Court File No.: CR-20-30000255
Date: 2021-06-15
Ontario
Superior Court of Justice
Between:
Her Majesty the Queen
– and –
Mohammed Ilyas Patel and Mohammed Hafis Mohideen Hassan
Patrick Woods and Alexandra Rowell for the Crown
Brian Ross and SuJung Lee for the accused Mohideen Hassan
Marianne Salih and Humza Hussain for the accused Ilyas Patel
Heard: May 31, June 1, 2, 3, 2021
Publication ban under s.648 of the Criminal Code in relation to all portions of the trial where the jury is not present.
G. Roberts J.:
[1] Mohammed Ilyas Patel and Mohammed Hafis Mohideen Hassan stand jointly charged with the first degree murder of Dylan Greenaway shortly after midnight on March 16, 2017.
[2] I decided a number of pre-trial motions in relation to both accused in April (R. v. Patel and Mohideen Hassan, 2021 ONSC 2884). At this point, Mr. Patel brings a Garofoli application in relation to a number of authorizations. This application was not heard together with the earlier ones due to a delay in obtaining and disclosing the underlying Informations to Obtain (ITOs).
[3] Mr. Patel argues that the initial production order granted in relation to his cell phone data violated s.8 of the Charter, and should not have been issued, because the underlying ITO was rife with errors, omissions and misleading assertions. The police misconduct was serious, and the evidence obtained as a result of the production order should be excluded under s.24(2) of the Charter. Removing the fruits of the production order has a cascading effect on the subsequent authorizations; they are also invalid and the evidence obtained as a result should also be excluded.
[4] The Crown agrees that there are significant errors in the ITO, but argues that sufficient reliable evidence remains after excision and amplification to justify the production order. In the alternative, the evidence obtained as a result of the authorization should be admitted under s.24(2) of the Charter.
[5] I agree with both parties that the ITO in question contains significant errors, omissions, and misleading statements, and the police conduct giving rise to the issues was serious. However, I find that sufficient reliable evidence remains after excision and amplification to provide a basis upon which the production order could have been granted. Hence, I find no violation of s.8 of the Charter.
[6] Had I found a violation, I would admit the evidence under s. 24(2) of the Charter. The errors and omissions resulted from sloppiness and inexperience, in particular inexperience in responding to misplaced criticism of the first ITO. At the same time, the effect on Mr. Patel's privacy interests was limited both because the privacy interest itself lay a distance from the core of what s.8 protects, and because the state had a legitimate interest in the information requested. Finally, the information is reliable and essential to the Crown's case.
The authorizations in question
[7] There are four ITOs at issue in this application. The Crown refers to them by the unique 4 digits of their court file number. Defence counsel refers them as ITOs 1 to 4 in citations, though uses different numbers in the factum headings. For ease of reference I will link the labels used by defence counsel in citations with the labels used by the Crown:
ITO 1 - 3269: 4817-17-003269-00 sworn July 12th 2017, in support of a production order to Rogers Communications for usage data in relation to a number of phone numbers, and denied by JP Agnew on July 13th 2017;
ITO 2 - 3467: 4811-17-003467-00 sworn July 27th 2017, in support of a production order to Rogers Communications, substantially similar to ITO 1, except it no longer sought the subscriber information for numbers found in the requested records, and responded to JP Agnew's concerns in a manner that the present application shows was problematic, and granted by JP Hunt on July 27th 2017 [this is the ITO at the heart of this application];
ITO 3 - 5157: 4811-17-005157-00 sworn November 13th 2017, in support of a search warrant to a police locker which contained the white iPhone seized from Mr. Patel when he was arrested in relation to another matter on May 3, 2017, and granted by JP Hunt November 14th 2017;
ITO 4 - 1205: 4817-18-001205-01 sworn March 19th 2018 in support of production orders to Rogers Communications and Car2Go Canada Ltd., and granted by JP Hunt on March 19th 2018.
Chronology
[8] The chronology of events, including investigative events, includes the following:
Dylan Greenaway was abducted from the driveway of his friend Cory Veerapen's home shortly after midnight on March 16, 2017. He was beaten, stabbed or cut multiple times, and shot in the torso. His body was dumped in a school yard down the street, within minutes of his abduction. It was found around 8 am later the same day.
Automotive glass was found on the roadway between Cory Veerapen's home and the school yard where Dylan Greenaway's body was dumped.
Based on surveillance video, the car used in the abduction appeared to be a Mercedes GLA 250.
Police obtained a production order for Dylan Greenaway's telephone. They learned that the last call he answered was from 647-309-7059 at 12:03:07 on March 16, 2017. At the time of the call, 647-309-7059 was close by as it "pinged" off a cell tower 1.5 km from Cory Veerapen's home. The affiant referred to 647-309-7059 as the "suspect number".
Cory Veerapen and Abdul Majroh (who spent the evening of March 15-16, 2017 hanging out with Cory Veerapen and Dylan Greenaway), recalled Dylan Greenaway, who sold marijuana, getting a call and telling the caller he was coming out. Dylan Greenaway went outside with half a pound of marijuana in a vacuum sealed bag. He asked Cory Veerapen to come with him as he was uneasy because he had never dealt with the caller before.
Cory Veerapen followed Dylan Greenaway. Once outside, he heard Dylan Greenaway yelling for help from inside a car in the driveway, and saw his legs sticking out as if wrestling to get out.
Cory Veerapen tried to help Dylan Greenaway but a man from the car came out and scared him away, first with a knife, and when that did not work, with a long gun he retrieved from the trunk of the car. Cory Veerapen believed there were also two other men inside the car, a driver, and another man in the back holding Dylan Greenaway.
Police records connected the suspect number 647-309-7059 to Mr. Mohideen Hassan (DOB 1998.Jul.8).
ITO 2 sought a production order for telephone records for numbers which had direct contact with the suspect number up to a few days before the murder and were associated with people with a criminal history including violence. The numbers requested included 416-858-6618, which was associated to Mr. Patel (DOB 1998.Jul.08) in police records, and 647-761-7216 which was associated to Mohammad Sahil Gharda (DOB 2000.Nov.27) in police records.
