Her Majesty the Queen v. Bashir Her Majesty the Queen v. Vaillant Her Majesty the Queen v. Thibault

[Indexed as: R. v. Muddei]

Ontario Reports Court of Appeal for Ontario Doherty, Zarnett and Coroza JJ.A. April 1, 2021

155 O.R. (3d) 1 | 2021 ONCA 200

Case Summary

Charter of Rights and Freedoms — Search and seizure — Interception of private communications — In 2016 police applying for wiretap authorization hoping to develop evidence regarding a 2009 murder investigation — No evidence acquired related to murder but two accused charged with drug-related offences and two others with charges arising from home invasion — Judges in each trial coming to different conclusions about whether authorization properly granted — Accused's appeal from conviction allowed and Crown's appeal from acquittal dismissed — Judge's decision to uphold authorization based on unsupported inference that targets of investigation maintained association after more than seven years — Police taking no other investigative steps in recent years before seeking authorization and affidavit in support of authorization not disclosing any concrete investigative plan to prompt communication among the targets — Evidence ought to have been excluded — Charter of Rights and Freedoms, ss. 8, 24(2) — Criminal Code, R.S.C. 1985, c. C-46, s. 186(1).

Charter of Rights and Freedoms — Remedies — Exclusion of evidence — In 2016 police applying for authorization for wiretaps related to a 2009 murder investigation — Interception resulting in two sets of accused being charged with offences unrelated to murder investigation — Judges in each trial coming to different conclusions about whether authorization properly granted — Accused's appeal from conviction allowed and Crown's appeal from acquittal dismissed — Judge's decision to uphold authorization based on unsupported inference that targets of investigation maintained association after more than seven years — Charter breach was at serious end of spectrum and affidavit inadvertently or carelessly misled the issuing judge about a material fact — First and second factor in Grant strongly favoured exclusion — Evidence ought to have been excluded — Charter of Rights and Freedoms, ss. 8, 24(2) — Criminal Code, R.S.C. 1985, c. C-46, s. 186(1).

In 2016, police decided to apply for an authorization to intercept the private communications of seven people in connection with a murder investigation arising from a 2009 shooting. Of the seven, five were believed to have been part of the group that included the shooter. The sixth had an apartment where the group of five went after the shooting. The seventh, W, having a boyfriend who knew some members of the group, had passed information about the murder to the police. The affidavit sworn in support of the authorization provided an account of the police investigation of the murder and described the association among the seven targets at the time of the murder and shortly thereafter. The authorization was granted in the terms requested in the application. The interceptions resulted in drug-related charges against two individuals, T and V, and unrelated charges against two other individuals, B and M, arising from a home invasion. In both cases, the accused sought to exclude the evidence obtained under the authorization on the grounds that the authorization was improperly granted under the Criminal Code and that the interceptions violated their rights under s. 8 of the Canadian Charter of Rights and Freedoms. The argument failed in the trial of T and V, and both were convicted. The argument succeeded in the trial of B and M, and both were acquitted. T and V appealed their convictions. The Crown appealed the acquittals of B and M.

Held, the appeals from the convictions should be allowed; the appeals from the acquittals should be dismissed.

The authorization should not have been granted. The issuing judge had to be satisfied that the affidavit contained reasonable and probable grounds to believe the named offence or offences were being or had been committed and that the interceptions would afford evidence of those offences. All parties to both appeals accepted that the affiant had reasonable grounds to believe that the shooting victim had been murdered and that the seven named targets were involved in, or had information pertaining to, the homicide. However, the key issue was whether the affidavit in support of the application for a wiretap authorization provided reasonable grounds to believe that the interception, 7.5 years after the murder, would provide evidence in relation to the homicide. The murder investigation had been stalled for years. The trial judge for T and V accepted the Crown's contention that one could reasonably infer that the association among the targets continued through 2016. Although a continued association was a real possibility, there was virtually no evidence of any contact among the targets for many years before the authorization application, and it did not follow that after more than seven years the targets were likely to maintain a level of familiarity and trust with one another. The information provided by the affiant, at its highest, raised a suspicion as to the continued relationship among the targets, but the police did almost nothing to try to turn that suspicion into reasonable belief before applying for the authorization. The trial judge for B and M correctly found no reasonable basis to infer an ongoing relationship among the targets. In the absence of reasonable grounds, the interceptions resulted in a breach of the s. 8 rights of the accused.

The evidence ought to have been excluded as a result of the s. 8 violation. The trial judge for B and M characterized the infringing state conduct at the more serious end of the spectrum. She found that the affidavit failed to provide any evidence upon which the issuing judge could reasonably draw any of the inferences necessary to satisfy the fundamental requirement of reasonable grounds to believe the authorization would afford evidence of the specified offences. She also observed that the affiant, through carelessness or inadvertence, unintentionally misled the issuing judge in respect of a material fact by making an unsubstantiated assertion of a continued connection between W and the other the targets of the proposed authorization. There was no basis on which to interfere with either finding. Furthermore, the accused were subject to a prolonged and pervasive invasion of their private communications, a fundamental component of personal privacy. As such, the judge properly excluded the communications based on both the seriousness of the infringing conduct and the impact of the breach. The Crown conceded that without the excluded wiretap evidence the convictions could not be maintained. The convictions were quashed and acquittals entered.

R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, 309 D.L.R. (4th) 1, 391 N.R. 1, J.E. 2009-1379, 253 O.A.C. 124, 245 C.C.C. (3d) 1, 66 C.R. (6th) 1, 193 C.R.R. (2d) 1, 82 M.V.R. (5th) 1, EYB 2009-161617, 2009 CCAN para. 10,053, apld

