Ontario Court of Justice

Date: July 31, 2020

Between:

Her Majesty the Queen

— AND —

Fayaz Alakoozi et al; R. v. Omer Gharibzada et al; Tamim Amem; Hassan Farouk et al; Girolamo Commisso et al; Salvatore Boccia et al; Tevin DaCosta; Gabriel Khoury; Alexander Yizhak

Before: Justice D.M. Porter

Heard on: July 14-16, 2020

Reasons for Judgment released on: July 31, 2020

Counsel

J. Dick and S. Adams — counsel for the Crown

G. Lafontaine and J. Kushnir — counsel for Girolamo Commisso

Sergei Manukian and Alexander Yizhak

E. Battigaglia — counsel for Giovanni Commisso

A. Newman — counsel for Gabriel Khoury

S. Pennypacker and A. Pester — counsel for Tevin DaCosta

M. Sciarra — counsel for Tamim Amem

C. Israel — counsel for Fayaz Alakoozi

Reasons for Judgment

Porter J.:

Introduction

[1] In a case management order of R.S.J. Aston J. Hall, dated June 22, 2020, amended July 15, 2020, I was appointed as a case management judge in relation to numerous charges in the above 10 informations pursuant to s.551.3(1)(g)(iii) and s.551.7(3) of the Criminal Code.

[2] Pursuant to that order I have heard a Garofoli application made by Girolamo Commisso, Giovanni Commisso, Gabriel Khoury, Tamim Amem, Fayaz Alakoozi, and Tevin DaCosta in an omnibus application which, pursuant to the order of R.S.J. Hall, and s.551.7(3) will apply in each of the trial proceedings in the 10 informations governed by the case management order.

[3] Further to a case conference held by audioconference on July 2, 2020 it was agreed by all counsel that oral submissions on the application would be made in court proceedings conducted remotely by audioconference, and that all accused were excused from attending in person or remotely, pursuant to s. 650(2)(b) of the Criminal Code. It was further agreed that accused who wished to attend could do so by joining the audioconference for the oral submissions, and that their counsel would inform the court if and when this occurred.

[4] A number of the accused including Girolamo Commisso, Giovanni Commisso, Gabriel Khoury, Alexander Yizhak and Sergei Manukian attended remotely by audioconference for most or all of the submissions.

[5] At the commencement of the oral submissions on July 14, 2020 I made an order under s.715.26 of the Criminal Code that I would preside over the application remotely and hear the submissions by audioconference, having regard to the Covid-19 pandemic, the challenge to maintain physical distance in a courtroom having regard to the number of counsel and accused involved, the fact that no viva voce evidence would be adduced, and the consent of all counsel to proceed in this manner.

[6] Further to the judicial pre-trial process conducted by R.S.J. Hall, it was agreed that this application would be principally conducted in writing, with a brief opportunity for oral submissions. All of the Applicants filed written submissions.

[7] Oral submissions were heard on July 14-16, 2020 on behalf of the Applicants and the Crown. Counsel for Messrs Alakoozi, Amem, and DaCosta chose to rely on the oral submissions of counsel for Girolamo Commisso, Giovanni Commisso, and Gabriel Khoury which contributed to an efficient presentation of the application.

[8] As the principal submissions were made in writing the written submissions filed by all parties were filed as lettered exhibits and included as part of the record in this application.

Overview

[9] This omnibus application challenges the naming of persons in 2 authorizations to intercept private communications issued by Mr. Justice J. McMahon on March 25, 2019 ("the first authorization") and May 21, 2019 ("the second authorization") in an investigation into criminal activity by alleged criminal organizations in Toronto known as the Deep Waters and Chester Le gangs. The criminal investigation was known as Project Kraken.

[10] The challenge includes a challenge to the inclusion of the telephone number of an individual named Maral Ashoury in an earlier Transmission Data Recorder warrant issued on Feb 11, 2019 by Justice R. Silverstein, which resulted in evidence included in the affidavit in support of the first authorization (ITO #1). The affidavit in support of the second authorization will be referred to throughout as ITO #2, and the affidavit in support of the TDR warrant will be referred to as the TDR-ITO.

[11] The written submissions filed by counsel challenged various search warrants and a tracking warrant which post-dated the 2 wiretap authorizations. Consideration of those issues was adjourned, with counsels' consent, until after the decision herein was made focussing on the naming of various accused in the first authorization, the naming of Mr. DaCosta in the second authorization, and the inclusion of Ms. Ashoury's telephone number in the Transmission Data Recorder warrant.

The Transmission Data Recorder Warrant issued February 11, 2019

[12] The Applicants Giovanni Commisso and Girolamo Commisso submit that both authorizations obtained in this investigation are fatally flawed as a result of the inclusion of Maral Ashoury's telephone number in the Transmission Data Recorder warrant issued February 11, 2019.

[13] On February 11, 2019 Justice Silverstein issued, inter alia, a warrant for a Transmission Data Recorder pursuant to s. 492.2(1) of the Criminal Code.

[14] Pursuant to paragraph 2 of the order, Justice Silverstein found that there were reasonable grounds to believe that the following offences against the Criminal Code have been or will be committed:

a) Participation in a criminal organization contrary to section 467.11 of the Criminal Code;

b) Unauthorized possession of a firearm contrary to section 92(1) of the Criminal Code;

c) Trafficking in Controlled Substances contrary to section 5(1) of the Controlled Drugs and Substances Act;

d) Conspiracy to commit, in relation to the offences set out above, contrary to section 465(1)(c) of the Criminal Code.

[15] Section 492.2(1) of the Criminal Code states:

"A justice or judge who is satisfied by information on oath that there are reasonable grounds to suspect that an offence has been or will be committed against this or any other Act of Parliament and that transmission data will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain the transmission data by means of a transmission data recorder."

[16] The Applicants do not claim that the TDR-ITO did not provide to Justice Silverstein material on which he could conclude that there were reasonable grounds to suspect that members of the Chester Le gang, or others assisting them, have committed, or will in the future commit, the offences listed in the TDR-ITO.

[17] Indeed, there was abundant evidence on which to base this reasonable suspicion. Examples of this information include the following:

(i) CS #2 advised with respect to the Chester Le gang that "The gang and its members are involved in criminal activity including drug trafficking, possession of firearms, and shootings": TDR-ITO, p. 12, para. 28.

(ii) CS #5 advised that "Chester Le guys are getting guns through Deep Waters guys": TDR-ITO p. 17, para. 31

(iii) CS #6 advised that "Chester Le guys have been committing robberies and shootings all over the city": TDR-ITO, p.18, para. 32.

(iv) CS #8 advised of conflict between the Chester Le gang and a rival gang south side Flemo and advised " CLE guys always have guns with them and do drive-by shootings in Flemo": TDR-ITO, p. 20, para. 34.

[18] The information in the TDR-ITO supported the statement of the affiant that "The Chester Le gang is very active in the trafficking of illegal narcotics and in the possession and trafficking of firearms.": TDR-ITO, p. 9, para.19.

[19] However, the Applicants submit that there is an insufficient evidentiary foundation to support including Ms. Ashoury as a named target in the Transmission Data Recorder warrant, which the Applicants submit consisted of "little more than she was living with Soheil Rafipour on December 24, 2019 [sic] at the time of his murder and that she was having an affair with the Applicant Girolamo Commisso": Commisso Factum, p.16.

[20] The Applicant Girolamo Commisso suggests that there were irreparable holes in the supporting affidavit as it relates to Ms. Ashoury as follows:

(a) There is an entire absence of evidence linking Ms. Ashoury to the membership of the alleged criminal organization;

(b) There is an entire absence of evidence that Ms. Ashoury was involved in any of the alleged criminal activity of the alleged criminal organization;

(c) There is an entire absence of evidence that Ms. Ashoury ever discussed, or was even aware of, the alleged criminal activity of the alleged criminal organization; and

(d) In fact there was an entire absence of evidence that Ms. Ashoury was involved in, or aware of any criminality of any sort being committed by anyone and certainly, not that she was communicating with anyone about it: Commisso Factum, p.17.

[21] A review of the entirety of the TDR-ITO sworn by Detective Constable Chris Hunt discloses the following important information in relation to the request to include Ms. Ashoury as a target of the Transmission Data Recorder warrant:

(i) Ms. Ashoury was present with Soheil Rafipour on December 24, 2018 when he was murdered; (TDR-ITO, p. 78, para. 61)

(ii) Ms. Ashoury was living with Soheil Rafipour at that time, but was in a relationship with Girolamo Commisso; (TDR-ITO, pp. 32,78)

(iii) Immediately after Soheil Rafipour was shot, Ms. Ashoury contacted Girolamo Commisso: (TDR-ITO, pp. 31-32, 78)

[22] While the TDR-ITO discloses no information alleging specific criminal activity by Ms. Ashoury, it contains substantial information, principally from confidential informants, alleging substantial criminal activity within a criminal organization by Soheil Rafipour, with whom Ms. Ashoury was living at the time of his murder.

[23] The following is a summary of the confidential information supporting the allegation of gang-related criminal activity by Soheil Rafipour in the TDR-ITO:

(i) TDR-ITO p. 14, para 29: Confidential Source ("CS") #3 advised that Soheil Rafipour is known as Caddi and was a Deep Waters guy and, along with Omer Gharibzada they supply guns and drugs to the Chester Le guys. He advised that Soheil Rafipour and the Deep Waters guys are involved with getting guns and drugs through the border. Caddi (Soheil Rafipour) and Deep Waters guys are supplying guns and cocaine to CLE guys;

(ii) TDR-ITO p. 16, para 30: CS #4 advised in 2017 that Soheil Rafipour was trying to import guns, cocaine, and heroin into Canada. Pictures of firearms are posted on Soheil Rafipour's Instagram account 24k.caddi. Rafipour is seen holding firearms in some postings. In one of the postings there is a picture of 2 handguns and a caption "Shoot so much guns I'm getting high off the gun powder";

(iii) TDR-ITO p. 17, para.31; CS #05 advised that "Chester Le guys are getting guns through the Deep Waters guys";

(iv) TDR-ITO p. 18 para. 32; CS #6 advised that Chester Le guys have been committing robberies and shootings all over the city;

(v) TDR-ITO p. 22, para. 36: CS #10 says Cadi [Soheil Rafipour] is one of the main members of Deep Waters;

(vi) TDR-ITO p. 24:CS #11 Says Caddy [Soheil Rafipour] is associated to members of a group calling itself Deep Waters.……. Caddy is also associated to members of a group calling itself CLE [Chester Le].

[24] It is clear that information from several confidential informants can provide mutual corroboration.

