ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Abdullah, 2015 ONSC 828
COURT FILE NO.: 10996
DATE: 02/24/2015
B E T W E E N:
HER MAJESTY THE QUEEN
T. Zuber, for the Crown
Respondent
- and -
SAYEED ABDULLAH
G. Snow, for Mr. Abdullah
Applicant
HEARD: January 12 and 14, 2015
Grace J.
RULING
[1] Three issues are the subject of this ruling; the voluntariness of a videotaped statement provided by Mr. Abdullah to Detective Constable Pavoni of the London Police Service (“LPS”) on February 13, 2011; the defendant’s request for leave to cross-examine Constable Kelly of the Royal Canadian Mounted Police on an affidavit sworn April 17, 2012 in support of an application to, among other things, intercept communications and an application to exclude evidence under s. 24(2) of the Charter of Rights and Freedoms (“Charter”) on the grounds that the interception of a private communication in which Mr. Abdullah participated violated s. 8 thereof. I will deal with each issue in turn.
A. The Voluntariness Issue
[2] Evidence was given by eight witnesses. The Crown called six members of the LPS: D-C Pavoni, Joshua Silcox, Robert Kerr, Gordon Besley, Husnain Mahmood and Mike Orendorff. A seventh – Trevor Telfer - was physically unable to testify. On consent, the transcript of his testimony from the first trial of Mr. Abdullah was filed.
[3] Mr. Abdullah also testified.
[4] D-C Pavoni is a member of the Guns and Drugs Section of the LPS. He had been in that section for approximately a month when the events of February 12th and 13th, 2011 occurred.
[5] He testified that based on information received from a confidential informant, the LPS believed that Mr. Abdullah was in possession of a firearm. At the time of the events I am about to describe, the LPS was in the process of obtaining and executing a warrant permitting the search of 1106-675 Windermere Road, London, Ontario. Mr. Abdullah was known to occupy that unit.
[6] D-C Pavoni testified that Mr. Abdullah drove a 2005 black Hummer bearing licence plate BFRB 067. During the early evening hours of February 12, 2011, the vehicle was seen outside a residence at 1356 Aspen Ridge Crescent, London, Ontario.
[7] D-C Pavoni said he followed the vehicle into the parking lot of a Mac’s Milk convenience store at the corner of Kipps Lane and Arbour Glen. D-C Pavoni testified that upon entering the store he was able to identify Mr. Abdullah.
[8] Soon afterward, Sergeant Telfer stopped the Hummer in front of 756 Kipps Lane, London.
[9] Within a matter of minutes, several other officers arrived at the scene. They included Emergency Response Team members Silcox and Kerr and Canine Officer Besley. The latter was accompanied by police service dog “Axe”. Each officer described his role in the subsequent events.
[10] Emergency lights were activated. Weapons were drawn. Instructions were given to Mr. Abdullah. He complied, exited the vehicle and backed his way to P.C. Silcox where he was handcuffed.
[11] P.C Silcox testified that at 8:55 p.m. Mr. Abdullah was told that he was under arrest as a result of a drug investigation. He said Mr. Abdullah was cautioned and advised of his right to counsel.
[12] P.C. Silcox said that at 9 p.m., he learned that the investigation related to weapons, rather than drugs. He maintained that he clarified the reason for detention and re-arrested Mr. Abdullah. He said that once again Mr. Abdullah was advised of his rights to silence and counsel.
[13] A request was made for a uniformed officer to transport Mr. Abdullah to the main LPS station at 601 Dundas Street.
[14] Constable Mahmood arrived for that purpose at approximately 9:15 p.m. He said that he replaced the arresting officer’s handcuffs with his own and took possession of Mr. Abdullah`s cell phone and wallet.
[15] Mahmood testified that he advised Mr. Abdullah of the reason for his detention (a weapons investigation) and of his rights to silence and counsel.
[16] He reported speaking to D-C Pavoni on his cell phone en route. P-C Mahmood said he was told to arrest the defendant for unauthorized possession of a weapon and did so. P-C Mahmood testified that he also read Mr. Abdullah his rights and that Mr. Abdullah acknowledged understanding them.
[17] P-C Mahmood said that there was some additional conversation during the fifteen minute ride. P-C Mahmood said he may have told Mr. Abdullah that he knew an older and younger sibling.
[18] P-C Mahmood described the booking process that followed arrival at the LPS station. Afterward, Mr. Abdullah was strip searched by P-C Mahmood and P-C Orendorff. While disrobing, a cigarette fell to the floor.
