Court File and Parties

Date: September 27, 2012

Ontario Court of Justice

Between:

Her Majesty the Queen – Respondent

And

Tristan Jones, Jermaine Smith and Jafari Waldron – Applicants

Before: Justice Jacqueline V. Loignon

Ruling on Application pursuant to Section 8 of the Charter of Rights and Freedoms

Reasons for Judgment released on: September 27, 2012

Counsel

Mr. J. Neubauer – for the Provincial Crown

Ms. D. Hayton – for the Federal Crown

Mr. P. Mcann – for the accused Tristan Jones

Mr. M. Ertel – for the accused Jermaine Smith

Mr. R. Carew – for the accused Jafari Waldron

LOIGNON J.:

Introduction

[1] In 2009, the Ottawa Police Service began an investigation into allegations of possession and trafficking of firearms in the Ottawa area. The belief was that firearms were being smuggled from the United States into Alberta and thereafter being brought to Ottawa. The applicants Waldron and Jones were identified as targets, relatively early on in what was labelled "Project Lancaster".

[2] In order to further the investigation, a number of general warrants, Dialled Number Reports, and Production Orders were obtained. Detective Swerjeski of the Ottawa Police Service was the affiant for a number of these, including Production Orders directed at Bell, Rogers and Telus. From there, investigators obtained two Part VI Authorizations.

[3] The production orders at Appendix B sought the following:

"The subscriber information and toll records of incoming and outgoing calls related to cellular telephone number 613-723-0597 from 5th August 2009 through 05th January 2010, including the cell site information for all incoming and outgoing calls during those dates, and the subscriber information of all [service provider name] customers in contact with the stated numbers during the time period specified. The information is to include subscriber information related to published and non-published numbers, terminated numbers, historic records, "mic" transmissions and any text messaging information."

[4] Issue is being taken with a production order directed to Telus. That actual order was not filed with the court but a mirror one directed to Bell was marked as Exhibit 4. The Order and supporting affidavit can be found at tabs 1 and 2. The information received from Telus included a number of text message exchanges. The texts subsequently were used in the affidavit in support of the first Part VI Application. The applications brought by the Applicants challenge the type of order used to obtain text messages, the basis of the Telus production order and all further authorizations and warrants which built on each successive order.

Issues

[5] While each applicant brought an individual application, there is some overlap with respect to the issues being argued. They are:

1. The validity of the Telus production order;

   • i. type of Order used; and
   • ii. sufficiency of the grounds to obtain the order.

2. The sufficiency of the grounds to obtain the 1st part VI authorization [Roy authorization dated November 12, 2010]

3. The sufficiency of the grounds to obtain the 2nd part VI authorization [Polowin authorization dated January 12, 2011]

4. The exclusion of all intercepted communications pursuant to section 24(2) of the Charter of Rights and Freedoms.

5. The sufficiency of the grounds to obtain Criminal Code of Canada and Controlled Drugs and Substances Act warrants to search.

6. The exclusion of all fruits of the searches pursuant to the warrants above in accordance with section 24(2) of the Charter of Rights and Freedoms.

While Mr. Jones and Mr. Waldron argue items 1 through 6, Mr. Smith is concerned with items 2 through 6.

Preliminary Issue

a. Errors in the Swrjeski Affidavit in Support of the Telus Production Order

[6] When the applications were first filed, leave was sought to cross-examine Detective Swrjeski on the Telus production order affidavit. Indeed, an error was discovered subsequent to the order having been obtained. More specifically, confidential informants one and seven were found to be the same person. Detective Labine discovered the error as he verified the confidential informant information in the course of preparing the affidavit in support of the Part VI application. Crown counsel consented to cross examination with respect to this issue.

[7] Detective Swrjeski's evidence can be summarized as follows:

Detective Swrjeski was assigned to be the affiant for a number of Dialed Number Recorder Warrants, General Warrants, and Production Orders in this investigation. Production orders were directed to Bell, Rogers and Telus. Only Telus however saves text messages for a period of time. Production orders sought "any text messaging information" which would include not only the text itself but also information concerning the originator and recipient of the message.

[8] The information the Detective included in his affidavit concerning the confidential informants ("CI") was received from the Investigating Officer, C. Benson, who, in turn, had received it directly from the informant handlers. Swrjeski believed that certain information he himself was receiving was third hand. He received no specific information nor did he receive any information directly. All of his information flowed from Detective Benson. He took the information at face value. His own practice in handling an informant is to verify the information prior to it being passed on and so he expects other investigators to have done the same. He believed that the CI handlers followed a template in terms of their information, which would account for some the similarities in wording.

[9] Detective Swrjeski did no independent verification of information nor did he review any reports or records. At the end of the day, it is information he received, copied into the ITO and believed to be true. At the time he did not notice any similarity of phrasing and although he could have asked some questions, he felt that the information he had received was somewhat detailed and thus he was satisfied with it. He really could not see what more he would have received from the handlers directly that he did not already have through Benson. Indeed, he already had received information in relation to:

• reliability/credibility
• Criminal Record
• Past usefulness
• Connection to criminal element
• Overall biography of the Informant

The information he received from the IO concerning the CI contained everything he expected to receive. As a result, there was no need for him to ask questions.

1. The Telus Production Order

(a) Production Order vs. Part VI Authorization

[10] The counsel for the applicants Waldron and Jones have argued that police ought not to have obtained text messages between their clients through a production order, but rather ought to have obtained a Part VI authorization. Reliance for that position is being placed on the Applicant's position in R. v. Telus, 2011 ONSC 1143. In that case, the police obtained a general warrant and assistance order by which Telus was obliged to produce, on a daily basis, all text messages sent and received by two Telus subscribers, in addition to all the related subscriber information. Telus challenged the orders on the basis that such a prospective warrant purports to intercept private communications and as such, police ought to have applied for a wiretap authorization under Part VI of the Code. The Crown in that case argued that the general warrant did not require the interception of private communications because Telus routinely stores copies of all text messages sent and received on its servers. As such, the general warrant was directed to data that was stored and not real-time communications from sender to receiver.

[11] In the course of hearing the Telus application, the Court was in receipt of affidavits sworn by Telus employees setting out the nature of text messaging, the manner in which messages are sent and received, as well as how and why the finished information is stored. I note that the decision itself only reproduces excerpts from the various affidavits.

[12] From the outset, the Crown conceded that the police ought to have obtained a production order for all texts stored and held by Telus. There was no further argument on this point. This is the issue that is analogous to the present situation. Despite this, Defence urge me to consider the Telus, supra, case for the proposition that what police in that case were attempting to do was intercept private communications and thus were required to obtain a Part VI authorization.

[13] The Court reviewed the Code definitions of "intercept" as well as "private communication". I will reproduce them below as they are germane to the arguments being advanced:

[14] "Intercept" includes listen to, record or acquire a communication or acquire the substance, meaning or purport thereof.

[15] "private communication" means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it.

