COURT FILE NO.: CR-19-10000476-0000

DATE: 20191217

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CARL BRAMMALL, CLINT CHARLES, JAMAL CHARLES, ALAN COX, SHANE EVANS, RAKEEN HENRY, GARY JOHNSON, MATTHEW MANGAL

B. Glendinning, C. Otter, and A. Schultz, for the Crown

C. Bottomley and H. Dudding, for the Applicants

HEARD: 18-20 November 2019

s.a.Q. akhtar j.

FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] In October 2017, police embarked upon an investigation into the activities of criminal organisations operating in the area of Weston Road between Highway 401 and St. Clair Avenue West in Toronto. The gangs involved were suspected of firearms and drugs trafficking, as well as committing crimes of violence using guns as their main weapons. The investigation would come to be known as “Project Patton”.

[2] The criminal organisation of greatest concern to the police was the self-styled “Five Point Generals”, whose modus operandi was to intimidate and inflict violence as a means of ruthlessly eliminating rivals from its “turf”. At the time of the operation, the Five Point Generals were involved in a war with two other gangs: the Scarletwood Crips and the Queen Drive Crips.

[3] The Five Point Generals were not unknown to the police: they had previously been investigated as part of another wiretap operation, Project Corrall. Many of its members had been convicted as a result. However, the Crown alleges that this setback did not impair their criminal thirst and they continued their Five Point Generals membership.

[4] As part of Project Patton, the police sought and obtained a Tracking Data Warrant and a Transmission Data Recording Warrant (T/TDRW1) from Kelly J. of the Ontario Court of Justice on 20 November 2017. A second Tracking Data Warrant and a second Transmission Data Recording Warrant (T/TDWR2) were granted on 18 January 2018.

[5] Information acquired through these warrants was utilised in the Information to Obtain (ITO) an authorisation to intercept private communications under Part VI of the Criminal Code. Two authorisations were granted by Code J. on 6 March 2018 (Auth. #1) and 29 April 2018 (Auth. #2). Auth #1 permitted the police to intercept the communications of 138 targeted individuals whilst Auth #2 contained 150 targets.

[6] Detective Constable Christopher Hunt was the sworn affiant in both ITOs, the stated objective being to collect evidence of the membership of the Five Point Generals and its criminal activities.

[7] The wiretap operation resulted in the capture of thousands of communications with dozens of accused being arrested and charged. Of those arrested, eight apply to challenge their inclusion in the ITO and seek exclusion of their recorded conversations.

The Applicants

[8] At the outset, the applicants concede that the Five Point Generals is a criminal organisation within the meaning of the Criminal Code and take no issue with the hierarchy and the identity of its leaders.

[9] The entire validity of Auth. #1 and Auth. #2 is also not challenged in this hearing. Rather, the eight applicants attack their inclusion in two discrete ways, both of which, they say, result in a breach of their s. 8 Charter rights and require exclusion of their communications under s. 24(2) of the Charter.

[10] First, two applicants, Carl Brammall and Matthew Mangal, submit that the police had no grounds to seek intercept warrants in a Tracking Data Warrant or Transmission Data Recording Warrant in which they were the subjects. The resulting information from these warrants was used to support their inclusion in both ITOs. Mr. Brammall and Mr. Mangal argue that if this court accepts their position then the information obtained from the T/TDRWs used in the ITO must be excised. As a consequence, the police had no legal authority to intercept their communications which must be excluded as evidence.

[11] The remaining applicants, Clint Charles, Jamal Charles, Shane Evans, Rakeem Henry, Alan Cox, and Gary Johnson, argue that they should not have been named in the ITOs as the conditions set out in s. 185(1)(e) of the Criminal Code were not met.

THE VALIDITY OF THE WARRANT

Legal Principles

[12] As I have noted, the validity of the wiretap warrants as a whole is not in issue. However, the reviewing principles in this case remain the same particularly with respect to the tracking data warrants.

