CITATION: R. v. Arviko, 2013 ONSC 5327
COURT FILE NO.: 12-70000839-0000
DATE: 20130816
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
SAMSON ARVIKO, PETER ARVIKO and CHRISTOPHER THOMPSON Applicants
AND BETWEEN:
HER MAJESTY THE QUEEN Respondent
- and -
SAMSON ARVIKO, HASAN MOHAMMED CUMOR and RUKIYO OMAR Applicants
AND BETWEEN:
HER MAJESTY THE QUEEN Respondent
- and –
SAMSON ARVIKO, JORDAN BROWN, SHAUN FALLS, and SEAN JACKSON Applicants
AND BETWEEN:
HER MAJESTY THE QUEEN Respondent
- and –
SAMSON ARVIKO, ADRIENNE RACHEL FAYTER, ROBERT MEYER, SHELDON PATTERSON and MARCUS SANDFORD Applicants
Barb Glendinning, Elizabeth Jackson and John Pollard, for the Crown
Robert Richardson, Maija Martin and Shaunna Kelly, for the Applicants
Court File No.: 12-70000832-0000 Barb Glendinning, Elizabeth Jackson and John Pollard, for the Crown Robert Richardson, Maija Martin and Shaunna Kelly, for the Applicants
Court File No.: 12-70000518-0000 Barb Glendinning, Elizabeth Jackson and John Pollard, for the Crown Robert Richardson, Maija Martin and Shaunna Kelly, for the Applicants
Court File No.: 12-50000313-0000 Barb Glendinning, Elizabeth Jackson and John Pollard, for the Crown Robert Richardson, Maija Martin and Shaunna Kelly, for the Applicants
HEARD: June 3, 4, 17, 19 and 20, 2013
R E A S O N S F O R D E C I S I O N
R. CLARK J.:
INTRODUCTION
[1] In 2009 and 2010, after an extensive police investigation called “Project O.B.”, numerous persons were charged with firearms and drug offences. As well as employing other investigative techniques, pursuant to judicial authorizations granted on January 14 and March 15, 2010, the police intercepted the private communications of many of the persons they were investigating, including the accused before the court.
[2] Some of the original arrested persons have resolved their charges, but 11 accused are still before the court, charged in four separate indictments. Pursuant to s. 551.7 of the Criminal Code, R.S.C. 1985, c. C-46, by order of Then R.S.J. dated May 21, 2013, I have been designated as the joint hearing judge for the purpose of determining the admissibility, at all four trials, of the aforementioned intercepted communications. What follows are my reasons for decision on (i) an application for leave to cross-examine Det. Travis Clark of the Toronto Police Service, the affiant of the first Information to Obtain (“ITO”), and certain sub-affiants and (ii) an application to exclude the interceptions the Crown intends to proffer at trial.
DISCLOSURE
[3] Before considering the applications, I wish to discuss certain matters surrounding disclosure of the packet materials in this case.
[4] In drafting the ITO respecting the first authorization, the affiant, Det. Clark, relied extensively on information from 16 “confidential sources”, or what are more commonly referred to as confidential informants (“CIs”). In some cases, this information was related to him directly by the CI’s police handler, while in others, he received the information indirectly through fellow investigators who had spoken to the handlers.
[5] This application was initially complicated by virtue of the manner in which the affiant chose to describe the antecedents and the reliability of each of the CIs combined with the manner in which the Crown chose to disclose information provided by CIs. The Crown disclosed this information in what I will call the “edited ITO.”[^1]
[6] Respecting the antecedents of each of the CIs, the affiant set out in the ITO: (a) whether the CI had a criminal record; (b) whether s/he had ever been known to provide false or misleading information; (c) his/her motivations for assisting the police (at least as the police understood them); (d) the number of times s/he had provided information in the past; (e) the nature and amount of contraband seized as a result of his/her information; and (f) the number of arrests and successful prosecutions predicated on his/her information.
[7] Respecting the information the CI provided in relation to this investigation, the affiant articulated, in relation to various relevant topics, the information that each CI gave in that behalf. The affiant then went on to articulate whether or not the information was corroborated by other independent evidence.
[8] As for the manner of disclosure, when it came time to disclose the contents of the packet, in order to protect the identity of the CIs, instead of simply redacting sensitive information from the ITO and disclosing the remainder, the prosecutors chose to delete entirely many of the ITO’s original paragraphs and insert in their stead new paragraphs that formed no part of the ITO that was put before the issuing justice. The object of the exercise, according to the prosecutors, was to convey the maximum amount of information, but to do so in a way that would not tend to narrow the pool of possible sources of that information. The prosecutors were, of course, perfectly open about what they had done and why. They sought to justify this approach on the basis that to disclose a redacted version of the original ITO would have required them to redact so heavily that the applicants would have obtained vastly less information than they in fact received in the edited ITO.
[9] In these new paragraphs, where information on a given topic in relation to a particular target was forthcoming from more than one CI, the information from individual CIs was comingled so as to present a composite account of the totality of the information the CIs had individually imparted to the police. In other words, the information is attributed to the CIs collectively, with no attribution of individual facts to any particular CI.
[10] Moreover, the new paragraphs created by the prosecutors do not identify the CIs by the numbers the affiant attributed to them in the original ITO. Instead, the reader is told, respecting any particular paragraph, (i) that a certain number of CIs (but not which ones) contributed information that led, when looked at collectively, to the assertion(s) stated in that paragraph and (ii) the number of CIs who had earlier been proven reliable and the number who had not been so proven. In the result, the reader has no way to discern which CI provided which part of the information that led to a particular assertion being made.
[11] On June 4, 2013, I indicated to counsel that I was not prepared to rule on the application for leave to cross-examine because the document before me was not the document the issuing judge had considered. I felt it was impossible to assess the degree, if any, to which, when assessing the contents of the document, the issuing justice might have been misled by the ITO that was actually before him. After giving counsel some time to discuss the matter, counsel for the applicants sought disclosure of a redacted version of the actual ITO and the Crown agreed to provide a redacted version of the ITO, as opposed to what I have referred to as the “edited ITO.”
[12] On June 11, 2013, I was advised that the respondent had disclosed a redacted version (“the redacted ITO”) to the applicants. An electronic copy was hand delivered to the court along with an electronic copy of the original ITO that was before the issuing justice, unredacted.[^2] I was advised by Ms. Glendinning, in the covering letter that accompanied the aforementioned copies, that the applicants had made it known to the respondent that they would seek to have the court provide a judicial summary of the material redacted from the original affidavit.
[13] On June 17 and 19, 2013, I heard further submissions concerning the redacted ITO.
