ONTARIO COURT OF JUSTICE

DATE: 2021 09 02 COURT FILE No.: Newmarket 21-60274 / 20-09953

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

BARRINGTON GRANT

Before: Justice E. Prutschi

Heard on: August 16, 2021

Reasons for Judgment released on: September 2, 2021

REASONS FOR JUDGMENT ON SECTION 8 AND 24(2) APPLICATION

Anil Singh and Susan Kim ............................................................... counsel for the Crown Reid Rusonik .................................................. counsel for the accused Barrington Grant

PRUTSCHI J.:

[1] Barrington Grant was arrested on a series of offences arising out of the alleged transfer of a firearm that was the subject of a police surveillance operation. The rental vehicle Mr. Grant had been driving was subjected to a search incident to arrest. Though the initial search did not reveal anything of note, police impounded the vehicle, applying for a warrant to search it along with a property associated to Mr. Grant.

[2] Those warrants were granted, the vehicle was searched, and a firearm was discovered. Mr. Grant contends that the search warrant for the vehicle was improperly issued, rendering the search warrantless and invalid and demanding the exclusion of the firearm from his trial.

THE ISSUES

[3] Does the Applicant have standing to challenge the Judicial Authorization for the search warrant of the vehicle?

[4] If the Applicant does have standing, did the Information to Obtain the warrant (“ITO”) properly disclose reasonable probable grounds to believe a firearm would be located inside the vehicle?

[5] If the warrant was not properly issued, the question of whether the firearm should be excluded from evidence in accordance with section 24(2) of the Charter has been deferred on consent of all parties. This is to permit my related ruling on a broader Garofoli application relating to an authorization for intercepted communications that also impacts Mr. Grant.

[6] For the reasons that follow, I find that Mr. Grant does have standing to challenge the validity of the search warrant. However, the application to invalidate the search warrant fails and the firearm is admissible as evidence at the trial.

SUMMARY OF THE FACTS

[7] In 2019 the York Regional Police Service (“YRP”) commenced an investigation into alleged criminal activity within the Greater Toronto Area (“GTA”) tow truck industry. The investigation was focussed on a purported territorial war between towing companies fought over the protection of business ‘turf’ connected with alleged widespread consumer and insurance fraud. That territorial war was also said to be the source of significant violence which included alleged arsons, firearms offences, and murder.

[8] The investigation was dubbed Project Platinum and had at its core a Judicial Authorization to Intercept Private Communications (“the wiretap authorization”) which was valid from February 28, 2020 through to May 28, 2020.

[9] On March 2, 2020 at 5:21pm a telephone call was intercepted which discussed plans between persons believed to be Mohamad El-Zahawi and Afram Khamo for the trafficking of a firearm. The firearm was to be delivered to someone known as “Ali”.

[10] At 10:00pm that same day a further conversation took place in which the price for the firearm was negotiated. Physical surveillance of El-Zahawi was conducted and, at 10:50pm, he was observed to attend a gas station in Toronto where he met with two unknown males operating a Chevrolet Tahoe. El-Zahawi opened the trunk of his vehicle during this meeting though “no clear exchange” was observed before the occupants returned to their respective vehicles and separated.

[11] On March 4 [1] , 2020 at 5:21pm a call was intercepted in which Khamo was heard to ask El-Zahawi if the “sajoor” was ready. “Sajoor” was translated as a Kurdish word for firearm. El-Zahawhi advised that he would let Khamo know and the two had a further negotiation about the price for the firearm.

[12] Earlier that same day at 3:32pm El-Zahawi had been observed operating a white 2019 Ford Edge with an unknown male passenger later identified as Mr. Grant. Between 4:29pm and 6:43pm they were observed to visit several locations in the Ford Edge, this time driven by Grant, including what were believed to be El-Zahawi’s workplace and home.

[13] At 6:55pm El-Zahawi was heard on a further intercepted call finalizing plans with a male believed to be Ali Reza Beyreghian for the transfer of the firearm. On that call El-Zahawi asked Beyreghian to meet his “boy” around Weston and Finch later that evening.