[13] For convenience’s sake, I recite those principles that apply in determining this application.

[14] A constitutionally challenged ITO is presumed to be valid and the onus of establishing its invalidity in a Charter application rests upon the challenging party: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 83.

[15] It is trite law that the review of a judicially authorised warrant does not involve a de novo hearing of the validity of the warrant where the reviewing judge substitutes their view for that of the authorising judge. The review consists of an evaluation of the record which was before the authorising judge 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. 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.

[16] None of these principles are in dispute in this hearing.

Step Two of Garofoli

[17] In Garofoli, at p. 1461, Sopinka J. set out the following procedure to deal with redacted ITOs:

1. Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.

2. The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.

3. After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.

4. After the determination has been made in (3), the packet material should be provided to the accused.

5. If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.

6. If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfil that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.

[18] Confidential informants formed a significant part of the challenged material in this case with many paragraphs of the ITO disclosed to the defence redacted to protect their identities. In accordance with Step 2 of Garofoli, I conducted a hearing to remove some of the redactions or provide a summary of the contents of the concealed material.

[19] The applicants consented to an ex parte hearing in camera to allow the court and the Crown to engage in a more detailed discussion about what items were properly covered by informer privilege and what could be disclosed. This ex parte procedure makes sense as it permits the court to engage in direct, detailed questioning of why particular material has been hidden from the applicants’ eyes.

[20] As a result of my discussions with the Crown, additional, previously redacted material was provided to the applicants or summarised to disclose the substance of the concealed information.

[21] The Crown elected to proceed on the basis of Step 5 of Garofoli, i.e., rely only on those parts of the ITO and summaries that had been disclosed to the applicants.

THE TRACKING/TRANSMISSION DATA RECORDING WARRANTS

The Legal Requirements

[22] Two statutory sections are relevant to the application regarding the Tracking Data and Transmission Data Recording Warrants in this case.

Tracking Data Warrants

[23] Section 492.1(2) of the Criminal Code deals with the police tracking of an individual’s movement and provides:

492.1 (2) A justice or judge who is satisfied by information on oath that there are reasonable grounds to believe that an offence has been or will be committed under this or any other Act of Parliament and that tracking an individual’s movement by identifying the location of a thing that is usually carried or worn by the individual will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain that tracking data by means of a tracking device. [Emphasis added.]

Transmission Data Recording Warrants

[24] Section 492.2(1) of the Code sets out the threshold for issuing a judicial authorisation to obtain a transmission data recording warrant:

492.2 (1) A justice or judge who is satisfied by information on oath that there are reasonable grounds to suspect that an offence has been or will be committed against this or any other Act of Parliament and that transmission data will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain the transmission data by means of a transmission data recorder.

[25] The distinction between the two sections is that in the case of a Tracking Data Warrant, reasonable grounds to believe that a warrant will assist in the investigation must exist, whereas in the case of Transmission Data Recording Warrant, a lesser standard of reasonable grounds to suspect is mandated.

[26] The distinction in law was highlighted in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 27-8, where the court explained:

Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.

The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime. In spite of this reality, properly conducted sniff searches that are based on reasonable suspicion are Charter-compliant in light of their minimally intrusive, narrowly targeted, and highly accurate nature: see Kang-Brown, at para. 60, per Binnie J., and A.M., at paras. 81-84, per Binnie J. However, the suspicion held by the police cannot be so broad that it descends to the level of generalized suspicion, which was described by Bastarache J., at para. 151 of A.M., as suspicion “that attaches to a particular activity or location rather than to a specific person”.

[27] There is no requirement to name devices known to them or to demonstrate that a particular person is the owner of a mobile device before obtaining a Tracking Data Warrant or a Transmission Data Recording Warrant. The police must either believe (in the case of a Tracking Data Warrant) or suspect (for a Transmission Data Recording Warrant) that the warrant will assist in the investigation of the offence.