[14] On June 19, 2013, the Crown provided the court with a 101-page table of concordance relating the new paragraphs of the edited ITO to the paragraphs supporting them in the original ITO.[^3]
[15] Once having read the original, unredacted ITO, and having compared it with the redacted ITO, I understood, except for a handful of redactions, why the Crown had redacted what it had. With one exception, to which I will momentarily turn, the redactions about which I had some concerns were discussed in open court, albeit in language that was deliberately very oblique. By and large, after hearing from the Crown, I accepted their rationale for redacting the information in question. On several occasions, the Crown accepted the court’s view that disclosure would be harmless and agreed to disclose the information in question.
[16] Only one issue was not discussed in open court. It concerned the redaction of the entirety of paragraph 45 of the original ITO. In respect of that paragraph, in keeping with the procedures discussed in R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, and Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, I conducted, on consent, a very brief hearing in camera and ex parte. After that hearing, I was satisfied that disclosure of the information discussed would tend to narrow the pool of possible sources. More importantly, for purposes of this discussion, I was satisfied that the entirety of the information contained in that paragraph was disclosed elsewhere in the edited ITO. Upon their return to court, at the conclusion of the hearing, I gave the applicants a brief oral summary of what had transpired in their absence. I ordered that the ex parte proceedings be transcribed, but that the transcript be sealed.[^4]
[17] Speaking of the edited ITO as a whole, suffice it to say that I accept that the information withheld could, if disclosed, tend to narrow the pool of possible sources of that information. I also agree with the Crown that the edited ITO gives far more information than the redacted ITO. Further, I found that the edited ITO is a fair and comprehensive summary of the information redacted from the original ITO. Accordingly, on June 19, I adopted the edited ITO as the court’s judicial summary for purposes of step two of the procedure set out in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, at pp. 1460-61.
I. APPLICATION FOR LEAVE TO CROSS-EXAMINE
[18] Before dealing with the merits of the application for leave to cross-examine the affiant and sub-affiants, I wish to first note a number of aspects of the initial application that have since been abandoned.
[19] As enumerated in their joint notice of application, the applicants initially sought leave to cross-examine the affiant, Det. Clark, on 21 separate heads of inquiry and the sub-affiant, Det. Ferguson, on five. They also sought leave to cross-examine each of 10 informant handlers on one or more of six different heads of inquiry. On June 3, 2013, however, at the outset of oral argument, on behalf of all the applicants, Ms. Martin indicated that the applicants no longer wished to cross-examine the affiant, Det. Clark, on the subjects enumerated at subparagraphs 125(h), (j), (k), (m), or (o) to (u), inclusive, of the applicants’ factum;[^5] and no longer wished to cross-examine the sub-affiant, Det. Ferguson, at all.
[20] Ms. Martin made clear, however, that the applicants still wished to cross-examine both the affiant and the sub-affiant/informant handlers. It is to those issues that I now turn.
POSITION OF THE APPLICANTS
[21] In terms of the remaining aspects of their application to cross-examine, the applicants argue that there is a reasonable likelihood that the proposed cross-examination will reveal evidence that will tend to discredit the existence of reasonable and probable grounds for issuance of the initial authorization. The applicants point out that the information from the numerous CIs, as revealed in the affidavit, is profoundly devoid of detail. When combined with the considerable extent to which the affiant relied on the CI information, that lack of detail is such, Ms. Martin asserts, that it is impossible to know whether the information before the authorizing justice was reliable or, in the alternative, whether it amounted to anything more than mere suspicion.
[22] More specifically, the applicants assert that because the information provided is not attributed to the particular CIs by whom it was provided they cannot know, in the case of any particular piece of information, whether it was provided by a CI who has been proven reliable or an untested CI.
[23] The combined effect of these shortcomings is such as to prevent the applicants from adequately testing the adequacy of the material that was before the issuing justice. That being the case, the applicants contend, they cannot make full answer and defence.
POSITION OF THE RESPONDENT
[24] The respondent opposes the application on five grounds.
[25] First, the respondent argues that the applicants have not met their onus of adducing an evidentiary foundation from which the court can be satisfied that the proposed cross-examination is likely to reveal information that would cast doubt on the existence of the only statutory precondition at issue in this case, namely, whether grounds existed upon which to reasonably believe that the interception of the applicants’ communications would likely afford evidence of the crimes being investigated.
[26] Second, the respondent contends that the application goes far beyond the scope of permissible cross-examination and amounts to an attempt on the part of the applicants to discover the affiant and sub-affiants, in an effort to better position themselves to defend the trial.
[27] Third, the proposed cross-examinations seek information that, at least in part, was specifically refused on a disclosure application the applicants brought before Garton J. in February of this year.
[28] Fourth, the proposed cross-examinations are problematic because, if permitted, they would breach informant privilege. In that behalf, the respondent notes that it has made extensive disclosure in this case and, in so doing, has disclosed everything it can safely disclose without narrowing the pool of possible of sources to an impermissible degree.
[29] Fifth, the heads under which the applicants seek to cross-examine are subjects more properly dealt with in the Garofoli application itself and, in sum, amount to nothing more than the proverbial “fishing expedition.”
DISCUSSION
General Principles
[30] It is trite to observe that, for purposes of s. 8 of the Canadian Charter of Rights and Freedoms, the electronic interception of private telecommunications constitutes a search. As such, in seeking relief pursuant to s. 24 of the Charter, it is for the applicant to establish that his right to be free from unreasonable search and seizure has been infringed. Although the interception may have been judicially authorized, there will be a breach where one of the statutory preconditions for that authorization was absent: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 8.
[31] It is well settled, on an application of this sort, that “cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted”: Garofoli, at p. 1465; see also Pires, at para. 65; and R. v. Ambrose (1994), 1994 1378 (ON CA), 73 O.A.C. 135 (C.A.), at para. 6.
[32] It is also clear that “[a] basis must be shown by the accused for the view that cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds”: Garofoli, at p. 1465. It is not sufficient to show that the cross-examination might elicit such evidence: R. v. Washington (1997), 1997 3968 (ON CA), 104 O.A.C. 210 (C.A.), at para. 11.
[33] As stated in R. v. Land (1990), 1990 10969 (ON SC), 55 C.C.C. (3d) 382 (Ont. H.C.J.), at p. 417, the cross-examination must relate to “a matter of such significance as to be likely to influence the determination of the dual conditions precedent of probable cause and investigative necessity or to alter the character of the supportive affidavit. The essence of the materiality requirement, in other words, is the nexus which the applicant must demonstrate between the facts which were or not wrongly disclosed and the dual requirements of probable cause and investigative necessity” (emphasis in original). That statement was recently adopted by the Court of Appeal for Ontario in R. v. Nguyen, 2011 ONCA 465, 273 C.C.C. (3d) 37, where, speaking for the court, Blair J.A. stated, at para. 51, “‘Materiality’ is something that bears on the merits or substance of the application rather than on its form or some other inconsequential matter.”
