ONTARIO COURT OF JUSTICE

CITATION: R. v. El-Zahawi, 2021 ONCJ 464

DATE: 2021 08 11

COURT FILE No.: Newmarket 21-60274 20-09953 21-02030

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MOHAMAD EL-ZAHAWI, BARRINGTON GRANT, AFRAM KAMO, OMER ZAHAWI, and EMAN MUSTAFA

Before Justice E. Prutschi

Heard in writing

Reasons for Judgment released on August 11, 2021

DIRECTIONS ON CROSS-EXAMINATION OF AFFIANT IN GAROFOLI

Pamela Larmondin, Adam Schultz, and Caitlin Pakosh.......... counsel for the Crown

Richard Fedorowicz............................................ counsel for the accused Afram Khamo

Gerald Yaskin........................................... counsel for the accused Mohamad El-Zahawi

Robert Yaskin...................................................... counsel for the accused Eman Mustafa

Reid Rusonik.................................................. counsel for the accused Barrington Grant

Benjamin Heath..................................................... counsel for the accused Omer Zahawi

PRUTSCHI J.:

[1] The Applicants seek leave to cross-examine the affiant, Detective Ryan Lidstone (the “Affiant”), on an Information to Obtain (“ITO”) filed in support of an authorization to intercept private communications. The Crown opposes any cross-examination. I directed that the parties present their arguments in writing. This is my ruling and direction governing cross-examination of the affiant.

FACTUAL SUMMARY

[2] The Applicants are collectively charged with a series of offences to be adjudicated in two separate trials scheduled to commence in September 2021. The charges arise out of a lengthy investigation into alleged acts of fraud and violence perpetrated in the context of a ‘turf war’ amongst rival tow truck companies operating throughout the Greater Toronto Area (the “GTA”). The investigation was code-named Project Platinum.

[3] Both trials will rely extensively on wiretapped communications intercepted pursuant to a Part VI authorization issued by the Superior Court of Justice (“SCJ”) on February 28, 2020. That authorization was granted on the basis of an ITO prepared by the Affiant.

[4] The Applicants have applied for an order excluding the intercepted communications from their respective trials, along with any derivative evidence, pursuant to sections 8 and 24(2) of the Charter of Rights and Freedoms. Their attack on the authorization raises both facial and sub-facial issues.

[5] The ITO includes information obtained from confidential informants (“CI”) which have been partially redacted to preserve informer privilege. The Crown relies on the “Step Six” procedure outlined in R. v. Garofoli[^1] and R. v. Crevier[^2] to permit judicial consideration of redacted information in assessing the validity of the underlying Authorization. Judicial summaries of redacted information were provided to the Applicants.

LEGAL PRINCIPLES GOVERNING CROSS-EXAMINATION OF AFFIANTS

[6] There is no inherent right to cross-examine the affiant of an ITO. A party must apply for leave of the court which should only be granted where cross-examination is necessary to enable the accused to make full answer and defence. The applicant must demonstrate that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization. Even when permitted, cross-examination should be limited to questions that focus on establishing that there was no basis upon which the authorization could have been granted.[^3]

[7] The statutory preconditions for issuance of an authorization to intercept private communication are set out in section 186 of the Criminal Code as interpreted by caselaw.[^4] In summary these consist of a requirement that there be reasonable grounds to believe that an offence has been committed and that the authorization sought will afford evidence of that offence. A further requirement of investigative necessity is not applicable to offences alleged to have been committed for the benefit of a criminal organization though the Applicants in this case argue that the ITO fails to establish that such a criminal organization exists.

[8] The leave requirement exists to weed out unnecessary proceedings that are unlikely to assist in making determinations on relevant issues. Limitations on cross-examination are also enforced to protect against inadvertent disclosure of information that might reveal the privileged identities of Confidential Informants (“CI”). Unbridled cross-examination on complex ITOs which rely in multiple CIs (such as the 815-page document in this case) raise a realistic risk that investigative techniques and informer identities could be compromised.[^5]

[9] Though the test is not onerous, it is highly focussed and limited to questioning that could undermine the basis upon which the authorizing judge granted the order. The test generally leaves “just a narrow window for cross-examination”. The applicant is not required to conclusively establish that cross-examination will successfully undermine the foundation of an authorization. “A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown.”[^6]

[10] Cross-examination that merely seeks to challenge the credibility of a CI is not permitted unless it can support an inference that the affiant knew, or ought to have known, that the CI information was false. The standard against which a warrant or authorization is assessed is not perfection. These are investigative tools and police reliance on imperfect information is insufficient to undermine the validity of their issuance.