The Tracking Data Warrant: Carl Brammall

[28] Carl Brammall was named in both T/TDRWs as well as the Part VI authorisations. He does not contest his naming within the T/TDRWs or the Part VI authorisations.

[29] However, he challenges the inclusion of two particular numbers in the T/TDRWs that the police alleged that he resorted to using: 647-716-1607 (1607) and 647-713-6781 (6781).

[30] The Crown concedes that the police had insufficient grounds to believe that Mr. Brammall was using the 1607 number and, accordingly agrees that any information obtained on the 1607 line cannot be used in T/TDRW2 or for the purposes of supporting the grounds for the other numbers covered by the TDRWs.

[31] In light of that concession, Mr. Brammall focuses his attack on the inclusion of 6781 in T/TDRW2, arguing there was a dearth of evidence tying him to this number, pointing out that the affiant believed, prior to the issuance of T/TDRW1, that someone other than Mr. Brammall was using the phone number. This, says Mr. Brammall, is evidenced by the fact that the police did not seek to include 6781 in T/TDRW1.

[32] Mr. Brammall also points out that the affidavit supporting the T/TDRW2 application showed that 6781 was not activated until October 2016. This post-dated the one piece of information that did link Mr. Brammall to the number: a police report showing that Mr. Brammall had self-identified 6781 as his number in September 2015. This discrepancy in dates, says Mr. Brammall, was not provided to the justice who issued T/TDRW2. He argues that the lack of connection between himself and 6781 meant that its inclusion in T/TDRW2 was invalid.

[33] The applicants argue that if this is true, the information resulting from tracking 6781 and relied upon in the ITO used to obtain Auth #1 must also be excised and any calls resulting from the authorisation must be excluded.

[34] For the following reasons, I reject the applicants’ submissions and find that the police had reasonable and probable grounds to believe that 6781 was Mr. Brammall’s number and would assist in the investigation of the Five Point Generals.

[35] First, contrary to Mr. Brammall’s argument, there was information that the number belonged to Mr. Brammall in T/TDRW2.

[36] As noted, the affiant did not seek tracking of 6781 in T/TDRW1 because he did not believe Mr. Brammall to be using the number. He explained this omission in the ITO for T/TDRW2, correctly providing the two significant dates: Mr. Brammall providing 6781 as his own number in September 2015 and the later activation date of October 2016.

[37] Acting on this information, the affiant made clear his reasoning: the October 2016 activation date led him to conclude that Mr. Brammall was not using the phone in October 2017. At para. 41(g)(iv) of the T/TDRW2 ITO, he wrote that “if Brammall was utilizing that number at the time I conducted the intelligence query in October of 2017, it would stand to reason that the activation date should have been prior to September 2015, when he initially provided it to the police.” The obvious conclusion was that someone else was using the phone after October 2016.

[38] However, according to a police report, Mr. Brammall again provided the 6781 number to the police in December 2016, two months after the activation date in October. Even though that was not expressly referenced in the T/TDRW2, the information was included as an appendix to the application. In other words, the information was before the issuing justice when the police applied for T/TDRW2.

[39] Nor did the affiant ever say, in T/TDRW2, that he believed Mr. Brammall was not connected to 6781. To the contrary, at para. 41(g)(vii) of the T/TDRW2 ITO, the affiant expressly averred that he believed 6781 was associated to and being used by Mr. Brammall.

[40] Moreover, there was other information giving police reasonable grounds to believe that Mr. Brammall was connected to the 6781 number through its link to another number that the police had connected to Mr. Brammall:437-991-0441 (0441).

[41] A confidential informant told the police that Mr. Brammall was associated with 0441. When the police obtained an assistance order to confirm the identity of the 0441 subscriber, they discovered that the number was registered to “Chris Williams”. After investigating the subscriber information for the 6781 number, the police found that it, too, belonged to a person named “Chris Williams”.

