R. v. Phan, 2017 ONSC 978

COURT FILE NO.: CR-15-50000659-0000

DATE: 20170213

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

THANH TUNG PHAN

Applicant

S. Byrne and J. Spare, for the Crown

R. Posner and C. Zeeh, for the Applicant

HEARD: November 7, 8, 9, 10, 15 and 16, 2016 and January 4, 2017

GAROFOLI RULINGS

B. P. O’Marra J.

overview

[1] On January 14, 2014, Durham Regional Police Service (DRPS) obtained an authorization pursuant to Part VI of the Criminal Code of Canada, R.S.C. 1985 c. C-46 and related orders in regard to a sprawling drug investigation. The applicant Phan was one of many named targets but was not the focus of that investigation. A tracking device was surreptitiously placed on his vehicle (a black Mercedes GLK, “The GLK”) and his phone conversations were intercepted. He was periodically followed by surveillance teams.

[2] In the evening of February 4, 2014, Peter Nguyen and his girlfriend, Andrea Villareal, drove in her car to the Wildfire Restaurant on Yonge Street in Toronto. Unbeknownst to them, a tracking device had earlier been surreptitiously placed on her car by Phan. Shortly after 9:20 p.m., Peter Nguyen and Andrea Villareal left the restaurant and walked towards her parked car. They were approached by two men who began shooting at Peter Nguyen. The last shots were fired as he lay on the ground. Andrea Villareal was untouched. Peter Nguyen died as a result of multiple gunshot wounds. The two gunmen fled on foot. A short distance away they were observed by a civilian to enter a black Mercedes GLK and be driven away. The two gunmen have never been identified or apprehended.

[3] As fate would have it, Phan and his GLK were being followed and surveilled by members of DRPS that evening. The police observed Phan park his GLK near the Villareal vehicle near the Wildfire restaurant approximately ninety minutes before the shooting. They watched Phan kneel at the rear of the parked Villareal vehicle and appear to remove something.

[4] Surveillance prior to February 4, 2014, intercepted communications and search warrants executed on February 13, 2014 and April 10, 2014 provided evidence that linked Phan to the tracking device that had earlier been surreptitiously placed on the Villareal vehicle and removed by Phan shortly before the shooting.

[5] Phan is charged with the first degree murder of Peter Nguyen. The Crown’s theory is that Phan tracked the Villareal vehicle and was the getaway driver for the two gunmen.

THE AUTHORIZATION AND RELATED ORDERS

[6] In September of 2013, DRPS began a major investigation into drug trafficking (Project Wheeler). One of the main targets was Shawn Hussain. The first appearance of Phan in the investigation was on December 19, 2013. Surveillance that day linked Phan to Hussain in what appeared to be a bag exchange drug transaction. The Information to Obtain (ITO) of Detective Nathan Campbell (the affiant) extends for 101 pages and 356 paragraphs. The first reference to the apparent drug transaction with Hussain is at paragraph 156 of the ITO. The affiant deposed that, based on information provided to him by other officers and checks on police databases, Phan was observed in a bag exchange with Hussain on December 19, 2013. The affiant later learned from members of the Toronto Police Service (TPS) that Phan was a target in an ongoing investigation into a series of gangland shootings (Project RX).

[7] DRPS installed a camera in the hallway outside the condominium unit where Phan lived at 90 Broadview Avenue in Toronto. The Crown concedes that this was not specifically authorized by the authorization and orders dated January 14, 2014.

THE APPLICATIONS

[8] The Crown conceded that Phan was not actually observed in the apparent bag exchange with Hussain on December 19, 2013. The applicant submitted that the reference to actually seeing Phan interact with Hussain was not just inaccurate. He submitted that this critical assertion by the affiant was knowingly false and misleading. In the alternative, he submitted it was grossly negligent and reckless. He submitted that virtually all of the evidence gathered against Phan based on the authorization and orders dated January 14, 2014, and the later search warrants, must be excluded. He submitted that the authorizing justice was knowingly misled or at least led astray by a cavalier failure to properly follow up on information and properly inform the authorizing justice. The applicant also sought leave to cross-examine the affiant and certain sub-affiants as well as further disclosure on the Garofoli application.

[9] The applicant specifically sought exclusion of the following:

(a) All data obtained from the tracking device installed by the police on the applicant’s vehicle;

(b) All observations of the applicant and/or his vehicle by surveillance officers on January 22, 2014 and February 4, 2014;

(c) All private communications of the applicant intercepted by police, including but not limited to, his alleged conversation with Blackline Tracking on January 22, 2014;

(d) All video footage obtained from the camera installed by the police in the hallway on the applicant’s floor of his condominium; and

(e) All evidence seized from the applicant’s residence at 824-90 Broadview and vehicle on April 10, 2014.

[10] The Crown submitted that a breach of s.8 of the Charter of Rights and Freedoms had not been established. In the alternative, if there was a breach, the evidence should not be excluded based on s. 24(2) of the Charter.

[11] On January 4, 2017, I dismissed the applications and ruled that all of the evidence was admissible. These are my reasons.

