COURT FILE NO.: CR-17-1871 DATE: 2019/08/19

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent – and – FAYSAL BASHIR and SAID MUDDEI Applicants

Counsel: Timothy Wightman, for the Crown (Respondent) Solomon Friedman and Fady Mansour, for the Applicant, Faysal Bashir Diane Condo, for the Applicant, Said Muddei

HEARD: June 26-27, 2019

AMENDED RULING ON PRE-TRIAL APPLICATION

The text of the original Ruling was amended on August 19, 2019 and the description of the amendment is appended

corthorn J.

Introduction

[1] The applicants are collectively charged with seven offences arising from events alleged to have occurred on December 19, 2016. The offences include robbery, assault, and weapons offences.

[2] The charges stem from intercepted communications pursuant to a wiretap authorization issued in early December 2016 (“the Authorization”). The Authorization was requested in the context of the investigation of a homicide that occurred in May 2009 (“the Homicide”). In May 2009, Mohamed Ali was shot and killed while at the Bar 56 night club in Ottawa.

[3] The affidavit filed in support of the request for the wiretap authorization is from Det. Chris Benson (the “Affidavit”).

[4] Mr. Bashir is one of several targets of the Authorization. He is believed by the police to be involved in the commission of the Homicide. Mr. Muddei is not a target; his name is not mentioned in any way in the Affidavit.

[5] The Authorization was previously the subject of an application in another proceeding. In R. v. Fazeli, Mengesha, Thibault and Vaillant, (Ontario Court of Justice, February 7, 2019; Court file No.: 17-RF1043, Brown J.). Brown J. concluded that the issuing justice could, on the evidence before him, have reasonably inferred that:

a) the investigative plan proposed, including the use of electronic surveillance, would afford evidence of the offence (para. 63); and

b) investigative necessity for the use of electronic surveillance was made out (para. 88).

[6] The parties to the present application agree that Brown J. correctly summarized the law with respect to an application of this kind. They differ however, in their respective views of the conclusions reached by Brown J. In particular, they differ as to whether the inferences listed above were reasonably available to the issuing justice.

[7] Messrs. Bashir and Muddei make some of the arguments relied on by the applicants in Fazeli; they also make a number of arguments that were not advanced in Fazeli. The applicants challenge the validity of the Authorization on both the facial and sub-facial inquiries.

[8] The applicants emphasize that this court is not bound by the decision of Brown J. They ask the court to conclude that the evidence intercepted pursuant to the Authorization was obtained in breach of their respective rights pursuant to s. 8 of the Charter. They each request that the intercepted communications be excluded from evidence at trial, pursuant to s. 24(2) of the Charter.

[9] The Crown’s position is that the decision on this application should be the same as the decision in Fazeli. The Crown submits that, in his review of the decision of the issuing justice, Brown J. correctly applied the law.

[10] The parties agree that this application will be conducted in two stages. The submissions made to date are only with respect to the alleged breach of the applicants’ respective rights pursuant to s. 8 of the Charter. The application is scheduled to continue on August 15, 2019, for argument, if necessary, on s. 24(2) of the Charter.

Scope of Review

[11] The relevant statutory provision is s. 186(1) of the Criminal Code. It provides that a wiretap authorization may be granted if the justice presiding on the application is satisfied of the following two criteria:

a) that it would be in the best interests of the administration of justice to do so; and

b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

[12] The legal principles relevant to this application are not in dispute. The parties agree that Brown J. correctly stated the law at paras. 13-18 of Fazeli. I therefore need not review the principles in detail.

[13] The reviewing justice begins with a presumption that the issuance of the Authorization was valid. The applicants bear the onus of rebutting that presumption.

[14] The review is not a hearing de novo. The reviewing justice is not to substitute his or her opinion for that of the issuing justice (R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 21, leave to appeal refused, [2010] S.C.C.A. No. 84).

[15] The test applied by the reviewing justice is “whether there is at least some evidence upon which the issuing justice could have granted the authorization” (Fazeli, at para. 18; emphasis in original). The sole function of the reviewing justice is to determine whether there is any basis upon which the issuing justice could grant the wiretap authorization (R. v. Garofoli, [1990] 2 S.C.R. 1421, at p. 1452).

[16] The issues to be determined at this stage of the application are:

1. Did the Affidavit fail to establish reasonable and probable grounds that the wiretap Authorization, if granted, will afford evidence of the offence?
2. If the answer to Issue No. 1 is “no”, did the Affidavit fail to establish the investigative necessity of the use of electronic surveillance?

