ONTARIO COURT OF JUSTICE
COURT FILE No.: BRAMPTON 18-5979-01 BRAMPTON 18-5979-04
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
MUHAMAD FIRAZ OMARBACH and ISHAN SULIMAN
Before: Justice A.R. Mackay
Heard on: October 26, 27, 28, 2020, November 23, 2020, March 15, 2021, June 14, August 9, 2021 and November 1, 2021
Reasons for Judgment released on: June 1, 2022
Counsel: Robert Morin and Nicholas Cooper.............................................. counsel for the Crown Diane Lafond......... …………… counsel for the Applicant Muhamad Firaz Omarbach Harval Bassi …………………………….…….. counsel for the Applicant Ishan Suliman
MACKAY J.:
1On January 10, 2022, I advised the parties that I had determined that all of the ITOs provided sufficient grounds to support the issuance of the respective authorizations and that written reasons would follow. These are my written reasons.
Introduction
2As a result of a lengthy police investigation and search warrants executed on April 17, 2018, Messrs. Omarbach and Suliman were charged with offences involving the trafficking of contraband tobacco contrary to s. 121.1 of the Criminal Code1 and with a number of offences under the Ontario Tobacco Tax Act.2 In addition, they were charged with possession of proceeds of crime under s. 354 of the Criminal Code. Approximately four metric tons of contraband shisha tobacco and 377,320 grams of contraband cigarettes were seized.3 The total contraband tobacco seized had an approximate retail value of $639,000 and an approximate total tax loss of $1,673,717.86. At the time of arrest, Messrs. Omarbach and Suliman were each found to be in possession of cash in excess of $5,000.
3A total of 31 Informations to Obtain ["ITOs"] were submitted to the court, with one or more authorizations flowing from each. Twenty-four of the ITOs are being relied on by the prosecution. The ITOs relied heavily on Confidential informants (CIs) along with police investigation. The results of several production orders were relied upon for general warrants and ultimately search warrants were issued. Officer Joe Piergentili of the OPP was the affiant for all the ITOs.
4ITO #30, supported the issuance of eight search warrants which authorized searches of the Applicants’ homes and vehicles, storage units and a commercial business used by the Applicants.
5Ms. Lafond, counsel to Mr. Omarbach, filed an application to exclude evidence obtained pursuant to all the authorizations issued in the investigation. Mr. Bassi, counsel to Mr. Suliman, filed an application to exclude evidence obtained pursuant to the three general warrants issued in the investigation4, as well as the takedown warrants. Mr. Suliman also relies upon the submissions of counsel for Mr. Omarbach in which she challenges all the authorizations.
6The challenge to the authorizations was both facial and subfacial. The Crown proceeded to step six of the Garofoli application. As part of the Applicants’ challenge to the warrants, Officer Piergentili was cross-examined on October 26, 2020 and October 27, 2020. The Crown drafted judicial summaries of the information provided by the CIs and relied on in the ITOs. The judicial summaries were approved by the court on October 28, 2020. Counsel to Messrs. Suliman and Omarbach confirmed that there were no issues with the summaries as approved by the court.
7Messrs. Morin and Cooper for the Crown submitted that the Applicants have not met their onus of displacing the presumed validity of any of the judicial authorizations.
OVERVIEW OF THE INVESTIGATION
8The investigation of Mr. Omarbach came about primarily as a result of police investigation of Messrs. Ali Mallah and Hussam Ibrahim that took place between September 2016 and March 2017 (hereafter referred to as “the Mallah investigation”). On three occasions in November 2016 during the Mallah investigation police observed a Black GMC Yukon at Mallah Halal Meats and, on one occasion they observed two men from this SUV unloading what they believed to be boxes of contraband shisha tobacco at this establishment. Police observed the transfer of these boxes to a second vehicle. The boxes were similar in colour size and shape to Al Fakher shisha tobacco products.5 Police were subsequently able to establish through noting the plate of the Black GMC Yukon, that Mr. Omarbach had rented this vehicle from Avis Budget Group on November 21, 2016 through to December 21 2016. Through a production order, they obtained the driver's licence information associated with this rental contract. The licence belonged to Muhamad Omarbach. The secondary driver was Hiba Hellail, later determined to be the partner of Ihsan Suliman (aka Ihsan Jaradat).
9Subsequently, police watched the video surveillance at Mallah Halal Meats and believed Messrs. Omarbach and Suliman were the men seen coming from the Black GMC Yukon in November 2016.
10In the Mallah investigation police obtained two production orders for cell phone transmission data of Messrs. Mallah's and Ibrahim’s for the time period of Sept 2016 to Dec 2016 and from Jan 2017 for a period of 60 days.
11On March 20, 2017, Messrs. Mallah and Ibrahim were arrested. Searches of storage units associated to Ali Mallah, resulted in the seizure of 787 kilograms of contraband shisha tobacco. At Mallah Halal Meats, police located some contraband tobacco but did not find any contraband shisha products. At Mr. Ibrahim's residence they seized approximately $60,000 and 50 cases of contraband shisha tobacco (300 kilograms). In Mr. Ibrahim's car they found approximately $6,000.00 and 54 kilograms of contraband shisha tobacco.
12The investigation of Mr. Omarbach began in earnest in May 2017 when the first production order was obtained. Various investigative tools were employed, and grounds were built over time with each successive authorization. The CIs grew in number from four to six.
13The affiant believed that the information provided by the CIs, along with the results of several authorizations and surveillance provided police with the requisite grounds to obtain three general warrants and ultimately search warrants of the homes and vehicles of Messrs. Omarbach and Suliman.
14The breadth and invasiveness of this investigation is not lost on the court. While seemingly many of the warrants were not as invasive as the General Warrant or the search warrants, the progressive nature of the investigation amounted to a significant invasion of the privacy of the Applicants. As Ms. Lafond noted over a period of several months, investigators scoured indiscriminately the phone records of the Applicants, and the phone records of the persons with whom the Applicants had communicated with. Police also obtained various personal information such as credit card information and eventually warrants were obtained to install tracking GPS to locate the Applicants vehicles and to track the telephone numbers carried by the Applicants.
15Ms. Lafond submitted that the affiant did not scrutinize his theory of the investigation or test his assumptions. To support her argument, she pointed out that the affiant used mostly the same grounds for each ITO.
16Mr. Morin submitted that using the same grounds in each ITO was an obvious consequence of an ongoing investigation where additional grounds get discovered and therefore added to each subsequent ITO. As the investigation unfolded, the affiant accumulated and drew on different sources of information in his ITOs to build upon his grounds, which in turn became increasingly rich and specific.
17The various authorizations ultimately led police to where the contraband tobacco was stored. The Crown submitted that the fact that police applied for 31 judicial authorizations throughout the course of the investigation exemplifies the length to which they went to proceed cautiously and to scrutinize their theories and sources of information at every step.
NOTION OF PRIVACY INCLUDES ANONYMITY
18As I reviewed all of the authorizations on top of mind was that the cumulative effect of the authorizations amounted to a serious invasion of the Applicants’ right to anonymity and that such incursions required verifiable and substantial grounds.
19It is Ms. Lafond’s submission that police took away the Applicant’s right to anonymity and, to privacy over an extended period of time without having observed Mr. Omarbach in any suspicious activity between May 2017 and December 2017. The cumulative effect of the authorizations clearly resulted in a breach of the Applicants’ privacy and their right to anonymity. However, the state’s interest in detecting crime will prevail over the individual’s interest in being left alone and a search warrant may issue where there are reasonable grounds to believe the search will provide evidence of criminality.6
20It is well documented that the notion of privacy includes anonymity. The privacy interest at stake is not simply the individual's information, but the link between the identified individual and the personal information provided anonymously. Maintaining anonymity can be integral to ensuring privacy. The Honorable La Forest adopted the following concept of the right to privacy and anonymity:
In these public acts we do not expect to be personally identified and subject to extensive surveillance but seek to merge into the situational landscape. The mere fact that someone leaves the privacy of their home and enters a public space does not mean that the person abandons all of his or her privacy rights, despite the fact that as a practical matter, such a person may not be able to control who observes him or her in public. Thus, in order to uphold the protection of privacy rights in some contexts, we must recognize anonymity as one conception of privacy: see E. Paton-Simpson, "Privacy and the Reasonable Paranoid: The Protection of Privacy in Public Places" (2000), 50 U.T.L.J. 305, at pp. 325-26; Westin, at p. 32; Gutterman, at p. 706.7
21It is Ms. Lafond’s position that the affiant and his fellow officers violated the Applicants’ rights to anonymity by putting them under intensive scrutiny over a period of nine months before the affiant admitted that he was unaware if the products the men were alleged to be selling contained tobacco.8
The Law with respect to Reviewing Search Warrants
General Principles
22The Applicant bears the burden of establishing on a balance of probabilities that the search in this case violated their Charter rights and that any evidence seized as a result should be excluded pursuant to s. 24(2).
23In assessing the validity of a warrant, the court must first assess whether there were erroneous, misleading, fraudulent information or inadequate grounds. After excising false or misleading information, the question I must ask myself is whether there was sufficient credible and reliable information to permit a justice to issue a warrant. In considering this question I must be guided by the principles below.
24The test for review of a search warrant was laid out by Justice Fish in R. v. Morelli, 2010 SCC 8 (S.C.C.), at para. 40:
In reviewing the sufficiency of a warrant application, however, "the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued" (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 (S.C.C.), at para. 54 . The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.
25To establish reasonable grounds for a search, the appropriate standard is one of "reasonable probability". It does not require proof on the "balance of probabilities", much less "proof beyond a reasonable doubt" or a "prima facie case".9
26As Rosenberg J.A. held in R. v. Jacobson, 2006 CanLII 12292 (ON CA), [2006] O.J. No. 1527 (Ont. C.A.), at para. 22: "If the inference of specific criminal activity is a reasonable inference from the facts, the warrant could be issued."
27In deciding whether there are reasonable and probable grounds for issuing a search warrant, the reviewing court must be satisfied that it was reasonable for the issuing justice to believe that the evidence will be on the premises at the time of the search not that there is merely suspicion that evidence may still exist.10
28The central issue I must decide is whether the issuing justice had sufficient evidence before him or her as a basis to issue the warrant. I am not entitled to conduct a de novo review of the evidentiary basis for the warrant.11
29Also, it must be remembered that exculpatory, neutral, or equivocal information cannot be disregarded when assessing the totality of the circumstances. Indeed, all the circumstances, including all favorable and unfavorable factors, must be weighted in the assessment to determine if the appropriate standard has been reached.12
30Overall, when assessing the totality of the circumstances supporting the grounds of an affiant for an application for warrant, "the possibility of finding evidence, as a result of the execution of a Judicial authorization, is not sufficient”.13
31The warrant should only be set aside where the court is satisfied that there was no basis upon which the warrant could have been issued: R. v. Garofoli.14 A search warrant authorization is presumptively valid.15
32The ITO must be reviewed as a whole and in a common-sense manner. A contextual analysis is important. Errors, even fraudulent errors, do not automatically invalidate the warrant. Grounds must be assessed cumulatively and with a view to the "totality of the circumstances".16
33A subfacial challenge turns on what an affiant knew or ought to have known when the ITO was sworn. The affiant is entitled to rely on information from others. Because ITOs are investigatory tools, information from others will often form the basis of an ITO. If, upon further investigation, grounds obtained from others prove to be false, that fact alone would not retroactively invalidate what was an otherwise valid authorization. The accuracy of an ITO is to be tested against the affiant's reasonable belief at the time. Absent the affiant displaying a "reckless disregard for the truth", a search warrant may not be quashed where that information turns out to be false. Similarly, any "deliberate falsity, omission or reckless disregard alleged must be that of the affiant to the information and not that of an informant who has provided him with the alleged facts". Importantly, an affiant need not have verified every piece of information they received form others. In terms of information from other officers, while the affiant may not ignore signs that he or she is being misled, the affiant does not need to conduct his or her own investigation if there is no indication that anything is amiss.17
Excision and Amplification
34Erroneous information in an ITO will be corrected by simply removing it. The Supreme Court has provided the following instruction for this exercise. A court must excise from the ITO anything that the affiant knew or should have known was false, inaccurate, or misleading. What is to be excised is information that is erroneous, not information that is correct, or information that contradicts other information, or information with which the reviewing judge does not agree.18
35Furthermore, where full and frank disclosure has not been made, a reviewing court will correct the ITO to achieve full and frank disclosure, and then determine based on that corrected ITO whether the warrant could properly have been issued if full and frank disclosure had been made. In all cases, the focus is on the information available to the police at the time the application was sought rather than the information that the police acquired after the original application was made.19 On the other hand, if there exists any additional material information that the affiant knew or should have known, that information may be added.
36The reviewing court may consider adding limited "amplification evidence" to uphold the validity of the issuance of the search warrant. Such evidence is not a means for the Crown to adduce additional facts to retroactively authorize a search that was not initially supported by reasonable and probable grounds. Rather, a reviewing court may resort to amplification evidence only to correct "some minor, technical error in the drafting of the affidavit material" so as not to "put form above substance in situations where the police had the requisite reasonable and probable grounds,”20 but had, in good faith made such errors. In all cases, the focus is on the information available at the time that the affidavit was sworn, rather than information acquired afterward.21
37After any excisions and additions, if the reviewing Court is satisfied that sufficient grounds continue to exist such that the warrant could have issued, the authorization will remain valid.22
38I will start my analysis with an issue brought by both Applicants, the validity of the general warrants.
THE VALIDITY OF THE GENERAL WARRANTS
39Mr. Bassi and Ms. Lafond seek an order pursuant to section 24(2) of the Charter excluding all evidence derived directly or indirectly from the searches conducted pursuant to general warrants issued on January 31, 2018, February 8, 2018, and February 20, 2018, and all search warrants issued on April 12th 2018. The Applicants restricted their argument to Authorization #22 as the ITOs for the two remaining general warrants were for the most part identical.
40The Applicants submit that there was no basis on the material before the issuing justice of the general warrant dated January 31, 2018 (General Warrant 1) for a finding of reasonable and probable grounds that the search would yield evidence of the offence. They further submit that if General Warrant 1 was unlawful, all subsequent warrants necessarily collapse given that each relied on General Warrant 1 as a basis for its issuance. In effect, the police used the general warrant for the impermissible purpose of circumventing the standards required for obtaining a search warrant pursuant to s.487 of the Criminal Code.
41The Applicants’ position is that ITO #22 in support of General Warrant 1 makes it clear that the affiant did not have reasonable grounds to believe that the search of the subject locations would yield evidence of the offence. The affiant maintains in the ITO that the search is ‘anticipatory’, to determine whether the locations (storage lockers) contain evidence of the offence, shisha tobacco or not. The affiant further makes it clear that he only had suspicion that the locations contained contraband tobacco and nothing more. The Applicants rely on the following excerpt to support their argument, ITO #22, para. 11:
As I may not have explained accurately in the previously submitted and denied application, the reasons for which I am requesting these proposed Orders is not to merely search Storage City Self Storage lockers G 1283 and H1355. In order to obtain evidence to support the charge that the suspects in this investigation are trafficking contraband tobacco, investigators must first prove that tobacco is present within the storage lockers. At the time of this application, investigators have not confirmed whether or not contraband tobacco is in fact within Storage City Self Storage lockers G1283 and Hl355. Secondly, if product believed to be contraband tobacco is located within those two (2) lockers, investigators must prove that those products contain tobacco. As stated above, the purpose and reasons for this proposed General Warrant is anticipatory, as it is not known whether or not contraband tobacco is being stored in Storage City Self Storage locker G 1283 and Hl355. If product is located within Storage City Self Storage locker G1283 and Hl355, testing will have to be conducted to determine whether or not it contains tobacco. As stated in the previously denied Information to Obtain, I am requesting that police enter storage lockers Gl283 and H1355 in order to seize a sample(s). Based on my training and experience investigating contraband tobacco, I know that Al Fakher makes shisha that contains tobacco, but also makes herbal products that do not contain tobacco…. [emphasis added]
42The above statement is also problematic for the following reason. Why does the affiant not indicate in previous ITOs that there is a possibility that what the Applicants were selling was only herbal shisha, a business which is not criminal?