[42] The coincidences did not stop there. The 0441 number was registered to an address of 27 Colbolt Avenue, a street that did not exist. The 6781 number was registered to Chris Williams at 75 Finch Avenue, an address which, without the East or West suffix, was also ambiguous. On further investigation, police could find no internal reports linking a “Chris Williams” to either address.

[43] The two numbers were further linked by phone calls to two separate members of the Five Point Generals. The 0441 number was found to have received over 15 phone calls from Gary Popwell, a leading member of the Five Point Generals. 6781, on the other hand, received several calls from Akiel Eubanks and Dalton Young, other leading individuals in the Five Point Generals hierarchy.

[44] To summarise, the ITO contained evidence that Mr. Brammall was connected to both 0441 and 6781 through a confidential informant and his own reporting to the police. Both numbers were subscribed to the same name, “Chris Williams”, at addresses that appeared to be false. Both numbers were in contact with three leading members of the Five Point Generals and, finally, Mr. Brammall had prior association with that gang.

[45] Despite the applicant’s impressive submissions, this was more than sufficient information to provide the police with reasonable and probable grounds to believe that 6781 was linked to Mr. Brammall and would assist in their investigation.

[46] Accordingly, Mr. Brammall’s application fails.

The Transmission Data Recording Warrant: Matthew Mangal

The Road to 2905

[47] Mr. Mangal seeks to exclude data obtained from the number 647-640-4905 (4905) which emanated from the judicial grant of T/TDRW1. If successful, that would lead to the exclusion of calls intercepted on Mr. Mangal’s 416-602-2905 (2905) line.

[48] The route the police took from 4905 to 2905 is set out as follows:

• By intercepting information from 4905, the police discovered over 90 contacts between 4905 and 647-283-2098, the phone number belonging to Nicholas Anastaskakis, between 21 November 2017 and 21 December 2017.

• Using this information as grounds, the police sought permission to intercept calls on Mr. Anastaskakis’ number in their ITO for Auth #1.

• After Auth #1 was issued the police continued to listen to calls between Mr. Anastaskakis number and 416-602-2905 (2905) where the caller self-identified as Mr. Mangal.

• This self-identification provided the grounds to intercept Mr. Mangal’s calls on the 2905 number as a result of a “resort to” clause contained in Auth. #1.

• The 2905 calls were subsequently used by the police as grounds for intercepting communications on the 2905 line in Auth. #2.

[49] Thus, the issuance of TDRW1 provided a path to the interception of calls on the 2905 line in Auth. #1 and #2.

[50] Mr. Anastaskakis was not charged with any Project Patton offences. However, Mr. Mangal has standing to challenge calls on Mr. Anastaskakis’s line based on his reasonable expectation of privacy in those communications pursuant to the principles in R. v. Shayesteh (1996), 1996 CanLII 882 (ON CA), 31 O.R. (3d) 161 (C.A.), at p. 173.

[51] Mr. Mangal takes his argument all the way back to square one and submits that there was no basis to intercept the 4905 number in T/TDRW1. If he is correct, the police would not have been able to subsequently intercept Mr. Anastaskakis’ phone line and therefore obtain Mr. Mangal’s 2905 number.

[52] In an appropriate concession, the Crown acknowledges that if Mr. Mangal succeeds, all calls and evidence deriving from the 2905 number must be excluded from the evidence at trial. However, the Crown submits that the applicants’ claim should be rejected.

The Confidential Informant

[53] The grounds to suspect that 4905 was associated with Mr. Mangal came from information provided by a confidential informant hereinafter referred to as CI #1.

[54] Reliance on a confidential informant brings into play the “3 Cs” rule – compelling, credible and corroborated – enunciated in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140. Wilson J. writing for the court, at p. 1168, made it clear that each of the “3Cs” was not to be looked at in isolation but as a whole:

I do not suggest that each of these factors forms a separate test. Rather, I concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.

