COURT FILE NO.: 13-30000622-0000
DATE: 20140917
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
NOUR MARAKAH
Applicant
Erin Pancer, for the Crown
Mark Sandler and Wayne Cunningham, for the Applicant
HEARD: April 1 and 2, June 23, 24, 25, 26 and 27, July 14, 15 and 16, 2014
L. A. PATTILLO J.:
Charter applicationS
Introduction
[1] Nour Marakah is charged with four counts of possession of a firearm knowing the possession was unauthorized (s. 92(1) of the Criminal Code); six counts of possession of a loaded firearm (s. 95(1)); sixteen counts of trafficking firearms (s. 99(1)) and thirty-eight counts of possession for the purpose of trafficking (s. 100(1)). The trial is scheduled to begin in early October, 2014.
[2] On November 6, 2012, police executed a search warrant at Mr. Marakah’s residence. Mr. Marakah was arrested and certain items were seized, including Mr. Marakah’s cell phone which was subsequently searched by the Intelligence Division Technological Crimes Unit (“Tech Crimes”) of the Toronto Police Service (TPS).
[3] On the same day, Andrew Winchester (“Winchester”) was also arrested and his cell phone seized by TPS. The police subsequently did a cursory search of Winchester’s phone at the police station and located a number of text messages between Mr. Marakah and Winchester. The phone was later searched in greater detail by Tech Crimes.
[4] As a result of the above events, Mr. Marakah has brought an Application pursuant to ss. 8 and 24(2) of the Charter of Rights and Freedoms (the “Charter”) claiming that his Charter rights have been violated. The Application is divided into three parts:
a) Mr. Marakah challenges the issuance of the search warrant to search his residence and seeks exclusion from evidence of the items seized by TPS at the time;
b) Mr. Marakah challenges the seizure and search of his phone and seeks an exclusion from evidence of the information subsequently found in and recovered from the phone by TPS; and
c) Mr. Marakah challenges the TPS search and seizure of his text messages on Winchester’s phone and seeks their exclusion from evidence at trial.
[5] In addition to the above Application, both Mr. Marakah and the Crown brought Applications concerning the admissibility of statements provided by Mr. Marakah to the TPS following his arrest and the evidence derived therefrom. Those Applications have now been resolved between the Crown and Mr. Marakah and no longer from part of the issues I am required to resolve.
Facts
[6] Although there are, in effect, three separate Applications, one voir dire was held in the Application. It was agreed by the parties that the evidence presented on the voir dire would apply to all three of Mr. Marakah’s Charter challenges. The facts were presented both by agreed statements of fact and by viva voce evidence. The following are my findings with respect to the facts.
[7] On June 15, 2012, members of the TPS arrested four males in Toronto. In conjunction with the arrests, the police seized a semi-automatic firearm which had its serial number removed. Subsequently, TPS was able to successfully recover the serial number.
[8] As a result of tracing the serial number, the police were able to discover that the firearm had been lawfully purchased on May 25, 2012 by a 21 year old student. Subsequent investigation revealed that over a four-month period beginning at the end of May 2012, the student had purchased 22 additional restricted handguns.
[9] In light of the above information, the TPS commenced an investigation into person who had legally purchased a number of firearms over a short period of time. Winchester was identified as having purchased 45 firearms between June and November 2012. The firearms were all registered to an address at 57 East Avenue in Toronto. Further investigation revealed that Winchester had recently purchased two restricted firearms which were being held at an outdoor store in Toronto.
[10] On November 5, 2012, TPS applied for and obtained four search warrants for the following locations:
57 East Avenue, Toronto;
30 Carabob Court Apartment 1211 (Winchester’s girlfriend’s residence);
A 2009 Mitsubishi LTG (black), licence BKWF667 (Winchester’s car); and
1 Dean Park Road, Apartment 512 (Mr. Marakah’s residence).
[11] In support of its Application for the issuance of the four warrants, TPS prepared and submitted an Information to Obtain (“ITO”) that set forth the details of the police investigation. In addition to information obtained by the police directly, the ITO set out information obtained from a confidential informant (“CI”).
[12] On the morning of November 6, 2012, Winchester was the subject of police surveillance. He was observed entering the outdoor store where he had previously purchased the two guns police were aware of and leaving a short time later with two white shopping bags. He put the bags in the trunk of his car and drove to 30 Carabob Court where he parked.
[13] Winchester was arrested by the police at 12:05 p.m. on November 6, as he opened the trunk of his car and was removing the two bags. At the time of his arrest, an iPhone was seized from his front pocket. It was not searched by police at the scene of the arrest.
[14] Following Winchester’s arrest, the police executed the search warrants for 30 Carabob Court, Apartment 1211 and Winchester’s car. The police seized two handguns in the apartment, both lawfully purchased by Winchester and registered to 57 East Avenue as well as two Benelli shotguns and documentation showing Winchester resided at 30 Carabob Court. In the trunk of Winchester’s car, the police found two additional firearms as well as a number of boxes of ammunition.
[15] Upon completion of the above searches some two hours later, Winchester’s iPhone was transported to 42 Division. Detective Tim Wilson who was the officer in charge of the investigation was involved in the execution of the search warrant at Mr. Marakah’s residence. He returned to 42 Division at 1:30 p.m. He remembered receiving Winchester’s iPhone at some point but was not sure when or from whom. The phone was not password protected. He looked at it briefly and saw there were text messages from someone he understood to be Mr. Marakah. He did not read the texts. Concerned that they could be remotely deleted and in order to preserve the messages, Officer Wilson had Officer Robert Frigon, a scenes of crime officer, take photographs of the text messages. The text messages evidenced a discussion between Winchester and Mr. Marakah concerning gun trafficking. In total, 161 photographs were taken.
[16] Although many of the facts have been agreed to by the parties or are not really in dispute, there remains a significant dispute as to what occurred inside Mr. Marakah’s residence when TPS executed the search warrant on November 6, 2012 and arrested him.
[17] TPS executed the search warrant for Apartment 512, 1 Dean Park Road at 12:10 p.m. Detective Sukumaran was the first officer into the apartment after the door was breached. He went straight into the apartment and observed Mr. Marakah sitting at a computer table in the living room. He testified that Mr. Marakah grabbed a Blackberry phone from the table. He yelled: “Police! Don’t move!” Mr. Marakah dropped the phone on the floor. Officer Sukumaran said he proceeded through the living room to the balcony to make sure no one else was present. Other officers arrested Mr. Marakah although he did not see it. He was aware that Mr. Marakah ended up on the floor but he could not say how that happened. He said that he searched the living room and he observed, on the table where the Blackberry had been, a memory stick, an iPhone, a laptop computer and a desktop computer.
