COURT FILE NOS.: CR-20-07192, CR-20-07271, CR-20-07148, CR-20-07213, CR-20-07276

DATE: 20220904

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NOUR MARAKAH, CAYLA BUSBY-BROWN, JAVAN ARCHER-LYONS, JESSE CARRINGTON, DEVON MORRIS, and MARKUS HINDS

Defendants/Applicants

Sean Doyle and Ivana Denisov, for the Crown/Respondent

Wayne Cunningham, for the Defendant/Applicant, Nour Marakah

Owen Goddard and Madeleine Ross, for the Defendant/Applicant, Cayla Busby-Brown

Rick Frank, for the Defendant/Applicant, Javan Archer-Lyons

Eric Neubauer, for the Defendant/Applicant, Jesse Carrington

Owen Goddard acting as agent, for Alan Lobel counsel for Defendant/Applicant Markus Hinds

Victoria Palermo acting as agent for Robert Chartier, counsel for the Defendant/Applicant, Devon Morris

HEARD: June 13-15, 21-23, 27-29, 2022

REASONS FOR DECISION

CAMERON J.:

[1] Nour Marakah, Cayla Busby-Brown, Javan Archer-Lyons, Jesse Carrington, Devon Morris and Markus Hinds (the “Applicants”) are charged on five indictments stemming from a York Regional Police (“YRPS”) Part VI investigation dubbed “Project Stanley.” The Applicants submit that the Information to Obtain (“ITO”) the Part VI authorization contains violations that mandate excision. The Applicants allege numerous violations of section 8 of the Canadian Charter of Rights and Freedoms (the“Charter”) and that evidence obtained as a result of these unauthorized searches ought to be excluded under section 24(2) of the Charter.

Overview of the Investigation:

[2] The YRPS commenced an investigation following a violent home-invasion that occurred at [REDACTED] in the City of Vaughan on October 17, 2019. During the robbery, six residents of the home were awoken by the assailants and restrained with zip-ties. Two of the complainants were pistol-whipped. One of them was beaten into unconsciousness. Parts of the event were captured on a home-surveillance system installed on the second floor. Video surveillance from outside the home shows that four assailants armed with three handguns and construction tools forced entry into the residence.

[3] The assailants are believed to have had knowledge of the fact that twice a month large sums of money are kept in the residence. It appears that the assailants also had knowledge of the presence of a safe in the home as the evidence suggests they brought with them a pry bar and a grinder.

[4] The residents of the home described hearing what appeared to be the assailants communicating with each other and a potential look-out through a two-way radio. They heard what they believed to be a female voice on the other end of a two-way radio advising the assailants that they still had time to carry-out the robbery. Approximately $55,000 in mixed currency, jewelry, and cellular phones was taken from the home.

[5] When asked who may have done this, the homeowners identified two persons of interest, Shyara Seneviratne and Sohab Chaudhry. Both had ties to the complainants’ business and may have known the habits of the homeowners including the fact that they kept large sums of payroll cash in their home.

[6] Through reviewing video surveillance in the home, Detective Boulay, the Officer-in-Charge (“OIC”) of the investigation, identified a Stanley “Fat Max” pry bar as having been used in the robbery. He sourced this particular make and model of pry bar to a Home Depot store located in Whitby, Ontario. With the assistance of a Home Depot Loss Prevention Officer who downloaded thousands of transaction records for this type of pry bar, Detective Boulay learned that this type of pry bar was purchased on October 9, 2019 along with a Dewalt Grinder, and red Diablo grinder discs. Police believe that the grinder was used to try to gain entry to a safe in the residence. The safe bore red markings consistent with this theory. Once again, with the assistance of the Loss Prevention Officer at Home Depot, Detective Boulay reviewed downloaded video surveillance from the store. He pinpointed the transaction in question and obtained still images of the purchasers.

[7] Detective Boulay circulated a bulletin with these images throughout the police service. On October 30, 2019, Detective Constable Wray of Durham Regional Police Guns and Gangs Unit, identified the female suspect pictured within the Home Depot surveillance at the time of the purchase as Cayla Busby-Brown. Detective Constable Wray advised Detective Boulay that he followed Ms. Busby-Brown on her Instagram account under a false identity. Images from this account were used to confirm that Ms. Busby-Brown participated in the purchase of the items from Home Depot on October 9, 2019. Further, Detective Constable Wray advised that Ms. Busby-Brown had a black Mercedes sedan registered in her name.

[8] Detective Constable Wray also advised Detective Boulay that one of the male suspects from the bulletin was likely Ms. Busby-Brown’s boyfriend, and that his Instagram account was “strizzy_kastro”. An open source social media query identified Ms. Busby-Brown’s boyfriend as Nour Marakah. Mr. Marakah was identified as one of the males with Ms. Busby-Brown at the Home Depot when the items were purchased.

[9] Exterior video surveillance cameras from the residences surrounding the home at [REDACTED] captured three vehicles travelling in tandem from 11:44 p.m., on October 16,2019 casing the address until the time of the home invasion at 2:31 a.m. The suspicious vehicles were identified as a grey Volvo S60, a silver four door Acura EL, and a newer model dark sedan. The observed Volvo was consistent with a Volvo owned and operated by Mr. Archer-Lyons. Mr. Carrington had been observed driving a 2003 Silver Acura EL registered to his common-law partner. Ms. Busby-Brown owned a dark-coloured Mercedes sedan.

[10] Between October 30, 2019 and February 13, 2020 the YRPS obtained eight judicial authorizations for tower dump records, tracking warrants, transmission data recorders, and production orders related to the Applicants and other known individuals. Detective Smiley was the affiant who drafted and swore the ITOs for these eight judicial authorizations.

[11] Cellular Transmission Data obtained by the YRPS shows that on October 17, 2019 in the vicinity of the home invasion robbery, Mr. Marakah, Mr. Archer-Lyons and Mr. Carrington had a three-way conversation for approximately forty-one minutes immediately preceding and during the commission of the robbery. Ms. Busby-Brown’s phone was not in the vicinity of the robbery nor was she in communication with the others during this time using her cell phone.

[12] The YRPS also commenced an undercover operation into Ms. Busby-Brown and obtained authorization for a one-party consent interception on December 30, 2019.

[13] On November 19, 2019 Detective Boulay’s notes give an indication that a Part VI authorization was contemplated. On January 6, 2020 Detective Whyte was assigned to be the affiant. The first meeting between the undercover officer and Ms. Busby-Brown took place on January 8, 2020. A funding proposal for the Part VI operation was submitted by Detective Boulay on February 4, 2020.

[14] Finally, on February 13, 2020 the YRPS obtained a Part VI authorization to intercept the private communications of the Applicants and other known individuals. Detective Constable Whyte was the affiant on the Part VI ITO. Detective Boulay, as the OIC of the investigation, directed the investigative steps taken during the investigation and made determinations on what investigative steps were and were not taken to determine the investigative necessity of the Part VI application.

[15] Five sets of charges arose from this investigation. Mr. Marakah, Mr. Archer-Lyons and Mr. Carrington were charged with the October 17, 2019 home invasion robbery at [REDACTED] in Vaughan, Ontario. As a result of evidence gathered after the issuance of the Part VI authorization, Mr. Marakah, Mr. Carrington, Mr. Hinds and Mr. Morris were charged with conspiracy to commit robbery and firearms offences in relation to the planning of a robbery of an individual at the MARS recording studio in Etobicoke. Mr. Carrington and Mr. Hinds were charged with conspiracy to traffic a firearm and trafficking a firearm between March 19 and 24, 2020. Ms. Busby-Brown and Mr. Marakah were charged with trafficking a firearm and possession of a firearm on March 20, 2020. Mr. Archer-Lyons was charged with possession of a firearm and narcotics between April 5 and May 13, 2020.

[16] The Applicants seek exclusion of the information obtained from Home Depot, Ms. Busby-Brown’s private Instagram account, the Initial Authorizations (including historic transmission and tracking data for Mr. Marakah, Mr. Carrington and Mr. Archer-Lyons), and the private communications seized pursuant to the Part VI authorization. The Applicants submit that the admission of this evidence would bring the administration of justice into disrepute.

The Authorizations:

[17] The following table provides a summary of the applications (all of which were ultimately granted) leading up to the Part VI in February, 2021:

Date

Authorizations Sought

Targets

Oct. 30, 2019

Tracking Warrant

Ms. Busby-Brown

Nov. 5, 2019

TDR Warrant, Tracking Warrant, Production Orders for phone records (x3); Production Order to Trace Communications

Ms. Busby-Brown

Nov. 14, 2019

Tracking Warrants (x2)

Mr. Archer-Lyons

Nov. 20, 2019

TDR Warrant, Tracking Warrant, Production Orders for phone records (x3)

Mr. Marakah

Dec. 24, 2019

One Party Consent; TDR Warrants, Tracking Warrants and Extensions, Production Order for phone records

Ms. Busby-Brown, Mr. Archer-Lyons, Mr. Carrington, Mr. Ryan Lee

Jan. 8, 2020

Extensions

Ms. Busby-Brown, Mr. Marakah, Mr. Archer-Lyons

Jan. 21, 2021

TDR Warrant (x2), Tracking Warrant (x2)

Mr. Carrington, Ms. Patricia Giannone

Feb. 5, 2021

TDR Warrants, Tracking Warrants, Production Orders for phone records

Mr. Lee, Mr. Jason Johnson, Mr. Carrington, Mr. Archer-Lyons

Feb. 11, 2021

Part VI Authorization

Mr. Marakah, Ms. Busby-Brown, Mr. Lee, Mr. Archer-Lyons, Mr. Carrington, Ms. Kamika Isaacs

[18] The Initial Authorizations are closely related, and build off each other. Applications one and two related to Ms. Busby-Brown and were for tracking warrants on her car and phone, transmission data relating to incoming and outgoing communications on her cell phone, production orders relating to her subscriber information and call history, and a production order for cell tower data from all four of the major cellphone service providers in the Greater Toronto Area.

[19] The grounds in the ITO for these two applications that linked Ms. Busby-Brown to the robbery were the Home Depot surveillance footage of the pry bar purchase and the identification of Ms. Busby-Brown by Detective Constable Wray on Instagram.

[20] The production order for the cell “tower dump” data was issued pursuant to s. 487.015. The ITO stated that the purpose for seeking this authorization was to determine “whether or not Ms. Busby-Brown’s cellular phone transmitted or received a text or voice communication in the area of [REDACTED], prior to, during and after the home invasion.” Police sought and were granted a production order for data from all cellphone phone towers in the area of [REDACTED] over a three hour and 23 minute period from 11:44 p.m. on October 16, 2019 to 3:07 a.m. on October 17, 2019.

[21] The third application sought tracking warrants on two cars used by Mr. Archer-Lyons. Mr. Archer-Lyons was identified while the YRPS conducted surveillance with the assistance of the tracking warrant related to Ms. Busby-Brown. The police saw Ms. Busby-Brown and Mr. Marakah with Mr. Archer-Lyons and determined that Mr. Archer-Lyons drove a grey Volvo S60. They believed the vehicle was consistent with one of the cars seen on the surveillance footage from outside [REDACTED]. The grounds in the ITO that implicated Mr. Archer-Lyons were Ms. Busby-Brown and Mr. Marakah’s purchase at Home Depot; their association with Mr. Archer-Lyons; and his ownership of a grey Volvo S60 similar to the vehicle captured on surveillance.

[22] The fourth application was for a tracking warrant on Mr. Marakah’s cell phone, a transmission data recorder warrant for incoming and outgoing phone communications on his cell phone, and three production orders relating to his cell phone records. The production orders sought subscriber information, as well as historical transmission data and tracking data for the period of October 8, 2019 to October 10, 2019 and October 16, 2019 to October 18, 2019. Again, the ITO relied heavily on the Home Depot footage and the identification of Ms. Busby-Brown and Mr. Marakah to provide grounds for the warrants.

[23] The fifth application sought several different warrants, including a one-party consent authorization to record conversations between an undercover officer and Ms. Busby-Brown; tracking warrants for the cellphones and vehicles of Mr. Archer-Lyons, Mr. Jesse Carrington, and Mr. Ryan Lee; and production orders relating to their cellphone records. The ITO again relied on the Home Depot footage and the identification of Ms. Busby-Brown and Mr. Marakah. It also relied extensively on the results of the cell tower data (received pursuant to the second judicial authorization), which showed that cell phone numbers associated to Mr. Marakah, Mr. Archer-Lyons and Mr. Carrington had used cell towers in the vicinity of [REDACTED] at the time of the robbery.

[24] The sixth application sought to extend various tracking and transmission data recorder warrants previously authorized in relation to Ms. Busby-Brown, Mr. Marakah and Mr. Archer-Lyons. Mr. Lee was initially charged with the robbery at [REDACTED], but those charges were dropped.