The phone records obtained through the production order based on ITO 2 showed that 416-858-6618 (again, associated to Mr. Patel) was pinging off a cell tower close to the scene of the abduction at the relevant time: at 11:58 pm it was pinging off a cell tower 1.4 km away from Cory Veerapen house; by 12:06 am it was pinging off a tower 4 km away.
Cell records for 647-761-7216 (again, associated to Mr. Gharda) showed similar cell tower usage.
Mr. Patel was arrested on May 3, 2017 in relation to an unrelated matter (the arrest with Mr. Gharda in a rooming house where neither had permission to be, described below). Police seized Mr. Patel's cell phone at that time. Police relied on the fruits of the production order obtained through ITO 2 to obtain a search warrant for Mr. Patel's cell phone (search warrant was based on ITO 3, sworn November 13, 2017, by DC Cheung and granted by JP Hunt on November 14, 2017).
Police sought a production order for Mr. Patel's Car2Go records, and additional phone records and subscriber information of third parties who contacted him the day before the homicide (ITO 4 sworn March 19, 2018 by DC Cheung). The production order was granted by JP Hunt on March 19, 2018. Again, police relied on the fruits of the production order obtained as a result of ITO 2 for many of the grounds set out in ITO 4.
Car2Go records showed that Mr. Patel rented a Mercedes GLA 250 on March 15-16, 2017. Car2Go had a recording of Mr. Patel calling on March 16, 2017 to report a broken window in the car he had rented.
Descriptions
[9] Cory Veerapen gave the following descriptions of the man that got out of the car and scared him away:
March 16, 2017: 23-25 years old, 5'5", thin build (the reference in the ITO to a "thick" build is a typo), Sri Lankan or Somalian, bearded, wearing a dark toque and gray tracksuit with a hood (ITO 2 para19(u));
March 18, 2107: short with a short stubby beard;
July 12, 2017: male, 5'7", East African, Sri Lankan, or Somalian, single braided hair, wearing a toque with a pom-pom and a grey roots tracksuit.
[10] Cory Veerapen could only describe the two other men he saw in the car as Brown-skinned and between 23-25 years old.
[11] Around the time of events, Mr. Patel, Mr. Mohideen Hassan and Mr. Gharda were described as follows:
As of an October 14, 2017 arrest, Mr. Patel had brown skin, was 178 cm tall (5'10") and weighed 86 kilograms (about 190 pounds).
As of an October 17, 2017 arrest, Mr. Gharda was 157 cm (5'2") and 59 Kilograms (126 lbs).
Mr. Mohideen Hassan was described in Versadex as male, East Indian, brown skinned, 5'3", 160 lbs, short black hair.
[12] Cory Veerapen was shown a "non-traditional" line up with twelve photographs and instructed to explain if he recognized anyone. The line-up contained photographs of Mr. Mohideen Hassan, Mr. Patel, Mohammad Gharda, Rohulla Hadi, Hisham Pail, Abdul Popalzay, and Khorri Wisdom. Cory Veerapen did not pick anyone, explaining that the people shown were too light skinned.
Leave to cross-examine
[13] Defence counsel sought to cross-examine DC Chris Cheung, the affiant of ITO 2, on the following areas:
The number and nature of the contacts between the suspect number and 416-858-6618, due to incorrect statements about both.
The incorrect assertion that Mr. Patel was strongly associated to Mr. Gharda and Mr. Hadi, and had violent history.
The assertion that a production order will identify witnesses or parties to the homicide, including the failure to include the fact that Mr. Patel did not match the only detailed description Mr. Veerapen could provide.
The suggestion that 416-858-6618 may be associated with all three Patel brothers and not just Ilyas Patel.
[14] The Crown conceded that DC Cheung made almost all the errors alleged by the defence, and that cross-examination should be permitted in this case, as long as defence counsel did not intend to cross-examine on anything that could risk identifying a confidential informant (CI).
[15] I agreed with both counsel that cross-examination of DC Cheung was appropriate in the circumstances of this case.
[16] The requirement for leave to cross-examine an affiant is intended to ensure that the competing interests at stake are balanced, namely "the accused's right to make full answer and defence, the Crown and the court's obligation to protect the identity of confidential informants, and the court's obligation to make effective use of limited judicial resources by avoiding unnecessary and time-consuming proceedings": R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 (S.C.C.) at p.1465; R. v. Lising, 2005 SCC 66; World Bank Group v. Wallace, 2016 SCC 15 at paras.120-21; R. v. Green, at paras. 34-36; R. v. Shivrattan, 2017 ONCA 23, at paras. 37.
[17] Here the interests underlying the leave requirement all favoured permitting cross-examination:
The cross-examination could help defence counsel flush out significant errors in the ITO that could undermine the honesty or reasonableness of the affiant's belief that the grounds were sufficient, and potentially call into question the credibility of the entire ITO.
Defence counsel indicated that she had no intention of asking anything that could jeopardize the identity of the confidential informant (apparently the information from the CI did not relate to Mr. Patel).
The Crown acknowledged that in the event of a breach, the affiant's evidence would be relevant in assessing the seriousness of the police misconduct at the s.24(4) stage. Permitting cross-examination at the s.8 stage enhanced trial economy by permitting the entire application to be argued at once.
[18] In sum, in all the circumstances, I was satisfied that it was in the interests of justice to permit cross-examination on the areas requested. I also permitted the Crown an expanded right of reply, and defence counsel a right to cross-examine again (which did not prove necessary), in order to address s.24(2) of the Charter.
Cross-examination of Chris Cheung (the affiant for ITOs 1, 2, 3 and 4)
[19] Chris Cheung is a detective constable with the TPS. At the time of his testimony, he had been employed at the TPS for over 10 years and was attached to 32 Division in the criminal investigation bureau. At the time he drafted the ITOs at issue on this application he was on a one-year training program with the homicide squad. He had received some training on drafting ITOs - he took a 2-day course at police college, he believed around 2013. He understood that he had to affirm the truth of the contents of the ITO before submitting it to the justice. He also understood that the ITO should be as fulsome as possible.