Other cases referred to

CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, [1998] S.C.J. No. 87, 171 D.L.R. (4th) 733, 237 N.R. 373, J.E. 99-861, 122 B.C.A.C. 1, 133 C.C.C. (3d) 426, 29 C.E.L.R. (N.S.) 1, 23 C.R. (5th) 259, 41 W.C.B. (2d) 411, 1998 CCAN para. 10,065; R. v. Araujo, [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65, 2000 SCC 65, 193 D.L.R. (4th) 440, 262 N.R. 346, J.E. 2001-74, 143 B.C.A.C. 257, 149 C.C.C. (3d) 449, 38 C.R. (5th) 307, 79 C.R.R. (2d) 1, 48 W.C.B. (2d) 65, REJB 2000-21474; R. v. Bashir, [2019] O.J. No. 3974, 2019 ONSC 4082, 445 C.R.R. (2d) 340 (S.C.J.); R. v. Bashir, [2019] O.J. No. 4316, 2019 ONSC 4937, 442 C.R.R. (2d) 275 (S.C.J.); R. v. Beauchamp, [2015] O.J. No. 1939, 2015 ONCA 260, 333 O.A.C. 87, 123 W.C.B. (2d) 262, 326 C.C.C. (3d) 280; R. v. Brown, [2021] O.J. No. 886, 2021 ONCA 119; R. v. Côté, [2011] 3 S.C.R. 215, [2011] S.C.J. No. 46, 2011 SCC 46, 342 D.L.R. (4th) 77, 421 N.R. 112, J.E. 2011-1739, 276 C.C.C. (3d) 42, 87 C.R. (6th) 1, 246 C.R.R. (2d) 213, 97 W.C.B. (2d) 17, EYB 2011-196883, 2011EXP-3108; R. v. Duarte (1990), 71 O.R. (2d) 575, [1990] 1 S.C.R. 30, [1990] S.C.J. No. 2, 65 D.L.R. (4th) 240, 103 N.R. 86, J.E. 90-263, 37 O.A.C. 322, 53 C.C.C. (3d) 1, 74 C.R. (3d) 281, 45 C.R.R. 278, 9 W.C.B. (2d) 230, 1990 CCAN para. 10,003; R. v. Finlay (1985), 52 O.R. (2d) 632, [1985] O.J. No. 2680, 23 D.L.R. (4th) 532, 11 O.A.C. 279, 23 C.C.C. (3d) 48, 48 C.R. (3d) 341, 18 C.R.R. 132, 15 W.C.B. 110 (C.A.); R. v. Garofoli, [1990] 2 S.C.R. 1421, [1990] S.C.J. No. 115, 116 N.R. 241, J.E. 90-1684, 43 O.A.C. 1, 36 Q.A.C. 161, 60 C.C.C. (3d) 161, 80 C.R. (3d) 317, 50 C.R.R. 206, 11 W.C.B. (2d) 342, 1990 CCAN para. 10,058; R. v. Hosie, [1996] O.J. No. 2175, 91 O.A.C. 281, 107 C.C.C. (3d) 385, 49 C.R. (4th) 1, 37 C.R.R. (2d) 97, 31 W.C.B. (2d) 251 (C.A.); R. v. Le, [2019] S.C.J. No. 34, 2019 SCC 34, 433 C.R.R. (2d) 248, 375 C.C.C. (3d) 431, 434 D.L.R. (4th) 631, 54 C.R. (7th) 325, EYB 2019-312010, 2019EXP-1537; R. v. Rocha (2012), 112 O.R. (3d) 742, [2012] O.J. No. 4991, 2012 ONCA 707, 268 C.R.R. (2d) 321, 296 O.A.C. 357, 97 C.R. (6th) 326, 292 C.C.C. (3d) 325, 103 W.C.B. (2d) 512; R. v. Sadikov, [2014] O.J. No. 376, 2014 ONCA 72, 314 O.A.C. 357, 300 C.R.R. (2d) 308, 305 C.C.C. (3d) 421, 111 W.C.B. (2d) 371; R. v. Strauss, [2017] O.J. No. 4084, 2017 ONCA 628, 141 W.C.B. (2d) 133, 353 C.C.C. (3d) 304, 39 C.R. (7th) 390, 393 C.R.R. (2d) 353; R. v. Szilagyi (2018), 142 O.R. (3d) 700, [2018] O.J. No. 4380, 2018 ONCA 695, 419 C.R.R. (2d) 158, 149 W.C.B. (2d) 584, 365 C.C.C. (3d) 461, 49 C.R. (7th) 54

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 8, 24(2) Criminal Code, R.S.C. 1985, c. C-46, Part VI [as am.], s. 186 [as am.], (1), (a), (b)

Authorities referred to

Hubbard, R.W., Mabel Lai, Peter M. Brauti and S.K. Fenton, Wiretapping and Other Electronic Surveillance: Law and Procedure, Vol. 1 (Toronto: Carswell, 2000)

APPEAL by two accused from convictions entered by T.A. Brown J. of the Ontario Court of Justice on February 19, 2019; Appeal by Crown from acquittals of two accused entered by Corthorn J. of the Superior Court of Justice on September 3, 2019.

Jeffrey Pearson and Deborah Krick, for appellant Her Majesty the Queen (C67481 & C67486). Howard L. Krongold, for appellant Mathieu Vaillant. James Foord and Brandon Crawford, for appellant Patrick Thibault. Diane Condo, for respondent Said Muddei. Soloman Friedman and Fady Mansour, for respondent Faysal Bashir. Jeremy Streeter and Alexia Bystrzycki, for respondent Her Majesty the Queen (C67512 & C67848).

The judgment of the court was delivered by

DOHERTY J.A.: —

I Overview

[1] These two appeals were heard together. In R. v. Thibault and Vaillant, the accused appeal from their convictions on drug-related charges. In R. v. Bashir and Muddei, the provincial Crown appeals from acquittals on charges arising out of an alleged home invasion. The two sets of charges are unrelated.

[2] Both prosecutions turned on the admissibility of communications intercepted pursuant to the same authorization granted under Part VI of the Criminal Code, R.S.C. 1985, c. C-46 in December 2016. In both cases, the accused sought the exclusion of the evidence obtained under the authority of the authorization. They maintained the authorization was improperly granted under the relevant provisions of the Criminal Code, and the interceptions of their private communications violated their rights under s. 8 of the Canadian Charter of Rights and Freedoms. The accused argued the evidence should be excluded under s. 24(2) of the Charter.

[3] The argument failed in R. v. Thibault and Vaillant. The trial judge found the authorization was properly granted, there was no s. 8 violation, and no reason to exclude the evidence. After the trial judge ruled the interceptions admissible, Thibault and Vaillant did not challenge the Crown's case. The trial judge entered convictions. Thibault and Vaillant appeal from those convictions.

[4] The argument succeeded in R. v. Bashir and Muddei. The trial judge found the authorization was not properly granted, rendering the interceptions a violation of s. 8 of the Charter. She further held the evidence should be excluded under s. 24(2): R. v. Bashir, [2019] O.J. No. 3974, 2019 ONSC 4082 (S.C.J.) ["R. v. Bashir and Muddei"]. Without that evidence, the Crown had no case and acquittals were entered. The Crown appeals from those acquittals.

