Court of appeal of Quebec - christopher-parsons.com · Court of appeal of Quebec . Montreal ....

500-10-006048-159

Court of appeal of Quebec

Montreal

Appeal from a judgment of the Superior Court, District of Laval, rendered on December 4, 2015 by the Honourable Michael Stober

No: (540-01-063428-141) HER MAJESTY THE QUEEN APPELLANT - prosecutrix v. VITTORIO MIRARCHI CALOGERO MILIOTO STEVEN FRACAS FELICE RACANIELLO JACK SIMPSON PIETRO MAGISTRALE STEVEN D’ADDARIO RESPONDENTS - accused

APPELLANT'S FACTUM

VOLUME XII – SCHEDULE III - DEPOSITIONS

Page 3987 to 4182

Me Robert Rouleau Me Alexis Gauthier Me Marie-Christine Godbout Complexe Guy-Favreau, Tour est Bureau de la grande criminalité et des 200, boul. René-Lévesque ouest, affaires spéciales 9ième étage 393, rue St-Jacques, Bureau 600 Montréal (Québec) H2Z 1X4 Montréal (Québec) H2Y 1B9 Telephone number: 514-873-3922 Telephone number: 514 283-3826 Fax number: 514-864-0847 Fax number: 514 496-7372 [email protected] [email protected] [email protected] Appellant Appellant

mailto:[email protected]�



500-10-006048-159

Court of appeal of Quebec

Montreal

Appeal from a judgment of the Superior Court, District of Laval, rendered on December 4, 2015 by the Honourable Michael Stober

No: (540-01-063428-141) Me Frank Addario and Me William Thompson Addario Law Group 171 John Street Suite 101 Toronto (Ontario) M5T 1X3 Telephone: (416) 649-5055 Fax: (866) 714-1196

Me Michael W. Lacy and Me Maxime Hébrard Brauti Thorning Zibarras LLP 151 Yonge Street ,Suite 1800 Toronto, (Ontario) M5C 2W7 Telephone : (416) 360-2776 x5546 Telephone 514-868-9090 Fax : (416) 362-8410

Me Dominique Shoofey 338, rue Saint-Antoine, bureau 300 Montréal (Québec) H2Y 1A3 Telephone: (514) 523-7676 Fax: (514) 866-2929

Me Bruce Engel 116 Lisgar Street, Suite 210 Ottawa (Ontario) K2P 0C2 Telephone: (613) 235-6324 Fax : (613) 235-3159

Me Jeffrey K. Boro Me Robert Polnicky Me Annie Émond Boro, Polnicky, Lighter 500, place D'Armes, # 2350 Montréal (Québec) H2Y 2W2 Telephone: (514) 288-0444 Fax: (514) 288-7772

Me Giuseppe Battista, Ad. E. et Me Mathieu Corbo Shadley, Battista, Costom, s.e.n.c. 1100, av. des Canadiens-de-Montréal Ouest 10e étage, boîtes 17 Montréal (Québec) H3B 2S2 Telephone: (514) 866-4043 poste 208 Fax: (514) 866-8719

Me Ronnie MacDonald Raby, Dubé, Leborgne, Rougeau 404, rue Saint-Dizier, Bureau A-06 Montréal (Québec) H2Y 3T3 Telephone: (514) 840-9119, poste 206 Fax : (514) 840-0177

Me François Dadour Poupart, Dadour, Touma et Associés 507 place D'Armes, Bureau 1700 Montréal (Québec) H2Y 2W8 Telephone: (514) 526-0861 Télécopieur: (514-526-9646

Me Anil Kapoor Kapoor Barristers 235 King Street East, 2nd Floor Toronto (Ontario) M5A 1J9 Telephone: (416) 363-2700 Fax: (416) 363-2787

i) TABLE OF CONTENTS

VOLUME PAGE

APPELLANT'S FACTUM

VOLUME I

PART I FACTS ........................................................................ I ................... 1 PART II ISSUES IN DISPUTE ................................................... I ................... 6 PARTIII ARGUMENTS .............................................................. I ................... 7

a. The finding of privilege and its corollary: the nature of the balancing exercise ................................................ .................... 8

b. The balancing exercise itself: relative use of the information and nature of the charges ..................................... .................. 19

PART IV CONCLUSIONS ........................................................... I ................. 29 PART V AUTHORITIES ............................................................. I ................. 30

SCHEDULE I – JUDGMENT APPEALED FROM R. v. Mirarchi & al, December 4, 2015, Michael Stober, J.S.C., 540-01-063428-141 (S.37 objection) ........................................................... I ................. 31 R. v. Mirarchi & al, November 18,2015, Michael Stober, J.S.C. 540-01-063428-141 (Common Law Judgement) ......................................... I ................. 54

SCHEDULE II – PROCEEDING AND REGULATORY PROCEEDINGS Appeal from an order of disclosure rendered by a Superior Court under s. 37 of the Canada Evidence Act and Notice of appeal.................................. I ............... 149 Direct Indictment .......................................................................................... I ............... 159 REGULATORY AND/OR LEGISLATIVE PROVISIONS Sections 37 to 37.3 Canada Evidence Act .................................................. I ................160

ii) TABLE OF CONTENTS

VOLUME PAGE

VOLUME II

SCHEDULE III EXHIBITS

R-25: Motion "Investigative privilege" (en liasse) .................................................... II ............. 165 R-25 C 1: Respondent’s Reply to the application for disclosure of information and annexes .............................................................................. II ............. 203 R-25 C 2 I: Document that identifies the individuals involued in the conversation ........................................................................................ II ............. 240 R-25,1: Agreement to a procedure for inspector Mark Flynn'sex parte testimony ..... II ............. 248 R-25,2: Joseph S. Wilkinson's affidavit (Motion for Special I Disclosure) .................. II ............. 251 R-25.3: Lettre datée du 25 août 2011 (RCMP) .......................................................... II ............. 257 R-25.4: Lettre datée du 12 septembre 2011 (RCMP) ................................................ II ............. 258 R-25.5: Lettre datée du 14 septembre 2011 (RCMP) ................................................ II ............. 259 R-25.6: Affidavit of Jason Morton dated the 16th June 2011 ..................................... II ............. 260 R-25,7: Pin to pin printout sent out Friday 26 August 2011 at 17:21 ......................... II ............. 271 R-25,8: Pin to pin HTLM printout sent out Thursday 14 July 2011 at 10:29 .............. II ............. 273 R-25,9: Communication security Establishment, Security of Blackberry Pin to Pin messaging, Document originally signed Toni Moffa Deputy chief IT security .............................................................. II .............280 R-25,10: Lettre de 2 pages de Me Lacy Michael datée le 18 novembre 2014 ............ II .............283

iii) TABLE OF CONTENTS

VOLUME PAGE R-25,11 Unredacted sealed transcript Mark Flynn ............... (Not reproduced in Appellant’s factum) R-25,12: First redacted copy of Inspector Flynn's ex parte testimony ......................... II .............285 R-25,12A: One page investigative Techniques motion (R-25) Redacted ex parte testimony of inspector Mark Flynn .................................................. II .............312 R-25,12B: Two page document entitled "Accused"s reponse to proposed judicial summary of redacted testimony" .................................................................. II .............313 R-25,13: Document de 27 pages updated redacted version of Inspector Flynn ex parte testimony - includes numbered questions ............................. II .............315 R-25,13A: 3 pages Recto-verso Judicial summary ........................................................ II .............342 R-25,14: Décision du juge Hélène Morin, JQC, #500-54-000074-105, 9 pages recto-verso “Authorization to intercept private communications”........................................................................................... II .............344 R-25,15: Document intitulé "Motion R-25: Investigative Techniques Privilege proposal order for the transmission of audio recordings and unredacted transcripts of ex parte hearings of the amicus curiae" .................................. II .............349 R-25,16: Agreed statment of facts on the chronology of disclosure for the purpose of motion R-25 .............................................................................................. II .............350 R-25,17: Affidavit de Patrick Boismenu daté le 25 novembre 2015, "Expertise Report, Projet Clemenza" and Curriculum vitae ........................................................ II .............354 R-25,18: Affidavit de "Alan William Treddenick" 25 novembre 2015 ........................... II .............376 R-25,19 I: Judgement rendered orally upon motions for disclosure of information upon which Crown is claiming investigative Techniques privilege (Not reproduced in Appellant’s factum official copy filed as “Common Law judgement) R-25,20: Parties joint position on relevance of S.37 CEA's new evidence .................. II .............378

iv) TABLE OF CONTENTS

VOLUME PAGE R-32 (En liasse) Applicant’s factum and application record in relation to MDI R v Mirarchi - Applicant's Factum. ................................................................ II .............379 R. v. Mirarchi et al. - Notice of Application for Disclosure of ........................ II .............399 Information to Obtain a General Warrant, dated December 17, 2010 ........................................................................... II .............495 Technical Report #2 authored by Sgt. Martin Dubois, undated ................... II .............524 Affidavit of Megan Savard ............................................................................ II .............563

VOLUME III

Ex A - 28HarvJLTech1 ................................................................................ III .............571 Ex C - A Lot More than a Pen Register ....................................................... III .............647 Ex E1 - Meet the machines that steal your phone's data _ Ars Technica .................................................................................... III .............685 Ex E2 - Meet the machines that steal your phone's data 2_ Ars Technica .................................................................................. III .............689 Ex F - Hacker Spoofs Cell Phone Tower to Intercept Calls _ WIRED ............................................................................................ III .............693 Ex G - We Must Secure America's Cell Networks From Criminals and Cops _ WIRED .................................................................... III .............698 Ex H - FBI's 'Stingray' Cellphone Tracker Stirs a Fight Over Search Warrants, Fourth Amendment - WSJ ..................................... III .............703 Ex I - How a Stingray Works - Washington Post ......................................... III .............709 Ex J - The covert cellphone tracking tech the RCMP and CSIS wont talk about - The Globe and Mail ................................................ III .............710 Ex K - Met police using surveillance system to monitor mobile phones _ UK news _ The Guardian ............................................................ III .............714 Ex L - imsi_catcher_update ........................................................................ III .............718 Ex M - Florida v Thomas - transcript ........................................................... III .............740 Ex N - 1440-S.SL - Washington State Law ................................................. III .............867 Ex P - KingFish Product Description ........................................................... III .............876 Ex P - StingRay Product Description .......................................................... III .............878

v) TABLE OF CONTENTS

VOLUME PAGE Ex Q - 3G UMTS IMSI Catcher _ PKI Electronic Intelligence GmbH Germany .......................................................................................... III .............880 Ex Q - GSM IMSI Catcher _ PKI Electronic Intelligence GmbH Germany........................................................................................... III .............881 R. v. Desjardins et al - Crown's reply to motions R-32 and 32A on the MDI technique ................................................................................... III .............882 R33 (en liasse) : Motions R25, R32 and R32A Order for appointment of an amicus curiae ............................................................................................. III .............898 R-32.1: Courriel daté le 2 septembre 2011 de Russell Moore à Michel Messier ..... III .............901 R-32.2: Courriel du 3 décembre 2012 de Rick Gendre à Michel Messier ................ III .............902 R32.3: Rapport complémentaire sur l'utilisation de l'appareil IDM ......................... III .............903 R-32.4: Affidavit of Corporal Josh Richdale - document caviardé ........................... III .............913 R-32.5:. A Analysis of Data collected for M. Colapelle 2011-03-15 and 2011-03-16 .......................................................................................... III .............919 R-32.6: Affidavit of civilan member Jocelyn Fortin (MDI project Clemenza) ............ III .............929 R-32.7: Note Colapelle ............................................................................................ III .............937 R-32.8: MDI technique targetting V. Mirarchi - September 21, 2011 ....................... III .............939 R-32.9: MDI technique targetting V. Mirarchi September 21, 2011 and December 19, 2011 ............................................................................. III .............952 R-32.10: Excerpts V. Mirarchi Calendar, September 21, 2011 .................................. III .............970 R-32.11: Surveillance document V. Mirarchi September 21, 2011 ............................ III .............981 R-32.12: Lettre datée le 21 juin 2012 ........................................................................ III .............995

vi) TABLE OF CONTENTS

VOLUME PAGE R-32.13: Agreed statement of facts on the chronology of disclosure for the purpose of motion R-32 ............................................................................... III .............997

VOLUME IV

R-32.14: Notice of objection to disclosure of information s.37.1 CEA ....................... IV ........... 1006 R-32.15: Order for the appointment of an amicus curiae s 37 CEA ........................... IV ........... 1008 R-32.16: Notice of application for standing on s 37 of CEA application ..................... IV ........... 1014 R-34 : On motions R25, R-32 and R-32A Issues that necessitate a ruling from the Court ............................................................................................. IV ........... 1020 R-34.1: Defense precisions to R-34 ........................................................................ IV ........... 1022 R v Mirarchi et al - Supp Submissions re MDI Disclosure ............................ IV ........... 1027 Factum of amicus Motions R-25 and R-32 .................................................. IV ........... 1059 Outline for Crown's final arguments on R25 and R32 .................................. IV ........... 1072 Motions R-25 and R-32 concerning the Investigative techniques privilege List of Items filed in ex parte sessions ......................................................... IV .......... 1079 EP-32.1 ........................................................................................................ IV ......... 1083

EP-32.2 ........................................................................................................ IV ......... 1085

EP-32.3 ........................................................................................................ IV ......... 1091

EP-32.4 ........................................................................................................ IV ......... 1096

EP-32.5 ........................................................................................................ IV ......... 1103

EP-32.6 ........................................................................................................ IV ......... 1114

EP-32.7 ........................................................................................................ IV ......... 1125

EP-32.8 ........................................................................................................ IV ......... 1131

EP-32.9 ........................................................................................................ IV ......... 1132

EP-32.10 ...................................................................................................... IV ......... 1134

vii) TABLE OF CONTENTS

VOLUME PAGE EP-32.11 a) ................................................................................................. IV ......... 1140

EP-32.12 ...................................................................................................... IV ......... 1148

EP-32.13 ...................................................................................................... IV ......... 1168

EP-32.14 ...................................................................................................... IV ......... 1197

EP-32.15 ...................................................................................................... IV ......... 1209

EP-32.16 ...................................................................................................... IV ......... 1213

EP-32.17 ...................................................................................................... IV ......... 1215

EP-32.18 ...................................................................................................... IV ......... 1216

EP-32.19 ...................................................................................................... IV ......... 1217

EP-32.20 ...................................................................................................... IV ......... 1219

EP-32.21 ...................................................................................................... IV ......... 1221

EP-32.22 ...................................................................................................... IV ......... 1223

EP-32.23 ...................................................................................................... IV ......... 1224

EP-32.24 ...................................................................................................... IV ......... 1227

EP-32.25 ...................................................................................................... IV ......... 1230

EP-32.26 ...................................................................................................... IV ......... 1240

EP-32.27 ...................................................................................................... IV ......... 1252

EP-32.28 ...................................................................................................... IV ......... 1256

EP-32.29 ...................................................................................................... IV ......... 1258

EP-I-32.9 ..................................................................................................... IV ......... 1272

VOLUME V

DEPOSITIONS Mark Flynn, November 11, 2014, transcript ................................................. V ........... 1316 Mark Flynn, November 11,2014, ex parte transcript .................................... V ........... 1490 Mark Flynn, November 17, 2014, transcript ................................................. V ........... 1517

viii) TABLE OF CONTENTS

VOLUME PAGE

VOLUME VI

Mark Flynn, November 27, 2014, transcript ................................................. VI .......... 1763 Mark Flynn, December 1, 2014, Transcript .................................................. VI .......... 1837 Reasons for redactions, December 2,2014, ex parte transcript ................... VI .......... 2036 Mark Flynn, June 30, 2015, transcript .......................................................... VI .......... 2062

VOLUME VII

Mark Flynn, June 30, 2015, ex parte transcript ............................................ VII ......... 2204 Mark Flynn,July 2, 2015, ex parte transcript ................................................ VII ......... 2265 Mark Flynn, July 14, 2015, ex parte transcript ............................................. VII ......... 2419 Mark Flynn, July 16 , 2015, transcript .......................................................... VII ......... 2454

VOLUME VIII

Josh Richdale, July 17 , 2015, transcript ..................................................... VIII ........ 2655 Josh Richdale, July 17, 2015, ex parte transcript ........................................ VIII ........ 2770 Josh Richdale, July 20, 2015, ex parte transcript ........................................ VIII ........ 2845 Jocelyn Fortin, July 21, 2015, transcript ...................................................... VIII ........ 2877 Jocelyn Fortin, July 21 , 2015, ex parte transcript ....................................... VIII ........ 2923 Jocelyn Fortin,July 22, 2015, ex parte transcript ......................................... VIII ........ 2985

VOLUME IX

Jocelyn Fortin, July 23, 2015, ex parte transcript ........................................ IX .......... 3096 Josh Richdale July 23, 2015, transcript ....................................................... IX .......... 3157 Josh Richdale, July 24, 2015, transcript ...................................................... IX .......... 3240 Crown’s submissions, September 9, 2015, transcript .................................. IX .......... 3300

ix) TABLE OF CONTENTS

VOLUME PAGE

VOLUME X

Defense’s submissions, September 11, 2015, transcript ............................. X ........... 3451 Crown’s submissions, September,17-2015 , ex parte transcript .................. X ........... 3510 Crown and amicus curiae’s submissions, September 18, 2015, ex parte transcript ........................................................................................ X ........... 3671 Common Law judgement, November 18, 2015, ex parte transcript ............. X ........... 3842

VOLUME XI

Exchange between the Court and the parties, November 23, 2015, transcript .................................................................... XI .......... 3384 Reasons for redactions, November 30, 2015, ex parte transcript ................ XI .......... 3932 Reasons for redactions, December 1, 2015, ex parte transcript .................. XI .......... 3963 Judgement on S.37 objection, December 4, 2015, ex parte transcript ........ XI .......... 3981

VOLUME XII

S.37 evidence and exchange between the Court and the parties, November 27, 2015, transcript .................................................................... XII ......... 3987 S.37 evidence and exchange between the Court and the partie, November 30, 2015, transcript ................................................................... XII ......... 4072

ATTESTATION

Attestation of the appellant ................................................................... XI/XII .. 3986/4073

C A N A D APROVINCE DE QUÉBECDISTRICT DE LAVAL

Nº : 540-01-063428-141C O U R S U P É R I E U R E

PRÉSENT: L’HONORABLE JUGE MICHAEL STOBER, J.C.S.

LA REINE

- C -

VITTORIO MIRARCHI et al.

-------------------------------------

AUDITION DU27 NOVEMBRE 2015

COMPARUTIONS:

Me ROBERT ROULEAU,Me MARIE-CHRISTINE GODBOUT,Me FOTINI HADJIS,Me ALEXIS GAUTHIERprocureurs de la PoursuiteMe MICHAEL LACY,Me FRANK ADDARIO,Me MAXIME HÉBRARD,procureurs de monsieur Mirarchi;Me RONNIE MACDONALD,procureur de monsieur Simpson;Me DOMINIQUE SHOOFEY,procureur de messieurs Milioto, D’addario, Racaniello, etMagistrale;Me GIUSEPPE BATTISTA,procureur de monsieur Fracas;Me ANIL KAPOOR,amicus curiae.

RACHEL SAUVÉSténotypiste officielle

CD151127.A

RACHEL SAUVÉSténographe officielle

(438) 837-0110

S.37 evidence and exchange between the Court and the parties, November 27, 2015, transcript

- 3987 -

LISTE DES PIÈCES

R-25-17: Affidavit, expert report, CV from Patrick Boismenu (en liasse) .. . . . . . . . . . . . . . . . . . . . 13

R-25-18: Two page affidavit from Allen William Treddenick . . 14

R-25-19I:Draft judgment Section 27 .. . . . . . . . . . . . . 21

--------------------

RS/ec - 2 - Rachel Sauvé, s.o.


- 3988 -

C.S. 540-01-063428-141Le 27 novembre 2015

L’an deux mille quinze (2015), ce vingt-septième (27e) 1

jour du mois de novembre, 2

3

L’HONORABLE MICHAEL STOBER, J.C.S. (LA COUR): 4

Maître Gauthier, pouvez-vous indiquer les 5

présences? 6

Me ALEXIS GAUTHIER, 7

procureur de la Poursuite: 8

Yes, sir. So we have mister Mirarchi, mister 9

Milioto, mister Simpson, mister Magistrale, mister 10

D’Addario, and mister Fracas. And mister 11

Racaniello as well in the front row. 12

LA COUR: 13

So everybody is present? 14

Me GAUTHIER: 15

They are. 16

LA COUR: 17

Just before we begin today, I just want to know if 18

there is any change to our schedule. After today, 19

we’re sitting on Monday, the 30th, and then every 20

day next week, every day the week of the 7th. 21

We’re booked for the 17th and 18th of December, 21, 22

22, 23, and tentatively the dates of 28, 29 and 23

30. They’re available but they haven’t been 24

fixed. 25



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C.S. 540-01-063428-141Le 27 novembre 2015

So I would like to know before we adjourn 1

today if there is any change to that. Also, we 2

were going to reconvene on the 14th of January. We 3

could come back a little earlier that week. And 4

I’d like to know if there’s any requests with 5

respect to that because I’ve been requested as to 6

whether or not this room is available. So if you 7

have any knowledge on that today, let me know. So 8

that’s the first point. 9

Secondly, the judgment I rendered in the fall 10

on the 11-B motion, it’s been brought to my 11

attention there is an error in paragraph 70, where 12

I wrote that Mirarchi and Milioto applied for 13

judicial release, whereas it should have been 14

Mirarchi and Racaniello who have applied. So 15

it’s changed, the name of Milioto is replaced with 16

Racaniello, which is accurate. 17

Madam clerk, I’m going to give you page 31, 18

it’s paragraph 70. If you could replace that page 19

in the original. There’s a few pages here if the 20

lawyers want to take a copy. And if more copies 21

are needed, you can have them made. So that’s 22

from the 11-B delay judgment that was rendered in 23

the file; there’s a correction of a name in a 24

paragraph. 25



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C.S. 540-01-063428-141Le 27 novembre 2015

The next point is with respect... is mister 1

Boro or... mister Engel are not here, eh? 2

Alright. The judgment on judicial interim release 3

with respect to Racaniello was rendered on 4

September 28th, and I said that I would have a 5

written copy today. Madam clerk, here’s the 6

original. And I have a copy for the Crown. Who’s 7

is acting for... 8

Me DOMINIQUE SHOOFEY, 9

procureur de messieurs Milioto, D’addario, Racaniello, 10

et Magistrale: 11

I am, Your Honour. 12

LA COUR: 13

So I have one copy for you. If any of the other 14

lawyers need a copy, they can ask the Crown or 15

maître Shoofey. 16

The next point is with respect to the Vaudry 17

judgment. I said I would have a written copy 18

today; I do. This judgment was orally delivered 19

on July 20th, the original has been filed in the 20

Court record. And that is R-31. Copy for the 21

Crown. Copy for mister Macdonald. 22

Me RONNIE MACDONALD, 23

procureur de monsieur Simpson: 24

Thank you, Your Honour. 25



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C.S. 540-01-063428-141Le 27 novembre 2015