[20] ITO 1 / 2 was the first ITO he drafted on a homicide, and by far the most complicated ITO he had ever drafted. He acknowledged that he was eager to get as much valuable information as possible to assist the investigation, and wanted to please his superiors in the homicide squad.
[21] Prior to testifying, the Crown emailed DC Cheung portions of the defence factum on the present application which summarized the facts, and which outlined the errors that defence counsel alleged that DC Cheung made in ITO 2. The Crown also sent DC Cheung copies of the 4 ITOs listed above (which Cheung had originally drafted). The Crown asked DC Cheung to verify that the errors alleged had been made, and to turn his mind to why the error occurred: "was it simply a drafting mistake? Is something taken out of context? Was it correct at the time but later shown to be false? Or whatever."
[22] The Crown also met with DC Cheung in advance of his testimony on the application. DC Cheung agreed that during this meeting they discussed the possible explanations for the errors outlined in the email. DC Cheung did not have any other explanation for the errors. They also discussed tactics used in cross-examination and how to navigate them.
[23] DC Cheung acknowledged that he shared the material the Crown sent him with his immediate supervisors, the members of his team, and another officer he worked an over-time shift with. He explained that he did so for "education purposes" because none of them had ever been cross-examined on an ITO before. Neither had he. He agreed that cross-examination of the affiant of an ITO was unusual. He acknowledged that he did not share the materials with the officer in charge of this case, or his superiors at the time he was working in the homicide squad. Nor did he ever discuss the errors with them.
[24] DC Cheung understood that the remedy the defence was seeking on the present application was for the evidence obtained as a result of all four ITOs to be excluded from the trial. He understood that this could end the case for the Crown. He agreed that he had spent over 100 hours working on the case, and that was not an outcome he desired.
[25] DC Cheung agreed that he believed that the suspect number was associated to Mr. Mohideen Hassan. One of the goals of ITO 2 was to confirm the holder of the suspect number and the associated cell phone at the material time. DC Cheung was also looking for parties and witnesses to the homicide. DC Cheung focused on the frequency of contact between the suspect number and other numbers. He also focused on occurrence reports related to Mr. Mohideen Hassan and his associates with a criminal history.
[26] At the time DC Cheung prepared the ITOs at issue he did not have experience reviewing telephone records. Nor had he heard a witness from a telco testify, to the best of his memory. He believed that the Rogers records for the suspect number were the first phone records he ever examined. He did not ask anyone for help or guidance in doing so - no one at the TPS, or from a telco. At the time he did not think he needed help.
[27] In ITO 2 DC Cheung summarized the interactions between the suspect number and several other phone numbers. For example, at paragraph 28 he summarized calls between the suspect number and a number registered to Farida Popalzai. At paragraph 45 he summarized calls between the suspect number and a number registered to Mr. Hadi. In both cases, he did not count duplicate calls that went to voice-mail. (Duplicate calls occur when the same call goes through multiple carriers before going to voice-mail.)
[28] DC Cheung testified that he defined contact as he used the term in ITO 2 to include a telephone call which connected, a text that connected, or a voice-mail that connected. He agreed that in order to count 112 contacts between the suspect number and 416-858-6618 in the period between March 8 and 16, 2017 he must have counted some duplicate calls. He also agreed that the only way to get to the number 18 "phone conversations" on the day before the homicide was to include voice-mail and duplicate calls.
[29] After finding numbers associated with the suspect number, DC Cheung checked the people associated with those numbers, including whether they had a criminal record or were involved in occurrences on record with the TPS. He did this because, as he explained in para.66 of the ITO, he inferred that "whoever committed this violent murder has previously been arrested for violent offences". He agreed that his checks of Mr. Patel showed that Mr. Patel had never been charged with a violent offence, such as robbery. Nor had he been arrested with a .22 calibre gun, but DC Cheung gave the impression that he had at para.59g of ITO 2. DC Cheung agreed that Mr. Patel had been arrested with Mr. Gharda, and Mr. Gharda was the only one charged with being in possession of the .22 calibre gun. DC Cheung agreed that he should have been more accurate in his summary.
[30] DC Cheung agreed that his assertion at para.47b, p.19, of the ITO that Mr. Patel and Mr. Gharda were squatting together in March was incorrect. He agreed that the only thing that the May 3 occurrence report established was that Mr. Patel and Mr. Gharda were found together in the rooming house where Mr. Gharda and others had been found squatting the previous March. It was incorrect that Mr. Patel and Mr. Gharda squatted together in March. DC Cheung explained that he mis-read the prosecution summary in relation to the May 3 incident. He explained that at the time he drafted ITO 2 he believed Mr. Patel and Mr. Gharda had been squatting together in March. Now that he realized his mistake, he agreed that "strong" may have been too "heavy" a word to use to describe the connection between Mr. Patel and Mr. Gharda.
[31] DC Cheung agreed that his investigative checks did not reveal any association between Mr. Patel and Mr. Hadi, or Mr. Gharda and Mr. Hadi. He agreed that it was false to suggest that connections existed. He explained that when he drafted para.59g, which suggests that such connections existed, he was trying to summarize a lot of information into a small paragraph in order to address the concerns of JP Agnew. The inaccuracy was not intentional.
[32] DC Cheung agreed that when he drafted ITO 2 he believed that 416-858-6618 was associated with Mr. Patel, though he did not know how police came to link that number with Mr. Patel. He explained that most often this occurs through an individual giving the TPS their number. He agreed that this association existed in Versadex before he drafted ITO 2. DC Cheung agreed that the only specific information in the ITO about the linkage was the occurrence when Mr. Mohideen Hassan told police his name was Bilal Ahmed, and told them to call his "brother" Mohammed at 416-858-6618 to verify his identity. The man who answered said he had two younger brothers, but neither was named Bilal. The number was associated with Mr. Patel in Versadex.
