CITATION: Her Majesty the Queen v. Sethi et al., 2015 ONSC 684
NEWMARKET COURT FILE NO.: 14-03515
DATE: 20150130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Crown/Respondent
– and –
Manjit Sethi, Quoc Tang and Waseem Iqbal
Applicant
Geoffrey Roy and Joseph Selvaratnam, for the Crown/Respondent
Ravin Pillay, for the Applicant Manjit Sethi
HEARD: January 19, 20 and 21, 2015
RULING ON THE GAROFOLI APPLICATION OF MANJIT SETHI
BIRD J.:
Introduction
[1] The Applicant, Manjit Sethi, and his 2 co-accused, are charged with drug and weapons offences. Pursuant to Section 24(2) of the Charter, the Applicant seeks to exclude evidence obtained from a judicial wiretap authorization issued by Pardu J. on May 19th, 2010. He submits the authorization was obtained in contravention of his Section 8 Charter rights. The Applicant attacks the authorization on three grounds. First, he alleges that the affidavit did not disclose reasonable and probable grounds to believe that the authorization would afford evidence of the offences specified. Second, the Applicant submits that the affiant failed to provide particulars of the offences as required by Section 185(1) (c) of the Criminal Code. Third, he contends that the affidavit did not satisfy the requirement of investigative necessity as set out in Section 186(1)(b). As a result of these deficiencies, the Applicant argues that the authorization ought not to have been issued.
General Legal Principles on a Review
[2] The law in relation to the standard to be applied by a reviewing judge is well established. The proper standard of review is: based on the record before the authorizing judge, as amplified by the record before the reviewing judge, could the authorizing judge have granted the authorization. The reviewing judge does not conduct a de novo hearing nor substitute his or her view for that of the authorizing judge. Put another way, the decision of the authorizing judge should not be set aside unless the reviewing judge is satisfied that there was no basis for the authorization (R v. Garofoli 1990 CanLII 52 (SCC), [1990] S.C.J. No 115 at paragraphs 55, 56 and 62).
[3] In conducting my review in this case, I accept the Applicant’s submission, based on the decision in Duarte, about the level of care that must be applied when dealing with Part VI authorizations. The Court acknowledged that electronic surveillance is the greatest leveller of human privacy and that intercepts allow the police to enter our homes uninvited and contrary to every reasonable expectation of privacy that most people have (R v. Duarte 1990 CanLII 150 (SCC), [1990] S.C.J. No. 2 at paragraphs 22 and 37).
[4] There is no question that without strict compliance with the statutory requirements of Sections 185 and 186, the wiretap is illegal and therefore unconstitutional (R v. Pires 2005 SCC 66, [2005] S.C.J. No. 67 at paragraph 8). However, it must also be remembered that a Garofoli application is not a trial. It is an application in relation to the admissibility of evidence. As a result, it is not intended to test the merits of any of the allegations in respect of the offences. The truth of the allegations is to be tested at the trial proper (Pires at paragraph 30). This is an important distinction. The affidavit need not disclose reasonable and probable grounds to charge the Applicant with any of the named offences. It is sufficient if it provides reasonable grounds to believe that intercepting his communications may assist the investigation into the offences specified (R v. Ebanks 2009 ONCA 851, [2009] O.J. No. 5168 at paragraph 33).
[5] Furthermore, as directed by our Court of Appeal in Spackman, I must review the affidavit as a whole, not in a piecemeal fashion. I am also obliged to accept the ability of the authorizing judge to draw reasonable inferences from the contents of the affidavit (R v. Spackman 2012 ONCA 905, [2012] O.J. No. 6127 at paragraph 223).
The Requirement of Reasonable and Probable Grounds
[6] The Applicant submits that the affiant failed to disclose reasonable and probable grounds to believe that evidence of the offences specified would be obtained through intercepted communications. He alleges that no particulars of the offences were provided and that, at the highest, the affidavit disclosed only a suspicion that offences might be committed. The Applicant’s position is that this authorization was an intelligence gathering exercise.
[7] With respect to the standard that must be met on the issue of the existence of reasonable and probable grounds, the affidavit must disclose more than suspicious conduct (R v. Morelli 2010 SCC 8, [2010] S.C.J. No. 8 at paragraphs 94 and 95). There must be more than a hope that the targets might speak about some possible future offence (R v. Lee 2001 BCSC 1649, [2001] B.C.J. No. 2984 (B.C.S.C.) at paragraph 74). As stated in Grant, wiretap authorizations cannot be used to uncover evidence of unknown crimes or to prevent criminal activity in the future (R v. Grant 1998 CanLII 17678 (MB CA), [1998] M.J. No. 474 (Man. C.A.) at paragraphs 26 and 27).
[8] Section 185(1)(c) requires the affiant to provide the facts to justify the belief that an authorization should be given together with the particulars of the offence. The Applicant alleges that the affidavit of Detective Ibbott failed to satisfy this statutory requirement. He submits that at the highest, the affiant hoped that intercepts might afford evidence of some unspecified drug offences. In Lee, Cullen J. found that Section 185(1)(c) requires that there be an identifiable transaction or series of transactions, that actually exist. In other words, the subject offences must be within the contemplation of the targets and identifiable by particulars in the affidavit (Lee at paragraph 71). Clearly, the police cannot use Part VI authorizations to engage in a fishing expeditions in relation to hypothetical or imaginative offences.
