COURT FILE NO.: CR-22-00000016-0000 CR-22-00000118-0000 CR-22-00000524-0000 DATE: 20230404
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Respondent – and – RAMIN RAYEGAN-TAFRESHI, THAVYSAY PHAENGNAVONG, SARAH NOlan, JULIA BELLISSImo and KIMYHEL TEWOLDE Applicants
Somboun Tsai, for the Respondent Ravin Pillay and Deepak Paradkar for Ramin Rayegan-Tafreshi Sharon Jeethan for Thavysay Phaengnavong Stephanie DiGiuseppe and Harshi Mann, for the Sarah Nolan Riaz Timol for Julia Bellissimo Christian Pearce for Kimyhel Tewolde
HEARD at Toronto: March 27, 2023
reasons for decision
Ruling #2: Application for Leave to Cross-examine the Affiants (RAYEGAN-TAFRESHI)
DAVIES J.
A. Overview
[1] In January 2020, the York Regional Police and the Toronto Police Service started a joint investigation into a firearms and drugs distribution network in the Greater Toronto Area. During the investigation, an undercover officer bought a total of six firearms and more than $200,000 of cocaine and fentanyl from various people.
[2] In July 2020, the undercover officer was introduced to Matthew Abramczyk. Between July and October 2020, the undercover officer bought six firearms, four ounces of cocaine and seven ounces of fentanyl from Mr. Abramczyk. In September 2020, Mr. Abramczyk introduced the undercover officer to Victor Miceli who is believed to be Mr. Abramczyk’s cocaine supplier. The undercover officer started dealing with Mr. Miceli directly. On October 26, 2020, Mr. Miceli sold the undercover officer half a kilogram of cocaine. Later that same day, the undercover officer bought another four ounces of cocaine from Mr. Miceli. On December 8, 2020, Mr. Miceli sold the undercover officer another half kilogram of cocaine. The police believed Mr. Rayegan-Tafreshi supplied the cocaine to Mr. Miceli on October 26, 2020 and December 8, 2020.
[3] The police obtained three wiretap authorizations during their investigation. The first wiretap authorization was issued on November 24, 2020. Mr. Rayegan-Tafreshi was named in the first authorization. The second authorization was issued on January 20, 2021 extending the initial authorization. A third authorization was issued on January 29, 2021. Mr. Rayegan-Tafreshi was also named in the third authorization.
[4] In December 2020, the police obtained a general warrant that authorized four covert entries into Mr. Rayegan-Tafreshi’s apartment. During the first covert entry, the police found 225 grams of cocaine, five to seven pounds of cannabis, two hydraulic presses, a money counter and an alleged debt list. During the second covert entry, the police found half a kilogram of cocaine, 5000 Xanax pills and three pounds of cannabis.
[5] Mr. Rayegan-Tafreshi was arrested on March 18, 2021 along with most of the targets of the investigation. The police also searched Mr. Rayegan-Tafreshi’s apartment that day pursuant to an omnibus search warrant.
[6] Mr. Rayegan-Tafreshi has brought an application to exclude all the evidence obtained from the wiretap authorizations, the covert entries into his apartment and the search of his apartment on March 18, 2021.
[7] Mr. Rayegan-Tafreshi argues the first wiretap authorization is invalid because the information to obtain (ITO) did not establish investigative necessity. Mr. Rayegan-Tafreshi also argues the police did not comply with the terms of the wiretap authorization when it was implemented. Mr. Rayegan-Tafreshi argues that if the first wiretap authorization was invalid, the evidence obtained from that authorization must be excised from the ITOs for the second and third wiretap authorizations, the general warrant and the omnibus search warrant application and those authorizations would also be invalid.
[8] Even if the first wiretap authorization is valid, Mr. Rayegan-Tafreshi argues that the general warrant is invalid because it does not contain reasonable grounds to believe evidence would be found in his apartment. He also argues the police did not comply with the terms of the general warrant when they covertly entered his apartment.