LA COUR: 1

Can I see that one moment, Madam clerk? It’s 2

fine. I have an additional copy, if one of the 3

lawyers wants it, they can have it. 4

Me MICHAEL LACY, 5

procureur de monsieur Mirarchi: 6

I’ll take a copy of it. Thank you. 7

LA COUR: 8

So do you want to indicate what the plan is for 9

today? 10

Me LACY: 11

Good morning, Your Honour. If I could address you 12

on behalf of all counsel; we’re joined by mister 13

Kapoor today, who made himself available at the 14

last minute really to assist counsel. And we’ve 15

been in meetings with mister Kapoor and with the 16

Crown counsel intermittently since this morning. 17

So thank you for starting a little bit later this 18

morning. 19

LA COUR: 20

Just on that point, starting a little later this 21

morning, it’s fine. I was advised yesterday, I 22

think maître Hébrard, you called my office and I 23

appreciate that, and it’s no problem if it allows 24

the lawyers to get together. I always try to go 25



- 3992 -

C.S. 540-01-063428-141Le 27 novembre 2015

out of my way to accommodate everybody. 1

There is one thing that concerned me: The 2

privilege motion is obviously something that’s a 3

very important motion in this matter. Maître 4

Rouleau, you’re the one that argued this motion. 5

You haven’t been here for every motion, but you 6

argued this one, you were the one who was 7

examining the witnesses. And I have to say I was 8

quite surprised you weren’t here when I rendered 9

my judgment the other day. The reason I’m saying 10

this now is because mister Lacy just said that 11

they asked for us to commence later this morning 12

because there were reasons to get together. My 13

office was contacted, I had no problem with that. 14

So you said you were in front of Justice 15

Brunton, maybe you’ll tell me that the matter with 16

respect to issues in front of Justice Brunton had 17

priority. I can certainly have access to that 18

information on my own, but I think it was very 19

important for Crown counsel who pleaded this 20

motion, particularly in view of comments that you 21

raised the other day that you anticipated, you 22

were very confident the decision would go a 23

certain way. You also were very vehement in 24

negating any questions of ethical allegations, 25



- 3993 -

C.S. 540-01-063428-141Le 27 novembre 2015

which were never raised. That was raised by you 1

in a very flamboyant way. The defence counsel nor 2

myself, nor the amicus, none of us raised anything 3

like that. That came from you. 4

Had you contacted my office in the same way 5

maître Hébrard did and said: « Look, I have a 6

matter before another judge in the morning, could 7

you render your judgment in the afternoon? », 8

there would have been no problem... or the next 9

day. I think it was incumbent upon you to be 10

there, the lead counsel, on a very important 11

motion. And the reason I say it, I understand 12

that maître Godbout and maître Gauthier went out 13

of their way to brief you on what was stated, they 14

were here, and I’m sure they were taking very good 15

notes of what I said, but it’s not the same thing 16

as being here. 17

And when you came here in the afternoon and 18

you made some very strong remarks with respect to 19

certain points, how much weight can I attribute to 20

that when you weren’t even here yourself to hear 21

the judgment? Let’s go ahead. Sorry, Maître 22

Lacy. 23

Me LACY: 24

One of the things I wanted to (inaudible) on 25



- 3994 -

C.S. 540-01-063428-141Le 27 novembre 2015

behalf of mister Kapoor, Your Honour, he has to 1

leave at 12:00 today for a family... it’s a 2

funeral. So he may excuse himself if we’re not 3

completed, and he wanted me to at least alert the 4

Court to that. 5

LA COUR: 6

That’s fine. Thank you for letting me know that. 7

And when you have to leave, Maître Kapoor, just 8

step out. 9

Me ANIL KAPOOR, 10

amicus curiae: 11

Thank you. 12

LA COUR : 13

You don’t have to interfere or anything like that. 14

And thank you very much for your presence today, I 15

appreciate it, as do all counsel. Go ahead. 16

Me LACY: 17

As do we, Your Honour, it was very thoughtful. 18

LA COUR: 19

We all do. 20

Me LACY: 21

The time today was very useful in coming to what 22

we propose to deal with in terms of an agreed 23

procedure for the section 37 motion, as well as 24

the proposed evidence and the manner in which the 25



- 3995 -

C.S. 540-01-063428-141Le 27 novembre 2015

evidence would be presented. 1

So following receipt of Your Honour’s redacted 2

reasons for judgment on the disclosure motion, as 3

you know, the Crown gave notice that they were 4

invoking section 37 of the Canada Evidence Act but 5

also wanted to adduce further evidence. Putting 6

aside the history of that, you heard from us last 7

time we were before you, on Monday, that in all 8

the circumstances we were consenting to the Crown 9

adducing the further evidence. 10

We received two affidavits from the Crown: An 11

affidavit from an RCMP officer, officer Boismenu, 12

and we received an affidavit from an employee of 13

what’s now known as Blackberry, RIM, the former 14

Research in Motion from Waterloo, Ontario. And we 15

are content that the Crown file those affidavits 16

before the Court as their further evidence on the 17

Section 37 motion. We are not asking to cross- 18

examine the authors of those affidavits and we 19

accept those affidavits for the truth of their 20

contents, they represent the evidence that the 21

officer would give and also the employee from 22

Blackberry, what he would testify to. 23

If you’re prepared to proceed in that way, we 24

also have further submissions for you to consider 25



- 3996 -

C.S. 540-01-063428-141Le 27 novembre 2015

with respect to whether or not this affects your 1

judgment and the order that you made. And... 2

LA COUR: 3

Firstly, let’s file the affidavits. 4

Me LACY: 5

That’s what I was thinking would be appropriate. 6

LA COUR: 7

Are the affidavits with respect to R-25... 8

Me LACY: 9

Yes. 10

LA COUR : 11

... D-1, or both? Or is it mainly 25? 12

Me ROBERT ROULEAU, 13


It’s R-25, it’s on the global issue. 15

LA COUR: 16

The global issue. So what would be the next 17

exhibit on 25? 18

LA GREFFIÈRE: 19

I would say 25-16. 20

UNE VOIX NON-IDENTIFIÉE : 21

I have 25-17. 22

LA GREFFIÈRE : 23

This one would be 17, that’s what I meant. 24

25



- 3997 -

C.S. 540-01-063428-141Le 27 novembre 2015

Me ROULEAU: 1

So affidavit of Patrick Boismenu and the... 2

report, attached report. Let’s make it simple. 3

LA COUR: 4

Accompanied by. 5

Me ROULEAU: 6

Accompanied, yes. 7

LA COUR: 8

So I have a two page affidavit from Patrick 9

Boismenu and an expert report, which is nine 10

pages, the two documents together. Along with his 11

CV, which is nine pages. So the three documents 12

en liasse will be... 13

Me ROULEAU: 14

There’s two documents, Your Lordship. 15

LA GREFFIÈRE : 16

No, the CV, maître Rouleau, I’m sorry. We 17

attached the curriculum vitae as well. 18

LA COUR: 19

You gave me a CV, do you want that filed or not? 20

Me ROULEAU: 21

Yes, yes. 22

LA COUR: 23

Mister Lacy, is that alright, the CV? 24

25



- 3998 -

C.S. 540-01-063428-141Le 27 novembre 2015

Me LACY: 1

We are content. Thank you. 2

LA COUR: 3

So affidavit, expert report, CV, en liasse, will 4

be R-25-17. The three documents are all recto- 5

verso. 25-17 contains three documents en liasse: 6

1 is the affidavit, 2 is the expert... Boismenu’s 7

report, 3 is Boismenu’s CV. Can I have a stapler, 8

madam clerk? 9

*** PIÈCE R-25-17 *** 10

This is the expert report that would have been in 11

one of the documents under Boismenu but which 12

wasn’t there. Is that correct? 13

Me LACY: 14

It’s a new report. 15

Me ROULEAU: 16

It’s a new report, yes. 17

LA COUR : 18

The date of November 18th... 19

Me LACY: 20

But you’re quite right, the original response... 21

Sorry, I’m interrupting. 22

LA COUR: 23

No, it’s okay. November 18th, I see the date. So 24

this is something new? 25



- 3999 -

C.S. 540-01-063428-141Le 27 novembre 2015

Me ROULEAU: 1

Yes. Now also, one affidavit, two pages, from 2

Allen William Treddenick, a representative of 3

Blackberry. 4

LA COUR: 5

So a two page affidavit from Allen William 6

Treddenick will be R-25-18. 7

*** PIÈCE R-25-18 *** 8

Okay, go ahead. 9

Me ROULEAU: 10

So save the admissions that my colleagues are 11

about to relate to the Court, that will conclude 12

the evidentiary part of this. 13

LA COUR: 14

On the Section 37 hearing? 15

Me ROULEAU: 16

Yes. 17

LA COUR: 18

So the Crown’s evidence on Section 37 contains the 19

two affidavits, 25-17 and 25-18. And the Defence 20

consents to their filing, doesn’t need to cross- 21

examine either witness? 22

Me LACY: 23

No. And they’re admissible for the truth of their 24

content. 25



- 4000 -

C.S. 540-01-063428-141Le 27 novembre 2015

LA COUR: 1

Any witnesses you want to call? 2

Me LACY: 3

No, thank you, Your Honour. And I understand 4

there’s no in camera evidence to be called by the 5

Crown? 6

Me ROULEAU: 7

That is correct. 8

LA COUR: 9

With respect to the other accused or parties to 10

these motions 25 and 32, any of the other Defence 11

counsel have anything to say about mister Lacy’s 12

position, the two documents, 17 and 18 are 13

admissible for the truth of the contents and on 14

behalf of Mirarchi he doesn’t wish to call any 15

further evidence; does everybody have the same 16

position? 17

Me MACDONALD: 18

We adopt, Your Honour. 19

LA COUR: 20

Does anyone have a different position? No? If 21

you could note that. Is there counsel here today 22

that represents each one of the accused? 23

Me SHOOFEY: 24

I represent mister Milioto and I will be 25



- 4001 -

C.S. 540-01-063428-141Le 27 novembre 2015

representing mister D’Addario, mister Racaniello, 1

and that will be it. 2

LA COUR: 3

Alright. And mister Lacy represents Mirarchi. 4

Mister Battista? 5

Me GIUSEPPE BATTISTA, 6

procureur de monsieur Fracas: 7

Fracas. 8

LA COUR : 9

Mister Fracas. And mister... 10

Me MACDONALD: 11

Mister Simpson. 12

LA COUR : 13

Simpson. Are we missing one? 14


Mister Magistrale. 16

LA COUR: 17

Who is representing Magistrale? 18

Me SHOOFEY: 19

I will be representing mister Magistrale. I knew 20

I was missing one. 21

LA COUR: 22

That’s fine. Madam clerk, if you could indicate 23

that on the record who is representing who in the 24

absence of the lawyers. So the statements that 25



- 4002 -

C.S. 540-01-063428-141Le 27 novembre 2015

were just made with respect to the admission that 1

the Crown’s two exhibits, 25.17 and 25.18, all 2

Defence counsel are agreeing that the documents 3

were admissible for truth of their contents. And 4

none of the Defence counsel, after the Crown 5

proclaimed it has no further evidence on this 6

section 37 of the Canada Evidence Act privilege 7

motion, none of the Defence counsel have any 8

evidence to call. Is that correct? 9


That’s correct. 11

LA COUR: 12

And the Crown has no rebuttal, anything to say, 13

nothing else? Obviously not. 14

Me ROULEAU: 15

No. 16

LA COUR: 17

So the evidence is closed. We’re into argument 18

now. Go ahead. 19

Me LACY: 20

And it pleases the Court, just because of what I 21

propose to tell the Court on behalf of all the 22

applicants, if we could make the submissions first 23

rather than... I know it’s the Crown’s motion... 24

25



- 4003 -

C.S. 540-01-063428-141Le 27 novembre 2015

LA COUR: 1

Do they agree? 2

Me ROULEAU: 3

Yes, of course. 4

LA COUR: 5

That’s fine. 6

Me LACY: 7

So if I could just start with exhibit R-25-18, 8

which is the affidavit from the employee from 9

Blackberry Limited, Allen William Treddenick. 10

LA COUR: 11

Obviously, you realize I haven’t read either of 12

these documents. 13

Me LACY: 14

I know, Your Honour, and you may want to reflect 15

after I make my submissions. I think we’re 16

essentially ad idem with respect to what should 17

happen, so if it’s appropriate I can lay that out 18

for you and you can reflect on it and see if you 19

want to accede to the position of the parties 20

before you. 21

The affidavit R-25-18, which you’ll have a 22

chance to review, from the employee of Blackberry, 23

I think a fair characterization of the affidavit 24

is that it speaks to the concern of Blackberry 25



- 4004 -

C.S. 540-01-063428-141Le 27 novembre 2015

regarding the dissemination of the global 1

encryption key and the impact it would have with 2

respect to the commercial interests of Blackberry 3

and also their relationship with law enforcement. 4

It speaks for itself but I think that’s a fair 5

characterization of the content of the affidavit. 6

LA COUR: 7

Firstly, you understand that my judgment, there’s 8

no order for Blackberry to release their key. The 9

order is for the RCMP to release the key that they 10

devised, their algorithm. Maybe it’s not the 11

same, I don’t know. 12

Me LACY: 13

I’ll come to that in a moment, Your Honour, just 14

with respect to this issue. But on this 15

particular affidavit, Your Honour already, in your 16

reasons for judgment, dealt with the question of 17

the relevance of the commercial interests of RIM, 18

or Blackberry as it’s now called, and you’ll see 19

that in paragraph 177 of your redacted reasons, 20

which, if they haven’t been deposited with the 21

Court should be deposited with the Court at some 22

point so that we have them as part of the Court 23

records. 24

25



- 4005 -

C.S. 540-01-063428-141Le 27 novembre 2015

LA COUR: 1

You’re referring to what? 2

Me LACY: 3

The redacted versions of your disclosure reasons. 4

LA COUR: 5

Obviously, I’m going to have to prepare another 6

judgment. Whether it has the same conclusions or 7

different or modified, I don’t know at this point. 8

A lot of the contents of the judgment, at the very 9

least the facts and the position of the parties, 10

with some changes, are going to be the same. 11

So my point is when that takes place, I’m 12

going to ask all counsel to return the judgment, 13

the draft judgment that I have given you, you may 14

have made copies for your colleagues to review 15

with you, I would ask for you to return all of the 16

copies at that time, not now, it will be when I 17

file the final judgment with respect to the Common 18

Law and the Section 37 privilege. 19

So you’re referring to paragraph 177 of... 20

Me LACY: 21

Yes. 22

LA COUR: 23

So what we can do is we can file the draft 24

judgment as « I » for identification for the time 25



- 4006 -

C.S. 540-01-063428-141Le 27 novembre 2015

being, for the purpose of... 1

Me LACY: 2

Sure. 3

LA COUR: 4

So I will make it R-25-19I. 5

*** PIÈCE R-25-19I *** 6

Me LACY: 7

Thank you, Your Honour. And you’ll see that that 8

paragraph makes it clear that RIM’s commercial or 9

economic interests are irrelevant when you’re 10

balancing the respective interests of the accused 11

to make full answer and defence in the interest of 12

the state in keeping an investigative technique 13

privilege. So from the applicants’ perspective, 14

the affidavit really doesn’t add anything to the 15

calculus. That being affidavit R-25-18. 16

LA COUR: 17

Well, the only thing in paragraph 3, I haven’t 18

read the whole thing, but it refers to governments 19

using encryption to secure classified information, 20

which... That portion goes beyond commercial 21

interests. 22

Me LACY: 23

Yes, fair enough. But frankly I don’t think you 24

would need an affidavit to say that government 25



- 4007 -

C.S. 540-01-063428-141Le 27 novembre 2015

uses encryption. 1

LA COUR: 2

Do you agree with me that I don’t have any 3

evidence in front of me to show that the global 4

key that was used to decrypt these messages is the 5

same global key that was... RIM’s global key? 6

Me LACY: 7

You didn’t have any evidence before you. I agree 8

with that. But that... 9

LA COUR: 10

There’s nobody that came here from Blackberry that 11

says: « We’re aware of the global key that they 12

used, that’s the same one, so you can’t release 13

that ». I don’t have that. 14

Me LACY: 15

No, you did not have that. That’s why you were, 16

in our submission, compelled to make the order you 17

made, which was requiring the RCMP to disclose the 18

global encryption key to the applicants. There 19

was no other reasonable alternative based on the 20

evidence that was before you. 21

LA COUR: 22

I must have said at least two times in the 23

decision that no one from Blackberry testified. 24

25



- 4008 -

C.S. 540-01-063428-141Le 27 novembre 2015

Me LACY: 1

I don’t disagree with the characterization of the 2

evidentiary record that was before you at Common 3

Law. 4

LA COUR: 5

Alright. Does the Crown disagree with that 6

position? 7

Me ROULEAU: 8

I’m going to refrain from any comment because 9

we’re walking a very very fine thread. I don’t 10

want to fall into a bear trap, for obvious 11

reasons. 12

LA COUR: 13

Okay, I understand. 14

Me ROULEAU: 15

Given the part of your judgment that is ex parte, 16

and... it’s very difficult for me to comment on 17

that. 18

LA COUR: 19

Well, my remarks are here in the public hearing, so 20

you can answer with respect to the public hearing. 21

Me ROULEAU: 22

I agree that nobody from Blackberry came before 23

this affidavit was filed, that’s obvious, in the 24

public... 25



- 4009 -

C.S. 540-01-063428-141Le 27 novembre 2015

LA COUR: 1

Do you have a copy of the... I have my judgment, I 2

don’t have a copy of the redacted decision. So 3

perhaps I should see that. 4

Me ROULEAU: 5

Yes. 6

LA COUR : 7

Okay, go ahead. Sorry, Mister Lacy. 8

Me LACY: 9

No, not at all, Your Honour. 10

LA COUR: 11

Just when you’re referring to paragraphs, before I 12

fall into the situation referred to by mister 13

Rouleau, I want to make sure that what I say has 14

not been redacted. 15

Me LACY: 16

I quite agree, Your Honour. I think that’s the 17

safest course of action. 18

LA COUR: 19

Alright. Go ahead. 20

Me LACY: 21

R-25-17 is new evidence. It’s new, and the 22

applicants concede material new evidence. Again, I 23

don’t think it’s helpful at this stage to revisit 24

the fact that all of this evidence should have and 25



- 4010 -

C.S. 540-01-063428-141Le 27 novembre 2015

could have been led at Common Law. Because we’re 1

passed that, we’re now into the section 37 hearing. 2

LA COUR: 3

You heard what I said about that the other day. 4

Me LACY: 5

That’s why I don’t think it’s necessary that we 6

revisit that. And we’ve already made the 7

concession that the Crown should be entitled to 8

call this evidence rather than risk the matter of 9

coming back for that purpose. 10

So R-25-17 deals directly and expressly with 11

an aspect of Your Honour’s order from the 12

applicants’ perspective. So if you have the 13

redacted reasons in front of you... 14

LA COUR: 15

I do. 16

Me LACY: 17

At paragraph 287, it deals with the disclosure 18

order. This is page 91. It’s the disclosure order 19

in relation to R-25. And you ordered three things: 20

The location on the travel path of the RCMP’s 21

intercept solution had to be disclosed; the role, 22

if any, of Research in Motion – and I think we 23

used that term throughout the motion synonymously 24

with Blackberry – in the interception and 25



- 4011 -

C.S. 540-01-063428-141Le 27 novembre 2015

decoding process; and the third thing that you 1

ordered was the global key, which we all understand 2

to be the global encryption key. And then you went 3

on to say « save and except », and there’s things 4

there that you’ve ordered should not be disclosed 5

and they’ve been redacted. 6

And the affidavit from officer Boismenu, who, 7

you’re quite right, did provide a report earlier on 8

R-25, but he’s provided a new report with new 9

information on R-25-17, new public information at 10

least, new to the applicants. You’ll see at 11

paragraph 4, officer Boismenu says as follows: 12

« It’s also my professional opinion 13

that an decryption key cannot produce 14

partial results ». 15

LA COUR: 16

Where are you? 17

Me LACY: 18

Sorry, R-25-17, I’ve moved to that... affidavit of 19

officer Boismenu. 20

Me ROULEAU: 21

Not in the reasons, Your Honour. 22

LA COUR: 23

No, no, I have it here. What paragraph? 24

25



- 4012 -

C.S. 540-01-063428-141Le 27 novembre 2015

Me LACY: 1

Paragraph 4. 2

LA COUR: 3

And what page? 4

Me LACY: 5

It’s the first page of the affidavit. Not the 6

report, the affidavit. 7

LA COUR: 8

« It is also my professional 9

opinion... » 10

Me LACY: 11

Yes. 12

« ... that an decryption key cannot 13

produce partial results. When an 14

decryption key is produced to the raw 15

data, it will either produce a result 16

or will produce nothing at all. » 17

And I wanted to just add to this that we also 18

understand that this forms part of what I’m going 19

to tell you in terms of the concession the 20

applicants are going to make. We understand from 21

representations made by the Crown, which should be 22

part of the record, that RIM has confirmed, 23

Blackberry has confirmed with the Crown – even 24

though it’s not part of R-25-18 – that if you 25



- 4013 -

C.S. 540-01-063428-141Le 27 novembre 2015

have the encrypted PIN message and you apply 1

something other than the global encryption key 2

which is meant to decipher the message, you will 3

get no result. 4

That’s part of what the Crown has confirmed 5

with the Blackberry/RIM technicians, the technical 6

people, about the way the global encryption key 7

works. So they have confirmed this aspect, and 8

we’re putting it on the record, that this is the 9

representation that’s been made to us as well 10

through the Crown. This aspect of officer 11

Boismenu’s affidavit would be or is confirmed by 12

the technical information from RIM, from 13

Blackberry. 14

LA COUR: 15

So the fact that RIM/Blackberry has confirmed that 16

you have an encrypted PIN message and you apply 17

something other than the global key, you’ll get no 18

results, the Defence admits that? 19

Me LACY: 20

And I want to just add... 21

LA COUR : 22

Is that right? 23

Me LACY: 24

Yes. I want to add one other thing to that, 25



- 4014 -

C.S. 540-01-063428-141Le 27 novembre 2015

though. We’ve been told this by way of a 1

representation, and we see it under oath from 2

officer Boismenu as well. This was the first 3

indication we had of this, so I want to be clear 4

about this. This is new information for the 5

applicants as well, as it is for the Court, and as 6

it is no doubt for the amicus. 7

So we undertook our own investigative efforts. 8

I don’t want to get into the details with that, but 9

we confirmed the truthfulness and accuracy of that, 10

to the extent that we were able, through our own 11

investigative efforts. On that basis – that’s 12

why we’re not cross-examining officer Boismenu – 13

and it’s on that basis that we agree that on the 14

state of the representations made under oath by an 15

RCMP officer, and on the representations made by 16

the Crown as officers of the Court, that the RCMP, 17

to get any translation at all, would have had to 18

have had the correct global encryption key. 19

And we reflected on Your Honour’s ruling, and 20

you quote at one point on the unredacted version of 21

the ruling from an example posited by mister Kapoor 22

as amicus, the translation example or the language, 23

the translation or a language from... I don’t want 24

to use French to English, but let’s say from 25



- 4015 -

C.S. 540-01-063428-141Le 27 novembre 2015

Japanese to English, you would need to know about 1

the nature of the translator to have any confidence 2

that it’s been translated accurately to English. 3

I’m not doing what you say justice or what mister 4

Kapoor submitted to you I’m sure, but in terms of 5

what’s contained in your judgment, that’s the gist 6

of what we understood. 7

Now, the state of the evidentiary record, 8

which frankly should have been before you. But the 9

state of the evidentiary record now on the Section 10

37 application, it turns out that as it relates to 11

this particular encryption process that Blackberry 12

uses, that analogy doesn’t hold true. Because you 13

wouldn’t see any English from the Japanese if you 14

were doing a translation, you would see nothing. 15

It would come up still as being Japanese if you 16

were using the wrong translation. And that’s the 17

effect of the Boismenu affidavit, is that you have 18

to have the correct global encryption key. 19

In effect, you have to have the proprietary or 20

intellectual property of RIM/Blackberry, wherever 21

it comes from, in order to make sense of an 22

encrypted PIN to PIN communication. You would not 23

get any output at all... If anything was wrong 24

with your key, it would come out still being 25



- 4016 -

C.S. 540-01-063428-141Le 27 novembre 2015

encrypted. So you would have the jumbled data; if 1

any part of the key was wrong, you would still get 2

the jumble data. 3

That’s what the Crown has put forward in 4

officer Boismenu’s affidavit, that’s what the 5

report speaks to that’s appended to the affidavit, 6

and that’s what the Crown has represented to us and 7

is representing the Court by us making these 8

admissions to you that Blackberry has confirmed, 9

that RIM has confirmed. 10

So it’s a long way of trying to explain to 11

Your Honour where the applicants come to as a 12

result of that. As you know from our perspective, 13

and it’s clear in your judgment, this was not a 14

fishing expedition when we went down the road of 15

seeking information on R-25 or on R-32. The 16

applicants have almost maintained, and you’ve 17

found, that we were seeking access to information 18

that was necessary to make full answer and defence 19

that went to the core nature of the allegations 20

being made against the applicants and the core 21

evidentiary foundation that the Crown was going to 22

point to during the trial. 23

We, from our perspective, have done our best 24

to take reasonable positions based on the 25



- 4017 -

C.S. 540-01-063428-141Le 27 novembre 2015

evidentiary record. And we have not, from our 1

perspective, tried to overshoot and get things that 2

do not matter in the grand scheme of things, or for 3

that matter trying to get access to information 4

that might be in the possession or control of the 5

Crown that is not truly necessary to make full 6

answer and defence on these motions. We’ve been 7

trying to get access to information that we take 8

the position is actually necessary to make full 9

answer and defence. 10