[16] In Telus, supra, the court came to the conclusion that the messaging [text messaging] was clearly a form of private communication as defined by the criminal code. The issue it then went on to consider was whether the general warrant purported to authorize the interception of private communication. In considering the meaning of intercept, the court referred to earlier jurisprudence, namely R. v. McQueen (1975), 25 CCC (2d) 262 (Alta C.A.) whereby interception was found to involve an element of interference between the place of origination and the place of destination of the communication. (At paragraph 39 and 48) The Court therefore concluded that the warrant did not authorize the interception of private communications. It further opined that while text messaging may merit, for policy reasons, a separate treatment than other business records, it was a matter for Parliament to consider. (at par 61-62) The Application was dismissed.

[17] I have been asked to find that the actions of Telus, in storing text messages in this case, constitutes an interception of private communications and that Telus has contravened section 184 of the Code. As I noted, no evidence whatsoever has been called in this matter. The facts I have been asked to consider are the excerpts of the affidavit from one Telus employee reproduced in the Telus decision. I have also been asked not to consider any exceptions found in section 184(2)(c) despite their inclusion in the facts in the same manner as the other Telus information.

[18] I decline to make any findings with respect to the actions of Telus constituting an interception of private communication. In the first instance, the Telus decision is from the Superior Court of Ontario and is binding upon me. Secondly, there is no adequate evidentiary foundation for me to rely upon and base any findings. I cannot accept a partial affidavit reproduced in a decision and then ignore other portions of the facts as suggested by defence. The far-reaching implications of this issue require an appropriate factual foundation, which is entirely lacking in this case. I therefore find that the Ottawa Police Service was not required to obtain a Part VI authorization for the information related to cell phone number 613-806-6582.

(b) Sufficiency of the Basis to Obtain the Production Order

Preliminary Issue: Standing

[19] The Crown, Respondent in this Application, has raised the issue of standing to advance a section 8 claim with respect to the Telus production order. This argument applies only to Mr. Jones and Mr. Waldron. The production order refers to one telephone number, namely 613–806–6982. The information to obtain, sworn in support of the production order, indicates that that particular phone number is registered to Kurt Gillis and used by Jaffari Waldron. Exhibit 6 filed by the Crown is a copy of a document produced by Telus in response to the Production Order. It refers to Kurt Gillis with a residence of 401-300 Cambridge St and telephone number 613-806-6982.

[20] In essence, the Crown asserts that both Mr. Waldron and Mr. Jones, who bear the burden on this application, have adduced no evidence with respect to their privacy interest in the materials seized pursuant to the order. The Crown relies on R. v. Edwards, [1996] 1 S.C.R. 128 the seminal Supreme Court of Canada case on searches and standing, as well as subsequent cases dealing with production orders and search warrants in cell phone cases.

[21] In contrast, the applicants Waldron and Jones state that their privacy interest in the text messages seized pursuant to the production order is self-evident. They point to the nature of the communication as being a private communication such that their privacy interest and therefore standing are automatic.

[22] In R. v. Edwards, supra the Supreme Court of Canada dealt with the proper approach to be taken in assessing a person's standing to attack searches. To begin with, the Court rejected the notion of automatic standing, confirming that Charter remedies are personal ones. The court adopted the long-standing position of the United States Supreme Court and held that determination of the ability to challenge a search pursuant to section 8 of the Charter must be conducted in two parts.

• a. Do the Applicants have a reasonable expectation of privacy?
• b. Was the search an unreasonable intrusion into that privacy?

(R. v. Edwards, supra at pp. 146-7; 152-3.)

[23] The Court then synthesized the prior case law and laid down the following principles:

• a. A claim for relief under section 24(2) only be made by the person whose charter rights have been infringed.
• b. Like all charter rights, section 8 is a personal right. It protects people and not places.
• c. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated.
• d. As a general rule, 2 distinct inquiries must be made in relation to section 8. First, has the accused a reasonable expectation of privacy? Second, if he has such an expectation, was the search by the police conducted reasonably?
• e. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.
• f. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to the following:
  • i. presence at the time of the search;
  • ii. possession or control of the property or place 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 the expectation.
• g. If an accused person establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.

(Edwards, supra at pp.150-1)

[24] A privacy interest will be determined by reference to the evidence. To be clear, the evidentiary foundation cannot simply comprise the Crown allegations. As the right is personal, it must be established by the Applicants.

[25] I think it important to note that despite the Edwards case being a search of a place, the framework for the analysis on standing remains the same with some modifications to allow for the particular circumstances.

[26] In R. v. Fattah, 2006 ABQB 71, [2006] A.J. No. 232, the Alberta Court of Queen's bench dealt with an Application to quash the search warrant used to obtain subscriber information relating to a telephone number for a cellular phone the accused was believed to be using but owned by someone other than the accused. After referring to the Supreme Court of Canada decision in Edwards, the court then referred to R. v. Plant also from that Court. In Fattah, the court confirmed that the Edwards factors are still relevant even when dealing with a search involving telephone records. Indeed, the criteria in Edwards are to be supplemented with those identified in Plant. In that case, the issue was one of informational privacy, specifically the reasonable expectation of privacy in computerized records of electrical consumption at an accused's home. Sopinka, J suggested that the following be considered when balancing society interests in protecting individual dignity, integrity and autonomy with effective law enforcement and thereby assessing the reasonableness of an expectation of privacy in such records:

• a. The nature of the information itself;
• b. the nature of the relationship between the parties releasing the information and the party claiming its confidentiality;
• c. the place where the information was obtained;
• d. the manner in which it was obtained;
• e. the seriousness of the crime being investigated;
• f. the existence of a subjective expectation of privacy; and
• g. the objective reasonableness of the expectation.

[27] At the end of the day, the court in Fattah concluded that in the particular circumstances of that case, the accused did not have a reasonable expectation of privacy and that there was no standing regarding the Section 8 argument.

In Edwards, the court emphasized that the totality of the circumstances must be considered in determining whether there is a reasonable expectation of privacy. Looking at the circumstances here, the accused could not have held a reasonable expectation of privacy in relation to the computerized cellular telephone records produced by Microcell.

[28] Notwithstanding this conclusion, the court then went on to consider the second part of the Edwards test namely whether the search was conducted reasonably. The court ultimately concluded that the warrant was properly issued. Fattah, supra at par 35 and 47.

[29] In R. v. Pervez [2005] A.J. No. 708 (Alta C.A.) the Alberta Court of Appeal considered the issue of an accused's privacy interest in cell phone records held by a telephone company for a phone owned by his sister. In that particular case, it's not clear what type of warrant was used, be it production order or general warrant, notwithstanding, records were obtained which showed that the accused made extensive use of his sister's phone. In Pervez, neither the accused nor his sister testified on the voir dire. There was however some evidence adduced through a police officer confirming the phone use by the brother.

[30] When reviewing the phone records obtained, the court concluded that the records did not reveal intimate details of the accused's lifestyle personal choices. They merely demonstrated that a cell phone he used was at a certain place, at a certain time. The court placed some emphasis on the nature of the commercial relationship as between the cell phone provider and the accused's sister. The court stated that "one measure of an individual's privacy interests is whether the person can assert any control over the records." (Pervez, supra at par 13) In this case, the accused was unable to do so. The court then went on to say:

"persons who want to maintain privacy rights have, at minimum, to structure their affairs in a manner consistent with that desire. Using a cell phone that is owned by another party does not entitle the user to a privacy interest over records that are relevant to the relationship between the cell phone provider and the owner of the cell phone."

