COURT FILE NO.: CR-11-8626-00

DATE: 20180703

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BRETT DUNSTAN

Defendant

COUNSEL:

Mr. J. Wakely and Ms. A. Pashuk, for the Crown

Mr. R. Rusonik, for the Defendant

HEARD: February 12, 15, 16, 20, March 12, 13, April 3, May 16, 17, 18, 2018

REASONS FOR JUDGMENT ON CHARTER SECTION 8 APPLICATION

FUERST RSJ.

Introduction

[1] In the early morning hours of September 20, 2011, someone broke into the house at 76 Red Ash Drive in Markham. An anonymous telephone call to York Regional Police led officers to go to the house. They found the front door damaged and ajar.

[2] The officers entered the house to check for suspects and occupants who might need assistance. No-one was in the house. But, the officers discovered drugs and drug paraphernalia in plain view.

[3] The officers left the house and sealed it.

[4] Officers from a York Regional Police Property Crimes Unit became involved and obtained a search warrant for the house. They found and seized large quantities of cocaine, psilocybin, MDMA and marijuana, as well as a large amount of cash.

[5] Brett Dunstan is charged with possession of various controlled substances for the purpose of trafficking, and possession of the proceeds of crime.

[6] Mr. Dunstan contends that Detective Cyril Gillis and/or his team staged the break-in and that Detective Gillis made the anonymous call in order to trigger the warrantless entry of the house and discovery of the drugs and money, in breach of s. 8 of the Charter of Rights and Freedoms. Mr. Dunstan seeks the exclusion of the drugs and cash seized.

The Background

(a) Overview of Project Gladiator

[7] In the spring of 2011, the Drug Enforcement Unit (DEU) of Durham Regional Police (DRP) began a drug investigation called Project Gladiator. Initially, the primary targets of the investigation were Sung Chang, Alireza Kharizfar, and James Liu.

[8] The DEU was overseen by Detective Sergeant (now Acting Inspector) Gerald Moote. The lead investigators of Project Gladiator were Detective (now Inspector) Cyril Gillis and Detective (now Inspector) Craig Hudson. The core investigative team consisted of an additional sixteen members of the DEU. The team received occasional assistance from DRP’s Gun and Gang Enforcement Unit, its Surveillance Unit, its Intelligence Operations Unit, and its Technical Services Unit.

[9] Initially, the police relied on investigative techniques that included physical surveillance, dialled number recorders, and tracking devices.

[10] On July 24, 2011, Detective Constable (now Detective) Paul Mackintosh swore an affidavit in support of an omnibus application for a wiretap authorization and related orders. The Principal Known Persons listed in the draft authorization submitted with the application were Sung Chang, Alireza Kharizfar, James Liu, and Tam Trang Do. The application was submitted to the Superior Court of Justice that day.

[11] I granted the authorization on July 29, 2011.[^1] It named as the Principal Known Persons the four individuals who were specified as such in the draft authorization.

[12] Later that day, DRP officers began intercepting the communications of those four individuals and their associates, including by means of an audio probe installed during a covert entry of the condominium unit used by Liu.

[13] On that date, Liu discovered a tracking device the police had installed on his vehicle. Police learned of this via the audio probe, from conversation Liu had that day with his associates. He told his associates that he would take a month long break from his drug activity.

[14] As a result, the police scaled back their surveillance activity, but continued to intercept communications of Chang, Kharizfar and Liu. The police became aware of the involvement of other individuals in the drug network, including Bayan Mirian.

[15] On August 16, 2011, Detective Sergeant Moote and Detective Gillis met with members of the York Regional Police (YRP), to discuss making Project Gladiator a joint forces operation of DRP and YRP. The YRP officers present included Detective Nicholas Ibbott of the Drugs and Vice Unit.

[16] Following the meeting, Detective Sergeant Moote prepared a written “Operational Plan and Approvals for a Joint Forces Investigation” (JFO Plan). It was submitted to senior DRP and YRP personnel.

[17] On September 13, 2011, the JFO Plan was signed by DRP Deputy Chief Scott Burns and Superintendent Jim Douglass. On September 20, 2011, it was signed by YRP Superintendent Paul Pedersen, and on September 21, 2011, by YRP Deputy Chief Bruce Herridge.

[18] On September 21, 2011, at 10:35 a.m. Detective Constable Mackintosh swore an affidavit in support of a second wiretap authorization. He then submitted the application to the Superior Court of Justice. The Principal Known Persons listed in the draft authorization were expanded to include another six persons in addition to those named in the first authorization.

[19] I granted the second wiretap authorization on September 23, 2011.

[20] Also on September 23, 2011, Detective Sergeant Moote submitted the JFO Plan to the Criminal Intelligence Service of Canada (CISO). It was approved by CISO on October 5, 2011.

[21] Project Gladiator ended on November 30, 2011. More than 30 people were charged.

(b) Brett Dunstan

[22] On July 21, 2011, DRP officers including Stephanie Finateri conducted surveillance on Liu. They saw Liu come out of a sports complex in Markham, with an unknown male. The men walked into the parking lot together, where Liu got into his vehicle and the unknown male got into a black Jeep Cherokee. They drove out of the parking lot in tandem.

[23] Officers followed Liu to a parking lot off Rouge Bank Drive in Markham at 5:45 p.m., but temporarily lost sight of the black Jeep. At 5:47 p.m. the officers saw the black Jeep driven by the unknown male pull into the parking lot and stop in front of Liu’s parked car. Liu got out of his car and walked to the driver’s door of the Jeep. He removed a clear bag from his pants pocket and handed it to the unknown male through the driver’s door. The unknown male then passed a black knapsack to Liu. The knapsack appeared to be full and weighted down. The men had a brief conversation. Liu then returned to his car and placed the knapsack in the trunk. Liu and the unknown male drove off in their respective vehicles, in different directions.

[24] Officers noted the licence plate number of the black Jeep.

[25] On July 22, 2011, Detective Constable Bart Campbell used that licence plate number to conduct database checks. He then prepared an Investigative Report that identified the unknown male as Brett Dunstan, with an address of 97 Mercer Crescent, Markham. That same day, Detective Constable Campbell prepared a profile sheet with a picture of Mr. Dunstan and some biographical information about him, including the Mercer Crescent address.

[26] July 21, 2011, was the only time during the Project Gladiator investigation that officers observed Mr. Dunstan.

[27] The database checks conducted by Detective Constable Campbell were the only database checks in the Gladiator file conducted in relation to Brett Dunstan or 76 Red Ash Drive, Markham.

[28] On July 29, 2011, during the intercepted conversation in which Liu discussed finding the tracking device, he and his associates speculated about how the police were made aware of his activities. There was mention during the conversation of a number of people, including “Brett”, referring Mr. Dunstan. Liu said, “But fucking Brett, one of Brett’s guys got fucking pinched.” One of Liu’s associates mentioned Brett as one of “the people you send work to”, with which Liu agreed. The term “work” was slang for drugs.