[25] As Code, J. stated in R. v. Abdirahim, 2013 ONSC 7420, [2013] O.J. 6170 (Ont. Superior Court) at para. 62:

"The Applicants conceded that two confidential informants can mutually corroborate each other. MacDonnell J. recently summarized the law on this point and cited the leading authorities in R. v. Ahmed et al 2012 ONSC 6266 at para. 200 where he stated:

With respect to the hostility between Tretheway and Woolner, all six sources essentially told the police the same thing. It was open to the authorizing justice to find that this enhanced the reliability and credibility of each of them. That is, he was entitled to regard their reports of what was going on as mutually corroborative: see R. v. Saunders (2003) 2003 NLCA 63, 181 C.C.C. (3d) 268 at paragraphs 14-15 (Nfld. C.A.), aff'd (2004) 2004 SCC 70, 189 C.C.C.(3d) 436(S.C.C.); R. v. Flo yd 2012 ONCJ 417, at para.76; R. v. McElroy 2009 SKCA 77, [2009] S.J. No. 416, at paragraphs 39-43 (Sask. C.A.)"

[26] In my opinion, the issuing judge was entitled to consider the several confidential source reports of Soheil Rafipour's gang-related criminal activity as mutually corroborating.

[27] As the affiant summarized, "This investigation has led to the identification of the drug and gun suppliers to the Chester Le gang. One of these suppliers has been identified as members and associates of the Deep Waters gang" (TDR-ITO, p. 9, para. 20.)

[28] In summary, the TDR-ITO contained abundant evidence to support a conclusion by the issuing judge that there were reasonable grounds to suspect that the stipulated offences have been or will be committed, namely participation in a criminal organization (section 467.11 of the Criminal Code), unauthorized possession of a firearm (section 92(1) of the Criminal Code), trafficking in controlled substances (section 5(1) Controlled Drugs and Substances Act), and a conspiracy to commit the above offences contrary to section 465(1)(c) Criminal Code.

[29] It is clear from the ITO that there was substantial information from several confidential sources identifying Soheil Rafipour as a key supplier of guns and drugs to the Chester Le gang, and therefore as an active participant in the criminal organization and other offences being investigated.

[30] In my opinion the evidence in the ITO establishing Maral Ashoury's relationship with Soheil Rafipour, who was shown to be heavily involved in firearm possession and trafficking, and trafficking in controlled substances, associated with Chester Le and Deep Waters, was sufficient evidence to allow the issuing judge to conclude that the transmission data from her telephone would assist in the investigation.

[31] As the Supreme Court of Canada noted in its detailed analysis of the "reasonable suspicion standard" in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 at para. 27:

"Thus while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard."

[32] Watt, J.A. has described reasonable grounds to suspect as follows in R. v. Mahmood, 2011 ONCA 693, [2011] O.J. No. 4943 (Ont. C.A.) at paras. 113-114:

"The standard 'reasonable grounds to suspect' in section 492.2(1) is less exacting than 'reasonable grounds to believe' that is required for a conventional search warrant. The standard is objective in nature and has been adopted by Parliament for searches in areas that involve lesser expectations of privacy: R. v. M(A) 2008 SCC 19, 2008 SCC19…at para. 77.

In the search context, a 'suspicion' has been characterized as an expectation that the targeted individual is possibly engaged in some criminal activity. A 'reasonable suspicion' means something more than a mere suspicion and something less than a belief based on reasonable and probable grounds. A sincerely held subjective belief is not a reasonable suspicion. To be reasonable, a suspicion must be supported by factual elements about which evidence can be adduced and permit an independent judicial evaluation: R. v. Kang-Brown 2008 SCC 18 …at para. 75; R. v. Simpson (1993), 12 O.R.(3d) 182 (C.A.), at p. 202."

[33] It is noteworthy that, for a warrant for a transmission data recorder to issue, there is no requirement that the issuing judge have reasonable grounds to suspect that the person associated with the telephone number has participated in any criminal activity.

[34] What is required is that there are "reasonable grounds to suspect that an offence has been or will be committed" and that the transmission data "will assist in the investigation of the offence".

[35] Accordingly, there was no requirement that the issuing judge have reasonable grounds to suspect that Ms. Ashoury was involved in the criminal activity being investigated before the transmission data warrant could properly be issued.

[36] In respect of the issuance of the transmission data recorder warrant, the Applicants Giovanni and Girolamo Commisso challenge the inclusion of Ms. Ashoury (or more precisely the "mobile telephone number 647-271-5240 being used by Maral Ashoury") in the transmission data recorder warrant.

[37] As noted by MacPherson, J.A. in R. v. Ebanks 2009 ONCA 851, 97 O.R.(3d) 721 (Ont. C.A) at para. 20:

"Judges reviewing wiretap affidavits or any materials in support of prior judicial authorizations work within a narrow jurisdictional compass. In R. v. Garofoli, [1990] 2 S.C.R. 1421 …. Sopinka J. summarized the standard of review at p. 1452 SCR:

"The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which is before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge"

[38] As McPherson J.A. noted in R. v. Ebanks, supra, at paragraph 21:

"The sole function of the reviewing court is to assess the record that was before the issuing judge, as amplified on review, and determine whether the authorization could have issued. This review has nothing to do with whether the reviewing court would have issued the authorization, as a Garofoli application at trial must not become a hearing de novo : see Garofoli at p. 1452 SCR."

[39] The limited scope of the review jurisdiction is the same whether the attack on the warrant is limited to a facial validity challenge or whether it is a sub-facial challenge which goes behind the form of the ITO to attack or impeach the reliability of its content.

[40] As Watt, J.A. states in R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376 (Ont. C.A.) at paras. 37-38:

"A facial validity challenge requires the reviewing judge to examine the ITO and to determine whether, on the face of the information disclosed there, the justice could have issued the warrant: R. v. Araujo 2000 SCC 65 at para. 19. The record examined on a facial review is fixed: it is the ITO, not an amplified or enlarged record: R. v. Wilson 2011 BCCA 252 ….at para. 39.

Sub - facial challenges go behind the form of the ITO to attack or impeach the reliability of its content: Araujo, at para. 50; and Wilson at para. 40. Sub - facial challenges involve an amplified record, but do not expand the scope of review to permit the reviewing judge to substitute his or her view for that of the authorizing judicial officer: Araujo at para. 51 and R. v. Garofoli ….at p. 1452. The task of the reviewing judge on a sub - facial challenge is to consider whether, on the record before the authorizing justice as amplified on the review, the authorizing justice could have issued the warrant: Araujo, at paragraph 51 and Garofoli, at p. 1452. The analysis is contextual: Araujo para. 54. The reviewing judge should carefully consider whether sufficient reliable information remains in the amplified record, in other words, information that might reasonably be believed, on the basis of which the enabling warrant could have issued: Araujo, at para. 52."

[41] On the basis of the information before the issuing judge for the Transmission Data Recorder warrant, I am satisfied that there was an abundance of information that might reasonably be believed on the basis of which the issuing judge could have reasonable grounds to suspect that the offences stipulated in the Transmission Data Recorder warrant had been or would be committed.

[42] I am further satisfied that there was sufficient reliable information concerning Ms. Ashoury's relationship with Soheil Rafipour, and abundant information concerning his involvement in the offences being investigated, and the activities of criminal organizations, that the authorizing judge could have concluded that obtaining the transmission data with respect to her telephone after his murder would assist in the investigation of the stipulated firearm, trafficking in controlled substances, and criminal organization offences named in the warrant.

The March 25, 2019 Authorization to Intercept Private Communications

[43] On March 25, 2019 Justice J. McMahon issued the first authorization, pursuant to ss. 185 and 186 of the Criminal Code, authorizing the interception of private communications of named persons in an investigation into the following offences:

(a) Participation in a criminal organization, contrary to s.467.11 of the Criminal Code;

(b) Commission of an indictable offence for the benefit, at the direction, or in association with a criminal organization, contrary to section 467.12 of the Criminal Code;

(c) Instructing the commission of an offence for a criminal organization, contrary to section 467.13 of the Criminal Code;

(d) Any conspiracy to commit, or attempt to commit, or the offence of being an accessory after the fact, in relation to the offences set out above or any counselling, procuring or inciting with relation to the offences set out above.

[44] Girolamo Commisso and Gabriel Khoury both attack their inclusion as named persons in the first authorization. Their submissions were adopted by all other defence counsel.

[45] In particular, counsel for Giovanni Commisso, who was not named in either the first or second authorization, made submissions that Girolamo Commisso and Gabriel Khoury were improperly named in the first authorization. This issue was relevant to Giovanni Commisso in relation to, inter alia, the issuance of search warrants later in the investigation which are not being addressed in these reasons.

[46] Each of Girolamo Commisso and Gabriel Khoury claims that ITO #1 was facially deficient in failing to provide information to satisfy the statutory prerequisites to naming them in the first authorization.

[47] Girolamo Commisso submits that apart from one potentially completely innocuous interaction with a person on June 1, 2018, almost 10 months before the authorization was issued, there is an entire absence of evidence linking Girolamo Commisso to alleged members of the alleged criminal organization.

[48] Further, he asserts that there is an entire absence of evidence that he was involved in any of the alleged criminal activity of the alleged criminal organization and that there was an entire absence of evidence that he had ever discussed or was even aware of the alleged criminal activity of the alleged criminal organization. He further asserts that in fact there is an entire absence of evidence that he was involved in or aware of any criminality of any sort being committed by anyone and certainly not that he was involved in communications with anyone about it.

[49] He submits that, insofar as ITO #1 relies on evidence of a connection between Girolamo Commisso and Soheil Rafipour (who was murdered on Dec 24, 2018, 3 months before the first authorization was issued on March 25, 2019) it fails to establish any current link between any alleged gang members and Girolamo Commisso, or his involvement in, or knowledge of, their criminal activities.

[50] He submits that there is no evidence of any involvement or contact whatsoever by Girolamo Commiso with any alleged members of the Deep Waters or Chester Le gangs after the death of Soheil Rafipour.

[51] He submits that surveillance of several interactions between Girolamo Commisso and Omer Gharibzada and Soheil Rafipour and Sergei Manukian in 2018 prior to Soheil Rafipour's death, were innocuous. He submits, in any event, mere acquaintanceship with alleged gang members is insufficient to support the naming of a person in an authorization.

