R. v. Collins, 2023 ONSC 1297

COURT FILE NO.: CR-21-10000470-0000

DATE: 20230302

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Respondent

– and –

CHRISTIAN COLLINS

Applicant

Catherine Rhinelander and Zachary Kerbel, Counsel for the Crown Respondent

Kim Schofield and Ricardo Golec, Counsel for the Applicant

HEARD: November 29, December 1 and 6 to 9, 2022, January 10, 11, and 13, and February 24, 2023

M.A. CODE J.

Reasons for judgement on A SECTION 8 cHARTER APPLICATION RELATING TO WIRETAP INTERCEPTION OF PRIVILEGED CALLS

A. OVERVIEW

[1] The Applicant Christian Collins is currently awaiting trial in this Court on various drug and firearms charges. The charges depend, to some extent, on certain wiretap intercepts. I previously heard a lengthy s. 8 Charter Application brought by a group of 50 accused whose pending trials all depend on these same wiretaps. The Applicant Collins was part of this group of 50. At the end of a lengthy four-week hearing, on December 9, 2022, I dismissed various s. 8 arguments and ruled that the evidence to be tendered at the pending trials, including the wiretaps, was admissible. See: R. v. McPherson and 49 Others, 2023 ONSC 232.

[2] At the conclusion of the above hearing, I severed and did not rule on one narrow issue relating to solicitor and client privilege, because it had not been completed at the four-week hearing. This issue related to three of the 50 Applicants who alleged that calls to their lawyers had been intercepted on the wiretaps, in violation of the execution terms set out in McMahon J.’s authorizations. Additional court time was required to finish the evidence and argument relating to that narrow issue. When the hearing resumed on January 10, 2023, two of the three Applicants withdrew from this remaining part of the Application. Evidence and argument of that issue continued until completion, but only in relation to the one remaining Applicant, Christian Collins.

[3] On February 24, 2023 I reserved judgement. These are my Reasons in relation to the alleged violation of the Applicant Collins’ s. 8 rights, by way of intercepting calls between solicitor and client.

B. FACTS

[4] The wiretap authorizations that led to the alleged interception of Collins’ solicitor and client communications were granted by McMahon J. on March 5, May 1 and June 22, 2020. They were the result of a lengthy Toronto police investigation of a group known as the Eglinton West Crips. The investigation was named “Project Sunder”. The wiretaps came to an end on October 15, 2020 when over 100 persons were arrested, and numerous serious charges were laid. The Applicant Collins was one of the arrested persons.

[5] I have previously summarized the broad facts relating to the “Sunder” investigation, as well as more specific facts relating to certain investigative techniques used during the investigation, in my Reasons in R. v. McPherson and 49 Others, supra. I will not repeat that summary of the investigative facts and simply adopt it, for purposes of the present ruling on the narrow solicitor and client privilege issue. It should be noted that this narrow issue was first raised and evidence relating to it was first heard at the earlier four week hearing of the s. 8 Application, which concluded on December 9, 2022. The ongoing hearing in January and February 2023 relating to the Applicant Collins is simply a continuation of the initial s. 8 Application brought by the group of 50 Applicants, which included Collins.

[6] The evidence that is specific to the narrow solicitor and client privilege issue was initially called by the three Applicants who had raised that issue – Kwesi Armoo, Christian Collins, and Tivaughn Fraser-McAnuff. That evidence was filed in real or documentary form, setting out the Toronto police “Session History” records of the impugned intercepts, audio tapes of the intercepts, and counsel’s transcriptions of the intercepts. Given that the Applicants were claiming solicitor and client privilege over these seized intercepts, some of the evidence was filed in sealed form and the related court exhibits were sealed, allowing the Court to read and hear the impugned intercepts without giving the Crown or the public access to them. See, e.g. Re Church of Scientology and the Queen (No.3) (1984), 1984 2141 (ON SC), 13 C.C.C. (3d) 353 (Ont. H.C.J.). In some cases, the defence waived privilege and allowed the Crown and the civilian monitors to hear the recordings and read the transcripts of some of the more innocuous intercepts, such as calls to a voicemail recording at a lawyer’s office or calls to Legal Aid Ontario. In the case of more sensitive calls, for example, where the facts of a pending arrest and legal advice were discussed over the phone, the intercepts remained sealed, and I provided a form of oral “judicial summary” of the subject matter of the intercept to the Crown. See, e.g. General Accident Assurance Co. v. Chrusz (1999), 1999 7320 (ON CA), 180 D.L.R. (4th) 241 at para. 151 per. Doherty J.A. (Ont. C.A.).

[7] The above body of real and documentary evidence filed by the Applicants, in my view, made out a prima facie case that at least some of the impugned intercepts were privileged. The para. 6 “Terms and Conditions” of the wiretap authorizations granted by McMahon J. reflected the statutory terms of s. 186(2) of the Criminal Code as they prohibited interceptions “at the office or residence of a solicitor, or at any other place ordinarily used by solicitors for … consultations with clients.” The authorizations then set out a clause relating to “live monitoring” and “automatic monitoring” which required the wiretap monitors to “discontinue the interception” and to prohibit “access” to the interception, whenever a monitor “reasonably believed that a solicitor was a party to a communication.” I have attached the full text of these para. 6 “Terms and Conditions” as Appendix A to these Reasons. See R. v. Blais (2003), 2004 8466 (ON CA), 182 C.C.C. (3d) 39 (Ont. C.A.), where these kinds of execution conditions were approved by the Court of Appeal.

[8] The Crown then proceeded to respond by calling a large body of viva voce and documentary evidence relating to efforts made by the Toronto police to comply with the above execution conditions set out in the wiretap authorizations. In particular, the civilian monitors who had been on duty in the “wire room” when the impugned interceptions occurred, were called by the Crown as well as police investigators who had been in the “wire room” at the time of the intercepts. Much of this evidence related to the Applicants Armoo and Fraser-McAnuff, who eventually withdrew their Applications in relation to this issue. Accordingly, I will only summarize the evidence relating to the Applicant Collins.

[9] The focus of the Applicant Collins’ argument was on three intercepts. The first of these three intercepts was a call from Collins’ 647-561-4952 number to the main telephone number of the law firm Kim Schofield & Associates (416-975-9660). The call took place on April 19, 2020, starting at 4:53:30 pm. Collins was a named target in the first wiretap authorization granted by McMahon J. on March 5, 2020. The sufficiency of the grounds for naming Collins in that authorization are discussed in my earlier Reasons on the s. 8 Application. See R. v. McPherson and 49 Others, supra at paras. 116-122. Important context for this first impugned intercept is that Collins had been arrested by Greater Sudbury Police Service officers assisted by the O.P.P. the previous night, on April 18, 2020, in Sudbury. This was a Saturday. He had been charged with certain drug offences and advised of his right to counsel. The O.P.P. facilitated two phone calls, first to Ms. Schofield’s office and then directly to her cell phone, at approximately 11:20 pm. These calls were not intercepted as they were made on an O.P.P. line. Collins was released on bail so he was out of custody when he called Ms. Schofield’s office again on the next day, which was a Sunday.

[10] The “Session History” document that is kept by the police computer system in the “wire room” indicates that the subscriber information for Ms. Schofield’s law firm did not populate on the computer screen when this first impugned intercept was picked up by Ryan Fenech, who was one of the civilian monitors in the “wire room”. Counsel carried out a Google search for the number called and it is listed as Ms. Schofield’s law firm, together with her webpage. The call came in at 4:53:30 pm, on the day after Collins’ arrest in Sudbury, and it lasted two minutes and 47 seconds. Fenech “minimized” the call after 46 seconds, that is, at 4:54:16 pm. No one else listened to the call in the “wire room” other than Fenech. The term “minimize” means that Fenech stopped the computerized system from playing and recording any more of the call after that point. The call continued until it ended at 4:56:17 pm but there would have been nothing to listen to and nothing was being recorded after it was “minimized” at 4:54:16 pm. Between 4:57:24 pm and 4:57:34 pm, after the call ended, Fenech filled out the required fields in the police computer system, noting the language of the call as “English” and classifying it as “privileged”. Once the recording has been marked “privileged” it cannot be accessed, according to the terms of McMahon J.’s authorization. Between 4:57:36 pm and 4:57:44 pm, Fenech prepared the required “synopsis” of the call. He typed it on the “Session Details” document as follows: “Automated Message for Kim Schofield & Associates, Counsel Call – Minimized.” All of these steps taken by the monitor, and the times when these steps were taken, are recorded in the “Session History” document generated by the JSI computer system.

[11] The evidence filed by the Applicant Collins included the 46 second interception of this call, before it was “minimized.” On behalf of the Applicant Collins, Ms. Schofield waived privilege over this interception. As a result, the police unsealed it after I made an Order to do so, and it was played in open court. Counsel’s transcription of the call is as follows:

Voicemail: “You have reached Kim Schofield and Associates, due to the recent COVID-19 outbreak, our office will be operating under reduced office hours, however we will remain open. The office will be open 10:00am to 2:00pm Monday to Friday. Please be advised that our office is still accepting new clients and is still available 24 hours a day to take arrest calls, conduct bail hearings and bail reviews. If you wish to speak to counsel or if this is an emergency, please contact Kim Schofield directly at [cuts off]”

It is not disputed that the above voicemail message left on the law firm’s line, ends by providing Ms. Schofield’s cell phone number. The monitor Fenech “minimized” the call at the point where that number was provided to the caller (presumably Collins).

[12] The second of the three intercepts alleged by the Applicant Collins to violate solicitor and client privilege, commenced at 4:54:25 pm on the same day, namely, April 19, 2020. This call was from the Applicant Collins to the cell phone number for Ms. Schofield. The call was placed on Collins’ 647-561-4952 number. Ms. Schofield’s name as the subscriber for the cell phone number being called, did not populate on the “Session History” document. The call lasted for one minute and 52 seconds. It can be seen that this second call began nine seconds after the previous call to Ms. Schofield’s office had been “minimized”. The “Session History” document for the second call indicates that it was picked up by Madeline Conroy, who was another civilian monitor working in the “wire room”. The facts relating to this second call are complicated by the lack of any audio recording. The “Session History” document indicates that Conroy was live monitoring the call for one minute and 40 seconds, before she “minimized” it at 4:56:05 pm. In other words, the “Session History” tends to indicate that Conroy listened to, and the system would have recorded, all but 12 seconds of the call. The call ended at 4:56:17 pm, 12 seconds after it was “minimized”. When Ms. Schofield obtained an Order from the Court requiring the police to unseal their recording of the call and produce it, the recording produced was “dead air”. In other words, no one can be heard speaking on the recording of this interception. As a result, there is an issue on the present Application as to whether the call was intercepted or recorded or listened to for the one minute and 40 second period, before it was “minimized”.

[13] The evidence filed by the defence, based on the “Session History” document, indicates that two other persons in the “wire room” listened in on this second call, while Conroy was live monitoring. The first of these two persons was Fenech who began listening in at 4:55 pm, that is, 35 seconds after the call began at 4:54:25 pm. It will be recalled that Fenech had “minimized” the first call, summarized above, at 4:54:16 pm and that the first call continued until 4:56:17 pm, after which Fenech completed various administrative tasks relating to the first call. It can be seen that the two calls continued simultaneously for the duration of the second call, and then both calls ended at the same time. Fenech only monitored the second call briefly, from 4:55 pm to 4:55:15 pm, and then again from 4:55:31 pm to 4:55:40 pm. The second of the two persons who listened in on the second call was Sgt. Mildenberger. He was one of the Sunder investigators who was working in the “wire room”. The “Session History” document indicates that he listened in to this second call for 21 seconds, from 4:55:02 pm to 4:55:23 pm. In other words, three persons (Conroy, Fenech, and Mildenberger) listened in to the call before it was “minimized” by Conroy at 4:56:05 pm.

[14] After this second call ended at 4:56:17 pm, the lead monitor Conroy carried out various administrative tasks, classifying it as “non-relevant” at 4:56:58 pm and preparing the “synopsis” at 4:56:59 pm. Conroy never entered the language of the call. Shortly afterwards, from 5:14:09 pm to 5:14:43 pm, the “Session History” indicates that Sgt. Mildenberger did the following: “access content”; “played audio segment #1”; and “reviewed status, reviewed by investigator only”. The “Session Details” document indicates that Conroy’s “synopsis” simply stated “Minimized” and Sgt. Mildenberger’s “Investigator’s Comments” were simply to enter his badge number (8503) with no comments.

[15] The final entries on the “Session History” document relating to the second call indicate that two additional officers accessed the intercept. Late in the day of the intercept, on April 19, 2020 at 11:26:40 pm, the entries state that Det. Cst. Belza “access content” and “played audio segment No. 1”. A month later, on May 20, 2020 from 6:45:45 pm to 6:48:35 pm, the entries state that Det. Cst. Murray “access content” and “played audio segment No. 1” and then “review status, review by investigator only.” Det. Cst. Murray changed the “classification” of the call to “privileged”. Belza and Murray were both Project Sunder investigators working in the “wire room.” In the end, this intercept had apparently been listened to at various points by two monitors (Conroy and Fenech) and three investigators (Mildenberger, Belza, and Murray). The main issue in relation to this apparently privileged intercept is whether there was anything to listen to, that is, whether it was “dead air” as the present recording suggests.

[16] The third and last of the three impugned intercepts took place almost five months after the first two intercepts, that is, on September 9, 2020. The context for this call was that the “Sunder” investigators had obtained a warrant to arrest Collins and to search an address and a vehicle for a firearm. A team of officers was out looking for him. Once again, this third call was made on Collins’ 647-561-4952 phone. It was not placed to Ms. Schofield or her law firm. Rather, it was a call to 416-801-7529 which is the number of Eboue Reinbergs. Counsel did a Google search for that number and it is listed as Eb Reinbergs, “Business and Entertainment Lawyer.” The grounds in the wiretap Affidavit relating to the Applicant Collins indicated that he was involved to some extent in performing rap music, some of which was posted on YouTube. See R. v. McPherson and 49 others, supra, at para. 116.

