Court File and Parties

COURT FILE NO.: 918-17 DATE: 20180711 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Christopher Casola Accused/Moving Party – and – Canada Revenue Agency Respondent

Counsel: Marc Huneault and Julie Lefebvre, for the Crown Michael K. Quigley, Counsel for the Accused/Moving Party Ronald MacPhee and Christopher Kitchen, counsel for the Canada Revenue Agency

HEARD: June 11 and 12, 2018

Decision on Application

CornelL J.:

Introduction

[1] This is an application by the defendant to require the Canada Revenue Agency (“CRA”) to produce computer records and other information in connection with various charges that the accused faces. These charges include a breach of trust by accessing taxpayer information other than for the public good, fraudulently accessing a CRA computer, as well as two counts that allege that the breach of trust and unauthorized use of a computer were done for the benefit of The Bacchus Motorcycle Club, a criminal organization. In addition, Mr. Casola faces eight counts involving various weapon offences including possession of an SKS Assault Rifle.

[2] At the conclusion of the application, I endorsed the file to indicate that the application was dismissed with reasons to follow. I now take this opportunity to deliver those reasons.

The Issue

[3] The issue to be determined is whether the accused should be granted access to various forms of CRA records, including the CRA mainframe computer that contains the records of all individuals who have filed a tax return, the CRA MARS (Matching Action Review System) database accessible on the CRA servers between March 26th, 2014, and January 7th, 2015, a data dump of the entire “Notepad” option in the MARS database, as well as what is referred to as the “entire CRA workload audit trail” in connection with the review of the accused’s work that was undertaken by the CRA after security concerns became known. A complete list of the access to third party records sought by the applicant is attached to this decision and marked as “Appendix A”.

Admissions

[4] Although it was originally argued that there were four reasons why such production should be granted, it was eventually acknowledged that the request for third party disclosure was being made for the sole reason of permitting the accused to make full answer and defence.

[5] After some discussion, it was eventually acknowledged by the applicant that the records in question are properly characterized as third party records as they are not in the possession or under the control of the prosecuting Crown.

[6] At the time that the security concerns became known to the CRA, an internal investigation was undertaken. During the course of that investigation, the accused provided two statements. In those statements, the accused acknowledged that he had engaged in unauthorized access to CRA computer records. Counsel for the applicant conceded that as the statements in question were not being used to determine guilt or innocence, it was permissible for me to consider the content of such statements at this stage of the proceedings.

Background

[7] The accused had been employed with the CRA since June of 2000. After a four-year “care and nurturing leave”, he returned to CRA employment in January of 2014. In July of that year, the accused was transferred to the “matching area”. His main duty was to look for discrepancies between tax slips that had been issued and tax slips that had not been reported. To do this, he primarily used the MARS computer program.

[8] During the period of his CRA leave, the accused was a member of two non-criminal motorcycle clubs, namely the Comrades and the Coalition Crew. These clubs were taken over by the Red Devils motorcycle club and then by the Bacchus motorcycle club, both of which are branded in the “1% category”. In the 1980s, the 1% term came to refer to members of criminal gangs including the Hell’s Angels, the Banditos, the Outlaws, the Rock Machine and the Gate Keepers, among others.

[9] The CRA investigation that was undertaken revealed that the accused had made unauthorized access to accounts belonging to two police officers, three individuals involved with the Hell’s Angels and the spouse of one of them. The report also concluded that at the time in question, the accused was involved in a group associated with or involved in organized crime.

Position of the Parties

The Applicant

[10] It is the position of the accused that access to the wealth of information that is sought is required in order to duplicate the “audit process” that was undertaken by various CRA officials. The accused goes on to say that the third party production that is sought is required in order to permit the accused to make full answer and defence.

The Third Party

[11] The CRA relies upon the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), s. 241, that provides as follows:

Provision of information

241(1) Except as authorized by this section, no official or other representative of a government entity shall

(a) Knowingly provide, or knowingly allow to be provided, to any person any taxpayer information;

(b) Knowingly allow any person to have access to any taxpayer information; or

(c) Knowingly use any taxpayer information otherwise than in the course of the administration or enforcement of this Act, the Canada Pension Plan, the Unemployment Insurance Act or the Employment Insurance Act or for the purpose for which it was provided under this section.