[55] In deciding whether information provided by a confidential informant is “compelling” the reviewing court must look at the specificity of the information, its currency, and whether the information is derived from first-hand knowledge of the relevant facts: R. v. Amare, 2014 ONSC 4119, at para 84, aff’d 2015 ONCA 673.

[56] In this case, CI #1 provided the police with information in respect of 17 different individuals. Much of the information was provided through first-hand personal knowledge. The information was detailed, providing contact numbers, details of specific criminal activity and their location, the cars used by individuals, whether the individuals were in custody or on bail, if they had been released, and names of family members. Much of the information was corroborated by the police.

[57] Here the applicants concede that the credibility of CI #1 is not in issue because of his prior history of providing accurate information to the police which resulted in criminal charges being laid. However, the applicants contend that the information provided by CI #1 fails the Debot test of “compelling”.

[58] CI #1 provided information that Mr. Mangal was known as “Anthony” and had just got out of jail, that he dealt crack cocaine (and provided the location of his dealings), had a gun which CI #1 had not seen, and gave police the 4905 number. Some of this information was corroborated by police investigation.

[59] The applicants argue that whilst CI #1 gave a large amount of information with respect to other individuals, there was scant information with respect to Mr. Mangal. In essence, the applicants’ argument is that the Debot criteria must be applied to each and every individual rather than to the information provided as a whole.

[60] I reject this argument.

[61] First, Debot itself does not contemplate such an approach. At para. 63 of the judgment, Wilson J. wrote:

In my opinion, it should not be necessary for the police to confirm each detail in an informant's tip so long as the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence.

[62] Secondly, in Garofoli, at p. 1457, Sopkina J. summarised the principles defining the correct approach to be taken when evaluating information from a confidential informant and stated:

(ii) The reliability of the tip is to be assessed by recourse to "the totality of the circumstances". There is no formulaic test as to what this entails. Rather, the court must look to a variety of factors including:

(a) the degree of detail of the "tip";

(b) the informer's source of knowledge;

(c) indicia of the informer's reliability such as past performance or confirmation from other investigative sources. [Emphasis added.]

[63] In R. v. Riley, 2009 CanLII 7177 (ON SC), [2009] O.J. No. 738 (S.C.), Dambrot J., following the “totality of the circumstances” guidance in Garofoli, explicitly rejected the position now advanced by Mr. Mangal. At para. 126, he made the following observations:

The totality of the circumstances approach endorsed by the Supreme Court generally, and in relation to informant information in particular, does not require me, as the reviewing judge, to examine each piece of information provided by each of the informants individually and consider whether each is sufficiently sourced, detailed or otherwise shown to be reliable to be taken into account in assessing the existence of reasonable and probable grounds. Fulfilling such a task in the circumstances of this application would be endless, and I will not pretend to have done it.

[64] I agree with and adopt these comments. See also: R. v. Reid, 2017 ONCA 430, at para. 28.

[65] Mr. Mangal’s position, if correct, would lead to a very bizarre set of investigative techniques. For example, let us say that a confidential informant provided particulars regarding the criminal behaviour of two suspects but could only provide detailed information with respect to one. Under Mr. Mangal’s interpretation of Debot, the police could only intercept that suspect but not the other. That would be a very strange and undesirable restriction on the use of judicially authorised intercepted communications. I would add that this type of piecemeal approach to analyses of warrants has been consistently rejected: R. v. Hafizi, 2016 ONCA 933, 343 C.C.C. (3d) 380, at paras. 48-9; R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148, at para. 68; R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 223.

[66] I conclude that the Debot test deals with the reliability of the confidential informant on the material information they supply as a whole and not on each and every piece of evidence provided. See also: R. v. Richards, 2016 ABQB 176, 35 Alta. L.R. (6th) 354, at para. 92; R. v. Guthrie, 2018 ONSC 788, at para. 12; R. v. Russell, 2012 BCSC 1801, at para. 82; R. v. Saunders, 2003 NLCA 63, at para. 15, aff’d 2004 SCC 70; R. v. Sanghera, 2012 BCSC 1197, at para. 119; R. v. McElroy, 2009 SKCA 77, 337 Sask. R. 122, at paras. 41-43.