[9] However, it must be remembered that when they are applying for a Part VI authorization, the police are still in the investigatory stage. It is therefore unrealistic to expect great particularity (R v. Della Penna 2012 BCCA 3, [2012] B.C.J. No. 11 (B.C.C.A.) at paragraph 25). As stated by Justice Nordheimer in Lucas, “it is not a fishing expedition to conduct an investigation where the general presence of criminal activity is known but the precise details of individual occurrences are not.” (R v. Lucas 2009 CanLII 27837 (ON SC), [2009] O.J. No. 2252 (Ont. S.C.J.) at paragraph 39). While Nordheimer J. was dealing with a case that involved an investigation into a street gang, similar issues arise in the investigation of multiple people involved in the importation and distribution of drugs.
[10] Providing particularity is not difficult when the authorization relates to a specific offence that has already occurred, such as a murder. The task becomes more challenging when the police are investigating ongoing offences, such as importing, trafficking and conspiracy, which are by their very nature more general. It normally will not be possible for the affiant to know, in advance, the precise date drug activity will take place on and what the specific details of the transactions will be. If the police had this level of information about the criminal activity, they likely would not need to resort to the provisions of Part VI. In my view, there must be sufficient information in the affidavit to allow the authorizing judge to determine whether there are reasonable and probable grounds to believe that intercepting private communications will afford evidence in relation to one or more of the offences specified in the application.
[11] Detective Ibbott’s affidavit is lengthy and details an investigation that lasted several months. It is helpful in my analysis on the issue of whether reasonable and probable grounds existed to summarize the information the affiant had by category.
Confidential Source Information:
[12] Confidential Source #1 (CS1) provided information to his or her handler, an RCMP officer, that was relayed to the York Regional Police in October of 2009. CS1 also spoke directly with a York Regional Police officer sometime during the week of October 6th, 2009 and provided further information directly to that officer. CS1 provided information that was based on first-hand knowledge and also information which s/he received from “third parties involved in the drug trade”. The identity of these third parties is not known and it is also not known whether it was one or more third parties who gave CS1 information.
[13] Confidential Source #2 (CS2) provided information to a York Regional Police officer between January and April of 2010. Some of the information was based on first-hand knowledge, some is described as “information from second-hand knowledge”, some as “third party information” and some as “information from third parties involved in the drug trade”. As with CS1, the identities of the second and third parties are not known and it is also impossible to know from the affidavit how many different people CS2 received information from. The Crown submits that the use of the term “second-hand knowledge” by the affiant should be interpreted to mean that this person (or persons) was close to the activity in question. In my view, such an interpretation would be speculative. The affiant does not provide any details about the source of the “second-hand knowledge”. It may be that this person (or persons) was present and made direct observations which were then reported to CS2. It is possible that this person (or persons) spoke directly with people involved in the drug activities that are described. However, it is equally possible that the person providing the second-hand knowledge received his or her information from someone else. It is impossible to know based on the affidavit.
[14] The Applicant raises significant and legitimate concerns about the ability to evaluate the information provided by the confidential sources in this case because most of it is not based on personal knowledge. The affiant provided information that allowed the authorizing judge to assess the credibility of the 2 sources based on their prior involvement with the police in terms of providing information, the fact that neither of them have criminal convictions for crimes of dishonesty, any motivation they had to provide information and their association to people involved in the drug trade. This information is helpful in assessing the credibility of the 2 sources. However, there is no such information about the third parties involved in the drug trade and/or the people who provided CS2 with second hand information. There is nothing in the affidavit that provides any information that could assist in evaluating the credibility of these people. Therefore, caution must be exercised when dealing with the confidential source information. It is important to separate the information that the sources provided based on their first-hand knowledge and that which they received from unknown people.
First-hand Knowledge Provided by CS1:
Mr. Chan drove a black truck with BC plates that he parked in the underground of his condo building.
Provided police with Mr. Chan’s cellular phone number.
Said that Mr. Chan communicated in a particular way with Mr. Sethi.
Provided police with Mr. Pang’s cellular phone number.
Provided police with Mr. Sethi’s cellular phone number.
Had information about a person associated to Mr. Chan.
Knew that as of the first week in October, 2009 Mr. Chan was living at 9015 Leslie Street.
[15] The police were able to confirm this information. The affiant attended at the condo building and confirmed that Mr. Chan had been renting unit 1218 since October 1st, had identified himself with a B.C. driver’s licence and had an assigned parking spot in the underground. The officer observed a black truck with B.C. plates in that spot. He also saw Mr. Chan and Mr. Pang leave the condo building in the black truck.
[16] The fact that CS1 had detailed and current knowledge about Mr. Chan’s life suggests that s/he knew Mr. Chan well and was able to provide reliable information about him. However, nothing CS1 told the police based on his first-hand knowledge provided any reason to believe that Mr. Chan was involved in illegal activities.
First-hand Knowledge Provided by CS2:
Paragraph 58(e) of the affidavit contains relevant information that has been largely vetted out about Ritesh Thakur. I viewed the un-redacted affidavit pursuant to Step 6 of Garofoli. The information is general in nature, but is relevant to the affiant’s grounds.
Advised that 3 unknown Asian males were accessing “the East Indian drug importers” for their illicit drug supply. No further information was provided about the East Indian drug importers and it would be speculative to suggest that it was any one of the named parties.
