COURT FILE NO.: CR-18-1037 (Brampton) DATE: 2021-07-09
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Ashor Mamado Applicant
Counsel: Patrick Travers, for the Crown Deepak Paradkar and Jassi Vamadevan, for the Applicant
HEARD: June 2, 2021
REASONS FOR DECISION
SECTION 8 CHARTER APPLICATION TO EXCLUDE EVIDENCE
Sproat J.
Introduction
[1] I was appointed to hear this application as a case management judge. The Applicant seeks to exclude evidence seized pursuant to a search warrant.
[2] I thank Mr. Travers and Mr. Vamadevan for their thorough and helpful oral submissions.
[3] The Affiant of the Information to Obtain (“ITO”) was hospitalized on the hearing date. Counsel for the Applicant, however, indicated that they did not wish to cross-examine. The parties agreed that I could rely on the facts set out in the ITO and the other materials filed. As appears from the factum filed by the Applicant and the Crown, there were no material differences as to the essential facts.
OVERVIEW OF THE ITO
[4] I will begin by reviewing the facts set out in the ITO.
[5] The ITO explained that there are three typical fraudulent schemes. This case fell into category three in which a fraudster opens a bank account in a fictitious name. This creates a credit bureau profile that allows the fraudster to apply for credit, such as by obtaining a loan or credit card.
[6] Mary Sisco, the Bank of Montreal (“BMO”) manager at Square One Shopping Centre, provided a statement to police indicating that on November 9, 2016 two BMO customers, Rany Rodikh and Fade Hermez, met with her. They advised her that a BMO employee at her branch, who by description was Raymond Filian, and the Applicant were involved in a fraudulent scheme. This scheme involved multiple BMO accounts being opened, for over three years, with fictitious names and personal information. I will simply refer to these as fraudulent accounts. Some cash would be deposited, the account would be inactive for about a year, and then used to obtain BMO credit cards or a loan.
[7] Rodikh told Ms. Sisco that he and the Applicant met with Filian on February 20, 2016 and opened an account in the fictitious name of Rani Pedros. A fraudulent cheque for $403 was deposited in this account on October 11, 2016. The cheque was returned “stolen and counterfeit” so that BMO did not suffer any loss. Rodikh and Hermez provided Ms. Sisco with a copy of an Application for Credit in the name of Rani Pedros.
[8] Rodikh and Hermez also provided Ms. Sisco with mail addressed to Toma W. Robert. It turned out that there was a BMO account, at Ms. Sisco’s branch, opened using this fictitious name. It was closed on June 23, 2016 due to two fraudulent cheques being deposited. BMO suffered no loss on the two cheques. BMO did, however, issue five credit cards in the name of Toma William Robert that had an outstanding balance of $41,475.
[9] Ms. Sisco reported what she had learned to the Peel Regional Police (“PRP”) on November 16, 2016. On November 22, 2016 the Affiant, a member of the PRP, met with Joanna Szramek, a fraud investigator employed by BMO. Ms. Szramek provided the Affiant with a list of 31 accounts, opened by Filian, that she believed were based on fictitious information. Fifty-two credit card applications related to the fraudulent accounts were made from July, 2013 to November 19, 2016. BMO has lost $155,000 related to this fraudulent activity.
[10] The PRP conducted driver’s licence searches and found that none of the licence numbers provided to open the accounts were valid. The PRP also had Immigration, Refugees and Citizenship Canada search Canadian citizenship numbers associated with 12 of the accounts and were advised that none of the citizenship numbers were valid.
[11] The issuing justice could also take from the ITO that:
a) the Applicant was present at BMO on February 13, 2014 with a man who attempted to activate a credit card in the name of “Joseph Madison”. This is one of the fraudulent account names;
b) there are video time stamped images showing that the Applicant went to BMO on March 14, 2014, October 14, 2016 and November 20, 2016 and met Mr. Filian. (I agree that the ITO is conclusory and, therefore, deficient as to how Ms. Szramek reached the further conclusion that fraudulent accounts were opened during meetings at BMO between the Applicant and Filian. The issuing justice would not know if this was by a time stamp or account documentation or simply an inference from the Applicant’s association with the fraudulent accounts or by some other means. I, therefore, agree that part of the ITO could be given little weight.)
c) there are video images showing that on May 26, 2016, the Applicant attended a BMO branch and deposited $400 into an account in the name of Nick Maddinson. This is one of the 31 fraudulent accounts.
d) there are video images showing that on April 9, 2016 the Applicant attending a BMO branch depositing $500 into an account in the name of Daniel Demarco. This is one of the 31 fraudulent accounts.
e) there are video images showing that on September 9, 2016 the Applicant attended a BMO branch and deposited $1,500 to the account of Steve Michael. Ms. Szramek also advised that the Applicant signed the name “Steve Michael”. This is one of the 31 fraudulent accounts.