[5] I agree with counsel that both trial judges cannot be correct. While different judges asked to grant an authorization on the same evidence might reasonably and properly come to different conclusions as to whether to grant the authorization, the decision of the reviewing judge as to whether the authorization could have been granted is a question of law, which admits of only one correct answer.

[6] Both trial judges delivered thoughtful reasons. They agreed the authorization was presumed valid and that, in reviewing the authorization, they must determine, not whether they would have granted the authorization, but rather whether the affidavit in support of the authorization provided an evidentiary basis upon which the issuing judge could have granted the authorization. The trial judges also agreed on the legal principles governing the interpretation of s. 186(1) of the Criminal Code, the provision setting out the criteria for granting an authorization.

[7] Both trial judges acknowledged the "reasonable grounds" requirement implicit in s. 186(1)(a) had to be assessed in the context of the specific investigation. In this investigation, the police sought an authorization in respect of a murder that had occurred 7 1/2 years earlier. The investigation had gone cold years before the police decided to seek an authorization. They proposed to use various investigative techniques to stimulate communication by and among the targets of the authorization, believing those communications would provide information relevant to the murder investigation.

[8] Justice Brown, the trial judge in Thibault and Vaillant, after a review of the affidavit sworn in support of the authorization application, concluded, at para. 63:

I conclude therefore that the issuing judge could reasonably have inferred on the information before him that the investigative plan proposed, including the use of the investigative techniques outlined, would afford evidence of the offence.

[9] Justice Corthorn, the trial judge in Bashir and Muddei, after a review of the same affidavit, concluded, at paras. 65-66:

In summary, there is no discrete evidence, no basis for a reasonable inference, nor any basis for judicial notice to be taken in support of a conclusion that the targets would, if communicating with another, communicate in a way that would afford evidence of the homicide.

Similarly, there is no discrete evidence, no basis for a reasonable inference, nor any basis for judicial notice to be taken in support of a conclusion that the targets would, in communication with other unknown persons, communicate in a way that will afford evidence of the homicide . . .

[10] For the reasons that follow, I agree with the conclusion of Corthorn J. It is certainly possible a person implicated in a serious crime committed years earlier may, if stimulated by police activity, communicate with others who were involved in, or had knowledge of, that crime. However, that possibility alone cannot be enough to warrant the granting of an authorization to intercept private communications. Were the possibility the police could stimulate communications about the offence enough, individuals who the police reasonably believed to have been involved in a crime years earlier, or perhaps to have been in communication with others involved in a crime, would remain subject to seriously intrusive state invasions of their privacy, as long as the investigation of the crime remained open and the police could think of something that might possibly stimulate communications relevant to the crime.

II The Murder Investigation

[11] Mohamed Ali was shot and killed in a busy downtown Ottawa bar on May 7, 2009. Wayne Morgan, an employee of the bar, was shot in the arm.

[12] The police investigation of the murder is reviewed in detail in the affidavit sworn in support of the authorization application. According to the affidavit, a fight broke out in the bar between two groups of men. Apparently, one man in each group had been involved with the same woman. After a physical altercation, shots rang out. Two guns were used, but one misfired. Mr. Ali, who was associated with one of the two groups, may or may not have been an intended target. Mr. Morgan was hit by a stray bullet.

[13] Information gathered during the investigation indicated that Adnan Fazeli, Faysal Bashir, Rafat Mohamed, Saeed Sheikhdoon and Christian Thibault were in the bar shortly before the shooting. The investigation pointed to Mr. Bashir as the likely shooter and perhaps the leader of that group. Other information suggested Rafat Mohamed was the shooter. I will sometimes refer to these five individuals collectively as the "group". Mr. Ali was with the other group involved in the confrontation at the bar.

[14] The police interviewed and re-interviewed many witnesses, gathered forensic evidence and employed a variety of other investigative techniques in the weeks and months following the murder. These techniques included an undercover operation, which proved unsuccessful, additional interviews, surveillance, obtaining of production orders and search warrants, inquiries of various confidential informants and resort to Crime Stoppers tips.

[15] The shooting appeared to be gang related. The investigation was hampered by the reluctance of many individuals, including persons in the bar, to speak with the police about the incident.

[16] The police interviewed Ashley Windebank in January 2010. Her boyfriend knew Mr. Bashir and other persons in his group. Ms. Windebank told the police she did not see the altercation in the bar but was privy to a conversation later that night involving the group. In the conversation, Adnan Fazeli said he had been struck in the face during the fight in the bar. He pulled his gun out, intending to shoot his assailant, but the gun misfired. Mr. Bashir said when Fazeli's gun misfired, he shot Mr. Ali. According to Mr. Bashir, Mr. Ali got what he deserved. Forensic evidence confirmed that two guns were used in the shooting, and one had misfired.

[17] Ms. Windebank told the police the gun used by Mr. Bashir belonged to her boyfriend who was in custody. She was asked to pick up the gun at the home of Mr. Bashir's mother. When Ms. Windebank saw the gun, it had blood on it so she refused to take it. The affidavit does not indicate when Ms. Windebank was asked to pick up the gun, or when she saw the gun.

[18] The police re-interviewed Ms. Windebank in May 2014. She said the conversation she had described in her first interview took place at the apartment of Ahmed Mahfud. Ms. Windebank also told the police the murder weapon, a 9-millimetre handgun, had been buried in the forest near Vanier. The affidavit does not indicate who told Ms. Windebank the gun had been buried, or when she got that information.

[19] The police interviewed Hendrick Alvaro-Raul in June 2012. He told them about a conversation he had with Rafat Mohamed in September 2011. According to Mr. Alvaro-Raul, Mr. Mohamed told him the fight started when Mr. Fazeli and a person from the other group were arguing about a woman. Mr. Ali attempted to stop the fight. Mr. Bashir told Mr. Mohamed to "let it go" if the fight got out of control. Mr. Mohamed said he then took out his gun and shot Mr. Ali. At some unspecified time, Mr. Mohamed promised to look after Mr. Alvaro-Raul if he did not tell anybody about Mr. Mohamed committing the murder.

[20] Information from confidential informants confirmed, that at the time of the murder, Fazeli, Bashir, Rafat Mohamed and Thibault were a "crew" and regularly associated with each other. One informant (informant #4) told the police in September 2012 that the gun used in the murder had been buried by Rafat Mohamed. The informant did not indicate his source of the information about the gun, or when he received that information.

