COURT FILE NO.: 206-21
DATE: 2022/10/11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Respondent
– and –
MIRZA ANSAR BEG and TYRELL SIMPSON Applicants
S. Egan, for the Federal Crown
R. Posner, for the applicant, Beg G. Snow, for the applicant, Simpson
HEARD: September 6, 2022 (via Zoom)
RULING
(RE LEAVE TO CROSS-EXAMINE)
Justice A. K. Mitchell
Introduction
[1] Mirza Beg and Tyrell Simpson stand jointly charged with numerous drug trafficking and firearm-related offences. Mr. Beg is charged with an additional 6 counts of possession of drugs for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act (the “CDSA”). The drugs include substantial quantities of crystal methamphetamine, fentanyl, heroin and cocaine seized during execution of warrants at the Toronto residence and the London residence (both defined below).
[2] These charges arise from evidence obtained by police through the execution of a number of judicial warrants. On this Charter application, the various Informations to Obtain (ITO) filed in support of the issuance of the warrants and production orders are challenged with respect to the veracity of the information upon which the issuing justice relied in issuing the warrant.
[3] The applicants jointly allege a breach of their s. 8 Charter rights. The applicants argue their rights were violated because there were insufficient grounds to support the issuance of the various initial production orders, and subsequent authorizations, including the extended general warrants issued on April 17, 2020 and May 22, 2020 and the CDSA search warrant relating to the London residence issued on May 28, 2020 following the applicants’ arrest (collectively, the “judicial warrants”). Specifically, the applicants submit that the information contained in the ITO’s was unconstitutionally obtained and/or was misleading and deceptive and/or failed to meet the standard of reasonable grounds. The applicants argue that the breach of their Charter-protected rights led to police obtaining evidence which ought to be excluded pursuant to section 24(2) of the Charter.
[4] At this preliminary stage, the applicants seek leave to cross-examine the investigating officers/sub-affiants and the affiants of the ITO’s filed in support of the judicial warrants in an effort to elicit evidence that will discredit the pre-conditions for issuance of these warrants.
[5] Specifically, the applicants seek leave to cross-examine the affiant, Detective Constable Adam Gill (“DC Gill”), and the investigating officers, Detective Constable Tim McDermott (“DC McDermott”) and Detective Constable Damon Thorne (“DC Thorne”). Additionally, Simpson seeks leave to cross-examine the affiant, Detective Constable Katherine Bryce (“DC Bryce”).
Background
[6] To provide adequate context for the analysis, it is necessary to set forth a detailed narrative of the events leading to the initial production orders and ultimately to the issuance of the search warrants which resulted in the seizure of the drugs and firearms.
The Homicide
[7] On the evening of April 6, 2019, Matthew Ruscitti (“Ruscitti”) attended a party at a karaoke bar in North York. Ruscitti was accompanied by his roommate, Brandon Kelly, a friend, Ryan Hearn, and Simpson’s “on-again, off-again” girlfriend, Elizabeth Rizzo (“Rizzo”).
[8] In the early morning hours of April 7, 2019, the party was winding down and Rizzo and Ruscitti together with the others were waiting for an Uber to take them home. Upon the Uber arriving, Rizzo got into the front passenger seat. This upset Ruscitti as he wanted the front seat. A physical altercation erupted between Rizzo and Ruscitti. At some point, Rizzo pulled out a kitchen knife and attempted to stab Ruscitti. Ruscitti struck Rizzo in the face causing a minor injury.
[9] Sometime during the altercation, Rizzo called Simpson and he attended to pick her up. Upon arriving, Simpson and Ruscitti faced off and a verbal argument ensued. No physical altercation occurred between the two men.
[10] Simpson and Rizzo left together in the Uber. Ruscitti and a friend departed in a separate vehicle.
[11] As Ruscitti was returning home he called a friend, Michael Reynolds, and told him about the incident involving Rizzo and vowed “to do something about it”. After arriving home, Ruscitti told Reynolds he was going to Simpson’s house (located within 2 kilometers of Ruscitti’s residence) “to throw a brick through his window” and threatening to “shoot up [Rizzo’s] residence”.
