ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13-10000535-0000
DATE: 20131220

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MUSE ABDIRAHIM ET AL

Gary Valiquette, Marylou Armour and Catherine Rhinelander, for the Crown Respondent

Sal Caramanna, Heather Pringle, Joshua Tong and Paula Rochman, for the Accused Applicants

HEARD: December 2 to 5, 2013

m.a. code j.

REASONS FOR JUDGMENT

(Ruling on Pre-Trial Application)

A. OVERVIEW

[1] By Notice of Application dated November 7, 2013, thirty-three Applicants seek exclusion of wiretap evidence at their upcoming trials. They allege violations of s. 8 of the Charter of Rights and Freedoms and rely on the remedial powers found in s. 24(2) of the Charter.

[2] The thirty-three Applicants are all charged with various offences in ten separate Indictments filed in this Court. The Indictments emerged out of a large police investigation in Toronto in 2011 known as “Project Marvel”. Although the various Indictments are separate, they all rely on evidence derived from two common wiretap authorizations. As a result of this common evidentiary source, Then R.S.J. made an Order dated October 10, 2013, pursuant to the relatively new provisions of s. 551.7(3) of the Criminal Code, designating a single judge to rule on any motions attacking the admissibility of the wiretap evidence for purposes of all the separate trials.

[3] The thirty-three accused, who are all separately represented for purposes of their trials, appointed three counsel to bring the present Application. One of the thirty-three Applicants, Chermar Gardner, also raised an additional argument through his trial counsel. Lengthy and thorough facta were filed and I heard oral argument over four days, from December 2 to 5, 2013.

[4] The Applicants had brought a motion before me, seeking further disclosure relevant to the present Application, but that motion was resolved without the need for a hearing. The Applicants also planned to seek leave to cross-examine the affiant, Detective Constable Patrick Plunkett, but that motion was abandoned. As a result, there is virtually no extrinsic evidence before me on the Application, with the exception of a number of documents that were filed by the Applicants and by the Respondent. The great bulk of the Application Record consists of D.C. Plunkett’s two lengthy affidavits which led to the two challenged wiretap authorizations, both of which were granted by Nordheimer J. on August 31, 2011 and October 26, 2011.

[5] The second authorization expired after sixty days, in late December 2011. On December 13, 2011, the police executed ninety-two search warrants, laid charges against eighty people, and seized firearms, drugs and money. The charges proceeded through a number of separate preliminary inquiries in the Ontario Court of Justice. Some of the cases were resolved or are presently being resolved. What remains of “Project Marvel” are the ten Indictments filed in this Court. They allege many different offences, including trafficking in both firearms and drugs for the benefit of a criminal organization, possession of firearms, transferring firearms, armed robbery, break and enter, obstruct justice, and prostitution related offences.

[6] The thirty-three Applicants advanced two arguments, both alleging facial insufficiency in D. C. Plunkett’s first affidavit, as follows: first, they submit that the “investigative necessity” requirement found in s. 186(1) of the Criminal Code was not met; second, they submit that five of the forty-five “known” and named persons, who were the subject of the first authorization, should not have been included as the facts relied on by D.C. Plunkett did not rise to the level required by s. 185(1)(e) of the Criminal Code (“may assist the investigation”). The first of these two arguments has broad implications. If it is correct, the first authorization would have to be set aside on the basis that it was unlawful. Given that the second authorization depended heavily on the first, it is conceded by the Crown that the second authorization would also have to be set aside. The unlawfulness of a wiretap authorization is a per se violation of s. 8 of the Charter. Accordingly, the issue would then become whether to exclude the fruits of this s. 8 violation pursuant to s. 24(2) of the Charter. The second argument has much narrower implications. It potentially could have an impact on some of the interceptions of five of the named targets. It would have no impact if they were communicating with some other properly named target or if their communications fell within the “basket clause” relating to “unknown persons”.