So in light of the new information on the... 11

And it goes without saying from the applicants’ 12

perspective, and certainly this will be litigated 13

in another forum, Your Honour’s original ruling on 14

the basis of the Common Law evidence, on the Common 15

Law application on the evidence the Crown chose to 16

put forward, in unassailable. 17

Making an order for disclosure of the global 18

encryption key in light of the evidence that was 19

put before you and the arguments that were 20

advanced, you were compelled to make no other order 21

from our perspective. Any other order would have 22

compromised our ability to make full answer and 23

defence. But the evidentiary playing field has 24

shifted dramatically with respect to that issue, 25



- 4018 -

C.S. 540-01-063428-141Le 27 novembre 2015

that one aspect of your R-25 disclosure order. 1

And as responsible counsel, or on behalf of 2

all the applicants, we are now in a position where 3

we agree that in light of that new evidence it 4

would be appropriate – and of course the Court is 5

the ultimate determination – but it would be 6

appropriate for Your Honour to amend the disclosure 7

order, or to amend your reasons or the disclosure 8

order, so that paragraph 287 as it would apply on 9

the Section 37 motion would still require 10

disclosure of sub-paragraph I and sub-paragraph ii, 11

but on the issue of the global key you would 12

include that in the paragraph « save and except », 13

if you agree with our concessions, « save and 14

except the global encryption key », which now, in 15

light of the evidentiary record, the applicants are 16

no longer submitting – the new evidentiary record 17

– that it’s necessary for us to have that global 18

encryption key to make full answer and defence. 19

LA COUR: 20

Do all other Defence counsel adhere to this 21

position? 22


We do, Your Honour. 24

25



- 4019 -

C.S. 540-01-063428-141Le 27 novembre 2015


Yes. 2

LA COUR: 3

You understand that my order on the global key, as 4

I said before, wasn’t an order to Blackberry, it 5

was an order to... Maybe it wasn’t made clear 6

enough. 7

Me LACY: 8

I took from this, because Blackberry... It wasn’t 9

a third party record application that you were 10

ordering the RCMP to disclose the global encryption 11

key in their possession. 12

LA COUR: 13

It stated earlier that... Anyway, the order for 14

the global key was with respect to... It wasn’t an 15

order to RIM. 16

Me LACY: 17

Right. It was a Stinchcombe order that required 18

what was in the possession or control of the Crown 19

or the police. 20

LA COUR: 21


Me LACY: 23

And we understand that. 24

25



- 4020 -

C.S. 540-01-063428-141Le 27 novembre 2015

LA COUR: 1

The order says: 2

« Orders the disclosure by the 3

Crown ». 4

That’s not redacted (inaudible) 287. 5

Me LACY: 6

Yes, quite right. 7

LA COUR: 8

So you’re asking me to amend 287 to take out iii, 9

the global key, and put it under the « save and 10

except » portion of the paragraph, and you’re 11

asking me to do the same thing with respect to 286 12

on the declaration? 13

Me LACY: 14

Yes. But what I should just add, Your Honour... I 15

know you’re inclined to modify, or at least you 16

want to leave open the possibility of modifying the 17

reasons from... the Common Law application and now 18

incorporating whatever has been said on the Section 19

37. I think it’s important, it’s up to Your Honour 20

how you do it, but I do think it’s important that 21

any reviewing court understand what your order was 22

at Common Law, based upon the evidence that was 23

before you, and why, if at all, the order has 24

changed as a result of the Section 37 application. 25



- 4021 -

C.S. 540-01-063428-141Le 27 novembre 2015

In other words, it may be more... I leave it 1

to Your Honour of course, but it may be more 2

appropriate for the court’s perspective, a 3

reviewing court’s perspective, for Your Honour to 4

do an addendum or a supplementary page, or however 5

Your Honour wanted to do it, an endorsement. But I 6

wouldn’t want any reviewing court to think at first 7

instance there was something about your order that 8

the applicants thought was wrong or was 9

overreaching or otherwise. 10

I hope I’ve been clear today, that’s not the 11

basis... Our concession is based upon the fact 12

that things you didn’t know, and things that we 13

didn’t know, things that the amicus didn’t know, 14

notwithstanding the Crown had every opportunity in 15

public, and obviously now they’ve filed public 16

evidence, that’s where it should have been done at 17

first instance, but also every opportunity in 18

camera to adduce whatever evidence was necessary to 19

establish what we think... where we take the 20

position the new affidavit evidence establishes. 21

LA COUR: 22

I totally agree with you that the evidence produced 23

today should have been produced beforehand. The 24

additional time being spent now is not necessary. 25



- 4022 -

C.S. 540-01-063428-141Le 27 novembre 2015

The Crown has agreed that the same principles that 1

apply to a Common Law privilege also apply to 2

Section 37, and this evidence should have been 3

called. To make an argument in front of me while 4

we had confidence that your decision would be 5

different is totally unacceptable. It should have 6

been called earlier. 7

Having said that, in terms of the mechanics 8

here, how to do that, if I should agree with you – 9

because as I said, other than your comments and 10

references to certain paragraphs, I haven’t read 11

the material – but if I should agree with you, 12

you’re suggesting that I leave the draft judgment 13

as is and prepare a secondary judgement under 14

Section 237: Subsequent to the previous judgment, 15

the Crown has produced further evidence which 16

wasn’t available earlier, and the Defence’s 17

position is this, the Crown’s position is this, and 18

in lieu of that number iii should go under the 19

« save and except » and be covered by privilege. 20

That’s one option. The other option would be 21

to, in the analysis, indicate that originally the 22

Court’s position was to have the key disclosed; 23

after the judgment was rendered the Crown produced 24

new evidence and the position taken was this. 25



- 4023 -

C.S. 540-01-063428-141Le 27 novembre 2015

That’s another option, to integrate it in a certain 1

way with new orders at the end. 2

Me LACY: 3

Yes, whatever... Obviously, it’s for Your Honour 4

to determine the most appropriate way to proceed. 5

LA COUR: 6

No, I’ll do that, but we’re here so I’d like to 7

hear what counsel and the Crown and the amicus feel 8

is the most comprehensible and best way, with 9

respect to whatever might follow. 10

Me LACY: 11

From our perspective, just so that your path of 12

reasoning is abundantly clear to the Court of 13

Appeal, and there can be no doubt as to why the 14

declaration and order changed, an addendum would 15

accomplish that in a very direct way and would be 16

very transparent about how you came to modify the 17

original release. That’s our respectful 18

submission. 19

LA COUR: 20

So in other words, leave it as it is and follow-up 21

with a Section 37 judgment only? Because this 22

judgment is very clear, it only applies to the 23

Common Law privilege. 24

25



- 4024 -

C.S. 540-01-063428-141Le 27 novembre 2015

Me LACY: 1

I would think the addendum would... Again, I am 2

not suggesting I can tell Your Honour how to do it, 3

but you can incorporate all of your evidence... 4

LA COUR: 5

No, no, you don’t... I asked for input. 6

Me LACY: 7

Okay. Then I would suggest that you incorporate... 8

The addendum would say: I incorporate all of the 9

evidence and my previous judgement subject to the 10

following additional... 11

LA COUR: 12

Additional evidence which is new to the record. 13

Me LACY: 14

Right. And then that way, it’s abundantly clear 15

how you ended up... Because the Crown will have to 16

produce, I gather, a Section 37 order... or... In 17

any event, there will have to be something before 18

the Court of Appeal that is being appealed. So 19

that would be part of the addendum. 20

LA COUR: 21

So if I should agree with you... Firstly, in view 22

of the new evidence your position is that everybody 23

has agreed that the global key should be 24

privileged, in view of the new evidence that’s 25



- 4025 -

C.S. 540-01-063428-141Le 27 novembre 2015

filed today? 1

Me LACY: 2

Based on the new evidence and the representations 3

that have been made to us, that’s what our position 4

is. 5

LA COUR: 6

Alright. 7

Me LACY: 8

There’s one caveat, and I don’t mean to overly 9

complicate this: You see at paragraph 287, the 10

« save and except », what we’re not getting is 11

blacked out. And obviously we don’t know what 12

we’re not getting. But the only thing that I would 13

say is this, Your Honour: If for some reason part 14

of the rationale for not disclosing the blacked out 15

portion at paragraph 287 was because you had made 16

an order for the global encryption key which 17

satisfied some aspect of what was being redacted, 18

then to the extent that that would change the 19

balance on what is not being disclosed, then you’d 20

have to obviously just re-engage that balancing. 21

But because we don’t know what’s not being 22

disclosed, I can’t really say anything more about 23

that. 24

25



- 4026 -

C.S. 540-01-063428-141Le 27 novembre 2015

LA COUR: 1

In the draft judgment, I think number iii, the 2

global key, what I will do is, without deciding 3

anything at this point, but I will say the global 4

key... I think I’ll discuss that off record later, 5

on the ex parte later. I’ll deal with that later. 6

Me LACY: 7

Thank you. 8

LA COUR : 9

And I might qualify that. 10

Me LACY: 11

Then I’ll... Again, it’s probably not appropriate 12

that I engage in that conversation with you given 13

that it’s... 14

LA COUR : 15

No. 16

Me LACY: 17

Presumptively because of the objection privilege. 18

Can I have a moment’s indulgence, Your Honour? 19

LA COUR: 20

Yes, I will, but... So your preference – and 21

I’ll ask the Crown, and I’ll ask maitre Kapoor 22

before he leaves – your preference is to have the 23

initial judgment as is, to file a secondary 24

judgment only under Section 37... Obviously, the 25



- 4027 -

C.S. 540-01-063428-141Le 27 novembre 2015

facts and whatever positions the parties had are 1

the same subject to what took place today. And in 2

the analysis I made that applies to the Common Law 3

privilege, you’re agreeing with everything that... 4

you’re not asking anything to be changed in the 5

initial draft judgment with the exception of your 6

position, your new position, because there’s new 7

evidence filed today? 8

Me LACY: 9

Yes, as long as that’s abundantly clear in the 10

addendum, it’s based on the new evidence and new 11

representations. That really, I think, achieves 12

what we would like to see. 13

LA COUR: 14

Alright. So as far as any of the other orders, 15

with respect to R-25 or R32, the MDI, that will 16

stay as it is. 17

Me LACY: 18

That’s the other aspect of this: Part of our 19

willingness to proceed this way is the Crown’s 20

concession that no other aspect of your order would 21

be affected. That doesn’t preclude the Crown 22

obviously from reviewing the correctness of that 23

order. They will take the position of the Court of 24

Appeal, whatever position they will take, but none 25



- 4028 -

C.S. 540-01-063428-141Le 27 novembre 2015

of it... whatever they say shouldn’t be disclosed, 1

shouldn’t be disclosed. But for the purposes of... 2

The new evidence only affects the order in relation 3

to 287, sub iii. So that would be the only thing 4

that would change in terms of the order. 5

LA COUR: 6

And 286, which is just the declaration. 7

Me LACY: 8

Sorry, and the declaration at 286. Quite right. 9

LA COUR: 10

Alright. 11

Me LACY: 12

So those are my submissions. Again, I hope I’ve 13

been very clear for the record, Your Honour, 14

that... 15

LA COUR: 16

You’re very clear. 17

Me LACY: 18

Okay. Thank you. 19

LA COUR: 20

Do all Defence counsel, with respect to all of the 21

other accused, aside from Mirarchi, agree with the 22

positions taken by mister Lacy? 23

Me MACDONALD: 24

We do for mister Simpson, Your Honour. 25



- 4029 -

C.S. 540-01-063428-141Le 27 novembre 2015

LA COUR: 1

We’ve already established earlier that there’s a 2

Defence counsel for each of the other accused 3

present. Does anybody not agree with mister Lacy? 4

Okay. Since you are standing up, Mister Battista, 5

can you speak for everybody... 6

Me BATTISTA: 7

Yes. 8

LA COUR : 9

... all of the other six accused, that everybody 10

agrees with mister Lacy’s position? 11

Me BATTISTA: 12

Yes. As mister Lacy has said, we’ve discussed this 13

extensively amongst ourselves and we’ve discussed 14

it with the other party as well, and he speaking on 15

behalf of everyone. 16

LA COUR: 17

Is it also your preference that we leave the first 18

decision under Common Law privilege as is, subject 19

to redaction, and have a separate addendum to 20

(inaudible) the judgment? 21

Me BATTISTA: 22

Yes. 23

LA COUR: 24

Okay. Mister Kapoor, I know you’re leaving soon. 25



- 4030 -

C.S. 540-01-063428-141Le 27 novembre 2015

Me KAPOOR: 1

Yes, I can address you very briefly on just the 2

process points. I think that you should have a 3

separate judgment for the Common Law ruling, as 4

mister Lacy suggests, and then a separate judgment 5

for the Section 37 application. And obviously it 6

can be much shorter and it can reflect what mister 7

Lacy’s position is, as I understand, joined with 8

the Crown. But there is a benefit to having two 9

separate sets of rulings as it will make clear to 10

the Court – the Court of Appeal anyway – your 11

thought processes in both applications. 12

As you’re aware, they’re separate and distinct 13

applications, the 37 application from the Common 14

Law. So I would urge that upon you. I can say 15

this much publicly, as far as the position that 16

Defence has taken, and my respectful submission: 17

It changes nothing else in the order, other than 18

simply what they have sought to concede before you. 19

The balance of your order applies in the Common 20

Law, and the balance of your order applies in the 21

Section 37 application. 22

LA COUR: 23

With respect to the position taken by the Defence 24

in moving number iii to the « save and except » to 25



- 4031 -

C.S. 540-01-063428-141Le 27 novembre 2015

cover it by privilege, is your position that you 1

agree with that; do you have any comments on that? 2

Me KAPOOR: 3

My respectful submission is that that is an 4

appropriate concession to make. If I had known 5

that evidence at the front end, my submissions to 6

you would have been a little bit different, they 7

wouldn’t have been put in the way that I put them 8

to you. So I think the Defence position is 9

sensible. 10

LA COUR: 11

We can only act on the evidence in front of us. We 12

like to think that not only the judge but all 13

counsel are experienced and know how to proceed in 14

a case. The judge can only act on the evidence in 15

front. And if for some reason evidence isn’t put 16

in front of the judge, the judge can’t rule on it. 17

To bring that evidence forward at this point, I 18

have reservations about that. And I understand 19

mister Lacy’s position the other day, because the 20

abundance of work in the Court of Appeal they might 21

just say: Well... 22

I’ve experienced that myself as counsel, and 23

it’s a likely outcome. 24

25



- 4032 -

C.S. 540-01-063428-141Le 27 novembre 2015

Me KAPOOR: 1

One thing I will say is... and I don’t mean 2

this... just to sort of underscore it for you: 3

Section 37 is a separate process and application. 4

If there’s something that counsel wasn’t able or 5

didn’t twig to on the Common Law side, one of the 6

virtues of Section 37 is it allows for a more 7

complete record to be put before you if necessary. 8

I’m not trying to make excuses for anything, 9

but just sort of procedurally, and... 37 is a 10

separate application, it has that doctrinal benefit 11

if need be. That having been said, my position and 12

submission to you would have different had I known 13

the Blackberry information and the officer’s 14

information. 15

LA COUR: 16

Had the basis for the Section 37 application, had 17

the legal basis for that related to some different 18

principle, had there been something different, I 19

can understand it. 20

Me KAPOOR: 21

Of course. 22

LA COUR : 23

But everybody has agreed on record, particularly 24

the Crown, I asked them if there’s any other 25



- 4033 -

C.S. 540-01-063428-141Le 27 novembre 2015

principle or underlying basis for 37 that they feel 1

is different than the Common Law... You heard the 2

answer. 3

Me KAPOOR: 4

Yes, no, I understand. 5

LA COUR: 6

So I understand your position. There was also 7

ample time with all the delays that took place 8

after the Crown heard all of the arguments – 9

whether they be from the Defence, yourself, or 10

certain comments that I’ve made at whatever hearing 11

-- to call further evidence. Be that as it may, 12

Defence counsel have to evaluate their strategy in 13

going forward, and I have no input in their 14

strategy. I have to consider it and see if I 15

agree. 16

I did agree, based on the position of mister 17

Lacy, which to me was a reasonable one, that we 18

allow the Crown to call that evidence. And I hear 19

him today with respect to the new position. The 20

only reason there’s a new position on that key 21

point – that can be used in a double way, the key 22

point – is because there’s new evidence that 23

wasn’t presented earlier. Otherwise, he might have 24

taken a different position, and as you said 25



- 4034 -

C.S. 540-01-063428-141Le 27 novembre 2015

yourself, you might have taken a different 1

position. And I don’t know what I would have done. 2

But the evidence is presented now, and I’ll 3

evaluate what everyone is saying. 4

So basically, as amicus, your position is that 5

the position by the Defence that they feel that the 6

key should not be privileged in view of the new 7

evidence added to the record on the Section 37 8

application, you feel that that’s a valid position 9

and it should be covered by privilege as a result 10

of the new evidence? 11

Me KAPOOR: 12

Yes. And more particularly, the Defence has 13

asserted before you, as I understand it, that it’s 14

not necessary for full answer and defence, given 15

this new information. Otherwise producible, but 16

not necessarily for full answer and defence, and 17

therefore covered by the privilege. 18

LA COUR: 19

Alright. And that’s accurate, Mister Lacy, that 20

you don’t need it for full answer and defence? 21

Me LACY: 22

Not based on the representations that have been 23

made in the affidavit... 24

25



- 4035 -

C.S. 540-01-063428-141Le 27 novembre 2015

LA COUR : 1

Not based on... Alright. 2

Me LACY: 3

... and what my friends have confirmed with 4

Blackberry. 5

LA COUR: 6

So based on the two documents, 17 and 18, and what 7

the Crown has told you that you related to the 8

Court, and based on your own investigation, you 9

feel that it’s not necessary to have that key for 10

full answer and defence, as mister Kapoor just 11

stated. I’ve got that right? 12

Me LACY: 13


LA COUR: 15

That’s your position. Okay. Thank you for that. 16

And I understand your position on the two 17

judgments. It might be clearer that way, whereas 18

one judgment rather than... 19

Me KAPOOR: 20

I think so. 21

LA COUR: 22

I understand. I’ll reflect on that, but it does 23

make sense what mister Lacy says on that point and 24

what you’re saying. And the Crown might agree with 25



- 4036 -

C.S. 540-01-063428-141Le 27 novembre 2015

that too, with respect to the mechanics of the 1

judgment. 2

Me ROULEAU: 3

Oui. 4

Me KAPOOR: 5

Thank you. If I could just take my leave of you 6

now, I have to attend to something else. Thank 7

you. 8

LA COUR: 9

Thank you. Anything else, Mister Lacy? 10

Me LACY: 11

No, thank you, Your Honour. 12

LA COUR: 13

Just before your go, mister Kapoor, on what mister 14

Lacy said with respect to all of the other 15

conclusions and orders and declarations that I’ve 16

made, his position is that they should remain the 17

same under the Section 37 application. I take it 18

that’s your position as well? 19

Me KAPOOR: 20

Yes. This new evidentiary offering does not affect 21

your ruling on any of the other issues. 22

LA COUR : 23

Okay. 24

25



- 4037 -

C.S. 540-01-063428-141Le 27 novembre 2015

Me KAPOOR: 1

That ruling remains based on the evidence, and... 2

as it is, this new information is not attached to 3

that. 4

LA COUR: 5

Alright. Thank you for your presence today. I 6

understand you have a family matter to attend to, 7

so you’re excused. 8

Me KAPOOR: 9

Thank you. 10

LA COUR: 11

Thank you very much for your presence. 12

Maître Rouleau, just on the mechanics, the way 13

the amicus and mister Lacy have recommended it, is 14

that your position as well: Leave the judgment as 15

is, the Common Law privilege judgment, and follow 16

up with a shorter judgement, call it an addendum if 17

you will, under Section 37? Is that your position 18

as well? 19

Me ROULEAU: 20

Yes. That is certainly one way to go that is 21

correct. 22

LA COUR: 23

Is there anything else that you want to argue under 24

Section 37, other than the global key? 25



- 4038 -

C.S. 540-01-063428-141Le 27 novembre 2015

Me ROULEAU: 1

The only comment I want to make... This doesn’t 2

change anything that has been said before you... 3

LA COUR: 4

I’m sorry to interrupt you. If the other portions 5

of the orders, if you’re not arguing that they 6

should be different under Section 37 than under the 7

next judgment, I’ll either agree or disagree with 8

the position taken here on the global key but I’ll 9

indicate that under the Section 37 application, the 10

other orders will all remain the same. 11

Me ROULEAU: 12

Yes, that’s what we expect, because as we have 13

discussed before, the evidence that was produced 14

here doesn’t change the factual basis of the other 15

orders that you’ve made, save for... I would just 16

point out one exception, in the sense that mister 17

Boismenu’s report, the public report, goes also to 18

data integrity and the possibility of tampering. 19

But that had been a part of his previous report to 20

which you referred earlier. 21

So the Defence position on that issue was made 22

clear, ours also was made clear, but in all 23

fairness since the affidavit and the report is in 24

front of you, it does speak to that matter in the 25



- 4039 -

C.S. 540-01-063428-141Le 27 novembre 2015

sense it gives... 1

LA COUR: 2

But that wouldn’t... data tampering would relate 3

to what in your point of view? 4

Me ROULEAU: 5

To 287, subsection ii, the role if any of Research 6

in Motion in the interception and decoding process. 7

And obviously now the tricky part is that what... 8

How it relates to that is obvious to everyone. But 9

how that could affect any of your orders, I cannot 10

make publicly. But it’s not... what I can say 11

publicly is that all that was necessary to say was 12

said before on this matter. 13

LA COUR: 14

Show me the portion of Boismenu’s report that deals 15

with that. Just refer me to the part that... 16

Me ROULEAU: 17

Of course, in the affidavit it is... 6: 18

« It is also my professional opinion 19

that the process followed during the 20

decryption phase offers certitude in 21

the fact that data integrity was 22

maintained in its entirety. » 23

And in his report, I would take you to... 24

Actually, it’s the whole section where... 25



- 4040 -

C.S. 540-01-063428-141Le 27 novembre 2015

LA COUR: 1

What page? 2

Me ROULEAU: 3

In his report, starts at page 5, where mister 4

Boismenu explains the process used in the exchange 5

of messages, and especially Sections 23 to 25, 6

which is the last one, which address the 7

possibility of data tampering between the sending 8

of a message and the receiving of a message. 9

LA COUR: 10

What’s your position on how this should affect my 11

conclusions? 12

Me ROULEAU: 13

I need to make that submission ex parte, Your 14

Lordship. 15

Me KAPOOR: 16

No, just a minute, just a minute. 17

Me LACY: 18

I’m sorry... 19

Me KAPOOR: 20

I want to address you on this. I had no 21

understanding, I had absolutely no understanding 22

that this public information would somehow attach 23

to anything beyond the global key. If that was my 24

friend’s position, he ought to have told me before. 25



- 4041 -

C.S. 540-01-063428-141Le 27 novembre 2015

He did not tell me that before. 1

Moreover, I fail to see how – you know the 2

closed record, I know the record, he knows the 3

record – I fail to see how this affects anything 4

in the closed record, this concept of data 5

tampering. And frankly, if there’s an issue about 6

data tampering, he’s put it in the public domain. 7

If my friends want to argue about it on the merits 8

of the case, they can argue about it on the merits 9

of the case. But it has nothing to do with the 10

closed material. 11

We don’t need to go into camera to make that 12

submission, unless there’s something particular 13

that he wants to do. And if he does want to do it, 14

send me his written submissions and I’ll respond to 15

them. 16

Me LACY: 17

Sorry, can I rise too, Your Honour? Because I just 18

made a concession with respect to number iii of 19

paragraph 287 with the express representation being 20

made by the Crown that this would not affect any 21

other aspect of your order. Now I’m being told 22

that they want you to reconsider sub-paragraph iii. 23

With all due respect, I feel like I’ve been 24

suckered into taking a reasonable position based 25



- 4042 -

C.S. 540-01-063428-141Le 27 novembre 2015

upon what we understood would happen with the 1

consent, what we understood would happen on the 2

basis of the affidavit evidence, and now the Crown 3

wants to say: Oh! now this new public information 4

affects not only the global encryption key, but 5

also your order about understanding the role, if 6

any, of RIM/Blackberry in the encryption process. 7

With all due respect, that completely 8

undermines the concession or the circumstances 9

under which the Defence made the concession. So I 10

have tremendous difficulty with my friend’s 11

position. 12

LA COUR: 13

Before we go further, because it does seem like an 14

