Hey there, time traveller! This article was published 4/4/2014 (1270 days ago), so information in it may no longer be current.
It is one of the largest, most elaborate undercover organized-crime investigations ever undertaken by Winnipeg police.
Now, questions are emerging about the evolution and execution of Project Sideshow, a Free Press investigation has revealed.
At the heart of the matter is how a longtime senior federal prosecutor who became a Court of Queen's Bench justice ended up overseeing tactics police used during the nearly two-year probe.
One of the cornerstone axioms of Canada's justice system is that "not only must justice be done; it must also be seen to be done." And this is where Sideshow becomes potentially problematic.
Court records show Justice Chris Mainella authorized six different legal applications in Sideshow that allowed police to monitor the inner workings of their criminal targets. He began hearing these applications only three months after he left the federal prosecution service and was appointed to the bench.
All of these applications were overseen by prosecutor Judy Kliewer, a former colleague of Mainella's who was the assigned Crown "agent" in Sideshow. And one of the main targets of Sideshow was a man Mainella and Kliewer had previously prosecuted together in a similar drug-related case.
Ian Mahon, the chief federal prosecutor with the Manitoba region of the Prosecution Service of Canada, told the Free Press defence counsel involved in Sideshow has made inquiries about Mainella's role in overseeing the applications.
Mahon said his office can't speak on behalf of judges or disclose any information about the legal applications made before Mainella, who was just appointed last month to Manitoba's Court of Appeal.
"Our office, of course, does not instruct or dictate policies or practices to the courts in Manitoba. Given the nature of our prosecutions, it is quite common that Crowns have matters adjudicated by people appointed from a variety of backgrounds, including prosecution services," he said.
A justice source speculated the issue may result in years of protracted delays and legal applications that could impact the eventual outcome of the case, but declined to offer specifics.
Police arrested a total of 14 accused last month after the Sideshow investigation came to a close. Investigators relied heavily on the use of judicially authorized warrants, which netted more than 300,0000 intercepted communications and paved the way to breaking up alleged drug cells in Manitoba, Ontario and British Columbia.
Here is what the Free Press has uncovered through publicly available court documents and transcripts:
— Three men — Baljinder Singh, Ronald Baldovi and his brother, Randy Baldovi, were arrested in February 2005 as part of a drug and money-laundering investigation by Winnipeg police. It's a case similar, albeit on a much smaller scale, to Project Sideshow. The central allegation was the same: Drugs were coming from Vancouver to Winnipeg and cash was going back in return.
— Mainella, then a federal Crown attorney, and Kliewer were involved in the prosecution of Singh, whose case was linked to his co-accused, the Baldovi brothers.
— Ronald Baldovi, now charged in Project Sideshow, had his charges stayed by the Crown in July 2007 — the same day he appeared for the start of his preliminary hearing along with his brother Randy, Singh and another man. Randy Baldovi pleaded guilty that same day and was ultimately given a six-year prison sentence for production of crack cocaine and possession for the purpose of trafficking. Singh was ordered to stand trial. Mainella did not conduct the preliminary hearing or the sentencing for Randy Baldovi.
— Singh, now suspected of being one of the top targets in Project Sideshow, eventually pleaded guilty to charges of possession of goods obtained by crime over $5,000, possession of cocaine and possession of a loaded restricted firearm. At sentencing in October 2009, Mainella was the Crown prosecutor.
— Singh received a 30-month sentence. It's clear from a review of the court record Mainella knew the case well, as he provided extensive details, including the allegations against the Baldovi brothers. Mainella also offered a detailed explanation of why Ronald Baldovi's charges were stayed two years earlier and the sentence Randy Baldovi received.
— The Project Sideshow investigation began in April 2012, when Mainella still worked in the Winnipeg office of the federal prosecution service. There were numerous targets identified by Winnipeg police, including Baljinder Singh and Ronald Baldovi. The Crown agent assigned to work on this project and represent police for the purpose of obtaining legal authorizations was Judy Kliewer from the Winnipeg office of the Prosecution Service of Canada.
— Mainella was appointed to the Court of Queen's Bench in October 2012 when the ongoing Sideshow investigation was six months old.
— In January 2013, Kliewer, as the Crown agent for the Sideshow case, made judicial application for what appears to be the key component of this case — legal authorization to begin the monitoring of communication and movements involving Sideshow targets. These included intercepted texts, phone calls, video surveillance and sneak-and-peek warrants that allowed investigators to covertly observe alleged criminal activity.
— Mainella, just three months into his role as a Queen's Bench justice, was the judge who authorized Kliewer's first application for the Sideshow wiretaps on Jan. 18, 2013. Such applications are made behind the scenes, rather than in open court, meaning the targets of the probe are not informed or given an opportunity to respond. The Crown, on behalf of the police, lays out the case it has so far and makes the request for legal authorization to obtain warrants. The applications are sealed and not available for public scrutiny. As a result, the Free Press is unable to say whether Ronald Baldovi or Singh are identified by name in the applications. Justice officials have also declined to answer that specific question, citing the sealing order.
— Mainella then appears to have become "seized" of the matter, essentially taking full conduct. This is a common practice so as not to involve too many other judges for fear of contaminating a potential judicial pool when the matter goes to court.
— As a result, Mainella granted five subsequent legal applications by Kliewer in 2013 — on March 19, May 20, July 12, Aug. 30 and Sept. 30 — according to Court of Queen's Bench records.
