COURT FILE NO.: CR-23-30000172 DATE: 20230727
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – JEZIAH BLAIR TAYLOR
Counsel: S. Byrne, for the Crown C. Bottomley and J. Belton, for Jeziah Blair-Taylor
HEARD: 20-23 June 2023
S.A.Q. AKHTAR J.
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] The applicant is charged with two counts of first degree murder and one count of attempted murder arising out of incidents that occurred on October 1, 2019.
[2] Part of the police investigation into the offences included the obtaining and use of a judicially authorised warrant to intercept the communications of a number of parties including the applicant. He challenges the warrant arguing that it violated his s. 8 rights under the Canadian Charter of Rights and Freedoms and seeks any communications resulting from it be excluded from his trial pursuant to s. 24(2) of the Charter.
[3] At the end of submissions, I dismissed the application. These are my reasons for doing so.
The Crown Allegations
[4] On October 1, 2019 there were three related shootings in City of Toronto. The Crown alleges that the applicant, Jeziah Blair-Taylor, and his two accomplices, Jatorri Williams and Eric Rowe were the perpetrators.
[5] The Crown alleges the three events unfolded as follows:
- 8:11 p.m.: The applicant, Rowe and Williams chased and shot a 16-year-old boy, Adrian Seelaback as he played a video game whilst walking along Venetian Crescent East Street in North Toronto. The victim sustained a shot to his hand but he managed to escape his assailants and survived (the “first shooting”).
- 8:46 p.m.: A second series of shots were heard near 2000 Sheppard Avenue West (the “second shooting”).
- 9:27 p.m.: The applicant, Rowe and Williams shot and killed Delaunte Bryant in the courtyard of 306 Grandravine Drive. Somehow, Rowe was struck in the back by one of his accomplices and died at the scene. Video evidence showed that as Rowe lay dying on the street, his two accomplices relieved him of his phone and firearm (the “third shooting”).
[6] When police investigated, they obtained Rowe’s phone records which revealed that on 1 October 2019, between 5:38 p.m. and 6:28 p.m., his mobile phone travelled from the eastern part of the Greater Toronto Area to the downtown core. Thereafter, it moved to the area of Finch Avenue West between Dufferin and Bathurst Streets where it was recorded as registering at a nearby cell tower at 7:44 p.m. As noted, the first shooting occurred half an hour later. Rowe’s phone did not transmit a signal again until 9:54 p.m. when it was recorded as being in the area of Highways 401 and 404.
[7] Police also found that the last phone number that Rowe had called was 437-236-9382 (“9382”). The Crown’s position is that on 1 October 2019 this number belonged to the applicant.
[8] According to Rowe’s phone records, his phone had contact with 9382 on three occasions on 1 October 2019: at 5:07 p.m., 6:28 p.m. and 7:14 p.m. Further information showed that the 9382 device travelled from the eastern part of Toronto towards the vicinity of the shootings shortly after 5:39 p.m. The 9382 number also registered at the cell tower in the area of the second shooting at around 7:07 p.m. This is also close to the location of the first shooting which happened at 8.11 p.m.
[9] There was no activity on the 9382 phone between 7:54 p.m. and 8:49 p.m., the period of time which encompass the first shooting. Between 8:49 p.m. and 9:28 p.m. 9382 could only be located at towers within the immediate areas of the second and third shootings. The applicant’s device did not register again until 9:48 p.m. when it was found to have pinged off a tower located in the area of Dufferin Street and Highway 401. Rowe’s device appeared to register 6 minutes later at a tower located between Highways 401 and 404.
[10] On 2 October 2019, the 9382 number was changed to 365-688-3863 (“3683”). Records show that the new number was registered to the same device as 9382.
[11] On 11 October 2019, the investigating officer, Detective Sergeant Joel Kulmatycki of the Toronto Police Service Homicide Squad swore an information to obtain a wiretap warrant (“ITO”). On 14 October 2019 he tendered a supplementary affidavit to correct errors that had been present in his original ITO. On the same day, Forestell J. authorised the interception of communications of a number of parties including the applicant.
[12] On 28 October 2019, police arrested the applicant at a residential address in Sudbury. A black iPhone with the 3863 number was seized.
[13] On 6 November 2019, police executed a search warrant on a white Chrysler 200 vehicle which the applicant had been seen driving on prior occasions. The search of the vehicle resulted in the discovery of Rowe’s phone and car keys concealed in the dashboard with a tube of prescription medication bearing the applicant’s name as well as a bill of sale in the name of Behista Hashemi, the applicant’s girlfriend.
