CITATION: R. v. Simmons-McKenzie, 2019 ONCJ 127
DATE: 2019-03-06
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
TYRONE SIMMONS-McKENZIE
Before Justice M. Greene
Reasons for judgment sections 8 and 24(2) of the Charter
G. Hession-David ………………………………………...……………………… for the Crown
R. Fedorowicz ………….………………………………………… for Mr. Simmons-McKenzie
[1] Mr. Simmons-McKenzie is charged with fraud related offences in relation to his alleged activities with members of an alleged criminal organization called HOK. Mr. Simmons-McKenzie alleges that the police, in obtaining a production order on August 2, 2018 violated his rights as guaranteed by sections 7, 8 and 11(d) of the Charter. It is his position that it was an abuse of process to even attempt to obtain the production order in 2018 and that there were insufficient grounds for the production order to be issued. He seeks as a remedy the exclusion of the bank records obtained as a result of this production Order. Crown counsel takes the position that no Charter rights were violated, no abuse of process took place and that there were sufficient grounds to issue the Order.
Background
[2] During the course of an investigation into Mr. Simmons-McKenzie and other alleged members of HOK, a search warrant was executed at his residence. The police then used the items found in Mr. Simmons-McKenzie’s residence as a basis to obtain production orders for numerous banks that Mr. Simmons-McKenzie allegedly used to commit fraudulent transactions. Mr. Simmons-McKenzie was eventually arrested with many others and charged with fraud and gun related offences.
[3] Mr. Simmons-McKenzie is being tried with six other defendants. The trial began in January, 2018. One year later, it is still not completed. At the beginning of the trial, all seven co-accused brought an application to exclude communications that had been intercepted by the police. This motion took significantly longer than originally anticipated and as a result additional days were required including weeks set aside for August 2018, September 2018, December 2018, January 2019, and February 2019.
[4] In addition to the above motion, Mr. Simmons-McKenzie also brought a motion to exclude items found in his residence pursuant to a search warrant. In a ruling dated July 8, 2018, I found that Mr. Simmons-McKenzie’s section 8 Charter rights were violated and pursuant to section 24(2) of the Charter, I excluded all the items found in Mr. Simmons-McKenzie’s residence.
[5] In his written application filed in support of the original section 8 motion, Mr. Simmons-McKenzie also asked for the exclusion of “any derivative evidence” arising from the search, namely records “for various financial institution”. This “derivative evidence”, was obtained through production orders. Neither defence counsel nor the Crown provided the court with the ITOs in support of the production orders that led to the seizure of the derivative evidence. Moreover, no arguments were made about whether the production orders could be upheld if the information obtained from the search of Mr. Simmons-McKenzie’s residence was excised from the ITOs filed in support of the production orders. Furthermore, no oral argument or additional written argument was made on the admissibility of this “derivative evidence”. As a result, no ruling was made by the court in relation to the admissibility of any of the bank records obtained through the production orders.
[6] Sometime after receiving the July 8, 2018 ruling, Crown counsel advised counsel for Mr. Simmons-McKenzie that she was not going to tender any of the material obtained from the execution of the production orders as it was her view that, in light of my earlier ruling, the production orders could not stand. Instead, on August 2, 2018, the police prepared a new ITO and obtained a new production order to seize bank records in relation to Mr. Simmons-McKenzie from the Bank of Montreal. The production order was granted by the same judge who had issued the previous search warrants and production orders. The material provided in response to the August 2, 2018 production order is the exact same material that the police received from BMO in response to the 2016 Production order.
[7] Counsel for Mr. Simmons-McKenzie seeks to exclude the results of the August 2, 2018 production Order on BMO.
Issues raised
[8] Mr. Simmons-McKenzie raises the following issues:
That by virtue of my July 8, 2018 ruling, the Crown is estopped from entering into evidence the BMO bank records obtained through the August 2, 2018 production order.
That it was an abuse of process to attempt to obtain these records through a new production order and as such the records should be excluded. Encompassed within this argument is that the production order violated Mr. Simmons McKenize’s section 7 and 11(d) Charter rights.