43Mr. Bassi submitted that the ITO in support of General Warrant 1 does not satisfy the standard set out in Hunter v. Southam Inc. as the affiant did not possess reasonable grounds to believe that unstamped tobacco would be found in the storage lockers. Rather, the investigation sought a search to confirm whether the lockers contained tobacco or not. Mr. Bassi submitted that the General Warrant #1 is based only upon suspicion and was a purely intelligence gathering exercise. The affiant had stated in ITO #22, the reason for the warrant was to seize samples of any shisha product that could contain tobacco for the purpose of testing to determine whether it contained tobacco or an herbal product.
44Ms. Lafond submitted that ITO #22, reveals that the affiant did not have the requisite grounds for all the warrants preceding it. Specifically, Ms. Lafond relies on paragraph 22 where the officer used the following language:
I believe that the suspect may be storing contraband tobacco at Storage City Self Storage. […] Based on my experience investigating contraband tobacco offences, I know that Al Fakher makes shisha that contains tobacco, but also make herbal products that do not contain tobacco. […] In order to obtain evidence to support the charge that the suspects in this investigation are trafficking contraband tobacco, investigators must first prove that the product believe to be stored in Storage City Self Storage lockers G1283 and H1355 contain tobacco. […] As stated above, the purpose and reasons for this proposed General Warrant is anticipatory, as it is not known whether or not contraband tobacco is being stored in Storage city Self Storage [emphasis added]
45Ms. Lafond refers to the affiant’s use of the word “may” in the context of explaining his reasonable belief as revealing that he did not have reasonable and probable grounds. Ms. Lafond points to the seminal case of Hunter v. Southam in which Justice Dickson stated the following:
To associate it with an applicant's reasonable belief that relevant evidence “may” be uncovered by the search, would be to define the proper standard as the possibility of finding evidence. This is a very low standard which would validate intrusion on the basis of suspicion and authorize fishing expeditions of considerable latitude. It would tip the balance strongly in favour of the state and limit the right of the individual to resist, to only the most egregious intrusions. I do not believe that this is a proper standard for securing the right to be free from unreasonable search and seizure".23 [emphasis added]
46At the time the General Warrant 1 was issued, nine months had passed since the beginning of the investigation and twenty-one authorizations were already granted. It is Ms. Lafond's position that in each ITO there were many indicators that the affiant was unaware of whether the Applicants were trafficking in illicit tobacco or were selling herbal products that do not contain tobacco.
47Ms. Lafond pointed out that in a number of the ITOs relied on by the police to obtain production orders (pursuant to s. 487.014) the affiant stated the purpose for the warrants as follows:
…to confirm if Mr. Omarbach was the owner of certain cell phone numbers, in order to allow them to proceed with other police techniques, judicial authorizations and background investigation to verify whether Mr. Omarbach is involved in trafficking contraband tobacco".24 [emphasis added].
48It was counsel’s position that the use of the word "verify” above reveals that the affiant did not know that the shisha products being investigated contained tobacco as opposed to being an herbal variety of shisha, the selling of which is not a criminal offence. In ITO #2 discovering the ownership of a cell number was "to confirm" if Mr. Omarbach was trafficking with others. ITO #2 relied upon four CIs. Similar language was used in 11 subsequent ITOs; the purpose of the ITOs ranged from seeking information about ownership of particular cell phone numbers, obtaining transmission data for particular cells phones, obtaining records of person's entering storage facilities and providing names of person renting specific storage units, to more invasive searches such as installing tracking devices on the Applicants’ vehicles and cell phones to determine who the suspected parties were communicating with and their connection to storage units.25
49Mr. Morin submitted that when the officer used the words "to verify" and “confirming” that Mr. Omarbach and others were trafficking in contraband tobacco in several of the ITOs , what the affiant was conveying was that he wanted certainty that the applicants were trafficking. In the earlier ITOs, they needed confirmation before they proceeded with other police techniques, judicial authorizations, and background investigation to verify whether or not Mr. Omarbach was involved in trafficking contraband tobacco. By proceeding cautiously, the police displayed that they were being diligent and thorough. When the overall grounds in the ITOs are read in their entirety, it is clear that the affiant had reasonable grounds to believe that Mr. Omarbach was trafficking.
50During surveillance police observed what they believed to be Al Fakher products in both this investigation and in the Mallah investigation. Al Fakher produces both shisha tobacco and herbal flavoured shisha. I did not hear evidence about how the packaging differed from herbal shisha versus tobacco shisha.
51It is the Crown’s position that the general warrants should not be quashed. The investigators were doing multiple covert entries (i.e., "sneak and peaks") for the purpose of verifying that the product, for which there was already reasonable grounds to believe, was in fact illicit tobacco. The investigators also wanted to do multiple covert entries to gather additional evidence concerning the scope of the trafficking operation. The technique required a general warrant and its issuance in the circumstances was appropriate.
The Law on the Use of General Warrants
52The Court of Appeal in R. v. Christiansen set out the parameters with the respect to the use of a general warrant as follows at para. 10:
General warrants under s. 487.01 authorize the use of investigative techniques, procedures or devices, or other things to be done, that would otherwise constitute unreasonable searches. Subsection 487.01(c) restricts general warrants to cases where "there is no other [legislation] that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done." The Supreme Court dealt with this legislative restriction in R. v. Telus Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3, [2013] S.C.J. No. 16 (S.C.C.). Justice Moldaver explained, at para. 80, that this requirement ensures that general warrants are to be used "sparingly" when the "investigative technique is truly different in substance from an investigative technique accounted for by another legislative provision." He explained that s. 487.01(c) serves to ensure that "general warrants may not be used as a means to circumvent other authorization provisions that are available but contain more onerous pre-conditions."26 [emphasis added]
53A general warrant cannot be used for the purpose of circumventing the requirements for a conventional warrant under section 487 of the Criminal Code when the grounds for the conventional warrant do not exist.27
54While the police are entitled to use a general warrant to further an investigation in appropriate circumstances, such a warrant remains to be a search and seizure and it must comply with the Hunter v. Southam standard. It must be based on reasonable grounds to believe that an offence has been or will be committed and reasonable grounds to believe that evidence of that offence will be found at the place to be searched.28
55There is nothing in the language of s. 487.01(1)(c) that precludes a peace officer from obtaining a general warrant solely because he or she has sufficient information to obtain a search warrant. Resort to a search warrant is only precluded when judicial approval for the proposed "technique, procedure or device or the doing of the thing" is available under some other federal statutory provision.29
56That police are in a position to obtain a search warrant does not prevent them from continuing to investigate using all other lawful means at their disposal. As explained in R. v. Brand, it is acceptable and not unlawful for police to obtain a warrant to obtain additional or better evidence than that which could be seized immediately through the execution of a search warrant. In many cases the information the police present in support of an application for a general warrant could also support an application for a search warrant.30
57The factual circumstances in Brand illustrates that in situations where there are multiple properties that are believed to be marihuana grow operations, the police can use a search warrant to search and a general warrant for a "sneak and peak". This investigative technique allows the police to ascertain which properties are truly grow ops and need search warrants, compared to those properties that are not grow ops, and therefore would not require a search warrant.31
58In some respect police would be aware that an application for a general warrant has stricter requirements; they can only be issued by a judge and not a justice of the peace and they must establish that it is in the best interests of the administration of justice to issue the general warrant.32
59The Supreme Court underlined that general warrants are to be used sparingly. They are not to be the go-to, front line warrant of general application. The purpose of general warrants is to aid the police in using investigative techniques that would breach the Charter but are necessary for the police to effectively perform their investigative function. It does not become an "easy back door for other techniques that have more demanding pre-authorization requirements".33
Analysis with respect to the General Warrants
60While Mr. Bassi was correct that obtaining General Warrant was purely an intelligence gathering exercise , this does not take away from the fact that the police had reasonable and probable grounds to believe that a contraband shisha tobacco would be found in the storage units.
61When the affiant used the following phrase "I believe that the suspect may be storing contraband tobacco at Storage City Self Storage”, it certainly conveys a belief less than reasonable and probable grounds and it was in the circumstances a poor choice of words. While I do agree that the language used in this paragraph does not establish the requisite grounds for this general warrant, I am required to look at the entirety of the ITO, including the information provided by the CIs and the police investigation which corroborated that information. As I will explain in greater detail below, I am satisfied that the affiant had reasonable and probable grounds to believe that contraband tobacco was being stored in the lockers.
62After reviewing the ITOs I have determined that the circumstances in Christiansen are distinguishable from the case before me. Here, investigators had reasonable grounds to believe that illicit tobacco was being stored in the storage unit. I am of the view that by using the general warrant provisions, police wanted to further their investigation. In fact, police did a number of covert entries and continued to surveil the accused men. Based on the information the police had amassed, I believe the affiant had reasonable grounds to believe that police would find contraband tobacco. What they wanted the general warrant for was, in large part, to determine the scope of the trafficking and possibly to confirm that all storage units contained the contraband tobacco. The latter is exactly what was done in R. v. Brand (sub nom R v Ford).
63A number of cases from the Court of Appeal have confirmed that the "sneak and peak” entries via a general warrant are entirely appropriate in situations involving a commercial or storage facility.34
64General warrants are the only warrants available that provide for use of multiple covert entries thus satisfying the precondition found at s. 487.01(c).35 Covert entry onto the property for the purpose of confirming the scope of criminality would constitute an unreasonable search in the absence of prior judicial approval. As judicial approval for such an entry cannot be granted under s. 487 of the Code, s. 11 of the Controlled Drugs and Substances Act, or any other federal statute, a general warrant under s. 487.01 was available.36
65In my view it was somewhat disingenuous for the affiant to put forward that his main purpose for using the general warrant, was to allow police to verify for certain the storage units contained the contraband tobacco. The ITO for the first general warrant and following, state that they wanted to confirm and verify that the storage units contained shisha tobacco. However, in all of the previous ITOs there was no suggestion that police needed to verify that the parties were trafficking in contraband tobacco as opposed to selling herbal shisha.
66Greater transparency is to be expected. The affiant simply needed to state that the investigation was continuing and that he did not want to use a conventional warrant as this would have effectively put an end to the investigation. While this purpose was stated in ITOs #22, 24 and 27, it was secondary to the purpose of verifying that the product was tobacco as opposed to herbal shisha. In fact, the affiant testified that a central purpose for the general warrants was to not compromise their continued investigation. Another and secondary reason provided by the affiant to seek a general warrant was to be fair to the targets, to make certain the units contained contraband tobacco before raiding their units and disrupting the Applicants’ lives by using conventional warrants.
67The use of the language “may” brought an unnecessary sense of equivalency to the grounds when the police had in fact acquired significant grounds that they were able to corroborate. Police are not obligated, before conducting an arrest or search, to confirm the very criminality alleged by the informant.37
68The parties did not specifically raise whether the issuance of the general warrants was in the best interests of the administration of justice. Given the general warrants would provide the police with further information and evidence about the scope of the trafficking and that no other investigative tool would allow for this procedure, I find that the general warrant (s) met this important requirement of 487.01(1)(c) of the Code.
69Given I have found that the general warrants should be upheld, there is no s. 8 Charter breach and it is therefore, not necessary to embark on a s. 24(2) analysis. The general warrants and the subsequent ITOs provided the police with more than ample grounds for the takedown warrants.
Issues Raised by Mr. Omarbach
70While the main thrust of Ms. Lafond’s submissions was that the affiant did not have reasonable grounds to believe or suspect that Mr. Omarbach was involved in trafficking contraband tobacco prior to the execution of the general warrants, she also raised a multitude of issues with respect to all of the ITOs. To briefly summarize, it was her view that the police had tunnel vision and that the affiant provided misleading statements in the ITOs. Her issues with the ITOs included that the CIs were not credible, that the information they provided was not compelling nor was it corroborated by police. Based on these shortcomings the Applicants submit the evidence obtained from the authorizations should not be admitted into evidence pursuant to s. 24(2) of the Charter.
THE RELIABILITY OF THE CIS: APPLICATION OF THE DEBOT CRITERIA
71In Ms. Lafond’s first Charter application, there were a number of issues raised with respect to the CIs that were addressed once the judicial summaries were provided to counsel and as a result, they do not require lengthy analysis. These issues included whether the CIs had criminal records for dishonesty; the consideration provided to the CIs; and whether the information provided by the CIs in the past led to arrests or convictions.
72The Crown argues that all of the CIs’ information is reliable and that all of the material grounds provided by the CIs as set out in ITO #30 were substantially corroborated.
73Prior to assessing the reliability of each CI, I will review the law with respect to this issue.
The Debot Criteria
74Where, as in this case, the sufficiency of the information depends largely upon information supplied by a confidential source, the test to be applied by the reviewing court was explained by Wilson J. in the seminal case of R. v. Debot:38
In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Secondly, where that information was based on a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two. [emphasis added]
75Below I will assess Ms. Lafond’s general and specific concerns about the CIs and then assess the value of each CI’s information individually. Where credibility was lacking in some respects it is the Crown’s position that the CIs’ reliability is still considerable because the information most of the CIs provided was compelling and corroborated.
Was the Information Compelling
76Ms. Lafond submits that the information provided by the CIs was not compelling for the following reasons:
a. The information provided was general, vague and lacked detail;
b. The information provided did not relate to trafficking in illicit tobacco;
c. Some of the information provided by the CIs was publicly available for example, the phone number of Mr. Omarbach;
d. Mr. Omarbach was only identified by the following variants of his name: “Omar" and "Abu Omar";
e. Mr. Omarbach's phone number was not related to trafficking in illicit tobacco.
f. CIs provided information in exchange for consideration of related charges and or for monetary gain;
g. Information provided was second-hand;
h. Some CIs were not proven;
i. No indication if past information provided led to convictions.
77I turn now to address each of these issues.
Information was General, Vague and Lacking Detail
78Ms. Lafond submitted that the CI information was general, vague and lacking detail. The reality is that the applicants are at a great disadvantage in that they cannot see the redacted portions of the ITOs. The unredacted ITOs revealed that most of the CIs provided to varying degrees detailed and specific information.
Information did not expressly relate to Trafficking
79Ms. Lafond suggested that the CI information did not relate to trafficking in illicit tobacco. However, all the CI information expressly related either directly or indirectly to trafficking contraband shisha tobacco. All but one CI 5 gave information regarding Mr. Omarbach’s trafficking.
Information Provided was Publicly Available
80The Applicants suggests that some of the information provided by the CIs was publicly available, for example Mr. Omarbach’s phone number. This actually was not the case for at least two of the numbers police believed to be used by Mr. Omarbach. These numbers were obtained by using a fictitious name and address. Various numbers said to be Mr. Omarbach’s were provided by the CIs. Police were only able to confirm with some certainty that Mr. Omarbach was using these numbers after a great deal of investigation and analysis of the phone records. On the other hand a great deal of information was provided that the public would not know, this included who Mr. Omarbach’s associates were, the locations he did business and the role that Mr. Suliman played in Mr. Omarbach’s business.
