Court File and Parties

COURT FILE NO.: 121/15 DATE: 2016/06/01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen T. Gilliam and N. Gilks, for the Crown Crown

- and -

Randy McGean, Isaac Lucas, and Lyle Gough Accused J. Stephenson, for Randy McGean M. Wendl, for Isaac Lucas L. Giordano, for Lyle Gough

HEARD: May 16, 17, & 18, 2016

The Honourable Justice J.R. Henderson

PRETRIAL MOTION # 3

GAROFOLI APPLICATION

Introduction

[1] This is a Garofoli application by the accused for an order excluding from the trial all evidence that was obtained as a result of an omnibus warrant dated July 17, 2013, a second omnibus warrant dated September 13, 2013, and search warrants dated November 6, 2013.

[2] It is the position of the accused that the material that was before the judges who issued the warrants was insufficient to justify the authorizations. Therefore, the accused submit that these warrants should be set aside, that the evidence that was obtained pursuant to the warrants was obtained in breach of s.8 of the Canadian Charter of Rights and Freedoms (“the Charter”), and that this evidence should be excluded from the trial pursuant to s.24(2) of the Charter.

Overview

[3] The three accused (“McGean”, “Lucas”, and “Gough”), between them, are charged with a variety of criminal offences, including trafficking in heroin and cocaine, conspiracy to traffic in heroin and cocaine, and acting for the benefit of, at the direction of, or in association with a criminal organization. Specifically, the Crown alleges that the accused were all members of the Black Pistons Motorcycle Club (“BPMC”), which the Crown submits was a criminal organization. McGean also faces prohibited weapons charges.

[4] The investigation into the activities of the accused persons was a joint forces investigation known as Project Resurgence. During the initial stages of Project Resurgence, members of the Niagara Regional Police Services (“NRPS”) applied for, and obtained, seven tracking warrants pursuant to s.492.1 of the Criminal Code of Canada (“the Criminal Code”), and one dialed number recorder (“DNR”) warrant pursuant to s.492.2 of the Criminal Code. I will refer to these eight warrants collectively as “the predicate warrants."

[5] The predicate warrants were based primarily on information received from confidential informants (“CIs”). The first three tracking warrants were dated January 29, 2013, and related to a Chrysler 300 motor vehicle, a GMC Yukon motor vehicle, and a Hummer SUV motor vehicle, all of which were alleged to be vehicles that were being used by the accused McGean. Two more tracking warrants were issued on March 28, 2013, and related to the Chrysler 300 and the Hummer. Then, a DNR warrant was issued on May 9, 2013, regarding cellular telephone numbers that were allegedly used by McGean and David Crothers (“Crothers”). Finally, on May 22, 2013, two more tracking warrants were issued with respect to the Chrysler 300 and the Hummer.

[6] As a result of the eight predicate warrants, certain information was obtained by the NRPS. During the same period of time the police officers were pursuing other aspects of Project Resurgence. Specifically, the officers conducted surveillance on the accused persons and others, and the officers continued to collect and analyze confidential information that was being provided by CIs.

[7] The first omnibus warrant (“the July 2013 warrant”) included an authorization to intercept communications pursuant to s.186 of the Criminal Code. The July 2013 warrant also included, among other things, a tracking warrant, a DNR warrant, a warrant for covert entry and the use of a mobile device identifier pursuant to s.487.01, and an assistance order for the production of telephone records pursuant to s.487.02. The Information To Obtain (“ITO”) in support of the July 2013 warrant included information obtained as a result of the predicate warrants, information received from the CIs, information from police records, and information gleaned from the police surveillance.

[8] The second omnibus warrant (“the September 2013 warrant”) also included an authorization to intercept communications, a tracking warrant, a DNR warrant, a warrant pursuant to s.487.01, and an assistance order. The ITO for the September 2013 warrant consisted of the material that had been before the issuing judge in July 2013, plus some additional material, including information that had been obtained as a result of the execution of the July 2013 warrant. I note that the intercepted communications, or wiretaps, that resulted from the July 2013 warrant and the September 2013 warrant form a large part of the Crown’s case against the accused.

[9] Finally, on November 6, 2013, search warrants (collectively “the November 2013 warrant”) were issued pursuant to s.11 of the Controlled Drugs and Substances Act (“CDSA”) and s.487 of the Criminal Code that authorized searches of multiple premises, including McGean’s residence at 12 Water Street, St. Catharines, and the alleged BPMC clubhouse at 80 Page Street, St. Catharines. The ITO for the November 2013 warrant incorporated all of the information that had been obtained to that date.

[10] On the present application it is acknowledged that the key order for this court to review is the July 2013 warrant, particularly the s.186 authorization contained therein. In that respect, the accused raise several issues with respect to the sufficiency of the July 2013 ITO. The accused submit that large portions of the ITO should be excised for the purpose of this review; that the redacted ITO is insufficient to support the warrant; that there has been a breach of s.8; and that the evidence gathered as a result of the July 2013 warrant should be excluded.