The ITO does not disclose a basis upon which the production order could be issued.
Issue Estoppel
[9] In Mr. Simmons-McKenzie’s written argument counsel took the position that this court had already ruled on the admissibility of the bank records from BMO. This is not the case. While brief reference was made for this remedy in his written argument, the material required to address this issue was never provided to the court (namely the ITOs in support of the production orders), counsel did not make any meaningful argument on this issue and this court never made a ruling in relation to the derivative evidence. Instead, after receiving my July 8, 2018 ruling, Crown counsel took the position that she would not attempt to admit the bank documents that were obtained as a result of production orders linked to the material seized from Mr. Simmons-McKenzie’s residence. Despite the absence of any judicial ruling on this point, counsel for Mr. Simmons-McKenzie maintains that this court is estopped from admitting the records obtained as a result of the 2018 production order because of the Crown’s decision to not attempt to admit into evidence the results of the 2016 production order. In light of this backdrop, the question properly framed is whether the doctrine of issue estoppel applies where the Crown decides a legal issue in favour of the defendant.
[10] The legal doctrine of issue estoppel is a narrow rule of law that is meant to ensure fairness to an accused person, to avoid inconsistent verdicts and to ensure finality in rulings. The courts, while recognizing the need to maintain this doctrine, have limited its scope. The Supreme Court of Canada, in R. v. Mahalingan, 2008 SCC 63, [2008] S.C.J. No. 64, articulated the scope of issue estoppel as follows at paragraph 2,
Properly confined, in accordance with a proper reading of the majority reasons in Grdic, issue estoppel plays an indispensable role in ensuring fairness to the accused, avoiding inconsistent verdicts and maintaining the principle of finality. Other concepts, such as abuse of process, character evidence rules, and the rules governing similar fact evidence, do not completely or effectively guarantee these goals. Though it shares many features with its civil law equivalent, criminal law issue estoppel is a stand-alone doctrine responsive to the unique characteristics of criminal trials. I would therefore decline to throw out issue estoppel in its entirety. Rather, I would modify the current Canadian approach to issue estoppel in criminal law, confining it to the focused compass of precluding the Crown from leading evidence which is inconsistent with findings made in the accused’s favour in a previous proceeding.
Under the present legal approach to issue estoppel, the focus is on whether or not a factual issue has already been decided in the accused’s favour. It is not every factual issue in a trial resulting in an acquittal that is estopped from being litigated in a subsequent trial. It is only those issues that were “expressly resolved or, given how the case was argued, had to be resolved for there to be an acquittal” (see paragraph 23 of R. v. Mahalingan, supra).
[11] This narrow scope of issue estoppel is consistent with the purpose of the doctrine which is fairness to the accused person. The Court stated at paragraph 39 of R. v. Mahalingan, supra,
In my view, it is clear that fairness to the accused requires that an accused should not be called upon to answer allegations of law or fact already resolved in his or her favour by a judicial determination on the merits. This is the most compelling rationale for retaining issue estoppel in criminal law, as it goes to the core tenets of our criminal justice system. The state has the right to charge an accused and to prove the facts at a trial of the charge. If a judge or jury conclusively decides a fact in favour of the accused, including via a finding of a reasonable doubt on an issue, then the accused should not be required in a subsequent proceeding to answer the same allegation. To require, in effect, a second defence of the issue would be to violate the fundamental function of res judicata.
In R. v. Gushue, 1979 CanLII 56 (SCC), [1980] 1 S.C.R. 798, the court summarized the law at paragraph 25,
In summary, the majority reasons in Grdic stand for the following proposition. The Crown is estopped from leading evidence which is inconsistent with findings made in a previous trial, whether those findings were expressly made in the accused’s favour or resolved on the basis of a reasonable doubt. Issue estoppel applies only to findings on a prior trial (as held by Blair J.A. in this case). Further, the determination of whether an issue was decided at the first trial will be a factual issue at the second trial in each case. In my view, these propositions should be affirmed as correct statements of the law. Moreover, it should follow from these propositions that the crown is permitted (absent the operation of the other rules of evidence) to lead evidence relating to issues litigated in an earlier proceeding: (I) if the issue was not decided in the accused’s favour in the earlier proceeding; and (2) if the issue was decided in the earlier proceeding, but the Crown is not seeking to use the evidence to contradict the factual finding on that issue at the previous trial.