Issue No. 1 – Reasonable and Probable Grounds

a) The Law

[17] The issuing justice must be satisfied that (a) there are reasonable and probable grounds to believe that a particular offence has been or is being committed, and (b) the authorization will afford evidence of that offence (R. v. Duarte, [1990] 1 S.C.R. 30, at p. 45).

[18] It is undisputed that Det. Benson had reasonable and probable grounds to believe that an offence (the Homicide) had been committed. In their effort to rebut the presumption of the validity of the Authorization, the applicants submit that there were no reasonable and probable grounds for Det. Benson’s stated belief that the Authorization would afford evidence of the Homicide.

[19] The standard for reasonable and probable grounds, in this context, takes into consideration that the issuing justice is asked to authorize an investigative step that permits “[the] state’s interest in detecting and preventing crime…to prevail over the individual’s interest in being left alone” (Hunter v. Southam, [1984] 2 S.C.R. 145, at p. 167). That point is reached if “credibly-based probability replaces suspicion” (Hunter, ibid).

[20] In assessing the evidence, the issuing justice is entitled to draw reasonable inferences from the contents of supporting affidavits. The inferences drawn can relate to criminal conduct and/or the potential for recovery of evidence (R. v. Sadikov, 2014 ONCA 72, at paras. 81-82).

[21] In CanadianOxy Chemicals Ltd. v. Canada (A.G.), the Supreme Court of Canada considered the meaning of “will afford evidence” in the context of authorization for a search warrant pursuant to s. 478(1) of the Code ([1999] 1 S.C.R. 743, at paras. 18, 22). The Court (a) concluded that the phrase must be given a broad and liberal interpretation, and (b) emphasized that to restrictively interpret the phrase would frustrate police in carrying out investigations.

[22] The phrase, “will afford evidence”, applies to the investigation as a whole, not to the individuals targeted by the proposed electronic surveillance (R. v. Mahal, 2012 ONCA 673, at para. 78).

[23] I turn to the positions of the parties as to whether the Affidavit established reasonable and probable grounds that the Authorization would afford evidence of the Homicide/Offences listed at para. 13 of the Affidavit (“the Offences”).

b) The Facial Inquiry

i) The Law

[24] On the facial inquiry, the reviewing judge assumes that the facts set out in the supporting affidavit are accurate and reliable. The test is whether, on its face, the supporting affidavit provides reasonable and probable grounds for the belief that the electronic surveillance proposed will afford evidence of a crime (R. v. Crevier, 2015 ONCA 619, at para. 73).

ii) Positions of the Parties

[25] The applicants submit that the Affidavit is devoid of reasonable and probable grounds. They describe Det. Benson’s evidence as including “baseless and conclusory” statements. They submit that there is no evidentiary support for a conclusion that the investigative plan proposed will lead (a) the targets of the authorization to speak about a homicide that happened 7.5 years earlier, or (b) to evidence of the Homicide.

[26] In response, the Crown submits that the applicants’ arguments are based on an incorrect statement of the law. The Crown submits that the requirement was to satisfy the issuing justice that there were reasonable and probable grounds to believe that the electronic surveillance would afford evidence relating to or concerning the Homicide; not that the individuals intercepted would discuss the Homicide.

[27] The Crown submits that reasonable inferences were available to the issuing justice in support of the existence of reasonable and probable grounds to believe that the electronic surveillance would afford evidence of the Homicide.

iii) Analysis

[28] In the Affidavit, the final substantive statement made by Det. Benson is, “… I believe that being able to intercept and record the private communications of the persons listed at paragraph 13 above, will lead to evidence of the offences listed above.” That statement appears in para. 332 of the 109-page affidavit sworn by Det. Benson. The offences listed at para. 11 of the Affidavit are murder (s. 235 of the Code) and “any conspiracy to commit or attempt or being an accessory after the fact to the commission of or any counselling in relation to the above offences [sic]”.

[29] Det. Benson’s final substantive statement follows a detailed description of the investigation prior to November 30, 2016, when the Affidavit was sworn. The investigation included:

• A two-day, on-site forensic investigation, the results of which included the discovery of four spent bullet casings and two unspent bullet casings;
• Approximately 45 witness interviews of individuals at Bar 56 at the time of the Homicide, individuals who were in receipt of information about the Homicide, or individuals who, in 2011, overheard a conversation involving at least one person believed to have been involved in the Homicide;
• A review of video available from the security cameras of a nightclub that a number of the targets are seen attending prior to going to Bar 56;
• A failed undercover operation with respect to one of the targets (believed to have been part of the group of men who entered Bar 56 and who had some involvement in the Homicide);
• Information gathered from five confidential informers (three informers on May 8, 2009; the fourth informer on September 19, 2012; and the fifth informer on August 1, September 13, and November 17, 2016);
• Three Crime Stoppers tips received in May and June 2009; and
• The offer of a $50,000 reward made in October 2011.

