COURT FILE NO.: CR-20-50000032-0000

CR-20-50000034-0000

CR-20-50000045-0000

DATE: 20210126

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ACESIA ALI, CHADWIN ANDREWS, AKIL JONES, KIMANI PHILLIPS,

JAMAR QUINTYNE, KIA SAMPSON, JOHNATHAN SINCLAIR

Dawn MacDonald, Phillip Tsui and Susan Kim, for the Crown

Craig Bottomley, Andrea VanderHeyden and Craig Zeeh, for the Applicants

HEARD: December 2 and 4, 2020

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON APPLICATION TO EXCLUDE WIRETAP EVIDENCE

[1] In 2018 the Ontario Provincial Police commenced an investigation into the manufacturing and trafficking of converted firearms. The police called the investigation Project Renner. The investigation gathered evidence that that a group of individuals purchased conversion kits in order to make working firearms. It is possible to manufacture working firearms from BB guns and pellet guns. It is also possible to use conversion kits to change the calibre of a firearm. The police alleged that this is what individual members of the group did, making a handsome profit.

[2] The police obtained wiretap authorizations from Justice O’Connell on September 18, 2018, and October 23, 2018. At the conclusion of the project, the police arrested and laid charges against several alleged members of the group. Charges against some individuals have been dealt with, mostly by way of guilty pleas.

[3] Chadwin Andrews, Jonathan Sinclair and Jamar Quinten challenge the admissibility of the interceptions obtained under those authorizations. Mr. Andrews was named in the authorizations. His communications with Mr. Sinclair and Mr. Quinten were intercepted. The communications of Acesia Ali, Akil Jones, Kimai Phillips, and Kia Sampson were not intercepted. They did not, therefore, participate in the application.

[4] Detective Constable Helmke swore the affidavits in support of the wiretap applications. On November 30 and December 1, 2020, I initially heard an application to cross-examine Detective Constable Helmke on his affidavits. I granted that application, in part. I issued a summary ruling on December 2, 2020 and provided it to counsel. That ruling is issued as Appendix “A” to these reasons. On the main application, the defence argued that the police failed to demonstrate that there was a criminal organization; failed to demonstrate investigative necessity; and engaged in a pattern of misrepresentation that subverted the pre-authorization process. As a result, the defence argued, I should set aside the authorizations and exclude the interceptions from evidence.

[5] On January 15, 2021 I dismissed the application with reasons to follow. I stated my main findings:

1. Chadwin Andrews was not properly named as a known person in the first wiretap affidavit. He was, however, properly named in the second affidavit.

2. The affiant did not objectively have reasonable grounds to believe that a criminal organization existed in either the first or second affidavit. Accordingly, he was required to make out investigative necessity. Both affidavits did demonstrate investigative necessity.

3. There were omissions and misrepresentations in the affidavits. Some of these were significant.

4. When the misrepresentations and omissions are excised from the affidavit, there is still sufficient material upon which the authorizations could have issued.

5. The existence of the omissions and misrepresentations requires a determination of whether or not the authorization should be set aside as being subversive of the prior authorization process. When I examine those omissions and misrepresentations in detail, I find that they do not rise to the level that the setting aside of the authorizations is required.

6. The Application is dismissed.

[6] What follows are my reasons.

BACKGROUND

(a) The Police Learn Of Suspicious Firearms Sales

[7] On April 17, 2018 employees of a store called Firearms Outlet Canada contacted the Durham Regional Police. The employees called to report suspicious purchases of firearms components. Police officers attended the store and spoke to an employee. The police reviewed purchase records. The records showed that Bruce McKinnon had purchased fake suppressors, .22 magazines, and conversion kits manufactured by German Sports Gun (GSG) between April 22, 2017 and February 18, 2017. A Durham police officer conducting database checks learned that Halton Regional Police had recovered a firearm during a search warrant. The firearm had McKinnon’s DNA on it.

(b) Handgun Conversion

[8] A semi-automatic handgun consists of two large parts: a lower receiver and an upper receiver. The lower receiver includes the handle (into which the ammunition magazine is inserted) and the trigger assembly. The upper receiver slides onto the lower receiver (it is also referred to as the slide) and includes the barrel and the firing assembly. A handgun can be converted from one caliber to another. The caliber of the handgun refers to the size of the round.

[9] A legally purchased handgun can be lawfully converted from one caliber to another. A person can purchase a kit to convert a handgun from one caliber to another. GSG manufactures conversion kits. According to the first affidavit, usually target shooters convert 9mm handguns to less powerful .22 caliber. The .22 round is cheaper and there is less recoil, thus making target shooting easier. A kit can also be used to convert a BB gun or a pellet gun into a working firearm. A handgun also be fitted with a suppressor, or silencer. Silencers, in contrast, are prohibited weapons: Criminal Code, s. 84.

[10] DC Wolfe, a police firearms expert, built a working firearm using a GSG conversion kit. The process was videotaped. He estimated the cost of building the working firearm at $726.30, including tax. According to DC Wolfe, at the time of the investigation an illegal handgun in Southern Ontario could be purchased for $2300 to $5000.

(c) The Police Commence An Investigation

[11] The police began investigating McKinnon. A Durham officer learned that GSG conversion kits are distributed by a Vancouver company called Blue Line Solutions. The officer spoke to an employee of Blue Line Solutions and learned that Blue Line stamps GSG conversion kits with a Blue Line Solutions serial number. Blue Line Solutions began to keep track of purchases when police seized firearms with Blue Line Solutions serial numbers. McKinnon had purchased conversion kits and suppressors online. Police learned that McKinnon was also a customer of a retail store in London, Ontario. That store sold GSG conversion kits.

[12] Commencing in June 2018 the police began surveillance of McKinnon. They also obtained tracking warrants for his mobile phone and vehicle; and a transmission data recorder for his mobile phone. McKinnon went to several retail locations and then to 8329 Esquesing Line in Milton, Ontario. The police identified Jon Rasmussen as an associate of McKinnon. He attended retail stores with McKinnon where one or the other purchased conversion kits. The police observed McKinnon at the Esquesing property multiple times during the course of the investigation. They formed the belief that the Esquesing property was a location where McKinnon manufactured illegal firearms.

[13] On July 19, 2018 police officers observed Rasmussen and McKinnon together. They attended two retail locations, including a gun shop and a surplus shop. The police observed them purchasing items in cash, including what they believed to be airsoft pistols from the surplus shop. Rasmussen purchased something from the gun shop. Later that evening McKinnon went to Allen’s residence in Burlington. Police observed McKinnon again attend Allen’s residence on July 23, 2018. Throughout July and August 2018 the police continued to conduct surveillance on Rasmussen and McKinnon. The police observed them attending sporting stores and purchasing items, often in cash. On August 10, 2018 the police installed a covert camera to observe the outside of the Esquesing property. The police observed McKinnon entering and exiting the building many times. The police also observed McKinnon meeting people there, including Rasmussen. Transmission data from his cell phones indicated that he (or his phones at least) was in contact with Rasmussen’s cell phones.

[14] On July 17, 2018 police officers observed McKinnon at the Esquesing property in the evening; they also observed black Mercedes licence CELT996. That vehicle was registered to Chadwin Andrews. The vehicle then left. The police observed the driver of the Mercedes meet with a Mazda CX9 licence TSKB at a plaza for about 10 minutes.

[15] On July 31, 2018 the police obtained a tracking warrant for Rasmussen’s vehicle. On August 17, 2018 the police obtained a tracking warrant for Allen’s vehicle; a transmission data recorder warrant for the mobile phones of Allen, Allen’s wife, and Rasmussen; and a renewal of the transmission data recorder warrant for McKinnon’s phone.

[16] On August 22, the police observed McKinnon enter Allen’s home. The police also observed Chan enter Allen’s home. Chan simply walked in. McKinnon was there for about 20 minutes. On August 29, McKinnon again attended Allen’s home. He was carrying two bags and simply entered the location. On September 6, 2018 police observed McKinnon was observed at a gun store in Petawawa, Ontario – a five-hour drive from his home. Later the same day, he and Rasmussen were both observed at the Esquesing location.

[17] Chan was in a motor vehicle accident while driving a motorcycle registered to Allen. Chan had a possession and acquisition licence for firearms but he did not have a firearm registered to him. Only a person with such a licence can lawfully purchase ammunition.