[25] The seventh application sought tracking and data transmission recorder warrants against a second phone that allegedly belonged to Mr. Carrington, as well as a cell phone belonging to Patricia Giannone, Mr. Carrington’s common law spouse.

[26] The eighth application sought a production order for subscriber information and historical transmission data on cellphones that were believed to belong to Mr. Carrington and Mr. Archer-Lyons.

[27] The police were granted a Part VI authorization on February 13, 2020. The application sought authorization to intercept the communications of Mr. Marakah, Ms. Busby-Brown, Mr. Archer-Lyons, Mr. Lee, Mr. Carrington, Ms. Giannone and Ms. Isaacs through wiretaps and the installation of audio probes. Mr. Hinds was listed as an “other known person.” Mr. Carrington’s historic phone data showed that Mr. Hinds had eight phone calls with Mr. Carrington on October 17, 2019 around the time of the robbery.

[28] The individualized grounds for belief set out in relation to each of the proposed targets relied heavily on a combination of the Home Depot footage, the social media identifications, the results from the tower dump production orders obtained as part of the second authorization and the historic transmission data obtained for each individual.

[29] Three of the proposed targets of the authorization were girlfriends or spouses of other named targets: Ms. Busby-Brown, Ms. Giannone, and Ms. Isaacs. In relation to these three targets, the ITO set out a basis for believing there were reasonable grounds that the authorization would afford evidence relating to the home invasion. The issuing Justice declined to authorize the interception of communications with respect to Ms. Giannone.

[30] In relation to Ms. Busby-Brown only, the ITO omitted any reference to the tower dump returns or historical tracking data. In particular, the ITO did not set out that Ms. Busby-Brown: i) had no contact with any of the suspects at the time of the home invasion; ii) had no contact with any of the suspects during an alleged “casing” of the property that took place several days prior to the home invasion; and iii) that the cell tower dump or historical tracking data did not afford any evidence that Ms. Busby-Brown had ever been in the vicinity of [REDACTED].

[31] The affidavit claimed that the Part VI authorization was necessary to obtain “clear and compelling evidence” against known and unknown suspects; identify how each party to the offence participated in the planning; and seize property associated to the commission of the offence.

[32] On March 18, 2020, the police applied to expand and extend the Part VI authorization. The application sought to add Markus Hinds and Darryl O’Neil Parker as principal known persons, on the grounds that they had been heard on the wires conspiring to commit an unrelated robbery. Mr. Morris was added as an “other known person” due to his association with Mr. Carrington.

[33] The police seized thousands of communications from the Applicants as a result of the Part VI authorizations. These communications form the basis for the following charges:

i) robbery charges related to an attempted robbery at Mars Studios against Mr. Marakah, Mr. Carrington, Mr. Hinds and Mr. Morris;

ii) firearms trafficking offences against Mr. Marakah and Ms. Busby-Brown;

iii) separate firearms trafficking offences against Mr. Hinds and Mr. Carrington; and

iv) separate firearms trafficking offences against Mr. Archer-Lyons. These charges are part of a related undercover investigation (Project “Arches”).

[34] There were several search warrants issued after the Part VI authorization and extension. On March 24, 2020, the police obtained search warrants for the residences of Ms. Busby-Brown, Mr. Marakah, Mr. Lee and Mr. Archer-Lyons. In April 2021 search warrants were issued for Mr. Marakah’s and Mr. Carrington’s cell phones that were seized during the investigation.

The Issues:

[35] The Applicants contend that the YRPS violated s. 8 of the Charter in the following ways:

i) The YRPS seized transaction records and CCTV footage from Home Depot without authorization;

ii) Detective Wray unlawfully accessed Ms. Busby-Brown’s Instagram account;

iii) The authorization for the tower dump did not meet the statutory preconditions under s. 487.015 of the Criminal Code as it was not minimally intrusive;

iv) The subscriber query on Mr. Carrington’s number from the tower dump records was unauthorized;

v) The Part VI ITO failed to establish investigative necessity;

vi) After excision of any of the unlawfully obtained and derivative evidence from the ITO’s, there was insufficient information for any of the Initial Authorizations or the Part VI authorization to issue;

vii) The affiant for the Part VI authorization failed to make full, fair and frank disclosure related to Ms. Busby-Brown. There was no basis to intercept private communications inside her vehicle;

viii) The search of Mr. Marakah’s home and cell phones violated his section 8 rights; and

ix) The search of Mr. Carrington’s cell phone violated his rights.[^1]

The Home Depot and Instagram Records:

The Evidence:

[36] Detective Boulay testified that having reviewed surveillance footage from [REDACTED], he was able to observe a pry bar hanging on the railing of the stairs on the second floor of the home. He determined that this was a Stanley “Fat Max” pry bar. He attended several retail stores trying to determine if they sold that type of pry bar. Ultimately, he determined that Home Depot sold that brand of pry bar with the same colourings and markings. On October 22, 2019 Detective Boulay contacted Mr. Wayne King who works for Home Depot as a loss prevention investigator. Mr. King’s job is to investigate criminal offences, specifically organized retail crimes. Detective Boulay asked Mr. King to provide him with records of sales for that specific type of pry bar for a period of six months leading up to the robbery.

[37] The first batch of records provided to Detective Boulay by Mr. King included 2,400 entries. Detective Boulay realized on receipt of these records that they were not for the specific pry bar used in the robbery. The correct specifications were then provided to Mr. King. Mr. King recovered 430 records relating to this pry bar. He reviewed the records from October 9, 2019 to the day of the robbery October 17, 2019. One entry for a cash purchase of a pry bar on October 9, 2019 became of interest. Along with the pry bar, the purchaser had bought a Dewalt grinder and Diablo grinder discs. Mr. King provided Detective Boulay with the receipt for this transaction as well as video footage and still images of the people making the purchase.

[38] Detective Boulay created a bulletin with the images of the purchasers, a female and two males. He distributed this bulletin to police agencies in hopes of anyone recognizing them.

[39] Wayne King testified that he was a retired Toronto Police officer. It was his belief that he had a moral obligation to help the police investigate crime. He would rarely ask for the police to produce judicial authorization when providing store records. He would only do so if the person requesting the records was rude.

[40] Detective Constable Wray testified that through the years 2010 to 2014 he was working in uniform patrol in Whitby. In the course of his employment, he was asked to attend the home of Ms. Busby-Brown several times. Each time he attended the home it was due to a complaint about Ms. Busby-Brown’s father either as a result of his drinking or mental health issues. On one of these occasions Ms. Busby-Brown was present. Detective Constable Wray testified that he recalls Ms. Busby-Brown’s father lamenting to him that Ms. Busby-Brown associated with criminals. It was for this reason that he decided to proactively keep tabs on her by following her on her Instagram account under a false identity in 2014 when he started in the Community Resource Unit (“CRU”).

[41] Detective Constable Wray testified that when he began following Ms. Busby-Brown under a false identity, her account was public. That meant that she did not have to approve him as a follower. When Detective Constable Wray got Detective Boulay’s bulletin with the images from Home Depot attached, he recognized the female as Ms. Busby-Brown. He did not remember what she looked like from having seen her years prior in person on one occasion but by seeing her images from Instagram over the years. Once he got the bulletin, he looked at her account again. This verified his belief that the woman from the Home Depot surveillance was Ms. Busby-Brown. Detective Constable Wray believed that the man in the Home Depot footage was the boyfriend of Ms. Busby-Brown that he had seen in images on her Instagram page. This turned out to be Nour Marakah. Mr. Marakah’s Instagram page was public. Detective Constable Wray passed on this information to Detective Boulay on October 19, 2019.

[42] Detective Constable Wray agreed in cross-examination that by October 30, 2019 Ms. Busby-Brown’s account was private. He testified that having previously followed her account while it was public, he still had access to it after she made it private. Detective Constable Wray did not keep notes of his periodic checks on Ms. Busby-Brown’s Instagram account. As her follower, stories and pictures posted by her would regularly appear on the Instagram feed of his false account.

[43] Cayla Busby-Brown testified that she now has two Instagram accounts, one personal and one linked to her business. At the time of the investigation, she only had a personal account. The Instagram account linked to her hairstyling business is public. She does not post personal photos or information on that account. Her personal account is private. This means that if someone wants to follow her account and gain access to her photos and stories, she has to accept their request to follow her. It was Ms. Busby-Brown’s evidence that if her account was ever public, it was only public very briefly after she set up the account. It was her evidence that she is selective about who she approves to follow her. She only approves people she has actually met or has some connection with. In 2019 she had 1,500 followers. She agreed that if someone followed her account while it was briefly public, and then she made the account private, they would not have to request to follow her again, nor would they be denied access to her account.

The Position of the Parties:

[44] The parties agree that if the searches of Home Depot and Instagram are deemed unlawful and that information is excised from the authorizations, none of them could have been issued.

[45] The Applicants submit that the search of the Home Depot records breached their section 8 Charter rights. In order to advance this argument, the Applicants submit that they have a reasonable expectation of privacy in both the transaction records and the video surveillance from the store. If Mr. Marakah and Ms. Busby-Brown have standing to bring this motion, the Applicants submit that this was an unauthorized search that necessarily breached their section 8 rights. This evidence ought to be excised from the authorizations. It should be excluded from trial pursuant to s. 24(2) of the Charter.

[46] The Crown submits that the parties do not have standing to challenge the search of the Home Depot records. If a reasonable expectation of privacy existed, the searches were nonetheless reasonable.

[47] The Applicants submit that Ms. Busby-Brown had a reasonable expectation of privacy in her Instagram account. Her reasonable expectation of privacy was breached by Detective Constable Wray gaining access to her account for years for no investigative purpose. This evidence ought to be excised from the authorizations. It should be excluded from trial pursuant to s. 24(2) of the Charter.

[48] The Crown submits that Ms. Busby-Brown did not have a reasonable expectation of privacy in her account. I should accept Detective Constable Wray’s testimony that when he began to follow her the account was open. Even if this were not the case, with 1,500 followers, Ms. Busby-Brown was not discerning about who she accepted as followers or what information they had at their disposal and therefore had no reasonable expectation of privacy.

The Law:

[49] Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search or seizure.” This must be interpreted in two stages.

(1) The Applicants must show that they had a reasonable expectation of privacy in the subject matter of the search; and

(2) The Applicants must show that the search or seizure was unreasonable.

See R. v. Jones, 2017 SCC 60 at para. 11, R. v. Cole, 2012 SCC 53 at para. 34, R. v. Tessling, 2004 SCC 67 at para 18, and R. v. Collins, [1987] 1. S.C.R. 265.

[50] In assessing whether a reasonable expectation of privacy exists, the Court must look at the totality of circumstances, weighing and considering a number of interrelated factors. These include factors related to the nature of the privacy interests implicated by the state action and factors more directly concerned with both the subjective and objective expectation of privacy in relation to those interests. See R. v. Spencer, 2014 SCC 43, [2014] SCJ No. 43 at para. 17, Tessling, supra at para. 38, and R. v. Ward, 2012 ONCA 660 at para 65. An analysis of reasonable expectation of privacy involves a consideration of:

(1) the subject matter of the alleged search;

(2) the Applicant’s interest in the subject matter;

(3) the Applicant’s subjective expectation of privacy in the subject matter; and

(4) whether this subjective expectation of privacy was objectively reasonable having regard to the totality of the circumstances.

See Spencer, supra at para. 18, Tessling, supra at para. 32, R. v. Patrick, 2009 SCC 17 at para. 27, and R. v. Cole, 2012 SCC 53 at para. 40.

[51] The reasonable expectation of privacy standard is normative rather than simply descriptive. As stated by the Court in Patrick at para. 14, while live to the specific facts, the analysis must consider “the independent perspective of the reasonable and informed person who is concerned about the long-term consequences of government action for the protection of privacy.” See also Jones, supra at para. 20, Tessling, supra at para. 42, Spencer, supra at para. 18, R. v. Gomboc, 2010 SCC 55 at para. 34 and Ward, supra at paras. 81-85.

[52] The subject matter of the search attracting the protection of s. 8 of the Charter includes “a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state.” This includes information which tends to reveal intimate details of the lifestyle and personal choices of the individual. See R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 SCR 281 at para. 20, and Spencer, supra at paras 27-31. Where the information sought supports inferences in relation to other personal information, this must be considered when characterizing the subject matter of the search. See Spencer, supra at para. 31. As stated by Doherty J.A. in Ward at para. 65, when identifying the subject matter of an alleged search, the court must not do so "narrowly in terms of the physical acts involved or the physical space invaded, but rather by reference to the nature of the privacy interests potentially compromised by the state action”.

[53] A person does not lose control of information for the purpose of section 8 of the Charter simply because another person has access to or also possesses it. Accepting the risk that someone else may disclose an image or a text conversation is not accepting the risk that it will be provided to the police. See R. v. Marakah, 2017 SCC 59, [2017] 2 SCR 608 at para. 41; R. v. Cole, supra and R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 SCR 30 at pp. 44 and 51.