[52] Counsel for Girolamo Commisso Mr. Lafontaine notes that the analysis of the results of the Transmission Data Recorder warrant dated Feb. 11, 2019, found at App. I of ITO #1, shows that:

(i) in the period February 12 - 27, 2019 Ms. Ashoury made no telephone calls to any of the numerous alleged gang members named in the transmission data recorder warrant: (ITO #1, App. I, p. 20); and

(ii) Sergei Manukian was also not in contact by telephone with any of the alleged gang members named in the transmission data recorder warrant: ITO #1, App. I, p. 49.

[53] Finally, Mr. Lafontaine submits that, in relation to the telephone attributed to Girolamo Commisso, the results of the tracking data recorder warrant demonstrates that, while he received nine calls from Maral Ashoury, there were no calls from the other alleged gang members to Girolamo Commisso in the period Feb 12-27, 2019 covered by the tracking data warrant: ITO #1, App. I, p. 22.

[54] Mr. Lafontaine submits that, for Girolamo Commisso to be named in the first authorization, something beyond mere acquaintanceship with Soheil Rafipour was required. He submitted that there was no evidence of a relationship of trust between any alleged gang member and Girolamo Commisso, that would establish reasonable and probable grounds to believe that the interception of his calls may assist in the investigation of the criminal organization offences alleged in this case.

[55] He submits that there is no evidence that Girolamo Commisso was a trusted confidant of any of the alleged members of the criminal organization such that there was an objective basis to conclude that there were reasonable and probable grounds to believe that the interception of his private communications may assist the investigation into gang-related criminal activity.

[56] Mr. Lafontaine submitted that, insofar as there is evidence of a relationship between Girolamo Commisso and Ms. Ashoury, there is no evidence that she was involved in any gang-related criminal activity, or was a confidant of the alleged members of the gang such that his relationship with her provided a basis for reasonable and probable grounds to believe that the interception of his telephone conversations may assist the investigation of the criminal organizations, particularly several months after the death of Soheil Rafipour.

[57] Mr. Newman, counsel for Gabriel Khoury, adopts the submissions made on behalf of Girolamo Commisso and adds that, in his submission, ITO #1 does not disclose any articulable reason to even suspect that Gabriel Khoury was involved in any criminal activity, had any relationship with any gang members, or that the interception of his private communications would assist with the investigation of the offences listed.

[58] He claims that ITO #1 does not even offer a theory as to what he is engaged in or privy to. According to Mr. Khoury, it states it is believed that Gabriel Khoury is an "associate" of CLE/Deep Waters due to his "association" with Girolamo Commisso but it does not draw the connection between Gabriel Khoury's friendship with Girolamo Commisso or presence near any other targets of the investigation to the offences under investigation or to communications about them.

[59] In short, Gabriel Khoury claims that he was named in the interception almost entirely because of his association with Girolamo Commisso, and Girolamo Commisso was named because of his association with Gabriel Khoury "in a kind of mutually reinforcing echo chamber".

[60] Counsel for Mr. Khoury, Mr. Newman, notes that there is no confidential informant information implicating Mr. Khoury in any criminal activity or gang-related activity. He notes that there is no social media evidence connecting Mr. Khoury to any gang-related activity. He notes that the only occasion when he was seen alone with someone asserted to be a gang member in ITO #1 was in November 2015, when he and Abdul Wasi Hadi ("Mr. Hadi") were stopped while driving to Casino Rama. He submits there was no evidence that Mr. Hadi had any gang affiliation at that time or, if he did, that Mr. Khoury was aware of it.

[61] He notes that while there is evidence of Mr. Khoury in the surveillance observations of June 1, 2018 (at ITO #1, p.472) there is no evidence beyond his mere attendance briefly outside the bakery at 1 Toro Rd. There is no indication of what was said, how long the persons observed were in attendance, and the observation was made 10 months before the authorization was issued.

[62] With respect to the events of June 18, 2018, when Mr. Khoury drove Girolamo Commisso, he notes that Girolamo Commisso's driver's licence was under suspension at the time; ITO #1, p. 360)

[63] As stated in Girolamo Commisso's factum at para. 34:

"In essence, the effort to establish Girolamo Commisso's association is by evidence that he had, on occasion in the past, associated with Gabriel Khoury. Turning then to Mr. Khoury the effort to show his association with the criminal organization is largely by evidence that he had, on occasion in the past, associated with Giralomo Commisso."

The Crown's Position On Naming Girolamo Commisso and Gabriel Khoury in the First Authorization

[64] The Crown submits that there was abundant evidence in ITO #1 which demonstrated an interconnectedness of associated persons in close proximity to Soheil Rafipour, Omer Gharibzada, and Sergei Manukian that justified the naming of all persons in the group.

[65] The Crown submitted that there was ample evidence before the issuing judge such that the relationships between Maral Ashoury, Girolamo Commisso, Sergei Manukian, and Gabriel Khoury, were real, involved trust, and were related to the Deep Waters leadership such that the grounds were met to name each of them in the first authorization as persons who might be told, over-hear, state, or repeat information relating to the gang and its activities. The Crown asserts that the issuing judge was entitled to rely on these interconnected facts, considered in the context of the totality of the evidence in the ITO, to find that Girolamo Commisso and Gabriel Khoury were properly named.

The Legal Requirements for Issuing an Authorization

[66] In R. v. Mahal, 2012 ONCA 673, [2012] O.J. No. 4672 (Ont. C.A.), Watt J.A. summarizes the requirements for the issuance of an authorization to intercept private communications under section 186 of the Criminal Code. He states at paragraph 68:

"The interception of private communications constitutes a search or seizure for the purposes of s. 8 of the Charter, thus any statutory provisions that authorize these interceptions must conform to the minimum constitutional standards that s. 8 demands: R. v. Duarte, [1990] 1 S.C.R. 30. Section186(1)(a) complies with these standards. Before granting a conventional authorization, the authorizing judge must be satisfied by the supportive affidavit that there are reasonable and probable grounds to believe the following:

(i) A specified crime has been or is being committed; and

(ii) That the interception of the private communications proposed will afford evidence of the crime. Garofoli, at p. 1451 S.C.R.….."

[67] The Applicants do not suggest that the totality of the information in ITO #1 could not support the issuance of the first authorization. The focus of their submissions was on the naming of Girolamo Commisso, Gabriel Khoury, Tamim Amem and Fayaz Alakoozi in the first authorization, and Tevin DaCosta in the second authorization. Giovanni Commisso was not named in either the first or second authorizations, but submitted that Girolamo Commisso and Gabriel Khoury were improperly named.

The Legal Test for Naming in an Authorization

[68] Section 185(1)(e) of the Criminal Code defines the requirements for naming a person in an authorization to intercept private communications. It requires that the affidavit accompanying the application include:

(e) the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence…."

[69] The Supreme Court of Canada in the leading decision of R. v. Chesson, [1988] 2 S.C.R.148, summarized the test for naming a person in an authorization at p.164:

"The first and most obvious condition is that the existence of that person must be known to the police. Second, and equally important, however, is the additional requirement that the person satisfy the standard of being one 'the interception of whose private communications there are reasonable and probable grounds to believe may assist the investigation of the offence'. If at the time the police apply for a judicial authorization a person meets both these criteria, he will be a known person and therefore, if the interceptions of his communications are to be admitted against him, he must be named in the authorization as a target for interception…. A 'known' person, then, for the purposes of Part IV.1 of the Code is one who satisfies the two criteria in s.178.12(1)(e) [now s.185(1)(e).]"

[70] As Watt, J.A. has stated in R. v. Mahal, supra, at paras. 71-72:

"The threshold for describing a person as a "known" in the supportive affidavit is a modest one. Investigators need not have reasonable and probable grounds to believe that the person was involved in the commission of an offence being investigated. Provided investigators know the identity of the person and have reasonable and probable grounds to believe that the interception of that person's private communications may assist the investigation of an offence, that person is a "known" for the purpose of s.185(1)(e): Chesson, at p. 164; Schreinert [], 2002 O.J. No. 2015 (Ont. C.A.), at para. 43; R. v. Nugent (2005), 193 C.C.C.(3d) 191 (Ont. C.A.), at paras. 8 – 9

The investigative assistance component in s. 185(1)(e) does not require that investigators determine (in advance) precisely how the 'known' persons' communications may assist in the investigation. Investigative omniscience or clairvoyance is unnecessary. It is enough that investigators have identified the person, and from the available evidence, have reasonable and probable grounds to believe that interception of his or her private communications may assist in their investigation: Schreinert, at para. 45."

[71] As Code, J. has emphasized in R. v. Abdirahim, 2013 ONSC 7420, [2013] O.J. No. 6170 at para. 50:

"it is important to remember that a named target of a wiretap authorization need not be implicated in the offence under investigation, unlike at the later stage of an arrest. The target of a wiretap may even be an entirely innocent third party, provided that seizure of their communications may somehow further the investigation. See R. v. Vanweenan and Chesson, supra; R. v. Mahal, supra; R. v. Nugent, supra; R. v. Finlay and Grellette, supra at para. 84; R. v. Samson et al. (1983), 9 C.C.C.(3d) 194, at para.16 (Ont. C.A.)"

[72] Watt, J.A. stated in R. v. Mahal, supra, at para. 83:

"….s 185(1)(e) posits a nexus between the communications of 'known' persons and the offences under investigation. The section captures the nexus in its terms "may assist in the investigation of the offence". The term 'offence' refers to the offences described in the affidavit. (s.185(1)(a)), stated in the authorization (s.186(4)(a)), and defined in s.183"…

[73] As MacPherson, J.A, makes clear in R. v. Ebanks (2009), 2009 ONCA 851, 97 O.R.(3d) 721 at para. 33:

"..the test on a review of a wiretap authorization is not whether there were reasonable grounds to lay charges against the individual but rather whether there were reasonable grounds to believe that interception of his communications may assist in the investigation of the offence: See R. v. Finlay and Grellette (1985), 52 O.R. (2d) 632, ….at p. 656 O.R.; R. v. Schreinert, [2002] O.J. No. 2015….(C.A.) at para. 43"

[74] Doherty, J.A. described the task of reviewing the inclusion of a "known person" in an authorization issued in a robbery investigation as follows in R. v. Nugent, [2005] O.J. No.141 at para 9:

"The trial judge should have determined whether the information remaining in the affidavit (after excising the inaccurate information) provided a sufficient link between Nugent and the offences, or between Nugent and others involved in the offences, to provide reasonable grounds to conclude that the interception of his communications could assist in the investigation of those robberies".