Positions of the Parties
[14] Mr. Bottomley, counsel for the applicant contends that Detective Kulmatycki omitted and misrepresented material facts in the ITO, namely the location of the applicant’s home address in which he was forced to reside because of a court order. This information, says the applicant, would have fatally undermined any inference that could be drawn from the location of his mobile phone on the night of the shootings. The omission of this material fact requires the excision of all information relating to the whereabouts of the phones and cell tower data. Without this material, there could be no grounds to justify the authorisation of the warrant.
[15] Further and separate from the phone issue, Mr. Bottomley submits that the ITO contains information from redacted confidential sources which have not been properly investigated or corroborated. As a result the Crown cannot rely on these sources and any information derived from them must also be excised when considering the question of whether the warrant could have issued. Any remaining information would not be enough to pass the threshold test for review.
[16] On the other hand, Mr. Byrne, on behalf of the Crown insists that Det. Kulmatycki made no omissions or misrepresentations of material facts in the ITO. The Crown submits that the items alleged to have been omitted can actually be found in the ITO. Moreover, even if this court finds that the applicant’s home address was absent and a material fact, the court must consider its impact on the ITO as a whole. When that information is taken into account with the rest of the ITO, the warrant could still have issued.
LEGAL PRINCIPLES
The Legal Requirements
[17] Section 186(1) of the Criminal Code, R.S.C. 1985, c. C-46 provides that a judge may authorise the interception of private communications if it would be in the best interests of the administration of justice to do so and that the investigative necessity of such a procedure has been demonstrated.
[18] The “best interests of the administration of justice” has been interpreted to mean that a specific crime has been committed and that the interception of private communications will afford evidence of the specific crime: R. v. Garofoli, [1990] 2 S.C.R. 1421, at pp. 1443-1445; R. v. Mahal, 2012 ONCA 673, 113 O.R. (3d) 209, at para. 40.
[19] Significantly, s. 186(1) does not require these conditions be met with respect to each person who is named in the authorisation and whose communications are to be intercepted. Rather, the conditions apply to the authorisation as a whole: Mahal, at para. 7.
Review of the Warrant
[20] It is trite law that the review of a judicially authorised warrant does not involve a de novo hearing of the validity of the warrant where the reviewing judge substitutes their view for that of the authorising judge. The review consists of an evaluation of the record which was before the authorising judge to determine whether it disclosed sufficient evidence upon which the judge could have issued the authorisation: Garofoli, at p. 1452; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 51; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 40; R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 99. Any facts that the affiant knew or ought to have known were inaccurate must be excised from the ITO and cannot be considered: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at paras. 119-121.
The Test for Naming a Target
[21] Section 186(4)(c) requires the authorisation to “state the identity of persons, if known, whose private communications are to be intercepted”. In Mahal, at para. 70, the court described this requirement as containing two components: identity and investigative assistance. When both exist, the target is defined as a “known” person and must be described in that manner in the authorisation to intercept communications: R. v. Chesson, [1988] 2 S.C.R. 148, at p. 164.
[22] There is a long line of jurisprudence that confirms that the threshold for naming a target is modest: Mahal, at para. 71; R. v. Abdullahi et al, 2014 ONSC 6036, at para. 22; R. v. Abdirahim, 2013 ONSC 7420, at para. 33; R. v. Schreinert (2002), 165 C.C.C. (3d) 295 (Ont. C.A.), at para. 43. Mere suspicion is not enough to “name” a target: R. v. Hafizi, 2016 ONCA 933, at para. 46.
[23] However, the ITO need not provide evidence that the target is involved in criminality or the commission of the offence being investigated: Mahal, at para. 71; Riley, at paras. 214-5; Abdirahim, at para. 50; R. v. Finlay and Grellette (1985), 52 O.R. (2d) 632 (C.A.), at p. 72; R. v. Samson (1983), 44 O.R. (2d) 205 (C.A.), at pp. 201-202.
[24] Nor does the ITO need disclose that there are reasonable grounds to believe that the interception of the named person’s communications will actually provide evidence of a listed offence. All that is necessary is that “[i]nvestigators must know a person's identity and have reasonable grounds to believe that the interception of that person's private communications may assist in the investigation of an offence to trigger the identification or "known person" requirement”: R. v. Beauchamp, 2015 ONCA 260, at para. 105; see also: Mahal, at para. 71.
[25] The question for the reviewing judge is to determine whether the information in the ITO sufficiently links the named target to the offences investigated, or others involved in the offences, to conclude that the interception of their communications could assist in the investigation of those offences: R. v. Nugent (2005), 193 C.C.C. (3d) 191 (Ont. C.A.), at paras. 8-9.
COULD THE WARRANT HAVE ISSUED?
