SUPREME COURT OF CANADA

CITATION: R v. Ro, [2019] 1

DATE: 201903301
S.C.R. 392, 2019 SCC
DOCKET: 30508
10
BETWEEN:

Her Majesty the Queen

Appellant

and

L. Ro
Respondent

OFFICIAL ENGLISH TRANSLATION

CORAM: Deschamps J., McLachlin C.J. and S. Cote, Iaccobucci, Rothstein,
Abella and Charron JJ.

(Deschamps J.,McLachlin C.J. and

REASONS FOR JUDGMENT: S. Cote, Iaccobucci, Rothstein,
Abella and Charron JJ. concurring)

Constitutional law -- Charter of Rights -- Retroactive Legislation – Post De facto Law—Allegation

of Constitutional and Legislative fraud -- Whether legal statutes were fraudulently altered for
benefit of Crown – Respondent charged with Drug Trafficking offenses - Criminal Code, ss.
234.1(1) , 235(1) , (2) , 236(1) , 237 -- Canadian Charter of Rights and Freedoms, ss. 7, 24(2) .
Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 6(1) .

The respondent, Lenard Ro has appealed a conviction for conspiracy to traffic marijuana
Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 6(1)

Facts
On August 26, 2008, a joint task force comprising of the Kitchener RCMP O-Division, Toronto
RCMP O-Division, Ottawa RCMP O-Division, London RCMP O-Divisons, IPOC- London RCMP
and the Waterloo Regional Police undertook a criminal investigation on a suspect that was alleged
to be trafficking in Controlled substances.
On July 13, 2009, the joint task force completed their criminal investigation and charged the suspect
on 2 counts of conspiracy to traffic marijuana Controlled Drugs and Substances Act, S.C. 1996, c.
19, s. 6(1)
On August 16, 2009, the suspect opted to bypass the preliminary inquiry and requested
disclosure as per R. v. Stinchcombe, [1991] 3 SCR 326, 1991 CanLII 45 (SCC).
On November 2, 2009, the first voir-dire hearing took place. Evidence was provided by the
crown which stated that their investigation was contingent on 2 wiretap conversations. Both of
these conversations were with the same unknown drug runner or in the particular case, an
individual who would deliver drugs on Leonard Ro’s behalf and collect money for illicit drug
sales and purchases. These 2 wiretaps were based on the following scenarios which were
corroborated with video surveillance.
In the first wire-tap transmission, there was a discussion of a “meeting at the Eaton Centre’
because Mr. Ro ‘needed to purchase a printer’, the second wiretap was based on a ‘meeting at
the bus terminal, since he had to purchase a new bus pass”. According to Officer Dave Clark
from the Waterloo Regional Police Service, the ‘printer’ meant that he was brandishing a semi-
automatic pistol and the word ‘purchase’ meant that he was going to meet his delivery runner to
undertake a drug transaction. Physical surveillance was deployed and found that Mr. Ro in fact
was meeting his supposed runner who turned out to be his University of Toronto classmate.
According to surveillance video at the Best Buy on Dundas St. and Bay St., Mr. Ro was not seen
to exchange any packages and purchased a brother laser printer. The laser printer was later
searched and found that the laser printer was empty, however wiretap information received the
next night in the RCMP communications room erroneously found that a drug transaction had
occurred.
The classmate was later investigated and it was found that the classmate was not involved in Mr.
Ro’s alleged criminal activities.
In the second wiretap, Mr. Ro was seen purchasing a bus pass at the Sherbourne bus terminal.
Although he met with another university classmate, no transaction took place and he was being
monitored from the TTC Subway video surveillance system. In the video recordings, he
purchased a bus pass and went to school. The next day however, 5 controlled drug purchases
were made for 1pds, 10 pds, 2 pds, 3pds, 10pds, from various undercover agents deployed from
the Toronto Police Services Central Field drug squad. Although Mr. Ro was not identified at the
scene, various individuals picked up their marijuana packages at various terminal locker facilities
and one behind the counter at Burger King restaurant located at Spadina and College St.
Officer Clark indicated that the ‘bus pass’ is a coded term for ‘drug transaction’ and ‘purchase’
referred to the purchase of various controlled substances. This assertion was found to be
inaccurate.
On November 2, 2009, the Honourable Justice Epstein ruled that the information contained
within the wiretap itself was vague and ‘did not substantiate the issuance of the wiretap itself”,
given Mr. Ro was not seen at the areas of where the undercover TPS officers undertook their
drug purchases. The Honourable Justice Epstein ruled that the wiretaps would be excluded under
Criminal Code, ss. 234.1(1) , 235(1) , (2) , 236(1) , 237 -- Canadian Charter of Rights and
Freedoms, ss. 7, 24(2) . Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 6(1) .
Epstein: After reading the Part VI Wiretap authorization, I have found that the
information contained within the wiretap is vague and the authorizing judge should not
have issued the authorization based on the omissions and errors. As such I will be
excluding the wiretap as evidence and make a ruling that the authorization infringed on
Mr. Ro’s Charter of Rights and Freedoms.

