Judge dismisses Canada Post motion for RCMP documents seized in Caspian fraud investigation

A Manitoba Court of Queen's Bench judge has dismissed Canada Post's request to force RCMP to hand over documents the Mounties seized during an ongoing fraud investigation.

The documents belong to Winnipeg contractor Caspian Projects Inc. and contain invoices and billing information for two multi-million dollar construction projects at the centre of a nearly four-year police probe.

"Broad access to, and potential disclosure of, evidence seized by police during a criminal investigation would not adequately protect privacy interests, and could compromise investigations or taint the evidence of witnesses," Court of Queen's Bench Judge Sadie Bond wrote in a 17-page May 28 decision.

"I find that the balancing of interests does not favour Canada Post." 

The documents were seized by the RCMP in a number of search warrants and production orders as part of a criminal investigation into allegations of fraud in the construction of the Canada Post mail-sorting facility near Richardson International Airport and the Winnipeg police headquarters downtown.

No charges have been laid as result of that investigation.

In December 2017, Canada Post went to court to argue for the right to view and analyze the documents.

During the hearings, Canada Post argued it should be allowed to view and analyze the documents because they contained sworn evidence that an "obvious fraud" had been committed.

Canada Post's lawyer, Bob Sokalski, said his clients planned to take Caspian to court to get the money back but had not yet filed a statement of claim, which is the first step in launching a civil case.

In dismissing Canada Post's motion, Justice Bond said a legal interest in the case has to be actual, and not perceived.

"Canada Post has not commenced any legal action against Caspian, or any other person in relation to this matter, and has provided no compelling reason for not doing so despite its assertion that the evidence discloses a plain and obvious fraud," she wrote.

Canada Post hired Caspian and AECON in a joint venture to build the new Winnipeg mail-processing plant in 2008.

It was completed in 2010, but the Crown corporation continued to pay Caspian for a further six years, a CBC News investigation learned last June.

'Demonstrate an obvious fraud': RCMP

The Crown corporation's motion to obtain the documents relied heavily on affidavits filed by the RCMP working on the investigation, in which the Mounties detailed their case to a judge to ask for the authorization of search warrants.

"The seized documents demonstrate an obvious fraud, and include invoices that are clearly identified as being the 'actual' invoices, or as being the 'inflated' invoices that were submitted for payment on the project,"  RCMP Const. Marc Paul Allard wrote in a 2015 affidavit.

Sokalski said the Crown corporation feared once the police investigation is over and the documents are returned to Caspian, the evidence would be lost forever.

"Caspian hasn't taken an oath to say they'll get the documents back from the Crown and don't worry, they'll be here waiting for you," Sokalski said during a December 2017 hearing.

"If that documentation gets back into the hands of the people who wrote 'true' and 'inflated,' there's no guarantee it will be there when released from the secure hands of the RCMP."

Caspian's lawyer argued if Canada Post got the documents,so should his clients. 

"Caspian should have the same access as Canada Post in fairness," said lawyer Jeff Baigrie during the December 2017 hearing. "We have to have access to the documents in fairness to defend ourselves."

He said Canada Post is on a "fishing expedition" and should not be given access to the documents, which still belong to Caspian, even though they are in the RCMP's possession.

Lawyers for the attorneys general of Manitoba and Canada argued on behalf of the RCMP and the Crown that any sharing of the documents would compromise the police probe.

They also expressed concerns that if the courts gave the documents to Canada Post applicant, that would open the door to similar motions in the future.

"I'm not inclined to give effect to a 'slippery slope' argument," wrote Bond. "However, the court should not hold the door open to applicants who may have an interest that is not sufficiently concrete or crystallized."