Court File and Parties

Court File No.: CR-18-1343 Date: 2019-09-30 Ontario Superior Court of Justice

Between:

Her Majesty the Queen – and – Garren Brown, Brian Stewart, Donovan Brown & Wayne Blackwood

Counsel:

Mr. R. Visca & Ms. B. Crackower, for Crown / Respondent Mr. M. Mattis, for Garren Brown, Accused Mr. M. Little & Ms. J. Casey, for Brian Stewart, Accused Ms. E. Jamshidi, for Donovan Brown, Accused Ms. A. Ruffo & Mr. C. Tarach, for Wayne Blackwood, Accused / Applicant

Heard: June 24, 2019

Ruling on Wayne Blackwood's Application pursuant to sections 8 and 24(2) of the Charter

Stribopoulos J.:

Introduction

[1] As the designated case management judge, these are my reasons concerning an application brought by Wayne Blackwood, the Applicant, pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms.

[2] The indictment charges the four accused with a variety of offences, including a count that jointly charges them with conspiracy to import a controlled substance. The Crown alleges the accused were participants in an ongoing scheme to smuggle cocaine into Canada hidden inside baggage aboard flights arriving at Toronto's Pearson International Airport (TPIA) from locations in the Caribbean. Some accused are alleged to have orchestrated the importations. Others, including the Applicant, are alleged to have exploited their employment at the airport to offload drugs from planes and then remove them from the airport.

[3] The same indictment also charges the Applicant alone with additional offences. These include two counts of importing cocaine into Canada, possessing both cocaine and marihuana for the purpose of trafficking, possessing the proceeds of crime, and three firearms-related offences.

[4] The charges resulted from a police investigation that lasted approximately sixteen-months. During the investigation, police obtained judicial authorizations to employ a host of investigative measures targeting various individuals. Eventually, three authorizations issued to intercept private communications, the first on February 16, 2017, the second on April 7, 2017, and a third on June 6, 2017. These last two authorizations resulted in the interception of the Applicant's private communications which the Crown intends to proffer as evidence at trial. (Although the first authorization listed the Applicant as an "Other Known Person," none of his private communications were ultimately intercepted under its authority.)

[5] The Applicant was arrested on June 29, 2017. That day, police also executed search warrants at two separate addresses in the City of Toronto, one of which was the Applicant's residence. Amongst other grounds, each information sworn to obtain these search warrants made extensive reference to private communications involving the Applicant intercepted under the authority of the June 6, 2017 authorization. The execution of these search warrants led to the seizure of controlled substances, currency, and a firearm. The Crown intends to proffer all of this evidence at trial.

[6] The Applicant claims that all of this evidence (his private communications, the controlled substances, the currency, and a firearm), was obtained in violation of his s. 8 Charter right to be secure against unreasonable search or seizure. Consequently, he seeks an order excluding this evidence under s. 24(2) of the Charter.

[7] These reasons will proceed in three parts. The first part will summarize in general terms the positions of the parties. The second part will briefly outline the standard for reviewing the issuance of authorizations and search warrants. In the third part, each of the Applicant's claims will be analyzed with reference, as necessary, to the record on this application, the specific submissions made by the parties, and the governing legal principles.

I. Positions of the Parties on this Application

[8] To better appreciate each of the issues the court must address, it is helpful at this stage to have a general understanding of the positions of the parties on this application. In due course, these reasons will set out in greater detail the submissions made by the parties concerning each specific issue.

[9] The Applicant submits that each of the affidavits sworn to obtain the authorizations to intercept private communications were deficient. With respect to the affidavits sworn to obtain the April 7, 2017 and June 6, 2017 authorizations, the Applicant makes four principal claims.

[10] First, he relies on the submissions made on behalf of Garren Brown. By way of a separate application, Brown challenged both the February 16, 2017, and April 7, 2017 authorizations. He argued that after the excision of misleading and erroneous information from the supporting affidavits, the grounds that remain would be deficient. Further, that the affidavits reveal a systematic effort to mislead the issuing justice and that the authorizations should also be set aside on that basis.

[11] Second, concerning the February 16, 2017 authorization, the Applicant claims that the supporting affidavit did not justify the interception of his private communications as a "known" person under s. 186(4)(c) of the Criminal Code.

[12] Third, the Applicant also argues that the affidavits sworn to obtain the April 7, 2017 and June 6, 2017 authorizations did not make the necessary showing of investigative necessity.

[13] Finally, he submits that these same affidavits did not disclose reasonable and probable grounds to believe that intercepting his private communications would furnish evidence of the crimes that police were investigating.

[14] Given all of this, says the Applicant, it follows that police intercepted his private communications unlawfully and in violation of his s. 8 Charter right to be secure against unreasonable search or seizure.

[15] The Applicant also challenges the constitutionality of the searches that took place at the two Toronto addresses. In doing so, he attacks the search warrants that ostensibly authorized these searches on two bases.

[16] First, he submits that his intercepted private communications were instrumental in securing both search warrants. If successful in challenging the authorizations, then any references to his private communications would need to be excised from each information sworn to obtain the search warrants. What remains, he says, would not be enough to justify the issuance of either search warrant.

[17] Second, the Applicant claims that the information sworn to obtain the search warrant for his residence was deficient in other respects. He argues it did not demonstrate reasonable grounds to believe that most of the items police were authorized to search for would be present in his residence or afford evidence of the offences police were investigating.

[18] As a consequence, the Applicant claims that the searches at both Toronto addresses violated his s. 8 Charter right to be secure against unreasonable search or seizure.

[19] Finally, the Applicant submits that the evidence obtained by police as a consequence of the various constitutional breaches he alleges should be excluded under s. 24(2) of the Charter. He argues that the affiant unfairly characterized the evidence to justify the issuance of the authorizations, making the state misconduct occasioning the Charter breaches serious. He also argues that there was a significant impact on his constitutionally protected privacy interests, involving both his private communications and his residence. Finally, he emphasizes the public interest in having a justice system above reproach in a case like this, where the penal stakes for the accused are high. Given all of this, the Applicant argues that the unconstitutionally obtained evidence should be excluded because its admission would bring the administration of justice into disrepute.

[20] The Crown denies that the Applicant has established any violations of his s. 8 Charter right to be secure against unreasonable search or seizure, disputing each of the claims he advances on the application.

[21] First, the Crown submits that there is no basis for concluding that the affidavits to obtain the February 16, 2017, and April 7, 2017 authorizations contained false or misleading information. It follows, that there is no foundation to the claim that the affiant deliberately misled the issuing justice. Therefore, there is no reason to excise any of the information found in the supporting affidavits.

[22] Second, the Crown submits that the affidavits satisfied the essential preconditions for the issuance of the authorizations. They demonstrated the existence of both reasonable and probable grounds and investigative necessity. More specifically, they also provided reasonable and probable grounds to believe that the interception of the Applicant's private communications would furnish evidence of the crimes that police were investigating. Given all of this, the Crown submits that the interception of the Applicant's private communications was lawful and did not occasion any violation of his s. 8 Charter rights.

[23] Third, although the Crown concedes that the Applicant's intercepted private conversations were instrumental to the issuance of the search warrants, it maintains there is no basis for excising these references from the informations sworn to obtain them. Further, the Crown argues that the informations demonstrated reasonable grounds to believe that the items police were authorized to search for would afford evidence of the offences police were investigating and be present in the locations to be searched.

[24] Finally, even assuming a violation of the Applicant's s. 8 Charter right, the Crown argues that the circumstances do not justify exclusion of the evidence under s. 24(2). In that regard, the Crown argues that the impugned searches and seizures were all carried out under the authority of judicial authorizations. Given this, the Crown submits that in all of the circumstances the admission of the evidence would not bring the administration of justice into disrepute.

II. The Standard of Review

[25] A search or seizure carried out with prior judicial authorization is subject to a presumption of validity. On review, the accused shoulders the burden of rebutting that presumption and establishing that there has been non-compliance with the law's requirements: see R. v. James, 2019 ONCA 288, at para. 19; R. v. Sadikov, 2014 ONCA 72, at para. 83; R. v. Arsenault, 2009 NBCA 29, at para. 5.

[26] In reviewing the adequacy of either the affidavit to obtain an authorization to intercept private communications or the information to obtain a search warrant, the role of the judge conducting the review is limited. It is not the function of the reviewing judge to rehear the original application. As the Supreme Court of Canada explained in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at p. 1452:

The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.