On November 4, 2009, the Crown’s office brought forth an application to include sworn
testimony from several TPS drug squad officers indicating that the marijuana that was purchased
had various ‘identifiable’ markings on the packages which have resembled Mr. Ro’s typical
packaging methods. This included, ‘marijuana in zip-lock bags’ and ‘having the zip-lock
concealed in an envelope’. This was found to be inaccurate based on the fact that the defense
questioned the legitimacy of the officer’s claim, due to the size of the marijuana and the size of
an envelope that was purported to conceal the controlled substances.
On January 5, 2010, a 2nd voir-dire hearing took place. The sworn testimony from 3 TPS officers
and 2 RCMP officers were contested in the courts. The Honourable Justice Braid requested to
speak with the PPSC director George Dolhai and the defense counsel. In this particular meeting,
the Honourable Justice Braid asked if the sworn statements were the only evidence that tied Mr.
Ro to the various controlled purchases in the Toronto area. The undercover TPS officers
indicated that they had wiretap evidence before, but it was found to be inadmissible based on
Justice Epstein’s ruling in the 1st voir-dire motion. As such, the Honourable Justice Braid
indicated that the sworn testimony without physical surveillance and wiretap evidence was
insufficient to tie Mr. Ro to the controlled purchases and withdrew the conspiracy to traffic
charges. The Honourable Catrina Braid dissenting:
C. Braid: ‘sworn statements from the undercover TPS officers, without having arrested
the intermediary or drug runners and picking up marijuana from various locations does
not substantiate a warrant for committal. This is insufficient to tie Mr. Ro to the various
controlled purchases, regrettably’.
On September 9, 2010, the Crown brought an application to overturn the judicial rulings by the
Honourable Justice Epstein and the Honourable Justice Braid. In the Ontario Court of Appeal,
Justice Fuerst, Justice Watts and Justice MacLean dismissed the federal crown’s application.
On August 10, 2012, the Supreme Court of Canada heard the federal crown’s appeal and leave
was granted after a 5-day hearing.
On January 15, 2015, the Supreme Court of Canada unanimously dismissed the federal crowns
application. In an unprecedented 12-0 ruling, the Supreme Court of Canada found that the
respondents Charter of Rights were infringed and similarly found that the provisions contained
within the legislation were fraudulently omitted, altered and modified thru the purposeful attempt
to deceive the defense. In addition, the Supreme Court of Canada found that several case laws
used in the respondent’s indictment were not formally adjudicated in the federal courts, thereby
bypassing the procedural formality of due-process and the administration of justice.
On October 19, 2018, the PPSC, along with the federal crown attempted to indict Mr. Ro for
proceeds of crime charges as per the Proceeds of Crime Act (2002), however found that an
endorsement from a forfeiture application in 2016 provided Mr. Ro immunity from prosecution
for charges (section 15) and from assets seizures (section 16) prior to December 04, 2006. The
PPSC and the federal crown requested further information from the TPS drug squad requesting if
the funds were derived prior to the 2006 indictment. At which time they found that those funds
could not be seized under section 462.33 of the Criminal Code or section 14 of the Controlled
Drug Substance Act (1996) based on the existing immunity clause.
On October 20, 2018, three officers Bryce O’Malley, Trevor Murphy and James Fisher argued
that although a judicial order existed, that the “immunity clause” would not be applicable, if the
seizure was after the December 04, 2006, since Justice Epsteins ruling was restricted for
transactions or ‘events’ prior to December 4, 2006 and in essence a seizure in the present day
constituted a ‘seizure outside the immunity period”. However, the Honourable Justice Epstein
indicated that the derivatives were a direct result for an ‘event or transaction’ which fell within
the immunity clause period. This meant that those funds could not be seized under the Criminal
Code, Proceeds of Crime or Controlled Drug and Substance Act provision (Section 16-Assets).
More importantly, according to the agreed statement of facts, the respondent could not be
charged for offenses prior to December 04, 2006 (Section 15-charges). At the forfeiture hearing
which took place on May 9, 2016, the respondent was implicit prior to consenting to the
disposition of funds that were seized in a prior indictment
“one of the stipulations […] anything prior to 2006, things that were investigated, not
seized, things that were seized, returned and items which were investigated, charged
withdrawn as part of a plea deal not be reinstated… (section 15-charges) of the immunity
clause”.
This meant that charges or the indictments prior to December 04, 2006 for “any event or
transaction” could not be indicted in the future for those specific transactions within the
immunity clause period. The Honourable Justice Epstein then apprised the officers of Section
11g of the Charter of Rights and Freedoms. An indictment must consider the date of an ‘offense’,
rather then the date in which an offense is indicted [emphasis added]. In addition, Section 11h of
the Charter of Rights and Freedoms limits the ability of the federal government to indict Mr. Ro
on the same charges repeatedly. This limitation would result in an autrefois acquittal.
Officer Bryce O’Malley and Trevor Murphy were then removed in the case, based on an internal
investigation which sought the arrest of various police officers alleged to have undertaken child
pornography and child sexual abuse at a day care centre in Toronto, Ontario. Officer James
Fisher was also removed from the case due to allegations of child sexual exploitation in the
lower eastside area of the Vancouver.