[34] It is also well established that, while the applicant bears an evidentiary burden, it is not an onerous one. As Charron J. stated in Pires, at para. 40:
[I]f the proposed cross-examination falls within the narrow confines of this review, it is not necessary for the defence to go further and demonstrate that cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization. Such a strict standard was rejected in Garofoli. A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown.
The Case At Bar
Fraud, misleading disclosure and non-disclosure
[35] The applicants state in their factum that cross-examination ought to be permitted if there is reason to believe that there has been fraud, misleading disclosure or non-disclosure on the part of an affiant. They further point out that the test for permitting cross-examination is not a stringent one and, thus, it is not necessary for them to show definitively that there has been fraud, misleading disclosure or non-disclosure in order to warrant granting leave. While I accept those statements as correct, surely there must be some suggestion of the existence of one or more of the offending conditions, or the granting of leave would become a mere formality in every case. The applicants do not, however, actually go so far as to suggest that there has, in fact, been fraud, misleading disclosure or non-disclosure in this case. That said, I do not consider it appropriate to grant leave to cross-examine on this basis.
Cross-examination discrediting the existence of a statutory precondition
[36] There is no assertion that the statutory precondition of investigative necessity was not met. Rather, it is conceded that it was reasonable to suspect that the enumerated offences were being committed.
[37] The applicants assert, however, that there were no reasonable and probable grounds to believe that the applicants were involved in these offences and, by extension, no reasonable and probable grounds to believe that interception of the applicants’ private communications would provide evidence of the offences. On the basis of those contentions, the applicants argue that cross-examination should be permitted because it will elicit testimony tending to discredit the existence of this statutory precondition.
[38] Either the material demonstrated, on its face, a reasonable basis for the requisite belief or it did not. Absent some specific indication of fraud, misleading disclosure or significant non-disclosure, none of which is alleged (and which I have already dealt with above), I fail to see how cross-examination will assist this court to conclude that what was before the issuing justice was insufficient. Accordingly, cross-examination is not warranted on this basis.
Necessity of Cross-examination of Affiant
[39] The applicants submit that they should be entitled to cross-examine the affiant, Det. Clark, because “the information presented shows at best a tenuous connection between people who may have some connection to each other or (possibly) some criminal activity”: Applicants’ Factum, at para. 63. The applicants go further to assert that “[t]here is absolutely no information presented regarding any collaboration between Samson Arviko and Christopher Alexander to illegally traffic in arms”: ibid. Cross-examination of the affiant is not warranted on the basis of these arguments.
[40] On the one hand, cross-examination might reveal the very sort of connections that the applicants say are missing. On the other hand, even if the applicants are correct in their assertion that the information in the affidavit does not reveal anything more than a tenuous connection, that is a matter going to the merits of the Garofoli application. Once again, the material before the issuing justice was, on its face, either sufficient or it was not. Cross-examination of the affiant at this point, even if it were to reveal ex post facto that certain things could not have been established before the issuing justice, will not assist this court to determine whether the authorization should have been granted based on what actually was before the justice.
[41] In their factum, the applicants argue that the information before the issuing justice amounted to nothing more than suspicion, and “the request for an authorization was nothing more than an attempt to elicit evidence to corroborate their suspicion, rather than being evidence of reasonable and probable grounds”: ibid at para. 64. I disagree for the following reasons.
[42] The handguns in question were sold retail in the United States and wound up in Canada. There is, in all the circumstances, no other reasonable conclusion than that they were brought into the country by means of some individual(s) committing one or more of the enumerated offences. I do not understand the applicants to take issue with that notion; so there were, in the least, reasonable and probable grounds to believe that the offences were being committed by someone. The question becomes: by whom?
[43] As noted above, the thrust of the applicants’ argument is that there were no reasonable and probable grounds for the affiant’s proposition that the applicants were involved in smuggling the guns into Canada.
[44] The applicants take issue with the affiant’s assertion that there was a long-standing criminal relationship between Christopher Alexander and Samson Arviko. The applicants argue that the evidence all points to a very dated relationship and that there was nothing upon which to properly ground the assertion that the relationship was ongoing at the time the ITO was sworn. There was, however, evidence showing, not only that the two men had known each other for a long time, but also recent and very frequent telephone communications between them. Therefore, it is not fair for the applicants to suggest that all the affiant had shown was a dated relationship.
[45] Furthermore, while there is no evidence of joint criminality between Samson Arviko and Alexander, there is evidence that each man has a connection to illegal firearms. In the case of Arviko, there is the evidence of his 2005 conviction for possession of a prohibited weapon, to wit: a handgun. In the case of Alexander, it has been conceded that there is evidence linking him to two of the firearms purchased in Florida and smuggled into Canada.
[46] I appreciate that a court can grant leave to cross-examine where, based on information that was either misleading or withheld, there is reason to suspect that the integrity of what remains of the affidavit, once any offending material has been excised, may be compromised. Here, however, nothing in the applicants’ arguments causes me to suspect that the affiant was less than fully forthright with the issuing justice so as to warrant granting leave to cross-examine on this basis.
[47] It must also be borne in mind that the law does not require that there be reasonable and probable grounds to believe that a person whose private communications the police propose to intercept is himself involved in the crime(s) under investigation. Rather, it is now well settled that the requirements of s. 186(1) of the Criminal Code need not be met “‘target’ by ‘target’”: R. v. Mahal, 2012 ONCA 673, 113 O.R. (3d) 209, at para. 49, leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 496, citing R. v. Pham, 2002 BCCA 247, 165 C.C.C. (3d) 97, at para. 86, and R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 29. All that is required is that there be reasonable and probable grounds to believe that a person’s communications may afford evidence of the offence(s) under investigation: Mahal, at para. 55. In my view, there was ample evidence before the issuing justice in this case upon which he could reasonably have been satisfied that the interception of the communications of those persons who were subject to the authorization might afford evidence of the crimes being investigated.
[48] The applicants assert that cross-examination will enable them to reveal that the affiant did not do enough to confirm the veracity of the information forthcoming from the CIs. The applicants go on to assert that cross-examination might serve to discredit the information and, indeed, to demonstrate that the affiant knew, or ought to have known, that the information forming the grounds for his affidavit was unreliable. This submission is conclusory. There is no evidence before me (and, with respect, no cogent submission upon which to rest the suggestion) that the affiant knew or ought to have known that the information upon which he chose to rely was less than reliable. As I have earlier indicated, it is well settled that, while the test is not stringent, there is an onus on the applicant in such an application to demonstrate why cross-examination should be permitted. With respect, the applicants have failed to demonstrate that there is any prospect that cross-examination would reveal any of the shortcomings they contend exist.