THE HEARING

Leave to Cross-Examine the Affiant

[12] The Garofoli test for cross-examination of the affiant was reaffirmed in R. v. Pires, R. v. Lising, [2005] 3 S.C.R. 343, 2005 SCC 66 at para. 10:

…With respect to the affiant, the Court recognized the need to circumscribe the cross-examination within reasonable limits. First, there would need to be a threshold showing of a basis for embarking on an enquiry and second, when permitted, the cross-examination should be confined to questions directed to the issue for consideration by the court. Sopinka J. described the test as follows:

With respect to prolixity, I am in favour of placing reasonable limitations on the cross-examination. Leave must be obtained to cross-examine. The granting of leave must be left to the exercise of the discretion of the trial judge. Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds.

When permitted, the cross-examination should be limited by the trial judge to questions that are directed to establish that there was no basis upon which the authorization could have been granted. The discretion of the trial judge should not be interfered with on appeal except in cases in which it has not been judicially exercised. While leave to cross-examine is not the general rule, it is justified in these circumstances in order to prevent an abuse of what is essentially a ruling on the admissibility of evidence. [p. 1465]

See also R. v. Shivrattan and Silvera, 2017 ONCA 23 at para. 37.

[13] This issue was recently addressed in R. v. Green, 2015 ONCA 579 at paras. 31, 32, 34-36 and 52:

An accused who seeks to cross-examine the affiant of an ITO in aid of a motion to exclude evidence obtained as a result of the execution of a search warrant must obtain leave from the trial judge. In deciding whether to grant leave, the trial judge will have regard to various competing interests, including the accused’s right to make full answer and defence, the Crown and the court’s obligation to protect the identity of confidential informants, and the court’s obligation to make effective use of limited judicial resources by avoiding unnecessary and time-consuming proceedings. In R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1465, Sopinka J. articulated an approach which balanced those competing interests.

[32] In R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, the Court confirmed the Garofoli approach in the context of a Charter challenge. Charron J. emphasized the relatively narrow focus of the Garofoli inquiry, at para. 40:

[T]he Garofoli leave requirement is simply a means of weeding out unnecessary proceedings on the basis that they are unlikely to assist in the determination of the relevant issues. The reason that the test will generally leave just a narrow window for cross-examination is not because the test is onerous – it is because there is just a narrow basis upon which an authorization can be set aside. Hence, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focussed on the question to be determined on a Garofoli review – whether there is a basis upon which the authorizing judge could grant the order. If the proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted. However, if the proposed cross-examination falls within the narrow confines of this review, it is not necessary for the defence to go further and demonstrate that the cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization. Such a strict standard was rejected in Garofoli. A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown. [Emphasis added.]

[34] Cross-examination of the affiant will be allowed when the trial judge is satisfied that there is a reasonable likelihood that the proposed cross-examination will assist in determining whether the necessary grounds existed for the issuance of the search warrant. The focus is on the reasonableness and honesty of the affiant’s belief as to the existence of the requisite grounds, and not on the ultimate accuracy of the information relied on by the affiant: Pires, at paras. 41-43; Sadikov, at para. 40. (Underline added)

[35] Motions to cross-examine affiants most often target specific, factual allegations in the ITO that are central to the existence of the reasonable grounds necessary to justify the granting of the warrant. The accused on the motion to cross-examine, either by reference to other parts of the ITO, or extraneous evidence (often material provided by Crown disclosure) attempts to demonstrate that there is a reasonable likelihood that cross-examination of the affiant on certain parts of the ITO will “undermine” the grounds upon which the warrant was granted: see Pires, at paras. 68-69. Cross-examination may “undermine” the grounds set out in the ITO either by contradicting information in the ITO or by adding information that was not in the ITO. In either case, the honesty and/or reasonableness of the affiant’s grounds for believing that the warrant should issue are the ultimate target of the cross-examination. (Underline added)

[36] Sometimes the motion to cross-examine the affiant is made on a wider basis. An accused may argue that the ITO contains statements that are deliberately misleading and sufficiently significant to place the credibility of the entire ITO in issue. Pires, at para. 63, holds that if there is a reasonable basis to believe that an affiant has deliberately attempted to mislead the authorizing judge in some part of the ITO, cross-examination should generally be allowed. (Underline added)

[52] In the end however, what I may or may not have done had the motion to cross-examine been before me is not determinative of the appeal. A trial judge’s ruling permitting or refusing cross-examination of the affiant is an exercise of the trial judge’s discretion. This court must defer to the trial judge absent demonstration that the discretion was not exercised judicially: Pires, at paras. 46-47.

[14] The specific areas that leave was sought to cross-examine the affiant on were set out as follows:

While D.C. Campbell’s ITO is lengthy (totaling 101 pages plus appendices), his references to the Applicant are discreet and confined mainly to paragraphs 156 and 194. Those references include the statements:

a. “The surveillance team…observed an exchange of bags between HUSSAIN and PHAN” – paragraph 156(e);

b. “After a period of time the driver [PHAN] was observed returning to the Mercedes and leaving the area” – paragraph 156(g);

c. “The surveillance team was able to positively identify this male, through a MTO photograph, as Thanh Tung PHAN” – paragraph 156(g); and

d. “HUSSAIN and THANH [PHAN] were observed during surveillance conducting a clandestine meeting that lasted a short duration of time. During this meeting, HUSSAIN and PHAN conducted a bag exchange” – paragraph 194.