[18] Officer Asselin was part of the team that searched Mr. Marakah’s residence. He heard a commotion in the living room of the apartment and police yelling: “Get down!” When he entered the living room, he saw Mr. Marakah on the ground, being handcuffed and a Blackberry cell phone on the floor close to him. He seized the Blackberry. He subsequently searched the living room and seized a laptop computer and a thumb drive.
[19] Mr. Marakah testified that when the police entered the apartment, he was in the living room with his headphones on listening to music on his laptop. He heard a loud bang. He picked up his phone, stood up from the table and took his head phones off. He tried to enter his password for the phone to call 911 as he thought it was a home invasion. He quickly realized that it was police in the apartment. They came into the living room yelling for him to get down on the ground. The lead officer knocked the phone out of his hand and told him to get down. The phone fell to the floor. He said that he never had a chance to enter his password and unlock the phone.
[20] When the officers returned to 42 Division after the search of Mr. Marakah’s residence, Officer Asselin testified he looked at Mr. Marakah’s Blackberry and Winchester’s iPhone. Both phones were unlocked. There was contact information for both Mr. Marakah and Winchester in each other’s phone. Officer Sukumaran submitted the thumb drive, the Blackberry seized from Mr. Marakah and the iPhone seized from Winchester to Tech Crimes at 5:24 p.m. on November 6 for analysis. Mr. Marakah’s Blackberry was password protected when it was received by Tech Crimes. The intake document noted it was locked and provided a possible password word for it. Officer Sukumaran said he did not recall where he got that information from. No additional warrants were obtained in respect of the searches of the two phones by Tech Crimes and no restrictions were placed on the searches that were conducted.
[21] Tech Crimes extracted the information contained in both Mr. Marakah’s Blackberry and Winchester’s iPhone. The majority of the text messages from Mr. Marakah’s Blackberry which the Crown relies on had been previously deleted. They were recovered through forensic analysis by Tech Crimes.
The Information to Obtain
[22] The affiant in the ITO is a Detective Constable with TPS, assigned to the Firearms Enforcement Unit as an investigator. In addition to carrying out his own investigation in respect of Mr. Marakah, the affiant also received information from other officers which is set out in the ITO. In particular, he received information from the officer who dealt with the CI and from another officer who did some related investigation and who also received information from the officer dealing with the CI.
[23] The ITO contains four appendices. Appendix “A” sets out a list of the items to be searched for and seized. Appendix “A” was subsequently incorporated into each of the warrants. Attached hereto as Schedule “A” is a copy of Appendix “A” to the warrants. Appendix “B” set forth the criminal offences Mr. Marakah and Winchester were alleged to have committed. The crimes alleged against Mr. Marakah are conspiracy to traffic in firearms; possession of a firearm without authorization; and careless storage of a firearm. Appendix “C” contains details about the investigations relating to the student purchaser, Winchester and Mr. Marakah. Because a substantial part of the information relied upon was obtained from the CI, a large portion of the ITO provided to Mr. Marakah was redacted by the Crown on account of informer privilege. The last appendix, Appendix “D” set out the 23 firearms registered to the student purchaser in the Canadian Firearms Registry.
The Law
[24] Prior to embarking on a discussion of the issues raised in Mr. Marakah’s Application, I will set out some of the basic principles relating to the granting of an authorization for a warrant, the standard of review of such an authorization and the procedure to be followed where the information relied on to support the authorization is based, in whole or in part, on a confidential informant.
[25] Section 8 of the Charter provides that an individual has the right to be secure against unreasonable searches and seizures. A reasonable search is one that is authorized by law and conducted in a reasonable manner: Hunter v. Southam, 1984 33 (SCC), [1984] 2 S.C.R. 145.
[26] Before granting an authorization for a warrant, the authorizing justice must be satisfied there are reasonable and probable grounds: first that a specified crime has been or is being committed; and second that the search of the specific premises will afford evidence of the crime: Hunter at p. 168; R. v. Garafoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 (S.C.C.) at para. 53; R. v. Sadikov, 2014 ONCA 72, O.J. No. 376 at para. 81.
[27] In establishing reasonable and probable grounds, information from a confidential informant can be relied on where the informant is credible, the information is compelling and there is corroboration of the information. The reliability of the informant’s information must be assessed on the “totality of circumstances” test which includes a number of factors, including the degree of detail of the tip; the informer’s source of knowledge; and the indicia of the informant’s reliability such as past performance or confirmation by other investigative sources. No one factor is determinative: R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193, at para 53; Garafoli, at para. 68.
[28] The standard of review of an authorization for a warrant is whether there was sufficient and credible evidence to permit the authorizing justice to find reasonable and probable grounds to believe that an offence had been or was being committed and that evidence of that offence would be found at the specified time and place of the search: R. v. Morelli, 2010 SCC 60; 2010 SCC 8, 1 S.C.R 253 at para. 40; Sadikov, at para. 84; Garafoli, at para. 56.
[29] In circumstances where the authorization is based upon information from a confidential informant, the Crown is required to redact such information in the ITO as is necessary to protect informer privilege to ensure the identity of the informer is not revealed, directly or indirectly. The only exception to the protection of informer privilege is where the innocence of the accused is at stake: R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281.
[30] Where the Crown is unable to support the issuance of the warrant based on the redacted ITO, the following procedure has evolved from the steps set out by Sopinka J. in Garafoli, at para. 79. The Crown should provide to both the accused and the court a draft judicial summary of the redacted information. The court then reviews the unredacted ITO and the draft judicial summary and, if necessary, revises the Crown’s draft having particular regard to informer privilege. The revised draft judicial summary should then be reviewed with the Crown, in camera, to ensure that any proposed revisions do not interfere with informer privilege. The final judicial summary should then be given to the accused.
[31] Where, even with the judicial summary, the authorization remains unsupportable, the Crown may apply to have the application judge consider so much of the redacted material as is necessary to support the authorization. In such a case, the application will only be allowed where the court is satisfied that the accused is sufficiently aware of the excised material to be able to challenge it in argument or by evidence – Step six of Garafoli, para. 79.
[32] Section 24(2) of the Charter provides that where a court determines evidence was obtained in a manner that infringed the accused’s Charter rights, “the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” In determining whether the evidence should be excluded, the court should consider three factors: the seriousness of the state’s Charter infringing conduct; the impact of the breach on the accused’s Charter protected interests; and society’s interest in the adjudication of the case on its merits. See: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
Mr. Marakah’s Section 8 Challenge to the Issuance and Execution of the Search Warrant relating to His Residence
[33] Mr. Marakah submits that the issuance of the search warrant in relation to his residence (the “Warrant”) and the subsequent execution of the search by the TPS constituted a breach of his s. 8 Charter rights and any evidence obtained as a result should be excluded from evidence at the trial pursuant to s. 24(2) of the Charter.
[34] Mr. Marakah submits that the redacted ITO fails to provide a basis for justifying the issuance of the Warrant. The Crown concedes that the information set out in the redacted ITO was not sufficient to justify the issuance of the Warrant and, as a result, provided a draft judicial summary of the redacted information to both Mr. Marakah and the court.
