CITATION: R. v. Bevon Marshall et al, 2015 ONSC 3630
COURT FILE NO.: 30000461/14 DATE: 20150604
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Bevon Marshall, Michael Hinds, Alpha Water, Joshawa Dehond, and Daniel Wong
Accused
COUNSEL: Peter Fraser and David Steinberg, for the Crown James Miglin for Bevon Marshall, Laura Giordano for Michael Hinds, M. Wyszomierska for Alpha Water, R. Valentine for Joshawa Dehond, R. Fedorowicz for Daniel Wong
HEARD: February 9-11, 2015
GAROFOLI APPLICATION DECISION
A.J. O’MARRA J.:
[1] The applicants seek to exclude all evidence attained pursuant to a Part VI intercept authorization claiming a violation of the applicants’ s.8 Charter of Rights to be free from unreasonable search and seizure. The application has come to be known as a Garofoli Application.
[2] On April 19, 2013, Justice John McMahon granted an omnibus authorization in an investigation which included the following:
• an authorization to intercept private communications pursuant to ss.185 and 186; • a number recorder warrant pursuant to s.492.2(1); • a general warrant pursuant to s.487.01; • an order for the production of telephone records pursuant to s.492.2(2); • a tracking warrant pursuant to s.492.1; • an assistance order pursuant to s.487.02; and, • a sealing order pursuant to s.487.3 of the Criminal Code.
[3] Eleven persons were named in the authorizations. Two of the applicants, Joshawa Dehond and Bevon Marshall were named persons, and the other three applicants in this matter with standing, Michael Hinds, Daniel Wong and Alpha Water, had private communications intercepted as a result of the authorizations to intercept when they communicated with named persons.
The Crime Investigated
[4] The investigation commenced on February 25, 2009 as a result of an armed robbery which occurred at a pawn shop called The Swap Shop. During the robbery the store owner, Mark Law, was beaten, pistol whipped and ultimately shot through the abdomen as he tried to fight off the two armed men as they were trying to make off with a bag full of stolen jewellery. Mr. Law survived the attack, but suffered a permanent spinal injury.
[5] The police investigation, which included a security video that captured the events immediately preceding the robbery and the robbery, revealed that three persons were involved in the robbery. A young woman entered the store shortly before closing to purchase an item and who was seen to communicate by telephone to someone. She exited the store and returned briefly. As she exited again two armed assailants burst in through the door, one carrying a bat and the other a handgun. Both masked robbers were black. One of the robbers wore a red bandana over his face. He became involved in the struggle with the owner as he tried to force him into the back of the shop. During the struggle he lost the handgun. The other robber, who was carrying the baseball bat, wore a white bandana over his face and a black Toronto Blue Jays baseball cap. He proceeded to stuff jewellery into a backpack at the counter. He then went to assist the other robber in his struggle with the owner. He picked up the dropped handgun and fired shots at Mark Law striking him in the abdomen. The robbers fled store dropping the bag of stolen property and leaving behind the black Blue Jays baseball cap.
[6] Four shots had been fired during the robbery attempt and four 9 mm cartridge cases were recovered by police at the scene afterwards. The initial investigation did not result in an identification of the robbers. However, in August 2009 forensic analysis of the Blue Jay baseball cap at the Centre of Forensic Sciences for DNA yielded results for two DNA profiles of known offenders on the National Databank, Bevon Marshall and Joshawa Dehond.
[7] The young woman who had re-entered the store and let in the robbers was initially misidentified as Pauline Russo, but later identified as Tammy Barrett. Ms. Barrett pleaded guilty subsequently to her involvement in the robbery.
[8] Subsequent information from two confidential informants identified a number of persons of interest, Anthony Edwards (known as “Havoc”), Henok Mebratu (known as “Sherlock”), Rickello Robinson, and Michael Butcher associated with the applicants Bevon Marshall and Joshawa Dehond whose DNA profiles were consistent with those identified on the baseball cap.
[9] In 2009 the police obtained a number of production orders and search warrants in relation to cell tower activity for cell phones in the vicinity of the swap shop robbery of Marshall and Dehond and their identified associates.