[11] The accused raise the same issues with respect to the September 2013 warrant and the November 2013 warrant. In addition, these latter two warrants were based in part upon evidence that was obtained as a result of the July 2013 warrant. Therefore, the accused submit that the ITOs for these two warrants are also insufficient, and that the evidence gathered as a result of these two warrants should also be excluded.

[12] The Crown’s position is that there are no serious problems with any of the ITOs; that there has been no breach of s.8; and that all of the warrants are valid. In addition, as a preliminary matter, the Crown submits that the accused do not have standing to make all of the challenges that they have raised.

The General State of the Law

[13] There is no real disagreement with respect to the general state of the law that applies in this Garofoli application.

[14] In summary, the statutory requirements for issuing the warrants are set out in the legislation. The grounds for issuing an authorization to intercept communications, commonly called a wiretap warrant, are set out in s.186(1) of the Criminal Code. The grounds for issuing tracking warrants and DNR warrants are set out in s.492.1(1) and s.492.2(1) of the Criminal Code. The grounds for the search warrants are set out in s.11 of the CDSA, and s.487 of the Criminal Code.

[15] It is agreed that a police officer who swears an affidavit in support of an application for a warrant, commonly called an ITO, has a duty to make full, frank, and fair disclosure to the issuing judge of all material facts. See R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 46.

[16] Once a warrant has been issued, that warrant is presumed to be valid. Thus, the onus is on the accused persons in this case to prove on a balance of probabilities that their Charter rights have been violated, and the evidence should be excluded under s.24(2). See R. v. Collins, [1987] 1 S.C.R. 265 at paras. 21 - 22.

[17] In a Garofoli application the reviewing judge must consider any alleged improprieties regarding the issuing of the warrant, including any breach of the Charter, fraud, non-disclosure, and misleading evidence. Amplification of the material in the ITO is permitted.

[18] As discussed in Araujo at para. 57, if any of the material in the ITO is found to be false, erroneous, or improper, the reviewing court is to disregard that evidence. This has been called excision. In the case of R. v. Burke, [2013] O.J. No. 2920 (OCA) at para. 21 Weiler J. put it this way, “After the amplification hearing, … the reviewing judge decides whether any part of the information in the ITO is incorrect, misleading, or unreliable. If so, that information must be excised.” It is also clear that any information obtained by unconstitutional means must be excised. See R. v. Mahmood, 2011 ONCA 693, [2011] 107 O.R. (3d) 641 at para. 115.

[19] Once the excision process has been done, the reviewing court must then determine whether the authorizing judge could have granted the warrant based upon the redacted ITO. In the case of R. v. Garofoli, [1990] 2 S.C.R. 1421 at para. 56, Sopinka J. wrote, “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.” [Emphasis added]

[20] At paras. 51 - 54 of Araujo, LeBel J. confirmed that, after any offending parts of the ITO had been excised, the reviewing judge must ask whether there was reliable evidence that might reasonably be believed on the basis of which the authorizations could have issued. This test was most recently confirmed in R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657 at para. 16.

Specific Submissions on the July 2013 Warrant

[21] Before I deal with standing, it is important to understand the accuseds’ specific allegations regarding the July 2013 warrant. I would like to divide those allegations into five categories.

[22] Number one, the accused submit that the ITO contains misleading opinion evidence that compares the activities of these accused and the BPMC to the activities of the Hells Angels. Those statements are contained at paragraphs 15, 16, and 23 of the ITO and at Appendices D and E to the ITO. The accused submit that this material should be excised.

[23] Number two, the accused submit that the information about a seizure of cocaine by the RCMP in British Columbia should be excised. In the ITO at paragraphs 354 - 355, the affiant states that the RCMP, following up on a tip, seized a package that contained one kilogram of cocaine that had been shipped by UPS from St. Catharines to Vancouver. The fingerprint of the accused McGean was found to be on the packing material. The accused submit that the police officers who seized the parcel from UPS and inspected it did so in breach of the Charter, as they did not obtain a warrant to search the package. Thus, the accused say that this information should be excised from the ITO.

[24] Number three, the accused submit that the information about the seizure of 31 pounds of marijuana, described at paragraphs 390 – 397 of the ITO, should be excised. That incident relates to marijuana that was shipped by FedEx from British Columbia, and was picked up in St. Catharines by Mike Ratelle. The accused submit that this incident is irrelevant to the accused before the court, and should be excised.

[25] Number four, the accused submit that some of the information contained in the July 2013 ITO, set out at paragraphs 402 – 414, is information that was obtained as a result of the predicate warrants. The accused submit that the ITOs for the predicate warrants were insufficient, and that the predicate warrants should not have been issued. Thus, the accused say that information obtained through the execution of the predicate warrants should be excised from the July 2013 ITO.

[26] Number five, the accused submit that the balance of the ITO is not strong enough to provide a basis for the July 2013 warrant. In particular, the accused submit that the affiant relies heavily on the CI information, but that the CI information consists primarily of bald statements of fact and conclusory statements; that there is very little detail; and that there is no source information. They also submit that some of the information in the ITO is misleading or contradictory. Overall, the accused submit that the CI information does not meet the test of being compelling, credible, and corroborated, and therefore it cannot support the warrant.