[9] On this motion, Mr. Rayegan-Tafreshi seeks leave to cross-examine the affiant of the ITO in support of the first wiretap authorization, Detective Constable Leahy, on the following issue:
The failure to meet the requirement of investigative necessity: the availability of other investigative avenues, the utility of UC01 [undercover officer 1], the availability of UC02 [undercover officer 2], the intended use of covert video cameras, the failure to meaningfully investigate Abramczyk’s suppliers and the investigative plan.
He also seeks leave to cross-examine the affiant of the ITO in support of the general warrant, Detective Constable Kwan, on the following issue:
The failure to address reasonable grounds to believe that evidence will be obtained within the place to be searched in the ITO in support of general warrant.
[10] For the following reasons, I grant Mr. Rayegan-Tafreshi’s application for leave to cross-examine DC Leahy on the issue of investigative necessity in relation to the first wiretap authorization but deny his application for leave to cross-examine DC Kwan in relation to the general warrant.
B. Application for leave to cross-examine the affiant of the ITO in support of the first wiretap authorization.
[11] Before a wiretap authorization can be granted, the issuing judge must be satisfied there are reasonable and probable grounds to believe an offence has been committed and the authorization will afford evidence of that offence: R. v. Duarte, [1990] 1 S.C.R. 30. The issuing judge must also be satisfied that “other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using other investigative procedures”: Criminal Code, s. 186(1)(b). In other words, the affiant must show there is no reasonable alternative means to advance the investigative goals other than intercepting private communications: R. v. Araujo, 2000 SCC 65 at para. 29. Because wiretapping is so intrusive, the test for establishing investigative necessity is a stringent one: R. v. Williams, [2003] O.J. No. 5122 (ONCA) at para. 14.
[12] Mr. Rayegan-Tafreshi argues that the ITO sworn by DC Leahy in support of the first wiretap authorization is invalid because there were other investigative techniques that could have been pursued to advance the investigative goals. Mr. Rayegan-Tafreshi seeks leave to cross-examine DC Leahy the availability and potential efficacy of other investigative techniques.
[13] Mr. Rayegan-Tafreshi does not have the right to cross-examine DC Leahy. He must show the proposed cross-examinations is necessary to enable him to make full answer and defence: R. v. Garofoli at para. 83. Cross-examination will be necessary if it is likely to elicit evidence tending to discredit the statutory preconditions for the wiretap authorization, here the requirement to show investigative necessity: R. v. Garofoli, at para. 88, R. v. Phan, 2020 ONCA 298 at para. 68. Cross-examination may be granted to support a claim of either facial or sub-facial invalidity: R. v. Pham at para. 33.
[14] The Crown argues that the ITO satisfies the investigative necessity requirement and, therefore, there is no basis to grant leave to cross-examine DC Leahy. The question at this stage is not whether the ITO disclosed a basis for the issuing justice to have found investigative necessity. The question is whether the proposed cross-examination of DC Leahy is likely to elicit information that could undermine basis on which the issuing justice could have found investigative necessity. I am satisfied cross-examination of DC Leahy will elicit evidence relevant to the validity of the warrant.
[15] Mr. Rayegan-Tafreshi relies solely on the content of the ITO to support his request for leave to cross-examine DC Leahy. The Supreme Court of Canada recognized that, in some cases, a defendant can establish the basis for leave to cross-examine the affiant based on the affidavit alone: R. v. Pires; R. v. Lising, 2005 SCC 66 at para. 44. I am satisfied the ITO provides a sufficient basis to grant Mr. Rayegan-Tafreshi leave to cross examine on the issue of investigative necessity without other extrinsic evidence because DC Leahy made several conclusory statements about investigative necessity. She also made arguably inconsistent statements about investigative necessity and failed to address alternative investigative techniques.
