COURT FILE NO.: CR-17-30000369-0000 DATE: 20170515 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – MICHAEL MAJEED Applicant
COUNSEL: J. Hanna, for the Crown C. Bottomley, for the Respondent
HEARD: May 10, 2017
JUSTICE NAKATSURU:
A. INTRODUCTION
[1] The applicant, Michael Majeed, stands charged with a series of fraud-related offences that were laid as a result of a police investigation named Project Terrier. The police obtained a search warrant dated November 22, 2012, to enter the applicant’s home. They seized an internet router. The defence challenges the validity of the search warrant under s. 8 of the Charter as an unreasonable search and seizure. They argue that the admission of the evidence obtained as a result of that search could bring the administration of justice into disrepute and should be excluded.
[2] I granted leave for the applicant to cross-examine D.C. Thayalan, the affiant who swore the Information to Obtain (ITO) for the search warrant.
[3] For these reasons, I am not satisfied that the applicant has proven a violation of his s. 8 right.
B. RELEVANT LEGAL PRINCIPLES TO BE APPLIED
[4] Let me begin by again reminding myself of my proper role as a reviewing judge. This is clearly set out in the seminal case of R. v. Garofoli, [1990] 2 S.C.R. 1421 at p. 1452:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
[5] It is trite but fundamental that given the ex parte nature of the proceeding, the affiant owes a duty to be full, frank, and fair when setting out the factual basis in his request for the search warrant.
[6] In this case, the applicant’s sole argument is that the search warrant is invalid based upon the residual discretion of a judge on a Garofoli review. The applicant does not take any issue with the statutory preconditions for the search warrant. No excision or further amplification of the ITO is requested. This residual discretion was explained in the recent decision of R. v. Paryniuk, 2017 ONCA 87, [2017] O.J. No. 474 at para. 69. Watt J.A. stated:
What is clear, however, is that previous authority in this court has recognized a residual discretion to set aside a warrant despite the presence of a proper evidentiary predicate for its issuance where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like.
[7] While the existence of this discretion is clear, the exact threshold for its exercise and the factors that should guide the judge are not. There is no doubt that the threshold is a high one. As Watt J.A. stated in Paryniuk at para. 70:
These same authorities, both in Ontario and elsewhere, describe the standard to be met to invoke this discretion as high. Indeed, some require that the conduct amount to an abuse of process: Vivar, at para. 2; Bacon, at para. 27.
[8] Paryniuk makes it patent that the applicant is not required to meet a “clearest of cases” threshold. Such a standard is limited to the application of the remedy of a stay of proceedings. But at the same time, when discussing how exclusion of the evidence in Paryniuk would have cratered the Crown’s case, Watt J.A. noted that such language may not be inappropriate to convey the threshold standard required for a judge to exercise such residual discretion.
[9] The main point I take from the authorities is that I must be satisfied that the conduct of the affiant was such that it subverted the pre-authorization process. That it undermined, corrupted, weakened, or destroyed the integrity of that process. While the parameters of such a standard may not be easily discernable in advance, once a contextual analysis is conducted of the particular circumstances of the case, the conclusion of subversion is fundamental. It may not come up very often. I may not be able to imagine a set of stock factors that will always prevail in concluding the test has been met. But hopefully I will know it when I see it.
[10] With respect to the relevant factors to consider, Paryniuk lists deliberate non-disclosure, bad faith, deliberate deception, and fraudulent misrepresentation. Deliberate and fraudulent errors are obviously important. A pattern of conduct may be more destructive than isolated mistakes. However, this list is not foreclosed. I accept the applicant’s submission that serious errors committed even without the intention to mislead or deceive the issuing justice may be relevant. Nor do they have to be deliberate. Even negligent or careless errors depending on their nature and gravity may be subversive. Key in the contextual analysis is their effect upon the integrity of the process.
[11] The applicant suggested in argument that factors that inform the s. 24(2) Charter analysis could be used to determine this issue. Factors such as the seriousness of the state-infringing conduct, the effect upon the subject’s interests protected under s. 8, and society’s interest in seeing a trial on the merits. While perhaps some of these factors may prove to be useful in assessing the threshold issue, from a jurisprudential perspective, such an analysis seems illogical. To use the same analysis to invalidate the search warrant as to determine the admissibility of the fruits of the search is not only redundant but eviscerates the balancing that should be independently conducted under s. 24(2). At the same time, I would agree that it may be hard to envision evidence being admissible under s. 24(2) when a finding has been made that the affiant had subverted the pre-authorization process.
