SUPERIOR COURT OF JUSTICE
Court File No.: 13-9000065-0000
Date: 2013-01-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
Bari Crackower for the Crown
- and -
SAEID CHEGINI
Applicant
Susan Adams for Saeid Chegini
Heard: January 14, 2013
Thorburn J.
RULING
THE ISSUE
1On this voir dire, the Applicant seeks a ruling that Saeid Chegini’s right to be free of unreasonable search and seizure was violated and for an Order excluding all evidence obtained as a result of the unreasonable search.
2The Applicant claims that all of the intercepted calls should be excluded from evidence at trial on the grounds that installation of the probe without a warrant constitutes an unreasonable search and seizure as there were no reasonable grounds to believe Saeid Chegini would be driving the vehicle prior to installation of the device in the vehicle.
3The Crown claims there were reasonable grounds to believe Chegini would be driving the vehicle and therefore the search was not unreasonable.
THE MATERIAL FACTS
4On November 8, 2010, Nordheimer J. granted an authorization to intercept communications involving Saeid Chegini and others in places, including mobile places, “that there are reasonable grounds to believe is being or will be resorted to, or used by” a group that includes Chegini.
5Detective Ibbott became involved in this investigation on November 9, 2010. His role was to review intercepted communications obtained as a result of the authorization granted and to make decisions based thereon.
6Pursuant to surveillance conducted on Saeid Chegini and Fardin Ayati-Ghaffari, Detective Ibbott learned that Saeid Chegini attended Discount Car Rental at 330 Steeles Avenue with Fardin Ayati-Ghaffari.
7Thereafter, surveillance reports showed Chegini drove a Ford Focus, rented from Discount Car Rental, on November 22, 24, 25 and 26, 2010.
8On November 30, 2010, a text message from Ghaffari to Chegini was intercepted on Ghaffari’s cellular telephone. He sent Chegini a message that Discount had called asking him how long he intended to keep the car and telling him to call the next day and let them know or else they would change the rate.
9On December 3, 2010, Ibbott contacted Peter Taylor, the manager of the Discount Rental location. Taylor advised Ibbott that the lease contract expired on December 8, 2010, and that Ghaffari and Chegini had signed the lease agreement: Ghaffari as primary driver and Chegini as secondary driver.
10Ibbott asked Taylor to contact Ghaffari to see if they were going to continue to rent the first vehicle, a Ford Focus, and if so, to tell him that Discount would give them a separate vehicle. Taylor agreed that if Ghaffari agreed to take the second vehicle, the second vehicle would first be provided to police so that a probe could be installed in it.
11Discount made that call on December 3, 2010, and Ibbott listened to the call. Ibbott heard the Discount representative ask Ghaffari to return the rental car and a second rental vehicle would be provided. He does not recall Ghaffari’s response.
12Taylor told Ibbott that Discount would provide a second rental vehicle to Ghaffari but would first make it available to police to install the probe.
13On December 6, 2010, the vehicle was turned over to police in order to install the probe. No warrant was sought to install the probe.
14On December 7, 2010, Ibbott told Taylor to tell the renter that the second vehicle would be ready for pick up on December 7, 2010. Ibbott testified that he never received any information that there would be any change in the contract.
15Later that day, Ibbott learned from Taylor that the first vehicle was dropped off and the second vehicle was picked up. The vehicle was not picked up by either Chegini or Ghaffari. A half hour after the vehicle was picked up, the two individuals who picked up the vehicle were seen in the company of Chegini.
16Numerous telephone calls involving Chegini were intercepted as a result of the installation of the probe in the vehicle driven by Saeid Chegini.
17I believe there were reasonable grounds to believe Chegini would be using the second rental vehicle for the following reasons:
a. Ibbott was advised that Chegini was one of the two listed drivers on the first lease, and had driven the first rental vehicle many times.
b. Discount called the lessee on December 3, 2010, to advise that the first rental vehicle had to be returned before the contract expired on December 8, 2010, but that the vehicle could be returned and a second rental vehicle provided at the same rate.
c. Discount transferred the second rental vehicle to police to install the probe. The only reason to have the probe installed is if the lessee had agreed to take the new vehicle.
d. Ibbott listened to the conversation between Discount and the lessee and although he does not remember what the lessee said, he testified that he never received any information that there would be any change in the contract of any kind.
e. At Ibbott’s instruction, Discount called the lessee again on December 7, 2010, to advise him that the new vehicle was ready for pickup. There is no reason to do so unless the lessee had agreed to take the new vehicle.
f. The first rental vehicle was dropped off and the second vehicle taken by the same parties (albeit not Chegini or Ghaffari personally).
18For these reasons, I conclude that there were reasonable grounds for Detective Ibbott to believe Chegini would use the second rental vehicle. The Application is therefore dismissed.
Thorburn J.
Dated: January 18, 2013