[16] In the ITO, DC Leahy summarized the investigative techniques that had been used, including surveillance, undercover officers and confidential sources, forensic analysis of the firearms purchased by the undercover officer, production orders, search warrants, general warrants, transmission data records and tracking warrants. DC Leahy noted that those techniques had been successful in identifying several people involved in the distribution of drugs and firearms. But DC Leahy concluded, “these techniques alone have not and are not likely to reveal the identities and full scope of the entire drug and gun trafficking network to which ABRAMCZYK has access.” DC Leahy opined that the police would be only able to obtain the evidence necessary to locate and successfully prosecute everyone involved in Mr. Abramczyk’s network by intercepting private communications. DC Leahy also opined, “it is unlikely that the continued use of an undercover operator or traditional methods of investigation without the ability to intercept private communications, would capture the full picture and determine who the main supplier is of the illicit substances and firearms.”
[17] DC Leahy explained the limitations of some investigative techniques that had been used. She also explained why, in her view, those techniques would not be successful in further advancing the goals of the investigation, which were to identify Mr. Abramczyk’s drug and firearm suppliers, to dismantle Mr. Abramczyk’s network and to gather enough evidence to prosecute everyone involved with Mr. Abramczyk. Many of DC Leahy’s statements about the potential efficacy of different investigative techniques are conclusory in nature. Some of her statements are also potentially misleading. For example, DC Leahy states “the use of traditional surveillance has been conducted in this investigation; however, it has not been useful in attaining any of the goals of the investigation.” This is arguably untrue or an exaggeration because the ITO also discloses that the police identified Mr. Rayegan-Tafreshi as Mr. Miceli’s supplier using traditional surveillance techniques.
[18] DC Leahy did not explain why other, less intrusive measures that were being contemplated would not suffice to advance their investigative goals. For example, in addition to seeking a wiretap authorization, DC Leahy sought authorization to install covert cameras in the hallways and common areas of the condominium buildings where Mr. Abramczyk, Mr. Rayegan-Tafreshi and Mr. Miceli lived. In seeking this authorization, DC Leahy wrote,
the ability to remotely monitor the activity of persons entering and exiting the respective apartments and meeting the targets in common areas, will assist the investigators in identifying drug and firearms suppliers. It will also assist in identifying when items are taken into or removed from these locations so investigators can make arrests or execute warrants.
[19] DC Leahy’s statements about the anticipated use of covert cameras is arguably inconsistent with her statement that the police would only be able to obtain sufficient evidence to identify those supplying drugs and firearms to Mr. Abramczyk’s if they could intercept the private communications of the nine named individuals. DC Leahy did not explain in the portion of the ITO dealing with investigative necessity why the covert cameras would not be sufficient to advance their investigative goal of identifying Mr. Abramczyk’s suppliers or why that investigative step should not have been taken before wiretap authorizations were sought.
[20] DC Leahy also sought authorization to covertly provide Mr. Abramczyk with a cellular phone capable of intercepting his communications on encrypted, third-party applications that cannot be intercepted through traditional methods. DC Leahy believed that Mr. Abramczyk was using encrypted messaging applications to communicate with his suppliers. Those messages were not captured on Mr. Abramczyk’s phone records, which the police obtained with a production order. DC Leahy did not explain why an authorization to use an “On Device Investigative Tool” on Mr. Abramczyk’s device alone – without intercepting the private communications of eight other individuals – would be insufficient to identify his suppliers and dismantle his network.
[21] I am satisfied that Mr. Rayegan-Tafreshi has established that cross-examination of DC Leahy on her conclusory statements and potentially misleading statements could elicit evidence that would undermine the existence of investigative necessity: R. v. Pires, at para. 44; R. v. Williams, at para. 13. Cross-examination on the potential efficacy of other available investigative techniques could also elicit evidence that would undermine the existence of a statutory precondition for issuing the wiretap authorization.
[22] Mr. Rayegan-Tafreshi’s application for leave to cross-examine DC Leahy on the sufficiency of the grounds to establish investigative necessity is granted.