Evidence relating to taxpayer information

(2) Notwithstanding any other Act of Parliament or other law, no official or other representative of a government entity shall be required, in connection with any legal proceedings, to give or produce evidence relating to any taxpayer information.

Communication where proceedings have been commenced

(3) Subsections 241(1) and 241(2) do not apply in respect of

(a) criminal proceedings, either by indictment or on summary conviction, that have been commenced by the laying of an information or the preferring of an indictment, under an Act of Parliament; or

(b) any legal proceedings relating to the administration or enforcement of this Act, the Canada Pension Plan, the Unemployment Insurance Act or the Employment Insurance Act or any other Act of Parliament or law of a province that provides for the imposition or collection of a tax or duty.

[12] It is the position of the CRA that items 5, 7, 8, 10, 11 and 12 in Appendix A are not covered by s. 241 of the Income Tax Act. If the applicant can meet the onus that rests upon him to satisfy the test that is required to compel the production of third party records, then the CRA does not seek the protection of s. 241 in connection with those items. Counsel for the CRA went on to state that with respect to item 5, the applicant’s request must be taken under advisement as he was unable to obtain instructions. Counsel for the CRA further advised that Mr. Casola’s H-drive listed as item 7 had been provided, to the extent that it was available, but that item 8 that consisted of the accused’s email account was not accessible as it had been deleted. If ordered by the court, the CRA is content to provide the notes created by France Lepage in connection with the CRA’s internal investigation, subject to the redaction of any solicitor-client information. Counsel for the CRA advised that there is nothing in existence in connection with items 11 and 12.

[13] Further, it is the position of the CRA that given the vast amount of data and information that is being sought, the privacy interests of the millions of taxpayers who would be affected by this disclosure far outweighs the interests of the accused in having access to this information.

The Crown

[14] Given the lack of articulation for the reason for the need for this data and information, it is the view of the Crown that this request amounts to nothing more than a fishing expedition.

Analysis

[15] It was stated time and again that the purpose of the request for the various items of third party production were required in order to “duplicate the audit process” that was undertaken by the CRA during the course of their security investigation. There was no evidence put before me to establish that the process undertaken by the CRA amounted to an audit, despite the fact that the CRA uses the phrase “audit trail” in their material. A true audit has a specific meaning. An audit is typically undertaken by an independent person from outside the organization. After an audit has been conducted, an audit report is provided that expresses the auditors’ opinion.

[16] None of these hallmarks of a true audit process are present in the material that was put before me. Instead, the material indicates that a search or review was undertaken to determine if the accused had engaged in any unauthorized access of CRA records.

[17] Martin Forget, an IT analyst with the CRA testified at the preliminary hearing that all employee actions within the CRA mainframe system are logged, including any time that an employee accesses any screen with protected information such as a name, social insurance number or business number. In this case, the accused’s employee user ID as well as the timeframe in question were entered to conduct a search of the CRA’s entire records database. The information that was extracted by Mr. Forget from the CRA mainframe was provided to his director.

[18] Mr. Martinovich testified at the preliminary hearing. He is a Team Leader in the Matching Program at the CRA.

[19] Mr. Martinovich testified that he was provided with a “data dump” of all of the access made by the accused covering the period of time that the accused worked in the Matching Program. This data dump contained between 500,000 to 600,000 lines of data.

[20] The review undertaken by Mr. Martinovich indicated that the accused accessed the files of Dann Kingsley and Phil Boudreault without having authorization to do so. The records reviewed by Mr. Martinovich were date stamped and therefore show the exact time and date that the search was conducted.

[21] Etienne Gosselin is employed with the CRA’s Internal Affairs and Fraud Control Division. Mr. Gosselin testified at the preliminary hearing. At that time, Mr. Gosselin testified that “the audit trail contains the employee’s user ID, the person record identifier number, which is unique to the employee”, and that “it contains the system and specific screens accessed by the employee”. On January 16, 2015, Mr. Gosselin was informed of the accused’s unauthorized access to the accounts of Daniel Kingsley and Phil Boudreault. On January 19, 2015, Mr. Gosselin determined that a review of the accesses made by the accused indicated that the accused had also engaged in unauthorized access in connection with the accounts of William Pagnutti, Richard Boudreault, Shane Tweedy and Kyle Aulenback.