[17] Aside from the general information provided about Ritesh Thakur, CS2 does not provide information that would provide the affiant with reasonable grounds to believe that the named offences had occurred or were occurring. The Thakur information was not detailed and there was no explanation given for how CS2 knew about it. The affiant was able to confirm some of the personal details provided about Mr. Thakur, but not the relevant information.
Second-hand Knowledge Provided by CS1:
Mr. Chan had a stash house in Toronto (the general location was provided but vetted out).
Mr. Chan oversaw the receipt of cocaine shipments for Mr. Pang and several other people in Toronto. The cocaine was transported from the U.S. by truck drivers.
Frequency of shipments and amounts were provided by CS1 but vetted out.
CS1 speculated that Mr. Pang came to Toronto to oversee the arrival of cocaine.
Once the cocaine was picked up, it was kept in a stash house (not 9015 Leslie Street) for several days until it was sold.
Information was provided about a shipment of cocaine in September of 2009.
[18] On its face, this information supports the affiant’s stated belief that the offences of importing, trafficking and possession of cocaine for the purpose of trafficking were occurring, at least in relation to Mr. Chan. However, the information was dated, having been provided in October of 2009, 7 months before the authorization was signed. The affidavit is silent about whether the affiant made any effort to get updated information from CS1. More concerning is the fact that all of the information comes from “third parties involved in the drug trade”. Because the affiant does not know who these people are, he could not provide any information at all about their credibility. There is also a total void about the basis of their purported knowledge.
Second-hand Knowledge Provided by CS2:
Mr. Sethi was involved in importing ephedrine from India.
Mr. Sethi wanted the transporting routes changed. Further information which was vetted out was provided on this issue.
Information was provided about Mr. Sethi’s partner in importing ephedrine. I viewed the un-redacted affidavit and this information was general in nature.
Information was provided about a shipment of ephedrine to Mr. Sethi.
Mr. Sethi owns a nightclub called XS in downtown Toronto.
[19] As with the information CS1 received from third parties, this information, on its face, supports the affiant’s belief that Mr. Sethi was importing ephedrine into Canada. Although ephedrine is a Schedule VI substance and it is an offence to import it unless authorized under the regulations, the importation of ephedrine was not one of the named offences in paragraph 1 of the affidavit. CS2 does not provide any information, from either first or second-hand knowledge, about what Mr. Sethi was doing with the ephedrine he was said to be importing. The affiant stated in his affidavit that he knew that ephedrine is used in the production of methamphetamine. It may be that importing ephedrine is consistent with being involved in producing methamphetamine, but absent any additional information, the importation alone does not rise to the standard of providing reasonable and probable grounds to believe that Mr. Sethi was producing methamphetamine in the spring of 2010.
[20] Furthermore, this second-hand information is subject to the same frailties as noted above in relation to CS1. There is no basis upon which the credibility of the person or persons providing this information can be assessed. It is impossible to know whether the person or persons who gave CS2 the information made direct observations or was reporting rumours. The information is fairly general in nature and falls short of being compelling. The only aspect of the information the police were able to confirm related to the nightclub. The affiant used the internet to verify that a club named XS exists in downtown Toronto. This fact would obviously be known to countless people. Mr. Suri was found to be in possession of a business card for XS when he was investigated by the police (in the company of Mr. Chan) in December of 2009.
[21] As a result of the frailties of the information provided by the confidential sources, it would be insufficient standing on its own to provide the necessary grounds for the authorization. However, the affidavit must be assessed as a whole. The Applicant submits that the confidential source information ought to be given no weight and that when it is excised from the affidavit, there is not enough remaining to establish reasonable and probable grounds.
[22] The starting point for assessing information from confidential sources is the Supreme Court of Canada’s decision in Debot. There are 3 questions that must be asked: was the information compelling, was it confirmed and was the source credible (R v. Debot 1989 CanLII 13 (SCC), [1989] S.C.J. No. 118 at paragraph 53). With respect to corroboration, it is not necessary for the police to confirm every detail of the informer’s information (Debot at paragraph 63) nor is it necessary to have proof that the informer is telling the truth about the alleged criminal activity (R v. Caissey 2007 ABCA 380 at paragraph 23, affirmed 2008 SCC 65, [2008] S.C.J. No. 66). However, where it is impossible to assess the credibility of the source, a higher level of verification may be required. The reliability of any informer information must be assessed in the “totality of the circumstances” (Garofoli at paragraph 68).
[23] There is no question that the fact that both CS1 and CS2’s relevant information is not based on first hand knowledge calls for increased scrutiny. The important distinction between direct observations made by the source and information from an unknown source was recognized by the Ontario Court of Appeal in Rocha (R v. Rocha 2012 ONCA 707, [2012] O.J. No. 4991 at paragraph 26). In Lewis, Justice Doherty stated that when information is received from an informer who does not disclose how he or she came to know about the alleged activity, the value of the tip depends on the nature of the information and the extent to which it can be confirmed (R v. Lewis 1998 CanLII 7116 (ON CA), [1998] O.J. No. 376 (Ont. C.A.) at page 5).
[24] While the Applicant submits that the fact that the information of value provided by the confidential sources in this case must be entirely disregarded because it is not based on direct knowledge that position is not consistent with the relevant authorities. As indicated above, our Court of Appeal does not mandate this approach in Lewis. Rather, all of the source information has to be assessed in the context of the affidavit as a whole to determine whether it was compelling, credible and corroborated.