[29] On the afternoon of August 2, 2011, Detective Constable Finateri and other officers were assigned to go to 97 Mercer Crescent. She went there but did not see Mr. Dunstan’s Jeep. She went to the area of Lady Fern and Rouge Bank Drive, from which she had seen the Jeep come on July 21. She drove by 76 Red Ash Drive, and saw Mr. Dunstan’s Jeep parked there.

[30] On August 3, 2011, Detective Constable Davies went to 76 Red Ash Drive. He saw Mr. Dunstan’s Jeep parked in the driveway. He prepared an Investigative Report identifying 76 Red Ash Drive as Mr. Dunstan’s address.

[31] On August 4, 2011, Detective Constable Carter was assigned to go to 76 Red Ash Drive, among other addresses, to note vehicles. He saw Mr. Dunstan’s Jeep in the driveway of the Red Ash address.

[32] There is no indication in the Project Gladiator files that Gladiator investigators attended the area of Red Ash Drive after August 4 and prior to September 21, 2011, or that they conducted any surveillance on Mr. Dunstan during that period.

[33] On September 1, 2011, DRP intercepted a conversation between Liu and another male, in which Liu told the male that “Brett” (referring to Mr. Dunstan) was in the Philippines for a month.

[34] Mr. Dunstan arrived in the Philippines on September 2, 2011. He returned to Canada on September 23, 2011.

[35] Mr. Dunstan was mentioned in only the July 29 and September 1, 2011, intercepted conversations. There is no indication in the Project Gladiator file that he was ever intercepted as a party to any communication.

(c) The Break-In at 76 Red Ash Drive

[36] On September 20, 2011, at 2:13 a.m., a call was made to YRP by an anonymous male. It was made not to 911, but to a YRP non-emergency number. It was answered by the Communications Centre.

[37] The caller said, “Uh, I just saw eight guys run out of a house at 76 Red Ash and look suspicious”. He was asked the city and he replied, “It’s in Markum.” He was asked whether it just happened and he said, “It just happened, like 15 minutes ago.” He was asked where the individuals were. He responded, “I’m not following them. I don’t know. They didn’t look too frienly.” As the operator started to confirm the information, the caller hung up.

[38] The caller used a “block number” feature. Unlike the 911 emergency system, YRP’s non-emergency system cannot override the “block number” feature, or call the caller back if the caller hangs up. The number from which the call was made is unknown.

[39] YRP officers were dispatched to 76 Red Ash Drive. On arrival at 2:20 a.m., they observed that the front door was damaged and ajar. There were pieces of wood from the door’s frame on the ground. The lock bolt was still in the locked position. Although there was an ADT alarm sign beside the steps leading to the front door, no alarm was sounding.

[40] The officers entered the residence to check for suspects and occupants who might need assistance. All the lights were out except one in the basement. They cleared the house by going through each room. The rooms on the main floor and two bedrooms on the second floor appeared to be undisturbed. A spare bedroom on the second floor contained cardboard boxes, one of which was tipped over onto its side. It contained Ziploc bags of psilocybin, as did another box that was open at the top. A freezer in the room was plugged in and functioning, but its door was open and the interior was open. A box in the closet that was open on top contained latex gloves, scissors, a digital scale, a bag of psilocybin and a bag of lidocaine. In the basement there were several garbage bags, one of which was not tied closed and contained Ziploc bags of marijuana, and plastic bins with lids that were not in the sealed position, one of which was observed to contain Ziploc bags of marijuana.

[41] Two vehicles registered to Mr. Dunstan were parked in the garage.

[42] Another police officer drove around the area of 76 Red Ash Drive looking for suspicious persons or signs of the males reported by the caller. He did not see anyone.

[43] All responding officers left the house without taking photographs of video footage. They sealed it, pending an application for a search warrant.

[44] Police contacted Mr. Dunstan’s mother, who was listed as a co-owner of the residence, to notify her of the break and enter. She advised that Mr. Dunstan was out of the country. In a follow-up call by YRP Detective Miguel Torres of 5 District Criminal Investigation Branch (CIB) Property Crimes Unit, Mr. Dunstan’s mother advised that her son was the owner of the house, that he lived by himself, and that he left the country a week or a week and a half earlier for the Philippines.

[45] That afternoon, a police officer took photographs of boot prints that were left on the front door of the residence. YRP obtained and executed a search warrant at the house. They located and seized drugs including 4.7 kilograms of cocaine in the kitchen, approximately 4 kilograms of psilocybin in the spare bedroom, 43 pounds of marijuana in the basement, drug trafficking paraphernalia, a debt list, and over $100,000 in Canadian and U.S. cash.

(d) Communications Between DRP and YRP About the Break-In

[46] On the morning of September 21, 2011, YRP Detective Torres tasked David Tomlin, a YRP Criminal Intelligence Analyst, with making inquiries about Mr. Dunstan. Mr. Tomlin emailed Detective Constable Scott Robertson, who was a friend who worked in the DRP DEU, at 11:29 a.m. Mr. Tomlin asked if DRP were following Brett Dunstan, of 76 Red Ash Drive, Markham.

[47] That inquiry initiated a chain of communications.

[48] At 12:04 p.m. Detective Gillis’s DRP Telus phone received a call from Detective Constable Robertson’s phone.

[49] At 12:05 p.m. Detective Constable Robertson emailed Mr. Tomlin, “Yes he was a target of our 6 we are doing! My boss is not happy…Thanks for the info.”

[50] At 12:05 p.m. Detective Gillis’s DRP Telus phone contacted Detective Sergeant Moote’s DRP Telus phone.

[51] At 12:06 p.m. Detective Constable Robertson forwarded the email he had received from Mr. Tomlin, to Detective Gillis.

[52] At 12:08 p.m. Detective Gillis’s DRP Telus phone contacted Detective Hudson’s DRP Telus phone. At the same time, Detective Constable Robertson’s DRP Telus phone contacted YRP’s main line.

[53] At 12:15 p.m. Detective Gillis’s DRP Telus phone contacted YRP’s main line.

[54] At 12:19 p.m. Detective Gillis called Detective Ibbott of YRP. Detective Gillis advised that he had learned that a quantity of cocaine had been seized from the residence of Brett Dunstan, a person of interest in Project Gladiator. Detective Gillis requested confirmation. Detective Ibbott contacted his administrative assistant, who advised that the incident was recorded in a YRP Report. Detective Ibbott also learned that Mr. Dunstan’s lawyer had advised that Mr. Dunstan would turn himself in on September 27, after being out of the country. Detective Ibbott advised Detective Gillis of this information.

[55] At 12:21 p.m. Detective Ibbott called a YRP station, and at 12:37 p.m. Detective Ibbott contacted Detective Torres.

[56] At 12:43 p.m. Detective Ibbott contacted Detective Gillis’s cell phone.

[57] Also at 12:43 p.m. Mr. Tomlin forwarded Detective Constable Robertson the YRP General Occurrence Report about the incident at 76 Red Ash Drive.

[58] At 12:44 p.m. DRP Detective Constable Campbell queried Mr. Dunstan’s name on CPIC.

[59] At 12:45 p.m. Mr. Tomlin sent an email to Detective Torres.

[60] At 12:53 p.m. Detective Gillis’s DRP Telus phone called Detective Hudson’s DRP Telus phone.