[15] On November 9, 2016, I granted leave to cross-examine the affiant restricted to the following issues:

1. The basis for his sworn belief that Phan was present in the area of Cumberland Avenue in Toronto in the early evening of December 19, 2013;

2. The basis for his sworn belief that at that time and place Phan was involved in an illicit drug transaction with Shawn Hussain; and

3. Cross-examination may also explore further observations of Phan and his GLK on December 19, 2013.

[16] The applicant was entitled to explore those issues in cross-examination to establish bad faith or negligence by the affiant. I declined leave to cross-examine any of the sub-affiants since the issues could be fully and fairly canvassed through the affiant.

Further Disclosure

[17] The applicant also sought disclosure of further items before the hearing proceeded. These included notes related to the observations of Shawn Hussain at locations unconnected to the applicant.

[18] An accused has a right to disclosure of all relevant information in the possession of the Crown. However, relevance is a “context-sensitive concept” and must be determined in light of the nature of a Garofoli review: see R. v. Ahmed, [2012] O.J. No. 6643, 2012 ONSC 4893 at para. 17. In R. v. McKenzie, 2016 ONSC 242 at paras. 14, 15, 21 and 28, Justice Campbell stated that the focus must remain on the issues engaged in the evidentiary hearing. Once the disclosure request reaches beyond materials placed before the authorizing justice and the contents of the investigative file, presumption of relevance is attenuated. I would add that in a case where there are numerous targets in the ITO, the disclosure issues on the Garofoli hearing should focus directly on the information related specifically to the applicant and not the investigation at large.

[19] I declined to order disclosure of notes related to observations of Hussain at times and locations unrelated to the applicant based on lack of relevance to the Garofoli hearing. The remaining disclosure issues were resolved by counsel without my intervention.

The ITO

[20] The paragraphs that refer to Phan in the ITO are as follows:

33. Through the surveillance conducted on NOSEWORTHY a close associate has been identified, being Shawn HUSSAIN. HUSSAIN has been observed with NOSEWORTHY on a number of occasions and appears to be working in concert with NOSEWORTHY for the common purpose of drug trafficking. Through further surveillance conducted Arif JHUMAN and Thanh PHAN have been identified as associates of HUSSAIN. JHUMAN and PHAN have both been observed meeting with HUSSAIN and being involved in activity which I believe to be consistent with drug trafficking. I believe that association between HUSSAIN with PHAN and JHUMAN is for the sole purpose of drug trafficking and that they are all part of this drug trafficking network.

34. The objective of this investigation is to dismantle a drug trafficking network headed by Sean NOSEWORTHY and to identify other members of this network, including the suppliers of the drugs. I believe that this network includes, but is not limited to Sean NOSEWORTHY, Christopher BELL, Jerome DORSEY, Shawn HUSSAIN, Arif JHUMAN, and Thanh PHAN. If the requested Authorization and related Orders are granted, police investigators will use the Authorization and related Orders, along with traditional investigative techniques, to investigate the subjects of this drug trafficking scheme. We intend to use the intercepted communications to obtain the best possible information to identify and prosecute the suppliers and distributors of this drug network. The specific goals investigators aim to achieve are:

(f) To identify other persons involved in this criminal and drug network, including the hierarchy and suppliers, and to then dismantle this network.

(g) To gather enough evidence to enable the crown to prosecute everyone involved in this criminal and drug network successfully.

(h) Locate and seize proceeds of crime and offence related property.

156. On December 19, 2013, members of the Durham Regional Police Gun and Gang Enforcement Unit conducted surveillance. On this date Detective Constable HILBORN was the central note taker. I have spoken to HILBORN and I have read his notes. The following is a summary of the relevant observations:

a) With the use of a tracking device on Shawn HUSSAIN’S Toyota Camry the surveillance team located HUSSAIN in the area of Dufferin Road, Toronto.

b) Surveillance was conducted on HUSSAIN and after a short meeting with a person in the area of 345 Dufferin Road he travelled to the area of Cumberland Avenue in Toronto and parked on the side of the street.

c) HUSSAIN was observed exiting his vehicle with a back pack. He was observed walking up and down the street on a cell phone.

d) HUSSAIN was then observed entering the passenger seat of a Mercedes SUV bearing Ontario license plate BSRY199.

On December 23, 2013 I conducted a PARIS check on the motor vehicle bearing Ontario license plate BSRY199. As a result of this check I learned that this license plate is attached to a black 2013 Mercedes GK3. The registered owner of this vehicle is Thanh Tung PHAN, born September 15, 1986. PHAN is proposed as a known person of this investigation, located in paragraph 3(a).

On December 23, 2013, I also conducted a Criminal Records check on Thanh Tung PHAN, born September 15, 1986. Through this check 1 learned that PHAN does not have a criminal record. However, PHAN does have an entry for historical offences that were withdrawn. This entry shows that PHAN has variations in his name, being Tung Thanh PHAN, Tung Phan THANH and Thanh Tung PHAN.

e) After approximately 20 seconds the surveillance team observed HUSSAIN exit the Mercedes now carrying a different and larger black bag. HUSSAIN was observed walking back to his vehicle. Surveillance was then maintained on the black Mercedes.