III The Authorization

[21] By November 2016, the investigation into the murder had been cold for years. The police decided to reinvigorate their murder investigation by applying for an authorization to intercept the private communications of several people. The affidavit sworn in support of the authorization offers no specific reason for seeking an authorization some 7 1/2 years after the murder, although the affiant indicated Mr. Bashir, who had been in jail since 2010, had been released and returned to Ottawa some time before August 1, 2016. The named targets of the authorization, with the exception of Mr. Sheikhdoon, lived in Ottawa.

[22] The application sought to intercept communications in respect of Mr. Ali's murder and related ancillary crimes. It identified seven named targets. These included the five persons who were believed to have been part of the group that included the shooter. They were:

• Adnan Fazeli;
• Faysal Bashir;
• Rafat Mohamed;
• Saeed Sheikhdoon; and
• Christian Thibault.

[23] In addition to the five persons believed to have been involved in the shooting, the application sought to intercept the private communications of Ahmad Mahfud and Ashley Windebank. The group went to Mr. Mahfud's apartment after the shooting. Ms. Windebank was at the apartment with the group. As outlined above (paras. 16-18), Ms. Windebank had passed information about the murder on to the police in 2010 and in 2014.

[24] The application sought to intercept the verbal and non-verbal communications of the seven targets at their residences. It contained "basket" clauses with respect to unknown persons and other places. In addition, the application sought permission to employ a wide variety of other investigative techniques.

[25] The affidavit provides a detailed account of the police investigation of the murder. That account makes it clear the police had gathered very little information about the homicide for many years prior to bringing the application for the authorization. The last pertinent information appears to have come from Ms. Windebank in June 2014. Prior to that contact, the police had not received any information since the summer or early fall of 2012.

[26] The affidavit also describes the association among the seven targets at the time of the murder and shortly thereafter. It says virtually nothing about any association or contact among them in the several years preceding the application for the authorization. There is nothing in the affidavit indicating any of the targets have spoken with each other about the homicide, or for that matter anything else, since shortly after the murder. The affidavit is also silent about any communications by any member of the group with any person not in the group referable to the homicide after September 2011 when Mr. Mohamed spoke with Mr. Alvaro-Raul.

[27] The affiant does indicate that Mr. Fazeli, Mr. Sheikhdoon and Ms. Windebank were arrested in September 2011-2012 as a result of a "guns and gangs" project conducted by the Ottawa police. The affiant does not provide any particulars. He does not say whether the three individuals were jointly charged, or whether their charges were in any way connected to each other. Police projects can result in multiple arrests arising out of different criminal activities.

[28] The affiant also asserts a belief in an ongoing connection between Ms. Windebank and the other named targets. He writes:

I believe Windebank continues to maintain contact with this group and would be subject to investigative prompting to gather evidence of the homicide.

[29] The affiant does not provide any grounds for his belief that Ms. Windebank continues to be in contact with any member of the group. There is no specific assertion Ms. Windebank had any contact with the other named targets except on the night of the shooting. Other references in the affidavit suggest Ms. Windebank had some subsequent contact with one or more of the targets at unspecified times. However, any contact Ms. Windebank had with the targets was at least 2 1/2 years before the application for the authorization was made.

[30] It is implicit in the affidavit that the affiant saw little possibility that the targets of the proposed authorization would spontaneously begin to communicate concerning the murder that had occurred 7 1/2 years earlier. The affiant outlined an investigative plan intended to generate communications by and among the targets. Those communications could then be intercepted under the authority of the proposed authorization. The affiant described, in very general terms, different investigative techniques that might be used to stimulate communication. He also indicated, that as the investigation progressed with the aid of the authorization, the police might employ other techniques to stimulate communications.

[31] As the proposed investigative plan is central to whether the police had reasonable grounds to believe the interceptions would afford evidence of the homicide, I will set out the relevant paragraphs in full:

321. Interception of private communications will be utilized at the outset in an information-gathering manner to determine the state of mind, activities, associates and tendencies. This will be augmented and supported by other investigative techniques including physical surveillance.

Information Release

322. Investigators will approach some of the identified targets of interceptions or some of their associates for the purpose of conducting interviews in relation to this now historical homicide. Investigators will provide some detail of the investigation and inform these individuals that the Ottawa Police Service are now aggressively pursuing cold case homicide investigations. At the same time, investigators may relay some details about the investigation. This information may consist of surveillance, photographs or police reports. It is anticipated the information relayed and the contents discussed. It is anticipated the discussion will revolve around what evidence is believed police do or do not have.

Media Release

323. Although police have already appealed to the public via the media, investigators may conduct new media release, renewing its pledge to offer financial rewards for certain unsolved homicides, which include this homicide. In a year where Ottawa has seen multiple gang-related homicides, a focus may be but on this unsolved as an example of how the community has failed to assist and refused to provide information to the police.

Interviews with Persons of Interest

324. Investigators will approach some of the subjects of this investigation and speak to them about other unsolved homicides they have a connection to. The purpose of this is to stimulate conversation about unsolved homicides in Ottawa. While speaking about these other cases, investigators may reference this investigation as an example of what happens when people do not cooperate with the police.

Polygraph Stimulation

325. Several interviews have been completed in regards to this investigation and investigations will continue to approach individuals who are persons of interest connected to this investigation. Investigators will attempt to interview these individuals and during these interviews, investigators will challenge the truthfulness of these persons' statements. Investigators will question them as to their knowledge of the murder of Mohamed Ali. The persons of interest will be given the option of taking a polygraph test to determine their truthfulness. Investigators have two polygraph examiners available to them. The tests will be conducted at Ottawa Police Service facilities depending on the availability of the persons of interests.

[32] Stripped to its essentials, this investigative plan contemplates:

• speaking to named targets or associates and expressing renewed interest in Mr. Ali's murder, or other unresolved murders, while at the same time providing information in respect of Mr. Ali's murder, or the other unsolved homicides (paras. 322, 324);
• possible fresh media coverage of the homicide and other unsolved homicides, as well as the possible renewal of a financial reward for information in respect of the homicide (para. 323); and
• interviews with persons of interest connected to the investigation. During those interviews, the police may challenge the credibility of the information that has been provided by those witnesses and give them the option of taking a polygraph test (para. 325).

[33] On December 2, 2016, Kane J. granted the authorization in the terms requested in the application. The authorization did not generate evidence sufficient to lay any charges in respect of Mr. Ali's murder. It did, however, provide evidence of the charges giving rise to these appeals.

IV Should the Authorization Have Been Granted?