[25] This was the approach taken by Justice Dambrot in Riley. He acknowledged that it is not unusual for affiants to include information from confidential informers without disclosing the source of their knowledge. Dambrot J. accepted that this affects the weight that may be given to the information but held that it does not result in it automatically having no value. The value of the information can only be assessed upon an examination of all of the circumstances (R v. Riley 2009 CanLII 7177 (ON SC), [2009] O.J. No. 738 (Ont. S.C.J.) at paragraphs 121 and 125). Justice Nordheimer followed this approach in Lucas and found that information from informers with no established track record, which included some that was not sourced, still had some measure of reliability to it based on the corroboration that was available (Lucas at paragraphs 26 and 27). Similarly, in McLaughlin, Justice Dawson found that strengths in the informer’s background could compensate to some degree for the fact that there was no indication of how the informer came into possession of the information (R v. McLaughlin [2005] O.J. No. 1156 (Ont. S.C.J.) at paragraph 84).
[26] With respect to the information provided by CS1, it is clear that he or she knew Mr. Chan quite well, based on the personal details that were provided, all of which were confirmed by the police. CS1 knew that Mr. Chan was associated with both Mr. Sethi and Mr. Pang (something that was confirmed extensively through the DNR’s and video surveillance). The informer also provided information about current activity by Mr. Chan in relation to the importation and distribution of cocaine. Specifically, CS1 advised that Mr. Chan oversaw the importation of cocaine that was being brought into Canada by truck drivers from the U.S. This is precisely the same method that Mr. Chan is alleged to have utilized to import cocaine in 2007, as disclosed by the intercepts in Project E-Paragon. I am satisfied that based on this corroboration, the information provided by CS1 was entitled to some weight. The weaknesses in the information would have been apparent to the authorizing judge. The affiant made it clear that most of the relevant information from CS1 came from third parties involved in the drug trade. However, assessing it in the totality of the circumstances, as I am required to do, I find that it is some evidence that Mr. Chan was involved in the importation and distribution of cocaine.
[27] The information from CS2 about Mr. Sethi’s involvement in importing ephedrine falls into a different category. There is nothing in the affidavit that provides any confirmation of any of this information. It is quite general in nature and cannot be described as compelling. CS2 provided far fewer personal details about Mr. Thakur than CS1 did in relation to Mr. Chan and they were not all confirmed to be accurate. In my view, there is insufficient detail in the information provided by CS2 and insufficient corroboration to compensate for the fact that it emanates from a second hand source. As a result, I place no weight on it in assessing whether there was any basis upon which the authorization could have been granted.
Physical Surveillance
[28] The police conducted some traditional physical surveillance in January and March of 2010. The Applicant strongly submits that more surveillance should have been undertaken and I will address those concerns when dealing with investigative necessity. The targets of the physical surveillance were Mr. Sethi and Mr. Suri. There is nothing in the affidavit to suggest that any physical surveillance was attempted in relation to the other named targets, including Mr. Chan and Mr. Thakur. The physical surveillance did not result in much information of value to the investigation. It confirmed the association between Mr. Sethi and Mr. Suri and between Mr. Suri and David Pang (another principal known party), but did not provide any evidence that they were engaged in illegal activity.
[29] However, on January 29th, 2010 Mr. Sethi and Mr. Suri were followed to the Sogo Sports Bar on Sheppard Avenue in Toronto. They went inside the bar and stayed there for some time. This bar is owned by Vincent Tang, who is listed as one of the other known persons in the authorization. On February 17th, 2010, a search warrant was executed at the Sogo Sports Bar and officers seized a small amount of cocaine and methamphetamine and a large amount of cash. On March 16th, Mr. Suri and Mr. Sethi drove to the parking lot of a Sheraton Hotel. An unknown male approached Mr. Suri’s vehicle, placed a box in the trunk and then walked away. After dropping Mr. Sethi off, Mr. Suri went home. Another unknown male arrived at Mr. Suri’s house. He and Mr. Suri went to Mr. Suri’s car and the male removed a box from the trunk and then left.
Video Surveillance from 9015 Leslie Street
[30] The condo building at 9015 Leslie Street had an existing video surveillance system which the police were given apparently unlimited access to. In addition, in late January of 2010, the police installed a camera in the hallway on the 12th floor, giving them the ability to see who was entering and leaving Mr. Chan’s apartment. Generally speaking, the video footage confirmed the association between Mr. Chan, Mr. Suri and Mr. Sethi who were regular visitors to his apartment. In fact, Mr. Suri had a key fob to enter the building. In addition, on certain dates people carried bags to and from Mr. Chan’s apartment – an activity the Crown alleges is consistent with drug dealing.
[31] Specifically, on November 1st, 2009, Mr. Suri went up to the 12th floor carrying shopping bags. He left the building with bags. That same evening, Mr. Suri went to the 12th floor carrying gift bags. Half an hour later, he left the building and went to the back of a vehicle that was parked in the visitors’ parking lot. Mr. Suri came away from the vehicle carrying a garbage bag which he took into the building and up to the 12th floor. Shortly after that happened, Mr. Sethi arrived. He was dropped off by what appeared to be the same vehicle that Mr. Suri had approached in the parking lot. Later that evening, Mr. Suri left the building carrying a garbage bag that the affiant described as looking different than the one he had earlier. Mr. Suri walked to a vehicle that was stopped outside of the area covered by the cameras but returned to the building without the bag.