I believe that this meeting between HUSSAIN and PHAN was indicative of a drug transaction. This appeared to be a prearranged meeting that lasted for a very short period of time. The surveillance team also observed an exchange of bags between HUSSAIN and PHAN. 1 have read an investigative report authored by a member of the surveillance team, Detective Constable CAPENER. CAPENER described HUSSAIN entering the vehicle with a back pack, that appeared flat, and then leaving with a larger bag, that appeared full. Based on the description of the events observed by the surveillance team and my own experience I believe that PHAN was supplying drugs to HUSSAIN on this date. HUSSAIN appeared to be waiting for PHAN in a designated area, HUSSAIN then got into PHAN’S vehicle; I believe that this shows that PHAN was the person controlling the meet location and time. HUSSAIN was observed entering the vehicle with a bag, that appeared flat, and then exiting with another bag which was larger and full. I believe that the description of the bags is consistent with a bag with money being exchanged for a bag of drugs. I have personally observed similar meetings during other investigations. HUSSAIN has also been observed on a number of occasions, through surveillance and security videos to be in possession of a back pack. HUSSAIN has been observed meeting with Sean NOSEWORTHY and Christopher BELL while in possession of this back pack. I believe that HUSSAIN uses this back pack as a means to transport items that relate to drug trafficking; being either the drugs themselves or money to facilitate the transaction.

f) This vehicle was followed to the area of 100/90 Broadview Avenue, Toronto and parked in the underground parking spot 53.

g) After a period of time the driver was observed returning to the Mercedes and leaving the area. The surveillance team was able to positively identify this male, through a MTO photograph, as Thanh Tung PHAN.

h) PHAN was observed attending the area of Hamilton Street in Toronto. At this location PHAN was observed exiting his vehicle with a blue reusable Wal-Mart bag. PHAN was observed walking away from his vehicle and then he was misplaced.

i) PHAN was then observed one (1) minute later returning to his vehicle, however, with nothing in hand. The surveillance team did not make any direct observations of what happened with the bag or if PHAN met with anyone. However, I believe that this activity is indicative of drug trafficking. I do not know what happened with the bag, but I do know that PHAN left the bag somewhere and possibly with someone. I believe that this type of activity is indicative of drug trafficking.

j) From this location PHAN returned to 100/90 Broadview Avenue and parked in the underground parking spot 53 again.

k) PHAN was observed after a period of time entering his vehicle. PHAN was observed placing something in the backseat.

l) PHAN was followed to the area of 183/185 Young Street, Brantford, CO-OP buildings. PHAN was observed pulling in to the parking lot. The surveillance team was unable to make observations in the parking lot without the risk of being compromised. After approximately twenty (20) minutes PHAN was observed exiting the parking lot and then attending 36 Hayhurst, Brantford. Surveillance was discontinued at this location.

164. On December 30, 2013 I was provided with information from Detective STEINWALL of the Toronto Police Service. I was advised that Thanh Tung PHAN is currently being investigated by the Toronto Police Service in a project dubbed “RX” that focuses on alleged street gang activities relating to homicides and shootings. PHAN is believed to be a victim of one such shooting and connected to a street gang known as the Chin Pak Gang. I was advised that PHAN is being proposed as one of the targets of this investigation. However, that investigation is completely separate from the present one and focuses instead on targets who are completely unrelated to those that are the focus of the present investigation. I asked STEINWALL for all of the information that they had on PHAN, and the only information that he provided me from their investigation which is pertinent to this investigation was three police reports, which I have read. These reports contain information about PHAN’S current address and phone numbers, the pertinent information from these reports are as follows:

a. On September 19, 2012, Constable TAMAS of the Toronto Police Service authored a Police report. This report details a traffic stop conducted on Tung Thanh PHAN, born September 9, 1986. During this traffic stop PHAN’S phone number was recorded as being 647 308-5808.

In this report PHAN’S first name and second name were reversed. I am aware through a previous computer check conducted on PHAN that this is one of the variations of his name that he uses.

b. On June 21, 2013, Constable HAYRE of the Toronto Police Service authored a Police report. This report details an incident involving the brother of Thanh PHAN. In the report PHAN’S address is listed as 90 Broadview Avenue, Unit 824, Toronto, Ontario. PHAN’S phone numbers are also recorded as being 416-461-7236 and 647 308-5808.

c. On October 25, 2013, Constable PIERCEY of the York Regional Police Service authored a Police report. This report details an incident involving Thanh Tung PHAN at 90 Broadview Avenue, Toronto. The report outlines an incident that PHAN had with another tenant of the building. In the report PHAN’S address is listed at 90 Broadview Avenue, Unit 824, Toronto. The report also has PHAN’S phone number being listed as 647-308-5808. The report also mentions that PHAN parks in spot 53 in the underground parking for the building.

Based on these reports and the surveillance previously conducted on PHAN I believe that PHAN does reside at 90 Broadview Avenue, Unit 824, Toronto. PHAN was observed during surveillance entering the secured residential underground parking for 90 Broadview Avenue and parking in spot 53. This information is further supported in the York Regional Police report and it was learned that this spot is PHAN’s assigned parking spot.

165. On December 30, 2013 I reviewed a subscriber check conducted on phone number 416-461-7236. Through this check I learned that it is a residential line through Bell Canada. This phone number is for 90 Broadview Avenue, Unit 824, Toronto. Tung PHAN is listed as the customer.

I believe that this check further confirms that 90 Broadview Avenue, Unit 824, Toronto, is the residence of Thanh Tung PHAN.

166. On December 31, 2013, I reviewed a subscriber check conducted on phone number 647-308-5808. Through this check I learned that this is a cellular phone registered to Tung PHAN with the address of 605 Whiteside Place, Apartment 708, Toronto.

