Court File and Parties
COURT FILE NO.: CR-21-30000570-0000 DATE: 20231020 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Respondent – and – CORDELL RUMBAKI Applicant
Counsel: Laura Precup-Pop, Counsel for the Crown Respondent Elizabeth Bristow, Counsel for the Applicant Rumbaki
HEARD: October 12, 16 and 20, 2023
M.A. CODE J. (Orally)
Endorsement
[1] The police executed search warrants on March 5, 2020 at various locations relating to a violent armed robbery that had taken place in Toronto shortly before midnight on February 12, 2020. A number of suspects appeared to have been involved in the robbery and the various locations where the search warrants were executed related to those suspects who had been identified.
[2] The Applicant Cordell Rumbaki (hereinafter, Rumbaki) was one of the identified suspects and his residence at 35 Tulip Drive in Brampton was one of the locations where a search warrant was executed. The police seized a large amount of fentanyl as a result of this particular search. Rumbaki is presently awaiting trial in this Court on an Indictment that alleges two offences relating to the seized fentanyl.
[3] Rumbaki brought a pre-trial motion alleging that the execution of the search warrant at his residence violated s. 8 of the Charter. He sought the remedy of exclusion of the seized fentanyl from his upcoming trial, pursuant to s. 24(2) of the Charter. I heard this s. 8 motion on October 12 and 16, 2023 and reserved judgment.
[4] There is no dispute that the police had reasonable and probable grounds to believe that the robbery occurred. Indeed, much of it was captured on video surveillance that showed a white tow truck pulling up in front of an apartment building at 273 Pharmacy Ave. Various individuals entered the tow truck and others stood by outside the truck. Two individuals appeared to be pointing firearms. The tow truck driver gave a statement to the police, alleging that he went to this location in order to purchase cocaine and that he was robbed of $200 at gunpoint. He was “pistol whipped” during the robbery. When he was able to drive away and escape, two eyewitnesses observed gunshots being fired at the tow truck. Police attended at the scene and seized three shell casings. These are the grounds relating to the fact of a violent robbery at gunpoint.
[5] There is equally no dispute that the police had reasonable and probable grounds to believe that evidence relating to the robbery would likely be found at the residences of any suspects who could be connected to the robbery. The guns used in the robbery and the clothing worn by the suspects were obvious items of evidence that would likely be found at the residences of the suspects. See, e.g. R. v. Hamouth, 2023 ONCA 518 at paras. 19-21; R. v. Kalonji, 2022 ONCA 415 at para. 27.
[6] It can be seen that the only live issue in relation to the validity of the search warrant is the sufficiency of the evidence connecting Rumbaki to the robbery at 273 Pharmacy Ave. In that regard, I allowed the defence leave to cross-examine the Affiant in relation to two paragraphs in the ITO where the Affiant had summarized the evidence of the two eyewitnesses who made certain observations of two of the suspects. The Affiant, Det. Fardell, candidly admitted that he made some errors in these two paragraphs and he testified as to how the paragraphs should have read, in order to be completely accurate. I will refer to this evidence below, when analysing whether the ITO set out sufficient evidence/information connecting Rumbaki to the robbery. The real issue, in relation to the two paragraphs in the ITO where Det. Fardell admittedly made errors, is the materiality of those errors.
[7] In addition to the above evidence that emerged from cross-examination of the Affiant, the defence tendered a number of exhibits containing evidence obtained from the Crown through disclosure. In particular, the CPIC record relating to one of the other suspects (Cordel Da Silva), the video surveillance clips from 273 Pharmacy Avenue, and the video surveillance clips of Rumbaki and a female associate attending at a gas station two days after the robbery were all filed on the motion. These exhibits contained evidence that was available to the Affiant and that he relied on when drafting the ITO. There was no cross-examination of the Affiant on these three exhibits. Rather, the issue was whether he had fully and fairly set out certain facts that emerged from the exhibits when drafting the ITO. Once again, I will refer to this evidence below when analysing whether the ITO set out sufficient evidence/information connecting Rumbaki to the robbery. Once again, the real issue is the materiality of any omitted details that emerge from these defence exhibits filed on the s. 8 Charter motion.