incongruous position, I think we’ll take a break to 15

allow the lawyers to speak to each other. My 16

interventions are just... I want to be clear on 17

what the positions of Crown, Defence and the amicus 18

area. 19

Just before we break, I understand that a lot 20

of material in the draft judgment was redacted, but 21

I may have something to say about some of these 22

redactions. I haven’t seen them, I just received 23

the document... I may not agree with that. 24

25



- 4043 -

C.S. 540-01-063428-141Le 27 novembre 2015

Me LACY: 1

Of course. 2

LA COUR: 3

So we can take a break now. And I’m not going to 4

address the redactions unless mister Kapoor is 5

present. So we’ll take a break for... Have you 6

got three, four, five minutes, maître Kapoor? 7

Me KAPOOR: 8

Yes, (inaudible). 9

LA COUR: 10

So I suggest we take a break now. The next step 11

would be to come back just to clarify this 12

position. I don’t know if there’s any other work 13

to be done today other than scheduling, but we’re 14

going to fix time next week so I can prepare this 15

judgment. But I also think it’s necessary to 16

review the redacted portions. There’s some things 17

that just don’t have to be redacted. 18

Me ROULEAU: 19

So we can address that separately, but I think... 20

LA COUR: 21

We heard the same testimonies, so... 22

Me ROULEAU: 23

Yes. Well, both maître Kapoor and us came to a 24

conclusion. Because we felt that was the best way 25



- 4044 -

C.S. 540-01-063428-141Le 27 novembre 2015

in order for us not to have the appeal process 1

totally... 2

LA COUR: 3

No, it was the best way for you to have the draft 4

judgment redacted so you could get it to Defence 5

counsel right away so they could review it. 6

Because if I had to come in and have a hearing on 7

that point, they wouldn’t have got it right way. 8

So in that respect, it was expeditious to proceed 9

that way. But now that they’ve reviewed it, they 10

have taken a position, before we go further... 11

I may not decide to unredact certain 12

paragraphs but I may... I have not received that 13

document yet, I’m not blaming you, the time was 14

tight. But I will look at it and I may wonder: 15

Why did you protect certain portions of that 16

judgment that don’t need to be? And I’ll indicate 17

why, and I’ll hear from you and mister Kapoor. And 18

that won’t be done today. 19

Me ROULEAU: 20

Okay. 21

LA COUR : 22

Okay. So we’ll take a short break. 23

-- À 12 H 11, SUSPENSION 24

-- REPRISE À 12 H 56 25



- 4045 -

C.S. 540-01-063428-141Le 27 novembre 2015

Me FRANK ADDARIO, 1

procureur de monsieur Mirarchi: 2

Good afternoon, Your Honour. And thanks very much 3

for the opportunity to meet. Counsel did have an 4

opportunity to meet and we were able to keep mister 5

Kapoor behind from his other obligation for a few 6

minutes. We are all of the view, all counsel, that 7

the most efficient thing to do would be to put the 8

matter over to Monday morning. Counsel are going 9

to be back, in any case, for redactions, and we’ll 10

have further brief submissions we anticipate on the 11

issue that arose just before we broke. 12

LA COUR: 13

All right. We’ll do that. Do I understand on 14

Monday there will be an ex parte hearing with 15

respect to the redactions? 16

Me ADDARIO: 17

There may be. Counsel, I think what they want to 18

do is to make some submissions to you initially 19

about the redactions and then... Maybe we can try 20

to address the issue that arose before we broke 21

before you have to close the courtroom for the 22

redacting. 23

LA COUR: 24

Alright. And then I’d like to look at the schedule 25



- 4046 -

C.S. 540-01-063428-141Le 27 novembre 2015

as well. 1

Me ADDARIO: 2

On Monday? 3

LA COUR: 4

You want to do it Monday? 5

Me ADDARIO: 6

I think all counsel agree that we ought to do it 7

Monday. And again, that would have to happen 8

before the courtroom is closed down and turns into 9

an ex parte courtroom. 10

LA COUR: 11

If you’re not able to answer, you’re not able to 12

answer: Do you anticipate using the days in 13

December that are already fixed? Because I 14

anticipate you’re probably going to... or someone 15

is going to, Crown or you... Some say you can’t, 16

some say you can. But if the judgment would remain 17

the way that it was with the Common Law, I take it 18

the Crown would go on appeal. And if that takes 19

place, do we have other motions we’re going to deal 20

with in the month of December? 21

Me ADDARIO: 22

You can be satisfied, Your Honour, that topic is 23

under active discussion between all counsel on this 24

case. We’ve had at least two meetings on the topic 25



- 4047 -

C.S. 540-01-063428-141Le 27 novembre 2015

and we anticipate another one Monday morning. 1

LA COUR: 2

You’d rather deal with it then? 3

Me ADDARIO: 4

We would, sir. 5

Me LACY: 6

Except for mister Larochelle, which mister Shoofey 7

is going to address. 8

Me ADDARIO: 9

Yes, mister Shoofey is going to address you on the 10

issue of mister Larochelle’s intentions. And I 11

have one more matter before I sit down. 12

LA COUR: 13

Go ahead. 14

Me ADDARIO: 15

Before you said what you said this morning about 16

returning copies of the draft redacted reasons, I 17

was going to pass them to my client through the 18

customary way that we pass papers while they’re 19

here. And I would just like some guidance about 20

getting some form of the reasons to my client. If 21

Your Honour has directions about that, if you could 22

say it in an open court, that would be of 23

assistance to Mr. (inaudible). 24

25



- 4048 -

C.S. 540-01-063428-141Le 27 novembre 2015

LA COUR: 1

Thanks for raising that, mister Addario. I think 2

the best way to deal with that, because it is a 3

draft judgment, in order to... It’s a two-pronged 4

argument on the privilege: One is based on legal 5

precedent – and I’m addressing myself to the 6

accused – legal precedent based on previous 7

decisions from the Court, we call that the Common 8

Law; and the other argument on the privilege, it’s 9

in a formal statute, the Canada Evidence Act. 10

So there’s two ways a privilege can be raised. 11

So the prosecutors first raised it under the 12

precedent route, Common Law. As you heard today... 13

or last week actually, but they followed up today, 14

they’re also making an application under the Canada 15

Evidence Act, under the law, which they’re allowed 16

to do. The principles, as you’ve heard earlier, 17

are the same. 18

And you’ve also heard that because of a change 19

in... Let me put it like this: New evidence has 20

been submitted in the form of these affidavits and 21

reports this morning. That affected all of your 22

lawyers’ positions with respect to a certain point. 23

They’ve asked me to prepare a judgment on the 24

statutory part, the Canada Evidence Act portion. 25



- 4049 -

C.S. 540-01-063428-141Le 27 novembre 2015

I’ve already rendered a decision under the 1

Common Law privilege which isn’t changing, although 2

based on what I heard today I might make certain 3

modifications to it, but the judgment and the 4

conclusions are the same. There will be another 5

judgment, based on what you heard today. 6

So having said that, I’ve asked the lawyers, 7

and you’ve heard me, I want them to give me back 8

the draft judgment, because it is a draft judgment, 9

to allow them to continue with this privilege 10

argument. The Common Law one is dealt with, 11

they’re dealing with the Canada Evidence Act, a 12

law, a formal codified law. 13

So what I will do: There will be, most 14

likely, subject to what I decide when we adjourn, 15

what all the lawyers are suggesting is that I have 16

two judgments: One under Common Law, and then 17

based on what happened today, a second judgment 18

under the Canada Evidence Act. I see your 19

reactions, I think you’re following me. 20

And at that point, I’ll file two judgments, 21

both of which will be formal judgments and they 22

will be signed, and you’ll get copies of those. 23

Just like today, for example, mister Simpson, I 24

rendered a judgment orally on July 20th with respect 25



- 4050 -

C.S. 540-01-063428-141Le 27 novembre 2015

to an issue involving yourself; I filed it today in 1

writing. Your lawyer asked for it, but I would 2

have done it anyway. So that’s a signed judgment, 3

you can have a copy of that. If ever it comes to 4

my attention there’s an error in the judgment, for 5

example, this morning there was a typographical 6

error on a judgment rendered last November, I 7

corrected it and the pages are submitted, but the 8

conclusions don’t change. You follow me? 9

So you will get these two formal judgments. I 10

submitted a draft on the Common Law privilege 11

judgment to expedite the matter, to get things 12

moving to allow your lawyers to know what was going 13

on. The prosecutor blacked out some portions that 14

they still feel is privilege, and it’s their right 15

to do that. I might question it, but they can do 16

that. 17

So if mister Addario shows you a copy of this 18

judgment, it’s not a formal judgment, and I would 19

ask that it be reviewed with him while he’s with 20

you. Well... with respect to you, Mister 21

Mirarchi, he’s your lawyer. If the other accused 22

want to see this draft judgment, it can be done in 23

the presence of your lawyer because it’s not 24

formally signed and filed. They’re not going to 25



- 4051 -

C.S. 540-01-063428-141Le 27 novembre 2015

leave it with you. Does everybody understand that? 1

I think in a judgment in a complex area, as 2

you’ve heard from some of the arguments, it’s 3

better to look at it with your lawyer. Once a 4

formal judgment is filed, then certainly you can 5

ask your lawyer to have a copy, as you may have 6

done with some of the other judgments that have 7

been rendered. If any of you need to speak to your 8

lawyers, I can step out for a minute, unless you’re 9

indicating to me that that’s clear. Everybody is 10

nodding for the record, so it seems to be clear. 11

I guess the bottom line, mister Addario: You 12

can take the draft judgment as is, any of the 13

lawyers can, and you can show it to your client but 14

not leave it with them because it’s not formally 15

filed yet. Show it to them, have whatever 16

discussion that is appropriate, but don’t leave it 17

with them. 18

Me ADDARIO: 19

Thanks for the guidance, Your Honour. 20

LA COUR: 21

Anything else needed on that explanation? Is that 22

satisfactory, what I said to your clients, the 23

accused? 24

25



- 4052 -

C.S. 540-01-063428-141Le 27 novembre 2015

Me ADDARIO: 1

Yes, they’re indicating they understand, sir. 2


Yes, sir. 4

LA COUR: 5

Any of the other counsel have any comments based on 6

my remarks? No? Okay. Go ahead. 7

Me SHOOFEY: 8

Just on the scheduling issue, Your Honour, as 9

mister Addario has pointed out, yes, we will be 10

discussing that on Monday. But maître Larochelle 11

did tell me that there is one motion, it was spoken 12

with friends from the Crown, the bail hearing of 13

mister D’addario, his client, that could move on 14

and... 15

LA COUR: 16

He wants to do it now? 17

Me SHOOFEY: 18

He wants to do it, yes. He was waiting for the 19

decision to be rendered here and now he would be 20

ready to do this. He has offered a few dates, 21

ideally would be Fridays because maître Emond would 22

be available, but he is flexible. But they had 23

spoken about the 11th and the 18th of December, two 24

Fridays. 25



- 4053 -

C.S. 540-01-063428-141Le 27 novembre 2015

LA COUR: 1

I’m going to tell you something here: Every time a 2

motion has been scheduled here, it’s totally under 3

evaluated. Look what happened with Racaniello’s 4

bail hearing. I’m not fixing a date today. 5

Me SHOOFEY: 6

Okay, so Monday (inaudible)... 7

LA COUR : 8

It’s the first I hear of it. I haven’t heard about 9

this motion for a while. I heard at one point that 10

it might be four days, it might be less. I don’t 11

want to fix two Fridays and we’re stuck with two 12

weeks. 13

Me SHOOFEY: 14

Okay. But that will be a motion that he would be 15

ready to do before the holidays. 16

LA COUR: 17

No, I understand. 18

Me SHOOFEY: 19

So I’ll bring back specific dates for maybe three 20

days or four days to be sure. 21

LA COUR: 22

I think at the same time I want to hear from the 23

other Defence counsel what other motions are going 24

to go ahead so we can schedule it appropriately. 25



- 4054 -

C.S. 540-01-063428-141Le 27 novembre 2015

If it was an urgency, it would have been presented 1

much earlier. We had dates fixed available that we 2

didn’t proceed for reasons of discussions and the 3

things that mister Larochelle stated, which I won’t 4

repeat. 5

But I don’t think we’re going to... Not « I 6

don’t think »; we’re not fixing dates now. We’re 7

going to wait until next week and see what happens 8

with this privilege matter, and we’re going to see 9

what steps will be taken and what other motions are 10

available and ready to go, and then we’ll look at 11

the state of the schedule. 12

Me SHOOFEY: 13

Understood. I will relay the message to maître 14

Larochelle. 15

LA COUR: 16

Did he tell you, as we speak today, how much time 17

he feels he needs for that motion? 18

Me SHOOFEY: 19

He told me two days. 20

LA COUR: 21

Do you know how many witnesses are being called? 22

Me SHOOFEY: 23

That I don’t have (inaudible). 24

25



- 4055 -

C.S. 540-01-063428-141Le 27 novembre 2015

LA COUR: 1

I think before we fix a date, in all fairness to 2

you, maître Shoofey, because you’re the 3

spokesperson for him, I think if someone is going 4

to be taking up court time, one of the lawyers, one 5

of them, whether it’s maître Emond or maître 6

Larochelle, they should be here. 7

Me SHOOFEY: 8

Okay. 9

LA COUR: 10

Because I may have questions that you may not... 11

well, you’re... 12

Me SHOOFEY: 13

Obviously, I... 14

LA COUR : 15

... you can’t answer, in fairness to you. So you 16

can convey that and we can take it from there. 17

I’ve been looking at these documents that were 18

filed today, 25.17, I haven’t looked at it in 19

detail, but... you can address this Monday if you 20

like, but without having decided anything, you can 21

enlighten me on this on Monday. On these 22

paragraphs that you referred to in Boismenu’s 23

report, Maître Rouleau, 25.17, if I look at 24

paragraph 24, on page 7, they talk about the impact 25



- 4056 -

C.S. 540-01-063428-141Le 27 novembre 2015

of disclosing the key and how easy it would and 1

what an encroachment upon privacy it would be. 2

But the last paragraph, paragraph 24, the 3

last... the third paragraph, that it would mean 4

unlocking doors of all houses of people, it would 5

be the equivalent of that... But then if you look 6

at paragraph 25, they indicate how hard it would be 7

to do that. Perhaps I’m misreading it, so you can 8

enlighten me on that. I understand the Defence 9

position is based on the new evidence today and 10

this is the new evidence, but either it’s a key 11

that would unlock the doors of houses, that anybody 12

can have access to that, or, paragraph 25, it’s 13

almost impossible to do that. 14

Me ROULEAU: 15

Yes, well... 16

LA COUR: 17

Not now, Monday. Are you going to be here Monday? 18

Me ROULEAU: 19

Of course. 20

LA COUR: 21

I don’t know if I’m going to render this decision 22

Monday on the Section 37 because I want to hear 23

from you first, so it won’t be Monday. But are you 24

going to be here when I render that judgment? 25



- 4057 -

C.S. 540-01-063428-141Le 27 novembre 2015

Me ROULEAU: 1

Of course. 2

LA COUR: 3

I would strongly recommend it. 4

Me ROULEAU: 5

Your Lordship, I make it a point of... There are 6

very compelling reasons why I needed to be 7

somewhere else the other day, and if I could have 8

arranged for any other solution I would have done 9

so. 10

LA COUR: 11

There’s an easy solution: You speak to other 12

counsel, you contact my assistant, and... you were 13

here in the afternoon, you postpone it to 2:00. 14

Me ROULEAU: 15

Yes, that we should have done, I agree with you. 16

LA COUR: 17

Because in general, when there’s a lead counsel on 18

a motion and positions are taken and comments are 19

made and a judgment is rendered and that counsel is 20

not here, one could look at that as being an insult 21

to the Court. 22

Me ROULEAU: 23

And that is why the first thing I said... I do 24

agree with you that it should had been done before 25



- 4058 -

C.S. 540-01-063428-141Le 27 novembre 2015

to warn the Court... 1

LA COUR: 2

You definitely told me that you weren’t here and 3

why. 4

Me ROULEAU: 5

Yes. But we felt –- actually, I felt; I’m not 6

putting anybody else into the bath -– but I felt 7

that to use the Court’s time as efficiently as 8

possible, the fact that my colleagues were here, 9

they do represent the Crown and who do speak in the 10

name of the Crown just as much as I do, could, if 11

anything arose, make it so that representations 12

could be made. We felt that that made it so that 13

we didn’t lose the morning. But I do take into 14

account the Court’s comment, and... 15

LA COUR: 16

We had time to do it in the afternoon. The reason 17

why I brought it up again is because I want to make 18

sure you’re here when we do the addendum to the 19

judgment, if we proceed that way. What happened 20

last week is after being absent for the delivery of 21

the judgment, you stood up here and you made 22

certain comments and arguments which were presented 23

without having heard the judgment rendered that 24

morning. 25



- 4059 -

C.S. 540-01-063428-141Le 27 novembre 2015

I understand you were brief, but it was a long 1

judgment. And you obviously -- it was clear to 2

me listening to you -- you weren’t aware of 3

everything that was said. So having said that, it 4

would have been a better use of Court time to not 5

hear those arguments until you were fully apprised 6

of the judgment, either getting it in writing or, 7

even better, being present when it was being 8

delivered orally. 9

So hopefully that will... That’s why I asked 10

you if you’ll be here for the second judgment. And 11

I hear from you you will, and that’s good. 12

Me ROULEAU: 13

Yes. 14

LA COUR: 15

Let’s move along. Is there anything else for 16

today? 17

Me ROULEAU: 18

No. Save to... I think it would be safe to say 19

10:00 Monday morning? 20


Yes, sir. 22

Me ROULEAU: 23

We would ask for the Court to reconvene at 10:00 24

because we’re going to need obviously to... 25



- 4060 -

C.S. 540-01-063428-141Le 27 novembre 2015

LA COUR: 1

That’s fine. 2

Me ROULEAU: 3

We’re doing it before 9:30, but we believe that it 4

will take some time, especially the scheduling 5

issue. 6

LA COUR: 7

No, I understand, they’re coming in from Toronto. 8

If you need more time, as I mentioned before, if 9

you need more time in the morning like you did 10

today, you let me know, it’s fine. Do you think 11

you’ll need more than until 10:00? 12

Okay. Let’s look at what we have to do Monday, 13

how we’re going to use the day. This issue that 14

was brought up on page 7, where mister Kapoor 15

intervened, we’re going to deal with that. So 16

we’ll deal with the issue where there was 17

objections by both mister Kapoor and mister Lacy 18

before the break, and anything else dealing with 19

the privilege issue. 20

I also want to have a handle on the scheduling 21

issue, we have a courtroom, we have staff, we have 22

dates fixed, so I want to know that they’re going 23

to be used. And there’s also the question of the 24

redaction. So I think that the issue with... Is 25



- 4061 -

C.S. 540-01-063428-141Le 27 novembre 2015

maître Kapoor going to be here Monday? He is. 1

Me ADDARIO: 2

He can, sir. In fact he’s free Monday and Tuesday, 3

but that’s it next week, as I understand it. 4

LA COUR : 5

Alright. 6

Me ADDARIO: 7

Monday and then Tuesday morning, and then that’s 8

it... 9

LA COUR: 10

The issue to finish off would be Section 37 11

privilege; that shouldn’t take too long. 12

Me ADDARIO: 13

It shouldn’t. Our anticipation and hope is that it 14

won’t take too long. 15

LA COUR: 16

Alright. Then we’ll have a discussion on the 17

scheduling. And then I’ll like to go ex parte with 18

mister Kapoor and the Crown and look at some of the 19

redacted portions to see if there’s any way that 20

you can get more information in that judgment. It 21

might not happen, but it might. 22

I understand it was sent to my office, Maître 23

Godbout, yesterday. My assistant has been away and 24

I didn’t get it. So that’s no reflexion on you 25



- 4062 -

C.S. 540-01-063428-141Le 27 novembre 2015

because I’m told that you sent it. 1

Me MARIE-CHRISTINE GODBOUT, 2


Okay, thank you. 4

Me ADDARIO: 5

She has good sending skills! 6


Second only to mister Hébrard! 8

LA COUR: 9

Both of them, maître Hébrard and maître Godbout are 10

very efficient... 11

Me ADDARIO: 12

Very good senders! So, having had a chance to 13

canvass and think about your suggestion, could I 14

propose an 11:00 a.m. starting time on Monday, just 15

given the agenda of out-of-court discussions that 16

need to take place? 17

LA COUR: 18

Yes. We’ll start at 11:00. If ever you see that 19

you need more time, you let... 20

Me ADDARIO: 21

Madame (inaudible)? 22

LA COUR : 23

You can advise the clerk. You’ll be here Monday? 24

25



- 4063 -

C.S. 540-01-063428-141Le 27 novembre 2015

Me ADDARIO: 1

Oh yes. 2

LA COUR: 3

So if you’re here and you realize you need more 4

time, just let the clerk know, or as you say, the 5

registrar, and she knows what to do to let me know. 6

Me ADDARIO: 7

Thank you very much. 8

LA COUR: 9

Is that suitable? 10

Me ADDARIO: 11

Very suitable. 12

LA COUR: 13

Mister Rouleau, anything else? 14

Me ROULEAU: 15

No. 16

LA COUR: 17

Any of the other Defence counsel have any remarks 18

to make? I understand that the Crown team has 19

changed. 20

Me ROULEAU: 21

Somewhat, yes. 22

LA COUR: 23

Could you just publicly state who the lawyers are? 24

I understand that my assistant has been advised, 25



- 4064 -

C.S. 540-01-063428-141Le 27 novembre 2015

but I want to make sure it’s stated publicly and 1

all the Defence lawyers are aware. Go ahead. 2

Me ROULEAU: 3

There’s maître Gauthier, of course. Maître 4

Godbout. Maître Hadjis, who is present today. 5

Starting Monday morning, maître Henningsson, Sara 6

Henningsson (ph). 7

LA COUR: 8

And yourself? 9

Me ROULEAU: 10

And myself. 11

LA COUR: 12

Okay. So the four of you? 13

Me ROULEAU: 14

The five of us on a full-time basis. 15

LA COUR : 16

Excuse me, five, okay. 17

Me ROULEAU: 18

But I wish to point out that maître Geneviève 19

Gravel also is a member of the team. She had other 20

matters to attend to and she is working on a part- 21

time basis. So there’s a total of six lawyers. 22

LA COUR: 23

I recall she was here with maître Doré. 24

25



- 4065 -

C.S. 540-01-063428-141Le 27 novembre 2015

Me ROULEAU: 1

Yes, of course. 2

LA COUR: 3

She left, and now she’s coming back part-time? 4

Me ROULEAU: 5

Yes. She’s always been in the picture on a part- 6

time basis. 7

LA COUR: 8

Maître Doré is not on this file anymore? 9

Me ROULEAU: 10

Exactly. 11

LA COUR: 12

Alright. So it’s the four of you and the new 13

counsel who will be here Monday? 14

Me ROULEAU: 15

Yes. 16

LA COUR: 17

Do you anticipate any other changes as we go 18

forward? 19

Me ROULEAU: 20

No. 21

LA COUR: 22

Alright. Thank you for letting me know. 23

Me MACDONALD: 24

Your Honour, one last thing. 25



- 4066 -

C.S. 540-01-063428-141Le 27 novembre 2015

LA COUR: 1

Yes? 2

Me MACDONALD: 3

Is it possible to ask for mister Simpson not to be 4

here Monday? 5

LA COUR: 6

Why? 7

Me MACDONALD: 8

He’s just tired, he wants to work on the case in 9

Bordeaux. No special reason, Your Honour. 10

Me ROULEAU: 11

No comments. No objection. 12

LA COUR: 13

Don’t you think it’s an important point that the 14

accused should be present? 15

Me MACDONALD: 16

I speak with mister Simpson everyday, Your Honour, 17

on the phone, I keep him informed. 18

LA COUR: 19

No, I understand. But, for example, imagine if he 20

wasn’t here today, there are a lot of things that 21

happened today, it’s good for an accused to be 22

present. I think with respect to this privilege 23

motion, I think it’s as I said before a key motion, 24

certain things that might be said. I’m more 25



- 4067 -

C.S. 540-01-063428-141Le 27 novembre 2015

comfortable if he’s present. 1

Me MACDONALD: 2

So he will be. 3

LA COUR: 4

Good. I think it’s a better idea if you’re here on 5

Monday, mister Simpson. There might be other 6

motions that are more peripheral, or that don’t 7

affect you as directly; this one affects everybody, 8

everybody is here, I think it’s important you’re 9

here. You’re represented by mister Macdonald, he’s 10

going to be here, and there might be something that 11

happens during the course of the hearing that you 12

may have questions. And I’m ordering you to be 13

present. Anything else? 14

Me ROULEAU: 15

No, we took care of everything. 16

LA COUR: 17

Thank you everybody for your presence. I’d like 18

to thank the Court staff, although we started late, 19

it’s 1:20, for continuing over the lunch hour. 20

Because although we started late, the Court staff 21

is working in any event. I’m talking about the 22

bailiff and madame Liberatore and the special 23

constables and all the other Court staff. 24

Thank you very much. I wish you all a good 25



- 4068 -

C.S. 540-01-063428-141Le 27 novembre 2015

weekend. We’ll see you Monday morning at 11:00. 1

If there’s a change, madame Liberatore will be 2

advised by one of the counsel and she’ll let me 3

know. Thank you very much. 4

5

FIN DE L’AUDITION 6

AJOURNÉ À LUNDI LE 30 NOVEMBRE À 11 H 00 7

8

__________________________ 9



- 4069 -

C.S. 540-01-063428-141Le 27 novembre 2015

Je, soussignée, RACHEL SAUVÉ, sténotypiste officielle, 1

certifie sous mon serment d’office que les pages qui 2

précèdent contiennent la transcription exacte et fidèle 3

de l’enregistrement, le tout conformément à la Loi. 4

5

Et j’ai signé, 6

7

8

9

______________________________ 10

RACHEL SAUVÉ, sténotypiste officielle 11

Membre 313050-9 au Tableau du Comité sur la sténographie 12

Commissaire à l'assermentation 203924 13



- 4070 -

C.S. 540-01-063428-141Le 27 novembre 2015

1



- 4071 -

C A N A D A C O U R S U P É R I E U R E Chambre criminelle

PROVINCE DE QUÉBEC

DISTRICT DE : LAVAL

CAUSE NO : 540-01-063248-141

ÉTAPE : REQUÊTES ARTICLE 37 ET REQUÊTE R-25/R-32 (SUITE)

PRÉSENTE : L’HONORABLE MICHAEL STOBER, J.C.S.

