COURT FILE NO.: CR-17-1871
DATE: 2019/08/22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
FAYSAL BASHIR and
SAID MUDDEI
Applicants
Timothy Wightman, for the Crown (Respondent)
Solomon Friedman and Fady Mansour, for the Applicant, Faysal Bashir
Diane Condo, for the Applicant, Said Muddei
HEARD: August 15, 2019
RULING ON PRE-TRIAL APPLICATION
(Part 2—s. 24(2) Charter)
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”); Mohamed Ali was shot and killed while at the Bar 56 night club in Ottawa.
[3] In my ruling on the first part of this application, I found that the affidavit filed in support of the request for a wiretap authorization (“Affidavit”) failed to establish reasonable and probable grounds that the Authorization, if granted, would afford evidence of the Homicide. I concluded that the evidence obtained through intercepted communications was obtained in violation of Mr. Bashir’s and Mr. Muddei’s respective rights pursuant to s. 8 of the Canadian Charter of Rights and Freedoms: see R. v. Bashir and Muddei, 2019 ONSC 4082.
[4] Mr. Bashir and Mr. Muddei request that the evidence obtained through intercepted communications be excluded from evidence at trial. They submit that the admission of the evidence would bring the administration of justice into disrepute.
The Law
[5] The applicants rely on the remedy provided in s. 24(2) of the Charter:
Where … a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[6] The approach to be taken when determining a request made pursuant to s. 24(2) was established by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. Three issues must be considered:
the seriousness of the Charter-infringing state conduct;
the impact of the breach on the Charter-protected interests of the accused; and
society’s interest in the adjudication of the case on its merits.
[7] The court must then balance the assessments made with respect to each issue and determine whether the unlawfully obtained evidence will be admitted or excluded.
[8] In summary, the applicants submit that the balancing exercise required pursuant to s. 24(2) supports the exclusion of the evidence. The Crown argues that the balancing exercise leads to the admission of the evidence. I consider each of the three factors listed in para. 6, above, and turn first to the seriousness of the Charter breach.
1. Seriousness of Charter-infringing State Conduct
a) Positions of the Parties
[9] In Bashir, a finding was made that the police failed to meet the long-standing and well-established standard of reasonable and probable grounds in support of the request for the wiretap authorization. The applicants submit that the seriousness of the state’s Charter-infringing conduct points towards exclusion of the evidence.
[10] The applicants describe Det. Benson as careless in drafting the Affidavit. His carelessness is said to include the use of (a) “bald and conclusory statements” (Bashir, at para. 43) and (b) “common phraseology without turning [his] mind to its application to the specific circumstances of the case” (R. v. Hosie (1996), 1996 CanLII 450 (ON CA), 107 C.C.C. (3d) 385, at para. 27).
[11] The applicants do not allege bad faith on Det. Benson’s part. The applicants submit that the absence of bad faith does not, however, mean that Det. Benson acted in good faith.
[12] The applicants argue that the state conduct falls at the more serious end of the spectrum, thus favouring exclusion of the evidence.
[13] The Crown emphasizes that there is no evidence that Det. Benson deliberately omitted information from the Affidavit or intentionally misled the issuing judge. The Crown submits that Det. Benson acted in good faith. The Crown describes Det. Benson’s conduct as closer to the inadvertent end of the continuum of conduct. The Crown submits that the assessment under this first line of inquiry favours admission of the evidence.
[14] The ruling in Bashir is based on the court’s finding of a lack of reasonable and probable grounds to support the issuance of the wiretap authorization. Given that finding, it was not necessary to address investigative necessity when deciding the first part of this application. The court was, however, aware that it might be necessary to address the issue of investigative necessity on this second part of the application.
[15] The Crown asks the court to (a) conclude that investigative necessity is established by the Affidavit, and (b) consider investigative necessity when assessing the state conduct for the purpose of s. 24(2) of the Charter. The Crown submits that Det. Benson’s good faith conduct together with investigative necessity favour inclusion of the evidence.
[16] The applicants submit that the Affidavit does not establish investigative necessity. They argue that, even if investigative necessity is found, it cannot otherwise save the state’s Charter-infringing conduct under this first line of inquiry. The assessment would still favour exclusion of the evidence.
b) Analysis
[17] The ruling made in Bashir includes that the applicants’ respective rights pursuant to s. 8 of the Charter were breached because:
• There is no evidence in the Affidavit which supports a finding that the named targets (including Mr. Bashir) remained in contact with one another as of late 2016 when the wiretap authorization was issued (para. 49);
• There was no evidence to support a reasonable inference that the named targets remained in communication with one another as of late 2016 (para. 52);
• There was 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 and/or in communication with other unknown persons, communicate in a way that would afford evidence of the Homicide (paras. 65-66).
[18] The absence of reasonable and probable grounds is more than a technical contravention of the standard to be met on an application in support of the issuance of a wiretap authorization. The standard of reasonable and probable grounds is a key safeguard in protecting individual privacy rights. The deficiencies in the Affidavit were serious and significant.