[33] DC Cheung explained that he included information that 416-858-6618 was registered to Mr. Patel's mother Sadeka Pandor at 410 McCowan Rd #31, where Mr. Patel lived with his two younger brothers (Mohammed Hisham Patel DOB 1999.Dec.28 and Mohammed Saeed Patel DOB 2001.Apr.30), in order to give a full account. He also believed it was important to investigate the brothers as well. He denied that he was trying to leverage Hisham's criminal history of violence in doing so. He agreed that Hisham's cell phone number (647-979-6618) never came up in the records for the suspect number. Nor did the Patel's home number 416-266-6618.
[34] DC Cheung testified that when he indicated at para 67 of the ITO (p.31) that he was only requesting records for numbers associated with persons of interest with a history of violence who still fit the description that he was referring to age and skin colour. He was aware Mr. Patel was 18 or 19 and taller and heavier than the person holding the gun. The only thing he knew about the others in the car was that they were Brown-skinned and 23-25 years old. He did not note Mr. Patel's height or weight anywhere in the ITO.
The test for the review of a prior judicial authorization
[35] A production order pursuant to s.487.014 of the Criminal Code requires that the authorizing justice or judge be satisfied by information on oath in Form 5.004 [an ITO for a production order] that there are reasonable grounds to believe that
(i) an offence has been or will be committed…; and
(ii) the document or data [being requested] is in the person's possession or control and will afford evidence respecting the commission of the offence. (See also R. v. Vice Media Canada Inc., 2017 ONCA 231 at para. 28, aff'd 2018 SCC 53.)
[36] A judge reviewing an authorization for a production order (or any other form of prior judicial authorization) does not substitute her view for that of the authorizing judge. Rather she asks only whether, based on the totality of circumstances before the authorizing judge, as amplified on review, the authorizing judge could have concluded that the prerequisites for issuing the authorization were met. The "sole impact" of fraud, non-disclosure, misleading evidence and new evidence "is to determine whether there continues to be any basis for the decision of the authorizing judge": Garofoli, at p.1452. However, only reliable information can properly found a basis for an authorization. The Supreme Court subsequently added a nuance to the test to make this clear:
In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued": R. v. Araujo, 2000 SCC 65, at paras.51, 54; R. v. Morelli 2010 SCC 8 at para.40.
[37] In conducting a review of an authorization, it is straight-forward that misleading and incorrect information must be excised from the ITO, and disregarded. But it is also necessary to consider the nature of any defect. A deliberate attempt to mislead may affect not only whether amplification is permissible, but also whether what remains in the ITO after excision and amplification is sufficiently reliable that it might reasonably be believed: Araujo, para.54; R. v. McLetchie, 2011 ONSC 1016 at paras.29-30; R. v. Debartolo, 2018 ONSC 916 at para.38.
[38] Amplification is permissible to correct errors made in "good faith" where "there was no deliberate attempt to mislead" through evidence that was available at the time the ITO was prepared. Amplification is intended to ensure form is not put above substance where police had the requisite basis for an authorization; it must not be used to permit circumvention of the requirement for prior judicial authorization: Araujo, paras.50-61; Morelli, paras. 41-43; R. v. Paryniuk 2017 ONCA 87 at para 46; R. v. Booth, 2019 ONCA 970 at paras.57-65
[39] The reasonable and probable grounds standard requires proof of reasonable probability or reasonable belief. There must be a "credibly-based probability" the authorization will afford evidence of the named offence or offences. The standard "requires more than suspicion, but less than proof on the balance of probabilities". The review begins from the presumption that the authorization was valid, and the ITO "must be read as a whole and an issuing judge may draw common sense inferences from the information provided": R v. Muddei, 2021 ONCA 200 at para.37-38 [citations omitted]. f the inferences of criminal conduct and the recovery of evidence are reasonable in all the circumstances set out, then the authorization could have been issued.
[40] Even where the evidence that remains after excision and amplification is sufficiently reliable that it might reasonably be believed and it provides a basis on which the authorization could have issued, a reviewing justice has a residual discretion to set the authorization aside "where police conduct has subverted the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like". The standard required in order to exercise this discretion is "high": Paryniuk, at para.69-70 [citations omitted]; Araujo, at para.53. Where setting aside the authorization would effectively end the Crown's case, the standard is tantamount to the residual category of abuse of process ("clearest of cases"): Paryniuk, at para.80; R. v. Jageshur (2002), 2002 45116 (ON CA), 169 C.C.C. (3d) 225 at para.69.
Analysis
[41] Defence counsel argues that after the errors in the ITO are excised, and the omissions amplified, what remains in the ITO is neither reliable enough, nor sufficient to provide a basis for the production order. Defence counsel does not rely on the residual discretion to set aside an otherwise valid warrant affirmed in Paryniuk.
[42] The Crown largely agrees with defence counsel about what must be excised, and what can be amplified, and takes no issue with the defence additions. However, the Crown argues that the evidence that remains is reliable and provides a sufficient basis for the production order.
Amplification and Excision
[43] Crown counsel acknowledged that there are a number of significant errors in the ITO. The cross-examination of Detective Constable Christopher Cheung flushed these out, as did the submissions of counsel. I will set out the errors and then consider their effect on the ITO.
The number of contacts between the suspect number and 416-858-6618 in the approximate week before the homicide was incorrect.
[44] DC Cheung swore that between March 8 and 16, 2017 there were "112 contacts between 416-858-6618 and the Suspect phone number". As noted, DC Cheung explained in his evidence that he defined "contact" as a connected call, a call that went to voice-mail, or a connected text message. He arrived at his number by looking at the phone records for the suspect number and manually counting the number of times the 416-858-6618 number was noted in either the "Originated Number" or "Destination Number" columns of the telephone records for the suspect number which were provided by Rogers. On his definition there were in fact only 93 contacts between March 8 and 16, 2017.
[45] DC Cheung was cross-examined extensively on "duplicate calls". At the preliminary inquiry, Robert Costanzo, an investigator from Rogers, explained that duplication of entries can occur when the same phone call goes through different networks. The duplicates appear fairly obvious on the face of the telephone records as the identical or almost identical time is shown for the duplicate calls. There is no dispute that there were 43 duplicate calls going to voicemail during the period between March 8 and 16, 2017.