[17] The “Session History” document indicates that this third call was picked up by Lindsay Hicks, who was another civilian monitor in the “wire room”. The call lasted for one minute and 53 seconds and it was never “minimized”. Ms. Hicks was the lead monitor on the call for almost one minute, from its beginning at 1:24:28 pm until 1:25:26 pm. During this period, she classified the call as “relevant”. Ms. Hicks ceased acting as lead monitor before the call ended because some kind of computer event occurred at 1:25:26 pm. This event is described on the “Session History” as, “Stop Audio Monitoring (Failure).” Ms. Hicks did not recall the intercept but she explained in her testimony that there had been a problem with the “wire room” computer system that would occasionally cause an intercepted call to “bounce” from one monitor to another and this is likely what happened. The “Session History” indicates that at the time when Ms. Hicks stopped monitoring the call due to this “failure” – at 1:25:26 pm – another civilian monitor named Claudine Creighton began live monitoring the call. Ms. Creighton became the lead monitor at this point and continued as lead monitor until the call ended at 1:26:21 pm. She entered the language of the call as “English” and she changed the classification of the call to “Non-Relevant”. After the call ended, Ms. Creighton prepared the “synopsis” at 1:27:39 pm. At this point, the original lead monitor, Ms. Hicks, replayed the recording of the call. She decided that it was a call to a lawyer and she changed the classification again, this time to “privileged”. The “Session History” shows these steps being taken between 1:28:34 pm and 1:33:56 pm, when Ms. Hicks “access content” and “played audio segment #1” and then prepared “synopsis” and entered “Classification Privileged”.

[18] During the above period of almost two minutes, while Hicks and Creighton were the monitors on the third call, the “Session History” shows that three police officers listened in at various points. Sgt. Brown, who was the lead O.P.P. officer on “Project Sunder”, listened in on four separate occasions: for 21 seconds from 1:24:36 pm to 1:24:57 pm; for seven seconds from 1:25:10 pm to 1:25:17 pm; for two seconds from 1:25:23 pm to 1:25:25 pm; and from 1:25:41 pm until the call ended at 1:26:21 pm. The second officer who was listening in was Det. Cst. Gajraj. He was one of the “Sunder” investigators assigned to the “wire room”. He listened in to the call on two occasions: for 49 seconds from 1:24:37 pm to 1:25:26 pm; and from 1:25:29 pm until the call ended at 1:26:21 pm. The third officer who was listening in to the call was Det. Tanabe. He was one of the three officers-in-charge of “Project Sunder” and he was the supervisor in the “wire room”. He listened in to the call for 25 seconds from 1:25:56 pm until the call ended at 1:26:21 pm.

[19] Collins waived privilege over this intercept and it was played in open court and was used to refresh the police witnesses’ memories. Counsel’s transcription of the call was as follows [I have inserted the apparent names of the speakers, with one exception who is unknown]:

Collins: [unintelligible] In 10 minutes I’ll call you right back. Calling the lawyer right now [unintelligible] is your girl here?

Unknown: Yeah. Hold on a second, I’ll be right back.

[recording is silent, with intermittent beeping]

Collins: Hey Abi [PH], it’s Christian calling. I got the, uh what’s it called, the licensing contract from you last week. I was wondering, could I get another contract written up, like separate one…

Reinbergs: Ok

Collins: Practically saying that I’m also going to do a deal with, my… just to get the advance back, uh, sorry not the advance… the goal for what I’m trying to… to pay the royalties to the label faster, could I involve my proceeds from my shows and uh features, things like that, could like one of those contracts done, to include other things that I want..

Reinbergs: Yeah

Collins: …to contribute back to the … and [audio cutting out] ok, I’m going to send you a quick email right now. And I kind of wanted to involve merch too, get that involved, technically if we can add that too.

Reinbergs: Send me a quick email. The short answer is yes, just send me a quick email, ok.

Collins: Ok great, I’ll send you, [audio cutting out] I’ll send you, alright bye.

Reinbergs: Throw that in the email, I’ll give you my comments. Alright.

[20] The audio recording of this call is helpful as it shows that Collins was speaking to someone else at the beginning of the intercept. His 647-561-4952 phone was ringing on Eb Reinbergs’ line but the call had not yet been picked up. Collins spoke briefly to this other person who was either in the same room in the background or, more likely, was on a call with Collins on another telephone that Collins was using at the same time as he placed the call to Reinbergs. Collins has a mild accent, and he was apparently not speaking into the phone that was placing the call to Reinbergs. As a result, the volume and clarity of this initial brief background conversation (where Collins says, “calling the lawyer right now”) is not as loud and clear as the later conversation with Reinbergs (when Collins appears to be speaking directly into the phone being used in the intercept). The audio recording also shows that there was a period of silence and a period where the phone was ringing, after the initial background conversation. Accordingly, the actual call with the lawyer Reinbergs was relatively brief and Reinbergs says very little.

[21] The broader context in which the three impugned intercepts were situated is that the “Sunder” investigators were authorized to intercept Collins on four separate phone numbers that he was apparently using at the time. The total number of intercepts on all four of these phone numbers was 5,004. Collins’ most frequently used phone number was the 647-561-4952 number on which he made the three calls summarized above. The police intercepted 2,956 calls on this one line between March 23 and September 9, 2020. The even broader context was that the “Sunder” authorizations were used to intercept calls made by 94 targets, between March 6 and October 15, 2020. There was a total of 236,251 interceptions on 150 telephone numbers.

[22] There was a lot of general background evidence called at the hearing of this s. 8 Application, about how the “wire room” operated at the time. In particular, Jennifer Paquin is the civilian Systems Administrator at the Technical Investigations Group of the Toronto Police Intelligence Services Section. She was sometimes referred to as the clerk or supervisor of the civilian monitors in the “wire room”. It is her unit that is responsible for implementing a wiretap authorization, once it has been granted by a judge. She had previously worked in the unit as a civilian wiretap monitor.

[23] Ms. Paquin testified that once a wiretap authorization is granted, the relevant information concerning the named targets and their telephone numbers is entered into an intercept collection computer system used by the Toronto Police Services. The computer system was obtained from Jatom Systems Incorporated (JSI). The telephone service providers, such as Rogers or Bell, connect the targets’ phone numbers to the JSI system and the interceptions commence. It is this JSI computer system that generates the “Session History” documents that have been referred to above, noting any time when a user accesses the audio file stored in the computer system.

[24] The authorizations for “Project Sunder” required live monitoring. The civilian monitors in the “wire room” would be briefed by the investigators about the case and about the terms of the authorization. Normally, there is one large “wire room” where the monitors have workstations. Ms. Paquin would sit in the middle and act as their supervisor. The police investigators would sit in an adjacent room with their own workstations. During the pandemic, when the Sunder wiretaps took place, there were two separate “wire rooms” for the monitors, in order to allow social distancing. The police investigators would sit in two adjacent rooms. The investigators have access to telephones and to the Internet but the monitors do not.

[25] Ms. Paquin testified that “minimizing” an interception means stopping both the audio listening function on the JSI system and stopping any further recording of the call. The system was programmed to automatically “minimize” any call during the “Sunder” interceptions that was not being live monitored. It is the responsibility of the civilian monitors to “minimize” any call being live monitored in two circumstances: first, if none of the named targets are on the call; and second, if it is a call between a solicitor and client. After a call has been “minimized”, the authorization allowed the monitors to check the call at reasonable intervals, in order to confirm that it was still a call between a lawyer and client or that there was still no named target on the call. This practice is known as “spot monitoring” and it was permitted by the authorizations. The police investigators cannot act as monitors and they cannot “minimize” or “spot monitor” an interception. They can listen in to a live interception but they will only hear any part of the call that has not been “minimized”. They can also listen to an archived audio file of a call after it concludes, provided it has not been classified as “privileged”. Once again, they would only hear any part of a call that has not been “minimized”.

[26] The monitors have to be logged in to the JSI computers at their workstations when a call is intercepted. Each monitor had three computer screens at their own workstation. However, they could only live monitor two interceptions on two screens at any one time. The third screen was for emergency back-up. The JSI system would automatically assign a call to a monitor who was free when the interception commenced. That initial monitor would also be responsible for entering the language of the call, preparing a synopsis of the call, and classifying the call (as relevant, non-relevant, privileged, or unknown). Once an interception is classified as “privileged”, the recording cannot be accessed by anyone without first obtaining a Court Order.

[27] All of the above activity, such as who is monitoring and who is listening in to a call, is noted in a “Session History” report that is generated by the JSI system. This report also shows the basic information about the call that the monitor has at the top of the computer screen, when the interception begins, such as the telephone number being intercepted, and the named target associated with that number. The JSI system also shows the phone number of the other party to the call. However, no subscriber information about that other phone number appears on the screen, such as the name of the other party, unless the number has already been entered in the JSI system. The police ask the telephone companies to provide subscriber information for unknown parties on intercepted calls with named targets. That subscriber information is then entered into the JSI system and it would appear on the monitors’ screens in subsequent calls. For example, the subscriber information for Ms. Schofield’s personal cell phone was requested from Rogers and was received and uploaded to the JSI system on April 20, 2020. This was the day after the second April 19, 2020 intercept summarized above. Similarly, the subscriber information for Eboue Reinbergs’ phone number was requested from Bell Mobility but it was not received until September 10, 2020 and was then uploaded to the JSI system on September 11, 2020. The interception of the call from Collins to Reinbergs (the third call summarized above) was on September 9, 2020. The wiretap authorizations granted by McMahon J. did not allow the police to obtain subscriber information from the phone companies for any party who was not a named target until after that party was intercepted on a call with a named target.

[28] Once a phone number called by a named target was associated with a lawyer, that number could be “alarmed”. Ms. Paquin would either initiate this process herself or she would receive a request from an investigator to “alarm” a particular line. She would then implement the request by putting the “alarm” in the JSI system. An audible noise would alert the monitor whenever the target called the “alarmed” number and the monitor would be expected to immediately “minimize” the call. Ms. Schofield’s personal cell phone number was “alarmed” on May 21, 2020. This was the day after Collins’ April 19, 2020 call to Ms. Schofield’s cell phone (the second impugned intercept summarized above) had been accessed and classified as “privileged” by Det. Cst. Murray on May 20, 2020. Ms. Schofield’s office number and Eboue Reinbergs’ number were not “alarmed”. There was no automatic system in place to “alarm” all phone numbers associated with a privileged call. If a lawyer’s phone number had not been “alarmed”, and the subscriber information for the number had not been entered in the JSI system, the monitors had no access to the Internet and so the monitor could not Google the phone number. However, the monitor could ask Ms. Paquin to assist in this regard as she was seated nearby and she did have access to the Internet. Accordingly, if a monitor suspected that a named target might be calling a lawyer, Ms. Paquin could quickly check the subscriber information for the number on the Internet.

[29] The investigators would brief the monitors when something of interest happened, such as a shooting. The monitors were expected to alert the investigators, so they could listen in to particular calls when something urgent was happening. Det. Tanabe testified that the reason why investigators listen in to calls, even when they are not alerted by the monitor, is to acquire current information about a crime that is in progress or that is being discussed. The investigators can then contact surveillance teams. As long as an investigator is in the “wire room” and has logged in to the JSI system, they can listen in live to any part of an interception that has not been “minimized”. The investigators can also classify a call as “privileged”, if the monitor has failed to classify it correctly. The investigators must review all intercepted calls, after the lead monitor has completed his/her work, in order to note the “Investigator’s Comments” about the call in the JSI system and to correct any erroneous classifying of the call. For example, if a monitor classified a call as “non-relevant”, the investigator can change the classification to “relevant” after listening to the audio file of the call.

[30] A number of monitors testified at the hearing of the Application. Some of these monitors gave evidence relating to intercepts of the two Applicants Armoo and Fraser-McAnuff, before they withdrew their Applications relating to the solicitor and client privilege issue. Other monitors gave evidence relating to the three impugned intercepts of the Applicant Collins, summarized above. None of these monitors had any real present recollection of the particular intercepts, even after their memory had been refreshed by listening to the audio recording of the call. This is hardly surprising, given the large number of “Project Sunder” interceptions and the passage of over two years since the interceptions occurred. The monitors nevertheless provided helpful evidence about their general practices and about what likely happened during particular interceptions, based on the “Session History” and based on the audio recording of the interception (assuming there was an audio recording and assuming that any claim of privilege had been waived).

[31] The most experienced monitor who testified was Tommaso Lombardo. I found him to be particularly reliable and credible. He had been a Toronto Police civilian monitor for almost 20 years and had been involved in 14 major projects. He testified that the monitors are trained in the JSI system and in “minimizing” calls. When the call comes in on the computer screen, the monitor must determine whether a named target is on the call, whether the call is relevant, and whether it is privileged. During the pandemic, there would be three monitors in each “wire room”, as well as the supervisor/clerk. It can be noisy in the room. Lombardo does not use headphones because he could be listening to two calls on two screens at the same time. The two other monitors and the clerk/supervisor are nearby and within speaking distance.

[32] Lombardo described how he would determine whether a call was with a lawyer. He testified that many persons provide advice to a named target and they are not lawyers. So he would ask the clerk/supervisor to do an Internet search on a phone number where he suspected that it may be a lawyer, or he would wait until he heard some content indicating that the person is a lawyer, or he would use one of his other computer screens to scroll back and listen again to the greeting at the beginning of the call, in case he had missed some content early in the call. Monitors would sometimes ask another monitor to listen in to the call and help, if the first monitor was unsure whether the call was privileged. The investigators, who were in a separate room, would also sometimes intervene by telling the monitor that the call was with a lawyer.