[61] At 12:55 p.m. Detective Hudson’s DRP Telus phone called Detective Ibbott’s phone.

[62] At 12:58 p.m. Detective Sergeant Moote’s DRP Telus phone called Detective Gillis’s DRP Telus phone.

[63] At 1:00 p.m. Detective Gillis reported for duty.

The Positions of the Parties

[64] On behalf of Mr. Dunstan, Mr. Rusonik contends that the defence adduced evidence demonstrating a credible air of reality to the allegation that Detective Gillis made the anonymous call and that he and/or members of his team staged the break and enter, and that the Crown has not countered that evidence and met its ultimate persuasive burden of satisfying the court, on a balance of probabilities, that the warrantless police entry was justified. He relies on items of circumstantial evidence, including the state of the Gladiator investigation once Liu discovered the tracking device, and the content and nature of the anonymous call. He also relies on evidence of similarities between the voice of Detective Gillis and that of the caller.

[65] On behalf of the Crown, Mr. Wakely and Ms. Pashuk submit that the defence has not adduced evidence demonstrating a credible air of reality to its allegation, but that if it has, the Crown has countered it and met its ultimate persuasive burden. The Crown relies on evidence including that Gladiator was not failing, that Mr. Dunstan was not a target, that DRP gained nothing from the Red Ash seizure, and that the voice identification evidence does not provide reliable evidence that Detective Gillis was the anonymous caller.

The Approach to the Issue

[66] As the Court of Appeal made clear in its decision on the appeal after the first trial in this case[^2], the allegedly staged break-in and anonymous phone call, and the responding YRP warrantless entry are part of a single integrated chain of events.

[67] It is admitted by the defence that the conduct of the YRP officers who responded to the anonymous phone call was reasonable in the circumstances known to them. Their conduct, on its own, was lawful and did not amount to an unreasonable search or seizure.

[68] It also is admitted by the defence that the conduct of the YRP officers who executed the search warrant was reasonable in the circumstances known to them. Their conduct, on its own, was lawful and did not amount to an unreasonable search or seizure.

[69] The issue concerns the break-in and the anonymous call. The Crown relies on the anonymous call combined with the physical evidence of a break-in of the front door, to justify YRP officers’ entry of the house to look for suspects or anyone who might need assistance. The defence contends, however, that the break-in was staged by Detective Gillis and/or his team, so that drugs and money would be found by other police officers. The warrantless entry by YRP officers cannot be justified if it was triggered by an unlawful ruse carried out by a state actor or actors: see, R. v. Dunstan, 2017 ONCA 432, at para. 86.

[70] As the Court of Appeal indicated, the overall burden of persuasion on this s. 8 application rests with the Crown to justify the entry and the police conduct associated with it. However, the accused bears an evidentiary burden to lead evidence demonstrating a credible air of reality to the allegation that Detective Gillis and/or another officer or officers was responsible for the initial break-in. If the accused does so, the onus shifts back to the Crown to counter the credible evidence led by the accused and to meet its ultimate persuasive burden of satisfying the court, on a balance of probabilities, that the warrantless police entry was justified.

Did the Defence Demonstrate a Credible Air of Reality to its Allegation?

[71] The defence led evidence demonstrating a credible air of reality to its allegation that the break-in and the anonymous call were the acts of Detective Gillis and/or someone on the Gladiator team, including:

• The content and timing of the anonymous call;
• The fact that the caller did not identify himself and ended the call part way through;
• The fact that the call was not made as a 911 call;
• The broad similarity between the voice of the caller and that of Detective Gillis;
• The ongoing Gladiator investigation in which Mr. Dunstan had been identified as a drug associate of Liu, who was a target of the investigation;
• The existence of an outstanding proposal by DRP to YRP that Gladiator become a Joint Forces Operation;
• The use of staged break and enters by the police to hide covert entries, under the authority of a general warrant.

[72] I next consider whether the Crown has countered this evidence and met its ultimate persuasive burden of satisfying the court, on a balance of probabilities, that the warrantless police entry was justified.

Analysis

[73] My analysis is set out under various topic headings.

(a) The Voice Evidence

[74] Three witnesses in particular gave evidence that bears on voice identification.

[75] Adam White is a freelance audio engineer. He was retained by the defence, and called by the defence at trial.

[76] He testified that he took the anonymous call to the police, and used software to reduce the background noise and phone buzz to produce a “cleaned up” version of the call, which I will refer to as version 2.

[77] He then made other recordings using version 2, as follows:

1. The voice of the caller in version 2 interspersed with Detective Gillis speaking at a press conference;
2. The voice of the caller in version 2 followed by Detective Gillis speaking the same words. The voice clips of Detective Gillis were taken from a single recording of him speaking the words with the same pronunciation as the caller;
3. The voice of the caller in version 2 with the voice clips of Detective Gillis superimposed so that the voices are simultaneous;
4. The voice of the caller in version 2 followed by Mr. White’s own voice speaking the same words;
5. The voice of the caller in version 2 with Mr. White’s own voice superimposed so that the voices were simultaneous;
6. The voice of the caller in version 2 followed by another voice speaking the same words;
7. The voice of the caller in version 2 with another voice superimposed so that the voices were simultaneous;
8. The voice of the caller saying the word “Markum” followed by Detective Gillis saying that word in the voice clips, repeated in pairs five times;
9. The voice of the caller saying the word “frienly” followed by Detective Gillis saying that word in the voice clips, repeated in pairs five times.

[78] Mr. White said that it was defence counsel who chose one recording of Detective Gillis from a group of seven such recordings, and gave it to him. He then cut up the individual words and phrases and adjusted the speed of them so that the caller and Detective Gillis were saying the same things at the same rate, on recordings 2 and 3. Mr. White called this time compression. With respect to recordings 4 and 5, he made only one recording of his voice and did the same adjustment to it for rate of speech. With respect to recordings 6 and 7, defence counsel picked two clips out of over 600 for Mr. White to use. He adjusted the speed on one word. With respect to recordings 8 and 9, he purposely chose out of the seven clips of Detective Gillis the three that sounded most similar to the anonymous caller, and defence counsel then selected out of those three the one he wanted Mr. White to use.

[79] I give little weight to the evidence of the recordings Mr. White made. The comparisons were not fair and reliable. Aside from the small sample of voices involved, he and/or defence counsel deliberately selected recordings so that the voices would sound more rather than less similar. In altering the natural speed of Detective Gillis’s voice to match that of the caller, Mr. White made the voices sound more similar.

[80] Aaron Low is a speech language pathologist. He operates an establishment called the Voice Clinic. A large number of his clients are singers or aspiring singers, and the rest are professional voice users including teachers, lawyers and members of the clergy. He helps his clients improve their voices. He listens to the particular voice and subjectively analyzes it. He also uses software to objectively analyze it.

[81] He was retained by defence counsel and called as a defence witness. On consent, he was qualified as an expert in speech pathology, who can identify the components of a speaker’s voice production, and can identify and describe how the speaker physically produced those components.