[75] As Code, J. makes clear in R. v. Abdirahim, supra, at para. 33:

… "The less demanding statutory criterion for naming each 'known person' as a target of the wiretap authorization is expressly set out in section 185(1)(e), namely, whether the interception of that person's private communications 'may assist the investigation'. It has repeatedly been held that this threshold is "a low one". See R. v. Vanweenan and Chesson (1988), 43 C.C.C. (3d) 353, at 365-6; R. v. Mahal, supra, at paras. 71, 75-6,81 and 88; R. v. Nugent (2005), 193 C.C.C.(3d) 191, at paras. 8 and 9. (Ont. C.A.)"

[76] Furthermore, as Code, J. has emphasized, at paragraph 51 of R. v. Abdirahim, supra, "the standard of review in relation to this argument [the naming of known persons in the authorization] is deferential."

[77] The standard of review of the decision to name persons in an authorization is the standard articulated in R. v. Garofoli, supra. As Code, J noted in R. v. Abdirahim, supra, at para. 53:

"I am satisfied that there was a sufficient basis to name these three as 'known persons', within the meaning of section 185(1)(e), and certainly there is a basis on which Nordheimer, J 'could' conclude that they 'may assist the investigation' which is the Garofoli standard of review".

[78] The Court of Appeal summarized the Garofoli standard of review applicable when a trial judge considers an argument that the issuing judge erred in naming the person in an authorization in R. v. Hafizi, [2016] O.J. No. 6446 at para. 44:

"The test a reviewing judge is to apply is whether, in light of the record amplified on review, the ITO 'contained sufficient reliable evidence that might reasonably be believed on the basis of which the authorizing justice could have concluded that the conditions precedent required to be established had been met: R. v. Nero 2016 ONCA 160 …at para. 70."

[79] It is clear on such a review that the reviewing judge must not conduct a de novo hearing: R. v. Hafizi, [2016] O.J. No. 6446, at para. 43. (Ont. C.A.)

[80] As Watt, J.A. stated in R. v. Sadikov, 2014 ONCA 72, [2014] O.J. No. 376, at para. 88 in describing this aspect of the Garofoli standard of review:

"It is no part of the reviewing judge's mandate to determine whether she would issue the warrant on the basis of the amplified record. Nor is it the reviewing judge's role to draw inferences, or to prefer one inference over another. The inquiry begins and ends with an assessment of whether the amplified record contains reliable evidence that might reasonably be believed on the basis of which the warrant could have issued: Morelli, at para. 40."

[81] In determining whether the issuing judge could name a person in an authorization, a trial judge on review must not take a piecemeal approach to items of evidence, but must conduct a contextual analysis of the affidavit material as a whole: R. v. Hafizi, [2016] O.J. No. 6446 (Ont. C.A.), at para. 48.

[82] In R. v. Riley, [2009] O.J. No. 738 at para.122, Dambrot, J. adopted the helpful summary of the law concerning "reasonable grounds to believe" in Wiretapping and Other Electronic Surveillance at pp. 3 – 12 (March 2008). Dambrot, J. adopted the following statement from that text:

"(1) There is no fixed formula for what constitutes reasonable grounds to believe. Whether grounds exist depends on the factual circumstances extant in any case. No one fact can predominate. The sufficiency of the grounds will depend on the totality of the circumstances.

(2) The concept of reasonable grounds involves the application of common sense, as well as practical and non-technical principles. The process does not deal with hard certainties, but with probabilities. The concept is a fluid one, turning on an assessment of probabilities in particular factual contexts; it is not readily, or even usefully, reduced to a neat set of legal rules. The standard of proof is one of reasonable probability."

The Evidence in the March 19, 2019 ITO (ITO #1) Related to Girolamo Commisso

[83] The evidence in ITO #1 concerning Girolamo Commisso was that he was in a sexual relationship with Maral Ashoury, who was living with Soheil Rafipour, and who was with him when he was shot and killed on December 24, 2018. It is significant that Ms. Ashoury's first call after the murder of Soheil Rafipour was to Girolamo Commisso, even before she called 911: ITO #1, p. 359, para. 816.

[84] Appendix G to ITO #1 discloses that, in an interview of January 4, 2019 in relation to the murder of Soheil Rafipour, Maral Ashoury told the police that she met Soheil Rafipour in the winter of 2018 through Girolamo Commisso (ITO #1, App. G, p. 277) This is information from which the issuing judge could reasonably infer that Girolamo Commisso was connected to Soheil Rafipour.

[85] Ms. Ashoury was in a sexual relationship with Girolamo Commisso for almost 18 months prior to the murder of Soheil Rafipour on Dec. 24, 2018: ITO #1, App. G, p. 277. The continued interaction between Ms. Ashoury and Girolamo Commisso was confirmed by the results of the TDR warrant which showed 9 calls from Ms. Ashoury to Girolamo Commisso's telephone in the period Feb. 17 to 23, 2019, about I month before the authorization was issued: ITO #1, App. I, p. 22.

[86] Essential to the basis for naming Girolamo Commisso in the authorization was the strength of the information in the ITO that Soheil Rafipour was a member of the Deep Waters/Chester Le gangs, and that he had been involved in numerous criminal organization offences.

[87] The strength of the evidence concerning Soheil Rafipour's criminal activity, in combination with the fact that Maral Ashoury lived with Soheil Rafipour, and was present at the time of his murder, was introduced to Soheil Rafipour by Girolamo Commisso, and was in a relationship with Girolamo Commisso, was all evidence available to the issuing judge in determining whether there were reasonable and probable grounds to believe that the interception of Girolamo Commisso's private communications may assist the investigation of the criminal organization offences named in the authorization.

[88] Furthermore, the surveillance evidence of Girolamo Commisso meeting with Soheil Rafipour and Omer Gharibzada, was all probative evidence that could contribute to reasonable and probable grounds to believe that the interception of Girolamo Commisso's private communications may assist in the investigation of the stipulated offences.

[89] The strong probative evidence of Soheil Rafipour's involvement in gang-related criminal activity in ITO #1 included the following:

(i) C.S.#3 says that Cadi [Soheil Rafipour] was a "Deep Waters guy" (ITO #1, App. G, p. 55);

(ii) C.S.#3 advises that Soheil Rafipour and Deep Waters guys are "involved with getting guns and drugs through the border (ITO #1, App. G. p. 56) and Soheil Rafipour and Omer Gharibzada are involved in frauds, drugs and gun supplying, supplying guns and cocaine to Chester Le guys" (ITO #1, App. G, p. 57)

(iii) C.S. #4 advises there are photos on "24kcadii", identified as an open source Instagram account of Soheil Rafipour, of a man, the affiant identifies as Soheil Rafipour, holding large guns (ITO #1, App. G, pp. 79-80), and C.S. #4 identifies Soheil Rafipour as a member of the Deep Waters gang (ITO #1, App. G, p. 81).

(iv) C.S. #4 advises Soheil Rafipour is trying to import guns and cocaine and heroin into Canada. Soheil Rafipour's open source Instagram account has a photo of a black chrome handgun included in ITO #1, App. G, p. 82

[90] Another photo on Soheil Rafipour's open source Instagram account shows Soheil Rafipour's hat with a gun, and there is an Instagram video of Soheil Rafipour holding a gun and removing a magazine from it. Another photo shows Soheil Rafipour holding a loaded handgun, and a posted photo with a firearm indicating "shoot so much guns I'm getting high off the gunpowder# Deep Waters" Another photo on the 24kcadii Instagram account of Soheil Rafipour is of 2 handguns. (ITO #1, App. G, pp. 82-88).

[91] This is compelling evidence in an open source Instagram account of Soheil Rafipour's involvement in criminal activity, including the possession of firearms.

[92] C.S. #5 advises that Soheil Rafipour said that they are all about making money selling drugs and guns to everyone (ITO #1, App. G, p.150).

[93] C.S. #5 advises that the Chester Le gang is getting guns through the Deep Waters guys (ITO #1, App. G, p. 143)

[94] C.S. #6 advises that Soheil Rafipour is "the main guy for the Deep Waters guys", along with others including Omer Gharibzada, and that Chester Le guys have been committing robberies and shootings all over the city and have made enemies" (ITO #1, App. G, p.162, 171)

[95] These various sources of confidential source information from 4 sources, supported by social media posts, are mutually corroborative: R. v. Abdirahinm, supra, at paras. 62-63.

[96] Furthermore, there was some information before the issuing judge of an ongoing direct relationship between Girolamo Commisso and Soheil Rafipour.

[97] At ITO #1, p.360, para. 822 it was noted that Girolamo Commisso attended Soheil Rafipour's funeral on December 27, 2018.

[98] On July 18, 2018 Soheil Rafipour was observed meeting at Kennedy Commons with Sergei Manukian, Girolamo Commisso, and Gabriel Khoury: ITO #1, p. 361, para. 822.

[99] On June 1, 2018 police officers conducting surveillance saw Soheil Rafipour attend the Nino D'Aversa bakery at 1 Toro Rd. and after some time meet briefly with several other unidentified persons and with Girolamo Commisso, Omer Gharibzada, Gabriel Khoury, and Sergei Manukian: ITO #1, p. 361, para. 822(l). The surveillance is confirmed in ITO #1, App. G, at pp. 272-273,and in the photographs at ITO #1 App. F, p. 271-272.

[100] CS #11 indicated in the summer of 2018 that "a male known to him as CADDY (Soheil Rafipour) is a close associate of Girolamo Commisso.": Respondent's Application Record, Tab 12, "Changes to Vetting in App. G", p. 272, para. (a).

[101] The surveillance of Girolamo Commisso meeting with Soheil Rafipour on June 1, 2018 and July 18, 2018 was some corroboration of this information.

[102] Counsel for Girolamo Commisso and Giovanni Commisso argue that there is insufficient information in the redacted ITO to establish that CS #11 meets the Debot criteria of information that was compelling, credible, and corroborated.

[103] Counsel submit that, as App. H to the ITO, which contains information concerning any criminal records of all confidential sources is totally redacted it is impossible to conduct the required Debot analysis of the reliability of CS #11.

[104] On behalf of Girolamo Commisso, Mr. Lafontaine submits that in para. 303 of ITO #1 App. G it is impossible to infer reliability from the redacted information that CS #11's information led to seizures of controlled substances, ammunition and firearms on 2 occasions without knowing the number of times CS #11 provided information. He notes that at para. 306 of ITO #1, App. G it is noted that CS #11 provided identification information contradicted by other information received.

[105] At paras. 312-314 of ITO #1, App. G the affiant refers to 3 instances in which CS #11 provided information which was acted upon, resulting in the seizure of firearms, ammunition, and drugs, resulting in charges being laid in 2 of the matters.

[106] The affiant deposes at para. 311 of ITO #1, App. G:

"CS #11 has proven reliable on many previous occasions and the information provided to peace officers has proven to be fruitful".

