ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. Alexis, Funes and Kelly, 2015 ONSC 1603

COURT FILE NO.: CRIM J (P) 479/13

DATE: 2015 03 13

B E T W E E N:

HER MAJESTY THE QUEEN

R. Alexander Cornelius for the Crown

Respondent

and -

MARCUS ALEXIS, BRIAN FUNES

AND KMAR KELLY

Adele Monaco for Marcus Alexis; Mary Cremer for Brian Funes, and Cydney Israel for Kmar Kelly

Applicants

HEARD: December 1, 3, 4, 5

and 8, 2014

RULING – Re: Section 8 & 24(2) of the Charter of Rights and Freedoms to Quash the Part VI Authorizations to intercept private communications

and to exclude any evidence obtained

Information contained herein is prohibited from publication by order of The Honourable Mr. Justice Joseph Michael Fragomeni

Fragomeni J.

[1] The Applicant, Brian Funes seeks a remedy for the violation of his Section 8 Charter rights which resulted in the issuance of two Part VI authorizations to intercept private communications of targeted individuals issued by the Honourable Mr. Justice Durno on December 12, 2011 and February 9, 2012.

[2] The Applicant seeks an order quashing those authorizations and excluding the evidence obtained pursuant to Section 24(2) of the Charter.

OVERVIEW OF THE ALLEGATIONS

[3] The Applicant, along with his co-accused and other individuals, are alleged to be involved in a robbery using a firearm of a banquet hall called “Rozz Restaurant and Entertainment Complex,” located at 200 Advance Boulevard, Unit 20, Brampton, Ontario, on April 16, 2011. During the course of this robbery, Mr. Sam Parker was injured and Mr. Kearn Nedd was shot to death.

[4] In the course of their investigation of the robbery and shooting of April 16, 2011, the Peel Regional Police identified Mr. Gabriel Owusu (“Owusu”) as a potential suspect. Owusu had presented at the Trillium Hospital in Mississauga with a gunshot wound in his back. After giving a false name and misleading physicians and Peel Regional Police officers about his identity for several hours, Owusu admitted his true identity and told police that he had lied about his name because he was on the run. Owusu was placed under arrest.

[5] In the course of their arrest of Owusu, Peel Regional Police officers seized his cell phone, among other items.

[6] On April 18, 2011, a telewarrant search warrant was obtained for a search of the contents of Owusu’s cell phone seized at the Trillium Hospital. This included text messages, call details, photos, and any and all details.

[7] Based on the information obtained from the aforementioned telewarrant, the investigators obtained a number of Production Orders and tracking recorder numbers concerning the cell phone activity of a number of individuals, including the Applicant, as well as a tracking recorder warrant for the vehicle believed to belong to the Applicant.

[8] On December 12, 2011, the investigators applied for and obtained a Part VI authorization to intercept the private communications of numerous targeted individuals, including the Applicant. In addition, further applications were sought including:

(a) Application for a one-person consent authorization to intercept communications;

(b) A consent general (video) warrant to make observations by means of video camera or other similar electronic devices where one of the persons has consented;

(d) A production of telephone records order;

(e) A general warrant;

(f) A tracking warrant; and

(g) Assistance Order.

The affiant in support of this application was Police Constable Kurtis Vaughan. The application was granted by the Honourable Mr. Justice Durno of the Superior Court of Justice on December 12, 2011.

[9] On February 9, 2012, the investigators sought a subsequent Part VI authorization to intercept private communications. The affiant of the information to obtain was again Police Constable Kurtis Vaughan. This authorization of February 9, 2012, was a renewal and expansion of the original authorization of December 12, 2011.

[10] On April 4, 2012, the investigators sought a subsequent Part VI authorization to intercept private communications. The affiant of the information to obtain was again Police Constable Kurtis Vaughan. This authorization of February 9, 2012, was a renewal and expansion of the two preceding authorizations.

[11] The information to obtain with respect to the three authorizations (December 12, 2011; February 9, 2012; and April 4, 2012) adduced evidence in support of the applications from various sources, including:

(a) The use of a state agent, Nirmalan Satkunananthan (“Satkunananthan”);

(b) The investigation and arrest of S.G. (“S.G.”);

(d) Results of forensic testing from the Centre of Forensic Sciences (“CFS”);

(e) The Applicant’s criminal record and reputation;

(f) The investigation and arrest of the Applicant and Joseph Magdangal (“Magdangal”) for firearms offences on February 22, 2012.

[12] The Applicant brought an application for leave to cross-examine the Affiant of the Information to Obtain. I granted leave to cross-examine in those areas set out in his factum. Those areas were set out in my earlier ruling permitting cross-examination as follows:

RE: NIRMALAN SATKUNANANTHAN

i) What drew Nirmalan Satkunananthan to the attention of the police on June 22, 2011? What was the nature of the discussions that occurred between Cst Duncan, Cst Devlin and agent of the state Nirmalan Satkunananthan when police arrived at his residence on June 22, 2011? How long did police spend questioning Nirmalan at his residence? Why did police want Nirmalan to come down to the police station to give a statement? What was said to Nirmalan to get him to come down to the police station to give a statement? Was Nirmalan escorted to the police station by officers or did he attend by himself? If he was escorted what conversation ensued between Nirmalan and the police on the way to the police station?

ii) Why was the audio statement of June 22, 2011 not included in the first authorization?

iii) Since Nirmalan Satkunananthan lied and misled officers in his audio taped statement of June 22, 2011, what prompted the police to turn him into an agent of the state? When did police first approach Nirmalan about being an agent of the state? Who approached Nirmalan? What was said to Nirmalan? Were these interactions recorded either in written format, audio or video taped? If so, how were these interactions recorded? If not, why were these interactions not recorded? How many meetings occurred between Nirmalan and the police before Nirmalan agreed to become an agent of the state?

iv) Since Nirmalan lied and misled officers in his audio taped statement of June 22, 2011. what was it that led police to believe that they could be assured of his reliability? What steps did police take to ascertain his credibility and reliability?

v) In the audio taped statement of Nirmalan to Cst King on August 3, 2011, what discussions occurred before recording the interview? At what point did police become aware that Nirmalan was present at the poker tournament? What prompted the change in Nirmalan’s version of the events from June 22, 2011 to August 3, 2011?

vi) Were there any occasions where police met with Nirmalan between June 22, 2011 to August 3, 2011? If so, what was said? Were any of these meetings recorded?

vii) At the end of the audio taped statement of Nirmalan and Cst Philip King on August 3, 2011 Nirmalan indicates to the officer that he does not want anyone to know that he is at the police station. Cst King says he will deal with that concern off camera. What is said between Nirmalan and Cst King after the conclusion of the audio taped interview on August 3, 2011?

viii) During the audio taped interview of August 3, 2011, Cst King asks Nirmalan about the nature of his gambling debts and he advises that the police could assist him with those debts — what assistance would the police offer Nirmalan? How did Nirmalan know prior to the interview of August 3, 2011 that the police could help him with his debts? What did the police believe was the amount of debt that Nirmalan had accumulated? Did Nirmalan communicate any concerns about his physical safety or overall well-being in regards to his debts? Did police ever end up paying some or all of Nirmalan’s debts as part of the consideration in acting as agent of the state?

ix) When did discussions about an immunity agreement first start with Nirmalan and the police? Who brokered those discussions?

x) Did police review the intercepts of Nirmalan’s meetings when he was on assignment by police? When Nirmalan failed to disclose to officers the entirety of what he discussed with the targets when he was in a debriefing interview, why did police continue to use him as an agent? If the affiant articulated concerns about the truthfulness of the agent, why was he continued to be used as agent of the state?

RE: ANDY OWUSU

i) What investigative measures were taken that assured police Andy Owusu was in British Columbia at the time of the murder of Kearn Nedd? How did police confirm Andy Owusu had checked in with his probation officer before and after the murder? What were the dates? Did police conduct an actual interview with the probation officer or did they rely upon paperwork? Did Andy Owusu meet in person with his probation officer or did he check in by telephone?

ii) If police concluded that Andy Owusu was not a suspect and was not involved in the Nedd homicide why were the police waiting at Pearson airport when Andy Owusu arrived in Toronto on May 2, 2011? Why was Andy Owusu escorted back to the airport by police on October 11, 2011?

iii) During the time that Andy Owusu was in Ontario from May 2, 2011 to October 11, 2011, were police following him? Did he in fact stay at his mother’s house for the entire duration of his visit or did he stay at the residence of other people? Did he ever stay at the residences of S.G.? Did Andy Owusu and Gabriel Owusu stay together and / or travel around together while Andy Owusu was in Ontario?

iv) What charges did Andy Owusu get arrested for during his visit in Ontario from May 2, 2011 to October 11, 2011? When was he arrested? How long was he incarcerated? What led to his release such that he boarded a plane on October 11, 2011?

v) What was the purpose of Andy Owusu’s visit from May 2, 2011 to October 11, 2011?

RE: JOSEPH MAGDANGAL

i) When Joseph Magdangal is arrested for possession of the firearm on February 22, 2012 after the execution of a search warrant on his residence he gave a statement to police. In this statement he told the officer that the gun belongs to Brian Funes and that he was storing the firearm for him at his house. Joe Magdangal was released on bail. Did any police officer speak to Joe Magdangal before he gave his videotaped statement? If so, what was said? Were any of these discussions recorded either in written form or otherwise? If not, what was the reason? Was Magdangal ever promised immunity from being implicated in the Nedd homicide prior to giving his videotaped statement? Was Magdangal ever promised bail was he promised assistance in getting bail prior to giving the videotaped statement of February 22, 2012?

ii) Did police ever get involved in the resolution discussions when Joe Magdangal pled guilty to possession of a firearm before the Honourable Justice McLeod where he was sentenced to nine months in custody?

S.G.

i) When was it decided that the Peel Police and the Hamilton police would work together in the execution of the search warrants involving S.G. in Hamilton and Mississauga?

ii) When S.G. tells Cst Langdon and Cst Lennon during his statements on and off camera on June 9, 2011 that the firearms located in the storage lockers belong to Andy Owusu, did police conduct a parallel investigation into this? Did police subject Andy Owusu to any police surveillance since he was in Ontario during the time of the arrest of S.G.? Did police make any efforts to obtain a separate Part VI authorization for the cell phone of Andy Owusu while he was present in Ontario from May 2, 2011 to October 11, 2011? What were the results of these investigations?

iii) When S.G. offers to work with the police and provide them with information on homicides in the area do police ever use S.G. either as an agent or as a civilian witness for this purpose?

CROSS-EXAMINATION OF CONSTABLE KURTIS VAUGHAN

[13] Constable Vaughan testified that not only was he the affiant of the Information to Obtain but he was also one of the investigative officers as well. As the affiant of the Information to Obtain, he relies on others to provide him information.

[14] A civilian agent, in this case Nirmalan Satkunananthan (Nirm) was utilized in an effort to get closer to the suspects or other people to further the investigation and/or solve the crime.

[15] The agent handler was Officer Zucchero. Constable Vaughan testified that he was a co-handler of Nirm.

[16] Constable Vaughan confirmed that Nirm gave a number of statements to the police. His first statement was given on June 22, 2011. Other statements were given on August 3, 2011, September 27, 2011, October 12, 2011 and November 3, 2011.

[17] At the time of the first Information to Obtain the police theory was that Gabriel Owusu and Brian Funes were directly involved as the main perpetrators. The identity of the shooter was still unknown.

[18] The first statement by Nirm is made on June 22, 2011. It was a lengthy statement. Constable Vaughan knew that Nirm had lied to the police on June 22, 2011 about being at the Rozz and any involvement in the murder.