[67] As previously described, CI #1 provided compelling and corroborated evidence about the membership and activities of the Five Point Generals. He was a credible source based on past history and his inclusion in TDRW1 was justified.

[68] Accordingly, the police had reasonable grounds to suspect that Mr. Mangal’s 4905 line would assist their investigation. It follows that there was sufficient evidence before the issuing justice to issue T/TDRW1 in respect of that number and that the police had subsequent lawful authority to intercept communications on Mr. Anastaskakis’s phone line in Auth. #1.

[69] For these reasons, Mr. Mangal’s application is dismissed.

WERE THE PARTIES PROPERLY NAMED?

[70] Section 185(1)(e) of the Criminal Code mandates the affidavit supporting an application for a judicial authorisation to include “the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence”.

[71] In addition, s. 186(4)(c) requires the authorisation to “state the identity of persons, if know, whose private communications are to be intercepted”.

[72] In R. v. Mahal, 2012 ONCA 673, 113 O.R. (3d) 209, at para. 70, the court described this requirement as containing two components: identity and investigative assistance. When both are satisfied, the target is defined as a “known” person and must be described in that manner in the authorisation to intercept communications: R. v. Chesson, 1988 CanLII 54 (SCC), [1988] 2 S.C.R. 148, at p. 164.

[73] Various authorities have confirmed that the threshold for naming a target is not particularly onerous: Mahal, at para. 71; R. v. Abdullahi et al, 2014 ONSC 6036, at para. 22; R. v. Abdirahim, 2013 ONSC 7420, at para. 33; R. v. Schreinert (2002), 2002 CanLII 44932 (ON CA), 165 C.C.C. (3d) 295 (Ont. C.A.), at para. 43. Mere suspicion is not enough to “name” a target: Hafizi, at para. 46. However, the ITO need not show that the target is themselves involved in criminality: Riley, at paras. 214-5; Abdirahim, at para. 50; R. v. Finlay and Grellette (1985), 1985 CanLII 117 (ON CA), 23 C.C.C. (3d) 48 (Ont. C.A.), at p. 72; R. v. Samson (1983), 1983 CanLII 1918 (ON CA), 9 C.C.C. (3d) 194 (Ont. C.A.), at pp. 201-202.

[74] Nor does the affiant need to show that there are reasonable grounds to believe that the interception of the named person’s communications will provide evidence of a listed offence. All that is necessary is that “[i]nvestigators must know a person's identity and have reasonable grounds to believe that the interception of that person's private communications may assist in the investigation of an offence to trigger the identification or "known person" requirement”: R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, at para. 105.

[75] The question for the reviewing judge is to determine whether the information in the ITO sufficiently links the named target to the offences investigated or others involved in the offences to conclude whether the interception of their communications could assist in the investigation of those offences: R. v. Nugent (2005), 2005 CanLII 790 (ON CA), 193 C.C.C. (3d) 191 (Ont. C.A.), at paras. 8-9.

[76] The applicants argue that the mere fact that they might have been familiar with members of the gang did not provide reasonable grounds to believe that intercepting their communications may have assisted in the police investigation. I do not agree.