[35] In order to finalize the judicial summary, in addition to the draft judicial summary, I was also given a copy of the unredacted ITO. After reviewing them, I revised the Crown’s draft judicial summary and then met with the Crown in camera to discuss my proposed changes. Once the draft judicial summary, as revised by me, was finalized (the “Judicial Summary”), it was provided to Mr. Marakah.
[36] After reviewing the Judicial Summary, Mr. Marakah submitted that he still did not have sufficient information to enable him to challenge the issuance of the Warrant.
[37] The Crown submitted that the Judicial Summary complied with the requirements set out in Garafoli and, together with the redacted ITO, provided Mr. Marakah with sufficient information to enable him to challenge the issuance of the Warrant. As a result, the Crown brought a Garafoli Step Six Application to have the court look at the unredacted ITO in determining whether the Warrant was properly issued by the authorizing judge. Mr. Marakah opposed the Crown’s Step Six Application and in response sought the appointment of a special advocate or amicus who, with certain safeguards to protect the privilege, would be given full access to the unedited ITO and permitted to make submissions, in camera, regarding the validity of the Warrant.
Cross-examination of the Affiant and Sub-Affiants of the ITO
[38] Prior to dealing with the above issues, however, it was necessary to deal with Mr. Marakah’s Application to cross-examine the affiant and the sub-affiants in the ITO.
[39] Mr. Marakah applied to cross-examine the affiant and the two sub-affiants in the ITO who dealt with the CI. Mr. Marakah filed no material in support of the Application.
[40] There is no absolute right to cross-examine the affiant or sub-affiants in an ITO. Leave is required. To obtain leave, the applicant must show that the proposed cross-examination will elicit testimony that tends to discredit the existence of a pre-condition to the issuance of the warrant: Garofoli, at p. 1465; R. v. Piers and Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 at paras. 3, 31 and 41; Sadikov, at paras. 39 and 40.
[41] Mr. Marakah submitted that he wished to cross-examine on the connection between the categories of information available to the affiant and the breadth of items to be searched for as listed in Appendix “A” to the ITO and incorporated into the Warrant as Appendix “A” (Schedule “A” hereto); the offences for which the affiant had reasonable and probable grounds and the connection of those offences to the items to be searched for; the lack of complexity of the investigation; the absence of appropriate consideration of limitations upon the search and seizure of items that attracted a high level of privacy; the presence or absence of corroboration of the CI’s information; the steps taken or not to otherwise verify the CI’s reliability; and “to the extent permitted”, the totality of circumstances said to justify reliance on the CI to justify the searches and seizures.
[42] Following argument, I dismissed Mr. Marakah’s Application to cross-examine for brief oral reasons. It was my view that the proposed cross-examination in respect of the breadth of the items to be searched for (Appendix “A”); the reasonable and probable grounds in respect of the offences, the lack of complexity of the investigation and the absence of appropriate consideration of limitations on privacy interests were all items which in my view rose or fell based on the information contained in the ITO. Mr. Marakah failed to establish that further exploration of these areas would somehow discredit the existence of a pre-condition to the issuance of the Warrant.
[43] Further, to the extent that Mr. Marakah wished to examine in respect of the corroboration to support the reliability of the CI, the steps taken to verify the information received and the totality of the circumstances to justify reliance on the CI, in my view, that information, to the extent it could be provided having regard to informer privilege, was contained in the ITO and the Judicial Summary. To permit further questions in those areas would necessarily impinge on informer privilege.
[44] Finally, and while credibility may be material on a Garofoli hearing, the proposed cross-examination of the affiant in respect of the statement at page 15 of the ITO concerning his omission of what the investigation involved did not go to impugn any of the affiant’s statements in the ITO which were material to the granting of the Warrant. To paraphrase Finch C.J.A., cited with approval in Piers and Lising at para. 68, the misleading statement (if it is in fact misleading) does not create any reasonable possibility that cross-examination of the affiant would elicit testimony that casts so much doubt on his credibility that the reliability of the entire ITO would be tainted.
Step Six and the Appointment of a Special Advocate
[45] The Crown conceded that it could not support the issuance of the Warrant based on the redacted ITO and the Judicial Summary. It submitted, however, that the information presented therein was sufficient to enable Mr. Marakah to challenge the issuance of the Warrant.
[46] Mr. Marakah submitted in response that he did not have sufficient information to enable him to challenge, either facially or sub-facially, the validity of the Warrant.
[47] As I stated in R. v. Crevier, 2013 ONSC 1880, [2013] O.J. No. 5833 (Ont. S.C.) at paras. 50 and 51, and for the reasons set out therein, it is my view that the test to be applied in a Step Six application is whether the accused has received sufficient information to enable him or her to bring a facial challenge to the validity of the warrant.
[48] Further, having regard to the information set out in the redacted ITO coupled with the Judicial Summary, I was satisfied that the information disclosed was sufficient to enable Mr. Marakah to challenge the issuance of the Warrant. Notwithstanding Mr. Marakah’s repeated assertions that there was a complete absence of information, I was satisfied that between the redacted affidavit and the Judicial Summary, that there was sufficient information disclosed to enable him to understand the nature (but not the specifics) of the information before the authorizing justice and, more importantly, to enable him to address the Debot criteria. In that regard there was information concerning the offences alleged; Mr. Marakah’s involvement in them; Mr. Marakah’s association with Winchester; the prior reliability of the CI; the motivation of the CI; and the steps taken to corroborate the CI’s information. Accordingly, I allowed the Crown’s Step Six Application.
[49] Mr. Marakah submitted that the court should appoint a special advocate or amicus, as part of the Garafoli Step Six procedure, to enable sub-facial review of the authorization and thereby ensure Charter compliance. In support of his submission, he relied on the Supreme Court of Canada decisions in R. v. Basi, 2009 SCC 52; Charkaoui v. Canada (Citzenship and Immigration), 2007 SCC 9; 1 S.C.R. 350; Canada (Citzenship and Immigration) v. Harket, 2014 SCC 37.
[50] The proposal, as I understood it, was that a special advocate should be appointed by the court who would meet with Mr. Marakah and his counsel to be briefed. The special advocate would then, under strict requirements of confidentiality, be given access to the unredacted ITO and presumably all background information concerning the confidential informant. The court would then hold an in camera hearing in the absence of the accused to determine the validity of the authorization.
[51] I rejected Mr. Marakah’s submission. In my view, it is neither necessary nor desirable to appoint a special advocate or amicus for a Garafoli review. As I noted in R. v. Thompson, 2014 ONSC 250, [2014] O.J. No. 138 (Ont. S. C.), while the task of the judge on a Garofoli hearing is not without challenges, it is one the judge can do without the assistance of a special advocate. It would also serve to bifurcate the proceedings and lengthen them unduly.