[12] This background information was obtained by police through interviews conducted with witnesses (Reynolds, Hearn and Kelly) in April 2019. They were reluctant witnesses and only provided information when confronted with video surveillance and pressed by police during follow-up interviews.
[13] On April 7, 2019, police interviewed Joshua Sanger, an eyewitness who had been walking his dog at approximately 6 a.m. on April 7, 2019. Mr. Sangar told police he heard loud bangs which sounded like a pistol being fired and then observed two men similar in height dressed in black and both wearing hoods, between the gravel and paved part of the parking lot by the nearby recreation centre. Shortly thereafter, Mr. Sangar observed two men along the south side of the rec center but was not certain it was the same two men.
[14] Another eyewitness, William George, was parked at the rear of the rec centre waiting for it to open when he heard what sounded like firecrackers and observed a male on the ground with two other individuals nearby. Mr. George recalls seeing both individuals shoot the man and then run east across a hydro field. He could not discern their ethnicity. Both wore dark hooded clothing, were of slight build and approximately the same height.
[15] A third eyewitness, Randy David, was sitting in his car during the morning of the shooting when he observed two men in their teens or 20’s with darker skin, wearing dark clothing. One was hooded or wearing a hat. The men jogged by him. He did not hear gun shots.
[16] Video surveillance taken between 6:11 and 6:32 a.m. on April 7, 2019, captured two individuals near Ruscitti’s residence, the individuals then walked northeast through 1775 Valley Farm Road. Ruscitti was observed exiting his residence and walking northeast through 1775 Valley Farm Road. The two individuals were then observed running eastbound across the hydro field away from the rec centre.
[17] At the time of his death which occurred at approximately 6:30 a.m. on April 7, 2019, Ruscitti was armed with a large kitchen knife.
[18] The Durham Regional Police Service (“Durham PS”) commenced an investigation into Ruscitti’s death. Durham PS believed that Ruscitti’s homicide was possibly connected to the altercation between Ruscitti and Rizzo earlier in the evening.
[19] Initially, the orders obtained by Durham PS related to the investigation into the death of Ruscitti. However, as investigators gathered evidence pursuant to the various judicial warrants/orders, they developed grounds to believe that the applicants were trafficking in drugs.
2019 Production Orders
[20] On April 24, 2019, Durham PS obtained a production order for records in possession of Uber. DC Bryce deposed the ITO in support of this initial order (the “Uber production order”). In her affidavit, DC Bryce deposed that: “Simpson and Rizzo reside in close proximity to each other, and Simpson resides approximately 1 km from the scene of the shooting.”
The Uber production order yielded information that at 4:30 a.m. Simpson had taken an Uber to the bar where the altercation between Rizzo and Ruscitti took place and further information that Rizzo’s Uber account was used at 5:41 a.m. to take passengers to an area having the postal code of Simpson’s residence.
[21] On May 2, 2019, Durham PS obtained a s. 487.014(3) Code production order with respect to Simpson’s cell phone (the “Simpson production order”). DC Bryce deposed the ITO in support of this production order. At paragraph 39, she states:
It is possible that the altercation between Rizzo and Ruscitti is completely unrelated to his death a short time later, and further investigation is required to determine the connection, if any, between these events. The information being requested in this order will provide important evidence in either case.
The Simpson production order yielded information relating to numerous calls, both incoming and outgoing, on the day of the homicide, including an incoming call from an unidentified number at 5:40 a.m.
[22] On June 5, 2019, Durham PS obtained a s. 487.014(3) Code and production order with respect to numerous cell phone numbers that contacted Simpson’s cell phone as revealed by the Simpson production order, including the cell phone number associated with the incoming call at 5:40 a.m. (the “cell number production order”) Again, DC Bryce deposed the ITO in support of this production order. At paragraph 57, she states:
It is possible that the altercation between Rizzo and Ruscitti is completely unrelated to his death a short time later, and further investigation is required to determine the connection, if any, between these events.
The cell number production order yielded subscriber data for the 5:41 a.m. incoming call. The caller used a cell number registered to Beg.