[77] In Riley, at para. 216, Dambrot J. commented on internal relationships within a gang’s membership and those individuals likely to possess or receive relevant information of the gang’s activities:

[78] There were no grounds to believe that most of the persons named in these two authorizations had participated in the murder of Charlton. The justification for intercepting the private communications of most of the targets was based on the common sense proposition that because there were reasonable grounds that Riley killed Charlton, and that he did so on behalf of his gang, there were also reasonable grounds to believe that it would assist the investigation to intercept: individuals who were members or trusted associates of members of the gang, persons who committed crimes with members of the gang or who accommodated the gang in carrying out its activities, and trusted relatives, girlfriends, or other confidants of members of the gang who, as a result, was likely to be told, to overhear, to state, or to repeat information relating to the gang and its activities. I appreciate that this proposition casts a wide net. However, I believe it to be a legitimate exercise of the power to authorize the interception of private communications, and to be in the interests of the administration of justice in a case involving a cold blooded murder in broad daylight with no apparent motive as part of an effort to terrorize a community in the course of a gang war. And as Doherty J.A. repeated in Nugent, the threshold for naming someone as a "known" person in an authorization is a low one. That is not to say that privacy should simply give way to law enforcement in a serious case. Rather, the wiretap legislation must be viewed and interpreted with a full, fair and realistic appreciation of its two objectives: to protect privacy, and to recognize the need to intercept private communications in the investigation of serious crime (see the judgment of Dickson J., as he then was, in dissent in Commisso at pp. 4-5). [Emphasis added.]

[79] Applying these legal principles, I turn to each of the applicants who dispute their naming in the ITO.

Clint Charles

[80] The following information was set out in the ITO as the grounds for naming Mr. Charles:

• Mr. Charles had several documented nicknames including that of “Triggs”

• Mr. Charles had a criminal record including a 2011 conviction for possession of cocaine for the purpose of trafficking

• In 2010 Mr. Charles was one of the subjects of “Project Corral”, a prior investigation into the criminal activities of the Five Point Generals. This investigation resulted in Mr. Charles being arrested and convicted for drug offences

• Mr. Charles had an Instagram account with an Instagram “handle” of “realtriggs”. That account linked him with 11 other “knowns” including two other leading members of the Five Point Generals: Joseph Dawkins and Akiel Eubanks

• On 4 November 2017, Mr. Charles posted an image on his Instagram account which showed him posing with Orrett Frances, another “known” in the ITO. Both were making “W” signs with their hands, a gesture that has been linked to Weston Road, part of the Five Point Generals claimed territory

• On 25 January 2016, Mr. Charles posted a photo montage labelled “Free the 5” which included picketers of Joseph Dawkins and Shane Evans, both “knowns” in the investigation. Included in the attached post were the comments: “Free 5PG”, “Team Weston” “We5ton Rd”, “FreeTheGenerals” and “Salute”

• On 15 January 2017, Villan Knight, another “known” being investigated, posted an image of himself, Rakeem Henry and Akiel Eubanks with the hashtags “Real Weston Road” “Free The5” and “SouthJane4Ever”. Mr. Charles responded by posting a comment using the hashtags “FreeThe5” and “SSWR”

[81] In my view, there was more than enough grounds to name Mr. Charles in the ITO. The evidence showed, at the very least, association with leading members of the Five Point Generals if not full membership in the organisation. This association provided the link to the investigation as described above in Nugent.

[82] The applicants agree that if I find that Clint Charles was properly named in the ITO then the police had sufficient grounds to name his brother, Jamal Charles. Accordingly, both Clint Charles and Jamal Charles’ applications are dismissed.

Shane Evans

[83] The following grounds to name Shane Evans were contained in the ITO:

• Mr. Evans associated with Mr. Brammall, another “known” person as evidenced by an Instagram post by Mr. Brammall on 25 October 2017. In this image Mr. Brammall can be seen posing with Mr. Evans

• CI #11, providing first-hand information, identified Mr. Evans as a Five Point Generals member

• CI #1 identified Mr. Evans as a “known” drug dealer in the spring of 2017

• Mr. Evans sports a Five Point Generals tattoo

• Mr. Evans was the subject of Project Corrall involving the Five Point Generals and was convicted as a result of that investigation for the offence of commission of an offence for a criminal organisation and two counts of conspiracy to commit an indictable offence (trafficking cocaine)

• The Correctional Report used in the ITO stated that Mr. Evans was a member of Five Point Generals

• On 14 January 2018, Rakeem Henry, another “known” person, posted a video to his Instagram account which included Mr. Evans and Rashard Green, another “known” person named in the ITO

[84] I agree with the Crown that there is more than sufficient evidence to show a link between Mr. Evans and the investigation applying the principles set out in Nugent and Riley.