[Emphasis added]

[27] Over the intervening years, the Supreme Court has reaffirmed the approach set down in Garofoli: see R. v. Araujo, 2000 SCC 54, [2000] 2 S.C.R. 992, at para. 51; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. Further, although Garofoli dealt with an authorization to intercept private communications, the very same approach applies where there is a challenge of the decision to issue a conventional search warrant: see R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223, at p. 251; R. v. Wiley, 1993 CanLII 69 (SCC), [1993] 3 S.C.R. 263, at pp. 273-74.

[28] The reviewing judge's circumscribed role does not mean that the review is based only on the information that was before the issuing judge. It takes place "on the record which was before the authorizing judge as amplified on the review": Garofoli, at p. 1452 (emphasis added). Amplification ensures that the review is undertaken in context: Araujo, at paras. 53-54. That said, amplification is not without its limits. As the Supreme Court of Canada cautioned in Araujo, at paragraph 59:

The danger inherent in amplification is that it might become a means of circumventing a prior authorization requirement. Since a prior authorization is fundamental to the protection of everyone's privacy interests ... amplification cannot go so far as to remove the requirement that the police make their case to the issuing judge, thereby turning the authorizing procedure into a sham. On the other hand, to refuse amplification entirely would put form above substance in situations where the police had the requisite reasonable and probable grounds ... but had, in good faith, made some minor, technical error in the drafting of their affidavit material.

Amplification evidence, as Morelli stressed, at para. 42, "is not a means for the police to adduce additional information so as to retroactively authorize a search that was not initially supported by reasonable and probable grounds."

[29] Amplification aims to ensure that the review is based only on what should have been before the issuing justice. If the amplified record reveals that false, misleading or unconstitutionally obtained information was before the issuing justice, then it must be excised: see Araujo, at paras. 54-58; Grant, at p. 251; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281 at p. 291; R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8 at pp. 23-24. At the same time, if the police made a good faith mistake resulting in some "minor, technical error in the drafting" of the supporting affidavit, this too should be corrected: see Araujo, at paras. 57-59; Morelli, at para. 43.

[30] Once amplification is complete, with the removal of improperly included information and corrections for minor, technical drafting errors, the question for the reviewing judge remains a narrow one. That being, "whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge.": Araujo, at para. 54 (emphasis in original); see also Morelli, at para. 40.

[31] The reviewing court's deferential role is not without its limits. Decisions from the Court of Appeal for Ontario recognize that judges possess a residual discretion to set aside an authorization or warrant that might otherwise survive amplification. Exercising that authority would require the reviewing judge to be satisfied that the police engaged in conduct meant to subvert the integrity of the prior authorization process. For example, imagine the police deliberately fail to disclose material information, act in bad faith, engage in deliberate deception, or make fraudulent misrepresentations. Conduct of that kind could convince the reviewing judge that it is necessary to set aside the resulting authorization or warrant to protect the integrity of the prior authorization process: see R. v. Paryniuk, 2017 ONCA 87, leave to appeal refused [2017] S.C.C.A No. 81, at paras. 66-70; R. v Saikaley, 2017 ONCA 374, leave to appeal refused [2017] S.C.C.A. No. 284, at paras. 74-75; R. v. Vivar, 2009 ONCA 433, at para. 2; R. v. Kesselring (2000), 2000 CanLII 2457 (ON CA), 145 C.C.C. (3d) 119 (Ont.C.A.), at para. 31.

[32] With these governing principles in mind, these reasons turn next to analyze the various claims that the court must decide on this application.

III. Analysis of the Applicant's Claims

[33] At various points during their investigation, the police received judicial authorization to employ a host of investigative measures targeting many other individuals. As already explained, the Applicant raises claims relating to the authorizations and search warrants that eventually issued involving him. Each of the Applicant's claims will be addressed in turn.

A. Could the February 16, 2017 Authorization to Intercept the Applicant's Private Communications Validly Issue?

[34] The first reference to the Applicant came in the affidavit sworn to obtain the authorization of February 16, 2017. The affiant did not seek authorization to intercept the Applicant's private communications at any specific locations or on any particular communication devices. Rather, he was included in a list of "Other Known Persons" and authority was granted to intercept any private communications between him and a list of "Principle Known Persons."

[35] Ultimately, the police did not intercept the Applicant's private communications under the authority of that authorization. Nevertheless, the Applicant challenges his inclusion as a "known" person in this authorization.

[36] Given that none of the Applicant's private communications were intercepted under the February 16, 2017 authorization, I confess to struggling to understand the practical significance of him being named a "known" person. That said, there is at least the possibility that the Applicant's improper inclusion could have some bearing on the court's ultimate analysis under s. 24(2) of the Charter. Given this, along with the fact that the parties argued the issue, and that it forms part of the investigative chronology relating to the Applicant, I will address the issue of his naming in the February 16, 2017 authorization.

i) Grounds for the February 16, 2017 Authorization

[37] In the affidavit sworn to obtain the February 16, 2017 authorization, the affiant detailed the investigation until that point. A very general summary of that aspect of the supporting affidavit is needed, to put the specific grounds relating to the Applicant in proper context.

[38] The investigation that culminated in the Applicant being arrested and charged began around February 28, 2016, when authorities seized 90.45 kg of cocaine from a Copa Airlines flight that arrived at TPIA from Panama. Before its arrival, the RCMP received information about this substantial cocaine shipment from two sources. First, from the Jamaican Major Organized Crime and Anti-Corruption Agency, which shared information gleaned from conversations intercepted during their investigation of a Jamaican national. Second, from a confidential police informant who eventually waived privilege and began actively assisting with the investigation by serving as a police agent.

[39] After that initial cocaine seizure, the RCMP began an investigation. Throughout, the police were receiving information from the agent, who was meeting directly with one of the suspects who claimed to be involved in orchestrating the cocaine importations; Mark Chodkiewicz. Eventually, the police obtained a series of third-party consent authorizations, enabling them to record conversations between Chodkiewicz and the agent.

[40] These recorded conversations proved invaluable to the police, allowing them to identify other suspects who also then became the focus of their investigation. The police also relied on other investigative sources, including informants, surveillance, and conversations intercepted during other ongoing police investigations involving some of the same suspects. Based on all of this, the police came to believe that there was an ongoing scheme to import cocaine into Canada aboard flights arriving at TPIA through the use of corrupt airport workers. The police had reason to believe the group was importing cocaine hidden within backpacks concealed within suitcases, a method they referred to as "suit and tie".

[41] By the summer of 2016, the police believed they had identified the ringleaders of the scheme. However, their efforts to identify the airport workers remained ongoing. To that end, an undercover police officer had been working as a baggage handler at TPIA for a year. The undercover officer became familiar with many of the baggage handlers and their work.

[42] In July 2016, to obtain further evidence against the suspected ringleaders and to also identify the airport workers involved, the police developed an investigative ruse. The agent told Chodkiewicz that he knew a group that was importing drugs into Canada using trucks. The agent claimed that the group wanted to partner with Chodkiewicz and his group because they were interested in expanding into importations using aircraft. During recorded conversations that continued throughout the summer and fall of 2016, the agent shared details of his criminal group with Chodkiewicz.

[43] The agent introduced a cast of characters during his discussions with Chodkiewicz. These included "Benjamin," the "money guy" who could transfer sums of money to various countries. There was "the Serbian," the head of an importation group that uses transport trucks to import cocaine and who was looking to expand his operation into importations using aircraft. And, finally, there was "Moses," a trucker involved with the group.

[44] To substantiate the existence of the agent's importing group, the agent facilitated a meeting between Chodkiewicz and "Moses" (an undercover police officer), in late November 2016. The pretext of the meeting was unrelated to the importing scheme, a chance for Chodkiewicz to purchase power tools from "Moses" purportedly stolen by him from a trucking shipment. In December 2016, Chodkiewicz and "Moses" met again, on their own, this time to discuss the purchase of stolen construction materials. Although construction materials were the main focus of their discussion, they also discussed aspects of the drug trade.

[45] Ultimately, Chodkiewicz and the agent (on behalf of his group), reached an agreement to begin importing cocaine together through TPIA. Under its terms, the two groups would split everything, including assuming an equal share of the risk if shipments were lost to interdiction. They also agreed to share equally in paying the fee of the airport workers who offloaded the drugs, consisting of a 30 percent share of any shipments they offloaded. The airport workers would either be paid in cash or through cocaine, with the latter being their preferred method of payment. During their discussions, Chodkiewicz proposed a "test load." The delivery of a suitcase, not containing drugs, by which his group would demonstrate to the agent's group that they were capable of facilitating importations through TPIA.

[46] By December of 2016, Chodkiewicz and the agent were discussing the logistics of the test load. The agent paid Chodkiewicz $5,000, as a fee for the test load. Eventually, they agreed to the offloading of a suitcase from a particular flight arriving at TPIA from Aruba on January 28, 2017. The agent shared an image of the bag with Chodkiewicz in advance of the shipment. Unbeknownst to Chodkiewicz and his group, the test bag was loaded aboard the flight in Aruba by an undercover police officer.