Mr. Omarbach was referred to by Variants of his Name
81Ms. Lafond submitted the identification of Mr. Omarbach was in issue because he was only identified by the CIs using variants of his name (i.e., "Omar" and "Abu Omar"). Most of the CIs, however, identified Mr. Omarbach by a photo. Further, the CIs provided other detailed information concerning his identity such as where he lives, personal characteristics, associates, as well as his business activities. Much of that information was also corroborated though police surveillance and other sources. Given the information provided by the CIs, the fact that the CIs only knew Mr. Omarbach by a nickname does not detract from their identification of him.
Mr. Omarbach’s phone number was not related to trafficking
82Ms. Lafond submitted that Mr. Omarbach's phone number was not related to trafficking in illicit tobacco. However, police investigation did establish a link between Mr. Omarbach’s phone numbers and to those believed to be trafficking and those actually arrested for trafficking in contraband tobacco from which large amounts of tobacco were seized. The links were established through production orders for transmission data and police analysis of that data. The individuals in question included Messrs. Mallah, Ibrahim, Ahmad El Daoud and Feras Albetar. Transmission data revealed that Mr. El Daoud’s phone had transmissions with a prepaid number which was believed to be owned by Mr. Suliman.39 Transmission data also revealed that Mr. EL Daoud remained in contact with Mr. Omarbach.40 Mr. Omarbach’s number also showed up on phone numbers belonging to Amer Saylgh, Mohamad Salad and Ziad Boutari; these individuals were also believed to be contraband tobacco traffickers.41 In addition , there were 300 hundred phone communications between Messrs. Omarbach and Hanoura who was also believed to be a tobacco trafficker. While the number believed to be used by Mr. Omarbach was a pre-paid phone number,42 there was various grounds to support that the phone number ending in 1142 belonged to Mr. Omarbach. These grounds came from CIs, judicial authorizations and police analysis of the transmission data.43
Consideration Provided
83An issue common to most of the CIs is that they provided information in exchange for consideration of their own criminal charges. Most of the CIs were entrenched in the shisha tobacco trafficking trade. However, the CIs were made aware that they would not receive the benefit unless the information provided resulted in the seizure of evidence and/or the laying of charges. This served to lessen issues with reliability in relation to the CIs’ motivation in that the contingency basis of the benefit would provide the CIs with an incentive to provide accurate information.
Unclear whether information was first or second-hand
84Ms. Lafond suggests that it is unclear whether the information from the CIs was first or second-hand. The affiant was cross-examined on this point, and he clarified that the only second-hand information provided was from CI2. The judicial summary of the information from that CI identifies the second-hand information by making it clear where the information came from.
CIs Not Proven
85Counsel also submitted that it is problematic that some of the CIs had never been CIs before. While this is a consideration, it is to be balanced against how compelling the information provided was and the degree of corroboration.
Past information did not lead to arrest
86Counsel also raised the concern about whether the past information provided by the CIs which led to arrests also led to convictions. The judicial summaries addressed the use of such past information. Only CIs 2 and 5 provided information to the police in the past and such information was used to lay charges. There is no indication that the information was unreliable.
87Information given by a CI in the past need not have resulted in a conviction for a court to find that the CI is credible. "There are a number of reasons reliable information from a CI does not result in a conviction."44
Assessment of each CI
88Turning now to briefly address the reliability of each Confidential informant.
CI1
89Ms. Lafond submitted that CI1’s information was dated and as a result had no value.
90CI1 information was provided three years prior to the submission of ITO #1. The currency of the information, in terms of the last time observations were made is crucial in order to determine whether the alleged criminality is current and ongoing.45 When the information provided is no longer contemporary, it should be afforded little weight. In the result, I would agree that the information provided by CI1 has little value.
CI2
91Ms. Lafond submitted that the information provided by CI2 is not reliable in light of the information not being first-hand knowledge. CI2’s reliability is further brought into question by the fact that (s)he was previously convicted of a crime involving dishonesty, and the motivation for providing information was to receive assistance with respect to their own charges.
92While CI2 provided information that was second-hand, (s)he revealed the source of their knowledge. CI2 also provided very detailed and date specific information. The information provided included the following: details concerning a shisha smuggling operations; a name was provided of someone involved in smuggling the shisha across the border and information about the smuggling; and names of person who purchased shisha from “Abu Omar” (aka Omarbach).46
93The Crown agrees in part that the credibility of CI2 is weakened because of these factors raised by the Applicant, however, submitted that this is offset to some degree by the fact that CI2 provided compelling information that was corroborated. In addition, CI2 provided information to police in the past which led to contraband tobacco being seized and persons being charged.
94When information provided is not first-hand knowledge, the reliability, and the credibility of the source of knowledge should be established. When the reliability of the source of knowledge of the informant is not disclosed, the information must be treated as rumor or gossip and given little to no weight in its evaluation.47 While firsthand knowledge is preferable, given the detail provided by CI2, the information appears to be more than rumour or gossip.
95After weighing the Debot criteria I find that the issues concerning credibility are not so great as to find that CI2 was not reliable when there was significant corroboration and detailed information was provided. In addition, the nature of their criminal conduct was not of a serious nature.
CI3
96Ms. Lafond argues that the information provided by CI3 is not reliable in light of CI3, being previously convicted of a crime involving dishonesty and providing information for consideration of charges. The Applicant also suggested that CI3 provided dishonest information in the past. It was Mr. Morin’s position that it was noted in the appendices to the ITOs that CI3 had never provided information to the police in the past. However, in the judicial summary the Crown wrote: “C13 is known to have been dishonest in the past. But there is no indication that information provided by C13, as outlined in this Appendix was not credible”. The Crown’s comment was not clear and as a result left the defence with the above impression. Nevertheless, based on the unredacted ITO, CI3 has not provided information to police in the past.
97Crown counsel conceded that the credibility of CI3 is weak, however, they argued that this is offset by the compelling nature of the information provided and the degree of corroboration.
98Although the credibility of CI3 was weak, I agree with the Crown that CI3 provided significantly compelling information and that there was a high degree of corroboration. The information provided including the following: information about a specific shisha transaction and the naming of two people involved in that transaction; CI3 provided personal details about Mr. Omarbach and had first-hand knowledge of Mr. Omarbach’s involvement in shisha; S(he) provided a number of details concerning other aspects of his business including that Jaradat (Mr. Suliman) handled the running of the shisha tobacco business for Mr. Omarbach; CI3 provided two different phone numbers for him. Information about another party who Mr. Omarbach did business with was provided and about a business this individual owned. The information was relatively current. Significant corroboration of some of the information was also achieved.48
CI4
99The Applicant argues that the information provided by CI4 is not reliable because the CI had never provided information to the police in the past and (s)he was motivated in relation to outstanding charges. While these factors are important considerations, on balance considering the compelling information provided and the corroboration of that information, I find that CI4 provided credible and compelling information.
100The following is a brief summary of the many details provided by this informant: Names of persons who were involved in trafficking shisha tobacco with Mr. Omarbach; details about each of these individuals and details of their involvement in shisha trafficking; names of places where the shisha tobacco was sold; details concerning various aspects of how Mr. Omarbach managed his shisha business, this included quantities, price, and areas the applicant sold shisha. S(he) advised that Jaradat (aka Suliman) ran his business and described some of his tasks. Further information was provided about how “Omar” transported his shisha and how he stored it. The value of the information was increased as CI4 provided first-hand information.
No Corroboration of Information Provided by CI4 prior to ITO #1
101It is Ms. Lafond’s submission that, paragraph 36, of ITO #1 dated May 23, 2017, reveals that the affiant did not make any attempts to corroborate CI4’s tip for the following reason. Prior to ITO #1, another ITO dated May 19, 2017 was submitted to the court but it did not result in an authorization.49 The affiant added CI4 to this second ITO, four days later. Based on the timeline, Ms. Lafond submits that the affiant would not have had an opportunity to corroborate any of the information provided by CI4.
102A review of ITO #1, at paras. 89 to 92, reveals that the police did confirm some of the information provided by CI4. They already had this information from the previous investigation. CI4 advised that Ihsan Jaradat (Ihsan Suliman) “runs Abu Omar’s (Omarbach) tobacco business.” Police analyzed the results of transmission data that they obtained during the Mallah investigation and found one transmission between Mr. Mallah’s cell and a number registered to Mr. Jaradat (Suliman). Analyzing the same data police documented two transmissions between Mr. Ibrahim’s cell and Mr. Jaradat (Suliman). In addition, police showed CI4 a picture of Mr. Omarbach and (s)he confirmed this was Abu Omar. The following final piece of corroboration however is problematic: CI4 advised that Mr. Jaradat drives a “dark colour Honda CRV”. The affiant stated that he conducted a search on MTO and learned that Ihsan owns a licence plated brown 2011 Honda CRV.50 However, this proved to be incorrect, the vehicle was not registered to Mr. Jaradat. In subsequent ITOs the correct information was that a dark Honda was registered to Mr. Jaradat’s spouse whose surname is Hiba Hellail.
CI5
103Ms. Lafond suggests that the information provided from CI5 is irrelevant. I would agree that CI5’s information does not by itself appear to be relevant. CI5 provided information about other men trafficking in contraband tobacco. In fact (s)he does not mention the Applicants’ names. However, the names CI5 did provided showed up on cell phone transmission data of Mr. Omarbach. In addition, police were able to find some confirmation that these men were involved in trafficking native cigarettes with Mr. Omarbach.51 The affiant incorrectly referred to CI5 as providing a number for “Abu Omar”, given the appendixes it would appear that the affiant meant CI6.52
104CI5 provided extensive detail about the men s(he) said were trafficking in shisha tobacco and while not linking them to Omarbach, further police investigation did find links between some of these men and the Applicants. In the result , the details were compelling and provided corroboration of information police received from the other CIs.
105CI5 was a proven CI who provide information to police in the past. S(he) had a criminal record, but it did not include crimes of dishonesty. The motivation to assist did not include monetary consideration or consideration for charges. In the circumstances I find that CI5 had moderate credibility.
CI6
106While CI6 had not been used by police before, (s)he did not have a criminal record. The consideration to provide information was monetary and for non-consideration reasons. While CI6’s credibility was moderate (s)he provided very compelling, current and detailed information. The information provided by CI6 included the following: the names of four people involved in shisha trafficking; information about Mr. Omarbach’s involvement in shisha trafficking; phone numbers for Mr. Jaradat’s tobacco business and additional details about how he could be contacted; various other relevant details were provided about the names CI6 provided which included their role in the trafficking and their phone number; CI6 had three numbers for Omar; s(he) advised which numbers Omarbach used to discuss tobacco business; s(he) also provided the name of Mr. Omarbach’s largest client and of his future plans regarding his business. CI6 also provided information about how Mr. Omarbach moved his tobacco and where he stored it. CI6’s information about Mr. Omarbach’s shisha business was first-hand.
107The information provided by C16 was current in relation to the investigation.
108Significant corroboration of C16’s information occurred in the more recent ITOs. C16 provided information that was credible and compelling.
Corroboration of information provided by the CIs
109The law is clear that an affiant is required to make real efforts to establish why the information provided by informants was reliable, credible, and truthful. Courts have recognized that people may "have a motive to falsely accuse others and that the risk is particularly significant when an informant is shielded by an absolute and impenetrable immunity.53 All the circumstances, including the degree of detail of the information proffered, past experience of the police with the informer, and other objective circumstances tending to corroborate or not to corroborate the information must be looked at.54
110It is Ms. Lafond’s submission that much of the information provided by the CIs was not corroborated; she also argued that by attempting to corroborate CI information, police revealed that they had little confidence in the information the CIs provided. While her position with respect to the handlers’ opinion of an informant may be true, police always have a duty to make best efforts to corroborate information provided by an informant.
111The corroboration of the CI information was substantial and significant. Police used several investigative tools to corroborate information provided by the CIs and to obtain further evidence. In addition, the CIs’ information corroborated one another. Given the breadth of the corroboration, I do not intend to review this evidence in detail in the body of my reasons. I have instead attached as Appendix A, the Crown’s itemization of the corroboration as taken from ITO #30. I have cross-checked Mr. Morin’s references in the context of the whole of each ITO and found no error in this summary.
112While the corroboration of CI information appears throughout the ITOs, for ease of reference much of it can be found in paragraph 289 of ITO #30. Mr. Morin relied on ITO #30 as it summarizes all of the grounds which were built over time commencing with ITO #1. While it is helpful to review ITO #30, it is important to review all the ITOs that preceded it as counsel had done. Misstatements or misleading information in the early ITOs could have resulted in subsequent authorizations being set aside.
113I have reviewed each ITO and am satisfied police were in many instances able to corroborate information they received from the CIs. The sources of corroboration were obtained through production orders to obtain subscriber information for several numbers, police surveillance, analysis of phone records, production orders to obtain information regarding leases of storage units, searches on the Worldwide Web, MTO searches, Province wide checks of police data bases, obtaining information from Canada Border services, obtaining information from the Ministry of Consumer and Commercial relations; authorizations for tracking of vehicles and cell phones provided further cogent corroboration. The CIs provided independent information and the majority of them provided information that corroborated to varying degrees what another CI provided. CIs 1, 2, 3, 4, and 6 independently stated that Muhamad Omarbach was trafficking contraband tobacco.55
114With each successive authorization, the corroboration grew and provided for more detailed and compelling information. While there can be no issue that there was significant corroboration at the time the search warrants were issued, it is important to look at what corroboration existed for the first ITO, the first building block. After reviewing ITO #1 I am satisfied that the police did have sufficient corroboration of the information they received from the CIs and that the grounds supported the issuance of that production order. The subsequent ITOs as well contained information provided by the CIs that was corroborated to a sufficient degree such that the reviewing justice could find that the requisite grounds existed for the issuance of those authorizations.
115Much of the corroboration provided in ITO #1 came from information obtained through production orders, police investigation and surveillance during the Mallah investigation. The following is a short summary of the information and corroboration found in ITO#1. In November 2016, CI2 said that Hussam Ibrahim and a man named "Abu OMAR' were trafficking contraband tobacco. Between November 16, 2016 and November 28, 2016, Mr. Omarbach was observed by the police to be attending Mallah Halal Meats with Mr. Suliman on three occasions. Police confirmed it was Mr. Omarbach through an MTO search and a production order. The production order revealed that Mr Omarbach rented a Black GMC Yukon during the time period of the above surveillance. Police also watched the surveillance and were able to identify the Applicants. On one occasion police observed Mr. Omarbach to be delivering what appeared to be Al Fakher cases of shisha tobacco. Mr. Omarbach’s telephone number was also linked to Ali Mallah. On March 20, 2017, Ali Mallah and Hussam Ibrahim were arrested and charged with trafficking contraband tobacco, and large quantities were seized. CI3 also advised that Mr. Omarbach was trafficking with a man named “Feras”. Police were able to confirm details CI3 provided about Feras Albetar. Mr. Albetar cell number had transmissions with Mr. Ibrahim’s cell number. CI2 and CI3 provided details of a transaction involving Mr. Omarbach with some differences. CI2 stated that “Abu Omar”(Mr. Omarbach) and a man named Ahmad Daoud were trafficking. Phone transmission data revealed transmissions between Mr. Mallah’s cell phone and Mr. El Daoud’s cell phone. CI4 advised that Ihsan Jaradat ( Mr. Suliman) runs “Abu Omar’s” tobacco business. Transmission data revealed that Mr. Suliman had communications with both Messrs. Mallah and Mr. Ibrahim. CI1, CI3, and CI4 were shown a picture of Mr. Omarbach and they confirmed that this was the man they referred to as Abu Omar.