[19] Constable Vaughan confirms that he stated in the first Information to Obtain that Nirm initially lied to police without referring to the June 22, 2011 statement at page 29 of the Information to Obtain. On page 29 of the Information to Obtain specifies or details of the lies were not set out.

[20] Constable Vaughan testified that after the June 22, 2011 statement Nirm did provide further statements that were credible and corroborated.

[21] Constable Vaughan acknowledged that Nirm became an agent after the August 3, 2011 statement.

[22] Constable Vaughan did not inquire as to why Nirm was made an agent. He trusted the OIC and MCM in their decision to make Nirm an agent.

[23] Constable Vaughan testified that at page 90 of the Information to Obtain specifics of Nirm’s lies are set out for the issuing justice. Nothing really came of the June 22, 2011 statement so he did not go into all the details of the lies. On August 3, 2011 Nirm does provide truthful information. Nirm, over time, was becoming credible and reliable.

[24] Constable Vaughan testified that at no time was he misleading the issuing justice.

[25] With respect to Nirm’s debts, Constable Vaughan was of the view that the area of inquiry was not relevant or important to the Information to Obtain so he did not conduct follow-up inquiries in that area.

[26] Nirm had never expressed any concerns about his safety as a result of whatever debts he had. Nirm had poker debts of $2,000 and the police never paid any of his debts.

[27] With respect to the second Information to Obtain, Constable Vaughan acknowledged that prior to the drafting of the second Information to Obtain, Nirm was not being truthful at the debriefing following an intercept. The debriefing did not match the content of the intercept. Constable Vaughan and Constable Zucchero recognized this was something they had to address with Nirm and they did. As a result Constable Vaughan did not include any of those concerns in the second Information to Obtain.

[28] On February 2, 2012 Nirm came clean although on February 1, 2012 Nirm did minimize his involvement.

[29] Constable Vaughan denies he left out these concerns with respect to Nirm in the Information to Obtain to bolster Nirm’s credibility. The concerns were set out in the overview of the investigation so the issuing Justice would not have been misled.

RE: INVESTIGATION OF ANDY OWUSU AND S.G.

[30] Constable Vaughan was asked about the investigation of Andy Owusu and S.G. The cross-examination in these areas revealed the following:

• He had no idea when the Hamilton police or the Peel police decided to work together as it related to S.G.

• At paragraph 96 of the first interview there is no mention of Constable Lennon and Constable Langdon’s interview of S.G. Constables Lennon and Constable Langdon are in guns and gangs not homicide so it was not included in the Information to Obtain.

• With respect to the S.G. interview on June 9, 2011 there is no mention that at the time of the interview S.G. was in custody or under arrest for firearms offences. He did not include this in the Information to Obtain as it was not related at that time to the homicide investigation. Constables Lennon and Langdon were investigating these firearms offences not the murder.

• Constable Vaughan did not specify at paragraph 96(1)(c) that the search warrant was in relation to S.G.’s residence and storage lockers. He did not include all of the details in the first Information to Obtain because the information provided by S.G. was not accurate and was proved false. It was discounted.

• The CFS report relating to the firearms were not included in the Information to Obtain as the results were not relevant to the grounds for the first Information to Obtain. The results were too broad. All it established was that Alexis handled a firearm. Until it was proven ballistically that there was a match it was not relevant.

• By the January 2012 CFS report the murder weapon is one of the weapons located at S.G.’s storage locker.

[31] With respect to Andy Owusu, further inquiries or investigations were not done as Andy Owusu was eliminated as a suspect. The reasons why he was eliminated as a suspect are clear in the Information to Obtain at paragraph 117. As a result of Andy Owusu being eliminated as a suspect any other information relating to him was not relevant to the grounds for the Information to Obtain.

POSITION OF THE APPLICANT:

[32] The applicant grounds his position on the following:

(a) The Information to Obtain did not contain the full context of the circumstances surrounding the evidence derived from state agent Nirmalan Satkunananthan.

(b) The Information to Obtain did not contain the full context of the circumstances of the investigation and arrest of S.G..

POSITION OF THE CROWN:

[33] The position of the Crown was set out by me in my ruling relating to the cross-examination of Constable Vaughan. It is useful and important to set that out again in these reasons:

(a) The Crown seeks to tender communications intercepted pursuant to s. 184.2 of the Criminal Code. The Crown submits that the three pre-requisites have been met namely (a) reasonable grounds to believe an offence had been committed; (b) Consent – on August 23, 2011 Nirmalan Satkunananthan consented to becoming an agent of the state for the purpose of one party consent authorization; (c) reasonable grounds to believe that Information about the offence will be obtained.

(b) The Crown is not seeking to make use of any interceptions or one party consent interceptions for the period the April 4, 2012 warrant was in force.

(c) The Crown submits that Justice Durno had sufficient information in the ITO to satisfy himself that grounds existed for the authorization, that being one of “reasonable probability” based on the “totality of circumstances”.

(d) The Crown argues that the Applicant has not established a basis for granting leave to cross-examine the Affiant. The Crown submits that a basis must be shown by the Applicant that the cross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization.

(e) In reviewing the proposed areas of cross-examination, as set out by the Applicant at paragraph 143 of his Factum, the Crown submits that none of those concerns would have the effect of discrediting any of the three pre-conditions for issuance of the authorizations.

(f) The Crown acknowledges that the Affidavit must be frank, full and fair in complying with the statutory pre-conditions for an authorization, however, that does not require the affiant to regurgitate to the issuing Justice the entire history of the investigation.

(g) The Crown argues further that even if there are omissions and material facts not disclosed that does not automatically result in the pre-conditions not being met. The authorization will not be invalidated if there remains a sufficient basis for the issuance of the authorization. Even misleading or fraudulent information will not automatically vitiate an authorization. This also applies to inaccurate information.

(h) In summary the Crown contends that the concerns raised by the Applicant are not borne out when the ITO is considered in its totality. However, even if these concerns were present and that material was excised from consideration there is still sufficient information contained in the ITO to satisfy the pre-conditions for the authorizations to have been issued.

GOVERNING LEGAL PRINCIPLES:

Grounds for Review

[34] Before granting a wiretap authorization, a judge must be satisfied by the affidavit evidence that there are reasonable grounds to believe that a specific crime has been, or is being committed and that the interception of private communications will afford evidence of the crime.

[35] R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421, p. 35 a review is not a review de novo. The test is this:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but rather than being a pre-requisite to review their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[36] In R. v. Adam, [2006] B.C.J. No. 534 (Q.L.) Justice Romilly states at paras. 16 and 29:

Consequently, as I review the statements and conclusions set out in the Affidavit, I will not be assessing the validity of pinpointed passages in isolation of the broader context of the Affidavit and the overall investigation. I also reiterate that I do not stand in the same position as the authorizing judge on this review. I am seeking only the possibility that the statements and conclusions can be upheld, not a certainty or even a probability.

Gresham stated that through his review of CPIC, he learned that Cox contacts Morin on this cellular phone number. The Accused argue that the issuing judge would need to know more about the basis for this statement in CPIC before accepting this assertion to be true. I do not find this to necessarily be the case. If affiants were required to exhaustively set out the basis for every statement, including those relying on the work of other, sometimes anonymous fellow officers, the wiretap authorization process would be cumbersome indeed. It is certainly available to the issuing judge to challenge any statement and trace it back to first principles, but this right will not always be exercised. In this case, I accept that there was sufficient evidence available to support the conclusion that Morin is associated with this second number.

[37] In R. v. Riley, 2009 7177 (ON SC), [2009] O.J. No. 738 (QL) the defence reviewed each fact of the affidavit. In particular, the defence focused on the unreliable nature of much of the informer information set out in the ITO. The trial judge rejected this approach as undermining the totality of circumstances approach, which should be taken during the reviewing process. The court set out the following at paras. 118-121 and 126-127:

In the course of his very thorough argument, Mr. Midanik reviewed the information in the affidavit piece by piece, and argued that much of the information I have outlined cannot be relied on to establish reasonable and probable grounds because it is unreliable informer information, and even where it is not informer information, it is often still unreliable because it is unsourced and conclusory. I do not agree with this approach.

Obviously Mr. Midanik was not wrong to examine the information in the affidavit piece by piece. The significance of the evidence collectively cannot be assessed without such an examination. But in my view a reviewing judge should not simply remove pieces of information from consideration because those pieces, examined individually, are untested, unsourced, lacking in detail or conclusory. Instead, the pieces should also be examined in light of the overall constellation of information in the affidavit and assessed collectively, bearing in mind their various strengths and weaknesses.

Of course, insofar as the information provided by the various informants in this case is rumour, speculation or conjecture, it obviously can form no part of the reasonable grounds. But that is not an apt description of most of the information.

Most commonly, the frailty in the informer information stems from the fact that the informer had no track record of providing reliable information in the past, the affiant's failure to disclose the informant's source of knowledge, and the lack of detail in the information. This is not unusual in wiretap affidavits, particularly having regard to the duty placed on the affiant to make full and frank disclosure. These frailties undoubtedly affect the weight that can be placed on the individual pieces of information. But none of these frailties necessarily result in the information having no value. The same is true for the unsourced information from individuals who are not confidential informants. The case law mandates a different approach to the assessment of reasonable grounds than the one advanced by Mr. Midanik, whether or not the information includes informer information.

The totality of the circumstances approach endorsed by the Supreme Court generally, and in relation to informant information in particular, does not require me, as the reviewing judge, to examine each piece of information provided by each of the informants individually and consider whether each is sufficiently sourced, detailed or otherwise shown to be reliable to be taken into account in assessing the existence of reasonable and probable grounds. Fulfilling such a task in the circumstances of this application would be endless, and I will not pretend to have done it.

It must be remembered that this case is not a classic example of the sort of reliance on a tip contemplated in Debot, Greffe and Garofoli. No one told Comeau that Riley killed Charlton. There is no such tip to assess in the precise manner described in Debot. Instead, a number of informants provided pieces of the puzzle to the police that cumulatively are capable of leading to that conclusion. The correct approach to the consideration of this sort of information, in my view, is to examine the totality of the evidence, and to take into account whether, and to what extent, the informers are tested, or their information is sourced, detailed, or confirmed.

[38] In R. v. Alvarez, 2009 48828 (ON SC), [2009] O.J. No. 3825 (QL) (SCJ), at paras. 20-23 and 110 the Court stated:

Almost inevitably in an investigation as extensive as this one and with a record of the magnitude that was before the authorizing judge here, there will be some errors in the material filed. A standard of perfection is not required. As was stated by Nordheimer J. in R. v. George, [2003] O.J. No. 4825 (S.C.J.) at para. 40:

The fact that there are inaccuracies in the information cannot be ignored. Nor is such conduct to be even tacitly approved of. It is an important aspect of the role of an officer seeking a warrant to ensure that the information provided to the judicial officer is complete and accurate to the degree possible. Having said that, however, it strikes me as both unfair and unreasonable to engage in a word by word dissection of the information with a healthy dose of 20/20 hindsight in an effort to draw out every conceivable inaccuracy or matter of interpretation regardless of the insignificance with a view of lining up all such occurrences for the purpose of then suggesting that the sheer number of such matters must invalidate the warrant.

The material filed in support of an application for a wiretap authorization should be even-handed in its tone and should not be argumentative or contain inflammatory language. Further, it should set out the evidence for the propositions stated, and not simply conclusory statements or opinions by police officers. It is not improper, however, for police officers to draw inferences or offer opinions, particularly on issues that are outside the knowledge of an untrained person, provided the basis for those conclusions are set out: Garafoli; R. v. Sanchez (1994), 1994 5271 (ON SC), 93 C.C.C. (3d) 357 (Ont.Ct.Gen.Div.) at para. 20.