[12] The ITO was sworn on November 28, 2016 and the warrant was granted.
[13] The PRP did not attempt to interview Rodikh or Hermez prior to obtaining the warrant.
THE LAW
[14] In R. v. Sadikov, 2014 ONCA 72 Watt J.A. provided a helpful summary of the general principles governing a challenge to a search warrant, as follows:
[81] The statutory standard – “reasonable grounds to believe” – does not require proof on the balance of probabilities, much less proof beyond a reasonable doubt. The statutory and constitutional standard is one of credibly-based probability: Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 167; and R. v. Law, 2002 BCCA 594, 171 C.C.C. (3d) 219, at para. 7. The ITO must establish reasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the proposed search: Hunter, at p. 168. If the inferences of criminal conduct and recovery of evidence are reasonable on the facts disclosed in the ITO, the warrant could be issued: R. v. Jacobson (2006), 2006 CanLII 12292 (ON CA), 207 C.C.C. (3d) 270 (Ont. C.A.), at para. 22.
[82] The authorizing justice makes his or her decision about whether to issue the warrant from the evidence included in the ITO as a whole, approaching the assessment on a common sense, practical, non-technical basis. The justice, like the trier of fact at a trial, is also entitled to draw reasonable inferences from the contents of the ITO: R. v. Vu, 2013 SCC 60, at para. 16; R. v. Shiers, 2003 NSCA 138, 219 N.S.R. (2d) 196, at para. 13; and Wilson, at para. 52.
The Standard for Warrant Review
[83] Warrant review begins from a premise of presumed validity: Wilson, at para. 63; and R. v. Campbell, 2010 ONCA 588, 261 C.C.C. (3d) 1, at para. 45, aff’d 2011 SCC 32, [2011] 2 S.C.R. 549. It follows from this presumption of validity that the onus of demonstrating invalidity falls on the party who asserts it, in this case, Sadikov.
[84] The scope of warrant review is narrow. The review is not a de novo hearing of the ex parte application. The reviewing judge does not substitute his or her view for that of the issuing judge: Garofoli, at p. 1452; R. v. Ebanks, 2009 ONCA 851, 97 O.R. (3d) 721, at para. 20, leave to appeal to S.C.C. refused, [2010] 1 S.C.R. ix; and R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40. The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search: Morelli, at para. 40. Said in another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could – not would – have issued: Morelli, at para. 40; Araujo, at para. 54; and Garofoli, at p. 1452.
[85] The reviewing court does not undertake its review solely on the basis of the ITO that was before the issuing judge. The reviewing court must exclude erroneous information included in the original ITO, but may also consider, within limits, additional evidence adduced on the voir dire to correct minor errors in the ITO. Amplification evidence corrects good faith errors of the police in preparing the ITO, but does not extend to deliberate attempts to mislead the authorizing judge: Morelli, at para. 41; and Araujo, at para. 58. Evidence relied upon to amplify the record must be evidence available to investigators at the time the ITO was sworn, not information acquired later: Morelli, at para. 43.
[86] Warrant review is an integral part – a first step – in an inquiry into admissibility of evidence proposed for reception. It is not a trial and must not take on the trappings of a trial in which the truth of the allegations contained in the indictment is explored: Ebanks, at para. 21. In establishing the record for the purposes of review, what is to be excised from the ITO is information that is erroneous, not information that is correct, or information that contradicts other information, or information with which the reviewing judge does not agree: Ebanks, at para. 21.
[87] Warrant review requires a contextual analysis. Inaccuracies in the ITO, on their own, are not a sufficient basis on which to ground a finding of bad faith or an intent to mislead, much less to provide a basis on which to set aside the warrant: Araujo, at para. 54. The existence of fraud, non-disclosure, misleading evidence, and new evidence are all relevant but are neither a prerequisite to, nor dispositive of, the review: Garofoli, at p. 1452; and Ebanks, at para. 20.
[88] It is no part of the reviewing judge’s mandate to determine whether she would issue the warrant on the basis of the amplified record. Nor is it the reviewing judge’s role to draw inferences, or to prefer one inference over another. The inquiry begins and ends with an assessment of whether the amplified record contains reliable evidence that might reasonably be believed on the basis of which the warrant could have issued: Morelli, at para. 40.