[47] At 9:29 p.m. on January 28, 2017, the flight from Aruba containing the test load suitcase arrived at TPIA. Earlier that day, Chodkiewicz had sent the agent a text message on WhatsApp advising that there were two airport workers associated with his group who would be working the test load flight. He reported that one was scheduled to work until 1:00 a.m., while the other would be coming in on an overtime shift. The undercover police officer who was working as a baggage handler also participated in offloading the test load flight.

[48] Two days after the test load flight, on January 30, 2017, a police officer conducting surveillance saw Chodkiewicz place a reusable shopping bag into the bed of the agent's truck. The police retrieved the bag, which was found to contain the contents of the test load bag, with the exception of one item. The test load demonstrated that Chodkiewicz and his group could remove baggage from an incoming flight at TPIA and get it out of the airport without detection.

[49] The affidavit sworn to obtain the February 16, 2017 authorization also set out specific grounds relating to the Applicant's involvement. By way of summary, this included:

• Rumour shared by an Informant - On [edited month and day] 2016, a confidential informant shared a rumour with the police. According to the rumour, CBSA seized drugs from a Copa Airlines flight several weeks before, and Wayne Blackwood was supposed to have offloaded the drugs from that flight. The police checked the seizure history for Copa Airlines flights at TPIA since February 28, 2016, and there had been no seizures since that flight. Accordingly, the affiant concluded that the rumour related to the February 28, 2016 seizure of 90.45 kg of cocaine.
• Details about the Informant – Details regarding the Informant were set out in a confidential appendix to the affidavit. The Crown did not seek to rely on its contents in responding to this application. In the body of the affidavit the affiant explains that the Informant had prior involvement with criminal activities and had provided information pertinent to drug-investigations since 2015. The information was of a generic nature, never leading to any seizures or arrests. The Informant had met with their handler on about ten occasions, receiving payment in exchange for information. The Informant was never facing charges when providing information, and never had charges withdrawn in exchange. The affiant asserted that he believed the Informant reliable, given that the rumour appeared to relate to the Copa Airlines seizure on February 28, 2016.
• Applicant's unusual interest in test load suitcase – The undercover police officer who was working as a baggage handler participated in offloading the flight containing the test load suitcase on January 28, 2017. The officer identified the Applicant as one of the airport employees who unloaded baggage from that flight. The undercover police officer recognized the test load suitcase before it was put on a baggage cart by another baggage handler. After the cart was full, the undercover police officer drove the cart to the baggage belt area as directed by the lead ramp attendant. As he did so, he received instructions to go to a different baggage belt, which he did. While doing so, the undercover officer looked back at the plane. Of the four airport workers still involved in offloading baggage, the undercover officer noted that the Applicant was the only one who got up to watch him drive between belts. The undercover officer did not remain in the area for the complete unloading of the baggage cart and therefore did not see whether or not the Applicant ever handled the test load suitcase.
• Applicant's presence on January 28, 2017 – According to the undercover officer, the Applicant's involvement in offloading baggage from the test load plane was unusual. From his year working at the airport, he knew that the Applicant worked for Vista Cargo. As a result, he had never seen him working on the ramp, in the bag room, or on inbound belts. The undercover officer checked the Vista Cargo schedule for that day. It listed the Applicant as an employee but did not note him as scheduled to work that day. (In the affidavit, the affiant reproduced a photograph of the Vista Cargo schedule taken by the undercover officer.)
• Drug occurrences and airport workers involved with the test load flight – There were nine airport workers involved in offloading the test load plane on January 28, 2017. The affiant conducted police records checks on each of them. A few surfaced in prior drug investigations at TPIA. The affiant noted the involvement of a baggage handler with a flight resulting in a drug interdiction is not on its own indicative of corruption. In that regard, he noted that the Applicant had never been charged with a criminal offence and did not have a criminal record.
• August 7, 2009 suspicious occurrence involving the Applicant – In August of 2009 the Applicant was employed by Handlex. (In a footnote, the affiant traces the history of Handlex, which was sold to Servisair in May 2012, which was then sold to Swissport in August 2013; the footnote reports that the Applicant "is now an employee of Swissport.) On August 7, 2009, at Terminal 3, in the baggage hall, the Applicant along with another Handlex employee, were observed by a CBSA officer carrying five bags from the baggage belt to the Air Transat desk. The bags were discovered to contain 160 kg of cocaine. When questioned by the CBSA officer about this, the Applicant and his co-worker reported that they were clearing the last remaining bags and that the baggage room was clear. The CBSA officer thought the presence of two ramp attendants in the baggage hall was strange. There was a baggage agent present and moving baggage in the baggage hall is their responsibility. No charges resulted from this seizure. The affiant acknowledges that handling baggage is part of the Applicant's employment and that the presence of cocaine in the five bags could have been a coincidence. However, he asserted his belief that the incident was suspicious.
• 2012 report that Applicant offering marijuana and cocaine for sale – In July 2012, police received a complaint from someone who described himself as a friend of the Applicant. He reported to the police that he had been receiving threatening phone calls and texts messages. The complainant believed these threats involved the Applicant. The complainant reported that the Applicant had asked him for a $65,000 loan. In doing so, he implied that he needed the money because of his involvement with nefarious people. The police interviewed the Applicant, who reported that he had loaned the complainant $6,000 and wanted the money paid back. The Applicant acknowledged being upset with the complainant but denied threatening him. During a second police interview, the complainant said that the Applicant had once told him that he was looking to sell marijuana and cocaine that he got from his connections at the airport. The police closed their investigation after concluding that the complainant had not been forthright.

ii) Positions of Parties

[50] During her submissions on behalf of the Applicant, no doubt to avoid repetition, Ms. Ruffo focussed her arguments on the affidavit sworn to obtain the June 6, 2017 authorization. That affidavit reproduced as exhibits both the affidavit sworn to obtain the April 7, 2017 authorization, and the one sworn to obtain the February 16, 2017 authorization. In each, the affiant expressly relied on the preceding affidavits, asserting his continued belief in the accuracy of their contents. Despite this approach to submissions, it is sensible to isolate the specific arguments made by counsel in relation to the various grounds detailed in each affidavit.

[51] The Applicant claims that the grounds cited in the affidavit for the February 16, 2017 authorization were insufficient to authorize the interception of his private communications as a "known" person. In her careful argument, Ms. Ruffo systematically challenged each of the facts listed by the affiant. For example, the Informant had no proven track record and shared nothing more than a rumour.

[52] The observations made of the Applicant surrounding the offloading of the test load flight are also of little consequence. The Applicant taking an interest in the movement of his co-worker is of no moment. The fact that one baggage handler pays attention to where another is going with a luggage cart is not enough to support an inference that he was complicit in importing the test load suitcase.

[53] The information regarding whether or not the Applicant was supposed to be working on January 28, 2017, is also contradictory and incomplete. That the Applicant was not scheduled to work for Vista Cargo that day is meaningless, given that the affiant does not address the relationship, if any, between Vista Cargo and Swissport. It could be that on that day, the Applicant was scheduled to work for Swissport; the affidavit leaves this crucial question unanswered.

[54] The past occurrences are similarly deserving of virtually no weight, argues Ms. Ruffo. Concerning the August 7, 2009 incident, at the time, the Applicant was a baggage handler. It is not at all surprising that he would sometimes come into contact with baggage containing drugs. Given that the Applicant explained his presence in the baggage hall at that time and his explanation was accepted, the incident is deserving of little weight.

[55] The same is true of the 2012 police investigation. Recall, that the police closed that investigation because they concluded that the complainant was untrustworthy. As a result, the statements the complainant attributed to the Applicant are of no real value. In the end, the police did not consider the complainant to be a reliable source of information.

[56] In contrast, the Crown emphasizes the need to consider the totality of the circumstances. A weighing of everything cited by the affiant, taken together, is required, says Ms. Crackower. It would be an error, she submits, to consider each item in isolation. The cumulative effect of all of the facts and circumstances referenced by the affiant, she argues, easily met the standard. The affidavit furnished a sufficient basis for the February 16, 2017 authorization to allow police to intercept the Applicant's private communications as a "known" person.

iii) Law and Analysis

[57] The law governing when an affiant should name a person, and when the authorization should do the same, is now well settled. There would be little utility in attempting to improve on the concise summary provided by Justice Watt in R v Mahal, 2012 ONCA 673, leave to appeal refused [2012] S.C.C.A. No. 496, where he writes:

[71] The threshold for describing a person as a "known" in the supportive affidavit is a modest one. Investigators need not have reasonable and probable grounds to believe that the person was involved in the commission of an offence being investigated. Provided investigators know the identity of the person and have reasonable and probable grounds to believe that the interception of that person's private communications may assist the investigation of an offence, that person is a "known" for the purposes of s. 185(1)(e): Chesson, at p. 164 S.C.R.; Schreinert, at para. 43; and R. v. Nugent, 2005 CanLII 790 (ON CA), [2005] O.J. No. 141, 193 C.C.C. (3d) 191 (C.A.), at paras. 8-9.