The ITO
[26] Although the ITO contained information from a confidential informant, the Crown asks this court to follow the Step 5 procedure in Garofoli to determine whether the warrant could have issued. Step 5 allows a review of the redacted version of the ITO to see whether it can support the authorization without reference to material hidden from view. If so, there is no need to move to Step 6, which would require consideration of the unredacted ITO with the provision of judicial summaries. In the circumstances, I agreed to the Crown’s suggestion.
[27] The Crown relies upon the following items of evidence contained in the ITO to support its position that the wiretap warrant would afford evidence of the offences that were set out in the ITO:
- Rowe’s mobile phone number at the time of the shootings was 437-217-7224.
- Cell tower records show that on October 1, 2019, Rowe’s phone moved from the east end of the Greater Toronto Area to the downtown core between 5:38 p.m. and 6:28 p.m.
- The phone subsequently moved to the area of Finch Avenue West between Dufferin Street and Bathurst Street arriving at that location at around 7:44 p.m.
- The first shooting, of Adrian Seelaback on Venetian Crescent, occurred at around 8:11 p.m. within 30 minutes of Rowe’s phone turning up in the area.
- Rowe’s body was left at Grandravine Drive. However, video evidence showed that his fellow shooters removed his gun and phone.
- Rowe’s phone did not subsequently register at a cell tower until 9:54 p.m. in the vicinity of Highways 401 and 404.
- Rowe’s device had contact with the applicant’s number at 5:07 p.m., 6:28 p.m., 9:14 p.m., and 9:44 p.m. The latter was the last contact that Rowe’s phone made with another device before the first shooting at Venetian Crescent.
- The 9382 number was linked to the applicant from a document describing a self-reported collision with another vehicle on September 12, 2018.
- The 9382 number was registered in the name of “Jamal Blank” of 2000 Sheppard Avenue West, the applicant’s home address.
- The applicant was a known associate of Rowe.
- The applicant’s phone travelled from the east end of the GTA to the areas of the shootings shortly after 5:39 p.m. on 1 October 2019.
- At 7:07 p.m. the applicant’s phone registered at a cell tower in the area where the first shooting would occur 60 minutes later and the second shooting would happen 90 minutes later.
- There was no activity on the applicant’s number between 7:54 p.m. and 8:49 p.m., which is the time period when the first shooting occurred (at 8:10 p.m.)
- At 9:28 p.m., the applicant’s phone was located in the immediate areas of the second and third shootings.
- The applicant’s device registered at a cell site at 9:48 p.m. in the area of Dufferin Street and Highway 401, some six minutes before Rowe’s device registered at a tower located in the areas of Highways 401 and 404.
- The day after, on 2 October 2019, the applicant’s number of 9382 was changed to 365-688-3863 as evidenced by the fact that the IMEI, unique to the applicant’s phone, was associated with both numbers.
The Affiant
[28] Mr. Bottomley, on behalf of the applicant, argues that Det. Kulmatycki misrepresented the applicant’s role in the shootings by failing to reference (1) his home address of 23 Thwaite Avenue in the ITO, (2) the fact that the residence was situated in close proximity to the shootings, and (3) the applicant was under house arrest at the time of the shootings.
[29] On this basis, I granted Mr. Bottomley leave to cross-examine Det. Kulmatycki on the narrow issue of whether the applicant’s address was deliberately omitted from the ITO.
[30] Det. Kulmatycki agreed that he knew that the applicant lived at 23 Thwaite Avenue and was on house arrest at that address at the time of the shootings. He knew the address backed onto 1901 Sheppard Avenue West and was aware that it was close to the scene of the shootings.
[31] However, contrary to the applicant’s assertions, Det. Kulmatycki pointed out that his home address was actually identified in the ITO because the police were seeking authorisation to intercept communications to the applicant’s landline.
[32] Det. Kulmatycki conceded that he had not put the applicant’s residence on the maps that were part of the ITO representing the shootings and did not explicitly state the specific address residence when discussing the locations or the position of the mobile phones. Det. Kulmatycki told the court that the significance of the phones was their movement and not just the fact that they were at or near the shooting locations.
Should the Information be Excised?
[33] Mr. Bottomley submits that Det. Kulmatycki was obliged to be full, frank and fair in providing the information used in the ITO. This would include information that might (1) undermine the probability that the offence had been committed, (2) undercut the probability that evidence would be found at the place to be searched, and (3) impact the reliability of information in the ITO relied upon by the affiant to justify the warrant: R. v. Booth, 2019 ONCA 970, at para. 56.