Based on the subscriber check and the police reports I believe that this is the cell phone used by Thanh Tung PHAN. I believe that the address of 605 Whiteside Place, Toronto, is a historical address for PHAN. I know that PHAN has this address registered with the MTO, however, based on the surveillance and the recent police reports I believe that PHAN’S address is 90 Broadview Avenue, Unit 824, Toronto.

167. On December 31, 2013, I reviewed a Land Registry check for the address of 90 Broadview Avenue, Unit 824, Toronto, Ontario. Through this check I learned that this residence is owned by Tung PHAN. This residence was purchased on June 6, 2013.

I am aware that Thanh Tung PHAN has at least three different variations for his name, one being Tung PHAN. I believe that this Land Registry check further confirms my belief that Thanh Tung PHAN resides at 90 Broadview Avenue, Unit 824, Toronto.

194. Thanh Tung Phan has been identified as an associate of Shawn Hussain. This has been established through surveillance. Hussain and Thanh were observed during surveillance conducting a clandestine meeting that lasted for a short duration of time. During this meeting Hussain and Phan conducted a bag exchange. I believe that this meeting was indicative of a drug transaction. I also believe that Phan supplied drugs to Hussain during this meeting. Through further surveillance conducted on Phan he was observed conducting activity which I believe was indicative of drug trafficking.

195. Through surveillance, a Land Registry check, subscriber check information and through Toronto Police Service and York Regional Police Service reports it has been established that this is the residence of Thanh Tung PHAN.

196. PHAN has been observed attending this location after obtaining a bag from Shawn HUSSAIN. He was also observed leaving this location with another bag and then conducting what I believed to be a “bag drop”.

197. I believe, on reasonable grounds, that intercepting private communications at this residence may assist this investigation. The private communications from this residence may assist in relation to information about where PHAN is located, who he is meeting or what he is doing. It may also assist in gathering evidence in relation to PHAN and what he does at and in the residence. It is also reasonable to believe that PHAN may be in contact with people at this residence or he may make calls from this residence which may assist in gathering new phone numbers for the known persons. I believe that the private communications at this location may relate to his involvement with illicit drug trafficking and afford evidence of the offences listed in the Draft Order.

198. Thanh PHAN is the registered owner of this vehicle. Also through surveillance PHAN has been observed using this vehicle as a means of transportation. I also believe that PHAN has been observed using this vehicle as a means of transportation in order to facilitate drug transactions. During surveillance PHAN has been observed meeting with HUSSAIN. During the meeting HUSSAIN entered this vehicle and conducted a bag exchange with PHAN.

199. I believe it is reasonable to believe that conversations about the offences under investigation will take place in this motor vehicle. I also believe, on reasonable grounds, that intercepting the private communications in this vehicle may assist this investigation.

The Physical Surveillance Report

[21] There were five officers involved in the surveillance team on December 19, 2013. Detective Constable Hilborn was the central note taker. A copy of his contemporaneous notes and the subsequent Physical Surveillance Report of Hilborn were filed on this application.

[22] In a briefing shortly after 14:00, the surveillance team set out to monitor the activity of Hussain. The Report refers to the applicant in the synopsis as follows:

Thanh PHAN DOB: 15 Sep 1986 90-100 90-100 Broadview BLVD Toronto

2013 Mercedes Benz BSRY199

Thanh PHAN did a bag exchange (Knapsack) with Shawn HUSSAIN at Cumberland Ave in Toronto. Members of the GGEU followed PHAN back to his condo at Broadview.

Later in the evening on Dec 19, PHAN was observed leaving his building and drove to an area of Toronto. He left his vehicle on foot with a bag and was temporarily misplaced. He returned a short time later and no bag.

He is currently under investigation with Toronto Organized Crime Unit. He is a member of the Chin Pak Street Gang. This is a violent group who are responsible for a number of murders in the City of Toronto.

[23] The relevant portions of the notes and observations of the various officers related to the applicant and his vehicle based on the Report can be summarized as follows:

Officer Hilborn – At 17:35 Hussain stops his vehicle on the south side of Cumberland between Bay and Yonge. He gets out of his vehicle. He “grabs a large school bag (black)” and begins to walk east on the south side. He then changes direction and walks back west passing his own vehicle.

Officer Capener – At 17:37 Hussain was texting on his phone. He walks up to a Mercedes SUV (BSRY199) and gets into the front passenger seat. Twenty seconds later, Hussain gets out of that vehicle carrying a “larger black bag” (bag exchange) and walks back in the direction of his vehicle. The applicant is the registered owner of the vehicle that Hussain entered and then exited.

Officer Capener – at 17:37 the team is to stay with the Mercedes registered to the applicant.

Officer Gill – By 17:59 that vehicle is followed to a parking garage on Broadview south of Queen and parks in spot #53. It appears to be 100 or 90 Broadview Avenue, Toronto. (The applicant resided at 90 Broadview Avenue)

Officer Gill – At 19:59 the applicant’s vehicle is mobile.

Officer Hilborn – At 20:03 that vehicle stops in front of a house on Hamilton Street in Toronto.

Officer Gill – An Asian male gets out of the car. He is wearing a grey, puffy jacket and is carrying a blue reusable Walmart bag. He matches a Ministry of Transportation photo of the applicant. Surveillance briefly loses sight of him.

Officer Hilborn – At 20:04 he observed an Asian male wearing a grey, puffy jacket with a hoody. He matches the photo of the registered owner of the car. He walks south on Hamilton Street, no longer with a blue bag in his hand. He walks back to his car. The surveillance officer assumes he must have dropped the bag off at one of the houses on Hamilton Street.