Overall Assessment of the CIs
116The value of some CIs was stronger in terms of their credibility and the compelling nature of the information they provided than others. While I reviewed each CI independently in assessing whether the information they provided gave police the requisite grounds, the ultimate decision with respect to the validity of the warrant is not found in each CI independently but rather in combination of all of the information provided by the CIs and the corroboration of their information. The corroboration of the information provided grew to be quite extensive by the time the twenty-second authorization was issued. As already stated, each ITO however must be looked at independently to determine whether the requisite grounds were established for each ITO.
117After reviewing all of the ITOs, I have concluded that all the CIs with the exception of CI1, contributed information that provided a piece of a completed puzzle, the corroboration elevated this information to credible and trustworthy information such that it could be relied on to provide reasonable grounds to believe that the Applicants were trafficking in contraband tobacco and ultimately that evidence of the Applicants’ trafficking would be found in specific storage units.
MISLEADING INFORMATION
118The Applicants submit that the affiant made a number of misrepresentations throughout all of the ITOs. In addition, Ms. Lafond argued that the police omitted to add to the ITOs important exculpatory information.
119Police officers seeking Judicial authorizations are bound to act with diligence and integrity, taking care to discharge the important duties of candor and full disclosure that attach to ex parte proceedings. Deliberately providing misleading information can amount to a subversion of the values that underlie the ex parte system. Police must not exaggerate or embellish the information upon which they rely to establish reasonable and probable grounds for issuance of the judicial authorization. The inclusion of incomplete recitation of the facts, blind ritualistic wording, improper rhetorical tactics will elevate the seriousness of the Charter-infringing conduct of an affiant.56
Observation of Mr. Omarbach to be trafficking at Mallah Halal Meats
120In all of the ITOs, the affiant reported that Mr. Omarbach and Mr. Suliman were seen attending Mallah Halal Meats in a black GMC Yukon SUV and observed to traffic shisha tobacco at Mallah Meats on one occasion.57 It is the Applicants’ submission that the affiant misrepresented the following details of what police observed during surveillance at Mallah Meats in November 2016.
i) Inability to observe the licence plate number
121Reliance on the plate number seen during the November 2016 surveillance and linking it to Mr. Omarbach was part of all the ITOs. Ms. Lafond argues that it was impossible to identify the licence plate of the dark SUV seen on November 23rd and 28th 2016, due to the poor quality of the video. When asked to review the video in court, the affiant acknowledged during cross-examination that the quality of the video was poor. In police notes, the investigator assigned to the surveillance stated on November 23 that the licence plate “appears” to be BZKN 371.
122It is the Crown’s position that while it was not clear on the surveillance footage, based on the affiant’s testimony, police were able to observe the correct plate number when at the scene. However, there is also another error in the ITOs; the affiant incorrectly stated in several ITOs that police were able to observe the plate number on November 28, 201658 when PC O’Connell clearly wrote in his notes that he was “unable to obtain a plate for the Yukon.”59 Given the error, I will excise reference to the plate and add that police were “unable to obtain the plate for the Yukon on November 28, 2016”: I make this correction for all of the ITOs where it appears.60
123The affiant wrote in the first ITO and in each subsequent ITO that on November 16, 2016 and November 23, 2016 police observed a black GMC Yukon attend at Mallah Halal Meats bearing licence plate BZKN 371. I have not seen the officer’s notes for these dates but given counsel’s submissions which were not corrected by the Crown, I understand that police recorded on both dates that the plate ‘appeared to be’ the number in question. I will add to all relevant paragraphs in the ITO that ‘the plate appeared to be BZKN 371’.
124The following is a summary of the affiant’s description of the police observations with respect to the Al Fakher shisha tobacco at Mallah Halal Meats. On November 23, 2016 police observe a black GMC Yukon bearing plate BZKN 371 attend behind Mallah Halal Meat store and two men were seen to exit from the rear of the store. The back hatch of the GMC Yukon was opened, and three items were observed in the back of the GMC Yukon that were consistent in shape, size and colour of the blue Al Fakher shisha tobacco cases. One of the cases was placed in Ali Mallah’s Toyota Highlander and it drove away. The affiant gave further viva voce evidence concerning his experience with Al Fakher products from previous investigations.
125On November 28, 2016, the black GMC Yukon was observed but police were not able to obtain the plate number. However, they were able to see that the driver was the same male driver who operated a black GMC Yukon with the plate number BZKN 371 that attended on November 23, 2016. It reversed into the alley behind the Mallah Halal meat store. The male driver of the black GMC Yukon opened the hatch of the black GMC Yukon and the hatch of Ali Mallah's grey Toyota Highlander. The male driver then shut both hatches and walked into the rear entrance of the meat store. The male driver of the black GMC Yukon and another male exited the meat store. The male driver of the black GMC Yukon was carrying a cardboard box and placed it inside the black GMC Yukon and drove away. The officers were able to determine from watching the surveillance video that Mr. Omarbach drove the GMC Yukon on November 23 and November 28; and that Mr. Suliman was the passenger.
ii) Description of boxes resembling Al Fakher Shisha tobacco
126Another issue dealing with the paragraphs describing the surveillance in November 2016 was that the affiant stated in one sentence that the items observed in the GMC Yukon were consistent in shape, size, and color of blue with Al Fakher shisha tobacco cases; then in the following sentence wrote that Al Fakher Shisha tobacco cases were moved by the individual from the black GMC Yukon and placed in Mr. Mallah’s vehicle.61 The officer who did the actual surveillance only said that the boxes looked similar to Al Fakher shisha tobacco.62 I am of the view that this paragraph could have been drafted more clearly. I would make the following correction to the sentence: that a box of what appeared to be similar in size, shape and colour of Al Fakher shisha tobacco was placed in Mr. Mallah’s vehicle.63
iii) Is a link established between Mr. Omarbach and the black GMC Yukon SUV seen in November 2016
127Ms. Lafond submitted that there was no link established between Mr. Omarbach and the black GMC Yukon seen at Mallah Halal Meats during the surveillance in November 2016.
128While the errors in the ITO are troublesome. I agree with the Crown that there are still enough grounds from the surveillance to suggest that the black GMC Yukon was the same one observed on November 16, 23, and 28. The other relevant grounds include that:
a) It was the same make and colour of vehicle used on the other two surveillance dates (i.e., a black GMC Yukon), which involved the same location and were within the same couple weeks (i.e., on November 16 and 28, 2016);
b) It was same male who was also observed in relation to the vehicle on the November 28, 2016 surveillance date (i.e., as noted in ITOs #1 to 10; see for example, para. 54 of ITO #1);
c) Messrs. Omarbach and/or Suliman were identified in the video surveillance from all three dates (i.e., starting at ITO #13; see for example, paras. 33-35 of ITO #13);
d) It was the same activity that was observed on the November 28th surveillance date (i.e., moving a case or box between the black GMC Yukon and Ali Mallah's Toyota Highlander);
e) And a previous production order confirmed that Mr. Omarbach, along with Mr Suliman's partner (i.e., Hiba Hellail) as a secondary driver, had in fact rented the same make and model of vehicle with that licence plate for the period of time spanning November 23 and 28, 2016.64
iv) Was there evidence to infer that contraband tobacco was observed during the November 23, 2016 surveillance?
129The Applicants submitted that the inference that contraband tobacco was observed at Mallah Halal Meats on November 23, 2016 was not reasonable. Police observed a box being moved from a vehicle being driven by Mr. Omarbach. The affiant stated that this box was very similar in appearance to Al Fakher Shisha tobacco. This officer has had previous experience in cases where a significant amount of Al Fakher shisha tobacco was seized. While this one brief observation may not have been enough to conclude that Mr. Omarbach was involved in trafficking with Messrs. Mallah and Ibrahim, the officers also had the information they received from the CIs and cell phone transmissions connecting the parties. In addition, various other persons attended and participated in the same type of activity.65 When Ali Mallah and Hussam Ibrahim were arrested in March of 2017, hundreds of kilograms of contraband shisha tobacco were seized as a result of those searches in relation to the same targets.66
130After the above deletions and amplification are made in the ITOs concerning the surveillance in November 2016, the remaining grounds still support the affiant’s belief that Mr. Omarbach attended Mallah Halal Meats at the relevant time and appeared to be trafficking contraband shisha tobacco on one of those dates.
Ownership of the Dark Coloured Honda
131Ms. Lafond submits that the affiant misled the issuing justice with respect to the ownership of a brown Honda CRV.
132The affiant stated in a number of ITOs that he confirmed information provided by CI4 that Ishan Jaradat (aka Suliman) drives a "dark color Honda CRV". The affiant advised he conducted a search through the Ministry of Transportation (MTO) and learned that Ihsan Jaradat (aka Suliman) owns a licence plated brown 2011 Honda CRV.67 In fact this vehicle was not registered to Mr. Suliman but to his wife. This error was not corrected until ITO #8 I would agree that the affiant should have made it clear that this error was made in previous ITOs. I will excise the paragraph in each ITO where it appears.
133Mr. Morin advised that there was a reason for the misinformation, and he wanted to recall the affiant to provide his explanation, however, I did not allow Mr. Morin to do as we were already well into the submissions. The time for examining the affiant had passed, in addition the Crown had been in possession of Ms. Lafond's written submissions on this issue for some time.
134It is Ms. Lafond’s position that the fact that this error with respect to the ownership of the Honda was treated as having no significance, highlighted the pattern of laxity that pervaded the process leading to the issuance of the warrant.
135Mr. Morin argued that to rely on this inconsistency counsel should have cross-examined on this issue to comply with the rule in Browne and Dunn.68 Mr. Morin submits that if this had been done, the affiant would have been able to explain the inconsistency, including the information that he relied on, the date of that information, and whether Mr. Suliman may have in fact changed ownership from his name to that of his partner and when.
136The Crown referred me to subsequent ITOs that do corroborate what the CI4 had said about the Honda. In paragraph 98 of ITO #8, for example, the paragraph reads:
During my conversation with Confidential Informant "4" in May 2017 (Paragraph number 1 of Appendix "E"), I was advised that lhsan JARADAT drives a "dark color Honda CRV." I conducted a search on MTO and learned that lhsan JARADAT does not have a Honda CRV registered in his name. However, an MTO check on Hiba HELLAIL documents that she owns a brown 2011 Honda CRV. As stated in the above paragraphs, a female named Hiba HELLAIL was listed as the secondary driver of the black GMC Yukon that was rented by Muhamad OMARBACH in November 2016. I have communicated with Detective Constable Matthew O'CONNELL, who advised me that Ihsan JARADAT and Hiba HELLAIL were listed as "partners" in a Peel Regional Police Service Domestic Report that he had read.
137Although what the affiant wrote was incorrect it was corrected in subsequent ITOs. It was established that Mr. Jaradat's (Suliman) partner, Hiba Hellail, did own a brown coloured 2011 Honda CRV. Regardless, the incorrect information needs to be excised and I will excise from ITOs #1 to #7 the reference to the police confirming Mr. Suliman was the registered owner. Excision of the reference to the ownership of the brown Honda would not have resulted in the authorizations being set aside as the affiant still had sufficient grounds for the authorizations to issue.
Exculpatory Information was Disregarded by the Affiant
138In March 2017, a warrant to search was executed at Mallah Halal Meat, located in Scarborough, Ontario, the same location where the affiant stated police had observed the Applicants moving boxes similar to Al Fakher shisha tobacco boxes in November 2016. The appendix attached to the warrant to search documented that the shisha products located and seized during this warrant to search did not contain tobacco. The relevant paragraph used in several of the ITOs was the following:69
On the 20th day of March 2017, members of the Ontario Provincial Police, Organized Crime Enforcement Bureau, executed a Warrant to Search on Mallah Halal Meats, located at 1961 Lawrence Avenue East, Scarborough, Ontario; which was associated to Ali MALLAR. Subsequent to the search, investigators located and seized various contraband tobacco and shisha products labeled "nontobacco."
139Contrary to the statement of the affiant, there was no "various contraband tobacco" seized at that location. The investigation was based on a belief that the parties were trafficking in shisha tobacco and as a result it is very relevant whether shisha tobacco was seized. However, the shisha products seized and located were tobacco-free. I would agree that it was misleading for the affiant to state only that various contraband tobacco were seized. The results of the warrant to search documented that the products seized were: 1 case of unstamped cigarettes; 16 boxes of Marina non-tobacco nicotine; 1 case containing 10 packs. 74 jars of Laziz Shisha, which is a premium herbal shisha brand specializing in providing tobacco-free shisha; 14 tins of non-tobacco molasses Al Fakher; 2 empty boxes of Al Fakher; 9 cases of Al Fakher Green Trading Co and 53 x 250 grams containers of Al Fakher non-tobacco molasses.70
140In addition, rather than saying that no shisha contraband tobacco products were found, the police chose to put in quotations "non-tobacco”. By putting the word non-tobacco in quotations it had the potential to make the reader believe that this was not the case in fact, but rather this is how the box was labelled.
141The affiant made it clear in all ITOs that he believed Mr. Omarbach was trafficking in contraband shisha tobacco and further that he believed he observed Mr. Omarbach in November 2016 bringing contraband tobacco to Mallah Halal Meats. While the affiant did not provide incorrect information about what was found as a result of the Mallah and Ibrahim search warrant, the relevant paragraphs were misleading.
142The Crown argues that while the affiant should have been more explicit in his description of what was seized, on the same day police executed search warrants at three other locations where a substantial amount of contraband shisha tobacco was found in connection with Messrs. Mallah and Ibrahim.71 However, Mr. Omarbach’s connection was that he was seen at Mallah Halal Meats and not at these other locations.
143The misleading paragraph is not insignificant since the authorizations are based on the information provided by the CIs that the product to be trafficked by the accused is contraband shisha tobacco. Further it appeared in eleven ITOs.
144The police should have made it clear that contraband shisha tobacco was not uncovered after a search warrant at Mallah Halal Meats. Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. When a police officer seeks an ex parte authorization, he or she must be particularly careful not to "pick and choose" among the relevant facts to achieve the desired outcome. Indeed, the informant's obligation is to present all material facts, favorable or not. The affiant has the duty to avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.72 As Doherty J.A. found in R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (Ont. C.A.), at p. 751, "[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable.”
145I will therefore excise “investigators located and seized various contraband tobacco and shisha products labeled "nontobacco" and replace it with the following: “no contraband tobacco shisha was located at the Mallah Halal Meats on March 20, 2017.” This omission alone does not warrant setting aside the authorizations which contained this misleading reference. There still remained sufficient grounds for the issuance of the authorizations.
Failure to report that Mr. Omarbach had No Prior Record
146Ms. Lafond argues that the affiant misled the court by omitting the fact that Mr. Omarbach had never previously been convicted of the offence for which he was under investigation. I agree with the Crown that the issuing justice could not have been mislead by the fact that the affiant did not state that Mr. Omarbach had no prior related record. The absence of a reference to something not seen, not heard, or not done, will lead to the sensible inference that whatever it is was not seen, not heard, or not done.73
DID THE AFFIANT SUBVERT THE PRE-AUTHORIZATION PROCESS
147The Applicants submit that the affiant attempted to mislead the issuing justices/judge and in the result subverted the pre-authorization process.