[30] Although not part of the investigation, per se, Det. Benson refers to arrests, in the intervening years and on a variety of charges, of Mr. Bashir, three other men who are believed to have been involved in the Homicide, and Ashley Windebank. Mr. Bashir, for example, was convicted of weapons offences; in 2010, he was sentenced to six years in custody. Mr. Fazeli was arrested on firearm and drug offences. Following a plea of guilty in May 2012, he was sentenced to more than two years in custody. Mr. Bashir, Ms. Windebank, and Mr. Fazeli are targets named in the Affidavit.

[31] At para. 13 of the Affidavit, Det. Benson says:

Based upon the facts deposed in this Affidavit, I believe that an Authorization should be granted to intercept the communications of the following persons whose identities are known at this time, the interception of whose private communications there are reasonable grounds to believe may assist in the investigation of the offences described in paragraph 11 of this Affidavit…

[32] Mr. Bashir’s name is the second in the list of seven names under the heading “Principle Known Persons”. Mr. Muddei’s name is not included in that list. Mr. Bashir’s mobile telephone number is the third of the eight numbers listed as the devices proposed for the interception of communications. No telephone number for Mr. Muddei is listed. No address is listed for either Mr. Bashir or Mr. Muddei.

[33] The goals or objectives of the investigative plan are described by Det. Benson at paras. 33-35 of the Affidavit:

33. The primary goal is to bring those responsible for this offence to justice. Secondarily, it is recognized that other persons may have knowledge of this crime or may have assisted in the commission of the murder. The goals of the investigation are:

34. To identify the person(s) responsible for causing the death of Mohamed Ali as well as obtaining evidence of their participation in the murder and to successfully prosecute them; and

35. To identify any person(s) who acted as a party or an accessory after the fact to the murder of Mohamed Ali, as well as to obtain evidence of their participation.

[34] At para. 39 of the Affidavit, Det. Benson states that the application made in December 2016 was the first Part VI application made with respect to the investigation of the Homicide.

▪ Ongoing Communication Between/With Targets

[35] At paras. 50-51 of his decision in Fazeli, Brown J. concluded that Det. Benson’s evidence was sufficient to support a reasonable inference that, as of 2016, “the targets maintained some contact”. Appreciating his role as a reviewing justice, at para. 57, Brown J. concluded, “I am unable to say that the issuing justice could not have inferred from the circumstances that it was likely that some of the targets maintained an ongoing relationship or connection”.

[36] Addressing that conclusion, the applicants submit that the Affidavit failed to establish a credibly-based probability that (a) the targets continued to communicate with one another in 2016, and (b) communications, if intercepted, would afford evidence of the Homicide. The applicants ask the court not to follow the decision of Brown J.

[37] I agree with the applicants. I find that the Affidavit failed to disclose reasonable and probable grounds that the Authorization would afford evidence of the Homicide.

[38] The evidence in the Affidavit as to communication between or with the targets, subsequent to and about the Homicide, is limited to the following:

• When interviewed by the police in January 2010, Ms. Windebank described being at an apartment (near the intersection of Cooper and Kent Streets) approximately one hour after the Homicide. She overheard a conversation between some of the targets about the Homicide. Ms. Windebank provided similar information when interviewed by the police again in 2014.
• When interviewed in 2010 and in 2014, Ms. Windebank provided information about the gun believed to have been used in the Homicide. During the 2010 interview, Ms. Windebank described facilitating a three-way telephone call between her then boyfriend (Mohamed – not a target) and Mr. Fazeli.
• In a June 2012 interview, Hendrik Alvero-Raoul described hearing a conversation in September 2011 between “Peetie” (Rafat Mohamed—target no. 3) and others about the Homicide. Mr. Alvero-Raoul described “Peetie” as saying that he had killed someone and describing the events at Bar 56 on the night of the Homicide.