The Team – At 20:05 they lose sight of the car.

Officer Hurst – At 21:30 the car is observed parked at 90/100 Broadview Avenue.

Officer Hilborn – At 22:05 Phan is observed getting into the car and putting something in the back seat.

Officer Hurst – At 22:07 the car is followed into an Esso gas station. “100% Phan is driving” (Officer Capener).

The Team – 22:10 – 23:12 – Phan’s car is followed to Young Street in Brantford.

Officer Hilborn – At 23:17 the car is observed to pull into a parking lot at 183/185 Young Street.

Officer Gill – At 23:36 the car is mobile and proceeds to an address on Hayhurst.

Officer Capener – At 23:43 the car pulls into a parking spot at 36 Hayhurst. At 23:47 Phan is out of the car and walks to 36 Hayhurst.

Surveillance was discontinued shortly thereafter.

Cross-Examination of the Affiant

[24] The affiant testified to the following in cross-examination:

1. There were no misstatements in the ITO. He specifically maintained his belief based on information from other officers that Phan was observed in the bag exchange drug transaction with Hussain on Cumberland Avenue.

2. He would not ignore inconsistent information in preparing an ITO and agreed it would be a major breach of his duty as an affiant to do so.

3. Paragraph 156(g) of the ITO refers to a positive identification of Phan by reference to a Ministry of Transportation (MTO) photograph returning to his vehicle in the underground parking area of his residence and leaving the area. He agreed that there is no reference to that in the report prepared by Officer Capener, nor in the summary prepared by Officer Hilborn. He testified it “looked like something I theorized on my own.” He agreed this was an assertion of fact that was not true. He wrote that paragraph “to try and make it easier to read for the issuing justice.”

4. He agreed that in several other parts of the extensive ITO he referred to corroboration of observations by means of photos and video. He agreed he did not follow up to see if there was photo or video evidence related to Phan at Cumberland Avenue or the underground parking area at Phan’s residence.

5. He was not aware whether there was video surveillance in the underground parking area at Phan’s residence. Counsel referred him to para. 164(c) of the ITO that refers to a police report authored by Constable Pierce of York Regional Police Service dated October 25, 2013. A copy of that report was filed on this hearing. It related to a verbal conflict between Phan and another tenant that occurred on May 30, 2013. The report of Constable Pierce refers to him viewing surveillance video of the underground parking area including Phan’s assigned spot. In cross-examination, the affiant said he had seen the report and forgot that it had referred to video surveillance.

6. He agreed with the suggestion that some drug dealers use cars that are not registered in their names. He disagreed with the suggestion that only less sophisticated drug dealers would use their own cars.

7. He agreed that the two phone numbers related to Phan did not appear in contact with other targets of the drug investigation.

8. He agreed that none of the numerous other targets were tracked to Phan’s address.

9. Paragraph 156(e) refers to Hussain using this backpack. The affiant testified that he did not intend to say that a particular backpack was carried by Hussain at all times but rather that it was simply a backpack.

SCOPE OF THE GAROFOLI APPLICATION

[25] In World Bank Group v. Wallace, 2016 SCC 15, the Supreme Court addressed the narrow scope of such applications as follows at paras. 119-123 inclusive:

[119] A Garofoli application does not determine whether the allegations underlying the wiretap application are ultimately true — a matter to be decided at trial — but rather whether the affiant had “a reasonable belief in the existence of the requisite statutory grounds” (Pires, at para. 41). What matters is what the affiant knew or ought to have known at the time the affidavit in support of the wiretap authorization was sworn. As this Court stated in Pires, albeit in the context of an application to cross-examine the affiant:

. . . cross-examination that can do no more than show that some of the information relied upon by the affiant is false is not likely to be useful unless it can also support the inference that the affiant knew or ought to have known that it was false. We must not lose sight of the fact that the wiretap authorization is an investigatory tool. [para. 41]

When an accused seeks evidence in support of a Garofoli application by way of cross-examination, this narrow test must be kept in mind. As we will explain, the same test applies when production of third party records is sought.

[120] As a general rule, there are two ways to challenge a wiretap authorization: first, that the record before the authorizing judge was insufficient to make out the statutory preconditions; second, that the record did not accurately reflect what the affiant knew or ought to have known, and that if it had, the authorization could not have issued (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at paras. 50-54; Pires, at para. 41; see also R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, on the exclusion of unconstitutionally obtained information from warrant applications). The challenge here is brought on the second basis, sometimes referred to as a subfacial challenge.

[121] In view of the fact that a subfacial challenge hinges on what the affiant knew or ought to have known at the time the affidavit was sworn, the accuracy of the affidavit is tested against the affiant’s reasonable belief at that time. In discussing a subfacial challenge to an information to obtain a search warrant, Smart J. of the British Columbia Supreme Court put the matter succinctly as follows:

During this review, if the applicant establishes that the affiant knew or should have known that evidence was false, inaccurate or misleading, that evidence should be excised from the [information to obtain] when determining whether the warrant was lawfully issued. Similarly, if the defence establishes that there was additional evidence the affiant knew or should have known and included in the [information to obtain] in order to make full, fair and frank disclosure, that evidence may be added when determining whether the warrant was lawfully issued.