[52] In my view, none of the cases relied upon by Mr. Marakah are applicable. Both Charkaoui and Harket dealt with the certificate procedure under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 which impacted directly on the liberty of the individual. Little or no information behind the certificate was provided to the respondent. A Garofoli review is a completely different proceeding. As was pointed out by Charron J. in Piers and Lising, at para. 30, a Garafoli review is “simply an evidentiary hearing to determine the admissibility of relevant evidence about the offence obtained pursuant to a presumptively valid court order.”
[53] Basi involved a question of the procedure to be followed to determine the issue of informer privilege. The procedure set out by Fish J. is somewhat similar to the Garafoli procedure (paras. 55 to 57). While Fish J. does raise the possibility of the appointment of amicus curiae in “particularly difficult cases”, he makes it clear that the trial judge has a “broad discretion” to craft appropriate procedures.
[54] In my view, the Garofoli procedure as it has evolved is more than adequate to protect the interests of both the accused and the Crown. The accused is able to respond to the facial validity of the ITO and the applications judge can deal with the issues raised. The appointment of an amicus or special advocate would only serve to increase the delay, something which Sopinka J. sought to avoid.
The Validity of the Warrant
[55] Mr. Marakah challenges the facial validity of the Warrant on a number of grounds, including:
a) The Warrant on its face is overbroad; and
b) The edited ITO, as amplified by the Judicial Summary, fails to provide a basis for justifying the issuance of the Warrant;
Overbreadth
[56] Mr. Marakah submits that the description of what is to be searched for and seized as set out in Appendix “A” to the Warrant (Schedule “A” herein) is so broad and vague as to effectively give the searching officers carte blanche to search and seize anything in his residence. In addition, it is submitted that the ITO contains no basis upon which the authorizing judge could conclude that reasonable and probable grounds existed that the items to be searched for and seized could be found at Mr. Marakah’s residence.
[57] The Crown submits that, having regard to the complexity of the investigation, the number of people involved, in addition to Mr. Marakah, and the allegation of conspiracy, the items to be searched for and seized are not too broad. The Crown further submits that the ITO contains sufficient information to establish reasonable and probable grounds that the items to be searched and seized could be found at Mr. Marakah’s residence.
[58] A warrant requires a good deal of specificity with regard to the things to be searched for and seized. See: R. v. Church of Scientology (1987), 1987 122 (ON CA), 18 O.A.C. 321, 31 C.C.C. (3d) 449 (Ont. C.A.). An overly broad search warrant is invalid: R. v. Kahn, [2005] 63749 (Ont. S.C.) at para. 93.
[59] The principles set out in the Church of Scientology and the cases referred to therein were set out by Minden J. in Kahn at para. 40 as follows:
[40] The governing principles relating to this issue emanated, for the most part, from R. v. Church of Scientology (No. 6)4 and the cases cited therein. These principles were set out in the applicant's Outline of Final Submissions, at para. 14. I would adopt as accurate that summary of the law, with but a few modifications:
The description of what is to be searched for must not be so broad and vague as to give the searching officers carte blanche to rummage through the premises of the target. A "good deal of specificity" with regard to the things to be searched for and seized is required.
The things must be described in such a way as to guide the officer or officers carrying out the search and assist them in identifying the object.
In an appropriate case, the warrant may authorize the seizure of classes of things, including documents. However, such classes should normally be limited both with respect to time and with respect to their relationship to the crime or crimes in connection with which they are said to afford evidence. In determining the requisite degree of specificity, a court should consider whether or not the warrant sets out "distinct categories", for example, whether it depends on or is related to a specific company or individual; a court assessing the adequacy of the particularization in the warrant should examine it for limiting words or descriptors, such as "the above described documents to be searched for are to relate to" a specific time period, and "all of the above described things to be searched for to relate directly to the below described offences". In other words, a court may consider whether or not the description of the items to be searched for contain a direct reference to the offence under investigation, thereby setting out a clear nexus for the officers executing the warrant between the items to be searched for and their relationship to the crime alleged. In the alternative, the description may incorporate the offence by reference to the part of the warrant that describes the offence.
In determining the degree of specificity required, regard must be had to the nature of the offence alleged in the information. This will include matters such as the degree of sophistication of the organizational structure of the entity under investigation and its affiliates, the complexity of the offence or offences under investigation, and the length of the time frame of the alleged offences. For example, in tax evasion investigations involving disposition of hidden profits or fraud investigations involving accounting of funds traced through multiple organizations, less precision may be employed.
Some items, for example, a particular book, letter or business agreement can and should be described with specificity. In respect of these kinds of items, a police officer executing a warrant ought not to be given or be permitted to exercise any discretion. Where, however, by the very nature of the things to be searched for it is not possible to describe them with precision or considerable particularity, for example, business records, books of account and financial statements, it is inevitable that the executing officers will have to exercise some discretion in determining whether the things found fall within the description of the things or classes of things described in the warrant. In determining whether or not a reasonable amount of discretion is delegated to the executing officers, regard must be paid, once again, to the degree of sophistication and complexity of the organization and the offence under investigation.
The information and resulting warrant should be viewed as a whole and should not fall as a result of some relatively minor defects that may be found on microscopic examination. Each case must be decided on its own facts.
In some cases, the nature of the seizure may be examined in an assessment of the appropriate amount of particularization in a warrant.
[60] I agree with Mr. Marakah that when the list of items to be searched for and seized as listed in Appendix “A” to the Warrant is considered as a whole, it is virtually limitless. Specifically, I refer to paragraphs 4, 5, 6 and 7 in Appendix “A”. While there are some limitations in the other paragraphs connected to the offences alleged, the breadth of the above noted paragraphs make any such limitations virtually meaningless in my view.
[61] Paragraph 4 authorizes the search and seizure of any document or record of any form (hard copy or electronic) which evidences an association or lack of association with the premises or anything containing such document or record. Paragraph 5 sets out a detailed, non-exclusive list of the documents or records to be searched for evidencing an association or non-association with the premises. The records listed include highly private records and there is no limitation of time or relationship to the alleged offences. Paragraph 6 permits the seizure and search (where not found on the person of anyone on the premises) of any electronic device whatsoever (including any cell phone, pager, Blackberry, PDA, tablet computer, computer, USB or thumb drive, compact disk, DVD, memory card) for an on or off site examination for any document or record that evidence an association or non-association with the premises regardless of the ownership of such devices; the lack of connection of such devices or their contents to any offence or offender and the absence of any time limitations. Paragraph 7 lists any personal items and labeled items which evidence an association or lack of association by any person with the premises and/or anything to be searched for listed in paragraphs 1 and 2 (firearms and ammunition). [Emphasis added.]