[82] He listened to the anonymous call, the Project Gladiator press conference at which Detective Gillis spoke, and a recording of Detective Gillis saying certain words as requested by defence counsel during cross-examination so that the vowels would stand out. He analyzed the vowel sounds in each one.

[83] He testified that he heard a lot of strain across all the vowels in the voice on the anonymous call. The strain was easily identified. He would term it a severe amount of strain. He heard a similar level of strain in the press conference recording and in the courtroom recording of Detective Gillis. In his experience this level of strain is rare. He sees it only two or three times a year in his practice.

[84] Mr. Low subjected all three recordings to a computer analysis of jitter. Jitter is a measurement of strain. He produced charts showing the jitter per cent in three vowel sounds:

1. “Ahh” in “lack” voiced by Detective Gillis in court: jitter per cent of 9.460;
2. “Ahh” in “lack” voiced by himself: jitter per cent 0.835;
3. “I” in “hi” voiced by Detective Gillis in court: jitter per cent of 11.035;;
4. “I” in “hi” from the anonymous call: jitter per cent of 10.738;
5. “I” in “tie” voiced by Detective Gillis in court: jitter per cent of 9.811;
6. “I” in “sigh” voiced by Detective Gillis in court: jitter per cent of 11.881;
7. “A” in “eight” from the anonymous call: jitter per cent of 7.869;
8. “A” in “late” voiced by Detective Gillis in court: jitter per cent of 9.656;
9. “A” in “hate” voiced by Detective Gillis in court: jitter per cent of 8.033.

[85] He said that a result of 7 per cent is a severe to profound level of jitter.

[86] I put little weight on the testimony of Mr. Low. Although he testified as an expert with the consent of Crown counsel, he was not an objective, unbiased witness. He said that he was asked to compare the recordings and to say whether the voices were the same. He was told that this was for a lawyer. He did not know that it was for court purposes. He did not express, either in his report or in his testimony, an understanding of his duty to the court to be impartial, independent and unbiased.

[87] This is of concern, because it was only in cross-examination that Mr. Low said that he ran additional computer analyses that were not included in his report. He ran Detective Gillis saying “eight” in court, but did not use the results because he thought his secretary misinterpreted them. He got a jitter measurement of 4.86 per cent from Detective Gillis saying “dash” in the press conference, but he did not include it because he said it was from a test that ran wrong. He acknowledged that he ran many analyses for which he did not print data, because the test did not run, or he did not think the results were relevant.

[88] Further, one page in his file was not disclosed to Crown counsel. There he noted that in the press conference clip, Detective Gillis’s voice was deeper and had faster speed of articulation than that of the anonymous caller. Mr. Low said that he did not include this information in his report because these are variables that can be changed. Mr. Low said that his task was to find similarities between the two voices, so he did not report dis-similarities that he observed. In any event, he believed none of them had any merit.

[89] In addition to the concern about bias, Mr. Low was unable to say what proportion of Canadian males have a jitter measurement of 7 per cent, or whether his experience with persons who use their voices for a living translates across the male Canadian population. He did not give evidence from which it can be concluded that the nine test results he provided represent an empirically sound basis from which to draw inferences about voices in the forensic context, as opposed to the therapeutic context in which he works.

[90] Dr. Geoffrey Morrison is an Associate Professor of Forensic Speech Science at the Centre for Forensic Linguistics at Aston University. He also works as a forensic consultant. He was retained by DRP and called as a witness by the Crown. On consent, he was qualified to give expert evidence in forensic voice comparison, including methodologies used in forensic voice comparison, and forensic inference and statistics.

[91] Dr. Morrison does work in voice comparison, using the automatic approach. This is a system developed by signal processing engineers. Using computer measurements, he measures the acoustic properties of recorded voices. He broadly measures how similar the acoustic properties are and broadly measures it against how typical those acoustic properties are in the relevant population. He does this because similarities alone can be misleading without knowing how typical they are in the relevant population. His finding is reported as a likelihood ratio.

[92] He was provided with a recording of the anonymous call, plus over 500 recordings of English speaking DRP officers reciting what he believed were the same words as the caller, which formed his relevant population, and eight recordings of the known speaker, Detective Gillis.

[93] The question he ultimately sought to answer was: What is the probability of obtaining the measured acoustic properties of the voice of interest on the questioned speaker recording, if it were produced by the known speaker, versus what is the probability of obtaining the measured acoustic properties of the voice of interest on the questioned speaker recording, if it were produced not by the known speaker but by some other speaker selected at random from the population of adult make speakers of general Canadian English. The likelihood ratio obtained was 1 over 1.765. That means the probability of getting the acoustic properties on the known and the questioned speaker recordings was slightly more likely if they were produced by different speakers from the relevant population, than if they were produced by the same speaker. But it is relatively close to equally likely.

[94] I accept that Dr. Morrison is very well-qualified in his field. I have reservations, however, about his opinion based on the application of the automatic approach in this case, for reasons that include the following:

1. He has applied his system in the forensic context in only two other cases. It may be very useful in other contexts where there is a need for voice comparison. But in the forensic context, it is novel and must be carefully scrutinized.
2. He had for analysis approximately ten seconds of speech by the anonymous caller. He acknowledged that the shorter the voice recording, the less information is available for acoustic measurement.
3. Dr. Morrison recognized there was an issue arising from the fact that there is variability in voices over time. There was an approximate six year gap between the questioned speaker recordings and the known speaker recording, but a gap of only days between the recordings of sample speakers. He had not worked before with anything other than short time differences. He relied on data from a colleague who had access to a database of recordings to do a calculation of relative shift, and applied it. It is not clear what that data was and it is not possible to assess the validity of using it as Dr. Morrison did.
4. Dr. Morrison determined that the relevant population from which to obtain voice samples was general Canadian English speakers in southern Ontario. He told Crown counsel that the relevant population should not be defined in any way by the features of the known speaker. In a decision that I accept was a good faith one, Crown counsel used DRP officers as the sample population. The known speaker, Detective Gillis, is of course a DRP officer. The Crown submits that this does not matter because there is no evidence that police officers speak in a different way from general Canadian English speakers in southern Ontario. It is, however, a reasonable inference and one that I draw that because of the nature of their work, police officers are accustomed to speaking with authority in a way that may not reflect the speaking style of general Canadian English speakers in southern Ontario selected at random.

[95] I attach little weight to Dr. Morrison’s conclusion.

[96] I do accept Dr. Morrison’s testimony that there is a need to be cautious about the subjective judgement of lay people about voice comparison and voice recognition. He said research shows that individuals over-estimate how good they are at speaker recognition. This is relevant to the evidence of police witnesses who are familiar with the voice of Detective Gillis and who listened to the recording of the anonymous call in court.

[97] Detective Sergeant Moote said that he did not recognize the voice of the anonymous caller and did not think it was that of Detective Gillis. Detective Constable Mackintosh said that he did not recognize the voice on the recording. Detective Constable Finateri said that she did not recognize the voice of the caller and that it was not Detective Gillis. Defence counsel played her voice clips of Detective Gillis and the anonymous caller saying the same words, in quick succession. In some instances, she correctly identified the voice as not that of Detective Gillis, and in other instances she was wrong.