[46] DC Cheung did not have the benefit of Robert Costanzo's evidence at the time he swore the ITO. Nor did he seek help from anyone at Rogers, or within the TPS, regarding how to interpret the Rogers telephone records he had for the suspect number. Nonetheless, he appears to have taken duplication into account in doing his counts, or at least attempted to. Had he not considered it he would have arrived at 136 contacts. Other parts of the ITO demonstrate he took duplication into account (see for examples paragraphs 28 and 45 of the ITO).
[47] Defence counsel argued that it was misleading to include calls that went to voice-mail in the tally of contacts. I disagree. While it would have been preferable for DC Cheung to define what he included in the term "contact" in the ITO, I think it is reasonable to define it in the manner that he did. Specifically, I believe that it is reasonable to conclude that a call connected to voice-mail is a contact. It is a form of communication; even if no message is left.
[48] I agree with the Crown that DC Cheung's over-count of contacts can be characterized as minor in so far as it does not change much: a fairly large number of contacts becomes somewhat less large. But it is still large. The correction does not change the nature of the contact, and the potential inference it gives rise to.
[49] Nor do I think the mistake reflects an intention to mislead. In this regard, I note that the phone records for the suspect number in the period between March 8 and 16, 2017, put before me in both Application Records, and added to the record at the request of defence counsel, show significant connections to 416-858-6618 beyond the sheer number of contacts. The two telephones are in contact every day of this period, consistently and at all hours. If anything, DC Cheung understated the connection between the two numbers in referring only to a bare count of the number of contacts. In these circumstances I do not think the fact that his count is 19 contacts higher than it should be reflects any intent to mislead. ITO 2 may be amplified to correct the number of contacts between March 8 and 16, 2017 from 112 to 93.
The contacts on the day before the homicide were miscounted and mischaracterized as conversations.
[50] DC Cheung asserted that "On the day before the homicide, 416-858-6618 has 18 separate phone conversations with the Suspect phone number". This was incorrect. Three were 15 calls that went to voice-mail, plus 2 texts. Thus, there were 17 contacts (as DC Cheung defined this term in his evidence), but none of these contacts could fairly be described as a "conversation". This was incorrect and misleading. The Crown fairly agrees with defence counsel that this error cannot be corrected through amplification. It must be excised. I agree.
Mr. Patel's criminal history was repeatedly described as more serious than it was
[51] In ITO 2, DC Cheung noted that the TPS had six "Toronto Police Incident" reports on file in relation to Mr. Patel. DC Cheung went on to describe three of them:
The most recent incident was in relation to an arrest on May 3, 2017 for possessing 5.9 g of cocaine. Mr. Patel was with Mr. Gharda at the time in a rooming house where neither had permission to be. Mr. Gharda was arrested at the same time for possessing a sawed off .22 calibre Savage Arms hunting rifle found in a gym bag in the rooming house. The rifle had a spent casing in the chamber. Mr. Gharda had two .22 calibre rounds in his pants pocket.
Mr. Patel was arrested on January 23, 2016, together with his brother Mohammed Saeed Patel for possession of marijuana. He had a black BB gun in his backpack at the time.
DC Cheung described the fact that latent fingerprint impressions linked to both Mr. Patel and Mr. Mohideen Hassan were found inside a vehicle stolen from "Advance Motor Cars" dealership at 799 Brimley Road. School books and property with the names Hafiz Mohideen and Abdul Popalzay were also found inside the vehicle. The vehicle was stolen on October 15, 2016, and found on October 22, 2015 near 651 Brimley Road.
[52] This initial description of Mr. Patel's criminal history was accurate except that when DC Cheung described the May 3, 2017 incident, he noted that "both accused" had previously been found squatting in the same rooming house in March. This was incorrect. As noted above, only Mr. Gharda had previously been found squatting in the rooming house. The Crown agrees that this assertion must be excised. I agree but simply note that I found the "prosecution summary" in relation to the May 3, 2017 incident, put before me on the application by the defence by way of amplification, confusing. Separate summaries are done for Mr. Patel and Mr. Gharda. The summary for Mr. Patel, where he is noted as the only accused, and no one else is listed, reads "At the end of march to the beginning of April Parvez [the property owner] kicked out the accused who is a Young offender who was at the time was squatting, and part of a larger group." It is necessary to calculate Mr. Patel's age from the date of birth at the top of the page to figure out he was 18 at the time and thus could not be the accused referred to in the summary.
[53] After giving this mostly accurate description of Mr. Patel's criminal record (subject to the error about squatting in March), DC Cheung then repeatedly mis-described Mr. Patel's criminal history as being much more serious than it was:
"MR. HADI, Mr. Patel, and MR. GHARDA have all been arrested with .22 calibre rifles, which are smaller calibre firearms. They have all been charged with serious criminal offences such as unauthorized firearm possession and robbery." (para.59(g))
"I have established MR. GHARDA as being recently charged with a sawed off .22 cal rifle with Mr. Patel." (para.59(h))
"The above males [MR. HADI, the three Mohammed PATEL brothers, Mohammed MR. GHARDA] have all been charged with violent offences with MR. HADI and MR. GHARDA charged with unauthorized firearm possession in the form of a rifle, which was described by witness VEERAPEN." (para.62)
"I am only requesting records from numbers I believe I have established connections to these persons of interest with a history of violence who still fit the description offered by VEERAPEN." (para.67)
[54] Both counsel agree that these misdescriptions must be excised.
Mr. Patel's connection to Mr. Gharda is over-stated
[55] DC Cheung swears that "There is a strong association between them [MR. HADI, Mr. Patel and MR. GHARDA], not only as friends, but as co-accused in criminal offences." In fact, there was no association between Mr. Patel and Mr. Hadi. Nor is there evidence of any relationship between Mr. Gharda and Mr. Hadi, let alone that they were friends or co-accused in criminal offences. Mr. Patel's association with Mr. Gharda was not as strong as suggested, as explained above. The Crown agrees that the assertion that Mr. Patel and Mr. Gharda were squatting together in March must be excised. The same goes for the assertion of a connection between Mr. Hadi and Mr. Patel. The description of the connection between Mr. Patel and Mr. Gharda as "strong" must also be excised.