[33] Once Lombardo determined that a call was privileged, he would fill in the synopsis tab in the JSI system with the word “lawyer” and his badge number. He would classify the call as “privileged” and advise the clerk/supervisor, so that she would have the lawyer’s line “alarmed”. There was also a white board in the “wire room” where the lawyer’s phone number would be displayed until the JSI system was programmed with the “alarm” on that number. These administrative tasks would normally be carried out shortly after the call was completed. However, in a large project the monitors can be busy live monitoring a lot of calls and so Lombardo would return to his completed calls later, once he had time, in order to carry out the various administrative tasks. Lombardo had never had one of the investigators tell him to “unminimize” a call.

[34] All of the monitors and police investigators who were involved in the three impugned interceptions relating to the Applicant Collins testified. I will refer to their evidence in the next section of these Reasons, when analyzing whether those interceptions violated the terms of execution set out by McMahon J. in the wiretap authorizations.

C. ANALYSIS

i) The law relating to compliance with minimization terms and conditions

[35] I have already ruled that the wiretap authorizations granted by McMahon J. in “Project Sunder” were in compliance with the law and did not violate s. 8 of the Charter. Indeed, the most important aspects of s. 8 Charter compliance, relating to “reasonable and probable grounds”, were conceded by the Applicants. See R. v. McPherson and 49 others, supra at paras. 14 and 171.

[36] In addition, I have already noted at para. 7 above, that the “Terms and Conditions” in these authorizations relating to the interception of solicitor and client communications were modeled on the Court of Appeal’s decision in R. v. Blais, supra at paras. 5-7. These terms are now standard in many Ontario wiretap authorizations. As noted above, they are attached as Appendix A to these Reasons. Rosenberg J.A., speaking for the Court in Blais, described them in the context of an authorization that permitted interceptions of the phones on the range of a Detention Centre. After setting out s. 186(2) of the Criminal Code, which prohibits any interceptions at places “ordinarily used by a solicitor and by other solicitors for the purpose of consultation with clients”, Rosenberg J.A. stated the following:

The appellant submits that the telephones on the detention centre ranges fall within the emphasized portion of the section being places “ordinarily used by a solicitor and by other solicitors for the purpose of consultation with clients”. I do not agree with that submission. Inmates awaiting trial may resort to a jail telephone to consult with their lawyers, but the telephone is not a “place” ordinarily used by a solicitor for the purpose of consultation with clients any more than the telephone in an accused’s home or office is such a place. The words of the section must be interpreted having regard to their ordinary meaning in the context of the scheme and purpose of the legislation. The context indicates that the focus of the subsection is on places where lawyers may be when they ordinarily consult with clients, not where the clients may happen to be. Thus, the private interview rooms in the jail where lawyers consult with clients would fall within s. 186(2) as would, for example, the lawyer’s own mobile telephone. But telephones on the ranges in the jail are not places ordinarily used by solicitors.

The authorizing judge did recognize that there was a high probability that accused awaiting trial would use the range telephones to call their lawyers and he imposed strict conditions. Thus, the telephones had to be live monitored and whenever an inmate made a call to a solicitor the monitor was required to stop listening and stop recording and was only permitted to check periodically to ensure that the call was still to a solicitor. These conditions struck an appropriate balance to ensure that the important interest in solicitor client confidentiality was respected. [Emphasis added.]

[37] Given that the authorizations complied with s. 8 of the Charter, and given that the “Terms and Conditions” relating to solicitor and client privilege complied with the law as set out in Blais, the only available s. 8 avenue of attack was to challenge the manner of execution of the wiretaps. In the early s. 8 Charter case law, this was held to be one of the three basic components of s. 8 compliance. Lamer J., as he then was, gave the majority judgment in R. v. Collins (1987), 1987 84 (SCC), 33 C.C.C. (3d) 1 at p. 14 (S.C.C.) and stated the following:

A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. In this case, the Crown argued that the search was carried out under s. 10(1) of the Narcotic Control Act. As the appellant has not challenged the constitutionality of s. 10(1) of the Act, the issues that remain to be decided here are whether the search was unreasonable because the officer did not come within s. 10 of the Act, or whether, while being within s. 10, he carried out the search in a manner that made the search unreasonable

[38] The Applicant Collins submits that the three impugned interceptions summarized above were obtained in a manner that did not comply with the “Terms and Conditions” imposed by McMahon J. Accordingly, the manner of execution of the authorization was unreasonable in these three instances, because it was not in compliance with the legal requirements imposed in relation to solicitor and client privilege. I agree with this characterization of the issue on the present s. 8 Application. A failure to impose reasonable minimizing “Terms and Conditions”, for example, in relation to certain locations like public pay phones or business premises, may in some cases violate s. 8 of the Charter. See: R. v. Thompson et al (1990), 1990 43 (SCC), 59 C.C.C. (3d) 225 at pp. 273-274 (S.C.C.); R. v. Mahal (2012), 2012 ONCA 673, 292 C.C.C. (3d) 252 at paras. 103-107 (Ont. C.A.). More significantly, when the police fail to comply with minimizing execution conditions, such as “live monitoring” terms in relation to certain locations or terms relating to intercepting only “named targets”, there will be a s. 8 violation. As Watt J.A. explained in R. v. Durant (2019), 2019 ONCA 74, 372 C.C.C. (3d) 66 at paras. 205-207 (Ont. C.A.), speaking on behalf of the Court:

An authorizing judge has a discretion, but not an obligation, to include terms and conditions in the authorization or renewal. To determine whether to include terms and conditions, the authorizing judge must consider whether their inclusion is "advisable in the public interest": Criminal Code, s. 186(4)(d); Doroslovac, at para. 32.

For instance, an authorizing judge may include terms whose purpose is to minimize the risk that communications of others who are beyond the scope of the authorization or renewal will be captured: Doroslovac, at para. 33.

To be "in accordance with an authorization" and therefore constitutional, interceptions must be compliant with the authorization as a whole, including with any terms or conditions contained in the order as advisable in the public interest. To determine whether an authorization permits certain interceptions to be made or, after the fact, whether those interceptions have been made "in accordance with an authorization", requires an examination not only of the specific words, phrases and clauses in the enabling order, but also the order as a whole: Doroslovac, at para. 41.

[39] Simiarly, in R. v. Doroslovac (2012), 2012 ONCA 680, 292 C.C.C. (3d) 277 at paras. 29-30 (Ont. C.A.), Watt J.A. stated the following on behalf of the Court:

A search or seizure is reasonable if it is authorized by a law that is itself reasonable and is carried out in a reasonable manner: R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265 (S.C.C.), at p. 278.

Second, to be carried out in a reasonable manner pursuant to a conventional authorization issued under s. 186(1) of the Criminal Code, the interception of private communications must be carried out in accordance with the terms of a valid authorization, as required by s. 184(2)(b). [Italics of Watt J.A.]

Also see: R. v. Ansari, 2010 ONSC 1316; R. v. Peluso, 2010 ONSC 1952.

[40] Applying the above authorities to the present case, the issue is whether the police complied with the minimization terms relating to solicitor and client privilege, when they apparently intercepted the three impugned calls between the Applicant Collins and his lawyers. In this regard, the s. 8 constitutional standard when assessing police compliance with minimization terms and conditions, is whether the “investigators reasonably believed” they were in compliance and not whether they were correct. See: R. v. Doroslovac, supra at paras. 36, 50, and 57; R. v. Thompson et al, supra at pp. 269-271; R. v. Pires and Lising (2005), 2005 SCC 66, 201 C.C.C. (3d) 449 at para. 41 (S.C.C.).

ii) The first and third impugned interceptions and whether they violated the “Terms and Conditions” of the authorizations

[41] The first and third impugned interceptions summarized above are much easier to address than the second interception. Accordingly, I will begin my analysis of the three intercepts with the April 19, 2020 call to Ms. Schofield’s law firm and the September 9, 2020 call to Mr. Reinbergs. I have already summarized most of the evidence relating to these two calls in the previous section of these Reasons. I will only repeat those parts of the evidence that are essential to understanding why or when a call was or was not “minimized”.

[42] The April 19, 2020 call to Ms. Schofield’s law office is set out above in its entirety at para. 11. That date was a Sunday during the early stages of the pandemic. The call started at 4:53:30 p.m. The Applicant Collins apparently placed the call. It was the afternoon following his arrest and release the night before on drug charges in Sudbury. Collins did not speak during this wiretap interception, nor did anyone at the law firm pick up the phone and speak. The only interception is of the recorded voice message on the law firm’s main phone line.

[43] This interception (referred to as “Session 14”) provides important context for the immediately following call that Collins placed to Ms. Schofield’s cell phone (referred to as “Session 15”). In spite of its importance as context, I am satisfied that the interception itself is not protected by solicitor and client privilege. The classic definition of the privilege, that has repeatedly been adopted by the Supreme Court, is taken from Dean Wigmore’s leading text on Evidence (McNaughton Rev. 1961), Vol. 8 at s. 2292, p. 554:

Where legal advice of any kind is sought from a professional legal advisor in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.

See: Descoteaux et al v. Mierzwinski et al (1982), 1982 22 (SCC), 70 C.C.C. (2d) 385 at p. 398 (S.C.C.); R. v. Gruenke (1991), 1991 40 (SCC), 67 C.C.C. (3d) 289 at p. 301 (S.C.C.); R. v. McClure (2001), 2001 SCC 14, 151 C.C.C. (3d) 321 at paras. 29 and 36 (S.C.C.). In both Gruenke and McClure, the Court stressed Wigmore’s further assertion that any claim of privilege requires that the “element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.” In this regard, the Court in McClure also stressed that, “Not all communication between a lawyer and her client are privileged.”

[44] Applying these principles to “Session 14”, I am satisfied that the recorded voice message left by Ms. Schofield’s law firm for prospective clients was not “made in confidence” and was not privileged. Indeed, at 11:20 p.m. on the previous night, the arresting officers in Sudbury had phoned this number on the Applicant Collins’ behalf, pursuant to the officers’ s. 10(b) Charter duties. By listening to the recorded message, the officers must have learned Ms. Schofield’s cell phone number (which is provided in the recorded message), and they proceeded to place a call to that cell phone number on Collins’ behalf, so that he could reach his lawyer on a Saturday night and speak to her in confidence. In other words, the recorded voice message at the law firm is available to the general public, including to police officers, in order to facilitate confidential privileged calls with counsel during hours when the law firm is not open. The recorded voice message does not meet Wigmore’s essential requirement of confidentiality.

[45] It should be noted that para. 6(b) of McMahon J.’s wiretap authorization required “minimization” whenever a monitor “reasonably believes that a solicitor is a party to a communication.” This condition is not limited to communications that are protected by solicitor and client privilege and covers a broader class of any communications with a lawyer. In my view, the recorded voice message in “Session 14” was also not covered by the broader terms of para. 6(b) which applies only where “a solicitor is a party to a communication.” I am satisfied that the recorded voice message was a public announcement made by an agent of the law firm, somewhat like an advertisement or a notice placed in a newspaper or website, or on social media, or affixed to the exterior door of the law firm. It simply advises prospective clients of office hours during the pandemic, and that “our office is still accepting new clients,” and that they could contact Ms. Schofield by calling her cell phone number. I am satisfied that this kind of publicly available statement or notice was not covered by para. 6(b) of the authorization. I also note that the call was properly minimized before Collins could leave any message on the law firm’s voicemail. Any such message would have been covered by para. 6(b) because it is a communication that would undoubtedly have been passed on to one of the lawyers in the law firm. Similarly, any call to the law firm during office hours that was picked up by one of counsel’s agents would also have been a communication that was covered by para. 6(b). The facts relating to “Session 14” are unusual because the interception was of nothing more than a recording of a publicly available notice or announcement. The interception was erroneously classified as “privileged” by Fenech and I have now reversed that classification, pursuant to the proviso set out at the end of para. 6(b).

[46] In light of the above analysis of this interception, I need not address the testimony of the civilian monitor Ryan Fenech, who explained why he listened to this intercept for 46 seconds before he “minimized” it and explained why he classified the intercept as “privileged”. He was an inexperienced monitor, he had little or no recollection of the call, and he was not a particularly reliable witness. I will refer to his evidence relating to “Session 15”, which is more important, when I analyze that much more difficult intercept in the next section of these Reasons. For all the above reasons, the interception of the call to Ms. Schofield’s law firm on April 19, 2020 did not violate the “Terms and Conditions” of the authorization relating to calls to lawyers.

[47] Turning to the September 9, 2020 call to Eboue Reinbergs, it is a relatively short intercept and it is reproduced in its entirety at para. 19 above. Although the “Session History” document states that the call lasted 1 minute and 53 seconds, there is a significant period at the start of the intercept where the phone is ringing and Collins is engaged in background conversation with someone, followed by a period of silence. Once Mr. Reinbergs picked up the call, the actual intercepted communication between him and Collins is brief. Collins asked Reinbergs about “the licensing contract” and about using “proceeds from my shows” in order to “pay the royalties to the label.” He asked if he could “get another contract written up” in order to achieve these purposes. Reinbergs simply replied, “Ok…Yeah… send me a quick email. The short answer is yes.” This intercept is referred to as “Session 2677”. It was never “minimized” and so there is a recording of the entire call. I ordered it produced to defence counsel because it had been classified, after the fact, as “privileged”. As a result, it had been sealed by the “wire room” staff and could not be unsealed and produced without a court order.