Questions of Law
S. Cote: The challenge of constitutional law is founded on a premise of judicial fairness which has
in this case, impeded the accused Charter of Rights and Freedoms, Section 7. In particular, the
respondent has challenged the constitutionality of legislation which was rescinded once the
Criminal Code was ammended, while the respondent faced conspiracy to traffic marijuana
charges, under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 6(1) . The new
legislation has provisionalized and ammended the statutes which inadvertently resulted in the
respondents rights being infringed as per Section 11 of the Charter of Rights and Freedoms. In
addition, the respondent has brought forth very serious claims of legislative fraud which in the
respondents opinion, has had a detrimental effect on his livelihood and ability to provide full answer
and defense. Lenard Ro claims that various police officers, shadowing as legal representatives have
fraudulently omitted and modified provisions in the Criminal Code to ensure that the legislation
would coincide with their legal objectives, while the respondent faced conspiracy to traffic charges
as per Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 6(1). Given the seriousness of these
allegations, the Supreme Court of Canada granted leave to ensure the high courts would consider
legal arguments and substantiate the respondents claims.
The Court of Appeal’s found that provisions contained within the Criminal Code were modified to
ensure that the crown, along with the supporting case law coincided with her Majesty the Queens
objectives. This objective ensured a guilty verdict would be reached, thereby bypassing the
procedural formality of a criminal inquiry and ensuring the respondent would be found criminaly
responsible. The respondent has also challenged the legality based on retroactive legislation as per
Section 11 of the Charter of Rights and Freedoms and indicates that the legislative fraud has
undermined the justice system as a whole, along with diminishing the publics confidence in the
judiciary, which is vital in a democratic and lawful society. He has also claimed that the process
itself has infringed on his Charter of Rights and Freedoms -Section 11- and requested remediation
by the high courts. The respondent has relied on Section 7 and 24.2 of the Charter of Rights and
Freedoms to find that his constitutional rights were infringed and remedied through the exclusion of
evidence.

Post-de-Facto Législation
S. Cote : Mr. Ro, your claim that your constitutional rights were infringed based on legislative
fraud has shaken the Supreme Court of Canada’s premise of judical fairness and the
aforementioned rights of an accused. The very serious nature, of such a claim, has diminished the
role of the judiciary and essentially has brought the whole judicial system into disrespute. The
respondent claims that provisions codified in the legislation were altered […] if confirmed…
would likely result in the diminished public confidence, jurisprudence and the constitutional
privileges safeguarded in our Charter of Rights and Freedoms.
Under section Section 11g of the Charter of Rights and Freedoms when cited in its entirety,
provides safeguards for an respondent’s rights in criminal and penal matters. Accordingly, the
provisions states:

11. Any person charged with an offence has the right

(g) not to be found guilty on account of any act or omission unless, at the time of the act
or omission, it constituted an offence under Canadian or international law or was criminal
according to the general principles of law recognized by the community of nations;

In the present context, the respondent has relied on Section 11g of the Charter of Rights and
Freedoms and indicates that the provision provides safeguards which limit the ability of the
Public Prosecution Service of Canada and the policing agencies to indict his prior conduct, given
that the provisions contained within the legislation was not enacted until 1996 in the Controlled
Drug and Substance Act CDSA 1996 and essentially was not legislated by Parliament.

An offense which has not been legislated by the Parliament of Canada at the time the offense
occured, cannot have prima facie of culpability as per Section 11g of the Charter of Rights and
Freedoms. The respondent has relied on CNG Producing Co. v. Alberta (Provincial Treasurer),
2002 ABCA 207, Selkowitz v. Inverness (County), 2007 NSSC 383, Procter & Gamble Inc. v.
Ontario (Finance), 2010 ONCA 149, Bernesky v. Smith, 2003 SKQB 96 (CanLII) — 2003-03-03,
Aheer Transportation Ltd. v. Office of the British Columbia Container Trucking Commissioner,
2018 BCCA 210 (CanLII). Recent Developments in Canadian Law: Constitutional Law, 1986
CanLIIDocs 5 WH McConnell.

Offences which occurred prior to or post-de-facto of the legislation as per section 11g of the
Charter of Rights and Freedoms, is a crucial determinant on whether the legislation would
confound an individuals conduct and its basis of its criminality. This means that the legislation
itself is a determinant on the success or failure of her Majesty the Queen to successfully
prosecute an individual such as Mr. Ro. The basis of a successful indictment and its inadvertent
outcome would diminish the confidence of the public if Mr. Ro would be repeatedly indicted on
several occasions, only to have his legal representative or the worship quash such an indictment -
autrefois acquittal- as per R. v. Hall, 2000 CanLII 16867 (ON CA) and breach Section 11h of the
Charter of Rights and Freedoms. More important is the question of contesting a police disclosure
which has not been scrutinized by the defense’s cross examination in a voir dire hearing, thereby
bringing the administration of justice into disrespute.

In Transcanada Pipelines Ltd. v. Nova Scotia (Attorney General), 2000 CanLII 2055 (NS SC)
Justice Sopinka has indicated the necessity of the ensuring due process and the public confidence
prerequisite.
 In p269. Justice Sopinka states “[…] moreover, I am not convinced that a reasonable
member of the public would necessarily conclude that confidences are likely to be
disclosed in every case despite institutional efforts to prevent it […].

In R. v. Carriere, 2013 ABQB 645 (CanLII) — 2013-10-30. Justice Wakeling indicates the
importance of an individual’s ‘knowledge’ of the legislation and how that knowledge could
predetermine the conduct of his or her criminality. The basis of an individual conduct is
confounded in a principle of judicial fairness. If the conduct of an respondent is based on his
interpretation of the law, then the law must coincidently be known by the respondent. If the law
has been legislated post-de-facto of the respondent criminal conduct, then the respondent rights
would be infringed as per section 11g of the Charter of Rights and Freedoms.
Perhaps the most fundamental tenet of the rule of law is that those who are governed by
the law must have knowledge of its rules before acting; otherwise, any compliance with
the law on their part is purely accidental. Citizens must have knowledge of the law before
acting so that they can adjust their conduct to avoid undesirable consequences and secure
desirable ones. To ensure adequate notice, the rules enacted by the legislature must be
published and adequately publicized – ideally before commencement but at the latest
upon commencement. … Citizens cannot comply with, rely on or take advantage
of law unless they know what it is before deciding how they will behave.