[23] On June 24, 2019, Durham PS obtained a s. 487.014(3) Code production order with respect to Beg’s cell phone (the “Beg production order”). DC Bryce deposed the ITO in support of this production order. In the ITO she stated that obtaining the information sought “will provide further investigative avenues” and show where Beg had been on the morning of April 7, 2019 and “whether or not he was in the area when the murder of [Ruscitti] took place.”
Events Between July 2 – September 5, 2019
[24] On July 2, 2019, DC Mercer wrote a report which included a summary of the information yielded by the Beg production order as follows:
(i) Between 12:50 a.m. and 4:55 a.m., Beg’s cell phone accessed towers located in Aurora.
(ii) At 5:40 a.m., Beg placed a call to Simpson having a duration of 40 seconds, During this call, his cell phone was accessing cell towers in Scarborough.
(iii) Between 5:46 a.m. and 6:47 a.m. data use revealed [Beg’s] cell phone accessing the tower located at 1710 Kingston Road in Pickering. This is the same tower that Simpson’s phone had been accessing in the same period and is around 800 meters from Simpson’s residence.
[25] On July 3rd, 2019, senior homicide investigators held a meeting to discuss the status of the investigation. On that day, DC McDermott prepared notes containing the following entry:
Discussed not in a position to label anyone a suspect in this investigation to date. Will require completion of several [production orders] and continued investigative strategies to include or excluded people being investigated in this incident. Team in agreement. [emphasis added] and
[26] On July 4, 2019, Beg cancelled his cell phone number.
[27] On August 19, 2019, DC McDermott met with Crown Counsel to discuss the status of the investigation. On August 29, 2019 a Part VI wiretap proposal was completed.
[28] On August 31, 2019, Simpson was investigated while in the driver’s seat of a motor vehicle in Sarnia. A passenger in the front seat identified himself as “Alex Presto”, with the same date of birth as Beg.
[29] On September 5th, 2019, the investigating officers met to discuss the case. DC McDermott’s notes contain the following entry:
Tyrell Simpson identified as a suspect in this investigation. Team advised to make notation in notebooks.
The reasons provided by DC McDermott for concluding that Simpson was the person most reasonably responsible for the homicide of Ruscitti included motive, information obtained from phone records and information obtained from video surveillance. It appears this information was known to DC McDermott on July 3, 2019.
Part VI Authorizations and General Warrants - 2020
[30] In January 2020, DC Gill deposed an ITO in support of the Crown’s application for general warrants, tracking warrants, transmission data recorder warrants, and other orders (the “DC Gill ITO”). At paragraph 17 of the DC Gill ITO it is stated:
Investigators have attempted a number of traditional investigative techniques… Through these techniques police have developed a suspect: Tyrell Simpson, and a person of interest: Mirza Anzar Beg.
At paragraph 279, of the DC Gill ITO it is stated:
I believe that the investigation has exhausted traditional investigative avenues and that no other suspect, save Tyrell Simpson, has been identified. Based on the entirety of this affidavit, I believe that Tyrell was one of the persons who murdered Matthew Ruscitti.
[31] On February 21, 2020, Justice M. Code issued the authorization order (the “Code authorization order”). Among other permitted conduct, the Code authorization order allowed police to track Simpson's phone thereby tracing his movements.
[32] On the evening of March 5th, 2020, police tracked Simpson while he was operating a motor vehicle. Police observed him to make several stops in Pickering and then drive to 525 Adelaide Street West, Suite 1134, Toronto, Ontario (the “Toronto residence”). At that location, police observed Simpson pick up Beg in his vehicle. Beg had in his possession a small suitcase. Simpson drove Beg to different locations. At one point Beg met up with two men, one of whom had a 2012 conviction for drug trafficking. After making a few stops, Simpson dropped off Beg at the Toronto residence. Beg left the suitcase in Simpson's vehicle.
[33] Police suspected that Beg lived at the Toronto residence and conducted surveillance of Beg at that location on several dates in March/April, 2020. Their surveillance resulted in observations of Beg engaging in short meetings and bag exchanges which grounded their belief that Beg was a drug trafficker.