Mr. Patel's appearance is not probative
[56] When DC Cheung swore that he was only requesting records of persons "who fit the description offered by Veerapen" this was misleading. Cory Veerapen was only able to describe the person who got out of the car in any detail: 5'5"-5'7", thin build, aged 23-25. Mr. Patel manifestly did not match this description: he was 5'10", 190 lbs, aged 18. It is agreed that the ITO should be amplified to include a description of Mr. Patel. Cory Veerapen believed there were two other men in the car who he could only describe as Brown-skinned, 23-25 years old. The fact that Mr. Patel is Brown-skinned is not probative beyond the very broad fact that Cory Veerapen's description cannot exclude him as one of the men in the car when Dylan Greenaway was abducted. But there are thousands of young Brown men in Toronto.
Other
[57] Defence counsel also argued that it was misleading for DC Cheung to assert that the 416-858-6618 number is associated to the Patel brothers. I disagree. The ITO explains that the 416-858-6618 number is registered to Mr. Patel's mother at their home address. It explains further that Mr. Patel lived in the home with his two younger brothers, all close in age. The ITO provided further information about each Patel brother, including any cell phone numbers associated with the brother. I do not see anything unfair or misleading in this section. Specifically, I do not see it as trying to leverage Hashim's more violent criminal history. To the contrary I see this section as providing full, fair, and frank disclosure.
Defence information
[58] I agree with both counsel that the ITO may be amplified to add information to correct potential omissions in the ITO. Specifically, I agree with defence counsel that the ITO may be amplified to add the following information:
Mr. Patel's weight and height (his age was already indicated);
The phone records associated with the suspect number;
The fact that there was no connection between the suspect number and Hisham Patel (Mr. Patel's brother) in the records for the suspect number.
Does there remain reliable evidence that might reasonably be believed on the basis of which the production order could have issued?
[59] At this stage, it is not for me to decide whether I would have granted the production order, or to judge the conduct of the affiant beyond assessing the reliability of the information that remains. I must simply assess whether what remains in the ITO after excision and amplification provides a basis upon which the authorizing justice could have granted the production order. I believe it does. What remains in the ITO includes the following:
The suspect number had a strong connection to the homicide - it appeared to be the number that summoned Dylan Greenaway out to his abduction and killing.
Police records showed that the suspect number was connected to Mr. Mohideen Hassan.
Police records showed that the 416-858-6618 number was connected to Mr. Patel.
The suspect number was connected to 416-858-6618 leading up to and after the homicide, specifically:
The suspect number had 93 contacts with the 416-858-6618 number in the 10 days before the homicide. The amplification requested by the defence shows that the numbers were in contact on each of these days, and at all hours.
The 416-858-6618 number called the suspect number within two hours of the homicide. The ITO notes that the homicide occurred "near 12:05 am March 16, 2017" and the two numbers had a 6 second phone conversation at 1:41 am on March 16, 2017. Based on the pattern in the prior 10 days, a call at this hour was not unusual.
Another cell phone associated with the Patel home (416-829-7678) had significant contact with the suspect number on the day before the homicide: 7 connected calls plus 2 calls going to voice-mail. In addition, during the period between March 8 and 16, 2017, there were 59 contacts (23 texts; 21 connected calls; 15 calls going to voice-mail). I note that just because the number (416-829-7678) is not linked solely with Mr. Patel does not mean that it is not a reasonable inference that he was the person using it to make contact with the suspect number. The fact that he has two younger brothers close in age who could have been using the phone simply means there are other possible inferences too. However, there does not appear to be any link between Mr. Mohideen Hassan and Mr. Patel's younger brothers.
Police records showed Mr. Mohideen Hassan and Mr. Patel were connected, including in context of potential criminal activity:
During an interaction with police on October 17, 2016, Mr. Mohideen Hassan gave police the false name of "Bilal Ahmed" and told police to call his brother "Mohammed" at 416-858-6618 to verify his name. When police called the number, the male who answered indicated he had two younger brothers, but neither was named Bilal. This is consistent with Mr. Patel answering the number as he has two younger brothers, neither named Bilal. The 416-858-6618 number is associated with Mr. Patel in Versadex.
Latent prints from Mr. Patel and Mr. Mohideen Hassan were found inside a vehicle which had been stolen from a dealership. The vehicle was stolen from a Scarborough dealership on October 15, 2016; it was found not far away on October 22, 2016.
When Mr. Patel was arrested together with his brother Saeed on January 23, 2016, for being in possession of marijuana, he had a BB gun in his backpack.
A telephone number associated with Mr. Gharda (5359) was also linked to the suspect number, including in the afternoon before the homicide.
Mr. Patel was connected to Mr. Gharda, who had a history of violence and involvement with a firearm that appeared similar to the one used in the abduction and killing. Specifically, On May 3, 2017 both were found inside a rooming house where neither had a right to be. When police were called to remove them, Mr. Patel was found with 5.9 g of cocaine in a satchel he was carrying. Mr. Gharda had two .22 cartridges in the pocket of his pants. A sawed off .22 calibre Savage Arms rifle was found in a gym bag with a spent casing in the chamber. Only Mr. Gharda was charged with possession of the firearm.
Mr. Gharda had a criminal history of significant drug trafficking.
[60] I believe this evidence is sufficiently reliable that it may reasonably be believed. While it is not strictly necessary to separate this step out, I do so here, given the number and nature of DC Cheung's errors and omissions. In addition, defence counsel argued that the Crown improperly assisted DC Cheung in his testimony by alerting him to the defence strategy on the application and preparing him to respond to it.
[61] It is generally not appropriate to share the opposing side's legal argument with a witness: R. v. Paris, 2006 11655 (ON CA), [2006] O.J. No. 1445 (C.A.) at paras.24-26. However, there is nothing wrong, and often much right, in preparing a witness to testify by focusing their attention on the factual matters in issue, asking them to think about them in advance of testifying, and asking whether there are any explanations for problematic areas. I am satisfied that this is what happened here, even if some of the language the Crown used in email correspondence with the affiant was less than ideal.