In R. v. J. KremePye, 2014 ABQB 765 (CanLII), Justice Fuerst indicates:

The miscarriage of justice […] is typically based on an interpretation of the legislation
which is being argued by the Her Majesty the Queen and the defense counsel. If your
interpretation of the legislation is correct, then the applicability of the legislation in the
case at bar would be correct. However, this assumption is based on the constitutionality
of post-de-facto law and it does not have any applicable status given the law was not a
law at the time the offenses occurred. In essence, the legislation itself cannot determine
one’s guilt based on a perception of what may in fact be the legislation in the future.

Fraudulent Legislation and Unlawful Provisions Contained within the Code

The counsel for the accused has also alleged very serious claims of negligence, fraud and
deceitful legislation which as he claims, fraudulently placed in the Criminal Code without
legislating the provisions thru the Parliament of Canada, thereby rendering the legislation
unlawful [emphasis added] and questions the legitimacy of such action. The defense contends
that these officers have also fraudulently written case law which were not adjudicated thru a
formal court process. Inadvertently diminishing ambiguity by ensuring that the case law would
coincide with the officers objectives in the case at bar.
In determining whether provisions were formally introduced into the legislation lawfully, we
must first interpret the formal procedure in which a bill becomes law in Canada. A bill which is
introduced into the legislature – House of Commons, must be mandated and provisionalized thru
the democratic process which includes 3 readings, prior to the bill going into the Senate of
Canada for approval. The formal process includes:

[…] written notice, 48 hours approval and issuance. This is granted automatically, and
the motion is deemed carried, without debate, amendment or question put, pursuant to
Standing Order 68(2).

The Speaker then proposes the motion for first reading and, pursuant to Standing Order
69(1), the motion is deemed carried, without debate, amendment or question put. The
Speaker then asks: “When shall the bill be read a second time?” and the Members
answer, “At the next sitting of the House.” This formality allows the bill to be placed on
the Order Paper for second reading under the heading “Government Orders” or “Private
Members’ Business”.

The purpose of first reading is to allow the bill to be introduced so that it may be printed
and distributed to all Members. Passage of the motion for first reading simply means that
the House agrees to the introduction of the bill without any commitment beyond the fact
that it should be made generally available for the information of Parliament and the
public. It is at this stage that a specific number is assigned to the bill.

Senate bills have already been printed when they are sent to the House of Commons.
Accordingly, the request for leave to introduce a Senate bill in the House of Commons is
not required. The motion for first reading is deemed carried without debate, amendment
or question put, pursuant to Standing Order 69(2). Senate bills then pass through the same
stages as House of Commons bills.

These necessary steps ensure that the administration of justice is served, along with ensuring
transparency for the general public. Legislative fraud which undermines the judiciary includes as
in Mr. Ro’s case, a purposeful attempt by legal representatives to administer provisions not
codified in the legislation itself. Cases where the provisions have been altered without the
introduction of a bill which amends the provisions and backdating those provisions which ensure
that the retroactive legislation has been adopted lawfully. The discretionary importance of
ensuring these procedures are followed are enshrined in the constitution. Without these
procedures, an individual who has access to the legislature could introduce laws, amend
provisions, and omit current provisions without the scrutiny of the opposition and general public.
Inadvertently this would result in a “one-man rule” and undermines the ability of a defense
counsel to dispute specific provisions (i.e. lawful exercise of our judiciary). This would
demonstrate an abuse-of-process and could be construed as having very serious implications for
the judicial system as a whole.
The respondent has relied on CIBC Trust Corporation v. Horn, 2008 CanLII 39783 (ON SC) —
2008-08-07, ADM Agri-Industries Ltd., 2001 CIRB 141 (CanLII) — 2001-11-15, Re Atlantic
Sugar Division of Atlantic Consolidated Foods Ltd. and Local No. 443 of the Bakery &
Confectionery Workers International Union of America (No. 2), 1975 CanLII 1144 (NB CA) —
1975-11-07, R. v. Gisby, 2000 ABCA 261 (CanLII) — 2000-10-02, Re Oshawa Cable TV Ltd.
and Town of Whitby, 1969 CanLII 427 (ON SC), Charpentier v. Smith-Doiron, 1981 CanLII
2681 (QC CS) — 1981-01-23
Justice Watts in R. v. Rhoghain (2010) has indicated that the lawful exercise of our judiciary and
importance of the constitutional prerequisites in drafting the legislation before the Parliament of
Canada, is enshrined in the rights of an accused in a democratic society.
On p 9, Justice Watts states: The importance of the judiciary and its vital role in our
society cannot be dictated by a process which undermines the constitutionality of the
legislation which may have not been mandated and provisionalized by the Parliament of
Canada. This in itself would mean that the legislation is unlawful and I would confer that
the legislation being adopted is a fraudulent attempt by an unlawful authority. Whether
the authority is the police agency, then […] it is an unlawful policing agency. If it is the
legal representative […] then it is an unlawful legal representative. If it is the crown
attorney […] then it is an unlawful crown attorney [emphasis added],

Personal and Commercial Conflict-of-Interest

The respondent has claimed that a significant conflict-of-interest exists in the case. According to
the accused, this has diminished his ability to provide full answer and defense and ability for a
fair trial as per section 7 of the Charter of Rights and Freedoms. The respondent has claimed that
his rights have been infringed given the relationship status of the crown, Honourable Justice, and
the police officers in the particular case, thereby invoking a breach of Section 15 of the Charter
of Rights and Freedoms and the Conflict of Interest Act (2006) .
Section 15 of the Charter of Rights and Freedoms states :

• 15. (1) Every individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.

