ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1-623296
DATE: 2014/11/20

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

JOHNNY FEENEY
Applicant

A. Francis & K. Yeh, for the Crown

P. Genua & N. Jamaldin, for the Applicant
S. Wilmot, for the Toronto Police Service
J. Wilkinson, for D.M., who was granted standing

HEARD: October 17 & 20, 2014

RULING

GARTON J.:

[1] The applicant, Johnny Feeney, seeks further disclosure beyond that which the Crown has already provided.

[2] The issue to be determined is whether the application must by brought in accordance with the two-stage procedure set out in R. v. O’Connor (1995), 1995 51 (SCC), 103 C.C.C. (3d) 1 (S.C.C.), or pursuant to the lower threshold for disclosure set out in R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326.

[3] Mr. Feeney is charged with the following offences:

1. That he and Bayan Mirian (“Mirian”) conspired one with the other and with persons unknown to traffic in cocaine between October 1 and November 22, 2011;

2. That on November 22, 2011, Mr. Feeney was in possession of cocaine for the purpose of trafficking. This charge relates to 264 grams of cocaine located by police in a knapsack during the execution of a search warrant at Mirian’s condominium at 550 Queens Quay, Unit 927. Mr. Feeney and Mirian, both of whom were in the Unit at the time of the search, were arrested on that date.

3. That on November 22, 2011, Mr. Feeney was in possession of Canadian currency in an amount exceeding $5000, knowing that it was the proceeds of crime. This charge relates to $39,100 in cash found in the same knapsack that contained the 264 grams of cocaine.

4. That on November 22, 2011, Mr. Feeney was in possession of cocaine for the purpose of trafficking. This charge relates to 7 grams of cocaine in a gym bag and 381 grams of cocaine in another bag that was seized from a bedroom during the execution of a search warrant at 403-57 Charles Street. Mr. Feeney and a male referred to in these proceedings as M.C. had moved into this apartment a short time prior to the warrant being executed.

5. That on November 22, Mr. Feeney was in possession of Canadian currency in an amount not exceeding $5000, knowing that it was the proceeds of crime. This charge relates to $1870 in cash, which was in the gym bag containing the 7 grams of cocaine at 57 Charles Street. Mr. Feeney’s identification documents were also in the gym bag. Several pounds of cutting agents, drug packaging, and a debt list were also seized during the execution of the warrant.

[4] M.C., a former Court Officer with the Toronto Police Service, was arrested and charged with the offences listed in 4 and 5 above, on November 22, 2011. On May 22, 2102, the Crown stayed the charges against him.

[5] The charges against Mr. Feeney were the result of a large-scale drug investigation by the Durham Regional Police Force – Drug Enforcement Unit (“DRPS”). The investigation was nicknamed “Project Gladiator.” Fuerst J. granted authorizations to intercept private communications on July 29 and September 23, 2011. Alireza Kharizfar (“Kharizfar”) was a named target in both authorizations. Mirian was a named target in the second authorization. Mr. Feeney was not named as a known target in either authorization.

[6] Mirian was identified during the investigation as being one of several drug suppliers to Kharizfar. Investigators believed that Mirian was supplying Kharizfar with cocaine. Kharizfar and Mirian were also allegedly involved in organizing a shipment of one ton of GHB (date rape drug) to Montreal.

[7] During the investigation, the DRPS intercepted a call in which Kharizfar indicated that Mirian’s cocaine supplier was a police officer with 14 Division. In another call, Kharizfar told an unknown male that he had purchased cocaine from a 14 Division officer. About a week later, a drug-related conversation between Mirian and the male that the Crown alleges is Mr. Feeney was intercepted. A comment made by a person in the background – “Let me get a staff sergeant for you” – suggested that the male was at a police station. As a result of these calls, the DRPS notified the Toronto Police Service (“TPS”) Professional Standards Division, who then became involved in the investigation.

[8] The Crown has disclosed to the defence some but not all of the material obtained by the TPS during its investigation. The material sought by the defence pursuant to this application includes the following:

1. All data, including text messages, received by the TPS pursuant to a production order with respect to M.C.’s cell phone number 416 – 910-2599.

2. All data, including text messages, received by the TPS pursuant to a production order with respect to cell phone number 416 – 303-0237. This number is attributed to D.M., a 14 Division police officer who was investigated by the TPS as potentially being the officer referred to by Kharizfar in the wiretaps and who was supplying Mirian with cocaine. The Crown has advised that D.M. was later “cleared” by the TPS and was never charged with a criminal offence arising from Project Gladiator.

