ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO. 13-9000065-0000
DATE: 20130118

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

Bari Crackower and Chris Bundy for the Crown

• and -

SAEID CHEGINI, FARDIN AYATI-GHAFFARI and MANSOUR CHEGINI

Applicant

Stacey Nichols for Fardin Ayati-Ghaffari, Susan Adams for Saeid Chegini, and E. Ghebrai for Mansour Chegini

HEARD: January 16-19, 2013

Thorburn J.

R U L I N G

THE ISSUE

[1] The Applicants are charged with importation of large quantities of opium, conspiracy to import opium and other offences. The issue to be decided on this Application is whether the Applicants should be permitted to cross-examine Detective Constable Bryn Taylor on her affidavit sworn in support of a wiretap authorization.

[2] A wiretap authorization was granted to police to intercept communications among the Applicants Saeid Chegini, Fardin Ayati-Ghaffari, Mansour Chegini and others, pursuant to sections 185 and 186 of the Criminal Code R.S.C., 1985, c. C-46. Reasons for granting the order were provided on November 8, 2010.

[3] Thereafter, a number of conversations were captured by police. Police seized a large shipment of ephedrine concealed in towels from the residence of Mansour Chegini and gathered evidence that connected Fardin Ayati-Ghaffari and Saeid Chegini to an earlier shipment of opium that had been concealed in armoires in 2008. Other evidence regarding charges against the Applicants was also gathered.

[4] Saeid Chegini, Fardin Ayati-Ghaffari and Mansour Chegini seek leave to cross-examine Bryn Taylor, the affiant who swore the affidavit filed in support of the wiretap authorization. They claim cross-examination will elicit testimony tending to discredit the affiant, Bryn Taylor, and demonstrate that the disclosure in the affidavit is misleading and insufficient to justify the wiretap authorization. The following grounds are asserted:

a. there are no meaningful credibility or reliability assessments of the confidential informants and there was little corroboration of the confidential informants’ information by the police;

b. there has been no full, fair and frank disclosure on the part of the affiant;

c. there is no foundation for some of the assertions made by the affiant; and

d. there was no investigative necessity to resort to wiretap as opposed to other investigative techniques. (A fifth ground, attacking the affiant’s assertion that there were grounds to believe there was a criminal organization, was abandoned during oral argument).

THE FACTS

[5] In her affidavit, the affiant Bryn Taylor summarized the investigation conducted to date. Taylor describes herself in paragraph 18 of her affidavit as “one of the investigators in this project [who has] ensured that the information is properly sourced by independently reading all of the police reports and notes referred to and relied upon in this Affidavit.” She also notes that her supervisor, Detective Green (who was also the officer who communicated directly with the confidential informants) had read the affidavit and confirmed its accuracy.

[6] The affidavit also contained background information about all of the targets of the investigation. The affiant Taylor provided the following information:

[7] In January 2010, after receiving information from several confidential informants, the Major Projects Section of the Toronto Police Service Drug Squad, along with other police forces and the Canadian Border Services Agency (CBSA), initiated an investigation they called Project Khiar to investigate allegations that opium was being imported from Iran into Canada.

[8] Between January and September 2010, CBSA seized four shipments of goods that contained opium. The opium was hidden in cargo containers of legitimate goods such as furniture, refrigerators and food products. 135 kilograms of opium were seized.

[9] On each occasion, CBSA officers seized the container before it was picked up by the consignee. The opium was discovered and retrieved and the goods were resealed.

[10] On February 9, 2010, goods from which opium had been seized were taken to a storage facility called In Storage. Fardin Ayati-Ghaffari and Saeid Chegini were observed by police investigators attending the storage facility as an unknown group of labourers were unloading containers. Ayati-Ghaffari and Chegini were also observed by police taking goods from the storage container to their vehicles and leaving.

[11] On September 27, 2010, a confidential informant (who later became a police agent) advised Detective Green that Ayati-Ghaffari wanted him to pick up a shipment that contained Opium. Detective Green was provided with the waybill for the shipment in the name of Persian Food on the Run, a company that had been owned by Ayati-Ghaffari and recently signed over to the confidential informant for the sum of $1000. CBSA agents located the shipment and confirmed that opium was found in containers of cherry syrup.