(R. v. Sipes, 2009 BCSC 612, at para. 41 ())

[122] Smart J.’s comments apply equally to a Garofoli application (see R. v. McKinnon, 2013 BCSC 2212, at para. 12 (); see also Grant, at p. 251; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 40-42). They accord with this Court’s observation in Pires that an error or omission is not relevant on a Garofoli application if the affiant could not reasonably have known of it (para. 41). Testing the affidavit against the ultimate truth rather than the affiant’s reasonable belief would turn a Garofoli hearing into a trial of every allegation in the affidavit, something this Court has long sought to prevent (Pires, at para. 30; see also R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 21).

[123] When assessing a subfacial challenge, it is important to note that affiants may not ignore signs that other officers may be misleading them or omitting material information. However, if there is no indication that anything is amiss, they do not need to conduct their own investigation (R. v. Ahmed, 2012 ONSC 4893, [2012] O.J. No. 6643 (QL), at para. 47; see also Pires, at para. 41).

[26] The reviewing judge does not make a de novo assessment of the ITO’s contents. The issue is whether those contents provide a basis upon which the issuing justice, acting judicially, could find reasonable and probable grounds to believe that an offence has been committed and that evidence of the offence would be found at the specified place. R. v. Morelli, 2010 SCC 8 at para. 40, Shivrattan and Silvera, at para. 25. That count went on to distinguish between facial and sub-facial challenges to the validity of warrants at para. 26:

26 Challenges to the validity of a warrant are described as facial or sub-facial. On a facial challenge, counsel argues that the ITO, on its face, does not provide a basis upon which the issuing justice, acting judicially, could issue the warrant. A sub-facial validity challenge involves placing material before the reviewing judge that was not before the issuing justice. On a sub-facial challenge, counsel argues that the material placed before the reviewing judge should result in the excision of parts of the ITO that are shown to be misleading or inaccurate. The warrant’s validity must then be determined by reference to what remains in the ITO. On a sub-facial challenge, counsel may also argue that the augmented record placed before the reviewing judge demonstrates that the affiant deliberately, or at least recklessly, misled the issuing judge, rendering the entire ITO unreliable as a basis upon which to issue a warrant: see Morelli, at paras. 40-41; R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at paras. 37-38; Crevier, at para. 74; and R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 57.

[27] The Supreme Court of Canada has clarified that where the applicant demonstrates material non-disclosure and/or misleading or false information in the ITO, there is no automatic vitiation of the authorization. Errors in the information presented to the authorizing judge, whether advertent or even fraudulent, are only factors to be considered in deciding whether to set aside the authorization: R. v. Bisson, 1994 CanLII 46 (SCC), [1994] 3 S.C.R. 1097. The primary focus on review is whether the authorizing judge could have been satisfied that the order should issue: R. v. Morris (1998), 1998 NSCA 229, 134 CCC (3d) 539 (NSCA).

[28] In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued: R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 51.

[29] Only erroneous information needs to be excluded from consideration. Provided it is not part of a deliberate attempt to mislead the authorizing judge, it may be amplified by evidence on review showing the true facts: Araujo, at paras. 56 and 58.

[30] In R. v. Paryniuk, 2017 ONCA 87 at paras. 45-47 inclusive, Justice Watt confirms the need for a contextual analysis on such applications:

[45] The assessment required by Garofoli is contextual. What is involved is an analysis to determine whether there remains sufficient reliable information upon which the search authority could be grounded. This approach appropriately balances the need for judicial finality and the need to protect systems of pre-authorization: Araujo, at para. 54. In this analysis, facts originally omitted are also considered: Morelli, at para. 60.

[46] Essential features of the Garofoli application are excision and amplification. Erroneous information is excised from the ITO and disregarded in determining whether the essential evidentiary predicate remains: Araujo, at para. 58; Campbell, at para. 14; Morelli, at para. 41. But errors made in good faith may be corrected by amplification through the introduction of evidence that was available when the ITO was prepared: Morelli, at paras. 41-43.

[47] A final point concerns the standard against which alleged errors or omissions in the ITO are tested. The affiant's assertions are tested against the affiant's reasonable belief at the time the ITO was composed, not the ultimate truth of the facts stated: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 122.

ANALYSIS

[31] In cross-examination of the affiant and a thorough review of the information relied on by the affiant, counsel for the applicant has exposed inaccuracies, informational gaps and failures to follow-up or seek corroboration of important issues. The naming of the applicant hinged on the narrow factual issue as to whether there was a reasonable basis to believe that he was involved in a bag exchange drug deal with Shawn Hussain on December 19, 2013.

[32] The Crown concedes that the assertion that the applicant was actually seen interacting with Hussain was inaccurate. That assertion must be excised on this review. The critical issues are the following:

(1) Did the affiant reasonably and honestly believe that a bag exchange occurred with Hussain? and

(2) Was there a circumstantial basis upon which the authorizing justice could find that the applicant was involved in the bag exchange?

[33] The presence of the applicant at the bag exchange with Hussain can be demonstrated by circumstantial evidence as well as direct evidence. Juries are instructed that they may convict based on circumstantial evidence if it is the only reasonable inference to be drawn: see R. v. Villaroman, 2016 SCC 33. The standard for naming a party on a part VI application is far less than a balance of probabilities, let alone beyond a reasonable doubt.

