A drug importation case involving three men collapsed after a Brampton judge found the RCMP illegally wiretapped their communications — a situation made even worse by an officer who was found to have “falsely” testified about the investigation while on the stand.
Superior Court Justice Cynthia Petersen dismissed cocaine importation-related charges against Brano Andrews, Roberto Leyva and Keith Hamid last October in an oral ruling. Her damning written ruling released earlier this month outlines why she threw out all wiretap evidence and also takes to task the RCMP officer who swore the affidavits in order to secure those wiretaps.
She found police were careless and misled — though not deliberately — a different judge beginning in September 2016 when seeking the wiretaps, finding they did not, in fact, have reasonable and probable groups to tap the accused men’s private communications.
Compounding this constitutional violation was the fact that the officer responsible for getting judicial approval for the wiretaps, Const. Kirsten Link, was found to have misled court by “falsely testifying” in front of Petersen while being cross-examined about the affidavit she swore to.
When asked under cross-examination why details in her affidavit did not match the RCMP’s approved and budgeted investigative plan for the case, Link testified there had been a last-minute change in plans that she reflected in her affidavit, though the judge found there was no evidence that the plan had changed. Instead, she found that Link was careless in the drafting of her affidavit but refused to acknowledge her mistake on the stand.
“I am deeply troubled by Cst. Link’s effort to cover up her misconduct by falsely testifying before me that there had been a change of plans that she assiduously reflected in her affidavit,” Petersen wrote in her 49-page ruling. “She ought to have accepted responsibility for the inaccurate and careless way in which her affidavit was drafted.”
After balancing the constitutional violation of the men’s charter rights, which the judge said was worsened by Link’s false testimony, with society’s interest in a trial, Petersen decided to throw out the wiretap evidence. As a result, the men were found not guilty of the drug charges. A separate charge of breach of trust against Andrews was also dismissed.
“The price paid by society for an acquittal without a trial on the merits in the circumstances of this case is high, but it is outweighed by the importance of maintaining charter standards and safeguarding charter rights,” Petersen wrote.
Asked if Link wanted to comment on the ruling, an RCMP spokesperson said it would be inappropriate to comment as the Crown has filed a notice of appeal in this case. The spokesperson confirmed Link remains on active duty.
Ravin Pillay, who represented Leyva along with lawyer Harval Bassi and who conducted Link’s cross-examination, said they were grateful for the judge’s findings.
“This case exposes the dangers of unlawful wiretapping and its devastating impact on constitutional rights,” Pillay told the Star. “No one is above the law and illegal police conduct, as found here, must be met with significant consequences to prevent its repetition. Indeed, the exclusion of illegally obtained evidence in this case protects us all.”
The case dates to January 2016, when an off-duty Canada Border Services Agency officer was spotted by a colleague removing a box from a container that had arrived on a flight from Pakistan. Contrary to CBSA protocol, he was not accompanied by another customs officer, and he travelled to and from the warehouse in a blue pickup truck instead of in a marked CBSA vehicle, according to Petersen’s ruling. He also did not complete the required paperwork for removing the box.
The CBSA alerted the RCMP, which began an investigation into whether the employee had committed the offence of breach of trust. According to the ruling, the employee’s phone records showed he had been in frequent contact with Leyva’s phone as well as with a phone belonging to Andrews, another CBSA employee.
Eventually, the RCMP’s investigate plan, according to Petersen’s ruling, was to gather evidence on the employee and his potential co-conspirators by intercepting his communications.
But if there was limited chatter, the next step was to “stimulate” communications, which would include emailing a suspicious vehicle alert to CBSA employees with a photo of the blue pickup truck, in the hopes that such an email would prompt the CBSA employee to contact his co-conspirators. Link, who was the warrant officer on the case, was responsible for drafting and swearing the affidavits that led to a judge granting authorization over a number of months for the wiretaps.
The three co-accused men were allegedly intercepted discussing a conspiracy to import cocaine through Pearson airport, according to Petersen’s ruling. Investigators were able to seize two shipments of bricks of cocaine, and the co-accused were intercepted allegedly discussing their failure to get the missing shipment, the judge wrote.
The big problem with Link’s affidavit for the wiretaps, Petersen found, was that it gave the impression that police would immediately deploy one of the stimulation tactics — the email about the blue pickup truck — as soon as the wires were installed. But as the judge pointed out, the RCMP investigative plan was to postpone using stimulation tactics; the plan was first to wait and see what communications might be intercepted.
The judge said that a correct affidavit would have made clear that absent those stimulation tactics, police did not actually have reasonable and probable grounds to believe that wiretaps on the CBSA employee’s communications in September 2016 would provide evidence of a possible offence. Therefore, a wiretap authorization would likely not have been granted.
But making matters worse, the judge said, was that Link gave “dishonest testimony” when cross-examined last year by Pillay about her affidavit. Link denied on the stand that she had misrepresented the investigative plan to the judge who granted the wiretap orders; she testified that there had been a change between when the RCMP investigative plan had been approved and when she swore her affidavit a week later, and that she was reflecting this change in her affidavit.
Get more of today’s top stories in your inbox
Sign up for the Star’s Morning Headlines email newsletter for a briefing of the day’s big news.
Petersen rejected her testimony on this point as “not credible.” The judge said given the need to obtain internal RCMP approval for the investigative plan and the time and effort Link would have devoted to drafting such a lengthy affidavit, she found it “implausible” that such a significant last-minute change would have been implemented without any documentation of the decision.
“Her repeated insistence that there was a change of plans — despite the lack of any documentation to that effect and despite her own inability to recall the specifics of when or why the ostensible change occurred — suggests that she fabricated the story in order to cover up what she recognized was a failure on her part to fulfill her duties as a warrant officer,” Petersen wrote.
“I conclude, on a balance of probabilities, that she invented the purported change of plans during her testimony to try to detract from the misleading nature of her description of the investigative plan in her sworn affidavit.”