(Ibid at par 14)

Analysis

[31] I now turn to the facts of this case in considering the principles above:

i. The nature of the information itself

The information consists of cell phone usage information, numbers from which calls and texts were received and actual text messages. No names appear other than Kurt Gillis. Only the texts messages can be said to reveal any intimate details of lifestyle or personal choices of the user. It is this information only that would potentially attract an expectation of privacy through the nature of the information but the analysis does not end there. As set out in Plant and Edwards, the process is one where a variety of factors are considered when assessing the totality of the circumstances.

ii. The nature of the relationship between the parties releasing the information and the party claiming its confidentiality

The evidence does not show a commercial relationship as between Telus and the applicants Waldron and Jones. The records identify a subscriber by the name of Kurt Gillis. It is unknown whether this person actually exists. There is no evidence of a contractual relationship between the Applicants and Telus. There is nothing to suggest that Telus was contractually bound to keep any of the records confidential. There is no evidence that the Applicants had any control over the records themselves or the Telus offices where they were located. The Applicants had no ability to instruct Telus to produce the records or not.

iii. The place where the information was obtained

The information was retrieved by Telus but it is unknown from where. Irrespective, it cannot be suggested that the Applicants in any way had an expectation of privacy with respect to the Telus office, wherever they records were produced from.

iv. The manner in which it was obtained

There is no evidence as to how the information found in exhibit 6 was obtained. The logical inference is that the Production Order was served on Telus and thereafter the information compiled by them. There was no physical search and seizure of any property or belongings of the Applicants'. There is no evidence to suggest an intrusion upon the property of the Applicants.

v. The seriousness of the crime being investigated.

The offences being investigated include trafficking in weapons and narcotics, both very serious offences that carry significant penalties.

vi. The existence of a subjective expectation of privacy

There is no evidence whatsoever of any subjective expectation of privacy on the part of either Applicant.

vii. The objective reasonableness of the expectation

There is nothing to suggest from an objective standpoint that the Applicants structured their affairs to maintain privacy over the cell phone records. If anything, the use of a third party demonstrates a willingness to distance and avoid detection or association with the records.

Conclusion

[32] In my view, the totality of the circumstances do not support that the Applicants Waldron and Jones had a reasonable expectation of privacy in relation to the cell phone records produced by Telus. Accordingly, I do not find that Waldon and Jones have standing with respect to a Section 8 argument in relation to the Telus production Order. As a result of the forgoing, I do not need to embark on the second part of the inquiry in relation to the manner in which the search was executed.

2. The November 12, 2010 Part VI Authorization

[33] On November 12, 2010, Justice Roy of the Superior Court authorized the interception of private communications between various individuals including all three Applicants. While Mssrs Waldron and Jones were identified as principal known persons, Mr. Smith was labeled an "other known person". The affidavit sworn in support of the Authorization was written and sworn to by Detective Pascale Labine and is some 164 pages long with a number of supporting affidavits and appendixes.

Law

(a) The Test for Review of an Authorization

[34] In R. v. Garofoli, [1990] S.C.J. No. 115, Sopinka J. summarized the standard of review as follows:

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 review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then she should not interfere. In this process, the existence of fraud, nondisclosure, 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.

[35] In R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No. 65, LeBel, J. characterized the test as follows:

Whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge. (52-55)

[36] The sole function of the reviewing court is to assess the record that was before the authorizing judge, as amplified on review, and determine whether the authorization could have issued. Importantly, this review has nothing to do with whether the reviewing court would have issued the authorization. It is not a hearing de novo. (Garofoli, supra at par 55)

[37] In Araujo, supra the court also commented on the adequacy of the affidavits in support of the application.

The legal obligation on anyone seeking an ex parte authorization in full and frank disclosure of material facts… All that it must do is set out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether the rise to the standard required in the legal test for the authorization. Ideally, an affidavit should be not only full and frank but also clear and concise. It need not include every minute detail of the police investigation over a number of months and even years. (at par. 46)

[38] Given the difficulty of the task faced by an affiant, some minor errors and omissions will not be surprising when considering the type of investigation undertaken and the degree of detail that the applicant must synthesize in order to meet all the legal requirements. [R. v. Melenchuk, [1993] B.C.J. No. 558 (CA)] In addition, courts have also recognized that "it is not appropriate when reviewing to parse and microscopically examine words, phrases, or paragraphs in isolation." [Simonyi-Gindele v. British Columbia (A.G.) (1991), B.C.J. No. 2220 (C.A.)] see also the comments and Hill J. in R. v. N.N.M., [2007] O.J. No. 3022 at par 316:

The appropriate approach for judicial review of the facial validity of the search warrant and related ITO is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph. Reference to all data within the four corners of the information, a commonsense review not line by line word by word dissection, provide the fair and reasonable context for the assertions in question.

(b) The Basis for Granting an Authorization Under Part VI

[39] An authorization under Part VI of the Criminal Code of Canada may be issued where there exist reasonable and probable grounds to believe that (a) an offence has or is being committed and (b) that the authorization sought will afford evidence of that offence. (section 185 and 186 of the Criminal Code; R. v. Duarte, [1990] 1 S.C.R. 30)

[40] In R. v. Okeke, [1999] O.J. No. 3693, Hill J. summarized the hallmarks of reasonable and probable grounds as follows: "the burden of persuasion standard cast upon the police is one of credibly-based probability not suspicion… Reasonableness comprehends a requirement of probability… The standard is not to be equated with proof beyond a reasonable doubt or a prima facie case." (at par 22; Citations omitted)

[41] In R. v. Gatfield, [2002] O.J. No. 166, Justice Quinn of the Superior Court put it this way:

The issuing court must be satisfied that reasonable and probable grounds exist for the authorization. This finding cannot be delegated. It is not enough that the officer swears he has reasonable and probable grounds for believing the facts here she states to be true; there must be facts given on oath from which the issuing court can be judicially satisfied that there are rational grounds for the belief.

Mere suspicion on the part of the police that an offence has been committed is not sufficient. In the information to obtain there must be disclosed the source of the suspicion before the issuing court can be satisfied if the grounds exist.

(at par 112-113)

[42] In R. v. Pires & Lising, 2005 SCC 66, [2005] S.C.J. No. 67, the Supreme Court of Canada instructed that in assessing reasonable and probable grounds, the affiant's personal belief is immaterial. "The only requirement in that there exist, on an objective basis, reasonable grounds to believe that an offence has been or will be committed and that evidence about the offence will be obtained by means of the proposed interception." (at par 66)

(c) The Use of Confidential Informants

[43] The use of confidential informants in establishing a basis for applying for an authorization to intercept is a long established practice. As a result, courts have set out parameters with respect to the quality of information required in order for a court to be confident in the information being provided.

[44] In R. v. Debot, supra, the Supreme Court Canada of provided the following guidelines:

• a. was the information predicting the commission of a criminal offence compelling?
• b. Where that information was based on a tip originating from a source outside the police, whether that source was credible?
• c. Was the information corroborated?

