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Canada RCMP File:
ONTARIO
SUPERIOR COURT OF JUSTICE
(Toronto Region)
IN THE MATTER OF an application for a Production Order pursuant
to section487.012(1) of the Criminal Code
AND IN THE MATTER of an application for Search Warrants pursuant
to section 487 ofthe Criminal Code.
AND IN THE MATTER of an application for Assistance Orders
pursuant to section487.02 of the Criminal Code
AND IN THE MATTER of an application for an Order Denying Access
to Information(Sealing Order) pursuant to section 487.3(1) of the
Criminal Code.
INFORMATION TO OBTAIN
TABLE OF CONTENTS
lntroduction 3Offences Under Investigation: 5Overview 6
First Response Travel Group! Leximco Ltd 7
Offshore Investments 8
PIN Consulting Group Inc 9
Other Allegations 10
Judicial Authorization Sought 11Subject List 13Sources of
lnformatiow 15Grounds Of Belief: 16
OPPA Information Review 16
Witness Statements 16
Martin McNamara 17
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CurtisEia.20
Kimberly Tait 28
First Response Travel Group 34
Leximco Ltd 36
PIN Consulting Group Inc 37
New Providence Income Fund Ltd 39
Condos at 1 Cable Beach in Nassau, Bahamas 40
2014 OPPA Audit: 41
OPPA Association Financial Report Presented at the OPPA Annual
General Meeting 43
OPP Association Constitution and By-Laws 43
Summary of Grounds 43Solicitor-Client Privilege Considerations
44Things Sought Are Not Protected By Solicitor-Client Privilege
46
Search Warrant for 903 - 180 Bloor Street West, Toronto, Ontario
49
Things Being Sought from 903 - 180 Bloor Street West, Toronto
49
Summary of grounds for Belief the Things being Sought will be
Located at Suite 903 - 180Bloor Street West, Toronto, Ontario
51
Special conditions related to the Search Warrant for 903 - 180
Bloor Street West, Toronto:52
Seizure of Electronic Records at 903 - 180 Bloor Street West,
Toronto, Ontario 53
Things being sought from Ontario Provincial Police Association
Office located at 119 FerrisLane Barrie, Ontario: 58
Summary of grounds for belief the things sought will be located
at Ontario Provincial PoliceAssociation Office located at 119
Ferris Lane Barrie, Ontario 60
Grounds To Believe Things Sought From All Locations Will Afford
Evidence 86
Time Frame Requeste& 86Sealing Order 86
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ONTARIO
SUPERIOR COURT OF JUSTICE
(Toronto Region)
IN THE MATTER OF an application for a Production Order pursuant
to section487.012(1) of the Criminal Code
AND IN THE MATTER of an application for Search Warrants pursuant
to section 487 ofthe Criminal Code
AND IN THE MATTER of an application for Assistance Orders
pursuant to section487.02 of the Criminal Code
AND IN THE MATTER of an application for an Order Denying Access
to Information(Sealing Order) pursuant to section 487.3(1) of the
Criminal Code.
INFORMATION TO OBTAIN
I, Sergeant Gordon Aristotle, a peace officer and member of the
Royal CanadianMounted Police (RCMP) in the Province of Ontario,
MAKE OATH AND SAY ASFOLLOWS:
Introduction:
1. I have been a member of the RCMP since 1997 and currently
hold the rank ofSergeant. My first posting was in the Province of
British Columbia working inboth the General Duty and the General
Investigation Sections (GIS). Whileworking GIS, I was involved in
the investigation of major crimes such ashomicides, robberies,
sexual assaults, drugs offences, counterfeiting and frauds.
2. In 2001, I was transferred to Ontario. I have been assigned
to several unitswithin the RCMP which have, as part of their
mandate, the investigation offinancial crimes including the
following.a. National Security Investigation Section;b. Commercial
Crime Section;c. G8-G20 Summits Joint Intelligence Group;
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d. Integrated Market Enforcement Team;e. The GTA Financial Crime
Unit;f. Joint Securities Intelligence Unit; and
g. Integrated Proceeds of Crime Section.
3. In addition to the above noted units from 2002-2004 1 was
seconded to ProjectOIDA to work with RCMP and Toronto Police
Service (TPS) investigatorsassigned to the Professional Standards
Special Task Force. Project OIDAinvestigated allegations of fraud
and corruption which resulted in criminalcharges being laid against
police officers formerly assigned to the TPS CentralField Command
Drug Section.
4. I have completed complex financial investigations, at times
as the team leaderand/or affiant, including those involving:
a. fraud offences;b. money laundering and proceeds of crime
offences;c. breach of trust offences; andd. crimes of dishonesty
committed by a member of the Law Society.
5. I have prepared and supervised the preparation of numerous
judicialauthorizations including search warrants, production
orders, tax applications,restraint applications and management
orders. I have prepared and supervisedthe preparation of restraint
applications for bank accounts controlled by a lawyer.I have
prepared search warrants for documents and data stored in law
officesand also in the residence of a lawyer, and I prepared and
supervised thepreparation of production orders for information
pertaining to dozens of bankaccounts controlled by a lawyer. I have
also prepared an affidavit for thepurpose of a Lavallee Hearing,
which was used to make a determination ofwhether evidence seized by
the Referees was protected by solicitor client-privilege.
6. I have a solid understanding of economics, finance,
accounting, business,banking and capital markets. This is based on
my experience as a financialcrimes investigator, as well as my
education. I have completed the followingrelevant courses:a.
Honours Bachelor of Business Administration Degree (1990-1 994);b.
Commercial Crime Investigators Course (RCMP 2001);c. Counterfeit
Investigators Course (RCMP 2002);d. Proceeds of Crime Investigators
Course (RCMP 2004); ande. The Canadian Securities Course
(2006).
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7. In addition, I have attended numerous economic crimes related
conferences andseminars. I have prepared materials for and lectured
at many conferences andcourses such as the following:
a. Money Laundering Investigators Course provided to Panamanian
Police,Prosecutors and Intelligence. (2015);
b. The Osgoode Hall Money Laundering Symposium (2013);
c. Integrated Market Enforcement Team Investigators Course
(2008);
d. Joint Securities Intelligence Unit International Fraud
Conference (2008);
e. The Ontario Securities Commission, Securities Investigation
TrainingCourse (2007);
f. The Toronto Police Service Fraud Conference (2007); and
g. Annual Legal and Compliance Conference of the Investment
DealerAssociation Members (2006).
8. My current full time position in the RCMP Greater Toronto
Area Financial CrimeUnit (GTA FCU) is that of Team Leader. On
November 10, 2014, I wasdirected to assist the RCMP Special
Investigations Anti-Corruption Unit with thisinvestigation.
9. Throughout this Information to Obtain (ITO), where I state my
belief, the beliefis based on my experience and training. I have
personal knowledge of thematters and facts described in this ITO,
except where stated to be oninformation and belief. I believe the
contents of this ITO to be true to the best ofmy knowledge.
10. I understand that this is an ex parte application and that
lam obligated topresent a full, frank and fair disclosure of the
material available to me. Whilepreparing this ITO, I did not
include every single detail of this investigation. In aneffort to
prepare a document that is clear and concise, I have
includedinformation that I believe is relevant to this particular
investigation and which isnecessary to establish the grounds for
granting the requested orders.
Offences Under Investigation:11. Based on the grounds described
below, I have reasonable grounds to believe
that the following individuals:a. Martin Bain
Date of Birth: May 13, 1966Address: 7 Maple Court, Oro-Medonte,
Ontario
b. James ChristieAKA Jim ChristieDate of Birth: September29,
1967Address: 193 Maple Dawn Drive, Midland, Ontario
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c. Karl WalshDate of Birth: November 12, 1963Address: The
residence in the southeast part of the property designatedas 41
53/41 55/41 57 31X Line, Bradford, West Gwillimbury, Ontario;
have committed the following offences that are contrary to an
Act of Parliament:
a. Section 322 Theft Criminal Code.
b. Section 336 Criminal Breach of Trust Criminal Code;
c. Section 380 (1) Fraud Criminal Code; and
d. Section 462.31 Laundering the Proceeds of Crime.
12. And I have reasonable grounds to believe that the following
individuals:
a. Andrew Mckayr AKA Andy MckayL. Date of Birth: September 9,
1961
Address: 64 Montressor Drive, North York, Ontario;
b. KlaraKozakDate of Birth: March 28, 1968Address: Upper Level,
61 Wineva Avenue, Toronto, Ontario; and
c. Noel Francis Chantiam[1 AKA Francis Chantiam
Date of Birth: December 25, 1955Address: Unknown
have committed the following offences that is contrary to an Act
of Parliament:
a. Section 341 Fraudulent Concealment Criminal Code;
L b. Section 462.31 Laundering the Proceeds of Crime; andc.
Section 380 (1) Fraud Criminal Code.
Overview:1
13. In October 2014, the Ontario Provincial Police (OPP)
received complaints fromemployees of the Ontario Provincial Police
Association (OPPA) allegingfraudulent activity being conducted by
some of the senior members of the
El executive of the OPPA, namely, Chief Administrative Officer
(CAD) Karl Walsh
1 Paragraphs 13 to 29 constitute an overview, further details in
support of the overview are found in the body of theITO
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(Walsh), OPPA President James Christie (Christie), OPPA Vice
PresidentMartin Bain (Bain), a lawyer named Andrew Mckay (McKay),
and otherindividuals, namely, kiara kozak (Kozak) and Noel Francis
Chantiam -(Chantiam). Upon review of the initial information, the
OPP referred the case tothe ROMP which formed a team to investigate
the allegations.