[19] P-C Mahmood inspected the cigarette, concluded it contained marijuana and rearrested Mr. Abdullah. He said that once again the defendant was read his rights to silence and counsel. He said that on this occasion Mr. Abdullah was respectful but unresponsive. Mr. Abdullah was then transported to the cell area.
[20] I pause here to mention some of Mr. Abdullah`s evidence. He testified about his activities on February 12, 2011 leading up to his arrest. He said he spent a leisurely day with friends and family. He said he was en route to pick up his girlfriend from an apartment at 756 Kipps Lane before heading to Windsor for a brief holiday when he was suddenly and unexpectedly stopped by the police.
[21] Mr. Abdullah said that he was shocked by that fact and by how the police responded.
[22] His version of what transpired from the time he was stopped until handcuffed by P-C Silcox was not markedly different from other witnesses. However, Mr. Abdullah denied being told of any reason for his detention or of his rights by P-C Silcox on any, let alone, two occasions.
[23] Mr. Abdullah`s version of events differed from P-C Mahmood as well. Mr. Abdullah said that no reason was given for his arrest and that he was not told of his rights. In fact, Mr. Abdullah said that he was told that he would have to wait to speak with detectives awaiting his arrival when he asked why he had been arrested.
[24] Mr. Abdullah said that he remembered P-C Mahmood advising him to adopt a better lifestyle.
[25] The defendant said that it was not until after he was placed in a cell that he was given a reason for his arrest.
[26] He said D-C Pavoni arrived and told him that a handgun had been found in Mr. Abdullah’s apartment. Mr. Abdullah said that he was shocked to hear that. He said that he rented the apartment so that he could spend time with his girlfriend alone and away from his parent`s home. He testified that he only used the apartment periodically and that several others had keys to the unit.
[27] The defendant maintained that his conversation with D-C Pavoni lasted approximately 90 seconds.
[28] He said that during this conversation he provided the name (Marc Herman) and phone number of his Toronto based lawyer. He testified that D-C Pavoni advised that Mr. Abdullah`s younger brother Bahzad and one of Bahzad’s friends had arrived at the apartment while the police were on-site and been arrested.
[29] He alleged that D-C Pavoni told him that the police were looking forward to a family reunion because they were also searching for an older sibling.
[30] Mr. Abdullah said that D-C Pavoni offered to release Bahzad provided Mr. Abdullah confessed to owning the handgun the police had found. He said that D-C Pavoni then left the cell area and later returned.
[31] The defendant said that on his return D-C Pavoni told him that calls made to Mr. Herman were unanswered. Mr. Abdullah said that because of his concern for his younger brother’s welfare, he decided to accept D-C Pavoni’s offer to release Bahzad in return for a false confession.
[32] D-C Pavoni told an entirely different version of events. He said that he thought Mr. Abdullah had already exercised his right to counsel when he arrived at Mr. Abdullah’s cell.
[33] Upon learning that Mr. Abdullah had not done so, he obtained the name – but not the phone number – of the defendant’s lawyer. He said that unsuccessful efforts were made to find the lawyer’s number. D-C Pavoni said that Mr. Herman was not included in the list of lawyers the LPS had. He said the listing set forth the names of lawyers practicing criminal law. He said he later learned that Mr. Herman is an immigration lawyer.
[34] D-C Pavoni said that Mr. Abdullah participated in the interview without inducement or threat. He denied mentioning the arrest of Bahzad or his friend beforehand. He acknowledged that Mr. Abdullah first raised the topic during the interview but said he could not speculate as to how the news came to Mr. Abdullah’s attention. However, he noted that the two brothers were in the same cell area.
[35] Mr. Abdullah testified that during the interview and in order to secure his brother’s release, he admitted owning the gun the police had found. He said that he embellished the story to make it seem more convincing. However, like the admission relating to the firearm, the embellishments were untrue.
[36] He said that at the conclusion of the interview, D-C Pavoni told him additional information was required and reneged on the arrangement. Mr. Abdullah said that he no longer trusted D-C Pavoni and declined to say anything more. I turn to the applicable principles.
[37] The law is clear. The Crown must prove the voluntariness of Mr. Abdullah`s statement beyond a reasonable doubt: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 at para. 71.