148Where an affiant officer's failure to make full and frank disclosure is egregious enough to subvert the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation, or the like, a court has the residual discretion to set aside the search warrant, even if there would have been reasonable and probable grounds, had there been a full and frank presentation of the information.74 In order to find subversion, the reviewing judge must find that the conduct undermined, corrupted, weakened, destroyed or disrupted the process. The Court of Appeal has described it as conduct amounting to the level of an abuse of process.75
149The Applicants argued that there were many instances where the affiant attempted to mislead the presiding justice/judge. All of these allegations were addressed above. Many of the claims of misrepresentations arose from the surveillance in November 2016 and the inaccurate reporting of it. Just to recap the inaccuracies included the following: claiming a plate number for Mr. Omarbach’s SUV was observed on all occasions; failing to mention the poor quality of the surveillance video; stating boxes of Al Fakher were observed when surveillance officers only reported seeing boxes that were similar in size, shape and colour; stating that the Ministry of Transportation confirmed that Mr. Suliman was the registered owner to a brown Honda when in fact he was not. With respect to these errors, it appears that the affiant incorrectly paraphrased notes from his investigating officers and did not deliberately attempt to mislead a justice. However, every effort must be made by police to summarize accurately the fruits of an investigation. It is not acceptable that an affiant simply tries to get the gist of what was in police officer’s notes, an affiant must always endeavor to include accurate details in the ITOs he or she writes. An issuing justice relies on police to act with integrity during the ex parte process.
150There were two areas where misrepresentations were made in the ITOs which appeared to be deliberate. The first was that the police failed to state in clear terms that no contraband shisha tobacco was seized at Mallah Halal Meats; and the second misrepresentation was found in the ITOs for the general warrants, where the affiant essentially wrote that the main purpose for obtaining the warrants was to confirm for certain that the Applicants were trafficking in contraband Shisha tobacco versus herbal shisha tobacco. As discussed in greater detail above, the primary purpose for the general warrants was to determine the scope of the trafficking operation.
151After a careful review of these errors and stepping back and looking at the amount of investigation that was covered in the ITOs and the fact that the affiant was fair and balanced for the most part in his reporting of the investigation, I find that most of the errors were not intentional and those of concern would not in my view have changed the outcome of the issuing justice’s decision. I do not find that the errors rise to being so egregious as to support a finding that the affiant attempted to subvert the warrant process.
Syndrome of Lassitude
152It is Ms. Lafond’s position that the number and significance of the errors made by police reveal an attitude of lassitude. She submitted that this carefree attitude is further evidenced by the affiant’s following comments concerning an informant’s criminal record:
while having a criminal record does influence my opinion of a person's reliability as an informant; in my experience, a criminal record is a stronger indication of unreliability when the convictions are for crimes of dishonesty.76
153Police are expected to corroborate the information provided by confidential informants. Accepting information without skepticism or attempts to verify it has been described as a syndrome of lassitude, which is the product of a casual attitude toward a police officer's duty regarding an ex parte application.77
154Ms. Lafond relied on Sutherland in which the affiant could not say what the criminal record was of the informant and testified he did not consider it relevant. A criminal record is an important factor to consider when assessing the credibility of an informant. In Sutherland the police had made other errors which included putting the wrong criminal record for the appellant in the ITO. The Court found that the fact that the record was treated as having no significance [did] highlight the “pattern of laxity that pervaded the process leading to the issue of this warrant”.78
155I am of the view that the affiant’s statement about criminal records, alone, does not demonstrate a casual attitude toward the ex parte process. The officer is entitled to give his opinion with respect to the criminal record of an informant, the issuing justice had a summary of the record for each CI and was free to conclude otherwise. When the record does not involve a significant crime of dishonesty it would not alone, negate the value of the information provided. The issue of a criminal record is to be considered along with other factors. Informants usually acquire their information through association with individuals involved in criminal activity. It is therefore not surprising that informants often have a criminal record or engage in criminal activities.79
156The Applicant also argued that the affiant misrepresented the criminal records of the informants. The appendices of the ITOs outlined the criminal records of the CIs, including whether the convictions were for offences involving dishonesty. I find that the justices/judges who granted the authorizations could not have been misled.
THE VALIDITY OF THE PRODUCTION ORDER FROM DECEMBER 28, 2016
157Mr. Omarbach became a target of the police because of the production ordered granted on December 28, 2016. This production order was issued during the investigation of Messrs. Mallah and Ibrahim. This authorization had already been obtained prior to the first ITO for the matter before the Court. At the conclusion of the Mallah investigation significant amounts of shisha tobacco had ultimately been seized. As a result of the December 28, 2016 production order and further police investigation, it was established that Mr. Omarbach was renting the vehicle in question. In addition, the inferences linking Messrs. Omarbach and Suliman to tobacco trafficking with Ali Mallah and Hussam Ibrahim had to some extent been confirmed.
158It is Ms. Lafond's submission that the December 28, 2016 order should not have been granted since there was nothing to support the fact that the dark coloured SUV seen on November 23 and 28, 2016 was the GMC Yukon bearing licence plate BZKN 371, rented by Mr. Omarbach.
159It is Mr. Morin’s position that the grounds in the December 28, 2016 ITO are more extensive and stronger than those in the ITOs at issue in the current matter. The grounds in the December 28, 2016 ITO detail how the licence plate number BZKN 371 was observed on all three surveillance dates (i.e., November 16, 23, and 28, 2016), as opposed to only on the latter two dates as stated in the ITOs for the current matter.
160In addition, the grounds in the December 28, 2016 ITO detail how items consistent with being cases of Al Fakher shisha tobacco were observed on all three dates, as opposed to only the November 23, 2016 date as set out in the ITOs in the current matter.
161I have not seen the unredacted ITO so I cannot make an assessment of that ITO, nor in the circumstances am I convinced I would have jurisdiction to do so. However, based on a review of the redacted ITO, I would agree with Mr. Morin’s position that the grounds for the December 28, 2016 production order provide no basis to displace the presumed validity of that authorization.80
Reasonable Grounds to Suspect
162The majority of the thirty-one authorizations required reasonable grounds to believe versus reasonable grounds to suspect. There can be no argument that the police from the outset had enough information to form reasonable grounds to suspect that Mr. Omarbach was involved in trafficking contraband tobacco. The following is a summary of the law with respect to reasonable suspicion.
163While reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime.81
164"Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.82
165Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favorable and unfavorable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion.83 The suspicion held by the police cannot be so broad that it descends to the level of generalized suspicion, which was described by Bastarache J., at para. 151 of M. (A.), 2008 SCC 19 as suspicion "that attaches to a particular activity or location rather than to a specific person".
166The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience.84 A police officer's grounds for reasonable suspicion cannot be assessed in isolation.85
167Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. The reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.86 It is not required that the evidence must itself consist of unlawful behaviour or must necessarily be evidence of a specific known criminal act.87
168A number of the authorizations required the lesser standard of reasonable suspicion.88 In each of these authorizations I find that reasonable suspicion could be found in the information the police obtained from the CIs, and the police investigation, particularly given the corroboration that was obtained.
SURVEILLANCE AND LACK OF IT
169Ms. Lafond submits that a number of ITOs should not have resulted in authorizations because none of the surveillance of the Applicants between May 2017 and December 2017 provided direct evidence that they were engaged in trafficking contraband tobacco.
170Surveillance during November 2016 from the Mallah investigation fortuitously provided police with evidence that Mr. Omarbach and Mr. Suliman may have been trafficking. For the present investigation surveillance took place on a number of dates during the first six months, but it did not produce cogent evidence against the Applicants.89
171Mr. Morin agrees that there were no direct observations of the accused engaging in tobacco trafficking between May and December 2017, however he submits that there was an abundance of circumstantial evidence that police gathered during that time period.
172Although I was not provided with police officers’ notes, based on the ITOs, it appears that limited surveillance was attempted of Messrs. Omarbach and Suliman during May 2017 to December 2017. While the Crown argues this is insignificant in terms of the larger picture of what evidence the police had collected, I am uncertain why police did not do more surveillance during this time. It may be they wanted to wait until they had obtained a tracking warrant. Once they had the tracking warrant, they were able to determine that Mr. Suliman’s vehicle was attending Storage City on a frequent basis and thereafter attending lounges that sold shisha. The affiant subsequently obtained production orders from Storage City to see if they could determine which unit the Applicants rented.90 After determining which unit the Applicants were connected to, a second production order was obtained which included requests for storage lease agreements for specific units and surveillance videos.91
173Surveillance began in earnest in March 2018. Both police surveillance and video surveillance provided reasonable grounds that the Applicants were trafficking in shisha tobacco. Police made numerous direct observations of Messrs. Omarbach and Suliman handling, storing, and transporting what they believed to be contraband tobacco.92 Relevant observations included the following. The Applicants were seen at the storage facilities to be unloading and loading boxes of suspected shisha contraband.93 The men were also observed to be unloading numerous cases of suspected Al Fakher shisha tobacco to a white pickup truck and seen going into the storage unit with a truck and then to 6535 Millcreek Drive. Mr. Omarbach was seen using a motorized forklift to remove two skids containing cases of suspected Al Fakher shisha tobacco from the white truck and place it within unit 6 of 6535 Millcreek. As a result of surveillance, the Millcreek address also became the subject of a search warrant.
Additional Issues
174The following issues raised by Ms. Lafond can be addressed without extensive reasons.
Use of the Term to Assist
175The Applicant takes issue with ITOs #13, #14 and #15 for using the term "assist" in regard to information from the related authorizations being used to identify storage locations or the timing of shipments. The ITOs, however, are in relation to authorizations under sections 492.1(1), 492.1(2) and 492.2(1) of the Code. Those sections specifically require that the authorization "will assist in the investigation of the offence".
Contradictions
176It was suggested that there are contradictions in some of the CI information; however, only one example of a contradiction was provided. CI1 and CI2 provided different information concerning a detail about Mr. Omarbach's personal life.
Identification of Mr. Omarbach
177Ms. Lafond’s submitted that the affiant conducted a suggestive identification procedure in circumstances where there was a real risk that the confidential informants told the officers what they wanted to hear and did not actually identify Mr. Omarbach. Ms. Lafond reasoned that if a CI is giving information only to avoid criminal responsibility for his/her own charges, real credibility concerns arise if the CIs were only shown one photograph by the police as opposed to a proper line-up.
178For most CIs, the police showed a single picture of Mr. Omarbach and asked if this was the man they were speaking about. In cross-examination the affiant advised he showed CIs 3 and 4 a MTO driver’s licence photo of Mr. Omarbach. This information was not in the ITO. All that was before the authorizing justices was that a photo was presented. The affiant did not know which photo the handler showed CI1.
179I agree with Mr. Morin that this was not a situation where the CIs were asked to identify a suspect of a crime in circumstances where they had no familiarity with the suspect prior to the crime. Each CI provided significant detailed first-hand information about Mr. Omarbach's personal characteristics and his tobacco business. In these circumstances where there was corroboration of their information, I do not find that the photo identification procedure used affected the affiant's grounds. This is not a case of mistaken identity. Certainly, in an appropriate case a proper photo-lineup should be conducted.94
180The Applicant also took issue with the CI's identification of Mr. Omarbach by the name of "Abu Omar” or by “Omar”. Given the information provided by the CIs in the ITOs about Mr. Omarbach, the fact that the CIs knew Mr. Omarbach by this nickname does not detract from the fact that the CIs were providing information about the same person that the police were investigating.
Use of Ambiguous and Confusing Language that would Mislead
181Ms. Lafond referred to the following sentence which appeared to be confusing: "Based on the totality of circumstances, I have no reason to believe the information provided by Confidential Informant……”:95 The paragraphs in question actually read: “Based on the totality of circumstances, I have no reason not to believe the information provided by….” (bolding of text added). As quoted correctly, this is not an ambiguous or confusing phrase.
Link to a Criminal Organization
182Ms. Lafond believed that the affiant insinuated that Mr. Omarbach was connected with criminal organizations. Mr. Morin submits that the only reference to "criminal organization" is that the "Organized Crime Enforcement Bureau", was the OPP entity that carried out some of the investigative steps. However, there are other references to “criminal organization”, for example in ITO #22 , para. 13(a), the affiant wrote:
The investigative plan is to uncover the full operational and financial scope of this alleged criminal organization involved in the trafficking of contraband tobacco and related proceeds of crime offences. [emphasis added]
183I do not believe that the affiant was maintaining that the Applicants had ties to criminal organizations in the traditional sense; rather he was referring to his belief that the Applicants had various persons working with them in carrying out their business of trafficking contraband tobacco.
Was the Rule Against Narrative Violated
184Ms. Lafond suggests that the affiant violated the rule against narrative by providing unsourced facts. The Applicant, however, does not point to any example of where any facts in any of the ITOs are unsourced.
Inappropriate Use of Boilerplate Language
185Although Ms. Lafond submitted that the affiant inappropriately used boilerplate language, she did not point to any examples where this occurred. However, I did note as in most ITOs they were used. While boilerplate language is to be avoided it would not lead to the need for excision unless it was misleading or stood alone without regard to the facts of a particular case. Reliance upon ritualistic phrases without regard to the facts of the particular case may make it more difficult for a judge to isolate and assess an affiant’s grounds.96 I did not find in paragraphs where boilerplate language was used that it was misleading.
The ITOs do not make out Investigative Necessity
186Ms. Lafond submitted that investigative necessity was not established by the affiant. Mr. Morin takes the position that this is not a requirement for the warrants. However, the Supreme Court does indicate in Araujo that investigative necessity is important for police to demonstrate when seeking a warrant to search.97 No examples were provided by counsel where police could have obtained certain information without relying on production orders or other authorizations.
No Links to the Mallah Investigation
187In regard to ITO #s 1, 3, 4 and 5, Ms. Lafond submits that there are insufficient grounds to link Mr Omarbach's phone number to the Mallah investigation. In all 4 ITOs there are several grounds linking Mr. Omarbach to Messrs. Mallah and Ibrahim.98 This would include that Mr. Omarbach was seen at Mallah Meats back in November 2016 on three occasions and on one of those occasions, appearing to drop off a case of contraband tobacco. The grounds were obtained by observations by police, information from four CIs, online research, and information obtained from judicial authorizations. Grounds linking Mr. Omarbach’s phone number to Ali Mallah and Mr. Ibrahim are found in paragraphs 72 to 104 of ITO #5. CIs provided police with phone numbers for Mr. Omarbach. After reviewing the data transmission police determined that these numbers had some communication with both Mr. Mallah and Mr. Ibrahim. One number provided by a CI was obtained with an alias. Other names were provided by the CIs to be involved in this network and those persons’ numbers showed up on the phone records of Mr. Mallah and Mr. Ibrahim as well.
No link to prepaid phone numbers99
188Regarding ITO #8, Ms. Lafond incorrectly suggested that the affiant admits that the phone numbers ending in 1142 and 1152 do not belong to Mr. Omarbach. In paragraph 123 of ITO #8, the affiant only stated that the transmission data for the two numbers ended on certain dates and therefore the affiant believed that Mr. Omarbach was no longer using the numbers.
Link to Mr. Hanoura in ITO #8
189In ITO #8, Ms. Lafond suggests that the affiant did not sufficiently link Mr. Omarbach to Yasser Hanoura in regard to tobacco trafficking. ITO #8, however, does not mention a Mr. Yasser Hanoura. Mr. Hanoura was mentioned in ITO #30. In that ITO a link was established in part through surveillance.