Analysis – the Home Depot Records:

[54] Discovering who, when and where the pry bar was purchased was akin to a search for the proverbial needle in a haystack. Detective Boulay, by attending various retailers, was able to determine that Home Depot was one of a few retail chains that sold this type of pry bar. It is from there that he reached out to Mr. King to narrow his search.

[55] On October 22, 2019 Detective Boulay sent an e-mail to Wayne King asking him for records related to the purchase of a Stanley “Fat Max” pry bar that was at least 36” in length purchased at any Home Depot store in the previous six months. He sent a photo of the specific pry bar he was interested in. Mr. King replied that he was willing to help but asked that Detective Boulay narrow down the geographic region in which he was being asked to search. Detective Boulay indicated that given the lack of suspects it would be difficult to narrow it down. He asked Mr. King to start with Peel, York, Toronto, Durham, Halton, Barrie, South Simcoe and Hamilton. Mr. King also asked for the offence date.

[56] Mr. King sent the results of his initial search to Detective Boulay. The return of the query made by Mr. King involved 2,400 purchases. The information provided included the store number, store location, date of transaction, type of transaction, register number, transaction number, cashier number and the amount paid by the customer. The query did not return customer names, addresses, credit card numbers or any other personal identifiers. When this information was provided to Detective Boulay, he realized that the query made by Wayne King was for the wrong size of pry bar. He clarified his request to Mr. King. The subsequent query returned 430 records of purchases of the specific make, model and size of pry bar used in the home invasion robbery. Mr. King expressed concern about the length of time it would take to further investigate each purchase. He worked backwards from the date of the offence, October 17, to October 9, 2019. There were 66 records in this time frame. Mr. King was able to review these records to see what else was purchased with the pry bar. Once again, these records did not include any personal identifiers of the purchasers. In addition to the information listed above, the records included what else was purchased with the pry bar. Detective Boulay concluded that three purchases, based on the items purchased with the pry bar, warranted further investigation. Two of the purchases were ruled out based on further clarification as to what the other items purchased were. That left one transaction record.

[57] This transaction record reported: the store number, the store location (Whitby, Ontario), the items purchased (a grinder, grinder discs and pry bar), the date purchased (October 9, 2019), the time of the purchase (19:32 hours); the cashier number (self-checkout) and the fact that the items were paid for with cash.

[58] None of the transaction records provided by Mr. King to Detective Boulay contained names, addresses or credit card numbers of Home Depot customers. Having pinpointed the specific transaction of interest, the video surveillance related to the cash register at the Whitby Home Depot at 19:32 hours was downloaded by Mr. King and provided to Detective Boulay. Ms. Busby-Brown and Mr. Marakah are captured on this video.

[59] The subject matter of the search was the records related to the purchase of the same type of Stanley “Fat Max” pry bar used in the commission of the home invasion robbery. This included the transaction record of the purchase of the pry bar and the video surveillance specific to that purchase.

[60] Home Depot stores, including the Whitby location where the pry bar was purchased have video surveillance to prevent theft of merchandise and to provide evidence to law enforcement to prosecute those who steal. Signs to this effect are clearly posted throughout the store. Home Depot also has a privacy statement posted on their website. The privacy statement includes the practices of the corporation with respect to the collected information of those who visit the store. The policy states that images of customers are captured “to prevent or detect fraud and to promote security.” The policy outlines to whom information gathered by the store is shared and the reasons why it is shared. Presumably this includes transaction records and video surveillance. The policy states that information may be shared if the corporation is obliged to share it “in order to comply with the law” including where the company is required to provide information in response to a court order or where required by law. The policy also indicates that information is shared to protect the company. It states: “For example, we may disclose information if we suspect fraud. We may also share information as part of an investigation. We may also disclose personal information to assist us in collecting a debt owed by you.” The privacy statement is not posted in the stores.

[61] The signs posted in all Home Depot stores state: “Closed circuit television cameras are in use to help provide you with low prices. Recordings will be used in the prosecution of criminal offences.”

[62] The Crown relies on Justice Dawson’s decision in R. v. Merritt, 2017 ONSC 366. Justice Dawson held that the accused did not have a reasonable expectation of privacy in images of himself purchasing shoes from Walmart. At paragraph 98, Justice Dawson reasoned that the video did not show the accused doing anything of a private or revealing nature. The police were not trying to use what can be seen on the video to look into a more private space like a home, hotel room or backpack. Justice Dawson distinguished the search in this case from Spencer where the police had a significant amount of information about internet activity which revealed a great deal about personal preferences and choices and just needed a link to tie that highly personal information to a person.

[63] The Applicants submit that the decision in Merritt, is wrong. Relying on Patrick at para. 14 they submit that the reasonable expectation of privacy standard is normative rather than simply descriptive. The analysis must consider potential consequences on the protection of privacy if law enforcement can search without a warrant the particulars of any purchase made at a retail store.

[64] The Applicants submit that because the reasonable expectation of privacy standard is normative rather than simply descriptive, my analysis must not only consider the specific subject matter of the search in this case, but the potential for breaches of privacy of any similar search in any retail store. The Court in Patrick held that items found inside a garbage bag could reveal intimate details of one’s daily life for which they would have a reasonable expectation of privacy. The Applicants submit that similarly a search of retail purchases could disclose medications or other items that reveal intimate details of lifestyle or personal choices.

[65] I agree with the Applicants that the reasonable expectation of privacy standard is normative. However, I do not accept their submission that if I decide the Applicants did not have a reasonable expectation of privacy in the purchase of items in this case, I would be finding that one could never have a reasonable expectation of privacy in any retail purchase. I must consider the totality of circumstances related to the nature of the privacy interests implicated by the state action and factors more directly concerned with both the subjective and objective expectation of privacy in relation to those interests.

[66] In R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, the Supreme Court of Canada, at pages 62 and 63, held that although a hotel room would in most cases be a place where one has a reasonable expectation of privacy, given the particular facts of that case, by turning the hotel room into a public gaming house, the accused had conducted themselves in a way that was inconsistent with the customary expectation of privacy that an independent and informed observer would reasonably expect in a closed hotel room.

[67] In Tessling at paras. 28-29, the Court stated that the decision about where to draw the line in relation to a reasonable expectation of privacy should focus on the nature and quality of the information that was actually obtained by the police, not the theoretical.

[68] In my view, there could be retail purchases that attract a reasonable expectation of privacy. However, the specific transaction record which included: the store number, the store location (Whitby, Ontario), the items purchased (a grinder, grinder discs and pry bar), the date purchased (October 9, 2019), the time of the purchase (19:32 hours); the cashier number (self-checkout) and the fact that the items were paid for with cash, does not attract a reasonable expectation of privacy. It contained no personal identifiers or the type of information related to ones “biographical core.”

[69] The Applicants clearly have an interest in their images. They seek to establish a subjective expectation of privacy in this subject matter inferentially and by relying on the Crown’s theory of the case. In order to find that they had a subjective expectation of privacy in the Home Depot records, I must find that they would have expected this information to have remained private. It is difficult to accept this position given the fact that signs posted clearly and at various locations throughout the Home Depot store advise them that video cameras are recording them.

[70] Unlike the internet activity which was the subject matter of the search in Spencer, the transaction records and video contain nothing that could tend to reveal intimate details of their lifestyle or personal choices. The purchase of construction tools is completely innocuous.

[71] The Applicants’ subjective expectation of privacy in the records must be objectively reasonable to engage section 8. Some of the most relevant considerations are: the place where the search occurred, the private nature of the subject matter, whether the content of the records revealed details of the Applicants’ lifestyle or information of a biographic nature, and control over the subject matter. See Marakah, supra at para. 24, Cole, supra at para 45 and Tessling, supra at para. 32.

[72] The place searched was a Home Depot store. This is a public place. Whether or not there are video cameras taking recordings, any member of the public including law enforcement or staff of the store can observe one’s actions in the store including the items being purchased. Whenever a purchase is made, a record of that transaction is created and held by the store. This is known to all customers who make purchases. Unlike a home, a computer or a cell phone that contain very private information, information that is in public view is at the other end of the privacy spectrum. Commercial records kept by a third party in the ordinary course have a significantly reduced expectation of privacy. See R. v. Mahmood, 2011 ONCA 693 at para. 137 (in relation to subscriber records).

[73] The information that is the subject of the search in this case is records of purchases from a public hardware store. As I have already stated, the transaction records and video contain nothing that could tend to reveal intimate details of the Applicants’ lifestyle or personal choices. The purchase of construction tools is completely innocuous. The records of purchases of that type of pry bar gave information about the store and the timing of the purchase, but no personal identifiers of the customers.

[74] It is clear that the Applicants had no control over the subject matter. The information gathered was all in the control and possession of Home Depot. Unlike Spencer, where the link to the subscriber information revealed who was related to the internet activity known about which contained personal information, or Marakah where the subject matter was text messages between friends, the subject matter of the search was information about the purchase of a pry bar from a public place where the Applicants were advised they were being recorded, where they knew the store would retain a record of the purchase and where the records contained nothing revealing their lifestyle or personal choices.

[75] I find that even if the Applicants had a subjective expectation of privacy, this was not objectively reasonable.

[76] Having considered the totality of circumstances and weighed the factors related to the nature of the privacy interests implicated by the actions of the police and both the subjective and objective expectation of privacy in relation to those interests, I find that the Applicants did not have a reasonable expectation of privacy in the records provided to the police by Home Depot without judicial authorization. Therefore, they do not have standing to challenge the validity of the search. The information from Home Depot will not be excised from the ITO. The evidence is admissible at trial.

Analysis – Instagram:

[77] Detective Constable Wray testified that when he began following Ms. Busby-Brown under an alias, her Instagram account was public. Ms. Busby-Brown testified that but for a very brief period of time when it was set up, her account has always been private. The Applicants ask that I find Detective Constable Wray lacked credibility and to accept the evidence of Ms. Busby-Brown on this point. Counsel for Ms. Busby-Brown submits that Detective Constable Wray was not truthful when he asserted that Ms. Busby-Brown’s father lamented about her criminal associates. This fact was recalled at least eight years after his last interaction with Ms. Busby-Brown’s father. I did not find Detective Constable Wray to be a reliable witness. It is difficult to understand how he could remember this conversation eight years later. I accept Ms. Busby-Brown’s evidence that her account was almost always private. Therefore, she must have either purposely or inadvertently allowed Detective Constable Wray’s false account to follow her.

[78] The Applicants submit that Ms. Busby-Brown had a reasonable expectation of privacy in her Instagram account. The Crown concedes that Ms. Busby-Brown has in interest in the subject matter of the search but that she did not subjectively have a reasonable expectation of privacy. If I find that she had a subjective reasonable expectation of privacy, it was not objectively reasonable.

[79] Ms. Busby-Brown testified that she set her account to “private”, meaning she would have to allow other accounts to follow her. By following her, people would have access to the pictures, stories and posts she put on her account. Ms. Busby-Brown agreed that anyone who had access to her pictures, stories and posts could take a screen capture of them, re-post them on their own account, save them and distribute them to whoever they wished including law enforcement. In addition to having to physically accept a follower by clicking a tab on the account, Ms. Busby-Brown agreed that she would then get a notification that this new account was following hers. In 2019, it is undisputed that Ms. Busby-Brown had 1,500 followers. She testified that she believed she had a personal connection with all of them. She must have inadvertently accepted the request from the account created by Detective Constable Wray. Ms. Busby-Brown testified that at times she would remove followers who posted content she didn’t like and followers who she had lost touch with. This means that from time to time she would cull her list of followers.

[80] I accept the position of the Applicants that Ms. Busby-Brown had a subjective reasonable expectation of privacy in her personal Instagram account. Her account was set to private which is demonstrative of her belief that she controlled, at least to some extent, who could see the information on her account. A subjective expectation of privacy is not a high standard. See R. v. Jones, 2017 SCC 60, [2017] SCJ No. 60 at paras. 20-21 and Patrick, supra at para. 37.

[81] The Crown relies on two cases in support of the assertion that Ms. Busby-Brown’s subjective expectation of privacy was not objectively reasonable. Neither of them are binding on me. In R. v. Ansah, 2021 ONSC 225, while investigating an accused for gun possession, an officer began following the Instagram account of the accused under a covert identity. Justice Baltman determined that the Applicant did not have an objectively reasonable subjective expectation of privacy in his Instagram account. Justice Baltman held at para. 148 that when the accused accepted the person unknown to him as a follower, he waived any expectation of privacy he might have had in the contents of his account. By communicating with a person he had never met before, the accused opened himself up to the risk that the other person was a police officer.