[34] He argues that by omitting the specific fact that the applicant lived in the vicinity of the shootings, Det. Kulmatycki failed to discharge that obligation because the information withheld from the ITO would have shown there was an innocent explanation for the phone’s location.
[35] Mr. Bottomley continues that the maps included in the ITO which detailed the locations of the shootings and the phones were also misleading because none showed the applicant’s residence.
[36] These omissions, says Mr. Bottomley, artificially elevated the grounds to obtain the warrant, as the location of 9382 was a major piece of incriminating evidence. Had this evidence been included, says Mr. Bottomley, it would have fatally undercut the cell tower data to render it irrelevant.
[37] Given the extent of Det. Kulmatycki’s reliance on that data and the cell phone locations in the ITO, Mr. Bottomley argues that all of that material should be excised from the ITO and without it, there would be insufficient grounds to issue the warrant.
[38] I am not sure the failure to state that the applicant lived in the vicinity of the shootings constitutes a material omission.
[39] As Mr. Byrne reminds the court, the applicant’s address did appear in the ITO although he concedes that it was not referenced in the section describing the movement of the mobile phones.
[40] For the sake of argument, I am prepared to assume, without deciding, that there was an omission for the purpose of this argument. I would add that if there was an omission, it was not deliberate. The fact that the residence was contained in the ITO undermines any notion that Det. Kulmatycki was acting dishonestly or seeking to mislead the authorising justice.
[41] The real question concerns the impact and consequence of the omission. Mr. Bottomley argues that the omission is so significant it must result in the excision of the mobile phone information, maps, and cell tower information from the ITO. Mr Byrne, for the Crown, submits that if this court finds a material omission, the information should be taken into account or read into the ITO to determine its overall impact on the grounds to obtain the warrant.
[42] The law favours Mr. Byrne’s position. In Araujo, at para. 57, the Court explained what should happen if facts were found to be omitted from an ITO:
In Bisson, supra, at p. 1098, our Court gave very short reasons but also affirmed the reasons of Proulx J.A. in the Quebec Court of Appeal, , [1994] R.J.Q. 308, 87 C.C.C. (3d) 440. In his judgment, Proulx J.A. was clear that a court must look at non-disclosure of any material fact [TRANSLATION] "with respect to the affidavit considered as a whole, or even with respect to the remaining parts of it" (p. 455 C.C.C.). He quoted at p. 457 C.C.C. from the Ontario Court of Appeal in Church of Scientology, supra, at pp. 528-29: "[T]he function of the reviewing judge is to determine whether there is any evidence remaining, after disregarding the allegations found to be false and taking into consideration the facts found to have been omitted by the informant, upon which the justice could be satisfied that a search warrant should issue " (emphasis added) also affirmed in Morris, supra, at p. 558. Again, erroneous information is properly excised. In Bisson, supra, of course, the recanted information obviously had to be excised entirely and the remaining information then assessed in the totality of the circumstances. Where the erroneous information results from a simple error and not from a deliberate attempt to mislead the authorizing judge, amplification may be in order. Nonetheless, there would be no need to seek to amplify the record if sufficient reliable material remains even after excising the erroneous material.
[43] What, then, is the effect of taking into consideration the fact that the applicant lived at 23 Thwaite Avenue and in the vicinity of the shootings?
[44] Mr. Bottomley is correct that the phone location would be weakened if it was used solely to show the applicant’s presence at the various shooting scenes. On the other hand, one could argue that the fact the applicant lived in the same vicinity could support the inference that he was one of the shooters as the scene of the crime was easily accessible to him.
[45] However, contrary to Mr. Bottomley’s assertions, that is not what the mobile phone data shows in this case. What is significant is the association and contact between the applicant and Rowe—one of the confirmed perpetrators—on the night of the shootings. The phones were moving together in same general direction from the eastern part of the city to the downtown area and registering at similar sites throughout the evening and close to the times of the shootings.
[46] Moreover, the ITO disclosed that after the third shooting, Rowe’s accomplices relieved him of his gun and phone as he lay dying. Rowe’s phone then travelled in a north-western direction in a similar direction to the applicant’s phone.
[47] These movements are coupled with the fact that both men’s devices were in contact with each other in and around the shootings, and the last time Rowe’s device was used on 1 October 2019 it communicated with the applicant’s number.
[48] When the “omission” is considered it has very little impact on what appears to be a compelling set of facts that would, when considered in its totality, link the applicant to the offences and amounts to a compelling body of evidence supporting the position that a warrant to intercept the applicant’s communications would provide evidence of the offences or could assist in their investigation.
[49] For these reasons, the applicant’s challenge to the warrant is dismissed.
S.A.Q. Akhtar J. Released: 27 July 2023