[34] On March 12, 2020 police obtained a transmission data warrant and obtained Beg’s new cell number (registered to “Alex Presto”).
[35] On April 17, 2020 police obtained the order of O’Connell J. renewing/extending the Code authorization order expanded to include drug trafficking on the list of offences under investigation (the “April 17, 2020 extended warrant”).
[36] On April 21, 2020, police executed the April 17, 2020 extended warrant at the Toronto residence and seized controlled substances and personal items belonging to Beg. Also pursuant to the April 17, 2020 extended warrant, police tapped Beg’s phone calls and intercepted communications in the Toronto residence.
[37] Based on information obtained from intercepting Beg’s communications, police learned that Beg had rented an apartment located at 405 Waterloo Street, Suite 2501, London, Ontario (the “London residence”). On May 22, 2020, police obtained an order of O’Connell J. further renewing/extending the Code authorization order (the “May 22, 2020 extended warrant”). Acting under the authority of May 22, 2020 extended warrant, police searched the London residence and seized additional controlled substances and drug paraphernalia.
[38] On May 28, 2020 shortly after the applicants’ arrest, police obtained a search warrant for the London residence issued pursuant to the CDSA (the “CDSA warrant”) and seized a loaded Glock 19 semi-automatic handgun, substantial quantities of cocaine, fentanyl, crystal methamphetamine, an array of ammunition and $25,000 in Canadian currency.
Positions of the Parties
[39] The applicants take the position that the various ITO’s filed by DC Bryce in support of the production orders lacked reasonable grounds to believe that an offence had been committed and that the documents/data being requested would afford evidence respecting the commission of that offence as required by s. 487.014 of the Code.
[40] The applicants take the further position that DC Gill’s ITO failed to meet the standard of reasonable grounds required to meet the “best interests of the administration of justice” test contained in s. 186(1)(a) of the Code.
[41] The applicants argue that from their review of the Crown’s disclosure to date, between July 3, 2019 and September 5, 2019, there was no additional information obtained by police during this time which explains their decision to upgrade Mr. Simpson to a suspect in the homicide investigation. The applicants submit that DC Gill’s ITO is misleading and potentially intentionally deceptive as to Mr. Simpson’s status as a suspect so as to secure a Part VI authorization of Mr. Simpson and persons associated with him.
[42] The applicants seek to cross examine members of the investigating team and, specifically DC McDermott, the lead investigating officer, as to the basis for upgrading Mr. Simpson’s status as an “a person incapable of being named as a suspect” based on the speculative nature of the information in hand at July 3, 2019, to a named suspect on September 5, 2019. The applicants point to the evidentiary record which they submit contains no additional information obtained by police during this time.
[43] The applicants submit that in the aftermath of the July 3, 2019 meeting the case was “going cold” and was “dying on the vine”. The applicants believe that at their meeting of August 19, 2019 the investigating officers and the Crown Attorney concluded that in order to solve the murder a Part VI application would be necessary. And, furthermore, that in order to obtain such a broad-sweeping judicial authorization, it would be necessary to name a suspect. That is, unless the affiant of the ITO (DC Gill) was able to depose that the subject of the wiretap authorization (i.e., Simpson) was a suspect, grounds would not exist to support the issuance of the authorization.
[44] The applicants argue that any connection between Simpson and the Ruscitti murder was speculative at best and at no point did the tenuous and speculative nature of that connection change. The applicants submit that the record as it currently stands is silent as to the basis for the police doing an “about-face” and formally identifying Simpson as a suspect on September 5, 2019.
[45] The applicants intend to argue on the Charter application that the ITO was intentionally deceptive and misleading. They submit that DC Gill deposed that Simpson was a suspect knowing police did not have information sufficient to identify Simpson as a suspect in the homicide investigation. The applicants submit this was an abuse of process and wish to explore their theory through cross-examination.
[46] In response, Crown counsel submits that leave should be denied and the application dismissed. Ms. Egan argues that police retain an absolute and unfettered discretion to name any individual as a suspect in an investigation and do not need a “reasonable (or any) grounds” to do so. That is, police are free to do a “volte-face” without any additional information to support their change in the approach to the investigation.