[82] In R. v. Adan et al., Justice Bawden held that there was no subjective expectation of privacy in the private Instagram accounts of five accused followed by undercover officers. Justice Bawden outlined four factors that may lead to an Instagram account attracting a reasonable expectation of privacy. They are:

i. if the account could only be accessed by a small number of followers;

ii. if the account holder would have to identify prospective followers by reliable means before permitting them to access the account;

iii. if the account holder had the assurance of anyone who followed the account that the contents would be kept strictly private and not shared with anyone outside of the group; and

iv. if there was evidence of a relationship of trust between the account holder and the followers such that the account holder could reasonably rely on the followers not to share the content.

[83] The Supreme Court of Canada in R. v. Duarte, 1990 CanLII 150 (SCC), [1990] SCJ No. 2 held at para. 32 that “no justification for the arbitrary exercise of state power can be made to rest on the simple fact that persons often prove to be poor judges of whom to trust when divulging confidences or on the fact that the risk of divulgation is a given in the decision to speak to another human being.”

[84] In Marakah at para. 40, the Court seemingly rejected the notion that the risk of disclosure could be used to justify a finding that a person lacked a reasonable expectation of privacy stating, “to accept the risk that a co-conversationalist could disclose an electronic conversation is not to accept the risk of a different order that the state will intrude upon an electronic conversation absent disclosure.” Mr. Marakah, in that case, had texted one person who was a trusted friend. The Court went on to express reservation as to whether there could be an expectation of privacy in information posted to social media. Chief Justice McLachlan stated at para. 55:

I conclude that in this case, Mr. Marakah had standing under s. 8 of the Charter. This is not to say, however, that every communication occurring through an electronic medium will attract a reasonable expectation of privacy and hence grant an accused standing to make arguments regarding s. 8 protection. This case does not concern, for example, messages posted on social media, conversations occurring in crowded Internet chat rooms, or comments posted on online message boards. On the facts of this case, Mr. Marakah had a reasonable expectation of privacy in the electronic conversation accessed through Mr. Winchester’s device; different facts may well lead to a different result.

[85] Ms. Busby-Brown had 1,500 followers in October 2019. She testified that each follower had a personal connection to her and that she would only accept people she knew in some way. I find this difficult to accept for a number of reasons. First, Detective Constable Wray was not posing as someone Ms. Busby-Brown knew. Clearly, at least on this one occasion, Ms. Busby-Brown accepted a follower she had no connection with. Second, if I accept Ms. Busby-Brown’s evidence that she would periodically cull her list of followers and remove anyone who she had lost touch with, it is difficult to understand why in October 2019 the account of at least this one unknown follower was not removed. Third, Ms. Busby-Brown testified that she must have accidentally accepted Detective Constable Wray’s request. If she were as scrutinous as she claims to be, she would have seen the notification about her new follower and removed him. Fourth, Ms. Busby-Brown’s evidence was that she would meet a person perhaps only once at a bar and then allow them to follow her account. This is difficult to reconcile with her position on this application that she was very much concerned about who had access to the very personal information on her account. The logical explanation for the fact that a stranger was following her account in October 2019 is that Ms. Busby-Brown was not selective at that time as to who she allowed to follow her and did allow people she did not know to access her account.

[86] Ms. Busby-Brown testified that she trusted her 1,500 followers to not share her information but never actually asked them not to. Ms. Busby-Brown testified that if she found out someone was sharing her information without her permission, she would remove them from her account. This, of course, would be too late. Instagram is admitted by the parties to be a platform on which users share information such as photographs, videos and posts that reveal the user’s image, images of the user’s family and friends, the user’s whereabouts, vacations, habits and other highly personal information. This information is put on a social media platform for the express purpose of sharing with others. Once the information is put on the social media platform and, in Ms. Busby-Brown’s case, shared with over a thousand people, control over this highly personal information is lost. As the Court stated in Marakah, at para. 30, “[t]he question always comes back to what the individual, in all of the circumstances, should reasonably have expected”. Ms. Busby-Brown knew that she had no control over what happened to her personal information once she posted it. I appreciate the argument of the Applicants that there is no exact number of followers that tips the scales in favour of a reasonable expectation of privacy, but 1,500 followers has to be near the end of the spectrum that garners in favour of a finding that objectively one has lost a reasonable expectation of privacy in their social media account.

[87] Therefore, I find that Ms. Busby-Brown’s subjective expectation of privacy was not objectively reasonable. She does not have standing to bring this application. The information from Instagram will not be excised from the ITO. It will be admissible at trial.

The “Tower Dump” Authorization and Subsequent Subscriber Query:

The Issues:

[88] The Applicants raise three issues.

1. The ITO to obtain tower dump records did not meet the statutory preconditions of s. 487.015 of the Criminal Code;

2. The ITO to obtain tower dump records relied on speculative information about the assailants’ use of cell phones during the robbery; and

3. The query for subscriber information for the number associating with Mr. Marakah and Mr. Archer-Lyons during the robbery was unauthorized.

The Evidence:

[89] Detective Boulay testified that on November 14, 2019 he obtained authorization pursuant to s. 487.015 of the Criminal Code for records of phone numbers connecting to cell phone towers within the vicinity of the home invasion robbery before, during and after its commission. These are referred to as the “tower dump records”. This particular authorization did not include authorization for the police to obtain subscriber information for those numbers. The ITO for this authorization was sworn by Detective Smiley. In addition to the s. 487.015 order, the ITO contained requests for six other authorizations.

[90] Detective Boulay testified that he also obtained an authorization on November 22, 2019 for Mr. Marakah’s historical phone records as well as a transmission data recorder warrant to gather information about which phone numbers were communicating with Mr. Marakah’s phone. The authorization also included the subscriber information for those phone numbers.

[91] The tower dump records were received on December 17, 2019. A civilian member of the YRPS, analyst David Tomlin, was tasked by Detective Boulay to review and analyze them. Prior to conducting this analysis, investigators knew that Mr. Marakah and Mr. Archer-Lyons had been in communication during the time of the robbery in the vicinity of the home. Having reviewed the tower dump records, Mr. Tomlin learned that a third number was also in contact with Mr. Marakah while he was on the call with Mr. Archer-Lyons. This led to the conclusion that Mr. Marakah, Mr. Archer-Lyons and a third unknown person were on a three-way call for forty mintues during the time of the robbery in the vicinity of the home.

[92] As the tower dump authorization did not allow for the investigators to obtain subscriber information for this number, Mr. Tomlin asked Detective Boulay if there was any other authority for obtaining this information. Detective Boulay advised Mr. Tomlin that the November 22, 2019 authorization for Mr. Marakah’s historical records granted them authorization to query this third unknown number for subscriber information. Mr. Tomlin made the inquiry and learned that the third unknown number was registered to Mr. Carrington. The historical records of Mr. Marakah were received three days later on December 20, 2019.

[93] The query made by Mr. Tomlin was to a Freedom Mobile portal. Mr. Tomlin testified that some phone companies, for example Rogers, require police with a valid authorization to send a query for subscriber information by email. The telephone company employee on the other end will ensure the query is authorized and if so, reply with the information. Other companies, such as Freedom Mobile, allow police to access their information portal directly. This is only permitted once a valid authorization is registered with the company. That authorization is assigned a code. The code must be entered, with other password credentials, to gain access to the portal each time a query is made. The authorizations granting access to subscriber information specified the procedure for obtaining information as the email process.

The Position of the Parties:

[94] The Applicants submit that the tower dump authorization did not meet the statutory preconditions under s. 487.015 of the Criminal Code because the affiant, Detective Smiley, articulated the purpose for the request as “determining whether or not Busby-Brown’s cellular phone transmitted or received a text or voice communication in the area of [REDACTED] prior to, during and after the home invasion.” Section 487.015 (2) sets out the prerequisites for making the order. Subsection (2)(c) states:

Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004 that there are reasonable grounds to suspect that …

(c) transmission data that is in the possession or control of one or more persons whose identity is unknown when the application is made will enable that identification. [Emphasis added]

[95] The Applicants submit that the information sworn by Detective Smiley indicates the information was being sought to determine whether or not the phone of Ms. Busby-Brown, a known person, was in the area in the relevant timeframe. Determining whether Ms. Busby-Brown’s phone was operating in that area is not identifying an unknown person or device involved in transmitting a communication. The Applicants submit that the misuse of the section is not a technical or insignificant breach. It is the position of the Applicants, citing R. v. Sadikov, 2014 ONCA 72, [2014] OJ No. 376 (CA.) at para. 84, that therefore theITO fails to disclose “reliable evidence that might reasonably be believed on the basis of which the warrant could – not would have issued.”

[96] Further, the Applicants submit that Detective Smiley relied on speculative information about the assailants’ use of cellphones during the home invasion robbery. The Applicants maintain that there were no objectively discernable facts to infer the assailants were using their own phones. The residents of the home told police that they believed the assailants were using “walkie talkies” to communicate. Detective Smiley included images from the home surveillance system at [REDACTED] to support his suspicion that the assailants were using cell phones. It is the position of the Applicants that this is pure speculation. If the photos referred to by Detective Smiley depict an assailant holding a cell phone, the only logical inference based on the evidence of the residents is that the phone in the photo was stolen from the residents of the home.

[97] Counsel on behalf of Mr. Carrington submits that the query made by Mr. Tomlin for the subscriber information of the unknown number from the tower dump records that was communicating with Mr. Marakah and Mr. Archer-Lyons for forty minutes in the vicinity of the robbery while it was being committed was unauthorized and breached Mr. Carrington’s section 8 rights. There was no authorization to obtain subscriber information for numbers obtained in the tower dump records. Further, there was no authorization to obtain the information through a portal rather than by email.

[98] It is the position of the Crown that the ITO, when read as a whole, sets out ample grounds upon which the tower dump authorization could issue. The Crown agrees that a precondition to the issuance of an authorization under s. 487.015 is reasonable grounds to believe that the data will reveal an unknown person. The Crown submits that the purpose of seeking the information from the cell towers was to identify which phone numbers Ms. Busby-Brown was potentially communicating with so that they could identify the unknown parties she may have been working with to commit the robbery.

[99] The Crown submits that the November 22, 2019 authorization to obtain subscriber information from Mr. Marakah’s historical data was sufficient for Detective Boulay to instruct Mr. Tomlin to make the query in the Freedom Mobile portal. There is no evidence that the procedure used to obtain the information, that being through the portal as opposed to email, was abused in any way.

The Law:

[100] In R. v. Rogers Communications Partnership, 2016 ONSC 70, [2016] O.J. No. 151 (S.C.) at para. 65, Justice Sproat set out guidelines for the police as to what to include in an ITO for a tower dump production order. They are:

1. a statement or explanation that demonstrates that the officer seeking the production order is aware of the principles of incrementalism and minimal intrusion and has tailored the requested order with that in mind. An awareness of the Charter requirements is obviously essential to ensure that production orders are focused and Charter compliant;

2. an explanation as to why all of the named locations or cell towers, and all of the requested dates and time parameters, are relevant to the investigation. - This obviously flows from what is now the s. 487.014(2)(b) Criminal Code requirement that there be reasonable grounds to believe that the documents or data requested will afford evidence respecting the commission of the offence;

3. an explanation as to why all of the types of records sought are relevant;

4. any other details or parameters which might permit the target of the production order to conduct a narrower search and produce fewer records;

5. a request for a report based on specified data instead of a request for the underlying data itself;

6. if there is a request for the underlying data there should be a justification for that request. In other words, there should be an explanation why the underlying data is required and why a report based on that data will not suffice;

7. confirmation that the types and amounts of data that are requested can be meaningfully reviewed. If the previous guidelines have been followed the production order should be focused which will minimize the possibility of an order to produce unmanageable amounts of data. This confirmation does, however, provide an additional assurance of Charter compliance.

[101] The reasonable suspicion standard is lower than reasonable and probable grounds but is still a rigorous standard. A reasonable suspicion must be based on objectively discernable facts which can then be subjected to independent judicial scrutiny. The scrutiny must account for the totality of the circumstances. See R. v. Chehil, 2013 SCC 49, [2013] SCJ No.. 49 (S.C.C.) at paras. 25 and 26; and R. v. Stairs, 2022 SCC 11, [2022 SCJ No. 11 (S.C.C.) at paras. 65-69.

Analysis:

Issue #1: Did the ITO to obtain tower dump records meet the statutory preconditions of s. 487.015?

[102] The Applicants submit that the statement in the ITO about the purpose for the request as “determining whether or not Busby-Brown’s cellular phone transmitted or received a text or voice communication in the area of [REDACTED] prior to, during and after the home invasion” is dispositive of this issue.