[98] Professor Morrison’s caution is also relevant to my own assessment of the voices. Counsel all agree that I can make my own comparison of the voice on the anonymous call to that of Detective Gillis, from the various recordings and his testimony before me. I have done so as a lay person and bearing in mind the caution. When the anonymous call was played part way through Detective Gillis’s examination in-chief, I noted that the caller did not sound like the witness to whom I was listening. For example, I would describe the speaking style of Detective Gillis as more clipped. On the other hand, the voices sound more similar on some of the recordings, although the call is very short, and the caller spoke few words.

[99] Based on all of this evidence, while there are some broad similarities between the voices, I am uncertain whether the voice of the anonymous caller was that of Detective Gillis. I am unable to find, on the basis of the voice evidence, that Detective Gillis was, or was not, the anonymous caller, or even that one is more likely than the other.

[100] I consider this along with the other evidence, to which I now turn.

(b) The Status of the Investigation

[101] I find that the Gladiator investigation was not in trouble as of September19-20, 2011.

[102] It is true that Liu’s July 29 discovery of the tracking device caused him to suspend his drug activity and led him and some associates to be surveillance conscious. This was a set-back for the investigation. Further, on September 19, Detective Gillis sent an email to the Project Gladiator team that commenced, “last week was a difficult week”, referencing the team being compromised while attempting to execute a covert entry of Pijman Safarloo’s apartment.

[103] However, I accept Detective Gillis’s testimony that as of September 20, Chang and Kharizfar were still active, and Gladiator had new targets. This is consistent with the description of the investigation that Detective Constable Mackintosh provided in his affidavit sworn September 21, 2011, on the basis of which I granted the second wiretap authorization, as drafted by Detective Constable Mackintosh.

[104] In that affidavit, Detective Constable Mackintosh said that the investigation took a significant step back when investigators scaled back their surveillance of Liu for a 30 day period after he found the tracking device. But, he also said that the 30 days had passed, and some surveillance of Liu had recommenced. The earlier interception of Liu’s communications had provided the police with valuable intelligence about his drug contacts and his financial gain from drug trafficking. Detective Constable Mackintosh stated that approximately 2000 intercepted communications had been marked as containing pertinent information. Additionally, in September 2011 investigators began receiving PIN to PIN messages between Kharizfar and Chang, and believed they would be able to capture PIN to PIN messages between Chang and other drug associates including Liu.

[105] Detective Constable Mackintosh also set out developments in the investigation. He:

• Described that Gladiator investigators continued to investigate Kharizfar, and had identified Pijman Safarloo as one of his heroin suppliers and Bayan Mirian as his cocaine supplier;
• Described a drug order that Chang placed with Kharizfar for GHB;
• Named Diep Dung Phung as a person from whom Chang ordered drugs and to whom Chang supplied ecstasy;
• Named Timothy Benedicto as another drug associate of Chang;
• Described a successful covert entry into Mirian’s condominium unit, where crack cocaine was observed.

[106] In addition to the Principal Known Persons named in the first authorization, Detective Constable Mackintosh sought to add Janice Copon (linked to Kharizfar), Mark Ping Yang (linked to Liu), Audrey Liu (linked to Liu), Vincent Liu (linked to Liu), Bayan Mirian, and Diep Dung Phung (linked to Chang). He also listed the names of 17 Other Known Persons.

[107] In his September 19 email, Detective Gillis spoke of other steps being taken to advance the investigation, including the installation of a covert camera outside Safarloo’s apartment; information gathered toward identifying a female involved in the drug dealing; a forthcoming production order to assist in getting Chang’s new telephone number; the fact that PIN to PIN messages between Kharizfar and Chang were now being accessed; and his expectation that the JFO Plan would be signed within a week.

[108] I also note that the JFO Plan prepared by Detective Sergeant Moote and submitted to YRP before September 20 set out that during the cool-down period after Liu’s discovery of the tracking device, Kharizfar was continuing to traffic drugs, a new phone number for Chang was discovered and coded conversations intercepted, and it was learned that Mirian was planning with Kharizfar to transport a large quantity of GHB.

[109] All of this information indicates that the investigation was not only active, but was expanding as of September 19-20. Just as Detective Sergeant Moote wrote in the JFO Plan, the investigation was “progressing forward”.

(c) The Status of the Proposed Joint Forces Operation

[110] Detective Gillis testified that between August 16 when he made the presentation to YRP officers and September 20, he had no indication that YRP would not join the Gladiator investigation, and no reason to think YRP would not join. Further, he understood that if two police forces joined together, CISO would fund the joint investigation.

[111] I accept his evidence.

[112] His testimony was supported by that of Detective Sergeant Moote and Detective Ibbott. Detective Sergeant Moote testified that the YRP officers present at the August 16 presentation were very interested in partnering with DRP. In the period from August 16 to September 20, he never had the impression or received information that YRP was hesitating to sign on to the Joint Forces Operation proposal. YRP never expressed that Gladiator was not having enough success for it to sign on.

[113] Detective Sergeant Moote also testified that success of an investigation is not a factor in whether CISO funding will be granted. He said that the CISO District Liaison told him from the get-go, some time in August, that the joint investigation would be funded, because it fit CISO’s criteria, in that two police services were involved and it concerned organized crime. It was just a matter of getting the proposal signed by both forces and then having the CISO Board convene. As of mid-September, Detective Sergeant Moote was confident CISO funding would be provided.

[114] Detective Ibbott testified that after the August 16 presentation, he was keen to join a joint forces operation, and the two YRP staff sergeants who attended the meeting seemed to be on board. He noted that quite a few of the targets were located in York Region, and that YRP was moving toward joint forces investigations. He never heard, before the JFO Plan was signed on behalf of YRP, that YRP would not join the Gladiator investigation. Detective Gillis never gave him any indication of nervousness that YRP would not sign on.

[115] Detective Ibbott also said that he heard no suggestion that CISO would not fund the proposed joint operation.

[116] No evidence was adduced that YRP was reluctant to join the investigation, or that it signalled to the DRP that it might not do so. In fact, as a result of the August 16 meeting, and before the JFO Plan was signed, YRP began providing assistance to Gladiator, specifically surveillance assistance and foreign language translators for intercepted communications.

[117] Similarly, no evidence was adduced that CISO was reluctant to fund the joint forces operation, or signalled that it might not do so. To the contrary, it approved the proposal within two weeks of receiving the JFO Plan.

[118] The evidence reveals no reason for Detective Gillis or any member of his team to have been concerned as of September 19-20 that either YRP would not sign the JFO Plan, or that CISO would not approve the JFO Plan.

[119] And, even if CISO and YRP had declined the joint forces proposal, DRP had money in its budget to fund the Gladiator investigation, according to both Detective Gillis and Detective Sergeant Moote. This testimony was not contradicted.

(d) The Second Wiretap Application

[120] The first wiretap authorization was valid until approximately September 27, 2011.

[121] Detective Constable Mackintosh testified that he began working on the second wiretap application on September 3, 2011.