First-hand information is always preferable; but, hearsay information is admissible and can be used to establish reasonable grounds. Where the supporting affidavit relies upon hearsay information, such as a tip from an informer, the affidavit should also set out the underlying circumstances disclosed by the informer, the degree of detail provided by the informer, the informer's source of knowledge, and any other indicia of the informer's reliability such as past performance or confirmation from other investigative sources: Garafoli at page 191; Debot at pp. 215-219. It is for the authorizing judge to determine, based on such circumstances, whether the information is sufficiently reliable to form part of the basis for granting the authorization.

Where there is erroneous information in the affidavit, it is relevant to consider how that information came to be there. An intentionally false statement, or one that was made in reckless disregard for the truth, is more serious than an honest mistake or inadvertence. Even the existence of fraud or deliberate misrepresentations will not automatically vitiate the authorization, although it is far more likely to lead the reviewing judge to the conclusion that the evidence so obtained should be excluded. However, where the erroneous information is a simple mistake, the incorrect information should be excised from the affidavit. The reviewing judge must then consider whether the record, without the erroneous material, or as amplified with the correct information, continues to provide a sufficiently reliable basis upon which the authorization could have been granted: Garafoli; Araujo; R. v. Bisson, [1994] 3 S.C.R. 1097, 1994 46 (S.C.C.).

That is not to say that there are no errors in the affidavit. Clearly there are. However, I am satisfied that these were simply inadvertent. There was no intent to mislead. Neither was there the kind of negligence in drafting that suggests an indifference or recklessness towards telling the truth. In a document of this magnitude with this number of targeted individuals and the extensive reference to facts involved, there will inevitably be some mistakes.

[39] In R. v. Bisson (1994), 1994 46 (SCC), 94 C.C.C. (3d) 94, the Supreme Court of Canada clarified that in cases where the applicant demonstrates material non-disclosure and/or misleading or false information in the ITO, there is no automatic vitiation of the authorization.

[40] The court in R. v. Morris (1998) 1998 NSCA 229, 134 C.C.C. (3d) 539, p. 553, follows the guiding principles set out in Bisson.

[41] Accordingly, material non-disclosure of information or the inclusion of false or misleading information will not vitiate an authorization, if on review of the remaining affidavit material, there exists reasonable grounds to sustain the issuance of the order.

[42] In R. v. Caissey (2007), 2007 ABCA 380, 227 C.C.C. (3d) 322, the defence challenged the search warrant. The court upheld the validity of the search warrant, acknowledging that an error in the authorization is not fatal. The effect is merely to excise any mistaken evidence from consideration of the issuing justice. The court held at paras. 12 and 24:

In challenging the validity of the search warrant, the appellant attacks Cst. Cruise's sworn statement, which erroneously indicated that all of the informant's information had been verified. While Cst. Cruise erred in his statement, this is not fatal. Erroneous information may be excised or amplified on review to show the true facts, provided it results from an error and is not a deliberate attempt to mislead the authorizing judge: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 58. Here, Cst. Cruise provided details of what had been confirmed, making it obvious that some of the information obtained from the informant had not been confirmed. The trial judge committed no error in finding that the misinformation was due to poor draftsmanship rather than any deliberate attempt to mislead. The trial judge did not err in expunging that information, rather than declaring the search warrant invalid.

We agree with the Crown's submission that the trial judge applied the correct test and made no error in concluding that the search warrant could have been issued on the evidence provided. The trial judge considered whether the information provided was "sufficiently detailed to preclude the possibility that it's based on mere rumour." Regarding the aspect of reliability of the informant, the trial judge relied on the evidence confirming some aspects of the information provided. In this respect, she stated: "We are looking for this confirmation because if the tipster is proven correct about some details it might be safe to rely on other information provided." The trial judge examined the factors set out in Garofoli and correctly referred to the standard of review. She acknowledged that she could not overturn the search warrant simply because she might not have granted it. The trial judge concluded that the authorizing judge could have issued the search warrant based on the record before him, as amplified on review, as there was some information that might reasonably be believed. She based this finding on the information that the informant had recently been in the appellant's apartment and had personally witnessed the drugs in the appellant's possession.

[43] And at para: 25:

The trial judge committed no error. With reference to the three factors set out in Debot, the information provided by the informant was detailed and compelling, and was based on his/her personal knowledge that had been recently obtained while in the appellant's apartment. Although the informant had not previously provided confidential information to the police, he/she was known to the police officer, and the police independently confirmed a number of details, including the identity of the appellant and his residential address, that no children lived in the home, the name of his roommate, and the description of his vehicle. Confirmation of this information tended to substantiate the reliability of the informant's information, and was sufficient in the context of the other factors to meet the reasonable probability test. While the police did not obtain any confirmation of the fact that the appellant possessed marijuana, such confirmation is not necessary in the circumstances of this case. The trial judge correctly stated and applied the law.

[44] R. v. Nguyen and Nguyen, 2011 ONCA 465, Blair J.A. set out the following at paras. 23-25:

The ultimate test is whether – after excising any offending portions of the ITO – there remains a sufficient basis on the record before the issuing justice, as amplified on the review, for issuance of the warrant: see R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Morelli, supra. Other factors may be taken into account when arriving at that assessment. For example, misleading statements made to obtain the warrant, or a failure to make full and fair disclosure in the ITO – depending on the nature and severity of these faults – may provide a basis for challenging the decision to grant the warrant: Araujo, at para. 51. Care must also be taken to confirm the reliability of information obtained from tipsters where that information forms a material basis for the application.

Here, the trial judge based her conclusion that the warrant should not have issued on three factors: misleading statements contained in the ITO; inadequate examination of the reliability of the anonymous sources; and the failure to disclose certain facts that D.C. Mason did not observe. Having canvassed those issues, however, she did not ask herself whether, on the record before the issuing justice, as amplified on the review and minus any offending portions that needed to be excised, there remained a sufficient basis upon which the issuing justice could have issued the warrant. I agree with the Crown’s submission that this question appears to have been lost in the trial judge’s focus on the perceived misstatements and omissions. Moreover, in concluding that the impugned statements were misleading, the trial judge misapprehended and misconceived the evidence; the statements were not misleading in any material way. Finally, the purported omissions were not material in my view, or, for the most part, properly characterized as omissions in the circumstances.

In addition, even if the statements and omissions could be said to be materially misleading, that was not the end of the matter. The trial judge still had to ask herself the foregoing question i.e., whether there remained a sufficient basis on which to issue the warrant. As Charron J. said in R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 30:

Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context. In the end analysis, the admissibility of the wiretap evidence will not be impacted under s. 8 if there remains a sufficient basis for issuance of the authorization. [Emphasis added.]

[45] R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 deals with what constitutes “misleading statements”. Firstly, at paras. 40-41 the court sets out the test to be applied by the reviewing Court:

In reviewing the sufficiency of a warrant application, however, “the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 54 (emphasis in original)). The question is not whether the reviewing court would itself have issued the warrant, but whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable and probable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place.

The reviewing court does not undertake its review solely on the basis of the ITO as it was presented to the justice of the peace. Rather, “the reviewing court must exclude erroneous information” included in the original ITO (Araujo, at para. 58). Furthermore, the reviewing court may have reference to “amplification” evidence — that is, additional evidence presented at the voir dire to correct minor errors in the ITO — so long as this additional evidence corrects good faith errors of the police in preparing the ITO, rather than deliberate attempts to mislead the authorizing justice.

[46] Further at paras. 44-45 the court deals with the concept of full and frank disclosure, stating:

The deficiencies of the ITO in this case must be addressed in some detail before determining whether it could support the issuance of the warrant. In particular, there are erroneous statements that must be excised, and there are numerous omissions that violate “[t]he legal obligation on anyone seeking an ex parte authorization [to make] full and frank disclosure of material facts” (Araujo, at para. 46 (emphasis in original)). Once these flaws are taken into account, it becomes clear that the ITO, as reduced and amplified, could not possibly have afforded reasonable and probable grounds to believe that the accused possessed child pornography and that evidence of that crime would be found on his computer at the time the warrant was sought or at any time.

First, it is necessary to excise several misleading passages in the ITO that suggested Mr. Hounjet had actually viewed illegal pornography on the computer, rather than suspiciously labelled bookmarks (“Favourites”). In particular, para. 5 of the ITO, the first to adduce specific facts in support of the application, contains two glaring and misleading inaccuracies. It states, first, that “[o]nce on the computer HOUNJET observed ‘Lolita Porn’ on the screen”, and then that Mr. Hounjet “returned the next day to find the porn removed”.

[47] At paras. 48-50 the court states:

There is no reasonable basis for assuming that the justice of the peace would have understood these clear and misleading statements to refer exclusively to the icons mentioned in para. 10. The natural reading of the ITO is that pornographic images of children were actually seen on the computer. This is an entirely false claim, and these statements must therefore be excised from the ITO.

Aside from false statements, the ITO in several places gave an incomplete and misleading account of the facts, in contravention of the informant’s duty to make full and frank disclosure of all material information.

For example, the voir dire revealed that the two bookmarks described in the ITO — the bookmarks labelled “Lolita Porn” and “Lolita XXX” — were “just scattered through the favourites” among additional links pointing to “regular adult material” (Testimony of Adrian Hounjet at the voir dire, A.R., at pp. 98-100). This is not mentioned at all in the ITO.

[48] At paras. 58 and 59 in Morelli the court deals with the issue of a misleading ITO:

In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosure to the justice. When seeking an ex parte authorization such as a search warrant, a police officer — indeed, any informant — must be particularly careful not to “pick and choose” among the relevant facts in order to achieve the desired outcome. The informant’s obligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.

The relevant question here is whether the ITO was misleading, not whether it was intentionally misleading. Indeed, in the Court of Queen’s Bench, the judge who had the benefit of observing the Crown’s witnesses on the voir dire found no deliberate attempt to mislead. That conclusion should not be disturbed. It is nonetheless evident that the police officer’s selective presentation of the facts painted a less objective and more villainous picture than the picture that would have emerged had he disclosed all the material information available to him at the time.

[49] In R. v. Ebanks, 2009 ONCA 851 MacPherson J.A. deals with the issue relating to sufficiency of information to support an authorization of an ITO at paras. 30-33 as follows:

In my view, the trial judge erred in so concluding. I repeat what Sopinka J. said in Garofoli at p. 1452 about the standard of review to be applied by a reviewing judge:

In Araujo at paras. 51 and 54, Lebel J. stated the test in this fashion:

In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued.

An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems. Again, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge. [Emphasis in original.]

Applying this test to the authorization in this case, I am of the view that the affidavit, properly considered with the correct information intact, disclosed more than ample grounds to support a wiretap authorization. The affidavit set out the following facts:

• three anonymous tips identified either the respondent or Campbell as being involved in Osborne’s murder;

• two witnesses told police that word on the street was that the respondent was involved in the murder;

• there was evidence of motive, namely, that Campbell and the victim had had a falling out despite having been friends at some point, and that the Osborne murder was related to the murder of the respondent’s brothers four months earlier;

• two witnesses saw the respondent at the party where Osborne was shot; and

• there was substantial cell phone communication between the respondent and Campbell, with Campbell being very near the murder scene immediately before Osborne’s murder.

The Crown concedes that the evidence did not disclose sufficient grounds on which to charge the respondent with Osborne’s murder. However, the test on a review of a wiretap authorization is not whether there were reasonable grounds to lay charges against the individual but rather whether there were reasonable grounds to believe that interception of his communications may assist in the investigation of the offence: see R. v. Finlay and Grellette 1985 117 (ON C.A.), (1985), 52 O.R. (2d) 632 (C.A.), at p. 656; R. v. Schreinert 2002 44932 (ON C.A.), (2002), 165 C.C.C. (3d) 295 (Ont. C.A.), at para. 43. In my view, the facts set out in the previous paragraph easily satisfy this test. It was not necessary for the trial judge in effect to conduct a trial as to whether the reliability of the anonymous tipsters, the reliability and veracity of what the witnesses told the police, and the other evidence could be established beyond a reasonable doubt.