[8] Turning to the one disputed requirement for a valid search warrant relating to Rumbaki’s residence, namely, his alleged connection to the robbery of the tow truck driver, the Affiant set out a great deal of information and evidence in the ITO, now supplemented and corrected by the above evidence that emerged at the hearing of the s. 8 motion. The Applicant Rumbaki’s counsel, Ms. Bristow, made arguments relating to both the facial sufficiency of that evidence and information, as wells as the impact of alleged sub-facial defects. In my view, the totality of the large body of relevant information and evidence set out in the ITO can be organized into nine grounds or sets of circumstances, as follows:
First, there were a large number of potential suspects involved in the robbery. The video surveillance at 273 Pharmacy showed that three suspects entered the tow truck between about 11:12 p.m. to 11:14 p.m. (suspects 3, 4, and 5, as Det. Fardell numbered them). One of these three suspects who entered the truck was pointing a firearm. Another three suspects stood by outside the tow truck (suspects 6, 7, and 8). One of these suspects outside the truck was also pointing a firearm. Finally, three suspects were involved in transporting some of the robbers. At about 11:09 p.m., one robber (suspect 3) was dropped off at the scene of the robbery in a black Chrysler sedan. After the robbery, a number of suspects were picked up and driven away in a white Hyundai. The three suspects in these two cars used to transport the robbers to and from the scene were given suspect numbers 1, 2, and 9 by Det. Fardell although nothing in the evidence indicated whether these three “transporting suspects”, as I will call them, played some other role in the robbery. In other words, there was a minimum of six persons involved in the robbery and a maximum of nine persons involved;
Second the police were able to identify the two vehicles referred to above that were used to transport some of the robbers to and from the scene. Both vehicles were rentals. The black Chrysler sedan that dropped off “suspect 3” at 273 Pharmacy, shortly before the robbery, had been rented on February 12, 2020, that is, on the day of the robbery, by a woman named Arsenijevic. The video surveillance at 273 Pharmacy indicated that the front seat passenger of the black Chrysler, at the time when “suspect 3” was dropped off, was possibly a female. The white Hyundai was similarly rented on the day of the robbery, February 12, 2020, by a man named Abijoh. He lived in an apartment building, 263 Pharmacy, that is located right beside 273 Pharmacy where the robbery occurred;
Third, video surveillance at Abijoh’s apartment building at 263 Pharmacy showed four males exiting a stairwell at the building and getting into the white Hyundai at 11:04 p.m. on February 12, 2020. These four males were believed to be suspects 5, 6, 7, and 8. This 11:04 p.m. time was about eight to 10 minutes before these four suspects were to participate in the robbery that was to take place at the nearby 273 Pharmacy apartment building. GPS record showed that the white Hyundai was in the area of 273 Pharmacy at this time. More importantly, this video surveillance at the adjacent 273 Pharmacy building also showed “suspect 3” in a hallway leading to the front of the building, also at 11:04 p.m. This “suspect 3” wore distinctive clothing: a blue hoody and blue pants with a white stripe; and a puffy black vest over top of the blue hoody. Four minutes after this “suspect 3” was seen walking towards the front of 263 Pharmacy, he was seen emerging from the rear passenger seat of the black Chrysler sedan at 273 Pharmacy. It was now 11:09 p.m. This suspect then entered the tow truck and participated in the robbery at about 11:14 p.m. In other words, five participants in the robbery appeared to have been picked up from 263 Pharmacy at the same 11:04 p.m. time, shortly before the robbery, in the two suspect vehicles. They were then driven in these two cars to the scene of the robbery. There was an obvious inference of planning and coordination between all of these suspects and the two suspect vehicles.