[107] ITO #1, App. G contains other information received from CS #11 on alleged Deep Waters gang members including Omer Gharibzada, and Soheil Rafipour who are shown in ITO #1 from other evidence to be heavily involved in gang-related criminal activity. See for example ITO #1, pp.421-434 re Omer Gharibzada. This may be considered as providing support for the reliability of CS #11.

[108] Based on all of the evidence in ITO #1, including the surveillance evidence of interactions between Girolamo Commisso and Soheil Rafipour, and the information at ITO, App. G, p. 277 from Maral Ashoury, that she had met Soheil Rafipour in the winter of 2018 through Girolamo Commisso, it was open to the issuing judge to regard CS #11's assertion that Soheil Rafipour was a "close associate" of Girolamo Commisso as receiving some support from the other evidence in ITO #1.

[109] The fact that Girolamo Commisso met with Soheil Rafipour and others suspected to be involved in the Chester Le/Deep Waters gang activity provided further support that there were reasonable and probable grounds to believe that the interception of the private communications of Girolamo Commisso may assist the investigation of the stipulated offences.

[110] In my opinion, the fact that there is no evidence of the content of these meetings does not render this evidence as innocuous as the Applicants submit, when considered in the context of the totality of the evidence in the ITO.

[111] While there is no direct evidence of involvement of Girolamo Commisso in any of the activities of the Deep Waters gang, what is striking is the evidence of his ongoing involvement with one its leaders, Soheil Rafipour, by introducing Maral Ashoury to him in the winter of 2018, being involved in an ongoing relationship with her (while she was living with Soheil Rafipour), while at the same time interacting, as shown in the surveillance, with the 2 main leaders of Deep Waters (Soheil Rafipour and Omer Gharibzada), in the brief meeting on June 1, 2018, and with Soheil Rafipour on July 18, 2018. (ITO #1, App. F, p. 268).

[112] There was evidence in the ITO that Omer Gharibzada was a major figure in the Deep Waters gang, along with Soheil Rafipour.

[113] CS #6 advised that Soheil Rafipour is the "main guy for the Deep Waters guys" with others including Omer Gharibzada: ITO #1, p. 422, para. 979.

[114] CS #3 advised that both Soheil Rafipour and Omer Gharibzada were involved in frauds, drugs and gun supplying: ITO #1, p. 422, para. 974.

[115] The ITO contained references to a YouTube posting by Omer Gharibzada on March 23, 2018, prior to his meeting involving Girolamo Commisso, which were reasonably interpreted to involve an acknowledgement by Omer Gharibzada of his involvement in committing robberies, drive-by shootings, and human trafficking.: ITO #1, pp. 425-426.

[116] CS #9 advised that Omer Gharibzada is associated with two other gangs in the Scarborough area, Deep Waters and 3M/ Chester Le: ITO #1, p. 423, para. 985.

[117] In my opinion, the strength of the evidence of serious gang-related criminal conduct by Soheil Rafipour and Omer Gharibzada, based on compelling information in ITO #1 to be 2 leaders of Deep Waters, makes the fact that Girolamo Commisso was shown to be interacting with both, and maintaining an ongoing relationship with the girlfriend of one of the leaders, Soheil Rafipour, significant evidence available for the determination of the probable cause analysis engaged in by the issuing judge.

[118] The assessment of the grounds for the interception of the private communications of Girolamo Commisso (and Gabriel Khoury discussed below) must consider the totality of the evidence before the issuing judge.

[119] The evidence in App. G showed that at least 6 confidential sources identified Soheil Rafipour as involved in the Deep Waters gang or its criminal activity: CS #3, App. G, pp. 55-57; CS #4 at App. G, p.81; CS #5, at App. G, p. 150; CS #6, at App. G, p. 171; CS #10 at App. G, p. 239; CS #11, at App. G, p. 272.

[120] Similarly, at least 4 confidential sources identified Omer Gharibzada as involved in Deep Waters, or its criminal activity: CS #3, at App. G, pp. 57, 70; CS #6, App. G, p.171; CS #9, at App. G, p. 206-207; CS #11, at App. G, p. 274.

[121] This was evidence the issuing judge could consider on the extent to which it may have been known in the community at the time of Girolamo Commisso's, and Gabriel Khoury's interaction with Soheil Rafipour and Omer Gharibzada that they were involved in gang-related criminal activity.

[122] Furthermore, there was evidence before the issuing judge that both Soheil Rafipour and Omer Gharibzada openly broadcast their gang-related criminal activity in social media: CS #4, App. G, pp. 79-81, 82-88, 91,103, ITO #1, pp. 425-427.

[123] With respect to Soheil Rafipour there was important evidence from an open source Instagram account in which Soheil Rafipour was shown with guns, removing a magazine from a gun, and stating on an open source Instagram account "shoot so much guns I'm getting high off the gun powder": ITO #1, App. G, pp. 79-87.

[124] Of particular relevance is the Omer Gharibzada You Tube uploaded March 23, 2018 entitled "Spikez x GunsIReady Set Go" in which he broadcast his involvement in robberies, human trafficking, and drive-by shootings: ITO #1, pp. 425-427. An available inference from this is that Omer Gharibzada was open about his involvement in gang-related criminal activity.

[125] This evidence of social media and You Tube acknowledgements of criminal activity by Soheil Rafipour and Omer Gharibzada was available for the judge to consider on the probability that Girolamo Commisso (and Gabriel Khoury) may have received information relevant to the investigation, in their interaction with Soheil Rafipour and Omer Gharibzada, that may be referred to or repeated in their private communications.

[126] Surveillance established that the July 18, 2018 meeting involving Soheil Rafipour included Girolamo Commisso, Gabriel Khoury, and Sergei Manukian: ITO #1, p. 361, para. 822.

[127] Sergei Manukian was associated with Soheil Rafipour as they were both directors of Notorious Records Inc: ITO #1, p. 495, para.1138.

[128] On October 1, 2018 Sergei Manukian and Soheil Rafipour were driving in Manukian's car and an unknown person discharged a firearm in Manukian's direction from a car travelling in the opposite direction on Finch Ave. in Toronto. There were no injuries in this attack: ITO #1, p. 494, para.1136.

[129] Approximately one month later on October 31, 2018 Sergei Manukian was again subject to a firearm attack in which an unidentified male in a car discharged 21 bullets at the Jeep in which Manukian was driving. Manukian pursued the driver of the car, attacked him, and was charged with attempted murder: ITO #1, pp 493 - 494, para. 1136.

[130] Given Manukian's association with Soheil Rafipour, it was open to the issuing judge to consider this information as significant, in the context of the abundant evidence of shootings between rival gangs contained in ITO #1.

[131] The surveillance evidence established contact between Girolamo Commisso, Gabriel Khoury, and Sergei Manukian in the brief parking-lot meeting on June 1, 2018 which included the 2 leaders of Deep Waters Soheil Rafipour and Omer Gharibzada: ITO #1, p. 494, para. 1136.

[132] On July 18, 2018 Soheil Rafipour met at Kennedy Commons with Sergei Manukian, Girolamo Commisso, and Gabriel Khoury: ITO #1, App. F, pp. 150-151; ITO #1, p. 494, para. 1136.

[133] The totality of the information in the ITO concerning Omer Gharibzada and his senior position in Deep Waters, and Sergei Manukian who had apparently been subject to 2 attempts on his life, along with the evidence of Girolamo Commisso's involvement with Soheil Rafipour, shown to be a major figure in Deep Waters, all contribute to the evidentiary basis for naming Girolamo Commisso in the first authorization.

[134] Given the totality of this information, I do not accept the Applicant's submission that the basis for naming Girolamo Commisso in an authorization ended with the death of Soheil Rafipour.

[135] The threshold for naming in an authorization is a low one: R. v. Abdirahim, supra, at para. 50; R. v. Schreinert, [2002] O.J. No. 2015, at para. 43.

[136] The standard of review of the issuing judge's decision to name is a deferential one, applying the Garofoli standard of review: R. v. Abdirahim, supra, at para. 51.

[137] As the Court of Appeal has affirmed in R. v. Nero, 2016 ONCA 160, at para. 69:

"The review is not a rehearing or a de novo hearing of the original application. Nor does it involve the reviewing judge substituting his or her views, or discretion, for those of the issuing judge"

[138] Considered in its totality, there was sufficient reliable evidence in ITO #1 that might reasonably be believed that the issuing judge could conclude that there were reasonable and probable grounds to believe that the interception of the private communications of Girolamo Commisso may assist the investigation of the criminal organization offences named in the authorization issued March 25, 2019. Accordingly, the application of Girolamo Commisso is dismissed.

The Naming of Gabriel Khoury in the March 25, 2019 Authorization

[139] The Crown relies on the evidence that supports the naming of Girolamo Commisso as supportive of the naming of Gabriel Khoury. In its written submission at pp. 171-172 the Crown submits:

"…. The naming of Mr. [Girolamo] Commisso and Mr. Khoury in the first authorization is premised on their proximity to Deep Waters…. Deep Waters was reasonably understood to be a dominant, large, and comprehensive organization earning substantial money from crime. The gang had multiple arms of operations and revenue, and the proximity of [Girolamo] Commisso, Khoury, and Manukian to this gang led to a reasonable inference that they may assist, at a minimum, in identifying other persons that were also involved or proximate to serious gang activity"

[140] The evidence of Girolamo Commisso's interactions with Soheil Rafipour, and Maral Ashoury is important context for considering the basis for naming Gabriel Khoury.

[141] The particular information in the ITO, which may be considered as supportive of the naming of Mr. Khoury, in particular, includes the following:

[142] Gabriel Khoury was observed by police surveillance teams to be associating on June 1, 2018 with Soheil Rafipour, Omer Gharibzada, Sergei Manukian, and Girolamo Commisso.: ITO #1, p. 472. In short, just as was the case with Girolamo Commisso, Mr. Khoury is seen associating with persons the issuing judge could reasonably conclude were the 2 leaders of Deep Waters.

[143] Similarly, on July 18, 2018 investigators observed Soheil Rafipour, Sergei Manukian, Girolamo Commisso and Gabriel Khoury meeting at Kennedy Commons. This may be reasonably regarded as further evidence of the association of Gabriel Khoury with Girolamo Commisso, and with Soheil Rafipour, who was clearly shown in ITO #1 to have engaged in criminal organization activity. (ITO #1, App. F, p. 268).

