COURT FILE NO.: CR-18-10000196-0000
DATE: 20190922
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SIFFEDINE BILACHI AND NACIM HAMOUNI
D. Mitchell, for the Crown
I. McCuaig, for Mr. Bilachi
D. Embrey, for Mr. Hamouni
s.a.Q. akhtar j.
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] Sifeddine Bilachi and Nacim Hamouni are accused of committing various offences related to human trafficking.
[2] Mr. Hamouni brings an application pursuant to s. 8 of the Canadian Charter of Rights and Freedoms alleging that his right to be protected against unreasonable search and seizure was violated. He alleges the Information to Obtain a Search Warrant (ITO), which led to a warrant authorising the search of his mobile phone (seized by police upon arrest), was deficient of reasonable and probable grounds.
[3] For the following reasons, the application is dismissed.
Background Facts
[4] On 6 November 2016, the complainant, hereinafter referred to as “C”, contacted police to report allegations of human trafficking committed by Mr. Bilachi.
[5] During the police investigation, it came to light that C worked for Mr. Bilachi as a sex trade worker. C told the police that she had reached an agreement with Mr. Bilachi to provide sexual services for clients he procured on the basis that she receive half of the remuneration paid by those clients.
[6] C explained that Mr. Bilachi made extensive use of his mobile phone to advertise her services, contact potential clients, set payment rates, and book locations to meet with clients. C added that Mr. Bilachi did not work alone: another person, Mr. Hamouni – whom she referred to as “Stephanie” – assisted in the venture, attending hotels and collecting payments.
[7] C indicated that Mr. Bilachi never gave her any of her earnings, instead retaining the entire amount with Mr. Hamouni. Subsequently, she had been forced into providing sexual services and turning over any money she received to both accused.
[8] Mr. Bilachi and Mr. Hamouni were stopped travelling eastbound on Highway 401 and found to be in possession of a large amount of cash as well as individual mobile phones which were seized incident to arrest. One of those devices, a silver/gold Huawei phone, was found on Mr. Hamouni. In addition, the police found two ASUS tablets and a black, cracked iPhone.
[9] The officer in charge of the case, Tracey Curtis, prepared an ITO to examine the devices found in the car, resulting in a search warrant being issued on 9 May 2017.
Position of the Parties
[10] Mr. Hamouni brings an application to exclude any evidence obtained through search of the silver/gold Huawei phone seized from him upon arrest. He argues that the ITO used to obtain the warrant authorising a search of his phone was deficient.
[11] According to Mr. Hamouni, the police had no reasonable and probable grounds to believe that evidence relating to human trafficking would be found on his Huawei phone.
[12] As a result, he claims that his s. 8 Charter rights were breached and that any evidence obtained as a result of that breach must be excluded at trial.
[13] Mr. Bilachi does not allege a breach of his s. 8 rights.
[14] In response, the Crown submits that there was sufficient information in the ITO for the issuing justice to properly authorise the warrant.
WAS THE WARRANT PROPERLY ISSUED?
The Information to Obtain the Warrant
[15] Officer Curtis utilised information given by C as the basis for seeking the warrant with the following information used as grounds to search the phone:
• C was forced into performing as a sex trade worker by two men known as “Alpha” and “Stephanie”
• These two men could be identified as Mr. Bilachi (Alpha) and Mr. Hamouni (Stephanie)
• C had provided a description of Mr. Bilachi’s vehicle, which was the same car that he had been driving when arrested
• C did not keep any of the money earned through the provision of sexual services
• C was fearful of Mr. Hamouni who she had seen wearing a Montreal Police uniform
• C felt intimidated by Mr. Hamouni as he had threatened her in the past
• When C was assaulted by Mr. Bilachi, Mr. Hamouni was waiting in his car
• Mr. Hamouni also drove Mr. Bilachi’s vehicle
• The black iPhone belonging to C was found inside the vehicle
[16] Mr. Bilachi used his phone extensively to further the human trafficking activity in which C was involved by posting advertisements on Backpage.com, setting rates for the services to be performed, and responding to inquiries from potential clients
[17] Officer Curtis indicated that she had participated in numerous human trafficking investigations all of which involved the use of mobile phones and/or computers for the purpose of committing the offences.
Legal Principles
[18] An ITO is presumed to be valid and the onus of establishing its invalidity in a Charter application rests upon the party challenging it: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 83.