The totality of the circumstances must meet the standard of reasonableness. Weakness in one area may, to some extent, be compensated by strengths in the other two.

[Where police rely on anonymous tip or on an untried informant] the quality of the information and corroborative evidence may have to be such as to compensate for the inability to assess the credibility of the source.

In my opinion, it should not be necessary for the police to confirm each detail in an informant's tip so long as sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence.

(at par 53, 59, 63)

[45] In R. v. Garofoli, supra, the Court dealt with assessing a "tip" provided by an informant. The Court said:

• a. hearsay statements of an informant can provide reasonable and probable grounds to justify a search. However, evidence of a tip from an informer, by itself, is insufficient to establish reasonable and probable grounds.
• b. The reliability of the tip is to be assessed by recourse to the totality of the circumstances. There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:
  • i. the degree of detail of the tip;
  • ii. the informers source of knowledge;
  • iii. indicia of the informers reliability such as past performance or confirmation from other investigative sources.

(as cited in R. v. Okeke, supra at par 26)

[46] A number of cases have set out further issues to be considered in assessing informer reliability. Some of these include the following:

• a. corroboration of details that would be known to anyone familiar with the target does not substantiate an allegation that the person is involved in the alleged criminal activity. (R. v. Zammit (1983), 81 C.C.C.(3d) 112(Ont. C.A.))
• b. corroboration of innocuous biographical detail does not constitute corroboration that will tend to confirm the reliability or case credibility of an informant. (R. v. Gatfiled, [2002] O.J. No. 166 at par 135; R. v. Costain, [1996] O.J. No. 543 (CJ))
• c. Whether the information is first-hand or hearsay from the mouth of the informant. (R. v. Day, [1990] O.J. No. 4461 (C.A.))

[47] Furthermore, it is permissible for an issuing Justice to consider mutually corroborating information from confidential informants. Indeed, the evidence of one informant may "contribute to the strength of another informant's evidence". (R. v. Jorge, [2010] O.J. No. 3847 at par 33; see also R. v. Saunders, 2003 NLCA 63, [2003] N.J. No. 309, conf. [2004] S.C.J. No. 66 (S.C.C.))

Analysis

[48] The Labine affidavit is organized thematically into four sections. The first deals with information in relation to an out of province investigation whereby Mr. Waldron's name and phone number arose in relation to a firearms smuggler by the name of Barnes. One of the guns identified as having been smuggled into Canada by Barnes was ultimately located in the city of Ottawa. Investigators in Alberta intercepted, by way of a lawful authorization, a conversation whereby seven guns are being offered for sale. It is believed that conversation is between Mr. Waldron and Mr. Barnes.

[49] The second portion of the affidavit concerns informant information. By way of general commentary, I note the following, which I will expand upon further:

• a. There is much biographical information offered as corroboration.
• b. In some cases, corroboration in my view is presented as being more expansive than what it actually is.

[50] The third portion of the affidavit describes surveillance conducted on the primary target of the investigation. Finally, the fourth section of the affidavit sets out various text messages between the applicants broken down into a) drug offences and b) firearms offences. These last two section of the affidavit were not the subject of extensive submissions by Jones and Waldron. Their focus was on the informant information and its reliability.

Confidential Informant Information:

[51] The affiant begins this section of the affidavit with four paragraphs of an introductory nature. The authorizing Justice is provided with an explanation for the manner of presentation of the information, especially with respect to matters, which may lead to the identification the informants. In addition, an explanation is provided with respect to the meaning of "convictions for crimes of dishonesty" when an informant's criminal record is presented. And finally, a warning is provided to alert the authorizing justice that in some cases the information being related is not first-hand. The affiant also flags any corroborative information where available cautioning the reader that not all details or aspects of the information may have been corroborated.

(a) CI #1

[52] The information provided by this informant concerns both Waldron and Jones. CI # 1 is described as an associate of the persons of interest in the investigation. As a result of this, CI#1 is believed to have access to greater information than the average citizen. There is nothing other than this statement to determine whether this informant has access to first hand or second hand information or what the source or basis for the information was.

[53] CI # 1 is described as having provided information in the past, which has led to various search warrants being obtained and charges being laid. More detailed information is provided by the affiant, which I will not repeat but which may be found at paragraphs 20 and 23, pages 25-26 of the affidavit. CI #1 is an informant with a track history set out in the Affidavit. While it was not necessarily of lengthy duration, the issuing Justice was provided with such information as arrests, search warrants, charges and whether any of the warrants were challenged. There was in my view, sufficient information to raise this recital above that of "boilerplate". The Affiant did not simply indicate that the information was believed to be reliable but offered to the issuing Justice the basis for that view.

[54] There is a significant amount of biographical information that is provided. While most aspects are corroborated, such as relationship to Carlyle Waldron; the car being driven; location where Jones works, where Jones hangs out, the corroboration is not helpful to assess reliability as it is information "likely to be accessible to persons known to the target." (See R. v. Costain and R. v. Zammit, supra)

[55] CI#1 gave information that if Carlyle Waldron requires a firearm, he will turn to his son Jaff. The Crown points to other confidential informant information as corroboration of this tip. Although informants may certainly offer cross-corroboration, in this case, the tip itself is not corroborated by other informants. Indeed, none refer to Carlyle turning to his son for guns. Rather, they all confirm that Jaff is engaged in purveying firearms. I think it is an overstatement to suggest otherwise. I do note, that with respect to the Affiant, he did not make the same suggestion of corroboration. Rather, he set out corroboration of Carlyle's nickname ("Jr") and other biographical information for the issuing Justice.

[56] This informant provided information that "Jaff" and "Rasta" are partners in all their dealings, legal and illegal. The extent of corroboration referred to in the affidavit establishes a high volume of communication between Waldron and Jones. While the corroboration is quite detailed with instances of suspected firearms sales and contact between Waldron and Jones, the actual information being provided by the informant is very limited. Indeed, in my view, very little is actually offered by this tip.

[57] CI#1 provides information that Jaff and Dreads (Jones) are the principal cocaine suppliers for MamaCee's, that this location is very active and that a "MoCrack" attends that location to replenish his supply of drugs from Jaff and Dreads. Corroboration or investigation of this aspect of the information is limited. Other than confirming a business location, corroboration is the level of in and out traffic observed that is not consistent with a haircut, noted through surveillance of the location. Jones is reported to be one of the regular attendees, not receiving a haircut, but meeting with various individuals for short periods of time. This behaviour is certainly suspect and is suggestive of trafficking behaviour but for the purposes of corroborating the CI information it can only be viewed as being of a very general nature. This is an instance of the proffered corroboration not going as far as it is suggested it does.

[58] The information supplied to the issuing justice certainly permitted an assessment of reliability and in that respect, CI#1 appears to be so. However, I do not view the information provided as compelling and in my view it is not sufficiently corroborated to meet the criteria in Debot, supra and therefore ought to be disregarded.

(b) CI#2

[59] CI number 2 offers information with respect to Mr. Waldron. The information primarily relates to Waldron's access to and sale of firearms in Ottawa. More specifically, the informant relates that Waldron is involved in firearms; has them for sale in Ottawa; has access to different types of firearms. This informant also relates that Waldron drives a white Mercedes.