[32] On November 3rd, Mr. Suri was driving a car into the entrance area of the condo. He met up with another vehicle, removed a large box which contained 2 smaller boxes and entered the condo building. Mr. Suri left the building but returned later and carried a shopping bag to the 12th floor. He left the building after a short time, carrying a full garbage bag and the shopping bag and put the bags in a car that had arrived at the building. The vehicle left the area and Mr. Suri returned to the building. Mr. Sethi then arrived carrying a gift bag. He went to the 12th floor and left after half an hour. Mr. Suri left the building later but returned in the evening with a gym bag which he took to the 12th floor. Mr. Suri was driven to the building by someone in a car that remained in the area when he exited. Mr. Suri left the building within 5 minutes and the affiant described the gym bag as appearing to be filled with more unknown objects. Mr. Suri put the bag into the back of the vehicle that he arrived in. The car drove off and Mr. Suri returned to the building. Mr. Sethi arrived at the building and left half an hour later carrying a small bag containing unknown objects that the affiant described as looking like stacks of money. Mr. Sethi spoke with an unknown person in a vehicle outside the building. Mr. Suri left the building a short time later carrying a gift bag and talked to the same unknown person.
[33] On November 6th, Mr. Sethi and Mr. Suri arrived at the building together and both were carrying small bags. Akil Noorbhai (a principal known person) arrived in his car and met Mr. Suri and Mr. Sethi. He removed a large hockey bag from his car and all 3 men went to the 12th floor. They left 10 minutes later empty-handed. Mr. Suri left on foot while Mr. Sethi and Mr. Noorbhai left in the car. A short time later, Mr. Suri returned carrying a gift bag. Mr. Noorbhai came back carrying a small shopping bag. He left the building after 10 minutes carrying the hockey bag that the affiant described as appearing fuller than it was earlier in the day, and the gift bag that Mr. Suri had brought.
[34] On November 24th, Mr. Pang arrived at the building carrying a brown bag. He used a key fob to enter and went to the 12th floor. On other days in November, Mr. Pang was at the building and met up with unknown men who went with him to the 12th floor.
[35] On December 23rd, Mr. Suri and Mr. Sethi arrived at the building together. Mr. Suri left the building and met up with an unknown man who had arrived in a van. Mr. Suri came away carrying a gift bag and went back up to the 12th floor. Mr. Sethi then exited and talked to the same unknown man in the lobby of the building.
[36] On December 24th, Mr. Sethi and Mr. Suri arrived at the building together. Mr. Suri later left and returned carrying a gift bag. A female visited the apartment and left after several hours with Mr. Sethi. She was carrying a large gift bag.
[37] On December 31st, Mr. Sethi and a female arrived at the building. Mr. Sethi had a small gift back with him. Mr. Sethi and the female left the building with Mr. Chan who was now carrying the bag, Mr. Pang and another female.
[38] On January 5th, 2010, Mr. Sethi arrived at the building carrying a white shopping bag. While he was at the building, Mr. Sethi was to the front door and let an unknown man into the building who he then spoke with.
[39] On Jan 8th, in the evening Mr. Sethi and Mr. Suri arrived at the building together. Mr. Suri was carrying a shopping bag.
[40] Mr. Chan was in British Columbia from January 22nd until March 12th of 2010 and no activity was observed at his condo building.
[41] On March 12th, Mr. Wu attended the condo with an unknown male who was pulling a suitcase. When Mr. Wu left after midnight he was carrying a gift bag.
[42] On March 29th, Mr. Suri arrived at the building carrying a bag over his shoulder. He went to the 12th floor. When he left the building 10 minutes later he did not have the bag. Later that evening, Mr. Chan left the building carrying a box which he took out of view of the cameras outside. When he returned to the building he did not have the box.
[43] On April 4th, Mr. Pang went to the front door of the building and met an unknown male and an unknown female. All 3 went to Mr. Chan’s apartment. The unknown male was carrying a knapsack. When that male later left the apartment he did not have the knapsack. Mr. Chan left his building the following evening with that knapsack.
[44] On April 8th, Mr. Pang left the apartment carrying a shoulder bag.
[45] On April 11th, Mr. Chan returned to his unit with a gift bag. The following day, he left his apartment with the same gift bag, went to the underground parking lot and returned to his unit without the bag.
[46] On April 12th, Mr. Chan, Mr. Sethi and Mr. Suri arrived at the condo building in the same vehicle. Mr. Lao arrived in a different vehicle. They all took the elevator to the 12th floor together. On the way up, Mr. Lao and Mr. Sethi were looking into a green shopping bag. He and Mr. Sethi looked at the video camera and stopped looking into the bag. At 2:50 a.m. Mr. Suri, Mr. Sethi and Mr. Lao, who was carrying the same bag, left the unit.
[47] On April 14th and 19th, Mr. Sethi and Mr. Thakur were at the condo at the same time.
Search Warrant on Mr. Chan’s Apartment on December 18th, 2009
[48] The police executed a general warrant on Mr. Chan’s apartment on December 18th, 2009. They believe he was in British Columbia at that time. The police observed that the apartment was lived in (as opposed to being an unoccupied stash house). In the master bedroom they located a small amount of MDMA and ephedrine, a scale, baggies, knives, gloves, a baggie containing 10 ecstasy tablets, a money counter and a drug testing kit. Mr. Chan’s identification and a phone bill in his name were also found.