[34] Section 186(1) sets down the two prerequisites to the granting of an authorization. The issuing judge must be satisfied:

(a) that it would be in the best interests of the administration of justice to do so; and

(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

(i) Section 186(1)(a): The reasonable grounds requirement

[35] The "best interests of the administration of justice" requirement in s. 186(1)(a) has been interpreted as imposing the constitutionally mandated "reasonable and probable grounds" standard. The issuing judge must be satisfied the affidavit contains reasonable and probable grounds to believe the named offence or offences are being or have been committed and that the interceptions will afford evidence of those offences: R. v. Finlay (1985), 52 O.R. (2d) 632, 23 C.C.C. (3d) 48 (C.A.), at p. 70 C.C.C.; R. v. Duarte (1990), 71 O.R. (2d) 575, [1990] 1 S.C.R. 30, at p. 45 S.C.R.; R. v. Garofoli, [1990] 2 S.C.R. 1421, at paras. 35-36, 69; R. v. Beauchamp, 2015 ONCA 260, at paras. 90-91.

[36] All parties to both appeals accept the affiant had reasonable grounds to believe Mr. Ali had been murdered, and that the seven named targets were involved in, or had information pertaining to, the homicide. They join issue on whether the affidavit demonstrates reasonable grounds to believe interceptions of the private communications of the targets, some 7 1/2 years after the homicide, would provide evidence in respect of that homicide. More precisely, they disagree over whether the affidavit contained sufficient evidence that might reasonably be believed to provide a basis upon which the issuing judge could have been satisfied the interceptions would afford evidence of the murder: Beauchamp, at para. 87; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at pp. 1016-1019 S.C.R.

[37] The reasonable and probable grounds standard, also referred to as the probable cause requirement, requires more than suspicion, but less than proof on the balance of probabilities: Beauchamp, at paras. 90-92. There must be a "credibly-based probability" the interceptions will afford evidence of the named offences. The affidavit must be read as a whole and an issuing judge may draw common sense inferences from the information provided. The review of the validity of the authorization begins from the premise that the order was properly granted: Garofoli, at para. 35; R. v. Sadikov, 2014 ONCA 72, at paras. 81-83; R. v. Hosie (1996), 107 C.C.C. (3d) 385 (C.A.), at p. 391 C.C.C.; R. v. Brown, 2021 ONCA 119, at paras. 33-34.

[38] An interception "will afford evidence" if the communications to be intercepted shed light on the circumstances relating to the alleged offence, or the involvement of the named targets in the offence. The interceptions need not provide evidence that would be admissible at a trial: R.W. Hubbard, Mabel Lai, Peter M. Brauti, S.K. Fenton, Wiretapping and Other Electronic Surveillance: Law and Procedure, Vol. 1 (Toronto: Carswell, 2000) (Loose-leaf at 4-2.6); CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, at para. 15.

[39] The line of reasoning said to justify the authorization rests on three propositions. The first two were not controversial:

• there were reasonable grounds to believe five of the named targets (the "group") were involved in the murder;
• there were reasonable grounds to believe all seven targets had knowledge about the circumstances surrounding the murder and had been privy to conversations about the murder in September 2011 or earlier; and
• there were reasonable grounds to believe one or more of the stated stimulation techniques would generate communications relating to the murder, either among the targets, or by one or more of the targets, with persons unknown.

[40] The probability of the stimulation techniques described by the affiant generating communications relevant to the murder investigation requires a consideration of the status of that investigation when the authorization was sought, the ongoing relationships, if any, among the targets, the possibility of communications in respect of the homicide by one of the named targets with other unknown persons, and the specifics of the proposed stimulation plan put forward in the affidavit.

[41] The murder investigation had been stalled for years. The police had uncovered no new information since May 2014, when Ms. Windebank provided information about the location of the murder weapon. Prior to speaking with Ms. Windebank in May 2014, the police had not developed any new information since the summer of 2012. The affidavit does not refer to any significant active investigative steps taken by the police in anticipation of applying for an authorization. The renewed police interest in the murder investigation in the fall of 2016 had not generated any new leads or evidence pertaining to the murder. It is fair to say the investigative trail was about as cold as it could get when the police decided to seek an authorization.

[42] The affidavit contained no direct evidence of any ongoing relationship among the targets of the authorization. The Crown contended, however, that, on the totality of the evidence, one could reasonably infer the association among the targets, especially the five who made up the group, continued as of December 2016.

[43] Justice Brown accepted the Crown's position, indicating, at para. 50:

Both the officer and the issuing justice were entitled to rely on their experience and common sense in concluding that persons who commit crimes together are likely to maintain a level of familiarity and trust with one another that persists after the commission of those crimes.

[44] Certainly, on the information provided in the affidavit, the continued association among the targets as of December 2016 was a real possibility. I cannot accept, however, that the common sense inference described by Brown J. existed on the facts of this case. The relevant events occurred 7 1/2 years earlier. As I will explain in more detail below, there was virtually no evidence of any contact among the targets for many years prior to the authorization application. In those circumstances, it does not follow from association 7 1/2 years earlier that the targets were "likely to maintain a level of familiarity and trust with one another".

[45] The line between speculation and inference can sometimes be difficult to draw, as can the line between credibly-based probability and suspicion. In my view, the information provided by the affiant, at its highest, raised a suspicion as to the continued relationship among the targets. On my reading of the affidavit, the police did almost nothing to try and turn that suspicion into reasonable belief before applying for the authorization.

[46] Justice Brown did not rely only on what he described as the common sense inference of an ongoing relationship. He found support for that inference in some of the information provided by the affiant. Justice Brown relied on the evidence of Bashir's return to Ottawa some time before August 2016, the arrest of three of the targets (Ms. Windebank, Mr. Sheikhdoon and Mr. Fazeli) in 2012 on drug charges, and Ms. Windebank's supposed ongoing association with the group. Justice Brown described Ms. Windebank "as an important character in the investigation" (para. 62).

[47] The three facts identified by Brown J. do not add any weight to the inference of an ongoing relationship among the targets. Bashir had been back in Ottawa since at least August 2016. The affidavit provides nothing to indicate Bashir had reconnected with any members of his old "crew" during the several months he had been back in Ottawa. In fact, the affidavit does not suggest the police took any investigative steps to determine whether Bashir had reconnected with any of his old associates.

[48] With respect to the arrest of three of the targets in 2012 on drug charges, Brown J. erroneously describes the three as "co-accused". The affidavit does not say they were co-accused. Rather, it indicates the three targets were charged with drug offences "in relation to" the same "guns and gangs" police project. The affiant provides no details of the facts underlying the charges and does not state the three individuals were co-accused, or even involved in the same or related drug activity.