Standing

[27] Regarding the standing issue, the Crown correctly states that the breaches alleged in this case are with respect to the personal rights of the accused persons. That is, the alleged breaches relate to s.8 of the Charter, and it is well established that s.8 protects a person’s right to privacy, which is a personal right.

[28] Moreover, the Crown correctly states that an accused only has standing to assert a breach of his own Charter rights, and an accused cannot demand a personal remedy based on the breach of the Charter rights of another person. See R. v. Edwards, [1996] 1 S.C.R. 128 at para. 45 and R. v. Pugliese (1992), 71 C.C.C. (3d) 295.

[29] I agree that in any s.8 challenge there are two distinct questions that must be asked. The first is whether the accused had a reasonable expectation of privacy. The second is whether the impugned search was an unreasonable intrusion on that right of privacy. I also agree that there is no need to consider the reasonableness of the search unless and until the accused can establish a reasonable expectation of privacy in the place or thing that is the subject of the search. See Edwards at paras. 33, 39, and 45.

[30] In this case, the Crown submits that some or all of the accused cannot establish a reasonable expectation of privacy in the intercepted communications, or in the tracking of the vehicles, or in the phone numbers captured by the DNR warrant. Therefore, the accused have no standing to challenge the constitutionality of this evidence.

[31] I will deal with standing with respect to the intercepted communications first. In the July 2013 warrant, McGean was named as a principal known person and therefore it can be said that McGean was a target of the wiretap warrant. Neither Lucas nor Gough were named in the July 2013 warrant. However, in the September 2013 warrant both McGean and Lucas were named as principal known persons and Gough was named as an “other known person.” The Crown alleges that the voices of all three accused were captured as a result of both the July 2013 and September 2013 warrants.

[32] In the case of R. v. Shayesteh (1996), 31 O.R. (3d) 161 (OCA), Charron J. dealt with a similar situation. In that case, the accused was not initially named as a target for the intercepted communications, but as a result of a warrant, the calls of the accused were captured. At para. 40, Charron J. found that because it was the voice of the accused that had been captured, then the accused had a reasonable expectation of privacy in those calls and had standing to challenge the legality of the wiretap warrant.

[33] Relying on Shayesteh, the Crown submits that unless each accused admits that it was his voice that was captured, then that accused cannot establish that he had a reasonable expectation of privacy in the captured communications. Without such an admission, the Crown submits that the accused does not have standing to allege a Charter violation with respect to the intercepted communications.

[34] All of the accused in fact are now prepared to admit that it was their voice that was captured for the purpose of this application. Therefore, there is no standing issue in this case with respect to the intercepted communications, based on those admissions.

[35] However, it is important for other purposes for me to comment on the Crown's position with respect to standing. In my view, it is not necessary for the accused in this case to admit that their voices were captured on the intercepts in order to obtain standing. In my opinion, where the Crown seizes evidence, makes an allegation of the accused’s ownership or interest in that evidence, and intends to use that evidence to prosecute the accused, that accused has standing to challenge the constitutionality of the evidence.

[36] I accept that an accused cannot assert a Charter right or its breach based solely on the Crown's theory. See R. v. Sandhu (1993), 82 C.C.C. (3d) 236 (BCCA) at para. 11. However, the accused in this case do not rely solely on the Crown's theory to challenge the evidence; rather, the accused rely on evidence obtained by the Crown and which the Crown intends to use against the accused.

[37] A similar situation was dealt with by Clark J. in the case of R. v. Abdullahi, [2014] O.J. No. 4860. At para. 129, Clark J. wrote "It is routine in cases involving search warrants that accused persons are given standing to challenge the admissibility of evidence without having to testify and, a fortiori, without having to admit that the property seized was theirs or that they had a privacy interest in the place that was searched. Although we are dealing here with communications, the same logic applies…". I agree with that statement.

[38] Accordingly, with respect to the intercepted communications, I find that all of the accused have standing based on the admissions of the accused, as well as the fact that the Crown has seized evidence which the Crown claims to be the voices of the accused and which the Crown intends to use to prosecute the accused.

[39] The same logic applies to McGean's standing regarding the predicate warrants. As a result of the predicate warrants, the police officers tracked vehicles that the Crown alleges were used or operated by McGean. The police officers also recorded contact numbers for a telephone that the Crown alleges belonged to McGean. The Crown intends to use the captured evidence against McGean in the prosecution of this case. Based on the above-mentioned analysis, I am satisfied that McGean had a reasonable expectation of privacy in the vehicles and the telephone, and accordingly I find McGean has standing to challenge the predicate warrants.

[40] Finally, with respect to the standing of Lucas and Gough to challenge the predicate warrants, I accept that Lucas and Gough were not targets in the ITOs for those warrants and I accept that the captured evidence about the vehicles and the telephone is not evidence that the Crown intends to use in the prosecution of Lucas and Gough.