[103] However, the purpose for the request of Detective Smiley in the ITO has to be read in context and with the articulated grounds for the request. The wording of the ITO is as follows:

SUMMARY OF GROUNDS

75. Based on the information outlined in this Affidavit, I believe there are reasonable grounds to believe the following:

a. I know that on the 17th of October 2019, four (4) masked suspects, armed with handguns, and a pry bar, committed a home invasion at [REDACTED], Vaughan. The suspects were observed casing the area approximately three (3) hours prior to committing the home invasion and a fifth suspect acted as a lookout.

b. I know that on two separate occasions during the home invasion, the suspects are observed to be holding or utilizing a cellular device. Further, I know that there was communication between the suspects and a female that I believe was acting as a look-out, outside of the residence during the home invasion. I believe the look-out to be BUSBY-BROWN.

c. I know that break and enter tools that were used during the home invasion were purchased at Home Depot on the 9th of October 2019 by three suspects. One of the suspects has been identified as Cayla BUSBY-BROWN.

d. I know that BUSBY-BROWN’s telephone number is 365-688-1027.

e. I believe that the offences named have been committed.

f. I believe that the requested warrants and orders requested in this affidavit will assist in gathering information and evidence to assist police to identify arrest and prosecute the people involved in this robbery investigation. [Emphasis added]

TRANSMISSION DATA RECORDER WARRANT (section 492.2 of the Criminal Code)

76. Having “reasonable grounds to suspect that an offence has been or will be committed…and that transmission data will assist in the investigation…”, I propose that a Transmission Data Recorder warrant be issued pursuant to section 492.2 of the Criminal Code. I am seeking a Transmission Data Recorder in relation to the mobile device listed under section – Mobile Device, being used by BUSBY-BROWN. I reasonably believe that a Transmission Data Recorder warrant in relation to the device may display and record the telephone numbers for incoming and outgoing calls and text messages and may be used to identify BUSBY-BROWN’s co-conspirators that committed the home invasion at [REDACTED], Vaughan.

TRACKING WARRANT (MOBILE DEVICE) (section 492.1(2) of the Criminal Code)

77. Having “reasonable grounds to believe that an offence has been or will be committed…and that tracking an individual’s movement by identifying the location of a thing that is usually carried or worn by the individual will assist in the investigation of the offence…”, I am also proposing that a Tracking Warrant be issued pursuant to section 492.1(2) of the Criminal Code. I am seeking a Tracking Warrant in relation to the mobile device listed under section – Mobile Device, being used by BUSBY-BROWN. Based on information contained in this Affidavit, I reasonably believe the offences listed have been committed and/or will be committed and information relevant to the commission of the offence including the whereabouts of BUSBY-BROWN can be obtained through the cellular tracking capability built into the mobile device listed under section – Mobile Device.

78. The tracking device will allow investigators to monitor the movements of the mobile phone that BUSBY-BROWN is utilizing. Investigators will be able to identify locations where BUSBY-BROWN is attending, and these locations may assist investigators in identifying associates and places that she frequents.

79. I am also seeking that the tracking warrant also include the disclosure of the physical street address of cell towers upon which the intercepted telephone signals are bounced, as opposed to the cell tower identification number which is arbitrarily determined by the individual telephone company, irrespective of the physical location of the tower.

80. The mobile phone presently known to me and that I am proposing be subject to a tracking warrant include: a. 365-688-1027

PRODUCTION ORDER TO TRACE COMMUNICATIONS

81. It is through my police experience and knowledge that I know that people involved in crimes normally do communicate. A common method of communication is the cellular telephone – through either voice communications or by sending data messages. People involved in crimes often use a cellular telephone in the planning and execution stages of a crime. They also use them while making good on their escape.

82. I know that there are four (4) telephone service providers that manage cellular telephone traffic through various tower sites around the Greater Toronto Area, Rogers Communications Canada Inc, Bell Canada Incorporated, Telus Communications Inc, and Freedom Mobile Inc. Each company’s towers are used to facilitate the transmissions made and received by their subscribers.

83. I am seeking data transmission records from all four (4) cellular telephone companies listed above at the following location and times for the purpose of determining whether or not BUSBY-BROWN’s cellular phone transmitted or received a text or voice communication in the area of [REDACTED], prior to, during and after the home invasion. I am requesting a period of three hours and twenty-three minutes (3 hrs 23 min) in the area of [REDACTED], Vaughan, from 11:44 PM on the 16th of October 2019 to 3:07 AM on the 17^th of October 2019. This time encompasses the time in which the suspects are first observed casing the area of the targeted residence and the time in which they leave the residence after committing the home invasion. Although this is a large time frame, I believe this request is reasonable, considering that BUSBY-BROWN’s telephone number has been identified and can be compared to the data that is returned from the named telecommunication providers.

[104] When the stated purpose of the request is read alone, I agree with the Applicants that it appears Detective Smiley is asking for the information only to see if Ms. Busby-Brown was in the area of the robbery around the time it occurred. However, when the summary of the grounds and the stated purpose for the requested authorizations are read as a whole, it is clearly articulated that the belief of the police was that this robbery was an orchestrated effort that required communication between four or five individuals who were in the area casing the scene before and during the robbery. It is also clear from the stated grounds that the purpose of the request for the authorizations was to identify these individuals.

[105] I do not agree with the Applicants that the guidelines suggested by Justice Sproat for obtaining tower dump authorizations were ignored. The request was for the phone numbers of phones in the area at the relevant times without subscriber information of those numbers. The parties involved were in the area for hours before the actual robbery took place necessitating a wider time frame. The cell towers requested were in the vicinity of the robbery and therefore those most likely to have been used by the cell phones of the assailants.

[106] I find that the ITO met the statutory preconditions under s. 487.015.

Issue #2: Did the ITO rely on speculative information about the assailants’ use of cell phones during the robbery?

[107] The residents of the home told the police that they believed the suspects were using “walkie talkies” to communicate with each other and someone acting as a lookout outside of the house. None of the witnesses made reference to the assailants holding personal cell phones. The assailants stole seven phones from the residence. In the ITO, Detective Smiley referenced and included two still images from the video surveillance inside the home. In one of the images, the assailant is holding what looks like a cell phone with the screen lit up. In the other image, the assailant appears to be looking down at something he or she is holding. Detective Smiley also stated that in his experience, people involved in crimes often use cellular phones to communicate either by voice or by sending text messages in the planning and execution stages of a crime and while making good on their escape.

[108] In Mahmood, the Court held that the fact the police know that cellular communications are commonly used by those committing crimes is generalized speculation and insufficient to form the only basis to obtain a tower dump authorization. This case is distinguishable from Mahmood, however, because the grounds to suspect went beyond the assertion of Detective Smiley that cell phones are used in orchestrated crimes such as this one. The presence of “walkie talkies” does not negate the evidence to support a belief that cell phones were also being used. The first photograph referenced by Detective Smiley (timestamped 2:41:30) shows the suspect holding what appears to be a cell phone in use. The screen is lit up. The device is held in such a way that the person holding it can see the screen. The person holding it is looking down. The Applicants submit that this phone could have been one of the phones stolen by the assailants. That is also possible. That possibility does not render the suspicion of Detective Smiley unreasonable.

[109] In R. v. Baskaran, 2020 ONCA 25, the Court of Appeal agreed with the trial judge that “it was an available common sense inference arising from the fact that cell phones were likely being used so that the perpetrators could keep in contact with each other.” Although in Baskaran, witnesses did not describe the presence of “walkie talkies”, the presence of “walkie talkies” does not mean the suspicion of Detective Smiley that cell phones were also used was unreasonable, particularly when the perpetrators were casing the home for hours in separate vehicles before the actual robbery.

[110] I find that ITO did not rely on speculative information about phone use and that Detective Smiley’s suspicion that cell phones were used was reasonable.

Issue #3: Was the query for subscriber information for the number associating with Mr. Marakah and Mr. Archer-Lyons during the robbery unauthorized?

[111] Counsel for Mr. Carrington raises two arguments related to this search. First, the query for subscriber information for the number communicating with Mr. Marakah and Mr. Archer-Lyons for forty minutes in the vicinity of the robbery while it was occurring was not authorized. Second, the method used by the police in accessing the subscriber information through the Freedom Mobile portal was not described in the ITO and therefore not authorized.

[112] It is undisputed that the tower dump authorization did not include access to subscriber information. On December 17, 2019, when Mr. Tomlin, the analyst employed by the YRPS, discovered the connection between Mr. Marakah, Mr. Archer-Lyons and the third number, 647-573-2825 (“2825”), he was unsure if the police had obtained authorization to query this number. Mr. Tomlin asked Detective Boulay what he was permitted to do. Detective Boulay believed that he had authorization to seek subscriber information for this number pursuant to the November 22, 2019 authorization.The November 22, 2019 authorization allowed the police to obtain the historical phone records of Mr. Marakah and to access subscriber information of those phone numbers that communicated with him. The historical phone data had not been received at this time. It was received three days later. Had the historical phone data been in police possession there is no dispute that the query for subscriber information related to “2825” was authorized. Counsel for Mr. Carrington submits that because Mr. Tomlin had to pause and ask Detective Boulay if he could make the query, they both must have known it was unauthorized and went ahead anyway. I disagree. The fact that Mr. Tomlin asked the question reveals that he was live to Charter issues and did not want to do an unauthorized search.

[113] In my view, this issue boils down to one of common sense. Authorization was obtained for the police to obtain the subscriber information from each phone number that communicated with Mr. Marakah during the specified timeframe. The 2825 number communicated with Mr. Marakah during that time frame. This was revealed in the tower dump information and was contained in Mr. Marakah’s historical data. If Mr. Marakah’s phone activity was in the tower dump records, it was necessarily in his historical phone data. The November 22, 2019 warrant authorized the police to uncover the people who Mr. Marakah was talking to before, during and after the robbery. Therefore, I find that the search of the information in the tower dump records three days prior to the receipt of the the historical data did not breach Mr. Carrington’s section 8 rights.

[114] The second issue raised by counsel for Mr. Carrington is the method by which the query was made. Mr. Tomlin testified that some telephone companies, including Freedom Mobile, allow police to access their records themselves by way of a portal. To access the portal on a specific investigation, the police must provide the authorization to the telephone company. If satisfied, the telephone company will provide the police with an authorization code specific to that investigation. Each time the police make a query in the portal, they must enter the code specific to that investigation. The portal is password protected and only accessible to authorized police agents.

[115] Other telephone companies, like Rogers, require the police agency to submit an email request to a specified agent of Rogers who will review the request and related authorization and if satisfied with the information provided by the police, fulfill the request.

[116] The difference between the two methods is that once authorized to query under the portal, the information is returned electronically without review by an employee of the company. It is computer generated. Therefore, this method relies on the police agent to only query those numbers it is authorized to. In other words, there is no person on the other end of the request making sure the query is covered by the authorization that was filed. Mr. Tomlin testified that the telephone companies using the portal system do have a process by which the requests made are audited after the fact. No evidence was called as to what the auditing process entails, only that it exists

[117] The portion of the authorization related to how the information is to be produced and provided by the telephone companies to the YRPS states:

PRODUCTION OF SUBSCRIBER DATA (s. 487.014)

7. IT IS FURTHER ORDERED pursuant to section 487.014 of the Criminal Code that any person or entity, who has possession or control of data, with respect to the device or telephone number listed in paragraph 3 and/or the person listed in paragraph 2 of this Order, shall prepare and produce a document containing such data. The document to be produced shall contain data relating to: basic subscriber information data within the date range from the “16th of October 2019, up to and including the 18th of October 2019 and from the 8^th of October 2019 up to and including the 10^th of October 2019.”

(a) Subscriber information includes any information associated to the listed person and/or the subscriber of the listed device or telephone number, including but not limited to: customer name, address and telephone number (CNA), active service provider identification (SPID) and any non-published subscriber information.

(b) The document(s) prepared, shall be produced to Detective Constable Smiley, via e-mail sent to 1996@yrp.ca, and Analyst Dave Tomlin, via email sent to 5596@yrp.ca, within 30 days of the issuance of this Order.

[118] Counsel for Mr. Carrington submits that the wording of the authorization does not include queries being made by a portal, rather it specifies the information must be provided by email. As such, the method by which the query was made and information produced was unauthorized. I disagree. The order requires any “person” or “entity” to prepare and produce a document containing the data. It does not require a “person” only to produce the information but allows for the possibility that the information may come from an “entity”. In my view, this includes an electronic database. It is true that the order specifies that the information be received by email to Mr. Tomlin or Detective Smiley. I do not view the transmission of data electronically through a portal to Mr. Tomlin to be meaningfully different.

[119] Counsel for Mr. Carrington asks that I find that using the portal method in general to be a violation of section 8 because it necessarily depends on the trustworthiness of the police agent doing the search without adequate scrutiny for authorization. It is not necessary for me to do this. In this case, Mr. Tomlin was live to the issue of misuse and took steps to ensure his query was authorized. There is evidence before me that the telephone companies who allow police access to information through this portal have an auditing system to ensure the searches are authorized though no evidence was called as to what those auditing systems are. I have found that the query made by Mr. Tomlin was authorized and need not make a general finding as to the Charter compliance of portal use in general.