[49] It was not for the issuing judge to speculate about the relationship, if any, among the three targets arrested in 2012. Rather, it was for the affiant to set out the nature of that relationship, if one existed. The mere fact that three of the targets were arrested in the course of the same police operation does not say anything about the existence of an ongoing relationship among them. In any event, the arrests occurred more than four years before the police applied for the authorization.

[50] I also cannot accept that the affidavit provides a basis for inferring an ongoing connection as of December 2016 between Ms. Windebank and any of the other targets. The affiant's statement that Ms. Windebank "maintained contact" with the group was unsupported by anything in the affidavit. What the affidavit does tell the reader is that Ms. Windebank was present when the group discussed the murder at Mr. Mahfud's apartment on the night of the murder. The affidavit also indicates that Ms. Windebank had contact with one or more members of the group after the night of the murder. The affidavit does not indicate how many contacts were made, or when they occurred. It would appear, however, that any contact was relatively shortly after the homicide and certainly before Ms. Windebank spoke to the police in 2014.

[51] The affidavit offers no support for the suggestion that Ms. Windebank was likely to reach out to any of the other targets if prompted by the police. Furthermore, even if she did, there is no basis to infer any of them would have reacted or responded.

[52] Mr. Streeter, Crown counsel in Thibault and Vaillant, offers several arguments in support of the submission that it was reasonable to infer an ongoing relationship among the targets of the authorization, or at least the group who were all believed to have been involved in the homicide. Counsel submits the evidence showing an involvement in the homicide in and of itself goes a long way to support the inference the targets would communicate about the homicide if prompted.

[53] The reasonableness of that inference depends on the circumstances. Clearly, the inference would be reasonable if the homicide was relatively recent, or there was other evidence that the targets continued to associate. Neither fact exists here. To the contrary, the offence occurred long ago and there is no evidence of any communication among the targets for several years.

[54] Crown counsel further submits that the affidavit shows the targets have a "history" of discussing the homicide with others. The Crown contends this "history" lends credence to the inference that they would continue to do so after December 2016.

[55] The "history" as revealed by the affidavit comes down to perhaps three or four conversations with individuals who were not part of the group in the 7 1/2-years since the murder. All of those conversations occurred more than four years before the application for the authorization. I regard this more as a "history" of non-communication with persons outside of the group.

[56] Crown counsel also submits that it was open to the issuing judge to infer an association among the targets as of December 2016 because all but one of the targets was back in Ottawa and it would be relatively easy for them to reach each other and reunite the "crew". While the facts relied on by the Crown give rise to a possibility the targets may have re-established their contacts, those facts alone do not permit an inference that a reunion had probably occurred. The police could have taken relatively straightforward investigative steps to confirm any existing association among the group as of the summer and fall of 2016. They chose not to do so.

[57] Justice Corthorn, in her reasons, found no reasonable basis to infer an ongoing relationship among the targets. She said, at para. 52:

The passage of 4.5 years from the date on which there is any evidence of communications by one of the targets about the homicide, without any evidence of ongoing contact between the targets, renders unreasonable an inference that the targets remained in communication with one another as of the latter half of 2016.

[58] I agree with this conclusion.

[59] In upholding the authorization, Brown J. correctly observed the Crown was not obligated to prove the likelihood of contact among the targets. It would have been sufficient to show a credibly-based probability of communication by a target with anyone else in respect of information relevant to the homicide investigation. He said, at para. 53:

In other words, the issuing judge was required only to be satisfied that the targets of the wiretaps, when appropriately stimulated, would discuss the Bar 56 incident among themselves or with other people they trusted. It would not have been unreasonable for a detached experienced judicial officer considering the wiretaps application before him to recognize that prompting strategies when properly employed can be highly effective means of inducing the targets of those strategies to reach out by phone in response to them.

[60] No one would quarrel with the statement that persons suspected of offences, who are prompted by police investigative techniques, sometimes communicate with others about those offences. Prompting can induce communications with other targets, or unknown third parties. However, it cannot be inferred that, because prompting sometimes works, there is a reasonable probability it will work in any given case. The availability of that inference must depend on the circumstances. Those circumstances include the details of the prompting plan.

[61] Although Brown J. would have upheld the validity of the authorization, he was critical of the investigative plan put forward by the affiant [at para. 59]:

I agree with the applicants that the investigative plan outlined by Detective Benson suffers from a lack of detail which might cause one to wonder whether it is a "plan" at all. On one view, it appears to be simply a listing of common investigative techniques used by the police in stimulating conversation once wires are in place.

[62] Justice Brown accurately characterized the plan. It says nothing about how the generic investigative techniques described by the affiant would be, or even could be, applied in the specific circumstances of the investigation. There is no concrete plan laid out. For example, the affiant does not identify how any specific targets might be prompted through some specific investigative technique to communicate with others in respect of the homicide. The plan, as described in the affidavit, is essentially a plan to do something to stimulate communication among the targets at some point in time after the authorization is in place and the private communications of the targets are being intercepted.

[63] In holding that the plan, despite its deficiencies, was sufficient to uphold the issuance of the authorization, Brown J., at paras. 60-61, relied on the affiant's indication the police intended to first use the intercepted communications to determine "the state of mind, activities, associates and tendencies of the targets of the authorization". Armed with that information gained through the interception of private communications, the police would then be able to flesh out the details of their stimulation plan.

[64] Justice Brown accurately describes the two phases of the investigative plan laid out in the affidavit. This description demonstrates why the affidavit did not provide a basis for granting the authorization. The police wanted an authorization so they could gather information contained in the private communications of the targets. They would then use that information to formulate an investigative plan tailored to the specific circumstances and likely to prompt discussions relevant to the homicide among or involving the targets. Those prompted discussions would then be intercepted under the authority of the authorization.

[65] As counsel for the accused aptly put it, the police wanted to wiretap first and use the fruits of their wiretaps to hopefully develop an investigative plan that would provide the necessary credibly-based probability to justify interceptions under s. 186(1)(a). Section 186(1) does not contemplate the use of authorizations for information gathering purposes in the absence of reasonable grounds to believe the authorization, when issued, will afford evidence of the named offences. It is not enough that the authorizations will afford evidence at some point down the investigative road, after the police, using information gathered through wiretapping, have developed an effective plan to prompt communications among the targets.

[66] I would hold the affidavit did not provide a basis upon which the issuing judge could conclude there were reasonable [grounds] to believe the interceptions would afford evidence of the murder. As one of the prerequisites to the granting of an authorization under s. 186(1) did not exist, the interceptions resulted in a breach of the s. 8 rights of the accused.