[62] The investigation involved in this case was not complex. The allegations were straightforward and the time period over which they occurred was relatively short. Nonetheless, there were, in my view, no meaningful limitations on the items to be searched for and seized in Mr. Marakah’s residence either by time, by offence, or by offender. The police were not confined to search for or seize items connected to firearms or ammunition or any association between the alleged conspirators.
[63] By authorizing the search of all documents or records of any form that evidence an association or non-association with the premises, without limitation to time, the Warrant authorized the search and seizure of virtually everything in Mr. Marakah’s apartment. It follows that the Warrant was overly broad.
[64] I am also in agreement with Mr. Marakah’s submission that the ITO fails to establish that the affiant had reasonable and probable grounds to believe that certain of the items listed would be found at Mr. Marakah’s residence. I refer specifically to the very broad list of electronic devices in paragraph 6.
[65] In the section of the ITO entitled “Overview of the Investigation”, the affiant sets out the three individuals, Mr. Marakah, Winchester and Justin Green, in respect of whom the warrants are sought. The affiant then sets out his belief regarding the individuals and their involvement in illegal firearms trafficking. He then states: “I believe that a search of these dwellings and vehicles will yield me the items that I have listed in Appendix “A” of this affidavit. I believe that these items are imperative in furthering the charge of Conspiracy to Commit an Indictable Offence.” The affiant then says that he has set out his beliefs in the following paragraphs of the ITO.
[66] The following paragraphs, as expanded by the Judicial Summary indicate generally that the CI provided information in relation to Mr. Marakah and his involvement in trafficking firearms. Having viewed the unredacted ITO, and in the absence of being able to be specific, while there is some information in the ITO which would justify the search for and seizure of one of the electronic devices listed, there is no information that establishes reasonable and probable grounds that the broad array of electronic devices listed in paragraph 6 of Appendix “A” would be found in Mr. Marakah’s residence or that they would contain information pertaining to the offences.
[67] The Crown submits that given the nature of the offences alleged, it is reasonable to assume that such devices would be present and that information concerning the offences would be found in them. I disagree. In the absence of more specific facts relating to the presence of such devices and their use in the commission of the offences alleged, such an inference cannot be drawn.
[68] For the above reasons, therefore, the Warrant was invalid. Accordingly, the search of Mr. Marakah’s residence was without lawful authority and, therefore, a breach of s. 8 of the Charter.
No Reasonable and Probable Grounds for the Offences Alleged
[69] Although I have found that the Warrant was not valid due to its over breadth and the failure of the ITO to provide reasonable and probable grounds supporting the search and seizure of all electronic devices listed, I will deal briefly with Mr. Marakah’s submission that the ITO failed to present sufficient credible and reliable evidence to permit the authorizing justice to find reasonable and probable grounds that an offence had been committed. Specifically, Mr. Marakah submits that there was no evidence to corroborate the information provided by the CI concerning Mr. Marakah’s involvement in the trafficking of firearms.
[70] As noted, a confidential informant can be relied upon to establish reasonable and probable grounds where the informant is credible, the information is compelling and there is corroboration of the information provided: Debot. In assessing the reliability of the informant, the court must apply the “totality of circumstances” test. No one factor is determinative.
[71] In the present case, the information provided in the redacted ITO and the Judicial Summary clearly indicates that the information from the CI is compelling. He or she provides timely information on more than one occasion of Mr. Marakah, his involvement in the obtaining and selling of firearms and his relationship with Winchester and others. The information is first hand except where noted. Further, the Judicial Summary indicates that the ITO contained information that the CI is credible. The CI is a “registered human asset” of TPS, has provided significant information to TPS in the past which has proven reliable and which has been found to be “very accurate and credible.” It is also noted that the CI has a criminal record (not for perjury or obstruction related offences) and that the motivation is financial.
[72] The evidence concerning corroboration of the CI’s information comes from the TPS data base and surveillance. It confirms Mr. Marakah’s address and an earlier association with Winchester in May 2008 when the two of them, along with a group of males, were investigated for a drinking offence. There is no further evidence of corroboration in the unredacted ITO.
[73] There is no question that the information in respect of the corroboration of the CI’s information is weak. It is biographical and dated. Nevertheless, it is some evidence of corroboration of the CI’s information. And, when viewed with the strength of both the compelling information provided and the credibility of the CI, in my view, the information from the CI was more than sufficient to establish reasonable and probable grounds that Mr. Marakah committed the offences alleged.
Mr. Marakah’s Challenge to the Seizure and Search of his Phone
[74] Mr. Marakah submits that the police had no lawful authority to seize his Blackberry phone at his residence on November 6, 2012 and to subsequently search it as they did.
[75] The Crown relies on the Warrant to justify both the police’s seizure of Mr. Marakah’s phone and the subsequent search of it by Tech Crimes.
[76] Having already found that the Warrant was not valid, the police seizure and subsequent search of the phone cannot be justified.
[77] Further, and even if the Warrant was validly issued, in my view, the seizure of the phone (and its subsequent search) was not authorized by it, having regard to the wording of the Warrant.
[78] Item 6 of Appendix “A” to the Warrant which sets out the items to be searched for and seized (Schedule “A” herein) specifically excludes any cellular phone, Blackberry and other listed device found on the person of anyone found on the premises.
[79] The Crown submits that because the evidence establishes that at the moment the police breached the door of Mr. Marakah’s residence; his Blackberry was sitting on the computer table beside him and was not on his person. Nor was it on his person when he was arrested. It was on the floor. Accordingly, the Blackberry is not excluded from the items authorized to be seized by the Warrant.
[80] To determine this issue, it is necessary to resolve the factual differences earlier noted in the evidence concerning what occurred when the police entered Mr. Marakah’s residence on November 6, 2012. In that regard, I accept Mr. Marakah’s version of the events as they unfolded at the time of the police entry into his apartment and his arrest. I do not accept Officer Sukumaran’s evidence about what he saw. To be charitable, he clearly did not have a good recollection of what occurred. He remembered seeing the phone on the table but had no recollection of the arrest. He was clearly mistaken about there being an iPhone present in the residence. I was also not impressed that he had no information about the “possible” password for the Blackberry which he advised Tech Crimes about when he delivered the phone later that day. I did not find his evidence to be reliable.
[81] Based on the wording of the exclusion in Item 6 in Appendix “A”, the operable time to determine where the Blackberry was in the residence was when it was found, not when the police breached the front door. Based on Mr. Marakah’s evidence, I find that his Blackberry was on his person at the time he was arrested. It was in his hand when the police entered the room where he was. It only ended up on the floor because it was knocked from his hand by an officer.
Mr. Marakah’s Challenge to the Seizure and Search of Winchester’s iPhone
[82] Mr. Marakah submits that the November 6, 2012 seizure by the police of Winchester’s iPhone and the subsequent search of text messages on it that had been previously sent by him were unreasonable and a violation of his privacy rights in s. 8 Charter. The seizure and search of Winchester’s iPhone cannot be justified either pursuant to the warrants obtained dealing with Winchester or on the basis of search incident to arrest.