Arrest of Mr. Chan on December 26th, 2009
[49] Mr. Chan was arrested by York Regional Police for impaired driving. He was with Mr. Suri and another man at the time. Mr. Chan advised the police that he lived in British Columbia and only visited Ontario. He had 3 cellular phones and a portion of a phone bill dated November 5th with handwritten notes on it. The affiant reviewed the notes on the bill, and as a result of his experience as a drug investigator formed the opinion that it was a debt list for kilogram amounts of cocaine.
Undercover Cocaine Purchases from Quan Lao
[50] The affiant learned from another York Region police officer that Mr. Lao was the subject of an unrelated drug investigation which began after information was received from a confidential source. An undercover officer introduced himself to Mr. Lao at the probation office and portrayed himself as a low level dealer looking to learn about the drug trade. On April 21st the officer met up with Mr. Lao and had a drug related conversation during which Mr. Lao held himself out to be a significant level drug trafficker, involved in the sale of cocaine and marihuana. He offered to sell the officer ¼ kg of cocaine for $11 000 during this meeting and described the cocaine as high quality. The officer said that he was not able to buy that volume so the 2 men agreed that Mr. Lao would sell him ¼ pound of lower quality cocaine for $4000. Arrangements were made to meeting the following day to complete the deal.
[51] On April 22nd, the officer met Mr. Lao, while under observations by a surveillance team. Mr. Loa originally provided him with 1.5 ounces of cocaine rather than the agreed upon 4 ounces. Mr. Lao told the officer that if he wanted the other 2.5 ounces he would have to follow him downtown. The officer did this, and remained outside while Mr. Lao went into a house. When the officer asked Mr. Lao what took him so long in the house, Mr. Lao explained that he had cut the extra 2.5 ounces directly off a kilogram and had to weigh it.
[52] The affiant stated that the police intended to use the undercover officer to continue to purchase cocaine from Mr. Lao and also to introduce a plan to purchase ephedrine. The affiant believed this would cause Mr. Lao to have conversations with other Principal Known Persons to facilitate the undercover officer’s request.
Project E-Paragon
[53] In 2006 and 2007, police in British Columbia conducted a multi-national investigation into the importation of cocaine from the United States into Canada. There were several judicial authorizations granted to intercept private communications. Mr. Chan was the target of at least some of those authorizations and his communications were intercepted. In February of 2007 a transport truck was followed from the U.S. into Windsor, Ontario. When it was searched it was found to contain 147 kilograms of cocaine, 25 of which were for Mr. Chan. Intercepted communications revealed that Mr. Chan was involved with others in organizing the 25 kilogram cocaine deal. The affiant spoke directly with a police officer from Vancouver who was involved in this investigation, reviewed police records documents in relation to the case and was aware that as of March 30th, 2010 there was an unendorsed warrant for Mr. Chan’s arrest in British Columbia.
Background Information About the Targets
[54] The affiant disclosed several police occurrences dating back to 2006 relating to Mr. Sethi. I note at the outset that Mr. Sethi does not have a criminal record. While some of the background information does not appear to be relevant to the drug investigation, this fact would have been obvious to the authorizing judge. Two of the occurrences involve shootings and while that may raise suspicion about Mr. Sethi’s involvement with the criminal element, there is no reliable basis upon which to conclude that they were drug related, or in fact related to any criminal activity on the part of Mr. Sethi. This too would have been clear to the authorizing judge. Two of the occurrences (one from 2008 and one from 2006) make reference to Mr. Sethi being involved in drug trafficking. However, no charges were laid in relation to one, and the charges that were laid with respect to the second were withdrawn. This was fully disclosed in the affidavit. The authorizing judge would not have been misled by the inclusion of this background material. In conducting my review of the sufficiency of the grounds, I place no weight on this information.
[55] Mr. Suri does have a criminal record as a result of his arrest in a residence that contained a large number of marihuana plants, some cocaine, some ecstasy, a replica handgun, ammunition and a large amount of cash.
[56] The background information in relation to Mr. Chan consisted primarily of the E-Paragon investigation and Mr. Chan’s arrest for impaired driving in December of 2009. There is nothing in the affidavit to suggest that Mr. Chan has a criminal record or has been involved in the drug trade other than as alleged in E-Paragon.
[57] There was background information provided in relation to other Principal Known Persons and Other Known Persons but none of it was relevant in terms of the affiant’s grounds.
[58] The Applicant took the position that background information about the targets, particularly Mr. Sethi, was not relevant and ought not to have been included in the affidavit. As indicated, I am not relying on the background information about Mr. Sethi in assessing the sufficiency of the affiant’s grounds. However, the history of Mr. Chan’s involvement with importing cocaine is relevant. The Court in Debot dealt with the argument that a person’s reputation should not be used to buttress otherwise insufficient grounds to search. Justice Wilson could not accept the proposition that the past activities of a suspect are irrelevant, provided they relate to the investigation at hand (Debot at paragraphs 57 and 58). The same issue was considered by the British Columbia Court of Appeal in Della Penna. The Court found that the inclusion of information about prior criminal activity was useful in assessing the credibility of the affiant’s beliefs as disclosed in the affidavit (Della Penna at paragraph 37).