[41] However, one needs to consider the standing issue in the totality of the circumstances. The case against Lucas and Gough is inextricably interwoven with the case against McGean. All accused are jointly charged with, among other things, the offences of conspiracy and acting within the context of a criminal organization. The trial of all three accused will be heard simultaneously.

[42] If McGean could successfully challenge some aspects of the predicate warrants, and Lucas and Gough could not, that could lead to a finding that some aspects of the July 2013 warrant should be struck against McGean, but not struck against Lucas and Gough. This result would be entirely illogical given that one of the precursors of the July 3, 2013 warrant was the targeting of McGean in the predicate warrants. Therefore, looking at the totality of the circumstances, in my view, it is not sensible to permit McGean to challenge the predicate warrants, but not permit Lucas and Gough to do the same.

[43] In summary, I find that all three of the accused have standing to challenge all of the warrants that are before this court.

Analysis

[44] I now turn to my analysis of the accuseds’ allegations regarding the July 2013 warrant.

Expert Opinion

[45] The first allegation relates to the expert opinion about the accuseds’ association with motorcycle gangs. Attached as Appendix D to the ITO is a lengthy opinion paper about the composition of and the activities of the Hells Angels, prepared by an officer in the Biker Enforcement Unit of the Toronto Police Services. The officer makes it clear that in his opinion the Hells Angels constitute a criminal organization, and that members of the Hells Angels are routinely engaged in criminal activity. The difficulty with this expert opinion is that there is no evidence, nor any allegation, that any of the accused in this case has any association with the Hells Angels.

[46] The affiant of the ITO at paragraph 15 states that he has read the officer’s opinion on the Hells Angels and he believes that there are strong parallels between the Hells Angels and the Outlaws. The affiant repeats certain parts of the officer’s opinion, including comments about the propensity of the Hells Angels for violence, intimidation, and criminal activity. In my view, given that there is no connection between these accused and the Hells Angels, the material contained in Appendix D and the statements made by the affiant in the ITO are highly inflammatory, and have little or no relevance to this case.

[47] Further, Appendix E to the ITO appears to be a two-page opinion letter, undated and unsigned, from an OPP officer who is currently in the Biker Enforcement Unit. The author offers some opinions about the BPMC and the Outlaws. At paragraph 16 of the ITO the affiant states that he has read this letter and confirms that the BPMC is a support club for the Outlaws.

[48] I accept that this opinion may be relevant to this case because some of the CIs indicated that the accused are members of the BPMC and that the BPMC have some association with the Outlaws. The difficulty is that, if Appendix E is to be used as an expert opinion, it is sadly deficient. Specifically, the author of Appendix E provides statements of opinion, but does not provide any factual foundation for the opinion. For example, the officer wrote, "I am aware of Black Pistons members committing criminal acts on behalf of Outlaw members…". He gives no particulars for this statement. Further, I am unsure of the officer’s education, and training, as well as his experience with the BPMC or the Outlaws.

[49] That being said, I am convinced that some aspects of Appendix E are relevant. For example, the comments that describe the insignia of the BPMC, and the colours of the BPMC are relevant. However, those aspects of Appendix E are unnecessary as they are covered in the ITO at paragraphs 17 - 22. Overall, I find that Appendix E has little value and is prejudicial to the accused.

[50] Finally, on this issue, I accept the submission of the accused that the description of the Outlaws distribution network at paragraph 22 is irrelevant and inflammatory.

[51] Therefore, for the purpose of this application, I find that paragraphs 15, 16, and 22, as well as Appendices D and E should be excised.

The UPS Package

[52] Regarding the UPS package that was seized in British Columbia, the accused submit that if the police officers wished to examine a package that was sent by courier without the consent of the intended recipient, the police officers were required to obtain a warrant to do so; otherwise, the inspection of the package by the officers constituted a breach of s.8 of the Charter. The accused rely upon the case of R. v. Fry (2000), 142 C.C.C. (3d) 166 (Nfld. C.A).

[53] I accept that this statement of law by the accused is generally correct. However, I have difficulty with the accuseds’ request that the evidence of McGean's fingerprint should be excised from the ITO in these circumstances.

[54] The first difficulty is that I do not have a proper evidentiary foundation on which to find that there has been a breach of s.8. The evidence I have before me is an occurrence report that sets out the details that I discussed earlier. Further, I have evidence that the UPS contract of service gives UPS the right to open and inspect any package. And, from the occurrence report it appears as if the package was first opened by a UPS manager, not the RCMP officer. The Charter of course only applies to the actions of the police, not the courier.

[55] Therefore, I find that in order to make a s.8 determination, I require more information with respect to the tip that was received, the nature of the tip, the circumstances surrounding the delivery of the package, and the circumstances surrounding the opening and inspection of the package. Accordingly, I am not prepared to find that there has been a breach of s.8.

[56] Moreover, if I were to find that there has been a breach of s. 8, that does not necessarily mean that the evidence obtained as a result of the search would be excluded from the proceedings. Rather, I would need to evaluate all the circumstances in light of s. 24(2) of the Charter. I simply do not have all of those circumstances before me. See R. v. Sanders, [2001] O.J. No. 2205.