[14] At 7:04pm El-Zahawi arrived at his residence and exited the vehicle. Grant drove away in the Ford Edge. Grant was not immediately followed but was located by surveillance at 7:50pm and followed to an address in Pickering that he attended for approximately five minutes before departing again.

[15] At 8:59pm Grant arrived at a gas station at 3514 Weston Road, parking beside a Chevrolet Tahoe that had previously pulled in. This Tahoe was the same vehicle that had been observed meeting with El-Zahawi two days earlier.

[16] Grant exited the Ford Edge, approached the Tahoe and spoke to its occupant while placing his hands through the open window. He then attended the trunk of the Edge and retrieved an unknown item, walked back to the Tahoe and placed his hands through the open window.

[17] At 9:03pm Grant was arrested along with the sole occupant of the Tahoe, Ali Beyreghian. As Beyreghian was being arrested a grey plastic bag fell out of the Tahoe inside of which six rounds of ammunition were located. The Tahoe was searched incident to arrest and a jacket was located with $1500 cash in the inside pocket.

[18] Police conducted a search incident to arrest of the Ford Edge. Nothing of note was located or seized. The Edge was secured and transported to a YRP facility.

[19] Later that same evening at 10:22pm police intercepted a phone call to El-Zahawi from an unknown male in which the arrest of Grant was alluded to. In that conversation the unknown male asked El-Zahawi if “they got him with the blicky too?” El-Zahawi indicated that he did not know and later stated, “let’s just hope they never found it in his whip”. The Affiant noted that he believed “blicky” to be coded language for “firearm” and “whip” to be coded language for “vehicle”.

[20] D/C Gill prepared an Information to Obtain (“ITO”) for a search warrant on the Ford Edge. The Affiant reviewed evidence obtained from the wiretaps (both before and after Grant’s arrest) as well as the surveillance leading up to the arrest. D/C Gill outlined the search incident to arrest of the Edge noting that a firearm was not located. Referencing the intercepted communication after Grant’s arrest the affiant noted in the grounds for the warrant that, “I believe it is possible investigators may have missed the firearm in the Ford Edge…” (emphasis added).

[21] Police were granted a search warrant for the Ford Edge at 3:03am on March 5. During the execution of that warrant a Glock 22 .40 handgun loaded with 13 rounds of ammunition in an over-capacity magazine was located inside a sock under a floor panel in the trunk. The ammunition was consistent with the ammo seized from Beyreghian, the occupant of the Tahoe.

THE LAW

Standing

[22] In order to have standing to claim section 8’s protection from unreasonable search and seizure, an applicant must establish a reasonable expectation of privacy in the location being searched. The onus is on the Applicant to establish, on the totality of the circumstances, that the state conduct impacted their “objectively reasonable privacy interests”.

R. v. Edwards, [1996] 1 S.C.R. 128 R. v. Collins, [1987] 1 S.C.R. 265

[23] Edwards established a non-exhaustive set of factors for courts to consider in assessing whether a person has a reasonable expectation of privacy:

i. Presence at the time of the search ii. Possession or control of the property or place to be searched iii. Ownership of the property or place iv. Historical use of the property or item v. The ability to regulate access, including the right to admit or exclude others from the place vi. The existence of a subjective expectation of privacy; and vii. The objective reasonableness of this expectation.

[24] Possession or control over property as a foundation for a reasonable expectation of privacy applies only in circumstances of lawful possession. Thus, a person in possession of a stolen vehicle for example, cannot claim an expectation of privacy in the vehicle which they stole.

R. v. Crocker, 2009 BCCA 390 (leave to appeal refused 2009 S.C.C.A. No. 466) at paras 85-86

[25] The degree of privacy expected sits along a continuum with a person’s home positioned at the apex. Motor vehicles tend to fall at the lower end of that spectrum with courts recognizing a diminished expectation of privacy for rental vehicles.

R. v. Tessling, 2004 SCC 67 at para 22 R. v. Belnavis, [1997] 3 S.C.R. 341 at para 38-39 R. v. Kenyon at para. 78 (S.C.J.) R. v. Blazevic, 2011 ONSC 6182 at para. 78 (S.C.J.)

