COURT FILE NO.: CJ 10122
DATE: 2021-07-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
HESHAM ALY
Applicant
Benjamin Schnell, for the Crown/ Respondent on Application
Darwin Witmer, for Hesham Aly/Applicant on Application
HEARD: July 22, 2021
DECISION ON PRE-TRIAL APPLICATION
S.8 CHARTER BREACH AND EXCLUSION OF EVIDENCE S.24(2)
GIBSON J.:
[1] Hesham Aly (“the Applicant”) is charged on indictment number CJ10122 dated October 28, 2020, as amended on July 22, 2021, that between the 23rd day of October 2017 and the 18th day of September 2018, at the City of Kitchener, he did fraudulently personate Tina Thomas and Kevin Brown, causing disadvantage, contrary to s.403(1)(c ) of the Criminal Code of Canada.
[2] By way of a Notice of Application dated June 22, 2021, the Applicant seeks the exclusion pursuant to s.24(2) of the Charter of Rights and Freedoms (“Charter”) of evidence seized from his residence on December 18, 2018, pursuant to a search warrant on the basis of a breach of the Applicant’s s.8 Charter rights.
Background and Overview
[3] Between October 23, 2017, and September 18, 2018, various third-party community and social service agencies received by letter mail cover letters with attached documents that purported to be sent by the two complainants, Nick Brown and Tina Thomas. The documents included personal and confidential information regarding mutual clients of Carizon Family Community Services (“Carizon”) and Lutherwood.
[4] Carizon is a non-profit social service agency specializing in children’s mental health, youth engagement and development, family violence, individual and family counselling, credit counselling, settlement supports and collective wellness.
[5] Lutherwood is a not-for-profit organization that provides mental health, housing and employment services in the Waterloo and Wellington region.
[6] Similar documentation with the same cover letters purporting to be the two complainants (Brown and Thomas) was sent electronically with the use of various emails.
[7] The offence charged is alleged to have taken place on the following dates:
Document (letter mail) breaches: late October to early November 2017, and
Electronic (email) breaches: April 8, 2018, to May 7, 2018.
[8] The investigation led to Hesham Aly being a suspect because: he had worked at Carizon; his employment had been terminated; he commenced a Human Rights Tribunal Complaint against Carizon; the two persons alleged to have been personated were scheduled witnesses at the Human Rights hearing; and the sensitive, confidential client documents that were sent in letters and emails were alleged to have been files Hesham Aly would have had access to, and alleged to be, not the same documents, but the same clients that were in documents Hesham Aly had used in his Human Rights Tribunal complaint.
[9] The letters (paper documents) that were received were retrieved by Lutherwood in late October to early November of 2017, and, after several months, on March 1, 2018, the letters were provided to the Waterloo Regional Police Service (“WRPS”). DNA analysis revealed DNA on three of the envelopes.
[10] Covert surveillance on Hesham Aly resulted in an abandoned tissue being retrieved and used to develop Mr. Aly’s DNA profile. A DNA expert was of the opinion that the DNA profile from the tissue could not be excluded from being the contributor of the DNA found on the three envelopes.
[11] Analysis of the emails revealed the following:
• Eight separate email addresses were used to send the emails to various third parties,
• The metadata on one of the documents, that was attached in all of the emails, revealed the author of that particular document was named “Hesham”,
• There were three IP addresses associated with the emails that were sent.
[12] The WRPS obtained production orders relating to Google LLC, the Fibernetics Corporation and The Eyesurf Corporation to determine the subscriber of the IP addresses.
[13] The WRPS ultimately obtained a warrant to search the Applicant’s residence for:
Any and all devices capable of connecting to the internet and sending and receiving electronic information, including any and all devices capable of storing electronic information; and
Any and all documents located in hardcopy format associated to the data and privacy breaches that occurred at Carizon and Lutherwood.
[14] The Information to Obtain (“ITO”) the search warrant has 144 paragraphs.
[15] There were three attempts made by the WRPS at obtaining the warrant.
[16] Two justices of the peace had questions about the ITO and declined to issue a warrant. On the basis of the final ITO, Justice of the Peace Stinson ultimately granted the warrant on December 17, 2018, to be executed on December 18, 2018.