[89] A final point. An appellate court owes deference to the findings of the reviewing judge in her assessment of the record as amplified on the review and her disposition of the s. 8 application. Absent an error of law, a misapprehension of evidence, or a failure to consider relevant evidence, an appellate court should decline to interfere with the reviewing judge’s decision: Ebanks, at para. 22; and R. v. Grant (1999), 1999 CanLII 3694 (ON CA), 132 C.C.C. (3d) 531 (Ont. C.A.), at para. 18, leave to appeal to S.C.C. refused, 150 C.C.C. (3d) vi.
ANALYSIS
Introduction
[15] I approach this analysis in accordance with Sadikov. In particular I note the following:
a) warrant review begins from a premise of presumed validity;
b) the test can be expressed as whether there is reliable evidence, which might reasonably be believed, on the basis of which the warrant could issue;
c) amplification evidence can correct good faith errors in preparing the ITO; and
d) my role is not to determine whether I would have issued the warrant nor is it to draw inferences or prefer on inference over another. My role is to determine whether the amplified record contains reliable evidence, that might reasonably be believed, on which the warrant could issue.
[16] The additional amplification evidence I will consider is as follows:
a) the fraud charge against the Applicant related to February 14, 2014 was withdrawn;
b) Filian was interviewed by BMO personnel and denied any wrongdoing;
c) on November 9, 2016 Rodikh and Hermez also told Sisco that the Applicant’s house was full of files, credit cards, bank cards, cell phones and fraudulent identification.
Alleged Failures to Disclose – Misleading Statements in the ITO
[17] In my opinion, a number of the complaints of the Applicant were overstated or unjustified.
[18] While not stated in precisely these terms, the Applicant argued that the PRP effectively delegated part of the investigation to BMO employees with unknown backgrounds and qualifications. I do not accept the defence submission that the Affiant was required to inquire into and document the background of the BMO manager or investigator. The fact that a person holds a position with a reputable financial institution allows some inference of credibility and reliability. More importantly, all Ms. Sisco did was relate what was said to her in one conversation and one meeting, and provide the PRP with items provided to her at that meeting. The BMO investigator simply retrieved bank records and video. Her position allows for an inference of credibility and reliability in carrying out these basic tasks.
[19] The ITO referred to a criminal charge against the Applicant related to his attendance at BMO, on February 13, 2014, with an unidentified individual who was attempting to activate a credit card in the fictitious name of Joseph Madison. The fact the charge was withdrawn should have been disclosed although I have no doubt the issuing justice understood that a charge is not a conviction. In any event, whether the Applicant was convicted was really beside the point. There could be any number of reasons why the charge was withdrawn. The significance to the ITO was the association between the Applicant and one of the fraudulent accounts. It is unlikely that BMO and the PRP were wrong as to the pertinent fact that the Applicant was present with someone who tried to activate a credit card for one of the fraudulent accounts.
[20] It was also submitted that the ITO was misleading in suggesting the Applicant was connected to 52 credit applications related to the fraudulent accounts. I think the ITO was fairly clear and that the 52 credit card applications were connected to the 31 fraudulent accounts and that there was no direct evidence the Applicant was connected to each and every one of the credit card applications. If so, that would certainly have been highlighted and detailed.
[21] In any event, it is obviously not that hard for a fraudster to come up with fictitious identities. Fraudsters naturally want to minimize the number of individuals involved and so maximize profit. A reasonable inference could be made that Filian would likely be dealing with one outside person.
[22] The ITO was poorly drafted when it referred to surveillance being conducted between November 17, 2016 and November 23, 2016 when in fact it was conducted only on those two days. The surveillance was, however, offered only on a minor point. It was to establish that the address on the Applicant’s drivers licence was in fact where he lived. It makes no sense that the Affiant would intentionally misrepresent the extent of the surveillance, given that it related only to the relatively tangential, uncontroversial issue of his place of residence.
[23] The Affiant did not disclose the fact Filian denied any wrongdoing. I can see that this denial would matter little, if at all, in light of the fact Filian opened numerous accounts with demonstrably fictitious names.
[24] The ITO listed the names of 35 persons whose identity information might be seized pursuant to the search warrant. This list, however, duplicated six names and omitted two names identified as being holders of a fraudulent account. While sloppy, the key and clear point was that there were 31 fraudulent accounts. The reference to there being 35 names was immaterial.
[25] I am certainly satisfied that the Affiant made the ITO in good faith and with no intent to mislead.
Was There Evidence Capable Of Establishing Reasonable Grounds To Believe The Applicant Committed An Offence?
[26] I will summarize what the issuing justice could take from the ITO.