[48] The history of this intercept is complicated by the fact that it “bounced” between two different monitors, apparently due to some computer “failure” that occurred at 1:25:26 p.m. (just under one minute after the call had started at 1:24:28 p.m.). The initial monitor was Lindsay Hicks. She had no real recollection of this call, even after listening to the recording in an effort to refresh her memory. She testified that she must not have heard Collins’ statement, “Calling the lawyer right now”, during the background conversation while the phone was still ringing at the start of the call. If she had heard this, she testified that she would have immediately “minimized” the call. She agreed that the call was about “contracts” but there was nothing about this content that made her think that it was a call to a lawyer.

[49] The second monitor, who took over from Ms. Hicks when the call “bounced” to her computer screen, was Claudine Creighton. Like Hicks, she testified that there was nothing about the call that indicated to her that it was made to a lawyer. Ms. Creighton thought that the call was about a business deal and finances and about organizing an event. Ms. Creighton, of course, was not monitoring the call at the start when Collins had referred to “calling the lawyer right now.”

[50] After the call concluded, the “Session History” document indicates that Ms. Hicks re-played the recording while she performed various administrative tasks during a five minute period between 1:28:34 p.m. and 1:33:56 p.m. In particular, she prepared a “synopsis” of the call and she changed her original classification of the call from “relevant” to “privileged”. She did not recall how or why she now realized that the call was “privileged”. However, she testified that there were three possible explanations: either she now heard Collins refer to “calling the lawyer” when she re-listened to the background conversation at the start of the call; or she asked the clerk/supervisor to Google subscriber information for the phone number called and learned that the call was to a lawyer named Reinbergs; or she re-evaluated the content of the call relating to “contracts”. Once Ms. Hicks had classified the call as “privileged”, no one could go back in and listen to it. She would also have notified the clerk/supervisor that the call was “privileged” so that the lawyer’s phone number would be alarmed and his name would go up on the white board. She testified that this was “standard practice”. She could not explain why this never happened in relation to Reinbergs’ phone number.

[51] In addition to the two civilian monitors, three police investigators who were in the “wire room” also listened in to parts of this call between Collins and Reinbergs. All three of these officers testified. The “Session History” indicated that none of the officers was listening in during the first five or six seconds of the intercept when Collins stated, “Calling the lawyer right now.” All three officers testified that they did not think the call was to a lawyer. Det. Tanabe knew that Collins was involved in the music business and he thought that the call was to an agent and that they were discussing shows. Det. Sgt. Brown also knew about Collins’ music career and he thought that Collins was speaking to a booking agent. Finally, D.C. Gajraj testified that he thought the call was with an agent who was being asked by Collins to renew a contract with a producer. The officers acknowledged that there was a plan to arrest Collins and execute a search warrant. They were interested in listening to interceptions of his calls in order to learn where he was located. Their plan included relaying information to surveillance officers who would then arrest Collins and execute the search warrant.

[52] I am satisfied that “Session 2677” was a privileged solicitor and client communication between Collins and his entertainment lawyer Eboue Reinbergs. The monitor Lindsay Hicks eventually made the right decision, after she had re-listened to the recording of the intercept and decided that Reinbergs was a lawyer. She properly classified the call as “privileged” in order to prevent any investigators from further accessing the recording. The issue on this Application is whether the failure by all five monitors and investigators in the “wire room”, to realize at some earlier point that it was a call between a lawyer and client, was a reasonable mistake. The “Terms and Conditions” in McMahon J.’s authorizations recognized that it may take a period of time before a monitor “reasonably believes” that a call is with a lawyer, at which point the monitor “must discontinue” interception of the call and prevent any “access” to the prior recording. In this regard, the s. 8 constitutional standard for compliance with minimization terms is whether the monitors and investigators “reasonably believed” that the call was not with a lawyer. See: R. v. Doroslovac, supra; R. v. Thompson et al, supra.

[53] I am satisfied that the interception of the call between Collins and his entertainment lawyer Reinbergs did not violate the execution conditions set out in para. 6 of the wiretap authorization. There are five significant circumstances that lead to this conclusion. First, the reference by Collins to “calling the lawyer right now” occurred in the first five or six seconds of the intercept. At this time, the phone was still ringing and the call to Reinbergs had not even started. In addition, Collins was speaking these words to someone in the background, he did not appear to be speaking directly into the phone, he spoke with a slight accent, and so the phrase referring to a “lawyer” was neither loud nor clear. This was the only express or explicit reference to the identity or status of the person being called and it was only Lindsay Hicks who would have been monitoring this early background part of the call. Her explanation, to the effect that she probably only heard Collins’ reference to “calling the lawyer” once she re-played the entire recording of the call, makes rational sense in the above circumstances.

[54] Second, the contents of the call do not infer that Reinbergs must be a lawyer. The call is brief, Reinbergs says very little, and the discussions about “contracts” and “shows” and “royalties” could have been with any number of professionals engaged in the music business. Third, there was no one monitor or investigator who listened to the entire call. The anomaly that occurred at 1:25:26 p.m., when a computer “failure” caused the intercept to “bounce” from one monitor (Hicks) to a second monitor (Creighton), meant that Hicks heard very little of the content of the call and Creighton heard none of the background conversation about a “lawyer” at the start of the call. The police investigators, who listened in at various points, heard even less. Fourth, the innocuous contents of the call had no significance to the offences that were under investigation in “Project Sunder”. There was no motive to improperly intercept this call in order to further some investigative purpose. As Ms. Hicks put it in her testimony, there was nothing in the call that would have assisted in a “take down” of Collins. Ms. Creighton went further and classified the call as “Non-relevant”. Fifth, I found the five witnesses who testified about the call to be credible. The most important witnesses, who were responsible for “minimizing”, were the two civilian monitors. They both struck me as honest and sincere, they understood the importance of solicitor and client privilege, they employed a number of useful techniques to assist them in identifying calls to lawyers, and Ms. Hicks ultimately made the correct classification of this call at 1:33:56 p.m. (just over nine minutes after the call began). The officers who testified all candidly acknowledged that they had an interest in monitoring Collins’ calls, in order to assist in his arrest, and they provided rational and credible explanations for why they did not believe this particular call was to a lawyer.

[55] For all these reasons, the interception of the call to Mr. Reinbergs did not violate the “Terms and Conditions” of McMahon J.’s authorizations relating to calls to lawyers. I am satisfied that the monitors and investigators did not “reasonably believe” that the call was to a lawyer, until Ms. Hicks took the time to re-play the recording and listen carefully to the background conversation in the first five or six seconds.

iii) The second impugned interception and whether it violated the “Terms and Conditions” of the authorizations

[56] The final impugned intercept is the call to Ms. Schofield’s cell phone on April 19, 2020, immediately after Collins had called the law firm and had apparently listened to the recorded message. This interception is factually complex. The main reason for this factual complexity is because the call was eventually re-classified from “Non-Relevant” to “Privileged” on May 20, 2020. This was a full month after the call was made on April 19, 2020. As a result of this belated re-classification, the call was sealed and could not be accessed without a Court Order. When Ms. Schofield applied for access to the interception and I so ordered, shortly before the hearing of the present Application, the recording that was produced by the officer in charge of the “wire room” was silent “dead air”. This means that there is no direct evidence that the call was ever intercepted, listened to, or recorded because the recording itself is silent. However, there is a substantial body of circumstantial evidence inferring that the call to Ms. Schofield’s cell phone was probably listened to, although the evidence is uncertain as to whether the call was ever recorded.

[57] This body of circumstantial evidence includes documentary evidence, testimony from the monitors and investigators who were involved with the call, and testimony from a technology “systems specialist” about the meta data related to the JSI audio file of the call. Much of this evidence has been summarized above and I will only repeat those parts of the evidence that are necessary to an understanding of the two main issues, namely: was the call “intercepted”, in the sense of listened to or recorded; and if it was “intercepted” in one of these two ways, was it “minimized” in a reasonably timely way.

[58] The context for this second impugned call, as set out above, is that Collins had been arrested on drug charges in Sudbury on Saturday night, April 18, 2020. The arresting officers had facilitated phone calls to Ms. Schofield’s law firm (where the officers must have listened to the voicemail recording) and then to Ms. Schofield’s cell phone, at about 11:20 p.m. on the night of the arrest. The further context is that Collins was released by the Sudbury officers and he appears to have proceeded to Manitoulin Island. The next day, Sunday, April 19, 2020, he called Ms. Schofield’s law firm number at 4:53:30 p.m. and he appears to have listened to the voice message (as recorded in “Session 14”, analyzed above). Ryan Fenech was the civilian monitor who listened to this recording for 46 seconds and then “minimized” it at 4:54:16 p.m. Fenech classified the call as “Privileged” at 4:57:34 p.m. Fenech then prepared a synopsis of the call at 4:57:36 p.m. which stated, “Automated Message for Kim Schofield and Associates, Counsel Call – Minimized.” Fenech testified that he realized from the recorded message that Collins was placing a call to his lawyer “Kim Schofield”, even though he did not know of Ms. Schofield. It was the references in the voice message to “arrest calls” and “bail hearings” that led Fenech to conclude that the call was to a lawyer’s office.

[59] Fenech testified that once he realized that a named target had called his lawyer, he would advise the lead monitor/supervisor so that she could “alarm” that phone number in the JSI system. He did not recall doing this but he testified that it was “common practice”. He was also familiar with the practice of putting the phone numbers of lawyers called on a white board in the “wire room”, but he could not recall whether this was done in the case of Ms. Schofield’s number. He agreed that it was “common practice”, and that the monitors were trained to advise the lead monitor/supervisor when a lawyer was called so that the lawyer’s phone number would be placed on the white board until the JSI software could be programmed with the number “alarmed”.

[60] Det. Plunkett was one of the three senior officers in charge of “Project Sunder”. He described how the “wire room” operated, with a Detective or senior officer supervising the investigators and making sure that relevant developments in the investigation were being monitored by the investigators. Det. Plunkett testified that the arrest of the Applicant Collins in Sudbury had been planned and that he was aware of it when he was working on the Saturday night, April 18, 2020. He also agreed that he would have known that the arresting officers in Sudbury would advise Collins of his s. 10(b) Charter right to counsel upon arrest. Det. Plunkett noted that the O.P.P. liaison officer with “Project Sunder”, Det. Sgt. Brown, was “monitoring” the matter. It is an agreed fact that the arresting officers in Sudbury did not provide the “Project Sunder” investigators in Toronto with the name and phone number of the lawyer who Collins called upon his arrest. However, Det. Plunkett agreed that the phone number that Collins called when exercising his right to counsel at the time of the planned arrest in Sudbury, should have been “alarmed”. Since the arrest took place on a Saturday, and the lead monitor/supervisor Ms. Paquin only worked Monday to Friday, the lawyer’s phone number could not be “alarmed” until Monday at the earliest. As summarized above, Ms. Schofield’s office number was never “alarmed” and her personal cell phone number was only “alarmed” a month after the April 19, 2020 call. There was no explanation from Mr. Fenech, Det. Sgt. Brown, Ms. Paquin, or Det. Plunkett for these apparent failings.

[61] The “Session History” document relating to Collins’ call to Ms. Schofield’s cell phone on Sunday, April 19, 2020 is important. It shows that the call started at 4:54:25 p.m. and that Madeline Conroy was the monitor. The call is referred to as “Session 15” and it lasted for 1 minute and 52 seconds, that is, until 1:56:17 p.m. The 4:54:25 p.m. start time and 1:56:17 p.m. end time for “Session 15” are significant because the previous call to Ms. Schofield’s law firm (“Session 14”) had been “minimized” by Fenech at 4:54:16 p.m., when the voice message recording at the law firm was about to end. The JSI computer system continued to receive basic call information but did not record the “Session 14” call to the law firm, after it was “minimized”. Collins apparently ended this first “Session 14” call at 4:56:17 p.m. (the call information in the JSI system shows that the call to the law firm lasted for 2 minutes and 47 seconds, that is, from 4:54:30 p.m. to 4:56:17 p.m., and that Fenech stopped monitoring this call information at 4:56:18 p.m., immediately after Collins ended the call).

[62] This somewhat complex call history for both of these calls infers the following: first, that Collins placed the “Session 15” call to Ms. Schofield’s cell phone nine seconds after Fenech had “minimized” the “Session 14” call to Ms. Schofield’s law firm; second, that Collins did not immediately end the call to the law firm’s voicemail but rather continued this “Session 14” call at the same time as he placed the new “Session 15” call to Ms. Schofield’s cell phone; and third, that the two calls were ongoing at the same time until they both ended simultaneously at 4:56:17 p.m. This history of the two calls makes some sense because Collins may not have ended his first call to the law firm, after getting voicemail, in case someone at the law firm picked it up or in case Ms. Schofield did not pick up the call to her cell phone on a Sunday. The fact that Collins had both calls ongoing on his cell phone at the same time, with one call on hold, may also help to explain why there is no recording of the second call. However, I cannot reach any conclusions on this latter point.

[63] In any event, it is significant that both “Session 14” and “Session 15” were being monitored simultaneously in the JSI computer system from 4:54:25 p.m. until 4:56:17 p.m., when both calls ended. It is even more significant that the first call to the law firm was “minimized” by Fenech at 4:54:16 p.m. and that he began listening in to the second call to Ms. Schofield’s cell phone 44 seconds later, at 4:55 p.m. He listened to this call for 15 seconds, until 4:55:15 p.m. Sixteen seconds later, at 4:55:31 p.m., Fenech again listened into the call to Ms. Schofield’s cell phone for another nine seconds until 4:55:40 p.m. when he stopped listening. Twenty-five seconds later, at 4:56:05 p.m., Conroy “minimized” the call. In other words, Conroy appears to have listened to the call to Ms. Schofield’s cell phone from 4:54:25 p.m. to 4:56:05 p.m., that is, for 1 minute and 40 seconds. This was almost the entire call except for the last 12 seconds, before the call ended at 4:56:17 p.m. Significantly, Conroy classified the call as “Non-Relevant” at 4:56:50 p.m., some 45 seconds after she had “minimized” the call.