[50] In R. v. Pham, 2009 60792 (ON SC) Justice Hill notes the following at para. 87, when dealing with the scope of review of an ITO:

Constitutional review of Part VI orders invokes a menu of instructive guidelines:

(1) The reviewing court does not stand in the same place and function as the authorizing judge – there is no rehearing: Araujo, at para. 51.

(2) Assessment of statutory and constitutional compliance calls for a more restrictive role as described in R. v. Garofoli 1990 52 (S.C.C.), (1990), 60 C.C.C. (3d) 161 (S.C.C.) at para. 56, 62:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

The general requirement with which the authorizing judge must comply has already been referred to in these reasons. He or she must be satisfied that the statutory conditions have been established. The reviewing judge should not set aside this decision unless he or she is satisfied on the whole of the material presented that there was no basis for the authorization.

See also: R. v. Rosenfeld 2009 ONCA 307, (2009), 94 O.R. (3d) 641 (C.A.) at para. 12 (appl’n for leave to appeal filed, [2009] S.C.C.A. No. 407); R. v. Manders, 2007 ONCA 849, [2007] O.J. No. 4757 (C.A.) at para. 11-12; R. v. Blais 2004 8466 (ON C.A.), (2004), 182 C.C.C. (3d) 39 (Ont. C.A.) at para. 10 (“The standard of review before the trial judge was a narrow one”); Durling, at para. 15 (whether order could have been issued…”) (emphasis of original).

(3) The appropriate approach for judicial review of the facial validity of search order documentation is scrutiny of the whole of the document, not a limited focus upon an isolated passage or paragraph (“totality of circumstances” to be considered avoiding “deconstruct[ion]” into individual parts and not to review as though “correcting a student’s term paper”: R. v. Saunders 2003 NLCA 63, (2003), 181 C.C.C. (3d) 268 (Nfld. & Lab. C.A.) at para. 9, 11, 15 (aff’d 2004 SCC 70, (2004), 189 C.C.C. (3d) 436 (S.C.C.)). Reference to all data within the four corners of the sworn application, a common sense review not line-by-line word-by-word dissection, provides the fair and reasonable context for the assertions in question: R. v. Grant 1999 3694 (ON C.A.), (1999), 132 C.C.C. (3d) 531 (Ont. C.A.) at 543 (leave to appeal refused [1999] S.C.C.A. No. 168); R. v. Chan, 1998 5765 (ON CA), [1998] O.J. No. 4536 (C.A.) at para. 4; R. v. Ling 2009 BCCA 70, (2009), 241 C.C.C. (3d) 409 (B.C.C.A.) at para. 36 (leave to appeal refused [2009] S.C.C.A. No. 165); R. v. Melenchuk and Rahemtulla, [1993] B.C.J. No. 558 (C.A.) at para. 15-18; Simonyi Gindele et al. v. British Columbia (Attorney General) (1991), 1991 984 (BC CA), 2 B.C.A.C. 73 at 79.

(4) Part VI evidence is not rendered inadmissible simply on account of error in the authorization process. Error, coming in a variety of forms including “inelegant language” (R. v. Shoghi-Baloo, [1999] O.J. No. 325 (C.A.) at para. 7 (leave to appeal refused [1999] S.C.C.A. No. 297 )), “incomplete” material (Knight, at para. 18), “lack of care and precision” (R. v. Kesselring 2000 2457 (ON C.A.), (2000), 145 C.C.C. (3d) 119 (Ont. C.A.) at para. 32) and “deficient” sourcing (Agensys International Inc., at para. 44-5)) do not “in and of themselves…vitiate the authorization” without the reviewing court considering “the nature of the errors and the underlying purpose of such”: R. v. Lajeunesse et al., 2006 11655 (ON CA), [2006] O.J. No. 1445 (C.A.) at para. 8. Errors, even fraudulent ones, do not automatically invalidate an order: R. v. Morris 1998 1344 (NS C.A.), (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.) at 553 (quoted with approval in Araujo, at para. 54); Agensys International Inc., at para. 32.

(5) Excission, deletion or exclusion of erroneous or improper text from the sworn affidavit is generally appropriate in order to determine whether the unredacted material would, in any event, have supported issuance of the order as described in R. v. Bisson 1994 46 (S.C.C.), (1994), 94 C.C.C. (3d) 94 (S.C.C.) at para. 2:

As stated in R. v. Garofoli 1990 52 (S.C.C.), (1990), 60 C.C.C. (3d) 161 , [1990] 2 S.C.R. 1421, 80 C.R. (3d) 317, errors in the information presented to the authorizing judge, whether advertent or even fraudulent, are only factors to be considered in deciding to set aside the authorization and do not by themselves lead to automatic vitiation of the wire-tap authorization as was done by the trial judge. The trial judge should have examined the information in the affidavit which was independent of the evidence concerning Eric Lortie, in order to determine whether, in light of his finding, there was sufficient reliable information to support an authorization. Proulx J.A., writing for the Quebec Court of Appeal, 1994 5328 (QC CA), 87 C.C.C. (3d) 440 , [1994] R.J.Q. 308, 60 Q.A.C. 173, carefully reviewed and analyzed the affidavit after excluding the paragraphs directly affected by the retraction. On the basis of this analysis, we are satisfied that there was sufficient independently verifiable information which was not affected by the trial judge's finding and upon which an authorization could reasonably be based.

Also see Araujo, at para. 57-8; Agensys International Inc., at para. 38.

(6) However, deliberate errors on material matters in the application, in effect those designed to mislead, may justify a reviewing court concluding that “the conduct of the police in seeking prior authorization was so subversive” of the process that the court ought not to look to saving the issued order on the basis that the application, excluding the impugned parts, could have justified issuance of the order: Morris, at 553 (as approved in Araujo at para. 54); R. v. Donaldson 1990 630 (BC C.A.), (1990), 58 C.C.C. (3d) 294 (B.C.C.A.) at 311-2 (as approved in R. v. Plant 1993 70 (S.C.C.), (1994), 84 C.C.C. (3d) 203 (S.C.C.) at 216); Kesselring, at para. 31-3; R. v. Readhead, [2008] B.C.J. No. 861 (C.A.) at para. 2; Agensys International Inc., at para. 45, 47; and as described in the following authorities:

That said, there is no doubt that there was an ample basis for granting the warrant after excising the impugned references. The issue then is whether the inclusion of those references was so subversive of the search warrant process as to, in effect, amount to an abuse of process and require that the warrant be quashed. See R. v. Morris 1998 1344 (NS C.A.), (1998), 1998 NSCA 229, 134 C.C.C. (3d) 539 (N.S.C.A.) approved in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992.

(R. v. Vivar, 2009 ONCA 433, [2009] O.J. No. 2126 (C.A.) at para. 2)

It is clear from Araujo that if non-disclosure of a material fact is strategic on the part of the police (as in based on an improper motive or intended to mislead or deceive the authorizing justice) that omission is capable of invalidating the warrant, notwithstanding the existence of reasonable and probable grounds for the warrant to issue. No issue of improper motive or intention to mislead or deceive arose on the facts of the case before us.

(R. v. McElroy, 2009 SKCA 77, [2009] S.J. No. 416 (C.A.) at para. 30

(leave to appeal refused, [2009] S.C.C.A. No. 281))

(7) Amplification of the application record by way of clarification, correction or explanation respecting a material fact, most often in circumstances of a “minor” or “technical” error, may be appropriate where (1) after excision, the record has insufficient information upon which the order could have issued and (2) where the erroneous information result[ed] from a simple, good faith error and not from a deliberate attempt to mislead the authorizing judge”: Araujo, at para. 57-60; see also, Grant (S.C.C.), at 544; Plant, at 216-7; Hosie, at para. 11; Knight, at para. 39; R. v. Stabner, [2008] S.J. No. 693 (C.A.) at para. 11 (leave to appeal refused [2008] S.C.C.A. No. 500).

[51] In R. v. Spackman, 2012 ONCA 905, A. Watt, J.A. set out the following at paragraphs 221 to 226:

[221] As I will explain, I would give effect to this ground of appeal. The reviewing judge erred in concluding that, on the record before the authorizing judge, as amplified on review, there was no reliable evidence that might reasonably be believed on the basis of which the authorizing judge could have granted the authorization.

[222] First, despite his statement of the proper standard of review at the outset of his reasons, the balance of the reviewing judge’s reasons, read as a whole, betrays the proper application of this standard. What appears, rather, is a de novo review, on an item-by-item basis, of each investigative procedure undertaken and a critique of the investigating officer’s conclusions about its efficacy. It is not the role of the reviewing judge to micromanage homicide investigations.

[223] Second, the piecemeal approach followed by the reviewing judge is incompatible with his obligation to review the affidavit material as a whole, and to acknowledge the authority of the authorizing judge to draw reasonable inferences from the contents of the supportive affidavit.

[224] Third, the reviewing judge failed to articulate the basis upon which he rested his conclusions about the state of mind, purposefulness, and lack of understanding of the authorization process demonstrated by the affiant: R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at paras. 37 and 42.

[225] Fourth, the reviewing judge seems to have lost sight of the common sense reality of the specific criminal inquiry in which investigators were engaged. A drug dealer, pressing others for a return of funds advanced or delivery of drugs purchased, was stabbed to death, his body dumped in the snow. No murder scene. No eyewitnesses. No weapon. A group of buyers, sellers and others disinclined to offer assistance.

[226] Finally, in stating his conclusion on the validity of the authorization, the trial judge misstated the standard of review:

Given the nature of these misrepresentations and the role they played in the authorizing Justice’s decision, it cannot be said that, in their absence, the authorization would nonetheless have been given. Consequently, the authorization of April 27, 2005 is set aside. [Emphasis added.]

The relevant standard is whether, based on the record before the authorizing judge, as amplified on the review, the authorization could have been granted, not whether it would have been granted: Garofoli, at p. 1452.

Ground #4: The References to Wrongful Convictions and Miscarriages of Justice

APPLICABILITY OF THE GOVERNING LEGAL PRINCIPLES TO THE CASE AT BAR:

December 12, 2011 – Information to Obtain

Re: Nirmalan Satkunananthan (Nirm)

[52] The December 12, 2011 Information to Obtain makes several references to the police civilian agent Nirm. In order to demonstrate that the issuing justice had sufficient information about Nirm, it is informative and important to set out those references in these reasons:

Overview of the Investigation

Nirmalan Satkunananthan provided a statement to police which detailed his involvement in the robbery as an inside contact in the Poker Tournament and identified Brian Funes and a phone believed to be used by Kmar Kelly as being his contacts on the outside of the premise leading up to the robbery and murder. Production Orders on Nirmalan’s phone confirmed this information. Nirmalan was fronted the money to enter the tournament by Brian Funes, who was introduced to him by a friend, Joseph Magdangal. Funes told Nirmalan that he intended to rob the Poker Tournament. Nirmalan told investigators that he received Funes’ phone number from Joe Magdangal. After the shooting Funes met with Nirmalan and told him what happened the day of the shooting. Funes said that one of his boys got shot and they had to take him to the hospital and change his clothes. I believe the male that was shot is Gabriel Owusu. Funes also said he was there; separate, in a different car, watching from the Country Style across the street. Funes said they didn’t get any money. I believe the car he was waiting in was not the Honda Civic that was the getaway car. I believe the information provided by Nirmalan, that Brian said one of his boys got shot and they too him to the hospital and change his clothes, is credible. In the surveillance videos seized from the scene of the robbery/murder and at the hospital, Owusu is seen wearing different clothing. The time span between the shooting and Owusu arriving at the hospital was approximately half an hour.