Rakeem Henry

[85] The applicants acknowledge, in their factum, that “there is evidence to suggest that Mr. Henry knows members of the Five Point Generals and is associated with the Weston Road community”. The applicants also concede that Mr. Henry appears in rap videos with members of the Five Point Generals and the TDRW results demonstrate “frequent contact between Mr. Henry and members of the gang.” However, they also argue there is no evidence that he was involved in any illegal activity.

[86] For the reasons already set out, there is no requirement that Mr. Henry be involved in criminal conduct to be named. The factors I have already described would be sufficient to name Mr. Henry pursuant to s. 185(1)(e) of the Criminal Code. However, there is additional evidence to show that Mr. Henry did partake in criminal activity. For example, both CI #1 and CI #5 provided information that Mr. Henry was involved in drug dealing, selling crack cocaine.

[87] Based on the above, I find there was more than sufficient grounds to name Mr. Henry.

Alan Cox

[88] The following items of evidence were set out in the ITO as grounds for naming Mr. Cox:

• Mr. Cox attended Westwood Burgers, an area of significance in the investigation where many other Five Point Generals members gather

• Mr. Cox was present at Westwood Burgers at the same time as Gary Popwell and Gary Johnson, two other “known” persons

• Mr. Cox was known to associate with Mr. Brammall, an alleged leader of the Five Point Generals

• Mr. Cox has a criminal record for firearms and drug trafficking offences

• Mr. Cox’s two brothers, Adam and Al, are “known” persons alleged to be members of the Five Point Generals whose status as named individuals has not been challenged

• On 10 October 2017, Adam Cox posted a picture on social media depicting himself and his brother captioned “Gang my family”

[89] Given Mr. Cox’s association with other alleged Five Point Generals members, his attendance at a known Five Point Generals hangout, and the fact that his brothers, who he would presumably communicate with on a regular basis, are alleged to be Five Point Generals members, I find that there is more than enough evidence for Mr. Cox to have been named in the ITO.

Gary Johnson

[90] Without formally abandoning their application with respect to Mr. Johnson, the applicants concede that the Crown’s argument with respect to the inclusion of Mr. Johnson as a named person in the ITO is “very persuasive”. I agree.

[91] CI #5 informed police that Mr. Johnson was part of the Five Point Generals organisation. CI #5 also provided a phone number for Mr. Johnson which was confirmed through a review of police records. The T/TDRW data revealed that the number provided (647-537-5488) had been in contact with numbers associated to Shane Henry, Jerome Robinson, Dalton Young and Al Cox, all alleged members of the Five Point Generals. The TDRW data also showed the 5488 number contacted a number associated to Akiel Eubanks, alleged to be one of the leading members of the Five Point Generals, over 70 times between 7 December 2017 and 7 January 2018

[92] Accordingly, there were sufficient grounds to name Mr. Johnson in the ITO.

Nicholas Anastaskakis

[93] The applicants concede that their argument with respect to Mr. Anastaskakis’ naming in the application is tied to Matthew Mangal’s application to exclude the results from the TDR warrant. Having rejected Mr. Mangal’s challenge, the argument in relation to Mr. Anastaskakis’s naming in the warrant also fails.

CONCLUSION

[94] For these reasons, the s. 8 application with respect to all the applicants is dismissed.

[95] I would be remiss if I did not commend all counsel for their preparation, co-operation, efforts to streamline the process, and excellent advocacy.

S.A.Q. Akhtar J.

Released: 17 December 2019