SA MAJESTÉ LA REINE,

Plaignante,

-C.-

RAYNALD DESJARDINS & AL,

Accusés

NOM DES PROCUREURS :

Me ROBERT ROULEAU/Me ALEXIS GAUTHIER/Me SARA HENNIGSSON Me FOTINI HADJIS/Me MARIE-CHRISTINE GODBOUT Procureurs de la Couronne

Me FRANK ADDARIO/Me MICHAEL LACY /Me MAXIME HEBRARD procureurs de l’accusé, Vittorio Mirarchi Me DOMINIQUE SHOOFEY, procureur de l’accusé Calogero Milioto Me GUISEPPE BATTISTA, procureur de l’accusé Steven Fracas Me JEFFREY K. BORO/Me ROBERT POLNICKY / Me ANNIE ÉMOND procureurs des accusés, Felice Racanniello, Pietro Magistrale, Steven D’Addario Me RONNIE MaCDONALD, procureur de l’accusé Jack Simpson

DATE D’AUDITION : Le 30 novembre 2015

TRANSCRIPTION REMISE : Le 24 janvier 2016

FICHIER : 540-01-063248-141-2015-11-30

Danièle F. Tassé, s.o., o.c.r.

Sténographe officielle bilingue

1891, rue Giroux Longueuil Qc J4N 1K6

Tél : (514) 248-2701 / Courriel : [email protected]


- 4072 -

- 2 - Danièle F. Tassé, s.o./o.c.r.