[12] The confidential informant advised that he was to meet with Ayati-Ghaffari on September 29, 2010, in order to pick up the funds with which to pay the duty on the shipment. Surveillance crews observed the confidential informant with Ayati-Ghaffari on that day.

[13] Surveillance reports and phone records demonstrate that Saeid Chegini and Ayati-Ghaffari were seen together and there were several telephone communications between them.

[14] Taylor observed that traditional techniques including surveillance and use of confidential informants had been useful to get advance notice of, find and seize the shipments of opium, to locate the storage facility for the containers and to obtain limited information to identify those seen coming and leaving the storage facility.

[15] However, Taylor stated that she did not believe continued use of confidential informants and traditional police techniques would enable police to identify and apprehend all of those involved as the confidential informant (later police agent) said he was only close to Ayati-Ghaffari.

[16] As such, Taylor sought authorization to intercept the Applicants’ private telecommunications, a tracking warrant and obtain their telephone records.

[17] On November 8, 2010, Nordheimer J. granted the wiretap authorization. He wrote an endorsement that, “I am satisfied based on the information that the police have developed to date that there are reasonable grounds to believe that the targets of this investigation are involved in the movement of drugs into this country…The fact of criminal activity is evident. It is the extent of that criminal activity and the links to each of the targets that is unknown.” He concluded that the wiretap authorization was necessary as the targets are “attuned to police investigation techniques and take active steps in an effort to thwart more conventional methods of investigation.”

THE LAW

Obtaining a Wiretap Authorization

[18] Section 186 of the Criminal Code sets out the basis upon which a judge may issue a wiretap authorization. Section 186 provides as follows:

186. (1) An authorization under this section may be given if the judge to whom the application is made is satisfied

(a) that it would be in the best interests of the administration of justice to do so; and

(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

The Test for Reviewing a Wiretap Authorization

[19] The test to determine whether a search warrant is valid or not is “whether – after excising any offending portions of the ITO, there remains sufficient basis on the record before the issuing justice, as amplified on the review, for issuance of the warrant.” (R. v. Nguyen, (2011) ONCA 465, 2011 ONCA 465, [2011] O.J. No. 2787 at paras. 23 and 24.) In other words, could the issuing justice have granted the order? (R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343 at para. 40.)

[20] Charron J. said in Pires at para. 30,

Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context. In the end analysis, the admissibility of the wiretap evidence will not be impacted under s. 8 if there remains a sufficient basis for issuance of the authorization.

The Right to Cross-Examine on an Affidavit in Support of a Wiretap Authorization

[21] Whether or not to permit cross-examination is a matter within the discretion of the trial judge. (R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, 60 C.C.C. (3d) 161)

[22] In R. v. Pires at para. 40, the Supreme Court held that the only issue to be determined in deciding whether to permit cross examination of an affiant on a wiretap authorization is, “whether there is a basis upon which the authorizing judge could grant the [wiretap authorization] order.” The Applicant must show that there is a reasonable likelihood the cross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization. (Garofoli at para. 88.)

[23] In R. v. Mahal 2012 ONCA 673, [2012] O.J. No.4672 at para.44, Watt J.A. for the court held that “…the proposed cross-examination may be directed at the credibility or reliability of an informant who has provided information included in the affidavit, but must show more than that some of this information is false. Cross-examination may be permitted where the affiant’s own credibility is material to establish the statutory pre-conditions. The facial insufficiency of the affidavit may also provide a basis upon which to grant leave to cross-examine the affiant.”

[24] When permitted, cross-examination should be confined to questions directed to the issue for consideration by the court. (Pires at para. 10.)

ANALYSIS AND CONCLUSION

Credibility and Reliability of Informants and Lack of Corroboration of Information Derived from Confidential Informants

[25] The Applicants seek further information about the confidential informants in order to assess their credibility and reliability.