[144] Furthermore, on June 18, 2018 Gabriel Khoury was observed picking up Girolamo Commisso and driving him to several locations. ITO #1, p. 472, ITO #1, App. F, p. 270)

[145] On March 4, 2018, Mr. Khoury was stopped by the police, and was found to be driving a car registered to Girolamo Commisso's mother, with the same licence plate as the car which, on numerous prior occasions, police had found being driven by Girolamo Commisso: ITO #1, pp. 472-473. This is some evidence of an ongoing friendship or relationship between Girolamo Commisso and Gabriel Khoury.

[146] In his oral submissions on behalf of Mr. Khoury Mr. Newman submitted, in addition to what has been noted above, that the statement of the affiant in ITO #1, p. 471, para. 1080, that "surveillance reports indicate that Gabriel Khoury is driving Girolamo Commisso to and from places" is an inaccurate exaggeration, having regard to the fact that there was only one instance of Mr. Khoury driving Girolamo Commisso, and that occurred on June 18, 2018 at a time when it was clear from ITO #1 that Girolamo Commisso's driver's licence was under suspension.

[147] Counsel for Mr. Khoury notes that ITO #1 is less than frank and fair in noting the fact of Girolamo Commisso's licence suspension at ITO #1, p. 360, but failing to refer to it in the context of Mr. Khoury being said to have driven Girolamo Commisso to a meeting on June 18, 2018 at p. 472 of ITO #1.

[148] I accept the submission that the statement in ITO #1 at paragraph 1080 that "surveillance reports indicate that Gabriel Khoury is driving Girolamo Commisso to and from places" is erroneous, in suggesting multiple occasions when Mr. Khoury was driving Mr. Commisso, and must be excluded from the ITO for the purpose of this review: R. v. Sadikov, supra, at para. 85 (Ont. C.A.)

[149] Counsel for Mr. Khoury submits that the reference in ITO #1 at p. 473, paragraph 1083(k) concerning a November 19, 2015 occasion when the police identified Mr. Khoury driving to Casino Rama with Abdul Wasi Hadi ('Mr. Hadi') as adding virtually nothing to a claim of reasonable and probable grounds to believe that the interception of Mr. Khoury's private communications may assist in the investigation.

[150] Information in the ITO related to Mr. Hadi is at ITO #1 pp.440-445. CS #11 advises that Mr. Hadi is involved in trafficking cocaine: ITO #1, p.441. He advises that Mr. Hadi cuts and sells cocaine to members of lower level street gangs at the kilo level: ITO #1, p.441, para. 1029. Mr. Hadi has numerous adult criminal convictions between 2008 and 2013: ITO #1,pp.441-442.

[151] In surveillance observations of September 24, 2018, police observed Mr. Hadi at the Queen's head pub interacting with Omer Gharibzada, and others: ITO #1, p. 443.

[152] Counsel for Mr. Khoury submits that the information concerning Mr. Hadi contributes nothing to a claim of reasonable and probable grounds to intercept Mr. Khoury's private communications, as there was no current information in March 2019 linking Mr. Khoury to Mr. Hadi, and the November 2015 vehicle stop is so dated as to be worthless.

[153] In my view, the historical association with Mr. Hadi is of little weight in the analysis, as it is dated. However, it is some evidence of context for the more current evidence of Mr. Khoury's interactions with prominent Deep Waters leaders such as Omer Gharibzada and Soheil Rafipour.

[154] In considering the naming of Mr. Khoury, the fundamental issue is whether there is any reliable evidence sufficient to conclude that it was open to the issuing judge to conclude that there were reasonable and probable grounds to believe that the interception of his private communications may assist the investigation in some way.

[155] As Watt, J.A. confirmed in R. v Mahal, supra, the threshold for naming does not require that investigators determine in advance precisely how the known person's communications may assist in the investigation. As he states "investigative omniscience or clairvoyance is unnecessary": R. v. Mahal, supra, at para. 72.

[156] On the deferential standard applicable to this review, the sole issue to determine is whether, after excluding the erroneous statement at para. 1080 of ITO #1, ITO #1 contained sufficient reliable evidence that might reasonably be believed, on the basis of which the authorizing judge could have concluded that there were reasonable and probable grounds to believe that the interception of the private communications of Mr. Khoury may assist in the investigation of the offences stipulated in the authorization: R. v. Hafizi, supra, at para. 44 (Ont. C.A.)

[157] In short, if there is any basis in the ITO, with the erroneous statement excluded, for Mr. Khoury to be named, I must not interfere.; R. v. Araujo, supra, at para. 51

[158] On this deferential standard, I have concluded there is no basis to interfere with the issuing judge's naming of Gabriel Khoury.

[159] As noted above, there was evidence that several confidential sources were aware of Soheil Rafipour's and Omer Gharibzada's involvement in Deep Waters and its criminal activity. There was evidence before the issuing judge that each of Soheil Rafipour and Omer Gharibzada used social media to broadcast their criminal activity. This was evidence that could support an inference that information on Soheil Rafipour's and Omer Gharibzada's criminal activity may have been available to Girolamo Commisso and Gabriel Khoury.

[160] Considered in the context of the totality of the information in ITO #1, the observed interactions of Gabriel Khoury with Soheil Rafipour, Omer Gharibzada, Sergei Manukian, and his ongoing interactions with Girolamo Commisso, are some basis for the issuing judge to conclude that there were reasonable and probable grounds to conclude that the interception of Mr. Khoury's private communications may assist the investigation of the offences named in the first authorization.

[161] As the Supreme Court has summarized in R. v. Vu, [2013] 3 S.C.R.57, in describing the Garofoli standard of review:

"The question for the reviewing judge is "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": R. v. Araujo, 2000 SCC 65 …at para. 54 (emphasis deleted); R. v. Morelli, 2010 SCC 8, at para. 40.

[162] Applying this deferential standard of review, there is no basis to interfere with the issuing judge's decision to name Mr. Khoury in the first authorization and his application is dismissed.

The Naming of Tamim Amem in the First Authorization

[163] In his written submission, Mr. Amem challenges the fact that he was named in the first authorization issued March 25, 2019.

[164] Mr. Amem submits that the information before the issuing judge was insufficient to meet the statutory test for including him as a known person in the first authorization for the interception of private communications.

[165] In essence, he submits that there was insufficient evidence before the issuing judge to connect Mr. Amem to any criminal activity, such that there were no reasonable and probable grounds to believe that the interception of his communications may assist the investigation of the offences specified in the authorization.

[166] He submits that the fact that, nine years previously, Mr. Amem was convicted of robbery and forcible confinement, as a result of a robbery committed with, inter alia, Omer Gharibzada, amounted to no evidence of his involvement with the Deep Waters gang. He further submits that his appearance in several Instagram photos and one You Tube video was insufficient to support the issuance of the authorization naming him.

[167] He argues that the opinion evidence of Detective Constable Hammond found in a report at App. B to ITO #1 is subject to the same admissibility requirements as an expert opinion offered at trial, and submits that the opinion evidence of Detective Constable Hammond could not properly be considered by the issuing justice in determining whether Mr. Amem should be named in the authorization.

[168] Mr. Amem submits that, in short, the totality of the information is not demonstrative of any criminal behaviour, and that "mere proximity" to a known individual who forms the basis of an investigation does not sufficiently support the inference that intercepting that person's communication would be of any assistance in the investigation.

[169] In my opinion, the evidence before the issuing judge, including the opinion evidence of Detective Constable Hammond, considered in its totality, was sufficient that the issuing judge could reasonably conclude that there were reasonable and probable grounds to believe that the interception of the private communications of Mr. Amem may assist in the investigation of the offences specified in the authorization.

[170] I reject the submission of Mr. Amem that the opinion of Detective Constable Hammond was required to meet the standards of admissibility of an expert opinion at trial summarized by the Supreme Court of Canada in White, Burgess, Langille, Inman v Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182.

[171] In R. v. Prosser, 2016 ONCA 467, [2016] O.J. No. 3139, the Ontario Court of Appeal specifically held that the judge issuing a search warrant was entitled to rely upon the opinion of the author of the ITO about the practices of drug dealers in connection with the storage of drugs, firearms and assorted paraphernalia as the contents of the ITO do not need to be compliant with the rules of evidence applicable at trial.

[172] The Court stated at paragraphs 18-19 of R. v. Prosser:

"Fourth, the issuing justice and reviewing judge were both entitled to rely upon the opinion of the author of the ITO about the practices of drug dealers in connection with the storage of drugs, firearms and assorted paraphernalia. That these opinions, if proffered at trial, would fall foul of the prohibition against anecdotal evidence adumbrated in R. v. Sekhon 2014 SCC 15, at para. 50, is beside the point. The contents of an ITO need not be compliant with the rules of evidence applicable at trial. After all, neither issuance of a search warrant nor a Garofoli review hearing is intended to test the merits of any of the Crown's allegations in respect of the offence. That is done at trial: R. v. Pires; R. v. Lising 2005 SCC 66, at para. 30 ….."

The opinion was an item of evidence relevant to the affiant's subjective belief and was also relevant to the reasonableness of that belief. It was open to the reviewing judge to take it into account in deciding whether the search warrant could have issued on the material before the issuing justice"

[173] In my opinion, considering the totality of the material in the ITO, there was abundant material upon which the issuing judge could conclude that there were reasonable and probable grounds to believe that the interception of the private communications of Mr. Amem may assist in the investigation of the offences.

[174] Mr. Amem appears in the YouTube video called Spikez x Guns-Ready Set Go. It was published to YouTube on March 23, 2018 (ITO #1, p. 334). The others featured in the YouTube include Omer Gharibzada, Clayton Robichaud, and Shadab Nabizada who, the information before the issuing judge indicated, were all members of the Deep Waters gang or associated to members of Deep Waters, and were involved in gang-related criminal activity (Omer Gharibzada: ITO #1, pp. 421-430; Shadab Nabizada, ITO #1, pp. 530-543; Clayton Robichaud: ITO #1, pp. 557-567).

[175] Omer Gharibzada is the owner of Bully's Towing and the social media summarized in ITO #1 indicates that he is involved in robberies, shootings, and human trafficking. (ITO #1, p. 421, para. 972.)

[176] CS #3 advised that Omer Gharibzada was involved in frauds, drugs, and gun supplying and that he made a lot of money in association with Deep Waters members. (ITO #1, p. 422, paras. 974, 975)

[177] CS #3 advised that Omer Gharibzada was associated with Soheil Rafipour and used videos to show that he was a supplier of guns and drugs. (ITO #1, p. 422, para. 978).

[178] CS #04 advised that Omer Gharibzada is "one of the Deep Waters guys": (ITO #1, p. 423, para. 988).