[38] Inducements offered to an accused or to someone with whom the accused maintains a close relationship may yield an untruthful confession; R. v. Jackson 1977 287 (BC CA), [1977], 34 C.C.C. (2d) 35 (B.C.C.A.) at p. 38.
[39] The test is whether the inducement, either on its own or when combined with other circumstances, is of sufficient significance to raise a “reasonable doubt about whether the will of the subject has been overborne”: R. v. Oickle, supra, at para. 57.
[40] I am prepared to accept that Mr. Abdullah’s relationship with his brother was sufficiently close that an unreliable statement could have been procured if Bahzad had been the subject of a promise or a threat by D-C Pavoni or another officer. I have no reason to doubt that the two brothers were attached or that the concern expressed by Mr. Abdullah periodically during the interview for his brother was genuine.
[41] However, I do not believe and do not accept the evidence of Mr. Abdullah that his statement was a product of an inducement. Nor was a reasonable doubt created by his testimony concerning the voluntariness issue. In fact, based on all of the evidence I do accept, I am satisfied beyond a reasonable doubt that Mr. Abdullah’s February 13, 2011 statement was a voluntary one: R. v. W.D., 1994 76 (SCC), [1994] 3 S.C.R. 521 at para. 23.
[42] I have reached that conclusion despite readily acknowledging the accuracy of two points made by the defence. First, it is clear Mr. Abdullah learned of the arrest of his younger brother before the interview. However, that does not mean that D-C Pavoni was the source.
[43] Second, the defence is correct that during the interview Mr. Adbdullah did not disclose the details of the handgun (for example, the make, model, colour or calibre). However, in my view, that fact is of no significance. That issue was not addressed by either D-C Pavoni or by Mr. Abdullah.
[44] My conclusion is not a product of the fact that Mr. Abdullah’s version of events is at odds with the evidence of members of the LPS. The evidence of a police officer is to be treated and assessed in the same fashion as any other witness: R. v. Favorite, [2008] O.J. No. 1184 at para. 11; R. v. Graat, 1982 33 (SCC), [1982] 2 S.C.R. 819.
[45] Nor is my assessment of credibility and reliability influenced by the fact that police witnesses are, by virtue of their education, training and experience, equipped to give testimony more easily than those who are not regular visitors to the courtroom.
[46] I am also not influenced by the fact that Mr. Abdullah was outnumbered. The evidence of many is not to be preferred to the evidence of one. The issue is the quality, not quantity, of the evidence.
[47] I turn to the matters that did play a role in my decision.
[48] An initial, obvious and significant concern arises from Mr. Abdullah’s testimony that he lied about more than the ownership of the handgun during his interview with D-C Pavoni.
[49] Mr. Abdullah said that he also lied when he alleged people had tried to rob him (p. 9), when he said that his car was “sprayed by ….. bullets” (although it was true it had been vandalized) (p. 9) and when he talked about helping the police to get guns off the streets (p. 11).
[50] He alleged those things were said to make his confession more believable: to provide reasons why he would have acquired a handgun.
[51] Yet, Mr. Abdullah acknowledged that he only had brief conversations with D-C Pavoni before the interview and had only been asked to admit to the ownership and control of the handgun.
[52] The suggestion that Mr. Abdullah created an elaborate story to make his own false confession sound more convincing is incredible and not worthy of belief.
[53] Most importantly, the version of events told by Mr. Abdullah in court is at odds with the interview both in duration and content.
[54] A false confession would not have taken long to tell.
[55] One might have expected a staged confession to have included details such as the handgun’s make, model, colour or other descriptors as part of a question or answer.
[56] There is not a single indication in the entire interview that its purpose was to extract any particular answer on any subject, let alone relating to the handgun.
[57] The length and content of the discussion concerning counsel for Mr. Abdullah is at odds with the version of events he relayed in court.
[58] The initial portion of the exchange was as follows:
Q. Do you wanna call a lawyer?
A. Yes I do but I can’t get a hold of him. You already know that.
Q. Yeah. Um, you’ve given me the name of Marc Herman.
A. Tomorrow’s Sunday…..
Q. Yeah.
A. …..I’ll be released so.
Q. So here’s the deal, we – we tried to get a hold of him. We’ve [sic] Canada 4-1-1. We’ve tried the Canadian law the – inaudible – you know the Canadian law website um, our local records. We don’t – your phone is dead.
A. Mmhmm.
Q. Um, it’s Saturday night at midnight…
A. Mmhmm
Q. …so it’s up to you whether or not you’d like to call the 1-800 number or you [sic] can put you in contact with a local London lawyer.