[47] Furthermore, the applicants are seeking only to attack the facial validity of the various ITO’s and, thus, no further evidence obtained through cross-examination is relevant for purposes of the Garofoli[^1] review.
Analysis
[48] The scope and nature of the many judicial warrants and their “fruits” are relevant to the issues on the Charter application because the issuance of the early production orders and the information obtained therefrom had a cascading effect which ultimately culminated in the issuance of the extension orders with respect the Toronto residence and the London residence and the CDSA warrant. These latter orders resulted in the seizure of drugs and firearms and, ultimately, charges being laid against the applicants.
[49] The applicants rely on the decision in R. v. Paryniuk[^2] where the court held that an applications judge retains a residual discretion to set aside a properly issued search warrant or authorization where satisfied that the conduct of the police has been subversive of the preauthorization process leading to the issuance of the search authority.
[50] At paras. 69 and 70, Watts J.A. writing for the court in Paryniuk states:
69 What is clear, however, is that previous authority in this court has recognized a residual discretion to set aside a warrant despite the presence of a proper evidentiary predicate for its issuance where police conduct has subverted the preauthorization process through deliberate nondisclosure, bad faith, deliberate deception, fraudulent misrepresentation or the like: Colbourne, at para. 40; R. v. Kesserling (2000), 2000 2457 (ON CA), 145 C.C.C. (3d) 119 (Ont. C.A.), at para.31; Lahaie, at para. 40; Vivar, at para. 2. Courts of appeal in other provinces have reached the same conclusion: Bacon, at para. 27; Evans, at paras. 17, 19; R. v. McElroy, 2009 SKCA 77, 337 Sask. R. 122 (Sask. C.A.), leave to appeal refused, [2009] S.C.C.A. No. 281 (S.C.C.), at para. 30; Morris, at paras. 90, 92.
70 These same authorities, both in Ontario and elsewhere, describe the standard to be met to invoke this discretion as high. Indeed, some require that the conduct amount to an abuse of process: Vivar, at para. 2; Bacon, at para. 27.
[51] As the Supreme Court held in R. v. Pires and Lising[^3], the test for leave to cross-examine an affiant /sub-affiant in support of a Garofoli review is not an onerous one. Leave will be granted if there is a reasonable likelihood that cross-examination will assist the Court to determine a material issue.
[52] Based on the authority provided in Paryniuk, I am persuaded that, despite the apparent facial validity of the DC Gill ITO, I retain the residual discretion to set aside the Code authorization order (and all further orders made in reliance thereon) should the applicants succeed in establishing that the warrant was issued based on conduct of the police which was subversive of the preauthorization process.
[53] The Crown’s position may very well carry the day in the end. However, at this preliminary stage I am not prepared to rule on whether any police conduct (now known or obtained through cross-examination) is reasonable and, if not reasonable, meets the high standard necessary to invoke the court’s residual discretion. That issue is one to be decided on the Charter application, not now.
[54] Accordingly, leave is hereby granted to the applicants to cross-examine DC McDermott, DC Thorne and DC Gill with respect to the reason for their change in position and, specifically, their decision to identify Simpson as a suspect in the Ruscitti homicide investigation on September 5, 2019. However, leave is denied to cross-examine DC Bryce. Any Charter challenge with respect to the ITO’s deposed by DC Bryce in support of the various production orders does not involve the exercise of the court’s residual discretion and is restricted to a facial validity Garofoli review.
[55] At the court’s request, counsel for Simpson filed proposed areas of cross-examination by way of supplementary material. The areas of questioning proposed for DC McDermott, DC Thorne and DC Gill are acceptable (and not limited thereto) save and except that questions relating to the discussions between any of these police officers and Crown counsel during their meeting of August 19, 2019 is expressly prohibited on the basis of privilege.
“Justice A.K. Mitchell”
Justice A. K. Mitchell
Released: October 11, 2022
[^1]: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 (“Garofoli”).
[^2]: 2017 ONCA 87 (“Paryniuk”) at para. 62.