[120] I find that the December 17, 2019 query for subscriber information related to the 2825 number was authorized.

Investigative Necessity:

Investigative Necessity – The One-Party Consent Issue:

[121] The Applicants submit that the pre-condition of investigative necessity was not met in this case for a number of reasons. The Applicants’ main argument with respect to investigative necessity is the fact that the one-party consent was in its infancy at the time the Part VI authorization was sought. It is their position that the police should not have applied for the Part VI authorization unless and until the investigative goals of the one-party consent authorization were exhausted.

The Evidence:

[122] Detective Constable Whyte was the affiant on the Part VI ITO. He testified that he knew he was required to demonstrate that other avenues of investigation were unlikely to succeed and that he was aware of the precondition of investigative necessity. Detective Constable Whyte testified that he was briefed by Detective Boulay and provided with an investigative chronology on January 6, 2020. In preparation for drafting the ITO, Detective Constable Whyte reviewed the prior ITOs and other information relevant to the investigation.

[123] Detective Constable Whyte testified that he was aware of the one-party consent undercover operation underway with Ms. Busby-Brown as the target when he started working on the Part VI ITO. He reviewed Detective Smiley’s ITO. The authorization for the one-party consent was granted on December 24, 2019. In the ITO for the one-party consent, Detective Smiley stated:

149. I have spoken with officers who have been involved in similar undercover operations who advise me that not only is this investigative technique often successful, but relied upon.

150. Undercover officers are specifically selected based upon their knowledge, skill and ability to build rapport with individuals with whom they have had no previous relationship or interaction. These skills are further developed and matured through extensive training and field experience. Once an undercover officer has successfully completed training from the Criminal Intelligence Service of Ontario (CISO) and has a proven track record in the field, they are deemed a Level Five (5) Undercover Operator qualified to work in this capacity. In addition, Level Five (5) Undercover Operators are selected from a qualified pool based upon criteria such as age, race and background deemed to have the greatest probability of identifying with the principal target(s).

151. BUSBY-BROWN is currently employed full-time and spends the majority of the week, including weekends at work. Based on the tracking of BUSBY-BROWN’s Mercedes-Benz and her cell phone, she spends a considerable amount of time at MARAKAH’s residence after work and in some instances, stays overnight.

152. Given the skill and success of these undercover officer operations, I reasonably believe that initial contact between the undercover officer and BUSBY-BROWN at her place of employment will prove fruitful in building the first stages of a rapport. Following this initial contact, the undercover officer will be deployed in a series of additional scenarios where I believe trust and potentially friendship will be developed with BUSBY-BROWN. Further, it is reasonable for me to believe that once the undercover officer and BUSBY-BROWN develop a friendship, MARAKAH will be introduced by BUSBY-BROWN to the undercover officer.

153. I believe that once a friendship between the undercover officer and BUSBY-BROWN has been developed, BUSBY-BROWN and / or MARAKAH will provide admissions which will result in the gathering of evidence of the named offences. These admissions may include vehicles used, the purchase of the break and enter tools and / or intimate details of the home invasion. The evidence may also reveal the identity of additional suspect(s), how they know each other, whether or not they have committed or plan to commit further criminal offences together.

[124] Detective Constable Whyte testified that he was also familiar with the investigative goals of the one-party consent undercover operation and had reviewed Detective Smiley’s ITO that stated:

INVESTIGATIVE PLAN and GOALS

164. There will be one undercover officer who has consented to the interception of her communications. It is anticipated that there will be a need for numerous interactions and communications between the undercover officer and BUSBY-BROWN for this investigative technique to be successful.

165. The goal of this investigative technique is for the undercover officer to build sufficient rapport with BUSBY-BROWN and / or MARAKAH and to elicit admissions in regards to their role and the role of others in the home invasion. The building stages of rapport will be critical to the success of the overall operation and will undoubtedly take time.

166. By design, scenarios will be structured around BUSBY-BROWN’s lifestyle to create a personal connection with the undercover officer. While deployed scenarios are well thought out and planned, they can be dynamic in nature. The following outlines the first contact scenario; however, investigators cannot necessarily pre-plan or predict with certainty the scenarios to be deployed afterwards until a de-brief of the information learned surrounding initial contacted has been conducted.

167. To initiate first contact, the undercover officer will schedule an appointment with BUSBY-BROWN at her place of employment, KC & Co. Hair Salon, on a day that BUSBY-BROWN is working. The appointment has been scheduled for the 6th of January 2020. It is my understanding that the services to be requested at the salon may take anywhere from one to two hours, which will provide the undercover officer ample time to engage BUSBY-BROWN in conversation and commence the first stages of building rapport. This location is ideal. For the most part, it is a controlled environment with minimal risk to the undercover officer.

168. Following first contact, a series of additional scenarios will be developed and deployed to build on the relationship between the undercover officer and BUSBY-BROWN. These scenarios may take place at any of the locations as described in paragraph 158. I also believe that during the sixty (60) day period in which this proposed Authorization is valid, that BUSBY-BROWN will introduce MARAKAH to the undercover officer.

169. Should the undercover officer be introduced to MARAKAH, additional scenarios will be developed and deployed to build ongoing trust between the undercover officer, MARAKAH and BUSBY-BROWN. The content of these scenarios will be based around personal and / or intimate knowledge of BUSBY-BROWN and MARAKAH as a result of lifestyle information learned by the undercover officer during previous scenarios.

170. The goal of this investigative technique is for the undercover officer to build sufficient rapport with BUSBY-BROWN and / or MARAKAH and elicit admissions, in regards to their role in the home invasion. I further reasonably believe that these admissions will identify accomplices and the planning and execution stages of the home invasion.

[125] Detective Constable Whyte was aware of the details of the first and only meeting between the undercover officer and Ms. Busby-Brown. During her conversation with Ms. Busby-Brown, the undercover officer learned information which included:

i) Ms. Busby-Brown did not own the hair salon where she worked;

ii) She had been in the industry for 10 years;

iii) She had lived in the Stouffville area since she was small;

iv) Ms. Busby-Brown went to high school with her now boyfriend, Nour. They had been dating for 10 years;

v) Ms. Busby-Brown lived with her parents but spent most of her time with her boyfriend. She mostly slept at his house. They planned to buy a house together;

vi) Ms. Busby-Brown used to have an iPhone but now has a Samsung. She talked to Nour often throughout the day;

vii) Ms. Busby-Brown provided her cell phone number to the undercover officer;

viii) Nour is a music producer who works from home. He does not drink alcohol. He is an only child who lives with his parents;

ix) Nour has a Samsung phone.

[126] Detective Constable Whyte was aware that the undercover officer had been in conversation with Ms. Busby-Brown after their meeting via text and that no new meetings had been arranged.

[127] In his ITO for the Part VI authorization, Detective Constable Whyte stated the following about the undercover operation:

168. An undercover officer, Detective Constable TESTER, badge #1251, was deployed with the goal of establishing a rapport with BUSBY-BROWN and the intention of leading to future contacts, in the context of a friend and possible confidant. On January 8th 2020, the undercover officer attended KC & Co., Hair Salon in Whitby, where BUSBY-BROWN works as a blonde specialist.

[128] Detective Constable Whyte then summarized the information that the undercover officer got from Ms. Busby-Brown through text message and during the hair appointment.

[129] Detective Constable Whyte also explained that the undercover operation would play into the Part VI investigative plan. He stated:

INVESTIGATIVE PLAN

203. It is not the intent of the investigators to passively listen to the private communications of the principal known persons. Should this authorization be granted, investigators will use a series of crafted stimulations designed to fulfill the investigative goals. In addition to valuable intercepts from the private communications of MARAKAH, CARRINGTON, and ARCHER-LYONS the stimulations are designed to produce conversation about the following unknown aspects of the investigation;

i) knowledge, and/or involvement in the robbery regarding BUSBY-BROWN, GIANNONE, and ISAACS;

ii) LEE’s knowledge and/or involvement in the robbery, and whether he supplied a firearm(s);

iii) the identity of the dark-coloured sedan;

iv) discussion about, and the disposition of, the tools used in the home invasion robbery;

v) identify the individual(s) responsible for supplying the suspects with the information leading them to commit the home invasion robbery;

vi) other unknown person(s) involved in the home invasion robbery.

204. It is the intention for approximately three (3) weeks for the investigators to confirm the voice identifications for the principal known suspects. Additionally, during this timeframe, all reasonable attempts to probe the vehicles listed in paragraph 4(a) of the authorization will be made. The use of the following investigative techniques without the ability to intercept the private communications would be of very limited evidentiary value.

205. The undercover officer will be deployed to engage in a successive hair appointment at KC & Co. Salon in Brooklyn with Cayla BUSBY-BROWN. Time will be given to the undercover officer to rekindle the rapport that was established in the initial operation.

[130] Under the heading of investigative necessity, Detective Constable Whyte discussed the frailties of the undercover play. He stated:

299. Investigators have deployed an undercover officer with the goal of establishing rapport and trust with BUSBY-BROWN. The introduction and initial scenario lead to foundation building where an exchange of numbers occurred and generic information was discussed. During this time, it was confirmed that BUSBY-BROWN is in a relationship with a male named, Nour, and that he works out of his residence producing music videos. BUSBY-BROWN’s phone line, (365) 688-1027, was subsequently confirmed by the undercover officer.

300. The limitations of an undercover officer were evident, as BUSBY-BROWN is unlikely to introduce her to MARAKAH, or any of his associates. Even in the improbable event of an introduction, I believe there is no scenario where BUSBY-BROWN, MARAKAH, or any of the other suspects will openly discuss the intimate details of the robbery; such as how the information came to them, individual roles within the robbery, the use of firearms, and the identity of all the parties responsible. Aggressively, trying to insert or force an introduction to MARKAH, ARCHER-LYONS, and CARRINGTON is likely to cause suspicion. Furthermore, it places the undercover officer in a potentially dangerous position taking into consideration the criminal offense being investigated is robbery, and the presence of three (3) handguns.

301. The undercover operator combined with the anticipated stimulation will provide the undercover operator with a genuine reaction from BUSBY-BROWN from which she can gauge potential culpability, provide a timely outlet for conversation, and relay avenues to exploit with future stimulations if applicable.

302. Though a measure of success has been achieved by introducing an undercover officer, it is limited to general information. Reliance on this investigative means will not achieve the goals of the investigation.

The Position of the Parties:

[131] The Applicants submit that the opinion of Detective Constable Whyte that the undercover operation would not be viable is erroneous and misleading. His opinion directly contradicts that of Detective Smiley who swore the one-party consent ITO a few weeks before. The undercover operation was in its infancy. Seeking the Part VI authorization before the undercover operation had an opportunity to achieve its investigative goals undermines the investigative necessity of the Part VI.

[132] The one-party consent investigative plan was to have successive meetings with Ms. Busby-Brown. By the time of the Part VI authorization, there had only been one meeting. The goals of the one-party consent operation were to build rapport. This would necessarily take time. Detective Constable Whyte mislead the issuing Justice when he stated his opinion that “[t]hough a measure of success has been achieved by introducing an undercover officer, it is limited to general information. Reliance on this investigative means will not achieve the goals of the investigation.”

[133] The thrust of the Crown’s position is investigative necessity has been made out when considered in the context of the goals of the investigation. The main goal of the investigation was to gather evidence that would result in the successful prosecution of all the individuals involved in the violent home invasion. The issuing Justice carefully considered the grounds for the authorization articulated in the ITO and gave written reasons as to why he was granting it in part. The alleged missing information would not have altered the decision of the issuing Justice. Any of the avenues of investigation not taken prior to the request for the Part VI would have been obvious to the issuing Justice and he found there to be investigative necessity in any event.

[134] The Crown submits that the Part VI and one-party consent authorizations had different investigative goals. The one-party consent application focused on the gathering of evidence to identify parties to the offence. The goal of the Part VI application was to support a successful prosecution. Detective Constable Whyte was frank in revealing there were reasonable grounds to arrest Mr. Marakah, Mr. Carrington and Mr. Archer-Lyons. This demonstrates the very different goals of the two authorizations.

[135] Detective Constable Whyte did not include the information known to Detective Smiley about the likelihood of success of the one-party consent operation. He did not include the information about the level 5 trained undercover officer. It is the position of the Crown that the inclusion of this information would still have resulted in the authorization.

[136] The Crown submits that the ITO outlines how the one-party consent, with its proposed on-going nature, would be used to stimulate the wires should a Part VI authorization be granted. Therefore, the issuing Justice would have known the one-party consent had not run its course.

The Law:

[137] The test on a “Garofoli” application is whether, after amplification and excision, there remains in the ITO sufficient reasonable and probable grounds that the authorization could have issued. The reviewing judge does not substitute his or her view for that of the authorizing judge. See R. v. Garofoli, [1990] 2 S.C.R. 142 at para. 56.