A. Local London – Bob Sheppard. I’ll go – he’s my friend.
Q. Okay.
A. Rob Sheppard, you know him?
Q. Ah…
A. He’s a London lawyer.
Q. …yup we can try and get a hold of him.
A. Thank you.
Q. Okay.
A. And….
Q. Did – it’s up to you whether you wanna talk to us before that.
A. It’s up to – it’s – the officers have been telling me that you guys wanted to talk to me.
Q. Yup. No, no but it’s your right to speak with a lawyer.
A. Mmhmm.
[59] Two things are apparent from this excerpt. First, Mr. Abdullah indicated that he was unable to contact Mr. Herman because he had been arrested on a weekend. Second, Detective Pavoni referenced the unsuccessful effort made by the police to find Mr. Herman. From the perspective of the LPS, that was the problem.
[60] If Mr. Abdullah had given D-C Pavoni the name and phone number of Mr. Herman, he surely would have asked why the police were searching Canada 411 and the Canada law website. There would have been no reason for D-C Pavoni to access those sources if the telephone number had already been communicated.
[61] Further, if an agreement had been reached, a lengthy discussion concerning an alternative to Mr. Herman would have been unnecessary. However, Mr. Abdullah identified a local lawyer, Bob Sheppard, by name. Initially, Mr. Abdullah seemed to want to speak to him.
[62] Mr. Abdullah changed his mind as evidenced by the following exchange:
Q. Do you wanna speak with a lawyer before you talk to us is what I’m asking you.
A. I’ve already – even if I spoke to a lawyer they’ll just tell me not to say nothing to you guys you know.
Q. Yeah.
A. Just I already know that fuck…
Q. Fair enough.
A. …their job is, you know.
Q. It’s up to you though.
A. Yeah, but what is there to say like you know like what – what do we got to talk about? You already – you guys got me charged.
Q. Yeah, I’m just gonna explain…
A. Mmhmm.
Q. …to you everything.
A. Mmhmm.
Q So we can move on from here.
A. . Yeah, go ahead.
Q. Do you wanna…
A. Yeah, move on.
Q. …do you wanna call a lawyer right now?
A. No it’s 12 at night. Not – not – a lawyer can’t have nothing for me at 12 at night.
Q. Okay, if you change your mind at any time…
A. I’ll call him later.
Q. …let me know…
A. Mmhmm.
Q. …and we can stop and get you in touch with one, okay.
A. For sure, man.
[63] From the very beginning the interview is the exact opposite of the orchestrated event Mr. Abdullah described.
[64] D-C Pavoni then tried to explain to Mr. Abdullah what had been found in the apartment, the Hummer and on his person and the charges that he faced. Mr. Abdullah continually interjected resulting in this exchange:
Q. Wait. Wait. I know you’re eager to talk. So that’s what you’re being charged with. Do you wish to say anything in answer to the charge? You’re not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence.
A. All right.
Q. Do you understand?
A. Yes.
[65] Seconds later the interview turned to Bahzad. According to Mr. Abdullah’s oral testimony D-C Pavoni had already told him why Bahzad had been arrested and that the LPS had no interest in him. However, that explanation is inconsistent with what transpired during the interview. In fact, Mr. Abdullah knew very little about Bahzad and tried to find out more. The exchange follows.
Q. No. Yeah.
A. So my little brother why is he for?
Q. He ah – well he’s your brother.
A. Mmhmm.
Q. And he showed up…
A. Mmhmm.
Q. …while we were there…
A. Mmhmm.
Q. …with keys to the apartment.
A. Mmhmm.
Q. Which shows that he obviously knows you.
A. Mmhmm.
Q. Has access to the apartment.
A. Well because…
Q. Knowledge of the apartment.
A. …(inaudible) – have to explain that to you.
Q. He’s able to control access in and out.
A. Well because he’s my little brother, you know. Say for a day like this something happens to me in case I get – I get killed on the roads for example, I – I die from eating poison food, you know who’s gonna – I need somebody in my family to know where I’m at, you know.