[39] When interviewed, Mr. Alvero-Raoul was incarcerated at the Ottawa-Carleton Detention Centre. He told the police that during his incarceration he received a note from “Peetie”. In the note “Peetie” tells Mr. Alvero-Raoul that the former will take care of the latter as long as he does not tell anyone about “Peetie” committing the Homicide.

[40] There is no other evidence in the Affidavit of communication between the targets, or involving any one of them, in which the Homicide is in any way discussed. Assuming that Mr. Alvero-Raoul received the above-described note from “Peetie” in 2012, at least 4.5 years had passed by December 2016, when the wiretap authorization was requested.

[41] Det. Benson’s evidence is that, in 2011-12, as part of an Ottawa Police Service (“OPS”) Guns and Gangs investigation, Ms. Windebank was charged along with Mohamed Mohamed, Mr. Fazeli, and Saed Sheikhdoon (target no. 4). That evidence appears to be the sole basis for Det. Benson’s belief, stated at para. 249 of the Affidavit, that as of November 30, 2016 (when the Affidavit was sworn), Ms. “Windebank continues to maintain contact with this group”.

[42] Det. Benson does not define the term “this group”. The grammatical structure of para. 249 is such that “this group” refers to Messrs. Mohamed, Fazeli, and Sheikhdoon and to no one else.

[43] I agree with the applicants’ description of Det. Benson’s belief, as stated in paras. 249 of the Affidavit, as “bald and conclusory”.

[44] At paras. 89-122 of the Affidavit, Det. Benson describes information provided to the OPS by four confidential informers. Information was received from three of the confidential informers on May 8, 2009—the day after the Homicide. Information from the fourth confidential informer was received by the OPS in September 2012.

[45] All of the information received from the four informers relates to one or more of the targets, their respective involvement in the Homicide or its aftermath, and what happened to the gun involved in the Homicide. Det. Benson’s belief is that all of the information received from the four confidential informers, although received in 2009 and 2012, remained true as of November 2016 when his affidavit was sworn.

[46] None of the information provided by the four confidential informers can be said to be evidence of communication ongoing between or with the targets—whether about the Homicide or at all.

[47] In August, September, and November 2016, the OPS received the following information from confidential informer no. 5:

• That Mr. Bashir had returned to Ottawa and the number for his mobile telephone (August 1);
• The mobile telephone number for Mr. Fazeli (September 13); and
• The mobile telephone numbers for each of Rafat Mohamed (target no. 3) and Christian Thibault (target no. 7) (November 17).

[48] There is no information from any of the confidential informers, including no. 5, to the effect that any two or more of the targets were in contact with one another as of the summer and fall of 2016.

[49] In summary, there is no evidence in the Affidavit which, in and of itself, supports a finding that the targets remained in contact with one another more than (a) 7.5 years subsequent to the Homicide, and (b) 4.5 years subsequent to the date of the most recent discussion about the Homicide (between “Peetie” and Mr. Alvero-Raoul in June 2012).

[50] In the context of this review of the issuing justice’s authorization of the wiretap it is, however, also necessary to consider whether any reasonable inference was available to the issuing justice that the targets remained in contact as of the latter half of 2016.

[51] In Fazeli, Brown J. appears to have been of the view that the passage of time did not detract from the likelihood of an ongoing relationship between the targets. At para. 50, he said, “Both the officer and the issuing justice were entitled to rely on their experience and common sense in concluding that persons who commit crimes together are likely to maintain a level of familiarity and trust with one another that persists after the commission of those crimes”. While I agree with that conclusion generally, I disagree with it in the circumstances of this case.

[52] The passage of 4.5 years from the date on which there is any evidence of communication by one of the targets about the Homicide, without any evidence of ongoing contact between the targets, renders unreasonable an inference that the targets remained in communication with one another as of the latter half of 2016.

▪ Communication Will Afford Evidence

[53] Even if I am wrong with respect to the lack of evidence of ongoing communication between the targets, I find that there is no evidence in the Affidavit to support either a conclusion or a reasonable inference that communication between any two or more, or with any one, of the targets would afford evidence of the Homicide.

[54] The investigative plan described by Det. Benson relies on several different investigative techniques as potential prompts to cause the target(s) to communicate in a way that will afford evidence of the Homicide. I agree with the Crown that defence counsel erred by focussing, at least in part, on the potential for prompts to lead the targets(s) to specifically discuss the Homicide.

[55] That error does not, however, detract from the merit of defence counsel’s respective submissions that there is no credibly-based probability that communication between or with the targets will afford evidence of the Homicide.