[138] Part VI authorizations are for the police to intercept private communications of individual citizens. They are obtained on an ex parte basis. Therefore, the affiant of an ITO must make full, frank and fair disclosure. See Wallace v. Canada, [2017] O.J. No. 708 at paras 13 and 14.

[139] Justice LeBel, writing for the Supreme Court of Canada in R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992 at para. 47 held: “Counsel and police officers submitting materials to obtain wiretapping authorizations should not allow themselves to be led into the temptation of misleading the authorizing judge, either by the language used or strategic omissions.”

[140] The affiant must include all material facts that are known, whether they support the issuance of the authorization or detract from it. As stated by Justice Fish in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at para 58:

When seeking an ex parte authorization such as a search warrant, a police officer -- indeed, any informant - must be particularly careful not to "pick and choose" among the relevant facts in order to achieve the desired outcome. The informant's obligation is to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant details, but not by material nondisclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed.

[141] A reviewing Judge must determine what, if any, information should be removed from the ITO before the issuing Justice. This includes erroneous, misleading and fraudulent statements. The reviewing Judge must not substitute his or her view for that of the issuing Justice but assess, on the record left once excised of this material and amplified by evidence adduced on the hearing to correct minor technical drafting errors, whether there remains sufficient credible and reliable evidence upon which the issuing Justice could have issued the authorization. See R. v. Mahmood, 2011 ONCA 693 at para. 99; Morelli, supra at paras 40-42; R. v. Pires; R. v. Lising, 2005 SCC 66 at paras 8 and 30; Araujo, supra at paras. 54 and 59; Garofoli, supra at p. 1452 and R. v. Wiley, 1993 CanLII 69 (SCC), [1993] 3 S.C.R. 263 at pp. 273-274.

[142] In R. v. Wasfi, 2006 BCCA 55 at para. 49, the Court considered the issue of police contemplating early on in an investigation the need to apply for a wiretap authorization. The Court held that “it is an error to suggest that police investigators must avoid anticipating early in an investigation that they will need to apply for a wiretap authorization. The nature of the case might make it plain to the officers early on that it is unlikely they will be able to make a strong case without wiretap evidence.” See also R. v. Glover [2006] O.J. No. 2319 (S.C.J.) at paras. 26-28; and R. v. Beauchamp, 2015 ONCA 260 at paras. 101-102.

[143] Investigative necessity is a pre-condition to the issuance of an authorization. The test set out in s. 186(1)(b) of the Criminal Code must be applied with regard to “the nature and purpose of the particular investigation which the police wish to undertake”. There must be no reasonable alternative method of investigation in the circumstances of the particular case. See R. v. Arujo 2000 SCC 65 at para 29. Section 186 does not require that all alternative investigative techniques have been tried. It is not a test of last resort. It can be employed not only when the other methods have failed, but also when they appear to have little chance of success. See Arujo, at para. 34 adopting R. v. Hiscock (1992), 1992 CanLII 2959 (QC CA), 72 C.C.C. (3d) 303 at 325 (Que. C.A)].

[144] Investigative necessity must be assessed through the stated goals of the investigation. See R. v. Lee, 2001 BCSC 1649 at para. 90; and R. v. Schreinhert at para. 37. A consideration of investigative necessity must also be based on the ITO as a whole. See R. v.Pham, 2002 BCCA 247 at para. 86; R. v. McLaughlin, [2005] O.J. No. 1156 at paras. 125 and 126; Simonyi-Gindele v. British Columbia (Attorney General), 1991 CanLII 984 (BC CA), [1991] B.C.J. No. 2220 (C.A.) and R. v. N.N.M. 2007 CanLII 31570 (ON SC), [2007] O.J. No. 3022 (S.C.) at para. 316.

Analysis:

[145] The goals of the Part VI ITO were to: gather clear and compelling evidence on known, and unidentified parties to undertake a successful prosecution; to identify how each party to the offence participated in the planning; to identify the individual(s) responsible for supplying the suspects with the information leading them to commit the home invasion robbery; and the seizure of the restricted handguns, tools, & evidence related property associated to the commission of the offence. Investigative necessity must be assessed through the lens of these goals as considered by the issuing Justice.

[146] While the Applicants submit that the drafting of the ITO overall portrays recklessness and bad faith on the part of Detective Constable Whyte, their main argument lies with his characterization of the viability of the one-party consent and the contradictory expression of viability by Detective Smiley in the previous ITO. It is their position that the decision to seek the Part VI authorization before the undercover operation had an opportunity to achieve its investigative goals undermines the investigative necessity of the Part VI. Had the ITO included reference to the information of Detective Smiley that the undercover operation, with its “Level 5” trained officer, was likely to succeed, the authorization could not have issued because the issuing Justice would have determined the pre-condition of investigative necessity had not been met.

[147] With respect to the one-party consent undercover operation, the Part VI ITO included the following:

1. the date that the one-party consent was granted (December 24, 2019);

2. the date of the first and only face-to-face meeting between the undercover officer and Ms. Busby-Brown (January 8, 2020);

3. the fact that the on-going undercover operation was going to be deployed in tandem with the wiretap operation to stimulate conversations amongst the suspects and “provide the undercover operator with a genuine reaction from Busby-Brown from which she [could] gauge potential culpability, provide a timely outlet for conversation, and relay avenues to exploit with future stimulations if applicable”;

4. the goal of the one-party consent authorization being the undercover officer establishing trust and building a rapport with Ms. Busby-Brown;

5. the fact that the initial meeting led to foundation building, an exchange of phone numbers and the information learned by the undercover officer;

6. the fact that although a “measure of success” had been achieved by the undercover operation, it was “limited to general information”;

7. the affiant’s belief that Ms. Busby-Brown was unlikely to introduce the undercover officer to Mr. Marakah;

8. the affiant’s belief that in the unlikely event of a meeting, the implausibility of Ms. Busby-Brown, Mr. Marakah or others discussing intimate details of the robbery or other criminal behaviour;

9. the affiant’s belief that forcing an introduction would cause suspicion; and

10. the affiant’s belief that this would place the undercover officer in a dangerous situation.

[148] The Applicant submits that the ITO should have also included Detective Smiley’s information that:

1. He had spoken to other officers who have been involved in similar undercover operations who advised him that this investigative technique is often successful and relied upon;

2. The undercover officer was specifically selected based on her ability to build rapport with individuals, had extensive training and field experience, a proven track record in the field and is deemed a Level Five Undercover Officer;

3. Given the skill of the undercover officer it was reasonable to believe that Ms. Busby-Brown would introduce her to Mr. Marakah;

4. He believed that Ms. Busby-Brown and/or Mr. Marakh would provide admissions that would assist in the gathering of evidence about the robbery and additional suspects.

[149] The relatively short period of time that the undercover operation had been running as well as its up-to-date results would have been clear to the issuing Justice. The Applicants take issue with Detective Constable Whyte’s belief that the operation would not meet the investigative goals of the Part VI application because it is an unsubstantiated opinion. The belief of Detective Smiley as to the probability of success of the one-party consent was also an opinion. Detective Smiley’s opinion is seemingly grounded, however, in the level of training and experience of whichever officer would be assigned. I accept that this information should have been contained in the Part VI ITO.

[150] Having considered the ITO with the addition of Detective Smiley’s contradictory opinion and the information about the level of training of the undercover officer, I find that the pre-condition of investigative necessity is still made out. Investigative necessity has to be viewed in the context of the investigative goals of the Part IV ITO.

[151] The goals of the one-party consent operation were to build sufficient rapport with Ms. Busby-Brown and/or Mr. Marakah and elicit admissions in relation to their role in the home invasion. The goals of the Part VI were to: gather clear and compelling evidence on known, and unidentified parties to undertake a successful prosecution; to identify how each party to the offence participated in the planning; to identify the individual(s) responsible for supplying the suspects with the information leading them to commit the home invasion robbery; and the seizure of the restricted handguns, tools, and evidence related property associated to the commission of the offence.

[152] The issuing Justice was aware that the one-party consent had only been active for a short period of time. He was also aware of precisely what information had been obtained and what rapport had been established between Ms. Busby-Brown and the undercover officer. The information that the issuing Justice did not have and should have had is the opinion of Detective Smiley that based on the level of training and experience of the undercover officer, Ms. Busby-Brown and Mr. Marakah would provide admissions that would assist in the gathering of evidence about the robbery and additional suspects.

[153] Again, viewed in the context of the investigative goals of the Part VI ITO, even with the inclusion of this information, the authorization could have issued. It is clear from his written reasons that the issuing Justice scrutinized the ITO and the stated grounds for the application. Knowing that the one-party consent operation was only recently undertaken and knowing what specific information and rapport-building had occurred, the issuing Justice, in finding that the test had been met, held that there was no reasonable alternative method of investigation in the circumstances.

Investigative Necessity – The Person of Interest Issue:

The Evidence:

[154] When questioned by the police as to who may have known about the substantial amount of cash present in the home at [REDACTED] on October 17, 2019, the residents of the home gave the police two names.

[155] Shyara Seneviratne worked for the victim, Laeeq Ahmad, at his employment agency in Toronto, as a manager of customer relations. She was subsequently fired as she had been embezzling money from the company when Mr. Ahmad had become ill.

[156] Mubashir Malik, the current owner of the employment agency provided the name of Sohab Chaudhry. Mr. Malik alleged that Mr. Chaudhry had a criminal past and had been charged with robbery against an employment agency. Mr. Malik had recently given Mr. Chaudhry $4,000 so that he could fulfill an outstanding restitution order and avoid incarceration. Mr. Chaudhry had been to the residence on several occasions but had never been inside.

[157] All of this information was included in the ITO.

[158] The investigators believed it was possible that one or both of these individuals had set up and/or participated in the robbery. Included in the ITO for the Part VI was the fact that phone numbers associated with these individuals were cross-referenced by Mr. Tomlin against the cell phone records of the suspects as well as the tower dump records which produced no links between the parties.

The Position of the Parties:

[159] The Applicants submit that the ITO failed to establish investigative necessity because the police did not thoroughly investigate the persons of interest named by the residents of [REDACTED]. Specifically, they did not obtain production orders for their phones.

[160] It is the Crown’s position that the ITO sufficiently outlines the facts related to the two persons of interest identified by the residents of [REDACTED]. Detective Constable Whyte reported the lack of connections between their phones and the phones of the suspects as told to him by Mr. Tomlin. It is clear from the ITO that the focus of the investigation shifted once the information from Home Depot and the identifications from Instagram were made.

Analysis:

[161] The police were live to the probability that the persons who committed the robbery must have had knowledge of the fact that there was a large amount of cash stored in the home. This fact was conveyed to the issuing Justice in the outline of statements of the residents of the home. Details about why the residents thought the two persons of interest may have been involved were included. An investigation into a link between their phones and the known suspects’ phones was conducted by Mr. Tomlin who crossed referenced the numbers. This information was also included in the ITO. The extent to which these persons of interest were investigated was known to the issuing Justice. The information has to be read in the context of the ITO as a whole including the evidence from Home Depot implicating Ms. Busby-Brown and Mr. Marakah. Clearly, the issuing Justice did not think further investigation into these individuals had to be done to make out investigative necessity. I agree.

Investigative Necessity – The Suspect Interview Issue:

The Evidence:

[162] Detective Constable Whyte said the following in the ITO:

283. I do not believe that any attempts by investigators to interview MARAKAH would result in an admission of guilt, details about his co-conspirators, or their respective roles. Moreover, CARRINGTON and ARCHER-LYONS have been arrested, charged, and received criminal convictions for prior criminal incidents. It is unlikely that they would incriminate themselves by admitting their participation in the home invasion robbery, and then testify to that effect in court.

284. Cayla BUSBY-BROWN and Ryan LEE have no criminal records and no known arrests. Despite a lack of familiarity with law enforcement and the potential for investigators to take advantage from the shock of arrest, I do not believe BUSBY-BROWN or LEE would provide a full confession of their involvement. Under the setting of a cautioned interview, and after speaking with a legal representative there would be no incentive for either party to cooperate and provide a statement of guilt.

285. A crafted interview for the explicit purpose of suspect stimulation may result in valuable information, not from the interview, but from the anticipated interception of communications afterwards. As such, I reasonably believe that interviews in the absence of authorized probes, and intercepts are unlikely to satisfy the goals of this investigation, and may in fact jeopardize them.

The Position of the Parties:

[163] The Applicants submit that this conclusory statement demonstrates the investigators knew about a potential avenue of investigation they wrongly concluded they should not pursue and as such this lends credence to their argument that investigative necessity has not been met.

[164] The Crown submits that the affiant was correct in his belief that interviewing suspects as to their roles in the investigation was not a viable investigative technique that ought to have been explored to establish investigative necessity.