[57] The other difficulty regarding this incident is that McGean has not established that he had a reasonable expectation of privacy with respect to this package. As I indicated earlier, expectations of privacy are personal rights, as discussed in the Edwards case. In the circumstances of this incident, McGean did not ship the package, and McGean was not the intended recipient. There is no evidence to suggest that McGean had an ownership interest in the package. Accordingly, McGean had no reasonable expectation of privacy in the package. Thus, McGean cannot assert s.8 rights with respect to a search of the package.

[58] The case law establishes that an accused cannot claim a remedy pursuant to the Charter where that remedy is based upon the breach of the Charter rights of a third party. In that respect see the aforementioned decisions in Pugliese, Edwards, and Sandhu, as well as R. v. Chang, [2003] O.J. No. 1076 (OCA).

[59] Therefore, the portion of the ITO that refers to the seizure of the UPS package in British Columbia and the discovery of McGean's fingerprint, will not be excised.

The Seized Marijuana

[60] Regarding the 31 pounds of marijuana that was seized in St. Catharines, the accused submit that there is no connection between this incident and any of the accused before this court. I agree. The affiant of the ITO deposed that the package was shipped from a person in British Columbia to Nick Shewan in St. Catharines. Further, the affiant deposed that the package was in fact picked up by Mike Ratelle. There is no indication that McGean, Lucas, or Gough had anything to do with this package.

[61] The difficulty for the accused is that the July 2013 ITO named six principal known persons and 24 other known persons. Mike Ratelle was named as an “other known person.” Accordingly, it is proper for the affiant to include information about this incident in the ITO. Even though this incident has little, or no, connection to these accused, it was properly included in the ITO.

[62] The only concern I have is the statement by the affiant at paragraph 393 of the ITO that "Mike Ratelle appears on the McGean DNR and I believe that this demonstrates that Ratelle has an association to the McGean network." In fact, out of the approximately 800 numbers recorded for McGean’s telephone Mike Ratelle’s number appears only twice. This, in my view, does not indicate that Ratelle has an association with the McGean network. Therefore, I find that the affiant’s statement at paragraph 393 is misleading, and it is inflammatory as it appears immediately after the affiant’s description of the seizure of the 31 pounds of marijuana from Mike Ratelle.

[63] For this reason, I find that paragraph 393 of the ITO should be excised.

The Predicate Warrants

[64] I next turn to the predicate warrants. The accused submit that all of the information obtained pursuant to the execution of the predicate warrants that is included in the July 2013 ITO should be excised. The accused submit that the ITOs for the predicate warrants are fatally flawed because the criminal records for the CIs were not provided. Further, the accused submit that the CI information is not strong and cannot form the basis for the predicate warrants.

[65] For the purpose of my analysis I confirm that I must assess the strength of the CI information using the approach set out at para. 53 of the Debot decision, which I will reference later. This is the same approach that is routinely used to review the validity of a search warrant or a wiretap warrant.

[66] Therefore in assessing the CI information, I need to consider the totality of the circumstances in consideration of the credibility of the CIs, the compelling nature of the information, and whether there is corroboration of the information. Then, I must determine whether there was reliable evidence upon which, if reasonably believed, the issuing judge could have issued the predicate warrants.

[67] However, there is a difference between the test that applies to a search warrant or a wiretap warrant and the test that applies to these predicate warrants. A search warrant under s.11 of the CDSA or under s.487 of the Criminal Code, for example, uses the phrase, "reasonable grounds to believe"; however the threshold test for a tracking warrant or a DNR warrant is much lower.

[68] The test for issuing tracking warrants or DNR warrants has been called the “reasonable suspicion test.” This phrase arises out of the legislation.

[69] For a tracking warrant under s.492.1(1) a judge must be satisfied that there are "reasonable grounds to suspect that an offence has been or will be committed…" and that "tracking the location of one or more transactions or the location or movement of a thing, including a vehicle, will assist in the investigation of the offence…". For a DNR warrant under s.492.2 (1) a judge must be satisfied that there are “reasonable grounds to suspect that an offence has been or will be committed…" and "the transmission data will assist in the investigation of the offence…". [Emphasis added]

[70] In the case of R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 27, Karakatsanis J. wrote, "Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of a crime."

[71] This standard was also considered by Dambrot J. in the case of R. v. Brown, 2014 ONSC 6323 with respect to a tracking warrant on a cell phone. At para. 23, Dambrot J. wrote "The plain fact is that a tracking warrant, unlike a conventional warrant, involves only a limited intrusion into privacy, and may issue pursuant to section 492.1 on the basis only of ‘reasonable grounds to suspect’ and not ‘reasonable grounds to believe’."

[72] Therefore, in this case I must consider the CI information using the Debot approach, but the ultimate question is whether the issuing judges could have issued the predicate warrants on the basis of the relatively low threshold of reasonable suspicion.