[62] In any event, the above information that I have outlined remains in the ITO and exists apart from the affiant, and is independently verifiable. Its cogency does not turn on the credibility or reliability of the affiant. It may reasonably be believed. Taken together, I believe it provided a basis for the authorizing justice to conclude that there were reasonable grounds to believe that the cell phone records associated with the 416-858-6618 number would provide evidence of the offence.
24(2) of the Charter
[63] In light of my finding that there was no Charter violation, it is not necessary to consider s.24(2) of the Charter. But given that evidence was called on s.24(2) (DC Cheung's evidence was always intended to address both s.8 and s.24(2) of the Charter), and full argument made, I set out my findings regarding the seriousness of the police misconduct and its impact on Mr. Patel's right to privacy, and how I would balance the three Grant factors.
Seriousness of the police misconduct
[64] Were I to have found a Charter violation in this case, I would situate the police misconduct giving rise to it as serious, falling somewhere in the middle of the spectrum of seriousness (which generally runs from minor errors made in good faith under the honest and reasonable belief that the action was lawful, at the least serious end, through negligence, systemic violations, to intentional violations which are planned and deliberate, at the most serious end).
[65] I agree with the Crown that the defects in the ITO can be divided into two categories, both of which situate the police misconduct as serious. The first category encompasses simple mistakes. I do not believe that the mistakes involve an intent to mislead. But they are serious for a couple of reasons. First, there are a lot of them. When I consider them cumulatively, I believe they are unreasonable and rise to the level of negligence. Second, they could have mis-led the authorizing justice. The true state of affairs was not otherwise apparent, which had the result that the error was misleading. Ultimately, I conclude that these errors reflect sloppiness and inexperience amounting to negligence, but they do not reflect an intention to mislead.
[66] The most serious error is the assertion that the contacts between the suspect number and 416-858-6618 on the day before the homicide were "conversations". As noted, they were not. They were texts and voice-mail messages. DC Cheung readily acknowledged this was a mistake, but I do not have an explanation for why or how the mistake was made. Nonetheless, I do not believe that it reflects an intent to mislead. The error did not significantly enhance the grounds. I note that it falls in a paragraph which follows the format of the paragraph immediately above which described contacts between the suspect number and 416-829-7678, the other cell phone registered to Mr. Patel's mother (described above). Defence counsel carefully investigated the assertions in both paragraphs, and placed the underlying data before me as part of the defence request to amplify. The first paragraph dealing with 416-829-7678 also contains an over-count of contacts, but unlike the paragraph dealing with 416-858-6618, the description of the contacts on the day before the homicide as "conversations" is correct. In short, I find DC Cheung's error misleading. But I cannot find it was intentionally misleading.
[67] The other serious error is DC Cheung's over-count of the number of contacts between the suspect number and 416-858-6618 in the period between March 8 and 16, 2017. He also miscounts the number of contacts between 416-829-7678 and the suspect number in the same period. Defence counsel makes a compelling argument that this was intentional because both counts are too high. I do not think it is as simple as this. Defence counsel carefully cross-examined DC Cheung on the underlying data from the phone records for the suspect number to demonstrate that at other parts of the ITO Cheung appeared to understand that some of the calls were duplicates, and he did not double-count them when describing them in the ITO (see for example paras.28 and 45 of the ITO). But deliberate double-counting cannot explain the discrepancy in the count: if DC Cheung had double-counted he would have arrived at 136 contacts not the 112 he asserts (it is agreed that 93 is the correct count).
[68] Ultimately, I cannot find that the too-high miscounts demonstrates an intent to mislead. First, I do not think there is a meaningful difference between 112 contacts over this period and 93; both are significant. Second, when I consider the data from the underlying phone records, it suggests a strong association between the numbers not captured by the simple count of contacts. These numbers are in constant contact over the stated period: every day, and at all hours. A careful description of this would have strengthened the grounds. In other words, there was more DC Cheung could have legitimately said about the strength of the connection between the two numbers. This suggests to me that the miscount was the result of error and inexperience, and not an intent to mislead.
[69] DC Cheng was wrong when he asserted that Mr. Patel and Mr. Gharda were squatting together in March. This error is serious as it is not apparent on the face of the ITO. But I also find it understandable to some extent. As noted, I found the synopsis about the May 3, 2017 arrest of both Mr. Patel and Mr. Gharda confusing. In addition, even without this mis-statement the connection between Mr. Patel and Mr. Gharda is still significant. In the circumstances I cannot find an intent to mislead. Again, I find sloppiness and inexperience amounting to negligence.
[70] The second category of misconduct involves overstatements. On the one hand, this misconduct is more serious than the first category, as it reflects a lack of frankness that comes perilously close to an intention to mislead. On the other hand, this misconduct is less serious because the over-statements (with the exception of the description of Mr. Patel which I will address separately) are apparent on the face of the ITO. Ultimately, I find that these errors reflect inexperience amounting to negligence, but not an intention to mislead.
[71] When DC Cheung addressed JP Agnew's concerns about ITO 1, he compressed and over-stated his grounds in para.59(g) p.25 of the ITO. The summary is mis-leading and suggests an intention to mis-lead in so far as it is tailored to respond to JP Agnew's concerns. But I cannot find this intention, as the true state of affairs is properly described elsewhere.
[72] I believe the over-statement occurred because of inexperience. DC believed, correctly in my view, that he always had a sufficient basis for a production order. It is well-established that circumstances must be considered in context and in totality. DC Cheung could simply have re-applied for the production order, scrupulously explaining exactly what happened before JP Agnew. He did not need to spell out the strength of the connections to try and respond to JP Agnew's misplaced concerns. Unfortunately, DC Cheung tried to explicitly set out the strength of the connections by compressing them into a summary. In doing so he was inaccurate and misleading. But I do not believe he intended to be. Properly considered, as I have tried to do above, the totality of circumstances did provide a sufficient basis for the production order.