Nirmalan agreed to act as an agent of the state and have his communications intercepted and his movements observed.

The investigation has been extensive, Owusu is believed to be the male robber inside the poker game but the identity of the shooter has not been confirmed. Kmar Kelly and Marcus Alexis are believed to be in the area of the robbery and murder scene when it took place due to their cellular telephone activity and are similar in description to the shooter. I believe Funes orchestrated and planned the robbery in advance and was watching the robbery unfold from outside the Rozz Banquet Hall. I believe Nirmalan Satkunananthan, now an agent of the state, was used by Funes as a contact inside the Rozz Banquet Hall and a participant in the poker game being held there in order to determine the right time to execute and stage the robbery. Nirmalan was in contact with the phones believed to be used by Funes and Kelly while inside the banquet hall. In addition, Nirmalan had one phone contact with the phone believed to have been used by Morrone. I believe Funes used Owusu, and another male, possibly Kelly, and/or Alexis to carry out the robbery, which turned into the fatal shooting and murder of Kearn Nedd.

Summary of Grounds for Belief

Nirmalan Satkunananthan, the agent, provided a statement to police in which he said he spoke with Brian Funes following the shooting. Funes said that one of his boys got shot and they had to take him to the hospital and change his clothes. Funes said he was there; separate, in a different car, watching from the Country Style across the street. Funes said they didn’t get any money. I believe that the male who got shot that Funes was talking about was Gabriel Owusu.

Investigators have spoken with the agent, Nirmalan Satkunananthan, who has admitted he was an inside contact in the Poker Tournament on April 16^th, 2011, at the Rozz Banquet Hall for the suspects that were planning to rob it. Nirmalan identified Funes and a phone believed to be used by Kelly as his contact numbers on the outside of the Banquet Hall.

As previously stated, a phone believed to be used by Funes has been associated to phones believed to be used by Satkunananthan around the time of the murder. A Production Order was granted for the cellular telephone tower activity between 1:30 pm and 3:30 pm on April 16^th, 2011, in the area of the robbery and murder scene at 200 Advance Boulevard. The cellular telephone tower activity report revealed that the phone believed to be used by Funes was in the area of the robbery and murder at 200 Advance Boulevard, along with the cellular telephones believed to have been used by Alexis, Morrone, Kelly, and Owusu. In addition the phone believed to have been used by Funes had 7 contacts with the phone used by the agent, Nirmalan Satkunananthan during that time period.

Nirmalan was fronted the money to enter the tournament by Brian Funes, who was introduced to him by a mutual friend, Joseph Magdangal. Funes told Nirmalan to call him just prior to when the tournament started so he could rob it. After the shooting Nirmalan met with Brian Funes who told Nirmalan that he was there in a car, watching from across the street, that they didn’t get any money and one of his boys got shot and they had to take him to the hospital and change his clothes. I believe this was Gabriel Owusu.

Nirmalan is acting as an agent of the state, with the understanding that he will not face prosecution should he co-operate with police and is truthful, and consenting to having his communications with Brian Funes and Joseph Magdangal intercepted while speaking with them in person, and in his vehicle, and over his cellular telephone, I believe that Nirmalan may have more knowledge and may be withholding information in relation to what had occurred in the robbery and shooting. This knowledge may include such information as the identity of more person who were involved and their roles in the robbery and murder, which is information that may assist in the investigation of the offences. Nirmalan has spoken to Funes and Magdangal since the time of the robbery and murder. It is reasonable to believe that he will continue to do so, even when not being monitored by investigators and being intercepted as part of a One Party Consent, which has expired. Nirmalan has been and will be aware when investigators are intercepting his communications in the meetings between himself and Magdangal and Funes. It is reasonable to believe that when Nirmalan is aware of being intercepted he will not talk about the specific details in relation to the robbery and homicide with Funes and Magdangal, such as his own involvement in the offences. Nirmalan may also be tempted to minimize his involvement in the offences. Therefore, intercepting his communications over his home phone, cellular telephone, and in his vehicle may provide additional information and/or indicia of his voracity or otherwise.

Investigation has revealed that Nirmalan lives … he uses a 2005 Honda Civic, 2 door, black and uses cellular telephone number 416-565-4729.

I believe that intercepting the private communications of Nirmalan Satkunananthan may assist in the investigation of the offences.

Grounds for Belief

I learned the following information from Constable Vandenbrink #2619:

a. The Rogers Communications Incorporated tower activity Production Order results identify that:

i. On April 16^th, 2011 between 1:32 pm and 2:40 pm 7 calls were made between 647-923-7302 (associated to Funes) and 416-565-4729 (associated to Satkunananthan).

ii. Both phone numbers 647-923-7302 (Funes), and 416-565-4729 (Satkunananthan) were present in the area of 200 Advance Boulevard on April 16^th, 2011 between 1:32 pm and 2:40 pm.

b. Subscriber information received by Aaron Storr from Rogers Corporate Security in relation to phone number 647-923-7302 (now known to be Funes) identified the subscriber as Kelly Bolanos of …

On June 22^nd, 2011, Constable Duncan #2605 interviewed Nirmalan Satkunananthan, who told her that he had sole possession of the phone 416-565-4729 on April 16^th, 2011.

Upon initial questioning Nirmalan said he was not at Rozz Banquet Hall at 200 Advance Boulevard, but was at the Cannonball Strip Club located nearby.

Nirmalan admitted he lied about his location and that he was inside the Rozz Banquet Hall prior to and during the murder.

He said he didn’t make any phone calls that day and that he was at the Cannonball Strip Club, across the street from the Rozz Banquet Hall. He said he was in the company of David Choy, an acquaintance of his, during the incident.

Constable Van Loosen #2678 interviewed David Choy on June 22^nd, 2011, and Choy said that he did not have contact with Nirmalan Satkunananthan until after the murder took place and he was not in attendance in the area of 200 Advance Blvd on April 16^th, 2011.

I can advise that the telephone records obtained through the Production Order for phone number 289-921-8019 (associated to Kmar Kelly) provided the following information:

a. On April 16^th, 2011, between 1:26 pm and 2:43 pm 17 phone contacts (phone calls and text messages combined) were made between 416-565-4729 (associated to Satkunananthan) and 289-921-8019 (Kelly).

(This phone number 289-921-8091 is disconnected and no longer in use.)

I can advise that telephone records obtained through the Production Order for the phone number 416-565-4729 (associated to Nirmalan) provide the following information:

a. On April 16^th, 2011, at 1:17:18 pm this number called 289-218-8824 (associated to Morrone) and maintained contact for 30 seconds.

(As will be detailed later in the affidavit, Satkunananthan is now acting as a police agent. Paragraph 97 refers.)

On August 3^rd, 2011 Constable Philip King #2257 who is a member of the Peel Regional Police Homicide and Missing Persons Bureau interviewed Nirmalan Satkunananthan (January 15^th, 1986). I have reviewed his video synopsis and learned the following information:

a. Joe Mags (Joseph Magdangal’s nickname) and Brian are friends. Nirmalan got Brian’s phone number from Joe Mags. Joe Mags lives near Hurontario Street and Dundas, just south of the Shoppers Drug Mart in Mississauga. (I believe that “Joe Mags” is Joseph Melvin Magdangal and “Brian” is Brian Funes).

b. Nirmalan found out that Brian was involved in a shooting at Hurontario Street and Queensway a few weeks ago. Brian had been shot six times. His Nickname is Spanish and he is short with a shaved head. Nirmalan drives Brian around to different locations to do different things like attend his parole hearings, pick up his pay, and pick up money for drugs because he is not allowed to drive. Brian has a Ford Focus.

c. He advised that he met a guy named Brian through a friend of his named Joe Mags about 6 months ago at a poker tournament, but Brian doesn’t play poker.

d. Brian was in contact with him days before the tournament and that he got fronted the money to enter by Funes. Joe Mags had offered to front the money but never did.

e. Nirmalan said he was present at the Rozz Banquet Hall on the day of the shooting.

f. Nirmalan said he started playing the cash game and then he called Funes. Ten minutes later Nirmalan heard the gunshot.

g. He was told call Brian if the tournament had started yet, and to say when the tournament is going to start. Brian told him to call him up from the tournament, so he could rob the place.

h. Brian gave him another number to call on the day of the shooting, 289-921-8019 (Kelly). Nirmalan was also relaying information to this person, not Brian.

i. Nirmalan provided a cell phone number for Joe Mags of 416-459-8353.

j. After the shooting Brian met with Nirmalan and told him what happened the day of the shooting. Brian said that one of his boys got shot and they had to take him to the hospital and change his clothes.

On August 23^rd, 2011, Nirmalan Satkunananthan was spoken to in a videotaped interview and consented to become an agent of the state for the purposes of an One Party Consent Authorization and a Consent General (Video) Warrant. Nirmalan became an agent of the state because he was sorry for what happened to the victim, didn’t want what happened to happen, and wants to right a wrong. (A copy of the signed consent is included in Appendix ‘A’.)

On September 19^th, 2011, Justice Blacklock granted a One Party Consent Authorization, with a Consent General (Video) Warrant, in which Nirmalan Satkunananthan was acting as an Agent of the State.

a. I reviewed the transcript of an interception of Satkunananthan’s communications with Joseph Magdangal that took place on November 3^rd, 2011 at 1:47 pm. Magdangal and Satkunananthan were speaking while in Satkunananthan’s vehicle. The relevant portions of the conversation consisted of the following:

SATKUNANANTHAN (S)

MAGDANGAL (M)

S: So you haven’t heard anything from ‘B’?

M: B.

S: Yeah.

M: B’s around, they just robbed the fucking Sports Check, this guy came to my house with a trunk full of track suits, boxes of Nike shoes, like my garage was filled with shit the other day.

S: Yeah because I don’t want them coming back to my house.

M: I hear you, I don’t want them coming to my house either.

S: Especially because I wasn’t home yesterday my dad called me today.

M: Just tell the cops like yo you don’t need to come to my house, this is my parent’s house, they have your number, if they wanted to they can call your cell, just don’t change your story man, if you change your story it’s going to look like you’re lying.

S: Yeah.

M: That’s all they want, they want to hear someone slip so they could point it at someone right, they’re not going to catch these guys bro, they need some kind of conclusion right, they need someone to go down for it but you didn’t do anything.

S: I know.

M: So you don’t have to worry, you know Brian that’s it, those are Brian’s boys I don’t even know these fucking niggers, I don’t even know who they are.

S: Yeah.

(I believe that when Magdangal refers to B and Brian, he is referring to Brian Funes. I believe that when Magdangal is referring to ‘shooting the guy’ he is referring to the murder of Nedd).

Investigative Plan

The goals of this investigation are to positively identify the persons responsible for shooting and murdering Kearn Nedd, to establish the respective roles of the persons of interest in this investigation, to locate and recover the murder weapon and the weapon used in the robbery, and to obtain evidence to be able to successfully prosecute the persons involved in the robbery and murder of Kearn Nedd. I believe that Gabriel Owusu, and Brian Funes are involved in the robbery at the Rozz Banquet Hall and in the subsequent shooting murder of Kearn Nedd. I believe that Funes planned and orchestrated the robbery and were watching from outside the Rozz Banquet Hall, using Nirmalan Satkunananthan as his contact inside the poker game to tell them when the right time to carry out the robbery was. Owusu, Kelly, and/or Alexis were used to execute the robbery and then flee the scene.