[34] The starting point is the status of Hussain in the drug investigation. He was a major target and large portions of the ITO relate to him and his activities. The applicant does not dispute that there was a significant amount of direct and circumstantial information that Hussain was a big league drug dealer. Counsel have confirmed that as a result of Project Wheeler Hussain was convicted of various criminal and drug offences and received a substantial penitentiary sentence. Based on the overwhelming evidence implicating Hussain, it would be reasonable for police to view a bag exchange by him with anyone in suspicious circumstances as a drug transaction. The furtive manner in which Hussain went into a vehicle on Cumberland Avenue with a bag and emerged shortly thereafter with a bag (or a different bag) was reasonably viewed as a drug transaction.

[35] Certain important information regarding Phan was not contentious on this hearing:

1. Phan was the registered owner of the GLK parked on Cumberland that Hussain entered and left so quickly with a bag.

2. Phan resided at 90 Broadview Avenue, apartment 824.

3. The assigned parking spot for Phan in the underground parking garage was #53.

4. The GLK was followed by surveillance officers after the incident on Cumberland until it parked in the parking spot reserved for Phan at 90 Broadview Avenue. There is no mention in the ITO that Phan was observed leaving his vehicle after it parked. The next reference is to Phan returning to his vehicle. That is not based on any notes or reports from the surveillance team.

5. Later that day the Phan vehicle was followed by police to Hamilton Street in Toronto. Phan was observed to exit his vehicle carrying a blue bag. He walked away from his vehicle and the police lost sight of him. They observed him shortly thereafter walking to his vehicle with nothing in hand. The vehicle was then driven back to 90 Broadview and again parked in Phan’s assigned spot. There is no mention in the ITO that Phan left his vehicle.

6. Later that day Phan was observed to get into his vehicle and put something in the back seat. The vehicle was followed to a location in Brantford. Surveillance was discontinued shortly thereafter.

[36] There was circumstantial evidence that Phan was the only person operating his vehicle that day. The affiant believed then and now that it was Phan in the GLK on Cumberland. My impression is that he reached that conclusion based on the totality of information provided to him and inferences that he drew. Even without a specific and positive observation of Phan on Cumberland Avenue, the authorizing justice could reasonably be satisfied that he was there in all the circumstances. The affiant should not have deposed that Phan was observed in a bag exchange with Hussain. However, his conclusion that he was there was nonetheless reasonable.

[37] Notwithstanding the inaccuracies, gaps and shortcomings in the ITO, the following events on December 19, 2013 were adequately sourced in the ITO:

1. Hussain entered Phan’s vehicle with a bag at Cumberland and exited very shortly thereafter with a bag;

2. Phan’s vehicle was driven from Cumberland and parked at the parking spot reserved for Phan at his residence;

3. Phan was observed later in the day getting into and out of his car on more than one occasion; and

4. Nobody else was observed getting into or out of his car that day.

[38] Based on this information, the authorizing justice could reasonably have found that it was Phan in his car on Cumberland Avenue when the drug dealer Hussain entered with a bag and quickly left. If the affiant had deposed that he concluded that the applicant was there, that would be a proper basis for naming the applicant. I am satisfied that the affiant honestly and reasonably believed that the applicant was at the bag exchange.

THE TRACKING WARRANT

[39] The grounds to uphold the part VI authorization also apply to the tracking device issued pursuant to s. 492.1 of the Criminal Code.

VIDEO INSTALLATION IN THE HALLWAY OF THE CONDOMINIUM

[40] The Crown concedes that this was not specifically authorized by the judicial orders dated January 14, 2014. Prior to R. v. White, [2015] O.J. No. 3563, 2015 ONCA 508, there were decisions of trial courts that rejected reasonable expectation of privacy claims involving common areas of multi-unit buildings: see R. v. Piasentini, [2000] O.J. No. 3319 (S.C.J.), R. v. Simpson, [2005] O.J. No. 5056 (S.C.J.), rev’d on other grounds, 2007 ONCA 793. The White decision clarifies that there is a reasonable expectation of privacy for a tenant or owner related to common areas of such a building. That privacy interest is obviously less than that related to the interior of a living unit. The camera in this instance did not even capture the front of the applicant’s door, let alone the interior. This unauthorized search is a violation of s. 8 of the Charter. However, application of the principles in R. v. Grant, 2009 SCC 32, 2009 S.C.J. No. 32 militate against exclusion of this evidence based on s. 24(2) of the Charter.

[41] There was no suggestion of bad faith by the police and the installation was in accord with the current judicial pronouncements. If an order pursuant to s. 487.01 of the Criminal Code had been sought along with the other orders on January 14, 2014, it would very likely have been granted. The impact on the applicant’s Charter-protected interests was not significant. On a charge of first degree murder there is a significant societal interest in a trial on the merits, including evidence of the conduct of the applicant after the shooting of Peter Nguyen.

THE SEARCH WARRANTS OF FEBRUARY 13, 2014 AND APRIL 10, 2014

[42] These warrants were based significantly on information and evidence obtained pursuant to the Part VI authorization and the tracking warrants. Since I have upheld those orders, the challenges to the two search warrants pursuant to s.8 of the Charter are also dismissed.

[43] Result: The applications to exclude all of the above evidence are dismissed.

B. P. O’Marra J.

Released: February 13, 2017

CITATION: R. v. Phan, 2017 ONSC 978

COURT FILE NO.: CR-15-50000659-0000

DATE: 20170213

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Respondent

– and –

THANH TUNG PHAN

Applicant

GAROFOLI RULINGS

B. P. O’Marra J.

Released: February 13, 2017