ITO #9, Mr. El Daoud is not relevant
190In regard to ITO #9, Ms. Lafond suggests that Mr. El Daoud is not relevant. A closer look at that ITO reveals that specific information was provided by CI2 and CI4 which provided grounds that Mr. El Daoud was involved in the trafficking with Mr. Omarbach.100 The affiant also noted that Mr. El Daoud runs an import/export business that involves shisha-related products from Jordan (e.g., hookahs). In addition, personal details about Mr. El Daoud were provided.101
ITO #10, Phone numbers linking the accused to other parties
191In regard to ITO #10, Ms. Lafond suggests that links to phone numbers belonging to Mr. Amer Saylgh, Mohamad Salad and Ziad Boutari are not relevant. The affiant explains that those individuals were believed to be contraband tobacco traffickers and were associated with Mr. Omarbach through phone transmission data.102 While CI5 did not mention Mr. Omarbach, the names he did mention which included some of the men above, had phone transmissions with a number believed to be used by Mr. Omarbach. This is relevant to the totality of the grounds concerning Mr. Omarbach's alleged tobacco trafficking activities.
ITO #10, Paragraph 120 - use of language “seem”, “appeared to be”
192Regarding ITO #10, Ms. Lafond also takes issue with the affiant's use of the word "seem" when describing bags allegedly containing tobacco being handled by Mr. Boutari. The affiant, however, does not use the word "seem” in ITO #10, rather he uses the phrase "appeared to be" when describing such observations (i.e., para 120). Police would not know for certain what the items at issue were without seizing and confirming their nature. The affiant was being fair and measured by using such language. While the affiant and his colleagues had experience in tobacco investigations and were qualified to make inferences about what the product was, for the most part they used conservative language when describing their observations. I was never told, however, how Al Fakher herbal Shisha was packaged and how it differed from how Al Fakher tobacco shisha was packaged.
193Certainty is not required as a basis for reasonable grounds.103
Did the affiant establish a link between Mr. Omarbach and Mr. Hanoura
194In regard to ITO #s 13, 14 and 15, counsel to Mr. Omarbach takes issue with whether "three" phone communications between Messrs. Omarbach and Hanoura (who was believed to be a tobacco trafficker) were confirmed. Those ITOs, however, explain that data transmission information obtained through a judicial authorization showed that it was not just "three" phone calls, but 301 calls between Mr. Hanoura and a pre-paid phone number believed to be used by Mr. Omarbach.104 Given the number of calls and the analysis done by police, a link between these two individuals was established. In addition, there were various ground to support the phone number at issue (i.e., ending in 1142) as belonging to Mr. Omarbach.105
Link to Mazaj Lounge
195In regard to ITO #s 13, 14 and 15, Ms. Lafond also suggests that no conclusions came out of police monitoring of the Mazaj Lounge. This was a location which a CI said was one of Mr. Omarbach's largest shisha customers. While this may be true, the police did observe Mr. Omarbach in the parking lot and near the loading dock of that lounge.106
ITO # 17 Gloria Igbinomwankhia and number 8494
196With respect to ITO #17, Ms. Lafond suggests that a phone number ending in 8494 belongs to a Gloria Igbinomwankhia and is not related to Mr. Omarbach. Police investigation, however, revealed that that phone number was associated with a storage unit believed to be rented by Mr. Omarbach and containing contraband tobacco.107 CI information also linked Mr. Omarbach to that phone number.108 As was seen from this investigation there was an effort made by the parties using these numbers to distance themselves from the cell numbers by using fictitious names and addresses.
ITO #18 Black SUV versus Black GMC Yukon
197In regard to ITO #18, Ms. Lafond suggests that the employee of Storage City did not correctly identify Mr. Omarbach (using an alias of Adam Swarski) because he believed Mr. Omarbach drove a black GMC SUV as opposed to a black GMC Yukon.109 As explained in paragraph 151 of ITO #18, a GMC Yukon is an SUV. The employee observation that Mr. Swarski (Mr. Omarbach using an alias) drove a black GMC SUV is consistent with the police observations of Mr. Omarbach driving a black GMC Yukon during his previous dealings with Ali Mallah and Hussam Ibrahim.110
Police Reports
198Ms. Lafond submits that the ITOs were incorrect because they referred to “Police reports officer's notes and this investigation" to state that he has grounds to believe. Counsel argued that the only report that the affiant referred to are the surveillance reports of PC Matthew O'Connell regarding the surveillance conducted on Mallah Halal Meat Store in November 2016. I would disagree, there is also the report from the civilian who analyzed the phone records and cell towers.
Did the Video Surveillance prove unequivocally Trafficking
199Ms. Lafond correctly pointed out that the affiant stated that the video surveillance evidence does not unequivocally show tobacco trafficking.111 Various paragraphs in the ITOs describe video surveillance where "suspected" or what "appeared to be" cases of illicit tobacco products were being possessed, distributed, or transported by Mr. Omarbach and/or Mr. Suliman. Only in paragraph 181 of ITO #30 was there language used to suggest that the product at issue was unequivocally illicit tobacco.
200Certainty about an illicit substance is not required to obtain an authorization, what is required is that the police had reasonable and probable grounds. I would agree with Mr. Morin that the affiant was being fair and measured by describing the items observed to be “suspected” or “what appeared to be” tobacco. The affiant had experience in tobacco investigations and relied upon his knowledge of what boxes of Al Fakher Shisha tobacco looked like. In addition, this is in the context of five informants advising that Mr. Omarbach was trafficking in contraband shisha tobacco.
Collusion
201Counsel to Mr. Omarbach suggests that there may have been collusion among the CIs. Although five of the six CIs advised that Mr. Omarbach was trafficking, the details they provided were different in nature and with respect to the details. While all but one CI was entrenched in the contraband tobacco subculture, I cannot find that there is any evidence to suggest there was collusion between the CIs. Even if any of the CIs had such a motive, the ITO is to be assessed on what the affiant knew at the time and there is no information to suggest that the affiant was aware there was collusion.
CONCLUSION
202In reviewing the ITOs I assessed each one as a whole and considered the cumulative result of the grounds contained in each ITO. Progressively with each ITO the affiant obtained additional grounds for the general warrants and ultimately the search warrants. Each authorization provided police with further corroboration of information provided by the CIs. The authorizations eventually resulted in police obtaining tracking warrants which led them to the storage units. Production orders for the storage units then led to further corroboration that the Applicants were using specific storage units. Police surveillance at this point in time, then provided even further corroboration of the CI claims that the Applicants were trafficking in shisha tobacco.
203All but one CI provided compelling information, some were more compelling than others. Most importantly, a significant amount of the material grounds provided by the CIs were substantially corroborated. When the overall degree of credibility, compelling nature and corroboration of the information provided are considered in totality for each CI, as well as between them, there is no reason to exclude any of the CI information. However, I did not put much weight on the information provided by CI1. The affiant had reasonable grounds to believe that Mr. Omarbach and Mr. Suliman were trafficking. These grounds were strong and were confirmed in varying degrees; the corroboration on the whole was substantial.
204By the time the affiant applied for the general warrants, police had compelling, reliable and corroborated grounds that Mr. Omarbach and Mr. Suliman were trafficking in shisha tobacco and were storing the contraband at particular storage locations and in specific units.
205After the general warrants were executed, there was of course confirmation that Mr. Omarbach and Mr. Suliman were storing shisha tobacco in the two storage locations and at the Millcreek drove location. Through the general warrants police surreptitiously went into the specific units at two separate locations and located contraband shisha tobacco.
206The affiant built his reasonable and probable grounds for the search warrants which were executed on April 17, 2018 over time with the previous authorizations. Even without the general warrants, the ITO for the search warrants established sufficient grounds.
207Despite the Applicants’ prodigious approach, particularly Ms. Lafond, to leaving no stone unturned with respect to the sub-facial and facial challenge on each ITO and authorization, I am of the view that there was sufficient credible and reliable evidence to permit a justice/judge to find reasonable and probable grounds to believe that Messrs. Omarbach and Suliman were trafficking in shisha tobacco with respect to each ITO. Ultimately the requisite grounds were established to support that the Applicants were storing the contraband tobacco at the storage units and the Millcreek location as was set out in the ITOs for the search warrants. Reasonable grounds do not require proof on the balance of probabilities, much less “proof beyond a reasonable doubt”. In the case before me the affiant had this and more.
208After a careful review of each ITO in their entirety, I am satisfied that each authorization was properly issued and therefore no s. 8 Charter violation has been established.
209Given I have found that there was no s. 8 Charter breach, I will not proceed to a s. 24(2) Charter analysis.
Released: June 1, 2022
Signed: Justice A.R. Mackay
APPENDIX A
Crown’s Summary of Corroboration as Outlined in ITO #30
The CI information and accompanying corroboration in ITO #30 are outlined below. As discussed previously, where information is redacted in the ITO, the corresponding judicial summaries are relied on.
a) In July 2014 and August 2015, CI1 said that a man named “Omar” was trafficking in contraband tobacco. In August 2015, CI1 corroborated “Omar” as Omarbach, by identifying him in a picture. See paragraphs 43-44 of ITO #30.
b) In November 2016, CI2 said that Hussam Ibrahim and a man named “Abu OMAR” were trafficking contraband tobacco. Between November 16, 2016 and November 28, 2016, Omarbach was observed by the police engaging in trafficking contraband tobacco with Hussam Ibrahim and Ali Mallah and his telephone number was also linked to Ali Mallah. On March 20, 2017, Ali Mallah and Hussam Ibrahim were arrested and charged with trafficking contraband tobacco, and large quantities were seized. See paragraphs 45-63, 70 of ITO #30.
c) In May 2017, CI3 said that a man named "Abu OMAR,” Hussam Ibrahim and a man named “Feras” were trafficking contraband tobacco and that Feras works with Abu Omar. Through an open source search, the police confirmed that Feras was known to be involved with tobacco trafficking. Feras was later linked to Hussam Ibrahim though phone transmission data. See paragraphs 64-68 of ITO #30.
d) CI’s 2 and 3 independently corroborated information about Abu Omar being involved with shisha tobacco trafficking by providing details about a certain shisha tobacco transaction between Abu Omar and Hussam Ibrahim. CI’s 2 and 3, however, differed about a certain detail of what happened after the transaction. See paragraph 67 of ITO #30.
e) In May 2017, CI3 said that a man named “Abu Omar” was trafficking contraband tobacco. The CI was shown a picture of Omarbach, who confirmed it was Abu Omar. CI 3 also said that Omar’s telephone number was 647-771-1142 “or” 647-771-1152. Transmission data between Ali Mallah’s cellular telephone and telephone numbers 647- 771-1142 and 647-771-1152 were obtained. These numbers were confirmed to be prepaid phones so were not traceable to any person. See paragraphs 69-74 of ITO #30.
f) In July 2014, CI1 said that Omarbach’s cellular telephone number was 416-939-2229. Transmission data confirmed that there were phone calls between that number and Ali Mallah’s phone. That number was later linked to Omarbach. See paragraphs 75-76 of ITO #30.
g) In December 2016, CI2 said that a man named Ahmad Daoud and a man named “Abu OMAR” were trafficking contraband tobacco. Daoud’s phone number was linked to Ali Mallah through transmission data. Transmission data also showed a link between Omarbach and Daoud. See paragraphs 77-78 of ITO #30.
h) In May 2017, CI4 said that a man named “Abu OMAR’ and a man named Ihsan Jaradat (aka Ihsan Suliman) were trafficking contraband tobacco. CI4 was shown a picture of Omarbach and identified him as Abu Omar. See paragraph 79 of ITO #30.
i) In May 2017, CI4 said that Ihsan Jaradat (aka Ihsan Suliman) “runs Abu OMAR's tobacco business.” Transmission data confirmed transmissions between Ali Mallah’s cellular telephone, Hussam Ibrahim’s cellular telephone and a telephone number registered to a man named Ihsan Jaradat (647-466-3314). There were also three hundred and fifteen (315) transmissions between Ihsan Jaradat’s (aka Ihsan Suliman) telephone number and 416-939-2229, which was a phone number of a business linked to Omarbach. There were also transmissions between 647-771-1152 (a prepaid telephone believed to be owned by Omarbach) and number 647-466-3314 (i.e., linked to Ishan Suliman). It was thought that Mr Omarbach was using 647-771-1142 and Ihsan Suliman (aka Ihsan Jaradat) was using 647-771-1152. Transmission data showed one thousand and thirty-five (1035) transmissions between number 647-771- 1152 and telephone number 647-771-1142. There were also one hundred and fifteen (115) transmissions between telephone number 647-771-1142 and telephone number 416-897-3776, which was linked to a known tobacco trafficker. There was also transmission data between 647-771-1142 and telephone number 647-624-5256, belonging to Hanoura Yaser, a known tobacco trafficker. See paragraphs 80-93 of ITO #30.
j) In May 2017 CI4 said that Ihsan Jaradat (aka Ihsan Suliman) drives a “dark color Honda CRV.” The police later confirmed that Hiba Hellail, who was a partner of Suliman, was registered to such a car. Hiba Hellail was also registered to the car being used when Omarbach was observed in November 2016 engaged in trafficking with Ali Mallah and Hussam Ibrahim. See paragraph 83 of ITO #30.
k) In May 2017, CI3 said that “Abu OMAR” lives in Mississauga and owns the Mazaya Restaurant." A report created by an OPP analyst based on date obtained through an authorization documented that a phone number associated with the restaurant (416-854-2005) was one of the top ten transmissions with prepaid telephone numbers 647-771-1142 and 647-771-1152 (prepaid telephones believed to have been used by Muhamad Omarbach and Ihsan Suliman). See paragraphs 94-95 of ITO #30.
l) In July 2017, CI5 said that a man named Amer Elsayegfi, a man named Mohamad Salam and a man named Ziad Boutari were trafficking contraband tobacco. Transmission data showed a link between number 647-771-1142 (a prepaid telephone believed to have been used by Muhamad Omarbach) and 416-728-2071(owned by Randa El-Sayegh). See paragraphs 96-97 of ITO #30.
m) In July 2017, CI5 said that Mohamad Salam’s telephone number was 416-722-5646. Transmission data later confirmed a link between number 647-771-1142 (a prepaid telephone believed to have been used by Omarbach) and 416-722-5646 (confirmed to be owned by Khaled Boutari). See paragraph 98 of ITO #30.
n) In July 2017 CI5 said that Ziad Boutari “sells Native cigarettes and shisha tobacco from the trunk of his car in the parking lot of Country Style Donuts at 334 Dundas Street East in Mississauga.” On August 2, 2017, police observations confirmed actions consistent with this. And on October 23 2017, the police conducted surveillance on Ziad Boutari when he was arrested and charged with trafficking contraband tobacco. At para 117. See paragraphs 99 and 117 of ITO #30.
o) In July 2017 CI5 said that Ziad Boutari’s telephone number was 647- 774-2065. Police confirmed this and also that there were transmissions between number 647-771-1142 (a prepaid telephone believed to have been used by Omarbach) and 647-774-2065 (owned by Ziad Boutari). See paragraph 100 of ITO #30.
p) In August 2017, CI4 said that “Abu Omar” and Ahmed El Daoud were trafficking shisha and that Ahmed El Daoud’s cellular telephone number was 519-722-0059. A judicial authorization confirmed that the phone number belonged to El Daoud. Transmission data confirmed that Omarbach was in contact with El Daoud’s telephone (519-722-0059). See paragraphs 101-102 of ITO #30.
q) In August 2017 CI4 said that “Ahmed El Daoud owns an import/export business in which he imports a lot of hookah products from Jordan.” Police open source research later confirmed this. See paragraphs 103- 104 of ITO #30.