[18] The police conducted an analysis of calls between principal known persons for the period between August 21 and September 10, 2018. There were 109 calls or texts between McKinnon’s phones and Rasmussen’s phone; 60 calls or texts between McKinnon’s phones and Allen’s phones; 16 calls or texts between McKinnon’s phones and Chan’s phone; and 4 calls or texts between Allen’s phone and Chan’s phone.

[19] The police also conducted an analysis of tracking warrant data of McKinnon’s and Rasmussen’s vehicles. McKinnon and Rasmussen each travelled hundreds of kilometers to stores that sold conversion kits. McKinnon attended Allen’s home either the same day that he visited the Esquesing location (66% frequency) or within a day (100%) frequency. He also attended either the Esquesing location or Allen’s home every time he completed a “gun part” trip.

(d) DC Helmke Swears The First Wiretap Affidavit

[20] On September 18, 2018 DC Helmke swore the first affidavit. In it he stated that McKinnon, Rasmussen, Chan, and Allen made up a criminal organization. The object of the organization was firearms trafficking. He named McKinnon, Rasmussen, Allen, and Chan as principal known persons. He named Andrews as a known person whose communications may assist in the investigation. Although DC Helmke believed he had reasonable grounds to believe that there was a criminal organization, he still wrote a section on investigative necessity.

(e) DC Helmke Swears The Second Wiretap Affidavit

[21] On October 23, 2018 DC Helmke swore the second affidavit, seeking a second wiretap authorization. The second affidavit summarized some of the communications intercepted pursuant to the first wiretap authorization. It also incorporated the results of other investigative techniques.

[22] The police obtained a general warrant and placed a covert camera inside the Esquesing Line property. They believe that it had been a workshop, but they became aware that the lease was being terminated. They observed Rasmussen and McKinnon packing up boxes inside the property. The police officers who executed the covert entry observed parts for weapons, conversion kits, weapons, and tools for machining things.

[23] Interceptions from the first authorization and surveillance of Rasmussen and McKinnon strongly indicated that they continued to source GSG conversion kits and continued to manufacture illegal firearms. An undercover police officer met Rasmussen in October 2018. The officer arranged a purchase of a firearm. In late October Rasmussen indicated to the officer that he had the “thing” but that he would have to arrange the sale at a later time. At least one handgun bearing a serial number that could be traced to McKinnon was seized by the Toronto Police.

[24] DC Helmke maintained that Rasmussen, McKinnon, Allen, and Chan continued to make up a criminal organization. He also identified Chadwin Andrews as a purchaser of firearms from either McKinnon or Rasmussen. The police learned that Chan worked at the same business as Allen. The police did not intercept any pertinent calls between Allen and any of the other alleged members of the criminal organization. Police surveillance observed one meeting between Chan and McKinnon while McKinnon was in his car and Chan stood beside the car. Chan appeared to hand a small object to McKinnon. The police intercepted a conversation between McKinnon and Chan prior to the meeting.

ISSUES

[25] There are five issues to be determined on this application:

(a) Was Chadwin Andrews properly named in the two affidavits?

(b) Did the police have reasonable and probable grounds to believe that there was a criminal organization?

(c) Was investigative necessity met?

(d) Did DC Helmke fail to make full, fair, and frank disclosure?

(e) Should the wiretap evidence be excluded?

ANALYSIS

(a) Was Chadwin Andrews properly named in the two affidavits?

[26] Crown counsel, Ms. MacDonald, fairly conceded that Andrews was not properly named in the first authorization. She argued, however, that he was properly named in the second. The threshold for naming someone in an authorization is low. There was more than enough evidence in the second affidavit to back that up.

[27] Mr. Bottomley, for the group of accused, argued that Andrews was not properly named in the second, either. DC Helmke misrepresented the one significant interception between Andrews and McKinnon. He also omitted an important material fact regarding the surveillance of a meeting between McKinnon and a person DC Helmke identified as Andrews. Mr. Bottomley argued that there was no other significant evidence tying Andrews to gun trafficking.

[28] The Crown’s concession regarding the first affidavit was proper and I agree with it. I find, however, that there were sufficient grounds to name Andrews in the second affidavit.

[29] Section 185(1)(e) requires that a wiretap affidavit set out the names, addresses, and occupations (if known) of persons where there are reasonable grounds to believe that the interception of their communications may assist in the investigation. The requirement for describing a person as a “known” is a modest one: R. v. Mahal, 2012 ONCA 673 at paras. 70-71. The police must have reasonable grounds to believe that an offence has been or is being committed; that the person is known to the police; and that there are reasonable grounds to believe that intercepting that person’s communications may assist in the investigation. In other words, there need not be any grounds to believe that the person is a participant in the crime or even knows about the crime. For example, an information technologist working for a group conducting a telemarketing scam might not know what his clients are up to, but his or her communications might reveal the extent of the network. Likewise, ten-year-old Michael Corleone may not have known that his father was a Mafia don (or even what a don was), but if there was a basis to believe that he may take down messages for his father, then he would have been named as a known person.

[30] When determining whether the preconditions for the authorization were met, I must not substitute my view for that of the authorizing judge. Rather, it is my duty to determine whether the authorizing judge could have granted the order: R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421 at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 54. Even where there has been fraud or misleading disclosure, my task is to excise the offending material and determine whether there remains any reliable evidence upon which the authorizing judge could have granted the order.

[31] In the first affidavit, DC Helmke swore that Andrews met McKinnon at the Esquesing property on July 17, 2018. A vehicle registered to Andrews drove onto the property. The surveillance report stated:

2032 Black 4 door tinted Mercedes #CELT 966 observed on property parked near #4K1L6 [a vehicle registered to McKinnon].

2035 #CELT 996 leaves heading s/b on Esquesing Line with an unknown driver – tints are very dark.

2037 #CELT 996 attends the Milton Crossroads Mall located at James Snow Parkway and Steeles, the vehicle meets with a black Mazda CX-9…

[32] In the first affidavit, DC Helmke swore:

Chadwin Stefano Andrews has met Bruce McKinnon at the Esquesing property…

Chadwin Andrews is the registered owner of the vehicle that came into the investigation on the 17^th of July 2018 meeting McKinnon at 8329 Esquesing Line, Milton Ontario and drove a short distance and met with an unknown person. I believe that Chadwin Andrews purchased a firearm from Bruce McKinnon.

Andrews has criminal convictions for robbery and use of an imitation firearm during the commission of an indictable offence.

[33] The first paragraph was a misrepresentation. There was evidence that a car associated with Andrews was seen on the Esquesing property. There was no evidence that anyone had purchased a firearm or even that Andrews had met with McKinnon. The surveillance officers did not see a transaction of any kind, or the driver of the Mercedes. No doubt the presence of the Mercedes was suspicious. No doubt, given Andrews’ criminal record and the evidence that Esquesing property may have been a shop for making firearms, there was a basis investigate Andrews. It was not, however, a basis upon which he could be named in a wiretap. In cross-examination, DC Helmke agreed that he made a mistake in naming Andrews, although he continued to believe that Andrews did attend the property at that time. I excise the paragraph naming Andrews from the affidavit.

[34] The Crown argues, however, that the improper naming of Andrews was moot. I agree. The only relevant interceptions of Andrews resulting from the first authorization were conversations with McKinnon – and there were ample grounds to name him.

[35] In the first affidavit, DC Helmke named Andrews as a known person. In the second, he named Andrews as a principal known person. There is no legal difference between a known person and a principal known person. The distinction is used for convenience, to identify those persons who are likely principals to the crime, and those who may not be involved (or may be involved to a lesser extent) but the interception of whose communications may still assist the investigation: R. v. Riley, 2009 CanLII 7177 (ON SC), [2009] O.J. No. 738 (Sup.Ct.) at para. 221.