[7] As previously noted, a third argument was advanced by counsel on behalf of Chermar Gardner. It involves a sub-facial attack on a narrow part of D.C. Plunkett’s first affidavit and it raises complex issues concerning the “curtilage” doctrine of search and seizure law. If the sub-facial attack is successful, the result alleged is that Chermar Gardner should not have been named as a “known person”, within the meaning of s. 185(1)(e). This, in turn, would mean that the lawfulness of intercepting his communications would depend on whether he was speaking to some other properly named target at the relevant time or whether his communications fell within the “basket clause” relating to “unknown persons”.

[8] I reserved judgment at the end of oral argument. These are my reasons for judgment.

B. FACTS

[9] The facts relating to the second and third arguments, that is, whether six of the forty-five named targets were “known persons” within the meaning of s. 185(1)(e), will be set out later in these reasons when addressing these narrow arguments. The broader and more fundamental argument is the first one, concerning “investigative necessity”. The facts relating to that argument are found in D.C. Plunkett’s first affidavit and in the additional documents filed by the Applicants and the Respondent.

[10] D.C. Plunkett sought a wiretap authorization in his 341 page affidavit dated August 25, 2011 on the basis that he was investigating two primary offences, together with any conspiracy, attempt or accessorial liability relating to those two offences. Nordheimer J. granted the first authorization in relation to the ability of the police to solve these offences on August 31, 2011. The essential statutory criterion known as “investigative necessity”, set out in s. 186(1)(b), must therefore be evaluated in relation to the ability of the police to solve these offences with or without wiretapping.

[11] The two primary offences that D.C. Plunkett was investigating were an armed robbery of Daimeon Ennis on May 9, 2011 and an attempt murder of O’neal Goulbourne and two others on May 10, 2011. There was little doubt that both of these crimes occurred. The only live issue was the identity of the perpetrators. There was also little doubt that the two crimes were linked. They both took place one day apart in north-west Toronto in the same neighbourhood, located a few blocks north of Jane and Finch. This neighbourhood is known as “the Courts” or “Up Top”. Firearms were used in both offences. Most importantly, a black Nissan Pathfinder was used by the perpetrators of both offences. The Pathfinder was found by the police, shortly after the May 10th attempt murder, and it contained a number of items stolen from the victim Ennis during the May 9th robbery.

[12] In terms of identifying the perpetrators, there was no direct evidence. The May 9th robbery occurred late at night in a parking lot. It involved five or six males, some of whom were armed with handguns. One or more of them remained inside the Pathfinder. The others, who exited the Pathfinder, can be seen in video surveillance stealing Ennis’ belongings and then returning to the Pathfinder. Some of them wore hooded jackets with the hood up. The entire incident appears to have lasted one or two minutes. The victim Ennis was reasonably cooperative with the police but he could only provide general descriptions of two of the perpetrators. Another witness, who was nearby, did not see the faces of the four perpetrators who exited the Pathfinder. He had not seen them before and did not think he would recognize them now. No identification procedures were attempted.

[13] The May 10th attempt murder also failed to yield any direct identification evidence. Unlike the May 9th robbery, the May 10th attempt murder occurred in broad daylight at a public intersection. The perpetrators fired their gun from the window of the Pathfinder as it drove up to another car containing the three victims or targets of the shooting. Many witnesses either heard or saw the gunshots fired from the Pathfinder but none of these members of the public could describe the perpetrators, other than providing a very general description of the driver. One photo line-up was attempted but the witness advised the police that she was unable to identify anyone.

[14] Shortly after the May 10th shooting, the Pathfinder was seen parking at a nearby building. Three occupants emerged from the vehicle and ran away. One witness observed them from her balcony and provided very general descriptions. The Pathfinder was seized by the police.