Specific Complaints
[49] The applicants argue several specific grounds upon which they seek to cross-examine Det. Clark.
Affiant relied on evidence of charges that were dismissed or never laid
[50] The applicants submit that the affiant relied, as a basis upon which to establish a connection between Christopher Alexander and Samson Arviko, on information pertaining to charges that either were never laid or, if laid, were later dismissed. Several points are apposite.
[51] First, it is trite to observe that an affiant is obliged to make full, fair and frank disclosure. That requirement has led, over the years, to a tendency on the part of affiants to include more information than necessary. In this case, it seems to me that the affiant was being careful to include all information within his knowledge showing a connection between the two men. Surely, he cannot be faulted for that.
[52] Second, to the extent that charges were never laid or, if laid, were later dismissed, neither the immediate nor, where charges were laid, the longer-term legal result of the encounter of the men with the police is relevant. At paragraph 75 of their factum, the applicants assert that occurrence reports relied upon by the affiant do not “show an association between Mr. [Samson] Arviko and Mr. Alexander.” They then go on to articulate various aspects of the information relied upon by the affiant and argue that the information “does not corroborate the confidential informant information of a current criminal relationship between Mr. Arviko and Mr. Alexander”: ibid. What is important, however, is not whether the information proves a criminal relationship between the two men, but, rather, that the information demonstrates a relationship or connection between the men. As I have earlier said, Mahal confirms that it is not necessary to demonstrate that a particular person is involved in the criminal offence(s) under investigation in order to show that interception of his private communications may assist in the investigation of the offence(s). This affidavit is simply an example of that principle in operation. Moreover, as the Crown points out, this was not the sole basis upon which the affiant was asking the issuing judge to conclude that interception of Alexander’s communications would assist in the investigation.
No evidence to support the claim Alexander and Arviko were jointly involved in arms trafficking
[53] The applicants contend that there was no evidence to support the affiant’s assertion that Arviko and Alexander were jointly involved in firearms trafficking. I disagree that that is what the affiant was endeavouring to demonstrate or required to demonstrate. There is evidence (i) that Arviko has an association with firearms; (ii) that Alexander was involved in receiving firearms that were brought into Canada by the Assoon brothers; and (iii) that the two men were in communication with one another around the time that the firearms were coming into Canada. That is sufficient to support a reasonable conclusion that interception of their communications might reveal evidence of the crimes under investigation.
Evidence of Alexander’s Involvement in Firearms Trafficking was Overstated
[54] The applicants argued in their written materials that the affiant overstated Alexander’s involvement in firearms trafficking. In particular, they took issue with the affiant’s statement that the firearm found at the scene of the shooting at 105 Humber Blvd. had been possessed by Alexander. Further, although the applicants acknowledged that the firearm found at the scene of the shooting incident at 105 Humber Blvd. was purchased in Florida by Ryan Whitney, they contended that there was no evidence to connect Alexander to that firearm. On the hearing of this application, however, Ms. Martin conceded on behalf of the applicants that there was an evidentiary basis upon which the affiant could fairly make that statement. I agree. Inasmuch there is eyewitness evidence connecting Alexander to the shooting, and the firearm was recovered nearby the scene of the shooting shortly afterward, it is reasonable to conclude that that firearm was used in the shooting and that Alexander was in possession of this firearm.
Summary of Evidence as it Relates to the Affiant’s Claims
[55] On the evidence as a whole, I am satisfied that there was a basis upon which to reasonably conclude that interception of the applicants’ private communications would assist in the investigation.
Cross-examination of Sub-affiants
(i) Failure to name the police services employing the Informant Handlers
[56] The investigation involved three police services in southern Ontario. In both the edited ITO and the redacted ITO, the respondent deleted the names of the CI handlers and the names of the police services by which each is employed. The Crown claims that knowing the police service in which a particular handler is employed will have a tendency to identify the CI. That is so, the Crown claims, because two of the police services are much smaller than the third.
[57] I have some difficulty accepting that merely knowing the jurisdiction in which the handler works could reduce the pool of possible people who could have provided the information in question. However, not knowing the investigation in the way the investigators and prosecutors do, I am not prepared to say categorically that this knowledge could not reduce the pool for the cognoscenti. Obviously, if there is any possibility at all that this knowledge could reduce the pool, then it is not appropriate to disclose it. What, then, is the downside of not disclosing the information? As I see it, there is absolutely no utility to the defence in knowing the police service by which the handler is employed and, by extension, I fail to see how this information could assist the court to decide that what was put before the issuing justice was insufficient to warrant granting the authorization. Accordingly, cross-examination is not warranted on this basis.
(ii) Necessity of cross-examination of Informant Handlers
[58] Irrespective of the question of by whom they are employed, is cross-examination of the handlers necessary for the applicants to make full answer and defence?
[59] The applicants submit, and the respondent does not deny, that the CI handlers are all sub-affiants within the meaning of the authorities. That said, cross-examination is necessary, the applicants contend, because, as noted above, by summarizing in the way it did the information the CIs imparted to their respective handlers, the respondent rendered the affidavit “facially invalid”: Applicants’ Factum, at para. 93. Absent an opportunity to cross-examine the handlers, there is, so the applicants assert, “no plausible way to assess the reliability of the information”: ibid at para. 69. Two points are apposite.
[60] First, as indicated above, I ordered the further disclosure of the original affidavit, redacted as necessary.
[61] Second, what is important in this context is not the degree to which the information can, with the benefit of hindsight, be seen to have been reliable, but, rather, as noted above, the degree to which the affiant could responsibly have taken the information to be sufficiently credible to act upon it to seek an authorization. That said, while the reliability of the information as evident to the affiant, as the recipient of the information in question, may be important on the Garofoli hearing, I fail to see how an ex post facto inquiry of the handlers as to whether the information was in fact reliable can be germane to the decision whether the affiant ought to have relied upon it at the time he applied for the authorization.
[62] The applicants complain that the information presented “includes broad conclusory assertions on [sic] criminal activity”: ibid at para. 70. Assuming, without deciding, that to be correct, inasmuch as that is apparent on the face of the affidavit, cross-examination will add nothing. Moreover, any conclusory statements are those of the principal affiant, not the sub-affiants, such that cross-examination of the sub-affiants will not assist the applicants.
[63] The applicants complain that there is a lack of corroboration of the information relied upon by the affiant and, in turn, the issuing justice. That is a matter for the Garofoli application. Cross-examination of the sub-affiants cannot assist the applicants.
