Coutts trial sets precedent for police self-approval of warrants

With the publication ban now lifted, Robert Kraychik looks at how the Coutts trial saw the defendants' legal team successfully challenge the RCMP's ability to authorize its own digital surveillance without a warrant from a judge.

  • By
  • August 06, 2024
  • News Analysis

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The publication ban in the trial of Chris Carbert and Anthony Olienick that prohibited reporting on proceedings that took place in the absence of the jury has expired, given the trial's conclusion. It expired when the jurors retired and were sequestered to begin deliberating their verdicts for the charges against the two men.

Carbert and Olienick were found not guilty of the most severe charge against them: conspiracy to murder. The Crown alleged that the two men conspired to murder police officers during their time at the 2022 Coutts protest and blockade.

Both were found guilty of unlawful possession of a firearm for a dangerous purpose given that both brought guns to Coutts from their homes, with Carbert living in Lethbridge and Olienick's home being in Claresholm.

The two men were also convicted of mischief over $5,000 for their involvement in the blockade which intermittently obstructed cross-border vehicle traffic at the Coutts-Sweet Grass crossing linking Alberta and Montana.

Olienick was additionally found guilty of unlawful possession of an explosive device.

During pretrial proceedings, prior to the jury's empanelment, the Crown sought to qualify Barbara Perry — a social science professor from Ontario Tech University in Oshawa, Ont. — as an expert witness to testify in the trial.

Perry's professional profile describes her as a “global hate crime expert.” She is the director of Ontario Tech University's Centre for Hate, Bias, and Extremism. The prosecution intended to have her provide expert testimony as evidence of Carbert's and Olienick's ideological, philosophical and political points of view.

Titles of Perry's speeches over recent years include terms such as “trans identified women”, “Islamophobic”, “right-wing extremism”, “white pride”, and “hate crime”.

Justice David Labrenz, the judge overseeing the trial, rejected the prosecution's attempt to qualify Perry as an expert witness, stating his discomfort with an ostensible expert engaging in mind-reading of the accused and relaying such assessments to jurors under a veil of authority.

During its operations at the Coutts protest, the RCMP authorized its own digital surveillance of mobile phones — phone calls and text messages — without obtaining authorization from a judge. It did so by utilizing a legal procedure allowing such surveillance warrants to be self-authorized via circumvention of the standard requirement to secure a judge's approval.

This legal procedure requires the claim that the circumstances at play posed a threat of “imminent harm” to life and limb, and that the urgency of the circumstances made standard procurement of a judge's authorization too time-consuming to undertake given the claimed emergency circumstances.

The RCMP utilized this “imminent harm” justification to digitally intercept communications of mobile phones at Coutts for 72 hours.

The defence teams objected to the introduction of digital communications captured via this surveillance warrant during pretrial proceedings, with Labrenz partially agreeing with them and disallowing the use of interceptions captured during the latter 48 hours of the RCMP's surveillance.

Labrenz's approval of the first 24 hours of the RCMP's surveillance operation allowed for introduction of all digital communications intercepted during that time to be introduced as evidence in the trial.

This set a precedent for Canadian criminal trials, given that no evidence obtained by law enforcement in previous self-authorized “imminent harm” search and surveillance warrants had ever been contested by defence lawyers in Canada.

trucker trial News Analysis Alberta Canada
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