[36] In the second affidavit, DC Helmke stated that he believed that Andrews was more involved in the criminal organization than originally thought. DC Helmke based that belief on a suspicious transaction and an intercept. On September 27, 2018, surveillance officers observed McKinnon hand a person a small suitcase through the window of his vehicle. The person then put it into the trunk of a Mercedes with Ontario licence plate CELT 996 – the Mercedes registered to Andrews. The day before, McKinnon had been intercepted speaking to “Capo” about that “thing”. He had also received a text from a third person about meeting “Capo” about the thing. DC Helmke believed that “Capo” was Andrews. In fact, in the intercepted call between McKinnon and Andrews the term “flying thing” was actually used. DC Helmke testified that he simply missed the term “flying”. I accept that it was an honest omission on his part. Mr. Bottomley argued that the “flying thing” in the suitcase was considerably larger than a handgun. As well, he noted that a drone in a suitcase was later seized by the police – although he conceded that the seizure of the drone could not be used to undermine the grounds at the time the affidavit was sworn. The police intercepted a call on September 27 between McKinnon and someone who identified himself as “Clutch”. McKinnon mentioned a drone in that call.

[37] DC Helmke’s interpretation of the call was not unreasonable, even if one includes the words “flying”. McKinnon and other intercepted parties used coded language throughout. The police later observed McKinnon handing over an object to a person that DC Helmke believed was Andrews.

[38] In describing the physical surveillance that day, DC Helmke asserted in the second affidavit that it was a meeting between McKinnon and Andrews. The officers who observed the meeting had a different conclusion, however. The physical surveillance report described the person who met McKinnon as an unknown male. The report indicated the following:

McKinnon removed a small grey suitcase from the back seat of the truck and placed it in his lap momentarily.

McKinnon handed the suitcase through the open window to the unknown male…

Unknown male then placed it in the trunk of a black Mercedes with Ontario licence plate CELT996…

The unknown make drove away in the Mercedes. Unknown male did not appear to be the registered owner of the Mercedes.

[39] In cross-examination, DC Helmke testified that he believed that the surveillance team was wrong about the identity of the person driving the Mercedes. He believed, based on the intercepts and his general knowledge of the case, that the surveillance team mis-identified the driver of the Mercedes. He agreed, however, that he did not tell the authorizing judge that the surveillance team indicated that the driver was someone other than Andrews.

[40] DC Helmke’s description of the description of the transaction was accurate. I agree with Mr. Bottomley, however, that the failure to indicate to the authorizing judge that the surveillance team identified someone other than Andrews as a material omission. The transaction between McKinnon and the driver of the Mercedes that day was clearly suspicious. There was a basis for DC Helmke to believe that the person driving the Mercedes was Andrews and that the surveillance team was wrong. I accept that DC Helmke honestly believed that to be the case. I also accept that passing an object through a car window to another individual – even if it was not a firearm – was consistent with McKinnon’s way of transferring items believed to be firearms. DC Helmke’s deduction that it was a firearms trafficking was reasonable in the circumstances.

[41] That said, DC Helmke did rely solely on this alleged transaction as a reason to name Andrews in the second affidavit. It was also important to DC Helmke’s assertion that Andrews was more involved in the McKinnon organization than he originally thought. What DC Helmke should have done was set out the surveillance team’s observations and his reasons for disagreeing. The authorizing judge may have accepted that DC Helmke was correct. Or he may not have. Either way, it was important for the authorizing judge to have the contrary fact so that he could make his own, independent decision whether the observations were sufficient to name Andrews. I excise this portion of the affidavit naming the person as Andrews as materially misleading.

[42] In contrast, the interception of October 2, 2018 does provide a basis to name Andrews. On that day, McKinnon was intercepted speaking to Andrews. He told Andrews that he had a “combo piece” for 25. He explained that it had screws on it that made it quieter. A police weapons expert expressed the view that McKinnon was using coded language for a suppressor, and that the pricing was consistent for handguns on the street.

[43] The conversation on October 2, 2018 meets the low threshold for naming someone in a wiretap. It appears to be a conversation directed to purchasing a firearm with a silencer. I say that even after excising the identification of Andrews at the Esquesing property from the first affidavit and the identification of Andrews from the transaction with McKinnon from the second. That would have left the authorizing judge with a highly incriminating interception of Andrews. It would also left the authorizing judge with observations of a vehicle registered to Andrews at the Esquesing property and a potential firearms trafficking with McKinnon. I find that is still a basis upon which the authorizing judge could find that Andrews was properly named in the second affidavit as a known person.

(b) Did the police have reasonable and probable grounds to believe that there was a criminal organization?

[44] Crown counsel argued that the two affidavits disclosed reasonable grounds to believe that there was a criminal organization consisting McKinnon, Rasmussen, Allen, and Chan. The organization was engaged in the manufacture and trafficking of illegal firearms. The group revolved around McKinnon. As DC Helmke described him, he was “the spoke in the wheel”. Others had different roles.

[45] With respect, I cannot agree. Upon review, I find that the two affidavits did not disclose a basis upon which the authorizing judge could have found that a criminal organization existed. The “McKinnon Group” did not have sufficient structure, cohesion, and membership. There were insufficient grounds to name Allen and Chan as members of a criminal organization.

[46] Section 467.1(1) of the Criminal Code states:

criminal organization means a group, however organized, that

(a) is composed of three or more persons in or outside Canada; and

(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.

It does not include a group of persons that forms randomly for the immediate commission of a single offence. 

[47] The Criminal Code criminalizes four aspects of belonging to a criminal organization: participation in the activities of a criminal organization (s. 467.11); recruiting, soliciting, coercing, encouraging, or inviting a person to join a criminal organization (s. 467.111); committing an offence for the benefit of, at the direction of, or in association with, a criminal organization (s. 467.12); or instructing a person to commit an offence for the benefit of, at the direction of, or in association with, a criminal organization.

[48] Section 467.11 of the Criminal Code is the participation section. It states:

467.11 (1) Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this or any other Act of Parliament, knowingly, by act or omission, participates in or contributes to any activity of the criminal organization is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that

(a) the criminal organization actually facilitated or committed an indictable offence;

(b) the participation or contribution of the accused actually enhanced the ability of the criminal organization to facilitate or commit an indictable offence;

(c) the accused knew the specific nature of any indictable offence that may have been facilitated or committed by the criminal organization; or

(d) the accused knew the identity of any of the persons who constitute the criminal organization.

(3) In determining whether an accused participates in or contributes to any activity of a criminal organization, the Court may consider, among other factors, whether the accused

(a) uses a name, word, symbol or other representation that identifies, or is associated with, the criminal organization;

(b) frequently associates with any of the persons who constitute the criminal organization;

(c) receives any benefit from the criminal organization; or

(d) repeatedly engages in activities at the instruction of any of the persons who constitute the criminal organization.

[49] A criminal organization must have some form of structure and a degree of continuity. It must also have a degree of organization: R. v. Venneri, 2012 SCC 33 at paras. 29-31. Courts must apply the definition of “criminal organization” flexibly, as the British Columbia Court of Appeal observed in R. v. Terezakis, 2007 BCCA 384 at para. 34 and quoted with approval in Venneri:

The underlying reality is that criminal organizations have no incentive to conform to any formal structure recognized in law, in part because the law will not assist in enforcing illegal obligations or transactions. That requires a flexible definition that is capable of capturing criminal organizations in all their protean forms.

[50] A criminal organization need not be as sophisticated and hierarchical as the Corleone family or the Sons of Anarchy; but it must be more than three people coming together to commit a discrete offence. Such ad hoc arrangements can be captured through ordinary criminal law relating to conspiracy and party liability: Venneri at paras. 35, 41. Rather, as the Supreme Court noted at para. 36, it is the collective effort, specialization, and structure that is the hallmark of a criminal organization:

Working collectively rather than alone carries with it advantages to criminals who form or join organized groups of like-minded felons. Organized criminal entities thrive and expand their reach by developing specializations and dividing labour accordingly; fostering trust and loyalty within the organization; sharing customers, financial resources, and insider knowledge; and, in some circumstances, developing a reputation for violence. A group that operates with even a minimal degree of organization over a period of time is bound to capitalize on these advantages and acquire a level of sophistication and expertise that poses an enhanced threat to the surrounding community.

[51] In R. v. Beauchamp, 2015 ONCA 260, the Court examined the criminal organization provisions in light of Venneri. The Court interpreted Venneri at paras. 152-153:

In R. v. Venneri at paras. 27-41, the Supreme Court of Canada sketched out the contours of what "a group, however organized" is meant to portray. Whether a targeted group is a "criminal organization" is to be determined on a flexible basis, not on the basis of pre-conceived notions about what organized crime may look like. At the same time, however, care must also be taken not to overextend the reach of the provisions and turn every conspiracy of three or more persons involving the commission of serious crimes for material benefit into a criminal organization.