[56] Det. Benson acknowledges that the scope of people with whom the targets might discuss the Homicide is very narrow. At para. 180 of the Affidavit, Det. Benson describes (a) how the individuals believed to be involved in the Homicide operate, and (b) why the risk of using an undercover officer is too great to include an undercover operation as part of the investigation.

[57] With respect to the narrow scope of communication, Det. Benson says:

Furthermore I am of the belief that the people involved in the homicide operate within a very close knit circle of associates and friends. This would indicate that they would personally know their co-conspirators before they would do business with them…Since 2009 the subjects of this investigation have been incarcerated for unrelated crimes. It is my belief they have established a group of individuals they trust and I believe would not speak of the serious crime to strangers or new acquaintances outside of their circle of trust.

[58] The Crown argues that the credibly-based probability with respect to communication between the targets themselves is a matter about which the court may take judicial notice. In support of its position, the Crown relies on the decision of Krindle J. in R. v. Pangman, 2000 MBQB 85. In reply, the applicants say that Pangman is distinguishable on its facts; as a result, the passages from that decision upon which the Crown relies are not applicable to the matter before the court. I agree with the applicants.

[59] Pangman includes an application for the exclusion at trial of electronic and video surveillance evidence of 15 accused. The two forms of surveillance were carried out in the holding cell in which the accused were placed following their arrest. The application to conduct both electronic and video surveillance was made the day prior to the date of the arrest.

[60] The accused were arrested, together with 20 other individuals, on gang-related, drug-related, and weapons offences. The crimes with which the accused were charged included conspiracy to commit the offences of trafficking in narcotics and participation in a named criminal organization (the Manitoba Warriors).

[61] In seeking to have the intercepted communications and video surveillance excluded from evidence at trial, the accused alleged breaches of their rights pursuant to ss. 7 and 8 of the Charter. As in the matter before this court, the accused in Pangman conceded that there was evidence before the issuing justice upon which he could reasonably conclude that certain crimes had been committed.

[62] At paras. 33-35 of Pangman, Krindle J. addressed whether the supporting affidavit provided evidence that granting the authorization would afford evidence of the crimes. Krindle J. concluded that the issuing justice had sufficient evidence upon which to conclude that there were reasonable and probable grounds the electronic and video surveillance “will afford evidence of the crime”. He drew the following inference, “It is a reasonable inference that persons who are known to one another and who trust one another are likely to speak to one another about areas of mutual interest and concern” (para. 34).

[63] The accused in Pangman were placed under surveillance within hours of their arrest. In the matter now before the court, the request for a wiretap authorization was made 7.5 years after the date of the Homicide, and 4.5 years subsequent to the most recent date on which there is evidence of communication from one of the targets about the Homicide. The passage of time in that regard is a factor to be considered by the issuing justice (R. v. Bullen, 2016 ONSC 7684, at para. 31).

[64] It was, in part, the structure of the Manitoba Warriors that supported the inference drawn by Krindle J. about the likelihood of communication between the accused (Pangman, paras. 34-35). There is no evidence that either of the applicants is presently a member of a named criminal organization, as were the accused in Pangman.

[65] In summary there is no discreet evidence, no basis for a reasonable inference, nor any basis for judicial notice to be taken in support of a conclusion that the targets would, if communicating with one another, communicate in a way that would afford evidence of the Homicide.

[66] Similarly, there is no discreet evidence, no basis for a reasonable inference, nor any basis for judicial notice to be taken in support of a conclusion that the targets would, in communication with other unknown persons, communicate in a way that will afford evidence of the Homicide. As noted at para. 56, above, Det. Benson acknowledges the very limited extent to which the targets trust other individuals.

▪ Summary

[67] The Affidavit failed to establish reasonable and probable grounds that the wiretap authorization, if granted, would afford evidence of the Homicide.

c) Sub-Facial Inquiry

i) The Law

[68] A sub-facial inquiry is a test of the veracity of the contents of a supporting affidavit. The reviewing justice is taken to the contents of other documents said by the applicants to undermine the reliability of the contents of the supporting affidavit. The role of the reviewing justice is to determine whether, in light of the new information, the supporting affidavit contains “at least some evidence that might reasonably be believed on the basis of which the authorization could have been issued” (R. v. Araujo, [2000] 2 S.C.R. 992, at para. 51).

ii) Positions of the Parties

[69] On the sub-facial inquiry, the applicants ask the court to consider the contents of the Project Proposal. That document was prepared by Det. Benson in September 2016—approximately three months before the Authorization was sought. The Project Proposal was not before the issuing justice; the parties agree that the document is properly before the court for the purpose of this application.