REQUÊTES ARTICLE 37 ET REQUÊTE R-25/R-32 (SUITE) 1

ORDONNANCE DE NON PUBLICATION MAINTENUE 2

LA COUR (L’HONORABLE MICHAEL STOBER, J.C.S.) : 3

All right. So I see that all of the accused are 4

present, counsel confirm that, yes. 5

Me FRANK ADDARIO, 6

Procureur de l’accusé, Vittorio Mirarchi : 7

Yes Sir. 8

LA COUR : 9

Fine. So all the accused are present. Go ahead. 10

Friday, you asked to postpone to a little later this 11

morning, so where are we at? 12

Me MICHAEL LACY, 13


Thank you, your Honour. If I might address it. 15

So we’ve had the opportunity to communicate with my 16

friends and again, in an effort to move the matter 17

forward and to complete the Section 37 application, I 18

understand that the Crown would propose -- they have a 19

short paragraph, I understand that they’d like to read 20

in in terms of their position on the new evidence. 21

LA COUR : 22

Before you say anything else, let me see the 23

paragraph please. 24

Me ROBERT ROULEAU, 25


- 4073 -

RAYNALD DESJARDINS & AL 540-01-063248-141 DISCUSSION DE PART ET D’AUTRE Le 30 novembre 2015


Procureur de la Couronne : 1

Sorry, your Lordship, I’m sorry. 2

LA COUR : 3

Before Mr. Lacy makes any further comment, I’d like 4

to see the paragraph. 5

LA COURONNE (Me ROBERT ROULEAU) : 6

It was transmitted in an e-mail, we would need to 7

print it. But I can read it, it’s not long, it’s a 8

couple of lines. 9

All right, okay. So what we transmitted to our 10

colleagues on the impact of the new evidence is the 11

following: 12

“ We believe that that new evidence 13

gives the Court additional information 14

that relate to data integrity prior to 15

the coding, hence from the time the 16

message is sent to the time it is 17

received. It that sense, it must be 18

considered by the Court in addition to 19

the report already submitted by the 20

Crown as Exhibit R-25-C-1-B. This being 21

said… ” 22

LA COUR : 23

Okay. This is more than two (2) lines, I’d like to 24

see it. 25


- 4074 -




We’re going to need to print it. 2

LA COUR : 3

Well, that should be done. It should’ve been done 4

before coming in. Please get me a copy, Maître Godbout. 5

Me MARIE-CHRISTINE GODBOUT, 6

Procureure de la Couronne : 7

Yes, your Honour. 8

LA COUR : 9

I see you’re reading from the defence’s computer. 10


Yes. 12

LA COUR : 13

So what is it that you’re trying to establish here? 14

I understood that on Friday, there was an agreement 15

with respect to the new evidence, it wasn’t on record, 16

on the common law privilege objection with respect to 17

R-25 and R-32, the defence’s request for disclosure. 18

You objected, as you’re entitled to do, based on 19

common law investigative techniques privileged. You 20

confirmed more than once to the Court that the factors 21

and principles underlying the common law investigative 22

techniques privileged are identical to the factors and 23

principles underlying the section 37 privilege. 24

The only difference is that the codified version 25


- 4075 -



under the Canada Evidence Act allows for an 1

interlocutory appeal, correct? 2


Exactly. 4

LA COUR : 5

This was reviewed both by yourself, the amicus and 6

defence counsel and everybody agreed with the comments 7

I just made. 8

So what happened last week with your arrival and 9

comments that you made and your dissatisfaction with 10

the judgement, you said you were calling new evidence. 11

So I asked you what evidence you were calling, you 12

didn’t know. 13

On Friday, I found out what that -- yes, that’s 14

what my notes reflect, you’re making an inquisitive 15

look, that is what my notes reflect. 16

I asked you the day that I rendered the judgement, 17

when you came in, in the afternoon, you made certain 18

comments and you indicated you wanted to call new 19

evidence, and I asked you why that wasn't done at the 20

first hearing, the common law investigative techniques 21

privilege and you said because you had confidence that 22

the Court would render a decision in your favour. That 23

is what you said. 24

I asked you what evidence you were going to call 25


- 4076 -



and you weren’t certain what it would be. I asked you 1

if it was someone from RIM, if it was someone from the 2

RCMP and you couldn’t establish that at that time. 3

On Friday, I was confronted with two (2) documents: 4

one, an affidavit from a RIM employee and one affidavit 5

from a police officer as well as his report, both of 6

them filed as exhibits. The defence consented to the 7

filing of this evidence, it’s new evidence, it did not 8

exist at the time of the first hearings, prior to the 9

common law investigative techniques privileged 10

judgement. 11

I don’t know why that wasn't produced at that time, 12

because it certainly is evidence that would’ve been 13

available at that time. 14

Be that as it may, for whatever strategical reasons 15

that only the defence knows, they have agreed to have 16

this evidence filed at this time and they’ve taken a 17

position with respect to the global key on the section 18

37 position, the objection that you’ve taken. 19

As far as I can… I understood and all of the 20

comments until the very end on Friday, the whole 21

exercise related only to the global key. And then we 22

had the amicus who intervened because of the position 23

you were taking trying to re-open that and defence 24

counsel asked for a postponement until today to allow 25


- 4077 -



you to have further time to discuss. 1

So if you can -- and I’m asking you after that, 2

what I’ve just reviewed, is that accurate in your view? 3


I do not believe so, your Lordship, on a couple of 5

issues and I’m sorry, but I… 6

LA COUR : 7

Okay. That’s fine. I asked you, just a moment. 8

Mr. Kapoor, is my reviewing, in your opinion, accurate? 9

Me KAPOOR, (ph) 10

Amicus curiae : 11

My position, yes. 12

LA COUR : 13

No, the review of what took place, what I just 14

related in Court. 15

Me KAPOOR : 16

As far as I can recall it, yes, in terms of the 17

chronology, when the information was produced, yes. 18

LA COUR : 19

Okay. And as far as defence counsel, with respect 20

to my résumé, what took place, obviously considering 21

the times that you were present in Court, when it 22

wasn’t ex parte , does that accurately reflect what you 23

were privy to? 24

LA DÉFENSE (Me MICHAEL LACY) : 25


- 4078 -



Yes, subject to that caveat . I think you’re 1

referring to an exchange that took place with 2

Mr. Rouleau, when we were not present. 3

LA COUR : 4

All right. 5

Go ahead, Mr. Rouleau… 6


Yes. 8

LA COUR : 9

… and I’d ask you to get to the point. 10


Sure. The mention was made in Court that we were 12

expecting an expert testimony on the issue of the 13

global key and I remember vividly the Court asked me in 14

a nutshell what this testimony would be about and I 15

tried then to sum up what was the gist of that report. 16

And I also mentioned the possibility of somebody 17

from RIM coming to the Court although that was in 18

progress and was uncertain. We did not know for sure if 19

we would have that testimony available at that time 20

which all got -- manifested itself in the documents 21

that were deposited on Friday, in front of you. 22

So we knew about that evidence and we had informed 23

the Court about the gist of the evidence before hand. 24

That is my recollection, your Lordship. 25


- 4079 -



LA COUR : 1

Well, that’s not entirely different. Did you know 2

or you didn’t know who you wanted to call as additional 3

witnesses or what additional evidence you wish to file, 4

you did not know specifically. There would be an expert 5

report. There might be someone from RIM, you didn’t 6

know who it was. 7


Exactly. 9

LA COUR : 10

Yes, so. 11


So that’s what I have to say on that matter. 13

LA COUR : 14

Fine, go ahead. 15


Well, at the end of the day, when all is said and 17

done, the Court asked me a question, the other day as 18

per the relevancy of the documents we had agreed to 19

deposit and that is where some misunderstanding came 20

about as to the -- how that new evidence affected the 21

evidence that was already presented. Hence -- and we 22

already know how that new proof affected the issue of 23

the global key. 24

But confronted with a question of the Court, I 25


- 4080 -



discussed the issue with my colleagues and the 1

statement that I have read to you and which is here 2

printed, is what is the gist of what we believe the new 3

evidence, how it relates to the data integrity issue. 4

LA COUR : 5

I see… 6


And that’s the agreement we came to. 8

LA COUR : 9

All right. I see that your colleague, Maître 10

Godbout, since you’ve began speaking, came in to the 11

Courtroom with the printed document. 12


Yes. 14

LA COUR : 15

And it could be appropriate if I had a look at it 16

now? 17


Of course, of course. 19

So it’s a copy of an e-mail that was sent to my 20

colleagues last Friday, I believe. 21

LA COUR : 22

It’s fine. Mr. Lacy, you agree that I consult this 23

document? 24



- 4081 -



Yes, your Honour. 1

LA COUR : 2

But the data integrity would really relate to the 3

argument or the position raised by Mr. Lacy that, in 4

view of the investigation he did, that if the key 5

wasn’t accurate, there would be no result. 6


It also relates to -- I have to put myself in their 8

shoes -- they’re wanting to know about RIM’s possible 9

implication in the interception process. In that sense, 10

the report complements the report that has already been 11

sent. 12

In that, we believe that it gives us standing to 13

argue eventually that with the proof as it is, data 14

integrity is assured, without needing to resort to 15

anybody from RIM or anybody else for that matter. 16

And on that we’re either right or wrong, but it 17

touches that question. But as I mentioned to my 18

colleagues in the last phrase, it doesn’t add an 19

argument, and we do not wish to rehash this question or 20

reargue that part. We’re content with this situation as 21

it is. 22

But given the Court’s question, we wanted to point 23

out that this report can be read in conjunction with 24

the report that had already been filed and has 25


- 4082 -



information on that issue. 1

So that’s it. 2

LA COUR : 3

I’d like to hear from defence counsel and the 4

amicus . 5


One moment… 7

LA COUR : 8

Absolutely, go ahead. 9


Thank you, your Honour. As Mr. Rouleau has 11

effectively conceded, this is more of the same on the 12

issue of the role of RIM, so from our perspective, it 13

doesn’t add anything to the evidentiary record as it 14

existed when it relates to the applicant’s position 15

that we’re entitled to know the role of RIM, if any, in 16

the interception process which is sub 2 of your order 17

at paragraph 287. 18

And, as you recall, I don’t know if you still have 19

the draft judgment which has now been marked as R-25-20

19-I. 21

LA COUR : 22

Yes, go ahead. 23


But at paragraphs 163 and 164, I don’t want to 25


- 4083 -



rehash arguments either but the idea that RIM had no… 1

that the RCMP will not confirm or deny whether RIM had 2

any role… 3

LA COUR : 4

Okay. I’m at 163. 5


Yes. You deal with that in a very straightforward 7

way at 163 and 164. You find it’s not even privileged, 8

as a matter of first instance, the role of RIM in the 9

interception process which means there’s no balancing 10

to the undertaking with respect to the investigative 11

privilege claimed. 12

So it’s really on that basis that, from our 13

perspective, even this added little bit that the Crown 14

would like to leave open, arguing that somehow the new 15

evidence on its face would impact your order with 16

respect to paragraph 287 and, in particular, 17

subparagraph 2, which was the role, if any, of research 18

and motion in the interception and decoding process. 19

We take the position it adds nothing to the 20

evidentiary record and it obviously doesn’t change your 21

conclusion that the issue is even one of privilege to 22

begin with. 23

LA COUR : 24

Okay. 25


- 4084 -




Thank you. 2

LA COUR : 3

Mr. Kapoor, any comments? 4

Me KAPOOR : 5

Just very briefly to say, without revealing 6

anything of the closed materials, the addition of this 7

content does not affect your conclusion having regards 8

to the closed materials. That is to say this 9

information is just not privileged. 10

And your ruling stands as it is and should be 11

incorporated as part of your section 37 order. 12

Thank you. 13

LA COUR : 14

If you want to argue this further, that that 15

portion of my judgement should be modified, so that 16

there’s privilege attached to that, 287.2, you’ll have 17

to argue that ex parte . 18


I would, but I do not wish to, because I do agree 20

with my colleagues, in the sense that there’s privilege 21

or not, you’re rendered a judgement saying there’s not, 22

so… 23

LA COUR : 24

But you’ve given me a new report that has material 25


- 4085 -



that wasn't there before. So you gave it to me for a 1

reason. I understood that the only reason, initially 2

Friday, was based on both the key issue and the changed 3

position of the defence in view of the new evidence 4

that wasn’t filed on the previous hearings, with 5

respect to common law privilege. 6

So this e-mail with this paragraph, what do you 7

want me to do with that? I’m telling you right now, if 8

you want to argue on section 37 on that public interest 9

privilege under the Canada Evidence Act , and you’re 10

suggesting that there’s something different and, at 11

paragraph 287, sub 2, about the role of RIM that that 12

should be privileged, based on this new information, 13

then you’ll have to argue that ex parte . 14

If you’re not saying that, then my judgement 15

doesn’t change and I’m going to disregard this e-mail 16

with this excerpt. 17

What’s your position? 18


You can disregard the e-mail and I do not want to 20

reargue. 21

LA COUR : 22

So in other words, we adjourned early on Friday, so 23

that I could be clear to your position. I rendered that 24

decision Monday, just refresh my memory. After Monday, 25


- 4086 -



when was the next day we sat last week? 1


I’m going to have to refresh my own memory. 3

LA COUR : 4

Maître Godbout? 5


I think it was Thursday. 7

LA COUR : 8

Friday. So I rendered a decision Monday, time was 9

taken afterwards to get those conclusions out and you 10

redacted them with the amicus ? 11


Yes. 13

LA COUR : 14

Subsequently, I had the full decision delivered and 15

it was redacted… 16


Yes. 18

LA COUR : 19

… by the amicus and the Crown. 20

We sat Friday. The defence received your new 21

evidence that wasn’t produced at the first hearing, 22

they took a position. And then I asked the question, 23

just to be sure that the only point of the change of 24

position was with respect to the global key, not 25


- 4087 -



anything else, because you did cite certain excerpts of 1

Boismenu’s expert report. 2

And then you went further, the amicus intervened, 3

defence counsel intervened. We took a break. 4

Mr. Addario asked me to postpone till today to allow 5

all counsel to -- not at nine thirty (09:30) today but 6

later on in the morning, which is fine, to allow 7

everybody to discuss it. 8

So now you’re telling me that, after considering -- 9

well, your first position was this e-mail sent by 10

Maître Godbout to Maître Kapoor, on the twenty-seventh 11

(27 th ), at four o’nine (04:09) p.m. with this excerpt 12

which you’re now saying that I should disregard it. 13


Well, it was an exchange, your Lordship, between 15

counsel trying to resolve the difficult that obviously 16

arose the same day or the day before, regarding the 17

question that the Court addressed me and how that could 18

affect the following steps. 19

LA COUR : 20

Okay. So do I understand the Crown’s position is 21

that with respect to my orders, the declarations and 22

orders in disclosure motion R-25, R-32, in which you 23

raised common law investigative techniques privilege, 24

my conclusions in paragraph 287, sub 2, with respect to 25


- 4088 -



the involvement or intervention of RIM is not affected 1

in any way by the evidence, the two (2) exhibits that 2

you filed under Section 37 motion? 3


I would sum it up kind of the way my colleagues did 5

in the sense that, given your judgement and its 6

conclusions, either it’s a matter of privilege or not, 7

so therefore, I don’t believe that any argument I could 8

make would change that underpinning… 9

LA COUR : 10

That’s not clear to me. It’s not clear to me. You 11

filed two (2) exhibits: an affidavit from a RIM 12

employee and an expert report from Patrick Boismenu, an 13

additional expert report because you already filed one 14

at the first hearing. 15

Material in these two (2) exhibits was not before 16

me when I rendered my decision on your claim of 17

investigative techniques privileged under common law 18

which is why Mr. Lacy appropriately stated that the 19

record is different now. He did his own investigation 20

with his co-counsel and took the position that the 21

global key, for reasons he stated Friday, should be 22

privileged. 23

It’s clear to me without him saying so that there 24

would’ve been an argument prior to me rendering my 25


- 4089 -



decision on the common law investigative techniques 1

privilege. Maybe they would’ve taken that position then 2

it that material was filed which is why, quite frankly, 3

I don’t understand why that evidence wasn't presented 4

earlier and why we have to loose many more days of 5

Court to review this matter that could’ve been dealt 6

with earlier. The evidence could’ve been called, I 7

could’ve render one judgement with respect to both 8

since you’ve candidly admitted that it’s the same 9

factors and principles that underline both privileges, 10

common law and Section 37. 11

So we’re getting into an extended debate here 12

between all counsel and in front of the Court for 13

nothing. It’s not expeditious and it’s not good 14

management of this motion. 15


Can I only… 17

LA COUR : 18

And it’s not -- I’m not finished. 19


I’m sorry. 21

LA COUR : 22

And it’s not the first time, not necessarily with 23

you but with respect to the Crown’s conduct of the 24

proceedings. 25


- 4090 -




I can only… 2

LA COUR : 3

No, I’m not finished. 4


I’m sorry. 6

LA COUR : 7

So having said that, to be very blunt about it, 8

your new evidence, Mr. Lacy, on behalf of all defence 9

counsel, on behalf of all the accused, and the amicus 10

agreed, has taken the position with respect to the new 11

evidence and with respect to his investigation of this 12

new evidence, it wasn’t filed under the… at the time of 13

the previous hearings, when common law investigative 14

privilege was invoked, he took the position that now, 15

the global key on the Section 37 motion should be 16

(inaudible) not be disclosed. 17

He doesn’t have to rewind and indicate what he 18

would’ve decided had that evidence been produced at the 19

first hearing. 20

It’s probably elementary but we’re not there, 21

because you didn’t do it and the same for the Court. I 22

didn’t have that evidence, as I mentioned Friday, when 23

I rendered my decision. 24

Other than that, if there is anything else in this 25


- 4091 -



new evidence that you, Maître Rouleau, as the counsel 1

that is in charge of this particular motion, if there’s 2

anything else in that new evidence that you feel, other 3

than the global key, changes any of the other 4

conclusions and orders and declarations in my first 5

judgement, say so now, otherwise, the Court understands 6

that the Crown’s position is that this new evidence 7

doesn’t change anything in the first judgement other 8

than the global key. 9

So I’m ready to hear you. 10


So two (2) things, just to be perfectly clear. I do 12

not wish to reargue the circumstances and the fact that 13

led to the fact that this report was produced -- these 14

reports were produced when they were produced. 15

I do not wish my silence on this to be interpreted 16

as agreeing with the Court on who bears responsibility 17

or the simple matter of when this evidence could’ve 18

been tendered by us. And we can only but respectfully 19

disagree on the sequence of events. 20

In any event, it doesn’t change the fact that 21

things happened the way they did. This being said… 22

LA COUR : 23

But this evidence is not something new that just 24

happened, the position of the RIM employee and the 25


- 4092 -



opinion of Patrick Boismenu, that’s something that 1

existed before the arguments were even raised in the 2

common law privilege hearing. 3


Your Lordship, I… 5

LA COUR : 6

You could’ve had that evidence a long time ago. 7


I do not wish to argue with the Court. I argued 9

once and then your decision is rendered. Once that is 10

done, I believe my job is done and it serves no purpose 11

to reargue this over and over. I’ve said what I have to 12

say. 13

LA COUR : 14

Okay. Could you answer my question then. 15


On the second part, yes, okay. So let me try it 17

this way. And this doesn’t need to be ex parte , right? 18

Mr. Boismenu drafted a report. He was asked, given a 19

mandate, drafted a report. As you can see, often 20

technical questions are intertwined. 21

So he tried to square out and make things as clear 22

as possible in his report, and I think he did it 23

successfully. It’s so happens that that report, while 24

obviously in everybody’s opinion, had a direct input on 25


- 4093 -



the question of disclosure of global key, also touches 1

the question of data integrity, which he had already 2

discussed about. 3

But as you recall, the date integrity in the first 4

report essentially gives assurance to the Court from 5

the time of the interception, in the decoding process, 6

hence the ashtag value . 7

What this effectively adds is it gives the Court 8

additional guarantees or safeguards or assurances, that 9

data integrity is respected from the sending of a 10

message to the receiving of the message. 11

So it covers that period, but it’s on the same 12

subject. And at the end of the day, I do not believe 13

that I could successfully argue anything else that I 14

we’ve had already argued on this matter and I do not 15

foresee that that would change the Court’s judgement. 16

LA COUR : 17

No, you can’t predict that. My question is very 18

direct to you and I’m going to repeat it again. 19

We’ve dealt with the global key issue, the defence 20

admitted that the new evidence that wasn’t presented at 21

the first hearing affects the defence position on the 22

global key. They’ve asked the Court, based on that 23

evidence, to… they agree that it should be protected by 24

privilege. 25


- 4094 -



My question to you, I don’t need the explanations, 1

I just need your answer: is there anything else in that 2

new evidence that’s been produced on the Section 37 3

motions, the two (2) affidavits, one by the RIM 4

employee, one by Patrick Boismenu, along with his 5

expert report, is there anything in these documents, 6

these new exhibits, new evidence, in your view, that 7

changes anything that wasn’t present at the time of the 8

first common law privilege motion that you want to 9

argue in front of me? Or… 10


I do not wish to reargue anything. 12

LA COUR : 13

So you’re saying that this new evidence, the 14

Crown’s position is this new evidence, the two (2) 15

documents, 35.17 and 35.18, is that correct? 32.17 and 16

18, Madame Clerk, is that right? 17

LA COURONNE (Me MARIE-CHRISTINE GODBOUT) : 18

You have a copy. It’s R-25.17 and R-25.18. 19

LA COUR : 20

Okay. So to be specific, the new evidence consists 21

of an affidavit, an expert report from Sergeant Patrick 22

Boismenu of the RCMP, as well as an affidavit from Alan 23

William Tredenick (ph), an employee of BlackBerry, 24

formerly know as Research and Motion Limited; and these 25


- 4095 -



exhibits are 25.17 and 25.18 as Maître Godbout just 1

indicated. 2

Is there anything in these documents that’s new 3

evidence? Aside from the question of the global key, is 4

there anything in this new evidence that you feel has 5

an impact on the conclusions, declarations or orders 6

that this Court made in its first decision regarding 7

disclosure R-25 and R-32 and the Crown’s claim of 8

investigative techniques privilege? 9

Is there anything in this new evidence you want to 10

argue, you feel was not present at the first hearing 11

and could impact on anything that I concluded, declared 12

or ordered? 13

If so, I’ve already offered you to make your 14

argument ex parte . What is your answer? 15


Can I ask for ten (10) seconds, I just want to -- I 17

need to… your Lordship, we’re working as a team here 18

and I’m about to… 19

LA COUR : 20

I didn’t disagree with you. Take all the time. Do 21

you need a break? I’ll suspend? 22


Oh no, no. No, no, really. 24

LA COUR : 25


- 4096 -



Go ahead. What time is it on your computer clock, 1

Madame Clerk? 2

MADAME LA GREFFIÈRE : 3

Twelve twenty-four (12:24). 4

LA COUR : 5

Okay. 6

Maître Rouleau, if you’d like to step outside, it’s 7

fine. 8


Yes, yes. 10

LA COUR : 11

I don’t mean that in a metaphorical way. 12


No, no. No, no, of course, it’s not a challenge. 14

LA COUR : 15

Not a challenge, no. Just for the record, the three 16

(3) prosecutors are stepping outside to discuss the 17

matter. If you need more time, let me know and we’ll 18

adjourn. 19


Your Lordship, could I ask for a brief suspension? 21

LA COUR : 22

Yes. 23


I need to discuss with Maître Kapoor and my 25


- 4097 -



colleagues? 1

LA COUR : 2

It’s fine. 3


Five (5) minutes, I think would be… 5

LA COUR : 6

Okay. I’ll withdraw. Just advise the bailiff when 7

you’re ready. If it’s more than five (5) minutes, it’s 8

fine. Just let me know and she’ll come and get me. 9

All right. Is there anything you want me to review, 10

Maître Rouleau, before I come back? 11


No. 13

SUSPENSION DE L’AUDIENCE POUR PERMETTRE À LA COURONNE DE 14

DISCUTER AVEC Me KAPOOR ET LA DÉFENSE 15

REPRISE DE L’AUDIENCE 16


So your Lordship, this issue raised very 18

interesting and important questions. Between the three 19

(3) parties, we’ve come to the conclusion that during 20

the lunch break, Maître Kapoor and us, we will consider 21

the redacted parts of your judgement to see what -- the 22

solution we have in our heads, how that affects that; 23

come back to the defence and at two o’clock (02:00), we 24

come back in front of you. 25


- 4098 -



And that’s what we respectfully ask for, to suspend 1

until two (02:00) to come back with a hopefully a joint 2

proposition. 3

LA COUR : 4

A joint proposition on? 5


On the way to resolve this issue. 7

LA COUR : 8

Well, I just wanted to know if you’re saying does 9

the new evidence, in your view, in the Crown’s view, 10

add anything to your arguments, to any other issues on 11

the common law privilege for which I rendered a 12

judgement. 13

Is there anything that you -- your first 14

inclination was no. You hesitated which is why I wanted 15

to be sure I understood your position and why I offered 16

you to present further arguments ex parte which you 17

declined. 18

So other than the global key, which we have the 19

defence’s position, and I have your position, does the 20

new evidence -- can you answer me, does it add anything 21

to any of the other orders, conclusions or declarations 22

that I made in my first judgement? 23


That’s evidence to the involvement or not of RIM. 25


- 4099 -



That’s what it pertains to. 1

LA COUR : 2

Okay. Is there anything you wanted, but you’ve 3

declined further argument on that. 4


Yes, well, I do not believe, and that is why we 6

needed to revisit the edited parts of your judgement. 7

Maître Kapoor raised an interesting perspective on this 8

that we felt we needed to reflect on, but if it came to 9

a situation where an argument will need to be made, our 10

position is that we would try to make it short and 11

public and, obviously, the defence would want to 12

consider that argument, maybe. 13

But at the end of the day, our first take on this 14

was that it doesn’t add a new argument to what… to the 15

argument structure that was presented to you before. 16

But again… 17

LA COUR : 18

If that’s the case, just say so and let’s get on 19

with it. We sat last Monday for the rendering of a 20

decision, we didn’t sit all week in order for you to 21

have the redacted conclusions, the redacted judgement 22

that allowed counsel to get together to expedite 23

matters. We sat part of Friday, we started late to 24

allow you to meet. We started late today. 25


- 4100 -



Your five (5) minutes -- excuse me -- adjournment 1

is longer. Why can’t you take a position and answer 2

this question? You’ve had ample time. 3


Okay. Well, I do not wish to reargue the issue, 5

your Lordship, and that it what I have to say on this. 6

LA COUR : 7

Okay. So what do you want to do now? You want to 8

postpone again? 9


Your Lordship, I do not know what to say. I do not 11

know what to answer. 12

LA COUR : 13

What are you asking the Court to do now? 14


Well, what I was going to try to convince the Court 16

just to come back at two (02:00), because we have an 17

issue to discuss amongst ourselves. If that’s not the 18

case, well, then I do not have anything further to add 19

to what’s already been debated in front of you. 20

LA COUR : 21

No, I’ve been very flexible throughout all of the 22

motions that have been presented and I’m going to allow 23

you to have the time but I have difficulty with the 24

number of postponements from the time this judgement 25


- 4101 -



was rendered. There was time that was required on my 1

part for redacting, but it allowed ample time for you 2

to meet with the defence, with the amicus , if not in 3

person, on the phone and other manners. 4

I don't understand that after lengthy periods, 5

where we haven’t been sitting, I’m in and out of this 6

room, why you just can’t take a position on a very 7

specific issue and advise the Court on a very specific 8

question. 9

I’m getting impatient with it. Do you understand? 10


I do understand, Sir, but these gentlemen offer 12

excellent cooperation. Maître Kapoor is very helpful to 13

the process. We do not sit in our corner and avoid 14

them. We’re trying to move things along as best we can. 15

Now, I’m sorry that the outcome of what we 16

presented to Court makes it so that we cannot move 17

forward, but we are doing the best we can. I can assure 18

you of this. 19

LA COUR : 20

All right. 21


And it’s through no fault of my colleagues or 23

Maître Kapoor and I do believe it is through no fault 24

or ours either. 25


- 4102 -



This being said, your Lordship, I think it would be 1

helpful to reconvene at two (02:00), but at the end of 2

the day… 3

LA COUR : 4

I’ve agreed to that already. 5


Okay. 7

LA COUR : 8

It’s just that if there are matters to discuss 9

between counsel, the Court -- this morning, I got a 10

message rather than start at eleven (11:00), you wanted 11

to start later, that’s fine. And Friday rather than 12

start a nine thirty (09:30), you wanted to start at ten 13

(10:00) and eleven (11:00) and that’s fine. 14

But when Court reconvenes and I’m on the bench, I 15

take for granted that you’ve resolved these issues. 16


And we are certainly trying to, your Lordship. And 18

I can assure you, give you my personal assurance… 19

LA COUR : 20

Don’t do that, I would stop you right there. Don’t 21

do that. Don’t make sweeping statements because, at 22

this point, from what I’ve seen it’s not a good idea. 23

We’ll adjourn till two o’clock (02:00). I would 24

like to know though -- I mentioned it on… two (2) 25


- 4103 -



things on Friday. The redacted portions, I had no 1

participation on that; that was between the Crown and 2

the amicus . After reviewing it, I think that there are 3

certain excerpts that could be reviewed ex parte , 4

perhaps more information could be given to the defence. 5

Either we do that today or we’ll do that tomorrow, 6

do you agree with that? 7


Yes. 9

LA COUR : 10

Maître Kapoor, what’s your schedule? 11

Me KAPOOR : 12

I’m here today and tomorrow. 13

LA COUR : 14

All right. I think we can probably do that in less 15

than half a day? 16

Me KAPOOR : 17

Sure, we may be able to get started on it this 18

afternoon. 19

LA COUR : 20

Yes, I think there are -- I won’t say here what 21

they are -- but there are certain portions that are 22

quite obvious to me. 23

The other thing I wanted to know before we break 24

for lunch is the schedule. I’ve been asked about the 25


- 4104 -



room and that, could you give me some information? I 1

take it once we’ve resolved the privilege issue, you’re 2

going to take other steps? 3


Yes. 5

LA COUR : 6

That’s been made quite clear and I understand that 7

-- firstly, before I go any further, the accused aren’t 8

present right now and we’ve been dealing with 9

administrative issues and starting at two o’clock 10

(02:00) rather than now, do all defence counsel waive 11

the right to have their counsel present for these 12

administrative discussions or I’ll have them come back 13

in right now? 14


Yes, I do for everything that’ve been taken place, 16

it’s just fine, your Honour, of course. If we’re going 17

to get into scheduling the motions, we should probably 18

have them. 19

LA COUR : 20

All right. But the other defence counsel that are 21

present with respect to the Crown’s request for a 22

postponement till two o’clock (02:00), my comments and 23

any other interventions, does everybody explicitly, 24

expressly waive the presence of their clients, the 25


- 4105 -



accused? 1

LA DÉFENSE (Me FRANK ADDARIO) : 2

Yes, we’re waiving, your Honour. 3

LA COUR : 4

Is there anyone that doesn’t agree to that? No. 5

So you can put that down for the record. 6

For the schedule, and we can repeat that this 7

afternoon. Does it stay as is? We booked various dates 8

in December. The Court is available, the staff is 9

available. I just want to make sure that we’re still 10

using those days. 11


We were discussing and we’ll have, I believe, a 13

proposition to make to the Court that makes the week of 14

the seventh (7 th ) and the week of the fourteenth (14 th ) 15

filled with days of Court with motions and I think 16

what’s in the process is thinking about reconvening 17

with everyone on the twenty-second (22 nd), tentatively. 18

That’s what we’re working on. 19

But the next two (2) weeks would see the Court 20

decide on a bail hearing and the Tim Hortons video 21

exclusion demand from the defence. 22

We have different takes on what can and can’t be 23

done, but that’s an agreement that we could come up 24

with. 25


- 4106 -



LA COUR : 1

All right the dates that had been fixed in 2

December, aside from this week, the week of the seventh 3

(7 th ), the week of the fourteenth (14 th ), I have down 4