[15] The three victims or targets of the May 10th shooting did not report the offence to the police. They drove away from the crime scene in their car. One of them, Chanise Thomas, was hit in the leg by one of the approximately 8‑11 bullets that were fired from the Pathfinder. Thomas’ two male companions in the car were her boyfriend, O’neal Goulbourne, and his brother Matthew Hinkson. The police found the three of them, sometime after the shooting, after being called to a hospital where Thomas was being treated for a bullet wound to her leg. The various accounts of the shooting that were then provided by the three victims or targets were to the general effect that the Pathfinder had pulled up to their car and that the two drivers were facing each other at a distance of about twenty feet. A passenger in the Pathfinder then leaned out of a window and began shooting. The three victims or targets of the shooting ducked down, drove away, and did not call the police. No descriptions were provided of the perpetrators. The three victims or targets were generally uncooperative with the police and their various accounts of the incident contained inconsistencies. Goulbourne, who appeared to be the main target of the shooting, told the police that he did not see the perpetrators, he did not know who it could be, and he had “no beefs with anyone”. However, he also said that “he would have to start wearing his [bullet proof] vest”. Hinkson also told the police that he was “unable to see who was firing” and that he had “no idea who or why this would happen”.

[16] Although there was no direct evidence identifying the perpetrators of the May 9th robbery or the May 10th attempt murder, the police investigation uncovered a wealth of circumstantial evidence over the ensuing months. That evidence linked numerous parties to the Pathfinder or to the gun used in the May 10th shooting, as follows:

• The Pathfinder was a rental vehicle that Irshad Ahmed and Sliman Husaini had rented in Woodbridge on April 12, 2011;

• Fingerprints of Guled Mahadale, Gaddiel Ledinek, Quinton Gardner, and Prince Asante were found in or on the Pathfinder;

• The gun used in the May 10th shooting left numerous shell casings and projectiles at the crime scene. They were later matched by forensic ballistics experts to a Smith and Wesson pistol that was seized on June 26, 2011 in London, Ontario. The police stopped a car occupied by Sliman Husaini, Jouda Jouda, and Adnan Omar. Two handguns were found in the car, including the Smith and Wesson pistol that was used six weeks earlier in the May 10th shooting;

• A Louis Vuitton bag was found in the Pathfinder. The bag was associated with both Gaddiel Ledinek and Guled Mahadale. It contained a photograph of six males, three of whom were identified as Guled Mahadale, Abshir Abdirashid, and Chermar Gardner. Further police investigation led to the inference that the photograph was taken in the five days preceding the May 10th shooting. Another copy of the photograph was seized from Quinton Gardner’s cell phone when he was arrested on May 14, 2011. A second photograph in this cell phone depicted the letters “YBK” spelled out in money. The significance of the letters “YBK” will be discussed below;

• A cell phone contract was found in the Pathfinder. Further police investigation connected the contract to a second cell phone purchased at the same time and place, that is, on April 26, 2011 in Vaughan. The purchaser on both of the cell phone contracts used the same apparently false name and address. Yasin Hersi was identified as the purchaser of one of these two phones. Calls on the two cell phones at relevant times were made to phones associated with Prince Asante, Quinton Gardner, Irshad Ahmed, Turell Tomlinson, Mahadale Mahadale, Gaddiel Ledinek, Joel Benjamin, and Abshir Abdirashid;

• A Blackberry cell phone was found in the Pathfinder. Further police investigation connected this phone to Joel Benjamin;

• An LG cell phone was found in the Pathfinder. Further police investigation connected this phone to Turell Tomlinson. Calls on the LG phone at relevant times were made to phones associated with Yasin Hersi, Quinton Gardner, Joel Benjamin, Jerry Mensah, and Kwasi Skene‑Peters;

• A GPS device was found in the Pathfinder. Further police investigation connected the device to Prince Asante.

[17] It can be seen that the May 9th robbery was likely carried out by five or six males and the May 10th attempt murder was likely carried out by three males, none of whom had been identified. The circumstantial evidence led the police to at least sixteen potential suspects or persons of interest...

(continues verbatim through paragraphs [17] to [95] exactly as in the source decision)

M.A. Code J.

Released: December 20, 2013

COURT FILE NO.: 13-0000535-0000
DATE: 20131220

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MUSE ABDIRAHIM ET AL

REASONS FOR JUDGMENT

M.A. Code J.

Released: December 20, 2013