Q. Yeah.
A. So maybe he’s the one to check on me to see if I’m okay or not. He didn’t know what the fuck was going on….
Q. Mmhmm.
A. So maybe he’s the one to check on me see if I’m okay or not. He didn’t know what the fuck was going on…
Q. Mmhmm.
A. …because you guys already got me, my phone wasn’t being answered.
Q. Right.
A. So who else is going – I don’t let my mom know. I don’t let my dad know so – (inaudible) – you now.
Q. Yeah. I’m not – I’m not saying that ah, he’s arrested because he has keys to your apartment. He’s arrested because he has keys to your apartment where there’s firearm, ammunition and drugs.
A. But – I understand. I understand.
Q. And he has access to it and the ability to control that access, right. He doesn’t need to call and say hey.
A. Mmhmm.
Q. He’s able to just walk in right?
A. Mmhmm.
Q. You weren’t even there.
A. So he walks right in and you guys arrested him there?
Q. Yup.
A. Poor kid eh? Was he by himself or with his friend?
[66] Mr. Abdullah has become the interviewer, not the interviewee.
[67] His question concerning Bahzad’s friend is surprising given Mr. Abdullah’s oral testimony. In court, Mr. Abdullah said that prior to the interview D-C Pavoni told him about Bahzad’s friend and that he had already been released. That is clearly inaccurate from the question posed and from the subsequent exchange:
Q. No he was with a friend.
A. They arrested him too? Holy Christ. Poor kids.
Q. He’s here too. Sebastian?
A. Mmhmm. I don’t even know him. He’s just friends supposedly. I don’t even know him. Younger than me.
Q. So that’s the deal.
A. So what – what can you – what – what can you do for me?
[68] In fact, Mr. Abdullah was searching for answers he did not already possess. Further, Mr. Abdullah’s final inquiry is telling. Mr. Abdullah’s concern for Bahzad and Sebastian was passing. His focus immediately shifted from others to himself. Without prompting, Mr. Abdullah told D-C Pavoni about a lawsuit he had commenced against the LPS, about the Hummer “being sprayed by…bullets” by “outsiders from Toronto” and about the prevalence of guns on the streets. That led to this:
Q. Yeah.
A. But I only have that for my – for – for – for my – and my – my family’s protection. Do you believe me on that?
Q. No, that’s why people carry guns, to protect themselves, yeah.
A. I don’t carry it. I didn’t carry it.
[69] Soon afterward Mr. Abdullah attempted to extricate himself from the situation that confronted him.
Q. Yeah.
A. So that’s – that’s just telling you right there. But um, I don’t know if you guys could help me – and I could help you guys somehow but it’s all up to you guys.
Q. Well….
A. I could help you guys big time, I can tell you that right now. I’m not saying I’ll help you today just put that out to you. I guarantee – (inaudible) – Pavoni I can get another 20 fucking guns off the streets.
Q. Well this really isn’t between me and you, right.
A. I know. I know, but I’m just telling you, you help me out, I’ll help you out, man.
[70] Realizing that his primary objective was not going to be realized, Mr. Abdullah returned to Bahzad.
Q. This is between me and you and the courts right, we’re being recorded and this is all – this is – I mean I’d love to help you out here, man, but you’re charged with something pretty serious.
A. I know – I know that, man. So what – why is my little brother charged, if I’m charged? It’s my – it’s my house – or my apartment, my ride. He shouldn’t be here. He just came to check up on me probably, poor kid.
Q. ‘Cause he’s got access to your gun.
A. He did not know – even know about that. He doesn’t know shit.
Q. How do you know?
A. He doesn’t – he doesn’t. He doesn’t know nothing about none of that. He don’t – I don’t tell him that. He’s too young.
[71] Mr. Abdullah’s defence of his younger brother continued until D-C Pavoni directed the conversation back to Mr. Abdullah. D-C Pavoni wondered why Mr. Abdullah did not carry the handgun if he was concerned that he was being targeted by persons from Toronto. In response, Mr. Abdullah expressed concern for the safety of citizens on the road and added “I care about other people. Just because there’s other dumb criminals like me out there…doesn’t mean I have to take some innocent life away”. Two answers later Mr. Abdullah said:
The only reason I had that Pavoni is God forbid something ever happened to one of my brothers or me, you know. Not that I would go pay revenge but – but just I know – I think you understand why.
[72] When asked where he had obtained the gun, Mr. Abdullah said “Toronto”.
[73] Mr. Abdullah then told D-C Pavoni that his job had involved delivering fruits and vegetables to the kitchen at the LPS headquarters.
Q. Oh yeah.
A. All to the kitchen upstairs. That’s fucked up. I used to bring fruits to you guys and now I’m in cells with you guys again.