14. I have reasonable grounds to believe that the subjects of
investigation, namely,Walsh, Christie, Bain, McKay, Kozak and
Chantiam, have acted together tocommit criminal offences of fraud
and theft against the OPPA. This belief isstrongly based on
information that has been received from four employees of theOPPA,
who are concerned by the actions of Walsh, Bain and Christie, who
areall sworn police officers. Sam and Walsh hold the rank of
constable, whileChristie is a detective sergeant. Mckay is a lawyer
in private practice with thefirm, Warren McKay Geurts &
Bellehumeur (McKay Law Office).
15. I believe that the subjects of investigation have organized
various schemes,some which include companies for which they hold
hidden beneficial ownership,that have been setup in order to obtain
exclusive rights for services required bythe OPPA. These services
pertain to but are not limited to the travel andinvestment needs of
the OPPA. In addition, some of the services offered bythese
companies are being promoted to the OPP membership throughout
theprovince.
16. Following is a summary of the schemes that I believe have
been used tofraudulently elicit funds from the OPPA, for the
benefit of the subjects ofinvestigation.
First Response Travel Group! Leximco Ltd.
17. A company called First Response Travel Group (First
Response) was formedon June 16, 2014 and Walsh has directed all
OPPA employees to use thiscompany exclusively for all OPPA travel
needs. First Response is also being
L utilized to secure contracts for the OPPAs Golf Tournament,
the OPPA AnnualGeneral Meeting (AGM) and the OPPA Spring Board
Meeting, which have anestimated contract value of $400,000.00. The
decision to change travel serviceproviders was made without any
cause or explanation OPPA employees havecomplained that First
Response is providing the OPPA with inferior service, atinflated
prices, compared to the previous travel service provider. First
Responseis also being endorsed by the OPPA, and actively marketed
for personal travel,to the more than 6,000 OPPA members through the
OPPA website, and throughan OPP members magazine called, Beyond the
Badge.
18. First Response was registered as a partnership between
Chantiam and Kozakwhich was listed as a division of Leximco Ltd.
(Leximco), a corporation whosedirectors are shown as kozak and
McKay. However, according to emails thathad allegedly been observed
on Walshs OPPA email account, Walsh, Christie,
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Bain, McKay, Chantiam and Kozak all owned shares in First
Response. Thetotal book value of the company was $198,000.00, which
is comprised of 198shares each having a value of $1,000.00. Bain,
Walsh and Christie own 50% ofthe shares of First Response Travel,
while McKay, Chantiam, and Kozak ownthe remaining 50%. It has been
alleged that the OPPA was being invoicedmonthly for consulting fees
by a company called PIN Consulting Group Inc.(PIN), and that the
funds paid by the OPPA were being used for the benefit ofWalsh,
Christie and Bain, to pay for 30 First Response shares worth
$30,000.00.In order to hide their ownership in First Response, the
shares belonging to Bain,Walsh and Christie were being held in
trust by Kozak through an offshoreinvestment scheme.
19. Walsh, Bain and Christie have not disclosed their beneficial
ownership of FirstResponse to the OPPA Board of Directors and the
OPPA membership. Inaddition Walsh, Bain and Christie had failed to
disclose their beneficialownership in First Response to the OPPA
Auditor and their beneficial gain fromthe funds being paid by the
OPPA to PIN. This has caused the auditor toprepare an audit report
for the OPPA that does not contain factual informationabout related
party transactions, which in turn has deceived the OPPA Board
ofDirectors, the OPPA membership and the OPPA Audit Committee.
Offshore Investments
20. At the beginning of 2014, Walsh, Christie and McKay took two
trips to theBahamas, after which Walsh, Bain and Christie began to
make higher riskinvestment decisions on behalf of the OPPA. This
has been a noticeabledeviation from the historically conservative
investment strategy of the OPPA astwo of the investments are
domiciled in offshore jurisdictions and were allegedlynot
preapproved by the OPPA Board of Directors.
21. One of these investments was only discovered when back up
paperwork for a$20,000.00 charge on Walshs OPPA issued credit card
was requested byOPPA office staff in preparation for the OPPAs
annual audit. Walsh explainedthat the $20,000.00 charge was for a
deposit that he made on two condos whichwere to be built at I Cable
Beach in Nassau, Bahamas. One of the condos wasvalued at
$1,563,000.00 and the other was valued at $625,000.00. Walshadvised
that the condo was being purchased as a high end vacation
rentalproperty investment for the OPPA. This transaction, which was
not discussedwith the OPPA Board of Directors prior to its
purchase, did not make sense tosome of the OPPA employees as the
OPPA is a not-for-profit organization. Thebackup paperwork for the
credit card transaction demonstrated that the depositfor the condo
was actually made in Walshs personal name, with an
associatedmailing address belonging to McKays office. This
paperwork for the condo had
F. since been changed to the OPPA and its address. Subsequently
Walsh hadadvised that he would be canceling the condo investments,
which had resultedin some of the credit card deposit being refunded
with a remaining $13,128.00
deposit yet to be refunded The fact that Walsh intended to
purchase a
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$1,563,000.00 condo in the Bahamas on behalf of the OPPA was not
disclosedto the delegates at the OPPA AGM in October 2014. The
$13,128.00 that wasnot refunded was accounted for as a prepaid
expense on the 2014 OPPAFinancial Statements, however, there were
no notations to describe thisexpense to the reader.
22. In August 2014 the OPPA invested in the New Providence
Income Fund Inc.(New Providence), a company which is domiciled in
the Cayman Islands. Thisinvestment is said to be a high risk, high
yielding offshore investment that is notregulated in Canada and
there is no guarantee that the principal invested will bereturned.
Walsh wired $100,015.00 of OPPA funds to the Cayman Islands topay
for shares in New Providence. Walsh had further advised of his
intention toendorse New Providence and encourage the OPPA
membership to also investin New Providence. Despite the potential
for high yield return, this high riskinvestment was counter to the
historically conservative investment strategy ofthe OPPA.
PIN Consulting Group Inc.
23. PIN was registered on June 6, 2014, which was 10 days prior
to the registrationof First Response. Mckay was the only director
listed on the PINs corporationprofile. The registered office for
PIN was listed at Suite 702170 Bloor StreetWest, Toronto, Ontario
with Natasha Vieira (Vieira) as the contact person.Vieira is Mckays
executive assistant and the listed address was also theaddress of
Mckays Law Office as well as his other businesses unrelated to
thepractice of law, namely Amax Security Solutions Inc., Amax
Intelligence Inc. andLeximco Ltd. Walsh and Christie signed a three
year contract with PIN on behalfof the OPPA which commenced on July
1, 2014. The total value of the contractis $5,000.00 per month plus
expenses, or $180,000.00 over the three year term.The contract
described services to be provided by PIN which includedresearching,
negotiating and concluding beneficial opportunities for
enhancingOPPA membership including but not limited to: real estate
investments;commercial investments; vacation property
opportunities; travel benefits throughvarious travel agencies by
securing exclusive rates for members and theirfamilies; and any
other opportunities that PIN was able to procure as adeliverable
service.
24. McKay signed the contract on behalf of PIN. Open source
checks wereconducted and PIN had no presence on the Internet to
describe the company, orthe services they provide clients. Mckay
was a former police officer, and iscurrently a criminal defense
lawyer. Witnesses do not possess any knowledgeor evidence to
demonstrate that Mckay has skills and experience in the
traveland/or the investment industry, which would be of any value
to the OPPA.
25. Walsh, Christie and Bain are allegedly benefiting
financially from PINs businessrelationship with the OPPA, however,
the extent of this benefit is not yet known.
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PIN is closely associated with much of the alleged fraudulent
activity underinvestigation such as the following:
a. Funds being paid by the OPPA to PIN for consulting fees
allegedly beingused to pay for shares of First Response which are
owned by Walsh, Bain,and Christie;
b. The registered office address for PIN was the same as Mckays
law officeas well as his other businesses unrelated to the practice
of law. Thebackup documentation and other information associated to
the condosbeing purchased in the Bahamas, which were originally
secured inWalshs personal name, were kept under the control of
Mckay and hisexecutive assistant, Vieira.
c. PIN through McKay was allegedly responsible for the
introduction ofKozak and First Response to the OPPA.
d. PIN was allegedly responsible for the OPPA investing in New
Providence.
e. Some of the OPPA employees believed that PIN is involved with
theevaluation, procurement and development of the proposed site for
the newOPPA office, which is to be located in Oro, Ontario. Walsh
is allegedlyfixated on moving the OPPA to a new location, and he
was alsoattempting to convince the OPPA Credit Union to move to the
samelocation and construct a new building. Mckays brother, Barry
Mckay,was said to be involved with this project. The Board
announced onFebruary 19, 2015 that the OPPA will be spending
$100,000.00 on a siteassessment for the property. This amount was
broken down into twoparts; $50,000.00 for the work and $50,000.00
for consulting fees with anexpected 10% overrun.2
f. In January 2015, Mckay, believed to be representing PIN,
presented anew investment to the OPPA Board of Directors through a
firm referred toas the Caldwell Group. This investment was approved
by the Board,however, the details of the value and structure of
this investment are notknown at this time.
Other Allegations:
26. Witnesses have also made other allegations pertaining to
further enrichment byBain, Walsh and Christie relating to
fraudulent claims for vacation leave payoutsand personal expenses.
These other allegations are being investigated but arenot the
primary focus of this investigation. These allegations predate the
moreserious complaints as described above. The totality of the
alleged behaviordemonstrates an ongoing breach of trust which is
being committed by Walsh,
2 The firm that will be receiving the consulting fees is unknown
at this time.
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[1 8am and Christie that has escalated in sophistication and
significance to thepoint where they are now believed to be using a
lawyer, a nominee, a consulting
F firm, a travel company, an offshore company and offshore
investments to profitand deceive the OPPA membership.