I believe on reasonable grounds that Gabriel Owusu, and Brian Funes, are responsible for the robbery that took place at the Rozz Banquet Hall and the murder of Kearn Nedd. I believe, on reasonable grounds that intercepting the private communications of Gabriel Owusu, John Morrone, Kmar Kelly, Brian Funes, Marcus Alexis, Joseph Magdangal, and Nirmalan Satkunananthan will assist with the investigation of the offences. It is the intention of investigators to intercept the communications of the aforementioned persons on their home phones, cellular telephones, and via listening devices install in their cars and/or their homes. (Since John Morrone lives by himself his home will not be live monitored. The cellular telephones listed in paragraph 5(a) through (j) are believed to be used only by the person associated to that phone. These devices will not be live monitored as a result.)

Nirmalan Satkunananthan agreed to act as an agent of the state and to have his private communications intercepted and to be observed. Should this Authorization be granted Satkunananthan will continue in his role as agent of the state, be fitted with a listening device and captured on video when he meets with Magdangal or Funes to discuss the robbery and murder. Satkunananthan’s vehicle will be used as a meeting place with interception and video recording. Satkunananthan’s conversations with Magdangal or Funes will be recorded and observed and afford corroborating evidence of the offence. Both the audio with accompanying video will capture Funes’ and Magdangal’s gestures and will provide information and/or evidence of the offence.

I believe that Satkunananthan’s conversations with Magdangal and Funes will stimulate both Magdangal and Funes to speak with each other and other persons who are either directly involved in the robbery and murder or other unknown persons regarding the robbery and murder. Since Magdangal and Funes are unaware that their communications will be intercepted it is reasonable to believe that they will openly talk about details of the robbery and murder., These details may include who was responsible for shooting and killing Kearn Nedd, what the roles of the other involved persons were in the robbery and murder, what the involved persons did after the murder took place, and the present location of the murder weapon and the weapon used in the robbery, all of which is evidence of the offences. Investigators, with the original One Party Consent Authorization, intended to have Nirmalan meet with Funes as well.

February 9, 2012 - Information to Obtain

Re: Nirm

On August 28^th, 2011, Nirmalan Satkunananthan provided a statement to police which detailed his involvement in the robbery as an inside contact in the Poker Tournament and identified Brian Funes and a phone believed to be used by Kmar Kelly as being his contacts on the outside of the premise leading up to the robbery and murder. Nirmalan was supposed to text Funes and Kelly information on where the security guards were, where the prize money was, and when the tournament was going to tart so the robbers could time their robbery. Production Orders on Nirmalan’s phone confirmed this information. Nirmalan was fronted the money to enter the tournament by Brian Funes, who was introduced to him by a friend, Joseph Magdangal. Funes told Nirmalan that he intended to rob the Poker Tournament. Nirmalan told investigators that he received Funes’ phone number from Joe Magdangal. After the shooting Funes met with Nirmalan and told him what happened the day of the shooting. Funes said that one of his boys got shot and they had to take him to the hospital and change his clothes. I believe the male that was shot is Gabriel Owusu. Funes also said he was there; separate, in a different car, watching from the Country Style across the street. Funes said they didn’t get any money. I believe the car he was waiting in was not the Honda Civic that was the getaway car. I believe the information provided by Nirmalan, that Brian said one of his boys got shot and they took him to the hospital and change his clothes, is credible. In the surveillance videos seized from the scene of the robbery/murder and at the hospital, Owusu is seen wearing different clothing. The time span between the shooting and Owusu arriving at the hospital was approximately half an hour.

On February 1^st, 2012, the agent met with Funes again. This time the interception of their private communications revealed Funes knowledge in relation Owusu getting charged, how Owusu was the one that was shot in the back, that Funes switched his clothes with Owusu, and that on the day of the robbery and murder, the agent was only texting the driver, not one of the shooters. In addition, Funes also explained how he dropped the guns off with S.G.. I believe the driver was Kelly. I analyzed Production Orders and learned that on April 16^th, 2011, the day and around the time of the murder, 17 phone contacts were made between phones believed to be used by Satkunananthan and Kelly. Other than this, Satkunananthan’s phone had contacts with phones believed to have been used by Morrone and Funes. Kelly was also the person who had rented and returned the vehicle identified as the getaway vehicle.

On January 16^th, 2012, the agent, Satkunananthan, met with Magdangal and Funes and showed them two photographs of Morrone and Alexis. Funes identified them as his boys and that it was in relation to the robbery and homicide. They also discussed how they dropped someone off at the hospital and that ‘he gave you the gun too.’ On February 1^st, 2012, the agent met with Funes again. This time the interception of their private communications revealed Funes’ knowledge in relation to Owusu getting charged, how Owusu was the one that was shot in the back, that Funes switched his clothes with Owusu, and that on the day of the robbery and murder, the agent was only texting the driver, not one of the shooters.

The agent, Satkunananthan was interviewed by investigators on February 2^nd, 2012 and revealed additional details in relation to his knowledge and involvement the night of the robbery and Nedd’s murder. After the robbery and murder, Funes called the agent to pick him up in the Square One area, the YMCA parking lot. When he arrived, he saw Funes taking a cloth bundle from a vehicle being drive by an unknown, heavy set, light skinned male black, with wire rimmed glasses. The description of this light skinned male black with wire rim glasses is consistent with the description of John Morrone. The agent also said that he believes the cloth bundle contained the guns used at the robbery and Nedd’s murder because the contents sounded like they were metal objects banging together when placed in the trunk.

On February 1^st, 2012, the agent met with Funes again. This time the interception of their private communications revealed Funes telling the agent that the agent was only texting the driver, not one of the shooters. I believe the driver was Kelly. Based on my analysis of production orders, on April 16^th, 2011, the day and around the time of the murder, 17 phone contacts were made between phones believed to be used by Satkunananthan and Kelly. Other than this Satkunananthan’s phone had contacts with phones believed to have be used by Morrone and Funes. Kelly was also the person who had rented and returned the vehicle identified as the getaway vehicle.

Nirmalan was used as an inside party to the offence who was relaying information to Funes and a person believed to have been Kelly in the robbery which lead to the shooting murder of Kearn Nedd. Nirmalan initially lied in his statement to investigators and said he wasn’t present or involved in the robbery and murder. However, once investigators obtained tower activity reports and production orders Nirmalan was spoken to again and admitted being present and part of the robbery. Nirmalan was interviewed by investigators on February 2^nd, 2012, and revealed additional details in relation to his knowledge and involvement the night of the robbery and Nedd’s murder. After the robbery and murder Funes called the agent to pick him up in the Square One area, the YMCA parking lot. When he arrived, he saw Funes taking a cloth bundle from an unknown black male. Funes put the cloth bundle in the trunk of the agent’s vehicle. Funes then entered the agent’s vehicle, picked up Funes’ girlfriend, Kapriece Herbel-Salmon and another unknown female, drove to Sherobee Road, Mississauga, where Funes took the cloth bundle from the trunk and walked away. Nirmalan told investigators that he did not reveal this additional information originally because he was scared that he would face being arrested and charged.

Nirmalan is acting as an agent of the state, with the understanding that he will not face prosecution should he co-operate with police and is truthful, and consenting to having his communications with Brian Funes and Joseph Magdangal intercepted while speaking with them in person, and in his vehicle, and over his cellular telephone. Although Nirmalan has told investigators additional information that he was previously withholding on February 2^nd, 2012, I believe that Nirmalan may have more knowledge and may be withholding further information in relation to what had occurred in the robbery and shooting. This knowledge may include such information as the identity of more persons who were involved and their roles in the robbery and murder, which is information that may assist in the investigation of the offences. Nirmalan has spoken to Funes and Magdangal, since the time of the robbery and murder. It is reasonable to believe that he will continue to do so, even when not being monitored by investigators and being intercepted as part of a One Party Consent, which has expired. Nirmalan has been and will be aware when investigators are intercepting his communications in the meetings between himself and Magdangal and Funes. It is reasonable to believe that when Nirmalan is aware of being intercepted he will not talk about the specific details in relation to the robbery and homicide with Funes and Magdangal, such as his own involvement in the offences. Nirmalan may also be tempted to minimize his involvement in the offences. Therefore, intercepting his communications over his home phone, cellular telephone, and in his vehicle may provide additional information and/or indicia of his voracity or otherwise.

Investigation has revealed that Nirmalan … he uses a 2005 Honda Civic, 2 door, black … a cellular telephone number 416-565-4729, and Blackberry Smartphone with PIN#232E8528.

I believe that intercepting the private communications of Nirmalan Satkunananthan may assist in the investigation of the offences.

On June 22^nd, 2011, Constable Duncan #2605 interviewed Nirmalan Satkunananthan, who told her that he had sole possession of the phone 416-565-4729 on April 16^th, 2011.

Upon initial questioning Nirmalan said he was not at Rozz Banquet Hall at 200 Advance Boulevard, but was at the Cannonball Strip Club located nearby.

Nirmalan admitted he lied about his location and that he was inside the Rozz Banquet Hall prior to and during the murder.

On August 23^rd, 2011, Nirmalan Satkunananthan was spoken to in a videotaped interview and consented to become an agent of the state for the purposes of a One Party Consent Authorization and a Consent General (Video) Warrant. Nirmalan became an agent of the state because he was sorry for what happened to the victim, didn’t want what happened to happen, and wants to right a wrong. (A copy of the signed consent is included in Appendix ‘A’.)

[53] I have not included each and every reference to Nirm but these references provide context to the discussion relating to Nirm.

December 12, 2011 – Information to Obtain

Re: S.G.

On Thursday, June 9^th, 2011, Constable Colley interviewed S.G. who provided the following information:

a. On the day of the homicide, (April 16^th) Andy (Andrew Owusu) had called him and asked to meet up.

b. The two met up at the Square One Shopping Mall. Andy was visibly shaken and advised that he just did a mission (Crime) that went bad. The mission was at a gambling spot and he was inside to grab the money. While inside, he was talked by a couple of people and when he hit the ground, the gun went off.

c. While he was on the ground, his partner who was outside began to fire in to the banquet hall. Andy was able to break free and run outside where his partner was.

d. Andy did not disclose who the shooter was. He did not disclose when he came to Ontario or when he was leaving. Andy did receive a phone call while they were together advising that his younger brother, Gabriel, was shot. He advised that his brother was shot by Jamestown guys.

(I am unsure what the motive to lie about Andy Owusu being involved in the shooting is. This may be an attempt to mislead the investigation into why Gabriel Owusu was shot and an attempt to distance Gabriel Owusu from the shooting and murder of Kearn Nedd.)

e. S.G. also advised that the guns located during a search warrant (unrelated to this investigation) were owned by Andy Owusu.

(Investigators have attempted to confirm S.G.’s version of events and have so far been unable to. Investigators have established; however, that Andrew Owusu was in British Columbia during the time when the murder took place, his phone records, obtained through a Production Order, showed that the phone believed to be used by him was in B.C. during the murder time, Andrew is known to have signed in with his probation officer on dates before and after the murder took place, and enquiries were made to major airlines and no bookings in Andrew Owusu’s name were found to have been made between the dates Owusu had meetings with his probation officer. I believe that based on the above information Andrew Owusu can be eliminated as a suspect in this investigation. I believe that he was in British Columbia during the time the murder occurred and therefore not responsible.)

February 9, 2012 – Information to Obtain

Re: S.G.

