Court File and Parties

Court File No.: CR-19-50000297-0000 Date: 2020-03-11 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Ishmael Robinson

Counsel: B. Glendinning, for the Crown S. Pennypacker, for Ishmael Robinson

Heard: 28 February 2020

Judge: S.A.Q. Akhtar J.

Factual Background

[1] In mid-2017, police began an investigation into the activities of the Five Point Generals, a criminal organisation operation in the area of Weston Road between Highway 401 and St. Clair Avenue West in Toronto. The organisation was suspected of committing crimes of violence, trading in firearms and drugs trafficking. As is the now common practice, the police came up with a name for their investigation: Project Patton.

[2] As part of their enquiries into the activities of the Five Point Generals, the police sought and obtained several judicial authorisations including Tracking Data and Transmission Data Recording warrants. The information gleaned from the execution of these warrants led to two further wiretap authorisations under Part VI of the Criminal Code being granted by my colleague, Code J. The first authorisation (Auth #1) was signed on 6 March 2018 with the second (Auth #2) coming into force on 29 April 2018.

[3] A more fulsome factual background to Project Patton may be found in the judgment of R. v. Brammall, 2019 ONSC 7334, where the issued warrants were the subject of an unsuccessful attack by other named targets.

[4] Here, the applicant claims that there was no basis for the police to name him as a target in Auth #1 under s. 185(1)(e) of the Criminal Code and seeks the exclusion of any resulting intercepted communications pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms.

The Grounds for Naming the Applicant

[5] The police outlined the following five items supporting the applicant’s inclusion in the information to obtain (ITO) Auth #1:

1. A confidential informant (CI 6) provided information, in the fall of 2017, that the applicant was supplying cocaine “on the kilo level” to the Five Point Generals;
2. The applicant was seen on 20 August 2017, in the company of Al Cox, an alleged Five Point General member, at Westwood Burger, an eating establishment on Weston Road;
3. The applicant was also seen, on the same occasion, in the company of another alleged member of the Five Point Generals, Jerome Robinson;
4. The applicant’s photograph was posted on a social media account associated to Rakeem Henry, another alleged member of the Five Point Generals;
5. The applicant’s criminal antecedents show that he was committing the type of offences perpetrated by members of the Five Point Generals.

[6] It is worth noting that Westwood Burger was identified in the ITO as a location within the self-identified “turf” of the Five Point Generals where drug deals would routinely occur. Indeed, the ITO explained that 27 Principal Known Persons were captured by a covert camera entering the establishment.

The Positions

[7] The applicant argues that the grounds specified in the ITO are both vague and stale in time. For example, says the applicant, there is no indication on the duration of time that the applicant was in Westwood Burger; his actions in Westwood Burger; or whether there was any drug or criminal activity taking place there. The applicant further argues that the social media information lacks any detail including the date it was taken or posted online. In addition, the applicant also submits that the manner in which his criminal antecedents were described in the ITO were misleading and exaggerated the extent of his criminal history.

[8] Consequently, the applicant argues that there is insufficient information tying him to the Five Point Generals and therefore no justification for his inclusion in the ITO.

[9] The Crown, on the other hand, submits that the applicant’s approach to challenging the ITO is flawed, inviting a piecemeal item-by-item scrutiny of the ITO rather than looking at the contents as a whole. It argues that when looking at the grounds in their entirety, it is clear that the threshold test for naming the affiant has been met.

Legal Principles

[10] Section 185(1)(e) of the Criminal Code demands that the affidavit supporting an application for a judicial authorisation 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”.

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

[12] Both parties rely upon the legal principles set out in paras. 70-78 of the Brammall judgment when advancing their positions. I need not repeat those principles other than to state that the threshold for naming individuals is not high and the ITO need not show that the applicant was engaged in any criminality. All that is necessary for a party to be named in an ITO is that their identity is known and the investigators have reasonable grounds to believe that the interception of their communications may assist in the investigation of an offence.

Analysis

[13] In determining whether the applicant should have been named in the ITO, I remind myself of the reasoning adopted by Dambrot J. in R. v. Riley, [2009] O.J. No. 738 (S.C.), at para. 216, where he observed that although there was no inference that most of the targets in the ITO challenged in that case had anything to do with the offence being investigated there were 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”.

[14] This rationalisation also applies in this case: do the grounds articulated in the ITO support the proposition that the investigation would have been assisted by intercepting the communications of the applicant?

[15] The ITO identified the applicant’s association with the Five Point Generals by placing him in a position of trading drugs with them, associating with two alleged members of the gang (Alan Cox and Jerome Robinson) at a place the Five Point Generals trafficked drugs. In addition, the ITO showed the applicant to be sufficiently known to another member (Rakeem Henry) so that his photograph appeared on Henry’s social media account.