[17] On December 17, 2018, Justice of the Peace Stinson authorized the WRPS to search 18-20 Paulander Drive in Kitchener on December 18, 2018 between 6:00am and 9:00pm, for any and all devices capable of connecting to the internet, including any and all devices capable of storing electronic information and any and all documents associated with the privacy breaches.
[18] In executing the search, WRPS officers seized a business card belonging to Nick Brown, documentation confirming the Applicant’s previous address of 19 Bismark Avenue, and the Applicant’s cover letter and resume. Police also seized a white Toshiba laptop and Samsung cell phone.
[19] The Applicant was arrested on December 18, 2018. The WRPS executed the search warrant at the time of his arrest.
[20] This application as originally framed challenged the validity of the production orders and the search warrant, and sought leave to cross-examine the affiant of the Google Production Order, D/Sgt. Girhiny, and the affiant of the residence search warrant, D/Cst. Murray.
[21] At the commencement of the hearing, counsel for the Applicant advised that he would no longer seek leave to cross-examine these police officers, and that he would confine his submissions to the issue of the sufficiency of the ITO for the search warrant for 18-20 Paulander Drive. The gist of his submission is that the investigation regarding 19 Bismark Avenue was insufficient, and that further clarity was needed regarding that address before a search warrant could properly issue in respect of Mr. Aly’s current address at 18-20 Paulander Drive. In particular, he was critical of paragraphs 86 and 87 of the ITO, and questioned, in effect, whether a sufficient nexus had been demonstrated between Mr. Gilder and Mr. Aly at 19 Bismark Avenue, to substantiate a search at 18-20 Paulander Drive.
[22] Regarding the search for electronic devices the ITO for December 18, 2018, reveals that one of the IP addresses was subscribed by a man who used to live at 19 Bismark Avenue, Kitchener, Ontario, in 2011. It is alleged Hesham Aly lived at 19 Bismark Avenue during the offence dates involving the emails (April and May 2018). At para. 87 of the ITO, the affiant stated at subparagraph xx “ I believe on reasonable and probable grounds that ALY caused the electronic privacy breaches in question by using an IP address of 23.91.187.50 associated to GILDER, during a time period when both lived at 19 Bismark Avenue in Kitchener, Ontario.”
[23] The warrant granted a search of 18-20 Paulander Drive, Kitchener, Ontario, which was the residence of Hesham Aly at the time of the execution of the warrant.
[24] The Applicant submits that the warrant should not have issued because: the ITO, dated December 17, 2018, relied upon improperly obtained information; the ITO relied upon alleged evidence that was misleading; there were insufficient grounds to permit a search of the former residence of Mr. Aly located at 19 Bismark Avenue; and there were insufficient grounds to permit a search of 18-20 Paulander Drive.
[25] The Applicant challenges the facial validity of the ITO and submits that the ITO was: misleading and relied upon improperly obtained information; set out in the definition section the meaning of IP address and then relied on a different meaning in attempting to connect Mr. Aly to one of the IP addresses; did not satisfactorily state how Hesham Aly could have used one of the IP addresses; did not indicate how Hesham Aly could have used the computer that is referred to in the definition of IP Address in the definition section of the ITO; set out statements that were speculative of how Hesham Aly may have accessed the specific IP address purportedly connected to 19 Bismark Avenue; and, brought the application many months after the alleged offences and after Mr. Aly had moved to another residence.
[26] The Respondent Crown in response suggests that the bottom-line issue is whether the issuing Justice of the Peace could have issued the warrant on the basis of the ITO pursuant to s.487 of the Criminal Code, if he or she was satisfied by the ITO that there were reasonable grounds that the proposed search could afford evidence of the commission of an offence. My task in review, the Crown submits, is not to assess whether I would have granted the warrant, but whether it could have issued on the basis of the information in the ITO. The Crown submits that the Applicant has not met his onus on the application, that there was a proper basis in the ITO for the warrant to issue, and that no s.8 breach has been established.
Issues
[27] The Applicant advances the following arguments:
a. The warrant is facially invalid because:
i. despite focusing on IP #1, the ITO does not sufficiently connect IP #1 to the Applicant;
ii. the ITO did not establish that the search of 18-20 Paulander Drive would afford evidence with respect to the commission of an offence;
b. The evidence found during the search of 18-20 Paulander Drive should be excluded under s.24(2) of the Charter because of a combination of the above issues.