On June 9^th, 2011, Hamilton Police gang unit completed a search warrant on residences and storage lockers owned or associated to S.G.. As a result nine firearms were seized from these locations and S.G. was arrested and charged. The firearms were sent to the Centre of Forensic Sciences and comparison tests between bullets fired from these firearms and bullets recovered at the scene of Nedd’s murder were made. Tests revealed that bullets test fired from one of the firearms matched the bullets recovered from the murder scene. Therefore the murder weapon was identified. However, the shooter’s identity remains unknown. No other evidence was recovered to identify the person who used the gun to kill Nedd.

I reviewed occurrence report PR11-164459, dated June 9^th, 2011, in relation to a Controlled Drugs and Substance and Firearms arrest/Search Warrant Execution. From the report I learned the following:

a. On June 9^th, 2011, a search warrant was executed by Hamilton Police Gang Unit for one residence in Hamilton, and one residence and four storage units at [redacted]. These locations were identified as being associated to and used by a male by the name of S.G., DOB: May 29^th, 1981. S.G. was arrested and a search incident to arrest revealed additional storage room keys on his person. These storage rooms were also searched. During the execution of these search warrants 9 firearms were seized. All the firearms were sent to the Centre of Forensic Sciences for analysis.

I reviewed a report from the Centre of Forensic Sciences dated January 12^th, 2012, and authored by B. Sampson, a Forensic Specialist – Firearms and Toolmarks. The report centres around a comparison of all the 9 mm bullets recovered at the scene of Nedd’s murder, and the 9mm bullets test fired from the guns seized as a result of the above search warrant occurrence PR11-164459. I learned that two bullets were matched and identified, within the limits of practical certainty, as having been fired from the same firearm. Also, the bullets test fired originated from a 9mm Luger Calibre Beretta model 92FS semi-automatic pistol with the serial number obliterated.

a. Practical certainty is described in the report as: Since it is not possible to collect and examine samples of all firearms, it is not possible to make an identification with absolute certainty. However, all scientific research and testing to date and the continuous inability to disprove the principles of toolmark analysis has demonstrated that firearms produce unique, identifiable characteristics which allow examiners to reliably make identifications.

(I believe that the gun seized from the search warrant in the above occurrence is the gun that was used to shoot and kill the victim in this investigation, Nedd based on the fact that a bullet from Nedd’s murder scene was matched to a bullet fired from a gun seized in the above search warrants.)

S.G.

On January 25^th, 2012, S.G., was brought, by way of a Judge’s Order, to Davis Court at 7755 Hurontario Street, Brampton, and charged with the offence of Accessory After the Fact to Murder, in relation to Nedd’s murder. No interview was taken.

On Thursday, June 9^th, 2011, Constable Colley interviewed S.G. who provided the following information:

a. On the day of the homicide, (April 16^th) Andy (Andrew Owusu) had called him and asked to meet up.

c. While he was on the ground, his partner who was outside began to fire in to the banquet hall. Andy was able to break free and run outside where his partner was.

e. S.G. also advised that the guns located during a search warrant (unrelated to this investigation) were owned by Andy Owusu.

December 12, 2011 – Information to Obtain

Re: Andy Owusu

On Monday, October 17^th, 2011 I spoke to Constable Irwin #3070 of the Peel Regional Police Gang Unit who told me the following:

a. On Tuesday, October 11^th, 2011, while at Pearson International Airport (Terminal one) escorting Andrew Owusu (Gabriel Owusu’s brother) to a departure flight after being in custody for an unrelated investigation, Irwin obtained a cell phone number for Gabriel Owusu who is a person of interest of this investigation.

b. Constable Irwin overheard Andrew Owusu ask his mother to use her cell phone to call his brother Gabriel to say good bye.

c. Andrew then asked his other brother Julian Owusu, for Gabriel’s cell phone number.

d. Julien then read out loud, from a piece of paper Gabriel’s cell phone number to Andrew, which Constable Irwin was able to obtain.

e. Andrew then contacted Gabriel at which time Constable Irwin was able to confirm by overhearing his conversation to Gabriel that it was him. Once the call was complete, Constable Irwin asked Andrew if that was his brother Gabriel on the phone, Andrew advised it was.

f. The cell phone number obtained by Irwin was 647-818-4579.

I spoke with Constable Colley who said he learned from Detective Gormely #2544 that on May 2^nd, 2011, he and Detective Heyes had met with Andrew Owusu as he exited a plane at Pearson International Airport. Andrew indicated his current address was … with a cellular phone number of … Andrew told them the following about his brother Gabriel:

a. He initially said that he heard his brother was shot in Oakville. He said no one was trying to kill his brother and it was an accident. He said that it did not make sense to him and that he had heard that there was a murder in Mississauga, Ontario.

b. Andrew was expected to stay at his mother’s house on Mauve, Brampton, and was leaving to go back to B.C. on Friday, May 6^th, 2011.

On Tuesday, June 14^th, 2011, Constable King #2610 received information from Braeden Trefrey of Rogers law enforcement support that cellular phone number … was registered to Andy Owusu….

On Thursday, June 9^th, 2011, Constable Colley interviewed S.G. who provided the following information:

a. On the day of the homicide, (April 16^th) Andy (Andrew Owusu) had called him and asked to meet up.

c. While he was on the ground, his partner who was outside began to fire in to the banquet hall. Andy was able to break free and run outside where his partner was.

e. S.G. also advised that the guns located during a search warrant (unrelated to this investigation) were owned by Andy Owusu.

February 9, 2012 – Information to Obtain

Re: Andy Owusu

On Monday, October 17^th, 2011 I spoke to Constable Irwin #3070 of the Peel Regional Police Gang Unit who told me the following:

b. Constable Irwin overheard Andrew Owusu ask his mother to use her cell phone to call his brother Gabriel to say good bye.

c. Andrew then asked his other brother Julian Owusu, for Gabriel’s cell phone number.

d. Julien then read out loud, from a piece of paper Gabriel’s cell phone number to Andrew, which Constable Irwin was able to obtain.

f. The cell phone number obtained by Irwin was 647-818-4579.

On October 18, 2011, I analyzed the data from the number recorder granted by Justice of the Peace Jensen on October 5^th, 2011, in relation to the cell phone number 647-818-4579 believed to be used by Owusu and learned the following:

a. The cell phone believed to be used by Gabriel Owusu had contact with a phone believed to be used by Marcus Alexis, 647-786-4137.

i. Since October 6^th, 2011, the number believed to be used by Owusu has been in contact with the phone believed to be used by Marcus Alexis 251 times.

ii. Since October 6^th, 2011, the number believed to be used by Owusu has been in contact with the phone believed to be used by Marcus Alexis every day, approximately 5-6 times per day.

iii. On October 13^th the phone believed to be used by Alexis and the phone believed to be used by Owusu called each other 31 times.

(Since October 27^th, 2011, Owusu has been in custody in relation to being in possession of handguns.)

b. Andrew was expected to stay at his mother’s house on Mauve, Brampton, and was leaving to go back to B.C. on Friday, May 6^th, 2011.

On Tuesday, June 14^th, 2011, Constable King #2610 received information from Braeden Trefrey of Rogers law enforcement support that cellular phone number … was registered to Andy Owusu….

On Thursday, June 9^th, 2011, Constable Colley interviewed S.G. who provided the following information:

a. On the day of the homicide, (April 16^th) Andy (Andrew Owusu) had called him and asked to meet up.

c. While he was on the ground, his partner who was outside began to fire in to the banquet hall. Andy was able to break free and run outside where his partner was.

e. S.G. also advised that the guns located during a search warrant (unrelated to this investigation) were owned by Andy Owusu.

ANALYSIS

Re: Nirm:

[54] I am not satisfied that the concerns raised by the applicant are borne out when the Informations to Obtain are read in their entirety. The applicant has dissected the ITOs into compartments without looking at the document as a whole. As set out in Ebanks these ITOs should not be overly lengthy.

[55] In R. v. Ebanks, supra, the Court of Appeal overturned the trial judge who had concluded that the authorizations were invalid. The Court of Appeal rejected the trial judge’s view that the affiant had not been full, fair and frank in his affidavit materials. The court revisited the Araujo court’s emphasis that wiretap affidavits should not be overly lengthy. While the exhortation to be full, fair and frank in the affidavit remains a significant one, it comes with realistic limits; arriving at a readable affidavit necessitates synopsising and summarizing vast tracts of information. The Court of Appeal said:

The trial judge asserts three times that the affiant “intentionally omitted … material facts” pertaining to three main categories of evidence in the affidavit: opportunity, motive and cell phone records (paras. 235, 262, 285). In a similar vein, the trial judge found that the affiant made “intentional mis-statements, errors or omissions of material facts” (para. 203). In a particularly critical comment, the trial judge twice said that the affiant’s approach “was, in part, to disclose the information that supported the application and to omit information that detracted from it” (para. 210, 280).

In preparing an affidavit, an affiant should be not only full and frank but also “clear and concise”: see Araujo at para. 46. While the trial judge acknowledged this requirement he ignored its effect when inferring from the omissions that they were committed intentionally. The affiant must exercise some judgment in deciding what should and should not be included in a good and effective affidavit. This must admit of some discretion on the affiant’s part. The affiant’s testimony at the preliminary inquiry actually revealed a proper understanding of the expectations, not wrongful intent or incompetence. He noted that the only way to capture an entire interview is to “include the entire interview” and “I don’t’ think the courts, that’s what they’re looking for, they don’t want to see the entire case …, otherwise, I would have 20 banker boxes full of information in front of the Justice.”

The Court of Appeal endorsed the practical notion that for wiretap affidavits to be readable, the affiant must be selective in choosing what to include and exclude in the affidavit materials. The affiant must be just as concerned with conciseness as with the full, frank and fair principle.

[56] In R. v. Araujo, supra, the Supreme Court of Canada expressed concerns about the length of the 130-page wiretap affidavit in that case:

… what kind of affidavit should the police submit in order to seek permission to use wiretapping? The legal obligation on anyone seeking an ex parte authorization is full and frank disclosure of material facts … so long as the affidavit meets the requisite legal norm, there is no need for it to be as lengthy as A la recherché du temps perdu, as lively as the Kama Sutra, or as detailed as an automotive repair manual. All that it must do is set out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization. Ideally, an affidavit should be not only full and frank but also clear and concise. It needs not include every minute detail of the police investigation over a number of months and even of years.

The Supreme Court emphasized that full and frank disclosure remains the governing principles, but it cautioned that prolixity should be avoided.

[57] The applicant’s position that the affiant should have included the entirety of the over three hour statement given on June 22, 2011 by Nirm does not adhere to the legal principles set out. It was not necessary to include such lengthy material.

[58] The affiant made it clear on page 29 of the first Information to Obtain that Nirm initially lied to the police and said he was not present or involved in the robbery and murder. The affiant clearly set out at page 29 that he believed that Nirm may have more knowledge and may be withholding information in relation to what had occurred in the robbery and murder.

[59] Further the applicant’s position that the affiant did not provide details of what the lies were in the June 22, 2011 statement is not accurate. At pages 90 and 91 of the first Information to Obtain, at paragraphs 45 (g) to (k) the affiant sets out the following:

a. On June 22^nd, 2011, Constable Duncan #2605 interviewed Nirmalan Satkunananthan, who told her that he had sole possession of the phone 416-565-4729 on April 16^th, 2011.

b. Upon initial questioning Nirmalan said he was not at Rozz Banquet Hall at 200 Advance Boulevard, but was at the Cannonball Strip Club located nearby.

c. Nirmalan admitted he lied about his location and that he was inside the Rozz Banquet Hall prior to and during the murder.

d. He said he didn’t make any phone calls that day and that he was at the Cannonball Strip Club, across the street from the Rozz Banquet Hall. He said he was in the company of David Choy, an acquaintance of his, during the incident.

e. Constable Van Loosen #2678 interviewed David Choy on June 22^nd, 2011, and Choy said that he did not have contact with Nirmalan Satkunananthan until after the murder took place and he was not in attendance in the area of 200 Advance Blvd on April 16th, 2011.