— Court records show there was only one known Sideshow-related application heard by a judge other than Mainella. That occurred on Oct. 25, 2013 and involved Queen's Bench Justice Joan McKelvey. Justice officials wouldn't say why Mainella didn't hear this application, as he'd approved the previous six.
— Justice officials also won't say how, or why, Mainella became the judge to oversee the legal applications or whether any concerns of a potential conflict were raised at any point, given his previous involvement in prosecuting Singh, and by virtue of that, having knowledge of Ronald Baldovi's prior case. However, Mainella is the only Queen's Bench justice — out of a potential pool of more than 20 judges — who participated in prosecuting a case involving Singh and Ronald Baldovi, two of the targets of the Sideshow investigation.
Earlier this month, Ronald Baldovi contacted a Free Press reporter from the Winnipeg Remand Centre to express concerns about the fairness of the case. This call prompted Free Press reporters to begin delving deeper into the investigation.
"We're upset by this," Baldovi said. It's important to note Baldovi is currently awaiting a decision on bail in provincial court. Submissions have been heard over two separate days this month and were the subject of a court-ordered publication ban. As a result, the Free Press is not able to make any reference to any materials, evidence or legal arguments presented during those hearings.
Singh declined a request to be interviewed from the Winnipeg Remand Centre.
The Free Press previously obtained an unsealed police overview of the Sideshow case through the provincial court. In total, police say they documented 92 kilograms of cocaine with a street value of $5 million, 31/2 kg of methamphetamine with a street value of $192,000, one kg of ecstasy with a street value of $20,000 and more than $4.3 million in cash believed to be from proceeds of drug sales throughout the Sideshow investigation.
The actual amounts of drugs and cash exchanged are believed to far exceed the amounts observed, police said. Officers were only able to seize a small amount of what they saw as they couldn't risk jeopardizing the investigation.
Where this case goes next isn't entirely clear. Several of the accused — including Ronald Baldovi and Singh — are now seeking access to the sealed information. Ronald Baldovi is among the first to apply for bail and no date has been set for a decision. It's possible others may follow his lead and seek judicial interim release.
In the wake of our investigation, the Free Press asked the following questions of Court of Queen's Bench Chief Justice Glenn Joyal:
What was the process that saw Justice Chris Mainella tasked with overseeing six Project Sideshow legal applications, beginning in January 2013?
Is there a policy prohibiting new justices from hearing cases/applications involving former colleagues for a set time?
Did Justice Mainella express any concerns about hearing these Sideshow applications from his former colleague, Crown attorney Judy Kliewer?
Did the Crown express any concerns about Justice Mainella hearing these applications?
Was Justice Mainella aware that two of the targets of these applications were Baljinder Singh, a man he and Kliewer had previously prosecuted, and Ronald Baldovi, a man whose case was tied to Singh's?
Joyal responded with the following statement:
"The specific Project Sideshow prosecution identified in Mr. McIntyre's email and the related questions he poses, relate to ongoing cases currently before the Court of Queen's Bench. Accordingly, it would not be appropriate for me as chief justice, or indeed for any judge of this or any other court, to comment upon any aspect of any judicial determination made at any stage of these cases.
Without commenting upon the specific details concerning the case involving Ronald Baldovi now proceeding in the Court of Queen's Bench, it would appear that a concern has been raised by an unidentified accused involved in Project Sideshow respecting Justice Mainella's judicial involvement and by extension, Justice Mainella's impartiality, as it relates to his granting of a judicial authorization in connection to Project Sideshow. While the press has every right to explore those matters it believes touch upon the public interest, an accused person, especially one represented by counsel, should know that rather than raise a legal issue in the media (where it is known, because of the principle of judicial restraint and the ongoing nature of the proceeding, that the judge in question and the court cannot comment), an aggrieved accused person may challenge and have adjudicated at trial, the validity of an earlier granted authorization. That challenge and adjudication takes place before a trial judge who is not the same judge who granted the authorization. Such a challenge and adjudication respecting the validity of the authorization, would take place in open court where the governing legal principles will be applied. If there is any foundation to an allegation of bias, real or apprehended, the accused person will argue for the appropriate remedy. Any decision by the trial judge is also subject to review in the ordinary course by the Manitoba Court of Appeal.
The questions that Mr. McIntyre poses in his email and the concerns that were raised by the unidentified accused touch directly or indirectly on the issue of a judge's impartiality. A concern about a judge's impartiality, if it has any basis, must find connection in the legal concept of judicial bias, real or apprehended. As a matter of general public information, where a judge's impartiality is challenged on the basis of bias, real or apprehended, certain governing principles apply.
The criterion for judicial disqualification that an accused may argue should, or should have occurred, is the concept of reasonable apprehension of bias. The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. A reasonable person must be informed not only of the relevant circumstances of the particular case, but also of the tradition of integrity and impartiality that are the backdrop for our judicial system and which are reflected in and reinforced by the judicial oath.
There are no 'textbook' cases of bias and in each case, the inquiry is highly fact-specific. Whether the facts, as established, point to financial or personal interest of the decision-maker; present or past link with a party, counsel or judge; earlier participation or knowledge of the litigation; or expression of views and activities, they must be addressed carefully in light of the entire context. There are no shortcuts.
One of the shortcuts that the courts have identified and rejected is that shortcut which flows from the proposition that apprehended bias will inexorably follow from a judge's prior involvement in proceedings involving the same litigant. For example, the mere fact that a judge had previously decided adversely a case involving an accused does not create a reasonable apprehension of bias. The presumption of judicial impartiality prevails in the absence of cogent evidence to the contrary."