C. Application to cross-examine the affiant of the ITO in support of the general warrant.
[23] On December 31, 2020, the police obtained a general warrant to covertly enter Mr. Rayegan-Tafreshi’s residence.
[24] Mr. Rayegan-Tafreshi argues the general warrant is invalid for several reasons. First, he argues the ITO sworn by Detective Constable Kwan in support of the general warrant does not disclose reasonable and probable grounds to believe evidence of the offences under investigation would be found in Mr. Rayegan-Tafreshi’s apartment.
[25] Second, Mr. Rayegan-Tafreshi argues that the general warrant usurps the constitutional requirement for prior judicial authorization by improperly delegating to the police the determination of whether there were reasonable and probable grounds to believe evidence of the offences would be found in his apartment when the search occurred. The general warrant allowed the police to covertly enter Mr. Rayegan-Tafreshi’s residence four times over a 60-day period. The police could record information on any electronic device, copy any document and seize or sample any controlled substance found during the cover entries. The police could enter Mr. Rayegan-Tafreshi’s residence at any time, day or night. However, the police could covertly enter and search Mr. Rayegan-Tafreshi’s residence only if they had reasonable grounds to believe that evidence of the offences would be found in his residence at the time they entered. Mr. Rayegan-Tafreshi argues that allowing the police to decide whether reasonable and probable grounds existed when they were going to execute the general warrant undermines the constitutional requirement for prior judicial authorization.
[26] Finally, Mr. Rayegan-Tafreshi argues that the police did not have reasonable and probable grounds to believe evidence would be found in his apartment when they covertly entered his residence on January 6, 2021 and February 24, 2021. He argues that even if the general warrant was valid, the police did not comply with the conditions of the general warrant and, therefore, the covert searches were unreasonable.
[27] Mr. Rayegan-Tafreshi seeks leave to cross-examine DC Kwan on the first issue only, namely “the failure to address reasonable grounds to believe that evidence will be obtained within the place to be searched in the ITO in support of [general warrant].” Mr. Rayegan-Tafreshi wants to cross examine DC Kwan on whether he knew the grounds in the ITO were insufficient. Mr. Rayegan-Tafreshi also wants to cross-examine DC Kwan on whether he knew that conclusory statements are insufficient to establish reasonable and probable grounds to believe evidence would be found in the location to be searched.
[28] The Crown argues that the proposed cross-examination will not elicit evidence that is likely to undermine the grounds for issuing the general warrant. The Crown argues that Mr. Rayegan-Tafreshi can advance his argument about the sufficiency of the grounds without cross-examining DC Kwan. I agree.
[29] Mr. Rayegan-Tafreshi did not adduce any evidence on this motion for leave to cross-examine DC Kwan to suggest the ITO in support of the general warrant contains any misleading, incomplete or inaccurate statements. He adduced no evidence that DC Kwan omitted material information that would undermine the grounds for issuing the general warrant. Rather, Mr. Rayegan-Tafreshi argues the general warrant is facially invalid because it does not disclose reasonable and probable grounds to believe evidence would be found in his residence. Cross-examining DC Kwan on whether he knew there were insufficient grounds in the ITO will not assist me. Similarly, cross-examining DC Kwan on his understanding of the law in relation to what is or is not sufficient to establish grounds in an ITO will not elicit evidence that will undermine the grounds for the issuance of the warrant. What DC Kwan knew or believed about the sufficiency of the grounds will not change my analysis of whether the ITO contains reasonable and probable grounds to believe evidence of the offences under investigation would be found in Mr. Rayegan-Tafreshi’s residence. Mr. Rayegan-Tafreshi can fully advance his facial attack on the general warrant through legal argument. Cross-examination of DC Kwan is not necessary to Mr. Rayegan-Tafreshi’s ability to make full answer and defence.
[30] Mr. Rayegan-Tafreshi’s application to cross-examine DC Kwan is dismissed.
Davies J.
Released: April 4, 2023