C. ANALYSIS OF THE EVIDENCE
[12] Let me address the evidence heard on this application. First of all, in broad strokes, the ITO that D.C. Thayalan presented to the issuing justice of the peace. In the summary of the allegations, D.C. Thayalan sets out information about small business loan frauds being committed from January to August of 2012 by a number of persons. It involved loan applications for fictitious businesses. Some were staged to appear real to the financial institutions. An individual known as Vikram Desouza was said to have acted as an accountant who conspired with others in these schemes. The affiant set out how these frauds were committed. The hub of the fraudulent activity was through an organization known as Yorkshire Capital which had vanished from their leased premises but left behind some abandoned incriminating documents. It was the affiant’s belief that this Mr. Desouza was the applicant, Michael Majeed. The applicant had been employed as a business loan officer with banks. On August 28, 2012, a photo lineup was conducted with a loan officer who had dealt with Mr. Desouza on one such fraud. The loan officer picked out the applicant as Mr. Desouza. The affiant then lists other evidence inculpating the applicant in these frauds and some banking records obtained as a result of production orders.
[13] The ITO has a structure and reads fairly well. It is not overly lengthy. It is more concise than verbose. It is also not free of error. It contains some spelling and grammatical mistakes. Normal human failing. D.C. Thayalan also agreed in cross-examination that he got the dates of certain interviews he had with two witnesses wrong. The defence takes no issue with this. That said, these are not completely irrelevant to me. This is because D.C. Thayalan has testified that with hindsight, he wished he had done a better job drafting this affidavit. Some of these other minor deficiencies support his testimony that he could have done a better job. But this is far from the defence contention that the officer committed deliberate deceptions for the purpose of misleading the justice. The fact that there are other parts of the ITO that support a certain degree of carelessness makes the officer’s testimony that the impugned paragraphs were not calculated deceptions more believable. In other words, the fact that there are other minor errors better supports a finding of a lack of experience or care than they support purposeful deceit.
[14] D.C. Thayalan’s testimony under cross-examination did not reveal any obvious credibility concerns. He weathered the questions well. He denied any improper motive, fraud, deliberate deception or conduct intended to subvert the process. In my view, he was believable on these points. I will get into more detail.
[15] D.C. Thayalan was cross-examined on the following averment:
Based on information I received about Michael Majeed from D/C Grierson and from various law enforcement databases, including his physical description, his appearance, his demeanor, and his background, I believed that Michael Majeed was Vikram Desouza.
[16] This belief was important since there was a body of evidence that Mr. Desouza was involved in various fraudulent incidents. Therefore, D.C. Thayalan desired to connect Mr. Desouza to the applicant. That they were one and the same person. D.C. Thayalan was challenged on whether D.C. Grierson actually did tell him anything about the applicant’s description. D.C. Thayalan testified he did. This was so despite the fact he did not specifically note this down. This despite when asked about what D.C. Grierson said to him at the preliminary inquiry, D.C. Thayalan just mentioned information about the applicant’s name and background but not his appearance or description. In cross, D.C. Thayalan readily admitted he made an inadvertent omission at the preliminary inquiry. After assessing his testimony, I am inclined to accept that explanation. At the preliminary inquiry, he was not directly confronted with his potentially inconsistent averment. While D.C. Thayalan did not note down the description he said he received from D.C. Grierson, he did note down his contacts with D.C. Grierson.
[17] However, D.C. Thayalan admitted in his evidence that he did not get a specific description from the Halton Region officer. Rather, the conversation was along the lines that D.C. Grierson was investigating another fraud and when the two officers spoke about a general description of Mr. Desouza, D.C. Grierson confirmed that this looked like Michael Majeed. In addition, when crossed about the police databases consulted, given that the applicant had no prior criminal record or was arrested by the police, the officer did not get a description from such databases. The only database that did was the Ministry of Transportation’s driver’s licence database. This D.C. Thayalan used to conduct the photo line-up with a witness of a fraud. That witness picked out the applicant in a photo line-up.
[18] I find that D.C. Thayalan was candid in this part of his cross-examination. For instance, he conceded by setting out that other police fraud departments were interested in the applicant, this would convey that the affiant could be involved in other illegal activities. Although honest about it, given the passage of time, not much reliance can be placed on his recollection of the specifics of his conversation with D.C. Grierson. But the crucial point is that I accept that he and D.C. Grierson had some form of conversation along the lines the officer testified to. It would make sense that they would, given the state of their investigations.
[19] Further there was little reason for D.C. Thayalan to deliberately lie about this information given that he had an eyewitness in a photo lineup point out the applicant as the person he knew as Vikram Desouza. This was all the connection required for the purpose of the ITO. Little further would be added by this non-specific and general statement of D.C. Thayalan’s belief as set out in the above averment. Indeed given how little information and detail was provided as to how D.C. Thayalan came to this belief, the issuing justice could not reasonably place much reliance on it.
[20] However, that is not the point that the applicant wishes to make. I find that D.C. Thayalan did not deliberately deceive the issuing justice on this. I agree his phrasing was careless. He could not have discovered much information about Mr. Majeed’s demeanor from his sources of information. He did not likely get any information from any database except the Ministry of Transportation’s database. The information he likely received from D.C. Grierson was sparse. It was not much to go on in order to believe Mr. Desouza and Mr. Majeed were one and the same.
