, a senior Bangladeshi official, who was said to also be involved in this scheme.
[4] The background to this matter dates back to 2010 when the World Bank received information suggesting that there might be corruption involving foreign public officials and company representatives in respect of a bid by SNC Lavalin Inc. for a construction supervision contract related to the planned construction of the Padma Bridge in Bangladesh. The World Bank was a primary lender in relation to the Padma Bridge project.
[5] The Word Bank has a unit that is charged with the investigation of allegations of fraud, corruption, collusion and other improper activities in relation to World Bank financed projects. It is called the Vice Presidency for Integrity (“the INT”). In March, 2011, an officer with the RCMP was approached by an INT investigator concerning allegations that had come to the INT’s attention regarding possible corruption involving SNC Lavalin and the Padma Bridge project.
[6] The RCMP investigation commenced in April 2011. The RCMP applied for and was granted a Part VI authorization to intercept private communications on May 24, 2011. That authorization was renewed on June 24, 2011 and again on August 8, 2011. Search warrants were subsequently obtained in September 2011.
[7] In February 2012, charges were laid only against Mr. Shah and the other accused person, who has since been dropped from the prosecution. In April 2013, a preliminary hearing was held for those two accused. At the end of the preliminary hearing, Mr. Shah and the other accused person were committed for trial on an uncontested basis. An indictment was presented in May 2013. On September 17, 2013, the Crown presented a direct indictment that added Mr. Wallace and Mr. Bhuiyan.
Leave to cross-examine
[8] The investigation into the bribery scheme started as a result of information provided by four tipsters to the INT. It is the information from these tipsters that forms the critical part of the ITO that led to the granting of the original authorization. It is the applicant’s main position that material information, relating to these tipsters, either was not put, or was not fairly put, before the authorizing judge in the ITO and that, had it been, the authorization would not have been granted. There is a secondary issue as to whether the ITO satisfied the investigative necessity requirement.
[9] The applicant sought to cross-examine the affiant on certain specified areas, two of which were withdrawn by the applicant at the outset of the hearing. The remaining areas are:
(i) the affiant’s failure to independently investigate or corroborate the information provided by the tipsters; (ii) misrepresentations and omissions of the affiant respecting the allegations made by tipsters #1 and #4; (iii) the asserted involvment of the applicant in a meeting with a Bangladeshi official in Dubai; (iv) whether the investigative necessity requirement was satisfied.
[10] The requirement for obtaining leave to cross-examine, and the test to be met, are set out in R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343. In that decision, Charron J., at para. 10, quoted with approval the following statement by Sopinka J. in Garofoli:
A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds.
When permitted, the cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted.
[11] The court in Pires went on to point out that the basis upon which leave to cross-examine should be granted is a a narrow one. As Charron J. said, at para. 40:
Hence, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focussed on the question to be determined on a Garofoli review – whether there is a basis upon which the authorizing judge could grant the order. If the proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted.
[12] One unusual aspect of this particular case is that the affiant has previously been cross-examined. As part of a disclosure motion that I heard a number of months ago, the affiant was cross-examined at some length. The respondent says, and I agree, that certain of the topics, that the applicant is now seeking to cross-examine the affiant on, were covered in the course of that cross-examination. It is not disputed that the applicant can rely on the contents of that cross-examination on his Garofoli application. The question then is whether there are any areas that remain untouched by that cross-examination and that meet the test for leave to cross-examine.
[13] I earlier noted that the information provided by the four tipsters is central to the grounds upon which the authorization was granted. Where informants are involved, the reliability of the information that they provide to the police is critical to the foundation for the authorization. For information provided by informants to be found to be reliable, three concerns must be addressed. [1] Those concerns are:
(a) was the source credible? (b) was the information regarding the offence compelling? (c) did the police do any investigation to corroborate the information?
[14] In my view, between the prior cross-examination and the disclosure that has been made, the applicant has sufficient information to mount his argument regarding whether the information provided by the tipsters was independently investigated and corroborated. Indeed, the contents of the applicant’s factum on this motion demonstrate that fact. I do not see how any further cross-examination of the affiant will assist on that issue.
[15] I reach a different conclusion regarding the alleged misrepresentations and omissions regarding tipsters #1 and #4. In that regard, some of the conclusions reached and opinions offered by the affiant, regarding the information provided by those tipsters, are open to debate. I believe that the applicant should be entitled to test some of those opinions and conclusions because, if the information provided by the tipsters could reasonably lead to different opinions and conclusions, and those competing opinions and conclusions were not outlined by the affiant, then the issue as to whether the affiant made full and frank disclosure may arise. [2] I note on that point that the decision in Pires makes it clear that an applicant does not have to show that his/her cross-examination will be successful. Rather:
A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown. [3]
[16] I reach the same conclusion regarding the paragraphs in the ITO that strongly suggested that the applicant was the senior SNC Lavalin official who attended the meeting in Dubai. It is not entirely clear whether this assertion was made by tipster #2, or by a source relied upon by tipster #2. In either event, between the ITO for the first authorization and the ITO for the second authorization, the police received information from the Canada Border Security Agency that suggests that the applicant had not travelled to Dubai at the relevant time but, rather, had only travelled to New York City. Whether that is the case, and the reason, if it is, that that information was not provided by way of clarification in the second ITO are issues that are fairly canvassed in a cross-examination. This issue goes again, at least, to the full and frank disclosure obligation.
[17] The final issue then is the investigative necessity requirement. The affiant sets out, in a number of paragraphs in the ITO, why he believes that the investigative necessity requirement is met. He explains why other investigative techniques such a search warrants, production orders, surveillance, undercover operatives and the like would not, in his view, materially assist the investigation.
[18] I do not see how cross-examination of the affiant would materially assist in evaluating the affiant’s position on the issue of investigative necessity. The applicant has available to him the necessary information to put forward counterarguments to the rationale relied upon by the affiant for the investigative necessity requirement. I would not, therefore, allow cross-examination on this point.
Summary
[19] In summary, I conclude that leave to cross-examine should be granted but limited to the following two areas:
(i) misrepresentations and omissions of the affiant respecting the allegations made by tipsters #1 and #4; (ii) the asserted involvment of the applicant in a meeting with a Bangladeshi official in Dubai.
I should add that, in so limiting the cross-examination, I recognize that, depending on the answers given, questions might fairly and reasonably arise that might stray into other areas. I leave the determination of the extent that the cross-examination might necessarily have to be allowed, beyond the limits that I have set out, to be dealt with at the time of the cross-examination.
NORDHEIMER J. Released: September 1, 2016
Footnotes
[1] See R. v. Debot, [1989] 2 S.C.R. 1140 at para. 53