[19] Reasonable and probable grounds were not a new concept to Det. Benson. In the Affidavit, he highlights that:
• he had more than 15 years’ experience as a police officer when he drafted the Affidavit;
• he had been involved in a number of investigations, including wiretap investigations; and
• his responsibilities at the time included drafting affidavits in support of requests for wiretap authorizations.
[20] Det. Benson also highlights his experience with respect to the interception of private communications of unknown persons, and how their communication with named targets can lead to evidence relevant to an investigation.
[21] The various turns of phrase used by Det. Benson provide evidence from which his experience on applications of this kind may be inferred. For example, at para. 249 of the Affidavit, Det. Benson says, “I believe Windebank continues to maintain contact with this group and would be the subject of investigative prompting to gather evidence of the [Homicide]”. Det. Benson continues at para. 250 of the Affidavit with his stated belief that “the interception of [Windebank’s] communication would provide further evidence to [the Homicide]”. Ms. Windebank features prominently in the investigation plan described in the Affidavit.
[22] In Bashir, the court found those statements were “bald and conclusory” and lacking in reasonable and probable grounds (paras. 43, 53, and 65-66). I find that the statements made by Det. Benson at paras. 249 and 250 also include the use of ritualistic phrases.
[23] In Hosie, the Ontario Court of Appeal is critical of reliance on ritualistic phrases. The criticism is of the reliance by the police officer affiant on the phrase “found to be reliable” to describe a confidential informer. Under cross-examination, the affiant admitted that the confidential informer was not a proven informer.
[24] The Ontario Court of Appeal is critical of “[blind] reliance upon ritualistic phrases without regard to the facts of the particular case [which] robs the judicial officer of the ability to perform this vital function in the administration of justice” (Hosie, para. 31). I find that Det. Benson’s reliance on a ritualistic phrase to make a bald and conclusory statement, such as the statement at para. 249 of the Affidavit, warrants the same criticism. For the purpose of this application, it matters not that Det. Benson was referring to a named target as opposed to a confidential informer.
[25] Also troubling is Det. Benson’s frequent reliance on his stated beliefs in the absence of any reasonable and probable grounds in support of those beliefs. I reject, however, the submission on behalf of Mr. Muddei, equating Det. Benson’s stated beliefs to the kind of opinion or advocacy criticized by this court in R. v. Wallace, 2017 ONSC 132, at paras. 88-93.
[26] Det. Benson’s conduct does not fall “just short” of the statutory standard (R. v. Abdirahim, 2013 ONSC 7420). It falls well below the standard of care expected of a police officer deemed by the police force, on which he or she is serving, to be competent to apply for a wiretap authorization.
[27] Through his carelessness or inadvertence, Det. Benson unintentionally misled the issuing judge on the issue of reasonable and probable grounds. While I do not find that Det. Benson acted in bad faith, that lack of bad faith cannot ground a finding of good faith (R. v. Szilagyi, 2018 ONCA 695, 142 O.R. (3d) 700, at para. 55).
[28] I turn briefly to the issue of investigative necessity. I agree with the applicants that the Charter-infringing state conduct in this matter cannot be saved by investigative necessity, even if found.
[29] To conclude that investigative necessity, if found, moves the state conduct from the more serious to the less serious end of the continuum would, in the circumstances of this case, result in watering down the importance of the existence of reasonable and probable grounds in support of a wiretap authorization.
▪ Summary
[30] The Charter-infringing state conduct falls at the more serious end of the spectrum.
2. Impact of Breach on [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)-Protected Rights
[31] In Bashir, the court found that the applicants’ respective rights to be secure against unreasonable search and seizure (s. 8 of the Charter) were breached. At the heart of s. 8 is the protection of an individual’s privacy interests.
[32] Both in its factum and during oral submissions, the Crown conceded that:
• The interception of private communications intrudes significantly upon an individual’s privacy interests; and
• The assessment under the second Grant factor favours exclusion of the evidence.
[33] The applicants highlight that the intrusion into their respective rights to privacy was not fleeting; their private communications were intercepted for 103 days. The applicants submit that the breach of their respective privacy rights was much more than minor.
▪ Summary
[34] The unlawful interception of the private communications had a serious impact on the privacy rights of each of the applicants. The assessment under this line of inquiry favours exclusion of the evidence.
3. Society’s Interest in Adjudication of the Case on its Merits
[35] Under this line of inquiry, Mr. Bashir and Mr. Muddei are in slightly different positions. The Crown’s position is that the exclusion of the evidence against Mr. Muddei has a more significant negative impact on the strength of the Crown’s case against him than would the exclusion of the evidence against Mr. Bashir on the strength of the Crown’s case against him.