[12] In the case at bar, the court did not make any findings of fact or law in relation to the 2016 production orders, in fact the court was not given a copy of the ITO filed in support of the 2016 production order for BMO until the material was filed in support of this application. Moreover, this court has not made any prior findings of fact or law as it relates to the 2018 production order. A decision made by Crown counsel to not tender evidence, even if based on her legal opinion that it would not be admissible, is not the same as a judicial finding of fact or law. Given the narrow scope of the doctrine of issue estoppel, it is my view that the doctrine should not be extended to include these kinds of decision made by the Crown. I cannot think of any legal or policy reason to extend this doctrine in the manner requested by the defence.
[13] Even if this court had issued a judgment in relation to the 2016 production order, the ITO and production order presently in issue are completely different documents and the grounds for issuing the new production order are different from the grounds in support of the 2016 production order. Simply stated, no legal or factual issues had previously been decided about the 2018 production order. I therefore find that issue estoppel does not apply.
Abuse of Process
[14] Counsel for Mr. Simmons-McKenzie further argued that it is an abuse of process for the Crown and police to obtain a new production order to seize evidence that the Crown had identified as being otherwise inadmissible because of an earlier Charter ruling.
[15] The doctrine of abuse of process, allows judges to grant the remedy necessary to prevent an abuse of the court’s process. The concept of abuse of process “was described at common law as proceedings unfair to the point that they are contrary to the interest of justice (Toronto (City) v. CUPE, local 79, 2003 SCC 63, [2003] S.C.J. No.64). In R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, McLachlin J (as she then was) described the doctrine of abuse of process as follows,
... abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community's sense of fair play and decency. The concepts of [page102] oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice (at p. 1007).
[16] In the case at bar there is no basis to conclude that the proceedings or the production order in issue was a result of oppressive or vexatious conduct. The Crown assessed whether or not the 2016 production order was valid based on my July 8, 2018 ruling, and having concluded that they were not, chose not to tender this evidence. The Crown did not then attempt to obtain new production orders for all the bank records. Instead, she only sought and obtained a production order for the BMO records which was the one bank where, after an evaluation of the case, the police and Crown concluded there were independent grounds to obtain a new production order. Then, in drafting the ITO, the affiant included the fact of my July 8th, 2018 ruling and a copy of the judgment for the reviewing judge to consider. In my view, this procedural history rebuts any suggestion that the proceeding is vexatious or oppressive.
[17] The real question is whether or not obtaining a new production order in the case at bar violates the fundamental principles of justice. This latter category, unlike issue estoppel which is quite narrow in scope, is meant to have a wide net so as to capture a wide assortment of conduct that would impact the fairness of the trial process and the public’s confidence in administration of justice. Counsel for Mr. Simmons-McKenzie argued that admitting the fruits of the 2018 production would offend society’s view of fairness and therefore the principles of fundamental justice because:
(a) One cannot un-see what has been seen;
(b) It violates the principle of finality;
(c) It offends the principle that a defendant should know the case he has to meet;
(d) It allows for a collateral attack on my order of July 8, 2018;
(e) Crown gets a benefit from the intermittent nature of the case; and,
(f) Would encourage officers to disobey the general requirement of making full, frank and fair disclosure in the ITO.
[18] While I appreciate the concerns expressed by counsel, in my view, the Crown/police decision to obtain a new production in August of 2018 for the BMO records for Tyrone Simmons-McKenzie and the subsequent production order is not an abuse of process. I will address each of counsel’s concerns.
a) One cannot un-see what has been seen.