This balance between flexibility and overreaching is important. The Venneri decision strikes it in three broad ways:

a) by highlighting the need for "some form of structure and degree of continuity" and coordination, as a means of distinguishing between a criminal organization and other forms of illegal group activity, such as conspiracies, that are already adequately dealt with in the Criminal Code: at paras. 27-31 and 35;

b) by making it clear that the criminal organization provisions are not intended to capture only certain "stereotypical [models] of organized crime" (biker gangs and drug cartels, for example): at para. 41; and

c) by resisting the temptation to adopt a "checklist" of common characteristics or attributes that must be satisfied in every case: at paras. 38-40.

[52] In the first affidavit, DC Helmke identified McKinnon, Rasmussen, Allen, and Chan as being members of “The McKinnon Group”. He set out his belief that McKinnon purchased legal components along with Rasmussen and that he manufactured the components into illegal handguns at the Esquesing property. Rasmussen’s role was to purchase legal components along with McKinnon. He was also, according to DC Helmke, involved in the sale of illegal handguns. DC Helmke identified Allen as a member of the group because McKinnon had been seen attending Allen’s residence several times. There was a strong correlation between McKinnon purchasing parts and attending Allen’s residence. Chan was a member of the group because he held a valid firearms licence and could purchase ammunition legally. He was also observed walking into Allen’s house. Analysis of phone records showed that McKinnon was the “spoke in the wheel”. DC Helmke set out specific reasons why believed the group showed cohesion, endurance, and structure.

[53] In the second affidavit, DC Helmke set out essentially the same grounds for finding that McKinnon, Rasmussen, Chan, and Allen were part of the organization. Communications were intercepted pursuant to the first authorization. Those communications showed a great level of interaction between Rasmussen and McKinnon. There was a lower level of interaction between McKinnon and Allen as set out in the phone contact analysis. There were no significant interceptions of Allen’s communications. There was one meeting observed between Chan and McKinnon. There were no significant interceptions between Chan and McKinnon, other than a conversation leading up to that meeting. The police learned that Chan and Allen worked together at a place called Sturgess Cycle. DC Helmke set out his reasons for believing that the group showed cohesion, endurance, and structure.

[54] Between July 17, 2018 - when police observed McKinnon visiting Allen’s workplace at Sturgess Cycle in Hamilton – and the granting of the tracking warrants on August 17, 2018, McKinnon visited Allen’s workplace or residence on seven occasions. On August 17, 2018 tracking warrants were issued for Allen’s vehicles and a transmission data recorder was issued for Allen’s cell phone as well as his wife’s cell phone. The police first observed Chan on August 22, 2018 at Allen’s residence, where he simply walked in. The police also observed McKinnon visit Allen’s residence that day. Tracking warrant data indicated that he visited the Esquesing property prior to visiting Allen’s residence.

[55] As I noted earlier, tracking warrants and transmission data recorders were obtained for several of the targets. An analysis of calls between principal known persons for the period between August 21 and September 10, 2018 showed 109 calls or texts between McKinnon’s phones and Rasmussen’s phone; 60 calls or texts between McKinnon’s phones and Allen’s phones; 16 calls or texts between McKinnon’s phones and Chan’s phone; and 4 calls or texts between Allen’s phone and Chan’s phone. The tracking data showed that McKinnon and Rasmussen each travelled hundreds of kilometers to stores that sold conversion kits. McKinnon attended Allen’s home either the same day that he visited the Esquesing location (66% frequency) or within a day (100%) frequency. He also attended either the Esquesing location or Allen’s home every time he completed a “gun part” trip.

[56] It is unclear from the first affidavit the nature of the 60 calls or texts between McKinnon’s phones and Allen’s phones. That seems like a lot, but were there 60 short text or 60 phone calls? It is difficult to draw a conclusion. As well, DC Helmke did not explain why the correlation between a “gun trip” and a visit to Allen’s home was significant. It was not clear if it was mere coincidence.

[57] In the second affidavit, DC Helmke noted that McKinnon visited Allen six times between September 20 and October 10, 2018. There had also been frequent contact between their mobile phones during that time-frame. There was no contact between Allen and other members of the “McKinnon Group”. DC Helmke attributed that lack of contact to the possibility that there were no GSG conversion kits available at that time. On October 14, 2018 police observed Allen assisting McKinnon in packing up the Esquesing workshop. An audio probe intercepted Allen telling McKinnon that he had gunpowder stored at his house. DC Helmke found that significant as Allen was prohibited from possessing weapons or firearms.

[58] DC Helmke indicated in the second affidavit that Chan worked at Sturgess Cycle in Hamilton. That is where Allen also worked. DC Helmke did state that there was little contact between Chan and McKinnon during the currency of the first authorization.

[59] When I apply the factors discussed in Venneri, Terezakis, and Beauchamp I simply do not see structure, cohesiveness – and most importantly, membership – of the McKinnon Group. There was no question that there was sufficient evidence to show the involvement of McKinnon and Rasmussen, but there is virtually no evidence that the structure included Chan and Allen. At best, McKinnon and Allen were in contact. Although Mr. Bottomley stressed that the police never observed Chan doing anything, that is not quite right. The observed Chan handing a package to McKinnon. Chan’s mobile phone did have communications with McKinnon’s mobile phone, but only one interception of note – when he and McKinnon arranged to meet. That was enough to name him in the two affidavits, but when DC Helmke deposed in the first affidavit that he believed Allen and Chan were “part of the distribution side” and that Chan purchased ammunition there was little evidence to support that.

[60] Allen was observed assisting McKinnon packing up the Esquesing workshop during the currency of the first authorization. That, of course, was very suspicious, and was undoubtedly a basis to name him, but it my view it did not give rise to reasonable grounds to believe that he was a member of a criminal organization – the evidence only went as far as to show that he was merely an associate of McKinnon.

[61] In Venneri, the Supreme Court distinguished between a member of a criminal organization and an associate. Dauphin ran a drug trafficking organization in Montreal. Venneri purchased cocaine from Dauphin, and later sold cocaine to Dauphin. Venneri was charged with being a member of Dauphin’s criminal organization. The Supreme Court at paras. 43-46 agreed with the Quebec Court of Appeal that the evidence did not show that Venneri took direction, or had a stake in Dauphin’s organization:

Venneri was an autonomous, albeit regular, customer of Dauphin in the summer and fall of 2005. But Dauphin was not his sole supplier. Venneri operated with a high degree of independence and showed little or no apparent loyalty to Dauphin and his associates. They did not share mutual clients. Nor did Venneri have any real stake or financial interest in Dauphin's organization. These strike me as the most relevant factors in the circumstances of this case.

Moreover, Russell, Bilodeau and Marchand all took direction from Dauphin and performed clearly defined functions. Venneri, on the contrary, operated at arm's length from the organization. Nothing in the record indicates that Dauphin exercised any measure of control over Venneri…

[62] The Court described the dealings between Venneri and Dauphin as “autonomous transactions between like-minded criminals, each guided by their own self-interest.” Venneri was an independent opportunist and played no role within the organization. He was an associate, not a member, and therefore could not be found guilty of a criminal organization offence.

[63] The distinction between an associate and a member applies here. If the McKinnon Group was a criminal organization – a doubtful proposition – then Allen and Chan, were merely associates. For Allen or Chan to have been a member of the organization for the purposes of a wiretap authorization there must have been some basis to believe that each had a financial or other stake in the organization; or that each was under some measure of control by McKinnon; or that each had some loyalty to the organization. There was no evidence of any of that. There was also no evidence that either Chan or Allen had committed any sort of crime, although that is obviously not determinative. The evidence shows that Allen and McKinnon had an association of some kind and that Allen assisted McKinnon with packing up the Esquesing workshop. The evidence also shows that Chan and McKinnon might have engaged in one transaction, and that there was an association between Chan and Allen.

[64] The threshold for merely naming a person in a wiretap affidavit is low. The threshold for issuing a criminal organization wiretap is higher – there must be reasonable grounds to believe that a criminal organization exists. The threshold for naming a person as a member of a criminal organization in a wiretap is also higher than for merely naming a known – there must be reasonable grounds to believe that the person – whether identified or unidentified – is a member of the organization. The threshold was not met in the two affidavits for Chan or Allen.