Payout of Vacation Leave:
27. The witnessed have advised that payouts have been made by
the OPPA tor compensate senior members for hours worked while they
were scheduled to be
on personal vacation time. The witnesses claim that in some
cases thesemembers were not working and they have falsely made this
claim. The payoutof leave was only available to a select few OPPA
employees including Walsh,Bain and Christie. The OPPA had
historically never made payment for unusedvacation time. These
payments were being made directly from the OPPA in alump sum, and
are not administered through the OPP, like all other salaries
paidto OPPA employees.3
28. Members of the OPPA including Walsh, Bain and Christie have
claimed anaggregate amount of $144,000.00 in excess of their
salaries for the fiscal yearending September 2014, and were paid
out $100,000.00 in excess of theirsalaries for the fiscal year
ending September 2013.
Payment for Personal Expenses:
Lr 29. Further allegations have been made that some expenses
being charged toOPPA credit cards were in fact for personal
expenses that were not related tolegitimate OPPA business. It is
also alleged that Walsh and Christie have notbeen submitting back
up receipts for their OPPA credit card purchases. Theircredit card
bills were paid automatically from the OPPAs bank account andthere
is no oversight.
Judicial Authorization Sought:
30. I am seeking the following Judicial Authorizations:FT
a. Search Warrants pursuant to Section 487 of the Criminal Code
for:
i. Suite 903-1 80 Bloor Street West, Toronto, Ontario
(AndrewMcKays Law Office);
In the OPPA Statement of Financial Position as at August31, 2014
there is a notation in reference to the Board ofDirectors and chief
Administrative Officer vacation payouts which states: During the
current fiscal year theAssociation changed its policy with respect
to their vacation accrual. Previously the Association had not
accrued forvacation time payable to members of the Board of
Directors or the chiefAdministrative Officer. Approximately$144,000
is payable at year end and is included in accounts payable and
accrued liabilities on the statement offinancial position. A
liability of approximately $100,000 existed at August 31, 2013
which was not included in the prioryear figures.
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ii. Ontario Provincial Police Association Office located at
119Ferris Lane Barrie, Ontario;
iii. 7 Maple Court, Oro-Medonte, Ontario (The offsite OPPA
office!Residence of Martin Bain);
iv. The black Ford Edge, with license plate BMKL586 registered
tothe Ontario Provincial Police Association and driven by
MartinBain;
v. 193 Maple Dawn Drive, Midland, Ontario (The offsite
OPPAoffice! Residence of Jim Christie);
vi. The black Ford Edge, with license plate 07YR15 registered
tothe Ontario Provincial Police Association and driven by
JamesChristie;
vii. The residence in the southeast part of the property
designatedas 41 53/41 55/41 57 3rd Line, Bradford, West
Gwillimbury,Ontario (The offsite OPPA office! Residence of Karl
Walsh);
viii. The black Ford Edge 07YR16 registered to the
OntarioProvincial Police Association and driven by Karl Walsh;
ix. Upper Level - 61 Wineva Avenue, Toronto, Ontario
(Theresidence of Klara Kozak);
x. The office of Leximco Travel located at 3273 Bloor Street
WestUnit 102, Toronto, Ontario;
xi. the grey 2007 BMW registered to Kiara Kozak and
bearinglicense plate BMEE6IO;
b. Assistance Orders appointing independent lawyers, approved by
theLaw Society of Upper Canada and the Crown, to act as the
Referees anda Chief Referee on behalf of the Court to ensure the
maximal protection ofsolicitor client-privilege during searches,
retention of exhibits, and prior tothe judicial determination of
solicitor-client privilege;
c. Assistance Orders for Independent Forensic Computer Examiners
tocopy, seize, triage and examine the electronic evidence under
theguidance of this Order and further direction from the Court;
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Grounds Of Belief:
OPPA Information Review:
33. On November 12, 2014, attended a meeting as a member of an
RCMPinvestigation team and was informed by SISgt Keith Latchford,
of allegations offraud and theft made by OPPA employees against,
OPPA President JamesChristie, Vice President Martin Bain and CAO
Karl Walsh, and the OPPssubsequent request of the ROMP to conduct
an investigation.
L34. On November 13, 2014, I reviewed a document dated November
3, 2014, which
was prepared by OPP Detective Inspector Chris Avery (D/lnsp.
Avery) forDetective Superintendent Dave Truax after D/lnsp. Avery
obtained voluntarysworn audio and video recorded statements from
OPPA Executive Officer MartyMcNamara (McNamara) and OPPA Manager of
Technology, Curtis Elia(Elia). The document is titled Ontario
Police Association Information Review.(Attached as Appendix A)
35. At the time of his statement McNamara provided D/Insp. Avery
with a copy ofthe performance agreement for PIN (Attached as
Appendix B), a copy of aconfidential letter from the auditor to
OPPA Finance Committee prepared byGregory N. Ferguson of Powell
Jones LLP (Ferguson), dated October 17, 2014(Attached as Appendix
C), and a copy of the 2014 OPP Association FinancialReport
(Relevant information has been summarized and is attached along
withthe report as Appendix D).
36. At the time of his statement Elia provided D/lnsp. Avery
with two DVDs and onethumb drive containing electronic material
obtained from the OPPA serverpertaining to emails for Walsh, Bain
and Christie. D/lnsp. Avery did not reviewthis information because
of privacy concerns.
37. D/lnsp. Avery provided the following conclusion on his
review, There is nospecific or conclusive ewdence of fraud or other
cnminal offence in theinterviews provided by the witnesses on
November 2, 2014. D/Insp. Averyfurther noted that materials (two
DVDs containing materials from the servers ofthe OPPA and a thumb
drive containing six relevant emails) turned over by Eliathat were
obtained in the course of his employment had not been reviewed
dueto privacy concerns. He also suggested the interview of other
OPPA employeesin order to further the investigation.
Witness Statements:
38. On November 14, 2014, D/Insp. Avery provided S/Sgt. Keith
Latchford with thesworn audio and video taped statements of
McNamara and Elia as well as theOPP Association Constitution and
By-Laws, dated May 2014, (relevantinformation of the Constitution
and By-Laws has been summarized and isattached along with the
report as Appendix E) and the 2014 OPP AssociationFinancial
Report.
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r39. RCMP investigators have obtained sworn audio and video
taped witness
statements from four OPPA employees including McNamara, Ella,
OPPA officemanager, Kimberly Tait (Tait) and the OPPA bookkeeper,
Sandra Barendregt(Barend regt).
40. In addition, to the sworn statements, investigators have
communicated with andreceived information from the witnesses either
over the telephone or throughemail.
r1 41. Although these witnesses have communicated with each
other before makingU the decision to bring their information to the
police, I do not believe that has
affected their credibility or the voluntariness of their
statements. None of the
r witnesses have a criminal record and none of the evidence they
have providedL has been proven to be untruthful or misleading. The
witnesses do not appear tohave anything to gain by providing the
evidence, and are concerned aboutnegative professional and personal
repercussions from reporting this offence,and cooperating with this
investigation.
Martin McNamara:
42. Martin McNamara, who is a police officer and an executive
officer of the OPPA,was the initial complainant to the OPP.
43. McNamara has provided two sworn witness statements, the
first on November 2,2014, to D/lnsp. Avery and the second on
February 12, 2015, to Cpl. StefaneNicolas (CpI. Nicolas) and S9t.
Kevin Jory (Sgt. Jory). I reviewed both of thesestatements and
learned the following:
44. The following is a summary of McNamaras evidence:
a. McNamara has been a sounding board for some OPPA employees
regardingconcerns they had with the actions of Walsh, Bain and
Christie, and their fearin reporting the issues to the authorities.
He had listened to their complaintsand tried to understand what was
occurring within the OPPA.
b. McNamara had signing authority for the OPPA and at the end of
August,2014 he was presented with a cheque to be signed that was
made payable toPIN Consulting for the amount of $5,000.00. He did
not understand thereason for this payment, and when he asked
questions, he was provided witha copy of the agreement between the
OPPA and PIN.6 McNamara hadpreviously not heard anything from the
Board members about PIN and theservices they were to provide, and
he did not understand why the OPPA werepaying for these
services.
c. A few days later, McNamara learned of two other transactions
that did notmake any sense to him; that the OPPA had purchased a
condo in the
6 This agreement was provided to D/lnsp. Avery and a copy was
provided to the RCMP on the December 1, 2014and is described later
in this ITO.
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Bahamas; and that the OPPA had wired funds from their bank
account to theCayman Islands for an investment.
d. There was an OPPA Board Meeting at the beginning of October
2014 afterthe OPPAs auditor, Ferguson7,conducted the annual audit
of the OPPA.McNamara attended this meeting and he was provided a
private andconfidential letter from the auditor to OPPA Finance
Committee.8 Included inthis letter were recommendations from the
auditor and managementsresponse. This report referenced a number of
issues, some of which includedthe following:
i. Unsupported expenses;
ii. Vagueness of the OPPAs investment policy for what
constitutesacceptable investments; and
iii. A list of significant and unusual transactions which
included a depositof $13,128.00 for a condo property located at 1
Cable Beach inNassau, Bahamas, worth $1,563,000.00, and the
purchase of 100Class A shares of New Providence which required a
cash outlay of$100,015.00 payable to a company in the Cayman
Islands.
e. McNamara was extremely upset by these transactions and the
perception ofmoney laundering. He asked direct questions in the
meeting as to why theOPPA was investing in the Bahamas and the
Cayman Islands. Walshresponded by explaining the following:
i. The OPPA was no longer buying the condo in Nassau, Bahamas
andtherefore, they would be getting their deposit back; and
ii. The $100,000.00 investment in New Providence was a conduit
to amortgage investment corporation in the Cayman Islands and a
meansfor OPPA membership to invest their own personal funds. The
initialinvestment was required so they could open a bridge for
OPPAmembers to invest in this corporation. Walsh advised that
theinvestment provided a 12% rate of return.
f. The Board then left the general meeting and went in camera to
discussthese issues in private. Upon the Boards return, McNamara
was advised thatthe letter from the auditor to the Audit Committee
would not be distributed tothe OPPA membership.