[64] The applicants also want to cross-examine the CI handlers to ascertain whether certain “informant protocols” were observed. There is no evidence before me as to the existence or nature of any such protocols. Furthermore, there is no concrete suggestion made by the applicants as to the manner in which such protocols as may exist may have been breached or, if so, what the likely affect may have been on the reliability of the information that was placed before the issuing justice. I view this, with respect, as nothing more than the proverbial “fishing expedition”.
Evidentiary Basis of the Application
[65] The applicants rely entirely on the disclosed version of the first affidavit to establish the required foundation. They put no additional information before the court.
[66] The applicants argue that much of the information relied upon by the affiant has not been adequately confirmed. While that may be the subject of argument on the Garofoli application, I do not see it as germane on this application. As stated in Pires, at para. 41, “cross-examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false.” In this case, there is nothing before me to demonstrate that the proposed cross-examination is likely to elicit evidence that any of the information in the ITO was false. Nor, by obvious extension, is there any evidence before me that the affiant knew or ought to have known that any of the information he was relying on was false. Indeed, as noted earlier, the applicants do not go so far as to say that the affiant knowingly engaged in any fraud.
RESULT
[67] In the result, I agree with the respondent that no proper basis has been shown that the proposed cross-examinations will elicit evidence likely to cast doubt on the existence of reasonable and probable grounds to issue the authorization. Inasmuch as the alleged shortcomings are entirely conjectural, I refused leave to cross-examine the affiant and sub-affiants.
II. “GAROFOLI” APPLICATION
POSITION OF THE APPLICANTS
[68] The applicants seek to have the court exclude the evidence of the intercepted communications of their clients on the basis that the original ITO failed to disclose reasonable and probable grounds to believe that the interception of those communications would be likely to provide evidence of the offences under investigation.
POSITION OF THE RESPONDENT
[69] The respondent argues that the redacted ITO and the judicial summary (consisting, as earlier noted, of the edited ITO) taken together, constitute a sufficient basis upon which the authorization could have issued, such that the application should be dismissed.
PROCEDURAL ASPECTS OF THE APPLICATION
[70] After hearing argument on this application, I concluded that the redacted ITO and the contents of the judicial summary, taken together, were a sufficient basis for a reasonable belief that interception of the applicants’ private communications would be likely assist the investigation. In the course of the discussion that led to that ruling, I indicated that I was content to decide the matter without “resorting to step 6.”
[71] The verb “edit” is defined in the Concise Oxford English Dictionary 10th Ed., (Oxford, 1999, Oxford University Press), as “prepare (written material) for publication by correcting, condensing, or otherwise modifying it” (emphasis added). In other words, although, in the context of disclosure in criminal matters, “edit” is frequently equated with the verb “redact”, the two verbs are not necessarily co-extensive. Against that backdrop, in attempting to follow the Garofoli procedure, I was of the view, initially at least, that, as well as referring to that which remains in the redacted ITO, Sopinka J.’s use, in Step 5, of the phrase, “the material as edited”, also envisions a substantive consideration by the reviewing justice of the contents of the judicial summary.
[72] As I perceived the submissions of counsel on this application, all counsel appeared to approach the argument on this basis; that is to say, counsel expected that the court would, at step 5, take account of both the redacted affidavit and the contents of the judicial summary. I rely for that conclusion on the arguments of counsel generally and, more particularly, on the following remarks, reproduced from the proceedings on June 20, 2013, at the end of the oral submissions on this application:
The Court: So, I take it that the Crown suggests that the redacted affidavit together with the summary that was provided is sufficient to support the authorization as something that could have properly issued, without resort to step 6. Is that…
Ms. Jackson: That’s correct.
The Court: All right. So, does anybody have any further input that they want to make at this stage of this before we – if we get there – before resort to step 6? Anybody have any – have I heard all the submissions that anybody has to make here? Yes?
Ms. Martin: I don’t have any further submissions.
Ms. Kelly: No further submissions.
Inasmuch as Mr. Richardson did not respond orally to the court’s enquiry, I took his silence for concurrence with the position as expressed by other counsel.
[73] In light of what appeared to me to be consensus as to the approach I had articulated, and bearing in mind Sopinka J.’s caveat in Garofoli, at p. 1460, that the procedure he suggested was “not intended to be exclusive or exhaustive”, I then based my assessment on the material in both the redacted ITO and the judicial summary and held that it was not necessary to resort to step 6 of Garofoli. Upon reflecting further, however, on the language used by Sopinka J. in describing the nature of step 6, it occurred to me that substantive consideration by the reviewing justice of the contents of a judicial summary may, indeed, amount to the analysis contemplated at step 6 of the Garofoli procedure. Out of an abundance of caution, in order to ensure that they were content that their clients had been afforded the benefit of all procedures to which they were properly entitled, on June 25, 2013, I wrote to all counsel indicating that, if anyone wished to make further submissions concerning the procedure followed, I would be prepared to entertain them. All counsel have since indicated that they were content not to have further input on that issue.[^6]
[74] I also note, at this juncture, that counsel at no point made any submission that the materials as disclosed were deficient in terms of enabling them to argue the sufficiency of what was before the issuing justice. Rather, the only complaint from counsel was that the materials were not sufficient to permit the issuing justice to authorize interception of their clients’ communications.
DISCUSSION
[75] To begin, it is trite to observe, but nonetheless important to bear in mind, that in deciding these issues, I am not entitled to substitute my opinion for that of the issuing justice.
[76] As noted above, the applicants assert that the essential precondition that there be reasonable grounds to believe that interception of their private communications would afford evidence of the crimes being investigated was not made out on the basis of the materials disclosed. On June 19, 2013, however, Ms. Martin conceded on behalf of the applicants that there were reasonable grounds to believe that the interception of Christopher Alexander’s communications would afford evidence of the crimes being investigated. It is still vigorously contested, however, that there were grounds to intercept either of the Arviko brothers’ communications.
Reliance on Information Provided by Confidential Informants
[77] In light of the fact that the affiant relied heavily on information from the numerous CIs involved in this investigation, I wish to begin by discussing the applicants’ complaint that the CIs utilized in this case have not been shown to be reliable.
[78] The reliability of information from a CI is to be assessed against the totality of the circumstances. Those circumstances include the degree to which the information provided by a CI is corroborated. Just as independent evidence arising from other police investigation can be corroborative, corroboration can also be found in information forthcoming from other CIs: R. v. Abdul-Hamid, 2013 ONSC 1744, [2013] O.J. No. 1328, at paras. 48-50.
[79] As earlier noted, in this case a number of the CIs were unproven. This begs the question of the extent, if any, to which it is reasonable to rely on information provided by such a source.