[19] One of the main arguments advanced by counsel for Mr. Simmons-McKenzie was that the police, in drafting the new ITO in 2018, relied on information gleaned from the results of the 2016 production order, either intentionally or unintentionally. Counsel referred to a couple of specific pieces of information included in the 2018 ITO to support his argument. It was his position that these pieces of information, which form the foundation for the 2018 ITO, were only known to the police because they had read the bank records provided back in 2016. One example relied upon by counsel for Mr. Simmons-McKenzie was the names for whom the officers wanted the bank records. The officers requested a production order for BMO bank records for the defendant, Tyrone Simmons-McKenzie, but also for the name “Tyrone McKenzie” and “Tyrone Simmons”. The original ITO only asked for bank records for Tyrone Simmons-McKenzie and for bank records in relation to specific bank cards found in Mr. Simmons-McKenzie’s residence. This court was advised that in response to the 2016 production order, records for a Tyrone McKenzie and Tyrone Simmons were provided because the bank cards were in those names. Counsel argued that the bank card number secured during the unlawful search of Mr. Simmons-McKenzie’s residence led to the knowledge that bank records exist in the name of Tyrone Simmons and Tyrone McKenzie. But for this knowledge, the police would have only asked for bank records for Tyrone Simmons-McKenzie in 2018.
[20] Crown counsel argued that the police were not relying on the results of the 2016 production order when they included the two additional names in the 2018 ITO. The name Tyrone McKenzie came from information received from the Bank of Nebraska in October of 2017. This bank became known to the police during a separate but related investigation. The bank indicated in an affidavit that a fraud had taken place on one of their customers and that the person who received the funds was Mr. Tyrone McKenzie through the BMO. It was this information coupled with the information learned from the intercepted communications that enabled the police to link the Tyrone McKenzie allegedly involved in the Bank of Nebraska fraud, with the defendant before the court. With this backdrop, it was reasonable for the police to infer that Mr. Simmons-McKenzie was using derivatives of his name to commit frauds. It was only reasonable for the police to then seek out documents not just for Tyrone Simmons-McKenzie, but also for Tyrone Simmons and Tyrone McKenzie
[21] I am mindful that it is impossible to know now whether or not the police would have reasoned this way had they not seen the records produced in 2016, but given the clear line of discoverability, I cannot find that they would not have reasoned this way nor do I view it as improper for the police to take another look at the case in an attempt to further their investigation. In the case at bar the police appeared to avoid using material that was known or obtained as a result of the search of 165 Legion Road or the production orders that followed this search. I note that they did not attempt to obtain records from every bank, just from the BMO, the one bank where the police had the additional evidence from the Bank of Nebraska. This provides cogent evidence of an active attempt to avoid relying on material that may have been unlawfully obtained. In my view, the Crown need not prove beyond a reasonable doubt that the previous material was not in the minds of the officer when the ITO was crafted. The Crown need only establish that there is a clear route to having the information in the ITO without relying on the material obtained in the previous orders. I am satisfied that this has been established.
[22] Counsel for Mr. Simmons-McKenzie also argued that but for finding bank cards in Mr. Simmons-McKenzie’s residence they would not have known to seek out records from BMO. I agree that in 2016 the police would not have linked Mr. Simmons-McKenzie with BMO but in 2018, the police had the material from the Bank of Nebraska. The Tyrone McKenzie who received the fraudulent funds, received them through the BMO. In my view the intercepts coupled with the information from the Bank of Nebraska provide an adequate basis to conclude that BMO records in Mr. Simmons-McKenzie’s name (or a derivative of his name) would afford evidence of a fraud.
b) The Principle of Finality
[23] The Applicant also argued that obtaining a new production order mid-trial where the Crown has determined that the evidence originally obtained would be inadmissible violates the principle of finality. In my view, this is another way of arguing issue estoppel. For the same reasons that issue does not apply, the principle of finality has not been violated. There is nothing inherently unfair about a litigant attempting to preserve his/her case when a ruling has excluded certain pieces of evidence. For example, in trials for operating a motor vehicle while having a blood alcohol concentration of over 80, the Crown frequently relies on the certificate of analyst. Where, however, the court has deemed the certificate inadmissible because of notice issues or a breach of a statutory requirement, the prosecution may still call the breath technician to admit the results of the breath tests. Counsel frequently change the course of a trial to respond to or address a legal ruling. This is good advocacy and not improper.