[64] Conroy and Fenech both testified in an effort to explain the above call history. Their testimony was important. Conroy had no recollection of the “Session 15” call. Needless to say, listening to the silent “dead air” recording did not assist in refreshing her memory. However, her testimony relating to the documentary evidence was significant. The “Session History” document showed that she “minimized” the call after monitoring it for 1 minute and 40 seconds. The “Session Details” document showed that her “Synopsis” of the call simply stated, “Minimized”. Ms. Conroy testified that there were only two reasons to “minimize” a call, namely, because the parties were not named targets or because one of the parties was a lawyer. The first reason had no application because Ms. Conroy knew that Collins was a party to the call and he was a named target. As for the second reason, Ms. Conroy agreed that the subscriber information for Ms. Schofield’s cell phone was not known to her at the time of the call. Finally, Ms. Conroy agreed that if the call was silent “dead air” she would not have written “minimized” in the “synopsis”. Rather, she would have stated in the “synopsis” that the call was “non-relevant” and she could have noted that it was silent “dead air”. She had rarely heard of “dead air” calls being received in the “wire room” and she had no recollection of ever receiving one herself. In light of the above circumstances, Conroy had no explanation for why she “minimized” this call to Ms. Schofield’s cell phone. Conroy testified that she would have been briefed about Collins’ arrest the previous day, on drug charges, and she would have been told to listen for Collins discussing this topic.

[65] Fenech testified that he was not the primary monitor on the “Session 15” call to Ms. Schofield’s personal cell phone. He was the primary monitor on the “Session 14” call to Ms. Schofield’s law firm. After he had “minimized” the “Session 14” call, he listened in to the “Session 15” call on two occasions. He explained, during examination in-chief, that he may have listened in to the “Session 15” call in order to determine if it was the same two parties on the two calls. In cross-examination, he agreed that he appeared to be “spot auditing” the call as he listened in on two separate occasions. He explained that this is a “common practice”, when one monitor asks another monitor for help with a “privileged” call. He also agreed that it appears he listened to the call because it was eventually “minimized”, after he had twice listened in, and “you wouldn’t minimize blank air”.

[66] As summarized above, three police investigators also listened in to “Session 15”. They all testified. Sgt. Mildenberger was the senior investigator in the “wire room” at the time when this call came in on a Sunday afternoon. He agreed that he would have been briefed about Collins’ arrest the previous night in Sudbury, although he had no memory of this. He also had no memory of the “Session 15” call from Collins to Ms. Schofield’s cell phone, although he acknowledged knowing Ms. Schofield. The “Session History” document shows that Sgt. Mildenberger listened in to the call for 21 seconds, from 3:55:02 p.m. until 3:55:23 p.m., before the call was “minimized” by Conroy at 3:56:05 p.m. After the call concluded and Conroy had prepared her “Synopsis”, Sgt. Mildenberger carried out the investigator’s administrative tasks relating to this call. The “Session History” document shows that he did the following between 5:14:09 p.m. and 5:14:43 p.m.: “access content” and “played audio segment #1”; “create document” in relation to “investigator’s comments”; and “session edit… reviewed by investigator…”. In examination-in-chief, Sgt. Mildenberger testified that he had listened to the recording of the call recently and there was no audio. At the start of cross-examination, he testified confidently that he believed there was always no audio of the call, even though he had no recollection of the call. Later in cross-examination, when explaining the above administrative tasks that he performed after listening to the call, he testified that the “investigator’s comments” that he would have entered, if there was no audio, would have been something to the effect of “N.R.” or “non-relevant” or “nothing”. Similarly, he testified that the monitor’s “synopsis” would have stated “no audio”. When the “Session Details” document was put to Sgt. Mildenberger, he agreed that the monitor’s “synopsis” stated “minimized” and his own “investigator’s comments” simply had his badge number and no comments. Sgt. Mildenberger also agreed that there was nothing in the “Session History” document that indicated that the audio of this call was blank or silent.

[67] The only other “Sunder” investigator who listened to the audio file of the “Session 15” call on April 19, 2020 was Det. Cst. Belza. He had no recollection of doing this at 11:26:40 p.m. that night, as recorded in the “Session History” document. However, he agreed that the JSI entries with his badge number – “Access Content” and “Play Audio Segment #1” – tend to suggest that he listened to it. He had no recollection of Collins’ arrest the night before and no explanation for why he apparently listened to the audio file of the call late on the Sunday night after Collins’ arrest.

[68] The last “Project Sunder” officer involved with this “Session 15” call was Det. Cst. Murray. His testimony is important because he reviewed the call a month later, on May 20, 2020, and changed its classification from “Non-Relevant” to “Privileged”. He testified that one of his roles was to audit calls marked “Non-Relevant”, as this classification can sometimes be made erroneously. The JSI “Session History” document showed that at 6:45:45 p.m. on May 20, 2020, Det. Cst. Murray did the following: “Access Content” and “Played Audio Segment #1”. Almost three minutes later, at 6:48:34 p.m. to 6:48:35 p.m., he did the following: “Session Edit” and “Reviewed by Investigator” and “Classification = Privileged”. Det. Cst. Murray agreed that these entries indicated that he listened to the audio of the call but he could not say how long he had listened to it. It could have been very brief. He knew Ms. Schofield from earlier cases, and he would either have noticed the subscriber information for the call and saw that it was Ms. Schofield, or he would have concluded from the contents of the call that it was a lawyer. As set out above at para. 27, Ms. Schofield’s subscriber information had been entered in the JSI system on April 20, 2020 so it would have been available to Det. Cst. Murray when he accessed the JSI audio file on May 20, 2020. As a result of taking one or more of the above steps, Det. Cst. Murray re-classified the call as “Privileged”. Most importantly, Det. Cst. Murray testified that if the audio recording of the call was silent “dead air”, he would expect the monitor to have stated “no audio” in the “synopsis” of the call. He would also have expected the “investigator’s comments” to state “not relevant”. He would still have classified the call as “privileged” because it was a call to a lawyer. Finally, Det. Cst. Murray agreed that there were a lot of entries in the “Session History” document and that the call was eventually “minimized”, all of which tended to indicate that the call was being listened to. He agreed that you would not “minimize” a silent “dead air” call.

[69] The Crown asked a technology “systems specialist” at the Intelligence Services Unit of the Toronto Police, P.C. Angus, to examine the silent “dead air” audio file related to “Session 15”. His evidence is technical but his main conclusions were as follows: first, the meta data relating to the two calls (“Session 14” and “Session 15”) indicated that they took place simultaneously on Collins’ phone; second, the meta data indicated that the audio file for “Session 15” had not been altered at any time; and third, the JSI software report will indicate “played audio” even when a user simply “opens” the audio file. In relation to his first conclusion, P.C. Angus testified that Android devices can start one call, put it on hold, start a second call, have the two calls run simultaneously, and then end both calls at the same time. P.C. Angus’ analysis of the meta data from the two calls (set out in detail in Exhibit 66) indicated that this is what Collins did when he placed the two calls on April 19, 2020. The meta data indicated that the second call – to Ms. Schofield’s cell phone – was answered by the recipient of the call at 4:54:49 p.m. and it continued until 4:56:17 p.m. In other words, both the JSI “Session History” and the meta data analysis by P.C. Angus indicated that the “Session 15” call to Ms. Schofield’s cell phone was a completed call that continued for over a minute.

[70] In relation to his second conclusion, P.C. Angus’ analysis of the meta data stored on the police server indicated that the data related to the audio files of both “Session 14 and Session 15” had not been changed. There is a digital signature on these files and it will indicate “signatures not valid” if the data has been altered (see Exhibit 67A and B). This evidence is significant, in my view, in relation to whether the JSI system ever recorded the “Session 15” call to Ms. Schofield’s cell phone or whether it was ever erased.

[71] In relation to his third conclusion, P.C. Angus experimented with the JSI software by simply “entering” Session 14, without actually “playing” the audio file. The resulting print-out of the “Session History” document, nevertheless, indicated the following: “Access Locked Content” and “Play locked session audio” (see Exhibit 68).

[72] In my view, the totality of the above circumstantial evidence infers, on a balance of probabilities, that the two monitors and Sgt. Mildenberger listened to the call that Collins placed to Ms. Schofield’s cell phone on April 19, 2020 and they failed to “minimize” it in a reasonably timely way. I am suspicious that there may have been an audio recording of the call at some point but, in light of P.C. Angus’ evidence, I cannot be satisfied that any such recording of the call has been proved on a balance of probabilities.

[73] The above conclusion – that Conroy, Fenech, and Mildenberger listened to and failed to reasonably “minimize” the “Session 15” call – is based on the following nine circumstances:

• First, there was a great deal of activity relating to this call and it is all recorded on the JSI “Session History”. Two monitors and three police investigators performed various activities relating to the call. As Det. Cst. Murray put it, all of this activity tends to suggest that the call was being listened to;

• Second, and more importantly, the call was “minimized”. Both Det. Cst. Murray and Fenech agreed that a silent “dead air” call would not be “minimized”. There were only two reasons why Conroy would “minimize” the call and one of those reasons (a call that did not involve one of the named targets) clearly did not apply. Conroy must have realized that it was a call to a lawyer. This is the only explanation for “minimizing” the call. She did not have subscriber information relating to the cell phone number that Collins had called and she did not know Ms. Schofield. She must have concluded that it was a call to a lawyer after listening to its contents;

• Third, Fenech knew from listening to the “Session 14” call that Collins was trying to reach his lawyer. Fenech also knew that Collins had listened to the law firm’s voicemail recording and that the recording instructed Collins how to “contact Kim Schofield directly.” Fenech “minimized” this “Session 14” call and must have seen that Collins had almost immediately placed a second call (“Session 15”), which Fenech then began to “spot monitor”. It is a reasonably probable inference from these circumstances that Fenech realized “Session 15” was Collins’ attempt to contact Ms. Schofield directly;

• Fourth, Conroy “minimized” the call 25 seconds after Fenech completed his second “spot monitor” of the call. It is a reasonably probable inference, given the common practice in the “wire room” when a call to a lawyer was suspected, that Fenech and Conroy conferred and agreed that Collins was calling his lawyer;

• Fifth, the “Session Details” are inconsistent with the call being silent “dead air”. Conroy, Mildenberger, and Murray all agreed that the “synopsis” would have indicated in some fashion that there was no audio and that the intercept was “non-relevant”, if the call was simply “dead air”. The “investigator’s comments” would also have reflected this fact. Neither the “synopsis” nor the “investigator’s comments” suggest that the call was silent “dead air”;

• Sixth, it is apparent that Collins’ arrest the night before in Sudbury would have been the subject of a briefing on the following day. As a result, Collins’ phone calls were admittedly of interest to the monitors and investigators;

• Seventh, the witnesses Fenech, Conroy, and Mildenberger were not credible or reliable. They had little or no actual memory and they were overly influenced by the present lack of any audio recording of the call. In addition, the documentary evidence tended to contradict certain aspects of their evidence. Fenech and Conroy were both inexperienced and uncertain. Mildenberger was rigid and it was his account, in particular, that was contradicted by the documents. For all these reasons, I found that all three witnesses lacked either credibility or reliability or both;

• Eighth, Det. Plunkett and Det. Cst. Murray both agreed that the phone numbers of counsel called by Collins at the time of his arrest on April 18, 2020 in Sudbury should have been “alarmed” or placed on the white board, so that the monitors would be alerted on April 19, 2020 to the likelihood of Collins trying to reach his lawyer. Collins’ arrest in Sudbury had been planned by the “Sunder” investigators and these preventative steps should have been taken. In addition, the apparent failures of Fenech, Conroy, and Mildenberger to make sure that Ms. Schofield’s two phone numbers were placed on the white board and then “alarmed” in a timely way, after the April 19, 2020 calls, is completely unexplained;

• Ninth, it is an agreed fact between the parties that the Applicant did make this completed call to Ms. Schofield’s cell phone on April 19, 2020 and that “issues related to this case were discussed between Mr. Collins and Ms. Schofield” (see Exhibit 74). In all these circumstances, it should have quickly been apparent that the call was to a lawyer.

[74] Based on the above nine circumstances, viewed in their totality, I am satisfied that Collins’ phone call to Ms. Schofield’s cell phone on April 19, 2020 was “intercepted” in the sense that it was “listened to”: see s. 183 of the Criminal Code. I am also satisfied that the call was a privileged communication between solicitor and client. Finally, I am satisfied that the interception of this call violated para. 6(b) of McMahon J.’s authorization because it was not “minimized” in a reasonably timely way. When planning Collins’ arrest in Sudbury and learning of his release, the “Sunder” investigators should have obtained the number of the lawyer who he phoned and should have advised the monitors in the “wire room” that Collins would probably be calling this number. In addition, Fenech should have immediately alerted the other monitors that Collins was trying to reach his lawyer, after he “minimized” the “Session 14” call. If either of these steps had been taken, the “Session 15” call would have been “minimized” in a reasonably timely way, long before Conroy had listened to almost the entire call.

[75] In light of the above findings, there was a violation of Collins’ s. 8 Charter rights because this one interception was not lawful.

iv) The appropriate remedy pursuant to the common law, or ss. 24(1) or 24(2) of the Charter

[76] The Applicant Collins sought one of three alternate remedies in the written argument in his Factum, namely: a stay of proceedings on the basis of abuse of process, pursuant to the common law or the Charter; exclusion of evidence pursuant to s. 24(2) of the Charter; or exclusion of evidence pursuant to s. 24(1) of the Charter. At the end of this lengthy s. 8 Application, during counsel’s closing oral argument, Ms. Schofield made little or no submissions in relation to the first two remedies, although she clearly did not abandon them. Her almost exclusive focus was on the third remedy. I will address the first two remedies briefly, as they are relatively straight forward. The third remedy is more complex and it is also more likely to lead to some “appropriate and just” remedy.

