The RCMP continued a cross-country drug trafficking investigation that it knew relied on illegally-obtained information, a decision that sank two methamphetamine prosecutions and saw accused traffickers go free. 

A prosecutor withdrew drug charges against three defendants in the London, Ontario Superior Court of Justice last December. Court records show the accused faced 25 charges, including producing and possessing methamphetamine for the purpose of trafficking.

It was the second prosecution to collapse after defence lawyers revealed RCMP misconduct at the heart of a drug investigation that spanned from British Columbia to Ontario and relied heavily on records Health Canada gave police. 

Together, the cases suggest prosecutors may be unaware of police misconduct that supports major drug investigations, even when the malfeasance is in plain view.

Defence lawyer Reid Rusonik

The London defendants were first arrested in 2019. They remained before the court after Ontario Court Justice Amit Anil Ghosh acquitted a defendant in a prosecution linked to the same government documents, saying in a 2021 judgment that “the RCMP pursued private Health Canada records of palpably innocent parties engaged in otherwise lawful activity. An application for judicial authorization must be grounded in an offence. Again, this is basic.” 

“You would think that somebody who was entrusted with that task would have the training to do it constitutionally,” said defence lawyer Reid Rusonik, referring to the RCMP’s pursuit of Health Canada records. “The more frightening possibility is that… they did know better, and went ahead anyways.”

Rusonik represented defendants in both prosecutions, a coincidence that allowed him to use information obtained during the first case to expose problems with the second. 

Records reviewed by Ricochet show the RCMP used production orders to compel Health Canada to release records on ephedrine sales, based on the police service’s knowledge that the drug is used in methamphetamine production. That police obtained information held by the government without linking the records to a particular crime—and without meeting a Criminal Code standard for officers seeking production orders — Rusonik says, suggests “there’s no privacy at all.” 

The RCMP ignored many of Ricochet’s questions. Health Canada referred Ricochet to the RCMP.

Police followed ephedrine shipments

Nearly two and a half years before the prosecution withdrew charges against the London defendants, Ghosh found the RCMP had violated the Charter rights of Tien Lieu, an accused methamphetamine trafficker. 

Tien was acquitted after Ghosh excluded the evidence against him, criticizing the RCMP’s use of production orders to obtain Health Canada records.

Ephedrine has numerous legitimate uses, and is also used in illegal methamphetamine production. In 2017 and 2018, the RCMP obtained production orders — authorizations compelling a party to surrender records to police — to obtain Health Canada documents, including records on companies that may divert ephedrine.

“You would think that somebody who was entrusted with that task would have the training to do it constitutionally,” said defence lawyer Reid Rusonik. “The more frightening possibility is that… they did know better, and went ahead anyways.”

The RCMP has defined chemical diversion as “the transfer of precursors and essential chemicals from licit to illicit channels.” 

Police tracked several shipments sent by a nutrition company in British Columbia, totalling thousands of kilograms, that they believed contained ephedrine, to a transportation company in East Gwillimbury, Ontario. The nutrition company was sometimes also listed as the recipient. 

(Andrew Cohoe was named in shipping records as the recipient of some of the shipments from B.C. to Ontario. A man with that name was shot in 2020, according to the Vancouver Sun, and accused in civil forfeiture proceedings of diverting ephedrine to different properties in British Columbia, including one where the RCMP found an unsecured handgun, MDMA, dime bags, a vacuum sealer, and more than $170,000 in cash. A lawyer who represented Cohoe during the civil proceedings said he never admitted to any illegal activity.)

Police staked out the transportation company as an unknown male arrived to pick up one of the shipments, and followed a trail of evidence that ultimately led them to a storage locker north of Toronto, where they believed the recipients, including Lieu, were keeping tools, methamphetamine precursors, or methamphetamine. 

Applying for permission to search the locker in 2019, RCMP Corporal Mark Daniel Southern admitted he learned in November 2018 that the Public Prosecution Service of Canada considered the production orders “invalid.” 

The Criminal Code requires that a judicial official granting police a production order believe that a specific offence has occurred or will occur. In the case of the production orders that helped lead police to the locker, where they found over nine kilograms of methamphetamine, police had only a general belief that ephedrine is used to manufacture an illegal drug. 

Southern insisted that police continued their investigation “in good faith” and had built their case partly through investigative work done before learning the orders were invalid. 

Ghosh was not convinced. 

“The justice system must distance itself, in this case through evidentiary exclusion, from state conduct seeking to elicit private information without even a reasonable suspicion of criminality,” he said in an August 2021 judgment. 

While Southern admitted the RCMP’s errors, Constable Deandra Wiseman, who applied for a search warrant in the London investigation, appears to have been less candid. 

In a search warrant application reviewed by Ricochet, Wiseman said the Ontario shipping company had tipped the RCMP off about an incoming pallet of suspected ephedrine shipped by the BC nutrition company. Wiseman described the tip as “strictly unsolicited,” and did not mention that the RCMP’s relationship with the shipping company was a direct result of the service’s other investigation, which grew from the improperly-obtained production orders. 

Police watched as a lone male arrived in a Honda Odyssey to pick up the shipment in September, 2019. They then followed a trail of evidence to 923 Commissioners Road East in London, Ontario. The single-storey building seemed quiet, aside from the Honda Odyssey coming and going. 

Occasionally, the area smelled like acetone or Windex — police believed it was a clandestine drug lab. 

The RCMP searched the building in September 2019, attracting media attention after reportedly finding methamphetamine and precursors to the drug. Thanh Phan, Du Lam, and Thanh Tieu were arrested. 

Prosecution service declines to answer questions

In a notice of application last August, Rusonik and two other defence lawyers accused Wiseman of attempting to conceal the production orders that supported the investigation. 

The prosecution withdrew all charges four months later. 

Ghosh’s ruling in the Lieu case is publicly available, but the timing of the withdrawal suggests the defence application may have alerted the prosecution to serious weaknesses in their case. 

Prosecutor Vincenzo Mazza referred a Ricochet reporter to the PPSC’s media relations team, who declined to say when they learned of the issues with the production orders, citing legal privilege. 

Spokesperson Nathalie Houle said Crowns proceed only with prosecutions when there is a reasonable prospect of conviction and the prosecution is in the public interest. The Crown determined the London case failed that test, Houle said, but declined to say why.

‘You don’t have much of a Charter’

The PPSC would not say how many cases involved the production orders that prompted Ghosh to throw out the evidence against Lieu. 

“There are people who probably did plead guilty ‘cause they didn’t have a chance to find Justice Ghosh’s decision,” said defence lawyer and Criminal Lawyers’ Association president Boris Bytensky, adding such pleas are not “a blot on our system” — provided the defendant is actually guilty. 

“The public doesn’t care that… a meth dealer may have gone down where he had a defence. But what about the warrants that were executed where nothing was found? You just want to be careful about warrants. Or you don’t have much of a Charter anymore.”

Peter Zaduk, who represented Lieu’s uncle and co-accused, said he was unaware of the issues with the production orders when his client agreed to a deal with the prosecution that included a period of house arrest. (Zaduk said he was “not 100 per cent” certain of his client’s sentence, and court staff would not provide records.)

Rusonik worries that the RCMP’s production orders may have led them to obtain warrants across the country, possibly putting innocent people in the path of police. 

“The public doesn’t care that… a meth dealer may have gone down where he had a defence. But what about the warrants that were executed where nothing was found?” Rusonik said. 

“You just want to be careful about warrants,” Rusonik added, “Or you don’t have much of a Charter anymore.”