[80] In R. v. Clow, 2012 ABQB 656, 273 C.R.R. (2d) 178, aff’d 2008 SCC 65, [2008] 3 S.C.R. 451, Martin J. held, at para. 41:
A key concern is whether CI information, especially information provided by potentially unreliable sources such as first time CIs, is corroborated by other sources of information. Doherty J.A. of the Ontario Court of Appeal stated at para. 19 of R. v. Lewis (1998), 1998 7116 (ON CA), 122 C.C.C. (3d) 481, 38 O.R. (3d) 540:
Absent confirmation of details other than details which describe innocent and commonplace conduct, information supplied by an untested, anonymous informant cannot, standing alone, provide reasonable grounds for an arrest or search.
[81] In R. v. Caissey, 2007 ABCA 380, 227 C.C.C. (3d) 322, the majority held, at para. 16:
On a review that challenges the validity of a search warrant, it may be necessary to inquire into the source and quality of the information provided to the police at the time of the search in order to establish that there were reasonable and probable grounds for the search. Mere conclusory statements by an informant are insufficient to constitute reasonable and probable belief.
[82] The court in Caissey was divided, however, on the extent to which corroborating evidence must substantiate CI information. At paragraphs 22 and 23, the majority held:
Reliability of an informant may be established by past performance as an informant or by confirmation from other investigative sources of part, or all, of the information provided by the informant. ...
The issue on review is whether there was some evidence that might reasonably be believed to support the issuance of the warrant, not whether there is some guarantee that the informant is telling the truth when he makes the allegation of criminal activity. Information of a crime itself being committed does not have to be confirmed. I agree with the comments of Doherty J.A. in R. v. Lewis (1998), 1998 7116 (ON CA), 38 O.R. (3d) 540, 122 C.C.C. (3d) 481 at para. 22:
In concluding that the totality of the circumstances did not provide reasonable grounds for an arrest, I do not suggest that there must be confirmation of the very criminality of the information given by the tipster. The totality of the circumstances approach is inconsistent with elevating one circumstance to an essential prerequisite to the existence of reasonable grounds.
In dissent, Martin J.A. held, at para. 36, that corroborating evidence must establish that the accused was committing an offence, unless the informant’s credibility was established by other means. On appeal, the Supreme Court of Canada adopted the majority holding: 2008 SCC 65, [2008] 3 S.C.R. 451.
[83] In this case, I am satisfied that, to the extent that the affiant relied on information forthcoming from CIs who had not previously been proven reliable, the information they supplied was buttressed by evidence from other CIs who had been proven reliable as well as by other independent evidence.
Proposed Excisions from the Affidavit – Matters Subsequently Conceded by the Applicants
[84] In their factum, the applicants sought to have the court excise certain information as unreliable and certain statements as misleading. In the case of the impugned statements, the applicants asserted that there was no sufficient evidentiary underpinning for them, such that they amounted to mere speculation.
On June 19, 2013, however, on behalf of the applicants, Ms. Martin, in oral argument, specifically abandoned several of the applicants’ complaints in that behalf, namely, those concerning:
(i) the affiant’s references to a firearm recovered at 357 Ridley Gardens; (ii) the affiant’s references to Christopher Alexander being in possession of the firearm recovered nearby 105 Humber Blvd., shortly after a shooting incident at that location; (iii) the affiant’s statement that the telephone number discovered in Alexander’s telephone can be attributed to Melanie Pereira; and (iv) the affiant’s reliance on evidence from the “Finder’s Reports” provided by American law enforcement.
In light of those concessions, I will say nothing further on those points.
Proposed Excisions from the Affidavit – Matters Still Contested
[85] In their factum, as reiterated in oral submissions, the applicants seek to have the court excise the following parts of the affidavit before the authorizing justice because they are either erroneous or misleading. The applicants submit that, once the offending material is excised, what remains would not have constituted reasonable and probable grounds upon which the issuing justice could have properly granted the authorization. In order to succeed with an argument that a statement should be excised, the applicants must show that there was no proper material upon which the affiant could have reasonably made the statement or, in turn, the issuing justice could have relied upon it.
(i) Long-Standing Criminal Relationship between Alexander and Samson Arviko
[86] The applicants complain that the affiant’s statement to the effect that Christopher Alexander and Samson Arviko have a long-standing criminal relationship is unsupported in the evidence. At the highest, the applicants suggest, the evidence supports nothing more than the proposition that they had a relationship once upon a time.
[87] For its contention that the relationship was current as of the time of the application, the Crown relies upon 20 telephone calls in late 2010, around the times that Alexander is alleged to have been in possession of two of the smuggled guns, between a telephone registered to Alexander and a telephone registered to Samson Arviko’s girlfriend, Nicole Cuzzi. These calls do not assist the prosecutor, so the applicants contend, because there is no proof that Cuzzi’s telephone was being used by Samson Arviko. I disagree.
[88] As set out in subparagraph 71(iii) of the edited ITO, although s/he did not specifically name Nicole Cuzzi, a CI, in late 2009, “advised police that Samson Arviko had resorted to using his girlfriend’s phone.” One CI, albeit an unproven source, identified Nicole Cuzzi’s telephone number as (226) 868-5266.
[89] Contrary, then, to the applicants’ assertion that the ITO shows only a relationship at a time long in the past, it is clear to me that there was a basis on the information available to the affiant upon which to reasonably assert that the men have a long-standing relationship.
[90] As for the assertion that the relationship was criminal in nature, there is evidence in the ITO: (i) that the men have been investigated together before in relation to criminal activity; (ii) that demonstrates a close nexus in time between their recent telephone contacts and the points in time at which there are grounds to believe that Alexander was in possession of two of the smuggled weapons; and (iii) that Arviko has a criminal conviction for possession of a firearm.
[91] As well as the foregoing points, the edited ITO also contains, although it is ill-defined and conclusory in nature, and thus entitled to virtually no weight, mention that a CI stated that Alexander and Samson Arviko were involved in “a criminal relationship”: edited ITO, at para. 71(v).
[92] In addition, the applicants argue there was no basis for the affiant’s statement, found at paragraph 157 of the edited ITO, “I believe that Alexander traffics in firearms with Samson Arviko.”