[60] The information provided by CI# 2 is corroborated in a number of different means, the most significant being through analysis of the text messages obtained as a result of the Telus production order.

[61] In setting out CI#2's background, the affiant provided information for the authorizing justice to assess credibility/reliability including: criminal past, motivation for providing information, source of information being association with the persons of interest, and past reliability including information provided leading to serious criminal charges other processes.

[62] In my view, the information provided by CI #2 is compelling, reliable and corroborated.

(c) CI#3

[63] CI# 3 offers information with respect to all 3 applicants. CI#3 states that:

• Jaff is a supplier of the vast majority of the guns being used by the Crips LBC (Ledbury-Banff Crips);
• Jaff is always with Tallman (Smith) when he is "strapped" (in possession of a firearm);
• Jaff has a stash house for his drugs and guns (no location provided);
• Jaff ships his guns from the west using the bus, assumed to be Greyhound;
• He identified Jones as being a male that hangs out at MamaCee's.

[64] With respect to corroboration, the affiant set out the link between the RCMP Alberta investigation into firearms alleged to be imported into Canada through an individual named Barnes and then offered for sale to an individual believed to be Waldron. The link provided is a telephone number associated with Waldron on a Used Ottawa ad as well as one registered to Waldron's girlfriend. The Authorizing justice would have seen the genesis of the current investigation and link to the Barnes investigation earlier in the affidavit, which provides further details to this aspect of the corroboration.

[65] The corroboration offered concerning Waldron being the gun supplier to the Crips LBC is not as quite as compelling as the previous. Indeed, the affiant refers to four Ottawa Police and one Gatineau police investigations where firearms are recovered and Crips gang members or associates charged. There is a statement to the effect that Jones is the source of the handguns. There is nothing further to explain this statement or to source it. It is therefore difficult to accept the statement as corroboration when it is unclear as to where the information is coming from. I do however accept that the high volume and nature of the texts as between Jones and Waldron would provide a link as between the two.

[66] Finally, with respect to corroboration of Jaff being with Smith when he is strapped, the affiant simply offers a list of police sightings. There are four in total from 2005-2010. None suggest that he is "strapped". In my view, this is an instance of corroboration being overstated. The actual "tip" is not truly corroborated. I add however that in a later section of the affidavit, at par 136, the affiant relates a traffic stop wherein Smith attends at the stop in order to lend assistance to Carlyle and Jaffari Waldron. Carlyle had been pulled over as he was a suspended driver. Smith arrived on scene to drive the car for the Waldrons. He was however also found to be a suspended driver. This linkage, in my view is quite compelling and is suggestive of more than a casual acquaintance. Therefore, while I do accept that there is a link beyond the four sightings, I cannot say that the tip is truly confirmed.

[67] In setting out CI#3's background, the affiant provided information for the authorizing justice to assess credibility/reliability including: criminal past, motivation for providing information, source of information being association with the persons of interest, and past reliability including information leading to an arrest and the execution of a search warrant. This CI had a more limited history with the Ottawa Police Service having provided information only within the previous year.

[68] In my view, the information from CI#3 suffers from a lack of corroboration in some areas to address lacunae in others. That is not to say however, that none of the information provided was compelling. Indeed, the information concerning Waldron's ties out west is just that, not to mention corroborated by prior investigations. In my view this aspect of the informants tip may be characterized as compelling and, given the degree of corroboration, reliable. I would not describe the balance of the information in the same manner however and as a result little weight should be placed on it.

(d) CI#4

[69] The information provided by Confidential informant 4 is the following:

• a. That "stacks" [believed to be Waldron] is carrying a gun;
• b. He drives a blue Lexus;
• c. The car is parked in front of his girlfriend's residence, on Cambridge street, where he also stays.

[70] With respect to this informant's information, two of the three points are biographical and therefore, despite being offered as corroborative, do not actually corroborate the tip itself. The indication that is suggestive of a certain degree of reliability is the fact that this informant is associated with the street gang criminal subculture and therefore there would be a higher degree of knowledge than that of the average citizen. However, detracting from this informant's reliability is the fact that this is the first time information has been provided. He or she is therefore untested. Furthermore, there is not a high level of detail in the tip, which again detracts from reliability. This is possibly explained by the fact that the focus of the investigation for which this informant was providing information was not Project Lancaster. Notwithstanding, the paucity of the information is a negative aspect. Finally, it is problematic that there is nothing to indicate the source of the information. Has this confidential informant seen Waldron with a gun or is it information received?

[71] There is some cross corroboration between informants, as both informants 3 and 4 have Waldron carrying a firearm. However, there is an absence of sourcing and details to rely on such cross-corroboration in these circumstances.

[72] Overall, in my view very little weight can be placed on the information provided by this confidential informant given the negative factors I have outlined above. This informant's information should be excised.

(e) CI#5

[73] The information provided by this informant is as follows:

• a. A black male known to him as Jaff, who lives on Uplands drive, has firearms for sale;
• b. The male has dreads, drives a white BMW and has a cell phone number of: 286-7242;
• c. The male attempted to sell the informant a .9mm firearm but this person declined.

[74] Information provided by this informant is quite compelling as it is obviously first hand. Part of the corroboration offered is primarily biographical. However, there is also corroboration through the text messages whereby Waldron is attempting a transaction with respect to a .9 mm. This exchange is certainly supportive of the reliability of the information provided. The most significant negative factor to assessing this informant's information is the fact that he or she is untested and providing information for the first time. This information was provided by the affiant and thus the authorizing justice would have been aware of the untried nature of the informant. Notwithstanding this detracting factor, the direct source of the information as well as the corroboration make this tip compelling and reliable. The authorizing justice was certainly entitled to rely upon it.

(f) CI#6

[75] This informant's information can be found at paragraph 57, pages 40 through 47 of the affidavit. The information from this informant is significant in its detail in relation to firearms and firearm related crimes in the city of Ottawa. This informant alleges that Rasta (Jones) is the principal supplier of firearms to the Crips street gang. Subsequently, while a number of paragraphs relate primarily biographical data, upon which little weight can truly be placed, the tenor of the information changes as of paragraph F on page 41. In that paragraph, the informant indicates that Rasta obtains firearms from Montreal, three or four at a time. When they are available, he will call area gang members to let them know of their availability. That information is subject to corroboration through surveillance information in relation to a Charles Kissendall who drives a car with Quebec plates and attended the residence of Mr. Jones. The surveillance establishes that Kissendall removes a dark coloured duffle bag from his trunk, attends Eiffel Ave with the bag and then returns it to his car, folded and smaller in volume. In addition, a number of communications between Jones and Kissendall are noted through the production orders. The affiant refers the authorizing justice to the sections on the surveillance and production orders for further details. A review of those sections provides additional details with respect to the corroboration. Indeed, further information in relation to Kissendall and his vehicle is provided as well as an account of communications involving Jones and Kissendall, as well as Jones and Waldron.