the seventeenth (17 th ) and eighteenth (18 th ), are the 5

fourteenth (14 th ), fifteenth (15 th ), sixteenth (16 th ) 6

available as well? 7


Yes. Actually, if I may. We had figured that we 9

could do the bail hearing of Mr. D’Addario, 10

tentatively, on -- and we added an extra day of the 11

eighth (8 th ), tenth (10 th ) and eleventh (11 th ), just to 12

be sure; the Tim Hortons video motion on the sixteenth 13

(16 th ), seventeenth (17 th ) and eighteenth (18 th ), those 14

three (3) days. 15

And then we’ll reconvene with everyone present on 16

the twenty-second (22 nd). 17

LA COUR : 18

All right. So you’re not asking to sit the 19

fourteenth (14 th ) and the fifteenth (15 th ) at this 20

point? 21


Yes. 23

LA COUR : 24

All right. So correct me if I’m wrong, Maître 25


- 4107 -



Rouleau, seventh (7 th ), eighth (8 th ), ninth (9 th ), tenth 1

(10 th ), eleventh (11 th ), the full week? 2


Actually, not the seventh (7 th ), eight (8 th ), ninth 4

(9 th ) -- eighth (8 th ), tenth (10 th ) and eleventh (11 th ), 5

because the ninth (9 th ), as we speak, disruption of the 6

process is to be -- there’s supposed to be a strike 7

which makes it very hard for the Court to… 8

LA COUR : 9

Okay. So the bail hearing, the eighth (8 th ), tenth 10

(10 th ) and eleventh (11 th )? 11


Yes. 13

LA COUR : 14

And the week of the fourteenth (14 th )? 15


Sixteenth (16 th ), seventeenth (17 th ) and eighteenth 17

(18 th ), so fourteenth (14 th ) and fifteenth (15 th ) are 18

available if you will. 19

LA COUR : 20

Okay. And the twenty-first (21st), you’re saying 21

no? 22


No, because there’s a sentencing of Mr. Desjardins 24

that’s taking place in another justice hall. 25


- 4108 -



LA COUR : 1

So the Crown won’t be available, right. 2


We prefer to reconvene on the twenty-second (22nd) 4

for that reason. 5

LA COUR : 6

That’s fine, that’s fine. So the twenty-second 7

(22nd) and the twenty-third (23rd), if need be and I’ve 8

noted, although, we haven’t fixed it… 9


Yes. 11

LA COUR : 12

… twenty-eighth (28 th ), twenty-ninth (29 th ) and 13

thirtieth (30 th ) were available, if need be. 14


And we have availabilities, if need so. 16

LA COUR : 17

Okay, let’s just do this before we break. In 18

January, we were going to reconvene on the fourteenth 19

(14 th ), do you foresee a need to reconvene earlier 20

dates that week? 21


We are in the Court’s hand, we are available if it 23

unfolds that way, we certainly are available to 24

reconvene earlier. 25


- 4109 -



LA COUR : 1

All right. All right, this Court might use on the 2

eleventh (11 th ) and the thirteenth (13 th ), which might 3

require us to stick to our schedule of the reconvening 4

on the fourteenth (14 th ). 5

Presuming that we finish the word that you’ve 6

stated, the Tim Hortons matter and the bail hearing, 7

what would be the next motion or the next piece of 8

business we’d have to deal with? 9


See, this is why we would have to reconvene on the 11

twenty-second (22nd), because my colleagues have a 12

position, we have a position on the others, on how this 13

can be… how the appeal process is affected. Their 14

motions, they’re affected by the ruling on the 15

privilege. So… 16

LA COUR : 17

I’d have to anticipate that could take some time. 18


We’re confident that, first of all, obviously, the 20

Court of appeal hears the matter expeditiously, we’re 21

ready to go forward as soon as possible. 22

LA COUR : 23

Well… 24



- 4110 -



We’re hoping, hoping that this matter be resolved 1

by February, that’s our… but we certainly would have… 2

LA COUR : 3

For the Court to review the matter, for the Court 4

to hear the motion, hear all counsel, for the Court to 5

render a decision, February? 6


We first asked -- yes, we first asked for une 8

conférence de gestion in front of a Justice who will 9

give us a deadline. 10

LA COUR : 11

All right. 12


We’re ready to live with a tight schedule. 14

LA COUR : 15

All right. 16


So it might make it so that we’re heard by 18

February, whether or not the Court decides to render a 19

judgement rapidly or not, that, of course, we can’t 20

control but… 21

LA COUR : 22

All right. And then you don’t know whether or not 23

there will be appeal steps necessary after that. You 24

don’t know that. 25


- 4111 -




Obviously. 2

LA COUR : 3

So put aside the privilege motion and the delays 4

that that incurs, if you can answer me now, could you 5

give me an idea, in January, presuming obviously that 6

the privilege motion will not be resolved by the appeal 7

Courts, what matters you anticipate will be dealt with? 8


What I could suggest to the Court is we come up on 10

the twenty-second (22nd) with a proposition to let our 11

colleagues come up with their own or their take on our 12

proposition. 13

LA COUR : 14

I’d like to know this afternoon, when we reconvene 15

and it’s not etched in stone, positions can change as 16

they often had, but as we speak today, on November 17

thirtieth (30 th ), presuming that the month of December 18

is taken up with the matters that you’ve already 19

raised, what would be the next piece of business we’d 20

have to deal with when we reconvene in January? 21


Okay. Well, I can address the matter with my 23

colleagues and come back at two o’clock (02:00) on 24

this. 25


- 4112 -



LA COUR : 1

All right. 2


Because that’s at the heart of the matters, of the 4

discussions we’ve been having. 5

LA COUR : 6

All right. So in addition to anything else, you 7

have to discuss with your colleagues, I’d like to know 8

that you’re also going to look at your schedules, the 9

defence lawyers schedules and, if need be, if 10

Mr. Kapoor is involved for any of these other matters, 11

Mr. Kapoor’s schedules; and, once I have that 12

information from you, I can deal with the scheduling of 13

the… the administrative aspect of the availability of 14

Courts and where we sit and when, in order that all of 15

the matters that are presented be dealt with 16

efficiently and expeditiously. 17


Of course. 19

LA COUR : 20

So you did ask for two o’clock (02:00) and these 21

issues took up a little more time, so if you prefer we 22

can start at two fifteen (02:15)? 23


Please. 25


- 4113 -



LA COUR : 1

You’d prefer that? 2


Yes. 4

LA COUR : 5

Okay, yes? 6

Me ALEXIS GAUTHIER, 7

Procureur de la Couronne : 8

Could we suggest to the Court that for the eleventh 9

(11th), if we have to proceed to the bail hearing of 10

Mr. D’Addario… 11

LA COUR : 12

The eleventh (11 th ) of what month? 13

LA COURONNE (Me ALEXIS GAUTHIER) : 14

Of December. 15

LA COUR : 16

Yes. 17


I think that you mentioned that this Court will be 19

taken by another procedure… 20

LA COUR : 21

No. 22


January. 24



- 4114 -



January, I’m sorry. 1

LA COUR : 2

Not December. 3


Okay. Sorry. 5

LA COUR : 6

I was referring to January and I’d like to give an 7

answer immediately so that other matters could be 8

scheduled, if need be. You understand that in the event 9

that this Court is ever not available for whatever 10

reason, we always have the option to go to Gouin, 11

right? 12


M’hm. 14

LA COUR : 15

But for the time being, we’re staying here. All the 16

material, the exhibits, everything is here. You have 17

your offices here. So the change of venue was ordered 18

to Laval. So we will be here. 19

But in the event of a conflict or for any 20

administrative reason, we can’t sit here, as has 21

happened in the past, we’ll go to Gouin. 22

So if you could just enlighten me on the dates of 23

that week of January, I can make arrangements with a 24

colleague and we’ll indicate which dates are available 25


- 4115 -



here, the other dates will or will not be taken, I’ll 1

confirm all that this afternoon. 2

If it comes up that you don’t need the dates, 3

whichever dates we fixed that week in January, it’s 4

fine, but at least, we’ll have them booked if need be. 5

All right. I’ll see you at two fifteen (02:15). 6

SUSPENSION DE L’AUDIENCE POUR LE LUNCH 7


LA COUR : 9

Before we adjourned for the lunch break, there were 10

some discussions with respect to what was to take place 11

this afternoon and other scheduling matters and all 12

counsel expressly renounced your presence. If there’s 13

any request by any of the lawyers or any of the accused 14

as to what took place in those few minutes, please let 15

me know now, or if it’s agreed to, we’ll continue. 16


Well, your Honour, there was a discussion about 18

what’s going to take place as to December and it will 19

be useful, I think, to repeat that now. 20

LA COUR : 21

All right. Are there any other -- I understand that 22

all counsel expressly renounced the presence of the 23

accused for those administrative matters other than the 24

schedule in December and perhaps January. 25


- 4116 -



Is there anything else that any of the counsel wish 1

to have repeated? No, okay. If so, all counsel, Madame 2

Clerk, if you could note that and if there is, you’ll 3

let me know and we’ll review it again. 4

With respect to the schedule, at the present time, 5

what will take place is today we’ll continue with the 6

privilege issue we had been working on for the last 7

little while and we’ll follow up on what took place 8

this morning. 9

And tomorrow, there might be the ex parte hearing 10

which is just the prosecutors, the amicus , Mr. Kapoor 11

and myself in order to see if there’s any other 12

redacted passages. By redacted I mean passages in my 13

judgement that are blacked out because the Crown says 14

they’re privileged. We’re going to see tomorrow if 15

there’s anything else we can release or not. 16

Following that, I don't know what will take place 17

later this week, counsel will advise me. I’m advised 18

next week that, tentatively, at this time, the eighth 19

(8 th ), tenth (10 th ) and eleventh (11 th ) of December, 20

Addario is planning to proceed with a bail hearing, is 21

that correct? 22


Yes, it is. 24

LA COUR : 25


- 4117 -



Okay. We’ve also fixed dates the sixteenth (16 th ), 1

seventeenth (17 th ), eighteenth (18 th ) of December, 2

twenty-one, twenty-two, twenty-three (21-22-23) and 3

we’re also available to continue the twenty-eighth 4

(28 th ), twenty-ninth (29 th ) and thirtieth (30 th ) of 5

December. 6

Another motion we plan to deal with is the Tim 7

Hortons video motion. And that would be yours, Mr. 8

MacDonald? Or that’s Mr. Boro, is that correct? 9

Me RONNIE MacDONALD, 10

Procureur de l’accusé Jack Simpson : 11

It’s Mr. Engel who’s dealing with that motion. 12

LA COUR : 13

Okay, all right. 14

Other than those two (2) motions for now, is there 15

anything else that any of the counsel anticipate will 16

be dealt with in the month of December? 17


It’s anticipated that two (2) residual matters that 19

started earlier this year relating to Judy Castello, 20

all will be wrapped up in December, it may require your 21

participation or not. 22

LA COUR : 23

All right, it’s good. 24

Okay. Can I ask you something, Maître Gauthier? 25


- 4118 -



When you want to address the court, stand up, with your 1

hand like that, I’ve mentioned it before, putting up 2

your finger, don’t do that in front of me, okay? I 3

always want to hear what you have to say but not like 4

that. 5

So if you have something to say, please stand up 6

and I’d be most interested to hear from you. Go ahead. 7


My apologies. 9

LA COUR : 10

Fine, thanks. Go ahead. 11


I can, now? 13

LA COUR : 14

Absolutely. 15


Okay, thank you. For the motion related to the Tim 17

Hortons… 18

LA COUR : 19

Yes. 20


… depending as to how and what kind of admissions 22

are made by the defence, it could have an impact as to 23

how long we will need in front of you. 24

We have proposed admissions to the defence, and it 25


- 4119 -



might be a good thing to ask Mr. Engel to provide us 1

with an answer in a timely fashion for the parties to 2

be sure and to be prepared to proceed starting on the 3

fifteenth (15 th ). 4

So -- sixteenth (16 th )? Seventeenth (17 th ) and 5

eighteenth (18 th ). 6

LA COUR : 7

All right. Again as case management judge, I can’t 8

jump into the arena and monitor that between you and 9

Mr. Engel. I would hope that with all of the time that 10

has taken place since that motion was filed, all the 11

days that we were supposed to sit, that we didn't sit, 12

that counsel have managed to get together and made 13

whatever agreements are necessary in order to expedite 14

that particular motion. 15

So that the lawyers can focus on and raise the very 16

restricted important issues that I have to decide 17

instead of putting everything in front of me that may 18

not be material as has happened before, requiring my 19

intervention, what about this and what about that; and 20

then numerous delays that are not necessary. 21

So your point is well taken and I leave it with you 22

handling that motion, Mr. Gauthier? 23


No, it will be Maître Hadjis who will take care of 25


- 4120 -



it. 1

Me FOTINI HADJIS, 2

Procureure de la Couronne : 3

No, I’m handling the motion, your Honour. And we 4

have corresponded, there are six (6) witnesses, I have 5

corresponded with the defence, and I feel or I 6

understand that I should get an answer regarding the 7

admissions this week. 8

Is that correct? 9

LA DÉFENSE (Me RONNIE MacDONALD) : 10

Well, not necessarily this week. 11

LA COURONNE (Me FOTINI HADJIS) : 12

Okay. 13


Give us a few days. 15

LA COURONNE (Me FOTINI HADJIS) : 16

A few days. 17

LA COUR : 18

Okay. Mr. MacDonald, it’s a good thing that you’re 19

on your feet, because on the question of admissions, we 20

had problems in another motion, if there are going to 21

be admissions, make sure they’re very clear, that Crown 22

and defence sign them and that the accused that are 23

subject to that motion sign as well, so that there’s no 24

ambiguity about what’s being admitted. 25


- 4121 -



Making an admission means that the Crown doesn’t 1

have to make proof on the point. So if there’s an 2

admission, make sure that it’s clear. And you can 3

convey these remarks to Mr. Engel who certainly is 4

familiar with that. 5

Rather than arriving in Court, as has happened in 6

the past… 7


I understand. 9

LA COUR : 10

… and putting me in a position where I have to 11

intervene and we take up a large amount that’s not 12

necessary. 13

So you have some time, and I suggest you speak to 14

your colleague. It could be that you don’t admit 15

anything. I’m not pushing you to do that, but with the 16

numbers of motions here, with experienced counsel, get 17

to the important issues that you feel you need to raise 18

in front of me. And if there’s factual issues that 19

aren’t contested, then you should have a discussion 20

with the Crown as to whether or not you’re admitting 21

it. 22

Again I’m not pushing you to do that, but there are 23

certain things, I’m sure, that aren’t contested. All 24

right? 25


- 4122 -




I’ll speak with Mr.… 2

LA COUR : 3

But don’t leave it until the end where we have to 4

meet… we have to meet with the Crown tomorrow, please 5

come in at eleven (11:00) or can we skip tomorrow so we 6

can meet the Crown. We’ll do it in two (2) days. Get it 7

done. 8


Yes, Sir. 10

LA COUR : 11

And the same thing goes for the bail hearing for 12

which the evidence is obviously not subject to the same 13

standard, but if there’s anything that’s admitted or 14

can be streamlined, please do so now rather than when 15

we commence the motion. 16

So thank you for your intervention, Maître 17

Gauthier. 18

With respect to the New Year, is there any other 19

follow-ups on that about dates in January? 20


Well, your Lordship, as you may recall this morning 22

-- I’m sorry -- the remainder of the issues that can be 23

addressed by the Court touch directly or indirectly the 24

wiretap issue. 25


- 4123 -



Our friends have a take on the importance of having 1

the present disclosure issue raised before that’s 2

raised. Ours is a little bit different, but… 3

LA COUR : 4

Say that again, sorry. 5


Our friends have a different interpretation of the 7

impact that the present issue, disclosure issue, has on 8

their possibility to bring forward the motions in which 9

the wiretap was used, as grounds for other warrants. 10

So we discussed that and that is why, this morning, 11

we came up with the suggestion of revisiting the issue 12

on the twenty-second (22 nd) and I’m sure that they have 13

something to say about that. 14

LA COUR : 15

All right. 16

So this is what we’re going to do. We’re going to 17

maintain those dates that I’ve just outlined, a few 18

minutes ago in December. We’re going to keep open the 19

dates of the twenty-eighty (28 th ), the twenty-ninth 20

(29 th ) and thirtieth (30 th ) of December. 21

In January, originally, Mr. Lacy, you’ll remember, 22

originally, when we discussed the week of the eleventh 23

(11 th ) of January, we said we’d sit the fourteenth 24

(14 th ) and fifteenth (15 th ) and not the eleventh (11 th ), 25


- 4124 -



twelfth (12 th ) and thirteenth (13 th ). We’ll maintain 1

that schedule for now, unless you tell me that the 2

fourteenth (14 th ) and fifteenth (15 th ) at this point are 3

not necessary. Do you want to keep those dates? 4


Well the -- Good afternoon, your Honour. The point 6

that’s taken between Crown counsel and us is that we 7

think that, by the end of December, we will have 8

exhausted the pretrial matters or nearly exhausted the 9

matters that we think we can do without a resolution of 10

the disclosure application. 11

LA COUR : 12

All right. 13


That has been -- we’re told (inaudible) subject to 15

an appeal. 16

LA COUR : 17

Okay. For the time being and in January, 18

tentatively, depending on what happens, it’s the 19

twenty-second (22nd), is that right? The twenty-second 20

(22 nd) of December that we revisit that? 21


Yes, Sir. Yes, Sir. 23

LA COUR : 24

Okay. So for the time being, we’ll keep the 25


- 4125 -



fourteenth (14 th ) and fifteenth (14 th ) of January, we 1

will not sit the eleventh (11 th ), twelfth (12 th ) and 2

thirteenth (13 th ). 3

And if there’s some reason that we had to sit those 4

days, the eleventh (11 th ), twelfth (12 th ) and thirteenth 5

(13 th ), then we’ll do it at Gouin. All right? 6

So after the Christmas break, we will reconvene on 7

Thursday the fourteenth (14 th ) and Friday the fifteenth 8

(15 th ), here in Laval. Unless you foresee right now 9

that you think that the fourteenth (14 th ) and fifteenth 10

(15 th ) is hypothetical, if you won’t need those dates, 11

I’ll give this room to another matter. 12


It’s fine. 14

LA COUR : 15

But what we could do, we could do the following. 16

And I’d have to confirm it at a break this afternoon. 17

We could indicate, subject to what may happen on the 18

twenty-second (22 nd) of December, we can free up this 19

room, the week of the eleventh (11 th ) of January and if 20

we decide to reconvene that week, whatever dates there 21

may be, if Gouin is available, well that week, we’ll go 22

there. 23


We could do that, your Honour. 25


- 4126 -



LA COUR : 1

Okay. 2


And Mister -- we could to that and I won’t try to 4

preview a motion that may appear. 5

LA COUR : 6

Because what I want to avoid is we reserve this 7

room the fourteenth (14 th ) and fifteenth (15 th ) and 8

then, and it’s no fault of anyone, and then you’ve 9

decided after reviewing with the Crown that you don’t… 10

you’re not going to proceed that week and the room is 11

empty. 12


It’s not fair to parties who might need it. 14

LA COUR : 15

Exactly. 16


I agree and we could go to Gouin for a couple of 18

days. 19

LA COUR : 20

And there are certain other matters for certain 21

reasons that don’t go to Gouin, other types of cases. 22

Several are commercial or what have you. 23

So what I’m going to do at the break, I’ll verify 24

if Gouin is available the week of the eleventh (11 th ) 25


- 4127 -



and I’ll book it that week. For the time being, we’re 1

not sitting that week. If it’s necessary to sit that 2

week and you’ll advise me of that, on the twenty-second 3

(22 nd) of December, it won’t be here, subject to what I 4

find at the break. I just want to make sure it’s still 5

available. 6


Right. 8

LA COUR : 9

Okay? 10


And if we do have something that… we’ll just assume 12

it’s the fourteenth (14th), is that fair? 13

LA COUR : 14

Yes. 15


Thank you. 17

LA COUR : 18

All right. So what we’ll do is when we break for 19

the Christmas break, we’ll reconvene the fourteenth 20

(14 th ), and the fifteenth (15 th ) at Gouin but I have to 21

come back to you after the afternoon adjournment, just 22

to confirm the availability of that Courthouse. And if 23

you should need other dates earlier that week, I’ll 24

also confirm to see whether or not it’s available. 25


- 4128 -



But we’ll fix the fourteenth (14 th ) as the first 1

date and if you need another date earlier that week, 2

you’ll let me know on the twenty-second (22 nd) of 3

December. 4

Does that work? 5


Yes, Sir. 7


It works fine. 9


Yes, Sir. 11

LA COUR : 12

Okay, very good. I just wanted to confirm as well 13

with you, as we go forward in the New Year, I had dates 14

that certain counsel weren’t available, it doesn’t 15

matter who, it wasn’t the Court. I was available but 16

certain counsel weren’t available on the following 17

dates, so please make a note of this and if there’s any 18

changes where the counsel that were not available, are 19

now available, please let me know. I know there were 20

dates for the Crown and certain defence counsel. 21

So the unavailable dates are the fourth (4 th ) and 22

fifth (5 th ) of February, the seventeenth (17 th ), 23

eighteenth (18 th ), nineteenth (19 th ) of February, 24

twenty-ninth (29 th ) of February. You’ve all asked for 25


- 4129 -



that week the twenty-ninth (29 th ) of February, twenty-1

ninth (29 th ) February to the fourth (4 th ) of March 2

inclusive; and the twenty-third (23 rd ) and twenty-3

fourth (24 th ) of March. Are those dates still 4

unavailable to the lawyers that had requested we not 5

sit or have any of them opened up? 6

So if I haven’t heard from any of the counsel, I’d 7

presume that all those dates are still unavailable, is 8

that right? 9


Yes, your Honour. 11

LA COUR : 12

Okay. 13


Seventeenth (17 th ), eighteenth (18 th ) and nineteenth 15

(19 th ) of February? 16

LA COUR : 17

Yes, four (4), five (5), seventeen (17), eighteen 18

(18), nineteen (19) and twenty-nine (29) of February to 19

fourth (4 th ) of March inclusive, that’s the break. 20

Twenty-ninth (29 th ) is a Monday, the fourth (4 th ) of 21

March is a Friday and then then twenty-third (23 rd ) and 22

twenty-fourth (24 th ) of March. 23


Thank you. 25


- 4130 -



LA COUR : 1

So I understand for the defence lawyers and the 2

Crown lawyers that asked for those dates, they’re still 3

not available? 4


That’s correct. 6

LA COUR : 7

If they should have opened up as we go along, 8

you’ll let me know. All right. So thank you for that 9

because I’ll make the appropriate arrangements with 10

those scheduling requests. All right, let’s continue. 11

Is there any other administrative matter before we 12

continue with the privilege issue? 13


I can’t see anything. 15

LA COUR : 16

Go ahead. 17


So, your Lordship, during the lunch break, we put 19

our heads together, and this is a joint effort to try 20

to sum up the impact issues relating to the new 21

evidence and data integrity. We put it in writing so I 22

will submit this to the court, it’s four… it is (4) 23

paragraphs, four (4) submissions. It might… 24

LA COUR : 25


- 4131 -

RAYNALD DESJARDINS & AL 540-01-063248-141 REPRÉSENTATIONS (NOUVELLE PREUVE) Le 30 novembre 2015


Okay. Before I read that, the words “decrypt” and 1

“decode” are used interchangeably, they don’t 2

necessarily mean the same thing. But do I understand 3

when those words are used, the intent is that they mean 4

the same thing? 5


Yes, I do believe so. 7

LA COUR : 8

All right. Same thing, Mr. Lacy? 9


I do understand that. 11

LA COUR : 12

Okay. But so whether are used sometimes decode, 13

sometimes decrypt, you’re intending the same meaning? 14


It certainly when I use those words. That’s fine, 16

yes. 17

LA COUR : 18

Okay. And the same thing for encode or encrypt? 19



LA COUR : 22

Same thing, all right. Because there is a 23

distinction, but I understand that that distinction is 24

not being made when they’re used here. 25


- 4132 -




Not from my perception. 2

LA COUR : 3

Okay. And neither from the Crown, is that correct? 4


Yes, Sir. 6

LA COUR : 7

Okay, thank you. Does anybody have any comment on 8

these four (4) paragraphs? 9


I guess by sitting down, or I just wanted to see if 11

anybody else was getting up, but no one. 12

LA COUR : 13

Mr. Lacy, do you have anything to say about this? 14


No, this is the product of a joint effort to try to 16

capture what the Crown I think was trying to do this 17

morning with you. 18

LA COUR : 19

All right. 20


To the extent that you wanted to hear the defence’s 22

position on whether this changes the balancing, I can 23

address that at some point. It’s not going to take 24

long, it will take less than two (2) minutes to tell 25


- 4133 -



you the defence’s position. 1

LA COUR : 2

Go ahead, yes, go ahead. 3


Obviously to continue with your ruling this 5

morning, you found that it was not privileged that 6

first instance, which was obviously a clean answer to 7

the Crown’s position and as we review your judgement, 8

in terms of the balancing that you did in the 9

alternative, it was not the data integrity issue that 10

was of any moment to the Court. 11

And we take from the redacted version of your 12

judgment that when you came to do the balancing, you 13

had in mind, not just the substantive trial, but also 14

the issues that would obviously be an issue on the 15

Garonfoli application, it’s already been filed with the 16

Court. 17

And among those, in terms of the role of RIM 18

BlackBerry, one of the things that is obviously 19

important to the applicant is understanding whether or 20

not, to the extent that RIM or BlackBerry had a role to 21

play, it was judicially authorised as opposed to some 22

other role RIM or BlackBerry might have played that was 23

not judicially authorised. 24

So the bottom line from the applicant’s perspective 25


- 4134 -



-- and I think it’s essentially conceded by the Crown 1

at least implicitly, this would not change the order 2

you’d make for the purposes of the Section 37 3

application. The only amendment to the order that you 4

would make if you accept the concessions made by the 5

applicants is the one that we’ve talked about on Friday 6

which would be to -- in paragraph 287, the only other 7

thing you’d add in the save and except part would be 8

the global encryption key. Otherwise, as I understand 9

it, your order would stay the same. 10

LA COUR : 11

All right. So I’ll ask Maître Rouleau again. Other 12

than the defence position with respect to the global 13

key, based on your evidence, the new evidence from the 14

Section 37 application, the RIM employee and Patrick 15

Boismenu, the two (2) affidavits and the expert report, 16

based on that new evidence, Mr. Lacy, on behalf of all 17

of defence counsel who also stood up and agreed with 18

his position, they now say that the global key should 19

be privileged and not disclosed. 20

After reviewing this evidence on the Section 37 21

application, that evidence was not filed on the common 22

law privilege invoked by the Crown. 23

So other than that position with respect to the 24

global key, does the Crown have any other arguments 25


- 4135 -



that it wishes to make to the Court with respect to 1

anything else that the Court said is not privileged, 2

that the Crown feels should be privileged? 3

And the Court invites the Crown to make those 4

arguments ex parte . Because I’m going to say so in the 5

judgement that I’m going to render, that I asked you if 6

you don’t want to argue anything else ex parte , that’s 7

fine. If you do, I’m giving you -- it’s your right to 8

do so. The amicus is here today, he’s available 9

tomorrow, he’ll do it. 10

Otherwise, I’m understanding that with the 11

exception of the global key, based on the new evidence 12

and the defence’s new position, the Crown’s position is 13

that the new evidence filed at the Section 37 hearing 14

has no bearing, it makes no change to anything else 15

that happened at the first… on the first set of 16

hearings with respect to your claim on investigative 17

techniques privilege. 18

Now have I resumed that accurately? 19


Yes but I believe that, as my colleague maître Lacy 21

said, I do believe that I can make an argument 22

publicly. I don't think that I need to resort to an ex 23

parte session for that purpose. 24

And it could be… it could be, once this is said 25


- 4136 -



that the Court might have comments that need to be made 1

ex parte or, to that effect, maybe Maître Kapoor, which 2

is, you know, if that’s the case, that is the case. But 3

I would like to try to make the argument publicly 4

because if it satisfies everybody, well, that could be 5

the end of that. 6

LA COUR : 7

Well, you say in paragraph 4 that “ the new 8

information ”, the new information, you mean new 9

evidence? 10


Yes. 12

LA COUR : 13

Okay. So the new evidence makes it clear that 14

there’s no issue about the integrity of the intercepted 15

data, but -- okay, I have to say I’m not very satisfied 16

with this. 17


Well, it was our best effort and I don’t know, I… 19

LA COUR : 20

Okay. And… 21


Either you give me a chance to try to make it 23

clearer publicly right now or we move to ex parte . I 24

mean, it’s going to be one or the other. I’m willing to 25


- 4137 -



do both but I think I can do it publicly. 1

LA COUR : 2

You know if I were to ask you what colour this 3

paper is, what colour is it? 4


I’d have to say white. 6

LA COUR : 7

Yes, you would. 8


Yes. 10

LA COUR : 11

My question was quite specific and I understand you 12

made an effort but you’re going to have to do better 13

than that. It’s a new application, if you have further 14

arguments to make, make them. If you’re going to make 15

them publicly, then you’re undermining your position 16

that certain things are privileged. 17

If you feel… 18


If I was of the opinion that I was doing so, I 20

would not ask for that. I mean, obviously, I can argue 21

it in a hypothetical manner, which I think, at the end 22

of the day, would solve the matter. 23

Again, I would be more than happy to do it ex 24

parte , if that’s… 25


- 4138 -



LA COUR : 1

No, no, if you want to do it now, go ahead. 2


All right. So essentially, essentially, the 4

bearing that this new evidence has on this question of 5

the hypothetical implication of BlackBerry, RIM, 6

synonymous or anybody else for that matter, in the 7

interception process -- I say the word hypothetical, 8

because the defence might have… there’s something on 9

that, and this is a matter that we’re trying to keep 10

privileged. 11

So what we are saying is that we’ve read basically, 12

and this is our understanding, your judgement as 13

basically stating that that implication is not a matter 14

of privilege. We do not feel that it is -- it is not 15

our position that this new evidence can change that, 16

because this new evidence goes to data integrity. 17

So it would… 18

LA COUR : 19

Okay, but where -- I’m sorry to interrupt -- but 20

where in the new evidence are you referring to that 21

paragraph 23 of Boismenu’s report? Is that the only 22

part? 23


It’s 23 to 25. I can tell you this from memory but 25


- 4139 -



let me just make sure. 1

LA COUR : 2

Well 24 and 25 refer to the key; 23 would refer to 3

data integrity. 4


Okay, so 25, specifically 25. 6

LA COUR : 7

But I think it would be more 23. 8


23 and 25, but you’re right that 24 relates to the 10

disclosure of global key, 23 and 25. 11

LA COUR : 12

Well, let’s start with 23. Don’t you feel that 13

everything in 23 was already disclosed publicly in 14

Boismenu’s report that was filed on the public record? 15

Let’s start just… 16


It is public also, right? 18

LA COUR : 19

Yes, yes. 20


So both are complementary, they touch on the same 22

issue; so obviously, there will be some areas of -- not 23

redundancy but of… 24

LA COUR : 25


- 4140 -



Overlap, overlap. 1


But in a nutshell, what this adds, it adds a 3

guarantee of data integrity on the process prior to 4

interception. Hence, from the sending of a sending to 5

the reception of it. 6

LA COUR : 7

Right. 8


Whereas as the first report, as pointed out, 10

covered the area specifically of data interception and 11

decryption. So we cover that end. 12

On this, if it’s taken for its content and we 13

suggest it to the Court that it should, both parties, 14

it gives to the Court assurance that data integrity is 15

maintained on that end of the equation. 16

LA COUR : 17

All right. Stop there for a minute. 18


Yes. 20

LA COUR : 21

How does that affect privilege? 22


That’s the -- when we read your judgement, we both 24

read it as it not affecting the fact that it is worthy 25


- 4141 -



of protection by way of privilege. If it was so, and 1

you do have at paragraph 282 of your judgement a 2

passage that says that… 3

LA COUR : 4

282? 5


Yes, that says that basically, it is not; and if it 7

were, the balancing would still be favourable to the 8

defence, all right? 9

So in that sense, data integrity, on our mind, only 10

affects that area of the balancing exercise. In other 11

words, would you say: well, it is worthy of protection 12

but I have to balance interests? 13

We would argue that this additional information, in 14

conjunction with what has already been given to the 15

Court in our mind, outweighs the utility for the 16

defence of the required information. But as we -- and 17

in that sense, right, that’s paragraph 4, 3 and 4 of 18

our document. 19

But we both read your judgement as making it a 20

question of worthiness of privilege and we’re both of 21

the opinion that on that matter, this added information 22

doesn’t change the equation. 23

So that is why we said this morning that, given the 24

basis of your judgement, at the end of the day, we do 25


- 4142 -



not feel the need to reargue, but to be totally and 1

hundred percent (100%) precise, what you heard today 2

from my colleague Maître Lacy and myself is the summing 3

up of the relevancy of that information. 4

LA COUR : 5

It’s a very roundabout way. So I’m going to repeat 6

it again. Is there anything in the new information from 7

the RIM employee or Boismenu, the new evidence under 8

Section 23 motion, that you feel like you want to argue 9

ex parte or that you feel changes anything else in the 10

first judgement other than the global key? 11