[22] At the conclusion of the CRA internal investigation, a Final Investigation Report was prepared, a copy of which has been provided to the accused. The final full paragraph of this report states the following:

The information gathered during this investigation determined that Christopher Casola, Assessment Processing Clerk, Electronic Processing and Records Division, Sudbury TC/TSO, Ontario Region, contravened the Code of Ethics and Conduct when:

• He made unauthorized accesses to the account of the City of Greater Sudbury, the accounts belonging to two police officers, three individuals related to the Hells Angels and one of their spouses;
• He became involved in a group associated to organized crime, which put him in a conflict of interest and influenced his actions in the workplace and may be injurious to CRA’s reputation;
• He claimed five days of bereavement leave associated to the passing of Steve Marcotte, who was not a family member as defined in the collective agreement.

[23] In addition to the Final Investigation Report that has been provided to the accused, some 28 pages of various “screen shots” have been provided to the accused. This includes a list of the “ALPHA T” searches undertaken by the accused “that did not appear to be the result of work assigned to the clerk”. This documentation also includes the account display for William Pagnutti, Daniel Kingsley, Dann Kingsley, Richard P. Boudreault, Claude Boudreault Jr., Kyle Aulenback and Shayne Tweedy. In addition to the name of the individual, these accounts show the date of birth, gender, marital information, mailing address as well as a great deal of financial information with the actual personal information being redacted.

[24] This documentation shows what searches were undertaken by the accused, when he accessed the database and what information was made available to the accused as a result of these unauthorized searches.

[25] Among other things, it has been pointed out that the accused wants complete access to the MARS database, the area of the accused’s proper access and responsibility. The Crown has pointed out that no information from the MARS database has been disclosed as none of the files for the five taxpayers who were improperly accessed appear in the MARS program.

[26] The Crown also points out that the documentation that has been provided indicates the very dates that the unauthorized access took place, namely November 5, 2014; November 13, 2014; December 1, 2014; December 23, 2014; and December 30, 2014.

[27] The Crown goes on to say that the search and review undertaken by Mr. Martinovich did not create an “audit trail”.

[28] Finally, the Crown states that the applicant does not articulate why any entries on dates other than the dates of the alleged unauthorized accesses are required.

[29] I agree with the various statements made by the Crown. Despite being asked on more than one occasion to provide a reason for the requests that have been made, the only answer that was given is that the accused “wants to recreate the CRA process to double check the results to see if the results are accurate”. This is not sufficient to establish that the information that is being sought is likely relevant to an issue that may arise at trial.

[30] The applicant did not provide an expert report, or for that matter, outline any possible concerns about the accuracy of the information that was provided or to raise questions about the process that was followed by the CRA during the review of the CRA records. In the end, all that was put forward in support of the request for the production of third party records were vague assertions that there was a problem with the results of the searches that had been undertaken.

[31] These vague assertions amount to nothing more than sheer speculation. This falls far short of satisfying the onus that lies upon the applicant to establish that such third party records should be produced in order to permit the accused to make full answer and defence.

[32] Lest there be any doubt about this, the accused admitted in a written statement that was signed by him and provided to his employer as part of the internal security review that was undertaken by the CRA that he had, in fact, engaged in unauthorized access to the files of the six individuals in question.