[76] CI#6 goes on to detail a seizure of a firearm from Yassin Khadr in September of 2009. The firearm seized is alleged to have been purchased originally from Mr. Jones. The firearm itself is traced through Ottawa Police records and the calibre of the firearm that was ultimately seized by police is consistent with the calibre set out by the informant. This corroboration is compelling in terms of the detail provided by the informant.

[77] CI#6 advises of a police seizure of a .380 firearm in the Hunt Club area, which the informant also alleges was purchased from Jones. Ottawa Police records detail a seizure of a .380 calibre pistol in the area Farriers Lane. This is located in the Hunt Club area. Again, in my view, the detail provided in terms of the calibre, which matches the police records information, is compelling.

[78] On September 14th 2009, Police recover a Hi-Point firearm, which according to CI#6 was originally purchased from Mr. Jones. The corroboration offered is that the seizure resulted from this particular tip from the informant. There are no details as to the mechanics of the seizure, simply a statement to that effect with a reference to the Ottawa Police case number. As part of this tip, the informant suggests that various members of the Crips had access to the firearm before it was recovered by the police. This aspect of the tip is not corroborated.

[79] The affiant sets out information provided by CI#6 in relation to a shooting of Ali Hamzi. The informant indicates that the person responsible for the shooting is a certain Ateena Barnett and that a .32 calibre handgun was used. There is significant information set out by the affiant with respect to refuting the tip as well as corroborating the tip. At the end of the day, it is difficult to determine its reliability notwithstanding that there is at least one party within the police service who is in agreement with the information provided by this particular informant. That tip in and of itself does not refer to Mr. Jones specifically but is certainly indicative of the informant's degree of knowledge of the activities of the Crips.

[80] The paragraphs that follow at L, M, N, and O, refer to the investigation into the Hamzi shooting, the various parties involved, their histories and their connections to the Crips gang. CI#6 also alleges that Ateena Barnett carries a firearm in the glove compartment of his vehicle. According to CI#6, this firearm was sold to Barnett by Jones. According to police, a .9mm handgun is seized from the glove compartment of a vehicle occupied by Barnett in the course of a police traffic stop. Again, the level of detail provided with respect to the calibre of the firearms as well as the parties involved is significant, and in my view assist in assessing overall reliability notwithstanding that Mr. Jones is not always specifically mentioned in those paragraphs. The same can be said of paragraphs T, V, W, X and Y.

[81] In paragraph P, the .9mm handgun seized from Ateena Barnett is alleged to have been purchased from Rasta [Jones]. Corroboration for this aspect of the tip is the close proximity of the traffic stop described above to Tristan Jones' residence. In my view, that is not a particularly convincing piece of corroboration as to the source of the .9mm handgun.

[82] CI#6 goes on to describe Mr. Jones as having sold three firearms to the Al-Enzi brothers. Corroboration of this tip is a traffic stop whereby two Al-Enzis are found in a vehicle, along with a third occupant and a handgun. The third occupant tells police that it belongs to the Al-Enzis. It is important to note that the provenance of the Al-Enzi firearm is not corroborated. Still, the information provided as well as its accuracy tend to support this informant's reliability.

[83] CI#6 indicates that Rasta is supplying marijuana to Crips members for their personal use. CI#6 indicates that Rasta gets his weed from an unknown supplier a pound or two at a time. This information is corroborated by reference to other portions of the affidavit, which set out text messages between Rasta (Jones) and Waldron where they arrange for the purchase of marijuana in quantities such as a pound or a quarter pound. In my view, this information is compelling and corroborated.

[84] CI#6 provides significant information in relation to firearm activity in the City of Ottawa, specifically associated with the Crips street gang. Corroborated information includes calibre, individuals involved, and location of firearms. While not every detail of the information is corroborated, there is, notwithstanding, compelling information consistent with the informer's source of knowledge that is expansively confirmed through independent investigative sources. In my view there was ample information provided to the issuing justice to assess and ultimately rely on this informant's information. I find it is compelling, reliable and corroborated.

(g) CI#7

[85] CI#7 indicates the following:

• a. Dreads is a firearms trafficker to members of the Crips street gang;
• b. A description of Dreads;
• c. Dreads works at The Spot clothing store;
• d. Dreads lives on Eiffel with his girlfriend;
• e. Dreads sells firearms, marijuana, gold and shoes. Firearms and marijuana are not sold from The Spot, but rather from his residence. Gold and shoes are sold from The Spot;
• f. CI#7 has purchased marijuana from Dreads at his home;
• g. Within the last few months Dreads has sold three firearms to Crips members;
• h. Dreads sold a .380 handgun to Crips member Ali Najdi that has since been stolen;
• i. Dreads sold a .9mm to Crips member Ateena Barnett;
• j. Dreads sold a handgun to Crips member Burhan Hassan;
• k. CI#7 was told by a "Dexter" that the Al-Enzi family have bought up to 10 firearms from Dreads;
• l. The going price for a handgun is $3000.00 with ammunition;
• m. Dreads will sell ammo with the handgun.

[86] CI#7 has been providing information to authorities for 3 years. The affiant describes this informant's reliability by referencing search warrants, arrests and charges, past criminal history, motivation and source of information. This informant is associated with persons of interest to the investigation and has also participated in a transaction with Jones, adding to this informant's reliability.

[87] With respect to item a), the corroboration detailed in the affidavit does not, in my view actually offer corroboration. While the affiant references various police reports, no information is actually offered. There is simply a statement that five handguns have been seized from Crips members and associates and that the source of these is Jones. This is an instance of a conclusory statement in my view. The subsequent reference to text messages linking Jones to firearms trafficking is also conclusory, however, within the context of the entire affidavit, such text messages do indeed exist and are reproduced and analyzed. Only a portion of the passage is, in my view corroborated.

[88] Items b), c) and d) are purely biographical pieces of information and the corroboration is necessarily biographical as well. Items e) and f) are compelling pieces of information given the first hand nature of the drug purchase by CI#7, as well as the corroboration offered by the surveillance conducted in the course of the investigation.

[89] Items g) and h) are not corroborated at all, while item k) is second hand information. Items l) and m) on the other hand are corroborated in the text message portion of the affidavit. Item i) is, in my view corroborated in so far as Ateena Barnett is the occupant of a car in which a .9mm handgun is located in the glove compartment. J) is partially corroborated in that Burhan Hassan is confirmed to be a member of the Crips street gang.

[90] Overall, CI#7 can be described as reliable, the information provided generally compelling and to a large degree corroborated. While there are instances where the information is not corroborated, these arise most often in areas that are the primary purpose of the current investigation. In addition, these areas are ones where informants are cross-corroborating the information. When considering the totality of the information set out, I find that it is compelling, reliable and corroborated.

(h) CI#9

[91] CI#9 indicates:

• a. A male named Stacks met with CI#9 in the South end of the city;
• b. Stacks drives a blue Lexus;
• c. Stacks admitted to trafficking in firearms in front of CI#9;
• d. Stacks explained how he had firearms shipped in crates from Calgary;
• e. Stacks advised CI#9 that he has access to several different firearms for sale;
• f. Stacks advised that he is in business with his uncle.

