SUPERIOR COURT OF JUSTICE
(Toronto Region)
COURT FILE NO.: CR-09-10000305-0000
DATE: 20130812
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
-and-
DAVIDE DUNCAN, RIKARDO ROBINSON, DEVERTON GRANSTON and KEVIN REILLY
Applicants
A. Boni and D. Santoro for the Applicants
J. Dick, J. Levy and M. MacDonald for the Respondents
Heard: January 17 to 20; 23 to 27; 30 and
31, 2012; May 24 and 25 2012;
RULING ON GAROFOLI APPLICATION
I. FACTUAL OVERVIEW
[1] This is a Garofoli application for review of a wiretap authorization granted on March 14, 2007 by Mr. Justice Clark and was valid from March 14 to May 11, 2007 as well as an expansion authorization granted on May 11, 2007 by Justice Molloy and was valid from May 11 to July 6,
-2-
- This also involves an attack on affidavits for four other orders that were obtained by
R.C.M.P. Cst. DeSimone. 1 I dismissed the application on August 2, 2012 and these are my reasons to follow.
[2] The defence position is that the fraudulent aspects of these pnor affidavits were incorporated info the affidavit prepared by Det. Cst. Hochradl that was used to obtain the authorizations granted by Justices Clark and Molloy. Consequently, the defence submits that all of Mr. Duncan's and Mr. Robinson's phone records and wiretap interceptions must be excluded as evidence from their upcoming trial under section 24(2) of the Charter.
II. ISSUES
[3] After a review of the relevant law, I will address the following issues:
(1) Did Const. Di Simone engage in deliberate fraud in obtaining the orders that he did?
(2) Alternatively, even if not intentional were Cst. DeSimone's informations to obtain so misleading as to undermine the process of judicial pre-authorization?
(3) The Garofoli Review of the Hochradl Affidavit
(a) Alleged inaccuracies and what should be done about them
(b) Unconstitutionally obtained information
(c) Prejudicial and irrelevant information
(d) After both amplification and excision does the affidavit disclose adequate grounds for the granting of the authorization?
(4) Should the products of the wiretap authorization be excluded under s. 24(2) of the Charter?
1 Cst. DeSimone was the officer in charge of Project 0 an investigation conducted by the Airport Integrated Investigations Unit (AIIU), which investigates and identifies organized crime involving airport employees at Pearson Airport. The first Production Order was issued by J.P. Jensen on February 10, 2006 in respect of Davide Duncan's cellphone records for December 2005. The second Production Order was issued by J.P. Redmond on April 20, 2006 in respect of cellphone records of (416) 333-3715 for December 2005. This telephone number showed up on the December 2005 Duncan cell records obtained via the February 2006 Production order. The third Production Order was issued by J.P. DiLorenzo on August 21, 2006 in respect ofDavide Duncan's cellphone records from May to August, 2006. The DNR warrant was issued by J.P. Frederickson on November 21, 2006 for Davide Duncan's and Michelle Young's cellphones from November 21, 2006-January 22, 2007.
... (continues exactly as provided in the source through paragraph [111]) ...
[111] For the foregoing reasons the application is dismissed.
Released: August 12, 2013
[2]