Ferguson is an accountant with Powell Jones, the accounting firm
used by the OPPA.8 This letter was provided to the D/lnsp. Avery
and a copy was provided to the RCMP on December 1,2014 and
isdescribed later in this ITO.
Page 18 of 88
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g. After the Board meeting was finished McNamara was still very
upset aboutthe offshore investments and other things that just did
not seem right. Hediscussed the issues with other OPPA employees,
including Elia.
h. While McNamara was driving to the OPPA AGM with Barendregt
and Elia,they discussed the issues at the OPPA. Elia then advised
him that while hewas working on Walshs computer he had located some
emails pertaining toFirst Response and PIN which contained the
following information:
I. Leximco Travel was purchased by First Response and Walsh,
Christieand Bain owned shares in First Response;
ii. Correspondence from McKay to Walsh explaining that these
shareswere not traceable because they were held offshore; and
iii. Kozak was holding shares in trust in the Cayman Islands on
behalf ofBain, Walsh and Christie.
i. McNamara found an accrued vacation bank file on the OPPA
server, andwhen he asked what it was for, the access to the file
was locked down. Helearned that in the year 2014, they, along with
McKay, went to the Bahamason what was first described as a personal
vacation, however, their workschedules were subsequently changed to
show that they were working for theOPPA during this trip. There was
also a second trip to the Bahamas, at theend of May or June, for
Bain9,Walsh, Christie and Mckay. Subsequentlylarge payouts of
approximately $30,000.00 were made to Walsh and Christiefor unused
vacation time.1
j. McNamara first heard that the OPPA Audit Committee Members
were veryupset when they learned of the findings of the auditor,
however, theirconcerns were somehow alleviated. He has learned that
the Audit CommitteeReport11 was authored by Walsh.12
k. It was during the 2014 annual OPPA golf tournament where
McNamara firstmet Kozak. During their conversation, Kozak told
McNamara that she wouldbe starting up First Response, organizing
next years golf tournament andgetting involved with the OPPA, all
of which was news to McNamara.
McNamara was the only witness who mentioned that Bain travelled
to Nassau, Bahamas with the others. It ispossible that McNamara
received this information second hand and Bain never actually went
to the Bahamas withChristie, Walsh and McKay.10 In the OPPA
Statement of Financial Position as at August 31, 2014 there was a
notation advising of a change inpolicy in relation to the Board of
Directors and cAos vacation policy whereby the year end payable for
vacation timewould be recorded on the financial statements.
9 The Audit Committee Report was provided to the OPP Interviewer
and has since been provided to the RCMP andwill be described later
in this ITO.12 Walsh was not a member of the Audit Committee but he
allegedly was responsible for selecting the AuditCommittee from a
list of delegates who volunteered for this role. The Audit
Committee members were Bruce Qwigg,
9 Dave Vitti, and Dave Sanbatini.
Page 19 of 88
.9
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I. McNamara approached the OPP with his concerns and not the
Boardbecause he felt this was a criminal matter pertaining to the
misappropriationof OPPA funds.
45. On February 20, 2015 McNamara sent Cpl. Nicolas an email
advising thefollowing:
a. That the OPPA Board announced on February 19, 2015 that the
OPPAwill be spending $100,000.00 on a site assessment fora property
which isto be the site of the new OPPA office. The $100,000.00
amount wasbroken down into two parts; $50,000.00 for the work and
$50,000.00 forconsulting fees with an expected 10% overrun.
McNamara did not statewho the consulting firm or what service the
consulting firm will beproviding;
b. That all lawyers on the OPPA callout list, that are
contracted as requiredto assist OPPA members, have now been ordered
to use First ResponseTravel Group;
c. That one of the Executive Officers has been fired, his OPPA
issuedequipment has been taken away, and his retirement party has
beencancelled; and
d. That McNamara has been told that they will be trying to fire
him soon aswell.
Curtis Elia:
46. Elia has provided two sworn witness statements, the first on
November 2, 2014,to D/lnsp. Avery and the second on January 13,
2015, to Cpl. Nicolas and Sgt.Jory. He also provided an additional
statement on March 1, 2015.
47. The following is a summary of Ellas evidence:
a. Elia is the OPPA Manager of IT and Infrastructure and has
been employedwith the OPPA since 2010. He worked as a consultant to
the OPPA for 8to 9 years prior to accepting a permanent
position.
b. Ella provided information pertaining to where relevant
electronicinformation could be obtained on the OPPA server.
c. Elia had seen an email on Walshs computer while he was
working in hisoffice in June 2014. At first the email he saw which
was about thepurchase of shares did not mean anything to him. He
then heard fromother OPPA employees about questionable OPPA
expenses and vacation
Page 20 of 88
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payouts. He also learned of the OPPAs suspicious offshore
investmentsand a contract with PIN for $5,000.00 per month. Ella
had concerns aboutthis activity which prompted him to review
certain emails and form thebelief that Walsh, Christie and Bain
were involved in criminal activity. Eliamade copies of Walsh, Bain
and Christies email mailboxes13to preserveevidence which was later
provided to D/lnsp. Avery14.
d. Ella had backed up Walsh, Bain and Christies email mailboxes
in themonths of October, November and December.
e. According to the emails Ella has read pertaining to Walsh,
Christie, Bain,McKay, Chantiam and Kozak, he had noted the
following:
i. Walsh, Christie, Bain, McKay, Chantiam and Kozak have
allpurchased shares of First Response. The total book value of
thecompany was $198,000.00, and was comprised of 198 shares
eachhaving a value of $1,000.00. The share structure was
comprisedas follows: Mckay, Chantiam, and Kozak own one half of
theshares of First Response. Bain, Walsh and Christie own
theremaining half of the shares, with Walsh owning 50% and Bain
andChristie each owning 25% of this portion. OPPA funds were
beingfunneled through a company called PIN in what was
beingdescribed as consulting fees to pay for 30 of these shares
havinga value of $30,000.00. Bain, Walsh ad Christie would
eachbenefit $10,000.00 from this arrangement. The shares belonging
toBain, Walsh and Christie were being held in trust by Kozak
throughan offshore investment scheme. They believe that these
shareswere not traceable if someone was looking into the company to
seewho owned it.
ii. Mckay introduced Kozak and Chantiam to Walsh, Bain
andChristie. kozak and Chantiam affended the OPPA in the summerof
2014 in a stretch limousine to meet with Walsh and Christie. Itwas
Chantiam who proposed the fraudulent scheme to Walsh, Bainand
Christie.
iii. Elia read aloud a portion of one email written by Walsh, I
raisedour issue with PIN. Francis talks fast and assumes we are as
smartas he is. In the end he does not appear to be tied to PIN. He
is
13 Ella retileved the emails on his own and he has advised
investigators that he backed up the OPPA mailboxes forBain, Walsh
and christie so that evidence would not be lost if the emails were
to be purged or deleted. Investigatorshave not advised Ella that
they will be conducting a search warrant and they have not
instructed Ella to review emailsor preserve evidence. Investigators
were unaware of Ellas actions until they were already done. On
December 4,2014 S/Sgt Roy Steinebach advised Eliato maintain
discretion to preserve the integrity of the investigation and
on
J. January 13,2015, cpl. Nicolas advised Elia not to take any
additional actions for the purpose of this investigation.14 Due to
privacy concerns the OPP had not reviewed this material, and RCMP
investigators have not requestedthese electronic storage media
devices from the OPP. These electronic storage media devices are
now being soughtby judicial authorization supported by this
ITO.
Page 21 of 88
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leaving that up to us and Andy. He mentioned we could
makepayments through Andy. That way we could coordinate the
OPPAconsulting fee. Ella advised that there were lots
ofcorrespondence on the emails between Mckay and Walshpertaining to
PIN.
iv. One email viewed by Ella gave the bank account information
wherethey were to transfer the funds for the shares of First
Response.Ella believed that it was a Bank of Montreal (BMO) bank
account.
v. Ella advised that in one of the email from either Walsh or
Christie toKozak, she was asked to cease using the OPPA emails
forcommunication and to use their personal email accounts,
believedto be the following accounts;
karlwalsh(yahoo.com;ichirstie(2qmail.com; and
[email protected].
g. EIia was concerned because OPPA employees were being forced
to useFirst Response for their travel needs, and Ella believed the
OPPA wasbeing overbilled for this service. He was also concerned
because FirstResponse was now being endorsed and promoted to the
entire OPPAmembership.
h. Ella believed that the OPPA Board of Directors approved the
monthlyexpenditure for PIN, but they were not aware of the
involvement of McKay,Walsh, Christie and Bain at that time.
I. Ella advised that Mckay later made a presentation to the OPPA
Board topitch them on an investment with the Caldwell Group.15 Ella
had seen anemail between Mckay and Walsh saying that everything was
good,Caldwell would take .5%, PIN would take .5% and the OPPA will
not betaking any money out of the investment. Ella could not
provide any furtherdetails on this investment.
j. Ella advised of the discussion he had with McNamara and
Barendregtwhile they were driving to the OPPA Annual General
Meeting at the end ofOctober. They discussed the financial issues
within the OPPA and howthey should stand up, but none felt they
were in the position to do so. Itwas at this time that he told
McNamara and Barendregt about the emails.They were shocked to learn
of this information, and McNamara asked Eliato hold off as the OPP
should be made aware of the situation. McNamarasaid he would
contact someone at the OPP, and the next day confirmationwas
received that it would be investigated.
15 There is an investment firm named caidwell Securities that is
located at 150 King Street West, Toronto, ON. Nofurther information
was provided and I am unsure if this company is the one that has
been described.