[122] There is no evidence that the Gladiator investigators were concerned that the second application would not be granted unless there was some breakthrough in the investigation, such as the discovery of a large quantity of drugs. As I have mentioned already, the second application reflected a broadening of the targets beyond the four who were named in the first authorization, and the identification of additional known persons, based on evidence gathered since the granting of that first authorization. The affidavit in support of the second authorization was lengthy, at 124 pages, and detailed.

[123] Gladiator investigators testified and I accept that they were not concerned that the second authorization would not be granted. Detective Gillis testified that he was confident the authorization would be granted. The project was expanding and there were new targets. That evidence is echoed by the testimony of Detective Constable Mackintosh. He said that he had no doubt the authorization would be granted. No other investigator expressed concern to him that it would not.

[124] The second application was, in fact granted, without the events at Red Ash even being mentioned in the affidavit.

(e) The Police View of Mr. Dunstan

[125] I find that while Detective Gillis and DRP officers may have recognized Mr. Dunstan as a supplier of drugs or keeper of a stash house after the results of the YRP attendance at 76 Red Ash became known, as of September 19-20, 2011, they did not view Mr. Dunstan as a significant player in Gladiator.

[126] Detective Gillis testified that before he was told of the break-in at 76 Red Ash, he thought that Mr. Dunstan was a customer of Liu. He did not think that Mr. Dunstan was a significant player. Mr. Dunstan had been seen only once in surveillance. Detective Gillis did not believe that 76 Red Ash was a stash house. Accordingly, he did not discuss with other officers a search of the house, or turn his mind to getting a general warrant to enter it covertly.

[127] Detective Sergeant Moote testified that as far as he was concerned, Mr. Dunstan was not a significant participant in Gladiator. Accordingly, Detective Sergeant Moote had not discussed with Detective Gillis getting a search or general warrant for Mr. Dunstan’s home, or that it was a stash house.

[128] I accept this evidence of Detective Gillis and Detective Sergeant Moote. It is consistent with the fact that neither Mr. Dunstan nor his July 21, 2011, exchange with Liu were mentioned in the JFO Plan that Detective Sergeant Moote prepared and submitted to his superiors and to YRP. Mr. Dunstan was not one of the eleven individuals named on the Target List attached to the JFO Plan.

[129] The evidence is also supported by the testimony of Detective Ibbott of YRP, who attended the DRP presentation about Gladiator on August 16. He testified that when he learned of the break-in, he was surprised because he was not familiar with the name Dunstan. He had not heard anyone mention the possibility of searching Mr. Dunstan’s residence or that it might be a stash house.

[130] Additional support is found in the September 21 affidavit of Detective Constable Mackintosh, in which he identified Mr. Dunstan as a customer of Liu. Mr. Dunstan was named in paragraph 22 along with several other individuals as one of Liu’s group of “drug associates”, and as one of 17 Other Known Persons. In paragraphs 53 to 55 of the affidavit, Detective Constable Mackintosh summarized the surveillance observations of Liu meeting with Mr. Dunstan on July 21, and the observations of Mr. Dunstan’s Jeep at 76 Red Ash Drive on August 2 and 3. He stated, “I believe Brett Dunstan is a customer of James Liu’s”, and also referenced Liu’s room probe conversation on July 29. In his testimony on the application, Detective Constable Mackintosh explained that Mr. Dunstan was not a target of the investigation, as he had been seen only once, and was believed to be Liu’s customer.

[131] I am aware that Mr. Tomlin, the YRP crime analyst, referred to Mr. Dunstan as “a major target of a current Durham Drugs and Vice project” in his September 21, 2011, email to YRP Detective Torres. He wrote this after he emailed his friend DRP Detective Constable Robertson about the break-in, suggesting “it seems like he [Mr. Dunstan] might be a major player” given the amount of drugs and cash found, and then receiving an email back from officer Robertson that Mr. Dunstan “was a target of our 6 we are doing” referring to the Part VI wiretap. Detective Constable Robertson testified that by “target”, he meant that Mr. Dunstan was someone who had come up in Gladiator, but he would not have thought of him as a Principal Known Person or as an Other Known Person. Detective Constable Robertson acknowledged that he did not have a role in deciding who was a target in Gladiator. I find that Detective Constable Robertson used the word “target” loosely after learning of the break-in, and that his terminology did not reflect the view of Detective Gillis or other officers leading the project, about Mr. Dunstan.

(f) A Police Break-In of Red Ash Would Have Been Very Risky

[132] The evidence is clear that the police do obtain general warrants authorizing them to execute covert entries of residences. Sometimes, the warrants authorize the use of staged break and enters to hide the covert entry. As Detective Sergeant Ibbott testified, the police use the “technique” of kicking in the door of the residence, because such an entry resembles a “normal” break and enter, as opposed to police activity.

[133] It is obvious that covert entries of any kind pose safety risks, as well as risks to the integrity of an ongoing investigation. There was a consistent body of evidence, which I accept, that preparatory steps are taken by the police before an authorized covert entry is even attempted, and that officers follow an established protocol for its execution. Detective Gillis testified about his experience doing covert entries. He said that usually there is surveillance of the address and it occupants, in advance. On the day of entry, a team in excess of 10 officers is involved, including a cover team. A contingency plan is put in place in case something untoward happens. Usually, if the covert entry is of a place outside of the officers’ jurisdiction, they notify the local police service in advance, in case, for example, neighbours call the local police. Detective Constable Finateri said that the police try to execute covert entries during the day, and do not do them at night without having done surveillance in advance to ensure that no-one is inside the residence.

[134] Detective Ibbott gave similar testimony about his experience doing covert entries as a YRP officer. He said that he would never send a single person in to do a covert entry alone, as the risk of something going wrong goes up when there are not enough eyes. He would involve as many as 10 to 15 officers, some to go into the residence, and some to be outside including to flow information to those who are inside. Covert entries are done when it is safest for the police and the public.

[135] The defence relies on testimony of Detective Sergeant Moote and Detective Gillis that after learning of events at Red Ash, they speculated that the incident resembled a police technique. Detective Sergeant Moote testified and explained that his understanding that an entry was made, several males were reportedly seen running away, and responding officers located drugs and money, led him to this speculation. He did not know at that time that the door had been kicked in, and so was not referring to that. Detective Gillis explained that at first blush, he thought a police force could be responsible because eight people were reported fleeing and there was a large seizure of drugs, but on reflection he concluded it was not police action because the police would not have done an entry and left the drugs there for other officers to come in later with a search warrant.

[136] I fine that this discussion between the officers when they first heard about Red Ash was no more than loose speculation on their part.

[137] I find that kicking in the door of Mr. Dunstan’s residence in the middle of the night bears only superficial similarity to a police “technique”. Gladiator officers had done none of the preparatory work to carry out a covert entry of Red Ash based on a staged break-in. The relevant stationary surveillance and database checks had not been done. Even if Detective Gillis and/or other officers knew that Mr. Dunstan was out of the country, on the evidence they did not know who else might live at the house, whether anyone was staying at the house in Mr. Dunstan’s absence, whether there was a functioning alarm system there, or whether neighbouring homes had surveillance cameras that would capture the front door of 76 Red Ash. It was clear from a photograph included in the Investigative Report of Detective Constable Finateri that neighbouring homes were very close by. Neighbours could be expected to be home in the middle of the night.