[59] In this case, the fact that Mr. Chan was involved in importing cocaine at a high level in 2007 and that evidence about this conduct was obtained through the use of intercepts is highly relevant to the affiant’s grounds to believe that an authorization would provide evidence of similar activity in 2010.
Dialled Number Recorders
[60] Warrants were granted to record the numbers dialled by phones used by Mr. Chan, Mr. Sethi, Mr. Pang and Mr. Noorbhai between mid December of 2009 and mid February of 2010. It was only Mr. Sethi’s residential phone number that was monitored during this time period. His residential phone was in contact with one phone number associated to Mr. Chan 69 times in this 60 day period. Additional number recorder warrants were granted for the period between mid February and mid April of 2010. This time, Mr. Sethi’s cellular phone was monitored. That phone contacted Mr. Suri’s cellular phone 207 times, Mr. Thakur’s phone 71 times, Mr. Lao’s phone 37 times and Mr. Chan’s cellular phone 128 times in 60 days. Mr. Suri used his cellular phone to contact Mr. Sethi’s cellular phone a further 196 times, Mr. Lao 190 times and Mr. Thakur 208 times. Mr. Chan’s cellular phone was used to dial Mr. Sethi’s cellular phone 164 times. Mr. Chan did not contact any of the other targets of the warrants, so it would appear that Mr. Sethi was the common contact for Mr. Suri and Mr. Chan. A further set of warrants was granted for the time period between mid April and mid June of 2010. The affiant had approximately 30 days of information from these warrants at the time he swore the affidavit in support of his Part VI application. These results are consistent with the earlier patterns, showing Mr. Sethi to be in regular phone contact with Mr. Suri, Mr. Chan, Mr. Thakur and Mr. Lao. Again, Mr. Chan only made direct contact with Mr. Sethi’s cellular phone.
[61] Based on the results of the number recorder warrants, it is apparent that Mr. Sethi was in very regular phone contact with Mr. Chan, Mr. Lao and Mr. Suri. The amount of contact in the 5 months leading up to the wiretap application supports the belief that Mr. Sethi had close relationships with these people and would continue to have frequent phone contact with them during the period of the authorization.
Summary of What the Police Knew
[62] The following conclusions can be drawn from the reliable information that the affiant had at the time he swore his affidavit:
Mr. Sethi had a close relationship and was in very frequent phone contact with Mr. Chan, Mr. Suri, Mr. Thakur and Mr. Lao.
Mr. Chan was involved in the importation of cocaine from the U.S. in February of 2007 and evidence about this conduct was obtained through the use of intercepts.
Based on the information provided by CS1, Mr. Chan was involved in the importation of cocaine from the U.S. in September of 2009. The information referred to shipments, which suggests it was an ongoing enterprise.
Mr. Chan had a small amount of drugs (MDMA, ephedrine and ecstasy) and drug paraphernalia in his condo unit on December 18th, 2009.
Mr. Chan had a drug debt list in his possession, consistent with kilo amounts of cocaine, on December 26th, 2009.
On February 17th, 2010 Mr. Tang had drugs and cash at the restaurant that Mr. Sethi and Mr. Suri had visited 3 weeks earlier.
There was unusual activity, as disclosed by the video surveillance cameras, at Mr. Chan’s condo building. Specifically, numerous people came and went with bags or packages. Mr. Sethi and Mr. Suri were frequent visitors to Mr. Chan’s building and sometimes carried bags or packages into and out of the building. This activity continued until April of 2010.
Mr. Lao was a cocaine dealer who was actively involved in the drug trade in late April of 2010. He had access to kilo amounts of cocaine. He was at Mr. Chan’s condo with Mr. Sethi and Mr. Suri on April 12th, 2010.
Conclusion on the Issue of Reasonable and Probable Grounds
[63] The application to intercept the private communications in issue specifies 7 offences which the affiant alleges the intercepts will afford evidence of. With respect to the offences of trafficking in methamphetamine, possession of methamphetamine for the purpose of trafficking and producing methamphetamine, I do not find that there were reasonable and probable grounds to believe that either Mr. Sethi or Mr. Thakur had committed or were committing those offences. The information from CS2 and the fact that a small amount of ephedrine was found in Mr. Chan’s apartment during the search on December 18th, 2009 raises suspicion in this regard, but it falls short of establishing reasonable and probable grounds.
[64] The question therefore becomes whether this finding invalidates the authorization as it relates to the remaining offences. I am satisfied that there was more than sufficient information to provide the affiant with reasonable and probable grounds to believe that Mr. Chan had been and was committing the offences of importing cocaine, possession of cocaine for the purpose of trafficking, trafficking cocaine and conspiracy. Mr. Chan had a history of engaging in this activity at a high level in 2007, information from CS1 indicated he was doing so again in September of 2009, he had drugs and drug paraphernalia in his home on December 18th, 2009 and was found in possession of a debt list consistent with high level cocaine dealing on December 26th, 2009. In addition, there was unusual activity in and out of his condo unit as documented by the video surveillance conducted between November of 2009 and April of 2010. Finally, Mr. Lao, who was actively involved in trafficking cocaine in late April of 2010 was at Mr. Chan’s condo with Mr. Sethi earlier that month.