[72] The investigative assistance component in s. 185(1)(e) does not require that investigators determine (in advance) precisely how the "known" persons' communications may assist in the investigation. Investigative omniscience or clairvoyance is unnecessary. It is enough that investigators have identified the person, and from the available evidence, have reasonable and probable grounds to believe that interception of his or her private communications may assist in their investigation: Schreinert, at para. 45.

[73] For the purposes of s. 185(1)(e), a person is "unknown" if she or he does not meet the identity and investigative assistance requirements of the paragraph: Chesson, at p. 164 S.C.R. Admission of intercepted private communications of an "unknown" will depend on the inclusion and terms of a basket clause: Chesson, at pp. 164-65 S.C.R.

[77] Section 186(4) governs authorization content. Compliance with its terms is mandatory. Section 186(4)(c) requires that "known" persons whose communications are to be intercepted be identified in the authorization.

[78] Nothing in s. 186(1) expressly requires that the probable cause or investigative necessity conditions precedent be met with respect to each "known" whose private communications are to be intercepted under the order. Grammatically, the impersonal pronoun, "it", in s. 186(1)(a) refers to "an authorization" or, more fully, to the granting of an authorization under the section.

[79] Section 186(4)(c) does not contain any language that requires or suggests categories of known persons. Its requirement involves identification of any "known" persons whose private communications are to be intercepted under the authorization.

[Emphasis added]

[58] Before analyzing the propriety of the Applicant's naming in the February 7, 2017 authorization, there is an issue concerning the accuracy of the information contained in the affidavit that went unmentioned by counsel during oral argument. The affidavit sworn to obtain the April 7, 2017 authorization discloses that on February 7, 2017, the police determined, by checking with security at the Greater Toronto Airport Authority, that the Applicant did work for Swissport: see affidavit sworn to obtain April 7, 2017 authorization, at para. 50. In that affidavit, the affiant also reports that Swissport is the contracted baggage handling company for multiple airlines, including Sunwing Airlines, Copa Airlines, Air Transat, CanJet Airlines, and Caribbean Airlines: see affidavit sworn to obtain April 7, 2017, at footnote 70.

[59] Elsewhere in the affidavit sworn to obtain the April 7, 2017 authorization, the affiant also asserts that the Applicant worked for Vista Cargo. In doing so, he repeats some of the same points he made regarding the significance of this in the affidavit for the February 16, 2017 authorization. In particular, as it relates to the Applicant's involvement with the test load flight on January 28, 2017. At no point does the affiant avert to this apparent contradiction.

[60] Given the complex nature of the investigation and the volume of information that the affiant had to manage in authoring what were necessarily very long and very dense affidavits, I am disinclined to attribute any malevolent motivation to him. In the circumstances, the most obvious and reasonable explanation is that given the volume of information he was required to manage the affiant never noticed the inconsistency. In that regard, it deserves mention that counsel for the Applicant did not raise it during submissions.

[61] Nevertheless, unequivocal confirmation that the Applicant worked for Swissport is obviously inconsistent with the Applicant being listed as an employee of Vista Cargo on that company's work schedule. It also detracts from the potential significance of the Applicant not being scheduled to work for Vista Cargo on January 28, 2017. Finally, it also suggests that despite the undercover officer never seeing the Applicant working with baggage, that this was, in fact, the nature of his employment.

[62] In these circumstances, the references to the Applicant not working with baggage would seem to be incorrect. Given that the undercover officer did not appear to consult the Swissport schedule for January 28, 2017, it cannot be assumed that the Applicant was not scheduled to work that day. It follows that these particular references must be excised from the affidavit and not considered in assessing the adequacy of the supporting grounds.

[63] The standard of review, along with the law governing the naming of a person in an authorization, must be considered in conjunction. As a result, the questions raised are whether, on the record before the issuing judge, as amplified on review, there was a basis on which he could conclude the following. First, that the Applicant was known to police. And, second, that there were reasonable and probable grounds to believe that the interception of the Applicant's private communications might assist in the investigation of the offences police were investigating. The answer to the first question is obvious, while the answer to the second is contentious.

[64] The Supreme Court of Canada's jurisprudence makes clear that "reasonable and probable grounds" imports a standard of reasonable probability, which entails something less than proof beyond a reasonable doubt or a prima facie case: see R. v. DeBot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1166; R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at 250-51. It is also less than the civil balance of probabilities standard, but more than mere possibility or suspicion: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114; Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416, at p. 448. Ultimately, the standard is met at "the point where credibly-based probability replaces suspicion": Hunter v. Southam, 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 167.

[65] Importantly, the Supreme Court of Canada has instructed that the "totality of circumstances" must always be considered in assessing the existence of reasonable and probable grounds: DeBot, at p. 1168; R. v. Greffe, 1990 CanLII 143 (SCC), [1990] 1 S.C.R. 755, at p. 790. It is an error to assess whether or not reasonable and probable grounds exist by dissecting the facts and viewing each in isolation. Instead, the standard requires a consideration of all the facts and circumstances in their entirety: R. v. Jacques, 1996 CanLII 174 (SCC), [1996] 3 S.C.R. 312, at pp. 325-326.

[66] Ultimately, without the references to the Applicant not ordinarily working baggage and not being scheduled to work on January 28, 2017, I am of the view that the grounds that remain in the affidavit fall short. Based on the affidavit, as amplified on review, the issuing justice could not conclude that there were reasonable and probable grounds to believe that intercepting the Applicant's private communications might assist with the investigation. In other words, that he was somehow connected to the importation scheme police were investigating. At most, after amplification, the grounds give rise to a reasonable suspicion that this might be the case. But reasonable suspicion is less than the constitutionally required credibly-based probability.

[67] Had the Applicant's private communications been intercepted under the ostensible authority of the February 16, 2017 authorization, there would have been a resulting s. 8 Charter violation. Critically, the Applicant's private communications were not intercepted under that authorization. It follows that there was no intrusion on his reasonable expectations of privacy. Consequently, there was no violation of the Applicant's s. 8 Charter right to be secure against unreasonable search or seizure.

B. Could the April 7, 2017 Authorization to Intercept the Applicant's Private Communications Validly Issue?

[68] In the affidavit sworn to obtain the April 7, 2017 authorization, the affiant reproduced and exhibited his affidavit for the February 16, 2017 authorization. He also reaffirmed his belief in the accuracy of the contents of that affidavit. The affidavit in support of the April 7, 2017 authorization also set out developments in the investigation during the intervening period. It also referenced private communications intercepted under the authority of the February 16, 2017 authorization, surveillance observations, and the results of various records checks.

i) Grounds for the April 7, 2017 Authorization

[69] As detailed above, through inquiries with security officials at TPIA, the police determined that the Applicant was working for Swissport. The affiant also reported that Swissport is the contracted baggage handling company for multiple air carriers. The airlines it services included Sunwing Airlines, Copa Airlines, Air Transat, CanJet Airlines, and Caribbean Airlines. Through various records checks, the police also identified two phone numbers as being associated with the Applicant.

[70] After the successful test load on January 28, 2017, in February of 2017, Chodkiewicz and the agent continued making plans for their first shipment. (Unbeknownst to Chodkiewicz and his group, the police were planning on importing fake cocaine – a "staged load".) Police intercepted a conversation between Chodkiewicz and Donovan Brown. During the call, the two men discuss the partnership and an upcoming meeting with a member of the agent's group.

[71] On February 23, 2017, Chodkiewicz, along with the agent, met with an undercover police officer who was posing as "Vuk" (the "Serbian"). The men discussed the logistics of the operation, including preferred air carriers. During their conversation, Chodkiewicz shared general details about the airport workers in his group, who he described as a "tight crew of six," which includes ground crew, cleaners (who are on lookout) and the "gas guy." He told Vuk that: "They are not in it for the short haul. They do it again and again. It's a safe system."

[72] The men agreed on a plan to import 4 kg of cocaine aboard a flight from Aruba on February 27, 2017. Chodkiewicz would charge the agent's group $54,000 for facilitating the shipment, 30 percent of the value of the shipment. The agent sent a photograph of the suitcase that would contain the shipment. The police coordinated with CBSA, to arrange the interdiction of the shipment after its arrival in Canada.