3. The complete TPS Professional Standard’s investigative file in regards to the investigation (as it relates to Project Gladiator) of M.C.

4. The complete TPS Professional Standard’s investigative file in regards to the investigation (as it relates to Project Gladiator) of D.M.

[9] The first two items – the data from the production orders regarding M.C.’s and D.M.’s cell phone numbers – have been provided to the Crown by the TPS. That data includes incoming and outgoing calls and cell tower information. With respect to the text messages, Crown counsel advised that most telecommunications service providers, with the exception of TELUS, do not store text messages. This fact was the subject of comment in R. v. TELUS Communications Co., 2013 SCC 16 at para. 7. Since D.M.’s service provider was Rogers, no text messages were gathered with respect to his cell phone.

[10] Crown counsel advised that 400 pages of text messages were gathered in relation to M.C.’s cell phone, for which the service provider was TELUS. The Crown acknowledges that the data harvested from the “M.C.” production order is likely relevant with respect to the charges arising from the seizure of cocaine and money from 403-57 Charles Street, where M.C. and Mr. Feeney were residing. However, the Crown submits that it is “clearly irrelevant” with respect to the conspiracy charge.

Position of the Parties

[11] The Crown, as well as counsel for the TPS and D.M., take the position that the data from both production orders constitutes third party records and should only be disclosed in accordance with the procedure in O’Connor. They take a similar position with respect to the TPS investigative files of M.C. and D.M. relating to Project Gladiator. The TPS has not provided those files to the Crown. However, in order to expedite matters, counsel for the TPS brought to court, under seal, all the records that are the subject of this application. They remained sealed pending my ruling as to whether disclosure should be ordered.

[12] The Crown, in support of its position that the items sought are third party records, relies on the principle that the Crown and police are separate entities. The Crown submits that it has neither possession nor control of M.C.’s and D.M.’s investigative files and that the TPS will not release the information upon request.

[13] The Crown, the TPS and counsel for D.M. take the position that the records relate to internal investigations made under the Police Services Act with respect to two unrelated parties, M.C. and D.M. They therefore contend that the records do not fall within the Crown’s Stinchcombe disclosure obligations. M.C. and D.M. did not play a role in this investigation, were not involved in gathering evidence against Mr. Feeney, and will not be called as Crown witnesses. Both M.C. and D.M. have a privacy interest in the records. It was further submitted that the investigation of D.M. was unrelated to the investigation of Mr. Feeney.

[14] The position of the defence is that all four items sought are the fruits of the TPS’s investigation of Mr. Feeney. In terms of the relevance of the items relating to M.C., the defence points out that M.C. was originally co-accused with Mr. Feeney on two of the charges before the court; namely, the counts with respect to the cocaine and money seized from their apartment. The defence intends to hold the Crown to its burden with respect to proving beyond a reasonable doubt that Mr. Feeney had knowledge and control of the cocaine and money. M.C. who leased the apartment in which he and Mr. Feeney live, is automatically an alternate suspect in regards to what was found at the residence. No formal application pursuant to R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, is required. The defence submits that any material in the hands of the TPS that is part of their criminal investigation into M.C., as it relates to Project Gladiator, is therefore relevant and is part of the investigative file with respect to Mr. Feeney.

[15] The position of the defence is that the material sought with respect to D.M. is also relevant to an alternate suspect defence and that it is part of the fruits of the investigation. Although the Crown alleges that Mr. Feeney was Mirian’s cocaine supplier, the TPS also criminally investigated D.M. as the source of Mirian’s cocaine. In answer to the Crown’s submission that Mirian could have had more than one cocaine supplier, defence counsel submits that that is ultimately a question for the jury to decide. The defence notes that even if the surveillance and wiretap evidence strongly suggests that Mr. Feeney and Mirian were involved in drug dealing activity, it does not necessarily lead to the conclusion that Mr. Feeney was supplying Mirian with cocaine. Mirian was known to be dealing in other drugs. This became apparent during the execution of general warrants at his residence over the course of the investigation. On the day of his arrest, 340 grams of GHB was found in his freezer. Furthermore, when Kharizfar was interviewed by the TPS on the day of his arrest, he stated that Mr. Feeney was not the 14 Division police officer about whom he had spoken during the intercepted calls. Mr. Feeney had, however, sold Ecstasy to Kharizfar.

(continues exactly as in the decision through paragraph [98] and the concluding release lines)

GARTON J.

Released: November 20, 2014

COURT FILE NO.: 1-623296
DATE: 2014/11/20

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN
Respondent

– and –

JOHNNY FEENEY
Applicant

RUling

GARTON J.

Released: November 20, 2014