[10] In terms of associated telephone records, on May 12, 2009 an authorization was granted for telephone number 905-550-0560 associated to Michael Butcher. On May 29, 2009, a warrant to search the communication systems of Telus Communications in reference to telephone number 647-207-2241 another telephone number associated with Michael Butcher was obtained. On June 8, 2009, another search warrant was obtained to obtain records relating to telephone number 416-799-9308, a number associated with Henok Mebratu. On October 1, 2009 a warrant was granted authorizing the production of records relating to telephone number 647-206-9397 associated with Bevon Marshall.
[11] On March 18 and 19, 2013 the police obtained judicial authorizations for numbers associated with Bevon Marshall and the mother of Joshawa Dehond, Barbara Dehond: a number recorder warrant, an order for the production of telephone records, a tracking warrant, an assistance order and sealing order.
[12] Similarly, on March 27, 2013 the same authorizations were obtained in reference to telephone numbers for Joshawa Dehond, his mother Barbara and Rickello Robinson.
[13] Evidence obtained as a result of the omnibus authorization granted April 19, 2013 to intercept private communications led to charges being laid in the Swap Shop robbery and several other unrelated offences:
Bevon Marshall and Alpha Water are charged with the following offences relating to the Swap Shop robbery: • Attempt murder; • Discharge firearm with intent • Aggravated assault • Robbery with firearm • Possession of loaded restricted firearm • Disguise with intent
Bevon Marshall and Daniel Wong are charged with conspiracy to commit robbery on May 8, 2013.
Bevon Marshall is further charged with the offences: • Trafficking cocaine, May 15, 2013 • Attempt unauthorized possession of firearm, June 5, 2013 • Attempt to possess firearm knowing it is unauthorized, June 5, 2013 • Possession of cocaine for the purpose of trafficking, June 6, 2013
Joshawa Dehond is charged with attempt robbery, April 25, 2013.
Michael Hinds is charged with the trafficking of a firearm, April 29, 2013.
[14] The applicants seek to exclude all of the wiretap evidence obtained pursuant to the authorization on the basis that the information to obtain the authorization “did not disclose reasonable and probable grounds to believe that the interception of the various communications will afford evidence of the offences being investigated”.
The Authorization
[15] Section 186 of the Code sets out the two pre-conditions to the issuance of a non-consent wiretap order:
186(1) An authorization under this section may be given if the judge to whom the application is made is satisfied a) that it would be in the best interests of the administration of justice to do so; and b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would make it impractical to carry out the investigation of the offence using only other investigative procedures.
[16] La Forest J. noted in R. v. Duarte, 1990 CanLII 150 (SCC), [1990] S.C.J. 2 at para. 24, following the approach taken by Martin J.A. in R. v. Finlay and Grellette (1985), 1985 CanLII 117 (ON CA), 23 C.C.C. (3rd) 48, (leave to appeal refused, [1996] 1 S.C.R. ix) with respect to satisfying the first condition under s.186 (1)(a) there must be as a minimum requirement reasonable probable grounds to believe an offence has been or is being committed and that the authorization sought will afford evidence of that offence. (See also R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] S.C.J. 115 at para. 35).
[17] The second requirement under s.186(1)(b) sets out three alternative ways of satisfying the requirement:
Other investigative procedures have been tried and have failed, or other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would make it impracticable to carry out the investigation of the offence only using other investigative procedures.
[18] Le Bel J. in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 34 quoting from his reasons in R. v. Hiscock, 1992 CanLII 2959 (QC CA), [1992] 72 C.C.C. (3rd) 303 when he sat on the Quebec Court of Appeal observed that s.186(1)(b) does not require all alternative investigative techniques to have been tried such that the wiretap as an investigative technique is one of last resort. It is the technique that can be employed not only when other methods have failed, but also, when they appear to have little chance of success or when the urgency of the matter would otherwise render the investigation unsuccessful. The authorizing judge must be satisfied that intercepting private communications is not a “mere fishing expedition based on pure suspicion”. In considering the application the justice must keep important values of Canadian society in sight and “look seriously at whether there is, practically speaking, no other reasonable alternative method of investigation”.
The Review
[19] The issue for the reviewing justice on such applications is to decide whether in the totality of the circumstances the issuing justice could have been satisfied that reasonable grounds existed to issue the authorization. The review of the authorization is only as to the sufficiency of the information supporting the authorization. In R. v. Garofoli, supra, at para. 56 it is stated:
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 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.