Fourth, the black Chrysler sedan that had been rented on the day of the robbery and that apparently picked up “suspect 3” at 263 Pharmacy and dropped him off at 273 Pharmacy, shortly before the robbery, was involved in a collision on February 16, 2020. This was two days after the robbery. The driver of the black Chrysler was the Applicant Rumbaki. He attended at the Collision Reporting Centre with a female and they reported the collision. It could be inferred from all the evidence that the female accompanying Rumbaki was Arsenijevic, who had rented the Chrysler on the day of the robbery;
Fifth, the black Chrysler sedan was seized by the police and was searched with the consent of the rental company. The police found an Esso gas station receipt inside the car dated February 14, 2020, that is, one or two days after the robbery (depending on the time of day). The police attended at the Esso gas station in Brampton and viewed video surveillance starting at 11:55 p.m. on February 13, 2020. This was about 24 hours after the robbery. Rumbaki can be seen in the video making a purchase. He was accompanied by a female;
Sixth, the police set up surveillance at Rumbaki’s residence in Brampton. They observed a grey Honda Civic in the driveway on February 27, 2020. This was now two weeks after the robbery. The Honda Civic was a rental vehicle. The police obtained information from the rental company to the effect that the Honda was rented by one Arsenijevic. The address and phone number she provided to the rental company was the same as the address and phone number provided by the Arsenijevic who rented the black Chrysler sedan on the day of the robbery;
Seventh, the surveillance officers observed this grey Honda Civic two days later, on February 29, 2020. Once again, it was parked in the driveway of Rumbaki’s home in Brampton. On this occasion, Rumbaki and a female were observed in the vehicle before it was driven away;
Eighth, a criminal records check for Rumbaki disclosed the following: in May 2014 he was convicted of unauthorized possession of a firearm; and in February 2017 he was convicted of assault and criminal negligence causing bodily harm. On both occasions he was prohibited from possessing a firearm. Both prohibitions remained in force at the time of the robbery. See: R. v. Debot (1986), 30 C.C.C. (3d) 207 at 220-221 (Ont. C.A.), aff’d (1989), 52 C.C.C. (3d) 193 at 215-216 (S.C.C.); and
Ninth, the video surveillance from both the Esso gas station (24 hours after the robbery) and from the Collision Reporting Centre (two days after the robbery), depicted Rumbaki “wearing black pants with a white logo on the left thigh”, as the Affiant put it in the ITO. At another point, the Affiant referred to the pants as having “a distinct white logo on the left thigh”. The Affiant set out stills in the ITO of these two sets of known images of Rumbaki shortly after the robbery, and then compared them in the ITO to still images of “suspect 5” at the scene of the robbery. This suspect had previously been described in the ITO as wearing “black pants with a small white logo on the left thigh (possible NIKE).” After setting out these three sets of comparative still images in the ITO, the Affiant stated that the pants worn by Rumbaki “ appear to be the same pants” worn at the robbery [emphasis added].
[9] In my view, the above summarized ninth and last of the grounds or circumstances connecting Rumbaki to the robbery was weak. Needless to say, it did not stand on its own and it had to be assessed together with the other eight grounds or circumstances. More importantly, the Affiant was entitled to state his inference or conclusion that the black pants with the white logo “ appear to be the same pants” worn by one of the robbers, provided it was stated, as it was, at the end of a series of paragraphs where the Affiant had fully and fairly set out the underlying facts on which he based that inference or conclusion. In this way, the issuing justice could make up his/her own mind as to whether the Affiant’s inference or conclusion was a reasonable one, in the same way as I have been able to make up my own mind. See: Re Church of Scientology and the Queen (No. 6) (1985), 21 C.C.C. (3d) 147 at 166-167 (Ont. H.C.J.), aff’d (1987), 31 C.C.C. (3d) 449 at 500 (Ont. C.A.); R. v. Pires and Lising (2005), 2005 SCC 66, 201 C.C.C. (3d) 449 at paras. 56-66 (S.C.C.); R. v. Victoria (2018), 2018 ONCA 69, 359 C.C.C. (3d) 179 at para. 85 (Ont. C.A.); R. v. McPherson and 49 Others, 2023 ONSC 232 at paras. 117-120.
[10] In any event, the first eight summarized grounds or circumstances set out above established a reasonably strong connection between Rumbaki and his female associate Arsenijevic and the rented black Chrysler sedan. They also set out a reasonably strong connection between the rented black Chrysler sedan and the violent robbery of the tow truck driver. On this basis, I am satisfied that there was “at least some evidence that might reasonably be believed on the basis of which the [search warrant] could have issued”, to paraphrase the standard of review set out in Araujo, infra. See: R. v. Garofoli (1990), 60 C.C.C. (3d) 161 at 187-188 and 198 (S.C.C.); R. v. Araujo et al (2000), 2000 SCC 65, 149 C.C.C. (3d) 449 at paras. 51-54 (S.C.C.); R. v. Ebanks (2009), 2009 ONCA 851, 249 C.C.C. (3d) 29 at paras. 29-33 (Ont. C.A.); R. v. Hafizi (2016), 2016 ONCA 933, 343 C.C.C. (3d) 380 at paras. 43-45 and 62 (Ont. C.A.).