[65] There is no question that Mr. Lao, who was also a named target of the authorization was trafficking in cocaine in April of 2010 and that there were grounds to believe that he would continue to do so. However, the drug activity of Mr. Lao was not the focus of the investigation that led to the wiretap authorization. It came to the affiant’s attention almost coincidentally and was the subject of a separate ongoing investigation that involved an undercover officer. While it was appropriate for the affiant to name Mr. Lao as a Principal Known Person, I do not rely on Mr. Lao’s drug activity as providing a separate basis upon which the authorization could have issued. To do so would be to disregard the intent of the investigation and the entire focus of the affidavit in support of the authorization.
[66] Justice Dambrot considered a very similar issue to the one I face in Riley. In that case, there were ample grounds to support the authorizations in question in relation to a homicide investigation. However, the applications included weapons trafficking offences and (in relation to the second authorization) robbery. In conducting a review of the authorizations, Justice Dambrot concluded there was no basis upon which the authorizing judges could have been satisfied in relation to investigative necessity for the weapons and robbery offences. He then went on to consider the impact this finding had on the authorizations as they related to the homicide. The Applicant argued that the erroneous inclusion of the weapons and robbery offences vitiated the authorizations. Justice Dambrot disagreed and made reference to the standard of review set out in Araujo, specifically whether there was any basis for the decision of the authorizing judge. In applying this test, Dambrot J. found that there was a basis upon which to authorize the interception of private communications in relation to the homicide and as a result, they were valid (Riley at paragraphs 196, 197, 200 and 201).
[67] That did not end the matter as it had to be determined whether any of the named targets were included solely for the purposes of investigating the offences that had been improperly included. In considering this issue, Justice Dambrot stated that the threshold for naming someone in an authorization is a low one. It is not necessary for the affiant to have reasonable grounds to believe that a named person was involved in the offences underlying the authorization. It is sufficient if there are grounds to believe that intercepting a person’s private communications may assist in the investigation of the offences (Riley at paragraph 214. See also R v. Mahal 2012 ONCA 673, [2012] O.J. No. 4672 (Ont. C.A.) at paragraph 71).
[68] Applying those legal principles to the affidavit of Detective Ibbott, as I have already found, there were more than sufficient grounds to support the interception of private communications in relation to the cocaine related offences and the conspiracy. With respect to the inclusion of Mr. Sethi as a known person, the question is whether there were adequate grounds to believe that the interception of his private communications might assist the investigation into those offences. In my view, there were. He was a regular visitor to Mr. Chan’s apartment, sometimes carrying bags. He was at Mr. Chan’s apartment in April of 2010 with Mr. Lao who was actively involved in trafficking cocaine. Furthermore, information obtained as a result of Number Recorder warrants that spanned 5 months established that Mr. Sethi was in frequent phone contact with Mr. Chan, Mr. Suri, Mr. Thakur and Mr. Lao. In these circumstances, it was reasonable to believe that Mr. Sethi would have relevant telephone conversations with Mr. Chan and others and that these conversations might assist the investigation into the named offences that were properly included in the authorization.
Investigative Necessity
[69] The Applicant asserts that the police investigation leading up to the granting of the authorization was deficient and that the Part VI application was based on efficacy rather than on need. The law with respect to the requirement of investigative necessity is clearly set out in Araujo 2000 SCC 65, [2000] S.C.J. No. 65. There must be, practically speaking, no other reasonable alternative method of investigation. The police cannot resort to Part VI authorizations because that would be the most effective or convenient manner of investigation. At the same time, the police are not obliged to avail themselves of every possible investigative technique prior to applying for a Part VI authorization (R v. Pham et al 2009 CanLII 60792 (Ont. S.C.J.) at paragraph 89(7) and Riley at paragraph 146). Furthermore, the requirement of investigative necessity applies to the investigation as a whole and not with respect to each named person (Mahal at paragraph 42).
[70] Applying those principles to the authorization before me, I am satisfied that Detective Ibbott set out sufficient grounds in his affidavit to satisfy the requirements of Section 186(1)(b). The Applicant alleges that the police could have and should have done far more physical surveillance. He also points out the fact that while tracking warrants were granted in relation to several people, a device was only installed on one vehicle driven by Mr. Suri. Perhaps it is always the case that more could have been done. But the issue is whether that would have accomplished the investigative goals. The police in this case were dealing with a fairly sophisticated operation that was alleged to be importing cocaine from the U.S. and distributing it in the GTA. They had no way of knowing when shipments would be arriving and from where specifically. Perhaps if they had been able to put Mr. Chan under 24 hour surveillance for an unlimited period of time, they would have gotten lucky and been able to follow him to pick up a shipment of cocaine. But such a possibility is purely speculative. The police did conduct some physical surveillance, with no meaningful results. In addition, they had a detailed glimpse into Mr. Chan’s comings and goings and those of his visitors through the video surveillance. They executed one general warrant and learned that the condo at 9015 Leslie Street was not being used to store a large quantity of drugs. The affiant explained in his affidavit why he did not believe alternate methods of investigation would be sufficient to accomplish his investigative goal. In Araujo, the Court recognized the practical difficulties of investigating high level drug trafficking enterprises. As result, the information in the affidavit provided a proper basis upon which the authorizing judge could have been satisfied that the requirements of Section 186(1)(b) were met.
Conclusion
[71] For the reasons detailed above, I find that there was a basis upon which the authorizing judge could have granted the authorization. Mr. Sethi’s application to exclude evidence obtained as a result of the interception of private communications pursuant to the authorization is therefore dismissed.
Justice Bird
Released: January 30, 2015 (orally)