[73] The one over-statement that is not apparent on the face of the ITO is DC Cheung's assertion that he is "only requesting records from numbers I believe I have established connections to these persons of interest with a history of violence who still fit the description offered by VEERAPEN." Veerapen could only give a meaningful description of the man who got out of the car and threatened him. He could only describe the other two other men in the car generally as young and Brown. Mr. Patel did not match Veerapen's description of the man who got out of the car. At best, Veerapen's description meant Mr. Patel could not be excluded as one of the men inside the car, something of no probative value given the number of people falling into the same category. DC Cheung's assertion was misleading, and the true state of affairs was not otherwise apparent. But again, I find the assertion born of inexperience and negligence. In addition, it had limited if any impact on the grounds. As with the above error, it was added to respond to JP Agnew's concerns (see the chart where defence counsel carefully tracks the mis-statements across the four ITOs at issue). Read in context, DC Cheung does not rely on the assertion as strengthening the actual grounds for his request, but to respond to JP Agnew's concerns, and explain that his request was tailored and responsive to the circumstances.
The impact of the misconduct on Mr. Patel's protected privacy interests
[74] The Crown acknowledged that if ITO 2 violated s.8 of the Charter, so too do ITOs 3 and 4 as they rest on the fruits of ITO 2. The evidence obtained as a result of these subsequent ITOs reflects different privacy interests, none of which lie at the very core of s.8, but rather fall along a spectrum, beginning some distance from the core. I will address the records, moving backwards from those furthest from the core of what s.8 protects.
[75] The records obtained from Car2Go are business records held by a third party. They were created as a result of Mr. Patel's decision to rent a car from Car2Go. They also include a recording of Mr. Patel's report to Car2Go the day after the offence that a window of the car he rented had been broken. While Car2Go required police to obtain a production order for these records, I agree with the Crown that they reflect a diminished privacy interest.
[76] The records obtained as a result of ITO 2 reflect a privacy interest closer to the core of s.8, but still a distance out. They consisted of numbers contacted by way of text or telephone, the date, time and duration of the contact, and whether it was a call, text, or voice-mail. None of the content of the actual communication was requested or provided. Nor was subscriber information for the numbers contacted requested or provided. In addition, the cell tower engaged by the contact was provided, which could give an approximate location of the cell phone at the time. While much of this information may occur in public, it may reveal significant information about someone, especially when combined with other information.
[77] The records obtained as a result of ITO 3 lie closest to the core of s.8 in so far as they include the actual content of Mr. Patel's cell phone. But I agree with the Crown that not all the records flowing from ITO 3 fall within this category. I agree that the IMEI and IMSI numbers associated with Mr. Patel's phone do not reveal biographical information and in fact fall a distance from the core of what s.8 protects.
[78] I find that the impact of the police misconduct is diminished in so far as the police had a proper basis to obtain the production order, thus Mr. Patel's expectation of privacy in the related information was diminished.
[79] I reject the defence suggestion that the police misconduct is aggravated in so far as it rendered Mr. Patel's subsequent arrest and strip search illegal. Defence counsel argued that if the evidence obtained as a result of ITO 2 is excluded, it must be excised from all subsequent ITOs and there is no longer any basis for the arrest of Mr. Patel, rendering the arrest illegal. I reject this argument.
[80] It is well-established that a judicial authorization is presumed to be valid: Lising, at para.30. At the time Mr. Patel was arrested police were acting pursuant to reliable evidence obtained from valid judicial authorizations. The present application was not only unperfected and undecided, but years in the future.
[81] Furthermore, as matter of logic and constitutional principle, the reasonableness of state action is assessed based on what was known at the time it occurred. The very threshold test for the cross-examination of an affiant makes this clear. As the unanimous Supreme Court reiterated in World Bank (para.122):
[A]n error or omission is not relevant on a Garofoli application if the affiant could not reasonably have known of it (para. 41). Testing the affidavit against the ultimate truth rather than the affiant's reasonable belief would turn a Garofoli hearing into a trial of every allegation in the affidavit, something this Court has long sought to prevent (Pires, at para. 30; see also R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721 (Ont. C.A.), at para. 21).
[82] Other illustrations abound, including the Supreme Court's decision in R. v. Paterson, 2017 SCC 15 at para.19 where the Court is unanimous in affirming that:
A Charter voir dire…involves a review of the totality of the circumstances known to, and relied upon by, the state actor at the time of the impugned action. To be clear, only the state actor's contemporary state of mind and conduct is at issue.
Society's interest in adjudication on merits
[83] The third inquiry is concerned with the impact of the admission or exclusion of the evidence on the integrity of the trial process. The integrity will suffer if reliable, cogent evidence is excluded. At the same time, the routine admission of evidence gathered by unconstitutional means will also undermine the integrity of the trial process: R. v Grant, 2009 SCC 32 at paras.79-81. In this case, the evidence obtained as a result of all three ITOs was reliable and essential to the Crown's case.
[84] The offence is the most serious in the Criminal Code. This cuts both ways in the s.24(2) analysis. The public has a heightened interest in seeing a determination on the merits where the offence charged is serious. At the same time, society has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high: Grant, at para. 84. When I consider all of these circumstances, I find that the third branch favours admission.
[85] Considering and balancing the 24(2) factors as a whole, I believe that they favour admission. In particular, I find that the first two inquiries taken together reveal weaker support for the exclusion of the evidence, tending to confirm my conclusion with respect to the third inquiry that the administration of justice would not be brought into disrepute by admitting the evidence: R. v. Le, 2019 SCC 34 at para.142.
GILLIAN ROBERTS J.
RELEASED: JUNE 15, 2021
Court File No.: CR-20-30000255
Date: 2021-06-15
Ontario
Superior Court of Justice
Between:
Her Majesty the Queen
– and –
Mohammed Ilyas Patel and Mohammed Hafis Mohideen Hassan
REASONS FOR RULING RE: GAROFOLI APPLICATION
G. ROBERTS J.
RELEASED: JUNE 15, 2021