[92] CI#9 has been an informant with the OPP. He is a first time informer with the Ottawa Police Service. Criminal history is set out although there is no information as to prior reliability with the OPP. In addition, because of excising, it is not possible to determine the connection between the informant and the subjects of the investigation. As a result, there is very little for me as the reviewing justice to ascertain reliability.

[93] Items a) and b) are biographical although I do note that the basis for linking Stacks to Waldron is set out and it is reliable. In addition, while there is some cross-corroboration that is suggested, it is with CI#4 who's information I have determined not to satisfy the criteria for reliance.

[94] Items c) through e) are presented as first hand information. The corroboration provided includes text messages as well as the prior Alberta investigation including wiretaps. This investigation is detailed at various points in the affidavit. As a result, the authorizing justice would have been familiar with the reference and in a position to assess the tip as against that information. In my view, these passages are indeed corroborated as suggested by the affiant.

[95] Overall, while this informant's reliability has not been tested in the manner of one with a longer history, the information provided was corroborated through both independent investigation, as well as cross-corroboration through other informants. As a result, any weakness in the area prior performance is made up for through the sourcing and corroboration provided to the authorizing justice.

[96] One of the criticisms levelled at the affiant's drafting concerns what the Applicants have termed "boilerplate language" when describing past CI assistance. In that regard, while the affiant has used consistent language with all CIs, the details have been particularized to each individual CI. There is nothing wrong, in my view, in the use of consistent language as between informants, so long as the information has meaning. In that regard, the affiant does not simply state that the informant has been helpful in the past, which is indeed meaningless boilerplate language, but actually indicates how with information on warrants, seizure, charges, pleas and challenges. In fact, in my view the consistency of the language is more helpful to the issuing judge than had the affiant attempted to vary the manner and language used to communicate the information.

[97] In my view, with the exception of CI#4, whose information will be excised altogether, the information gathered through the informants is compelling, credible and corroborated.

Jermaine Smith

[98] The principal issue with respect to this Applicant concerns the sufficiency of the information to support the conclusion that intercepting this Applicant's communications would provide evidence of the commission of an offence.

[99] The Criminal Code requires that an affiant name all persons who may be intercepted in the course of the investigation when there is reason to believe their communications will assist. The intrusive nature of wiretapping means that innocent third parties may be intercepted on the phone along with the named targets of the investigation. Indeed, in R. v. Findlay, [1985] O.J. No. 2680, the court struggled with that very issue:

The private communications of a known person may be the subject of an authorization even though that person is not believed to be involved in the commission of the offence, provided that there are reasonable grounds to believe that the interception of the private communications of that person will assist in the investigation of the facts…

(at par 84)

[100] It is important to emphasize that the threshold to name someone in wiretap authorization as a "known party" is a low one. In R. v. Schreinert, [2002] O.J. No. 2015(C.A.), the Court of Appeal opined:

the threshold for naming a party as a "known" party is a low one. Police need not have reasonable and probable grounds to believe that the party is involved in the commission of an offence. Rather, it is sufficient if police know the identity of the party and have reasonable and probable grounds to believe that interception of that party's communications may assist in the investigation of an offence.

It was not necessary for police to have determined precisely how Mr. Winter's communications could assist in the investigation of an offence at that point. It was sufficient that police had identified him and considered that his communications that they had intercepted to that point appeared to be relevant.

(at par 43 and 45; emphasis added)

[101] The policy reasons for such a low threshold flow from the potential breadth of application of wiretapping and the need for the authorizing justice to appreciate the far-reaching consequences of the authorization in terms of persons whose communications may be intercepted. Despite this low threshold, did police indeed have such grounds?

[102] There is little information contained in the Affidavit concerning Mr. Smith except what was provided by informant #3 and it is not particularly detailed with respect to this Applicant. In the corroboration section of this CI's information, the affiant points to a degree of association as between Waldron and Smith. This association was obtained through a review of police occurrence reports where the two are seen together four times in five years. This information, standing alone is not compelling and does not meet the required threshold. I do add however, that in a later section of the affidavit, at par 136, the affiant relates a traffic stop wherein Smith attends at the stop in order to lend assistance to Carlyle and Jaffari Waldron. Carlyle had been pulled over as he was a suspended driver. Smith arrived on scene to drive the car for the Waldrons. He was however also found to be a suspended driver. This linkage, in my view is quite compelling and is suggestive of more than a casual acquaintance.

[103] In a subsequent section of the affidavit, namely at par 122-124, the affiant relates information with respect to a search warrant executed at Weyburn Street. It is informant information and yet there is no information to describe this informant at all: source of information, association with the targets, past informant history, past criminal history if any. It is tantamount to an anonymous tip.

[104] The information provided was that an individual named Axel Mutama was in possession of a handgun, having purchased it from Jermaine Smith at his apartment on Bank Street in July 2010. The firearm was originally from Edmonton, where an unknown trafficker had obtained it from the United States. On October 29, 2010, Ottawa Police executed a search warrant at the Weyburn address and recover a loaded Hi-Point model CF380 semi-automatic handgun. Mutama has been charged with various firearms offences. The fact that a firearm was indeed recovered from Mutama at the Weyburn address is significant corroboration in my view. While the absence of any information in relation to the informant is problematic, it is nonetheless made up for in the nature of the tip provided and the execution of the warrant, which proves the information correct. This is one of the instances where the lacunae in one area (information to assess reliability) are made up for in others (degree of corroboration).

Conclusion Regarding Whether the Authorizing Justice Could Have Issued the Part VI Authorization

[105] Concerning Applicants Waldron and Jones:

In my opinion, when the affidavit is viewed as a whole, which is indeed the approach I must take, there was sufficient information before the authorizing justice such that he could indeed issue the authorization. Even excising CI#4's information, the authorizing justice was provided with compelling, reliable and corroborated informant information and, placing that information alongside the other fruits of the investigation, the totality of the information contained in the affidavit raised the information beyond mere suspicion, such that reasonable and probable grounds existed to believe that a) the offences described were being committed and b) that the interception of private communications would afford evidence of the offences.

[106] Concerning the Applicant Jermaine Smith

In my view, when considering the affidavit as a whole, there are reasonable grounds to believe that intercepting Mr. Smith's communications would assist the investigation of an offence. Smith and Waldron have more than a simple association as is evidenced by Smith being called to assist with a police traffic stop. There is compelling information associating Waldron with firearm offences. There is compelling information associating Smith with a firearm offence. In my view, there were objective grounds to believe that intercepting Smith's private communications would yield evidence of the offences being investigated.

3. The Sufficiency of the Grounds to Obtain the 2nd Part VI Authorization [Polowin Authorization Dated January 12, 2011]

[107] Given my conclusion with respect to the November 12, 2010 Authorization, the second Authorization also stands with respect to all Applicants.

4. The Exclusion of All Intercepted Communications Pursuant to Section 24(2) of the Charter of Rights

[108] Given my conclusions with respect to the Authorizations, it is not necessary for me to consider this issue.