[24] There may be occasions where a litigant is prejudiced by the unexpected change in evidence. Where this occurs, the court has an array of remedies available to resolve the prejudice besides automatic exclusion of the evidence. In the case at bar, there has been no suggestion that Mr. Simmons-McKenzie is actually prejudiced in his ability to mount a defence by the late notice of an alternative route to admitting the BMO bank records.
c) Knowing the Case One Has to Meet
[25] In the case at bar, counsel for Mr. Simmons-McKenzie argued that admission of the BMO records obtained as a result of the 2018 Production Order violates his rights as guaranteed by section 11(d) and 7 of the Charter because admitting evidence obtained by police only after the trial started violates his right to know the case he had to meet. Respectfully, I disagree. First of all, counsel has conceded that the BMO records obtained in August of 2018 are the exact same documents that BMO provided in 2016 and were disclosed to the defence long before this trial started. Secondly, it was only in July 2018 that Crown counsel told the Applicant that she would not be using the bank records. Counsel always knew the potential for these bank records to be used against him at trial. Thirdly, the new production order was obtained within a month of the Crown’s decision to not tender the BMO bank records. Therefore, the window of time where the Applicant was under the impression that the bank records would not be used was very brief. Finally, the Applicant was advised of the new production order and the Crown’s intention to rely on the BMO records months before the Crown closed its case, giving the Applicant sufficient time to prepare a defence. To that end, I note that counsel at no point asked for an adjournment to re-orient his case or complained of the late disclosure as impacting his ability to make full answer and defence. Even in this application, counsel has not indicated that he suffered any prejudice in his ability to prepare a defence based on the late disclosure of these documents (or more properly expressed the new decision to find an alternative route to admissibly for these documents). The failure to disclose in a timely fashion does not in and of itself equate with a violation of section 7 of the Charter. The Applicant must also show prejudice to his ability to make full answer and defence (see R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651 at paragraph 21).
d) Collateral attack
[26] Counsel for Mr. Simmons-McKenzie further argued that applying for a new production order is the functional equivalent of a collateral attack on my July 8, 2018 ruling. Again, I disagree. A new ITO was prepared in support of the new Production Order. This new ITO provided a completely new basis for obtaining the records that did not depend on unlawfully obtained evidence. In addition to providing a new basis for the production order, the affiant also outlined for the issuing justice the entire history of this case including the fact of the 2016 production order, my July 8, 2018 ruling and the fact that Mr. Simmons-McKenzie was in the middle of his trial at the time that the production order was being sought. This was not a collateral attack on my July 8, 2018 ruling, it was a completely new application made to a judge with full disclosure of the history of the proceedings.
e) The Crown unfairly benefits from the intermittent nature of this proceeding
[27] This case has not proceeded quickly and there have been numerous breaks. The intermittent nature of the proceedings was caused by the fact that counsel underestimated the amount of time that this case would require and when new dates were required, counsel were not available for significant periods of time to resume the case. In other words, the intermittent nature of these proceedings were, in part, based on court availability but also largely due to counsel’s unavailability. As with any trial that has lengthy adjournments there is always the risk that additional evidence will be found and there is no rule of the law that prohibits the police from obtaining new evidence even after the trial has begun as long as the Crown fulfills its ongoing disclosure obligations. In my view, there is nothing inherently unfair of the Crown using the downtime from this trial to strengthen its case. While obviously it would have been preferable for this case to have taken place continuously, but if the intermittent pace was not orchestrated intentionally to allow for the time to obtain a new production order, then I can see no unfairness with the Crown taking advantage of the delay in order to shore up its case.