(c) Was investigative necessity met?

[65] A judge need not be satisfied that investigative necessity is made out where there are reasonable and probable grounds to believe that the offence involves a criminal organization or terrorism: s. 186(1) (1.1); R. v. Lucas, 2014 ONCA 561 at para. 100. The result here, however, is that DC Helmke was required to demonstrate investigative necessity. DC Helmke did write to investigative necessity.

[66] Mr. Bottomley, for the defence, argues that there were multiple problems with investigative necessity. He argues that there were several other investigative techniques that were tried and succeeded. Tracking warrants revealed where Rasmussen and McKinnon were purchasing GSG kits. A covert entry was made to the Esquesing property. The police were able to make useful observations. The police successfully introduced an undercover officer to Rasmussen.

[67] As usual, Mr. Bottomley makes a thorough and compelling argument, but I am unable to agree.

[68] Section 186(1) of the Criminal Code states:

186 (1) An authorization under this section may be given if the judge to whom the application is made is satisfied

(a) that it would be in the best interests of the administration of justice to do so; and

(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

[69] In R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, the Court analyzed the investigative necessity requirement in s. 186(1)(b). Wiretapping is not a tool of last resort. Rather, there must be, practically speaking, no other reasonable alternative method of investigation, in the circumstances of the particular case: Araujo at para. 29. Investigative necessity does not require that the police to pursue all other investigative techniques; rather, it requires that other techniques have little chance of success or the matter is so urgent that other techniques would neuter the investigation: Araujo at para. 34. At the same time, wiretapping is not to be employed simply because it is the most efficient form of investigation: Araujo at para. 39.

[70] The investigative necessity requirement is to be interpreted in a “practical common sense way with due regard for the nature and purpose of the particular investigation that police propose to undertake.”: Mahal, at para. 41. As Dambrot J. stated in R. v. Riley, 2009 CanLII 7177 (ON SC), [2009] O.J. No. 738, 2009 CarswellOnt 912 (Sup.Ct.) at para. 146, the police “do not have to demonstrate that every investigative procedure that might be conjured up by a creative criminal defence lawyer will not succeed.”

[71] In my view, investigative necessity was met. In both affidavits, DC Helmke pointed to several investigative techniques that had been tried and failed, were unlikely to succeed, or did not apply. In the first affidavit he noted the limits on the investigative techniques:

• The sale of conversion kits was unregulated. There was no obligation to keep a record of sales by retailers. Blue Line, the distributor, eventually began to serialize GSG conversion kits. Although the defence argued that this was a misrepresentation by DC Helmke, as I outline later in these reasons, I do not accept this argument.

• The police had no useful confidential informants or potential agents.

• The police had successfully employed a production order to obtain information from one firearms store. DC Helmke expected to continue to use production orders successfully. He noted, however, that it is not illegal to buy and sell conversion kits. There was a limit to the information the police could obtain.

• Transmission data records had been useful. DC Helmke expected that they would continue to be useful. TDRs had limits, however. The data were capable of showing associations but limited beyond that.

• The police were able to interview civilian witnesses at gun stores.

• The police had used a police surveillance camera at the Esquesing property. It had been unsuccessful in revealing any criminal activity although it had been useful in noting individuals coming and going. The police had also used a surveillance camera at Allen’s residence. It had yielded no useful information.

• The police had also been successful in using surveillance and tracking warrants to keep tabs on Rasmussen and McKinnon. The police had also used surveillance and tracking warrants to learn their movements and associations. Neither technique was yielding sufficient evidence to build a case for prosecution.

• The police did use a covert entry to gather information as set out in the second affidavit, but without the audio probe that was eventually installed at the Esquesing property it merely confirmed much of what the police already suspected.

• The police also used an undercover operator as set out in the second affidavit, with a consent authorization. The undercover operator had negotiated the sale of a firearm from Rasmussen, but the sale had not been consummated.

• DC Helmke rejected the use of search warrants during the investigation, as that would have merely tipped off the players. There were also few places to search. Rather, he believed that wiretaps could help identify fruitful locations for searches.

• Finally, DC Helmke noted that forensics did help the investigation. There was a DNA hit for McKinnon from a firearm seized by police in 2017.

[72] Investigative necessity must be measured against the objectives of the investigation, as Dambrot J. pointed out in Riley at para 152:

The object of this investigation was to solve the murder of Charlton. Solving a murder obviously means more than figuring out who did it. It means developing a viable prosecution of the persons believed to have done it. In this case, that meant developing a case against Riley, if the investigation supported his guilt, but also ascertaining and building a case against whoever else was involved in the crime.

[73] See also: R. v. Nero, 2016 ONCA 160 at para. 122.

[74] The police had reasonable grounds in both affidavits to believe that McKinnon and Rasmussen were manufacturing and selling illicit firearms. There were reasons to be suspicious of Allen, Andrews, Chan, and others. They had some evidence against these and other associates. The undercover operation probably would not have been successful in obtaining admissible evidence against these associates. That is because the undercover officer had already made contact with Rasmussen, a principal. Usually undercover operations start at the bottom of an organization and try to work their way up to the top.

[75] In other words, the police were having success in surveilling people and learning associations but not in obtaining evidence upon which the Crown Attorney could prosecute. As DC Helmke pointed out, however, none of the techniques yielded sufficient evidence to build a case for prosecution of all of the suspect players. DC Helmke stated:

I believe it is necessary to intercept the private communications of those who are alleged to be involved in this firearm trafficking to establish admissible evidence and bring them to justice.

[76] This objective was legitimate, and it was necessary to use wiretaps to achieve it.

(d) Did DC Helmke show a consistent pattern of failing to make full, fair, and frank disclosure?

[77] Mr. Bottomley points to several areas where DC Helmke materially misled the authorizing judge or omitted relevant facts. I granted leave to cross-examine on some of them. Ultimately, I find that I must disagree with the defence. There were, no doubt, errors, omissions, and perhaps exaggerations, but in my view there was no deliberate and consistent pattern of failing to make full, fair and frank disclosure.

[78] I set out what I see as some of the key alleged misrepresentations and omissions. A more fulsome discussion of the alleged misrepresentations and omissions is found in Appendix “A” to these reasons, the summary of my ruling on cross-examination. This section of my reasons should be read in conjunction with Appendix “A”.

[79] Mr. Bottomley argued that DC Helmke misled the authorizing justice about the nature of the firearms. DC Helmke indicated that the conversion kits do not contain serial numbers that can be traced back to the owner. That is in contrast with serialized weapons that can be traced through the Canadian Firearms Registry. The defence pointed out that Blue Line conversion kits were eventually given serial numbers. As I found in my ruling on cross-examination, however, DC Helmke distinguished between serial numbers kept track of by the federal registry and serial numbers kept track of by the distributor. He was clear that the police were able to obtain information from the distributor. He simply noted that private sellers were no under no obligation to keep track of the information. There was nothing misleading about this information.

[80] DC Helmke asserted in the first affidavit that Rasmussen and McKinnon often paid cash to avoid detection. The defence argued that there was evidence (in the form of a seized receipt) that McKinnon had paid cash but identified himself. That was so, but as I pointed out in my ruling on cross-examination, several sales receipts showed cash payments for conversion kits with no identification. As I stated in my ruling:

In my view, there is evidence in the affidavit and backup material to support the statement that McKinnon and others most often paid cash. I also find that there was evidence in the affidavit to support the implied assertion that cash was used to prevent identification. What seems reasonably clear is that the effort was a feeble one and failed, but it does not mean that no effort was made.

[81] The defence also argued that DC Helmke misled the authorizing judge when he described Rasmussen having a great deal of cash after meeting McKinnon. I also rejected this argument in my ruling on leave to cross-examine:

Defence counsel argues that a person leaving a Tim Horton’s with a napkin means that Rasmussen could have simply walked into the Tim’s, purchased a coffee with a large bill, and had a lot of change.

Defence counsel’s inference is reasonable and may well be correct, but that does not mean that the paragraph is misleading – unless the substitution of the term “stack” for “multiple” is considered misleading. In my view, the key point being made by the affiant is that Rasmussen appeared to have a lot of cash after leaving McKinnon’s vehicle. There is support in the surveillance report for that assertion.