Page 22 of 88
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k. Walsh and Christie went to the Bahamas on two occasions; from
March 27to 30, 2014 and from July l6to 21, 2014. Ella knew this
because he wasrequested to purchase a cellphone plan for Walsh and
Christies phonesfor their trip to the Bahamas. Since he was unable
to obtain a compatiblecellphone plan, he asked Walsh and Christie
to refrain from using their
r OPPA cellphones while they were in the Bahamas. However, Elia
was toldthat due to the business nature of the trip, they were
required to use theircellphones and as a result Walshs bill was
between $2,000 and $3,000.
I. In the summer, Ella attended McKays law office to do IT work
and duringthe course of these duties he saw the following:
i. The scheduling of McKays meetings between Mckay, Chantiamand
Kozak.
ii. Emails that showed McKay had introduced Chantiam and Kozak
toChristie, Bain and Walsh.
48. On February 26, 2015 CpI. Nicolas received an unsolicited
email from Eliaadvising that McKay had contacted him to do some IT
work at his new officelocated at Suite 903 -180 Bloor Street West,
Toronto, Ontario. Elia advised thathe would be meeting with McKay
at this office on March 1, 2015 CpI. Nicolasemailed Elia back and
thanked him for the information.
49. As a result of Elias information investigators conducted
surveillance in the areaof 180 Bloor Street West, Toronto, Ontario
on March 1, 2015. Elia was notinformed that investigators would be
conducting this surveillance, and he wasnot provided any
instruction from CpJ. Nicolas or any other member of
theinvestigation team. The following are the relevant observations
for thesurveillance:
a. At 11:07 Andrew Mckay was observed carrying a vacuum and
anextension cord into the rear of 180 Bloor Street West, Toronto,
Ontario.
b. At 11:54 Sgt. Jory attended outside of Suite 903 -180 Bloor
Street West,Toronto, Ontario and noted two large front opening
filing cabinets and oneblack office chair in the hallway to the
left of the entrance to Suite 903.Sgt. Jory opened the unlocked
door to Suite 903. Sgt. Jory observed anoffice space but he did not
observe anyone inside the office and he did notenter the suite.
Sgt. Jory noted a desk located to the left of the entranceand a
number of large boxes on the floor.
c. At 11:57 Elia was observed standing outside to the west of
180 BloorStreet West on the sidewalk. Elia was then observed
entering the lobby of180 Bloor Street West where he met with Andrew
Mckay and an unknownmale. All three males were seen entering the
elevator.
Page 23 of 88
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d. At 18:20 McKay and Ella were observed leaving 180 Bloor
Street Westand entering a black Sport Utility vehicle that was
parked in a lot at therear of the building. Mckay was observed
driving away in the vehicle withElla in the front passenger
seat.
50. On the evening of March 1, 2015, Cpl. Nicolas called Ella
and requested that heprovided a statement. At 20:38 Cpl. Nicolas
and Sgt. Jory obtained a statementfrom Ella. During this statement
Ella advised the following:
a. He confirmed that he was at 180 Bloor Street West earlier
that day toassist Mckay in establishing the IT requirement for the
new office. Headvised that the whole Warren Mckay legal firm was
moving to this newlocation. There were seven to eight lawyers
moving into the new location.
b. He advised that Mckay had completely moved out of his
previous office at170 Bloor Street West and he will be commencing
operations at the newoffice this week. All of Mckays legal files
are now in the new office. OnTuesday (March 3, 2015) they will be
getting the Internet and will beworking with what they have for the
time being. He described the newoffice as having boxes throughout
containing equipment and files.
c. Ella advised that Mckay has a desk top computer which is
networked withthe bookkeeper, Natasha Vieiras desk top computer.
Vieira does thebilling for Mckay.
d. He advised that there are four physical offices, a boardroom
and abackroom. Ella provided a diagram of the office and advised
that Mckaywas sharing an office with a lawyer named, Craig
Branagan.
e. Elia advised that he was asked to go back to Mckays office
next Sunday(March 8, 2015).
f. Ella advised that he had the backups previously described,
includingWalsh, Bain and Christies emails accounts on his hard
drive at hisresidence.
Sandra Barendregt:
51. On December 8, 2014, Barendregt attended the RCMP Newmarket
Detachmentand provided a sworn audio and video recorded witness
statement. I monitoredthe statement which was obtained by Sgt. Jory
and CpI. Nicolas and learned thefollowing:
a. Barendregt has been employed by the OPPA for twenty years.
She doesthe accounting for the OPPA, and her duties include
payroll, accounts
Page 24 of 88
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payable, accounts receivable and preparing the financial
statements.Barendregt provided information about the OPPA, the
structure,employees, the OPPA office and OPPA home offices.
b. Barendregt was aware that Ella located and turned over emails
to thepolice. Elia showed her an email which described how Walsh
invested$46,000.00, while Christie and Bain each invested
$23,000.00 into acompany. She was not sure if the company they
invested into was PIN orFirst Response. In one of the emails Mckay
said not to worry, no one willever know because Kiara was the
trustee of the shares.
c. Kozak ran First Response and all OPPA travel must be
purchased throughher. At the OPPA AGM, First Response was presented
to the delegation.Members were told that if they book through First
Response they wouldget a discount.
d. Barendregt received an email from Walsh telling her to pay a
PIN invoicefor $5,000.00 plus HST. The invoice did not breakdown
the services thatwere provided by PIN. The PIN office had the same
mailing address asMckays Law Office. Mckay had provided legal
services for OPPAmembers for about 10 years and he was friends with
Walsh, Christie andBain.
e. Barry McKay is Mckays brother and Barendregt thinks he was a
realtor.She frequently hears his name in the office and he was
somehow involvedwith the property that the OPPA may purchase for
their new office. Walshwas fixated on acquiring this property which
was located on the 7th line inOro between the Shell Station and the
airport. A company called DialogueInc. has done a survey of the
property. Right now they are in the planningstage and there may be
some problems with the soil. Barendregt does notthink there was a
need for the OPPA to move as there was nothing wrongwith the OPPAs
current office in Barrie, and there was plenty of space.Walsh says
that he wanted to move the OPPA out of Barrie because theOPP did
not police the City of Barrie.
f. McKay had rich friends in Toronto including a man named,
FrancisChantiam. Chantiam had a box at the Rogers Center where he
hadhosted members of the OPPA. Chantiam had been to the OPPA
officeand he arrived in a limo with Kozak. Barendregt had been
seeing hisname quite frequently at the OPPA.
g. Barendregt provided the following information about the OPPA
purchaseof a condo in Nassau, Bahamas:
i. On Walshs April 2014 OPPA Visa statement, she observed
a$20,000.00 US charge which occurred in the Bahamas. She askedWalsh
about this transaction and requested backup documentation.
Page 25 of 88
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It took a number of months to produce and was forwarded for
theOPPA audit. Walsh explained that the $20,000.00 US charge wasa
deposit for two condos that that the OPPA had purchased inNassau,
Bahamas; one for $1.59 million and the other for$625,000.00.
ii. Barendregt had not heard anything about the OPPA
purchasingcondos in the Bahamas until she saw the charge on the
credit cardstatement. When she received back up documentation, she
notedthat the paperwork was in Walshs name instead of the
OPPA.Walsh explained that he also purchased a condo and thought
theysent the wrong paperwork. Barendregt received another
documentand noted that the condo was associated to Mckay.
Barendregtunderstood that the OPPA was to receive their money back.
Therewas one Visa refund received for one of the condos, but as
ofDecember 5, 2014 no refund was received for the second condo.
h. Barendregt provided information about the New Providence
investment inthe Cayman Islands:
I. Barendregt received a phone call from Walsh and was told to
go tothe Credit Union and wire $100,000.00 US funds to
CaymanIslands for an investment. Walsh explained that this was a
timesensitive transaction that needed to be completed before
August31, 2014. Barendregt was told that the Board would be advised
at alater date and that the decision.to wire these funds was made
byWalsh, Christie and Bain. The Credit Union required a
personalname to be associated to this wire. Barendregt refused to
put hername on this transaction and ultimately Walsh used his
passport forthe identification that was required in order to wire
the funds to theCayman Islands.
ii. The contract for the investment stated there was no
guarantee theinvestor would get their money back. Barendregt was
aware of aplan to offer this investment to OPPA members, and form
one biginvestment pool. Barendregt was concerned about this and did
notunderstand why they would want members to invest in a high
riskCayman Island fund, where they could lose all of their
investment.
iii. To facilitate a wire transfer from the Cayman Islands, the
OPPAwas required to open a new US funds bank account at the
OPPACredit Union. She believed that these funds, around $500.00,
werereceived as a dividend payment on the investment, but she had
notseen any backup documentation to describe this transaction
Page26of88
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i. The OPPA had approximately $15 million in investments which
includedlegal investments, insurance investments and operations
investments.Only the operations investments were not restricted and
these were thefunds that have been invested. The OPPA cannot make
profits or they willrisk losing their not for profit status with
the CRA.
j. Barendregt provided information in relation to the 2014 OPPA
AuditProcess:
i. The auditor, Ferguson of Powell Jones, discovered many
issueswhich he explained in a meeting attended by the OPPA
AuditCommittee members, Barendregt and Tait. The Audit
Committeeconsisted of three delegates who were picked by Walsh.
Christieand Bain came into the meeting and made light of the issues
thatwere raised by the auditor. They fluffed it off and the
AuditCommittee was content with their explanation. Ferguson was
topresent to the Board of Directors but Walsh called it off.