Q. Mmhmm.
A. And now I’m gonna head to EMDC.
Q. Yeah.
A. So there’s no chance of bail for me, eh?
A. No, probably not, not for something like this. Um, anything else that you can think of that….
A. Nah, just – (inaudible).
Q. Yeah.
A. How’d you guys know I was there, if you don’t mind me asking?
Q. That you were where?
A. Windermere.
Q. Ah, there’s all kinds of info. We can’t talk about, right? All right.
A. So I’m here ‘til morning, oh God.
[74] The end of the interview appeared to be imminent. However, there was a knock at the door and D-C Pavoni left the room for approximately two minutes. The exchange that followed was captured in two pages of the transcript. On the final page Bahzad became the topic of the conversation one final time. That portion of the interview follows:
Q. What about your brother that we’ve got in here?
A. Pardon me? What about him?
Q. Would he hurt anybody?
A. Never. He’s a fucking good kid – he’s a good kid, I’m telling you as a man to man I think you should release him, man.
Q. Why?
A. He had nothing to do with nothing. He’s a lost kid. He doesn’t even know nothing. Probably thinking what the fuck am I in here for. He’s probably thinking what the fuck. He’s probably lost. He doesn’t know what’s going on.
Q. Oh I don’t know.
A. This is – I don’t know what he said to you guys but I’m telling you as a – as a man he doesn’t know what the fuck’s going on. He’s probably shocked. He’s probably what the fuck.
Q. Not his gun?
A. Mine. I’ll say it right not. He has nothing to do with nothing. He’s shocked. Him and his friend. I don’t even know who this kid is that’s with him. They’re probably both in fucking shock.
Q. Yeah.
A. Poor kids. They hate me probably.
Q. Um, I don’t think so. You good?
A. Yeah, I’m good, man.
[75] These follow up questions and answers were not part of a pre-made deal. They were spontaneous: questions posed by a police officer trying to determine where Bahzad fit into the puzzle. Mr. Abdullah had already admitted that he owned the handgun. He had already told D-C Pavoni where and why he had obtained it. The admission was repeated in the hope – not expectation - that something could be salvaged: the release of Bahzad and his friend. Those answers were not generated by a promise to release or a threat to charge Bahzad. They were voluntarily given.
B. Leave to Cross-Examine Constable Kelly
[76] In April, 2002, an application was made for a variety of orders including authorization to intercept communications. An affidavit of Constable Kelly of the Royal Canadian Mounted Police sworn April 17, 2012 was filed in support.
[77] The affidavit disclosed that since 2006 the LPS had been investigating Mr. Abdullah and brothers Bahzad, Sardar and Bewar in relation to trafficking of various controlled substances including cocaine.
[78] The authorization was granted by Hockin J. on April 19, 2012. It authorized the interception of various kinds of communications involving two “principal known persons”, twenty “other known persons” and potentially other unnamed persons if observed or intercepted at places or over devices the authorization identified.
[79] Bahzad was named as a “principal known person”. Mr. Abdullah was one of twenty “other known persons” the authorization listed. The police were authorized to intercept communications when made over, among other devices, Bahzad’s mobile telephone.
[80] On April 26, 2012, police intercepted a communication made using that device. Mr Abdullah is alleged to have been one of the participants. Mr. Abdullah seeks its exclusion from his forthcoming second trial.
[81] Mr. Abdullah submitted that he was, in fact, a primary target of the investigation and sought to cross-examine Constable Kelly with respect to “the true nature and standing of [Mr. Abdullah] in the…investigation, and what standard ought to have been applied to him in authorizing the intercept of his private communications.”[^1]
[82] I agree with the Crown that R. v. Mahal, 2012 ONCA 673 at paras. 51 – 90 is dispositive of the application. The statutory scheme differentiates between persons who are “known” and “unknown”. As Watt J.A. wrote at para. 82:
…the person should be described as a “known”, when the investigators know of the existence of the person and have reasonable and probable grounds to believe that intercepting that person’s private communications may assist the investigation for which authorized electronic surveillance is sought…
[83] However, the Criminal Code does not create categories of known persons. That led Watt J. A. to this conclusion at para. 90:
I am satisfied that neither the provisions of Part VI nor the controlling jurisprudence support the creation of two classes of “known” persons in authorizations. The test for including any named person in the supportive affidavit and consequent authorization is a threshold described in Chesson.[^2] The distinction between “Principal Known Persons” and “Other Known Persons” may serve other useful purposes in an authorization, but neither the statute nor controlling jurisprudence requires or furnishes a legal basis for such a distinction.