[82] I agree with Mr. Bottomley that there were two misleading aspects to naming Chadwin Andrews. I have already mentioned these: indicating that Andrews had met with McKinnon at the Esquesing property; and omitting the fact that the surveillance team did not identify Andrews as the person who accepted the suitcase from McKinnon. DC Helmke admitted to these errors. In cross-examination he appeared reasonably certain that Andrews was, in fact, present both times. I disagree that this is a sign that DC Helmke was plagued by tunnel vision. DC Helmke had learned much during the investigation and subsequent arrests and prosecutions. It was also not unreasonable at the time of this motion for him to hew to the view that it was, in fact, Andrews who had visited the Esquesing property as set out in the first affidavit. As well, as I explained earlier, there were good reasons for him to believe that Andrews had received the suitcase – what DC Helmke failed to do, and should have done, was mention the surveillance team’s contrary opinion. In any event, as noted, I excised the identification of Andrews from the offending parts of the two affidavits.

[83] I also agree with Mr. Bottomley that DC Helmke misrepresented that Rasmussen was on a weapons prohibition in the first affidavit (that misrepresentation was not made in the second affidavit). I permitted cross-examination on the point. DC Helmke admitted he made a mistake. He denied trying to create the impression that Rasmussen had a criminal record. He explained that he would have mentioned it if Rasmussen did have one. He agreed that he did mention that Chan and Grace Allen did not have criminal records.

[84] The error regarding Rasmussen is obvious. DC Helmke was right to own up to it. I see no evidence that it was malicious. I think it is more likely that he was sloppy. It was not repeated in the second affidavit. I agree with Mr. Bottomley that DC Helmke became defensive during the cross-examination. That said, it would have made no sense for DC Helmke to set out to mislead the authorizing judge – it was a minor point. DC Helmke did not need to make Rasmussen look bad. There was plenty of evidence that Rasmussen was involved with McKinnon in sourcing GSG kits. It is obvious that there was a basis to name him in the authorization. I conclude that this was not a deliberate misrepresentation.

(e) Should the wiretap evidence be excluded?

[85] Ultimately, I find that there remained a basis upon which the authorizing judge could have granted the authorizations even after accounting for omissions and misrepresentations. There were reasonable grounds to believe that offences relating to firearms manufacturing and trafficking had taken place and were continuing to take place. The defence did not seriously suggest otherwise. Although there was insufficient evidence of a criminal organization, the affidavit did demonstrate investigative necessity in relation to the firearms manufacture and trafficking offences. Although the naming of Andrews in the first affidavit was a violation of his s. 8 rights, as I indicated earlier the violation was moot since he was properly intercepted through McKinnon’s phone. Overall, there was no violation of s. 8 of the Charter. Accordingly, s. 24(2) of the Charter is not engaged; but that is not the end of the analysis.

[86] Mr. Bottomley argued that DC Helmke’s omissions and misrepresentations risked seriously undermining the system of prior authorization. The authorizations must be set aside, he argued, in order to maintain confidence in the integrity of the administration of justice. The pattern of omissions and misrepresentations was a serious attack on the system of prior authorization. He argued that I should exercise my discretion and set aside the authorizations. The high threshold for doing so has been met.

[87] Mr. Bottomley’s argument on this point is compelling and deserving of serious consideration, but, ultimately, I find myself unable to agree. The omissions and misrepresentations by DC Helmke were problematic, but they did not rise to the level that requires exclusion of the evidence. When I take into account all of the circumstances, I find that I should not exercise my residual discretion and set the authorizations aside.

[88] A reviewing court has a residual discretion to exclude evidence obtained from a constitutionally valid wiretap. The discretion exists to set aside an otherwise valid warrant where there is non-disclosure for an improper motive or a deliberate attempt to mislead the authorizing judge. The threshold for setting aside a warrant in these circumstances is high: R. v. Paryniuk, 2017 ONCA 87 at para. 62. The reviewing judge must exercise that residual discretion having regard for the totality of the circumstances: R. v. Phan, 2020 ONCA 298 at para. 56.

[89] Watt J.A. stated thus in Paryniuk at para. 74:

The appellant accepts that he must demonstrate that the police conduct subverted the pre-authorization process in order to bring his case within the sweep of the residual discretion. Subversion connotes undermining, corrupting, weakening, destroying or disrupting a system or process. In plain terms, an abuse of the pre-authorization process by non-disclosure or misleading disclosure or their like.

[90] I agree with the defence that there were problems in the two affidavits. As I have already mentioned, the evidence did not meet the test for a criminal organization. That was a serious failing. It was not, however, a deliberate or subversive attempt to hide evidence. DC Helmke did not exaggerate the evidence regarding Allen and Chan. Rather, his characterization of the evidence of the involvement of Allen and Chan was erroneous. I see no evidence that it was malign.

[91] Improperly naming Andrews in the first affidavit was also serious, as was the mention of Rasmussen’s non-existent weapons prohibition.

[92] When I examine all of the circumstance, I see a pattern of mistakes by DC Helmke, some more serious than others. What I do not see is a deliberate attempt to subvert, as described and defined by Watt J.A. in Paryniuk. The high threshold for setting aside a valid authorization has not been met.

DISPOSITION

[93] The application is dismissed.

Released: January 26, 2021

APPENDIX “A”

HER MAJESTY THE QUEEN

Respondent

• and -

CHADWIN ANDREWS, AKIL JONES, KIMANI PHILLIPS, JAMAR QUINTYNE, KIA SAMPSON, JOHNATHAN SINCLAIR

Applicants

SUMMARY OF RULING ON APPLICATION FOR LEAVE TO CROSS-EXAMINE

1. Project Renner was an Ontario Provincial Police investigation into the manufacture and trafficking of firearms. It was alleged that a group of individuals purchased conversion kits in order to make working firearms out of BB and pellet guns. The individuals then sold the firearms and made a handsome profit.

2. Detective Constable Helmke swore two affidavits to obtain two wiretap authorizations. He swore the first affidavit on September 18, 2018. Justice O’Connell of this court granted a wiretap authorization and various ancillary orders on September 20, 2018. DC Helmke swore the second affidavit on October 23, 2018. Justice O’Connell granted the second wiretap authorization and various ancillary orders on the same day.

3. The investigation resulted in several arrests and ultimately several convictions. On the day scheduled for the commencement of the motion there were eight individuals who still faced charges. The Crown withdrew charges against Acesia Ali and Zachary Ardizzi. Of the six who remain, Chadwin Andrews, Jonathan Sinclair and Jamar Quinten have brought an application to exclude the evidence obtained from the wiretaps.

4. As a preliminary matter, the defence, represented in an omnibus fashion by Mr. Bottomley and Ms. VanderHeyden, applis for leave to cross-examine DC Helmke on 13 discrete areas. The first six areas ((a) to (f)) deal with the first affidavit. The remaining seven areas ((g) to (m)) deal with the second affidavit:

(a) Chadwin Andrews Allegedly Meeting Bruce McKinnon on July 17, 2018 – Leave To Cross-Examine Granted

5. Helmke states that Andrews met with McKinnon at the alleged workshop at 8329 Esquesing Line, Milton, on July 17, 2018. DC Helmke goes on to state that he believes Andrews purchased a firearm. That meeting led to naming Andrews as a known person in the first affidavit at paras. 265 and 267. That meeting was also a piece of evidence leading to naming Andrews as a Principal Known Person in the second affidavit at paras. 190 and 347.

6. The Physical Surveillance Report (PSR) for July 17, 2018 notes that a Mercedes registered to Andrews was seen on that day attending 8329 Esquesing Line. The driver was not identified. There is nothing in the report to suggest that Andrews purchased a firearm.

7. The Crown concedes that cross-examination is proper on this point. Since DC Helmke’s statements led to naming Andrews as a Known Person, it is a potentially material misrepresentation. I agree with the concession. Defense may cross- examine DC Helmke on this point.

(b) Assertion That Converted Firearms Have No Serial Number – Leave to Cross- Examine Denied

8. In para. 62 of the first affidavit DC Helke swears that:

It should also be noted that these converted handguns have no serial numbers that can be traced back to the owner - per the Canadian Firearms Registry. This has been known to positively affect the price of an illegal firearm.