r) In August 2017, CI4 said that Ahmed El Daoud drives a black Toyota Sienna minivan. The police confirmed this through an MTO check. See paragraph 105 of ITO #30.
s) In August 2017, CI6 said that a man named " Abu Omar” and a man named “Ihsan” were “smuggling” contraband tobacco and Khat and that one of ‘Abu OMAR's” telephone numbers was 416-939-2229. As noted previously, CI1 also stated that Omarbach’s cellular telephone number was 416-939-2229. The police confirmed that this phone number belonged to a business operated by Omarbach. See paragraphs 106- 107 of ITO #30.
t) In August 2017, CI6 said that one of “Abu Omar’s” other telephone number was 778-918-3908. Police analysis showed that it was highly likely that the actual user for 778-918-3908 is Ihsan Suliman. See paragraphs 108 to 111 of ITO #30.
u) In October 2017, CI6 said that a man named “Abu OMAR” and a man named “Ihsan” were trafficking contraband tobacco. See paragraph 119 of ITO #30. This was confirmed though numerous surveillance observations outlined throughout the ITO.
v) In October 2017, CI 6 said that OMARBACH conducts business at named company ("TT"), the specific jurisdiction in the GTA ("QQ"), and the general area in which the business is located. The affiant corroborated the location of that named business using the internet. See paragraph 120 of ITO #30.
w) In October 2017, CI6 said that a certain named person ("Z" - full name not provided) was hired by Omarbach for a particular business related to shisha tobacco. CI6 also provided an additional detail about the nature of the business purpose, namely criminal activity ("AA"). The specific jurisdiction in the GTA ("QQ"), and the general area in which the business is located were also provided. And in May 2017, the affiant was advised “Abu OMAR “owns the Mazaya Restaurant.” On the 29th day of August 2017, the police conducted surveillance on Omarbach. At 2:30pm, he was observed entering the Mazaya Restaurant, located at 5130 Dixie Road, Mississauga, Ontario. In May 2017, CI3 said that “Abu OMAR “owns the Mazaya Restaurant.” Police open source research confirmed that that restaurant was a shisha café. See paragraphs 122-123 of ITO #30.
x) In October 2017, CI6 said that “Muhammad's telephone number is 416- 854-2005.” Police analysis showed that that number was linked to Omarbach and Suliman. See paragraph 124 of ITO #30.
y) In October 2017, CI 6 said that “OMARBACH’s largest client is Mazaj Shisha Lounge on Meyerside Drive in Mississauga.” On the 29th day of August 2017, the police observed Omarbach there. Tracking data also showed that Omarbach and Suliman had visited there. See paragraph 125 of ITO #30.
z) In October 2017, CI6 said that Omarbach “will only discuss tobacco related business on 778-918-3908 and 778-918-3960.'” Police analysis revealed that it is highly likely that the actual user for 778-918-3960 is Omarbach. See paragraphs 126-128 of ITO #30.
aa) In October 2017, CI4 said that “Abu Omar, Ihsan Jaradat (aka Ihsan Suliman), Feras Albetar and Feras Radhi were trafficking contraband tobacco. See paragraph 129 of ITO #30. The ITO previously included confirmatory information linking Omarbach to Feras Albetar. See paragraphs 65-68 of ITO #30.
bb) In August 2017, CI5 said that another one of “Abu OMAR’s” telephone numbers was 647-773-8494. (Note that it appears the reference to CI5 was an error and that the affiant meant CI6). That number was found to linked to an account at Storage City Self Storage. Omarbach was confirmed attending and being associated that business. See paragraphs 132-138 of ITO #30.
cc) In January 2018, CI4 said that Ihsan Suliman (aka Ihsan Jaradat) sells shisha tobacco to the Al-Omda Restaurant in Mississauga. On the 2nd day of January 2018, the tracking device on Ihsan Suliman’s brown Honda CRV documented that it attended Storage City Self Storage from 8:18pm until 8:22pm. The Global Positioning System (GPS) coordinates then documented that Ihsan Suliman’s brown Honda CRV was parked in the area in front of Al-Omda Lounge, located at 3100 Ridgeway Drive, Mississauga, Ontario, from 8:34pm until 8:42pm. See paragraph 140 of ITO #30.
dd) In August 2017, CI6 said that a man named “Abu Omar” and a man named “lhsan” were “smuggling” contraband tobacco and Khat. On the 24th day of November 2017, Mahmud Ismail and Ibrahim Ibroo were found in the possession of khat and were charged. Mahmud Ismail’s phone records revealed contacts with Omarbach and Suliman. Police analysis from tracking devices also revealed that Omarbach was at the residence of Ismail in January 2018. See paragraphs 154-156 of ITO #30.
ee) In October 2017, CI6 said that “OMARBACH’s largest client is Mazaj Shisha Lounge on Meyerside Drive in Mississauga. On the 30th day of January 2018, police surveillance showed that Muhamad OMARBACH and Ihsan Suliman (aka Ihsan Jaradat) attended the Mazaj Lounge and reversed their vehicle up to the rear entrance. See paragraph 165 of ITO #30.
ff) In May 2017, CI3 said that “Abu OMAR “owns the Mazaya Restaurant”. Omarbach was observed attending that restaurant on January 31, 2018. See paragraphs 166-168 of ITO #30.
gg) In March 2018, CI6 provided the role of Mohamad Yaser Hanoura in shisha tobacco trafficking, as well as his phone number As a result of a judicial authorization, it was learned that the telephone number was owned by Mohamad Yaser Hanoura. The investigators were also advised by the Montreal Police Service that Yaser Hanoura was suspected of trafficking shisha tobacco. See paragraph 222 of ITO #30.
hh) In late 2017, CI 6 advised that "Omarbach ships tobacco to two other named locations outside of the GTA ("MM" and "NN") and were advised that the tobacco is shipped on skids with a shipping company. The police subsequently observed tobacco being shipped with a shipping company. See paragraphs 232 and 242 of ITO #30. There are also several references throughout the ITO of the shisha being on skids. See paragraphs 152, 171, 194, 204, 226, 244, 267 of ITO #30.
ii) In April 2017, CI2 provided details about a named person's (first name provided) role in importing the tobacco into Canada and how the importation works. On the 15th day of February 2018, the affiant entered Apple Self Storage locker 1885 under the authority of a general warrant. At that time, the affiant observed details associated with a number of cases of suspected Al Fakher shisha tobacco that corroborated some of the information from CI2. See paragraph 243 of ITO #30.
jj) During a conversation with CI5 in July 2017, the police were advised that Mohamad Salem was trafficking Native cigarettes from his van. On the 4th day of April 2018, at 6:06pm the police observed a man named Mohamad Salem attending Unit 6, located at 6535 Millcreek Drive, Mississauga, Ontario and obtaining a suspected Master Case of cigarettes from Ihsan Suliman. The affiant received and reviewed analysis reports which analyzed the usage and movements of Ihsan Suliman’s two (2) mobile telephones (647-466-3314 and 778-918-3908). The report documented that on the 4th day of April 2018, at 6:06pm, Mohamad Salem (416-500-6792) called Ihsan Suliman’s prepaid telephone (778-918-3908). See paragraph 266 of ITO #30.
kk) At paragraph 280 of ITO #30, all the key materials grounds on which the ITO is based are summarized within subparagraphs to that paragraph. Within these grounds, corroborating information is provided to back up the information obtained from the CIs. These grounds and corresponding corroborating information are outlined below. Judicial summaries are relied on for any information that has been redacted.
a. CIs 1, 2, 3, 4,5, and 6 independently stated that Muhamad Omarbach was trafficking contraband tobacco. See paragraph 280(i) of ITO #30.
b. CIs 1 and 6 independently stated that Muhamad Omarbach lived in Mississauga and his telephone number was 416-939-2229. Investigators made observations of Muhamad Omarbach attending the Mazaya Restaurant and of him coming and going from a residence located at 3271 Dovetail Mews, Mississauga, Ontario. Geo Warehouse documents that Muhamad Omarbach‘s spouse, Khadija Beliyd, owns 3271 Dovetail Mews, Mississauga, Ontario. Subscriber information for 416 939-2229 documented that it is owned by Paradise Fine Foods. An Ontario Business Information Systems (ONBIS) report generated by the Ministry of Consumer and Commercial Relations documented that Muhamad OMARBACH was the “Administrator” for a business named Paradise Fine Foods Limited. See paragraph 280(ii) of ITO #30.
c. CI2 stated that Muhamad Omarbach provides Hussam Ibrahim with the contraband tobacco he sells. In March 2017, Hussam Ibrahim was charged with trafficking contraband tobacco. Hussam Ibrahim’s historical transmission data documented that he had transmissions with a prepaid telephone believed to be owned by Ihsan Suliman (647-771-1152). See paragraph 280(iii) of ITO #30.
d. CI2 provided information about a specific named person ("W1" - first and last name provided), who was involved with trafficking tobacco for Omarbach. CI4 provided information that a named person ("W2"), whom the affiant believes is the same person as "W1", was selling shisha in two specific jurisdictions outside of the GTA ("OO" and "PP"). Data obtained from 492.2(1) Transmission Data Recorder documents show that Omarbach’s cellular telephone (778-918-3960) has had transmissions with a telephone number associated to one of those jurisdictions. It is unknown if the named person ("W2" - first and last name provided) has any connection to the associated phone number. See paragraph 280(iv) of ITO #30.
e. CIs 2 and 4 independently stated that Ahmad El Daoud’s telephone number was 519-722-0059. Subscriber information for 519-722-0059 documented that it was registered to Ahmad El Daoud of Kitchener, Ontario. Ahmad EL DAOUD’s historical transmission data documented that he had transmissions with a prepaid telephone believed to be owned by Ihsan Suliman (647- 771-1152). See paragraph 280(v) of ITO #30.
f. CI3 stated that Feras “works with Muhamad Omarbach and” sells a lot of shisha. CI3 also stated that Feras owns Basha Restaurant. An open source check documented that Basha Nahas is a Restaurant located at 610 Upper James Street, Hamilton, Ontario. NICHE RMS documented that Feras Albetar is associated to 610 Upper James Street, Hamilton, Ontario. An open source check documented that in August 2009, Feras Albetar of the Basha Arabic Social Club, located at 610 Upper James Street, Hamilton, Ontario, had been charged with possessing a restricted firearm and “other firearms related offences.” The news article stated that members of the Ontario Ministry of Revenue “raided” Basha for illegal tobacco. During the search, investigators located firearms and called police. See paragraph 280(vi) of ITO #30.
g. CI3 stated that Omarbach lives in Mississauga and owns the Mazaya Restaurant. Investigators have made observations of Muhamad Omarbach attending the Mazaya Restaurant. Investigators also made observations of Omarbach coming and going from a residence located at 3271 Dovetail Mews, Mississauga, Ontario. Geo Warehouse documents that Muhamad Omarbach‘s spouse, Khadija Beliyd, owns 3271 Dovetail Mews, Mississauga, Ontario. See paragraph 280(vii) of ITO #30.
h. CI3 stated that “Ihsan Jaradat runs Abu Omar’s tobacco business. CI3 specifies three tasks that Jaradat handles in running Abu Omar's shisha tobacco business. The tracking device on Ihsan Suliman’s brown Honda CRV documented that he had attended suspected hookah bars after he had been to Storage City Self Storage. See paragraph 280(viii) of ITO #30.
i. CI3 provided information that Omarbach had shisha brought into a specific jurisdiction outside the GTA ("MM"). The police did an analysis of phone records obtained by a transmission data recorder warrant and found that a phone number in that jurisdiction had a significant number of phone calls with two telephone numbers associated with Omarbach. However, subscriber information for the phone number in that jurisdiction did not lead to any information relevant to the investigation. See paragraph 280(ix) of ITO #30.
j. CIs3 and 4 independently stated that Muhamad Omarbach falsely imports his shisha declared as a specific type of a product. See paragraph 280(x) of ITO #30.
k. CI4 stated that “Ahmed EL DAOUD owns an import/export business in which he imports a lot of hookah products from Jordan.'’'’ An open source report on Ahmed El Daoud documents that he owns a business named AED Group. On its World Wide Web site, AED Group is described as being “Liquidator & wholesaler specialized in high end Liquidation and wholesale lowest prices!!! Branded Apparel, Shoes, Perfume, Cosmetics, Electronics, household items, Hookah (Shisha) accessories and lot more...” See paragraph 280(xi) of ITO #30.
l. CI5 stated that Ziad Boutari was trafficking contraband tobacco. On the 23rd day of October 2017, the police conducted an investigation into the allegations. Subsequently, Ziad Boutari was found to be in possession of contraband tobacco and was arrested and charged. Subsequent to an authorized search of Boutari’s cellular telephone, it was discovered that he had Omarbach’s telephone numbers in his contact list. See paragraph 280(xiii) of ITO #30.
m. CI5 stated that Mohamad Salem was trafficking Native cigarettes from his van. During police surveillance, Mohamad Salem was observed attending Unit 6, located at 6535 Millcreek Drive, Mississauga, Ontario and obtaining a suspected Master Case of cigarettes from Ihsan Suliman. See paragraph 280(xiv) of ITO #30.
n. CI6 provided information that Omarbach conducts business at a specific named company ("TT"). The police corroborated that Omarbach had done business with that named company. See paragraph 280(xv) of ITO #30.
o. CI6 stated that "Mohammad's phone number is 416-854-2005". CI4 stated that Muhamad Omarbach owns the Mazaya Restaurant. An Ontario Business Information Systems (ONBIS) report generated by the Ministry of Consumer and Commercial Relations documented that a man named Mohd Abedalhamad was the director of a business named Mazaya Restaurant and Cafe in Mississauga, Ontario. A police report documented that 416-854- 2005 was on a list of the top ten transmissions with prepaid telephone 647-771-1142 and 647-771-1152 (prepaid telephones believed to have been used by Muhamad Omarbach and Ihsan Suliman). An open source check on number 416-854-2005 documented that it was associated to a Facebook account under the name of Mohd Abed. See paragraph 280(xvi) of ITO #30.
p. CI6 stated that “Omarbach’s largest client is Mazaj Shisha Lounge on Meyerside Drive in Mississauga.” During surveillance, investigators observed Muhamad Omarbach attend the area of the Mazaj Shisha Lounge. The tracking device on Ihsan Suliman’s brown Honda CRV documents that he has attended the Mazaj Shisha Lounge, after having attended Storage City Self Storage. See paragraph 280(xvii) of ITO #30.
q. CIs 4 and 6 independently stated that Omarbach uses storage facilities to store his contraband tobacco. The tracking device on Ihsan Suliman’s brown Honda CRV documented that he had attended suspected hookah bars after he had been to Storage City Self Storage. The affiant also had a conversation with Guido Barbati of Storage City Self Storage where he believed that Muhamad Omarbach and Ihsan Suliman were renting storage lockers G1283 and H1355 and that Omarbach falsely identified himself as Adam Swarski in order to conceal his true identity when he rented the two storage units. Apple Self Storage Site Activity Reports and Lease Agreement documented that Omarbach was renting storage locker 1885. Video surveillance footage from Apple Self Storage revealed that Ihsan Suliman and Muhamad Omarbach were in possession of what appeared to be cases of A1 Fakher shisha tobacco while at Apple Self Storage. The tracking device on Ihsan Suliman’s brown Honda CRV documented that he had attended the Mazaj Lounge after he had been to Apple Self Storage. During police surveillance, Muhamad Omarbach and Ihsan Suliman have been observed at Unit 6, located at 6535 Millcreek Drive, Mississauga, Ontario. Police observed what they believed to be cases of A1 Fakher shisha tobacco being unloaded from a rental truck and into Unit 6. Contraband tobacco was also seized pursuant to general warrants from Storage City Self Storage locker G1283 and H1355 and Apple Self Storage locker 1885, Analysis of the samples seized were conducted and found to contain tobacco. See paragraph 280(xviii) to 280(xxi) of ITO #30.