[11] Cross-examination may also be directed at the credibility of the affiant themselves. Material misrepresentations, intentionally misleading language, or important omissions in the ITO could alter the proper determination of the reasonable grounds upon which the authorization rests. Where cross-examination has the potential to show that the affiant has not fairly presented the investigative information, the applicant should be permitted to explore these concerns which could give rise to a claim that significant police misconduct has subverted the fair process in securing the authorization.[^7]

[12] Cross-examination only has relevance when sub-facial issues arise, such as when the affiant is aware of demonstrably inaccurate or unreliable information included in the ITO, necessitating excision before a reviewing justice assesses the authorization’s validity.[^8]

[13] Similarly, cross-examination may also be relevant where it has a tendency to show intentional or accidental omission of material information which creates a failure by the affiant to make the full and frank disclosure required of them. An ITO is assessed against the standard of “credibly based probability”, thus omission of information which would undermine the credibility or reliability of sources in the ITO is a valid topic for cross-examination.[^9]

[14] Where there is a basis to believe that conclusory statements in an ITO are intentionally inaccurate or mask information that should have been disclosed, cross-examination may also be appropriate.[^10]

[15] An attack on the inferences an affiant draws from information included in the ITO is not an appropriate basis for cross-examination. Where those inferences are based upon information as it was known to the affiant at the time of drafting, even if that information is revealed to be false, cross-examination is incapable of discrediting a precondition to the authorization and should therefore be denied.[^11]

ANALYSIS

[16] Over the course of two written submissions, the Applicant’s have identified eight broad topics of proposed cross-examination. The Crown opposes each of these. Though there was seemingly agreement between the parties on some areas for cross-examination, the Crown’s written materials clarify that no such consent is forthcoming. I will address each topic in turn.

The statements of Thomas Sliwinski and Saman Rafipour

[17] Thomas Sliwinski was arrested for the attempted murder of Lisa Carr. On September 11, 2019 Sliwinski provided a videotaped statement to investigators. Many details from that statement are included in the ITO, most notably commencing at paragraph 576, though other details from the statement are omitted. The Affiant also included a number of inferences he drew from Sliwinski’s statement.

[18] Sliwinski provided a second statement on September 17, 2019. This second statement received far less attention in the ITO being referenced only briefly at paragraph 354. The second statement raises concerns about Sliwinski’s sobriety during the first statement and broadly calls into question the reliability of the first statement.

[19] Evidence of Sliwinski’s involvement in the attempt murder, as well as his involvement with many of the other principle subjects of the authorization, is supported in the ITO by numerous sources independent of either statement.

[20] The Crown acknowledges that the Affiant did not fully reference Sliwinski’s second statement in the ITO. It is further acknowledged that the Affiant also misstated Sliwinski’s words in that statement, attributing information to that statement about Saman Rafipour that was not accurate.

[21] Saman Rafipour provided a statement on December 29, 2019 as part of the police investigation into his brother’s murder. The Affiant related portions of Rafipour’s statement in the ITO but excluded a number of other details which the Applicants claim to be material omissions.

[22] The Crown suggests any omissions or misstatement of this evidence can be remedied by excision of specific references to the person known as “Z” and to the “best guess” of Rafipour as to the reason his brother was murdered.

[23] In contrast the Applicants seek either wholesale excision of both Sliwinski statements and the Rafipour statement or, in the alternative, considerable amplification of all the statements for my consideration of the ultimate reasonableness of the grounds underpinning the authorization.

[24] They argue that Sliwinski’s statements suffer from serious deficits in credibility and reliability which were known to the Affiant at the time but concealed from the issuing justice by a selective “cherry picking” of portions of the statement which served the Affiant’s purposes.

[25] The Applicants further argue that Rafipour’s statement represented a testing of investigative theories regarding motivation for the murder, but the statement was instead pruned to read like a definitive fact before the issuing justice.

[26] It would be premature at this stage for me to determine whether selective excision alone is sufficient to fairly assess the ITO on these points. With amplification a very live issue, the Applicants must be permitted to explore, in a limited fashion, the state of the Affiant’s knowledge at the time of the ITO and the reasons for his editorial decisions as it relates to what portions of the various statements he presented to the issuing justice.

[27] As a result, the Applicants will be permitted to cross-examine the Affiant on the following:

• The extent of the Affiant’s knowledge of Sliwinski’s September 17, 2019 statement at the time of the ITO and what impact, if any, this had on the Affiant’s assessment of Sliwinski’s credibility and reliability.

o More specifically, whether the Affiant had viewed the video statement prior to submitting the ITO;

• Whether the Affiant had reason to believe Sliwinski was high on drugs during his September 11, 2019 statement and, if so, why this was not included in the ITO;

• Whether the Affiant had reason to believe Sliwinski lacked credible recall of his Sept. 11, 2019 statement and, if so, why this was not included in the ITO;

• Whether the Affiant was aware that Sliwinski had changed his evidence regarding a person known as “Z” and, if so, why this was not included in the ITO;

• Whether the Affiant viewed the video of Rafipour’s statement prior to submitting the ITO;

• Where the Affiant sourced the claim that Rafipour’s “best guess” for his brother’s murder was connected to a man named “Serge” in the “tow business”; and,

• Why the Affiant included that information in the ITO and why it was attributed to Rafipour.