[16] As I have already explained, there is no need for the ITO to demonstrate that the applicant was actually a member of the Five Point Generals or committed crimes with or for them. All that is needed to be established was that the applicant was in a position “to be told, to overhear, to state, or to repeat information relating to the gang and its activities”: Riley, at para. 216.

[17] The grounds relied upon by the affiant, in my view, more than meet this test. It is clear that the association between the applicant and the Five Point Generals was sufficiently strong that his intercepted communications would yield conversations with its members and therefore assist the investigation.

[18] Although I agree that each of the grounds, on their own, might well be subject to the criticism of being vague or stale, it is the cumulative effect of all the grounds that indicate that the interception of the applicant’s communications would assist in the investigation.

[19] With respect to the applicant’s criminal record, I respectfully disagree with the applicant’s contention that its description was framed in a manner that was misleading by suggesting that he may have been convicted of a firearms offence. The paragraph describing the offence made it clear that the applicant was convicted only of robbery and failing to comply with probation. I would add that even if the paragraphs relating to the applicant’s criminal record were excised from the ITO and unable to be relied upon, there would still be sufficient evidence to name the applicant.

[20] Finally, with respect to the applicant’s argument that the information in the ITO was stale, I agree with the Crown that the information must be placed in the context of the investigation as a whole.

[21] In R. v. James, 2019 ONCA 228, a similar argument on staleness was made when the affiant in the ITO sought to rely on information that the accused in that case had been involved in a drug transaction some two months before a search warrant was issued. A majority of the Court of Appeal held that the information was insufficient to support the argument that there were reasonable and probable grounds that drug evidence would be found in the accused’s car at the date of the search warrant’s issuance. Nordheimer J.A., dissenting, took the view that more than simply reference to the date of the information was necessary. At paras. 64-66, he explained:

The approach to the question of whether information is so dated such that it cannot be relied upon for the purpose of seeking a judicial authorization must be undertaken on a common sense and practical basis, taking all of the prevailing circumstances into account. As the British Columbia Court of Appeal observed in R. v. Ballendine, 2011 BCCA 221, 271 C.C.C. (3d) 418, at para. 54:

Merely because information is “dated” does not mean it is “stale”. While the length of time that has passed is to be taken into account in a reasonable-grounds determination, it is but one factor.

As the court in Ballendine also observed, on these issues, a court is entitled to draw common sense inferences regarding the activities of persons: at paras. 53, 55, 57. That common sense point was echoed by this court in R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, at para. 113:

[I]t would have been open to the authorizing judge to infer current criminality from past criminality in the circumstances disclosed by the evidence in the affidavit. In considering the capacity of the evidentiary predicate to ground a finding of probable cause, it is important to keep in mind the investigative objective and the nature of the alleged criminality involved. Ongoing criminal enterprises do not come into existence, nor do they disappear overnight. Information that seems dated at first blush can retain its relevance. [Emphasis added.]

The suggestion, implicit in the respondent's position, that three weeks after the respondent was observed driving from London to Windsor in order to deliver a significant quantity of cocaine to MD, he became disassociated from, and unconnected with, drug trafficking finds no common sense foundation.

[22] On appeal, the Supreme Court of Canada reversed the majority decision “substantially for the reasons of Justice Nordheimer, to the extent that he concluded that there was no breach of s. 8 of the Canadian Charter of Rights and Freedoms”: R. v. James, 2019 SCC 52.

[23] In this case, whilst the information that the applicant was involved in drug dealing with the Five Point Generals pre-dated the application for a warrant by several months, the entirety of the circumstances indicate that the investigation was ongoing at that time. The covert camera capturing the patrons of Westwood Burger was installed in June 2017; and the Tracking Data warrant in this case – the precursor to the wiretap warrant – was issued on 20 November 2017.

[24] It is clear that this was a large-scale investigation which required a significant amount of time and resources. All of the individuals that were ultimately named as targets were allegedly part of a criminal organisation committing different offences at different times. As was pointed out by Nordheimer J.A. in James, at para. 72, it was proper and practical that the police wait until all the requisite evidence had been obtained in respect of all the targets pursued in the authorisation so as to prevent duplication and undermining the investigation as a whole.

[25] In the circumstances of this case, with an investigation into countless individuals alleged to be part of the Five Point Generals it was proper for the police to delay its application.

[26] I accept, of course that the police must have the required reasonable and probable grounds for the authorisation when they submit the application. As I have already noted, the reasonable and probable grounds was based not on a single ground but a constellation of factors. The mere fact that the information, for example, regarding the applicant’s drug transaction with the Five Point Generals took place some months earlier when the police investigation was actively in motion, does not, of itself undermine the value of that information particularly when all of the factors are considered together.

[27] For these reasons, I find no breach of the applicant’s s. 8 rights and the application is dismissed.

S.A.Q. Akhtar J. Released: 11 March 2020