[26] The lawful arrest of the Applicant, along with the lawful seizure of the vehicle, substantially diminish any objectively reasonable expectation of privacy that might have existed. “Both factors significantly reduced the already modest reasonable expectation of privacy the appellant had with respect to his motor vehicle.”

R. v. Nicolosi (1998), 127 C.C.C. (3d) 176 (ONCA) at para. 21

[27] In assessing the reasonable expectation of privacy at the standing phase of a Charter challenge, the question to be answered is merely a threshold one. So long as the Applicant subjectively expected privacy over the place searched, and that expectation was objectively reasonable, the inquiry is completed. The question of the degree of privacy afforded is only relevant to subsequent stages of the constitutional analysis.

[28] In establishing a subjective expectation of privacy, the Applicant is entitled to rely on the Crown’s theory of liability to establish certain facts relevant to a section 8 claim. This does not undermine the necessity of assessing those facts “in the totality of the circumstances” outlined in Edwards.

R. v. Jones, 2017 SCC 60, [2017] S.C.J. No. 60 at para. 19 R. v. Labelle, 2019 ONCA 557 at para. 31

[29] The Crown in its submissions seeks to bifurcate its theory so as to secure the best of both legal worlds. It argues that Grant had no lawful possession of the Ford Edge but, by virtue (at least in part) of his operation of that vehicle, Grant was in possession of the firearm eventually located in the vehicle’s trunk.

[30] This follows the reasoning in Crocker, supra in which the court noted that even though the accused was present at the time of the search, in possession of the truck that was searched, and had some degree of control over the truck, he could not claim a privacy interest in it.

…those factors alone do not create a privacy interest. If that were the case, anyone in possession of stolen property could argue they had a privacy interest in the property. Here, there was no evidence of Mr. Crocker’s subjective expectation of privacy or any objective criteria to support that subjective belief, if it had existed, such as the historical use of the truck or how and when it came to be in his possession.

…While the police search of the truck may have been unlawful, any remedy associated with that conduct could be asserted only by an individual who had a lawful proprietary, possessory or privacy interest in the vehicle.

Crocker supra at para. 85-86.

[31] More recently in R. v. Greer, 2020 ONCA 795 the ONCA addressed the issue of standing in relation to a vehicular search. There the Crown theory claimed that Mr. Greer was in control of his girlfriend’s vehicle which was the subject of the search. Mr. Greer was living with his girlfriend at the time and kept some of his personal belongings in her vehicle. Despite these facts the ONCA upheld the trial judge’s ruling that Mr. Greer lacked standing to challenge the search of his girlfriend’s car, noting:

If Mr. Edwards, who had his own key to his girlfriend’s apartment and kept belongings there, did not have a reasonable expectation of privacy in his girlfriend’s apartment, Mr. Greer’s weaker claim to a reasonable expectation of privacy in Ms. Symers’ car must fail.

R. v. Greer, 2020 ONCA 795 at para. 87

[32] The facts of Greer however differ from the circumstances of Mr. Grant in at least one key respect. Greer was not operating the car at the time of his arrest and the person who was in control of the vehicle consented to the search of it. Grant on the other hand was in sole possession and control of the Ford Edge at the time of his arrest.

[33] Thus, the issue of standing comes full circle and remains an assessment of the Edwards factors to determine whether the Applicant held a reasonable expectation of privacy in the Ford Edge. In reviewing those factors, I note the following:

• The vehicle was a rental and the Applicant was not a person authorized to operate it per the rental agreement. Having said that, the evidence is neutral as to whether the Applicant had any colour of right to operate the rental. Though there is no evidence that anyone authorized by the rental agreement permitted the Applicant to use the vehicle, neither is there evidence that the Applicant stole or otherwise unlawfully came into control of the vehicle. The only reasonable inference available from the surveillance outlined in the ITO suggests that Grant was permitted, if not explicitly legally authorized, to drive the Edge.
• The Applicant was in sole possession of the vehicle. He had the keys and the capacity to regulate access to it. This suggests, both subjectively and objectively, that the Applicant enjoyed a measure of privacy regarding the interior of the vehicle and its contents.
• The Applicant was lawfully arrested at the scene and the vehicle was subject to a lawful search incident to arrest at that time.
• The vehicle was lawfully secured by police following the search incident to arrest and held pending an application for a further search warrant.
• The warrant was exercised hours later in the Applicant’s absence while he remained under arrest. The Applicant’s absence from the vehicle at the time of the search was a direct result of his arrest by police. The removal by police of an individual cannot fairly be said to strip that individual of their privacy interest in the place from which they were removed.