f) Violates the Full, Fair and Frank disclosure rule
[28] Counsel for Mr. Simmons-McKenzie argued that since the affiant to the ITO in support of the 2018 production order to BMO was able to articulate grounds for the order, it necessarily follows that the affiant to the ITO for the 2016 BMO production order must have violated his obligation to be full, frank and fair when drafting the original ITO. I disagree. In the case at bar, the most significant piece of evidence referenced in the 2018 ITO was not in the possession of the police when the 2016 ITO was drafted and submitted to the issuing justice. The police did not intentionally hold back the information from the Bank of Nebraska, they just did not have it yet. The other difference between the two ITOs is that in the later ITO the affiant fleshed out the details around Mr. Simmons-McKenzie’s residence and one of the intercepted communications. While these items were in the possession of the police in 2016, the police have now had a longer period of time to review absorb and appreciate the importance of some of this evidence. In my view, there is no evidence that the addition of this material to the 2018 ITO is because the affiant of the 2016 ITO intentionally held back information. It is equally if not better explained by the police having a better appreciation of the case as a whole after having prepared for trial.
[29] The other significant area of expansion in the 2018 ITO relates to the telephone number attributed to Mr. Simmons-McKenzie. This appears to be fleshed out to respond to the deficiencies identified by this court in the July 8, 2018 ruling. The issuing justice was made aware of this fact because the issuing justice was provided with a copy of my July 8, 2018 ruling. In my view, there is nothing unlawful in preparing a new production order application that addresses deficiencies that have been identified by the court as long as the issuing justice is apprised of the procedural history, prior applications and prior refusals.
[30] Given the absence of evidence before this court that the affiant from the 2016 ITO intentionally withheld information from the issuing justice or that any material evidence that was in possession of the police at the time was not included in the ITO, I am unable to find that there has been a violation of the rule to provide full, frank and fair disclosure to the issuing justice.
[31] For all these reasons in my view there I no abuse of process, no 11(d) violation and no section 7 violation
Were there Reasonable and Probable Grounds to issue the Production Order?
[32] Counsel for Mr. Simmons-McKenzie argued that portions of the ITO ought to be excised because they are was misleading or because the information was unlawfully obtained (it was only known because the police read the BMO records obtained as a result of the 2016 Production Order). Counsel identified the excisions as follows:
a) The date of birth of Mr. Simmons-McKenzie;
b) The identifiers used in the ITO;
c) The suggested meaning to the code word “blue” in one of the intercepted communications: and,
d) The affidavit/letter from the Bank of Nebraska.
[33] In relation to the date of birth, the ITO makes reference to Mr. Simmons-McKenzie’s date of birth in two locations. The first time the date of birth is noted, the affiant wrote down the wrong date of birth. The second time the date of birth was noted in the ITO, the correct date of birth was recorded. Counsel argued that the date of birth should be excluded because it was incorrect in one location and therefore misleading.
[34] In my view the wrong date of birth at the beginning of the ITO is nothing more than a typo and as such should not be excised. I reach this conclusion because the proper date of birth is included in other sections of the ITO in particular in paragraph 24. Moreover, there were a number of Appendices to the ITO. Appendix D was a report by Det. Senyk. In this report, Det. Senyk reviewed the searches that were conducted on Mr. Simmons-McKenzie and the date of birth that was identified through the searches including CPIC and the ministry of transportation. Mr. Simmons-McKenzie’s date of birth was properly recorded throughout the Appendix D that was provided to the issuing Justice.
[35] In relation to the names used in the ITO, Crown counsel argued that it was reasonable for the officers to ask for records pertaining not just to Mr. Simmons-McKenzie but also for records of persons with portions of this name, but with the same date of birth given what the police learned from the intercepted calls and the Bank of Nebraska affidavit. According to the investigative results, the person on the intercepts was Mr. Tyrone Simmons-McKenzie, so this explains the search for the full name. It was equally reasonable that the police would ask for records under the name of Tyrone McKenzie given that this was the name of the recipient of the fraudulently obtained funds from the Bank of Nebraska. Ms. Hession-David argued that the Bank of Nebraska affidavit reasonably supports the inference that Tyrone Simmons-McKenzie was using variations of his name when engaging in fraudulent conduct through the banks. It was therefore reasonable for the police to ask for bank documents for Tyrone Simmons as well. I accept this argument and therefore find that there was nothing unlawful about using all three names in the ITO.