[73] At 4:59 p.m. on February 27, 2017, a flight containing the staged load arrived from Aruba at Terminal 3 of TPIA. The affidavit reproduces what appear to be surveillance photographs from the arrival and offloading of this flight. In due course, a CBSA officer seized the staged load suitcase to create the appearance of an actual cocaine seizure. The affidavit includes details of police investigative efforts directed at the Applicant both preceding, surrounding, and following the arrival of the February 27, 2017 staged load flight, including:

• Applicant's Parking and Driving Habits – After January 28, 2017, the police conducted surveillance of the Applicant on eight occasions. On these occasions, when the Applicant was working, he ordinarily parked in an employee parking lot. There were three exceptions when he parked in a closer public lot. These included January 28, 2017, and February 27, 2017, the days of the test load and the staged load. On the third occasion when he parked in the closer lot, March 19, 2017, the Applicant was observed carrying a backpack to his vehicle before driving off in an uncharacteristically aggressive manner. The police interpreted his driving manoeuvres to be reflective of counter-surveillance efforts.
• Applicant's arrival at the airport - On the day of the staged load flight, the Applicant arrived at TPIA at 4:09 p.m.
• Applicant's initial involvement with the staged load flight – As the plane approached the gate, the Applicant acted as a "wing walker" for the flight, assisting in directing the plane to the gate. After the plane was parked, at 5:02 p.m., the Applicant, along with some unknown Swissport employees, participated in offloading baggage from the flight. The Applicant was observed speaking with a baggage handler, who had worked a flight from Punta Cana, Dominican Republic, in 2008, from which authorities interdicted 6kg of cocaine and 870g of heroin packaged in a "suit and tie." The Applicant then drove off in a luggage tug.
• Applicant's return to the stage load flight – By 5:21 p.m., the offloading of baggage from the flight was complete. At 5:25 p.m., the Applicant returned to the area of the staged load plane. He was in a fuel truck, driven by Devon McLean, another airport worker who police had also come to suspect of being involved in the importation scheme. The Applicant exited the truck and approached the same baggage handler he had been speaking with before, the two men spoke again. While this was taking place, another fuel truck arrived at the plane. McLean signalled to the driver of the second fuel truck to indicate that he was not there to refuel the plane. Eventually, the Applicant and the baggage handler he had been speaking with both boarded a luggage tug and headed towards the terminal. The Applicant was dropped off near the luggage belts for domestic flights before disappearing from view.
• Surveillance of the Applicant after the test load flight – At 6:58 p.m., the Applicant left the secure area of Terminal 3. He drove to Terminal 1 where he picked up a woman, before driving her to an apartment building, and then driving to his home at 22 Glenvalley Drive.
• Surveillance of the Applicant on March 22, 2017 – On that date, police observed the Applicant leaving the airport for the employee parking lot carrying a weighted backpack. Once in his vehicle, the Applicant drove in an uncharacteristically aggressive manner consistent with counter-surveillance efforts. He went to his residence, at 22 Glenvalley Drive. Later that day, he drove to an apartment building, located at 10 Humberline Drive in Etobicoke. He was observed removing the weighted backpack from his vehicle, it had been in his vehicle since he left TPIA, before entering the building carrying the backpack. A short time later, the Applicant exited the building carrying what appeared to be the same backpack in his hand, which was then crumpled up. The police continued following the Applicant that day, and he persisted in driving in an uncharacteristically aggressive manner. Given all of these circumstances, the affiant expressed his opinion that the backpack may have contained bricks of cocaine.
• Intercepted phone call with potential reference to the Applicant – On March 29, 2017, a meeting took place between Chodkiewicz and "Vuk" (the "Serbian"). Vuk told Chodkiewicz that he wanted to import 4kg "this Saturday" but wanted assurances that it could be removed that night. Chodkiewicz said he would need to check and would text Vuk "1" if they could and "2" if they could not. In the aftermath of that meeting, the police intercepted a telephone conversation between Donovan Brown and another suspect. The call was cryptic. During the call, the other suspect told Donovan Brown, the "main guy" was coming back on Saturday, and so they could not do anything before Tuesday. At the time, the Applicant was away in Jamaica, having left on March 24, 2017. Shortly after the intercepted call, Donovan Brown texted "2" to Chodkiewicz. In a later call that day, Donovan Brown said that the "big dude" left on Sunday [March 26, 2017].

[74] Concerning investigative necessity, the affiant adopted and elaborated on the grounds he set out in his affidavit to obtain the February 16, 2017 authorization. The combined content of both affidavits provided a detailed and reasoned explanation for why police had not used particular investigative techniques, and the limitations inherent in those used thus far. In short, the persons involved appeared to be close-knit and surveillance conscience. Although the police had enjoyed some success with undercover operatives and surveillance, the affiant expressed well-reasoned skepticism regarding the likelihood of such investigative techniques helping to identify the airport workers involved with the group.

[75] Based on the affidavit sworn to obtain the April 7, 2017 authorization, which reproduced and attached as an exhibit the affidavit sworn for the February 7, 2016 authorization, the affiant sought authorization to intercept the Applicant's private communications as a "Principal Known Person." The affiant sought and obtained authorization to intercept the Applicant's private communications in his vehicle and on two mobile devices.

ii) Positions of the Parties

[76] Many of Ms. Ruffo's submissions detailed above would apply equally to the affidavit sworn to obtain the April 7, 2017 authorization, given that it also relied on the affidavit sworn to obtain the February 16, 2017 authorization. Ms. Ruffo made three principal submissions in challenging the interception of the Applicant's private communications under both the April 7, 2017 and June 6, 2017 authorizations.

[77] First, she adopted the submissions made on behalf of Garren Brown, who challenged both the February 16, 2017, and April 7, 2017 authorizations. On his behalf, Mr. Mattis argued that after excision of misleading and erroneous information from the supporting affidavits, the grounds that would remain are deficient. Further, that they betray a systematic effort to mislead the issuing justice and that the authorizations should also be set aside on that basis.

[78] Second, Ms. Ruffo argued that before a person can be named in an authorization there must be reasonable grounds to believe he or she is involved in the particular criminal activity in connection with which an authorization is sought: see R. v. Montgomery, 2016 BCCA 379, leave to appeal refused [2016] S.C.C.A. No. 493, at para. 90. In the circumstances, she submits that the evidence fell far short of making a connection between the Applicant and the seizure of 90.45 kg of cocaine at TPIA on February 28, 2016.

[79] Third, turning to the additional grounds found in the affidavit in support of the April 7, 2016 authorization, she points out how inconclusive much of it is. For example, Ms. Ruffo notes that the Applicant coming into work for only a short period on February 27, 2017, the date of the staged load, is, on its own, meaningless. Without knowing the length of his usual work shifts, she submits it provides no basis for inferring anything nefarious.

[80] Concerning the surveillance evidence, Ms. Ruffo notes that the observations of the Applicant carrying a backpack and his aggressive driving are of no moment. For this surveillance to be indicative of the Applicant's involvement in the importation scheme, two further things would be needed. First, some indication that when the Applicant attended work on those days, he was not observed carrying a backpack. Second, some basis for suggesting that this behaviour corresponded with dates when there were known drug shipments.

[81] Ms. Russo also notes that although the affidavit confirms that importing activities continued after February 16, 2017, nothing implicates the Applicant in these incidents. Critically, she emphasizes that despite the authorization of February 16, 2017, none of the communications police intercepted incriminate the Applicant.

[82] Finally, concerning investigative necessity, Ms. Russo points to the apparent success police enjoyed using undercover operatives, the drug importation ruse, and surveillance. These techniques helped them to identify some airport workers as potentially being involved in the scheme. She emphasizes that the affiant referenced this success in his affidavit in support for the April 7, 2017 authorization: see affidavit, at para. 114(b). Given this, she says, investigative necessity, an essential precondition for the issuance of an authorization to intercept private communications, was not made out.

[83] Ms. Crackower did not repeat the submissions made by Mr. Visca in response to Garren Brown's Charter application. The Crown made its position clear in responding to that application. That there is no basis for concluding that the affiant deliberately misled the issuing justice. Further, that the affidavits sworn to obtain the February 16, 2017, and April 7, 2017 authorizations overwhelmingly establish the necessary grounds for their issuance.

[84] Second, Ms. Crackower reminds the court that the affiant did not only seek, and the issuing judge did not only authorize, the interception of private communications for the purpose of furthering an investigation of the February 28, 2016 cocaine importation. The offences for which the affiant sought the authorization and for which it ultimately issued, were far more expansive. They included importing cocaine, possessing cocaine for the purpose of trafficking, possession of property obtained by crime, and conspiracy to commit each of these offences.