[36] I am not the trial judge. As a result, there would be minimal prejudice, if any at all, to the parties, if evidence of the intercepted communication formed part of the record before the court. The parties agree, however, that it is not necessary for that evidence to be before the court on the application. The parties agree that the evidence includes admissions on the part of the applicants—whether explicit or by way of inference. As counsel for Mr. Bashir described it, the intercepted communications include “serious evidence” against the applicants.
a) The Law
[37] The test to be applied in balancing the assessments under each of the three Grant factors is an objective one: Would “a reasonable person, informed of all relevant circumstances and the values underlying the Charter … conclude that the admission of the evidence … [brings] the administration of justice into disrepute” (Grant, para. 68)? The focus is on the long-term and whether the admission of evidence obtained in breach of a Charter right would adversely affect the overall reputation of the justice system (Grant, paras. 68-70).
b) Positions of the Parties
[38] The applicants submit that where the assessments under both the first and second Grant factors favour exclusion of the evidence, the assessment under the third Grant factor should not tip the overall outcome towards admission of the evidence. The applicants rely on para. 63 of the decision of the Ontario Court of Appeal in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643:
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence [citations omitted]. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility [citations omitted]. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see, e.g., Grant, at para. 140.
[39] The Crown describes the evidence obtained through the interception of the applicants’ respective private communications as real and non-conscriptive. The evidence is said to be highly reliable and available in both audio and transcript form.
[40] The Crown submits that the outcome of the charges against each of the applicants will turn on identification. In the case against Mr. Bashir, identification evidence is available independent of the admissions found in the intercepted communications. One of the alleged victims of the robbery and assault is said to be able to identify Mr. Bashir as one of the assailants. The Crown describes that individual, Mr. Tha, as having a lengthy criminal record. As a result, the Crown anticipates that Mr. Tha’s credibility will be seriously tested.
[41] The Crown acknowledges that, if the evidence is excluded, its case against Mr. Bashir will not be gutted; the case against Mr. Bashir will, however, be weakened.
[42] The Crown argues that the case against Mr. Muddei, on the other hand, will be gutted if the evidence is excluded. There is no identification evidence with respect to Mr. Muddei, other than as found in the intercepted communications.
[43] In summary, the Crown submits that under the third Grant factor and in the overall balancing of the three factors, admission of the evidence is favoured with respect to both of the applicants.
c) Analysis
[44] Although exclusion of the evidence potentially has a different impact on the Crown’s respective cases against Mr. Bashir and Mr. Muddei, I conclude that for both of the applicants, the evidence shall be excluded.
[45] In McGuffie, Doherty J.A. identified a number of factors that contributed to his decision that the subject evidence should, at trial, have been excluded pursuant to s. 24(2). Before turning to those factors, I note that the Charter breaches in McGuffie were more numerous than those in the present case. The breaches in McGuffie included a strip search in contravention of s. 8 and breaches under ss. 9 and 10(b). The breaches were said by Doherty J.A. to fall at the “very serious end of the continuum described in Grant” (para. 76).
[46] On the present application, the breach of the applicants’ respective Charter rights is found to be at the “more serious” end of continuum. A number of the factors identified by Doherty J.A. are relevant to this application:
• The failure of Det. Benson to adhere to the standard of reasonable and probable grounds is “not a situation in which the police conduct slipped barely over the constitutional line” (McGuffie, para. 77);
• There are no extenuating circumstances to explain why the Affidavit was drafted as it was (McGuffie, para. 77);
• The manner in which the Affidavit was drafted amounts to more than a technical or minor breach of the applicants’ respective rights pursuant to s. 8 of the Charter (McGuffie, para. 79);
• The disregard shown by the police for the applicants’ respective rights of privacy is such that, “The only way the court can effectively distance itself from that conduct is by excluding the evidentiary fruits of that conduct” (McGuffie, para. 78).
[47] In McGuffie, the appeal from conviction was allowed and an acquittal was entered on all counts (para. 85). Doherty J.A. described the acquittal of a person, who is clearly guilty of a crime, that results from the exclusion of unlawfully obtained evidence as an “unpalatable result” that results directly from the manner in which the police choose to conduct themselves (para. 83).
[48] The Crown’s case against Mr. Bashir will not necessarily fail because of the exclusion of the intercepted communications. If the exclusion of the evidence results in the Crown’s case against Mr. Muddei being gutted, then that is the result of the manner in which the police chose to conduct themselves during the investigation of the Homicide.
▪ Summary
[49] With the first two Grant factors favouring the exclusion, it is unlikely that the third factor would tip the balance in favour of admission of the evidence (McGuffie, at para. 63). In any event, I find that the third Grant factor also favours exclusion of the evidence. The individual privacy rights of the applicants must be taken seriously. The serious Charter-infringing state conduct with respect to the Authorization is not condoned. These factors outweigh the impact of exclusion of the evidence on the strength of the Crown’s case against each of the applicants.
[50] I am satisfied that when the prospective view is taken of state conduct in this case, for both Mr. Bashir and Mr. Muddei, the admission of the evidence would adversely affect the overall reputation of the justice system.
Conclusion
[51] The intercepted communications obtained from the wiretap authorization obtained in December 2016 shall be excluded from evidence at the trial of the applicants on the offences described in paragraph 1 of this ruling.
Madam Justice Sylvia Corthorn
Released: August 22, 2019
COURT FILE NO.: CR-17-1871
DATE: 2019/08/22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
FAYSAL BASHIR and SAID MUDDEI
Applicants
RULING ON PRE-TRIAL APPLICATION
Madam Justice Sylvia Corthorn
Released: August 22, 2019