9. Defence, however, argues that in fact the Blue Line conversion kits do contain serial numbers. The affiant was required to include both positive and negative information, and the affiant left the impression that these handguns are untraceable.

10. I must respectfully disagree. I think it is clear, as the Crown points out, that in paras. 71 and 76 of his first affidavit DC Helmke notes that Blue Line began keeping track of serial numbers. I think it is fairly obvious that Blue Line is a private company. In contrast the Canadian Firearms Registry is a government database that can be readily accessed by police officers. Blue Line is not. No doubt with proper pre- conditions a police officer could obtain Blue Line records through a production order. I see nothing misleading about the assertions here and I dismiss the application to cross-examine on this point.

(c) The Use Of Cash To Avoid Detection – Leave To Cross-Examine Denied

11. In para. 190(c) of the first affidavit DC Helmke states:

12. I believe that the offence committed for the benefit, at the direction, or in association with the McKINNON Group is Firearms Trafficking, contrary to s. 99 of the Criminal Code of Canada. The following is a summary of my grounds for my belief that Bruce McKINNON, Jon RASMUSSEN, and Graham ALLEN are trafficking in firearms:

(c) They most often pay in cash. On only one known occasion was it documented that McKINNON purchased components online, thereby identifying himself.

12. DC Helmke implies that the purpose of paying in cash is to avoid detection. Defence counsel points out, however, that in fact there is evidence showing that McKinnon and Rasmussen often had to provide their names and particulars, and only paid in cash once.

13. In fact, there is support in the affidavit for the notion that McKinnon and/or Rasmussen paid cash. Surveillance revealed McKinnon paying cash for conversion kits. One Bulls Eye sales receipt (reproduced at Tab B of the Application Record) did show that McKinnon paid cash but identified himself. Several other Bulls Eye sales receipts (reproduced at Tab D of the Application record) showed several sales receipts for cash without a name. There is also surveillance video.

14. In my view, there is evidence in the affidavit and backup material to support the statement that McKinnon and others most often paid cash. I also find that there was evidence in the affidavit to support the implied assertion that cash was used to prevent identification. What seems reasonably clear is that the effort was a feeble one and failed, but it does not mean that no effort was made. I dismiss the application to cross-examine on this point.

(d) Rasmussen’s “Prohibition” – Leave To Cross-Examine Granted

15. In para. 210 of the first affidavit DC Helmke stated:

A records check of RASMUSSEN revealed that he is prohibited firearms and weapons.

16. It is certainly true, as the Crown points out, that everyone is “prohibited” from owning a firearm if he or she does not have a licence. It is also true that in para. 190(d) of the first affidavit DC Helmke states:

McKINNON and ALLEN have firearms and weapon prohibitions; RASMUSSEN had a firearms licence but it has lapsed.

17. That paragraph certainly distinguishes between those on a firearms prohibition and those not on a firearms prohibition. That said, as defence counsel pointed out in oral argument para. 210 of the affidavit very clearly implies that the records check revealed something. No records check is required to know that everyone is “prohibited” in the large sense. The paragraph gives the impression that Rasmussen has a criminal record and that he was on a Criminal Code firearms prohibition of some kind. That is certainly the inference I would have drawn if I were the authorizing judge. In any event, the description was not accurate. It is possible that it was a piece of evidence that led the issuing judge to find that Rasmussen was a member of a criminal organization. As a result, it may be a material misrepresentation going to one of the pre-conditions of the authorization. Defence counsel may cross-examine on the point.

(e) Rasmussen With A Large Amount Of Cash – Leave To Cross-Examine Denied

18. At para. 103 of the first affidavit DC Helmke stated:

19. On the 26th of July 2018, PWEU conducted surveillance of Bruce McKINNON and Jon RASMUSSEN making the following observations:

(a)Jon RASMUSSEN and Bruce McKINNON met in the area of 403 and Bronte Road where Jon RASMUSSEN sat in Bruce McKINNON'S vehicle for approximately 10 minutes; and

(b)Bruce McKINNON departed the area and Jon RASMUSSEN was observed walking in the parking lot with a stack of $20 bills in his right hand that he moved to his left hand.

19. The defence argument is that this paragraph is misleading when compared to the physical surveillance report. The parking lot in the area of 403 Bronte Road is a Tim Horton’s. The report itself states:

RASMUSSEN exited MCKINNON’S vehicle and was misplaced in the parking lot while he was on foot.

MCKINNON departed from location.

RASMUSSEN is observed walking back to his vehicle from the area of Tim Horton’s, he has a napkin in his left hand and multiple $20 bills in his right hand. He is observed transferring the money to his left hand.

20. Defence counsel argues that a person leaving a Tim Horton’s with a napkin means that Rasmussen could have simply walked into the Tim’s, purchased a coffee with a large bill, and had a lot of change.

21. Defence counsel’s inference is reasonable and may well be correct, but that does not mean that the paragraph is misleading – unless the substitution of the term “stack” for “multiple” is considered misleading. In my view, the key point being made by the affiant is that Rasmussen appeared to have a lot of cash after leaving McKinnon’s vehicle. There is support in the surveillance report for that assertion. The application for leave to cross-examine on that point is dismissed.

(f) McKinnon Meets An Unknown Male on June 24, 2018 – Leave To Cross- Examine Denied

22. In para. 202 of the first affidavit DC Helmke states:

On the 24th of July 2018, RASMUSSEN and McKINNON attended a Canadian Tire. While RASMUSSEN waited in his vehicle, McKINNON met with a male who walked away with something shiny in his hand.

23. This paragraph is set out in the section of the affidavit setting out the reasons for naming McKinnon as a Principal Known Person. It is more evidence that, according to DC Helmke, McKinnon was trafficking illegal firearms.

24. Defence counsel argues that this description of the meeting is an over-simplification. The surveillance report actually states:

Both vehicle pull into the Milton Cross Roads Mall located at 20 1280 Steeles Avenue E. ONT AX 31548 is first to park in front of the the Canadian Tire garage area. RASMUSSEN is out of the vehicle and walks out of sight. ONT AJ 33975 parks a few spaces away and McKINNON remains in the driver’s seat. ONT AJ 33975 then after a few seconds pulls away and stops in the laneway near the front of the Service Entrance for the garage for Canadian tire. A U/K male dressed in black approaches driver’s side and then goes out of sight to this observer.

The U/K male is re-acquired and now observed walking briskly away from McKINNON’s vehicle while carrying a shiny metallic item in his left hand. This item is placed into his left pocket and he is holding a cell phone in his right hand.

25. Defence counsel argues that the affidavit is misleading because it states that Rasmussen waited in his vehicle when, in fact, he was out of the vehicle when the transaction (if it was a transaction) occurred. In my view, however, the key point is that it was a transaction conducted by McKinnon, and it was in the section explaining why McKinnon – not Rasmussen – is a Principal Known Person. I do not find it misleading, and I dismiss the application to cross-examine on this point.

(g) Chadwin Andrews Allegedly Meeting Bruce McKinnon – Leave To Cross- Examine Granted

26. In the second affidavit DC Helmke named Andrews as a Principal Known Person. The problem with the alleged July 17 2018 was carried on into paras. 190 and 347 of the second affidavit. The Crown concedes that cross-examination is proper on this ground and it is granted.

(h) The Dirt Bike Call – Leave To Cross-Examine Denied

27. In para. 184 of the second ITO DC Helmke discusses a conversation intercepted between MacKenzie and Rasmussen on October 4 2018. DC Helmke summarizes the call:

Session 00568 - At 10:50 a.m. MACKENZIE called RASMUSSEN and discussed RASMUSSEN bringing "custom handlebars" to him. ''Not even one pair". MACKE ZIE advised that 'dirt bikes" are his thing, and his friends don't care if they are older or newer, the newer the better because they 'last longer." MACKENZIE said that his friends don't care if they buy a 250, a 460, a 125, or even a little 80. MACKENZIE talked about RASMUSSE and his friend and how they do a good job, they take two or three Suzukis that are write-offs and make one good one. MACKENZIE said that his friends get "all excited to buy one and anxious and then they wait and when you do have one ready [MACKENZIE] is scrambling to find a buyer with the cash. They planned to meet at 1 :30 p.m., at the latest. Note: A call at 4:03 p.m., indicated that they still had not yet met but were planning to.