Fergusonwas also scheduled to present at the OPPA Annual
GeneralMeeting. He advised Walsh that it was his intention to bring
up hisfindings at the AGM. Barendregt later learned that the
OPPAintended to fire Ferguson, and she told him this. Ferguson
wasunsure if he would have a job and in the end he did not present
theissues to the delegates at the AGM.
ii. The condo purchase was not mentioned in the OPPA
AnnualStatements becauseWalsh had said he would be cancelling
thedeal and the OPPA would be getting a refund. Although theCayman
Island investment is mentioned in the OPPA AnnualStatements none of
the delegates at the OPPA opened thisdocument and asked about this
transaction. Barendregt was veryupset that no one said anything at
the AGM, and that nothing was
r done to rectify the situation.iv. Barendregt was handing out
expense claims at the end of the AGM
when Walsh saw her and said, We could have spent a
milliondollars and these idiots wouldnt have said a thing. Bain
then saidto Barendregt, Youre not going to bite are you?
L- v. Barendregt was advised that Kim Tait and Leanna Maltby
(Maltby)had a similar experience where they were told we just got
awaywith murder
k. Barendregt explained that Walsh could approve expenses
between$10,000.00 and $50,000.00 and that the board should approve
anypurchase over $100,000.00.
Page 27 of 88
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I. Barendregt advised that the OPPA Visa statement balances are
paid for infull directly by the OPPA Credit Union This practice is
in place to preventcharges for late fees, and it has made it easy
for employees to use theirOPPA issued credit card withoutproviding
backup receipts. This problemhas been brought up repeatedly at
board meetings. There is no oversight
p and Walsh and Christie are the worst at not providing backup
receipts, soit is impossible for her to determine if their expenses
are for OPPAbusiness or personal in nature. Bain is not as bad as
Christie and Walshand he does submit support for expenses
incurred.
m. Christie, Walsh and Bain have all been part of the
Association for about 15years. Walsh was the President for 6 years
and then ran for public office.When he returned to the OPPA he
became the CAO.
n. There is a separate set of books for Bain, Christie and
Walshs lieu timewhich Maltby keeps track of, and this allows them
to get their vacationpaid out in cash by the OPPA. This practice of
paying out leave beganwhen Walsh decided to have his vacation paid
out in August 2013 andthen again in January 2014. Walsh was in Los
Cabos and because heanswered his phone and checked his emails, no
leave time was deductedfor this vacation. There is no oversight for
this practice. 16
Kimberly Tait:
52. Tait has provided two sworn witness statements to Sgt. Jory
and Cpl. Nicolas. Imonitored both of these statements, the first
which occurred on December 8,2014, and the second which occurred on
January 5, 2015, and learned thefollowing:
a. Tait has been employed by the OPPA for 5 years. She
overseesoperations, the budget, finances, human resources, and
generally makessure the OPPA is running smoothly. She is a former
teacher, has aBachelor of Economics, and a College Accounting
Diploma. Her husbandis a sergeant with the OPP.
b. Tait provided information about the OPPA, the structure,
employees, theOPPA office and OPPA home offices.
c. Tait and the staff which she supervises have many issues with
recentfinancial dealings and decisions being made. She has
repeatedly brought
E her concerns to Walsh. He is her direct supervisor, and she
has nowhereelse to take these complaints.
16 in the OPPA Statement of Financial Position as at August 31,
2014 there is a notation advising of a change inpolicy in relation
to the payout of leave for Board of Directors and chief
Administrative Officer vacation.
Page 28 of 88
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d. Tait described the Bahamas condo transaction as follows:
Walsh, Christie and McKay went to the Bahamas twice. She had
seensome purchases on the Visa that were made in the Bahamas
includingone large charge to put a hold on two condos in the
Bahamas. Onecondo was worth $1.3 million and the other was worth
$700,000.00.They met with a developer and they were to buy these
condos andhave a manager rent them out. The OPPA had never owned
realestate investment property.
There was no back up produced for this transaction, only a
charge onthe Visa. The OPPA audit sparked a need for the
backupdocumentation and Walsh advised her that McKay had the
condoinformation, and she should contact him for the information
sherequired. She contacted Mckay and he sent the documentation
whenhe knew why it was required. The backup paperwork for the
condothat was received from McKay was in Walshs personal name,
withMckays office address. The name on the paperwork has since
beenchanged and now it has the OPPAs name and address.
iii. This transaction was not mentioned in the 2014 OPPA
FinancialStatements, and was not described as an asset purchase.
Instead theamount of the deposit had been accounted for as a
prepaid expense,because it was described as a right to purchase,
and because Walshadvised that the OPPA could get their deposit
returned.
iv. Tait had told Walsh that she does not understand the logic
behind thisinvestment, and she explained to him that a deal like
this needs tohave backup.
e. Tait described OPPA historical information about OPPA
investments and theinvestment in the Cayman Islands:
r i. The OPPA uses, Terry Cheaney from RBC Dominion Securities
toinvest their funds. They are very happy with Cheaney, and
theinvestments he had selected for the OPPA have done very
well.
ii. On August 28, 2014, Tait was not working but she was asked
to wiretransfer $100,000.00 in OPPA funds offshore for an
investment. Therewas a sense of urgency to get the transfer done.
Barendregt hadrefused to do this transfer, and ultimately it was
Walsh who transferredthe funds.
iii. The wire transfer was for an investment in the New
Providence, a fundthat is run by a company domiciled in the
Bahamas. Tait has seen a
Page 29 of 88
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72 page document describing the investment fund, and fourteen
pagesof this document describe the risks of investing into the
fund. For thefive years she had worked at the OPPA all investment
selections havebeen low risk. She did not understand or agree with
the suddenchange in investment selection.
iv. Tait spoke to Cheaney and Ferguson about the investment.
Cheaneyadvised that Mike Harris was on the Board of Directors to
addcredibility, but the investment appeared too good to be true. He
saidhe would not invest in this company. Ferguson also had concerns
andadvised Tait to put her concerns in writing to protect herself.
She sentan email to Walsh outlining her concerns as per Fergusons
advice. Atone point she thought Walsh might retract the investment,
but he didnot.
v. It has been explained to Tait that the investment was made so
thatother OPPA members could also invest. A $100,000.00
minimuminvestment was required so that all OPPA members could pool
theirfunds and invest. Tait was told that the BMO would be taking
over thisinvestment. The OPPA recently received a dividend payment
from thisinvestment and had to open a US funds account at the OPPA
CreditUnion to facilitate the deposit of this money.
f. Tait provided some information pertaining to Mckay and
PIN:
i. Walsh and Christie have known Mckay for years. McKay was a
formerpolice officer and now is one of the external counsels who
are calledby OPPA members who need assistance with criminal
matters. Therewas a list of twenty lawyers that can be called for
defense work, butMcKay and his firm are the primary contacts for
this type of work.
ii. PIN was costing the OPPA $5,000.00 to 6,000.00 per month and
thecompanys address was also McKays Law Office address. It wasWalsh
and Christie who signed the OPPA Agreement with PIN.17
iii. Tait was usually privy to everything that was going on
within the OPPAbut with PIN she was kept in the dark. Tait had
searched the Internetand could not find any information on PIN and
she was not sure what itdoes. Tait was not aware of any knowledge
that Mckay has withinvestments.
17 reviewed a copy of the OPP Association constitution and
By-Laws, dated May 2014, and noted the following inthe contracts
Section, Contracts and engagements on behalf of the Corporation
shall be signed by the President orthe vice-President and the
ChiefAdministrative officer, or their delegates, and the
ChiefAdministrative Officer shallaffix the seal of the corporation
to such instruments requiring same.
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62. Kozak and Mckay commenced as officers of Leximco on October
10, 2014.McNamara advised in his statement that Leximco was
purchased by FirstResponse but the source of his information had
not been confirmed. It is notpossible from reviewing the
corporation profile to determine the beneficialownership and any
consideration that may have been paid to the transferownership. It
was possible that the ownership of Leximco changed and thatsome or
all of $198,000.00 that is believed to have been invested by
Walsh,
p Bain, Christie, Mckay, Chantiam and Kozak in First Response,
was used topurchase Leximco.
PIN Consulting Group Inc.
63. on December 1, 2014 I reviewed a five page Consulting
Services Agreementbetween PIN and the OPPA, attached as Appendix B.
This Agreement wassigned on August 20, 2014 by Mckay, on behalf of
PIN and witnessed by Vieira.There was no signature on the Agreement
by a representative of the OPPA.26The document contains the
following information:
a. PIN will assist with research, negotiation and conclude
beneficialopportunities for the purpose of enhancing Association
membership, morespecifically but not limited to: real estate
investments; commercialinvestments, vacation properties
opportunities, travel benefits through
LI various travel agencies by securing exclusive rates for
members and theirfamilies; and any other such opportunities that
the Corporation was able toprocure as a deliverable service under
this Agreement, and directed by[. the client.
b. PIN would provide reports on an ongoing basis and not less
than onceevery six months to the OPPA as to the performance of the
services underthe agreement.
c. The Agreement shall be in effect commencing July 1, 2014 and
terminateon July 1, 2017. The Agreement may be renewed and the
either partymay terminate the contract with 90 days written notice
without cause.The OPPA may terminate the agreement for cause
without giving notice.
d. The OPPA shall pay $5,000.00 per month plus sales tax for
services. Inaddition the OPPA shall pay travel expenses for mileage
at a rate of $.601km, accommodations, meals, airfare and incidental
costs.
64. I have reviewed the corporation profile for PIN and noted
the following:
a. It was registered on June 6, 2014;
26 Tait had stated that there was an agreement between PIN and
the OPPA that was signed by Walsh and Christie. Ido not know if
there was anything different in the version that she has referred
to.
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b. Mckay was the sole director;
c. The registered office was listed at 702170 Bloor Street West,
TorontoOntario (Mckays Law Office) and Mckays executive assistant,
Vieira,was listed as a contact person. This address was also the
office ofMckays other businesses including: Amax Security Solutions
Inc. andAmax Intelligence Inc.
65. As stated above in his statement to investigators, Elia had
seen emailsdemonstrating that Walsh, 8am and Christie were
financially benefitting from theOPPA consulting fees that were
being paid to PIN. Specifically that feescharged to the OPPA by PIN
were being used to pay for $30,000.00 worth ofshares of First
Response for the benefit of Walsh, Christie, and Bain.