[93] In relation to Samson Arviko’s involvement with firearms, the edited ITO makes mention of: (i) one CI, who indicated that “G” and Samson Arviko have a “criminal relationship … that involved a firearm”: edited ITO, at para. 71;[^7] (ii) ten CIs, of whom three were unproven, who provided information over a period beginning in the latter half of 2009 until the early part of 2011, “relating to Samson Arviko’s involvement with firearms”: ibid at para. 72; (iii) although none of them reported having actually seen a firearm, five CIs who reported having “heard Samson Arviko possessed a firearm”, two of whom heard it directly from Samson Arviko himself: ibid; (iv) four CIs, two of whom were unproven, who reported having seen Samson Arviko in possession of one or more firearms; (v) three CIs, one of whom was unproven, who reported, during the latter half of 2009 and 2010, having heard that Samson Arviko had an ability to access firearms, and one of whom reported, in the latter half of 2009, that Samson Arviko’s “crew” had access to firearms: ibid; (vi) three CIs, two of whom were unproven, who advised police, during the latter half of 2010 and early 2011, that Samson Arviko had firearms for sale; and (vii) five CIs, two of whom were unproven, who gave details of Samson Arviko having firearms while in his own vehicle or while in a vehicle he was using.
[94] In light of the foregoing evidence, it was not unreasonable to conclude that both Christopher Alexander and Samson Arviko have an abiding interest in firearms. Whether the evidence supports the affiant’s specific belief that “Alexander traffics in firearms with Samson Arviko”[^8] (ibid at para. 157), is somewhat tenuous, but, that said, the record before the issuing justice was not entirely devoid of a reasonable basis for that conclusion.
[95] More importantly, it does not matter whether I accept that his belief is reasonable provided that the facts underpinning the affiant’s belief are, when looked at against the backdrop of all the evidence, such as to reasonably justify the conclusion that intercepting the applicants’ communications would likely assist in the investigation of the offences. Even if, as the applicants argue, the evidence was incapable of reasonably supporting the conclusion that the two men were trafficking in firearms, or, for that matter, had any sort of criminal relationship, proof of a criminal aspect to their relationship is not required. Even if I were to excise the affiant’s contention that the relationship was criminal in nature, proof of an ongoing relationship between the two men, taken together with the evidence surrounding the apparent interest in firearms on the part of both men, would be a sufficient basis upon which to reasonably conclude that interception of private communications between them might reveal evidence concerning the crimes under investigation. Accordingly, this complaint is without merit.
(ii) Samson Arviko’s Involvement in Smuggling Firearms, Either Singly or in Association with Christopher Alexander
[96] The applicants complain that there is no evidence of Samson Arviko being involved in the smuggling of firearms on his own, much less that he was jointly involved with Alexander, and, as a consequence, any and all such statements to that effect should be excised from the ITO.
[97] I agree that there is no direct evidence of Samson Arviko being involved in smuggling firearms, either individually or with Alexander. That said, based on the evidence discussed above in connection with the relationship between Alexander and Samson Arviko and, in particular, the evidence of Samson Arviko’s involvement with firearms, I am of the view that it is not unreasonable to draw the inference that Samson Arviko might be involved in smuggling, either on his own or, perhaps more likely, with Alexander. There is evidence, after all, linking Alexander to Brandon Assoon at a time when Assoon was in contact with his cousin, Oliviere, who, in turn, was in contact with Whitney at precisely the times when Whitney made purchases of weapons. On the other hand, if I am wrong, then, for the reasons previously discussed in connection with the relationship between Alexander and Samson Arviko, I am of the view that to excise the statements of which the applicants complain would not have any effect on the sufficiency of what would be left in the ITO.
(iii) Use of 133 Church St. to Hide Criminal Activities Elsewhere
[98] The applicants argue that there is no reasonable basis for the affiant’s statement that neither Samson nor Peter Arviko lived at 133 Church Ave., in Toronto,[^9] but were merely using that address to hide their criminal activities at other locations.
[99] According to Ontario Ministry of Transport records and information provided by Peter Arviko Sr. himself, it would appear that Peter Arviko Sr., the father of Samson and Peter Arviko, resided at this address.[^10] There is evidence that his sons have indicated that they live there.[^11] Other evidence, however, indicates that they did not live there as of the time the ITO was sworn, but, rather, at 50 Gibson St., in the Town of Ayr, Ontario.[^12]
[100] In my view, the fact that each of the brothers reported to police that he lived at 133 Church Ave. at a time when he was, in fact, living in Ayr, Ontario, is some evidence to support the notion that neither of them wanted the authorities to know where he actually lived. Given the evidence of drug dealing at the address in Ayr, and given the evidence that the men thought that the police were interested in their activities, it seems to me a reasonable inference that either man might have intended to mislead the police as to where he actually lived so as to reduce the chance of being discovered doing something illegal at his actual address. On the other hand, if I am wrong, and there is no basis on the evidence from which to reasonably draw that conclusion, I am of the view that to excise the statements of which the applicants complain would not have any effect on the sufficiency of what would be left in the ITO.
(iv) Mention of Firearms Purchased by Whitney in 2006, 2007 and 2009
[101] The applicants contend that any mention of purchases of firearms by Whitney in 2006, 2007 and 2009[^13] is misleading because it tends to suggest that the Assoons were involved in those purchases when there is no actual evidence to support such a contention. I disagree.
[102] In my view, given that there is no evidence to connect the Assoons to Whitney’s purchases of firearms in those years, the intelligent reader could not reasonably understand the affiant to be making that suggestion. The information is quite properly included, however, as tending to demonstrate that Whitney is involved in the trafficking of firearms. That fact, in turn, tends to increase the likelihood, when considered with other evidence, that the communications (between the Assoons and Oliviere, on the one hand, and between Oliviere and Whitney, on the other), on or about the days in 2010 when Whitney purchased firearms that subsequently wound up in Canada, were related to those purchases. In this instance, inasmuch as the information of which the applicants complain cannot reasonably be used as a basis from which to draw the inference for which the applicants suggest the affiant included it, it follows that to excise the information would have no effect on the sufficiency of what would be left in the ITO.
(v) Criminal Association between Samson and Peter Arviko
[103] The applicants complain that there is no basis in the evidence for the affiant’s stated belief to the effect that Samson and Peter Arviko are involved in a criminal relationship. I disagree. Admittedly, there is no evidence suggesting that Peter Arviko is involved with firearms. That said, there is ample evidence from which one could readily deduce that he is involved with Samson Arviko in trafficking controlled substances, including cocaine and heroin. Given the extent to which it would appear that Samson Arviko is involved with firearms, it is not unreasonable to postulate that Peter Arviko might well be involved in any illegal activities in which Samson Arviko is involved.
[104] Even if I am wrong in that conclusion, as noted above, in order for there to be grounds to intercept a person’s private communications, it is not necessary to demonstrate that the person is involved in the crime being investigated. Therefore, it is not necessary to show that Peter and Samson Arviko were engaged in trafficking firearms in order to justify intercepting their communications. Thus, taking away this assertion would have no impact on the sufficiency of what would remain in the ITO.