[83] The Crown submits that Mr. Marakah has no privacy interest in the text messages found in Winchester’s iPhone and accordingly has no standing to bring the Application. On the other hand, if the court determines that Mr. Marakah has standing to bring the Application, the Crown submits that the search of Winchester’s iPhone did not violate Mr. Marakah’s Charter rights. The iPhone was lawfully searched by the police incident to arrest. The Crown does not rely on the Winchester warrants to justify the search.
a) Standing
[84] In order to assert a s. 8 Charter right, the applicant must establish a reasonable expectation of privacy. See: R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128 (SCC) at paras. 33 and 39.
[85] A reasonable expectation of privacy is to be determined on the basis of the totality of circumstances. Factors to be considered in assessing totality of circumstances include: presence at the time of the search; possession or control of the property or place searched; ownership of the property or place; historical use of the property or item; the ability to regulate access, including the right to admit or exclude others from the place; the existence of a subjective expectation of privacy; and the objective reasonableness of the expectation: Edwards, at para. 45.
[86] Although Edwards dealt with territorial privacy, the “totality of the circumstances” test set out therein has subsequently been adopted and applied to determine other privacy interests, including informational privacy. See: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432 (SCC) at paras. 31 and 32; R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at para. 26. In Tessling, at para. 19, Binnie J. emphasized that the key factors to consider are the existence of a subjective expectation of privacy and the objective reasonableness of the expectation.
[87] Mr. Marakah’s assertion of a privacy interest in text messages he sent to Winchester invokes an assertion of informational privacy. Patrick dealt with informational privacy, specifically information contained in garbage. Paraphrasing the totality of circumstances test set out by Binnie J. at para. 27 of Patrick, it is necessary to address:
Whether Mr. Marakah had a direct interest in the contents of the text messages?
Whether Mr. Marakah had a subjective expectation of privacy in the text messages?
If so, whether the expectation was objectively reasonable?
Does Mr. Marakah Have a Direct Interest in the Text Messages?
[88] Mr. Marakah was the author of the text messages in issue. They contained details about his activities, albeit criminal, which were personal to him. In my view, Mr. Marakah had a direct interest in the text messages.
Did Mr. Marakah Have a Subjective Expectation of Privacy in the Text Messages?
[89] Binnie J. stated in Patrick, at para. 37, that the subjective stage test was not a high hurdle. The question is whether Mr. Marakah had or is presumed to have had an expectation of privacy in the information contained in the text messages.
[90] Mr. Marakah testified that the text messages he sent to Winchester dealt with gun trafficking. He expected them to be kept confidential by Winchester and said that he told him a number of times to delete the messages. Notwithstanding Mr. Marakah’s candor about the contents of his messages, I have some difficulty accepting his evidence that he expected the messages to be kept confidential. If that was the case, there would have been no need to tell Winchester to delete them. However, given the low hurdle and the subject matter of the messages, I am prepared to accept that Mr. Marakah had a subjective expectation of privacy in the text messages.
Is Mr. Marakah’s Expectation of Privacy in the Text Messages Objectively Reasonable?
[91] The search in issue here was of Winchester’s phone. There is no suggestion or evidence that Mr. Marakah had any ownership interest in or control over Winchester’s phone.
[92] The text messages in issue were sent by Mr. Marakah knowing that he had no control over what would happen to them once they reached Winchester’s phone. He obviously had some concern over what might happen to them, given his instruction to Winchester to delete them. Winchester was purchasing guns legally in large numbers which were subsequently re-sold illegally. Some were involved in criminal acts. Mr. Marakah is alleged by the Crown to have been buying guns from Winchester and reselling them. In such circumstances, it is reasonable to assume that at some point the police would trace the guns back to Winchester and that his phone may fall into the hands of the police.
[93] Mr. Marakah submits that in R. v. Duarte, 1990 150 (SCC), [1990] 1 S.C.R. 30, the Supreme Court of Canada rejected the notion that a reasonable expectation of privacy no longer exists because the recipient of a private communication may choose to disclose or disseminate it. Duarte dealt with the simultaneous interception of voice communication by the state. In my view, the risk that was considered and rejected in Duarte is much different than the risk that an intended recipient will forward the text to a third party. The message has already been recorded by the originator and is not being intercepted by the state. In my view, a text message, because it is written, is more akin to an email or letter than voice communication. And because it is sent to the recipient, it is completely beyond the control of the sender and entirely at the whim of the recipient.
[94] In R. v. S.M., 2012 ONSC 2949, [2012] O.J. No. 2833 (Ont. S.C.), Nordheimer J. held that an accused had a reasonable expectation of privacy in a text message sent to a recipient’s phone.
[95] Justice Nordheimer’s discussion of the standing issue in respect of the text massages in S.M. was in obiter. More importantly, in reaching his conclusion he did not utilize or refer to the Edwards factors in his analysis. Regardless and with the greatest of respect, I am unable to agree with his conclusion. Justice Nordheimer bases his conclusion on his view that text messages are much closer to telephone conversations than other forms of communication. In my view, however, the fact that there is a record of the message beyond the control of the sender makes them more akin to emails or letters than telephone conversations.
[96] Other decisions of this court have also rejected Nordheimer J.’s conclusion in S.M. that the originator has a reasonable expectation of privacy in a text message on the recipient’s cell phone. See: R. v. Pammett, 2014 ONSC 1213; R. v. Thompson, 2013 ONSC 4624.
[97] In Pammett, McCarthy J., following the Edwards factors, held that the applicant had no reasonable expectation of privacy to challenge the seizure of cell phones containing, among other things, text messages to and from the applicant. In rejecting Nordheimer J.’s conclusion, McCarthy J. stated at para. 8:
With the greatest of respect to my brother Nordheimer J., I am unable to agree with his conclusion that text messages generally carry with them a reasonable expectation of privacy. While it may be possible, in an appropriate case, for an accused to establish a reasonable expectation of privacy, this expectation should not, in the absence of some subjective evidence, apply to routinely exchanged text messages. Taking into account the factors as set out in Edwards, I am unable to find any indicia of ownership or possession by the Applicant of the text messages in question. One has to presume that the Applicant understood that, in sending a text message, he was surrendering the content of the message, in a written and permanent form, to another party. The party who receives the message on his or her device inherits, from that moment, the unfettered ability and means to preserve, forward or disseminate the message, and indeed to print or archive it.