Your Lordship, the representation I have just made 13

are what I would tell you ex parte . The exact same 14

replica of that is what I would tell ex parte . I do not 15

need to -- let me make myself clear. I do not feel like 16

I have to address the court’s attention to something 17

that is not known to the defence and that was brought 18

to you ex parte in order to make myself clearer, if 19

that is not the case, so… 20

LA COUR : 21

Well, by my repeating the question and by having 22

looked over your document a second time, sometimes 23

arguments could be made clear. So you’re saying that 24

you’ve already stated it. You don't feel, 25


- 4143 -



notwithstanding the Court’s invitation, you don’t feel 1

that you need to make any other argument ex parte , I 2

accept that and you’ve declined the invitation; and 3

I’ll base any decision I made upon the material in 4

front of me and what I’ve heard today. Thank you. 5


Thank you. 7


I’d just ask that that document be marked? 9


Yes, yes, of course. 11


I don’t think we’ve marked a copy, I have an extra 13

copy. 14


Yes. 16

LA COUR : 17

25-20. 18

Mr. Kapoor, you have anything to say about this 19

document? 20

Me KAPOOR : 21

No, I think it’s all… it’s all been said, thank 22

you. 23

LA COUR : 24

You find this document clear? 25


- 4144 -



Me KAPOOR : 1

I’m sorry? 2

LA COUR : 3

Well, your role as an amicus is to help me. 4

Me KAPOOR : 5

Right. 6

LA COUR : 7

Do you find this document clear? 8

Me KAPOOR : 9

I think the real business part of this document is 10

really paragraphs… 11

LA COUR : 12

The first two (2) are fine. 13

Me KAPOOR : 14

Yes, right. So that’s important, it’s important to 15

underscore that this is material that’s captured by 16

Stinchcombe and would otherwise be disclosed. 17

It’s also important to underscore that the new 18

information, as I understand it, as I understand my 19

friend’s submission of the Crown’s side, the new 20

information does not affect whether or not the 21

privilege is properly invoked. The new information 22

really only attach us to an assessment of the 23

balancing, were you to find that the privilege was 24

properly invoked, which of course, you didn’t. 25


- 4145 -



And my friend made submissions… 1

LA COUR : 2

So what you’re saying, only if I find that it is 3

privileged… 4

Me KAPOOR : 5

Yes. 6

LA COUR : 7

… on balancing, should it be disclosed anyway? 8

Me KAPOOR : 9

That’s what it goes towards and you’ll see that in 10

paragraph 282 which my friend, Mr. Rouleau, took you 11

to, 282 is the paragraph where you provide the 12

alternate conclusion even if you were incorrect in your 13

finding of a lack of privilege, if you were… if it was 14

to be found privileged, it would still be released on 15

the balancing, and we call that in 282. 16

LA COUR : 17

Right. But this new evidence that’s been produced 18

on the 37 application, if you tie that into that 19

paragraph 282, do you find that that new evidence has 20

any impact on the balance? 21

Me KAPOOR : 22

No. In my respectful submission, it doesn’t adjust 23

the balancing one width. This is not information that 24

attacked… this is not -- I’m sorry, some total of full 25


- 4146 -



answer in defence isn’t simply the extent to which 1

information goes to the merits. Information can go to, 2

for example, the Garofoli application. The 3

participation of RIM may be important for that 4

application and you’ve heard submissions from my 5

friends on that and certainly from me in closed. 6

So while my friend’s submission, that is the Crown 7

submission on data integrity, might have some bearing 8

on the merits of the cases, in my respectful 9

submission, that does not render it worthy of 10

protection, given the importance of RIM’s participation 11

to the outstanding applications filed by the defence. 12

So in my respectful submission, your order not to 13

change, notwithstanding the admission on consent of 14

this material. 15

LA COUR : 16

All right. 17

Me KAPOOR : 18

Those are the submissions I had, my Lord. 19

LA COUR : 20

Thank you for that. 21

Just on another topic related to this new evidence, 22

I’m looking at paragraphs 24 and 25 of Boismenu’s 23

report. So in paragraph 24, he refers to pre-recorded 24

encrypted communications that with the global key, one 25


- 4147 -



would be able to decipher all of the communications. 1

If you look at 25, which deals with the ability to 2

falsify pre-interception information, and there’s a 3

list of fifteen (15) different situations that would be 4

necessary in order to perform changes, Mr. Boismenu 5

says that the possibility is zero (0). 6

I’m just trying to reconcile 24 with 25. These 7

fifteen (15) sort of prerequisites indicated in 25, I 8

understand 25 deals with pre-interception, whereas 24 9

deals with pre-recording encrypted communications, but 10

would these fifteen (15) requirements also apply to the 11

ability to decrypt, pursuant to paragraph 24? 12

Because in 24, what the RCMP Sergeant is saying is 13

that the holder of the global key could decrypt any 14

messages transmitted using the encryption key, given 15

that the holder of the key has access to the messages. 16

Whereas in 25, he’s indicating the difficulties that it 17

would be to change an encrypted contact in pre-18

interception situations. 19

So I’m just trying to -- I understand they’re 20

different situations but I’m trying to reconcile the 21

two (2). Is that something that you have addressed? 22

Me KAPOOR : 23

Not particularly, I mean I have a view of it, but 24

that may be more useful for your Lordship if my friend, 25


- 4148 -



Mr. Rouleau, addresses you on it. 1

LA COUR : 2

All right. 3

Me KAPOOR : 4

Because he’s closer to this evidence than I am, and 5

I know my colleagues have done so. 6

LA COUR : 7

Okay. You and your colleagues will be free to 8

reply. 9

Me KAPOOR : 10

Yes, thank you. 11

LA COUR : 12

Go ahead, Maître Rouleau. 13


I’m happy to do so. 24, basically, what Mr. 15

Boismenu is saying is that we all have devices that 16

record the messages that we receive and send. So 17

there’s a record of that recorded in the machines. He’s 18

addressing the fact that with the global key, it’d be 19

an easy thing for an ill-intentioned individual in 20

possession of the global key to take a device and 21

forensically take out those communications from it. So 22

that’s the easy part. 23

As far as being able to temper or to try to 24

intercept any message from the time it is sent on the 25


- 4149 -



different channels to where it is intercepted and 1

eventually stored as a device, what Mr. Boismenu is 2

saying, in order to do that part, when the messages are 3

up in the air if you will, or in the circuits… 4

LA COUR : 5

Pre-interception. 6


Yes. These are the steps an individual would need 8

to be able to do. First of one which would of course be 9

holding the decryption key and so and so forth. 10

So he addresses the possibility that a message is 11

tempered with from the time it is sent to the time it 12

is received which is impossible, in his expert opinion. 13

LA COUR : 14

Okay, that I understand in 25. So 24, then it’s 15

restricted only, if you have the key, you’d have to 16

have the device… 17


Yes. 19

LA COUR : 20

… in order to decrypt the messages in the device. 21

You need the device. 22


Well listen, 24 says yes. 24

LA COUR : 25


- 4150 -



Well, if you… you’re looking back at someone, if 1

you need a minute to verify, go ahead. 2


Okay, I’ll just take that minute, just to make sure 4

of a point. Sometimes, there are… 5

LA COUR : 6

Go ahead. 7


And I can do it right away, your Honour. 9

LA COUR : 10

I’ll wait on the bench, go an find out. 11


Yes, yes. Can I just step outside the door? 13

LA COUR : 14

Is that Mr. Boismenu? 15


Yes, that’s Mr. Boismenu. 17

LA COUR : 18

Okay. 19

LA COURONNE, Me ROBERT ROULEAU, QUITTE LA SALLE D’AUDIENCE 20

POUR CONFÉRER AVEC L’EXPERT, MONSIEUR PATRICK BOISMENU 21

LA COUR : 22

Madame Clerk… 23


Yes. 25


- 4151 -



LA COUR : 1

… could you please call my office, my assistant and 2

find out if the Gouin room is available to us the whole 3

week of January eleventh (11 th ), the five (5) days of 4

that week, eleventh (11 th ) to the fifteenth (15 th ) 5

inclusive and to let you know as soon as possible. 6

Me ROBERT ROULEAU REVIENT DANS LA SALLE D’AUDIENCE 7


Yes, your Lordship, I think what you put out is 9

essentially right, but the caveat is the following and 10

it’s a good thing my colleague drew my attention to it. 11

It means the same thing but you need the actual 12

physical device in order to apply the recipe or, for 13

example, an enterprise server, where these messages 14

would be stored; in other words, any device where 15

messages are stored, whether it be a phone or an 16

enterprise server could be taped into to extract the 17

conversation and decrypt it. 18

So just to have… 19


I’m sorry. An enterprise server, you said? 21


Any physical device on which messages are recorded. 23

LA COUR : 24

So it wouldn’t be the situation that Mr. Lacy 25


- 4152 -



argued in the Telus motion where Telus stored, I 1

believe it was certain text-messages, it wouldn’t apply 2

to that then, because we’re dealing with BlackBerry or 3

it would? 4


To answer that precise question, I direct the 6

question to the expert, just to make… just to be a 7

hundred percent (100%) sure, because we’re referring to 8

another motion. 9

LA COUR : 10

All right. So you can check that in a moment, but 11

the bottom line, the difference between 24 and 25, in 12

24, someone has the encryption key, you need the phone, 13

the device to decrypt or, in your words, an enterprise 14

server, you’ll elaborate further on that after the 15

break. 16


Yes. And what would be the situation with a 18

telecommunication provider like Telus. So that’s 19

basically 24. 20

In 25, it deals with -- before the messages are 21

intercepted, and these fifteen (15) prerequisites, 22

these are things that the person, as you said, an ill-23

intentioned person would need in order to temper before 24

the sent message is received. 25


- 4153 -



In order words, while the message is in limbo, is 1

that right? 2


Yes. 4

LA COUR : 5

You can verify that at the break, and come back to 6

me. Thank you for that. 7

All right. Is there anything else on the privilege 8

issue? 9


May I just comment on those submissions? 11

LA COUR : 12

Please do. 13


As your Honour knows, we’re no longer looking for 15

the global encryption key on the basis of the new 16

evidence, and I’m not trying to overly complicate this, 17

but because of that, we didn't attack the affidavit on 18

other basis, but just to be clear, the way it’s 19

described by the affiant, the RCMP server acts like the 20

BlackBerry device. If you look at paragraph 22, it 21

basically acts like the device that’s intended to 22

receive the message. 23

And as we know, the evidence on this motion, from 24

Inspector Flynn (ph) was that all BlackBerry devices 25


- 4154 -



have the global encryption key built into the device, 1

right. So that’s what allows the deciphering of the 2

encryption. 3

LA COUR : 4

Well, it’s also Exhibit 25.9, it says the same 5

thing. 6


Absolutely, it is a matter of public record. 8

So I do understand the point, the distinction, your 9

Honour drew between paragraph 24 and 25, but what I 10

understand 24 to be -- just so it’s clear -- is this is 11

the sky is falling if you disclose the global 12

encryption key argument by the RCMP, because somehow 13

you’d be able to take it and decipher all of the 14

communications, (inaudible) communications because of 15

this key. 16

But the reality is if you could divert the content 17

of the message anyway, to a device somehow and get the 18

key, and you have the key in the -- if you could 19

simulate the BlackBerry device, whether or not you had 20

the global encryption key or not, you’d be able to 21

decipher the message. 22

But the bottom line is we’re not asking for the 23

global encryption key anymore. 24

LA COUR : 25


- 4155 -



Say that again. If you? 1


Well, as I understand it, based on the evidence, I 3

didn't hear obviously (inaudible) ex parte , but if I 4

had the ability to forward a PIN communication to any 5

other BlackBerry device and I could modify my device to 6

make it look like it was… the message was intended for 7

me, because my BlackBerry device contained the global 8

encryption key, I’d be able to read the content. 9

It doesn’t change the analysis at the end of the 10

day. At the end of the day, we’re not looking for the 11

global encryption key anymore based on the 12

representation, more so from what my friend confirmed 13

with RIM and what’s in the (inaudible) affidavit that 14

you get no content if you did not have the global 15

encryption key during the deciphering process. 16

And we understand 25 to be a distinct paragraph in 17

relation to the integrity of the data which is really 18

not related to paragraph 24. 19

LA COUR : 20

Okay. 21


Thank you. 23

LA COUR : 24

Any other counsel wish to make remarks? No? Okay. 25


- 4156 -



Crown? 1


No, I think we’ve cornered all the issues. 3

LA COUR : 4

Okay, all right. 5

The next step would be to… we’ll take a break to 6

allow you to talk to your expert but I would like to 7

embark upon an ex parte hearing with respect to the 8

redactions and then, I think I’ll prepare final 9

judgement with respect to the common law privilege. I 10

will have certain modifications, it was a draft. I can 11

point out what the modifications will be. They’re not 12

substantial. 13

In the conclusions -- well I think we’ll deal with 14

some of these at the ex parte hearing; and I’ll 15

indicate to you at that time what modifications there 16

will be and you can indicate that to defence counsel. 17

So that’s on the first disclosure motion where the 18

Crown invoked the common law investigative techniques 19

privilege. I’ll get a final judgement ready for you and 20

my judgement will be completely unredacted and sealed 21

in the Court record. You and Mr. Kapoor -- you and 22

Mr. Kapoor will each have a copy. There will be no 23

redactions on my copy and you will make the redactions 24

that we finalised, whether it’s later today or most 25


- 4157 -



likely tomorrow. 1

Once that’s done, I’ll prepare a judgement on the 2

Section 37 application. But before we go further on the 3

Section 37 application, just in order to be rigorous 4

about procedure, you had file two (2) affidavits, the 5

defence consented. Do you have any other evidence? 6


No, your Lordship. 8

LA COUR : 9

All right. Does the defence have any evidence, any 10

of the defence counsel have evidence? 11


No, thank you. 13

LA COUR : 14

Is there anything the amicus wants to present? 15

Me KAPOOR : 16

No, thank you, your Honour. 17

LA COUR : 18

Is that any other evidence that any of the counsel 19

Crown, defence of amicus wish to make? 20

Me KAPOOR : 21

Not from my side. 22

LA COUR : 23

All right. So you can indicated that, Madame Clerk, 24

for the record. Once I have the final arguments -- 25


- 4158 -



final judgement, sorry, prepared after our ex parte 1

hearing on the common law privilege, I just want to get 2

that out of the way, a shorter judgement will follow 3

under Section 37. 4

In terms of the common law privilege judgement, at 5

this point, in view of the way that we have proceeded, 6

I don’t think there’s any need to render it orally in 7

Court, the defence lawyers already have a copy of a 8

redacted judgement. They’ll get another copy of another 9

redacted judgement, you’ll just have it given to you by 10

the Crown or the police of whomever, or by the clerk if 11

you’re present in Court. 12

And we’ll have the same procedure follow with 13

respect to the second judgement, I’ll render a 14

judgement following an ex parte hearing, you’ll decide 15

what you feel has to be redacted. I’ll have some 16

comments and we’ll try to get that to the defence, this 17

whole thing done this week if possible, so they can 18

take or you can take, depending whatever steps are 19

necessary. 20

Any comments on that matter of proceeding? 21


No, your Lordship. 23

LA COUR : 24

That’s satisfactory? 25


- 4159 -




I think we’re fine with the schedule. 2


It is satisfactory, Sir. Of course, this week would 4

be great and we have circulated to Mr. Kapoor and Mr. 5

Rouleau a draft order that will be, once they fill in 6

the portions that are redacted that were not known to 7

us, they’ll be provided to you for consideration in 8

relation to the… 9

LA COUR : 10

Portions that are redacted that you want 11

unredacted? 12


No, no. We’ve filled in what we could fill in for a 14

draft order that would initiate the end of the process. 15

LA COUR : 16

A draft order on what? 17


On the Section 37. 19

LA COUR : 20

On Section 37? 21


Yes. 23

LA COUR : 24

All right. 25


- 4160 -




And I just commented… 2

LA COUR : 3

Well, I’m sorry to interrupt, but I understand your 4

position on Section 37 would be that the declarations 5

and orders remain the same with the exception of the 6

global key, that’s what your colleague Mr. Lacy said 7

Friday. 8


Yes. 10

LA COUR : 11

Is there any change to that? 12


No, no. 14

LA COUR : 15

No, all right. 16


There’s been no change. And I’ve just commented to 18

Mr. Lacy that I wasn’t -- you mentioned rigor -- I 19

wasn’t sure that we had asked that our submissions with 20

all of our arguments apply on Section 37, if we 21

haven’t, we are asking. 22

LA COUR : 23

Yes, I was getting to that and thank you for 24

raising it. 25


- 4161 -



I take it that all evidence heard on the common law 1

investigative techniques privilege claim, made by the 2

Crown in the context of our R-25 and R-32, the two (2) 3

disclosure motions by the defence, all evidence called 4

is versée, is applied to this application by the Crown 5

under Section 37, is that correct? 6


Yes. This is what was agreed upon. 8

LA COUR : 9

And all arguments whether that be by the Crown, by 10

the amicus , by any of the defence counsel with respect 11

to R-32 and R-25, disclosure motions by the defence and 12

the claiming of the common law investigative privilege 13

by the Crown, all that will be also equally… 14


Yes, that is what we wish. 16

LA COUR : 17

… applied to the Section 37 public interest 18

privilege application. 19

You have that, Madame Clerk? 20


Yes. 22

LA COUR : 23

Would you like me to repeat it? No, okay. Very 24

good. 25


- 4162 -



Maître Godbout, could you take my judgement on the 1

investigative techniques privilege. Go to footnote 2

number 1. 3


I’m sorry, I didn’t hear you. 5

LA COUR : 6

Footnote number 1. 7


Yes. 9

LA COUR : 10

So just to follow up on discussions to make sure 11

that there is accuracy here. I understand it should 12

read “ in the three (3) renewals ”, and we should delete 13

“ and two (2) complementary authorisations .” Is that 14

correct? 15


It is… it was mentioned (inaudible) that. 17

LA COUR : 18

Okay. So because the e-mail cross passed this 19

judgement, it was already done. So in order that that 20

footnote be correct, because it’s also raised later in 21

the judgement, in order that it’s be compatible with 22

what you and Maître Hebrard have verified, the third 23

line should read “ in the three (3) renewals ” and “ two 24

(2) complementary authorisations ” should be taken out. 25


- 4163 -



Is that right? 1


It was referred to to be really specific and one 3

complementary authorisation. I don’t have my e-mails 4

with me but I know I sent it, I know Maître Hebrard 5

probably has it. 6

LA COUR : 7

Go ahead. 8

Me MAXIME HEBRARD, 9


Let me check my e-mails. 11

LA COUR : 12

All right. If there’s a consent of how that line 13

should read, tell me now. 14


I think what we agree on whether… 16

LA COUR : 17

Because I don’t have all the authorisations. I 18

don’t have them all. 19


Not yet, in front of you, that’s correct. 21

LA COUR : 22

No. 23

LA DÉFENSE (Me MAXIME HEBRARD) : 24

I have the e-mail right now. 25


- 4164 -




Thank you, Maître Hebrard. 2


So it’s the first complementary authorisation only 4

corrected clerical errors but… 5

LA COUR : 6

I don't need to know that. Just look at the 7

footnote and in order that it be compatible with what 8

you’ve verified, let’s correct it right now. 9


It’s the second sentence, I believe it should be 11

“ ìn the three (3) renewals and one complementary 12

authorisation referred to at paragraph 3 in both R-25, 13

R-32 ”. 14

LA COUR : 15

Okay. And for the periods: February fourth (4 th ), 16

eleven (’11), twenty-five (25) to twelve (’12), that’s 17

all right? 18


Yes. 20

LA COUR : 21

All right. So then the sentence should be: 22

“ In the three (3) renewals and one 23

complementary authorisation for the 24

period February (4 th ), two thousand 25


- 4165 -



eleven (2011), February twenty-five 1

(25), two thousand twelve (2012). ” 2

And then the rest follows. 3


Yes, the Crown agrees. 5

LA COUR : 6

So both for the Crown, Maître Godbout, and defence, 7

Maître Hebrard? 8


Yes. 10

LA COUR : 11

Okay. Thank you very much for getting together and 12

clarifying that for me because you’re in possession, 13

both of you, of all of the authorisations and what have 14

you, I’m not. So thank you for that. 15

The one thing that I’m missing is there was an 16

application for a confirmation order in Ontario that I 17

refer to in the judgement. I don’t have it. I never got 18

it. 19


It’s all part of the exhibits… 21

LA COUR : 22

It has been, you’re saying? 23


So I’ve put it in Inspector Flynn. 25


- 4166 -



LA COUR : 1

The affidavit was. 2


The complementary authorisation, I thought I put it 4

but you may very well be right, it may have been in the 5

affidavit. 6

LA COUR : 7

All right. In any event, okay, we’ll take a break, 8

I’ll find the paragraph. I don’t need it, if there’s a 9

consent that there is such an order which I believe 10

there is and what date it was, I’ll just incorporate it 11

in the judgement and so that it’s complete for anyone 12

who’s interested in reading it. 13

All right. So Maître Rouleau, you can check with 14

your witness with respect to those questions. With 15

respect to the ex parte hearing, by the time we come 16

back it’s be in fifteen (15) minutes, do you want to 17

start that today or do you want to do that tomorrow? 18


I’m going to check with Maître Kapoor because… 20

Me KAPOOR : 21

We might get it started today. 22

LA COUR : 23

I’m ready. 24

Me KAPOOR : 25


- 4167 -



Yes. 1


May I? 3

LA COUR : 4

Please do. 5


Your Lordship, if I may, before taking -- instead 7

of taking a break and coming back with the answer, give 8

me a minute, I will speak with Mr. Boismenu, come back, 9

because if we start with the ex parte , we need to sweep 10

the room and… so then I can’t really come back in front 11

of you publicly, if we do the ex parte after the break. 12

So it could give us time to sweep the room and 13

everything, so… 14

LA COUR : 15

No, no, I’ll step out and I’ll come back in and 16

then we’ll take the break. 17


Okay, fine, that’s all right, okay. 19

LA COUR : 20

I mean it’s very nice of you here but I think that 21

if you need a few minutes, which could be longer, I’ll 22

go in the back and take the time that you need. 23


Okay. 25


- 4168 -



LA COUR : 1

All right? 2


All right, thank you. 4

LA COUR : 5

It’s no problem. And at the same time, I’ll check 6

on the availability of Gouin for that week in January 7

so that we can clarify that. 8


Okay. 10

LA COUR : 11

So take the time you need. I’ll find out. 12

SUSPENSION DE L’AUDIENCE 13



So your Lordship, the best way I can put it, as far 16

as paragraph 23 is as you put it, if you get in 17

possession of an actual device or if you could 18

physically tape into any company’s server that keeps, 19

that stores the messages for a period of time. 20

For example -- ça va? All right. For example, 21

Justice department, provincial Justice department, we 22

use BlackBerry, messages are sent but at the end of the 23

process, they are stored on computers, basically on 24

servers. 25


- 4169 -



So if somebody could tap into that, with the key, 1

they’d have the ability to decode the messages that are 2

stored there. So independently of where the messages 3

are stored… 4

LA COUR : 5

Are you saying like text-messages, PIN messages 6

could be stored in telecommunication server like Telus, 7

for example? Because we have the example of Telus 8

motion here. 9


If the raw data is stored on a given server, with 11

the encryption key, messages could be pulled and 12

unscrambled. 13

LA COUR : 14

So you’re saying a (inaudible) BlackBerry message 15

with the global key could be retrieved, for example, 16

from stored Telus, all right. Okay, I understand, 17

you’ve answered. It’s fine. 18


Okay. So as Maître Kapoor mentioned, I think it’d 20

be useful to start the ex parte process this afternoon 21

if the Court so orders. 22

LA COUR : 23

Yes. 24



- 4170 -



So we’ll have the room swept and be ready to 1

proceed as soon as that is done and have the equipment, 2

of course, set up before recording. 3

LA COUR : 4

All right. Mr. Kapoor, we have you until what time 5

tomorrow? 6

Me KAPOOR : 7

I could stay for most of the day. I was hoping to 8

try to be concluded all by the luncheon break tomorrow 9

so I can back. But if it’s not, it’s not, we’ll carry 10

on till we’re done. 11

LA COUR : 12

All right. So we’re going to start today and 13

perhaps we’ll go a little over, if the Court staff is 14

amenable to that and we’ll start at the beginning of 15

the judgement, we’ll go to the end. 16

Me KAPOOR : 17

Thank you. 18

LA COUR : 19

And we’ll take it from there. 20

On the scheduling issue, I can’t get a guarantee 21

right now whether Gouin is available that week of 22

January. So what we’re going to do is we’re going to 23

leave the schedule as we had originally fixed it, 24

fourteenth (14 th ) and fifteenth (15 th ) of January, were 25


- 4171 -



already fixed, we have this room in Laval. 1

So we have those dates, the fourteenth (14 th ) and 2

fifteenth (15 th ) and we’re going to keep them. If you 3

find out that you don’t need those dates prior to the 4

twenty-second (22 nd) of January, let me know as soon as 5

you can. 6


December? 8

LA COUR : 9

December, right. Thank you, just making sure you’re 10

paying attention. 11

But… so we’ll leave the schedule as it was, 12

fourteenth (14 th ) and fifteenth (15 th ) of January, the 13

fourteenth (14 th ) will be our first day after the 14

holiday break, but all counsel that had told me they’d 15

revised the schedule possibly for the New Year on the 16

twenty-second (22 nd) of December, and, before that 17

date, if you realised that you don't need those dates, 18

let me know and we’ll attribute them in another way. 19

Okay. So we’ll break now and we will reconvene and 20

let’s just determine this because we won’t have 21

everybody here until the twenty-second (22 nd), is that 22

correct? 23


Yes, that’s our assumption. 25


- 4172 -



LA COUR : 1

All right. So the twenty-second (22nd) of December, 2

all of the accused will be present and I understand all 3

counsel, unless there’s… I’m advised otherwise. 4

Today and tomorrow, we’ll do the ex parte revisions 5

that we’ve just spoken of. Is there anything else for 6

this week, the second (2 nd), the third (3 rd ) or the 7

fourth (4 th )? No, okay… 8


Yes, well, there’s just the matter of fixing -- 10

Maître Shoofey is here to fix the date for the bail 11

hearing. 12

LA COUR : 13

One moment, not yet, just for this week. So what 14

we’ll do this week though, because I want you to remain 15

available, once we’ve done the redactions on the first 16

judgement, I’ll get that judgement to you, so you can 17

distribute it to lawyers in the way that we’ve redacted 18

it with Maître Kapoor but on the second judgement, 19

under Section 37, we’re going to need maître Kapoor 20

also. 21


Yes. 23


We expect that will likely be shorter offering, 25


- 4173 -



your Lordship. 1

LA COUR : 2

I think what we’re going to do if we time tomorrow, 3

I’m going to prepare a draft that I won’t distribute 4

and at the ex parte hearing, I will read certain 5

excerpts, they’re not long, I will read certain 6

excerpts and you’ll let me know. 7

And then what I’ll do is I’ll give the judgement 8

under Section 37, someone from the Crown will pick it 9

up and through proper channels, I’ll send it to you… 10

Me KAPOOR : 11

Yes. 12

LA COUR : 13

… in Toronto, you can have discussions with the Crown 14

and you can send me back your -- if there’s any 15

differences in the redactions, once you get it in 16

writing from what we’ve discussed here, you’ll let me 17

know. 18

Me KAPOOR : 19

Yes. 20

LA COUR : 21

And if there’s a hearing that required, we have the 22

time. We’ll do it and you’ll come in Montréal in 23

December, that’s all. 24

Me KAPOOR : 25


- 4174 -



That’s fine. 1

LA COUR : 2

All right? 3

Me KAPOOR : 4

Good, thanks. 5

LA COUR : 6

It that agreeable, maître Rouleau? 7


Yes, of course. 9

LA COUR : 10

Defence? 11


Yes, Sir. 13

LA COUR : 14

That’s suitable? 15


Yes, sir. 17

LA COUR : 18

Okay. Mr. Shoofey, not often I get to hear from 19

you. 20

Me DOMINIQUE SHOOFEY, 21

Procureur de l’accusé Calogero Milioto : 22

Concerning Mr. D’Addario’s bail, you have asked me 23

on Friday that you wanted the parties be available. 24

LA COUR : 25


- 4175 -



Right. 1

LA DÉFENSE (Me DOMINIQUE SHOOFEY) : 2

Maître Émond would be available tomorrow. I did 3

verify the days with Maître Larochelle, he is available 4

for the eighth (8 th ), tenth (10 th ) and eleventh (11 th ), 5

he has confirmed by e-mail. 6

LA COUR : 7

Fine, okay. I just wanted to avoid doing it on 8

consecutive Fridays. I’d like there to be a flow. Are 9

you advised or perhaps the Crown as how many witnesses? 10


There will be two (2) on our side, that is… 12


I am not advised on the number of witnesses. That’s 14

why Maître Émond made herself available for tomorrow if 15

need be. 16

LA COUR : 17

I think she should be here then rather than fix a 18

date… 19


Yes. 21

LA COUR : 22

… fix three (3) days with the experiences I’ve had 23

here on these motions, she’s got to be here. 24



- 4176 -



Okay. I will relay the message for her to come. 1

LA COUR : 2

Okay. So since we’re starting the ex parte today, 3

we’ll have to do it an open Court tomorrow and then 4

you’ll have to do another sweep after. We’ll do that. 5

And her, I know she’s tied up elsewhere, it’ll be 6

quick. 7


Is there a preferable time for her, nine thirty 9

(09:30) to be here? 10

LA COUR : 11

Start at nine thirty (09:30) tomorrow, is that 12

okay? 13


Okay. I will relay the message, thank you. 15

LA COUR : 16

All right. So no dates fixed for the Addario 17

matter, but we understand that Maître Émond wants to do 18

it on the eighth (8 th ), tenth (10 th ) and eleventh (11 th ). 19


Well, I know Maître Larochelle is available, he’s 21

ready to do it without Maître Émond. 22

LA COUR : 23

All right. So better than Mr. D’Addario’s lawyer be 24

present tomorrow, so that she or he can answer the 25


- 4177 -



questions on the time involved, the number of 1

witnesses, et cætera , but those dates are tentatively 2

set aside for that. This week we’ll deal with the 3

redactions and getting the judgments out on privilege 4

and then, you can let me know later on in December, I 5

understand we’re going to be dealing on the sixteenth 6

(16 th ) with the Tim Hortons motion, is that right? 7


Yes. 9

LA COUR : 10

Okay. 11


And as for the presence of the accused? 13

LA COUR : 14

Well, for the Tim Hortons motion, who’s the party 15

to that motion? 16


Mr. Simpson and Mr. Racaniello. 18

LA COUR : 19

So they’re going to be here when we do the Tim 20

Hortons motion? 21


Yes. 23

LA COUR : 24

Yes. 25


- 4178 -




They should be here. 2

LA COUR : 3

Yes. And for the bail hearing for D’Addario, he has 4

to be here. 5


Of course. And for tomorrow, although Mr. 7

D’Addario’s lawyer will be here, Maître Émond, do we 8

need Mr. D’Addario here for this pro forma few minutes? 9

No? 10


Mr. D’Addario has indicated that it’s not 12

necessary. 13

LA COUR : 14

Okay. So you have no objection to that? 15


Of course not. 17

LA COUR : 18

Okay. So Mr. D’Addario, tomorrow your lawyer is 19

going to come. We’re going to fix a date, tentatively, 20

the suggestion is the eighth (8 th ), tenth (10 th ) and 21

eleventh (11 th ), next week, that’s Tuesday, Thursday 22

and Friday. It might go longer, it might go shorter, we 23

don’t know. 24

But for the purposes of setting the dates, Mr. 25


- 4179 -



Shoofey tells me that you’re asking to be excused, so 1

you expressly renounced your right to be present? All 2

right. So you can note that, Madame Clerk, he’s 3

dispensed from being present tomorrow. 4

So I’ll see all counsel and all accused back here 5

on the twenty-second (22 nd) of December and I’ll see a 6

specific counsel and a specific accused with respect to 7

any motions we’ll be dealing with prior to the twenty-8

second (22 nd) of December. 9

And for the time being, we’re reconvening after the 10

holiday break on the fourteenth (14 th ) of January, nine 11

thirty (09:30) and we booked the fifteenth (15 th ) of 12

January, the weeks of the eighteenth (18 th ) and the 13

twenty-fifth (25 th ), they’re booked at the present time 14

and after that, we haven’t fix the specific dates but 15

I’ve indicated certain dates, counsel have asked me, 16

Crown and defence counsel have asked me not to sit and 17

that’s been reconfirmed today. 18

Is there any other administrative issue that has to 19

be discussed before we take a break? 20


We see none. 22

LA COUR : 23

All right. Defence? No, all right. 24

Thank you for your presence today. Good day, we’ll 25


- 4180 -



take a fifteen (15) minute break. 1

SUSPENSION DE L’AUDIENCE AFIN DE PERMETTRE AUX CONSTABLES 2

SPÉCIAUX DE FAIRE UNE FOUILLE COMPLÈTE DE LA SALLE AFIN QUE 3

LA COUR PUISSE PROCÉDER À L’ EX PARTE 4

FIN DE LA SÉANCE 5

CAUSE REPORTÉE PRO FORMA AU 22 DÉCEMBRE 2015 DEVANT 6

L’HONORABLE MICHAEL STOBER, J.C.S 7

FIN DE L’AUDIENCE 8

9

------------------ 10

11

Je, soussignée, DANIÈLE F. TASSÉ (#289078-0), 12

sténographe officielle bilingue, certifie sous mon 13

serment d’office que les pages qui précèdent sont et 14

contiennent la transcription fidèle des témoignages 15

rendus dans cette cause, dont l’enregistrement audio a 16

été effectué hors de mon contrôle et est au meilleur de 17

la qualité dudit enregistrement. 18

Le tout conformément à la loi. 19

Et j’ai signé, 20

21

Danièle F. Tassé, s.o., o.c.r. 22

DANIÈLE F. TASSÉ, 23

Sténographe officielle bilingue 24

25


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