[28] In response, the Respondent argues:
a. The ITO contained a sufficient basis upon which a Justice could conclude that the warrant would afford evidence with respect to the Applicant’s commission of the offence of Personation. In particular, the ITO contained ample evidence connecting IP #1 to the Applicant, and sufficient grounds to permit the search of 18-20 Paulander Drive;
b. The warrant is presumed valid and the Applicant has not met his onus in establishing invalidity; regardless, the Respondent residually argues that there were ample grounds for its issuance.
The law applicable to review of prior judicial authorizations
[29] To be reasonable under s.8 of the Charter, a search must be authorized by law, the authorizing law itself must be reasonable, and the search must be carried out in a reasonable manner. The Applicant bears the onus, as the party asserting a breach of their Charter rights, to show that the search contravened s.8: R. v. Cornell, 2010 SCC 31 at paras. 16-17.
[30] Pursuant to s.487 of the Criminal Code, a Justice may issue a search warrant if he or she is satisfied that there are reasonable grounds to believe that the search “will afford evidence with respect to the commission of an offence”.
[31] “Reasonable grounds to believe” has been described as referring to “where credibly-based probability replaces suspicion”, “practical, non-technical” probability”, and “reasonable probability”. This standard is substantially lower than proof beyond a reasonable doubt, proof on a balance of probabilities or even a prima facie case. The standard necessarily imports some measure of uncertainty.
[32] The phrase “in respect of” denotes “words of the widest possible scope. They import such meanings as ‘in relation to’, ‘with reference to’ or ‘in connection with’. The phrase ‘in respect of’ is probably the widest of any expression intended to convey some connection between two related subject matters”. In CanadianOxy Chemicals Ltd. v. Canada (Attorney General), 1999 CanLII 680 (SCC), [1999] 1 SCR 743 at para. 15, the Supreme Court explicitly imported the phrase into to the search warrant context, stating,
[T]he phrase “evidence with respect to the commission of an offence” is a broad statement, encompassing all materials which might shed light on the circumstances of an event which appears to constitute an offence. The natural and ordinary meaning of this phrase is that anything relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability falls within the scope of the warrant.
[33] A search conducted pursuant to a prior judicial authorization is presumptively valid. The reviewing judge does not substitute his or her view for that of the authorizing justice. If the reviewing judge concludes that the authorizing justice could have granted the authorization, then he or she cannot interfere. Put another way, only where the reviewing court determines that there was no basis upon which the authorizing judge could have issued the warrant can the reviewing court find a breach of s.8. As stated by the Supreme Court of Canada in R. v. Araujo, 2000 SCC 65 at para. 51, the ultimate question is “simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued.”
[34] The reviewing judge must take into account that authorizing justices may draw reasonable inferences from the evidence in the ITO. The informant need not underline the obvious. The review requires a contextual analysis of the record, not a piecemeal dissection of individual items of evidence shorn of their context in a vain search for alternative exculpatory inferences. The ITO should be reviewed as a whole and not with a limited focus on certain passages or paragraphs.
[35] The inferences, conclusions, and beliefs of the ITO Affiant need not be the only reasonable ones to be drawn from the evidence. In particular, the evidence may also be capable of alternative, innocent, or contrary interpretations and explanations, but that does not render “non- innocent” inferences, conclusions, and beliefs unreasonable. So long as the ITO contains reliable evidence that might reasonably be believed, on the basis of which the warrant could have issued, that is sufficient to confirm the validity of the warrant.
[36] The police conduct is not to be reviewed with a fine-toothed comb. The specificity and precision of legal drafting, properly expected of lawyers at trial, is not the standard that Affiants should be held to when drafting a warrant. There is no obligation on an ITO Affiant to anticipate, and explain away in advance, every conceivable indicia of a crime they did not see, and every conceivable investigative step that they did not take, to counter the creative arguments of able defence counsel on a review hearing that may take place many months or years after the event.
[37] As the warrant will be sought on an ex parte basis, police have a legal duty to lay out the evidence that forms the basis of their reasonable grounds fully, frankly and fairly. Only with full, frank, and fair disclosure of material evidence can the issuing justice make an independent determination on whether reasonable grounds have been made out. Any facts in the ITO that are inaccurate or which were obtained as a result of a Charter violation must be excised from the search warrant. The reviewing judge must then consider whether the warrant could have been issued without the inaccurate or improperly obtained facts. The reviewing judge has no jurisdiction to excise parts of the ITO which are correct.