[77] The Applicant submits that the breach of his s. 8 rights in this case was so serious that it rose to the level of an abuse of process and justifies a stay of all proceedings. I will analyze the gravity of the s. 8 violation in more detail below, when I come to s. 24(2) of the Charter and the first set of Grant factors. For purposes of abuse of process and the remedy of a stay, there is no suggestion that the unlawful police “interception” of one phone call – “Session 15” – had any impact on Collins’ fair trial interests. There is no evidence that the police used the intercept in any way or that it led to any negative fair trial effects relating to Collins. There is no recording of this intercept, and it will not be referred to or used in any way at trial. It was classified as “privileged” by Det. Cst. Murray a month after the interception and so any access to it was curtailed. As a result, the Applicant does not rely on the main “trial fairness” category of abuse of process and relies entirely on the “residual category”. The definition of this branch of the doctrine was authoritatively described in the following terms in R. v. Babos and Piccirilli (2014), 2014 SCC 16, 308 C.C.C. (3d) 445 at paras. 30-31, 35-36, and 39 (S.C.C.):

A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.

Nonetheless, this Court has recognized that there are rare occasions —the “clearest of cases” — when a stay of proceedings for an abuse of process will be warranted (R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, at para. 68). These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category) (O’Connor, at para. 73). The impugned conduct in this case does not implicate the main category. Rather, it falls squarely within the latter category.

... when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justice system condones conduct that offends society’s sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met.

In Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 322 (SCC), [1997] 3 S.C.R. 391, this Court described the residual category in the following way:

For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society’s sense of justice. Ordinarily, the latter condition will not be met unless the former is as well — society will not take umbrage at the carrying forward of a prosecution unless it is likely that some form of misconduct will continue. There may be exceptional cases in which the past misconduct is so egregious that the mere fact of going forward in the light of it will be offensive. But such cases should be relatively very rare. [para. 91]

At the second stage of the test, the question is whether any other remedy short of a stay is capable of redressing the prejudice. Different remedies may apply depending on whether the prejudice relates to the accused’s right to a fair trial (the main category) or whether it relates to the integrity of the justice system (the residual category). Where the concern is trial fairness, the focus is on restoring an accused’s right to a fair trial. Here, procedural remedies, such as ordering a new trial, are more likely to address the prejudice of ongoing unfairness. Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward. [Emphasis of Moldaver J. in the original].

[78] Beginning with the first branch of the “residual category” test, it was submitted in the Applicant’s Factum that the requisite prejudice to “the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial” (see R. v. Babos, supra para. 32, citing R. v. Regan (2002), 2002 SCC 12, 161 C.C.C. (3d) 97 at para. 54 (S.C.C.)) was satisfied because the “Sunder investigators have demonstrated a pattern of Charter non-compliance that impacted not just the Applicant but others in the investigation.” This alleged “pattern” was two-fold: first, there was the repetition of three impugned intercepts of Collins’ own calls to his lawyers; and second, there were a number of interceptions of another “Project Sunder” accused (one Dorion Hall-Bailey) when he placed calls to his lawyer in October 2020. Neither of these two bases supporting an alleged “pattern” of violating the para. 6 authorization terms relating to solicitor and client privilege have been made out. I have found that only one interception of Collins’ calls to his lawyers violated the terms of the authorization. In relation to Hall-Bailey, his case was resolved in the Ontario Court of Justice. He has not been indicted in this Court and he was not one of the 50 “Project Sunder” accused who have been appearing before me on this ongoing s. 8 Application. Most importantly, I do not have an evidentiary record that would allow me to make findings about the impugned interceptions of his calls to his lawyers. There was no evidence from any of the police monitors or investigators who were involved in those interceptions. In addition, there is no finding from the Ontario Court of Justice proceedings relating to Hall-Bailey that has been put before me, and it appears that there were no findings made in relation to this solicitor and client privilege issue.

[79] In the above summarized circumstances, the record before me of the one unlawful “Session 15” interception does not begin to rise to the level of “egregious” misconduct that “will be manifested, perpetrated, or aggravated” as a result of proceeding to trial. In Babos, Tobiass, and Regan, the misconduct was far more serious and in all three cases the “residual category” test was not met. In addition, the second requirement – “There must be no alternative remedy capable of redressing the prejudice” (see Babos at para. 32) – is also not met. As will be seen below, when addressing s. 24(1) remedies, there are more tailored and proportionate remedies that are available in this case. Also see R. v. Bruce Power Inc. et al (2009), 2009 ONCA 573, 245 C.C.C. (3d) 315 at paras. 58 and 67 (Ont. C.A.).

[80] For all these reasons, a stay of proceedings on the basis of abuse of process is not an appropriate remedy in this case.

[81] The second alternative remedy sought by the Applicant is exclusion of evidence pursuant to s. 24(2) of the Charter. The particular evidence that the Applicant seeks to exclude is important, when applying s. 24(2). Ms. Schofield’s primary position was that three sets of wiretap interceptions relating to Collins should be excluded, whether pursuant to ss. 24(1) or 24(2). She submitted that the one s. 8 violation was related to the ongoing wiretapping of Collins in the “Sunder” investigation and so the remedy should also relate to the wiretaps. The three specific sets of wiretaps to be excluded are as follows:

• First, all interceptions on Collins 4952 number. This is the phone number that Collins was using at the time of the solicitor and client “Session 15” intercept on April 19, 2020. The “Sunder” investigators made 2956 interceptions on this line. Those interceptions provide important evidence relating to Collins’ alleged cocaine trafficking on Manitoulin Island in March and April 2020, to his alleged possession for the purpose of trafficking of the cocaine and oxycodone seized incident to arrest in Sudbury on April 18, 2020, and to his alleged possession of a loaded Ruger handgun and cocaine for the purpose of trafficking seized in the Toronto area pursuant to a search warrant on September 9, 2020;

• Second, all interceptions on Collins’ 3892 number. This phone number was not used to make any of the impugned solicitor and client interceptions. The “Sunder” investigators made 1821 interceptions on this line. These interceptions also provide important evidence relating to the above matters; and

• Third, one interception on the line of Gina Awad on March 20, 2020. Awad was another named target in the “Sunder” wiretap authorization. Awad has nothing to do with the unlawful “Session 15” interception. In the one interception on Awad’s line that the Applicant seeks to exclude, Collins and Awad discussed Collins’ anticipated trip to Manitoulin Island and drug trafficking, and Collins made reference to “my gun”. This intercept provided part of the grounds for Collins’ arrest in Sudbury on April 18, 2020 and part of the grounds for the September 9, 2020 search warrant relating to the gun.

[82] If the above three sets of wiretaps are not excluded, Ms. Schofield’s secondary position was that the drugs seized incident to arrest in Sudbury on April 18, 2020 ought to be excluded. It was submitted that the planned arrest of Collins in Sudbury on April 18, 2020 was the root cause of the violation of solicitor and client privilege the next day, when “Session 15” was intercepted. Ms. Schofield forcefully submitted that the “Sunder” investigators should have proactively arranged to “alarm” the telephone line or lines that Collins called at the time of his arrest in Sudbury, which would have prevented the unlawful “Session 15” interception.

[83] The initial requirement, before s. 24(2) becomes engaged, is that the evidence that the Applicant seeks to exclude must be “obtained in a manner that infringed or denied” some Charter right. The Crown submits that the various bodies of evidence that the Applicant seeks to exclude, as summarized above, were not “obtained in a manner” that violated any Charter right. The only Charter violation emerging from the lengthy s. 8 litigation relating to “Project Sunder” is the “interception” of the one “Session 15” call on April 19, 2020. The Crown submits that all the evidence that the Applicant seeks to exclude was lawfully seized without any Charter violation.

[84] A “generous and broad approach” to this initial “obtained in a manner” s. 24(2) requirement has been developed in a long line of binding authority. These cases hold that the connection between the Charter violation and the evidence that the Applicant seeks to exclude “may be causal, temporal, or contextual, or any combination of these three connections.” These authorities also hold that “the entire chain of events” between the police and the accused should be examined, as long as the connection is not “too tenuous or too remote”. See R. v. Pino (2016), 2016 ONCA 389, 337 C.C.C. (3d) 402 at paras. 50-56 and 72 (Ont. C.A.), R. v. Boutros (2018), 2018 ONCA 375, 361 C.C.C. (3d) 240 at paras. 11-14 and 19-27 (Ont. C.A.), and R. v. Saeed, 2021 ONSC 5084 at paras. 69-83, where the leading authorities are discussed at length.

[85] I am satisfied that there is no causal connection between the one isolated Charter violation on April 19, 2020 and the large body of wiretap evidence and/or real evidence that the Applicant seeks to exclude. Indeed, much of this evidence was lawfully seized prior to the Charter violation. In addition, the one intercept obtained in violation of the Charter was not used in any manner, and it did not lead to or contribute to the seizing of any other evidence. This absence of any causal connection will become important, later in the s. 24(2) analysis, when considering the second set of Grant factors. However, at the preliminary “obtained in a manner” stage of analysis, the above authorities are clear that the absence of any causal connection is not determinative.

[86] I am also satisfied that the temporal connection between the April 19, 2020 Charter violation and many of the earlier and subsequent wiretaps is tenuous. However, some of the wiretaps surrounding Collins’ trip to Manitoulin Island and his arrest in Sudbury on April 18, 2020 have some temporal connection to the April 19, 2020 Charter violation, although it is not strong. Most importantly, there is a contextual connection between some of these wiretaps that led to the planned arrest of Collins in Sudbury on April 18, 2020 and the s. 8 violation that occurred the next day. As Ms. Schofield submitted, if the “Sunder” investigators had planned for the arrest in Sudbury and had also planned shortly after the arrest for compliance with para. 6 of the authorization by “alarming” the telephone number that Collins called when advised of his s. 10(b) Charter rights on arrest, the unlawful interception of his call to that same counsel on April 19, 2020 would never have occurred. The real evidence seized incident to arrest in Sudbury has a broadly similar contextual and temporal connection to the “Session 15” interception.

[87] It can be seen that at least some of the wiretaps and the seized drugs were related to the planned arrest in Sudbury. As a result, they are contextually and temporally connected to the Charter violation in this case. It is, therefore, necessary to proceed to the second stage of s. 24(2) analysis.

[88] That second stage of s. 24(2) analysis is based on the three sets of Grant factors, namely: the seriousness of the Charter-infringing state conduct; the impact of the violations on the accused’s Charter-protected interests; and society’s interest in the adjudication of the case on its merits. See R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.).

[89] The first set of Grant factors is not easy to assess on the particular facts of this case. On the one hand, any violation of wiretap terms relating to the protection of solicitor and client privilege during a police investigation is inherently serious. That is because solicitor and client privilege is a long-standing legal principle that is well-known to the police and that has repeatedly been held to be “fundamental to the judicial system” and “integral to our system of justice”. See R. v. McClure (2001), 2001 SCC 14, 151 C.C.C. (3d) 321 at paras. 2 and 4 (S.C.C.), Smith v. Jones (1999), 1999 674 (SCC), 132 C.C.C. (3d) 225 at paras. 45-50 (S.C.C.), and R. v. Bruce Power Inc., supra at paras. 42-47. The monitors and investigators who testified on the present Application all understood the importance of solicitor and client privilege and they understood that para. 6 of McMahon J.’s authorizations was designed to protect that privilege and it was, therefore, important. These considerations all infer that the violation was serious because it caused some degree of institutional harm, regardless of the apparent absence of any harms to Collins’ fair trial interests.

[90] On the other hand, the “Sunder” investigators requested inclusion of the para. 6 “minimization” terms in the authorizations. They proceeded to intercept 5004 of Collins’ communications between March 23 and September 9, 2020. In only one of these interceptions was there a violation of the para. 6 terms. All of the other 5003 interceptions were lawful and they were constitutionally compliant. In addition, Det. Cst. Murray did eventually classify the one unlawful interception as “privileged”, on May 20, 2020, thereby preventing any further access. I have made a finding that there was an “interception” on April 19, 2020, in the sense that two monitors and one police investigator appear to have listened to parts of the call. However, I was not satisfied that the JSI system ever recorded the call, and there is no recording of the call in existence at present. The violation of para. 6 occurred when the lead monitor on the call, Madeline Conroy, appears to have listened to the call for 1 minute and 40 seconds, before she “minimized” it. She has no present recollection of the call, or what caused her to “minimize” it after listening for a period of time. Because there is no present recording of the call, her memory could not be refreshed by listening to it. More importantly, I have no ability to assess the contents of the call in determining how apparent it should have been that the call was to a lawyer, or exactly when it should have become apparent. My determination that the police and the monitors should have realized that it was a call to a lawyer is based on all the surrounding circumstances, including the arrest in Sudbury on April 18, 2020 and Fenech’s monitoring of the previous “Session 14” call to Ms. Schofield’s office voicemail. In these circumstances, it is difficult to assess the degree of Ms. Conroy’s fault. Finally, there is no prior history of the Toronto Police “wire room” violating “minimization” terms relating to solicitor and client privilege. As I recall, none of the civilian monitors or their supervisor, Ms. Paquin, had ever testified in a court proceeding. Neither counsel nor I could find any prior precedent where this kind of Charter violation had occurred. Accordingly, my Reasons in the present case appear to be the first written judgment in Ontario relating to this issue. Some remedial steps have already been taken by the Toronto Police, as will be discussed below, and I can order additional remedial steps.