From the onset of this discussion, we must first interpret the definitions contained within the
Conflict of Interest Act (2006) .

“public servant has the meaning assigned by subsection 2(1) of the Public Servants
Disclosure Protection Act, but includes officers and non-commissioned members of the
Canadian Forces and employees of the Canadian Security Intelligence Service or the
Communications Security Establishment”

“public office holder means

• (a) a minister of the Crown, a minister of state or a parliamentary secretary;

• (a.1) the Chief Electoral Officer;
 • (b) a member of ministerial staff;
• (c) a ministerial adviser;
• (d) a Governor in Council appointee, other than the following persons, namely,
o (i) a lieutenant governor,
o (ii) officers and staff of the Senate, House of Commons and Library of
Parliament,
o (iii) a person appointed or employed under the Public Service Employment
Act who is a head of mission as defined in subsection 15(1) of the
Department of Foreign Affairs, Trade and Development Act,
o (iv) a judge who receives a salary under the Judges Act,
o (v) a military judge within the meaning of subsection 2(1) of the National
Defence Act,
o (vi) a Deputy Commissioner of the Royal Canadian Mounted Police, and
o (vii) a member of the National Security and Intelligence Committee of
Parliamentarians;
• (d.01) the Parliamentary Budget Officer;
• (d.1) a ministerial appointee whose appointment is approved by the Governor in
Council; and
• (e) a person or a member of a class of persons if the person or class of persons is
designated under subsection 62.1(1) or 62.2(1). (titulaire de charge publique)

Section 21 of the Conflict-of-Interest Act ((S.C. 2006, c. 9, s. 2) states:

Duty to recuse

21 A public office holder shall recuse himself or herself from any discussion, decision,
debate or vote on any matter in respect of which he or she would be in a conflict of
interest.

According to the respondent, the ability for a fair trial is based on the independence of the
judiciary and its findings in a particular case. In the present case at bar and the previous cases, it
has been found that the respondent faced significant challenges based on the relationship status
of various court appointed administration, the Honourable Senior Justice and the Crown counsel.

The respondent has relied on Allain Sales & Services Ltd. v. Guardian Insurance Co. of Canada,
1996 CanLII 12052 (NB QB), R. v. J.L.A., 2009 ABCA 344 (CanLII) — 2009-10-23, The Tip of
the Iceberg: A Survey of the Philosophy and Practice of Canadian Provincial and Territorial
Judges Concerning Judicial Disqualification, 2011 CanLIIDocs 159, R. v. Anderson, 2009
SKPC 57 (CanLII) — 2009-05-04, Rando Drugs Ltd. v. Scott, 2007 ONCA 553 (CanLII) —
2007-08-01, R. v. Trunzo, 2012 MBQB 211 (CanLII) — 2012-08-08, Lesiczka v. Sahota, Sahota,
et al., 2007 BCSC 479 (CanLII) — 2007-04-05, Ultracuts Franchises Inc. v. Wal-Mart Canada
Corp, 2005 MBQB 222 (CanLII), Edmonton Flying Club v. Edmonton Regional Airports
Authority, 2013 ABQB 108 (CanLII) — 2013-03-01, Gualtieri v. Canada (Attorney General),
2007 CanLII 7406 (ON SC) — 2007-03-12, Johnston v. Stewart McKelvey Stirling Scales, 2014
PECA 8 (CanLII) — 2014-05-12, Button v. Jones, 2003 CanLII 16098 (ON SC) — 2003-07-16,
Farmer v. Hirtle, 2014 NSSM 82 (CanLII) — 2014-11-03, West v. Wilbur, 2002 CanLII 41690
(NB CA) — 2002-12-18

The respondent has claimed that the personal conflict-of-interest has diminished the integrity of
the process itself, thereby confounding the premise of a biased and skewed judiciary residing
over Mr. Ro’s indictment. A fair trial is contingent on the independence of the judiciary who
presides over a particular case. If a justice or crown counsel or court appointed staff or victim is
related to one another, a significant conflict-of-interest arises. As Wilkens (1996) indicates, the
integrity of the judiciary and ethical obligations are confounded in due process and judicial
fairness for an accused:
One response to the notion that disciplining bodies deal effectively with conflicts of
interest in litigation is that disqualification remains necessary, not as a sanction, but to
protect the “integrity” of the proceeding.[emphasis added] 74 The argument is that it
undermines the court’s integrity to allow a lawyer with a conflict of interest to remain in
the representation, and thus to continue to violate the applicable rules of professional
conduct. The force of this argument derives, however, from a questionable assumption
about what it means when a court denies a disqualification motion. If one assumes that a
lawyer acts unethically by remaining in the representation after a disqualification motion
is denied-i.e., that the lawyer has an ethical obligation to withdraw notwithstanding the
court’s decision-then this argument about judicial integrity has considerable sway.
M. Rothstein: The integrity of the process is based on a premise to ensure judicial fairness,
thereby reducing any attempt to influence the adjudication-process and those individuals who
may preside over such process. The basis is enshrined in the Charter of Rights and Freedoms.
The problem with Mr. Ro’s prior cases, was that a significant conflict-of-interest was established
based on the relationship between counsel, crown and the justice. Mr. Ro had not received a fair
trial based on this connection. The administration of justice was served, however predetermined
his guilt based on the conflicted-status of the participants in his previous case. In essence, Mr. Ro
was found guilty without the proper affordances typically found in an impartial and equitable
judicial hearing [emphasis added].