[73] That brings me to the fact that the criminal records for the CIs were not provided in the ITOs for the predicate warrants. To be clear, some information with respect to the criminal records of the CIs was provided in the predicate warrant ITOs. For example, in the first ITO, regarding CI #2, the affiant deposed that CI #2 had a criminal record, but not for offences of perjury or obstructing police. Similar statements were made with respect to CI #3 and CI #5. As an aside I note that the complete criminal records were provided in the ITOs for the two omnibus warrants and the search warrants.

[74] In this case the accused submit that the predicate warrants should not have been issued because there was no detailed criminal record for the CIs. The accused rely on the case of R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742 at para. 33. On the other hand the Crown submits that provision of the criminal records for the CIs is not mandatory and relies on the decision in R. v. Dhillon, 2016 ONCA 308.

[75] In my view, both the Rocha decision and the Dhillon decision confirm that it is proper for the reviewing judge to take a contextual approach to assessing the strength of the CI information. The reviewing judge must consider the credibility of the CIs, the compelling nature of the information, and any corroboration of the information in the totality of the circumstances. There is no checklist that mandates disclosure of criminal records.

[76] I accept that the detailed criminal record of a CI is a tool that is used to assess the credibility, or lack of credibility, of a CI. The fact that the detailed criminal records have not been produced weakens the credibility of the CIs in this case. However, it is only one factor. As Wilson J. stated at para. 53 of the Debot decision, "Weaknesses in one area may, to some extent, be compensated by strengths in the other two."

[77] With that in mind I turn to the first ITO that was filed in support of the three initial tracking warrants. In that ITO the affiant relied upon six CIs.

[78] As to the credibility of the CIs, I accept that the lack of detailed criminal records weakens the credibility. However, I also note that four of the CIs had provided information to police in the past that had proved to be correct. This fact strengthens the credibility of these four CIs.

[79] Regarding the compelling nature of the information, the accused submit that much of the information is neutral information such as information about where McGean lives, or is conclusory information such as "McGean sells heroin."

[80] I accept that there are several neutral and/or conclusory statements from the CIs. However, I find that interspersed in the CI information is some detail. For example, between the six CIs, information is provided to the effect that McGean operates the three subject vehicles; that McGean uses several drug dealers; that McGean has connections to a biker gang; that McGean deals from his vehicles in downtown St. Catharines; and that McGean is a large supplier of cocaine and heroin.

[81] Regarding corroboration, the officers obtained some independent corroboration of the CI information. Specifically, police officers confirmed through other police records that McGean had been operating or had the use of the three vehicles in question, and that McGean resided on Water Street in St. Catharines. Moreover, police officers obtained McGean’s criminal record which shows 27 prior convictions, five of which were for drug-related offences.

[82] Also, with respect to corroboration there is no doubt that there is corroboration as between the individual CIs. The six CIs in the initial ITO did not provide identical information, but provided similar information to multiple police officers.

[83] Overall, given the lower standard for issuing the predicate warrants, I find that the information contained in the first ITO was sufficient. With respect to the subsequent predicate warrants, I accept that the strength of the ITOs increased as time passed. By the date of the ITO for the final predicate warrants, the police officers were relying on the information obtained from nine CIs.

[84] In summary, I find that the evidence before the issuing judges was such that the issuing judges could have issued all of the predicate warrants. Therefore, the predicate warrants should not be set aside, and the material that was obtained as a result of the predicate warrants will not be excised from the July 2013 warrant.

The Strength of the Information in the ITO

[85] That brings me to the final issue raised by the accused. In essence, the accused submit that, after excision of the offending parts, the July 2013 warrant is based primarily on CI information. After careful scrutiny of the CI information, the accused submit that I should find that the issuing judge did not have enough reliable evidence upon which the July 2013 warrant could have issued.

[86] The Crown acknowledges that the July 2013 warrant is based primarily on confidential information. In fact, the ITO contains information from 19 CIs, as well as information from three anonymous Crime Stoppers tipsters. The Crown also points out that the ITO includes information gleaned from police records, from the execution of the predicate warrants, and from police surveillance.

[87] All parties acknowledge that I must analyze the strength of the CI information by using the approach set out in R. v. Debot, [1989] 2 S.C.R. 1140. For clarity, I confirm that in the Debot case police officers, relying upon information from a CI that the accused would be participating in a drug transaction, stopped the accused’s vehicle, and conducted a warrantless search of the accused and the vehicle.

[88] At para. 53 of the Debot decision Wilson J. wrote:

In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify a warrantless search. First, was the information predicting the commission of a criminal offence compelling? Secondly, where that information was based on a “tip” originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.’s view that the “totality of the circumstances” must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

[89] In this case I must use this approach to decide if there is enough reliable evidence upon which, if reasonably believed, the July 2013 warrant could have issued. The legislation for issuing the various warrants that are included in the omnibus July 2013 warrant differs. However, all parties accept that I should focus on the s.186 wiretap authorization, as it is the most significant.

[90] Section 186 (1) of the Criminal Code reads:

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 be impractical to carry out the investigation of the offence using only other investigative procedures.