[33] In conclusion, I can do little more than to adopt the final summary provided in the Crown Factum outlining why the applicant has failed to satisfy the onus on him to establish that the “likely relevant” threshold has been attained:

a. Those person’s who’s taxpayer information is contained in the data being requested are completely unrelated to the criminal acts being alleged either as involved persons or victims. The Applicant’s request amounts to access to 5 years of such information;

b. The Applicant has presented no evidence or information suggestive that there were issues with the manner in which employees of the CRA generated the audit trail, and subsequently searched it;

c. The Applicant has presented no evidence or information suggestive that there were issues with the manner in which employees of the CRA searched the Applicant’s workload in the MARS program;

d. The persons who performed the work were available to the defence to be examined at the preliminary hearing and at a subsequent discovery on how they performed their work;

e. The fact that the Applicant has performed a very large number of authorized searches in the course of his employment is in no way probative of whether or not in the cases of Mr. Kingsley, Mr. Boudreault, Mr. Aulenback, Mr. Tweedy and Mr. Pagnutti the searches were authorized;

f. The admission of the Applicant to the CRA investigator that he performed the unauthorized accesses as alleged and that they were performed for reasons unrelated to his workload, make the assertion that he requires the documents to determine if the conclusions are true and correct, disingenuous;

g. The details of the unauthorized searches including date, time, duration, screens accessed, the type of information found on that screen (redacted of the actual personal information) have been disclosed;

h. The disclosure of the data sought is generally prohibited by law;

i. That conclusions were drawn by the review of data does not make the contents of all of the data searched likely relevant;

j. A blanket request for the data to determine whether the conclusions drawn from the data are true and correct amounts to nothing more than a fishing expedition.

[34] In view of the fact that I have determined that the information sought is not likely relevant to an issue at trial or the competence of a witness to testify, I need not attempt to balance competing privacy interests of those who would be affected by disclosure against the accused’s right to be able to make full answer and defence.

Conclusion

[35] The accused’s application for production of various third party records is dismissed in accordance with the reasons that have been set out in this decision.

The Honourable Mr. Justice R. Dan Cornell

Released: July 11, 2018

Appendix “A”

PART IV – RELIEF REQUESTED

1. The opportunity to replicate the same process followed by Mr. Martin Forget in generating the audit trail report for Mr. Casola that was provided to Steven Martinovich, involving entering the same search criteria entered by Mr. Forget (including Mr. Casola’s user ID, as well as the time frame requested by the director) into the mainframe application in order to generate a report containing raw data with file extension .txt;
2. The MARS database that was accessible on the CRA servers between March 26, 2014 and January 7, 2015, including all open and closed cases for the applicable tax year, and any outstanding open or closed cases available from all previous years, provided in electronic format, extracted into a raw data file with file extension .txt, without human modification and in its entirety, as would have been utilitized by Steven Martinovich in his review of Mr. Casola’s work;
3. The entire CRA workload audit trail for Christopher Casola, between March 26, 2014 and January 7, 2015 created by Martin Forget, in an electronic file format, extracted into a raw data file with file extension .txt, without human modification and in its entirety, as would have been provided to a CRA investigator;
4. A data dump of the entire “Notepad” option in the MARS database prior to January 7, 2015, in electronic format, extracted as a raw data file with a .txt file extension, without human modification and in its entirety, as would be provided to a CRA investigator;
5. Any programs developed and used by the CRA to convert raw (.txt) data to Microsoft Excel formatting, as well as the detailed process in which these programs were used in the process of investigating Mr. Casola;
6. The audit trail of Mr. Martinovich’s work in reviewing the audit trail for Mr. Casola, in the same format noted above in respect of the audit trail for Mr. Casola’s work;
7. A copy of Mr. Casola’s H drive;
8. A copy of Mr. Casola’s email account;
9. Mr. Casola’s workload between March 26, 2014 and January 7, 2015 in the possession of CRA management:
10. Any and all notes created by France Lepage in respect of the CRA’s internal investigation into Mr. Casola, including any and all notes created prior to the May 13, 2015 Production Order and any and all notes created subsequent to the Production Order dated May 13, 2015;
11. Disclosure of any Court Order and or any direction from law enforcement that compelled the CRA to cooperate with any monitoring of the work being conducted by Mr. Casola at any time during the years of 2014 and 2015; and
12. Disclosure any monitoring of the work of Mr. Casola during 2014 and 2015 that was undertaken either voluntarily by CRA, as a result of CRA cooperating with any other agency, or any monitoring that was being conducted by an agency other than CRA for which CRA had knowledge that such monitoring was being conducted.