Credibility of Officer, Misinterpretation of Events during Surveillance and Issuance of

Part VI Authorizations
According to the respondent, the credibility of the officers and his lack of formal training
attributed to the misinterpretation of events surrounding Mr. Ro’s indictment. The joint task
force spent close to 1 year investigating Mr. Ro and after the investigation was finalized,
attempted to indict Mr. Ro on trafficking charges based on erroneous wiretap information. The
information contained within the warrant had not substantiated the issuance of the warrant itself.
In addition, it was found that Mr. Ro was not involved in criminal activities and the police
officers has significantly infringed on Mr. Ro’s Charter of Rights and Freedoms.
Mr. Ro was alleged to be trafficking in marijuana in contravention of the Controlled Drugs and
Substances Act, S.C. 1996, c. 19, s. 6(1) . Niagara Regional Police, The Toronto Police Service,
Hamilton RCMP and the OPP undertook a 9-month investigation based on hearsay information
that the accused was trafficking marijuana. Although this information was not corroborated,
privileged information obtained prior to the indictment confirmed the allegations and was
erroneously used to support the Part VI Wiretap authorization as per 184.1(2) of the Criminal
Code of Canada. After the investigation finalized, the officer had purchased 1.5pds or 672 grams
of marijuana in a controlled purchase, only to find that the ‘marijuana’ was in fact “lawn grass”.
The accused sold the officers (through an intermediary runner), lawn grass which was confirmed
by Health Canada. The accused never once indicated that the substance was a controlled
substance, he indicated this is “brick grass” or “best type of grass that you can find, grown on the
rich Niagara soil and on the best property”. Dave Clark headed the 9-month investigation which
purchased approximately $110,000 worth of controlled substances or what was thought to be
marijuana but ended up being lawn grass compressed in Zip-Lock Bags. In each drug
transaction, the suspected dealer always indicated that the officer was purchasing ‘grass’ or
‘brick grass’ and never eluded to the controlled substance as marijuana.
In another criminal investigation, the various policing organization hired 6000+ police officers
and police agents which were given 2 years with an estimated expenditure of over $410 million
for 16 years. Each civilian was able to work in tandem with various officers, drive around in
vehicles following Mr. Ro and afforded the right to be paid as police officers. Unfortunately, this
has also infringed on the respondent privacy as per his Charter of Rights and Freedoms.

In Mr. Ro’s previous indictment R. v. Ro, 2006 CanLII 36499 (ON SC), the case was contingent
on three different wiretap authorizations issued over the course of 6 months. A lengthy pre-trial
motion centered on a Garofoli hearing as per R. v. Garofoli, [1990] 2 SCR 1421, 1990 CanLII 52
(SCC) which contested the issuance of the wiretap authorization. The basis of the issuance
amongst several issues was the fact that the police never undertook ‘physical surveillance’ and
had to resort to wiretapping techniques in order to corroborate that the accused was involved in
drug trafficking activities.

Sections 186(1) and (1.1) of the Criminal Code of Canada reads as follows:

186. (1) An authorization under this section may be given if the judge to whom the
application is made is satisfied

(a) that it would be in the best interests of the administration of justice to do

so; and

(b) that other investigative procedures have been tried and have failed [emphasis
added], other investigative procedures are unlikely to succeed or the urgency of the
matter is such that it would be impractical to carry out the investigation of the
offence using only other investigative procedures.
 (1.1) Notwithstanding paragraph (1)(b), that paragraph does not apply where the
judge is satisfied that the application for an authorization is in relation to
(a) an offence under section 467.11 [participation in activities of criminal
organization], 467.111 [recruitment of members by a criminal organization], 467.12
[commission of offence for criminal organization] or 467.13 [instructing commission
of offence for criminal organization];
(b) an offence committed for the benefit of, at the direction of or in association
with a criminal organization; or
(c) a terrorism offence.

[10] Therefore, according to s. 186(1), a wiretap authorization may be given if the

authorizing judge is satisfied that the following requirements are met:

• the best interests of justice requirement (s. 186(1)(a);

and

• the investigative necessity requirement (s. 186(1)(b).