[91] I accept that this is a higher standard than the “reasonable suspicion test” that I discussed earlier. I also note that subparagraph 1(b) does not apply where the issuing judge is satisfied that the application is in relation to an offence committed for the benefit of, at the direction of, or in association with a criminal organization.

[92] In argument the accused submitted that there is an absence of detail in the CI’s information; that there is little information about the source of the CI’s knowledge; and that there is little corroboration. The accused also raised concerns about some misleading information that was set out in the ITO.

[93] Regarding the allegation of misleading information, the most contentious issue relates to the fact that two CIs provided information that McGean associated in the drug trade with Owen England and Phil England. The accuseds’ criticism of this information is that both Owen England and Phil England were in custody in jail at the relevant times, and that fact was not made obvious to the issuing judge.

[94] In fact, there was information in the ITO that both Owen England and Phil England were in jail at the relevant times. At paragraph 177 of the ITO the affiant deposed that Phil England was initially out on parole and was then re-arrested and was currently being held in jail. At paragraph 197 of the ITO the affiant deposed that Owen England was a federal inmate. Appendix C to the ITO provides information that Owen England was in the Niagara Detention Center at the relevant time.

[95] Therefore, the accuseds’ only possible complaint about this issue is that the affiant did not disclose the fact that Owen and Phil England were in custody at a place in the ITO that was immediately adjacent to the CI information about McGean's association with Owen and Phil England. In my view, this is not a valid complaint. There was a great deal of material in the ITO, and it would have been impossible to put all of the related details on the same page. I find that there was nothing improper about the way in which the information regarding Owen England or Phil England was presented in the ITO.

[96] The accused also suggested that there was some contradictory information supplied by the CIs, such as the source of McGean's drug supply, and that it was misleading for the affiant not to highlight this contradiction for the issuing judge. In my view, this submission also has no merit.

[97] Contradictions between CIs should be expected, particularly where there are 19 CIs. If all the CIs gave identical information in the same words, that in itself would be suspicious. Moreover, this Court should give the issuing judge some credit for being able to read all of the information contained in the ITO, and identify the similarities, differences, strengths, and weaknesses in the information. Those specific points do not need to be highlighted by the affiant. Therefore, I find nothing improper about the affiant’s approach to any contradictions between the CIs.

[98] Regarding the credibility of the CIs, as I said earlier all the criminal records for all of the CIs were provided in the July 2013 ITO, and all subsequent ITOs. Therefore, the issuing judge would have had a good picture of the criminal history of all of the CIs.

[99] I note that 14 of the CIs were identified as having a criminal record, but none had records for perjury or public mischief. The other five CIs had no criminal record at all. Further, on the credibility issue, 12 of the CIs were identified as persons who have given information to the police in the past that had proved to be correct.

[100] Overall, I find that the group of 19 CIs when considered collectively has modest credibility.

[101] Regarding the compelling nature of the information, the accused submit that the CIs provided no detail, gave bald conclusory statements, and offered no source information. I accept that there are certainly many examples of CI information that consists of bald statements with no detail and no source information.

[102] In the Debot case, Wilson J. commented that the tip received by the officer in that case was compelling because the tipster identified the participants and the courier, named the location of the transaction, specified the time of day of the transaction, and gave the source of his information as being a conversation with one of the participants.

[103] Ferguson J. dealt with a similar situation in R. v. Nguyen, 2010 ONSC 1520. At para. 15 Ferguson J. said that when dealing with informants it was important to ascertain whether the tip contained sufficient detail to ensure that it was based on more than mere rumour or gossip; to ascertain whether there were any indicia of the informant’s reliability; to know the source of the informant’s knowledge; and to know if the informant was acting vindictively. All of these points in my view go into an assessment of the compelling nature of the tip.

[104] I accept that CI information is more compelling if it provides information that is not widely known, it contains some detail, and the CI discloses a reliable source. However, I find that in most cases police officers are not in a position to tell the CI exactly how the tip must be given to them. The officers receive the tip in the form provided by the CI. The issue is whether, in the totality of circumstances, the tip is compelling enough to distinguish fact from rumor or gossip.

[105] I will attempt to briefly summarize the information provided by the 19 CIs, but I will not attempt to list all of it as it is far too voluminous. I accept that large portions of the CI information are bald general statements, but I also find that there is some detail. In my view the most prominent feature of the CI information is the large number of CIs.