[34] Grant’s privacy interest in the vehicle is closely analogous to that of the applicant in R. v. Wright where the Crown argued against standing on the basis that the accused was the unauthorized driver of a rental car. Justice Wein nevertheless found that “ownership is not a prerequisite to a privacy interest” and, even without proper authority to drive the vehicle, an applicant with “at least a colour of right defence” has standing to raise a section 8 Charter issue (at paragraphs 52-53).

[35] In the circumstances of this case it is apparent that Mr. Grant had a reasonable expectation of privacy over the rental vehicle. He subjectively would have held this belief and it was objectively reasonable in the circumstances. He thus has standing to challenge the warrant authorizing the search.

Reasonable Grounds

[36] The valid of issuance of a search warrant requires reasonable grounds to believe an offence has been committed and that evidence of the offence will be found at the place proposed in the search. This does not demand proof beyond a reasonable doubt or even proof on a balance of probabilities but rather a standard of “credibly-based probability”. The authorizing justice assesses these requirements by reference to the ITO as a whole and is entitled to draw reasonable inferences from the totality of the ITO.

R. v. Sadikov, 2014 ONCA 72 at para 81-82

[37] The Applicant has launched a facial attack on the validity of the search warrant. The scope of my analysis as a reviewing judge is limited. My role is not to determine whether the warrant should have issued, but rather to determine whether, based on the information contained within the ITO, the warrant could have issued.

R. v. Garofoli, [1990] 2 S.C.R. 1421

[38] Justice Hill in R. v. Ngo, 2011 ONSC 6676, [2011] O.J. No. 5023 at paragraph 34-35 collected a series of key general principles to guide a reviewing court and to summarize the meaning of “reasonable grounds”:

• A warrant is presumptively valid until the challenging party establishes that there was no basis for its issuance.
• A reviewing judge is not to engage in “examining the conduct of the police with a fine-tooth comb, fastening on their minor errors or acts or omissions, and embellishing those flaws to the point where it is the police conduct that is on trial rather than the sufficiency of the evidence in support of the application” (R. v. Nguyen, 2011 ONCA 465 at para. 57).
• Scrutiny of the ITO must take a holistic approach, assessing the document as a whole without devolving into a hyper-focussed examination of isolated passages.
• Police officers are not trained legal draftspersons and should not be held to the exacting standards of lawyers nor are they expected to “spell out things with the same particularity of counsel”.
• Perfection is not the standard against which the ITO should be measured.
• The ITO must present reliable, balanced and material facts supporting the affiant’s belief in a clear and concise manner. It need not include every minute detail of a police investigation.
• Credibly-based probability does not equate to proof beyond a reasonable doubt or to a prima facie case, though it is more than mere suspicion.
• Whether an affiant subjectively had grounds of belief, and whether those grounds are objectively reasonable, is a fact-specific determination to be made on a case-by-case basis.
• Grounds of belief are to be considered in their totality and not hived out in isolation. The cumulative effect of individual grounds can form a valid basis for the issuance of a warrant.
• The affiant’s experience is relevant to the formation of their reasonable grounds. A trained officer is entitled to draw inferences and make deductions drawing from their experience which a reviewing court must take into account.
• The issuing justice is entitled to draw reasonable inferences from stated facts without the informant underlining or explicitly stating the obvious.

[39] The Applicant contends that the standard for issuance of a warrant – reasonable probability to believe – has not been met and thus the warrant could not have been issued by the authorizing justice.

[40] The Applicant relies on the affiant’s use of the phrase, “I believe it is possible investigators may have missed the firearm in the Ford Edge” (emphasis added). Clearly if the affiant failed to establish reasonable probability to believe that a firearm would be located in the vehicle, the warrant is deficient and cannot stand.