(ii) Section 186(1)(b): The investigative necessity requirement

[67] The accused at both trials also argued the affidavit had failed to satisfy the investigative necessity requirement in s. 186(1)(b). Justice Brown held that requirement was met (reasons paras. 76-87). Justice Corthorn did not consider this issue. I will address it briefly.

[68] The affiant asserted other investigative procedures were unlikely to succeed. However, the affidavit itself provides no basis for that conclusion. As I have indicated, the police conducted little, if any, investigation to attempt to update the homicide investigation before applying for the authorization. For example, they apparently made no effort to establish any ongoing connection among the targets, did not recontact the four confidential informants who had provided information earlier, and made no attempt to re-interview any potential witnesses.

[69] Absent any attempts to bring the investigation up-to-date before applying for the authorization, I fail to see how it could be said that other investigative procedures had been tried or failed, or appeared unlikely to succeed. There is no suggestion that urgency could justify the authorization.

[70] The investigative necessity requirement must speak to the status of the investigation at the time the application is made, not years earlier. The affidavit perhaps established investigative necessity as of the summer 2014, but was virtually silent about other investigative possibilities as of December 2016.

[71] The Crown correctly submits that an authorization is not necessarily an investigative technique of last resort. It also cannot be the investigative technique of first resort when the police seek to breathe new life into a long dormant investigation. I think that is what the police sought to do here. There was no basis upon which the reviewing judge could be satisfied the issuing judge could find the investigative necessity requirement had been met.

V Should the Evidence of the Intercepted Communications Have Been Excluded Under Section 24(2) of the Charter?

[72] Justice Brown, having concluded there was no s. 8 violation, did not address s. 24(2). Justice Corthorn would have excluded the evidence: R. v. Bashir, 2019 ONSC 4937, [2019] O.J. No. 4316, 2019 ONSC 4937 (S.C.J.) (s. 24(2) Ruling).

[73] No one argues that the s. 24(2) analysis should yield different results in the two appeals. I will first consider whether Corthorn J. erred in law in excluding the evidence in R. v. Bashir and Muddei. Whatever conclusion I reach in R. v. Bashir and Muddei, I will apply to R. v. Thibault and Vaillant.

[74] The decision of Corthorn J. with respect to the admissibility of the intercepted communications is entitled to deference in this court. Absent an error in law, a misapprehension of material evidence, a failure to consider relevant factors, or an unreasonable finding, this court will accept a trial judge's decision to admit or exclude evidence under s. 24(2): R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32, at paras. 86, 127; R. v. Côté, [2011] 3 S.C.R. 215, 2011 SCC 46, at para. 44; R. v. Szilagyi, 2018 ONCA 695, at para. 41; R. v. Strauss, 2017 ONCA 628, at para. 38.

[75] The s. 24(2) analysis requires the exclusion of the evidence if its admission would, in all the circumstances, bring the administration of justice into disrepute. The focus of the inquiry is on the long-term impact of the admission of constitutionally tainted evidence on the repute of the justice system in the broad sense. The accused carries the onus to demonstrate the evidence should be excluded: Grant, at paras. 67-70.

[76] Grant directs that the s. 24(2) inquiry should be approached by balancing assessments made under three lines of inquiry. They are:

• the seriousness of the Charter-infringing state conduct;
• the impact of the breach of the Charter-protected interests of the accused; and
• society's interest in an adjudication on the merits: Grant, at paras. 71-86.

[77] The first line of inquiry examines the state conduct that resulted in the Charter breach. That conduct will fall along a continuum of blameworthiness ranging from a deliberate breach through various levels of negligence to a breach committed in good faith and reasonably. The more blameworthy the conduct, the stronger the argument for excluding the evidence: Grant, at paras. 72-75.

[78] The second inquiry examines the impact on the Charter-protected interest of the accused flowing from the Charter breach. In this case, the Charter-protected interest is the privacy rights of the accused. The second inquiry requires an assessment of the extent to which that privacy interest was compromised by the improper interception of private communications. The more negative the impact on the privacy interests of the accused, the stronger the case for exclusion: Grant, at paras. 76-78.

[79] The third inquiry is concerned with the impact of the admission or exclusion of the evidence on the integrity of the trial process. That integrity will suffer if reliable, cogent evidence is excluded. The routine admission of evidence gathered by unconstitutional means will also undermine the integrity of the trial process: Grant, at paras. 79-81.

[80] In R. v. Le, 2019 SCC 34, at para. 142, the majority explained the interaction of the three inquires:

The third line of inquiry, society's interest in an adjudication of the case on its merits, typically pulls in the opposite direction -- that is, toward a finding that admission would not bring the administration of justice into disrepute. While that pull is particularly strong where the evidence is reliable and critical to the Crown's case [citation omitted] we emphasize that the third line of inquiry cannot turn into a rubber stamp where all evidence is deemed reliable and critical to the Crown's case at this stage. The third line of inquiry becomes particularly important where one, but not both, of the two inquiries pull toward the exclusion of the evidence. Where the first and second inquiries, taken to together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility. Conversely, if the first two inquiries together reveal weaker support for the exclusion of the evidence, the third inquiry will often confirm that the administration of justice would not be brought into disrepute by admitting the evidence.

(Citations omitted; emphasis in original)

[81] Justice Corthorn correctly identified the inquiries described in Grant: s. 24(2) Ruling, at paras. 5-8. There was no doubt that the second inquiry, the impact of the breach on the Charter-protected interests of the accused, strongly favoured the exclusion of the evidence. The accused were subjected to a prolonged and pervasive invasion of their private communications, a fundamental component of personal privacy.

[82] The outcome of the s. 24(2) inquiry turns largely on the proper characterization of the seriousness of the Charter-infringing state conduct. Justice Corthorn placed the conduct at "the more serious end of the spectrum": s. 24(2) Ruling, at para. 30. In doing so, she emphasized two things. First, the inadequacies in the affidavit were far from minor or technical. In her view, the affidavit failed to provide any evidence upon which the issuing judge could reasonably draw any of the inferences necessary to satisfy the fundamental requirement of reasonable grounds to believe the authorization would afford evidence of the specified offences: s. 24(2) Ruling, at paras. 17-18.

[83] Second, Corthorn J. was critical of the manner in which parts of the affidavit had been drafted. In her view, the affiant, through carelessness or inadvertence, had unintentionally misled the issuing judge in respect of a material fact, namely any ongoing connection among the targets of the proposed authorization: s. 24(2) Ruling, paras. 26-27.