[26] Taylor states that, “The information provided by Confidential Human Source[s] is based on personal experiences and/or observations with the person(s) involved in this investigation.” No information is disclosed about the confidential informants except to say whether they have a criminal record and if so, whether it is for a crime of dishonesty, and whether they seek financial or other compensation for the information disclosed.”

[27] Informer privilege is absolute and prevents not only disclosure of the name of the informant but any information that might implicitly reveal his or her identity. The smallest details may be sufficient to reveal identity. (R. v. Leipert 1997 367 (SCC), [1997] 1 S.C.R. 281 at paras. 12 and 18 and R. v. Omar, 2007 ONCA 117, [2007] O.J. No. 541 at para. 42.) Given the dangers associated with identifying confidential informants and the legal protection afforded them, this background information is sufficient.

[28] The Applicants claim there is a lack of corroboration of information from the confidential informants.

[29] The affiant states that much of the information provided by the informants “has been corroborated by information police obtained as a result of traditional investigative techniques.”

[30] In January 2010, confidential informants informed the police that Ayati-Ghaffari and Saeid Chegini were arranging to ship large quantities of opium into Canada from Iran. The confidential informants also advised that in February 2010, Mansour and Saeid Chegini were expecting a large shipment of opium in the near future and Mansour Chegini had recently received a large shipment of opium in February 2010.

[31] Upon receipt of this information, police informed CBSA of the impending shipments and large quantities of opium were seized from the shipments in question. Information from one of the informants that he knew Ayati-Ghaffari was corroborated by police surveillance of their meeting. Shipping documents and business records seized served to link these Applicants to these shipments as did surveillance showing Ayati-Ghaffari and Saeid Chegini attending at the place where the containers were stored and leaving with boxes.

[32] The reliability of the information was also demonstrated by the fact that the shipments were found to contain large quantities of opium when they arrived in Canada.

[33] This is not a situation such as that in Garofoli where the affiant relies largely on information received from informants to support the police belief that a crime has been or is about to be committed. Taylor notes that, “Other than the initial information provided in January 2010, none of the other information provided has been relied upon in this affidavit.” (The information provided in January 2010, refers to the communication by informants of a plan on the part of Ayati-Ghaffari, Saeid Chegini and others to import a large quantity of opium to Canada.)

[34] Although some valuable information was obtained from confidential informants, that information served largely to inform police of impending shipments and when and where they would arrive. That information was corroborated by delivery of the shipments and discovery that they did in fact contain large quantities of opium. Thus, even if the informants are discredited, the factual basis for the authorization is not undermined.

[35] For these reasons, I am not satisfied that further information about the confidential informants is warranted or that there is a reasonable likelihood cross-examination would elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization. Accordingly, cross-examination regarding the credibility and reliability of the informants and corroboration of information they provided to police is not permitted.

Lack of Full and Frank Disclosure

[36] At paragraph 56(d) of the affidavit, Ayati-Ghaffari’s partner is described as, “Persian, 37-40 years old and drives a silver/grey BMW.” The notes dated September 28 provide a more fulsome description of Ayati-Ghaffari’s partner. The Applicants claim this shows a lack of full and frank disclosure on the part of the affiant, Taylor.

[37] I do not agree. On the contrary, the fact that the Applicants can point to only one instance in this lengthy 143 paragraph affidavit of alleged incomplete information in one paragraph as compared with another within the same affidavit does not represent a lack of full and frank disclosure. Moreover, the second description is not inconsistent; it is merely more fulsome than the first.

[38] The Applicants cite no other basis for their claim that Taylor failed to provide full and frank disclosure.

[39] I find that Taylor provided full and frank disclosure in her affidavit and there is no basis to permit cross examination on this ground.

Assertions without Foundation

[40] The Applicants claim a material assertion was made by the affiant without foundation.

[41] In paragraph 38 of the affidavit, the affiant states that “the shipping container was transported to an “In-Storage self storage facility…where the contents were subsequently unloaded by Saeid Chegini and Fardin Ayati-Ghaffari.” Elsewhere in the affidavit Taylor notes that Ayati-Ghaffari was seen unloading three shipments and Chegini was present on a second occasion while a second container was unloaded.