[138] I find that the risk to a group of officers, and even more so to a single officer, in staging a break and enter of Mr. Dunstan’s house was significant. There was the potential for physical harm to themselves and others. There was a risk that they would be detected and the entire Gladiator investigation jeopardized. I find that this was not an entry that resembled or was consistent with a police technique, such that it would be reasonable to infer that it was police action.

[139] Further, it does not make sense that the police would resort to an unauthorized staged break and enter of Mr. Dunstan’s house. As of September 2011, the Gladiator team had obtained various judicial orders that authorized covert entries, and had conducted a number of them. All they risked in applying for authorization to covertly enter 76 Red Ash under the guise of a staged break-in was that they would be turned down by a judicial officer. By comparison, the risks inherent in illegally breaking into Mr. Dunstan’s house were significant. They included, in addition to those already mentioned, the potential for loss of career, and prosecution for commission of one or more criminal offences, if discovered.

(g) The Seizure at Red Ash was Not Relied on to Advance the Investigation

[140] The evidence does not indicate that Detective Gillis or other officers relied on the seizure at 76 Red Ash to advance the Gladiator investigation.

[141] Detective Gillis testified that when he learned of the break-in, he was upset, angry and disappointed. I appreciate that this could be self-serving evidence, given that Detective Gillis knows that defence counsel alleges he is the anonymous caller. However, on September 21, 2011, before Mr. Dunstan was even arrested, Constable Robertson noted in an email that his “boss”, referring to Detective Gillis, was “not happy” to learn of the events at Red Ash. This prior statement attributed to Detective Gillis rebuts any suggestion of recent fabrication of his testimony that he was upset. I accept the testimony of Detective Gillis about his reaction to the break-in.

[142] It is relevant that Gladiator investigators did not rely on the seizure at Red Ash to advance the investigation. Detective Sergeant Moote did not reference the Red Ash seizure in the JFO Plan that he submitted to CISO on September 23. Detective Constable Mackintosh testified that the events at Red Ash were not mentioned in his affidavit in support of the second wiretap application, because he did not know about them until after he submitted the application on September 21. He said that no-one had discussed with him holding off on the application.

[143] Later, on September 26, 2011, Detective Constable Mackintosh started to prepare a supplementary affidavit because the police wanted four amendments. None of them related to Mr. Dunstan. He did not consider naming Mr. Dunstan as a Principal Known Person whose communications could be directly intercepted. He did not mention Mr. Dunstan or Red Ash in that document. He said that the seizure at Red Ash did not affect the conduct of the investigation after the second wiretap authorization was granted.

[144] It is not disputed that the seizure at Red Ash was mentioned in only one affidavit, an Information to Obtain search warrants related to the take-down. Even then it was mentioned only in a footnote.

[145] On the evidence, the break-in at 76 Red Ash was not used by the Gladiator team to advance the investigation while the project was running.

[146] Defence counsel cross-examined Detective Gillis about a video recorded press conference he was involved in when the Gladiator investigation closed. The drugs seized during the investigation, including those seized by YRP at 76 Red Ash, were on display to the media as Detective Gillis spoke about the results of the investigation. He agreed in his testimony that in this way, Gladiator took some credit for the seizure, although he did not specifically reference Mr. Dunstan or the Red Ash seizure in his remarks to the media. He explained that the seizure was related to Gladiator, in that Mr. Dunstan was part of the network that Gladiator investigated. This is consistent with other evidence about the investigation. It is notable, however, that a DRP media release apparently about this same media event indicated that a YRP Inspector was present at it and that the DRP Deputy Chief spoke about the project as a Joint Forces Operation of the two police services.

[147] Similarly, Detective Sergeant Moote mentioned the seizure of drugs by YRP at 76 Red Ash in the “Operational highlights during intercepted period” section of the final report he submitted to CISO, as one of about two dozen incidents highlighted. This is not surprising, since the report provided CISO with an overview of the investigation both before and after it became a Joint Forces Operation.

[148] The fact that the police referenced the drug seizure attributable to Mr. Dunstan after the project concluded, along with everything else seized and the numerous other incidents that occurred, does not indicate that the police were responsible for the break-in at Red Ash.

(h) Motive and Opportunity to Break Into 76 Red Ash Drive

[149] I accept the testimony of Detective Gillis that home invasions are an occupational hazard of drug dealing and that drug dealers do commit home invasions of the premises of other drug dealers. That is well-documented in the jurisprudence, including that referenced by Crown counsel.

[150] The added feature in this case is the anonymous call to the police, which clearly was intended to get officers to the house.

[151] Defence counsel argues that the fact the call was placed to a YRP non-emergency number is significant. I agree that if an innocent bystander had seen suspicious activity around the residence in the middle of the night, it is more likely that the call would have been made to 911. However, there is no evidence that only a police officer would have called a YRP non-emergency line. To the contrary, the evidence of Kathryn Sparks, which I accept, is that calls for police service come to YRP non-emergency numbers “all the time”. Exhibit 14 shows eleven other calls made to or out from YRP non-emergency numbers from 1:52 a.m. to 2:21 a.m. on September 20, 2011. It is not telling that the call about Red Ash was made from a blocked number. Exhibit 15 shows there were other external calls into the same call-taker that morning that had no caller ID, indicating that they too were made from blocked numbers.

[152] I find that it was not a secret revealed only to the police that Mr. Dunstan was away for the month of September. After the break-in, police spoke to Mr. Dunstan’s ex-girlfriend as well as his mother, both of whom indicated that he was out of the country. More importantly, Liu knew that Mr. Dunstan was away, and for how long he was away. In a conversation on the morning of September 1, 2011, that was intercepted by the police, Liu told David Yang that Mr. Dunstan was in the Philippines for a month.

[153] It is noteworthy that weeks earlier, after he discovered the tracking device, Liu spoke with Mark Ping Yang, who was a close drug associate of Liu and shared access with Liu to the Toronto condominium unit where drugs were found during a covert entry. Liu was not happy that the police were interested in him. He and Yang discussed the “weak link” who might have brought the police to him. They went through names of various people with whom Liu had drug dealings, including “Brett”, admitted by the defence to be a reference to Mr. Dunstan. Liu obviously had concerns that someone with whom he had drug dealings, such as Mr. Dunstan, might have led the police to him

[154] Liu added that “one of Brett’s guys got fucking pinched”. This indicates that Mr. Dunstan had his own drug associates. The debt list found in a vehicle in the garage of 76 Red Ash also indicates that Mr. Dunstan had drug dealings with others.

[155] It is a reasonable inference and one that I draw that there were persons involved in the drug trade who had opportunity to break into Mr. Dunstan’s house and then bring police attention to him.

(i) The Whereabouts and Activity of Detective Gillis

[156] Detective Gillis was on a day off on September 19, 2011. He came into his office at 4:30 p.m., learned that a search warrant was to be executed on another project, and participated in its execution as a supervisor.