[27] Rodikh and Hermez provided information that implicated Filian as the BMO employee who established accounts using fictious information. This proved correct. On investigation, BMO located 31 suspicious accounts that he had opened.
[28] The PRP investigated drivers licence and citizenship records recorded in connection with these suspicious accounts, which proved the purported account holders did not exist. This corroboration could logically enhance the credibility of Rodikh and Hermez.
[29] Rodikh and Hermez also claimed to have direct knowledge from the Applicant that he was involved in a credit card – bank account fraud. This was corroborated to a limited extent by the fact they provided BMO with documentation related to two fraudulent accounts. I appreciate that they were also implicated in the fraud. It was submitted that Rodikh and Hermez implicated themselves as playing a role, albeit small, in the fraudulent scheme and they should be treated as a Vetrovec type of witness. I agree.
[30] The issuing justice did not, however, have to take the word of Rodikh or Hermez for much. In any event, their information was confirmed in a number of important respects. Independent investigation revealed the existence of the fraudulent accounts. The Applicant was on camera making deposits to fraudulent accounts. He accompanied an individual who attempted to activate a credit card associated with a fraudulent account.
[31] Depositing money to a number of the fraudulent accounts, which is an essential element of the fraudulent scheme, allows for a strong inference that the Applicant was party to the scheme.
[32] As such, there was evidence before the issuing justice that was capable of establishing reasonable grounds to believe that the Applicant had committed fraud.
Was There Evidence Capable Of Establishing Reasonable Grounds To Believe Evidence Would Be Found In The Applicant’s Home And Vehicle?
[33] There is considerable force to Mr. Travers argument that gun, and particularly drug, cases may be of limited assistance. Drugs in particular are constantly being sold or moved. What was in one place today may be gone tomorrow.
[34] This fraud was designed to play out over time. For example, Ms. Sisco indicated that the Toma Robert account was opened by Filian on March 13, 2013, while the account was only closed on June 23, 2016 due to the attempted deposit of two fraudulent cheques. The credit card applications were made from 2013 to 2016. The fraudster, therefore, had to maintain ready access to names, biographical details, account numbers and passwords for all of the fraudulent accounts, and the resultant 52 credit card applications, over a number of years.
[35] The issuing justice could rely upon common sense and experience that criminals are seldom smart or careful enough to conduct themselves as if they are under constant suspicion and surveillance. I agree with Mr. Travers that the issuing justice could conclude that there was a greater likelihood that documents or data would be in the Applicant’s home than that he may have secreted all this information at some remote site.
[36] In addition, an important component of the fraud was that credit cards would be obtained and used to acquire goods. The issuing justice could certainly find that there was a real likelihood that goods, and evidence related to the acquisition of goods, would be found in the Applicant’s residence.
[37] The amplified record includes that Rodikh and Hermez advised Sisco that the Applicant’s house was full of files, credit cards, bank cards, cell phones and fraudulent identification. While Rodikh and Hermez were implicated to a minor extent in the fraud, they had provided reliable information which included identifying Filian as opening fraudulent accounts for over three years.
[38] As such, the issuing justice could conclude that there were reasonable grounds to believe that evidence of the fraud would be found in the Applicant’s house.
[39] As to the vehicle, the ITO indicates that the Applicant had used the vehicle to attend various banks between November 17 – 23, 2016 which is close in time to the ITO dated November 28, 2016. As a matter of common sense and experience it is not uncommon that personal documents are left in a vehicle. As such, the issuing justice could conclude that there were reasonable grounds to believe that evidence of the fraud could be found in the vehicle.
CONCLUSION
[40] The application to exclude evidence is, therefore, dismissed.
SECTION 24(2)
[41] For the sake of completeness, I will indicate my analysis assuming that I am incorrect, and that the ITO failed to disclose reasonable grounds to believe that an offence had been committed. On that assumption I agree with the Applicant that the Grant factors would result in the exclusion of the evidence. There is the highest expectation of privacy in a dwelling house. Admitting the evidence despite the absence of reasonable grounds may send the message that the justice system condones serious misconduct. While society has an interest in an adjudication of the case or its merits, the exclusion of the evidence seized would only impair and not prevent the prosecution. I do also take account of the fact reliable physical evidence was seized. Further, this is not a case involving serious personal injury to the victim in which society would have a heightened interest in an adjudication or the merits.
Sproat J.
Released: July 9, 2021
COURT FILE NO.: CR-18-1037 DATE: 2021-07-09
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Ashor Mamado Applicant
REASONS FOR JUDGMENT
Sproat J.
Released: July 9, 2021