(vi) Use of Nicole Pereira’s Home for Criminal Purposes
[105] The only information that I am prepared to excise is the affiant’s statement to the effect that Samson Arviko was resorting to Nicole Pereira’s home for the purpose of conducting illegal activities, including drug dealing. There is no foundation for that statement as I read the material. Accordingly, I disabuse my mind of that assertion in deciding this application. I am satisfied, however, that the absence of that statement would have had no effect on the issuing justice’s conclusion as to the sufficiency of what remains.
Misleading, Incorrect, Irrelevant and/or Erroneous Information
[106] The applicants argue that the authorization is “based on an affidavit that contained misleading, incorrect, irrelevant and/or erroneous information”: Applicants’ Factum, at para. 4. Apart from this bald, conclusory statement, there is no specific allegation that any of the affiant’s assertions are false. As earlier noted, in reviewing the ITO I have found no information that is false, misleading or incorrect.
[107] As for relevance, understanding that affiants in ex parte applications are required to make full, fair and frank disclosure, and given the scrutiny that is brought to bear on affidavits on applications such as this, it is easy to see how an affiant would see fit to include information that might, with the benefit of objective hindsight, later be considered to be irrelevant. That said, unless it were so copious as to obscure relevant information, or had a tendency to mislead, I fail to see how irrelevant information can be said to undermine the grounds provided by that information that is relevant. Presumably, it would amount to nothing more than mere surplusage.
Affiant Relied on Evidence of Charges that Were Dismissed or Never Laid
[108] As in their application to cross-examine, the applicants submit on this application that the affiant relied on information pertaining to charges that were either never laid or, if laid, later dismissed as a basis upon which to establish a connection between Christopher Alexander and Samson Arviko. I already have addressed the merits of this claim in paragraphs 50 to 52 above. I reject it here for the same reasons.
[109] The applicants argue that the dated police information upon which the affiant relied “does not support a present-day connection between these two parties”: Applicants’ Factum, at para. 60. They base their argument on the proposition that an acquittal and, by obvious extension, charges not laid, must be equated with innocence. Their reliance on the authorities they cite[^14] is misplaced, however; those cases all deal with the effect of an acquittal at trial, not on inferences drawn at the investigative phase of a case.
RESULT
[110] In the result, I find that there was sufficient evidence to establish reasonable and probable grounds to believe that the interception of the applicant’s private communications would afford evidence of the offences under investigation. The application to exclude the private communications from the trials of the applicants is hereby dismissed.[^15]
R. Clark J.
Released: August 16, 2013
[^1]: For ease of reference, the exhibits on both applications are numbered in one sequence. The edited ITO is now Exhibit 1. [^2]: The memory stick (flash drive) containing electronic versions of both the original and the redacted ITO is Exhibit 2 on this proceeding. [^3]: The Table of Concordance is Exhibit 3 on this proceeding. [^4]: That transcript is Exhibit 4 on this proceeding. [^5]: These topics are also found at subparagraphs 7(h), (j), (k), (m), and (o) to (u), inclusive, of the Notice of Application to Cross-examine Part VI Affiant. [^6]: The above mentioned correspondence is now Exhibit 5 on this application. [^7]: “G” is a nickname for Warren Loppie. [^8]: For similar statements in this behalf, see also the edited ITO, at paras. 187-88. [^9]: This address is variously referred to in the ITO as being in North York, Willowdale and Toronto. Nothing turns on these disparities; rather, I take judicial notice that they reflect the fact that the area known as Willowdale was a part of the City of North York, which, since the year 2000, now forms part of the amalgamated City of Toronto. [^10]: See the edited ITO, at para. 147. [^11]: Regarding Samson Arviko, see subparagraphs 134(i) and (viii) of the edited ITO, which mention court documents containing this address. See also subparagraph 105(v) of the edited ITO, which indicates that Samson Arviko told a police officer that he lived at 133 Church Ave. Regarding Peter Arviko, see subparagraphs 135(iii), (iv) and (v) of the edited ITO, where it appears he told police upon three occasions when being investigated in traffic stops that he lived at 133 Church St., Toronto. [^12]: Regarding Samson Arviko, see paragraph 69 of the edited ITO, which speaks of two CIs indicating, in the first half of 2010, that Samson Arviko lived in Ayr, Ontario. In the latter part of 2010, three other CIs (one of whom was unproven) associated Samson Arviko specifically to 50 Gibson St., in Ayr. In the early part of 2011, two CIs provided information associating Samson Arviko with a townhouse at 41 Valleyfield Rd., in Waterloo. Regarding Peter Arviko Jr., see the edited ITO, at paragraph 106, which refers to the manager of the apartment building at that address confirming that the persons on the lease for Apt. 204 are Nicole Cuzzi and Peter Arviko. The edited ITO, at subparagraph 123(i), also details surveillance observations of a motor vehicle, bearing Ontario marker BHAN 416, parked at 50 Gibson St., in Ayr. See also subparagraph 135(iv), which details Peter Arviko driving that motor vehicle, which is registered to his father, Peter Arviko Sr. Regarding both Arvikos, see subparagraph 114(i) of the edited ITO, which details surveillance observations of the brothers entering a vehicle parked at 50 Gibson St. [^13]: See the edited ITO, at paras. 35-38, 41. [^14]: R. v. Akins (2002), 2002 44926 (ON CA), 164 C.C.C. (3d) 289 (Ont. C.A.); R. v. Robinson (2006), 2006 33189 (ON CA), 212 C.C.C. (3d) 439 (Ont. C.A.); R. v. Grdic, 1985 34 (SCC), [1985] 1 S.C.R. 810. [^15]: The foregoing reasons will be Exhibit 6 on the combined application.
CITATION: R. v. Arviko, 2013 ONSC 5327
COURT FILE NO.: 12-70000839-0000
DATE: 20130816
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
SAMSON ARVIKO, PETER ARVIKO and CHRISTOPHER THOMPSON Applicants
AND BETWEEN:
HER MAJESTY THE QUEEN Respondent
- and –
SAMSON ARVIKO, HASAN MOHAMMED CUMOR and RUKIYO OMAR Applicants
AND BETWEEN:
HER MAJESTY THE QUEEN Respondent
- and –
SAMSON ARVIKO, JORDAN BROWN, SHAUN FALLS, and SEAN JACKSON Applicants
AND BETWEEN:
HER MAJESTY THE QUEEN Respondent
- and –
SAMSON ARVIKO, ADRIENNE RACHEL FAYTER, ROBERT MEYER, SHELDON PATTERSON and MARCUS SANDFORD Applicants
R E A S O N S F O R D E C I S I O N
R. CLARK J.
Released: August 16, 2013