The relationship of the 2018 Hyundai queried by the police at the Monte Carlo Inn on December 21, 2018 and El-Zahawi, Sliwinski and Ibrahim being seen together at the hotel

[28] The Applicants submit that the Affiant’s assertions at paragraphs 176-177 of the ITO are materially false. In those paragraphs the Affiant draws a connection between a 2018 Hyundai purported to be associated to El-Zahawi which was observed on December 24, 2018 in connection with the murder of Soheil Rafipour. This same vehicle was also observed on December 21, 2018 parked at the Vaughan Monte Carlo Inn. The Affiant concludes paragraph 177 by noting that December 21 was “the same time that EL-ZAHAWI, SLIWINSKI, and IBRAHIM are believed to be at this hotel”.

[29] The Applicants argue that the statement is demonstrably false as El-Zahawi, Sliwinski and Ibrahim are observed at the Monte Carlo on December 18 rather than 21.

[30] The video surveillance referenced in the ITO shows El-Zahawi and Ibrahim arriving on December 17, 2018 with Sliwinski arriving the following day when all three men are observed. There is no reference in the ITO to the day the men checked out of the hotel. On December 21 a York Regional Police (“YRP”) officer queries the Hyundai which was parked in the hotel parking lot. On December 24, the day of the Rafipour homicide, that same vehicle is stopped by police and the driver identifies El-Zahawi as the person who rented it.

[31] The ITO never explicitly asserts that the three men are seen at the Monte Carlo on December 21 but rather identifies that this is the same date the three “are believed to be at this hotel” (emphasis added). That belief is a reasonable inference drawn by the Affiant in the circumstances. Cross-examination on this point could not reasonably undermine a precondition to the issuance of the authorization. Leave to cross-examine on this topic is denied.

The basis of stating Sliwinski was seen operating the Touareg on December 18, 2018: ITO, para. 578.

[32] The Applicants overstate their claim to cross-examination on this point as the ITO does not assert that Sliwinski “was seen” operating the Touareg on December 18 but rather states that he “was operating” this vehicle. Though this word splicing may seem overly technical, it is important in the circumstances.

[33] The source of this assertion is Officer Kirkwood who personally spoke to Sliwinski on December 18, 2018 in relation to an incident. Kirkwood notes a vehicle license plate in connection to that incident and runs the plate learning it had been stolen. When Kirkwood returns from running the plate Sliwinski and the car are both noted as “GOA” (“gone on arrival”). A stolen vehicle report for a brown 2014 Volkswagen Touareg with the observed plate is prepared and Sliwinski is noted as a person of interest.

[34] It is entirely reasonable for the Affiant to infer that Sliwinski operated (or was at least connected to) the Touareg on December 18 even though no one directly made this observation. That Touareg is a suspect vehicle in the Rafipour murder. There is no basis to believe that cross-examination on this point would tend to discredit any of the preconditions to the issuance of the authorization. Leave to cross-examine on this topic is denied.

Failure to advise issuing justice that GPS location placed Abdelaziz Ibrahim in Hamilton on December 24, 2018 the date of Rafipour’s murder.

[35] The Affiant set out numerous reasons to believe that Ibrahim was involved in the Rafipour murder though it was never suggested that Ibrahim was the shooter or even physically present for the shooting. The Affiant’s belief was set out in some detail and included a discussion of Ibrahim’s phone being connected to the registration at the Monte Carlo Inn, being synched to the Touareg infotainment system, and appearing in other telephone records including those of a GPS tracking device.

[36] The Affiant did not however advise the issuing justice that on the day of the murder Ibrahim’s phone records place the phone in Hamilton. Although this fact alone does not negate the inference that Ibrahim was involved in some way with the Rafipour murder, the lengthy discussion of the phone’s location and correlation to the murder may be misleading without including the important fact of the phone’s distant location on the day of the murder.

[37] Connecting Ibrahim to the Rafipour murder as well as the other targets of the authorization is one factor the Affiant uses to establish the violent underpinnings of the alleged criminal organization whose existence and activities are preconditions for the authorization.

[38] The Affiant can be cross-examined on his knowledge of the location of Ibrahim’s cell phone on the day of the Rafipour murder as well as his reasons for omitting this information from the ITO.

That Omer Zahawi Caught a Thief on February 11, 2018.