[98] In Thompson, Himmel J. held that the applicant had no reasonable expectation of privacy in BBM messages (akin to text messages) that had been sent by him and were contained in the recipient’s Blackberry. The learned judge stated at para. 35 as follows:
35 As in the case of Edwards, supra, I conclude that the applicant had no reasonable expectation of privacy in the messages contained in the Blackberry phone seized from another person on that person's arrest for drug charges. Section 8 of the Charter is designed to protect a personal right that protects people and not places. I conclude, in the circumstances of this case, that it does not protect the text messages in the Blackberry phone, as the applicant did not have a reasonable expectation of privacy in them. Accordingly, the applicant has no standing to allege a breach of s. 8 and to seek the exclusion of the evidence obtained as a result of information obtained in the BBM messages that he had exchanged with the arrested male and stored on the arrested male's phone.
[99] Mr. Marakah relies on the statements of Abella J. in R. v. Telus Communications Co., 2013 SCC 16, [2013] 2 S.C.R. 3, to the effect that text messages are like voice communications and are made under circumstances that attract a reasonable expectation of privacy.
[100] Telus considered whether a general warrant under the Criminal Code could be used to authorize the prospective daily production of text messages stored on a computer database maintained by a service provider. The case did not involve text messages on the recipient’s phone. Nor did it consider the issue of standing of the sender where the text messages were in the hands of the recipient.
[101] I do not consider that the reasoning in Telus changes my analysis. I accept that the sender of a text message has a reasonable expectation of privacy in its contents after it has been sent but before it reaches its intended destination. This would include text messages stored in a service provider’s data base. Once the message reaches its intended recipient, however, it is no longer under the control of the sender. It is under the complete control of the recipient to do with what he or she wants. In my view, there is no longer any reasonable expectation of privacy in the sender.
[102] Nor do I consider that by telling Winchester to delete the messages, Mr. Marakah created some obligation of confidentiality on Winchester’s part. Mr. Marakah acknowledged he couldn’t control what Winchester did with his phone and that he realized he was taking a risk sending the messages.
[103] The police obtained possession of Winchester’s phone upon his arrest. There is no issue and the evidence establishes that the police clearly had reasonable and probable grounds for his arrest. Although I will deal with the search in more detail shortly, I do not consider that the police technique was intrusive or their actions objectively unreasonable.
[104] Having regard to the circumstances of this case, therefore, I am unable to conclude that Mr. Marakah’s expectation of privacy in regards to his text messages on Winchester’s phone was objectively reasonable. Accordingly, I hold that Mr. Marakah had no reasonable expectation of privacy in respect of the text messages on Winchester’s phone and therefore has no standing to bring a s. 8 Charter challenge concerning the search of Winchester’s phone.
b) The Reasonableness of the Search
[105] Although I have concluded that Mr. Marakah has no standing to challenge the reasonableness of the search of Winchester’s phone by the police, I will go on briefly to consider it.
[106] The Crown relies on the police power to search incident to arrest to justify its search of Winchester’s phone.
[107] The police have the power to search incident to a lawful arrest in order to ensure the safety of the officers and the public and to discover and/or preserve evidence. The police do not need reasonable and probable grounds, but the arresting officers must have a valid purpose in mind when conducting the search incident to arrest and there must be some reasonable basis for the search. See: R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51 at para. 25.
[108] While Winchester’s iPhone was seized from him at the time of his arrest, there is no evidence it was searched at that time. It was only when it was returned to 42 Division approximately two hours later that Officer Wilson, the officer in charge, actually looked at the phone. He looked at the text messages and when he saw texts between Winchester and another person who he understood was Mr. Marakah, he immediately arranged for Officer Frigon to photograph them. Later the same day, the iPhone was delivered to Tech Crimes where it was thoroughly analyzed.
[109] I am unable to conclude from the evidence that the search of Winchester’s iPhone at 42 Division was a search incident to arrest. The Crown submits that the reason the phone was not looked at until it was returned to the station was because the arresting officers were otherwise engaged in executing the search warrants for Winchester’s car and his girlfriend’s residence. There is no evidence from the arresting officer concerning why he seized the phone. Nor is there any evidence of the searches themselves, what they entailed and the officers involved to enable me to reach such a conclusion.
[110] I also have a concern with the evidence as to how long after Winchester’s arrest before his iPhone was looked at by Officer Wilson. He said he was not sure when or from whom he received the phone.
[111] The Crown relies on R. v. Miller, (1987) 1987 4416 (ON CA), 23 O.A.C. 32; [1987] O.J. No. 989 (Ont. C.A.) and R. v. Fearon, 2013 ONCA 106; [2013] O.J. No. 704 (Ont. C.A.) to support its submission that the delay between the seizure and the search does not invalidate a search incident to arrest. In both those cases there was a substantial delay between the arrest and seizure and the search giving rise to the challenge.
[112] I accept that the search does not have to be contemporaneous with the arrest to be a valid search incident to arrest. Time and distance may elapse from the arrest. Whether the search, when it occurs, can still be considered a search incident to arrest depends on the circumstances of the case.
[113] As noted, in this case there is no evidence from the arresting officer or another officer who was at the scene as to why Winchester’s phone could not have been searched at the time of arrest and at least rendered safe. Nor is there any evidence of why the delay of more than two hours occurred before the phone was looked at. Accordingly, in the absence of evidence and given the time period and distance which had elapsed since the arrest, I am not prepared to find that the search of Winchester’s phone was incident to his arrest.
Section 24(2) of the Charter
[114] As a result of my conclusion that the Warrant was invalid, the search of Mr. Marakah’s residence infringed Mr. Marakah’s s. 8 Charter rights, It is necessary to consider whether the evidence obtained from the search should be excluded pursuant to s. 24(2) of the Charter.
[115] The s. 24(2) analysis involves the consideration of the three factors outlined in Grant: the seriousness of the Charter infringing state conduct; the impact of the breach on the Charter protected interests of the accused; and society’s interest in the adjudication of the case on its merits.
[116] I do not consider, on the evidence, that there was any bad faith on the part of the officers involved in obtaining the Warrant. While the items to be searched for were much too broadly drawn, I am not prepared to find that it was as a result of a systemic practice in TPS.
[117] Similarly, I do not find that there was any bad faith or improper behavior by the officers in carrying out the search. The breach of the door and the arrest of Mr. Marakah were reasonable, in my view, given the information which the officers had concerning Mr. Marakah’s activities. While I was less than impressed with Officer Sukumaran’s evidence, I attribute it more to faulty recollection than credibility.
[118] That said, forced entry into a person’s residence followed by a thorough search without lawful authority is very serious matter.
[119] Turning to a consideration of Mr. Marakah’s interests, there is no question that the search of his residence represented a significant intrusion on his right to privacy. A person is entitled to be safe, secure and free from state interference inside their home except upon lawful authority. Further, the search of Mr. Marakah’s residence was extensive. As I have held, based on Appendix “A” of the Warrant, it involved searching almost everything in the apartment. Suffice it to say that I consider the impact on Mr. Marakah’s Charter rights to be significant.