[85] The affidavit makes clear, Ms. Crackower argues, that police were investigating an ongoing cocaine importation scheme. The February 28, 2016 importation was just a part of that larger scheme. The police wanted to identify and obtain evidence against both the architects of that scheme and the corrupt airport workers who were helping to facilitate it.

[86] Finally, concerning investigative necessity, Ms. Crackower reminds the court that there is no requirement to establish it for each investigative target. It relates to the investigation as a whole. She submits that the supporting affidavit made evident why there were no reasonable alternative methods available to police to achieve the goals of this investigation.

iii) Law and Analysis

[87] In deciding whether or not to grant an application to intercept private communications, the judge must be satisfied of two essential preconditions. First, that the issuance of the authorization is in the best interests of the administration of justice: Criminal Code, s. 186(1)(a). The Supreme Court of Canada has interpreted this language as requiring the issuing judge to be satisfied, "that there are reasonable and probable grounds to believe that an offence has been, or is being, committed and the authorization sought will afford evidence of that offence": see R. v Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, at p. 45; Garofoli, at p. 1451.

[88] Second, the issuing judge must also be satisfied that there is investigative necessity to intercept private communications. In the language of the Code 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": Criminal Code, s. 186(1)(b). This require the issuing judge to be satisfied that, "practically speaking [there is] no other reasonable alternative method of investigation, in the circumstance of the particular criminal inquiry": Araujo, at para. 29 (emphasis in original).

[89] The application must establish both preconditions before an authorization to intercept private communications may issue. These reasons already canvassed the law as to what is necessary to authorize the interception of a particular person's private communications. First, the police must have identified the person. And, second, there must be reasonable and probable grounds to believe that interception of his or her private communications may assist in their investigation: see Mahal, at para. 72; R. v. Chesson, 1988 CanLII 54 (SCC), [1988] 2 S.C.R. 148, at pp. 164-65; R. v. Nugent (2005), 2005 CanLII 790 (ON CA), 193 CCC (3d) 191 (Ont.C.A.), at paras. 8-9.

[90] These reasons turn next to address each of the claims raised by the Applicant as to why to the April 7, 2017 authorization should not have issued. As well as why it should not have authorized the interception of the Applicant's private communications.

[91] To begin, there is little point in attempting to summarize the extensive grounds set out in the affidavit sworn to obtain the April 7, 2017 authorization. That affidavit also relied on and exhibited the affidavit sworn to obtain the February 16, 2017 authorization. (More detail will be found in the written reasons to be released involving Garren Brown's Charter application.) Together, these two documents fill 228 single spaced pages. They set out, in exhaustive detail, the results of a long-lasting and complex police investigation.

[92] The affidavits include information obtained from private communications intercepted by the Jamaican police. Information gleaned from conversations intercepted by Canadian police during other concurrent police investigations involving some of the same investigative targets. Information provided by confidential informants. Details of extensive conversations initially unrecorded, and later recorded, between Chodkiewicz and the police agent. The conversations between Chodkiewicz and the agent provide compelling evidence implicating many of the suspected principals in the scheme. The results of extensive police surveillance efforts are also set out. Along with relevant related information from police reports and databases. There is also information obtained from reports and databases involving other related government agencies (i.e. the Canadian Border Services Agency).

[93] The picture that emerges from these affidavits is that of a sustained and sophisticated scheme to import cocaine into Canada through TPIA. To be sure, not surprisingly in such lengthy and dense documents, there are some minor errors. I am far from convinced that any misstatements were deliberate or that any errors serve to detract from the compelling grounds that emerge from all of the details of this complex investigation.

[94] In short, there was an overwhelming basis from which the issuing judge could conclude that there were reasonable and probable grounds to believe that offences had been, and were continuing to be, committed and the authorizations would afford evidence of these offences. Specifically, the importation of cocaine into Canada aboard aircraft arriving at TPIA from the Caribbean involving corrupt airport workers, and an ongoing conspiracy to facilitate these importations.

[95] The affidavits also establish that, from a practical standpoint, the interception of private communications was the only investigative method that would allow for the meaningful advancement of the police investigation. There were no alternative investigative options because of the sophisticated, insular and careful approach taken by those participating in the scheme. Absent the interception of private communications, critical details regarding the people involved, the nature of their involvement, and the mechanics of the operation, would remain shrouded in secrecy.

[96] The scheme that was the focus of this investigation involves the very sort of criminal activity that motivated Parliament to add what is now Part VI to the Criminal Code. The affidavits to obtain the February 16, 2017, and April 7, 2017 authorizations, furnish more than sufficient grounds from which the issuing judge could conclude that the investigative necessity requirement was made out. The supporting affidavit established that short of intercepting private communications, there was no other viable alternative method for police to further their investigation.

[97] The only remaining issue to address, in this part, is whether the April 7, 2017 authorization appropriately authorized the interception of the Applicant's private communications. Although, after amplification, the affidavit sworn to obtain the February 16, 2017 authorization fell short, the circumstances outlined in the affidavit for the April 7, 2017 authorization more than filled any evidentiary gap. Taken together with the unexcised information found in the affidavit for the February 16, 2017 authorization, there was a basis on which an issuing judge could conclude that there were reasonable and probable grounds to believe that interception of the Applicant's private communications might assist in the investigation.

[98] In summary, the Applicant was present and participated in unloading baggage from both the test load flight, on January 28, 2017, and the staged load flight, on February 27, 2017. On its own, this could be nothing more than a coincidence. However, on both occasions, the Applicant's behaviour was peculiar. On January 28, 2017, he took an interest in the movement of the test load suitcase. Then, on February 27, 2017, he inexplicably returned to the plane even after the luggage had been offloaded, suggesting he had a special interest in this particular plane.

[99] The events of February 27, 2017 are made even more curious by the timing of the Applicant arrival and departure form TPIA that day. He arrived shortly before the test load flight and left not long afterwards. He stayed at the airport for less than three hours. Common sense strongly suggests that this is unlikely to be anyone's ordinary workday. This supports a conclusion that the Applicant attended at the airport for a very specific purpose, the arrival of the staged load flight.

[100] The events of January 28, 2017, and February 26, 2017, take on even greater significance when combined with the other evidence. There was also the Applicant's suspicious involvement with five bags containing 160 kg of cocaine in 2009. As well, there was the report in 2012 that he told a friend that he was looking to sell marijuana and cocaine from his connections at the airport. There were the intercepted phone calls of March 29, 2017, to the effect that a shipment had to be delayed because the "main guy" or the "big dude" was away, which corresponded with the Applicant's absence from the country. Further, and least importantly, there was the rumour that the Applicant was supposed to unload the February 28, 2016 flight containing cocaine.

[101] The surveillance evidence also weighs on the scales of supplying reasonable and probable grounds. Two of the three occasions when surveillance officers observed the Applicant park in a private lot closer to the terminal corresponded with the dates of the test load and staged load. This is consistent with the Applicant wanting to walk a shorter distance while carrying illicit contraband. On the third occasion, the Applicant was seen carrying a backpack to his car, before driving off in a manner that suggested he was engaging in counter-surveillance techniques. Remember, police knew from other sources that backpacks hidden within suitcases were the means the group they were investigating was using to smuggle cocaine.

[102] There was also the Applicant's attendance at his vehicle on March 22, 2017, after work, carrying a weighted backpack. He again drove in an uncharacteristically aggressive manner. Later that same day, he was observed entering an apartment building carrying the weighted backpack. He emerged from the building a short time later carrying what appeared to be the same backpack crumpled up.

[103] The two affidavits, as amplified on review, provide a solid evidentiary foundation to authorize the interception of the Applicant's private communications. A basis existed from which an issuing judge could conclude that there were reasonable and probable grounds to believe that the interception of the Applicant's private communications might assist the investigation. In short, the evidence gave rise to a credibly based probability that the Applicant was involved in the importation scheme that the police were investigating.

[104] It follows that it was reasonable for the issuing justice to authorize the interception of the Applicant's private communications as part of the April 7, 2017 authorization. Accordingly, the interception of the Applicant's private communications under that authorization did not violate his s. 8 Charter right to be secure against unreasonable search or seizure.

C. Could the June 6, 2017 Authorization to Intercept the Applicant's Private Communications Validly Issue?

[105] The affidavit for the June 6, 2017 authorization attached as exhibits the affidavits that were relied on to obtain both the February 16, 2017, and April 7, 2017 authorizations. The affiant also expressly relied on the grounds set out in those earlier affidavits, asserting that he continued to believe in the accuracy of the information contained within them.