Justice Martin in R. v. Garofoli, [1990] 2 SCR 1421, 1990 CanLII 52 (SCC) indicates that based
on the highly intrusiveness of wiretapping on an individuals privacy as per Charter of Rights
and Freedoms, wiretapping or room monitors (listening devices monitors) should be used as a
‘last resort’.
Justice Martin in R. v Garofoli 1988 CanLII 3270 (ON CA), 41 C.C.C. (3d) 97, writing for the
Ontario Court of Appeal stated at page 127:

“ The American cases with respect to the ‘necessity requirement indicate that mere
conclusory statements of police officers unsupported by facts are insufficient to meet the
necessity requirement. Whether there are viable alternative investigative techniques
available such as the use of visual surveillance, searches, informers and undercover
agents, will to a large extent depend on the nature of the investigation and the facts of the
particular case. It is relevant, for example, to consider whether the subject of the
investigation with respect to whom electronic surveillance is sought is a street dealer in
narcotics who is dealing with an undercover police officer, or, on the other hand, is a
person alleged to be in the upper echelons of a conspiracy to import or traffic in
narcotics, and who is careful to insulate himself from direct contact with either the
narcotics or the distributors. The caution exercised by the subject or subjects of the
investigation is relevant not only to the unlikelihood of being able to penetrate a large
conspiracy by undercover agents, but also to the ineffectiveness of surveillance which
will merely provide evidence of the meetings of the subjects of the investigation, as
distinct from the discussions between them.”
 [30] With respect to investigative techniques, the authorizing judge must satisfy himself
that sections 184.2 and 186.1 have been complied with.

In the new investigation, the police were successful in deploying over 6000 officers + police
agents over the course of 16 years, all of which are ‘credible’ and can attest to the fact that
‘surveillance techniques’ were useful in the new investigation. In this particular instance, the
suspect was seen driving around on a daily basis and the issuance of electronic monitoring would
likely fail [emphasis added] when contested in the courts as per R. v. Araujo, [2000] 2 SCR 992,
2000 SCC 65 (CanLII) and in R. v. Garofoli, [1990] 2 SCR 1421, 1990 CanLII 52 (SCC) . The
most ‘efficient” means [policing technique] should not be construed as being the most easiest to
deploy, given the very seriousness nature of this technique and intrusiveness of Mr. Ro’s
privacy. The case at bar set a precedence on determining the prerequisites for wiretapping, given
the lawful exercise and discretion when undertaking this policing procedure. Officer Clark
inaccurately portrayed Mr. Ro’s involvement in trafficking activities when the Niagara Regional
Police indictment was withdrawn by crown counsel, based on the purchase of ‘lawn grass’ as
opposed to ‘marijuana’. Officer Clark may have misinterpreted the “investigative necessity”
prerequisite typically required when undertaking a Part VI wiretap authorization as per Part VI
Wiretap authorization as per 184.1(2) of the Criminal Code of Canada. Section 186(1)b is
implicit, the ‘investigative necessity’ of wiretapping an accused suspected in criminal conduct
should only be deployed when previous ‘methods have tried and failed’. In the new
investigation, surveillance techniques, albeit with 6000+ commissioned officers were successful
in surveillancing Mr. Ro, whereas in the previous 2004 indictment, the police were unsuccessful
in the surveillance deployed, thereby rendering the use of a wiretap authorization(s) useless. In
addition, the new investigation deployed undercover police officers to undertake controlled
purchases of marijuana in contravention of the Controlled Drugs and Substances Act, S.C. 1996,
c. 19, s. 6(1) , given the provisions contained within Section 186(1)b, the ‘investigative
necessity’ threshold has not been met and the authorization would fail when contested.
Commentary by the Supreme Court of Canada found multiple deficiencies in the affidavit
provided to the Justices. In addition, the officers in Mr. Ro’s case were found to have serious
credibility issues.
S.Cote: Based on the lack of transparency in the wording of the warrant, I would find
Mr. Clark uncredible and as such, expunge all of his police notes and affidavits in this
case at bar.
F. Iaccobucci: The affiants and information contained within the authorizations would
not substantiate the issuance of a warrant.. […] and as a result the authorization and all of
the warrants would fail [emphasis added] […]
Rothstein: It seems the credibility of the officers have undermined the investigation,
thereby resulting in a significant and costly legal challenge. The fact that fraudulent and
deceitful tactics were used in the present case, I would find that the defendants Charter of
Rights and Freedoms were infringed. As such, I find that both the affiant and auxiliary
officers pari delicto in this case.
60 Day Continuance Order and Unlawful Electronic Monitoring Interception
The length of the investigation has significantly infringed the accused section 8 in the Charter of
Rights and Freedoms, thereby likely invoking the remedial action of 24.2 of the Charter of
Rights and Freedoms. The provison stipulates that an authorization must be reviewed by a Superior
Court Justice every 60 days. This ensures an equal balance between the privacy rights of an accused
and the need electronic monitoring. The problem with Mr. Ro is that, he was not involved in
criminal activities.
In a cross examination, officer Clark stated:
L.Watts: Sir, are you knowledgeable on the provision which states you must get a new
authorization endorsed from a superior court justice every 60 days. Every 60 days you
must prove to a judge why its important to continue wiretapping Mr. Ro, correct?
D.Clark: We only started the investigation in 2018, so we received 3 authorization from judges
and when we went for a 4th authorization the judge said to close the investigation
V. Arsenault: Mr. Clark, you mean to tell me that the judge told you to close the
investigation after the 3rd authorization?
D.Clark: Yes
V. Arsenault: From my understanding the investigation was for 16 years, are you saying it
was only 6 months?
D. Clark: 6 months, Yes that is correct
L. Watts: Are you saying this because of the cost factor or perhaps the recent news articles
on CNN, etc…. of wasted city resources as indicated by the Prime Minister, Premier and
now the RCMP commissioner?
D. Clark: no
A. Gold: Mr. Clark, will you admit that you only wiretapped Mr. Ro for 6 months then?
D.Clark: Yes
L. Watts: Did you record Mr. Ro in sensitive areas such as the washroom and shower,
perhaps bathtub? What does this have to do with a drug investigation?
D.Clark: Well we received information that he used to do drug transactions in the shower and
count money in the shower and bath tub
L. Watts: From your own surveillance reports and hearsay information, it was believed
that he counted money in a spare bedroom or in the kitchen area. Where did you receive
information he counts money in the shower and meets drug runners in the shower?
D.Clark: I’m not at liberty to divulge any privileged or confidential information.
L. Watts: You mean to tell me you set up cameras in his washroom because you claimed he
counted money in the shower or met his dealers in the shower?
D. Clark: Yes
L. Watts: Sir, wouldn’t the money or marijuana or cocaine get wet?
D. Clark: Maybee it was in a ziplock bag and the money is waterproof, that’s why we changed it
to poly notes instead of paper money
L. Watts: [.. laugh] …may I remind you that you are under oath, Please tell me why you
are recording Mr. Ro in the washroom and showers?
D. Clark: I don’t remember sorry.
L. Watts: If you were to charge someone for surreptitious recordings in one’s home, albeit
that surveillance recordings still do not constitute a breach of section 162, what length of a
sentence would you ask from the crown’s office for recording Mr. Ro in the shower?
D. Clark: I would give them a warning, perhaps tell them to tone it down
L. Watts: So, you wouldn’t charge them, or provide any criminal implications?
D. Clark: No, I wouldn’t
L. Watts: What about photographing and/or photoshopping… explicit photos?
D. Clark: Once again I would give them a warning.
L. Watts: What about criminally charging them?
D. Clark: Ok, I see what your getting at…. maybee $50 fine, maybe $100 if they make it
available to public
L. Watts: So, you say a fine in lieu of a criminal charge or sentence?
D. Clark: yes, just a small fine