5. The Sufficiency of the Grounds to Obtain Criminal Code of Canada and Controlled Drugs and Substances Act Warrants to Search

[109] To begin with, section 8 of the Charter provides that everyone has the right to be secure against unreasonable search and seizure. Judicial interpretation of this section has attempted to balance legitimate state interest in the detection and prevention of crime and the fundamental societal value of being free from unwarranted state intrusion on privacy. Accordingly, the minimal constitutional requirements for a lawful search are the following:

• a. prior judicial authorization;
• b. based on reasonable and probable grounds;
• c. that an offence has been committed; and
• d. that there is evidence to be found at the place to be searched.

(Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at pp.161-162 and 167)

[110] The statutory pre-conditions for the issuance of a warrant to search under section 487 of the Criminal Code are reasonable grounds to believe a) an offence is being committed and b) that evidence in relation to the offence will be found in the place to be searched. With respect to a warrant to search under section 11 of the Controlled Drugs and Substances Act, there must be reasonable grounds to believe that a) a controlled substance, offence related property or anything that will afford evidence of an offence under the act and b) is in a place.

[111] Again, as stated above, the basis for assessing reasonable and probable grounds is founded upon "credibly-based probability". (Hunter v. Southam, ibid at p. 167) It is more than suspicion but less than proof beyond a reasonable doubt or a prima facie case. I pause to note that the parties did not argue that the affiant did not have the subjective belief that reasonable grounds existed. Rather, issue is being taken with the objective sufficiency of those grounds. (See R. v. Storrey, [1990] S.C.J. No. 12 (SCC))

[112] The standard of review of a search warrant is the same as set out above in R. v. Garofoli and so I will not repeat the factors previously listed that must be borne in mind.

[113] The applicants contend that if the intercepted communications are excised, there is an absence of grounds for the issuance of the warrants. The Crown concedes that point. However, even in the absence of excision of the intercepted communications, the Applicants submit that reasonable and probable grounds did not exist. This argument is based on what they maintain is dated information and, given the nature of the items to be searched for, the resulting inability to conclude that the evidence would be at the locations to be searched.

Mr. Waldron

[114] With respect to firearms, the ITO sets out text message information from the very beginnings of the investigation. These communications between Waldron and Jones reference acquiring, selling, and pricing firearms. The first communications begin in late November 2009 and continue on to February 2011. I note that with respect to the firearms, there are instances where months of inactivity can be noted between alleged transactions. For example, see par 5.16 and 5.17 where there is a gap of 3 months between alleged firearm activity. Given the nature of the commodity at issue, the fact that there are such periods of inactivity is not surprising as is noted by the affiant. Furthermore, given the length of time over which this activity is alleged to occur, the inactivity following February 11, 2011 up to the time the ITO is sworn on March 7, 2011 is not indicative of a cessation of activities. The information provided by the affiant in section 8 of the ITO in relation to the retention of firearms is fair and information the issuing justice could rely upon with respect to the grounds to believe that the items to be searched for would be at the locations described.

[115] The affiant set out paragraph 4.7 the belief the Waldron was trafficking in firearms and drugs from his residence on Lebreton St.. Mention is also made of Waldron's vehicle, a blue Lexus, assisting in the distribution of marijuana.

[116] The Information to obtain sets out intercepted communications indicative of trafficking in marijuana at paragraphs 5.70, and 5.77-5.84. Waldron appears to buy a quarter pound of drugs from Jones every few weeks. There are also instances of communications with Smith detailing transactions involving drugs. It was available and reasonable for the issuing justice to infer that the activity above continued up to the period when the warrant was issued and thus that there would be marijuana and drug trafficking paraphernalia at the location to be searched.

Mr. Jones

[117] The same comments made above with respect to Waldron also apply Jones concerning both firearms and drug trafficking information. In addition to this, there is further information found at paragraphs 5.23, 5.26-5.31 in relation to firearms and their availability through Jones. At paragraph 5.30 there is a comment made by Jones suggestive of his possession of a weapon for his own use. There is no suggestion that this weapon is ultimately disposed of despite later discussion of a shipment having been dealt with.

[118] With respect to the allegations of drug trafficking, the informant sets out regular communications as between Jones and Meyer (5.71-5.75), Jones and Waldron (5.77-5.80) and Jones and Cooks (5.95-5.106) in relation to arrangements for the purchase, the sale and the movement of marijuana. The materials demonstrate a constant and steady supply of drugs, including distribution and sale of drugs, over the period set out in the ITO. In addition, the ITO sets out that Meyer delivers the drugs to Jones at his residence at 967 Eiffel Ave. During surveillance, he is observed entering and then exiting the residence with a backpack and guitar case.

Mr. Smith

[119] At paragraphs 5.32- 5.35 Smith involvement with Waldron and various discussions about firearms are set out. AT 5.42 Smith undertakes to obtain ammunition for a purchaser. At 5.43-5.44 the intercepts reveal shipments of firearms and prices. The affidavit continues at par 5.45-5.59 to detail offences involving Smith and the acquisition or disposal of firearms and ammunition. The information begins in November, 2010 and continues on through the mid-February 2011.

[120] The evidence in relation to the Applicant Smith and drug trafficking is set out at paragraphs 5.81 and following. The calls intercepted show many communications with a Christian Farhat who is selling Smith large amounts of marijuana. The drugs are delivered by Farhat to Smith's residence. On January 21, 2011, police intercept a call where Farhat is about to deliver marijuana to Smith. Police intercept Farhat's vehicle as it is on its way to Smith's apartment. 1400 grams of marijuana are seized.

[121] At par. 5.70 g) there is an intercepted call where he directs his spouse to pay a drug supplier $2850.00 as he is absent from the apartment at the time. This intercept was February 9, 2011. Smith is also heard to discuss with Waldron, on several occasions, the availability of various strains of marijuana. At one time it is for a purchaser while at others Waldron and Smith discuss supply. (Par 5.81-5.84) Further on the affiant sets out information in relation to an associate of Smith's, whom he supplies, engaged in selling marijuana from the apartment a few floors up from Smith. (5.90-5.94)

[122] With respect to the delay in swearing the ITO I note, and it is set out in the body of the information, that there is approximately two-week delay between receipt of the latter intercepted communication and its review by the affiant. Many of the intercepts are reviewed in mid-February. In addition, I also note this is a significant project, spanning some 18 months and at this stage, involving warrants to be executed at 10 different locations, 11 different suspects and 30,000 intercepts. In view of this, I do not find it unreasonable that there is a delay of a few weeks in assembling the required ITO.

[123] I find that given the totality of the circumstances, there existed a sufficient basis for the issuing justice to conclude that reasonable and probable grounds existed for the issuance of the warrants to search the various residences. In other words, there was "reliable evidence that might reasonably be believed on the basis of which the authorization could have issued". There is an allegation that there was an insufficient basis to issue a warrant to search a blue Lexus belonging to Waldron. While there is mention of this in the ITO, I have not been provided with a warrant to search setting out such a location. As a result, I am unclear as to whether such a location was actually searched.

6. The Exclusion of All Fruits of the Searches Pursuant to the Warrants to Search in Accordance with Section 24(2) of the Charter of Rights

[124] I need not determine this issue given the conclusion I have reached above.

Disposition

[125] The Applications are dismissed.

Released: September 27, 2012

The Honourable Justice J. V. Loignon