[20] On the application before this court the Crown provided a copy of the information to obtain (ITO), 118 pages plus appendices, from which certain information has been redacted. The redacted detail relates to information pertaining to two confidential informants, referred to as CS1 and CS2 in the ITO, so as to protect informant privilege as set out in R. v. Leipert (1997), 1997 CanLII 367 (SCC), 112 C.C.C. (3rd) 385 (SCC) at para. 9.
[21] The principal sources of information set out in the ITO by the affiant for review are:
• The unredacted confidential informant information. • The DNA results matching the profiles of Bevon Marshall and Joshawa Dehond taken from the black Blue Jays baseball cap left at the scene of the robbery by one of the two robbers. • Evidence of association between the named parties, Bevon Marshall and Joshawa Dehond and the others from an area known as Chester Le in Toronto. • The telephone contacts between the named persons as ascertained by the execution of telephone number recorder warrants.
[22] In reviewing the information as redacted, the reviewing court “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 been issued”. (See R. v. Araujo, supra, at para. 51, citing R. v. Bisson, 1994 CanLII 46 (SCC), [1994] 3 S.C.R. 1097 at p.1098)
[23] The issue on the review is whether there are reasonable and probable grounds in the redacted ITO, which in this instance the Crown chose not to amplify, to believe that the authorization would afford evidence of the offence that occurred.
[24] The applicants contend that the remaining confidential informer information does not meet the R. v. Debot criteria of being compelling, credible and corroborated. (R. v. Debot (1989), 1989 CanLII 13 (SCC), 52 C.C.C. (3rd) 193 (SCC), at paras. 53, 60). The reviewing court should disregard all the information provided by the confidential informants and consider the remaining information as a review de novo. The remainder of the ITO is insufficient to support the issuance of the authorization.
[25] The applicants argue that CS1 gave conflicting information on a material issue, the identification of one of the persons involved in the robbery. CS1 provided two nicknames of persons said to have been involved in the robbery, “Sherlock” and “Havoc” and that the later had been involved in a previous incident where he had been arrested by the police. CS1 also provided the name of Michael Butcher. On searching previous occurrences police identified aliases of Sherlock as Henok Mebratu, and Havoc as Anthony Edwards. However, the intricate details of a previous arrest said to have involved Havoc matched those involving a person known as Rickello Robinson. The police obtained a photograph of Robinson taken shortly before the Swap Shop robbery in which he had close cropped hair. He was excluded as one of the two robbers, who had a corn row hairstyle, during the investigation because his hair could not have grown that long between the time of the photograph and the robbery. However, he was not excluded as a suspect because of his close association with Marshall and Dehond and others in the Chester Le Blvd. area gang activity.
[26] CS1 was considered reliable and credible because he or she was able to relate the details of the robbery at the Pawn Shop to the investigators, such as the robbers’ struggle with the owner in which he was shot with a 9mm handgun (9mm casing found at the scene) and that after the shooting the robbers dropped the bag as they fled. The CS1 said the shooting was not supposed to have happened but the guy was fighting with them (the robbers) and would not give up, a description consistent with the victim's statement and the surveillance video of the robbery.
[27] CS2, a registered source, provided information on an earlier occasion to the police as to the gang activity and membership in the Chester Le Blvd area. He identified three persons of interest in the police investigation of the robbery as members of the Chester Le Bloods, also known as the Down Bottom Bloods, Josh Dehond, Bevon Marshall and Henok Mebratu.
[28] The principal information available to the police to associate Marshall and Dehond with the robbery was the results of the DNA profiles obtained from the hair and cutout from the Toronto Blue Jays baseball cap left at the scene of the crime. Even though Dehond is white and the two robbers seen in the surveillance video are black, there was evidence that more than the two robbers were involved in the circumstances of the robbery. All of the information provided by the investigation and the confidential informants which led to the identification of individuals, Mebratu, Robinson, Edwards and Michael Butcher were associated to Marshall and Dehond through telephone communication activity and as members of the Down Bottom Bloods, a street gang operating out of Chester Le Blvd area.