[179] On June 1, 2018 Omer Gharibzada was observed meeting with Soheil Rafipour, Girolamo Commisso, Gabriel Khoury, and Sergei Manukian. (ITO #1, p. 424-425, para. 994(k).

[180] In the March 23, 2018 video in which Tamim Amem appeared with, inter alia, Omer Gharibzada, Gharibzada acknowledges that he had committed masked robberies, and was involved in drive-by shootings and human trafficking. (ITO #1, p. 426-427, para. 995).

[181] The lyrics of the song in the video, as interpreted by DC Hammond, involve statements by Omer Gharibzada suggesting his involvement in robberies, pimping, and making money from human trafficking.: ITO #1, pp. 426-427.

[182] The video in which Mr. Amem appears with others, who the information in the ITO suggests are associated with the Deep Waters gang, is significant information supportive of naming him in the authorization.

[183] The issuing judge was entitled to rely upon the opinion of DC Hammond that music videos are commonly used by gangs in Toronto to convey a variety of messages to a broad audience to intimidate opponents, and broadcast their success, and that a gang would not typically allow a person to feature in the video who is not a trusted associate of members of the gang (ITO #1, App. B, at pp. 8, 10, 21).

[184] Mr. Amem was convicted of robbery and forcible confinement in relation to an occurrence of January 24, 2011 along with Omer Gharibzada, featured in the above video, providing a historical connection between Mr. Amem and criminal activity involving Mr. Gharibzada (ITO #1, p. 331, para. 767(d).)

[185] In addition, Mr. Amem appears in several different Instagram uploads in 2017-2018 belonging to Samam Rafipour and Shadab Nabizada, both of whom the evidence in ITO #1 suggested were members of the Deep Waters gang.

[186] The first photo was posted on March 12, 2017 on the account of Shadab Nabizada: ITO #1, p.429. CS #03 advised that Shadab Nabizada is a "Deep Waters guy": ITO #1, p. 531, para.1209.

[187] CS #06 advised that Shadab Nabizada was one of the main guys in Deep Waters along with Soheil Rafipour, Omer Gharibzada, Graham D'Souza, and Saman Rafipour. (ITO #1, p. 530, para. 108).

[188] Others alleged to be associated with the Deep Waters gang are included in the posting. A hashtag associated with the video refers to two gangs, Success is Near and Deep Waters. Mr. Amem is seen posing in the photo with a Deep Waters hand sign, in which he forms the letters D and W simultaneously with his fingers (ITO #1, p. 429 para. 999).

[189] DC Hammond provides an opinion that gangs frequently convey messages and communicate using non-verbal signs, including hand signs to display their gang affiliation. (ITO #1, App. B, p. 37) This was information on which the issuing judge was entitled to rely.

[190] Similar photos were posted on March 11, 2018 (ITO #1, p. 598), June 7, 2018, (ITO #1, App. D, p. 330) and December 14, 2018 (ITO #1, App. D, p. 337).

[191] A common feature of each of these photos is the inclusion, along with Mr. Amem, of numerous individuals shown in the authorization to be involved in drug trafficking, the majority of whom were shown in the ITO to be associated to Deep Waters.

[192] Saman Rafipour is the brother of Soheil Rafipour, who the ITO indicates was "the leader of Deep Waters before he was shot and killed on December 24, 2018 (ITO #1, p. 250, para. 629). Just after Soheil Rafipour's death, Saman Rafipour stated on Instagram "the machine doesn't stop working once the engineer passes. I'm still here." (ITO #1, p. 250, para. 629).

[193] CS #06 identified Saman Rafipour as one of the Deep Waters guys. (ITO #1, p. 251, para. 634).

[194] In a post uploaded on March 3, 2018, Saman Rafipour is seen displaying a hand gesture that is believed to be representative of the Deep Waters gang in a photograph with Graham D'Souza and Soheil Rafipour.(ITO #1, App. D, p. 329).

[195] Based on confidential source information, and his You tube presentation, Graham D'Souza is believed to be a high ranking member of Deep Waters involved in drugs and firearms trafficking (ITO #1, pp. 226-236.)

[196] In the March 11, 2018 Instagram post Tamim Amem is seen with Omer Gharibzada, Shadab Nabizada, Clayton Robichaud and others associated with Deep Waters. (ITO #1, p. 598).

[197] In the photograph posted June 7, 2018, Tamim Amem is seen with, inter alia, Saman Rafipour. (ITO #1, App. D, p. 330).

[198] In the photograph posted December 14, 2018, Tamim Amem is seen with, inter alia, Shadab Nabizada and Saman Rafipour (ITO #1, App. D, pp. 337- 338).

[199] In addition, information obtained pursuant to the transmission data recorder issued February 11, 2019 showed that Mr. Amem was in contact with others identified as Deep Waters associates including Shadab Nabizada on 20 occasions between Feb. 15 and 21, 2019 and Omer Gharibzada on 120 occasions between February 12, 2019 and February 27, 2019: ITO #1, App. I, p. 29.

[200] Is clear from the authorities previously cited, that it was not necessary for the issuing judge to have reasonable and probable grounds to believe that Mr. Amem himself was committing an offence, but simply that there were reasonable and probable grounds to believe that the interception of his communications may assist in the investigation of the named offences being investigated.

[201] Based on the abundant evidence of Mr. Amem's ongoing association with others shown to be involved in Deep Waters and its criminal activities, there was a basis for concluding that the interception of his private communications may assist in the investigation of the named offences.

[202] In my opinion, based on the material in the ITO the justice could reasonably conclude that there were reasonable and probable grounds to believe that the interception of the private communications of Mr. Amem may assist in the investigation of the offences, and accordingly it was open to the issuing judge to conclude that he should be a named person in the authorization.

[203] Accordingly, Mr. Amem's application is dismissed.

Fayaz Alakoozi's Challenge to Being Named in the March 25, 2019 Authorization

[204] The Applicant Fayaz Alakoozi (Mr. Alakoozi) challenges his inclusion as a named target in the first authorization.

[205] He submits at paragraphs 26 and 27 of his written argument that,

"…the ITO discloses the affiant's unsupported, subjective belief of the Applicant's involvement in the Deep Waters group, which is alleged by the affiant to be a criminal organization….Viewed in its totality, there were insufficient grounds to order the interception of the Applicant's private communications. The ITO fails to establish any meaningful connection between the Applicant and any criminal offences, such that there is even a suspicion that interceptions may assist the investigation into the enumerated offences".

[206] In response, the Crown submits at paragraph 298 of its written argument, that it does not intend to rely upon the intercepted communications of Mr. Alakoozi obtained from telephone number 647-544-6339 in this trial. The Crown notes that it does intend to tender intercepted communications at a different trial obtained pursuant to the second authorization on telephone number 647-549-2520. The Crown notes that Mr. Alakoozi is not challenging the second authorization in this application. In essence, the Crown submits that it will not rely on any evidence obtained from the first authorization in its case against Mr. Alakoozi, so that the application has no relevance to the conduct of this trial.

[207] While there may be great merit in the Crown's submission, in the event that evidence obtained in the first authorization ever materializes in the case against Mr. Alakoozi, out of an abundance of caution, I will address the merits of his application.

The Argument to Redact References to Mr. Alakoozi in paras. 770, 954, and 1662 of ITO #1

[208] Mr. Alakoozi submits that ITO #1 identifying him in social media postings associated with a criminal organization were factually incorrect. As a result, he asserts that his name in paragraphs 770, 954, and 1662 should be struck out on review because they are factually inaccurate in identifying him as included in these social media postings.

[209] Mr. Alakoozi led no evidence to prove that the identifications referred to were incorrect, and I do not read the Crown's factum as conceding that they were incorrect. In short, there is no evidence to contradict the claims in ITO #1 that Mr. Alakoozi was in the social media postings as claimed in the ITO.

[210] Furthermore, Mr. Alakoozi did not seek to cross-examine the affiant to suggest that she knew or should have known of these alleged inaccuracies. He does not submit that the affiant knew or should have known of this alleged inaccuracy.

[211] The Supreme Court of Canada in World Bank Group v. Wallace, 2016 SCC 15 has stated at paras.122,124:

"… an error or omission is not relevant on a Garofoli application if the affiant could not reasonably have known of it…. Testing the affidavit against the ultimate truth rather than the affiant's reasonable belief would turn a Garofoli hearing into a trial of every allegation in the affidavit, something this Court has long sought to prevent (Pires, at para. 30; see also R. v. Ebanks 2009 ONCA 851 ….at para. 21)"

"… The fact that the documents may show errors or omissions in the affidavit will not be sufficient to undermine the authorization. They must also support an inference that the affiant knew or ought to have known of the errors or omissions."

[212] In its recent decision in R. v. Phan, 2020 ONCA 298, Strathy, C.J.O. summarized the test on a Garofoli application for excising material from an ITO, as follows at paras. 51-52":

"As the determination of whether the statutory conditions have been met focuses on the affiant's reasonable belief, the Garofoli analysis does not determine whether the allegations in support of the authorization were ultimately true. It determines whether the affiant had a "reasonable belief in the existence of the requisite statutory grounds"; Pires Lising, at para.41. And this turns on what the affiant knew or ought to have known at the time the affidavit in support of the authorization was sworn. The parties agree that the applicable test is set out in World Bank at paras. 122-3…Typically, evidence that the affiant knew or ought to have known was false, inaccurate, or misleading will be "excised" from the ITO when determining whether it was lawfully issued. If there is additional evidence that the affiant knew or ought to have known was required for full and frank disclosure, it should be added back: World Bank, at para.121; Booth [2019 ONCA 970], at para. 59."

[213] Mr. Alakoozi has led no evidence of the inaccuracy of the assertion that he appears in the social media postings identified in the ITO. Contrary to his submission, I do not take the Crown's argument to concede the alleged inaccuracy.

[214] More fundamentally, there is no evidence that, if the assertion that he appears in the social media postings was inaccurate, the affiant knew or should have known of the inaccuracy, so the paragraphs will not be struck from the ITO subject to review.

The Argument that there is Insufficient Information in the ITO to name Mr. Alakoozi

[215] Mr. Alakoozi submits that, considered in its totality, the ITO fails to establish that there are reasonable and probable grounds to believe that the interception of his private communications may assist in the investigation of the offences specified in the authorization.

[216] He asserts that the ITO demonstrates that there is no demonstrable connection between Mr. Alakoozi and any of the other targets named in the ITO. Accordingly, he argues that there is no basis to believe that he would be privy to any relevant conversations.