28. DC Helmke, relying on other officers, concludes that this call contains coded language about firearms, and is not a call about dirt bikes.

29. Defense counsel argues that this summary fails to include important information that detracts from the fact that this might not have been coded language. McKinnon and Rasmussen were motorcycle enthusiasts. Chan and Allen were motorcycle mechanics. As well, DC Helmke was aware that there was aware that there was surveillance of McKinnon and Rasmussen loading motorcycles.

30. In my respectful view, there seems to be little chance that McKenzie and Rasmussen were actually discussing dirt bikes and every chance they were using coded language when the second affidavit is read as a whole. Indeed, the second affidavit has multiple examples of interceptions where dirt bikes are discussed in what seems rather clearly to be coded language. For example, para. 40(c):

40(c) Session 00179-At 3:12 p.m., on the 25th of September 2018, RASMUSSEN and McKINNON talked about RASMUSSEN dealing with people on the "forum" and trying to just find the "engine" not the whole "dirt bike." (Note: DC WOLFE has told me that the forum is likely Gun Nutz, as indicated by the previous session, and that people on this forum are buying and sellingfirearms not dirt bikes)

31. As well, para. 75(a):

75(a) Session 0049 (289-218-6884) - At 4:17 p.m., on the 21st of September 2018, RASMUSSEN had a conversation with MACKENZIE and told him that he had the "head cover" for his friend's "golf club" sorted out. It would cost $1200-1400. Within the same conversation, RASMUSSEN began talking about ''mufflers" for "dirt bikes.”

32. And para. 145:

At 3:12 p.m., on the 25th of September 2018, RASMUSSEN and McKINNON talked about RASMUSSEN dealing with people on the "forum" and trying to just find the "engine" not the whole "dirt bike." (Note: DC WOLFE has told me that the forum is likely Gun Nutz, as indicated by the previous session, and that people on this forum are buying and selling firearms not dirt bikes).

33. There are other examples in the second affidavit. In my view, it could not have made any difference if DC Helmke had provided the information suggested by defence counsel. In my view, that information does not detract sufficiently (or really, at all) such that it could undermine the preconditions for the issuance of the authorization. Leave to cross-examine on this point is dismissed.

(i) Call with Between Rasmussen and Levar Williams – Leave To Cross-Examine Denied

34. At para. 297 of the second affidavit DC Helmke swears that a call on September 21, 2018 between Rasmussen and Levar Williams appears to be about trafficking firearms. DC Helmke states that Williams asked if there is any word about the “things”. He also states:

I do not believe that this call is of a personal nature as there has been no other communication between the two, nor any semblance of familiarity.

35. The call was obviously disclosed because it comes under the heading of Other Known Persons in the second affidavit. It seems to me after listening to the call that (contrary to DC Helmke’s assertion) Rasmussen and Williams are quite familiar with each other. They immediately commence a discussion of sex. Although it is potentially an example of an illicit transaction, it is about satisfying the requirement to name Williams, not Rasmussen, as a known person. In the event the police did not intercept Williams’ phone. Leave should not be granted to cross-examine on this point because this even if this paragraph were found to be a misrepresentation it could not undermine the pre-conditions for the second authorization.

(j) “Piece” vs. “Shoe” – Leave To Cross-Examine Denied

36. In para. 140 of the second affidavit DC Helmke summarizes an intercepted conversation between Rasmussen and McKenzie. DC Helmke states:

MACKENZIE asked RASMUSSEN if he was going to bring his "tool" because MACKENZIE was going to swap his 'piece" with an unknown person.

37. That is an inaccurate quote because Rasmussen doesn’t use the word “piece”; he uses the word “shoe”. The defence position is that this conversation is made to seem more nefarious than it already is because the word “piece” is a commonly used term for firearm. The Crown acknowledges that it is a mistake. In my view, cross-examination would not go to the pre-conditions for the authorization. I have listened to the call, and it seems very clear that MacKenzie and Rasmussen are speaking in code. In the context of all the other calls in the affidavit, it seems clear that the code refers to firearms. In my view, all that would happen on cross- examination is that DC Helmke would acknowledge the error and nothing further would be gained. I see no basis upon which to grant cross-examination on this point.

(k) Rasmussen’s Access To Ammunition – Leave To Cross-Examine Granted

38. In para. 75(c) DC Helmke states:

39. In addition, since the Authorization, RASMUSSEN has been intercepted having a large number of communications about firearms, as well as trying to source conversion kits. I have included some interceptions of note:

(c) Session 00072 (289-218-6884)-At 3:21 p.m., on the 22nd of September 2018, in a conversation with Natalia PLUCISZ, RASMUSSEN said that his father was mad at him. His father said, "My ammunition is not yours to fuck with.”

39. Ms. Plucisz was Mr. Rasmussen’s girlfriend. Much of the call is taken up with the intriguing health problems of Ms. Plucisz’s cat. Defense counsel argues that this conversation fails to provide a full accounting of the conversation. It seems to imply that Rasmussen has access to his father’s ammunition, which is an important point. In fact, the full call indicates that Rasmussen’s father kept the ammunition in a locked case to which Rasmussen’s brother had the key and to which Rasmussen had no access.

40. Access to ammunition is a serious issue in the second affidavit, as several of the players were prohibited from purchasing it legally. I agree with the defence that this is potentially a misrepresentation that could go to the preconditions for granting the authorization. The application to cross-examine on this point is granted.

(l) Meeting Between Bruce McKinnon and possibly Chadwin Andrews On September 27, 2018 – Leave To Cross-Examine Granted

41. In paras. 73(g) and 203 of the second affidavit DC Helmke indicates that Bruce McKinnon had a meeting with Chadwin Andrews on September 27, 2018. In the course of that meeting McKinnon passed a black suitcase to Andrews, who drove away in a Mercedes. The Mercedes was registered to Andrews.

42. The importance of this observation is that it comes within the section of the affidavit naming Andrews as a Principal Known Person. It implies that Andrews took possession of a firearm from McKinnon, and that firearm was in a black suitcase. The problem, however, is that the surveillance report indicates that the person driving the Mercedes did not appear to be the registered owner – in other words, the surveillance team observed that the person driving Andrews’ car did not appear to be Andrews.

43. In my view, that was an important fact that should have been pointed out to the issuing judge. It is something that went to whether Andrews should have been named as a Principal Known Person. It is not a detail. The application to cross- examine on this point is granted.

(m) The Drone Call – Leave To Cross-Examine Granted

44. This alleged misrepresentation is related to the previous alleged misrepresentation. DC Helmke stated the following in paras. 73(b) and 304 of the second affidavit:

73(b) Session 00075 (647-449-6958) - At 9:22 a.m., on the 24th of September 2018, McKINNON received a text from LAKHAN to meet "Capo' and give him the "thing;"

304. An as yet unknown male who goes by the alias "Clutch" has been intercepted having communication with Bruce McKINNON. On one occasion at 2: 17 p.m., on the 27th of September 2018 an unknown male called Mc ON and identified himself as “Clutch." McKINNON told him he was about to go get rid of that "thing." Clutch asked him if he had his buzzer and told McKINNON to message him on that.

This occurred on the same date that McKINNON met with ANDREWS for what I believe to be a handgun deal.

45. The defence argument is that the second affidavit misrepresents what actually took place on the call between McKinnon and “Clutch”. The defence argues that it is quite possible that the call concerned a drone.

46. I have reviewed the call, and in my view McKinnon mentions a “flying thing”, which is slightly different than the way that DC Helmke represented the call. I grant the application to cross-examine on this point, but only because it appears related to the meeting that day – a meeting in relation to which I have granted cross-examination. It seems to me that the two points are factually intertwined enough that if I am inclined to grant leave to cross-examine on one I ought to grant leave on the other.

Date: December 2, 2020

“R.F. Goldstein J.”

COURT FILE NO.: CR-20-50000032-0000

CR-20-50000034-0000

CR-20-50000045-0000

DATE: 20210126

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ACESIA ALI, CHADWIN ANDREWS, AKIL JONES, KIMANI PHILLIPS, JAMAR QUINTYNE, KIA SAMPSON, JOHNATHAN SINCLAIR

REASONS FOR JUDGMENT ON APPLICATION TO EXCLUDE WIRETAP EVIDENCE

R.F. Goldstein J.