[106] In the affidavit for the June 6, 2017 authorization, the affiant provided a general overview of the investigation by summarizing information found in the earlier affidavits. Additionally, the affiant set out developments in the investigation since the authorization of April 7, 2017. This included detailing further meetings between the undercover police officer posing as "Vuk" and some of the principal targets of the investigation. The affiant also referenced private communications intercepted since the last authorization.

[107] Nothing contained within the affidavit to obtain the June 6, 2017 authorization in any way detracted from the grounds for the issuance of an authorization generally, or as it related to the Applicant. That said, there was relatively sparse mention made of the Applicant in the affidavit to obtain the June 6, 2017 authorization. There were two notable exceptions.

[108] First, the affiant detailed an intercepted telephone conversation that took place on April 27, 2017, between McLean and the Applicant. McLean, whose phone was also being intercepted, called the Applicant. During that call, McLean asked the Applicant whether he had seen the news regarding two customs officers being among five people charged with smuggling. They then speculated about CBSA officers they knew who might be involved. The Applicant, after saying: "That doesn't surprise me at all," remarked "they" work more than "me and you."

[109] Second, the affiant again sought to intercept the Applicant's private communications in his vehicle. Importantly, he did not ask to do so on the two mobile devices and associated phone numbers that the police were authorized to intercept under the April 7, 2017 authorization. He explained that during the period of the second authorization, police learned that the Applicant was using a different phone number. As a result, the affiant sought, and the issuing judge authorized, the interception of the Applicant's private communications in his vehicle and on the newly discovered phone number.

[110] The court's conclusion regarding the validity of the April 7, 2017 authorization is somewhat determinative of the challenge to the June 6, 2017 authorization. The affidavit for the June authorization in no way detracted from the grounds found in the affidavit for the April authorization. The incriminating remarks made by the Applicant during the phone call of April 27, 2017, only served to fortify the justification for intercepting his private communications. During submissions, Ms. Russo argued that the Applicant's comment during that call does not directly connect him to the scheme police were investigating. While this is true, an abundance of other evidence also before the issuing justice did just that. That evidence, along with the April 27, 2017 phone call, could leave little doubt regarding the adequacy of the grounds for intercepting the Applicant's private communications.

[111] In the circumstances, for essentially the same reasons detailed concerning the April 7, 2017 authorization, I have concluded that the June 6, 2017 authorization was validly issued. Further, that that the required grounds continued to exist for believing the interception of the Applicant's private communication might assist the investigation.

[112] It follows that the June 6, 2017 authorization lawfully authorized the interception of the Applicant's private communications. As a result, there was no violation of the Applicant's s. 8 Charter right when police intercepted his private communications under the authority of that authorization.

D. Could the Warrant to Search 22 Glenvalley Drive Validly Issue?

[113] The Applicant challenges the search of his residence at 22 Glenvalley Drive on June 29, 2017. That search was carried under the authority of a warrant that issued the preceding day. The warrant authorized police to search the residence for a number of things: 1) mobile devices, other electronic communication devices, and SIM cards that police had reasonable grounds to believe had been used by the Applicant; 2) documents pertaining to the operation of TPIA believed to have been used to facilitate the listed offences (i.e. importing cocaine, possessing cocaine for the purpose of trafficking; and conspiracy to commit both those offences); 3) currency and debt lists; and 4) firearms and ammunition.

i) Grounds for Issuance of the Search Warrant

[114] The information relies on essentially the same grounds that were found in the affidavit sworn for June 6, 2017 authorization, while also providing an update regarding developments in the investigation since that date. The same information was used to obtain search warrants for various locations involving different suspects. As a result, it is only necessary to summarize those grounds relating to the Applicant, 22 Glenvalley Drive, and the items that the warrant authorized police to search for at that location.

[115] The Informant set out details of the Applicant's involvement with both the test load on January 28, 2017, and the staged load on February 27, 2017, as well as his behaviour on both occasions. It is noteworthy that the Informant repeated the claim that the Applicant had no reason to be present during the test load on January 27, 2017. As explained above, this appears to be incorrect. This must, therefore, be excised from this information (as it was when considering the affidavits sworn to obtain the February 16, 2017, April 7, 2017, and June 6, 2017 authorizations).

[116] The Informant set out grounds for believing that the Applicant was also involved in a cocaine shipment on the evening of June 10, 2017. The evidence included intercepted conversations between the Applicant and McLean, the results of investigative efforts undertaken by CBSA officers, along with details of surveillance video and surveillance observations from the airport.

[117] The evidence suggests that cocaine arrived aboard a flight from Montego Bay on the evening of June 10, 2017. The Applicant and McLean aborted efforts to remove the shipment from the airport because CBSA officers attended the area at the prompting of the police. The CBSA officers discovered some baggage cans from the flight were unaccounted for. Intercepted conversations between the men make clear that they were planning to return to the area later and retrieve the cocaine.

[118] On June 12, 2017, at the suggestion of the police, CBSA officers searched the area and found what appeared to be cocaine on the ground wrapped in tape. They also recovered 1.92 kg of suspected cocaine from within the frames of some baggage cans.

[119] That evening, the Applicant, who was not scheduled to be working, attended the airport in his uniform. He was observed driving a luggage tug in the area where CBSA officers had found the baggage cans containing the cocaine. Around that same time, the Applicant telephoned McLean, he began the call by reporting: "Jesus Christ somebody took it." Later that same night, an audio probe in the Applicant's vehicle caught a portion of a conversation between him and McLean. During that conversation, the Applicant names a third baggage handler, who he suspected of being responsible for taking one of the cans away.

[120] Late on the evening of June 12, 2017, CBSA officers returned one of the baggage cans, from which they had retrieved suspected cocaine, to the same area. The next morning, Blackwood called McLean again and told him: "Found the gal but guess what the gal is dry, all her clothes is gone." During other intercepted conversations, the Applicant and McLean appear to refer to shipments as "gals".

[121] The informant also set out the following grounds for believing that the Applicant had a firearm. The referenced phone conversations are from June 13, 2017. The Informant writes:

At approximately 2:03 p.m. BLACKWOOD called a male identified as Chris. BLACKWOOD told Chris that he was being watched and he was going to apply for his gun license. BLACKWOOD further stated that he told his brethren that he works with here to bring him a "machine" so he could "put it down". Chris told him to watch out at his house.

At approximately 2:26 p.m. BLACKWOOD called MCLEAN and advised he was just heading back on the highway. MCLEAN stated "Okay, you still want the gal?" BLACKWOOD replied "yes I do", MCLEAN advised "No problem."

[I believe the "machine" BLACKWOOD is referring to is a firearm. In an intercepted communication on June 18, 2017, at 9:53 a.m. in BLACKWOODS (sic) vehicle he advised a female named Dawn that "I don't have anything by my house, the only thing I have by my house is a blood laat (sic) nine so when they come to kick off my door." Base (sic) on the above noted grounds I believe that MCLEAN has provided BLACKWOOD with a firearm.]

[Italics in original]

[122] The Informant explains that during the investigation, the police intercepted the Applicant's conversations on three separate phone numbers. During these calls, the Applicant had also used two different mobile devices. The Informant notes that an audio probe in the Applicant's car had intercepted him speaking on the phone. Despite this, police did not intercept any of these phone calls on the lines they were monitoring that they believed to be associated to the Applicant. From this, the Informant surmises that the Applicant has other phones that police do not know about.

[123] The Informant also notes that police have overheard conversations in which the targets of the investigation had stated their preference for using encrypted applications to communicate. They use this technology to share photographs, schedules, and flight numbers for planned importations into TPIA.

[124] The Informant cites his experience as an investigator to explain his belief that people keep both their current and former mobile phones and SIM cards in their residences. Given all of this, the Informant states that he reasonably believes such devices will be found in the Applicant's home and afford evidence of the offences.

[125] The Informant also sets out his reasons for believing that the Applicant may have documents about the operation of TPIA at his home. He acknowledges that as someone employed at the airport, the Applicant may have such materials for reasons unrelated to facilitating the listed offences. However, he goes on to assert his belief that the Applicant uses such documents to help in the commission of the offences.

[126] The Informant also explains the basis for his belief that in the Applicant's home police will find currency and debt lists. He notes the Applicant's apparent involvement in importing and conspiring to import cocaine. He also references that the investigation has revealed that the "door" in the operation, the people who offload the planes, take a 30 percent fee for this service. Payment can be received in cash, but the preferred method of payment is in cocaine. (The Informant reproduces a WhatsApp (text) exchange between Chodkiewicz and the police agent to this effect.) As a result, the Informant asserts his belief that such items are likely to be found in the Applicant's home.