[70] The applicants submit that the contents of the Project Proposal support a conclusion that (a) Det. Benson’s belief that the Authorization will afford evidence of the Homicide is not as strong as stated in the Affidavit, and (b) the true purpose of the electronic surveillance was something other than the investigation of the Homicide. The result of the latter, the applicants submit, is that the police were authorized to carry out a fishing expedition.

[71] On the sub-facial inquiry, the Crown argues that the applicants (a) focus on very limited portions of the Project Proposal, (b) ignore other significant portions of the document, and (c) ignore the contents of the document as a whole. The Crown submits that, the Project Proposal—when read as a whole—adds to the veracity of Det. Benson’s stated belief that the electronic surveillance will afford evidence of the Homicide.

iii) Analysis

[72] In September 2016, Det. Benson prepared a Project Proposal for “Project Resolve” (“the Proposal”). The document is dated September 22, 2016. That date is:

• approximately seven weeks subsequent to the date on which confidential informer no. 5 (a) informed the OPS that Mr. Bashir had returned to Ottawa, and (b) provided the OPS with Mr. Bashir’s mobile telephone number.
• nine days subsequent to the date on which the same confidential informer provided the OPS with Mr. Fazeli’s mobile telephone number; and
• approximately two months before the same confidential informer provided the OPS with the mobile telephone numbers for Rafat Mohamed and Christian Thibault.

[73] The purpose of the Proposal is said to be for the “consideration and approval [of the Criminal Investigation Division of the OPS] in respect of a wiretap application for the purpose of continuing [the] investigation of the murder of Mohamed Ali.”

[74] The applicants point to the final paragraph of the Proposal as evidence that Det. Benson’s beliefs, as expressed, regarding the intercepted communications affording evidence of the Homicide are over-stated. The applicants submit that Det. Benson did not have a subjective belief that the intercepted communications would afford evidence of the Homicide. The applicants point to the wording of the final paragraph of the Proposal; they emphasize Det. Benson’s statement that, “[it] is anticipated that the prompting strategies that will be employed may result in the receipt of information of an evidentiary value”.

[75] The applicants also submit that the final paragraph of the Proposal reveals that Project Resolve’s true purpose was to “disrupt street gangs at the highest level in Ottawa [and] assist in the dismantling of the drug and firearm networks managed by these gang members”.

[76] The Crown argues that the purpose of the Proposal, when read as a whole, is singular and clear—the continuation of the investigation of the Homicide. I agree.

[77] When the Proposal is read as a whole, it is clear that its purpose is the continuation of the investigation of the Homicide. The conclusory paragraphs make general reference to street gang activity in Ottawa. Those references provide context for, but do not detract from, the stated purpose of Project Resolve.

[78] The final paragraph of the Proposal identifies potential benefits to the OPS in their ongoing efforts to address street gang activity. Those benefits are secondary or ancillary to the primary purpose of the Project Resolve.

[79] I find that the phrase quoted above at para. 74 relates to the secondary or ancillary purpose of Project Resolve. Det. Benson’s use of the verb “may” in that context does not detract from his subjective beliefs, as stated in his affidavit, with respect to the primary purpose of the Proposal.

▪ Summary

[80] I reject the applicants’ argument on the sub-facial inquiry.

Issue No. 2 – Investigative Necessity

[81] Given that the applicants succeed on the facial inquiry under Issue No. 1, it is not necessary to determine Issue No. 2.

Disposition

[82] I find that the Affidavit failed to establish reasonable and probable grounds that the wiretap authorization, if granted, would afford evidence of the Homicide. I find that the evidence obtained through intercepted communications was obtained in violation of the rights of each of Mr. Bashir and Mr. Muddei, respectively, pursuant to s. 8 of the Charter.

[83] The application shall continue on August 15, 2019 at 10:00 a.m. for argument with respect to the applicants’ respective requests for exclusion of evidence pursuant to s. 24(2) of the Charter.

Madam Justice Sylvia Corthorn

Released: August 19, 2019

APPENDIX

On page 4, the headings at the bottom of the page have been changed to read as follows and which headings now appear at the top of page 5:

b) The Facial Inquiry

i) The Law

On page 13, paragraph 79 has been amended so that the paragraph referenced in the first line is changed from “73” to “74” and which paragraph now appears on page 14.

On page 14, at paragraph 82 in the first line the word “probably” has been changed to “probable”.