[36] In one of the intercepted communications referenced in the ITO, the affiant summarized an intercepted communication where it is alleged that Mr. Simmons- McKenzie used the code word “blue” to mean the RBC bank or the BMO bank. In the 2016 ITO, however, this same intercept was summarized and the affiant wrote that the word “blue” was only code for the RBC bank. No explanation has been provided for why the officers now believe the word “blue” was code for the BMO. The affiant also did not advise the issuing justice in 2018 that he now had an extended or different meaning for the code word “blue”. I am troubled by this addition and the lack of foundation for the belief that the word “blue” means BMO. In my view this should be excised from the ITO.
[37] Finally, counsel argued that the Affidavit from the Bank of Nebraska was obtained as derivative evidence from the search from Mr. Simmons-McKenzie’s residence and as such all references to the affidavit from the Bank of Nebraska should be excised from the ITO. Respectfully there is no foundation for this. It was explained through the Crown that this affidavit was provided during the course of a related investigation. I have no basis to find that it is derivative evidence.
Could the Warrant Have Been Issued
[38] In my judgment of July 8, 2018, I reviewed in detail the role of a reviewing judge on an application to quash a search warrant. The standard of review of production orders is the same (see R. v. Nero, 2016 ONCA 160, 2016 O.J. No. 1027 (OCA)). I will therefore not repeat these legal principles here. Suffice it to say, my limited role on this application is to determine whether or not the production order could stand once the erroneous material is excised from the ITO.
[39] The affiant wrote in the ITO that there are reasonable grounds to believe that Mr. Simmons-McKenzie is participating in a criminal organization and that he is committing an indictable offence with a criminal organization. In support of this assertion, the affiant wrote that Mr. Simmons-McKenzie is presently in the midst of a trial for this offence. The affiant also provided details about the HOK and some of its members. The exhibits to the ITO provide a very brief summary of why the affiant believes HOK is a criminal organization and why it is believed that Mr. Simons-McKenzie is part of HOK or committing offences with members of HOK. Moreover, summaries of some of the intercepted calls where Mr. Simmons-McKenzie allegedly discusses ongoing frauds with Mr. Kalonji were also provided to the issuing justice. In my view this is ample evidence to support a finding that Mr. McKenzie Simmons was committing the offence of fraud in association with a criminal organization.
[40] Counsel also argued that there was no evidence in the ITO that the BMO records would disclose evidence of the offences being investigated. In my view, this prong was also met. The affiant referenced specific communications between Mr. Simmons-McKenzie and Mr. Kalonji where their fraudulent activities were discussed. The affiant also summarized the affidavit from the Bank of Nebraska and provided a copy of this affidavit to the issuing justice. All this evidence, in my view, provides sufficient evidence that Mr. Simmons-McKenzie was involved in a fraud with members of a criminal organization. It also provides evidence that Mr. Simmons-McKenzie committed fraud through accessing different banks, one of which was the BMO.
[41] Excising the officer’s opinion that the word “blue” could be code for BMO does not result in the ITO providing insufficient grounds for the production order. In the conversation at issue, the question is posed whether the bank they were dealing with was “blue” to which Mr. Kalonji said “no”. Given that this call is not about a “blue” bank being used for a fraud, this excision does not meaningfully alter the basis for the production order.
[42] While I have found that there were clearly grounds to issue the production order, there is one significant problem with the actual order. It requires the bank to provide the banking records for a Mr. Simmons-McKenzie, Mr. Simmons or Mr. McKenzie with a date of birth of January 1, 1986 and passport number GF066764. The bank provided records for these same names and passport number but with a date of birth of January 24, 1986, which is Mr. Simmons-McKenzie’s real date of birth. In other words, the bank provided documents that were other than what was requested. As I previously noted, this appears to just be a typo on the order as opposed to a more significant error. In light of this fact, and the reality that the bank also had the passport number to confirm the identity of the person whose bank records were being sought, this does not invalidate the order.
[43] For all these reasons, I find that the production order is valid and the evidence obtained as a result of the production is admissible at trial.
Released March 6, 2019 ____________________________
Justice Mara Greene