Analysis:

[165] This statement of the affiant that the suspects would not confess if interviewed, though conclusory, is likely based on experience and common sense. In any case, it would be untenable for investigating officers to be required to interview suspects in hopes that they would incriminate themselves in order to satisfy the test for investigative necessity. Such a practice would inevitably lead to the destruction of evidence and frustrate any viable investigation into alleged offences.

[166] The police are not obliged to exhaust every potential avenue of investigation before applying for a Part VI authorization. The lack of interviews in this case does not result in a failure to meet the investigative necessity pre-condition.

Investigative Necessity – The Search Warrant Issue:

The Evidence:

[167] Detective Smiley swore in ITOs that pre-dated the Part VI, that tracking warrants “are successful in locating where suspects store goods.” Potential search locations related to the suspects were known to the police prior to the Part VI authorization.

The Position of the Parties:

[168] The Applicants submit that search warrants should have been obtained prior to seeking the Part VI authorization. The execution of search warrants was an avenue of investigation available to the police that was not explored. The Applicants rely on Araujo and Beauchamp, where search warrants were conducted before the Part VI authorization was sought.

[169] The Crown submits that executing search warrants was not a viable avenue of investigation in the circumstances. The execution of a search warrant would alert the suspects that they were under investigation.

Analysis:

[170] In the context of this case, where the activities of the suspects were being tracked pursuant to the prior authorizations, it would have been counter-productive for the police to execute search warrants thus putting the suspects on notice that they were under investigation. The fact that search warrants had not been obtained would have been obvious to the issuing Justice who ultimately concluded that investigative necessity had been made out. Once again, the police are not obliged to exhaust every potential avenue of investigation before applying for a Part VI authorization.

Investigative Neccessity - The Confidential Informant Issue:

[171] The Applicants submit that a statement made by Detective Constable Whyte in the ITO about a prior media release failing to generate witnesses or confidential informants is contradicted by the funding proposal for the Part VI authorization prepared by Detective Boulay. In the funding proposal Detective Boulay asserted that any use of confidential sources would be in accordance with the agencies’ own policy and procedures. The Applicants submit that the police should have considered using confidential sources before resorting to a Part VI. I disagree. There is no suggestion in the funding proposal or the ITO that there actually were confidential sources known to the police and willing to provide information. The funding proposal simply states if a confidential source were to be discovered, the agencies’ policies would be followed. It does not appear that this was an avenue of investigation available to the police. Therefore, their failure to use a confidential informant does not negate investigative necessity.

Investigative Necessity – Contemplation of the Part VI before the Execution of the One-Party Consent:

[172] On November 19, 2019 Detective Boulay’s notes give an indication that a Part VI authorization was contemplated. On January 6, 2020 Detective Whyte was assigned to be the affiant. The first meeting between the undercover officer and Ms. Busby-Brown took place on January 8, 2020. A funding proposal for the Part VI operation was submitted by Detective Boulay on February 4, 2020.

The Position of the Parties:

[173] The Applicants submit that the Part VI ITO was sought out of a desire for efficiency rather than out of necessity. The fact that it was contemplated early on in the investigation and that preparation of the ITO commenced before the first meeting between the undercover officer and Ms. Busby-Brown confirms their position.

[174] The Crown submits that the early contemplation of the need for a Part VI authorization was reasonable and does not reflect a decision of the investigators to proceed with the application regardless of investigative necessity.

Analysis:

[175] I agree with the Crown that the early contemplation of the need for a Part VI authorization does not reflect a decision of the investigators to proceed with the application regardless of investigative necessity.

[176] In R. v. Wasfi, 2006 BCCA 55 at para. 49, the Court considered the issue of police contemplating early on in an investigation the need to apply for a wiretap authorization. The Court held that “it is an error to suggest that police investigators must avoid anticipating early in an investigation that they will need to apply for a wiretap authorization. The nature of the case might make it plain to the officers early on that it is unlikely they will be able to make a strong case without wiretap evidence.” See also R. v. Glover [2006] O.J. No. 2319 (S.C.J.) at paras. 26-28; and R. v. Beauchamp, at paras. 101-102.

[177] Once again, the timing and status of the one-party consent operation was known to the issuing Justice. When assessed in the context of the status of the investigation as a whole, the decision to prepare for and seek the authorization does not betray a need for efficiency at the expense of the pre-condition of investigative necessity.

Investigative Necessity – Conclusion:

[178] I find, on the record before the issuing Justice as amplified by the evidence on this hearing, the test for investigative necessity was met.

Excision and Amplification:

[179] In addition to the opinion of Detective Smiley that the one-party consent was likely to be successful due to the training and experience of the undercover officer, the Applicants submit that a number of statements in the Part VI ITO (unrelated to investigative necessity) must be excised. It is their position that when those statements are removed, the authorization could not have issued.

The Location of Evidence:

[180] The Applicants submit that the following statement of Detective Constable Whyte in the Part VI ITO should be excised:

Valuable evidence such as the tools, and firearms used in the act of the robbery may be lost without interception. Having the suspects discuss the use of, and then the subsequent disposition of the tools and firearms provides valuable evidence towards culpability. Moreover, it will likely provide investigators with locations of where they are stored, or where they have been disposed of, leading to successful search warrants and the recovery of invaluable physical evidence.

The Position of the Parties:

[181] It is the position of the Applicants that this statement is deliberately misleading. A Part VI authorization was not necessary to determine potential locations of evidence. The police had already obtained tracking warrants for the suspects. Detective Smiley swore in four separate ITOs that tracking warrants were successful in locating where suspects store goods. He stated:

68. Establish a Pattern – in my experience as a police officer, I have found that tracking devices have been successfully used by investigators to determine a suspect’s pattern such as when the suspect leaves his residence, places visited and times they commit criminal offences. Once this pattern is established, it will allow investigators to determine where search warrants can and should be executed to recover stolen property and / or suspect clothing to strengthen the evidence against the suspects.

[182] The Crown submits that the Applicants have selected isolated portions of the ITO for scrutiny rather than reading the ITO as a whole. The Crown reiterates that the issuing Justice was not a passive observer. He pared down the scope of the investigation as evidenced by his decision to not allow interceptions of Ms. Giannone.

Analysis:

[183] The issuing Justice was given knowledge of the prior telecommunications authorizations and aware that search warrants had not been conducted. The assertion of Detective Constable Whyte that the Part VI authorization would assist in the location of property to be searched was relayed to the issuing Justice along with the fact that the police already had tracking warrants. Therefore, I do not find this statement to be misleading. Even if it were to be excised from the ITO, the authorization could have issued.

The Fifth Participant in the Robbery Issue:

[184] Detective Constable Whyte made the following statement in the ITO:

275. It is not unreasonable to assume another potential lookout was on foot outside the residence. Furthermore, another suspect may have been inside the residence but never went to the second floor, and two more suspects could have been allocated to each of the parked vehicles. They would serve as additional lookouts and have the ability to intercept the suspects inside the residence quickly should the need arise. A link is yet to be determined as to how the suspects knew about the employment agency, their habits with cash money, where they live, and timing are still unknown. Without stimulation and the interception of private communications it cannot be ascertained who provided this information to the known suspects.

The Position of the Parties:

[185] The Applicants submit that the statement by Detective Constable Whyte in the ITO that there was potentially a fifth person who entered the house was misleading and unsupported on the evidence. It is the position of the Applicants that Detective Constable Whyte was trying to heighten the number of people involved to strengthen his application for the wiretaps. The video surveillance clearly shows that only four people exited the car and approached the house.

[186] The Crown submits that this is not a misleading statement. The video surveillance does show four people exiting the car and approaching the house. The surveillance is limited to the exterior of the home and the second floor. Given the number of vehicles involved in the casing of the home prior to the robbery, this was not an unreasonable suspicion.

Analysis:

[187] The police had evidence that at least three cars were casing the property for hours prior to the robbery. The evidence from the residents was that they heard the assailants communicating with someone on the outside. The video surveillance reveals that four people exited the car and approached the house. While there may have been evidence to the contrary, it is not purely speculative for the affiant to have believed more than just the visible suspects were involved. The video surveillance from inside the home was limited to the second floor. There was at least one person outside the home during the robbery. The Applicants’ position that Detective Constable Whyte was trying to augment the number of people involved is unfounded. More importantly, throughout the ITO Detective Constable Whtye stated:

I know that on the 17th of October 2019, four (4) masked suspects, armed with handguns, and a pry bar, committed a home invasion at [REDACTED], Vaughan. The suspects were observed casing the area approximately three (3) hours prior to committing the home invasion and a fifth suspect acted as a lookout.

[188] Detective Constable Whyte included this statement at least 10 times in the ITO. This belies the suggestion of the Applicants that Detective Constable Whyte was deliberately trying to mislead the issuing Justice by saying there was potentially a fifth suspect either outside or inside the home and the reasons why he thought that. Finally, excision of this statement could not have affected the issuance of the authorization.

Ms. Busby-Brown’s Phone on the Night of the Home Invasion:

[189] The Applicants submit that the omission of the cell tower data from Ms. Busby-Brown’s phone on October 17, 2019 is a material omission. The ITO does not include the fact that Ms. Busby-Brown’s phone was not found in the vicinity of the robbery before, during or after its commission. The ITO does, however, include reference to the fact that Mr. Marakah’s, Mr. Archer-Lyon’s and Mr. Carrington’s phone were in the area of the robbery at the relevant time.

[190] The issuing Justice specifically decided to exclude Ms. Giannone from the Part VI authorization in part because there was no communication from her phone to Mr. Archer-Lyons during the robbery and her phone was not found in the vicinity of the robbery during its commission.

[191] The Applicants submit that the omission of this information from the ITO is material and demonstrates bad faith on the part of the affiant. It is the Applicants’ position that had this information been included in the ITO, authorization for the interception of Ms. Busby-Brown’s communications would not have been granted.

[192] In my view, it would have been obvious to the issuing Justice that there was nothing linking her phone to the home-invasion robbery either through its location or communications with the other suspects. Even if the ITO were amplified to include this information explicitly rather than implicitly, there would have been ample grounds for the communications of Ms. Busby-Brown to be intercepted and to install an audio probe in her car. Ms. Busby-Brown was caught on video purchasing the pry bar used in the robbery. She was in the presence of Mr. Marakah whose phone was in use in the vicinity of the robbery while it was being committed. The residents of the home described hearing a female voice acting as look-out. A car resembling that of Ms. Busby-Brown’s was captured on video outside the home. The fact that Ms. Busby-Brown’s phone was not in use at the time and in the vicinity of the robbery may suggest that she was not there, but the other evidence informs a reasonable belief that she might have been.

The Subversion Issue

[193] The Applicants submit that the overall tenor of the Part VI ITO was not full, fair and frank because Detective Constable Whyte injected his opinion which was at times unsupported and because he acted as an advocate for the issuance of the authorization. It is the submission of the Applicants that the Part VI ITO was drafted in bad faith or at best recklessly.

[194] A Court must remain vigilant to ensure that the judicial process of obtaining search warrants on an ex parte basis are not subverted by the police. As a result, Courts have a residual discretion to quash a search warrant where the affiant or sub-affiant have subverted or attempted to subvert the pre-authorization process through deliberate non-disclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like. See R. v. Paryniuk, 2017 ONCA 87 (Ont. C.A.), at para. 70 (leave to appeal refused [2017] S.C.C.A. No. 81 (S.C.C)).

[195] The complaints raised by the Applicants must be considered in the context of the affidavit as a whole. The residual discretion to set aside an authorization is a high bar. I have already reviewed and assessed each individual alleged misstatement and omission in detail and therefore will not do so again here. The statements in the ITO the Applicants complain of when considered alone or together do not come close to meeting the high bar to set aside the authorization with my residual discretion.

Conclusion:

[196] The Applicants do not have standing to challenge the search of the Home Depot or Instagram records. The tower dump search and subsequent subscriber information query was lawful and did not constitute a breach of the Applicants’ section 8 Charter rights. The Part VI ITO sworn by Detective Constable Whyte, after amplification and excision, contained sufficient reasonable and probable grounds such that the authorization could have issued. The statutory pre-condition of investigative necessity as found by the issuing Justice was met. The other issues raised by the Applicants will be addressed in subsequent reasons.

The Honourable Justice J. Cameron

Date Released: September 4, 2022

COURT FILE NOS.: CR-20-07192, CR-20-07271, CR-20-07148, CR-20-7213, CR-20-07276

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

NOUR MARAKAH, CAYLA BUSBY-BROWN, JAVAN ARCHER-LYONS, JESSE CARRINGTON, DEVON MORRIS, and MARKUS HINDS

Defendants/Applicants

REASONS FOR DECISION

CAMERON, J.

Released: September 4, 2022

[^1]: Issues (viii) and (ix) will be addressed in separate reasons for judgment.