[19] The review of a judicially authorised warrant does not involve a fresh hearing of the validity of the warrant permitting the reviewing judge to substitute their view for that of the authorising judge. The review consists of the evaluation of the record which was before the authorising judge in order to determine whether it disclosed sufficient evidence upon which the judge could have issued the authorisation: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40; R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 99, leave to appeal to SCC refused, 34705 (28 June 2012). Any facts that the affiant knew or ought to have known were inaccurate must be excised from the ITO and cannot be considered: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at paras. 119-121.
[20] In order to persuade an issuing justice to authorise a warrant, the ITO upon which it is founded must set out reasonable and probable grounds to believe an offence has been committed and that evidence relating to that offence will be found at the place to be searched: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 168.
[21] The party challenging the warrant must establish that there was no basis upon which the authorising judge could have issued the warrant in order for it to be invalid: R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 8. When deciding the issue, the reviewing judge must look at the totality of circumstances set out in the ITO to determine whether the police had made out reasonable and probable grounds that evidence of the offence would be found on the items proposed to be searched: R. v. Chor-Yin Choi, 2013 ONSC 291, at para. 37; Sadikov, at paras. 82, 88.
Was the Warrant Validly Issued?
[22] From the circumstances set out above, the police clearly had information that Mr. Hamouni and Mr. Bilachi were working in concert to ensure that the complainant provided sexual services for paying customers. The ITO also made clear that Mr. Bilachi used his phone in a number of different ways to facilitate the provision of those services. The affiant indicated that in her experience working with Human Trafficking Enforcement since 2014 she had seen mobile phones and computers used to promote the business of human trafficking. That experience is a factor that the issuing justice was entitled to take into account when assessing reasonable and probable grounds: R. v. Brown, 2012 ONCA 225, 286 C.C.C. (3d) 481, at para. 13.
[23] Whilst I agree that experience alone is not a sufficient basis to justify reasonable grounds, the context in which the offences occurred do provide reasonable and probable grounds to believe that evidence would be found on Mr. Hamouni’s mobile phone, especially given C’s information of his integral involvement and her account of Mr. Bilachi’s mobile phone use.
[24] The applicant’s main complaint is that there were no other factors specified in the ITO suggesting Mr. Hamouni used his mobile phone as part of the commission of the offence thereby lending weight to the reasonable and probable grounds that evidence would be found on it if searched. Absent such evidence, argues Mr. Hamouni, there were insufficient grounds to issue a warrant to search his phone.
[25] I disagree with such a narrow interpretation of the law.
[26] As I have noted, it is undisputed that the police had information, referenced in the ITO, that Mr. Bilachi used his phone as part of the commission of the offences. It would seem to me that police armed with the information that Mr. Bilachi used his phone extensively to further his human trafficking activities and worked with Mr. Hamouni to conduct these offences could furnish reasonable grounds to believe that Mr. Bilachi communicated with Mr. Hamouni with respect to the commission of the offences. Accordingly, the police had more than reasonable grounds to believe that evidence was contained on Mr. Hamouni’s phone.
[27] The use of mobile phones to further criminal activity has been recognised by the Supreme Court of Canada who, in R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 48, made the following observation:
Beyond the facts of this case, there are other types of situations in which cell phone searches conducted incidental to a lawful arrest will serve important law enforcement objectives, including public safety. Cell phones are used to facilitate criminal activity. For example, cell phones "are the 'bread and butter' of the drug trade and the means by which drugs are marketed on the street": Howell, at para. 39. Prompt access by law enforcement to the contents of a cell phone may serve the purpose of identifying accomplices or locating and preserving evidence that might otherwise be lost or destroyed. Cell phones may also be used to evade or resist law enforcement. An individual may be a "scout" for drug smugglers, using a cell phone to warn criminals that police are in the vicinity or to call for "back up" to help resist law enforcement officers: see, e.g., United States v. Santillan, 571 F.Supp.2d 1093 (D. Ariz. 2008), at pp. 1097-98. In such situations, a review of recent calls or text messages may help to locate the other perpetrators before they can either escape or dispose of the drugs and reveal the need to warn officers of possible impending danger.
[28] In my view, this analysis applies equally to the acts of human trafficking.
[29] For these reasons, I find that the warrant was properly issued and the s. 8 application accordingly fails.
S.A.Q. Akhtar J.
Released: 22 September 2019
COURT FILE NO.: CR-18-10000196-0000
DATE: 20190922
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SIFFEDINE BILACHI AND NACIM HAMOUNI
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.