Types of Warrant Challenges
[38] An Applicant challenging a prior judicial authorization may attack its “facial validity” or its “sub-facial validity”.
[39] “Facial Validity” refers to whether the warrant, exactly as drafted, could have been issued. The factual record for this type of challenge is limited to the ITO that was before the issuing justice. An application of this kind only disputes whether a justice could have concluded, on the basis of the ITO, that the warrant could have been issued. In these cases, the applicant does not dispute the truthfulness or reliability of the contents of the ITO.
[40] An attack on an authorization’s “Sub-facial Validity” (commonly referred to as a “Garofoli” application) refers to the reliability of the content of the ITO, and its relationship to what actually happened. Sub-facial challenges involve a record that is excised and amplified by the reviewing judge. The reviewing judge on a sub-facial validity challenge considers whether, after his/her excision and amplification of the ITO, there is still information that might reasonably be believed and upon which the warrant could have issued. Determining whether a warrant “could” have issued does not permit the reviewing justice to simply substitute what they would have done in place of the issuing justice.
Analysis
[41] The ITO contained a sufficient basis linking the Applicant to IP #1. Specifically:
• The Applicant is one of the only people who could have had access to the documentation included in the breach;
• Some of the data breaches stemmed from IP #1;
• The subscriber connected to IP #1 was Boucher;
• Boucher was the intimate partner of Gilder and it is common for one intimate partner to pay for another’s internet access;
• Gilder and the Applicant each shared the residence of 19 Bismark Avenue;
• The Applicant lived at 19 Bismark Avenue during the time the breaches occurred;
• All of the electronic breaches associated to IP #1 occurred after the Applicant changed his registered address to 19 Bismark Avenue and prior to changing it to 18-20 Paulander Drive.
[42] The inferences, conclusions, and beliefs of the ITO Affiant need not be the only reasonable ones to be drawn from the evidence. Evidence may also be capable of alternative, innocent, or contrary interpretations and explanations – but that does not render “non-innocent” inferences, conclusions, and beliefs unreasonable. It is the Respondent Crown’s theory that the emails at issue were routed through IP #1. The circumstantial evidence supporting this rises well above the standard required to maintain the warrant. So long as the ITO contains reliable evidence that might reasonably be believed, on the basis of which the warrant could have issued, that is sufficient to confirm the validity of the warrant.
[43] The ITO contained a sufficient basis upon which a Justice could conclude that a search of the Applicant’s residence could result in evidence linking him to the data breaches. Specifically:
• The Applicant demonstrated his possession of Carizon’s client files through his actions during the Human Rights Tribunal mediation.
• The Applicant demonstrated that he had possession or access to devices capable of accessing the internet by his sending of emails to Brant FACS;
• The Affiant believed that devices capable of sending and storing electronic information are often used by their owners on a daily basis, making the owner’s home residence the most reasonable location in which to store them;
• Many data breaches were linked to an IP #1, which was connected to the Applicant’s former residence, 19 Bismark Avenue. It was believed that the electronic breaches occurred from within the Applicant’s home;
• The Applicant had changed his registered address from 19 Bismark Avenue to 18-20 Paulander Drive by November 18, 2018;
• Covert surveillance was done on the Paulander location on thirteen occasions between September 13, 2018 and December 10, 2018. From December 3rd to 10th, 2018, the Applicant was seen entering and leaving Paulander multiple times. Only one other person was observed entering or leaving Paulander over those four months. Police believed the Applicant was residing at 18-20 Paulander Drive;
[44] The Affiant’s belief that 18-20 Paulander Drive would contain electronic devices with information leading to the breaches or other evidence of the offences was also reasonable. The Court of Appeal’s decision in R. v. Clairoux, 2018 ONCA 629, upheld a warrant to search an accused’s home on a belief that electronic messages would likely be found there. The Affiant was not relying on a hunch, but credible evidence in coming to this belief.
[45] I conclude that It was open to the Justice to issue the warrant in these circumstances, and that decision is owed deference.
[46] The warrant was validly issued on the basis of the ITO. The search was authorized by law and was reasonable. There was no breach of the Applicant’s rights under s.8 of the Charter. There is therefore no Charter breach requiring consideration of the exclusion of the evidence on the Grant criteria pursuant to s.24(2).
M. Gibson. J.
Dated: July 23, 2021