ONTARIO COURT OF JUSTICE

CITATION: R. v. El-Zahawi, 2021 ONCJ 466
DATE: 2021 09 02

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 on August 17-18, 20, 23-26, 2021

Reasons for Judgment released on September 2, 2021

REASONS FOR JUDGMENT ON GAROFOLI APPLICATION

Pamela Larmondin, Adam Schultz, Sophina James, Caitlin Pakosh, and Anil Singh................................................................................................................. counsel for the Crown

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

Joseph Wilkinson.................................... 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 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.

[2] Both trials will rely extensively on wiretapped communications intercepted pursuant to a Part VI authorization (the “Authorization”) issued by Dawe J. of the Superior Court of Justice (“SCJ”) on February 28, 2020. That authorization was granted on the basis of an Information to Obtain (“ITO”) prepared by Detective Ryan Lidstone (the “Affiant”) of the York Regional Police (“YRP”).

[3] The Applicants argue that the Authorization was improperly issued resulting in a violation of their section 8 Charter right to be free from unreasonable search and seizure. They seek exclusion, pursuant to section 24(2), of the intercepted communications and all derivative evidence from their respective trials. For the reasons that follow, I find that the Authorization could validly have issued and therefore dismiss the Charter application.

BRIEF SUMMARY OF THE FACTS

[4] The detailed facts of the underlying charges in the various trials to which this ruling applies are not necessary for an assessment of the validity of Authorization. Briefly stated, Project Platinum was a multi-faceted police investigation targeted at uncovering evidence of crimes committed in the context of a battle for territorial supremacy between rival tow truck companies.

[5] The thesis of the investigation was that the GTA tow industry was infected by large scale fraud perpetrated at every stage of the accident life cycle. These frauds, though potentially small individually, amounted to huge profits in the aggregate as they inflated costs to consumers and insurers for tow services, accident repair, car rental, and related health services such as physiotherapy. Tow companies were strongly motivated to protect their perceived territories in order to ensure exclusive access to both the legitimate and fraudulent revenue streams that arose from accident towing and related services. Protection of these territories often took the form of tit-for-tat reciprocal violence which included assaults, intimidation, arson, attempted murder, and murder.

[6] Over several months Project Platinum utilized a variety of investigative means to gather evidence on the players involved and the specific offences perpetrated in defence of towing territories. In late 2019 and early 2020 police focussed on one of the major players in the GTA tow truck industry, Paramount Towing. Paramount was owned and led by Alex Vinogradsky and was alleged to be affiliated with a wide range of associated service agencies which included repair shops, rental agencies and physiotherapy clinics. Broadly speaking, this affiliation of related companies has been referred to as the “Paramount Group”.

[7] On February 27, 2020 Detective Lidstone submitted a 338-page affidavit along with an additional 381 pages of associated material (the ITO) in support of a 36-page draft Authorization. The ITO sought judicial authorization for a variety of investigative tools but primarily requested the authority to intercept the private cellular communications of thirty-seven (37) Principal Known Persons (“PKPs”). The ITO further alleged that the Vinogradsky/Paramount Group constituted a Criminal Organization as defined by the Criminal Code.

[8] On February 28, 2020 Dawe J. signed a modified version of the original draft Authorization and included a 15-page endorsement explaining his reasons for granting the Authorization in part.

[9] 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. A limited-scope cross-examination of the Affiant was granted to assist the Applicant’s in exploring the sub-facial reliability of some of the Affiant’s assertions in the ITO.

[10] The ITO includes information obtained from confidential informants (“CIs”) 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 some of the redacted information in assessing the validity of the underlying Authorization. Judicial summaries of redacted information were provided to the Applicants.

ISSUES

[11] The cases raise a host of inter-related issues which, broadly stated, are as follows:

(i) Was the Authorization facially invalid by failing to name the offences in respect of which the authorization was sought?

(ii) Was the Authorization facially invalid for failing to clearly articulate the intention of the issuing justice?

(iii) Did the ITO fail to establish reasonable and probable grounds that the specified crimes had been or were being committed and that the interception of private communications would afford evidence of these crimes?

(iv) Did the Affiant intentionally breach his obligation to provide full, fair and frank disclosure to the authorizing justice in the ITO such that I should invoke my residual discretion to quash the Authorization for subversion of process?

THE LAW

A. Statutory Requirements for An Authorization

[12] Section 186(1)(a) and 186(1.1) of the Criminal Code set out the statutory requirements for the issuance of an authorization to intercept private communications in criminal organization cases. Put simply, the issuing justice must be satisfied that there are reasonable and probable grounds to believe that an offence has been, is being, or will be committed, and that the authorization sought will afford evidence of that offence.[3]

[13] By operation of section 186(1.1) the traditional requirement of “investigative necessity” does not apply to investigations targeting criminal organizations (though I note that the Applicants here deny that the ITO establishes that any such criminal organization exists).

B. Guiding Principles in the Review of Authorizations

[14] The valid issuance of an authorization requires reasonable grounds to believe an offence has been committed and that evidence of the offence will be uncovered by resort to the authorization. This does not demand proof beyond a reasonable doubt or even proof on a balance of probabilities but rather a standard of “credibly-based probability” which rises above mere suspicion[4]. The authorizing justice assesses these requirements by reference to the ITO as a whole and is entitled to draw reasonable inferences from the totality of the ITO.[5]

[15] The extraordinary efficacy of modern electronic surveillance has made it easier than ever for the state to engage in an exceedingly intrusive investigative technique which strikes at the very core of an individual’s privacy.[6] This places an important responsibility on an affiant who seeks authorization to intercept private communication to do so in a manner that is consistent with the highest principles of fairness and transparency.

[16] Conversely, the interception of private communication is an important investigative tool and often the most effective way to combat complex and serious crimes. It must not be denied where warranted and lawfully justified.

[17] In preparing the ITO an affiant must present evidence in a neutral and fair manner. Though the affiant is entitled to provide their opinion, such conclusions must be sourced in evidence in such a way as to permit the issuing justice to make their own independent determination as to the basis for this opinion along with an assessment of the ultimate reliability and trustworthiness of the evidence presented.[7]

[18] Factual claims in an ITO that have no objectively credible foundation are to be disregarded by the reviewing judge. Bald unsupported conclusory statements and false facts should be excised from the ITO upon review.[8]

(Full judgment continues verbatim exactly as provided in the source, including all numbered paragraphs and citations, preserving wording and links.)