Footnotes
- R.S.C. 1985, c. C-46.
- R.S.O. 1990, c. T.10.
- Shisha tobacco is flavored tobacco and is by definition illegal in Ontario and illegal to sell (see paragraphs 177 and 277(d) and (e) of ITO #30).
- ITOs #22, 24 and 25.
- Al Fakher is a shisha manufacturer in United Arab Emirates.
- Dickson J. in Canada (Director of Investigation & Research, Combines Investigation Branch) v. Southam Inc. (1984), (sub nom. Hunter v. Southam Inc.), 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, (S.C.C.) at para. 43.
- R. v. Spencer, 2014 SCC 43 at para. 44.
- The following excerpt supports Ms. Lafond’s position: ITOs #22, at paras. 10-11 and 173.
- R. v. Debot, at para. 54; R. v. Morelli, at para. 127; R. v. Sadikov, 2014 ONCA 72, para. 81.
- R. v. Campbell, [2005] O.J. No. 2369 (Ont. S.C.J.), at paras. 41 to 46. Sadikov, at para. 81, R. v. Stevens, 2015 ONSC 436 (Ont. S.C.J.), at para. 54.
- R. v. Victoria, 2018 ONCA 69, at para. 96; R. v. Sadikov, at paras. 83 -84; R. v. Araujo, at para. 54; R. v. Morelli, 2010 SCC 8 at para. 40.
- R. v. Chehil, 2013 SCC 49, at para. 33.
- Kelly v R, 2010 NBCA 89, at para. 40.
- 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 (S.C.C.), at para. 68.
- R. v. Sadikov, at para. 83; R. v. Collins, 1989 CanLII 264 (ON CA), [1989] O.J. No. 488 (Ont.C.A.); R. v. Crevier, 2015 ONCA 619, para. 66; R. v. Lising, 2005 SCC 66 (S.C.C.), at para. 30; and R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1 (Ont. C.A.), at para. 45, aff'd 2011 SCC 32, [2011] 2 S.C.R.549 (S.C.C.).
- R. v. Araujo, 2000 SCC 65, [2000] 2 SCR 992, at para. 54; R. v. Vu, 2013 SCC 60, at para. 16; R. v. Campbell, 2010 ONCA 588, at paras. 57, 62, aff'd by the SCC, 2011 SCC 32; R. v. Chan, 1998 CanLII 5765 (ON CA), [1998] O.J. No. 4536, at para. 4 (Ont. C.A); R. v. Green, 2015 ONCA 579, at para. 18.
- R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 SCR 343, at para. 41; World Bank Group v. Wallace, 2016 SCC 15, at paras. 121-123; R. v. Paryniuk, 2017 ONCA 87, at para. 77; R. v. Church of Scientology of Toronto, 1987 CanLII 122 (ON CA), [1987] O.J. No. 64, at para. 207 (Ont. C.A.); R. v. Collins (1989), O.J. No. 448, at paras. 38-40 (Ont. C.A.); R. v. Stack, 2021 ONCJ 274 at paras. 36-45.
- R. v. Paryniuk, 2017 ONCA 87 at para. 69; R. v. Booth, 2019 ONCA 970, at paras. 62-65; R. v. Morelli, 2010 SCC 8 at para. 45.; R. v. Araujo, 2000 SCC 65, at para. 57.
- R. v. Morelli, 2010 SCC 8 at paras. 42-43; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 59.
- Araujo para. 59.
- Morelli, paras. 42- 43.
- R. v. Morelli, 2010 SCC 8, at paras. 42-43; R. v. Sadikov, 2014 ONCA 72, at paras. 83-88.
- Hunter v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 167.
- ITO #1 para. 102.
- See for example, the following excerpts: ITOs: # 5, para. 119; #8 para. 148; # 9, para. 150, #10, para. 161; #13; paras. 149 and 178; #14, paras. 151 and 171; #15, paras. 143 and 173; #16, paras, 151 and 154; #17 paras. 162 and 166; #19, paras. 159 and 163; #20, paras. 161 and 165.
- R. v. Christiansen, 2017 ONCA 941 at para. 10.
- R. v. Christiansen, at para. 11.
- Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145 at para. 43.
- R. v. Brand (sub nom R. v. Ford), 2008 BCCA 94, 229 C.C.C. (3d) 443 (B.C. C.A.), at paras. 50-51.
- Brand, para. 51.
- R. v. Phan, 2021 ONSC 6312 at para. 89.
- R. v. Jodoin, 2018 ONCA 638 at paras. 14, 15.
- R. v. Telus Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3, [2013] S.C.J. No. 16 (S.C.C.) at para. 56.
- R. v. Jodoin, 2018 ONCA 638 at para. 13; R. v. Ha, 2009 ONCA 340 at paras. 42-43; See also R. v. Bijelic, Flammia, et al, 2018 ONSC 6676.
- Ha, Jodoin in R. v. Brand (sub nom R v Ford), paras. 50, 51.
- R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] 3 S.C.R. 3 (S.C.C.), and R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8 (S.C.C.).
- R. v. MacDonald, 2012 ONCA 244, at para. 20.
- 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140 (1989), 52 C.C.C. (3d) 193 (S.C.C.) at page 215.
- See paragraph 289(v) of ITO #30.
- See ITO #30, para. 102.
- See ITO #10, paras. 110 to 121 and 165.
- See ITO #15, para. 78.
- See ITO #15, paras. 53, 54, 56, 69, 70, 75, 76, 87, 90, 97, 110, 111, 114, 115, 120, 126, 130, 137, 141, 157 and 158.
- R. v. Goulart, 2016 ONSC 1519, at para. 21; R. v. Ricketts 2014 ONSC 3210, [2014] O.J. No. 5389 at para. 90.
- R. v. Bullen, 2016 ONSC 7684, at para. 19(g); R. v. Hosie, 1996 CanLII 450 (ONCA), para. 14; R. v. Henry, [2012] O.J. No. 1267 (ONSC).
- Abu Omar was determined to be Mr. Omarbach by photo identification and other police investigation.
- R. v. Greffe, 1990 CanLII 143 (SCC), at para. 24.
- For example, ITO #30 paras. 64-70.
- ITO #1 para. 117.
- ITO #1 para. 92.
- See ITO #30 paras. 100, 266.
- ITO #30 paras. 132-138.
- R. v. Lewis, 1998 CanLII 7116 (ON CA), [1998] O.J. No 376 (C.A.), at para. 18; R. v. Pavlik, 2019 SKCA 107, at para. 34.
- See R. v. Greffe, 1990 CanLII 143 (SCC), [1990] 1 S.C.R. 755 (S.C.C.); R. v. Lising, 2004 BCCA 33 at para. 33.
- Paragraph 280(i) of ITO #30.
- R. v. Morelli, 2010 SCC 8 at para. 40-42; 102 ; R. v. Morris, 1998 NSCA 229, [1998] N.S.J No 492 (C.A.), at para. 43, 89; R. v. Colbourne, 2001 CanLII 4711 (ON CA), [2001] O.J. No. 3620 (C.A.), at paras. 37-45; R. v. Kesselring, 2000 CanLII 2457 (ON CA), [2000] O.J. No. 1436 (C.A.), at paras. 31-33; R. v. Fleming, 2015 ONSC 4487, at para. 20; R. v. Mahmood, 2011 ONCA 693, at para. 99; R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at paras. 8 and 30; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 54 and 59; R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] S.C.J. NO. 115; R. v. Hosie, 1996 CanLII 450 (ON CA), [1996] O.J. NO. 2175
- While all the ITOs reference these grounds for ease of reference, refer to ITO # 30 Paragraphs 49 to 63, 75 to 76, and 80 of ITO #30.
- ITO #1, at para. 54.
- Surveillance Report of M. O’Connell, dated November 28, 2016.
- Erroneous information in an ITO will be corrected by simply removing it. R. v. Paryniuk, 2017 ONCA 87 at para. 69; R. v. Booth, 2019 ONCA 970, at paras. 62-65; R. v. Morelli, 2010 SCC 8 at para. 45.; R. v. Araujo, 2000 SCC 65, [2000] 2 SCR 992, at p.1020.
- For example, ITO #17 para 48; ITO #1 para. 56; ITO #20 para 48.
- Judicial Authorizations 1 & 2 - Sourcing Notes of Joseph Piergentili.
- I have made this correction in all the ITOs where this error was referred to.
- See ITO #1, at paras. 52-58 for the overall grounds concerning the surveillance from November 16, 23, and 28, 2016 at Mallah Halal Meat: See ITO #13 at paras. 33-35 in regard to identifying Messrs. Omarbach and/or Suliman at Mallah Halal Meats on November 16, 23, and 28, 2016: See ITO #8, at paras. 67-68 in regard to the detail about Hiba Hellail being the partner of Mr Suliman and the secondary driver for the rental vehicle.
- See paras. 66 to 92 of ITO #1.
- Paras. 62-65 of ITO #1.
- ITOs #1, at para. 92; ITOs #2, at para. 90; ITOs #4, at para. 94; ITOs #5, at para. 89.
- See R. v. Quansah, 2015 ONCA 237, at paras. 75-86 and 117-124.
- ITO #1, para. 63 and in several other ITO #3, at para. 61; ITO #4, at para. 69; ITO #5, at para. 65; ITO #8, at para. 73; ITO #9, at para. 63; ITO #10, at para. 67; ITO #13, at para. 45; ITO #14, at para. 45; ITO #15, at para. 45; ITO #16, at para. 60; ITO #17, at para. 59; ITO #18, at para. 52; ITO #19, at para. 59; ITO #20, at para. 59; ITO #22, at para. 59.
- Judicial authorizations 1 & 2 - Sourcing Notes Joseph Piergentili.
- For example, in ITO #9 see paras. 62, 64, 65.
- R. v. Morelli, 2010 SCC 8, at para. 58.
- R. v. Nguyen, 2011 ONCA 465, at paras. 49-50; R. v. Vu, 2011 BCCA 536, at paras. 44-45.
- R. v. Paryniuk, 2017 ONCA 87 at para. 74.
- R. v. Phan, supra at paras. 54–56; R. v. Paryniuk, supra at paras. 69–70, 74–75.
- ITO #1, at para. 26; ITO #3, at para. 25; ITO #4, at para. 33; ITO #5, at para. 29; ITO #8, at para. 36; ITO #9, at para. 27; ITOs #10, at para. 31; ITO #13, at para. 9; ITO #14, at para. 9; ITO #15, at para. 9; ITO #16, at para. 24; ITO #17, at para. 23; ITO #18, at para. 16; ITO #19, at para. 23; ITO #20, at para. 23; ITO #22, at para. 23.
- R. v. Sutherland, 2000 CanLII 17034 (ON CA), at para. 12.
- Sutherland para. 12.
- R. v. Cosgrove (D.) et al., 1997 CanLII 16009 (NL SC), at para. 70; R. v. Goulart, 2016 ONSC 1519, at para. 20.
- Para 108, Dec 28, 2016 ITO, from the Mallah and Ibrahim investigation
- R. v. Chehil, 2013 SCC 49, at paras. 29-31.
- R. v. Chehil, at para. 26; Kang-Brown, 2008 SCC 18, Binnie J. at para. 75.
- R. v. Chehil, para. 29
- See R. v. Bramley, 2009 SKCA 49, 324 Sask. R. 286 (Sask. C.A.), at para. 60.
- R. v. Monney, 1999 CarswellOnt935 at para. 50.
- R. v. Chehil, at para. 32.
- Chehil, at para. 35.
- s. 492.1(1)(warrant for Tracking device motor vehicle) and 492.2(1)( transmission data); ITO #s 3 and 5 and 8 were for transmission data s. 492.2(1); ITO #s 13, 14 ( in part) and 15 and 18 were for transmission data s. 492.2(1) and s. 492.1(1)(warrant for Tracking device, a motor vehicle or to obtain transmission data, Part of ITO #14 also involved an authorization under section 492.1(2) of the Code (i.e., to track the location of a person) and required reasonable grounds to believe).
- For example see the following: Surveillance was conducted on the following dates: July 7 and July 25, 2017 of Ihsan Jaradat (Suliman) para. 102 ITO #10; August 2, 2017 at Country Style Donuts, Cst. Scott Moir made observations of a Zia Boutar; appeared on two occasions that he was providing two different parties with a bag containing a rectangular items ITO #10 para 120; August 29, 2017 surveillance on Omarbach, at 3271 Dovetail Mews. Suliman’s Honda was parked at this address: ITO #17 Para. 113: watched a female leave this address and go to 3282 Magwood Road, a house owned by Omarbach. Mr. Omarbach was observed to be the driver of a Chrysler Pacifica. Mr. Omarbach was later seen attending at the Mazaya Restaurant, he then went back to the Dovetail residence. On the 29th day of August 2017, the affiant and others observed him near loading docks located next to this restaurant; CI5 said that Ziad Boutari was trafficking in contraband from his Honda at Country Style: as a result of surveillance on Oct 23, 2017 at a Country Style, Mr. Boutari was arrested and found to be in possession of contraband tobacco. The observations on this date did lead to evidence connecting Mr. Omarbach to Mr. Boutari.
- ITO # 16.
- ITO # 17.
- See ITO #30 paras. 150, 157, 159, 162, 171, 174, 175, 180, 184, 186, 193, 194, 201, 209, 217, 218, 220, 224, 227, 231, 240, 241, 244, 246, 250, 254, 255, 262, 263.
- ITO #30 paras. 223, 244.
- R. v. Halley, 2012 ONCJ 117 at para. 61.
- ITO #1, at para. 37; ITO #3, at para. 36; ITO #4, at para. 44; ITO #5, at para. 40; ITO #8, at para. 47; ITO #9, at para. 38; ITO #10, at para. 46; ITO #13, at para. 24; ITO #14 at para. 24; ITO #15, at para. 24; ITO #16, at para. 39; ITO #17, at para. 38; ITO #18, at para. 31; ITO #19, at para. 38; ITO #20, at para. 38; ITO #22, at para. 38.
- R. v. Hosie, 1996 CanLII 450 (ON CA), at para. 31.
- Araujo para. 59.
- See paragraphs 53 to 104 of ITO #5.
- I will only be referring to the last 4 digits of the cell numbers mentioned in the ITOs.
- ITO # 9 at paras. 48, 78,134-138.
- ITO #9 at paras. 136-138.
- ITO #10 at paras. 110 to 121, and 165.
- R. v. MacDonald, 2012 ONCA 244, at para. 20.
- See para. 78 in ITO #15.
- Such grounds came from CIs, judicial authorizations, and police analysis, (see paras. 53, 54, 56, 69, 70, 75, 76, 87, 90, 97, 110, 111, 114, 115, 120, 126, 130, 137, 141, 157 and 158 of ITO #15).
- Para. 129 of ITO #15.
- See paras. 138-150 of ITO #17.
- See para. 149 of ITO #17.
- See para. 148 of ITO #18.
- See paras. 39-54 of ITO #18.
- Paragraphs 150, 157, 159, 162, 171, 174, 175, 180, 184, 186, 193, 194, 201, 209, 217, 218, 220, 224, 227, 231, 240, 241, 244, 246, 250, 254, 255, 262, 263 of ITO #30.