[42] At paragraph 74, the affiant states that, “through this investigation we can show some of the Known Persons had control over the various shipments, but have insufficient evidence to prove knowledge of the contents.” At paragraph 65 Taylor states that that “I believe that the storage lockers ... are strictly under the sole control of Ayati-Ghaffari and Chegini.”

[43] In her affidavit, Taylor notes that the police agent described the “partner” assisting Ayati-Ghaffari to import opium as a Persian male who drove a silver/grey BMW. Saeid Chegini is a Persian male who drove a silver/grey BMW.

[44] The Applicants concede that alone these grounds are not sufficient to warrant cross-examination on the affidavit.

[45] There is no basis to permit cross examination on the grounds that assertions were made in the affidavit without any foundation. I accept the Crown’s submission that there is no contradiction in the affiant saying she reasonably believed that Saeid Chegini was responsible for the opium concealed in pickles while also saying that police may need more evidence to warrant the bringing of criminal charges.

No Investigative Necessity

[46] The affiant states that four significant shipments of opium were seized. The authorities had been successful in identifying some of the parties who attended the storage unit and left with products from the container. However, she states that, “there are no other reasonable alternatives or investigative techniques that on their own would enable the investigators to achieve the objectives of this investigation.” She states that the police agent is only close to Ayati-Ghaffari, the members of the alleged conspiracy have longstanding associations, so it is unlikely that he could infiltrate the inner circle of individuals involved in this criminal behaviour.

[47] The Applicants claim that there was no necessity to issue a wiretap authorization at this time and that other techniques should have been pursued further. The Applicants challenge the assertion that the members have longstanding associations (save that two of them are brothers) and the contention that the agent could never infiltrate the inner circle. The Applicants suggest other techniques should have been used before resorting to wiretaps, given that wiretap authorizations are so highly intrusive and there was no urgency given that a longstanding investigation was in place.

[48] I disagree with the Applicants’ claim that the Applicants did not have longstanding associations: Ayati-Ghaffari and Chegini were observed arriving at the same location on more than one occasion, taking boxes from the same place, and telephone records show they were conversing with one another. The third Applicant (Mansour Chegini) is the brother of Saeid Chegini. There is therefore an evidentiary basis to suggest that these three Applicants were associated with one another. The police agent had worked for a prolonged period but had been unable to get close to anyone but Ayati-Ghaffari.

[49] Although the investigation had been ongoing for almost a year and four shipments containing large quantities of opium had been seized, police had insufficient information about who directed the shipments and who was involved in the importation to enable them to make arrests. Many other police techniques such as physical surveillance, controlled deliveries and use of information from confidential informants had been tried for some time. Four containers containing opium had already been seized and the opium removed. It is reasonable to assume therefore that those initiating the shipments might suspect they were at risk of discovery and change their tactics Canada.

[50] The following words of the Supreme Court in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 42, apply to the facts in this case: “Surveillance efforts alone would not bring [the police] into contact with higher-ups in the drug organization. Indeed I am quite uncertain how surveillance efforts alone would ever have given good proof of laundering and conspiracy.”

[51] It was therefore important to use additional measures to catch those responsible for shipment and delivery of the opium, before those targeted realized police were watching them.

[52] As set out in paragraph 65, the investigators planned to intercept the Applicants at their residence and through their mobile communication devices. They planned to use the police agent and tape the conversations between him and the Applicants.

[53] For this reason I find there was an investigative necessity to invoke the wiretap authorization.

SUMMARY OF CONCLUSION

[54] There is a basis upon which a judge could have issued this wiretap authorization. There are reasonable and probable grounds for believing serious offences had been committed, other techniques had been used over a prolonged period to determine those responsible, and it was anticipated that evidence adduced resulting from the wiretap authorization would provide evidence of who the perpetrators of these offences were.

[55] The Applicants have not demonstrated how cross examination on the proposed areas would tend to discredit one of the preconditions to the wiretap authorization. For these reasons the Application is dismissed.

Thorburn J.

DATE: January 18, 2013