[217] He states at paragraph 32 of his Reply factum that "there is evidence that though the Applicant is professionally connected to some parties otherwise implicated in a criminal organization or criminal activity, he is clearly disconnected from their criminal activities". Accordingly, he submits there are "no reasonable and probable grounds to conclude that the interception of his communications may lead to evidence of the alleged crimes being investigated."

[218] In my opinion, there was material before the issuing judge that permitted him to conclude that there were reasonable and probable grounds to believe that the interception of Mr. Alakoozi's communications may assist in the investigation of the criminal organization offences being investigated in the authorization.

[219] At p. 322, paragraph 753 of ITO #1 the affiant notes that Mr. Alakoozi is employed as a tow truck driver with G.L. North York towing.

[220] ITO #1 establishes at p. 328, para. 763, that Mr. Alakoozi had previously used telephone number 647-544-6339. Between February 12, 2019 and February 27, 2019 that phone number had contact with the telephone number associated with Omer Gharibzada over 100 times.

[221] While ITO #1 disclosed at p. 422, para. 982, that Omer Gharibzada owned G.L. Towing, I accept that it would have been better, as part of full and frank disclosure, for the affiant to have reminded the issuing judge of this employment connection when referring to the frequency of communication between Mr. Alakoozi and Omer Gharibzada.

[222] However, if she had done so, the reminder would have to have included the information at p. 422, para. 982 from C.S. #09 that Omer Gharibzada was always seen with large amounts of cash, and that he "is running lots of shady operations and is using the tow truck company as a front for it."

[223] In light of the totality of the information in ITO #1 about Omer Gharibzada, previously referred to, including his You Tube of March 23, 2018 acknowledging his involvement in gang-related criminal activity, the information about G.L. Towing, and the other information about Mr. Alakoozi, it was open to the issuing justice to conclude that the interception of Mr. Alakoozi's communications may assist the investigation.

[224] In addition, there were calls on 2 occasions to a phone number associated with Saman Rafipour, who the ITO showed was involved as a member of Deep Waters, and to a phone number associated with Shadab Nabizada on 2 occasions between Feb. 14 and 21, 2019: ITO #1, p. 328.

[225] Furthermore, the telephone number 647-544-6339 was on the contact list of a phone number belonging to Saman Rafipour: ITO #1, p. 327, para. 763.

[226] In my opinion, the substantial number of telephone calls with Omer Gharibzada, who the ITO established was a senior member of the Deep Waters gang, in conjunction with telephone calls to others associated with its criminal activities, provided the reasonable and probable grounds that permitted the issuing judge to conclude that the interception of Mr. Alakoozi's telephone communications may assist in the investigation of the criminal organization offences being investigated with the authorization.

[227] In my opinion, this is the case, notwithstanding the fact that Mr. Alakoozi also was shown to have an employment relationship with Omer Gharibzada. The frequency of his telephone contact with Omer Gharibzada, reasonably regarded as a senior member of Deep Waters, meant it was open to the issuing judge to conclude that intercepting his calls may assist in the investigation, whether or not he was involved in the gang's criminal activities. See R. v. Abdirahim, supra, at paras. 50-51.

Tevin DaCosta's Challenge to Being Named in the Second Authorization dated May 21, 2019

[228] Tevin DaCosta (Mr. DaCosta) challenges his naming in the second authorization granted by Justice McMahon on May 21, 2019. Mr. DaCosta does not challenge the fact that the second authorization was granted, but rather argues that he ought not to have been named in the second authorization.

[229] The offences for which private communications were sought to be intercepted in the second authorization were:

(a) Participation in a criminal organization, contrary to section 467.11 of the Criminal Code;

(b) Commission of an indictable offence for the benefit, at the direction, or in association with a criminal organization, contrary to section 467.12 of the Criminal Code;

(c) Instructing the commission of an offence for a criminal organization, contrary to section 467.13 of the Criminal Code;

(d) Any conspiracy to commit, or attempt to commit, or the offence of being an accessory after the fact, in relation to the offences set out above, or any counselling, procuring, or inciting with relation to the offences set out above. (ITO #2, paras.18-19.)

[230] Mr. DaCosta submits that it is speculative to suggest that the naming of Mr. DaCosta could possibly assist in the investigation of the offences, as Mr. DaCosta submits that he was named in the second authorization based upon "one communication that is believed to be about a firearms transaction".

[231] He submits that there is nothing in ITO #2 to suggest that this was anything but a one-off and discrete transaction, that there is no articulated link between Mr. DaCosta and any of the other parties named in the investigation, and therefore that there was no basis for the issuing judge to conclude that the interception of Mr. DaCosta's private communications may assist in the investigation of the offences.

[232] As Mr. DaCosta accurately submits in his written submission, to be named in an authorization, investigators must "know a person's identity and have reasonable grounds to believe that the interception of that person's private communications may assist in the investigation of an offence: R. v. Brammall, 2019 ONSC 7334, at para. 74.

[233] As Akhtar, J. has recently summarized in R. v. Brammall, supra, at para. 75:

"The question for the reviewing judge is to determine whether the information in the ITO sufficiently links the named target to the offences investigated or others involved in the offences to conclude whether the interception of their communications could assist in the investigation of those offences: R. v. Nugent, (2005), 193 C.C.C.(3d) 191 (Ont.C.A.) at paras.8-9"

[234] In my opinion, considering the information in ITO #2 as a whole, and in particular the detailed information linking Deshayne Newman to criminal organization offences, and the information that Mr. DaCosta was engaged in supplying a firearm and ammunition to Deshayne Newman, it was open to the issuing judge to conclude that the interception of the private communications of Mr. DaCosta may assist in the investigation of the criminal organization offences which were the subject of the authorization.

[235] The information supporting the naming of Mr. DaCosta included an intercepted communication of March 27, 2019 in which, in coded language, Mr. DaCosta had a detailed discussion with Mr. Newman about supplying a firearm and ammunition to Mr. Newman. It is an available inference from that intercepted communication that Mr. DaCosta was engaged as a middleman in the supply of a firearm and ammunition to Mr. Newman for profit: ITO #2, p. 352.

[236] Mr. DaCosta referred to working with "a youth" and he told Mr. Newman, in coded language, that he had to make sure he had the buyers because the suppliers were not going to get the firearm and ammunition and then "sit on them without buyers". Mr. DaCosta told Mr. Newman that his "boy" would go to Mr. Newman with the firearms and would show them to him: ITO #2, p. 352, at para. 841.

[237] Mr. DaCosta's ongoing involvement in selling firearms was a reasonable inference from his statement to Mr. Newman, captured in the wiretap of March 27, 2019, after Mr. Newman said that he needed some "extreme accessories" with a firearm that "it is anything you want and I could probably get the 30 and some beans [ammunition] and shit": ITO #2, p. 352, at para. 841.

[238] Mr. DaCosta also had discussion with Mr. Newman about whether he could supply a "beam" [ie a laser] with the firearm, and had discussions with Mr. Newman about making the price go down from a range of $4500 - $5,000 to $4000 but that he wanted to make sure they were good because he didn't want to place the order and then have everyone back out of the deal: ITO #2, p. 352, at para. 841.

[239] ITO #2 established that Mr. DaCosta had criminal convictions in 2014 for possession of a loaded prohibited or restricted firearm, possession of a firearm knowing its possession is unauthorized, and failing to comply with recognizance, and in 2017 for armed robbery, aggravated assault and failing to comply with probation: ITO #2, p.840.

[240] The evidence before Justice McMahon of Deshayne Newman's status as a member of a criminal organization, and his participation in criminal offences, was relevant in establishing reasonable and probable grounds to believe that the interception of Mr. DaCosta's private communications may assist in the investigation of the offences named in the authorization.

[241] The affiant stated in ITO #2 that "I believe that Deshayne Newman is a member of Success is Near [SIN]" and that he is involved in drug trafficking in both the Greater Toronto area as well as Thunder Bay. The affiant states that "intercepted communications also indicate that Deshayne Newman has been in communications with Principal Known Persons Clayton Robichaud and Omer Gharibzada": ITO #2, pp. 274-275, para. 663.

[242] The affiant incorporates by reference the reasons for intercepting the communications of Deshayne Newman set out in her March 19, 2019 affidavit at ITO #2, para. 667. An affidavit in support of a second authorization can incorporate by reference the evidence in an affidavit sworn in support of an earlier authorization: R. v. Riley, [2009] O.J. No. 738, at para. 268. (Ont. Superior Court).

[243] In ITO #1, confidential source information identified Deshayne Newman as a mid-level cocaine dealer, and as a person who was good friends with Omer Gharibzada and Clayton Robichaud, who was his cousin. CS #4 also identified Mr. Newman as a SIN guy: ITO #1, pp. 686-689, paras.1591-1603.

[244] On January 6, 2018 Mr. Newman was arrested on robbery warrants and firearm charges. On January 19, 2018 the Instagram account of Omer Gharibzada posted a photo of Mr. Newman with the comment "free my dawg": ITO #1, pp.687-689. A reasonable inference from this Instagram post was to demonstrate solidarity between Omer Gharibzada, shown in the ITO to be a member of Deep Waters, and SIN, and Mr. Newman.

[245] Mr. Newman is also included in a March 12, 2017 post on the Instagram account of Shadab Nabizada along with Omer Gharibzada, Clayton Robichaud, Tamim Amem, and others. The hashtags referred to two known gangs SIN and Deep Waters: ITO #1, p. 689, para. 1603

[246] Tamim Amem is seen in the posting making a Deep Waters sign using his fingers to form the letters D and W: ITO #1, at p. 689, para. 1603

[247] All of this material from ITO #1 was available to the issuing judge in issuing ITO #2 based on the adoption of the March 19, 2019 affidavit by the affiant at p .275, paragraph 667 of ITO #2.

[248] In ITO #2, there was evidence of a March 28, 2019 conversation between Mr. Newman and Clayton Robichaud, interpreted by the affiant to involve planning several robberies: ITO #2, p. 276, para. 669.

[249] Having regard to the information before the issuing judge of Mr. Newman's involvement in the SIN gang, and his ongoing drug-trafficking, and Mr. DaCosta's involvement with a supplier in selling a firearm to Mr. Newman, in my opinion it was open to the issuing judge to conclude that there were reasonable and probable grounds to believe that the interception of Mr. DaCosta's private communications may assist in the investigation of the criminal organization offences named in the second authorization.

[250] Accordingly, he was properly named in the second authorization, and his application is dismissed.

Conclusion

[251] I would like to thank all counsel for their very thorough and helpful written and oral submissions, and for the co-operation of all counsel in the efficient presentation of the submissions on this application.

Released: July 31, 2020

Justice D.M. Porter