[41] The Applicant argues that the conditional language of this wording is not, in and of itself, the problem. The issue is that this language signifies the factual reality – that, on the facts presented in the ITO, no credibly-based probability existed to believe that a firearm would be found in the car.

[42] Equivocal terminology in search warrants such as “may” has received differing interpretations based on a contextual analysis. In R. v. Adansi, 2008 ONCJ 144, [2008] O.J. No 1202 (OCJ) the affiant agreed during cross-examination that his meaning in specifying that the target “may store the firearm” was to convey “a suspicion that there is a possibility that a weapon or weapons, or things of that nature may be in his apartment” (at para. 49). In such a circumstance, Clark J. had no difficulty concluding that the word “may” was an acknowledgment by the affiant that he had raised a “possibility, not a probability” (at paragraph 62).

[43] However, in R. v. Campbell a statement that guns “may” be found on the premises was not, in and of itself, sufficient to override the whole of the ITO which made it clear that the affiant believed the evidence he sought “would” be found at the premise to be searched.

[44] The issue of conditional language in an ITO was recently addressed in R. v. Brown, 2021 ONCA 540. There the affiant sought a general warrant for covert entry into a storage locker and utilized language in the ITO which included “if controlled substances are located”, and “should the police discover a quantity of drugs”. The reviewing judge used phrases such as “was hoped” and “police hoped” which the appellant suggested implied reservation rather than the necessary credibly-based probability. Despite the use of “conditional terminology”, the appellate court found that the ITO on its whole set out a reasonable belief that evidence of drug trafficking would be located in the storage locker (at paragraphs 37-41).

[45] Probable grounds to believe a firearm would be located in the Edge are amply supported by the chronology set out in the ITO.

[46] On March 2, 2020 a conversation with El-Zahawi offering a gun is intercepted. In a further conversation later that evening pricing is discussed followed by surveillance observing El-Zahawi at a gas station meeting up with the driver of a Chevrolet Tahoe. No clear exchange is observed. The Applicant argues that this lack of clarity suggests the gun was transferred during this meeting, fatally undermining the probability of finding anything in the later search of Grant’s vehicle.

[47] The Applicant questions the evidentiary foundation for identifying El-Zahawi and others on the intercepts, arguing that the ITO contains no evidence which permits the inference that the persons identified by name are in fact who it is said they are. However, the Affiant clearly addresses this issue at paragraphs 14-16 of the ITO where he speaks to his reliance on the monitors of the intercepts and their protocols for the naming of identified voices. Contrary to the assertion of the Applicant, further evidence as to how the monitors concluded a particular voice matched a specific individual is not necessary to ground the Affiant’s reasonable belief in the identity of those conversing on the intercepts.

[48] The intercepts and surveillance continue on March 4, 2020 with a conversation verifying whether the firearm was ready for delivery. The Applicant contends that this conversation took place on March 2 based on the explicit language of paragraph 20 of the ITO. However, reading the totality of the ITO in context, it becomes clear that the reference to March 2 is a typographical error. The Applicant resists this conclusion arguing that any change to the date can only be accomplished via amplification through evidence which the Crown has not tendered.

[49] I disagree. The ITO’s chronology is set out in sequential order day-by-day and time-by-time. The footnoted sourcing for that chronology similarly relies on intercept and surveillance sessions which are sequentially numbered. Moreover, the “Affiant’s Note” following paragraph 21(a) references this very same conversation as an intercept from “the 4th of March 2020”. The only reasonable conclusion available upon a fair reading of the whole of the ITO is that paragraph 20 refers to a conversation taking place in the afternoon of March 4, 2020.

[50] In that conversation Khamo is confirming with El-Zahawi whether the firearm is ready and a further discussion about pricing takes place. The Affiant explicitly notes that “based on this communication, I believe that El-Zahawi had not yet trafficked the firearm”. This belief is entirely reasonable in the circumstances.

[51] El-Zahawi is later intercepted in a conversation in which he arranges for his “boy” to meet up and complete the sale at “Weston and Finch”. At 7:04pm the Ford Edge is seen at El-Zahawi’s home. El-Zahawi exits the car and enters his residence while the Applicant assumes the driver’s seat of the Edge. The affiant notes that he believes the “boy” El-Zahawi referenced is the Applicant, Mr. Grant.