[29] The affiant carefully pointed out the differences between the information provided by CS1 and what the police learned through their subsequent investigation. It demonstrates both good faith and attempt by the affiant to be accurate and fair. (See R. v. Kesselring (2000), 2000 CanLII 2457 (ON CA), 145 C.C.C. (3d) 119, 132 O.A.C. 41(C.A.) at para. 33). There is nothing to suggest any fraud, non-disclosure, or misleading evidence in the ITO that was before the authorizing justice. On a review of the redacted ITO, the information provided by the affiant considered as a whole provided reasonable grounds to grant the authorization.
[30] Even if the informant information was excluded from consideration, as the applicants suggest because of the conflict in the identification information provided by CS1, which led to the identification of Edwards (Havoc) and Robinson (the circumstances of a previous arrest said to have involved a person with the alias of Havoc), in this instance, the remainder of the information, principally the discovery of the DNA on the baseball cap left by one of the robbers, and evidence others were involved, was sufficient to obtain the authorization relating to Bevon Marshall and Joshawa Dehond as affording evidence relating to the crime committed.
[31] With respect to the applicants’ contention that the police did not exhaust all “reasonable alternative methods of investigation” the ITO sets out fairly and reasonably the limits of any further investigative approaches in the circumstances:
• To interview the persons of interest would have alerted them to the investigator’s interest and compromise the outcome of the investigation without evidence being gathered. • An undercover police officer could not have been utilized because the investigation revealed that the persons named belonged to a very tight-knit group with personal relationships developed over a long period of time. An unknown person entering into the group in an attempt to obtain information about the robbery would have risked jeopardizing the investigation by creating suspicion and paranoia and a cessation of communications between the persons of interest. Additionally, the safety of an undercover officer would have been of concern given the propensity for violence and the use of firearms as in the offence under investigation. • The earlier production orders and search warrants provided valuable information in terms of the relationships and communications between the persons of interest however, it was limited to establishing links but not sufficient evidence to lay charges. • Surveillance had been undertaken, however, it did not provide information necessary to charge any of the involved parties. Although surveillance would continue to be used in conjunction with the proposed authorization and investigative plan to stimulate conversation.
[32] I find no merit in the argument that there were other reasonable alternative methods available to the police at the time the authorization to intercept private communications was sought.
[33] I am satisfied, on the basis of the unredacted information as set out in the information to obtain that the authorizing justice could have granted the authorization at issue.
[34] A s.8 Charter violation has not been made out by the applicants with respect to the granting of the authorization and as such the results of the intercepted communications will be allowed in evidence.
[35] In a supplementary application, the applicants submit that the police obtained personal information without a warrant from the City of Toronto Neighbourhood Services for Rickello Robinson, Michael Butcher, Joshawa Dehond, Bevon Marshall, Andrew Gardner, and Pauline Russo which included telephone numbers and contact information. The information was obtained to further the investigation in analyzing number recorder results and to obtain new number recorder warrants. The applicants’ contend that the parties had a reasonable expectation of privacy in the information obtained and as a result, without prior judicial authorization their s.8 Charter Rights was violated.
[36] I find that there is no merit to the supplementary application on the basis that the inquiries were made lawfully under the Ontario Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31as amended s.42(1)(g). The disclosure of personal information collected by government entities is authorized, “where disclosure is to an institution or a law enforcement agency in Canada to aid in an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result”. (See also R. v. Serre, 2011 O.J. No 6411 (SCJ)).
[37] The information the applicants seek to exclude, phone numbers and other contact information as maintained by Ontario Works in my view is not information the parties would have a reasonable expectation of privacy. However, even if disclosure was a violation of s.8, I would not exclude the evidence as cited in the ITO under s.24(2) of the Charter considering the criteria as set out in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32.
[38] In the result the application is dismissed.
A.J. O’Marra J.
Released: June 4, 2015
CITATION: R. v. Bevon Marshall et al, 2015 ONSC 3630 COURT FILE NO.: 30000461/14 DATE: 20150604
ONTARIO SUPERIOR COURT OF JUSTICE
Her Majesty the Queen
– and –
Bevon Marshall, Michael Hinds, Alpha Water, Joshawa Dehond, and Daniel Wong
Accused
GAROFOLI APPLICATION DECISION
A.J. O’Marra J.
Released: June 4, 2015