[127] Finally, concerning the request for authorization to search for firearms and ammunition, the Applicant references the information (detailed above). He notes that intercepted communications cause him to believe that McLean had provided the Applicant with a handgun on two separate occasions. He also references the Applicant's recent comment about having a firearm ("blood laat nine") at his residence and his concern about being the victim of a home invasion ("when they come to kick off my door"). Given all of this, the Informant asserts his belief that the police will find firearms and ammunition in the Applicant's residence.

ii) Positions of the parties

[128] Ms. Russo made two principal arguments challenging the validity of the warrant to search the Applicant's residence. To begin, she argued the warrant could not have issued without the Applicant's private communications, intercepted under the authority of the June 6, 2017 authorization. Given her argument that that authorization should not have issued, she argued that reference to these conversations in the information also had to be excised. Without the intercepted private communications, the search warrant could not have issued. Given the court's conclusion regarding the validity of the June 6, 2017 authorization, there is no need to consider this argument further.

[129] Second, Ms. Russo argued that the information to obtain the warrant did not reveal reasonable grounds. First, to believe that items police were authorized to search for would afford evidence of the identified offences. And, second, to believe the items would be present in the Applicant's residence. In advancing this argument, Ms. Russo made several more discrete submissions.

[130] Ms. Russo notes that the information indicated that police were planning on arresting the Applicant at work. As a result, the claim that they would find communications devices at his home was speculative. The same is true of the Informant's belief that documents relating to TPIA would be in the home. Further, there was no evidence suggesting that the Applicant was a street-level drug dealer. Given this, the idea of him having the proceeds of drug sales or debt lists in his home is without foundation. However, Ms. Russo did concede that if intercepted conversations were to remain in the information, they provided the required grounds to search the Applicant's home for firearms and ammunition.

[131] On behalf of the Crown, Ms. Crackower argued the information provided sufficient grounds to draw two key conclusions. First, that the various items police were authorized to search for would be present in residence. And, second, that these items would afford evidence of the offences listed in the warrant.

[132] Concerning mobile phones, other electronic communication devices and SIM cards, Ms. Crackower made several points. First, the police had a solid basis for believing that the Applicant had been using more than one mobile device. Although the police were planning on arresting the Applicant at work, there was good reason to think that some of these devices would be at his home and contain relevant evidence. She says the same is true of the TPIA documents. That there was a reasonable basis to believe that those involved in the importations would have such materials. They needed them for planning purposes. Given the Applicant's apparent involvement in the scheme, he was likely to have such documents in his home.

[133] Finally, concerning the currency and debt lists, Ms. Crackower emphasizes the evidence that the Applicant received payment in the form of money and cocaine. Given the quantities of cocaine involved, it is reasonable to infer that he was selling the cocaine. As a result, it was likely that he would have both cash and debt lists in his home.

iii) Law and Analysis

[134] Section 487(1) of the Criminal Code incorporates the minimum standards mandated by section 8 of the Charter. In particular, a justice may only issue a warrant if satisfied that there are reasonable grounds, established upon oath, that an offence has been committed, and evidence relevant to that offence will be found in the "building, receptacle or place" to be searched: see Grant, at p. 253; Morelli, at para, 39.

[135] These reasons already canvassed the approach to be taken by a reviewing judge when assessing the adequacy of an information sworn to obtain a search warrant: see above, at paras. 25-32. The guidance provided by the Supreme Court of Canada on the meaning of "reasonable and probable grounds" was also detailed: see above, at paras. 64-65. Ultimately, the question squarely before the court is: "whether there was reliable evidence that might reasonably be believed on the basis of which the [warrant] could have issued": Araujo, at para. 54 (underlining in original, italics added); see also Morelli, at para. 40.

[136] The information set out a compelling basis from which the issuing judge could conclude that the Applicant was actively involved in the importation of cocaine into Canada through TPIA. More specifically, that his role was to unload cocaine from incoming planes and remove it from the airport without being detected.

[137] Turning first to the basis for authorizing police to search the Applicant's residence for mobile devices. The information detailed evidence from which one could draw several entirely reasonable inferences. First, that in the preceding months, the Applicant had used a number of different mobile devices. Second, that these devices had been used to communicate with other persons involved in the cocaine importations. Third, that the participants in the scheme used these devices to make arrangements for the cocaine importations they were planning.

[138] Finally, even though the police were planning to arrest the Applicant at work, it is rather unlikely that he would have all of these devices with him. Instead, it is reasonable to conclude that some of them would still be at his residence. After all, experience tells us that this is precisely where people ordinarily keep such items.

[139] Accordingly, there was a reasonable basis from which the issuing justice could draw two key conclusions. First, some of the mobile devices the Applicant had been using would be at his home. And, second, that they would provide evidence of the offences police were investigating.

[140] Turning next to the basis for authorizing the search of the Applicant's residence for documents regarding the operation of TPIA believed to have been used to facilitate the listed offences. The information established that the police were investigating a sophisticated cocaine importation scheme that required a fair amount of planning. The participants would need to ensure that cocaine shipments would only be put on certain flights arriving at TPIA. Those being flights that corresponded with when airport workers complicit in the scheme would be working and available to offload the shipments.

[141] To facilitate all of this, one would need to consult both flight schedules and the work schedules of the airport workers involved. As a result, there was a reasonable basis from which the issuing justice could conclude two things. First, that documents about the operation of TPIA would be at the Applicant's residence. And, second, that these documents would likely provide evidence of the offences police were investigating.

[142] Finally, turning to the basis for authorizing police to search the Applicant's residence for currency and debt lists. The police had information that the airport workers were taking both cash and cocaine as payment. The quantities of cocaine involved were substantial. A reasonable and available inference was that the Applicant was selling the cocaine he was receiving.

[143] Experience tells us that like any business, those who sell drugs keep records. They do so to keep track of debts owed to them by their customers. This is not something confined to street-level drug dealers, as Ms. Ruffo suggested during her argument. In my view, the information provided a reasonable basis from which the issuing justice could conclude that currency and debt lists would be at the Applicant's residence. Further, that any cash was likely to be the proceeds of crime. And, that debt lists would be important evidence of the offences that police were investigating.

[144] It follows that the warrant lawfully authorized the police to search 22 Glenvalley Drive for the various items it listed. As a result, there was no violation of the Applicant's s. 8 Charter right when police searched that address under the authority of that warrant.

E. Could the Warrant to Search 1208-10 Humberline Drive Validly Issue?

[145] The Applicant challenged the warrant to search 1208-10 Humberline Drive. That warrant issued on June 29, 2017, after the Applicant's arrest. The information provided a concise summary of the investigation, especially emphasizing evidence that implicated the Applicant in the importation scheme. The information also made extensive reference to the Applicant's private conversations, intercepted under the authority of the June 6, 2019 authorization, along with details regarding surveillance of the Applicant.

[146] Together, this evidence established that the Applicant was renting a room at this address. That he was visiting there regularly, for brief periods. And that he was storing something at this address that he did not want police to know about. Given all of this, there was a reasonable basis on which the issuing justice could conclude that the Applicant was keeping cocaine, as well as other items associated with drug trafficking, at this location.

[147] The Applicant's challenge to this search warrant depended entirely on his success in setting aside the June 6, 2017 authorization. That would have resulted in excising his private communications from the information sworn to obtain the warrant. Ms. Ruffo conceded that if those conversations remained in the Information, the required grounds for the issuance of the search warrant would be present. In the circumstances, this was a reasonable concession.

[148] Given the court's conclusion that the June 6, 2017 authorization was validly issued, the Applicant's challenge to the June 29, 2017 warrant to search 1208-10 Humberline Drive also fails. It follows that that warrant lawfully authorized the police to search 1208-10 Humberline Drive for the various items it listed. As a result, there was no violation of the Applicant's s. 8 Charter right when police searched that address under the authority of that warrant.

Conclusion

[149] The police intercepted the Applicant's private communications under the authority of lawfully issued authorizations. The police also searched 22 Glenvalley Drive and 1208-10 Humberline Drive, under the authority of lawfully issued search warrants. It follows that there was no violation of the Applicant's s. 8 Charter right to be secure against unreasonable search or seizure. The application is dismissed.

Signed: J. Stribopoulos

Released: September 30, 2019

Court File No.: CR-18-1343 Date: 2019-09-30

Ontario Superior Court of Justice

Her Majesty the Queen – and – Garren Brown, Brian Stewart, Donovan Brown & Wayne Blackwood

Ruling on Charter Application Brought by Wayne Blackwood

Justice James Stribopoulos

Released: September 30, 2019