66. The total value of this consulting fee contract over the
three year team was$180,000.00, plus HST and travel.
67. Thus far PIN has allegedly been involved with the following
activities:
a. The purchase of the condos in the Bahamas worth over $2
million.Though PIN was not directly mentioned, the backup
documentation for thecondos purchase was being held by Mckay and
Vieira.
b. The introduction of Kozak and First Response to the OPPA
which wasbeing used for the purchase of OPPA employee and OPPA
membershiptravel, and for the negotiation of contracts worth an
estimated $400,000.00in relation to the OPPAs AGM, Spring Board
meeting and its GolfTournament.
c. The New Providence investment which has commenced with
a$100,015.00 OPPA investment, and was to be promoted to the
OPPAmembers for their personal investment.
d. The procurement and development of the land for the new OPPA
office inOro, Ontario. The Board announced on February 19, 2015
that the OPPAwill be spending $100,000.00 on a site assessment for
the property. Thisamount was broken down into two parts; $50,000.00
for the work and$50,000.00 for consulting fees with an expected 10%
overrun.27
e. An investment with the Caldwell Group whereby Caldwell will
earn .5%and PIN will earn .5%. This investment was approved by the
Board andfurther details were not known at this time.
27 The firm that will be receiving the consulting fees is
unknown at this time.
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68. The recommendations made by PIN have been the focus of the
complaints andconcerns voiced by the OPPA employees. It is unclear
who actually works forPIN and if there was any benefit that this
company will bring to the OPPA. Theoffice manager, Tait who usually
knows everything about the business activitiesof the OPPA is being
kept in the dark in relation to PIN for reasons that shecant
explain. The financial risk associated to the alleged
recommendations thathave been made by PIN is very significant for
the OPPA and its membership. Ifthe controlling minds of PIN do not
have the best interest of the OPPA in mind,the negative financial
consequences could place the OPPA in jeopardy.
New Providence Income Fund Ltd.
69. Concerns have been raised by employees of the OPPA and the
auditor inrelation to the OPPAs offshore investment of $100,015.00
in 100 Class Ashares of New Providence on August 28, 2014.
Witnesses have stated that itwas Walshs intention to promote this
investment to the membership of theOPPA. Walsh had advised that the
funds invested by the OPPA were requiredso that the OPPA members
could also invest in this security.
70. The investment was described in the 2014 OPPA Financial
Report, Notes to theFinancial Statements, as follows: On August 28,
2014 the Association investedin 100 class A shares of New
Providence Income Fund Ltd. (the Fund9. TheFund is a company
incorporated under the Companies Law of the CaymanIslands as an
exempted company limited by shares. The Fund is registered as
amutual fund: The Fund:s investment objective is to deliver
consistent returnswith enhanced protection of investment principal.
It aims to achieve overallreturns of between 10 and 15% per annum
net of fees and operating expenses.It intends to generate the
returns to accomplish this objective through investingin a wide
range of loans and securities and financial instruments. Subject to
theavailability of distributable amounts and the discretion of the
directors the Fundintends to declare and pay dividends on the
shares on a quarterly basis in anamount representing a yield of 7%
on the subscription amount.
71. On November 19,20141 conducted internet checks and was
unable to find aprospectus for this company. It does not appear
that it has filed any materialswith any Securities Regulators in
Canada, and there was no evidence that thesesecurities were
approved to sell in Canada. In addition, I could find noinformation
published for this company since January 25, 2013, or
anyinformation published pertaining to any regulation or oversight
over thiscompany.
72. I also have reviewed other documents found on the Internet
that containedunverified comments on New Providence including:
a. An article published by Nassau Guardian Business Reporter,
Jamal Smith,titled Loan activity picking up at SFG Inc. which
mentions the launch ofSterling Financial Groups third mortgage fund
called New Providence
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Income Fund. A company representative states that the fund has
alreadyseen a 5.22 percent return.;
b. A news release, dated January 25, 2013, published by SFG
Inc., themanager and promoter of New Providence, reporting that the
Fund hadreturned 1.01% netto its investorsforthe month ended
December3lst,2012 representing a 19.27% return for the year. Fund
investors werebeing paid out an interim dividend of approximately
12.27% per annum
r compounded return which was supplemental to the 7% per
annumpreferred return paid out as quarterly dividend;
c. Information from Business Week that only stated that that
NewProvidence did not have any Key Executives recorded and the
wordsCayman Islands in the company overview;
d. A new release on Localbahamas.com prepared by SFG Inc.
announcingthat New Providence Income Fund Announces a New Director
on January25, 2013, Mr. Mike Harris, the former premier of Ontario;
and
e. Information located on the BMO website for information
purposes only.BMO advised that as required the company must file a
prospectus with asecurities commission before their securities can
be sold in Canada. Asmentioned above, I was unable to locate any
information to suggest thatthis company had filed a prospectus with
any regulator in Canada.
73. I reviewed a copy of the OPP Association Constitution and
By-Laws, dated May2014 and noted the following in relation to
investments. Monies accumulatedby the Corporation may be invested
from time to time with the subsequentapproval of a General Meeting,
and shall adhere to investment policies,standards and procedures
that a reasonable and prudent person would apply inrespect of a
portfolio to avoid undue risk and obtain a reasonable return.
(Page24 and 25). I believe that this investment is a significant
deviation from the riskadverse strategy demonstrated in the OPPAs
historic investment choices.
74. Tait advised that the OPPA was in possession of a 72 page
documentcontaining 14 pages of risk related warnings in relation to
this investment. Ihave not viewed this report, but based on my
knowledge and experience, andthe limited information I have
gathered, I believe that this offshore investmentplaces OPPA funds
at undue risk. Given all of the investment choices availableto
management, I am unable to think of any legitimate reason why OPPA
fundswould be invested in this company, and why they would want to
market this fundto the OPPA members they represent.
Condos at I Cable Beach in Nassau, Bahamas
75. Concerns have been raised by employees of the OPPA and the
auditor inrelation to a deposit of $20,000.00 that was placed on
Walshs OPPA issued
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[i
UVisa to secure the purchase of two condos in Nassau, Bahamas.
The depositfor one of the condos has since been returned and
according to the Draft Letterfrom the Auditor, dated October 17,
2014, the OPPAs investment is for$13,128.00 on a condo worth
$1,563,000.00 USD located at 1 Cable Beach inNassau, Bahamas.
76. None of this information was disclosed to the OPPA
membership at the AGM orin the 2014 OPPA Financial Statements.
There is no evidence that there wasany consultation with the OPPA
Board prior to this purchase. The purchase oftwo condos, worth over
$2 million US, is a very significant investment for theOPPA.
77. This investment involves an offshore jurisdiction,
specifically the Bahamas, it exposes the OPPA to undue risk, and it
is inconsistent with the investmentstrategy of the OPPA. This
investment was described by Walsh to be for thepurpose of making a
profit by renting out the condos, which according to onewitness
could place the OPPAs status as a not-for-profit organization
injeopardy.
2014 OPPA Audit:
LI
78. Witnesses have advised the auditors from Powell Jones
performed the 2014audit and at the conclusion of their audit they
expressed many concerns thatwere outlined in a three page letter,
attached as Appendix C. The letter is forthe purpose of
communicating the findings of an audit of the accounts of theOPPA
for the year ending August 31, 2014. Upon my review of this letter,
Ilearned of the following specific matters that were
identified:
a. Instances were noted where there was a lack of back up to
support thereimbursement of expense claims and Visa statements.
b. A vague investment policy that did not specify what type of
investmentwas acceptable.
c. Accrual amounts for receivables and liabilities had not been
updated fromthe prior year.
d. Not all investment income and management fees were being
recorded ona monthly basis.
e. Significant unusual transactions were identified including: a
deposit of$13,128.00 for a property located at I Cable Beach in
Nassau, Bahamaswhich was being purchased by the OPPA for
$1,563,000.00 USD; and thepurchase of 100 class A shares of New
Providence, a foreign investmentof the Cayman Islands which
occurred on August 28, 2014 and requiredthe cash outflow of $1
00,01 5.00.
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f. There were no disagreements with management during the audit
andmanagement acknowledged recommendations made by the auditor
and
r provided a response to address the identified issues.g. The
audit did not identify any illegal acts, acts of fraud,
misappropriationsof assets, intentional misstatements or errors,
which were not otherwise
U reported.h. Management advised the auditor that no related
party transactionsoccurred. It is managements responsibility to
disclose to the auditor if itwas aware of or suspected any related
third party transactions hadoccurred. The auditor conducted various
tests to identify transactionsconsidered to involve related parties
and found that all related partytransactions that were identified
in the audit had been disclosed in thenotes of the financial
statements.
79. Witnesses have advised the following:
a. The letter was presented by the auditor to the three members
of the OPPAAudit Committee: Bruce Qwigg; Dave Vitti; and Dave
Sanbatini in thepresence of Bain, Taft and Barendregt. Christie
attended the meeting tospeak to the Audit Committee members who
were content with hisexplanations. One witness stated that Christie
fluffed off the issues.
b. The auditor, Ferguson of Powell Jones was to present to the
Board ofDirectors this year but Walsh called it off.
c. Walsh was not a member of the OPPA Audit Committee but he
wasresponsible for selecting the Audit Committee members. It is
also allegedthat Walsh wrote the OPPA Audit Committee Report that
claimed that theiraudit found nothing wrong.
d. At the AGM the delegates were not given time to review the
financialsprior to the meeting. This is the first year that Walsh
opted out of goingthrough the financials line by line at the
AGM.
e. Ferguson advised Walsh that it was his intention to bring up
thedeficiencies he had found at the AGM. However, Barendregt
advisedFerguson that the OPPA intended to fire him, and for unknown
reasonsthe issues were not presented at the AGM. Instead the audit
waspresented as clean, and none of the issues found in the audit
werementioned in the Independent Auditors Report or the Auditors
AGMPresentation.