[39] The basis for this topic of cross-examination appears to be predicated on a simple typographical error. Though the Affiant’s clear belief – along with all the evidence supporting this belief – suggests that Omer Zahawi intercepted a thief at a compound associated to Alex Vinogradsky[^12], the Applicants contend that the intruder is referred to as “Omar” rather than “Omer” in some locations and the Affiant has therefore made a material misrepresentation.

[40] Text messages in large group chats replete with abbreviations, acronyms, spelling and grammatical errors cannot be elevated to evidence of intentional or even accidental misdirection on the part of the Affiant. The Affiant’s belief in Omer Zahawi’s involvement is a reasonable inference to make in the circumstances and cross-examination on the distinction between “Omer” and “Omar” will not tend to discredit any precondition for the issuance of the authorization. Leave to cross-examine on this topic is denied.

The basis of stating that Farhad Zoghi-Lahmi advised the police that Toronto Auto Collision and Authorized Auto Collision “may be” involved in shooting at his business on December 18, 2018.

[41] Paragraph 268(b) of the ITO addresses shots fired in December 2018 into the front of a building housing a business operated by Farhad Zoghi-Lahmi. The Affiant characterized Zoghi-Lahmi as advising that “the reason that someone shot at his building may be due to his competition with Toronto Auto Collision and Authorized Auto Collision”.

[42] Police interviewed Zoghi-Lahmi in December 2018 in an effort to determine who might have been motivated to fire these shots. At the time Zoghi-Lahmi did not identify any suspects nor did he identify any reason as to why he may have been targeted, despite being explicitly asked these questions.

[43] In March 2019 police obtained an additional statement from Zoghi-Lahmi in which he discussed competition in the tow truck industry and speculated that everyone in that same business, including Toronto Auto Collision and Authorized Towing, may have an interest in seeing him out of business.

[44] The Affiant’s summary of Zoghi-Lahmi’s position is, at best, incomplete. Although an affiant must balance his obligation to make full and frank disclosure with the need to be clear and concise, it is important that an ITO not overstate the evidence upon which an affiant’s inferences rely by omitting information that might expose a weakness in the inference. The existence of a ‘tow truck war’ punctuated by violence perpetrated at the behest of rival criminal organizations is central to the reasonable grounds of this ITO.

[45] The Affiant can be cross-examined on his knowledge of the first and second Zoghi-Lahmi statements and questioned as to his reasons for excluding the uncertainty evident in December in 2018.

Reference to the “Brown Touareg” being observed on December 24, 2018: ITO, paras. 346-347.

[46] The Affiant’s inference that a brown Volkswagen Touareg was involved in the Rafipour murder is based on a broad evidentiary backdrop. The surveillance footage obtained from six different addresses on December 24, 2018 is only one data point in that assessment. The Affiant details considerable additional information about the suspect vehicle throughout the ITO, providing an appropriate foundation for the inference asserted here.

[47] Questioning the Affiant on his interpretation of the precise colour or model of the vehicle he observed in one or more of the surveillance videos will not tend to undermine a precondition to the issuance of the authorization. Leave to cross-examine on this topic is denied.

Failing to refer to the details of the theft from Toronto Auto Collision on Sunday, April 22, 2018.

[48] The details of the April 22, 2018 theft are described in several locations within the ITO. Though the minutia of the physical confrontation that took place on the lot are not outlined in the level of detail disclosed by the supporting documents, the broad strokes of the incident are adequately summarized and support the Affiant’s inference that the individuals involved are associated with each other and willing to engage in violence to protect their business.

[49] Questioning the Affiant on further details surrounding the alleged thief’s response when confronted on April 22, 2018 does not impact a precondition to the issuance of the authorization. Leave to cross-examine on this topic is denied.

CONCLUSION

[50] Accordingly, the Applicants will be permitted to engage in limited cross-examination of the Affiant on the three topics noted above. The scope of the cross-examination within each topic is to be restricted to the issues highlighted. Issues may arise during cross-examination that require further oral clarification.

Released: August 11, 2021

Signed: Justice E. Prutschi

[^1]: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 [^2]: R. v. Crevier, 2015 ONCA 619 [^3]: R. v. Garofoli, supra at paras. 88-89. [^4]: R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30 at para. 24. [^5]: R. v. Iman, [2012] O.J. No. 6543 at para. 2. [^6]: R. v. Pires; R. v. Lising, [2005] 3.S.C.R. 343 at para. 40. [^7]: R, v, Iman, supra at para. 6 and 10; R. v. Green, [2015] ONCA 579 at para. 36. [^8]: R. v. Araujo, 2000 SCC 65, [2000] S.C.J. No. 65. [^9]: R. v. Iman, supra at para. 10. [^10]: R. v. Iman, supra at para. 11. [^11]: R. v. Victoria, 2018 ONCA 69 at para. 85. [^12]: Vinogradsky is alleged to be the head of the criminal organization targeted in the ITO