[91] In all the above circumstances, I am satisfied that the s. 8 violation in this case is in the mid-range of gravity. Accordingly, the first set of Grant factors favours exclusion of those wiretaps and/or the real evidence that was “obtained in a manner” that violated the Charter.

[92] In my view, the second set of Grant factors does not favour exclusion of the evidence. As summarized above, when discussing the remedy of a stay, the police did not use the “Session 15” intercept in any way. It did not assist the investigation and it did not lead to the discovery of any evidence. There is no recording of it, it was eventually classified as “privileged”, and there is no suggestion that it will be used or referred to in any way at trial. There is also no evidence as to any adverse impact that the intercept had on any of Collins’ Charter-protected interests. Finally, as noted above, there is no causal connection between the over 5000 lawful interceptions of Collins’ communications and the one isolated Charter violation. There is similarly no causal connection between the lawful seizure of drugs, incident to a lawful arrest in Sudbury on April 18, 2020, and the subsequent Charter violation on April 19, 2020. The connection is contextual and, to some extent, temporal. Jamal J. recently summarized the law relating to this latter consideration in R. v. Beaver, 2022 SCC 54 at para. 125:

First, and most importantly, Beaver’s decision to confess was not caused by the Charter breaches arising from his unlawful detention. In appropriate cases, the lack of a causal connection between the breaches and the obtaining of the impugned evidence may mitigate the impact of the breach on the accused’s Charter-protected interests (Grant, at para. 122; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 87; R. v. Rover, (2018), 2018 ONCA 745, 143 O.R. (3d) 135, at para. 43; R. v. Pileggi (2021), 2021 ONCA 4, 153 O.R. (3d) 561, at para. 120). As this Court explained in Grant, the strength of the causal connection between the Charter infringement and the impugned evidence plays “a useful role . . . in assessing the actual impact of the breach on the protected interests of the accused” (para. 122). Here, no such causal connection exists. The trial judge found that the Charter breaches arising from the unlawful detention “had little effect” on either appellant’s decision to confess (para. 247). As the trial judge explained, Beaver’s confession had nothing to do with the Charter breaches arising from the unlawful detention and everything to do with “the evidence that was beginning to unfold”, including, most importantly, Lambert’s videotaped confession (paras. 95 and 247). The lack of a causal connection between the Charter breaches and Beaver’s confession mitigates the actual impact of the breaches on his Charter-protected interests.

Also see: R. v. Keshavarz, 2022 ONCA 312 at para. 115.

[93] The third set of Grant factors strongly favours admission of the evidence. The wiretap intercepts and the seizures of drugs on arrest in Sudbury are reliable and important evidence. This evidence relates to serious drug trafficking on Manitoulin Island and a serious firearms offence in Toronto. The evidence that the Applicant seeks to exclude may be essential to the prosecution of some or all of these offences. The truth-seeking function of the criminal trial would clearly be better served by the admission of the evidence.

[94] Balancing the three sets of Grant factors, I am satisfied that admitting the evidence would not bring the administration of justice into disrepute. Indeed, excluding reliable and lawfully obtained evidence in a serious drug and firearms case, where one isolated Charter violation had little or no impact on the accused’s Charter-protected interests, would bring the administration of justice into disrepute. In my view, Ms. Schofield made a wise decision in not emphasizing s. 24(2) as the remedy of choice in this case.

[95] Turning to s. 24(1) of the Charter, this was the almost exclusive focus of Ms. Schofield’s closing argument. I agree that this is the most fruitful remedial avenue in this case, although it too has its difficulties. Ms. Schofield submitted that the same three sets of wiretap intercepts, summarized above, should be excluded pursuant to s. 24(1). In a careful and thoughtful argument, she submitted that this significant remedy was “appropriate and just” for a number of reasons. First, the violation of para. 6 of McMahon J.’s authorization was serious for a number reasons, including the institutional reasons that I have already set out above. Second, the arrest of Collins in Sudbury was planned, the police knew he would be given his s. 10(b) Charter rights, and the police should have also planned for compliance with para. 6 of the authorization by “alarming” the line or lines of the lawyer called by Collins (a point that Det. Cst. Murray essentially conceded in cross-examination, as will be set out below). Third, and perhaps most importantly, Ms. Schofield submitted that lesser remedies would have no effect whereas a strong remedy, like excluding the evidence, would send a message to the police and would, therefore, be effective.

[96] There are significant legal difficulties with seeking to exclude evidence pursuant to s. 24(1) of the Charter, in the circumstances of this case. In the early Charter case law, it was held that evidence could only be excluded pursuant to s. 24(2), and not s. 24(1). As LeDain J. explained in R. v. Therens (1985), 1985 29 (SCC), 18 C.C.C. (3d) 481 at pp. 488 and 508 (S.C.C.), speaking for the majority on this point (Estey J. concurred with this part of LeDain J.’s reasons so it represents the view of 6 members of the Court):

I am satisfied from the words of s. 24 that s. 24(2) was intended to be the sole basis for the exclusion of evidence because of an infringement or a denial of a right or freedom guaranteed by the Charter. It is clear, in my opinion, that in making explicit provision for the remedy of exclusion of evidence in s. 24(2), following the general terms of s. 24(1), the framers of the Charter intended that this particular remedy should be governed entirely by the terms of s. 24(2). It is not reasonable to ascribe to the framers of the Charter an intention that the courts should address two tests or standards on an application for the exclusion of evidence‑‑first, whether the admission of the evidence would bring the administration of justice into disrepute, and if not, secondly, whether its exclusion would nevertheless be appropriate and just in the circumstances. The inevitable result of this alternative test or remedy would be that s. 24(2) would become a dead letter. [Emphasis added].

Also see: R. v. Collins (1987), 1987 84 (SCC), 33 C.C.C. (3d) 1 at p. 13 (S.C.C.); R. v. Strachan (1988), 1988 25 (SCC), 46 C.C.C. (3d) 479 at p. 494 (S.C.C.).

[97] The Supreme Court later clarified that the above principle, limiting the remedy of exclusion of evidence to s. 24(2), only applied when the evidence had been “obtained in a manner” that violated the Charter. However, where the evidence had been “obtained in conformity with the Charter” but its “admission into evidence would itself violate the Charter” [emphasis added], then s. 24(1) was available as a remedial basis for excluding the evidence. In R. v. White (1999), 1999 689 (SCC), 135 C.C.C. (3d) 257 at paras. 85-89 (S.C.C.), the accused had provided statutorily compelled statements to the police in a motor vehicle homicide investigation. The compelled statements were lawfully obtained by the police under the B.C. provincial Motor Vehicle Act, where they had limited permissible uses. In White, the Crown sought to use them to assist in proving its case in a federal Criminal Code trial. The Court held that the admission of the statements at the criminal trial would violate the s. 7 Charter principle against self-incrimination and that they should be excluded pursuant to s. 24(1) of the Charter. Iacobucci J., speaking for the majority, explained this important development in the law relating to the Charter remedy of exclusion of evidence:

The Court in Therens was dealing with evidence that had been obtained in violation of the accused’s Charter rights. None of the members of the Court who wrote in Therens adverted to the possible exclusion of evidence obtained in conformity with the Charter but whose admission into evidence would itself violate the Charter. In my view, although there are statements in Therens to the effect that s. 24(2) is the only appropriate mechanism for the exclusion of evidence under the Charter, those statements should be understood in the specific context of the case, in which the lower court had found that there could be two separate tests for the exclusion of illegally obtained evidence under s. 24. Therens should not be seen as placing unnecessary limits on the power of a court to exclude evidence whose admission would render a trial unfair in contravention of one or more of the legal rights set out in the Charter.

The possibility that evidence may be excluded under s. 24(1) of the Charter where its admission into evidence in a criminal trial would violate s. 7 has been acknowledged by some members of the Court. In R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562, the issue was addressed by McLachlin J., speaking for herself and Major J. She referred to the common law power of judges to exclude evidence whose admission would adversely affect the fairness of an accused’s trial, and stated, at para. 42:

In addition to the common law exclusionary power, the Charter guarantees the right to a fair trial (s. 11(d)) and provides new remedies for breaches of the legal rights accorded to an accused person. Evidence obtained in breach of the Charter may only be excluded under s. 24(2): R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613. Evidence not obtained in breach of the Charter but the admission of which may undermine the right to a fair trial may be excluded under s. 24(1), which provides for “such remedy as the court considers appropriate and just in the circumstances” for Charter breaches. Section 24(1) applies to prospective breaches, although its wording refers to “infringe” and “deny” in the past tense: Operation Dismantle Inc. v. The Queen, 1985 74 (SCC), [1985] 1 S.C.R. 441. It follows that s. 24(1) permits a court to exclude evidence which has not been obtained in violation of the Charter, but which would render the trial unfair contrary to s. 11(d) of the Charter.

La Forest J., who wrote for the majority of the Court in Harrer, stated at p. 579 that there was “no need to resort to” s. 24(1) as the mechanism for the exclusion of evidence whose admission would violate the Charter. He held that such evidence could be excluded on the basis of the trial judge’s now constitutionally enshrined duty under s. 11(d) of the Charter to exercise his or her common law discretion in order to exclude evidence whose admission would render the trial unfair.

The possibility of excluding evidence under s. 24(1) of the Charter was addressed again more recently in Schreiber v. Canada (Attorney General), 1998 828 (SCC), [1998] 1 S.C.R. 841. In concurring reasons, Lamer C.J. stated, at para. 24, that evidence may be excluded under a combination of ss. 7 and 24(1) of the Charter where the use of such evidence would affect trial fairness. Lamer C.J. cited on this point the decisions of the Court in Harrer, supra, as well as R. v. Terry, 1996 199 (SCC), [1996] 2 S.C.R. 207, where the Court held that an accused may use ss. 7 and 11(d) of the Charter to obtain redress where the admission of evidence would violate the Charter. Speaking for the majority of the Court in Schreiber, L’Heureux-Dubé J. stated, at para. 35, that she agreed with the Chief Justice that s. 7 may apply to justify excluding evidence where it is necessary to preserve the fairness of the trial. L’Heureux-Dubé J. did not specifically advert to the possible role of s. 24(1).

Thus it may be seen that this Court has never affirmatively decided that s. 24(1) of the Charter may serve as the mechanism for the exclusion of evidence whose admission at trial would violate the Charter. In the present appeal, the parties and the courts below appear to have proceeded on the basis that s. 24(1) is the appropriate mechanism for exclusion of evidence whose admission would contravene the principle against self-incrimination under s. 7. None of the argument before this Court was directed to this specific issue.

Although I agree with the majority position in Harrer, supra, that it may not be necessary to use s. 24(1) in order to exclude evidence whose admission would render the trial unfair, I agree also with McLachlin J.’s finding in that case that s. 24(1) may appropriately be employed as a discrete source of a court’s power to exclude such evidence. In the present case, involving an accused who is entitled under s. 7 to use immunity in relation to certain compelled statements in subsequent criminal proceedings, exclusion of the evidence is required. Although the trial judge could have excluded the evidence pursuant to his common law duty to exclude evidence whose admission would render the trial unfair, he chose instead to exclude the evidence pursuant to s. 24(1) of the Charter. I agree that he was entitled to do so. [Italics of Iacobucci J. in the original].

[98] In the subsequent case of R. v. Bjelland (2009), 2009 SCC 38, 246 C.C.C. (3d) 129 at paras. 3, 16-19, 23-24, 28-30, and 39 (S.C.C.), the Court held that the remedy of exclusion of evidence pursuant to s. 24(1) was also available in a case where delayed disclosure was the alleged Charter violation. As in White, on the particular facts of Bjelland there was “no suggestion that the police in this case obtained the impugned evidence in breach of the Charter.” Accordingly, the remedy of exclusion of the evidence pursuant to s. 24(1) was potentially available. However, Rothstein J. gave the majority judgment and imposed two important limits on the s. 24(1) remedy of exclusion of evidence:

In my view, the trial judge committed a reviewable error by failing to consider whether the prejudice to the appellant could be remedied without excluding the evidence and the resulting distortion of the truth-seeking function of the criminal trial process. Under s. 24(1), where the evidence was obtained in conformity with the Charter, its exclusion is only available as a remedy where its admission would result in an unfair trial or would otherwise undermine the integrity of the justice system. In this case, the prejudice to the appellant’s right to make full answer and defence could be remedied through an adjournment and disclosure order and there was nothing that otherwise compromised the fairness of the trial process or the integrity of the justice system.

This appeal raises the issue of when the exclusion of evidence will be an appropriate remedy under s. 24(1) of the Charter for late disclosure by the Crown.

The remedy of exclusion of evidence will normally arise under s. 24(2) of the Charter. Section 24(2) applies to evidence obtained in a manner that infringes or denies a person the rights or freedoms granted by the Charter. But such evidence will only be excluded if its admission would bring the administration of justice into disrepute.

Remedies under s. 24(1) of the Charter are flexible and contextual: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at paras. 41, 52 and 54-56. They address the most varied situations. Different considerations may come into play in the search for a proper balance between competing interests.

Here, we are concerned with aspects of the conduct of a criminal trial and of the operation of the justice system, where the courts have to pass upon the guilt or innocence of an accused. While the exclusion of evidence will normally be a remedy under s. 24(2), it cannot be ruled out as a remedy under s. 24(1). However, such a remedy will only be available in those cases where a less intrusive remedy cannot be fashioned to safeguard the fairness of the trial process and the integrity of the justice system.

Apart from ensuring trial fairness, there is one other circumstance in which late disclosed evidence might be excluded. That is where to admit the evidence would compromise the integrity of the justice system.