80. As demonstrated by the information provided by the witnesses
there wasinterference in the audit process and the reporting of
related party transactions,by the senior members of the OPPA, who
are the subjects of this investigation.Ultimately, the 2014 OPPA
Audit publicly concluded that there were no illegal
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acts, related party transactions or even minor issues. The
auditors findingswere based on the information that was presented
to the auditor by the OPPAand by management. There is no evidence
to suggest that the auditor was privyto any information that
demonstrates that Walsh, Bain and Christie arefinancially
benefiting from the OPPAs relationship with PIN and First
Response.As stated in the letter prepared by the auditor, OPPA
management has anobligation to advise the auditor of related party
transactions and did not do so.Management advised the auditor that
no related party transactions occurred. Itis managements
responsibility to disclose to the auditor if it is aware of
orsuspects any related third party transactions have occurred.
OPPA Association Financial Report Presented at the OPPA Annual
GeneralMeeting
81. On November 18, 2014 I reviewed a package entitled the 2014
OPP AssociationFinancial Report that was received by McNamara at
the 2014 OPPA AGM. Ihave included this document at Appendix D and
provided a summary ofrelevant information.
OPP Association Constitution and By-Laws82. On November21, 2014
I reviewed a copy of the OPP Association Constitution
and By-Laws, dated May 2014. I have included this document at
Appendix Eand provided a summary of applicable sections pertaining
to the structure of theOPPA, specific roles of OPPA employees and
board members, honorariaemployment contracts, expenditures,
contracts and investments.
S u rye ii lance:
83. Between November 20, 2014 and February 19, 2015, physical
surveillance wasconducted on the subjects of investigation and the
associated businesses,namely, Christie, Bain, Walsh, Mckay, kozak,
Chantiam, First Response,Leximco and PIN Consulting. The objective
of surveillance was to determine anyassociations between the
subjects of investigation and the businesses as well asconfirming
the places of residence and business. The results of the
surveillance,relevant to this investigation, are summarized
throughout this ITO including inthe places to be searched section
of this ITO.
Summary of Grounds:
84. I have reasonable grounds to believe that the offences of
criminal breach oftrust, fraud, theft and money laundering have
been committed. I base my beliefon the following as set out in this
ITO:
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a. That four witnesses employed by the OPPA have provided sworn
witnessstatements in relation to criminal offences committed by
senior members ofthe OPPA. These witnesses have viewed emails
allegedly from WalshsOPPA email mailbox that describe specific
offences of fraud and theft thathave been committed by Walsh,
Christie and Bain, against the members ofthe OPPA, utilizing the
companies First Response and PIN Consulting.Emails reveal that the
fraudulent scheme has been carried out with theknowledge, guidance
and assistance of Mckay, Kozak and Chantiam;
b. That after Walsh, Christie and Mckay took two trips to the
Bahamas in 2014,they made significant investments in the Cayman
Islands and the Bahamason behalf of the OPPA. These investments
have exposed the OPPAmembership to financial risk and allegedly
involve PIN, a company that hasallegedly been used to defraud funds
from the OPPA membership;
c. That concealment of the beneficial ownership of a company
using trusteesand offshore schemes is a technique used by those in
Canada andinternationally who wish to commit fraud and launder
proceeds of crime. Theuse of an offshore company makes it difficult
if not impossible to obtainnecessary evidence in a timely
fashion;
d. That funds being paid by the OPPA to PIN Consulting, via
Andrew Mckay,are allegedly being laundered, specifically to pay for
shares in First ResponseTravel on behalf of Bain, Walsh and
Christie. The use of a lawyer to concealbeneficial ownership, and
to act publicly as the directing mind of a company isa technique
used by those in Canada and internationally, who wish to
commitfraud and launder proceeds of crime. The protection afforded
topresumptively solicitor-client privilege material that is stored
in a lawyersoffice makes it laborious, expensive and almost
impossible for investigators toobtain necessary evidence in a
timely fashion;
e. That CAO Karl Walsh, President Jim Christie and Vice
President Martin Bainhave made numerous decisions that demonstrate
an intentional lack ofstewardship and accountability. I believe
that they have financially benefittedfrom their actions, breached
the trust of the OPPA membership, and placedthe OPPA and its
membership at a significant financial risk.
Judicial Authorizations Sought:
Solicitor-Client Privilege Considerations:
85. I understand that solicitor-client privilege is a principle
of fundamental justiceembodied in section 7 of the Charter of
Rights and Freedoms. I am seeking tosearch the law office of Andrew
Mckay where business records and othermaterial relevant to this
investigation, which I believe do not pertain to thepractice of
law, have been commingled with solicitor-client privileged
material. Ihave considered whether it is possible to request a
production order to obtain
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the things sought. I am aware that a production order would be a
less disruptiveand intrusive manner to acquire the things sought,
however, McKay is in controlof the things sought, and he is a
subject of this investigation. I believe thatMcKay is conflicted
and also unable to provide the things sought withoutpotentially
incriminating himself. I have considered other options and there is
noother alternative to obtain the things sought than to search this
location. It isimperative that the evidence be collected, and I am
unaware of an alternatelocation where the things sought could be
located.
86. I am also seeking a search warrant for the OPPA office, OPPA
offsiteoffices\residences, three OPPA owned vehicles and two
Production Orders foremails that were copied from the OPPA server
for the accounts used by Walsh,Bain and Christie. I believe that
some of the work done by the OPPA on behalfof the members involves
lawyers, both in house OPPA lawyers and externalcounsel including
Andrew Mckay. For this reason I believe that there isinformation
that is protected by solicitor-client privilege at the OPPA office.
I amaware that there are three lawyers who are employed by the
OPPA, Gavin May,James Girvin and Michelle Hamilton-Mayers. Their
offices are on the third flooraway from other employees of the
OPPA, and this is also the area where theirpaper files are located.
The OPPA lawyers have their own drive on the OPPAserver, which is
called Drive L. Only legal staff members of the OPPA, Ella andWalsh
have access to the L Drive. Investigators will not be searching for
thethings sought on the L-Drive or on the third floor where the
lawyers work andstore their files.
87. This ITO outlines the grounds to support multiple judicial
authorizations thatwould be executed simultaneously. As described,
one of the locations is a lawoffice, and in other locations
associated to the OPPA there is possibility thatsolicitor-client
privileged material may be encountered. For each
judicialauthorization sought, I have proposed conditions to ensure
the maximum
J protection of solicitor-client privilege. In the conditions, I
have proposed theappointment of Court Appointed Referees,
Independent Computer ForensicExaminers (ICFE) and a Chief Referee
to perform the post execution process
J and proceedings required to protect solicitor-client
privilege.
9 88 I have discussed this proposal with Janice LaForme, Senior
Counsel of the- Professional Regulation Division of the Law Society
of Upper Canada (LSUC).
She sent me an email on February 23, 2015 stating the
following:
a. To my knowledge the appointment by a Court of more than one
lawyer toact as an independent Referee in the context of one
criminal investigationwhere the maximal protection ofprivilege is a
concern is not in and of itselfcontrary to the Supreme Court of
Canada 2002 decision in Lavallee andother common lawjurisprudence.
In my view consideration should begiven to inclusion of terms and
conditions of a search warrant and / orassistance order that
would:
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i. Recognizes and affirms the role of the Court as the sole
arbiter ofprivilege.
ii. Address the role and responsibility of each Referee; that of
aSenior! Chief Referee and an Assistant Referee.
ill. Address the relationship between a Senior! Chief Referee
andthe Court.
iv. Ensure the real and apparent independence of the
Senior!ChiefReferee and Assisting Referees from Crown, law
enforcementand targeted lawyer or third party suspect (Referees
need to be atarms length from these parties)
v. Ensure that Senior!Chief Referee and Assisting Referees
areindividuals licensed to practice law in Ontario and are members
ofgood standing with the Law Society of Upper Canada.
89. I have ensured that the conditions laid out in this ITO are
in accordance with therecommendations made by LaForme and the Law
Society Guidelines.28 I havealso ensured that each of the Referees
proposed are acceptable to LSUC.
Things Sought Are Not Protected By Solicitor-Client
Privilege:
90. As described in the grounds of this ITO one of the
individuals under investigationis a lawyer named, Andrew Mckay. On
November 12, 2014, I searched theLawyer Directory on the Law
Society of Upper Canada website and found thatAndrew Peter Mckay is
a licensed lawyer. His status is In Private Practice.The website
lists his business as Andrew McKay Law Professional
Corporationlocated at 702-170 Bloor Street West, Toronto, Ontario.
However, as describedin the grounds for this ITO Mckay and his firm
Warren Mckay GeurtsBellehumeur have relocated to Suite 903 180
Bloor Street West, Toronto,Ontario.
91. I conducted open source Internet checks on Mckay and found
his Linkedln pagewhich states:
a. Barrister & Solicitor Warren Mckay Geurts Bellehumeur,
1999 Present(15 years) Mr. Mckay is a private practitioner of Law
in Toronto, Canada.His practice includes conducting criminal and
administrative prosecutionsand defense. He also has extensive
expertise and experience in traininginvestigative personnel in the
area of search and seizure, investigations,and the rules of
evidence. In conjunction with his policing background andsuperior
advocacy experience, Mr. Mckay has built up his firms
reputation
28 The Law Society Guidelines and the email from Janice LaForme
are included at Appendix F.
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for the representation of police officers throughout Canada on
criminaIregulatory and discipline matters including Special
Investigations Unit(SIU) investigations. Furthermore, Andrew has
been the key coordinatorand facilitator of several courses for
various provincial mini