[120] The last consideration is society’s interest on the adjudication on the merits. Given the seriousness of the offences involved there is no question that society has a significant interest in adjudication of the charges against Mr. Marakah on the merits.
[121] I do not understand, however, that the evidence in issue is crucial to the Crown’s case. The only evidence of what was seized pursuant to the Warrant in Mr. Marakah’s residence was Mr. Marakah’s phone, a computer and a thumb drive. The key evidence the Crown seeks to adduce at trial from what was seized are the text messages which Tech Crimes recovered from Mr. Marakah’s phone. However, the text messages in question are also on Winchester’s iPhone and I have held that Mr. Marakah has no standing to challenge its seizure under the Charter. Accordingly, I do not consider that exclusion of the evidence in issue would result in the termination of the Crown’s case.
[122] Having regard to all of the three factors discussed above, it is my conclusion that the admission of the evidence seized in Mr. Marakah’s residence at trial would bring the administration of justice into disrepute. Accordingly, the evidence from what was seized at Mr. Marakah’s residence pursuant to the Warrant shall be excluded.
[123] As I have found, and apart from the fact that the Warrant was invalid, the seizure of Mr. Marakah’s phone cannot be justified under the Warrant based on its wording (Paragraph 6, Appendix “A”). Nor did the Crown seek to justify its seizure and subsequent search as a search incident to arrest. Accordingly, apart from the Warrant, the seizure and subsequent search of Mr. Marakah’s phone was a breach of his s. 8 Charter rights.
[124] In my view, the above s. 24(2) analysis concerning the execution of the Warrant applies equally to the seizure of Mr. Marakah’s phone. Accordingly, I would also exclude from evidence the information found by Tech Crimes on his phone.
Conclusion
[125] For the above reasons therefore, the following are my conclusions with respect to the three parts of Mr. Marakah’s Charter Application:
Mr. Marakah’s s. 8 Charter challenge to exclude from evidence the items seized by the police during the search of his residence on November 6, 2012 is allowed and the evidence is excluded pursuant to s. 24(2) of the Charter;
Mr. Marakah’s s. 8 Charter challenge to exclude evidence obtained from his phone that was seized from him by police at the time of his arrest on November 6, 2012 is also allowed and the evidence is excluded pursuant to s. 24(2) of the Charter; and
Mr. Marakah’s s. 8 Charter challenge to exclude the evidence of his text messages found by the police on Andrew Winchester’s phone on November 6, 2012, is dismissed.
[126] I would like to express my thanks to counsel for their valuable assistance in dealing with the difficult issues raised in this Application.
L. A. Pattillo J.
Released: September 17, 2014
Schedule “A”
ITEMS TO BE SEARCHED FOR, AND SEIZED:
Firearms
Ammunition
Firearm(s) documentation and records, including any document relating to ownership, licensing and authorizations for any person, registration of any firearm, and any firearm manual or instructions.
Any document or record, whether in hard copy or for electronic access, which contains any personal identifier such as a name and/or address or other characteristic which evidences an association or a lack of association with the premises, including evidence relating to the use, possession, and/or control of the premises and the things listed above in paragraphs 1. and 2., or anything containing such a document or record.
A document or record evidencing association or non-association with the premises and with said things to be searched for includes any:
a. deed, mortgage, rental agreement, rental notice, and any related bill, payment receipt, and correspondence
b. repair bill, receipt, and related correspondence
c. utility bill, receipt, and related correspondence
d. document or record containing contact or identification information, including any:
i. identification or identification card
ii. drivers licence
iii. passport
iv. SIN card
v. medical service or insurance card
vi. membership card
vii. document and record which is correspondence including any letter, greeting card, email (including any attachment), text message, or facsimile transmission – whether draft, attempted, sent, missed or received
viii. banking document or record, including any:
ix. ATM receipt, ATM or banking card
x. bank statement, and related correspondence
xi. credit card, and related statement, receipt, and bill
xii. cheque book, stub, duplicate cheque, record of cheques
xiii. financial document or record, including any:
xiv. taxation document, bill or receipt, and any related correspondence
xv. employment or business document or record
xvi. telephone document or record, including any related bill, receipt or correspondence, and including any document or record containing any list of communications outgoing, attempted, missed or received, any telephone number, electronic serial number (ESN), email account, or similar identifying information in any communication device
xvii. text message, email, Blackberry PIN, pager message or similar document or record, including any related bill, receipt or correspondence, and including any document or record containing any list of communications outgoing, attempt, missed or received, and any PIN number, electronic serial number (ESN), email account, or similar identifying information in any communication device
xviii. address/phonebook, diary, personal organizer or calendar, contact list
xix. mail delivery confirmation, shipping document, received mail, outgoing mail with a return address or contact information
xx. Any photo or image showing an association or non-association with the premises and/or things to be searched for items 1 and 2 (above).
AUTHORIZED TO BE SEIZED TO SEARCH FOR THE ABOVE:
- To be clear, where not found on the person of anyone on the premises:
Any cellular phone, pager, Blackberry, PDA (personal digital assistant) tablet computer (ex. iPad), computer, or similar electronic device, USB or ‘thumb’ drive, portable or removable hard drive, fixed hard drive, compact disk (CD), digital video disk (DVD), electronic memory card or other storage media for electronic retrieval of any document or record for on or off site examination for any document or record described in paragraph 4.
- Personal items and labelled items which evidence an association or lack of association by any person with the premises and/or anything to be searched for listed in 1. and 2., above, including any:
a. clothes, including footwear
b. glasses
c. anything bearing a name and/or address label
d. distinctively identifying or engraved jewellery or watch
e. luggage, backpack, purse, briefcase or carrying case
f. prescription medicine
g. toothbrush, hairbrush, toiletries, or other potential source of DNA
- Any document or record which shows a connection between Andrew WINCHESTER and a 2009 Mitsubishi LGT (black) with Ontario Licence Plate number BKEM164 including any:
a. Rental agreement
b. Gas receipts
c. Repair receipts
d. Traffic tickets
e. Parking receipts
- Any document or record which shows a connection between Nour MARAKAH, Andrew Winchester and/or Justin GREEN including but not limited to any:
a. Phone log
b. Electronic message
c. Hand written message
d. Photograph
Any document or record which shows a financial transaction record between Nour MARAKAH Andrew WINCHESTER, Justin GREEN and/or any unknown member of this criminal organization for the purpose of trafficking firearms.
Any and all grinding equipment and items that can scrape metal consistent with the removal of a firearm’s serial number.
Metal flakes, dust and/or residue that is consistent with the removal of a firearm’s serial number.
Any and all documents pertaining to the removal of a firearm’s serial number (including instructional material).
COURT FILE NO.: 13-30000622-0000
DATE: 20140917
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and –
NOUR MARAKAH
REASONS FOR JUDGMENT
L. A. PATTILLO J.
Released: September 17, 2014