Thus, a trial judge should only exclude evidence for late disclosure in exceptional cases: (a) where the late disclosure renders the trial process unfair and this unfairness cannot be remedied through an adjournment and disclosure order or (b) where exclusion is necessary to maintain the integrity of the justice system. Because the exclusion of evidence impacts on trial fairness from society’s perspective insofar as it impairs the truth-seeking function of trials, where a trial judge can fashion an appropriate remedy for late disclosure that does not deny procedural fairness to the accused and where admission of the evidence does not otherwise compromise the integrity of the justice system, it will not be appropriate and just to exclude evidence under s. 24(1).

There is no doubt that the late disclosure to the appellant in this case was prejudicial to his right to make full answer and defence. However, there is no suggestion that the police in this case obtained the impugned evidence in breach of the Charter. Section 24(1), and not s. 24(2), was therefore the appropriate remedial provision through which to remedy the prejudice to the appellant.

There was also no finding of deliberate Crown misconduct or any other reason to believe that the integrity of the justice system was compromised. In this case, on the motion before the trial judge, the Crown submitted that the impugned evidence was not disclosed to the appellant earlier because of concerns that to do so would imperil a witness and compromise an ongoing investigation. While the trial judge did not accept that the Crown’s concerns were well-founded in this case, he did not find that the Crown had engaged in deliberate misconduct. Rather, he stated clearly, “I do not suggest the Crown has been unethical or malicious.” There is no suggestion that the appellant was held in pre-trial custody.

The question is, having regard to the interest of society in a fair trial, whether the prejudice to the appellant could have been cured by an adjournment and disclosure order. The trial judge’s concern was that an adjournment would simply be a reward to the Crown for its late disclosure. However, the integrity of the justice system was not at issue. Therefore, the trial judge had only to consider whether an adjournment and disclosure order was an appropriate remedy to cure the actual prejudice to the appellant’s right to a fair trial. This the trial judge did not do.

By ordering exclusion of evidence, the trial judge did not impose an appropriate and just remedy when an adjournment and disclosure order would have sufficiently addressed the prejudice to the appellant while preserving society’s interest in a fair trial. I am of the respectful opinion that, in doing so, the trial judge misdirected himself. [Emphasis added].

Also see R. v. Spackman (2012), 2012 ONCA 905, 295 C.C.C. (3d) 177 at paras. 99-104 (Ont. C.A.), where the Court applied the principles that emerged from Bjelland relating to s. 24(1) exclusion of evidence.

[99] Applying the principles set out in the above line of authority, there are three significant legal difficulties to excluding evidence in this case pursuant to s. 24(1) of the Charter:

• First, I have made a finding that at least some of the evidence that the Applicant seeks to exclude meets the “generous and broad approach” to the s. 24(2) “obtained in a manner” requirement. Accordingly, the principle stated in Therens, Collins, and Strachan applies and s. 24(2) of the Charter is the only available route to exclusion of this particular body of evidence as a Charter remedy;

• Second, the remedy of s. 24(1) exclusion of evidence pursuant to the principles stated in White and in Harrer is also not available. There is no suggestion in the present case that “admission into evidence [of the wiretaps and real evidence] would itself violate the Charter” or that their “admission would render the trial unfair”. Rather, the remedy of exclusion of the wiretaps and/or the real evidence is sought as a strong denunciatory warning to the police, in order to persuade them to improve their wiretap practices in future cases; and

• Third, the principle that emerges from Bjelland and Spackman as a basis for s. 24(1) exclusion of evidence is also not available. In the present case, the remedy of exclusion of the wiretaps and/or the real evidence is not being sought in order to protect the fairness of the trial. Furthermore, exclusion of the evidence is not necessary to protect the integrity of the justice system, because effective lesser remedies are available. The appropriateness of these lesser remedies involves some discrete factual and legal issues, which will be addressed below.

[100] In addition to the above legal difficulties relating to the remedy of s. 24(1) exclusion of evidence in this case, there are also certain factual difficulties relating to the appropriateness of lesser remedies. Ms. Schofield submitted that a strong denunciatory remedy, namely, exclusion of large bodies of important and lawfully obtained evidence like the wiretaps and/or seized drugs, was necessary in this case. The premise for this submission, as I understood it, was two-fold: first, that the failure to take proactive preventative steps to ensure compliance with the para. 6 “minimization” terms was a systemic issue that had been around for some time; and that, in these circumstances, lesser remedies like a judicial denunciation or declaration concerning police practices would simply not be effective or appropriate.

[101] I cannot accept either of these premises for at least four reasons. First, there appears to have been no prior history of this kind of failure to comply with “minimization” terms relating to solicitor and client privilege. I am not aware of any reported case in Ontario where this issue has previously arisen, and counsel did not refer the Court to any such decision. Accordingly, there is no record before me that would suggest that these kinds of violations of the Charter have been around for some time. Second, I have made findings relating to my analysis of the first set of Grant factors, to the effect that the gravity of this particular violation was in the mid-range. I will not repeat the considerations that led to this conclusion. As a result of this finding, the single violation of the Charter that occurred in this case was not of the “egregious” variety that threatens the integrity of the justice system, as discussed in Bjelland. Third, some remedial steps have been taken by the Toronto Police, as a result of their experience with solicitor and client calls in large “project” cases like “Sunder”. Detective Plunkett testified and described the present post “Sunder” practice as follows: once the police confirm that a particular line being called is a lawyer, “we will actually block that line… there’ll be no interception of any information from that line… the line is blocked from actually getting content.” This change in the JSI system replaces the previous practice of “alarming” the lawyer’s line, which was not particularly effective in the present case. The new post “Sunder” practice of “blocking” the lawyer’s line also removes any discretion or responsibility from the monitors, to “minimize” any subsequent calls on that lawyer’s line. There was undoubtedly some unevenness in the skills and levels of experience of the civilian monitors who testified before me. The new post “Sunder” practice of “blocking” a known lawyer’s line is undoubtedly an improvement. In addition, Detective Plunkett testified that the “wire room” is now staffed by a lead clerk/supervisor like Ms. Paquin on weekends, and after hours, in order to implement this “blocking” of a lawyer’s line at any time. Fourth, there are additional remedial steps that should be taken and that I can order as a s. 24(1) Charter remedy. In other words, there are effective lesser remedies available, which I will discuss below, that are stronger and more effective than the judicial denunciation or declaration which the Crown advanced during submissions as one possible lesser remedy (and which Ms. Schofield criticized).

[102] I am satisfied that the post “Sunder” police reforms described above are helpful and responsive to some of the issues that arose in the present case. However, they are not sufficient to address all of the underlying or contributing causes of the violation of para. 6 that occurred in the present case. In this regard, Ms. Schofield conducted a particularly effective cross-examination of Det. Cst. Murray, about the planned arrest of Collins in Sudbury on April 18, 2020. Det. Cst. Murray agreed that he was aware of the arrest, given that it was based on grounds provided by the “Sunder” investigators. In addition, he was aware that Collins “would receive his right to counsel” on arrest. Det. Cst. Murray also agreed that the officers from the Sudbury Police Service who implemented Collins’ s. 10(b) Charter rights would have known the lawyer who Collins called that night. Finally, Det. Cst. Murray agreed that, with the benefit of “hindsight” it would be a “better idea” if the Toronto Police “going forward” were to arrange to call the arresting officers when an arrest is planned, and find out the name and phone number of the lawyer being called “and then [take] the extra steps of doing that ahead of time, of making sure that phone number specifically was alarmed. … we didn’t have the foresight to do that because it was never done. Going forward, I agree with you that it should be done and has to be done... yes, you are correct. This is going to get remediated.”

[103] In my view, an appropriate lesser remedy is to order the Toronto Police to take the proactive and preventative steps that Det. Cst. Murray agreed with, in his above-summarized testimony. There should be a practice and protocol put in place in the “wire room”, whenever there is a planned arrest of a named target, to find out the name and phone number of any lawyer called by the named target on arrest, and to have that line “blocked”. If these steps are taken, the violation of para. 6 that took place in the present case would never have occurred.

[104] In addition to making this mandatory Order, as a s. 24(1) Charter remedy, I am ordering the Crown to respond by reporting back in writing within 30 days of the release of these Reasons. The Crown’s responding report should be served on counsel for the Applicant and filed with the Court. It should attach the Toronto Police Service’s response to my Order in some kind of documentary form that is signed by a responsible officer. I will remain seized of the s. 24(1) Charter remedy in this case, until I receive the Crown’s responding report. In other words, I want to be satisfied that the remedy I have ordered is feasible and that it is being implemented in an effective way. The parties must appear before me, within 45 days of the release of these Reasons, to make any submissions as to the sufficiency of the Crown’s responding report. At that time, and after hearing submissions, I will decide whether any further and stronger s. 24(1) remedy is “appropriate and just”.

[105] I appreciate that the above s. 24(1) Charter remedy may seem somewhat novel. In my view, it is simply an injunction and “the power of courts to issue injunctions against the executive is central to s. 24(1) of the Charter which envisions more than declarations of rights. Courts do take actions to ensure that rights are enforced, and not merely declared”: Doucet-Boudreau v. Nova Scotia, 2003 SCC 62, [2003] 3 S.C.R. 3 at para. 70 per Iacobucci and Arbour JJ. for the majority. Also see Kent Roach, Constitutional Remedies in Canada, 2nd Edition, loose-leaf (Thomson Reuters, 2022) at s. 3:10, p. 3-45, where the learned author stated:

Preventing future violations of the Charter is an important purpose of many Charter rights, including equality rights and the right against unreasonable searches and seizures. In some cases, remedies such as declarations, injunctions, and delayed declarations of invalidity seem designed to change governmental behaviour.

[106] The main remedial objective sought by Ms. Schofield was to put an end to planned arrests of named targets in wiretap cases, unless there is planning at the same time for compliance with “minimization” terms related to solicitor and client privilege. In my view, this remedial goal is “appropriate and just” and it can be achieved by the lesser remedy that I have ordered. The “minimization” terms in the wiretap authorization were imposed by judicial order in the first place, and ensuring compliance with those terms is equally a judicial responsibility. I am satisfied that the s. 8 violation in the present case requires an effective remedy. Although I have denied Ms. Schofield’s preferred s. 24(1) remedies of a stay of proceedings or exclusion of evidence, the lesser remedy that I have ordered should be effective in achieving the remedial goals that were sought in this case.

D. CONCLUSION

[107] For all the reasons set out above, I am of the view that the s. 24(1) remedy of exclusion of evidence sought by the Applicant is not “appropriate and just”. There are significant legal and factual impediments to this requested remedy, as explained above. Most importantly, I am satisfied that there is an appropriate and effective lesser remedy in the form of the mandatory Order that I have made. The Supreme Court in Bjelland and the Ontario Court of Appeal in Spackman have made it clear that exclusion of evidence “is only available as a remedy under s. 24(1) in those cases where a less intrusive remedy cannot be fashioned.” However, I need to be satisfied that the lesser remedy that I have “fashioned” can and will be implemented. Accordingly, I am not yet issuing a final decision in Collins’ s. 8 Charter Application, until I have received the Crown’s report in response to my Order, and until I have heard counsel’s submissions about that response. I will remain seized of the s. 24(1) remedy for the s. 8 violation in this case, until I am satisfied that the Order I have made is both feasible and effective.

[108] Counsel should obtain a date and a time from the Trial Coordinators when they are available in early April 2023, in order to appear before me and complete this Application.

M.A. CODE J.

Released: March 2, 2023

APPENDIX A

TERMS AND CONDITIONS

6. It is further ordered that:

a) No communications may be intercepted at the office or residence of a solicitor, or at any other place ordinarily used by solicitors for the purpose of consultations with clients; and

b) When a monitor reasonably believes that a solicitor is a party to a communication, intercepted at any place or over any device, the monitor must discontinue the interception. At reasonable intervals, the monitor may resume the interception for the purpose of determining whether the solicitor remains a party to the communication. When communications have been intercepted while on automatic monitoring, the monitor who subsequently reviews the communication must cease reviewing the communication as soon as the monitor reasonably believes that a solicitor is a party to the communication, but may monitor the communication by reviewing at reasonable intervals for the purpose of determining whether the solicitor remains a party to the communication. No person shall access any communication to which a solicitor is a party that is recorded pursuant to this authorization except as authorized by this Court.

Provided however that in the event that a communication or communications have been intercepted and to which access has been denied pursuant to this paragraph, and it is reasonably believed that a communication may not be subject to solicitor-client privilege, then the communication or communications may be submitted to this Court for an ex-parte determination whether access will be allowed to any of the communications.

c) With respect to any electronically transmitted communication such as text messages and emails, where the viewer initially determines that the communication involves a lawyer, he or she shall not read the communication, immediately close, segregate and seal the communication. No person shall access the sealed communication without an order of this Court in compliance with the following paragraph.

d) If a communication or document has been “intercepted” or obtained pursuant to paragraphs 11 (Mobile Phone Functions), 18 (General Warrant: Locations) or 20 (General Warrant: Mobile Phones), and a peace officer, or a person acting under the direction of a peace officer, reasonably believes that a solicitor is a party to the communication, the peace officer, or a person acting under the direction of a peace officer, must immediately cease reviewing the communication. The intercepted telecommunication must be sealed and no person shall access any telecommunication to which a solicitor is a party that is intercepted pursuant to this Authorization except as authorized by this Court.

Provided however that in the event that a communication or document has been intercepted or obtained and to which access has been denied pursuant to this paragraph and it is reasonably believed that a telecommunication may not be subject to solicitor-client privilege, then the telecommunication may be submitted to this Court for an ex-parte determination whether access will be allowed to any of the telecommunications.

COURT FILE NO.: CR-21-10000470-0000

DATE: 20230302

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

Respondent

– and –

CHRISTIAN COLLINS

Applicant

Reasons for judgement on A SECTION 8 cHARTER APPLICATION RELATING TO WIRETAP INTERCEPTION OF PRIVILEGED CALLS

M.A. CODE J.

Released: March 2, 2023