[157] He said that he left the office at 10:30 p.m., went home, and was at home in bed when 76 Red Ash was broken into and the anonymous call made.

[158] He started work at 11:30 a.m. on September 20 and reported off duty at 9:30 p.m.

[159] I accept the testimony of Detective Gillis about his whereabouts on September 19 and 20, 2011. The records that have been produced show no activity on the part of Detective Gillis overnight on September 19-20. This is consistent with his testimony.

[160] Defence counsel takes issue with the records that have been produced, and the timing of their production, asserting that Crown counsel and Detective Gillis did not comply with requests for production at the first trial. Detective Gillis said that he first learned that defence counsel was alleging that he was the anonymous caller and involved in the break-in at Red Ash, in the midst of his testimony at the first trial in December 2013. Mr. Dunstan was found guilty at that trial. He appealed, and a new trial was ordered. In its decision, the Court of Appeal for Ontario was critical of the Crown’s failure to provide the records of Detective Gillis’s DRP cell phone and information about his whereabouts on the morning of September 20, 2011.

[161] Although the timing is not entirely clear, it appears that after the new trial was ordered, DRP Professional Standards Branch became involved, and Mr. Wakely and Ms. Pashuk were assigned as Crown counsel. Detective Gillis’s work and personal records were made available to the defence.

[162] Detective Gillis also asked that the DRP Chief of Police commence a Chief’s Complaint, to initiate a formal investigation into defence counsel’s allegation against him. The Chief of Police declined to do so.

[163] Detective Gillis’s work and personal records show the following:

• His work-issued Telus phone made no calls between 8:28 p.m. on August 19 and 9:41 a.m. on August 20. The 8:28 p.m. call was received by the phone in Oshawa. The 9:41 a.m. call was made while the phone was in Brooklin, in Durham Region.
• His work-issued Blackberry phone made no calls on September 19 and 20.
• His personal cell phone, which he said was used exclusively by his wife, received a call from Whitby at 8:12 p.m. on September 19. The next call was an incoming call from Whitby at 10:13 a.m. on September 20, 2011.
• 407 ETR records confirm that no vehicle registered to him travelled on Highway 407 that night.
• His bank records show his last activity on September 19 was at 10:38 a.m. He carried out on-line transactions on September 20 beginning at 7:23 a.m.

[164] In addition, Detective Gillis produced work email messages, tried to retrieve any archived messages from September 19-20, 2011, and checked his personal email account for messages that might shed light on his whereabouts, but found none.

[165] Detective Gillis also provided multiple samples of his voice.

[166] The cell phone records do not support the defence contention that Detective Gillis made the anonymous call. Defence counsel took the position on this retrial that Detective Gillis could have made the anonymous call from another phone, such as a “burner” phone. Detective Gillis testified that he did not have any other phone. It is speculative to suggest that he did.

[167] The boot print on the door of 76 Red Ash was forensically identified as being created by a particular kind of Timberland boot. Detective Gillis testified that he was wearing civilian footwear on September 19, but that he did not own a pair of Timberland boots. There is no evidence to the contrary. The records show that he owned a pair of Ecco Expedition boots.

[168] I note that records for other Gladiator investigators were produced. These included records for DRP issued phones. They show that none of those phones made the anonymous call.

[169] The evidence about Detective Gillis’s activities in the days leading up to September 20 is also relevant. The evidence does not indicate that he did anything that reflected a particular interest in Mr. Dunstan. He regularly assigned tasks to members of the Gladiator team, but there is no evidence that after August 4 when the police last saw Mr. Dunstan’s vehicle in the driveway of 76 Red Ash he assigned anyone to do background checks on Mr. Dunstan or 76 Red Ash, or to conduct surveillance there, or to pull particular wireroom summaries. Further, Detective Constable Mackintosh, who in the period leading up to September 20 was preparing the second wiretap application for submission, said that there was no discussion about him holding off on doing so.

[170] Detective Gillis went into work on September 20. He testified that he did not know until noon on September 21 about the events at 76 Red Ash. There is no evidence to indicate otherwise. There is no evidence that he or anyone on the Gladiator team had any contact with YRP, until Mr. Tomlin reached out to his friend and neighbour Detective Constable Robertson, on an informal basis on September 21.

[171] Once informed of events in a brief telephone conversation with Detective Constable Robertson, Detective Gillis contacted the officer in charge of the DEU, Detective Sergeant Moote, and the other lead investigator, Detective Hudson. He contacted YRP Detective Ibbott to get details. There is no evidence that he attempted to influence the course of any YRP investigation.

(j) Detective Gillis’s Professional Stature

[172] Detective Gillis has been an officer with DRP for over 20 years, and is now an Inspector. He is in charge of Investigative Services. He is an SIU liaison officer for DRP, and a hearing officer for Police Service Act hearings. While with the DEU, he, along with Detective Hudson, instructed at the Ontario Police College Drug Investigators Course. Detective Sergeant Moote, who supervised Detective Gillis in the DEU for three years, described him as a leader in that Unit. He created best practices and disclosure procedures that became a provincial model. His reputation was as a hardworking, very professional officer. He did not have a reputation for being a maverick or playing things close to the line.

[173] Defence counsel suggests that Detective Gillis’s need to maintain his reputation as a drug investigator drove him to break into Mr. Dunstan’s house in search of the motherlode of drugs.

[174] I do not say that there have never been instances of police officers engaging in misconduct, including by the commission of criminal offences. I do not accept, however, that Detective Gillis would put his career and potentially his liberty at risk by committing the serious offences of break and enter, obstruct police, and obstruct justice for the sake of trying to advance a single drug investigation. No evidence was adduced that showed he was an officer who was prepared to engage, or have his team engage in criminal activity to move an investigation forward. I note that Detective Constable Finateri testified that earlier in September 2011, she was part of a group that went to Safarloo’s residence with a general warrant, intending to execute it until they discovered that the assistance order had the wrong address. She called Detective Gillis. She did not suggest that he encouraged her to execute the warrant anyway. To the contrary, she said that the warrant was not executed that day.

[175] I accept the testimony of Detective Gillis that he would never commit a criminal act to move an investigation forward.

Conclusion

[176] For the reasons given, I accept in particular the evidence of Detective Gillis that he did not make the anonymous phone call to YRP, that he did not recognize the caller’s voice as that of any member of his team, and that he was not responsible for the break-in of 76 Red Ash, either alone, or with his team.

[177] Further, I am satisfied on a balance of probabilities that no other member of the Gladiator team made the anonymous call or was involved in the break-in. I am satisfied on a balance of probabilities that the break-in was not committed by the police.

[178] I am satisfied on a balance of probabilities that the warrantless entry of 76 Red Ash Drive by YRP was in response to a break-in committed by a non-state actor and was justified.

[179] The application is dismissed.

FUERST RSJ.

Released: July 3, 2018

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

BRETT DUNSTAN

Defendant

REASONS FOR JUDGMENT ON CHARTER SECTION 8 APPLICATION

FUERST RSJ.

Released: July 3, 2018

[^1]: Neither Crown nor defence counsel objected to me hearing this s. 8 application.

[^2]: R. v. Dunstan, 2017 ONCA 432