[60] The important aspect of this information is that Nirm lied to the police. I am satisfied that there were sufficient details set out in that regard before the issuing justice. That information was not misleading. It was not necessary to provide to the issuing justice the entirety of the over three hour statement given by Nirm on June 22, 2011.

[61] There is no doubt that the police rely heavily on Nirm to prosecute Funes. The evidentiary record does demonstrate that after the first Information to Obtain the police had issues with Nirm and his truthfulness. Constable Vaughan testified that those issues were addressed.

[62] The applicant raises serious concerns about why the police continue to use Nirm.

[63] The applicant raises concerns about why Nirm’s debt situation was not put in the Information to Obtain. The applicant submits that the stated motive for helping the police, namely, to right a wrong, is grossly misleading. The motive was to get help to clear his debts.

[64] Constable Vaughan testified that the debt situation for Nirm was not relevant or integral to his grounds for the Information to Obtain. On the record before me I cannot find or conclude that the applicant’s position is even borne out. I cannot agree with the applicant that including this information would have impacted on the issuing justice’s decision.

Re: S.G.

[65] The applicant submits that the affiant was not full, frank and fair with respect to the information relating to S.G.. He did not disclose the circumstances of the June 9, 2011 interview of S.G.. There is a failure of sourcing as it relates to paragraph 96 of the first Information to Obtain. There is no mention that the firearms were located at S.G.’s residence and storage lockers. The position of the affiant that the firearms investigation and the murder investigation were not related makes no sense.

[66] I accept the affiant’s testimony that the reason this area was not investigated further was because in his mind the two investigations were not related. The reason more information relating to Andy Owusu was not included was because he was eliminated as a suspect.

[67] At paragraphs 109-110 of his Factum Funes sets out the following (Tab 3C):

In the second wiretap authorization the affiant makes reference to an intercept dated December 14, 2011 at 9:43 pm which involves Brian Funes speaking to an unknown male about whether if the gun he saw looked like the same revolver he used to own. It is respectfully submitted that this intercept serves no evidentiary purpose in furthering the investigation into the Nedd homicide. There is no evidentiary linkage between the discussion of these two guns and the case at bar. The only purpose that this intercept serves is to present bad character evidence of Brian Funes which is presumptively inadmissible.

Second Wiretap Authorization dated February 9, 2012 at pgs 130

The affiant also makes reference to another intercept dated December 15, 2011 at 12:55 am where Brian Funes is speaking to an unknown male about .38 and 9mm firearms. During this discussion Brian Funes makes reference to being in possession of a gun that has the calibre markings scratched off. It is respectfully submitted that this intercept serves no evidentiary purpose in furthering the investigation into the Nedd homicide. There is no evidentiary linkage of the firearm in Funes’ possession and the case at bar. The only purpose this intercept serves is to present further bad character evidence of Brian Funes as a person who has access to firearms and who possesses firearms.

Second Wiretap Authorization dated February 9, 2012 at pgs 131

[68] I agree with the position of Funes that that information should be excised out of the ITOs.

[69] It is important to consider the totality of the circumstances and to read the Informations to Obtain as a whole. The first Information to Obtain is dated December 12, 2011. The murder occurs on April 16, 2011. During that time period a considerable amount of investigation is done. It is not possible, nor do the authorities mandate that it be done, to include all of the investigation material or information in an Information to Obtain.

[70] The Information cannot be dissected and analyzed in a piece-meal fashion. The test is not whether the information provided is true but in considering the documents as a whole whether it is reliable and supports the grounds for the issuance of that authorization. The reliability of the agent has to be assessed within the context of the Information to Obtain as a whole.

[71] Further I agree with the Crown’s position that the Information provided by Nirm is corroborated on many items. At paragraph 72 of his Factum the Crown sets out the following:

The Affiant demonstrated that much of the evidence from Mr. Satkunananthan, which was relied upon, was corroborated by other evidence.

i. There were phone records that showed contact between Mr. Satkunananthan and the applicant.

ii. Mr. Owusu was taken to the hospital with a gunshot wound.

iii. The clothing worn by Mr. Owusu at 12:20 p.m., were different than the clothing worn at the hospital at 3:19.

iv. Phone records placed Mr. Satkunananthan in the vicinity of the banquet hall at the time of the shooting.

v. Phone records also shows contact between Mr. Satkunananthan and Mr. Kelly prior to the commencement of the robbery.

vi. The shooting and the applicant were discussed by Mr. Satkunananthan and Joseph Magdangal in the November 3, 2011 intercept.

vii. Phone records form September 29, 2011 showed 260 contacts between Mr. Magdangal and Mr. Funes. This offers some corroboration for Mr. Satkunananthan’s suggestion that Mr. Magdangal and Mr. Funes had a close friendship.

viii. Sam Parker indicated that no money was stolen.

CONCLUSION

[72] In all of the circumstances, therefore, I am not satisfied that the Section 8 rights of Brian Funes were violated.

Section 24(2)

[73] In the event that my analysis with respect to s. 8 is in error it is necessary to consider s. 24(2) of the Charter.

[74] The Applicant, Brian Funes submits that in accordance with the guiding legal principles set out in R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353, the evidence obtained pursuant to the two Part VI Authorizations must be excluded.

Position of the Crown

[75] The Crown points to the following factors to support his position that the evidence ought not to be excluded:

The police acted in good faith and sought warrants.
Any perceived violation must be seen as inadvertent, minor and committed in good faith.
The intercepts were obtained by means of consent intercepts. It is only the electronic reproduction of the Applicant’s communication that attracts Charter protection. This added layer of intrusion namely, the electronic recording of the agent’s communication, diminishes the impact on the Applicant’s s. 8 Charter rights.
The Applicant is charged with a very serious offence and as such society’s interest in adjudication of this matter on the merits is high.
In the balancing of those factors the conclusion is that the administration of justice would not be brought into disrepute if the consent interceptions are admitted for substantive use.

[76] I agree with the position of the Crown. In the event that my analysis and conclusion with respect to Section 8 is in error, I am not satisfied that the intercepts evidence ought to be excluded.

[77] In Grant the Court set out the approach that the Court must follow pursuant to Section 24(2) commencing at paragraph 67. At paragraph 71 the Court states:

[71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

Seriousness of the Charter – Infringing State Conduct

[78] At paragraph 72 of the Grant decision the Court states:

[72] The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

[79] On this factor I have again considered the contents of the two ITOs in question. I have also considered the cross-examination of the affiant of the ITOs, Constable Kurtis Vaughan. I am not satisfied that in considering the totality of that evidentiary record that the seriousness of any breach rises to a level that would intrude on or erode the public’s confidence in the rule of law and its process. At paragraph 73 the Court states that “In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.”

[80] I am satisfied that the police acted in good faith in proceeding to obtain Part VI Authorizations. Constable Vaughan was required to prepare an ITO that contained sufficient information to support the request without including such an extensive and detailed recitation of the investigation to make the ITO unduly lengthy. I agree with the Crown’s submission that any deficits, evidentiary omissions or over inclusions represent the challenges and difficulties associated with a bona fide attempt to properly detail a large volume of information into a useful and manageable summary.

[81] As Grant clearly sets out at paragraph 70, “Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns.

[82] Constable Vaughan was in possession of an extensive amount of information relating to a homicide. The police decided it was necessary to utilize a Police Agent to stimulate conversation with Funes to assist in their investigation.

[83] The evidentiary record does not disclose any evidence of a blatant or callous disregard of the Charter rights of the Applicant.

[84] Constable Vaughan set out to provide to the issuing justice sufficient information about this investigation to support a Part VI Authorization. Even if a review of the ITOs established that some of the areas of the investigation should have been provided to the issuing justice in greater detail I do not find and conclude that it was done in a manner designed to disregard Funes’ Charter rights.

Impact of the Charter-Protected Interests of the Accused

[85] At paragraph 76 in Grant the Court states:

[76] This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

[86] At paragraph 78 the Court sets out that “an unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.”

[87] The Crown asserts that even in the absence of prior judicial authorization, the police are entitled to make use of individuals to approach persons of interest and talk to them and then testify about that conversation. The Crown submits that in these circumstances the fact that the conversation is electronically recorded diminishes the impact of the applicant’s right to control the use of his communications.

[88] There is no doubt that an individual has an expectation of privacy in a private verbal conversation and an expectation that such a conversation is not recorded, however, I am not satisfied in these circumstances that the impact on the accused’s privacy is such that it rises to a level of Charter violation.

Society’s Interest in an Adjudication on the Merits

[89] In Grant the Court set out the following at paragraphs 79 to 84:

[79] Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law”: R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20. Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.

[80] The concern for truth-seeking is only one of the considerations under a s. 24(2) application. The view that reliable evidence is admissible regardless of how it was obtained (see R. v. Wray, 1970 2 (SCC), [1971] S.C.R. 272) is inconsistent with the Charter’s affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of the evidence.

[81] This said, public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neither the accused’s interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.

[82] The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must therefore be weighed against factors pointing to exclusion, in order to “balance the interests of truth with the integrity of the justice system”: Mann, at para. 57, per Iacobucci J. The court must ask “whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial”: R. v. Kitaitchik (2002), 2002 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 47, per Doherty J.A.

[83] The importance of the evidence to the prosecution’s case is another factor that may be considered in this line of inquiry. Like Deschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.

[84] It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue. Indeed, Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society’s interest in its prosecution (para. 226). In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)’s focus. As pointed out in Burlingham, the goals furthered by s. 24(2) “operate independently of the type of crime for which the individual stands accused” (para. 51). And as Lamer J. observed in Collins, “[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority” (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

[90] In the circumstances of this case I am satisfied that this factor favours admission.

Balancing The Three Factors

[91] At paragraphs 85 and 86 Grant states the following:

[85] To review, the three lines of inquiry identified above — the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits — reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of “all the circumstances” of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.

[86] In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible. However, the preceding analysis creates a decision tree, albeit more flexible than the Stillman self-incrimination test. We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, a measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination.

[92] I am satisfied that in balancing the three factors set out in Grant the conclusion is that the administration of justice would not be brought into disrepute if the consent intercepts are admitted into evidence.

Fragomeni, J.

Released: March 13, 2015

CITATION: R. v. Alexis, Funes and Kelly, 2015 ONSC 1603

COURT FILE NO.: CRIM J (P) 479/13

DATE: 2015 03 13

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

and –

MARCUS ALEXIS, BRIAN FUNES and

KMAR KELLY

Applicants

RULING – Re: Section 8 & 24(2) of the Charter of Rights and Freedoms to Quash the Part VI Authorizations to intercept private communications and to exclude any evidence obtained

Fragomeni, J.

Released: March 13, 2015

R. v. Alexis, Funes and Kelly, 2015 ONSC 1603

Case Summary

ONTARIO

SUPERIOR COURT OF JUSTICE

RULING – Re: Section 8 & 24(2) of the Charter of Rights and Freedoms to Quash the Part VI Authorizations to intercept private communications

OVERVIEW OF THE ALLEGATIONS

POSITION OF THE APPLICANT:

POSITION OF THE CROWN:

GOVERNING LEGAL PRINCIPLES:

Grounds for Review

APPLICABILITY OF THE GOVERNING LEGAL PRINCIPLES TO THE CASE AT BAR:

ANALYSIS

CONCLUSION

Section 24(2)

Seriousness of the Charter – Infringing State Conduct

Impact of the Charter-Protected Interests of the Accused

Society’s Interest in an Adjudication on the Merits

Balancing The Three Factors

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 3