The accused has relied on R. v. Blizzard, 2001 CanLII 14068 (NB QB) — 2001-01-11, R. v.
Ahmad, 2009 CanLII 84783 (ON SC) — 2009-11-19 , R. v. Lee, 2001 BCSC 1895 (CanLII) —
2001-10-25, Buckingham v. The Queen, 2007 NLTD 88 (CanLII) — 2007-04-17, R. c.
Desjardins, 2014 QCCS 6712 (CanLII) — 2014-11-12 , Barthelus c. R., 2018 QCCS 4655
(CanLII) — 2018-03-29 ,R. v. Appleby, et al. #4, 2007 NLTD 52 (CanLII) — 2007-02-28 ,R. v.
Mac, 2016 ONCA 379 (CanLII) — 2016-05-18 ,R. v. Wong et al, 2001 BCSC 202 (CanLII) —
2001-02-06 ,R. c. Lahache, 2017 QCCQ 12870 (CanLII) — 2017-10-17 , R. v. Adam et al, 2006
BCSC 200 (CanLII) — 2006-02-06
SCC Ruling:
S.Cote: The wasted expenditures for her Majesty the Queen and its determinant on a successful
indictment likely resulted a biased interpretation of Mr. Ro’s criminal conduct. This was likely
based on a police-tunnel-vision perspective, which typically filters evidence to only include
evidence which supports a conviction, while ignoring evidence that supports ones innocence.
This likely confounded Mr. Clarks ignorance towards the lawful conduct of a contributing
member of society which may have had a criminal history 16 years ago for offenses which have
now been decriminalized (i.e. 326 grams of marijuana as a 1st Year U of T student).
In the history of Canada, no policing agency has spent over $410 million on salaries for
commissioned officers over the course of 16 years, monitoring and wiretapping an individual
purported to be involved in crime. This in essence was a very serious breach of section 8 in the
Charter of Rights and Freedoms . The repeated attempts to indict Mr. Ro for trafficking and
money laundering offenses could be viewed as an ‘over zealous[ed]’ attempt to implicate an
honest business owner, given the fact that the that Mr. Ro has immunity for trafficking and
proceeds charges prior to 2006. Mr. Ro has not been involved in criminal conduct and it is
important to note that marijuana has been decriminalized in the process.
Mr. Ro has repeatedly contested each warrant, authorization and order, thereby significantly
debilitating the federal governments and policing agencies ability to proceed with an indictment.
The wasted time and expenditures for Her Majesty the Queen is an embarrassment for the
administration of justice, along with a significant breach of Mr. Ro Charter of Rights and
Freedoms.
F. Iaccobuci: Officers from the Toronto Police Service, Niagara Regional Police Service, OPP-
Niagara Falls detachment and the RCMP (Ottawa, London, Kitchener) set up a very costly
investigation which resulted in the deployment of UC agents and operatives. The endeavour was
successful, however success should be viewed in the context of the result achieved as opposed to
the result desired. In this respect, the policing agencies have failed [emphasis added]. The failed
investigation may have been based on the lack of foresight or perhaps an inaccurate
interpretation of Mr. Ro’s criminal conduct. What type of policing agency undertakes controlled
purchases of $110,000 of ‘lawn grass’ without testing the controlled substance with Health
Canada or the Food Inspection Agency. Both of these federal agencies have testing facilities. I
shall make a judicial endorsement and perhaps attempt to modify the Standard Operating
Procedures to ensure these procedures in this case are corrected.