[84] I see no basis upon which this court can interfere with either finding. As to the fundamental nature of the inadequacies in the affidavit, not only was there no evidence upon which the issuing judge could have been satisfied the interceptions would afford evidence of the murder, there was also no basis for a finding of investigative necessity. The affidavit failed to provide a basis for a finding of either of the two prerequisites to the issuing of an authorization under s. 186. The inadequacies could not have been more fundamental. Justice Corthorn did not err in describing them as "serious and significant": s. 24(2) Ruling, para. 18.

[85] The finding of Corthorn J., that aspects of the affidavit were unintentionally misleading, is also supported by the terms of the affidavit. As she points out, at para. 21, the affiant described Ms. Windebank as continuing to maintain contact with the group. This assertion was significant to the merits of the application, as there was virtually no evidence of any ongoing connection among the targets. Indeed, Brown J., in his review of the affidavit, saw Ms. Windebank as "an important character" in the police prompting strategy.

[86] The unsubstantiated assertion of a continued connection between Ms. Windebank and the others caused Brown J. to misapprehend her potential importance to any future prompting strategy. It may well have had the same effect on the issuing judge.

[87] In addition to the potentially misleading description of Ms. Windebank's ongoing connection with the group, I think there is a second aspect of the affidavit that is also misleading. As set out above, the affiant describes three of the targets as having been arrested in relation to a "guns and gangs" police operation. The affidavit provides no details. Later, the affiant refers to Ms. Windebank as having been "charged along with" the other two targets.

[88] In his reasons, Brown J. refers to the three targets as "co-accused". The affidavit may imply the three targets were co-accused, but it does not actually say they were charged together, or that their charges had any connection to each other. The language used in the affidavit, and the absence of any details relating to the subject matter of the arrests, misled Brown J. to describe the three targets as "co-accused". It may have had the same effect on the issuing judge.

[89] The inadequacies in the affidavit must be considered having regard to the ex parte nature of the authorization for the application. The potential to mislead by careless drafting, or ambiguous silences, is very real. It falls to the affiant, and the Crown agent, to be especially careful to minimize the risk that the issuing judge will be unintentionally misled by the language in the affidavit.

[90] In fairness, most of the affidavit was drawn in a straightforward and accurate manner. Justice Corthorn accepted there was no intention to mislead the issuing judge. However, the misleading aspects of the affidavit go to the existence of any ongoing connection among the targets, a crucial component of the Crown's reasonable grounds claim, and probably the weakest part of that claim. Justice Corthorn's finding that the affiant, through carelessness or inadvertence, misled the issuing judge on an important component of the affidavit supported her finding that the nature of the state misconduct should be placed toward the more serious end of the continuum: see R. v. Rocha, 2012 ONCA 707, at paras. 27-37.

[91] Counsel for the provincial Crown made two additional arguments, which they submit were not considered by Corthorn J., and which if taken into account, significantly diminish the blameworthiness of the state conduct resulting in the s. 8 breach. They submit the police followed the required procedure under the Criminal Code by seeking a judicial authorization. In doing so, the police acted in good faith and with the judicial approval of the issuing judge: Rocha, at paras. 28, 32.

[92] The Crown submission is a fair one, but it goes only so far in assessing the blameworthiness of the state conduct. Even when the police follow the proper procedures and seek a judicial authorization, serious inadequacies in the material placed before the issuing judge can justify a finding the police acted negligently or unreasonably, thereby exacerbating the blameworthiness of the state conduct leading to the Charter breach: Rocha, at paras. 32-38. Justice Corthorn properly used her finding that the affidavit was materially, albeit unintentionally, misleading to place the state conduct at the more serious end of the fault spectrum.

[93] Crown counsel also argue that the seriousness of the state conduct is mitigated because the grounds set out in the affidavit, if they were inadequate, fell just short of the grounds needed for an authorization. This was a near miss, say Crown counsel.

[94] Justice Corthorn did not accept this submission. Nor do I. I have difficulty with the proposition that an affidavit that does not provide a basis upon which an issuing judge could (not should or would) be satisfied the criteria in s. 186(1) have been met can be accurately described as a near miss. The standard of review to be applied by the reviewing judge sets a relatively low bar. I would think that most affidavits which cannot clear that low bar will be seriously deficient in setting out the grounds required to justify the issuance of an authorization.

[95] Finally, I cannot agree that the finding by Brown J., that the affidavit satisfied the requirements of s. 186(1), supports the claim that if the affidavit fell short, it barely missed the mark. With respect to Brown J., he fell into the same error as the affiant. Both viewed the existence of grounds to obtain an authorization in the distant past, combined with a generic potential plan to employ prompting strategies in the future, as sufficient to provide the requisite reasonable grounds. For the reasons set out above, that combination may create suspicion warranting further investigation. The combination, without more, however, does not meet the requirements of s. 186(1) of the Criminal Code.

[96] On the findings of Corthorn J., the first and second inquiries described in Grant strongly favoured exclusion. She properly excluded the evidence.

VI Conclusion

[97] I would dismiss the appeal from the acquittals in R. v. Bashir and Muddei.

[98] I would allow the appeal from the convictions in R. v. Thibault and Vaillant. The evidence obtained pursuant to the authorization should have been excluded under s. 24(2) of the Charter. The Crown acknowledges that the excluded evidence was "essential to the Crown's case". The convictions should be quashed and acquittals entered.

Appeal from convictions allowed; appeal from acquittals dismissed.

Notes

1. There were two other persons charged with Thibault and Vaillant, but they are not involved in the appeal.

2. The authorization was amended in December 2016 and a second authorization was granted in February 2017. For the purposes of the appeals, only the authorization granted in December 2016 is relevant.

3. The reasons of Brown J. are not reported. They were released on February 2, 2019 and can be found in court file number 17-RF1043.

4. The appellant, Vaillant, was not named in the first authorization, but was named in the authorization granted on February 1, 2017. The respondent, Muddei, was not named at all. Nothing in my analysis turns on whether individuals were named or not named in the authorizations.

5. The affidavit does refer to information received from confidential informant # 5 in August and September 2016. That information provided the phone numbers of certain targets, and indicated Bashir was back in Ottawa and involved in drug trafficking. This information did not advance the homicide investigation.

6. It would appear that something is missing from this sentence.

7. In this case, there were redactions in the affidavit. The Crown did not rely on any of the redacted parts of the affidavit when defending the authorization.

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