[21] A final point made by the applicant is that the affiant had drafted this passage in order to make the suggestion that Mr. Majeed was also suspected in Halton Region. D.C. Thayalan really did not deny this effect of the averment. However, in my view, there was nothing nefarious about this. The affiant was setting out the basis for his belief that Mr. Desouza and Mr. Majeed were one and the same. The fact that this may have involved another fraud investigation in a different region is a necessary part of the narrative in why he came to this belief. That does not involve any bad faith or deception. The real issue is that drafted in this very broad manner with such little detail, the issuing justice could not put much reliance in the belief of the officer. However, again, no complaint of this is being made on this Garofoli review.
[22] The second area D.C. Thayalan was crossed on was the following averment in the ITO:
During his interview, Mr. Agha described how in April 2012, he received funds from Mr. Majeed to transfer to another relative in Pakistan for work that relative had done for Mr. Majeed. The funds Mr. Agha received were directly obtained from a loan fraud.
[23] D.C. Thayalan testified that this was accurate. However, he conceded he did not provide further elaboration that was given by Mr. Agha in his interview. Mr. Agha’s relative in Pakistan had told him that the applicant was going to give him a cheque for past work done on a web design. It was Mr. Agha’s brother who physically brought him the cheque. It was Mr. Agha’s understanding that the applicant who lived close by to the brother was going to drop the cheque off there. Mr. Agha had no firsthand knowledge of the applicant giving the cheque.
[24] Under cross, D.C. Thayalan readily admitted that he should have elaborated more. Given his further experience now with drafting ITO’s, he would not have drafted that paragraph in the fashion that he did. In re-examination, he further explained how he had gotten better after four years of further experience.
[25] The final area of cross-examination had to do with the following paragraph of the ITO:
During his statement, Mr. Melhem spoke as to how between late 2011 and 2012, did [sic] had done renovation work at Daniel Kebbe’s house on Kilkenny Drive in Bradford. During his time there, Mr. Melhem saw on multiple occasions, Elias Rassi, Marlene Rassi (Elias Rassi’s wife), Michael Majeed and other persons I believe to be involved in the aforementioned offences at Daniel Kebbe’s house.
[26] In Mr. Melhem’s interview, he actually told the affiant that he had seen the applicant at the house of Daniel Kebbe, a suspected co-conspirator, “once or twice.” The applicant claims that this was seriously misleading and intended to falsely strengthen the affidavit.
[27] In cross, D.C. Thayalan explained that in drafting this paragraph, he had grouped all the individuals together and came up with “multiple occasions”. In other words, the times when Elias Rassi, Marlene Rassi, the affiant, and other persons involved in the frauds, were coming to Mr. Kebbe’s house was indeed multiple times. However, he agreed that when it came to the applicant alone, he was told that Mr. Melhem had seen him there only once or twice. He agreed that he should have broken down this group more specifically. He testified that he would not now do this in the same way.
[28] In my view, the disclosures made by D.C. Thayalan in these impugned paragraphs were not full or fair. He did not provide all the information he had about the source of Mr. Agha’s knowledge about the cheque. He did not fairly structure the information he received from Mr. Melhem. The manner in which he disclosed the information could well have led to an erroneous interpretation of these facts by the issuing justice.
[29] However, this finding alone is not enough. That is not the test that I must apply with respect to this residual discretion. I have closely assessed D.C. Thayalan’s testimony. He insisted he did not intend to mislead the justice of the peace. I accept that evidence. D.C. Thayalan was candid about his shortfalls. He provided reasonable explanations for those shortfalls. Given the other errors in the ITO, I accept it was a lack of care and thought which caused these shortfalls. He could have exercised more care and given more attention in the drafting of the ITO. But in the overall scheme of the ITO, these failings were minor. This is not a case where an affiant had strayed from his obligations in ex parte proceeding in order to get a search warrant based upon marginal information. Here the deficiencies do not reach the threshold required by the authorities.
[30] I find that D.C. Thayalan did not deliberately deceive or try to mislead the issuing justice. He did not make fraudulent misrepresentations or act in bad faith. While he failed to make complete disclosure, this was not deliberately done to mislead but arose out of a lack of care and/or inexperience. While I cannot condone carelessness, the overall conduct of D.C. Thayalan in drafting this ITO does not approach the degree of negligence required to invalidate the search warrant. In short, the applicant has failed to persuade me that the affiant has in any way subverted the integrity of the search warrant process.
[31] The s. 8 application is dismissed.
Justice S. Nakatsuru
Released: May 15, 2017
COURT FILE NO.: CR-17-30000369-0000 DATE: 20170515 ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – MICHAEL MAJEED Respondent
REASONS FOR JUDGMENT NAKATSURU J. Released: May 15, 2017