[84] The applicant should not be permitted to cross-examine the affiant on a topic that is without legal significance. Further, the interception of the communication occurred because of the use of a device associated with Bahzad and specifically identified in the authorization. Interception of communications occurring over that device was authorized whether involving known or unknown persons. For those reasons, leave to cross-examine Constable Kelly on his affidavit was refused.
C. Section 8 Charter Application
[85] Mr. Abdullah argued that the April 26, 2012 interception violated the right conferred by s. 8 of the Charter to be secure against unreasonable search or seizure.
[86] As noted, the interception occurred pursuant to an authorization granted by Hockin J. on April 19, 2012 in accordance with, among others, ss. 185 and 186 of the Criminal Code.
[87] Counsel for Mr. Abdullah conceded that in those circumstances, the defendant bears the onus of establishing a breach of his Charter protected right.[^3]
[88] I reiterate that the conversation occurred using a cell phone specifically identified in the authorization and used by Bahzad; one of two “principal known persons” it named. Mr. Snow acknowledged the fact Mr. Abdullah was using a borrowed cell phone made his s. 8 argument “problematic”. I agree.
[89] Further, counsel for Mr. Abdullah acknowledged that a reviewing judge should not interfere unless there was no basis for the authorization’s issuance: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 at para. 62; R. v. Campbell, 2010 ONCA 588 at para. 45 aff’d 2011 SCC 32.
[90] In my view, there was an ample evidentiary foundation for the issuance of an authorization that named Mr. Abdullah as a known person. The requirements of s. 185(1) (e) of the Criminal Code were met. The police were familiar with Mr. Abdullah. Constable Kelly set forth why he believed that Mr. Abdullah, who was then in custody, was part of a drug trafficking network. Interception of Mr. Abdullah’s communications was likely to assist in the ongoing investigation Constable Kelly described.
[91] A breach of s. 8 of the Charter has not been established.
[92] Even had I reached the opposite conclusion, I would not have excluded the evidence under s. 24(2) of the Charter. The parties agree that the relevant factors are the seriousness of the Charter-infringing state conduct; its impact on the Charter-protected interests of the accused and society’s interest in an adjudication on the merits.[^4]
[93] With respect to the first factor, the interception occurred pursuant to and in accordance with a judicial authorization. As noted, the communication that was intercepted occurred using a specifically identified device associated with Bahzad Abdullah. Admission of the evidence would not “undermine public confidence in the rule of law.”[^5]
[94] With respect to the second, while citizens have a legitimate expectation that their cell phone conversations will be private, Mr. Abdullah was using his brother’s cell phone. Mr. Abdullah could not have expected a higher level of privacy than that enjoyed by the owner of the cell phone he chose to use. Conversations occurring using Bahzad’s cell phone could be intercepted whether Bahzad was the user or not.[^6]
[95] With respect to the third factor, I agree with Mr. Abdullah’s counsel that the re-trial would occur even if the recording of the April 26, 2012 call was excluded. It occurred after the first trial was complete. However, while I have not heard the intercepted conversation, it appears to have been spontaneous, uncoerced and significant. It therefore appears to be reliable evidence. This factor is no more than a neutral one.
[96] Weighing all the circumstances, I would not have excluded the evidence even if a breach of s. 8 of the Charter had been established.
[97] For the reasons given, I have concluded that the statement provided by Mr. Abdullah on February 13, 2011 was voluntary. His applications under ss. 8 and 24(2) of the Charter are dismissed.
“Justice A. D. Grace”
Grace J.
Released: February 24, 2015
CITATION: R. v. Abdullah, 2015 ONSC 828
COURT FILE NO.: 10996
DATE: 02/24/2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
Sayeed Abdullah
RULING
GRACE J.
Released: February 24, 2015
[^1]: This excerpt is drawn from para. 27 of the applicant’s factum.
[^2]: 1988 54 (SCC), [1988] 2 S.C.R. 148
[^3]: This concession is found in para. 14 of Mr. Abdullah’s factum.
[^4]: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 71.
[^5]: Ibid. at para. 133.
[^6]: R. v. Nugent (2005), 2005 790 (ON CA), 193 C.C.C. (3d) 191 (Ont. C.A.) at para. 11.