[52] The Applicant attends an address in Pickering for six minutes before leaving again as the driver of the Edge. At 8:59pm he pulls into the gas station at 3514 Weston Road where the Chevrolet Tahoe previously observed meeting with El-Zahawi two days earlier is waiting for him.

[53] The Applicant exits the Edge, speaks to the occupant of the Tahoe with his hands through the window. He then retrieves an item from the trunk of the Edge and returns to the Tahoe again placing his hands through an open window.

[54] At 9:03pm both the Applicant and the occupant of the Tahoe, Ali Reza Beyreghian (presumably the “Ali” alluded to in previous intercepts as the buyer), are arrested. The Tahoe and its occupant are searched revealing $1500 cash and six rounds of ammunition. A search incident to arrest of the Edge reveals nothing.

[55] An intercepted call on the evening after the Applicant’s arrest captures El-Zahawi speaking to an unknown male. The two have a coded discussion questioning whether “they got him with the blicky” (firearm) which may have been found in his “whip” (vehicle). Based on the timing, language, and participants on the call, one entirely reasonable inference available to an issuing justice was that this call related to Mr. Grant and expressed concerns that the gun might still be in the Ford Edge.

[56] The totality of the circumstances, including the surveillance, pre-arrest and post-arrest intercepted communications, and the observations and seizure of ammunition and cash during the arrest, all make it abundantly clear that the affiant reasonably believed there was a firearm still in the Ford Edge which the initial search incident to arrest had missed.

[57] The Affiant’s statement that “it is possible investigators may have missed the firearm in the Ford Edge” is not a dilution of his reasonable grounds to believe the gun was in the car. Instead it is offered as an explanation to the issuing justice as to why, despite finding nothing during the search incident to arrest, the Affiant continued to reasonably believe that the gun was still in the car.

[58] A fair reading of the totality of the ITO supports this credibly-based probability which is not fatally undermined by the Affiant’s mischaracterization of it as “possible” rather than “probable”. The use of “conditional terminology” cannot negate evidence of reasonable probability that is apparent throughout the entirety of the ITO. R. v. Brown, 2021 ONCA 540 at para. 40-41.

[59] The Applicant seeks to amplify the record by pointing to an email sent by the Affiant to the justice considering the warrants in which he again uses conditional language saying, “it is believed a firearm may be in this residence”. The Affiant then expresses a need for urgency stating “there is a strong likelihood that evidence could be disposed of” as police believe the home to be searched is presently occupied.

[60] Comparing these two statements the Applicant asserts that the Affiant intends the plain conditional meaning of “may” and “possible” when he uses those terms, and uses the more definitive language of “strong likelihood” when he intends to convey greater certainty in reference to the risk of destruction of evidence.

[61] In my view the email must be in read in the context of the totality of the ITO and the exigent circumstances that gave rise to the Affiant’s request for nighttime execution of the warrants. While there was no rush in relation to the impounded vehicle, the occupied home presented a potentially volatile situation.

[62] The Affiant’s email to the justice is entirely consistent with the tenor of the ITO. The Affiant reasonably believed, based on the surveillance and intercepts both pre and post Grant’s arrest, that the firearm referenced in those calls remained at large. There are only two places that firearm could reasonably be: the residence Grant was seen to stop at prior to the gas station meeting, or still in the car he drove to that rendezvous.

[63] All of this is consistent with the Affiant’s opening statement in the ITO at paragraph 3: “I believe that additional evidence of these offences will be located in the places that I am seeking to search” (emphasis added).

CONCLUSION

[64] Having found that there is no defect undermining the issuance of the warrant, I find that there has been no violation of the Applicant’s section 8 right and thus no need to perform an analysis under section 24(2).

[65] The firearm seized during the search of the Ford Edge is admissible at trial.

Released: September 2, 2021 Signed: Justice E. Prutschi

[1] In the ITO at paragraph 20 this date is written as “2nd of March 2020”, however the chronology of the ITO, its footnoted sourcing, and the balance of the document, make it clear that this paragraph should correctly reference March 4. Further detail on how I reach this conclusion is contained at paragraphs 48-49 of these reasons.