[11] The various sub-facial defects in the ITO that were alleged and established to some degree at the hearing of the s. 8 motion have no impact on the above conclusion. In particular, the two paragraphs where the Affiant summarized the evidence of two eyewitnesses who observed two of the suspects, could not have changed the above analysis. Assuming the two eyewitness descriptions of two suspects had been set out in a manner that was most favourable to Rumbaki, such that he may not have resembled certain aspects of these descriptions of these particular suspects, he would still have been connected to the robbery through the above grounds or circumstances. In particular, there were grounds to believe that between six and nine suspects were involved in the robbery. The brief observations of two eyewitnesses relating to only two of those suspects, made at night in difficult circumstances, would not undermine or negate the grounds relating to Rumbaki and his connection to the robbery. Similarly, the Affiant’s description of another suspect’s (one DaSilva’s) criminal antecedents, again assuming without deciding that the description was inaccurate, could not possibly have had any impact on the grounds relating to Rumbaki. Finally, the alleged sub-facial defects relating to the video surveillance clips from 273 Pharmacy and from the Esso gas station, are based on a detailed facial comparison between Rumbaki’s appearance at the gas station (where he is wearing glasses and he appears to have a full beard) and the appearance of “suspect 5” at the robbery (where a brief glimpse at night of this suspect’s face appears to show that he is not wearing glasses and he may have facial hair but not a full beard). There are a number of difficulties with this comparison between the two video clips. First, the image of the face of “suspect 5” at the robbery is not clear. It is brief, it is dark outside, and the robber’s face is entirely surrounded by a black hoody. In these circumstances, it is difficult to discern the extent of any facial hair. Second, the fact that Rumbaki was wearing glasses when apparently driving the black Chrysler and paying for certain items at the Esso gas station does not mean that he would also have been wearing glasses if he was committing a violent armed robbery. Third, and most importantly, any dissimilarities between known video images of Rumbaki and the video images of “suspect 5” at the scene of the robbery relate only to the ninth ground or circumstance set out above. I have already stated that this ninth ground was weak and that, in any event, the first eight grounds or circumstances were sufficient to meet the deferential Garofoli and Araujo standard of review. Any sub-facial defects relating to the ninth ground, assuming without deciding that they have been made out, only weaken that already weak ground further.
[12] For all these reasons, the sub-facial defects have no effect on the validity of the search warrant. I am satisfied that there were sufficient reasonable and probable grounds, as required by s. 487 of the Criminal Code, to justify issuance and execution of the search warrant at Rumbaki’s residence. The warrant was in compliance with the law and there was no violation of s. 8 of the Charter.
[13] I also heard evidence and argument concerning the “manner of execution” of the search warrant. However, certain aspects of the argument relating to this issue were abandoned at the end of the evidentiary hearing. The only aspect of the issue that was pursued concerned certain damage to the residence that was allegedly caused by the police during execution of the search warrant. At the conclusion of her submissions, Ms. Bristow fairly conceded that the alleged damage to the residence was not sufficiently serious, standing on its own, to justify a s. 24(2) remedy. Its remedial s. 24(2) relevance, at this pre-trial stage of the proceedings, depended on the court deciding that the search warrant was invalid. Ms. Bristow reserved the right, in the event that the warrant’s validity was upheld and if Rumbaki is ultimately found guilty, to seek a s. 24(1) sentence reduction Charter remedy at that stage for the damage that the police caused at the residence. See: R. v Nasogaluk (2010), 2010 SCC 6, 251 C.C.C. (3d) 293 (S.C.C.); R. v. Collins, 2023 ONSC 5768 at paras. 69-71.
[14] For all the above reasons, the s. 8 Charter motion is dismissed. The evidence seized upon execution of the search warrant is admissible at the upcoming trial.
M.A. Code J.
Released Orally: October 20, 2023