[106] The following is information that comes from more than one CI:

• McGean is a member or president of the BPMC.
• McGean and/or the BPMC have an association with the Outlaws, or the BPMC will become Outlaws in the future.
• McGean associates with Hill and Macedo, both of whom are members of the Outlaws.
• Other members of the BPMC include Rafet, Crothers, Nolin, Ross, Keniry, and Seeley.
• Ross, Hill, and Nolin are recruiting members for the BPMC.
• McGean uses others to sell drugs, and McGean is “hands off” the drug deals.
• McGean is associated in the drug trade with Crothers, De Foy, De Giorgio, Rafet, Keniry, and Nolin.
• Rafet is doing home invasions for the BPMC and forcing other drug dealers to sell for them. The BPMC are forcing others to sell drugs for them.
• Drugs are being shipped by courier from British Columbia to McGean in St. Catharines.
• The BPMC are in disputes over drugs. The BPMC are involved in violence related to drug dealing.
• McGean owns Koko’s Bar. The BPMC and Outlaws members frequent Koko’s Bar. They hold BPMC club meetings at Koko’s Bar.
• The BPMC clubhouse is at 80 Page Street, St. Catharines. 80 Page Street is or was owned by Carley. McGean forced or extorted Carley to transfer 80 Page Street to him.

[107] All of the above-mentioned statements are statements provided by multiple CIs. In my view all of the above statements contain some detail. In addition, the CIs, collectively, provided telephone numbers for McGean and other persons mentioned above. They also provided the names of other friends or associates of McGean and/or the BPMC. They identified McGean’s residence and his vehicles. They identified the drugs involved as heroin, cocaine, and marijuana.

[108] The above-mentioned detailed statements must be read in conjunction with the more general conclusory statements such as "McGean is the largest supplier of heroin in Niagara." In my view, an issuing judge who reads the bald conclusory statements along with the above-mentioned detailed statements would have compelling information with respect to the particulars of the alleged criminal activity.

[109] The only real element missing from the CI information is the source of the information provided. None of the CIs explained how they obtained the information that they related to the police officers. It is possible that they may have withheld the source information for their own safety. However, defence counsel submit that it is also possible that there was a rumour in town about McGean and/or the BPMC, and the CIs all could have been repeating the same rumour. I agree that this is a legitimate concern.

[110] I now move to the issue of corroboration. There is some independent corroboration from police incident reports. In particular, in June 2013 a police officer spoke with McGean's father, Thomas McGean. Thomas McGean was wearing BPMC clothing at the time and confirmed that his son, the accused, was the president of the BPMC.

[111] Later in June 2013 there was an incident in which a police officer encountered a disabled motorcycle on the shoulder of the highway and stopped to assist. The driver identified himself as the accused McGean. McGean told the officer that he owned 80 Page Street. McGean also complained of harassment of people who were wearing BPMC clothing.

[112] Further, a police check of the ownership of 80 Page Street confirmed that it was owned by a numbered corporation that was controlled by Carley.

[113] In addition to this information, the ITO includes information that was obtained from the execution of the predicate warrants. This information showed that the McGean vehicles made stops at the residences of the various people named as his associates by the CIs, and made many trips to Koko’s Bar and the BPMC clubhouse.

[114] Finally, there is some corroboration in the form of the police surveillance. In summary, the police surveillance established the following:

• McGean resides at 12 Water Street in St. Catharines, drives a Hummer, and rides motorcycles.
• McGean and his associates frequently attend Koko’s Bar and 80 Page Street.
• McGean and his associates regularly wear BPMC paraphernalia and clothing.
• McGean regularly associates with Crothers, Nolin, Rafet, Carley, and Ross.
• Nolin, Fyfe, De Foy, Hook, Crothers, and Keniry engaged in activities consistent with street-level trafficking.

[115] Finally, the most significant corroboration of the CI information in my view comes from the CIs themselves. That is, there is inter se corroboration as between the CIs. The most prominent feature of the CI information in this case, as I indicated earlier, is the sheer number of CIs. Nineteen CIs provided very similar information to multiple police officers about the criminal activities of the accused. That in itself is significant corroboration.

[116] Overall, I find that the CIs have modest credibility; that there are some pros and cons about the compelling nature of the CI information; and that there is significant corroboration of the CI information. On that basis I find that there was reliable evidence upon which, if reasonably believed, the issuing justice could have issued the s.186 authorization to intercept communications in the July 2013 warrant. The same analysis applies to the other warrants in that omnibus warrant. Therefore, I find that there has been no breach of s.8 of the Charter; that the July 2013 warrant should not be set aside; and the evidence should not be excluded.

[117] Regarding the September 2013 warrant, the same analysis applies with the same result.

[118] Regarding the November 2013 warrant, I accept that the test is slightly different as the search warrants were issued pursuant to s.11 of the CDSA and s.487 of the Criminal Code. However, using the same analysis of the CI information and adding the additional information that was obtained as a result of the execution of the two omnibus warrants, I find that there was no breach of s.8 with respect to the November 2013 warrant.

Summary and Conclusion

[119] In conclusion, regarding the two omnibus warrants and the November 2013 search warrants, I find that there has been no breach of the Charter. Therefore, the accuseds’ application to exclude the evidence from this trial is dismissed.

J.R. Henderson, J. Date: June 1, 2016

COURT FILE NO.: 121/15 DATE: 2016/06/01 ONTARIO SUPERIOR COURT OF JUSTICE Her Majesty the Queen – and – Randy McGean, Isaac Lucas, and Lyle Gough

PRETRIAL MOTION # 3 GAROFOLI APPLICATION J.R. Henderson, J. Released: June 1, 2016